§ 610. The next subject of which we propose to treat is that of unlawful contracts. Contracts are sometimes said to be illegal, either because the consideration of the promise is illegal, or because the promise itself is illegal. The illegality of the consideration has been already adverted to. But the distinction between an illegal promise, and an illegal consideration, seems purely technical, inasmuch as the promise constitutes the consideration on one side. That this technicality exists, is evident from the form of pleading on a contract, in which the party plaintiff must allege both a legal consideration and a legal promise, in order to maintain his action.1 The distinction tends to convey the erroneous impression that the party from whom the legal consideration moves may enforce his claim against the party promising to perform an illegal act, though the latter party cannot enforce the contract against the former. This, however, is an entire mistake. Every executory contract, the consideration of which is illegal on either side, is void; and neither party can found any claim upon it against the other party. If the contract be executed, however, that is, if the wrong be already done, the illegality of the consideration does not confer upon the party guilty of the wrong the right to renounce the contract; for the general rule is, that no man can take advantage of his own wrong; and the innocent party, therefore, is alone entitled to such a privilege.2 But if both parties be guilty, neither can ordinarily obtain relief on their contract, either at law or in equity. This rule is not, however, without modifications and exceptions; but before proceeding to
1 Powell on Cont. 176 (ed. 1790). 2 Taylor v. Weld, 5 Mass. 116. ' consider them, it becomes necessary to notice a position which has been supported by high authorities in the law.
§ 611. The general rule is, that where an illegal contract has been made, neither courts of law nor of equity will interpose to grant any relief to the parties, but will leave them where it finds them, if they have been equally cognizant of the illegality, - according to the maxim, "In pari delicto potior est conditio defendentis et possidentis." And the parties are in pari delicto if the plaintiff cannot make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was a party.1 Yet this rule is not without exceptions, which are allowed on the ground of public policy. An illegal contract will never, indeed, be enforced, if it be executory; but if it be executed, in despite of a statute or rule of public policy prohibiting it, relief will often be granted in equity, not only by setting aside the agreement, but by ordering a repayment of money paid under it. But relief will never be granted where the parties are in pari delicto, unless in cases where public policy would be thereby promoted; for it is not the benefit of the party, but of the public, that is regarded. And at law, where money is paid on an illegal agreement, it may be recovered before the execution of the agreement, but not afterwards.2
§ 612. It was maintained by Blackstone, where an act, not immoral in itself, is either enjoined or prohibited by statute, and the rule is enforced by the annexation of a pecuniary penalty to the transgression thereof, that there is nothing intrinsically immoral or illegal in the infringement thereof, provided, that the prescribed penalty, which he considered in the nature of an alternative rather than a punishment, be duly paid.3 Hence arose a distinction, which was repeatedly takers and promoters of the illegality, but will leave them where it finds them; according to the maxim, In pari delicto potior est conditio defendentis et possidentis.1 But, in order that this rule should take full effect, one of two requisites must occur. First, the contract must have been malum in se, involving criminality or moral turpitude; or, second, if it be merely malum prohibitum, it should appear that the parties are in equal fault, in pari delicto, and that the contract is executed.
1 Taylor v. Chester, 10 B. & S. 237, 247, per Mellor, J. See also Simpson v. Bloss, 7 Taunt. 246; Fivaz v. Nicholls, 2 C. B. 501, 512, per TindAl, C. J.
2 Hastelow v. Jackson, 8B.&C. 221; M'Kinnell v. Robinson, 3 M. & W. 434; Bone v. Ekless, 5H.&N. 925 (1860).
3 1 Black. Comm. 58. "In relation to those laws, which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any mixture of moral guilt, annexing a penalty to non-compliance, here, I apprehend, conscience is no further concerned than affirmed in the courts, between mala prohibita and mala in se; the former being merely violations of statute provisions, involving no immorality, and considered as offences only because they were forbidden, while the latter were transgressions of the moral code, as well as of the legal code of duties.
§ 613. But this distinction has been long since abrogated, as utterly unsound, and every act is now considered to be illegal in itself which is expressly forbidden, either by statute or otherwise.1 Indeed, it is difficult to see the object of the penalty, unless it be interpreted as a prohibition of the offence; for, in any other view, taxation, rather than penal prohibition, would seem to be its aim, and any one might purchase a right to transgress the statute law. Lord Holt supports the doctrine that an agreement to do acts which are mala prohibita, is void, for want of consideration, "because," he says, "a penalty implies a prohibition; thence, no prohibitory words in the statute." Upon this reasoning, which seems to be conclusive, all the late decisions have been founded, and the rule is now perfectly established, that no agreement to do an act forbidden by statute, or to omit to do an act enjoined by statute is binding.2
§ 614. But although a contract is equally void, whether it be malum in se, or merely malum prohibitum; yet the position of the parties, as to their remedies, is not the same in both cases. The general rule is, that where an illegal contract has been made, neither a court of law nor of equity will interpose to grant relief to the parties thereto, if they have been equal parby directing a submission to the penalty, in case of our breach of those laws, etc. In these cases, the alternative is offered to every man: either abstain from this, or submit to such a penalty; and his conscience will be clear, whichever side of the alternative he thinks proper to embrace." "Lex pure pcenalis obligat tantum ad poenam non item ad culpam; lex poenalis mixta et ad culpam obligat et ad poenam." Sanderson de Oblig. Conscient. Prael. 8, § 17, 24.