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 global mandatory fair use

In a path-breaking work, Tanya Aplin and Lionel Bently make the case that the quotation
exception in Article 10 of the Berne Convention constitutes a global mandatory fair use
provision. It is global, they argue, because of the reach of Berne and TRIPS, and its
mandatory nature is apparent from the clear language of Article 10 and its travaux. It
relates to ‘use’ that is not limited by type of work, type of act or purpose, and it is ‘fair’ use
because the work must be made available to the public, with attribution, and the use
must be proportionate and consistent with fair practice. By explaining the contours of
global mandatory fair use – and thus displacing the ‘three-step test’ as the dominant,
international copyright norm governing copyright exceptions – this book creates new
insights into how national exceptions should be framed and interpreted.

Tanya Aplin has been a professor of intellectual property law at King’s College London
since 2011. She is Director of the Postgraduate Diploma in UK, EU and US Copyright
Law and Co-director of the LLM in Intellectual Property and Information Law offered by
King’s College London, and a door tenant at Three New Square, Lincoln’s Inn. Her
publications include Copyright Law in the Digital Society: The Challenges of
Multimedia, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights
(7th, 8th and 9th eds., with Prof. Cornish and Prof. Llewelyn); Intellectual Property Law:
Text, Cases and Materials (1st, 2nd and 3rd eds, with Dr Davis); and Gurry on Breach of
Confidence: The Protection of Confidential Information (with Prof. Bently, Prof. Johnson
and Mr Malynicz). She has also edited the Research Handbook on Intellectual Property
and Digital Technologies and is on the Editorial Committee of the Modern Law Review
and Current Legal Problems.
Lionel Bently has been the Herchel Smith Professor of Intellectual Property Law at the
University of Cambridge since 2004. He is Co-director of the Centre for Intellectual
Property and Information Law at the University of Cambridge and a door tenant at 11
South Square, Gray’s Inn. His publications include The Making of Modern Intellectual
Property Law (with Prof. Brad Sherman); Intellectual Property Law (editions 1–4, with
Prof. Brad Sherman; 5th ed, with Profs. Sherman, Dev Gangjee and Phillip Johnson);
and Gurry on Breach of Confidence: The Protection of Confidential Information (with
Prof. Aplin, Prof. Johnson and Mr Malynicz). He is General Editor of International
Copyright Law and Practice (with Burton Ong), co-editor (with Prof. Martin Kretschmer)
of Primary Sources on Copyright and Editor-in-Chief of the Cambridge Law Journal.
 CAMBRIDGE INTELLECTUAL PROPERTY AND INFORMATION LAW

As its economic potential has rapidly expanded, intellectual property has become
a subject of front-rank legal importance. Cambridge Intellectual Property and
Information Law is a series of monograph studies of major current issues in intellectual
property. Each volume contains a mix of international, European, comparative and
national law, making this a highly significant series for practitioners, judges and aca-
demic researchers in many countries.

Series Editors
Lionel Bently
Herchel Smith Professor of Intellectual Property Law, University of Cambridge
Graeme Dinwoodie
Global Professor of Intellectual Property Law, Chicago-Kent College of Law,
Illinois Institute of Technology

Advisory Editors
William R. Cornish, Emeritus Herchel Smith Professor of Intellectual Property
Law, University of Cambridge
François Dessemontet, Professor of Law, University of Lausanne
Jane C. Ginsburg, Morton L. Janklow Professor of Literary and Artistic Property
Law, Columbia Law School
Paul Goldstein, Professor of Law, Stanford University
The Rt Hon. Sir Robin Jacob, Hugh Laddie Professor of Intellectual Property,
University College London
Ansgar Ohly, Professor of Intellectual Property Law, Ludwig-Maximilian
University of Munich

A list of books in the series can be found at the end of this volume.
 Global Mandatory Fair Use
the nature and scope of the right to quote
copyright works

TANYA APLIN
King’s College London
LIONEL BENTLY
University of Cambridge
University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre,
New Delhi – 110025, India
79 Anson Road, #06–04/06, Singapore 079906

Cambridge University Press is part of the University of Cambridge.

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

www.cambridge.org
Information on this title: www.cambridge.org/9781108835459
DOI: 10.1017/9781108884099

© Tanya Aplin and Lionel Bently 2020

This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2020
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
NAMES: Aplin, Tanya Frances, 1972– author. | Bently, Lionel, 1964– author.
TITLE: Global mandatory fair use : the nature and scope of the right to quote copyright works
/ Tanya Aplin, King’s College London; Lionel Bently, University of Cambridge.
DESCRIPTION: Cambridge, United Kingdom ; New York, NY : Cambridge University Press,
2020. | Series: Cambridge intellectual property and information law | Includes
bibliographical references and index.
IDENTIFIERS: LCCN 2020018242 | ISBN 9781108835459 (hardback) | ISBN 9781108884099 (ebook)
SUBJECTS: LCSH: Fair use (Copyright) | Copyright.
CLASSIFICATION: LCC K1420.5 .B46 2020 | DDC 346.04/82–dc23
LC record available at https://lccn.loc.gov/2020018242
ISBN 978-1-108-83545-9 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
 Contents

Acknowledgements page viii

Table of Legislation x
Table of Cases xx

1 Introduction 1

2 The History of Article 10(1) Berne 6

I Berne (1884–1886) 6
II Rome (1928) 8
III Brussels (1948) 12
IV Stockholm (1967) 16
A The Study Group 17
B Committee of (Non-official) Experts 20
C Second Report of the Study Group 21
D Interest Group Inputs 22
E Committee of Government Experts 25
F The Draft Treaty 26
G The Intergovernmental Conference 26

3 Preliminary Considerations about the Nature of the Quotation

Exception 29
I The Mandatory Nature of the Quotation Exception 29
A Article 10(1) Berne as Mandatory 29
B Is Article 10(1) Berne Imperative? 38
II Types of Works That Are Subject to Article 10(1) Berne 43
A Berne Works 44
B Post-Berne Works 47
1 Computer Programs and Databases 47
2 Rome Convention Subject Matter (Performance,
Phonograms and Broadcasts) 50

v
vi Contents

3 Miscellaneous Subject Matter 53

C Quotation and the Intersection of Authorial Works
and Related Rights 53
III Types of Rights That Are Subject to Article 10(1) Berne 55
A Economic Rights 55
1 Under Berne 55
2 Post-Berne 55
B Moral Rights 57
IV Non-applicability of the Three-Step Test to the Mandatory
Quotation Right 60
A Article 9(2) Berne 61
B Article 13 TRIPS 63
C Article 10 WIPO Copyright Treaty 1996 65

4 Article 10(1) Berne: Requirements 69

I No Limitation by Purpose 69
II Article 10(1) Berne: Work Already Lawfully Made Available
to the Public 71
III Article 10(3) Berne: Attribution Requirement 77
IV Article 10(1) Berne: The Requirement of Proportionality 78
A The Interrelationship between Proportionality and Fair
Practice 78
B The Proportionality Enquiry 80

5 Article 10(1) Berne: The Meaning of Quotation 83

I Introduction 83
II Characteristics of Quotation in Relation to the Source Material 90
A Is Quotation Inherently Limited to Literary Works or Text? 90
1 Music 92
2 Film 93
3 Architecture 95
B Is a Quotation Inherently Short? 101
C Is It Possible to Quote an Entire Work? 104
D Must the Quotation Be Taken from Another Author? 109
III Characteristics of Quotation in Relation to the Destination Material 110
A Must the Quotation Be Used in Another ‘Work’? 110
B Must the Quotation Be Proportionately Short? 113
C Must the Quotation Be Unaltered? 114
D Must the Quotation Be Identifiable? 125
IV Characteristics of Quotation According to the Interrelationship
between the Source and Destination Material 128
A Must a Quotation Be Deliberately Used? 128
 Contents vii

B Must a Quotation Be Used to Further an Argument 131

V Conclusion 138

6 Article 10(1) Berne: Fair Practice 140

I Introduction 140
II Rejecting Three Possible Approaches to Fair Practice 142
A Fair Practice as Solely Determined by National Law 142
B Fair Practice as a Matter of State Practice 148
C Fair Practice as Synonymous with the Three-Step Test 150
III Fair Practice as an Independent, Pluralistic Norm 151
A Fair Practice – The Role of Harm 154
B Fair Practice – The Role of Freedom of Expression 159
C Fair Practice – The Role of Distributive Justice 163
D Fair Practice – The Role of Custom 168
E Fair Practice – The Role of Good or Bad Faith 176
F Fair Practice – A Role for Honest Commercial Practices? 180
IV Fair Practice – A Matter of Rules or Standards? 185

7 The Consequences of Global Mandatory Fair Use 190

I Article 10(1) Berne in Contrast to the Three-Step Test 190
A Acceptable Scope of the Exception 192
B The Normative Value of the Exception 194
C The Unpublished Nature of the Source Work 198
D The Treatment of Moral Rights of Authors 199
E The Cumulative Nature of the Requirement 201
F Free-Use Exceptions 204
II Changes to National Exceptions 204
A Specific-Quotation Exceptions 204
B Fair Dealing Exceptions 208
III Judicial Interpretation 209
IV Making Sense of the Parody Exception 216
V Industry Guidelines and Practices 222

8 Conclusion 225

Bibliography 230
Index 249
 Acknowledgements

This book has had a long gestation period, and versions of it have previously been
presented at multiple seminars, workshops and conferences, including the Fordham
Conference on Intellectual Property Law and Policy (Cambridge, UK, April 2015),
the workshop on ‘Music and Creativity’ (Cambridge, UK, April 2015), the IP Bar
Association Annual Lecture (Gray’s Inn, London, July 2015), the ZiF conference
‘Towards an Ethics of Copying’ (Bielefeld, Germany, October 2015), a seminar at
Emmanuel College, Cambridge (November 2015), the Bournemouth University
conference on ‘Copyright Reform: The Implications One Year On’ (Bournemouth,
November 2015), ATRIP (Jagiellonian University, Cracow, June 2016), the confer-
ence on ‘Comparative Dimensions of Limitations and Exceptions’ (Singapore,
July 2016), the IViR seminar (IViR, University of Amsterdam, April 2016), the
Wolfson Humanities Society (Wolfson College, Cambridge, February 2018),
ALADDA Intellectual Property Conference (Salamanca, Spain, June 2018), the
‘Age of Stream’ Conference (UEA, Norwich, July 2018), ‘One Hundred Years of
Copyright’ (House of World Culture, Berlin, Germany, October 2018), ‘Learning on
Screen Members’ Day: Copyright and Creative Reuse’ (London, December 2018,
RSA House), ‘Owning Expression and Propertizing Speech’ (University of
Luxembourg, November 2019), CREATe Public Lecture (University of Glasgow,
February 2020), and the Harold Fox Memorial Lecture (Toronto, Canada,
February 2020). Our thanks go to the many peers who have commented on and
debated the questions we have engaged in over several years, including Richard
Arnold, Graeme Austin, Amrei Bahr, Jørgen Blomqvist, Kathy Bowrey, Robert
Burrell, Richard Danbury, Jennifer Davis, Graeme Dinwoodie, Thomas Dreier,
Alan Durant, Sevérine Dusollier, Niva Elkin-Koren, Hector Foucé, Suzy Frankel,
Christophe Geiger, Peter Fydler, Daniel Gervais, Jane Ginsburg, Jonathan Griffiths,
Henning Grosse Ruse-Khan, Darren Hick, Emily Hudson, Bernt Hugenholtz,
Sabine Jacques, Ariel Katz, Barbara Lauriat, Brigitte Lindner, Makeen F. Makeen,
Thomas Margoni, Ryszard Markiewicz, Daniel McClean, Bartolomeo Meletti,
Chris Morrison, Wee Loon Ng-Loy, Norbert Niclauss, Ansgar Ohly, Ruth

