Westel Woodbury Willoughby.

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book has a fair index and the penultimate chapter contains a discussion
of the source and secondary materials pertaining to Hamilton.

MiLLEDGE L. BONHAM, . Jr.

Hamilton College.



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BOOK REVIEWS 719

Leonard Wood — Administrator , Soldier and Citizen. By Wil-
liam Herbert Hobbs. With an Introduction by Henry A.
Wise Wood. (New York: G. P. Putnam's Sons. Pp. 272.)

This book is not a formal biography. In its nine chapters there is a
discursive treatment of the chief phases of General Wood's career,
mingled with much adverse criticism of the present administration's
attitude toward the war both before and after America's entrance into
it. The author's point of view as to national poUcy may be gathered
from the following statement on pages 40 and 41 :

"If time can be found for full deUberation upon the Utopian pro-
posals of the pacifist set forth with so much noisy propaganda, the
sound sense of the nation may be rehed upon to assert itself in their
repudiation; for Americanism has from the beginning of our history
been a dominant national trait, and throughout history nationalism
has always been immensely stimulated by triumphs in foreign wars."

The book is obviously a campaign document and not a very good
one. It is so fulsome in its eulogy of its hero and so bitter in its de-
nunciation of all who disagree with him, but above all of President
Wilson, that it overshoots its mark in both directions. Even a cam-
paign document should present some appearance of judicial balance
and desire to set forth the truth. If it were not for the descriptive
words on the title page, more than half of this book would convey the
impression that President Wilson is its hero in the sense in which Satan
is the hero of Paradise Lost. The carelessness with which the book is
prepared appears from the statement (p. 36) that after attending
the German army manoeuvres in 1902, General Wood returned to warn
his government of impending danger, but *Hhe warning was unheeded
and bitterly resented by the pacifist Government in power." The
pacifist head of the American government in 1902 and for six years
thereafter was Theodore Roosevelt.

Lawrence B. Evans.

Washington, D. C.

The Obligation of Contracts Clause of the United States Consti-
tution. By Warren B. Hunting, Ph.D. (Johns Hopkins
Univ. Studies in Historical and Political Science, Series xxxvii,
No. 4. Baltimore: The Johns Hopkins Press. 1919. Pp.
X, 120.)

The author of this monograph was killed on July 15, 1918, while in
service in France, with the result that the title under which it is pub-



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720 THE AMERICAN POLITICAL SCIENCE REVIEW

lished indicates the scope of its original design rather than its actual
performance. The subject to which it is essentially devoted is the
historical and legal basis of the Dartmouth College decision.

By section 10, Irticle 1 of the Constitution, the states are forbidden
to pass laws ''impairing the obhgation of contracts." In his conclud-
ing paragraph. Dr. Hunting writes of this provision: "It is very plain
that the Convention had in mind only retrospective laws as impairing
the obligation of contracts, and it is almost equally plain that they
had in mind only contracts of private individuals." In the face of
this fact he advances the thesis that the extension to public grants
which the clause just quoted received in the decisions in Fletcher v.
Peck, and Dartmouth College v. Woodward had a good deal of basis
in accepted legal and political theories of the time, and in the common
law as well.

His argument may be summarized as follows: At the common law a
franchise was property. The grant of a franchise, like that involved
in Dartmouth College v. Woodward, stood therefore on the same
legal footing with a grant of land, such as was involved in Fletcher v.
Peck. A grant, however, is but a conveyance, and a conveyance is
-characterized by writers on Naturrechi, as well as by writers on the
civil law, as ''a contract." Indeed, Blackstone himself was quoted
by Marshall in Fletcher v. Peck as classifjdng all contracts as execu-
tory and executed, and as declaring that a ''contract executed differs
in nothing from a grant." But, Dr. Hunting continues (p. 34),
"call a conveyance a contract and you raise the suggestion that there
must be an obligation; you emphasize the fact that the grantee has his
rights merely by the consent of the grantor; you obscure the part
which the state takes in the matter; you suggest the idea that if one
man obtains his right solely from another, he necessarily holds it sub-
ject to the will of the latter, who can go no farther than to bind him-
self never to exercise the power of revocation." Marshall's assertion,
therefore, in Fletcher v. Peck, that a grant, though of itself an exe-
cuted contract, implies an executory contract on the part of the grantor
not to reassert his right over the thing granted, was not extravagance,
albeit the rule of estoppel with which he sought to support it had no
application to the case.

