Sect. 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.
159. Where the legislative and executive power are in distinct hands (as they are in all limited monarchies and well-framed governments), the good of the society requires that several things be left to the discretion of the one who has the executive power. For the legislators cannot foresee, and provide by laws for, everything that may be useful to the community. So the executor of the laws, having the power in his hands, has a right by the common law of nature to use it for the good of the society. He has this right in many cases where the municipal law has given no direction, until the legislative can conveniently be assembled to provide for it. There are many things the law can by no means provide for. Those must necessarily be left to the discretion of the one who has the executive power in his hands, to be ordered by him as the public good and advantage require. Indeed, it is fit that the laws themselves should in some cases give way to the executive power. Or rather, they should give way to this fundamental law of nature and government: that, as much as possible, all the members of the society are to be preserved. For many accidents may happen in which a strict and rigid observance of the laws may do harm. Strictly keeping the law might mean not pulling down an innocent man's house to stop a fire, when the house next to it is burning. And a man may sometimes come within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon. So it is fit that the ruler should have a power, in many cases, to soften the severity of the law and pardon some offenders. For the end of government is the preservation of all, as much as possible. So even the guilty are to be spared, where this can do no harm to the innocent.
Sect. 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.
160. This power is called prerogative. It lets the executive act at its discretion for the public good. Sometimes it allows action without the law, even against it. In some governments the lawmaking power is not always present. It is often too large and too slow to act with the speed required for execution. It is also impossible to foresee every accident or emergency that may affect the public. Law cannot provide for every such case. Nor can lawmakers always draft laws that will do no harm when enforced rigidly. A law may be harmful if applied inflexibly to every case or person. Therefore some latitude is left to the executive. This allows the executive to choose actions the laws do not prescribe.
Sect. 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.
161. This power is an unquestioned prerogative when used for the community's benefit. It must also align with the government's trust and purposes. The people are rarely concerned about it. They do not examine prerogative so long as it is used in a tolerable way for its intended purpose. That purpose is the people's good, and not something clearly against them. If a dispute arises between the executive power and the people about something claimed as a prerogative, the answer is simple. Ask whether exercising that prerogative tends to help or harm the people.
Sect. 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.
162. It is easy to imagine the early stages of government. When commonwealths were little different from families in population, they also had few laws. Governors acted like fathers who watched over their people for their good. The government was therefore almost entirely prerogative. A few established laws were enough, and the ruler’s judgment and care supplied the rest. But when error or flattery led weak princes to use this power for their own private ends and not for the public good, the people had to limit prerogative by explicit laws. They did this where they suffered harm from it. Thus the people found it necessary to declare clear limits on prerogative in cases their ancestors had left, without restriction, to the wisdom of princes who used that power rightly, that is, for the good of their people.
Sect. 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.
163. People have a false idea of government when they say the people have encroached on the prerogative. They mean this happens when parts of it are defined by positive laws. In doing that, the people do not take from the prince anything that rightly belonged to him. They only declare that the power they left indefinite in his or his ancestors' hands, meant to be used for their good, was not intended to be used otherwise. The purpose of government is the good of the community. Any change that furthers that purpose cannot be an encroachment on anyone. No one in government has a right to pursue any other end. Only actions that harm or hinder the public good are true encroachments. Those who argue otherwise speak as if the prince had an interest separate from the community's good. They treat him as if he were not created for the people. This belief is the root of most evils and disorders in monarchies. If that were true, the people under his rule would not be a society of rational beings joining for mutual benefit. They would not be people who set rulers over themselves to protect and promote that benefit. Instead, they would be like a herd of inferior creatures under a master who keeps and uses them for his own pleasure or profit. If people were so devoid of reason and so brutish as to enter society on those terms, then prerogative might indeed be what some claim. It would be an arbitrary power to harm the people.
Sect. 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.
