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

their Laws; they seem to be Judge in their own cause: which our Law, and Nature it self, so much avoideth and abhorreth, so it seemeth also to forbid, both the Lawmaker, and the Judge to Execute… .”⁹⁶ Sadler’s view of the executive function was, as we have seen, not our modern one, but in other respects his grasp of the principles of the doctrine of the separation of powers was clear.

      However, important as are the sources of the ideas we have examined, so far all of them are fragmentary, with little coherent theoretical development or elaboration. Probably the first person to undertake an extended treatment of this kind was Charles Dallison, if he is indeed the author of the remarkable work The Royalists Defence of 1648. Dallison not only had a threefold division of functions in mind, but the whole of this work was devoted to the argument that a satisfactory system of government can result only from the placing of these distinct functions of government in separate hands so that “every one is limited, and kept within his owne bounds.”⁹⁷ His work may be seen as an attempt to combine the theory of mixed government as it had been set out in Charles I’s Answer to the Nineteen Propositions, with the emphasis upon the more abstract and thoroughgoing separation of functions which had been stressed by parliamentary writers. It represented perhaps the clearest and most comprehensive statement that had then been made of the relationship between separating the functions of government, placing them in different hands, and balancing the parts of government. Dallison argued that the King must retain the “sovereign power of government” but he must not have the authority to judge the laws. “The Judges of the Realme declare by what law the King governs, and so both King and people [are] regulated by a known law.”⁹⁸ Neither does Parliament have the power to determine individual points of law. It is neither fit for such work, nor was it instituted for that purpose. “Those things … are the office of the Judges of the Realme.”⁹⁹ Parliament’s function is “only to make new laws,”¹⁰⁰ whilst the King is “our onely Supream Governour.”¹⁰¹ Dallison echoed Hunton’s argument that the King’s supremacy is assured by his having the sole executive authority, using the rather strange argument that “neither the making, declaring or expounding the Law, is any part of Sovereignty.”¹⁰²

      There are thus three agencies of government, each with its appropriate function. Furthermore, it is because the branches of government retain “their own proper authority without clashing with, or encroaching each upon other” that both King and subjects are preserved in their just rights.¹⁰³ “Whilst the Supremacy, the Power to Judge the Law, and the Authority to make new Lawes, are kept in severall hands, the known Law is preserved, but united it is vanished, instantly thereupon, and Arbitrary and Tyrannicall power is introduced.”¹⁰⁴ Dallison’s objection to the concentration of power in the hands of Parliament was just as strong as his objection to the King’s governing outside the known law. Attempts by Parliament to govern are as inefficient as they are improper.¹⁰⁵ The Parliament has established a tyrannical regime by attempting to govern, and to judge individual causes. The only remedy is to restore the King, and the “foresaid Authorities are returned into their proper places, and againe divided into severall hands.” At once “every Court, Assembly and person, not only enjoyes its own Authority, but is limited within its own bounds; no man then is permitted to be both Judge and Party.”¹⁰⁶

      The Royalists Defence was, then, a lengthy and well-developed plea for the separation of powers, but it was not the pure doctrine as we have defined it, for in one major respect it adhered to the theory of mixed government. The King was to retain the authority with the assent of the two Houses, to alter the law and to make new laws.¹⁰⁷ The King, therefore, played an essential part in the exercise of the legislative function, although Dallison for the most part, but not consistently, wrote of him as if he were outside, and separate from the Parliament. In this respect Dallison’s book is closely related to the theory of the balanced constitution of the eighteenth century, except that he had a clear view of the independence of the judges, exercising a quite distinct function of government, whereas the later writings are much less clear upon this point.

      By the year of the execution of Charles I, then, the doctrine of the separation of powers, in one form or another, had emerged in England, but as yet it was still closely related to the theory of mixed government. It had been born of the latter theory but had not yet torn itself away to live an independent life. For a short time, in the years of the Protectorate, it did achieve this independent existence, although in an atmosphere so rarified and unreal that it soon returned to its parent for succour. The execution of the King, and the abolition of the House of Lords, destroyed the institutional basis of the theory of mixed government, and any justification of the new constitution which was to be framed for England would have to rest upon a different theoretical basis. In 1653 the Instrument of Government instituted England’s first written Constitution, and in the official defence of this constitution, entitled A True State of the Case of the Commonwealth, we find the doctrine of the separation of powers standing on its own feet, claiming to be the only true basis for a constitutional government. The Cromwellian Constitution embodied, on paper at least, a separation of persons and functions. The supreme legislative authority was vested in a Lord Protector and the people assembled in Parliament;¹⁰⁸ but although this seemed to echo the old theory of mixed government in relation to the legislative function, the role of the Protector in legislation was limited to a suspensive veto of twenty days. If after that period the Lord Protector “hath not consented nor given satisfaction,” then, upon a declaration of Parliament, bills became law without his consent.¹⁰⁹ Thus, formally, the legislative function was placed squarely in the hands of Parliament. However, the Protector was given the power to pass ordinances between the sittings of Parliament, and in practice this gave him the power to rule without Parliament’s prior consent. Article II of the Instrument provided that “the exercise of the chief magistracy and the administration of the government … shall be in the Lord Protector, assisted with a council.” The Protector was given only a limited power of dissolution, provision was made for the automatic calling of Parliaments every three years, even if the Protector failed to issue the summonses, the great officers of state were to be chosen with the approbation of Parliament, and the Parliament did not have the power to alter the fundamental structure of the Constitution.

      The broad outlines of the Instrument reflect, therefore, the earlier dissatisfaction with both a tyrannical King and a tyrannical Parliament, and set up a legislature and an executive, each with a degree of independence of the other, each with its proper function. The major aspect of the Instrument that clashed with the doctrine of the separation of powers was the position of the Council of State, for this body was entrusted with a part in the exercise of the executive “power,” but there was nothing to prevent its members being drawn from among the members of the legislature. Major-General John Lambert, who is usually credited with being the foremost author of the Instrument, was both a member of the first Parliament of the Protectorate, and of the Council of State. This reflects a general tendency during the seventeenth century and the early eighteenth century to concentrate upon the head of the executive in discussions of the separation of functions, and to pay less attention to the people who served him.

      The defence of the Instrument, published in 1654, no doubt had official backing, for Cromwell shortly afterwards made an approving reference to it in a speech before Parliament.¹¹⁰ Although the title-page refers to “divers persons” as the source of the work, its authorship was contemporaneously attributed to Marchamont Nedham,¹¹¹ a journalist who was apparently prepared to write in support of any cause if the price was right, or if circumstances made it prudent. Undoubtedly the work paints a rosier picture of the Instrument than the facts warranted, but this is not our main concern. We are interested rather in the justification that was put forward, and the ideas upon which it was based.

      The tract commenced with a justification of the Army, first in the execution of the King for his tyrannous ambitions, and second in dissolving the Parliament, which contrary to their hopes had “wholly perverted the end of Parliaments,” largely by their “unlimited arbitrary decisions at Committees.”¹¹² The recently proposed Biennial Bill would, if passed, not merely have kept the supreme authority in Parliament constantly in session, but would have offended against “the grand secret of liberty and good government”