M.J.C. Vile wrote:
[In England] the great political issue of this period was, of course, the use of “influence” in politics, the bribery of electors and the corruption of members of the House of Commons in order to gain a majority favorable to the Ministry. This system of influence can be seen as the first of the links between the executive and legislative branches that formed the basis of the newly developing pattern of cabinet government. In an age when party allegiance alone was not a reliable means of ensuring the support of members of parliament for government policies, the system of influence provided a useful alternative. At the same time corruption can be seen as a means of subverting the balance of the constitution, of uniting powers that should be divided, and reducing to subordination in practice a branch of the government which in theory was co-ordinate in power. The eighteenth century was, therefore, both the age of the emergence of cabinet government, and the age of place-bills, proposed in an attempt to maintain the division between parliament and the executive. The success of the British Constitution can perhaps be attributed to the fact that in the end those who wanted to control the Commons and those who wished the Commons to be free of office-holders were both partially successful.
The greatest opponent of the system of corruption was Henry St. John, Viscount Bolingbroke, who for many years defended his concept of the balanced constitution 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 …
… The appearance of Montesquieu’s great work [De l'Esprit des Loix/The Spirit of the Laws, 1748] 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: “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. 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 …
… Montesquieu started from a rather gloomy view of human nature, in which he saw man as exhibiting a general tendency towards evil, a tendency that manifests itself in selfishness, pride, envy, and the seeking after power. Man, though a reasoning animal, is led by his desires into immoderate acts. Of the English, Montesquieu wrote that “A people like this, being always in ferment, are more easily conducted by their passions than by reason, which never produced any great effect in the mind of man”. In the realm of politics this is of the greatest consequence: “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go”. However, this tendency towards the abuse of power can be moderated by the constitution of the government and by the laws, for, although by no means a starry-eyed utopian, Montesquieu, like the Greeks, believed that the nature of the State's constitution is of the greatest consequence. Thus Montesquieu commenced his work with a description of the three different types of government, their nature and their principles, for if he could establish these, then the laws would “flow thence as from their source”.
Let us look at the way in which Montesquieu dealt with this problem of the control of power. He defined three types of government: republican, monarchical, and despotic.
In the first the people is possessed of the supreme power; in a monarchy a single person governs by fixed and established laws; in a despotic government a single person directs everything by his own will and caprice. Republican government can be subdivided into aristocracy and democracy, the former being a State in which the supreme power is in the hands of a part of the people, not, as in a democracy, in the body of the people. In a despotic government there can be no check to the power of the prince, no limitations to safeguard the individual — the idea of the separation of powers in any form is foreign to despotic governments. In an aristocracy also, though it be a moderate government, the legislative and executive authority are in the same hands. However, in a democracy, Montesquieu argued, the corruption of the government sets in when the people attempt to govern directly and try “to debate for the senate, to execute for the magistrate, and to decide for the judges”.
Montesquieu implied, then, that some form of separation of powers is necessary to a democracy, but he did not develop this point. The relevance of this to modern states is in any case rather slight, as Montesquieu believed that democracy was only suitable to small societies. The most extended treatment he gives of institutional checks to power, therefore, is to be found in his discussion of monarchy and of the English Constitution. These two discussions, though obviously connected in spirit, seem to be drawn from quite different sources, and to depend upon different principles. Each system is praised for its virtues, but it is difficult to say that Montesquieu clearly favored one above the other …
… Having shown that all the elements of the pure doctrine of the separation of powers are to be found, If not always clearly worked out, in Montesquieu’s thought, can we simply label him as a protagonist of the pure doctrine? Clearly not, for he went further, and added to these ideas the further dimension of a theory of checks and balances between the legislative and executive powers, drawn largely from the theory of mixed government. He did not rely upon a concept of negative checks to the exercise of power, checks dependent upon the mere existence of potentially antagonistic agencies, charged with different functions of government — again he went further, and advocated positive checks by placing powers of control over the other branches in the hands of each of them …
The relationships between the executive and legislative branches, however, exhibit clearly the characteristics of the idea of checks and balances that we saw in the English theory of the balanced constitution. The executive officer ought to have a share in the legislative power by a veto over legislation. but he ought not to have the power to enter positively into the making of legislation. The executive should have the power of calling and fixing the duration of meetings of the legislative body. In this way the executive branch will be able to prevent the encroachments of the legislature on its authority, thus ensuring that the legislature will not become despotic. The legislature should not, however, have the right to stay (arreter) the executive, but it should have the power to examine the manner in which its laws have been executed. Whatever the results of this examination, the legislature should not be able to judge the person, or the conduct of the person, who executes the law.
