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entitled to protection;" and that it was "evident the plaintiff could
not have considered the letters as of any value whatever as literary
productions, for a letter cannot be considered of value to the
author which he never would consent to have published."2 But
1 "The defendants' counsel say, that a man acquiring a knowledge of another's prop-
erty without his consent is not by any rule or principle which a court of justice can
apply (however secretly he may have kept or endeavored to keep it) forbidden without
his consent to communicate and publish that knowledge to the world, to inform the
world what the property is, or to describe it publicly, whether orally, or in print or
writing.
" I claim, however, leave to doubt whether, as to property of a private nature, which
the owner, without infringing on the right of any other, may and does retain in a state of
privacy, it is certain that a person who, without the owner's consent, express or implied,
acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to
publish without his consent a description of the property.
" It is probably true that such a publication may be in a manner or relate to property
of a kind rendering a question concerning the lawfulness of the act too slight to deserve
attention. I can conceive cases, however, ir which an act of the sort may be so circuln-
stanced or relate to property such, that the matter may weightily affect the owner's
interest or feelings, or both. For instance, the nature and intention of an unfinished work
of an artist, prematurely made known to the world, may be painful and deeply prejudicial
against him; nor would it be difficult to suggest other examples.
" It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities,
or other such curiosities, for instance, without his consent, would be to make use of his
property without his consent; and it is true, certainly, that a proceeding of that kind may
not only as much embitter one collector's life as it would flatter another, -may be not
only an ideal calamity, - but may do the owner damage in the most vulgar sense. Such
catalogues, even when not descriptive, are often sought after, and sometimes obtain very
substantial prices. These, therefore, and the like instances, are not necessarily examples
merely of pain inflicted in point of sentiment or imagination; they may be that, and
something else beside." Knight Bruce, V. C., in Prince Albert v. Strange, 2 DeGex &
Sm. 652, 689, 690.
2 Hoyt v. Mackenzie, 3 Barb. Ch. 320i 324 (I848); Wetmore v. Scovell, 3 Edw. Ch.
5I5 (842). See Sir Thomas Plumer in 2 Ves. & B. I9 (I813).
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204 HAR VARD LA W RE VIE W.
these decisions have not been followed,l and it may now be con-
sidered settled that the protection afforded by the common law
to the author of any writing is entirely independent of its
pecuniary value, its intrinsic merits, or of any intention to publish
the same, and, of course, also, wholly independent of the material,
if any, upon which, or the mode in which, the thought or sentiment
was expressed.
Although the courts have asserted that they rested their
decisions on the narrow grounds of protection to property,
yet there are recognitions of a more liberal doctrine. Thus
in the case of Prince Albert v. Strange, already referred to, the
opinions both of the Vice-Chancellor and of the Lord Chancellor,
on appeal, show a more or less clearly defined perception of a
principle broader than those which were mainly discussed, and
on which they both placed their chief reliance. Vice-Chancellor
Knight Bruce referred to publishing of a man that he had
"written to particular persons or on particular subjects" as an
instance of possibly injurious disclosures as to private matters, that
the courts would in a proper case prevent; yet it is difficult to
perceive how, in such a case, any right of property, in the narrow
sense, would be drawn in question, or why, if such a publication
would be restrained when it threatened to expose the victim
not merely to sarcasm, but to ruin, it should not equally be
enjoined, if it threatened to embitter his life. To deprive a man
of the potential profits to be realized by publishing a catalogue of
his gems cannot per se be a wrong to him. The possibility of
future profits is not a right of property which the law ordinarily
recognizes; it must, therefore, be an infraction of other rights
which constitutes the wrongful act, and that infraction is equally
wrongful, whether its results are to forestall the profits that the
individual himself might secure by giving the matter a publicity
obnoxious to him, or to gain an advantage at the expense of
his mental pain and suffering. If the fiction of property in a nar-
row sense must be preserved, it is still true that the end accom-
plished by the gossip-monger is attained by the use of that which
1 Woolsey v. Judd, 4 Duer, 379, 404 (I855). "It has been decided, fortunately for
the welfare of society, that the writer of letters, though written without any purpose of
profit, or any idea of literary property, possesses such a right of property in them, that
they cannot be published without his consent, unless the purposes of justice, civil or
criminal, require the publication." Sir Samuel Romilly, arg., in Gee v. Pritchard,
2 Swanst. 402, 418 (i8I8). But see High on Injunctions, 3d ed., ? 1012, contra.
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THE RIGHT TO PRIVACY. 205
is another's, the facts relating to his private life, which he has
seen fit to keep private. Lord Cottenham stated that a inan "is
entitled to be protected in the exclusive use and enjoyment of
that which is exclusively his," and cited with approval the
opinion of Lord Eldon, as reported in a manuscript note of the
case of Wyatt v. Wilson, in I820, respecting an engraving of
George the Third during his illness, to the effect that "if one of
the late king's physicians had kept a diary of what he heard and
saw, the court would not, in the king's lifetime, have permitted him
to print and publish it;" and Lord Cottenham declared, in respect
to the acts of the defendants in the case before him, that " privacy
is the right invaded." But if privacy is once recognized as a
right entitled to legal protection, the interposition of the courts
cannot depend on the particular nature of the injuries resulting.
These considerations lead to the conclusion that the protection
afforded to thoughts, sentiments, and emotions, expressed through
the medium of writing or of the arts, so far as it consists in pre-