viii
 Acknowledgements ix

Okediji, Johnson Okpaluba, Claudy Op den Kamp, Eberhard Ortland, James

Parish, Alexander Peukert, Sam Ricketson, Pamela Samuelson, Nick Scharf, Jane
Secker, Martin Senftleben, Michael Silverleaf, Aram Sinnreich, Will Slauter, Anna
Tischner, Mireille van Eechoud and Kim Weatherall.
The manuscript draws on two published articles: ‘Whatever Became of Global,
Mandatory Fair Use: A Case Study in Dysfunctional Pluralism’, in S. Frankel (ed), Is
Intellectual Property Pluralism Functional? ATRIP Intellectual Property Series
(Edward Elgar 2019), ch. 1, and ‘Displacing the Dominance of the Three Step
Test’, in Shyamkrishna Balganesh, Wee Loon Ng-Loy and Haochen Sun (eds.),
Comparative Aspects of Limitations and Exceptions in Copyright Law (Cambridge
University Press, forthcoming 2020), ch. 3.
Thanks also to Malcolm Langley at the QMUL IP Archive for his help in locating
sources and to Mr James Parish and Dr Jacqueline Nwozo for their valuable research
assistance at different stages of the project. We are grateful to the editors, Cameron
Daddis, Matt Gallaway and Rebecca Jackaman, at Cambridge University Press and
the production and copyediting team of Richards Paul and Rachel Paul, all of whom
greatly assisted in the smooth journey from proposal to publication. Finally, we
would like to thank our respective partners, Megan Smith and Clair Milligan, for
their constant and patient support.
 Table of Legislation

table of international conventions and agreements

Agreement on Trade Related Aspects of Intellectual Property Rights 1994

(‘TRIPS’)
Article 2(2) 64, 65
Article 9(1) 49
Article 10(1) 47–48
Article 10(2) 49
Article 11 55
Article 13 49, 51, 60, 61, 62, 63–65, 190
Article 14(1) 51
Article 14(6) 51–52
Article 30 195
Article 39 182, 184
Beijing Treaty on Audiovisual Performances 2012 (‘Beijing Treaty’)
Article 13(1) 52
Article 13(2) 52
Article 16(2) 52
Berne Convention for the Protection of Literary and Artistic Works
1928 Rome Revision of the Berne Convention 8–11
1948 Brussels Revision of the Berne Convention 12–16
Article 9(2) (now Article 10bis(2)) 19, 23, 28, 31
Article 10(1) 45
Article 24 18, 58
1967 Stockholm Revision of the Berne Convention 16–28
Berne Convention on the Protection of Literary and Artistic Works 1886 (rev. Paris
1971) (‘Berne’)
Article 1 45, 111, 142
Article 2 45, 47, 49, 53, 57, 142

x
 Table of Legislation xi

Article 2(1) 44, 48

Article 2(3) 44
Article 2(5) 44, 49, 53, 142
Article 2(6) 44
Article 3(3) 62, 63
Article 5(1) 33
Article 6bis 57, 58, 59, 60, 64, 77–78, 123, 158–9, 199, 200–201
Article 7 187
Article 7(3) 72, 73
Article 7bis 142
Article 8 45, 122
Article 9(1) 45
Article 9(2) 22, 24, 29, 55, 57, 60, 61, 62, 63, 71, 122, 124, 138, 150–1, 187, 199, 217
Article 10(1) passim
Article 10(2) 29, 45, 68, 69, 71, 79, 88, 136, 137, 138, 140
Article 10(3) 3, 57, 60, 77–78, 199, 202
Article 10bis(1) 28, 29, 59
Article 10bis(2) 31, 68, 69, 71, 72, 79, 81, 88, 122
Article 11 68, 122
Article 11bis(1) 45, 57, 64, 77, 122
Article 11bis(2) 56, 57, 64, 68, 71, 77
Article 11bis(3) 26, 71
Article 11 ter 122
Article 12 45, 122
Article 13 122
Article 14 45
Article 15 45
Article 15(4) 74
Article 16 45
Article 17 72
Article 18 45
Article 19 32
Article 20 32, 64, 67
Article 37(3) 121
Charter of Fundamental Rights of the European Union 2000 (‘EU Charter’)
Article 11 36, 37, 160, 163
Article 13 211, 213
Article 17(2) 163
European Convention on Human Rights 1950 (‘ECHR’)
Article 10 160
Geneva Convention for the Protection of Producers of Phonograms against
Unauthorised Duplication of Their Phonograms 1971 (‘Geneva Convention’)
xii Table of Legislation

Article 6 52
Article 7(1) 52
International Covenant on Economic, Social and Cultural Rights 1966
Article 15(1)(c) 59
International Covenant on Civil and Political Rights 1966
Article 19 160
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are
Blind, Visually Impaired or Otherwise Print Disabled 2013 (‘Marrakesh
Treaty’)
Articles 1 35
Article 4(1)(a) 35
Article 5 35
Article 6 35
Article 7 42
Paris Convention for the Protection of Industrial Property (as amended on
28 September 1979) (‘Paris Convention’)
Article 10bis 180–184
Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations 1961 (‘Rome Convention’) 47, 50
Article 1 51
Article 15 36, 50
Universal Declaration of Human Rights 1948
Article 19 89
Article 27(1) 59
Article 27(2) 89
Vienna Convention on the Law of Treaties 1969 (‘Vienna Convention’)
Article 31 48, 84, 88, 148, 151, 153
Article 32 89, 153
WIPO Copyright Treaty 1996 (‘WCT’)
Article 1(2) 66
Article 1(4) 50, 67
Article 4 47, 48, 50
Article 5 49, 50
Article 6 55, 67
Article 7 55, 67
Article 8 56, 67, 68
Article 10(1) 56, 67–68
Article 10(2) 60, 61, 65–68
WIPO Performances and Phonograms Treaty 1996 (‘WPPT’)
Article 1(3) 52
Article 16(1) 52
Article 16(2) 52
 Table of Legislation xiii

eu directives and regulations

First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of

the Member States Relating to Trade Marks OJ L 40, 11.2.1989
Article 6 182
Directive 91/250/EEC [1991] OJ L122/42, subsequently codified as 2009/24/EC on the
Legal Protection of Computer Programs [2009] OJ L 111/16 (‘Software
Directive’)
Article 5(2) 39
Article 5(3) 39
Article 6 39
Article 7 40
Article 8 39
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996
on the Legal Protection of Databases OJ L 77, 27.3.1996 (‘Database Directive’)
Article 6 40
Article 8 40
Article 11 53
Directive 2001/29/EC on the Harmonization of Certain Aspects of Copyright and
Related Rights in the Information Society 22.6.2001,OJ L 167/10 (‘Information
Society Directive’)
Article 2 36
Article 2(c) 211
Article 3(2) 108
Article 5 40, 110
Article 5(1) 35
Article 5(2) 35
Article 5(2)(a) 40
Article 5(2)(c) 40
Article 5(2)(d) 40
Article 5(2)(e) 40
Article 5(3) 35
Article 5(3)(a) 40, 136
Article 5(3)(b) 40, 43
Article 5(3)(c) 108
Article 5(3)(d) 35, 36, 37, 40, 47, 52, 53, 54, 74, 108, 126, 132, 133, 210–216
Article 5(3)(e) 40
Article 5(3)(k) 123, 220–222
Article 5(5) 37
Article 6 40
Article 6(4) 40, 43
xiv Table of Legislation

Directive 2006/116/EC on the Term of Protection of Copyright and Certain Related

Rights (codified version) OJ L372, 27.12.2006
Article 3(3) 53
Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community
Trade Mark, OJ L78, 24.3.2009
Article 12 182–3
Directive (EU) 2015/2436 of the European Parliament and of the Council of
16 December 2015 to Approximate the Laws of the Member States Relating to
Trade Marks OJ L 336, 23.12.2015 (‘Trade Marks Directive’)
Article 12 182–184
Recital 27 183
Directive (EU) 2016/943 of 8 June 2016 on the Protection of Undisclosed Know-How
and Business Information (Trade Secrets) against Their Unlawful Acquisition,
Use and Disclosure [2016] OJ L157/1 (‘Trade Secrets Directive’)
Article 3(1)(d) 184
Article 4(1)(b) 184
Article 4(2)(a) 184
Regulation (EU) 2017/1001 of the European Parliament and of the Council of
14 June 2017, OJ L154, 16.6.2017 (‘EU Trade Mark Regulation’)
Article 14(2) 182–3
Recital 21 183
Directive (EU) 2017/1564 of the European Parliament and of the Council of
13 September 2017 on Certain Permitted Uses of Certain Works and Other
Subject Matter Protected by Copyright and Related Rights for the Benefit of
Persons Who Are Blind, Visually Impaired or Otherwise Print-Disabled
(‘Marrakesh Directive’)
Article 3(5) 43
Recital 9 43
Directive (EU) 2019/790 of the European Parliament and of the Council of
17 April 2019 on Copyright and Related Rights in the Digital Single Market
Amending Directives 96/9EC and 2001/29/EC OJ L 130, 17.5.2019 (‘Digital
Single Market Directive’)
Article 15 54
Article 17(7) 36, 41–2
Recital 57 55

table of national legislation

Andorra, Law on Copyright and Neighboring Rights

Article 8, 188
 Table of Legislation xv

Argentina, Law on Legal Intellectual Property Regime, No 26.570, 2009, (amending

Law No 11.723 of 28 September 1993)
Article 10 91, 99, 205
Armenia, Copyright and Related Rights Law 2006
Article 22 205
Australia, Copyright Act 1968 (Cth)
Section 40 208
Section 40(2) 144
Section 41 208
Section 41A 217–20
Section 42 208
Section 103AA 217–218
Australia, Copyright Amendment Act 2006 (Cth)
Sch 6 Pt 3, Items 9A-9B 217
Austria, Federal Law on Copyright in Literary and Artistic Works and Related Rights
(Copyright Act) (as amended up to Federal Law Gazette (BGBl) I No. 99/2015
Section 46 205
Belgium, Book XI, Title V of the Code of Economic Law (Authors and Related
Rights) (updated 19 June 2019)
Article XI.189 204
Bermuda, Copyright and Designs Act 2004
Section 41 208
Section 42 208
Bosnia and Herzogovina, Act of 13 July 2010 on Copyright and Related Rights
Article 47 107
Brazil, Law No 9.610 of 19 February 1998 on Copyright and Neighboring Rights)
Article 46(VIII) 108, 205
Burundi, Law No. 1/021 of 30 December 2005 on the Protection of Copyright and
Related Rights in Burundi
Article 26, 188
Cambodia, Law on Copyright and Related Rights 2003
Article 25 205
Canada, Copyright Act 1985
Section 29 208, 209
China, Copyright Law of the People’s Republic of China of February 26, 2010
(amended up to the Decision of February 26, 2010, by the Standing
Committee of the National People’s Congress on Amending the Copyright
Law of the People’s Republic of China)
Article 22 204
Colombia, Law on Copyright No 23, 1982
Article 31 90
xvi Table of Legislation

