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when reafon has left it, may lead, we may be fatisfied, when we fee the bare name of a town, of which there remains not fo much as the ruins, where fcarce fo much housing as a fheepcote, or more inhabitants than a fhepherd is to be found, fends as many reprefentatives to the grand affembly of lawmakers, as a whole county numerous in people, and powerful in riches. This ftrangers ftand amazed at, and every one must confefs needs a remedy; tho' most think it hard to find one, because the conftitution of the legislative being the original and fupreme act of the fociety, antecedent to all pofitive laws in it, and depending wholly on the people, no inferior power can alter it. And therefore the people, when the legislative is once conftituted, having, in fuch a government as we have been speaking of, no power to act as long as the government ftands; this inconvenience is thought incapable of a remedy.

§. 158. Salus populi fuprema lex, is certainly fo just and fundamental a rule, that he, who fincerely follows it, cannot dangerously err. If therefore the executive, who has the power of convoking the legiflative, obferving rather the true proportion, than fashion of reprefentation, regulates, not by old custom, but true reason, the number of members, in all places that have a right to be distinctly reprefented, which no part of the people how

ever incorporated can pretend to, but in pro portion to the affiftance which it affords to the public, it cannot be judged to have fet up a new legislative, but to have restored the old and true one, and to have rectified the diforders which fucceffion of time had infenfibly, as well as inevitably introduced : For it being the intereft as well as intention of the people, to have a fair and equal reprefentative; whoever brings it nearest to that, is an undoubted friend to, and establisher of the government, and cannot mifs the confent .and approbation of the community; prerogative being nothing but a power, in the hands of the prince, to provide for the public good, in fuch cafes, which depending upon unforefeen and uncertain occurrences, certain and unalterable laws could not fafely direct; whatsoever shall be done manifeftly for the good of the people, and the establishing the government upon its true foundations, is, and always will be, juft prerogative. The power of erecting new corporations, and therewith new reprefentatives, carries with it a fuppofition, that in time the measures of reprefentation might vary, and thofe places have a juft right to be reprefented which before had none; and by the fame reason, those cease to have a right, and be too inconfiderable for such a privilege, which before had it. 'Tis not a change from the prefent ftate, which perhaps corruption or decay has introduced, that makes

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an inroad upon the government, but the tendency of it to injure or opprefs the people, and to fet up one part or party, with a diftinction from, and an unequal subjection of the reft. Whatsoever cannot but be acknowledged to be of advantage to the fociety, and people in general, upon just and lasting meafures, will always, when done, juftify itself; and whenever the people shall chuse their reprefentatives upon juft and undeniably equal measures, fuitable to the original frame of the government, it cannot be doubted to be the will and act of the fociety, whoever permitted or caused them fo to do.

CHA P. XIV.

Of PREROGATIVE.

§. 159. W

HERE the legislative and executive power are in diftinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the fociety requires, that several things fhould be left to the difcretion of him that has the executive power: for the legiflators not being able to forefee, 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 fociety, in many cafes, where the muZ 2 nicipal

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 neceffarily 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 fhall require: nay, it is fit that the laws themselves fhould in fome 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 fociety are to be preferved for fince 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 fomtimes within the reach of the law, which makes no diftinction of perfons, by an action that may deferve reward and pardon; 'tis fit the ruler fhould have a power, in many cafes, to mitigate the severity of the law, and pardon fome offenders: for the end of government being the prefervation of all, as much as may be, even the guilty are to be fpared, where it can prove no prejudice to the innocent.

§. 160. This power to act according to difcretion, for the public good, without the prefcription of the law, and fometimes even against it, is that which is called prerogative: for fince in fome governments the law

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making power is not always in being, and is usually too numerous, and fo too flow, for the dispatch requifite to execution; and becaufe alfo it is impoffible to forefee, and fo by laws to provide for, all accidents and neceffities that may concern the public, or to make fuch laws as will do no harm, if they are executed with an inflexible rigour, on all occafions, and upon all perfons 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, whilft employed for the benefit of the community, and fuitably to the truft and ends of the government, is un→ doubted prerogative, and never is questioned: for the people are very feldom 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 manifeftly 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 exercife of fuch prerogative to the good or hurt of the people, will easily decide that question.

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§. 162. It is eafy 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

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