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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.t
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.'
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 ; notwith-
standing 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.JJ.) 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
* 2 Swanston 413.
f Fleming v. Newton, 1 H.L. Cases 363, 376, per Lord Cottenham, Ch.
# Clark v. Freeman, 11 Beav. 1:12; and see The Emperor of Austria v. Day and Another, 3 De Gex F. and J. 238, per Lord Campbell, Ch.; and Mulkern v. Ward, L.R. 13 Eq. 619, per Wickens, V.-C.
§ Springhead Spinning Co. v. Riley, L.R. 6 Eq. 551; Dixon v. Holden, L.R. 7 Eq. 488.
restrain the publication of a libel as such, even if it is
injurious to property.*
The decision in the last-mentioned case was in the year
1873. A few years later (1878) Sir Geo. Jessel, M.R., in
the case of Beddow v. Beddow, 9 Ch. D. 92, expressed the
somewhat startling obiter dictum that in his opinion juris-
diction was given to the Common Law Courts by the
C. L. P. Act, 1854, to grant injunctions to restrain the
publication of libels. And, in a subsequent case in the
Court of Appeal, before Jessel, M.R., Baggally and Lindley,
L.J.J., it was held that the Court has power to restrain by
interlocutory injunction the publication of a libel, however
“atrocious ” it may be, and though injurious only to
character and reputation, a jurisdiction (said the learned
M.R.) conferred on the Common Law Courts by the
Common Law Procedure Act, 1854, and by the Judicature
Act, 1873, whereby all jurisdiction which was vested in
any of the Courts therein mentioned (including the Common
Law Courts) was transferred to the High Court of Justice,
of which the Chancery Division forms part, and that by
section 25, sub-section 8, an injunction may be granted by
an interlocutory order of the Court, in all cases in which it
shall appear to the Court to be “just or convenient.”
“That being so" (continues the learned Judge), “in my
opinion, having regard to these two Acts of Parliament, I
have unlimited power to grant an injunction in any case
when it would be right or just to do so, according to settled
legal reasons or on any legal settled principle.”f
And now let us refer to the sections of the Com. L. P.
Act, 1854, which it is said, conferred the jurisdiction in
question upon the Courts of Common Law.
By section 79 it was enacted that—“In all cases of
breach of contract or other injury, where the party injured
* Prudential Assurance Co. v. Knott, L.R. 10 Ch. App. 142.
+ Quartz Hill Consolidated Gold Mining Co. v. Beall, 20 Ch. D. 501.
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 of a 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
By section 81—“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 after judgment, to apply ex parte to
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 had jurisdiction 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
* i.e., The Commissioners appointed to inquire into the process, practice, etc., in the Superior Courts at Westminster.