civil society might enjoy its salutary influences, there must be teachers. And the laws have accordingly enjoined it on all towns, parishes, and other societies incorporated for religious purposes, to elect and support public Protestant teachers of piety, religion and morality, leaving it in the absolute power of these corporations whom to choose, and the nature of their support. By adhering to this liberal and equal establishment, as we prevent all possibility of vesting in any one sect peculiar privileges or prerogatives over the others, so we obtain for ourselves that civil and temporal safety which is unattainable but by the sanctions of religion. And, Gentlemen, while we are instructed how to be good citizens, good neighbors, good in every relation of this life,-if we should also be taught, that there is another and a better country, and should learn the way to gain an inheritance in it, surely we should not complain because patriotism may be exalted to piety.

Of these offences you will diligently inquire, and true presentment make, without either envy, hatred, or malice, and without love, fear, favor, affection or hope of reward.

When the result of your inquiries shall lead to accusation, the Solicitor General will assist you in reducing your proceedings to the forms necessary for legal animadversion.

The importance of executing the duties of your office with honest attention, cannot be explained more clearly, than by describing its nature and design. Government being instituted for the support and protection of rational liberty, laws must be enacted to restrain the passions and appetites of individuals from violating the just rights of others. The laws, to be effectual, must annex penalties to the breach of them; and make provision for the prosecution of offenders. For this purpose, it is necessary that there be a public accuser. Were this office permanently vested in any one man or body of men, our liberties would be unsafe. The exclusive right of accusing would attach to itself an influence and power that would be irresistible. It would be able to dispense with the laws to deny protection to innocence, and to shield guilt

from punishment. To avoid these evils, our laws, in designating the men who are to discharge the duties of an office necessary to the Commonwealth, have applied the principle of election. The several towns choose a number of their fellow-citizens competent to this office; and from this number you, Gentlemen, are selected by lot. When empannelled and sworn, you are to execute the functions of Public Accuser, and having discharged this painful office for a short time, you are again blended in the mass of our fellow-citizens. To guard against the escape of criminals, and to secure to yourselves freedom and independence in your inquiries, the Commonwealth's council and your own you will keep secret. Thus constituted, liberty is without danger, innocence will have protection, and only guilt will have cause to fear.

This principle of election is further inseparably connected with our Courts of Judicature. To preserve the Judicial department from the control of the other departments of government, and to enable the judges to acquire the knowledge and experience necessary for the proper discharge of their duties, they hold their offices during good behaviour, but it is a general rule, that they cannot pass upon the life, liberty, reputation, or property of any man without the consent of his fellow-citizens, expressed by a jury elected and sworn for that purpose, if he choose to put himself on his country.

As we survey the other parts of our Government, we shall find this principle of election pervading every department. Indeed, it is the animating principle, the soul of our constitution. The people, from their numbers and dispersed situation, being incompetent to exercise the legislative or executive powers, hold, as the foundation of those powers, the right of election. Our Constitution is, therefore, founded on principles of real freedom, having for its great objects public liberty and private safety. And, as we value these blessings, so should we sincerely adhere to the means of procuring them.

If further motives should be required, they will result from the consideration that an elective constitution is the only

VOL. XIV.-NO. XXVII.

