Constitutionalism and the Separation of Powers. M. J. C. Vile

power is “mixed,” and that all three agencies of government must take part in the “making and authentick expounding of lawes,”⁷⁹ but he did suggest that the King should suspend the use of his “negative voice” in legislation.⁸⁰ Herle had made a similar demand, but this taken together with Hunton’s investing the King with the sole executive function, leads to a theory of the separation of powers and is the end of mixed government as formerly understood. Hunton intended this as a purely temporary measure, for elsewhere he was quite definite about the legislative role of the monarch, but this antagonism to the royal veto power was soon to swell into a demand for the abolition of all participation by the King in the process of legislation.

      Hunton experienced difficulty with just those problems which were also to perplex later ages; for here we see emerging the first attempts to evolve that peculiarly English approach to the idea of sovereignty which has so often been misunderstood. In England the acceptance of the idea of a single source of sovereign power led to the concept of parliamentary supremacy, but this did not mean, and never has meant except during the reign of the Long Parliament, that the representative element of Parliament exercised an unrestrained power to carry out all the tasks of government. Parliamentary supremacy is not the same as gouvernement d’assemblée, for the “King-in-Parliament” has always been composed of a number of distinct elements with certain autonomous powers. There is a real sense in which, even today, the spirit of “mixed government” lives on in the British system of government, through the recognition of the autonomous position of the government in relation to the elected representatives of the people or of the political parties. In the seventeenth century Hunton attempted to formulate his own reconciliation between the idea of a single source of sovereign power and the need to divide authority between the King and the members of the legislature. He argued that the supreme power is either “the Legislative or the Gubernative,” but that the legislative is the chief of the two.⁸¹ The title of supremacy attaching to the King, he asserted, is fully justified by his being the sole fountain of executive power, whilst retaining a share of the legislative.⁸² Four years later Filmer was to maintain that by requiring the King to govern according to the law Hunton relegated him “from the legislative to the executive power only.”⁸³ The argument that Hunton formulated, however, confused though it may be, is one of the basic elements in the constitutional theory which became firmly established after the Revolution of 1688–9. Locke and the theorists of the early eighteenth century faced exactly the same problem that Hunton had tackled, and basically their solution was the same as his, except that their emphasis was upon the supremacy of Parliament, whereas Hunton had looked for a formula to satisfy a “supreme monarch.”

      Herle and Hunton were writing during the early stages of the Civil War, when it was thought that some such formula could be found; a formula which would leave the basic constitutional position of the monarchy unaltered. The emphasis upon the executive role of the monarch was intended to make sure that the law was supreme, an empire of laws and not of men, as Harrington was later to express it. But as time went on Charles’s intransigence gave rise to the demands for greater restraints upon royal power, and ever more insistent came the demand that the royal veto should be restrained, suspended, or abolished. In 1647 the House of Commons resolved that the King was bound “for the time being … by the duty of his office, to give his assent to all such laws as by the Lords and Commons assembled in Parliament, shall be adjudged to be for the good of the kingdom.”⁸⁴ The Levellers and others put forward the view that the King’s coronation oath bound him to execute the law, and that his participation in the passage of legislation was a breach of this oath.⁸⁵ Milton put it more strongly still. “We may conclude that the Kings negative voice was never any law, but an absurd and reasonless Custom, begott’n and grown up either from the flattery of basest times, or the usurpation of immoderat Princes.”⁸⁶ Thus the demand that the King be the sole executive was transformed into the very different demand that he be solely concerned with execution.

      The idea that the King should be limited to the exercise of the executive function was now well understood. However, the momentous years of 1648 and 1649 introduced ideas which were to ensure that it was not merely a doctrine of undiluted legislative supremacy which was to emerge from the Revolution. It was no longer possible to see the problems of England as simply King versus Parliament. The divisions within the parliamentary camp were deep and serious. Presbyterians, Independents, and Levellers were deeply hostile to each other, and other sectarian divisions loomed ominously. The use of the power of Parliament by one group of its supporters to threaten other groups had shown to men who had previously seen only the royal power as a danger, that a parliament could be as tyrannical as a king. Men who had previously been Parliament’s strongest supporters became its strongest critics. Milton in his Character of the Long Parliament, probably written in the late 1640’s but not published until 1681, expressed bitter disappointment with the rule of the Presbyterians who dominated the Long Parliament;⁸⁷ that Parliament governed the country by appointing a host of committees dealing with all the affairs of state, confiscating property, summoning people before them, and dealing with them in a summary fashion.⁸⁸

      The second stage in this development, therefore, was the realization that legislatures must also be subjected to restriction if individual freedom was not to be invaded; restricted not so much in the exercise of a genuinely legislative function, but in their attempts to govern and so to interfere with the lives and property of individuals who displeased the members of the legislature. Ireton expressed this distrust of legislatures in the Whitehall debates of 1649,⁸⁹ and, from a different point of view, the authors of the Agreement of the People of 1648 demanded that the “Representatives intermeddle not with the execution of laws, nor give judgement upon any mans person or estate, where no law hath been before provided.”⁹⁰ One bitter opponent of this aspect of Parliament’s activities was the Leveller leader, John Lilburne, who had come personally into conflict with Parliament and its committees. In a tract aimed at the Commons he proposed that “whereas there are multitudes of complaints of oppression, by committees of this House, determining particular matters, which properly appertains to the cognizance of the ordinary Courts of Justice … therefore henceforth, no particular cause, whether criminal or other, which comes under the cognizance of the ordinary Courts of Justice, may be determined by this House or any Committee thereof… .”⁹¹ In a later pamphlet directed against the Council of State he asserted that “the House itself was never (neither now, nor in any age before) betrusted with a Law executing power, but only with a Law making power.”⁹² It was true that Parliament had the power to set up courts of justice, but only “provided that the Judges consist of persons that are not members of their House, and provided that the power they give them be universal,” not a power directed at particular individuals.⁹³ This is a new and vitally important element, which resulted from the experience of the Long Parliament during the Civil War. The assertion of the generality of law is thousands of years old, but this was something more. Not only was law to be couched in general terms, but also the legislature must be restricted to the making of law, and not itself meddle with particular cases. This was indeed a major step in the development of the separation of powers. The Levellers also made the same demand for the exclusion of placemen from the legislature which was to characterize the eighteenth century, and which is an essential aspect of the doctrine.

      All the elements of the pure doctrine of the separation of powers were now present in the minds of the men who witnessed the struggle between King and Parliament, and who had come to fear the arbitrary rule of either. The idea of two or three abstractly-defined, inclusive functions of government was well known; the desire to place limits to the power of both King and Parliament was strong in the minds of men of very different points of view. All that was needed for the doctrine was the idea that the agencies of government should be restrained by each being confined to the exercise of its own appropriate function. We have already quoted Milton’s remark in the Eikonoklastes that in all wise nations the legislative and executive powers “have bin most commonly distinct and in several hands,”⁹⁴ and in The Rights of the Kingdom John Sadler, later Master of Magdalene College, Cambridge, argued that the three Estates should be “more exactly bounded in their severall sphers.”⁹⁵ The three powers of government, legislative, judicial, and executive, “should