Book-Lore: A Magazine Devoted to Old Time Literature.
London. No. 1 (December, 1884).
BIBLIOPHILE'S KALENDAR, p29.
Vice-Chancellor Bacon was engaged, Nov. 7th, in suppressing a book. The quarrel between the late Lord Lytton and his wife was for many years a matter of painful notoriety. At her death she left her papers, including her husband's extraordinary love-letters, and a fragmentary autobiography of her own, to Miss Louisa Devey, in order that they might be published. When the present Earl Lytton published a biography of his father, Miss Devey thought that the time had come for what she regarded as the vindication of her deceased friend. It was announced that a work entitled Letters of the late Edward Bulwer, Lord Lytton, to his wife, with extracts from her MS. autobiography and other Documents, published in vindication of her memory, by Louisa Devey, Executrix to the Dowager Lady Lytton, would be published by Messrs. VV. Swan Sonnenschein & Co. The Pall Mall Gazette of October 7th, 1884, gave a lengthy review of this book, with extracts, which showed that Mr. Bulwer's love at first sight for Miss Rosina Wheeler—a girl of wonderful beauty—found remarkable expression in some two hundred and ninety-eight love-letters. The matrimonial sequel of this love-match was unhappy, and there was a separation in 1836. Lady Lytton's affection turned to hatred, and in several of her novels she is thought to have satirised her husband. In the Chancery Division, Nov. 7th, before Vice-Chancellor Bacon, Mr. Marten, Q.C., brought forward a motion on behalf of the plaintiff in the action of the Earl of Lytton v. Devey and others, for an injunction to restrain the defendants, Miss Louisa Devey, executrix to the late Lady Lytton, and Messrs. Swan Sonnenschein & Co., publishers, from publishing certain letters written by the late Lord Lytton to his wife and from the present earl to his mother, and also an injunction to restrain Miss Devey from parting with such letters until the trial of an action which has been commenced for their recovery. The defendants were represented by Mr. Millar, Q.C., Mr. H. G. Watts, and Mr. G. G. Millar. Mr. Marten said that Lord Lytton had recently learned from an article which appeared in a London evening newspaper, that a book, which had been compiled or edited by Miss Devey, and which was said to contain no fewer than two hundred and ninety-eight letters written or alleged to be written by the late Lord Lytton to his wife, was about to be published by Messrs. Swan Sonnenschein & Co. The bulk of these letters related to family matters, some of the most private character, and Lord Lytton, in an affidavit, stated that he considered the publication of them would be most objectionable on family grounds. Certainly he had never authorised their publication. The letters written by himself to the late Lady Lytton were also of a private character, and he objected to their publication. Counsel went on to refer to the reasons given by Miss Devey for publishing the book, and said the plaintiff expressly denied that by writing his book, entitled The Life, Letters, and Literary Remains of Lord Lytton, he had intended to depreciate, or had, in fact, depreciated, his mother's character. In the passages in the book which related to household management and the children there was not a word in the slightest degree discreditable to the late Lady Lytton, or in any degree reflecting on her conduct. In conclusion, Mr. Marten urged that marriage implying a gift by the wife to the husband of all chattels which could be dealt with, letters would clearly pass from the wife to the husband. The late Lord Lytton's letters, therefore, would belong to himself, and would pass to his son as sole executor. Mr. Millar pointed out that over half a century had elapsed since many of the letters were written, and no attempt had ever been made until the present time on behalf of Lord Lytton to take possession of them. At the conclusion of the argument, the Vice-Chancellor granted the injunction applied for.
The book is, therefore, suppressed, but it may be remarked that the scandal has already got into literature. In addition to her novels a little-known book appeared four years ago with the following title, A Blighted Life, by the Right Hon. Lady Lytton. A True Story. With three Illustrations. (London: The London Publishing Office, 3, Falcon Court; 32, Fleet Street, E.C., 1880.) This is rambling and disconnected in style, but full of bitterness and invectives against, her husband and many other well-known personages of the present and past generation.
THE LAW JOURNAL REPORTS FOR THE YEAR 1885: COMPRISING REPORTS OF CASES
IN the house of Lords and in the Privy Council, IN the Court of appeal, the Court for Crown Cases Reserved and in the Court of Bankruptcy; AND IN THE HIGH COURT OF JUSTICE viz. Cbancery; (Queen's Bench; and Probate Divorce and Admiralty, Divisions.MICHAELMAS 1884 to MICHAELMAS 1885.
