Innovation Principle and Ctizen Fintech?

'The Case for an Innovation Principle: A Comparative Law and Economics Analysis' by Aurelien Portuese and Julien Pillot in (2018) 15(2) Manchester Journal of International Economic Law comments

 After the rise of the precautionary principle (or approach) in the late 1990s in a number of jurisdictions, the economic consequences of this newly created principle of law have unfolded. Such consequences were either acclaimed – for providing a minimisation of a number of externalities – or lambasted – for providing justificatory grounds for the prohibition of potentially propitious innovations due to the existence of scientific uncertainties. 

Whereas innovation has increasingly become of salient importance in today’s economies, European economies face sluggish economic growth rates partly caused by a regulatory framework where risk-aversion is incentivized. The precautionary principle induces and favours risk-aversion at the expense of innovation. 

This Article discusses the law and economic foundations and implications of the precautionary principle in the WTO, the European Union, France and the United Kingdom. Having introduced the importance of law in stifling innovation and discussed the current precautionary principle, this Article vouches for an innovation principle to come to the fore in order to counterbalance the innovation-costly precautionary principle. A number of recommendations are proposed at the end of the article.

"Money's Past is Fintech's Future: Wildcat Crypto, the Digital Dollar, and Citizen Central Banking' by Robert C Hockett in (2019) 2 Stanford Journal of Blockchain Law and Policy comments 

I argue that crypto-currencies will soon go the way of the ‘wildcat’ banknotes of the mid-19th century. As central banks worldwide upgrade their payments systems, the Fed will begin issuing a ‘digital dollar’ that leaves no licit function for what I call ‘wildcat crypto.’ But the imminent change heralds far more than a shakeout in ‘fintech.’ It will also make possible a new era of what I call ‘Citizen Central Banking.’ The Fed will administer a national system of what I call ‘Citizen Accounts.’ This will not only end the problem of the ‘unbanked,’ it also will simplify monetary policy. Instead of working through private bank ‘middlemen’ that it hopes will lend QE money to borrowers during a downturn, the Fed will be able to do ‘helicopter drops’ directly into Fed Citizen Accounts. And rather than rely solely on interbank lending rate hikes or countercyclical capital buffering during periods of froth, the Fed will be able to impound money through the more ‘carrot-like’ measure of interest credited to those accounts. We are at last on the verge of establishing a true ‘Fed for the People.’

Discrimination in the US Sharing Economy

'Law and Norms in the Market Response to Discrimination in the Sharing Economy' by Naomi Schoenbaum in (2019) 13 Law and Ethics of Human Rights Journal 1 comments

 Sharing-economy firms have opposed the application of antidiscrimination law to their transactions. At the same time, these firms have heralded their ability to achieve antidiscrimination aims without the force of law, and have adopted various measures to address discrimination. This Article documents and assesses these measures, focusing on the relationship between law and norms. Relying on the sharing economy as a case study, this Article shows how law can play a crucial role in spurring antidiscrimination efforts by firms that it does not regulate, but also how antidiscrimination law might nonetheless be undermined by these voluntary efforts.

Statehood

'The Metaphysics of Statehood' by David Tan in (2018) 31(2) Canadian Journal of Law and Jurisprudence comments

 This paper considers the connections between the Statehood/recognition debate in international law and social ontology. I aim to show that certain theories of social ontology, which I call Groupjective Internalism, can be used to defend Constitutive Theories of Statehood. Among philosophers whom I consider committed to Groupjective Internalism are major figures in the field: Searle, Gilbert and Tuomela. This is an interesting result as Constitutive Theories are generally looked upon with suspicion in international law. In one of the classic texts on States in international law, James Crawford notes that

‘[a] State is not a fact in the sense that a chair is a fact, it is a fact in which a treaty is a fact: that is, a legal status attaching to a certain state of affairs’.

This seems like a proposition about metaphysics (i.e. a proposition about the nature of reality). How can we distinguish between facts about institutions (such as States) and facts about things like chairs? If we do discover the nature of institutional facts, then what does this tell us about Statehood? What are these existing state of affairs that Crawford claims the status of Statehood is attached to? Despite the similar questions both metaphysicians and international lawyers are asking, little research has been done to place debates about State recognition within the framework of analytic metaphysics. 

