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PRIVATE NUISANCE

DEFINITION

Private nuisance is a continuous, unlawful and indirect interference with the use or
enjoyment of land, or of some right over or in connection with it. Lord Lloyd in Hunter v
Canary Wharf [1997] 2 All ER 426, stated that private nuisances are of three kinds. They
are (1) nuisance by encroachment on a neighbour's land; (2) nuisance by direct physical
injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet
enjoyment of his land.

Proof of damage is usually necessary.

Foreseeability of harm is a prerequisite of the recovery of damages in private and also
public nuisance: per Lord Goff, Cambridge Water v Eastern Counties Leather [1994] 1 All
ER 53 at 71-2.

REQUIREMENTS

1. CONTINUOUS INTERFERENCE

There must be a continuous interference over a period of time with the claimant's use or
enjoyment of land.

· De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257. Noisy pile driving at
night during temporary building works was held to be a private nuisance.

There are only rare examples where a single act has been held to amount to a private
nuisance:

· British Celanese v Hunt (Capacitors) Ltd [1969] 2 All ER 1253. Foil had blown from the
D's land where it was stored and had damaged an electricity substation, causing the
electricity to an industrial estate to be cut off. This had occurred once a few years
previously because of the way in which the material was stored. The trial judge held this
to be a private nuisance.

· Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd's Rep 533. It was held that
a firework display constituted a nuisance when it was inevitable that for 15-20 minutes
debris of a flammable nature would fall upon nearby property, thereby damaging the
property in the ensuing fire.

2. UNLAWFUL INTERFERENCE/UNREASONABLENESS

The claimant must prove that the defendant's conduct was unreasonable, thereby making it
unlawful. The rule is sic utere tuo ut alienum non laedas (So use your own property as not
to injure your neighbour's).

As to impairment of the enjoyment of land, the governing principle is that of reasonable
user - the principle of give and take as between neighbouring occupiers of land (per Lord
Goff, Cambridge Water Co v Eastern Counties Leather [1994] 1 All ER 53 at 70).

The court will take the following factors into account in assessing the reasonableness or
otherwise of the defendant's use of land:

The locality

It was stated in Sturges v Bridgman (1879) 11 Ch D 852 that: "What would be a nuisance
in Belgravia Square would not necessarily be so in Bermondsey."

Sensitivity of the claimant

The standard of tolerance is that of the 'normal' neighbour. Therefore, abnormally
sensitive plaintiffs are unlikely to succeed in their claims for private nuisance. Contrast:

· Robinson v Kilvert (1889) 41 Ch D 88. The P's claim was for damage to abnormally
sensitive paper stored in a cellar which was affected by heat from adjoining premises. The
claim failed because ordinary paper would not have been affected by the temperature.

· McKinnon Industries v Walker [1951] 3 DLR 577. Fumes from the D's factory damaged
delicate orchids. As the fumes would have damaged flowers of ordinary sensitivity there
was a nuisance.

The utility of the defendant's conduct

It will be unlikely for an activity to amount to a nuisance if it is useful for the community
as a whole taking into account all the surrounding circumstances, such as locality and the
duration of the activities. Contrast:

· Harrison v Southwark Water Co [1891] 2 Ch D 409 - building work carried out at
reasonable times of the day did not amount to a nuisance.
· Adams v Ursell [1913] 1 Ch D 269 - a fried-fish shop was a nuisance in the residential
part of a street. An injunction would not cause hardship to the D and to the poor people
who were his customers.
Malice

It is not necessary to establish malicious behaviour on the part of the defendant but it may
be regarded as evidence of unreasonableness. Contrast:

· Christie v Davey [1893] 1 Ch D 316. The P had been giving music lessons in his semi-
detached house for several years. The D, irritated by the noise, banged on the walls,
shouted, blew whistles and beat tin trays with the malicious intention of annoying his
neighbour and spoiling the music lessons. An injunction was granted to restrain the D's
behaviour.

· Bradford Corporation v Pickles [1895] AC 587. The P deliberately diverted water
flowing through his land, away from his neighbour's property. The P intended to force
them to buy his land at an inflated price. It was held that he was committing no legal
wrong because no-one has a right to uninterrupted supplies of water which percolates
through from adjoining property.

· Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468. The D, motivated by pure spite,
deliberately fired guns near the boundary of P's land in order to scare the P's silver foxes
during breeding-time. Held to be a nuisance following Christie v Davey.

The state of the defendant's land

An occupier must take such steps as are reasonable to prevent or minimise dangers to
adjoining land from natural hazards on his land.

· Leakey v National Trust [1980] QB 485. The NT owned land upon which there was a
large mound of earth which was being gradually eroded by natural processes, and was
sliding onto the P's property. It was held that an occupier must take such steps as are
reasonable to prevent or minimise dangers to adjoining land from natural hazards on his
land.

However, see Holbeck Hall Hotel v Scarborough BC [2000] 2 All ER 705 - the danger
must be patent and not latent for there to be liability.

3. INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND OR SOME RIGHT
OVER OR IN CONNECTION WITH IT

The claimant must usually prove damage, ie physical damage to the land itself or
property; or injury to health, such as headaches caused by noise, which prevents a person
enjoying the use of their land. Case examples include:

· Bliss v Hall (1838) 4 Bing NC 183 - smells and fumes from candle making invading
adjoining land.
· Halsey v Esso Petroleum [1961] 2 All ER 145 - disturbing neighbours' sleep by noise
and vibrations and damage to clothes from acid smuts.
· Bone v Seale [1975] 1 All ER 787 - smell from neighbours' pig farm.
· Solloway v Hampshire County Council (1981) 79 LGR 449 - allowing tree roots to suck
moisture from adjoining soil, thereby causing subsidence.

However, note the decision and points made by the House of Lords in Hunter v Canary
Wharf Ltd [1997] 2 All ER 426:

· Interference with TV reception by a tall building could not amount to an actionable
public or private nuisance, on the basis that this was not an interference with use or
enjoyment of land.

· "The general principle is that at common law anyone may build whatever he likes upon
his land. If the effect is to interfere with the light, air or view of his neighbour, that is his
misfortune. The owner's right to build can be restrained only by covenant or the
acquisition (by grant or prescription) of an easement of light or air for the benefit of
windows or apertures on adjoining land." (per Lord Hoffman at p17; see also Lord Goff at
p2 and Lord Hope at p27.)

WHO MAY SUE

Only a person who has a proprietary interest in the land affected by the nuisance will
succeed in a claim, eg as owner or reversioner, or be in exclusive possession or
occupation of it as tenant or under a licence to occupy (but there may be anomalous
exceptions, per Lord Hope, Hunter v Canary Wharf).

· Malone v Laskey [1907] 2 KB 141. The P was using a toilet. The lavatory cistern fell on
her head because of vibrations from machinery on adjoining property. Her claim failed as
she was merely the wife of a mere licensee, and had no proprietary interest herself in the
land. However, today she would be able to claim in negligence (per Lords Goff and
Hoffman in Hunter v Canary Wharf).

This rule was upheld by the House of Lords in Hunter v Canary Wharf over-ruling the
Court of Appeal decision in Khorasandjian v Bush [1993] 3 All ER 669. However, the
wife of a homeowner would be able to sue as she has a beneficial interest in the
matrimonial home, per Lord Hoffman, Hunter v Canary Wharf.

Note that jus tertii (right of a third person) is not a defence to an action of nuisance. A
person who is in exclusive possession of land may sue even though he cannot prove title
to it (Foster v Warblington UDC [1906] 1 KB 648, discussed by Lord Goff in Hunter v
Canary Wharf).

WHO MAY BE SUED

Creator of the nuisance
Any person who creates the nuisance can be sued, whether or not that person is the
occupier of the land at the time of the action.

Occupiers
Occupiers who adopt and continue to allow nuisances on their land may also be liable,
even if such nuisances were created by predecessors in title, trespassers or third parties.
See:

· Sedleigh Denfield v O'Callaghan [1940] 3 All ER 349

Landlord
A landlord may be liable for nuisances emanating from land, eg if the landlord had
knowledge of the nuisance before letting, or where the landlord reserved the right to enter
and repair the premises. For example:

· Tetley v Chitty [1986] 1 All ER 663 - council granted permission for a go-kart track on
council owned land. Council liable in nuisance for noise.

