Separation of Powers

[Volume 1, Page 314]

CHAPTER 10 | Document 1

Clement Walker, Relations and Observations, Historicall and Politick upon the Parliament Begun Anno Dom. 1640

1648U. Pa. L. Rev. 86:855--56 1938

The King is the only supreme Governour of this Realme of England, to regulate and protect the people by commanding the Laws to be observed and executed; and to this end He (and He alone) beareth not the Sword in vaine; yet the King by himselfe can neither make, repeal, or alter any one law, without the concurrence of both Houses of Parliament, the Legislative power residing in all three, and not in any one. . . . Nor can the King by Himselfe, or joyntly with the Lords and Commons judge what the Law is, this is the office of the sworne Judges of the two Benches and Exchequer, who are the known Expositors, and Dispensers of Law and Justice in all Causes brought before them; yea, they do declare by what Law the King Governs, thereby keeping the King from Governing Arbitrarily and enslaving the people. . . . Now for any one man, or any Assembly, Court, or Corporation of men (be it the two Houses of Parliament) to usurpe these three powers: 1. The Governing power. 2. The Legislative power. 3. And the Judicative power, into themselves, is to make themselves the highest Tyrants, and the people the basest slaves in the world; for to govern supremely by a Law made, and interpreted by themselves according to their own pleasure, what can be more boundlesse and arbitrary?

1. For the Governing power. 1. They coyne, enhaunce, and abate money. 2. They make War and Peace, and continue an extraordinary Militia of an Army upon us. 3. They declare who are Enemies to the Realm. 4. They maintaine forraine negotiacions. 5. They regulate matter of Trade, and exercise other Regalities: whereas all Iura Regalia belong only to the King as Supreme Governour.

2. For the Legislative power. They exclude the King from His Negative voice, and the two Houses obtrude their Ordinances (things so new, that they are not pleadable in any Court of Iustice) as Laws upon the people; laying on Excise, Assessments, and Taxes upon the people: They Vote and declare new Treasons, not known by the statute 25. Edw. 3 nor by any other known Law; yea even to make or receive any addresse to, or from the King; and they account it a Breach of Privilege, if men do not believe it to be Treason, being once declared. They out men of their free-holds, and imprison their Persons, contrary to Magna Charta, by Ordinances of Sequestration, &c.

3. For the Iudicative power. They erect Infinite many of new Iudicatories under them, as their Committees of Complaints, of secret Examinations, of Indempnities; their Country Committees, where businesses are examined, heard, and determined without, nay against Magna Charta, and the known Lawes: nay even in capitall crimes they wave the Courts of Law, and all Legall proceedings by Outlawry, Indictment, or Tryall by Peers, and Bill of Attainder; (which is the only way of Tryall in Parliament: For the Parliament cannot judicially determine any thing, but by Act of Parliament). . . .

The Founders' Constitution
Volume 1, Chapter 10, Document 1
The University of Chicago Press

Radin, Max. "The Doctrine of the Separation of Powers in Seventeenth Century Controversies." University of Pennsylvania Law Review 86 (1938): 842--66.