This paper attempts to remedy this gap and show that metaphysical enquiry can shine light on debates in Statehood formation. In particular, there is a subdomain of metaphysics called social ontology that explains the nature of social and institutional facts. The main goal of this paper is to show that social ontological theories classified as Groupjective Internalism can be used to defend Constitutive Theories of Statehood formation. Constitutive Theories are theories that require entities be recognised by other States in order for those entities to be States. This is a significant conclusion as Constitutive Theories are not well regarded by many international lawyers. One caveat is that this paper aims to show that Constitutive Theories are true if Groupjective Internalism is true. This paper will not defend Groupjective Internalism itself but I argue in Section 2.1 that assuming its truth is neither problematic nor uninteresting. 

This paper’s argument is roughly as follows: Internalist theories of social ontology posit that the existence of institutions (including States) depend on certain groups of people having beliefs about those institutions (e.g. believing that States exist). Hence, States exist only in virtue of some group believing that they exist. Who are these groups of people that must believe recognise that some entity is a State? I will introduce the notion of Groupjectivity, a term coined by Tuomela, to show that these groups must be other States. Since both Internalism and Groupjectivity stipulate that some entity is a State only when other States believe that it is, this is tantamount to the Constitutive Theory. Lastly, I show that social ontology can also deal with the problem of relativism which is frequently raised against Constitutive Theories. 

Section 1 will introduce social ontology and will explain why it is important for debates about Statehood. Section 2 will then introduce Groupjective Internalism. Lastly, Sections 3 and 4 provide a defence of Constitutive Theories of Statehood.

Foucault

'Foucault’s Clay Feet: Ancient Greek Vases in Modern Theories of Sex' by Caspar Meyer in (2018) 85 History Workshop Journal 143–168 comments

Although Michel Foucault never mentions the objects explicitly, his work on ancient Greek sexuality depends in critical aspects on evidence from sex scenes on ancient Greek pottery. The significance of the images comes to the fore in his argument concerning the radical difference of the gender-blind ethics of desire in Greek antiquity from the gender-based norms of modernity. In the overarching narrative of his multi-volume genealogy of modern sexuality, the alterity of Greece underlines his broader contention about the discursive basis of sexual experience. This article confronts the historiographical biases that led Foucault to disregard the material nature of his sources and explores the implications this silence spelled for his successors. Its argument evolves around the disciplinary instruments which scholars employ to contain three-dimensional objects within the bounds of verbal explanation. Two-dimensional copies, in particular, enable historians to isolate vase images from their contexts of consumption and redeploy them strategically to support unrelated arguments. The discussion first takes a critical look at the archives of vase images that made possible, or responded to, Foucault’s synthesis, and then turns to the possibilities of interpretation which the sex scenes hold out when reunited with their ceramic bodies. Of special interest are the manual operations involved in experiencing the artefacts in convivial settings and the interdependencies of painted and potted forms that mark the objects as intentionally subversive and open-ended. Despite its criticism, this essay is itself Foucauldian in its effort to cultivate critical historiography. Its goal is to perform a ‘genealogy’ of Foucault’s genealogy, with a focus on the objects and practices which sustained the debate on Greek homosexuality as one of scholarship’s foremost contributions to the liberationist projects of the twentieth century. 

Meyer argues

 Every now and then specialists of ancient Greek vase-painting need reminding how strange the objects they study really are. Figured painting, to modern eyes, almost always presupposes either a flat surface, such as a framed canvas or a page in a book, or repetitive compositions, if the painting is applied as an ornament on an object. Greek vases combine a seemingly infinite variety of images with an equally variable range of pottery shapes, relating to eating, drinking, storage and domestic production. Neither flat nor repetitive, the objects defy modern categorizations of ‘art’ and ‘ornament’. No wonder that ever since their first discovery in the ancient necropoleis of Italy, the contrast between the pictorial sophistication of the decoration and the mundaneness of its medium has generated disagreements about how Greek painted vases should be evaluated. Where early modern antiquarians were primarily interested in the technology and ritual implications of the vessels themselves, eighteenth-century aesthetes saw their figural decoration as fine art that just happened to have been applied to a ceramic shape. A persistent feature in settling these debates was the preference for invoking external evidence, usually from the textual tradition of antiquity. In iconographical study, for instance, which remains one of the dominant modes of approaching the material, texts are adduced to identify mythological subjects in the decoration. In a related manner, archaeologists rely on stylistic seriations of excavated pottery to connect individual deposits and cultural layers in the stratigraphy of sites with historical events mentioned in the sources, most often foundations and destructions of cities. 

