Front Page Titles (by Subject) THREE: The Theory of the Balanced Constitution - Constitutionalism and the Separation of Powers
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THREE: The Theory of the Balanced Constitution - 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 Theory of the Balanced Constitution
The doctrine of the separation of powers was born and developed in the particular circumstances of the Civil War and the Commonwealth, but with the Restoration, such an extreme theory, which had no necessary place for a King with a share in the legislative power, nor any place for a House of Lords, would of necessity have to be replaced with a view of the nature of government more suited to the restored monarchy. The materials for such a refurbishing of constitutional theory lay to hand. The old doctrine of mixed government, temporarily cast aside, could be rehabilitated. But it could never again be held in the simple undifferentiated version of the pre–Civil War era. The battle between King and Parliament had resulted in two fundamentally important modifications of this doctrine. First, the King, although he still had powerful and important prerogatives, must acknowledge the supremacy of the law, and, therefore, of the legislature. It is true that he formed an essential part of the legislature, and could at least have a veto upon the proposed laws to which he would have to conform, but the principle of legislative supremacy was, by the end of the seventeenth century, a firmly established fact of English government and of English political thought. The installation by Parliament of William and Mary was an impressive confirmation of the extent of the power of the legislature. Furthermore, it was a legislature which clearly made and unmade the law of England, in spite of the archaic language sometimes used to describe its composition and procedures. Second, the basic ideas of the doctrine of the separation of powers (although, of course, it was not known by that name) were part of the general currency of English political thought. The “pure doctrine” had, naturally, to be rejected, but its main points were not forgotten. They had to be woven into the constitutional theory, which became a complex amalgam of mixed government, legislative supremacy, and the separation of powers. Potentially contradictory though these ideas might be, it was the achievement of the years between 1660 and 1750 that they were blended into a widely accepted theory of English government—the theory of the balanced constitution. This theory dominated the eighteenth century in England and formed the basis for the views Montesquieu put forward in his chapter of the Esprit des Loix on the English Constitution.
A major problem in the reconciliation of the theory of mixed government with the doctrine of the separation of powers lay in the fact that, in its initial formulations during the Commonwealth period, the latter had been expressed in the vocabulary of the prevailing legislative-executive division of functions, whereas the theory of mixed government, which dealt principally with the agencies of government, propounded a threefold division into King, Lords, and Commons. Charles I in his Answer to the Nineteen Propositions had associated a distribution of the tasks of government between its parts, with control over the exercise of power, distinguishing also between the making of laws, and “the Government according to these laws” which was entrusted to the King. At the same time Charles had stressed the importance of the “judicatorie power” of the House of Lords. On the other hand, the development by the anti-royalists of a theory of government which was independent of the theory of mixed government had been based largely upon the two abstractly-defined functions of legislating and executing. If the ancient theory of mixed government was now to be closely associated with some form of abstract functional differentiation, then at least three functions were necessary. The gradual emergence of the judges as an independent branch of government merely complicated matters, for there was no place for them in the theory of mixed government, and they constituted a fourth agency. Nevertheless, the idea of an autonomous “judiciary power” continued to develop on the basis of the discussions of the judicial functions of Parliament, and particularly of the Lords, which had figured so large in the mid seventeenth century. It is the irony of this period, therefore, that the emergence of separate judicial and executive “powers” was not associated very closely with the establishment of the independence of the judges, formally achieved in 1701 with the Act of Settlement, but rather the judicial function came to be associated with the House of Lords as a final court of appeal and as the court in which impeachments should be tried. The requirements of the theory of mixed government virtually demand this solution. The importance of this aspect of the problem can be seen in the work of the Reverend George Lawson, produced just as the Protectorate was dying.
Lawson’s work is extremely important in the understanding of the way in which the old twofold division of government functions was broken up into three categories. It is a complicated story. The old view of the “executive power” was fundamentally a conception of the carrying of the law into effect through the machinery of the courts, with the ruler at the head of the system. Since Bodin there had been a clearer view of the fact that more than this was involved in government, and clearly there was a pressure for a reformulation of the “powers” of government. Lawson drew upon the idea of a judicatory power in the Lords, upon the analogy of the judicial writs that Sadler had used, and upon the idea of “government,” the power of the sword, which Dallison had developed, and which had, of course, a long history, reaching back to the medieval notion of gubernaculum. In 1657 and 1660 George Lawson published two important works on politics, in which he developed the threefold division of the functions of government. “There is a threefold power civil, or rather three degrees of that power. The first is legislative. The second judicial. The third executive.”1 But Lawson acknowledged that the term “executive power” was used in two quite distinct senses. He formulated two “acts of Majestie.” These were legislation and the execution of laws made.2 This was the traditional division of powers. But then he distinguished the two senses of execution. The second act of Majesty, he said, “is not the execution of the Judges sentence, for that follows as a distinct act of Jurisdiction.” Execution understood as an act of Majesty has a far wider connotation, reaching “all acts that tend to the execution of the Lawes.” As “Officers” and “Judgement” are essential to this, therefore the executive power