Front Page Titles (by Subject) FIVE: The Matchless Constitution and Its Enemies - Constitutionalism and the Separation of Powers
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FIVE: The Matchless Constitution and Its Enemies - 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 Matchless Constitution and Its Enemies
A little over a century after the outbreak of the English Civil War two major theories of constitutionalism had been developed, closely related to each other in their evolution and their logic, yet capable of becoming the intellectual weapons of two different schools of thought, bitterly divided on the “proper” constitution of government. The theory of the balanced constitution had been evolved from the ancient theory of mixed government, which held, as the basis of its opposition to the exercise of arbitrary power, the belief that power could only be checked by the creation of a system of government in which the three classes of society were nicely balanced against each other. The transformation of the theory of mixed government into the theory of the balanced constitution, in which King, Lords, and Commons operated a complex system of checks and balances upon each other, demanded, however, a second theorem. This demand was met by the theory of the separation of powers, with the assertion that the functions of government could be divided up among the parts of the system in such a way that each branch could be limited to the exercise of its “proper function,” and the balance was completed by allowing each branch a limited right of interference in the functions of the others in order to prevent the encroachment of any one of them upon the function of any other. Thus the separation of powers was a subordinate but essential element in the theory of the balanced constitution. This subordinate theory was, however, capable of a life of its own, rejecting the class basis of the theory of the balanced constitution, and emerging as a theory of constitutionalism which, overtly at any rate, was based exclusively upon a functional approach to the division of power, recognizing only the right of the democratic branch of government in the making of law, relegating the “ruler” to a purely executive role, and, in so far as the aristocratic element was recognized at all, assimilating it to the judiciary.
These two theories, the balanced constitution and the separation of powers, formed a pattern of constitutional theory for the two hundred years following 1640, linked to each other in a curious relationship of mutual attraction and repulsion. The separation of powers was essential to the balanced constitution, for the notion of a balance necessarily assumed a basis of separation, but this necessity imposed upon the theory of the balanced constitution the burden of maintaining the source of its own destruction; for the separation of powers was eminently suited to the needs of the rising middle class, which was attacking monarchic and aristocratic power, but wished to maintain limits to the exercise of government power even when the government was dominated by an elected legislature. Thus movements towards a greater degree of democracy had the effect of stripping away the monarchical and aristocratic elements of the theory of the balanced constitution, leaving the separation of powers as the only basis of a theory of constitutional government. At each outbreak of democratic fervour the proponents of the balanced constitution were faced with the need to resist the onslaught of a theory they could not wholly reject, and to argue the merits of their complex theory of the constitution against the relatively simple and clear-cut theory of the separation of powers. Only when the evolution of new forms of republican and parliamentary government enabled the checks and balances of the balanced constitution to be applied to governmental systems largely divested of class characteristics (except in their franchise qualifications) was this fierce antagonism brought to an end.
It is to be expected that the conflict between these two constitutional theories would be at its height in a revolutionary situation where the middle class was engaged in wresting privileges from king and nobles, and that in such a situation the theory of the separation of powers would supersede the balanced constitution, and would be tested as a practical means of constituting a system of government. In the years following 1640 in England the first of these revolutionary confrontations took place with the evolution and temporary supremacy of the theory of the separation of powers over the theory of mixed government, only to give way to the establishment of the eighteenth-century theory of the balanced constitution. Over the next two hundred years four other revolutionary or potentially revolutionary confrontations were to take place in America, France, and Britain. The American Revolution, and the French Revolutions of 1789 and 1848 show the pattern very clearly. In England the latent revolution of the period 1770 to 1832 shows a similar pattern, and gives a hint of what might have happened in Britain had a revolution actually broken out. Of course the pattern is not exactly repeated in these five situations; there are important differences due to the exact developments in constitutional thought and the particular circumstances of each event, but the same fundamental elements of constitutional thought are present, and they are related to each other in the same general fashion. The period of constitutional thought from 1640 to 1848 has within it, therefore, an essential unity, a unity based upon the development in these three countries of the same social groups, cherishing similar values, and, in particular, holding the same view of the nature of political liberty.
The eighteenth century ended in England, as it had begun, with eulogies on the mixed and balanced constitution. Robert Nares in 1792, or Francis Plowden in 1794, had essentially the same constitutional theory as Swift or Mackworth in 1701.1 There is a stability, a changeless quality, about the dominant strands of English political thought in the eighteenth century which only serves, however, to mask the great changes that were taking place. In 1701 the proponents of the balanced constitution were expounding a newly-established delicate balance, which could still be overthrown by a resurgence of Stuart absolutism; but in 1794 their spiritual beneficiaries were fighting a rearguard action against the onrushing tide of “democracy,” however narrowly that term might be conceived at the end of the eighteenth century. The impact of the American and French Revolutions, together with the popular clamour for parliamentary reform, presented a challenge to the accepted doctrine of the British Constitution which would eventually prove irresistible; the wonder is that the theory of the balanced constitution retained its appeal well into the nineteenth century. The attack upon a constitutional theory based upon a mixture of monarchy, aristocracy, and democracy began in earnest in the 1770’s, and was strongly maintained until the Reform Act brought some respite to the political scene. The attack took several forms; the idea of balance in politics was ridiculed as a logical fallacy, as a false description of the English Constitution, or as a sham theory to hide the real monarchical or aristocratic nature of the constitution. Over a century before, the theory of mixed government had failed to meet the demands posed by the changing conditions of English politics, and the theory of the separation of powers had emerged as an alternative, for a time replacing the older theory altogether. In the potentially revolutionary situation at the end of the eighteenth century the theory of mixed and balanced government was again challenged as an adequate basis for a constitution, and we might expect a similar resurgence of the doctrine of the separation of powers, following the examples of America and France. There was indeed a resurgence of interest in the separation of powers among Englishmen interested in constitutional reform, and had revolution provided the occasion in England for constitution-making, who knows how important the doctrine might have become? But the revolution in England was staved off; the theory of mixed government, although strongly challenged, maintained its influence till well after the passage of the Reform Act, and a smooth transition to a new theory of balance in a parliamentary government was developed. However, though unsuccessful, the intellectual challenge was a strong one, and in the pattern of English political thought from 1770 to 1830 we find the same interaction between mixed government and the separation of powers so important in America and in France.
