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sertion is, that some

court of justice can rationally or consistently apply. The asprivate letters are literary compositions, and some are not. Those which are, may be protected as property; those which are not, may be stolen and published with impunity-the writer has no property, and sustains no injury.

But we agree with Mr. Justice STORY, (2 Story R.,) that every letter is, in the general and proper sense of the term, a literary composition. It is that and nothing else; and it is so, however defective it may be in sense, grammar, or orthography. Every writing, in which words are so arranged as to convey the thoughts of the writer to the mind of a reader, is a literary composition; and the definition applies just as certainly to a trivial letter as to an elaborate treatise, or a finished poem. Literary compositions differ widely in their merits and value, but not at all in the facts from which they derive their common

name.

To create, therefore, the distinction that has been assumed to exist, it is evident that the words, "literary composition," must be understood in a peculiar and restricted sense, which renders them applicable to a particular class of letters, and not to any others; and it is just as evident that, to enable courts of justice to act upon the distinction, this restricted sense of the words must be ascertained and defined. This is only saying, that the distinction must be understood before it can be applied. Hence the necessary inquiry is, what are the peculiar circumstances, the distinctive qualities, or attributes, that must be found to exist, in order to stamp upon letters the character of literary compositions? Upon this inquiry, the observations of Sir THOMAS PLUMER throw no light whatever. The learned judge shrouded his meaning in loose and vague generalities— and from these we must endeavor to extract it. He probably meant to say, either that letters are not to be regarded as literary compositions, unless it appears that they were originally written with the intent to publish them, or that their author would derive from their publication a certain profit, or that from their intrinsic merits their publication would be a benefit

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to the world. Intended publication, pecuniary value, or intrinsic merit must furnish the requisite test-nor are we aware that any other has been suggested or can be stated.

Now it is manifest, that if either of these circumstances is to be admitted as the test of literary composition, it is a test which cannot be limited in its application to private letters. It is just as applicable, not only to all other unpublished manuscripts, but to all printed books. If a letter, destitute of certain qualities or attributes, is not a literary composition, neither is a book to which exactly the same qualities are wanting. The inherent qualities of the manuscript are not altered by its publicationand certainly no addition is made to them by the process of printing. Hence, if private letters, which, in the restricted sense which Sir THOMAS PLUMER adopts, are not literary compositions, as not within the spirit of the acts of parliament securing a copy-right to authors,-(for such is the argument,)— are not entitled to protection as literary property, it follows, that printed books which, in the same sense, are not "literary compositions," as equally not within the spirit of these acts, ought to be excluded from the benefit of their provisions. The statement of this necessary consequence is of itself a sufficient refutation of the whole doctrine of the VICE-CHANCELLOR; for assuredly it has never been pretended that the copyright of the author of a published book is liable to be impeached and defeated by inquiry into his intentions in writing it, or into the merits or value of his work as published.

If, therefore, the question, whether a book is a literary composition can never be raised, as involving that of the right of property in the author, there is a plain inconsistency in permitting the application of the test to unpublished manuscripts, whether private letters or of any other class. The writer of letters, if he choose to print them himself, may obtain a valid copy-right-and whether he will obtain it rests entirely in his own discretion: so long, however, as the letters are preserved, the right of obtaining the statutory copy-right exists in the writer and his representatives; and while it exists it is, in its nature, a right of property which a court of equity is as much

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bound to protect as any other. It is a right, however, which the court effectually defeats by permitting, in any case, the publication of letters without the consent of the writer. There can be no exclusive copy-right, if all may publish with impunity.

To pass from these general observations.

The proposition, that in familiar letters, not intended by the writers to be published, there can be no property which a court of equity will protect from invasion, is precisely that which, in Pope agt. Curl, and in Thompson agt. Stanhope, is expressly overruled. There is no evidence that the letters of Pope, and his friends, or those of Lord Chesterfield, were originally written for the press. And in relation to those of Pope, the report shows that the fact was admitted to be otherwise. There is, moreover, a positive absurdity in making the character of any manuscript, as a literary composition, depend upon the extrinsic and accidental fact of the intention to publish. Apply this test, and the plays of Shakespeare are not literary compositions, since there is every reason to believe that not a single play was written with any view to its future publication.

