American Political Writing During the Founding Era, by Charles S. Hyneman, Donald S. Lutz

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By Charles S. Hyneman, Donald S. Lutz

American Founding and structure

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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. " But it has happened, and how soon it may happen again can only be conjectured. " 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 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.

Q. , 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. " 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 {26} BOSTON, 1763 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.

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