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 legislation is barely legislative; it may or may not annul the resolutions of the legislative body as it pleases. But a Councellor has a positive share in those resolutions.
The legislative body is composed of two parts. Each one checks the other by the mutual privilege of rejection. They are both checked by the executive power, as the executive by the legislative. There is and should be a sufficient weight in each of these powers to keep an even balance. . . .
If the commander-in-chief should be a Councellor at the same time, the two powers being invested in the same person (though with respect to the legislative, in part only), unavoidably, in certain degree, there would fall in the scale of executive power too much weight of influence. In other words the person possessed of the whole executive power would have an undue weight in the legislative body, and the balance would be disadjusted. Mr. J seems to allow that this should be an unconstitutional union, and says that in such a case a Lieutenant-Governor would not act as a Councellor, considering them as legislators. But can he assure the public of this? Power is enchanting. All men are fond of it. There are few men, if any, who would refuse at least as much as is offered to them. And if a Lieutenant Governor, in the case supposed, should choose to think that it was not an unconstitutional choice, and to act in both capacities, who could hinder him? Mr. J says: “It is a contingent event, and it may not happen.” But it has happened, and how soon it may happen again can only be conjectured. “To deprive ourselves,” says he, “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.” Whether, if his honor the Lieutenant Governor should be left out of the Council, some other gentleman might not possibly be found qualified to fill his seat or whether we should be totally deprived of an able Councellor forever without any hopes of ever repairing the loss, is a question quite new. I choose for prudent reasons to waive it, at least till I hear further from my friend Mr. J.
The author of this letter to the editor, writing only under the name of U., is apparently responding to an altercation in the Massachusetts legislature. Despite the obvious depth of feeling, the author places the incident in a broad theoretical context that reveals much about the grounds of political discourse at the time. The essay appeared in the Boston Gazette on August 1, 1763.
TO THE PRINTERS.
Man is distinguished from other Animals, his Fellow-Inhabitants of this Planet, by a Capacity of acquiring Knowledge and Civility more than by any Excellency, corporeal, or mental, with which mere Nature has furnished his Species.—His erect Figure, and sublime Countenance, would give him but little Elevation above the Bear, or the Tyger: nay, notwithstanding those Advantages, he would hold an inferior Rank in the Scale of Being, and would have a worse Prospect of Happiness than those Creatures; were it not for the Capacity of uniting with others and availing himself of Arts and Inventions in social Life. As he comes originally from the Hands of his Creator,
