Front Page Titles (by Subject) TWO: The Foundation of the Doctrine - Constitutionalism and the Separation of Powers
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TWO: The Foundation of the Doctrine - M.J.C. Vile, Constitutionalism and the Separation of Powers 
Constitutionalism and the Separation of Powers (2nd ed.) (Indianapolis, Liberty Fund 1998).
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The Foundation of the Doctrine
The modern view that there are three functions of government, legislative, executive, and judicial, evolved slowly over many centuries, and it is important to realize that the categories which today form the basis for much of our thinking about the structure of government and its operation are the result of a gradual development of ideas that reflects problems concerning the nature of government, first clearly perceived in seventeenth-century England, and still today in process of being worked out. These “functions” of government reflect the response to particular problems in Western societies, and the demand for particular sets of values to be embodied in institutional structures and procedures. The roots of these ideas are to be found in the ancient world, where thinkers wrestled with similar problems, although not unnaturally their responses were somewhat different. Nevertheless the ideas of the ancients about the nature of law, and about the means of controlling power in civil societies, provided much of the basic material to which writers in later ages were to turn for ammunition in the great battles over the control of the machinery of the State.
There is an essential connection between the notion of government according to law and the concept of the functions of government. This connection forms the basis of the concern with function down through the ages, and is the explanation of the persistence of this concept in spite of the many attacks made upon it. Government according to law presupposes at least two distinct operations, the making of law, and putting it into effect. Otherwise we are left with a formless and unstable set of events which gives no basis for a constitution, or in the Greek context, for a moderate government. Thus Aristotle divided political science into two parts: legislative science, which is the concern of the law-giver, and politics, which is a matter of action and deliberation, or policy; the second part he subdivided into deliberative and juridical science.1 The major division here between legislation and action was not the modern distinction between legislative and executive, for the Greeks did not envisage the continuous or even frequent creation of new law which is implicit in the modern view of the legislative function. The work of a divinely-inspired legislator who set the foundations of a legal system might need to be amended from time to time to meet new conditions, but this must be done only infrequently and with great caution, for frequent change could lead to the undermining of the general respect for law.2 When he distinguished the three elements in every constitution which the good legislator must consider, Aristotle described them as the deliberative element, the element of the magistracies, and the judicial element.3 The function of the deliberative element here did have some relation to the modern notion of the legislative function, for Aristotle described it as being dominant in the enacting of laws, and being concerned with common affairs, but this must be seen within the general view of the nature of legislation mentioned above. Furthermore, the deliberative element was also concerned with what we should call judicial and executive functions.
When we turn from the idea of distinct functions to the view that these should be entrusted to distinct groups of people, we find little to support it in Aristotle. It is true that in the Constitution of Athens, attributed to him, the impropriety was stressed of the execution by the council of a citizen who had not been tried in a law-court,4 but this was a matter of attributing certain tasks to the proper agency, a matter of due process, rather than the assertion of a doctrine of the separation of persons. In fact the guiding principle of the Athenian Constitution, the direct participation of all citizens in all functions of government,5 was directly opposed to any such doctrine. Thus Aristotle asserted that “Whether these functions—war, justice and deliberation—belong to separate groups, or to a single group, is a matter which makes no difference to the argument. It often falls to the same persons both to serve in the army and to till the fields”; and more specifically, “The same persons, for example, may serve as soldiers, farmers and craftsmen; the same persons again, may act both as a deliberative council and a judicial court.”6 Thus the major concern of ancient theorists of constitutionalism was to attain a balance between the various classes of society and so to emphasize that the different interests in the community, reflected in the organs of the government, should each have a part to play in the exercise of the deliberative, magisterial, and judicial functions alike. The characteristic theory of Greece and Rome was that of mixed government, not the separation of powers.7
The greatest contribution of ancient thought in the sphere in which we are concerned, was its emphasis upon the rule of law, upon the sovereignty of law over the ruler. It emphasized the necessity of settled rules of law which would govern the life of the State, give it stability and assure “justice for equals.” “He who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast.”8 This emphasis upon law, upon the importance of settled rules, was essential to the thought of the Greeks, for they were deeply convinced of the importance of making proper arrangements for the way in which the State should go about its business. Constitutional provisions had for them a real significance in determining the impact of the government upon the citizen, and were not, as some modern writers seem to suggest, of little importance in determining the outcome of political situations. As a corollary of the rule of law was the assertion, in both Greek and Roman thought, of the generality of law. Aristotle insisted that “law should be sovereign on every issue, and the magistrates and the citizen body should only decide about details”;9 “law can do no more than generalize.”10 The same attitude was expressed by the Roman rule in the code of the XII Tables that no law may be passed against an individual.11 But if the law can deal only with generalities, then there must be provision for giving discretion to those who have to apply the law to individual cases, or who have to make decisions on issues on which the law-giver, because of the generality of the language he must use, was unable to pronounce.12 As we have seen above, the distinctions drawn here by Aristotle do not correspond exactly with the distinction between the legislative and executive functions defined in later ages, but they do deal with the difference between making a general rule on the one hand, and judging particular instances, on the other. When the conception of law as a relatively unchanging pattern was later replaced by the idea of a system of law subject to human control, then the basis of a twofold division of the functions of government was ready to hand.
The connection between modern theories of law and sovereignty and the emergence of the concepts of the legislative, executive, and judicial functions of government is very close. The idea of an autonomous “legislative power” is dependent upon the emergence of the idea that law could be made by human agency, that there was a real power to make law, to legislate. In the early medieval period this idea of making law by human agency was subordinated to the view that law was a fixed unchanging pattern of divinely-inspired custom, which could be applied and interpreted by man, but not changed by him. In so far as men were concerned with “legislation” they were in fact declaring the law, clarifying what the law really was, not creating it. Legislation was in fact part of the judicial procedure.13 Law was seen as the embodiment of the law of God in the custom of the community, and the actions of the King in his Council making formal statements of the law were seen as clarificatory acts. There could, therefore, be only one “function” of government—the judicial function; all acts of government were in some way justified as aspects of the application and interpretation of the law. The participation of Parliament in the promulgation of law was seen as an aspect of this judicial function of government; the High Court of Parliament advised the King upon the issues which came before him for decision, and declared the law as a court declares it, but in a more formal way, and usually, but not always, in general terms.14 Of course, this is not to say that there was a medieval or early modern view of a “judicial function” equivalent to our modern view of that function. Rather it was a way of looking at government which encompassed the whole range of governmental acts, whilst recognizing that there were differing agencies involved, differing tasks to be performed, and differing procedures to be employed. This recognition formed the basis for the lists of the “parts of sovereignty” that were later evolved by writers on government, and again at a later stage provided the starting-point for the formulation of new distinctions of the functions of government.
Authorities differ upon the extent to which this view carried over into the later medieval and early modern periods of English history. McIlwain argues that it is a view which prevailed, among lawyers at least, as late as the assembling of the Long Parliament,15 and certainly references to Parliament as a court are to be found throughout the seventeenth century. However, Professor Plucknett points out that as early as the first half of the fourteenth century the English judges frankly faced the fact that law was being made by statute, and that their decisions created generally applicable rules. There was, however, no clear distinction drawn between legislative and judicial activities, nor did they work out anything which resembled a theory of law or legislation.16 Certainly the idea of the creation of new law by Parliament was well understood in the seventeenth century, although the vocabulary of an earlier age persisted. A manual of parliamentary practice of 1628 stated the position thus:17 “In this Court of Parliament, they doe make new positive Laws or Statutes, and sometimes they inlarge some of them.” The author then observed that “the Judges doe say that they may not make any interpretation against the express words of the Statute.”18 By the time of the English Civil War it is clear that one of the things which is being contended for is a “legislative power” to make or unmake the positive laws of England. Nevertheless, the fundamental conception of the government as an instrument for distributing justice persisted, for this was in fact still the major aspect of government from the point of view of the citizens. Thus when in the seventeenth century the distinction between the legislative and executive “powers” was more clearly formulated in the context of the battle between King and Parliament, it was as subdivisions of the basic judicial function of government that these two “powers” were seen. Even in 1655 Sir Henry Vane still saw the legislative and executive powers as elements of the “supreme judicature or visible sovereignty.”19
The impulse for the emergence of a “legislative power” was given by the development of the command theory of law, the view that law is essentially the expression of an order or prohibition rather than an unchanging pattern of custom, a view that was reinforced by the emergence of the modern notion of sovereignty as the repository of the power to issue final commands. The basis for the idea of a division of functions existed in medieval thought, for the idea of function played an important part in the papal theory of the division of labour among the offices of the Church,20 and the foundation for a twofold division of government function was to be found in the division of royal power into gubernaculum and juridictio, the powers of government and jurisdiction.21 In the exercise of the former the King was unrestrained, but in the latter he had to abide by the law. The problem of the exact articulation of these aspects of the royal power, and the desire to limit the monarch by subjecting him to a law which he did not himself make, provided the basis for the evolution of a “legislative power” independent of the will of the King. As a corollary, there emerged the idea of an executive power in the King, by virtue of which he ensured that the law was put into effect. The doctrine of popular sovereignty, which finds its roots deep in the medieval period, provided the stimulus for the progressive clarification of the idea of a legislative function, the function of delineating that law by which the ruler will be bound. The enunciation of the doctrine of sovereignty by Bodin sharpened the image of the power which was being contended. Reacting against the medieval view of the King as essentially a judge interpreting an unchanging law, a view which was still dominant in France in the sixteenth century, among lawyers at any rate,22 Bodin asserted that the monarch had the authority to give new laws to his people, and that this was the first and chief mark of sovereignty.23 Thus the stage was set for a seventeenth-century contest for the control of the “legislative power.”
