In May v. Brown, Mr. Justice Holroyd (a lawyer of no mean authority) said: "The argument ab inconvenienti' is of importance in considering what the law is, and there cannot be any doubt that the reception of this evidence would tend to great inconvenience and injustice." *146 * I have seen indeed a reference to the case of Richardson v. Mellish,2 where Chief Justice Best and Mr. Justice Burrough expressed opinions on the subject of deciding matters of law on the ground of public policy; but in that case those learned individuals did not disaffirm the doctrine, but merely laid down that (as a ground of decision) it ought to be used with great care and caution; Chief Justice Best said he would not decide on a doubtful question of policy, and Mr. Justice Burrough merely said, You must not argue too strongly on public policy; and so far from Lord Chief Justice Best being of opinion that public policy was not a ground of legal decision, it appears that in the case of Gifford v. Lord Yarborough Lord Chief Justice Best in delivering the unanimous opinion of the Judges to your Lordships' House four years after Mellish and Richardson was decided, said: "The Judges are therefore warranted by justice, by public policy, by the opinions of learned writers, and the authority of decided cases, in giving the answer they have directed me to give"; and the same learned Chief Justice, in Fletcher v. Lord Sondes, in stating his opinion to your Lordships' House, said: "I am aware these are rather considerations of policy than law; but, my Lords, if there be any doubt what is the law, Judges solve such doubts by considering what will be the good or bad effects of their decision"; (and he adds) "That doctrine cannot be law which injures the rights of individuals, and will be productive of evil to the Church and to the community." These are the deliberate and well-considered expressions of Lord Chief Justice Best, probably written down with care before they were delivered to your Lordships. I may add that in the same case of Fletcher v. Lord Sondes, another of the learned Judges, Mr. Baron * Hullock,5 in stating his opinion to this House, said: "The bond in this case operates equally against public policy (alluding to the case of The Bishop of London v. Ffytche), and is, therefore, on that ground equally void and illegal." *147 4 3 Bing. 590. 1 3 B. & C. 131. 22 Bing. 229. 35 Bing. 169. Now, the principle that certain contracts are illegal, and therefore void, because they are against public policy or the public. good, is familiar to every lawyer. Why are seamen not allowed to insure their wages (which is their part of the adventure), as well as the owner his ship, or the merchant his goods? Because it is for the public good that they should have no motive to relax in their exertions to preserve the ship and cargo. Why are trustees not allowed to enter into contracts with their cestui que trust? Why was it held by Lord Ellenborough unlawful for the putative father of an illegitimate child to compound with the parish and to pay or secure a gross sum to the parish, they taking the chance of the expense being more or less? Because it was against public policy. And this doctrine has been confirmed in several cases in every Court in Westminster Hall. So in the case of wagers, it is now fully established that no contract in the nature of a wager is valid which is against public policy. It is true in Walcot v. Tappin,1 and in Andrews v. Herne, which, though so differently named, turn out to be the same case, the plaintiff was allowed to recover twenty pounds from the defendant who had betted that sum against twenty shillings paid to him on the event of Charles Stuart becoming King of England in six months. No objection was taken to the unlawfulness of the bet, and the royalist who had backed his sovereign recovered against the republican who had betted twenty to *one against him; but in *148 Good v. Elliott,3 Buller, J. pronounces the contract illegal; and in Gilbert v. Sykes, Mr. Justice Le Blanc expressly says no such action could now be maintained. In that last case of Gilbert and Sykes, Lord Ellenborough lays down, “Wherever the tolerating of any species of contract has a tendency to produce a public mischief or inconvenience, such a contract has been held to be void"; and he cites the authority of Lord Mansfield in Jones v. Randall.5 The result of the cases seems to establish this distinction: that, where a contract is directly opposed to public welfare, it is void, though the parties may have a real interest in the matter, and an apparent right to deal with it; but where the contract is altogether gratuitous, and the parties have no interest but what they themselves create by the contract, it is sufficient that there be any tendency whatever to public mischief to render the contract void. An attention to this distinction will reconcile all the cases, and will furnish an answer to much that has been said in favour of this condition. This condition is purely gratuitous. If, therefore, it has any tendency to public mischief, it is void. There is one other case I am desirous of mentioning, Norman v. Cole,1 a decision of Lord Eldon's when Chief Justice of the Common Pleas. A sum of money had been lodged to assist in procuring a pardon, and the action was brought to recover it back. I cite the case not for the particular decision (it was held that the action would not lie), but for the principle laid down by Lord Eldon he says, "Where a person interposes his interest and * good offices to procure a pardon, it ought to be done * 149 gratuitously, and not for money." The doing an act of that description should proceed from pure motives, not from pecuniary ones; and it is the pecuniary motive that exists in this case, and that was created expressly that it might operate as a pecuniary motive, that constitutes, in my opinion, the vice of the condition. The allusion in the last case to a pardon induces me to put this case to your Lordships: suppose some member of the Derwentwater family were to become immensely wealthy, and were to leave large possessions to a relative, with