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

Parliament,¹⁵ and certainly references to Parliament as a court are to be found throughout the seventeenth century. However, Professor Plucknett points out that as early as the first half of the fourteenth century the English judges frankly faced the fact that law was being made by statute, and that their decisions created generally applicable rules. There was, however, no clear distinction drawn between legislative and judicial activities, nor did they work out anything which resembled a theory of law or legislation.¹⁶ Certainly the idea of the creation of new law by Parliament was well understood in the seventeenth century, although the vocabulary of an earlier age persisted. A manual of parliamentary practice of 1628 stated the position thus:¹⁷ “In this Court of Parliament, they doe make new positive Laws or Statutes, and sometimes they inlarge some of them.” The author then observed that “the Judges doe say that they may not make any interpretation against the express words of the Statute.”¹⁸ By the time of the English Civil War it is clear that one of the things which is being contended for is a “legislative power” to make or unmake the positive laws of England. Nevertheless, the fundamental conception of the government as an instrument for distributing justice persisted, for this was in fact still the major aspect of government from the point of view of the citizens. Thus when in the seventeenth century the distinction between the legislative and executive “powers” was more clearly formulated in the context of the battle between King and Parliament, it was as subdivisions of the basic judicial function of government that these two “powers” were seen. Even in 1655 Sir Henry Vane still saw the legislative and executive powers as elements of the “supreme judicature or visible sovereignty.”¹⁹

      The impulse for the emergence of a “legislative power” was given by the development of the command theory of law, the view that law is essentially the expression of an order or prohibition rather than an unchanging pattern of custom, a view that was reinforced by the emergence of the modern notion of sovereignty as the repository of the power to issue final commands. The basis for the idea of a division of functions existed in medieval thought, for the idea of function played an important part in the papal theory of the division of labour among the offices of the Church,²⁰ and the foundation for a twofold division of government function was to be found in the division of royal power into gubernaculum and juridictio, the powers of government and jurisdiction.²¹ In the exercise of the former the King was unrestrained, but in the latter he had to abide by the law. The problem of the exact articulation of these aspects of the royal power, and the desire to limit the monarch by subjecting him to a law which he did not himself make, provided the basis for the evolution of a “legislative power” independent of the will of the King. As a corollary, there emerged the idea of an executive power in the King, by virtue of which he ensured that the law was put into effect. The doctrine of popular sovereignty, which finds its roots deep in the medieval period, provided the stimulus for the progressive clarification of the idea of a legislative function, the function of delineating that law by which the ruler will be bound. The enunciation of the doctrine of sovereignty by Bodin sharpened the image of the power which was being contended. Reacting against the medieval view of the King as essentially a judge interpreting an unchanging law, a view which was still dominant in France in the sixteenth century, among lawyers at any rate,²² Bodin asserted that the monarch had the authority to give new laws to his people, and that this was the first and chief mark of sovereignty.²³ Thus the stage was set for a seventeenth-century contest for the control of the “legislative power.”

      The work of Marsilius of Padua in the fourteenth century shows clearly this connection between the emergence of the concept of the legislative and executive functions and the ending of the medieval approach to the nature of law. A little earlier, Aquinas had used the distinction, taken from Aristotle and Cicero, between the ruler’s functions of laying down the law and of administering the political community,²⁴ but Marsilius went much further by placing the legislative power clearly in the people, and by rejecting the view that positive law must conform to a higher law. The legislative power thus becomes a genuine power to make laws, laws which are seen as the commands of the law-making authority. “The primary and proper efficient cause of the law,” said Marsilius, “is the people … commanding or determining that something be done or omitted with regard to human civil acts, under a temporal pain or punishment.”²⁵ This power to command meant that, by authority of the people, the laws must “undergo addition, subtraction, complete change, interpretation or suspension, in so far as the exigencies of time or place or other circumstances make any such action opportune for the common benefit.”²⁶ This essentially modern view of law led Marsilius to make a distinction between the legislator and the ruler, but a distinction which was still cast in a medieval mould. For Marsilius still saw the over-all function of government as judicial, the settlement of disputes,²⁷ but he distinguished the “parts” of the State in a way that was quite different from that of earlier writers. Marsilius in fact provided a transition, from the classification of the parts of the State by a mere echoing of Aristotle, to a classification of government functions which forms the basis of modern thought, and which remained essentially intact until the time of Montesquieu.²⁸

      Initially Marsilius restated Aristotle’s “parts of the State”—the agricultural, the artisan, the military, the financial, the priestly, and the judicial or deliberative, and emphasized the distinction between the priestly, the warrior, and the judicial parts and the others, the former being parts of the State “in the strict sense.”²⁹ But then, having clarified his view of law and the role of the people as the effective legislative body, Marsilius switched to a classification of government functions, although one still related to Aristotle’s analysis of political science in the Ethics.³⁰ “The primary efficient cause [which establishes and determines the other parts or offices of the State] is the legislator; the secondary, as it were the instrumental or executive cause, we say is the ruler through the authority granted to him for this purpose by the legislator.” The execution of legal provisions is effected more conveniently by the ruler than by the entire multitude of citizens, said Marsilius, “since in this function one or a few rulers suffice.”³¹ Marsilius had a clear distinction of functions in mind, and he placed them in distinct hands, but his concern was with the division of labour on grounds of efficiency, not with an attempt to limit the power of government by setting up internal divisions; he was not, therefore, directly concerned with the “separation of powers” as we have defined it.³²

      An essential point about the use of the term executive by Marsilius, and its use by most writers until the end of the seventeenth century, is that Marsilius meant by this essentially what we should describe as the judicial function, the function of the courts headed by the ruler, which put the law into effect. He did not distinguish between the judicial and the executive functions, and indeed the idea of a separate executive function is a relatively modern notion, not being fully developed until the end of the eighteenth century. Marsilius saw the legislative and “executive” functions as branches of the over-all judicial function. This usage becomes extremely important in the seventeenth century, when the idea emerged of placing distinct functions in separate hands for the purpose of limiting the government. Although, as we shall see, the roots of the idea of a judicial “power” distinct from the executive go a long way back into seventeenth-century England, nevertheless the dominant view of the division of government functions remained a twofold division into “legislative” and “executive.” The modern notion of an executive power distinct from the machinery of law enforcement through the courts, could hardly be envisaged in an age when almost the only impact of government upon the ordinary citizen was through the courts and the law-enforcement officers. The “executive power” meant, then, either the function of administering justice under the law, or the machinery by which the law was put into effect. Bishop John Poynet, in 1554, expressed this conception very clearly in his Short Treatise of Politicke Power. Writing of the authority to make laws and of the power of the magistrates to execute them, he commented that “lawes without execution, be no more profitable, than belles without clappers.” James Harrington in 1656 defined the “executive order” as that part of the science of government which is styled “of the frame, and course of courts or judicatories,”³³ and Algernon Sidney, writing as late as 1680, defined the executive function in terms which we should today consider purely