| CHAPTER. XIV. |
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| Of Prerogative. |
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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