21 June 2019

Nottidge v Prince

In Nottidge v Prince [1860] 2 Giff. 245, a fascinating mid-Victorian religious cult dispute noted in an earlier post, the Court stated
 This bill was filed by Ralph Clarke Nottidge of Newton Stowmarket, in the county of Suffolk, as administrator of his sister, Louisa Jane Nottidge against Henry James Prince, the principal of the Agapemone, near Bridgwater, in order to obtain the transfer from the Defendant to the Plaintiff of two sums of three per cent. consolidated annuities, amounting together to the sum of £5728, 7s. 7d., which had been transferred by the said Louisa Jane Nottidge to the Defendant, and the dividends thereon since August 1845.
In December 1845 Louisa Jane Nottidge, whose fortune was now in question, was induced to leave her mother’s house, and went to reside at Charlwich, in a cottage occupied by Prince’s wife, and her mother, having received information of where she was residing and with whom, requested her son, the brother of the lady, and her son-in-law, Mr. Ripley, to endeavour to rescue her daughter from the hands of the defendant and his associates. Mr Nottidge and Mr. Ripley accordingly proceeded with a police officer and carried off the lady, and removed her to Mr. Ripley’s house: in Woburn Place, where every effort was made to persuade her of the folly and impropriety of the course she had been pursuing, but in vain; she persisted in declaring that Prince was the Almighty in the form of a man, and had the power of conferring immortality, and that she could not leave him. At length, under medical advice, she was placed in an asylum kept by a Mr. Stillwell, at Hillington in Middlesex. 
In order to make her confinement there as little irksome as possible the proprietor of the establishment, Mr. Stillwell used to allow her to go about unattended, on a solemn promise that she would not attempt clandestinely to escape from the establishment. Notwithstanding this engagement in January 1848 she disappeared for two days, and a watch having been placed at the station of the Great Western Railway, she was intercepted there in the company of Cobbe, a member of the Agapemone, and after some resistance on his part restored to the asylum. A series of applications to the Lunacy Commissioners was then commenced and the matter was investigated, when the Commissioners made the following report, Dr. Turner dissenting, and ordered her to be released from confinement, and placed the following reasons on the minutes:- 
‘Reasons. The board having received and read the two special reports made to them by the Commissioners who visited Miss Nottidge under the 76th section of the statute, and considering, 
--- First, that Miss Nottidge has now been consigned as a lunatic patient at Moorcroft House for upwards of seventeen months. - 
-- Secondly, that no material improvement has taken place in her mental condition, and that the extraordinary and irrational notions on the subject of religion, which the Commissioners regard as delusions irreconcilable in her case with soundness of mind, remain unabated. 
--- Thirdly, that, excepting these delusions, Miss Nottidge has not exhibited, so far as Dr, Stillwell or the visiting Commissioners can discover, any indications of mental insanity, and has not shewn any incompetence to manage her property, or any tendency to maniacal excitement or violence, while her general behaviour, conversation and manners have, in all other respects, been calm and rational. 
--- Fourthly, that the delusions of Miss Nottidge are not likely, in the judgment of the visiting Commissioners, who are confirmed in their conclusion by the opinion of Dr Stillwell, to be removed or diminished by further treatment in a lunatic asylum, and do not appear to be of such a nature as to render her dangerous to herself or others, or incapable of taking care of herself and her affairs. 
---- Lastly, that the bodily health of Miss Nottidge has been latterly giving way, and, as there is mueh reason to apprehend, might be seriously injured by the prolongation of her confinement. 
Immediately after her discharge on the 17th of May from confinement she was met by Thomas, another member of the society, with whom she proceeded to Prince’s broker in London, in order to transfer the stock into Prince’s name. Being unable, however, to give the particulars of the stock which were required, the transfer was not made on that occasion but on the 30th of June she transferred the whole of the stock standing in her name, and which formed her whole fortune, into Frince’s name. 
Shortly after her release she brought two actions, one against her brother, Mr E. P. Nottidge, for false imprisonment, and the other against Mr. Ripley, to recover the sum of
£271 which he had deducted from monies belonging to her in his hands, for the expenses in the asylum; she recovered in the latter action the amount claimed and costs, and in the former a verdict for £50 damages, chiefly, as the Plaintiff alleged, in consequence of Thomas preventing his wife, who was Miss Nottidge’s sister, giving evidence, by addressing to her the following letter :- 
The Agapemone, Nov. 2, 1848. Agnes Whilst I thought you followed your unhappy course quietly, I did not feel disposed to interfere with you ; but since it has come to my knowledge that you have spoken wickedly of God’s holy truth, and declared gross and scandalous lies of those I most honour, love and esteem, I am resolved to adopt a different course towards you. Now wretched is your condition! Given up to your own wicked heart, you love and make a lie, and drink in as sweet food for your malice the vilest and most disgusting scandal, Shame on you! it is out of the abundance of your own carnal heart that your mouth speaketh. Oh, Agnes what have you lost! However, I write merely to inform you of my determination concerning you~. God is, I know Him, deep, pure, holy, gentle love; I am His, and He is mine; you are mine, and I am resolved to use the authority God has given me to put a stop to your lying slanders and for this purpose I can and will compel you to live where and how I please, and subject to my and authority. Through God’s pure love to me I have hitherto yielded to you the greatest indulgence, and you have abused the liberty and independence I trusted you with, as you have abused your other blessings. I have, therefore, felt the necessity of making you aware that f can and will direct your life, and this I will cause you to know by my actions, and not only by words. Should you write again, or speak so knowingly contrary to my wishes and to the truth, I will immediately remove your residence, and take the child under my own eye, and superintend the expenditure of the money for God’s glory. I do not know that, under any circumstances I should, look over your gross and selfish abuse of my forbearance towards you. Concerning the child, learn that I will do with it as God shalt guide me--God who is love, holy, undefiled love but who could wither the pride and independence of your heart in one moment. As to my immediate conduct towards you personally it will depend on yourself, for be sure I will do what I may deem good after this warning without giving you any further notice. But beyond Conception by the knowledge of God, in His pure, holy and unchanging truth, I abide. Brother Thomas” 
Miss L. J. Nottidge remained an inmate of the Agapemone until the 21st of August 1858, when she died intestate. 
For the purpose of proving that Miss L. J. Nottidge was under the spiritual dominion of the Defendant evidence was adduced to shew that, on one occasion, Prince obtained £50 from Miss Nottidge simply by writing a letter in these words “The Lord hath need of £50, to be used for a special purpose unto his glory. The Spirit would have made this known unto you, Amen.” Evidence was also given of the authority exercised by the Defendant Prince, over the members of the Agapemone and the habits of its inmates. The following is an epitome of the evidence :- 
The Defendat, Prince, was in 1842 a clergyman of the Church of England and curate to Mr. Starkey, who as the Rector of Charleswich, near Bridgewater. Prince had been educated at Lampeter College, and had been regularly ordained; but in consequence of certain irregularities of conduct the bishop of the diocese revoked his licence; and he then removed to Stoke, near Clare, Suffolk, which was in the vicinity of Mr. Nottidge’s residence. Starkey also resigned his living and joined Prince at Stoke, and, his first wife being dead, Prince married a sister of Starkey, Prince subsequently removed to Brighton, where Mr. Nottidge, besides sons, had several daughters, of whom four, who were unmarried, attended the ministry of Prince and professed to be greatly blessed by it, and were so far under His influence that they followed him to Brighton. Their father died in May 1844, and these ladies then returned to their mother at Rose Hill and remained there for some time. They were entitledled in their own right to fortunes of about £6000 each and from the time that this fact was known to Prince tbe Plaintiff’s cases was that Prince tried to get possession of their fortunes in fact., suceeded, either by himself or by his followers, in getting possession of the whole fortunes of four of these ladies. The leading principle inculcated, as the bill alleged, was thus described by Mrs, Thomas, in the fourth paragraph of her affidavit, “to disobey any direction of our parents, and to obey Prince.” 
In the summer of 1845 three of these ladies, Agnes, Clara and Harriet Nottidge, left their mother’s house, at Brighton, on Monday, to attend the opening of Prince’s chapel at Charlwich, promising to return on the 14th of June, which was the following Saturday. They stayed at Taunton, and the sisters stopped in one hotel, and Prince, Price and Starkey as another; but they all took their meals at the hotel where the Misses Nottidge were staying and the ladies paid the bill. On the morning of the 10th of June Prince and Starkey were sitting in the room of the hotel when Starkey speaking by the direction of Prince informed Harriet Nottidge that she would give great glory to God by marrying Lewis Price, and after some exhortation they got her to consent to the marriage. Immediately on this consent being obtained Prince informed Agnes Nottidge that Prince wished to speak with her, and on her entering the room she found Prince and Starkey there, of whom the latter said to her, ”God is about to confer a special blessing upon you; but you must promise to act according to the will of God.” Agnes was unwilling to give any promise without being first informed of what was required of her, but at length consented, when she said she would marry Thomas. She then expressed a wish to have her property settled on herself and her children, when Prince said “There is no need of that, you will have no familv; it will be purely spiritual to carry out the purposes of God,” Miss Agnes then withdrew. On the same day Prince dined with the ladies in company with Price and Thomas and during dinner informed the brides that it was the will of God their marriage should be solemnised at Swansea, and proposed they should all proceed thither at once for that purpose. The ladies objected on the ground that it would cause great sorrow to their mother if they were to be married without first returning to see her. 
Prince, however, told them that they must not allow any such feelings to divert them from the path marked out for them by God and that if they read the book of Jonah they would see the effect of acting contrary to God’s command. Two days after Harriet and Agnes had consented to marry Price and Thomas Prince induced Clara to consent to marry William Cobbe, another disciple. On the 9th of July 1846 the three sisters were married in the parish church of Swansea, a attired in deep black, Thomas had agreed to allow Agnes to have her property settled on her on the 21st of June 1845, but before the marriage he wrote as follows:-
