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and therefore repeals all laws permitting them to be imported upon condition.

This court, adhering to its former decisions, cannot regard these sections as repealed, because, if the constitution did not prohibit their introduction from the 1st day of May, 1833, the law which specified the conditions upon which they might be imported and sold remained in full force.

The language of these sections is :-"It shall not be lawful for any person or persons to import in to this State, from any of the United States, or the Territories thereof, as merchandise, any slave or slaves, either negro or mu[*701 latto, or of any other description whatever, above the age of fifteen years, without having previously obtained a certificate, signed by two respectable freeholders in the county of the State or Territory from whence such slave or slaves is or are brought; which certificate shall contain a particular description of the stature and complexion of such slave or slaves, together with the name, age, and sex of the same; and, furthermore, that the slave or slaves therein mentioned and described have not been guilty of murder, burglary, arson, or other felony, within their knowledge or belief, in such State or Territory; which certificate shall be signed or acknowledged before the clerk of the county of the State or Territory where the same is given and certified by said clerk, specifying therein that the persons whose signatures are affixed thereto are respectable freeholders of the county and neighbourhood in which they reside.

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Any person, who shall sell any slave or slaves brought into this State as merchandise, shall cause to be registered with the register of the Orphan's Court of the county where such slave or slaves are, or are first sold, every certificate as aforesaid, the seller previously swearing that he believes the contents of such certificate or certificates to be just and true; which oath said register is hereby authorized and required to administer; for which service he shall receive the sum of one dollar for each certificate so registered." (See How. and Hutch. Digest, 156, and Hutchinson's Mississippi Code, 513.) The sixth section of the act imposes a penalty of $100 for every slave sold without a compliance with the said fourth and fifth sections, recoverable in any court of competent jurisdiction.

The facts stated in this plea are confessed on the record. The judgment of the court for the defendant is general.

This court will inspect the entire record, and give judgment for that party who may appear to be entitled to it; and if the plea interpose a good defence to the action, the judgment of

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the court below, according to familiar principles, will not be disturbed.

The counsel on the other side assumes, that, even if this were so, the defence disclosed by that plea is not a valid one; and he refers to a variety of cases for the purpose of sustaining that position.

The first of these is that of Armstrong v. Toler, from 11 Wheaton, which, as it is understood by me, cannot be tortured into an authority for the plaintiff. On the contrary, it decides, that, where a contract grows out of an illegal act, a court of justice will not lend its aid to enforce it. The selling of a *slave, without a previous compliance with the *702] requisitions of the law, which could alone make such sale legal, was an illegal act; and this, therefore, is an authority for the defendant.

The case from 4 Burrow was an action on a bond given by the defendant to the plaintiff, to repay to the plaintiff the one half of a sum of money which the plaintiff had previously paid, for himself and the defendant, to a third party, in relation to a transaction forbidden by act of Parliament; and it was said by the court to be a fair and honest transaction between these two, and not in violation of the act.

That from 6 T. R., 410, Booth v. Hodgson, is an authority for the defendant.

In delivering the opinion in 3 T. R., 418, Lord Kenyon expressly declares that none of the provisions of the act were infringed.

1 Bos. & Pull. decides, that, if the contract be stained by any thing illegal, the plaintiff shall not be heard in a court of law. Simpson v. Bloss, 7 Taunt., 246, holds that no action can be founded on an illegal contract, and furnishes a test for determining what is an illegal contract, which is decisive against this.

The case from 4 N. H., 290, is an express authority for the defendant. It decides, that, when a statute inflicts a penalty for the doing of a particular act, that act is, by implication, prohibited and illegal. "Where an illegal contract is made between parties who are in pari delicto, the contract is void, and neither party can maintain any action which requires for its support the aid of such illegal contract."

The other cases seem to me to have no very direct application to the question, and certainly furnish no support to the idea, that a party can successfully assert a right in a court of justice, to which he has entitled himself by a violation of law. Indeed, I had supposed, if there was a universal and uncontroverted proposition in the common law, as it is known and

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understood in England and in this country, it was, that no act done in violation of the laws of the land, or in disregard or contravention of its principles, can be the foundation of a claim which can be enforced at law or in equity. And this has been the rule from Lord Holt to the present time, as can be shown by an unbroken series of decisions. In truth, this principle is much older than the common law, and was incorporated into that system from the civil law, whence it comes to us, clothed with the sanction of many centuries.

Where the law, as in this case, declares it shall not be lawful to do a particular thing, unless under certain conditions and limitations, no action can be maintained upon a contract *growing out of the doing of that thing, unless those conditions and limitations have been complied with. [*703 To declare an act unlawful, and at the same time to give a remedy to the person guilty of doing it, founded on his illegal act, would be to make the law as a house divided against itself. The law was never guilty of the absurdity of giving a legal action for an illegal act.

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In Bartlett v. Vinor, Carth., 251, Chief Justice Holt says, Any contract made for or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself doth not mention that it shall be so, but only inflict a penalty on the defaulter, because a penalty implies a prohibition, though there are no prohibitory words in the statute." The same is held in Bensley v. Bignold, 5 Barn. & Ald., 335; Drury v. Defontaine, 1 Taunt., 136; 14 Mass., 322; Holt, N. P., 425. This rule is now applied as well to cases mala prohibita as mala in se. 2 Bos. & P., 374, 375; 5 Barn & Ald., 341; 2 Wils., 351; 17 Mass., 281.

