By the Court
Mason Ch. JusThis was an action of debt brought upon a single bill or sealed note, of which the following is a copy:
“$1000 Burlington, Jan.23,1837.
Twelve months after date I promise to pay to John Smith and Brothers, or order, one thousand dollars, for value received. Witness my hand and seal as above written. E. S. Hill. (Seal.,)”
The defendant pleaded non estfactum with notice of special matter under the statute. By mutual consent .the cause was submitted to the court below upon the following, facts. See the agreed statement of facts above.
The Court below rendered a judgment in favor of the plaintiff for $1000 debt and $63 83 damages, upon which the defendant brought his writ of error to obtain a reversal of that judgment, and assigned the following errors.
First. The said 'writing obligatory in the plaintiff's said declaration mentioned,, was given for a contract for ths purchase of a claim to a tract of the United States lands, with the improvements thereon, in violation of the provisions of the several acts of Congress upon that subject made and provided.
*21Secondly. Because the whole contract for which the said writing obligatory was given, is contrary to the laws of the United States and is therefore void.
The statute of Wisconsin, which was in full force here at 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, pagi 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 the 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 ease, 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) collectable, whatever might have been the consideration therefor. What they could thus accomplish in the aggregrate, they may certainly do in the detail. They 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, there were more than ten thousand inhabitants with-' in 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 settlers’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 nurseries of violence and anarchy. We believe that in so doing they were not only promoting the-public welfare, but that thpy 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 the public *22lands m 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 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 and claim, if any he hath or they have, of whatever nature or kind the same shall or may be, to the lands aforesaid, which he or they shall have-taken possession of or settled, or Which he or they shall havé surveyed or attempted to survey or caused to be surveyed, or the boundaries whereof 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 dire.ct the Marshal or officer acting as Marshalin the manner hereinafter directed, and 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 Slates 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 thereon until thereunto authorized by law. And every right, title or claim forfeited under this act shall be taken and deemed to be vested in the United States without any ocher or further proceeding.”
The act then goes on to authorize persons who had previously settled on the public lands, to remain upon complying with certain conditions therein prescribed, and concluded by declaring it lawful for the proper marshal under the instruction of the President to remove any persons net thus authorized to. remain. Three months notice is tobe 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 of U. S., vol. 4, page 118.
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. We are not now inquiring whether such a sale would constitute a valid consideration, but whe ther, 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 vs. 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 *23for the transaction of such business on that day such notes have been held valid. Geer vs. Putnam, 10 Mass. R. 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 vs. Boyer, Cro. Eliz. 485. And in me case of Gremore vs. Le Clarc Bois Vallan, 2 Camp. 144, the Court held that a person unauthorized to practice as asurgeon might maintain an action for services in that capacity al-. though bylaw such a person was liable to a penalty of £5 per month for performing those very services, “the act containing no prohibitory clause.”
The case of Wheeler vs. Russel, 17 Mass. R. 257, has been particularly referred to by theCouncil for thG plaintiffin error. That was an action upon a promissory note given for shingles sold in contravention of the statute of that State. From the report of that case, it would seem that although the penalty of forfeiture was 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 vs. Merrick, 14 Mass. R. 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 $1-000. This may appear somewhat at variance with the general current of the authorities above quoted, but the reasons of that decision seem to have been drawn in a very greát 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 seems to be that where an act is absolutely prohibited by statute, or is contrary to public policy, all notes &e. given in furtherance of the execution- of that act are absolutely 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 pro-hibita. 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, independent of the statute, should render the contract void for illegality. He must be a bold man who would assert that the occupancy of the public lands in the manner practised in the settlement of this territory was in itself contrary to good morals or public policy. At the worst then it is merely a case of mglum prohibitum, an instance more-, over wherein the law has not absolutely forbidden the act, but has merely attached a penalty to its performance. Subject to this penalty any person has the same right to occupy or traffic in the public lands as though that statute had not been passed. If that had been the case the sale of improvements thereou should at most be regarded in the same light as the ordinary sale of property to which the vendor had no title. This might constitute a defence where want *24of consideration would be sufficient, but where no fraud or deception had been practised would never render the instrument now before us invalid.
• But the act of Congress of 180.7 seems to have been intended merely to prevent the acquirement of title by occupancy and to authorise the removal of intruders in those cases where public policy should require; but never to disturb the peaceable and industrious husbandman, whose labor was adding so much to the public wealth, changing the barren wilderness into fertile fields, an,d calling into almost magic existence whole States and Territories, whose prosperity and power are constantly adding so much to the strength and glory of the nation.
But even if that act was originally intended to prevent entirely all settlements on the public lands, and if under such circumstances territorial legislation would have been wholly incompetent to render notes &c. collectable which had been given in furtherance of objects illegal under that statute, there is still another matter of serious importance to be considered. Is that law for these purposes still in operation?
The act in question was passed in 1807, and it is a matter of public history that since that period it has never been exercised to prevent the ordinary settlement of the public lands. The cases wherein the President has availed himself of the powers therein conferred have all been special, as where trespassers were committing waste without the design- of making a settlement or otherwise enhancing the value of the land. Nay so far from discountenancing such settlements, special encouragements thereto have been offered. In numerous instances rewards have been conferred by acts of Congress on those who had taken possession of, cultivated and trafficked in the public domain. The many pre-emption laws which have been passed from time to time have all given a recompense to those who had settled upon and improved these lands. Some of these too have recognized the validity of contracts previously made between landlords and tenants which would have been equally void for illegality as any other contracts growing out of these alleged trespasses.