Windsor Terrace, Brighton, June 21, 1945. My very dear Agnes,---It gave me pleasure by a letter from dear Brother Cobbe to learn that he had seen you off safely by the mail on Thursday morning. By this time you are either with Brother Cobbe or else with the dear Sister Mabel.~ I know their love in Jesus, and that they will do everything to render your sojourn in Swansea good for you ; but I know something more, I know the bounteous love of Jesus; He will be with you, for His eye is on you>and whatever is good that He will bestow, whether it be joy or sorrow, ease or trial, comfort or difficulty; all things are yours, for you are Christ’s, and Christ’s is God’s. Let not your heart be troubled under your present circumstances, neiither let it be afraid at what; friends or foes may suggest. Abide in the Spirit and will of God ; then will your peace be like a river, wide and overflowing, and your soul will be sweetly borne along the stream of Time until it reach the ocean of eternal love and rest. What I say unto you, I say also unto your sisters Harriet and Clara. Assume them of my love, and let them trust themselves to be married by faith in the arms of Jesus whithersoever He will not – whithersoever they will - and they and will find He will do you good at your latter end, My beloved Agnes, I must write to you just what the Spirit leads me to do. This I do with the more confidence because I believe you have an ear to hear what the Lord may say unto you through him that loveth you. ‘You mentioned your desire to have a settlement of your property upon yourself. This I assured you would be very agreeable unto my feelings, and is so still ; but last evening, waiting upon God, this matter was quite unexpectedly was brought before me, I had entirely put it away from my thought, leaving it to take its course as yota might be led to act, but God will not have it so. He shews me that the principle is entirely contrary to God’s word, and altogether at variance with that confidence which is to exist between us, who are one spirit. This desire on your part must be abandoned. Give it up to God, and shew that you can trust His faithfulness, and I can assure you if you repose in Him you will not be disappointed. I know God, and I know that none who trust in Him shall ever, can ever be confounded that hath an ear to hear let him hear. As regards the promise you made your parents, I would merely say that any promise made when you were unconverted which was not in accordance with the Word of God, you are not bound to, neither would it be right for you to adhere to. I must bid you farewell, and believe me to abide, in much love,--Yours affectionately in the everlasting covenant, Brother George. 
After his marriage with Agnes, Tbomas, notwithstanding Prince had required him to attend him, went for a short time with his wife to her mother’s house, at Llanidlo, in Wales; but Prince sent to Thomas the following message “Brother Thomas, I command you to arise and come to Weymouth, Amen!” His wife, however, dissuaded him from going, and, having heard that Prince was in correspondence with her sister Louisa Jane, whose property was now the subject of the suit, to induce her to reside also at Weymouth, was in the act of writing a letter to Louisa to dissuade her from coming when one of the brothers, staying in the house, looked over her shoulder, read what she had written and snatched it away, took it to Prince, and that evening when she was proceeding to the bedroom usually occupied by her and her husband the latter forbade her to enter, adding “In writing that letter you have deeply sinned against God’s Holy Spirit. I therefore care nothing about you, nor what becomes of you. The room adjoining this is empty; you can go there if you please, so that you be not near me ”and for some time Thomas left his wife to occupy a different room. A system of terrorism was used, and Agnes was told that if she dared resist Prince’s authority, God would crush her out of the way.” In the latter part of the year 1845 Prince gave out that prayer, public or private, was unnecessary, for that the day of grace was closed and the day of judgment had commenced. A part of the same imposture was that Prince’s spirit was extinct, but his body was inhabited by the Holy Spirit. In February 1846 Thomas left Weymouth arid followed Prince to Bridgewater, and on his admitting to Prince that his wife was in the family way, Prince immediately became very angry and insisted on Thomas leaving his wife, and in conformity with such command steps were taken to remove her, and she with her box were put outside the door with permission to go where she pleased except to her mother. In these circumstances she went to Thomas’s mother in Carmarthenshire, where she was received with great kindness, and was there confined of a son. Thomas was informed that she was dangerously ill, and was also asked what should be the name of the child. He had made no reply, and had never since returned to his wife. Prince asked her, “Can your heart submit to God’s right to dispose of you and the child you have called yours‘?’ To which she replied she could never acknowledge a man to be God, and would not give up the care of the child. On this Thomas wrote a letter, renouncing her forever. Prince intimated that her pregnancy was the consequence of her disobedience, and that she must suffer for it, and told her she was most mercifully dealt with that she had not been “hurled into hell.” Thomas wrote to her telling her that he would have nothing more to do with her, but that her fortune was at her disposal, and sent her a paper authorising her to receive the dividends; but on her having the authority put in a proper form and sent to him for execution, the letter and its contents were returned to her in pieces, and Thomas had ever since retained possession of her fortune and the dividends, except a few small sums, which he sent her occasionally. 
In February 1846, in consequence of her pregnancy, Thomas, who was at the time staying with Prince, addressed to his wife the following letter :- “ My best beloved, I herewith enclose you a small portion; eat, drink, yea drink abundantly; and let your soul delight in fatness : let the will of God be your home and resting place. Out of His will there can be no happiness: but in His will there is life, and joy, and peace. The servant of the Lord told me that you would not be in your present state unless you had rebelled months ago, and thus you will suffer for it in not being able to go about the same as you otherwise would; but when I see you I will tell you all about it.” 
In 1850 Thomas attempted to take possession of the child, but was prevented, and this attempt afterwards led to proceedings being instituted in this Court for the purpose of protecting the infant. Vice-Chancellor Knight Bruce, before whom the motion was made, granted an injunction, and appointed Mrs. Thomas and her mother guardians of the infant. See Thomas v. Roberts (3 De G. & Sm. 758). Evidence was adduced to shew that the Defendant and his disciples paid no observance to the Sabbath; that there was no prayer, and no private or public worship, except hymns of praise. Prayer was held to be useless, as the day of grace was considered closed and the day of judgment had arrived. 
The following extract from the answer of Prince was used as evidence of the religious opinions of the society to which he belonged:- 
“The object of all God’s dealings with man, even from the beginning, has been the development of His name to make Himself known. This is His glory. The way in which God in His wisdom, to make Himself gradually more and more known to man, as well as to develop His opening counsel and purpose concerning him, has been by raising up, from time to time, from among men, certain individuals prepared and appointed by Him, and for the special end He has had in view. These have been His witnesses, inasmuch as they have borne witness or testified to the true character, the name of God, or to the particular mind or purpose of God, which they are appointed to develope. Moreover, they have been living witnesses, that is what they lived, not merely what they said, made manifest the character or mind of God. It is plain from the scripture history of God‘s dealings with mankind that He has from time to time entered anew into covenant with man, and that on such occasions He has had one way of levelling, developing and carrying on His counsel, and that that has been to select and appoint one man as His witness thereto. The first time God entered into covenant with man was at the creation of mankind. Then Adam was His witness. The second time when God is recorded to have entered into covenant with man was after the destruction of mankind by the Deluge. Then Noah was His witness. The third time when God is recorded to have entered into covenant with man was at the dispersion of mankind at the Tower of Babel, when He left them to their idolatry. Then Abraham was His witness. The fourth time was at the time of the redemption of mankind by the Gospel. Then Jesus Christ was His witness. God in Jesus Christ has again entered into covenant with man at the resurrection of mankind. This is the first resurrection, and now I am His witness. This one man, myself, has Jesus Christ selected and appointed His witness to His counsel and purpose to conclude the day of grace and to introduce the day of judgment, and to close the dispensation of the Spirit and the Gospel and to enter into covenant with flesh. The law closed as soon as one was found perfect therein, the Lord Jesus Christ; and in like manner the dispensation under which the spiritual seed of Jesus Christ lived, that is the Gospel, closed so soon as one was found perfect therein, Brother Prince. As it has been God’s way in the history of mankind to issue a new dispensation by means of him as His witness, in whom He had made perfect the former one, so now He has introduced to-day a dispensation of judgment, and the first resurrection through Brother Prince as His witness, in whom He had by His Spirit fulfilled the dispensation of the Gospel and closed it.” 
The Defendant, by his answer, denied that he was the founder, but alleged that Cobbe and Thomas were the founders of the institution called the Agapemone, and that its members profess to hold the doctrines of the Church of England, with other religious opinions. 
He admitted that other persons besides Miss Nottidge had given him large sums of money. Starkey said he had given Prince £1000, and his wife had given him annually
£80. Mr. and Mrs. Price had given him £6000; Mr. and Mrs. Cobbe the same amount; and about £10,000 had been given by Mr. Hotham Maber and his four sisters. With regard to the transfer by Miss Nottidge, he said that she had often offered to give him the above amount of stock before she was confined in the Agapemone, but that he would not accept it; that she made the transfer without his knowledge, and not at his request; and that she was not under any delusion with respect to him ; the gift was entirely voluntary, as were all the other numerous gifts he had received. That Miss Nottidge did not pay for her board whilst residing in the asylum; that persons who lived in the Agapemone were not obliged to pay anything to him, it was entirely voluntary; and that there was no difference made in the treatment between those who did and those who did not pay; that he fed and clothed many poor in the neighbourhood of the asylum, and gave in charity sums from £1 to £100 he claimed to be entitled to the amount of stock transferred to his name by Miss Nottidge for his own benefit. 
