This property in copy descends to personal representatives, though neither the author nor his representatives have any manuscript whatever of the work. Thus, the copy of Lord Clarendon's History, at the distance of near a hundred years, was adjudged to his representatives,' and Lord Mansfield thought that although the manuscript in the defendant's hands might have been the only copy in existence, they could not print and publish without the plaintiff's consent. In like manner, the son and devisee of Mr. Webb, a convey

is actually given out to the public. Even the printer of the book will not be entitled to sell it for his payment, although there is not the smallest doubt that he has a complete lien over it till delivery, to prevent the author, or his creditors, from taking advantage of the publication till he shall be paid. When a book is published, the property of it forms a subject which creditors are entitled to attach and sell and the price unpaid by the bookseller is as completely open to the diligence of creditors, as the price of any other commodity or piece of merchandise." 1 Bell's Com. p. 68.

Duke of Queensbury v. Shebbeare, 2 Eden's Ch. R. 329.

24 Burr. 2397. The facts of the case were these. Henry, the second Earl of Clarendon, son of the lord chancellor and historian, gave to one Gwynne the original MSS. of his father's history, in order that he might take a copy of it, and make use of the copy as he should think fit; and a copy was accordingly taken. The administrator of Lord Clarendon, the son, brought a bill to restrain the publication of this

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work by Dr. Shebbeare, to whom Gwynne's son had sold or delivered the MSS. The lord keeper, Henley, was of opinion that it was not to be presumed that when Lord Clarendon, the son, gave the elder Gwynne a copy of his father's MSS. he intended he should have the right to print it; that Mr. Gwynne might make every use of it except that. Duke of Queensbury v. Shebbeare, 2 Eden's Ch. R. 329. Upon this case Lord Mansfield observes, "Mr. Gwynne was entitled, undoubtedly, to the paper of the transcript of Lord Clarendon's history; which gave him the power to print and publish it, after the fire at Petersham, which destroyed one original. This might have been the only manuscript of it in being. Mr. Gwynne might have thrown it into the fire, had he pleased. But, at the distance of near a hundred years, the copy was adjudged the property of Lord Clarendon's representatives; and Mr. Gwynne's printing and publishing it, without their consent, was adjudged an injury to that property; for which, in different shapes. he paid very dear." 4 Burr. 2397.

ancer, obtained an injunction against his father's clerk, to prevent him from printing his father's manuscript draughts.' So also, the assignees of the writings of President Washington, who derived their title through his devisee, obtained an injunction against certain persons who had pirated them from the edition published by them.2

Under what circumstances the author or proprietor of a manuscript may be deemed to have authorized its publication, is a question of some nicety as well as importance. Merely parting with the possession of a manuscript, or intrusting the possession to a third person, are acts which do not carry with them proof of an intent to part with the ownership of the intellectual contents. Such acts must be limited, in point of effect, to the purposes, expressed or implied, for which the possession was given. Thus the giving of a manuscript copy of Lord Clarendon's history, to be used as the donee should think fit, was held not to have authorized its publication, and the possession of letters by the person to whom they were addressed, does not take away from the writer the right to object to their publication. So the allowing a manuscript play to be acted will not amount to a license to publish it. And where copies of a piece

1 Cited in Millar v. Taylor, 4 Burr. 2330. See also Thompson v. Stanhope, Amb. 739. Earl of Granard v. Dunkin, 1 Ball & Beat. 207. Folsom . Marsh, 2 Story's R. 100. Folsom v. Marsh, 2 Story's R. 100, 168.

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32 Story's Eq. Jurisp. § 943. 4 Duke of Queensbury v. Shebbeare, 2 Eden's Ch. R. 329.

Pope v. Curll, 2 Atk. 342. Thompson v. Stanhope, Amb. 773. "Macklin v. Richardson, Ambl.

694.