The interest of such text-based approaches is limited if they are employed, as is often the case, to confirm facts already known from the sources. We already know from Homer that Athena carried an aegis (an animal skin bearing the beheaded Gorgon’s face for protection), and we already know from Herodotus (or have little reason to doubt his claim) that the Persians destroyed Athens’s public monuments when they sacked the city in 480 BC. If text-derived explanations are at best a starting-point for other forms of enquiry, their usefulness breaks down in discussions of subjects that bear little or no direct relationship to surviving texts, which is often the case in Greek vase-painting. The imagery on Greek vases encompasses an extraordinary range of subjects which reveal no easy match with known myth or history, among them many scenes of figures engaging in sexual activities. How can such ‘vernacular’ representations produce reliable descriptions of ancient life, especially if they show acts of a kind only alluded to in the sources? 

The relevance of Greek vases to the study of sexuality goes much further than the mere coincidence of subjects. The study of sexuality and Greek vases alike has all too often been conducted in a conceptual vacuum that excludes bodies from the sphere of verbal explanation. In the example of Greek pottery the images of the painted decoration have come to be studied as a visual discourse analogous to the elite discourses familiar from ancient texts, rather than as the embodied practices of those who once used the objects. Studies of sexuality purport to speak about the sexual feelings of individuals, but seek to rationalize those feelings in an analytical domain of structures and relationships which those engaging in sex cannot consciously be aware of. 

I venture to say that Michel Foucault, the thinker who did more than any other to define this term’s modern usage, would have agreed that ‘sexuality’ is a profoundly strange concept. Foucault was suspicious of intellectuals who claimed to speak in the name of truth and justice for others. He rejected universal systems of morality, however noble their goals, in favour of examining specific problems and the answers given by those facing them. His commitment to actor-centred historiography is brought out in his distinction between ‘polemics’ and ‘problematizations’: that is, between answers to political issues formulated on the basis of pre-existing theories or doctrines and those that take as their starting-point the challenges through which individuals experience their existence as social beings.1 And yet, when Foucault wrote about sexuality many of his readers were left wondering how far the discourses of sexuality which he identified so masterfully in different historical contexts actually corresponded with individuals’ experiences in the given place and time. When are his (or any other) discussions of sexuality also about sex, and when are they not? 

Past commentators have considered the ambiguous scope of his statements about sexuality to be an outcome of the methodological shifts in his oeuvre from what he called ‘archaeologies’ to ‘genealogies’, and back again. Foucauldian discourse analysis, as has often been pointed out, went through different stages, from the more structuralist and text-bound archaeologies of his earlier writings to the later genealogies concerned with the embodiment of discourse in social power.2 While his genealogical approach tried to extend his analytical categories to practices beyond the world of texts and linguistic expression, it received only one comprehensive treatment, in Discipline and Punish (1975), and remained more a repertoire of strategic choices than a coherent theory.3 Furthermore, his late work on ancient sexuality presents a marked return to his archaeological mode of exploring the structures of discourses without much focus on their correlation with power and practice.  

This reversal in his method may reflect the unfinished state of his multi-volume history of sexuality, as is often surmised. But in this article, I argue that the flight from the realm of bodies and objects originates far more in the traditional embarrassment about materiality in academic historiography. The embarrassment about ‘things’ in this specific instance manifests itself in the implicit manner in which evidence from Greek painted vases has been subordinated to the demands of verbal explanation.

Defamation

Off to the HCA? In Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australia News Channel Pty Ltd [2019] NSWSC 766 the NSW Supreme Court has determined that Fairfax, Australian News Channel (Sky) and Nationwide News are for defamation purposes the publisher of third-party comments on their public Facebook pages.

The Court was satisfied that the media companies were, on the balance of probabilities,  a first or primary publisher because each  is ultimately the 'owner' of a public Facebook page with the ability to allow the public to access comments authored by a third-party user.

