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

      This theory of the constitution was stated in 1701 by Sir Humphrey Mackworth in terms little different from those used by Charles I in 1642.⁵³ The mixed constitution is essential to a happy and secure State, but in this constitution the legislative authority is shared, whilst the other functions of government are divided so that there is “a prudent distribution of power.”⁵⁴ The three branches of the supreme authority must have “several particular powers lodged in them,” in order that each may prevent the encroachment of the others. The King must have the power of making war and peace, of command of the forces, of the calling and dissolving of parliaments, and of the appointment of all officers, ecclesiastical, civil, and military. The particular powers of the Commons are the levying of money and the impeachment of Ministers, while the Lords are entrusted with the “right of judicature.” Thus within the umbrella of the legislative power the three branches exercise separate powers that enable each of them to check the others.⁵⁵ Each of these branches must be “limited and bounded by one another, in such a manner that one may not be allowed to encroach on the other.” This is the “infallible touchstone” of a happy constitution.⁵⁶

      This was the basic pattern of the early-eighteenth-century theory of the constitution, and, in spite of a very poor prose style, Mackworth set it forth faithfully. Discussions about the nature of the constitution took place within this framework, which was itself rarely questioned. Bitter differences of opinion arose, based upon the political issues of the day, but the arguments were couched in terms of the proper articulation of the parts of this constitution, in terms of the details of its “proper” working, not of its own adequacy, or inadequacy. The first half of the eighteenth century in England was not a period of great political writers, and we must look for these arguments about the constitution in the occasional pieces that resulted from the clashes over particular issues of the day. These reveal some of the problems of the theory of the balanced constitution, and of the mechanisms it involved, which were reflected later in the practical working of the Constitution of the United States.

      The Peerage Bill of 1719 provoked perhaps the most interesting discussion of the nature of the balanced constitution and the role of the “partial separation of functions” in this constitution. The Peerage Bill represented an attempt by Whig leaders to “freeze” the size of the House of Lords at 235 peers, and as they at the time controlled the House of Lords, so to continue this control indefinitely. The royal prerogative to create new peers was to be limited to the replacement of peerages which became extinct through failure of issue. In this way the Whig leaders, who feared that the succession of the Prince of Wales to the throne would bring about a new, and to them unfavourable, attitude in the monarchy, hoped to retain control of the government; and perhaps by repealing the Septennial Act also to preserve the existing House of Commons.⁵⁷ The proposal to limit the size of the House of Lords involved a considerable change in the royal authority and provoked a bitter altercation between rival pamphleteers concerning the extent to which this was compatible with the over-all philosophy of the British Constitution. Each side claimed that its position on the Peerage Bill was compatible with that constitution, and indeed that their view was the only one possible that would preserve the constitution. We are thus presented with an extensive discussion of the relationship between King, Lords, and Commons.⁵⁸

      The proponents of the Bill argued that the proposed alteration was necessary in order to give to the House of Lords that degree of independence of the monarch that would enable it to play its proper role as the moderator of disputes between the King and the Commons, and to act as a safeguard for the constitution should the other two branches unite against it. This role could only be safeguarded if the Lords were to be free from the threat of the creation of sufficient new peerages to swamp the existing majority. The existence of this threat rendered it a subordinate branch of the government, not a co-ordinate member as required both by the basic doctrine of mixed government and by the constitutional balance; for these required a threefold, not a twofold, division of governmental power if any one branch was to have a casting vote in disputes. In defence of the Bill Addison wrote: “It is necessary that these three branches should be entirely separate and distinct from each other, so that no one of them may lie too much under the influence and controul of either of the collateral branches.”⁵⁹ The opponents of the Bill, led by Sir Robert Walpole, argued, however, that although each of the branches must be independent of the others, nevertheless it was essential that each branch should exercise a check to the power of the others, if the balance were to be maintained. If the King had the Commons’ power to raise money, then the monarchy would be absolute. If the power of dissolution were to be abolished, then the Commons would “devolve into an ill-contrived democracy,”⁶⁰ and if the prerogative of creating peers were removed the Lords would become an unrestrained aristocracy. It was pointed out also that those who supported the independence of the Lords were not at the same time proposing a means by which the independence of the Commons would be safeguarded from control through “influence.” Steele summed up the fundamental objection to the complete independence of the branches of the government: “The unhappy consequence that must ensue would be that if any discord shou’d arise betwixt them, and each remain inflexibly resolv’d, here the constitution would want a casting power.”⁶¹ Thus deadlock would ensue, and would result in the resolution of the problem by violence, as no other means would be open.

      It is not to be supposed that those who proposed the Peerage Bill really believed in the perfect independence of all three branches of the government, for their plan depended upon their being able to control the House of Commons through the system of influence; the discussion does reveal, however, the two possible approaches to the element of the separation of powers doctrine that we find embedded in this eighteenth-century view of the constitution. Given separate branches of the government exercising distinct but interlocking functions, or sharing in the exercise of a particular function, should the independence-of-each-other of these three branches be as great as possible, or should care be taken to ensure that the independence of each, although real, should be limited by powers in the others to prevent that independence from being allowed to wreck the operation of government altogether? This dispute was a curtain-raiser for the different views about the doctrine of the separation of powers, which were to characterize French and American attitudes later in the century. In the English political disputes of the first half of the eighteenth century the ideas of the doctrine of the separation of powers were applied to the theory of mixed government, and the result was a theory of checks and balances, which was very different from the earlier theory of mixed government; for in the latter the branches of the government were intended to share in the exercise of its functions. In the new doctrine each branch, it is true, was to share in the supreme legislative power, but each was also to have a basis of its own distinctive functions that would give it independence, and at the same time would give it the power to modify positively the attitudes of the other branches of government. In England this theory was applied to the institutions of a mixed monarchy, but it was quite capable of being adapted at a later date to a different set of institutions in which a monarch and a hereditary aristocracy played no part.

      The great political issue of this period was, of course, the use of “influence” in politics, the bribery of electors and the corruption of members of the House of Commons in order to gain a majority favourable to the Ministry. This system of influence can be seen as the first of the links between the executive and legislative branches that formed the basis of the newly developing pattern of cabinet government. In an age when party allegiance alone was not a reliable means of ensuring the support of members of parliament for government policies, the system of influence provided a useful alternative. At the same time corruption can be seen as a means of subverting the balance of the constitution, of uniting powers that should be divided, and reducing to subordination in practice a branch of the government which in theory was co-ordinate in power. The eighteenth century was, therefore, both the age of the emergence of cabinet government, and the age of place-bills, proposed in an attempt to maintain the division between parliament and the executive. The success of the British Constitution can perhaps be attributed to the fact that in the end those who wanted to control the Commons and those who wished the Commons to be free of office-holders were both partially successful.

      The greatest opponent of the system of corruption was Henry St. John, Viscount Bolingbroke,