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law-whether statutory or unwritten-which is of an immoral tendency or contrary to sound policy. (a)

When a contract is said to be void and incapable of being enforced as "opposed to sound or public policy," this is in accordance with the principle of law that "no subject can lawfully do that which has a tendency to be injurious to the public or against the public good-which may be termed, as it sometimes has been, the policy of the law, or 'public policy' in relation to the administration of the law."(b) The legal maxim on the subject is, Nihil quod est inconveniens est licitum. (c)

A work, then, may lack the character of innocence by being opposed to any law, either unwritten or statutory, by being of an immoral tendency (a test, as applied, of a very comprehensive character) or by being contrary to what is called sound or public policy. If it offends against innocence in any of these respects no action at law would lie to enforce any alleged right with reference to it, and, as a consequence, no court of equity would interfere to hinder any infringement of such alleged right.

The opinion of Lord Chief Justice Eyre, already referred to(d) by Lord Eldon, was expressed by him on the trial of an action brought by Dr. Priestley against a hundred to recover damages sustained by him in consequence of the riotous proceedings of a mob at Birmingham. Amongst other property alleged to have been destroyed, and for the loss of which he claimed compensation, were certain unpublished MSS. It was alleged, by way of defence, on behalf of the hundred, that the plaintiff was in the habit of publishing works injurious to the government of the State, but no evidence was produced in support of that allegation. The Lord Chief Justice observed that if such evidence had been produced, he should have held it was fit to be received as against the claim made by the plaintiff. (e)

In Walcot v. Walker, (f) it was held that a court of equity would not act, either by giving an injunction or an account, even upon a submission in the defendant's answer, in the case of an unauthorised publication of a literary work of such a nature that an action at law could not be maintained in respect of it. "It is no answer," said Lord Eldon," that the defendants are as criminal. It is the duty of the court to know whether an action at law would lie; for if not, the

(a) Broom's Com. p. 354, 3rd edit.

(b) Per Lord Truro in Egerton v. Brownlow (4 H. L. Cas. 196). (c) Co. Litt. 66a. (d) Ante, p. 3. (e) Cited 2 Meriv. 437. (ƒ) 7 Ves. 1.

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court ought not to give an account of the unhallowed profits of libellous publications. At present I am in total ignorance CHAPTER IL of the nature of this work, and whether the plaintiff can have a property in it or not. . . . Before I uphold any injunction I will see these publications and determine upon the nature of them, whether there is question enough to send to law as to the property in those copies; for, if not, I will not act upon the submission in the answer. If, upon inspection, the work appears innocent, I will act upon that submission; if criminal, I will not act at all; and if doubtful, I will send that question to law."

Where the work is of a criminal character the Court of Chancery, not being a court of criminal jurisdiction, simply refuses to interfere in any way. It punishes the author of a criminal, libellous, or immoral production no otherwise than by denying him any assistance in the assertion of a right of property in his work, or in the attempt to hinder the piracy of it. Courts of equity stand quite neutral. "The Court does not interfere in the way of injunction to punish or to prevent injuries done to the character of individuals; but it leaves the party to his remedy at law."(a) One Lord Chancellor (Macclesfield), indeed, seems to have taken a different and much more lofty view of the province of courts of equity in dealing with books of the character above mentioned, being of opinion "that the Court of Chancery had a superintendency over all books, and might in a summary way restrain the printing or publishing any that contained reflections on religion or morality;" (b) and his lordship granted an injunction to restrain the publication of a translation of two Latin works ("Archæologia Philosophica" and "De Statu Mortuorum et Resurgentium ") written by Dr. Burnett, on the sole ground that "inasmuch as the book contained to his (the Chancellor's) knowledge (he having read it in his study) strange notions intended by the author to be concealed from the vulgar in the Latin language-in which language it could not do much hurt, the learned being better able to judge of it-it was proper to grant an injunction to the printing and publishing it in English." And Lord Ellenborough, in dealing with the case of a libellous picture

