come now to consider “whether a Lieut. Governor can with any propriety be chosen a Councellor.” I must here first premise that to assert: “There can be no liberty where he who exerciseth the executive power, has any share in the legislative”—is such a mistake as I cannot suppose the great Montesquieu to be guilty of; because it is well known, that by the constitution of England, of which (it must be remembered) he is speaking, the King, who has the sole exercise of the executive power and is therefore by our English lawyers called “the universal judge of property”—“the fountain of justice”—“the supreme magistrate of the kingdom, intrusted with the whole executive power of the law,” and the like,—has also an essential share in the exercise of the legislative power; namely, the power of rejecting. Therefore when this great writer says: “the executive and legislative powers ought not to be united,” he must be understood to mean, as he often expresseth himself, “the whole executive, and the whole legislative powers ought not to be united” as they are in the republics of Italy—or in other words, a majority of the body which exerciseth the legislative power should have no share in the executive. Understood in this sense, and in no other, the Baron speaks like himself—a man of superior genius, and extensive knowledge. And so long as the legislative and executive powers are kept thus separate, they are an effectual check upon each other; which is the reason assigned by this great writer, why they ought not to be united.
I readily agree with T.Q. that “there would be an impropriety in choosing the commander-in-chief a Councellor,” though not for the reason which he assigns, namely, that “this would be evidently to unite the legislative and executive powers in one person.” For I deny that the whole or the major part of the legislative power would in this case be in the commander-in-chief. And consequently [I deny] that the two powers would in reality, or could with any propriety of language, be said to be united in him any more than they are now because he exerciseth the executive power and hath also the power of rejecting or negativing in the legislative—which, as has been shown, is precisely conformable to the constitution of England.
The same answer may be given to this objection applied to the Lieut. Governor upon the supposition of his becoming Commander-in-Chief by the absence of the Governor. And so long as his Excellency is resident in the province, I can conceive no objection to the Lieut. Governor’s being of the Council, unless a bare title without power, disqualifies him—which, as it has not been, so I presume it will not be pretended.
But it is objected that “in case of the absence of the commander-in-chief, the Lieut. Governor fills his place, and then the province must either lose one of its Councellors or else the same Gentleman must act as Governor and Councellor.” To this I answer: (1) This is a contingent event which may or may not happen—and to deprive ourselves of an able councellor forever for fear we should some time or other be deprived of him for a short space of time, would be as if we should starve ourselves this year for fear we should not have an abundance twenty years hence. (2) Considering Councellors as councellors or advisers to the commander-in-chief, the objection is grounded on a wrong supposition for, in the case put, we should not in fact be deprived of one of our able councellors unless it be said that because he is commander-in-chief, therefore he must not consult his own understanding. (3) Considering them as legislators, the most that can be said is that in this case we should have but twenty-seven of twenty-eight members in one branch of the legislative body, a case which often happens without any apprehensions of danger to our political liberty. Whether this mere possibility be a sufficient reason for our depriving ourselves of an able counsellor, I leave to all reasonable men to judge. The objection, as it supposeth an unconstitutional union of the legislative and executive powers, is answered by adding to what is said above: that if the chief command should devolve upon the Lieut. Governor, in such case his Honour would not act as a Councellor, considering them as legislators.
Thus I have endeavored, in compliance with T.Q.’s desire, “to conciliate the minds of the good people of this province” by showing that his Honour the Lieut. Governor, and the honourable justices of the Superior Court, may be of His Majesty’s Council in perfect harmony with the great Montesquieu’s eternal maxim of truth: “there is no liberty where the legislative, executive and judiciary powers are not kept separate.”
Some other positions in T.Q.’s piece should be considered; but that I perceive this would carry me to too great a length. I shall only add 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.
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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
