In this Magazine a great deal has already been said, touching the attacks to which the Chancellor has been subjected in consequence of the procedure adopted by him in regard to certain recent works of a supposed immoral and libellous tendency. So far as the general sense and reason of the matter were concerned, we believe the remarks (of Mr Tickler) on the article in the Edinburgh Review for May last, were accepted as sufficiently conclusive. The writer of those remarks, however, excused himself from pursuing the case into many of its more technical minutiæ, on the ground of his want of skill in the actual authorities of the English courts. An English lawyer of very competent talent and acquirement has stepped forth to fill up the blank thus left; and while it cannot but excite some surprize to find how closely Mr T's views, derived from the exercise of common sense, are identified with those to which this author's professional studies have led, and which the expressed results of those studies establish on an immoveable and unquestionable foundation, a lesson of some importance is at the same time given to all those who have with less modesty, less sagacity, and at least as little positive knowledge as our friend

set themselves to the consideration of this very delicate matter-and more especially to the author of the abovementioned article in the Edinburgh Review, (Mr Henry Brougham?) As "

pamphlets never circulate," we may do a service to this new author by quoting from his production some of those passages, which we think more particularly entitled to the praise of distinct and conclusive argument, embodied in clear and temperate language. We shall suppose our reader to have the Edinburgh Reviewer's article, and that of Mr T. before him on his table, and proceed at once to what, if these writings have been understood, can require no farther preface here.

And first-see how triumphantly our friend's argument, in column second of page 214 of this Magazine for August last, is established by this English lawyer at the very outset of his Tract.

"The first remedy which the proprietor of a work has, against one who pirates it, is by action at law; a remedy which is not, as the reviewer supposes, without its use, such actions being, in fact, often brought. It is, however, in many cases extremely imperfect. The Court of Chancery has therefore assumed jurisdiction, to lend its more extensive powers to the

VOL. XIV.

4 K

infamy, he cannot be restrained from an avowal, which, while it frees him from the plaintiff's claim, aggravates the of fence which he has committed, furnishes evidence to assist in his prosecution, and insures for him, if convicted, a heavier weight of punishment."

The Edinburgh Reviewer, however, without combatting this doctrine as far as regards actions at law, boldly took his stand on the position that a doubtful title is enough to entitle a man to crave an injunction in Chancery. This was a point on which Mr T. could do no more than say, that the Edinburgh Reviewer had merely made an assertion without adducing any proof. But the present writer comes with different In the first place, he says, that if the Edinburgh Reviewer be right, all Chancery barristers, and all Chancery solicitors, as well as all Lord Chancellors, from time immemorial have been wrong in practice ;—all have been combined in a conspiracy for scourging the claimants before that court, because all have held the exactly opposite doctrine. But what is the reason of the thing?

armour.

"To consider the principle, upon which injunctions should be applied: it is clear, in the first place, that it would be an extremely strong measure to restrain a person from the enjoyment of property, not because it belongs to another, but because another is attempting to make out that it is his. That there should be no right without a remedy, is an acknowledged truth; it is equally fit that there should be no remedy without a right. It lies upon him who complains to prove his title; if he has only half proved it, and thrown uncertainty upon the case, the Court is presented with a choice of difficulties. The defendant may be injured by granting the injunction; the plaintiff by withholding it. When these probabilities are balanced, the grounds upon which the practice of enjoining was introduced no longer apply. A jurisdiction which has for us object to stop a manifest wrong, ought not to be exercised in a case where it is as likely to commit as to prevent injustice. This consideration alone would make the Court stand neuter; but there is another of equal weight: The evil that may arise from refusing an injunction the Court has the power of remedying: the other is without redress. If a plaintiff, unable to obtain an injunction, succeeds in establishing his claim, the delay is compen

:

sated by giving him a remedy against the defendant for the wrong done to him in the interim. But reverse the case: sup. pose an injunction granted upon a doubtful title; that those doubts turn out to be well founded, and the plaintiff's right is disproved no reparation can then be made to the defendant for having been deprived, perhaps for a long time, of the exercise of his legal rights. It is the act of the Court by which he has suffered; and he is therefore without a remedy: he can recover no damages for his loss: he can have no account of the profits which he has been prevented from making. It is not therefore a matter of surprise that in a doubtful case the Court should rather encounter the risk of permitting a wrong which it HAS the power of setting right, than of committing an injury which it CANNOT redress. In an early case (2) where the right of the University of Oxford to print bibles for sale was in question, the Lord Keeper Guildford, though his own opinion inclined against them, only directed a trial of the right at law. "And though the plaintiffs pressed much for an injunction, to stay the University printers from going on with the printing bibles, until the trial had settled the right, yet the Lord Keeper refused to grant it, in regard that in case the right should be found with them, they would by such prohibition receive a prejudice, that he could not compensate or make good to them." doubtful legal title," said Lord Mansfield, (3) "must be tried at law, before it can be made the ground of an injunction. Injunctions of this kind are rightly and properly refused. IN A DOUBTFUL CASE, IT WOULD BE INIQUITY TO GRANT THEM: because, if it should come out that the plaintiff has no legal title, the defendant