Costa Rica, Law on Copyright and Related Rights No. 6683, 1982 (as amended up to
Law No 8834 of 3 May 2010)
Article 70 90
Cyprus, Law on Copyright and Related Rights of 1976 (Law No. 59/1976, as
amended up to Law No. 18(I)/1993)
Section 7(f) 90
Czech Republic, Consolidated Version of Act No. 121/2000 Coll., on Copyright and
Rights Related to Copyright and on Amendment to Certain Acts (the Copyright
Act, as amended by Act No. 81/2005 Coll., Act No. 61/2006 Coll. and Act No.
216/2006 Coll.)
Article 31a 206
Article 31(1)(b) 108
Dominican Republic, Law on Copyright, No 65–00
Article 35 90, 188
Ecuador, Intellectual Property Law (Consolidation No. 2006–13)
Article 839a 108
Eritrea, Civil Code 1993
Article 1661 91
Estonia, Copyright Act 2004 (consolidated text of 1 February 2017)
Article 19(1) 205
France, Intellectual Property Code 1992 146–147
Article L113–2 143
Article L121 72
Article L122-5(3)(a) 33, 104, 110, 131, 146–7, 205, 206
Article L211-3(3) 53
Article L215-1 53
France, Law No. 57-298 of March 11, 1957 on Literary and Artistic Property
Article 41–3 90
Germany, Authors’ Rights Law of September 9, 1965
Article 12(1) 75
Article 51 111, 147
Article 51(1) 73
Article 51(2) 73
Article 51(3) 73
Article 70 53
Article 72 53
Germany, Basic Law 1949
Article 5 207
Greece, Law No. 2121/1993 on Copyright, Related Rights and Cultural Matters (as
amended up to Law No. 4281/2014)
Article 19 105, 188, 204–5, 206
Guinea-Bissau, Copyright Code (approved by Decree-Law No 46.980 of 28 March 1972)
 Table of Legislation xvii

Article 185 90, 111, 126

Hong Kong, Copyright Ordinance 2011, Ch 528
Section 39(1) 208
India, Copyright Act 1957
Section 52 209
Section 52(a) 208
Section 52(a)(ii) 208
Israel, Copyright Act 2007
Section 19 145
Italy, Protection of Copyright and Neighbouring Rights, Law No 633, 1941
Article 70 147–8
Jordan, Law on Copyright No 22, 1992 (and Amendments up to 2005)
Article 17(d) 91
Kenya, Copyright Act 2001, Ch 130
Section 26(1) 208
Korea, Republic of, Copyright Act (Act No. 432 of January 28, 1957, as amended up
to Act No. 12137 of December 30, 2013)
Article 28 188, 204
Latvia, Copyright Law (as amended up to 31 December 2014)
Section 20 205
Lithuania, Law on Copyright and Related Rights No. VIII-1185 of 18 May 1999 (as
amended on 7 October 2014 – by Law No. XII-1183)
Article 21 205, 206
Malaysia, Copyright Act 1987 (Act 332, as at 1 January 2006)
Section 13(m) 145, 188
Malta, Copyright (Amendment) Act No. IX of 2009
Section 9 205
Mexico, Ley Federal Del Derecho De Autor, 24 December 1996 (as amended)
Article 148 205
Morocco, Law and Copyright and Related Rights, 15 February 2000, Law 2–00
Article 14 206
New Zealand, Copyright Act 1994
Section 42 208–9
Section 43 208
Niger, Decree No. 93-027 of March 30, 1993, on Copyright, Neighbouring Rights
and Folklore
Article 10 188
Nigeria, Copyright Act, Cap c28, Laws of the Federation of Nigeria 2004 (Second
Schedule)
Section 6 208, 209
Poland, Copyright Act 84 of 4 February 1994
Section 29.1 206
xviii Table of Legislation

Portugal, Código do Direito de Autor e dos Direitos Conexos 1985

Article 77(1)(g) 204
Romania, Law No. 8 of March 14, 1996 on Copyright and Neighbouring Rights
Article 33(1)(b) 206
Senegal, Law No. 2008-09 of January 25, 2008, on Copyright and Related Rights
Article 44 188
Serbia, Law on Copyright and Related Rights (Official Gazette Republic of Serbia
No. 104/2009, 99/2011, 119/2012 and 29/2016)
Article 49 206, 207
Singapore, Copyright Act 1987 (revised in 2006)
Section 35 144–145, 208
Section 35(2) 144–145
Section 36 144–145, 208, 209
Section 37 144–145
Section 39A 145
South Africa, Copyright Act 1978
Section 12 208
Section 12(1) 209
Section 12(1)(b) 208
Section 12(3) 205, 208
Spain, Consolidated Text of the law on Intellectual Property, regularizing, clarifying
and harmonizing the Applicable Statutory Provisions (approved by Royal
Legislative Decree No. 1/1996 of 12 April 1996)
Article 32(1) 46, 80, 105, 109, 206
Article 32(2) 151, 227
Sri Lanka, Intellectual Property Act No 36, 2003
Section 11 143–144, 206
Section 11(3) 143–144
Section 12 143–144, 188, 206
Trinidad, Copyright Law, Act 8, 1997
Section 10 206, 208
Uganda, The Copyright and Neighbouring Rights Act 2006
Section 15 145, 188
Zimbabwe, Copyright and Neighbouring Rights Act (Chapter 26:05)
Section 31 188, 205
UK, Copyright, Designs and Patents Act 1988
Section 5B 54
Section 8 53
Section 10(1) 143
Section 11(2) 75
Section 29 145
Section 30 145
 Table of Legislation xix

Section 30(1ZA) 41, 145, 146, 208, 209, 210, 216, 221–222, 223–224
Section 30A 41, 220–222
Section 30A(1) 123
Section 30A(2) 41
Section 30(1A) 146
Section 30(2) 75
Section 30(4) 41
Section 64 110
Section 296A 41
UK, Copyright and Rights in Performances (Quotation and Parody) Regulations
2014, SI 2014/2356 208, 209, 220
US, Trademark Act 1946, as amended in Title 15, United States Code
Section 43(a) 58
US, Copyright Act 1976 as amended in Title 17, United States Code
Section 101 75, 143
Section 106A 200
Section 107 2, 62, 143, 144, 145, 146. 177, 178, 191, 193, 194, 196–7, 198–201, 203,
204, 207
Section 110[5](B) 192–3, 202
Section 201(b) 76
US, Berne Convention Implementation Act 1988 p. 58
US, Visual Artists Rights Act 1989 200–201
 Table of Cases

united kingdom

Ashdown v. Telegraph Group Ltd [2001] EWCA Civ 1142, [2002] Ch. 149 72, 146,
161, 210, 216
Associated Newspapers Group v. News Group Newspapers [1986] RPC 515 108
Baigent v. Random House Group Ltd [2007] EWCA Civ 247, [2007] FSR 24 177
Beloff v. Pressdram [1973] FSR 33 176, 177
Brighton v. Jones [2004] EMLR 26 143
EWCB Ltd v. Tixdaq Ltd [2016] EWHC 575 (Ch), [2016] RPC 21 82, 176
Fraser-Woodward v. BBC [2005] FSR 762 108
HMRC v. The Rank Group Ltd [2015] UKSC 48 84
HMSO v. Green Amps [2007] EWHC 2755 (Ch) 176
Hubbard v. Vosper [1972] 2 QB 84 108, 146, 216
Hyde Park Residence v. Yelland [2000] EMLR 363, [2001] Ch. 143 81, 130, 146,
176, 216
Hyperion Records v. Sawkins [2005] EWCA Civ 565, [2005] RPC 32 142
Ladbroke v. William Hill [1964] 1 WLR 273 142
Norowzian v. Arks (No. 2) [2000] FSR. 363 54
Pro Sieben Media v. Carlton Television [1999] FSR 610 130, 177
SAS Institute Inc v. World Programming Ltd [2013] EWHC 69 (Ch), [2013]
RPC 17 39
SAS Institute Inc v. World Programming Ltd [2013] EWCA Civ 1482, [2014]
RPC 8 39
Sillitoe v. McGraw Hill [1983] FSR 545 108
Stocker v Stocker [2019] UKSC 17 84
Time Warner Entertainment Co Ltd v. Channel 4 Television Corp Plc [1994]
EMLR 1 72, 176, 178
Walter v. Lane [1900] AC 539 142
Yemshaw v. London Borough of Hounslow [2011] UKSC 3, [2011] 1 WLR 433 84

xx
 Table of Cases xxi

united states

Authors Guild v. HathiTrust 755 F. 3d 87 (2d Cir. 2014) 196

Brammer v. Violent Hues Productions 922 F. 3d 255 (4th Cir. 2019) 197
Bridgeport Music v Dimension Films 410 F 3d 792 (6th Cir. 2005) 84, 149, 206
Cambridge University Press v Patton 769 F 3d 1232 (11th Cir. 2014) 146
Cambridge University Press v Albert 906 F 3d 1290 (11th Cir. 2018) 146
Campbell v. Acuff-Rose Music 510 US 569 (1994), 114 S Ct 1164 (1994) 143, 177, 194,
196, 217
Cariou v. Prince 714 F. 3d 694 (2d Cir. 2013) 196–197
Childress v. Taylor 945 F. 2d 500 (2d Cir. 1991) 143
Feist Publications v. Rural Telephone 111 S Ct 1282 (1991) 142
Field v. Google 412 F. Supp. 2d 1106 (D. Nev. 2006) 177
Fisher v. Dees 794 F. 2d 432 (9th Cir. 1986) 177
Fox News Network v. TVEyes Inc 883 F. 3d 169 (2d Cir. 2018) 197
Harper & Row, Publishers Inc v. Nation Enterprises 471 US 539 (1985), 105 S Ct 2218
(1985) 177, 198
Kienitz v. Sconnie Nation 766 F. 3d 756 (7th Cir. 2014) 197
LA News Services v. K-Cal TV Channel 108 F. 3d 1123 (9th Cir. 1997) 177
Oracle Am., Inc. v. Google, Inc. 750 F.3d 1339 (2014) 194
Oracle Am., Inc. v. Google, Inc. 135 S Ct 2887 (2015) 194
Sega Enterprises Ltd v. Accolade Inc 977 F. 2d 1510 (9th Cir. 1992) 194
Sony Corporation of America v. Universal City Studios., Inc., 464 US 417 (1984)
143, 194
Stewart v. Abend 495 US 207 (1990) 143
TCA Television Corp v. McCollum 839 F. 3d 168, 181 (2d Cir. 2016) 197
Thomson v. Larsen 147 F. 3d 195 (2d Cir. 1998) 143
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc,
425 US 748 (1976) 161
Wright v. Warner Books, Inc 953 F. 2d 731, 20 USPQ 2d 1892 (2d Cir. 1991) 198

european union

Case C-443/17 Abraxis Bioscience LLC C:2019:238 88

Case C-63/97 Bayerische Motorenwerke A.G. v. Deenik EU:C:1999:82 [1999]
1 CMLR 1099 183
Case C-210/13 Deckmyn v. Vandersteen EU:C:2014:2132 (CJEU, Grand Chamber),
[2014] ECDR 21 85, 123, 158, 221
Case C-349/85 Denmark v. Commission EU:C:1988:34 88
Case C-469/17 Funke Medien NRW GmbH v. Bundesrepublik Deutschland EU:
C:2019:623 (CJEU, Grand Chamber) 35, 36, 37, 161, 163
xxii Table of Cases

