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Younger Committee on Privacy (England), 8
Yuldo Mishima, 141-42
Zimmerman, Diane, 83,144
“Zone of privacy,” 3

The Right to Privacy
Author(s): Samuel D. Warren and Louis D. Brandeis
Source: Harvard Law Review , Dec. 15, 1890, Vol. 4, No. 5 (Dec. 15, 1890), pp. 193-220

Published by: The Harvard Law Review Association
Stable URL: https://www.jstor.org/stable/1321160
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and
extend access to Harvard Law Review
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HARVYARD
LAW REVIEW.
VOL. IV. DECEMBER I5, 1890. NO. 5.
THE RIGHT TO PRIVACY.
"It could be done only on principles of private justice, moral fitness,
and public convenience, which, when applied to a new subject, make
common law without a precedent; much more when rece:ved and
approved by usage."
WILLES, J., in Millar v. Taylor, 4 Burr. 2303, 2312.
THAT the individual shall have full protection in person and
in property is a principle as old as the common law; but
it has been found necessary from time to time to define anew the
exact nature and extent of such protection. Political, social, and
economic changes entail the recognition of new rights, and the
common law, in its eternal youth, grows to meet the demands of
society. Thus, in very early times, the law gave a remedy only
for physical interference with life and property, for trespasses vi
et arrmis. Then the "right to life" served only to protect the
subject from battery in its various forms; liberty meant freedom
from actual restraint ; and the right to property secured to the in-
dividual his lands and his cattle. Later,there came a recognition of
man's spiritual nature, of his feelings and his intellect. Gradually
the scope of these legal rights broadened; and now the right to
life has come to mean the right to enjoy life,-the right to be let
alone ; the right to liberty secures the exercise of extensive civil
privilegces; and the term " property " has grown to comprise every
form of lpossession -intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the
protection against actual bodily injury was extended to prohibit
mere attempts to do such injury; that is, the putting another in
This content downloaded from
209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00
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194 HAR HARD LA WV RE VIE W.
fear of such injury. From the action of battery grew that of as-
sault.1 Much later there came a qualified protection of the indi-
vidual against offensive noises and odors, against dust and smoke,
and excessive vibration. The law of nuisance was developed.2 So
regard for human emotions soon extended the scope of personal
immunity beyond the body of the individual. His reputation, the
standing among his fellow-men, was considered, and the law of
slander and libel arose.3 Man's family relations became a part of
the legal conception of his life, and -the alienation of a wife's affec-
tions was held remediable.4 Occasionally the law halted,- as in
its refusal to recognize the intrusion by seduction upon the 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 inj ury to the parents' feelings, an ade-
quate remedy was ordinarily afforded.5 Similar to the expansion
of the rigrht 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
'Year Book, Lib. Ass., folio 99, pl. 6b (1348 or I349), appears to be the first reported
case where damages were recovered for a civil assault.
2 These nuisances are technically injuries to property; but the recognition of the
right to have property free from interference by such nuisances involves also a recogni-
tion of the value of human sensations.
8 Year Book, Lib. Ass., folio I77, pL I9 (1356), (2 Finl. Reeves Eng. Law, 395)
seems to be the earliest reported case of an action for slander.
4 Winsmore v. Greenbank, Willes, 577 (I 745).
6 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, J., in Lavery v. Crooke, 52 Wis. 612, 623 (188I).
First the fiction of constructive service was invented; Martin v. Payne, 9 John. 387
(I8I2). 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. I I9
(i8oo); Aiidrews v. Askey, 8C. & P. 7 (I837); Phillips v. Hoyle, 4 Gray, 568 (i855);
Phelin v. Kenderdine, 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. 9 , the suffering of the parent in case of physical injury to the child. Fleming-
ton v. Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R. R. Co., IO La. Ann. 33
(I835); Covington Street Ry. Co. v. Packer, 9 Bush, 455 (1872).
6 "The notion of Mr. Justice Yates that nothing is property which cannot be ear-
marked 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.