This argument breaks down at an essential point. None of Dr.
Hunting's citations (pp. 19-36) go to prove more than the obvious
fact that a conveyance must be preceded by a contract — ^the fulfillment
of which is compellable at English law by an action for specific per-



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BOOK REVIEWS 721

fonnance — not that a conveyance is followed by an obligation in
perscmam against the grantor. The test of the validity of MarshaH's
doctrine that an implied contract supplements a grant is quite simple.
It consists in the question whether an action for breach of contract
would lie against a grantor who attempted to disturb the grantee in
the use of the thing granted; whether, in fact, a grantor would find him-
self in a different situation from that of anybody else attempting the
same thing. The answer being no, it follows that Marshall's implied
contract theory was pure moonshine.

The fact is that Dr. Hxmting demands too specific a provenance for
the doctrine of Fletcher v. Peck and Dartmouth College v. Wood-
ward. The basis of that doctrine was not legal or even theoretical
in a narrow sense; rather it was ethigal and it is shown to be so in Mar-
shall's own words in both cases, as well as in the later case of Ogden
V. Saxmders. In this connection Dr. Hxmting seems to have over-
looked the significance of Marshall's admission in the Dartmouth
College case that Parliament would have had the power to revoke
the charter the moment it was granted, though all would have recog-
nized "the perfidy" of the act, and that New Hampshire could have
done the same thing at any time till the adoption of the Constitution.
This admission seems to infer that Marshall was well aware of the dis-
tinction which the notion of parliamentary sovereignty had established
between moral and legal obUgation. Indeed, Dr. Hunting himself
speaks at one point (p. 75) of "a state whose legislature is legally
omnipotent" though in other passages (e.g., pp. 71 and 94) he seems
to regard Parliament's omnipotence as either a crude fact which had
not at this date been assimilated to the law, or as something illegal.
I must add my conviction that Dr. Hxmting has exaggerated the close-
ness of connection in Marshall's mind between Fletcher v. Peck and
Dartmouth College v. Woodward. It is true that Story and Wash-
ington both bxiild directly upon Fletcher v. Peck in their concxirring
opinions in the latter case; but Marshall does something qxiite different.
This, however, is a matter on which there is no space to enter upon
here. i .

Dr. Hunting's criticisms of Shirley (pp. 60 S. and 94 flf.) are more
convincing than his animadversions upon Bartlett's argument (pp.
76-82). His showing (pp. 72-75) that the distinction between public
and private corporations was not clearly established at the time of
the Dartmouth College decision is important. His suggestion in a
footnote (p. 88) that "a legislative act repealing misused or non-used



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722 THE AMERICAN POLITICAL SCIENCE HEVIEW

franchises should [not] be denied effect by the courts, if the fact of
misuser or nonuser be shown," while it overlooks Marshall's invocation
of the principle of the separation of powers in an analogous matter,
is also important; and the same must be said of his remarks on the
subject of "consideration" (pp/ 10&-107), a topic to which he had
designed to devote an entire chapter. The examination of the views
of James Wilson, the reputed framer of the obligation of contracts
clause (pp. 115-116), would have been strengthened by recourse to his
opinion in Chisholm v. Georgia.

Dr. Hunting has left us a study demanding the serious attention of
students of American constitutional law. Many of the questions
which it raises probe very deep. The answers which it returns to these
questions, if open to challenge, are for that very reason provocative of
thought. Both questions and answers reveal a mind of unusual pene-
tration and independence, the loss of which to the profession must be
cause for deep regret. This volume is worthy of its place in the dis-
tinguished series in which it appears.

Edward S. Corwin.

Princeton University.

