that publications may be of such a nature that the author can maintain no action at law, it is not the business of this court, even upon the submission in the answer (defendants had admitted the piracy of one edition) to decree either an injunction or an account of the profit of works of such a nature, that the author can maintain no action at law for the invasion of that which he calls his property, but which the policy of the law will not suffer him to consider his property. If this publication is an innocent one, I apprehend that I am authorized by decided cases to say, that--whether the author did or did not intend to make a profit by its publication-he has a right to an injunction to prevent any other person from publishing it." "If, on the other hand, this is not an innocent publication, in such a sense that an action would not lie in case of its having been published by the author and subsequently pirated, I apprehend that this court will not grant an injunction." And the same learned judge observes elsewhere: "This court interferes by injunction; but not in cases where an action cannot be maintained."

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22. And not only will equity refuse protection to such works of harmful and immoral tendency, but it will go further, and decline to take any cognizance of them whatever, treating them precisely as if they did not exist. So, when one pirates and prints a book which should never have been printed at all, no protection will be given from, or action for, the piracy.'

but no evidence was produced to that effect. The lord chief justice observed that, if such evidence had been produced, he should have held it fit to be received as against the claim made by the plaintiff.

'Lawrence v. Smith, 1 Jacob. 472.

2 Walcott v. Walker, 7 Ves. 1; Southey v. Sherwood, 2

The effect of chancery refusing an injunction, may be, indeed, to render still more unlimited the piracy; but, although such would probably be the case, it is clear that chancery is powerless in the matter.' "For," said Lord Eldon, "this court has no jurisdiction in matters of crime."" It has been said that, if

Meriv. 435; Clark v. Freeman, 11 Beav. 117, 119; and vid. remarks of Cairns, J., in Maxwell v. Hogg, L. R., 2 Ch., app. 310; 16 L. T. N. S. 130; 36 L. J., 438 Ch.; and of Malin, V. C., in Springhead Spinning Co. v. Riley, L. R., 6 Eq. 561; 19 L. T. N. S. 65; 37 L. J., 889 Ch.

1 Lawrence v. Smith, Jacob, 471.

'Lord Chancellor Macclesfield, in Burnett v. Chetwood (cited from MS. in note to Southey v. Sherwood, 2 Meriv.. 438), seems to have taken a different view of the province of courts of equity in dealing with books of this character, hold-ing "that the court of chancery had a superintendence over all books, and might, in a summary way, restrain the printing or publishing of any that contained reflections on religion or morality," and granting an injunction to restrain the publication of the translations 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 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." Lord Ellenborough, in dealing with the case of a libelous picture, in Du Bost v. Beresford, 2 Camp. 511, said that, "upon an application to the lord chancellor, he would have granted an injunction against its exhibition." This dictum of Lord Ellenborough seems to have excited the editor of Howell's State Trials, who 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

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.

In the much quoted case of Southey v. Sherwood,' where the poet Southey sought to restrain the publication of his poem, "Wat Tyler," which had lain for twenty-three years in manuscript in the printer's hands, until he himself had forgotten its existence, the same rule prevailed, and the poem being held of too libelous a nature to merit protection, an injunction was refused.'

23. There seems, however, to be one exception, if it be an exception, to this rule: and that is, if it appears that the publication will tend to the destruction

to except the proceedings of Lord Ellenborough's predecessors-Scroggs, and his associates-in the case of Henry Care, in which case 'ordinatum est quod liber intitulat,' The Weekly Packet of Advice from Rome, or the History of Popery, 'non ulterius imprimatur vel publicatum per aliquam personam quamcunque.' The editor might have found another precedent for what so surprised him, in Burnett v. Chetwood, cited ante. 12 Meriv. 435.