Case C-100/02 Gerolsteiner Brunnen GmbH & Co v. Putsch GmbH EU:C:2004:11,

[2004] RPC 39 (CJEU, 5th Chamber) 183
Case C-228/03 Gillette Co v. LA-Laboratories Ltd Oy EU:C:2005:177, [2005] FSR 37
(CJEU, 3rd Chamber) 183
C-5/08 Infopaq Int. v Danske Dagblades Forening [2009] ECR-I 6569 (4th
Chamber) 107
C-24/16 and C-25/16 Nintendo Co Ltd v Big Ben Interactive GmbH EU:
C:2017:724 98, 132
Case C-145/10 Painer v. Standard Verlags GmbH, EU:C:2011:239 (Advocate
General’s Opinion) 108, 114, 160, 210, 211
Case C-145/10 Painer v. Standard Verlags GmbH EU:C:2011:798, [2012] ECDR 6
(CJEU, 3rd Chamber) 47, 99, 160, 211
Case C-476/17 Pelham GmbH v. Hütter EU:C:2018:1002 (Advocate General’s
Opinion) 43, 70, 90, 105, 132, 212, 213, 215
Case C-476/17 Pelham GmbH v. Hütter EU:C:2019:624 (CJEU, Grand
Chamber) 4, 35, 36, 37, 47, 52, 70, 85, 88, 93, 99, 108, 126, 132, 139, 163,
211–214, 215
Case C-558/08 Portakabin Ltd, Portakabin BV v. Primakabin BV EU:C:2010:416
(CJEU, 1st Chamber) 183
Case C-406/10 SAS Institute Inc v. World Programming Ltd EU:C:2012:259 (CJEU,
Grand Chamber) 39
Case C-516/17 Spiegel Online GmbH v. Volker Beck EU:C:2019:16 (Advocate
General’s Opinion) 44, 60, 71, 74, 99, 108, 215
Case C-516/17 Spiegel Online GmbH v. Volker Beck EU:C:2019:625 (CJEU, Grand
Chamber) 4, 35, 36, 37, 44, 74, 75, 161, 163, 211, 214, 215

european court of human rights

Ashby Donald v. France App. No. 36769/08 [2013] ECHR 287 160
Handyside v. United Kingdom (1976) 1 EHRR 737 160
Karatas v. Turkey App. No. 23168/94 ECHR 1999-IV, IHRL 2880 162
Krone Verlag GmbH & Co KG v. Austria App. No. 34315/96 (2003) 36 EHRR 57 160
Magyar Helsinki Bizottság v. Hungary App. No. 18030/11 (ECHR, Gr Ch, 8
Nov 2016) CE:ECHR:2016:1108JUD001803011 89
Nilsen and Johnsen v. Norway App. No. 23118/93 (2000) 30 EHRR 878 160
VgT Verein gegen Tiefabriken v. Switzerland App. No. 24699/94 (2002) 34
EHRR 4 160
 Table of Cases xxiii

wto panel reports

WTO Appellate Body Report, Canada – Patent Protection of Pharmaceutical Products

(17 March 2000) WT/DS114/R 195
WTO Appellate Body Report, United States – Measures Affecting the Cross-Border
Supply of Gambling and Betting Services (20 April 2005) WT/DS285/AB/R 85
WTO Appellate Body Report, United States – Section 211 Omnibus Appropriations
Act of 1998 (2 January 2002), WT/DS176/AB/R 87
WTO Panel Report, United States – Section 110(5) of the Copyright Act 1976,
(15 June 2000), WT/DS/160/R 64, 65, 68, 87, 148, 152, 191, 192–3, 194, 195, 199, 202

france

Antenne 2 v. Spadem Cass 1ère Ch Civ, 4 July 1995, (1996) 167 RIDA 263 105
Douces Transes Cass., 12 January 1988 (1988) 137 RIDA 98 78
Cass. civ. I, 11 Dec. 2013, Com. com. électr. 2014, comm. no. 15, note Caron, P.I.
2014, no. 50, 65, obs. Lucas. 72
Chamouillet et autres v. Librarie Hachette, (1924) Le Droit D’Auteur 48 100
Dutronc et autres v. Sté Musicdisc, 10 May 1996, (1996) 170 RIDA 324 147
Edgar Rice Burrough Inc. v. Sté Anagramme Editions H. Veyrier et al TGI Paris, 30
Sept 1983, D. 1984 S.C. 289, Colombet obs. 30
Editions Musicales AB et Lucky Imprimerie v. Editions Durand, Cour d’Appel
Paris, 4th ch, 22 May 2002, (2002) 194 RIDA 320 113
Fabris v. Loudmer Cass. 1st Civ. 22 January 1991 100, 206
Fabris v. Sté Sotheby’s et autres (1990) 145 RIDA 339 (C d’A Paris) 206
Fabris v. Guy Loudmer Cass., Ass. plen., 5 Nov. 1993, (1994) 159 RIDA 320 105, 206
Ibels v. Grand Carteret, Tribunal de la Seine, in (1901) (Feb) Le Droit D’Auteur
18 100
Jirinovski v. Daenickx et autres TGI Paris 3e ch, 10 May 1996, (1996) 170 RIDA
315 75
Lauterbach & Kuhn v. Leuckart reported in (1910) (March) Le Droit
D’Auteur 37 100
Le Mauvais ceil, 13 Oct 1959, TGI Seine, (1961) (Apr) 31 RIDA 93 90
Le Monde v. Microfor Cass., Ass. plen., 30 Oct. 1987, (1988) 135 RIDA 78 207
Le Monde v. Microfor Cass. civ. I, 9 Nov, 1983, [1984] ECC 271 131, 207
Mr X, Promocom, FNAC v. Moulinsart, Cass. civ. I, 26 May 2011, (2011) 229 RIDA
468 105, 146
Maurice Lengelle, dit Tardy v. Libraire Larousse et autres (1988) 138 RIDA 297 146
Paris, 14e ch, 12 Oct. 2007, P.I. 2008, no. 27, 219, obs. A. Lucas 108, 147
Paris, 4th ch, 14 June 2000, Juris-Data no. 121281 206
xxiv Table of Cases

Société Raoul Breton v. Choudens, Gazette de Palais, 26 October 1934, (1935) (July)
Le Droit D’Auteur 81 100
Sotheby’s v. Fabris Cass. 1st Civ 22 January 1991 100
Sté le minotaure v. Fauvet et Fléouter, 1st Civ. 22 May 1979, (1980) 105 RIDA
166 147
Sté MH Films et autres v. Sté Dima Films et autres, TGI, 14 Sept 1994, (1995) (Apr.)
164 RIDA 407 100
Tardy v. Libraire Larousse Cass. 1st Civ. 13 April 1988; 22 Sept 1988, CA Paris, D. 1988 IR
258 100
TFI v. Antenne 2, 15 June 1989 100

germany

Blühende Landschaften (Blossoming Landscapes), BGH (Federal Court of Justice),

Case No I ZR 212/10, Nov. 30, 2011, 2012 GRUR 819 207
Germania 3, BVerfG (Federal Constitutional Court), Beschluss vom
29.06.2000 – 1 BvR 825/98, 2001 GRUR 149 147, 207
Metall auf Metall IV, BGH), Case No I ZR 115/16, April 30 2020 126, 213
Thumbnails I, BGH, April 29, 2010 – I ZR 69/08, BGHZ 185 207
Übernahme nicht genehmigter Zitate aus Tagebüchern und Briefen in eine
Biografie KG (Court of Appeal) Berlin, Dec. 21, 2001, 2002 GRUR-RR 313 147
Unauthorised Reproduction of Telephone Directories on CD-Rom [2002] ECDR 3
(BGH) 142

spain

Audiencia Provincial (Court of Appeal) Barcelona (Section 15), 3 May, 2010,

Westlaw JURisprudencia 2010, no. 162897 80
Audiencia Provincial (Court of Appeal) Madrid (Section 28), June 21, 2012, Aranzadi
Civil 2012, no. 1345 73
Commercial Court (no. 6) Madrid, Jan. 13, 2010, Westlaw JURisprudencia 2010, no.
149960 46
Commercial Court (no. 9) Madrid, April 19, 2010, Westlaw JURisprudencia 2010,
no. 163042 80

other jurisdictions

CCH Canadian Ltd v. Law Society of Upper Canada [2004] 1 SCR 339
[Canada] 142
 Table of Cases xxv

Global Yellow Pages Ltd v. Promedia Directories Pte Ltd [2017] SGCA 28
[Singapore] 142
Re Quotations in Students’ Text Books (1 January 1990) [1992] ECC 56 [Greece] 205
Société des Produits Nestle v. Nespresso Club Ltd C.A. 3425/17 (SC 7 August 2019)
[Israel] 196, 200
TCN Channel Nine Pty Ltd v. Network Ten Pty Ltd [2002] FCAFC 146
[Australia] 217, 218
The Chancellor, Masters and Scholars of the University of Oxford v Rameshwari
(Delhi High Court, 9 December 2016) 138
Zamacois v. Douville [1943] 2 DLR 257 [Canada] 108
 1

Introduction

Imagine an international instrument that does not merely oblige contracting parties to
confer rights on copyright holders (permitting only optional, narrowly circumscribed,
exceptions) but also mandates limitations. Imagine, too, that such an instrument
requires parties to permit use of material that has been taken from existing works,
irrespective of the purpose of so doing, but only on the condition that the use is in
accordance with fair practice. Imagine that such a mandatory limitation allows the
reuse of transformed versions of works, including parodies, and even the whole of
a protected work. Imagine, indeed, a regime of global mandatory fair use. Surely such
a fantasy, or ‘thought experiment’, is a pointless, ‘academic’ exercise, given the political
economy of international copyright and the dominant place within it occupied by the
so-called three-step test, which has long been thought to cast a cloud over the legitimacy
of the US fair use defence?1 Yes and no. Yes, it is pointless to imagine, but no, this is not
because it is impossible to achieve; it is pointless to imagine because there is no need to
imagine it. It already exists.2 This is precisely the effect of Article 10(1) of the Berne
Convention.3

