the distinction. The distinction rests on the following ground:-An Reason of agreement for an immediate separation is made to meet a state of things which, however undesirable in itself, has in fact become inevitable. Still that state of things is abnormal and not to be contemplated beforehand. "It is forbidden to provide for the possible dissolution of the marriage contract, which the policy of the law is to preserve intact and inviolate" (g). Or in other words, to allow validity to provisions for a future separation would be to allow the parties in effect to make the contract of marriage determinable on conditions fixed beforehand by themselves (). tions: criminal contrary law. It is a well-established rule that no enforceable right Immoral can be acquired by a blasphemous, seditious, or indecent publicapublication, whether in words or in writing, or by any Being contract in relation thereto (i); but it does not really be- offences, long to the present head. The ground on which the cases these are proceed is that the publication is or would be a criminal to positive offence; not merely immoral, but illegal in the strict sense. The criminal law prohibits it as malum in se, and the civil law takes it from the criminal law as maium prohibitum, and refuses to recognize it as the origin of any right (k). Then the decisions in equity profess simply to follow the law by refusing in a doubtful case to give the aid of equitable remedies to alleged legal rights until the existence of the legal right is ascertained (7). It would perhaps be difficult to assert as an abstract proposition that a Court administering civil justice might not conceivably (g) 3 K. & J. 382. (h) Agreements between husband and wife contemplating a future judicial separation (séparation de corps) are void in French law: Sirey & Gilbert on Code Civ. art. 1133, no. 55. (2) The somewhat analogous question-Will the law protect the trade mark of an article intended to deceive the public?-is left open by Estcourt v. Escourt Hop Essence Co. (k) E.g. Stockdale v. Onwhyn, 5 (1) Southey v. Sherwood, 2 Mer. 435; Laurence v. Smith, Jac. 471. For a full account of the cases see Shortt on the Law relating to Works of Literature and Art, pp. 3-11, 2d ed. 1884. Contracts as to slaves in U.S. void in some pronounce a writing or discourse immoral which yet could not be the subject of criminal proceedings. But we do not know of such a jurisdiction having ever in fact been exercised; and considering the very wide scope of the criminal law in this behalf (m), it seems unlikely that there should arise any occasion for it. Some expressions are to be found which look like claims on the part of purely civil Courts to exercise a general moral censorship apart from any reference to the criminal law. But these are overruled by modern authority. At the present day it is not true that "the Court of Chancery has a superintendency over all books, and might in a summary way restrain the printing or publishing any that contained reflections on religion or morality," as was once laid down by Lord Macclesfield; or that "the Lord Chancellor would grant an injunction against the exhibition of a libellous picture," as was laid down by Lord Ellenborough (n). On the whole one may safely say that for all practical purposes the civil law is determined by and co-extensive with the criminal law in these matters: the question in a given case is not simply whether the publication be immoral, but whether the criminal law would punish it as immoral. A very curious doctrine of legal morality has been started in some of the United States since the abolition of now held slavery. It has been held that the sale of slaves being against natural right can be made valid only by positive law, and that no right of action arising from it can subsist after the determination of that law (o). The Supreme Court of Louisiana in particular has adjudged that contracts for the sale of persons, though made in the State States though lawful when made. (m) See Russell on Crimes, Bk. 2, c. 24, Starkie on Libel (3rd ed.) cc. 33, 34, Shortt, op. cit. Part IV., or Mr. Blake Odgers's Digest; and Stephen's Digest of the Criminal Law, artt. 91-95, 161, 172. (n) Emperor of Austria v. Day & Kossuth, 3 D. F. J. 217, 238. As to blasphemous or quasi-blasphemous publications, however, something like the older view seems to be involved in Cowan v. Milbourn, L. R. 2 Ex. 230. (0) Story on Contracts § 671 (1. 647, 5th ed.) while slavery was lawful, must now be treated as void: but the Supreme Court of the U. S. did not hold itself bound by this view on appeal from the Circuit Court, and distinctly refused to adopt it, thinking that neither the Constitutional Amendment of 1865, nor anything that had happened since, avoided a contract good in its inception (p). C. Agreements contrary to public policy. Before we go through the different classes of agreements of the which are void as being of mischievous tendency in some doctrine of public one of certain definite ways, something must be said on policy in the more general question of the judicial meaning of general. "public policy." That question is, in effect, whether it is at the present day open to Courts of justice to hold transactions or dispositions of property void simply because in the judgment of the Court it is against the