Agree ments as tion of children. unlawful and void as providing for or tending to the omission of duties which are indeed duties towards individuals, but such that their performance is of public importance. To this head must be referred the rule of law that a father to custody cannot by contract deprive himself of the right to the or educa- custody of his children (z) or of his discretion as to their education. He "cannot bind himself conclusively by contract to exercise in all events in a particular way rights which the law gives him for the benefit of his children and not for his own." And an agreement to that effect-such as an agreement made before marriage between a husband and wife of different religions that boys shall be educated in the religion of the father, and girls in the religion of the mother-cannot be enforced as a contract (a). In separa After the father's death the Court has a certain discretion. The children are indeed to be brought up in his religion, unless it is distinctly shown by special circumstances that it would be contrary to the infant's benefit (b). When such circumstances are in question, however, the Court may inquire "whether the father has so acted that he ought to be held to have waived or abandoned his right to have his children educated in his own religion"; and in determining this the existence of such an agreement as above mentioned is material (c). The father's conduct in giving up the maintenance, control, or education of his children to others may not only leave the Court free to make after his death such provision as seems in itself best; it may preclude him even from asserting his rights in his lifetime (d). Clauses in separation deeds or agreements for separation, tion deeds. purporting to bind the father to give up the general custody of his children or some of them, have for the like reasons been held void; and specific performance of an agreement to execute a separation deed containing such clauses has (z) Re Andrews, L. R. 8 Q. B. 153, (b) Hawksworth v. Hawksworth, Ch. 539. (e) Andrews v. Salt, 8 Ch. at p. 637. (d) Lyons v. Blenkin, Jac. 245, 255, 263, been refused (e). In one case, however, such a contract can be enforced; namely, where there has been such misconduct on the father's part that the Court would have interfered to take the custody of the children from him in the exercise of the appropriate jurisdiction and on grounds independent of contract. The general rule is only that the custody of children cannot be made a mere matter of bargain, not that the husband can in no circumstances bind himself not to set up his paternal rights (ƒ). The law on this point is now modified by the Act 36 36 Vict. c. Vict. c. 12, which enacts (s. 2) that "No agreement contained in any separation deed between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother: Provided always, that no Court shall enforce any such agreement if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto." This Act does not enable a father to delegate his general rights and powers as regards his infant children (g). 12, s. 2. part, the as to sepa The objections formerly entertained (as we have seen) On this first against separation deeds in general, and afterwards ground, in down to quite recent times against giving full effect to doctrines them in Courts of equity, were based in part upon the ration same sort of grounds: and so are the reasons for which deeds in general; agreements providing for a future separation have always been held invalid. For not the parties alone, but society at large is interested in the observance of the duties incident to the marriage contract, as a matter of public example and general welfare. Considerations of the same kind enter into the policy of and as to the law with respect to the sale of offices, also spoken of offices. (e) Vansittart v. Vansittart, 2 De G. & J. 249, 259. As to the validity of partial restrictions of the husband's right, Hamilton v. Hector, 6 Ch. 701, 13 Eq. 511. (f) Swift v. Swift, 4 D. F. J. 710, 714; and see the remarks in 6 Ch. 705, 13 Eq. 520. (g) Re Besant (C. A.), 11 Ch. D. 508, 518. sale of Insurance of seamen's wages. Agreements against social duty. D. Public policy as above. Such transactions clearly involve the abandonment or evasion of distinct legal duties. On similar grounds, again, seamen's wages, or any remuneration in lieu of such wages, cannot be the subject of insurance at common law (h). The reason of this is said to be "that if the title to wages did not depend upon the earning of freight by the performance of the voyage, seamen would want one great stimulus to exertion in times of difficulty and danger" (i). This reason, however, is removed in England by the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104, s. 183), which makes the right to wages independent of freight being earned. The question has not yet presented itself for decision whether the rule founded upon it is to be considered as