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Owning Ideas

Owning Ideas is a comprehensive account of the emergence of the


concept of intellectual property in the United States during the long
nineteenth century. In the modern information era, intellectual property
has become a central economic and cultural phenomenon and an
important lever for allocating wealth and power. This book uncovers
the intellectual origins of this modern concept of private property in
ideas through a close study of its emergence within the two most
important areas of this field: patent and copyright. By placing the
development of legal concepts within their social context, this study
reconstructs the radical transformation of the idea. Our modern notion
of owning ideas, it argues, came into being when the ideals of
eighteenth-century possessive individualism at the heart of early patent
and copyright were subjected to the forces and ideology of late
nineteenth-century corporate liberalism.

oren bracha is a professor of law at the University of Texas School of


Law. He is one of the leading scholars of the history of Anglo-American
intellectual property. He has published extensively in the fields of
intellectual property law and legal history.
Cambridge Historical Studies in American Law and Society

Recognizing legal history’s growing importance and influence, the goal of this
series is to chart legal history’s continuing development by publishing innovative
scholarship across the discipline’s broadening range of perspectives and subjects.
It encourages empirically creative works that take legal history into unexplored
subject areas, or that fundamentally revise our thinking about familiar topics;
it also encourages methodologically innovative works that bring new disciplinary
perspectives and techniques to the historical analysis of legal subjects.

Series Editor
Christopher Tomlins, University of California, Berkeley

Previously Published in the Series:


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Islands, 1898–1935
Anne Twitty, Before Dred Scott: Slavery and Legal Culture in the American
Confluence, 1787–1857
Robert Deal, The Law of the Whale Hunt: Dispute Resolution, Property Law, and
American Whalers, 1780–1880
Sandra F. Vanburkleo, Gender Remade: Citizenship, Suffrage, and Public Power in the
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Reuel Schiller, Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism
Ely Aaronson, From Slave Abuse to Hate Crime: The Criminalization of Racial
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Stuart Chinn, Recalibrating Reform: The Limits of Political Change
Ajay K. Mehrotra, Making the Modern American Fiscal State
Yvonne Pitts, Family, Law, and Inheritance in America: A Social and Legal History of
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David M. Rabban, Law’s History
Kunal M. Parker, Common Law, History, and Democracy in America, 1790–1900
Steven Wilf, Law’s Imagined Republic
James D. Schmidt, Industrial Violence and the Legal Origins of Child Labor
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Davison Douglas, Jim Crow Moves North
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Michael Willrich, City of Courts, Socializing Justice in Progressive Era Chicago
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Revolution, 1865–1920
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Thirteenth Amendment
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Experience in the Antebellum South
Owning Ideas
The Intellectual Origins of American Intellectual
Property, 1790–1909

OREN BRACHA
University of Texas, Austin
One Liberty Plaza, New York ny 10006, USA

Cambridge University Press is part of the University of Cambridge


It furthers the University’s mission by disseminating knowledge in the pursuit of education,
learning and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9780521877664
© Oren Bracha 2016
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2016
Printed in the United States of America by Sheridan Books, Inc.
A catalog record for this publication is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Bracha, Oren, author.
Title: Owning ideas : the intellectual origins of American intellectual property,
1790-1909 / Oren Bracha.
Description: New York : Cambridge University Press, 2016. | Series: Cambridge historical
studies in american law and society | Includes bibliographical references and index.
Identifiers: lccn 2016039094 | isbn 9780521877664 (hardback)
Subjects: lcsh: Intellectual property–United States–History. | Copyright–United
States–History.
Classification: lcc kf2979 .b66 2016 | ddc 346.7304/809034–dc23 LC record
available at https://lccn.loc.gov/2016039094

isbn 978-0-521–87766-4 Hardback


Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Contents

Acknowledgments page vii

Introduction 1
1 The Origins of the American Intellectual Property Regime 12
2 The Rise and Fall of Authorship-Based Copyright 54
3 Objects of Property: Owning Intellectual Works 124
4 Inventors’ Rights 188
5 Owning Inventions 237
Conclusion 307

Index 317

v
Acknowledgments

When a book has been in the making for as long as this one, its author
accumulates many debts. It is a pleasure to acknowledge some of them
here. My greatest debt, intellectual and otherwise, is to Morton Horwitz,
Terry Fisher, and Duncan Kennedy. Each of them helped shape my
intellectual agenda and persona in ways that pervade this project and go
well beyond it. The marks left by their influence, guidance, and example
are evident in this book. Ron Harris has been another major source of
formative influence and support. I am grateful to him for setting me on the
path that led to this work and for his early encouragement and guidance.
I was able to engage in the demanding and lengthy research underlying
this work thanks to the unwavering and generous support of the Univer-
sity of Texas School of Law. Even more important than the institution
were the people making it. I have benefited greatly from interaction and
conversations with many of my colleagues. The most sustained and
material contributions to this project were made by Willy Forbath, David
Rabban, and John Golden, who devoted their effort, time, knowledge,
and wisdom to reading this work and suggesting ways of improving it.
I have also benefited from the work and insight of many other scholars,
too numerous to mention. Although they may not be aware of it, Lionel
Bently, Ronan Deazley, Catherine Fisk, Mark Rose, and Talha Syed were
particularly influential in shaping my thought about the themes discussed
in this book.
I am grateful to the helpful and knowledgeable staff of the National
Archives and to the devoted librarians of the University of Texas School
of Law Library, who valiantly assisted my efforts to locate many obscure
sources. Claire Gherini and Megan Wren supplied devoted and diligent

vii
viii Acknowledgments

research assistance. Chris Tomlins deserves special thanks for his


guidance and encouragement as editor and for not losing faith.
The largest share of my gratitude is given to Tammy Sheffer-Bracha.
This project has been our constant companion for many years, from well
before our daughter was born. Without her patience, sacrifice, and sup-
port it would have not seen the light of day. This work is dedicated to her.
Introduction

