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