Recent cases on who may be sued are the contrasting CA authorities:

· Hussain v Lancaster CC [1999] 4 All ER 125
· Lippiatt v South Gloucestershire C [1999] 4 All ER 149

DEFENCES

Prescription
If the nuisance has been continued for 20 years without interruption the defendant will not
liable if s/he pleads a prescriptive right to the nuisance. See Sturges v Bridgman (1879) 11
Ch D 852 - Doctor built consulting room next to a confectioner's workshop which had
been operating for over 20 years; court held that the prescriptive right began on the use of
the room.

Statutory authority
There will be a defence to private nuisance if it can be shown that the activities
complained of by the claimant were authorised (expressly or impliedly) by a statute (Lord
Dunedin in Manchester Corporation v Farnworth [1930] AC 171). A good example is:

· Allen v Gulf Oil [1981] 1 All ER 353 - Parliament intended a refinery to be constructed.
There was a statutory immunity in respect of any nuisance which was an inevitable result.

Coming to the nuisance no defence
It is no defence to prove that the claimant came to the nuisance: Bliss v Hall (1838) 4
Bing NC 183, where P moved next to a candle-making factory which had been operating
for three years; followed by the Court of Appeal in the cricket ball case, Miller v Jackson
[1977] 3 All ER 338.

REMEDIES

Injunction
An injunction will only be granted at the discretion of the court. For example, an
injunction was refused in Miller v Jackson [1977] 3 All ER 338, where a cricket club was
liable for the nuisance created by balls being hit out of the ground. An injunction may be
interlocutory: Thompson-Schwab v Costaki [1956] 1 All ER 652.

Damages
In cases of nuisance by encroachment or damage to land, the measure of damages will be
the diminution in the value of land; in cases of interference with enjoyment the measure
will be the reduction in amenity value (per Lord Lloyd in Hunter v Canary Wharf). The
cost of repairs or other remedial works is also recoverable (per Lord Hope). For the date
of assessment see Alcoa Minerals v Broderick [2000] 3 WLR 23.

Abatement
This is the remedy of self-help, eg removing over-hanging tree branches, which are a
nuisance. For further details, see Michael A. Jones, Textbook on Torts, p339

PUBLIC NUISANCE

OUTLINE

Public nuisance is an act "which materially affects the reasonable comfort and
convenience of life of a class of Her Majesty's subjects": per Romer LJ in A-G v PYA
Quarries [1957] 1 All ER 894.

It is primarily a crime, prosecuted by the Attorney-General. An example would be
unreasonable use and obstruction of the highway.

It is only actionable as a tort if the claimant has suffered damage over and above other
members of the public.

Defences include statutory authority and act of a stranger, but not prescription.

Remedies include damages and an injunction to restrain further repetition of acts of public
nuisance.

For a detailed comparison of public and private nuisance see Winfield & Jolowicz, p492-4
and p496.
For a good case example see:

· Halsey v Esso Petroleum [1961] 2 All ER 145.

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U.S. Supreme Court
BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)
32 U.S. 243 (Pet.)

JOHN BARRON, survivor of JOHN CRAIG, for the use of LUKE TIERNAN,
Executor of JOHN CRAIG,
v.
The MAYOR and CITY COUNCIL OF BALTIMORE.

January Term, 1833

ERROR to the Court of Appeals for the Western Shore of the state of Maryland. This case
was instituted by the plaintiff in error, against the city of Baltimore, under its corporate
title of 'The Mayor and City Council of Baltimore,' to recover damages for injuries to the
wharf- property of the plaintiff, arising from the acts of the corporation. Craig & Barron,
of whom the plaintiff was survivor, were owners of an extensive and highly productive
wharf, in the eastern section of Baltimore, enjoying, at the period of their purchase of it,
the deepest water in the harbor. The city, in the asserted exercise of its corporate authority
over the harbor, the paving of streets, and regulating grades for paving, and over the
health of Baltimore, diverted from their accustomed and natural course, certain streams of
water which flow from the range of hills bordering the city, and diverted them, partly by
adopting new grades of streets, and partly by the necessary results of paving, and partly
by mounds, [32 U.S. 243, 244] embankments and other artificial means, purposely adapted
to bend the course of the water to the wharf in question. These streams becoming very
full and violent in rains, carried down with them from the hills and the soil over which
they ran, large masses of sand and earth, which they deposited along, and widely in front
of the wharf of the plaintiff. The alleged consequence was, that the water was rendered so
shallow that it ceased to be useful for vessels of an important burden, lost its income, and
became of little or no value as a wharf. This injury was asserted to have been inflicted by
a series of ordinances of the corporation, between the years 1815 and 1821; and that the
evil was progressive; and that it was active and increasing even at the institution of this
suit in 1822.