The work of Marsilius of Padua in the fourteenth century shows clearly this connection between the emergence of the concept of the legislative and executive functions and the ending of the medieval approach to the nature of law. A little earlier, Aquinas had used the distinction, taken from Aristotle and Cicero, between the ruler’s functions of laying down the law and of administering the political community,24 but Marsilius went much further by placing the legislative power clearly in the people, and by rejecting the view that positive law must conform to a higher law. The legislative power thus becomes a genuine power to make laws, laws which are seen as the commands of the law-making authority. “The primary and proper efficient cause of the law,” said Marsilius, “is the people . . . commanding or determining that something be done or omitted with regard to human civil acts, under a temporal pain or punishment.”25 This power to command meant that, by authority of the people, the laws must “undergo addition, subtraction, complete change, interpretation or suspension, in so far as the exigencies of time or place or other circumstances make any such action opportune for the common benefit.”26 This essentially modern view of law led Marsilius to make a distinction between the legislator and the ruler, but a distinction which was still cast in a medieval mould. For Marsilius still saw the over-all function of government as judicial, the settlement of disputes,27 but he distinguished the “parts” of the State in a way that was quite different from that of earlier writers. Marsilius in fact provided a transition, from the classification of the parts of the State by a mere echoing of Aristotle, to a classification of government functions which forms the basis of modern thought, and which remained essentially intact until the time of Montesquieu.28
Initially Marsilius restated Aristotle’s “parts of the State”—the agricultural, the artisan, the military, the financial, the priestly, and the judicial or deliberative, and emphasized the distinction between the priestly, the warrior, and the judicial parts and the others, the former being parts of the State “in the strict sense.”29 But then, having clarified his view of law and the role of the people as the effective legislative body, Marsilius switched to a classification of government functions, although one still related to Aristotle’s analysis of political science in the Ethics.30 “The primary efficient cause [which establishes and determines the other parts or offices of the State] is the legislator; the secondary, as it were the instrumental or executive cause, we say is the ruler through the authority granted to him for this purpose by the legislator.” The execution of legal provisions is effected more conveniently by the ruler than by the entire multitude of citizens, said Marsilius, “since in this function one or a few rulers suffice.”31 Marsilius had a clear distinction of functions in mind, and he placed them in distinct hands, but his concern was with the division of labour on grounds of efficiency, not with an attempt to limit the power of government by setting up internal divisions; he was not, therefore, directly concerned with the “separation of powers” as we have defined it.32
An essential point about the use of the term executive by Marsilius, and its use by most writers until the end of the seventeenth century, is that Marsilius meant by this essentially what we should describe as the judicial function, the function of the courts headed by the ruler, which put the law into effect. He did not distinguish between the judicial and the executive functions, and indeed the idea of a separate executive function is a relatively modern notion, not being fully developed until the end of the eighteenth century. Marsilius saw the legislative and “executive” functions as branches of the over-all judicial function. This usage becomes extremely important in the seventeenth century, when the idea emerged of placing distinct functions in separate hands for the purpose of limiting the government. Although, as we shall see, the roots of the idea of a judicial “power” distinct from the executive go a long way back into seventeenth-century England, nevertheless the dominant view of the division of government functions remained a twofold division into “legislative” and “executive.” The modern notion of an executive power distinct from the machinery of law enforcement through the courts, could hardly be envisaged in an age when almost the only impact of government upon the ordinary citizen was through the courts and the law-enforcement officers. The “executive power” meant, then, either the function of administering justice under the law, or the machinery by which the law was put into effect. Bishop John Poynet, in 1554, expressed this conception very clearly in his Short Treatise of Politicke Power. Writing of the authority to make laws and of the power of the magistrates to execute them, he commented that “lawes without execution, be no more profitable, than belles without clappers.” James Harrington in 1656 defined the “executive order” as that part of the science of government which is styled “of the frame, and course of courts or judicatories,”33 and Algernon Sidney, writing as late as 1680, defined the executive function in terms which we should today consider purely judicial. He divided government between “the sword of war” and “the sword of Justice.” “The Sword of Justice comprehends the legislative and executive Power: the one is exercised in making Laws, the other in judging controversies according to such as are made.”34 Milton wrote of the need for the execution of law by local county courts so that the people “shall have Justice in their own hands, Law executed fully and finally in their own counties and precincts,”35 and in 1656 Marchamont Nedham defined those who held the executive power as the constant administrators and dispensers of law and justice.36
It is not clear how far seventeenth-century writers included in the “executive power” aspects of the government machine other than the courts, or included ideas about those functions of government which we should today label “executive” or “administrative,” rather than “judicial.” Certainly many writers mention non-judicial officials and non-judicial functions of the prince. In 1576 Bodin had listed nine major “powers of sovereignty,” including the power to declare war or peace, to coin money, and to tax,37 and in ensuing years similar lists were provided by other writers. Sir Walter Ralegh in producing his list made a distinction between judges and other “magistrates,” such as “lieutenants of shires, marshals, masters of horse, admirals, etc.”38 However, the only consistent, abstract formulation of the “powers of government” was the same basic legislative-executive division that Marsilius had made. These lists produced by Bodin, Ralegh, Hobbes, and Pufendorf, among others, provided perhaps a more realistic and practical approach to the listing of the functions of government than the more abstract categories which finally triumphed under the influence of Locke and Montesquieu, but it was clearly an essential step in the development of the doctrine of the separation of powers for the “powers of government” to be consolidated into a few categories rather than to comprise an extensive list which would also include what we have called the “tasks” of government. Broadly speaking, then, we must see the seventeenth-century abstraction of the functions of government as a twofold one in which “executive” was generally synonymous with our use of “judicial,” and in fact in the latter part of the century the two words were used synonymously.39 Let us then turn, appropriately enough, to John Milton to sum up the dominant seventeenth-century view of the functions of government: “In all wise Nations the Legislative power, and the judicial execution of that power have bin most commonly distinct, and in several hands. . . . If then the King be only set up to execute the Law, which is indeed the highest of his Office, he ought no more to make or forbidd the making of any law agreed upon in Parliament; then other inferior Judges, who are his Deputies.”40
This is essentially a hierarchical view of government functions in which the over-all judicial function is divided into the legislative and “executive” functions. Such a view naturally tends to inhibit the development of the idea of a threefold division, with a judicial “power” and an executive “power” ranged alongside a legislative “power,” because in one sense judicial and executive are virtually synonymous, and in another sense the executive function is derived from and subordinate to the fundamental judicial power. It took a century, from the English Civil War until the mid eighteenth century, for a threefold division to emerge fully and to take over from the earlier twofold division. However, the notion of an independent “judicial power,” at any rate in the sense of the independence of the judges, goes back beyond the seventeenth century, and during the English Civil War the basis was laid for a threefold division which never quite managed fully to materialize. The need for independent judges had, of course, been emphasized in the sixteenth century, by George Buchanan in 1579,41 and by Richard Hooker who asserted that the King ought not to be the judge in cases of felony or treason, because in such cases he is himself a party to the suit.42 In the seventeenth century both Philip Hunton and Sidney, among others, asserted the need for an independent judiciary, but the view that there were three distinct “powers” of government seems to have emerged during the English Civil War.
