Chap. VI. J

OBSERVANCE OF CONTRACTS.

221

phrase, is against law, and void. “ The reports, in every periodof the English jurisprudence,” says Chancellor Kent, “ aboundwith cases of contracts held illegal on account of the illegality ofthe consideration ; and they contain striking illustrations of thegeneral rule, that contracts are illegal when founded on a con-sideration contra bonos mores, or one against the principles ofsound policy, or founded in fraud, or in contravention of thepositive provisions of some statute law.” The Roman law con-tains the same salutary doctrine. “Pacta, quae contra leges con-stitutionesque, vel contra bonos mores hunt, nullam vim habere,indubitati juris est.” * “ Pacta, quae turpem causam continent,

non sunt observanda.” f It will be instructive to review theseveral classes of contracts and agreements adverted to bythis learned jurist, and, to this end, I shall freely avail myselfof the assistance of Mr. Justice Story, of the Supreme Courtof the United States.

(1.) Contracts are illegal and void, which are against goodmorals, religion, or public rights. It is not necessary, thatsuch contracts should be prohibited by statute ; it suffices to ren-der them void, that they are founded upon considerations ofmoral turpitude.^ The rule of the Roman law quoted in thepreceding paragraph, is nothing more than the language of uni-versal justice. It applies a preventive check, by withholdingevery encouragement from wrong, and aims thereby to enforcethe obligations of virtue. “For although the law, as a science,must necessarily leave many moral precepts as rules of imper-fect obligation only, it is most studious not thereby to lend theslightest countenance to the violations of such precepts. Wher-

* Cod. Lib. II. tit. 3, 6. 1 Dig. Lib. II. tit. 14,27, § 4.

t This principle of contracts reflects light upon the doctrine of promises asdiscussed in the last chapter. For, if a contract, which is a mutual promise , isagainst law and void in a human tribunal, when “ founded upon considerationsof moral turpitude”; assuredly, a single promise, when founded upon the sameconsiderations, such as the case mentioned at p. 210, prompted by unhallowedpassions, violating decency, against public policy in the best sense of thatphrase, and tending to corrupt society, must be against good morals and voidin the tribunal of conscience. Perhaps, the case mentioned at p. 210, ought tobe regarded as a contract between the parties, and if so, it was not binding, onthe general principle, that “ contracts founded upon considerations of moralturpitude” are not binding.