cost of his efforts, however disinterested they may have been, and however much-but for the subsequent loss-they would have benefited his insurers.

This, whenever his efforts had been fruitless, was the position of the assured; and this was the position-as unfair to the assured as it was repugnant to the best interests of his underwriterswhich was deliberately swept away by the framers of the Sue and Labour clause. For the clause recognizes no limitation of liability, and imposes no condition as to success of undertakings within its contemplation, the cost of which, when properly incurred, is in all cases to be made good to the assured.

Such was the object of the clause, and such, undisputed, is its effect.

Of this no doubt was entertained by Emerigon, who thus asks and answers his own question :

'Si les frais de sauvetage excèdent la valeur des effets sauvés, cet excédant est-il à la charge des assureurs?

Suivant les clauses insérées dans les formules de diverses places de commerce, les assureurs, indépendamment des sommes par eux assurées, sont tenus de payer l'excédant des frais de sauvetage '.'

And after reciting various forms adopted by Antwerp, and by different towns in France, he declared without qualification that

'Par ces formules, les pouvoirs les plus libres sont donnés à l'assuré et à ses représentans, afin de les inviter à travailler au sauvetage, sans être arrêtés par la crainte d'en supporter euxmêmes les frais; mais les assureurs, en souscrivant pareils pactes, contractent à l'aveugle un engagement dont les conséquences sont indéfinies 2.'

The English clause would seem to have scarcely varied since its first adoption, the form set out at the commencement of this note being almost an exact verbal reproduction of that to be found in a policy dated London, Feb. 15, 1613, already referred to (n. supra).

This is true also of policies on the Continent, of which the three following, antedating the appearance of the Ordonnance (1681), reveal no practical difference when contrasted with the forms set out by Emerigon as being in vogue in 1783 in the towns of Antwerp, Rouen, Nantes, and Bordeaux.

A French policy dated London, Jan. 8, 1565, a contemporary translation of which has been reproduced by the Selden Society 3, after giving the assured in usual form authority to work for the

1 Emerigon, p. 258. 2 Ibid., p. 239. Although dated London, this policy is French in form as well as in language, and cannot be deemed an English contract: v. also n., p. 411 above.

recovery of his goods, proceeds :-' And we shall paye all charges averedge and expenses whiche shall beren at the sewte and saving of them said shippes and merchandisses be yt that there be anything recovered or not.

Cleirac gives a form of policy of the date Rouen, Oct. 15, 16291, which authorizes the assured 'en cas que fortune advienne, de mettre, ou faire mettre la main pour la recuperation des dites marchandises, tant en nostre profit qu'en nostre dommage, les pourrez vendre & distribuer si besoin est sans nous demander permission ny congé: & payerons tous frais advancez & despensez qui se feront.'

Lastly, the Selden Society have reproduced a translation of a Dutch policy, dated 'first of Maye, 1638 in Hamburrowe 2,' in which the Sue and Labour clause concludes: 'And wee doe promise in all cases (or howsoever itt happen) to paye the costs and charges made in the said recouverie and benefitting of the said marchandises whether there be any thing thereof obtayned or not.'

The form given by Emerigon as in force in his day at Rouen is identical with the earlier one set out by Cleirac; while those of Antwerp, Nantes, and Bordeaux, like their prototypes (supra), are expressed to be operative whether in result anything shall have been saved or not 3. This suggests once more that the Ordonnance had created no new law; and the clause, thereby losing none of its effect, required no material alteration. The conclusion then submitted is that the Sue and Labour clause originated in a desire of underwriter and assured for mutual assistance in times of danger, and that its object, co-extensive with its effect, was not to 'obviate a doubt "' but to surmount a barrier erected in infancy by Insurance for its own protection, and long years afterwards to all Europe made manifest, by those words of limitation in the famous Ordonnance of the Grand Monarque-'jusqu'à concurrence de la valeur des effets recouvrés' (Liv. III, Titre vi des Assurances, Art. 45).

4'

1 Cleirac, p. 348; Pardessus, p. 430.

2 Select Pleas in the Court of Admiralty, vol. ii, p. 57.

H. BIRCH SHARPE.

3 Emerigon, p. 238. 'Anvers: Soit que quelque chose soit recouvrée ou non. Nantes: Soit qu'il y ait un recouvrement ou non. quelque chose, ou point.'

Marshall, p. 340.

Bordeaux Soit qu'il se sauve

THE BASIS OF CASE-LAW.

II.

3. PUBLIC policy and other practical considerations as primary sources

of case-law.

(a) We may first consider that comparatively small part of caselaw in which certain contracts, and certain conditions and other provisions in contracts, wills, and other documents, have been declared void by the Court, on the ground of public policy. That the Superior Courts have a general jurisdiction in this regard, when uncontrolled by precedent, is clearly established by the great case of Egerton v. Earl Brownlow1, and the decisions therein referred to. There the House of Lords had to determine the question whether the following proviso in the will of the Earl of Bridgewater was valid: If Lord Alford shall die without having acquired the title of Duke or Marquis of Bridgewater to him and the heirs male of his body, then, and in such case, the use and estate herein before directed to be limited to the heirs male of his body shall cease and be absolutely void.' Four out of the five Lords who delivered judgments, or speeches, pronounced the proviso void as against public policy, and in so doing distinctly upheld the general power of the Court to ground its decisions, in such cases as this, upon public policy in the broad sense. The House, in the first instance, had referred the question to the Judges, whose views, with the exception of those of Pollock C. B., did not harmonize with the conclusion afterwards come to by the House itself. Pollock C. B., however, puts the matter in the clearest way. He says (p. 140, et seq.) :—

'It is perfectly clear and certain (as a principle of law) that if this condition be against public good it is void. This is distinctly laid down in Sheppard's Touchstone, Ch. 6, where among other conditions which are contrary" to law," or "against the liberty of the law," a condition is also pronounced to be void which is "against the public good": and the learned writer must have meant something other than and different from "contrary to law."

