in him that does so, is a state of war with the people, who have a right
to reinstate their legislative in the exercise of their power: for
having erected a legislative, with an intent they should exercise the
power of making laws, either at certain set times, or when there is need
of it, when they are hindered by any force from what is so necessary to
the society, and wherein the safety and preservation of the people
consists, the people have a right to remove it by force.
In all states
and conditions, the true remedy of force without authority, is to oppose
force to it. The use of force without authority, always puts him that
uses it into a state of war, as the aggressor, and renders him liable to
be treated accordingly.
Sect. 156. The power of assembling and dismissing the legislative,
placed in the executive, gives not the executive a superiority over it,
but is a fiduciary trust placed in him, for the safety of the people, in
a case where the uncertainty and variableness of human affairs could not
bear a steady fixed rule: for it not being possible, that the first
framers of the government should, by any foresight, be so much masters
of future events, as to be able to prefix so just periods of return and
duration to the assemblies of the legislative, in all times to come,
that might exactly answer all the exigencies of the commonwealth; the
best remedy could be found for this defect, was to trust this to the
prudence of one who was always to be present, and whose business it was
to watch over the public good. Constant frequent meetings of the
legislative, and long continuations of their assemblies, without
necessary occasion, could not but be burdensome to the people, and must
necessarily in time produce more dangerous inconveniencies, and yet the
quick turn of affairs might be sometimes such as to need their present
help: any delay of their convening might endanger the public; and
sometimes too their business might be so great, that the limited time of
their sitting might be too short for their work, and rob the public of
that benefit which could be had only from their mature deliberation.
What then could be done in this case to prevent the community from being
exposed some time or other to eminent hazard, on one side or the other,
by fixed intervals and periods, set to the meeting and acting of the
legislative, but to intrust it to the prudence of some, who being
present, and acquainted with the state of public affairs, might make use
of this prerogative for the public good? and where else could this be so
well placed as in his hands, who was intrusted with the execution of the
laws for the same end? Thus supposing the regulation of times for the
assembling and sitting of the legislative, not settled by the original
constitution, it naturally fell into the hands of the executive, not as
an arbitrary power depending on his good pleasure, but with this trust
always to have it exercised only for the public weal, as the occurrences
of times and change of affairs might require. Whether settled periods of
their convening, or a liberty left to the prince for convoking the
legislative, or perhaps a mixture of both, hath the least inconvenience
attending it, it is not my business here to inquire, but only to shew,
that though the executive power may have the prerogative of convoking
and dissolving such conventions of the legislative, yet it is not
thereby superior to it.
Sect. 157. Things of this world are in so constant a flux, that nothing
remains long in the same state. Thus people, riches, trade, power,
change their stations, flourishing mighty cities come to ruin, and prove
in times neglected desolate corners, whilst other unfrequented places
grow into populous countries, filled with wealth and inhabitants. But
things not always changing equally, and private interest often keeping
up customs and privileges, when the reasons of them are ceased, it often
comes to pass, that in governments, where part of the legislative
consists of representatives chosen by the people, that in tract of time
this representation becomes very unequal and disproportionate to the
reasons it was at first established upon. To what gross absurdities the
following of custom, when reason has left it, may lead, we may be
satisfied, when we see the bare name of a town, of which there remains
not so much as the ruins, where scarce so much housing as a sheepcote,
or more inhabitants than a shepherd is to be found, sends as many
representatives to the grand assembly of law-makers, as a whole county
numerous in people, and powerful in riches. This strangers stand amazed
at, and every one must confess needs a remedy; tho' most think it hard
to find one, because the constitution of the legislative being the
original and supreme act of the society, antecedent to all positive laws
in it, and depending wholly on the people, no inferior power can alter
it. And therefore the people, when the legislative is once constituted,
having, in such a government as we have been speaking of, no power to
act as long as the government stands; this inconvenience is thought
incapable of a remedy.
