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elaborate and beautiful writing, eloquent description, may all be found in letters of friendship, as much as personal anecdote or topics of domestic interest. What is the friendly correspondence of the learned, but, in a critical sense, literary composition; in which knowledge, taste and eloquence, on subjects of general and literary interest, are so copiously displayed, that the treasures which lie hidden in private repositories doubtless exceed in value and importance all that the world has yet possessed in published epistolary writing? Yet it would be extremely inaccurate to apply to such writings the term literary compositions, in the sense in which alone that term can have any legal acceptation; for in this sense it must mean compositions written with a view to their publication as literary works. If the style or the subject is to be the test of the literary character of a letter, in a court of justice, a vast mass of private correspondence would at once fall under that designation; but if this test is to decide the question of protection from unauthorized publication, a still greater mass of familiar writing, that can exhibit no atoning merits of style or subject to console the feelings wounded by publication, must be left out of the pale of human rights. Fortunately for the peace of mankind, the law establishes no such distinction.'

ing the character of a literary work, when they were not written for publication? No such test can be applied.

1 Mr. Justice Story, in a case

from which I have already quoted, thus sums up the doctrine in relation to letters. "There is no small confusion in the books, in reference to the question of copyright in let

The question is probably disposed of in this country, by the statute which gives a remedy against

ters. Some of the dicta seem to suppose, that no copyright can exist, except in letters, which are professedly literary; whilst others again recognize a much more enlarged and liberal doctrine. Without attempting to reconcile, or even to comment upon the language of the authorities on this head, I wish to state what I conceive to be the true doctrine upon the whole subject. In the first place I hold, that the author of any letter or letters, (and his representatives,) whether they are literary compositions, or familiar letters, or letters of business, possess the sole and exclusive copyright therein; and that no persons, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same upon their own account, or for their own benefit. But, consistently with this right, the persons to whom they are addressed may have, nay, must by implication possess the right to publish any letter or letters addressed to them, upon such occasions, as require or justify the publication or public use of them; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach. If he attempt to publish such letter or letters on other occasions, not justifiable, a court of equity

will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author; and a fortiori, if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. In short, the person to whom letters are addressed has but a limited right, or special property (if I may so call it,) in such letters, as a trustee, or bailee, for particular purposes, either of information or of protection, or of support of his own rights and character. The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives as well as the general copyright. A fortiori, third persons, standing in no privity with either party, are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion. If the case of Perceval v. Phipps, (2 Ves. & Beam. 21, 28,) before the then vice-chancellor, (Sir Thomas Plumer,) contains a different doctrine, all I can say is, that I do not accede to its authority; and I fall back upon the more intelligible and reasonable doctrine of Lord Hardwicke, in Pope v. Curll, (2 Atk. R. 342,) and Lord Apsley, in the case of Thompson v. Stanhope, (Amb. R. 737,) and of Lord-Keeper Henley, in the case of the Duke of Queensbury v. Shebbeare, (2 Eden R. 329; 4 Burr. R. 2330,) which Lord Eldon has not scrupled to hold to be binding authorities upon the point in

the unauthorized publication of any manuscript whatever.1

The question has been mooted in this country, whether official letters, addressed to the government by public officers, can be the subject of copyright. In these cases, there seems to be a right on the part of the government to publish or to withhold from publication, from principles of public policy, according to the exigencies of the public service. But this exception in favor of the government, which has been

Gee v. Pritchard, (2 Swanst. R. 403, 414, 415, 419, 426, 427.) But I do not understand, that Sir Thomas Plumer did, in Perceval v. Phipps, deny the right of property of the writer in his own letters; and so he was understood by Lord Eldon in Gee v. Pritchard; who, however, said, that that case admitted of much remark. Indeed, if the doctrine were otherwise, that no person, or his representatives, could have a copyright in his own private or familiar letters, written to friends upon interesting political and other occasions, or containing details of facts and occurrences passing before the writer, it would operate as a great discouragement upon the collection and preservation thereof; and the materials of history would become far more scauty than they otherwise would be. What descendant, or representative of the deceased author, would undertake to publish, at his own risk and expense, any such papers; and what editor would be willing to employ his own learning, and judgment, and researches, in illustrating such works, if, the moment they were successful and possessed the sub

