IX.

BATTLE OF GOG AND MAGOG.

WE have now reached a point in the tragedy where the English language breaks down and Pius Æneas must the rescue and tell—

And, giving the “Æneid” with some variations, I might go on—

I consented to be in conspectu on Mr. Dane's earnest representations that matters might come up on which I was better informed than he, and on which my statements might be important. Of course, after all this trouble, it was not worth while to run any risk through mere personal feeling.

At the appointed time, accordingly, the combatants appeared upon the arena at Mars Hill House, in martial array. Messrs. Hunt, Parry, & Co. were led by a lawyer, Mr. Sudlow, whose purpose, it soon appeared, was not to open, but to postpone the battle. I must admit I listened in amazement. Here, after sixteen months of backing and filling, three months after an arbitration had been agreed on, and more than a week after the day had been appointed by them and accepted by me, they appeared for the purpose of saying that they could not go on with the case. I remembered with astonishment that on the thirteenth of November preceding, the affair had seemed so simple to Mr. Hunt that he had written to one of those friends of mine to whom he had wished and I had declined to refer the case, “If you and I, business men, could have half an hour's talk together, and M. N. would abide by your decision, I think that half hour would be sufficient to settle the whole thing.” Whereas, now, before the man whom I had chosen, three months did not seem long enough. The reasons presented by Mr. Sudlow were, first, that the preliminaries were not arranged. The referees themselves averred in substance that this could be done in five minutes on the spot, and there need be no delay on that account.

Mr. Sudlow said, secondly, that at an early stage of the affair I had waived all legal claim, or had never made any, yet that I now appeared with a lawyer as if to establish a legal claim; that this was an entirely new phase, and one which they could not meet without due preparation. It was alleged in reply, that our courts do not distinguish between legal claims and claims in equity, and that however I might present my claim, it was as a debt and not as a gift; that it surely would not be held by Messrs. Hunt, Parry, & Co., that the reference had been called to arbitrate upon a gratuity. After a good deal of talk, Mr. Dane called for the authority by which they said I had waived all legal claims; and they produced the letter sent them by me on the 29th August, 1767, about eight months before this time, which said, “Of course I know that legally I have no right to go behind a contract, and therefore no legal claim upon you for additional money on those books that are named in the contract.” Mr. Dane pointed out, that, even on this ground there was no waiving of legal claims, except on those books named in the contract referred to. As only three books were embraced in that contract, as one was published under a different contract which we wished carried out, and five were published without any contract at all, the postponing of the case on this pretext was simply preposterous. It seemed to me, moreover, though I said nothing, that even if I had supposed eight months ago that I had no legal claims, I might have subsequently learned otherwise, and that any person who really wanted the case looked into and satisfactorily settled would never have been deterred by so slight an obstacle. But the contest as it stood was two-thirds legal, and it would seem as if an enterprising firm of four shrewd business men might have been prepared to illustrate it in eight months if they had given their minds to it.

Mr. Sudlow affirmed, thirdly, that Messrs. Hunt, Parry, & Co. had supposed they should meet me alone for a friendly reference; that on such a supposition they had arranged to be represented before the referees by one member of their firm, Mr. Markman, who had accordingly prepared to present the case; that until they received Mr. Dane's letter of interrogatories of the 16th instant, they had not supposed I should employ counsel, but if I employed counsel they also should employ counsel; that they were not prepared to appear with counsel, and must have a postponement for the purpose of making such preparation, and as Mr. Hunt was to leave for Europe on the following Monday, the postponement must hold till after his return from Europe.

Mr. Dane asked them if they meant to allege that they had stipulated that I should not employ counsel. They said they had not so stipulated, but that they supposed I would not employ it. Mr. Dane then said that he had been my adviser from the beginning, both as my friend and as a friend of Mr. Hunt, Mr. Hunt having done him the honor to speak of him as an old friend; that he had had frequent communications with them on this subject, as they well knew, and that they had made no objection to his connection with it; that it made no difference except in name, whether he was called my counsel or my friend; that, although he was a lawyer he trusted he was not on that account to be excluded from the circle of my friends, and that, under the circumstances, it might be proper for him to state that my name had never been on his account-books, and that he had all along counseled me only as a friend. “This thing,” he said, “is not to be misunderstood. We want to be definite. Will you say that you will not proceed because M. N. has counsel,—if you choose to call it so,—when she never said that she would not have counsel, nothing ever having been said about it?”

They still reiterated their assertion that under the circumstances they could not go on with the case. As the business had looked to Mr. Hunt so simple that two business men could settle it in half an hour, it would seem as if almost any kind of a lawyer might have mastered it in the time between the 16th of April, when the idea of my having counsel first dawned upon the unsuspecting minds of Messrs. H., P., & Co., and the 22d, when the hearing was to be had. The firm must rank law far below commerce, if a lawyer could not understand in six days with three men to help him, what a merchant could comprehend in half an hour alone.

Mr. Dane then consulted with me, and I told him upon the impulse of the moment that I would go on. This, perhaps, was hardly prudent or proper. But there had been so much difficulty and delay in bringing things even to this stage, the trouble had weighed so heavily and disastrously upon me, that anything seemed better than an indefinite postponement. Moreover, the reasons which they alleged for delay appeared to me mere quibbles. I thought I saw that they did not design to have any hearing, and that if we should ever get together again, there would be just as much reason for further delay as now, and if I did not secure a hearing now, I never should. I felt that the referees must surely think they had been summoned on a fool's errand. I was quite aware not only of my inability to present the case adequately, but to present it at all in person,—but I had the “brief,” which Mr. Dane would have used, and I had my formidable history in which the referees could quarry at pleasure. Even if I should lose the case, I was not without resource; for upon the instant when I saw that Messrs. Hunt, Parry, & Co. were about to evade the only thing which I had wanted, namely, a fair and full discussion, there came into my mind another tribunal which it would be impossible for them to evade, and before which I could present my case with or without counsel, in my own time and way. I had all along had a vague feeling that something of service to my craft must come out of all this harassment to me, though no definite idea had ever evolved itself. But at that moment, tingling with indignation and contempt, and a sense of outrage,—an outrage greater than appears here, greater I think than the junior members of the firm knew or intended, but not greater than Mr. Hunt knew, and I believe counted on,—at that moment I resolved that so far as I could help it, no person should ever be placed in the position in which I found myself. If any writer thereafter should get into such a snare, he should not blunder in as I had done, but walk in with his eyes open. I thought that my brief and my “Universal History” would be enough to draw the enemy's fire. I should know where they stood, and if I could not understand the analysis and cultivation of the soil, I could at least map out the ground for other investigators. I felt that I could better afford to lose my case than my time. Mr. Hunt had calculated accurately enough the quality and amount of resistance he was accumulating against me. The thing he had not sufficiently calculated was the amount of force that could be brought to overcome that resistance.

Mr. Dane then said, that, having consulted me, he had one more proposition to make; he was not himself surprised at the turn affairs had taken; he had at the beginning advised me to have recourse to the courts as the only sure way of redress, but that I had always refused to do so; that he had repeatedly predicted—even to the preceding day—that some way would be found to avoid a hearing; that he thought it hardly fair for them to force me to go on alone, whom they knew to be entirely unfamiliar with the details of business, who had scarcely in my whole life had any business transactions except with themselves, and had left those entirely in their hands, who had not indeed expected to appear at all in the case, and had only the night before reluctantly consented, at his solicitations, to be present—“If you, gentlemen, think it fair and honorable to insist now, at the last hour, that M. N. shall, without any friend, and entirely unprepared, meet you alone, and conduct the case herself, she will do so. We have come here in good faith to have a hearing, and if such are the only conditions on which it can be had, we will accept them, although I think them hard. We will accept your understanding of the conditions instead of our own. Your firm shall have its representative, I will withdraw, M. N. will do the best she can, and you may see if you can make anything out of it.”

Mr. Parry seemed to think, like David Copperfield, that this was a disagreeable way of putting the business, and wished me to state that I did not feel that they wished to take any advantage of me. Mr. Dane said, “I do not know what M. N.'s feelings are. My opinion is understood, and I shall state it whenever and wherever I choose.”

As my feelings were not under arbitration, I declined, through Mr. Dane, to make any declaration concerning them, but said I wished to go on with the case. Mr. Dane and Mr. Sudlow then withdrew, and the firm were reduced to the painful necessity of proceeding, although their anxiety in regard to my feelings was not relieved.

