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Vidi facinus mirificissimum. Having begun to speak, he absolutely repeated the whole words in the same order in which they had been delivered, without the slightest hesitation; then, commencing from the last, he repeated them backward till he came to the first. Then, again, so that he spoke the first, the third, the fifth, and so on; did this in any order that was asked, and all without the smallest error. Having subsequently become familiarly acquainted with him, I have had other and frequent experience of his power. He assured me (and he had nothing of the boaster in him) that he could recite in the manner I have mentioned to the amount of thirty-six thousand words. And what is more wonderful, they all so adhered to the mind, that after a year's interval he could repeat them without trouble. I know, from having tried him, he could do so after considerable time.'"
Fauvel-Gouraud recites a clever story to illustrate how wonderful was the memory of a young Prussian officer, whose name has been forgotten. When Voltaire was at the Court of Frederick the Great, he spoke enthusiastically to the King one evening of a new poem of considerable length upon which he was at work. Upon its completion, the brilliant literary society of Berlin was assembled at the Prussian Court to hear the new poem read by its author. When the reading was finished, the King was as lavish with his praises as were his learned guests, but laughingly remarked to the philosopher that the same composition had been submitted to his criticism a few months before by one of his officers. Here the King summoned a young officer, and asked for the manuscript. He replied that it had been lost, but remarked that he could recite the poem from memory, which he did with strict accuracy, to the great astonishment of the company and the confusion of Voltaire. Frederick now explained to the French wit that the officer, stationed behind a curtain, had heard the poem read by the author, and was thus enabled to repeat it.
Now what is the difference in principle between calling into requisition one of these prodigious memories and employing the services of a phonographer? It is true these are exceptional cases; but, if necessary, the memory can be trained to do wonders as well as the hand. Are our judges aware that, as well as a system of phonography, there is an art of mnemonics as old as Simonides, who flourished about 500 B. C., and that its teachers have shown it capable of
wonderful results? Are they aware that Lambert Schenkel astonished all classes in France, Germany, and the Netherlands, by his mnemonic performances, which were so wonderful that they were pronounced by some the devil's doings?
This legal doctrine of memory seems to proceed upon the principle that, that faculty being given to man to be used, any use which can be made of it is legitimate; so that if a spectator at a public performance is enabled to carry away in his memory the contents of a play unrestrained by "police" arrangements, he has acquired a right to make any use of it he chooses. The unsoundness of this position is too apparent to need serious consideration. Memory may be legitimately used as a means of improvement, enjoyment, or profit, but not to invade the rights of another, or to acquire property without paying for it. In paying for admission to a public performance, a spectator is entitled to such instruction and enjoyment as he may derive from witnessing and hearing the performance. He is also entitled to the "pleasures of memory" in recalling it afterward. This is the consideration contracted for in return for the price of admission. But there is no contract, express or implied; no consideration, no understanding that the spectator shall acquire any title to the property in the play, or make any use of it detrimental to the interests of the owner. But, say the courts, a spectator cannot be prevented by "police" arrangements or otherwise from carrying away in his memory a knowledge of the play. True, but that is no reason why a judicial tribunal should not restrain him from making public use of it, or should not mulct him in damages for such unlawful appropriation. Take a practical illustration of the distinction between unlawfully obtaining a play by phonography and acquiring lawful possession by memory. Mr. Wallack has, written to order by one of the best dramatists of Paris or London, a manuscript play for his own exclusive use, and brings it out at his own theater, where its marked success makes it coveted by other managers. Mr. Daly, of the Fifth Avenue Theater, sends a phonographer to the performance to get the play in short-hand. The courts cry "piracy!" He then sends the members of his company to bring away in their note-books what they cannot in their memories. The verdict is still " piracy.” The artists again engage seats for the new play, and, having tact and talent in acquiring, and a well-trained memory for retaining,
the dialogue and " business," two or three evenings' attendance is sufficient to enable them to produce the drama on their own stage. This satisfies the Judiciary! In fact this very process was alleged by Miss Keene against Kimball.
This distinction between memory and the note-book is one without a difference. is a distinction merely between the modes or means of obtaining a play, and it is not easy to see why one mode should be more legitimate than the other, since both are without consideration, and against the protests of the owner. The simple manner of obtaining the play, so long as it is without consent or consideration, cannot affect the fundamental issue. Either the public representation of a drama is a publication so as to work an abandonment of the owner's rights, or it is not; and, in either case, the mode of obtaining it is immaterial, as affecting the right of the owner or the wrong of the invader. The real problem is, whether the public performance of an unprinted play is, in itself, an abandonment of the owner's rights; and whatever may be the true solution, the principle is not affected by the means of reproduction, or by the presence or absence of a "restrictive notice."
