Baty: Loan and Hire. (Arthur L. Corbin) BOOK REVIEWS 419 Blakemore and Moore: Chamberlayne's Handbook on Evidence. (Edmund 845 205 619 716 717 Burnett: Cases on the Law of Private Corporations. (I. Maurice Campbell: The Law of War and Contract. (Arthur L. Corbin) Clark: A Treatise on the Law and Practice of Receivers Ferri: Criminal Sociology. (William Healy) Fiore: International Law Codified and its Legal Sanction. (Tr. Edwin M. ... Henderson: The Position of Foreign Corporations in American Constitu 420 204 103 100 tional Law. (Edwin M. Borchard) 523 Jenks: The Government of the British Empire. (G. B. Adams) 297 Documents. (Joseph P. Chamberlain) 519 Kales: Cases on Future Interests and Illegal Conditions and Restraints. (Charles F. Dutch) Kocourek and Wigmore: Formative Influences of Legal Development. (Edwin B. Gager) 617 Lévy-Ullmann: Eléments d'Introduction Générale à l'Etude des Sciences Juridiques: I. La Définition du Droit. (Edwin M. Borchard) Montgomery: Manual of Federal Procedure. (John Wurts) 419 207 Root: North Atlantic Coast Fisheries Arbitration at The Hague: Argument on behalf of the United States, ed. Robert Bacon and James Brown Scott. (Edwin M. Borchard) 297 Rosenbaum: The Rule-Making Authority in the English Supreme Court. (Herbert Harley) 203 Scott: James Madison's Notes of Debates in the Federal Convention of 1787 and their Relation to a More Perfect Society of Nations. (Fred B. Hart) 843 Shelton: Spirit of the Courts. (Karl N. Llewellyn) 719 847 The maintenance of the social equilibrium is accomplished by the state through the administration of justice.1 This is the modern substitute for the primitive practice of self-help. While the dawn of civilization reveals but crude notions of judicial institutions, one of the first manifestations of organized society was the creation of machinery for voluntary arbitration as an optional substitute for private vengeance and self-help, the acknowledged methods of insuring respect for the societal rules. But the decisions of the first judges, who were merely arbitrators, had only a moral force; and if the complaining litigant was dissatisfied with the award, he could still resort to self-help. For its own protection against the resulting anarchy and violence, organized society, having acquired the power, took upon itself the monopoly of administering justice through established courts. But though this evolution is one of centuries, the fundamental theory still prevails that the redress of wrongs is the raison d'être both of violent self-help and of its more civilized substitute, the courts; and the notion of vengeance, while rejected by modern schools, is still evident in the penalties imposed in the administration of 'The complex relationships involved in the notion of justice are not here of immediate concern. The equilibrium is established through law, which may be called distributive justice, and maintained through the enforcement of law, which may be called corrective justice. It is in this latter aspect of justice that our immediate interest centers. See on the general subject, Pulszky, The Theory of Law and Civil Society (London, 1888) ch. XII. criminal justice and in their tempered and better adjusted substitute, damages, awarded in the administration of civil justice. The commission of wrong, public or private, is essential, so we are taught, in order that the judicial arm of the State may be invoked to restore the social equilibrium.2 Thus Blackstone says: "The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society." This theory was fundamental in the common law. Yet a study of modern social and industrial conditions emphasizes the conviction that the social equilibrium is disturbed not only by a violation of private rights, privileges, powers and immunities* but by the placing of these individual advantages in grave doubt and uncertainty. If the status of children as legitimate or illegitimate or of persons as married or unmarried is uncertain, not only the individual but the State has an interest in having the uncertainty settled by an authoritative determination. If the title to property is uncertain, the State, as well as the individuals concerned, has an interest in removing the uncertainty, and within certain limitations courts of equity entertain jurisdiction to remove clouds from title." If the meaning of a contract is in doubt, it must be broken in order to obtain an authoritative construction of it, with expensive litigation to boot. Similarly, apart from the trustee's bill for advice, a hostile attack must generally precede the adjudication of conflicting claims under a will. To determine these questions, which are illustrations merely, our law now requires an elaborate procedure involving delay, uncertainty and considerable expense, when all that is desired is an authoritative determination of a simple issue of fact or of law. Parties 'Salmond, Jurisprudence (4th ed.) secs. 26, 27. Growth and Function, 45 et seq. Carter, Law: Its Origin, 3 Bl. Com. 2, 15. See also Pound, the Common Law (2d ed.) 305 et seq. istered only against wrongdoers, in act 'In the course of this study we shall adopt Prof. Wesley N. Hohfeld's valuable analysis of jural relations as first set forth in (1913) 23 YAle Law JOURNAL, 16. These relations may most readily be presented in Prof. Hohfeld's scheme of opposites and correlatives: Readings on the History and System of Salmond, op. cit. 71: “Justice is adminor in intent." The importance of this analysis is revealed throughout the subject of declaratory judgments. See particularly Guaranty Trust Co. v. Hannay (C. A.) [1915] 2 K. B. 536, 548, Buckley, L. J., and p. 571, Bankes, L. J. 