Intellectual property is all around us. We have grown so accustomed to


the idea that it is easy to forget how strange it is. But it is strange. Glossy
brochures of the World Intellectual Property Organization may tell us
that intellectual property rights are like any other property right. Learned
law professors may patiently explain that there is no reason why property
rights should not apply to intangible resources. No matter. When one
thinks about it, the concept of owning an intangible product of the mind
is strange and exotic. What does it mean to own an idea? How did we
come to think and speak this way about this increasingly important part
of our economic, cultural, and social life? This is what this book is about.
One starting point for answering these questions is the notion of
expansion. In 1918 Justice Louis Brandeis wrote: “The general rule
of law is, that the noblest of human productions – knowledge, truths
ascertained, conceptions, and ideas – become, after voluntary communi-
cation to others, free as the air to common use.”1 When Brandeis wrote
those words, intellectual property rights had already grown in coverage
and strength beyond what anyone could have imagined a century earlier.
Today intellectual property rights have expanded further, most likely well
beyond what Brandeis could have imagined. Exclusive legal rights have
been asserted (with a varying degree of success) in an astonishing range of
intangibles, including yoga sequences, methods of playing golf, a system
for hedging investment risk, genetic sequences, and the appearance of a
street performer dressed as a mostly naked cowboy, to name just a few

1
International News Service v. Associated Press, 248 U.S. 215, 250 (1918).

1
2 Introduction

recent examples. One is tempted to wonder whether we have crossed the


line where Brandeis’s rule flips and the freedom to use ideas becomes
the exception. James Boyle has dubbed this process the second enclosure
movement, the intellectual resources equivalent of the eighteenth-century
English process in which open land used in common was converted into
tightly controlled private property.2
If we are in the midst of a second enclosure movement – whether it
started in recent decades as some seem to think or has been unfolding for
centuries – what could explain it? The immediate suspects are technology
and economics. Much of the wealth in our society is in the form of
informational resources of the kind covered by intellectual property
rights, rather than land or other tangibles. This raises the stakes of private
control of these intangible sources of wealth through intellectual property
rights. Historically, technological development fueled this process.
New technology gave rise to new valuable intellectual resources –
anything from an innovative industrial process to motion pictures – and
helped create markets for their exploitation. For better or worse, this
resulted in increased private demand and public interest in the legal
mechanisms for controlling and allocating the value of these resources.
This narrative explains much. But it leaves out another powerful factor,
namely ideas. The expansion of intellectual property rights is the result
not only of technological development and economic demand but also of
a specific set of ideas. Over the last three centuries our culture has
developed a unique ideology that gives meaning to the notion of owning
ideas. While deeply influenced by technology and economics, this ideol-
ogy was not merely their intellectual reflection. Ideas about ownership of
intangibles have exerted their own semi-autonomous force in interaction
with those other factors. They form the intellectual origins of the second
enclosure movement.
Some of the history of the modern ideology of owning intangibles in
England and the Continent has been thoroughly explored, especially in
the context of copyright. In a nutshell, the practices and regulations out
of which intellectual property grew existed at least since the fifteenth
century. They were not seen, however, as either “intellectual” or
“property.” While certain entitlements existed in regard to technology-
related economic activities and later book publishing, they were not
understood as ownership of an intangible object. New ideas of ownership

2
James Boyle, “The Second Enclosure Movement and the Construction of the Public
Domain,” 66 Law Contemp. Probs. 33 (2003).
Introduction 3

of property rights in the intellectual product of one’s mind began to


appear around the early eighteenth century. By the end of the century,
the ideological foundations of both patents and copyright had been
transformed. Both fields came to be dominated by a version of possessive
individualism applied to intellectual creation. At the heart of this new
construct stood the individual – either author or inventor – who through
his mental labor creates new ideas. This individual was now seen as the
owner of his intellectual creation.
When the American copyright and patent regimes were created in the
last two decades of the century, this new framework was already well
established. It is tempting, therefore, to think about the modern
authorship-ownership framework as embedded in the DNA of the Ameri-
can intellectual property system. Following this assumption one may
envision the tremendous growth of American intellectual property since
the modest beginnings of the 1780s as a natural and necessary unfolding
of this inceptive genetic code. To be sure, technology developed, new
markets opened up, and vast new opportunities for commercializing
information appeared. But the process was one of extending the original
authorship-based model of intellectual property to new domains, perfect-
ing its tenets and adapting it to new circumstances. It was nothing of the
sort. The nineteenth century was a crucial formative era for intellectual
property. New elements that were anything but natural extensions of
the original authorship ideology developed and became central within
intellectual property law and its underlying conceptual foundation.
And yet the constitutive image of the authorial owner refused to depart.
Even as individual authorship disappeared from the law (or failed to
appear in the first place), its Cheshire cat smile kept hovering over it.
Sometimes it exerted real force, at other times it elicited mere lip service,
and in yet others it took perverse forms. What emerged early in the
twentieth century, after a gradual but profound process of change,
was a thoroughly new intellectual framework. This book examines the
development of this modern framework of intellectual property in the
context of the two oldest and most important branches of the field: patent
and copyright.
At the end of the eighteenth century the fields of patent and copyright
were in a state of deep transition. To an extent, each of the fields reflected
its new official understanding as a universal regime of creators’ property
rights in the product of their minds. In important respects, however,
they retained many of their former features. In essence, the traditional
privileges of publishers and entrepreneurs were universalized and
4 Introduction