The National Government of the United States. By Everett
Kimball, Ph.D. (Boston: Ginn and Company. Pp. v, 629.
Appendix.)

Because it is the newest book upon the subject as well as the only
first-rate college text of recent date dealing exclusively with the na-
tional government. Professor Kimball's work has been received with
more than usual interest by those engaged in the study and the teach-
ing of American government. The expectations to which its announce-
ment gave rise have been fully reaUzed, and its quality and character
undoubtedly will gain for it not only a wide use in the class room, but
also a permanent place as one of the standard works of reference upon
the subject. It is peculiarly well adapted for both purposes, and
perhaps its distinguishing characteristic is that it combines success-
fully the quahties of a Workable textbook with those of a treatise.

Professor Kimball frankly describes the government from the con-
stitutional viewpoint. "I have endeavored to show the historical
origins and the development of our national poUtical institutions and to
present an adequate picture of the actual workings of the government,"
he writes. ''But I also have attempted never to lose sight of the



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BOOK REVIEWS 723

fact that the Constitution is the supreme law of the land, and its
interpretation by the Supreme Coiul is, until altered, authoritative.
The important fact is emphasized that in all phases of our national
life the government is a government of law." The frequent and at
times extended quotation from the opinions of the Supreme Court is
declared to give the book "a two-fold character, that of a textbook in
which institutions are described and analyzed, and that of a source
book in which appear the actual words used by the court in expoxmd-
ing or limiting the powers of the government."

In the author's hands this method has produced a book which has
not been surpassed in the presentation of the fundamental facts con-
<5eming the government of the United States. The student who
masters its contents will have acquired a grip upon the essential prin-
ciples of our national political system which will give him a firm foun-
dation for subsequent poUtical thought apd action. He also will have
gained a practical imderstanding of the actual processes of the govern-
ment and the poKtics of the nation; for Professor Kimball has turned
to the Supreme Court to find out what the government actually is
rather than for an exposition of what it ought to be, and in addition
he has presented an adequate description of the political as contrasted
with the purely legal aspects of our institutions. There are no better
chapters in the book than the two entitled "Congress at Work,"
and none better anywhere upon this subject.

The book is arranged along conventional lines. The first four chap-
ters give the constitutional background, one, two and three being his-
torical and four expounding fimdamental constitutional principles.
Pohtical issues and parties are described and discussed in the two
following chapters, after which ten chapters are devoted to an account*
of the organization and functions of the three great departments.
This part of the book is about equal in volmne to the entire space
devoted to the national government in most of the other standard
texts (Kimball pp. 423, Bryce 410, Beard 437, Munro 387). The
remaining six chapters treat of the war powers of Congress, finance,
the regulation of commerce, the federal police power, foreign affairs,
and the government of territories. The Constitution is printed as an
appendix and there is an excellent index.

From the standpoint of thoroughness and completeness Professor
Kimball has left Kttle to be desired. Few questions connected with
the national government have escaped consideration. Occasionally
one would wish for fuller discussion, as in the case of citizenship or of



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724 THE AMERICAN POLITICAL SCIENCE REVIEW

presidential primaries. In general, too, it may be said that more
attention has been paid to the organization and powers than to the
actual operation of the various parts of the government, although
it is not intended to imply that the latter phase of the work is inade-
quate. The chapters on the war powers, the regulation of commerce,
, the national police power, and, in lesser degree, that on finance, would
not be out of place in a treatise on the constitutional law of these vital
subjects.

This book is singularly free from the minor errors which sometimes
mar an otherwise excellent work. The quotation, "take care that the
laws be faithfully enforced," (p. 59) is the sort of a slip that is particu-
larly hard to detect once it has crept into a manuscript. The number
of Republican votes required to entitle a congressional district to its
second delegate in the Republican national convention (p. 158) is
7,500, instead of 7,000. There are those who would question the
"absolute accuracy" of referring to "a citizen of the United States
and the resident of a state" (p. 76). But there are few instances in
which those who use this text will have to correct it. Clarity rather
than brilliancy marks Professor Kimball's style, and on the whole the
book and the several chapters possess unity in satisfactory degree.
An exception, perhaps, is the treatment of the election of the President,
particularly in connection with the composition of the national con*
ventions (pp. 152, 156, 158). The nature of these criticisms, however,
simply emphasizes the excellence of the production. As a text and as
a treatise this book is assured of a permanent place in the literature
of American government.

