Chapter Three
The "Declaration of the Rights of Genius" in 1793

By the end of September 1792 the French monarchy had been formally abolished by the nation's new sovereign, the National Convention. With the Crown and its administration went the entire system of licit publishing under the Old Regime: the royal Administration of the Book Trade, the king's printers and the royal printing shop, the Court's patronage of writers, the academies, the royal censors, the system of literary privileges, the inspectors of the book trade, and the printers' and booksellers' guilds.^[1] Once preeminent, the Parisian publishing community found itself in default. The revolutionary movement to "spread enlightenment" had succeeded through the declaration of freedom of the press in liberating productions of the mind from the tyrannical institutions of the Old Regime. Within four years of Marie-Joseph Chénier's denunciation, the "seventeen inquisitions exercised . . . upon the minds of citizens" were gone.^[2]

Could anyone now print or sell anything—including works already published by someone else? The royal laws on the book trade defined the exclusive commercial monopoly on the publication of a work as a royal privilege, granted to the author or publisher by the king's "grace" alone. Had the abolition of privilege on August 4, 1789, abolished literary privileges? Retrospectively and prospectively? What about authors'

[1] An earlier version of this chapter appeared as "Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793," in Representations 30 (Spring 1990): 109–137.

[2] See above, chapter 1. Chénier, Dénonciation des inquisiteurs de la pensée, 41.

rights? What distinguished a privilege from a property right? Were ideas in fact a form of property? The cultural capital of the Old Regime, as embodied in literary privileges for books, hinged on these questions. So did the future of the publishing industry. How did the French Revolution redefine the laws on authorship and literary property?

Although the history of modern authorship has long been of interest to historians and literary critics, no single essay has been more influential in current investigations and discussions than Michel Foucault's meditation "What Is an Author?"^[3] Michel Foucault wrote, "The coming into being of the notion of the 'author' constitutes a privileged moment of individualization in the history of ideas. . . . It would be worth examining how the author became individualized in a culture like ours." He continued, "Since the eighteenth century, the author has played the role of the regulator of the fictive, a role quite characteristic of our era . . . of individualism and private property."^[4] Thus Foucault established a parallelism. The relation between the "author" and the "text," he suggested, emerged historically as the cultural incarnation of a new axis in socio-political discourse: the inviolable relation between the rights-bearing individual and private property. According to Foucault, this "privileged moment of individualization" was also a moment of privatization of knowledge claims as property, in which the individual author came to be the exclusive principle by which meanings are composed, manipulated, and determined, or, to use his word, "regulated."

Two recent historical investigations have responded to Foucault's invitation to "examin[e] how the author became individualized." Both

[3] Michel Foucault, "What Is an Author?" in Textual Strategies: Perspectives in Post-structuralist Criticism, ed. Josué V. Harari (Ithaca: Cornell University Press, 1979), 141–160. For the influence this essay has had on critical debates, see Harari (ed.), Textual Strategies; Peggy Kamuf, "Criticism," Diacritics 12, no. 2 (1982): 42–47; the response by Nancy K. Miller, "A Feminist Critic and Her Fictions," Diacritics 12, no. 2 (1982): 48–53; and Biddy Martin, "Feminism, Criticism, and Foucault," New German Critique 27 (1982): 3–30. For the impact of the essay in orienting historical research, see Martha Woodmansee, "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author,'" Eighteenth-Century Studies 17, no. 4 (1984): 425–448; Molly Nesbitt, "What Was an Author?" Yale French Studies 73 (1987): 229–257; Rose, "Author as Proprietor"; and Carla Hesse, "Reading Signatures: Female Authorship and Revolutionary Law in France, 1750–1850," Eighteenth-Century Studies 22, no. 3 (1989): 469–487.

[4] Foucault, "What Is an Author?" 141, 159.

Martha Woodmansee's study of the development of the concept of the author in eighteenth-century Germany and Mark Rose's exploration of the legal debates on authorship and literary property in eighteenth-century England tend to confirm Foucault's thesis; the concept of the individual author as proprietor of his work, they conclude, emerged as a result of the rapid commercialization of the book trade.^[5] For both these scholars, the advent of the modern cultural system can be marked by the translation of these new bourgeois socio-economic relations and cultural values into laws of copyright (in England in 1709 and in Prussia in 1794), that is, by their institutionalization as a system of legal regulation. Does the legal history of French authorship and copyright confirm this picture presented by Foucault and his successors? Did the French Revolution invent the "bourgeois author"? The answer to these questions lies in the cultural struggles in the opening years of the Revolution.

The Legal Contingencies of Liberty

The abolition of the principle of privilege by the National Assembly on August 4, 1789, threw the parameters of commercial publishing into doubt—and not just book publishing. Under the Old Regime all periodical publications had to bear a privilege as well. These privileges were granted on the basis of the particular area of knowledge that the journal intended to cover. Thus, for example, the journal of the Académie des Sciences was granted exclusive coverage of scientific developments; the Mercure de France enjoyed a monopoly on literary subjects; and so forth. But over the course of the eighteenth century two publishing concerns succeeded in accumulating and consolidating particular privileges to produce journals covering a wide variety of interests and subjects: namely, the Gazette de France , the Mercure de France, and the first Parisian daily, the Journal de Paris .^[6] These general journals were created through the calculated purchase and combination of narrower privileges, or by payment of usage rights to the bearers of those privileges.

After August 4, 1789, the system of privileges in periodical publishing fell apart. The owners of the Journal de Paris , for example, refused to continue to pay a rente to M. Palissot and the Dame Devaux for the right to report on events covered under their privilege for the Journal des

[5] Woodmansee, "Genius and the Copyright," 426; Rose, "Author as Proprietor," 56.

[6] Bellanger (ed.), Histoire générale de la presse française 1:188, 240.

deuils de la cour et du nécrologie des hommes célèbres .^[7] MM. Romilly, Cadet, Corancez, and Xhrouet, who owned the Journal de Paris, argued that the suppression of privileges applied equally to journals, and therefore they were no longer obliged to pay the rente . Palissot and Devaux took their complaint to the royal law courts at Châtelet and on May 18, 1790, won a judgment upholding their privilege.^[8] The owners of the Journal de Paris, however, in turn appealed the case before the newly constituted civil courts in July 1791. On July 22, the new court reversed the decision of Châtelet, determining that "as a result of the abolition of privileges, privileges on journals are suppressed as well."^[9] Palissot and Devaux thus lost their monopoly on covering court mourning rituals and the obituaries of famous men in the periodical press.

As trivial as this dispute may appear on its surface, the underlying legal issue had broad implications. The court's decision in effect abolished the internal barriers and tolls regulating the Old Regime periodical press. Journals and newspapers would no longer be required to limit their coverage to a particular area of knowledge. The abolition of these commercial publishing privileges, as much as the abstract declaration of the principle of freedom of the press, opened up the possibility for any individual to engage in the production of "news" of any sort.

Moreover, the abolition of the privileges of specialized journals simultaneously allowed the press empires of the eighteenth century to effect a de facto consolidation of their monopolies and an extension of their purview, for it freed them from the legal and economic constraints of the royal censors and the particular privilege holders to whom they had been accountable. While hundreds of new small pamphlet-newspapers poured onto the streets of Paris, the specialized journals of the Old Regime either disappeared or were swallowed up by the larger multi-genre dailies.^[10]

But did the abolition of privileges mean that all newspapers could

[7] Aristide P. Douarche, ed., Les Tribunaux civils de Paris pendant la Révolution (1791–1800). Documents inédits recueillis avant l'incendie du Palais de Justice de 1871 par Casenave (Paris: Le Cerf, 1905–1907), 1:94 and note. See also AN, ser. ADVIII, carton 38, "Réclamation d'un homme de lettres contre MM. Romilly, Cadet, Corancez et Xhrouet, associés du Journal de Paris," n.d.

[8] Ibid.

[9] Ibid.

[10] For two extremely interesting discussions of the consequences of these developments for newspaper publishing, see Labrosse and Rétat, Naissance du journal révolutionnaire; and Jeremy D. Popkin, Revolutionary News: The Press in France, 1789–1799 (Durham, N.C.: Duke University Press, 1990). See also Jeremy D. Popkin, "Journals: The New Face of the News," in Darnton and Roche (eds.), Revolution in Print, 141–164.

print exactly the same thing? Or did the owners and editors have exclusive commercial rights? Jacques-Pierre Brissot de Warville's journal the Patriote français is perhaps the most frequently celebrated example of the revolutionary challenge by journalists to the authority of the Crown to determine what was put into print and by whom.^[11] Yet within eight months of the first issue of the Patriote français , Brissot's journal fell prey to the consequences of the very ideology of unlimited freedom of the press that it had espoused. Brissot had joined in a partnership with the Paris publisher François Buisson to produce the Patriote français . The famous prospectus for this journal appeared in early April 1789, bearing Buisson's bookshop as the address for subscriptions.^[12] But when the royal Administration of the Book Trade suppressed the prospectus and prohibited publication of the journal, Buisson wrote to the administration denying any relation to Brissot and claiming that his name had been abused by the author.^[13]

After the declaration of press freedom in August 1789, however, Buisson acknowledged his contract with Brissot. Further, he now charged Brissot with a breach of contract for producing the journal with clandestine presses.^[14] Buisson asserted that Brissot's actions were sufficient cause for dissolution of the partnership and, further, that Buisson was thus free to publish his own journal under the title Journal patriote or any title he might choose—including Brissot's.^[15] Brissot's journal was an extraordinary success, and Buisson wanted to hold on to a share of it. Ironically, but not surprisingly, the fledgling royal Administration of the Book Trade now came to the defense of Buisson.^[16] If the press was totally free, the administration reasoned, then Buisson had as much right to publish a journal patriote as did Brissot.

The Révolutions de Paris , another ardent voice for unlimited freedom of the press, ran into similar problems. On November 3, 1789, the editor

[11] See, for example, Bellanger (ed.), Histoire générale de la presse française 1:424–425; and Söderhjelm, Régime de la presse 1:76.

[12] AN, ser. V1, carton 553, Correspondence between the director of the Royal Administration of the Book Trade, Poitevin de Maissemy, and the Paris Book Guild, April 14 and September 7, 1789.

[13] Ibid.

[14] Ibid., Correspondence between François Buisson and the Administration of the Book Trade, November 12, 1789.

[15] Ibid., Memorandum concerning Jacques-Pierre Brissot de Warville and François Buisson, September 17, 1789.