bestowed on authors and inventors. In the following century this basic


framework was subjected to various pressures: the claims of economic
interests, competing ideological commitments, and new social conditions.
The end result of this process was a new conceptual synthesis of owner-
ship of ideas.
Was there a general pattern? Recent accounts suggest that a major
theme of nineteenth-century American intellectual property was
“the democratization of invention.”3 According to these accounts inven-
tion was democratized in the sense that hard-to-obtain privileges,
bestowed sparingly on a small elite, were supplanted by generally access-
ible, universal rights. Procedural and substantive barriers to entry were
lowered. Patents and copyrights became available to all on satisfaction of
standardized general criteria designed to maximize the public benefits
of the regime. The result was the harnessing of the creative energy of
a broad swath of technological and cultural innovators who could
enjoy some of the social value of their innovation through property
rights. There is much truth to this account. Around the middle of the
nineteenth century invention was indeed democratized in America.
So was incorporation. The structural similarity between the democratiza-
tion of invention and the rise of incorporation as a generally available
form of doing business is striking. The latter story, however, has familiar
later chapters. By the end of the nineteenth century the “democratization”
of incorporation brought about the incorporation of America. Numerous
individuals and small firms continued to rely on the useful mechanism of
the corporation, but the period’s most important and enduring phenom-
enon was the rise of big business. Democratization was followed by
enormous concentration of wealth and power in a new market dominated
by large, hierarchical private organizations. Something similar happened
with the democratization of invention. In the late nineteenth century,
“democratized” intellectual property rights became important tools for
big business, and their form was adapted to the new corporate environ-
ment. The eighteenth-century individualism of authorial ownership
met corporate liberalism. What emerged was a new synthesis. Authorship
became authorship incorporated.
As happened in other contexts, the official individualist image of the
field was not discarded by the new framework of authorship incorpor-
ated. Even as important aspects of intellectual property rights came to rest

3
B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American
Economic Development, 1790–1920 (Cambridge: Cambridge University Press, 2005).
Introduction 5

on other premises, the constitutive myth of the field remained that of the
individual author or inventor who owns the product of his or her mind.
This resulted in a variety of curious legal and conceptual forms. Some
elements of the intellectual framework of owning ideas were simply
underdetermined or open to a wide range of interpretations under the
abstract authorial ownership construct. For example, the premise that
authors and inventors own their intellectual creation left ample room for
maneuver on the questions of what it was exactly that was owned and
what it meant to own it. Here it was a variety of other ideological
and economic forces that shaped the concrete meaning of owning ideas.
In other contexts official authorship ideology came into direct conflict
with other powerful influences. The assumption of strong originality
as the hallmark of the genius creator, for example, clashed both with
economic demands for broad availability of intellectual property rights
and with a new prevalent image of intellectual commodities whose value
is determined by the market alone. The result of such conflict was intricate
ideological concepts embodying contradictory assumptions as well as
mechanisms for mediating these contradictions.
What emerged at the dawn of the twentieth century was a new ideo-
logical scheme for giving meaning to the idea of intellectual property.
Its anatomy was roughly as follows. One set of concepts constituted the
creator-owner entitled to property rights by defining the essential qualities
of this figure. Another cluster of ideas applied to what was being owned.
It created a concept of an intangible object to which legal rights applied.
A third and related group of ideas gave meaning to the notion of owning
an intellectual object. These ideas defined the relationship between the
owner and others in regard to the postulated intangible object.
The book is organized around this structure of meaning in its copyright
and patent variants. Chapter 1 lays down the foundation for understand-
ing the legal and conceptual transformations of the nineteenth century
by explaining the background of the English, colonial, and state origins
of American intellectual property law. It shows how at the eve of creating
the federal regimes the practices of copyright and patent were already
grounded in a new abstract ideology of authorship and yet lacked a well-
developed framework of owning ideas along the three dimensions
described above.
Chapters 2 and 4 focus on the concept of the genius creator in
its copyright and patent iterations: the author and the inventor. In each
of these fields the abstract defining feature of authors – intellectual
creation – was instantiated in specific institutional arrangements. These
6 Introduction

arrangements revolved around a focal organizing notion: originality in


copyright and the inventive faculty in patent. In this way each field
developed its own version of the image of the individual creator and
placed it at its ideological center. At the same time, each field radically
limited the practical significance of the ideological image, often containing
concrete rules at direct odds with it. In this way by the end of the
nineteenth century intellectual property law became caught in a paradox.
It was all about original authorship and had little to do with it. One aspect
of elaborating the concept of authorship related to the nature of the claim
of the individual author on the state. In both patent and copyright
