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famous cases have been before the courts of late years in which all the essential matters affecting this important and inherent personal right were exhaustively studied and discussed by learned and eminent counsel and judges, and yet in each instance the court's decision was based upon some little fact which closed the door to authoritative precedent.
The well-known case of Schuyler vs. Curtis in New York engaged the attention of the courts and the public for a number of years, from 1891 until last December, when it was finally decided in the Court of Appeals at Albany. An effort had been made to secure a public subscription for the purpose of exhibiting a statue of Mrs. Mary M. Hamilton Schuyler, then deceased, at and during the World's Fair, Chicago, and afterwards in New York. The relatives of the deceased lady sought to prevent the act, and the means thereto, as invasions of the right of privacy. They represented the family of Mrs. Schuyler in the most direct heirship. The court in which snit was began issued its order forbidding the proposed action. The preliminary order was twice continued upon reasons which Judge Morgan J. O'Brien at Chambers in the first, and Judges Van Brunt and Barrett at General Term in the second, instance held to have unequivocally established the right in the plaintiff to prevent intrusion upon the privacy of the memory of their kinswoman. Upon trial in November, 1892, that order was made permanent. In December, 1895, this judgment, the entire case having been exhaustively and carefully argued by able counsel upon both sides, was reversed by the Court of Appeals, in spite of an earnest, clear, and logical dissenting opinion by Judge John Clinton Gray, which he began with the words : “I most emphatically dissent from the decision of this court that there was no ground shown in this case for the equitable relief which was granted below. That a precisely analogous case may not have arisen heretofore, in which the peculiar power of a Court of Equity to grant relief by way of injunction has been exercised, furnishes no reason against the assumption of jurisdiction.” The decision of the majority of the judges, delivered by Judge Peckham, proceeded upon the assumption as a principle that “whatever rights of privacy any individual may have died with him.” Judge Peckham says: “Whatever right of privacy Mrs. Schuyler had died with her. ... The right which survived, however extensive or limited,
was a right pertaining to the living only. . . . That right may, in some cases, be itself violated by improperly interfering with the character or memory of a deceased relative. ... A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living to protect their feelings and to prevent a violation of their own rights in the character and memory of the deceased.” The opinion then goes on to review the matters' of fact in order to reach a conclusion that the supposed injury to plaintiff's feelings was merely fanciful, and, though it does not alter the words, that it was one of those trifles for which the law cares not. In regard to this, Judge Gray says: “However opinions may differ with respect to the substantial nature of the injury to the feelings of Mrs. Schuyler's relatives, we have the finding” (the settlement of fact by the trial court) “ that it was in fact caused, and we should not say that it was merely fanciful.”
And so in this case the opportunity of giving us a light upon the obscurity of the right of privacy was avoided.
The English judges were called upon to act in this matter about the same time that the case above mentioned was pending. Their decision, though not referred to in Schuyler vs. Curtis, was rendered in 1894. A homicide was committed upon an estate called Ardlamont in Scotland, for which a young man named Monson was arrested and tried. The circumstances of the affair, the social standing of the victim and the accused, and the difficulty of obtaining any adequate reason for the strange and sudden death, caused a widespread sensation. The occurrence became and still is known as “ The Ardlamont Mystery.” The Scotch jury returned a verdict, “Not proven.” This proceeding, not tolerated in English or American law, left the defendant neither condemned nor vindicated, and consequently but enhanced the morbid and insatiable curiosity of the public. The Tussaud Company, Limited, of London, successor of the celebrated Madame Tussaud, conducting an exhibition of waxworks, prepared and caused to be publicly displayed at their establishment in London a gruesome imaginary representation of the tragedy in what is termed a “ Chamber of Horrors.” In connection with this plastic solution of “ The Ardlamont Mystery,” they exhibited a waxwork figure of Mr. Monson, not in the awful group in the
“ Chamber of Horrors,” but in gentlemanlike and dignified semblance, in an adjoining passage, through which the public was obliged to walk before or after witnessing the invented portrayal of the crime with which Mr. Monson had been accused. Mr. Monson sought to prevent this exhibition as a breach of his right of privacy, by appeal to the equity power of the English bench. The notoriety of the original cause of the litigation, as may well be imagined, drew to this case the most widespread attention. Even from far-away India there came expression of the hope that this at last would give chance for the settlement of the question of the right of personal privacy. Some of the most capable jurists of the bar were engaged in the argument and presentation of the case, and all the elements of the important right involved were most carefully and learnedly elucidated. But here again expectation was doomed. Some one found an “if” lurking in an unconsidered corner, and dragged it out to destroy the rigor of that powerful helper of the law, the equity branch. One Louis Tus-. saud, who bore some relation to the defendants and conducted a similar business, claimed that Monson had given him permission to produce and exhibit the portraiture in question, and that a consideration for the privilege had passed between them. The existence of this claim was enough to stay the hand of equity. “If” there had been such a contract, to believe which the Court seems to have had reason, equity could not assist Mr. Monson to relieve himself from the consequences of his own act.
