of the characters, at his request, but kept copies of them; and she also kept the rest of the original letters, which he did not ask for. After Lord Chesterfield's death, she was about to publish the letters, not including the characters, when his executors applied for an injunction. Lord Apsley, C. granted the injunction, upon the ground that the defendant had not obtained the consent of Lord Chesterfield or his executors.1

The case of Perceval v. Phipps, next in point of time, seems to admit the right of the holder of letters to publish them, where the publication is necessary to the defence of his character against an unjust imputation. The acts of the parties in this case supplied reasons for not restraining the publication.

In Gee v. Pritchard, the doctrine of property in the writer, in letters of familiar friendly correspondence, was admitted by Lord Eldon, as well as the qualified property of the receiver; but as the latter had returned the letters to the writer, with the declaration that he did not consider himself entitled to retain them, keeping copies without apprizing her, it was held, under the circumstances, that he had renounced the right of publication, even if he previously had it for purposes of self-vindication.3

In explaining the grounds upon which the court acts in these cases, his lordship observed, that the

1

737.

Thompson v. Stanhope, Amb.

Lord and Lady Perceval v. Phipps, 2 Ves. & B. 19.

3 Gee v. Pritchard, 2 Swanst. 402, 427.

property is qualified in some respects; that, by sending a letter, the writer has given, for the purpose of reading it, and in some cases of keeping it, a property to the person to whom the letter is addressed; yet, that the gift is so restrained, that, beyond the purposes for which the letter is sent, the property is in the sender. Under such circumstances, it is immaterial whether the intended publication is for the purpose of profit or not. If for profit, the party is then selling; if not for profit, he is then giving that, a portion of which belongs to another. Property, therefore, is the ground of the interference of the court.

From these decisions it is not difficult to extract the general doctrines which govern the interference of courts of equity, in cases of this class. 1. The leading principle is, that the writer of letters has such a qualified property in them, as will intitle him to an injunction to restrain their publication by the party written to, or his assignees or representatives. 2. That this qualified property descends to representatives. 3. That it is a right of property independent of the right to take the profits of publication, and consequently does not depend upon or involve the pecuniary value of the letters proposed to be published. 4. That for the purposes of justice publicly administered, in the ordinary modes of proceeding, or to vindicate his character from an accusation publicly made, the receiver of letters may publish them.1

Perceval v. Phipps, 2 Ves. & B. 19. Gee v. Pritchard, 2 Swanst. 418, 426, 427. Folsom v. Marsh,

2 Story's R. 100, 110, 111. 2 Story's Eq. Jurisp. § 948.

But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character.' This doubt has probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former

'By Sir Thomas Plumer, vicechancellor, in Perceval v. Phipps, 2 V. & B., and Mr. Chancellor Walworth, in Brandreth v. Lance, 8 Paige's R. 24, 26. In the former case, the vice-chancellor thought that the letters of Pope and of Lord Chesterfield derived their right to protection from their character as literary compositions. But there is no evidence in either case, as reported, to show that either of the writers intended those letters for literary compositions, or wrote them with a view to publication. In Pope v. Curll, Lord Hardwicke dealt with the subject, on one point, as a book, because it was already printed by the defendant. See 2 Atk. 342. With regard to Lord Chesterfield's Letters, however elegantly written, the case presents only a domestic correspondence between father and son. They certainly were not written for publication, so far as we can judge from the report in Ambl. 737. In like manner, Mr. Chancellor Walworth (8 Paige, 27,) supposes that Lord Eldon, in Gee v. Pritchard, went the length of allowing the remedy for a right of property, where the plaintiff's interest was no other

than that of violated feelings. He says, "The complainant's bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only." 8 Paige, 28. The learned chancellor seems to understand Lord Eldon's use of the term "property" to refer to a subject of pecuniary value: whereas it is clear that his lordship uses it in reference to private correspondence, which has no pecuniary value for purposes of publication, when he speaks of a joint property in the writer and the receiver of a letter. See his observations, cited in the text, ante, from 2 Swanst. 415. This is equally manifest from his lordship's remark on the case of Perceval v. Phipps, which he did not understand to have denied Lady Perceval's property in the letters. See 2 Swanst. 415. So, too, he says that his predecessors did not inquire whether the intention of the writer was or was not directed to publication. Ib. p. 414. Such an intention must be the only sensible test of the literary character of a letter.

is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interests of feeling, and to describe a substantial right or legal interest.1

If this be the correct view of the adjudged cases, it follows that there can be no sound distinction between private letters or letters of friendship or business, and letters intended as literary compositions, so far as the remedy afforded to the writer by courts of equity is concerned. In either case, the writer proceeds, when seeking that remedy, upon a right which the courts have recognized as a right of property; though in the case of letters which the writer intended for publication and profit, his right has the other element of an anticipated loss of pecuniary profits. Indeed, there is a moral reason why the rights of property should not be deemed to

1 Gee v. Pritchard, 2 Swanst. 403. Southey v. Sherwood, 2 Meriv. 435. Folsom v. Marsh, 2 Story's R. 100, 108, 109. Denis v.

Leclerc, 1 Martin's Louis. R. 297. 2 Story's Eq. Jurisp. § 945, 948 a. Ante, note, p. 93.

exist only when the letters are literary compositions, which has been pointed out by an eminent jurist. "If the mere sending of letters to third persons is not to be deemed, in cases of literary composition, a total abandonment of the right of property therein by the sender; a fortiori, the act of sending them cannot be presumed to be an abandonment thereof in cases where the very nature of the letters imports, as matter of business, or friendship, or advice, or family or personal confidence, the implied or necessary intention and duty of privacy and secrecy.1

There is another, and, as it seems to me, decisive objection to the supposed distinction between private letters and letters of a literary character. It is impossible to make any such distinction, in point of fact. Literary subjects, elegance and finish of style,

2 Story's Eq. Jurisp. § 947. Mr. Godson has divided epistolary writings into three classes: 1. Letters originally intended for the press, constituting a literary work, to which the form of epistolary composition is given as a matter of dress. 2. Letters which have actually passed from one person to another, but which, from the nature of the subject, and the literary character of the writer, may be considered, when a great number of them are collected, as forming a literary work. 3. Common letters on business, and on every subject that can occur in the intercourse of private life, but which never could have been intended to be published, and therefore cannot be considered as literary compositions, and entitled to protection, on the ground of a copyright existing in them. As to the latter class, the

learned author thinks, that the ground on which courts of equity have interfered to prevent publication, is "not upon copyright, but that the publication is a breach of contract, or confidence, or when they are to be made a source of profit, at the risk of wounding private feelings." Godson on Patents, &c. 327, 328. It will be seen that I have taken a very different view both of the authorities, and of the supposed distinction between different classes of letters. As to the authorities, it is clear that they proceed upon a property in the writer, and upon nothing else, whether the letters are of one class or another. As to the distinction, it may well be asked, what degree of scholarship, what number of letters, and what subject, are to determine whether a man's letters are to be considered as tak