Fashions in the Law. Another striking illustration of fashions in the law is found in what is called " govern ment by injunction." This is, for the most part, though not always, government by the Federal courts by the process of injunction, government by a non-elective judiciary, pro ceeding by methods wholly independent of State common law or State legislation — for the Federal courts when sitting in equity are totally independent of State control, — dis placing the regular criminal process of the States, the remedy for public wrongs by in dictment or information and by trial by jury, together with the constitutional guaranties which attend that mode of trial; and sub stituting in the place thereof process of con tempt, where the procedure is founded upon the inquisitorial methods of the Roman law, where there is no trial by jury, and where the punishment rests absolutely in the dis cretion of the judge, who is sitting in a large measure as a judge in his own case, — in a case where his process has not merely been disobeyed, but where his personal dignity has been offended. This new remedy which, with all that has been or can be said against it, is better than anarchy, has been the pro duct of the last twenty years. It is not a mere invention; it is a development — an evolution; for the germs of this remedy, largely as it has been developed, are un doubtedly found in the jurisdiction asserted by the English chancellors, — a jurisdiction so odious to our ancestors that some of the States — notably Massachusetts and Penn sylvania — did not adopt it until periods comparatively recent. This fashion has, in its turn, met with powerful political opposi tion, — in other words, opposition on the part of the people, more than on the part of the lawyers. The voice of that opposition is calling out, " hitherto shalt thou come, but no further; and here shall thy proud waves be stayed." A still more modern instance of" fashions in the law" may be found in the recent de cision of the English House of Lords in
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Allen v. Flood.1 The doctrine which has been extracted from this remarkable decis ion is, that whatever a man has a right to do out of a good motive, he may do out of a bad motive, without incurring the liability to an action by anyone who has been dam aged thereby. This doctrine was first re ceived in America with a flutter of attention, and then with a great cackle of applause. The fact was overlooked that, in deciding it, a majority of the lords had disregarded the opinions of six out of seven judges whom they had assembled at their bar. The further fact was overlooked that, having ref erence to the number of judges who from first to last participated in its decision, it was a decision of seven judges against thirteen. A little reflection will serve to convince one, that such a doctrine can never maintain a foothold in an enlightened jurisprudence, for the reason that it is opposed to the common sense of justice of mankind. It could be pointed out, if there were time, that there are many things which a man may do from a good motive which he may not do for the mere purpose of private vengeance, or of insulting or annoying his neighbor. For example, in the law of libel a man may, in many cases, publish an unpleas ant truth concerning another man, where he does it out of good motives and for justifiable ends; whereas he will not be al lowed to publish it for the mere purpose of gratifying his private malice. So, a man may, in a populous community, lawfully carry on an employment which annoys his neighbors; whereas he would clearly not be allowed to do it for the mere purpose of annoying them. A man may, for example, erect on his land, in a given situation, an establishment for rendering the carcasses of dead animals; and this, although it an noys the inhabitants of the neighborhood, will be permitted for the sake of trade, for the sake of the general public health, and 1 [1898] A. C. I. See a review of this case, by the writer of this paper, in 30 Am. Law Rep. 463.