[16] Ibid.

and proprietor of this journal, Louis Prudhomme, wrote the National Assembly denouncing a "libel entitled no. XVI of the Révolutions de Paris, chez Froullé," which he claimed was a pirate edition.^[17] His only recourse was publicly to disown the issue in question because, after all, it was his own journal that argued there should be no civil laws limiting the press.^[18]

The Chaignieau brothers, owners of the popular Journal du soir , felt otherwise. The victims of repeated efforts to pirate both the title and contents of their journal, they finally filed a suit before the civil tribunal charging "usurpation of title and piracy" in March 1793.^[19] The court resolved that the Chaignieau brothers did in fact own the title of their journal, as well as their family name.^[20] They could not, however, claim ownership to the contents of their newspaper because the information belonged to everyone. Nonetheless, the auspices under which that information became public, in the form of title, format, and signature, belonged to those who first claimed them. In newspaper publishing, the legal claim to an exclusive commercial publishing right was rapidly shifting from the contents of the publication to its form—from the text to what Gérard Genette has called the "paratext."^[21]

But what about books? Had the abolition of privilege meant the abolition of particular claims on texts as well? Even those of living authors? The manager of the Administration of the Book Trade, Dieudonné Thiebault, worried about this in his closing report to the keeper of the seals in late 1790: "People may soon feel the need to establish or reestablish some general public mechanism . . . to protect authors' property against the abuses of piracy."^[22] But a "general public mechanism" was not forthcoming. Instead, with the suppression of the Administration of the Book Trade and then the Paris Book Guild, the job of policing what printers and booksellers produced and distributed devolved on local authorities. In Paris this meant the Commissioners of Police of the newly constituted Sections.

[17] AN, ser. AA, carton 56, doc. 1524, Letter from Louis Prudhomme, November 3, 1789.

[18] "De la liberté de la presse," Révolutions de Paris, no. 29, January 23–30, 1790, 17–18.

[19] Douarche (ed.), Tribunaux civils 1:401–402 and notes, 497–498.

[20] Ibid.

[21] Gérard Genette, Seuils (Paris: Seuils, 1987).

[22] AN, ser. V1, carton 553, Report from Thiebault to the keeper of the seals, [1790–1791].

When the Commune was reorganized in October 1789, it established a Police Committee composed of several administrators who were assigned to particular departments and accountable to the mayor. On October 10, 1789, Pierre Manuel was appointed administrator of the committee's division of the book trade and thus took charge of policing the book trade in Paris.^[23] In this capacity Manuel gained access to the archives of the lieutenant-general of police pertaining to the book trade, including copies of the registers of royal literary privileges. Over the course of 1789 and 1790 he mined these papers, exposing the tyrannical exploits of the cultural police of the Old Regime in his book La Police de Paris dévoilée .^[24] Ironically, only by virtue of having taken over their tasks did he gain access to the evidence to expose them.

Manuel had openly opposed the Paris Book Guild and its monopoly on the professions of printing and publishing. But what about the notion of literary privileges sanctioned by the regulations of 1777? And what about authors' rights? Would Manuel now take over the task of policing and protecting the literary privileges of authors and publishers? The few remaining records of the police of the Parisian districts from the years 1790–1793 enable us to reconstruct some of the realities of Parisian book publishing after the collapse of royal regulation.

By the end of 1789 pirate publishing was flourishing in Paris. Laurent Mathieu-Guillaume le jeune , a former member of the Paris Book Guild, was one of the many young booksellers who took advantage of the declaration of freedom of the press to open a printing shop.^[25] And the administrative chaos that ensued from that declaration no doubt put some risky ideas into his head. In late January 1790, the presses at the shop of François Didot le jeune on the rue Hurepoix were occupied with the production of Charles IX ou école des rois , a tragedy by Marie-Joseph Chénier, for the publisher Martin Bossange. Guillaume struck a deal with an apprentice printer named Morin who worked in Didot's shop. He got Morin to pass on the sheets of the Charles IX as they came off the presses; Guillaume then had the sheets reset by his own compositors, and he printed off pirate copies as fast as they emerged from Didot's

[23] Paul Robiquet, Le Personnel municipal de Paris pendant la Révolution (Paris: Jouaust, 1890), 257.

[24] Manuel testifies to this effect; see Lacroix (ed.), Actes de la Commune de Paris, 2d ser., 8:551–608. See also Manuel, Police de Paris dévoilée .

[25] The following account is reconstructed from the procès-verbal of the "plainte de S. Bossange et Cie.," found in AN, ser. Y, no. 15021, February 14, 1790.

presses. Apparently Morin came through with the entire work because Guillaume succeeded in completing the pirate edition and getting it onto the streets as fast as Bossange. He stored the bound copies in the Hôtel d'Orléans, where his foreman distributed them to two young men just arrived from Bordeaux in search of work, with instructions to sell the works in the Palais Royal.

Guillaume had distributed approximately six thousand copies of the tragedy in Paris before the scheme was discovered. When it became clear that a pirate edition was circulating in Paris, Morin apparently got cold feet and confessed that he had been bullied into delivering the sheets to Guillaume's workers under threat of violence. On February 5, 1790, Bossange appealed to the Police Committee to stop the pirate edition. Pierre Manuel signed orders for the deputies of the committee of the district of André des Arts to raid Guillaume's printing ship and the depot at the Hôtel d'Orléans, to confiscate any copies of the tragedy, and to break all the press forms for the edition. These tasks were successfully accomplished with the assistance of Bossange and his foreman, with AndréFrançois Knapen, former head of the Paris Book Guild, as a witness.

Bossange testified at the royal court at Châtelet that he owned the manuscript of Charles IX , having purchased it from Chénier for 15,000 livres, and that Guillaume was guilty of theft and that he had used criminal means to acquire the sheets of the edition. Guillaume had, to be sure, deprived Bossange of six thousand prospective customers. No trace of the outcome of this case remains, unfortunately. Nonetheless, it is evident that under Pierre Manuel's administration the Police Committee had taken over the surveillance and seizure functions of the Paris Book Guild and that the municipal authorities intended to do everything in their power to protect the property rights of living authors and the publishers to whom those authors had ceded their property.

Nor was the Bossange-Guillaume case an isolated incident. In October 1791, the noted moralist and satirist Jean-Pierre Claris de Florian complained to the police that a pirate edition of his historical work Numa Pompilius was being printed by Rochelle, a new printer on the rue St-Jean Beauvais.^[26] A visit to Rochelle's shop by the police commissioners of the district bore out his accusation. They found composed forms for the

[26] Archives de la Préfecture de Police de Paris (hereafter cited as APP), ser. AA, carton 200, feuilles 177–179, "Procès-verbal de police, section de St. Geneviève, 22–25 octobre 1791."

edition, which they smashed, and proof sheets, which they confiscated. Rochelle testified that he did not know the author and that he had been contracted to print the edition by a man named Prieur, a bookseller on the Quai Voltaire. The police searched Prieur's warehouse but failed to uncover any positive evidence of Prieur's role.

Rochelle and Prieur turned out to be quite a team. The day after Florian's complaint, the author Henri Bernardin de St. Pierre and Didot le jeune denounced Rochelle again as the source of a pirate edition of Paul et Virginie , which St. Pierre had contracted Didot to print.^[27] The following day the district police commissioners made another visit to Rochelle's shop, where they found the printing of Paul et Virginie in progress. Rochelle was out and his son claimed to know nothing of his father's business. But the commissioners confiscated the evidence and requested that the son inform his father that,

according to the Declaration of the Rights of Man, liberty means only the freedom to do what does not harm others; and that it harms others to appropriate the work of an author, because it is an infringement of the sacred right of property; and that such an enterprise, if it were to remain unpunished, would deprive citizens of the instruction they await from celebrated authors like M. Bernardin de St. Pierre, because no author would want to consecrate his labors to the instruction of his age if piracy were ever authorized.^[28]

St. Pierre and Didot then sought to find the entire edition in the hands of the publisher, Prieur, and prevent its distribution. In June 1792, they finally received a court order to search his bookshop on the Quai Voltaire and his warehouse on the rue Bourbon, at their own risk and expense.^[29] This time they charged Prieur with pirating Etudes de la nature , Paul et Virginie , Des Voeux d'un solitaire , and La Chaumière indienne . The search turned up two copies of Paul et Virginie and three of La Chaumière indienne . St. Pierre filed a suit against Prieur in the civil tribunal of Paris on February 27, 1793, charging him with piracy.^[30] The court declared that St. Pierre could not prove that the copies were unauthorized and required him to pay the court costs. St. Pierre, however, appealed the case on May

[27] Ibid., feuilles 182–183, "Procès-verbal de police, section de St. Geneviève, 23–24 octobre 1791."

[28] Ibid.

[29] Ibid., ser. AA, carton 148, feuilles 75–76, "Procès-verbal de police de la section de la Fontaine de Grenelle, 26 juin 1792."

[30] Douarche (ed.), Tribunaux civils 1:390–391.

25, and finally won a reversal.^[31] The court ordered Prieur to pay a fine "prescribed by the law," but it did not say what law. In fact, no law protecting literary property existed until July 19, 1793.

These cases suggest, however, that the principle of the property rights of living authors was upheld by both the police and the local courts in the absence of national legislation or regulation. They also reveal that in the absence of guild surveillance, pirating was easy and prosecution both difficult and costly. Proof was hard to produce, and by the time the courts ruled in favor of the author or publisher the financial losses were already great.

But what about works by authors no longer living? Could anyone lay claim to their works? What about heirs, or publishers? After all, the cultural capital of the publishing elites of the Paris Book Guild resided largely in royal privileges on texts whose authors could no longer claim them. It was Pierre Manuel, former administrator of the police book trade division, whose actions brought the issue to the courts in December 1791.^[32]

With the keys to the offices of the former lieutenant-general of police in his hands, between October 1789 and October 1790 Pierre Manuel found himself sitting on a literary gold mine that contained not only the reports of the former cultural police but also much of the literature and correspondence they had suppressed.^[33] Among these papers was a cache of love letters from Honoré-Gabriel Riqueti, comte de Mirabeau, to his mistress Sophie Monnier, written during his imprisonment at the Château de Vincennes from 1777 to 1780 and intercepted by the police. As Mirabeau rapidly distinguished himself as the most famous orator of the Revolution after 1789, the potential commercial value of the letters soared.

In October 1790, Manuel retired to the countryside to edit several works, including these letters. After Mirabeau's death on April 2, 1791, Manuel returned to Paris intending to publish the collection of letters in association with the Paris publisher Jean-Baptiste Garnery.^[34] Didot le

[31] Ibid., 471.

[32] The following discussion is based primarily on the dossier entitled "Affaire des lettres de Mirabeau," compiled in Lacroix (ed.), Actes de la Commune de Paris, 2d ser., 8:551–608 (app. II).

[33] Ibid., 569.

[34] Notices to this effect appeared in the Patriote français (July 23, 1791) and in the Journal de la cour et de la ville (November 20, 1791). See Lacroix (ed.), Actes de la Commune de Paris, 2d ser., 8:556–557.

jeune was contracted to print them.^[35] Notices announcing the imminent publication of the letters appeared in the Patriote français on July 23 and in the Journal de la cour et de la ville on November 20, 1791.^[36] The collaborators planned to capitalize on the timely interest of a nation now in mourning over the death of one of its greatest revolutionary heroes.