1
For continuing discussion, see Justin Hughes, ‘Fair Use and Its Politics – at Home and Abroad’ in Ruth
L Okediji (ed.), Copyright Law in an Age of Exceptions and Limitations (Cambridge University Press
2017), ch. 8, 234–74.
2
See also S Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the
Digital Environment (2003) SCCR 9/7, 13: ‘It is possible, therefore, that Article 10(1) could cover much of
the ground that is covered by “fair use” provisions in such national laws as that of the United States of
America (USA)’ and Graham Greenleaf and David Lindsay, Public Rights: Copyright’s Public Domain
(Cambridge University Press 2018), 363: ‘there is scope for greater use of the flexibility allowed by
international copyright law for national laws to introduce relatively broad quotation exceptions . . .
which can extend to some transformative uses.’ Cf. Ruth L Okediji, ‘Towards an International Fair Use
Doctrine’ (2000) 39 Colum J Transnat’l L 75, 89, arguing that the US conception of fair use is not reflected
in international copyright law. Interestingly, in her review of exceptions under Berne, Article 10 is
mentioned only in passing – see 99–105 and fns. 133 and 149. Okediji later observes at 113: ‘Other exceptions
contained in the Berne Convention, such as the right under Article 10 to quote from a protected work, also
reinforce core values, such as freedom of speech, that inform the scope of the American fair use doctrine.’
3
Berne Convention on the Protection of Literary and Artistic Works 1886 (rev. Paris 1971) (‘Berne’). For the
current text of Berne, see https://wipolex.wipo.int/en/treaties/textdetails/12214 (accessed 20 January 2020).
2 1 Introduction

This much-neglected provision already mandates global fair use.4 This is

a proposition that will seem shocking to some, on both sides of copyright’s polarised
political spectrum. To so-called ‘maximalists’, global mandatory fair use is unthink-
able because US fair use is itself legally dubious, in the light of the international
requirement that exceptions must be confined to certain, special cases. Section 107
of the US Copyright Act 1976 is only maintainable because there is a body of
jurisprudence that transforms the open norm of ‘fair use’ into a series of reasonably
clearly understood and well-defined instances. Adoption of such an open norm by
other jurisdictions, without such jurisprudence, fails to offer certainty as to the
limited scope of the limitation that international law appears to demand. At the
opposite end, that of the ‘copy-left’ movement, the proposition cannot be correct,
because, were it so, the international acquis would not be as appalling as it is taken
to be.
However, while the ‘copy-left’ movement may be right to highlight the limitations
the Berne Convention imposes on the room left to adapt copyright to the digital
environment, not every aspect of the Convention should be regarded as a source of
dismay. Article 10(1) is just such a provision. On its face, it requires contracting
parties to permit quotation from a work, and is subject to a series of conditions, the
most important of which is that such quotation be in accordance with ‘fair practice’.
Importantly, such ‘quotation’ must be permitted whatever the purpose of the use, as
long as the material taken is proportionate to the purpose of its user. We suggest that
the term ‘quotation’, understood in terms of its ordinary use across the entire cultural
sphere, describes a broad range of practices of reuse of copyright-protected material,
including in some situations the whole of that material. For sure, the ‘fair quotation’
exception does not encompass every act that currently falls within the US ‘fair use’
doctrine – in particular, private copying and certain technological uses.5 However, it
does require that many transformative expressive uses be permitted if the use is fair,
proportionate and appropriately attributed.
In this book, we explain and justify the proposition that Article 10(1) of Berne
constitutes a global mandatory fair use provision. It is global because of the reach of
Berne qua Berne and qua the Agreement on Trade Related Aspects of Intellectual
4
This was recognised by one of its key proponents, the Swedish judge Torwald Hesser. He explained the
proposal expanded the quotation to ‘general application, but restates it in terms compatible with the
American doctrine of fair use’: see Torwald Hesser, ‘Intellectual Property Conference of Stockholm,
1967: The Official Program for Revising the Substantive Copyright Provisions of the Berne
Convention. The Fifth Annual Jean Geiringer Memorial Lecture on International Copyright Law’
(1967) 14 Bull Copyright Soc’y 267, 275, fn. 22. For discussion as to why it has been neglected, see
Lionel Bently and Tanya Aplin, ‘Whatever Became of Global, Mandatory, Fair Use? A Case Study in
Dysfunctional Pluralism’ in Susy Frankel (ed.), Is Intellectual Property Pluralism Functional? (Edward
Elgar 2019), ch. 1.
5
In turn, therefore, these additional limitations do need to be justified under other parts of the Berne
Convention, especially Article 9(2), as well as Article 13 of the Agreement on Trade Related Aspects of
Intellectual Property Rights 1994 (‘TRIPS’) and Article 10(2) of the WIPO Copyright Treaty
1996 (‘WCT’).
Another random document with
no related content on Scribd:
hate.’[835] The attacks on Washington, which society ascribed to the
influence of Jefferson, made his position all the more unpleasant. Articles
signed ‘Democrat’, or ‘Veritas’ foully assailing the President appeared in
Federalists papers. The worst of these, Jefferson thought, were written by
his enemies for the purpose of embittering decent men against his party. It
was even whispered about that he was the author of the ‘Veritas’ letters, for
Genêt, in an attempt to impress his Government with his own power, hinted
that Jefferson had written them. The latter talked it over with Tobias Lear,
the President’s secretary, and made an investigation of his own, concluding
that the author was William Irvine, a clerk in the Comptroller’s office. ‘I
have long suspected this detestible game was playing by the fiscal party to
place the President on their side,’ Jefferson wrote.[836] It was manifestly
absurd, but society preferred to believe it.
Unpleasant as was the attitude of the fashionable circles, it was not so
offensive to Jefferson as the constant quarreling and intriguing in official
circles. He complained that he and Hamilton were always against each
other like cocks in a pit. He was never fond of futile disputation. His own
views were fixed, as were those of his opponent. He was too much the
philosopher to enjoy argumentation that accomplished nothing. Long before
that summer he had wanted to retire, and, as we have seen, had only been
dissuaded by the importunities of Washington, but he was now intolerably
tired of it all. Acknowledging a letter from a friend in Paris, he had written,
in reference to the ‘oppressive scenes of business,’ that ‘never was mortal
more tired of these than I am.’[837] Three months earlier, he had promised
his daughter Martha that the next year they would ‘sow [their] cabbages
together.’
By July the situation was becoming unendurable. It was about this time,
when he was writing his notes to Hammond, the British Minister, who was
an intimate friend of Hamilton’s, that Oliver Wolcott, the mere shadow of
his chief, was bitterly complaining of Jefferson’s ‘duplicity of character’ in
treating Hammond harshly.[838] These were the notes to which John
Marshall gave the highest praise in his ‘Life of Washington,’ but the
observation of Wolcott reflected the tone of society.
On July 31st, the philosopher-politician seated under his plane trees
might have read an attack upon himself in Fenno’s paper charging him with
crimes against his country committed in such a way as ‘to keep him out of
reach of the law.’[839] That very day he sat down at his desk to write his
resignation. Six days later, Washington drove out to Jefferson’s country
place, and out on the lawn sought again to dissuade his Secretary of State
from his purpose. But he had had enough. With some bitterness, he told the
President that ‘the laws of society oblige me always to move exactly in the
circle which I know to bear me peculiar hatred ... and thus surrounded, my
words are caught up, multiplied, misconstrued, and even fabricated and
spread abroad to my injury.’[840] Convinced that Jefferson was unshakable,
Washington discussed, with him, a possible successor. He favored Madison,
but feared he would not accept, and then asked Jefferson’s opinion of Jay
and Smith, both rabid Hamiltonians. Jefferson asked him if he had ever
thought of Chancellor Livingston. He had—but Hamilton was from New
York. What did Jefferson know about Wolcott? ‘I have heard him
characterized as a very cunning man,’ was the dry reply. It was finally
agreed that Jefferson should remain on until January.[841]

XIII

August was a dreadful month in Philadelphia, a dry, deadening heat

making the days and nights unbearable. Any one walking near Water Street
was sickened by the fetid smells from the stinking wharves. Politically
conditions were as depressing. The bitter party struggle went on. Even the
heat and smells could not give it pause. Bache’s paper published a letter
describing Viscount de Noailles as ‘a man who was employed by the late
King of France to bribe the members of the Convention ... and afterwards
ran off with the money’; and the next day the nobleman, swords and pistols
in his eyes, appeared to demand that the editor publish a denial and furnish
the name of the author of the article. Thinking discretion the better part of
valor, Bache gave ‘Mr. Pascal, the Secretary of Genêt,’ as the author and
society expected a French duel—to be disappointed.[842] Genêt was
hurrying off to New York to accept an ovation and the Hamiltonians began
to lose faith in Washington, because he sat ‘with folded arms’ and let the
Government ‘be carried on by town meetings.’ The Federalists were
concluding that town meetings were a vicious influence. Meetings of
Chambers of Commerce were different.[843] But it was reserved for Boston
to give the Federalists their greatest shock when at the masthead of the
French frigate La Concorde, appeared the names of eleven staid men of the
city placarded as ‘aristocrats,’ and unfriendly to the French Republic. The
charge was true, but here was something that smacked of the Terror in
Paris. With the town seething with righteous wrath, a committee boarded
the vessel and demanded the removal of the placard. The officers expressed
surprise that it was there, apologized, removed it. But the opportunity was
too good to be lost. ‘I wish to know what is to be their [the eleven citizens’]
punishment, and who is to execute it,’ wrote ‘A Free American’ in the
‘Centinel.’ ‘Are they to suffer by the lamp post or by the guillotine here, or
are they to be sent in irons to Paris to suffer there?’[844] Viewing the scene,
as became a Cabot, from the vantage-point of aristocratic aloofness, George
Cabot was alarmed. He wrote King of his ‘amazement’ at ‘the rapid growth
of Jacobin feeling.’ Why had not the truth concerning France been told the
people? Had she not ‘obstructed our commercial views?’[845] Had Cabot
unbent to the reading of the ‘Independent Chronicle’ of his city he might
have understood the cause of the ‘growth of Jacobin feeling.’ It fairly
teemed with the French and their Revolution. ‘In case of distress whence is
our succor to arise?’ it demanded. ‘Is there one among the combined
powers contending against France on whose cordiality we could
depend?’[846] Ask the soldier of our Revolution who helped win American
independence. ‘Who were the men who marched in columns to the capture
of Cornwallis—or whose navy thundered the music of that defeat?’[847]
Then, with September, the reaper of Death stalked through the streets of
Philadelphia.