Although the doctrine recognizing memory as a legitimate means of acquiring title to a dramatic production has been enunciated in several recent American cases, it cannot be regarded as an accepted principle of American jurisprudence, for, in no case in which it has been discussed, except one in Massachusetts, did it appear that the play had been obtained by memory. The direct issue, therefore, was not before the courts, and all the remarks on this point may be regarded as obiter. Indeed, the history of the past fifteen years' litigation on this point shows a very encouraging progress in the direction of liberality and enlightenment. As has been stated, the direct issue has not been squarely presented, but the dicta of the courts are tending toward the explosion of the doctrine that a man may have as much of his neighbor's literary property as he can remember. Already, the companion fallacy, which was introduced into our courts at the same time, has been exploded, viz., that, in order to protect his property from piracy, the manager must cover the walls of his theater and his admission tickets with "restrictive notices" to the spectators that his play is not to be stolen; which would be very much the same as requiring Mr. Stewart to
notify his customers not to steal his silks, in order to protect himself from shoplifters. This absurd notion, which has been gravely discussed and recognized by at least two American judicial tribunals, is buried beyond the hope of resurrection; and there is strong reason to hope that the doctrine of memory, no less unsound, will soon share the same fate. Then may the foreign dramatist put unreserved trust in our courts for that protection to the products of his mental toil which is sacredly guaranteed by the Common Law.
It will now be seen what are the rights of a foreign dramatic author in the United States. Under the copyright law he need expect no protection. He cannot, therefore, print his play, but must carefully guard it in manuscript. When so guarded, the owner, in publicly representing it, need dread nothing but the tenacious memories of his patrons, and let us hope that this cause of fear is only a chimera soon to be slain. It may be remarked here that the privileges accorded to foreign dramatists in the courts of this country are greatly unequal to those enjoyed by native or resident authors. In 1856, Congress gave to the latter, in addition to the exclusive privilege of publication, the sole liberty of representing their dramatic compositions upon the stage. Under this law, therefore, one of our own dramatists, having completed and copyrighted his play, might print and publish it, and at the same time call to strict account any manager or actor for representing it without authority,-thus having complete means of redress. The protection, therefore, provided for American dramatists was statutory, and the remedy consequently more certain; while a foreign dramatist had to depend upon the more uncertain common law remedy; and his American assignee had just the same right, no more nor less, than he himself might claim. The legislation of 1856 has been superseded by the general copyright act of 1870; but it was doubtless intended to retain in the new law the same provisions on this point as were found in the old. Our statutes deny protection to the best dramas that Europe sends us, simply because they are of foreign workmanship; they protect the worst of American plays, simply because they are of native production. This is absurdity itself.
Having seen how, for three-quarters of a century, the American Congress has proclaimed the productions of foreign genius to be common property within our gates,
the legitimate spoil of any one who may choose to print and publish them, it may not be out of place to inquire how the same subject has been treated by the English Parliament and courts. The former, as has been seen, in legislating "for the encouragement of learning," has made no distinction between native and foreign authors, but, aiming to make England the publishing house of the world, the center of learning and culture,, has, in the opinion of the most learned statesmen and lawyers of the realm, invited men of learning of every tongue to send their productions to the United Kingdom for first publication. Tros Tyriusque mihi nullo discrimine agetur. It is true that this intention was less liberally construed in 1854, when the highest judicial tribunal of the realm declared the bodily presence of a foreign author upon English soil at the time of publication to be an essential condition precedent to valid copyright. But even while this continues the supreme law, a compliance does not become a hardship. Moreover, between England and several Continental powers, including France, Prussia, Belgium, Spain, etc, a special international copyright arrangement subsists, by which the authors of those countries may enjoy in England the privileges of protection for their works without being on English territory, or even first publishing in Great Britain. But these favors are granted by England only in cases of reciprocity to British authors, and therefore the United States does not come within this arrangement.
