taken by the Supreme Court of the United States, 80 which has given up its dictum that "in the eyes of the law" damages are an adequate remedy for all publications.81 Others are substantially like Emack v. Kane.82 The most significant are cases of attempt to extort by means of gross libels. For example, in National Life Ins. Co. v. Myers, 83 the principal defendant was a discharged employee of a life insurance company. He and others conspired to extort money from the company by publishing advertisements in the newspapers and sending pamphlets to policy-holders containing extravagantly false charges, such as, for example, that $1,600,000 of assets had disappeared. An order allowing an interlocutory injunction was affirmed. This goes a long way. But beyond doubt the case was one where nothing in the way of fair comment or criticism was involved and the libel was so indubitable that there was no substantial occasion for jury trial. The interlocutory injunction is justified by

be enjoined. The same claim was made that courts of equity have no jurisdiction to restrain the commission of a crime. But the answer is, and always has been, that parties cannot interpose this defense when the acts are accompanied by threats, express or covert, or intimidation and coercion, and the accomplishment of the purpose will result in irreparable injury to, and the destruction of, property rights. If all there was to this transaction was the publication of a libelous article, the position would be sound. It is only libelous in so far as it is false. Its purpose was not alone to libel complainants' business, but to use it for the purpose of intimidating and preventing the public from trading with the complainants. It called upon them to boycott them. The defendants, by their conduct, gave all the patrons of complainants, and others as well, the meaning they attached to the word "boycott," and they all evidently understood it as the defendants interpreted it by their conduct and acts. It is true that, under our Constitution, no one can be enjoined from publishing a libel."

If Blackstone's view of liberty of publication is intrenched in the constitution, it is not easy to meet the criticism of this argument in Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264, 276, 96 Pac. 127.

80 Gompers v. Bucks Stove & Range Co., 221 U. S. 418.

31 Francis v. Flinn, 118 U. S. 385.

82 Lewin v. Welsbach Light Co., 81 Fed. 904; Farquhar v. National Harrow Co., 99 Fed. 160; Adriance, Platt & Co. v. National Harrow Co., 121 Fed. 827, 98 Fed. 118; Dittgen v. Racine Paper Goods Co., 164 Fed. 85; Electric Renovator Co. v. Vacuum Cleaner Co., 189 Fed. 754; Atlas Underwear Co. v. Cooper Underwear Co., 210 Fed. 347; Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471, 35 N. E. 280.

In the latest and most elaborately argued case, American Malting Co. v. Keitel, 209 Fed. 351, an injunction against repeated pamphlets and circulars, accusing plaintiff of being party to an unlawful combination and seeking to divert trade from plaintiff, was denied. The case looks very much like one of malice. Unless the statement could be held to amount to criticism or opinion or the question of truth was doubtful, the result seems unfortunate.

83 140 Ill. App. 392.

the same reasons that warrant such an injunction against a palpable nuisance.

Looking back over these cases of injury to person or property by writing and publishing, we see that the English courts now deal with them as with any other torts; that in England the subject has had the very same development as equity jurisdiction over trespass, over disturbance of easements, and over nuisance. We see also that American courts are moving in the same direction, reaching such cases indirectly by laying hold of some admitted head of equity jurisdiction and tacking thereto what is in substance a concurrent jurisdiction over legal injuries through publication. In some of the cases this is so obviously but a matter of pleading that we may be confident some strong court presently will take the direct course and will be followed therein.84 Most of the cases that grant relief speak strongly of the injustice that must result from denial of jurisdiction in these cases. In substance the traditional doctrine puts anyone's business at the mercy of any insolvent malicious defamer who has sufficient imagination to lay out a skillful campaign of extortion. So long as denial of relief in such cases rests on no stronger basis than authority our courts are sure to find a way out.

II

INJURIES TO PERSONALITY

In the colloquy in Gee v. Pritchard Lord Eldon's second proposition was that the suit could not be maintained to protect the feelings of the plaintiff, but only to protect her rights of property. The same proposition was laid down in Brandreth v. Lance. I have endeavored to show that difficulties involved in injunctions against publication have had much to do with this doctrine in the cases of defamation, in which it has chiefly come in question. But it is asserted no less dogmatically in cases of injury to personality otherwise than by writing or speaking, in which liberty of publication is in no wise involved.

A typical decision, often cited, is Chappell v. Stewart.85 In that case, the defendant employed detectives to follow the plaintiff

Compare the vigorous assertion of equity jurisdiction to protect purely personal rights in Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 67 Atl. 97.