In the judgment Rothman J considered the manner in which a public Facebook page operates and the process by which third-party comments are published on such a  page. Each of the three defendant companies posted a hyperlinked snippet of an article from their sites, usually accompanied by a photograph or a video under which anyone with a Facebook account could comment. The Court noted evidence indicating the importance to the defendants of readers providing such comments, ie increased exposure and consequent advertising revenue.

The judgment states

... cross-examination of each of the defendants’ witnesses concentrated on the likelihood of inappropriate comment to controversial postings by the defendant, as one aspect upon which the defendant could rely in terms of limiting the monitoring that might otherwise be necessary. The evidence, however, was that controversial comments could occasionally (although rarely) be excited by wholly innocuous postings by the media company. 

Mr Love made it clear that the primary purpose of Australian News Channel was to interest readers and have them gain access either to the Australian News Channel website or some other digital publication of the news, rather than the snippet on the public Facebook page. There is an assessment made of the risk associated with particular stories having an adverse effect on the person or persons who is or are featured in the story. 

Mr Love accepted that the uploading of the editorial from the Andrew Bolt program was likely to provoke comments. One of the comments to the Bolt editorial is a matter about which the plaintiff complains. 

Yet, on the evidence of Mr Love, no consideration was or is, as a system or otherwise, given to whether the sort of comment about which complaint has been made was a likely comment to the editorial, when the editorial was selected for placement on the public Facebook page. In other words, although Australian News Channel assessed its comment, it conducted no assessment of likely reactions. 

Nor was there any consideration to the sort of comment that was likely to flow from the posting by the defendant, Australian News Channel, from the plaintiff himself stating that nobody deserved to be treated in the way that he was. 

There are over 15 million Australian Facebook users which, when one omits from the Australian population those over 60 years of age and under 6 years of age, is significantly more than half of the Australian population. Mr Love agreed that nothing specific is done about considering the risk that people who are intolerant and irresponsible may be posting comments on the organisation’s public Facebook page. 

Mr Love accepted that the organisation could, effectively, block any comments by choosing a significant number of ordinary words that would be required to be contained in every comment. In doing so, Mr Love pointed to the resourcing issue that this would create. In his words, it would take the Australian News Channel some time to look through the 7,000 comments that they would receive every day to decide what was acceptable. The evidence suggests it takes no more than an average of 10 seconds (T, p 159 per Pfeiffer) to review a comment, in which case 7,000 comments per day (the greatest number of comments on any of the defendants’ pages on any day) would require the equivalent of an additional 2.5 employees, assuming, contrary to the evidence, that no work hours are currently expended on the task. 

If all comments were hidden, in the manner suggested, Mr Love saw that as a “free speech” issue and, although he was uncertain about it, an issue that may affect the Facebook algorithm, which may affect the organisation’s overall performance on Facebook. The ultimate fear was that there would be overall fewer comments, because the blocked comment would not be seen and would not, as a consequence, excite further comments. The organisation, Australian News Channel, monitors the popularity of the Facebook page (or each of its public Facebook pages) and compares it to the ratings received by other publications of a similar kind. 

Ms Ryan was cross-examined (as were each of the witnesses) on essentially the same subject matters. Her evidence is to the effect that the Facebook page was operated for the benefit of Nationwide News, being an exercise to seek to increase the awareness of the publication, being The Australian Newspaper and increase the audience or readership of the newspaper. About half the articles that were published in The Australian were selected for placement on the Facebook page. 

The link on the Facebook page would take a reader to The Australian Newspaper. Initially, when Ms Ryan first commenced in her current position, a reader could then read up to three articles from The Australian without payment. About halfway through the period of her employment, the number of articles that a reader could read without payment reduced to one article. 

Again, Ms Ryan attested to the existence of two filters: one operated by Facebook known as “Profanity Filter”, which an owner of a public Facebook page could opt into at three different levels (“off”, “medium”, or “strong”); and one operated by the owner itself known as “Page Moderation”. The Facebook filter generally operated in relation to certain well-known profanities and would exclude from the public Facebook page any comments that contained one of those profanities. Again, Ms Ryan sometimes used the term “blocked” to include a comment that was “hidden” to the general public. 