By December 19, 1791, Garnery had five thousand copies of the edition ready to be folded and bound in his warehouse.^[37] But that night, the commissioner of police of the section Henri IV paid a visit to both Garnery and Didot on behalf of the family and creditors of the late Mirabeau. Didot did not hesitate to declare that he was in the process of printing the edition, but, he said, the manuscript was with Garnery. They proceeded to Garnery's, where they confiscated the manuscript and nine printed sheets, leaving the five thousand copies under Garnery's oath that they would not be removed or sold.^[38]

Was Pierre Manuel guilty of theft? If so, from whom—the police, Mirabeau's family, his creditors, or Sophie Monnier's family?^[39] Or rather, was he guilty of violating state security, or the privacy of the family? Alternatively, were the police guilty of violating the freedom and immunities of domicile and the presses? Why had they conducted the raid late at night? Was the raid merely a plot instigated by Manuel's political opponents within the Commune of Paris? If the Mirabeau family was really concerned with their privacy, why had they waited until the edition was completed before attempting to have the work, now quite valuable, confiscated? Manuel's intention to publish the letters had been publicly announced six months prior to the raid. Why had they not protested then? Were they in fact guilty of theft from the editor, publisher, and printer? What claim did they have on letters addressed to Sophie Monnier (now dead), then confiscated by the police, and which Mirabeau had willed to no one?

The case became a cause célèbre of the Parisian press the following morning. Didot le jeune filed a complaint, probably written by Manuel, with the City of Paris, charging the police with violation of domicile, freedom of the press, and property rights of the business associates.^[40]

[35] Ibid., 552–553.

[36] Ibid., 556–557.

[37] Ibid., 553.

[38] Ibid.

[39] Sophie Monnier died in September 1789.

[40] Lacroix (ed.), Actes de la Commune de Paris, 2d ser., 8:554–555.

Certain to suffer a loss of 36,000 to 40,000 livres because of the raid, they were suing for damages. On December 28, 1791, the Sixth Criminal Tribunal of Paris found the police proceedings to have been legally conducted.^[41]

At bottom, however, the issue was not one of police proceedings but of the disputed property claims on Mirabeau's letters. The family and the commissioner of police charged:

The proposed publication of secret papers, that should have remained at the police office until they were restored to the representatives of the deceased M. Mirabeau, is a crime, not only against his representatives but against the police administration itself. . . . M. P. Manuel claims that his domicile and his "sacred presses" have been violated. . . . But the freedom of the press only means that you can print freely your own opinions, and not the work of another.^[42]

The conservative Journal de la cour et de la ville rallied to the defense of family rights and state security in a sarcastic tone: "This faithful administrator in 1790 had confiscated works sold for his own profit. This abuse of confidence, which would have sent him to the Grève in a well-policed country, instead has brought him the trust of a people inspired by Jacobinism."^[43] They proposed to "enrich the language with the word manueliser . . . to be applied to simple operations of the hand [la main ]."^[44] He was, they suggested, a mere thief.

But Manuel depicted himself as a champion of the freedom of the press. In a speech at the Jacobin Club he intoned: "The laboratory of the printer ought to be inviolable, because it is the sanctuary of thought."^[45] And the Révolutions de Paris disputed the police interpretation of press freedom: "If the freedom of the press consists only of the right to print one's 'own opinions,' then no man in the world would have the right to print Mirabeau's letters, and freedom of the press would be reduced to

[41] Ibid., 555.

[42] Rapport fait au Corps Municipal par le Département de la police relatif à M. Manuel [Paris, 1791]; cited in ibid., 567–570.

[43] Journal de la cour et de la ville, November 20, 1791; cited in Lacroix (ed.), Actes, 2d ser., 8:557–558.

[44] Journal de la cour et de la ville, December 26, 1791; cited in Lacroix (ed.), Actes, 2d ser., 8:565.

[45] The speech was printed in the Chronique de Paris, December 21, 1791; cited in Lacroix (ed.), Actes, 2d ser., 8:563.

very little."^[46] Thus, as the conservative press and the police defended the property claims of Mirabeau's heirs and the security of the state, Manuel and his allies in the revolutionary press succeeded in depicting Manuel as the champion of Mirabeau's memory and of the rights of citizens to immortalize a national hero in print.

Manuel based his claim to the manuscript on two grounds. First he asserted that the author of the letters had given him verbal permission to publish the letters before he had died.^[47] Had Manuel been able to offer any proof of that conversation, the case might have ended there. But he could not. He was therefore pushed to adopt a second line of reasoning that advanced an entirely new distinction in notions of literary property. Manuel argued that he did not own the text of Mirabeau's letters but, rather, the edition of those letters that he had prepared. Thus he wrote in his own defense:

I spent a year collecting them, deciphering them, and arranging them, for the honor of the man who is to open the French Pantheon. . . . O you who have wanted to steal from me a work that was inspired by love, glory, and the nation, I will put you at the foot of Mirabeau's statue like the slaves who were at the feet of Louis XIV.^[48]

The Révolutions de Paris rallied to Manuel's interpretation of literary property: "After the suppression of the book guild, what right do the police have to make nocturnal searches in printing shops. . . . These are letters . . . collected and edited by a third party after the death of the author . . . which, because they are the works of a man of genius, are public property."^[49] The Courrier des 83 départements also accused the police of daring to "withhold from posterity letters that attest to the immortality of Mirabeau."^[50] But Manuel summarized his position most eloquently when the case finally went to trial in May 1792: His "conduct in these circumstances was that of a citizen who researched in a public library in order to extract a manuscript, which, through additions, be-

[46] Révolutions de Paris, December 31, 1791–January 7, 1792; cited in Lacroix (ed.), Actes, 2d ser., 8:573.

[47] Chronique de Paris, December 28, 1791; cited in Lacroix (ed.), Actes, 2d ser., 8:572.

[48] Ibid.

[49] Révolutions de Paris, December 17–24, 1791; cited in Lacroix (ed.), Actes, 2d ser., 8:564.

[50] Courrier des 83 départements, January 19, 1792; cited in Lacroix (ed.), Actes, 2d ser., 8:574.

came his property."^[51] These arguments challenged not only the notion of exclusive privileges on literary works whose authors were dead, but also the idea of perpetual literary property, that is, of an author's absolute property rights.

Both the proponents of royal privileges and advocates of absolute property rights asserted that their claims lay in the possession of the text itself and that authors, and by extension their heirs, had the legal right to determine the fate of the text in perpetuity. Manuel and his allies in the revolutionary press departed radically from this position. They argued that after the death of an author the text belonged not to the family, or to any particular publisher, but to everyone—to the public. Further, they asserted that after the author's death, property claims could inhere only in the edition of the text, which became the editor's property through his labor, and not in the text itself, which could belong only to the public at large. In forwarding this position, they challenged the entire legal and economic basis of the largest sector of the publishing industry: that which engaged in the publication of texts whose authors were no longer living. The commercial fate of the entire literary inheritance of the Old Regime hung on this point of interpretation.

By 1792, new lines of legal reasoning were emerging from such street-level cultural politics. There was a connection, moreover, between the case of the Chaignieau brothers' Journal du soir and that of Manuel's edition of the Lettres . Despite their differences, both cases involved arguments for exclusive commercial claims to the published form, rather than the eternal content, of the works in question. The Chaignieau brothers owned their name and the title and format of their journal, the judge at the civil tribunal reasoned, but information that was available to all belonged freely to all to make use of as they would. Similarly, Manuel argued that upon an author's death his works fell from his hands into the public domain, whereupon they could be freely published by all. Only a particular edition of these works, distinguished by its notes, organization, format, and so forth, could be claimed as the exclusive commercial property of the editor and publisher. That is, the publisher owned the paratext, rather than the text itself.

The affair of Mirabeau's letters ended on a doubly ironic note. First, the publisher, Garnery, succeeded in getting a lower court to grant him

[51] Intérrogation de Pierre Manuel devant le premier tribunal criminel, 22 mai 1792 [Paris, 1792], cited in Lacroix (ed.), Actes, 2d ser., 8:593.

permission to sell the Lettres before the property dispute between Manuel and Mirabeau's heirs went to court.^[52] Then, when the case finally came before the First Provisional Criminal Tribunal of Paris in June 1792, the court dropped all criminal charges against Manuel for removing the manuscripts from the police archives and referred Mirabeau's mother to the civil courts. Mirabeau's mother, however, the last remaining plaintiff, withdrew her case.^[53]

In the Jacobin Club that evening Manuel's supporters claimed a victory, boasting that Mme de Mirabeau had withdrawn only because she was certain of defeat.^[54] But it was merely a victory de facto. There was still no law determining the legal status of the works of authors, living or dead. After 1789, the legal basis of publishing could be found only in the legal contingencies of discontinuous and often contradictory decisions, meted out by the municipal police and lower courts. Over ten years later, cases were still in the courts disputing whether editions published between 1789 and 1793 were to be settled on the basis of the règlements of 1777 or the legislation of 1793.^[55] From where would the new legal basis of publishing emerge and in what terms?

The First Legislative Initiative (1789–1791)

The first legislative attempt definitively to resolve the legal standing of claims on ideas appeared as a subsection of a comprehensive law on sedition and libel presented to the National Assembly by Emmanuel Sieyès on behalf of the Committee on the Constitution on January 20, 1790.^[56] The law was born out of a convergence of the commercial interests of book publishers and the political imperatives of the National Assembly.

Within a year of the collapse of the royal Administration of the Book Trade, Paris publishers who had in no way lamented the fall of the old

[52] Lacroix (ed.), Actes, 2d ser., 8:597.

[53] Ibid., 604.

[54] Ibid.

[55] See, for example, AN, ser. ADVIII, carton 7, "Consultation pour la citoyen Dugour, propriétaire de Cours d'agriculture, " [1803], 88.

[56] France, National Constituent Assembly, Committee on the Constitution, "Projet de loi contre les délits qui peuvent se commettre par la voie de l'impression et par la publication des écrits et des gravures, etc., présenté à l'assemblée nationale, le 20 janvier 1790, par le Comité de constitution," in Procès-verbal de l'Assemblée Nationale 11:1–24; also in Buchez and Roux (eds.), Histoire parlementaire de la Révolution française 4:273–288.

publishing world or the literary culture it had produced began to issue public calls for national legislation to protect their publications from literary pirates. Thus the Paris publisher François Royer, a cultural revolutionary of unimpeachable credentials, observed that while ephemeral and periodical literature poured from the presses of the capital, book publishing had ground to a virtual halt: Paris, he wrote, "will soon cease to be the capital or the center of literature."^[57] He lamented that "pirate editions are one of the principal reasons for the losses in the publishing business."^[58]

Moreover, as Royer pointed out, the problem of literary piracy was not exclusively municipal, or even national, in character. The specter of local piracy was driving Parisian publishers and printers into the less capital-intensive, and hence less risky, business of ephemeral and periodical literature. Thus authors of serious, or "long-winded," works, as he put it, could no longer find Parisian or even French publishers willing to take the risk of a book-length publishing venture: "Our neighbors are making the first profits from our immense book trade." Something, he insisted, had to be done to "destroy or gradually diminish piracy."^[59] It was neither the old publishing elites and their monopolies nor the literary civilization of the Old Regime that Royer sought to preserve, but rather the civilization of "the book" itself.