At this time there was a great deal of discussion both about the position of the judges, and (rather more) about the judicial powers of the two Houses of Parliament. Thus in 1647 Henry Ireton argued that “the two great powers of this kingdom are divided betwixt the Lords and the Commons, and it is most probable to me that it was so that the judicial power was in the Lords principally . . . the legislative power principally in the Commons.”43 A tract of 1654 demanded a form of government in which Parliament would refrain from the exercise of that “jurisdictive power” which they had taken upon themselves or their committees for “the judgement of particular causes concerning mens persons and estates,”44 and the Humble Petition and Advice of 1657 placed limits upon the exercise of judicial power by the “other House.”45 The problem of the “judicial power” clearly agitated men’s minds, and the well-known division of legal writs into original, judicial, and executive provided some sort of analogy for the situation which faced them. In 1649 John Sadler used the analogy of the writs to develop a threefold category of government functions, legislative or original, judicial, and executive: “If I may not grant, yet I cannot deny, Originall Power to the Commons, Judiciall to the Lords; Executive to the King.”46 In 1657 the most effective use of the analogy was made by George Lawson who also formulated the threefold legislative, judicial, and executive division of functions and argued it out to a much greater extent than Sadler.47 The use of these terms by Sadler and Lawson was, however, far from the modern usage. They saw the judicial and executive functions, respectively, in terms of judgement, and the carrying out of the sentence of the Court, and in this connection it is interesting to note that for this reason both placed the judicial function before the executive, as is only logical, whereas in the later threefold division of the functions of government it is usual to arrange them with the executive second and the judicial last.
A rather more remarkable attempt to refashion the pattern of thought about the functions of government was made in a work dated 1648, entitled The Royalists Defence, and attributed to Charles Dallison, Recorder of Lincoln, and a moderate royalist. Dallison made a clear distinction between the “soveraigne power of government,” which is in the King, and the authority to judge the law. “The Judges of the Realme declare by what Law the King governs, and so both King and people [are] regulated by a known law,”48 and he justified this division of functions on the ground that the judges are “unconcerned.” Dallison avoided the use of the term “executive power,” for he was in fact splitting the seventeenth-century executive function into two parts, the functions of governing and of judging. In addition, Parliament had the function of making the law, so he arrived at a threefold division of government functions very close to that which came to be generally accepted a century later. “It is one thing to have power to make Lawes, another to expound the Law, and to governe the people is different from both.”49 We shall return to this work when we come to look more closely at the other elements in the development of the doctrine of the separation of powers, but for the moment it is sufficient to note that the cauldron of the Civil War had hastened the evolution of the ideas of the functions of government and formed them into two main streams. The dominant conception was still the twofold division of executive and legislative which reflected an older tradition about the functions of government, but the first elements of a new basis for ideas about these functions were being developed. Although after the Restoration Locke adhered to the older tradition, it was with modifications, and the ideas of the Civil War were not lost, for the elements in Sadler, Lawson, and Dallison all reappear in the theory of the balanced constitution at the opening of the eighteenth century.
By the time of the English Civil War one of the fundamental elements in the doctrine of the separation of powers, an abstract classification of the functions of government into two or three categories, had been developed to a high degree under the impact of the contest between King and Parliament. However, something more was needed before the doctrine of the separation of powers could be fully developed, that is to say the idea that these functions must be placed in distinct hands, in those of separate people or groups of people. This idea did not spring into men’s minds from nowhere; they were led into it through the process of adapting the familiar, age-old theory of mixed government to the problems they faced, and finally, when they found this theory to be no longer relevant to their situation, they replaced it with the new ideas it had fathered. It is therefore to the theory of mixed government that we shall now turn our attention.
The theory of mixed government is logically quite distinct from the doctrine of the separation of powers, yet these two theories have been closely connected with each other over much of their history. The theory of mixed government is much the older of the two, as old as political theory itself, and it remained a part of English political thought well into the nineteenth century. The two doctrines are not merely logically distinct, but to a considerable extent they conflict with each other. The theory of mixed government was based upon the belief that the major interests in society must be allowed to take part jointly in the functions of government, so preventing any one interest from being able to impose its will upon the others, whereas the theory of the separation of powers, in its pure form, divides the functions of government among the parts of the government and restricts each of them to the exercise of its appropriate function. Furthermore the class basis of the theory of mixed government is overtly lacking from the doctrine of the separation of powers. But it would be quite untrue to say that the latter does not have any class bias. The theory of mixed government had as its central theme a blending of monarchy, aristocracy, and democracy, and, as we shall see, there is a tendency to equate these, in some stages of the development of the doctrine of the separation of powers, respectively with the executive, judicial, and legislative “powers.” The latter doctrine assumes that the legislature will, or may, be taken over entirely by the democratic element, and that checks upon “mob rule” will therefore have to be applied by branches of the government largely or wholly outside the legislature. The battle for the control of the “chief mark of sovereignty,” the legislative power, may be won by the proponents of popular rule, but there are methods of ensuring that this power is subjected to limitations, one of them being the maintenance of the bicameral system, another the decentralization of the government under a federal constitution, and the third the separation of functions among different agencies so that movements of popular opinion in the legislature can be slowed down by the other branches of government.
This is the “shift” which took place between the two doctrines, but of course it was not achieved overnight. The succession was effected extremely slowly, as slowly in fact as the success of “democracy” in the make-up of the legislature was recognized. In mid-seventeenth-century England, the later doctrine was quickly born and adopted in the revolutionary conditions which temporarily destroyed the monarchy and the House of Lords, but this was a situation too far ahead of its time to be maintained. The Restoration introduced a long period in which the two doctrines were combined in an amalgam which recognized the class element in the control of the legislative power. When democratic movements gained the ascendency the theory of mixed government dropped out, and the theory of the separation of powers became the major theory of constitutional government, but only rarely in its pure form. In the Constitution of the United States we find it combined with the idea of “checks and balances,” the old theory of mixed government stripped of its class connotations, and now in a subordinate role. The later history of the relationship between the doctrine and democratic theory became more and more involved as the twentieth century accepted the principle of democracy, only to find that the centre of power had again moved away from legislative bodies towards the executive branch.
