§ 14. The Rule in New York. Contracts in Contravention of Law. 32. For Influencing the Administration of Justice. 33. For Changing the Offices of Corporations. 34. For Renouncing an Executorship. 35. For Assignment of Salary not yet Due. Introductory.—Public policy, as a rule, for the guidance of courts of equity, is of an ancient origin. Its validity and its claim to consideration were recognized at an early day. To go back no farther, it was made the basis of a decision in the leading case of Mitchell v. Reynolds,1 in 1711, by the the High Court of Chancery of England. The doctrine enunciated in this case has been modified in a degree to adapt it to the changed industrial conditions of later times, but the basal principle is as fully 1 Mitchell v. Reynolds, 1 P. Wms. 181. recognized at the present as at any time in the past. With regard to the application of this rule there is not entire harmony between the courts of England and of the United States. But while the courts of the two countries are not in full accord in regard to the extent to which the rule should be applied, and while the courts of the different States are not wholly agreed in their decisions, there is entire unanimity in the recognition of the principles involved. On all sides it is accepted that public policy has a standing in a court of equity, and that whatever is clearly in contravention of its claim is illegal and void. Undoubtedly the application of this rule is attended with grave difficulties, and it should be administered only with great deliberation, and in the exercise of a thoroughly judicial temper. The indefiniteness and uncertainty of the idea on which the rule is based, and which is the ground of the difficulty of its application, renders it especially liable to abuse. A standard text writer uses the following language on this point: "Of late years the principle has been invoked with increasing frequency, and sometimes, at least, seems to be made use of as authority for deciding in whatever way the courts think would, on the whole, be most useful." This 1 Parsons on Contracts, 249. In the case of Egerton v. Brownlow, in 4 H. L. Cas.. at page 237, Lord St. Leonards said: "My Lords, there are just a few remarks that I wish to make upon public policy. I will not add a word to what bas been already said by my noble and learned friends, but I will call your attention to what fell from one of the learned judges (Mr. Justice Cresswell), as regards the restraint of trade. That learned judge says that with regard to the restraint of trade, there is a maxim in common law, and he refers to a case in the Year Books to prove it; but the learned judge did not tell your Lordships upon what that maxim was founded. Nobody supposes that there was any statute upon the subject in those times. Upon what, then. was the maxim founded? Why. upon public policy for the good of the realm. It was not good for the realm that men should be prevented from exercising their trades. Now, let us see what this particular case is; it lies in a few words, and remarkable consequences have resulted from it. It was an obligation with a condition that if a man did not exercise his craft of a dyer within a certain town, that is, where he carried on his business for six months,-then the obligation was to be void; and it was averred that he had used his art there within the time limited; upon which Mr. may appear an extreme statement, but it is a pertinent suggestion of the liability to the misapplication of the doctrine. This danger has long been recognized by the courts. In a leading English case, Chief Justice Hull, being uncommonly angry at such a violation of all law, said. according to the book, 'per dieu, if he were here, to prison he should go until he made fine to the king, because he had dared to restrain the liberty of the subject.' I wish to draw your Lordships' attention to this case. Angry as the learned judge was at that infraction of the law, what has been the result of that very rule without any statute intervening? That the common law, as it is called, has adapted itself, upon grounds of public policy, to a totally different and limited rule that would guide us at this day, and the condition which was then so strongly denounced, is just as good a condition now as any that was ever inserted in a contract, because a partial restraint created in that way with a particular object is now perfectly legal. Without any exclamation of the judge, and without any danger of prison, any subject of this realm may sue upon such a condition as Mr. Justice Hull was so very indignant at in that particular case. That shows, therefore, that the rule which the learned judge, whose opinion is now before the House, thought depended upon some rule of common law, regardless of policy, was founded upon public policy, and has been restrained and limited and qualified up to this very hour, and beneficially so, by that very policy which it is supposed had no bearing at all upon the foundation of the rule." In the same case, at page 195, Lord Brougham says: "In considering the question of the legality of the proviso, and the inexpediency of unnecessary restrictions upon the free disposition of property by will or by any other means known to the law, it cannot be denied that such dispositions are subject to some limits and restraints, and that the law will not uphold such as have a tendency prejudicial to the public weal; every man is restricted against using his property to the prejudice of others. It must be superfluous in this House to cite authorities to prove the existence of such a general law. It has been acted upon in * * * * a great variety of cases, such as those of marriage brokage 'bonds, restrictions upon trade, disability of sailors to insure their wages, and sale of offices not