volved in this conflict is in truth of an economic rather than a legal kind: namely whether it is or is not desirable that private persons should have the power of dedicating land to be used in a particular way for an indefinite time. Such questions of public economy cannot be adequately dealt with by means of the rules of ordinary private law concerning ownership and contract, and we need not be surprised if the purely legal discussion of them fails to give satisfactory results (a). (a) It is worth while to note that even if Equity had not refused to follow the law on this subject, the sort of restrictions in question might still be effectually created with little more trouble than at present. For instance when it was desired to impose such restrictions on a sale of land in lots, long leases at nominal rents might be substituted for conveyances in fee simple. The restrictive covenants would then run with the reversion at law by the Stat. of Hen. 8, and provision might be made for lessees enforcing them against one another in the name of the reversioner. On the other hand it is conceived that in the actual state of the law courts of equity have by no means abandoned a discretion, which perhaps may yet be exercised with advantage, of refusing to enforce restrictive covenants when by lapse of time or change of circumstances they have become obsolete, vexatious, or useless. Cp. Duke of Bedford v. Trustees of British Museum, 2 M. & K. 552. у 218 Meaning of unlawful agreements. perform ance a CHAPTER VI. UNLAWFUL AGREEMENTS. ALL agreements which the law refuses to enforce may perhaps in some sense be called unlawful. All transactions which injuriously affect either the public good or the interests of private persons who have no voice in the matter, or are not fully and freely consenting parties, may perhaps in some sense be called fraudulent. Hence the terms fraud and illegality have acquired in common use such a latitude of meaning as to make convenient arrangement and accurate discussion almost impossible. Sometimes fraud is treated as a species of illegality; sometimes, on the other hand, we find illegality treated wholly or in great part as a species of fraud. But we shall here speak of unlawful agreements only in a more limited sense, which is now to be explained. We have already seen that an agreement is not in any case enforceable by law without satisfying sundry conditions: as, being made between capable parties, being sufficiently certain, and the like. If it does satisfy these conditions, it is in general a contract which the law commands the parties to perform. Subject- But there are many things which the law positively commands is for bidden (illegal). 1 part of the same transaction, the law cannot command the parties to perform that agreement. It will not always command them not to perform it, for there are many cases where the performance of the agreement is not in itself an offence, though the complete execution of the objects of the agreement is: but at all events it will give no kind of assistance to such a transaction. Agreements of this kind are void as being illegal in the strict sense. Again there are certain things which the law (a) does not Not positively forforbid in the sense of attaching penalties to them, but which are bidden but violations of established rules of decency, morals, or good immoral. manners, and of whose mischievous nature in this respect the law so far takes notice that it will not recognize them as the ground of any legal rights. "A thing may be unlawful in the sense that the law will not aid it, and yet that the law will not immediately punish it" (b). Agreements whose subject-matter falls within this description are void as being immoral. Further there are a good many transactions which cannot fairly Not posibe brought within either of the foregoing classes and yet cannot bidden, tively forconveniently be admitted as the subject-matter of valid contracts, but against public or can be so admitted only under unusual restrictions. It is policy. doubtful whether these can be completely reduced to any general description, and how far judicial discretion may go in novel cases. They seem in the main, however, to fall into the following categories: Matters governed by reasons outside the regular scope of municipal law, and touching the relations of the commonwealth to foreign states: Matters touching the good government of the commonwealth and the administration of justice: Matters affecting particular legal duties of individuals whose performance is of public importance : Things lawful in themselves, but such that individual citizens could not without general inconvenience be allowed to set bounds to their freedom of action with regard to those things in the (a) i.e. the common law. But qu. whether the common law could take notice of anything as immoral which would not constitute an offence against either common (b) Bramwell, B. Cowan v. Mil- Caution as to use of terms. Summary. same manner or to the same extent as they may with regard to other things. (We have already seen that the specific operation of contract is none other than to set bounds to the party's freedom of action as regards the subject-matter of the contract.) Agreements falling within this third description are void as being against Public Policy. We speak for shortness of the agreement itself as contrary to positive law, to positive morality, or to public policy, as the case may be. But we must bear in mind that this is not exact, for the nullity of the agreement itself is in every case a matter of positive law. The distinction is in the reasons which determine the law to hold the agreement void, not in the nature or operation of the law itself. We have then in the main three sorts of agreements which The ar- are unlawful and void, according as the matter or purpose of rangement only approximate. them is A. Contrary to positive law. (Illegal.) B. Contrary to positive morality recognized as such by law. (Immoral.) C. Contrary to the common weal as tending (a) To the prejudice of the State in external relations. (b) To the prejudice of the State in internal relations. (c) To improper or excessive interference with the lawful actions of individual citizens. (Against public policy.) These principles, be it observed, are not confined within the bounds of our present subject. Their application, so far as it goes, in the region of criminal law-whether wholly felicitous or not, it is not for us here to say-is nothing else than the common law doctrine of conspiracy. The arrangement here given is believed to be on the whole the most convenient, and to represent distinctions which are in fact recognized in the decisions which constitute the law on the subject. But like all classifications it is of course only approximate and here more especially, where there is perhaps a wider field for judicial discretion than in any other part of the law, one must expect to find many cases which may nearly or quite as well be assigned to one place as to another. The authorities and dicta are too numerous to admit of any detailed review. Nor indeed would this be very desirable if it were possible. We have not to deal with such a state of things as in a foregoing chapter made it necessary to examine with some minuteness the leading decisions on the extent of corporate powers. Here the general rules are (with some few exceptions on certain topics) sufficiently well settled, so far as the nature of the case admits of general rules existing. Any given decision, on the other hand, is likely to be rather suggestive than conclusive when applied to a new set of facts. Some positive rules for the construction of statutes have been worked out by a regular series of decisions. But with this exception we find that the case-law on most of the branches of the subject presents itself as a clustered group of analogies rather than a linear chain of authority. We have then to select from these groups a certain number of the more striking and as it were central instances. The statement of the general rules which apply to all classes of unlawful agreements indifferently will be reserved, so far as practicable, until we have gone through the several classes in the order above given. A. Agreements contrary to positive law. 1. The simplest case is an agreement to commit a crime or indictable offence: Classes of ments. "If one bind himself to kill a man, burn a house, maintain a A. Consuit, or the like, it is void "(a). trary to po sitive law. Agree ment to commit of With one or two exceptions on which it is needless to dwell, 1. obviously criminal agreements do not occur in our own time and in civilized countries, and at all events no attempt is made fence, void. to enforce them. It is said that in the last century a bill was filed in Chancery by a highwayman against his fellow for a partnership account, but the story is at least doubtful (). The Sometimes question may arise, however, whether a particular thing agreed doubtful if to be done is or is not an offence, or whether a particular agree-ance of ment is or is not on the true construction of it an agreement to agreement commit an offence. In the singular case of Mayor of Norwich offence. v. Norfolk Ry. Co. (e), the defendant company, being authorized Mayor of to make a bridge over a navigable river at one particular place, Norfolk (a) Shepp. Touchst. 370. (b) See Lindley, 1. 188. (c) 4 E. & B. 397, 24 L. J. Q. B. 105. perform would be Norwich v. Ry. Co. |