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employees for special treatment, dealing with both sides alike, is beyond criticism on principles often asserted by this court. And especially I think that, without legalizing the conduct complained of, the extraordinary relief by injunction may be denied to the class. Legislation may begin where an evil begins. If, as many intelligent people believe, there is more danger that the injunction will be abused in labor cases than elsewhere, I can feel no doubt lof the power of the legislature to deny it in such cases.' ....

I must add one general consideration. There is nothing that I more deprecate than the use of the 14th Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect.” . ..

i Several citations have been omitted from this opinion. Justice Holmes thought that the invalidity of 1 1464 necessarily nullified [ 1456; see 428, supra, n.2. The state court should not be required to issue an injunction that has never been authorized by the legislature, which might prefer to have injunctions altogether impossible if the desired exception can not be allowed. Justice Brandeis concurred in this opinion.

2 Accord with Truax v. Corrigan, Goldberg v. Stablemen's Union, 149 Cal. 429 (1906); Bogni v. Perotti, 224 Mass. 152 (1916). See 10 Cal. L. Rev. 237; 94 C. L. J. 1, 55; 22 Colum. L. Rev. 252; 30 Harv. L. Rev. 75; 7 Va. L. Reg. 694; 8 Va. L. Rev. 298; 28 W. va. L. Q. 144; 16 A. L. R. 240; 27 A. L. R. 411, 658; L. R. A. 1916F, 831.

CHAPTER V

Perhaps Bondse of an injungo gives'inte

PROTECTION OF PUBLIC AND SOCIAL INTERESTS 1 Early History of Public and Social Interests in Equity. The original criminal jurisdiction of Chancery, which became obsolete with the rise of the Star Chamber has already been noticed. 35, supra; 1 Spence, Eq. Jur. Ct. Ch. 684; E. S. Mack, “ The Revival of Criminal Equity," 16 Harv. L. Rev. 390, gives interesting examples. The first instance of an injunction against a public nuisance is perhaps Bond's Case, Moore, 238, No. 372 (1587). This was an English information in the Exchequer by the Queen, who held a reversion, against the tenant for years, who was building a pigeon-house. This was held to be a common nuisance, "et pur ceo ils grant injunction a luy que il ne construer." Aside from the cases under Charles I discussed in Atty. Gen. v. Richards, infra, no injunction is reported until that case in 1795. However, in Baines v. Baker, 1 Amb. 158 (1752), Lord Hardwicke in refusing an injunction against the building of a small-pox hospital as a private nuisance, said, that if a nuisance at all it was public, and, “If a public nuisance, it should be an information in the name of the Attorney General.” Although he may have meant an information in Chancery, some doubt is raised by his going on to cite a case in 1736, Duke of Grafton v. Hilliard, 1 Amb. 160n., in which Lord King refused to enjoin a brick-yard as a private nuisance, saying that he could not determine on motion whether this was a nuisance, and recommending to the Attorney General to prefer an information in the Court of King's Bench. Chancellor Kent infers that Hardwicke also referred to a criminal information, and says the equity jurisdiction lay dormant for a century and a half, from Charles I until 1795. 2 Johns Ch. 380, 382.

A different line of cases in the seventeenth century is discussed by W. Harrison Moore, Act of State in English Law (1906), 24, 85. In these Chancery took jurisdiction of a controversy on the ground that it involved "matter of state.” Thus in 1631, the Corporation of London issued bonds as a means of floating a loan to the King Charles I. Suits by the bondholders against the Corporation were enjoined. Mayor etc. of London v. Bennet, 1 Rep. in Ch. 24. An attempt to obtain similar equitable relief was made by the bankers when the Exchequer was closed by Charles II. W. H. Moore, op. cit., 24. In two cases bills by Danes based on a treaty were entertained in Chancery, the plaintiff insisting “ that the Chancery was a court of state.” The purpose was to enjoin actions of debt on the ground that the amounts due had been confiscated by the Danish government in the recent war. Weymberg v. Touch, 1 Cas. Ch. 123 (1669); Troner v. Hassold, ib. 173 (1670). See also Stock v. Denew, ib. 305 (1677). In Blad v. Bamfield, 3 Swans. 604 (1674), Lord Nottingham enjoined actions at law for the confiscation of the property of British subjects fishing in Iceland waters; the controversy turned on the Danish treaty and patent. He said it was “ directly a case of state,” and “that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd.” See also R. v. Carew, 3 Swans. 669 (1679), involving letters of marque and reprisal against the Dutch.