Such observations soon percolated upward into the discussions of the National Assembly. Publishers sent testimony that they were being driven to produce seditious and libelous material in order to stay afloat. In the session of January 12, 1790, for example, the deputy Charles de Lameth testified: "A Paris publisher has just reported to me that, unable to make any profit printing good books, he is being forced to go into the business of printing and selling libelous matter. . . . There are few

[57] François Royer, Avis intéressant aux gens de lettres et aux amateurs de bons livres et des bonnes éditions (n.p., [1789–1790]), AN, ser. F17, carton 1010d, doss. 4102. In a cover letter to the Commission on Public Instruction, dated thermidor, year II (July-August 1794), Royer states that he composed this letter "four years earlier." A report to the Committee on Public Instruction describes Royer in the following terms: "He gave proof of his patriotism well before the beginning of the Revolution by sacrificing part of his fortune to spread works attacking the abuses of the former government. This is proven by the fact that he was banned from his trade by order of Breteuil [the former keeper of the seals]"; see AN, ser. F17, carton 1010d, doss. 4102, Royer, Paris publisher, 30 thermidor, an II (August 17, 1794).

[58] Royer, Avis intéressant aux gens de lettres, AN, ser. F17, carton 1010d, doss. 4102.

[59] Ibid.

printers in Paris who can afford not to."^[60] Hoping to gain the ear of the National Assembly, publishers thus linked the economic issue of literary property and its protection to the political questions of sedition, libel, and authorial accountability.

The National Assembly itself was in the throes of a conservative backlash against the collapse of all regulation of the printed word. In the face of a flood of anonymous, libelous, and seditious pamphlet literature, the assembly heard repeated outcries like that found in an anonymous conservative pamphlet, Contre la multiplicité et le danger des brochures , that demanded laws requiring authors to sign published works and holding authors accountable for their publications.^[61] The economic complaints from publishers thus converged with political demands in the National Assembly, such as that of Jacques-André d'Emeri for "a law on the freedom of the press" to outlaw seditious publications, or of the deputy Louis-Marie, marquis d'Estourmel, for a law requiring authors, publishers, and printers to sign, and thus lay claim to, the works they produced as a means of holding them accountable.^[62] As a consequence of this agitation, the assembly moved that "the Committee on the Constitution will be charged to present forthwith a proposal for a law regulating the freedom of the press."^[63]

The Committee on the Constitution faced no small task. In order to determine the legal accountability of authors and publishers as well as their legal claims on the texts they wrote, edited, and published, the committee had to rework the legal definitions of the most basic elements of the literary civilization of the Old Regime: the author and the text. Although theories of authorial and literary property were widely circulated and debated throughout the eighteenth century, under the Old Regime there was, legally speaking, no "property" in ideas or in the texts that embodied them. Ideas were a gift from God, revealed through the author and made public by a printer-publisher. The king alone, as God's first representative on earth, had the power to determine, through his censors, what God's knowledge was, and also who would have the privilege to publish it. Having abolished privileges,

[60] Buchez and Roux (eds.), Histoire parlementaire de la Révolution française 4:270.

[61] Contre la multiplicité et le danger des brochures, par l'auteur de l'écrit intitulé: Je ne suis point de l'avis de tout le monde (n.p., 1789).

[62] Buchez and Roux (eds.), Histoire parlementaire de la Révolution française 4:271–272.

[63] Ibid., 272.

the revolutionary legislators now had to find a way to reground the legal definitions of accountability and exclusive commercial claims within the framework of a constitution based on natural rights rather than divine sanction. In order to do this they would have to replace the doctrine of revelation, that had provided the epistemological basis for the Old Regime system of privileges. They would, in other words, have to legislate Enlightenment epistemology into law. Fortunately, they were not working without precedents.

The dispute between the Paris Book Guild and the royal Administration of the Book Trade that led to the formulation of the royal decrees of 1777 had drawn key Enlightenment figures directly into the debate on literary property. Consequently, the mid-eighteenth century witnessed several systematic efforts to reground the discussion of the origins and nature of claims on knowledge in terms of Enlightenment epistemology. Two distinct positions emerged within enlightened circles.

In 1763, Denis Diderot was hired by AndréFrançois LeBreton, the chief officer of the Paris Book Guild and publisher of the Encyclopédie, to write a treatise to be presented to the new director of the royal Administration of the Book Trade, Antoine-Raymond-Jean-Gaulbert-Gabriel de Sartine, defending the guild's view of their privileges as a form of property. In his "Lettre historique et politique adressée à un magistrat sur le commerce de la librairie," Diderot argued that ideas are the most inviolable form of property because they spring directly from the individual mind; they are a creation of the mind, indeed the very substance of the mind, the means by which it constitutes itself. Thus he writes:

What form of wealth could belong to a man, if not a work of the mind, . . . if not his own thoughts, . . . the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it?^[64]

Diderot's argument was radically individualistic. Although his epistemological stance, and his ideas on aesthetics, are rife with complexities, in

[64] Denis Diderot, "Lettre historique et politique . . . sur le commerce de la librairie" (1763), in Oeuvres complètes, ed. Roger Lewinter (Paris: Club Français du Livre, 1970), 5:331.

this 1763 Lettre Diderot depicted ideas as emerging sui generis from the mind, rather than taking the more Lockean line of argument that they were appropriated through the labor of combining sensations that emanate from nature. Diderot admitted that property in land is merely a social claim, based on appropriation through labor and thus susceptible to social mediation. But ideas, originating in the individual mind, original to it and not acquired through appropriation or labor, are, rather, the most natural and most inviolable form of property.^[65]

Diderot therefore argued that privileges for the texts of living authors should be recognized as legal confirmations of a perpetual property right. Similarly, works whose private lineage could no longer be traced should also be considered the perpetual property of the privilege holder, justified by the theory of "right of first use." In contrast, then, to his general condemnation of commercial privileges, Diderot made an exception for those conferred on texts, arguing that the protection of exclusive and inheritable property claims, rather than free market competition, was the best guarantee of the progress of knowledge and the spread of enlightenment.^[66]

The legal implications of Diderot's line of reasoning were cogently formulated by the lawyer-journalist Simon-Nicolas-Henri Linguet in his Mémoire sur les propriétés et privilèges exclusifs de la librairie of 1774:

What is a literary privilege? It is a recognition made by public authority of the property of the author or of those to whom he has ceded it. It is the literary equivalent of a notarial act which . . . assures the rights of

[65] For a more extensive treatment of the complex subject of Diderot's epistemology, its relation to the development of French aesthetic theory, and the idea of authorial originality in particular, see Jacques Chouillet, La Formation des idées esthétiques de Diderot (Paris: Armand Colin, 1973), esp. 403–417; Jacques Chouillet, L'Esthétique des lumières (Paris: PUF, 1974), 73–82, 120–125; and Roland Mortier, L'Originalité. Une Nouvelle Catégorie esthétique au siècle des lumières (Geneva: Droz, 1982), 153–163. The Renaissance beginnings of the idea of authorial originality are treated extensively in David Quint, Origin and Originality in Renaissance Literature (New Haven: Yale University Press, 1983). The classic work on the epistemology of the French Enlightenment is Ernst Cassirer, The Philosophy of the Enlightenment (Princeton: Princeton University Press, 1951). For a discussion of the complexities of Diderot's epistemological stance in relation to both Locke and Descartes, see Robert Darnton, "Philosophers Trim the Tree of Knowledge: The Epistemological Strategy of the Encyclopédie, " in Great Cat Massacre 191–214. Both Martha Woodmansee and Mark Rose note the contribution of the idea of authorial originality to arguments for authors' property rights in Germany and England; see Woodmansee, "Genius and the Copyright," 427; and Rose, "Author as Proprietor," 56.

[66] Diderot, "Lettre historique et politique," 349.

citizens. . . . The privilege is a seal that guarantees peaceful enjoyment; but it is not the source of that enjoyment. . . . A privilege grants nothing to the author, it only insures protection.^[67]

These arguments, both philosophical and legal, advanced by two key figures of the French Enlightenment, are consistent with—indeed, they would seem further to confirm—the recent assertions of Michel Foucault and others that the modern author was first conceived as individual property owner.

There was, however, a second Enlightenment position on the issue of literary privileges and property, articulated in France by the marquis de Condorcet in 1776, on the eve of the new royal regulations of the book trade, in a pamphlet entitled Fragments sur la liberté de la presse . Although the original context of the composition of this pamphlet remains obscure, it undoubtedly formed part of Condorcet's effort to assist the French Minister of Finance, Anne-Robert-Jacques Turgot, in his attempt to liberalize French commerce by suppressing the monopolies of the royal guilds.^[68] The pamphlet was clearly intended to present a complete revision of the current royal code organizing and regulating the book trade.^[69] Like all Old Regime codes on the book trade, Condorcet's pamphlet treats the issues of censorship, liability, commercial regulation, protection, and policing together, as interconnected elements of a single regulatory vision. The lion's share of the document was devoted to a refutation of prepublication censorship and the commercial monopolies

[67] Simon-Nicolas-Henri Linguet, Mémoire sur les propriétés et privilèges exclusifs de la librairie: Présenté en 1774 (n.p., n.d.); cited in Renouard, Traité des droits d'auteur, 175. For further discussion of Linguet's views on the organization of the book trade, see his Mémoire signifié pour le sieur Luneau de Boisgermain, défendeur, contre les syndic et adjoints des libraires et imprimeurs de Paris, demandeurs (Paris, 1769).

[68] Elisabeth Badinter and Robert Badinter, Condorcet. Un Intellectuel en politique (Paris: Fayard, 1988), 99–142.

