A letter is an object of property. There is nothing a man may so emphatically call his own, or more incapable of being mistaken, than his ideas thrown upon paper. By the Roman law, a messenger detaining a letter was prosecuted as for forgery. Nuntius non restituens litteras ei, cum mandatum restituere susceperit, incidit in crimen falsi3

3

The laws of France recognize a letter as a chattel which may be the object of larceny. An action lies; and even a criminal proceeding may be instituted against a person who, having undertaken to carry a letter, detains it. "Il y a action en justice, et même on peut prendre la voie extraordinaire contri celui qui s'etant chargé de porter une lettre, se n'est point acquitté de son message et la retient.”4

It is said to have been the opinion of Lord Hardwicke," says Waddeston,5 " that the receiver of letters has no legal right—I speak not of the delicacy or propriety of such a measure-to publish them; be

Onpov (poor and vulgar), though he himself uses it in his third epistle to Dionysius. He prefers the word oppovεi, or the words yvœÐɩ бƐαvтov, as a better salutation. But he did not banish the word xaipɛɩv. It is prefixed to the letter χαίρειν. sent by the apostles and elders to the brethren at Antioch, to which appwoo is subjoined; and so also the letter from Claudius Lysias to Felix, Acts xxiii., which letter has a claim, from the situation in which we find it, to be regarded as genuine; the words περιεχουσαν τον τυπον τουτον, being properly translated in our Bible, "after this manner," and not "in this form," or "tenor.” Diogenes Laërtius notices the different salutations prefixed to the letters of the Greek philosophers. –Diog. Laërt. lib. iii. s. 61.

cause, at most, he has but a special property in them, jointly with the writer. The same doctrine1 has been since confirmed and established. But the reason, attributed to Lord Hardwicke, that a special property is left in the writer, seems, at least, so equivocally expressed as to need explanation, for surely every receiver of letters may destroy them. It is, however, a different thing to publish them to the world, without the writer's consent, from which mischievous consequences might ensue."

2

3

As to the question whether the sender and receiver of a letter have each a joint property therein, and as to Lord Hardwicke's opinion that such a joint property existed, a late writer says: "If his lordship used this language, it serves to show that he had not considered the subject so as to have formed a definite opinion. A special property, and a joint property, are two very different things. It may not be amiss to note that the case came up on motion, and may, therefore, have had less consideration than it would have had on a regular hearing.""

"Again, if the receiver and the sender have a 'joint property' in the letter, they would enter joint tenants or tenancy in common."

"If such were the case, how could one burn a letter received by him. If he were only a tenant in common he would be accountable in law and in equity, from the moment he received the letter, for its cus

4

Vid. Gyles v. Wilcox, 2 Atk. 143, where Lord Hardwicke said, in relation to Reade v. Hodges, cited before him, “that case was upon a motion only, and at that time I gave my thoughts without much consideration, and therefore I shall not lay any great weight upon it."

tody and its use, and who would be a correspondent on those terms? There is certainly no suggestion of any such right anywhere that we know of. The Roman law asserted that the owner of the manuscript was the owner of the thing written upon it, except that it directed that the manual labor of writing should be recompensed for to the scribe,1 but no intimation was made of any "joint property."

Neither," says the same writer above quoted, “it seems to us, is there a general or a special property remaining in the writer of matter not literary, which he has sent to its destination. If he has a special property, who has the general, and if he has the general, who has the special? Letters in regard to matters of business or friendship-aside from the question whether they had a literary value, although they pass to the executor or administrator, are not assets in their hands, and cannot be made the subject of sale or assignment by them, but belong to the widow or next of kin. If the writer has the special property and the receiver the general, then the writer is the bailee of the receiver, which is absurd; and if the writer has the general and the receiver the special property, then the receiver of a letter is, from the moment of its reception, the bailee of its writer, and liable to respond to him in law and in equity, which, it appears to us, is equally absurd."

Clearly the only right to be enforced by the sender of a letter against the holder, is a right to prevent publication of literary matter in which he has a property. The receiver may read it aloud, recite its contents to others; he may perhaps copy it (if he do not

1 Înst. 2, 1, 33; 3 Inst. 109; and the same law provides for the case of one man's painting on another's canvas (Inst. 2. I, 1, 34). See ante, p. 14.

print it), and distribute copies; he may sell it, if he efface the contents, but it seems he should not do so otherwise. 1

1

2

In Eyre v. Higbee, where the plaintiffs were the executors of Colonel Tobias Ford, private and military secretary to General Washington (and whose letters: to Colonel Lee are the subject-matter of the controversy), it was also held that (says Story, J.) "the mere sending of letters to third persons is not to be deemed, in cases of literary composition, a total abandonment of the right of property therein by the sender; à fortiori the act of sending them cannot be presumed to be an abandonment thereof in cases where the very nature of the letters imports, as matter of business or friendship, or advice, or family or personal confidence, the implied or necessary intention and duty of privacy and secrecy."s

And the same learned jurist, sitting in the case of Folsom v. Marsh, summed up on the whole law in the words following:

"The author of any letter or letters, and his. representatives, whether they are literary compositions or familiar letters, or letters of business, possesses. the sole and exclusive copyright therein; and no

2

1 Am. Law Reg. vol. 1, p. 437.

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22 How. Pr. 198. Vid. also Gee v. Pritchard, 2 Swans.. 402; 2 Story Eq. § 945; Eden on Inj. 2 Am. ed. 324, 325;. Drannard v. Dunkey, 1 Rol. & Beat. 209.

1 Eq. Jur. 947.

2 Story's Rep. III.

I.e., the right to copyright. We think in this case Judge Story unquestionably uses the word in this sense, as identical with the word "copy," in the common law. "I use the word 'copy,'” said Lord Mansfield,in Millar v. Taylor, 4 Burr. 2396,. "in the technical sense in which that name or term has been used for ages, to signify an incorporeal right to the sole printing and publishing of somewhat intellectual, communicated by

So,

persons--neither those to whom they are addressed, nor other persons have any right or authority to publish the same upon their own account, or for their own benefit. 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 justifiably 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. 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 à 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 information or protection, or of support of his own rights and character. letters." "The 'copy' of a book," said Aston, J., in the same case, Id. 2346, “seems to have been not familiarly only, but legally used as a technical expression of the author's sole right of printing and publishing that work." See also per Willes, J., Id. 2311.