Sec 371

Wherever an agreement amounts to an indictable conspiracy, it is void when sued on in a civil court. Under this head may be enumerated conspiracies to seduce or to cause to elope, or to debauch;1 to procure a fraudulent marriage or divorce;2 to procure an abortion;3 and to interfere with the rights of sepulture.4

So of immoral agreements amounting to indictable conspiracies.

1 L. 6, I. 30, C. de pact. (2, 3). See Colburn v. Patmore, 1 C. M. & R. 73; Worcester v. Eaton, 11 Mass. 368.

2 Poplett v. Stockdale, Ry. & M. 337.

3 Shackell v. Rosier, 2 Bing. N. C. 634.

4 Field, J., Oscany v. Arms Co., 103 U. S. 261; cited infra, sec 402, 403.

5 Cowan v. Milbourne, L. R. 2 Exch. 230. "It has never been decided, but it seems highly probable, that agreements are void which directly tend to discourage the performance of social and moral duties. Such would be a covenant by a landowner to let all his cultivable land lie waste, or a clause in a charter party prohibiting deviation even to save life."Pollock, 3d ed. 323, citing Cockburn, C. J., L. R. 5 C. P. D. 305.

Sec 372

"Wherever a libel would be indictable, then the courts refuse to enforce a contract of which its preparation or publication is the consideration.5 Under this head fall indecent and seditious publications, as well as libels on individuals.6 - Mr. Pollock7 maintains "that for all practical purposes the civil law is determined by and coextensive with the criminal law in these matters; the question in a given case is not simply whether the publication be immoral, but whether the criminal law would punish it as immoral." In view of the constitutional guarantees in this country of the freedom of the press, this position will be generally accepted in the United States. At the same time it does not follow that because by a local statute publications of a certain class, otherwise libellous, are privileged, the law will enforce an agreement for the issue of such publications. It may be easy, for instance, to conceive of indecent publications in respect to candidates for office, which would be privileged by some of our statutes, but which, as a matter between individuals, would be so steeped in turpitude that no court would give its aid to sustain an agreement for their publication. And we may safely say that no agreement will be sustained for publishing a document that is a libel at common law. - As we have seen, the concurrence of other motives is in such cases no defence.8

So as to libels.

1 Wh. Cr. L. 8th ed. sec 1361; R. v. Wakefield, 2 Town. St. Tr. 112; R. v. Delaval, 3 Burr. 1435; R. v. Gray, 1 East, P. C. 460; Mifflin v. Com., 5 W. & S. 461; Anderson v. Com., 5 Rand. (Va.) 627; State v. Savoye, 48 Iowa, 562.

2 Wh. Cr. L. 8th ed. sec 1362; R. v. Wakefield, 2 Town. St. Tr. 112; R. v. Means, 2 Den. C. C. 79; 4 Cox C. C. 423; Com. v. Waterman, 122 Mass.

43; Resp. v. Hevice, 2 Yeates, 114; Cole v. People, 84 111. 216; State v. Murphy, 6 Ala. 765.

3 Com. v. Domain, Brightly's R. 441.

4 Wh. Cr. L. 8th ed. sec 1365.

5 Stockdale v. Onwhyn, 5 B. & C. 173; Poplett v. Stockdale, Ry. & M. 337; Gale v. Leckie, 2 Stark. 96.

6 Wh. Cr. L. 8th ed, sec 1594 et seq.

7 3d ed. 286.

8 Supra, sec 339.