[69] I have been unable to find any earlier reference to the pamphlet Fragments sur la liberté de la presse than the edition of Marie-Jean-Antoine-Nicolas Caritat, marquis de Condorcet, in Oeuvres complètes, ed. M. F. Arago (Paris: Didot, 1847), 11:253–314. Arago provides the date 1776, but without explanation. The text is mentioned in neither Keith Michael Baker's Condorcet: From Natural Philosophy to Social Mathematics (Chicago: University of Chicago Press, 1975) nor the most recent biography by Elisabeth and Robert Badinter, Condorcet . Although Nina Ratner Gelbart notes that Condorcet contributed a series of articles, including one on the freedom of the press, to the Journal des dames in the latter half of 1775, the Fragments are clearly too extensive to have been intended only for publication as a journal article; see Gelbart, Feminine and Opposition Journalism in Old Regime France: "Le Journal des Dames " (Berkeley and Los Angeles: University of California Press, 1987), 229.

of the book guild. He proposed replacing these regulations with liberal laws on sedition, libel, and freedom of commerce in the printing, publishing, and book-selling trades. Under such laws, the "author of the publication," as distinct from the author of the work, would be held legally accountable and liable for its public consequences.^[70]

The issue of accountability led Condorcet logically to a sustained discussion of the problem of authorial claims and literary privileges as well. Drawing on arguments formulated in sensationalist epistemology, Condorcet attacked both the royal theory of literary privilege and the theories of authorial property rights advanced by Diderot and the lawyers for the Paris Book Guild.^[71] "There can," he wrote, "be no relationship between property in ideas and that in a field, which can serve only one man. [Literary property] is not a property derived from the natural order and defended by social force, it is a property founded in society itself. It is not a true right, it is a privilege."^[72] Unlike a piece of land, an idea can be discovered, inhabited, and used by an infinite number of people at the same time. Ideas are not the creation of individual minds, be it through revelation, appropriation, or cognition. Rather, they inhere in nature and hence are equally and simultaneously accessible through the senses to all. They can belong to no single individual.

Furthermore, Condorcet rejected any social value to individual claims on ideas. Since true knowledge was objective, particular, individual claims on ideas could consecrate and protect nothing more than the style, the individual form, rather than the substance, of an idea. Far from viewing originality as the hallmark of the modern bourgeois author, Condorcet condemned particularities of style as attributes of aristocratic culture. Any privileges that might be derived from these attributes, he argued, should be abolished; style distorts nature's truths, and thus to privilege it encouraged the production of pleasant fictions and personal gain rather than the pursuit of useful knowledge and the public good: "It is thus uniquely for expressions, for phrases, that privileges exist. It is not for the substance of things [les choses ], for ideas; it is for words [les mots ], for the name of the author." Further, legal privileges

[70] Condorcet, Fragments, in Oeuvres complètes 11:294.

[71] For the definitive treatment of the intellectual origins, character, and development of Condorcet's epistemology, see Baker, Condorcet .

[72] Condorcet, Fragments, in Oeuvres complètes 11:308–311.

derived from individual style inhibit the spread of ideas by restricting access to them. "Privileges of this sort, like all others, are inconveniences that diminish activity by concentrating it in a small number of hands. . . . They are neither necessary, nor useful, and as we have seen, they are unjust."^[73]

Condorcet argued against individual claims on knowledge as either property or privilege. He imagined an authorless world of free manipulation and circulation of information and ideas. These observations led Condorcet to conclude that a commercial publishing industry that sold ideas rather than authors, substance rather than style, could be organized according to the principles of periodical publishing as opposed to book publishing, as with the proceedings of the Académie des Sciences or the Encyclopédie: through reader subscriptions to a genre of knowledge rather than through the marketing of unique works distinguished by the author's signature.^[74]

The debate between Condorcet and Diderot played out a tension inherent in Enlightenment epistemology (found in John Locke's Essay on Human Understanding itself) concerning the origins of ideas and hence the kinds of claims that could be made on them. Did knowledge inhere in the world or in the mind? To what extent was it discovered and to what extent invented? Condorcet argued that knowledge was objective, found in nature, and thus fundamentally social in character, belonging to all. Diderot viewed ideas as inherently subjective and individual, originating in the individual mind and thus constituting the most inviolable form of private property.

The revolutionary legislators then, did not have at their disposal simply one modern position on the nature of the author and his relation to the text (that is, the property-bearing individual); rather, they confronted a modern tension between Diderot's conception of the author as the original creator, and hence inviolable proprietor, of his works, on the one hand, and Condorcet's depiction of the ideal author as a passive midwife to the disclosure of objective knowledge, on the other.^[75] How

[73] Ibid.

[74] Ibid. Interestingly, Woodmansee finds a similar line of argumentation advanced in the German context, although she does not explore its implications; see "Genius and the Copyright," 440.

[75] While it is beyond the scope of this inquiry, it could be argued that despite the conclusions of Woodmansee and Rose, their evidence suggests that a similar tension was present in the English and German contexts as well. Although each of these authors clearly establishes the presence of arguments for unlimited property in ideas in eighteenth-century England and Germany, in fact these arguments did not go uncontested, and ultimately, the laws that ensued from the debates in these countries did not reflect a victory for unlimited property rights. See Woodmansee, "Genius and the Copyright"; and Rose, "Author as Proprietor."

was the Committee on the Constitution to resolve this tension? Would it legally consecrate Diderot's notion of the author as the inviolable proprietor of his text, as Michel Foucault, among others, has recently suggested it did? Or would it prefer Condorcet's view of ideas and the texts that embody them as a cultural commons, best cultivated freely and collectively by all?

On January 20, 1790, Sieyès presented a proposal for a law on sedition, libel, and literary property to the National Assembly on behalf of the Committee on the Constitution.^[76] Initiation of this proposal was part of an effort by moderates in Paris and the assembly to restore order and check the radicalization of the Revolution in the wake of the popular revolt that swept the cities and countryside after the fall of the Bastille.^[77] By the end of 1789, Sieyès was meeting with the group of moderates who had split from the Jacobin Club, including Condorcet, Lafayette, the duc de La Rochefoucauld-Liancourt, and Dupont de Nemours. In early January 1790 these men officially founded the Society of 1789.^[78] There can be little doubt that this group, and in particular Condorcet, played a crucial role in drafting the National Assembly's first legislative effort to regulate the printed word.

Significantly, the proposal was publicly attributed to Condorcet as well as Sieyès.^[79] There is good evidence to support this attribution. In both

[76] France, National Constituent Assembly, Committee on the Constitution, "Projet de loi," in Procès-verbal de l'Assemblée Nationale 11:1–24; also in Buchez and Roux (eds.), Histoire parlementaire de la Révolution française 4:273–288.

[77] On the political reaction of the propertied classes to the popular revolution, see Georges Michon, Essai sur l'histoire du parti feuillant. Adrien Duport (Paris: Payot, 1924). For the connection of cultural elites to this conservative backlash of 1790–1791, and especially of writers and publishers, see Darnton, Business of Enlightenment, 505.

[78] See Baker, Condorcet, 272.

[79] See François Lanthenas, De la liberté indéfinie de la presse (Paris: Visse, 1791), 6: "A proposal from the Committe on the Constitution of the National Assembly to regulate the press, attributed to MM. Condorcet and Sieyès, appeared a few months after this glorious Revolution."

form and content the proposal presented by Sieyès in 1790 bears a striking resemblance to Condorcet's Fragments sur la liberté de la presse of 1776.^[80] Indeed, close comparison of the two texts suggests that the Sieyès document was drafted directly from Condorcet's pamphlet. The two share virtually the same organizational structure, and the substantive parallels between the two texts are equally striking. Ironically, then, Condorcet in 1790 revived a pamphlet he had originally circulated as a radical indictment of the inquisitorial institutions of the Old Regime, now to serve as a conservative check on the flood of ideas unleashed by the collapse of those very institutions by proposing a law that would hold authors, publishers, and printers legally accountable for their publications.

This conservative turn is further disclosed in the one substantive change made to Condorcet's earlier pamphlet in the new proposal: the section on privileges and literary property. In 1776 Condorcet had argued that ideas were social rather than individual in origin and as a consequence they could not be considered a form of private property to be protected as a natural right. He had also argued that privileges, as private claims on texts, inhibited rather than aided the spread of enlightenment. By 1790, Condorcet had evidently reconsidered his position in light of recent events. Now, instead of denouncing literary property as a privilege, Condorcet and Sieyès claimed that "the progress of enlightenment, and consequently the public good, united with notions of distributive justice to necessitate that the property of a work should be guaranteed to the author by law."^[81] They went on to specify, however, that this property right was to be limited to the author's life plus ten years, the length of time deemed necessary to complete and sell an edition. The Sieyès proposal thus consecrated the notion of property in ideas, but in a restricted form. The notion of limiting authors' property rights reflected the continuing influence of Condorcet's original concern that the "progress of enlightenment" depended on public access rather than private claims to ideas.

Article 21 of the proposed law concluded the section on literary property with an effort to smooth the transition from the old regime of privileges to the new regime of property: "Publishers or others who at present have acquired for any work a privilege for a fixed term will

[80] Condorcet, Fragments, in Oeuvres complètes 11:253–314; and France, National Constituent Assembly, Committee on the Constitution, "Projet de loi."

[81] Buchez and Roux (eds.), Histoire parlementaire de la Révolution française 4:283.

continue to enjoy this privilege for its entire duration."^[82] In direct contrast to Condorcet's original position, then, the Sieyès proposal argued that the spread of enlightenment was best achieved not by liberating ideas from particular claims entirely, but by ensuring the viability of the authored book as a legally defined and protected commodity.

The main concern of the debates on freedom of the press in the assembly, and of the Sieyès proposal itself, was to stem the flood of libelous and seditious pamphlets that poured forth after the collapse of the Old Regime systems of censorship and surveillance. The proposal was primarily an effort to determine the limits of what could be said in print and to establish the legal accountability of authors, printers, and booksellers for what they made public. Consequently, the repressive aspects of the proposal have received the most attention from historians.^[83] But the assembly, the Committee on the Constitution, and Sieyès and Condorcet had all taken Lameth's comments about the state of the book trade seriously. The connection between the crisis in book publishing and the boom in periodical and ephemeral literature was not lost on them. If the commercial insecurity of book publishing was driving printers and publishers into ephemeral printed matter, then the flood of ephemeral matter—that is, seditious and libelous pamphlets—might abate if book publishing could be restored to a commercially secure and profitable footing. Only in the light of these political concerns can we understand why the National Assembly's first legislative effort to define and protect literary property emerged within a law on sedition and libel, and why Condorcet's original position had been reversed.

The first revolutionary attempt to give legal recognition to the author's claim on the text, then, was not a granting of freedom to the author, but the imposition of accountability and responsibility. Politically, it formed part of a conservative pro-order move, a police measure. The law made the author legally responsible for the text by defining it as his property.

Nor were the commercial motivations behind the law concerned with enhancing the power of the author over the text. In comparison with the royal decrees of 1777, authors were being given a rather poor deal by the revolutionary legislators. The proposal rejected the Crown's grant of authorial claims in perpetuity. Instead it argued for limiting such claims

[82] Ibid., 4:284.