there emerged a particular understanding of these claims as “rights”
rather than “privileges.” Whether intellectual property rights were philo-
sophically grounded in natural rights or public utility, they acquired the
institutional form of universal entitlements open to all and accompanied
by a duty of the state to grant and enforce them on a formally equal basis.
Chapters 3 and 5 follow the development of the idea of an intangible
object of property and of the meaning of ownership in such an object in
the fields of copyright and patent respectively. A preliminary question
about the ownership of intangibles pertains to the identity of the owner.
The answer seems to follow inevitably from the grounding of the field in
individual authorship: the owner is the author who created the intangible
through his or her mental powers. In the second half of the nineteenth
century, however, the principle of authorial ownership came under
increasing pressure from economic interests who trumpeted the “neces-
sity” of shifting ownership away from individual creators. The result was
a complex array of rules that in some contexts – most importantly that of
employment – deprived creators of the status of owners. There also
emerged a set of techniques for managing the tension between these rules
and the ideological principle of authorial authorship.
Another aspect of owning intangibles related to the object being
owned. In traditional property law one could point at a concrete physical
object of property – a plot of land or a piece of jewelry. The physicality of
property grounded ownership in a graspable phenomenon: a seemingly
natural connection between the owner and the owned based on physical
possession. It also endowed the object of property with clear physical
boundaries that supposedly defined the scope of the legal right in an
objective manner. The lack of physicality thus posed a serious challenge
once the idea of intellectual property was taken seriously and had to
be translated into concrete rules and practices. The initial response was
to create a construct of a semi-materialist object of ownership, at once
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She turned upon me with a piteous pain in her voice. I had opened
a door of release to her, I suppose, and before she could escape
shut it again in her face. I was stumbling weakly on an explanation,
when suddenly from somewhere above the baby began to wail.
Instantly her face assumed the strangest expression—a sort of
exalted hardness. She put up her hand, listened a moment, then,
without another word, glided from the room. I am ashamed to say
that I seized the opportunity to put an instant period to my visit.
I expected to meet Valentine loitering without; but to my relief he
did not appear. So I went on my way fuming. What right had the man
to try to inveigle me into seeming to sanction his idiotcy by claiming
me its advocate? He wanted to buy justification, I suppose. There
are certain natures which cannot properly relish their own grief or
happiness unless a witness be by to report upon them. Such was
Valentine’s, I thought; and the thought did not increase my respect
for my friend. I fancied I had already plumbed the shallows of that
pretentious reserve, and was angry and half contemptuous that he
had so soon revealed himself to me. There was certainly something
attractive about the girl; but—well, he had not been the first to
discover the fact, and, when all was said, his infatuation showed him
a fool in my eyes.
That evening, when I was sitting alone writing, she suddenly stood
before me. My first shock of amazement was followed by a glow of
fury. I felt that I was being persecuted.
“Well, what is it?” I said harshly.
“I only wanted to tell you,” she said low, panting as if she had run;
“I wanted you to tell him that—that I know now what it is. I found out
the moment I left you; and I came to say—but you were gone.”
“Well?”
“It is the child, sir.”
“Yes, you are quite right—it is the child.”
No sooner had I said it, than I felt the weight of my self-
commitment. Had she discovered—remembered all? Did she
conceive the impediment as associated with some scandal attaching
to the ineffable Aunt Mim? or was the baby, in her clouded soul, but
an unattachable changeling, which had come to disrupt the kind
order of things and brand their household with a curse?
“Yes, it is the child,” I said, and leaned my forehead into my hand
while I frowned over the problem.
She made no answer. When I looked up at the end of a minute,
she was gone.
I started to my feet, and went up and down. I made no attempt to
follow. “It is better,” I thought angrily, “to let this stuff ferment in its
own way. I could have given no other answer.”
At the twentieth turn I saw Valentine before me, and stopped
abruptly.
“Well,” he said; “were you able to get it out of her?”
“What?” I asked defiantly.
“The reason—the impediment, you know?” he answered.
“Sit down, Valentine,” I said. “I will tell you the truth. I hinted that
the mésalliance might be her unconscious consideration.”
“She is not so proud,” he said quietly; “though I’m unworthy to
buckle her little shoe for her.”
I positively gasped.
“O! if that’s your view! But, anyhow, she was seeming to accept
mine, when the infant hailed her, and she left me, and I bolted. You
put too much upon me—really you do, Val; and here’s the sequel.
Ten minutes ago she appeared in this room and told me that she had
discovered the reason—the real one this time.”
“And it was?”
“The baby—no less.”
“What! Does she——?”
“I don’t know from Adam. I was thinking over my answer; and
when I looked up, she was gone.”
“And you gave her no reply?”
“O yes! I told her I entirely agreed with her. I had to be honest.”
“Verender! You must come with me!”
“Go with you!”
“You’ve called the tune; you must pay the piper.”
“I don’t know what you mean. I’ll see you—cremated first!”
He stared at me a moment, his teeth showing, his eyes rounding
in the dusk, his fists clinching and unclinching; then he, too, was
gone. And I went and stood at the window, slinking into the curtains,
and feeling myself the most abused cur in all London.