XIV

It began with the filth and sickening smells of Water Street and spread
like the deadly gas of modern battle-fields over the city. The poor of the
congested quarters near the water-front fell like flies in winter. Soon it
spread to the best residential sections. The evident inability of the
physicians to cope with the disease increased the terror. Washington was
ordered out of the city and hastened to Mount Vernon, and Knox took to
precipitate flight.[848] Soon all the great houses were closed, and every one
who could afford it abandoned his business and fled from the stricken city.
Soon half the houses were abandoned, and they who remained locked their
doors, closed the windows, and lived in complete isolation as far as
possible.[849]
 Day and night the death-carts rumbled through the town and a covered
wagon was kept busy conveying the sick to Bush Hill Hospital in the
country—a dismal wagon with a bed, drawn by a weary horse.[850] With
half the stores closed, the upward bound in the cost of provisions intensified
the distress of the poor.[851] The streets were as those of a dead city, no one
caring to brush against the black robe of the grim reaper that was taking
such an appalling harvest. One observer looking down the street one day
could not see a single soul.[852] Terror seized upon every one. Lifelong
friends evaded one another like guilty creatures. Even the families of the
stricken fled, leaving the suffering to die in barbarous neglect.[853] One man
determined to remain in the city, but passing twelve corpses in the streets,
he summoned a carriage and fled in horror.[854] Only the negroes seemed
immune, and ‘much to their honor, they ... zealously contributed all in their
power.’[855] And to accentuate the horror, the rumble of the death-cart, the
cries of the dying, the groans of the abandoned, were mingled with the bold
footsteps of the robbers making their way from one deserted mansion to
another.’[856] Panic everywhere. A toothache, and the victim was on the
verge of collapse from fright—it was the fever.[857] Timothy Pickering had
a twinge, and off he hastened to the doctor to be bled, put on a starvation
diet, and sent on long horseback rides into the country ‘for pure air.’ Many
died literally from fear, and the horror of the scenes and sounds.[858]
When the death toll mounted from scores to hundreds, from hundreds to
thousands, the neighboring villages and towns met to devise plans for
keeping the Philadelphians away, and one of these threatened to receive
them ‘at the point of the bayonet.’[859] The hospitals were packed—two
hundred Irishmen in the Naval Hospital alone.[860] Meanwhile the
physicians were fighting courageously, desperately, but blindly and futilely.
Fisher Ames, who had a malicious humor, was amused at their plight and
methods. ‘All vouch success—none have it,’ he wrote, ‘and like Sangrado’s
patients they die for want of bleeding and warm water enough.’ One doctor
treated the disease as a plague—‘his patients died’; he adopted Rush’s
methods—‘they died.’ He hit upon a combination of the methods—‘all
died.’[861] Bache filled his columns with cures and suggestions, but the
death-rate increased frightfully. It was impossible to keep a record. On
October 20th, Wolcott wrote Washington that ‘more than four thousand
persons have died,’ and the next day Pickering wrote him that ‘about three
thousand have died.’[862] As many as 517 were buried in the Potter’s Field
between August 19th and October 1st.[863]
The streets deserted, houses closed, death-like silence but for the rattle of
burial wagons and the groans of the stricken, the tread of robbers in the
night—the horrors deepened. No one understood the reason why—no one
but Alexander Graydon, who thought it a grim visitation of God to purge
the foul hearts of the Philadelphians because of their enthusiasm for French
democracy. One of the democrats had fallen early, when Dr. Hutchinson
paid his profession the honor of dying in the harness. One day he met a
friend in the street and urged him to take his family and leave. Was the
Doctor going? No, he felt it his duty to stay and serve the sick. Was he not
afraid? Well, he thought he would probably fall a victim, and bade the
friend farewell. A few days later he was dead—the greatest hero of the
scourge.[864]
Meanwhile, Jefferson, living in the country, thought it his duty to go to
the city every day, and did. And then Graydon’s God made a blunder that
must have made the angels weep—he struck Hamilton down with the blow
that must have been intended for the Jacobin Jefferson.
Living two miles out in the country, Hamilton was stricken violently.
Having given thought to the disease, he had conceived that cold water
would be effective. He summoned Dr. Stevens and many attendants—‘the
method being expensive’—and through cold water and bark he was cured.
[865] ‘Colonel Hamilton is ill of the fever but is recovering,’ Jefferson wrote
Robert Morris who had taken to flight.[866] By the time the country knew of
Hamilton’s peril he had recovered, and, with his family, had hastened to the
Schuylers at Albany.
With the approach of winter the disease receded—died out.

XV

Even so, there was no disposition on the part of Congress to meet in the
gloomy city, and November found the Government established temporarily
in Germantown. The statesmen had to accommodate themselves to
wretched quarters. Jefferson ‘got a bed in the corner of a public room in a
tavern,’[867] but it mattered little to him, for his time was short. As late as
December 22d, Washington made a final effort to persuade him to remain.
‘I hope it will be the last set at me to continue,’ Jefferson wrote Martha.[868]
The publication of his correspondence with both Genêt and Hammond
had raised him in the esteem of his worst enemies. No one then or since has
pretended to the discovery of undue partiality in the treatment of the
offenses of the two nations. In the field of foreign relations the papers of
Jefferson during this period were as distinguished as those of Hamilton in
the sphere of finance.
But he was to submit to Congress a final Report on Commerce which
was to cut short his popularity with his enemies. ‘The letting loose of the
Algerines on us, which was contrived by England, has produced a peculiar
irritation,’ he wrote his daughter. ‘I think Congress will indemnify
themselves by high duties on all articles of British importation.’[869] Here
he was referring to his Report.
In this notable document, which his party instantly adopted as a chart by
which to steer, he laid down some broad general propositions which called
for retaliation on England. If a nation placed high duties on our products,
we should place high duties on its products, even to excluding articles that
came into competition with our own. Where a nation prohibited American
merchants or agents from residing in parts of its domain, we could retaliate
with propriety. If it refused to receive in our vessels any products but our
own, we could adopt a similar regulation as to theirs. If it declined to
consider any vessel as ours not built in our territory, the rule could work
both ways. All this was accompanied with a report on our relative
commercial intercourse with both England and France. The purpose was in
harmony with the policy for which Madison had fought from the beginning.
[870]
Leaving this as a legacy to his party, Jefferson prepared for his return to
his beloved Monticello. The executive branch of the Government was to be
turned over to the enemy, for no Jeffersonian considered Randolph, who
succeeded Jefferson, as a party man. Better a complete separation and open
opposition than a further pretense at an unworkable coalition of the two
parties. And home was calling imperatively. His private affairs were in need
of attention. His ten thousand acres had been neglected. His hundred and
fifty-four slaves had not been properly directed. And there, on his serene
hilltop, were his daughters, his grandchildren, his friends the books, the
trees, the view over the valley at sunrise.
Bidding farewell to his friends and making ceremonious calls upon his
foes, he set forth in his carriage for the southward on January 5th. He was
going home. Soon the house he had planned on the hill would be in view,
soon the negroes would be running down the hill road to meet the carriage,
to touch his clothes, to kiss his hands. Soon he would be sitting at his own
fireside—in rooms sacred to the memory of the woman for whom the house
was built.
 CHAPTER XI

HECTIC DAYS

S CARCELY had Jefferson reached his quiet hilltop when Madison

submitted the resolutions based upon his chief’s Commercial Report,
and the English party was instantly in arms. These resolutions were
more political than commercial and were clearly aimed at England in
retaliation for her refusal to enter into a commercial treaty. The resentment
against the English policy had been increasing rapidly, even John Quincy
Adams finding the French ruling powers more favorable to the Western
Republic than was the Ministry of Pitt.[871] Only in the commercial centers
was there a disposition to suffer long and be kind for business reasons. The
Chambers of Commerce were on their toes hissing; the Democratic
Societies shouldered arms and marched to the tune ‘Ça Ira.’ The galleries of
the House filled.
The Federalists met the Madison attack with a counter-charge from
William Smith of Charleston, in an elaborate recitation prepared for his
delivery by Hamilton. The Carolinian entered the fray with the breezy
confidence born of the knowledge that a master mind was behind his
utterances. No one was deceived. ‘Every tittle of it is Hamilton’s except the
introduction,’ Jefferson wrote Madison.[872] The strategy of the Smith-
Hamilton speech was to divert attention from the political to the
commercial phase, by showing that our business relations with England
were more valuable than those with France. The next day Madison boldly
proclaimed the political purpose of the resolutions.[873] Thereafter, with
spectators packing the galleries, and almost suffocating the legislators by
crowding onto the floor of the chamber, the forensic gladiators fought with
more ferocity than finesse. Ames sowed trouble for himself with the
amazing declaration that ‘there is an amicable disposition on the part of
Great Britain.’[874]
The English are ‘as angry at us as we are at them,’ said Dexter, warning
of war. ‘Ridiculous!’ exclaimed Madison. ‘What would Britain gain by
war? Would it employ her starving manufacturers’ or ‘give employment to
the vessels that formerly imported luxuries to America?’[875] But why these
strange accusations against England? asked Ames. What are the specific
facts? Facts? thundered Giles. She has ‘subjected our vessels ... to seizure
and search’; she ‘prevents our vessels from conveying to our friends and
allies goods not contraband’; she is responsible for ‘letting loose the pirates
of the Barbary States upon our commerce.’[876] Tracy, Hamiltonian, could
see no advantage we had received from the French treaty. At any rate,
added Boudinot, we should ‘not over-value the friendship of France.’[877]
What, roared Giles, ‘if a prophet in 1778 had foretold that in 1794 that
question would have been triumphantly put in an American Congress ...
would not the prophecy have been deemed an imputation on the American
character?’
But—blandly from Ames—what are our grievances against England? ‘Is
it necessary,’ shouted Nicholas, Jeffersonian, ‘to tell the gentleman of the
hostilities of the savages on the frontier, of the murder of our citizens, and
the plunder of our settlements?’[878] ‘Only a set of resolutions on paper,’
sneered Dayton. Is that our only or best weapon? Yes, answered Madison,
‘we can make use of none against Great Britain more effectual than
commercial weapons.’[879]
Thus day by day the debate dragged on. ‘What recent injuries?’ inquired
Samuel Smith of Maryland, merchant. ‘The recent proclamation respecting
the stoppage of vessels of neutral nations, with all such excepted but the
United States,’ hotly answered Madison. ‘Better accept excuses than fight
battles,’ warned Ames. Instantly Giles, whose passions slept with one eye
open, was on his feet protesting against the idea ‘that the mere exercise of
our rights as an independent government is equivalent to a declaration of
war.’
Thus the bitterness intensified, with personalities entering the
discussions. One day the venerable Abraham Clark of New Jersey, signer of
the Declaration of Independence, sat open-mouthed while Smith of
Charleston reiterated his views, and then, trembling with age and
infirmities, declared that ‘if a stranger were to come into this House he
would think that Britain has an agent here.’ Cries of ‘Order!’ ‘Order!’
Smith replied with a sneer at the old man’s garrulity and years. With
passions at white heat, the debate was postponed until the first Monday in
March.
Meanwhile, out of doors the fight was being waged with spirit. In
Boston, the ‘Centinel,’ organ of the Federalists, was making scurrilous
attacks on Madison. He had been the counselor and abettor of Genêt—a
corrupt tool of France since the embassy of Gerard.[880] He was the agent
of France,[881] the tool of anarchists,[882] and he could have learned nothing
about commerce in Virginia ‘where no other commerce is transacted than
buying and selling of negroes.’[883]
To these attacks the Jeffersonians responded with a call for a town
meeting to act on the Madison Resolutions. Before a great crowd at the Old
South Church a dramatic forensic scene was staged, the eloquent Jarvis
leading for the Resolutions, the brilliant young Harrison Gray Otis for the
opposition, until darkness forced an adjournment till the morrow when it
was renewed until afternoon, when the question was indefinitely postponed.
Otis had won the only victory possible in successfully filibustering against a
vote.[884] At Portsmouth, New Hampshire, a mass meeting at the State
House endorsed the Resolutions,[885] and to the astonishment of Madison a
meeting was held in New York City at the instance of the Jeffersonians.[886]
In Philadelphia, with Hamilton looking on from the wings, the merchants
met to denounce the Resolutions, but after a demonstration in their favor the
attempt to get a vote upon them was abandoned.[887]
But it was in Charleston that the rage of the populace over the pro-
English utterances of Smith and Ames assumed the most virulent form.
Men cursed them in the streets, denounced them in resolutions, burned them
both in effigy. Bache, then the leading Jeffersonian editor, deprecated the
burning. ‘Sorry I am to see these English fashions adopted by free-born
Americans.’[888] The cynical Ames’s sense of humor left him unscorched
by the flames. ‘I am willing to have it believed,’ he wrote, ‘that as I come
out of the fire undiminished in weight, I am pure gold.’[889] But it was more
serious to Smith, for it was his constituents who consigned him to the fire.
The publication and circulation of the speech he had not written had
deepened the resentment. How much hotter might have been the flames had
the mob foreseen the printing of an English edition with the boastful
prefatory statement that it had driven the author of the Declaration of
Independence from office![890] Indeed, the fortunes of the fight had turned,
and the Hamiltonians, lately jubilant over Jefferson’s embarrassment with
Genêt, had troubles of their own. Wolcott was complaining that Hammond,
the British Minister, was ‘weak, vain and impudent,’[891] and even Ames
was alarmed because he ‘rails against the conduct of our Government, not
ore rotundo, but with a gabble that his feelings render doubly
unintelligible.’[892] By their speeches against Madison’s Resolutions, the
Federalists had inextricably entangled themselves with British policies, and
it was the chatter of the streets and the gossip of the press.

