tions, than that this gentleman abandoned his purpose merely as a subdued person in an unequal contest. The resistance is carried on as far as it can be, and when it can maintain itself no longer, fugit indignata.

In the case of Maley v. Shattuck, 3 Cranch, 457, 488, respecting the grounds upon which a vessel may forfeit her neutral character, the court, by Chief Justice Marshall, said:

It is well known that a vessel libeled as enemy's property is condemned as prize if she act in such manner as to forfeit the protection to which she is entitled by her neutral character. If, for example, a search be resisted, or an attempt be made to enter a blockaded port, the laws of war, as exercised by belligerents, authorize a condemnation as enemy's property, however clearly it may be proved that the vessel is in truth the vessel of a friend.

So here, where the master by force attempted to prevent visitation and search, he thereby forfeited his neutral character; and that being so, shall he, while on the same voyage, be dealt with by France as having reestablished his neutrality by yielding without force to a subsequent capture? We think not. And, therefore, we must hold that the resistance of the master to visitation and search at the time of the first capture was available to France as a defense at the time of the second capture, though no illegal act was then committed; and being a defense available to France at the time, it is now available to the United States under the act of our jurisdiction.

But the claimant contends that because the master of the vessel was spirited away, as shown in the findings, and was not examined in preparatorio or permitted to be present at the trial, the proceedings were ex parte and, therefore, illegal, notwithstanding the master's resistance to search. Furthermore, that the mate who succeeded to the duties of the master was imprisoned and not represented at the trial.

In the case of The Anne, Barnabeu, 3 Wheat., 435, 447 (a British ship captured by an American privateer during the war between England and the United States in March, 1815), Mr. Justice Story, speaking for the court, said:

A capture made within neutral waters is, as between enemies, deemed, to all intents and purposes, rightful; it is only by the neutral sovereign that its legal validity can be called in question; and as to him and him only, is it to be considered void. The enemy has no rights whatsoever; and if the neutral sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors. This is the clear result of the authorities; and the doctrine rests on well-established principles of public law.

(In a footnote on that same page it is stated: "The same rule is adhered to in the prize practice of France.")

That case was cited with approval in the case of The Florida, 101 U. S., 37, 42, where it was said:

A capture in neutral waters is valid as between belligerents. Neither a belligerent owner nor an individual enemy owner can be heard to complain. But the neutral sovereign whose territory has been violated may interpose and demand reparation, and is entitled to have the captured property restored.

Furthermore, it is there stated that:

The title to captured property always vests primarily in the government of the captors. The rights of individuals, where such rights exist, are the results of local law or regulations. Here the capture was promptly disavowed by the United States. They, therefore, never had any title.

In the case of the Schooner Good Intent, 36 C. Cls. R., 262, it is in substance held that the owners of a vessel have the right to defend their property, to show such facts as will establish the illegality of the seizure, and that if they are deprived of that right the condemnation is illegal.

In the case of the Brig Sally, 37 C. Cls. R., 74, 78, it was held that if the capture of the vessel was legal "it was the duty of the captain of the capturing vessel to afford the captain of the Sally every reasonable opportunity to assert and maintain his rights in the proceedings to condemn the vessel founded upon capture." Again it was there held that "it is not the seizure which confers the right of property upon a seizing vessel, but it is a judicial determination of the question of the liability of the ship founded upon such seizure."

In the case of the Snow Thetis, 37 C. Cls. R., 470, it was held:

Where the decree of the prize tribunal is silent as to the presence of the parties in interest, and there is neither protest nor proof equivalent to it showing that the owners or their agents were denied a hearing, the presumption is that they were present and given an opportunity to defend. But where it can be gathered from the action of the prize court or from proof contemporaneous with the transaction that the proceeding was one of those which justified the American complaint of that period respecting condemnations without notice to vessel owners, no effect will be given to the summary disposition of a vessel under such a decree.

In the case of the Schooner Maria, 39 C. Cls. R., 147, 152, it was in substance held that while the seizure and condemnation of a vessel may have been for good cause, it was the right of the master to be present at the

trial; and if prevented by imprisonment from so doing the proceeding was ex parte and wholly void. "Nor can it be held that the decree under the circumstances of this case was conclusive on that point, as the condemnation was ex parte and the proceedings illegal."

