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The Origins Of Modern Constitutionalism
The Separation of Powers
by Wormuth, Francis D.


The discrimination and enumeration of governmental functions is nearly as old as government itself. The functions recognized will of course depend upon the character and activities of the government. Aristotle found three governmental functions in the Greek cities of his day: deliberation on public affairs, constitution of magistrates, and exercise of judicial power. According to Dionysius of Halicarnassus "the three most important and vital matters" were the election of magistrates, the making and repealing of laws, and the making of war and peace.1 In the sixteenth and seventeenth centuries some five or six elements of sovereignty were recognized. Sir Walter Raleigh's list is perhaps representative: it included legislative power, the appointment and removal of magistrates, the pardoning power, war and peace, and "highest or last appeals."2 The champions of sovereignty, however — Bodin and Hobbes and Filmer — insisted that legislative power was critical and that all other powers derived from and depended upon this single sovereign function.

In England a local enumeration arose. In the Middle Ages the scheme of writs by which royal justice was carried out included the original writs, or writs out of Chancery, by which actions were begun, and the judicial writs issued by

courts of law before and after judgment. A special group of judicial writs were the writs of execution, by which judgments were satisfied. This analysis of writs found its way into public law in the fourteenth century treatise Modus Tenendi Parliamentum.3 Second on the calendar in Parliament, said the Modus, should be legislation against defect of laws "original, judicial, and executive." In the seventeenth century there was a great deal of interest in Parliamentary procedure, and the old Modus was studied carefully. Either from this source or directly from the classification of writs, the threefold enumeration passed into ordinary speech. So we find Henry Parker, an able Parliamentary apologist, writing that "without some magistracy to provide new orders, and to judge of old, and to execute according to justice, no society could be upheld."4 John Sadler, "a general scholar and an accomplished gentleman, ... though it must be owned he was not always right in his head," was led by his regard for the sacred number three to formulate an analysis of government in terms of a threefold separation of powers.5

It may be considered, that many kingdoms, and commonwealths (that were not kingdoms) in all ages did consist of three estates (as of three principles in nature, or bodies natural); which might occasion the phrase of Tribe, in others besides the Romans, who in three estates, were not so ancient as the Grecians or Egyptians; that I speak not of the Gauls, Britons, or the eastern nations.

And if any would observe, it might be possible to find the prophets hinting a trinity in divers kingdoms or estates; and that not only for molding, but for overthrowing them: besides the three Captivities, or three overthrowings of the Jewish state; and the three blows of the goat on the ram in Daniel, as alluding to the three great battles which did break the Persian empire.

And why may not the sacred Trinity be shadowed out in bodies politic, as well as in natural? And if so, our three estates may be branched as our writs, into original, judicial, and executive; as shadows of the Being, Wisdom, and Activity Divine.

If I may not grant, yet I cannot deny original power to the Commons, judicial to the Lords, executive to the King; as the spirit to the body, or if you will, the head (or fountain of sense and motion) ; but he must see by two eyes, and hear by two ears [the two Houses], as I touched before, yet his very pardoning although it be by law much limited, doth seem to speak his power executive: and so his writs do speak aright: Because my Courts have so, and so judged: Therefore I do so, and so command the Judgment shall be executed. And if any will assert the militia, to this power executive, I shall also grant it to the King; so that it may always be under the power original and judicial.

This might belong to the Lords, and that to the Commons, and the plain truth is, I do not find more arguments to prove the judicial power to belong to the Lords, than I do for the legislative in the Commons: And (as it seemeth to be above, so below also) it may be much disputed, that the legislative, judicial, and executive power, should be in distinct subjects by the law of nature.

For if law-makers be judges of those that break their laws, they seem to judge in their own causes: which our law, and nature itself so much avoideth and abhorreth. So it seemeth also to forbid both the lawmaker and the judge to execute: and by express act of Parliament, it is provided, that sheriffs be not justices, where they be sheriffs. But if execution be always consonant to judgment, and this to law; there is still most sweet harmony, and as I may say, a sacred unity in trinity represented.

But this curious analysis is a political sport. The classification of powers which became established in the Civil War period and which endured until the middle eighteenth century was the twofold division, legislative and executive. When the term judicial power was used, it was as a synonym for executive power rather than as a third function of government.

