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and sentiments which, in their connection, form the written composition which his manuscript embodies and preserves. This composition—whether, as such, it has any value or not, is immaterial—is his work, the product of his own labor, of his hand and his mind; and it is this fact which gives him the right to say that without his consent it shall not be published, and makes it the duty of a court of equity to protect him in the assertion of that right by a permanent injunction. Of this, it is ⚫ a conclusive proof, that the right to control the publication of a manuscript remains in the author and his representatives, even when the material property has, with his own consent, been vested in another. The gift of the manuscript it is settled, unless by an express agreement, carries with it no license to publish. (Duke of Queensbury agt. Shebbean, 2 Eden, 339; Thompson agt. Stanhope, Ambler, 737.) Not only is the right of property in the author not subject to the limitation which some have supposed to exist, but it is absolute as well as unlimited. When he applies for an injunction, it is not necessary that he should aver that he desires to take from the defendants, or to secure to himself, the profits of publication. As owner, he has an absolute right to suppress as well as to publish; and he is as fully entitled to the protection and aid of the court, when suppression is his sole and averred object, as when he intends to publish. In the remarkable case of Southy agt. Sherwood, which, at the time, was the subject of great discussion in England, the avowed object of Mr. Southy was to suppress entirely and forever the publication of a very rash and intemperate production of his youth, and the injunction prayed for would certainly have been granted, had not Lord ELDON been of opinion that the character of the work, as a seditious libel, by destroying the author's right of property, deprived him of the claim he would otherwise have had to the protection of the court. (Southy agt. Sherwood, 2 Merivale, 435; Earl of Granard agt. Dunhen, 1 Ball & Beat., 207; Curtis on Copyright, 157, 158, 159.)

The genaral doctrine, as to the right of an author in an unpublished manuscript, being such as we have now endeavored

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to explain, it is evident that it casts the burthen of the argument upon those who contend that private letters must be excepted from its application. If the doctrine is just as applicable to them as to all other manuscripts, it is clear that the plaintiff is entitled to the relief which he claims. It must be shown, therefore, that there are valid reasons for admitting an exception of private letters, or that the exception, whether reasonable or not, is established by decisions that we are not at liberty to disregard. Whether we are bound to adopt the reasons or follow the authorities that are relied on, are the questions next to be considered.

There are only two grounds upon which it has been insisted that private letters are an exception from the general doctrine. The first is, that the transmission of the letters vests the whole property in the receiver, and operates as an absolute gift. The second-that if the writer retains any property at all, it is only in such letters as are stamped with the character and possess the attributes of literary compositions.

The first ground of exception, as plainly overruled by the decisions, was very properly abandoned by the counsel of the defendants. He rested his whole argument upon the second; and, holding himself excused from any close examination of the English cases, relied upon the decision of Chancellor WALWORTH, in Hoyt agt. M'Kenzie, as a binding and conclusive authority. (3 Barb. Ch. Cases, 324.)

Now, it cannot be denied that the decision in Hoyt agt. M'Kenzie is an express authority in favor of the defendants; and if, as is asserted, we are under a positive obligation to follow that decision, it must be owned that we have no power to grant to the plaintiff the relief which he claims. The Chancellor, in that case, dissolved an injunction, which the plaintiff had obtained to restrain a very mischievous and dishonest publication of confidential letters, upon the sole ground "that it was evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author for the purpose of publication, which he never would consent to have published."

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They are the exact words of the Chancellor which we have quoted, and it is plain that they amount to a positive denial that an author of private letters, which he wishes to suppress, and not to publish, has any right of property at all—that he has any right to say that they shall not be published by another, unless he means to publish them himself. The Chancellor did not deny that, as a general rule, the author of an unpublished manuscript has at common law an exclusive right of property, the violation of which may justly be prevented by an injunction; for he distinctly admits that this is the settled law. But he certainly meant to deny that the plaintiff, in the case before him, had any property in the letters which he desired to suppress, and consequently, the position upon which he rested his judgment may be briefly stated as follows:-Private letters not intended to be published, have no value whatever; and when they have no value for the purpose of publication, they are not property. In a subsequent part of his opinion, the Chancellor expresses, in terms, his approbation of the final decision of Vicechancellor M'COUN, in Wetmore agt. Scovill, (3 Edwards Ch. R., 515,) that letters not professing the attributes of literary compositions are not, as property, entitled to protection.