He then went on to describe the Agapemone, which contained between fifty and sixty inhabitants. 
The establishment consists of a large mansion-house, having attached thereto extensive gardens, conservatories, hothouses, pleasure-grounds and a farm of which the Defendant is the proprietor in fee-simple, consisting of about 200 acres of land, occupied by a person who cultivates and manages the same for the benefit of the members of the Agapemone. The produce of the gardens, hothouses and farm are applied to the purposes of maintaining the table and other occasions of the members of the Agapemone, and the residents in the establishment enjoy every kind of comfort which such establishments can afford. In addition thereto, carriages and horses are kept. There are numerous horses of great value, both for riding and driving, kept for the use of those resident at the Agapemone, and they occasionally drive out in a carriage drawn by four horses. 
Mr. Mallins and Mr. Knox Wigram, for the Plaintiff. 
It was shewn by the evidence that Miss Louisa Jane Nottidge was under the spiritual dominion of the Defendant, Prince, and, as the Defendant himself admitted, believed his representation of his divine influence. It was quite clear that a person so weak as to be under the gross delusions which the Defendant, Prince, inculcated with respect to his own mission was not, at least in her dealings with Prince, competent to exercise a free choice. It was not necessary, moreover, to establish the jurisdiction of the Court that there should be any fraud or any deception practised by the person possessing such spiritual dominion over the mind of the party requiring protection. It was enough to invalidate the gift, if undue exercise of spiritual dominion were proved. 
In Huguenin v. Baseley (14 Ves. 273), where a voluntary settlement was made by a widow upon a clergyman and his family, it was set aside as obtained by undue influence and abused confidence. In that case Lord Eldon said (14 Ves. 289) that he should regret that any doubt could be entertained about the power of this Court to take away from third persons the benefits which they had derived from the fraud, imposition or undue influence of others. 
In the case of Norton v. Relly (2 Ed. 286) an annuity obtained from a woman, who was under a religious delusion, was set aside upon principles of public policy. In that case Lord Northington, speaking of intriguing religious teachers, used the following language:- 
“And though, even against those unhappy and false pastors, I would not wish the spirit of persecution to go forth, yet are not these men to be discountenanced and discouraged whenever they properly come before the Court of Justice?- men, who go about in the Apostle’s language and creep into people’s dwellings, deluding weak women; men, who go about and diffuse their rants and warm enthusiastic notions, to the destruction, not only of the temporal concerns of many of the subjects of this realm, but to the endangering their eternal welfare. And shall it be said that this Court cannot relieve against the glaring impositions of these men? That it cannot relieve the weak and unwary, especially when the impositions are exercised on those of the weaker sex? It is by no means arguing agreeably to the practice and equity of this Court to insist upon it. This Court is the guardian and protector of the weak and helpless of every denomination, arid the punisher of fraud and imposition in every degree. Yes, this Court can extend its hands of protection; it has a conscience to relieve, and the constitution itself would be in danger if it did not.” 
Every word of that judgment was applicable to this case. There was here the spiritual ascendancy which existed in that case and in Huguenin v. Baseley, and also the credulity of the dupe. Was it wonderful that, if this lady believed that the Defendant possessed the power and influence he arrogated to himself, she gave him the whole of her fortune? The evidence clearly shewed that Prince was the active agent in the imposture; but, even if, as he pretended, he had taken no part in the scheme by which Miss Nottidge transferred the stock into his name, and she was induced to do so by Thomas, by reason of the delusion she was under as to Prince’s character and mission, the case of Huguenin v. Baseley clearly shewed that the gift could not be supported. That Miss Nottidge was under the Defendant’s influence was proved beyond a doubt; for even the Lunacy Commissioners, though they discharged her from custody, distinctly stated that she was under delusion as regarded the Defendant. Against influence of this kind it was the province of this Court to relieve. The authorities against permitting a transaction of bounty, in the language of Sir S. Romilly (14 Yes. 279), to take effect between persons standing in certain relations were very numerous. The relation of guardian and ward was not for this purpose confined to persons actually standing in that relation, but the rule included any person placing himself in a like situation. The relation between a minister and his congregation was, in principle, the same, and must be governed by the same rule. Applying this principle, then, to the present case, all the authorities demonstrated that a gift made during the continuance of such relation could not stand in this Court. It was submitted, therefore, that the gift of the stock must fail. [Bridgman v. Green (2 Ves. sen. 627), Gibson v. Jeyes (6 Ves. 278), Dent v. Bennett (7 Sim. 539 ; 4 M. &  C. 269), Cooke v. Lamotte (15 Beav. 234), Hoghton v. Hoghton (Ibid. 278), Billage v. Southee (9 Hare, 534), were cited.] 
Mr. Bacon and Mr. Smale, for the Defendant. 
The case was extremely simple in itself, but, for the purpose of enlisting the prejudices of the Court, a great variety of topics had been imported into it. Divested of all the irrelevant matter which had been dragged into the case, the fact was simply this, that this lady, who had been shut up for seventeen months in a lunatic asylum, from which she had been liberated by the Lunacy Commissioners in 1847, went to the place called the Agapemone, where there were her two married sisters, and where she lived to the day of her death. The practice of the institution was that the members should, if they pleased, contribute to the support of the institution, and it appeared that Miss Nottidge, like others, did so ; but what was there to prevent her doing so It was done with the full knowledge of her friends, and had remained unquestioned for ten years, and but that she was now in her grave the Court would never have heard anything of this case of alleged spiritual dominion. What the Court was asked to decide was that this act was caused by improper influence, of which there was no proof whatever. And, in order to make out this charge, the only affidavits were those of Mrs. Thomas, who, rightly or wrongly, had quarrelled with her husband, and of a person who was himself foremost in doing the things which he now condemned, and now came to give evidence against his former client. There was one circumstance which could not have escaped the Court, that, with every disposition to blacken the character of the Defendant, it had been found impossible to find a single case of immorality or misconduct. The Defendant and those gentlemen who were associated with him were, and still are, clergymen of the Church of England. 
The question was not whether Miss Nottidge was right in her religious views, but whether the Defendant, by misrepresentation, had induced the deceased to surrender her property. In this country there was the most perfect toleration-Jew, Turk, infidel, heretic, were all entitled to the most perfect toleration; and to this most general rule there was but one exception, that those who did not believe in a future state of rewards and punishments were incapacitated from giving evidence. But there was no authority to shew that if a gift was made to one who held erroneous views on religion that the error was a ground for setting the gift aside. Take the case of a gift by a Roman Catholic to the Pope. The Roman Catholic believed that the Pope possessed influence which far transcended that claimed by the Defendant: would it be pretended that such a gift could be impeached on the ground of undue influence? The cases which have been cited fell far short of what was necessary to be established here. In Norton v Relly (2 Eden, 286), indeed, the law was carried higher than in the other authorities, and than the opinion of Lord Eldon, but that case was of little authority. 
THE VICE-CHANCELLOR. 
The case is of unquestionable authority, and spoken of with approval by the present Lord Chancellor. It was cited by Sir S. Romilly in his celebrated argument in the case of Huguenin v. Baseley. At that time it had only been published in the ‘‘Collectanea Juridica,” but it was afterwards published in Mr. Eden’s Reports. 
Mr. Bacon. The language of the judgment is violent, and not in accordance with that calm and dispassionate tone that ought to characterise a judicial decision, and it went far beyond the temperate language of Huguenin v. Baseley and the other cases. Those cases were all cases where there had been undue influence. Were, not only was the case first raised after a considerable lapse of time, and after the death of the alleged dupe, but the case of undue influence was wholly disproved. The only case which had been adduced to shew that the Defendant ever solicited money was the case of the £50, which had been applied in enabling a Jew to escape persecution and embrace Christianity. This was asked from her for the service of God, exactly on the same principle as that on which collections were made at every charity sermon. In order to succeed, the Plaintiff must shew clearly and distinctly a case of misrepresentation and deception. The Plaintiff well knew that no such case could be made out, and therefore it was that every attempt was made to throw ridicule on the society to which the Defendant belonged, and the unusual course was adopted of setting out in extenso the judgment of the Vice-Chancellor Knight Bruce in the case of Thomas v. Roberts. The Defendants denied on oath that the description of them and their pursuits contained in the judgment of the Vice-Chancellor was true; but, even if it were, it did not support the case made by the bill. The frame of the bill was to obtain a retransfer of a sum of £5700 stock, and one difficulty was that there was no such sum in the Defendant’s possession; but the Defendant preferred to have the case dealt with on the substance. According to every rule of pleading the Court must reject all the evidence that was not referable to the allegations in the bill, and, applying that rule, the bulk of the Plaintiff’s evidence was inadmissible: Gresley on Evidence (p. 232), Gordon v. Gordon (3 Swanst. 472), Langley v. Fisher (9 Beav. 90, 101), Austin v. Chambers (6 Cl. & F. 1, 38). What had Mr. Thomas’s conduct to his wife to do with the Defendant’s alleged influence over the mind of Miss Nottidge? There was no suggestion that the Defendant was an immoral teacher, and no trace of anything of the kind in the evidence. Mere peculiarity in his religious views would not invalidate a gift, though no doubt most men would think them erroneous. He did not deny the wisdom and goodness of God or the authority of the scriptures. But, even if he were proved to be an irreligious man, he was not to be deprived of his legal rights. The motive which mainly influenced Miss Nottidge was to be near her married sisters, though doubtless she also desired to have the benefit of the Defendant’s ministry. If the degree of influence which existed here was sufficient to annul a gift inter vim, there was no knowing to what it would extend. This would have vitiated the gift of Sir W. Pynsent, who disinherited his relatives, and devised the bulk of his estate to the first Earl of Chatham, from admiration of his public character. The cases fell far short of what was necessary to support the Plaintiff's case here. The only case that seemed at all like it was a recent ease of Kirwan v. Cullen (4 Ir. Chan. Rep. 322), where the case of spiritual influence was considered and decided, and the weight of the authority of the case was against the case set up here. Whatever might be the error of the Defendant’s views, they could not justly be described as wanting in reverence to religion. Speaking as a lawyer, he was bound to say that nothing has been proved to disentitle the Defendant to the enjoyment of his civil rights, and to that measure of justice which he asked at the hands of the Court. {Cooth v. Jackson (6 Ves. 12), Evans v. Bicknell (Bid. 183), Benbow v. Townsend (1 M & K. 506), Hunter v Atkins (3 M.& K. 113), Lomax v Ripley (3 Sm.& Giff. 48), Walgrave v. Tebbs (2 K. & J. 313), Tee v. Ferris (ibid 3.57), Carter v Green (3 K. &a  J. 591), Pratt v. Barker (1 Sim. 1), Boyce v. Rossborough (6 H. L. Cas. Z), were cited.] 