THE REPORTS ARE EDITED BY MONTAGU CHAMBERS, Esq., one of Her Majesty's Counsel, FREDERICK HOARE COLT, Esq. AND JOHN GEORGE WITT, Esq., Barristers-at-Law. CHANCERY DIVISION, VOL. LIV.
LONDON: PRINTED BY SPOTTISWOODE AND CO., NEW-STREET SQUARE. PUBLISHED BY F. E STREETEN, 6 QUALITY COURT, CHANCERY LANE.MDCCLXXXV.
CHANCERY DIVISION. [N. S. 8, VOL. 54, p293-296: Bacon, V.C. 18S4. EARL OF LYTTON V. DEVEY. Nov. 7.
Letters—Property in Letters—Sender and Recipient—Restraint of Publication—Injunction.
The property in and the right to retain letters remains in the person to whom they are sent; but the sender has still that kind of interest, if not property, in the letters which enables him to restrain their publication, unless it can be clearly shewn that such publication is necessary for the vindication of character.
Motion. These actions were instituted by the Earl of Lytton, as executor of his father the late Lord Lytton, in reference to letters written by the late Lord Lytton to the late Lady Lytton which the defendants were about to publish. The letters were in the possession of Miss Devey as executrix of the late Lady Lytton, and were being printed and published by the defendants Swan, Sonnenschein & Co.
The late Lord Lytton, then Mr. Bulwer, married Miss Rosina Anne Doyle Wheeler on the 29th of August, 1827. Unhappy differences, however, arose between them, and in 1836 they separated, and a separation deed was executed on the 9th of April of that year. Lord Lytton died in January, 1873, and Lady Lytton died on the 12th of March, 1882. In 1883, the plaintiff published [p294 col. 1:] a life of his father, under the title of The Life, Letters, and Literary Remains of Edward Bulwer Lord Lytton.
The present actions were instituted in consequence of an article which appeared in the Pall Mall Gazette of the 7th of October, 1884, containing copious extracts from Lord Lytton's letters to his wife both before and after their marriage. These letters had been advertised as about to be published by Messrs. Swan, Sonnenschein & Co.
There were two motions in the action: the first against Miss Devey, to restrain her from parting with to any person other than the plaintiff any letters written by the late Lord Lytton to Lady Lytton until the trial of the action or further order; and the second, to restrain Swan, Sonnenschein & Co. from printing or publishing any of the said letters.
Miss Devey made an affidavit in opposition to the motions, that the publication was necessary in order to vindicate the character of Lady Lytton, which she alleged to have been aspersed by the plaintiff's published life of his father. She alleged that the plaintiff had produced an entirely false impression of the respective characters of Lord and Lady Lytton, by ascribing harsh and unfeminine conduct to Lady Lytton, and by suppressing everything of an unfavourable character with respect to his father.
The plaintiff, in an affidavit, denied these charges, or that he had in any way written in a disparaging or disrespectful manner of his mother. The terms of the separation deed are sufficiently referred to in the judgment.
Marten, Q.C., Methold, and Herbert Stephen, for the plaintiff.—-The executors of the late Lord Lytton are entitled to an injunction restraining the publication of these letters. In Thompson v. Stanhope (1) Lord Chesterfield's executors obtained an injunction restraining the publication by the executor of the person to whom they were written of the famous letters of Lord Chesterfield to his son. The general principle is laid down in Pope v. Curl (2), which related to letters from Swift, Pope,
(1) Amb. 737; (2) 2 Atk. 3412.
[294 col. 2:] and others, that the recipient of letters has no right to publish them to the world, and that, " at most, the receiver has only a joint property with the writer." As to the alleged vindication of character, Gee v. Pritchard (3) is exactly in point. In that case the defendant had returned letters written to him by the plaintiff, but published copies of them made before the return. Lord Eldon restrained publication, notwithstanding that the defendant represented that such publication was necessary to the vindication of his character. This case is wholly different from that of Lord and Lady Perceval v. Phipps (4), in which an injunction was dissolved on the ground that the plaintiff was representing the defendant as a person who gave false intelligence, and that the defendant was entitled to shew how and from whom he derived that intelligence.