They did not, however, proceed according to their own statement of what had been their understanding concerning the mode of procedure. Before Messrs. Dane and Sudlow withdrew, Mr. Sudlow said that they were to be represented by one member of their firm, and that Mr. Markman had prepared himself for such representation. Mr. Dane had distinctly stated that he withdrew on this understanding. After he was gone, I expected that Messrs. Hunt & Parry would also withdraw, according to their statement of their original intention, and its acceptance by Mr. Dane. Instead of which, Mr. Parry came to me and asked me if I had any preference as to whether the whole firm should remain or only one member of it. I conceived that this matter had been previously settled by express stipulation, that they had no right to open it again, and place the decision on my preference. I disdained to receive as a favor what seemed to me the least of my rights, and I refused to express any preference about it.

Mr. Parry said, if I had no preference, of course they would rather stay, and they all stayed.

The following paper was then drawn up by the referees and signed by Messrs. Hunt, Parry, & Co. and myself:—

“Athens, April 22, 1769.

“There being a controversy between Hunt, Parry, & Co., as successors to Brummell & Hunt of Athens, and M. N. of Zoar, in regard to the amount due from the former to the latter for proceeds arising from the publication and sale of the books of which M. N. is the author, it is hereby agreed between the parties to the controversy to submit the points in dispute to George W. Hampden and James Russell, as friendly referees, with the right to the referees to choose a third as umpire, either on the general merits or on any specific point that may be submitted to said third person. And both parties to this agreement hereby bind themselves to accept the award of said referees as binding and conclusive, without reserving any right of appeal to any court of law.

“In witness whereof this agreement is signed by both parties in presence of the referees, to whose custody it is committed.”

As I did not intend ever again to sign a paper whose import I did not fully comprehend, it may be supposed that I listened attentively to the reading of this paper. As I had no design to appeal to any court of law, and as it did not preclude me from appealing to the court to which I had made up my mind to appeal, I had no hesitation in signing it.

The case being thus begun, nothing remained but to place in the hands of the referees—

The “entire case in all its bearings” between the firm of Brummell & Hunt and M. N.—as presented by the latter.

Compiled chiefly from the original documents.

In two parts:—

Part First. The case in brief.

Part Second. The case in full.

Each part complete in itself.

The part to be selected according to the taste, object, or judgment of the reader.

October 22, 1768.

THE CASE IN BRIEF.

When Messrs. Brummell & Hunt published “City Lights,” they made a contract to pay me ten per cent. on the retail price of the book after the first thousand copies were sold. I did not know that a contract was necessary, but they told me it was, and they also wrote my name in pencil to indicate where I was to write it in ink.

Afterwards they published “Alba Dies” and “Rocks of Offense,” without any contract. When “Old Miasmas” was about to be published, it occurred to me that if a contract were necessary in one case, it was in another, and I suggested it to Mr. Hunt. He accordingly had a new contract made out, embracing these three books, in which the firm agreed to pay me fifteen cents a volume for each volume sold. I think it must have been at the time this contract was made out—but I cannot be sure as to the time—that Mr. Hunt told me that they were going to pay me a fixed sum, fifteen cents on a volume, instead of a percentage; that that was the way they were going to do with their authors, on account of fluctuations, general uncertainties, and so forth. I made no objection. I felt none. I assented as a matter of course. I thought that was his business and no affair of mine. I should have thought it intermeddling, and offensive to friendship, to take exception, and I did not dream there was anything to take exception to. I had perfect faith in Mr. Hunt, and reckoned my interests far safer in his hands than in my own.

In the winter of 1767-8, I suddenly awoke to the fact that ten per cent. was the ordinary rate of payment to the author, and that I had been receiving for several years only six and two-thirds and seven and one-half per cent. At the time Mr. Hunt changed his mode of payment, my books were selling at a dollar and fifty cents a volume, so that ten per cent. and fifteen cents were the same. I was therefore the less likely to take exception to the change. The contract embraced “Old Miasmas,” which was about to be published, but when it was published the price of it and of the rest of the books was put at two dollars, and has remained so ever since.

All the books that have been published for me by Messrs. H., P., & Co., since “Old Miasmas,” have been published without contract. On each of these books, five in number, they have paid me fifteen cents a volume, except “Holidays,” on which they paid ten cents a volume. “Holidays” was sold at retail for one dollar and a half; “The Rights of Men” for one dollar and a half; the others were at the price of two dollars. “The Rights of Men” was not published until after I had made objection to the low price I had been receiving.

Pearvilles and Troubadours of Corinth, and publishers of Athens, have told me that ten per cent. on the retail price is the customary pay of authors.

I claim that Messrs. Brummell & Hunt should pay me the difference between what they have paid and what ten per cent. would have been, and that on all books sold in the future, they should pay ten per cent. I agreed to less, in full faith in their uprightness, and in the belief, based on Mr. Hunt's statement, and on my own high opinion of their justice and liberality, that I was faring just as others fared.

Messrs. Brummell & Hunt refuse to pay me more than six and two-thirds and seven and a half per cent. either for the past or the future, except on “The Rights of Men.”

To which I had added, February 26, 1769:—

“I claim now, after fourteen months of what theologians call ‘waiting in the use of means,’ that they should reimburse me for the time and trouble it has cost me to enforce my claims.”

THE CASE IN FULL.

The case in full was the history just given; compiled, as its perusal shows, from various motives, at various times, for various persons. A few letters between Mr. Dane and myself have been inserted to meet sundry points which afterwards came up. A few slight verbal alterations have been made, and some elegant extracts from the newspapers have been introduced. Otherwise, the statement here made, covering the time from October, 1767, to February, 1769, is the one which was presented to and acted upon by the referees. It was indeed a formidable object, and those unhappy gentlemen may be pardoned if, for a moment, as they held it in their hands, they looked into each other's faces in dismay. But it gives me pleasure to add for the credit of our common humanity, that they met their fate like men, and by a well-organized system of “ride and tie” arrived at their journey's end in a much fresher condition than could have been expected of mere mortals.

When the reading of this document was completed, Messrs. Hunt, Parry, & Co. took up the parable, Mr. Parry being the first spokesman. And here I may say, that notwithstanding their assertion that they had expected to be represented by one of their firm, Mr. Markman, and that on such expectation Mr. Markman had prepared a presentation of the case, when I gave up my arrangements and consented to adopt theirs, their own seemed to have been changed. Instead of one member having it in charge, they all had a share in it, perhaps on the Pauline theory, that if one member suffer, all the members must suffer with him. Mr. Parry began, speaking from notes. Mr. Hunt followed, and Mr. Markman brought up the rear with day-book and ledger. Each one seemed to have his part carefully marked out and assigned to him, and if it had not been for the assertion that they had intended to be represented by one, I should never have suspected that the subsequent management of this case by all three, was a sudden and unaccountable afterthought.

Mr. Parry began by giving a general outline of the trouble as seen from the “Firm” point of sight. He admitted the pleasant relations in which we had previously stood. It seemed that in the latter part of 1767, I had something of a disappointment that the balance due me was not larger, and cast about to see how it could be increased, that the Segregationalissuemost alleged that a larger sum was generally paid than I had received, and Mr. Jackson seemed to confirm this statement; that Mr. Dane, to whom also I had had recourse, had not alleviated my uneasiness, but had rather poisoned my mind against them, as could be seen by the attitude he had assumed here this morning, saying that he had never believed I should have a hearing, and so forth; that as a result of it all, I considered that I had a claim for additional money, a claim that lay back of the contracts, as I had said; that I believed they had paid me less than they paid others, and in short brought against them a charge of general disingenuousness.

In replying to Messrs. Hunt, Parry, & Co., I was obliged to omit allusion to sundry points of minor importance, out of a tenderness to the referees—a tenderness of which, probably, until this moment, they had no suspicion. To the readers of this narrative I have no tenderness whatever, since the matter lies in their own hands, and they can dismiss it at pleasure. I shall therefore touch upon various omitted points while sketching the outlines of the defense, and will say here that Mr. Parry's declaration regarding the cause of “The Great Awakening,” is strictly true. My eyes were not opened by any profound reflections on the “Origin of Evil,” or the “Analogy of Religion, Natural and Revealed, to the Constitution and Course of Nature,” but simply by the ignoble circumstance that I wanted money in my own miserable purse. The only consolation to be found for this shameful disclosure, is the recollection of that three pence a pound on tea which produced George Washington and the great American Republic. I have, however, in mitigation of this sordidness, brought forward one or two letters, which show that I wanted the money for others—the inference naturally being that I was not in so imminent danger of starvation that the difference between meum and tuum was in my mind entirely obliterated.

