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]

[Footnote 6:  Cf.  Mr. Justice Holmes’ remarks in Jensen v. Southern Pacific, 244 U.S. 221.]

[Footnote 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.