Younger Committee on Privacy (England), 8

Yuldo Mishima, 141-42

Zimmerman, Diane, 83,144

“Zone of privacy,” 3

The Right to Privacy

Author(s): Samuel D. Warren and Louis D. Brandeis

Source: Harvard Law Review , Dec. 15, 1890, Vol. 4, No. 5 (Dec. 15, 1890), pp. 193-220

Published by: The Harvard Law Review Association

Stable URL: https://www.jstor.org/stable/1321160

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide

range of content in a trusted digital archive. We use information technology and tools to increase productivity and

facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at

https://about.jstor.org/terms

The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and

extend access to Harvard Law Review

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

HARVYARD

LAW REVIEW.

VOL. IV. DECEMBER I5, 1890. NO. 5.

THE RIGHT TO PRIVACY.

"It could be done only on principles of private justice, moral fitness,

and public convenience, which, when applied to a new subject, make

common law without a precedent; much more when rece:ved and

approved by usage."

WILLES, J., in Millar v. Taylor, 4 Burr. 2303, 2312.

THAT the individual shall have full protection in person and

in property is a principle as old as the common law; but

it has been found necessary from time to time to define anew the

exact nature and extent of such protection. Political, social, and

economic changes entail the recognition of new rights, and the

common law, in its eternal youth, grows to meet the demands of

society. Thus, in very early times, the law gave a remedy only

for physical interference with life and property, for trespasses vi

et arrmis. Then the "right to life" served only to protect the

subject from battery in its various forms; liberty meant freedom

from actual restraint ; and the right to property secured to the in-

dividual his lands and his cattle. Later,there came a recognition of

man's spiritual nature, of his feelings and his intellect. Gradually

the scope of these legal rights broadened; and now the right to

life has come to mean the right to enjoy life,-the right to be let

alone ; the right to liberty secures the exercise of extensive civil

privilegces; and the term " property " has grown to comprise every

form of lpossession -intangible, as well as tangible.

Thus, with the recognition of the legal value of sensations, the

protection against actual bodily injury was extended to prohibit

mere attempts to do such injury; that is, the putting another in

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

194 HAR HARD LA WV RE VIE W.

fear of such injury. From the action of battery grew that of as-

sault.1 Much later there came a qualified protection of the indi-

vidual against offensive noises and odors, against dust and smoke,

and excessive vibration. The law of nuisance was developed.2 So

regard for human emotions soon extended the scope of personal

immunity beyond the body of the individual. His reputation, the

standing among his fellow-men, was considered, and the law of

slander and libel arose.3 Man's family relations became a part of

the legal conception of his life, and -the alienation of a wife's affec-

tions was held remediable.4 Occasionally the law halted,- as in

its refusal to recognize the intrusion by seduction upon the 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 inj ury to the parents' feelings, an ade-

quate remedy was ordinarily afforded.5 Similar to the expansion

of the rigrht 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

'Year Book, Lib. Ass., folio 99, pl. 6b (1348 or I349), appears to be the first reported

case where damages were recovered for a civil assault.

2 These nuisances are technically injuries to property; but the recognition of the

right to have property free from interference by such nuisances involves also a recogni-

tion of the value of human sensations.

8 Year Book, Lib. Ass., folio I77, pL I9 (1356), (2 Finl. Reeves Eng. Law, 395)

seems to be the earliest reported case of an action for slander.

4 Winsmore v. Greenbank, Willes, 577 (I 745).

6 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, J., in Lavery v. Crooke, 52 Wis. 612, 623 (188I).

First the fiction of constructive service was invented; Martin v. Payne, 9 John. 387

(I8I2). 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. I I9

(i8oo); Aiidrews v. Askey, 8C. & P. 7 (I837); Phillips v. Hoyle, 4 Gray, 568 (i855);

Phelin v. Kenderdine, 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. 9 , the suffering of the parent in case of physical injury to the child. Fleming-

ton v. Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R. R. Co., IO La. Ann. 33

(I835); Covington Street Ry. Co. v. Packer, 9 Bush, 455 (1872).

6 "The notion of Mr. Justice Yates that nothing is property which cannot be ear-

marked 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.