was maintained that the injunction should have been granted. While the ruling of the majority is limited in its effect to the unwarranted publication of the picture of another for advertising purposes, the reasoning of Judge Parker goes to the extent of denying the existence in the law of a right of privacy, 'founded upon the claim that a man has a right to pass through this world without having his picture published, his business enterprises discussed, or his eccentricities commented upon, whether the comment be favorable or otherwise.' The reasoning of the majority is, in substance, that there is no decided case, either in England or in this country, in which such a right is distinctly recognized; that every case that might be relied on to establish the right was placed expressly upon other grounds, not involving the application of this right in any sense; that the right is not referred to by the commentators and writers upon the common law or the principles of equity; that the existence of the right is not to be legitimately inferred from anything that is said by any of such writers; that a recognition of the existence of the right would bring about a vast amount of litigation; and that in many instances where the right would be asserted it would be difficult, if not impossible, to determine the line of demarcation between the plaintiff's right of privacy and the well established rights of others and of the public. For these reasons the conclusion is reached that the right does not exist, has never existed, and cannot be enforced as a legal right. We have no fault to find with what is said by the distinguished and learned judge who voiced the views of the majority as to the existence of the decided cases, and agree with him in his analysis of the various cases which he reviews, that the judgment in each was based upon other grounds than the existence of a right of privacy. We also agree with him so far as he asserts that the writers upon the common law and the principles of equity do not in express terms refer to this right. But we are utterly at variance with him in his conclusion that the existence of this right cannot be legitimately inferred from what has been said by commentators upon the legal rights of individuals, and from expressions which have fallen from judges in their reasoning in cases where the exercise of the right was not directly involved. So far as the judgment in the case is based upon the argument ab inconvenienti, all that is necessary to be said is that this argument has no place in the case if the right invoked has an existence in the law. But if it were proper to use this argument at all, it could be said with great force that as to certain matters the individual feels and knows that he has a right to exercise the liberty of privacy, and that he has a right to resent any invasion of this liberty; and if the law will not protect him against invasion, the individual will, to protect himself and those to whom he owes protection, use those weapons with which nature has provided him, as well as those which the ingenuity of man has placed within his reach. Thus the peace and good order of society would be disturbed by each individual becoming a law unto himself, to determine when and under what circumstances he should avenge the outrage which has been perpetrated upon him or a member of his family."

Mr. Justice Cobb pays tribute to conservatism, but warns against its undue application, as follows:

"The valuable influence upon society and upon the welfare of the public of the conservatism of the lawyer, whether at the bar or upon the bench, cannot be overestimated; but this conservatism should not go to the extent of refusing to recognize a right which the instincts of nature prove to exist, and

which nothing in judicial decision, legal history, or writings upon the law can be called to demonstrate its nonexistence as a legal right."

It is evident, therefore, that the Court considered the right of privacy as a natural right, and that natural rights are something reserved from all governments when society was formed; in other words, that there are rights reserved to the people, other and above those guaranteed by the Constitutions of the United States, and States, and that these rights are enforceable in a Court of Justice. . . .

In the Pavesich Case, supra, the Court found that the right of privacy is "guaranteed to persons in this State both by the Constitutions of the United States and of the State of Georgia, in those provisions which declare that no person shall be deprived of liberty except by due process of law." In another portion of the opinion the principle of the right of privacy is found to have been guaranteed by an interpretation of the word "life." . . . It is proper to point out that the comprehensive provisions of Civ. Code Ga. 1895, § 4929, hereinbefore set forth, are entirely lacking in our Constitution or statutes. The provisions most closely resembling the same are to be found in Const. art. 1, § 5, as follows:

"Every person within this State ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely and without purchase, completely and without denial, promptly and without delay, conformably to the laws"

The function of adjusting remedies to rights is a legislative rather than a judicial one, and up to the present time the Legislature of this State has omitted to provide a remedy for invasion of the right of privacy. . . . But inaction upon the part of the Legislature, however long continued, cannot confer legislative functions upon the Judiciary. Whenever public opinion becomes sufficiently strong, legislative action is sure to follow; for, in general, legislation is the coinage of public opinion into statutes.

