University of Virginia Library

Profits From Play Publication: The Evidence Of
Murphy v. Vaillant
by
JUDITH MILHOUS AND ROBERT D. HUME

Relatively little is known about the terms on which plays were published in the later eighteenth century.[1] So far as we are aware, no source exists that is comparable to British Library Add. MS. 38,728, which contains a large number of publication agreements (including many for plays) dating from the first half of the century. Figures have come to light for scattered plays, but the specifics of publication agreements and the profits made by the playwrights remain a relatively dark subject. Consequently we are pleased to be able to present a substantial amount of information about the early plays of Arthur Murphy from a heretofore unknown Exchequer lawsuit. Our source is Public Record Office E 112/1649, no. 2392, filed by Arthur Murphy against Paul Vaillant in Hillary Term 15 George III (1775).[2]

Arthur Murphy (1727-1805) had his first piece staged in 1756 and ultimately produced more than fifteen plays for the patent theatres in London. He was an industrious professional writer who also published some political and dramatic journalism but eventually devoted himself to a career in the law. He commenced his legal studies in 1757; was called to the bar in 1762; and by 1765 had largely turned his attention away from the theatre, though he had several new plays staged in the 1770s and one as late as 1793. He is probably best known for his "Essay on the Life and Genius of Henry Fielding" (prefaced to the 1762 Works), but his two-volume Life of David Garrick (1801) has also been extensively cited by later writers.[3]

Murphy's principal publisher during his first decade was Paul Vaillant, and the lawsuit gives us financial and other information about nine of his plays, two revisions of them, and one political novella translated from French. The period covered is 1756 to 1767. Murphy brought the suit as a cross action to block execution of a judgment against him in the Court of Common Pleas. Vaillant claimed that he had paid (and loaned) Murphy £186 3s 1d more than he owed him, and he sued to collect. Our concern here, however, is less with the particulars of this case than with what the testimony on both sides tells us about play publication and its profits. How typical Murphy's publication arrangements and remuneration were we cannot be sure. He started by selling his copy outright; quarrelled with Vaillant over whether he should receive additional pay for a revised text; and finally tried having Vaillant print plays at Murphy's own expense and sell them on commission. The financial and legal ramifications are complex.

I. FOURTEEN YEAR SALE OF COPYRIGHT

We must start by addressing a difficulty: Murphy and Vaillant disagree quite drastically about both the dates and contract prices of virtually all their agreements. What are we to conclude when Murphy says he sold a play to Vaillant for £157 10s in March 1759 and Vaillant replies that he bought the play for £105 on 7 February 1760? To complicate this tangle further, the play in question premiered in April 1759 and was published almost immediately (which seems to favor Murphy's story)—but Vaillant offers to produce the signed and witnessed contract, dated as he has specified. We will disclose the result of the case immediately: the Court of Exchequer found for Vaillant.[4] Our reading of the evidence suggests that the court came to the right conclusion. But such contradictions in what ought to have been simple matters of fact are unsettling.

Why would Murphy make the claims he did, knowing (as he told the court himself) that Vaillant kept excellent records? Two quite separate matters are at issue: price and date. So far as we can determine, Vaillant is right about the prices. Both men are correct about the dates. Let us explain. Murphy and Vaillant struck a bargain for each play at roughly the time of premiere (whether before or after cannot be determined), but they sometimes did not "reduce the agreement to writing" and put cash on the barrelhead until a later date.[5] Murphy gives the date at which a bargain was struck; Vaillant gives the date of the formal written agreement and cash payment.

When the agreement remained oral, they give the same date. Murphy's inflated prices are more troublesome, but we will offer a conjecture. At least five of his figures must be false: Vaillant held the signed agreements and offered to produce them to the court. Our best guess is that Murphy was simply stalling. He knew that Common Pleas had found against him, and that Vaillant held £479 13s 10d of receipts and "notes" from him as against only £293 9s 9d that Murphy had been able to document was owed to him by Vaillant. Inflating the alleged prices of seven plays and one revision by £233 (which is what Murphy apparently did) was a means of seeming to show that Vaillant owed Murphy money, not vice-versa. Murphy cannot have expected to bamboozle the Court of Exchequer, but the suit did buy him more than six months of breathing room. He probably hoped for longer: most Exchequer cases dragged on at least two or three years. He owed Vaillant nearly £200, which was a very large sum of money, and time to scrape it up might have been of the essence. At any rate, the discrepancies in testimony need not concern us unduly: Vaillant's prices appear to be correct.[6]

Murphy sold publication rights in seven plays to Vaillant between January 1756 and November 1761. The titles, performance dates, publication agreement dates, contract dates (if different), and prices are specified in Table 1.

