connection. But difficulties with respect to equitable relief against writing and publishing apply equally to each, and in the actual development of the subject in the cases other points have been of such controlling importance as to justify if not to compel departure from the logical scheme.

Using defamation, for the moment, to include disparagement of property, five questions have arisen with respect to the powers of a court of equity: (1) Has a court of equity jurisdiction to protect rights of personality or is its jurisdiction confined to securing rights of property? (2) If only rights of property may be protected, what is meant by property in this connection? Is the term used in a broad sense to signify interests of substance as distinguished from interests of personality? (3) Is relief by injunction against libel or published disparagement of property precluded by common-law policy or constitutional provision as to freedom of the press? (4) Does common-law policy as to jury trial or Fox's Libel Act as declaratory thereof require an issue as to the truth of a publication to be tried to a jury? (5) Whatever the general principles of equity jurisdiction may require, is the matter foreclosed for practical purposes by a settled current of authority against injunctions in these cases?

All discussion of these questions runs back to the famous case of Gee v. Pritchard. In that case defendant had been brought up in the family of the plaintiff's late husband and had been educated as an adopted son. Being dissatisfied with the provision made for him on the death of plaintiff's husband, he threatened to publish letters which the plaintiff had written to him as to a member of the family. The cause came before Lord Eldon on motion to dissolve an interlocutory injunction against such publication. In the course of a colloquy with counsel at the hearing, Lord Eldon said that equity would not enjoin publication of a libel because such publication was a crime and equity had no jurisdiction to prevent crimes; that the case could not be maintained on the ground of protecting plaintiff's feelings or securing any other interest of personality, and that relief could only be rested on protection of rights of property. Afterwards he denied the motion to dissolve and continued the injunction in force on the ground that the plaintiff had a "sufficient the title to property one may seriously injure another by disparaging the property itself.

property in the original letters to authorize an injunction unless she has by some act deprived herself of it." 7

9

8

Had it not been repeated many times & Lord Eldon's first proposition would hardly appear to require consideration. No one would assert that equity has jurisdiction to prevent crimes as such. But equity is not precluded from preventing irreparable injury through a civil wrong because the act, in another aspect, may be the subject of a criminal prosecution. Indeed the very court which cites Lord Eldon's dictum, repeated by Lord Campbell, as a ground for refusing an injunction against disparagement of title, has settled the point in a long line of decisions.10 We must remember that in 1818 the jurisdiction of equity to enjoin trespasses on land was not yet well developed and the whole subject of equity jurisdiction over torts was backward because of the unsatisfactory mode of trial. It will have been perceived that the real injury in Gee v. Pritchard was an invasion of the right of privacy. In result therefore, a case in which we are told that equity has no jurisdiction to secure interests of personality, and the case always cited since for that proposition, was a pioneer decision finding a way for securing the then unknown right of privacy." Characteristically, Lord Eldon's language was cautious, but his action was bold. As in Lane v. Newdigate 12 he did not strike down a historical prejudice which stood in

7 2 Swanst. 424.

8 E. g., by Lord Campbell in Emperor of Austria v. Day, 3 DeG. F. & J. 217, 238– 41, relied upon in Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69.

• Springhead Co. v. Riley, 6 Eq. 551; Atty. Gen. v. Terry, 9 Ch. App. 423, 431; Atty. Gen. v. Heatley (1897), 1 Ch. 560; In re Debs, 158 U. S. 564, 593; Beck v. Teamsters' Union, 118 Mich. 497, 526, 77 N. W. 13; Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106. Lord Eldon himself saw this. In the very sentence under discussion he adds: "excepting, of course, such cases as belong to the protection of infants, where a dealing with an infant may amount to a crime, an exception arising from that peculiar jurisdiction of this court." In other words, when equity has jurisdiction apart from any question of a crime, its jurisdiction is not defeated by the circumstance that the act might also be the subject of a prosecution.

10 See Vegelahn v. Guntner, 167 Mass. 92, 99, 44 N. E. 1077, and cases cited. There are numerous subsequent decisions to the same effect.

11 This did not escape notice. In Brandreth v. Lance, 8 Paige, 24 (1839), Walworth, C., said: "But it may perhaps be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property only, when in fact the object of the plaintiff's bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence as a matter of feeling only." 10 Vesey Jr. 192.

12

the way of the right result, but found a way around it to that result, so here, while apparently denying the legal right and in terms cautiously restricting the jurisdiction of equity to the securing of interests of substance, with which it had long been occupied, he found a way to take the great forward step of securing plaintiff in her sensibilities and protecting her right of privacy by securing a right in property which had no value as property and was a mere formal peg on which to hang the substantial relief. But there were other reasons for this cautious mode of concealing a bold step. For one thing at that time courts of equity were hesitant in dealing with torts, feeling a natural reluctance to try questions which were adapted peculiarly to trial by jury, in view of the unsatisfactory method of taking evidence in equity. Again he might properly fear infringement of freedom of the press, a point to be considered presently. Again 1818 was too early to be raising a question of the legal right of privacy. But if the jurisdiction of equity was to be invoked it was necessary to find a legal right and a legal tort. Most of all, however, Lord Eldon's language (as distinguished from his action) was influenced by the dicta of Lord Hardwicke in Huggonson's Case.13 What, then, was the state of the authorities prior to Gee v. Pritchard?

