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

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