integrity. Hence, the prominent rank which this principle holds in mercantile law, and the high and commanding tone of its stern morality in the rules it prescribes for the government and conduct of merchants." In regard to the numerous and important agencies known to mercantile transactions, the law with evident reasonableness requires, "that the trust of every agent be executed with the most scrupulous fidelity and exactness; that he pay careful obedience to the orders of his employers; that he consult their advantage in matters referred to his discretion; that he execute their business with all the despatch that circumstances will admit; that he be early in his intelligence, distinct in his accounts, and punctual in his correspondence." These injunctions apply to every one who undertakes to transact the business of another, or to perform for him any act on which his interest depends. "To remove all temptation from the agent to violate the rule requiring his intercourse with his principal to be open, frank, pure, prompt, and even above suspicion, which is so necessary to the security of trade and commerce, the law allows him, in no case, to enrich himself beyond his stipulated or customary compensation, by the property confided to his care." "The law requires at his hands the most inviolable integrity, and, to preserve him from the temptation to do wrong, it puts it out of his power to do it with success.” *

Thus every branch of the law enforces the precepts of good morals, so far as it is in its power to enforce them. But its power is limited; it cannot reach the many duties that belong to the class of imperfect obligations; these must be left to the consciences of individuals. Their nature is such, that human laws do not and cannot undertake to enforce them; and in this respect the rules of no department of the law, are so perfect as the dictates of conscience; and the sphere of morality is more enlarged than the limits of civil jurisdiction.†

3. The principles of Christian morals are recognised as the standard of the rules of law, and every contract or agreement inconsistent with good morals in a very extensive use of that

* Manuscript Lecture of Professor Greenleaf, of Harvard University. ↑ See p. 31.

phrase, is against law, and void. "The reports, in every period of the English jurisprudence," says Chancellor Kent, “abound with cases of contracts held illegal on account of the illegality of the consideration; and they contain striking illustrations of the general rule, that contracts are illegal when founded on a consideration contra bonos mores, or one against the principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law." The Roman law contains the same salutary doctrine. "Pacta, quæ contra leges constitutionesque, vel contra bonos mores fiunt, nullam vim habere, indubitati juris est." * "Pacta, quæ turpem causam continent, non sunt observanda." It will be instructive to review the several classes of contracts and agreements adverted to by this learned jurist, and, to this end, I shall freely avail myself of the assistance of Mr. Justice Story, of the Supreme Court of the United States.

(1.) Contracts are illegal and void, which are against good morals, religion, or public rights. It is not necessary, that such contracts should be prohibited by statute; it suffices to render them void, that they are founded upon considerations of moral turpitude.‡ The rule of the Roman law quoted in the preceding paragraph, is nothing more than the language of universal justice. It applies a preventive check, by withholding every encouragement from wrong, and aims thereby to enforce the obligations of virtue. "For although the law, as a science, must necessarily leave many moral precepts as rules of imperfect obligation only, it is most studious not thereby to lend the slightest countenance to the violations of such precepts. Wher

* Cod. Lib. II. tit. 3, 6.

Dig. Lib. II. tit. 14, 27, § 4.

This principle of contracts reflects light upon the doctrine of promises as discussed in the last chapter. For, if a contract, which is a mutual promise, is against law and void in a human tribunal, when "founded upon considerations of moral turpitude"; assuredly, a single promise, when founded upon the same considerations, such as the case mentioned at p. 210, prompted by unhallowed passions, violating decency, against public policy in the best sense of that phrase, and tending to corrupt society, must be against good morals and void in the tribunal of conscience. Perhaps, the case mentioned at p. 210, ought to be regarded as a contract between the parties, and if so, it was not binding, on the general principle, that "contracts founded upon considerations of moral turpitude" are not binding.

ever the divine law, or positive law, or the common law, prohibits the doing of certain acts, or enjoins the discharge of certain duties, any agreement to do such acts, or not to discharge such duties, is against the dearest interests of society, and, therefore, is held void; for otherwise the law would be open to the just reproach of winking at crimes or omissions, or tolerating in one form, what it affected to reprobate in another." Hence, all contracts (including bonds and other securities) for the printing and circulation of irreligious and obscene publications; contracts to promote or reward the commission of crimes; contracts to corrupt or evade the due administration of justice; contracts to defraud the public agents, or to defeat the public rights; all gaming contracts; and, in short, all contracts which in their nature are founded in moral turpitude, and are inconsistent with the good order and interests of society, are invalid, and incapable of confirmation and enforcement.*

