Chapter 14
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 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; it is 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 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 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
public, 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 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 or questioning of prerogative whilst it is in any tolerable degree
employed 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 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 suppled 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
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 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 anything 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 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 anybody; since nobody 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, such as have set rulers over themselves, to
guard and promote that good; but are to be looked on as a 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.
§. 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 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 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.
§. 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, or if any human frailty or mistake (for princes are but men,
made as others) appeared in some small declinations from that end, yet it was
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 enlarge their
prerogative as they pleased, judging rightly that they did nothing herein to
the prejudice of their laws, since they acted conformably to the foundation and
end of all laws — the public 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 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 anybody 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."
§. 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 public good and best suit
the ends of parliament.
§. 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 anybody 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 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
reserved 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 judgement 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 it is the thing of all others they have most need to
avoid, as, of all others, the most perilous.