Ralston Hayden.
University of Michigan.

The Foreign Service: Report on. By the Committee on Foreign-
Service of the National Civil Service Reform League. (New
York: 8 West 40th Street. 1919. Pp. 322.)

This report is the result of a most searching investigation both
abroad and in this country concerning the foreign service of the United
States. Senators, congressmen, officials of the departments of state
and of commerce, members of the diplomatic and consular branches
of the service, and others were called on for information and suggestions.
The committee engaged in this survey was composed of EUery C.
Stowell, Chairman, Richard H. Dana, Gedrge T. Keyes, Ogden H^
Hammond, Ansley Wilcox, and H. W. Marsh, secretary.



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BOOK REVIEWS 725

The data presented in this report includes most valuable informa-
tion concerning the organization of the department of stale and of
the whole foreign service, the functions of all officials, rules and regu-
lations on the whole subject, legislation by Congress and interestingf acta
regarding the foreign service of certain other countries, such as Eng-
land, Germany and Japan. Extracts from hearings before congres-
sional committees are also included.

This array of information is of the utmost value to students of
politics as well as to all American citizens interested in the efficiency of
our foreign service. There is a wealth of material in this compact
volimie which might be utilized to advantage by journalists and others
who have occasion to write on subjects affecting our foreign relations.
For example, the testimony of former members of the diplomatic and
consular services, as well as the mass of statistical data is often most
suggestive and full of interest.

The conmiittee has not only gathered its facts with great thorough-
ness; it has intelligently studied these facts, and reached definite con-
clusions of practical importance. Its recommendations are summar-
ized as follows:

"1. That the entrance examinations to the foreign service be im-
proved and placed more strictly on a merit basis

**2. That there be an adequate increase of salaries in the foreign
service

'^3. That embassies, legations, and consulates be purchased in the
principal cities

^*4. That the rule, known as the state quota, according to which
appointments in the foreign service are distributed among the states in
proportion to the niunber of inhabitants, be abolished. ....

'*5. That political considerations be entirely eliminated and that the
merit principle be applied to appointments and promotions in the
foreign service

"6. That the President and other appointing officers be urged to
select the representatives of international conferences more largely
from the foreign service and from the experts in the employ of the
government

'*7. That the Americanization of the consular service be completed
by the appointment of salaried vice-consuls, after examination, to. act
in the place of foreigners now serving etc., .......

"8. That the foreign service be reclassified

''9. That the Department of State publish a Foreign Service Annual.



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726 THE AMEBICAX POLITICAL SCIENCE REVIEW

^'10. That the organization and personnel of the state department
be perfected and more adequate compensation provided

''11. That the relations between the various departments, boards,
and commissions concerned in the supervision of control of our foreign
affairs be carefully defined

*'12. That Congress be urged to enact a law to cover the above recom-
mendations in so far as possible, and that the President be urged to
issue executive orders to supplement and complete such legislation."

The fifth recommendation to the effect that the merit principle be
applied to appointments and promotions in the foreign service is of
particular interest. This suggestion originated with Congressman
Rogers of Massachusetts, whose labors in behalf of the foreign service
deserve highest praise. It reads: "That the President be urged to fill
the post of minister by the promotion of capable officers in the foreign
service and that when a vacancy occurs the secretary of state be re-
quired to submit to the President for his consideration the names of
secretaries and consuls who merit promotion." In limiting this re-
quirement to ministers and exempting ambassadors, the committee
has prudently compromised by recognizing the exigencies of the situa-
tion which at times demand that the President should be free to select
the most representative Americans for such important posts as London,
Paris, and elsewhere.