Perhaps the most signal recognition of the right of privacy is the spirit which underlies our positively declared and strictly enforced rule of law that no priest, lawyer, or physician can be compelled to testify as to matters confided to him in his professional capacity by another. This is called the rule of confidential communication, and is not limited to merely voluntary information, but covers all knowledge of a person or his affairs obtained in consequence of the professional relation. To the students of English law, it will not be difficult to refer the first implanting of this sturdy timber in the soil of our jurisprudence to the devious and cunning methods employed by the prosecutors at the trial of the Jesuit priests accused of complicity in the Gunpowder Plot, in the year 1606, to force or betray them into violation of their sacred duty towards the inviolability of the confessional. It was for avoidance of the questions pushed upon them for this
unworthy purpose that they were stigmatized as “ equivocators," and the name of their society set down with ineffectual solemnity in dictionaries of the English tongue as a synonym for that dubiously polite label for one of the seven degrees of the lie. We have not been so very many years free from the odium of this uncharitable wresting of the law to wrong-doing. In spite of the fact that the rebellion of the colonies set up a new order of English law upon the hither shores of the Atlantic, for the perpetual fosterage of freedom, it was found necessary, even under the liberal provisions of the Constitution and laws of the United States, to call the power of equity into the forum of conscience in order to protect a priest in his refusal to answer on the witness-stand about matters affecting his professional and confidential relations towards a person accused of crime. In this case the best minds of the New York bar were engaged in the task of establishing firmly and for all time the guaranty of this much of the sacred right of privacy. That assurance is now established beyond all cavil by the statute law of every state in the Union.
The celebrated English Chancellor Lord Eldon took occasion, while reviewing the case of Wyatt vs. Wilson (1820), to note as an analogy the supposed case : “If one of the late king's physicians had kept a diary of what he heard and saw, the Court” (of Equity) “ would not, in the king's lifetime, have permitted him to print and publish it." While there is a hint in this reference to the unfortunate sovereign of the application of the rule forbidding the doing of things which are contrary to public policy, it is still true that in the case before the Chancellor the right of privacy was of such importance that he seems to have deemed it the foundation of the more familiar public safety. Why not? If the right of privacy exist, it belongs to all persons, artificial as well as natural. The state, in the workings of its diplomatic and police relations, in the regulation of its revenue, the councils of its lawmakers, and the deliberations of its juries, demands and is accorded the closest secrecy. Who dare intrude upon a meeting of cabinet ministers or publish their views without permission? Who ventures to betray the confidence of the secret service ? Executive sessions of the legislative body are held with closed doors and should be remembered only with closed lips. The servants of justice, sworn to hear witnesses to disputed fact and weigh the value of their testimony, are not even themselves permitted to disclose the privacy of the juryroom. Shame and contempt fall instantly upon the foolish violator of these public privaciesirrefutable proof that the reason lies in a law of humanity's nature. Nor does the same character of spontaneous proof fail in certain cases where private right to be let alone is grossly outraged. Only a little while ago the heart of the world trembled with detestation at the act of an English doctor-an act done in sheer and wanton outrage of the confidence of a patient. The grievance of this case was the betrayal to others by the defendant's physician of knowledge obtained by him in a professional relation towards the plaintiff, & married woman.
The illustrated journalism now prevalent finds its finest achievements in the publication of photographs surreptitiously taken. The value does not seem to lie in the fact that the photographs are of notabilities, but that they have been taken by stealth when the subjects were unconscious of the purpose of the person manipulating the camera. Indeed, it is a well-known fact that at least one of the newspapers of New York keeps a photographer busy in the streets of the metropolis taking
snap shots” at every person who appears to be of consequence. These are used at once, or filed away for use when occasion arises. Now, such .practices are unquestionably 'invasions of the right of privacy; but we are told by the courts that the victims of such practices may not restrain by injunction the publication of photographs so taken, but that the remedy lies in a recovery for damages. This is no remedy at all, for the chances would be that some demagogue of a judge would declare that the hurt was but fanciful and too inappreciable for a merely earthly tribunal to estimate.
If, therefore, we cannot find, either among the cases which make up our rules of decision or upon the pages of the general laws, a positive declaration that all things which concern the private life, habits, acts, and relations of the citizen, and bear no necessary relation to his fitness for the public office toward which he is a candidate, or to his ability as a teacher, preacher, or professor in science or art, or any bearing upon acts done in any of these capacities, shall be subject to publication, in print or otherwise, only upon the consent of the person within whose right of privacy they lie, then the time has come when the legislatures must act so as to make the fundamental law as to these particular