ownership entitles him to say that his composition shall not be published. What value it may have to society, or how far it may be useful to the public, is immaterial. A letter may be without literary value, and destitute of any quality to render it useful to the community, and yet it may be valuable to the writer. A brief business note may play an important part in commercial transactions. A communication relating to domestic matters, though void of general interest, may be valued by a circle of relatives and treasured by their descendants. Publication may bring upon the writer financial embarrassment, humiliation, or substantial injury. Whatever may be the nature of the letter, its merit, or its value, the law gives to the writer the right to determine what use, not within the implied purposes for which it is sent, shall be made of its contents. It has never been doubted that this right exists before the letter has gone from the writer; and it is equally clear that the right is not lost by the transmission of the letter. Rights of Receiver. What rights the receiver has in a letter has not been clearly defined. It is conceded that the material on which it is written becomes his property. In Pope v. Curl, Lord Hardwicke expressed the opinion that "possibly the property in the paper may belong to him." This doctrine was expressly affirmed in the recent English case of Oliver v. Oliver,2 where it was held that the receiver becomes the owner of the material property in the letter, and may maintain an action for detinue against any person into whose possession the letters have passed. In this case the action was brought against the writer, to whom the letters had been voluntarily returned by the receiver. The question of fact was submitted to the jury, whether the letters had been returned with the understanding that the writer might keep them as his own property, or whether they had been merely deposited with him as a bailee. The jury found the latter to be the fact, and the court held that the material property in the letters belonged to the receiver. In harmony with this doctrine, it has been held by the Kentucky Court of Appeals that the writer has no legal remedy for recovering his letters after they have passed into the posses sion of the receiver. Hence the receiver is not bound to preserve the letters for the benefit of the writer. He may destroy them as soon as received. There seems to be no principle of property to prevent him from giving them to another; but such person would thereby acquire no rights of publication.2 It has never been claimed that the receiver, with an exception which will be considered further on, acquires any property in the contents of the letter, or any right to publish it without the consent of the writer. In Pope v. Curl it was expressly held that Pope had no right to interfere with the publication of the letters which had been written to him by Swift, for the good reason that they were the literary property of the latter. The privileges of the receiver are restricted to a private use of the letter. He may have a right to read it to others, or to let others read it, when such reading does not amount to a publication. But, without the express or implied consent of the writer, he is not entitled to make of the letter any use which may be properly considered as a publication. In Eyre v. Higbee, it was held by the New York Supreme Court, that letters written by Washington to his secretary, Colonel Tobias Lear, were not salable assets in the hands of the administrator of the latter, but that they belonged to the widow and next of kin.5 May Receiver Publish for Purposes of Vindication? The doctrine has gained currency that the receiver of a letter acquires in its contents a special or qualified property or right, which entitles him to publish it for the purpose of vindicating his reputation from false charges or unjust imputations made by the writer. This theory was first announced in 1813, by Sir Thomas Plumer, who on this ground dissolved an injunction, 1 Grigsby v. Breckinridge, 2 Bush (Ky.), 480. See also Granard v. Dunkin, infra. 2 Grigsby v. Breckinridge, supra. This statement must be qualified by a reference to Granard v. Dunkin, 1 Ball & B. 207, wherein the Irish Chancery Court, in 1809, granted an injunction in favor of the executrix of Lady Tyrawley, enjoining the threatened publication of letters which had been written to the latter, and ordering them to be delivered to the former. The decree for such delivery was proper, because the property in the paper had belonged to Lady Tyrawley; but she had acquired no title to the literary property in the letters which had been received by her, and hence there was no ground on which the injunction against publication could rest. 4 2 Atk. 342. 