leading statesmen and on the destiny of nations. It is almost impossible, with the representative constitutions of to-day, that a system opposed to public opinion should long remain dominant. But the value of public opinion has a deeper cause than the external influence it exercises. Do not all political order and all law, in the last analysis, rest upon the common consciousness of nations? and in this is not the wisdom of the Creator manifest, who has given human nature a moral conscience as well as logical intellectual power, so that it may understandingly and morally discriminate between right and wrong, and decide what is useful or injurious to the public welfare? The public conscience, and particularly public opinion, are chiefly developed in the middle classes, and hence so much importance is to be attached to their judgment, where there is question of the interests of the community, i. e., of the state. “Public opinion,” writes Niebuhr, "is that opinion which arises in minds uncontrolled by personal influence-an influence which might mislead those in power-that opinion which, in spite of the difference in individuals and of the very different conditions or situations in which they are placed, is so unanimously expressed, and not merely repeated by one man after another, that it may be taken as an utterance of universal truth and reason, and even as the voice of God himself." Public opinion may be compared to the chorus in ancient tragedy, which, observing the actions and sufferings of the dramatis personæ, gives expression to the emotions and opinions of the common consciousness of all. On the whole, it is equivalent to the verdict of a jury in a case of law. Public opinion is formed by innumerable impressions and observations, by deliberations in the various spheres of society. But it is always controlled and determined by the public conscience and the established principles of the nation. It manifests itself in the most varied forms, in free public speech, in the family, in the drawing room and the tavern, in meetings of every kind, and, above all, in the press and the national representations of the people. In the latter it becomes even an organic political expression, while otherwise it manifests itself in a more unorganized and changeable manner. It sometimes fluctuates, like life itself, but it is also susceptible of instruction, and often follows the leaders who are competent to communicate ideas to the educated classes and to influence them. Public opinion courts criticism, while it is not unreceptive of enlightenment offered by superior minds. In the same degree that schools and means for the education of the young are provided, the public sense and love of truth and justice increase. Besides, public opinion is subject to the direction of the prevailing spirit of the age, by which it is determined and moved. But, once its judgment has been fixed, determined by the pressure of some general necessity, it becomes a power which crushes all imprudent resistance and which commands attention. - It is not true, that public opinion reigns,since it can neither rule, nor

is it desirous of ruling. It leaves the government to those intrusted with it. It is not a creative, but pre-eminently a controlling, power It is no part of the public authority, but belongs to the national life. Only exceptionally does it change from its passive attitude to an active one, when the course pursued by those administering public affairs is in opposition to it. It is a public power, but not a public force. BLUNTSCHLI.

PUBLIC POLICY. This term, in legal acceptation, denotes the principle of government and law which aims at the general welfare, as distinguished from the welfare of particular individ-uals, and courts of law do not allow their decisions to conflict with this public policy. Our' tribunals do not confine their justice to the parties before them. As plaintiff and defendant are represented by counsel, so the people is representedi by the court, and it is its duty to protect the interests of the people. A litigant might prove the clearest right to relief, so far as his adversary is concerned, and yet if his right would in any way injure the public, it must be denied. There are three kinds of relief which the court is bound to refuse on public grounds, viz.: first, that which conflicts with positive law, the expressed wish and command of the people, e. g., relief based on a contract to evade the revenue laws by smuggling; second, that which is immoral or contra bonos mores, i. e., which would have an immoral effect on the public, such as a judgment for rent under the lease of a house for disorderly purposes; third, all other relief which can interfere with the public welfare. Each of these three classes of cases may properly be said to be "against public pol icy," but this expression is usually confined to the last class, and the claims of positive law and public morality are permitted to stand by themselves..