164. A rational person, when free, will not place themselves under another's control to their own harm. If they find a good and wise ruler, they may not think it necessary or useful to set strict limits on his power in every matter. Prerogative is therefore only the people allowing their rulers, by free choice, to do certain things when the law is silent. Sometimes this also means acting contrary to the literal words of the law for the public good, and the people accepting it when done. A good prince, mindful of the trust placed in him and careful for his people's welfare, cannot have too much prerogative. That is, he cannot have too much power to do good. But a weak or bad prince who claims as his right the powers his predecessors used without legal direction, and who exercises those powers at will to promote interests separate from the public's, gives the people cause to assert their rights and to limit that power. They had been willing to tacitly allow it while it served their benefit.
Sect. 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.
165. And so anyone who looks into the history of England will find that prerogative was always largest in the hands of our wisest and best princes. The people saw that the whole tendency of their actions was the public good. So they did not contest what was done without law to that end. Or if some human frailty or mistake appeared in small departures from that end (for princes are only men, made like others), it was still plain that the main part of their conduct aimed at nothing but care of the public. So the people found reason to be satisfied with these princes. Whenever they acted without the letter of the law, or against it, the people went along with what they did. Without the least complaint, they let them enlarge their prerogative as they pleased. And they judged rightly that the princes did nothing in this to the prejudice of their laws, since they acted in keeping with the foundation and end of all laws, the public good.
Sect. 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.
166. Such god-like princes did indeed have some title to arbitrary power by that argument which would prove absolute monarchy the best government, as being the way God himself governs the universe. For such kings share in his wisdom and goodness. On this is founded the saying that the reigns of good princes have always been most dangerous to the liberties of their people. For their successors, managing the government with different thoughts, would draw the actions of those good rulers into precedent. They would make them the standard of their prerogative. They acted as if what had been done only for the good of the people gave them a right to do it for the harm of the people, if they so pleased. This has often caused contest, and sometimes public disorders, before the people could recover their original right. They had to get it declared that this was not prerogative, as truly it never was. For it is impossible that anybody in the society should ever have a right to do the people harm. Yet it is very possible, and reasonable, that the people should not try to set any bounds to the prerogative of those kings or rulers who did not themselves go beyond the bounds of the public good. For prerogative is nothing but the power of doing public good without a rule.
Sect. 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.
167. The power to call parliaments in England, regarding their exact time, place, and length, is clearly a royal prerogative. But it is entrusted to the king to use for the nation's good. He must call parliaments according to the needs of the times and varying occasions. It is impossible to know in advance which place will always be most suitable for their meetings. It is also impossible to foresee the best season. Therefore the choice of these was left to the executive power. This allowed the king to act in the public interest and to better achieve the purposes of parliaments.
Sect. 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 one 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.
168. People often ask, in matters of prerogative, who will judge whether the power is used rightly? I answer: if an active executive has such a prerogative and the legislature depends on his will to be convened, then there is no judge on earth. The same is true between the legislature and the people when either the executive or the legislature, after seizing power, seeks to enslave or destroy them. The people have no other remedy in such cases than to appeal to heaven. Rulers who attempt this exercise power the people never gave them. The people cannot be supposed to consent to being ruled for their harm. Therefore the rulers act without right. When the whole people, or any individual, are deprived of their rights or are subject to power exercised without right, and have no earthly appeal, they are free to appeal to heaven whenever they judge the matter serious enough. Therefore, though the people cannot be the final judges within the society's constitution, they still retain by a law prior to and above all human laws the ultimate right to decide in cases where there is no appeal on earth. This right belongs to all mankind. They may judge whether they have just cause to make their appeal to heaven. They cannot give up this judgment. No one can so submit himself to another as to give that person the liberty to destroy him. God and nature do not allow a man to abandon himself or neglect his own preservation. Since a man cannot lawfully take his own life, he cannot give another the power to take it. Do not think this creates a permanent excuse for disorder. This right only operates when the harm is so great that the majority feel it, become weary of it, and find it necessary to have it corrected. Executive power or wise rulers need not fall into this danger. Above all others, they have most need to avoid it because it is the most perilous outcome.