Читать книгу American Political Writing During the Founding Era: 1760–1805 - Группа авторов - Страница 10
ОглавлениеContrary to our broader understanding today, the doctrine of “separation of powers” was originally understood essentially as a prohibition on multiple office holding. These three letters nicely illustrate this and discuss the reasons for the prohibition as well as the possible limits to the prohibition. The lower chamber of the legislature under the Massachusetts Charter of 1691 was elected by the freemen of the colony, while the upper legislative chamber, the Council, was elected at a joint session of the lower house and last year’s Council. The Council was a full partner in the lawmaking process and served also to advise and assist the governor. In 1763 the possibility arose of the lieutenant governor and one or more judges being elected councillors, and the three letters reproduced here discuss the propriety of such multiple office holding. All but a few paragraphs are reproduced, some modernization of spelling and punctuation occurs, and words in brackets have been added to ease the understanding of the text.
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1. Letter by T.Q. in The Boston Gazette and Country Journal for April 18, 1763.
Political liberty, as it is defined by a great writer [Baron de Montesquieu] is “a tranquility of mind arising from the opinion each man has of his own safety.” When this liberty is once destroyed it is to very little purpose to enquire how it was brought about; but before that is done, it is wisdom to guard against whatever has a tendency to it, in order to prevent it. Among many other things of this nature and tendency, the entrusting the same gentlemen with legislative and judiciary power, or the power of making laws and judging of them after they are made, has been warmly objected against in this paper. Such an objection we conceive may be made without breaking upon the rules of strict decency. It cannot however be a reflection upon a single gentleman because there are and have been for more than two years past, more instances than one of these different powers being invested in the same persons. Some of the arguments that have been used for this purpose, were taken from the admired writer of The Spirit of the Laws [Montesquieu]. We should be glad to see them fully answered, the doing of which before the ensuing elections would tend much more to the conciliating the minds of the good people of this province than many such pieces as we have 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.
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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 of Councellors is not the Supreme Court of Judicature here, as the House of Lords is there.
I 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 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 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.
