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

putting them into execution, “which placing the legislative and executive powers in the same persons, is a marvellous in-let of corruption and tyranny.”¹¹³ The secret of liberty is “the keeping of these two apart, flowing in distinct channels, so that they may never meet in one (save upon some transitory extraordinary occasion).”¹¹⁴ The combination of these two powers in a single person is tyranny enough, but the consequences are abundantly more pernicious when they are in the hands of an assembly, for such a multitude can more easily escape responsibility. The ancient wisdom of the English had been to “temper” their government by placing the supreme law-making power in the people in Parliament, and entrusting the execution of law, “with the mysteries of government,” in the hands of a single person and his council.¹¹⁵

      Each of the two arms of government, the writer insisted, must be limited to its proper sphere. The continuance of military government would have been dangerous because it would have left both the instituting and executing of the law “to the arbitrary discretion of the souldier,” who would be apt to execute his own will in place of law, without check or control.¹¹⁶ On the other hand Parliament should not meddle in the executive sphere. It is contrary to the nature of Parliament, whose great work is to make laws, to take upon itself the administration of law and justice.¹¹⁷ “The ordinary preventive physick in a state against growing maladies, is execution and administration of law and justice, which must be left to its officers.”¹¹⁸ Parliaments were never intended to execute the law, “it being the peculiar task of inferior courts.”¹¹⁹ In future the government would be managed by an elected person, so that all power, both legislative and executive, will flow from the community.¹²⁰

      This, then, was no mere casual reference but a well-developed theory of government. It did not have the finesse of Dallison’s work of six years before, but in part this is because it was a starker doctrine, closer in many ways to our ideal type of the pure doctrine. The analysis is, it is true, in terms of two functions of government only, with little or no realization of the importance of a judiciary independent of the executive. It was almost completely stripped of the paraphernalia of mixed government; only in the final paragraph of the fifty-two-page document is a passing appeal made to the ancient theory. The author then in his final words returned to his main theme, emphasizing in the clearest possible way the theory of government upon which he relied: “And whereas in the present Constitution, the Legislative and Executive Powers are separated… .” However, no consideration was given to the dual role the Council was to play in this Constitution, as the adviser to the Protector in the exercise of the executive function, and as the only control by Parliament over the Protector. This work came very near indeed to a purely negative view of the constitutional checks necessary to prevent arbitrary rule. The complicated inter-relationships which characterized the work of Montesquieu a century later were almost completely absent.

      In 1656 Marchamont Nedham published The Excellencie of a Free State, in which the same argument was developed in words that echo the True State of the Case. This is a full-length work on government and the discussion of the separation of powers is no longer the central peg upon which the book hangs, but is merely one of the principles upon which it says a free state must be built. “A fifth Errour in Policy hath been this, viz. a permitting of the Legislative and Executive Powers of a State, to vest in one and the same hands and persons.”¹²¹ The reason is evident, for if the law-makers “should be also the constant administrators and dispensers of law and justice, then (by consequence) the people would be left without remedy in case of injustice.”¹²² The book was not without importance, for it was reprinted in France during the Revolution and was, according to John Adams, well-known in colonial America.¹²³ In the same year Harrington published his Commonwealth of Oceana, in which he formulated a separation of functions among the agencies of government. The Senate, composed of an aristocracy of merit, must propose the laws, which are then to be affirmed or rejected by the people or their representatives. Harrington continued: “Wherefore as these two orders of a Common-wealth, namely the Senate and the People are Legislative, so of necessity there must be a third to be executive of the Lawes made, and this is the Magistracy.” Thus the “Common-wealth” consisted of “the Senate proposing, the People resolving, and the Magistracy executing.”¹²⁴ In contrast, however, to the political theory of the Instrument of Government, Harrington’s emphasis lay upon mixed government, and for all its revolutionary overtones, was more in sympathy with Charles I’s Answer, or Hunton’s Treatise, than with Nedham’s True State of the Case of the Commonwealth. Nevertheless, in a petition of 1659, which Toland attributes to Harrington, the vocabulary of the mid-seventeenth-century doctrine of the separation of powers was clearly deployed,¹²⁵ and, indeed, by that year, when the future constitution of England was being so hotly debated, the doctrine of a twofold separation of powers had become a commonplace.¹²⁶

      Thus, some thirty years before the publication of Locke’s Second Treatise, the doctrine of the separation of powers had been evolved as a response to the problems of the Civil War and the Commonwealth, and had, in its seventeenth-century formulation reached a high degree of development. But the Protectorate failed and the Instrument of Government itself had failed long before the end of the Protectorate, being replaced by a much more monarchical constitution, the Humble Petition and Advice of 1657. With the Restoration there was a return to the theory of mixed government as the basic constitutional pattern of England, but from then on the doctrine of the separation of powers could not be ignored; it had become a part of the intellectual climate of Western constitutionalism. A few years later John Locke’s treatment of the “powers of government” must be seen in the light of an assumption that his readers were well acquainted with such a doctrine, rather than as if he were hesitantly presenting a new concept of government.

      The doctrine of the separation of powers was well developed by the end of the Protectorate, but it was a relatively unsophisticated doctrine, the bare essentials without much appreciation of the complex inter-relationships of a system of government the functions of which are divided up among several agencies. During the ensuing century it was to be combined with its related theories to produce a much more complex theory of constitutionalism, but in the mid seventeenth century it suffered from the fact that no real attempt was made to work out the arrangements needed to ensure that deadlock did not result from the separation of functions in separate hands. In this respect the doctrine reflected the realities of politics under the Protectorate. The systems of influence or party, which made a set of functionally divided institutions workable at a later date, could not operate in the bitterly divided England of the period just before the Restoration. It had been proved that neither a Protector nor a Parliament could govern alone, and that neither could develop the necessary relationships with the other that would have made the system workable. The politics of deadlock, implicit in the pure doctrine of the separation of powers, made people look to a version of the traditional system of government, but a version in which the elements of the newer doctrine must have a place.

THREE

       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