Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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PUBLIC POLICY. This term, in legal acceptation, denotes the principle fo government and law which aims at the general welfare, as distinguished from the welfare of particular individuals, and courts of law do not allow their decisions to conflict with this public policy. Our tribunals do not confine their justice to the parties before them. As plaintiff and defendant are represented by counsel, so the people is represented by the court, and it is its duty to protect the interests of the people. A litigant might prove the clearest right to relief, so far as his adversary is concerned, and yet if his right would in any way injure the public, it must be denied. There are three kinds of relief which the court is bound to refuse on public grounds, viz.: first, that which conflicts with positive law, the expressed wish and command of the people, e.g., relief based on a contract to evade the revenue laws by smuggling; second, that which is immoral or contra bonos mores, i.e., which would have an immoral effect on the public, such as a judgment for rent under the lease of a house for disorderly purposes; third, all other relief which can interfere with the public welfare. Each of these three classes of cases may property be said to be "against public policy", but this expression is usually confined to the last class, and the claims of positive law and public morality are permitted to stand by themselves.


—The third class of cases is somewhat indefinite. The common law always strove to be definite, and sought for exact precedents, Hence a general discretionary power in the court to declare that a contract or will is avoid as against public policy, would seem to be repugnant to the established rules of law. Such a power has, however, been held to exist, and, as might have been expected, it gained currency in an anomalous way. The general principle, that a condition in a contract which is "against the general good" can not be enforced, was recognized in England at a very early date in Sheppard's "Touchstone". Bracton hints at it (book iii., p. 100), and lord Coke seems to regard as void those conditions which are "repugnant to the state". Still, the law on the subject was not developed and formulated until a much later day, when it became closely associated and even identified with the law of wagers. The English judges had by some mischance decided that wagers could be enforced at law, although in other civilized countries the contrary rule prevailed. They discovered afterward how pernicious the effects of betting were, and how much of the time of the courts was wasted in determining trivial questions, but it was too late to retract. They could not then hold all wagers illegal, but they found some relief in the doctrine of public policy. Whenever they could, they decided that particular wagers were invalid, as against public policy, and they displayed considerable ingenuity in extending the number of such cases. Thus, a wager on the sex of a third person was held void, as it tended to call forth indecent evidence, although such evidence would not be considered an objection in any other case. A bet upon an election was not enforced, as it might have influenced votes, and the public is interested in removing such influence from the polls. In short, any wager upon public matters would have been held bad, because it would have created a dangerous interest in public affairs. So in Gilbert vs. Sykes, 16 East, 150, (1812), it appeared that in 1802 Sir Marks Sykes received a hundred guineas from one Gilbert, promising in return to pay Gilbert a guinea a day until the death of Napoleon Bonaparte, who was then first consul. The wager arose out of a conversation upon the probability of his assassination. Lord Ellenborough, the chief justice, said, "Whenever the tolerating of any species of contract has a tendency to produce a public mischief or inconvenience, such a contract has been held to be void." The court decided that this contract was illegal, as it would naturally create a desire to assassinate a public enemy, contrary to the law of nations. In the case of Eltham vs. Kingsman, 1 Barn. & Ald., 683, (1818), the rule was carried to an extreme, although the court disposed of the issue on another point. One proprietor of livery carriages at Cheltenham bet watches with another proprietor that a certain Col. Longford would go to the assembly in his "fly by night" (a vehicle) and no other. The court held that the wager was void, because it would tend to subject Longford to great inconvenience by exposing him to the importunities of the proprietors of these vehicles, one of the judges remarking that "any person who has walked through Piccadilly must be sensible that this is no small inconvenience." Finally, those wagers were held bad, 1, which tended to create an improper bias in the mind of a person with relation to some public duty (as in the election case above mentioned), or, 2, which had a tendency to injure third persons or the public. Such wagers were regarded as "against public policy."