comprehends both the right of appointing officers and the “administration of justice.”3 The latter is the “Power of Jurisdiction,” and this he sub-divided again into, first, “acts of Judgement, more strictly so called,” which are the hearing and decision of causes upon evidence, and, second, execution. The latter includes the infliction of penalties, dispensations of judgement, suspension of execution, and pardons.4 “From all this it is evident,” said Lawson, “that all Jura Majestatis may be reduced to the Legislative, Judicial and Executive Power, if we understand Judicial and Executive in a larger sense, than they are commonly taken.”5 In his earlier work, Lawson had elaborated on the need for an executive power in this second sense. The supreme power to command presupposes three things—understanding, practical judgement, and an “executive power and a coactive force” that would ensure the obedience of the subject to laws and judgements made under them.6 In all government there must be a sword, which is “an outward coactive strength and force,” for “Legislation, Judgement and Execution by the Sword, are the three essential acts of supreme Power civil in the administration of the State.”7
Thus Lawson had split up the old “executive power” into two, and had given the name “executive” to that part of the functions of government concerned with the carrying out of judgements, rather than the carrying into effect of the law as a whole. He wrote of “execution by the sword” in a way which conjures up a picture of the headman’s axe. Thus he distinguished between two ways of viewing punishment; either “as defined by the judge on judicial evidence,” or “as inflicted by the minister of execution.”8 This was the power of punishing of which Pufendorf wrote a few years later in 1672, and which his French translator, Barbeyrac, rendered as le pouvoir coactif.9 The term “coactive power,” the power to coerce, which both Lawson and Barbeyrac use, had long had currency in both France and England. Lawson had developed, therefore, a new view of the functions of government, closer to the present-day view than the older twofold division, but still a long way from our present conception of the executive function, for he still saw it as essentially a step in the judicial procedure of applying largely penal laws. He also foreshadowed the division of the internal and external functions of the Crown that Locke made although he did not give them the status of separate “powers” of government. Like Locke, however, he insisted that these two aspects of the executive power should be in the same hands. “One and the same sword must protect from enemies without and unjust subjects within. For the sword of war and justice are but one sword.”10
Lawson’s views about the distribution of these functions among the agencies of government show a rather strange inconsistency. In his Examination of . . . Leviathan published in 1657 Lawson saw clearly the distinction between mixed government and a separation of functions among distinct agencies of government. He rejected the idea of a mixed monarchy, although there might be a mixture in the exercise of the three powers of government by which a monarch might be limited. It seemed to Lawson to be irrational to place the legislative power in three co-ordinate parties, each with a negative vote, for to do so would “retard all businesses.” It is much more “agreeable to the rules of reason” to place “the universal power originally in the general assembly without any negative, the judicial in the Lords, and the executive in the King.”11 In his Politica Sacra et Civilis, however, published in 1660, Lawson stated the view that the proper constitution of England was one in which the Jura Majestatis were not divided between King, Lords, and Commons but rather one in which “the personal Majesty primary was in King, Peers and Commons joyntly: in the whole assembly as one body.”12 Lawson here emphasized that the legislative power was jointly held by all three parts of the government, and portrayed this as the mark of a free State.13 It is difficult to make any assumptions about the relation of this change of view to the political events of the time, because the Politica, although published after the Examination of . . . Leviathan, was first written before the earlier published work, but may well have been revised for publication in 1660.14 Nevertheless, Lawson’s work does provide an important bridge between the ideas of the Civil War and Protectorate and the theory of the balanced constitution of the eighteenth century. He emphasized the supremacy of the legislative power—“the foundation and rule of all acts of administration”15 and all the major elements of that later theory are to be found in these two works, though by no means fully related in the eighteenth-century fashion. Thus Lawson’s main contribution to the transition to the modern conception of government lay in the relationships between mixed government and the separation of powers; the next step in the development towards the theory of the balanced constitution was the reconciliation of legislative supremacy with the ideas of the separation of powers. This step was taken by John Locke.
In discussions of the origin of the doctrine of the separation of powers the argument as to whether Locke or Montesquieu was the founder of the doctrine has dominated the scene. It is clear, however, that neither of these great thinkers can claim to be the source of the doctrine, although by incorporating it into their works in one form or another they placed the great weight of their influence behind it, and so gave it a place in political theory that otherwise it might not have attained. Part of the difficulty experienced in assessing the importance of the elements of the doctrine of the separation of powers in Locke’s work is that the antecedent thought upon this subject has not been given its full weight. Mr. Peter Laslett in his recent Introduction to Locke’s Treatises argues that Locke was not concerned to put forward a theory of the defence of liberty by the placing of distinct functions in separate hands, and that Montesquieu and the American Founding Fathers took him up in a sense he had not intended to convey.16 It is, of course, certainly true that Locke did not maintain the “pure doctrine” of the separation of powers, but combined it with other elements of his theory that modify it very considerably. However, if we approach the Second Treatise afresh, with the ideas of Hunton, The State of the Case, Lawson, and others, in mind, the role of the elements of the doctrine, all of which are to be found in Locke’s work, will be more clearly seen, for it is suggested that the ideas behind the doctrine are an essential part of his thought, and that there is no reason to believe that the Founding Fathers did not understand what he had to say.
