208 HARVARD LAW REVIEW. the refusal of a remedy in the principal case. Prince Albert v. Strange, 2 De G. & Sm. 652. The general result has been that with various reasons and in varying ways relief has been given in the case of some outrages against privacy ; but the existence of a special category of rights to privacy has not been clearly realized, or the limits precisely defined. Dixon v. Hoiden, L. R. 7 Eq. 488. The principle upon which a right against an invasion of privacy de- pends appears from a simple analysis of rights. Even crudest common law protected the person from more than mere batteries : it considered assaults and insults trespasses as well. The essential element in the tres- pass was the invasion of the person against the person's will. As sensa- tions grew more intense, that became an invasion of the person which a ruder age did not so consider. The redress for the invasion of privacy may then well be a modern phase of the protection given to the person since the ancient trespass. If this view be correct, any publication which invades the privacy of a private individual, or such privacy of a public individual as he had not forfeited by his position, is a priftia facie injury without more damage. Mandamus to a Governor. — New York State has joined the ranks of those who deny that a State court can control the governor by manda- mus. People v. Morton^ 50 N. E. Rep. 791 (N. Y.). The governor of New York is ex officio one of the Trustees of Public Buildings. In this capacity he is bound under a State statute to give preference to discharged Union soldiers as servants in the Capitol buildings, and, moreover, not to remove them except upon proof of incompetency. The statute is strin- gent ; it allows the soldier to enforce the rights thus conferred by man- damus. The relator in the principal case was a discharged Union soldier who ran the elevator in the New York Senate building until he was re- moved without cause. He thereupon applied for a mandamus to compel the trustees, among them the governor, to reinstate him. The Court of Appeals, however, with a single dissent, held that the mandamus against the governor could not be granted, and contented itself with a simple affirmation that the relator had been improperly removed, and was entitled to be reinstated. Questions of this sort are what test the balance of our constitutional form of government. Some courts, following the dictum of Chief Justice Marshall, that it is not the office, but the character of the act to be per- formed, that turns the scale, while refusing to interfere with the executive in regard to acts which call for the exercise of his discretion, issue com- mands to a governor to do acts in regard to which he has no choice when once he has read the statutes and applied the rules to the facts be- fore him. Tennessee <S^• Coosa R. R. Co. v. Moore, 36 Ala. 380 ; Marbury V. Madison, i Cranch, 3S0. But is not this proceeding a farce? With- out a resort ro the fiction invoked by Mr. Justice Haight in the principal case, that the governor is the successor of the king at common law, — which with all deference he is not, but rather an officer co-ordinate with the court, to both of whom separate functions are delegated by the sov- ereign people, — without the aid of that fiction, objections to this mandamus are revealed by a study of the theory of the Federal and State constitutions. Co-ordination and interdependence of the different branches of the government are the rule. Although the courts have the power of declaring what the law is, and so far seem to be above