At the trial of the cause, in the Baltimore county court, the plaintiff gave evidence tending
to prove the original and natural course of the streams, the various works of the
corporation, from time to time, to turn them in the direction of this wharf, and the ruinous
consequences of these measures to the interests of the plaintiff. It was not asserted by the
defendants, that any compensation for the injury was ever made or proffered; but they
justified under the authority they deduced from the charter of the city, granted by the
legislature of Maryland, and under several acts of the legislature conferring powers on the
corporation, in regard to the grading and paving of streets, the regulation of the harbor
and its waters, and to the health of the city. They also denied, that the plaintiff had shown
any cause of action in the declaration, asserting that the injury complained of was a
matter of public nuisance, and not of special or individual grievance in the eye of the law.
This latter ground was taken on exception, and was also urged as a reason for a motion in
arrest of judgment. On all points, the decision of Baltimore county court was against the
defendants, and a verdict for $4500 was rendered for the plaintiff. An appeal was taken to
the court of appeals, which reversed the judgment of Baltimore county court, and did not
remand the case to that court for a further trial. From this judgment, the defendant in the
court of appeals prosecuted a writ of error to this court. [32 U.S. 243, 245] The counsel for
the plaintiff presented the following points: The plaintiff in error will contend, that apart
from the legislative sanctions of the state of Maryland, and the acts of the corporation of
Baltimore, holding out special encouragement and protection to interests in wharves
constructed on the shores of the Patapsco river, and particularly of the wharf erected by
Craig and the plaintiff, Barron; the right and profit of wharfage, and use of the water at
the wharf, for the objects of navigation, was a vested interest and incorporeal
hereditament, inviolable even by the state, except on just compensation for the privation;
but the act of assembly and the ordinance of the city are relied on as enforcing the claim
to the undisturbed enjoyment of the right.

This right was interfered with, and the benefit of this property taken away from the
plaintiff, by the corporation, avowedly, as the defence showed, for public use; for an
object of public interest-the benefit more immediately of the community of Baltimore,
the individuals, part of the population of Maryland, known by the corporate title of the
Mayor and City Council of Baltimore. The 'inhabitants' of Baltimore are thus
incorporated by the acts of 1796, ch. 68. As a corporation, they are made liable to be
sued, and authorized to sue, to acquire and hold and dispose of property and, within the
scope of the powers conferred by the charter, are allowed to pass ordinance and
legislative acts, which it is declared by the charter, shall have the same effect as acts of
assembly, and be operative, provided they be not repugnant to the laws of the state, or the
constitution of the state, or of the United States. The plaintiff will contend accordingly:

1. That the Mayor and City Council of Baltimore, though viewed even as a municipal
corporation, is liable for tort and actual misfeasance; and that it is a tort, and would be so,
even in the state, acting in her immediate sovereignty, to deprive a citizen of his property,
though for public uses, without indemnification; that regarding the corporation as acting
with the delegated power of the state, the act complained of is not the less an actionable
tort.

