Separation of Powers
CHAPTER 10|Document 4
John Trenchard, A Short Historie of Standing Armies in England1698Gwyn 138--41
There is nothing in which the generality of Mankind are so much mistaken as when they talk of Government. The different Effects of it are obvious to every one, but few can trace its Causes. Most Men having indigested Ideas of the Nature of it, attribute all publick Miscarriages to the Corruption of Mankind. They think the whole Mass is infected, that it's impossible to make any Reformation, and so submit patiently to their Country's Calamities, or else share in the Spoil: whereas Complaints of this kind are as old as the World, and every Age has thought their own the worst. We have not only our own Experience, but the Example of all times, to prove that Men in the same Circumstances will do the same things, call them by what Names of distinction you please. A Government is a mere piece of Clockwork; and having such Springs and Wheels, must act after such a manner: and there the Art is to constitute it so that it must move to the publick Advantage. It is certain that every Man will act for his own Interest; and all wise Governments are founded upon that Principle: So that this whole Mystery is only to make the Interest of the Governors and Governed the same. In an absolute Monarchy, where the whole Power is in one Man, his Interest will be only regarded: In an Aristocracy the Interest of a few; and in a free Government the Interest of every one. This would be the Case of England if some Abuses that have lately crept into our Constitution were remov'd. The Freedom of this Kingdom depends upon the Peoples chusing the House of Commons, who are a part of the Legislature, and have the sole Power of giving Mony. Were this a true Representative, and free from external Force or private Bribery, nothing could pass there but what they thought was for the publick Advantage. For their own Interest is so interwoven with the Peoples, that if they act for themselves (which every one of them will do as near as he can) they must act for the common Interest of England. And if a few among them should find it their Interest to abuse their Power, it will be the Interest of all the rest to punish them for it: and then our Government would act mechanically, and a Rogue will as naturally be hang'd as a Clock strike twelve when the hour is come. This is the Fountain-Head from whence the People expect all their Happiness, and the Redress of their Grievances; and if we can preserve them free from Corruption, they will take care to keep every body else so. Our Constitution seems to have provided for it, by never suffering the King (till Charles the Second's Reign) to have a mercenary Army to frighten them into a Compliance, nor Places or Revenues great enough to bribe them into it. The Places in the King's Gift were but few, and most of them Patent Places for Life, and the rest great Offices of State enjoy'd by single Persons, which seldom fell to the Share of the Commons, such as the Lord Chancellor, Lord Treasurer, Privy-Seal, Lord High Admiral, Exc. and when these Offices were possess'd by the Lords, the Commons were severe Inquisitors into their Actions. Thus the Government of England continu'd from the time that the Romans quitted the Island, to the time of Charles the First, who was the first I have read of that made an Opposition to himself in the House of Commons the road to Perferment; of which the Earl of Stafford and Noy were the most remarkable Instances, who from great Patriots became the chief Assertors of despotick Power. But this serv'd only to exasperate the rest; for he had not Places enough for all that expected them, nor Mony enough to bribe them. 'Tis true, he rais'd great Sums of Mony upon the People; but it being without Authority of Parliament, and having no Army to back him, it met with such Difficulties in the raising, that it did him little good, and ended at last in his Ruin, tho by the means of a long and miserable War, which brought us from one Tyranny to another; for the Army had got all things into their Power, and govern'd the Nation by a Council of War, which made all Parties join in calling in Charles the Second: So that he came in with the general applause of the People, who in a kind fit gave him a vast Revenue for Life. By this he was enabl'd to raise an Army, and bribe the Parliament, which he did to the purpose: but being a luxurious Prince, he could not part with great Sums at once. He only fed them from Hand to Mouth: So that they found it as necessary to keep him in a constant Dependance upon them, as they had upon him. They knew he would give them ready Mony no longer than he had absolute Necessity for them, and he had not Places enough in his Disposal to secure a Majority in the House: for in those early days the Art was not found out of splitting and multiplying Places; as instead of a Lord Treasurer to have five Lords of the Treasury; instead of a Lord Admiral to have seven Lords of the Admiralty; to have seven Commissioners of the Customs, nine of the Excize, fourteen of the Navy Office, ten of the Stamp Office, eight of the Prize Office, sixteen of the Commissioners of Trade, two of the Post Office, four of the Transports, four for Hackny Coaches, four for Wine-Licences, four for the Victualling Office, and Multitudes of other Offices which are endless to enumerate. I believe the Gentlemen who have the good Fortune to be in some of these Imployments, will think I complement them, if I should say they have not been better executed since they were in so many Hands, than when in fewer: and I must confess, I see no reason why they may not be made twice as many, and so ad infinitum, (unless the number be ascertain'd