Page:Harvard Law Review Volume 4.djvu/221

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THE RIGHT TO PRIVACY.

is another’s, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man “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 1820, 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 preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed—and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.^[1]

↑ “But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character. This doubt has probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interests of feeling, and to describe a substantial right of legal interest.” Curtis on Copyright, pp. 93, 94.
The resemblance of the right to prevent publication of an unpublished manuscript to the well-recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors.
“There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, be seized by his creditors as property.” McLean, J., in Bartlett v. Crittenden, 5 McLean, 32, 37 (1849).
It has also been held that even where the sender’s rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or admin strator as a salable asset. Eyre v. Higbee, 22 How. Pr. (N. Y.) 198 (1861).
“The very meaning of the word ‘property’ in its legal sense is ‘that which is peculiar or proper to any person; that which belongs exclusively to one.’ The first meaning of the word from which it is derived—proprius—is ‘one’s own.’” Drone on Copyright, p. 6.
It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual owner ship may be asserted, it matters not whether it be corporeal or incorporeal.

[1] “But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character. This doubt has probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interests of feeling, and to describe a substantial right of legal interest.” Curtis on Copyright, pp. 93, 94.
The resemblance of the right to prevent publication of an unpublished manuscript to the well-recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors.
“There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, be seized by his creditors as property.” McLean, J., in Bartlett v. Crittenden, 5 McLean, 32, 37 (1849).
It has also been held that even where the sender’s rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or admin strator as a salable asset. Eyre v. Higbee, 22 How. Pr. (N. Y.) 198 (1861).
“The very meaning of the word ‘property’ in its legal sense is ‘that which is peculiar or proper to any person; that which belongs exclusively to one.’ The first meaning of the word from which it is derived—proprius—is ‘one’s own.’” Drone on Copyright, p. 6.
It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual owner ship may be asserted, it matters not whether it be corporeal or incorporeal.

[1]