Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1854-12-01

cable to the case before us, that we give it in
the words of the court. They are as follows
"Some doubts have been thrown out whether
as the charter speaks only Of taking, ii can
apply to case in which the interest has
been only reserved, not received. But on that
point the majority of the court are clearly OF
opinion that TeserviRg must be implied in the
word taking, since it cannot be permitted by
law to stipulate for the reservation of that
which it is not permitted to receive, Hawk,
p. G. $40. In those instances in which courts
are called upon to inhict penalty upon the
lender, whether in civil or criminal form of
action, it is necessarily otherwise, for then the
actual receipt is generally necessary to con-
summate the offence. But when the restrictive
policy Of a law alone is in contemplation, we
hold it to be an universal rule that it is unlaw-
full to contract to do that which it is unlawful
to do" And after deciding this point and re-
marking briefly on the manner in which it came
before the court, they proceed to say
To understand the gist of the question it is
necessary to observe that, although the act of
incorporation forbids the taking Of greater in
terest than six per cent, it does not declare
void any contract reserving greater sum than
is permitted. Most, if not all, Of the acts
passed in England, and in the States on the
same subject declare such contracts usurious
and void.
"The question, then, is, whether such con-
tracts are void In law upon general princi-
pies.
The answer would seem to be plain and
obvious that no court of justice can in its ma
ture be made the hand-maid of iniquity. Courts
are instituted to carry into effect the laws of a
country. How can they, then, become auxili-
airy to the contamination of violation of law?
To enumerate how all the instances and cases
in which this reasoning has been practically
applied would be to incur the imputation Of
vain parade.
There can be no civil right where there is
no legal remedy, and there can be no legal
remedy for that which is itself Illegal"
We forbear to quote further from the lam
guage of the Supreme Court, and it is sufficient
to say that after having stated the principles of
law in the manner set forth in the foregoing
extract from the opinion, it proceeds to refer
to many adjudged cases in support of the doc
trine, showing that it applied to all cases where
the act was prohibited by statute, although
there was nothing morally wrong in the trans
action. And upon this ground decided that
the Bank could not maintain an action on the
note, as the demurrer admitted that it had
been discounted upon an agreement to take
more than six per cent. interest. We do not
see how the case before us can be distinguished
from the one decided by the supreme court.
They present precisely the same question, and
the established principles of law which decided
the enc in favor Of the defendant must decide
the other in like manner.
1t will be observed, also, that the opinion we
have quoted points out clearly the distinction
between statute merely forbidding an act to
be done, and one imposing forfeiture or PEN
atty for doing 1t, and is, in effect an answer to
that part of the arrangement on the part of the
plaintiff, which relied on the last words Of the
section Of the Constitution, requiring the legis-
lature to impose forfeitures and penalties
against usury.
The absence of any provision inficting a
penalty (say the Supreme Court does not give
the party a right to maintain an action on the
contract, if the law forbids the contract to be
made. And the reason Of the rule thus laid
down is that the contract being forbidden, the
party can acquire no legal rights under it, and,
consequently, cannot maintain an action in a
court of justice to enforce it. His incapacity
to maintain an action upon it is no forfeiture
or penalty, for he acquires no rights under it
and therefore there is nothing to forfeit The
money he loans is not forfeited, for if he chooses
to rely upon the promise Of the borrower and
the borrower repays him the money he may
lawfully keep it 1t is not forfeited TO the State
or to any one else. But court Of justice can
not lend its aid 10 recover il, because the con-
tract for the loan is one entire thing, and con-
sequently is altogether valid or void, and it
would be contrary to the duty. of court OF
justice to assist party in concentrating
an act which the law forbids. The absence
of any penalty, therefore, is no argument
in support of this action. But in this case
there is something more than the absence of
penalties and forfeitures. II is made the duty
of the Legislature to inflict them, and the pro-
hibitory clause Of the constitution must be con.
strued now in the same manner, and have the
same effect as il the Legislature had performed
the duty enjoined upon it. 1t is true no PEN
atty or forfeiture is incurred until the Legisla-
ture shall prescribe it. Bat when that duty
shall have been performed (be the penalty
more or less) nobody, we presume, would con-
tend that an action could still be maintained
on the contract upon payment Of the penalty.
And the act Of no future legislation can alter
the meaning Of the words used in the Consttu-
ton. They remain the same, and must al
ways be construed and administered in courts
Of justice according TO their legal import as
they stand in that instrument, whether future
legislatures do or do not obey its mandates,
and pass laws to enforce its provisions. II fol-
lows from what we have said that the first four
sections Of the act OF l845 are no longer in
force. These sections made an usurious con-
tract legal for the amount actually loaned, and
authorizes the lender to recover the amount
with six per cent. interest. II makes il void
only so far as the usurious interest is con-
cerned, and as a necessary consequence Of this
provision il repealed expressly the third section
Of the act Of 1904.
The act Of 1916 does not, therefore, prohibit
an usurious contract, but sanctions and sup
ports it 10 the extent above mentioned. The
Constitution, on the contrary, by the prohibit
ing words used in il, makes the whole contract
illegal, and thereby incapacitates the party
from maintaining suit upon it, for the money
he actually loaned, or any part Of II; and more
over treats the taking or demanding more than
six per cent. as an offence, and commands the
Legislature to provide penalties and forfeitures
agains, it. The provisions Of this act Of Assem-.
bly, and those contained in the Constitution are
consequently inconsistent with each other, and
the former is repealed. In relation to the act
of l704 the plaintiff claims nothing under IT,