[1] Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be
the first reported case where damages were recovered for a civil
assault.
[2] These nuisances are technically injuries to property; but the
recognition of the right to have property free from interference by such
nuisances involves also a recognition of the value of human sensations.
[3] Year Book, Lib. Ass., folio 177, p. 19 (1356), (2 Finl. Reeves Eng.
Law, 395) seems to be the earliest reported case of an action for
slander.
[4] Winsmore _v._ Greenbank, Willes, 577 (1745).
[5] Loss of service is the gist of the action; but it has been said that
"we are not aware of any reported case brought by a parent where the
value of such services was held to be the measure of damages." Cassoday,
J., in Lavery _v._ Crooke, 52 Wls. 612, 623 (1881). First the fiction of
constructive service was invented; Martin _v._ Payne, 9 John. 387
(1812). Then the feelings of the parent, the dishonor to himself and his
family, were accepted as the most important element of damage. Bedford
_v._ McKowl, 3 Esp. 119 (1800); Andrews _v._ Askey, 8 C. & P. 7 (1837);
Phillips _v._ Hoyle, 4 Gray, 568 (1855); Phelin _v._ Kenderdine, 20 Pa.
St. 354 (1853). The allowance of these damages would seem to be a
recognition that the invasion upon the honor of the family is an injury
to the parent's person, for ordinarily mere injury to parental feelings
is not an element of damage, _e.g._, the suffering of the parent in case
of physical injury to the child. Flemington _v._ Smithers, 2 C. & P. 292
(1827); Black _v._ Carrolton R. R. Co., 10 La. Ann. 33 (1855); Covington
Street Ry. Co. _v._ Packer, 9 Bush, 455 (1872).
[6] "The notion of Mr. Justice Yates that nothing is property which
cannot be earmarked and recovered in detinue or trover, may be true in
an early stage of society, when property is in its simple form, and the
remedies for violation of it also simple, but is not true in a more
civilized state, when the relations of life and the interests arising
therefrom are complicated." Erie, J., in Jefferys _v._ Boosey, 4 H. L.
C. 815, 869 (1854).
[7] Copyright appears to have been first recognized as a species of
private property in England in 1558. Drone on Copyright, 54, 61.
[8] Gibblett _v._ Read, 9 Mod. 459 (1743), is probably the first
recognition of goodwill as property.
[9] Hogg _v._ Kirby, 8 Ves. 215 (1803). As late as 1742 Lord Hardwicke
refused to treat a trade-mark as property for infringement upon which an
injunction could be granted. Blanchard _v._ Hill, 2 Atk. 484.
[10] Cooley on Torts, 2d ed., p. 29.
[11] 8 Amer. Law Reg. N. S. 1 (1869); 12 Wash. Law Rep. 353 (1884); 24
Sol. J. & Rep. 4 (1879).
[12] Scribner's Magazine, July, 1890. "The Rights of the Citizen: To his
Reputation," by E. L. Godkin, Esq., pp. 65, 67.
[13] Marion Manola _v._ Stevens & Myers, N. Y. Supreme Court, "New York
Times" of June 15, 18, 21, 1890. There the complainant alleged that
while she was playing in the Broadway Theatre, in a role which required
her appearance in tights, she was, by means of a flash light,
photographed surreptitiously and without her consent, from one of the
boxes by defendant Stevens, the manager of the "Castle in the Air"
company, and defendant Myers, a photographer, and prayed that the
defendants might be restrained from making use of the photograph taken.
A preliminary injunction issued _ex parte_, and a time was set for
argument of the motion that the injunction should be made permanent, but
no one then appeared in opposition.