The law with respect to the remedies, civil and criminal, for a libel against a deceased person is fully explained in The Queen v. Labouchere (5). The Court there decided that a criminal information could only be granted, according to the modern decisions, at the suit of persons who are in some public position. We are thus left to the remedy by injunction. With respect to the second motion, it is in the nature of an action of detinue. These documents were the property of Lord Lytton. By the marriage, which was many years before the recent Married Women's Property Acts, they became his property, and they have now devolved on his executors. There is no evidence in support of a gift of the letters by the late Lord Lytton to his wife. There is no reference to the letters in the deed of separation, and in the absence of such reference or other evidence the property in the letters remained in the late Lord Lytton, and is now in the plaintiff—In re Whittaker; Whittaker v. Wtiittaker (6). We do not, however, now ask your Lordship to decide the question of property in the letters, but only an injunction to pre-
(3) 2 Swanst. 402; (4) 2 Ves. & B. 19; (5) 53 Law J. Rep. Q.B. 362; Law Rep. 12 Q.B. D. 320; (6) 51 Law J. Rep. Chanc. 737; Law Rep. 21 Ch. D. 657.
[p295, col. 1]: -vent them or copies of them from being parted with. There is no imputation cast by the plaintiff in his book on the character of the late Lady Lytton; and, if there were, there is no authority to shew that the character of a testator vests in his executor for the purposes of vindication.
Millar, Q.G., H. G. Watts, and G. Millar, for the defendants.—This is not a case of libel at all, and there is no jurisdiction in the Court to restrain publication. These letters have remained in the possession of Lady Lytton or her executrix for a period of nearly fifty years. To all intents and purposes Lady Lytton was a feme sole from 1836 to her death in 1882, which took place nine years after the death of her husband. After such a lapse of time the Court will not restrain the publication of these letters. The law is summed up in Kerr on Injunctions, pp. 187-8, where it is stated that the right of the author of letters to restrain their publication is not absolute, and the learned author cites Perceval v. Phipps (4) and Gee v. Pritchard (3) for the limitations on that right. In the former case Vice-Chancellor Sir Thomas Plumer distinguishes between letters having a literary character on the one hand, and mercantile and other letters on the other hand; and with respect to the latter class of letters he says, "If in every such instance the publication may upon this doctrine be restrained as a violation of literary property the effect must frequently be to deprive an individual of his defence, ... in the proof of which, letters may form the chief ingredient "; and on page 28 the Vice-Chancellor says : " Every private letter upon any subject to any person is not to be described :is a literary work to be protected upon the principle of copyright." In Gee v. Pritchard (3) the defendant had renounced the right of publication by having returned the letters to the writer. The law is not doubtful. There is a joint property in the writer and receiver, and the latter has only a right to publish the letters when such publication is necessary for the vindication of character. That necessity exists in the present case, and has arisen in consequence of the aspersions cast on Lady Lytton's character in the Life of Lord Lytton recently published by the plaintiff, who, with great literary skill, has suggested that the differences which arose between Lord Lytton and his wife arose entirely from the wife's fault, and has imputed a lack of wifely and maternal feeling on the part of Lady Lytton. The plaintiff has studiously kept in the background all that would tell in Lady Lytton's favour, and all that would make Lord Lytton appear in an unfavourable light.
The learned counsel then cited numerous passages from the plaintiff's Life of his father in support of this part of the argument.
Then, secondly, the Statute of Limitations would alone dispose of the whole case, as the letters have been in the possession of Lady Lytton and Miss Devey for a period of nearly half a century.
They also cited Hopkinson v. Lord Burghley (7), The Earl of Granard v. Duncan (8), and the American case of Folson v. Marsh (9).
Marten was not called upon to reply.
Bacon, V.C.—This case has been argued at most immoderate length; but, in my opinion, the law is plain, and has existed long before the case of (7) 36 Law J. Kep. Chanc. 504; Law Rep. 2 Chanc. 417; (8) 1 Hall Sc B. 207;
(9) 2 Story, 100.
[p296, col. 1:] -fidential communication, that other has a right to publish it to the world. It is a matter between themselves. It would be neither just, nor right, nor lawful, that any publication of these communications should be made.
But there is one qualification, one exception, it may be said, to that general principle which I have just stated. That is, if the letter contains materials which it is necessary for the sendee— if I may use such a word — to use for his own justification, or for vindicating his character from any charges which are brought against him.