The chapter on the English Constitution in Montesquieu’s De l’Esprit des Loix reflected as its major source the writings of English thinkers on the balanced constitution, yet it is clear that Montesquieu gave an emphasis to the importance of the separation of powers very different from that of any major English writer since Locke. For most English thinkers the separation of powers was essentially a subordinate aspect of their constitutional doctrine, necessary to the maintenance of limits to the power of the three branches of the government—King, Lords, and Commons—but less important than the over-all balance of the “powers” of government maintained by the share each of them had in the legislative function. Montesquieu stressed the separation of powers, and placed that theory in a position of equality with mixed government in his constitutional theory. Furthermore, Montesquieu’s formulation of the judicial power was very different from that of Bolingbroke and his contemporaries in the extraparliamentary character he gave to the judicial function. Thus, although there is a considerable continuity between pre- and post-Montesquieu writers on the English Constitution, these changes of emphasis are extremely important in the texture of the late-eighteenth-century constitutional writings. Montesquieu’s “description” of the English Constitution, if closely examined, does not correspond with the constitution which the eulogists of the late eighteenth century were defending, but his words, taken out of context, could be used as unqualified praise of the existing constitution. Montesquieu was flattered by a host of English imitators, who used his work either as a source of inspiration or simply as a mine of material for the most flagrant plagiarism.2 The most important of Montesquieu’s disciples in England were Blackstone, de Lolme, and Paley. All three eulogized the English Constitution, but each of them, by his differing emphasis and interpretation, provided the basis for different approaches to the “Matchless Constitution,” and consequently each had a quite different influence upon differing sections of political thought in the late eighteenth century and afterwards, both at home and abroad.
Blackstone was not a very original thinker, and his debt to Montesquieu, other than in the field of the common law, has overshadowed his own contribution to constitutional theory, to a point where he has been considered no more than a reflection of the master. This debt was indeed great. It has been said that Blackstone’s plagiarism “would be nauseating if it were not comic,”3 and it would certainly be tedious to enumerate here Blackstone’s repetitions of Montesquieu; but it would be quite wrong to suggest that Blackstone’s exposition of the constitution differed in no important respects from that of Montesquieu, or that those differences had no relation to later developments in political thought. There were modifications of Montesquieu’s thought in the Commentaries on the Laws of England, which appeared in 1765–9, and as the Commentaries were regarded as authoritative in the American colonies as well as in England, it was often through Blackstone’s eyes that the colonists saw the Montesquieu theory.4
It was Blackstone’s task to assimilate as much of Montesquieu as possible and to domesticate him; to acknowledge the fact that the separation of powers was an essential part of the constitutional theory of England, but to effect a reconciliation of the separation of powers with the dominant concept of the balanced constitution to a greater degree than had ever been done before. Montesquieu himself never quite achieved this reconciliation. As we have seen, the two theories lie side by side in his work, but they are not really united. However, it is possible to draw from Montesquieu’s words the sense of what “he must have meant,” and this Blackstone did. His emphasis upon mixed government and its superiority over the three simple types was clear and unmistakable; he had none of Montesquieu’s difficulties with methodology—the British system was simply a happy exception to the general rule that such a mixture could not exist.5 He accepted unhesitatingly Montesquieu’s view of the necessity for the separation of the legislative and executive powers.6 But Blackstone was aware of the potential conflict between this idea and the theory of mixed government, and he resolved it by stating clearly what was no doubt implicit in Montesquieu but never explicitly revealed. It is necessary, said Blackstone, that the executive power should be a branch, but not the whole of the legislature. “The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present would in the end produce the same effects by causing that union against which it seems to provide. The legislative would soon become tyrannical, by making continual encroachments and gradually assuming to itself the rights of the executive power.”7 Blackstone was expounding here the idea of a partial separation of persons and functions which for him was the basis of a balanced constitution, and a few years later, with some change of emphasis, basically the same doctrine was used by Madison to explain the nature of the Federal Constitution of the United States.8 It can perhaps hardly be claimed that Blackstone made a great contribution to political theory here. What he says differs only slightly from the quotation from Bolingbroke given in an earlier chapter.9 But he has adapted the traditional English theory to the language of Montesquieu and has formulated more precisely than any of his predecessors the essential kernel of this constitutional theory.