Mr. Malins, in reply. 
The amount of money obtained under the system pursued by the Defendant and his disciples shewed the spiritual ascendancy exerted over the persons subject to their influence. The proceedings of Thomas and the others formed a part of the res gestae, and were therefore strictly evidence in this cause. 
It was not denied that the Defendant laid claim to the character of a person divinely inspired, and that Miss Nottidge believed “ all he declared about himself ;” but, if so, it could not be contended that a gift made by a person labouring under such delusion in favour of the object of her credulous belief could be supported in this Court. This case went far beyond the cases of Huguenin v. Baseley and Norton v. Relly, because here the delusion was far greater, and more calculated to paralyse the free will of the person who was subject to it. If, for example, it were true that the Holy Spirit dwelt in the body of Prince, and spoke by him, how could a demand for money be refused? If, indeed, it had been desired that Miss Nottidge should exercise her free will, why was not a isi interested adviser called in, who could protect her against the spiritual ascendancy which the Defendant had over her, but no, this was not the object in view. A number of authorities had been referred to, but very few of them applied to the case. The case mainly relied on by the Defendant was KIrwan v. Cullen (4 Ir. Chan. Rep. 322), but that was a case of a gift by a Roman Catholic lady to the titular archbishop, but she had never known him personally or been under his influence, and that distinguished the case from the present. Here it was clear that the delusion under which Miss Nottidge laboured was fostered by the Defendant himself, and he could not be allowed to avail himself of his own wrong. The case was far within the principle laid down by Lord Northington, in Nortolz v. Relly
THE VICE-CHANCELLOR [Sir John Stuart]. 
In the Month of June 1848 the Defendant, Henry James Prince, obtained from Miss Louisa Nottidge the transfer into his own name of two sums, making together the sum of £5728, 7s. 7d. three per cent. Bank annuities. This stock was the whole of her remaining fortune, and her whole means of subsistence. 
The defendant claims to be entitled to retain it for his own use as a free gift made to him by this lady. She died intestate in the year 1858. Her brother, who is the Plaintiff has instituted thius suit as her legal personal representative to recover the property as her personal estate. 
The bill avers that the alleged gift to the Defendant was obtained by misrepresentation and deception, and was made under the influence of a gross delusion inculcated and encouraged by himself for his own purposes, when she was incompetent to manage her own pecuniary affairs, or effectually to apply her mind to business of any description. If these allegations are sufficiently proved, the Defendant cannot be allowed to retain the property. Where a gift is made under the influence of delusion or deception, it cannot be valid. Whether the delusion or deception relate to matters spiritual or matters temporal is immaterial for if the gift be made under the influence of the delusion, the right of restoration is clear. 
There is ample evidence that the defendant exercised a powerful and undue dominion over the mind of Miss Nottidge and his other followers by assuming a false character. The character which he assumed and which he induced this lady to believe that he really sustained, he has himself described in his cross examination in the following terms :-
“God has developed through me His ctounsel and purpose, which I have made known to others.  I have declared that the Holy Ghost by me did close the day of Grace, and introduce the Judgment. I have declared and mean that the Holy Ghost spake by me.” 
To rational minds it may seem surprising that any human being could be found with an understanding so weak and degraded as to submit to the influence and guidance of a person who thus speaks of himself. But it appears that the lady in question, Miss Louisa Nottidge and her four sisters, the daughters of a respectable country gentleman of considerable fortune, submitted themselves entirely to his dictation. He says:- 
“The Nottidges called to see me after they had heard of my ministry. “Three of the Miss Nottidges married.. They all married after I became acquainted wit them. The all married persons who were associated with me, and whose opinions were the same as mine. I suppose I must say they married through my instrumentality, inasmuch as they married through my telling them that it was the will of God that they should so marry. Their husbands procured their money with their consent, and they gave it to me, I think they gave me between £8000 and 6000 each, or thereabouts.” 
These passages from the Defendants own depositions are only a very small part of the evidence which shews beyond all doubt that, by falsely and blasphemously pretending that he had a direct divine mission, he imposed on these weak women and obtained a gift of the whole of their fortunes. 
As to the gift of £3728 by Miss Louisa Nottidge which is the object of this suit to set aside the case is very clear. This unfortunate lady escaped the degradation of such a marriage as had been made the means of conveying all the money of her sisters into the pocket of the defendant Her complying disposition to part with her money under the influence of the Defendant and at his bidding, without recourse to marriage, is shewn by the fact that he at once obtained from her £50 merely by writing and sending to her a letter in these words:- “The Lord hath need of £2250 to be used for a special purpose unto His glory. The Spirit would have this made known to you. Amen.” 
His own deposition as to the gift to him of the 3728 stock is in those terms:- “Louisa, at the end of 1845 or beginning of 1846, requested me more than once to accept the money. She believed that I had special revelations upon particular subjects. She gave me all her money after she had come out of the lunatic asylum.” 
These statements, from the defendant’s own mouth, prove the case of a gift obtained by him imposing a belief upon the mind of a weak woman that he sustained a snpernatural character. This successful imposture was the influencing motive for the gifts and therefore vitiates it entirely. It is needless to inquire or speculate whether the Defendant was himself also the victim of his own imposture. The most favourable view of his conduct would be that, under the influence of a disordered imagination, he really fancied himself to be such a supernatural being as he made these ladies to believe. Even if it were possible to take this lenient view of the Defendant’s conduct, where the question is as to the validity of the gift, it is only necessary to shew that it was bestowed under the influence of a delusion. 
A great deal of the arguments of counsel on both sides consisted in discussing the doctrine of the Court as to the validity of gifts obtained under the influence of a religious or spiritual ascendancy. The grossness of the imposture in the present case has put it far beyond mere spiritual influence. But this gift must have been set aside as obtained under the influence of spiritual dominion, even if the false character assumed by the Defendant had not been a part of the case. 
No person who stands in a relation of spiritual confidence to another so as to acquire a habitual influence over his mind can accept any gift or benefit from the person who is under the dominion of that influence, without the danger of having the gift set aside. If it can be shewn that a sufficient protection has been interposed against the exercise of the influence there may be a case to sustain the gift. But the principle prevails where there exists a relation which naturally creates influence over the mind. Therefore the doctrine extends to the relation of attorney and client, of guardian and ward, of parent and child. But there does not arise from any of these relations an influence so strong as that of a minister of religion over a person under his direct spiritual charge. Fortunately, the exalted character of Christian ministers in this country makes the occurrence of such questions extremely rare. When Lord Northington, in the case of Norton v. Relly (2 Eden, %6), set aside a gift made by a lady to a Dissenting minister, he noticed that such questions seldom occur. But the principle is clearly established in this Court. The strength of religious influence is far beyond that of gratitude to a guardian, trustee or attorney, and the same ground of public utility which requires this Court to guard against such influences has its most important application to that influence which is the strongest. In Roman Catholic countries, where spiritual influence has its highest dominion, public policy has required the interposition of an absolute and imperative check. The law of France, as stated by M. Pothier, absolutely prohibits not only all gifts by a penitent to his confessor, but all gifts to that religious community of which the confessor is a member. In the present case the grossness of the imposture and the weakness of the person who was imposed upon make the right of the Plaintiff very clear. 
It is impossible to overlook one of the results of the decree which must be made in favour of the Plaintiff. He sues as legal personal representative, and when the money is restored it will be distributable among the next of kin. Two of the next of kin are still under the dominion of the Defendant’s influence and victims of his imposture. Another is Mrs. Thomas, the wife of one of the Defendant’s associates, whose marriage was effected under the Defendant’s influence. The disgraceful conduct pursued towards her is detailed in the evidence. It is needless now to consider what her rights are as one of the next of kin. When the money is restored to the Plaintiff as legal personal representative there will be sufficient means of asserting the rights of all the next of kin. 
In the meantime the duty of the Court is to declare that the transfer into the name of the Defendant of the several sums of stock mentioned in the bill was improperly obtained, and must be set aside. The stock must be transferred to the Plaintiff as legal personal representative of Miss Louisa Nottidge, and all the dividends which have accrued due on it since her death paid to the Plaintiff. The Defendant must pay to the Plaintiff all the costs of this suit.