[83] See, for example, Söderhjelm, Régime de la presse 1:118–127; and Bellanger (ed.), Histoire générale de la presse française 1:432.

to ten years after the author's death in the interest of the "progress of enlightenment" and "the public good." Thus, while declaring that texts are authors' property, the law in fact severely diminished the author's power to determine the fate of his texts, and put an end to the perpetual private claims—privileges—granted by the Crown on the literary inheritance of the nation. True to the spirit of Condorcet's original pamphlet, he and Sieyès wanted to free those texts for the use of all citizens. This was no mere theoretical matter. By advancing the notion of "limited property," the two men were proposing that the entire literary inheritance of the nation pour forth from the hands of private publishers and the heirs of authors into the public domain: Rousseau and Voltaire, as well as Racine and Molière, had all been dead for well over ten years. They would now be freely publishable, in any form, by all citizens.

While the proposal rendered publishers, authors, and heirs equal before the law, it failed to address or resolve the philosophical issue at the heart of the late-eighteenth-century debate. If property rights were inviolable natural rights, as the Declaration of the Rights of Man and the Citizen had recently proclaimed, what power did the state have to limit them or regulate their distribution? If claims on property were instead socially constituted, were they not then just privileges by another name? The proposed law appeared incoherent and arbitrary: on the one hand it recognized a property right; on the other, by defining that right as noninheritable, it advanced an instrumentalist notion of the public good that flew in the face of natural rights theory and explicitly undermined the actual power of individuals to exercise their constitutionally guaranteed right. It was an attempt at a compromise between two epistemological stances, between individual and collective claims on ideas.

The Sieyès proposal of 1790 broke on the shoals of its own contradictions. While applauded upon presentation in the assembly, the proposal suffered such virulent criticism from so many quarters that it was never even brought to a vote. Much of this criticism focused on the issues of libel and sedition, in particular on the articles that proposed authors and printers be held accountable for the seditious and criminal actions that their works could be construed as intending to incite.^[84] Radicals were quick to detect the repressive and conservative character of the entire proposal (plate 4). The militant journalist Elysée Loustallot

[84] For an extensive discussion of the critical response of journalists and pamphleteers to the clauses on sedition and libel, see Söderhjelm, Régime de la presse 1:123–128.

Plate 4. 
Anonymous engraving attacking the Sieyès proposal on the press 
and literary property of January 20, 1790. Sieyès is lewdly depict-
ed as "violating the liberty of the press." Bibliothèque Nationale, 
Cabinet des Estampes.

decried any law that limited the exercise of a natural right: "The patriotic public does not ask for a law granting freedom of the press. . . . The only true limits of freedom are those in the nature of things themselves."^[85] There should be no civil laws, according to Loustallot, limiting or regulating what could be said in print—even if what was said seemed libelous or seditious to the men in power.

Apart from sedition and libel, the measure was also criticized for its treatment of the issues of literary privileges and property. This section was attacked from three different positions during 1790–1791. The first line of attack came from pamphleteers who took up Condorcet's position of 1776 specifically to denounce any measure that would reimpose private claims on ideas. Thus the comte de Kéralio attacked the very notion of property in ideas as a threat to freedom of thought and, consequently, to the progress of enlightenment:

[The National Assembly] has negated all privileges as destroyers of liberty. . . . And as liberty cannot be maintained without enlightenment and knowledge, a wise legislator will guard himself from conserving even the smallest of privileges, which, by limiting the freedom of the press, restrain freedom of thought and inhibit the expansion of human knowledge.^[86]

He viewed the Sieyès proposal as an unprincipled and misguided effort to translate a regime of privilege into a rhetoric of property. According to Kéralio, the cause of "authors' property rights" was no more than a political smokescreen, serving to conceal the commercial interests of publishers.^[87] The publishing world offered ample evidence to support these charges. Like Condorcet in 1776, Kéralio believed knowledge should be freely accessible to all—even to print, publish, and sell.

A second line of attack on the Sieyès proposal was advanced by the old corporate monopolists of the Paris Book Guild and the royally privileged theater directors. These men, reviving and deploying Diderot's arguments in a campaign to have their privileges recognized as unlimited property rights, mounted a lobbying effort to kill the proposal in committee. The playwright François de LaHarpe protested to the National Assembly on August 24, 1790: "Your decrees have pronounced the abolition of all privileges. Having enjoyed such privileges for over one hundred years, the directors of the Comédie Française . . . claim that all

[85] Elysée Loustallot, "De la liberté de la presse," Révolutions de Paris, no. 29, January 23–30, 1790, 17–18; emphasis in the original.

[86] Kéralio, De la liberté, 51–53.

[87] Ibid.

the plays that they have been given the exclusive privilege to perform since the establishment of their theater are now their eternal and inviolable property."^[88] A few weeks later, on September 6, the officers of the Paris Book Guild joined in this corporatist reaction and presented a mémoire to the assembly in which they proposed to "put before the eyes of the Committee on the Constitution the Code [of 1723] for the Publishing and Printing Trades edited by the great d'Aguesseau."^[89] It was this code that had provided the basis for arguments that publishers' privileges were automatically and perpetually renewable and hence actually confirmed an anterior property right.^[90] How could a revolution that had declared property a natural and inalienable right now take steps to limit that right?

These arguments were forcefully reiterated in 1791 as the forces of cultural reaction mobilized with greater intensity to advance their corporatistic cause under the guise of defending "authors' rights." The Committees on Agriculture and Commerce reported on a letter from the keeper of the seals in which he testified that the lack of a law guaranteeing literary property was ruining French letters:

It is impossible to doubt that the vigilant and active protection that the government has always accorded the property of authors and those to whom they cede their works was one of the principal reasons that literature has flourished in France more than with any other modern people. There can be no doubt that pirates of our best books will incessantly inundate the kingdom, ruin proprietors, intimidate those who are in a position to purchase manuscripts, and exhaust, in a word, the most precious branch of our national industry.^[91]

The keeper of the seals recommended that the Committees on the Constitution, on Agriculture and Commerce, and on Investigations meet together to resolve this question. The Committees on Agriculture and Commerce took the initiative to convene all three "to propose a law on these issues, which are crucial to the book trade and to literature."^[92]

[88] François de LaHarpe, Adresse des auteurs dramatiques à l'Assemblée Nationale, prononcé par M. de LaHarpe dans la séance du mardi soir 24 août ([Paris, 1790]), 8.

[89] Fernand Gerbaux and Charles Schmidt, eds., Procès-verbal des Comités d'Agriculture et de Commerce (Paris: Imprimerie Nationale, 1906), 1:518–519 (124th session, September 6, 1790).

[90] Birn, "Profits in Ideas," 139.

[91] Gerbaux and Schmidt (eds.), Procès-verbal 1:756.

[92] AN, ser. DXXIX bis, carton 16, doss. 182, doc. 10, Letter from the Committees on Agriculture and Commerce to the Committee on Investigations, January 13, 1791.

The formal abolition of the Paris Book Guild in March 1791 dealt a severe blow to the corporate lobby.^[93] But individual publishers of the old guild, as well as public officials, continued to agitate for the protection of literary property. On May 22, the minister of justice (formerly the keeper of the seals) wrote to the Committees on Agriculture and Commerce urging action.^[94] The following day committee member François Hell received a letter from

MM. Jean-Marie Bruysset and Pierre-Marie Bruysset and son, printers of Lyon, requesting a law that will assure authors the property in their works and prohibit pirating. . . . They state that this law is urgently needed, as at this moment someone has pirated a fifteen-volume edition of Valmont's Dictionnaire that appeared only fifteen days ago, which cost 500,000 livres to produce, and the loss of which would reduce the author and printers to the state of beggars.^[95]

The Committees on Agriculture and Commerce and on the Constitution resolved as a consequence of this report to charge Hell with the drafting of a new law.

The Hell projet du loi , published by order of the National Assembly sometime in the summer of 1791, gave legislative embodiment to the principles long advocated by the Paris Book Guild and Diderot. Thus Hell announced to the National Assembly:

The first of all properties is that of thought; it is independent, it is anterior to all laws. . . . All other forms of property are nothing but conventions, social concessions; those of the mind and of genius are gifts from nature, they ought to be beyond any restriction. . . . The Old Regime named the act by which one guaranteed literary property a "literary privilege." A privilege! What a gross abuse of words. You have destroyed the word . . . now you can consecrate the thing.^[96]

Nothing could have been further from the views presented a year earlier by Sieyès and Condorcet. The specific clauses of the Hell proposal upheld all former privileges on the entire literary inheritance of France, which had been accrued by publishers in consequence of the Code of

[93] France, National Legislative Assembly, Decree of March 17, 1791, in Collection générale des décrets rendus par l'Assemblée Nationale (Paris: Baudouin, 1791), 52–62.

[94] Gerbaux and Schmidt (eds.), Procès-verbal 2:256.

[95] Ibid.

[96] Hell, Rapport fait à l'Assemblée Nationale, 5–8, in AN, ser. ADVIII, carton 16. I have been unable to determine if this proposal was actually presented on the floor of the National Assembly.

1723, as titles of property. Literary property was to be inheritable and transmissible in perpetuity like any other form of property. The law, moreover, was to be printed at the end of every publication, "replacing the text of the former privilege."^[97] This was precisely the interpretation that the Comédie Française and the Paris Book Guild had long hoped to advance.

A third line of attack on the Sieyès proposal came from within the camp of those who sympathized with the principle of a limited property right. Three days after the proposal was presented to the assembly, Charles-Joseph Panckoucke published the first of two articles in the Mercure de France exposing his own views on how the crisis in book publishing could be resolved.^[98] Like Sieyès and Condorcet, he expressed ideological concerns about unlimited exclusive claims on ideas: "An author or a publisher who would be the eternal proprietors of their books, would necessarily be monopolists."^[99] Panckoucke did not believe in monopolies in ideas; he shared Condorcet's concern that perpetual monopolies on texts left the fate of public enlightenment and the spread of enlightened ideas totally in the hands of private individuals. Limits on private claims, he insisted, were justified by public interest.

He felt, however, that the limits on private claims proposed by Sieyès and Condorcet were too severe. Instead, he suggested that France adopt the model put into place by the English in 1774:

Every author enjoys at first a fourteen-year claim on his work. If he survives that term, he obtains another fourteen years of enjoyment of his claim. At the expiration of that term, the book belongs to the public. The [English] nation has thought, with reason, that this is the proper means of reconciling private interest with the public good, and that as good books contribute to its enlightenment . . . it is just to favor its writers with these dispositions.^[100]

As a publisher of multiauthored, multivolume works, Panckoucke sought to extend the legal definition of the time deemed necessary to complete an edition from ten to fourteen years. Nonetheless, the arguments of even this large commercial publisher rested not on the invio-

[97] Ibid., 15.

[98] Charles-Joseph Panckoucke, "Sur les chambres syndicales," Mercure de France, January 23, 1790; and "Sur l'état actuel de l'imprimerie," ibid., March 6, 1790.

[99] Panckoucke, "Sur l'état actuel de l'imprimerie," 37–38.

