American Political Writing During the Founding Era: 1760–1805. Группа авторов
that the pretended danger of arbitrary power must appear a mere phantom, a bugbear, to any one who only considers that we are a dependent state, under the control and protection of Great-Britain. If we could be weak enough to suspect his Honour the Lieut. Governor of having the wicked design to enslave his country (though I can’t make the supposition, even for the sake of the argument, without pausing to ask his Honour’s pardon) yet we must be weak indeed to fear him, unless we can also suppose the King, Lords, and Commons of Great-Britain to be in combination with him.
Upon the whole, I submit it to all sober men to examine and judge for themselves whether the late indecent clamor and uproar about liberty and the constitution has not had it’s true source in something essentially different from or diametrically opposite to a sincere concern for the public good.
* * *
3. Letter by T.Q. in The Boston Gazette and Country Journal for June 6, 1763.
I think myself particularly obliged to the author of the piece in the last Monday’s Evening Post that he hath not treated me in such high terms of reproach with which several performances in that paper, distinguished by the same capital letter J, have so much abounded. On the contrary, he condescends to say that I am, comparatively, a moderate writer, and thinks it is the only Gazette he has read in which sound arguments and sober reasoning has not seemed to have been industriously avoided….
Political liberty is a tranquility of mind arising from the opinion each person has of his own safety. This is an independent proposition in The Spirit of the Laws and needs not any thing that goes before or follows after it to give us a just idea of what the author would define by it, it being itself a full definition of political liberty. And I desire Mr. J would observe it is the only one contained in the chapter on the constitution of England. It needs no great stretch of understanding to conclude that whatsoever has a tendency to destroy the opinion which each man has of his own safety, and the tranquility of mind arising therefrom, is inconsistent with political liberty. The aforesaid author tells us that when the judge is the maker of the law, the life and liberty of the subject is exposed to arbitrary control. Now this arbitrary control destroys the subject’s opinion of his own safety and the tranquility of mind arising therefrom; and is consequently inconsistent with political liberty according to the above definition of it. I should then have concluded, had not the wisdom of the Government determined it otherwise, that it is inconsistent with our political liberty for the justices of the Superior Court to be members of His Majesty’s Council, considered as legislators, [or to be members] of the House of Representatives in the province, which is the question in dispute. I have nothing against Mr. J’s taking into his idea of liberty what the author of The Spirit of the Laws says of it in another distinct chapter: that it does not consist in an unrestrained freedom—that it can consist only in a power of doing what we ought to will—that we must have continually present to our mind the difference between independence and liberty—and that it is a right of doing what the laws permit. But I cannot see why he need to insist upon it, for it does not appear to me to be necessary [in order] to form an adequate idea of liberty.
“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.” This Mr. J says is perfectly consonant to right reason, sound policy, and common sense. And yet he very soon after tells us that it is not to be understood that liberty is in danger when [an executive officer is] one member of that body which exerciseth the legislative power. But I should think, and I believe it is obvious to any man, that according to the aforesaid maxim, liberty must be in danger in proportion to the degree of influence which a single member of one body may have in the other. Mr. J’s argument admits of this—though he does not seem to be aware of it or intend it—when he allows that it is necessary that a large majority of the members of the legislative body should have no share in the judiciary power. Pray from when should this necessity arise but from its being incompatible and dangerous to liberty? And if for this reason it is necessary that a large majority of the legislative should have no share in the judiciary powers, for the same reason it is necessary that not a single man who has a share in the judiciary power should be a member of the legislative body. If a single member of the one body may also be a member of the other, why may not more? Why not five as is contended for? I must own Mr. J seems to have one more particularly in his view. The more addition is made of the members of the one body to the other, the nearer it approaches to a large majority, and so in Mr. J’s own opinion to such a degree of influence as is destructive to liberty. If every addition of one man tends to the destruction of liberty, it is dangerous to liberty. If every such addition weakens the subject’s opinion of his safety and the tranquility of mind arising therefrom, it is a breach upon liberty. Mr. J may easily see that it is the weight of influence we are all along speaking of as alarming. And he himself is aware, when he speaks of a large majority, of the certain destruction of liberty if the weight of influence in the legislative should be in those members of it who are also members of the judiciary body. It is then worth his consideration how much greater the influence of a judge may be supposed to be than that of any other gentleman is presumed to be. [A judge] generally is of the first character for natural endowments and acquired abilities. The authority involved upon him is great. His dependents, whether he chuses it or not, are many—that is, there are many who are constantly expectant upon his decisions. Hence his connections must be very strong and his influence very powerful, too powerful perhaps for one man, even to a degree of danger to common liberty.
Chancellors and other judges, Mr. J says, have their seats and voices in parliament; it is no uncommon thing for them to be created peers of the realm, at or after the time of their appointment to their respective offices. Be it so. The author of The Spirit of the Laws no where that I know of says that it is not inconsistent with liberty that it should be so or that it is reconcileable with his maxim—which Mr. J allows is perfectly consonant with right reason, sound policy, and good sense. But it is not so very common a thing, as he would insinuate, for Lord Chief Justices to be created peers of the realm. It is however confessed there are such instances, and the present Lord Chief Justice of the King’s Bench is one. A Peer of the Realm and a Councellor of this province are created by two very distinct powers. The one is the Sovereign’s act; the other the election of the people. A Sovereign may exercise his legal prerogative as he pleases. But will it follow that because the Sovereign is pleased to create a Lord Chief Justice a Peer of the Realm, it is expedient for the people of this province to make a judge a Councellor? This is the force of Mr. J’s reasoning here. Or will it necessarily follow that it is perfectly consistent with liberty, according to his own complex idea of it? Or lastly, will it follow that it is agreeable to Montesquieu’s sentiments of liberty, after he has expresly said: there can be no liberty if the power of judging be not separated from the legislative power? “The nation has for the direct end of its constitution, political liberty”; this is Montesquieu’s opinion. Yet it may so happen that a practice may sometimes take place, which may interfere with and obstruct the direct end of the constitution. Mr. J’s inference that it is constitutional because it has sometimes been a fact, I take to be inconclusive. His argument, therefore, a fortiori; with regard to this province, upon which he builds so much, must fall to the ground.
This writer [J] says that to assert that “there can be no liberty where he who exerciseth the executive power has any share in the legislation” is a mistake because [says J] the King, who has the sole exercise of the executive power, has also an essential share in the exercise of the legislative power, normally that of rejecting. By the power of rejecting, the author of The Spirit of the Laws tells us, he means not the right of ordaining by their own authority or of mending what has been ordained by others, for this is the power of resolving. If a prince says he should have a share in legislation by the power of resolving, liberty would be at an end. Mr. J then should take away from a Councellor his essential power which he partakes in—of ordaining and amending what has been ordained by others—or his argument fails. [It is not enough for J to say] “as the executive power has no other part in legislation than the power of rejecting, it can have no share in the public debates.” A commander-in-chief, if he is a Councellor, has another part in legislation besides the power of rejection and a share in the public debates. The whole share which the executive power has in