2. That this is the case of an authority exercised under a [32 U.S. 243, 246] state; the
corporation appealing to the legislative acts of Maryland for the discretional power which
it has exercised. 3. That this exercise of authority was repugnant to the constitution of the
United States, contravening the fifth article of the amendments to the constitution, which
declares that 'private property shall not be taken for public use, without just
compensation;' the plaintiff contending, that this article declares principles which regulate
the legislation of the states, for the protection of the people in each and all the states,
regarded as citizens of the United States, or as inhabitants subject to the laws of the
Union. 4. That under the evidence, prayers and pleadings in the case, the constitutionality
of this authority exercised under the state, must have been drawn in question, and that
this court has appellate jurisdiction of the point, from the judgment of the court of appeals
of Maryland, the highest court of that state; that point being the essential ground of the
plaintiff's pretention, in opposition to the power and discussion of the corporation. 5. That
this court, in such appellate cognisance, is not confined to the establishment of an abstract
point of construction, but is empowered to pass upon the right or title of either party; and
may, therefore, determine all points incidental or preliminary to the question of title, and
necessary in the course to that inquiry; that consequently, the question is for this court's
determination, whether the declaration avers actionable matter, or whether the complaint
is only of a public nuisance; and on that head, the plaintiff will contend, that special
damage is fully shown here, within the principle of the cases where an individual injury
resulting from a public nuisance is deemed actionable; the wrong being merely public
only so long as the law suffered in the particular case is no more than all members of the
community suffer. Upon these views, the plaintiff contends, that the judgment of the
court of appeals ought to be reversed. The counsel for the plaintiff in error, Mr. Mayer, on
the suggestion of the court, confined the argument to the question whether, under the
amendment to the constitution, the court had jurisdiction of the case. [32 U.S. 243, 247]
The counsel for the defendants in error, Taney and Scott, were stopped by the court.

MARSHALL, Ch. J., delivered the opinion of the court.

The judgment brought up by this writ of error having been rendered by the court of a
state, this tribunal can exercise no jurisdiction over it, unless it be shown to come within
the provisions of the 25th section of the judiciary act. The plaintiff in error contends, that
it comes within that clause in the fifth amendment to the constitution, which inhibits the
taking of private property for public use, without just compensation. He insists, that this
amendment being in favor of the liberty of the citizen, ought to be so construed as to
restrain the legislative power of a state, as well as that of the United States. If this
proposition be untrue, the court can take no jurisdiction of the cause.

The question thus presented is, we think, of great importance, but not of much difficulty.
The constitution was ordained and established by the people of the United States for
themselves, for their own government, and not for the government of the individual
states. Each state established a constitution for itself, and in that constitution, provided
such limitations and restrictions on the powers of its particular government, as its
judgment dictated. The people of the United States framed such a government for the
United States as they supposed best adapted to their situation and best calculated to
promote their interests. The powers they conferred on this government were to be
exercised by itself; and the limitations on power, if expressed in general terms, are
naturally, and, we think, necessarily, applicable to the government created by the
instrument. They are limitations of power granted in the instrument itself; not of distinct
governments, framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining
the power of the general government, not as applicable to the states. In their several
constitutions, they have imposed such restrictions on their respective [32 U.S. 243, 248]
governments, as their own wisdom suggested; such as they deemed most proper for
themselves. It is a subject on which they judge exclusively, and with which others
interfere no further than they are supposed to have a common interest.

The counsel for the plaintiff in error insists, that the constitution was intended to secure
the people of the several states against the undue exercise of power by their respective
state governments; as well as against that which might be attempted by their general
government. It support of this argument he relies on the inhibitions contained in the tenth
section of the first article. We think, that section affords a strong, if not a conclusive,
argument in support of the opinion already indicated by the court. The preceding section
contains restrictions which are obviously intended for the exclusive purpose of
restraining the exercise of power by the departments of the general government. Some of
them use language applicable only to congress; others are expressed in general terms. The
third clause, for example, declares, that 'no bill of attainder or ex post facto law shall be
passed.' No language can be more general; yet the demonstration is complete, that it
applies solely to the government of the United States. In addition to the general
arguments furnished by the instrument itself, some of which have been already suggested,
the succeeding section, the avowed purpose of which is to restrain state legislation,
contains in terms the very prohibition. It declares, that 'no state shall pass any bill of
attainder or ex post facto law.' This provision, then, of the ninth section, however
comprehensive its language, contains no restriction on state legislation.

The ninth section having enumerated, in the nature of a bill of rights, the limitations
intended to be imposed on the powers of the general government, the tenth proceeds to
enumerate those which were to operate on the state legislatures. These restrictions are
brought together in the same section, and are by express words applied to the states. 'No
state shall enter into any treaty,' &c. Perceiving, that in a constitution framed by the
people of the United States, for the government of all, no limitation of the action of
government on [32 U.S. 243, 249] the people would apply to the state government, unless
expressed in terms, the restrictions contained in the tenth section are in direct words so
applied to the states.

