V. Caller. JULY 1829. be found, where an inquiry has been instituted to shew that an actual loss has been occasioned to the government; Carrington and it would be apart from the principle of the rule to require it. It is enough if the plans of the company opposed directly the views of the government; and on this point there can be no doubt. The declared purpose of the company was to purchase the lands as cheap as practicable; the object of the government, as manifested by failing to establish a maximum, was to realize their full value. The purchase at the company sales did not constitute a substantive contract, distinct from the purchase at the gov ernment sales; they were both provided for in the articles of association, and had a reference to each other; the one depending upon the other, and so understood and stipulated before the government sales were made. With what propriety then could the plaintiff argue that the purchase by Caller was disconnected with the purchase by the company? Did not the one grow immediately out of the other, and was not the sale at which Caller purchased, the direct and immediate consequence of the purchase by the company? I have endeavored with laborious attention, to discover the two contracts which we have been told exist; and confess that I have been unable to do so. I view the two sales as constituting distinct transactions provided for by one entire contract. As a play embraces many acts and scenes, which disconnected, are imperfect, and discover not its moral, so the stipulations of the association, in order to a full developement of the contract, must be considered as they were made, altogether. For the purposes of argument, I might admit that in fact two contracts have been proven, and if in truth it were so, the plaintiff would not be benefitted, if the first contract was illegal; because the second, to use the language of the Court in Armstrong and Toler, "would clearly be a promise growing immediately out of, and connected with the illegal transaction." If the members of the company had have divided the lands purchased, before the sales by the company, any disposition by each or either, of his share, would have constituted a new contract, and been recoverable on without regard to the original taint. The case supposed in Armstrong and Toler, of advances made by a friend to whom goods had been illegally consigned, with his consent, and of a promise by the owner to indemnify him for his advances, is a much stronger case of a new contract; yet the Court there held, that the promise constituted a part of res gesta and was tainted by the illegal transaction. JULY 1829. Carrington v. Caller. It has been argued that the defendant cannot object to the payment of his bond, because of the political taint of the contract, unless he has placed the plaintiff in the situation he was in before the bond was executed, or has offered to do it. This argument appears to be an interpolation of the rule by which this description of defence is tolerated. It is proper to examine it. I understand that in relieving against a contract denounced by the policy of a law, the relief is not afforded with a view to favor the defendant, but to discourage contracts which restrain or control the operation of the law; therefore, those principles of justice by the application of which individual rights are settled, are not permitted in such cases to have a controling influence. In Holman v. Johnson, a Lord Mansfield says, a Cowp. 341. that it is not in favor of the parties that the objection is ever allowed, but it is founded on the principle of public policy, ex dolo malo non oritur actio. "No Court," says he, "will lend its aid to a man who founds his cause of action upon an illegal or an immoral act. If, from the platiff's 's own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of the positive law of the country, there the Court say, he has no right to be assisted." That action was brought to recover the price of tea, sold and delivered by theplaintiff in Dunkirk, in France, with a knowledge that it was to be smuggled into England. Yet he had no concern in the smuggling, but sold it in the ordinary course of his business. The contract was complete by the delivery of the tea at the place of sale. But Lord Mansfield said, "if the plaintiff had undertaken to send the tea into England, or had any concern in running it into England, he would have been an offender against the laws of that country." That is a very strong case in favor of the rule, that political taint vitiates a contract, and conclusive to shew that the doctrine of in statu quo is inapplicable. If the defendant might in such case be deprived of this answer to the action, unless he would restore to the plaintiff what he had received, the rule would be inefficient, and the defence afforded by it valueless. If in an action for money had and received, the defendant was compelled to pay the plaintiff so much money as in moral JULY 1829. Carrington V. Caller. justice he should account for, before he could allege political taint, the principle of the rule would be disregarded, and the reason of it, which is the discouragement of such contracts, would not be subserved. In Hawson v. Hancock, before cited, no effort was made to prevent the defence because the defendant did not offer to pay the moa 4 Dallas 269. nev. In Mitchell v. Smith, a it was objected that the defendant could not be relieved, because he had received the possession of the lands. The Court disregarded the objection, and declared the contract void. I lay it down as a general proposition, that the doctrine of statu quo does not apply to a contract void in its inception for illegality, but only to one, which by some post factum circumstance becomes so; as if, on a breach of contract by the vendor, the vendee elect to disaffirm, where it has been executed by him either in the whole or in part, he must offer to place the vendor in statu quo before he can recover back the money he has paid. And the cases cited by the plaintiff are all of that character. For the plaintiff it has been argued, that admitting the contract once to have been impure, it has been purged by its