5 22 How. Pr. (N. Y.) 198. which had been granted by Lord Eldon, restraining the defendant in Perceval v. Phipps from publishing letters written by the plaintiff. This question has not been a direct issue in any other reported case; but the views of Sir Thomas Plumer are supported by dicta in two American cases.2 In one of these, Mr. Justice Story declared in emphatic, but extrajudicial, language that the receiver is entitled to publish a letter for purposes of vindication; but, in his treatise on Equity Jurisprudence, he has expounded the law to the contrary.3 1 2 Ves. & B. 19. ? Folsom v. Marsh, 2 Story, 111; Woolsey v. Judd, 4 Duer (N. Y.), 407. Lord Eldon would not deny that there might be a case, such as that of Perceval v. Phipps, “where the acts of the parties supply reasons for not interfering;" but in the case before him he found that publication was not necessary to vindicate the receiver, and held that whatever right to publish the latter might have had he renounced by returning the letters to the writer, although he retained copies. Gee v. Pritchard, 2 Swans. 402, 426. In Palin v. Gathercole, 1 Coll. 565, the defendant, on motion to dissolve the injunction which had been granted restraining him from publishing certain letters written by the plaintiff, pleaded that their publication was for the purpose of vindicating his reputation. Vice-Chancellor Bruce, without passing on the merits of the question, held that the defendant was barred from making this defence, and refused to dissolve the injunction. 3 In Folsom v. Marsh, Mr. Justice Story, after declaring that the writer has a right to restrain the unauthorized publication of his letters, said: "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 justifi ably 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 infor mation 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 It seems to be conceded that the privilege of publication for vindicatory purposes is personal to the receiver, and cannot be exercised by a third person, either with or without the consent of the receiver.1 The doctrine that the receiver acquires the right to publish a letter for the purpose of vindicating himself against charges or imputations made by the writer, although it has received strong extrajudicial approval, is in conflict with the fundamental principles on which all the cases relating to property in letters have been decided. These cases have been, and all similar cases must be, determined on principles of property. Protection has been extended to the writer, because he has literary property in the letter which he has written, and because his rights are not lost by the transmission of the letter. Unlicensed publication by the receiver of a letter has been declared unlawful, on the sole ground that it is a violation of the literary property therein. The receiver can acquire no right to make a public use of the literary property in a letter, unless he has the consent of the writer, or has become vested with a right of ownership. His right to publish is to be determined exclusively on principles of property. But the privilege of publication for purposes of vindication is not a right of property, and cannot be defended on any principles of crets, or personal concerns." Vol. ii. § 948. to subserve their own private purposes of interest or curiosity or possession." 2 Story, 110. In his Equity Jurisprudence, the same authority says: For the purposes of public justice, publicly administered, according to the established institutions of the country, in the ordinary modes of proceeding, private letters may be required to be produced and published. But it by no means follows, that private persons have a right to make such publications on other occasions, upon their own notion of taking the administration of justice into their own hands, or for the purpose of vindicating their own conduct, or of gratifying their own enmity, or of indulging a gross and diseased public curiosity, by the circulation of private anecdotes, or family se This doctrine is manifestly contrary to the views above quoted from the opinion in Folsom v. Marsh. The decision in this case was rendered in 1841. The first edition of the Equity Jurisprudence appeared in 1836. But it cannot be said that the latest or the modified views of Judge Story on this question were expressed in the judicial opinion cited; for the exposition of the law given in the first edition of the Equity Jurisprudence was retained unchanged in the following editions, of which the third was published in 1843, property. To give to the receiver this privilege is to empower him to publish valuable literary compositions, for the purpose of redressing a real or supposed injury to himself, and thus to destroy a safeguard which the law has guaranteed to the property of the writer. It makes the receiver the sole judge of whether the wrong is real or fancied, and empowers him, in order to redress an alleged injury to himself, to inflict a greater one upon the writer. The law specially provides remedies for injuries done to the reputation. If the receiver of a letter has suffered in reputation or feelings by any thing said, written, or done by the writer, he is left to seek redress by the means usual and proper in such cases. He has no right to take the law into his own hands, as it were, and to appropriate the property of another, in order to remedy a wrong for which the law has specially provided. |