Woolsey agt. Judd and others. have no redress in equity or at law. He cannot say that his letters have value as literary compositions, or that he meant to publish them for his own benefit; he has therefore no property that a court of equity can be required to guard from invasion; and as there is no violation of any of his rights of property, he can recover no damages in an action at law. An indignant public may condemn the vile treachery of the clerk, but it is a treachery that equity will not prevent, and the law refuses to punish. Such is the doctrine of Sir THOMAS PLUMER, and, I regret to say, the doctrine in Hoyt agt. Mackenzie. We cannot, however, believe that such is, or ever has been, the doctrine of the common law, and that it has found no favor in England; but, on the contrary, has been decisively rejected, as the case next to be cited will conclusively show. In Gee agt. Pritchard, (2 Swanston, 402,) the last of the English cases, it is interesting to observe with what a gentle yet firm hand Lord ELDON Sweeps away the unsubstantial theories and distinctions of this VICE-CHANCELLOR, and, scattering doubts that ought never to have been raised, resettles the law upon its old and true foundation. The case was before him on a motion to dissolve the injunction which he had previously granted, forbidding the publication, by the defendant, of a number of private and confidential letters, which had been written to him by the plaintiff in the course of a long and friendly correspondence. The plaintiff was a widow lady, and the defendant the natural son of her late husband; and they had lived for many years on terms of great intimacy and kindness. Disputes, however, had arisen between them relative to the property left by her husband; and in consequence of these, at the request of the plaintiff, he had returned to her the original letters; but he had kept copies, from which he now claimed the right to publish them, in vindication of his own proceedings and conduct. Two questions were raised and fully argued by the most eminent counsel then at the chancery bar. First, whether the plaintiff had such a property in the letters as entitled her to forbid their publicacation-it being fully admitted that they had no value whatever as literary compositions, and that she never meant to publish sors. Woolsey agt. Judd and others. them; and, second, whether her conduct towards the defendant had been such as had given him a right to publish the letters in his own justification or defence. These questions were properly argued as entirely distinct, and each, was explicitly determined by the Lord CHANCELLOR in favor of the plaintiff. The motion to dissolve the injunction was accordingly denied, with costs. It has been said, that it was through considerable doubts that Lord ELDON struggled to this decision: but the doubts which he expressed related solely to the question, whether it ought originally to have been held that the writer of letters has any property in them after their transmission. He had no doubts whatever that such was the established law, and that he was bound to follow the decisions of his predecesHe expressly says, that he would not attempt to unsettle doctrines which had prevailed in his court for more than forty years, and could not therefore depart from the opinion which Lord HARDWICKE and Lord APSLY had pronounced in cases (Pope agt. Curl, Thompson agt. Stanhope) which he was unable to distinguish from that which was before him. (2 Swanston, 450.) Subsequently, in support of his opinion that the plaintiff had a sufficient property in the original letters to authorize an injunction, he refers to the language of Lord HARDWICKE, (quoting the exact words, in Pope agt. Curl,) as proving the doctrine, that the receiver of letters, although he has a joint property with the writer, is not at liberty to publish them without the consent of the writer; which is equivalent to saying that the latter retains an exclusive right to control the publication. He then adverts to the decision of Lord APSLY in Thompson agt. Stanhope, as following the same doctrine, and declares that he could not abandon a jurisdiction which his predecessors had exercised, by refusing to forbid a publication in a case to which the principle they had laid down, directly applied. (Id. pp. 424-427.) He then says, "Such is my opinion; and it is not shaken by the case of Lord and Lady Percival agt. Phipps;" and significantly adds, "I think it will be extremely difficult to say where the distinction is to be found between private letters of one nature, and private letters of another nature;" by “diffi Woolsey agt, Judd and others. cult," plainly meaning "impossible," since if a case could exist in which the distinction could be made, it was the case then before him, in which it was certain that the letters were not written for publication, nor then meant to be published-had no literary merits to render them worthy of publication, and if published would have no pecuniary value, consequently were not, in the sense of Sir THOMAS PLUMER, literary compositions, and literary property. We do not see how it was possible to overrule more effectually the distinction, made by Sir THOMAS PLUMER, between private letters of one nature and those of another, and the doctrine which he founded on that distinction, than by refusing to apply them in a case to which, if they were ever to be admitted as law, they were evidently applicable, and in the most emphatic sense of the term. It has, indeed, been said that the decision of Lord ELDON, in Gee agt. Pritchard, is not at all inconsistent with the observations of the VICE-CHANCELLOR in Percival agt. Phipps, and was not intended to overrule them. It is admitted