succeeded in setting aside its own selfish interests and in acting on behalf of the general welfare. The protection of professional privilege and status forms only a minor part of its concern; and its main efforts are devoted to the formulation and promotion of legislative reforms affecting the entire community. Thus its function takes on a higher rank than that of the bar societies familiar to our own people. It cannot be said that our bar has in the same field done all that the community might have expected of it. But the example of the American Bar Association may well serve to show what valuable assistance can be rendered to the legislature by an organized bar which possesses not merely professional competence, but also a keen understanding of the social and economic needs of the nation." This essay ought to be read with pride and with humility by every member of the Association.

Mr. Maynard's essay on the Declaratory Judgment describes the English act and its employment in English practice; the American movement, with the Uniform Act drafted by the Commissioners; and the German type of Statute; and ends with a brief survey of the possibilities in France, where as yet the expedient seems to exist only by implication. For the United States, the author brings the story down to the first draft of the Commissioners' Uniform Act in 1921, and the legislation of six states in the same year; and his study is well documented by reference to the principal landmarks of the literature, such as the essays of Borchard and Sunderland. It is pleasing also to note that the Bulletins of the American Judicature Society have been esteemed by the author as a valuable source of information. The subject is skillfully treated, with full appreciation of Anglo-American technicalities, and is evidently one in which the French legal system can well profit by a study of experiments and experience recorded in the Anglo-American modern system.

Mr. Fouilland's study centers on the great case of Allen v. Flood, in 1897-the case which every American law student has perused for now a quarter of a century. The boycott, the black list, and other types of weapon used in the industrial struggle for supremacy, form the theme of this case; and Mr. Fouilland's treatment consists in an elaborate analysis of the several judicial opinions, with a translation of salient passages and a running commentary on the reasoning of each judge. The author's comprehensive familiarity with the subject evokes illuminating references both to the earlier cases-Lumley v. Gye, Mogul S. S. Co. v. McGregor, etc.-and to the later reaction in Quinn v. Leatham and the legislation of 1906. But his main treatment is confined to Allen v. Flood; for this volume forms only the second in a sub-series of three; the first (from another hand) will deal with the prior developments of doctrine, and the third with the subsequent ones.

If French lawyers can profit from such a comparative study of the English leading cases, it is certain that Anglo-American lawyers. can also profit from the French jurist's treatment of them. One of the valuable features of the book, for us, is the light thrown on our own law by the analogy of the principle well-known in French

law under the term "l'abus des droits," or, "misuse of rights." (We insist, by the way, on translating "abus" as "misuse," not "abuse"; for we have believed that the latter word, sometimes used in AngloAmerican translations, gives a needlessly false implication.) The time-honored maxim, familiar since Smith's Leading Cases, that "an act otherwise lawful, although harmful, does not become actionable by being done maliciously" (L. J. Lindley, in Quinn v. Leatham) has been discussed by Anglo-American lawyers for three generations as if it represented a solution of their own private problem. But across the water the same conflict of law and morality has been proceeding for an equal period, in Continental law, under the epithet of "misuse of rights"; and a veritable library of literature has accumulated upon the subject. We learn, moreover, from Mr. Fouilland's footnotes, that the theme is a world-wide one, for in Mohammedan law "this principle has received an extraordinarily wide application, and has resulted in the overthrow of the boundary between law and morals"; and a modern Turkish author's monograph on this subject (published in French, also under Professor Lambert's auspices) has become the center of discussion for jurists as far afield as Kohler in Germany and Carusi in Italy. Such comparative studies serve to teach us that fundamental problems of this kind can never be our own local possessions, and that much is to be gained by a survey of doctrinal solutions in other systems of law.

These first-fruits of Professor Lambert's Institute of Comparative Law are to be heartily welcomed as tokens of the new awakening of mutual interests between the legal professions in France and in America. They are brilliant demonstrations of the standards attainable by sound French scholarship even in such an alien and complex technical field as that of Anglo-American law, and they vindicate amply his intelligent faith in the needs and the possibilities of university activities in the practical study of comparative law.