by Parliament) and what Danger this may be to our Constitution, I think of with Horror. For if in Ages to come they should be all given to Parliament Men, what will become of our so much boasted Liberty? What shall be done when the Criminal becomes the Judg, and the Malefactors are left to try themselves? We may be sure their common Danger will unite them, and they will all stand by one another. I do not speak this by guess; for I have read of a Country where there was a constant series of Mismanagement for many Years together, and yet no Body was punish'd: and even in our own Country I believe, some Men now alive can remember the time, when if the King had but twenty more Places in his Disposal, or dispos'd of those he had to the best Advantage, the Liberty of England had been at an end. I would not be understood quite to exclude Parliament-men from having Places; for a Man may serve his Country in two Capacities: but I would not have it to be a Qualification for a Place; because a poor Borough thinks a Man fit to represent them, that therefore he must be a Statesman, a Lawyer, a Soldier, an Admiral, and what not? If this Method should be taken in a future Reign, the People must not expect to see Men of Ability or Integrity in any Places, while they hold them by no other Tenure than the Disservice they do their Country in the House of Commons, and are sure to be turn'd out upon every prevalent Faction on the other side. They must then never expect to see the House of Commons act vigorously for the Interest either of King or People; but some will servilely comply with the Court to keep their Places, others will oppose it as unreasonably to get them: and those Gentlemen whose Designs are for their Countries Interest, will grow weary of the best Form of Government in the World, thinking by mistake the Fault is in our Constitution. I have heard of a Country, where the Disputes about Offices to the value of thirty thousand Pounds per annum, have made six Millions ineffectual; what by some Mens prostitute Compliance, and others openly clogging the Wheels, it has caus'd Want and Necessity in all kinds of Men, Bribery, Treachery, Profaneness, Atheism, Prodigality, Luxury and all the Vices that attend a remiss and corrupt Administration, and a universal Neglect of the Publick. It is natural to run from one extreme to another; and this Policy will at last turn upon any Court that uses it: for if they should be resolv'd to give all Offices to Parliament-men, the People will think themselves under a Necessity to obtain a Law that they shall give none, which has been more than once attempted in our own time. Indeed, tho there may be no great inconvenience to suffering a few Men that have Places to be in that House, such as come in naturally, without any indirect means, yet it will be fatal to us to have many: for all wise Governments endeavour as much as possible to keep the Legislative and Executive Parts asunder, that they may be a check upon one another. Our Government trusts the King with no part of the Legislative but a Negative Voice, which is absolutely necessary to preserve the Executive. One part of the Duty of the House of Commons is to punish Offenders, and redress the Grievances occasion'd by the Executive Part of the Government; and how can that be done if they should happen to be the same Persons, unless they would be publick-spirited enough to hang or drown themselves?
But in my Opinion, in another thing of no less Importance, we deviated in Charles the Second's time from our Constitution: for tho we were in a Capacity of punishing Offenders, yet we did not know legally who they were. The Law has been always very tender of the Person of the King, and therefore has dispos'd the Executive Part of the Government in such proper Channels, that whatsoever lesser Excesses are committed, they are not imputed to him, but his Ministers are accountable for them: his great Seal is kept by his Chancellor, his Revenue by his Treasurer, his Laws are executed by his Judges, his Fleet is manag'd by his Lord High Admiral, who are all accountable for their Misbehaviour. Formerly all Matters of State and Discretion was debated and resolv'd in the Privy Council, where every Man subscrib'd his Opinion, and was answerable for it. The late King Charles was the first who broke this most excellent part of our Constitution, by settling a Cabal or Cabinet Council, where all Matters of Consequence were debated and resolv'd, and then brought to the Privy Council to be confirm'd. The first footsteps we have of this Council in any European Government were in Charles the Ninth's time of France, when resolving to massacre the Protestants, he durst not trust his Council with it, but chose a few Men who he call'd his Cabinet Council: and considering what a Genealogy it had, 'tis no wonder it has been so fatal both to King and People. To the King: for whereas our Constitution has provided Ministers in the several parts of the Government to answer for Miscarriages, and to skreen him from the hatred of the People; this on the contrary protects the Ministers, and exposes the King to all the Complaints of his Subjects. And 'tis as dangerous to the People: for whatever Miscarriages there are, no body can be punish'd for them; for they justify themselves by a Sign Manual, or perhaps a private Direction from the King: and then we have run it so far, that we can't follow it. The Consequence of this must be continual Heartburnings between King and People: and no one can see the Event.
Gwyn, W. B. The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution. Tulane Studies in Political Science, vol. 9. New Orleans: Tulane University, 1965.
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