History of Western Philosophy - Bertrand Russell [363]
The legislative, he says, must be supreme, except that it must be removable by the community. It is implied that, like the English House of Commons, the legislative is to be elected from time to time by popular vote. The condition that the legislative is to be removable by the people, if taken seriously, condemns the part allowed by the British Constitution in Locke's day to King and Lords as part of the legislative power.
In all well-framed governments, Locke says, the legislative and executive are separate. The question therefore arises: what is to be done when they conflict? If the executive fails to summon the legislative at the proper times, we are told, the executive is at war with the people, and may be removed by force. This is obviously a view suggested by what happened under Charles I. From 1628 to 1640 he tried to govern without Parliament; this sort of thing, Locke feels, must be prevented, by civil war if necessary.
'Force,' he says, 'is to be opposed to nothing but unjust and unlawful force.' This principle is useless in practice unless there exists some body with the legal right to pronounce when force is 'unjust and unlawful'. Charles I's attempt to collect ship-money without the consent of Parliament was declared by his opponents to be 'unjust and unlawful', and by him to be just and lawful. Only the military issue of the Civil War proved that his interpretation of the Constitution was the wrong one. The same thing happened in the American Civil War. Had States the right to secede? No one knew, and only the victory of the North decided the legal question. The belief, which one finds in Locke and in most writers of his time, that any honest man can know what is just and lawful, is one that does not allow for the strength of party bias on both sides, or for the difficulty of establishing a tribunal, whether outwardly or in men's consciences, that shall be capable of pronouncing authoritatively on vexed questions. In practice, such questions, if sufficiently important, are decided simply by power, not by justice and law.
To some degree, though in veiled language, Locke recognizes this fact. In a dispute between legislative and executive, he says there is, in certain cases, no judge under Heaven. Since Heaven does not make explicit pronouncements, this means, in effect, that a decision can only be reached by fighting, since it is assumed that Heaven will give the victory to the better cause. Some such view is essential to any doctrine that divides governmental power. Where such a doctrine is embodied in the Constitution, the only way to avoid occasional civil war is to practise compromise and common sense. But compromise and common sense are habits of mind, and cannot be embodied in a written constitution.
It is surprising that Locke says nothing about the judiciary, although this was a burning question in his day. Until the Revolution, judges could at any moment be dismissed by the king; consequently they condemned his enemies and acquitted his friends. After the Revolution, they were made irremovable except by an Address from both Houses of Parliament. It was thought that this would cause their decisions to be guided by the law; in fact, in cases involving party spirit, it has merely substituted the judge's prejudice for the king's. However that may be, wherever the principle of checks and balances prevailed the judiciary became a third independent branch of government alongside of the legislative and executive. The most noteworthy example is the United States' Supreme Court.
The history of the doctrine of checks and balances has been interesting.
In England, the country of its origin, it was intended to limit the power of the king, who, until the Revolution, had complete control of the executive. Gradually, however, the executive became dependent upon Parliament, since it was impossible for a ministry to carry on without a majority in the House of Commons. The executive thus became, in effect, a committee chosen in fact, though not in form, by Parliament, with the result that legislative