ertainty is the basis of law, and the necessity of definite rules of property was felt then as it is today; and so we find in the early periods of the development of equity jurisprudence a gradual breaking away from the theory that relief should be given where. ever it seemed fair and just, and adherence to the decisions of former chancellors begins to exercise a restraining influence.' This adherence, too closely observed perhaps by some, too loosely by others, resulted in the end in the establishment of a system of jurisprudence confined within limits only a little less rigid and based upon principles only a little less definite than was the case with the common law." The principles of equity were in their nature more liberal and more in accord with the idea of "natural equity," yet they were none the less definitely defined and invariable.

According to the theory of equity jurisprudence after it became a developed and crystalized system relief could not be granted when justice seemed to demand it, for many cases of peculiar hardship and injustice failed to secure relief at the hands of the Chancellors, but only when the prayer for relief rested upon principles, well known and clearly defined, of which the court could take recognition.*

This review of the origin and nature of equity jurisprudence having shown that equity is a crystalized system, not a system of

*

*

"It is to be remembered that the jurisdiction of the courts of chancery to grant injunctions was formerly limited; it was limited by the practice of different chancellors. The instances in which an injunction might be granted were decided by that court and there were certain wellknown cases in which it was settled that the court ought not to grant an injunction. Sir Geo. Jessel in Beddon v. Beddon, 9 Ch. D., 89.

2 "After its growth had proceeded so far that its important principles were all developed, equity became a system of positive jurisprudence, peculiar indeed and differing from the common law but founded upon and contained in the mass of cases already decided. The chancellor was no longer influenced by his own conscience or governed by his own interpretation of Divine morality. He sought for the doctrines of equity as they had already been promulgated and applied them to each case which came before him." Pomeroy Eq. 59; Beddon v. Beddon, 9 Ch. D., 89; Lord Eldon in Gee v. Pritchard, 2 Swanst. 402; Lord Campbell in Emp. of Austria v. Day, 3 D. G. F. & J., 217, 237.

33 Blackstone's Com. p. 430.

4 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. Lord Eldon in Gee v. Pritchard, 2 Swanst. 402, 413.

justice administered according to the conscience of the individual judges, the next inquiry is to discover whether the invasion of one's privacy resulting in the wounding of his feelings and sensibilities, comes within any of the well established principles of equity jurisprudence.

Equitable relief has been divided by an eminent writer and master of the subject into three great divisions: 1. Equitable titles. 2. Equitable rights. 3. Equitable remedies.

The two first divisions come under the general head of "equities," and the equitable right or title that arises, exists "distinct from and independent of the legal title." In these departments equity enforces rights which courts of law do not recognize. But while in these cases equity requires a causa in the Roman law sense of the word, the "equity" that it protects or enforces is connected in its very nature with property. The recognition of an equitable assignment of a chose in action is an example of the first class, and a dry trust an example of the second.

In the third class equity creates no new rights but simply affords a better relief than can be found in courts of law, for rights which courts of law recognize; as for example, the restraining of a nuisance or a trespass. Thus, at the very threshold of this discussion we are met by the inquiry, does the common law recognize such a right as the right to privacy by giving an action for injured feelings or sensibilities. Thus, if the "right to privacy" is to be protected it must be, because the remedy at law for its invasion is inadequate, not because equity recognizes any equitable title to seclusion or retirement, for there is none. It is true, as is often loosely asserted, that equity has a jurisdiction separate and distinct from legal rights, but that independent jurisdiction is not based upon considerations of conscience and a sense of moral fitness, but upon principles of justice connected with the ownership and enjoyment of property.

The prevention of waste and trespass, the protection of literary property, patent rights and trade marks, are examples of cases where relief is given because the common law remedy is inadequate, not because equity treats a distinct and independent right. But it is contended that the property rights and relations of contract and trust, for the protection of which equity takes jurisdiction 'Bispham Principles of Equity, 5th Ed. 32, 33, 34.

in case of unpublished letters and literary productions, have no existence in reality, being mere fictions in the minds of the chancellors. A person certainly has property rights in the productions of his mind, and letters are oftentimes written with the intention of making them literary productions, and they are so considered. Therefore, as equity cannot go into each case and say this is valuable as property because it is a literary composition of merit and this is not, the same protection is furnished to the letter of a writer of renown which is valuable as literature, and the bare statement of a tradesman in a letter, that he does not dine with his wife.' Generally, also, letters are written with the understanding, expressed or implied, that they shall be kept secret, and whenever such an understanding can be fairly drawn from the circumstances of any case, privacy to that extent should be and is protected.'

But, aside from these considerations, an invasion of one's privacy, however distasteful it may be, or however deeply it may wound his feelings, is not the subject of an action, for the common law does not recognize mental anguish as a ground for damages except where a physical condition results as the proximate cause of the act producing the anguish. Wounded feelings are often reasons for aggravation of damages, but the right of action, the legal injuria must exist by reason of the invasion of another and different right."

