American Political Writing During the Founding Era: 1760–1805. Группа авторов
seen published of late. Those who think the reasoning of the aforementioned writer conclusive are humbly of opinion that though “we are in the enjoyment of as great civil and religious liberties as any people under heaven,” we are at present in a way “most effectually to destroy them.” “There is no liberty,” says this writer, “if the power of judging be not separated from the legislative power; for the judge being the maker of the law, the life and liberty of the subject would be exposed to arbitrary control.” Consequently no subject how honest soever could be sure of his safety, and this uncertainty is inconsistent with political liberty.
It has also been questioned whether a Lieutenant-Governor can with any propriety be chosen a counsellor. If the question had been of a commander-in-chief no one perhaps would hesitate a moment to determine the impropriety of it, for this would be evidently to unite the legislative and executive powers in one person—a thing equally destructive to liberty as the other because “apprehensions may arise lest he should make tyrannical laws [in order] to execute them in a tyrannical manner.” Let it then be considered that in the absence of a commander-in-chief, a Lieutenant Governor fills his place, becomes invested with his executive powers, and acts in his stead. This has been the case and may be again. Have we not seen the time when the province must have been deprived of one of its able counsellors, [because otherwise] the same gentleman must have acted as governor and councellor, or in the executive and legislative trusts at the same time. The expediency of the one or the congruity of the other with the constitution, we should be glad to have explained to us. Besides, a gentleman must have an uncommon steadiness of mind to act with impartiality in the one of these truths while he is so nearly connected as to be continually almost within the sphere of the other. Many inconveniencies might be mentioned which ought by no means to be imputed to disaffection to, much less construed as an injurious reflection on, the present Lieutenant Governor who in our opinion fills up his different places with as much reputation as any other gentleman in the province could. At the same time it will give him no offence, however some others may take it, to suppose that some gentleman may be found in the province as well qualified, at least for a seat at the council board, as he. The objection we are now considering is not a new one; it was made many years ago. Lieutenant Governor Dummer was a gentleman of a most amiable character, and deserved as well from his country as perhaps any man ever did. Yet some of the best and most sensible men in the province, who had the highest personal regard for that excellent man, strenuously opposed his election for a counsellor upon the principles now urged. And their reasons were so prevalent in that day as at length to prevent his being chosen, after which he never had a seat at the board though he lived many years. What situation must the poor subjects be in under those republics where [the body of magistrates who execute the laws are able to utilize a whole body of powers] which they have given themselves in another capacity as legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary power in their hands, every private citizen may be ruined by their particular decisions.
All men will allow that it is possible for one gentleman to be possessed of more power than is consistent with the safety of a community. The enquiry ought not to be how much he may possess with safety, but with prudence. The greater good any man hath done to his country, the more danger there is of his being entrusted with exorbitant power. Power, if we may be allowed the expression, naturally intoxicates the mind. It even alters men’s dispositions and inclines them to be masters instead of benefactors of their country. It affords them opportunity and prompts them to the exercise of a sort of tyranny by art, as fatal as if exercised by the sword. The Greeks found out an expedient to prevent these mischiefs, that is to keep their good men from growing formidably great. The Greeks were a wise people, and all governments would do well in this particular to imitate their example. It may be said, there can be no danger at present. But let it be considered that history affords us instances of men who had done great good to their country, for which they were even adored; and afterwards, having too much power in their hands, they betrayed their country! As long therefore as human nature is the same, as long as there is the same ambition in the minds of men, exorbitant power will have the same operations, and the same causes will produce the same effects. Julius Caesar, says a fine writer, was employed by the commonwealth to conquer for it, and he succeeded in his commission. Thus he was a benefactor to his country. But as a reward he took the commonwealth for his pains. Julius Caesar was a man of art and address. He distinguished himself by a courtesy and politeness of behavior as well as by his learning and his arms. He knew very well how to ingratiate himself with his countrymen. He gained their confidence by flattery and intrigue. And as soon as he had got power enough he made himself their master and ruined their liberties. If we have not a Caesar among us, and we would be far from insinuating that we have, it is wisdom for us to take care not to introduce one. If Gentlemen are now armed with so much fortitude and possessed of so much moderation, wisdom, and public virtue as to be aware of and withstand those temptations by which men in power are always encountered, and which have bore down even good as well as great men in former times, it ought to be remembered that great men are not always wise and good. The time may come when an ill use may be made of the precedents which are now establishing; when others—by being invested with the same offices with which it is said Gentlemen may be now entrusted with safety—may have an inclination as well as power not barely to disturb the peace, but to destroy the liberties of a province. This, then, may be as happy a reason to put a stop to such precedents as we may ever expect to have, since the only reason assigned for lessening the powers of any gentlemen at present is: that they possess rather too much.
* * *
2. Letter by J. in The Boston Evening Post for May 23, 1763. Supplement.
I am led into these reflections, by the alarms which have, of late, been industriously sounded upon all occasions, in public assemblies and in more private meetings, of the imminent dangers which threaten the liberties and constitution of this province [resulting from the circumstance of] his Honour the Lieut. Governor and the honourable justices of the Superior Court having a seat at the council board….
I have before me the Boston Gazette of the 18th of April last, wherein is a piece upon this subject, signed T.Q.—a piece which, if compared with some other productions of the Gazette, may be called a moderate piece. It is the first I remember to have read in the Gazette in which sound argument and sober reasoning has not seemed to have been industriously avoided; all the others, upon this subject, having consisted wholly in bold assertions and personal reflections—and how far the reasoning in this is conclusive shalt now be considered….
The Gentleman has given us a definition of political liberty, from the very justly celebrated author of The Spirit of the Laws: “The political liberty of the subject,” says this great writer, “is tranquility of mind, arising from the opinion each person has of his safety.” To which I beg leave to add what the same inimitable author says, a little before, upon this subject: “Political liberty does not consist in an unrestrained freedom. In governments, that is in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit.” The whole of this taken together forms, in my opinion, the just idea of political liberty as it regards the constitution and as it has relation to the subject—any other, than this complex idea of political liberty, is partial and will lead to endless error.
The question then to be considered is, whether it be inconsistent with, or dangerous to, our political liberty (taken in this complex sense) to have the Lieut. Governor, or the Justices of the Superior Court, members of His Majesty’s Council for this Province? T.Q. has taken the affirmative side of the question; and, if I rightly understand him, his main argument is grounded upon this single maxim of the same penetrating Montesquieu, viz: That, “in order to the preservation of liberty, it is necessary that the three powers—the legislative, executive, and judiciary—be not united, but be kept separate”—a maxim which, T.Q. and I shall agree, is perfectly consonant to right reason, sound policy, and common sense. But I believe we shall not so readily agree upon the sense in which it is to be understood. In my apprehension, Montesquieu no where says or would be understood to mean that liberty is in danger,