"A

IS INJURED BY THE INJUNCTION, AND CAN HAVE NO REPARATION."

These principles apply with peculiar and overwhelming power to cases of matter in dispute being the privilege patents and copyrights, "where the of exclusive sale, to restrain others is to give the plantiff for the time all that he is seeking to prove his right_to." Above all, in regard to a new book, it is evident that to restrain a man from having the benefit of the first popular thirst and curiosity, is often, and always may be, to deprive him of everything. Yet if he has been so deprived in consequence of an injunction, he can have, as Lord Mansfield says expressly, no reparation.

(3) 4 Burr. 2400.

"There is much plausibility in the argument, that, pending the litigation, the property should be preserved for the benefit of both parties. The French system, alluded to by the Reviewer, of impounding the whole impression till the character of the work is determined, in other respects highly objectionable,would, by imposing the same terms on all, accomplish this purpose fairly. But it would be a singular mode of preserving the property, to tie up the hands of the one party, and allow the other to waste and exhaust it at pleasure; to suffer it to be rendered valueless, and to put the profit into the pockets of him, whose right to it is as doubtful as that of his opponent.

"It may be said, indeed, that a rule partly originating in consideration for the defendant's interest, ought not to be applied to one, who having pirated a book, alleges it to be of immoral tendency. But it is for the criminal courts to deal with such conduct according to its demerits. Infamous as the party may be, the civil tribunals have no power to punish him; they cannot look at the criminality of an act, except when an application for their assistance is founded upon it. If a man thinks fit to deal in libels, the Court of Chancery is not the Court to interfere with his business, and any approach to a power so dangerous and unconstitutional, cannot be too much deprecated. If where an injunction has been granted to restrain the sale of a book, it turns out to be libellous, and therefore not the subject of property, the Court of Chancery will have been guilty of an improper encroachment on the authority of other courts; it will have unjustly inflicted on the defendant, a punishment in addition to that provided by the law; and it will with equal injustice have rewarded the plaintiff for the offence he has committed.

"To revert to the general proposition, that a doubtful legal right is not sufficient to entitle a plaintiff to an injunction; it will be useful to notice a few of the authorities bearing upon it, which have escaped the search of the reviewer. He would have found it laid down in express

terms, in the first book usually put into the hands of a student of the practice of courts of equity. (4) The cases decided upon this ground are numberless. In two upon patents granted by the Crown,(5) the validity of which was questioned, Lord Keeper Guildford declined enjoining, till they had been tried at law: he could not, he said, grant an injunction in any case but where a man has a plain right to be quieted in it.'(6) The rule of requiring a legal right to be made clear by a trial at law, before granting an injunction upon it, was frequently acted on in the time of Lord Hardwick.(7) In a doubtful case, (8) between two patentees, Lord Northington refused to interfere by injunction. In two cases, (9) in which the question of the existence of a perpetual copyright was discussed, he refused to enjoin till after trial, stating that the point was of too much difficulty and consequence to be decided without the opinion of the judges. He pursued the same course in the great case of Millar v. Taylor :(10) after the decision of the Court of King's Bench, the injunction was granted. (11) Lord Thurlow, with characteristic vigour of expression, has thus laid down the rule: The power the Court exercises to grant injunctions is great, and therefore it is cautious how it exercises so large a power; and I will follow my predecessors. I will not say that the Court will not grant an injunction upon particular circumstances, but I am far from thinking, that when a right is doubtful, the Court will grant an injunction. This case arises upon the construction of an Act of Parliament, which is doubtful, whether the defendants have a right to make a cut or not; yet as it is not clear the defendants have not exercised the power given by the Act, I will not interfere. Therefore take nothing by the motion.' (12)—The decisions of the present Lord Chancellor might perhaps be excepted to by the Reviewer, but they will at least shew that he is mistaken in supposing his Lordship to be an authority against himself. In refusing an injunction in a case which occurred in the

(11) See 4 Bur. 2408.