In proceeding to examine, as we now propose, whether it is possible to reconcile this opinion of the late Chancellor, with the law as settled by prior decisions, and among these the very cases to which he has himself referred, we must not be understood as meaning to detract in any degree from the weight and authority to which his decisions, as those of a very able, learned and laborious judge, are generally and justly entitled. The judges of this court have frequently manifested the high sense which they entertain of his judicial merits, and it is with reluctance that we dissent, on any occasion, from any deliberate judgment which he has pronounced. But we deny that a recent and solitary decision of any judge, however eminent, ought to be regarded by us as conclusive evidence of the existing law; and we deny that we are bound by the decisions of the Chancellor, in the same sense in which we are bound by those of the court of ultimate resort. We stand now in the same re

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lation to the court of appeals, as that in which he stood to the court of errors; and in the cases in which we exercise an equitable jurisdiction, have succeeded to all the powers which he possessed in similar cases. We have, therefore, exactly the same right to review, and, when convinced that errors have intervened that ought not to be perpetuated, to overrule his decisions, that he himself, and his successors in office, had not the court of chancery been abolished, might and would have exercised. It is known to us all that the cases are numerous in courts of equity, as well as of law, in which judges have felt it their duty to reconsider and reverse their own decisions and those of their predecessors; and deplorable, indeed, would be the actual state of the law, (as none who have examined the valuable treatise of Mr. Greenleaf, on overruled cases, will doubt,) had not these powers of revision and correction been frequently and firmly exercised. We must all remember that the judgment in Hoyt agt. M'Kenzie, from the sanction which it apparently gave to a very dishonorable proceeding, excited general surprise and regret, so that even those who admitted its legality, were anxious to relieve the law from the reproach which it occasioned. We are convinced that this reproach, that of giving a sanction to immorality, is one to which the law was never justly liable, and from the continuance of which it ought, therefore, to be freed.

The proposition which we hold to have been settled as law, for more than a century before the judgment in Hoyt agt. M'Kenzie was pronounced, is that which was laid down by Sir SAMUEL ROMILLY, and affirmed by the decision of Lord ELDON, in Gee agt. Pritchard, (2 Swanston, 418.) It is that "the writer of letters, though written without any purpose of publication or profit, or any idea of literary property, possesses such a right of property in them, that they can never be published without his consent, unless the purposes of justice, civil or criminal, require the publication." If this proposition be true, it follows that the distinction which has been supposed to exist between letters possessing a value as literary compositions, and ordinary letters of friendship or business, is wholly ground

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less. The right of property is the same in all, and in all is entitled to the same protection.

The earliest case, and that which may be truly said to have established the law, since its controlling authority is admitted in all that follow, is Pope agt. Curl, (2 Ath., 342.) An unknown person, by means never explained, had possessed himself of a large number of private and familiar letters, which had passed between Mr. Pope and his friends Swift, Gay and others, and had printed them secretly in Ireland, in a book entitled "Letters from Swift, Pope and others." The defendant, a piratical bookseller in London, had purchased and advertised for sale the printed copies of this book—and the plaintiff had obtained an injunction restraining the sale.

It was upon a motion to dissolve this injunction, that the case came before Lord HARDWICKE. It is briefly reported, but there is no difficulty in collecting either the grounds upon which the motion was rested, or those upon which it was denied.

It was contended by the defendant's counsel, that as the printed book contained only letters never intended to be published, and written on familiar subjects-such as inquiries after the health of friends, and other similar topics-it was not a learned work, and therefore was not within the meaning and intention of the statute of Anne, (8 Anne, c. 19,) vesting the copy-right of printed books in the authors. The argument was, that as the writer of such letters could not, by printing them, secure a copy-right to himself, he could have no right to prevent them from being printed by others. Lord HARDWICKE put an end to this argument, by observing that it would be extremely mischievous to make a distinction between a book of letters, published by the permission of the writer or receiver, and any other work; and to show that the objection that the letters were not written to be published was groundless, he remarked, that it would apply equally to sermons which the authors never intended should be published, but which are collected from his notes, and published after his death. In a subsequent part of his opinion, and in reply to the same objec