The third class of cases is somewhat indefinite.. The common law always strove to be definite, and sought for exact precedents. Hence a general discretionary power in the court to declare that a contract or will is void as against public policy, would seem to be repugnant to the established rules of law. Such a power has, however, been held to exist, and, as might have been expected, it gained currency in an anomalous way. The gencral principle, that a condition in a contract which is "against the general good "can not be enforced, was recognized in England at a very early date in Sheppard's "Touchstone." Bracton hints at it (book iii., p. 100), and lord Coke seems to regard as void those conditions which are "repugnant to the state." Still, the law on the subject was not developed and formulated until a much later day, when it became closely associated and even identified with the law of wagers. The English judges had by some mischance decided that wagers could be enforced at law, although in other civilized countries the contrary rule prevailed. They discovered afterward how pernicious the effects of betting were, and how much of the time of the courts was wasted in determining trivial questions,

but it was too late to retract. They could not then hold all wagers illegal, but they found some relief in the doctrine of public policy. Whenever they could, they decided that particular wagers were invalid, as against public policy, and they displayed considerable ingenuity in extending the number of such cases. Thus, a wager on the sex of a third person was held void, as it tended to call forth indecent evidence, although such evidence would not be considered an objection in any other case. A bet upon an election was not enforced, as it might have influenced votes, and the public is interested in removing such influence from the polls. In short, any wager upon public matters would have been held bad, because it would have created a dangerous interest in public affairs. So in Gilbert vs. Sykes, 16 East, 150, (1812), it appeared that in 1802 Sir Marks Sykes received a hundred guineas from one Gilbert, promising in return to pay Gilbert a guinea a day until the death of Napoleon Bonaparte, who was then first consul. The wager arose out of a conversation upon the probability of his assassination. Lord Ellenborough, the chief justice, said, "Whenever 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." The court decided that this contract was illegal, as it would naturally create a desire to assassinate a public enemy, contrary to the law of nations. In the case of Eltham vs. Kingsman, 1 Barn. & Ald., 683, (1818), the rule was carried to an extreme, although the court disposed of the issue on another point. One proprietor of livery carriages at Cheltenham bet watches with another proprietor that a certain Col. Longford would go to the assembly in his "fly by night" (a vehicle) and no other. The court held that the wager was void, because it would tend to subject Longford to great inconvenience by exposing him to the importunities of the proprietors of these vehicles, one of the judges remarking that "any person who has walked through Piccadilly must be sensible that this is no small inconvenience." Finally, those wagers were held bad, 1, which tended to create an improper bias in the mind of a person with relation to some public duty (as in the election case above mentioned), or, 2, which had a tendency to injure third persons or the public. Such wagers were regarded as "against public policy."- Meanwhile the doctrine of public policy spread through all branches of the law. The courts, after introducing the principle into the law of wagers, soon found that it was applicable to many other subjects of litigation. It has now been definitely settled that any contract or will may be declared void as against public policy, if it be calculated to injure either, 1, the government in its foreign relations, or 2, the government in its domestic relations and the administration of justice, or 3, the public gen. erally by restraining the freedom of individuals. Under the first head, viz., of contracts, etc., injurious to the government in its foreign relations, are included those which benefit an enemy or 150 VOL. III. 31

affront a friendly state. Consequently it is held that 'as the presumed object of war is as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country, and that such intercourse is illegal," (Esposito vs. Bowden, 7 Ellis & Blackb., 763, 779); and a contract between citizens of two countries is annulled! by a subsequent war, as it is against public policy to enforce it. "On the principles of the English law, it is not competent to any subject to enter into a contract to do anything which may be detrimental to the interests of his own country." (Furtado vs. Rogers, 3 B. & P., 191, 198.) The second division, viz., of contracts, etc., injurious to the government in its domestic relations and the administration of justice, embraces all agreements contemplating the bribery of public officers,. executive, legislative or judicial, or of any person having some public duty to perform, such as: voting. The leading English case on the doctrine. of public policy is Egerton vs. Earl Brounlow, 4 House of Lords Cases, 1, and it has reference to corrupt influence of this kind. The earl of Bridgewater died leaving a will, in which he left a very large estate to a certain legatce on condition that he should obtain the title of duke or marquis of Bridgewater. The house of lords held the condition invalid, as it held out a temptation to the legatee to indulge in bribery in endeavoring to obtain the title. In short, contracts creating an interest at variance with a duty are void. The sale of offices is also against public policy. So is the assignment of salary, not yet due, by a public officer. It is for the interest of the public that he should be able to support himself while he is in office, and he can not place his future salary out of his power. Again, it is illegal to compound a felony or misdemeanor, viz., to refrain from its prosecution for any consideration. This is against public policy, because it frustrates justice; and, for the same reason, maintenance and champerty, i. e., the impertinent encouragement and assistance of litigation by persons who are not interested, vitiates contracts. Agreements not to bid at judicial sales are void, and, indeed, all auction sales are carefully scrutinized to prevent frauds upon the public. Under the third class, viz., of contracts, etc., which are injurious to the public generally, as restraining the freedom of individuals, the most important are contracts made in restraint of trade. A man can not bind himself not to carry on his business. The people at large are interested that he should earn a living for himself and his family, and not become a pauper, and that there should be the freest competition in all trades and professions. The enforcement of contracts, taking away the right of men to pursue their callings, would discourage industry, diminish products, prevent competition, enhance prices, and introduce monopoly. A man may bind himself not to trade within certain limits; e. g., a retiring partner may agree with his copartners