Nevertheless, American authors may easily acquire valid copyright in England. The conditions are three. In the first place the British public must have the benefit of a first publication. This does not mean that the author must publish there and nowhere else. He may publish in as many countries and as many languages as he pleases; but in no place must the publication be on an earlier day than in the United Kingdom. It may, however, be on the same day, as the English courts make no distinction between a first and a contemporaneous publication. In the next place, the book must be published in England, Wales, Scotland, or Ireland; it is not sufficient that it appear in Canada, India, or any of the provinces. Lastly, the author is required to be upon British soil at the time of such publication. Where, it matters not; whether in the busy streets of London, within the "Asiatic Empire of Britain," under an African sun, or at any point in Canada between VOL. XI.-7
the two oceans. Provided he be anywhere within the British dominions when his work is published first in the United Kingdom, English law will be satisfied, and his book will be protected wherever that law is supreme.
We find here, then, no more irksome condition imposed upon an American author seeking English copyright than a short trip to Canada. And this would not be a serious matter in the case of a citizen of Detroit, where only the waters of the St. Clair separate American from British soil; still less to an author who might be enjoying the scenery of Vermont, where only an imaginary line marks the limit between American and English rule. And yet it is only necessary for an American author to step across this border to satisfy the law of London which makes this a dividing line between valid and void copyright in an American book.
That the copyright laws of England still deny to men of letters that full protection to which the labors of every man, poet or peasant, is rightly entitled, and which was enjoyed by English authors prior to 1774, is true; that the effects of those laws give to literary men, and especially to dramatists, just cause of complaint, is also true. But it cannot be successfully disputed that the British nation for more than a century and a half has pursued a far more liberal and enlightened policy toward foreign authors than has the American Government. The motive of the former may have been a selfish one, viz., the advancement of British interests. But, if so, is it not selfishness of a more wholesome kind than that which turns from our shores the productions of foreign literature and art? Under the catholic spirit of the English laws toward the authors of other countries, English literature and art and culture have continued to flourish and advance. Is not that full of significance to American legislators ? In other words, does not broad and enlightened statesmanship require that our gates be opened wide to the literature and science of England, the philosophy of Germany, and what is best in the drama of France? Upon two or three slight conditions, England welcomes to the protection of her copyright laws, all tongues, all races, all creeds; the United States turns away all but its own citizens. This may be, in the "glorious Latin Webster borrowed of Sir Robert Peel, vera pro gratis, unwelcome truth;" but, if the first step toward remedying an evil is to expose it, the sooner we know the deficiencies of our copyright laws, the sooner we may hope to see them improved.
On the morning of the 2d of August, 1848, the good packet ship "Diadem" sailed out of its London dock, bearing to the New World, in the midst of much other more or less precious freight, a group of German musicians. They were members of an orchestra which was destined to fulfill as eventful a history for itself as it did a faithful mission of good toward the progress of music in America,-an orchestra since known perhaps throughout the entire country, and certainly in every American city, as the Germania Musical Society.
The Germania Orchestra was composed of twenty-four members. They were young and adventurous, but they carried with them something better than a love for adventure
-a love for their chosen art, so strong and faithful that it was in fact the primary cause of their journeyings; so sacred that it claimed precedence over every social tie; and so enduring that in the long period of varied. and frequently evil fortune which was now to follow, they were never once untrue to that art. Amid hardships which would perhaps have broken a mere spirit of adventure, they did not turn back, but, pushing through and conquering every difficulty, they won at length, even in that unartistic field, a genuine artistic triumph; compromising none of their classical instincts, and winning the field by storm rather than strategy, at the very point of the musical bayonet.
Bearing in mind the condition of musical taste in this country a quarter of a century ago, and measuring its immense strides since that day; noticing too, how, during the ear
THE OLD GERMANIA ORCHESTRA.
lier part of that period, the progress of musical feeling and the success of the " Germania were accurate barometers of each other, it cannot, surely, be an ill-spent hour in which we here recall the history of its
Violin II. Thiede....
The nucleus of the Germania Orchestra was formed from Joseph Gungl's orchestra of Berlin. To these members were added others of equal culture, if not equal experience, and, being nearly all young men and personal friends, they had thus, at the outset, an important combining link which secured their unity of purpose and effort during so many years.
The idea of forming an orchestra for an American tour originated in the autumn of 1847. The political events which were then hastening the downfall of Louis Philippe and which soon enveloped all central Europe in the gravest difficulties, had caused a general neglect of musical matters, which extended even to the German public, and the revolution of March 18, 1848, which seemed for a time to paralyze the entire public mind, had the effect to confirm and hasten the purpose of the young musicians.
