Page:The New International Encyclopædia 1st ed. v. 16.djvu/601

* PUBLIC LAW. 525 PUBLIC POLICY. trative law, or that branch which prescribes the manner In which the various political powers of the State shall be exercised within the Constitu- tion : criminal law, or that branch which contains the rules affecting injuries to itself and disobedi- ence to the rules laid down for the common wel- fare, and the penalties to be inflicted for viola- tions of the same; and criminal procedure, also called adjective criminal law, or those rules of law affecting the bringing of criminals to justice. Besides these usual subdivisions of public law two other important divisions have been made comprising the quasi rights and quasi duties of the State as a juristic or artity'ial person against or in favor of natural persons, and the procedure relating to the State in this capacity, or the body of law prescribing the mode in which the State may sue and be sued. These rights of the State are irrespective of, and in addition to, those which belong to the right of eminent domain, and are those which govern it, as. for instance, a landed proprietor, the owner of personal property used in or about public buildings or of manu- facturing establishments, a contractor in engi- neering operation, a banker issuing promissory notes, a legatee under a will, etc. Its rights and liabilities under many of these heads are different from those of individuals or other artificial per- sons, especially with reference to liabilities for in- juries done b.v its servants, and as to the barring of its rights b.v prescription. The procedure pro- vided for when the State is a party is not essen- tially the same for both the parties, as in private law : but is relatively abnormal, and takes diffei'- ent forms according to whether the suit is against the subject by the State, or vice versa. For a discussion of the details of the various branches of public law see the titles Coxstitu- Tiox.L Law; Adjiixis;tr.tive Law; Law, Crimi- KAL; PRocEDrsE; Pleauixg ; C'ocBT.s ; etc, and consult the authorities referred to under those titles, PUBLIC'OLA, PuBLius Valerius ( ?-b.c. 503). A Roman consul, described by Livy and Plutarch as a magnanimous patriot. He bore a chief part in expelling the Tarquins. After the death of his colleague, .Junius Brutus, having heard of the suspicions of the people that he was aiming at despotic power, he demolished in the night a palatial edifice which he had reared, and ordered that the fasces which were carried before him as the emblem of power should be lowered when he came before the people. By his efforts, stringent laws were enacted to protect the liber- ties of the citizens. It was decreed that persons convicted of crime should have the right of ap- peal from the consuls to the people, and that whoever attempted to be king might be slain by any man at anv time. The surname of Publicola (or. in its older form. PopUcola), 'friend of the people.' was conferred upon him and his descend- ants. He was thrice elected consul. PUBLIC POLICY. That principle of the law which holds that no person can lawfuU.v do that which has a tendenc.y 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, ilr. .Justice Hull is reported to have been uncommonly angiy 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 libertv of the defendant. He went upon the maxim that it was not good for the realm — that it was against public polic.y — for men to bind themselves not to exercise their trade. Two hundred years later ilr. .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 ,vou never know where it will carry you." Another has said that '"public policy does not admit of definition and is not easilv 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 nncertaintv and error when applied to the decision of legal rights. It is the province of the statesman and not the lawyer to discuss, and of the legishiture 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 tke law only, not to speculate upon what is the best, in his opinion, for the advantage of the communit.v." Notwithstanding these criticisms, the principle continues to hold an important place, especiall.y 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 of the word as the.v concern the government of the nation, must have great weight in the consideration of this court, and though there may be no bad faith in contracts as to other persons, .vet if the rest of mankind are concerned as well as the parties, it ma.v properlv be said that it regards the public utilit.v." 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 cases 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 earl.v applied was that of wagers. Indeed. Sir Frederick Pollock has expressed the opinion that the doctrine of public policy, so far as regards its assertion in a general form in