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PolWritV1_001-050.indd 19 2/21/12 8:25 AM [2} T. Q. AND J. [Untitled] BOSTON, 1763 Contrary 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 I 69I 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 ofspelling and punctuation occurs, and words in brackets have been added ro ease the understanding of the text. * * * I. Letter by T .Q . in The Boston Gazette and Country j ournal for April r8, I763. 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 PolWritV1_001-050.indd 20 2/21/12 8:25 AM [ 20} BOSTON, q63 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 ofjudging 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, [18.116.62.45] Project MUSE (2024-04-26 12:31 GMT...

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