The inter-relationship of the “powers” of government may be considered to be one of the central considerations of Locke’s theory. The crucial middle chapters of the Second Treatise are taken up with a discussion of this problem. Clearly the establishing of different categories of governmental authority and function is at the heart of what Locke has to say. He, like Marsilius, was concerned to establish over-all popular control of government, and to subject the magistrate to the law. At the same time, like Marsilius, he recognized that the day-to-day concerns of government cannot be dealt with efficiently by the people or their representatives. The demand that the ruler must conform to known established laws, and that these laws derive their authority from the consent of the people, leads inevitably to the old division of functions, the making of law and its execution. Locke found the origin of the legislative and executive authority in the powers man had in the state of nature. The first of these was to do whatever he thought fit for the preservation of himself and others within the limits of the Law of Nature. This was the origin of the legislative power.17 The second power man had in the state of nature was the power to punish crimes committed against the Law of Nature. This was the origin of the executive power.18 However, man’s inability effectively to exercise these rights led to the establishment of civil society. For the state of nature was deficient in certain crucial respects. There was no established, settled, known law, there was no known and indifferent judge with authority to determine differences according to the established law, and there was no “power to back and support the sentence when right and to give it due execution.”19 This threefold division of legislation, judgement, and execution is in conception an exact parallel of the categories George Lawson had developed, but for the most part in the earlier chapters of the Second Treatise Locke remained true to the older twofold division of functions and authority. Thus when the inconveniences of the state of nature give rise to civil society, said Locke, the legislative and executive powers are established: the former when men give up the power of doing whatever they think fit for their own preservation, to be regulated instead by the laws of the society; the latter by their giving up their power to punish others, in order to create a power to enforce these laws.20 Locke still saw the main function of the State as essentially judicial; the function of the legislature was to “dispense justice,” and the State was, therefore, the judge which had been lacking in the state of nature, so that, like earlier writers, Locke had an equivocal view of the judicial function. He emphasized very strongly the need for independent, impartial judges, and the distinction between giving judgement and the execution of judgement is clearly seen; but when at a later stage he made an all-inclusive statement about the “powers of government” he did not formulate a separate judicial power alongside the legislative and executive powers, or, more accurately, he did not divide the functions of the enforcement of the law into two independent “powers” as Lawson had done.
Locke’s most important modification of the conception of the functions of government lies in his attempt to divide up the “executive power” in a different way, that is to take into account the different nature of the internal and external responsibilities of the government. The power of making war and peace, and of entering into alliances, was the second mark of sovereignty, according to Bodin’s formulation,21 and Lawson and Sidney had both distinguished the sword of war from the sword of justice. Locke distinguished a third “power,” the federative power, “which one may call natural, because it is that which answers to the power every man naturally had before he entred into society.”22 The federative power contains the “Power of War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without the Commonwealth.”23 Locke made it quite clear that the distinction between the executive authority proper, and that part of it which he labels “federative,” is one of function only, for he immediately insisted that though they “be really distinct in themselves, yet they are hardly to be separated, and placed, at the same time, in the hands of distinct Persons.”24 Why then bother to make this distinction? The importance of what Locke has to say here has generally been overlooked, and the failure, particularly on the part of Montesquieu, to take up this point, has contributed greatly to the inadequacy of the classification of government functions. Locke was writing at a time when the supremacy of the legislature over the policy of the government in internal affairs was being established. The King must rule according to law. But Locke realized, as did others before him, that the control of internal affairs, particularly taxation, presented very different problems from those of external affairs. In matters of war, and of treaties with foreign powers, it was not possible, and still is not possible today, to subject the government to the sort of prior control that is possible in domestic matters. As Locke put it, “Though this federative Power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than the Executive.”25 Thomas Jefferson was later to say, “Foreign affairs is executive altogether,” for by then the distinction Locke had in mind was already almost lost. The point Locke insists upon is that in foreign affairs the government is not “executing,” it is not putting law into effect, it is carrying out a quite distinct function. This function is in the hands of the “executive,” which gets its name from one of its major functions, that of putting the law into effect, so that, as Locke says, the two functions “are always almost united”; but that they are very distinct and very different functions cannot be too strongly emphasized.
Thus far, then, the emphasis is upon the division of the functions of government, and the general approach is not very different from the doctrine stated by Marsilius three and a half centuries earlier. Like Marsilius, Locke argued that the legislative and executive powers should be placed in separate hands for the sake of efficiency, on the grounds of the division of labour. Laws which take only a short time to pass need “perpetual execution,” and therefore there must be an executive always in being.26 The representative nature of the legislature renders it too large, and therefore too slow, for the execution of the law.27 But Locke was writing shortly after the experiences of the Civil War and the Interregnum, and his view of the “separation of powers” went a great deal further than that of Marsilius of Padua. All that Locke writes is redolent of the experiences and writings of the period since 1640.
There is some confusion in the Second Treatise which makes it seem as if Locke was unconcerned about the form a government might take, arguing that the community might dispose of the powers of government in any way that it pleased. Yet there can be no doubt that Locke accepted the seventeenth-century version of the doctrine of the separation of powers, that the legislative and executive powers must be placed in distinct hands if liberty is to be preserved. He was quite emphatic about this. He asserted that “in all moderated Monarchies, and well-framed Governments” the legislative and executive powers are in distinct hands.28 He made this idea the central point for the rejection of absolute monarchy, because the absolute monarch, “being supposed to have all, both Legislative and Executive Power in himself alone, there is no Judge to be found, no Appeal lies open to any one, who may fairly, and indifferently, and with Authority decide.”29 The very nature of limited government required that these two functions and authorities should not be in one man’s hands. Nor was it safe to place both in the hands of a representative legislature. There must be a separate executive power, for, Locke frequently insisted, the legislature must only concern itself with the passing of general rules, and it should not be constantly in session. “Constant frequent meetings of the Legislative, and long Continuations of their Assemblies . . . could not but be burthensome to the People, and must necessarily in time produce more dangerous inconveniences.”30 If the legislature does not limit itself to the promulgation of standing laws, but assumes to itself the power to rule by “extemporary Arbitrary Decrees,” then the purpose of the creation of the State, the ending of the situation in which everyone is “Judge, Interpreter and Executioner” of the Law of Nature, is confounded.31 “In Governments, where the Legislative is in one lasting Assembly always in being, or in one Man, as in Absolute Monarchies, there is danger still, that they will think themselves to have a distinct interest from the rest of the Community.”32 Locke had that distrust both of Kings and of legislatures which made him unwilling to see power concentrated in the hands of either of them. For this reason, as well as for reasons of efficiency and convenience, he concluded that the legislative and executive powers should be in separate hands. “It may be too great a temptation to humane frailty, apt to grasp at Power, for the same Persons who have the power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage.”33 There could hardly be a clearer statement than this of the essence of the doctrine of the separation of powers.