The most important “domestication” of Montesquieu’s theory, however, came in the sphere of the judicial power. We have seen that the independence of the judges had been a matter of concern to Englishmen for well over a century and a half before Blackstone, and that the idea of a separate “judicial power” had begun in mid-seventeenth-century England. However, the early-eighteenth-century writers on the constitution placed this “power” in the House of Lords, as did Bolingbroke in the quotation mentioned above. It was left to Montesquieu to assert again the importance of an independent judicial power, separate from the legislature and from the executive alike. But Montesquieu had an equivocal view of the position of the judiciary. Only when discussing his monarchical form of government did he see the judiciary as a standing body of professional judges. When writing of the English Constitution he thought in terms of a republican régime in which there would be no standing judiciary, only ad hoc juries. Blackstone gathered up the threads of Montesquieu’s varying statements and firmly combined them into an affirmation of the necessity for an independent judicial power, along the lines of that which actually existed in England. The courts were “the grand depositories of the fundamental laws of the kingdom,”10 a phrase which Montesquieu had used only for the parlements. In England the courts were staffed by professional judges learned in the law, and Blackstone emphasized the importance of the status and tenure conferred by the Act of Settlement upon the English judges, whereas Montesquieu had defended the venality of judicial office in the French monarchy. Finally, Blackstone roundly used the term “judicial power” to describe the function of the judiciary, whilst Montesquieu, in Book XI, Chapter 6, had used simply the term le pouvoir de juger, the power of judging, because the courts in his constitution of liberty had merely to announce the law. Blackstone’s judges had behind them the whole weight and majesty of the common law of England developing through judge-made precedents, and the function of the judges was to decide “in all cases of doubt.”11 Thus Blackstone wove the judicial power into something different from, and greater than, Montesquieu’s conception of it, and different also from the “judicative power” of his compatriots of the early eighteenth century. “In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and from the executive power.”12 Thus was the basis laid for the position of the judicial power in the Constitution of the United States; Blackstone was an essential link between Montesquieu and Chief Justice Marshall, for although he did not advocate judicial review of legislation, the American view of the judiciary owes more to Blackstone than it does to Montesquieu.
In other respects Blackstone followed Locke rather than Montesquieu. He emphasized the supremacy of parliament in strong terms,13 but did not place upon the legislative power the limits which Locke has so strongly urged. He discussed the royal prerogative at length, and seeming to confound both Locke and Montesquieu he roundly equated the prerogative with the executive power of government.14
Blackstone, then, was a disciple and plagiarist of Montesquieu, but he was something more than this. He made an essentially English interpretation of Montesquieu, and gave new direction to aspects of English thought which were to play an important part in American constitutional development. Jean Louis de Lolme, on the other hand, in his Constitution of England, first published in French in 1771, gave an interpretation to the English system of government which, by attempting a much more “logical” analysis, failed almost entirely to give an impression of the inter-relationships between the parts of the machinery of English government. De Lolme, a Genevan who made his home in England for many years, devoted a full-length work to the subject of Montesquieu’s single chapter, and is credited with a greater influence on the continent of Europe than Montesquieu himself.15 De Lolme, like Blackstone, eulogized the balanced constitution, but his emphasis was very different. He stressed the separation of the branches of government much more than the English writers. He emphasized the need to restrain both legislature and executive, but, except for the royal negative over legislation, he did not stress the checks and balances of the constitution; rather he relied, in an almost seventeenth-century sense, upon the division of functions to safeguard liberty.16 He argued that the division of the legislative branch into three parts and the unity of the executive branch were essential to the restraint of each of them. This found an echo in the United States Federal Convention, where James Wilson used this argument to justify a single executive and the bicameral system. But de Lolme was, in 1771, further out of touch with the realities of English politics than Montesquieu had been twenty-three years earlier. Blackstone had used a mechanical analogy by likening King, Lords, and Commons to “three distinct powers in mechanics” which “jointly impel the machine of government in a direction different from what either, acting by itself would have done; but at the same time in a direction partaking of each, and formed out of all,”17 but de Lolme pushed the mechanistic analogy to the point where deadlock—he uses the term “equilibrium”—becomes a virtue.18 The beauty of the English system was that “the chance that no changes will be made is greatly increased.”19 Complete stagnation became the prerequisite of political liberty. However, this view of English politics, if it could ever have had any validity, was now quite archaic. If we can forgive Montesquieu for underestimating the importance of the King’s Ministers, there can be no excuse for de Lolme. As the editions of his work came unheeding off the press the turmoil of discussion in political life centred on the cabinet and its role in English government.
William Paley seemed to be equally unconcerned with the role of the cabinet, but he at least was anxious to discuss the practice of the constitution rather than its “theory,” including a frank discussion of the importance of the system of influence.20 Paley, in 1785, presented perhaps the best eighteenth-century statement of the mixed and balanced constitution, using all the emphasis upon judicial independence and the separation of legislative and executive power which had become since Montesquieu an essential part of constitutional theory. At the same time he defended the system of influence as a necessary part of the constitutional scheme, without which the deadlock implicit in the theories of Montesquieu and de Lolme would certainly have been realized. Paley drew upon the same argument that David Hume had developed in his essay Of the Independency of Parliament. The potential power of the Commons, Hume said, was so great that only by the use of influence could the Lower House be prevented from becoming the only effective branch of the government. For Hume, and for Paley, the very power of the House of Commons necessitated a system of patronage by which the Crown and the House of Lords could defend themselves, and so maintain a genuinely mixed constitution: a truly independent Commons would be inconsistent with the very existence of the monarchy.21 Paley’s defence of the status quo was not couched in terms of its historical longevity or the sacred prescription of tradition, but upon expediency. Those who advocated reform must bear the onus of proving that the alternatives to the existing constitution would contribute better to the sum total of public welfare and happiness. Paley set out, clearly and in a reasoned argument, the case for seeing the balanced constitution as the best and most desirable system of government that the mind of man had so far devised. Thus whilst the legalistic interpretation of Blackstone carried most weight in America, and de Lolme’s “logical” view of English government was influential on the Continent, in England it was Paley’s pragmatic defence of the balanced constitution that formed the basis of the resistance to reform.
