and the settlement of the wife's estate on her husband, are good considerations to raise an use to the husband out of the wife's estate-love and affection being alike implied in both cases; and, therefore, the messuages and lands would have passed by this deed considered as a covenant to stand seised to the uses therein mentioned,' if there had been no valuable consideration mentioned in the deed, or that could have been truly averred; for then the estate could not have passed by this deed, considered as a bargain and sale. But as there is a pecuniary consideration expressed in the deed, the messuages and lands may well pass by it considered as a bargain and sale; for any sum of money paid, or secured to be paid, is sufficient to raise an use.

In the case of Sutton's Hospital, on a bargain and sale of Charter House and thirty acres of land, which, for the importance of the cause, was adjourned from the King's Bench into the Exchequer Chamber, to be argued before all the judges; it was held, that the reservation in the deed of a rent of twelve pence to Sutton and his heirs was a good consideration for the making the grant.3 And afterwards in the case of Barker v. Kent in the Common Pleas, a reservation of a pepper corn rent to be paid in six months on demand, in a deed of bargain and sale, to make a tenant to the præcipe in a common recovery, was held a good consideration for that purpose; though such tenant must be actually seised of the freehold, or the recovery is not good. Five, ten, or twenty shillings lawful money is oftentimes inserted as the only consideration in deeds of bargain and sale, drawn by the best conveyancers in England, and sometimes they are made in consideration of a certain sum of money, without saying how much, and held good."

1 Crossing v. Sendamore, 2 Lev. 9; 1 Vent. 137; 1 Mod. 173.

21 Co. 176, a. Mildmay's Case.

3 10 Co. 34. a.

4 2 Mod. 249; 3 Mod. 387; 2 Bla. 362.

Appr. No. 11. 1 Leon. 170; 1 Bridgman's Conv. 33,

52 Mod. 251; 2 Bla.

2 Bridg. Conv. 121, 454, 335, 456.

83, 171, 203, 578, 280. 195, 6.

Lill. Ent. 190,

And M. Gill and his wife, having by this deed acknowledged that one consideration which moved them to make it, was twenty shillings lawful money paid them by John Scott, the law will not allow her heirs to say the contrary; though creditors or bona fide purchasers may do it.2

John Scott, like tenant to the præcipe made by deed for a common recovery, is a mere instrument for one purpose of form only, has none of the estate left in him, his wife is not entitled to dower, nor can he do anything to affect any of the messuages or lands,3 any more than if he had not been named in the deed. Whereas in settling the wife's estate on her husband, or on themselves, by two separate deeds of bargain and sale in the common form, the first grantee's wife is not only entitled to dower, but he may encumber the estate, or it may be attached for his debts, unless both deeds could be considered as but one conveyance of the wife's estate to the use of the husband, or to their joint use; and if they can, and are to be so considered, surely the conveyance had much better be made in a legal and regular manner by one deed, evidently made for that purpose, as that would be attended with less expense, and no risk of dower, or other incumbrance.

Deeds of conveyance to uses are, and ever since the statute of 27 Hen. VIII., made for transferring uses into possession, have been legal, as well as common assurances in England,' and are, and ever since the first settlement of this country, have been legal assurances here, though not so common as there. And husband and wife may, and ever since the making of the Prov. act of 9 Wm. III. at least might, by such deed lawfully convey her estate to the use of themselves, and the longest liver of them, as is well and regularly done by this deed; which was drawn by the best conveyancer in the Province,

N. B. If all the messuages and lands aforesaid are suffi

1 1 Bac. 276; Moore 570; Dyer 169; Salk. 286; 1.Leon 170.

ciently ascertained and described in the prior deed made by M. Gill and his wife, and passed by that deed to the same uses as are mentioned in this, they cannot pass again by this; but if any of them were not conveyed to those uses by that deed, they doubtless are by this; which probably was made to supply any defect there might be in the first deed.

EDM. TROWBRIDGE.

ART. VIII-POWER OF THE LEGISLATURE TO SUSPEND A LAW FOR THE BENEFIT OF AN INDIVIDUAL.

[The following reply to an article in our January number is inserted, rather on account of the interest and importance of the subject in general, than as a discussion peculiar to the Constitution of Massachusetts. The question considered is one which goes deep into the powers of all the legislatures of the different States, and which, it is of great importance should be thoroughly understood. By some men the suspending power is regarded as a right arm of the legislature, necessary to the just making of laws; while by others, as the writer of the present article, it is held to be one of the most obnoxious attributes which a legislature can possess, and utterly uncongenial with the institutions of a Republican Government. The following article will be read with interest, as presenting the view opposite to that previously given in this Journal. Audi alteram partem. If our readers do not think that it will be devoting an undue portion of our pages to this subject, we may take occasion to resume the discussion in some future number.-ED. JUR.]