In its treatment of the question of the place of the "gpoils system"
in appointments, the committee is guilty of a rum sequitur in its argu-
ment when it sajns: "The necessary support for measures of recognized
value can at times be secured only at the price of poUtical barter and
humiUating compromises. If the President were protected against
these blackmailers and against this political pressure, needed measures
of legislation could be secured more easily on their merits, or if not,
the President and party leaders would be forced to maintain a cam-
paign of education to bring the legislators in line and force them to
enact the meritorious legislation." To protect the President by weak-
ening his power of appointment seems a rather curious suggestion.

There may be reasonable doubt whether the time has yet come when
the President should be restricted in his appointments of ministers to
those already in the service, but the propositi that before making an
appointment he should be required to consider the names of secretaries
and consuls deserving promotion through merit is entirely reasonable
and felicitous in character. It would constitute a salutory check on
the tendency of Presidents to reward "deserving" partisans, and at



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BOOK REVIEWS 727

the same time would encourage those m the service to seek preferment
through merit.

There is much in this admirable report inviting praise and comment,
but the space allotted this review does not permit. By way of smn-
mary, the report alms first, to furnish acciurate information as to what
has already been accomplished to render the foreign service more
efficient; secondly, to present the actual state of affairs; and thirdly, to
present criticisms and suggestions tending to insure the improvement
of the service along sensible, practical lines. It should be read with
great care by all Americans who desire to see the nation most efficiently
represented abroad at a time when international affairs have become
of such vital significance to the United States.

Philip Marshall Brown.

Princeton University.

Foreign Rights and Interests in China. By Westel W. Wil-
LOUGHBY. (Baltimore: Johns Hopkins Press. Pp. xx, 594.)

As the basis of his work Professor Willoughby makes use of the half
dozen most complete collections of China's foreign treaties, conven-
tions, loan contracts, railway agreements and the like, chiefly Mac-
Murray's, which is the latest and seems to include every obtainable
document down to last year. He next determines the essential chapter
subjects for his book; and here, we conceive, he has lost sight of no
topic upon which light is likely to be sought, whether by specialist or
by general reader. Among these topics are extrarterritoriaUty, foreign
commerce and the rights of foreign merchants, concessions and settle-
ments, leased areas, the open door, Japan's political ambitions in and
towards China, opiiun, China's foreign debts, ndlway loans, and foreign
control. Each of these themes — ^and others no less essential are neces-
sarily omitted — ^has been developed from the appropriate treaty clauses
or other formal stipulations. His explanations and comments are
thorough-going and illuminating. They are never wearisome, as legal
discussions sometimes are; and they are not infrequently reinforced by
appropriate passages from Morse, Bronson Rea, Overlach or Horn-
beck, or from Chinese writers such as Mr. Tyau and Mr. Koo, and by
extracts from the speeches, or despatches or statements of the negotia-
tors and government officials concerned.

From this book as from no other single source, so far as we know,
cdn the financier estimate approximately China's income and her



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728 THE AMERICAN POLITICAL SCIENCE REVIEW

present loan entanglements; the consular officers can here unravel the
perplexities of foreign "settlements," "concessions," courts and juris-
dictions; the missionary can discover just what are his treaty rights of
travel, residence, and land tenure in the interior of the country; and
the merchant can learn his due relations while in China (whether as
buyer, seller, importer, duty-payer or steamer-owner), to other mer-
chants around him and to the officials, Chinese and foreign, with whom
he must deal. The diplomatist, the publicist, the student of inter-
national law, and equally the general reader cannot fail to recognize a
large debt due to Professor Willoughby for this clarifying "handbook,"
as he too-modestly describes his valuaWs and entertaining volume. In
its 600 pages we found not one dull paragraph.

Nearly one quarter of the volume is devoted necessarily to China's
complicated relations with Japan, territorial, railway, military, and
financial, i.e., loans in infinite variety. The Twenty-one Demands,
the Shantung aggressions, the Manchurian encroachments, the secret
covenants secretly arrived at, the riot of unsanctioned and insidious
loans are described in clear direct narration. Article, clause, date,
given without sensational comment, compose a cumulative indictment



Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 72 of 77)