It is worthy of remark, too, that these inhibitions generally restrain state legislation on
subjects intrusted to the general government, or in which the people of all the states feel
an interest. A state is forbidden to enter into any treaty, alliance or confederation. If these
compacts are with foreign nations, they interfere with the treaty-making power, which is
conferred entirely on the general government; if with each other, for political purposes,
they can scarcely fail to interfere with the general purpose and intent of the constitution.
To grant letters of marque and reprisal, would lead directly to war; the power of declaring
which is expressly given to congress. To coin money is also the exercise of a power
conferred on congress. It would be tedious to recapitulate the several limitations on the
powers of the states which are contained in this section. They will be found, generally, to
restrain state legislation on subjects intrusted to the government of the Union, in which
the citizens of all the states are interested. In these alone, were the whole people
concerned. The question of their application to states is not left to construction. It is
averred in positive words.

If the original constitution, in the ninth and tenth sections of the first article, draws this
plain and marked line of discrimination between the limitations it imposes on the powers
of the general government, and on those of the state; if, in every inhibition intended to act
on state power, words are employed, which directly express that intent; some strong
reason must be assigned for departing from this safe and judicious course, in framing the
amendments, before that departure can be assumed. We search in vain for that reason.

Had the people of the several states, or any of them, required changes in their
constitutions; had they required additional safe-guards to liberty from the apprehended
encroachments of their particular governments; the remedy was in their own hands, and
could have been applied by themselves. A [32 U.S. 243, 250] convention could have been
assembled by the discontented state, and the required improvements could have been
made by itself. The unwieldy and cumbrous machinery of procuring a recommendation
from two-thirds of congress, and the assent of three-fourths of their sister states, could
never have occurred to any human being, as a mode of doing that which might be
effected by the state itself. Had the framers of these amendments intended them to be
limitations on the powers of the state governments, they would have imitated the framers
of the original constitution, and have expressed that intention. Had congress engaged in
the extraordinary occupation of improving the constitutions of the several states, by
affording the people additional protection from the exercise of power by their own
governments, in matters which concerned themselves alone, they would have declared
this purpose in plain and intelligible language.

But it is universally understood, it is a part of the history of the day, that the great
revolution which established the constitution of the United States, was not effected
without immense opposition. Serious fears were extensively entertained, that those
powers which the patriot statesmen, who then watched over the interests of our country,
deemed essential to union, and to the attainment of those unvaluable objects for which
union was sought, might be exercised in a manner dangerous to liberty. In almost every
convention by which the constitution was adopted, amendments to guard against the
abuse of power were recommended. These amendments demanded security against the
apprehended encroachments of the general government-not against those of the local
governments. In compliance with a sentiment thus generally expressed, to quiet fears thus
extensively entertained, amendments were proposed by the required majority in congress,
and adopted by the states. These amendments contain no expression indicating an
intention to apply them to the state governments. This court cannot so apply them.

We are of opinion, that the provision in the fifth amendment to the constitution, declaring
that private property shall not be taken for public use, without just compensation, is
intended solely as a limitation on the exercise of power by the [32 U.S. 243, 251]
government of the United States, and is not applicable to the legislation of the states. We
are, therefore, of opinion, that there is no repugnancy between the several acts of the
general assembly of Maryland, given in evidence by the defendants at the trial of this
cause, in the court of that state, and the constitution of the United States. This court,
therefore, has no jurisdiction of the cause, and it is dismissed.

THIS cause came on to be heard, on the transcript of the record from the court of appeals
for the western shore of the state of Maryland, and was argued by counsel: On
consideration whereof, it is the opinion of this court, that there is no repugnancy between
the several acts of the general assembly of Maryland, given in evidence by the defendants
at the trial of this cause in the court of that state, and the constitution of the United States;
whereupon, it is ordered and adjudged by this court, that this writ of error be and the
same is hereby dismissed, for the want of jurisdiction.

