Page images
PDF
EPUB

1

nicipal 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 cafes 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 preferved : for since many accidents may happen, wherein a strict and rigid observation of the laws inay 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 somtimes within the reach of the law, which makes no distinction of persons, by an action that

may deferve 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.

$. 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 fince in some governments the law

making

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 necesfities 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.

S. 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 fcrupulous or nice in the point; they are far from examining prerogative, whilft 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.

$. 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

2 3

being as the fathers of them, watching over them for their good, the government was almost all prerogative. A few established laws ferved 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.

§. 163. And therefore they have a very wrong notion of government, who say, that the people have incroached 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 incroachment upon any body, since no body in 5

go

1

a

government can have a right tending to any other end : and those only are incroachments 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 fource 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 fo void of reason, and brutish, as to enter into fociety 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 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 feveral things, of their own free choice, where

the

a

Z 4

the law was filent, and sometimes too against the direct letter of the law, for the public good; and their acquiescing in it when fo 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; fo 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.

$. 165. And therefore he that will look into the history of England, will find, that prerogative was always largest in the hands of our wifest 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 inen, 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

ز

[ocr errors]
« PreviousContinue »