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of music had been distributed in manuscript for a year, by the author, before it was printed, it was held that the copyright was not lost.' But Lord Eldon seems to have thought that the circumstances in Mr. Southey's case, where he had left his manuscript a long time in the hands of a publisher, without inquiry, authorized the inference that he had abandoned his own right as author.2 Perhaps the soundest rule would be, to hold that when express consent is not proved, the negative is implied as a tacit condition. Most of the cases seem to proceed upon this principle, and it was adopted and acted upon by Mr. Justice Story, in relation to the writings of Washington, consisting of his correspondence, addresses, messages and other papers, official and private. The ground was taken in this case that these writings were public in their nature and were intended by the author for public use. But the facts of the case did not show that General Washington intended them as a donation to the public, and the court laid down the principle, that unless there be a most unequivocal dedication of private letters and papers by the author, either to the public or to some private person, the author has a property therein, and the copyright thereof exclusively be

1 White v. Gerooch, 2 B. & A. 290. 2 Southey v. Sherwood, 2 Meriv. See some observations upon this

case, ante.

3 Per Willes J. in Millar v. Taylor, 4 Burr. 2330.

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Thompson v. Stanhope, Amb. 737. Duke of Queensbury v. Shebbeare, 2 Eden.

• Folsom v. Marsh, 2 Story's R. 100, 109.

longs to him. In the United States, manuscripts are now under the protection of the statute of 1831, which gives a remedy, at law and in equity, against any person who shall print or publish, or be about to publish any manuscript whatever without the consent of the author or legal proprietor first obtained, if the author or proprietor be a citizen of or resident in the United States.2

II. LETTERS, addressed from one correspondent to another, have formed the subject of special discussion in courts of equity, and the principles on which the respective rights of the parties depend are analogous to those which govern in the case of other

The learned judge said, "In relation to this objection, it is most manifest, that President Washington deemed them his own private property, and bequeathed them to his nephew, the late Mr. Justice Wash ington, through whom the late Mr. Ch. Justice Marshall and Mr. Sparks acquired an interest therein; and, as appears from the contract between these gentlemen, annexed to the report, the publication of these writings was undertaken by Mr. Sparks, as editor, for their joint benefit; and the work itself has been accomplished at great expense and labor, and after great intellectual efforts, and very patient and comprehensive researches, both at home and abroad. The publication of the defendants, therefore, to some extent, must be injurious to the rights of property of the representatives and assig nees of President Washington. Indeed, as we shall pre

sently see, congress have actually purchased these very letters and manuscripts, at a great price, for the benefit of the nation, from their owner and possessor under the will of Mr. Justice Washington, as private and most valuable property. That President Washington, therefore, intended them exclusively for public use, as a donation to the public, or did not esteem them of value as his own private property, appears to me to be a proposition, completely disproved by the evidence. Unless, indeed, there be a most unequivocal dedication of private letters and papers by the author, either to the public, or to some private person, I hold, that the author has a property therein, and that the copyright thereof exclusively belongs to him."

Act of Congress of 3d Feb. 1831, § 9.

manuscript writings. It may be well briefly to review the authorities on this subject, in their historical order.

The first case is that relating to the letters of Pope to Swift. Mr. Pope obtained an injunction against Curll the bookseller, to prevent the vending of a book containing his letters to Swift. The ground was taken, on a motion to dissolve the injunction, that a letter is in the nature of a gift to the receiver. Lord Hardwicke said he was of opinion that it is only a special property in the receiver, possibly the property of the paper may belong to him; but this does not give a license to any person whatsoever to publish it to the world, for at most the receiver has only a joint property with the writer.' The objection was also raised, that the letters were only on familiar subjects, and the book could not properly be called a learned work. But his lordship did not admit the distinction. An injunction was granted against the letters written by Pope, but not against the rest of the book.

The next case related to Lord Chesterfield's letters to his son, containing characters of persons, besides disquisitions on politics, literature and education. The widow of the son, in whose possession the letters remained, restored to Lord Chesterfield some

Pope v. Curll, 2 Atk. 342. Mr. Pope had no copies of these letters. See Lord Mansfield's statement, 4 Burr. 2397.

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It seems that the book was in

print, when the injunction was obtained. Lord Hardwicke held that a book of letters was within the grounds and intention of the act of Anne, as much as any other work.