J. H. W.

THE HISTORY OF CONSPIRACY AND ABUSE OF LEGAL PROCEDURE. By Percy Henry Winfield. Cambridge: Cambridge University Press. Pp. xxvii + 219.

This volume is the first of a series entitled Cambridge Studies in English Legal History. The Editor is Harold Dexter Hazeltine, Downing Professor of the Laws of England in the University of Cambridge, well and favorably known as a legal historian. The series is intended to include, first, monographs upon particular heads or special topics in the law, and, second, legal-historical texts not heretofore adequately published. The series in general scope is to show not only the development of English law, but also its place in comparative jurisprudence.

Until this work is done a general history of English law cannot be written. All the histories now give the false impression that English law prior to 1485 lacks organic connection with our present law. This impression arises from accidents for which the law is

not responsible. At the beginning of Edward I's reign the language of the law changed from Latin to Anglo-Norman and in Henry VIII's time its language changed from Anglo-Norman to English. At both periods the law lost touch with its preceding literature. The development of the law was greatly hindered by the evolution just before Edward I of a competent law-making body with its dogma that an act of the legislative body is required to change the law.

The dogma gives to English legal development a surface appearance of a Register of Writs reigning supreme, of a law that was a mere commentary upon writs, of a system where all the work of altering the law was done under the surface by adapting writs to a social condition, changing from one of status to one of contract, where the law finally emerged tied down to its four actions of contract, four of tort, and one to recover real property, with a vast field occupied by the chancery jurisdiction. This system required both chancery law and so-called common law to be examined to ascertain the substantive law, but by a curious misnomer, the chancery law, which was so distinctly and purely a common law, became differentiated from the miscalled common law.

It is unfortunate that the first monograph in this series should be upon such a subject as the history of the doctrine of conspiracy in the law, whose history requires great ability in separating substantive law from procedure. The title of Mr. Winfield is twofold, conspiracy and abuse of legal procedure, in other words, conspiracy which is today a distinct head in criminal law is coupled with the action of malicious prosecution and other abuses of legal procedure, with which conspiracy has no connection. This results from the fact that Mr. Winfield has written a treatise on present-day malicious prosecution, and this book is an introduction. We shall now point out the reasons that make this history inadequate.

The object of the history of a legal doctrine is to show how the law comes to be what it is. An author should, therefore, first in his own mind take the law as it exists today and work back through the history of the law to the beginning of the doctrine. Then having his ground prepared, he should begin his history with the beginning and chronologically, by the method of history, show the development from the beginning, illustrating his subject by the social environment, for there can be no application of a rule of law to a non-existent state of facts. One thing must be avoided and that is the giving of a false impression by placing in apparent chronological juxtaposition developments that are hundreds of years apart.

One finds that a conspiracy today means the agreeing to do an unlawful act either as an end or a means, and conspiring necessarily includes the concurrence of two or more. We, however, recognize a clear distinction between conspiracy treated as a crime and as an act with merely civil law consequences. While the mere agreement is a crime, it has no civil consequences as a civil injury until some act be done to further the conspiracy, resulting in damage to personal or property rights. As a civil injury the antecedent conspiracy

is immaterial. It serves to identify the wrongdoers and to show that an act done by one may be lawful, but by the concurrence of a number may become unlawful. Perhaps it should be added that the multiplying of lawful acts to achieve the end may become an unlawful means.

Generally speaking it will be found that the original rule of substantive law was that any injurious interference with another's personal or property rights was unlawful, and common law courts afforded both what we call common law and equitable remedies and in many cases gave declaratory judgments. Since there was, prior to 1400 at least, no such condition as employer and employee, the nearest approach to our situation would be the services owed by villein or free tenants to the lord of the manor or to a mill or the like. In the Register are the writs to compel "A" to make suit to "B" to his mill, to make "A" do the rightful services that he ought to make, to make suit to the hundred and mill, etc. There is one curious writ that "A" permit villeins to make suit to "B's" mill, which looks like a concerted unlawful interference and probably points to a case in Bracton's Note Book where men of Stafford interfered with those owing service to a mill, by attempting to intimidate the suitors. Certain of the interferences were usually done by a concert of wrong-doers to abuse legal proceedings, and although the existing law was adequate, the law-making power considered it necessary to intrude. As is usual, the statute passed was not accurate in its definition. The statute defined a wrong done by a word describing one manner of doing the wrong. In consequence the word conspiracy became a misnomer, for precisely the same wrong could be perpetrated by concerted and by individual action. Thus acts came to be called conspiracy which had in them no element of actual concert, or where concerted action was immaterial.

