Where  the  person,  so  intrusted  with  the  executive  power,  is  left,  by  the  legisla-
tive, to  act  m  any  instance,  at  his  own  discretion,  to  direct  by  his  own  under-
Standing,  the  public  force  which  is  naturally  under  the  direction  of  the  public
understanding,  such  a  discretionary  power  m  him  is  called  prerogative.  Thus,
in  penal  cases,  if  the  legislative  forbid  the  public  force  to  be  put  in  motion  for
the  punishment  of  any  action  till  the  fact  itself  is  proved  to  the  public  under-
standing in  such  a  manner  as  the  law  appoints,  and  these  will  not  suffer  this
force  to  be  used  but  under  the  conduct  of  the  law,  so  as  to  Inflict  only  the  legal
penalty ;  thus  far  there  is  no  prerogative  or  discretionary  power  in  him  who
is  intrusted  with  the  executive.  But  if  the  legislative,  instead  of  reserving  to
itself  the  right  of  judging  whether  such  legal  punishment  is  to  be  suspended,
or  whether  the  criminal  is  to  be  wholly  pardoned,  leaves  it  to  him  to  pardon
or  not  as  he  thinks  proper,  such  a  discretionary  power  Intrusted  with  liim  is
called  prerogative."  (InstiUvtes,  B.  2j  ch.  3,  §8.)  But  this  kind  of  prerogative
power  in  the  individual,  is  prerogative  only  in  administration,  not  in  source
or  origin.  His  discretion  in  such  case.  Is  derived  from  a  higher  authority,
which  is  prerogative  over  him,  and  he  is  exercising  the  authority  of  another
power,  not  his  own.  But  the  king  has  original  prerogative  power,  not  only
prerogative  in  administration,  but  prerogative  in  source.  There  are  now
many  limitations  upon  the  king's  prerogative,  by  acts  of  parliament,  which
involve  the  king's  assent.  But  in  the  absence  of  such  limitation*  his  preroga-
tive is  absolute ;  that  is  there  is  no  higher  authority  on  earth  to  restrain  or
prohibit  the  exercise  thereof.
