Grigsby v. Breckinridge

JUDGE ROBERTSON delivered the opinion of the court: In its aim, its principles, and its results, this is a novel and intensely interesting litigation. Alfred Shelby was the first, and Robert J. Breckinridge the last, husband of Virginia Hart, who died on the 8th of May, 1859, while she waff Breckinridge’s wife. She had carefully preserved, a! large number of friendly and — 482 — confidential letters, which she had received during her girlhood, widowhood, and wedded life. And, as proved by an answer to interrogatories, made testimony by the Code of Practice, she had, on her death-bed, given and delivered them to Mrs. Grigsby, an only daughter of the first marriage. And, on the 9th of September, 1859, Breckinridge, who, in the meantime, had been appointed administrator of his deceased wife’s chattels, brought this suit in equity against the appellants for enjoining the publication of any of the said letters, and for compelling the surrender of all of them to himself. His petition, without intimating that the publication would affect the memory of his wife, or in any way subject him to loss or annoyance, claims that he is entitled to those letters, either as administrator or surviving husband; fend nowhere, as mere author, does he claim the possession of the letters written by himself. As to all her letters, he says : “ The letters are valuable and useful to him ; and, as administrator of his wife and as surviving husband, he is entitled to their possession.” This is the only asserted title to the possession of any of the letters. As to business papei’s, consisting of accounts axid receipts for her own expenditures for hex'self and family, and which the appellants surrendered to him by their answer, his petition says: “ The plaintiff is advised that said papers, at the time of removal, being in the actual custody of his wife, were legally in his possession, and were legally iier property. That if he is .not, as husband, the owner. of them, still, as suxwivor of his wife and as administrator of her estate, he is entitled to them. That, as the writer of those letters addressed to his wife, he is interested in their contents, and is entitled to be guarded against any improper use or exposure of those confidential communications.” — 483 — Thus, while he claims title to the possession of the accounts and receipts, he does not, as author, claim title to the possession of the letters written by himself, but only an injunction or other safeguard against their publication. The answer by the appellants denied his right to any of the letters in any one of his threefold characters, and claimed that the respondent, Mrs. Grigsby, was entitled to their custody and curation as a sacred deposit confided to her by her dying mother to keep. The circuit court perpetually enjoined the publication and ordered the surrender to appellee of the letters written to his wife by himself, and also of all letters received by her from other persons during their intermarriage. The revision of that judgment involves interesting considerations of principle, analogy, and policy. As the judgment excludes letters received before the last marriage, except those written by the last husband, and includes all letters received during that marriage, the circuit judge did not consider the appellee’s authorship the sole test of his right, but must have thought that, either as administrator or husband, he was entitled to relief as to all letters received by his wife from others as well as himself while she was his jvife. And even on this hypothesis, the judgment is unreasonable and inconsistent; for, if any of her letters passed to him either as administrator or husband, the right was so devolved on him only because she had some special property in them as her own; and having the same title to all her letters, whenever and from whomsoever received, he had, as administrator and husband, precisely the same right to all, and therefore to those received from her first husband and other friends before her last marriage. All the letters, including those written by the appellee before and. — 484 — during his intermarriage with Virginia Shelby, are described in his petition as merely friendly and confidential communications containing nothing which-could, if published, affect his interest or his character. There is property in even such letters. By sending them, the authors parted with their right to the possession, control, or reclamation of them without her consent, and gave her the exclusive right to read and keep them for their enduring memories and sentiments. .-This was her property, which might have been peculiarly valuable if estimated by only affectionis pretium, often exceeding the cash value. The authors also retained a qualified property in their contents which they alone had the right to publish for their own benefit; and therefore, and also because they reflected their emotions and sentiments, they had the right to enjoin publication by the recipient or any other person. This was the authors property to its full extent. These correlative rights of property are now established by abundant authority, fortified by principle and analogy. The ancient common law recognized the exclusive right of the author of a literary manuscript to publish it for his own profit. That venerable code being silent as to private letters, it was long a debatable and controverted question whether the same principle applied to them, and defined this reciprocal right of author and recipient. But, as such a manuscript may possess literary merits worthy of publication, and the author should have the right to decide for himself whether the publication would be useful to the public and profitable to himself, and as the letter, whether literary or not, is a transcript of his own mind, the modern