Though the theory of mixed government is not logically connected with the theory of the separation of powers, the former theory provided suggestive ideas which formed the basis of the new doctrine. Both theories are concerned with the limitation of power by instituting internal checks within the government. The terminology of the “powers” of government came to be applied both to the representative organs of mixed government, and to the functionally divided agencies of the separation of powers. The threefold mixture of monarchy, aristocracy, and democracy was a particular case of a general theory of limited government, in which the people exercised a check upon the monarch, or some other combination of powers prevented the dominance of a single person or group.50 In the ancient world the theory of mixed government figured principally in the work of Aristotle, Plato, and Polybius. Plato emphasized the belief in moderation and compromise which is the basis of the theory. Too much power concentrated in one place, either in nature or in the State, leads to the “wantonness of excess”; only in the observance of the mean can arbitrary rule be avoided.51 The preservation of Sparta was the consequence of its constitution, which consisted of a dual kingship, a council of Elders, and the Ephors elected by lot, and was thus “compounded of the right elements and duly moderated.”52 Later Plato asserted that democracy and monarchy are the “two mother forms of states from which the rest may be truly said to be derived.” Both forms of these are required in some measure.53 He emphasized the basic element of the theory of mixed government—its frank recognition of the class basis of society. But the classes, with their potentially conflicting interests, must be harmonized through a constitutional structure ensuring that each class can play a part in the control of those decisions in which its interests will be affected.54
Aristotle criticized Plato’s formulation of the theory by insisting that we shall “come nearer the truth” if we seek to combine more than two of the basic forms in a State, for “a constitution is better when it is composed of more numerous elements,”55 although Aristotle himself wrote elsewhere of the best form of State as a combination of democracy and oligarchy.56 He placed even more emphasis than Plato upon the value of the mean in politics, and upon the need for each part of the State to have a proportionate share in government: “Proportion is as necessary to a constitution as it is (let us say) to a nose.”57 Indeed it is a criterion of a proper mixture of democracy and oligarchy that it should be capable of being described indifferently as either.58 Aristotle also made a closer examination of the class basis of the mixed constitution, stressing the moderating influence of a middle class, and equating the feasibility of establishing a successful mixed constitution with the existence of an extensive middle class in the State.59 Polybius, in his analysis of the Roman Republic, developed the theory to a greater degree than his predecessors, and, by adapting the theory to encompass the elected consuls of Rome as the “monarchical” element, he provided the pattern for the transformation of the theory of mixed government into a theory of checks and balances, in which the agencies of government might not all have a distinct “class” to represent, but might, of themselves, provide an institutional check within the government structure.60
The importance of the ancient theory of mixed government for our theme, therefore, is its insistence upon the necessity for a number of separate branches of government if arbitrary rule is to be avoided. This view of the “separation of agencies” was not based upon the efficiency to be achieved by the division of labour, nor upon the functions which are “proper” to different branches of the government. The various branches were expected to play a part in all the tasks of government, but their representative character enabled them to prevent the use of that power in ways which would be prejudicial to the interests they represented. As we have seen, this “separation of agencies” is an essential part also of the doctrine of the separation of powers. The theory of mixed government opposed absolutism by the prevention of the concentration of power in one organ of the State, and the doctrine of the separation of powers starts from the same assumption. The vitally important step in the emergence of the latter doctrine is the attribution of distinct functions to the agencies of government, and in this respect the critical difficulty of the transition from one to the other is that the three agencies of the mixed government, King, aristocratic assembly, and popular assembly, do not correspond to the executive, legislature, and judiciary in the doctrine of the separation of powers. The transition takes a long while in the development of the theory, and is the explanation of much of the confusion about the nature of the functions of government that we have to some extent already observed.
There are, therefore, two major steps to be noted in the transformation of this ancient theory into the modern doctrine of the separation of powers. First, the insistence that particular agencies should be restricted to particular functions. Second, the emergence of a recognition of an independent judicial branch, which will take its place alongside King, Lords, and Commons. The first of these is achieved in the seventeenth century, the second is fully attained only in the eighteenth. It is these developments we must now trace.
The ancient tradition of mixed government was transmitted to medieval Europe, was echoed and restated, and was used to support the view that royal power should be subjected to feudal and popular restraints. In the thirteenth century Aquinas reproduced the Aristotelian concept of mixed government as a regimen bene commixtum of monarchy, aristocracy, and democracy. He did so, however, in a very formal way, and the medieval references to the theory seem to have little depth or reality until in England the institutional and political developments provided a factual basis for the theory to work upon.61 With the development of representative institutions in England, however, the idea of the best system of government as a combination in which King, Lords, and Commons shared the power of government developed, until the theory of mixed government became, in seventeenth-century England, the dominant political theory of the age. In the late fifteenth century Sir John Fortescue saw three kinds of government: dominium regale, absolute monarchy, dominium politicum, republican government, and dominium politicum et regale, a mixed form, which was the pattern of English government.62 Bishop Poynet, in 1556, asserted that men had long judged “a mixte state” to be the best of all, and that where it had been established it had been the most stable form of government.63 Sir Thomas Smith, a few years later, saw the English system as a threefold mixture. The Commonwealth of England is “governed, administered, and manured by three sortes of persons”—the Prince, the gentlemen, and the yeomanry.64 However, neither Fortescue, Poynet, nor Smith was fired by the desire to limit the power of the monarch to the exercise of only one specific function of government. For it is this demand, the requirement that the monarch be limited to the execution of the law, which is the beginning of the doctrine of the separation of powers, and at the same time the beginning of the end for the doctrine of mixed government. At the end of the sixteenth century it was in France rather than in England that this demand seemed to be on the point of being formulated, for in France the extreme difficulties of the Huguenots were such as to stimulate such an approach. François Hotman, writing in 1573, insisted that the French system had historically been a mixed government, that the power of making laws had, till a century earlier, been entrusted to a “public annual council of the nation,” later called the three estates, and he seemed to be on the verge of demanding that the King be limited to the “administration of the Kingdom.”65 The authors of the Vindiciae contra Tyrannos were also striving towards a similar position.66
In mid-seventeenth-century England the theory of mixed government became a commonplace of political writers, until, indeed, in 1648 Sir Robert Filmer, himself the strongest opponent of the theory, could write: “There is scarce the meanest man of the multitude but can now in these daies tell us that the government of the Kingdome of England is a Limited and Mixed Monarchy.”67 Charles I made an acknowledgment of the doctrine in his reply to the Nineteen Propositions of 1642. It was at the height of the theory’s popularity that the attempt to make it fit the circumstances after 1641 brought forth a new and different theory, the separation of powers. The theory of mixed government was from the earliest times intended to provide a check to the exercise of arbitrary power by the balancing of the “powers of government” in a constitution. But before the intense political activity of the mid seventeenth century, the exact articulation of the elements of a system of mixed government had not been explored. The outbreak of open hostilities between King and Parliament prompted attempts by the protagonists of the theory to define the relative functions of the elements of the government. The failure in the sphere of practical politics of the attempt to find a workable compromise resulted in the creation of conditions in which mixed government seemed irrelevant, and the way was clear for the new doctrine.
The impact upon constitutional thought of the dispute between King and Parliament can be seen in the way in which two major theories of government, which were to act and react upon each other for the next two centuries, were formulated in the 1640’s and rapidly developed into impressive schools of thought. The theory of mixed government, which earlier had been rather vague and lacking in articulation, was refashioned in Charles I’s Answer to the Nineteen Propositions into the basis of the later theory of the balanced constitution. Published in 1642, some months before hostilities actually started, the Answer presented a combination of mixed government and a division of the tasks of government among its parts in such a way that they might each check the power of the others.68 At the same time Parliament’s supporters were evolving a theory of government that placed less stress upon mixed government, and which depended heavily upon an abstract formulation of the powers of government and the allocation of these functions, in fact the basis of the theory of the separation of powers.
The starting point in a discussion of the “transition” from the theory of mixed government to the doctrine of the separation of powers may begin with the work of Charles Herle, a supporter of the Parliamentary cause. Writing in 1642, Herle made quite explicit the scattered suggestions in the earlier literature that the three elements of the mixed constitution, King, Lords, and Commons, had a co-ordinate status.69 But did this mean that all three were co-ordinate in the exercise of all the functions of government? Dr. H. Ferne, Herle’s opponent, asked if Herle was asserting that the two Houses were co-ordinate in both the enacting and the execution of law.70 In reply Herle took the position that whilst the two Houses had a status superior to the King’s in the exercise of the legislative power, and the representative character of the Commons gave it the “largest share” of this power, it was above all in the execution of the laws that the Houses had a status co-ordinate with the King’s. Of what use, Herle asked, is the co-ordinate status of the Houses in the making of law, if they have not the power to ensure the execution of the laws?71 Herle, of course, was not proposing a division of functions into distinct hands; quite the reverse. He was using the ancient idea of a fusion of the functions of government, rather than their separation, in order to justify the action of Parliament in taking up arms against the King. However, the emphasis he placed upon the co-ordinate status of King, Lords, and Commons, was to be reflected in later writing, where the problem was to ensure that the person entrusted with the executive power was not merely a subordinate official but had a position and autonomy of his own. He was also one of the first to raise the basic problem of any theory which divides functions among agencies: if the legislature were restricted solely to passing legislation, what guarantee would it have that its commands would be properly carried out?