Paley’s brand of reasoned conservatism had great appeal for the opponents of reform. A remarkably good example of this style is provided by a work of the Reverend D. M. Peacock. In his Considerations on the Structure of the House of Commons of 1794 he skilfully wove into a pattern the fundamental necessity of a separation of powers, of a division of functions between the branches of government, and the need for reciprocal controls between those branches. The elements of a mixed government, he said, must be “weighed out in their just proportions with the utmost nicety and exactness, and worked up together by the most skilful and delicate hand.” Should any one of these elements predominate it would destroy the others, and if the branches were not properly combined the mixture would act upon the political body like a violent and destructive poison. Thus there was required in the political system not a subordination of the Commons, but “a nice proportion of influence” which would serve to maintain the proper balance of power. However, the patterns of perfect government worked by Blackstone, Paley, and their followers, were met by a mounting tide of discussion in which the doctrine of the separation of powers played a larger and larger role.
In the sixty years from 1770 there were three major areas of thought in which the relationship of the separation of powers to the dominant constitutional theory was under discussion. First, those who operated the existing political system, including those who favoured moderate reform, were involved in day-to-day battles wherein the theory of the separation of powers was used as a weapon with which political enemies could be castigated. For these people the theory was mostly a tactical weapon, to be used as the movements of the political battle-lines made it seem appropriate to particular issues in dispute. Second, there were those who, opposing a system based upon corrupt and unrepresentative parliaments, mounted an attack upon the basis of the system, mixed government, and were led into a discussion of the separation of powers as an alternative. Third, there were those radical opponents of the existing system, and particularly of the role of the cabinet in it, who adopted a thoroughgoing version of the separation of powers as the basis of their attack.
The support of the doctrine was invoked in many of the political struggles of this period. The expulsion of Wilkes by the House of Commons was attacked by George Grenville in 1769 as an attempt by the House “to blend the executive and judicial powers of the state with the legislative,”22 and Burke joined in the condemnation of the role which the Crown was seen to play in a judicial matter by means of legislative influence.23 The Regency Bill of 1788 was attacked as an attempt by the Commons to take over the executive power,24 and the appointment of Lord Chief Justice Ellenborough to the Cabinet in 1806 was opposed as a serious breach of the doctrine.25 The greatest issue of all, however, was the proper role of the cabinet under the Constitution, and the problems that this posed for the theory of mixed government. The system of patronage and influence had, of course, long been the object of bitter attacks as the means of breaking down the independence of the “popular” branch of the legislature, but now this issue was subsumed under the greater one of the part that Ministers should play in the balanced constitution and of the use they should be able to make of this influence. The idea of a cabinet responsible to the King but also dependent in the long run upon maintaining support in Parliament did not fit at all well into the traditional theory of an independent trio of King, Lords, and Commons. When, furthermore, the possibility was glimpsed of a cabinet responsible to the King only in name, but really dependent upon the support of a faction in Parliament, the theory of mixed government and its subordinate division of functions was almost lost to view. Burke in the Present Discontents charged the Ministry with having abandoned the no longer effective fortress of prerogative and of having entered into Parliament to execute their whole programme, so robbing Parliament of any possibility of controlling the Crown, because Parliament was thereby made “to partake in every considerable act of government.” The old “check” of impeachment was in danger of disappearing. Burke emphasized the need for an independent House of Commons that would be able to return again to its “old office of control.” But when Burke in the same work himself argued that Ministers should be dependent upon “party” support and not merely on that of the King, he was developing a doctrine which cut at the roots of the “balanced constitution,” however much in later years he asserted that he had consistently defended it.26
The assertion by Charles James Fox in 1784 of the right of the Commons to a negative on the choice of Ministers was characterized by Pitt as an attempt to transfer the executive power of the Crown to the House,27 and in the same year George Rous used the authority of Montesquieu to condemn the notion of an executive selected by the legislature.28 The nomination of Ministers by the Commons, said Rous, would remove all possibility of holding Ministers responsible, for then “no accusers remained to the guilty.”29 It is interesting that what we have come now to term “responsible government” was attacked in this period as the antithesis of responsibility, for if the “executive” and the “legislature” were so closely linked as to be jointly responsible for government acts, who was left to exercise the function of control? George Rous was one of the most consistent proponents in this period of the separation of powers as an essential element in the balanced constitution. He used the doctrine to attack the nomination of Ministers by the House, and to characterize the Regency Bill as an encroachment on the executive;30 in 1784 he attacked the “mixture of executive government which corrupt Ministers have introduced into the House of Commons,”31 and later turned to a defence of the French Constitution of 1791 as embodying the total separation of the legislative and executive powers, compared with the “unnatural mixture of executive government” in England.32
