a trade, which is pursued with industry, as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand."

From time to time since the publication of this article the theory has been presented in cases before various tribunals; but it has never been approved or adopted by any Court of last resort before the year 1905, when, in the case of Pavesich v. N. E. Mut. L. Ins. Co., 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104, 2 Am. & Eng. Ann. Cas. 561, it was held that the invasion of a person's right of privacy is actionable, regardless of special damage to person, property, or character. Such right of privacy was defined by Mr. Justice Cobb, speaking for the Court, as the right, if one so desires, "to live a life of seclusion," and by way of illustration he remarks that the right would prevent the publication of "those matters and transactions of private life which are wholly foreign, and can throw no light whatever" on the competency for office of any public man. In Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828 (1902), Chief Judge Parker describes it as the right that a man has

"to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals, or newspapers, and, necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise."

Judge Gray, in his dissenting opinion in Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671 (1895), held that the erection of a statue of a deceased relative violated the right.

The right of privacy is said to be the "right to be let alone." As is pointed out by Cobb, J., in Pavesich v. N. E. Mut. L. Ins. Co., supra, the Roman law recognized a right of privacy when it made actionable to speak to one without permission, or to follow him on the street. It is asserted that a man has a right to withdraw from the world, to leave a blank as if he never had been, and other human beings are forbidden to recognize his existence or speak of his memory. In the case of Schuy

ler v. Curtis, 27 Abb. N. C. 387, 15 N. Y. Supp. 787, and in the Appellate Division of the same Court (64 Hun), 594, 19 N. Y. Supp. 264, the right of privacy was recognized as prohibiting the erection of a statue of a deceased relative, on the theory that the flaunting of the memory of the plaintiff's deceased relative before the world invaded the plaintiff's right to be let alone. This case was reversed in the Court of Appeals (147 N. Y. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671); but the Court was of the opinion that if the right of privacy existed, in a proper case it would prohibit talk of one's deceased relatives, or a statue of them, and presumably a picture published in the newspaper, as effectually as if the suit was brought by the person whose picture was published.

These definitions show that the right of privacy contended for would embrace all forms of interference with the mental well-being of an individual, whether by publishing his picture, by gossip, or by pointing him out as possessed of peculiar qualities. The gravamen of the offence would consist in the interference with his right of seclusion, irrespective of the intent of the intermeddler. Mr. Justice Gray, in his dissenting opinion in Schuyler v. Curtis, supra, regards the right of privacy as a "form of property," and bases his claim that equity should interfere by an injunction solely on that ground, quoting Prince Albert v. Strange, 2 De Gex & S. 652, Gee v. Pritchard, 2 Swanst. 402, and other English cases, all of them basing the interference of equity on a violation of complainant's property rights. After citing the above decisions, the judge proceeds:

"These decisions are authority for the doctrine that equity will interfere to prevent what are deemed to be violations of personal legal rights, and the only limitation upon the application is that the legal right which is to be protected shall be one cognizable as property."

A careful reading of the opinion leads to the conclusion that it was because the judge regarded this right as one of property that equity could furnish relief when it was prohibited from so doing in cases of libel and injury to the reputation generally. In the dissenting opinion of the same justice in Roberson v. Rochester Folding Box Co., supra, a dissent concurred in by two other justices, he writes:

"I think that this plaintiff has the same property in the right to be protected against the use of her face for the defendant's commercial purposes as she would have if they were publishing her literary compositions."

In this opinion, also, the right of equity to interfere is based purely on the right of property.

No reason save the above analogy is given in the opinion for considering the right of privacy as a property right. In our opinion, the analogy is not a sound one.

In the case of Pavesich v. N. E. Mut. L. Ins. Co., supra, Mr. Justice Cobb, having made the concession that prior to 1890 every adjudicated

case, both in this country and in England, which might be said to have involved a right of privacy, was not based upon the existence of such right, but was founded upon a supposed right of property, or a breach of trust or confidence, or the like, and that therefore a claim to a right of privacy, independent of a property or contractual right, or some right of a similar nature, had up to that time never been recognized in terms in any decision, and that the entire absence for a long period of time, even for centuries, of a precedent for an asserted right, should have the effect to cause the Courts to proceed with caution before recognizing the right, for fear that they may thereby invade the province of the lawmaking power, argues as follows:

"But such absence, even for all time, is not conclusive of the question as to the existence of the right. The novelty of the complaint is no objection, when an injury cognizable by law is shown to have been inflicted on the plaintiff. In such a case, ‘although there be no precedent, the common law will judge according to the law of nature and the public good.' Where the case is new in principle, the courts have no authority to give a remedy, no matter how great the grievance; but where the case is only new in instance, and the sole question is upon the application of a recognized principle to a new case, 'it will be just as competent to courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago.' Broom's Leg. Max. (8th ed.) 193. This results from the application of the maxim ‘Ubi jus ibi remedium,' which finds expression in our Code, where it is declared that 'For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.' Civ. Code Ga. 1895, § 4929. The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved than he has to violate the valid regulations of the organized government under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively; consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature. A right of privacy in matters purely private is therefore derived from natural law. This idea is embraced in the Roman's conception of justice, which 'was not simply the external legality of acts, but the accord of external acts with the precepts of the law prompted by internal impulse and free volition.' McKeldey's Roman Law (Dropsie) $123. It may be said to arise out of those laws sometimes characterized as immutable, ‘because they are natural, and so just at all times and in all places, that no authority can either change or abolish them.' 1 Domat's Civil Law, by Strahan (Cushing's ed.) 49. It is one of those rights referred to by some law-writers as absolute, 'such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.' 1 Bl. 123."

