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

no other indication of a belief in the separation of powers in a “monarchy.” On the contrary, Montesquieu clearly asserted the indivisibility of the supreme power in the hands of the monarch,²⁴ and the subordination of the “intermediary powers.”²⁵ We must, therefore, see Montesquieu’s moderate monarchy as governed by law, but not as a limited monarchy in the English sense, nor as a system of mixed government or the separation of powers.

      Monarchy for Montesquieu was government by the law, through the recognized channels by which the royal power must flow. The idea of a separation of agencies and functions, in part at least, is implicit and explicit in his treatment of monarchy. The judges must be the depository of the laws; the monarch must never himself be a judge, for in this way the “dependent intermediate powers” would be annihilated.²⁶ The king’s ministers ought not to sit as judges, because they would lack the necessary detachment and coolness requisite to a judge.²⁷ There must be many “formalities” in the legal process in a monarchy in order to leave the defendant all possible means of making his defence,²⁸ and the judges must conform to the law.²⁹ In the monarchy, then, power is exercised in a controlled way, but it is not the separation of powers in the sense in which we have used this term, at any rate as far as the legislative and executive powers are concerned. There is considerable emphasis upon the role of the judges, but “the prince is the source of all power,” and he clearly exercises both the legislative and executive powers within the fundamental constitution.³⁰ The checks upon the royal power operate as a result of the existence of the various orders of society through which that power must be channelled, but these “intermediate powers” do not even include a body of representatives of the people. The people’s safeguard is in the principle of monarchy, honour, which, by definition, infuses the rule of the monarch over his people.³¹ This, then, is what Montesquieu seems to have considered best for France; it is the ancestral constitution that had been for a time subverted, a constitution in which the King did not exercise a capricious and arbitrary power, but not a constitution that can be described as embodying the separation of powers. Indeed we must not be confused by the terminology Montesquieu uses. Undoubtedly today his “monarchy” would be described as a despotism, if a benevolent one. His constitutional monarch was in the tradition of French, not English, thought. It certainly is not the monarchy that the seventeenth-century constitutional battles produced in England. Even Charles I could hardly have hoped that a King of England would exercise the power Montesquieu accords his monarch.³²

      When we turn from the description of the monarchy to the discussion of the English Constitution we must first consider two difficulties. What were Montesquieu’s views on mixed government, and what form of government did he believe England to have? Montesquieu’s treatment of mixed government is characteristic of the problems of interpretation he presents. At the beginning of his work, when enumerating the types of government, he did not consider mixed government at all. There is no direct mention of this idea which had been so important in English political thought for centuries, and which had also figured in the work of Hotman and others in France. Montesquieu writes of “moderate” governments, but these are the uncorrupted forms of monarchy and republic. At one point he seems to be saying that a mixed constitution is impossible, or at least that he knows of none that exists.³³ Again the parallel with Bodin is striking. When Montesquieu turns in Book XI to his discussion of England, however, he adopts a very different approach.

      In this form of government the executive power should be in the hands of a monarch, and the legislative power committed to the body of the nobles and to that body which represents the people, “each having their assemblies and deliberations apart, each their separate views and interests.”³⁴ This is the fundamental constitution of a free state: “The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.” Montesquieu immediately follows this sentence with a reference to “these three powers,” by which he seems to mean King, Lords, and Commons, not legislature, executive, and judiciary. This is clearly a system of mixed government, and in the rest of Book XI Montesquieu refers to mixed systems in glowing terms, whether in reference to the Gothic constitutions of Europe, or to the harmony of power in the government of Rome when it consisted of a mixture of monarchy, aristocracy, and democracy.³⁵ How do we reconcile these references with the earlier chapters of the work? One answer, perhaps, is simply to say that they are irreconcilable and leave it at that. Montesquieu drew his inspiration from diverse sources and was unable to integrate all his ideas into a single theoretical framework. It is hardly surprising that he failed to reconcile completely the two models of government that he drew from Bodin and from Bolingbroke. A rather different approach is to view Montesquieu’s descriptions of despotism, monarchy, and republic as “ideal types” to which governments in practice would only imperfectly conform, so that imperfect examples of actual governments might contain elements of more than one type. There is some evidence that Montesquieu was thinking in this way. For example he writes: “The nearer a government approaches towards a republic, the more the manner of judging becomes settled and fixed.”³⁶ And in Book VIII, where he discusses the way in which the principles of the three forms of government can be corrupted, he clearly envisages that States can exist that only imperfectly conform to the principles of these three forms. Again, reference to Bodin may help us here. Bodin tells us that his three forms of commonwealth are “ideal types.”³⁷ He rejects altogether the idea of a mixed form of State, because of the logical and practical impossibility of the division of the sovereign power; but he distinguishes between forms of State and forms of government, allowing that the form of government may differ from the form of State in which it operates, so that a monarchy may, in reality, operate as an aristocracy or democracy, and also that combinations of forms of government are possible.³⁸ Montesquieu seems to view England in this light. Thus he refers to it as “a nation that may be justly called a republic, disguised under the form of a monarchy”;³⁹ and again, he says that England “having been formerly subject to an arbitrary power, on many occasions preserves the style of it, in such a manner as to let us frequently see upon the foundation of a free government the form of an absolute monarchy.”⁴⁰

      However, the problem is further complicated by the view that, in Book XI, Chapter 6, Montesquieu was creating an ideal type of a “constitution of liberty,” with England as its source, but that he was not describing the English Constitution as it actually existed. When Montesquieu wrote of “England” here he was writing of an imaginary country, as in the Lettres persanes: “l’Angleterre de Montesquieu c’est l’Utopie, c’est un pays de rêve.”⁴¹ Thus in certain respects Montesquieu’s statements in this chapter differ considerably from what he actually knew to be the case in England. For example, he writes of the judiciary as if it contained no professional judges, as if juries were judges of both fact and law. The reality of English life was, as Montesquieu himself notes elsewhere, quite different from the ideal situation depicted in XI, 6.⁴² If, therefore, this chapter also constructs an “ideal type,” we must consider it on its merits, and not concern ourselves with the long controversy over the correctness of Montesquieu’s description of the early-eighteenth-century constitution of England.⁴³ But how does this ideal type relate to his ideal types of monarchy, despotism, and republic? Is it a fourth and quite distinct category, or a sub-category of one of them? These questions are no doubt unanswerable, for they demand from Montesquieu a consistency he does not have. We must accept these inconsistencies, and make the best of them.

      This, then, is the framework within which is set the famous chapter on the English Constitution, which has had greater influence than any other part of the De l’Esprit des Loix, the chapter which further evolves the doctrine of the separation of powers. As with all the previous writers we have surveyed, it is still not a “doctrine,” nor does the term “separation of powers” appear in the text, although Montesquieu does assert that liberty is lost if the three powers are not “separated.”⁴⁴ What does Montesquieu have to say about the separation of powers? A remarkable degree of disagreement exists about what Montesquieu actually did say. Two broad streams of interpretation of his thought since the latter part of the eighteenth century can be detected. One, largely associated with the continent of Europe,