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

against the “ministerial system” of Sir Robert Walpole. Bolingbroke was well acquainted with Montesquieu, and the latter undoubtedly gained much of his knowledge of the separation of powers doctrine from Bolingbroke and his writings.⁶² Walpole in his fight against the Peerage Bill had argued that too much independence in the branches of the government would create “a state of war, instead of a civil state,”⁶³ and the later defenders of his own ministerial system argued that business could not be carried on or a government subsist “by several powers absolutely distinct and absolutely independent.”⁶⁴ Bolingbroke reported the views of his opponents that corruption was necessary to “oil the wheels of government, and to render the Administration more smooth and easy.”⁶⁵ These men, he said, present the constitution in a ridiculous and contemptible light. For them the constitution is “no better than a jumble of incompatible powers, which would separate and fall to pieces of themselves” without the cement of corruption.⁶⁶ Bolingbroke’s statement of the essence of the constitution is remarkably clear:⁶⁷

      A King of Great Britain is that supreme magistrate, who has a negative voice in the legislature. He is entrusted with the executive power, and several other powers and privileges, which we call prerogative, are annex’d to this trust. The two Houses of Parliament have their rights and privileges, some of which are common to both; others particular to each. They prepare, they pass bills, or they refuse to pass such as are sent to them. They address, represent, advise, remonstrate. The supreme judicature resides in the Lords. The Commons are the grand inquest of the nation; and to them it belongs to judge of national expences, and to give supplies accordingly.

      Bolingbroke emphasized that the division of powers between the three branches was an essential element in this structure. If the King had the legislative as well as the executive powers he would be absolute, and if either of the Houses had both we should have an aristocracy or a democracy. “It is this division of power, these distinct privileges attributed to the King, to the Lords and to the Commons which constitute a limited monarchy.”⁶⁸ Thus a partial sharing and a partial separation of the functions of government among distinct bodies of persons was the fundamental characteristic of the English system of government. Bolingbroke then presented a defence of his view that the independence of the parts of the government, which is subverted by the system of corruption, was perfectly compatible with their “mutual dependency.” The parts of the government have each the power to exercise some control over the others, and they are therefore mutually dependent. This does not mean that they cannot and should not be independent of each other also. Indeed the independence of the branches is a necessary prerequisite to their being interdependent, for if it were not so then “mutual dependency is that moment changed into a particular, constant dependency of one part” on the others.⁶⁹ Thus there would be no balance at all.

      Here then, set out with great clarity, is the English mid-eighteenth-century amalgam of mixed government, legislative supremacy, and the separation of powers. Although playing a subordinate role in this theory, the ideas of the separation of powers doctrine are essential to it. The division of the functions of government among distinct agencies is there, but neither the functions nor the agencies follow the categories of the pure doctrine of the separation of powers, and in one vital function the authority is shared, not divided. The idea of the separation of persons is also very important, demanding at least a partial separation among the agencies of government. There were recurrent attempts to rid the Commons of office-holders and pensioners. In the Act of Settlement provision was made for the exclusion from the House of Commons of all office-holders, which, if it had not been repealed before coming into effect, would have made a very considerable difference to the British system of government. The idea of checks to the exercise of power, through the opposition of functionally divided agencies of government in distinct hands, is there, but it is a much more positive view of the necessary checks to the exercise of power than the pure doctrine envisaged.

      From the point of view of the development of the pure theory of the separation of powers, therefore, the first half of the eighteenth century represented a retreat from the positions reached in the Civil War and in the work of John Locke. The more revolutionary theory had been assimilated by, and subordinated to, the older theory of mixed government, and the English attitude towards the Constitution was long to remain in this mould. But of the two doctrines, the doctrine of the separation of powers represented the thought of the future, the theory of mixed government the thought of the past. The ascendency of the doctrine of the separation of powers in America and on the continent of Europe was to come as the result of the work of Montesquieu, and on the wave of new revolutions which again swept away the assumptions underlying the theory of mixed government, just as they had been swept away in England, for a time at least, when Charles I laid his head upon the block.

FOUR

       Montesquieu

      THE NAME most associated with the doctrine of the separation of powers is that of Charles Louis de Secondat, Baron Montesquieu. His influence upon later thought and upon the development of institutions far outstrips, in this connection, that of any of the earlier writers we have considered. It is clear, however, that Montesquieu did not invent the doctrine of the separation of powers, and that much of what he had to say in Book XI, Chapter 6 of the De l’Esprit des Loix was taken over from contemporary English writers, and from John Locke.¹ Montesquieu, it is true, contributed new ideas to the doctrine; he emphasized certain elements in it that had not previously received such attention, particularly in relation to the judiciary, and he accorded the doctrine a more important position than did most previous writers. However, the influence of Montesquieu cannot be ascribed to his originality in this respect, but rather to the manner and timing of the doctrine’s development in his hands.

      Long before the publication of De l’Esprit des Loix Montesquieu had become widely known and respected through the publication of the Lettres persanes and the Considérations sur les causes de la grandeur des Romains. The appearance of his great work was awaited with impatience, and, once published, it quickly ran through several editions. When the work appeared it was clearly not a piece of transient political propaganda, as had been many of the writings we have so far surveyed—it was the result of twenty years of preparation, and was intended as a scientific study of government, encompassing the whole length and breadth of history, and accounting for all the factors affecting the political life of man. Montesquieu, in his Preface, made it clear what the work contained:² “I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them; and that every particular law is connected with another law, or depends on some other of a more general extent.” These principles are not drawn from the writer’s prejudices, but “from the nature of things.” Montesquieu intends to show the way in which the laws of each State are related to the nature and principles of its form of government, to the climate, soil, and economy of the country, and to its manners and customs.³ Such a scientific approach rules out the expression of personal likes and dislikes: “Every nation will here find the reasons on which its maxims are founded.” No absolute solutions are proposed, only the necessary relationships between the form of government and the laws are exposed. This claim to scientific detachment gives to Montesquieu’s work a status that no political pamphleteer could claim. The doctrine of the separation of powers is embedded in this examination of cause and effect in the political system. It is no longer an isolated doctrine, taken up when political advantage makes it expedient, and put off when no longer needed; it is part of the relationships of a particular type of legal system; and furthermore, it is a necessary characteristic of that system which has political liberty as its direct aim. De l’Esprit des Loix was hailed as the first systematic treatise on politics since Aristotle; not a desiccated, boring treatise for the expert alone, but rather as a work the brilliant style of which made it an object of attention for all educated men. Indeed, Voltaire caustically remarked that it was Montesquieu’s style alone which retrieved a work so full of error.⁴