The moderate reformers used the theory of the balanced constitution as emphatically as the opponents of reform, arguing that the constitutional balance had been destroyed by the exercise of influence over the Commons. The only means of maintaining the reality of the “glorious triplicity” of the Constitution was to assure the independence of the Commons. Thus an appeal could be made to Blackstone’s dictum that “when the independence of one of the three branches of the British legislature is lost, or becomes subservient to the other two, there would be an end of the constitution,” against Paley’s defence of a corrupt and unrepresentative legislature.33 Those who wished for reform within the context of the mixed constitution might be expected to use the separation of powers as a weapon to attack the status quo. In 1812 Walter Yate in his Political and Historical Arguments in Favour of Reform,34 whilst stressing that the three branches of the legislature must operate in concord, insisted that the functions of Crown and Parliament must be kept distinct,35 and emphasized the importance of the separation of powers as an essential principle of free government.36 Indeed he went far towards stripping away the mixed constitution altogether, and relying solely on the separation of powers, when he asked “What is the necessity of a check on the power of the Commons by King and Lords?”37 Provided that “the people of property are free and happy” Yate saw the need only for “an adequate representation of the people, unchecked and uninfluenced by any thing, but the common interest; and that they appoint responsible men for the execution of the laws.” If properly constituted annual parliaments were to be held he foresaw the possibility of an executive more permanent than in the existing system, for then the executive would be obliged to act according to justice and the public interest.38
The “moderate” proponent of reform within the existing Constitution could easily slide into a much more radical position. “Friends of Reform—Foes of Revolution” is a slogan which has within it the threat of an easy transition to a completely different position if the aims of reformers are baulked. The defence of a perfectly balanced constitution could slip from a eulogy on the French Charte of 1830, as a system of government in which “the Commons are triumphant, the peers subordinate, and the king only the premier, or first public minister,” to the outright assertion that British government was based upon “the impossible theory of three equal co-existing branches of the legislature.”39 There was therefore implicit in the demands for reform the threat of an all-out attack upon privilege which would sweep away altogether the old system. What the result might have been is suggested in the writings of those radical opponents of the balanced constitution who openly rejected its basic assumption of a mixture of monarchy, aristocracy, and democracy.
The outright attack upon the basis of the balanced constitution in England burst out with the rejection of the established theory of the constitution in America. The upsurge of democratic feeling was reflected in the rejection by the radicals of all monarchic or aristocratic privilege. Many of these radical opponents of mixed government were also bitterly opposed to the cabinet system, which they saw as the instrument of royal or aristocratic oppression. Tom Paine, in Common Sense, first published in America in 1776, launched the attack on mixed government and the balanced constitution. “To say that the Constitution of England is a union of three powers, reciprocally checking each other is farcical; either the words have no meaning, or they are flat contradictions.”40 In practice, wrote Paine, the corrupt influence of the Crown had made England nearly as monarchical as France or Spain. In the first part of the Rights of Man Paine turned his attack from the King to the cabinet. “What is supposed to be the King in a mixed government, is the Cabinet.”41 The members of the cabinet, in their dual capacity as members of parliament and servants of the Crown, justify in one capacity the measures that they advise and carry out in another. The system could only be maintained by corrupt means, so that eventually it resolved into a government by committee, “in which the advisers, the actors, the approvers, the justifiers, the persons responsible and the persons not responsible, are the same persons.”42 The antagonism of the radicals to the cabinet system was so great that they preferred to appeal for support to the theory of balanced government of de Lolme or Blackstone rather than accept the idea of a cabinet responsible to the Commons. Thus as late as 1807 Cobbett and other writers in the Political Register demanded the complete exclusion of office-holders from the Commons, quoting the Act of Settlement as a precedent, and using the idea of checks and balances as a justification;43 for whilst the separation of powers clearly played a role in the theory of the balanced constitution, it seemed to them to have no place at all in the evolving theory of ministerial responsibility to parliament.
If the radical reformers saw the English Constitution, in the words of David Williams, as “one of the most awkward and unmanageable fabrics which has ever been produced by human folly,”44 what did they intend to put in its place? Paine, his energies bent upon slashing criticism, was relatively little concerned with constructive ideas, but for him, like most of the others, the example of America, and, for a time at least, of France, was of vital importance. In his own words, “the American Constitutions were to liberty what grammar is to language.”45 The radicals, despairing of getting Parliament to reform itself, turned against the idea of parliamentary supremacy and looked to a constitution that would subordinate Parliament to popular control. Paine’s gibe that Britain had no constitution led many to assert that the real constitution, as opposed to the sham system of government then operating, could be found by reaching back to the Saxon institutions of England that had flourished before the Norman feudal yoke had imposed upon the people the crushing burden of aristocracy. Jeremy Bentham, on the other hand, was led to compose a Constitutional Code, from first principles, which would regulate the exercise of all power, and in which the legislature would be subject to control.
