The Catholick hierarchie: or, The divine right of a sacred dominion in church and conscience truly stated, asserted, and pleaded.

CHAP. II. Of Legislative and Executive Power.

§ 1. DIvine Power is exerted, either in giving being, which is Creation; or disposing of that being, suitable to the ends of Creation, and that is Providence: This latter consists in Preser∣vation or Gubernation of created Beings to their respective ends. The latter of which being a ruling of the Creature by certain Laws, according to the Will of God the Creator, is either Legislative or Executive.

§ 2. A Legislative Power is a Power of making and giving a Law. To compose and draw up a Law is not enough, though with the greatest exactness, and holding proportion with the ends designed; yet here the glorious Wisdom of God is most resplendent: but to give a Law, is to stamp an authoritative obliging Impression upon it, whereby it tyes up the Subject to Du∣ty, and upon his failure unavoidably lays him under guilt.

§ 3. A Legislative Power is either Sovereign and Ʋnlimited, or Sub∣ordinate and Limited. A Sovereign unlimited Legislative Power, is a

Power in making and giving a Law, (pro placito vel arbitrio Legisla∣toris) both for the matter and manner of it. In this there is nothing but Placitum Legislatoris, which gives him any Limitation; he doth whatever he will, in constituting the nature and parts of this Law, and ordaining the Subjects to it, and how far obliged by it: So that here the Legislators Will and Pleasure, is a Law unto himself, and nothing else. Hence it must be supposed that this Lawgiver must have as much Power over the Subject, as it's possible for a Cre∣ator to have over a Creature; else he cannot put him under what Law and Limits of Obligation he pleaseth: And thence it is that this Lawgiver must not be accountable to any other for his doings, he is Supreme to all, Subordinate to none; renders no account of his matters, and therefore most irresistible: So as none can demand an account of him, nor none can oppose him; he hath strength to impose this Law where he sees good. For those Laws are very in∣significant, that have not some kinde of imposing force going along with them, to fasten on the inward man a Conscience of Duty; or on the outward man, by respect to Rewards or Punishments.

§ 4. Hence he must be most wife, to will such a Law as is most suitable to his own nature, and agreeing to that way of Govern∣ment which is determined by himself, as to the created nature of the Subject to be governed: And that it may be so, it is requisite he should be most good; and that not only in himself, but relatively so; i. e. to have the greatest obligation to distribute Bounty and Goodness to his Subjects, of which there can be none greater, than of the Creator to the works of his own hands: Neither must this Distribu∣tion flow from any other than a Fountain of freedom and liberty to act more or less this way or another, as he shall please, for the mani∣festation of his fore-determined Glory. And then lastly, which way soever the glory of this best being, Legislative, Executive, or other, be demonstrated on the Subject (so much at his disposal) it must needs be granted, that this is the best and wisest way for the manifestation of that Glory fore-intended in the disposal of the Creature: His will and pleasure being certainly the most exquisite and absolute prime Rule of all goodness; therefore, as it is unque∣stionably the most absurd and irrational presumption in man, to assume to himself, or lay the least pretended claim to this Supremacy or Soveraignty of Law-giving; so it may not be attributed in the least to any but God alone, the first, absolutest, wisest, best, and most independent Being.

§ 5. A Legislative Power may be also such as is limited by, and subordinated to the will of a superior Legislator; and therefore the power of such an one is not of himself and primitive, but de∣rived from some other: Neither is it bounded by his own Pleasure, but by that of another, to whom he is accountable; because he himself is liable to a Law, which Law he may transgress, in gi∣ving such Laws to his Subjects, which he is not commissionated by his Superior Law-giver to give; and Ergo must not make Laws Pro arbitrio sine limitibus, his arbitrium being received from another, and the bounds allotted it, as to all Jus agendi pro beneplacito; he may act indifferently this way, or that way, in such a compass; but if he pass the Line of his Circumference, he becomes a transgressing Ruler. He sins against his Superiour, and wrongs his Subject.

§ 6. Hence (this subordinate Legislator thus trangressing) the Subject being conscious and clearly convinced thereof, he is disobli∣ged from all active obedience unto any such usurping or transgres∣sing Laws. A Christian's first and greatest obligation being to the Supream and Soverain Power, as a Citizen in a Town-corporate is first bound in obedience to his Prince, before he is to the Mayor or Bayliff of the Town. An Officer substitute by the Prince, and re∣movable at his pleasure, (it's not so in natural and contracted Re∣lations) knowing his obedience to the King, will sufficiently justifie his non submission to the will of the Mayor.

§ 7. Again, the Subject is obliged to obey the Laws which the inferiour Law-giver makes lawfully, (i. e. according to his depu∣tation) not Simpliciter & gratiâ illius, but primarily and most pro∣perly for the sake of the supream Law-giver whose Substitute and Representative he is, Rom. 13.1, 4. 1 Pet. 2.13. and they are so far to be obeyed, but no farther to be owned as lawful Gover∣nours.

§ 8. Thus much of a Legislative Power in general. An Executive Power is a Power of putting in Execution a Law made, or the practical Application thereof according to the manifested will and intendment of the Law-giver. Therefore the power of Execu∣tion is always a secundary and derived Power, in respect of the Power of Legislation; because it supposeth a Law made, and the will of the Law-giver to put it in practice; which Will is the ground of Execution, but is not actually begun till the promulga∣tion, and a positive injunction binding unto practice: and is com∣pleated

either in performing acts of obedience, and receiving the Law-encouragements; (this is chiefly on the part of the Sub∣ject;) or in case of disobedience, by executing the vindicative part of the Law, which belongs to the substituted Executioners to do, and the Subject to submit unto. So that all Laws are sa∣tisfied in obedience, and giving the stated reward thereunto; which satisfaction, Ergo, partly depends on the Subject, partly on the Ruler executing; or they are dissatisfied in disobedience, & therefore right∣ing themselves in executing the minatory part on Offenders. Hence all Laws are capable of being satisfied or fulfilled, as to their whole intent and purpose, one of these ways, in Active or Passive Obe∣dience on the part of the Subject; and the faithful discharge of the executive Power by Governours in the due distribution of rewards and punishments.

§ 10. Hence Executive Power is Obediential or Judicial. Obediential is an executive ability in the Subject bound; for by his obedience unto the Law, he executes and fulfills the will of the Law-giver, most properly as to the first intentions; for the first end of the Law, and designe of its Maker, is actual Obedience, and both in the Command and Penalty annexed. And in this sence the meanest Subject doth put in execution the Law of his Soverain, at l••••st in administration of commutative Justice towards the Magistrate, in rendring him his own, as well as towards his Fellow-subjects, in do∣ing justice to them.

§ 11. Judicial executive Power is when the Law-giver or his Sub∣stitutes, judging of Obedience or Disobedience, as to matter of fact, do judicially determine the same, by and according to the true intent and meaning of the Law; and finding Obedience, di∣stribute the due rewards and encouragements thereunto; and jud∣ging of Disobedience omissive or commissive, do inflict all penalties in such cases by the Law provided: The faithful discharge of which Trust, belongs to Governours, and is rightly called Distributive Ju∣stice.

Notes

• 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Potestas Legislativa, vel Legislatio, Rom. 9.4. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Le∣gislator, Jam. 4.12.

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; Leges sancire, Act. & accipitur Pas. Heb. 7.11. & cap. 8.6.