We pass, therefore, to the consideration of the claim of Mr. Justice Cobb that the principle of the right of privacy was well developed in the Roman law, and from there was carried into the common law, where it appears in various places. He finds that "shouting until the crowd gathered round one," or "following an honest woman or young boy or girl," or "attracting attention to another as he was passing along the highway or standing upon his private grounds," were actionable at Roman law. The recognition of the principle underlying these actions in the Roman law is found in the common law in the law of nuisance, both public and private; for example, public scolds and eavesdroppers. Lord Coke is found to have sanctioned it in Semayne's Case, 5 Coke, 91, when he gives force to the maxim that "every man's house is his castle." So, too, the same Court claims, every Constitution sets its approval on

a tort right of privacy when it prohibits unreasonable search. The law of evidence contributes to this ever-present right "to be let alone" when it forbids husband and wife to divulge privileged communications, and sets a seal upon the knowledge of an attorney gained from his client. From these instances the Court concludes that the legal principles of the Roman law are introduced into the common law, and that "liberty of privacy has been recognized by the law and is entitled to continual recognition."

It is difficult to discover how the theory of public nuisiance, the first principle of which is that a private individual cannot remedy his fancied wrong, is made to support an absolute right of privacy such as has been described in the Roman law and sanctioned in the Georgia Case. Blackstone defines a nuisance as "anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another." 3 Bl. Com. (Sharswood's Ed.) *216. The very theory of nuisance is the doing of something intrinsically lawful in a manner damaging to others, and it is the resultant damage that creates the wrong. The right of privacy, on the other hand, which the Supreme Court of Georgia seeks to establish, is an absolute tort right, the merest interference with which is an actionable wrong. In nuisance, not only must special damages be alleged to sustain an action, but it is well settled that mental suffering alone will not constitute damage sufficient to sustain an action (Owen v. Henman, supra; Sparhawk v. Union Passenger Ry. Co., supra ;) a branch of similar rule obtaining in libel and slander cases not actionable per se, where special damage must be shown (Lynch v. Knight, supra; Pollard v. Lyon, supra; Dockrell v. Dougall, supra); and in negligence cases (Simone v. Rhode Island Co., supra). In the right of privacy, however, in the Georgia Case, and in the case now before the Court, no damage is alleged other than mental suffering. The law of nuisance, not only does not recognize a right of privacy, but is in theory incompatible with it.

The rule, "Every man's house is his castle," does not rest on a right of personal privacy; otherwise, the same immunity would follow the person when without his house, or when the officer had found the outer door open and broke in an inner paneling. The same is true of provisions as to unreasonable searches, based squarely on this old maxim and now defended by the Constitution. So, too, it is apparent that the divulging of communications between husband and wife rests on some principle other than the right of privacy, else the bar would still continue when testifying against each other in a divorce suit. These rules are and always have been based on principles of sound public policy, irrespective of the wishes, or desires, or interests of the persons affected. It is not claimed that these instances were ever based on a right of privacy. The contention is that at best they might be or ought to be, and that, because certain results may be obtained by applying the theory of absolute right of privacy, therefore a right of privacy is

established. Such an argument is fallacious, and none of the instances given recognize or support the right of privacy in the common Law.

Every exponent of the right of privacy cites as an authority in support of his contentions one sentence in Cooley on Torts, p. 29, where the learned author is discussing the right of personal immunity, and the sentence is as follows:

"The right to one's person may be said to be a right of complete immunity; to be let alone."

The meaning of this sentence is amply explained by the one immediately following:

"The corresponding duty is not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction of an injury. In this particular the duty goes beyond what is required in most cases; for usually an unexecuted purpose or an unsuccessful attempt is not noticed." The paragraph is given over entirely to a discussion of the doctrine of assault. The author is not, therefore, ushering in a new right of complete immunity. The right "to be let alone" refers unmistakably to the right to be free from bodily injury, or from a reasonable fear of bodily injury, at the hands of a fellow being.