a condition that, unless he procured the reversal of the attainder and the restoration of the peerage, he should forfeit the estates, and they should go over to another devisee: would such a condition be good? would it be good in respect of the reversal of the attainder? I cannot entertain a doubt that it would be clearly bad. Would it be good for a restoration or revival of the peerage? It seems to me impossible to distinguish this last case from that now before your Lordships; it is the very case under discussion. My Lords, after all these authorities, am I not justified in saying that, were I to discard the public welfare from my consideration, I should abdicate the functions of my office,-I should shrink from the discharge of my duty? I think I am not permitted merely to follow the particular decisions of those who have had the courage to decide before me, but in a new and unprecedented case to be afraid of imitating their example. I think I am bound to look for the principles of former decisions, and not to shrink from applying 1 3 Esp. 253. them with firmness and caution to any new and extraordinary case that may arise. The conclusions to which I have arrived, from the decided cases and the principles they involve, are, that all matters relating to the public welfare-all acts of the Legislature or the executive * - must be decided and determined upon their own merits * 150 only; and that it is against the public interest (and therefore not lawful) for any one officiously, wantonly, and capriciously, without any motive but his own will, to create any pecuniary interest or other bias of any sort in the decision of a matter of a public nature, and which involves the public welfare, the party creating that interest having no special and particular individual interest in the subject matter with which he intermeddles. My Lords, in the case of wagers and contracts this has been repeatedly and solemnly decided by all the Courts (and the case of conditions. is an à fortiori case). It is no doubt some restraint upon the freedom of human action, and some limit to the contracts a man may make and to the mode in which he may use or dispose of his property, but (as far as wagers are concerned) it was (before the late Act of Parliament) the clear, settled, established law of the land, vouched by the decisions of every Court in Westminster Hall, spread over a period of upwards of a century; and the Judges who have concurred in these decisions include every illustrious name that has adorned the profession of the law during that time. In principle I cannot find any distinction between a wager during life and a condition annexed to a legacy or devise to take effect after death: the mischief of both is precisely the same. If there be any distinction in respect of the right to dispose of property, it ought rather (as it seems to me) to be in favour of the right of the owner to dispose of it as he pleases while alive; but I think there is no distinction, and I am of opinion that, according to the law of England, the owner of property cannot make any matter the subject of a condition to operate after his death which he could not have made the subject of a contract or a wager during his life; I think no man can leave his property clogged and conditioned by his own personal views of public affairs, or by * 151 his posthumous ambition (if I may so call it); he cannot make his political opinions run (like a covenant) with his land; he may leave it to whom he pleases, but it must be unfettered by any condition bearing upon matters connected with the public welfare, as * to which he must leave those who come after him to decide, and to act upon their own view of the merits of any public question, unfettered by any condition which may create a motive or exercise an influence that would disturb a judgment that ought to be founded on the public good alone. My Lords, it may be that Judges are no better able to discern what is for the public good than other experienced and enlightened members of the community; but that is no reason for their refusing to entertain the question, and declining to decide upon it. Is it, or is it not, a part of our common law, that in a new and unprecedented case, where the mere caprice of a testator is to be weighed against the public good, the public good should prevail? In my judgment, it is. Whether the public good is really concerned in this condition, and the principle which it involves, is the question for the consideration of your Lordships; and your Lordships will have to decide whether or not it be mischievous to the community at large that every branch of the public service, civil and military, every department of the state, should be besieged by persons who, at the peril of losing their estates, are making every effort to obtain offices for which they may be unfit, and to procure titles and distinctions of which they may be unworthy; that no man should be able to accept or decline public service without searching the wills at Doctors Commons to see whether he may not thereby call into action some condition precedent or subsequent which may ruin himself or some very near relation; that *152 an able statesman or a victorious general should (in some period of great emergency) have to choose whether he will save his country and lose his estate, or save his estate by declining the public service; and finally (in addition to the present complicated system of conveyancing) that the real and ultimate ownership of a large portion of the landed property of the kingdom should remain in abeyance till it appeared whether one member of a family would become a bishop, another member of another family a common law or equity judge, who should (thirty years hence) have the custody of the great or privy seal; or, whether the members of the learned professions in London should one day have the privilege of returning members to Parliament, and whether the young gentleman now at school should become one of such members, and afterwards a peer of the realm. My Lords, I am not sure that some limit may not be discovered to the fanciful vagaries and * |