I first find this analysis in a speech of Nathaniel Fiennes against the bishops in 1641.6 It soon gained general acceptance. Philip Hunton recognized power architectonical or legislative and gubernative or executive. "There are two parts of the supreme power, the legislative and the executive," wrote Sir Robert Filmer.7 Of course there was, as these authors asserted, an inherent difference between the formulation of policy and the administration of the policy formulated, but the analysis had other features besides accuracy to recommend it. It was a convenient weapon against the bishops, and so Lord Brooke in 1642 argued that they possessed only a "judicative, or declarative power, being entrusted with the explication, application, and execution of the laws: but not as the king and Parliament, who have a legislative power."8 The same argument could be turned against the king. William Ball justified the execution of Charles on the ground that power juridicent, or lawmaking power, belonged to the people, power juritenent, or law-administering, to the king. The king was therefore accountable to the people.9

Certain implications for political conduct resulted from this distinction. When the House of Commons abandoned its attempt to convict the Earl of Stafford, the king's minister, by judicial process and resorted to a bill of attainder, Lord Digby protested: "I know, Master Speaker, there is in Parliament a double power of life and death by bill, a judicial power, and a legislative: the measure of the one, is what's legally just, of the other, of what is prudentially and politically fit for the good and preservation of the whole. But those two, under favor, are not to be confounded in judgment. We must not piece up want of legality with matter of convenience, nor the defailance of prudential fitness, with a pretence of legal justice."10

From the notion that persons should be tried only by settled rules to the proposition that legislative power and executive or judicial power should be vested in separate hands was a brief step. In 1645 John Lilburne left the Army rather than take the oath of the Presbyterian Covenant which was exacted by the Scots as the price of their assistance to the Parliament. Immediately he resumed his career of controversy over private and public grievances and came into collision with the House of Commons. He was called before the Committee of Examinations, where he protested that he should not be subjected to arbitrary process but was entitled to the benefit of the settled rules of law.

"I should much desire to know what you conceive of the Committee of Examinations; for either it is a court of justice, or no court of justice, and either it is tied unto rules, or not tied; but if it be a court of justice, and tied unto rules, when it sits upon criminal causes betwixt man and man, concerning life, liberty, or estate, of all which three they there take cognizance, methinks, they should observe the method of other courts of justice."11 From his experience with the Commons Lilburne formulated the rule, first stated in 1645, that legislators should not be justices, for they would then execute the law as well as make it.12 Thereafter the separation of legislative and executive powers was a cardinal principle of Leveller doctrine. The argument is well stated by Isaac Penington, a radical who later became prominent in the Quaker movement.

Execution is the life of the law. ...

Now that which will make the execution most certain is a clear rule prescribed to them who are to execute, whereby they may be rightly guided in the administration, and left, as little as may be, to determine or order things according to their own present apprehensions and judgments, lest at that back door, arbitrary government (which is the foundation of tyranny) in a sudden creep in. ... And upon this ground it seemeth to me improper for Parliaments to intermeddle with matter of government, further than to settle it in fit hands and within just bounds: because they are entrusted with an arbitrary power, which is absolutely necessary to the work whereunto they are called : they are to redress things at present for which there is as yet no law: and to provide future remedies for things amiss which the law did not foresee. ... A Parliament may far more easily err in government than a King or ordinary Council, for they have, or should have their rule to act by, but a Parliament act by mere supremacy, by power paramount, and from their determinations, there is no orderly appeal.13

It seems, then, that the first purpose for which the separation of the legislative and executive powers was advocated was to insure that accused persons be tried by the known procedures of courts of justice and convicted by settled rules previously enacted, rather than according to the considerations of policy which moved legislative bodies. This was distinctly reminiscent of the arguments offered at an earlier date against the Stuart doctrine of reason of state. Now, however, the Parliamentary champions in their turn adopted the apology of reason of state. Henry Parker wrote against Lilburne, "if you were not so unskilled in the theory, as you are in the practice of the law, you would not upon all occasions so often insist upon inconveniences likely to ensue to yourself, and take no notice of public mischiefs. You would then be satisfied, that your judges ought rather to admit of a mischief to you, than of an inconvenience to the state: although you perpetually urge them to admit of mischief to the state, rather than inconveniences to you."14

