Enoch S. Hill v. John Smith and others. the time this instrument was executed, declares "that all contracts, promises, assumpsits or undertakings, either written or verbal, which shall hereafter be made in good faith, and without fraud, collusion or circumvention, for the sale, purchase, or payment of improvements made on the lands owned by the government of the United States, shall be deemed valid in law, or equity, and may be sued for and recovered as in other contracts." Laws of 1836, p. 23. If this statute is of any validity, it closes the door to all further controversy, in relation to this matter. But this act is said to be of no force and effect, being in contravention of an existing paramount law of the United States. The law here referred to is the act of March 3, 1807, entitled "An act to prevent settlements being made on lands ceded to the United States until authorized by law." Admitting that this act altogether prohibits any settlement upon the public domain, and that it was in full force at the date of the instrument on which this suit was brought, we consider it by no means conclusive against the plaintiff's right to a recovery. As a general rule, illegality in the consideration will prevent the enforcement of any contract, even though, as in the present case, it be under seal. This is a salutary principle, but who will contend that it is absolutely inflexible? Is it beyond the power of legislation to modify or abridge the rule, or even to abolish it altogether? Is it surrounded with all that sacred inviolability, which so justly attaches to a constitutional provision? Suppose the public welfare should require an innovation upon this rule, is it placed beyond the reach of legal enactments? We have never heard such an idea advanced, and we consider it entirely within the province of the legislature, when they deem it expedient, to render all notes, whether sealed or unsealed, collectible, whatever might have been the consideration therefor. What they could thus accomplish in the aggregate, they may certainly do in the detail. They Enoch S. Hill v. John Smith and others. may, therefore, declare that a certain species of illegality in the consideration shall not so vitiate a written instrument, as to prevent a recovery thereon. The act of 1836, has at least had this effect. If prior to that statute the sale of improvements on the public lands was an illegal consideration, the law has at least prevented the defendant from setting up that species of illegality for the purpose of defeating the plaintiff's action. There were excellent reasons for such a legislative interposition. *At the time this law was passed *73 there were more than ten thousand inhabitants within the present limits of this territory (then a part of Wisconsin) residing on the lands of the United States, and daily dealing in what were denominated "claims," or the settler's rights to those lands. Public policy dictated that there should be some better sanction to enforce the observance of their contracts, than the bludgeon or the rifle. The legislature therefore declared, that such contracts should be under the peaceful sway of the civil magistrate, rather than that the whole country should be overwhelmed with the miseries of violence and anarchy. We believe that in so doing they were not only promoting the public welfare, but that they were acting entirely within their legitimate province, and that the law therefore, for this purpose, is valid and binding. But does the act of 1807 prohibit the sale of improvements on public lands, in such a manner as to render all such contracts illegal? It provides "that if any person or persons shall, after the passing of this act, take possession of, or make a settlement on, any lands ceded or secured to the United States by any treaty made with a foreign nation, or by a cession from any state to the United States, which lands shall not have been previously sold, ceded, or leased by the United States, or the claim to which lands, by such person or persons, shall not have been previously recognized and confirmed by the United States; or if any Enoch S. Hill v. John Smith and others. person or persons shall cause such lands to be thus occupied, taken possession of, or settled, or shall survey or attempt to survey, or cause to be surveyed any such lands, or designate any boundaries thereon by marking trees or otherwise, until thereto duly authorized by law, such offender or offenders shall forfeit all his or their right, title, or claim, if any he hath or they have, of whatsoever nature or kind the same shall or may be, to the lands aforesaid, which he or they shall have taken possesion of or settled, or caused to be occupied, taken possession of, or settled, or, which he or they shall have surveyed, or attempted to survey, or caused to be surveyed, the boundaries thereof, he or they shall have designated or caused to be designated by marking trees or otherwise. And it shall moreover be lawful for the president of the United States to direct the marshal or officer acting as marshal in the manner hereinafter directed, as also to take such other measures and to