85 82 Md. 323, 33 Atl. 542.

wherever he went and threatened to continue so to do, causing the plaintiff great inconvenience and annoyance and subjecting him to humiliation. The court sustained a demurrer to a bill for an injunction. There were allegations of injury to business and credit, but no facts showing any such injury were set forth and the case was clearly one of invasion of the right of privacy. The defendant argued that there was no such legal right. But the court refused to pass upon the question whether an action at law would lie, and held, assuming there was a legal cause of action (1) that "the ordinary processes of the law are fully competent to redress all injuries of this character," (2) that by the settled doctrine equity has no jurisdiction to secure purely personal rights. If there was a legal wrong in this case, the legal remedy was an action on the case for damages, and it is a mockery to say that a court which could give no other relief is "fully competent" to redress the wrong. Suppose, for instance, the plaintiff were a clergyman, a man of refined and sensitive feelings, and the defendant was having him "shadowed" notoriously by a detective out of pure spite with no other end than annoyance and humiliation. To say that damages under such circumstances would be an adequate remedy "in the eyes of the law" is to use the term 'adequate” in a Pickwickian sense or to attribute to the law unnecessary obliquity of vision. The other point is rested on the dicta of Lord Eldon in Gee v. Pritchard and on the statements of two text writers who repeat those dicta. We have seen elsewhere that this is a very slender basis for such a conclusion. The crucial question in such a case as Chappell v. Stewart is as to the legal right. There is no danger of interference with freedom of publication, and commonlaw policy as to jury trial is not involved more than in case of any injunction against a threatened tort. It is significant that all but one of the cases in accord with Chappell v. Stewart deny the legal right." In one case, however, the legal right was undoubted. Kneedler v. Lane 87 was a suit for an injunction against enforcement of the draft during the Civil War, on the theory of enjoining threatened assault and false imprisonment under an unconstitutional statute. It appeared that the writ of habeas corpus was suspended. The court

86 Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N. W. 285; Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442; Kneedler v. Lane, 3 Grant Cas. (Pa.) 325. Cf. Woollcott v. Shubert, 154 N. Y. Supp. 643.

divided three to two against the injunction. The main question was one of constitutional law. On the question of equity jurisdiction, Strong, J., said for the majority:

"But when, before these cases, was an injunction ever granted to restrain the commission of a purely personal tort? What chancellor ever asserted he had such power?'

99 88

To this not very conclusive argument, Woodward, C. J., replied: "Courts of equity are accustomed to enjoin to prevent frauds, waste, nuisances, trespasses, obstructions and diversions of water courses, and in numerous other torts. The principle of injunctive relief against a tort is that the inadequacy of the remedy at law is a sufficient equity and will warrant an injunction against the commission or continuance of the wrong. . . . The inadequacy of all remedies at law for infringement of personal liberty, when habeas corpus is suspended, is too plain to be doubted or discussed, and the necessary consequence is that courts of chancery would have jurisdiction. . . . If courts of chancery have not jurisdiction of torts which touch liberty, what are we to say, that property is better guarded with us than liberty? Who is willing to stand on that ground? . . . I would not say that man has more rights in his horse or his house than he has in himself. If equity will restrain torts in respect to lands and goods, much more will it restrain torts in respect to the immensely higher interest - his liberty — when all legal remedies have been taken away."

9 89

Although Kneedler v. Lane turned chiefly upon the constitutional question, these statements are important in that they put each side of the question as well as it has ever been put in the cases. But it should be said that a serious question of policy as to exercise of jurisdiction was involved, which is not present in the ordinary case.

In a note to Chappell v. Stewart, which has frequently been quoted,90 the doctrine of that case is vigorously criticised. The editor says that the proposition announced "taken literally and in its full meaning would make the system of equity suitable only to a semi-savage society which has much respect for property but little for life." He adds:

"Our equity jurisprudence does not quite deserve so severe a reproach. It does, indeed, do much for the protection of personal rights, although it has not been willing to acknowledge the fact, but has persisted in declaring the contrary.”

90 37 L. R. A. 783, discussed in Ex parle Warfield, 40 Tex. Crim. 413, 50 S. W. 933; Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 67 Atl. 97.

To support the latter proposition, the editor puts five classes of cases where, he conceives, equity in truth secures personality, although purporting to secure substance only. These five categories deserve careful examination.

(1) First the editor puts cases of nuisance such as a rifle range, dangerous to life, noise which prevents rest and sleep, and odors or sewage, dangerous to health. It is true that in these cases protection of property does indirectly secure individual interests of personality along with social interests in the general safety and the general health. But in a very real sense the interests secured are interests of substance only. The plaintiff may sue only because he has an estate in the property and is deprived of or injured in his jus utendi. If his nerves are steeled, his ears are deaf, or his nose is indifferent, the members of his household, injured only in their personal rights, will suffer in vain.

(2) Next he puts cases of publication in violation of contract or of trust. These cases bear out his point. For the most part the protection of property, on which they purport to proceed, is no more than a fiction. The theory is that the beneficial interest in the trust res or the contract right is an asset to be protected. But in reality the substantial interest secured is generally one of personality. If it were not for this, especially in the contract cases, the court would be certain to say that there was no substantial interest in the plaintiff to make it worth while for equity to interfere. The true interest secured is brought into equity, as it were, "parasitic" to a merely nominal interest of substance.

91

(3) The cases next cited are those involving private letters, which follow Gee v. Pritchard.9 Here also the editor's point is well taken. Where, as in the cases referred to, the letters have no literary or historical quality and no value as autographs, the property in them is not much more than a fiction. If it were not for the invasion of privacy involved, we may be sure the chancellor would say that plaintiff's interest was too trivial to justify relief in equity.

(4) He next puts the cases where the chancellor acts for the protection of infants. These cases, however, do not seem to be in point. In them the chancellor, representing the king as parens patriae, secures all manner of interests of infants. But he does not act to

91 E. g. Woolsey v. Judd, 4 Duer 379.