[14] Though the legal value of "feelings" is now generally recognized,
distinctions have been drawn between the several classes of cases in
which compensation may or may not be recovered. Thus, the fright
occasioned by an assault constitutes a cause of action, but fright
occasioned by negligence does not. So fright coupled with bodily injury
affords a foundation for enhanced damages; but, ordinarily, fright
unattended by bodily injury cannot be relied upon as an element of
damages, even where a valid cause of action exists, as in trespass
_quare clausum fregit_. Wyman _v._ Leavitt, 71 Me. 227; Canning _v._
Williamstown, 1 Cush. 451. The allowance of damages for injury to the
parents' feelings, in case of seduction, abduction of a child (Stowe
_v._ Heywood, 7 All. 118), or removal of the corpse of child from a
burial-ground (Meagher _v._ Driscoll, 99 Mass. 281), are said to be
exceptions to a general rule. On the other hand, injury to feelings is a
recognized element of damages in actions of slander and libel, and of
malicious prosecution. These distinctions between the cases, where
injury to feelings does and where it does not constitute a cause of
action or legal element of damages, are not logical, but doubtless serve
well as practical rules. It will, it is believed, be found, upon
examination of the authorities, that wherever substantial mental
suffering would be the natural and probable result of the act, there
compensation for injury to feelings has been allowed, and that where no
mental suffering would ordinarily result, or if resulting, would
naturally be but trifling, and, being unaccompanied by visible signs of
injury, would afford a wide scope for imaginative ills, there damages
have been disallowed. The decisions on this subject illustrate well the
subjection in our law of logic to common-sense.
[15] "Injuria, in the narrower sense, is every intentional and illegal
violation of honour, _i.e._, the whole personality of another." "Now an
outrage is committed not only when a man shall be struck with the fist,
say, or with a club, or even flogged, but also if abusive language has
been used to one." Salkowski, Roman Law, p. 668 and p. 669, n. 2.
[16] "It is certain every man has a right to keep his own sentiments, if
he pleases. He has certainly a right to judge whether he will make them
public, or commit them only to the sight of his friends." Yates, J., in
Millar _v._ Taylor, 4 Burr. 2303, 2379 (1769).
[17] Nicols _v._ Pitman, 26 Ch. D. 374 (1884).
[18] Lee _v._ Simpson, 3 C. B. 871, 881; Daly _v._ Palmer, 6 Blatchf.
256.
[19] Turner _v._ Robinson, 10 Ir. Ch. 121; s. c. ib. 510.
[20] Drone on Copyright, 102.
[21] "Assuming the law to be so, what is its foundation in this respect?
It is not, I conceive, referable to any consideration peculiarly
literary. Those with whom our common law originated had not probably
among their many merits that of being patrons of letters; but they knew
the duty and necessity of protecting property, and with that general
object laid down rules providently expansive,--rules capable of adapting
themselves to the various forms and modes of property which peace and
cultivation might discover and introduce.
"The produce of mental labor, thoughts and sentiments, recorded and
preserved by writing, became, as knowledge went onward and spread, and
the culture of man's understanding advanced, a kind of property
impossible to disregard, and the interference of modern legislation upon
the subject, by the stat. 8 Anne, professing by its title to be 'For the
encouragement of learning,' and using the words 'taken the liberty,' in
the preamble, whether it operated in augmentation or diminution of the
private rights of authors, having left them to some extent untouched, it
was found that the common law, in providing for the protection of
property, provided for their security, at least before general
publication by the writer's consent." Knight Bruce, V. C., in Prince
Albert _v._ Strange, 2 DeGex & Sm. 652, 695 (1849).
[22] "The question, however, does not turn upon the form or amount of
mischief or advantage, loss or gain. The author of manuscripts, whether
he is famous or obscure, low or high, has a right to say of them, if
innocent, that whether interesting or dull, light or heavy, saleable or
unsaleable, they shall not, without his consent, be published." Knight
Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 694.
[23] Duke of Queensberry _v._ Shebbeare, 2 Eden, 329 (1758); Bartlett
_v._ Crittenden, 5 McLean, 32, 41 (1849).
[24] Drone on Copyright, pp. 102, 104; Parton _v._ Prang, 3 Clifford,
537, 548 (1872); Jefferys _v._ Boosey, 4 H. L. C. 815, 867, 962 (1854).
[25] "The question will be whether the bill has stated facts of which
the court can take notice, as a case of civil property, which it is
bound to protect. The injunction cannot be maintained on any principle
of this sort, that if a letter has been written in the way of
friendship, either the continuance or the discontinuance of the
friendship affords a reason for the interference of the court." Lord
Eldon in Gee _v._ Pritchard, 2 Swanst. 402, 413 (1818).
