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BLACKWOOD'S EDINBURGH MAGAZINE.
THE CHANCELLOR AND THE EDINBURGH REVIEW.
In this Magazine a great deal has set themselves to the consideration already been said, touching the attacks of this very delicate matter-and more to which the Chancellor has been sub- especially to the author of the abovejected in consequence of the procedure mentioned article in the Edinburgh adopted by him in regard to certain re- Review, (Mr Henry Brougham?) cent works of a supposed immoral and As « pamphlets never circulate," libellous tendency. So far as the ge- we may do a service to this new auneral sense and reason of the matter thor by quoting from his production were concerned, we believe the remarks some of those passages, which we think (of Mr Tickler) on the article in the more particularly entitled to the praise Èdinburgh Review for May last, were of distinct and conclusive argument, accepted as sufficiently conclusive. The embodied in clear and temperate lanwriter of those remarks, however, ex guage. We shall suppose our reader cused himself from pursuing the case to have the Edinburgh Reviewer's arinto many of its more technical mie ticle, and that of Mr T. before him on nutiæ, on the ground of his want of his table, and proceed at once to what, skill in the actual authorities of the if these writings have been understood, English courts. An English lawyer of can require no farther preface here. very competent talent and acquirement And first-see how triumphantly has stepped forth to fill up the blank our friend's argument, in column se, thus left; and while it cannot but ex- cond of page 214 of this Magazine for cite some surprize to find how closely August last, is established by this Enge Mr T's views, derived from the exer- lish lawyer at the very outset of his cise of common sense, are identified Tract. with those to which this author's pro- « The first remedy which the proprietor fessional studies have led, and which of a work has, against one who pirates it, the expressed results of those studies is by action at law; a remedy which is establish on an immoveable and un- not,' as the reviewer supposes, without questionable foundation, a lesson of its use, such actions being, in fact, often some iinportance is at the same time brought. It is, however, in many cases given to all those who have with less extremely imperfect. The Court of Chanmodesty, less sagacity, and at least as cery has therefore assumed jurisdiction, little positive knowledge as our friend to lend its more extensive powers to the
• Observations on the Practice of the Court of Chancery, in cases relating to Libellous and Immoral Publications; with Remarks on an Article in the Edinburgh Review for May, 1823. London : Joseph Butterworth and Son, 43, Fleet-Street. 1823.
See also Tickler's Letter on the Edinburgh Review in Blackwood, No. I.XXIX., and his Letter on the Quarterly Review in No. LIII. (July, 1822.) Vol. XIV,
protection of the right which the law has cannot crush the trade of those wbo spegiven, by issuing an injunction to restrain culate in vice and crime, it divests it of the publication. This is one of those in- its chief attractions, by rendering it hastances in which the Court of Chancery zardous and unprofitable. interferes, not upon any of the peculiar doc- “ It is true, that in the consideration trines of equity, but for the purpose of of cases of this sort, the mind may be giving effect to a legal right; upon the embarrassed, by seeing that the defenground that such a right exists, but that dant, himself one of the offending parthe law does not furnish it with an ade- ties, is permitted to urge a defence foundquate remedy. Hence the party calling ed on his own misdeeds, and to exonerate for the exercise of this branch of jurisdic- himself from one charge, by shewing that tion in his favour, must first prove the he is liable to another. The reviewer existence of the legal right, for which he has adopted this objection, talks of the desires protection. If he fail in this defendant being estopped from this line proof, the Court cannot act ; if the proof of argument, and alludes to the maxim, be defective, he must supply what is that a man shall not take advantage of wanting ; if in attempting to establish his own wrong, as if he supposed it to his right, he only inakes out a case in- forbid such a defence.(1) But nothing can volved in doubt, he must: clear away be a more complete perversion of this marim, tlose doubts before he can entitle him- than to apply it to one who insists upon the self to relief. Now there can be no co- criminality of the act, not as conferring any pyright in a work of pernicious tendency; right upon himself, but as TAKING AWAY THE the author or publisher cannot maintain RIGHT OF THE COMPLAINING PARTY. When an action upon it. If, therefore, the work the courts refuse to relieve the plaintiff is found to be of this description, an in- on the ground of the impure origin of his junction cannot be granted; if, upon in- alleged right, it is not out of any favour to spection, it does not appear clear that its the defendant ; it is not because he has ANY character is innocent, it follows that it is right, but because the plaintiff has. NONE. doubtful whether the author or publisher When the plaintiff's title is found defechas any legal right, and while this con tive, the action necessarily falls to the tinues doubtful, the Court of Chancery ground. No farther inquiry as to either will not interfere in his favour; it will party is called for. It is not necessary not give him the benefit of the right to enter upon an investigation of the difwhich he claims, until it is shewn that ferent gradations of their guilt. Whatever he possesses it.