Footnotes

[ Footnote 1 ] Livingston v. Moore, post, p. 551; Holmes v. Jamison, 14 Pet. 587; Fox v.
Ohio, 5 How. 410; Withers v. Buckly, 20 Id. 84; Pervear v. Commonwealth, 5 Wall. 475;
Twitchell v. Commonwealth 7 Id. 321; Edwards v. Elliott, 21 Id. 538; Pearson v. Yewdall,
95 U.S. 294 ; Barker v. People, 3 Cow. 686; Livingston v. New York, 8 Wend. 85; Ex
parte Smith, 10 Id. 449; Lee v. Tillotson, 24 Id. 337.

[ Footnote 2 ] 'It is a difficult problem,' said Chief Justice AGNEW, 'to define the
boundaries of state and federal powers; the doctrine of the rights of the states, pushed to
excess, culminated in civil war; the rebound caused by the success of the federal arms,
threatens a consolidation, equally serious.' Craig v. Kline, 65 Penn. St. 399. The decisions
upon the legislation under the 14th amendment to the constitutions, are worthy of the
most careful consideration in this regard. It was determined at an early day (1869), that
this amendment did not execute itself, but required legislation on the part of congress.
Griffin's Case, Chase's Dec. 364. And this led to the passage of the civil rights act of the
1st March 1875 (18 U. S. Stat. 395). Under the 4th section of this act, it has been
determined, that the amendment not only gave the privileges of citizenship to the colored
race, but denied to any state the power to withhold from them the equal protection of the
laws, and invested congress with power to enforce its provisions; consequently, that a
state law which denied to them the right of serving as jurors, though qualified in other
respects, was a violation of the constitution. Strauder v. West Virginia, 100 U.S. 303 .
And that an indictment will lie against a state officer, for excluding persons of color from
the jury list. Ex parte Virginia, Id. 339. A

state law confining the selection of jurors to persons possessing the qualifications of
electors, was enlarged in its operation, by the 15th amendment, so as to embrace persons
of the negro race. Neal v. Delaware, 103 U.S. 370 . But the prohibitions of the 14th
amendment have exclusive reference to state action; it is the state which is prohibited
from denying to any person within its jurisdiction the equal protection of the laws; the
federal statute was intended to protect the colored race against state action, and against
that alone. Virginia v. Rives, 100 U.S. 313 ; Neal v. Delaware, 103 Id. 370; Bush v.
Kentucky, 107 Id. 110. And as a consequence of this doctrine, it has been determined, that
the first and second sections of the civil rights act, which forbid the denial to persons of
color of equal accommodations in inns, public conveyances and places of amusement, are
unconstitutional, as not within the power of congress. United States v. Washington, 4
Woods 349; United States v. Stanley, 109 U.S. 3 . Judge BRADLEY there says, 'the
implication of a power to legislate in this manner is based upon the assumption, that if the

states are forbidden to legislate or act in a particular way, on a particular subject, and
power is conferred upon congress to enforce the prohibition, this gives congress power to
legislate generally upon that subject, and not merely power to provide means of redress
against such state legislation or action. This assumption is certainly unsound. It is
repugnant to the 10th amendment to the constitution, which declares, that powers not
delegated to the United States by the constitution, nor prohibited by it to the states, are
reserved to the states, respectively, or to the people.' A state law which prohibits a white
person and a negro from living together in concubinage is not unconstitutional, though it
prescribes penalties more severe, than if both were of the same race. Pace v. Alabama,
106 U.S. 538 . Neither does the amendment prevent a state from establishing one system
of law, in one portion

of its territory, and another system, in another portion. Missouri v. Lewis, 101 U.S. 22 .
The 15th amendment does not confer upon the negro the right of suffrage; but it secures
him from discrimination in the exercise of the elective franchise, on account of race,
color, &c., United States v. Reise, 92 U.S. 214 . The right to vote comes from the states;
but the right of exemption from the prohibited discrimination comes from the United
States; the first has not been granted or secured by the constitution, but the last has been.
United State v. Cruikshank, Id. 542. And see United States v. Amsden, 10 Biss. 283. It
has been decided in New York, that personal rights of state citizenship, such as those of
attendance at the public schools, are not within the 14th amendment. People v. Gallagher,
93 N. Y. 438. And in Pennsylvania, that a common carrier of passengers, independently
of state legislation, has the right to make a regulation for the separation of negro and
white passengers in a public conveyance. West Chester and Philadelphia Railroad Co. v.
Miles, 55 Penn. St. 209.

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