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tions, he observed, and proved the justness of his taste in the observation, that letters never intended to be published, and written on familiar subjects, are usually more interesting and valuable than those elaborately written and originally intended for the press.

We have here, then, a positive decision that private letters, although not intended to be published, and however familiar and trivial the subjects to which they relate, are a legitimate subject of a statutory copy-right, which a court of equity is bound to protect; and it is an obvious and necessary conse quence of this decision that the writer of such letters has an absolute right to forbid their publication by another, since by such a publication, if not restrained by an injunction, his own right to publish them for his own benefit, under an exclusive copyright—a right inherent in him and his representatives, until it is chosen to be asserted-would be defeated. Had not this consequence, obvious and necessary as it is, been overlooked, the obligation of a court of equity to protect, by an injunction, the writer of such letters, without any other inquiry than into the fact of his authorship, could never have been drawn in question by any who admit the authority of the decision itself.

The second objection which was urged by the defendant's counsel in Pope agt. Curl, was far more plausible. It was, that the sending of letters is in the nature of a gift to the receiver, and, consequently, that the writer retains no property at all.

The answer of Lord HARDWICKE to this objection I shall give in his exact words as reported, in order that it may be seen how entirely they exclude any reasonable doubt as to its import and effect. His words are-"I am of opinion that it is only a special property in the receiver. Possibly the property in the paper may belong to him, but this does not give a license to any person whatsoever to publish them (the letters) to the world; for at most, the receiver has only a joint property with the writer." Such were the grounds upon which this eminent judge continued the injunction as to the letters written by Mr. Pope, but dissolved it as to those which he had received, plainly be

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cause, as receiver, he had no right of property which entitled him to control their publication. The decision was made in 1741. There was no appeal. It has been, from that time to the present, unquestionable and unquestioned law. Doubts have been raised, it will hereafter be seen, as to its meaning and application; none whatever as to its controlling authority. Chancellor WALWORTH himself refers to it as evidence of that common law which our first state constitution declared could only be altered by legislative authority, and which he held himself bound to follow. If, therefore, he departed from the positions it established, we have his own acknowledgment that he erred.

What, then, are the propositions which Lord HARDWICKE, by his decision in Pope agt. Curl, established as law? It seems to us, that by the plain and necessary interpretation of his language, they are these :-First, That the receiver of letters has only a special or qualified property, confined to the material on which they are written, and not extended to the letters as expressive of the mind of the writer. Second, That neither the receiver thereof nor any other person has any right to publish the letters without the consent of the writer. And, lastly, That the property which the writer retains gives him an exclusive right to determine whether the letters shall be published or not; and, when he forbids their publication, makes it the duty of a court of equity to aid and protect him by an injunction. It appears to us equally certain that these rules are laid down, and were meant to be laid down, as universal in their application, as embracing all letters, whether intended to be published or not, and whatever may be the subjects to which they relate. Not only was there no intimation that there is any distinction between different kinds or classes of letters, limiting the protection of the court to a particular class; but the distinctions that were attempted to be made, and which seem to be all that the subject admits even, expressly rejected as groundless.

The next case-Thompson agt. Stanhope, (Ambler, 737,) which is perhaps even stronger than Pope agt. Curl-came before Lord BATHURST, (then Lord APSLY,) in 1774. The

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executors of Lord Chesterfield filed the bill to enjoin the publication, by the widow of his son, of those celebrated letters which, for a series of years, he had written to her husband; and also the publication of certain characters, probably not very flattering, which he had drawn in writing of some of his contemporaries. The motion to dissolve the injunction was made on the ground that Lord Chesterfield had himself given to the widow both the letters and the characters-and the fact seems to have been admitted. But it was contended, on the part of the plaintiffs, that there being no proof of an express authority to publish, none could be implied from the gift, and that consequently the exclusive right to control the publication remained in Lord Chesterfield, and had passed to his representatives. The Lord CHANCELLOR was of this opinion, and, declaring himself bound by the authority of Forrester agt. Waller, and Pope agt. Curl, continued the injunction. It does not appear, from the report, to have been alleged that the letters or characters were written by Lord Chesterfield with any view to their future publication, or that the publication of either was intended by the plaintiffs.