public good that they should be enforced, although the grounds of that judgment may be novel. The general tendency of modern ideas is no doubt against the continuance of such a jurisdiction. On the other hand there is a good deal of modern and even recent authority which makes it difficult to deny its continued existence. Its exten sion by anxiety of Courts to discourage wagers, while wagers as As a matter of history, there seems to be little doubt that the doctrine of public policy, so far as regards its assertion in a general form in modern times, if not its actual origin, arose from wagers being allowed as the foundation of actions at common law. Their validity was assumed without discussion until the judges repented of such were it too late. Regretting that wagers could be sued on at contracts. all (q), they were forced to admit that wagering contracts as such were not invalid, but set to work to discourage them so far as they could. (p) Boyce v. Tabb, 18 Wallace, 546. (g) Good v. Elliott, 3 T. R. 693, where Buller, J. proposed (without This they did by becoming success) to hold void all wagers on valid "astute even to an extent bordering upon the ridiculous to find reasons for refusing to enforce them" in particular cases (r). Thus a wager on the future amount of hop duty was held void, because it might expose to all the world the amount of the public revenue, and Parliament was the only proper place for the discussion of such matters (8). Where one proprietor of carriages for hire in a town had made a bet with another that a particular person would go to the assembly rooms in his carriage, and not the other's, it was thought that the bet was void, as tending to abridge the freedom of one of the public in choosing his own conveyance, and to expose him to "the inconvenience of being importuned by rival coachmen" (t). A wager on the duration of the life of Napoleon was void, because it gave the plaintiff an interest in keeping the king's enemy alive, and also because it gave the defendant an interest in compassing his death by means other than lawful warfare (u). This was probably the extreme case, and has been remarked on as of doubtful authority (x). But the decisions. Judicial Committee held in 1848, on an Indian appeal (the Act 8 & 9 Vict. c. 109, not extending to British India) that a wager on the price of opium at the next Government sale of opium was not illegal (y). The common law was thus stated by Lord Campbell in delivering the judgment: Later remarks on these Qu. How far now law. "I regret to say that we are bound to consider the common law of England to be that an action may be maintained on a wager, although the parties had no previous interest in the question on which it is laid, if it be not against the interests or feelings of third persons, and does not (r) Per Parke, B. Egerton v. Earl Brownlow, 4 H. L. C. at p. 124; per Williams, J. ib. 77; per Alderson, B. ib. 109. (8) Atherfold v. Beard, 2 T. R. 610. (t) Eltham v. Kingsman, 1 B. & Ald. 683: this, however, was not strictly necessary to the decision. (u) Gilbert v. Sykes, 16 East, 150. (x) By Alderson, B. in Egerton v. Earl Brownlow, supra, and in the Privy Council in the case next cited, 6 Moo. P. C. 312. (y) By the Indian Contract Act, s. 30, agreements by way of wager are now void, with an exception in favour of prices for horse-racing of the value of Rs. 500 or upwards. lead to indecent evidence, and is not contrary to public policy. I look with concern and almost with shame on the subterfuges and contrivances and evasions to which Judges in England long resorted in struggling against this rule" (-). It may surely be thought at least doubtful whether decisions so produced and so reflected upon can in our own time be entitled to any regard at all. But it has been said that they establish a distinction of importance between. cases where the parties "have a real interest in the matter, and an apparent right to deal with it" and where they "have no interest but what they themselves create by the contract;" that in the former case the agreement is void only if " directly opposed to public welfare," but in the latter "any tendency whatever to public mischief" will render it void (a). It is difficult to accept this distinction, or at any rate to see to what class of contracts other than wagers it applies. In the case of a lease for lives (to take an instance often used) the parties "have no interest but what they themselves create by the contract" in the lives named in the lease: they have not any "apparent right to deal with" the length of the Sovereign's or other illustrious persons' lives as a term of their contract: yet it has never been doubted that the contract is perfectly good. Brown low. The leading modern authority on "public policy" is the Egerton v. great case of Egerton v. Earl Brownlow (b). This, although not a case of contract, must not be left without special mention. By the will of the seventh Earl of Bridgewater a series of life interests (c) were limited, subject to provisoes which were generally called conditions, but were really conditional limitations by way of shifting (z) Ramloll Thackoorseydass V. Soojumnull Dhondmull, 6 Moo. P. C. 300, 310. (a) 4 H. L. C. 148. (b) 4 H. L. C. 1-250. (c) Not estates of freehold with P. remainder to first and other sons in T |