employ such military force as he may judge necessary and proper, to remove from lands ceded or secured to the United States, by treaty or cession as aforesaid, any person or persons who shall hereafter take possession of the same, or make or attempt to make a settlement *74 thereon, until thereunto *authorized by law. And ev ery right, title, or claim, forfeited under this act, shall be taken and deemed to be vested in the United States, without any other or further proceedings." who have pre The act then goes on to authorize persons viously settled on the public lands, to remain, upon complying with certain conditions therein prescribed, and concludes by declaring it lawful for the proper marshal, under the instructions of the president, to remove any person not thus authorized to remain. Three months notice is to be given prior to such removal, and any person found thereon after the expiration of that time, incurs thereby a penalty of $100 and is liable to imprisonment, at the discretion of the Court, for any term not exceeding six months. Laws U. S. vol. 4, page 118. Enoch S. Hill v. John Smith and others. It will be observed that this statute does not in express terms prohibit the settlement and occupancy of the public lands, but merely declares that such trespasser shall forfeit his rights, &c., that the president shall have power to direct his removal, and that after that power has been exerted, and the requisite notice given, a further penalty is inflicted on the transgressor. It may well be questioned, whether this law, if in full force, would invalidate a contract for the sale of improvements on public lands, even without the aid of our statute. We are not now inquiring whether such a sale would constitute a valid consideration, but whether, even if there had been in other respects a good and valuable consideration, the contract is, notwithstanding, so vitiated as to be rendered absolutely null and void. Upon this point many decisions will be found in the reports of almost every Court. In the case of Fox v. Abel, 2 Conn. Rep. 548 it was decided that a note given on Sunday was void, because the statute of that state prohibited all secular business on that day. But in Massachusetts, where the law fixes a penalty for the transaction of such business on that day, such notes have been held valid. Geer v. Putnam, 10 Mass. 312. It has also been decided in England, that where a fair was held on Sunday the sales were not void, although there was a penalty on the party selling on that day. Comyns v. Boyer, Cro. Eliz. 485. And in the case of Gremore v. Le Clerc Bois Vallon, 2 Camp. 144, the Court held that a person unauthorized to practice as a surgeon, might maintain an action for services in that capacity, although by law such a person was liable to a penalty of five pounds per month for *performing those very services, the *75 act containing no prohibitory clause." The case of Wheeler v. Russel, 17 Mass. 257, has been particularly referred to by the counsel for the plaintiff in error. That was an action upon a promissory note, given Enoch S. Hill v. John Smith and others. for shingles sold in contravention of the statute of that state. From the report of the case it would seem that, although the penalty of forfeiture was, by law of that state, attached to any sale of shingles which were not of statutory dimensions, or which had not been surveyed, the statute went further and absolutely prohibited such sale. In the Springfield Bank v. Merrick et al. 14 Mass. 322, a note was declared void which had been given in violation of the statute of that state prohibiting any banking company from loaning or negotiating any notes of unincorporated banking companies, under a penalty of $1000. This may appear somewhat at variance with the general current of the authorities above quoted, but the reasons of that descision seem to have been drawn, in a very great degree, from the fact that the general intention of the statute was to prohibit the banks from loaning or dealing in the notes of unincorporated banking companies, that such traffic was contrary to the policy and object of the law, and the contract was, therefore, void for illegality. The rule to be drawn from these cases therefore, appears to be, that where an act is absolutely prohibited by statute, or is contrary to public policy, all notes, &c., given in furtherance of that act, are null and void; but where the statute fixes a mere penalty, contracts in relation to matters which subject the maker to that penalty are not on that account invalidated. Where not intrinsically wrong, the individual is permitted to perform the act upon the payment of the penalty. This is a species of license money, exacted for the privilege of doing a certain thing, but the act is not otherwise unlawful unless expressly declared so. This seems to correspond with the views of the great English commentator in relation to actions that are merely mala prohibita. 1 Black. Com. 57. Applying this rule, therefore, to the present case, there is nothing in the sale of improvements on the public lands. which, independant of the statute, should render the con |