the conduct of the defendant may have " This principle, familiarly expressed been, if the plaintiff has no right to com. by saying that a man shall not take ad- plain of it as an injury to him, a Court vantage of his own wrong, or that one which has only cognizance of civil injuwho seeks relief must come into Courtries must stay its hand. Both parties may with clean hands, is most commonly ex- be liable in another court, and in another emplified in cases arising out of contracts, form of proceeding, to the punishment the subject-matter of which is illegal or due to the offence of which they are immoral ; it holds equally with regard to jointly guilty; but if it appear that the a claim founded upon the publication of defendant, however criminal, has done A libel, or upon any other breach of the no wrong towards the plaintiff, that the law. The law which forbids the act can- plaintiff had no right to be invaded, and not consistently recognize it as conferring no property to be injured, the only quesany civil right; and it wisely judges that tion which the Court is tben competent as it can only prevent crime by visiting to consider is disposed of. It matters it with punishment, and by taking away not, therefore, whether the objection is temptation, one of the most effective raised by the Court or by the defendant modes of keeping men within the line of himself. From whatever quarter it comes, duty, is to prevent them from reaping when it is made apparent, it must prethe advantages which they expect to de- vail. The defendant is of course to exerrive from their offences. It therefore cise his own discretion in his defence, refuses to execute agreements that are and though he cannot be compelled to prohibited; and déclines to assist an au- criminate himself, yet there is no law to thor in the perception of the “unhallow- prevent him from taking whatever libered profits' which he promised himself, ties he pleases with his own character. from libelling his neighbour, or from dis. The probability is, that he does himself seminating immorality or sedition. If it no injustice ; and if he be indifferent to
(1) Page 303.
infamy, he cannot be restrained from an sated by giving him a remedy against the avowal, which, while it frees him from defendant for the wrong done to him in the plaintiff's claim, aggravates the of the interim. But reverse the case : supfence which he has committed, furnishes pose an injunction granted upon a doubtevidence to assist in his prosecution, and ful title ; that those doubts turn out to be insures for him, if convicted, a heavier well founded, and the plaintiff's right is weight of punishment."
chisproved: no reparation can then be made The Edinburgh Reviewer, however, to the defendant for having been deprived, without combatting this doctrine as far perhaps for a long time, of the exercise as regards actions at law, boldly took of his legal rights. It is the act of the his stand on the position that a doubt- Court by which he has suffered ; and he is ful title is enough to entitle a man to therefore without a remedy: he can recocrave an injunction in Chancery. This ver no damages for his loss: he can have was a point on which Mr T. could do no account of the profits which he has been no more than say, that the Edinburgh prevented from making. It is not thereReviewer had merely made an assere fore a matter of surprise that in a doubttion without adducing any proof. But fuil case the Court should rather encounthe present writer comes with different ter the risk of permilting a wrong which is armour. In the first place, he says,
Has the pouer of setting right, than of comthat if the Edinburgh Reviewer be
mitting an injiry which it CANNOT redress. right, all Chancery barristers, and all
In an early case (2) where the right of Chancery solicitors, as well as all Lord
& the University of Oxford to print bibles Chancellors, from
for sale was in question, the Lord Keeper time immemorial
Guildford, though his own opinion inhave been wrong in practice ;-all have clined against them. only directed a trial been combined in a conspiracy for of the right at law. “And though the scourging the claimants before that plaintiffs pressed much for an injunction, court, because all have held the exact
to stay the University printers from goly opposite doctrine. But what is the ing on with the printing bibles, until the reason of the thing?
trial had settled the right, yet the Lord “To consider the principle, upon which Keeper refused to grant it, in regard that injunctions should be applied : it is clear, in case the right should be found with in the first place, that it would be an ex. them, they would by such prohibition re-' tremely strong measure to restrain a per- ceive a prejudice, that he could not com . son from the enjoyment of property, not pensate or make good to them.” “A because it belongs to another, but be doubtful legal title,” said Lord Manscause another is attempting to make out field, (3) “ must be tried at law, before that it is his. That there should be no it can be made the ground of an injunc-' right without a remedy, is an acknow- tion. Injunctions of this kind are rightly ledged truth; it is equally fit that there and properly refused. IN A DOUBTFUL should be no remedy without a right. It CASE, IT WOULD BE INIQUITY TO GRANT , lies upon him who complains to prove THEM : because, if it should come out that his title ; if he has only half proved it, the plaintiff has no legal title, the defendant and thrown uncertainty upon the case, IS INJURED BY THE INJUNCTION, AND CAN the Court is presented with a choice of HAVE NO REPARATION.” difficulties. The defendant may be in. These principles apply with peculiar jured by granting the injunction; the and overwhelming power to cases of plaintiff by withholding it. When these probabilities are balanced, the grounds
patents and copyrights, “ where the upon which the practice of enjoining was
matter in dispute being the privilege introduced no longer apply. A jurisdic
of exclusive sale, to restrain others is tion which has for ils object to stop a mani.