IN the 25th No. of the American Jurist (Jan. 1835,) appeared a very able article on the power of the legislature in Massachusetts, to suspend the laws for the benefit of an individual. To some of the general principles there advanced, I cordially subscribe; but there are others from which, as well as from the arguments upon which they are based, I must dissent, and more especially from the conclusion at which the writer has arrived on the subject announced. The immediate argument on this subject is confined within very narrow limits. It is a mere question of construction on a few passages in the Massachusetts Bill of Rights. But, in order to

árrive at that construction, it is necessary to discuss briefly the general principles which have been examined in the article referred to.

It cannot be denied that, in every government, an absolute power resides, de facto, somewhere. In different ages and countries it has been lodged in various branches of the body politic. In America, and in Massachusetts, it has, since the Revolution, ever been in the keeping of the people. This power can do any thing. Appeal from its decrees is impossible, because there is no tribunal to which to carry an appeal from the paramount authority. But, in this country at least, as soon as it transcends the limits of natural equity, it will be considered as a mere naked power, without any shadow of moral right; and any proposition for its exercise beyond these limits will be met with the indignation that is due to every aggression upon the rights of man.

One of the most obnoxious forms in which this power can be exercised is, probably, that of suspending the laws. Even those writers who admit its existence, reprobate its use. In the Roman law, while we find it at one moment resorted to for a temporary purpose, (Nov. 9,) in another it is repealed, (Nov. 11,) because oppressive even beyond the endurance of the subjects of the Eastern empire. Burlamaqui, while he asserts the power, admits the danger of using it; Prin. of Nat. Law, Part I. ch. 10, 13. Blackstone (1 Com. Introd. p. 59,) says: To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression.' Chancellor Kent and Mr. Justice Story, while they admit the power, express the most decided opinion that its exercise is contrary to the spirit of our institutions. Kent's Com. Vol. I. Lec. 19, 20, pp. 408, 455. 3 Story's Com. ch. 34, pp. 268, 9. It is also reluctantly admitted in the case of Holden v. James, (11 M. R. 396,) and though it would be much for the interest of society that an eternal barrier should be raised against it, yet we cannot deny the existence of a power

exercised by the legislature, and confirmed by the judiciary. We must admit too, that by the very ample words of the constitution, the legislature can pass any law which is not contrary to the provisions of that instrument. This admission relieves me from the necessity of correcting some inaccuracies of expression, into which the writer in the Jurist has fallen when examining the title by which the legislature holds its power. He does not bear sufficiently in mind that the people, not the legislature, are the supreme source of authority, and that the latter exists not by any inherent virtue, but solely because the people for their own good have clothed it with authority. But I grant that the legislature enjoy all power not withheld by the Constitution. The fact of this power being derivative, instead of self-existing, might afford an argument for its more moderate exercise.'

Though I admit most fully the actual existence of this absolute power, yet I contend that its arbitrary exercise is a violation of every principle of natural justice. Indeed the books are full of expressions showing the extreme hostility which the writers on natural and constitutional law have entertained against it. In addition to the citations which have been made from the civil law, I would refer to Gibbon's Dec. and Fall, eh. 44, add. note 94, 5. The following passage from Montesquieu Grand. et Decad, &c., ch. 22, expressly denies the existence of the power: 'C'est une erreur de croire qu'il y ait dans le monde une antorité humaine à tous les égards despotique; il n'y en a jamais eu et il n'y en aura jamais : le pouvoir le plus immense est toujours borné par quelque coin. —-Il y a dans chaque nation un esprit général sur le quel la puissance meme est fondé; quand elle choque cet esprit elle se choque elle meme, et elle s'arrête necessairement.'

See also the very masterly argument of Kent, C. J., in-Dash v. Van Cleek. 7 Johns. Rep. 499; Fletcher v. Peck, 6 Cranch, 135.

These and a cloud of other authorities, and the sense of civilized man, are enough to show how odious, how unjust, how of 'no right nor shadow like to right' has the exercise of arbitrary power been ever held. And perhaps the only sufficient reason why its existence must be admitted is, that, when exercised by the supreme power of the land, there is no other power capable of affording redress, and though the injured subject possesses a perfect natural right to it, from the very nature of society and government he has only a right, without a remedy. If the tribunal in the last resort does him injustice, he must submit to it without hope of appeal.

A further most powerful argument, showing the injustice of the exercise of the power of suspending the laws, may be derived from the following passage 8

VOL. XIV.NO. XXVII.