[100] Ibid. There is much more to be said about the role of English copyright law in the French revolutionary debates. While Panckoucke here invokes it, the Hell proposal, for example, explicitly refuted arguments in favor of adopting the English model; see Rapport fait à l'Assemblée Nationale .

lability of property rights but on the ideal of an enlightened nation. Writers merited special favor, not as property holders, but because they were the source of the "good books" through which the public received enlightenment. Once they had received their compensation, the public good dictated that these texts belong to all.

By 1791, then, the mid-century debate between Diderot and Condorcet had resurfaced within the Revolution itself. Caught between their interest in liberating public circulation of ideas from the inquisitorial and monopolistic institutions of the Old Regime and their fear of the political consequences of the cultural anarchy that followed the "freeing of the press," Condorcet and Sieyès had advanced the notion of a "limited property right" in an attempt to effect a legislative compromise between private interests and public enlightenment. But cultural libertarians like Kéralio took up Condorcet's arguments of 1776 and protested violently against any private claims on ideas, whereas the Paris Book Guild and directors of the Comédie Française mobilized a corporate lobby to argue for the inviolability of authors' property rights. Even men like Panckoucke, who agreed with the basic premise of a limited right, found the particular stipulations of the proposal unacceptable. The Sieyès proposal of 1790 foundered in a sea of criticism. There was to be no law regulating claims on ideas until 1793.

The Second Initiative (1791–1793)

The revolutionary law of July 19, 1793, which defined the legal limits and powers of the author and laid the foundation for republican publishing, has served as the basis for French publishing to this date. It is still the first standard citation in French law school textbooks on literary property.^[101] In order to understand how a law was finally passed and why it took the form it did, critical changes in the revolutionary context between 1791 and 1793 must be considered.

In 1791 there was a crucial shift in the balance of forces for and against the notion of a limited property right. The suppression of the Paris Book Guild in March 1791 had dealt a severe blow to the proproperty corporate lobby. A distinct law on libel and sedition was incorporated into the constitution in September, leaving the property question to be resolved independently of the issue of censorship. This

[101] See, for example, Henri Desbois, Le Droit d'auteur en France, 3d ed. (Paris: Dalloz, 1978), 416; or Claude Colombet, Propriété littéraire et artistique (Paris: Dalloz, 1980), 6.

separation significantly depoliticized the property issue. The Hell proposal, which circulated for public discussion in those uncertain months of the summer of 1791, appears never to have reached the floor of the assembly for a vote. By autumn it had become clear that the advocates of perpetual private property in ideas had wasted their energies by courting the wrong legislative committee.

The transfer of power from the Constituent to the Legislative Assembly on October 1, 1791, was accompanied by a structural reorganization of the assembly's committees. Jurisdiction over the question of literary property now passed from the Committees on Agriculture and Commerce to the newly formed Committee on Public Instruction, headed by Condorcet.^[102] He was joined by, among others, Sieyès.^[103] Thus the question of literary claims, raised first in 1790 as part of a repressive police measure and then as a commercial interest, was, by virtue of changing circumstances, recontextualized as a question of education and the encouragement of knowledge.

By 1791, moreover, the results of a second wave of agitation for authors' rights reached legislative formulation. This agitation came not from corporate interests, but rather from playwrights protesting the monopoly of the Comédie Française on dramatic works. Since the founding of the Comédie Française in 1680, only theater directors could legally receive privileges to present and publish theatrical works.^[104] This monopoly had not been affected by the royal recognition in 1777 of authors' literary privileges. The agitation of "unprivileged" playwrights was therefore crucial in disassociating the cause of authors' rights from a rearguard defense of Old Regime privileges and realigning it politically within the prorevolutionary attack on privileged interests.

Playwrights began their agitation in 1790 with the creation of a committee led by Pierre-Augustin Caron de Beaumarchais to assert the rights of dramatic authors to their own works and to call for abolition of the privileges of the Comédie Française. A protest petition bearing the signatures of twenty-one writers was presented to the National Assembly

[102] M.-J. Guillaume, ed., Procès-verbaux du Comité d'Instruction Publique de la Convention Nationale (Paris: Imprimerie Nationale, 1891), 1:iv.

[103] Ibid., iv–xiii. Although the exact composition of the committee was constantly changing, Condorcet and Sieyès were continuous and influential presences.

[104] See Renouard, Traité des droits d'auteur, 211–225. See also Michele Marie Root-Bernstein, Boulevard Theater and Revolution in Eighteenth-Century Paris (Ann Arbor: UMI Research Press, 1984).

by LaHarpe on August 24, 1790. This petition was essentially an effort to reintroduce into the assembly the clauses of the Sieyès proposal that had pertained to the theater and to property in dramatic works. Anyone, the signers argued, should be free to open a theater. The works of authors dead more than five years should be considered public property, but no one should be allowed to represent or publish the works of living playwrights without their written consent.^[105] The petition was sent to the Committee on the Constitution.^[106]

LaHarpe's plea did not fall on deaf ears. In fact, supporters of the Comédie Française charged that the petition drive had been instigated by a key member of the very committee to which it was submitted: "It's chez M. de Mirabeau . . . that this petition was cooked up."^[107] Whether true or not, there can be little doubt that Honoré-Gabriel de Mirabeau helped to advance the cause of the petitioners.^[108] Less than a month later, on January 13, 1791, René-Guy LeChapelier, for the Committee on the Constitution, presented to the National Assembly a projet de loi drafted by Mirabeau on behalf of the petitioners.^[109]

The Mirabeau proposal was essentially a redrafting of the articles of the Sieyès proposal pertaining to literary property, but this time focused on theater authors alone. In contrast to the earlier proposal, however, the preamble of the new projet stressed not authors' rights, but the rights of the public. Thus LeChapelier argued:

In soliciting for authors . . . exclusive property rights during their lifetime and five years after their death, authors acknowledge, even invoke, the rights of the public, and they do not hesitate to swear that after a period of five years the author's works are public property. . . . The public ought to have the property of great works. . . . But despotism invaded that communal property and carved it up into exclusive privileges.^[110]

The authors represented themselves as servants of the public good, of its enlightenment, in opposition to the private interests of publishers and

[105] LaHarpe, Adresse des auteurs dramatiques, 37–39.

[106] Ibid., 44.

[107] Article by M. de Charnois in Le Modérateur, cited by LaHarpe, ibid., 45.

[108] Renouard, Traité des droits d'auteur, 305–306.

[109] For the attribution of the projet to Mirabeau, see the letter written to the National Assembly on behalf of the authors of dramatic works on September 18, 1792, in Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:52.

[110] René-Guy LeChapelier, Rapport fait par M. Le Chapelier au nom du Comité de Constitution sur la pétition des auteurs dramatiques, 13 janvier 1791 (Paris: Imprimerie Nationale, 1791), 4–6, in AN, ser. ADVIII, carton 16.

theater directors. Hence the authors themselves rejected the Diderotist argument for unlimited and absolute claims on their texts and, reviving the compromise position of Sieyès and Condorcet, presented themselves as contributors to "public property" and guardians of the public claim to the nation's cultural commons. The author was now depicted as a hero of public enlightenment, rather than as a selfish property owner. Unlike the Sieyès proposal, that of LeChapelier passed into law on January 13, 1791, abolishing all past privileges and recognizing the playwright's claims as exclusive property rights until five years after the author's death, at which point they would become part of the public domain.

This law, however, covered only the work of authors in the theater. The initiative to define the legal status of all authors therefore passed to the newly formed Committee on Public Instruction. Ironically, it was the recently empowered authors of dramatic works who again brought the issue to the committee's attention. On December 6, 1791, the Committee on Public Instruction received a request from a deputation of authors headed by Beaumarchais to hear new charges against theater directors for noncompliance with the law of January 13. It seems the theater directors had chosen to interpret this law as applying only to future works, leaving them free to present any work, even by a living author, that had already been printed or published. Further, they claimed publication rights on any work contracted by their companies prior to the law.^[111]

Following a series of meetings, the committee drafted a projet de loi that was presented by Gilbert Romme and passed in the National Assembly on August 30, 1792.^[112] This law, however, represented a victory for the theater directors: it upheld all contracts between authors and the theaters and sustained the exclusive right of the theaters to stage any work performed prior to the passage of the law of January 13, 1791. Needless to say, the law met with a vociferous outcry from authors. This time the playwright Marie-Joseph Chénier headed up the protest with a

[111] A succession of meetings and debates on the retroactive implications of the law ensued between the authors and the theater directors in the Committee on Public Instruction on December 9 and 23, 1791, and January 2, 6, 9, 13, and 23, 1792. See M.-J. Guillaume, ed., Procès-verbal du Comité d'Instruction Publique de l'Assemblée Législative (Paris: Imprimerie Nationale, 1889), 47–8, 76, 78–9, 83, and 94. See also Pierre-Augustin Caron de Beaumarchais, Pétition à l'Assemblée Nationale . . . contre l'usurpation des auteurs ([Paris]: Dupont, [1791–1792]).

[112] Presentation of the proposal was first attempted on February 5, 1792, but was deferred, first to February 8 and finally to August 30, 1792. See Guillaume (ed.), Procèsverbal du Comité d'Instruction Publique, 96.

letter and petition to the Committee on Public Instruction dated September 18, 1792. The law, Chénier argued, had been slipped through by Romme without the support of the majority of committee members.^[113] Consequently, the committee reopened the question.^[114]

Those expressing discontent in 1792 were not just writers of dramatic works. On January 2, 1792, the committee received a petition from thirty authors and editors of music who begged the National Assembly, "in all its wisdom, to find a means to protect their property and prevent pirating."^[115] The novelist Jean-Baptiste Louvet de Couvray wrote to the National Assembly as well, requesting permission to present a petition "calling for a law against piraters, who are destroying the book trade and bringing me to ruin."^[116] These appeals did not go unnoticed. On February 20, 1793, the Committee on Public Instruction finally assigned Chénier the task of drafting a general law against pirate editions in all genres.^[117] News of the forthcoming proposal was announced in the Moniteur in April, but Chénier did not succeed in getting the convention floor during the troubled spring of 1793.^[118]

[113] Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:52–53. For the original letter, the reference is now AN, ser. F17, carton 1001, doss. 39, doc. 1.

[114] The struggle between the theater owners and authors was as byzantine as it was, ultimately, fruitless; see ibid., 1:51. In February, P.-C.-L. Baudin was charged by the committee to draft yet another law concerning the rights of authors of dramatic works, with the intention of abrogating the law of August 30, 1792; see Baudin, Rapport et projet de décret sur la propriété des auteurs dramatiques présentés au nom du Comité d'Instruction Publique par P.C.L. Baudin (Paris: Imprimerie Nationale, [1793]), in AN, ser. ADVIII, carton 16. The report was announced in the Journal des débats et des décrets, no. 168 (March 4, 1793); cited in Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:347, 349n. 1. On February 28, the playwright Michel-Jean Sedaine sent a letter and a petition to the committee demanding that the heirs of Jean Racine receive perpetual royalties on the presentation or publication of his works—but to no avail; see AN, ser. F17, carton 1004b, doss. 447, doc. 1, Letter and petition from Sedaine to the Committee of Public Instruction. On March 4, Baudin's proposal, which abrogated the law of August 30, 1792, and reaffirmed the original law of January 13, 1791, was published by the committee and distributed to the members of the National Convention. Protest against the proposal was registered by the committee on March 19. The proposal was pursued no further. See Guillaume (ed.), Procès-verbal du Comité d'Instruction Publique, 367, 369–371, 392n.3.