In the course of his opinion he dismissed from his consideration the case of Atkinson v. Doherty Co., 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St. Rep. 507 (1899), with the remark that all that was decided in that case was that the right of privacy dies with the person, and "therefore the decision in its facts is authoritative no further than the decision of the New York Court of Appeals in Schuyler v. Curtis." He asserts that his conclusion is in conflict with neither of these cases and closes the discussion of them with the remark that the right of privacy is personal.

It is obvious that a right cannot be one of person and of property at one and the same time. The conclusion would seem to be that, if the right of privacy exists, and has been recognized by the law, it must be as a personal tort right. It cannot be a right of property. The gravamen of the offence in a violation of the right of privacy is the interference with the seclusion of the individual, and not of the publication. In the case of Pavesich v. N. E. Life Ins. Co., supra, the case relied on by the plaintiff, and in the plaintiff's own case, the count charging the violation of the right of the privacy is trespass vi et armis for a direct injury to the person like an assault. If, however, the publication were an ingredient of the action, then the proper count would be trespass on the case for an indirect injury to the person, as is the case in libel and slander. The right of privacy is recognized in the Georgia case as violated when the only damage alleged is mental suffering. The law divides all causes of actions into two classes with respect to damages. First, those in which the act, in and of itself, is unlawful. In this class, damage will be presumed, and, in the absence of proof of actual damage, nominal damages will be awarded. Second, those in which the act is regarded as lawful, unless actual damage results, and in this class pecuniary loss must be shown. In the first class may be placed all direct infringements of absolute personal or property rights, such as false imprisonment, assault, trespass on land, or conversion. In all of these, the act of false imprisonment, or assault, etc., being shown, the right of action is complete, and nominal damages may be recovered of right. In the second class may be placed all actions on the case, such as nuisances, negligence in general, and libel and slander. In none of these will mental suffering alone sustain a right of action. Owen v. Henman, 1 Watts & S. 548, 37 Am. Dec. 481; Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401; Lynch v. Knight, 9 H. L. Cas. 577; Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308; Dockrell v. Dougall, 78 L. T. N. s. 840 (1898); Simone v. Rhode Island Co., 28 R. I. 186, 66 Atl. 202, 9 L. R. A. N. s. 740. One apparent exception exists to this rule: In libel and slander, when the words spoken or pictures published are of such a nature that the Court can conclude, as a matter of law, that they will tend to degrade the person, or hold him up to public hatred, contempt, or ridicule, or cause him to be shunned and avoided, then pecuniary damage is presumed, and the words are held libellous or slanderous per se. 25 Cyc. 253.

If the gravamen of the action for a breach of the right of privacy is the publication of the information or of the picture taken, then the injury is an indirect injury to the person, resembling libel, and, in common with that action, actual pecuniary damage must be alleged and proved to entitle the plaintiff to recover. If, however, the invasion of the right of seclusion is the gravamen of the action, the case is analogous to assault, and, the pecuniary damages being presumed by the law, the mental suffering sustained because of the peculiar method of publishing may be shown by way of aggravation of damages. It is evident, therefore, that the gist of the action for a breach of the right of privacy is the violation of a right of personal seclusion, and not the subsequent publication: (1) Because of the definitions of the right of privacy; (2) because of the form of action, trespass vi et armis, and not trespass on the case; (3) because no special damage is alleged.

In no opinion or dictum is the right of privacy based upon natural right prior to the opinion in the case of Pavesich v. N. E. Life Ins. Co., supra. Mr. Justice Gray in his dissenting opinions in Schuyler v. Curtis, supra, and in Roberson v. Rochester Folding Box Co., supra, and Judge Colt in Corliss v. Walker (C. C.) 64 Fed. 280, 31 L. R. A. 283, contend for the existence of the right of privacy as an extension of the right of property. The opinion in the Pavesich Case, supra, however, is founded upon the doctrine of a natural right. This was the second case, involving the existence of the right to privacy, that was decided by a Court of last resort. In the first case, viz., Roberson v. Rochester Folding Box Co., supra, the question whether such a right existed was decided in the negative. Commenting upon this decision, Mr. Justice Cobb made allusions to both the majority and minority opinions, and among others the following:

"In Roberson v. Rochester Folding Box Co. (1901) 46 App. Div. 30, 71 N. Y. Supp. 876, decided by the Appellate Division of the Supreme Court of New York, it appeared that lithographic likenesses of a young woman, bearing the words 'Flour of the Family,' were without her consent printed and used by a flour milling company to advertise its goods. The declaration alleged that in consequence of the circulation of such lithographs the plaintiff's good name had been attacked, and she had been greatly humiliated and made sick, and been obliged to employ a physician, and prayed for an injunction against the further use of the lithographs and for damages. It was held that the declaration was not demurrable. It was also held that, if a right of property was necessary to entitle the plaintiff to maintain the action, the case might stand upon the right of property which every one has in his body. This case came before the Court of Appeals of New York in 1902, and the judgment was reversed. 171 N. Y. 540, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828. This is the first and only decision by a Court of last resort involving directly the existence of right of privacy. The decision was by a divided Court; Chief Judge Parker and three of the associate judges concurring in a ruling that the complaint set forth no cause of action either at law or in equity, while Judge Gray, with whom concurred two of the associate judges, filed a dissenting opinion, in which it