(2.) In like manner, agreements which are founded upon violations of public trust or confidence, or the rules adopted by courts in furtherance of the administration of public justice, are held void. Thus, an agreement made for a remuneration to commissioners, appointed to take testimony, and bound to secrecy by the nature of their appointment, upon their disclosure of the testimony so taken, is void. So, an assignment of the half-pay of a retired officer of the army is void; for it operates as a fraud upon the public bounty. Agreements, founded upon the suppression of criminal prosecutions, fall under the same consideration; for they have a manifest tendency to subvert public justice. So, wager contracts, which are contrary to sound morals, or injurious to the feelings or interests of third persons, or against the principles of public policy or duty, are void.†

(3.) Contracts for the buying, selling, or procuring of public offices are inconsistent with the principles of sound policy, and are, therefore, illegal and void. It is obvious, that all such contracts must have a material influence to diminish the respectability, responsibility, and purity of public officers, and to introduce a system of official patronage, corruption, and deceit,

entirely at war with the public interests. The confidence of public officers may thereby not only be abused and perverted to the worst purposes, but mischievous combinations may be formed to the injury of the public, and persons introduced into the public offices, or retained in them, who are utterly unqualified to discharge the proper functions of their stations. Such contracts are justly deemed contracts of moral turpitude; and are calculated to betray the public interests into the hands of the weak, the selfish, the cunning, and the profligate. They are, therefore, held utterly void, as contrary to the soundest public policy; and, indeed, as a constructive fraud upon the government. They are against the spirit of the constitution of a free country, whose offices ought to be filled by fit and well-qualified persons, recommended for their abilities, and from motives of disinterested purity. It has been well remarked, that there is no rule better established (in law and reason, however much it may be otherwise in practice,) respecting the disposition of every office, in which the public are concerned, than this; Detur digniori. On principles of public policy, no pecuniary consideration ought to influence the appointment to such offices. It was observed in ancient times, that the sale of offices was one of the leading causes which accomplished the ruin of the Roman republic. Nullâ aliâ re magis Romana respublica interiit, quam quod magistratûs officia venalia erant.*

(4.) There are certain illegal and void contracts of a miscellaneous character, which deserve a passing notice in this connexion. Such are contracts made in evasion or fraud of the laws of the country, or against its public policy and interest. This principle embraces, not only contracts arising immediately from, and connected with, an illegal transaction, but, within certain limits, new contracts, if they are in part connected with the illegal transaction, and arise immediately from it. It embraces, too, 66 agreements, whereby parties engage not to bid. against each other at a public auction, especially in cases where such auctions are directed or required by law, as in cases of sales of chattels or other property on execution." Such agreements

Story's Equity Jurisprudence, Vol. I. pp. 292, 293.

"operate virtually as a fraud upon the sale; they are unconscientious (against conscience) and against public policy, and have a tendency injuriously to affect the character and value of sales by public auction, and mislead private confidence." So, if the artifice of by-bidding is resorted to at an auction to enhance the price, and deceive the real bidders, and they are in fact misled, the sale will be held void, as against public policy. Again, gaming contracts are not only prohibited by statute, but are, in their nature, highly immoral, as the practice of gaming tends to "No one has idleness, dissipation, and the ruin of families.

doubted, that, under such circumstances, a bill in equity might be maintained, to have any gaming security delivered up and cancelled." And it is settled, "that, if money is paid upon a gaming security, it may be recovered back, for the security is utterly void. The Roman law, too, contains a most salutary enforcement of moral justice upon this subject. "It not only protects the loser against any liability to pay the money won in gaming; but, if he has paid the money, he and his heirs have a right to recover it back at any distance of time, and no presumption or limitation of time runs against the claim.” *

(5.) The learned author to whose aid I am indebted for several of the last paragraphs, has examined the question, how far a contract of sale is rendered invalid, by the circumstance of the seller's knowing, at the time of the sale, that the article sold is to be converted by the buyer to an unlawful and immoral purpose. The general doctrine is well settled, that the consideration for which a contract is made must be legal, and even meritorious, consistent with good morals, and not against public policy and the interests of society. But the result of the "decisions seems to be," that mere knowledge of the illegal purpose for which goods are purchased, will not affect the validity of the contract of sale of goods intended to be smuggled into a foreign country, even in the courts of that country." It seems, that, to render the contract invalid, "there must be some participation or interest in the act itself." And yet, in an extreme case, Chief Justice Eyre said, that the seller "would not be allowed to

*

Story's Equity Jurisprudence, Vol. I. pp. 290, 302, 303.- Conflict of Laws, p. 205.