Table 1: Plays sold by Murphy to Vaillant

               

Title	Acts	Premiere date	Agreement date	Contract date	Publication date	Price
Apprentice	2	2 Jan 1756	Jan 1756	17 Jan 1756	8 Jan 1756	£40
Upholsterer	2	30 Mar 1758	Mar 1758	13 Mar 1759	12 Apr 1758	£42
Orphan of China	5	21 Apr 1759	Mar 1759	7 Feb 1960	2 May 1759	£105
Way to Keep Him	3	24 Jan 1760	Jan 1760	7 Feb 1760	5 Feb 1760	£52 10s
Desert Island	3	24 Jan 1760	Jan 1760	7 Feb 1760	29 Jan 1760	£52 10s
All in the Wrong	5	15 Jun 1761	Nov 1761	(oral)	21 Nov 1761	£105
Old Maid	2	2 July 1761	Nov 1761	(oral)	25 Nov 1761	£42

The most obvious fact to be discerned from this list is that a five-act mainpiece brought the author a hundred guineas (£105), whereas a three-act play was worth just half that and a two-act afterpiece fetched £40 or £42. The 1760 version of The Way to Keep Him and The Desert Island are a pair of three-act entertainments written to be performed together. The former was popular and the latter was not, yet what they brought Murphy from his publisher was fifty guineas each. He got more from Vaillant for the successful show only when he rewrote it as a five-act mainpiece (a subject to be addressed in due course).

From the start of their business relationship, Vaillant and Murphy operated quite casually about written agreements. When The Apprentice premiered on 2 January 1756, Murphy was unknown. The work proved immediately popular, and by 8 January Vaillant had it in print at 1s. Terms may have been agreed on before the premiere, but the formal contract was not signed until more than a week after publication. Vaillant recites it: "London 17th January 1756 I do hereby Assign and make over to Mr Paul Vaillant his Heirs Executors or Assigns for and in Consideration of the Sum of forty pounds to me by him paid this day the full and entire property of a ffarce in two Acts written by me and entitled the Apprentice. Witness my Hand and seal Arthur Murphy." Vaillant adds: "And which said Paper was signed and sealed in the presence of Margaret Chastel and John Edwards and was drawn up in Writing by this Defendant and is now in the possession or power of this Defendant." What exactly was Murphy selling? In the words of the Copyright Act of 1710, he was transferring "the sole Right of Printing or Disposing of Copies" for fourteen years. Murphy is careful to state the period in his testimony; Vaillant consistently leaves it out, and it was not specified in their written contracts. According to the Act, ownership "shall Return to the Authors thereof, if they are then Living, for another Term of Fourteen Years."[7] Accustomed to the longstanding Stationers Company presumption of perpetual right, booksellers tended either to bargain for all assignable rights or to operate as though they had.[8]

Subsequent deals between Murphy and Vaillant were even more casual. The Upholsterer—another immediate and longstanding success—was published two weeks after its 30 March 1758 premiere, but not formally contracted for between author and publisher until a year later.[9] Terms for The Orphan of China—a succès d'estime—were apparently agreed upon in March 1759; again the play was published two weeks after its premiere on 21 April, but the paperwork did not get done until 7 February 1760.[10] Indeed, on the same day Murphy and Vaillant concluded a bargain for the three-act version of The Way to Keep Him and The Desert Island, which had received their premieres two weeks earlier and were coming up to the last of their eleven joint performances. Vaillant recites the written agreements for all of these plays, and according to his testimony (accepted by the court), he and Murphy

used their meeting of 7 February 1760 to tidy up their joint affairs: "about the seventh day of ffebruary 1760 . . . All accounts between the Complainant and this Defendant were closed and balanced. And . . . on the twenty sixth day of ffebruary 1760 a new Account was opened." For reasons not clear to us, author and publisher did not bother with written publication agreements under their new "Account."

