§. 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; nay, 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; it is fit the ruler should have a power in many cases to
mitigate the severity of the law, and pardon some offenders, since 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.
