Page:American Journal of Sociology Volume 1.djvu/671

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RECENT LEGISLATION IN RESTRAINT OF TRADE
659

upheld now by our own courts which a former generation would have avoided as contrary to the supposed policy of the law. The rule remains, but its application varies with the principles which, for the time being, guide public opinion.[1]

Nothing is more certain than the truth of these statements, which might be multiplied indefinitely from the law reports. They are iterated and reiterated by the judges every day:

Public policy is variable—the very reverse of that which is the policy of the public at one time may become public policy at another.[2]

It changes with the changing condition of the times. It is hardly to be expected that a people who are transported by steam with a rapidity hardly conceived of a century ago, who are in constant and instant communication with each other by electricity, and who carry on the most important commercial transactions by the use of the telegraph, while separated by thousands of miles, will entertain precisely the same views of what is conducive to the public welfare, in commercial and business transactions, as the people of the last century, who lived when commerce crept slowly along the coasts, shut out of the interior by the absence of roads, and hampered by an almost impassable ocean.[3]

Public policy differs also in different states and countries, as well as in the same country at different times. As people differ in their beliefs, opinions, aims, habits and surroundings, it is natural and inevitable that they should entertain different views as to what will best promote the public welfare. We need not stop to illustrate this simple and obvious rule.

From the fact that public policy is thus variable, it follows that no fixed rule can be laid down as to what is or is not contrary to public policy. We look to the law reports to find what, from time to time, has been adjudged upon the subject, and here we see in clearest perspective the variance to which we have just referred. Upon the most casual examination of the law books we instantly discover that cases declaring a rule of public policy in one year of grace are of very little or no value as authority in

  1. Evanturel vs. Evanturel, L. R. 6 P. C. 1, 29. Approved by Bowen, L. J., in Maxim-Nordenfeldt Guns and Ammunition Company vs. Nordenfeldt (1893), 3 Ch., 665.
  2. Griswold vs. Ill. Cent. Ry. Co. 90 Iowa, 265, 1894.
  3. United States vs. Trans-Missouri Freight Assn., 58 Fed. Rep., 58.