Of Prerogative.

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; nay 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 publick good and advantage shall require; nay, 'tis 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 Mans 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, since 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.

160. This Power to act according to discretion for the publick good, without the prescription of the Law, and sometimes even against it, is that which is called Prerogative; for since in fome Governments the Law-making 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 publick, or 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.

161. This Power whilst imployed 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, or questioning of Prerogative, whilst it is in any tolerable degree imploy'd for the use it was meant, that is, 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.

162. It is easy to conceive, that in the Infancy of Governments, when Commonwealths differed little from Families in number of People, they differ'd from them too, but little in number of Laws: and the Governours being as the Fathers of them, watching over them for their good, the Government was almost all Prerogative. A few establish'd Laws served the turn, and the discretion and care of the Ruler supply'd 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 publick good, the people were fain by express Laws, to get Prerogative determin'd in those points wherein they found disadvantage from it: And declared limitations of Prerogative in those 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.

163. And therefore they have a very wrong notion of Government, who say, that the People have incroach'd 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 belong'd to him, but only declared, that that Power which they indefinitely left in him, or his Ancestors hands, to be exercised for their good, was not a thing 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 incroachment upon any body; since no body, in Government, can have a right tending to any other end. And those only are incroachments which prejudice or hinder the publick 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, such as have set Rulers over themselves, to guard and promote that good; but are to be looked on as an Herd of inferiour 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.

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 a 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 Peoples 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 publick 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 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 publick, 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.

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 publick good, or if any humane frailty or mistake (for Princes are but Men, made as others) appear'd in some small declinations from that end; yet 'twas visible, the main of their Conduct tended to nothing but the care of the publick. 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 publick good.

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 publick 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 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 publick good. For Prerogative is nothing but the Power of doing publick good, without a Rule.

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 Occasion 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 best subservient to the publick good, and best suit the ends of Parliaments.

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? I 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, are deprived of their Right, or are under the Exercise of a power without right, having no Appeal on earth, they have a liberty to appeal to Heaven, when-ever 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 Superiour power, to determine and give effective Sentence in the case; yet they have reserv'd that ultimate Determination to themselves, which belongs to all Mankind, where there lies no Appeal on Earth; by a Law antecedent, and paramount to all positive Laws of Men, 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 Inconvenience is so great, that the Majority feel it, and are weary of it, and find a necessity to have it amended. And this the Executive Power, or wise Princes never need come in the danger of. And 'tis the thing, of all others, they have most need to avoid, as, of all others, the most perilous.