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

composition of the Second Treatise and of the writings of Hunton and others who had grappled with the problems of reconciling the “negative voice” of the King with his being subject to the law and limited to carrying it out. Locke was emphasizing that the King’s primary function is to execute the law, but that some way must be found of giving him a degree of independence that will place him on some level of equality with the two Houses of Parliament, and this his veto power will achieve. But Locke, like the Founding Fathers, saw the role of the “Executive” in this respect as essentially a negative one. The formal power of the King is to assent to, or withhold his assent from, legislation passed by the two Houses. His assertion of the co-ordinate status of the executive branch did not stop there. He devoted a chapter to the discussion of the prerogative which constitutes “the discretion of him, that has the Executive Power.”⁴⁵ Legislators are not able to foresee, and provide for, all the things necessary for the good of the community. There are many things for which the law can “by no means” provide. Accidents may happen and strict adherence to the laws may do harm. For all these reasons the executive has “the Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it.”⁴⁶ Only the flexibility that this discretion gives enables the proper execution of the laws and provides for changing conditions. The prerogative is ultimately under the control of the legislature, but it also includes a certain authority over the legislature, that is the right to determine the precise time, duration, and meeting-place of Parliaments.⁴⁷

      Locke’s theory of government, therefore, embodied the essential elements of the doctrine of the separation of powers, but it was not the pure doctrine. The legislature, in its widest sense, included the person who had the sole executive power. This did not mean, however, that there was a “fusion of powers” in the system. The basic division of function was clear. The King could not legislate, but only accede to legislation. The Parliament supervised the execution of the law, but must not itself execute. This was the basis of the theory of the balanced constitution, a theory which we may label as a partial separation of functions, for there was a sharing of the legislative authority, but a fundamental division of function between executive and legislature. The extent to which Locke may be described as “the Father of the United States Constitution” should now be somewhat clearer. Fundamentally this partial separation of functions is the theory upon which the relationship between the President and Congress was established. The legislative function was given to Congress, the executive function to the President, but the President had a veto over legislation. Apart from the fact that the President’s veto could be overridden, the major difference between the Americans and Locke on this point was that the Constitution gave the President a share of the legislative function without his being in the legislature, whereas in England the position of the King as a member of the legislative branch seemed to give a very different flavour to the relationship. But did it? If the King’s legislative function was confined to a veto, just as is the President’s, then whether he was formally a member of the legislative branch or not is unimportant. What is much more important is the power of King or President to influence or coerce the legislature. But neither Locke nor the Founding Fathers saw the executive as a “legislative leader” who would actively make the law in this way. Locke strongly condemned corruption in elections, and the use by the executive of bribery to ensure that legislators would support a particular point of view. “To prepare such an Assembly as this, and endeavour to set up the declared Abettors of his own Will … is certainly a great breach of trust… .”⁴⁸ Nor should we see Locke as a theorist of cabinet government, for when he was writing, the idea of “a single person” as the executive dominated men’s minds. True, the “single person,” whether King or Protector, needed ministers and advisers, and subordinate magistrates, but it mattered little whether or not they were members of either House of Parliament, except in so far as the practical needs of government required. It was the single person who was to be subjected to control, not his subordinates, who were simply his instruments. The separation of persons did not much interest Locke, therefore, because the ministers’ membership of the legislature was not so important to him as their ability to control it by corrupt means. As the seventeenth century closed and the eighteenth began, however, the building up of the cabinet focused much more attention on this aspect of government; and the complete exclusion of officeholders, enacted in the Act of Settlement of 1701, if it had not been later amended, would have created a system of government in Britain not far removed from that which was later to be established in France, under the Constitution of 1791, as a consequence of deference to the idea of the separation of powers.

      We have, then, already in Locke some of the major elements of the theory of balanced government, the sharing of the legislative authority, and the division of the functions of government. A major difference between Locke and the eighteenth-century writers, both in England and later in the United States, was his neglect of the judicial function. Locke did not attribute, as Lawson had done, an autonomous judicial function to the House of Lords. If we add this further dimension, plus a greater emphasis upon mixed government than Locke had given, the theory of the balanced constitution is almost complete; but this greater emphasis upon mixed government in eighteenth-century theory is important, for it is true to say that the doctrine of the separation of powers shows a much clearer influence in the work of Locke than it does in early eighteenth-century writings in England. In the latter the doctrine was subordinated to the theory of mixed government, whereas John Locke’s vocabulary and approach were much nearer those of his contemporaries who had personally experienced a system of government without King or House of Lords.

      The relatively clear division of the functions of government that had been evolved in the later seventeenth century became somewhat blurred as the theory of the balanced constitution was established in the eighteenth. The strong emphasis upon the legislative and executive functions which we find in the work of Locke and his predecessors was closely related to the seventeenth-century need to set limits upon royal power, and to a lesser extent upon the power of Parliament; but with the relatively firm position achieved for the monarchy by the Revolution Settlement a completely new situation arose. The dominant political theory was a conservative one, a concern to maintain the “perfect balance” which it was believed had been achieved within the system of government. As Dean Swift wrote in 1701: “I see no other course to be taken in a settled state, than a steady constant resolution in those, to whom the rest of the balance is entrusted, never to give way so far to popular clamours, as to make the least breach in the constitution.”⁴⁹ As a result there was a tendency to place the emphasis once again upon a list of the “parts of sovereignty” similar to those that had earlier been put forward by writers who were more interested in enumerating the contents of sovereign power than in settling limits to arbitrary rule. The fact is that a straightforward classification into two or even three “powers” of government was inadequate for the theory of the balanced constitution, for this was firmly based upon two propositions: first, that the legislative authority was shared between King, Lords, and Commons; second, that each of these had, in the words of John Toland, “their peculiar Priviledges and Prerogatives.”⁵⁰ Thus there must be three distinct sets of “powers and priviledges” in addition to the legislative power. The parts of the sovereign power were parcelled out, therefore, among the three branches of government. Thus William Stephens in 1699 divided up the powers of government, other than the legislative, giving the executive power the power of making war and peace, and the power over the mint to the King, the “last appeal” in all cases of law to the Lords, and the power of raising money for the support of the government to the Commons.⁵¹

      In the first half of the eighteenth century the theory of mixed government was in the ascendency again, more so, indeed, than ever before. But it was no longer the undifferentiated theory of mixed government that had preceded the Civil War. The ideas behind the separation of powers were added to it so that each element of the mixed government might wield an independent and co-ordinate authority that gave it the ability to check the exercise of power by the other branches. Thus the principle of functionally differentiated agencies became an integral part of the theory of the balanced constitution, and the exact articulation of their functions, and the interrelationships of the agencies and their members, became a major concern of political writers; for “in order to preserve the balance in a mixed state, the limits of power deposited with each