that Lord ELDON decided that Mrs. Gee had a property in the letters which authorized him to grant and continue the injunction; but it has been insisted that the property, which he held himself bound to protect, was her property in the letters as a material chattel-that is, her property in the paper on which the letters were written, and which was vested in her in consequence of their having been returned by the defendant, and being then in her possession. But, with high respect for the learned judge by whom this has been said, we find it impossible to believe that the ground of Lord ELDON's decision was such as has been stated. Had such been his meaning, Lord ELDON would never have referred to the decisions of Lord HARDWICKE and Lord APSLY, as having established the principle by which he meant to be governed. Neither in Pope agt. Curl, nor in Thompson agt. Stanhope, was there a return of the original letters; and in the last case the material property in the letters, it was admitted, was vested in the defendant by an absolute gift from the writer. Any reference to these cases, had the ground of Lord ELDON's opinion, that Mrs. Gee had a property Woolsey agt. Judd and others. in the letters which entitled her to an injunction, been such as has been supposed, would have been unnecessary and irrelevant; and had he not been fully aware that his opinion was inconsistent with the observations of his VICE-CHANCELLOR, he would not have said that "it was not at all shaken by Percival agt. Phipps;" nor would he have spoken at all of the difficulty of making a distinction between private letters of one nature and those of another, had he not been urged to make the distinction, and deemed it necessary to overrule it. There are other reasons which make it impossible for us to believe that the meaning of Lord ELDON was such as has been imputed to him. As the letters had been returned to Mrs. Gee, we cannot understand how her property in the paper, which was in her actual possession, could be violated or endangered by a publication from the copies which the defendant had kept— and it is not pretended that she had any property in the paper on which these copies were written. And were a property merely in the paper on which letters are written a sufficient ground for an injunction to restrain their publication, it is manifest that the receiver, who all agree, unless he had returned the letters, has a property in the paper, would have the same right to obtain such an injunction, as the writer: yet we have seen that, in Pope agt. Curl, Lord HARDWICKE dissolved the injunction as to all the letters written to Mr. Pope, upon the ground that, although as receiver he owned the paper, he had no right as such to control and forbid the publication. It is very true, as the learned judge to whose peculiar exposition of Gee agt. Pritchard we refer, has remarked, that Lord ELDON, in that case, disclaimed any right to interfere by an injunction, upon the ground, either that the publication of the letters by the defendant would be a breach of confidence, or would tend to wound the feelings of the plaintiff. It is true, he expressly said, that he could exercise jurisdiction on no other ground than that of property in the plaintiff. But the property which he affirmed to exist, and held himself bound to protect, was that which Lord HARDWICKE, in Pope agt. Curl, had clearly defined—the property which in all cases remains in Woolsey agt. Judd and others. the writer of letters-the property with which he does not part on sending them to the person to whom they are addressed, and which, so long as they exist, entitles him to say that, without his consent, they shall not be published. The property of Mrs. Gee, which Lord ELDON meant to protect, was intellectual, not material, not her property in the paper on which her letters were written, but in the letters themselves, as the media of intercourse, conveying her thoughts and wishes to an absent person-as communications of facts, and of her sentiments and feelings. It was these which she did not choose should be exposed to the world; and it was to prevent this exposure, as involving a violation of her property, that the injunction was granted. It is not meant to be denied that Lord ELDON, in the close of his opinion in Gee agt. Pritchard, does advert to the return of the letters by the defendant as a material fact; but he adverts to it not as a fact creating or establishing the plaintiff's title to relief, but as excluding a defence which might otherwise have been relied on as a bar to his granting it. The defendant, it has already been said, claimed a right to publish the letters in vindication of his own conduct; and in reference to this claim Lord ELDON said, that although the defendant, as receiver of the letters, had a joint property in them, so long as he retained the possession, which might have justified his intended publication, yet that, by returning the letters, he had relinquished this property, and renounced any right of publication he might previously have had.* Had it been possible for us, after a very careful examination of Gee agt. Pritchard, to entertain any doubts that the import and effect of the decision are such as we have stated, those doubts would probably have been yielded to the reasoning and authority of Mr. Justice STORY, who, with an entire decision, has adopted and acted upon the same construction. We refer Vice-Chancellor M'COUN, in Wetmore agt. Scovill, (3 Edwards, 515,) the case to which the above observations refer, was doubtless misled by the marginal note of Mr. Swanston, the reporter, which is certainly so expressed as to place the decision of Lord ELDON upon the sole ground of the return of the letters. |