The evolution of Bentham’s thought is of great interest in illustrating the way in which the thought of English radicals might provide a parallel to the constitutional developments of America and France. Bentham’s political views underwent a good deal of change with the passage of the years, and in his earlier work he was relatively little concerned with the problems of political organization. In 1776 he, like Paine, attacked the dominant constitutional theory, ridiculing Blackstone’s description of the English system of government with a “theorem” which proved that mixed government must be all-weak, all-foolish, and all-knavish,46 and in the Book of Fallacies, first published in 1824, Bentham developed an attack upon the very notion of a “balance” in politics.47 Although Bentham attacked the notion of the balanced constitution, this did not mean that he accepted the doctrine of the separation of powers as an alternative. Both ideas were subjected to attack as intellectually unsound. In the Fragment he doubted that Blackstone, or anyone else, had given enough thought to the terms legislative power and executive power, which they used so freely, and so vaguely,48 and in the General View of a Complete Code of Laws, published in French in 1802, Bentham criticized the usually-adopted divisions of government functions as “in a state of confusion and disorder.”49 In this work he made the fundamental point that the usual distinction between the legislative power and the judicial power, which defined the former as concerned only with generalities and the latter only with particular acts, was a false one. He developed a distinction between the two powers, largely based upon their procedural characteristics,50 but he preferred to create his own classification of political powers, seven of them, which he believed would remove the confusions inherent in any attempt to apply the terminology of one system of government when describing another, and so obviate “the torment of those who have had to give an account of a foreign constitution.”51 Bentham was also critical of any theoretical approach to the structure of government that divided the powers of government in a way which would make them separate and independent, for this would be to introduce anarchy into a State. There must always be an authority, superior to all others, which “receives no law, but only gives it, and which remains master even of the rules themselves which it imposes upon its manner of acting.”52
This last phrase suggests a commitment to an unqualified legislative supremacy, yet elsewhere Bentham showed a considerable concern that any exercise of governmental power should be subject to checks. “To the welfare of the governed . . . it is highly conducive at least, if not . . . altogether necessary, that in whatsoever hands power be lodged, checks to it, in some shape or other, should, throughout the whole field of its exercise, be applying themselves.”53 It is in the Constitutional Code, published in 1827–30, that Bentham, for the first time, really faced the constitutional problems of a representative democracy. In this work he clearly rejected parliamentary supremacy, explicitly adopting the principle of the French Constitution of 1791, which had been announced by Sieyès, of a constituent authority to which the other authorities of the State—les autorités constituées—including the legislative, were to be subordinated.54 His basic principle was, however, a hierarchy of powers, rather than the separation of equal powers which the Constituent Assembly adopted in France. The legislative power is subordinate to the supreme constitutive power, the “supreme executive” is subordinate to the legislature, and the executive chief is “superordinate” to the Minister of Justice, who heads the judiciary.55
The most striking aspect of the Constitutional Code is the admiration Bentham there expresses for the example which the United States has set in the Constitution. His work was based, of course, upon the essential principle of the greatest happiness of the greatest number, but he easily reconciled this philosophic principle with constant appeals to American experience, by simply stating that the American Constitution “has for its object the greatest happiness of the greatest number.”56 It is hardly surprising, therefore, that Bentham’s scheme shows clearly the influence of the Federal Constitution, or that, in spite of the hierarchical principle he adopted, some aspects of the separation of powers, in particular in respect of the personnel of government, crept in by the back door. Except for the overriding authority of the constituent power, the people, Bentham’s legislature was omnicompetent. He rejected Montesquieu’s theory of the separation or division of power because “it is destitute of all reference to the greatest happiness of the greatest number”; yet he praised the Federalist.57 The function of executive and judicial officers was to carry out the orders of the legislature, and no more. If they failed to do this the legislature would be able to intervene in their affairs to ensure compliance.58 However Bentham felt that the legislature ought not to intervene in this way except in extreme and abnormal situations, and his legislators were required to make an inaugural declaration that they would refrain from interfering “without necessity” in the work of the subordinate departments of the government, for, wrote Bentham, “nothing but disobedience, tardiness, inaptitude, or casual and momentary want of time, on the part of subordinates, can create, on the part of the Supreme Legislature, any such necessity as that of assuming to itself, in the whole or in part, business belonging to any one of their several departments.”59
The dangers of legislative interference with executive and judicial functions were discussed by Bentham, as we should expect, as matters of expediency rather than principle. Yet when he came to the relations between legislature and executive he rejected the parliamentary system in favour of an arrangement which was something of a hybrid between the American Constitution and the French Constitution of 1791. The office of Prime Minister he modelled upon that of the American President, in so far as the latter, according to Bentham, was “on purpose, and to a very wise purpose, placed at a perpetual distance from Congress.”60 This meant that the Prime Minister had no place in the legislature, with which he might communicate only by message.61 The other Ministers, although they might sit in the legislative chamber and propose motions, could not vote.62
Bentham’s thought, then, shows clearly the dilemma of the radical reformer, who, having faced the need to replace the existing constitution with a representative democracy, nevertheless recoiled at the idea of a Long Parliament or a Convention of 1792. Whatever the theoretical objections, some form of separation of powers becomes the only refuge. Bentham was chary of giving any real independence to his executive, but his contemporaries in America and France, once having themselves experienced the dangers of government by convention, were much less prepared to entrust “omnicompetent power” to the legislature.