It is upon that ground mainly that the case has been argued before me, because, referring to Miss Devey's affidavit, and to the argument I have heard from her counsel, an attempt has been made to shew that by the publication of the plaintiff he has imputed something—no matter what—to the late Lady Lytton which her personal representative has a right to refute, and, if necessary, to prove her justification by referring to these letters. That is a totally different thing from publishing letters. She may have such a right, and in one of the cases referred to the Court so held, and said that the Court will look into it if necessary to see whether the publication could be justified on the ground of vindication or not. I have heard all that has been said, and I have heard the answer which the plaintiff makes to it, and many references have been made—as many as the defendants could pick out — to the publication of Lord Lytton in order to justify the statement that the defendant as legal personal representative of the late Lady Lytton has a right to publish these letters in vindication of the late Lady Lytton's character. There is not a particle, there is not a line, there is not a suggestion in any part of the extracts which have been referred to — which is, of course, all I know of the publication — which justifies that. The late Lady Lytton is never spoken of otherwise than with perfect respect. No imputation is made upon her. No suggestion nor hint of suggestion that she is charged with extravagance which the extracts do not justify or prove. That the couple had lived extravagantly and that they were in pecuniary distress may be true. Lord Lytton in his lifetime brought no such charge against his wife. His biographer makes no such charge against her. It is said that she was deficient in maternal tenderness to her children. That is one view of the interpretation. There is no pretence for saying that any such charge is made in the book. The extracts which have been read from it contain no such charge; there is no place for it in this case; and the deed of separation, which has been referred to so often, provides that the two children should be left in the care of Lady Lytton—this mother who is supposed to have been wanting in maternal tenderness for her children. The transactions between herself and her husband as stated shew that she did exercise a maternal tenderness and solicitude for her children, because he leave*s them in hercare, and provides a stipend towards their maintenance.
So that the pretence on which the publication is attempted to be justified by the defendant is wholly removed by the extracts which have been referred to in the argument; and she herself, notwithstanding the vague general accusation which she makes, having read that affidavit in which reference is made to the extracts in the second volume, does not add one other word, nor say that the publication of Lord Lytton contains anything like the charge which is alleged.
Then as to the property in these letters. As I have said, the property is in the sendee. The property is rightly in Lady Lytton's representatives. The notion is that the deed of separation, because it provides that the household furniture and certain things enumerated shall be the separate estate of the late Lady Lytton, leaves all the rest of the property in her possession still subject to the marital control. Nobody can read the deed of separation and put any such construction upon it. All the furniture and things of that sort which are there mentioned are her separate estate, but letters written to her before her marriage were her separate property notwithstanding the marriage; all that she had acquired during the marriage, with the consent and authority of her husband, remains hers. Her wearing apparel and
[p296, col 2:] furniture are mentioned, and if she had a pony in the stable or any other article which she had the use and enjoyment of, in my opinion that property remained hers, notwithstanding the marriage, wholly exempt from the marital control.
Another reason may be suggested why if the right to the property was not complete she would still retain it. The late Lord Lytton contracts that he will not take any proceedings in the Ecclesiastical Court, as it was then called, to compel her to live with him; but there was nothing to restrain her from preferring any complaint, if any complaint she had to make—-which I do not believe she had—-and to adduce proof of it by these letters, which were in her possession, and are now in the possession of her legal personal representative. The right, therefore, to restrain the publication of these letters, because the exclusive right to publish is not in the representative, nor ever was in the representative, is established on this motion. The right to the possession of the letters is challenged in the second action. When the cause comes to be heard that will be decided. It is not needful for me to say how it will be decided. It is right to say that in the meantime the defendant should not be at liberty to part with the possession of these letters, because then some other defendant might be introduced who might take it into his head to publish them.
Upon the two motions I am of opinion that the plaintiff is entitled to the injunction which he asks restraining the publication by the defendant of any of the letters mentioned in the pleadings. And with respect to the second, he has a title to an injunction to secure the letters remaining in statu quo, not disturbing the possession of them, but restraining the publication of them.
[Jan. 12, 1885.—Bacon, V.C., with the consent of all parties, made the injunctions perpetual, and ordered the defendant to pay the costs.] Last revised: 12 March 2016