(a) Per Lord Eldon (Southey v. Sherwood, 2 Meriv. 438); see also the opinion of Lord Langdale, M.R., in Clark v. Freeman (11 Beav. 117, 119), but as to the decision in the latter case, see the remarks of Lord Cairns in Maxwell v. Hogg (L. Rep. 2 Ch. App. 310; 16 L. T. N. S. 130; 36 L.J. 433, Ch.), and of Malins, V.C. in Springhead Spinning Company V. Riley (L. Rep. 6 Eq. 561; 19 L. T. N. S. 64; 57 L. J. 889, Ch). (b) Burnett v. Chetwood, cited from a manuscript volume of cases, in note, by the learned reporter to Southey v. Sherwood (ubi supra).

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said, that "upon an application to the Lord Chancellor, he CHAPTER II. Would have granted an injunction against its exhibition." (a) These opinions with regard to the extent of the jurisdiction of courts of equity in dealing with non-innocent publications have, as the cases already cited show, been long since abandoned, and courts of equity now simply refuse to interfere in the matter at all. Lord Eldon, in Lawrence v. Smith, (b) in express words repudiates the jurisdiction asserted by Lord Macclesfield. In the judgment pronounced by him in that case, he says: "As this Court has no jurisdiction in matters of crime, (c) it has been said that if the injunction be refused it has the effect of increasing the number of copies. The answer to that is, I have nothing to do with it as a crime. The question relates only to a civil right of property. If the one party has that right, the other must not invade it; if he has not that right the Court cannot give him the consequences that belong to it." There are other means of punishing the authors of criminal and libellous works, which will be treated of in a subsequent portion of this work. (d)

In Southey v. Sherwood (e) a motion was made on the part of the poet Southey to restrain the defendants from printing or publishing a poem called "Wat Tyler," which had been composed by the plaintiff about twenty-three years previously, and had lain unpublished during the whole of that period in the hands of the bookseller to whom Southey had first sent it for his perusal and consideration as to the advisability of

(a) Du Bost v. Beresford (2 Camp. 511). Referring to this dictum of Lord Ellenborough, the editor of Howell's State Trials says (vol. xx. p. 799): "I have been informed by very high authority, that the promulgation of this doctrine relating to the Lord Chancellor's injunction excited great astonishment in the minds of all the practitioners in the Courts of Equity, and I had apprehended that this must have happened; since, I believe there is not to be found in the books any decision or any dictum, posterior to the days of the Star Chamber, from which such doctrine can be deduced, either directly, or by inference, or analogy; unless, indeed, we are to except the proceedings of Lord Ellenborough's predecessor Scroggs, and his associates, in the case of Henry Care, in which case 'Ordinatum est quòd liber intitulat' The Weekly Packet of Advice from Rome, or the History of Popery, non ulterius imprimatur vel publicetur per aliquam personam quamcunque."" The learned editor does not appear to have known of the decision of Lord Macclesfield in Burnett v. Chetwood, above cited.

(b) Jac. 471. Vide post, pp. 7, 8.

(c) If a publication, which is criminal, tends also to the destruction or deterioration of property, the Court of Chancery has, according to the decision of Malins, V.C., in The Springhead Spinning Company v. Riley (L. Rep. 6 Eq. 551; 19 L. T. N. S. 64; 37 L. J. 889, Ch.), jurisdiction to restrain the publication by injunction.

(d.) See the chapters on 66 Libel," post.

(e) 2 Meriv. 435.

