EDITORIAL DEPARTMENT decided by the jury. When their verdict was rendered, it disposed of the issue of fact which was raised by the pleadings, and then judgment was rendered upon the whole record." "When the statute was passed allowing bills of exceptions, and when public sentiment seemed to call for a more lax system of plead ing, the merits of the controversy between the parties ceased to appear upon the record, except in so far as they were incorporated therein by a bill of exceptions. When they came to appear in this form, the appellate courts at an early date abandoned their original and proper function of rendering judgment upon the whole record, relegated the decision of the questions of fact arising upon this record, to the court of first instance, and therefore, instead of deciding the cause finally upon the writ of error, remanded it for a new trial. Out of this English practice the practice in common law cases in the United States developed. Our courts, however, have become more technical than the English courts of the eighteenth century. Anyone who will, for example, examine Burrow's Reports, will find that new trials were then granted by the King's Bench much less frequently than they now are by most American appellate courts." "The reason for the disposition of courts to grant new trials in cases tried before a jury, probably rests upon the impression that under the Constitution of the United States and the Constitutions of most of the states, there is some peculiar sacredness in a trial by jury. No doubt the right of trial by jury is guaranteed by these Constitutions. But where is there any Constitutional guarantee of the right to several trials by jury? That right, as has been shown, did not exist at com mon law." TORTS (Right of Privacy) "THE Right of Privacy and its Relations to the Law of Libel" is the title of an article by Elbridge L. Adams in the American Law Review for January (V. 39, p. 37). The author relates the original suggestion of this right in a legal periodical, its subsequent discussion in legal and other journals and the attempt to enforce it in courts with special reference to the recent Roberson case in the Court of Appeals of New York of which he says:
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"What the court decided, and all that it decided, was that there is no su"ch thing within the history or principles of jurisprudence, as a right of privacy which will restrain an un authorized publication which is merely of fensive to the feelings and which does not in jure the property or the reputation. "The New York Court of last resort, like the Federal court, and the courts of Michigan and of England, was unwilling to take upon itself the responsibility of extending the law of libel beyond the well fixed limitations which several centuries of judicial pronouncements have determined. It turned the whole matter over to the legislature, and there it must finally be adjusted. The practical question therefore seems to be: How far may the legislature, within the limitations of the Constitution, restrain the growing license of the press? "It will probably not be seriously questioned that the American newspaper press, with a few honorable exceptions, has far over-stepped the bounds of decency and propriety in its betrayal by word and by picture of the private life of individuals." In this connection he gives an interesting summary of the recent Pennsylvania statute which has received such vigorous condemna tion from the newspapers of the whole country showing that "there does not seem to be any thing in the law which creates new obligations except the requirement of the publication of the names of the owners or proprietors and of the managing editor in every issue." He says that the wildest misrepresentations of the nature and effect of the law have been made in the very papers which denounced the New York Court of Appeals for its decision in the Roberson case. In conclusion he says:— "It is evident, therefore, that there is a growing demand on the part of society for some protection in law against the violation of the right of privacy. The idea is an attrac tive one to the social reformer, but to the law maker, who seeks to embody the idea into a statute, the subject is surrounded with serious difficulties. On the one hand, he must see to it that such a statute is general and is made to operate upon all, and to protect all, alike. Advertisers, newspapers and periodicals of all kinds, must be brought within its purview. On the other hand, he must avoid conflict
