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relief, it is equally certain that some of the forms of the writ of reparare facias, as will be seen from an examination of Fitzherbert's work and the Register of Writs, were themselves founded upon nuisance. It is said that by an action on the case the plaintiff could recover only damages; 20 whereas by a writ of reparare facias he could obtain specific relief. A comparison of the jurisdiction of the common-law courts with that of Chancery, in the matter of nuisance, is illuminating. As Professor Chafee reminds us,27 the first reported case in Chancery seems to be Osburne v. Barter.28 Cary, 28, written before 1650," Professor Chafee tells us, "recognizes the equitable jurisdiction [of Chancery] as settled: 'Where an action upon the case for a Nusans and damages only are to be recovered, the party may have help here [in Chancery] to remove or restore the thing itself."" But, continues Professor Chafee, "Bush v. Western,29 . . . is the first reported [Chancery] case to grant relief." This late assumption of jurisdiction by Chancery, in this class of cases, is a striking fact. But while it points to a retention by the common-law courts of their old jurisdiction, enforced by the writs of reparare facias, down to comparatively recent times, only a detailed study of the cases will enable us to determine the precise extent to which these writs of the Registrum Brevium were actually employed in practice.

There are still further indications of the survival of common-law equity in modern centuries. Coke gives us one hint of this in his account of the writs quia timet, writs which are "called brevia anticipantia, writs of prevention.' " 30 Plowden suggests still another line of investigation in his note to Eyston v. Studd,31 a note which is one of the classics of our legal literature; for Plowden, elaborating the point that our law consists of two parts, "body and soul," proves to us that the common-law courts had never abandoned their early equitable principles in the matter of the interpretation of statutes. Nor is it uninstructive to observe that when Lord Mansfield and Mr. Justice Buller, as common-law judges, followed equitable principles, they were but continuing the practice of many of their predecessors. It may be true, as was once remarked by Lord Thurlow, that "Buller knew no more of equity than a horse;" 33 but it is certainly true that Mansfield - who "never liked Law so well as when it was like Equity"

32

" 34

was a master of equitable as well as of common-law principles, and that, by neglecting in the King's Bench the strict boundaries between legal and equitable jurisdiction, he was the legitimate successor of those thirteenth and fourteenth century judges who had administered the forms and processes of the common law with an eye to affording relief of an equitable character. There is no doubt that Mansfield borrowed much from the equity of Chancery; but there is also no doubt that a substratum of his equity was derived from the traditions of the King's Bench as a court which had power to afford, within certain limits, relief of the same sort as that granted by Chancery. Even Lord Kenyon did not remove all of Mansfield's equity from the common law; and, in certain directions, the equitable features of the common law increased rather than diminished in importance in the period before the Judicature Act. By directing attention to a few

30 Co. Litt. 100 a.

31 2 Pl. Com. 459 a, 465-468_(1574).

32 See I SPENCE, EQUITABLE JURISDICTION OF THE COURT OF CHANCERY, 576. 33 See CAMPBELL, LIVES OF THE LORD CHANCELLORS, 196.

34 See Dursley v. Fitzhardinge Berkeley, 6 Ves. 251, 260 (1801).

of the early instances of specific relief in the common-law courts, it is to be hoped that Professor Chafee may be the means of inspiring at least two or three young lawyers with the resolve to devote a part of their leisure to investigating some of the aspects of the long history of equity as administered by judges of the common law. A fruitful field of enquiry lies open to them.

In the present review, perhaps far too much space has been occupied by references to the historical interest attaching to Professor Chafee's volume. In conclusion, therefore, emphasis should be laid on its value as a collection of present-day authorities. The learned editor has had in mind, at every point, the need of the teacher and student for a methodical and concise exposition of the equitable principles enforced by the courts of today; and it is not too much to say that in the execution of this design he has been eminently successful. A mastery of the book will not only give the reader a firm grasp of the fundamental principles of an important branch of equity jurisdiction, but it will—or at least it should-inspire him with the desire to explore still further a realm of learning which offers unusual scope to the mind that craves the delights of legal reasoning and analysis. Words used in the preface to Rolle's Abridgment des plusieurs Cases et Resolutions del Common Ley may be applied, not inappropriately, to Professor Chafee's Cases on Equitable Relief against Torts. Whereas at this day," remarks Rolle's publisher, who was no less a person than Hale,35 the Books of the Law are grown very many and very large, so that many will not have the patience to read them all, the Student will in this Book have a considerable Abstract and Collection of most that is material in them."

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H. D. HAZELTINE.

THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW. By Westel W. Willoughby. New York: The Macmillan Company. 1924. pp. xvii, 499.