However, the counsellors upon whose advice unwise policies are adopted may be punished, and for this purpose the power of impeachment must lie in the legislature, with the Lower House accusing, and the Upper House judging: “Here, then, is the fundamental constitution of the government we are treating of. 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, though he had great faith in the power of constitutions to mould the public character of a State, was nevertheless sufficiently aware of sociological necessity to see the importance of having the essential parts of the State as representative of different interests in society, and so he adapted the theory of mixed government to the underpinning of a system of divided powers, in order that the varying “passions and interests” of the different classes of society should ensure that no one man or group of men gained arbitrary power …
… Thus Montesquieu clearly did see a broad separation of functions among distinct agencies of government, with a separation of personnel, to which was added the need for a set of positive checks to the exercise of power by each of the two major, permanent, agencies of government to prevent them from abusing the power entrusted to them. The ideas of independence and interdependence which Bolingbroke developed are useful here for the understanding of this system. Without a high degree of independent power in the hands of each branch they cannot be said to be interdependent, for this requires that neither shall be subordinate to the other. At the same time a degree of interdependence does not destroy the essential independence of the branches.
Montesquieu was aware of the problem of ensuring that a system of government so nicely balanced should not result in complete deadlock, that the three bodies, King, Lords, and Commons, by being poised In opposition to each other should not produce merely a state of “repose or inaction”. But he dismissed the problem by arguing that in the nature of things they are forced to move (par Ie mouvement nécessaire des choses), and forced to move in concert. The question of whether he saw the State as an organic unity in which the articulated parts formed a single unit exercising the sovereIgn power, or whether he destroyed the unity of sovereignty by dividing it up into parts which were to be distributed among quite distinct, autonomous bodies, related to each other in a mechanistic fashion only, is probably impossible to answer, because it is doubtful if he ever formulated the problem in either of these ways …
… What then did Montesquieu add to seventeenth- and early-eighteenth century English thought on the separatIon of powers? Clearly his view of the functions of government was much closer to modern usage than his predecessors — he was one of the first writers to use “executive” in a recognizably modern sense in juxtaposition with the legislative and judicial functions. His emphasis upon the judicial function and upon the equality of this function with the other functions of government, though (as we have seen) by no means altogether new, was nevertheless of great importance. The judiciary had a position of independence in his thought greater than that of earlier English writers, and greater than it was in practice at that time in England. Although he used the idea of mixed government he did not allow it to dominate his thought, as had the writers on the balanced constitution In England, consequently he articulated the elements of the constitution in a different way, and a clearer view of the separation of legislative and executive branches was now possible. He had gone a long way, in fact, towards the transformation of the theory of mixed government from its position as a doctrine in its own right into a set of checks and balances in a system of agencies separated on a functional basis.
Perhaps the most significant difference between Bolingbroke and Montesquieu is that the latter placed the King outside the legislature. In some ways, then, Montesquieu moved back towards the emphasis that was placed during the Protectorate upon separate and distinct powers; he was certainly closer to the pure doctrine than his English contemporaries, but he did not go all the way. He had a more realistic, more articulated system, wIth an amalgam of seventeenth- and eighteenth-century ideas woven into a new fabric. Sometimes it is difficult to know whether the changes he introduced into the stream of political thought on constitutionalism were wholly intentional or whether they resulted rather from his method of writing. We shall never know — but it does not matter. The very defects of his style gave him an influence which a more precIse and less interesting thinker would never have achieved, but more important than this is the fact that by changing the emphasis that English writers of the preceding half century had placed upon legislative supremacy and the mixed constitution, he paved the way for the doctrine of the separation of powers to emerge again as an autonomous theory of government. This theory was to develop in very different ways in Britain, in America, and on the continent of Europe, but from this time on, the doctrine of the separation of powers was no longer an English theory, it had become a universal criterion of a constitutional government.
The Source:
M.J.C. Vile, Constitutionalism and the Separation of Powers, originally published in 1967 by Oxford University Press (Liberty Fund 1998) [pp. 79-80, 85, 102, 103, 104, 105-106]
Further Reading:
For an appreciative but critical appraisal of Montesquieu’s conceptualization of separation of powers, and the limitations of Vile’s interpretation, see: Jeremy Waldron*, ‘Separation of Powers and the Rule of Law’, in his Political Political Theory: Essays on Institutions, Harvard 2016
*Social Science Files subscriber