"Upon the principle, therefore, of protecting property, it is that the
common law, in cases not aided or prejudiced by statute, shelters the
privacy and seclusion of thought and sentiments committed to writing,
and desired by the author to remain not generally known." Knight Bruce,
V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 695.
"It being conceded that reasons of expediency and public policy can
never be made the sole basis of civil jurisdiction, the question,
whether upon any ground the plaintiff can be entitled to the relief
which he claims, remains to be answered; and it appears to us that there
is only one ground upon which his title to claim, and our jurisdiction
to grant, the relief, can be placed. We must be satisfied, that the
publication of private letters, without the consent of the writer, is an
invasion of an exclusive right of property which remains in the writer,
even when the letters have been sent to, and are still in the possession
of his correspondent." Duer, J., in Woolsey _v._ Judd, 4 Duer, 379, 384
(1855).
[26] "A work lawfully published, in the popular sense of the term,
stands in this respect, I conceive, differently from a work which has
never been in that situation. The former may be liable to be translated,
abridged, analyzed, exhibited in morsels, complimented, and otherwise
treated, in a manner that the latter is not.
"Suppose, however,--instead of a translation, an abridgment, or a
review,--the case of a catalogue,--suppose a man to have composed a
variety of literary works ('innocent,' to use Lord Eldon's expression),
which he has never printed or published, or lost the right to prohibit
from being published,--suppose a knowledge of them unduly obtained by
some unscrupulous person, who prints with a view to circulation a
descriptive catalogue, or even a mere list of the manuscripts, without
authority or consent, does the law allow this? I hope and believe not.
The same principles that prevent more candid piracy must, I conceive,
govern such a case also.
"By publishing of a man that he has written to particular persons, or on
particular subjects, he may be exposed, not merely to sarcasm, he may be
ruined. There may be in his possession returned letters that he had
written to former correspondents, with whom to have had relations,
however harmlessly, may not in after life be a recommendation; or his
writings may be otherwise of a kind squaring in no sort with his outward
habits and worldly position. There are callings even now in which to be
convicted of literature, is dangerous, though the danger is sometimes
escaped.
"Again, the manuscripts may be those of a man on account of whose name
alone a mere list would be matter of general curiosity. How many persons
could be mentioned, a catalogue of whose unpublished writings would,
during their lives or afterwards, command a ready sale?" Knight Bruce,
V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 693.
[27] "A copy or impression of the etchings would only be a means of
communicating knowledge and information of the original, and does not a
list and description of the same? The means are different, but the
object and effect are similar; for in both, the object and effect is to
make known to the public more or less of the unpublished work and
composition of the author, which he is entitled to keep wholly for his
private use and pleasure, and to withhold altogether, or so far as he
may please, from the knowledge of others. Cases upon abridgments,
translations, extracts, and criticisms of published works have no
reference whatever to the present question; they all depend upon the
extent of right under the acts respecting copyright, and have no analogy
to the exclusive rights in the author of unpublished compositions which
depend entirely upon the common-law right of property." Lord Cottenham
in Prince Albert _v._ Strange, 1 McN. & G. 23, 43 (1849). "Mr. Justice
Yates, in Millar _v._ Taylor, said, that an author's case was exactly
similar to that of an inventor of a new mechanical machine; that both
original inventions stood upon the same footing in point of property,
whether the case were mechanical or literary, whether an epic poem or an
orrery; that the immorality of pirating another man's invention was as
great as that of purloining his ideas. Property in mechanical works or
works of art, executed by a man for his own amusement, instruction, or
use, is allowed to subsist, certainly, and may, before publication by
him, be invaded, not merely by copying, but by description or by
catalogue, as it appears to me. A catalogue of such works may in itself
be valuable. It may also as effectually show the bent and turn of the
mind, the feelings and taste of the artist, especially if not
professional, as a list of his papers. The portfolio or the studio may
declare as much as the writing-table. A man may employ himself in
private in a manner very harmless, but which, disclosed to society, may
destroy the comfort of his life, or even his success in it. Every one,
however, has a right, I apprehend, to say that the produce of his
private hours is not more liable to publication without his consent,
because the publication must be creditable or advantageous to him, than
it would be in opposite circumstances."