Several letters between Mr. Dane and myself have also been introduced for the purpose of showing to what extent my mind was susceptible of being poisoned, with what ingredients the attempt was made, and how far it assimilated and how far rejected these ingredients. My opinion is, that if such poisoning be a capital offense, my “attorney” and myself must die together, for I fear we are equally guilty.

So far as Mr. Jackson was concerned, Mr. Parry said that he had been unsuccessful in business, was not now a regular publisher, and he did not think his testimony of what was a custom several years ago was available in deciding what was the custom now. Regarding Messrs. Troubadour, Pearvilles, and others, he preserved a discreet silence, but objected to the introduction of the testimony of other publishers, as Messrs. H., P., & Co. conducted their business with their authors alone, without thinking it necessary to consult other publishers. Unless, therefore, I insisted upon other publishers being brought in, they should prefer to have them kept out. In reply to a question, Mr. Parry said he did not know what was the custom of other publishers in regard to paying authors. Now it was a very important part of my plan to have other publishers appealed to, but I was not in a condition to insist upon anything. I did not know what to do with them, even if I had them there. I certainly could not put them through a catechism, and I had no one to do it for me. So I said nothing, and the publishers were of course ruled out—by default, is it?

Mr. Parry deprecated any attributing of hostility to them. They had been desirous to have the matter amicably settled, so desirous that they had even offered to refer it to various friends of my own, with one of whom they had no acquaintance at all, with another of whom they had but a slight acquaintance, but whom they thought competent to settle it; and they had also offered to pay me ten per cent. on all future sales, all of which I had declined.

With regard to the question of fraud, Mr. Parry would say in a general way, that I went to them an unknown author, very urgent to publish “City Lights,” that I had a great deal of confidence in them, spoke emphatically of the important advantage to me of being published by Brummell & Hunt; that in short, I came to them in such a way as almost to hold out to them a temptation to defraud me; so that if they had been inclined to it, they would have been likely to do it then. He produced the following extracts from letters written by me to Mr. Hunt, to sustain his charge. And if the printing of these letters seems somewhat appalling, let me assure the objector that it is a pleasing entertainment compared with the sensation of hearing them read before five men, two of whom are indifferent to you, three hostile, and four strangers.

I am moved here to say, that those persons who during the present century have been annoyed by letters from this now repentant and remorseful writer, may find ample revenge for all their discomfort in a knowledge of the manner in which these letters have returned to plague the inventor.

The first is dated April 14, 1762.

“I hope this letter sounds light and airy to you. I assure you it is very ghastly joking for me. I am burdened with a terrible secret which I wish to confide to you, at the risk of losing your complaisance forever. I dread to come at it, but I don't see how I can beat about the bush any longer. I am not at work on anything for the ‘Adriatic.’ You would not print my papers, and you would not answer my letters. So Satan subsidized my idle hands, and I thought I would make a book. So I made a book. It is not about the war, nor the times, nor anything sensible. It is not a novel, nor a history, nor a poem, nor a criticism, nor a volume of sermons. Somehow it does not look like a book, nor sound like a book, nor act like a book, but it is a book. I can make ‘my davy’ on that. There is a title and a place for a preface, and an introduction, and I can put in an appendix if I wish, and explanatory notes and a glossary, and errata, and if you will publish it I will give you the copyright and the premium, and the patent, and the monopoly, and all the dividends, and if there is anything else, that—its title is ‘City Lights.’ It is blocked out in twelve chapters.

“‘1. Moving’—That gets us out of the old house into the new one, and gives us a local habitation and a starting-point. I wrote it for the A. M. but you stunned me so with hurling back my paper pellets at my head that I did not dare try it again.

“‘2. The Bank’—That means a grass bank, not a money bank. That has been printed.

“‘3. My Garden’—That you have heard of. That was what I wanted the proof-sheets for, and you may conceive how guilty I felt. It seemed all the while like when Joab said to Amasa, ‘Art thou in health, my brother?’ and took him by the beard with the right hand to kiss him, and smote him under the fifth rib,—the wretch! But you see I was forced to be wily. If you had known that I was conspiring against your peace of mind, of course you would not have put the weapon into my hand. So I had to take you by the beard tenderly, or I should not have got the fifth rib at all, and that is the backbone of my book.

“‘4. Men and Women’—Been printed.

“‘5. Tommy’—Been printed.

“‘6. Boston and home again’—Been printed—personal adventures of a rustic in the city.

“‘7. Friendship’—In your hands—will be when you get this.

“‘8. Dog-days’—Been printed.

“‘9. Fading as a leaf’—Or something of that sort—knocks the bottom all out of the autumnal, sentimental kind of moral reflections—been printed.

“‘10. Winter’—Snow and coal-fires—been printed.

“‘11. My Flower-bed’—A success, to offset the failure to ‘My Garden.’

“‘12. Happiest Days.’

“Now, the question is, will you let me send it to you? You see it is almost all in print, so it will take but a minute to run it over—a longish kind of a minute, of course. I have not the least idea whether it is worth publishing or not. I don't want it published unless it will reflect credit on the literature of the country. Now, may I be forgiven for telling a lie; but I don't want it published if it will reflect discredit—I will stick to that. I don't I want it published unless it will be read and liked by cultivated people. I don't want it to be at the level of school-girls and shop-boys. I want it to be such a book as —— or —— or —— or —— or —— might take into the country, not for the thought or the theory, but for amusement, and such as would amuse them; such as Englishmen might read and value for its little side-lights thrown on American country life. I don't aim to do anything above amusement, and if it wont do that it is a failure, for there is nothing else for it to do. You see it was not written with any view to a book. I suppose I have enough things printed to make a dozen books, and I have taken out enough for one about the size of ‘Sir Thomas Browne.’ So far as the people I write for are concerned, I think now is as good a time as any. There is a kind of hiatus in book-making, and that gives me a chance for a hearing. My audience is more at leisure now and not much poorer. It is specially adapted to the times in that it has not anything to do with them, and so will be a recreation if it is not a bore. I should not think it would sell, I must say, for there is not anything of it. Still, all the parts of it that have been printed have ‘taken’—I don't understand why....

“I have a certain vivacity of style which would be well enough if I had anything solid underneath; but I have no thought, no depth, no severe and careful culture, no comprehensiveness, no substance, nothing to raise me above the penny-a-liners, except perhaps the matter of vivacity, or whatever it is—but that is nothing to depend upon—no resource, no capital. My chief talent consists in raising great expectations—which will turn out like Pip's, I expect. It is no fault of mine. I do conscientiously the best I can; you are an illustration of this thing. You expect ‘A number one’ things of me. But you have no ground for it. I have sent you my ‘A number one’ things already, and you see they are not ‘up to the mark.’ But they are the very best I can do under the circumstances. What right have you then to expect anything better? I consider it a great misfortune that somehow my performances seem to give a promise that is entirely unwarrantable. O well, I must stop some time, so I suppose I might as well stop here. All is, may I send the thing to you? It is all ready, only I have to take it to some book-binder somewhere to have the things pasted in. I hope I do not annoy you by asking you—not much I mean; of course it must annoy you a little—I assure you you need not have the slightest feeling about saying no. It would be no kindness to me to suffer me to disgrace myself or my country. There is only one sin that I will never forgive. If you ever tell anybody, my wrath will kindle against you into a perpetual fire; and you know about furies, and scorned women, and the wicked place! I hope this will get at you in some little crack between two ‘mad’nesses, but if it does not, pray don't turn ‘mad’ at me. I can bear anything but to be snapped up. I wonder if you would be more likely to be pleased if I had stopped before; if so, you can just turn back to the place where your temper began to crack, and make believe ‘Yours, respectfully,’ came there. But you have been so generous hitherto that I am afraid I perhaps presume too far—now I am sure that compliment is very well turned, seeing that kind of thing is not in my line—but the fact is I want you to stay good-humored so much that I would say anything!

Yours very truly, M. N.”

The letters from Mr. Hunt in reply to mine, are inserted here for a better understanding of my letters, and to preserve the unity of the drama. As I did not anticipate the appearance of mine before the referees, Mr. Hunt's were not arranged with reference to them, but have been placed here since. Several sentences concerning magazine articles are quoted, to show that though I had not printed a book I was not wholly unknown as an author at the time of the publication of “City Lights,” and that therefore the risk was not quite so great as one would perhaps judge from Mr. Parry's statement, which will presently appear.

MR. HUNT TO M. N.

“Send along the book by all means, and I will give it early attention.... A book from your hand is worthy attention, and it shall have it from yours truly.”

APRIL 20, 1762.

