604 LEGAL ASPECTS OF THE ENVIRONMENT
system of remedial justice, but with gaps and defects where
sufficient remedies were not provided, and resort was neces-
sary to the ancient power of the king as the fountain of all
justice.
Equity did not directly contest the existence of settled
legal right. Rather, after recognizing those rights, equity
went on to insist that the holder of such legal rights if they
were acquired or retained unconscionably, or if they were
being used in an unconscionable attempt to interfere with the
fundamental rights of others, should be subject to the juris-
diction the “Chancellor” or the “Keeper of the Conscience of
the King” as the source of all legal rights.Equitable ReliefIt is a fundamental principle essential to the very existence
of organized society, and civilization as we know it, that
every person, in exercising personal rights and in the use
of personal property shall respect the rights and properties
of others. Every person must so conduct themselves in the
enjoyment of the rights and privileges which they may enjoy
as individual members of society in such a way that they
shall prejudice no one in their possession and enjoyment of
their personal rights or the rights they hold in common as
members of society. When there is an invasion of the rights
or privileges of the public or the rights and privileges of any
individual held in common by reason of the existence of
civilized society, the absence of exact precedent and the fact
that commentators on the law do not discuss the subject is of
no material importance in awarding equitable relief.
That the exercise of the preventive powers of a court of
equity is demanded in a novel case is not a fatal objection.
In social evolution, with the march of the arts and sciences,
and in the resultant effects upon organized society, it is quite
intelligible that new conditions must arise in personal rela-
tions, which the rules of the common law, cast in the rigid
mold of an earlier status, were not designed to meet. It would
be a reproach to equitable jurisprudence, if equity were pow-
erless to extend the application of the principles of common
law, or of natural justice, in remedying a wrong, which in the
progress of civilization, has been made possible as the result
of new social or commercial conditions.
Equity is the agency by which law is brought into har-
mony with society. It is one of the factors which operate in
judicial evolution. It succeeds legal fictions—those judicial
assumptions through which a rule of law is modified in its
operation—and it precedes legislation.
Equity has neither fixed boundaries, nor logical subdivi-
sions, and its origin, both in Rome and in England, was that
there was a wrong for which there was no remedy at law. As
Lord Chancellor Cottenham observed:
It is the duty of this court, [equity], to adopt its practice
and course of proceeding to the existing state of society and
not, by a strict adherence to forms and rule, under different
circumstances, to decline to administer justice and enforce
rights for which there is no other remedy... If it were neces-
sary to go much further than it is, in order to open the doors ofthis court to those who could not obtain [justice] elsewhere, I
should not shirk form the responsibility of doing so.^ †^
A distinguishing feature of equity jurisdiction is that it
will apply settled rules to unusual conditions, and mold its
decrees so as to do justice between the parties.
Peculiar and extraordinary cases will arise in the com-
plex and diversified affairs of men, which perhaps, cannot be
classed under any of he distinct heads of equity jurisdiction,
but which must be acknowledged, nevertheless, to come
within the legitimate powers of a court of equity because
complete justice cannot otherwise be done between the
parties. Therefore, when no remedy exists at law, courts of
equity, to prevent injustice and in many cases on principles
of general policy, will go far in granting relief.
Such was the law of equity at the start of the eighteenth
century. If that rule of law had been developed with vigor
much of the human and environmental degradation of he
Industrial Revolution might have been avoided.
Since that time, two anomalous rules have evolved,
interfering with the principle that for every wrong there is
a remedy. The first of these anomalies concerns the arti-
ficial distinction between public and private nuisance and
the second is the doctrine of “sovereign immunity.” Both
of these doctrines can be attributed to the meddling of Sir
William Blackstone (1723–1780).Public and Private NuisanceUntil Blackstone there was no distinction made between public
and private nuisance. The rule had been well established that
any individual could apply to a court of equity to abate a
nuisance. But during the later part of the eighteenth century,
Blackstone created a new rule of law that was to represent a
classic manifestation of the obfuscation of simple legal princi-
ples by “self-proclaimed” legal scholars. This new rule of law
proclaimed by Blackstone was to contribute substantially to
the environmental and social crises of today and represents the
kind of antisocial perversion of the law that made the common
law of England during the seventeenth, eighteenth, and nine-
teenth centuries such an inviting target for the diverse talents
of William Shakespeare, Jonathan Swift, Charles Dickens, and
W.S. Gilbert.
Blackstone created a difference between public and
private nuisance, and the significance of that difference is
to be fond in the criteria for abatement of the public nui-
sance: (1) only a public nuisance may be made the basis for
a criminal prosecution, and (2) only the public, through he
proper officer, may sue to enjoin or abate a public nuisance,
in the absence of special damage to a particular private
individual—damage which is substantially greater than that
suffered by other individual members of society—a public
nuisance is subject to correction only at the hands of public
authority. The mischief done and the disastrous consequence
of Blackstone’s whim are still evident.
In 1965, an action was brought on behalf of the people
of the Town of Brookhaven, in the County of Suffolk,† Wallworth v. Holt 4 Myl & C619, 41 Eng. Rep. 238 (1984).C012_001_r03.indd 604C012_001_r03.indd 604 11/18/2005 10:33:20 AM11/18/2005 10:33:20 AM