Opinions of judges.

uses upon the preceding estates (d). The effect of these was that if the possessor for the time being of the estates did not acquire the title of Marquis or Duke of Bridgewater, or did accept any inferior title, the estates were to go over. The House of Lords held by four to one, in accordance with the opinion of two judges (c) against eight (ƒ), that the limitations were void as being against public policy.

The whole subject was much discussed in the opinions on both sides. The greater part of the judges insisted on such considerations as the danger of limiting dispositions of property on speculative notions of impolicy (g); the vague and unsatisfactory character of a jurisdiction founded on general opinions of political expedience, as distinguished from a legitimate use of the policy, or rather general intention, of a particular law as the key to its construction, and the confusion of judicial and legislative functions to which the exercise of such a jurisdiction would lead (h); and the fallacy of supposing an object unlawful because it might possibly be sought by unlawful means, when no intention to use such means appeared (i). On the other hand it was pointed out that these limitations held out "a direct and powerful temptation to the exercise of corrupt means of obtaining the particular dignity" (k); that besides this the restraint on accepting any other dignity, even if it did not amount to forbidding a subject to obey the lawful commands of the Sovereign (1), tended in possible events to set private interest in opposition to public

(d) See Lord St. Leonards' judg.
ment, 4 H. L. C. at p. 208.

(e) Pollock, C. B. and Platt, B.
(f) Crompton, Williams, Cress-
well, Talfourd, Wightman, and
Erle, JJ., Alderson and Parke,
BB. Coleridge, J. thought the
limitations good in part only.

(g) Crompton, J. at p. 68.

(h) Alderson, B. at p. 106; Parke, B. at p. 123.

(i) Williams, J. at p. 77; Parke, B. at p. 124.

(k) Platt, B. at p. 99; Lord St. Leonards at p. 232; Lord Brougham at p. 172.

On this point the prevailing opinion, on the whole, was that a subject cannot refuse a peerage [cp. 5 Ric. 2. St. 2. c. 4], but cannot be compelled to accept it by any particular title, or at all events cannot be compelled to accept promotion by any particular new title if he is a peer already.

Lord Opinions
Lord of Lords.

duty (m); and that the provisoes as a whole were fitted to
bias the political and public conduct of the persons
interested, and introduce improper motives into it (n), and
also to embarrass the advisers of the Crown, and influence
them to recommend the grant of a peerage or of promotion
in the peerage for reasons other than merit (o).
Lyndhurst, Lord Brougham, Lord Truro, and
St. Leonards adopted this view. Lord Cranworth dis-
sented, adhering to his opinion in the Court below (p),
and made the remark (which is certainly difficult to
answer) that the Thellusson will, which the Courts had
felt bound to uphold, was much more clearly against
public policy than this. The fullest reasons on the side of
the actual decision are those of Pollock, C. B. and Lord
St. Leonards. Their language is very general, and they
go far in the direction of claiming an almost unlimited
right of deciding cases according to the judge's view of
public policy for the time being. Lord St. Leonards
mentioned the fluctuations of the decisions on agreements
in restraint of trade as showing that rules of common law
have been both created and modified by notions of public
policy. But, assuming the statement to be historically
correct (q), the inference would seem, with all submission.
to so great an authority, to be grounded on a confusion
between the purely legal and the historical point of view.
In theory the common law does not vary. In fact we
know that it does vary (though in modern times the limits
of variation are narrowed), but the fact of the variation is
no argument for an unlimited power of judicial legislation
in this more than in any other class of questions. He also
said that each case was to be decided upon principle, but

(m) Pollock, C. B. at p. 151. (n) Lord Lyndhurst, at p. 163. (0) Pollock, C. B. and Lord St. Leonards, supra.

(p) 1 Sim. N. S. 464.