“I have read ‘Moving’ and the ‘Friendship’ paper to-day, both of which I shall be glad to print in the Magazine if you will let me.... As soon as I can find more time I will make up my mind about the book.”

APRIL 25, 1762.

“I wish to begin at once to set up the copy, and no time should be lost in waiting. October will soon be here!

“I think we shall be able to get into a volume your articles, in form like ‘Old Sir Thomas.’ At any rate I shall try to do so.”

APRIL 29.

“Why do you hop about so when you attempt an epistle? I can't find the place. Now you are on the right side of a sheet, and, presto! I can't tell next where you are. A reader of your letters ought to stand on his head half the time. Page two is nowhere to be found, without twisting the spinal apparatus fearfully. Why don't you have a plan and stick to it? Or are you a law unto yourself? (See Hebrews).

“Let me tell you what I would like to do: Print in the Magazine several of the articles in your proposed volume, postponing the publication in book form for the present. ‘Moving,’ and ‘Friends and Friendship,’ I certainly wish for the Magazine.... Your book will keep, won't it? Meantime the papers, as printed in the ‘Adriatic,’ will not badly advertise the coming volume. Do you agree with me?...

“Your ‘My Garden,’ is a hit number one. Crowds of inquiries for the author's name beseech me, but I cry ‘mum’ to the myriads.”

M. N. TO MR. HUNT, MAY 1, 1762.

“Can't you read figures, dear? Don't you know a five when you see it? Aren't you able to tell a two from a four unless they are labelled? I fondly believed you were, but as indications point the other way, I will have everything in a right line hereafter, so that I shall just have to drop you into the groove at the beginning and you will spin along of yourself to the end. I am your serf and slave—till I get the upper hands of you, which I shall one day—I always do, sooner or later. Don't be frightened, though. I shall roar you as gently as a sucking-dove. And please remember that Hebrews is not Romans—or, as one cannot remember what he never knew, please be informed. Aren't you glad you have somebody who can always set you right?

“There is one thing about my letters though;—when you do find the place you know where you are. Yours I don't. Now what do you mean? Do you mean that my book is not good enough to publish? If you do, why don't you say so?

“When I was in Congress anything that was indefinitely postponed was as good as lost. I wish you would say, straight as an arrow, just what you mean. You need not be afraid of wounding my feelings. I have boxed them up in ice and sawdust and set them on the top shelf till such time as my fortunes shall permit me to indulge in such luxuries. I am rhinocerine and pachydermatous. Lay on Macbeth, or Duff, or whoever you are.

“You see it is absurd for you to talk about postponing the publication of a general kind of book if it is worth publicating at all. If it were what I want it to be, you would rectangle it up in ten minutes and have it out. If it is not what I want it to be, I don't want it published at all. If it is only so-so, pay-the-way-y, very good, I will have none of it. I want it to be triumphantly good. I don't want any drawn battle. I want an unconditional surrender, with fort, guns, and ammunition. If I can't have that I don't want anything. Now can I have that? You tell me. I know you know. I have been flattered to death all my life.... If the book is coarse, and violent, and insipid, and diffuse, and superficial, and egotistical, and worthless, say so. That is just what I am afraid it is, and it keeps me awake nights.

“It occurs to me that possibly you may have so much on your hands that you cannot publish it. I don't believe that, though. People can always find time to do what they will to do,—any way I can, and I am a female Atlas. But if it were so, and you would tell me that you thought the book was good, I would get somebody else to publish it. I should not like to do it to be sure. I have set my heart on your publishing my first book. You see, as Mrs. Browning says, ‘I love high though I live low.’ You know if you aim at the sun you won't probably hit it, but you will hit higher than you would if you made your target out of a scrub oak. I don't want to go into the world through the back door. I want to go in, sir, by the main entrance! with drums beating and colors flying! with body-guard on each side, and carriages drawn up in line! That means you—Brummell & Hunt is the triumphal arch and the Seventh Regiment! But you see I am tired to death and disgust of waiting. It is three years now since I took to writing in good earnest, and all this while I have been burrowing under ground. It is almost two years since I sent ‘My Garden’ to the ‘A. M.’ Two years apiece for the other two things will be four years, and by that time I shall be a coral reef, with all the pulp of my soul dried up, and nothing left but the dead shell. You understand I am not impatient of preparation. I am not only willing but eager to work. If I thought I could be more worthy by waiting; if I thought crudeness would mellow, I would wait; but the book is done. It is not a question of improving it, but to be or not to be.

“It would be a great disappointment, and I am sure a positive loss to me, not to have you publish the book if it is fit to publish. You would give me a prestige which I assure you I have sense enough to value. And yet will not the book, if it is good, make its own way, even if it should be born in a garret? You see I look at this from my standing-point only, for you of course are too well established to be disgraced by my failure or illustrated by my success. I am the only one affected, don't you see? If I fail it will nerve me. If I succeed it will give me a point of support. You understand, by success I don't mean that I desire to make a sensation. The public, whose countenance I court, would be comprised in a hundred men and women. If I should secure their suffrage, the rest of the world might go whistle. If the hundred put me on the pedestal, the ten millions cannot pull me down, for it is quality and not quantity that leads in this world, no matter what the world thinks.

“I want to be out too, because that thing is only the inch of an ell. If that succeeds I have half a dozen others—‘City Lights,’—in the same style—and ‘Rocks of Offense,’ which is to put everybody right in religious matters. You don't know what my prophetic style is? I tell you it leaves Isaiah and Jeremiah nowhere! Then there is ‘Night Caps’ for children, and ‘Holiday Stories’ for all the holidays, and ‘Stories of the Old School-House,’ etc. I have sent those to the Tract Society and all the Eleemosynary Institutions, but they were not considered pious enough, and I am afraid you profane establishments would think they were too pious, so betwixt the clergy and the laity I should come to the ground with a thud, from which, like Antæus, I always gather strength.

“I don't believe you half read my letters. I don't know that I blame you, but it leads you into obvious mistakes. You say you want to print several of the articles—two certainly. Goosey-goosey-gander, where shall I wander; did not I tell you that all but those two had been printed before, and the last one which you had rejected? Why do you talk?... I am going to Athens to buy a new dress the first pleasant day of next week after Monday. Would you be willing to send those two papers around to——? I can look them over and manipulate them, and return them the next day. If you obey the impulse of the natural heart, unmodified by pressure of editorial duties, you will tell me, as General Taylor told Santa Anna, ‘Come and take them.’ And I would be glad to do it and talk about these matters instead of writing. But you must know that I cannot talk—I say what I don't mean and I mean what I don't say, and so an interview would be entirely inconclusive and unsatisfactory.

“You will understand from this brief epistle that it is not the book that won't keep so much as it is my own self.

“If I have said anything here that I ought not to say, pray make believe that—there, I just remember that my little book is not ‘Night-Caps’ but ‘Make-Believes’—there is a book ‘Night-Caps’ already. Well, what I was going to say is—make believe I have not said it. I am writing in greatest stress of time, for our mail goes at unearthly hours, and I cannot stop to be proper. I wish you would give me a general absolution, retro-and pro-spective, till this business is over. Yours very truly.”

MR. HUNT TO M. N.

“I see we must speak by the card when we write to Miss Wont-understand.

“This then, is what I wished to say in my last clear and felicitous epistle.

“Of course your book cannot be published till the articles I propose to print in the A. M. have appeared there. This is what I meant by postponing the issue of the volume. I wished to say that, B. & H. would print your book, certainly, but the time when must at present be unsettled for the reason above given. I have read the articles now and like them hugely. They are capital stuff for a book, full of all readable qualities....

“I will not eat you if you call in here when you come to town, but you must have your own way.”

All the confidence, and all the respect for the house of Brummell & Hunt, which these letters indicate, I not only admit, but I introduced my case by avowing that I thought them the head and front of all publishing houses.

With regard to the exemption of fifteen hundred as the first edition of “City Lights,” Mr. Parry said that the word edition meant nothing as to number. It meant simply a single issue. In reply to a question, he said he did not know what was the usage of publishers in this regard. They had sometimes exempted as many as two thousand, and had known cases in which five thousand had been exempted, and, I understood him to say, had done it themselves. One thousand, he said, was the usual number. Being asked what would be his own understanding of an edition, if nothing were specified, he said he would frankly admit that he should suppose it meant one thousand; that when any larger number than a thousand was exempted, it was their custom always to specify the number; that he did not know why it was not done now, and presumed this was the only time they had exempted more than a thousand without specifying the number. The reason of this large exemption was that there was so much risk in publishing a new book, and that this book was published in a style that was unusually expensive. It cost a great deal more than any other on their list; that there was no prescribed usage in such matters, and they could have exempted more, but had no desire to do so. I had said that if it were to cost more, they should have told me.[11] They had letters of mine showing that I did know it cost more, but that I was so desirous to have it printed in this way, that, in my own language, which Mr. Markman read and Mr. Hunt repeated with an air which showed that whatever literature had gained, the stage lost its chief ornament when Mr. Hunt went into the book trade, “I went down on my knees to you to have it like Sir Thomas Browne.”