The principle underlying the right of privacy is not analogous to that upon which assault is based. In State v. Baker, 20 R. I. 275, 38 Atl, 653, 78 Am. St. Rep. 863 (1897), this Court, speaking through Mr. Justice Tillinghast, adopted the definition of assault given by Mr. Bishop as "any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being" (2 Bish. Cr. L. § 23). . . . Apprehension of immediate physical harm is not an essential element of the right of privacy. But the incompatability between the principle of assault and that of the right of privacy is most strikingly brought out by the familiar rule that words alone can never constitute an assault. Cooley, Torts, 167. If words cannot constitute an assault, how, then, can writings; and, if writings cannot, how could the publication of a picture? It would seem reasonable to conclude that the principle of the right of privacy finds no support in the doctrine of assault.

It has also been suggested that the principle of the right of privacy finds support in the law of libel. Enough has already been said to show the fallacy of this contention.

The foregoing considerations, together with an examination of the authorities, lead us to the same conclusion as that reached by a majority of the Court in Roberson v. Rochester Folding Box Co., supra, viz.,

"that the so-called 'right of privacy' has not as yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided."

It may be proper to state, however, that since the rendition of the foregoing decision the Legislature of the State of New York has enacted chapter 132, p. 308, of the Laws of New York of 1903, entitled "An Act to prevent the unauthorized use of the name or picture of any person for the purposes of trade," which went into effect September 1, 1903, whereby persons offending against its provisions are not only declared to be guilty of a misdemeanor, but also are made liable, in civil actions, at the suit of persons injured by such unauthorized use of name or picture, to respond in damages, including exemplary damages, for such injury. The constitutionality of this statute has been sustained by the Court of Appeals of New York in the case of Rhodes v. Sperry & Hutchinson Co. (Oct. 23, 1908), 193 N. Y. 223, 85 N. E. 1097.

As we have been unable to discover the existence of the right of privacy contended for, we must answer the first question, certified to us, in the negative.

The second question, considered solely with reference to the first count of the declaration, the second count for libel being insufficient for that purpose, as hereinbefore set forth, must also be answered in the negative.

Having thus decided the questions certified to us, we herewith send back the papers in the cause, with our decision certified thereon, to the Superior Court for further proceedings.1

1 [PROBLEMS:

The plaintiff was tried on a charge of murdering his pupil. The Scotch jury returned a verdict of "not proven." The trial caused great public interest. The defendant, who kept a wax-works museum, in which were exhibited life-size models of famous people, historic scenes, and horrible crimes, exhibited therein the plaintiff's effigy. Has the plaintiff an action? (Monson v. Tussaud, 10 Times L. Rep. 199, 277.)

The plaintiff was an actress playing in a sensational piece at the theatre. The defendant, from a theatre-box, took a flash-light photograph of the plaintiff on a trapeze, and was selling the picture. Has she an action? (Van Zandt v. Epstean, Chicago Legal News, Feb., 1887.)

The defendant physician brought with him, to attend the plaintiff in childbirth, a man S., unmarried and not a physician. The plaintiff at the time believed S. to be a physician. Has she an action? (1881, De May v. Roberts, 46 Mich. 160.)

The defendant obtained the plaintiff's picture from the photographer who had taken it for the plaintiff. He published it together with A.'s picture. The plaintiff (who was not named) was described as that of a man who had early taken an insurance policy with the defendant, and was now glad of it. A. was described as one who had not taken a policy and was now sorry; his picture showed him as a sickly man. In fact, the plaintiff had taken no policy with the defendant. Has he an action? (1905, Pavesich v. New England M. L. Ins. Co., 122 Ga. 190, 50 S. E. 68.)

The defendant without, authority published the name of the plaintiff as one who shared in responsibility for the defendant's enterprise. The plaintiff seeks to stop this use of his name, on the ground that it exposes him to the risk of litigation. (Walter v. Ashton, 1902, 2 Ch. 282.)

The defendant sheriff, after arresting the plaintiff and before trial, took the plaintiff's photograph and sent it to other police bureaus, to be placed in the