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CHAPTER. XIII.
Of the Subordination of the Powers of the Common-wealth.
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.
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.
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.
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 goo d, 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.
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.
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 not hing 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 pr ince, 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.
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.
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 prerogati ve, 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.
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.
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 ? 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 liber ty 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 senten ce 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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The text digitized by Dave Gowan.
John Locke's "Second Treatise of Government" was published in 1690. The complete unabridged text has been republished several times in edited
commentaries. This is based on the paperback book, "John Locke Second Treatise of Government", Edited, with an Introduction, By C.B. McPherson, Hackett Publishing Company, Indianapolis and Cambridge, 1980. None of the McPherson edition is included in the Etext; only the original words contained in the 1690 Locke text is included. The 1690 edition text is free of copyright.
This text is in the PUBLIC DOMAIN, posted to Wiretap 1 Jul 94.
©Copyright, 2000, Mike Rosenberg
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