These contentions are tacitly admitted in the Harvard Law Review article, but the contention is still made that on grounds of propriety and moral fitness the privacy of one personality should be protected. This contention must rest upon the assumption that equity is a shifting, ambulatory system of jurisprudence which is to be exercised in any case where the relief asked for

1 Woolsey v. Judd, 4 Duer, 379; Prince Albert v. Strange, 2 De Gex and Sm 652, 694, 695; Gee v. Pritchard, 2 Swanst. 402.

*Abernethy v. Hutchinson, 3 L. J. Ch. 309; Tuck v. Priester, 19 Q. B. D. 639; Morrison v. Moat, 9 Hare, 241.

3 Victoria R. R. v. Coultas, 13 App. Cas. 222; Wyman v. Leavitt, 71 Me. 277; Canning v. Williamston, 1 Cush. 451; Lehman v. Brooklyn Co., 47 Hun, 355: Phillips v. Dickerson, 85 Ill. 11; Haite's Curators v. Texas & Pac. Ry. Co., 60 Fed. Rep. 557. "The law does not give an action for things of delight." William Alfred's Case, 9 Rep. 586.

4 That damages may be enhanced by proof of mental anguish or injury to feelings, is well illustrated in an action by a parent for the seduction of his child, and in actions of libel and slander.

seems meet to the conscience of the Chancellor. That equity is not such a system it is submitted has been clearly shown.

The language of Sir Knight Bruce in Prince Albert v. Strange;used to support this contention, does not, when taken as a whole, support or recognize any right to privacy, or right to be free from interference by an inquisitive world, but the right to the "privacy of property" as one of the essential elements of property. The nature of that case naturally led the judges who decided it into making certain loose remarks concerning the sacredness of the home, and of the obloquy which should rest on one who, through mercenary desires to pander to a prurient curiosity, invades the seclusion of private life; yet the decision itself rests on those wellestablished grounds of equity jurisdiction; the protection of property rights and relations of contracts or trusts, grounds as old as the jurisprudence itself.'

Indeed the counsel for the Queen and Prince Albert expressly said: "The interference of this court is not asked for on the grounds of decorum or good taste, but upon the general principle that this court will protect every person in the free and innocent use of his own property and will prevent anyone from interfering with that use to the injury of the owner." And the court in granting the injunction placed it on the ground that the publication of

"It was said by one of the learned counsel for the defense that the injunction must rest upon the ground of property or breach of trust; both appear to me to exist. The property of an author or composer of any work unpublished and kept for his private use or pleasure can not be disputed after the many decisions in which that proposition has been affirmed. If then such right and property exists in the author of such works it must so exist exclusively of all other persons. He (the defendant) contends that admitting the plaintiff's right and property in the etchings in question and as incident to it the right to prevent the exhibition, or publication of any copies of them, yet he admits that some person having had access to certain copies how obtained I will presently consider, and having from such copies composed a description and list of the originals, he, the defendant, is entitled to publish such list and description; that is, that he is entitled against the will of the owner to make use of his exclusive property." Knight Bruce in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696. "It is to prevent the use of that which is the exclusive property of another that an injunction is granted. I have examined the cases that I have been able to meet with and I find that they all proceed upon the ground of title to the property in the plaintiff." Lord Eldon in Southey v.. Sherwood, 2 Mer. 435; Miller v. Taylor, 4 Burr, 2378.

the catalogue would infringe a right of property, in that it would make public what the owner had a right to keep private and thus violate the privacy of property, which in many cases before publication, is one of the most valuable elements of the property right in a literary or artistic production.' The contract or trust relation which must have been violated to secure possession of the plates was referred to by the vice chancellor' and made an express ground of the decision by the lord chancellor.3

But, the right to the privacy of one's personality or the sacredness of the home from curious invasion by the public, if in the minds of the chancellors at all, were referred to only by way of dicta. "Upon the principle, therefore, of protecting property," says the court, "it is that the common law in cases not aided nor prejudiced by statute shelters the privacy and seclusion of thoughts and senti

"Upon the first question, therefore, that of property, I am clearly of opinion that the exclusive right and interest of the plaintiff in the composition or work in question being established and there being no right or interest whatever in the defendant the plaintiff is entitled to the injunction of this court to protect him against the invasion of such right and interest by the defendant which the publication of any catalogue would undoubtedly be." Lord Chancellor Cottenham in Prince Albert v. Strange, 1 MacN. & G. 25, 44. "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." Knight Bruce in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696. "Addressing the attention specifically to the particular instance before the court we cannot but see that the etching executed by the plaintiff and his consort for their private use, the produce of their labor and belonging to themselves. they were entitled to retain in a state of privacy, to withhold from publication. Can I then deny it to be an interference with another's property? I thirk not." Knight Bruce in Prince Albert v. Strange, 2 DeGex & Sm. 652, 697.

2 "The breach of trust being established, I should equally interfere in his favor." Knight Bruce in Prince Albert v. Strange, 2 DeGex & Sm. 652, 716.

3" Upon the evidence on behalf of the plaintiff and in the absence of any explanation on the part of the defendant I am bound to assume that the possession of the etchings by the defendant had its foundation in a breach of trust, confidence or contract * * * and upon this ground I think the plaintiff's title to the injuction fully established." Lord Chancellor Cottenham in Prince Albert v. Strange, 1 MacN. & G. 25, 44.

4 Knight Bruce in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695, 696.