As of February 1760 Murphy was an exceptionally promising young dramatist. Four of his five plays had been successful, and all of them had been mounted by the Garrick management at Drury Lane—London's best. Murphy was probably satisfied with his publisher, or he would have struck bargains elsewhere. He does not appear, however, to have been content with what he was earning from the theatre itself, for in the summer of 1761 he joined forces with Samuel Foote and rented the Drury Lane theatre to offer a summer season. All in the Wrong and The Old Maid premiered there in June and July. Both enjoyed numerous performances. No account books survive for this venture, but "Mr. Murphy's Statement of his Case with Messrs. Garrick and Lacy" supplies some important financial details and explanations of the venturers' agreement.[11]

Under this special summer arrangement, Murphy stood to benefit from four separate sources of income. (1) Benefits for his new plays. He was allowed three benefits for All in the Wrong, which netted him £77 17s 101/2d, £2 8s 21/2d, and £6 respectively. Two benefits in which The Old Maid served as afterpiece yielded £56 19s 111/2d and £13 10s 2d, so Murphy derived a total of £156 16s 21/2d from "author's benefits." (2) Murphy and Foote were splitting managerial profits. Their agreement with Garrick and Lacy was that the rent on Drury Lane would be one-fifth of the net profits of the summer season. Murphy mentions in passing in his Life of Garrick that "Foote received somewhat above three hundred pounds for his half-share," which implies that Murphy likewise got £300 as comanager and that Garrick and Lacy collected about £150 between them (one-fifth of a presumptive £750 total profit).[12] (3) Another part of the agreement with Garrick and Lacy was that if the benefits for Murphy's new plays did not make him £300 for All in the Wrong and £100 for The Old Maid (i.e., a total of £400), then they had the right to pay him the difference and take the two plays into the regular Drury Lane repertory. By Murphy's calculations the two plays had earned him only £121 11s 11/2d. (Because The Old Maid was an afterpiece, he allowed only half of the profits earned on those nights to count as "its" earnings, which explains the discrepancy between this figure and the £156 16s 21/2d total benefit earnings.) If we accept this basis of calculation, then Garrick and Lacy ought to have paid Murphy another £278 8s 91/2d [recte 101/2d] to bring the total up to £400. In fact, they paid him only £200, thereby inflaming his temper.[13] (4) Sale of copyright. Vaillant claims to have paid Murphy exactly

the same amounts that had been established as his going rates: one hundred guineas for the mainpiece and fifty guineas for the afterpiece. Granting that the managerial profits are a round figure, Murphy's total earnings from the summer company venture must have been something like £814. The copyright fees of one hundred and fifty guineas were by no means a trivial sum, but they represent far less than could be earned in the theatre and lead us to a broader question.

How much of Murphy's income from playwriting was he deriving from performance and how much from print? Drury Lane accounts are only spottily preserved, but we can get some idea. Murphy received a benefit on the eighth night of The Apprentice. Richard Cross, the prompter at Drury Lane, estimated a gross of £200; assuming that Murphy paid the standard £63 house charges, he should have netted roughly £137 or more than three times what Vaillant paid him for publication rights.[14] For The Upholsterer he was given an unadvertised benefit on the tenth night. Cross estimated the take at £180, so the net should have been circa £117, or close to triple the publisher's fee. As a mainpiece, The Orphan of China entitled its author to benefits on the third, sixth, and ninth nights. Assuming Cross's estimates to be reasonably accurate, Murphy ought to have netted something like £231,[15] which is more than double the payment from Vaillant. No figures survive for The Way to Keep Him and The Desert Island, but since they ran more than nine nights Murphy ought to have made something on the order of £200 and conceivably a bit more. In sum, publisher's fees added handsomely to the profits of playwriting, but they constituted (so far as this very limited sample permits us to judge) something like 20- 35 percent of the total that an author might hope to make from a play with a decent run.