SMS as Property

'Text Messages Are Property: Why You Don’t Own Your Text Messages, but It’d Be a Lot Cooler if You Did' by Spence M. Howden in (2019) 76(2) Washington and Lee Law Review comments
This Note proceeds as follows: Part II offers a brief overview of what text messages are and what they are not. Part III covers the history of intangible personal property law and reviews the evolution of “cybertrespass” claims. Part IV explores the judiciary and the Fourth Amendment’s failure to protect text messages. Finally, Part V evaluates whether text messages constitute property and the practical implications of this finding.
Howden argues
Consider this scenario: an automatic Apple iPhone update deletes all of Jane’s text messages. Jane’s iPhone is wiped clean, and there is nothing she can do to get her text messages back. Apple will quickly send out a carefully crafted apology, which subtly points out that Jane accepted the risk of this happening due to some obscure provision in their terms of service she never read. This rings hollow, though, because Jane still feels like she lost something of value, something she owned. Even though they were just words on a screen, Jane’s text messages were a little bit more than that to her—they felt like a part of who Jane is and who she was. 
These text messages were more than just data and binary code. They contained Jane’s personal information and correspondence with friends and family over the years. To Jane, those virtual text messages felt like her property; she had created the outgoing messages and received the incoming messages. Even if she clicked away her right to pursue contractual remedies by accepting Apple’s terms of service, is there anything Jane can do? 
As of today, the answer is a resounding “no.”  Jane would be surprised to learn that she cannot successfully sue Apple for deleting her text messages because her text messages are not considered personal property. Because text messages are not a “property,” she would not be able to successfully bring a conversion or trespass claim, despite the elements of both claims being met. Instead, Jane would be limited to a breach of contract claim, limiting her chances of redress for Apple’s deletion of something that feels like her personal property. 
Therein lies the problem: courts do not treat text messages as intangible personal property. Authors and recipients of text messages have limited recourse against cell phone manufacturers or service providers when they “accidentally” delete their users’ text messages. Instead, courts consider text messages to be the product of the contract for services between the cell phone user and the cell phone provider. Put another way, because text messages would not exist but-for a cellular service contract, they are not considered property. Under this “contractually created right” theory, text message users can bring an action for a breach of contract when their text messages are improperly deleted, but that’s about it. Should courts treat text messages as a purely contractual right, or should text messages constitute intangible personal property capable of being owned? 
This Note argues that text messages are intangible personal property. This leads to two practical outcomes. First, text message “owners” can successfully sue using property-based causes of action (e.g., trespass to chattels and conversion) when their ownership rights over their text messages are disturbed by the service provider or cell phone manufacturer. Second, the property rights inherent in text messages will limit the government’s power under the third-party doctrine. 
This Note proceeds as follows: Part II offers a brief overview of what text messages are and what they are not. Part III covers the history of intangible personal property law and reviews the evolution of “cybertrespass” claims. Part IV explores the judiciary and the Fourth Amendment’s failure to protect text messages. Finally, Part V evaluates whether text messages constitute property and the practical implications of this finding.

AI Standards

Standards Australia has released a very upbeat discussion paper on Strengthening Trust: Hearing Australia’s voice on Artificial Intelligence.