The original plan of the organization was to start directly for the United States. At a preliminary entertainment, given before the United States Minister to Berlin, Mr. Wright, the English Ambassador, the Earl of Westmoreland, was present. The Earl was somewhat distinguished as an amateur in music, and an overture of his composition was performed on this occasion. This first concert of the young society took place May 4, 1848, in the Milentzschen Saale, at Berlin. It was so decidedly successful that both the Earl and the American Minister furnished the orchestra with strong recommendatory letters, and thus fortified they resolved first to visit London. The qualifi
cations of a consular incumbent from this country scarcely included then, any more than at present, a critical knowledge of musical technics, and we are without information as to our Mr. Wright's accomplishments in this respect. It is probable, however, that the worthy representative thought he could not go far wrong in adding his official signature to that of a man who had actually written a piece of music himself.
Arriving in London, the members found their progress materially checked by their
total ignorance of the business part of their enterprise. A Kunstreise of such magnitude as the one now projected must be conducted on business laws as strict as the laws of music itself. An orchestra is a large and, when in incompetent hands, an unwieldy affair to manage. A number of concerts were given in London, but while the applause was liberal, the financial results were far from satisfactory. The performances given were three matinees at the Princess' Theater, two concerts in Hanover square, two in Crosby Hall, and eight promenade concerts, together with numerous private entertainments which were often very enjoyable. The most memorable among these latter was a soirée given at the magnificent villa of the Messrs. Baring Brothers, where numerous celebrated operatic stars took part, including Grisi, Garcia, Alboni, Mario, and Tamburini. The invited guests were from the highest circles, and the new orchestra obtained a large share of the applause. The Duke of Cambridge, himself an amateur on the violin, was particularly interested in this department of the orchestra, turning the leaves for the first violins, and calling the attention of the entire company to the performance of the orchestral pieces. Other prominent occasions wherein the Germanians took part seemed to be gradually directing the public attention more and more to their merits, and it is quite possible that they might have remained and done well in London during the succeeding season. But the charms of distance and of novelty; the never-ebbing tide of golden rumor that was now beating constantly against the shores of the old world, lured our young musicians more and more strongly to the new. To the United States they were bound, and to the United States they sailed as aforesaid.
The passage must be called, we suppose, a "speedy and prosperous voyage," as it occupied only fifty-eight days. They reached New York on the 28th of September, and on the 5th of October they gave their first performance in America at Niblo's "Opera-House."
It would be difficult to attempt a description of the condition of musical affairs in America at that period, which would be intelligible to one who knows only the standard of the present. Very few celebrated virtuosi, either singers or instrumentalists, had yet visited the "States." Even the opera was almost a novelty, although at this very period Madame Laborde, with
a meager troupe, was performing in New York. Jenny Lind, who occasioned the earliest general furore in regard to music, did not arrive until nearly three years later. There was not even a decent opera-house in America. Dingy theaters and barren public halls were the sole provision made for accommodating public gatherings.
The condition of orchestral music was even still lower than vocal. Twenty-three years earlier, when that greatest of all music teachers, Manuel Garcia, with his young daughter, afterward Malibran, the greatest of all dramatic singers, essayed the first Italian opera ever given in America, it is related that he was so maddened by the shocking style in which the second finale to "Don Giovanni" was rendered by the orchestra, that he rushed to the foot-lights, sword in hand, and indignantly compelled them to play it over. In the long interval there had been little or no opportunity for orchestral music to improve. The only intervening opera company, that of the Woods, in 1840, could have done very little to advance its condition, and the Steyermark band, which came over under the conductorship of Riha, in 1846, scarcely gave a whole season's performances before it was disbanded.
The advent of the Germania, therefore, an orchestra which, although small in numbers, was almost complete in its various parts, and composed of really fine performers, was indeed something of a musical wonder. But there was another feature of this enterprise which was altogether without a parallel in the history of American musical enterprises. The public taste at that day, in such matters as music, the drama, and fine arts generally, was almost entirely founded on foreign choice and reputation. The few great artists who had ventured so far, came here with the thickly woven laurels of the Old World on their brows. Then, in addition to this, a soloist is always more of an attraction to the average mass of pleasure seekers than any combination. When, therefore, we consider that the "Germania" was organized especially for the American "market," that it came here with no foreign reputation clinging to it, either as a whole, or in any of its members, such an enterprise argues not only great faith in the sound, good taste of the American people, but an equally firm consciousness of the strength and thoroughness of its own organization.
The first concert in New York, above mentioned, was, in an artistic point of view, highly successful. The few who could ap