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politically free one, the people of Massachusetts can have. Whenever the executive and legislative powers are united, a subjection of the judicial will follow, and there can be no political liberty. An hereditary executive, not deriving his authority from the people, nor accountable for its exercise, will, either by force, corruption, or fraud, render a popular legislature dependent on him, or the popular legislature will annihilate the authority of the monarch. In either event, the balance of the several powers of government being destroyed, public liberty could have no security for its existence. Let it therefore be repeated as an axiom in politics, that our Constitution, to be politically free, must be founded on elections by the people. For my part, possessing some means of information, I know of no diversity of sentiments on this subject. The opinion is as general, as it is correct. Having such a Constitution, it must depend on the people to cause it to be administered with wisdom and fidelity upon its true principles. It is, therefore, our interest, and a duty we owe to posterity, to elect to public offices our wisest and most virtuous citizens, and so long as they behave well in office, to give them our sincere and unbiassed approbation, which is the highest reward an honorable ambition will covet. As public offices are created, not for the emoluments of those who may fill them, but for the public interest, frequent elections are a privilege very important for the people. By the exercise of this privilege they may, by wise substitutions, remove from power and trust, unsuitable men; and by their continued confidence excite and reward the labors of good men. As it is not to be presumed that the people, enjoying these fundamental rights and privileges, will voluntarily abandon the Constitution, if it should ever be destroyed from internal causes, these causes must arise from the improper use of their own powers. And the ambition of a few men, availing themselves of the passions or the mistakes of their fellow-citizens, will aim the first blow. If these principles be correct, our political rights and privileges assume the character of most important moral

duties, upon the upright and intelligent discharge of which depends the felicity of the present and of future generations. For no longer than we act wisely and virtuously,—no longer than we exercise the rights of election with care, prudence, and discretion, can we reasonably expect that our free government will repel the calamities under which other republics, ancient and modern, have fallen, to rise no more.

These very general observations, which at all times deserve the attention of citizens enjoying the blessings of an elective constitution, I submit to your candid examination, assuring you, that whatever may be their merits, or defects, they flow from a heart devoted to the best interests of our country.

ART. IV.-IS A CONSIDERATION NECESSARY TO THE VALIDITY OF A DEED OF LAND?

CASE.

On the 27th January 1831, S. W., by deed of that date, in the common form, and containing a covenant of warranty and other usual covenants, 'gave, granted, sold, and conveyed' certain real estate, therein described, of which the said S. W. was then lawfully seised in fee, to B. G. P., his heirs and assigns; and the deed was acknowledged on the day of its date, and recorded on the 9th of February following. The deed declares that the conveyance is made in consideration of ten hundred and seventy dollars, paid to the said B. G. P. by the said S. W., although in fact there was no good or valuable consideration for the conveyance, it being made to the said B. G. P., (who was a son of the said S. W.'s second wife) merely on account of the good will and affection borne to him by the said S. W. At the date of the conveyance, the said S. W. was solvent, and so continued till the time of his death, so that

there are no rights of creditors to be considered. The heirs of S. W. seek to recover the said real estate; and the question is,—Whether by the said deed the said B. G. P. obtained a good title, as against the said S. W. and his heirs, to the fee of the said real estate.

OPINION.

S. W., being lawfully seised in fee of the premises, the deed is apparently sufficient to convey the fee from himself to P., for it is in the common form of deeds of warranty, and there is no apparent reason why it should not have the ordinary operation of such deeds. It is only when we look out of the deed, and consider the fact that the consideration, said by the deed to have passed, did not in fact pass, that there is any room for doubt. It becomes, therefore, an important question whether the heirs of W. can be admitted to aver and prove that the consideration, mentioned in the deed, did not pass, and that there was in fact no consideration at all for the conveyance. There is some little confusion in the cases upon this point, but the general rule is no where denied, that no averment can be made of a consideration contrary to that expressed in a deed. Mildmay's case, 1 Co. 176; Bedel's case, 7 Co. 392; Rol. Ab. 786; Quarles v. Quarles, 4 Mass. R. 680. Unless there be fraud or other illegality in the consideration. Collins v. Blantern, 2 Wils. 347; Pole v. Harrobin, 9 East, 416; Paxton v. Popham, 9 East, 416.

This exception is a just and reasonable one, and under it I think every case may be ranged in which evidence has been admitted to show a consideration contrary to the one expressed in the deed, or to show, as in the case of Fillmer v. Gott, (7 Bro. P. C. 70) that a part of a consideration expressed in the deed in fact had no existence. In all these cases the consideration has been examined into, because otherwise the law would be guilty of the strange absurdity of saying, this contract is fraudulent and void, but you shall not be permitted to show the facts which make it fraudulent and