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.
Sec. 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.
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