Right to Privacy

honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit,* was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded.5 Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it ; and then there opened the wide realm of intangible property, in the products and processes of the mind,6 as works of literature and art, 7 goodwill, 8 trade secrets, and trademarks.9

This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the "right to be let alone."10

*Translation: "For the loss of services."

4 Winsmore v. Greenbank, Willes, 577 (1745).

5 Loss of service is the gist of the action; but it has been said that "we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages." Cassoday, K., in Lavery v. Crooke, 52 Wis. 612, 623 (1881). First the fiction of constructive service was invented; Martin v. Paine, 9 John. 387 (1812). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford v. McKowl, 3 Esp. 1992 (1800); Andrews v. Askey, 8 C. & P. 7 (1837); Philips v. Hoyle, 4 Gray, 568 (1855); Phelin v. Kenderline, 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent's person, for ordinarily mere injury to parental feelings is not an element of damage, e.g., the suffering of the parent in case of physical injury to the child. Flemington v. Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R.R. Co., 10 La. Ann. 33 (1855); Covington Street Ry. Col. v. Packer, 9 Bush (1872).

6 "The notion of Mr. Justice Yates that nothing is property which cannot be earmarked and recovered in detinue or trover, may be true in an early stage of society, when property is in its simple form, and the remedies for violation of it also simple, but is not true in a more civilized state, when the relations of life and the interests arising there from are complicated." Erle, J., in Jefferys v. Boosey, 4 H. L. C. 815, 869 (1854).

7 Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright, 54, 61.

8 Gibblett v. Read, 9 Mod. 459 (1743), is probably the first recognition of goodwill as property.

9 Hogg v. Kirby, 8 Ves. 215 (1803). As late as 1742 Lord Hardwicke refused to treat a trade-mark as property for infringement upon which an injunction could be granted. Blanchard v. Hill, 2 Atk. 484.

10 Cooley on Torts, 2d ed., p. 29. [1888] [Also see a later edition, Thomas M. Cooley, A Treatise on the Law of Torts: Students' Edition (New York: Callaghan & Co., 1907) by John Lewis, 192-195.]