injunction was granted to restrain publication of letters written by an old lady to a young man to whom she had been foolishly attached, there being an agreement not to publish them, but to surrender them for a valuable consideration.1

"Were the court of chancery," says Copinger, " to interfere on any other principle than that already stated, individuals would be deprived of their defense in proving agency; orders for goods; the truth of an assertion, or some other fact, merely because the testimony establishing the true and genuine circumstances was contained in letters in which a pretended copyright was claimed."2

rest.

"Independent of property," said Vice-Chancellor McCoun, "and disconnected therefrom, there is no ground or principle on which the jurisdiction to restrain the publication of private letters can properly The publication of letters having relation exclusively to matters of private concern, written in the confidence of friendship, and being of a private and confidential nature, not intended for the public eye, carries with it the evidence of a wicked, depraved, and sinister purpose, and its own dishonor; for I know of no other law, than that which may be found in a just sense of propriety and honor, to forbid the publication of private letters or papers, not having the character of property about them.. It is a gross breach of honor and trust. . After all that can

be done by the judicial tribunals of the country, much must be left to the dictates of conscience, to the usages

1 Anon. v. Eaton, cited 2 V. & B. 247. Vid. also Story Eq. Jur. 2 Esp. 944, 950; Denis v. Leclerc, 1 Martin (La.), 297; Eyre v. Higbie, 35 Barb. 502.

On Copyright, 30; Godson on C. 330. * Wetmore v. Scoville, 3 Edw. Ch. 515.

1

of society, and to the corrective influence of public sentiment and opinion." And Chancellor Walworth cites these words approvingly in a later case in the same state; and, while characterizing the violation of good morals and good manners, which, however, a court of chancery cannot undertake to enforce-says further: "It is evident however, in relation to all these letters, that the complainant could never have considered them as of any value whatever as literary productions; for a letter cannot be considered as of value to the author, for the purpose of publication, which he would never have consented to have published, either with or without the privilege of copyright. But we have already seen that the doctrine upon which the vice-chancellor proceeded must now be abandoned as impracticable, and that the sender's literary property in a letter cannot be restricted by the pupular meaning of the word "literary."

The case of Earl of Granard v. Dunkin,3 seems very distinctly to sustain and to protect the doctrine of property in the receiver of a letter. In that case, it was sought to restrain the defendant from publishing letters from Lady Moira and Lady Granard to Lady Tyrawley during her lifetime. Lady Granard claimed these letters, not as their writer, but because she was the executrix of Lady Tyrawley; and it was

These rights are, however, reciprocal; for if a letter contain private and confidential matter, which it would be scandalous or injurious to publish, it cannot make any difference, if it be published at all, whether it be published by writer or sender; and if the writer could enjoin the receiver from publishing such matter, the receiver could equally have his remedy to restrain its publication by the writer.

This was before the doctrine laid down in Prince Albert v. Strange, however, which would seem to hold emphatically the reverse (2 De G. & Sm. 694, &c.).

I Ball. & Beat. 207.

decreed that her own, as well as Lady Moira's letters, being Lady Tyrawley's, vested in her executrix.

200. Neither will equity leave the firm ground and province of contracts and borrow jurisdiction from its sister courts, for the purpose of punishing a crime,1 nor can it enforce, apart from the right of property of which alone it will take cognizance, the performance of purely moral duties. She will only restrain the publication of letters, written and sent in the course of epistolary correspondence, when there is a right of property in the writer, upon which its jurisdiction can rest.

3

So, in the case of an application for an injunction to restrain publication of a pamphlet, entitled "The Life, Exploits, Comical Adventures, and Amorous Intrigues, of Benjamin Brandling, M.D., V.P.L.V.S., a distinguished pill-vendor, written by himself, &c.," the court held, that, as it did not appear to be an invasion of any right of either literary or medical property, although unquestionably a gross libel upon the complainant, equity could not interfere to grant

one.

It is very evident," said Chancellor Walworth in that case, “that this court cannot assume jurisdiction of the case presented by the complainant's bill, or of any other case of like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot be safely intrusted to any tribunal." "The court of star chamber in England," said the chancellor, " once exercised the power of cutting off the ears, branding the foreheads, and slitting

1 Ante, p. 29.

Hoyt v. Mackenzie, 3 Barb. Ch. 320; 2 Story Eq. 948, a..

• Brandreth v. Lance, 8 Paige, 24.

the noses of the libelers of important personages. And, as an incident to such a jurisdiction, that court was undoubtedly in the habit of restraining the publication of such libels by injunction. Since that court was abolished, however, I believe there is but one case upon record in which any court either in this country or in England has attempted, by an injunction or order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation. In the case to which I allude, the notorious Scroggs, chief justice of the court of king's bench, and his associates, decided that they might safely be intrusted with the power of prohibiting and suppressing such publications as they might deem to be libelous. They accordingly made an order of the court prohibiting any person from printing or publishing a periodical entitled The Weekly Packet of Advice from Rome, or a History of Popery.' The house of commons, however, considered this extraordinary exercise of power on the part of Scroggs, as a proper subject of impeachment, and I believe no judge or chancellor, from that time to the present, has attempted to follow that precedent."1

In case, however, of an explicit agreement by its receiver to refrain from publishing a letter, courts might interfere to prevent its publication upon other grounds, namely, to enforce and uphold a trust, or to decree a specific performance of the agreement That is, where the agreement was made before the receipt of the letter.s

201. The leading case upon the subject of letters

1 Hudson's Star Chamber, 2 Collect. Jurid. 224; 8 Howell's State Trials, 198.

* Gee v. Pritchard, 2 Swans. 402.

1 Am. Law Reg. 456.

still continues to be Pope v. Curl,' decided in 1741, in which Lord Hardwicke continued an injunction, obtained by the poet Pope, to restrain the defendant from publishing a collection of his letters.

"The first question," said Lord Hardwicke, “is whether letters are within the grounds and intention of the statute.? I think it would be extremely mischievous to make a distinction between a book of letters, which comes out into the world either by permission of the writer or the receiver of them, and any other learned work. Another objection has been made by the defendant's counsel, that, where a man writes a letter, it is in the nature of a gift to the receiver. But I am of opinion that it is only a special property in the receiver. Possibly the property of the paper may belong to him, but this does not give a license to any person whatsoever to publish them to the world, for at most the receiver has only a joint property with the writer." And to the objection insisted on by the defendant's counsel, that this was a sort of work which did not come within the meaning of the act of parliament, because it contained only letters on familiar subjects, and inquiries after the health of friends, and therefore could not properly be called a learned work, his lordship replied: "It is certain that no works have done more service to mankind than those which have appeared in this shape, upon familiar subjects, and which, perhaps, were never intended to be published, and it is this makes them so valuable; for I must confess, for my own part, that letters which are very elaborately written, and originally intended for the press, are generally the most insignificant, and very little worth any person's read

1 2 Atk. 342. See remarks of Lord Mansfield in Millar v Taylor, 14 Buir, p. 2397. * 8 Anne, c. 19.