ment which, by the law under which it was made, was invalid, would seem to be now so conclusively determined as not any longer to be the subject of discussion. The right has been affirmed in a great variety of cases, and the argument that, in validating the invalid agreement, the legislature is in effect making for the parties a contract where no contract existed before, has almost invariably been put aside as unsound. The legislature, it is said, is only furthering the apparent design and purpose of the parties when it removes the statutory impediment to the validity of their arrangements, and gives them legal effect. It can wrong no one to remove a legal bar to the accomplishment of that which he has attempted.

A leading case on this point was that in which the Supreme Court of Pennsylvania affirmed the right of the legislature to validate one of the Connecticut leases of land in that Commonwealth, which the courts had previously declared, as a result of state legislation on the subject, were void, and could not create the relation of landlord and tenant. The legislature subsequently, by declaratory act, affirmed the validity of such leases, and of the relation of landlord and tenant under them. This presented very squarely the question of legislative power, which is above suggested, and it was squarely met by the court in an able opinion, often since that time followed in that and other states.'3 In this case the legislation was attacked as destructive of vested rights, and as violating the obligation of contracts. It certainly violated no vested rights, unless an inequitable defence could be held to be one, for a defence against a fair contract must always, so far as the party himself is concerned, be inequitable. Neither did it violate the obligation of contracts.

13 Satterlee v. Mathewson, 16 S. & R. 169. For other Pennsylvania cases affirming the same principle see Walton's Lessee v. Bailey, 1 Binn. 477; Haas v. Wentz, 4 S. & R. 361; Underwood v. Lilly, 10 S. & R. 101; Barnet v. Barnet, 15 S. & R. 72; Tate v. Stooltzfoos, 16 S. & R. 35; Bleakney v. Bank of Greencastle, 17 S. & R. 64; Menges v. Wertman, 1 Penn. St. 218; Journeay v. Gibson, 56 Penn. St. 57.

14 See Foster v. Essex Bank, 16 Mass. 245; Welch v. Wordsworth, 30 Conn. 149.

Its purpose, on the other hand, was to perfect the contract and do away with the difficulty in its enforcement.15 We cannot give the facts of other cases, many of which are equally strong and pointed; nor is it at all necessary when the principle is so firmly settled. Some further cases affirming it are given in the note.16

In all these cases it is to be understood that the statute not only removes the legal impediment which before existed to a lawful contract, but it expressly assumes to validate the contracts attempted before. The question, therefore, does not arise on a mere repealing statute, and, consequently, the cases do not conflict with what has above been said that a repealing statute leaves previous invalid arrangements in the same state of invalidity in' which it found them. But this is not a necessary result; the legislature may retrospectively affirm that which would have been valid but for the statute repealed, provided that, in express terms, they declare their purpose to that effect. There are, indeed, certain limitations upon their power; it is generally conceded that they cannot retrospectively, by their affirmance of a contract, divest rights which have been acquired in reliance upon its invalidity; nor could they validate a contract obtained by fraud or duress, or from an insane person. 18 These are very plain exceptions to the general power; they rest upon

15 Satterlee v. Mathewson, 2 Pet. 380. See Watson v. Mercer, 8 Pet. 88; Carpenter v. Pennsylvania, 17 How. 456.

16 Lewis v. McElvain, 16 Ohio, 347; Johnson v. Bentley, ibid. 97; Chestnut v. Shane's Lessee, 16 Ohio, 599; Trustees v. McCaughy, 2 Ohio N. S. 152; Goshen v. Stonington, 4 Conn. 209; Beach v. Walker, 6 Conn. 190; Norton v. Pettibone, 7 Conn. 319; Savings Bank v. Allen, 28 Conn. 97; Bass v. Columbus, 30 Geo. 845; Winchester v. Corina, 55 Me. 9; Andrews v. Russell, 7 Blackf. 474; Grimes v. Doe, 8 Blackf. 371; Maxey v. Wise, 25 Ind. 1; Boyce v. Sinclair, 3 Bush, 264; Payne v. Treadwell, 16 Cal. 220; Deutzel v. Waldie, 30 Cal. 138; Sticknoth's Estate, 7 Nev. 227; Harris v. Rutledge, 19 Iowa, 389; Gibson v. Hibbard, 13 Mich. 215; State v. Norwood, 12 Md. 195.

17 Greenough v. Greenough, 11 Penn. St. 489; Southard v. Railroad Co., 2 Dutch. 22; Brinton v. Seevers, 12 Iowa, 389; Sherwood v. Fleming, 25 Texas, 408; State v. Warren, 28 Md. 338.

18 White Mountains R. R. Co. v. White Mountains R. R. Co. of N. H., N. H. 50; Routsong v. Wolf, 35 Mo. 174.

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rules of right, the force of which is universally felt and conceded. The contract of a married woman, however, or of an infant, entered into after he had arrived at an age when only the statutory impediment could stand in the way of his acting independently, might, as we think, be validated.19

What has above been said is applicable not only to cases of contracts forbidden, and to those which have been executed by parties while laboring under legal disabilities, but also to contracts which are required to be made under particular formalities, and are invalid because the formalities are not complied with.

