« PreviousContinue »
liberty of the Press, it is proposed to examine the Statutes and authorities upon which it is based. The Jurisdiction in question is said to have been conferred, first by the C. L. P. Act, 1854, and next by the Judicature Act, 1873. Prior to and apart from those Statutes, it is abundantly clear that no such jurisdiction existed, either at Common Law or in Equity. That the Court has power to grant injunctions to restrain the publication of matter injurious to property, trade, or manufactures, has long been established. The ground upon which such jurisdiction is founded being, in the protection of property; and, therefore, where a publication, whether libellous or not, is calculated to inflict some immediate wrongful and substantial injury to the property or manufactures of the Plaintiff, it may be restrained by interlocutory injunction; but libellous matter, injurious only to character and reputation, is not within the principle of the cases upon which that jurisdiction is founded. The principle established, by authorities the highest known to the law, is, that the Court may restrain, by injunction, a publication on the ground that it is injurious to property, but not on the ground that it is a libel. Whether libel or not, the Court has no jurisdiction to determine; nor whether, if privileged, it was published maliciously; nor whether, if true, its publication was justifiable; as those are all questions of fact to be found, not by the Court, but by a Jury. The Court of Chancery had no cognizance of libels unless they were contempts of that Court, as by an abuse of its proceedings." The publication of a libel was said, by Lord Chancellor Eldon, to be a crime, and “the Court of Chancery has no jurisdiction to prevent the commission of
* See per Lord Chancellor Hardwicke, 2 Atkyns 469.
crimes/’* And it was held in a Scottish case, on appeal to the House of Lords, that a jury is appointed by Statute as the proper tribunal for the trial of injuries to the person by libel or defamation; and the liberty of the Press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private. But if the publication is to be anticipated and prevented by the intervention of the Court, the jurisdiction over libels is taken from the jury, and the right of unrestricted publication is destroyed.'l'
And it was also held by Lord Langdale, M.R., that the Court of Chancery had no jurisdiction to restrain the publication of libellous advertisements, unless it was shewn that they were injurious to property.I
Notwithstanding these authorities, it was ruled by Malins, V.-C., in two cases, that although Courts of Equity have no jurisdiction to prevent the commission of acts on the ground merely that they are criminal, yet that they might restrain such as tended to the destruction or to the deterioration of the value of property, whether consisting of money or of professional reputation; notwithstanding that they were also of a criminal nature and punishable as a statutable offence.§
In a subsequent case before the Court of Appeal (Lord Cairns, Ch., and james and Mellish, L.]].) both those cases were expressly overruled, as being at variance with the settled practice and principles of the Court of Chancery; and it was held, that the Court had no jurisdiction to
restrain the publication of a libel as such, even if it is
* Prudential Assurance Co. v. Knott, L.R. 10 Ch. App. 142.
is entitled to maintain and has brought an action, he may in like case and manner as hereinbefore provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract or other injury, or the committal of any breach of contract or injury ofa like kind arising out of the same contract, or relating to the same property or right; and he may also in the same action include a claim for damages or other redress.”
By section 8r—“ The proceedings in such action shall be the same, as nearly as may be, and subject to the like control, as the proceedings in an action to obtain a mandamus under the provisions hereinbefore contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and in case of disobedience such writ of injunction may be enforced by attachment by the Court, or when such Courts shall not be sitting, by a judge.”
Section 82 enacted, that it should be lawful "for the Plaintiff at any time after the commencement of the action, and whether before or afterjudgment, to apply ex pane t0 the Court or a judge for the writ of injunction.
The object of these sections was, to facilitate the mode of proceeding in the Common Law Courts in those cases in which, prior to the C. L. P. Act, it was necessary in order to obtain complete relief, to have recourse to a Court of Equity: so that, where previously to the C. L. P. Act, a Court of Equity hadjurisdiction to grant an Injunction a Court of Common Law was thereby empowered to do so. That those enactments were never intended to be used for the purpose of issuing writs of injunction to restrain the publication of libels is obvious, from the fact that no such were ever issued.
Now, if a jurisdiction such as that recently held to have been conferred by the C. L. P. Act, was so conferred, it is very remarkable that it was never once exercised during the twenty years or more in which that Act was in full operation, by and before the actual framers of it* (viz.), Sir John Jervis, C.J., Sir Alexander Cockburn (afterwards Chief Justice), Martin and Bramwell (afterwards Barons of the Court of Exchequer) and Willes (afterwards one of the Judges of the Court of Common Pleas), sitting day by day administering the law and procedure under that Act, and yet not a single case is to be found in the books, nor in the Records of any of the Courts, of the granting of an injunction (either interlocutory or otherwise) to restrain the publication of a libel. There are indeed reports of cases which go far to negative the idea of any such extension of jurisdiction beyond that then possessed by the Courts of Equity. Jervis, C.J., said in the case of Gittins v. Symes, 24 L.J. C.P. 48 (which was an ex parte application under those sections of the Act for an injunction in an action for infringement of a patent) :“ On cause being shewn, we can give such directions as a Court of Equity would do.” And Lord Campbell, C.J., said, in the case of Benson v. Paull, 2 Jur. N.S. 425, 25 L.J. Q.B. 274, “ It could hardly have been the intention of the Legislature to give the Courts of Common Law a jurisdiction much more extensive than the Courts of Equity have ever exercised.” And again, in the same case, “it never could have been the intention to confer a power on the Courts of Common Law which they could not satisfactorily exercise.” So that it appears from these and other decisions, that the intention of the Legislature was, that as regards the operation of those sections of the C. L. P. Act, injunctions should only be granted where a