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publishing it. On the part of the defendant it was contended that the poem in question, from its libellous tendency, was of CHAPTER II. such a nature that there could be no copyright in it; and the case of Dr. Priestley and that of Walcot v. Walker were referred to. Lord Eldon, in refusing the injunction, stated that he remained of the same opinion as that which he entertained in deciding the case of Walcot v. Walker. "It is very true," he proceeded, "that in some cases it may operate so as to multiply copies of mischievous publications by the refusal of the Court to interfere by restraining them; but to this my answer is, that, sitting here as a judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties, except as relates to their civil interests; and if the publication be mischievous, either on the part of the author or of the bookseller, it is not my business to interfere with it." (a)

One of the most important cases decided on this subject. came before Lord Eldon in 1822. In Lawrence v. Smith, (b) the Lord Chancellor dissolved an injunction which had been obtained upon an ex parte motion, to hinder the publication of a pirated edition of certain "Lectures on Physiology,

(a) An American writer (Curtis) on Copyright urges some weighty objections to the doctrine laid down by Lord Eldon in the above case. In the case of Dr. Priestley the owner of the manuscript was seeking damages for the destruction of what might have been the source of pecuniary profit, and the case goes only to this, that a work existing in manuscript may be of such a character that the author cannot make lawful profits by ita publication; and in this sense it may be said that there can be no property in such a work. But this cannot justify the very different doctrine that the author of an unpublished manuscript of a character not innocent or doubtful cannot have the interposition of a court of equity to restrain its publication by a person who is about to publish it against his will. There is a wide difference between seeking protection for a published work of a non-innocent character and the mere assertion of a right to possess and control, to publish or not to publish one's own manuscript. There are two kinds or degrees of property in a literary work, one consisting in the right to take the profits of a book when published, the other in the right to the exclusive possession and control of a manuscript, or the right to publish or withhold from publication altogether. In no case has it been considered that the author's right depends on his intention to publish and to make a profit; but the cases proceed upon the ground of a right of property, by which seems to be intended a right to the possession and control of the manuscript, and to publish or to withhold it from publication; and this holds equally in the case of a non-innocent and an innocent work. When, therefore, an author has Hot published, or does not intend to publish a work existing in manuscript, but, on the contrary, desires and intends to withhold it from publication, the question as to its innocence does not arise, because that question affects only so much of his right of property as consists in the night to take the profits of the publication.

(6) Jac. 471.

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Zoology, and the Natural History of Man," which had been delivered by the plaintiff at the College of Surgeons, and afterwards published by him. In support of the motion to dissolve the injunction, it was urged that the nature and general tendency of the work were such, that it could not be the subject of copyright, as it contained several passages hostile to natural and revealed religion, impugning the doctrines of the immateriality and immortality of the soul. And on this ground Lord Eldon refused to continue the injunction, and left the plaintiff to bring his action at law, if he considered that he had any chance of succeeding there. “Looking,” said his lordship, "at the general tenor of the work, and at many particular parts of it, recollecting that the immortality of the soul is one of the doctrines of the Scriptures, considering that the law does not give protection to those who contradict the Scriptures, and entertaining a doubt I think a rational doubt-whether this book does not violate that law, I cannot continue the injunction. The plaintiff may bring an action, and when that is decided he may apply again.' As to the injunction originally granted, ex parte, Lord Eldon said, "I take it for granted that when the motion for the injunction was made, it was opened as quite of course; nothing probably was said as to the general nature of the work, or of any part of it; for we must look not only at the general tenor, but at the different parts; and the question is to be decided, not merely by seeing what is said of materialism, of the immortality of the soul, and of the Scriptures, but by looking at the different parts and inquiring whether there be any which deny, or which appear to deny, the truth of Scripture, or which raises a fair question for a court of law to determine whether they do or do not deny it."

Two later instances of the application of the same doctrine are mentioned in Mr. Jacob's note to the case last cited. In Murray v. Benbow (February, 1822), the Lord Chancellor (Eldon) refused an injunction to restrain the defendant from publishing a pirated edition of Lord Byron's poem "Cain," on the ground of a doubt whether the poem was not intended to bring into discredit that portion of Scripture history to which it relates. And in 1823 ViceChancellor Sir John Leach, on similar principles, dissolved an injunction which had been obtained to restrain the publication of a pirated edition of a portion of the poem of "Don Juan." In this case, however, the Vice-Chancellor ordered that the defendant should keep an account. (a)

(a) See also Hime v. Dale, referred to 2 Camp. 27.