4. Cases in which a Change in the Policy of the Law might Affect Contracts.-The cases are numerous in which contracts are held to be invalid because they contravene some general policy of the state. This policy may be declared or established by statute, or it may result from the common law as it is accepted and enforced in the state. It is now a rule of general acceptance that, whenever a thing is forbidden by statute, it is illegal to do it, and any contract having in view to circumvent and defeat the purpose of the statute is also illegal, and, therefore, void.20 Nor need the prohibition be direct; it is sufficient that the statute has in view a purpose which it undertakes to accomplish, and that the contract is either designed to defeat that purpose, or will tend naturally to do so." Therefore a contract, the object of which is to evade the revenue laws of the country, or a contract originating in a business transaction on Sunday, when such transactions are forbidden, are as much void when not directly so declared as when they are.22 And the

19 See Chestnut v. Shane's Lessee, 16 Ohio, 599; Goshorn v. Purcell, 11 Ohio N. S. 641; Dulany's Lessee v. Tilghman, 6 G. & J. 461; Walton's Lessee v. Bailey, 1 Binn. 477; Journeay v. Gibson, 56 Penn. St. 57.

20 Bartlett v. Vinor, Carth. 252; s. c., Skinner, 322; Drury v. Defontaine, 1 Taunt. 136; Fowler v. Scully, 72 Penn. St. 456; 1 Pars. on Cont. 457-459. 21 O'Hara v. Carpenter, 23 Mich. 410.

22

2 Pars. on Cont. 753, 757, and cases cited. There are, of course, exceptions to this as to all other rules. If a statute imposes a penalty for the doing of a certain act, and it seems to be the intention, in passing it, that the payment of the penalty shall be the sole liability for the doing of such act, the act itself may be valid. Pangborn v. Westlake, 36 Iowa, 546.

rule is the same where the infirmity in the contract is because of its contravening some general principle of the common law. An immoral contract, a contract which tends to corrupt legislation, a contract in general restraint of marriage, a champertous contract-all these are incapable of enforcement for the reason above assigned.23 And as such contracts would be unlawful in their inception, it is not believed that a statutory change in the policy of the state, effected by legislation after such contracts had been entered into, would render them susceptible of enforcement. If they were not contracts when the legislation was enacted, doing away with the cause of the invalidity would not impart life to them. The cause had accomplished the mischief before. The repeal of a statute of limitations does not revive a cause of action previously barred by it, and the principle would seem to apply in all cases where an agreement of parties is, for any reason, incapable of enforcement. If originally invalid, it is not called into existence as an effective engagement by removing, ex post facto, that which precluded its being formed; if once valid, and afterwards put an end to, it cannot be revived by removing that which had destroyed it.

But the question might still remain, whether an express legislative recognition of contracts, originally invalid for repugnancy to some rule of public policy, might not give them legal force? Suppose, for example, a contract void because in restraint of trade; what principle should preclude its being retrospectively validated, that would not be equally applicable to a contract invalid because expressly prohibited by law? In either case the legislature would be giving effect to the manifest purpose of the parties, in entering into the agreement, by removing the impediment which they had encountered. Indeed, the reasons for interference would commonly be stronger in those cases than in the case of contracts rendered invalid by statute; for public policy, in its application to contracts, is not always so clear and distinct as to apprise parties with reasonable certainty what compacts they may, and what they may not, make; and 23 Pothier on Obligations, 1–9; 2 Pars. on Cont. 747.

those which are entered into in perfect good faith are sometimes held invalid because opposed to a public policy which the parties themselves failed to comprehend. The illustration of contracts in restraint of trade is very pertinent here. It is utterly impossible for any one to determine at this time, from the reported cases, how far the old common law on this subject is now in force. That it is greatly modified, in the changed circumstances of this country, may be safely affirmed in the light of the most recent decisions; 24 and it would seem not only an act warranted by law, but by sound reason and good morals, to put at rest the questions relating to such contracts as far as possible-not only for the future, but for existing arrangements also. If it is allowable to validate a contract which the statute at the time would not sanction, still more certainly ought it to be to affirm one only forbidden by some vague and uncertain rule of public policy, respecting the existence of which even an expert might reasonably be in doubt. Indeed, where the policy itself had been growing fainter and more uncertain in the lapse of time, as it has in the case referred to, until even the courts are in doubt whether it should be recognized at all, a legislative declaration that it should no longer be recognized might possibly be held to be evidence that the policy itself had previously disappeared, so that courts might feel at liberty to enforce previous contracts entered into in good faith, and which, if made since the legislation, would be plainly and unmistakably legal.

The repeal of a law which forbade certain contracts might possibly raise questions of the right to recover back that which had been paid upon, or received in consideration thereof. If a contract is illegal, and something has been given for or done under it, the general rule of law is that the courts. will not interfere to aid either party. If they have engaged in an unlawful negotiation, and one has suffered in consequence, the law will not undertake to relieve. The law cannot concern itself with a settlement of equities growing out

24 Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64; Schwalm v. Holmes, 49 Cal. 665; Beal v. Chase, 31 Mich. 490.