Herein, perhaps, the danger is lest we exaggerate Locke's dependence upon the earlier current of thought. The social contract is at least as old as when Glaucon debated with Socrates in the market-place at Athens. The theory of a state of nature, with the rights therein implied, is the contribution, through Stoicism, of the Roman lawyers, and the great medieval contrast to Aristotle's experimentalism. To the latter, also, may be traced the separation of powers; and it was then but little more than a hundred years since Bodin had been taken to make the doctrine an integral part of scientific politics. Nor is the theory of a right to revolution in any sense his specific creation. So soon as the Reformation had given a new perspective to the problem of Church and State every element of Locke's doctrine had become a commonplace of debate. Goodman and Knox among Presbyterians, Suarez and Mariana among Catholics, the author of the Vindiciæ and Francis Hotman among the Huguenots, had all of them emphasized the concept of public power as a trust; with, of course, the necessary corollary that its abuse entails resistance. Algernon Sydney was at least his acquaintance; and he must have been acquainted with the tradition, even if tragedy spared him the details, of the Discourses on Government. Even his theory of toleration had in every detail been anticipated by one or other of a hundred controversialists; and his argument can hardly claim either the lofty eloquence of Jeremy Taylor or the cogent simplicity of William Penn.
What differentiates Locke from all his predecessors is the manner of his writing on the one hand, and the fact of the Revolution on the other. Every previous thinker save Sydney—the latter's work was not published until 1689—was writing with the Church hardly less in mind than the purely political problems of the State; even the secular Hobbes had devoted much thought and space to that "kingdom of darkness" which is Rome. And, Sydney apart, the resistance they had justified was always resistance to a religious tyrant; and Cartwright was as careful to exclude political oppression from the grounds of revolution as Locke was to insist upon it as the fundamental excuse. Locke is, in fact, the first of English thinkers the basis of whose argument is mainly secular. Not, indeed, that he can wholly escape the trammels of ecclesiasticism; not until the sceptical intelligence of Hume was such freedom possible. But it is clear enough that Locke was shifting to very different ground from that which arrested the attention of his predecessors. He is attempting, that is to say, a separation between Church and State not merely in that Scoto-Jesuit sense which aimed at ecclesiastical independence, but in order to assert the pre-eminence of the State as such. The central problem is with him political, and all other questions are subsidiary to it. Therein we have a sense, less clear in any previous writer save Machiavelli, of the real result of the decay of medieval ideals. Church and State have become transposed in their significance. The way, as a consequence, lies open to new dogmas.
The historical research of the nineteenth century has long since made an end of the social contract as an explanation of state-origins; and with it, of necessity, has gone the conception of natural rights as anterior to organized society. The problem, as we now know, is far more complex than the older thinkers imagined. Yet Locke's insistence on consent and natural rights has received new meaning from each critical period of history since he wrote. The theory of consent is vital because without the provision of channels for its administrative expression, men tend to become the creatures of a power ignorant at once and careless of their will. Active consent on the part of the mass of men emphasizes the contingent nature of all power and is essential to the full realization of freedom; and the purpose of the State, in any sense save the mere satisfaction of material appetite, remains, without it, unfulfilled. The concept of natural right is most closely related to this position. For so long as we regard rights as no more than the creatures of law, there is at no point adequate safeguard against their usurpation. A merely legal theory of the State can never, therefore, exhaust the problems of political philosophy.
No thinker has seen this fact more clearly than Locke; and if his effort to make rights something more than interests under juridical protection can not be accepted in the form he made it, the underlying purpose remains. A State, that is to say, which aims at giving to men the full capacity their trained initiative would permit is compelled to regard certain things as beyond the action of an ordinary legislature. What Stammler calls a "natural law with changing content"[4]—a content which changes with our increasing power to satisfy demand—is essential if the state is to live the life of law. For here was the head and centre of Locke's enquiry. "What he was really concerned about," said T.H. Green, "was to dispute 'the right divine of kings to govern wrong.'" The method, as he conceived, by which this could be accomplished was the limitation of power. This he effected by two distinct methods, the one external, the other internal, in character.
