Chapter XIV
                            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.