There was a second argument in favor of the separation of powers. Parliament was thought of as an inquisitorial body for the supervision and correction of the administration. But if Parliament itself undertook to administer the law, this advantage was lost; a complaint could not be taken with any prospect of success from a decision of Parliament as an administrative body to Parliament as the legislative supervisor. In 1649 Lilburne was imprisoned and interrogated by the Council of State of the commonwealth government, and again he defied his captors in the torrential language for which he was famous. He told Bradshaw, President of the Council of State:15

But Sir, give me leave further to aver unto you, and unto this principle and averment I will venture my life and being, and all I have in the world: That if the House had by a proclaimed or declared law, vote, or order, made this Council (as you call yourselves) a court of justice, yet that proclaimed or declared law, vote, or order, had been unjust and null, and void in itself; and my reason is, because the House itself was never (neither now, nor in any age before) betrusted with a law-executing power, but only with a lawmaking power.

And truly, Sir, I should have looked upon the people of this nation as very fools, if ever they had betrusted the Parliament with a law-executing power, and my reason is, because, if they had so done, they had then chosen and empowered a Parliament to have destroyed them, but not to have preserved them (which is against the very nature and end of the very being of Parliaments, they being by your own declared doctrine, chosen to provide for the people's weal, but not for their woe). ... And Sir, the reason of that reason is, because it's possible, if a Parliament should execute the law, they might do palpable injustice, and mal-administer it, and so the people would be robbed of their intended and extraordinary benefit of appeals; for in such cases, they must appeal to Parliament either against itself, or part of itself; and can it be imagined they will ever condemn themselves, or punish themselves? Nay will they not rather judge themselves bound in honor and safety to themselves, to vote that man a traitor, and destroy him, who shall so much as question their actions, although formerly they have dealt never so unjustly with them? ...

But yet Sir, with your favor, for all this, I would not be mistaken, as though I maintained the Parliament had no power to make a court of justice; for I do grant they may erect a court of justice to administer the law, provided, that the judges consist of persons that are not members of their House; and provided, that the power they give them be universal; that is to say, to administer the law to all the people of England indefinitely, and not to two or three particular persons solely, the last of which for them to do is unjust, and altogether out of their power. And therefore Sir, to conclude this point, it not being in the power of the whole Parliament to execute the law, they can give no power to you their members to meddle with me in the case before you; for an ordinary court of justice (the proper administrator of the law) is the only and sole judge in this particular; and not you gentlemen, no nor your whole House itself.

Certain implications for jurisprudence follow from the separation of powers. If the legislature ought not to deal with particular cases, it should confine itself to the enactment of general rules; if the administration should apply only known and settled rules, retroactive legislation is improper. The notion that legislation should be general and prospective is, of course, Aristotle's conception of the impersonal "rule of law," and antedates the theory of the separation of powers. But never before had it been derived from or related to a functional analysis of institutions. So far as English law is concerned, it was a fairly novel doctrine in the seventeenth century. The practice of enacting special legislation was as old as Parliament itself. Bracton and Coke, following Justinian's Code, had opined that a measure should be applied to the future rather than the past, but this was no more than a rule of statutory construction. How could the Leveller doctrine be implemented? It was not possible to ask the administration to ignore acts of the legislature which it believed to be improper, for this would make the executive independent of the legislature. The Levellers agreed with conservative Independents like Ireton that the war had been fought for the precise purpose of making the executive subordinate to the legislature. Moreover, one of the two advantages of the separation of powers — legislative scrutiny of the administration — would be lost if the administration were made co-ordinate with the legislature. On the other hand, the first purpose of the separation of powers — the trial of persons by general rules of law — would be defeated if bills of attainder and discriminatory legislation were actually put into execution. Lilburne was confronted with the problem in 1653. In 1652 he had been banished by an act of Parliament which made it a capital offense for him to return. Eighteen months later he returned to England and was brought to trial for violation of the act. His defense became another principle of the Leveller creed. Lilburne appealed to the sovereign people, acting through the juries, to exercise that supervision over the legislature which his view of the legislative function made necessary. He contended that in sentencing him by statute the Parliament had exceeded its power, and he persuaded the jurors that they were the proper authority to determine the law in the case.16 The jury voted an acquittal. Lilburne's argument was astonishingly like the old Greek notion that the jury is a kind of surrogate for the sovereign people and should therefore determine the "constitutionality" of particular measures. It was, moreover, an anticipation of Thomas Jefferson's contention that constitutional interpretation belongs to the people.