However, the main objection to seeing Locke as a proponent of the doctrine, even in a modified form, is his emphatic assertion of legislative supremacy. “There can be but one supream power, which is the legislative, to which all the rest are and must be subordinate.”34 Is this view consistent with the doctrine, which not merely places the separate functions in distinct hands, but implies a certain co-ordinate status for the agencies of government? The complete subordination of one agency of the government to another is surely inconsistent with the doctrine. In fact Locke took great pains to make it clear that no single agency of government is omnipotent, that the two main branches of the government, the legislature and the executive, do have an autonomous status.
Part of the difficulty here arises simply from the ambiguity of the term “power,” which Locke used in two senses in this context, and also because he used “legislative” both as an adjective and as a noun. When he insisted upon the supremacy of the legislative power, Locke was clearly making two distinct points. First, the legislative function is prior to the executive, and the latter must be exercised according to the rules which result from the exercise of the former. This is, of course, an essential part of democratic theory. The supremacy of the law is certainly a part of the doctrine of the separation of powers. Second, Locke was saying that there is a clear sense in which the executive branch must be subordinate to the legislature. “For what can give Laws to another, must needs be superior to him.”35 Again this is perfectly consistent with the doctrine; the executive must not make laws, he must carry out the commands of the legislature. But this is as far as Locke goes. By legislative supremacy he does not mean that the executive is a mere office-boy, to be completely subordinated to the legislature in the exercise of his own functions. On the contrary the power of the legislature is itself limited to the exercise of its own proper functions.
Locke, and his contemporaries, argued that although the “legislative power” is supreme, even absolute, it is not arbitrary and unlimited. Locke listed four bounds to the extent of the legislative authority, and the most important of these for our purposes is his assertion that “the legislative, or supream authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authoris’d Judges.”36 This is exactly the objection to the activities of the Long Parliament that formed the basis of the distrust of legislatures in and after the Civil War. The nature of the legislative authority is tied to settled procedures of legislation, and does not extend to “extemporary dictates and undetermined resolutions.”37 The legislative authority is the authority to act in a particular way. Furthermore, Locke argued, those who wield this authority should make only general rules, “They are to govern by promulgated establish’d Laws, not to be varied in particular cases.”38 Locke stressed the fact that the legislative power was delegated from the people, and developed what was later to become in the United States the doctrine that the delegation of legislative power to non-legislative bodies is unconstitutional.39 Thus “legislative supremacy” for Locke was clearly very different from the right of a legislature to do anything it wished in any way that it wished.
The other side of the coin was the position of the executive agency. Locke emphasized the independent autonomous elements in the position of the executive. For this purpose he drew upon the same ideas that we found in the work of Philip Hunton. To be sure Locke did not place a great deal of emphasis upon the theory of mixed government. He acknowledged that the community may “make compounded and mixed Forms of Government, as they think good,”40 but for the most part his analysis was in terms of the relationships between the legislature and the executive, with little reference to the House of Lords. It was only when he discussed the “dissolution of government” that he assumed a legislature composed of a single hereditary person, an assembly of hereditary nobility, and an assembly of representatives, as a hypothetical framework for the system of government.41 Though he placed relatively little emphasis upon mixed government, Locke, with the restored monarchy in mind, gave a share in the exercise of the legislative function to the King, and it is here that he made use of Hunton’s ideas in order to raise the executive branch from a position of subordination to a status co-ordinate with the representative parts of the government.