Professor Willoughby has been a student of political science for a generation. His recent volume marshals the results of his life work. It manifests fine scholarship and presents to the American public a wide review of English and European writings in the same field. The book does not afford easy reading. It is condensed political philosophy, which sometimes falls into generalizations that are both broad and vague. It presupposes that the reader is equipped with a general knowledge of modern political ideas and of English and American political history.

The method of the book is revealed in two words of its title, "Fundamental Concepts." By the first, the author means those factors which are common to all civilized states, - Venezuela or the British Empire, the United States or Russia under the Czars. His plan "is indifferent to all questions as to relative merits of different forms of government, or of different administrative systems." As the term Concepts" indicates, his thought is juristic, formal, metaphysical. He is as severely legal as Austin. His "analytical political philosophy works "back from conclusions to premises." He finds three fundamental concepts in the State: (1) A people politically organized (2) Occupying a definite territory and (3) Exercising sovereignty over that territory and its inhabitants. The first two factors are simple and are easily stated. But the subject of sovereignty occupies relatively as great a space in Dr. Willoughby's book as it has in the field of modern political writings.

35 See City of London v. Wood, 12 Mod. 669, 689 (1701).

The title of the present work is identical with that of a book published by Otto Gierke in Germany in 1874. Dr. Willoughby, in his treatment of the State and of sovereignty, follows in main outline the thought of Austin and of German political writers of the nineteenth century. He frequently uses German nomenclature, and quotes extensively without translation from German authors.

American political thought has been too largely indebted to German jurists and philosophers. Lieber, Mulford, Von Holtz, and Burgess have formulated our political science, and they all drew largely from German sources. But Germany and the United States have stood at opposite political poles. The basis of our polity is popular sovereignty; that of Germany has always been kingly rule. Before the federation, each German state was a kingdom with royalty the dominant power. When the Empire was formed, the Emperor was placed at the head, deriving his power from God. Down to 1918, his increasing supremacy was the outstanding feature of German politics. All German thought was profoundly influenced by this drama of the German State. Jurist and philosopher alike rationalized in support of the imperial system. It is too plain for argument that such a field is a poor place from which to gather political ideas for the interpretation of popular government.

From Plato and Aristotle to Hegel and Spencer, political science was largely in the hands of philosophers. During most of that time philosophy also embraced theology and metaphysics, and gave to political science a rationalized, analytical, metaphysical content. Philosophers formulated their political categories and concepts by a process of severely abstract reasoning and then forced political facts into that framework. Professor Willoughby has not escaped the power of that past.

This influence clearly appears in the chapter entitled "The State as a Juristic Person." The author refuses to go to the full extent of Gierke and Figgis and say that the State is a "real" person. He stops half-way and says it is a "juristic " person. In answering the former writers he quotes as follows from an article by Professor Cohen on "Ghosts and other Perils in Social Philosophy": "Because a number of individuals find themselves united by the closest of common interests or opinions there is no warrant for saying that a thing, much less a thing that has a life and a will of its own and is therefore entitled to be termed a person, has been brought into existence. However strong or intensive the unity that exists, it is, after all, a relationship and not a new entity or real thing that has been created. All are agreed that groups are characterized by some kind of unity, and the fundamental issue is whether this unity shall be viewed as an entity additional to the entities unified and of the same kind, or whether it shall be viewed for what it is, as just the unifying relation."

It is appropriate that a writer on "Ghosts" should refute the notion that organized groups are "persons," juristic or real.

It seems to have escaped Dr. Willoughby's notice that Professor Cohen's reasoning is just as fatal to calling the State a "juristic" person as to calling it a real" person or for that matter a person of any kind; yet throughout the volume the theory that the State is a juristic person is the most fundamental of his "Fundamental Concepts."

"Person" has been a term of confusion both in theology and political science. To call a state or corporation a "person" adds a new factor of obscurity, instead of clarifying those concepts. Such denomination sets the mind at once to asking what is this new meaning of the word person." It is natural to seek a common name for complex units, but to substitute a personification for a reasonably clear group name results only in confusion. When our unifying reality becomes an additional

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thing," we have, instead of gaining clearness, achieved one of the great sources of human error.

Dr. Willoughby treats the State as a juristic person and all acts of government as expressions of its will. In doing this he himself seems to be aware that he is indulging in pure metaphysics. He says: "It is of course to be understood that when we speak of the State as willing this or that, and describe laws as being the formulated expressions of these volitions of the State, this is but a juristic mode of speaking. The State, not being a person in a biological sense, cannot possess or exercise a will of its own in the sense that a human individual is able to do. The substance of what is actually willed is determined by those individual persons who have control of the government. . . . Juristically viewed, then, though regarded as expressions of the will of the State, laws, in their substantive provisions, declare the will of human individuals."

Such being the reality, why not stick to it? If anyone will take any of the passages in the book using this metaphysical form of speech and substitute realities for the metaphysics, he will find the thought of such passages clarified and strengthened.