For a fortnight this state continued in me, through alternations of


depression, self-accusation, and savage bursts of rebellion. On the
sixteenth day a brief note, begging me to call at his rooms, reached
me from Valentine.
“I won’t go,” I swore through my teeth, feeling an inclination to tear
the paper in them; and five minutes later was on my way.
“He shall justify me to myself,” I had thought. “I’ll let my conscience
be his footstool no longer.”
The fellow lived en prince in Piccadilly. I found him in the midst of
a litter—boxes and packages and strewed floors—evidently on the
eve of a journey. He greeted me, twinkling, in high excitement—not a
trace of grievance or embarrassment in his manner.
“Leave those things, Phillips,” he said to his staid valet. “We’ll
finish by and by.”
The man left the room; and his master took me by the sleeve,
while I held myself in reserve—unconsciously, at the same time,
softening to his geniality.
“We’re off to Capri—Egypt,” he said, “following our late summer
with the swallows.”
“You and—Phillips?” I asked.
“I and my wife,” said he, with a laugh. “Hush! She’s seeing the
baby to sleep.”
He could say it without a blush; and they had been married, as I
came to learn, just a week! He led me on tiptoe to a distant room,
and bade me look through the opened door. Nanny, crowned, proud
as any young queen, with conscious maternity, was bent, singing
softly, above a little cot. The sight of her—Val’s wife—restored me at
once to my self-respect. I had done nothing after all, it seemed, but
help to precipitate an event I deplored. My shout had brought down
the avalanche. Henceforth my position was to be that of the amused
onlooker.
He let me stare; then led me away with all his old affectation of
pregnant mystery. We went out together—I don’t know why—into the
Green Park. It seemed remote and silent, and the better shadows of
night were beginning to troop under its trees. Then he spoke to me,
as follows:
“Verender, you have a right to know. You remember what you told
me that evening? I wasn’t just to you, perhaps. I foresaw issues to
which you must necessarily be blind. The baby stood between us,
you said. It did, but not in the way you meant to imply. I am its
father.”
I listened perfectly silent, and very grave, as we stepped on
together.
“I will say of, not for, myself,” he continued, “that I had known
nothing of the fruits of a little moonlight idyll out in that Kent village. I
was hop-picking, as she was, but for a worser reason. Our encounter
in B—— Hospital was my first intimation of the truth. Till that moment
I had never considered, at least had been careless of, a sequel; had
never, of course, had a shadow of thought to identify the patient with
my victim. Then in a moment—Verender, her helplessness found all
that wasn’t bad in me. She didn’t know me—the curtain was too
thick. I determined to woo and win, as a stranger, what was already
my own. Was I right?”
I nodded. “Yes, you were right.”
“Then came the strange part,” he said—“a sort of
subconsciousness of an impediment she could not define. It was her
dishonour, Verender—my God! Verender, her dishonour!—that found
some subtle expression in the little life introduced into her home. She
always feared and distrusted the child; and I tell you I lived in horror
that some day her witlessness would arm her gentle hand to do it a
hurt. For she wanted to come to me, Verender, she wanted to come,
and it was as if she couldn’t, and nobody would tell her why.
“You told her, you old rascal! And with what result, do you think?
When I followed her, I found her gone—she had taken the baby from
its cot, and hurried out. The old harpy was there, raving and gobbling
beyond reason. I had her down on her knees to confess. She
admitted that the girl had come in, in a fever to proclaim her
knowledge of the bar which separated us. Nanny had rounded upon
her, it appeared, and accused her, Aunt Mim, of wantonly causing
the scandal which had brought this shadow into her life. And then—
perhaps it wasn’t to be wondered at—Auntie exploded, and gave up
all.”
“The truth?”
“All of it but what the old hag herself didn’t know—the name of the
villain. That, circumstances had kept from her, you see. She let
loose, did Auntie—we’ll allow her a grain of justification; to have her
forbearance turned upon herself like that, you know!—and screamed
to the girl to pack, and dispose of her rubbish somewhere else. And
Nanny understood at last, and went.”
“Where?”
“Ah, where? That was the question. I’d only one clue—Skene and
the river; but I seized upon it, and my inspiration proved right. She’d
gone instinctively to the only place where, it seemed, her trouble
could be resolved. You see, she hadn’t yet come to identify me with
it. But I followed, and I caught her in time.”
He hung his head, and spoke very low.
“I took the next train possible to Skene. Verender, I’m not going to
talk. It was one of those fainting, indescribable experiences, like the
voice in the burning bush. Cold dawn it was, with a white bubbling
river and the ghost of an old moon. She had intended to commit it to
the water—the fog wasn’t yet out of her brain—and then, all in an
instant, the mother came upon her, and the memory of me; and she
ran to cast herself in instead, and saw me coming.”
There followed a long interval of silence.
“And Aunt Mim?” I asked drily, chiefly to keep up my character.
He laughed.
“O! we’ve added an honourable moiety to a dishonourable
pension, and settled her,” he said.
Another silence followed.
“Well, I apologize,” I said grumpily.
THE SOUL OF THE PROFESSOR
John Stannary hungrily paced his laboratory, awaiting an expected
advent. A brilliant coronal of candles, concentrated within a shade
and pendent from a black beam over the dissecting table, regularly
identified him as he came within its radiance, and as regularly, when
he had passed without it, returned to its scrutiny of the empty slab
beneath, as if it were trying to trace on that blank surface the
unwritten hieroglyphics of his development. Yet, if each of its half-
score fiery tongues had been as polyglot as the Apostles’ tongues of
flame, it could have found among them all no voice to dispute his
lifelong consistency with himself. From the hard, ungracious child,
who had rejoiced to discomfit the love which sought to hedge him;
from the cynic schoolboy, to whom to awaken and analyze pain in
the living had been the only absorbing sport; from the
unimpassioned student, who had walked the hospitals like a very
spectre of moral insensibility; from the calculating libertine, whose
experimental phase of animalism had been as brief as it was
savage; from the lust of life, soon spent, to the bloodless analysis of
its organic motives; from the soulless child to the virile monster of
science; from nothingness to a great early reputation, to honours, to