within any statute. A case of this last sort was Hanington v. Duchatel, 1 Bro. Ch. 124. That was а case of security given as a consideration for having procured an office in the king's household, and Lord Thurlow expressed himself to the effect that it was a matter of public policy similar to marriage brokage bonds, where, though the parties are private, the practice is publicly detrimental.' The same principle has been applied in cases of wagers respecting the public revenue, and numerous other instances. This principle has been expressed in different language, but in all cases to the same import as applying to matters contrary to law because against the public good." In Justice Sir William Draper Bell, in delivering the opinion of the court, said: "I am not much disposed to yield to arguments of public policy; I think the courts have gone much further than they were warranted in going Walsh v. Fussell, 6 Bing. 163, 169, Tindal, C. J., observes: It is not contended that the covenant is illegal on the ground of the breach of any direct rule of law, or the direct violation of any statute; and we think to hold it to be void on the ground of its impolicy or inconvenience, we ought to be clearly satisfied that the performance of it would be necessarily attended with injury or inconvenience to the public. But such is not the case." In Printing Company v. Sampson, Jessel, M. R., says: "Now, it is said on the part of the defendant, that such a contract as that which I have mentioned, a contract by which an inventor agrees to sell what he may invent or acquire a patent for before he has invented it, is against public policy, and it was said to be against public policy, because it would discourage inventions; that if a man knows that he cannot obtain any pecuniary benefit from his invention, having already received the price for it, he will not invent, or if he does invent will keep it secret, and will not take out a patent. It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as against public policy, because if there is one thing which more than another public policy requires, is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be en forced by courts of justice. Therefore, you have this paramount public policy to consider, that you are not likely to interfere with this freedom of contract. Now, there is no doubt public policy may say that a contract to commit a crime is necessarily void. The decisions have gone further, and contracts to commit an immoral offense, or to give money or reward to another to commit an immoral offense, or to induce another to do something against the general rules of morality, though far more indefinite than the previous class, have always been held to be void. I should be sorry to extend the doctrine much further. I do not say there are no other cases to which it does apply, but I should be sorry to extend it much further. However, I am satisfied there is no reason for so extending it in this case. In the first place it is assumed that a man will not invent without pecuniary reward. Experience shows us that that must not be taken as an absolute truth. Some of the greatest inventions which have been of the most benefit to mankind have been invented by those who have given their inventions freely to the world. Again, it is supposed that a man who has obtained money for the future products of his brain will not be ready to produce these products. That must not be assumed. A man who is a needy and struggling inventor may well agree either for a present payment in money down, or for an annual payment, to put his intel * in questions of policy; they have taken on themselves, sometimes, to decide doubtful questions of policy, and they are always in danger of so doing, because courts of law look only at the particular case and have not means of bringing before them all those considerations which ought to enter into the judgment of those who decide on questions of policy." In the same case Mr. Justice Burrough said: "I for one, protest, as my Lord has done, against arguing too strongly upon public policy; it is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from sound law. It is never argued at all but when other points fail." The position taken in these opinions is not altogether out of harmony with that of the English courts of the present, but would not be accepted in this country. A better view of public policy as a rule for the guidance of courts of equity is presented by the words of Chief Justice Wilmot: "It is the duty of all courts of justice to keep their eye steadily upon the interest of the public, even in the administration of commutative justice, and when they find an action is founded upon a claim injurious to the public and which has a bad tendency, to give it no countenance or assistance in foro civili.' Upon this principle, turning prosecutions for felony into civil actions for the things stolen, bonds and agreements not to prosecute felonies, and many other cases might be cited which are all governed by that supereninent and noble principle, the care and protection of the whole community." While this statement must commend itself to the conscientious and unbiased jurist, it is to be adnitted, not only that courts of the highest character have lecual gifts at the service of a purchaer. I see, therefore, not only no nle of public policy against it, but rule of public policy for it, because it may enable such a man in comparative ease and affluence to devote his attention to scientific researh, whereas if such a contract vere prohibited he would be compeled to apply himself to some menial or mechanical or lower calling in order to gain a livelihood." 1 Richardson v. Mellish, 2 Bligh, 229, 242. 2 Richardson v. Mellish, 2 Bligh 229, 242. 3 Low v. Peers, Wilmot's Op. (1770) 364, 378. |