Another fact to be clearly pointed out is that at the early stage certain actions were mixed as to civil and criminal character and the usual purpose of illegal conspiracies was to use court processes for purposes of fraud. The fact necessary to explain many things in this connection is the function of the assize or jury in early law. It was a body of twelve men, whose testimony was the sole evidence of the fact to be found. They, if they needed evidence, obtained it out of court. The point of time when this body changed to a jury which heard evidence in court must be carefully shown with the resultant changes, or the confusion becomes inexplicable.

In early law, Bills in Eyre cut a great figure as to conspiracies, just as did the chancery court. The fact that a bill in equity from earliest times always charged a conspiracy must be carefully pointed out with the reasons for it. The history must carry the chancery back to the earliest cases and correct the wrong impressions that now exist as to early chancery law. The narrowing power of the law courts, the widening remedies of the chancellor to set aside judgments and to enjoin the parties for fraud involving conspiracy are necessary to find the substantive law.

In this way the history of the substantive law can be rescued from mere procedure of the courts. The law of the chancellor was a part of the substantive law, and while a man might be denied a remedy for a wrong in the law courts, it did not show that the substantive law failed to give him relief. The prolific subject of Bills in Eyre, the early cases in the Crown Council, and later cases in the Star Chamber all enter into the story as to substantive law. Unfounded quasi-criminal actions wrongly instituted, now the law of prosecution without probable cause, fraudulent judgments obtained by imposition on the court, champerty and maintenance, as applied to the situation before the jury heard evidence in court, the action on the case for deceit, the gradually disused action of attaint, the equitable procedure to correct the law courts by granting new trials, the so-called writ of conspiracy, the gradually developing common law crime of conspiracy, the development of the doctrine that conspiracy requires the agreement of two or more, the gradual evolution of the doctrine that in civil actions conspiracy was not a wrong in itself, all enter into the long and complicated tale. Throughout the historian must not confuse the whole substantive law on the point with accidental circumstances. One is given a wholly erroneous impression of English law, if he thinks that Mr. Winfield shows at any given time, what was the substantive law regarding an injury to one's property rights by a concerted action of wrongdoers. The law in one form or another gave a remedy. If it failed it was due to judicial or jury corruption or to ignorance of lawyers in not knowing to what court to apply. Mr. Winfield has confined himself to a misleading history of a few actions at law.

While this book is disappointing, much valuable information is contained in it. Anything on the history of the English law is valuable and ought to be read by lawyers. We find it, however, necessary to say that the book, being upon the abuse of legal procedure, is the last place in which we expect to find abuse of the English language. On page 119 is this: "Not but what there are signs of action upon the case long before Fitzherbert." On other pages is a like usage. Can such things be on the learned banks of the Cam? When "what" seeks to devour "that" used as a conjunction, we are horrified, even in Chicago. Similarly on page 73 the author writes: "A clerk took down in writing one of the defendant's information." Evidently he means: "A clerk took down in writing the information of one of the defendants," or shortly, "A clerk took down a defendant's information." It does not help the author's text to change the place of the apostrophe and write: "A clerk took down one of the defendants' information." There are some things which cannot be achieved in English. It is not an agglutinative language. We must object to making the whole phrase "one of the defendants" a single word, to making it singular by dropping the final "s" and then to putting it into the possessive case by adding "'s." Jus et norma loquendi has rendered the innovation offensive in appearance and incapable of meaning.

JOHN M. ZANE.