There is the same confusion of ideas and language, in making the character of a manuscript, and the right of property in the author, depend upon the accident of its value for publication— its pecuniary or marketable value. Booksellers are eager to purchase the copy-right in the autobiography of a shameless adventurer or self-convicted impostor; but we doubt whether one can be found within the limits of the Union who, even without any hazard of competition, would dare to publish, at his own risk and expense, the Principia of Newton, or the Systeme of La Place, or even a full edition of the prose works of Milton.

Rejecting, then, as we must, the tests "of intended publication," and "pecuniary value," it remains to consider whether the character of letters as literary compositions, and therefore literary property, may be determined by a reference to their

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contents and intrinsic merits-the merits of language and thought, style and sentiments.

It must be admitted that the differences, in these respects, between familiar letters, as between all other productions of the intellect, are wide and strongly marked, and fully justify their distribution by critics into many distinct classes; but we seriously deny that it is possible to extract from these differences any rule of classification, which a court of justice can be warranted to adopt as a rule of decision.

If the question, whether the letters of which the publication is sought to be restrained, from the nature of the subjects to which they relate, of the sentiments they convey, or the style in which they are clothed, deserve to be classed with literary compositions, is to be determined by the judge to whom the application for relief is made, it is evident that his determination must, and will be governed by his own personal, and it may be, peculiar opinions, taste, studies, and associations. The determinations in such cases will, therefore, be just as various and inconsistent as the literary taste and attainments, and the casual predilictions and prejudices of the judges by whom they are pronounced. The letters extolled by one as full of interest or instruction, will be condemned by another as utterly worthless. The injunction granted to-day will be dissolved, or, in cases not distinguishable, be denied to-morrow; and the questions of the right of property, and its title to protection, will be resolved, not by the application of rules of law to facts admitted or proved, but in the exercise of a discretion constantly varying and purely arbitrary. The decisions in most cases will appear to be, and in many will be, the mere result of accident or ignorance, prejudice or caprice. Whether the letters which he has written possess literary merits which render them worthy of publication, is a question which it belongs to the writer alone, and the public, to determine. It is exactly one of those which, from the necessary and total absence of any fixed rules or principles of decision, a court of justice can never rightfully entertain.

It follows, from these remarks, that the test of intrinsic

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merits must also be rejected. At first view, it seems less unreasonable than that "of intended publication," or "pecuniary value;" but, as it admits no certain definition, and is necessarily shifting, and precarious in its application, it is, in reality, more objectionable than either. Any definite rule is better than an unlimited discretion.

copy-right we have before reThe VICE-CHANCELLOR CONan unpublished manuscript, The exclusive right of the entire profits of publication.

The error, which lies at the foundation of all the reasoning of Sir THOMAS PLUMER, is that which an able writer, to whose valuable treatise on the law of ferred, has very clearly stated. founds the rights of property in with those in a published book. author of the book is to take the That of the writer of the manuscript, to control the act of publication, and, in the exercise of his own discretion, to decide whether there shall be any publication at all. (Curtis on Copyright, p. 93.)

In making the right of property in letters depend on their value for publication, as the VICE-CHANCELLOR certainly does, he denies, by a necessary implication, that the writer has any title to relief at all, when his object is not to publish, but suppress. If the character or value of letters, as literary compositions, alone creates a right of property in the writer, these facts, when an action is brought to restrain an unlicensed publication, as those upon which the right to maintain the action depends, must necessarily be averred in the complaint. If averred in the complaint, they may be denied in the answer; and if so denied, they must be proved upon the trial. The plaintiff must then either abandon his suit, or make the necessary proof by making the letters themselves, or copies, exhibits in the cause-and thus publish them himself to all the world, to prevent their publication by the defendant.

According to this doctrine, should a faithless clerk, who has secretly taken copies of the confidential business letters of the merchant who employed him, from motives of revenge, and with the design of blasting the credit and ruining the fortunes of his employer, threaten to publish them, the merchant would