In my original statement I had said, “When the first book was to be published, Mr. Hunt asked me what style I should like, and suggested that of the ‘City Curate.’ I preferred ‘Sir Thomas Browne.’ He made no objection, nor even hinted that it was more expensive than the other. [Then came the quotations.] “I do not recollect that anything was said about it afterwards. The following books were simply published in uniform style with the first.” This is my recollection of the matter, which is simple and commonplace enough.

From my letters at the time, however, the firm of Brummell & Hunt infer a thrilling dramatic scene in which Mr. Hunt was the obdurate autocrat, or the wise and thrifty guardian, as the case may be, who, like Mrs. John Gilpin, though on publishing bent, had a frugal mind; but was at length moved by me,

to lay aside prudence and launch out into a style of publication which could be met only by some extraordinary sacrifice on my part, I professing to be until this late disclosure ignorant both of style and sacrifice.

I give the correspondence, inserting Mr. Hunt's letters to throw light on mine—the latter only appearing in Mr. Parry's defense.

Let it be remembered that the book was published September 18, 1762.

MR. HUNT TO M. N., SEPT. 2, 1762.

“It is our intention to publish ‘C. L.,’ on Saturday, the 13th of this month: not before, certainly. If any great excitement befall the country, we shall postpone till the following Saturday....

“Your new preface is pungent as a pepper. Your motto seems to be, ‘Je suis prêt.’

“Give it to 'em any way you like. A proof of the preface will go to you in a few days. As to the binding of your book, I propose same style as ‘Rs. of a City Curate,’ gilt top leaves and beveled boards. Do you like that way?”

M. N. TO MR. HUNT, SEPTEMBER 3.

“For you to set up and pretend to ask me if I like ‘City Curate’ style, when you knew I went down on my knees to you to have it like ‘Sir Thomas Browne,’ and you said you would.

“The next book you publish for me, I am going to stand over you with a grip on your coat-collar from the time you give the first copy to the printer till the first edition stands on the shelf, and see if you cannot be kept to something. I don't know what your beveled boards are—only if you put a d in, the adjective would apply more accurately—and I don't want my book to be boarded up any way, and if there is anything I hate, it is gilt tops, and if you don't do it as I want it, I don't care how it is done.“

MR. HUNT TO M. N., SEPTEMBER 15.

“We shall publish, unless a defeat crowns our victories, your book this week. It will be a beauty, and look like ‘Sir Thomas Browne,’ in its red waistcoat.”

[This letter was delayed and not received till the following letter was partly written.]

M. N. TO MR. HUNT, SEPTEMBER 20, 1762.

“You darling Traddles,—why do I call you Traddles? Because you are ‘the dearest fellow.’ It was not Traddles, though, was it? It was his wife, and she was not a fellow but a girl—never mind. The fact I wish to impress upon your mind is, that you have tricked out my book so beautifully that nothing could be lovelier. You would not have done it though if I had not threatened you within an inch of your life, would you? You don't know how delighted I was when I opened the bundle, expecting to see those cheap-looking paste-boardy things, and you had gone and done them just as I wanted you to do them, and you said you would, and then said you wouldn't, and they are beautiful. They are better even than ‘Sir Thomas.’ The paper is finer. But now see—I never thought till yesterday that they must cost more than the other way, and I have been distressed all along, and this makes me more so. But listen: I shall either live, or die, or marry. If I live I shall get money, if not by writing, then by teaching, or something, so that I shall pay you sometime. If I die I shall leave money enough of my own to pay you, and you keep this letter to show to my heirs to let them know I desire you to be paid. If I marry, Smith of course will be delighted to pay all my debts, and I shall make that the condition of my becoming Smithess; so that you shall not lose money on my book, even if you don't make any, which I hope you will—millions of dollars; but I am sure you must see for yourself that it is better to have a book look substantial and high-bred, and suit you, even if it does cost a little more.

“Just here comes your letter and check, which was delayed in Boston because you did not put a stamp on.

“One of my friends has been questioning me about the business part of my book—copyrights and contract, and all that trash of which I know and care nothing.”

[Foolish as this all seems to me now, I can only say that it expressed exactly my state of mind. It was not that I had any lofty disregard of money, but simply that I was so intent on writing, that I had room for nothing else. I had plenty of money, or if I had not, I did not know it, which amounts to the same thing, and it made me impatient to be bothered with these outside, and what seemed to me entirely insignificant matters.]

“But I want to know if by publishing articles in the ‘A. M.’ they pass out of my hands. I mean, if I wanted to collect them and have Tilton, say, publish them, couldn't I? I will any way; because you see, though I am amiable, you know what your temper is, and suppose we flare up and have a quarrel, what then? I tell you I don't discard lines of retreat. Now you know I would rather have you publish than anybody else—supposing I had anything to be published; but I want to do it because I want to do it, and not because I have to do it—don't you understand?

“Do you know that it scares me to see my book out in the open day? Seems to me it is a romping kind of a book, and there is a regiment of I's on every page, and ‘lots’ of ‘tricksys’ and ‘exasperatings’ and ‘for my parts.’ You cannot tell how a book will look till it is born, can you? I shall make the next one better. Shall you read it now it is out? I wish I knew whether it disappoints you. It does me. It is crude and botchy—it is so awfully unlike ‘Sir Thomas Browne;’ and if it isn't good, it is frightfully pretentious. A book ought not to come out in that style, unless it has some merit. To think of——reading it, and——and——and——I should like to go into a hole and burrow—and——

“O dear! I don't suppose they will read it, but I wanted to have such a book as they will read. Any way, you have done your part, and I want you to know that I am aware of it and not ungrateful.”

“Hurrah! Good news! I have heard of a man in S——, who said he was going to buy my book! There is one copy as good as sold.

“The man who told me about the purchaser in S——, tells me also that the dress of my book is very much admired, and says I ought to be very grateful to B. & H. for doing me up in such style, just as if I was not! But what can I do about it? There is a white cloud at the toe of my boot. As soon as it resolves itself into a well-defined hole, I am coming to Athens to get a new pair. I have nothing in the world to say to you, and I shall not come to see you. Still, if you should say, ‘Hadn't you better?’ perhaps I might be induced to rasp my knuckles against No. 7—.”

MR. HUNT TO M. N., SEPTEMBER 23.

“I am glad you like the costume into which we put your first-born. It is a handsome baby and will go alone uncommonly early.”

So it seems that notwithstanding all the importunities and posturings of the kneeling scene, Mr. Hunt was unmoved—for it was after the curtain had fallen on this act that he quietly writes, “I propose same style as ‘City Curate.’ Do you like it?” All its pathos had not been sufficient to keep the act itself in mind. When I first suggested “Sir Thomas Browne,” he agreed at once, but afterwards apparently forgot it and mentioned “City Curate,” as if nothing had before been said on the subject. Finding then that I wanted the “Sir Thomas,” he does not so much as reply, but simply binds the book according to my wishes. There is no sign of any objection to it on his part from the beginning to the end, so that the candid inquirer is at a loss to know why I should have knelt, except from native humility of spirit and taste for the suppliant posture—which nobody can deny.

As the ministers remark, “we shall resume this subject in the afternoon's discourse.” I only say here what, à la Ollendorf's grammar, I had a mind but no time to say to the referees.

After we had all slept upon it and returned to our moutons next morning, Messrs. Hunt, Parry, & Co. brought in proof to show that I did know that fifteen hundred books were exempted in the first edition. This was an account in one of their books in which the exemption appeared. But in their copy of the accounts sent to me, drawn up by their clerk for the referees, the latter remarked that no such item appeared. Messrs. Parry and Markman thought it might be the clerk's mistake in copying. The referees asked me if I had my accounts with me. As they had been my literature for sixteen months, I was inclined to think I had. The original papers were produced and no mention was found in them of any exempted copies. Mr. Parry said that as the item was down in the books it must have been put there for the purpose of sending to me. Mr. Markman thought this particular account might have been lost in the mail. But the accounts which I held covered all the time of my transactions with Messrs. B. & H. Mr. Parry thought the entry in their books would at least show their good intentions.