Sect. 158. Salus populi suprema lex, is certainly so just and
fundamental a rule, that he, who sincerely follows it, cannot
dangerously err. If therefore the executive, who has the power of
convoking the legislative, observing rather the true proportion, than
fashion of representation, regulates, not by old custom, but true
reason, the number of members, in all places that have a right to be
distinctly represented, which no part of the people however incorporated
can pretend to, but in proportion to the assistance which it affords to
the public, it cannot be judged to have set up a new legislative, but to
have restored the old and true one, and to have rectified the disorders
which succession of time had insensibly, as well as inevitably
introduced: For it being the interest as well as intention of the
people, to have a fair and equal representative; whoever brings it
nearest to that, is an undoubted friend to, and establisher of the
government, and cannot miss the consent and approbation of the
community; prerogative being nothing but a power, in the hands of the
prince, to provide for the public good, in such cases, which depending
upon unforeseen and uncertain occurrences, certain and unalterable laws
could not safely direct; whatsoever shall be done manifestly for the
good of the people, and the establishing the government upon its true
foundations, is, and always will be, just prerogative, The power of
erecting new corporations, and therewith new representatives, carries
with it a supposition, that in time the measures of representation might
vary, and those places have a just right to be represented which before
had none; and by the same reason, those cease to have a right, and be
too inconsiderable for such a privilege, which before had it. 'Tis not a
change from the present state, which perhaps corruption or decay has
introduced, that makes an inroad upon the government, but the tendency
of it to injure or oppress the people, and to set up one part or party,
with a distinction from, and an unequal subjection of the rest.
Whatsoever cannot but be acknowledged to be of advantage to the society,
and people in general, upon just and lasting measures, will always, when
done, justify itself; and whenever the people shall chuse their
representatives upon just and undeniably equal measures, suitable to the
original frame of the government, it cannot be doubted to be the will
and act of the society, whoever permitted or caused them so to do.
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.
CHAPTER. XV.
OF PATERNAL, POLITICAL, AND DESPOTICAL POWER, CONSIDERED
TOGETHER.
Sect. 169. THOUGH I have had occasion to speak of these separately
before, yet the great mistakes of late about government, having, as I
suppose, arisen from confounding these distinct powers one with another,
it may not, perhaps, be amiss to consider them here together.
Sect. 170. First, then, Paternal or parental power is nothing but that
which parents have over their children, to govern them for the
children's good, till they come to the use of reason, or a state of
knowledge, wherein they may be supposed capable to understand that rule,
whether it be the law of nature, or the municipal law of their country,
they are to govern themselves by: capable, I say, to know it, as well as
several others, who live as freemen under that law. The affection and
tenderness which God hath planted in the breast of parents towards their
children, makes it evident, that this is not intended to be a severe
arbitrary government, but only for the help, instruction, and
preservation of their offspring. But happen it as it will, there is, as
I have proved, no reason why it should be thought to extend to life and
death, at any time, over their children, more than over any body else;
neither can there be any pretence why this parental power should keep
the child, when grown to a man, in subjection to the will of his
parents, any farther than having received life and education from his
parents, obliges him to respect, honour, gratitude, assistance and
support, all his life, to both father and mother. And thus, 'tis true,
the paternal is a natural government, but not at all extending itself to
the ends and jurisdictions of that which is political.
The power of the
father doth not reach at all to the property of the child, which is only
in his own disposing.
Sect. 171. Secondly, Political power is that power, which every man
having in the state of nature, has given up into the hands of the
society, and therein to the governors, whom the society hath set over
itself, with this express or tacit trust, that it shall be employed for
their good, and the preservation of their property: now this power,
which every man has in the state of nature, and which he parts with to
the society in all such cases where the society can secure him, is to
use such means, for the preserving of his own property, as he thinks
good, and nature allows him; and to punish the breach of the law of
nature in others, so as (according to the best of his reason) may most
conduce to the preservation of himself, and the rest of mankind. So that
the end and measure of this power, when in every man's hands in the
state of nature, being the preservation of all of his society, that is,
all mankind in general, it can have no other end or measure, when in the
hands of the magistrate, but to preserve the members of that society in
their lives, liberties, and possessions; and so cannot be an absolute,
arbitrary power over their lives and fortunes, which are as much as
possible to be preserved; but a power to make laws, and annex such
penalties to them, as may tend to the preservation of the whole, by
cutting off those parts, and those only, which are so corrupt, that they
threaten the sound and healthy, without which no severity is lawful. And
this power has its original only from compact and agreement, and the
mutual consent of those who make up the community.
Sect. 172. Thirdly, Despotical power is an absolute, arbitra