In some commonwealths, says Locke, where the “Executive is vested in a single Person, who has also a share in the legislative; there that single Person in a very tolerable sense may also be called Supream.” Not because he has all the supreme power, “which is that of Law-making,” but because “he has in him the Supream Execution, from whom all inferiour Magistrates derive all their several subordinate Powers.”42 If the executive power is placed anywhere other than in a person who has a share of the legislative power, then the executive is “visibly subordinate and accountable to it.” The supreme executive power can only be co-ordinate (“exempt from subordination” in Locke’s words) if the person in whom that power is vested has also a share of the legislative power.43 In this way the Executive must agree to the laws to which he will have to conform, so that “he is no more subordinate than he himself shall think fit, which one may certainly conclude will be but very little.”44 This seemingly rather tortured argument can only be fully understood in the light of the events which had preceded the composition of the Second Treatise and of the writings of Hunton and others who had grappled with the problems of reconciling the “negative voice” of the King with his being subject to the law and limited to carrying it out. Locke was emphasizing that the King’s primary function is to execute the law, but that some way must be found of giving him a degree of independence that will place him on some level of equality with the two Houses of Parliament, and this his veto power will achieve. But Locke, like the Founding Fathers, saw the role of the “Executive” in this respect as essentially a negative one. The formal power of the King is to assent to, or withhold his assent from, legislation passed by the two Houses. His assertion of the co-ordinate status of the executive branch did not stop there. He devoted a chapter to the discussion of the prerogative which constitutes “the discretion of him, that has the Executive Power.”45 Legislators are not able to foresee, and provide for, all the things necessary for the good of the community. There are many things for which the law can “by no means” provide. Accidents may happen and strict adherence to the laws may do harm. For all these reasons the executive has “the Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it.”46 Only the flexibility that this discretion gives enables the proper execution of the laws and provides for changing conditions. The prerogative is ultimately under the control of the legislature, but it also includes a certain authority over the legislature, that is the right to determine the precise time, duration, and meeting-place of Parliaments.47
Locke’s theory of government, therefore, embodied the essential elements of the doctrine of the separation of powers, but it was not the pure doctrine. The legislature, in its widest sense, included the person who had the sole executive power. This did not mean, however, that there was a “fusion of powers” in the system. The basic division of function was clear. The King could not legislate, but only accede to legislation. The Parliament supervised the execution of the law, but must not itself execute. This was the basis of the theory of the balanced constitution, a theory which we may label as a partial separation of functions, for there was a sharing of the legislative authority, but a fundamental division of function between executive and legislature. The extent to which Locke may be described as “the Father of the United States Constitution” should now be somewhat clearer. Fundamentally this partial separation of functions is the theory upon which the relationship between the President and Congress was established. The legislative function was given to Congress, the executive function to the President, but the President had a veto over legislation. Apart from the fact that the President’s veto could be overridden, the major difference between the Americans and Locke on this point was that the Constitution gave the President a share of the legislative function without his being in the legislature, whereas in England the position of the King as a member of the legislative branch seemed to give a very different flavour to the relationship. But did it? If the King’s legislative function was confined to a veto, just as is the President’s, then whether he was formally a member of the legislative branch or not is unimportant. What is much more important is the power of King or President to influence or coerce the legislature. But neither Locke nor the Founding Fathers saw the executive as a “legislative leader” who would actively make the law in this way. Locke strongly condemned corruption in elections, and the use by the executive of bribery to ensure that legislators would support a particular point of view. “To prepare such an Assembly as this, and endeavour to set up the declared Abettors of his own Will . . . is certainly a great breach of trust. . . .”48 Nor should we see Locke as a theorist of cabinet government, for when he was writing, the idea of “a single person” as the executive dominated men’s minds. True, the “single person,” whether King or Protector, needed ministers and advisers, and subordinate magistrates, but it mattered little whether or not they were members of either House of Parliament, except in so far as the practical needs of government required. It was the single person who was to be subjected to control, not his subordinates, who were simply his instruments. The separation of persons did not much interest Locke, therefore, because the ministers’ membership of the legislature was not so important to him as their ability to control it by corrupt means. As the seventeenth century closed and the eighteenth began, however, the building up of the cabinet focused much more attention on this aspect of government; and the complete exclusion of officeholders, enacted in the Act of Settlement of 1701, if it had not been later amended, would have created a system of government in Britain not far removed from that which was later to be established in France, under the Constitution of 1791, as a consequence of deference to the idea of the separation of powers.
We have, then, already in Locke some of the major elements of the theory of balanced government, the sharing of the legislative authority, and the division of the functions of government. A major difference between Locke and the eighteenth-century writers, both in England and later in the United States, was his neglect of the judicial function. Locke did not attribute, as Lawson had done, an autonomous judicial function to the House of Lords. If we add this further dimension, plus a greater emphasis upon mixed government than Locke had given, the theory of the balanced constitution is almost complete; but this greater emphasis upon mixed government in eighteenth-century theory is important, for it is true to say that the doctrine of the separation of powers shows a much clearer influence in the work of Locke than it does in early eighteenth-century writings in England. In the latter the doctrine was subordinated to the theory of mixed government, whereas John Locke’s vocabulary and approach were much nearer those of his contemporaries who had personally experienced a system of government without King or House of Lords.