"I think, therefore, not only that the defendant here is unlawfully
invading the plaintiff's rights, but also that the invasion is of such a
kind and affects such property as to entitle the plaintiff to the
preventive remedy of an injunction; and if not the more, yet, certainly,
not the less, because it is an intrusion,--an unbecoming and unseemly
intrusion,--an intrusion not alone in breach of conventional rules, but
offensive to that inbred sense of propriety natural to every man,--if
intrusion, indeed, fitly describes a sordid spying into the privacy of
domestic life,--into the home (a word hitherto sacred among us), the
home of a family whose life and conduct form an acknowledged title,
though not their only unquestionable title, to the most marked respect
in this country." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2
DeGex & Sm. 652, 696, 697.
[28] Kiernan _v._ Manhattan Quotation Co., 50 How. Pr. 194 (1876).
[29] "The defendants' counsel say, that a man acquiring a knowledge of
another's property 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, in which an act of the sort may be so circumstanced 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.
[30] Hoyt _v._ Mackenzie, 3 Barb. Ch. 320, 324 (1848); Wetmore _v._
Scovell, 3 Edw. Ch. 515 (1842). See Sir Thomas Plumer in 2 Ves. & B. 19
(1813).
[31] Woolsey _v._ Judd, 4 Duer, 379, 404 (1855). "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 (1818). But see High on
Injunctions, 3d ed, Sec. 1012, _contra_.
[32] "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 administrator 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 ownership may be asserted, it matters not
whether it be corporeal or incorporeal.
[33] "Such then being, as I believe, the nature and the foundation of
the common law as to manuscripts independently of Parliamentary
additions and subtractions, its operation cannot of necessity be
confined to literary subjects. That would be to limit the rule by the
example. Wherever the produce of labor is liable to invasion in an
analogous manner, there must, I suppose, be a title to analogous
protection or redress." Knight Bruce, V. C., in Prince Albert _v._
Strange, 2 DeGex & Sm. 652, 696.
[34] "The question, therefore, is whether a photographer who has been
employed by a customer to take his or her portrait is justified in
striking off copies of such photograph for his own use, and selling and
disposing of them, or publicly exhibiting them by way of advertisement
or otherwise, without the authority of such customer, either express or
implied. I say 'express or implied,' because a photographer is
frequently allowed, on his own request, to take a photograph of a person
under circumstances in which a subsequent sale by him must have been in
the contemplation of both parties, though not actually mentioned. To the
question thus put, my answer is in the negative, that the photographer
is not justified in so doing. Where a person obtains information in the
course of a confidential employment, the law does not permit him to make
any improper use of the information so obtained; and an injunction is
granted, if necessary, to restrain such use; as, for instance, to
restrain a clerk from disclosing his master's accounts, or an attorney
from making known his client's affairs, learned in the course of such
employment. Again, the law is clear that a breach of contract, whether
express or implied, can be restrained by injunction. In my opinion the
case of the photographer comes within the principles upon which both
these classes of cases depend. The object for which he is employed and
paid is to supply his customer with the required number of printed
photographs of a given subject. For this purpose the negative is taken
by the photographer on glass; and from this negative copies can be
printed in much larger numbers than are generally required by the
customer. The customer who sits for the negative thus puts the power of
reproducing the object in the hands of the photographer; and in my
opinion the photographer who uses the negative to produce other copies
for his own use, without authority, is abusing the power confidentially
placed in his hands merely for the purpose of supplying the customer;
and further, I hold that the bargain between the customer and the
photographer includes, by implication, an agreement that the prints
taken from the negative are to be appropriated to the use of the
customer only." Referring to the opinions delivered in Tuck _v._
Priester, 19 Q. B. D. 639, the learned justice continued: "Then Lord
Justice Lindley says: 'I will deal first with the injunction, which
stands, or may stand, on a totally different footing from either the
penalties or the damages. It appears to me that the relation between the
plaintiffs and the defendant was such that, whether the plaintiffs had
any copyright or not, the defendant has done that which renders him
liable to an injunction. He was employed by the plaintiffs to make a
certain number of copies of the picture, and that employment carried
with it the necessary implication that the defendant was not to make
more copies for himself, or to sell the additional copies in this
country in competition with his employer. Such conduct on his part is a
gross breach of contract and a gross breach of faith, and, in my
judgment, clearly entitles the plaintiffs to an injunction, whether they
have a copyright in the picture or not.' That case is the more
noticeable, as the contract was in writing; and yet it was held to be an
implied condition that the defendant should not make any copies for
himself. The phrase 'a gross breach of faith' used by Lord Justice
Lindley in that case applies with equal force to the present, when a
lady's feelings are shocked by finding that the photographer she has
employed to take her likeness for her own use is publicly exhibiting and
selling copies thereof." North, J., in Pollard _v._ Photographic Co., 40
Ch. D. 345, 349-352 (1888).
