LEGAL ASPECTS OF THE ENVIRONMENT 605
New York, by a group of citizens, to restrain the Long Island
duck industry form discharging raw, untreated sewage
equivalent to that of a city of one million people into the
waters of Great South Bay, which was once one of the finest
shellfishing and marine recreation areas on the east coast of
the United States. The duck industry defended the action by
admitting that the eight million ducklings grown along the
estuaries of he Great South Bay did in fact deliver the raw
sewage effluent equivalent of a city of one million people
into the Bay, but that the Court should dismiss the action on
the grounds that such an affront to the public waters was so
great that it was a “public nuisance” not a “private nuisance”
and as a “public nuisance” it could only be attacked by the
Attorney General of the State of New York, not by any pri-
vate citizens, unless of course those private citizens could
establish “special damages” different from the damages sus-
tained by the public at large.
A New York Supreme Court, the same court that less
than a year later in a dramatic reversal of precedent would
issue that first injunction against the use of DDT ever granted
by a Court, dismissed the case against the duck industry,
accepting without question the argument that a public nui-
sance could not be abated by a private citizen or group of
citizens.
How could this strange concept have crept into the law
equity? What is the justification for this strange anomaly
in that body of law that holds no wrong may exist without
a remedy? In 1858, the Court of Appeals of the State of
New York identified the source and expounded the justifica-
tion for this onerous rule.
A contrary rule would be productive of very great
inconveniences... No private person or number of persons
can assume to be the champions of the community and in
its behalf, challenge the public officers to meet them in the
courts of justice to defend their official acts.
The court continued and discussed the theory of the
decision,The general rule is that for wrongs against the public,
whether actually committed or only apprehended, the
remedy, whether civil or criminal, is by a prosecution insti-
tuted by the state in its political character, or by some officer
authorized by law to act in its behalf....The principle is further exemplified in questions respecting
nuisances. Common or public nuisances, which are such
as are inconvenient or injurious to the whole community
in general, are, as all are aware, indictable [the People of
State can take action in a criminal proceedings] only, and
the not actionable [any citizen can sue]; for as Blackstone
[Blackstone ’ s Commentaries, Book 4, p. 167] says, “it
would be unreasonable to multiply suits by giving every man
a separate right of action for what damnifies him in common
only with the rest of his fellow-citizens.
Just who was Sir William Blackstone that he should
exert such a restraint on the general application of equi-
table principles? Referring to the eleventh edition of theEncyclopaedia Britannica, published in 1911 and drawing
on continual revisions from the first English edition in 1771,
the following information may be elicited under the entry,
“Blackstone, Sir William [1723–1780]:... In 1746 he was called to the bar. Though but little known
or distinguished as a pleader, he was actively employed
during his occasional residences at the university (Oxford),
in taking part in the internal management of his college. In
May 1749, as a small reward for his services, and to give him
further opportunity of advancing the interests of the college,
Blackstone was appointed steward of its manors. In the same
year, on the resignation of his uncle, he was elected recorder
for the Borough of Wallingford.... He accepted a seat on
the bench, and on the death of Sir Joseph (Yates) succeeded
him (in the court of common pleas). He died on the 14th of
February, 1780....
Blackstone was by no means what would now be called a
scientific jurist. He had only the vaguest possible grasp of
the elementary conceptions of law. Austin, who accused
him of following slavishly the method of Hale’s Analysis
of the Law, declares that he “blindly adopts the mistakes of
his rude and compendious model; missing invariably, with a
nice and surprising infelicity, the pregnant but obscure sug-
gestions which it proffered to his attention, and which would
have guided a discerning and inventive writer to an arrange-
ment comparatively just.”
From the small place which equity jurisprudence occu-
pies in his arrangement, he would scarcely seem to have
realized its true position in the law of England.
Bentham accuses him of being the enemy of all reform,
and the unscrupulous champion of every form of profes-
sional chicanery. Austin says that he truckled to the sinister
influences and mischievous prejudices of power, and that he
flattered the overweening conceit of the English in their own
institutions. “He displays much ingenuity in giving a plau-
sible form to common prejudices and fallacies....”
For more than a century the opinion of that one man has
stood in the way of a proper disciplined application of a fun-
damental principle of equity jurisprudence, “equity will not
suffer a wrong without a remedy.”
Just what happened at the time of Blackstone? It was
obvious that Blackstone set himself to the task of codify-
ing the laws of England, but in the process of attempting to
build a logical and consistent body of legal principles he lost
the basic insight of the Anglo-American system of jurispru-
dence, the common law.
The common law grew with civilization and the practices
and customs of society. As the oppressed peasants obtained
certain remedies during the Middle Ages, these remedies
became a part of the common law. That is why the Anglo-
American legal system depends on case law or precedent
rather than elaborate codes promulgated by a legislature or
king. A system of administering justice based on precedent
rather than stature is inherently more flexible and capable
of meeting the needs of society because the court is free toC012_001_r03.indd 605C012_001_r03.indd 605 11/18/2005 10:33:20 AM11/18/2005 10:33:20 AM