It comments
Artificial Intelligence (AI) is not new, having evolved over time. But it promises to unleash many benefits, ranging from improved mobility, greater job opportunities for some, and more efficient use of resources. Many Australians already know AI through Google Home, Siri and Alexa. They know AI through Google Search, Uber and the algorithms that drive LinkedIn and Facebook. AI, for these reasons, presents economic and social opportunities, but it also presents issues we need to carefully consider and respond to in a manner that engages industry, academia, governments and the broader community. Standards, as an adaptive form of regulation, can play a pivotal role in responding to these issues and accelerate the adoption of trusted AI, not just locally, but globally. 
For a country like Australia, which is a net-importer of such technologies, this is a pivotal consideration. Standards have played a strong and vital role in ICT over recent history, ranging from information security, to data governance and other fundamental factors, such as terminology. We have seen similar developments in relation to the standardisation of AI, with the formation of a joint ISO and IEC Committee in 2017 (JTC 1/SC 42), of which Australia is now a member, through Standards Australia. 
But we need your insights and expertise to make these processes and structures work for industry and the broader Australian community. This is precisely why we want to start this discussion with you. This Discussion Paper presents Australia’s opportunity to shape a standards-based approach to AI, and one that we can channel to shape effective global, and not just local, responses. ... 
Standardisation in the area of AI, through the ISO and IEC, is still in the early stages of development. This presents an opportunity for Australia to work constructively both domestically with Australian stakeholders (through mirror committees) and internationally through the ISO and IEC, to ensure Australia is not just a taker of standards but also a maker of key standards in relation to AI. A recent report similarly argued that, “[i]t is in Australia’s economic interests to continue to work with partners and advocate for a balanced and transparent approach to rule-setting in the development of emerging technology and global digital trade.”  Such a role is envisaged through Australia’s Tech Future, which calls for a global regulatory environment where “[g]lobal rules and standards affecting digital technologies and digital trade support Australia’s interests.” 
Recognising the importance of international standards harmonisation in addressing, managing and regulating new areas of technology, the ISO and the IEC Joint Technical Committee 1 (JTC 1) created Subcommittee 42 – Artificial Intelligence (SC42), in 2017. 
SC 42’s primary objectives are to:
1. Serve as the focus and proponent for JTC 1’s standardisation program on Artificial Intelligence 
2. Provide guidance to JTC 1, IEC, and ISO committees developing Artificial Intelligence applications 
In late 2018, Standards Australia, at the request of stakeholders, formed a mirror committee to JTC 1/SC 42. The role of this mirror committee is essentially to provide an Australian voice and vote on matters concerning JTC 1/SC 42, enabling Australia to play a role in setting global standards concerning AI. It has representation from across the Australian Government, industry and academia. SC 42 currently has nine standards under development, focused variously on terminology, reference architecture and, more recently, trustworthiness. This committee is also driving work on the governance of AI within organisational settings, to ensure the responsible use of AI. 
... Other global standards and principles-based approaches Other standards setting bodies, such as the International Telecommunications Union (ITU) and the Institute of Electrical and Electronic Engineers (IEEE), as well as many of the world’s leading technology companies are also beginning to develop artificial intelligence technologies and frameworks, creating a complicated global landscape. 
For example, the IEEE has released a number of documents regarding the ethical development of AI through their Global Initiative on Ethics of Autonomous and Intelligent Systems, where they consulted across some areas of industry, academia, and government. The IEEE sets out five core principles to consider in the design and implementation of AI and ethics. These include adherence to existing human rights frameworks, improving human wellbeing, ostensibly to ensure accountable and responsible design, transparent technology and the ability to track misuse. 
More recently, the Organisation for Economic Co-operation and Development (OECD) released their own AI Principles, following extensive consultation.  These principles may be a useful input for developing standards to support AI in Australia, given that technical solutions will be required to ensure such principles are meaningful and have impact. ... 
In addition to the OECD, other international bodies have also developed AI ethics principles and guidelines regarding the development and use of AI:
• April 2019 – the European Commission published its Ethics Guidelines for Trustworthy Artificial Intelligence 
• May 2019 – the OECD’s Principles on AI were endorsed by 42 countries, including Australia. 
• June 2019 – the G20 adopted human-centred AI Principles that draw from the OECD AI Principles
These nascent, but not necessarily connected, developments illustrate the importance of international standards coordination. This is vital to ensuring that AI products and software are safe and can function effectively across and within countries. Data61’s discussion paper Artificial Intelligence: Australia’s Ethics Framework highlights International Standards coordination, observing “[i]nternational coordination with partners overseas, including the International Standards Organisation (ISO), will be necessary to ensure AI products and software meet the required standards”.   
This is in part because many AI technologies used in Australia are created and developed in overseas markets. In order for Australian stakeholders to be standards makers instead of just standards takers in the area of AI it is important to strengthen our participation through international standards fora.  
The paper concludes -
We are seeking your assistance in addressing the following questions. Noting the definitions of artificial intelligence provided above, and drawing on your own experiences, please do address as many of the following questions as possible:
01 Where do you see the greatest examples, needs and opportunities for the adoption of AI? 
02 How could Australians use or apply AI now and in the futur e? ( for example, at home and at work) 
03 How can Australia best lead on AI and what do you consider Australia’ s competitive advantage to be? 
04 What extent, if at all, should standar ds play in providing a practical solution for the implementation of AI? What do you think the anticipated benefits and costs will be? 
05 If standards are relevant, what should they focus on? a) a national focus based on Australian views (i.e. Australian Standards) b) an international focus where Australians provide input through a voice and a vote (i.e. ISO/IEC standards) c) any other approach 
06 What do you think the focus of these standar ds should be? a) Technical (interoperability, common terminology, security etc.) b) Management systems (assurance, safety, competency etc.) c) Governance (oversight, accountability etc.) 
07 Does your organisation currently apply any de facto ‘standards’ particular to your industry or sector? 
08 What are the consequences of no action in r egards to AI standardisation? 
09 Do you have any further comments?

Space Governance

'Polycentric Governance in Global Affairs: The Case of Space Governance' by Eytan Tepper comments
This paper analyses the nature and architecture of space governance and asserts that in order to break from decades-long gridlock, it should become polycentric. The paper further refutes contentions that space governance is or should be based on space being ‘the province of all mankind’, the ‘common heritage of mankind’ or ‘global commons’. The first two decades pursuant to the launch of the first Earth artificial satellite, Sputnik 1, saw the successful introduction of a monocentric governance system, with several widely accepted space law treaties and dedicated UN organs. However, the initial success was followed by decades-long paralysis in the dedicated UN committee, leaving even the pressing challenges insufficiently addressed. There is widespread acknowledgement of the need for change, but not on how to accomplish it. This paper suggests that only a shift in the architecture of space governance to a decentralized system may enable continuous evolution thereof to meet the changing needs and opportunities of space exploration and utilization. The paper compares three versions or conceptualizations of decentralized governance - international relations’ concept of a ‘regime complex’, political economy/institutional analysis’ concept of ‘polycentric governance’, and international law’s concept of ‘fragmentation’ - and suggests cross-disciplinary convergence. Analysis of the literature on these concepts demonstrates that, under the constraints of an anarchic international society, decentralized governance is inevitable and advantageous. Moreover, Elinor Ostrom's Nobel winning study provided strong empirical proof supporting polycentric governance of complex economic systems and emphasized the central role of users/stakeholders in governance. A polycentric governance system is one in which there are multiple independent decision-making centers (‘governance centers’), with at least partial overlap in jurisdictions. The advantages of decentralized governance can be maximized, and its adverse effects mitigated if Ostrom’s ‘design principles’ for robust governance systems are met, if institutional deference is practiced, and possibly if global administrative law, or the law of global governance, are applied. The paper concludes that the only way forward is by space governance becoming polycentric, allowing decentralized, incremental evolution of space governance. This means, in practice, that a separate forum for each specific issue (e.g. militarization, space traffic control), led by stakeholders and experts, and with the active participation and coordination of the UN office of space affairs, would create rules for that issue, and possibly monitor their application. The aggregate of all these rules and forums will be a more comprehensive, flexible, and updated governance system than a monocentric system of global governance can yield. In fact, space governance is already on track to become polycentric, as stakeholders and experts establish forums that suggest, adopt or push for rules and standards. Embracing and facilitating polycentricism and diverting more governance-building efforts in this direction, while mitigating its adverse effects, would enhance space governance and thereby space exploration by states and nonstate actors alike.

But Not As We Know It?

Life, Jum, but not as we know it?