[4] Cf. my Authority in the Modern State, p. 64., and the references there cited.
The external method has, at bottom, two sides. It is, in the first place, achieved by a narrow definition of the purpose of the state. To Locke the State is little more than a negative institution, a kind of gigantic limited liability company; and if we are inclined to cavil at such restraint, we may perhaps remember that even to neo-Hegelians like Green and Bosanquet this negative sense is rarely absent, in the interest of individual exertion. But for Locke the real guarantee of right lies in another direction. What his whole work amounts to in substance—it is a significant anticipation of Rousseau—is a denial that sovereignty can exist anywhere save in the community as a whole. A common political superior there doubtless must be; but government is an organ to which omnipotence is wanting. So far as there is a sovereign at all in Locke's book, it is the will of that majority which Rousseau tried to disguise under the name of the general will; but obviously the conception lacks precision enough to give the notion of sovereignty the means of operation. The denial is natural enough to a man who had seen, under three sovereigns, the evils of unlimited power; and if there is lacking to his doctrine the well-rounded logic of Hobbes' proof that an unlimited sovereign is unavoidable, it is well to remember that the shift of opinion is, in our own time, more and more in the direction of Locke's attitude. That omnicompetence of Parliament which Bentham and Austin crystallized into the retort to Locke admits, in later hands, of exactly the amelioration he had in mind; and its ethical inadequacy becomes the more obvious the more closely it is studied.[5]
[5] Cf. my Problem of Sovereignty, Chap. I.
The internal limitation Locke suggested is of more doubtful value. Government, he says, in substance, is a trustee and trustees abuse their power; let us therefore divide it as to parts and persons that the temptation to usurp may be diminished. There is a long history to this doctrine in its more obvious form, and it is a lamentable history. It tied men down to a tyrannous classification which had no root in the material it was supposed to distinguish. Montesquieu took it for the root of liberty; Blackstone, who should have known better, repeated the pious phrases of the Frenchman; and they went in company to America to persuade Madison and the Supreme Court of the United States that only the separation of powers can prevent the approach of tyranny. The facts do not bear out such assumption. The division of powers means in the event not less than their confusion. None can differentiate between the judge's declaration of law and his making of it.[6] Every government department is compelled to legislate, and, often enough, to undertake judicial functions. The American history of the separation of powers has most largely been an attempt to bridge them; and all that has been gained is to drive the best talent, save on rare occasion, from its public life. In France the separation of powers meant, until recent times, the excessive subordination of the judiciary to the cabinet. Nor must we forget, as Locke should have remembered, the plain lesson of the Cromwellian constitutional experiments. That the dispersion of power is one of the great needs of the modern State at no point justifies the rigid categories into which Locke sought its division.[7]
[6] Cf. Mr. Justice Holmes' remarks in Jensen v. Southern Pacific, 244 U.S. 221.
[7] Cf. my Authority in the Modern State, pp. 70 f.
Nor must we belittle the criticism, in its clearest form the work of Fitz James Stephen,[8] that has been levelled at Locke's theory of toleration. For the larger part of the modern world, his argument is acceptable enough; and its ingenious compromises have made it especially representative of the English temper. Yet much of it hardly meets the argument that some of his opponents, as Proast for example, had made. His conception of the visible church as no part of the essence of religion could win no assent from even a moderate Anglican; and, once the visible church is admitted, Locke's facile distinction between Church and State falls to the ground. Nor can it be doubted that he underestimated the power of coercion to produce assent; the policy of Louis XIV to the Huguenots may have been brutal, but its efficacy must be unquestionable. And it is at least doubtful whether his theory has any validity for a man who held, as Roman Catholics of his generation were bound to hold, that the communication of his particular brand of truth outweighed in value all other questions. "Every Church," he wrote, "is orthodox to itself; to others, erroneous or heretical"; but to any earnest believer this would approximate to blasphemy. Nor could any serious Christian accept the view that "under the gospel '...there is no such thing as a Christian commonwealth'"; to Catholics and Presbyterians this must have appeared the merest travesty of their faith.