One warning: Murphy would probably not have received any remuneration for the afterpieces from the theatre if they had died after four or five nights. Little evidence exists about theatrical compensation for afterpieces. Authors' benefits were not always advertised, and especially not for afterpieces, as we sometimes learn from Cross's annotations.[16] Management was resigned to giving up the profits of the third, sixth, and ninth nights for a mainpiece (if it lasted that long), but if a benefit was given for an afterpiece, it commonly occurred on the sixth night or later. No benefit was allowed if the piece failed to survive that long. We offer the hypothesis that management had the option of compensating the author of a flop with a flat cash payment, if any remuneration was given at all. Let us underline the obvious: big money

could be made only from success in the first run of a mainpiece, but for a failure, the publication fee might be a very large part of such profits as the author ever got. Indeed, benefits carried no guarantees and sometimes lost money: the copyright money could conceivably be the only remuneration the writer would ever receive from his or her play.

II. REVISED VERSIONS

In two cases Murphy revised a play of his own. This was not common practice at the time, in part no doubt because the system of remunerating playwrights did not encourage further attention to something already in the public domain so far as performance rights were concerned. The two occasions on which Murphy carried out revisions were quite different, and they raise interesting publication questions.

The first was anomalous. The Way to Keep Him had originally been produced as a three-act mainpiece. It was tried a couple of times in the spring of 1760 as an afterpiece, but it was too long. To do the theatre much service it needed to become a five-act mainpiece. In the course of the summer and autumn Murphy duly expanded it, and the play received its premiere as a full-dress mainpiece on 10 January 1761. It enjoyed an immediate run of eight nights (including two command performances) and went on to become a repertory staple. How the Drury Lane management compensated Murphy for his trouble is not clear. No author's benefit was advertised, and no accounts or prompter's diary survive for this season. A flat fee may have been negotiated, or Murphy may have received an unadvertised benefit. What he got from Vaillant for publication rights was fifty guineas. (Author and publisher concur in saying that an oral agreement was struck in January 1761.) The fee seems fair: Murphy had written two additional acts, and he got more than the standard price of a two-act afterpiece.

The second instance concerns "Alterations and Additions" to Murphy's second play, The Upholsterer. This afterpiece had been successful at Drury Lane, and in 1763 the new Covent Garden management decided to add it to their repertory. The usual method of doing so would have been simply to buy some printed copies and mount the piece unaltered without compensation of any kind to the author. In this instance, however, the Covent Garden managers decided to shorten and lighten the piece. Comparison of the Vaillant edition of 1763 with that of 1758 shows that the two are substantively identical until page 39, at which point they diverge drastically.[17] Murphy added some material for the low-comedy characters; reduced sentiment, pathos, and jealous love complications; and wound up cutting twelve pages to about eight. The impact of the piece is therefore greatly altered, even though 80 percent of the play is unchanged. The revision should have required little time or effort, so we are not surprised that no author's benefit was advertised. We presume, however, that Murphy got something for his trouble. Though far from new, the piece proved even more popular at Covent

Garden than it had at Drury Lane, enjoying 20 performances there its first season.

Vaillant naturally wanted to issue a revised edition, representing The Upholsterer as it was now to be seen at Covent Garden—and toward the end of the year, he did so. Whether he owed Murphy anything on account of this revised edition was sharply disputed between them. Murphy charges that "some Time in the Month of November 1763" (recte October), he

Vaillant replied that he had indeed acquired the alterations and published them, but that he had done so with Murphy's permission and cooperation: The theory of copyright was very much in its infancy, and eighteenth-century courts consistently had difficulty with alterations and translations (and in the realm of music, rescorings for different instruments). How much difference was required to create a new work?

Not to compensate an author for printing new material that warranted a new edition and improved the saleability of a title seems manifestly unfair. Contrariwise, the publisher would have had grounds for complaint if the author made relatively minor alterations and then proceeded to sell copyright of the "new" work to another publisher. So far as we know, Murphy had not attempted to do the latter, but Vaillant quite definitely did the former. The information that a publisher could, for a consideration, routinely acquire "acting" copy from the prompter as early as 1763 is interesting. Vaillant says that "the Prompter . . . usually has a Gratuity for furnishing a Publisher with a Manuscript Copy of Theatrical Pieces & to whom this Defendant gave a gratuity on that account." (His failure to state the amount of the "gratuity" is frustrating.) Yet apparently the playwright's authorization was necessary if he or she was living, and Murphy had agreed. Exactly what happened will probably never be known. Perhaps Murphy assumed he would be compensated and was disagreeably surprised. Or perhaps he made the charge of theft only long afterwards in the heat of the lawsuits between the two. The fact that Murphy went on publishing with Vaillant for four more years suggests that he was not violently unhappy about his treatment over The Upholsterer in late 1763.