One further strain of thought in England regarding the separation of powers remains to be considered. This is that branch of radical thought which, rejecting all suggestion of the mixed and balanced constitution, looked back to pre-Norman institutions as they were presumed to have operated. This attachment to the Saxon Constitution is reminiscent of the English Civil War, and we find in the advocates of this view a preference for Harrington and Sadler over Montesquieu and Bolingbroke, and a view of government organization more attuned to the simplicity of the Instrument of Government than to the complexities of the eighteenth-century constitution. This attachment to “Saxon” principles was closely related to a belief in the strict functional division of powers between the branches of government. The author of An Historical Essay on the English Constitution, which was published in 1771 and formed the basis of much of the radical attack in England and America upon aristocratic and monarchical power, argued that three things were necessary for a Saxon government—a court of council, a court of law, and a chief magistrate vested with the executive authority.63 The best exponents of this style were David Williams and John Cartwright.
David Williams, a friend of Franklin and of Brissot, and founder of the Royal Literary Fund, published in 1782 his Letters on Political Liberty, in which he looked back to the Saxon Constitution “beautiful in its general structure, though defective in important parts,” and insisted that all the branches of government should be subject to popular control when they transgress their proper boundaries.64 In 1789 there followed his Lectures on Political Principles, an extensive commentary on the De l’Esprit des Loix.65 He was highly critical of Montesquieu’s work, and in particular he had a boundless contempt for all the attributes of the mixed and balanced constitution, except for the separation of powers, which remained as the residue when the force of his invective had melted away the checks and balances of monarchy and aristocracy. The idea of a balance in a governmental system, he said, is “puerile and fantastical.”66 To suggest that the several branches of government are independent is to invest them with a trust which they are able to violate with impunity. The only remedy is to constitute the government in such a way that all abuses of power can be corrected by the people. The example of North America gives some hope that “the formation of commonwealths on deliberate plans” may provide the remedy.67 Williams, like the author of the True State of the Case of the Commonwealth in 1654, saw the legislative and executive powers independent of each other, yet with their power flowing directly from the people; all checks and balances were stripped away. One of his rare marks of approval of Montesquieu’s work was reserved for that paragraph of Book XI, Chapter 6 where the danger of drawing the executive from the legislative body is insisted upon.68 In other respects the balanced constitution of Montesquieu was wholly rejected. The necessity of subjecting the legislature to any control by the executive was “an absurdity so gross as to deserve no consideration.”69 It was equally unnecessary to subject the executive to the supervision of the legislature: “If the instruments, the servants of the public offend, they are accountable, not to each other, for no fair account would be obtained, but to the community.”70 Here we are presented again with that perfect, complete separation of powers which we faced in England over a hundred years before, a rejection both of the balanced constitution and of government by an all-powerful legislature, for Williams rejected as the “most pernicious species of usurpation or tyranny” the idea that the community, or any part of it, could interfere at will with the executive, legislative, or judicial offices of government.71
Williams’s main activities were in the fields of teaching and religious controversy, but Major John Cartwright was a very different figure. For forty years he was engaged in the forefront of the battle for parliamentary reform, earning himself the title “Father of Reform.” He was a prolific, if highly repetitive, writer, who devoted enormous energies to the attack on the existing system of government. The doctrine of the separation of powers figured largely in his work, and his assertion that “the legislative and executive power ought to be totally separate and distinct” was the basis of his bitter attack on the cabinet system. In his early work Cartwright accepted the theory of mixed government to the extent of allowing the sovereign to assent to the laws, but he was insistent that the men who serve the Crown and the men who serve the people ought to “move in totally different spheres and elements.”72 Unfortunately, said Cartwright, this was not the case in England, for there the legislative and executive functions were united in one set of hands. “We see the same men with the power of creating offices, and the power of furnishing salaries; with the power of forming schemes of expense, and the power of voting themselves the money; with the power of plunging their country into war whenever it may suit their corrupt views, and the power of granting themselves the supplies. Can faction, in the lust of dominion want more?”73 How could de Lolme or his editors bring out further editions of his neatly divided constitutional system after such an exposé by the major of Northamptonshire militia? Such a curse did not exist in America or France, said Cartwright, warming to his theme. In those countries men would not be found “skipping, like harlequins, from the cabinet to the legislature, from the legislature to the cabinet; here in the shape of executive directors, there in the form of popular deputies . . . one moment issuing rash and insidious proclamations to the people; and the next, as representatives of the people, moving addresses and pronouncing panegyrics on their own performances.”74 By 1823, shortly before his death, Cartwright had come to reject all the monarchical and aristocratic elements in English government. He was wholly in favour of a “Saxon” constitution, with a unicameral legislature, an elective executive without veto, subordinate to the legislature, and both subordinate to the constitution.75 The governments of America, particularly the first Constitution of Pennsylvania, approximated most closely to the Saxon model. “Such was the government of a Wittenagemote executed by an Alfred! Such is the government of a Congress, executed by a Monroe.”76
The theory of the balanced constitution was under heavy attack during this period of English history, and, as in America and on the Continent, its major rival constitutional theory was the separation of powers. The alternative doctrine of parliamentary government found no inspired supporters in the country where it was being developed; indeed, in the first thirty years of the nineteenth century it is to France that we must look for the major advancements of a theory of government which accepts the King’s Ministers as an integral part of a balanced constitutional system. Although the doctrine of the separation of powers represented an intellectual threat to the dominant constitutional ideology, the political situation never reached that boiling point where it might have become a matter of practical politics, and the passage of the Reform Act in 1832 removed whatever threat there might have been; for, interesting as the radical strain of thought was in England in the years 1770 to 1830, the doctrine of the separation of powers could never hope to reach that peak of popular acceptance and significance that it achieved first in the newly independent colonies of America, and then in revolutionary France.