‘From the speechification of Sedgwick and Ames

Some might think that they both had drank deep of the Thames,
For “our dear Mother Country,” the former stands forth
In strains that were worthy a pupil of North.’[893]

It was in this state of public opinion, and with Ames wailing that
England was ‘driving us to the wall,’ that the news from the West Indies
aroused the people to a white heat of fury and put them on the march.

II

In compliance with an Order in Council, the British had seized more

than a hundred vessels and held them for condemnation. So appalling were
the possibilities that even Bache made the announcement in terms of
measured moderation.[894] Ames no longer mentioned the ‘amicable
disposition’ of the British, or inquired with a childlike innocence what
England had done to offend the Americans. With war seemingly inevitable,
the Hamiltonians were driven to the simulation of a warlike mood. The
spirit of ‘76 burst into flames.
Under such conditions the debate on the Madison Resolutions was
resumed. When the sneer of Ames and Parker that they bore ‘the French
stamp’ was loudly hissed by enraged visitors in the galleries, the Federalists
took to cover.[895] Extreme provocative measures were introduced and
pressed. The demand for the sequestration of British debts led to vitriolic
exchanges. ‘That king of sea robbers!’ That ‘Leviathan which aims at
swallowing up all that floats upon the ocean!’ Boudinot, Hamiltonian,
pleaded for ‘calmness.’[896] Dexter denounced the proposal as the counsel
of dishonor. ‘English tool!’ roared the raging streets.
Then came the Non-Intercourse Act, with the Federalists, off their high
horse, literally begging for ‘calm deliberation.’ Even Sedgwick was in an
importunate mood; but the measure was pushed with all the more
determination and passed with most of the Hamiltonians against it.[897]
Even when Fitzsimons fell into line, he was trounced by the press with the
open charge that he had held out until his own brig ‘had departed to our
good English friends at Kingston ... with a cargo of flour.’[898] Clearly the
Hamiltonians had to conciliate the public in some way, and Sedgwick came
forward with a plan for an army; and Madison denounced it as ‘the old trick
of turning every contingency into a resource for accumulating force in the
government.’[899]
Out in the streets the people were on a rampage. Phineas Bond, the
British Consul in Philadelphia, reported to Grenville that the Americans
even resented the Orders in Council.[900] Worse still, he and Hammond the
Minister could not even walk the streets without being subjected to
‘menaces from knots of street politicians.’ The consul in Baltimore had
been forced by threats of violence to take refuge in the capital.[901]
The democrats followed up every advantage. Where was the spirit of
‘76? ‘Shall a paper system hold you in bondage?’[902] England would not
dare, declared the Democratic Society of Philadelphia, but for the
declaration of neutrality, interpreted as evidence of American cowardice.
[903] And perhaps Smith of Charleston had given the English a wrong
impression. Had he published his speech against the Madison Resolutions
to show Americans he ‘despises their opinion’ or ‘to prove to Great Britain
that he has been a faithful friend?’[904]
Under such encouragement some French sailors in American ports
became cheeky and chesty. In a Charleston theater one of these having
insulted a woman and been roughly handled, hastened to his ship with the
story of an assault by English sympathizers. His fellows sallied forth to
avenge the insult, making accessions to their ranks on the way by spreading
the fictitious story of the incident. Armed with cutlasses, they descended on
the theater as the people were pouring out, in an indiscriminate attack which
included the wrecking of some carriages and the wounding of a few horses.
The alarm bells were rung, and citizens rushed to the battle.[905]
Everywhere people were steeling themselves for war. In New York a
mass meeting, held at the Coffee-House[906] was belittled by Noah Webster,
the Hamiltonian editor. Both he and Fenno were clamoring for negotiations.
‘Why, to be sure, we must negotiate,’ sneered Bache. ’...The honor, the
interest, the welfare of the United States are locked up in the funding
system.’[907] Everywhere citizens were helping with fortifications. In New
York the students of Columbia (King’s) formally tendered their services,
[908] the house carpenters gave their labor,[909] and other trades followed.
The country boiled with excitement. The Nation was rushing into war.
Hamilton and his associates put their heads together to devise a method to
prevent it.

III

The rage of the people could be held in check only by a definite action
looking to the righting of wrongs, and since the last thing the commercial
interests wanted was war, the only thing left was negotiation. Even though
this finally failed, it might postpone the fatal day. The Federalists, in
control, instinctively turned in the crisis to Hamilton as the safest man to
negotiate. He above all was interested in preserving peace with England at
all costs. His whole political system rested on the supremacy of the
commercial element. He was the father of the national credit and it would
collapse without the revenue from the imposts, the greater part of which
came from English trade.
In the beginning no other name was considered in the Federalist
conclaves for ambassador. ‘Who but Hamilton would perfectly satisfy all
our wishes?’ wrote Ames.[910] A correspondent of Rufus King was writing
about the same time that Hamilton’s selection would give general
satisfaction because he had ‘the full confidence of the merchants and the
people at large’;[911] and King was replying that he wished Hamilton ‘may
speedily go,’ since ‘then there would be some hope of our remaining at
peace.’[912]
In truth, Hamilton’s relations with England’s representatives in America
had been intimate. In the days of the agency of Colonel Beckwith, before a
Minister was accredited, an intimacy had been established with Hamilton so
close that Professor Bemis concludes that never afterward was Jefferson
‘able to conduct his office with thorough independence.’[913] That intimacy
continued until the arrival of the Minister, and in the meanwhile Hamilton
figured in the Agent’s confidential reports as ‘No. 7.’[914]
The Minister, with more assiduity than ability, was George Hammond, a
young man of twenty-seven, who immediately established similar relations
with the Secretary of the Treasury. Soon we find him reporting to Lord
Grenville that he preferred to make most of his communications privately to
Hamilton and to have no relations with Jefferson that were not absolutely
necessary.[915] It is fair to say that in every crisis he found the opportunity
to confer with the Secretary of the Treasury.[916] All this was known, in a
general way, to the commercial element when it was urging Hamilton’s
appointment as ambassador, and suspected by the people at large. Thus,
when the rumor of his prospective selection spread, there was a roar of
protest. ‘The object of a special embassy might as well be answered by
commissioning Lord Grenville or Mr. Pitt,’ wrote Bache.[917] In the
meantime, Senator James Monroe had formally protested to Washington
against the appointment. The opposition was due to the reason set down in
the memorandum of Hamilton’s warm friend, Rufus King: ‘Colonel
Hamilton did not possess the general confidence of the country.’[918]
It is easy to understand how hard it was for the Federalists to abandon
their chief. Thrill enough there is, in the thought of Hamilton and Pitt seated
across the table in one of the dingy little rooms in Downing Street—so
similar in precocity, brilliancy, and genius.
One evening four men sat in the candle-lit room of Rufus King in
Philadelphia. There was Oliver Ellsworth, a powerful figure before the
Senate and Bar; George Cabot, in some respects a saner leader than
Hamilton; Caleb Strong, whose strength was in common sense and
toleration; and King, who was a monumental figure. It was agreed to make
an effort for Hamilton, and Ellsworth was designated to call at the Morris
mansion for the purpose. Washington did not commit himself. Whereupon
Robert Morris was sent to reënforce the plea, but on learning that not only
Hamilton and Jefferson were being considered, but Jay as well, he sensed
the situation and veered to Jay. The result was that Jay was summoned and
offered the post. He took it under consideration. The next day Jay was
overrun with visitors. Hamilton urged his acceptance, having in the
meanwhile written Washington withdrawing his own name from the list of
aspirants.[919] King, Strong, Cabot, and Ellsworth followed, demanding
Jay’s acceptance as a duty. While Jay was deliberating, his party was
thrown into a panic with the rumor that Madison was a possibility, and that
Monroe had encouraged a hope in Pierce Butler with a promise of the
support of the Jeffersonians. Jay accepted.