a fine house, to his present self and condition, in short, Professor
Stannary’s progress had been entirely and unerringly consistent. He
was one of those born to account for results, not by any means with
a view to clearing the stream of tendency by cleansing its source. On
the contrary, he never would have hesitated further to contaminate it,
could he by so doing have evolved some novel epidemic. His fight
was not to win Nature to God, but to the laboratory; and, if he had a
conqueror’s ambition, it was to die gloriously upon a protoplast, at
that beginning of things which his fathers had struggled through
æons to forget. To have called him a dog nosing back for a scent,
would have been to libel the sorriest of mongrels with an inch of tail
to wag at a kind word. Yet he had routled so much, nevertheless,
that his eyes were inflamed, and his features pimpled, and his nose
itself sharpened as with much whetting on carrion. And, still
unappeased, he paced his shambles that evening like a caged
ravening jackal.
In those early decades of the nineteenth century,
anthropophagous science, especially when non-official, was often
hard put to it for a meal. The “ringing grooves of change” were
sounding; discovery was a new-risen star; ghoulish explorers
shouldered one another in their struggle for the scientific pabulum
which the grave afforded. But the supply, die as men would, was
unequal to the demand. The hospitals kept their own; the others, à
contre-cœur, must keep the resurrection-men. They pulled the blinds
down on their consciences; they were willing to accept the least
plausible of explanations, for the Cause was paramount. But, indeed,
we are all casuists when we want to justify our lusts to ourselves.
Still the material lacked, only, according to the universal law of
necessity, to evolve its more desperate instruments of supply. And
then at last, hard-driven, first one, and after him another and another,
had the panic courage to pull up those blinds, and let in the light on
some very shocking suspicions—with the result that Burke was
hanged in Edinburgh, and Bishop and Williams in London.
Professor Stannary was not of these white-livers. He pulled up no
blind, for the simple reason that he had let none down. He would
have diagnosed conscience as a morbid disease characterized by a
diathetic condition, and peculiar to fools of both sexes and all ages.
He would have said that to ask any question in this world was to
invite a lie, and that in all his thirty years’ experience he had found
none but the dead to answer back the unswerving truth. Well, if they
did? Did it matter to them, being dead? But it mattered greatly to the
cause of science to get at the truth; and he, for one, was certainly
not going to question the means so long as the results came to
justify them.
While yet, however, the blinds were down and the pitch-plaster but
an ugly suspicion, the competition for material had not so ceased of
its keenness but that Professor Stannary had found himself checked,
one day, under the very near-conquered crest of a physiological
peak, for want of the final clue to that crowning achievement—a clue
which, like Bluebeard’s key, turned upon nothing so intimately as
dead bodies. Step by step he had reasoned his way to this position,
only, when within touch of the end, to find himself held up, tantalized,
irritated by an inability to proceed farther until a nice necessity
should be provided. His material, in fact and in short, had given out
at the psychologic moment. His laboratory was already a museum of
shredded particles—the pickings from much inevitable waste of dead
humanity. There needed only the retraversing of certain nerves, or
ducts, or canals to put the finishing touches to a great discovery. And
then—the summit, the tribune, as it were, from which he was
engaged to announce on the morrow to the Royal Society the
triumphant term to his investigations.
Already, pacing to and fro, eager and impatient, in the silent room,
he foresaw himself the recipient of the highest honour it was in the
power of that body to bestow. He was not above desiring it. He was
not himself so superlatively rational but he could covet applause for
knocking yet another long nail into the coffin of irrationality; could
expect the recognition of the world for his services in helping to
reduce it, its passions and its hopes and its pathetic fallacies, to
some mathematical formulæ. There is nothing so incomprehensible
to the men of science as the reluctance of the unscientific to part
with their doting illusions. To be content to rejoice or sorrow in things
as they seem, and not to wish to know them as they are—that, they
think, is so foolish as to justify their hardest castigation of the folly. At
least so thought John Stannary, as, with his lips set sourly, he
paused, and consulted his watch, and listened for a sound of
expected footsteps shuffling down the hang-dog passage which
skirted that wall of the house, and into which his laboratory door
conveniently opened.
Not a whisper, however, rewarded him. He put his ear to the
panels. Even then, the surf-like murmur of distant traffic—or the thud
of his own excited heart, he could not tell which—was the only
articulate sound. He glanced up angrily at the shortening candles
before resuming his tramp. As he passed to and fro, from dusk to
light, and into dusk again, he seemed to be demonstrating to a
theatre of spectral monstrosities the hieroglyphics of that same
empty slab. For the central core of radiance, concentrating itself with
deadly expectancy upon its surface, had, nevertheless, its own
ghostly halo—a dim auditorium, tier over tier, peopled with shadows
of misbegotten horrors. Sets of surgical steel in the pit, arrayed
symmetrically on a table as if for a dinner party of vampires;
nameless writhed specimens on cards or in bottles, standing higher
behind the dry sleek of glass; over all, murderous busts in the
gallery, the dust on their heads and upper features giving them the
appearance of standing above some infernal sort of footlights—with
such shapes, watchful and gloating in suggestion, was the man
hemmed in. They touched his nerves with just such an emotion as
the ordinary citizen feels towards his domestic lares; they affected
him in just such proportion as he was moved by the thought of the
possible manner in which an order he had given to some friends of
his that morning might be executed. That is to say, his feeling
towards these dead members, as towards the means taken by
others to procure him the use of them, was utterly impersonal. He
had had at this pass a great truth to demonstrate. “A body, this night,
at any cost,” he had simply ordered, and had straightway shut the
door on his caterers. He had had no thought of scruple. His
responsibility in these matters was to the ages; never to the
individual.

