Concerning JusticeEmery, Lucilius A. (Lucilius Alonzo)
Philosophy
Concerning Justice
Emery, Lucilius A. (Lucilius Alonzo)
Courts -- United States; Justice; Justice, Administration of
In colonial Massachusetts William Stoughton held the offices
of military commander, lieutenant governor, and chief justice at the
same time. Because of the frequent and prolonged absences of the
titular governor he was often the acting governor. As an inevitable
consequence, when sitting as a judge he was more a zealous prosecutor
than an impartial judge. His conduct in the witchcraft trials was
comparable to that of Jeffreys in the infamous "Bloody Assizes."
Hutchinson was also often acting governor while holding his commission
as chief justice.
In view of their experience and deep study, the opinions formed by
the framers of the early constitutions of this country should be of
great weight in forming our own. It is worth while to cite the
opinions of some. Thomas Jefferson was not in his day, nor has he been
since, regarded as opposed to popular government. Virginia had as
early as 1776 declared in its first constitution that the three great
departments should be kept separate. Jefferson, who besides his other
opportunities of observing the operation of government was himself
chief magistrate of the state, criticized that constitution as not
making such separation effectual. In his "Notes on Virginia" he wrote
of it: "All the powers of government, legislative, executive and
judiciary, result to the legislative body. The concentrating these in
the same hands is precisely the definition of despotic government. It
will be no alleviation that these powers will be exercised by a
plurality of hands and not by a single one. One hundred and
seventy-three despots would surely be as oppressive as one. Let those
who doubt it turn their eyes on the republic of Venice. As little
will it avail us that they are chosen by ourselves. An elective
despotism was not the government we fought for, but one which should
not only be founded on free principles, but in which the powers of
government should be so divided and balanced among several bodies of
magistracy as that no one could transcend their legal limits without
being effectually checked and restrained by the others. For this
reason the convention which passed the ordinance of government laid
its foundation on this basis, that the legislative, executive and
judiciary departments should be separate and distinct, so that no
person should exercise more than one of them at the same time. But no
barrier was provided between these several powers." It was this
defect, this lack of barriers, that Jefferson lamented.
Public-domain text, read in full here on John Shaqi.
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