[1. ]R. Nares, Principles of Government Deduced from Reason, London, 1792; and F. Plowden, A Short History of the British Empire, London, 1794.
[2. ]For a full discussion of Montesquieu’s imitators see F. T. H. Fletcher, Montesquieu and English Politics (1750–1800), London, 1939.
[3. ]Ibid., p. 121.
[4. ]See the essay on Blackstone in Sir Ernest Barker’s Essays on Government, Oxford, 1945.
[5. ]Commentaries, Intro., Sect. 2, p. 50.
[6. ]Ibid., I, 2, p. 146.
[7. ]Ibid., I, 2, p. 154.
[8. ]See Ch. 6 below.
[10. ]Commentaries, I, 7, p. 267.
[11. ]Ibid., Intro., p. 69.
[12. ]Ibid., I, 7, p. 269.
[13. ]Ibid., Intro., p. 91.
[14. ]Ibid., I, 8, p. 281.
[15. ]See the interesting work by Edith Ruff: Jean Louis de Lolme und sein Werk über die Verfassung Englands in Historische Studien, Vol. 240, Berlin, 1934, p. 48.
[16. ]4th edn. (1784), p. 275.
[17. ]Commentaries, I, 2, p. 155.
[18. ]Op. cit., p. 171.
[19. ]Ibid., p. 214.
[20. ]The Principles of Moral and Political Philosophy.
[21. ]Ibid., p. 442.
[22. ]The Speech of a Right Honourable Gentleman . . . , 1769, p. 52.
[23. ]On the separation of powers in these disputes see Fletcher, op. cit., Ch. VIII.
[24. ]Reflections on the Formation of a Regency, London, 1788, pp. 15–18.
[25. ]Annual Register for 1806, pp. 28–29.
[26. ]For a discussion of this period see C. P. Courtney, Montesquieu and Burke, Oxford, 1963, pp. 78–82.
[27. ]Ibid., pp. 121–2.
[28. ]G. Rous, A Candid Investigation . . . , London, 1784, pp. 21–22.
[29. ]Ibid., p. 6.
[30. ]A Letter to The Right Honourable Edmund Burke, London, 1791, pp. 93–95.
[31. ]The Claim of the House of Commons . . . , 1784.
[32. ]A Letter to the Right Honourable . . . , pp. 96, 99, and 103.
[33. ]See Defence of the Constitution, Birmingham, 1822, pp. 21 and 44–45, attributed to Sir Peter Payne.
[34. ]The Biographical Dictionary of the Living Authors, London, 1816, p. 403, states: “This was written by Captain Ashe, who sold the MS. for £300.”
[35. ]Ibid., p. 85.
[36. ]Ibid., p. 19.
[37. ]Ibid., p. 242.
[38. ]Ibid., p. 238.
[39. ]The Black Book: An Exposition of Abuses in Church and State, London, 1832, edn. of 1835, p. 625.
[40. ]Op. cit., edn. of 1819, p. 8.
[41. ]Edn. of 1819, p. 107.
[43. ]Political Register, 1807, XI, 518, 558, 585; XII, 587, 990.
[44. ]Letters on Political Liberty, London, 1782, p. 9.
[45. ]Rights of Man, Part I, edn. of 1819, p. 65.
[46. ]A Fragment on Government, in Works, ed. by John Bowring, Edinburgh, 1843, Vol. I, p. 282.
[47. ]Works, Vol. II, pp. 445–7.
[48. ]Works, Vol. I, pp. 278–9.
[49. ]Ibid., Vol. III, p. 198.
[51. ]Ibid., Vol. III, p. 196.
[52. ]Ibid., Vol. I, pp. 570–1.
[53. ]The Elements of the Art of Packing, in Works, Vol. V, p. 69.
[54. ]Works, Vol. IX, p. 96.
[56. ]Ibid., Vol. IX, p. 9.
[57. ]Ibid., Vol. IX, p. 123.
[58. ]Ibid., Vol. IX, p. 124.
[59. ]Ibid., Vol. IX, p. 203.
[60. ]Ibid., Vol. IX, p. 204.
[61. ]Ibid., Vol. IX, p. 206.
[62. ]Ibid., Vol. IX, p. 316.
[63. ]Op. cit., p. 29. However, at a later stage this author refers to aspects of the balanced constitution with approval—see pp. 111–12 and 115.
[64. ]Op. cit., p. 17.
[65. ]In the Preface, Williams states that he is being provocative in these lectures in order to stimulate his students to discussion, but there is no reason to believe that he was not in fact stating his real views, and merely attempting in the Preface to avoid some of the possible consequences of his extreme position.
[66. ]Op. cit., p. 149.
[67. ]Ibid., p. 165.
[68. ]Ibid., pp. 166–7.
[69. ]Ibid., p. 168.
[70. ]Ibid., p. 169.
[71. ]Ibid., p. 228.
[72. ]An Appeal on the Subject of the English Constitution, Boston (Lincs.), 1797, p. 45.
[73. ]Ibid., p. 46.
[74. ]Ibid., p. 51.
[75. ]The English Constitution Produced and Illustrated, London, 1823, p. 118.
[76. ]Ibid., p. 228.