Page:Harvard Law Review Volume 9.djvu/122

94 94 HARVARD LAW REVIEW, He then goes on to say : " They are all very proper considera- tions for a constitutional convention in framing the fundamental law, and for the people in adopting it, as well as for the legislature, who, in all matters not fixed by the Constitution, are properly vested with the power of determining the public policy; and in a case where it should very clearly appear to the court, from the amount of the lands purchased, or the purposes for which they were purchased, or other circumstances, that the dangers men- tioned were seriously to be apprehended, it may be that the court would be authorized, without any legislative prohibition to that end, to refuse to recognize the law of the State creating the corpo- rations, or so much of it as had undertaken to confer the right of holding such lands." No case, however, it is believed, can be found in which a court of last resort has denied the right of a foreign corporation to hold real estate, as against public policy, solely because in the opinion of the court the exercise of such a right would be injurious to the public, or prejudicial to the interests of the State. On the other hand, whenever the question has been directly presented, the au- thority to make a decision on such a ground has been disclaimed. Thus, in an early New Hampshire case,^ it was objected that a banking corporation established in Massachusetts had no right to hold and convey real estate in New Hampshire. The court, in overruling the objection, said : *' If any evil is to be apprehended in this respect, the remedy for the correction of it lies not with us." And in an Ohio case,^ the Chief Justice of that State said : " There is nothing in the legislation of this State to limit the general ca- pacity of the Bible Society to take by devise real estate in Ohio. There are no statutes of mortmain in this State. For myself, I heartily wish there were. But we must declare the law as we believe it to be." In recognition of the danger that courts in applying the doc- trine of pubHc policy may act legislatively, and not judicially, the modern decisions, while maintaining it to be the duty of the courts to keep in sight the public good, set bounds to the domain within which this duty is to be exercised.^ It would seem that outside of certain well-defined classes of acts which under the common law are contrary to public policy, — as, for example, contracts in re- 1 Lumbard v. Aldrich, 8 N. H. 31. 2 American Bible Society v. Marshall, 15 Ohio St. 537, 544. 8 Anson on Contracts (6th ed), 192.