recognition by the officers of government. There is nothing in the record which shews this to be the fact; but we will suppose it to be so, with a view to test the force of the argument. The recognition by the government, of the purchases at these sales, can have no influence in determining whether the purposes of the association were impolitic. The policy of the government was declared by an act of the legislative department, and is not subject to the control of either of the other departmenis; the subject being one exclusively within the control and superintendance of Congress. Let it be supposed that Congress had the sagacity to discover that its policy was unwise, and the patriotism to denounce it; would such an act operate an ablution of all the contracts of the company which were affected by the political stain? I apprehend not. the contract was illegal when entered into, it is beyond governmental and legislative competency, so far as third persons are concerned, to give to it validity. That such was the case with the contract we are considering is already shewn. If It is further argued, that before we determine that the contract is illegal, we must believe that the acts of Con-. gress under which the lands were sold, were dictated by a wise policy. I cannot persuade myself that it would be proper for the judiciary to refuse to give effect to a legisla tive act, because it did not seem to be the result of wisdom. Such a power in the judiciary places it above the legislature, and gives to it, if I may so speak, political omnipotence; it is a power by no means invidious, and one which I shall take pleasure at all times in repudiating. It belongs exclusively to Congress to legislate upon measures which affect the Union, and its acts, within the legitimate scope of its powers, are not subject to revision by any other authority. Least by what I have said it be supposed that I consider the method of disposing of the United States' lands as expedient, I take occasion to say, that I view the system as unwise in theory and ruinous in practice. As ordinary foresight might have anticipated, the government has not in most cases, received exceeding one half the sum which the settler has had to pay for a home; the other half has been paid to the speculator. As fondness for gain is natural, and the land market has promised such an exorbitant increase, as well the charitable and benevolent, as the unfeeling monster who looks at his gold as the hope of his happiness, have engaged in the scheme of speculation. Having discussed all the points deemed material to be noticed, and having shewn that the bond of Caller is affected with political taint, it remains only to shew that Meggison's bond is subject to the same objection. Meggison was not a member of the company, but agreed with May not to bid at the government sale, on condition that the company would purchase and sell to him, two quarter sections of land, at two dollars per acre advance. The company recognized the contract as to one quarter, and refused as to the other; it was sold at the company sale, and Meggison became the purchaser. The contract with May, and which the company adopted in part, was against the policy of the law; its effect being to do away competition, by a renunciation by Meggison, of his right to bid. If the consideration of Meggison's bond was the eleven dollar purchase alone, I should be inclined to sustain it, on the ground that it would be founded on a consideration disconnected with the company purchase, and therefore free from political taint. But the two purchases by Meggison, constitute parts of one entire contract, for which bonds were given for the purchase money, without distinguishing the amount of each. I have no hesitancy in determin JULY 1829. Carrington V. Caller. JULY 1829. Carrington V. Caller. a Crawford's Pl. 296. 1 T. ing that his bond is void; because the contract, being illegal in part, as against policy, it is void for the whole. a I am accordingly of opinion, that the judgments should be affirmed.* By JUDGE CRENSHAW. I am glad that these cases which have been pending for years, and which have caused much excitement and expectation in our southern community, and on the principles involved in which, it is said that immense sums are yet depending, are now, after three solemn arguments, to be decided and set at rest forever. In the progress of the argument, at every stage of the proceeding, my first opinion has been strengthened and confirmed in the conviction of my own mind; and though it is my misfortune on the most material points to differ from a majority of the Court, yet I have the consoling reflection that my opinion is the result of much deliberation, and as I believe, is well sustained by the rules of law and the principles of justice. It appears that in the Court below, the judgments on the demurrer to the evidence were in favor of the defendants, and who are also defendants in this Court. The facts of the cases are spread upon the record, and as far as they have been refered to in the opinion pronounced by a majority of the Court, they have been correctly recited; it is therefore unnecessary for me again to repeat them. I shall only take notice of those positions and legal deductions in which I am constrained to dissent from the judgment of the Court; for to some of them I yield my most hearty concurrence. It is said that the original object of the land company being to destroy competition at the land sale, and to buy the public lands at an under value, or at the minimum price fixed by law, was against public policy and therefore void. If this rule be generally correct, yet it is at least questionable whether the peculiar circumstances of the cases at bar do not form an exception to the rule. Could it be against public policy for the people to procure lands and a home in the wilderness of Alabama on the best and cheapest possible terms? Will it be contended that an NOTE. By Judge Collier. Since the determination of these cases, the Supreme Court of the United States, in two cases, Reported in 4. Peters Rep. have fully sustained the view taken in this opinion of the case of Armstrong v. Toler. |