The second edition of “City Lights” numbered five hundred copies. No edition was so large as the first, except the eleventh, which numbered two thousand copies. Another fact came out of which I had not before been aware, that three hundred copies had been exempted on every book. These I suppose had been distributed as advertisements.

Regarding the change in payments from percentage to a fixed sum, the firm claimed that it was made with my full knowledge, understanding, and consent, as would be proved by Mr. Hunt's testimony. Whereupon Mr. Parry gave place to Mr. Hunt, who deposed and said—or rather, to his grief, did not depose, but was obliged to content himself with saying,—that on a certain time he held a long conversation with me on the subject of the change, in which he fully explained to me its nature and necessity. He remembered that at first I was disposed to be trifling, but he begged that I would be serious, and assured me that this was a serious matter. He remembered using the expression, that their house was shaking in the wind. He explained to me over and over again, to make sure that I understood the state of affairs and the reasons which necessitated the change, and repeatedly asked me, “Do you understand this clearly?” and I said that I did, and “Do you assent to it?” and I answered “Yes.” Then, fastening upon me a look—apparently designed to be penetrating and powerful enough to reach the lowest depths of duplicity and to wring late confession even from a perjured soul,—he exclaimed, “I think, M. N., you must remember this.”

Of course I was overwhelmed with confusion, but having persisted in the falsehood so long it was hardly worth while to go down on my knees to the gentleman a second time, so I received his gaze in silence. In fact, Mars Hill House witnessed then what the hymn calls “the young dawn of heaven below,” inasmuch as there was silence in the room for the space of not quite half an hour. It was broken by the referees, who said that it was perhaps proper to ask me here if I remembered any such conversation. I said that I did not recollect it. They asked Mr. Hunt if he had any correspondence which referred to it. He said no, only the letter of mine which I had myself produced, in which I admitted it. But he remembered it with exact clearness. He could recall just the sofa on which he sat. He was so confident that he wished he could take his oath on it. They asked him whether I happened to be in Athens or whether he sent for me. He was not sure, but thought he sent for me. They asked him if in this conversation it was understood that “City Lights” was to be included in the second contract. He said “distinctly.” I asked if he could define the time when the conversation occurred. He could not, but it was some time before the second contract was made, and was the basis of that contract. I asked if he could tell whether it was in the old shop or the new. He said it was in the new. He did not add, what would have been a most effective peroration to his speech,—

This little matter being thus comfortably disposed of, Mr. Parry again took up the thread of his discourse.

With regard to the change in payment to authors from a percentage to a fixed sum, he said that such a change was desirable because everything was changing and uncertain. He reiterated his statement as to the variations that had been made in the retail price of my books; said that authors generally did accede to the change; admitted that Mrs.—— had had some difficulty, that her mind seemed to have been jaundiced towards them, that her sister, Miss——, had examined their books, and that Mrs.—— had now become satisfied that all was right; that I, before the reference, neither admitted nor denied that I had acceded to their proposal, but only affirmed that I did not recollect about it. He denied that there was any prescriptive custom of paying the author ten per cent., though as before, he objected to bringing in the modes of other publishers, as Hunt, Parry, & Co. transacted business on their own account without consulting others. Which is all very true, doubtless, yet the prejudiced observer, seeing how much is said about the great liberality of this firm, can but marvel that they should have been willing to miss so brilliant an opportunity of contrasting their own liberality with the niggardliness of those sordid book-men who publish, not for glory and high emprise, but simply to make money. Mr. Parry said this also was a reason why the questions propounded to them by Mr. Dane antecedent to the reference seemed irrelevant. They were asked to state their income and that from the “Adriatic.” But they might make a great deal of money in outside ways,—by speculating in butter, for instance,—of which it was not pertinent that they should give any account. He was asked why, if there was no prescribed custom to pay ten per cent., they themselves fixed on ten per cent. as the rate of payment for “City Lights.” He said that they were disposed to be liberal; that there were no fluctuations then; that such a prescriptive custom may then have existed, he would not say that ten per cent. was not common, though he did not himself know what was the custom among other publishers. He was asked why “City Lights” was not by name included in the second contract if its provisions were intended to apply to “City Lights,” and why the other works were not also included in a contract. He replied, that it was because a verbal understanding had been reached; that if they had supposed or intended any wrong, they would certainly have so included it; that the absence of contracts was owing to a basis of mutual understanding and verbal agreements. He was asked if they had any letters bearing on such verbal agreements, and he said they had not.

He affirmed that the publishers made but insignificant profits on the books compared with mine; that up to September, 1764, when the second contract was made, when “City Lights” had been two years out and “Alba Dies” and “Rocks of Offense” had been published, and “Old Miasmas” was about to be published, their net cash profit on the books for these two years had been three hundred dollars. Here they went into the details of the business with a minuteness altogether beyond my power to comprehend or report. The referees and themselves carried on a long discussion about the condition of business in general, and their business in particular, in 1762, 1764, and subsequently. The firm foresaw that they should have to advance the retail price of their books. Everything connected with their business advanced. The price and quality of paper, the size of books, taxes, interest, stereotype plates, pro rata increase, press-work, expenses of business, comparative costs of comparative thinness, if there is any such thing, number of pounds of paper in thin books and thick books, discounts to the trade, were discussed with apparent intelligence. I can give only a few of the mysterious tongues of flames that shot above the level of the luminous, and still more mysterious corona.

[It will be seen that this part of my paper is like Milton's “fatal and perfidious bark,” in “being built in the eclipse” as well as “rigged with curses dark.”]

The stereotype plates of the nine volumes were estimated at three thousand nine hundred and fifty-three dollars, ninety-seven cents.

Paper, printing, and binding of about 72,000 volumes $38,422.08

Advertising in outside mediums 1,500.00

Advertising in their own periodicals 500.00

[The latter embraced only cost of paper and printing.]

Government manufacturing tax, five per cent. on sales, October 1764 to July 1766 $1,814.04

Seven per cent. interest on stereotype plates 991.46

Expenses of doing business, ten per cent. on sales 7,061.14

The latter included rent, insurance, clerk hire, packing, store expenses, business risks and losses, taxes on business-property, except income-tax, etc. Reckoning up the sums expended they proved beyond doubt, if there be truth in figures, that their profits were not quite seven-tenths as large as those of the opulent and insatiable author, who, in spite of all this inequality was clamoring for more. But they admitted that, though their expenses had been out of all proportion to their profits since the rise in prices, their profits had lately “been some larger than before.”

With all due respect to Messrs. Hunt, Parry, & Co., I must still avow that these estimates are entirely valueless. What would have been of value was their cost-book, which would have showed what they actually did pay. This I asked for but it was not produced. They simply made an estimate. They brought forward not a single voucher. They reckon the item of advertising at two thousand dollars, but they produced not a paper to show that they had paid anything. This advertising extended over several years and embraced advertisements of nine books. Whether they counted in the three hundred volumes reserved on each book; whether they counted in the advertisements of every book advertised and issued simultaneously with mine, on what basis they did calculate, or what sums they did pay, I have no means of knowing, except their assertion.

In the same way they make their estimate of the cost of paper and press-work; but that it is anything more than an estimate, that it represents the actual sum which they paid to printers and binders, there is no proof. From the fact that I asked for their cost-book, and that it was not produced, I infer that it does not represent that sum, notwithstanding the laudable accuracy involved in the eight cents.

Again, having set down a certain sum for the cost of the stereotype plates, for the interest of that money, for the paper and press-work, for the advertising and taxes, they bring in a grand finale for the expenses of doing business. That is, having charged once for the items specifically, they lump them together and charge for them all over again abstractly. For what is the advertising and the taxes but a part of the expenses of doing business? Why could not everything except the raw material of the book be classed under the head of doing business? What is there to a book but the book itself and the publication of it? And why again should interest be charged on the sum paid for stereotype plates any more than for that paid to the printer and binder?

[Since the reference I have showed their statement to several publishers, and am assured that any person whose correct accounts should stand thus is unfit for the business, and that the profit on those books is from four to five times as much as Messrs. Hunt, Parry, & Co. represent it.]

But, even supposing all these figures to be correct, it will at once be seen that the publishers set off their own net profits against the author's gross receipts. Having charged for every item of their own expense in producing the book, and for some of them twice over, they make no allowance whatever for the author's having been at any expense in his part of the production. What the publisher gets after every expense is paid is set over against what the author gets to pay every expense with. But the publisher's profits, according to their showing, are only about one tenth of his gross receipts. What then is the author's share of what may truly be termed profits? Or is the author's share in the production of the book to be considered as of no pecuniary value?

