Constitutionalism and the Separation of Powers

EIGHT The Rise and Fallof Parliamentary Government

Constn_201-250.indd 233 9/10/07 12:47:25 AM EIGHT The Rise and Fall of Parliamentary Government E H A v E s E E N that in the constitutional thought of America and France up to the mid nineteenth century the separation of powers provided the only real alternative to some variant of the balanced constitution as a basis for a system of limited government. The only other possibilities were autocracy or a system of unchecked legislative domination. In Britain, however , the situation was rather different. In spite of the enthusiasm of certain radicals for French and American models, the pure separation of powers was not, after the experiment of the Protectorate, a serious alternative to some form of a balanced constitution. It was a distant threat, but no more than that. Its major role was as a secondary hypothesis in the dominant constitutional theory. We find, in fact, that at the end of the eighteenth century the old theory of balanced government merged almost imperceptibly into a new theory of balance. The theory of mixed government gave way to the theory of parliamentary government, but the essential belief in the necessity of balance in a system of limited government remained. This new theory drew upon both of the older constitutional theories, re2 33 Constn_201-250.indd 234 9/10/07 12:47:25 AM CONSTITUTIONALISM AND THE SEPARATION OF POWERS formulating the old concepts of checks and balances and refashioning the functional analysis of the separation of powers to suit the new balance. The central theme of this new theory was that of "harmony"; to "ensure harmony, in place of collision, between the various powers of the state," as Lord Durham wrote in 1838/ was the aim of writers on politics in the first half of the nineteenth century, and Durham's formulation was echoed and re-echoed in the literature of the time. The old view of government as an equilibrium between conflicting forces was now outdated, the relic of an antiquated view of class government. The checks and balances of the constitution remained, but now they were to be applied as a means of achieving a balance between government and parliament in a system dominated by the elected representatives of the middle class. The separation of powers was still an important element in attaining this balance, as it had been under the system of mixed government, but its functional and personal elements were necessarily modified to suit the new conditions. Indeed this process of reformulation often took the form of an attack upon extreme versions of the separation of powers, and, therefore, upon French and American precedents . Taken to extremes, as in the case of Bagehot, this was represented as a complete rejection of the doctrine, but for the most part the theorists of parliamentary government had a more subtle and complex view of the part its precepts played in English constitutional theory. The result was a theory of government that seemed at last to have solved the problems of unity and control which had perplexed political writers for centuries, combining all the desirable qualities of limited and balanced government with all the requirements of harmony and co-operation between the parts of the State that modern conditions demanded. Indeed the theory of parliamentary government so dazzled observers that it has remained to this day the ideal of foreign constitutionalists, long after it has ceased to operate in its home country. Yet this system was in fact based upon a set of political conditions of such delicacy, and of such a unique quality, that it required relatively little change in the party system to put an end to it in Britain, and it is doubtful if it has ever been successfully copied elsewhere. I. The Report and Despatches of the Earl of Durham, London, I839, p. 204. 234 Constn_201-250.indd 235 9/10/07 12:47:25 AM RISE AND FALL OF PARLIAMENTARY GOVERNMENT In The English Constitution Walter Bagehot laid claim to a twofold originality. Two obsolete doctrines had hitherto dominated English constitutional thought, he wrote; these were the theory of mixed government and the theory of the separation of powers. He defined the latter as the belief that in England the legislative, executive, and judicial powers are "quite divided-that each is entrusted to a separate person or set of personsthat no one of these can at all interfere...