In 1643 one of the most competent of Parliament’s supporters, Philip Hunton, undertook in his Treatise of Monarchy to clarify the theory of mixed government and the relationships between the parts of the mixed State. Hunton was the most sophisticated and systematic of the supporters of mixed government in this period, working out in detail its differing categories, although it should be mentioned that he started from a belief in the indivisibility of the “power of magistracie.”72 Hunton took a rather different line from Herle’s, a line which led him much closer to a theory of functionally divided agencies of government. First, he established the difference between “mixed government” and a “mixed monarchy.” Governments can be simple or mixed, limited or absolute. Mixed governments are always limited governments, although the reverse is not true. The general term “a mixed State” is, however, only appropriate when “the highest command in a state by the first constitution of it is equally seated” in all three of the elements of the government.73 This, then, is broadly what Herle had been describing. However, a more stable State is likely if one of the three elements is “predominant,” and where this is so the predominant element “gives the denomination to the whole.” Thus England is a “mixed monarchy.”74 In such a mixed monarchy the sovereign power must be originally in all three elements, for this is the reason for the mixture, that “they might confine each other from exhorbitance.”75 Nevertheless, if it is to be a stable mixed monarchy, then there cannot be full equality in the three estates. “A power then must be sought wherewith the Monarch must be invested, which is not so great as to destroy the mixture; nor so titular as to destroy the Monarchy.”76
Hunton’s answer to this problem was to suggest a number of powers which, vested in the King, would give him this position of limited dominance. The first of these, and the most important, was the executive power. The “power of magistracie,” said Hunton, has two degrees; it is “Nomotheticall or Architectonicall and Gubernative or Executive.”77 The King can be made “head and fountain of the power which governs and executes the established laws, so that both the other States . . . be his sworn subjects, and owe obedience to his commands, which are according to established lawes.”78 The King is, then, to be the executive, but what of the legislative power? Hunton argued that in England the legislative (as well as the taxing) power is “mixed,” and that all three agencies of government must take part in the “making and authentick expounding of lawes,”79 but he did suggest that the King should suspend the use of his “negative voice” in legislation.80 Herle had made a similar demand, but this taken together with Hunton’s investing the King with the sole executive function, leads to a theory of the separation of powers and is the end of mixed government as formerly understood. Hunton intended this as a purely temporary measure, for elsewhere he was quite definite about the legislative role of the monarch, but this antagonism to the royal veto power was soon to swell into a demand for the abolition of all participation by the King in the process of legislation.
Hunton experienced difficulty with just those problems which were also to perplex later ages; for here we see emerging the first attempts to evolve that peculiarly English approach to the idea of sovereignty which has so often been misunderstood. In England the acceptance of the idea of a single source of sovereign power led to the concept of parliamentary supremacy, but this did not mean, and never has meant except during the reign of the Long Parliament, that the representative element of Parliament exercised an unrestrained power to carry out all the tasks of government. Parliamentary supremacy is not the same as gouvernement d’assemblée, for the “King-in-Parliament” has always been composed of a number of distinct elements with certain autonomous powers. There is a real sense in which, even today, the spirit of “mixed government” lives on in the British system of government, through the recognition of the autonomous position of the government in relation to the elected representatives of the people or of the political parties. In the seventeenth century Hunton attempted to formulate his own reconciliation between the idea of a single source of sovereign power and the need to divide authority between the King and the members of the legislature. He argued that the supreme power is either “the Legislative or the Gubernative,” but that the legislative is the chief of the two.81 The title of supremacy attaching to the King, he asserted, is fully justified by his being the sole fountain of executive power, whilst retaining a share of the legislative.82 Four years later Filmer was to maintain that by requiring the King to govern according to the law Hunton relegated him “from the legislative to the executive power only.”83 The argument that Hunton formulated, however, confused though it may be, is one of the basic elements in the constitutional theory which became firmly established after the Revolution of 1688–9. Locke and the theorists of the early eighteenth century faced exactly the same problem that Hunton had tackled, and basically their solution was the same as his, except that their emphasis was upon the supremacy of Parliament, whereas Hunton had looked for a formula to satisfy a “supreme monarch.”
Herle and Hunton were writing during the early stages of the Civil War, when it was thought that some such formula could be found; a formula which would leave the basic constitutional position of the monarchy unaltered. The emphasis upon the executive role of the monarch was intended to make sure that the law was supreme, an empire of laws and not of men, as Harrington was later to express it. But as time went on Charles’s intransigence gave rise to the demands for greater restraints upon royal power, and ever more insistent came the demand that the royal veto should be restrained, suspended, or abolished. In 1647 the House of Commons resolved that the King was bound “for the time being . . . by the duty of his office, to give his assent to all such laws as by the Lords and Commons assembled in Parliament, shall be adjudged to be for the good of the kingdom.”84 The Levellers and others put forward the view that the King’s coronation oath bound him to execute the law, and that his participation in the passage of legislation was a breach of this oath.85 Milton put it more strongly still. “We may conclude that the Kings negative voice was never any law, but an absurd and reasonless Custom, begott’n and grown up either from the flattery of basest times, or the usurpation of immoderat Princes.”86 Thus the demand that the King be the sole executive was transformed into the very different demand that he be solely concerned with execution.
The idea that the King should be limited to the exercise of the executive function was now well understood. However, the momentous years of 1648 and 1649 introduced ideas which were to ensure that it was not merely a doctrine of undiluted legislative supremacy which was to emerge from the Revolution. It was no longer possible to see the problems of England as simply King versus Parliament. The divisions within the parliamentary camp were deep and serious. Presbyterians, Independents, and Levellers were deeply hostile to each other, and other sectarian divisions loomed ominously. The use of the power of Parliament by one group of its supporters to threaten other groups had shown to men who had previously seen only the royal power as a danger, that a parliament could be as tyrannical as a king. Men who had previously been Parliament’s strongest supporters became its strongest critics. Milton in his Character of the Long Parliament, probably written in the late 1640’s but not published until 1681, expressed bitter disappointment with the rule of the Presbyterians who dominated the Long Parliament;87 that Parliament governed the country by appointing a host of committees dealing with all the affairs of state, confiscating property, summoning people before them, and dealing with them in a summary fashion.88
The second stage in this development, therefore, was the realization that legislatures must also be subjected to restriction if individual freedom was not to be invaded; restricted not so much in the exercise of a genuinely legislative function, but in their attempts to govern and so to interfere with the lives and property of individuals who displeased the members of the legislature. Ireton expressed this distrust of legislatures in the Whitehall debates of 1649,89 and, from a different point of view, the authors of the Agreement of the People of 1648 demanded that the “Representatives intermeddle not with the execution of laws, nor give judgement upon any mans person or estate, where no law hath been before provided.”90 One bitter opponent of this aspect of Parliament’s activities was the Leveller leader, John Lilburne, who had come personally into conflict with Parliament and its committees. In a tract aimed at the Commons he proposed that “whereas there are multitudes of complaints of oppression, by committees of this House, determining particular matters, which properly appertains to the cognizance of the ordinary Courts of Justice . . . therefore henceforth, no particular cause, whether criminal or other, which comes under the cognizance of the ordinary Courts of Justice, may be determined by this House or any Committee thereof. . . .”91 In a later pamphlet directed against the Council of State he asserted that “the House itself was never (neither now, nor in any age before) betrusted with a Law executing power, but only with a Law making power.”92 It was true that Parliament had the power to set up courts of justice, but only “provided that the Judges consist of persons that are not members of their House, and provided that the power they give them be universal,” not a power directed at particular individuals.93 This is a new and vitally important element, which resulted from the experience of the Long Parliament during the Civil War. The assertion of the generality of law is thousands of years old, but this was something more. Not only was law to be couched in general terms, but also the legislature must be restricted to the making of law, and not itself meddle with particular cases. This was indeed a major step in the development of the separation of powers. The Levellers also made the same demand for the exclusion of placemen from the legislature which was to characterize the eighteenth century, and which is an essential aspect of the doctrine.
All the elements of the pure doctrine of the separation of powers were now present in the minds of the men who witnessed the struggle between King and Parliament, and who had come to fear the arbitrary rule of either. The idea of two or three abstractly-defined, inclusive functions of government was well known; the desire to place limits to the power of both King and Parliament was strong in the minds of men of very different points of view. All that was needed for the doctrine was the idea that the agencies of government should be restrained by each being confined to the exercise of its own appropriate function. We have already quoted Milton’s remark in the Eikonoklastes that in all wise nations the legislative and executive powers “have bin most commonly distinct and in several hands,”94 and in The Rights of the Kingdom John Sadler, later Master of Magdalene College, Cambridge, argued that the three Estates should be “more exactly bounded in their severall sphers.”95 The three powers of government, legislative, judicial, and executive, “should be in Distinct Subjects; by the Law of Nature, for if Lawmakers be judges, of those that break their Laws; they seem to be Judge in their own cause: which our Law, and Nature it self, so much avoideth and abhorreth, so it seemeth also to forbid, both the Lawmaker, and the Judge to Execute. . . .”96 Sadler’s view of the executive function was, as we have seen, not our modern one, but in other respects his grasp of the principles of the doctrine of the separation of powers was clear.