"It may be said also that the cases to which I have referred are all
cases in which there was some right of property infringed, based upon
the recognition by the law of protection being due for the products of a
man's own skill or mental labor; whereas in the present case the person
photographed has done nothing to merit such protection, which is meant
to prevent legal wrongs, and not mere sentimental grievances. But a
person whose photograph is taken by a photographer is not thus deserted
by the law; for the Act of 25 and 26 Vict., c. 68, s. 1, provides that
when the negative of any photograph is made or executed for or on behalf
of another person for a good or valuable consideration, the person
making or executing the same shall not retain the copyright thereof,
unless it is expressly reserved to him by agreement in writing signed by
the person for or on whose behalf the same is so made or executed; but
the copyright shall belong to the person for or on whose behalf the same
shall have been made or executed.
"The result is that in the present case the copyright in the photograph
is in one of the plaintiffs. It is true, no doubt, that sect. 4 of the
same act provides that no proprietor of copyright shall be entitled to
the benefit of the act until registration, and no action shall be
sustained in respect of anything done before registration; and it was, I
presume, because the photograph of the female plaintiff has not been
registered that this act was not referred to by counsel in the course of
the argument. But, although the protection against the world in general
conferred by the act cannot be enforced until after registration, this
does not deprive the plaintiffs of their common-law right of action
against the defendant for his breach of contract and breach of faith.
This is quite clear from the cases of Morison _v._ Moat [9 Hare, 241]
and Tuck _v._ Priester [19 Q. B. D. 629] already referred to, in which
latter case the same act of Parliament was in question." Per North, J.,
ibid. p. 352.
This language suggests that the property right in photographs or
portraits may be one created by statute, which would not exist in the
absence of registration; but it is submitted that it must eventually be
held here, as it has been in the similar cases, that the statute
provision becomes applicable only when there is a publication, and that
before the act of registering there is property in the thing upon which
the statute is to operate.
[35] Duke of Queensberry _v._ Shebbeare, 2 Eden, 329; Murray _v._ Heath,
1 B. & Ad. 804; Tuck _v._ Priester, 19 Q. B. D. 629.
[36] See Mr. Justice Story in Folsom _v._ Marsh, 2 Story, 100, 111
(1841):--
"If he [the recipient of a letter] attempt to publish such
letter or letters on other occasions, not justifiable, a court of equity
will prevent the publication by an injunction, as a breach of private
confidence or contract, or of the rights of the author; and _a
fortiori_, if he attempt to publish them for profit; for then it is not
a mere breach of confidence or contract, but it is a violation of the
exclusive copyright of the writer.... The general property, and the
general rights incident to property, belong to the writer, whether the
letters are literary compositions, or familiar letters, or details of
facts, or letters of business. The general property in the manuscripts
remains in the writer and his representatives, as well as the general
copyright. _A fortiori_, third persons, standing in no privity with
either party, are not entitled to publish them, to subserve their own
private purposes of interest, or curiosity, or passion."
[37] "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 of
himself." Per Hon. Joel Parker, quoted in Grigsby _v._ Breckenridge, 2
Bush. 480, 489 (1867).
[38] In Morison _v._ Moat, 9 Hare, 241, 255 (1851), a suit for an
injunction to restrain the use of a secret medical compound, Sir George
James Turner, V. C., said: "That the court has exercised jurisdiction in
cases of this nature does not, I think, admit of any question. Different
grounds have indeed been assigned for the exercise of that jurisdiction.
