Hoyt v. Mackenzie , 1848 N.Y. LEXIS 202 ( 1848 )

The Chancellor.

, I have, no .doubt ttiat by the principios if the common law. the. author of „or bqok. or other literary, production, whether in the shape, of letters or otherwise,.has. a, right of property therein; at least until it has.been published with, his assent. The case of Webb v. Rose, decided by Sir Peter Jekyll in 1732, where the clerk of a deceased conveyancer was restrained from printing the decedent’s drafts, was based upon that principle. This was followed by the decision of Lord Hardwicke, in the case of Pope v. Curl, (2 Atk. Rep. 342,) in 1741, where the defendant was restrained by injunction from publishing Pope’s letters to Dean Swift; and by the decision in the case of Forrester v. Waller, a few days previous, where the defendant was restrained from publishing the complainant’s notes which had been surreptitiously obtained. Lord Northington also, in the case of The Duke of Queensbury v. Shebbeare, (2 Eden’s Rep. 329,) which came before the court of chancery in England in 1758, refused to dissolve an injunction which restrained the printing of an unpublished manuscript history of the reign of Charles the second, by Lord Clarendon; a copy of which manuscript had been taken by permission of the personal representative of the author, and which the person receiving the same had sold to the defendant for publication, without authority. Indeed it appears to have been conceded by the counsel, as well as by all the judges, in the case of Millar v. Taylor, (4 Burr. Rep. 2303,) that by the common law an author was entitled to the exclusive right to print his own literary productions, until they had been once printed and published by his authority; and could maintain an action for the damages which he might sustain by their being surreptitiously printed by others. And Mr. Justice Yates only differed in opinion with Lord Mansfield and the other judges of the court of king’s bench, in that case, upon the question whether an author did not lose his exclusive right, by printing and publishing his work himself; except so far as his right to the copy was protected by the statute on that subject. It is true, when the question as to the rights of an author afterwards came before the house of lords, one of the twelve judges of England thought the author had no exclusive right to his unpublished work, at the common law; and two others thought he could not maintain an action at the common law against any person who printed and published his literary pro duction without his consent, unless such person obtained the copy by fraud or violence.

The decisions to which I have referred settle the law on the subject in England. And as they were all made before the separation of the colonies from the mother country, I consider ‘them as binding upon this court. I should therefore affirm the decision of the vice chancellor, so far as relates to the three letters written by the complainant himself, if those letters were in fact of any value to him as literary productions, or if his right to multiply copies thereof was worth any tiling to him. In relation to the letters written to him by other persons, however, if those letters were of any value to the authors, as literary productions, or for publication, the cases of Pope v. Curl, before referred to, and of Thompson v. Stanhope, (Amb. Rep. 737,) show that the right belonged to them, and not to the complainant; who received their letters without any authority express or implied to publish them.

It is evident, however, in relation to all of these letters, that the complainant never could have considered them as of any value whatever as literary productions. Fora letter cannot be considered of value to the author, for the purpose of publication, which he never would consent to have published; either with or without the privilege of copy right. It would therefore be a perversion of a correct legal principle, to attempt to restrain the publication of these letters, upon the ground that the writers thereof had an interest in them as literary property. No one, it is true, whose moral sense is not depraved, can justify the purloining of private letters, and publishing them for the purpose of wounding the feelings of individuals, or of gratifying a perverted public taste. And it is hardly possible that any one who has been connected with the publication and sale of the pamphlet annexed to the complainant’s bill, could for a moment have supposed that these letters were honestly obtained, for publication; or that they were published with the approbation of the writers thereof, or of the complainant to whom most of' them were directed. But this court has no jurisdiction to restrain and punish crime, ./$ to enforce the performance of moral duties, except so far aa they are connected with the rights of property. The vice chancellor, in the case of Wetmore v. Scovel, (3 Edw. Ch. Rep. 515,) very correctly decided that the court of chancery could not properly exercise a power to restrain the publication of pivato letters, on the ground of protecting literary property, where they possessed no attribute of literary composition. And upon that principle the application of the appellant should have been granted in this case. The order appealed from must therefore be reversed ; and the injunction so far as it affects the rights of the appellant, must be dissolved.