III. PUBLISHING AT THE AUTHOR'S RISK

On 9 January 1764 Covent Garden mounted a double bill by Murphy. No One's Enemy but his Own (3 acts) struggled through four nights, with a single author's benefit on the third (receipts unknown). What we must all come to (2 acts) was taken off after the first night. Why these shows failed so dismally is not at all clear, especially given that when Murphy revamped the afterpiece as Three Weeks After Marriage (1776), it proved steadily popular throughout the rest of the century. Whether Vaillant declined to pay full price for a pair of flops or Murphy thought he could make more money by having the works printed at his own risk is anyone's guess. Murphy's account of their agreement is as follows.

Murphy charges, however, that Vaillant "sometimes" pretends that he bought copyright for the two plays for £167, and sometimes admits that he agreed to print and sell them "for your Orator's Benefit and Advantage." But in the latter case "he pretends that he printed" only 2500 copies of each title and has sold only 806 of No One's Enemy but his Own and 722 of What we must all come to, and that he therefore retains unsold 1694 copies of the one and 1778 of the other. Vaillant claims that the total charges and expenses of printing, paper, stamp duty, advertising, and publishing came to £58 5s 9d, and that "from the sale of the said Two pieces the Ballance due to" the author is only £8 1s. Murphy counters that he believes "& doubts not to prove" that Vaillant "did order & cause. . . Archibald Hamilton in the said Month of January 1764 to print ffour thousand of each of the said pieces & that the Number of Printed Copys amounted together to Eight Thousand which were your Orator charges all Sold." This is a mind-boggling number of copies of two flat failures in the theatre, but Murphy goes on to claim that "sometime in the Month of May 1764 the said Paul Vaillant caused the said Archibald Hamilton or some other printer to print two Thousand Copies more & that of the 1st mentioned Number of Printed Copys there are very few Remaining now on hand." Consequently "it will appear from the Books of . . . Paul Vaillant that a Balance of no less than Three hundred pounds remains due to your Orator" for these two plays. These figures are difficult to believe, and the Court of Exchequer did not accept them.

Vaillant admits "that the Complainant did not sell or Transfer the Copyright of the said two last mentioned pieces to this Defendant but delivered him the said two copies to be printed published and sold for the Complainants profit and advantage." He insists, however, that only a single edition of 2500 copies of each play was ever printed by Hamilton or anyone else, and that only 807 and 722 copies respectively were ever sold. "And he this Defendant agreed to print and publish the said two pieces for the usual Commission allowed to Booksellers by all Authors who do not sell or Transfer their Copyright and undertook to sell and dispose of the printed Copies of the said two pieces to and for the Complainants profit." Vaillant denies that he agreed "to keep a true and just account of the Copies of the said pieces which he should dispose of or sell to Booksellers or others . . . tho' he apprehends that such promise was necessarily implied in the Transaction."

Vaillant summarizes the sales and the amounts owed to Murphy in a brief "Schedule" appended to his answer and reproduced in Table 2.[18]

Table 2: Sales and Royalties on Plays Published at Murphy's Risk

[Description: Table of Sales and Royalties]

Whatever number of copies might theoretically have been printed, the chances are good that the number of unsold copies is reported accurately, since Vaillant had turned them over to Thomas Lowndes when he left the business in 1773 and Lowndes could have been called on to testify. We note one oddity: the commission paid to the bookseller was not the same for the two plays. In the case of No One's Enemy but his Own (sold at 1s 6d), Vaillant kept 6d (one third of the price) from each copy, and credited the author with a 1s royalty. For What we must all come to (sold at 1s) however, the fee was neither 6d nor one-third of the price (4d). The sum Vaillant actually collected was just over 31/2 pence per copy, which seems extremely peculiar. This is not just a matter of a copying error in the "Schedule," since neither the main total nor the later sales work out to a rational royalty for the author. We have no explanation.