A low tap sounded at the door. He was there in three strides, and
opening swiftly, let in two men, the one shouldering a sack, the other
hovering about his comrade in a sort of anxious moral support.
Professor Stannary, without a word, pointed to the table. The
laden one, as mutely, shuffled across, backed, heaved his burden
down, and stood to take off his hat and mop his brow. He was a
burly, humorous-looking fellow, with a sort of cheerful popularity
written across his face—an expression in strong contrast with that of
the other, who, tall and stealthy, stood lank behind him, like his
shadow at a distance, watching the persuasive effect of his principal
on the customer. It was he who had closed the door gently upon
them all as soon as they were in, and now stood, his teeth and
eyeballs the prominent things in him, softly twirling his hat in his
hand.
“Take away the sack,” said the Professor quietly.
The burly man obeyed, sliding it off like a petticoat; and revealed
the body of a young woman. Lowering and rubbing his jaw, the
Professor stood some moments pondering the vision. Then he
turned sharply.
“You are late. I expected you sooner.”
“The notice was short, sir,” answered the man coolly. “These ’ere
matters can’t be accommodated in a moment. As it is she’s warm. I
bought the body off of——”
The other interrupted him—
“I don’t want to know. You can hold your tongue, and take your
price, and go.”
“Short and sweet,” said the man.
He laughed, and his friend laughed in echo, putting his long hand
to his mouth as if in apology for such an unpardonable ebullition of
nature.
“As to the price,” said the former, “taking into consideration the
urgency, and the special providence, so to speak, in purwiding, at a
moment’s notice too, this ’ere comely young——”
A certain full chink of money stopped him.
“Thankee,” he said, after a short negotiation. “I’ll own you’ve done
the handsome, sir, and we’ve no cause to complain. Not but what I
had to give——”
“Good night!” said the Professor.
Not till they were gone, locked out, and the very trail of their filthy
footsteps hidden under the black droppings of the night, did he turn,
for all his impatience, and regard the body again.
“Nancy,” he murmured to himself; “yes, it’s Nancy.”
Into the vast study of biology it is perfectly certain that a personal
knowledge of biogenesis must enter. Here, too, the individual must
be sacrificed to the cause. Well, by virtue of that phase in his career
before-mentioned, he had already once made of Nancy a holocaust
to science. If the fruits of that sacrifice had been to be found in a
ruined life, a social degradation, a gradual decline upon infamy, what
was it all to him? As german to the general subject as the dead
specimens on his walls was the living specimen of his passion. Ex
abusu non arguitur ad usum. Still, it was a strange coincidence that
she should come thus to consummate his work.
Looking upon her frozen face, he was aware of certain tell-tale,
rudely-erased tokens about the mouth. He never had a doubt as to
what they signified. It was a rude kiss that of the pitch-plaster, more
close and savage than any he himself had once pressed upon those
blistered lips. So, the murderous beasts had gone the short way to
supply his urgency! Would they have taken it none the less, he
wondered, if they could have known in what relation their victim once
stood towards their employer? Very likely. Very justly, too, could they
believe him consistent with himself.
Nevertheless, though he had no conscience, though he had too
often scored that fact on human flesh with a knife to be in any doubt
about it, it was notable that, as he moved now, perfectly cold and
collected, to make some selection of tools from the table hard by, he
was registering to himself a vow, mortal to some folks, that no effort
of his should be lacking to help bring certain vile instruments to their
judgment—so soon as his disuse of them should find warrant in a
fuller supply of the legitimate material.
As he groped for what he wanted, a sparrow twittered somewhere
in the dark outside. He started, and dwelt a moment listening. Birds!
the little false priests of haunted woods, who sang their lying
benedictions over every folly perpetrated in their green shades! Why,
he had loathed them, even while he had been making their loves the
text for this early experiment of his in rustic nature. They had been
singing when——grasping his knife firmly, he returned to the table.
Something had happened there. For one moment the blade shook
in his hand. To his practised eye there were signs—the ghostliest,
the most remote—but signs still. A movement—a tremor—the
faintest, faintest vibration of a soul, unreleased, struggling to return
to the surface—that was what he felt rather than saw. He recalled
the hasty character of the deed; he thought of the shock, of the
suspended trance into which such a deed might cast a sensitive
subject. Mastering himself, with the dry firm will of an operator, he
walked once more unhurriedly to the instrument table, and made a
further selection.
The sparrow twittered again. Birds in the wood—small
procuresses to Sentiment! What a trollop she was, that Sentiment!
He had known ethereal creatures go from picking the bones of
stuffed larks, to moralize sweetly on the song of nightingales under
the moon. For himself, barring his natural asceticism, he would have
no remorse whatever in devouring nightingales. Such emotions were
born of surfeit, and the moral of them all was that a bird in the
stomach was worth two, or two hundred, in the bush. The one was
the decoy which brought the many into notice. Why, he himself,
when flushed with passion——
Harder than steel, hard as flesh can be, he stepped back to the
table.
Yes, there was no longer doubt about it. He must decide quickly.
Decide! What was there in all his life to warrant in him a moment’s
indecision? His pledge to to-morrow was paramount over his pledge
to yesterday. It was by very virtue of the past that he owed
everything to the future. The Cause was himself, bone of his bone,
flesh of his flesh. As she had made herself one with him, so must
she consummate the gift. He chose to believe, even, that she would
not hesitate could she know. He grasped his knife.
Her hair! He had said some foolish things about it once. In a
sudden fury he seized it, and sliced it off close by her head, and
flung it aside. She looked strangely innocent and boyish thus shorn.
He had a momentary grotesque thought that he would excuse
himself to himself by pretending that she was a boy. It passed on the
instant. What excuse was necessary? He remembered how once, to
his idle amusement, when she had fancied herself secure of him,
she had coveted greatness for his future. Well, it was within his
grasp at length, and by her final means.
Damn the sparrow! What was there in all the murky town to tempt
his twittering? He had blunted his knife’s edge on the hair. He must
fetch another.
As he came back with it, the bird seemed to flutter and cry out
against his very door. In a swift access of passion he strode to it, and
opened. Whether old, or wounded, or poisoned in the drooping fog,
there lay the little thing, gasping, with outspread wings, upon the
pavement. One moment the Professor hesitated; then, crushing out
the tiny shrieking life under his foot, he relocked the door and
returned with a firm step to the table.
*****
His treatise, read the next day before an august body, was said
masterly to resolve an intricate and long obscure physiologic
problem.
It brought him additional and great honour, and, what he prized
above all, that gift of the Society’s gold medal, which is only granted
to discoveries of the first importance. But then, it must be
remembered, he had given his soul to the Cause. The stain of its
sacrifice was yet red on the stones outside his door.
A GHOST-CHILD
In making this confession public, I am aware that I am giving a
butterfly to be broken on a wheel. There is so much of delicacy in its
subject, that the mere resolve to handle it at all might seem to imply
a lack of the sensitiveness necessary to its understanding; and it is
certain that the more reverent the touch, the more irresistible will
figure its opportunity to the common scepticism which is bondslave
to its five senses. Moreover one cannot, in the reason of things, write
to publish for Aristarchus alone; but the gauntlet of Grub Street must
be run in any bid for truth and sincerity.
On the other hand, to withhold from evidence, in these days of
what one may call a zetetic psychology, anything which may appear
elucidatory, however exquisitely and rarely, of our spiritual
relationships, must be pronounced, I think, a sin against the Holy
Ghost.
All in all, therefore, I decide to give, with every passage to
personal identification safeguarded, the story of a possession, or
visitation, which is signified in the title to my narrative.