Lilburne made another application of his general doctrines. If men were to be tried by known and settled rules, the monopoly enjoyed by the lawyers must be broken. The law must be brought out of obscurity, rendered into English, and reformed so that every man could understand it. This aspect of the Leveller program arose as a result of a suit for libel brought against Lilburne by Colonel King in 1646. "This suit," wrote Richard Overton, "occasions Mr. Lilburne to look into the proceedings of the law: finds it full of tricks and quillets, snares, forms, and punctilians, irrational and tending to the ruin of the people."17 Throughout the commonwealth period the more radical sectarians kept up an outcry for simplification of the laws. Cromwell himself was sympathetic to their demands and as Protector carried out some of the proposed changes.

There was agitation not only to make the law more accessible to the people but to reform the substance of it, stripping away the "intolerable marks" of Norman bondage. Overton wrote to the House of Commons in 1646, "Ye know that the laws of this nation are unworthy a free people, and deserve from first to last, to be considered, and seriously debated, and reduced to an agreement with common equity, and right reason, which ought to be the form and life of every government."18 This proposal went beyond the implications of the merely mechanical doctrine of the separation of powers.

The principle of the separation of powers soon spread beyond the Leveller camp. John Milton in his Eikonoklastes observed that "In all wise nations the legislative power, and the judicial execution of that power, have been most commonly distinct, and in several hands." The author of Confusion Confounded (1654) attacked both the Rump and the Little Parliament: "Assemblies of this nature are only to make laws, and not to execute them, for being unlimited, they are not so fit to judge as inferior courts, nor is it reason to take away without evident necessity from any man, the benefit of the laws already established." A True State of the Case of the Commonwealth, a book published in 1654, apparently at the instance of the Cromwellian government, declared that the constitutional settlement proposed by the Rump was objectionable on two grounds: because it provided for a Parliament always in session, and because it placed legislative and executive power in the same hands.

... the supreme powers of making laws, and of putting them in execution, were by that bill to have been disposed in the same hands; which placing the legislative and executive powers in the same persons, is a marvelous inlet of corruption and tyranny: whereas in the keeping of these two apart, flowing in distinct channels, so that they may never meet in one (save upon some transitory extraordinary occasion) there lies a grand secret of liberty and true government. ... And therefore it was the wisdom and care of our ancestors, so to temper the government of our nation in time past, that they left the supreme law-making power among the people in Parliament, to sit at some times, and betrusted the execution of the law, with the mysteries of government, in the hands of a single person and his council.

Cromwell declared that a "perpetual legislative" like the Rump necessarily led to the assumption of executive power by the legislature, and consequently to arbitrary decisions in private cases.19 The Instrument of Government and, after it, the Humble Petition and Advice were praised by their sponsors as incorporating the wise principle of separation of powers. James Harrington said, "In a commonwealth neither is accumulation of magistracy just, nor the confounding of executive and legislative magistracy safe."20 Marchamont Nedham in 1656 published The Excellency of a Free State, in which he declared that:

A fifth error in policy has been this, viz. a permitting of the legislative and executive powers of a state, to rest in one and the same hands and persons. ... In the keeping of these two powers distinct, flowing in distinct channels, so that they may never meet in one, save upon some short extraordinary occasion, consists the safety of a state.

The reason is evident; because if the law-makers (who ever have the supreme authority) should also be the. constant administrators and dispensers of law and justice, then (by consequence) the people would be left without a remedy, in case of injustice, since no appeal can lie under heaven against such as have the supremacy, which, if once admitted, were inconsistent with the very intent and natural import of true policy: which ever supposeth, that men in power may be unrighteous; and therefore (presuming the worst) points always, in all determinations, at the enormities and remedies of government, on the behalf of the people.

For the clearing of this, it is worthy your observation, that in all kingdoms and estates whatsoever, where they have anything of freedom among them, the legislative and executive powers have been managed in distinct hands: that is to say, the law-makers have set down laws, as rules of government, and then put power in the hands of others (not their own) to govern by those rules; by which means the people were happy, having no governors, but such as were liable to give an account of government to the supreme council of law-makers. And on the other hand, it is no less worthy of a very serious observation, that kings and standing states never became absolute over the people, till they brought both the making and execution of laws into their own hands : and as this usurpation of theirs took place by degrees, so unlimited arbitrary power crept up into the throne, there to domineer o'er the world, and defy the liberties of the people.