We come next, after a lapse of nearly forty years, and of more than seventy from the decision of Lord HARDWICKE, to the case of Lord and Lady Percival agt. Phipps and another, (2 Ves. & Beames, 19,) and we find here, not in the decision itself, but in the somewhat desultory, and wholly extra-judicial remarks of the vice-chancellor, Sir THOS. PLUMER, the true and only source of all the doubts and difficulties that have been permitted to embarrass the question, and have, unfortunately, led to a conflict of decisions. The bill prayed for an injunction to restrain the publication, by the defendants, of certain private letters, which, it was alleged, had been sent by Lady Percival to the defendant Phipps, and in its frame bore an exact resemblance to the complaint before us. It was described by the VICE-CHANCELLOR "as the naked case of a bill to prevent the publication of private letters, not stating the nature, subject, or occasion of them, or that they were intended to be sold as a literary work for profit, or were of any value to VOL. XI.

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the plaintiffs." Upon this bill, the injunction prayed for was granted by Lord ELDON; and that it was granted upon full deliberation, is evident from the fact that, not considering the statements in the bill sufficiently explicit, he required from Lady Percival, in order to bring the case within Pope agt. Curl, a positive affidavit that she was the author of the letters. (2 Ves. & Beames, 26.) The answer of the defendants, upon which their counsel moved to dissolve the injunction, set forth certain facts, tending to show that the publication of the letters was necessary to repel a charge of falsehood and forgery, which the plaintiffs had publicly made against them. And it was upon the sole ground that the conduct of the plaintiffs had given to the defendants a perfect right to use the letters for their own vindication, that the VICE-CHANCELLOR dissolved the injunction; and the propriety of this decision is not questioned.

But although this was the sole ground of his decision, and the consideration, therefore, of any other question quite unnecessary, the VICE-CHANCELLOR, both upon the hearing and on delivering his final judgment, chose to discuss the general question, how far, and in what cases, a court of equity will interpose to protect the interest of the author of private letters. And in the course of his observations he lays down, in positive terms, the novel doctrine, that it is only when the letters-[in his own words]" are stamped with the character of literary compositions," that the writer can be protected by an injunction against their publication. And he, in effect, asserts that the character and value of the letters of Pope and Lord Chesterfield, as literary compositions, was the true and only ground of the decisions in Pope agt. Curl, and Thompson agt. Stanhope, and consequently that these cases were inapplicable to that which was before him—it not being pretended that such was the character of Lady Percival's letters. The VICE-CHANCELLOR did not say, in terms, that Lord ELDON erred in granting the injunction; but if his remarks were just, and the distinction he stated well founded, such is the necessary consequence. If his doctrine was law, and his interpretation of

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former decisions correct, it is clear that the injunction ought not to have been granted.

The vindication of Lord ELDON from the criticisms and implied censure of Sir THOS. PLUMER, will seem, to all who have any knowledge of their relative standing and authority as jurists and judges, a very gratuitous task-and it is a task from which we should certainly have abstained, had it not unfortunately happened that the rash speculations of the latter have been followed, in preference to the deliberate judgments of the former.*

It is undoubtedly true that the letters of Pope, and of Lord Chesterfield, possessed a far more than ordinary value as literary compositions; but there is not the slightest evidence that it was upon this distinctive character and value that Lord HARDWICKE, in Pope agt. Curl, or Lord BATHURST, in Thompson agt. Stanhope, founded his decision.

On the contrary, in each case, the doctrine is laid down in general terms, with no intimation that there is or can be an exception, that the writer of letters has an exclusive right not only to publish them himself, but to forbid their publication by others; and that a court of equity is bound to enforce his prohibition by its own injunction. That these cases were thus understood by Lord ELDON is certain, since otherwise the injunction which the VICE CHANCELLOR dissolved would never have been granted.

It cannot, therefore, be said that the views of Sir THOMAS PLUMER derive any countenance from prior decisions. It remains to be seen whether they have any solid foundation in reason. All that he says proceeds upon a distinction which, it seems to us, either does not exist at all, or, if exists, has no practical value. In other words, furnishes no rule which a

Extract from the private diary of Sir SAMUEL ROMILLY, under date of April 9th, 1813,-about two months before the decision in Percival agt. Phipps :— "A worse appointment than that of PLUMER to be Vice-Chancellor could hardly have been made. He knows nothing of the law of real property, nothing of the law of bankruptcy, and nothing of the doctrines peculiar to courts of equity," Memoirs of the Life of Sir Samuel Romilly, Vol. 2, p. 310.