remembered is, that the court always protects the interests of the people. Enough examples have been cited to show the nature of that protection in England and America. Our judges are always ready to annul engagements which are "against public policy," but it is probable that the principle will never be extended much further, for, as has been ably said, it is paramount public policy to allow freedom in making contracts, and to enforce them as made. (19 Equity, 462.)- See Pollock on Contracts, 251 et seq.; 1 Story's Equity Jurisprudence, § 259, note 1; Hubbard, J., in Sedgwick vs. Stanton, 14 New York Reports, 289, 291. ERNEST HOWARD CROSBY.

PUBLIC REVENUES. PUBLIC.)

(See REVENUES,

implies, forty the time been

law of self-preservation, by which persons and things coming from an infected region or place are subjected to a period of detention. Quarantine is either maritime quarantine, or land quarantine (cordon sanitaire); the former applicable to water craft, and the latter to all vehicles of transportation on shore or to pedestrians. It is now based upon the principle that all contagious diseases have their origin in a specific, particulate germ or poison, which is capable of being conveyed from place to place. Belief in this theory of contagion is nearly universal, yet the doctrine of the prevention of epidemic diseases by means of quarantine is differently viewed by different nations. Thus, England, for example, by reason of her insular situation, and the length of time required to reach her ports from infected regions, has not heretofore found it necessary to exact the long detention required by most other countries, and the medical profession are divided there, as elsewhere, upon the question whether cleanliness and sanitary measures alone will serve to prevent the introduction of contagious diseases, and their spread from place to place; some holding that if the ports were always perfectly clean and in good hygienic condition, there would then be no need of quarantine; that a clean ship sailing to and from a clean port could in no case communicate the contagion; a proposition which is self-apparent. But every-day experience teaches us that the millennial period has not yet arrived, when all cities and common carriers are clean. Therefore, until hygiene shall become understood by people of all nations, quarantines in one form or another are necessary, according to the physical characteristics of the port, and the presence or absence of epidemic disease. · The period of detention at a quarantine was formerly, as the

sence of epidemics, a simple inspection is all that is practiced or required. But the period of detention varies according to the period of incubation of the disease quarantined against, and the time is usually counted from the date of departure from the last port, or the date of termination of the last case of sickness on board. — Practice of quarantine. A quarantine station usually consists of a hospital for the sick (lazaretto), so named from the isolation of St. Lazarus on account of leprosy (mal de Saint Lazare); a boat, usually a steam vessel, to carry the boarding officer and remove the sick, if there be any found on board vessels, coming into port; and quarters for the attendants. On arrival of a vessel at the quaran tine, she is boarded by an inspecting officer, her bill of health is examined, the crew and passengers mustered, and the vessel itself inspected in every part to determine whether it be clean or foul. At this day the bill of health is not accepted as prima facie evidence of the sanitary condition of the vessel, but is only corroborative; even if it be stated thereon that the port from which the vessel last sailed was free from infectious disease, the inspector trusts to his own inspection of the vessel, and examination of the persons on board and the cargo, to determine whether or not the vessel should be detained in quarantine. If, however, the vessel is last from an infected port, and the period of incubation of the disease has not elapsed, the vessel is detained in quarantine until the expiration of that time, whether there be sickness on board or not. If there be found contagious sickness, the sick are removed to the hospital, the bedding and other articles in their state rooms or berths removed and destroyed, and the place thoroughly fumigated with the fumes of burning sulphur. In case the vessel is discov