desired end. But this they cannot do. They cannot inquire into the motives of the par ties, but must stop short when they have as certained that the contract is one which is opposed to public policy. The purpose of this rule is to prevent persons from assuming a position where selfish motives may impel them to sacrifice public good for private ben efit. (Elkhart County v. Crary, 98 Ind., 242. "Where a contract belongs to a class which is reprobated by public policy, it will be declared illegal though in that particular instance no actual injury may have resulted to the public, as the test is the evil tendency and not its actual results." (15 Amer. & Eng. Encycl. of Law, 2d. ed., 934.) In Hartley v. Rice, 10 East, 22, the plaintiff declared in assumpsit upon a wager made on the 25th of November, 1799, where by he bet with the defendant 50 guineas that he, the plaintiff, would not be married in six years; stating that in consideration that the plaintiff promised to pay the defend ant 50 guineas in case he, the plaintiff, should be married within that time, the de fendant promised to pay the plaintiff the like sum if the plaintiff should not be married within that time. The plaintiff was nonsuited, Lord Ellenborough saying: "On the face of the contract its immediate tendency is, as far as it goes, to discourage marriage; and we have no scales to weigh the degree of effect it wouTd have on the human mind. . . . No circum stances are stated to us to show that the re straint was reasonable; and the distinct and immediate tendency of the restraint stamps it as an illegal ingredient in the contract." Blanc, J., also said: "Now it is impossible to say that such a contract might not have an effect on the mind of the party to deter him from marrying during the six years; but a contract to restrain marriage gen erally has been determined to be ille gal, as being against the sound policy of the law; and nothing is stated here to show j
it to be otherwise in the particular instance." The general prohibition is one dependent for its enforcement neither upon the com mon nor upon statute law (15 Amer. & Eng. Encycl. of Law, 2nd. ed., 933-4;) and, indeed, to paraphrase the language of Lord Loughborough in Stackpole v, Beaumont, 3 Ves. Jr., 96, how these numerous rules of con struction should have ever become engrafted upon our law is impossible to be accounted for, but upon this circumstance, that there was a blind adherence to the text of the Eng lish law. Our judges did not reason; but only looked into the books, and transferred the rules, without weighing them, as pos itive rules to guide them. The tendency of the American courts in dealing with restraints on marriage is "to construe them strictly, in such manner as will favor the persons on whom the restraints are laid." (Waters i: Tazewell, supra.) In the language of the Missouri court, in Williams v. Cowden, 13 Mo. 211: "The pre servation of domestic happiness, the security of private virtue, and the rearing of families in habits of sound morality and filial obedi ence and reverence, are deemed to be objects too important to society to be weighed in the scale against individual or personal will. In this case, it need scarcely be more spec ifically intimated, that the clause in question, however well intended, virtually presented and held up a continued reward for that spe cies of immorality to avert which the institu tion of marriage was so divinely ordained and has been so wisely upheld. By its terms, no offence, but that of marriage, however, suitable; no crime, even, could divest his child of the estate bequeathed her. Surely so ciety has not been organized thus to uphold a direction to property, which is not its creature, and which could not even be ac quired or transmitted without its aid and protection but which it must be obvious might thereby undermine and overthrow the main foundation upon which it reposes."