[115] AN, ser. F17, carton 1004a, doss. 397, Letter from authors and editors of music to the National Assembly, January 2, 1792. This letter and a petition were forwarded to the Committee on Public Instruction on June 2, 1792.

[116] AN, ser. C, carton 147, no. 167, Letter from Jean-Baptiste Louvet de Couvray to the National Assembly, February 23, 1792.

[117] Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 1:347 (session of February 20, 1793).

[118] Cited in ibid., 348.

After the "revolution" of May 31–June 2, 1793, which purged the Girondist faction from the National Convention, Condorcet ceased appearing at committee meetings. A month later he was in hiding.^[119] Sieyès took over the committee presidency on May 23, but he and Chénier both soon withdrew as well.^[120] Denounced as Girondists, all three were formally excluded from the committee on October 6, 1793.^[121] It is ironic that the Girondist law on which modern French publishing is based should emerge precisely at the moment of the Jacobin victory that suppressed its authors. Indeed, it was the Jacobin consolidation of power that made it possible for the law to pass. On July 19, 1793, the convention at last heard Chénier's proposal, presented on behalf of the Committee on Public Instruction by Joseph Lakanal.^[122] It was passed with no recorded discussion.^[123]

The decree amounted to yet another version of the Sieyès proposal of 1790. No longer perceived as a "Girondist" police measure intended to insure the accountability of authors, or as a commercial regulation to protect the private property interests of publishers, it was now presented as a mechanism for promoting public enlightenment by encouraging and compensating intellectual activity—that is, by granting limited property rights to authors:

Citizens, of all the forms of property the least susceptible to contest, whose growth cannot harm republican equality, or cast doubt upon liberty, is property in the productions of genius. . . . By what fatality is it necessary that the man of genius, who consecrates his efforts to the instruction of his

[119] Ibid., xiii.

[120] Alfred Jepson Bingham, Marie-Joseph Chénier: Early Political Life and Ideas (1789–1794) (New York, 1939 [privately printed]), 123–126.

[121] Ibid., 125.

[122] For a textual analysis of the provenance of the projet, see Guillaume (ed.), Procèsverbaux du Comité d'Instruction Publique 2:80. My hypothesis is that Chénier drafted the version of the law but for political reasons did not present it himself. It was ultimately presented by Lakanal. In both the contemporary press and the Committee on Public Instruction's proceedings, Chénier is assumed to be the author, and the proposal conforms closely to the views expressed in his petition of September 18, 1792. This theory is also supported by Bingham, Marie-Joseph Chénier, 123. It should be noted, however, that Joseph Lakanal later claimed credit for the proposal; see his Exposé sommaire des travaux de Joseph Lakanal (Paris: Didot, 1838), 9–12.

[123] Madival and Laurent (eds.), Archives parlementaires 69:186–187. A little over a month later, on September 1, 1793, the convention added a new clause to the law to clarify explicitly that this law was intended to supersede the LeChapelier law on theater authors of 1791 and to cover equally authors of dramatic works; see ibid., 73:293–294.

fellow citizens, should have nothing to promise himself but a sterile glory and should be deprived of his claim to legitimate recompense for his noble labors?^[124]

Like the Sieyès proposal three years earlier, this law guaranteed authors, their heirs, or those to whom they ceded the text by contract an exclusive claim on the publication of the text for the lifetime of the author plus ten years. The royal Administration of the Book Trade, which had registered the literary privileges of the Old Regime, was to be replaced by a national depository at the Bibliothèque Nationale, where all property claims were to be legally registered. The decree differed from the Sieyès proposal in one crucial respect: it gave no retroactive protection to the former holders of privilèges en librairie or privilèges d'auteur . With the law of July 19, 1793, then, the cultural capital of the Old Regime was definitively remanded from the private hands of heirs and publishers into the public domain. As Condorcet had dreamed, the authors of the Enlightenment as well as those of the classical age became the inheritance of all.

The severing of the clauses on literary property from their original context in the Sieyès proposal on sedition and libel, the deletion of the clause reaffirming current privileges, the mobilization of authors, and the new stress on public enlightenment significantly transformed the law's political meaning and impact. Initially part of a concerted moderate effort to re-regulate and police the printed word and insure publishers profits, the recontextualized clauses were presented by Lakanal as a "declaration of the rights of genius"—a Jacobin effort to abolish the vested interests of inherited privileges, to consecrate the bearers of enlightenment, and to enhance public access to the ideas of the Enlightenment.

But the law did not resolve the epistemological tension between Condorcet and Diderot. Instead it produced an unstable synthesis of the two positions. Although it drew on a Diderotist rhetoric of the sanctity of individual creativity as an inviolable right, it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the privilège d'auteur of 1777, the law did not recognize the author's claim beyond his lifetime but consecrated the notion, advanced first by Pierre Manuel to defend his edition of Mirabeau, that the only true heir to an

[124] Lakanal's speech to the National Convention, July 19, 1793, is in Guillaume (ed.), Procès-verbaux du Comité d'Instruction Publique 2:82.

author's work was the nation as a whole. This notion of a public domain, of democratic access to a common cultural inheritance on which no particular claim could be made, bore the traces not of Diderot, but of Condorcet's faith that truths were given in nature and, although mediated through individual minds, belonged ultimately to all. Progress in human understanding depended not on private knowledge claims, but on free and equal access to enlightenment. An author's property rights were conceived as recompense for his service as an agent of enlightenment through publication of his ideas. The law of 1793 accomplished this task of synthesis through political negotiation rather than philosophical reasoning—that is, by refashioning the political identity of the author in the first few years of the Revolution from a privileged creature of the absolutist police state into a servant of public enlightenment.

This understanding of the history of the formation of the legal identity of the author returns us to Foucault's original question: What is an author? The author as a legal instrument for the regulation of knowledge was created by the absolutist monarchy in 1777, not by the liberal bourgeois democracy inaugurated in 1789. The author was created by a royal regime that exercised power through privilege, rather than by a constitutional regime committed to insuring the protection of the individual as a private property owner. The revolutionary legislation did redefine the author's privilege as property, but not as an absolute right. The intention and the result of this redefinition of the author's claim to his text as property did not, however, enhance the author's power to control or determine the uses and meanings of the text. Quite the opposite, in fact.

What the revolutionaries acknowledged and sought to insure was not the individual dictation of meanings and truths, but their maximum exchange, conflict, and social negotiation. Progress in understanding, they believed, occurred through enhanced access and exchange. In reshaping the cultural regime, the revolutionaries sought to make a world appropriate not to an absolutist police state, but to a liberal state founded on conflict and negotiation. The democratic bourgeois revolution did not mark a further step in the progressive consolidation of the notion of the author. Rather, the revolutionaries explicitly intended to dethrone the absolute author, a creature of privilege, and recast him,

Plate 5. 
Detail of "La Révolution française." Engraving by A. Duplessis [1790s]. The 
Revolution celebrated the author as a hero of public enlightenment rather than 
as a private individual creator. Musée de la Révolution française, Vizille, France.

not as a private individual (the absolute bourgeois), but rather as a public servant, as the model citizen (plate 5). This civic ideal of authorship was shared by both liberal statesmen such as Condorcet and Sieyès and the most capitalistically inclined publishers like Panckoucke. Concern for the public good explains why the author's regulative powers, rather than being further consolidated, were eroded and destabilized by the revolutionary legislation.

Contrary to Foucault's Diderotist interpretation, the revolutionary legislation actually reflected not one but both sides of the Enlightenment debate, effecting an epistemologically impure and unstable legal synthesis that combined an instrumentalist notion of the public good with a theory of authorship based on natural rights. Precisely because of this legal instability, the regime by which the public exchange of ideas was regulated would be challenged and renegotiated repeatedly throughout the revolutionary period.

If the Old Regime first accorded Voltaire, Rousseau, or Mirabeau the possibility of legal status as privileged authors with perpetual private lineages for their texts, the Revolution relocated these figures in the public domain, the legal parallel to the civic rituals that unearthed them from private gravesites and reposed their bodily remains in the public temple of the Pantheon. By legally consecrating and protecting the public domain, rather than the private authorial lineage, the French revolutionary laws on authorship shifted the legal basis of exclusive commercial claims on the majority of books from the manuscript to the edition, from the text to the paratext. As a result, the problem of determining the fate and meaning of a text shifted away from its source, the author, and toward its destination, its representation and reception by the editor and reader.^[125] In this way the revolutionaries inaugurated a new cultural regime preoccupied as much with paratexuality—that is, with distinctions between different editions and readings of texts—as with epistemological debates about the origins of ideas.^[126] The questions "Who is Voltaire?" and "What is Rousseau?" were thus joined by a new set of legal, commercial, and also literary preoccupations: Whose Voltaire? Which Rousseau? Not until the end of the nineteenth century would the legal recognition of the "moral rights" of authors put limits on how an author's works, once devolved into the public domain, could be edited or represented.^[127]

Although there can be little doubt that the eighteenth-century expansion of commerce in the printed word placed unprecedented pressures on public authorities to recognize authorial property, the legal responses of both prerevolutionary and revolutionary authorities did not reflect these socio-economic changes alone. Politics, and a concern for public life, mediated the successive negotiations between the private interests of authors and publishers and the concerns of legal authorities. As a consequence, the revolutionary legislators produced a legal conception of authorial identity that did not merely consecrate, but also limited, the author's power of self-determination, for the sake of the public good.

[125] For recent developments in the history of reading, see Chartier, Lectures et lecteurs; Chartier (ed.), Usages de l'imprimé; Roger Chartier, "Texts, Printings, Readings," in The New Cultural History, ed. Lynn Hunt (Berkeley and Los Angeles: University of California Press, 1989), 154–175; and Robert Darnton, "Readers Respond to Rousseau: The Fabrication of Romantic Sensitivity," in Great Cat Massacre, 215–256.

[126] For important theoretical reflections along these lines, see Genette, Seuils .

[127] See Desbois, Droit d'auteur .

With the "declaration of the rights of genius," the power to determine the meaning and fate of ideas devolved from the state, the family, and the corporate publishers to individual authors and to the public at large. The ideal of an enlightened republic was embodied in more than just the "rights of genius"; it lay also in the notion of democratic access to a common cultural inheritance, preserved in the public domain.