them to stand upon their own ground in | JAMES, FIRST EARL OF MALMESBURY. entering the active world. But a free instruction could hardly be expected in a country where the free expression of thought is not permitted either to the pen or the tongue. This applies not merely to politics, but also to theology, and to philosophy generally. A professor,' says Heinzen, who should indulge in a free expression of thought at his lecture-desk, would be equally punished with a rebel who declaimed in the streets.'

Heinzen's work is divided into three Parts, the first and most important of which we have now gone through. The remainder we have seen, but do not at present possess, the separate Parts being handed about privately. Should we obtain them, however, as we fully expect, we shall probably return to the subject; and after exhibiting however, that we were mistaken in supposthe work in detail, offer some general com- ing that there was any delicacy in the case ments on the whole, together with the state-the postponement seems to have been of things it discusses.

or private, of too near an approach to our | kept when he was out of office; but on the own times, we forbore raising a question other it may, we think, be doubted whether which might seem invidious, and which such a right extends to a journal like, for the good sense and delicacy of the noble instance, that kept during his mission to Editor himself appeared to avoid; but, as Brunswick, which is really a history of the the appetite of the public for these revela- mission-containing scarcely one word or tions, and the profit-prompted liberality of fact that had not a direct relation to it, and the possessors of such documents, seem which but for the mission could have had rapidly increasing we feel it our duty to offer no existence. some observations on a subject of, as it seems to us, some novelty and considerable importance.

Now, putting aside for the moment all question of discretion and delicacy, and regarding only the strictness of law, we hold that it is clearly established that a public minister can have, with regard to his official papers, no private and independent right of publication.

Judge Story, in his

Commentaries on

We must begin by stating that these volumes contain matters so various as to be at first sight hardly reducible to any common rule as to the right or propriety of their publication. We have, 1. The ordinary official despatches and com- Equity Jurisprudence,' has collected all munications between the minister and his the cases which constitute the law on this own court, and that to which he was ac- subject, and classed and condensed them credited. 2. The more secret and confi- in his usual masterly style. He states, on dential correspondence, which under the all the authorities, that private letters, form and style of private letters are essen- even as literary compositions, belong to the tially official, and affect in the highest de- writer and not to the receiver, who at most gree the public interests. 3. Memoranda, has a special property in them which does minutes, of conferences, or conversations, not give him a right to publish them' and intelligence, collected in the ministe- ($944); and again, that by sending a rial character, and for the purposes of the letter the writer gives to the person to mission. 4. Extracts of Diaries which whom it is addressed a property in it for Lord Malmesbury seems to have kept with the purposes of reading, and, in some cases, great assiduity all through his life, and of keeping it; but the gift is so restrained of which, during the periods of his public that, beyond the purposes for which the employment, all the most essential portions letter is sent, the property remains in the relate to his ministerial duties, and are as sender' (§ 945). These decisions were it were a kind of log-book of his official made on the principle involved in this and and in some degree of his personal proceed- all such like cases, namely, the copyright ings-the fourth volume is almost wholly in and the pecuniary value of such papers. composed of extracts from the Diary from But the argument goes still further, and 180 to 1808, when Lord Malmesbury was protects letters, not merely as property, residing in London in the centre of an ex- but as the sacred depositories of private tensive political acquaintance, and keeping confidence. 'It would, indeed,' says Dr. very copious notes of the political news and Story, be a sad reproach to English and occurrences of the day. American jurisprudence if Courts of Equity could not interpose in cases where the very nature of the letter imports-as matters of business, or friendship, or advice, or family or private confidence—the implied or necessary intention and duty of privacy and secrecy' (§ 947); and thence the cases lead to a still closer analogy to our point. Courts of Equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment' (§ 952). And he further shows that these rules apply not merely to letters received, but equally so to letters written by a person-in short, they have been applied in all cases where the publication would be a violation of trust

Of these classes there can be little doubt, we think, that the three first may be considered as belonging to the same category, and as subject to whatever custom or rule of law may exist as to the antagonist rights of the Crown, and one of its official agents, over the documents connected with the agency. The question on the Diaries is rather more complicated, from the difficulty of distinguishing how far papers of such a mixed character can be classed as public or private. But the difficulty is more superficial than real: on the one hand, no one can pretend that Lord Malmesbury's representative had not a legal right over his private diaries; those, for instance,

lish.