1 A classification of public and social interests, with references, will be found in R. Pound, Outlines of Lectures on Jurisprudence (3d ed.), 82–88.

In the Company of Stationers' Case, 2 Ch. Cas. 76 (1681), Nottingham granted a preliminary injunction against the pirating of statute books, "for the printing of the laws was matter of state and concerned the state"; whereas the pirating of “The Whole Duty of Man" would not be enjoined until after an action at law. A different position was, however, taken by Lord Keeper Guilford the following year. Upon a motion to stop the sale of English Bibles printed beyond sea, it was urged that “the Chancery was a court of state " and that relief should be given on the “politic account” of the great mischief that might arise as well as to prevent injury to the persons authorized by the King to print Bibles. The Lord Keeper directed a trial of the right at law, saying, “I do not apprehend the Chancery to be in the least a court of state.” Anon., 1 Vern. 120 (1682). Yet, as late as 1720, Parker, C., stated that Chancery “had a superintendency over all books,” and could restrain those reflecting on religion or morality, although there was no infringement of copyright. Burnett v. Chetwood, 2 Mer. 441n.; Pound, Cas. on Eq. Rel. against Defamation, 9.

The reluctance of equity to enjoin public nuisances continued for some years after Atty. Gen. v. Richards, infra. In 1799, on a petition by the Mayor of London to enjoin putting any more sugar in some old houses which had been turned into warehouses and were about to fall from the weight, Loughborough, C., made the prohibitory order, but said that the Mayor could apply a much more effectual remedy by ordering himself the houses to be shored up and the weight removed, which the Chancellor could not order. “I can only interfere as between landlord and tenant." Mayor v. Bolt, 5 Ves. 129. In 1811, when the Attorney-General filed an information against an offensive soap factory, Lord Eldon hesitated to grant even a temporary injunction. The motion stood over, as the parties agreed on an early trial at law, and the case was eventually compromised. Atty. Gen. v. Cleaver, 18 Ves. 210. However, the Court of Exchequer this same year granted two injunctions against more obstructions in Portsmouth Harbor, Atty. Gen. v. Burridge, 10 Pri. 350; Atty. Gen. v. Parmeter, ib. 378, affd. by the House of Lords, ib. 412; and Eldon followed the Exchequer and issued an ex parte order against obstructions of the Thames in 1819, distinguishing the Cleaver case as barred by laches. Atty. Gen. v. Johnson, 2 Wils. Ch. 87. See also his opinion in Crowder v. Tinkler (1816), supra, 56. A similar reluctance to recognize jurisdiction over public nuisances was shown by early American judges, Kent, C., in Atty. Gen. v. Utica Ins. Co., 2 Johns. Ch. 371 (1817); Henderson, J., Atty. Gen. v. Hunter, 1 Dev. Eq. 12 (1826), enjoining unhealthy pond because in state capital; Parker, C. J., Charles River Bridge v. Warren Bridge, 6 Pick. 376, 398 (1828); Vroom, C., Atty. Gen. v. N. J. R. R. & T. Co., 2 Gr. Ch. 136, 139 (1834)