The relatively clear division of the functions of government that had been evolved in the later seventeenth century became somewhat blurred as the theory of the balanced constitution was established in the eighteenth. The strong emphasis upon the legislative and executive functions which we find in the work of Locke and his predecessors was closely related to the seventeenth-century need to set limits upon royal power, and to a lesser extent upon the power of Parliament; but with the relatively firm position achieved for the monarchy by the Revolution Settlement a completely new situation arose. The dominant political theory was a conservative one, a concern to maintain the “perfect balance” which it was believed had been achieved within the system of government. As Dean Swift wrote in 1701: “I see no other course to be taken in a settled state, than a steady constant resolution in those, to whom the rest of the balance is entrusted, never to give way so far to popular clamours, as to make the least breach in the constitution.”49 As a result there was a tendency to place the emphasis once again upon a list of the “parts of sovereignty” similar to those that had earlier been put forward by writers who were more interested in enumerating the contents of sovereign power than in settling limits to arbitrary rule. The fact is that a straightforward classification into two or even three “powers” of government was inadequate for the theory of the balanced constitution, for this was firmly based upon two propositions: first, that the legislative authority was shared between King, Lords, and Commons; second, that each of these had, in the words of John Toland, “their peculiar Priviledges and Prerogatives.”50 Thus there must be three distinct sets of “powers and priviledges” in addition to the legislative power. The parts of the sovereign power were parcelled out, therefore, among the three branches of government. Thus William Stephens in 1699 divided up the powers of government, other than the legislative, giving the executive power the power of making war and peace, and the power over the mint to the King, the “last appeal” in all cases of law to the Lords, and the power of raising money for the support of the government to the Commons.51
In the first half of the eighteenth century the theory of mixed government was in the ascendency again, more so, indeed, than ever before. But it was no longer the undifferentiated theory of mixed government that had preceded the Civil War. The ideas behind the separation of powers were added to it so that each element of the mixed government might wield an independent and co-ordinate authority that gave it the ability to check the exercise of power by the other branches. Thus the principle of functionally differentiated agencies became an integral part of the theory of the balanced constitution, and the exact articulation of their functions, and the interrelationships of the agencies and their members, became a major concern of political writers; for “in order to preserve the balance in a mixed state, the limits of power deposited with each party ought to be ascertained, and generally known.”52
This theory of the constitution was stated in 1701 by Sir Humphrey Mackworth in terms little different from those used by Charles I in 1642.53 The mixed constitution is essential to a happy and secure State, but in this constitution the legislative authority is shared, whilst the other functions of government are divided so that there is “a prudent distribution of power.”54 The three branches of the supreme authority must have “several particular powers lodged in them,” in order that each may prevent the encroachment of the others. The King must have the power of making war and peace, of command of the forces, of the calling and dissolving of parliaments, and of the appointment of all officers, ecclesiastical, civil, and military. The particular powers of the Commons are the levying of money and the impeachment of Ministers, while the Lords are entrusted with the “right of judicature.” Thus within the umbrella of the legislative power the three branches exercise separate powers that enable each of them to check the others.55 Each of these branches must be “limited and bounded by one another, in such a manner that one may not be allowed to encroach on the other.” This is the “infallible touchstone” of a happy constitution.56
This was the basic pattern of the early-eighteenth-century theory of the constitution, and, in spite of a very poor prose style, Mackworth set it forth faithfully. Discussions about the nature of the constitution took place within this framework, which was itself rarely questioned. Bitter differences of opinion arose, based upon the political issues of the day, but the arguments were couched in terms of the proper articulation of the parts of this constitution, in terms of the details of its “proper” working, not of its own adequacy, or inadequacy. The first half of the eighteenth century in England was not a period of great political writers, and we must look for these arguments about the constitution in the occasional pieces that resulted from the clashes over particular issues of the day. These reveal some of the problems of the theory of the balanced constitution, and of the mechanisms it involved, which were reflected later in the practical working of the Constitution of the United States.
The Peerage Bill of 1719 provoked perhaps the most interesting discussion of the nature of the balanced constitution and the role of the “partial separation of functions” in this constitution. The Peerage Bill represented an attempt by Whig leaders to “freeze” the size of the House of Lords at 235 peers, and as they at the time controlled the House of Lords, so to continue this control indefinitely. The royal prerogative to create new peers was to be limited to the replacement of peerages which became extinct through failure of issue. In this way the Whig leaders, who feared that the succession of the Prince of Wales to the throne would bring about a new, and to them unfavourable, attitude in the monarchy, hoped to retain control of the government; and perhaps by repealing the Septennial Act also to preserve the existing House of Commons.57 The proposal to limit the size of the House of Lords involved a considerable change in the royal authority and provoked a bitter altercation between rival pamphleteers concerning the extent to which this was compatible with the over-all philosophy of the British Constitution. Each side claimed that its position on the Peerage Bill was compatible with that constitution, and indeed that their view was the only one possible that would preserve the constitution. We are thus presented with an extensive discussion of the relationship between King, Lords, and Commons.58
The proponents of the Bill argued that the proposed alteration was necessary in order to give to the House of Lords that degree of independence of the monarch that would enable it to play its proper role as the moderator of disputes between the King and the Commons, and to act as a safeguard for the constitution should the other two branches unite against it. This role could only be safeguarded if the Lords were to be free from the threat of the creation of sufficient new peerages to swamp the existing majority. The existence of this threat rendered it a subordinate branch of the government, not a co-ordinate member as required both by the basic doctrine of mixed government and by the constitutional balance; for these required a threefold, not a twofold, division of governmental power if any one branch was to have a casting vote in disputes. In defence of the Bill Addison wrote: “It is necessary that these three branches should be entirely separate and distinct from each other, so that no one of them may lie too much under the influence and controul of either of the collateral branches.”59 The opponents of the Bill, led by Sir Robert Walpole, argued, however, that although each of the branches must be independent of the others, nevertheless it was essential that each branch should exercise a check to the power of the others, if the balance were to be maintained. If the King had the Commons’ power to raise money, then the monarchy would be absolute. If the power of dissolution were to be abolished, then the Commons would “devolve into an ill-contrived democracy,”60 and if the prerogative of creating peers were removed the Lords would become an unrestrained aristocracy. It was pointed out also that those who supported the independence of the Lords were not at the same time proposing a means by which the independence of the Commons would be safeguarded from control through “influence.” Steele summed up the fundamental objection to the complete independence of the branches of the government: “The unhappy consequence that must ensue would be that if any discord shou’d arise betwixt them, and each remain inflexibly resolv’d, here the constitution would want a casting power.”61 Thus deadlock would ensue, and would result in the resolution of the problem by violence, as no other means would be open.