In some cases it has been referred to property, in others to contract,
and in others, again, it has been treated as founded upon trust or
confidence,--meaning, as I conceive, that the court fastens the
obligation on the conscience of the party, and enforces it against him
in the same manner as it enforces against a party to whom a benefit is
given, the obligation of performing a promise on the faith of which the
benefit has been conferred; but upon whatever grounds the jurisdiction
is founded, the authorities leave no doubt as to the exercise of it."
[39] A similar growth of the law showing the development of contractual
rights into rights of property is found in the law of goodwill. There
are indications, as early as the Year Books, of traders endeavoring to
secure to themselves by contract the advantages now designated by the
term "goodwill," but it was not until 1743 that goodwill received legal
recognition as property apart from the personal covenants of the
traders. See Allan on Goodwill, pp. 2, 3.
[40] The application of an existing principle to a new state of facts is
not judicial legislation. To call it such is to assert that the existing
body of law consists practically of the statutes and decided cases, and
to deny that the principles (of which these cases are ordinarily said to
be evidence) exist at all. It is not the application of an existing
principle to new cases, but the introduction of a new principle, which
is properly termed judicial legislation.
But even the fact that a certain decision would involve judicial
legislation should not be taken as conclusive against the propriety of
making it. This power has been constantly exercised by our judges, when
applying to a new subject principles of private justice, moral fitness,
and public convenience. Indeed, the elasticity of our law, its
adaptability to new conditions, the capacity for growth, which has
enabled it to meet the wants of an ever changing society and to apply
immediate relief for every recognized wrong, have been its greatest
boast.
"I cannot understand how any person who has considered the subject can
suppose that society could possibly have gone on if judges had not
legislated, or that there is any danger whatever in allowing them that
power which they have in fact exercised, to make up for the negligence
or the incapacity of the avowed legislator. That part of the law of
every country which was made by judges has been far better made than
that part which consists of statutes enacted by the legislature."
I Austin's Jurisprudence, p. 224.
The cases referred to above show that the common law has for a century
and a half protected privacy in certain cases, and to grant the further
protection now suggested would be merely another application of an
existing rule.
[41] Loi Relative a la Presse. 11 Mai 1868.
"11. Toute publication dans un ecrit periodique relative a un fait de la
vie privee constitue une contravention punie d'un amende de cinq cent
francs.
"La poursuite ne pourra etre exercee que sur la plainte de la partie
interessee." Riviere, Codes Francais et Lois Usuelles. App. Code Pen.,
p. 20.
[42] See Campbell _v._ Spottiswoode, 3 B. & S. 769, 776; Henwood _v._
Harrison, L. R. 7 C. P. 606; Gott _v._ Pulsifer, 122 Mass. 235.
[43] "Nos moeurs n'admettent pas la pretention d'enlever aux
investigations de la publicite les actes qui relevent de la vie
publique, et ce dernier mot ne doit pas etre restreint a la vie
officielle ou a celle du fonctionnaire. Tout homme qui appelle sur lui
l'attention ou les regards du publique, soit par une mission qu'il a
recue ou qu'il se donne, soit par le role qu'il s'attribue dans
l'industrie, les arts, le theatre, etc., ne peut plus invoquer contre la
critique ou l'expose de sa conduite d'autre protection que les lois qui
repriment la diffamation et l'injure." Circ. Mins. Just., 4 Juin, 1868.
Riviere Codes Francais et Lois Usuelles, App. Code Pen. 20 n (b).
[44] "Celui-la seul a droit au silence absolu qui n'a pas expressement
ou indirectment provoque ou authorise l'attention, l'approbation ou le
blame." Circ. Mins. Just., 4 Juin, 1868. Riviere Codes Francais et Lois
Usuelles, App. Code Pen. 20 n (b). The principle thus expressed
evidently is designed to exclude the wholesale investigations into the
past of prominent public men with which the American public is too
familiar, and also, unhappily, too well pleased; while not entitled to
the "silence _absolute_" which less prominent men may claim as their
due, they may still demand that all the details of private life in its
most limited sense shall not be laid bare for inspection.
[45] Wason _v._ Walters, L. R. 4 Q. B. 73; Smith _v._ Higgins, 16 Gray,
251; Barrows _v._ Bell, 7 Gray, 331.