Alternative Methods for Abatement of Public Nuisances. (1) Summary abatement by administrative officials, e.g., police. Lawton v. Steele, 152 U, S. 133 (1894); North Am. Cold Storage Co., v. Chicago, 211 U. S. 306 (1908); F. J. Goodnow,“ Summary Abatement of Nuisances by Boards of Health,” 2 Colum. L. Rev. 203 (1902); T. R. Powell, “ Administrative Exercise of the Police Power," 24 Harv. L. Rev. 336 (1911). Although a private citizen may abate a private nuisance injurious to him when he could also bring an action, he may not abate a public nuisance. Brown v. Perkins, 12 Gray 89, 101 (1858); S. v. Stark, 63 Kan. 529 (1901). (2) After conviction in a criminal prosecution, the defendant may be ordered by the court to abate; his disobedience is contempt of court, and also the sheriff may then be ordered to abate at the defendant's expense. Campbell v. S., 16 Ala. 144 (1849); Taggart v. Commonwealth, 21 Pa. 527, 530 (1853). (3) Possibly the defendant in a criminal prosecution may be put under bonds to stop a nuisance consisting of repeated acts. Schofield, 8 Ill. L. Rev. 29. (4) Formerly writs of prohibition were granted to stop the continuance of public nuisances pending the filing and trial of an indictment, and perhaps when no indictment was contemplated, but this remedy is obsolete according to Lord Ellenborough. King v. Justices of Dorset, 15 East 594 (1812); Schofield, loc. cit., note.

ending itment Ellenboroveit,

1 For historical discussions, see 2 Waterman's Eden, Injunctions (3d ed.), 262; A. C. Rounds, 9 Harv. L. Rev. 523; Schofield, 8 Ill. L. Rev. 20.

ATTORNEY-GENERAL V. RICHARDS

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dupravenly hin. THE ATTORNEY-GENERAL v. RICHARDS.

EXCHEQUER, 1795..

(2 Anstruther, 603.] [ This information stated, that, by the royal prerogative, the sea and seacoasts, as far as the sea flows and reflows between the high and low water-marks, and all the ports and havens of the kingdom, belong to his Majesty, and ought to be preserved for the use of his Majesty's vessels and others, and that his Majesty has the right of superintendency over them for their preservation.

It then stated that the defendants in 1784 erected a wharf or key, two docks, and other buildings, between high and low watermark, in Portsmouth Harbor, adjoining to Gosport, so as both to prevent the boats and vessels from sailing over that spot or mooring there; and also to endanger further damage to the harbor, by preventing the free current of the water to carry off the mud. The information therefore prayed that the defendants might be restrained from making any further erections, that those made might be abated, and the harbor restored to its ancient situation.

The defendants claimed to hold the soil of the place in question under letters-patent, 14th July, 4 Ch. I.'......

It was proved that the embankment was highly prejudicial and dangerous to the harbor, and that it was peculiarly hurtful to the town of Gosport, by preventing boats from coming immediately up to the town on that side as formerly.

This case was argued during the term by the Attorney-General and Solicitor-General, Alexander, Campbell, and Percival for the Crown. The prima facie right of the Crown to all ports and arms of the sea, and the soil thereof, is clearly established. The nature of that right is explained by Lord Hale in his treatises De Jure Maris and De Portibus Maris. (See Mr. Hargrave's Law Tracts). It is there shown (p. 12) that the king has the soil of the seacoast and havens, and is entitled to the profits thereof as a jus privatum; and so far as it is considered in that light merely, he may grant it away. But he has also (pp. 81, 83, 88, 89) another right in the arms of the sea, the right of a free passage for all his subjects, and others, and of having all havens and branches of the sea preserved from nuisances for that purpose. This is a right similar to the king's property in highways, a mere jus publicum vested in the king for the use of the subjects. This, by its nature, is unalienable, and shall prevail against any claim set up against it. Lord Hale, De Jure Maris, 12; De Jure Portibus, 85.

Where any invasion of the jus privatum of the Crown, in arms of the sea or ports, takes place by encroachment on the soil, it is a pur

1 The arguments and decision as to the invalidity of the defendants' claim are omitted, as well as most of the argument of their counsel on other points.

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