to give the plantiff for the time all that fest wrong, ought not to be exercised in a case
c he is seeking to prove his right to." where it is as likely to commil as to prevent
Above all, in regard to a new book, it injustice. This consideration alone would is evident that to restrain a man from make the Court stand neuter; but there having the benefit of the first popular is another of equal weight. The evil that thirst and curiosity, is often, and almay arise from refusing an injunction the ways may be, to deprive him of everyCourt has the power of remedying: the other thing. Yet if he has been so deprived is without redress. If a plaintiff, unable to in consequence of an injunction, he obtain an injunction, succeeds in esta- can have, as Lord Mansfield says exblishing his claim, the delay is compen- pressly, no reparation.
(2) Hills v. University of Oxford, 1 Vern. 275.
(3) 4 Burr. 2400.
“ There is much plausibility in the ar- terms, in the first book usually put into gument, that, pending the litigation, the the hands of a student of the practice of property should be preserved for the be. courts of equity. (4) The cases decided nefit of both parties. The French sys- upon this ground are numberless. In tem, alluded to by the Reviewer, of im- two upon patents granted by the Crown,(5) pounding the whole impression till the the validity of wbich was questioned, character of the work is determined, in Lord Keeper Guildford declined enjoinother respects highly objectionable,would, ing, till they had been tried at law : he by imposing the same terms on all, ac- could not, he said, “ grant an injunction complish this purpose fairly. But it would in any case but where a man has a plain be a singular mode of preserving the pro- right to be quieted in it.'(6) The rule perty, to tie up the hands of the one party, of requiring a legal right to be made clear and allow the other to waste and exhaust it by a trial at law, before granting an inat pleasure ; to suffer it to be rendered va- junction upon it, was frequently acted lueless, and to put the profit into the prockets on in the time of Lord Hardwick.(7) of hin, whose right to it is as doublful as that In a doubtful case, (8) between two paof his opponent.
tentees, Lord Northington refused to in“ It may be said, indeed, that a rule terfere by injunction. In two cases, (9) partly originating in consideration for the in which the question of the existence of defendant's interest, ought not to be ap- a perpetual copyright was discussed, he plied to one, who having pirated a book, refused to enjoin till after trial, stating alleges it to be of immoral tendency that the point was of too much difficulty But it is for the criminal courts to deal and consequence to be decided without with such conduct according to its de- the opinion of the judges. He pursued merits. Infamous as the party may be, the the same course in the great case of Milcivil tribunals have no power to punish him; lar v. Taylor :(10) after the decision of the they cannot look at the criminality of an Court of King's Bench, the injunction act, except when an application for their was granted. (il) Lord Thurlow, with assistance is founded upon it. If a man characteristic vigour of expression, has thinks fit to deal in libels, the Court of Chan- thus laid down the rule : • The power cery is not the Court to interfere with his the Court exercises to grant injunctions business, and any approach to a power so is great, and therefore it is cautious how dangerous and unconstitutional, cannot be it exercises so large a power; and I will too much deprecated. If where an injunc- follow my predecessors. I will not say tion has been granted to restrain the sale that the Court will not grant an injuncof a book, it turns out to be libellous, and tion upon particular circumstances, but I therefore not the subject of property, the am far from thinking, that when a right Court of Chancery will have been guilty is doubtful, the Court will grant an inof an improper encroachment on the au- junction. This case arises upon the conthority of other courts ; it will have une struction of an Act of Parliament, which justly inflicted on the defendant, a punish- is doubtful, whether the defendants have ment in addition to that provided by the law; a right to make a cut or not; yet as it is and it will with equal injustice have reward not clear the defendants have not exered the plaintiff for the offence he has com cised the power given by the Act, I will milled.
not interfere. Therefore take nothing “ To revert to the general proposition, by the motion.' (12)—The decisions of that a doubtful legal right is not sufficient the present Lord Chancellor might perto entitie a plaintiff to an injunction; it haps be excepted to by the Reviewer, but will be useful to notice a few of the au. they will at least shew that he is mistaken thorities bearing upon it, which have in supposing his Lordship to be an auescaped the search of the reviewer. He thority against himself. In refusing an would have found it laid down in express injunction in a case wbich occurred in the
(4) “ Where the title is doubtful, or disputed, as between devisee and heir at law, or otherwise, an injunction will not be granted.” Maddock's Chancery Practice, vol. I, p. 138, 2d edition.
