1 Chiles v. Conley, 9 Dana, 385.
2 Jackson v. Ketchum, 8 Johns. 482; Jackson v. Andrews, 7 Wend. 152; Murray v. Ballou, 1 Johns. Ch. 573; Hawk. P. C. B. 1, ch. 27, tit. Champerty; Mowse v. Weavor, Moore, 655; 4 Kent, Comm. 449.
3 Harrington v. Long, 2 Myl. & K. 590, 592; Thallhimer v. Brincker-hoff, 3 Cow. 647; 2 Story, Eq. Jur. § 1050; Williams v. Protheroe, 5 Bing. 309.
4 Ante, § 376 e, et seq. See 2 Story, Eq. Jur. § 1041, and cases cited.
5 2 Story, Eq. Jur. § 1057; Ex parte South, 3 Swanst. 393; Wood v. Griffith, 1 Swanst. 56; Hartley v. Russell, 2 Sim. & Stu. 244; Williams v. Protheroe, 5 Bing. 309; Leslie v. Guthrie, 1 Bing. N. C. 697; Malcolm v. Charles worth, 1 Keen, 63; Spring v. South Car. Ins. Co., 8 Wheat. 268.
§ 718. No nation can be justly called upon actively to enforce all the municipal regulations of another nation; for this would be not only beyond the proper sphere of its duties, but would be an adoption of the foreign law. But, at least, it would seem desirable, that the law should not, by the enforcement of contracts, having for their object the infringement of a foreign law, afford opportunities, and multiply motives for acts, which are, at best, contrary to the private duty of the individual, and to the public right of the foreign nation. If the right of one nation to regulate its own commerce, by its own legislation, be recognized, - to enforce a contract, made anywhere, in violation of its legal provisions, is to attack its right, or at least, its power to carry that right into effect. And, therefore, when a wealthy and powerful nation enforces such contracts, it tyrannizes over the weaker. Such a principle tends to provoke retaliation, and retaliation generates a multitude of evils, and awakens bad passions, which interfere with the interests of both countries. Indeed, if it were carried to its ultimate results, it would create a national right of remonstrance, and even of war; but operating, as it does, only occasionally and secretly, and under the shadow of suspicion and immorality, it is productive of less practical evils in its results, but is not therefore the less repugnant to principle.
1 Cod. Lib. 2, tit. 3, § 6.
§ 719. There seems, in truth, to be no great difficulty in refusing to enforce a contract which is intended to violate the laws of another country upon the ground that the consideration is immoral. That it is the duty of every person in his intercourse with a foreign nation to conform to its laws is manifest; that it is a violation of his duty not to do so is a correlative proposition. In the discussion of these cases, therefore, the question, how far one nation is bound to observe the laws of another nation, need not be determined. There is an easier solution of all difficulty, lying in the question whether the contract be founded upon a sufficient consideration. If it be immoral, it is not, and therefore is void. Then the only question is, whether a violation of private duty is immoral. Besides, such contracts tend to familiarize the mind with fraud, and to weaken the force of legal obligation, and therefore should be rejected as void upon grounds of public policy. They are, in the quaint language of Lord Chief Justice Wilmot, contracts "to do that which is injurious to the community, and the reason why the common law says that such contracts are void, is for the public good. You shall not stipulate for iniquity."
§ 720. Whether the doctrine contended against would govern in every case in which a contract is in violation of the laws of another nation than that wherein it was made, seems to be doubtful. But there is one class, which embraces nearly all of the cases to which the principle applies,- namely, contracts in violation of the revenue laws of another country, - which is undoubtedly governed by this doctrine. The settled rule of law is, that no nation is bound to pay any regard to the revenue laws of another nation; and all contracts are treated as if such laws did not exist. This doctrine was first allowed by Lord Hardwicke, in a case where the plaintiff shipped, by the defendant, a quantity of gold from Portugal, in violation of the laws of Portugal by which such an importation was forbidden. The defendant refused to deliver the gold upon arriving at London, which was the port of destination; and it was held to be no objection to the contract that it was in respect of an unlawful trade.1 The grounds of this decision were, that the public necessity required the importation of bullion, and that, however it might be by the law of Portugal, by the law of England the trade was not only legal, but very much encouraged. So, also, where the plaintiff (being a Frenchman) sold to the defendant (a British subject) certain goods, and the defendant gave a bill of exchange therefor, which was sued in the Court of Exchequer in England, it was held that the plaintiff could recover.2 This doctrine,
1 Boucher v. Lawson, Cas. t. Hardwicke, 189. See also Planche v. Fletcher, 1 Doug. 252. In this case, the voyage was evidently connived at by France, and favored by the English policy, for the purpose of exporting French goods. See also Lever v. Fletcher, 1 Marsh. Ins. 58 to 61; Holman v. Johnson, 1 Cowp. 341; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Pena-luna, 4 T. R. 466; Randall v. Van Rensselaer, 1 Johns. 94; Lightfoot v. Tenant, 1 Bos. & Pul. 551; Story, Conn. Laws, § 257.
2 Pellecat v. Angell, 2 C. M. & R. 311. In this case, Lord Abinger said: "It is perfectly clear that where parties enter into a contract to contravene the laws of their own country, such a contract is void; but it is equally clear, from a long series of cases, that the subject of a foreign country is not bound to pay allegiance or respect to the revenue laws of this; except, indeed, that where he comes within the act of breaking them himself, he cannot recover here the fruits of that illegal act. But there is nothing illegal in merely knowing that the goods he sells are to be disposed of in contravention of the fiscal laws of another country. It would have been most unfortunate if it were so in this country, where, for many years, a most extensive foreign trade was carried on directly in contravention of the fiscal laws of several other states. The distinction is, where he takes an actual part in the illegal adventure, as in packing the goods in prohibited parcels or otherwise, there he must take the consequences of his own act; but it has never been said that merely selling to a party who means to violate the laws of his own country is a bad contract. If the position were true which is contended for on the part of the defendant, that this appears upon the plea to have been a contract for the express purpose of smuggling the goods, it would follow that it would be a breach of the contract if the goods were not smuggled; but nothing of the kind appears upon the plea; it only states a transaction which occurs about once a week in Paris; the plaintiff however, although firmly established by the whole weight of subsequent decisions, has been repeatedly and vehemently reprobated, as inconsistent with good faith, and repugnant to good morals. Nevertheless, it has found its advocates, and is defended by Valin and Emerigon;1 the latter for want of a sufficient reason, resorting to the poor excuse that smuggling is a vice common to all nations. Pothier, however, has decidedly condemned it, and he has been strongly seconded by many of the ablest writers.2 sold the goods, the defendant might smuggle them if he liked, or he might change his mind the next day; it does not at all import a contract of which the smuggling was an essential part." See Kohn v. Schooner Renaisance, 5 La. Ann. 25.