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

here emphasized that the legislative power was jointly held by all three parts of the government, and portrayed this as the mark of a free State.¹³ It is difficult to make any assumptions about the relation of this change of view to the political events of the time, because the Politica, although published after the Examination of … Leviathan, was first written before the earlier published work, but may well have been revised for publication in 1660.¹⁴ Nevertheless, Lawson’s work does provide an important bridge between the ideas of the Civil War and Protectorate and the theory of the balanced constitution of the eighteenth century. He emphasized the supremacy of the legislative power—“the foundation and rule of all acts of administration”¹⁵ and all the major elements of that later theory are to be found in these two works, though by no means fully related in the eighteenth-century fashion. Thus Lawson’s main contribution to the transition to the modern conception of government lay in the relationships between mixed government and the separation of powers; the next step in the development towards the theory of the balanced constitution was the reconciliation of legislative supremacy with the ideas of the separation of powers. This step was taken by John Locke.

      In discussions of the origin of the doctrine of the separation of powers the argument as to whether Locke or Montesquieu was the founder of the doctrine has dominated the scene. It is clear, however, that neither of these great thinkers can claim to be the source of the doctrine, although by incorporating it into their works in one form or another they placed the great weight of their influence behind it, and so gave it a place in political theory that otherwise it might not have attained. Part of the difficulty experienced in assessing the importance of the elements of the doctrine of the separation of powers in Locke’s work is that the antecedent thought upon this subject has not been given its full weight. Mr. Peter Laslett in his recent Introduction to Locke’s Treatises argues that Locke was not concerned to put forward a theory of the defence of liberty by the placing of distinct functions in separate hands, and that Montesquieu and the American Founding Fathers took him up in a sense he had not intended to convey.¹⁶ It is, of course, certainly true that Locke did not maintain the “pure doctrine” of the separation of powers, but combined it with other elements of his theory that modify it very considerably. However, if we approach the Second Treatise afresh, with the ideas of Hunton, The State of the Case, Lawson, and others, in mind, the role of the elements of the doctrine, all of which are to be found in Locke’s work, will be more clearly seen, for it is suggested that the ideas behind the doctrine are an essential part of his thought, and that there is no reason to believe that the Founding Fathers did not understand what he had to say.

      The inter-relationship of the “powers” of government may be considered to be one of the central considerations of Locke’s theory. The crucial middle chapters of the Second Treatise are taken up with a discussion of this problem. Clearly the establishing of different categories of governmental authority and function is at the heart of what Locke has to say. He, like Marsilius, was concerned to establish over-all popular control of government, and to subject the magistrate to the law. At the same time, like Marsilius, he recognized that the day-to-day concerns of government cannot be dealt with efficiently by the people or their representatives. The demand that the ruler must conform to known established laws, and that these laws derive their authority from the consent of the people, leads inevitably to the old division of functions, the making of law and its execution. Locke found the origin of the legislative and executive authority in the powers man had in the state of nature. The first of these was to do whatever he thought fit for the preservation of himself and others within the limits of the Law of Nature. This was the origin of the legislative power.¹⁷ The second power man had in the state of nature was the power to punish crimes committed against the Law of Nature. This was the origin of the executive power.¹⁸ However, man’s inability effectively to exercise these rights led to the establishment of civil society. For the state of nature was deficient in certain crucial respects. There was no established, settled, known law, there was no known and indifferent judge with authority to determine differences according to the established law, and there was no “power to back and support the sentence when right and to give it due execution.”¹⁹ This threefold division of legislation, judgement, and execution is in conception an exact parallel of the categories George Lawson had developed, but for the most part in the earlier chapters of the Second Treatise Locke remained true to the older twofold division of functions and authority. Thus when the inconveniences of the state of nature give rise to civil society, said Locke, the legislative and executive powers are established: the former when men give up the power of doing whatever they think fit for their own preservation, to be regulated instead by the laws of the society; the latter by their giving up their power to punish others, in order to create a power to enforce these laws.²⁰ Locke still saw the main function of the State as essentially judicial; the function of the legislature was to “dispense justice,” and the State was, therefore, the judge which had been lacking in the state of nature, so that, like earlier writers, Locke had an equivocal view of the judicial function. He emphasized very strongly the need for independent, impartial judges, and the distinction between giving judgement and the execution of judgement is clearly seen; but when at a later stage he made an all-inclusive statement about the “powers of government” he did not formulate a separate judicial power alongside the legislative and executive powers, or, more accurately, he did not divide the functions of the enforcement of the law into two independent “powers” as Lawson had done.

      Locke’s most important modification of the conception of the functions of government lies in his attempt to divide up the “executive power” in a different way, that is to take into account the different nature of the internal and external responsibilities of the government. The power of making war and peace, and of entering into alliances, was the second mark of sovereignty, according to Bodin’s formulation,²¹ and Lawson and Sidney had both distinguished the sword of war from the sword of justice. Locke distinguished a third “power,” the federative power, “which one may call natural, because it is that which answers to the power every man naturally had before he entred into society.”²² The federative power contains the “Power of War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without the Commonwealth.”²³ Locke made it quite clear that the distinction between the executive authority proper, and that part of it which he labels “federative,” is one of function only, for he immediately insisted that though they “be really distinct in themselves, yet they are hardly to be separated, and placed, at the same time, in the hands of distinct Persons.”²⁴ Why then bother to make this distinction? The importance of what Locke has to say here has generally been overlooked, and the failure, particularly on the part of Montesquieu, to take up this point, has contributed greatly to the inadequacy of the classification of government functions. Locke was writing at a time when the supremacy of the legislature over the policy of the government in internal affairs was being established. The King must rule according to law. But Locke realized, as did others before him, that the control of internal affairs, particularly taxation, presented very different problems from those of external affairs. In matters of war, and of treaties with foreign powers, it was not possible, and still is not possible today, to subject the government to the sort of prior control that is possible in domestic matters. As Locke put it, “Though this federative Power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than the Executive.”²⁵ Thomas Jefferson was later to say, “Foreign affairs is executive altogether,” for by then the distinction Locke had in mind was already almost lost. The point Locke insists upon is that in foreign affairs the government is not “executing,” it is not putting law into effect, it is carrying out a quite distinct function. This function is in the hands of the “executive,” which gets its name from one of its major functions, that of putting the law into effect, so that, as Locke says, the two functions “are always almost united”; but that they are very distinct and very different functions cannot be too strongly emphasized.

      Thus far, then, the emphasis is upon the division of the functions of government, and the general approach is not very different from the doctrine stated by Marsilius three and a half centuries earlier. Like Marsilius, Locke argued that the legislative