stantial patronage of the public, a rival bookseller might republish them, either in the same or in a cheaper form, and thus either share with him, or take from him the whole profits? It is the supposed exclusive copyright in such writings which now encourages the publication thereof, from time to time, after the author has passed to the grave. To this we owe not merely the publication of the writings of Washington, but of Franklin, and Jay, and Jefferson and Madison, and other distinguished statesmen of our own country. It appears to me, that the copyright act of 1831, (ch. 16, § 9,) fully recognizes the doctrine for which I contend. It gives by implication to the author or legal proprietor of any manuscript whatever, the sole right to print and publish the same, and expressly authorizes the courts of equity of the United States to grant injunctions to restrain the publication thereof, by any person or persons, without his consent" See also 2 Story's Eq. Jurisp 947, 918. The same doctrine substantially is held in France. Renouard. tom. ii. p. 294, 295.

1 Act of Cong. Feb. 3, 1831, § 9.

thought to stand upon principles analogous to those which give a right to private individuals to publish the letters of their agents upon fit and justifiable occasions, is not supposed to make such letters common property, to be published by any person who may see fit, without the sanction of the government, nor to take away the property of the writers or their representatives.1

But the occasion, on which this doctrine was alluded to, did not require a direct adjudication of the question whether the despatches of a public officer, addressed to his government, can be the subject of

1 Folsom v. Marsh, 2 Story's R. 100, 113. In this case Mr. Justice Story said, "In respect to official letters addressed to the government, or any of its departments, by public officers, so far as the right of the government extends, from principles of public policy, to withhold them from publication, or to give them publicity, there may be a just ground of distinction. It may be doubtful, whether any public officer is at lib erty to publish them, at least in the same age, when secrecy may be required by the public exigencies, without the sanction of the government. On the other hand, from the nature of the public service, or the character of the documents, embracing historical, military, or diplomatic information, it may be the right, and even the duty, of the government, to give them publicity, even against the will of the writers. But this is an exception in favor of the government, and stands upon principles allied to, or nearly similar to, the rights of private individuals, to whom letters are addressed

by their agents, to use them and publish them, upon fit and justifiable occasions. But assuming the right of the government to publish such official letters and papers, under its own sanction, and for public purposes, I am not prepared to admit, that any private persons have a right to publish the same letters and papers, without the sanction of the government, for their own private profit and advantage. Recently the Duke of Wellington's despatches have (I believe) been published, by an able editor, with the consent of the noble duke, and under the sanction of the government. It would be a strange thing to say, that a compilation involving so much expense, and so much labor to the editor, in collecting and arranging the materials, might be pirated and republished by another bookseller, perhaps to the ruin of the original publisher and editor. Before my mind arrives at such a conclusion, I must have clear and positive lights to guide my judgment, or to bind me in point of authority."

private copyright.1 In France, it seems to be considered that official documents are not subjects of the privilege of authors.2

III. LECTURES. The right of property in lectures, oral and written, has been recognized in England by statute. The 5 and 6 Wm. IV. chap. 65, sec. 1, enacts, that from and after the first day of September, 1835, the author, or his assignee, of lectures to be delivered in any school, seminary, institution, or other place, shall have the sole right to publish them; and the 3d section declares that no person allowed for a certain fee and reward or otherwise to attend and be present at any lecture delivered at any place, shall be deemed and taken to be licensed, or to have leave to print, copy and publish such lectures, only because of having leave to attend them. But the 5th section provides that the operation of the act is to be restricted to lectures, of the delivery of which notice in writing shall have been given to two justices living within five miles of the place of delivery, two days before the delivery thereof. And it is further provided, that the act shall not extend to any lecture or lectures delivered in any university or public school, or college, or on any public foundation, or by any individual, in virtue

The letters and documents of an official character, published by the defendants in this case, were not more than one-fifth part of the whole, and the court did not expressly decide

the question concerning them. See 2 Story's R. 114.

2 See a very able discussion of the question in Renouard, tom. 2, p. 132, et seq.

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