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Article 2, Section 1, Clause 1



Document 1

John Locke, Second Treatise, §§ 144--48, 155--68

1689

144. But because the Laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual Execution, or an attendance thereunto: Therefore 'tis necessary there should be a Power always in being, which should see to the Execution of the Laws that are made, and remain in force. And thus the Legislative and Executive Power come often to be separated.

145. There is another Power in every Commonwealth, which one may call natural, because it is that which answers to the Power every Man naturally had before he entered into Society. For though in a Commonwealth the Members of it are distinct Persons still in reference to one another, and as such are governed by the Laws of the Society; yet in reference to the rest of Mankind, they make one Body, which is, as every Member of it before was, still in the State of Nature with the rest of Mankind. Hence it is, that the Controversies that happen between any Man of the Society with those that are out of it, are managed by the publick; and an injury done to a Member of their Body, engages the whole in the reparation of it. So that under this Consideration, the whole Community is one Body in the State of Nature, in respect of all other States or Persons out of its Community.

146. This therefore contains the Power of War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without the Commonwealth, and may be called Federative, if any one pleases. So the thing be understood, I am indifferent as to the name.

147. These two Powers, Executive and Federative, though they be really distinct in themselves, yet one comprehending the Execution of the Municipal Laws of the Society within its self, upon all that are parts of it; the other the management of the security and interest of the publick without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative Power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than the Executive; and so must necessarily be left to the Prudence and Wisdom of those whose hands it is in, to be managed for the publick good. For the Laws that concern Subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to Foreigners, depending much upon their actions, and the variation of designs and interests, must be left in great part to the Prudence of those who have this Power committed to them, to be managed by the best of their Skill, for the advantage of the Commonwealth.

148. Though, as I said, the Executive and Federative Power of every Community be really distinct in themselves, yet they are hardly to be separated, and placed, at the same time, in the hands of distinct Persons. For both of them requiring the force of the Society for their exercise, it is almost impracticable to place the Force of the Commonwealth in distinct, and not subordinate hands; or that the Executive and Federative Power should be placed in Persons that might act separately, whereby the Force of the Publick would be under different Commands: which would be apt sometime or other to cause disorder and ruine.

. . . . .

155. It may be demanded here, What if the Executive Power being possessed of the Force of the Commonwealth, shall make use of that force to hinder the meeting and acting of the Legislative, when the Original Constitution, or the publick Exigencies require it? I say using Force upon the People without Authority, and contrary to the Trust put 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 hindr'd by any force from, what is so necessary to the Society, and wherein in 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.

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 humane 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 publick good. Constant frequent meetings of the Legislative, and long Continuations of their Assemblies, without necessary occasion, could not but be burthensome to the People, and must necessarily in time produce more dangerous inconveniences, 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 publick; 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 publick 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 sometime or other to eminent hazard, on one side, or the other, by fixed intervals and periods, set to the prudence of some, who being present, and acquainted with the state of publick affairs, might make use of this Prerogative for the publick 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 publick 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, 'tis 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.

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 ruine, and prove in time neglected desolate Corners, whilst other unfrequented places grow into populous Countries, fill'd with Wealth and Inhabitants. But things not always changing equally, and private interest often keeping up Customs and Priviledges, 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 establish'd 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 ruines, where scarce so much Housing as a Sheep-coat; 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. Though most think it hard to find one, because the Constitution of the Legislative being the original and supream act of the Society, antecedent to all positive Laws in it, and depending wholly on the People, no inferiour 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.

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 publick, it cannot be judg'd, 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 publick 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 Priviledge, 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 the Society, and People in general, upon just and lasting measures, will always, when done, justifie it self; 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.

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 publick good and advantage shall require: nay, 'tis 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.

160. This Power to act according to discretion, for the publick 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 publick; 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.

161. This power whilst imployed 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 imploy'd 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 the Question.

162. It is easie to conceive, that in the Infancy of Governments, when Commonwealths differed little from Families in number of People, they differ'd from them too but little in number of Laws: And the Governours, being as the Fathers of them, watching over them for their good, the Government was almost all Prerogative. A few establish'd Laws served the turn, and the discretion and care of the Ruler supply'd 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 publick good, the People were fain by express Laws to get Prerogative determin'd, 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 incroach'd 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 belong'd 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 Government can have a right tending to any other end. And those only are incroachments which prejudice or hinder the publick 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 Government. And indeed if that be so, the People under his Government are not a Society of Rational Creatures entred 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 inferiour 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 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 Peoples 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 publick 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 publick, 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 publick good, contested not what was done without Law to that end; or if any humane frailty or mistake (for Princes are but Men, made as others) appear'd in some small declinations from that end; yet 'twas visible, the main of their Conduct tended to nothing but the care of the publick. 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 publick 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 publick 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 publick good. For Prerogative is nothing but the Power of doing publick 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 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 publick good, and best suit the ends of Parliaments.

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 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, there they have a liberty to appeal to Heaven, whenever they judge the Cause of sufficient moment. And therefore, tho' the People cannot be Judge, so as to have by the Constitution of that Society any Superiour 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, reserv'd 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 Inconvenience 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 'tis the thing of all others, they have most need to avoid, as of all others the most perilous.


The Founders' Constitution
Volume 3, Article 2, Section 1, Clause 1, Document 1
http://press-pubs.uchicago.edu/founders/documents/a2_1_1s1.html
The University of Chicago Press

Locke, John. Two Treatises of Government. Edited by Peter Laslett. New York: Mentor Books, New American Library, 1965. See also: Montuori

Easy to print version.


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