However, important as are the sources of the ideas we have examined, so far all of them are fragmentary, with little coherent theoretical development or elaboration. Probably the first person to undertake an extended treatment of this kind was Charles Dallison, if he is indeed the author of the remarkable work The Royalists Defence of 1648. Dallison not only had a threefold division of functions in mind, but the whole of this work was devoted to the argument that a satisfactory system of government can result only from the placing of these distinct functions of government in separate hands so that “every one is limited, and kept within his owne bounds.”97 His work may be seen as an attempt to combine the theory of mixed government as it had been set out in Charles I’s Answer to the Nineteen Propositions, with the emphasis upon the more abstract and thoroughgoing separation of functions which had been stressed by parliamentary writers. It represented perhaps the clearest and most comprehensive statement that had then been made of the relationship between separating the functions of government, placing them in different hands, and balancing the parts of government. Dallison argued that the King must retain the “sovereign power of government” but he must not have the authority to judge the laws. “The Judges of the Realme declare by what law the King governs, and so both King and people [are] regulated by a known law.”98 Neither does Parliament have the power to determine individual points of law. It is neither fit for such work, nor was it instituted for that purpose. “Those things . . . are the office of the Judges of the Realme.”99 Parliament’s function is “only to make new laws,”100 whilst the King is “our onely Supream Governour.”101 Dallison echoed Hunton’s argument that the King’s supremacy is assured by his having the sole executive authority, using the rather strange argument that “neither the making, declaring or expounding the Law, is any part of Sovereignty.”102
There are thus three agencies of government, each with its appropriate function. Furthermore, it is because the branches of government retain “their own proper authority without clashing with, or encroaching each upon other” that both King and subjects are preserved in their just rights.103 “Whilst the Supremacy, the Power to Judge the Law, and the Authority to make new Lawes, are kept in severall hands, the known Law is preserved, but united it is vanished, instantly thereupon, and Arbitrary and Tyrannicall power is introduced.”104 Dallison’s objection to the concentration of power in the hands of Parliament was just as strong as his objection to the King’s governing outside the known law. Attempts by Parliament to govern are as inefficient as they are improper.105 The Parliament has established a tyrannical regime by attempting to govern, and to judge individual causes. The only remedy is to restore the King, and the “foresaid Authorities are returned into their proper places, and againe divided into severall hands.” At once “every Court, Assembly and person, not only enjoyes its own Authority, but is limited within its own bounds; no man then is permitted to be both Judge and Party.”106
The Royalists Defence was, then, a lengthy and well-developed plea for the separation of powers, but it was not the pure doctrine as we have defined it, for in one major respect it adhered to the theory of mixed government. The King was to retain the authority with the assent of the two Houses, to alter the law and to make new laws.107 The King, therefore, played an essential part in the exercise of the legislative function, although Dallison for the most part, but not consistently, wrote of him as if he were outside, and separate from the Parliament. In this respect Dallison’s book is closely related to the theory of the balanced constitution of the eighteenth century, except that he had a clear view of the independence of the judges, exercising a quite distinct function of government, whereas the later writings are much less clear upon this point.
By the year of the execution of Charles I, then, the doctrine of the separation of powers, in one form or another, had emerged in England, but as yet it was still closely related to the theory of mixed government. It had been born of the latter theory but had not yet torn itself away to live an independent life. For a short time, in the years of the Protectorate, it did achieve this independent existence, although in an atmosphere so rarified and unreal that it soon returned to its parent for succour. The execution of the King, and the abolition of the House of Lords, destroyed the institutional basis of the theory of mixed government, and any justification of the new constitution which was to be framed for England would have to rest upon a different theoretical basis. In 1653 the Instrument of Government instituted England’s first written Constitution, and in the official defence of this constitution, entitled A True State of the Case of the Commonwealth, we find the doctrine of the separation of powers standing on its own feet, claiming to be the only true basis for a constitutional government. The Cromwellian Constitution embodied, on paper at least, a separation of persons and functions. The supreme legislative authority was vested in a Lord Protector and the people assembled in Parliament;108 but although this seemed to echo the old theory of mixed government in relation to the legislative function, the role of the Protector in legislation was limited to a suspensive veto of twenty days. If after that period the Lord Protector “hath not consented nor given satisfaction,” then, upon a declaration of Parliament, bills became law without his consent.109 Thus, formally, the legislative function was placed squarely in the hands of Parliament. However, the Protector was given the power to pass ordinances between the sittings of Parliament, and in practice this gave him the power to rule without Parliament’s prior consent. Article II of the Instrument provided that “the exercise of the chief magistracy and the administration of the government . . . shall be in the Lord Protector, assisted with a council.” The Protector was given only a limited power of dissolution, provision was made for the automatic calling of Parliaments every three years, even if the Protector failed to issue the summonses, the great officers of state were to be chosen with the approbation of Parliament, and the Parliament did not have the power to alter the fundamental structure of the Constitution.
‡The broad outlines of the Instrument reflect, therefore, the earlier dissatisfaction with both a tyrannical King and a tyrannical Parliament, and set up a legislature and an executive, each with a degree of independence of the other, each with its proper function. The major aspect of the Instrument that clashed with the doctrine of the separation of powers was the position of the Council of State, for this body was entrusted with a part in the exercise of the executive “power,” but there was nothing to prevent its members being drawn from among the members of the legislature. Major-General John Lambert, who is usually credited with being the foremost author of the Instrument, was both a member of the first Parliament of the Protectorate, and of the Council of State. This reflects a general tendency during the seventeenth century and the early eighteenth century to concentrate upon the head of the executive in discussions of the separation of functions, and to pay less attention to the people who served him.
The defence of the Instrument, published in 1654, no doubt had official backing, for Cromwell shortly afterwards made an approving reference to it in a speech before Parliament.110 Although the title-page refers to “divers persons” as the source of the work, its authorship was contemporaneously attributed to Marchamont Nedham,111 a journalist who was apparently prepared to write in support of any cause if the price was right, or if circumstances made it prudent. Undoubtedly the work paints a rosier picture of the Instrument than the facts warranted, but this is not our main concern. We are interested rather in the justification that was put forward, and the ideas upon which it was based.
The tract commenced with a justification of the Army, first in the execution of the King for his tyrannous ambitions, and second in dissolving the Parliament, which contrary to their hopes had “wholly perverted the end of Parliaments,” largely by their “unlimited arbitrary decisions at Committees.”112 The recently proposed Biennial Bill would, if passed, not merely have kept the supreme authority in Parliament constantly in session, but would have offended against “the grand secret of liberty and good government” by placing in the same hands the supreme power of making laws and of putting them into execution, “which placing the legislative and executive powers in the same persons, is a marvellous in-let of corruption and tyranny.”113 The secret of liberty is “the keeping of these two apart, flowing in distinct channels, so that they may never meet in one (save upon some transitory extraordinary occasion).”114 The combination of these two powers in a single person is tyranny enough, but the consequences are abundantly more pernicious when they are in the hands of an assembly, for such a multitude can more easily escape responsibility. The ancient wisdom of the English had been to “temper” their government by placing the supreme law-making power in the people in Parliament, and entrusting the execution of law, “with the mysteries of government,” in the hands of a single person and his council.115
Each of the two arms of government, the writer insisted, must be limited to its proper sphere. The continuance of military government would have been dangerous because it would have left both the instituting and executing of the law “to the arbitrary discretion of the souldier,” who would be apt to execute his own will in place of law, without check or control.116 On the other hand Parliament should not meddle in the executive sphere. It is contrary to the nature of Parliament, whose great work is to make laws, to take upon itself the administration of law and justice.117 “The ordinary preventive physick in a state against growing maladies, is execution and administration of law and justice, which must be left to its officers.”118 Parliaments were never intended to execute the law, “it being the peculiar task of inferior courts.”119 In future the government would be managed by an elected person, so that all power, both legislative and executive, will flow from the community.120
This, then, was no mere casual reference but a well-developed theory of government. It did not have the finesse of Dallison’s work of six years before, but in part this is because it was a starker doctrine, closer in many ways to our ideal type of the pure doctrine. The analysis is, it is true, in terms of two functions of government only, with little or no realization of the importance of a judiciary independent of the executive. It was almost completely stripped of the paraphernalia of mixed government; only in the final paragraph of the fifty-two-page document is a passing appeal made to the ancient theory. The author then in his final words returned to his main theme, emphasizing in the clearest possible way the theory of government upon which he relied: “And whereas in the present Constitution, the Legislative and Executive Powers are separated. . . .” However, no consideration was given to the dual role the Council was to play in this Constitution, as the adviser to the Protector in the exercise of the executive function, and as the only control by Parliament over the Protector. This work came very near indeed to a purely negative view of the constitutional checks necessary to prevent arbitrary rule. The complicated inter-relationships which characterized the work of Montesquieu a century later were almost completely absent.
