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.
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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, or is lost, whenever any one member of that body which exerciseth the judiciary power is a member also of that body which exerciseth the legislative power—or in other words, when the same person is a judge and [at the same time] a member of one branch of the legislative body. [Montesquieu’s] meaning, I conceive, is no more than this: that the body which exerciseth the legislative power should be composed of members, a majority (or if it be more agreeable to T.Q., a large majority) of whom should have no share in the exercise of the judiciary power. I confine myself at present to the legislative and judiciary powers; the executive will be considered presently.
The sense in which T.Q. does, and must, understand this maxim, if he would avail his argument of it, is this (viz.): “There is no liberty where the legislative and judiciary powers are not kept so entirely separate, that the same person is not a judge and [at the same time] a member of the legislative body.” Now if my construction be right, it is evident, I think, that all arguments against the judge’s being of His Majesty’s Council, founded upon the foregoing maxim of Baron Montesquieu, are sophistical and inconclusive. To the easy task of proving my construction to be right, I proceed therefore in very few words.
Let it be observed then, and kept in mind, that the chapter of The Spirit of the Laws from which this maxim, and most of T.Q.’s other quotations, are taken is that wherein the Baron is professedly treating of the constitution of England. Let it also be observed that by the constitution of England the Lords Temporal, who sit in Parliament by reason of their dignities held by descent or creation, are not deprived of their seats or voices in Parliament by being made Chancellors or Judges of any other courts in the kingdom; but continue to sit and vote there notwithstanding such commissions. Let it be farther observed that from the first institution of the courts of Westminster-Hall to this day, it has been no uncommon thing for the Chancellors and Lord Chief Justices of the courts of Kings-Bench and Common Pleas to be created Peers of the Realm by patent or summons, at or after the time of their appointment to their respective offices. These are facts so well known to all who have the least acquaintance with the constitution of England that it would be needless to produce authorities in support of them. However, if any one doubts the truth of them, let him consult the 4th Institute and Rapin’s, or any other good history of England. It may not be amiss here just to mention, as a recent instance of this last kind, that the present Lord Chief Justice of the Kings-Bench in England was created a Peer, Anno 1756, by the title of Lord Mansfield of Mansfield; and has now a seat and voice in the House of Lords, and is, to all intents and purposes as completely a member of that branch of the legislative body, as any one member of that august house. Once more, let it be observed that the House of Lords is the supreme court of judicature in the nation, to whom appeals lie from decrees given in chancery, and before whom writs of error are brought upon judgments given in the court of King’s-Bench. Now can it be supposed that the great Montesquieu, who had but just before observed that the English nation “has for the direct end of its constitution political liberty,” and was now professedly describing the constitution of England, should yet lay it down as a maxim that: “there is no liberty where the legislative and judiciary powers are not entirely separated,” in T.Q.’s sense? Or can it be supposed that the Baron was unacquainted with facts so notorious and so essentially incompatible with his grand maxim (as T. understands it) as the foregoing are? Or will it be said that the legislative and judiciary powers are not separate, and consequently that there is no political liberty in England? No man, I think, who has read The Spirit of the Laws will suppose the former; and no Englishman in his senses, I am sure, will say the latter. Therefore I conclude, and I think very fairly, that T.Q. has essentially misapprehended the Baron’s meaning—i.e., that Judges may be members of the legislative body in perfect consistency with the constitution of England and with Montesquieu’s maxim. I will only add here that if my argument is conclusive with respect to England, which I presume cannot be denied, it is so a fortiori in regard to this Province because our Board