He then proceeds to consider how far public policy' or the ' good of the State' has been recognized as a ground of decision with respect to covenants, contracts, and other such matters, and says (pp. 144-5):

'This doctrine of the public good or the public safety, or what is (1853) 4 H. L. C. 1.

sometimes called "public policy," being the foundation of law, is supported by decisions in every branch of the law; and an unlimited number of cases may be cited as directly and distinctly deciding upon contracts and covenants on the avowed broad ground of the public good, and on that alone. . . It is distinctly laid down by Coke (Co. Litt. 66 a) "nihil quod est inconveniens est licitum." He then refers to cases in which, upon grounds of public policy, the Courts have relieved from marriage-brokage bonds, and have pronounced against insurance by seamen of their wages, and against contracts of trustees with their cestui que trust, and against contracts of the nature of wagers. At p. 149 he says:

'I think I am not permitted merely to follow 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.'

Among the Peers these views are supported, in the strongest way, by Lords Lyndhurst, Brougham, Truro, and St. Leonards, while Lord Cranworth L. C., though he disagrees as to the validity of the proviso in question, by no means pronounces against the power of the Court. Lord Lyndhurst says (p. 160):

:

It is a well-established rule of law that a condition against the public good, or public policy, as it is usually called, is illegal and void. What cases come within the rules must be decided as they. successively occur. Each case must be determined according to its own circumstances. When the case of a trustee dealing with his cestui que trust was first considered, it must, in the absence of precedent, have been determined upon weighing the public mischief that would arise from giving sanction to such dealing. So as to transactions between attorneys and their clients: also as to seamen insuring their wages, and other similar cases referred to in the course of the argument. The enquiry must, in each instance, where no former precedent had occurred, have been into the tendency of the act to interfere with the general interest. The rule, then, is clear. Whether the principal case comes within the rule, it is the province of the Court in each instance, acting with due caution, to determine.' Lord Truro (p. 195) says:—

The principle embodied in the maxim, sic utere tuo ut alienum non laedas, applies to the public in at least as full force as to individuals. There are other maxims equally expressive of the principle, nihil quod est inconveniens est licitum, and salus reipublicae suprema lex. The principle I conceive to be universal, as governing as well transfers by deed, as the validity of contracts and dispositions by will... This principle has been expressed in different language, but in all cases to the same import as applying to matters contrary to law because against the public good... Public policy, in relation to this question, is that principle of the law which holds that no subject could lawfully do that which has a tendency to be injurious to the public, or

against the public good. There, no doubt, will be occasionally difficulty in deciding whether a particular case is liable to the application of the principle: but there is the same difficulty in regard to the application of many other rules and principles admitted to be established law. The principle itself seems to me to be necessarily incident to every State governed by law. Judges... must be presumed to take care not to apply the law to doubtful cases, so as unnecessarily to interfere with transactions which are the subject of judicial investigation.'

Thus it was on the ground of public policy that in Evans v. Jones 1 the Court of Exchequer held, in accordance with previous decisions, that a wager as to the conviction or acquittal of a prisoner on trial on a criminal charge is illegal; whilst on the other hand, in Cooke v. Turner 2, the same Court held against the alleged invalidity, on the ground of public policy, of a condition in a Will of real estate that if the devisee should dispute the Will, or the testator's competency to make it, the disposition in favour of such devisee should be revoked, because, as Rolfe B. said (p. 736): The State has no interest whatever apart from the interest of the parties themselves.'

The House of Lords in Egerton v. Earl Brownlow distinctly overruled the view of the law advanced by judges of no less reputation than Cresswell J., Alderson B., and Parke B. in that case, that 'public policy' as a basis for judicial decision must be understood to mean no more than 'policy of the law.' Alderson B. states this view very clearly (p. 106):—

'If by public policy is meant the object and policy of a particular law, then I readily accept it as a rule, for it is a very reasonable mode of construing a particular law to look at the object with which it was framed, and the evil it was apparently intended to remove... But here it seems to be contended that an act, possible and legal, but in the opinion of sensible men not expedient to be done, is for that reason to be void as contrary to public policy. Now I think that this, which is really what is here meant, would altogether destroy the sound and true distinction between judicial and legislative functions.'

66

So, also, Parke B. says (p. 123):

'It is the province of the statesman, and not the lawyer, to discuss, and of the legislator to determine, what is the best for the public good, and to provide for it by proper enactments. . . The term public policy" may indeed be used in the sense of the policy of the law, and in that sense it forms a just ground of judicial decision. It amounts to no more than that a contract or condition is illegal which is against the principle of the established law.'

It is important to point out clearly that this restricted view of 1 (1839) 5 M. & W. 77; 52 R. R. 645. 2 (1846) 15 M. & W. 727; 71 R. R. 808.