It is not to be supposed that those who proposed the Peerage Bill really believed in the perfect independence of all three branches of the government, for their plan depended upon their being able to control the House of Commons through the system of influence; the discussion does reveal, however, the two possible approaches to the element of the separation of powers doctrine that we find embedded in this eighteenth-century view of the constitution. Given separate branches of the government exercising distinct but interlocking functions, or sharing in the exercise of a particular function, should the independence-of-each-other of these three branches be as great as possible, or should care be taken to ensure that the independence of each, although real, should be limited by powers in the others to prevent that independence from being allowed to wreck the operation of government altogether? This dispute was a curtain-raiser for the different views about the doctrine of the separation of powers, which were to characterize French and American attitudes later in the century. In the English political disputes of the first half of the eighteenth century the ideas of the doctrine of the separation of powers were applied to the theory of mixed government, and the result was a theory of checks and balances, which was very different from the earlier theory of mixed government; for in the latter the branches of the government were intended to share in the exercise of its functions. In the new doctrine each branch, it is true, was to share in the supreme legislative power, but each was also to have a basis of its own distinctive functions that would give it independence, and at the same time would give it the power to modify positively the attitudes of the other branches of government. In England this theory was applied to the institutions of a mixed monarchy, but it was quite capable of being adapted at a later date to a different set of institutions in which a monarch and a hereditary aristocracy played no part.
The great political issue of this period was, of course, the use of “influence” in politics, the bribery of electors and the corruption of members of the House of Commons in order to gain a majority favourable to the Ministry. This system of influence can be seen as the first of the links between the executive and legislative branches that formed the basis of the newly developing pattern of cabinet government. In an age when party allegiance alone was not a reliable means of ensuring the support of members of parliament for government policies, the system of influence provided a useful alternative. At the same time corruption can be seen as a means of subverting the balance of the constitution, of uniting powers that should be divided, and reducing to subordination in practice a branch of the government which in theory was co-ordinate in power. The eighteenth century was, therefore, both the age of the emergence of cabinet government, and the age of place-bills, proposed in an attempt to maintain the division between parliament and the executive. The success of the British Constitution can perhaps be attributed to the fact that in the end those who wanted to control the Commons and those who wished the Commons to be free of office-holders were both partially successful.
‡The greatest opponent of the system of corruption was Henry St. John, Viscount Bolingbroke, who for many years defended his concept of the balanced constitution against the “ministerial system” of Sir Robert Walpole. Bolingbroke was well acquainted with Montesquieu, and the latter undoubtedly gained much of his knowledge of the separation of powers doctrine from Bolingbroke and his writings.62 Walpole in his fight against the Peerage Bill had argued that too much independence in the branches of the government would create “a state of war, instead of a civil state,”63 and the later defenders of his own ministerial system argued that business could not be carried on or a government subsist “by several powers absolutely distinct and absolutely independent.”64 Bolingbroke reported the views of his opponents that corruption was necessary to “oil the wheels of government, and to render the Administration more smooth and easy.”65 These men, he said, present the constitution in a ridiculous and contemptible light. For them the constitution is “no better than a jumble of incompatible powers, which would separate and fall to pieces of themselves” without the cement of corruption.66 Bolingbroke’s statement of the essence of the constitution is remarkably clear:67
A King of Great Britain is that supreme magistrate, who has a negative voice in the legislature. He is entrusted with the executive power, and several other powers and privileges, which we call prerogative, are annex’d to this trust. The two Houses of Parliament have their rights and privileges, some of which are common to both; others particular to each. They prepare, they pass bills, or they refuse to pass such as are sent to them. They address, represent, advise, remonstrate. The supreme judicature resides in the Lords. The Commons are the grand inquest of the nation; and to them it belongs to judge of national expences, and to give supplies accordingly.
Bolingbroke emphasized that the division of powers between the three branches was an essential element in this structure. If the King had the legislative as well as the executive powers he would be absolute, and if either of the Houses had both we should have an aristocracy or a democracy. “It is this division of power, these distinct privileges attributed to the King, to the Lords and to the Commons which constitute a limited monarchy.”68 Thus a partial sharing and a partial separation of the functions of government among distinct bodies of persons was the fundamental characteristic of the English system of government. Bolingbroke then presented a defence of his view that the independence of the parts of the government, which is subverted by the system of corruption, was perfectly compatible with their “mutual dependency.” The parts of the government have each the power to exercise some control over the others, and they are therefore mutually dependent. This does not mean that they cannot and should not be independent of each other also. Indeed the independence of the branches is a necessary prerequisite to their being interdependent, for if it were not so then “mutual dependency is that moment changed into a particular, constant dependency of one part” on the others.69 Thus there would be no balance at all.
Here then, set out with great clarity, is the English mid-eighteenth-century amalgam of mixed government, legislative supremacy, and the separation of powers. Although playing a subordinate role in this theory, the ideas of the separation of powers doctrine are essential to it. The division of the functions of government among distinct agencies is there, but neither the functions nor the agencies follow the categories of the pure doctrine of the separation of powers, and in one vital function the authority is shared, not divided. The idea of the separation of persons is also very important, demanding at least a partial separation among the agencies of government. There were recurrent attempts to rid the Commons of office-holders and pensioners. In the Act of Settlement provision was made for the exclusion from the House of Commons of all office-holders, which, if it had not been repealed before coming into effect, would have made a very considerable difference to the British system of government. The idea of checks to the exercise of power, through the opposition of functionally divided agencies of government in distinct hands, is there, but it is a much more positive view of the necessary checks to the exercise of power than the pure doctrine envisaged.