The author's volume is divided into two parts. The first presents the author's philosophy of the State. It develops his "Fundamental Concepts." The second is mainly concerned with the decisions of the Courts. The first is abstract; the second concrete. The title of the second part, "Fundamental Concepts Applied," is hardly supported by its subject-matter.

Sovereignty has been the chief theme of political science. Countless volumes have been written to define it and to locate it in the different states. Dr. Willoughby gives this subject the chief place in the first part of his work. His method of dealing with it manifests most clearly the quality of his thoughts. Quotation will make this plainer than description:

"Sovereignty implies the conception of the State as a volitional entity. or political person, and designates that faculty which this political person possesses of determining, by its fiat, what are to be the legal rights and legal duties which it will recognize and, if necessary, enforce."

"Viewed as a quality or faculty of Statehood, and as connoting legal omnipotence rather than physical power, sovereignty is, by its very nature, a unity."

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Sovereignty as a State attribute is not only a unity, but one that, by its very nature and definition, connotes absolute legal authority. To place a legal limit upon it is therefore to destroy it."

"Sovereignty, thus denoting the legally omnipotent will of the State, is indivisible and inalienable."

Having thus defined sovereignty, he seeks to apply his definition to the actual polity of different states. He gives most space to the federal State and particularly to the United States. Adhering to his definition, he takes the position that in our country supreme sovereignty is vested in the union and not divided between it and the states. In doing this he seems to violate the most conspicuous feature of our political life and history, the constitutional division of all power between the states and the nation. To treat sovereignty as qualitative and not quantitative, to hold the same people subject both to the state and the nation, the one exercising local and the other national powers, has been deemed the distinctive achievement of the Fathers. It is sometimes said that the duality relates to the government and not to the State. But this does not fit the historic facts. Each state is the creation of its own people in precisely the same way that the union is the creation of all the people. In the language of Woodrow Wilson, the powers of the states are original and inherent, not derivative."

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Dr. Willoughby concedes that the men who drafted and adopted our Constitution believed that sovereignty was divisible and that they had divided it. But he says the necessities of practical political life soon demonstrated that this theory was unworkable, and the doctrine was therefore adopted that the national authority was legally superior to that of the individual states. For years, however," he continues, "lip service continued to be given to the doctrine of a sovereignty divided between the union and its constituent states, although, whenever an issue arose between the two, the legal supremacy of the former was vindicated." Is that statement true to our history? One of the highest duties of the Supreme Court of the United States has been to restrain both the nation and the states, each from invading the sphere of the other's authority. If we consider its entire history, it has been impartial, as resolute in restraining the nation as the states. If its action has been more frequent against the states than the nation, that must be attributed to the fact that there are many states on the one side to trespass, and only one nation on the other. From the time of Marshall to our own era of child-labor decisions, the Court has uniformly recognized and enforced the division of power between the two governments. During the reconstruction period, when the relation of the states and the nation was presented in its most serious form, the Court condensed our polity into a sentence that has become classic: "The Constitution in all its provisions, looks to an indestructible Union, composed of indestructible States."

We are witnessing today both in public opinion and in the decisions of the Supreme Court a rebirth of the doctrine that the sovereignty of the states within their sphere is an indispensable part of our political scheme. The contrast between this view and that of Dr. Willoughby is brought out if the foregoing statement of the Supreme Court is set over against the following: "The Central State being admittedly sovereign and the member states not sovereign, their governments may properly be regarded as organs through which the Central State exercises its sovereign will in the several areas of the non-sovereign member States." How does Dr. Willoughby establish this supreme sovereignty of the union over the states? His view is expressed in a single sentence: "Under the amending power, by a vote of three-fourths of the States acting through their legislatures or specially convened conventions, according as the one or the other method is proposed by Congress, it is possible to take away from any given State, against its will, and by a perfectly legal process, any or all of the powers which it now possesses.

To convert this view from theory into fact, the nation must first get the consent of two-thirds of the representatives of the states in Congress, and must then secure from three-fourths of the states their approval of their own destruction. The remote possibility of such an occurrence reduces to the vanishing point the alleged sovereignty of the nation over the states. Such a theory reminds one of Emerson's road that changed into a squirrel's track that went into a hole in a hollow tree. Why such an awful name as "sovereignty" for such a remote and practically non-existent power?

At the present time the doctrine of sovereignty has only a theoretic interest. It had its origin in a period when "church and state, pope and emperor, emperor and king, king and baron, lord and vassal were in actual contest for supremacy. It attained its full development in the conflict between nation and state in our own country and between emperor and popular authority in Germany. All this has become history. No civilized country now presents any such rivalries. No civilized State thinks today of exercising absolute and unlimited power. The abstract conception of such a power as being always within the purview of the State is no longer worthy of a large place in political science.