PUBLIC POLICY. That principle of the law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good. The earliest trace of this principle in English law reports is found in a case decided in the second year of the reign of Henry V. (1414). A dyer had con tracted not to use his art within a certain town for six months. He did exercise his art there within the time limit, and was sued for breach of his contract. When the case came before the court, Mr. Justice Hull is reported to have been uncommonly angry at the plaintiff, and to have declared with an oath that had the plaintiff been present he should have gone to prison for daring to restrain the liberty of the defendant. He went upon the maxim that it was not good for the realm—that it was against public policy —for men to bind themselves not to exercise their trade. Two hundred years later Air. Jus tice Anderson cited this decision in holding a similar contract void; declaring such a contract to be "against the law, against the liberty of the freeman, and against the commonwealth:" adding that defendant might as well bind himself not to go to church. About the same time, a contract by a land-owner that he would not sow his land for a certain period was adjudged void as "tending to the inconvenience and prejudice of the State." The principle announced in these early cases has never since been repudiated, al though its application to particular contracts in restraint of trade (q.v.) has varied with chang ing business conditions and public opinion.
The wisdom of the principle has been doubted by eminent judges. One has said that "public policy is a very unruly horse, and when once you get astride it you never know where it will carry you." Another has said that "public policy does not admit of definition and is not easily ex plained." Still another has declared that public policy, which he defines to mean "the prevailing opinion from time to time of wise men," is "an excellent principle, no doubt, for legislators to adopt, but a most dangerous one for judges." A fourth has denounced the term as "vague, unsat isfactory, and calculated to lead to uncertainty and error when applied to the decision of legal rights. n is the province of the statesman and not the lawyer to discuss. and of the legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound Hoe law only, not to speculate upon what is the best, in his opinion, for the advantage of the community." Notwithstanding these criticisms, the principle continues to hold an important place. especially in the law of contract (q.v.). It has not the broad sweep given to it by Lord Hardwicke and his contemporaries. a century and a half ago,
when he remarked: "Political arguments. in the fullest sense or the word as they concern the government of the nation, must have great weight in the consideration of this court. and though there may be no had faith in contracts as to other persons, yet if the rest of mankind are concerned as well as the parties. it may properly be said that it regards the public utility." The present view of the subject is well expressed in a modern English decision. as fol lows: "You have this paramount public policy to consider, that you are not lightly to interfere with the freedom of contract." As already remarked. the earliest application of the principle was to contracts in restraint of trade. It was next applied in eases of cham pertv (q.v.) and to maintenance (q.v.). It is rarely invoked in the latter cases at present.
Another class of contracts to which the prin ciple was early applied was that of wagers. Indeed. Sir Frederick Pollock has expressed the opinion that the doctrine of publie policy. so far as regards its assertion in a general form in modern times, arose from wagers being allowed actionable at emninon law•. The validity of such contracts having been admitted, courts set to work to discourage them as much as possible by holding many of them to be against public policy.
Contracts promotive of immorality have al ways been deemed subversive of public utility and hence void. Agreements in restraint of marriage, wagers that one will not marry, and marriage brokerage contracts, or agreements to bring about the marriage of a particular person, have been held void because against sound public policy. This principle has been applied. also, in avoiding agreements for the sale of °dives and for the assignment of officers' salaries, as tend ing to injure the public service; in avoiding agreements with an alien enemy as well as those which are hostile to a friendly country, such contracts having a tendency either to harm our country directly or to embroil its with other nations. Most frequently of all, perhaps, it is applied in avoiding contracts for the stiffing of criminal prosecutions, or the perversion of jus tice in civil suits, or for services in lobbying with legislators, or improperly influencing ad ministrative officers. Combinations between busi ness houses or corporations entered into for the purpose of preventing honest competition. or the erection of monopolies, are void as against pub lic policy. ( See TRUSTS.) Consult: Pollock, Principles of Contracts (London, 1902) ; Anson, Principles of the English Law of Contracts (Lon don, 190I) ; Greenhood, Doctrine of Public Policy in the Law of Contracts (Chicago, 1886).