'As a rule, however, only where the plaintiff is in possession. The dispute of title to personal property cannot, except in rare instances, be settled in any such manner. See Infra, p. 30. are compelled to indulge in legal hostilities whether they want to or not in order that their legal relations may be cleared of doubt or uncertainty. That the law has not been oblivious to the necessity of certainty and security in legal relations is evidenced in the fact that certain agreements in order to obtain judicial recognition must be reduced to writing or must be recorded. It is also evidenced in the employment of such equitable remedies as bills quia timet, bills of peace and bills to remove cloud from title, bills for the rescission and cancellation of written instruments, in the action to perpetuate testimony and in the bill for injunction. While the general purpose of these equitable remedies is to create security, remove uncertainty and prevent litigation, many of the remedies are cumbersome and their grant is dependent upon very technical conditions precedent. Take, for example, the writ of injunction. Aside from its curative functions in affording redress for certain kinds of continuing wrongs, it has important preventive functions. One of the principal conditions of its issuance, however, is the inadequacy of the remedy at law, and as damages are deemed a sufficient palliative for most legal injuries,-again on the theory that justice functions with entire success if it gives money compensation after the commission of a wrong—the injunction will be issued but rarely to restrain a breach of contract or a trespass." 'The bill quia timet is a writ of prevention designed to avoid possible future injury to the applicant's property and to preserve it for its appropriate uses. This is effected by appointment of receivers or conservators to collect income, or by a demand for security. The injunction to prevent waste, etc., is in the nature of a bill quia timet. The bill of peace is designed to establish and perpetuate a right or privilege which may be controverted by different persons or at different times and is intended to prevent a multiplicity of suits. The bill to remove cloud from title and the cancellation of outstanding instruments which inequitably affect a person's rights or privileges are in the nature of a remedy quia timet. Sometimes the decree may in such cases operate as a declaratory decree. Infra, p. 30. The action to perpetuate testimony, a provisional remedy well known in Anglo-American and in the civil law, is designed to preserve and perpetuate for future use testimony which is in danger of being lost. These equitable remedies are fully discussed in works on equity, particularly in those of Story and of Pomeroy. All these remedies have a limited application, and their grant is conditioned upon the fulfillment of strict preliminary requirements; and while courts of equity have much flexibility in adapting their relief to the situation presented, they incidentally have wide powers in imposing upon applicants for the exercise of their functions such conditions as they may deem necessary to do equity in the case. 'Generally only in the case of such contracts as agreements not to carry on a trade, contracts for personal services of exceptional character, certain covenants restricting the use of land, or where some distinctly equitable ground such as the avoidance of a multiplicity of suits can be shown to exist. Usually an injunction against breach will be granted only where specific performance would be decreed. Courts of equity are now somewhat more liberal in granting relief The limited scope of these various kinds of preventive relief against. insecurity and the disturbance of the status quo makes it all the more necessary that we examine with care that instrument of preventive relief known to the English and other legal systems as the declaratory judgment. The distinctive characteristic of such a judgment is that it carries with it no coercive decree or order commanding the defendant or the sheriff to do anything, an inherent element of all executory judgments. Its purpose is to afford security and relief against uncertainty and doubt. It does not necessarily presuppose culpable conduct on the part of the defendant, but it enables any party whose rights, privileges, powers or immunities, whether evidenced by a written instrument or not, have been disputed, endangered, threatened or placed in uncertainty by another person to invoke the aid of a court to obtain an authoritative determination or declaration of his rights or other legal relations. At the outset it will be well to circumscribe the concept of "declaratory judgment." In a sense all judgments of courts declare jural relations, but most of them, being called into operation by some past or immediately threatened violation of a right, are followed by further relief in the form of a judgment for the payment of damages or a decree for an injunction. These judgments require the losing defendant to do something, and may be called executory, i. e., they may be executed. They always involve rights and duties. A second class of judgments likewise determines or establishes a jural relation; yet they are not followed by a decree ordering the performance of some duty but merely by a decree which effects some change of status, the judgment thus constituting merely a source of new jural relations. Such are, among others, judgments of divorce or of annulment of a voidable marriage, appointments of guardians or receivers, admissions of wills to probate, judicial declarations of death or of majority in civil-law countries, the judicial authentication of arrangements in which the public interest requires an official protection of private jural relations, such as liquidations, certain changes in corporate organization, the administration of trusts, etc. They may be the result of contentious or non-contentious proceedings, although the latter are practically administrative rather than judicial functions. These judgments, because they effect a change of status and are primarily a source of new jural relations, may be called constitutive or, as we by injunction against trespass than were the early chancery courts, but the narrow interpretation of "inadequacy of legal remedy" still confines the injunction to a limited class of trespasses. See Moore v. Halliday (1903) 43 Oreg. 243, 99 Am. St. Rep. 742, 72 Pac. 801 and note thereto; Xenia Real Estate Co. v. Macy (1897) 147 Ind. 568, 47 N. E. 147 with quotation from Pomeroy. 8 See In re Guardian Assurance Co. [1917] 1 Ch. 431. Toronto Corporation v. Toronto Railway (P. C.) [1916] 2 A. C. 542. |