Chapter: CHAPTER. XIV. OF PREROGATIVE.


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
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.

Sect. 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 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 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
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 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 one
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 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, 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.

 In a commonwealth where the legislative and executive powers are separate from each other, the executive power is given several things. Since the legislature cannot be in session continuously and is unable to foresee everything that may befall the commonwealth, the executive is given the ability to make decisions for the good of society according to his discretion if need arises. In addition to making decisions in the absence of the legislature or relevant laws, the executive can also circumvent the laws if he needs to. Locke's example is tearing down a house that is next to a house that is burning, something that would not be allowed in any other circumstances but is done here to prevent the entire city from burning down. This power to use discretion to act for the public good, even when the law does not exist or one has to go against the law, is called prerogative. It is necessary for several reasons: legislatures are not always in session and are sometimes too slow to act; laws cannot foresee everything and accidents may occur; and some laws may do more harm than good. Thus, the executive can exercise his power of prerogative and act outside of the law. The people rarely question this use of prerogative because it is supposed to be used for the public good only. When the commonwealth is new, it may resemble a family with the governor acting as a father. His power is usually his prerogative at this time, and standing laws are few. However, when the governor begins to use this prerogative for his own private ends, the people can require it to be turned into established laws. This cannot be seen as the people encroaching upon a governor's prerogative because that power never actually belonged to the governor by right; it should be seen as the people correcting a governor who was using something they placed in his hands for ill. The governor's interests must be the same as those of his people. It is illogical to assume that men left the state of nature to enter into a commonwealth where the ruler looks upon them as inferior and uses them for his own purposes. Locke offers another description of prerogative, writing that it is nothing more than the people allowing their rulers to do certain things that the law does not account for or even things that go against the laws if they are for the public good. In fact, a good ruler can have a large degree of prerogative without violating the people's natural rights. The history of England provides examples of good princes who retained a large degree of prerogative because their usage of this power was for nothing else but the preservation of the public. Their continual use of prerogative was not dangerous because they judged rightly. Sometimes when wise rulers who exercised a large amount of prerogative were succeeded by new rulers, those new rulers continued the practices of their predecessors but did so in a way that harmed, not helped, their subjects. The people would break into disorder to try to do away with those laws that came from prerogative and never should have been laws in the first place. Since the people should not seek to limit an executive's power of prerogative when they are using it for good, the executive should not transgress the limitations of prerogative to do the people harm. Locke concludes this chapter with two more points about prerogative. The first is that calling the legislature into session is an example of the executive's prerogative, but it should only be done with the public good in mind. The second is an answer to the question that many have: who shall judge whether the power of prerogative is used correctly? Unfortunately, there is no judge on earth and men can only appeal to heaven when the executive and legislative use their power to enslave or destroy their people. God intends for man to preserve himself and he cannot take away his own life or allow another to destroy it. Perpetual disorder on the part of a commonwealth is unwise, but when the majority feels weary of the oppression, they can try to have the power of their government amended. Thus, in extraordinary cases, an attempt to dissolve and reform the government when the legislative and/or executive powers overextend themselves will be judged by God alone. of the three types of power Locke has discussed in the Second Treatise. The first of these is parental power, which is the power parents have over their children to nourish and educate them until they reach a state of maturity and have the knowledge to exercise their own free will. It does not ever extend to their life, and does not extend to their property when they are of age. Children are obligated to honor and respect their parents but are not under their absolute dominion. Parental power is a natural government, but is not political. The second type of power is political power, which is defined as the power men have in the state of nature that is given up to the authority of a commonwealth. This power is only in existence to preserve men's property and punish transgressors of the law. This power is not arbitrary or absolute and only comes into existence with a compact between the ruler and the governed. Consent is necessary for political power. The third type of power is despotical power, defined as absolute and arbitrary power exercised by one man over another. It does not come from nature and cannot be conveyed by a compact. It can only exist by forfeiture, whereby one man puts himself into a state of war with another and is then enslaved. When a tyrant uses force like the beasts of the earth to place others under his dominion, he has created a state of war. Captives taken in a just and lawful war are the only acceptable persons who can be ruled by a despot, and any time a compact is devised between them this enslavement ceases to exist. In summation, parental power is given by nature, political power is bestowed by voluntary agreement, and despotical power is exercised by forfeiture. Parental power falls short of political power and despotical power far exceeds political power. Parental power only manages a child's property while he is not of age, political power preserves men's property, and despotical power does not allow men to have property at all.