In 1656 Marchamont Nedham published The Excellencie of a Free State, in which the same argument was developed in words that echo the True State of the Case. This is a full-length work on government and the discussion of the separation of powers is no longer the central peg upon which the book hangs, but is merely one of the principles upon which it says a free state must be built. “A fifth Errour in Policy hath been this, viz. a permitting of the Legislative and Executive Powers of a State, to vest in one and the same hands and persons.”121 The reason is evident, for if the law-makers “should be also the constant administrators and dispensers of law and justice, then (by consequence) the people would be left without remedy in case of injustice.”122 The book was not without importance, for it was reprinted in France during the Revolution and was, according to John Adams, well-known in colonial America.123 In the same year Harrington published his Commonwealth of Oceana, in which he formulated a separation of functions among the agencies of government. The Senate, composed of an aristocracy of merit, must propose the laws, which are then to be affirmed or rejected by the people or their representatives. Harrington continued: “Wherefore as these two orders of a Common-wealth, namely the Senate and the People are Legislative, so of necessity there must be a third to be executive of the Lawes made, and this is the Magistracy.” Thus the “Common-wealth” consisted of “the Senate proposing, the People resolving, and the Magistracy executing.”124 In contrast, however, to the political theory of the Instrument of Government, Harrington’s emphasis lay upon mixed government, and for all its revolutionary overtones, was more in sympathy with Charles I’s Answer, or Hunton’s Treatise, than with Nedham’s True State of the Case of the Commonwealth. Nevertheless, in a petition of 1659, which Toland attributes to Harrington, the vocabulary of the mid-seventeenth-century doctrine of the separation of powers was clearly deployed,125 and, indeed, by that year, when the future constitution of England was being so hotly debated, the doctrine of a twofold separation of powers had become a commonplace.126
Thus, some thirty years before the publication of Locke’s Second Treatise, the doctrine of the separation of powers had been evolved as a response to the problems of the Civil War and the Commonwealth, and had, in its seventeenth-century formulation reached a high degree of development. But the Protectorate failed and the Instrument of Government itself had failed long before the end of the Protectorate, being replaced by a much more monarchical constitution, the Humble Petition and Advice of 1657. With the Restoration there was a return to the theory of mixed government as the basic constitutional pattern of England, but from then on the doctrine of the separation of powers could not be ignored; it had become a part of the intellectual climate of Western constitutionalism. A few years later John Locke’s treatment of the “powers of government” must be seen in the light of an assumption that his readers were well acquainted with such a doctrine, rather than as if he were hesitantly presenting a new concept of government.
The doctrine of the separation of powers was well developed by the end of the Protectorate, but it was a relatively unsophisticated doctrine, the bare essentials without much appreciation of the complex inter-relationships of a system of government the functions of which are divided up among several agencies. During the ensuing century it was to be combined with its related theories to produce a much more complex theory of constitutionalism, but in the mid seventeenth century it suffered from the fact that no real attempt was made to work out the arrangements needed to ensure that deadlock did not result from the separation of functions in separate hands. In this respect the doctrine reflected the realities of politics under the Protectorate. The systems of influence or party, which made a set of functionally divided institutions workable at a later date, could not operate in the bitterly divided England of the period just before the Restoration. It had been proved that neither a Protector nor a Parliament could govern alone, and that neither could develop the necessary relationships with the other that would have made the system workable. The politics of deadlock, implicit in the pure doctrine of the separation of powers, made people look to a version of the traditional system of government, but a version in which the elements of the newer doctrine must have a place.
[1. ]Ethics, VI, 8, translation by J. A. K. Thomson, London, 1955, p. 181.
[2. ]Politics, II, 8, ed. by Sir Ernest Barker, New York, 1958, p. 73; and Plato’s Laws, Book VII.
[3. ]Ibid., IV, 14, p. 189.
[4. ]The Constitution of Athens, Ch. 45, ed. by K. von Fritz and E. Kapp, New York, 1950, p. 118.
[5. ]G. M. Calhoun, Introduction to Greek Legal Science, Oxford, 1944, pp. 32–33.
[6. ]Politics, IV, 6, p. 166; see also Plato’s Laws. See, however, the discussion by Aristotle of the division of functions among different groups on the grounds of the division of labour: Politics, VII, 9, pp. 300–3.
[7. ]See Kurt von Fritz, The Theory of the Mixed Constitution in Antiquity, New York, 1954, p. 205; and Sir Paul Vinogradoff, Outlines of Historical Jurisprudence, Oxford, 1922, Vol. II, p. 128.
[8. ]Politics, III, 16, p. 146.
[9. ]Politics, IV, 4, p. 169.
[10. ]Ethics, V, 10, p. 167.
[11. ]See H. F. Jolowicz, Historical Introduction to the Study of Roman Law, Cambridge, 1954, p. 25.
[12. ]Ethics, V, 10, pp. 166–7; Politics, III, 16, pp. 145–8.
[13. ]Ewart Lewis, Medieval Political Ideas, London, 1954, Vol. I, pp. 4–5.
[14. ]Ibid., Vol. I, p. 4; and C. H. McIlwain, The High Court of Parliament and Its Supremacy, New Haven, 1910, pp. 109–10.
[15. ]Op. cit., p. 110. See also A. von Mehren, “The Judicial Concept of Legislation in Tudor England,” in P. Sayre (ed.), Interpretations of Modern Legal Philosophies, New York, 1947, p. 751.
[16. ]T. F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century, Cambridge, 1922, pp. 22–25 and 31.
[17. ]The Priviledges and Practice of Parliaments in England, 1628, p. 42.
[18. ]Ibid., p. 43.
[19. ]A Healing Question . . . , London, 1655, in Somers Tracts, Vol. VI, pp. 310–12.
[20. ]W. Ullmann, Principles of Government and Politics in the Middle Ages, London, 1961, pp. 66–67.
[21. ]C. H. McIlwain, Constitutionalism, Ancient and Modern, Ithaca, 1947, pp. 77–82.
[22. ]W. F. Church, Constitutional Thought in Sixteenth-Century France, Harvard, 1941, Ch. IV.
[23. ]Jean Bodin, The Six Bookes of a Commonweale, the Knolles edition of 1606, ed. by K. D. McRae, Harvard, 1962, p. 159.
[24. ]T. Gilby, Principality and Polity, London, 1958, p. 292.
[25. ]Defensor Pacis, translated by A. Gewirth, Marsilius of Padua: The Defender of Peace, New York, 1951, Vol. II, p. 45.
[27. ]Gewirth, Vol. I, p. 173. Note that it is Marsilius’ origin in the Italian republic of Padua which gives him the background for the development of a view which is so in advance of the rest of European thought. See C. W. Previté-Orton, “Marsiglio of Padua, Part II. Doctrines,” English Historical Review, Vol. XXXVIII, No. 149, Jan. 1923, pp. 14–15, and Gewirth, Vol. I, p. 229.
[28. ]For Marsilius’ influence on later thought see Previté-Orton, op. cit., pp. 14–15; and Gewirth, Vol. I, pp. 303–5.
[29. ]Politics, VII, 8, p. 299; Defensor, I, 5.
[30. ]For a full discussion of this point see Gewirth, Vol. I, pp. 229–33.
[31. ]Defensor, I, 15.
[32. ]See Gewirth, Vol. I, p. 235.
[33. ]The Commonwealth of Oceana, London, 1656, p. 27.
