Even though the legislature is the most important power of a government, it does not necessarily need to be in session continuously. Those with the legislative power should not also exercise executive power because they may exempt themselves from following the laws or try to make the laws suit themselves. Those that make the laws need to be subject to them. A separate executive power is the best way to make sure that when the laws are written, they will be enforced fairly.
Besides the legislative and executive powers, Locke sees a third power, the federative, as significant for a political society. Federative power deals with the community as a whole, in relation to beings outside the community (i.e., foreign governments). It is involved with war and peace, alliances and treaties, and all other relationships between the commonwealth and other governments.
Even though executive and federative powers are different from each other, they are usually united in one body. Federative power, however, is based more on the discretion and prudence of those invested with it rather than the adherence to the established, standing laws of the commonwealth. This is because dealing with foreigners is much more difficult and variable than dealing with one’s own commonwealth. Locke believes that it is best for the executive and federative powers to be combined because they both use the force of the public for their exercise and if they were separate, it would lead to uncertainty and chaos.
In Chapter XIII, Locke turns to a discussion of the three powers- legislative, executive, and federative- and outlines their relationship with each other. The legislature is always the supreme power of the commonwealth, but as the people created it to make laws for the common good, the people may alter it when it does not act according to that end. Self-preservation being the most important natural right men have, it is only fitting that they can rid of those who threaten that sacred and unalterable right. The community itself is thus the supreme power, although only when the government needs to be dissolved, not when it is still under it.
The legislature is also supreme because supremacy must reside in the body that makes the laws men follow. Sometimes there is a government which has a legislature that is not always in session and an executive that is only one individual; in this case this individual can be deemed the supreme power not because he has law-making power (which he does) but because he is the executor of the law and the legislature is not in session. The executive power is definitely subordinate to the legislative power as well as accountable to it, and can be changed at the legislature’s will.
While the legislative power does not need to be continuously in session since laws do not have to be made all the time, the executive does need to be continuously present to enforce the laws. The federative power should also always be present. The legislative power can have predetermined times to convene as set out by the constitution and the people, or they can choose when they want to meet.
If the legislative power consists of individual representatives appointed by the people, there will naturally be a time for new elections to take place. The executive power’s role in these elections could be one of two. If the constitution sets out predetermined times and rules for elections then he merely oversees the process, but if the constitution does not address this situation (or more generally, an amendment or new laws are needed for the community), the executive takes on a more dynamic role of calling for elections or convoking the legislature.
Locke addresses the hypothetical situation of an executive who uses the force of the commonwealth to hinder the convening or the acting of the legislature. If this occurs, the executive has created a state of war between himself and the people. Since this wayward executive is hindering the preservation of the people, they have the right to remove him. Any time a government uses force without authority and creates a state of war, it is liable to be treated accordingly and dissolved.
Now, simply because the executive has the power to convene and dismiss the legislature does not mean that it is superior. The executive was created because the commonwealth did not need to have a fixed, permanent rule by the legislature and because a power was needed that would be ever-present and more flexible. The framers of the government could not accurately predict everything that would fall upon the commonwealth and an executive with his more elastic power was to be preferred to the legislature with its more stolid, inflexible nature. The people would also be burdened by a legislature that had to meet continuously, so the executive’s power also lies in the fact that he can convene a special session if a quick turn of events necessitates the legislature’s immediate return. More generally, if the constitution does not provide for a strict schedule of meeting times for the legislature, the executive is invested with this power of convening it. Thus, while the executive has clear and important powers, it is not actually superior to the legislative power.
Locke notes that things like wealth, power, trade, and population can change in a commonwealth. Sometimes the representatives chosen by the people are out of proportion with the actual amount of inhabitants they represent. Most people may find it difficult to change this situation since the only way it could be done would be to alter the constitution itself, that fundamental and supreme base of the civil society. There is a solution, however, and it is found within the executive power. He may, in the case of a legislature out of line with its true and natural purpose, dissolve it and reconvene it according to its original design. This does not need to be viewed as the creation of a new legislature but as reinstating the old one. The people will approve of this, as the executive is doing what he is supposed to do, acting for the public good in circumstances unpredictable and dangerous.
In chapters XII and XIII, Locke introduces the concept of separation of powers, something that seems quite natural to contemporary readers because of its ubiquity in democracies worldwide. Nevertheless, it was not a universally recognized necessity of government in Locke’s day, as evinced by the absolute monarchs that reigned supreme in the 17th century. The problem with absolute monarchies was that the legislative and executive branches were combined, leading to abuses of power and a ruler whose interests were different from those of his subjects. For Locke, it was crucial that the executive and legislative branches be separate because if the same individual(s) enforced the laws that they wrote, they may consider themselves exempt or have written the laws to their advantage in the first place. American readers of Locke will recognize how his system of separate legislative and executive powers works in reality: Congress makes the laws and the president enforces them, with an effective system of checks and balances to ensure that one branch does not go beyond the scope of its powers.
In the past few chapters, the legislative power and its functions have been outlined. It is responsible for making standing, established laws that are for the public good. It does not need to be in session continuously, and in fact, Locke believes that this would actually be more burdensome than helpful. It would be best if it were comprised of multiple individuals because this would make it less likely to threaten men’s property. While it is supreme because it “literally represents the united force of the commonwealth,” as Peter Laslett wrote, it is still subject to the laws of nature.
The executive power is also bound to the laws of nature and its powers include convening the legislature and calling for elections if the constitution does not detail this process, enforcing and executing the laws, and in most cases, also exercising the federative power (international law). Many readers of Locke are surprised he did not include a judicial power in his treatise. A judicial power mainly interprets the law, but Locke’s legislature and executive exercise this power of interpretation in their writing of laws and their punishments and the method and manner in which they are executed. A separate judicial branch was not deemed necessary.
Locke also believed that different institutions could share the same power; i.e., the King and Parliament had legislative power. While he favored elected representatives for his legislative power, he did not preclude unelected officials from taking part in it as well. It was more important for Locke that the people, or community, retain the supreme power. They consented to be governed and formed the legislature with the understanding that their relinquishing of their natural liberty would be reciprocated by a legislature that acted in accordance with the public good. If the legislature prevents the people from assembling, threatens their property, acts arbitrarily and erratically, gives them to a foreign government, or alters the constitution and fundamental law of the commonwealth, then they are entitled to overthrow the government. Locke takes up dissolution in more detail in subsequent chapters.
Locke also mentions the word “constitution” in this chapter, and modern readers will no doubt have the United States Constitution in mind when they consider its usage. However, Locke did not have a specific structure in mind for constitutions, and, as mentioned, did not have the same views the American Founding Fathers did regarding separation of powers and the different types of powers. Indeed, it is one of the most interesting things to keep in mind while reading Locke- his influence on history was much more than he could have ever anticipated and the outcome of this influence is actually a bit different from what he wrote of in the Second Treatise. Laslett writes, “it is one example of the extraordinary fashion in which the thinking of Locke and the constitutional practice of Englishmen so soon began to coalesce in the minds of a posterity determined to benefit from both. The result was a mingled understanding of the greatest possible historical consequence.” In sum, Locke’s work alluded to the events and circumstances of his day but was more universal and theoretical in scope. Interpretations of it, including those of a markedly liberal bent, led to one of the greatest examples of a people dissolving a government that had drifted so far from its purpose of protecting the natural rights of its subjects that it became tyrannical.