eign 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]

[Footnote 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]

[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 th