CHAP. XIV.

Of PREROGATIVE.

Sec. 159. WHERE the legislative and executive power are in
distinct hands, (as they are in all moderated monarchies, and
well-framed governments) there the good of the society requires,
that several things should be left to the discretion of him that
has the executive power: for the legislators not being able to
foresee, and provide by laws, for all that may be useful to the
community, the executor of the laws having the power in his
hands, has by the common law of nature a right to make use of it
for the good of the society, in many cases, where the municipal
law has given no direction, till the legislative can conveniently
be assembled to provide for it. Many things there are, which the
law can by no means provide for; and those must necessarily be
left to the discretion of him that has the executive power in his
hands, to be ordered by him as the public good and advantage
shall require: nay, it is fit that the laws themselves should in
some cases give way to the executive power, or rather to this
fundamental law of nature and government, viz. That as much as
may be, all the members of the society are to be preserved: for
since many accidents may happen, wherein a strict and rigid
observation of the laws may do harm; (as not to pull down an
innocent man's house to stop the fire, when the next to it is
burning) and a man may come sometimes within the reach of the
law, which makes no distinction of persons, by an action that may
deserve reward and pardon; 'tis fit the ruler should have a
power, in many cases, to mitigate the severity of the law, and
pardon some offenders: for the end of government being the
preservation of all, as much as may be, even the guilty are to be
spared, where it can prove no prejudice to the innocent.
Sec. 160. This power to act according to discretion, for
the public good, without the prescription of the law, and
sometimes even against it, is that which is called prerogative:
for since in some governments the lawmaking power is not always
in being, and is usually too numerous, and so too slow, for the
dispatch requisite to execution; and because also it is
impossible to foresee, and so by laws to provide for, all
accidents and necessities that may concern the public, or to make
such laws as will do no harm, if they are executed with an
inflexible rigour, on all occasions, and upon all persons that
may come in their way; therefore there is a latitude left to the
executive power, to do many things of choice which the laws do
not prescribe.
Sec. 161. This power, whilst employed for the benefit of
the community, and suitably to the trust and ends of the
government, is undoubted prerogative, and never is questioned:
for the people are very seldom or never scrupulous or nice in the
point; they are far from examining prerogative, whilst it is in
any tolerable degree employed for the use it was meant, that is,
for the good of the people, and not manifestly against it: but if
there comes to be a question between the executive power and the
people, about a thing claimed as a prerogative; the tendency of
the exercise of such prerogative to the good or hurt of the
people, will easily decide that question.
Sec. 162. It is easy to conceive, that in the infancy of
governments, when commonwealths differed little from families in
number of people, they differed from them too but little in
number of laws: and the governors, being as the fathers of them,
watching over them for their good, the government was almost all
prerogative. A few established laws served the turn, and the
discretion and care of the ruler supplied the rest. But when
mistake or flattery prevailed with weak princes to make use of
this power for private ends of their own, and not for the public
good, the people were fain by express laws to get prerogative
determined in those points wherein they found disadvantage from
it: and thus declared limitations of prerogative were by the
people found necessary in cases which they and their ancestors
had left, in the utmost latitude, to the wisdom of those princes
who made no other but a right use of it, that is, for the good of
their people.
Sec. 163. And therefore they have a very wrong notion of
government, who say, that the people have encroached upon the
prerogative, when they have got any part of it to be defined by
positive laws: for in so doing they have not pulled from the
prince any thing that of right belonged to him, but only
declared, that that power which they indefinitely left in his or
his ancestors hands, to be exercised for their good, was not a
thing which they intended him when he used it otherwise: for the
end of government being the good of the community, whatsoever
alterations are made in it, tending to that end, cannot be an
encroachment upon any body, since no body in government can have
a right tending to any other end: and those only are
encroachments which prejudice or hinder the public good. Those
who say otherwise, speak as if the prince had a distinct and
separate interest from the good of the community, and was not
made for it; the root and source from which spring almost all
those evils and disorders which happen in kingly governments.
And indeed, if that be so, the people under his government are
not a society of rational creatures, entered into a community for
their mutual good; they are not such as have set rulers over
themselves, to guard, and promote that good; but are to be looked
on as an herd of inferior creatures under the dominion of a
master, who keeps them and works them for his own pleasure or
profit. If men were so void of reason, and brutish, as to enter
into society upon such terms, prerogative might indeed be, what
some men would have it, an arbitrary power to do things hurtful
to the people.
