The Catholic Hierarchy, Chapter 2
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 Preſervation 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, foreign, Poteſtas Legiſlativa, vel Legiſlatio, Rom. 9.4. foreign, Legiſlator, Jam. 4.12. foreign; Leges ſancire, Act. & accipitur Paſ. Heb. 7.11. & cap. 8.6.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 Duty, and upon his failure unavoidably lays him under guilt.
§ 3. A Legiſlative Power is either Sovereign and Ʋnlimited, or Subordinate and Limited. A Sovereign unlimited Legiſlative Power, is a Power in making and giving a Law, (pro placito vel arbitrio Legiſlatoris) 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 Creator 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 inſignificant, 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 Government 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 Diſtribution 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 manifeſtation 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 unqueſtionably 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 derived 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 giving 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 diſobliged from all active obedience unto any ſuch uſurping or tranſgreſſing 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 removable at his pleaſure, (it's not ſo in natural and contracted Relations) 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 deputation) not Simpliciter & gratiâ illius, but primarily and moſt properly 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 Governours.
§ 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 Execution 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 promulgation, and a poſitive injunction binding unto practice: and is compleated either in performing acts of obedience, and receiving the Law-encouragements; (this is chiefly on the part of the Subject;) 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 ſatisfied 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 righting 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 Obedience 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 doing juſtice to them.
§ 11. Judicial executive Power is when the Law-giver or his Subſtitutes, 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, diſtribute the due rewards and encouragements thereunto; and judging 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 Juſtice.