Even the Rump learned the lesson at last. In January, 1660, at its last, brief restoration by Monk, it published a declaration of its purposes and policies which contained this striking passage:

There being nothing more essential to the freedom of a state, than that the people should be governed by the laws, and that justice be administered by such only as are accountable for mal-administration, it is hereby further declared, that all proceedings touching the lives, liberties and estates of all the free people of this commonwealth, shall be according to the laws of the land, and that the Parliament will not meddle with ordinary administration, or the executive part of the law: it being the principal care of this, as it hath been of all former Parliaments, to provide for the freedom of the people against arbitrariness in government.21

To this Sir Roger L'Estrange replied that the separation of powers was to be found in its most perfect form in what he conceived to be the traditional mixed monarchy.

I wish we now could, or could ever hope, under our commonwealth (whatever promises may be made to us) so perfectly to distinguish the legislative from the ministerial authority, as once we did; when the House of Commons had not the power of a court leet to give an oath, nor of a justice of the peace, to make a Mittimus: Which distinction, doubtless, is the most vital part of freedom, and far more considerable to poor subjects, than the pretended rotation; as on the contrary, the confusion of them is an accomplishment of servitude.22

The doctrine of the separation of powers was thereafter an accepted principle of constitutional law. As we shall see, it played a central part in the attack on the crown and the cabinet system in the eighteenth century. It found recognition in all American constitutions. But whereas Lilburne predicated its usefulness in part on the inferiority of executive to legislature, which made possible effective legislative scrutiny of executive action, the American constitutions, like the Instrument and the Petition and Advice, combined the separation of powers with the idea of balance expressed in the doctrine of mixed monarchy, and made the executive co-ordinate with the legislature.

NOTES

( 1 ) Roman Antiquities, Book IV, 20.

(2) The Prince, or Maxims of State, in Somers Tracts (London, 1811), iii, 283.

(3) Latin and English texts are given in M. V. Clarke's study, Medieval Representation and Consent (London, 1936).

(4) Observations upon Some of His Majesty's Late Answers and Expresses (1642), p. 13, reproduced in William Haller, Tracts on Liberty in the Puritan Revolution, 1638-1647 (New York, 1938), iii.

(5) Rights of the Kingdom: or, Customs of Our Ancestors, Touching the Duty, Power, Election, or Succession of Our Kings and Parliaments, Our True Liberty, Due Allegiance, Three Estates, Their Legislative Power, Original, Judicial, and Executive, with the Militia (1649). The quotation is from the edition of 1682.

(6) Speeches and Passages of This Great and Happy Parliament (London, 1641), p. 33.

(7) Observations upon Forms of Government (ed. of 1684), p. 147.

(8) A Discourse Opening the Nature of That Episcopacy, Which Is Exercised in England, in Haller, op. cit., ii.

(9) Power Juridicent, and Juritenent: Or, Power of Lawmaking, and Law-Administering, Discussed, and humbly Presented to the Parliament of England (1650).

(10) Speeches and Passages, p. 219.

(11) The Copy of a Letter, from Lieutenant-Colonel John Lilburne, to a Friend (1645), p. 14.

(12) Theodore C. Pease, The Leveller Movement (Washington, 1916), p. 110.

(13) Quoted in Margaret James and Maureen Weinstock, England during the Interregnum (London, 1935), pp. 153-154.

(14) A Letter of Dire Censure and Redargution to Lieut. Col. John Lilburne (London, 1650).

(15) Lilburne, The Picture of the Council of State (2d ed., 1649).

(16) Pease, op. cit., p. 340 ff.

(17) An Alarm to the House of Lords (1646), p. 6.

(18) A Remonstrance of Many Thousand Citizens.

(19) Speech of April 21, 1657, in S. C. Lomas, ed., Carlyle's Cromwell (London, 1904), iii, 93-95.

(20) The Art of Lawgiving (1659), in Toland, ed., The Oceana and Other Works of James Harrington (3d ed., 1747), p. 465.

(21) A Declaration of the Parliament Assembled at Westminster, January 23, 1659 (1659-60).

(22) A Plea for a Limited Monarchy, as It Was Established in this Nation, before the Late War (London, 1660). See chap. 7, n. 12, supra.

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