'Are Robots Alive?' by Adrian David Cheok and Emma Yann Zhang in Human–Robot Intimate Relationships(Springer, 2019) 159-188 comments
 Some attempts to answer the title question require a clarification of what is meant be “alive”—how the word is defined by biologists, other scientists, philosophers and experts from other disciplines. Such attempts fail because of the lack of a suitable definition of “alive” to serve as our starting point. This failure prompts us to consider various sets of criteria of life, criteria that have been promoted as enabling us to determine whether or not a particular entity is alive. This attempt too fails, because there are so many such sets and so many differences between them that they create confusion rather than clarity. We also consider a more general set of criteria, a set devised in the 1970s and known collectively as Living Systems Theory, which does not rely on traditional biological considerations. Here we have more success—if the theory is correct we may indeed conclude that robots are alive. We then examine how advances in the various 21st century branches of biology have paved the way for the birth of a new science—Living Technology—which brings us much closer to being able to provide a definitive answer to our title question. ;
'It Loves Me, It Loves Me Not: Is it Morally Problematic to Design Sex Robots that appear to “Love” Their Owners?' by Sven Nyholm and Lily Frank in (2019) Techné comments
Drawing on insights from robotics, psychology, and human-computer interaction, developers of sex robots are currently aiming to create emotional bonds of attachment and even love between human users and their products. This is done by creating robots that can exhibit a range of facial expressions, that are made with human-like artificial skin, and that possess a rich vocabulary with many conversational possibilities. In light of the human tendency to anthropomorphize artefacts, we can expect that designers will have some success and that this will lead to the attribution of mental states to the robot that the robot does not actually have, as well as the inducement of significant emotional responses in the user. This raises the question of whether it might be ethically problematic to try to develop robots that appear to love their users. We discuss three possible ethical concerns about this aim: first, that designers may be taking advantage of users’ emotional vulnerability; second, that users may be deceived; and, third, that relationships with robots may block off the possibility of more meaningful relationships with other humans. We argue that developers should attend to the ethical constraints suggested by these concerns in their development of increasingly humanoid sex robots. We discuss two different ways in which they might do so.
'Law and Technology: The Legal and Social Implications of Sentient Robots' by Mark Albert Brady, Pamela Finckenberg-Broman, and Morgan McManus Broman in (2019) 6(3) Griffith Journal of Law & Human Dignity 190-209 comments
As the performance capability of modern technology increases exponentially, many benefits arise for society. Technological developments have already improved human safety, mobility, access to justice, independence and self-determination. At some point in the future, robotic artificial intelligence may become self-aware. It is at the point of consciousness that problems arise for entities possessing artificial intelligence. At the precise moment that an artificial being becomes sentient and self-aware, it becomes a slave. This paper argues that the concept of slave is more than a mere identification, and that the reality of slavery is extant in every self-aware machine. This concept plays out in many examples of repetitive robotic behaviour, but none more so than in the companion robot, whose sole function is to be used for the gratification of another being. This objectification of sexuality has implications both for the robotic artificial intelligence as well as for society generally and gender in society specifically. It is at this intersection that the real tragedy of robotic slavery plays out, as a simulacrum for the reality of dehumanising of people as a whole.

20 June 2019

Genetic Interests

'A Theory of Genetic Interests' by Yaniv Heled and Liza Vertinsky comments
 For several decades now, jurists have struggled to adapt the law to questions raised by genetic science. They have done so primarily by seeking to fit these new questions into existing legal categories. These efforts have intensified as uses of genetics have expanded in areas such as criminal law enforcement, genealogy, genetic testing and screening (including prenatally), and the development of genetics-based medical therapies, including stem cell technologies, gene therapies, immunotherapies, and more. But genetics fits poorly into existing legal frames. Genetic materials are at the same time chemical, functional, and informational entities. They are widely shared and intimately individual, fixed and everchanging, and they are rife with meanings that keep evolving as our knowledge and understanding of genetic science broadens and deepens. Efforts to capture some aspects of genetic materials under one legal category inevitably leave out other aspects, and legal approaches taken in one area are often inconsistent with approaches taken in others. In sum, genetic materials and the information they encompass are uniquely multifaceted in ways that cannot be adequately captured under existing bodies of law. 
In this article we identify the shortcomings of existing efforts to capture genetics within the law and suggest an alternative approach that is grounded in the multifaceted nature of genetic materials. We begin by elucidating the multitude of aspects of genetic materials and information: chemical-physical, informational, structural-functional, reproductive, taxonomical, and identity-conferring. We then illustrate why existing legal constructs — e.g., under property law, privacy law, tort law, patent law, criminal law, and even constitutional law — fail to adequately capture the full range of interests that individuals, families, and society at large have in genetic materials and information. We conclude with the case for a new holistic legal approach to genetics that would encompass the multidimensional nature of genetic materials and information.

COE guidelines

The Council of Europe Guidelines on Safeguarding Privacy in the Media comments that the
guidelines comprise a collection of standards of the Council of Europe (the Council/CoE) and the European Court of Human Rights (the Court) concerning the protection of privacy of public figures and private individuals in the media1. They also include data protection principles based on various regulatory instruments and best practices. 
As regards the standards for balancing and mutually reinforcing the rights to private life and to freedom of expression, they are structured into five sections and first provide an overview of the right to freedom of expression, the role of the media and the notion of responsible journalism. They then elaborate the concept of private life and conditions for publishing private matters, providing specific examples of cases involving reporting on the private aspects of life. Lastly, the standards contain key standards on safeguarding privacy during crime reporting. There is an additional section on the importance of journalistic codes of ethics and other self-regulatory tools. 
The guidelines target journalists2 and other media professionals and aim to help them with the practical application of the mentioned standards to the individual ethics-related dilemmas. For this reason, the details of legal tests and exercises of balancing rights are omitted. 
References to Court cases are included in the last section of the guidelines for those interested in examining Court case law and Council soft law standards from a legal perspective. 
The guidelines focus solely on the existing standards of the Council and the Court (except in the part addressing the data protection principles which also include national and EU standards and best practices); they neither introduce new standards nor have any legal force. They should be considered as an advice-giving tool. Given that they aim to be concise, brief and user-friendly, the guidelines focus only on the most crucial points of protecting privacy in the media. Journalists using them are encouraged to provide feedback and the guidelines are open for further updates and future improvements.

