Constitutionalism and the Separation of Powers. M. J. C. Vile
and executive Power: the one is exercised in making Laws, the other in judging controversies according to such as are made.”34 Milton wrote of the need for the execution of law by local county courts so that the people “shall have Justice in their own hands, Law executed fully and finally in their own counties and precincts,”35 and in 1656 Marchamont Nedham defined those who held the executive power as the constant administrators and dispensers of law and justice.36
It is not clear how far seventeenth-century writers included in the “executive power” aspects of the government machine other than the courts, or included ideas about those functions of government which we should today label “executive” or “administrative,” rather than “judicial.” Certainly many writers mention non-judicial officials and non-judicial functions of the prince. In 1576 Bodin had listed nine major “powers of sovereignty,” including the power to declare war or peace, to coin money, and to tax,37 and in ensuing years similar lists were provided by other writers. Sir Walter Ralegh in producing his list made a distinction between judges and other “magistrates,” such as “lieutenants of shires, marshals, masters of horse, admirals, etc.”38 However, the only consistent, abstract formulation of the “powers of government” was the same basic legislative-executive division that Marsilius had made. These lists produced by Bodin, Ralegh, Hobbes, and Pufendorf, among others, provided perhaps a more realistic and practical approach to the listing of the functions of government than the more abstract categories which finally triumphed under the influence of Locke and Montesquieu, but it was clearly an essential step in the development of the doctrine of the separation of powers for the “powers of government” to be consolidated into a few categories rather than to comprise an extensive list which would also include what we have called the “tasks” of government. Broadly speaking, then, we must see the seventeenth-century abstraction of the functions of government as a twofold one in which “executive” was generally synonymous with our use of “judicial,” and in fact in the latter part of the century the two words were used synonymously.39 Let us then turn, appropriately enough, to John Milton to sum up the dominant seventeenth-century view of the functions of government: “In all wise Nations the Legislative power, and the judicial execution of that power have bin most commonly distinct, and in several hands… . If then the King be only set up to execute the Law, which is indeed the highest of his Office, he ought no more to make or forbidd the making of any law agreed upon in Parliament; then other inferior Judges, who are his Deputies.”40
This is essentially a hierarchical view of government functions in which the over-all judicial function is divided into the legislative and “executive” functions. Such a view naturally tends to inhibit the development of the idea of a threefold division, with a judicial “power” and an executive “power” ranged alongside a legislative “power,” because in one sense judicial and executive are virtually synonymous, and in another sense the executive function is derived from and subordinate to the fundamental judicial power. It took a century, from the English Civil War until the mid eighteenth century, for a threefold division to emerge fully and to take over from the earlier twofold division. However, the notion of an independent “judicial power,” at any rate in the sense of the independence of the judges, goes back beyond the seventeenth century, and during the English Civil War the basis was laid for a threefold division which never quite managed fully to materialize. The need for independent judges had, of course, been emphasized in the sixteenth century, by George Buchanan in 1579,41 and by Richard Hooker who asserted that the King ought not to be the judge in cases of felony or treason, because in such cases he is himself a party to the suit.42 In the seventeenth century both Philip Hunton and Sidney, among others, asserted the need for an independent judiciary, but the view that there were three distinct “powers” of government seems to have emerged during the English Civil War.
At this time there was a great deal of discussion both about the position of the judges, and (rather more) about the judicial powers of the two Houses of Parliament. Thus in 1647 Henry Ireton argued that “the two great powers of this kingdom are divided betwixt the Lords and the Commons, and it is most probable to me that it was so that the judicial power was in the Lords principally … the legislative power principally in the Commons.”43 A tract of 1654 demanded a form of government in which Parliament would refrain from the exercise of that “jurisdictive power” which they had taken upon themselves or their committees for “the judgement of particular causes concerning mens persons and estates,”44 and the Humble Petition and Advice of 1657 placed limits upon the exercise of judicial power by the “other House.”45 The problem of the “judicial power” clearly agitated men’s minds, and the well-known division of legal writs into original, judicial, and executive provided some sort of analogy for the situation which faced them. In 1649 John Sadler used the analogy of the writs to develop a threefold category of government functions, legislative or original, judicial, and executive: “If I may not grant, yet I cannot deny, Originall Power to the Commons, Judiciall to the Lords; Executive to the King.”46 In 1657 the most effective use of the analogy was made by George Lawson who also formulated the threefold legislative, judicial, and executive division of functions and argued it out to a much greater extent than Sadler.47 The use of these terms by Sadler and Lawson was, however, far from the modern usage. They saw the judicial and executive functions, respectively, in terms of judgement, and the carrying out of the sentence of the Court, and in this connection it is interesting to note that for this reason both placed the judicial function before the executive, as is only logical, whereas in the later threefold division of the functions of government it is usual to arrange them with the executive second and the judicial last.
A rather more remarkable attempt to refashion the pattern of thought about the functions of government was made in a work dated 1648, entitled The Royalists Defence, and attributed to Charles Dallison, Recorder of Lincoln, and a moderate royalist. Dallison made a clear distinction between the “soveraigne power of government,” which is in the King, and the authority to judge the law. “The Judges of the Realme declare by what Law the King governs, and so both King and people [are] regulated by a known law,”48 and he justified this division of functions on the ground that the judges are “unconcerned.” Dallison avoided the use of the term “executive power,” for he was in fact splitting the seventeenth-century executive function into two parts, the functions of governing and of judging. In addition, Parliament had the function of making the law, so he arrived at a threefold division of government functions very close to that which came to be generally accepted a century later. “It is one thing to have power to make Lawes, another to expound the Law, and to governe the people is different from both.”49 We shall return to this work when we come to look more closely at the other elements in the development of the doctrine of the separation of powers, but for the moment it is sufficient to note that the cauldron of the Civil War had hastened the evolution of the ideas of the functions of government and formed them into two main streams. The dominant conception was still the twofold division of executive and legislative which reflected an older tradition about the functions of government, but the first elements of a new basis for ideas about these functions were being developed. Although after the Restoration Locke adhered to the older tradition, it was with modifications, and the ideas of the Civil War were not lost, for the elements in Sadler, Lawson, and Dallison all reappear in the theory of the balanced constitution at the opening of the eighteenth century.
By the time of the English Civil War one of the fundamental elements in the doctrine of the separation of powers, an abstract classification of the functions of government into two or three categories, had been developed to a high degree under the impact of the contest between King and Parliament. However, something more was needed before the doctrine of the separation of powers could be fully developed, that is to say the idea that these functions must be placed in distinct hands, in those of separate people or groups of people. This idea did not spring into men’s minds from nowhere; they were led into it through the process of adapting the familiar, age-old theory of mixed government to the problems they faced, and finally, when they found this theory to be no longer relevant to their situation, they replaced it with the new ideas it had fathered. It is therefore to the theory of mixed government that we shall now turn our attention.
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