Page:The Green Bag (1889–1914), Volume 14.pdf/185

 154

NEW LAW BOOKS. A Treat1se on Injunct1ons and other Extra ordinary Remedies. By Thomas Carl Spel ling. Second Edition. 2 vols. Boston: Little, Brown and Co. 1go1. (clxii + 1894 pp.) In any analysis of the law a first distinction to be taken is between the law in relation to the right and the law in relation to the remedy, the distinction that is between substantive law and adjective law. And yet that is a partition which in any treatment of any given legal question it is impossible to make; for in any such question right is bound up with remedy and remedy is bound up with right. It is all one issue; of what use is right without remedy, or remedy without right. This work, " Spelling on Extraordinary Re medies," is a treatise upon adjective law; it may then be admitted that it cannot escape consideration of the substantive law; but it must be said that it makes no attempt to avoid discussion of rights and wrongs in general; rather it proceeds upon the theory that the various subjects of the substantive law must be taken up one by one and the remedy designated in each one by one. Thus the author, in effect sets himself the impossible task of writing a book upon rights and wrongs in general and in particular. For example, under Injunction there are chapters : Pertaining to Real Property, Pertaining to Contracts, even Pertaining to Partnerships, Pertaining to Corporations. The explanation of this, and doubtless it is complete, must be the greater value of the work to the lawyer in practice, — if the practitioner gets in one chapter all the law, right and remedy, he is well content, and rightly so. Not all remedies are considered in this treat ise, the extraordinary remedies are its subject. It occurs therefore to inquire what remedies may be said to be ordinary, and what remedies may be said to be extraordinary. There is one funda mental division between remedies, but these words are hardly precise enough to mark it; nor does this author intend exactly that division. Yet, the elemental partition seems to be between a remedy which gives a compensation for the wrong and a remedy which gives a compulsion for the right; in the first the remedy is in dam ages, in the second the remedy is in specie; the first is the characteristic of common law process with its sheriff, the second is the char

acteristic of equitable process with its prison : thus compensatory reparation is ordinary in law, while specific reparation is extraordinary; speci fic reparation is ordinary in equitable process, while compensatory reparation is extraordinary. The author adverts doubtless to the remedy of specific reparation when he defines his field as the extraordinary remedies; but why then in clude injunction at so great length, and at the same time omit specific performance altogether; especially since in case of contract at least these remedies are so interdependent that the result in At equity law itdepends is indeed upon an aextraordinary knowledge ofremedy each. that results in anything else than damages. Of these few extraordinary remedies mandamus is of most importance, at the present time most clearly so. A prerogative writ, mandamus is only granted where in justice and good govern ment there ought to be one, because of defect of police, as Lord Mansfield said. The part the mandamus plays in forcing public officers to the performance of their duties is not commonly appreciated; in a decentralized administration such as we have in all the United States, unless there were such a power in the courts the exe cution of the law would come to an end. At the same time the part that the courts by virtue of the mandamus assume to play in the govern ment is not generally felt. When we see in some States the courts issue mandamus to the gover nors, we begin to inquire whether we have given over all our government to the courts. Truly the opposing argument that our author sets forth should be urged: that under our form of state government, where the powers of government are separated into three distinct branches — legislative, executive and judicial — each should be kept free from interference by either of the others within its proper sphere. More than this, if the courts so assume to con trol the action of the administration they must never interfere by mandamus unless the action of the administration has been beyond all discre tion. That is, the attitude of the courts toward the legislature which supports all statutes that can in any reason be thought constitutional should be taken here also toward the adminis tration. This is what the doctrine of separation of powers m^ans in American constitutional law.