In Huggonson's Case, pending a suit in chancery, certain newspapers printed articles attacking the parties upon one side and reflecting upon their witnesses, who were said to have "turned affidavitmen." Application was made to commit the publishers for contempt. Here the publication with reference to the pending cause for the purpose of deterring witnesses from testifying was a clear contempt for which the authors and publishers could and should be punished.14 Lord Hardwicke said that he could deal with the matter only as a contempt, as an interference with the course of justice in the pending cause, not as a libel. Evidently this meant that he could not punish the publication as a libel, but only as a contempt. Nothing else was before the court, and the punishment of libels as libels belongs to the criminal law. There is no reason to suppose he meant that interests of personality could not be protected in equity or that a wrong could not be prevented in equity,

13 2 Atk. 469.

14 The leading American case is Resp. v. Oswald, 1 Dall. 319, which has been followed ever since.

where it involved irreparable injury and the legal remedy was wholly inadequate, merely because it took the form of a libel. The question of enjoining a libel which interferes with the course of justice in a pending cause was not involved.15

Two other dicta prior to Gee v. Pritchard remain to be noticed. In Burnet v. Chetwood,16 Lord Parker (afterwards Lord Macclesfield) argues that the chancellor has a general superintendency over all books and hence may abate immoral books as a nuisance. This was after the parliamentary censorship of the seventeenth century had come to an end. But the old royal censorship, to which the chancellor might claim to have succeeded, had ceased in Tudor times. Obviously the dictum went very much too far. But it goes to show that when Lord Eldon foreclosed the matter by his offhand remarks in 1818 it was by no means settled by authority. Indeed a characteristic dictum of Lord Ellenborough in 1810 shows what some lawyers at least thought at that time. In DuBost v. Beres

15 The English courts enjoin such publications. In Coleman v. Railway Co. (1860), 8 W. R. 734, Sir W. Page Wood, V. C., enjoined one of the parties pending litigation, from publishing garbled accounts tending to prejudice his adversary's case. He cites Huggonson's Case. In Kitcat v. Sharp, 52 L. J. Ch. 134, the same question was before Fry, J., and he granted an injunction citing the Coleman case. This is after the Judicature Act. But the Coleman case was before that act and is a clear authority for power to enjoin such libels without a statute.

In Dailey v. Superior Court, 112 Cal. 94, 44 Pac. 458, Durrant was on trial in San Francisco for murder. Pending the prosecution, Dailey produced in San Francisco a play, entitled "The Crime of a Century," purporting to depict the murder. The trial court ordered him to cease advertising and producing the play. The Supreme Court held, one judge dissenting, that there was no jurisdiction to make the order. Neither of the English cases in point was referred to. The chief argument was that the order interfered with free speech, guaranteed by the Constitution, but it was said also that if equity could interfere in such a case it could do so only in order to protect property. One might perhaps ask whether this injury to public justice could not have been enjoined upon information, as in case of a public nuisance. The spectacle purporting to represent the murder is not very different in principle from the prize-fighting spectacles that have been enjoined. Columbian Athletic Club v. State, 143 Ind. 98, 40 N. E. 914; Atty.-Gen. v. Fitzsimmons, 35 AM. LAW REG. 100. And the posters and other advertising are not like ordinary publications. Certainly indecent posters on defendant's property which injured public morals could be reached in this way. Why not, then, libelous posters which interfere with the course of justice in a pending cause? Some of the results of denying an injunction in such cases may be seen in People v. Durrant, 116 Cal. 179, 223, 225-26, 48 Pac. 75, 87, 88.

It should be said that the Supreme Court of the United States took the same position arguendo in Patterson v. Colorado, 205 U. S. 455, 462.

16 (1720), 2 Meriv. 441, note.

jord 17 an artist had painted a picture entitled "Beauty and the Beast," which, the report tells us, "was a scandalous libel upon a gentleman of fashion and his lady." The picture was exhibited for money and great crowds went to see it. Defendant, the brother of the lady, cut it to pieces and was sued in trespass by the owner. Lord Ellenborough said obiter that upon application to the chancellor he would have granted an injunction against the exhibition. Here the interest involved in a suit for an injunction would have been one of personality. The basis of the plaintiff's claim would have been reputation or privacy. There was no writing or speaking, and no infringement of liberty would have been involved beyond that involved in any injunction. The remedy at law was grossly inadequate. If Lord Ellenborough was wrong and if Mr. Campbell (as he then was) should have put this case in his drawer for bad law, it was not because of authority or because of any difficulty on principles of equity jurisdiction, but because equity was just learning to enjoin torts generally and was held back by its mode of trying questions of fact.

It may be repeated, Lord Eldon's dicta in Gee v. Pritchard were over-cautious. But, as in Lane v. Newdigate, his action was bold. He did in effect secure a right of privacy by the transparent device of protecting a nominal property in the letters.

Supposing, however, that only rights of property may be protected in equity, what does "property" mean in this connection? This question arose in Dixon v. Holden.18 In that case defendants were about to publish falsely (and knowing it to be false) that plaintiff was a partner in a bankrupt firm and that he had defrauded the creditors of that firm. An injunction was granted. It will be noted that the interest involved was wholly one of substance. The injury threatened was to credit and business reputation and involved de

17 2 Camp. 511. "Lord Ellenborough ought to have been particularly grateful to me for suppressing his bad decisions. . . . Before each number was sent to the press, I carefully revised all the cases I had collected for it and rejected such as were inconsistent with former decisions or recognized principles. When I arrived at the end of my fourth and last volume, I had a whole drawer full of 'bad Ellenborough law."" Autobiography of Lord Campbell, HARDCASTLE, LIFE OF LORD CAMPBELL, I, 215. There is nothing in the case of DuBost v. Beresford worthy of a report unless it is the dictum in question. Hence the remark of the editor of the State Trials as to the astonishment with which it was received by the profession (20 How. St. Tr. 799, note) is probably apocryphal.

18 7 Eq. 488.