Monitoring each comment and deleting it requires a significant effort. Less effort is required if the comment is to be hidden because automatic filters can operate. Again, Ms Ryan testified that by utilising the filtering mechanisms to catch common words, such as all of the pronouns and the like, the vast bulk of comments, and possibly all of the comments, would be hidden. 

If all the comments were hidden pending approval, the original article, placed on the page by the media owner, would appear in exactly the same way as it would otherwise. Further, any member of the public could share the article in exactly the same way as it may be shared otherwise; liked in the same manner; but there would not be any visible comments, except to the Administrator of the page, the third-party commentator in relation to the comment placed by her or him and Facebook friends of the commentator. 

In answering the question as to why such a course was not implemented, Ms Ryan said: “Because it would involve someone sitting and un-hiding comments all day. It would, people would still be able to post pictures, memes. They would still be able to post comments without using the filter. I think people would get frustrated with their comments not appearing on the page. It, ... in my opinion it wouldn’t make sense.” (T, p 102.) 

If, on the other hand, the assumption made by Ms Ryan did not operate and no one ever “unblocked” or rendered the comment “un-hidden”, it would require no additional staff, but there would not be any comments that could be seen by the public, other than the defined class of members of the public that were Facebook friends of the person placing the comment or blog on the public Facebook page. 

At the moment, according to Ms Ryan, if Nationwide News posted a controversial article on, perhaps, a controversial person, where the staff assessed that members of the public had a certain level of vitriol towards that person or that situation, the staff will monitor that article and its comments closely, or more closely, and hide and/or delete comments, where needed. Ms Ryan explained that the reference to monitoring more closely meant perhaps five or six times a day. Nevertheless, it would involve looking at each of the relevant comments. 

Ms Ryan was asked some questions about the article that was placed by Nationwide News on the public website and accepted that the article was not favourably disposed to the plaintiff, but could not say whether any member of staff at Nationwide News assessed whether posting the article would excite members of the public to comment adversely about the plaintiff. Apparently, no system is in place for such an assessment or for action to be taken if, notwithstanding the absence of a system, an assessment were to have been made. 

Ms Ryan accepted that seemingly defamatory material was a “thoroughly predictable” result of posting the relevant article onto the public Facebook page. Further again, Ms Ryan was unable to say whether any monitoring occurred of the comments in relation to the plaintiff. 

As the evidence of Ms Ryan makes clear, it is important to Nationwide News that there are comments on the webpage, amongst other reasons, because it motivates others to comment and the greater the number of comments, then the rating for the public Facebook page becomes higher, which, in turn, markets the page to a greater number of members of the public and, in turn, markets the newspaper to a greater number.

The Court found that each company had the capacity to hide each comment until the comment was scrutinised and approved/rejected. That would require additional resources, considered to involve the equivalent of 2.5 employees and that would include some work already performed. Each of the defendant’s witnesses accepted that the Facebook posts about the plaintiff were likely to provoke comments that were critical of Mr Voller, including some that would be defamatory.

Rothman J held that in relation to a public Facebook page, comments authored by a third-party user were solicited, invited and by the owner. The Court contrasted that  welcome with  the unauthorised publication of defamatory posters on bus shelters, discussed in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81–127. In Urbanchich the the defamatory posters were placed on bus shelters without authorisation by the Council (owner of the property), in  locations not constructed to host posters.

The Court differentiated a public Facebook page from a Google search, referring to Google Inc v Duffy (2017) 129 SASR 304 in which the Full Court in South Australia discussed the principles and conditions for which Google would be liable for defamation. The Court distinguished the Voller dispute from Murray v Wishart [2014] 3 NZLR 722 where the New Zealand Court of Appeal dealt with an individual’s Facebook page, not a public Facebook page.

Rothman J  considered the salient distinction was that an individual Facebook page does not allow comments to be vetted in advance by hiding comments. A public Facebook page does allow that vetting through its filters. The Court favourably considered the analogous circumstance discussed in Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366; [2013] HKCFA 47. In Oriental Press  the Hong Kong Court of Final Appeal determined that the defamatory comments were the result of the respondents having facilitated speech  in a forum hosting a large volume of communications rather than being the originators of the defamatory comments.

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.