In the present case, aside from the master having by his resistance forfeited his neutral character, we think the owners of the property were represented at the trial. The decree, after stating the capture of the Ship Endeavour from Boston, Nathaniel Griffin, master, recites that "the examination made on Frimaire 2d last, on the occasion of said seizure, by Citizen Bébian, delegate in Porto Rico; the analysis of said vessel's papers in English compared and signed Bébian, by Citizen Menard, assistant sworn interpreter of said language," from which it may be inferred that the mate, acting master, was examined in preparatorio; but if not, then the decree "is silent as to the presence of the parties;" and as it is not recited in the protest that the mate was denied a hearing the presumption is, as held in The Snow Thetis, supra. that he was given an opportunity to defend. The burden is upon the claimant to show that he was not. The mate, though imprisoned at Porto Rico, thereafter in the island of St. Thomas on December 24th, made his protest, while the condemnation did not take place until January 7th following: he was at liberty, so far as appears by the record, to attend the trial in person if he had so desired. We must therefore hold that the condemnation was legal, and the motion for a new trial is overruled. The former findings are withdrawn and new findings now filed.

The findings herein together with this opinion will be certified to Congress.

GEORGIA V. TENNESSEE COPPER COMPANY

Supreme Court of the United States, 1907

(206 U. S. 230, 236)

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity filed in this court by the State of Georgia, in pursuance of a resolution of the legislature and by direction of the Governor of the State, to enjoin the defendant Copper Companies from discharging noxious gas from their works in Tennessee over the plaintiff's territory. It alleges that in consequence of such discharge a wholesale. destruction of forests, orchards and crops is going on, and other injuries.

are done and threatened in five counties of the State. It alleges also a vain application to the State of Tennessee for relief. A preliminary injunction was denied, but, as there was ground to fear that great and irreparable damage might be done, an early day was fixed for the final hearing and the parties were given leave, if so minded, to try the case on affidavits. This has been done without objection, and, although the method would be unsatisfactory if our decision turned on any nice question of fact, in the view that we take we think it unlikely that either party has suffered harm.

The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word. but with it remains the final power. The alleged damage to the State as a private owner is merely a makeweight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.

The caution with which demands of this sort, on the part of a State, for relief from injuries analogous to torts, must be examined, is dwelt upon in Missouri v. Illinois, 200 U. S. 496, 520, 521. But it is plain that some such demands must be recognized, if the grounds alleged are proved. When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. Illinois, 180 U. S. 208, 241.

Some peculiarities necessarily mark a suit of this kind. If the State has a case at all, it is somewhat more certainly entitled to specific relief than a private party might be. It is not lightly to be required to give up quasi-sovereign rights for pay; and, apart from the difficulty of valuing such rights in money, if that be its choice it may insist that an

e

The States by entering the Union rivate owners subject to one system of

quite the same freedom to balance the njunction against that of which the plain..ave in deciding between two subjects of Vithout excluding the considerations that count, we can not give the weight that was to a comparison between the damage threatened e calamity of a possible stop to the defendants' health, the character of the forests as a first or ommercial possibility or impossibility of reducing pure acid, the special adaptation of the business to the

asonable demand on the part of a sovereign that the should not be polluted on a great scale by sulphurat he forests on its mountains, be they better or worse, mestic destruction they have suffered, should not be or threatened by the act of persons beyond its control, and orchards on its hills should not be endangered from

If any such demand is to be enforced this must be, the hesitation that we might feel if the suit were bese parties, and the doubt whether for the injuries which they ering to their property they should not be left to an action

of requires but a few words. It is not denied that the defenderate in their works near the Georgia line large quantities of Goxide which becomes sulphurous acid by its mixture with the hardly is denied and can not be denied with success that this en is carried by the wind great distances and over great tracts of a land. On the evidence the pollution of the air and the magnithat pollution are not open to dispute. Without any attempt to details immaterial to the suit, it is proper to add that we are ed by a preponderance of evidence that the sulphurous fumes cause threaten damage on so considerable a scale to the forests and vegee life, if not to health, within the plaintiff State as to make out a within the requirements of Missouri v. Illinois, 200 U. S. 496. Whether Georgia by insisting upon this claim is doing more harm than good to her own citizens is for her to determine. The possible disaster to those outside the State must be accepted as a consequence of her standing upon her extreme rights.