From the point of view of the development of the pure theory of the separation of powers, therefore, the first half of the eighteenth century represented a retreat from the positions reached in the Civil War and in the work of John Locke. The more revolutionary theory had been assimilated by, and subordinated to, the older theory of mixed government, and the English attitude towards the Constitution was long to remain in this mould. But of the two doctrines, the doctrine of the separation of powers represented the thought of the future, the theory of mixed government the thought of the past. The ascendency of the doctrine of the separation of powers in America and on the continent of Europe was to come as the result of the work of Montesquieu, and on the wave of new revolutions which again swept away the assumptions underlying the theory of mixed government, just as they had been swept away in England, for a time at least, when Charles I laid his head upon the block.
[1. ]An Examination of the Political Part of Mr. Hobbs his Leviathan, London, 1657, p. 8.
[2. ]Politica Sacra et Civilis, London, 1660, p. 38.
[3. ]Ibid., p. 39.
[4. ]Ibid., p. 41.
[6. ]An Examination of . . . Leviathan, p. 7.
[7. ]Ibid., p. 8.
[8. ]Ibid., p. 114.
[9. ]Le Droit de la Nature et des Gens, VII, 4, translated by J. Barbeyrac, Amsterdam, 1712, Vol. II, p. 260. Pufendorf lists a number of other parts of sovereignty, but the first three are the legislative power, the power of punishing, and the judicial power, in that order.
[10. ]An Examination of . . . Leviathan, p. 8.
[11. ]Ibid., pp. 141–2.
[12. ]Politica, p. 95.
[13. ]Ibid., p. 97.
[14. ]See the Preface to the Examination of . . . Leviathan. A. H. Maclean argues that the date of the composition of Politica must have been 1657, or, more probably, “a year or two earlier.” (“George Lawson and John Locke,” The Cambridge Historical Journal, Vol. IX, No. 1, 1947.) However, the work might well have been revised in or after 1657. See, for example, the reference to the Humble Petition and Advice of 1657 on p. 109.
[15. ]Politica, p. 97.
[16. ]Two Treatises of Government, ed. by P. Laslett, Cambridge, 1960, pp. 117–19.
[17. ]Op. cit., IX, 128–9, and VII, paras. 87–88.
[18. ]Ibid., IX, paras. 128 and 130.
[19. ]Ibid., IX, paras. 124–6.
[20. ]Ibid., IX, paras. 130–1.
[21. ]Six Bookes, I, 10.
[22. ]Second Treatise, XII, para. 145.
[23. ]Ibid., XII, para. 146.
[24. ]Ibid., XII, para. 148.
[25. ]Ibid., XII, para. 147.
[26. ]Ibid., XII, para. 144.
[27. ]Ibid., XIV, para. 160.
[28. ]Ibid., XIV, para. 159.
[29. ]Ibid., VII, paras. 90–91.
[30. ]Ibid., XIII, para. 156.
[31. ]Ibid., XI, para. 136.
[32. ]Ibid., XI, para. 138.
[33. ]Ibid., XII, para. 143.
[34. ]Ibid., XIII, para. 149.
[35. ]Ibid., XIII, para. 150.
[36. ]Ibid., XI, para. 136.
[37. ]Ibid., XI, para. 137.
[38. ]Ibid., XI, para. 142.
[39. ]Ibid., XI, para. 141.
[40. ]Ibid., X, para. 132.
[41. ]Ibid., XIX, para. 213.
[42. ]Ibid., XIII, para. 151.
[43. ]Ibid., XIII, para. 152.
[45. ]Ibid., XIV, para. 159.
[46. ]Ibid., XIV, para. 160.
[47. ]Ibid., XIV, para. 167.
[48. ]Ibid., XIX, para. 222.
[49. ]Jonathan Swift, A Discourse of the Contests and Dissentions between the Nobles and Commons in Athens and Rome, 1701, in Works, London, 1766, Vol. III, p. 52.
[50. ]The Art of Governing by Partys, London, 1701, p. 31.
[51. ]A Letter to His Most Excellent Majesty King William III, 3rd edn., London, 1699, pp. 12–13.
[52. ]Swift, op. cit., Vol. III, p. 17.
[53. ]A Vindication of the Rights of the Commons of England, London, 1701.
[54. ]Ibid., p. 2.
[55. ]Ibid., pp. 2–3. Mackworth is at pains to restrict the use of the term, the “power of judicature,” to the Lords’ power to try impeachments.
[56. ]Ibid., p. 4.
[57. ]See E. R. Turner, “The Peerage Bill of 1719,” English Historical Review, Vol. 28, 1913, pp. 243–59.
[58. ]See the collection of pamphlets in the Bodleian Library entitled On the Peerage, 1719, Hope 8°, 766.
[59. ]The Old Whig, No. I, London, 1719, p. 2.
[60. ]The Thoughts of a Member of the Lower House, etc., London, 1719, p. 7.
[61. ]The Plebian, No. II, London, 1719, p. 11.
[62. ]See R. Shackleton, Montesquieu: A Critical Biography, Oxford, 1961, pp. 298–300.
[63. ]Some Reflections upon a Pamphlet called the Old Whig, London, 1719, p. 16.
[64. ]The London Journal, 4 July 1730, quoted by Shackleton op. cit., p. 299.
[65. ]A Dissertation upon Parties, 2nd edn., London, 1735, p. 119.
[66. ]Of the Constitution of Great Britain, in A Collection of Political Tracts, London, 1748, p. 251.
[67. ]Remarks on the History of England, London, 1743, p. 82.
[69. ]Ibid., p. 84.