—Meanwhile the doctrine of public policy spread through all branches of the law. The courts, after introducing the principle into the law of wagers, soon found that it was applicable to many other subjects of litigation. It has now been definitely settled that any contract or will may be declared void as against public policy, if it be calculated to injure either, 1, the government in its foreign relations, or 2, the government in its domestic relations and the administration of justice, or 3, the public generally by restraining the freedom of individuals. Under the first head, viz., of contracts, etc., injurious to the government in its foreign relations, are included those which benefit an enemy or affront a friendly state. Consequently it is held that "as the presumed object of war is as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country, and that such intercourse is illegal," (Esposito vs. Bowden, 7 Ellis & Blackb., 763, 779); and a contract between citizens of two countries is annulled by a subsequent war, as it is against public policy to enforce it. "On the principles of the English law, it is not competent to any subject to enter into a contract to do anything which may be detrimental to the interests of his own country." (Furtado vs. Rogers, 3 B. & P., 191, 198.) The second division, viz., of contracts, etc., injurious to the government in its domestic relations and the administration of justice, embraces all agreements contemplating the bribery of public officers, executive, legislative or judicial, or of any person having some public duty to perform, such as voting. The leading English case on the doctrine of public policy is Egerton vs. Earl Brounlow, 4 House of Lords Cases, 1, and it has reference to corrupt influence of this kind. The earl of Bridgewater died leaving a will, in which he left a very large estate to a certain legatee on condition that he should obtain the title of duke or marquis of Bridgewater. The house of lords held the condition invalid, as it held out a temptation to the legatee to indulge in bribery in endeavoring to obtain the title. In short, contracts creating an interest at variance with a duty are void. The sale of offices is also against public policy. So is the assignment of salary, not yet due, by a public officer. It is for the interest of the public that he should be able to support himself while he is in office. and he can not place his future salary out of his power. Again, it is illegal to compound a felony or misdemeanor, viz., to refrain from its prosecution for any consideration. This is against public policy, because it frustrates justice; and, for the same reason, maintenance and champerty, i.e., the impertinent encouragement and assistance of litigation by persons who are not interested, vitiates contracts. Agreements not to bid at judicial sales are void, and, indeed, all auction sales are carefully scrutinized to prevent frauds upon the public. Under the third class, viz., of contracts, etc., which are injurious to the public generally, as restraining the freedom of individuals, the most important are contracts made in restraint of trade. A man can not bind himself not to carry on his business. The people at large are interested that he should earn a living for himself and his family, and not become a pauper, and that there should be the freest competition in all trades and professions. The enforcement of contracts, taking away the right of men to pursue their callings, would discourage industry, diminish products, prevent competition, enhance prices, and introduce monopoly. A man may bind himself not to trade within certain limits; e.g., a retiring partner may agree with his copartners not to compete with his firm in a certain town, the seller of a business with the buyer, or a servant with a master who undertakes to teach him the secrets of his art; but these are manifestly wise exceptions, based on peculiar grounds. A father can not abdicate his parental rights. It is the interest of the public that paternal authority should be upheld. An agreement not to marry can not be enforced; nor can an agreement not to marry any one except a certain person: nor a "marriage-brocage contract"; viz., a promise to pay a person a sum of money if he can induce a certain person to marry the promisor. All these contracts interfere with freedom of choice in marriage, and imperil the happiness of that domestic system in which the people has everything at stake. An agreement to use influence with a testator is also against public policy.


—But it is needless to multiply instances. The main point to be remembered is, that the court always protects the interests of the people. Enough examples have been cited to show the nature of that protection in England and America. Our judges are always ready to annul engagements which are "against public policy," but it is probable that the principle will never be extended much further, for, as has been ably said, it is paramount public policy to allow freedom in making contracts, and to enforce them as made. (19 Equity, 462.)


—See Pollock on Contracts, 251 et seq.; 1 Story's Equity Jurisprudence, § 259, note 1; Hubbard, J., in Sedgwick vs. Stanton, 14 New York Reports, 289, 291.


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