Sec. 164. But since a rational creature cannot be supposed,
when free, to put himself into subjection to another, for his own
harm; (though, where he finds a good and wise ruler, he may not
perhaps think it either necessary or useful to set precise bounds
to his power in all things) prerogative can be nothing but the
people's permitting their rulers to do several things, of their
own free choice, where the law was silent, and sometimes too
against the direct letter of the law, for the public good; and
their acquiescing in it when so done: for as a good prince, who
is mindful of the trust put into his hands, and careful of the
good of his people, cannot have too much prerogative, that is,
power to do good; so a weak and ill prince, who would claim that
power which his predecessors exercised without the direction of
the law, as a prerogative belonging to him by right of his
office, which he may exercise at his pleasure, to make or promote
an interest distinct from that of the public, gives the people an
occasion to claim their right, and limit that power, which,
whilst it was exercised for their good, they were content should
be tacitly allowed.
Sec. 165. And therefore he that will
look into the history of England, will find, that prerogative was
always largest in the hands of our wisest and best princes;
because the people, observing the whole tendency of their actions
to be the public good, contested not what was done without law to
that end: or, if any human frailty or mistake (for princes are
but men, made as others) appeared in some small declinations from
that end; yet 'twas visible, the main of their conduct tended to
nothing but the care of the public. The people therefore,
finding reason to be satisfied with these princes, whenever they
acted without, or contrary to the letter of the law, acquiesced
in what they did, and, without the least complaint, let them
inlarge their prerogative as they pleased, judging rightly, that
they did nothing herein to the prejudice of their laws, since
they acted conformable to the foundation and end of all laws, the
public good.
Sec. 166. Such god-like princes indeed had some title to
arbitrary power by that argument, that would prove absolute
monarchy the best government, as that which God himself governs
the universe by; because such kings partake of his wisdom and
goodness. Upon this is founded that saying, That the reigns of
good princes have been always most dangerous to the liberties of
their people: for when their successors, managing the government
with different thoughts, would draw the actions of those good
rulers into precedent, and make them the standard of their
prerogative, as if what had been done only for the good of the
people was a right in them to do, for the harm of the people, if
they so pleased; it has often occasioned contest, and sometimes
public disorders, before the people could recover their original
right, and get that to be declared not to be prerogative, which
truly was never so; since it is impossible that any body in the
society should ever have a right to do the people harm; though it
be very possible, and reasonable, that the people should not go
about to set any bounds to the prerogative of those kings, or
rulers, who themselves transgressed not the bounds of the public
good: for prerogative is nothing but the power of doing public
good without a rule.
Sec. 167. The power of calling parliaments in England, as
to precise time, place, and duration, is certainly a prerogative
of the king, but still with this trust, that it shall be made use
of for the good of the nation, as the exigencies of the times,
and variety of occasions, shall require: for it being impossible
to foresee which should always be the fittest place for them to
assemble in, and what the best season; the choice of these was
left with the executive power, as might be most subservient to
the public good, and best suit the ends of parliaments.
Sec. 168. The old question will be asked in this matter of
prerogative, But who shall be judge when this power is made a
right use of ? 1 answer: between an executive power in being,
with such a prerogative, and a legislative that depends upon his
will for their convening, there can be no judge on earth; as
there can be none between the legislative and the people, should
either the executive, or the legislative, when they have got the
power in their hands, design, or go about to enslave or destroy
them. The people have no other remedy in this, as in all other
cases where they have no judge on earth, but to appeal to heaven:
for the rulers, in such attempts, exercising a power the people
never put into their hands, (who can never be supposed to consent
that any body should rule over them for their harm) do that which
they have not a right to do. And where the body of the people,
or any single man, is deprived of their right, or is under the
exercise of a power without right, and have no appeal on earth,
then they have a liberty to appeal to heaven, whenever they judge
the cause of sufficient moment. And therefore, though the people
cannot be judge, so as to have, by the constitution of that
society, any superior power, to determine and give effective
sentence in the case; yet they have, by a law antecedent and
paramount to all positive laws of men, reserved that ultimate
determination to themselves which belongs to all mankind, where
there lies no appeal on earth, viz. to judge, whether they have
just cause to make their appeal to heaven. And this judgment
they cannot part with, it being out of a man's power so to submit
himself to another, as to give him a liberty to destroy him; God
and nature never allowing a man so to abandon himself, as to
neglect his own preservation: and since he cannot take away his
own life, neither can he give another power to take it. Nor let
any one think, this lays a perpetual foundation for disorder; for
this operates not, till the inconveniency is so great, that the
majority feel it, and are weary of it, and find a necessity to
have it amended. But this the executive power, or wise princes,
never need come in the danger of: and it is the thing, of all
others, they have most need to avoid, as of all others the most
perilous.