2 To the same effect was the ruling in Stockdale v. Onwhyn (7 D. & R. 625). In that case an action was brought in the court of king's bench, in 1826, to protect a certain volume, entitled, "Memoirs of Harriet Wilson," which, on examination, appeared to be a history of the life and amours of a courtesan, containing anecdotes either libeling or ridiculing the various persons with whom she professed to have communication. "The ground of this action," said Holroyd, J., "if any, must be that the defendant has worked an injury to the plaintiff's exclusive right of publishing the book in question. Now, it is criminal in him to publish such a book. Then he has no right to publish it; and having no right, he has sustained no injury, and has no ground of action.'

or deterioration of other property, courts of equity will for the protection of such other property, take jurisdiction to restrain the publication.'

Neither will equity regard as innocent, and interfere to protect obscene books, or theatrical exhibitions, immoral and prurient in their character, even if copyrighted according to the prescribed formula. And so where a spectacle styled the "Black Rook” was shown unmistakably to be an infringement upon a previously composed spectacle, "The Black Crook," it appearing that the latter was a notoriously immoral and prurient production, equity refused its protection.

So it will be seen further on, when we come to treat of personal libels by newspapers, and their right to comment upon matters of public interest, that the law will not regard as innocent an undue haste to publish or to comment upon charges made against a citizen before they are proved, though the editors or newspaper proprietors will be allowed every opportunity to show an absence of malice or a misinformation as to the authority of the proceeding."

And so also a publication in a suit reflecting on a court engaged in trying a suit, or upon the witnesses, parties, or jurors, will be construed as non-innocent, or, as this particular form of non-innocence is called, “a contempt of court.'

1

Springfield Spinning Co. v. Riley, L. R. 551; 19 L. T. N. S. 64; 37 L. J., 889 Ch.

' Martinetti v. Maguire, Deady's R. 216. See this case treated supra in the chapter on dramatic copyright.

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* Ackerman v. Jones, 37 N. Y. Sup. Ct. (J. & S.) 42.

Hollingsworth v. Duane, Wall. 77, 102; Bronson's Case, 12 Johns. (N. Y.) 460; S. P. Respublica v. Passmore, 3 Yeates (Pa.), 408; Same v. Oswald, I Dal. 319. But see Exp. Hickey, 12 Miss. (4 Sm. & M.) 751; Stuart v. People, 4 Ill. (3 Scam.) 395; Matter of Bergh, 16 Abb. Pr. N. S. post, "Contempt of

court."

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24. In England, works "subversive of religious truth," "hostile to natural and revealed religion," or "impugning the doctrine of the immateriality of the soul," have been declared to be the reverse of innocent.' To the latter extent it is hardly to be expected that the law of innocence would be carried in this country, where the largest liberty of thought and expression. is supposed to obtain.

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25. "To say religion is a cheat," said the court in one case, "is to desolve all those obligations whereby civil societies are preserved. Christianity is parcel of the laws of England, and therefore, to reproach the

1The cases of Lawrence v. Smith (7 Jacob. 471), and of Murray v. Benlow (cited in Shortt L. Lit., p. 8), exhibit the extent to which the question of innocence in a work may be carried. In the former case, Lord Eldon dissolved an injunction to hinder the publication of a pirated edition of certain “Lectures on Physiology, Zoology, and the Natural History of Man," on the ground that the lectures could not be the subject of copyright, as they contained several passages hostile to natural and revealed religion, impugning the doctrines of the immateriality and immortality of the soul. "Looking, said he, "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 Scripture; considering that the law does not protect 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." In Murray v. Benlow (February, 1822), the same lord chancellor refused to enjoin the publication of a pirated edition of Lord Byron's "Cain," on the ground of a doubt whether the poem was not intended to bring into discredit that portion of Scripture to which it relates. In 1823, again, Leach, V. C., dissolved an injunction to prevent publication of pirated portions of Lord Byron's. "Don Juan," on similar grounds.

21 Rex v. Taylor, Vent. 293; 3 Keb. Rep. 607; vid. 4 Bl. Com. 287. This view of the matter is put broadly by Michaelis,. quoted 2 Stark. (2nd edit.) 131. He says: "On God's account, then, punishments for blasphemies are not necessary; but