The figures in Table 2 permit us to calculate a rough economic basis for play publication at this time. Vaillant states (and Murphy does not challenge the figures) that the total manufacturing, advertising, and stamp duty cost of the two plays came to £58 5s 9d (which when subtracted from the author's share of sales left Murphy the depressing sum of £8 1s for the two plays). We might, therefore, assume that publishing 2500 copies of a standard mainpiece cost upwards of £35, while an afterpiece might come to something like £25. Consider the implications of these figures. The mainpiece, if sold at 1s 6d, might generate a gross income of £187 10s. If the author were paid £105 cash down for the copyright (as Murphy had been for The Orphan of China and All in the Wrong), then the publisher was investing £140 up front in the hope that he might someday recover his investment and make a profit. Ignoring storage and overheads, he would eventually make about £45 if all the copies sold. Not until upwards of 1867 copies had been sold would the book start to go into the black. In view of these figures one can readily see why publishers liked to sell fractional interests to a number of friends, getting

some cash back immediately and spreading the risk. The figures on afterpieces are similar. If sales were 2500 at a shilling each, the potential gross would be £125. The cost would be about £25 for manufacturing plus £52 10s copyright payment to the author, for a total of £77 10s. The cost recovery figure is marginally better: 1550 copies would pay for the book, and if all copies sold, the printer might hope for roughly £45 in profit (again ignoring overheads).

What is absolutely clear from these particular figures is that Murphy would have been vastly better off if he had received for these plays what he had been paid for his earlier work—£105 plus £52 10s would have totalled £157 10s as opposed to £8 1s. Whether Vaillant offered him those terms the lawsuit does not say. Conceivably, Vaillant offered less—the plays were, after all, failures—and Murphy refused. Whatever happened, the likelihood is that Murphy's total profit from this pair of plays was not much more than a hundred pounds, and far less if his single benefit was poorly attended.

IV. THE DISPUTE OVER BELISARIUS

The one non-dramatic work by Murphy that Vaillant published is a translation of a French novella by Jean- François Marmontel.[19] We consider it here for the sake of clarifying the grounds of the entire dispute and because it sheds some interesting light on the process of hasty commercial translation and the economics of such publication.

Murphy charges that "in the Month of ffebruary 1767" he delivered to Vaillant "the Manuscript Copy of a Book Intitled Belisaurius which was originally written in ffrench by Monsieur De Marmintal, and which your Orator Translated into the English Language." The translation was "to be by him Published and sold for your Orators profit and Advantage and your Orator did not Transfer or sell nor make any Bargain or Agreement to Transfer or sell the Copy of the said Translation." Murphy alleges that Vaillant has "sold sundry Large Impressions of the said Work amounting to Ten thousand Copies at and for the price of four shillings for each Printed Copy," but that he has paid Murphy nothing and refuses to show him the accounts. Later in his bill of complaint Murphy says that Vaillant "sometimes" claims that Murphy made him a gift of the translation, and sometimes claims that he bought the copyright for £21, giving "colour to this his pretence" by having lent Murphy £21, taking a promissory note for it dated 5 March 1767, and then "falsely & fraudulently" writing "a certain Memorandum at the foot of the above mentioned promisory Note" concerning Belisarius. Murphy maintains that "a ballance of ffive hundred pounds" is due to him on sales

of the translation, which would be a very modest profit on sales allegedly totalling £2000 (10,000 copies at 4s each).

On this evidence, Vaillant would certainly seem to be a fraud and a cheat. His answer, however, makes much better sense than Murphy's charges:

Murphy had been educated in France at the English Jesuit College at St. Omer. He was not merely boasting when he said in the unsigned Translator's Preface that this was "not journeywork: it was undertaken con amore, with a kind of affection for the various graces of M. Marmontel's performance."[21] Vaillant says that Murphy accordingly carried out the translation as Vaillant brought him fresh copy hot from Paris, but that no agreement for sale of the work was ever made.[22] He admits that he loaned Murphy £21 and that without Murphy's knowledge or consent he wrote a memorandum on the promissory note that might be taken to imply that the £21 (which had not been repaid) was payment for Belisarius. He admits to having printed five thousand (not ten thousand) copies and having sold 4,200 of them, but at "the Price of three shillings for each Printed Copy of the two first Editions when bound and of three shillings and six pence for the subsequent Editions and not at the Price of four shillings."[23] The gross receipts must have been close to £700,[24] and even allowing lavish costs for printing, paper, copper plates, and so forth, the net profit ought to have been more than £400—a sum Murphy would no doubt have liked to collect.