Tryphena was the sole orphaned representative of an obscure but


gentle family which had lived for generations in the east of England.
The spirit of the fens, of the long grey marshes, whose shores are
the neutral ground of two elements, slumbered in her eyes. Looking
into them, one seemed to see little beds of tiny green mosses
luminous under water, or stirred by the movement of microscopic life
in their midst. Secrets, one felt, were shadowed in their depths, too
frail and sweet for understanding. The pretty love-fancy of babies
seen in the eyes of maidens, was in hers to be interpreted into the
very cosmic dust of sea-urchins, sparkling like chrysoberyls. Her soul
looked out through them, as if they were the windows of a water-
nursery.
She was always a child among children, in heart and knowledge
most innocent, until Jason came and stood in her field of vision.
Then, spirit of the neutral ground as she was, inclining to earth or
water with the sway of the tides, she came wondering and dripping,
as it were, to land, and took up her abode for final choice among the
daughters of the earth. She knew her woman’s estate, in fact, and
the irresistible attraction of all completed perfections to the light that
burns to destroy them.
Tryphena was not only an orphan, but an heiress. Her
considerable estate was administered by her guardian, Jason’s
father, a widower, who was possessed of this single adored child.
The fruits of parental infatuation had come early to ripen on the
seedling. The boy was self-willed and perverse, the more so as he
was naturally of a hot-hearted disposition. Violence and remorse
would sway him in alternate moods, and be made, each in its turn, a
self-indulgence. He took a delight in crossing his father’s wishes, and
no less in atoning for his gracelessness with moving demonstrations
of affection.
Foremost of the old man’s most cherished projects was, very
naturally, a union between the two young people. He planned,
manœuvred, spoke for it with all his heart of love and eloquence.
And, indeed, it seemed at last as if his hopes were to be crowned.
Jason, returning from a lengthy voyage (for his enterprising spirit had
early decided for the sea, and he was a naval officer), saw, and was
struck amazed before, the transformed vision of his old child-
playfellow. She was an opened flower whom he had left a green bud
—a thing so rare and flawless that it seemed a sacrilege for earthly
passions to converse of her. Familiarity, however, and some sense of
reciprocal attraction, quickly dethroned that eucharist. Tryphena
could blush, could thrill, could solicit, in the sweet ways of innocent
womanhood. She loved him dearly, wholly, it was plain—had found
the realization of all her old formless dreams in this wondrous birth of
a desire for one, in whose new-impassioned eyes she had known
herself reflected hitherto only for the most patronized of small
gossips. And, for her part, fearless as nature, she made no secret of
her love. She was absorbed in, a captive to, Jason from that moment
and for ever.
He responded. What man, however perverse, could have resisted,
on first appeal, the attraction of such beauty, the flower of a radiant
soul? The two were betrothed; the old man’s cup of happiness was
brimmed.
Then came clouds and a cold wind, chilling the garden of
Hesperis. Jason was always one of those who, possessing classic
noses, will cut them off, on easy provocation, to spite their faces. He
was so proudly independent, to himself, that he resented the least
assumption of proprietorship in him on the part of other people—
even of those who had the best claim to his love and submission.
This pride was an obsession. It stultified the real good in him, which
was considerable. Apart from it, he was a good, warm-tempered
fellow, hasty but affectionate. Under its dominion, he would have
broken his own heart on an imaginary grievance.
He found one, it is to be supposed, in the privileges assumed by
love; in its exacting claims upon him; perhaps in its little unreasoning
jealousies. He distorted these into an implied conceit of authority
over him on the part of an heiress who was condescending to his
meaner fortunes. The suggestion was quite base and without
warrant; but pride has no balance. No doubt, moreover, the rather
childish self-depreciations of the old man, his father, in his attitude
towards a match he had so fondly desired, helped to aggravate this
feeling. The upshot was that, when within a few months of the date
which was to make his union with Tryphena eternal, Jason broke
away from a restraint which his pride pictured to him as intolerable,
and went on a yachting expedition with a friend.
Then, at once, and with characteristic violence, came the reaction.
He wrote, impetuously, frenziedly, from a distant port, claiming
himself Tryphena’s, and Tryphena his, for ever and ever and ever.
They were man and wife before God. He had behaved like an
insensate brute, and he was at that moment starting to speed to her
side, to beg her forgiveness and the return of her love.
He had no need to play the suitor afresh. She had never doubted
or questioned their mutual bondage, and would have died a maid for
his sake. Something of sweet exultation only seemed to quicken and
leap in her body, that her faith in her dear love was vindicated.
But the joy came near to upset the reason of the old man, already
tottering to its dotage; and what followed destroyed it utterly.
The yacht, flying home, was lost at sea, and Jason was drowned.
I once saw Tryphena about this time. She lived with her near
mindless charge, lonely, in an old grey house upon the borders of a
salt mere, and had little but the unearthly cries of seabirds to answer
to the questions of her widowed heart. She worked, sweet in charity,
among the marsh folk, a beautiful unearthly presence; and was
especially to be found where infants and the troubles of child-bearing
women called for her help and sympathy. She was a wife herself,
she would say quaintly; and some day perhaps, by grace of the good
spirits of the sea, would be a mother. None thought to cross her
statement, put with so sweet a sanity; and, indeed, I have often
noticed that the neighbourhood of great waters breeds in souls a
mysticism which is remote from the very understanding of land-
dwellers.
How I saw her was thus:—
I was fishing, on a day of chill calm, in a dinghy off the flat coast.
The stillness of the morning had tempted me some distance from the
village where I was staying. Presently a sense of bad sport and
healthy famine “plumped” in me, so to speak, for luncheon, and I
looked about for a spot picturesque enough to add a zest to
sandwiches, whisky, and tobacco. Close by, a little creek or estuary
ran up into a mere, between which and the sea lay a cluster of low
sand-hills; and thither I pulled. The spot, when I reached it, was
calm, chill desolation manifest—lifeless water and lifeless sand, with
no traffic between them but the dead interchange of salt. Low
sedges, at first, and behind them low woods were mirrored in the
water at a distance, with an interval between me and them of
sheeted glass; and right across this shining pool ran a dim, half-
drowned causeway—the sea-path, it appeared, to and from a lonely
house which I could just distinguish squatting among trees. It was
Tryphena’s home.
Now, paddling dispiritedly, I turned a cold dune, and saw a
mermaid before me. At least, that was my instant impression. The
creature sat coiled on the strand, combing her hair—that was
certain, for I saw the gold-green tresses of it whisked by her action
into rainbow threads. It appeared as certain that her upper half was
flesh and her lower fish; and it was only on my nearer approach that
this latter resolved itself into a pale green skirt, roped, owing to her
posture, about her limbs, and the hem fanned out at her feet into a
tail fin. Thus also her bosom, which had appeared naked, became a
bodice, as near to her flesh in colour and texture as a smock is to a
lady’s-smock, which some call a cuckoo-flower.
It was plain enough now; yet the illusion for the moment had quite
startled me.
As I came near, she paused in her strange business to canvass
me. It was Tryphena herself, as after-inquiry informed me. I have
never seen so lovely a creature. Her eyes, as they regarded me
passing, were something to haunt a dream: so great in tragedy—not
fathomless, but all in motion near their surfaces, it seemed, with
green and rooted sorrows. They were the eyes, I thought, of an
Undine late-humanized, late awakened to the rapturous and troubled
knowledge of the woman’s burden. Her forehead was most fair, and
the glistening thatch divided on it like a golden cloud revealing the
face of a wondering angel.
I passed, and a sand-heap stole my vision foot by foot. The vision
was gone when I returned. I have reason to believe it was
vouchsafed me within a few months of the coming of the ghost-child.
On the morning succeeding the night of the day on which Jason
and Tryphena were to have been married, the girl came down from
her bedroom with an extraordinary expression of still rapture on her
face. After breakfast she took the old man into her confidence. She
was childish still; her manner quite youthfully thrilling; but now there
was a new-born wonder in it that hovered on the pink of shame.
“Father! I have been under the deep waters and found him. He
came to me last night in my dreams—so sobbing, so impassioned—
to assure me that he had never really ceased to love me, though he
had near broken his own heart pretending it. Poor boy! poor ghost!
What could I do but take him to my arms? And all night he lay there,
blest and forgiven, till in the morning he melted away with a sigh that
woke me; and it seemed to me that I came up dripping from the sea.”
“My boy! He has come back!” chuckled the old man. “What have
you done with him, Tryphena?”
“I will hold him tighter the next time,” she said.
But the spirit of Jason visited her dreams no more.

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