But farther than this, governments have been organized by acts of Congress for the express benefit of a community of criminals, (agreeably to the notions of the counsel for the plaintifFin error) the effect and evident intention of which was to encourage and facilitate their illicit conduct and purposes. It is notorious that when this territory was organized not one foot of its soil had ever been sold by the United States, and but a trifling portion of it (the half breed tract) was individual property. Were.we a community of trespassers, er were we to be regarded rather as occupying and improving the lands of the government by the invitation and for the benefit of the owner? Were we organized as a colony of malefactors, or shall we not rather absolve the federal government from the charge of such stupendous folly aud wanton wickedness ?
Let us suppose that the next week after our territorial organization the President had directed the marshal to remove with the least possible delay the whole of our twenty five thousand people, (excepting the few settlers on the halfbreed lands, and the still fewer who would have been entitled to remain by virtue of pre-emption privileges,) ought such a command to have been obeyed? We do not ask what would have been the determination of our settlers, but what would the strictest duty have demanded of them ? We have no hesitation in saying that such a command would have been altogether illegal, and ought not to have been obeyed.
*25To make this appear still more evident let us further suppose that the requisite notice to quit having been given and disobeyed, the offenders were brought before the proper courts for trial. To say nothing of the utter impracticability of executing such a law, would the courts be justified in giving it efficacy? If jurors could be obtained who would find the accused guilty, should the judge proceed to pass sentence ? If so, the great mass of our citizens must be fined $100 each, and might, in addition, be hurried off to prison for the period of six months. And for what? For violating a law, of which the great majority knew not the existence — a law which has lain unexerted for such a purpose during more than thirty years, and ever since its enactment. Would this be in accordance with the intention of the legislature ? If so, the law was intended as a snare. Allurements of -the most enticing kind were freely employed to decoy the unsuspecting and the innoeent within its reach. Its position and character were concealed by the dust and rubbish of a third of a century. The broad and beaten path of custom leading directly across it had obliterated every apparent vestige of its existence. Suddenly, and when thousands are within its reach, the net is sprung and they are enfolded in its treacherous toils. Whole communities of unoffending citizens find themselves liable to heavy amercements and long incarceration for doing acts which they had every reason to believe would be deemed patriotic and praiseworthy;; for leading the way in the introduction of wealth and civilization and happiness into the alpiost illimitable west; for sacrificing the comforts and endearments of home, and enduring the hardships and privations and encountering the diseases of a new and untried country; for building up great communities in the wilderness, enlarging our bounds of empire, and vastly augmenting the current of our national revenue. For doing these acts, which have redounded so much to the national advantage; — done to in accordance with the almost express invitatiou of the national legislature, and when encouragement to western emigration had become a part of our settled national policy, these individuals, where they had every reason to expect rewards, nay while on the one hand they are actually receiving sueh rewards, they feel themselves on the other condemned to severe and even ignominious punishment. Does the spirit of our institutions justify such stupendous deception and wholesale tyranny. We answer emphatically, No.
History furnishes us with a parallel example, and one which it may be prof' itable to contemplate for a moment. Henry the Seventh of England, in order to replenish his treasury had recourse to a measure which (in order that the plaintiff in error should succeed) must be legitimate here. Availing himself of the services of two judges — the supple instruments of his tyranny, he caused a general system of prosecutions to be instituted upon penal statutes which had never been repealed, but which by long disuse had become forgotten and wholly disregarded. Empson and Dudley, when afterwards brought to trial for their share in these transactions pleaded “ that it belonged not to them who were instruments in the hands of Supreme power, to determine what laws were recent or obsolete, expedient or hurtful, since they were all alike valid so long as they remained nnrepealed by the legislature.” But this plea neither availed them with their judges nor with posterity. They were consigned to dishonored graves, and their memories have ever since been coupled with judicial infamy.
*26It is true that public opinion would frequently be a very unsafe guide for a judicial decision. The fluctuating feelings of the multitude frequently operated upon by momentary excitement by prejudice or by caprice, would very improperly be adopted as the standard of truth or sound reason. But where the same opinions are concurred in for centuries, and after passion and prejudice have wholly subsided, such opinions are always founded in truth and justice, and can more safely be followed than those of the most learned and able judges.
Fortified by this authority, we pronounce it contrary to the spirit of that Anglo Saxon liberty which we inherit, to revive without notice an obsolete statute, one in relation to which long disuse and a contrary policy had induced a reasonable belief that it was no longer in force. If custom can make laws, it can, when long acquiesced in, recognized'and countenanced by the sovereign power, also repeal them. Such has been the case in (he example now before us. We feel therefore justified in declaringthat the act of March 3, 1807, so far as it would have gone to authorize the removal of the inhabitants of this Territory or their punishment as criminals is wholly inoperative and void— that it has been repealed by long non user, by the enactment of other and irre-concileable statutes, by the establishment of an opposite policy, and by the legislative recognition of wide spread and long established customs among the people of the West which are wholly incompatible with such an operation of this statute. If this measure can be sanctioned, then is there nothing to prevent Congress from laying these snares by premeditation and beguiling the unwary by thousands with the express design of filling the coffers of the public treasury — thus introduciug into this republic a practice which forms one of the darkest stains on the character of one of the most arbitrary and unscrupulous of English tyrants. Courts of justice can never become accomplices in such a project.
We have thus given our views at length in relation to this subject. From .the fact that the cause was submitted without argument upon a mere reference to authorities, we. may not have met satisfactorily all the view's which the counsel tor the plaintiff in error would have taken of the case. But we can conceive of no course of reasoning which would have justified a different decision.
The judgment below will therefore be affirmed.