common law, moulded by the power of adaptation and expansion, seems now to be — 485 — identical with the ancient, and applies the same doctrines to private letters — the same reasons, when sifted and expanded, apparently applying to each class of manuscripts equally and alike. A production of the mind is property in every essential sense in which a production of the hands is the producer’s property. And consequently in England, the mother of the common law, all her jurists and courts have long recognized the exclusive right of the author to publish his own literary manuscript; and, as it is a reflex of his own mind, and the publication of it may be profitable, the same authorities treat the right to publish as his property to that extent. But, as ordinary letters of friendship, or on business, may not be fit for profitable publication, many jurists and judges, ancient and modern, have denied that their authors, after delivery, have any property in them, and adjudged the entire property to be in the recipient. Nevertheless, the modern common law, as expounded by preponderating authority, seems to recognize the author’s right to publish even such letters as his property to the extent of that right, which he may protect by injunction against piracy or intrusion. And this may sufficiently appear from the following citations, British and American: British:—Pope vs. Curl, 2 Atkins, 342; Webb vs. Rose, 4 Burrows; Thompson vs. Stanhope, Ambler, 737; Forrester vs. Waller, Brown’s P. C.; Gee vs. Pritchard, Swanston, 42; Earl of Granard vs. Dunkin, 1 Ball & Beatty, 207; Millar vs. Taylor, 4 Burrows. American:—Woolsy vs. Judd, 4 Duer’s New York Reps., 380; Folsom vs. Marsh, 2 Story’s Reps., 100; Story’s Eq. Jur., sections 943 to 949, inclusive. These consecutive cases, filling a century, and authenticated by such names as Hardwicke, Bathurst, Mansfield, — 486 — and Eldon, in England, and Story, backed by the voluminous and able • opinion in the ease of Woolsy vs. Judd, in America, are not only very persuasive, but should be held by this court as conclusive against the conflicting opinions, comparatively few, inconsistent, and inconclusive. The cited cases recognize in the recipient of a private letter, sent without any reservation, express or implied, the general property, qualified only by the incidental right in the author to publish and prevent publication by the recipient, or any other person. And, as thus defined, such, and only such, is established as the property of each. And this general property implies the right in the recipient to keep the letter or to destroy it, or to dispose of it in any other way than by publication — the unqualified delivery of the letter being adjudged a gift of all the author’s right to it, except his right to publish if existing, and to prevent the publication of it without his consent. The author and the recipient cannot hold a'joint property, because that would entitle each to the possession, which, as to such a thing, would be absurd; nor, consistently with the adjudged cases, could the recipient’s property, like that of a bailee, be special, because that would imply an uncertain right carved out of an undefined general property of the author, contrary to the principle recognized by all consistent jurists. The author’s right to publication or non-publication being deemed his property, and only property, the protection of that property is the only adjudged ground of injunction against publication without his consent. Courts of equity have not yet assumed jurisdiction to enforce duties merely moral, or to prevent a breach of epistolary confidence or exposure of an epistolary secret in no way affecting any interest in property — however inconsistent such publication may be with honor or pure ethics. But the sole ground yet recognized — 487 — for injunction is the protection of property. In the case of Gee vs. Prichard, supra, Lord Eldon said : “ The argument has confirmed doubts which have often passed in my mind relating to the jurisdiction of this court over the publication of letters; but I profess this principle, if I find doctrines settled for forty years together, I will not unsettle them. I have the opinions of Lord Hardwicke and Lord Apsley, pronounced in cases of this nature, which! am unable to distinguish from the present. These opinions have been acquiesced in without application to a higher court.” Subsequent cases in England and America have conformed to that discreet recognition of stare decisis, and that eminent chancellor added: “ The doctrine is thus laid down following the principle of Lord Hardwicke: I do not say I am to interfere because the letters are written in confidence, or because the publication of them may-wound the feelings of the plaintiff; but if mischievous effects of that kind can be apprehended in cases in which this court has been accustomed, on the ground of property, to forbid publication, it would not become me to abandon the jurisdiction which my predecessors have exercised and refuse to forbid it — such is my opinion.” He further added: “The question will be, whether the bill has stated facts of which the court can take notice as a case of civil property, which the court is bound to protect. The injunction cannot he maintained on any principles of this sort, that if a letter had been written in the way of friendship, either the continuance or discontinuance of their friendship affords a reason for the interference of this court.” And Story, in second volume of his Commentaries, section 948, says: “ The only ground upon which jurisdiction has been maintained is a right of property, literary or otherwise, in the writer of the letter.” To the same — 488 — effect are the American cases of Wetmore vs. Scovill, 3 Edward's Chy. Rep., 315, and Hoyt vs. McKensie, 2 Barbour's Chy. Rep., 320. A