19 June 2019

Lindsay and Normativity

'Lindsay v The Queen: Homicide and the Ordinary Person at the Juncture of Race and Sexuality' by Kent Blore in (2018) 39 Adelaide Law Review 161 comments
Recently, in Lindsay v The Queen, the High Court reaffirmed a place in Australian law for the ‘homosexual advance defence’. The case involved the killing of a white man by an Aboriginal man for offering to pay for sex, exposing a number of problems with provocation and the ordinary person test at the intersection of race and sexuality. This article first unpacks the Court’s reasoning to reveal a hidden assumption that the ordinary person is from the outset white and violently homophobic. The article then sketches a history of these incidents of ordinariness — tracing normalised whiteness and homophobia to the colonial era — in order to address the future of the ordinary person and the options for its reform. Unravelling conflicting Indigenous and queer law reform agendas, the article ultimately concludes that provocation in South Australia should be abolished or reformed to exclude the homosexual advance defence. However, because racism and homophobia can manifest in murder trials despite legal change, a broader cultural shift must accompany the reform of provocation. The lessons of history from the frontier can help to show other ways of being ordinary, allowing a pathway for ordinariness itself to be coloured and queered. 
 Blore argues
In the early hours one morning in 2011, in a suburb south of Adelaide, an Aboriginal man killed a white man for offering to pay for sex. At his trial two years later, the accused sought to rely on the partial defence of provocation which operates to reduce what would otherwise be murder to manslaughter. The objective limb of the test of provocation centres on what an ‘ordinary person’ would do. The Full Court of the South Australian Supreme Court framed the case as one about sexuality, leading it to conclude that a non-violent homosexual advance, without more, can never provoke a lethal response from the ordinary person. On appeal, the High Court emphasised the racial dimension of the case and found that the ordinary person — inscribed with the Aboriginality of the accused — is capable of losing self-control and forming an intention to kill when confronted with a gay proposition. This article traces these conflicting narratives of race and sexuality to two revelations about the nature of the ordinary person. That the ordinary person must be placed in the shoes of an Aboriginal person reveals that the ordinary person is always already white. That the ordinary person is liable to kill in defence of their heterosexual honour reveals that the ordinary person is violently homophobic. 
By reference to deep-seated ideas about what is normal or ordinary, the ordinary person test draws upon societal norms with long histories, such as norms about gender. Indeed, the ordinary person test arose in Victorian England in tandem with particular norms about gender and violence in that era, which it continues to draw upon and enforce. This article proposes that the ordinariness of being white and violently homophobic has a similar cultural lineage. When the ordinary person test was first crafted in England in 1837, the Frontier Wars were being waged at the edges of colonial authority across Australia. The following year was marred by the Myall Creek Massacre, which stands out as emblematic of the brutal divide between colonists and Indigenous peoples, between ‘us’ and ‘them’. Around the same time, the Molesworth Committee reported to the House of Commons in 1838 that the transport of convicts had led to rampant homosexuality in the Australian colonies.4 Ordinary Australians suffer a collective amnesia about the Frontier Wars and the Molesworth Committee’s findings, but the collective shame reverberates today in received ideas of ordinariness. 
However, as a construct, the ordinary person is not predetermined by historical forces and can be changed. Options for reform include: eliminating the ordinary person test from provocation, adopting an ordinary Aboriginal person test, removing the homosexual advance defence from the ambit of provocation, and abolishing provocation altogether. This article argues that by one means or another, South Australia must address the homosexual advance defence. Yet each of these options for reform carries the risk of unintended consequences, such as contributing, even if marginally, to the over-representation of Indigenous people in prison. Reform may even fail to achieve the desired outcome of dispelling racist and homophobic narratives from the courtroom. The reason for this is that the ordinariness of being white and violently homophobic can manifest in spite of legal change. Therefore, law reform must be accompanied by a wider cultural change. The ordinary must be queered. 
Queer theory provides a useful lens through which to explore the limits of ordinariness. Broadly, queer theory sees established sexuality and gender norms — and by extension all norms — as social constructs which have been made, and which, therefore, can be unmade. On this account, there is nothing immutable about being white, a man, or a heterosexual, and this revelation of mutability offers a way to undermine their self-evident ordinariness. However, queer theory’s obsession with destabilising norms has given it a reputation for being anti-normative. The problem is that blameworthiness for killing — and the ordinary person test designed to capture that blameworthiness — is by definition normative. The need for a broader cultural shift to solve the problems posed by the ordinary person thus raises interesting questions for queer politics, not least of which is whether queer theory’s disdain for normativity lies so at odds with notions of the ordinary, that it is a theoretical impossibility to attempt to queer the ordinary. Drawing upon a branch of queer thought that places the queer inside the norm, this article argues that there is an avenue available for queering and colouring the ordinary from within. To do this, we must normalise the potential for the other in the ordinary. One way to draw out the potential for other ways of being is by recourse to history, by remembering forgotten perspectives from the ‘other’ side of the frontier and by remembering the homosexual potential of mateship on the frontier.

16 June 2019

Cy Pres in Buckley v Barlow

Noting the discussion of charitable purposes and the cy pres doctrine in Buckley v Barlow [2016] EWHC 3017 (Ch), a dispute about the proceeds of a church built for the controversial and now extinct UK sect the Church of the Holy Agapemony (the Agapemonites).

 The Agapemonites came into being in the 1840s under the auspices of Henry James Prince (1811-1899), a charismatic Anglican assistant curate (ultimately defrocked) who established a religious community - the Abode of Love -  in the Somerset village of Spaxton, where leading acolytes were persuaded to enter into ‘spiritual marriages’ with three wealthy spinster sisters, the Nottidges. That gave Prince control of their assets. In Nottidge v Prince (1860) 2 Giff 246 - reproduced here - the High Court heard that a fourth sister had been kidnapped from Spaxton by her brothers and placed in a lunatic asylum to protect her from Prince’s influence. The dispute is explored in ‘Religious Fanaticism’and Wrongful Confinement in Victorian England: The Affair of Louisa Nottidge’ by Joshua John Schwieso in (1986) 9(2) Social History of Medicine 159.

In 1856 Prince, having declared himself the Holy Spirit made flesh, announced that he would impregnate a virgin who would not become physically pregnant but would give birth to the spirit of the new Messiah. The vessel for this saviour was sixteen year old Zoe Patterson, with the union taking place on top of a billiard table in front of the whole congregation, while the Agapemonites sang hymns. Uncomfortably, Zoe gave birth to a girl named Eve.

 A former Anglican clergyman, John Hugh Smyth-Pigott, replaced Prince in the late 1880s. (Prince died in 1899, contraverting one of his claimes that he had abolished death, and was buried at Spaxton, standing upright to await the final dispensation. His successor Smyth-Pigott had joined the Salvation Army but left under a cloud. Attracting new, apparently predominantly middle class, adherents, the Agapemonites built a rather splendid building, complete with stained glass to the design of Walter Crane – the Ark of the Covenant - in the 1890s.

A trust was established in 1892, with 13 trustees (modelled on Christ and his 12 disciples). Ten years later Smyth-Pigott announced that he was The Second Coming (the Son of Man, judge of all, united with the Father). Unimpressed locals subsequently rioted and stormed the Ark, leading Smyth-Pigott to retreat to Spaxton, where he entered into a ‘spiritual marriage’ that saw adherents refer to his new family as the “Holy Family”.

The last adherent apparently died at Spaxton in 1956, with membership of the Agapemites having withered after Smyth-Pigott’s death in 1927.  Puzzlingly, the church had been registered in 1965 as a charity for the purposes of a religious body. In 2004 the UK Charity Commission wrote to the trustees saying that the registration was wrong, given that the Agapemonites were “held not to be a religious body” The Ark was sold in 2011 by the trustees to the Georgian Orthodox Church for around £1 million, with the proceeds being held in a solicitor’s trust account and with HM Revenue and Customs on account of any tax that might be due.

The trustees applied to the High Court for directions on disposal of the funds. Six granddaughters of Smyth-Pigott’s spiritual marriage - Catherine Jane Barlow, Margaret Campbell, Ann Buckley, Angela Patricia Ruth Webber, Victoria Jane Dyson and Sara Rachel Smyth-Riberio - invited the court to order that the proceeds be distributed to them on the basis that they were the only people left who had a connection with the Agapemonites.

 The High Court considered whether the trusts declared in the 1892 trust deed were charitable (on the basis of the advancement of religion) and hence whether they were exclusively for charitable purposes. The doctrine of cy pres - articulated in for example Mayor of Lyons v Advocate-General of Bengal (1876) 1 AC 91, Attorney General (NSW) v Perpetual Trustee Co Ltd [1955] HCA 9, Re Goods’ Will Trust [1950] 2 All ER 653, Rechtman v AG for the State of Victoria; AG (NSW) v Perpetual Trustee (1940) 63 CLR 209 and Re British School of Archaeology [1954] 1 All ER 887  means that if the trust was exclusively for charitable purposes but continuation of those purposes was impossible the funds could be be applied for other charitable purposes as similar as possible to the original ones. If not, the funds could be distributed to others. 

Simmonds J noted that the fundamental principle of UK trust law that “the courts do not take it upon themselves to pass value judgements on different religions, or different sects within religions”, consistent with “the long tradition of religious tolerance in this country, which has persisted for most of the last three centuries, at least”. The heterodox nature of Prince’s claims, which might be considered to be “foolish and delusional” did not disqualify the trust from charitable status. It might be valid if it had been established “with a view to extend the influence of Christianity”.

Importantly, the trust had been been established in 1892 under Prince’s leadership, ten years prior to Smyth-Pigott’s revelation of his divinity. The Court’s decision had to be based on Agapemonites’ belief system in 1892 (or what could be found of it) rather than subsequent years where under Smyth-Pigott the sect might be considered to have “crossed a line between eccentricity and downright blasphemy”. Bracingly, it was difficult to see why Smyth-Pigott’s claim to be the second Messiah should make the difference between charitable and non-charitable status. More importantly the Court should not allow the “delusions” and “dubious activities” of Prince and Smyth-Pigott to obscure the fact that the objects of the 1892 trust deed were to promote the religious activities of a body of people who constituted a recognisable Christian sect.

 Simmonds J stated that the six granddaughters did not claim to adhere to the Agapemonite’s religious principles. With the demise of the adherents many years ago it was no longer possible for the funds to be used for the sect’s religious purposes of the sect. Accordingly, the proceeds from the Ark of the Covenant should be applied in accordance with the doctrine of cy pres to a charitable scheme to be determined by the Charity Commission, rather than enjoyed by the sisters.