"The policy of a penal statute may be enlarged, not for the purpose of inflicting the penalty, but to avoid the contract." Dwarris on Statutes, 752; Mitchell v. Smith, 1 Binn. (Pa.), 110-118; 4 Yeates (Pa.), 34-54; 4 Serg. & R. (Pa.), 151.

No recovery can be had for printing a newspaper, whose publisher does not first make the affidavit directed by the act, though the act does not, in terms, avoid the contract. Marchant v. Evans, 8 Taunt., 142; Roby v. West, 4 N. H., 285.

The 17 Geo. 3, ch. 42, sec. 1, declares, all bricks made for sale shall be 2 inches thick and 4 wide, and the second section imposes twenty shillings for every thousand bricks so made of less dimensions, as a penalty. Held, that bricks of less dimensions could not be recovered for, though there was

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nothing in the act declaring the sale void. Law v. Hodgson, 2 Campb., 147.

And in the case of Sprergean v. McElwain, 6 Ohio, 442, it is decided, that where the statute forbids the keeping of a ninepin alley, under a penalty, a carpenter who builds one, knowing the object, cannot recover the price of building.

It would be useless to multiply authorities on this point. The courts of England and this country, with a rare uniformity, have held that every contract made in violation of the laws of the land, or without complying with its provisions, or which is made in disregard or contravention of the statute or common law, is void, and cannot be enforced in law or in equity. 1 Leigh, N. P., 6-13; 2 Pet., 539; 2 Carr. & P., 472; 4 T. R., 466; 3 Id., 454; Cowp., 191; 2 Doug., 698; 1 Mau. & Sel., 593; 5 Barn. & Ad., 887; 4 Pet., 410; 5 Johns. (N. Y.), 320; 1 Rand. (Va.), 76; 3 Id., 214; 1 Barn. & C., 192; 5 Id., 887.

*704]

*Mr. Justice GRIER delivered the opinion of the

court.

On the trial of the issues of the fact in this case before the Circuit Court, the defendant offered to read the deposition of William S. Rayner, which had been taken de bene esse, under the thirtieth section of the Judiciary Act. It was objected to by the plaintiff's counsel, as not coming within the conditions prescribed by that act. The court admitted the deposition, and sealed a bill of exceptions, which is the foundation of the first assignment of error.

A notice was served on the plaintiff's counsel, signed by the commissioner or magistrate, and stating the time and place at which it was intended to be taken, and that “I shall take the deposition of William S. Rayner, (about to depart the State,) to be read on the part of the defendant, de bene esse," &c.

When the deposition was offered, the defendant proved to the court, that "when said deposition was taken, said Rayner was on his way to the republic of Texas, to reside there, and that he was a citizen of, and resided in, said republic."

It has been decided by this court, in the case of Bell v. Morrison, 1 Pet., 351, that "the authority to take depositions in this manner, being in derogation of the rules of common law, has always been construed strictly, and therefore it is necessary to establish that all the requisitions of the law have been complied with before such testimony is admissible."

The conditions under which a party is permitted, and a magistrate authorized, to take depositions de bene esse, under

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this act, are, 1st, that the witness lives at a greater distance from the place of trial than one hundred miles; 2d, or is bound on a voyage to sea; 3d, or is about to go out of the United States: 4th, or out of such district to a greater distance from the place of trial than one hundred miles, before the time of trial; 5th, or is ancient or very infirm.

The magistrate is required also to deliver to the court, together with the depositions so taken, a certificate of the reasons of their being taken, and of the notice, if any, given to the opposite party. In order to entitle the party to read such depositions when taken and certified in due form of law, he must show, that, at the time of the trial,-1st, either the witness is dead; 2d, or gone out of the United States; 3d, or to a greater distance than one hundred miles from the place where the court is sitting; 4th, or that, by reason of age, sickness, or bodily infirmity, he is unable to travel and appear at court.

Now, assuming that the defendant has brought himself within the conditions which would enable him to read a deposition regularly taken and certified according to the requisitions of this act, the question is, whether this deposition was so taken and certified.

*The authority or jurisdiction conferred on the magis[*705 trate by this act is special, and confined within certain limits or conditions, and the facts calling for the exercise of it should appear upon the face of the instrument, and not be left to parol proof. The act of Congress requires them to be certified by the magistrate. It would be reasonable, also, where notice is required to be given to the opposite party, that such notice should show on its face that the contingency has happened which confers jurisdiction on the magistrate, and gives a right to the party to have the deposition taken, so that the party on whom the notice is served may be able to judge whether it is necessary or proper that he should attend. The notice in this case states only that the witness is "about to depart the State," not that he is bound on a voyage to sea, or about to go out of the United States, or a hundred miles from the place of trial.

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This notice is appended or annexed to the deposition, with a return of service by the marshal; but the service is not certified by the magistrate, nor does he certify, as required by the act, the reasons" for taking the deposition. The presence of the plaintiff's attorney, who declined to take any part in the proceedings, cannot affect the case, or amount to a waiver of any objection to the want of authority apparent on the face of this certificate.