removed also. It has never been decided, but it seems highly probable, that agreements are void which directly tend to discourage the performance of social and moral duties. Such would be a covenant by a landowner to let all his cultivable land lie waste, or a clause in a charter-party prohibiting deviation even to save life (k). D. As to agreements unduly limiting the freedom of to freedom individual action. of indi vidual action. There are certain points in which it is considered that the choice and free action of individuals should be as unfettered as possible. As a rule a man may bind himself to do or omit, or procure another to do or omit, anything which the law does not forbid to be done or left undone. The matters as to which this power is specially limited on grounds of general convenience are: riage. "Mar void. (a) Marriage is a thing in itself encouraged by the law; (a) Marthe marriage contract is moreover that which of all others should be the result of full and free consent. Certain riage brokage" agreements are therefore treated as against public policy agreeeither for tending to impede this freedom of consent and ments introduce unfit and extraneous motives into the contracting of particular marriages, or for tending to hinder marriage in general. The first class are the agreements to procure or negotiate marriages for reward, which are known as marriage brokage contracts. All such agreements are void (1), and services rendered without request in procuring or forwarding a marriage (at all events a clandestine or improper one) are not merely no consideration, but an illegal consideration, for a subsequent promise of reward, which promise, even if under seal, is therefore void (m). The law is said to be comparatively modern on this head: but it has already ceased to be of any practical importance (n). ment in restraint We pass on to the second class, agreements "in restraint Agreeof marriage" as they are called. as they are called. An agreement by a general bachelor or spinster not to marry at all is clearly void (0); of marso, it seems, would be a bare agreement not to marry riage void. within a particular time (p). In Lowe v. Peers (q) a covenant not to marry any person other than the covenantee was held void. A promise to marry nobody but A. B. cannot be construed as a promise to marry A. B. and is thus in mere restraint of marriage: and even if it could, it was thought doubtful whether an unilateral covenant to (1) E.g. Cole v. Gibson, 1 Ves. Sr. 503. See Story, Eq. Jur. §§ 260 sqq. (m) Williamson v. Gihon, 2 Sch. & L. 357. (n) In the Roman law these contracts were good apart from special legislation they were limited as to amount (though with an expression of general disapproval) by a constitution preserved only in a Greek epitome: C. 5. 1. de sponsalibus, &c. 6. The Austrian Code agrees (0) Lowe v. Peers, Wilmot, 371: (p) Hartley v. Rice, 10 East, 22 (a wager). (9) 4 Burr. 2225, in Ex. Ch. Wilm. 364. Covenant not to re marry A. B. would be valid, A. B. not being bound by any reciprocal promise ("). Lord Mansfield threw out the opinion (not without followers in our own time) (s), that even the ordinary contract by mutual promises of marriage is not free from mischievous consequences. The decision was affirmed in the Exchequer Chamber, where it was observed that : "Both ladies and gentlemen frequently are induced to promise not to marry any other persons but the objects of their present passion; and if the law should not rescind such engagements, they would become prisoners for life at the will of most inexorable jailors-disappointed lovers" (t). A covenant not to revoke a will is not void as being a voke will. covenant not to marry, though the party's subsequent marriage would revoke the will by operation of law. As a covenant not to revoke the will in any other way it is good; but the party's marriage gives no ground of action as for a breach (u). As to conditions in We do not know of any express decision, but it may be restraint of gathered from the analogy of the cases on conditions that marriage. a contract not to marry some particular person, or any per son of some particular class, would be good unless the real intention appeared to be to restrain marriage altogether; and that a contract by a widow or widower not to marry at all would probably be good (x). The learning of conditions in restraint of marriage (which always or almost always occur in wills) does not properly fall within our subject. Nevertheless it may be worth while to give a summary statement of what is believed to be the result of the authorities. (r) But of this qu.: for a refusal by A. B. to marry on request within a reasonable time would surely discharge the promisor on general principles. (s) 4 Burr. 2230; per Martin, B. Hall v. Wright, E. B. & E. at p. 788, 29 L. J. Q. B. at p. 49. (u) Robinson v. Ommanney, 21 Ch. D. 780, in C. A. 23 Ch. D. 285. (x) See Scott v. Tyler, in 2 Wh. & T. L. C. and notes. |