Last evening at Wheelwrights, with Cushing, Pemberton and Swift. Lt. Govr. Oliver, senseless, and dying, the Governor sent for and Olivers Sons. Fluker [Flucker] has laid in, to be Lieutenant Governor, and has perswaded Hutchinson to write in his favour. This will make a difficulty. C[hief] J[ustice] Oliver, and Fluker will interfere.
Much said of the Impeachment vs. the C.J.—and upon the Question whether the Council have the Power of Judicature in Parliament, which the Lords have at home, or whether the Governor and Council have this Power?1
It is said by some, that the Council is too precarious a Body to be intrusted with so great a Power. So far from being independent, and having their Dignities and Power hereditary, they are annually at the Will, both of the House and the Governor, and therefore are not sufficiently independent, to hold such Powers of Judicature over the Lives and Fortunes of Mankind. But the answer is this, they may be intrusted with the Powers of Judicature, as safely as with the Powers of Legislature, and it should be remembered that the Council can in no
Case here be Tryers of Fact as well as Law, as the Lords are at home when a Peer is impeached, because the Council are all Commoners and no more. The House of Representatives are the Tryers of the Facts and their Vote Impeaching is equivalent to a Bill of Indictment, and their Vote demanding Judgment is equivalent to a Verdict of a Jury, according to Selden. Is not the Life, and Liberty and Property of the subject, thus guarded, as secure as it ought to be, when No Man can be punished, without the Vote of the Rep[resentative]
s of the whole People, and without the Vote of the Council Board if he can without the Assent of the Governor.
But it is said, that there is no Court of Judicature in the Province, erected by the Charter, only. That in the Charter a Power is given to the general Court to erect Courts. That General Court has not made the Governor and Council a Court of Judicature, and therefore it is not one, only in Cases of Marriage and Probate.
To this it may be answered by enquiring, how the Council came by their Share in the Legislative? The Charter says indeed that the General Court shall consist of Governor, Council and House, and that they shall make Laws, but it no Where says, the Council shall be an integral Part of this General Court—that they shall have a Negative Voice.
It is only from Analogy, to the British Legislative, that they have assumed this Importance in our Constitution.
Why then may they not derive from the same analogy, the Power of Judicature?
About 9 at Night I step'd over the Way, and took a Pipe with Justice Quincy and a Mr. Wendel of Portsmouth. Mr. Wendell seems a Man of Sense and Education, and not ill affected to the public Cause.