[46] This limitation upon the right to prevent the publication of
private letters was recognized early:--
"But, consistently with this right [of the writer of letters], the
persons to whom they are addressed may have, nay, must, by implication,
possess the right to publish any letter or letters addressed to them,
upon such occasions, as require, or justify, the publication or public
use of them; but this right is strictly limited to such occasions. Thus,
a person may justifiably use and publish, in a suit at law or in equity,
such letter or letters as are necessary and proper, to establish his
right to maintain the suit, or defend the same. So, if he be aspersed or
misrepresented by the writer, or accused of improper conduct, in a
public manner, he may publish such parts of such letter or letters, but
no more, as may be necessary to vindicate his character and reputation,
or free him from unjust obloquy and reproach." Story, J., in Folsom _v._
Marsh, 2 Story, 100, 110, 111 (1841).
The existence of any right in the recipient of letters to publish the
same has been strenuously denied by Mr. Drone; but the reasoning upon
which his denial rests does not seem satisfactory. Drone on Copyright,
pp. 136-139.
[47] Townshend on Slander and Libel, 4th ed., Sec. 18; Odgers on Libel and
Slander, 2d ed., p. 3.
[48] "But as long as gossip was oral, it spread, as regards any one
individual, over a very small area, and was confined to the immediate
circle of his acquaintances. It did not reach, or but rarely reached,
those who knew nothing of him. It did not make his name, or his walk, or
his conversation familiar to strangers. And what is more to the purpose,
it spared him the pain and mortification of knowing that he was
gossipped about. A man seldom heard of oral gossip about him which
simply made him ridiculous, or trespassed on his lawful privacy, but
made no positive attack upon his reputation. His peace and comfort were,
therefore, but slightly affected by it." E. L. Godkin, "The Rights of
the Citizen: To his Reputation." Scribner's Magazine, July, 1890, p. 66.
Vice-Chancellor Knight Bruce suggested in Prince Albert _v._ Strange, 2
DeGex & Sm. 652, 694, that a distinction would be made as to the right
to privacy of works of art between an oral and a written description or
catalogue.
[49] See Drone on Copyright, pp. 121, 289, 290.
[50] Compare the French law. "En prohibant l'envahissement de la vie
privee, sans qu'il soit necessaire d'etablir l'intention criminelle, la
loi a entendue interdire toute discussion de la part de la defense sur
verite des faits. Le remede eut ete pire que le mal, si un debat avait
pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, 1868. Riviere
Code Francais et Lois Usuelles, App. Code Penn. 20 n(a).
[51] Comp. Drone on Copyright, p. 107.
[52] Comp. High on Injunctions, 3d ed., Sec. 1015; Townshend on Libel and
Slander, 4th ed., Secs. 417a-417d.
[53] The following draft of a bill has been prepared by William H.
Dunbar, Esq., of the Boston bar, as a suggestion for possible
legislation:--
"SECTION 1. Whoever publishes in any newspaper, journal, magazine, or
other periodical publication any statement concerning the private life
or affairs of another, after being requested in writing by such other
person not to publish such statement or any statement concerning him,
shall be punished by imprisonment in the State prison not exceeding five
years, or by imprisonment in the jail not exceeding two years, or by
fine not exceeding one thousand dollars; provided, that no statement
concerning the conduct of any person in, or the qualifications of any
person for, a public office or position which such person holds, has
held, or is seeking to obtain, or for which such person is at the time
of such publication a candidate, or for which he or she is then
suggested as a candidate, and no statement of or concerning the acts of
any person in his or her business, profession, or calling, and no
statement concerning any person in relation to a position, profession,
business, or calling, bringing such person prominently before the
public, or in relation to the qualifications for such a position,
business, profession, or calling of any person prominent or seeking
prominence before the public, and no statement relating to any act done
by any person in a public place, nor any other statement of matter which
is of public and general interest, shall be deemed a statement
concerning the private life or affairs of such person within the meaning
of this act.
"SECT. 2. It shall not be a defence to any criminal prosecution brought
under section 1 of this act that the statement complained of is true, or
that such statement was published without a malicious intention; but no
person shall be liable to punishment for any statement published under
such circumstances that if it were defamatory the publication thereof
would be privileged."