Neither man's story seems wonderfully plausible: we must believe either that Murphy gave away the translation or that Vaillant was a bare-faced thief who agreed to publish the manuscript at the author's risk and then appropriated all the profits when they proved substantial. Fortunately, there is one further piece of evidence, and it hoists Murphy neatly by his own petard. Vaillant offers to put in evidence

This seems conclusive: as of 1770 Murphy had admitted of his own accord that Belisarius was Vaillant's property.

Some comments made in passing by both parties clarify the nature of this project and the relations between author and publisher. Murphy complains that he spent ten weeks on the job, which is not possible, given the French and English publication schedules. He says that Vaillant told him "that if the said Work had been transacted by an unskilful hand or by any of the Persons whom Booksellers occasionally hire & call Hackney writers that the merit of the original ffrench would have suffered & been obscured to such a degree that the Translation would probably have a very indifferent Sale & the profits of course would have been much Diminished." He also says that Vaillant sent him "sundry Notes Cards or Letters recommending to your Orator to persevere in the said Translation & assuring him that the Translation if finished as it began would redound very much to the profit as well as the Reputation of your Orator." These notes were apparently not saved, for Murphy does not offer to put them in evidence.

Vaillant replies that Murphy "was employed in the whole ffive Weekes in making the said Translation and not more," and that "had it not been for the Delay occasioned by not receiving the French Work from Paris regularly the said Complainant could easily have translated the said Work in twelve Days" because "the whole Work when printed amount[ed] to no more than ten sheets and an half" (which is correct if one includes the prelims). Murphy, he says, "performed the Translation with so much facility as not to be obliged even to transcribe his Copy for the press." He says he might have made dismissive remarks about "Hackney Writers" and "believes that he might write to him the Complainant some flattering Letter or Letters in order to induce

him the Complainant to take more Pains for this Defendant saith that the Complainant translated it so very fast that he this Defendant was in Fear that it would be done too much in a Hurry." Naturally he denies saying anything that might imply that Murphy would benefit financially beyond the £21 loan that Vaillant did not mean to insist on his repaying.

Why Murphy did what he did we will probably never know. One can, however, understand his ex post facto frustration. He had scribbled off a translation in the course of a few weeks, working part time and doing no revision—with the result that Paul Vaillant had profited to the extent of some £400 or more. Marmontel's radical critique of the French government drew praise from Murphy, along with a statement that helps explain Vaillant's eagerness. The translator asserts that Marmontel "has had the genius and the courage to think with freedom, even in Paris, where we understand, by the last post, that his book is now suppressed" (vi), news that presumably helped sales.[25] Murphy may have done the translation essentially as a favor, but probably had no inkling that it would prove so valuable a property. When Vaillant subsequently took him to court, demanding nearly £200 from him, Murphy had some cause to feel that Vaillant had not only picked his pocket but was trying to strip his carcass clean.

V. THE AUTHOR'S DILEMMA

We do not wish to overgeneralize from the particulars made known in this one case. They concern one writer, one publisher, and a period of just over a decade. By the standard of the contracts preserved in British Library Add. MS. 38,728 for the 1730s and 1740s, Vaillant's prices seem decidedly generous. Taking into account Murphy's relatively junior status as a playwright, the prices seem even more lavish, particularly for afterpieces. John Watts (publisher of most of the plays for which contracts are known in the earlier period) rarely paid more than £50 for a mainpiece and often bought afterpieces for 5 guineas or even less. Until more facts have been discovered for the post-1750 period, the representativeness of these prices and the commoness of outright sale of copyright of plays must remain questionable. Likewise we simply do not know how often playwrights chose to have plays published at their own risk in the 1760s, what they were charged by their printers, or what the bottom line looked like. The prices given for copyright do not seem out of line with those given by Dodsley at about the same time.[26]