or confidence, founded in contract or im- have been stopped by an injunction; and plied from circumstances' ($949). And, as the case now stands, we suspect that the if this doctrine be true in private cases, it law of copyright would not protect a pubis infinitely stronger in that of a sworn ser- lication where there was no right to pubvant of the State, who is not merely what the law would call an agent, but is invested with a still more confidential character, and a much higher, and much deeper responsibility. This is common sense, common honesty, common equity, and common law.

But this applies only to the absolute right-which is, we admit, susceptible of various modifications in practice. In the first place the consent of the Government for the time being, as representative of the sovereign or the state, would hardly be deA case occurred a few years ago, in which nied on a fit occasion, and would remove we had occasion to consider this question all difficulty. Of the two earliest publicaincidentally, and our opinion then was in tions by private persons of diplomatic paperfect accordance with these principles. pers that we possess 'The Cabala' and This was in our review of A Narrative of Diggs's Complete Ambassador'—it is oba Residence at the Court of London, by servable that both, and particularly the latRichard Rush, Esq., Envoy from the ter, referred to transactions quite obsolete, United States. Mr. Rush in this work and were published during the license of chose to publish, without any authority the Commonwealth, but that when the from his government, and on his private 'Cabala' was republished after the Restoresponsibility, many of his diplomatic com- ration with some additional matter, it was munications with our ministers, and gave with the express sanction of the Secretary some reasons-very bad ones as we thought of State. The second volume of Sir Wiland showed-for this deviation from the liam Temple's works, published by Swift, ordinary course of diplomacy. For our which contained his diplomatic letters, was present purpose we need only quote our especially dedicated to King Williamgeneral résumé of the question. The first part of our argument had applied to the mere act of publishing what had never been intended for publication, and then we proceeded to say with regard to the publication by Mr. Rush-

'But Mr. Rush is in a still graver error as to the general principle. He seems to think that, if such documents may be published, he has a right to publish them. No such thing. The State has such a right, but not the servant of the State, without the express permission of the head of the Government. In all a minister's negotiations, whether verbal or documentary, he can acquire no personal right

of his own.

-no right to publish or otherwise employ the papers he may have collected, or the information he may have obtained, for any purpose The whole belongs to the State, and he has no more right to make any use of them than a lawyer would have to turn something which he has found amongst his client's title-deeds to his own advantage.'-(Q. R., xlix. p. 325.)

To this general doctrine we have never heard any objection; we believe it to be indisputable, and we will therefore venture to repeat our matured judgment-one not, as we have shown, formed on or for the present occasion,-that the noble Editor had no right whatsoever to publish the diplomatic papers of his grandfather. We have no doubt that such a publication might

which the first volume was not-and had
no doubt his Majesty's countenance and
sanction. But we have now before us a
case of recent and decisive authority-Sir
Robert Adair's publication, May, 1844, of
'An Historical Memoir of his Mission to
Vienna.' This memoir is based on, and is
accompanied by a selection from the des-
patches written and received by him du-
ring that period. Sir Robert Adair, taking
the true legal and statesmanlike view of the
case, obtained from Lord Palmerston, then
the Secretary of State, an official permis-
sion-not withdrawn by Lord Aberdeen—
to publish such parts of his despatches as
might not be prejudicial to the public ser-
vice;' and he also, he tells us, obtained
Prince Metternich's consent;' and he an-
nounces on his title-page that these des-
patches are 'published by permission of the
authorities. All this is right and
proper
proper, and establishes, we think, the true
principles of the case.