[34. ]Discourses Concerning Government, London, 1698, III, 10, p. 295.
[35. ]The Ready and Easy Way to Establish a Free Commonwealth, in Works, Amsterdam, 1698, Vol. II, p. 795.
[36. ]The Excellencie of a Free State, London, 1656, p. 212.
[37. ]Six Bookes, I, 10.
[38. ]The Prince, or Maxims of State, in Somers Tracts, Vol. III, p. 286.
[39. ]See for example Sidney’s use of the terms, Discourses, III, 10, p. 296.
[40. ]Eikonoklastes, London, 1649, p. 57.
[41. ]De Jure Regni apud Scotos, English edn. of 1680, p. 50.
[42. ]The Laws of Ecclesiastical Polity, VIII, 7, ed. by B. Hanbury, London, 1830, Vol. III, p. 317.
[43. ]In the Putney Debates; see Puritanism and Liberty, ed. by A. S. P. Woodhouse, London, 1950, p. 119.
[44. ]The Declaration of the Free and Well-Affected People of England, in Memorials of the English Affairs, 1682, p. 601.
[45. ]Article 5. S. R. Gardiner, Constitutional Documents of the Puritan Revolution, Oxford, 1906, p. 452.
[46. ]Rights of the Kingdom, London, 1649, p. 86. F. D. Wormuth describes this as a “political sport,” but in view of the context in which it occurs and the other writings which occur at this time it is difficult to see it quite in this light. See The Origins of Modern Constitutionalism, New York, 1949, pp. 60–61.
[47. ]An Examination of the Political Part of Mr. Hobbs his Leviathan, London, 1657, p. 8. This work is more fully discussed in Ch. 3.
[48. ]The Royalists Defence, p. A2.
[49. ]Ibid., p. 70.
[50. ]See Otto von Gierke, Natural Law and the Theory of Society, ed. by Sir Ernest Barker, Boston, 1957, pp. 238–9; C. M. Walsh, The Political Science of John Adams, New York, 1915, pp. 25–26; and M. L. Levin, The Political Doctrine of Montesquieu’s Esprit des Lois: Its Classical Background, New York, 1936, pp. 127–30.
[51. ]Laws, III, The Dialogues of Plato, translated by B. Jowett, 3rd edn., Oxford, 1892, V, 72.
[52. ]Ibid., V, 73.
[53. ]Ibid., V, 75.
[54. ]Laws, IV; ibid., V, 98.
[55. ]Politics, II, 6, pp. 60–61.
[56. ]Ibid., IV, 9, p. 178.
[57. ]Ibid., V, 9, p. 232.
[58. ]Ibid., IV, 9, p. 177.
[59. ]Ibid., IV, 11, pp. 180–4.
[60. ]For a full discussion of Polybius see K. von Fritz, The Theory of the Mixed Constitution in Antiquity, New York, 1954. Von Fritz points out that it is impossible to separate the interests of the consuls from those of the aristocracy at the time with which Polybius is concerned.
[61. ]In this connection note Janet’s remark that Aquinas reproduces the theory of mixed government “sans la bien comprendre.” (Janet, Histoire de la science politique, Paris, 1887, Vol. II, p. 376.) Wormuth describes the doctrine during the medieval period as “a literary tradition which only occasionally . . . touched the political life of the time.” (Op. cit., pp. 30–31.)
[62. ]The Governance of England: The Difference between Absolute and Limited Monarchy, ed. by C. Plummer, Oxford, 1885.
[63. ]A Short Treatise of Politicke Power, Strasbourg, 1556.
[64. ]De Republica Anglorum, ed. by L. Alston, Cambridge, 1906, pp. 46–47. Smith wrote the book in the 1560’s but it was first published posthumously in 1583. See also J. W. Allen, A History of Political Thought in the Sixteenth Century, Part II, Ch. X, especially the references to Sir John Hayward and Sir Thomas Craig.
[65. ]Franco-Gallia, 2nd English edn., London, 1721, pp. 64–65 and 77.
[66. ]See G. P. Gooch, English Democratic Ideas in the Seventeenth Century, New York, 1959, p. 17.
[67. ]The Anarchy of a Limited or Mixed Monarchy, London, 1648, p. 1. On the importance of the theory in this period see Z. S. Fink, The Classical Republicans, Evanston, 1945.
[68. ]On the Answer see Corinne Comstock Weston, English Constitutional Theory and the House of Lords, 1556–1832, London, 1965, pp. 23 ff.
[69. ]C. Herle, A Fuller Answer to a Treatise Written by Dr. Ferne.
[70. ]Conscience Satisfied . . . , Oxford, 1643, pp. 13–14.
[71. ]An Answer to Dr. Ferne’s Reply, London, 1643, pp. 29–30 and 35.
[72. ]A Treatise of Monarchy, London, 1643, p. 5.
[73. ]Ibid., p. 25.
[76. ]Ibid., pp. 25–26.
[77. ]Ibid., p. 5.
[78. ]Ibid., p. 26.
[79. ]Ibid., p. 46.
[80. ]Ibid., p. 79.
[81. ]Ibid., p. 26.
[82. ]A Vindication of the Treatise of Monarchy, London, 1644, pp. 38–39.
[83. ]Op. cit., p. 24.
[84. ]S. R. Gardiner, History of the Great Civil War, 1642–1649, London, 1901, Vol. IV, p. 9.
[85. ]Wildman in the Putney debates of 1647: see Puritanism and Liberty, p. 109; also John Selden, An Historical and Political Discourse of the Laws and Government of England, edn. of 1688/9, p. 53.
[86. ]Eikonoklastes, London, 1649, p. 53.
[87. ]For a discussion of the authenticity and dating of this short work see Fink, op. cit., Appendix B, pp. 193–4.
[88. ]See E. Jenks, The Constitutional Experiments of the Commonwealth, Cambridge, 1890, pp. 4 and 11–12.
[89. ]Puritanism and Liberty, p. 172.
[90. ]Foundations of Freedom: or an Agreement of the People, London, 1648, article VI, 6.
[91. ]The Ernest Petition of Many Free-born People, reprinted in A Declaration of Some Proceedings, London, 1648, pp. 28–29.
[92. ]The Picture of the Councel of State, 1649, p. 6.
[93. ]Ibid., p. 8.
[94. ]Op. cit., p. 57.
[95. ]Op. cit., p. 86.
[96. ]Ibid., p. 87.
[97. ]The Royalists Defence, p. 126.
[98. ]Ibid., p. A2.
[99. ]Ibid., pp. 47–48.
[100. ]Ibid., p. 56.
[101. ]Ibid., p. 60.
[102. ]Ibid., p. 70.
[103. ]Ibid., p. 63.
[104. ]Ibid., p. 80.
[105. ]Ibid., pp. 84–85.
[106. ]Ibid., p. 136.
[107. ]Ibid., p. 60.
[108. ]Art. I.
[109. ]Art. XXIV.
[110. ]His Highness Speech to the Parliament, Jan. 1655, p. 20.
[111. ]In Sighs for Righteousness . . . , London, 1654, p. 24, the authorship of The State of the Case is attributed to “Mercurius Politicus, the more than supposed author thereof.” This was the name of the newspaper which Nedham edited at the time, and was his pseudonym.
[112. ]A True State of the Case of the Commonwealth, London, 1654, p. 9.
[113. ]Ibid., p. 10.
[115. ]Ibid., pp. 10–11.
[116. ]Ibid., p. 22.
[117. ]Ibid., p. 17.
[118. ]Ibid., p. 23.
[119. ]Ibid., p. 25.
[120. ]Ibid., pp. 28–29.
[121. ]The Excellencie of a Free State, London, 1656, p. 212.
[122. ]Ibid., p. 213.
[123. ]P. Zagorin, A History of Political Thought in the English Revolution, London, 1954, pp. 124–5.
[124. ]Op. cit., p. 15.
[125. ]The Humble Petition of Divers Well-affected Persons . . . , London, 1659, pp. 7–9.
[126. ]See for example: Lilburn’s Ghost . . . , London, 1659, pp. 5–6; A Declaration of the Parliament Assembled at Westminster, London, 1660, pp. 4–10; A Needful Corrective or Ballance in Popular Government, p. 5; XXV Queries: Modestly and Humbly . . . , London, 1659, p. 13.