The remainder of the case, as presented by Messrs. Hunt, Parry, & Co., will appear, to the best of my ability, in the written reply presented to the referees and here subjoined. It must not be forgotten that one is always liable to misrepresent an opponent's case. I labor under the additional disadvantage of possessing a natural aptitude for “conspicuous inexactness” perfected by long practice. This innate depravity is, however, held in check at the present crisis, by the consciousness that I am reporting what took place in the presence of five persons, of whom three were on the other side, and two on neither side, so that any lapse from truth would be speedily detected. With such vigor does Providence barricade our weaker virtues!

INTRODUCTION.

(This “Introduction” will doubtless induce in the reader a despair akin to that felt by a sleepy worshipper on a warm Sunday afternoon, when, nearing, as he supposes, the close of the discourse, the preacher turns over a new leaf, and announces, “Secondly!”)

"INTRODUCTION.

“Before proceeding to the subject-matter of the controversy, will the referees permit me to apologize for appearing before them to present the case myself. Nothing was further from my intention. Until the evening before the reference I did not mean to be present at all, and I then consented to be in the room only at Mr. Dane's urgent solicitation. I wished a full, clear, and exhaustive discussion. I knew that I was not able to enter into it myself. I have steadfastly refused to attempt it even in private with Messrs. Hunt and Parry, because I knew I was so ignorant of the details of business, that such a discussion would be fruitless. How much less then should I have attempted it before two gentlemen of the character and ability of the referees, appealed to for a formal and final decision?

“The paper already presented to the referees was prepared originally for my own convenience, and was subsequently put into Mr. Dane's hands for his exact understanding of the matter. It was not designed for the referees. It contained much irrelevant matter, and my only excuse for offering it, is the embarrassment and perplexity in which I suddenly found myself involved, and from which this seemed the only way of escape.

“The same circumstances must be my apology to Mr. Hunt for certain letters which appeared in that statement. They were placed there only for the sake of a few lines which were in them. These extracts were all that were designed to be read. But in the confusion of the moment I was entirely unable to make any separation or distinction. I mention this, not because the letters contained anything discreditable to Mr. Hunt, for they did not; but because I would wish to avoid even the appearance of unnecessarily giving private letters to the semi-publicity of arbitration.[12]

“For the paper which I now present, I must also beg the indulgence of the referees. I have done the best I could do under the circumstances, but I know that it must seem to them redundant, deficient, unsystematic, and perhaps inadequate. I can only assure them that had I thought it possible I should be forced to conduct the case myself, I should never have appealed to arbitration.

“I beg to thank the referees most sincerely for their unvarying kindness and forbearance.

“SUBJECT-MATTER OF THE CONTROVERSY.

“I claim what is justly due for copyright on eight works, namely:—

“‘City Lights,’

“‘Alba Dies,’

“‘Rocks of Offense,’

“‘Old Miasmas,’

“‘Pencillings,’

“‘Holidays,’

“‘Cotton-Picking,’

“‘Winter Work,’

Published by Messrs. Brummell & Hunt, since Hunt, Parry, & Co.

“Were there no contracts, the author's share should, I suppose, be determined by the usage of publishers and authors, as to similar works with similar sales.

“For four of these books there is no contract.

“On the first book, ‘City Lights,’ there is a written contract at ten per cent. on the retail price after the first edition is sold. This price was fixed voluntarily by the publishers without suggestion from or consultation with me, and must be considered as expressing their idea of what was fair and usual under ordinary circumstances, even with a new author. This contract has never been rescinded. Messrs. Hunt, Parry, & Co. claim that it has been rescinded. No one can be called upon to prove a negative. To prove that the contract exists, I produce the contract. To prove that the rescission exists, I demand that they produce the rescission. This they have utterly failed to do. Mr. Hunt simply asserts a verbal agreement, which I deny. A verbal agreement between two parties, which one party stoutly maintains, and the other flatly denies, is, I submit, an agreement more suited to the latitude and longitude of Dublin than of Athens. A verbal agreement, which on examination proves to be an utter and absolute disagreement, cannot cancel a written contract.

“They not only attempt to rescind the first contract, but to substitute another for it by including ‘City Lights’ in the second contract. But ‘City Lights’ is not named in the second contract. They do not even pretend that they intended to name it there. They simply assert a conversation in which both parties agreed that, the first contract still existing, they would act as if it did not exist; and that ‘City Lights’ not being inserted in the second contract, both parties should act as if it were so inserted. I beg to inquire if there is anything in the Union as it was, or the Constitution as it is, that could make such a procedure reasonable? Is it credible that a shrewd business firm should rely on a verbal agreement to cancel a written one and leave the latter uncancelled in the possession of the other party?

“‘Dies Alba,’ ‘Rocks of Offense,’ and ‘Old Miasmas,’ were published at different periods subsequent to the publication of ‘City Lights.’ They are all embraced in one contract, which bears date September 24, 1764. This contract is not at ten per cent. on the retail price, but at fifteen cents a volume on all volumes sold.

“This contract I claim to be invalid, because it was obtained from me under false representations, and because it is not equitable.

“Mr. Hunt asserts that before entering into this contract, and as a basis of this contract, he had a long conversation with me in which he fully showed me the reason of the proposed change from ten per cent. to fifteen cents on a volume. His recollection of this conversation is so vivid that he even recalls the sofa on which he sat. He thinks he sent for me, but is not quite sure. He remembers that I was disposed at first to be trifling, but he begged me to be serious, and assured me that this was a serious matter. He remembers using the expression, ‘that their house was shaking in the wind.’ He says, he explained to me over and over again the state of affairs and the reasons which necessitated the change; and repeatedly asked me, ‘Do you understand this clearly?’ and I answered that I did, and ‘Do you agree to it?’ and I said yes. He is so positive in his assurance that he expresses the wish that he could take his oath on it; the referees ask him if, in that conversation, ‘City Lights’ was included among the other books, and he replies, ‘distinctly.’ Then, in face of my repeated written and verbal assertions to him that I had no recollection of any such conversation, he fixes his eyes upon me and says, with emphasis, ‘I think, M. N., you must remember this.’

“I have already stated to the referees that I had no recollection of any such conversation or of any verbal agreement. I was willing to attribute the assertion to a mistaken impression on the part of Mr. Hunt. Now, after his positive, persistent, and circumstantial assertion, I go further. I deny his assertion in part and in whole, in every point and particular. I deny it not simply as a mistaken impression, but I deny it as a question of veracity between Mr. Hunt and myself.

“As I have said before, I cannot be called upon to prove a negative. The burden of proof lies on Mr. Hunt who asserts the positive. He admits that he has no correspondence to show it, but affirms that I admit it myself in one of my early letters by saying, ‘I dare say’ I did have such a conversation. The letter to which he refers is my second letter of inquiry, written before my faith in him had been shaken, and before the question of such a conversation had assumed any prominence or arrested my attention. I had asked him, as my letters show, why he wanted me to take less than ten per cent. He had replied, that we had talked it over and I agreed to less. I replied that I knew I agreed to it, for here were the contracts, but why did he wish me to make such contracts? My exact words were, ‘I don't remember ever talking the things over with you, but I dare say I did—or rather you talked and I nodded,—as usual. And of course I agreed, for here are the contracts that say so.... Don't you see the trouble lies back of the contracts. Why did you wish me to be having seven or eight per cent. when other people are getting ten?’ Here it is seen that in the very beginning, almost before any suspicion was aroused, and before my attention was at all fixed upon the importance of this conversation, I, first, carelessly but distinctly assert that I remember no such talk; second, I found my recognition of my assent not upon any remembered talk but upon the written contract; and third, I reiterate my questions concerning what lay back of the contract in entire unconsciousness that the talk had anything to do with it.

“So then, the only testimony which Mr. Hunt can produce of a verbal agreement which vitiates one contract and forms the basis of another, is a letter of mine in which I distinctly affirm that I don't remember anything about it! Mr. Hunt is welcome to all the sunshine he can find in that cucumber.

