Page:The Green Bag (1889–1914), Volume 09.pdf/489

450 cannot be that by death all protection to the reputation of the dead, and the feelings of the living in connection with the dead has been absolutely lost. . . But it is probably the first time in the history of the world that the audacious claim which is here presented has ever been advanced."

This ruling, however, was reversed by the court of appeals (147 N. Y. 434; 49 Am. St. Rep. 671), the court remarking: "Whatever the rights of a relative may be, they are not, in such a case as this, rights which once belonged to the deceased, and which a relative can enforce in her behalf and in a mere representative capacity, as, for instance, an executor or administrator, in regard to the assets of a deceased. It is not a question of what right of privacy Mrs. Schuyler had in her lifetime. The plaintiff does not represent that right. Whatever right of privacy Mrs. Schuyler had died with her. Death deprives us all of rights in the legal sense of that term, and, when Mrs. Schuyler died, her own individual right of privacy, whatever it may have been, expired at the same time. The right which survived (however extensive or limited) was a right pertaining to the living only. It is the right of privacy of the living which it is sought to enforce here. That right may, in some cases, be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living and not that of the dead which is recognized." The court observe obiter: "If the defendants had projected such a work in the lifetime of Mrs. Schuyler, it would perhaps have been a violation of her in dividual right of privacy, because it might be contended that she had never occupied such a position towards the public as would have authorized such action by anyone so long as it was in opposition to her wishes." This was affirmed in the United States Supreme Court. So it seems even a private woman may be subject to the annoyance of expecting a posthumous public statue of herself to be set up in a gown ridiculously out of fashion. And it has been decided that: The picture or photograph of a public person, such as a great inventor, may lawfully be published in a newspaper, magazine, or book, if a copy can be obtained without breach of contract or violation of confidence. Corliss v. E. W. Valker & Co., 57 Fed. Rep. 434; 64 ibid. 280; 31 L. R. A. 283.

Another exception sometimes made by the legislatures, if not by the courts, to the inviolability of the body, is in regard to vaccination. It has sometimes been enacted that the community should be vaccinated in order to prevent the rise or spread of contagion from small-pox. This seems a rather tyrannical interference with the person, but it was defended on the grounds which justify the blowing up or pulling down of houses to prevent the spread of conflagration. The right has been very strenuously denounced, and even forcibly resisted. No case has come in question in this country involving the right of the citizen to resist the vaccination of his own body where the provisions of the statute had been precisely complied with. In England the public authorities may order a child to be vaccinated. Reg. v. Justices, L. R. 17; Q. B. 191, and other cases cited in notes, 25 L. R. A. 152. In this country it was early held that a tax to pay the expenses of vaccinating the inhabitants of a town was valid. Hazen v. Strong, 2 Vt. 427, and it has been held that a school board may exclude pupils who refuse to be vaccinated. Duffield v. Williamsport School District, 162 Pa. St. 476; 25 L. R. A. 152. So a statute authorizing such actions by school boards is valid. Bissell v. Davison, 65 Conn. 183; 29 L. R. A. 251; Abeel v. Clark, 84 Cal. 226. If a statute authorizes vaccination only of persons infected or exposed, it confers no authority to vaccinate or quarantine an express proprietor on the ground that his business carries danger of infection. Re Smith, 146 N. Y. 68; 28 L. R. A. 820.