(4) In fact it seems doubtful. The cases on wagers are anomalous, as above shown: and as to restraint

of trade it appears from the book
that Hull, J. was really alone in
his opinion in the Dyer's ca. in 2
H. 5. See, however, as to the
variation of the "policy of the
law" in general, Evanturel v. Evan-
turel, L. R. 6 P. C. at p. 29.

in House

Effect of

the deci

create a

new head of "public policy."

abstract rules were not to be laid down (). Perhaps this may be taken to mean only that (as in the case of fraud) the Court is to be guided by recognized principles, but it is useless to attempt a minute and exhaustive definition of the cases that may fall within them in other words, that we must be content with reasoning by way of analogy rather than deduction. If so, the proposition is doubtless correct and important (though by no means confined to this topic); but if it means to say that the Court may lay down new principles of public policy without any warrant even of analogy, it seems of doubtful and dangerous latitude. But it is necessary to consider whether the ratio sion itself: decidendi of the case does in truth require any of these it does not wide assertions of judicial discretion. And it is not very difficult to perceive that it does not. The limitations in question were held bad because they amounted in effect to a gift of pecuniary means to be used in obtaining a peerage, and offered a direct temptation to the improper use of such means, and the improper admission of private motives of interest in political conduct: in short, because in the opinion of the Court they had a manifest tendency to the prejudice of good government and the administration of public affairs. But it is perfectly well recognized that transactions which have this character are all alike void, however different in other respects. Such are champerty and maintenance, the compounding of offences, and the sale of offices. The question in the particular case was whether there was an apparent tendency to mischiefs of this kind, or only a remote possibility of inconvenient consequences. The decision did not create a new kind of prohibition, but affirmed the substantial likeness of a very peculiar and unexampled disposition of property to other dispositions and transactions already known to belong to a forbidden class. And the broadly expressed language of certain parts of the judgments may be taken, it is

() At pp. 238-9.

submitted, as applicable only within the bounds of that particular class.

Egerton v. Earl Brownlow, however, is certainly a cardinal authority for one rule which applies in all cases of "public policy:" namely that the tendency of the transaction at the time, not its actual result, must be looked to. It was urged in vain that the will of the seventh Earl of Bridgewater had in fact been in existence for thirty years without producing any visible ill effects (s).

The view here put forward, that there is really nothing in the case to warrant the invention of new heads of "public policy," seems to be borne out by the following remarks of the late Sir G. Jessel:

"It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires, it 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 enforced by courts of justice. Therefore, you have this paramount public policy to consider that you are not lightly to interfere with this freedom of contract" (t).

We now proceed to the several heads of the subject.

A. First, as to matters concerning the commonwealth in A. Public its relations with foreign powers.

policy as touching external relations of

"On the principles of the English law it is not com- the State. petent to any " domiciled British (u) "subject to enter into a contract to do anything which may be detrimental to the interests of his own country" (x).

(s) Cp. Da Costa v. Jones, Cowp. 729. Wager on sex of third person void, as offensive to that person and tending to indecent evidence: notwithstanding it did not appear that the person had made any objection, and the cause had in fact been tried without any indecent evidence.

(t) Printing and Numerical Regis tering Co. v. Sampson, 19 Eq. 462, 465.

(u) The rule does not apply to British subjects domiciled abroad: Bell v. Reid, 1 M. & S. 726.

(x) 7 E. & B. 782.

Trading with

enemy.

Potts v.
Bell.

Effect of

war on

An agreement may be void for reasons of this kind. either when it is for the benefit of an enemy, or when the enforcement of it would be an affront to a friendly state.

As to the first and more important branch of this rule: "It is now fully established that, the presumed object of -war being 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, except with the licence of the Crown, is illegal" (y).

The case of Potts v. Bell (≈), decided by the Exchequer Chamber in 1800, is the leading authority on this subject. The following points were there decided:

It is a principle of the common law (a) that trading with an enemy without licence from the Crown is illegal.

Purchase of goods in an enemy's country during the war is trading with the enemy, though it be not shown that they were actually purchased from an enemy and an insurance of goods so purchased is void.

As to insurances originally effected in time of peace: "When a British subject insures against captures, the law infers that the contract contains an exception of captures made by the government of his own country" (b).

The effect of the outbreak of war upon subsisting contracts between subjects of the hostile states varies subsisting contracts. according to the nature of the case. It may be that the contract can be lawfully performed by reason of the belligerent governments or one of them having waived their strict rights: and in such case it remains valid. In Clementson v. Blessig (c) goods had been ordered of the plaintiff in England by a firm at Odessa before the de

(y) Esposito v. Bowden (in Ex.Ch.), 7 E. & B. 763, 779.

() 8 T. R. 548.

(a) In the Admiralty it was already beyond question: see the series of precedents cited in Potts v.

Bell.

(b) Furtado v. Rodgers, 3 B. & P. 191, 200; Ex parte Lee, 13 Ves. 64. (c) 11 Ex. 135, and on the subject generally see the reporters' note, pp. 141-5.