majority of the American cases even deny the right of the author to enjoin the publication of a private letter on the ground of property. But, as before suggested, we incline to the conclusion that the w.eight of authority, fortified by analogy, preponderates in favor of the author’s special property in the publication, and in his consequential right to publish if he keejp or can procure a copy. But the recipient is not bound to keep the original for his transcription, inspection, or other use. There is no adjudged case or elementary dictum extending the author's right of property beyond this circumscribed and contingent range. And all the cases cited in this case thus limit and define it. Publication by the author is circulation before the public eye by printing or multiplied copies in writing. The like publicity by the act of the recipient would be an infringement of the author’s exclusive right, which he may prevent by injunction. Publication is the same thing in kind, whether by the author or the recipient, and consequently the recipient may read the letters to a friend or deposit them for safe-keeping without violating the author’s right of publication. See also Duke of Queensberry vs. Shebbeare, 2 Edin. Reps., 329, concerning Clarondon's History of the Rebellion; Southey vs. Sherwood, 2 Merivale, concerning Southey's “Wat Tyler;" Macklin vs. Richardson, Ambler, 694; Coleman vs. Wathan, 5 D. & E., 245; Bartlette vs. Crittenden, 4 McClean's C. C. Reps., 300. Consequently, as the author’s right to this kind of publication of a letter is the only property which may be protected by injunction, the recipient may rightfully make any use of the letter which will not, in the same sense, amount to publication, without violating the au — 489 — thor’s exclusive right or entitling him to enjoin such lawful and consistent use. In an able article on the author’s right to enjoin the publication of private letters, Parker, an eminent judge in Massachusetts and professor in the Harvard law-school, said: “ The receiver of a letter is not a bailee, nor does he stand in a character analogous to that of a bailee. There is no right to possession, present or future, in the writer. The only right to be enforced against the holder is a right to prevent publication, not to require the manuscript from the holder in order to a publication by himself. “ The right of the receiver, then, is to the whole letter. He may read it himself and to others, and recite it at meetings. He may do every thing but multiply copies, and perhaps he may do this, if he do not print them.” His argument, published in the Law Register of June, 1853, with Redfield’s apparent approbation, is very able, and is entitled to respectful consideration. With some slight exceptions, it harmonizes with our own views, and fortifies our own conclusions. As already shown, in all the adjudged cases there is not even an intimation of the author’s right to the possession or control of a private letter addressed to a friend, and no such title would be compatible with any of those cases, because it would, be inconsistent with any exclusive right as adjudged by all of them to be in the receiver. The universally admitted title of the receiver to the paper necessarily involves and implies the title to it as given and received with the manuscription upon it, which is the soul of the letter, and the enjoyment of which, with all its suggestive associations and endearing memories, was the object of sending it to the — 490 — chosen recipient. And, moreover, the simple fact that the author may enjoin the publication of all such letters, implies that, as mere author, he cannot, by suit, recover the possession; because, as the injunction is a frail security, the author, if entitled to the possession, would prefer to sue for that as the only safe assurance, and would not, as in all the cases, sue for an injunction only and depend on that alone. Thus we see the essential and characteristic difference between the right to enjoin publication and the right to compel a surrender of private letters, and the equally apparent and vital distinction between the author’s property resulting from his right to enjoin and the recipient’s property arising from his right to keep. And the cases establishing the first not only do not apply to the last, but, by inevitable implication, establish it, even if there had been no express adjudications to the same effect. And it seems to us that principle, analogy, and authority equally establish the right of the recipient of all such letters to keep and read them whenever, like an album of photographs, the inspection of the chirography and perusal of the contents, with all their reminiscences, may suggest cherished recollections or excite pleasurable emotions. And this right might in many cases, like the present, be invaluable property in the holder. As a logical sequence, this peculiar property, exclusively and essentially personal,, may be disposed of according to the holder’s discretion, subject only to non-publication to the public gaze in such a manner as to violate the author’s exclusive right. When any such letters, as those in this case may be presumed to be, are interesting reminiscents of friends living and dead, they are more prized by the true owner ' than by any other person. Who else as certainly as — 491 — Mrs. Breckinridge could be as much interested in often reading the letters written to her by her first husband when she was a girl and when she was his wife, and which she had so carefully preserved for that purpose ? And who else could be as much concerned to read and preserve those written to her by her last husband when she was a widow and when she was his wife ? Such was the character and such the extent of her property in the letters confided to the custody of her only