Public Nuisance—A Critical Examination

Abstract

Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance. The definition of this offence, according toArchbold's Criminal Pleading and Practice, is as follows: “Every person is guilty of an offence at common law, known as public nuisance, who does an act not warranted by law, or omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.” The person who commits a public nuisance incurs liability to life imprisonment and unlimited fines. He can be made vicariously liable for the offence if it is committed by his servants. He can be ordered to stop it by an injunction, and made to pay damages in tort if it causes anyone loss. With such a broad concept in existence, backed with such broad remedies, what need have we of any other criminal offence?—or torts?—or remedies in administrative law?

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