6

But though we suppose that in strictness no state-papers can be printed without the consent of the Crown, yet in practice any formality of sanction has been reasonably considered as unnecessary in cases which, by long lapse of time and entire change of circumstances, can no longer affect either private feelings or public interests, and have passed into the fair and undisputed

had not the least intention of infringing these
rules, and will be surprised at finding that
he can, by any ill-natured critic, be sup-
posed to have done so. We assure him we
are not towards him ill-natured critics;-

domain of history. It might be difficult to fix the precise boundary of this domain, in which every year makes a degree of change; but it is creditable to the discretion of the eminent men who have served in public stations for the last century—of the here- we are satisfied that he was as far as we ditary possessors of their official papers- ourselves should be from publishing any and of the literary men who have had access thing which he could have imagined to be to those papers-that till within very late injurious to the public service or reasonyears little or nothing has been published ably displeasing to individuals. But in our to which any serious objection could be judgment he has happened to do both; and made. When Lord Kenyon and Dr. Phill- it is lest the involuntary error of a justly potts published, in 1827, the letters be- respected nobleman should in these alltween the King and Lord Chief Justice publishing days create a dangerous preceKenyon on the subject of the Coronation dent, that we have thus ventured to express Oath, Lord Chancellor Eldon-with all his our opinion that, strictly speaking, the offipolitical and religious predilections for the cial and confidential that is the greater views that publication was intended to serve and more important-divisions of these pa-could not help expressing 'considerable pers were not his to publish, and that the doubts' as to the propriety of that pub-customary and conventional rights which a lication, (Twiss's Life,' vol. i. p. 360)-sufficient lapse of time confers on the posnot from any disapprobation of the senti- sessor of such documents have not yet acments, nor doubting that they did honor to crued to him. both parties, but evidently because it seem- We are sorry to be obliged to pronounce ed to make public a privileged communi- this judgment, which is much against our cation too near our times to be altogether own private interest and predilections. We considered, as in all other respects they have been very much amused by these two certainly are, historical documents. Lord latter volumes, and chiefly, we fear, with Eldon's own biographer, who states this those parts the publication of which we doubt, has gone much farther, for he has have thus presumed to criticise. We wish printed not only private letters of recent we could, consistently with our duty to the date, but a number of the most secret and public, encourage this mode of anticipatconfidential notes from King George III. to ing history: it has great charms. How his Chancellor on the most delicate sub- much more delightful to us must be the jects. In our review of Mr. Twiss's work, sketches of George III. and George IV.— (Q. R. vol. lxxiv. p. 71,) we said that, tak- Queen Charlotte and Queen Carolineing for granted that Mr. Twiss had obtain- Pitt and Fox-Canning and Windhamed permission from the parties or their re- (to say nothing of the minor portraits)— presentatives for the publication of these all fresh, as it were, from the hand of a private communications, there were still painter, their contemporary, and in some some for which it was too early even to ask degree ours-than they will be in another such permission—a sufficient intimation of generation, when they might be exhibited the judgment which we now more broadly without offence, and received with indifferstate that without such permission, those ence! Nor can it be denied that historic documents were, according to all admitted truth may gain something by what we have principles, no more the property of the Chan- hitherto considered as premature publicellor's grandson, in respect to publication, cation. If there be misunderstanding or than Lord Malmesbury's despatches were misrepresentation of facts or of motives, of his grandson. It seems clear that the there may probably be those living who present Earl has not thought of obtaining will feel an interest in correcting the error any such permission or sanction, and for and in doing justice to themselves or their this as well as other reasons we cannot but party; and when the mention is favorable, think that his publication infringes on those there will be many to relish the praise of a ill-defined, but well understood rules of dis- well-remembered parent or friend, with a cretion and delicacy, by the nice observ- keenness of pleasure that cannot be felt by ance of which the publication by private a more distant progeny. It may be also hands of official documents can alone be said that no such publication is ever made justified. without some reserve and delicacy-that even when nothing is added to praise some

We are satisfied that the noble Editor

thing is often subtracted from censure, and that traits likely to be offensive to individuals may be easily, and generally are tenderly softened or omitted: and this, we dare say, may be said of the Malmesbury publication. But then this process is likely to destroy the truth and unity of the work after being strained through such a cullender an author may be no more like himself than a purée to a potato. Unless we have the whole evidence we cannot be Turning, however, from these speculasatisfied of his veracity, nor appreciate his tions, which, though they come too late in distribution of praise or blame. It is like this case, may be applicable to others, we asking us to give implicit credit to a wit-proceed to our examination of the contents ness without allowing us the test of a personal examination.