Surveying the practices described in Murphy v. Vaillant, we are struck by two points in particular: the casualness with which author and publisher

did their business, and the extent to which Vaillant was prepared to loan Murphy money without charging him interest. Up to February 1760 Murphy and Vaillant operated a bit sloppily (formalizing contracts long after publication, for example), but they struck bargains, eventually reduced them to writing before witnesses, and paid over the money due. When they balanced their books on 7 February 1760 they were all square with little room for difference of opinion. (Murphy tried to obscure this settlement, but Vaillant was able to prove conclusively that all transactions prior to this date were settled and hence irrelevant to the lawsuit.) After that, they depended on oral agreements not made before witnesses, even when they drastically changed the terms on which they were doing business. They should unquestionably have made a written agreement about No One's Enemy but his Own and All in the Wrong. Their failure to set clear terms for Belisarius is even stranger.

Between 26 February 1760 (when their "new Account was opened") and 23 December 1767 (when Vaillant presented Murphy with a bill for £192 5s 10d) Murphy collected substantial sums from Vaillant. Vaillant held receipts and notes of hand amounting to £405 1s 7d, to which he added £16 6s 6d "Book debt" and £58 5s 9d for printing the two plays at Murphy's risk for a total of £479 12s 10d [recte 13s 10d]. He calculated what he owed Murphy for this period as £52 10s for the alteration of The Way to Keep Him, £105 for All in the Wrong, £42 for The Old Maid; £6 13s for 38 copies sold of the Gray's Inn Journal at 3/6 each, £25 19s 9d for 722 copies of What we must all come to, £40 7s, for 805 copes of No One's Enemy but his Own, and £21 allowed for Belisarius—"amounting in the whole to the sum of" £293 9s 9d. The difference, £186 3s 1d, reflects loans and cash advances on unsold books. Vaillant says apropos of his obtaining and printing the revised text of The Upholsterer that Murphy gave him "the said Additions and Alterations . . . partly moved by this Defendants Civilities to him & not requiring Interest from him for Money advanced to him." We would guess that Vaillant regarded Murphy as a promising writer worth some coddling and concessions, and that he therefore allowed the playwright to draw money he had not yet earned. When Murphy showed clear signs of withdrawing from full-time playwriting, Vaillant not unnaturally totted up his accounts, discovered that he was owed upwards of £200, and tried to collect. Murphy put him off for fully six years before the claim went to the Court of Common Pleas—and then tried to block execution of the judgment of that court by filing a cross-bill in Exchequer.

More significant than the specifics of the case are the larger issues of authorship and remuneration. A playwright could sell his or her text and collect cash up front, but the transaction effectively concluded his interest in his book. In theory he would regain copyright after fourteen years, but relatively few plays had significant sales fifteen years after they came out. The author could choose to have the work printed at his or her own risk, but what was to prevent the printer from cheating the author blind? Costs might be padded. Worse, extra copies might be manufactured and sales concealed.

How would the author know? Murphy demanded access to Vaillant's account books—but businesses have been known to keep more than one set of books. And whatever the accounts might show, a steep price to a printer or a binder or a supplier of goods can conceal a cash kickback to the proprietor of the business.

Consider the playwright's options. Should the publication agreement be negotiated before or after the premiere? Success might raise the price, but failure would probably lower it. Really substantial profits from playwriting required multiple benefits from a mainpiece, but a mainpiece that died in three nights or so would not be easy to sell to a publisher. Conventional wisdom among twentieth-century commentators holds that eighteenth- century playwrights were exploited and bilked by publishers who acquired rights to plays for flat fees and then pocketed all the profits. There are certainly cases on record in which the publisher sold enormous numbers of copies of a text he had acquired for a relative pittance. Bernard Lintot, for example, bought Farquhar's The Recruiting Officer for £16 2s 6d and The Beaux Stratagem for £30.[27] There is another side to this coin, however. The playwright might get a substantial amount of much-needed cash in a lump sum up front, leaving all risk to the publisher. Unquestionably, the only way for a playwright to make a lot of money from publication was to accept risk and have the book printed "for the Author." John Gay did this with Polly in 1729, capitalizing on a subscription and the notoriety of the playhouse ban.[28] One of the more interesting implications of Murphy v. Vaillant, however, is that for an ordinary play, outright sale of the copy might well have proved a better deal for the author than has generally been supposed.[29]

Notes