daughter, and it would be mockery to call it her property if it be of less extent or legally subject to the control of her husband. Its peculiar character and dedication eminently distinguish it, like jewels, as her separate property, which she had the right, as between herself and husband, to keep and dispose of regardless of his will. And, as already indicated, her testamentary deposit of them with her daughter, to keep as memorials of her mother and her correspondents, was no wrongful publication of them. It seems to us, therefore, as a necessary consequence of the foregoing principles and authorities, that the appellee’s wife, when she was about to die, and could not, by her own custody, preserve her letters any longer, had a right to secure their continued preservation and enjoyment by a gift and delivery of them to her own daughter, to keep and enjoy, and whom she seemed to prefer to her surviving husband as the custodian of a deposit so consecrated by her feelings and long possession and usufruct with his acquiescence in her asserted right until after her death. And, by that solemn transfer and sacred trust, she passed all her own right as separate property in perpetuity. Consequently, none of those letters, after that irrevocable alienation, constituted any portion of her intestate estate which, if they could have been appreciable as assets, — 492 — could have passed to the appellee as her administrator. Nor, for the same reasons, could they have survived to him as husband. He has no better right to control the letters of which he was the author than the others. In the letters he wrote to his wife before and during their intermarriage he had a peculiar property, which, to the extent of enjoining publication, he might make available; and to that extent the judgment is approved as allowable. But he has not prayed for a surrender of those letters, and would not, if he had sought it, have been entitled to it. Nor could we admit that, in this age and country, a husband’s rightful authority gives him, during marriage, dominion over his wife’s chaste and friendly correspondence not affecting his rights; nor that, in all the plenitude of his marital power, he could, without her free consent, take from her, or destroy, or in any way control, the possession or gift of such letters. Any such ungracious interference with her confidential correspondence would impair social confidence and disturb domestic peace, and ought not to be encouraged by the judiciary, especially as it could do him no other good than to gratify a jealous and prying curiosity. According to befitting decorum, and in every valuable sense, such letters written to her to keep and read and cherish are hers ; and if she, for reasons satisfactory to her own taste and judgment, choose not to give or show them to her husband, she has a right to keep them to herself as her own inviolable property ; and a confiding wife will never withhold from a true husband her confidential letters without some good and sufficient reason. The existing code of both British and American law recognizes the personal individuality and moral responsibility of wives, and, consequently, guarantees their freedom of thought and of interchange of sentiments. Their — 493 — ideas are their own, their emotions their own, and their affections their own. Here and now a husband must not be a tyrant, and ought not to be a spy over his wife, who is neither his slave nor his mistress, but should always be his free and equal companion. What law or policy gives her letters to him? And what property can he own in that which is of no appreciable value to him, and is, for every purpose of use and safe-keeping, hers ? As the appellee’s transmission of his letters to his wife, without express limitation on her or reservation to himself, implied a gift to her separate use in any way except by publication, he could not, during her life, have compelled her to surrender them to his control or possession ; and his apparent acquiescence in her exclusive possession and use until her death, conclusively fortifies that legal presumption. During all that time his only right was to procure copies for publication by himself, if he had chosen to publish them as author, or to enjoin publication b}- herself. And had she not given them to her daughter, his right as author would not have been greater or better after than before her death. Her gift transferred her general property to her daughter, subject only to his right of publication and the donee’s obligation never to publish. The death of his wife gave him no other right. He still has the same and only the same fight to publish or enjoin publication on the ground of his special property, resulting alone from his right to publish, and in no degree from any apprehension of an exposure not affecting that special property. His right to enjoin publication still remains unimpaired. But, as author, he has no right to the possession of the letters. As to her other letters, the authors alone could enjoin publication; and, as she parted with all her right to them, no other person than her transferree has any legal right — 494 — to their custody. That transfer to keep was not publication ; but, could it be so construed, it would only illustrate his right to an injunction. We are therefore of the opinion that, while the appellee was entitled to an injunction against the publication of the letters written by himself to his wife, he was entitled to none to prevent the publication of any of her other letters; and we are of the opinion, also, that he was not entitled to a judgment for a surrender of any of her letters. Wherefore, the judgment is reversed, and the cause remanded, with instructions to enjoin the publication of the letters of which the appellee was author, and to dismiss the petition as to all else.