“Again, Mr. Hunt cannot fix the time when this explanatory conversation occurred and this verbal agreement was made; but it was the basis of a contract which was executed on the 24th September. It would naturally, therefore, be somewhere within speaking distance of that time. Now, in my statement of the case, made out on the 22nd October, 1768, and put into the hands of my friend Mr. Dane a few days after, and read before the referees, I said, ‘I think it must have been at the time this contract was made out—but I cannot be sure as to the time,—that Mr. Hunt told me that they were going to pay me a fixed sum, fifteen cents on a volume, instead of a percentage;’ adopting this course with their authors, ‘on account of fluctuations, general uncertainties, and so forth.’ In the following January my vague recollections were confirmed by finding unexpectedly, and without seeking it or knowing that I had it, a letter from Mr. Hunt dated September 23, 1764, from which I make the following extract: ‘The contract has been delayed for a sufficient cause.’ [He then gives the cause of the delay, namely, Mr. Brummell's absence]. ‘The percentage will read fifteen cents per copy, as the business times are fluctuating the prices of manufacture so there is no telling to-morrow, or for a new edition, what may be the expenses of publication. So we reckon your percentage in every and any event as fixed at fifteen cents per volume on all your books. If it should cost $1.50 to make the volumes you are sure of your author profit of fifteen cents. The price at retail may be $1.50, $2.00, or $3.00, as the high or low rates of paper, binding, etc., may be, but you are all right. This arrangement we make now with all our authors....

“‘As I write, the contracts are reported ready, so I enclose them. Sign both, and send back the one marked with red X. You keep one and we the other.’

“I submit, that this extract, bearing date the day before the contract, has every sign of being fresh information. All the circumstances combine with my own distinct recollection, apart from them, to show that a new contract was made at my suggestion, not with any view whatever of changing the terms, but because I thought if a contract was necessary with one book, it was with another. I did not know that there had been or was to be any change from percentage to a fixed sum, until this letter told me. The retail price of the books had gone up to $1.50, so that ten per cent. and fifteen cents were the same. In this letter no allusion whatever is made to any previous conversation on the subject of the change from percentage to a fixed sum. Is it credible, I ask, that Mr. Hunt should have sent for me; should have assured me that this was a very serious matter; should have explained it all to me over and over again; should have repeatedly asked me if I understood it; should remember the conversation five years after, so vividly that the intensity of his convictions cannot find adequate expression in simple declaration but craves the relief of an oath; is it credible, that in his letter of the period he should have made no allusion to this conversation, but should have mentioned the arrangement as then communicated to me for the first time,—as it actually was?

“But further than this, my diary for 1764, carefully kept, with not a day missing, shows that during the whole summer and autumn preceding the 23d September, 1764, I was not once in Athens!”

[And yet again,—I set on foot an inquiry at the time but did not get an answer in season to use it before the reference,—Mr. Hunt distinctly remembered that he sat on a certain sofa in the new shop during the conversation which was the basis of the contract of September, 1764. But the firm did not move into the new shop till May, 1765!

Now if Mr. Hunt should gratify himself with the wished-for oath, I am sure that the accusing angel who flies up to Heaven's chancery with it, will blush as he gives it in, and the recording angel as he writes it down, will drop a tear upon the word and blot it out forever.]

“But it may be urged, giving up the conversation and relying only on the letter, that in any event I accepted and assented to the new contract with a full understanding of its meaning and effect, and am hence bound by it. This I deny. The law always scrutinizes transactions between parties in confidential relations, as father and son, guardian and ward, attorney and client, husband and wife, and demands the utmost frankness and fullest disclosure of circumstances, allows no concealments, and sets aside all contracts where any advantage is gained by reason of the confidence reposed. It recognizes the influence of superior position, and the right to trust in the party occupying it, and demands the strictest honor on his part. I think my position with my publishers comes within the scope of this principle. In respect of the matters involved in this contract, were we or could we be equal? They were practiced business men living in the city, with full knowledge of all the details of their affairs. It was their business to manage the external material parts of books. I was living in the country, with no knowledge of these affairs, and as I supposed, no need and no means of acquiring it. It was my part to attend to the interior and intangible souls of books. I could not look into their business without neglecting my own; as indeed I have been forced to do for sixteen months past, and as I should do with equal pertinacity for sixteen years, were it necessary. I never sent for my accounts, except when I wanted money and wished not to overdraw. When they came, I scarcely did more than glance at the footing to ascertain what was due me. Nor do I now see of what use it would have been to examine them ever so minutely. I was proceeding entirely on a basis of confidence, which I think I had a clear right to assume, and which was complete and unimpaired until the date mentioned in my first paper, when I awoke to the fact that I was not receiving what I seemed to be entitled to, and what, on the closest scrutiny, I believe to be my legal and equitable dues.

“Such being the relation of the parties, let us examine for a moment—that is a pulpit fiction, I mean for a good many moments—the inducements held out to me by my publishers, as they are found in this letter. I maintain that the proposed change from percentage to a fixed sum is so mentioned as directly—I do not say intentionally—to mislead me. It is held up as an arrangement peculiarly to my advantage, as guaranteeing me in any event against a loss to which I might otherwise be exposed, and as securing me my profits by some stronger safeguard than I had before possessed. But whereas I was blind I now see that it guarantees me against no loss, and the only safeguard it presents, is a safeguard against any benefit which might accrue to me from the rise in prices. Mr. Hunt says, “if it should cost $1.50 to make the volumes, you are sure of your author profits of fifteen cents,”—as if I should not have been just as sure of them had I received percentage! “The price at retail may be $1.50, $2.00, or $3.00, as the high or low rates of paper, binding, etc., may be, but you are all right,”—whereas I was all wrong, for if I had kept to a percentage, and the retail price had become $3.00, I should have had thirty cents instead of fifteen.

“It was almost immediately after this contract that the retail price of all my books went up to $2.00, and has remained so ever since. This was a fact which my publishers had the means to foresee, but which I could not and did not anticipate or even conjecture. The absolute identity of ten per cent. and a fixed sum at the time of the new contract, together with their representations of its superior advantage to me, and my confidence in them, all combined to deceive me. I should have adopted the same reasoning and drawn the same inference if a year earlier I had been asked to change the ten per cent. to twelve and a half cents, which at that time amounted to precisely the same thing.

“Had I been distinctly told that my books were largely to advance in price, but that all the profit of the advance was to accrue to the publishers and none of it to me, should I have consented to such an arrangement? The referees and my publishers, in discussing these matters, plunged into an abyss of figures into which I cannot attempt to follow them. I do not even understand the jargon—I trust they will pardon the term—in which they appeared to be communicating ideas. I had provided myself with a friend who was, I believed, fully competent to dive as deep as the best of them. But I was not allowed to retain him, and I could only sit in despair on the brink of the gulf and stare at the spectacle. From the few intelligible sounds that did reach me I infer that the sacrifices of publishers in behalf of authors have never been fully appreciated. I felt that in claiming ten per cent. I was guilty of an extortion second only to that of David Copperfield in suggesting to Mr. Dolloby eighteen pence as the price of ‘this here little weskit.’ ‘I should rob my family,’ says Mr. Dolloby, ‘if I was to offer ninepence for it.’ It is gratifying to recollect that the last winter was a mild one, so that the cases of extreme suffering must have been rare. If it were not for an occasional glimpse at our impertinent income-returns one would be inconsolable. As it is, would the referees count it as bringing in new facts if I should send one or two postage-stamps to the retired clergyman whose sands of life have nearly run out, and beg a receipt for returning an income of fifty thousand dollars on a bi-annual cash profit of three hundred dollars?

“But though I cannot bring up a fact from the bottom of the sea, I can see a fact when it stares me in the face on land. If there was any reason except uncovenanted mercies for advancing my copyright from twelve and a half cents to fifteen, when the books went from $1.25 to $1.50, it must have applied with equal force to advancing my copyright from fifteen to twenty cents when the books advanced from $1.50 to $2.00. I deny that the increased cost of doing business should be reckoned solely on the side of the publisher as the justification of his receipts and profits, while the author should be held down to the same fixed sum. The same causes that increased the cost of doing business to Messrs. Brummell & Hunt as publishers, increased in quite as large a ratio the cost of my doing business as an author. Every conceivable form of expenditure to which I was subjected was all the time increasing, and I was as much in need of a pro rata increase of receipts from my books as the publishers could be. But Messrs. Brummell & Hunt take the opposite ground and maintain that no matter what the added expenditure of the author may necessarily become, only a fixed sum shall be allowed to meet it, while the vast increase of receipts and of profits shall be absorbed by the publisher alone. If this be justice, equity, or law, I think we would better stop hammering on the jubilee house, and begin back again at the Ten Commandments.[13]

“But though I was not able to follow my publishers through the technics and tactics of their business, there were two ways in which I might have formed and presented some opinion of the justice of their course. Had I been allowed, I would have called in other publishers and have asked them what would be a fair price for books with the character, dress, and sales of mine. I do not see that there could be any unfairness in this. They surely would not be likely to decide unjustly against their own craft, and they surely would be able to give an intelligent answer.