(5) Anon. I Vern. 120. East India Company v. Sandys, ibid, 127. (6) 1. Vern. 120. (7) Whitchurch v. Hide, 2 Atk. 391. Lord Tenham v. Herbert, ibid. 483. Anon. 2 Ves. sen. 414.
(8) Baskett v. Cunningham, 2 Eden, 137.
(1l) See 4 Bur. 2408.
first year after his elevation to the seals, guess is turned into something very Lord Eldon said, “ The Court ought not different from a guess, by the passage to grant an injunction unless there is po- we are about to quote, in reference to sitive evidence of actual title.' (13) In the fiat of the law officers of the crown, the first case (14) in which the subject &c. In treating of the differences of the copyright of libellous publications which exist between the cases of a pacame under his consideration, another tent and the copyright, he thus expresquestion was also raised, depending on ses himself : the legal effect of an agreement, and in " They differ in this, that a patent perfect conformity with the usual prin
must receive the fiat of the law officers ciple, the injunction was refused till that
of the crown, whose duty it is to reject it if point should be tried at law. In cases of improper, and that it is open to any one, trespass, to which, in modern times, the entering a caveat, to contest the grant remedy of injunction has been extended, before it passes the great seal. These the rule of requiring a clear legal title is previous sanctions, though far from being eyen more strictly observed. “The Court, conclusive, afford some presumption in says the Lord Chancellor, ‘has certainly favour of its validity, and perhaps may proceeded to extend injunctions to tres- have had some influence, together with pass, but I do not recollect it ever grant-: the respect always paid to usage and long ed on that head, where the fact of the possession, in establisbing the practice, plaintiff's title to the property on which by which, when there has been for a cona waste was committed, was disputed by siderable time, exclusive enjoyment on the answer.' (15) Thus where the title
the part of a patentee, the Court of Chanto land, depending on the validity of a
cery, though the legal validity of his pawill, is disputed between the heir and de
tent may be doubtful, continues his posvisee, an injunction to restrain the party session, by granting an injunction pendin possession, insisting on his right, from ing the litigation. This is done only cutting timber, will not be granted. (16)
t be granted. (16) when there has been what the Lord ChanThe implicit deference of an Edinburgh cellor terms, ' a reasonably long and undisReviewer is due to the authority of Lord
puted possession under colour of the patent ;' Erskine. His Lordship's view of the na
an exclusive possession of some durature of the title, which justifies an injunc
tion.' In such cases, it is thought less tion, may be collected from the case of hazardous to extend for a short time longGurney v. Longman, (17) where the de- er, the exclusive enjoyment which the defendant was restrained from publishing fendants have acquiesced in, than to althe trial of Lord Melville, the House of low it at once to be put an end to, when it Lords having conferred the privilege of may turn out to have been well founded. printing it upon the plaintiff. He would
“ The want of strict analogy between not, he said, have granted the injunction, the possession of a corporeal subject, and unless he had had a strong impression, that of an exclusive privilege, and the that he should continue of the same opi. difficulty of fixing with precision wbat nion. In this case,' he proceeded, if length of enjoyment shall be deemed sufthere had been no direct precedent, I ficient, have led to doubts as to the proshould not have granted the injunction, priety of this practice. (19) But whether notwithstanding the strong practice of well founded or not, it is limited to those the House of Lords, without taking the patents under which there has been a conopinion of a Court of Law; according to tinued enjoyment. With recent patents, the authoritie's upon which I insisted in unconfirmed by time, THE PRACTICE IS THB the case of Bruce v. Bruce, that the Lord
REVERSE. “When the patent,' says the Chancellor ought not, unless a clear legal Lord Chancellor, “is but of yesterday, title is established, to grant an injunc. and upon an application being made for tion.'” (18)
an injunction, it is endeavoured to be What follows, however, in regard to shewn in opposition to it, that there is patents, is still more deserving of the no good specification, or otherwise that closest attention. Our friend Mr T. the patent ought not to have been grantasked “if they could shew any protec- ed, the Court will not, from its own notion of a patent poison ?" This shrewd tions respecting the matter in dispute,
(13) Davies v. Leo, 6 Ves. 787. (14) Walcott v. Walker, 7 Ves. 1. (15) 19 Ves. 147. (16) 19 Ves. 155. Smith v. Collyer, 8 Ves. 89. See Hanson v. Gardiner, 7 Ves. 305. (17) 13 Ves. 493.
(18) 13 Ves. 507. (19) See Evans's Collection of Statutes, vol. i1. p. 9.