IV

No one but Hamilton could have been more obnoxious to the

Jeffersonians than John Jay. He was now verging on fifty, with a notable
career behind him on which to base an opinion of his bias. In appearance he
was amiable but unimpressive, with nothing in his manner to indicate his
intellectual power.[920] Mrs. Adams’s daughter was impressed with the
‘benevolence stamped in every feature.’[921] Of commanding stature, he
was slender, albeit well formed. He wore his hair down a little over his
forehead, tied behind, and moderately powdered. Coal-black, penetrating
eyes increased his pallor, for he was never robust. Kindly, gracious, courtly
in social intercourse, he was sternly uncompromising where his integrity
was involved. Politically, he was an aristocrat, with contempt for
democracy, and an incurable distrust of the people. This, with his
predominant devotion to the commercial interests, fixed his status among
the Federalists. Upon the principles of the French Revolution he looked
with abhorrence. ‘That portion of the people,’ he once wrote a friend, ‘who
individually mean well never was, nor until the millennium will be,
considerable.’ Others thought the masses too ignorant to act well, but it was
reserved for Jay to say that they did not even mean well.
Few Americans then living were better qualified by experience for a
diplomatic mission. At Madrid he had shown rare tact, infinite patience, and
dignity in defeat, and he had helped negotiate the treaty of peace. It was
unfortunate that he had, for a while, been Secretary of Foreign Affairs, for
he had then made a secret report to Congress holding England justified in
clinging to the western posts.[922] That secret was out.
In writing Jefferson of the appointment, Madison gave no indication of a
probable opposition to Jay’s confirmation. ‘The appointment of Hamilton
was likely to produce such a sensation,’ he wrote, ‘that to his great
mortification he was laid aside and Jay named in his place.’[923] But behind
closed doors the Senate engaged in a bitter battle over the confirmation. The
opposition made much of the impropriety of naming a Justice of the
Supreme Court, submitting in a resolution ‘that to permit Judges of the
Supreme Court to hold at the same time other offices emanating from and
holden at the pleasure of the President is destructive of their independence,
and that tending to expose them to the influence of the Executive is ...
impolitic.’ According to Bache, the majority of the Senate subscribed to this
reasoning and the scruples of enough for confirmation were overcome only
by the assurances that Jay’s ‘delicacy and sense of propriety would certainly
induce him to resign his office.’ Eight persisted in opposition on the
supposition that ‘more was to be feared from Mr. Jay’s avarice than was to
be hoped from his delicacy or sense of propriety.’[924] By the suspicious
Adams, who witnessed the struggle from the chair, the opposition was
ascribed to the fear that a successful negotiation would interfere with plans
for the elevation of Jefferson to the Presidency. On the surface, Jay’s
indifference to the navigation of the Mississippi, his mythical monarchical
principles, his attachment to England and aversion to France, appeared
explanatory of the hostility.[925]
The confirmation shifted the attack from the Senate to the streets. The
Jeffersonians resented it as a purely partisan appointment, but the
opposition ‘out of doors’ went deeper. Could no one be found outside the
little coterie of office-holders? Was it the intent ‘that certain characters
should have a monopoly of power?’[926] The Democratic Society of
Philadelphia bore down heavily on Jay’s justification for the holding of the
posts.[927] A frontiersman from western Pennsylvania denounced the
appointment as evidence of indifference to the interest of the western
country.[928] After Jay’s report on the posts would it not be answer enough
for Lord Grenville to quote Jay’s own opinion ‘on file in the Secretary’s
office’?[929] The Democratic Society of Washington, Pennsylvania, thought
that ‘no man but Washington ... would have dared ... to have insulted the
majesty of the people by such departure from any principle of republican
equality.’[930]
Disregarding the clamor of the ‘rabble,’ Jay had made preparations for
an immediate departure, and without tendering his resignation as Chief
Justice. The instructions he carried had been prepared almost exclusively by
Hamilton.[931] So intimately was the economic policy of the Federalists
connected with the relations to England that these instructions had been
determined upon at a secret conference of Federalist leaders dominated by
their chief.[932] Thus, provided with instructions from a party conference,
Jay set sail on May 12th from New York. A thousand people assembled at
Trinity Church to escort him to the ship and give three cheers as he went
aboard. A salute was fired as he passed the fort. But, wrote Greenleaf, ‘the
militia had refused parading to honor the departure of our extraordinary
Minister.’[933]
If the Federalists were pleased, the Jeffersonians were complacent and
Madison wrote that Jay’s appointment ‘is the most powerful blow ever
suffered by the popularity of the President.’[934] But the Federalists
regained confidence after several months of unpopularity and depression—
and it was now the Jeffersonians’ time to suffer again—for the Whiskey
Boys were up in western Pennsylvania.

The Whiskey Boys of the ‘insurrection of 1794’ have been pictured as a

vicious, anarchistic, unpatriotic, despicable lot—and they were nothing of
the sort. These men were doing more for America than the speculators of
Boston and New York, for they were hard-working conquerors of the
wilderness, felling the forests, draining the swamps, redeeming the land for
the cultivation of man. Fortunately for America, they were a tough set.
These rough men in coarse raiment and coonskin, with muskets on their
shoulders, were not arrayed for a pose. They fought their way against
savage forces, subduing Nature while warding off the blows of the
tomahawk. Their lot was hard. No luxuries in the log cabins where they
fought, wrought, suffered in the Homeric work of extending an empire and
making it safe for the soft creatures of the counting-rooms and drawing-
rooms who would ultimately follow. Newspapers they seldom saw, books
scarcely at all, and most were illiterate. It was a long cry from these
powerful figures with muscular arms and dauntless hearts to the perfumed
dandies simpering silly compliments into the ears of the ladies at Mrs.
Bingham’s.
Within a radius of a hundred miles, there were but seventy thousand
souls. Pittsburgh was a crude little village of twelve thousand people. Here
they lived, shut off from the eastern country by the mountains, for the few
passes and winding roads through the dense woods were too rough for
vehicles. The little trade they carried on with the East was through the use
of pack-horses. From the South they were shut off by savage tribes of red
men. Here they were, left to shift for themselves by their Government,
which manifested little interest in their welfare, but did not forget the taxes.
Because there was no market for their grain, they were forced to convert it
into alcohol, which was largely their medium of barter. Money was seldom
seen, and the excise tax laid on their alcohol was payable only in money.
No people in America received so little benefit from the Government, and
none were hit so hard by the Excise Law. Perhaps these pioneers who
thought themselves abused were ignorant, but there was an intellectual giant
among them who knew they were abused. This was Albert Gallatin.
A mingling of comedy and pathos is the story of the insurrection. The
masses were victims of a few demagogues,[935] but alas, these demagogues
were working with a real grievance. Public meetings had not served to
moderate the passions. Wise advisers, like Gallatin, were unable to control,
and the extremists followed the more flamboyant and less scrupulous. The
law was resisted, officials intimidated, prisoners released from custody by
mobs, and farmers who informed revenue men of the location of stills read
their mistake by the light of their burning barns. When Washington sought
to suppress the insurrection through negotiations, it was too late, and the
troops he summoned marched.
It was inevitable that politics should play a part. The Excise Law was
Hamilton’s child, born to meet the obligations of the Assumption.
The Jeffersonians had opposed its passage, and Jefferson thought it ‘an
infernal law.’[936] Then, too, it was felt that Hamilton welcomed the
opportunity to test the Federal power. There had been too much skepticism
on that point, and he longed for a decisive contest with the ‘mob.’ Bache
had complained that Hamilton’s report to Washington on conditions in the
trouble zone read ‘like a lawyer’s summing up to a jury.’[937] The Federalist
papers traced the trouble to the Jeffersonians because they had opposed the
enactment of the Excise Law, denounced the Democratic Societies for
inciting the people to insurrection, and satisfied the moron-minded that a
demand for a law’s repeal is the same as urging its violation. These were the
days when the high-flying Federalists, under the shadow of Washington on
horseback, were meditating the Sedition Law. Yes, and the Alien Law as
well, for they were pointing to the ‘foreigners’ as the ringleaders in the ‘plot
to overthrow the Government.’ The Irish, now numerous in Pennsylvania,
were mostly Jeffersonians. That was enough. Fenno warned of ‘the refuse
of Europe that will swarm to our shores’ if laws were not rigidly enforced.
[938] Wolcott wrote his father that the insurrection was ‘a specimen of what
we are to expect from European immigrants’ and that ‘Pennsylvania need
not be envied her Irishmen.’[939] ‘Down with the Democrats!’ ‘Down with
the critics of public men and measures!’ ‘Down with the foreign devils!’ On
these themes the Federalists harped through the summer and autumn. Their
persistence was so persuasive that Muhlenberg, the Speaker, narrowly
escaped defeat for renomination because he had voted against the Excise
Law.[940] The Hamiltonians made the most of the situation.
Before this fusillade the Jeffersonians and Democratic Societies handled
themselves well. Never had these societies done more than denounce the
excise and demand its repeal, and under the fierce fire they made their
position plain. One after another they gave public expression to their views.
The Excise Law was reprehensible, but as long as it remained a law it
should be obeyed.[941]
The Democratic press took a similar stand. ‘The question is not whether the
excise is a proper or improper mode of collecting revenue,’ wrote Bache. ‘It
is constitutional ... and it becomes the duty of every citizen to give his aid,
if called upon, to enforce its execution. If the opposers should triumph ...
the axe is laid to the root of all national government.’[942] Greenleaf in the
‘New York Journal’ was quite as direct: ‘The excise, however obnoxious, is
the law of the Union; constitutional measures only therefore ought to be
adopted.’[943] Jeers of derision from the Federalists greeted these
resolutions and editorials. The insurrection, they contended, ‘is the natural
result of these Democratic clubs.’ Honest men among their members had
been deceived and the rioting in the West would open their eyes. ‘Down
with the Democratic Clubs!’ ‘Down with the critics of governmental
measures!’[944] This aroused the wrath of the Jeffersonians, who now took
the offensive. Bache summoned the Jeffersonians to join in the suppression
of the insurrection to ‘give the lie to the bawlers against the Democratic
Societies.’[945] The response was instantaneous. Members of these societies
and enemies of the excise rushed to the colors. The Irish Democrats of
Philadelphia in an advertisement urged the Irish to ‘stand to their arms,’ and
they formed a volunteer company.[946] The Federalists found themselves in
a brisk competition for places in the army. With the Philadelphia aristocrats
eager to follow Hamilton, and with the Democrats demanding places, the
city’s quota was soon doubled. ‘Let those who derive the most benefit from
the revenue laws be the foremost to march,’ wrote Bache gleefully. ‘Let the
stockholders, bank directors, speculators and revenue officers arrange
themselves immediately under the banner of the Treasury, and try their
prowess in arms as they have in calculation.’[947] But the jubilant Bache
was soon to sing another tune.

VI

On the last day of September, three spirited horses stood in front of the
President’s house on Market Street. Three men emerged from the house and
mounted, Washington in the center, Danbridge, a secretary, on one side, and
on the other—Alexander Hamilton. They turned their horses toward the
camp at Carlisle. So Hamilton was going to enforce his law with the sword.
Well did the Democrats know the spirit in which he rode to his task. Under
the signature of ‘Tully,’ he had not been able to conceal his identity in a
series of articles in the summer designed to prepare the country for forceful
measures. These had bristled with partisan invective. The Excise Law was
defended and its opponents were charged with playing ‘with passions and
prejudices.’ And it was not without passion and prejudice that he himself
rode forth that September morning.[948] It was at this time that Bache began
to sing another tune. In response to what constitutional duty was the head of
the Treasury usurping the functions of the Secretary of War? he asked.
‘Pray, where is the Secretary of War? Is he superintending the operations of
the Treasury department?’[949] He knew at the time that Knox was on a
mission of private business in Maine, for more than two months before he
had sternly taken him to task for his absence in a crisis.[950] But
Washington was going—why Hamilton? It was whispered about that he had
intruded without an invitation, and some felt ‘that his conduct is a first step
in a deep laid scheme.’[951] Madison was convinced that Hamilton planned
to use the insurrection as a pretext for the creation of a standing army,[952]
long before the dynamic young leader rode forth with Washington to join
the army. A cry of rage went up from the Democrats everywhere.