yet he does not reach the top & ἀκμὴ of it neither. First, he tells us that Lawes are τὰ Νομιζόμενα,10 such things as are esteemed fitting; but because this might extend to all kinde of customes too, his second thoughts limit and contract it more, and tell us that a Law is Δόγμα πόλεως, Decretum civitatis [the decree of a state], yet because the masse and bulk of people, the rude heap and undigested lump of the multitude may seek to establish τὸ Δόγμα πονηρὸν [a wicked decree], as he calls it; therefore he bethinks himself how to clarifie a Law, how to purge out the drosse from it, and tells us in the next place, that it is του̑ ὄντο ςἐξεύρεσις, inventio ejus quod vere est [the discovery of what truly is], where it is very remarkable what this Philosopher means by τὸ ὂν [being], by which he is wont usually to point out a Deity, which is stiled by Aristotle ὄν ὄντων11 [the Being of beings], but it is not capable of this sense here, for thus Lawes are not του̑ ὄντος ἐξευρήσεις [discoveries of the Deity], but rather του ̑ὄντο ςεὑρήματα [discoveries by the Deity]. Lex est inventio, vel donum Dei [law is the discovery or gift of God], as the Oratour speaks.12 Τὸὂν [being] therefore in this place speaks these two particulars. (1) Τὸ ὀρθόν [right], for all rectitude has a being, and flows from [30] the fountain of being, whereas obliquities and irregularities are meere privations, and non-entities; and ’tis a notable speech of Plato, τὸ μῃν ὀρθὸν νόμος ἐστὶ Βασιλικὸς13 [the right is a royal law], the very same expression which the Apostle gives to the Law of God, when he calls it the royal Law.14 (2) Τὸ ὂν [being] implyes τὸ χρηστὸν [the useful], every thing that is profitable has a being in it, but you can gather no fruit from a privation; there is no sweetnesse in an obliquity, and therefore a Law is an wholsome mixture of that that is just and profitable, and this is τέλος του̑ νόμου [the end of a law], as Plutarch speaks.15 Whereas turpe praeceptum non est lex, sed iniquitas16 [a wicked rule is not a law, but an injustice], for obligation that’s the very forme and essence of a Law; Now every Law obligat in Nomine Dei [binds in the name of God];17 but so glorious a name did never binde to any thing that was wicked and unequal. πα̑ν δίκαιον ἡδὺ, & πα̑ν δίκαιον ὠφέλιμον18 [all justice is sweet, all justice is beneficial], and that only is countenanc’d from heaven. The golden chain of Lawes, ’tis tied to the chair of Jupiter,19 and a command is only vigorous as it issues out, either immediately or remotely, from the great Sovereigne of the world. So that τὸ ὂν [being] is the sure bottome and foundation of every Law. But then because he had not yet exprest who were the competent searchers out of this τὸὂν [being], therefore he tells you in the last place that Laws are πολιτικὰ συγγράμματα20 [political ordinances], which he clears by other things; for ἰατρικὰ συγγράματα [medical ordinances], are ἰατρικοὶ νόμοι [medical laws], & γεωμετρικὰ συγγράμματα [geometrical ordinances] are γεωμετρικοὶ νόμοι [geometrical laws]. And he resolves it into this, that in all true kinds of government there is some supreme power derived from God himself, and fit to contrive Laws and Constitutions agreeable to the welfare and happinesse of those that are to be subject to them; and οἱ κρείττονες21 [the better men] (as he speaks) are the fittest makers of Lawes.
Yet you must take notice here of these two things. (1) That he did not lay stresse enough upon that binding vertue, which is the very sinew, nay the life and soul of a Law. (2) That these three descriptions τὰ νομιζόμενα, δόγμα πόλεως, πολιτικὰ συγγρὰμματα [things esteemed fitting, a decree of the state, political ordinances] intend only humane Lawes, and so are not boild up to the purer notion of a Law in general.
And though that same other branch του ̑ὄντος ἑξεύρεσις [the discovery of what truly is] may seem to reach farther yet, ’tis too obscure, too much in the clouds to give a cleer manifestation of the nature of a Law. And yet Aristotle does not in this supply Platoes defects, but seems rather to paraphrase upon these descriptions of humane Lawes, and tells in more enlarged language, that ὁ νόμος ἐστὶν ὁ λόγος ὡρισμένος καθ̕ ὁμολογίαν κοιὴν πόλεως, μηνύων πω̑ς δει ̑πράττειν ἕκαστα22 [law is a decree determined by the agreement of the state, [31] indicating in what way each thing ought to be done]. Where yet he cannot possibly mean that every individuum should give his suffrage, but certainly the representative consent of the whole will content him.
But I see these ancient Philosophers are not so well furnisht, but that we must return to the Schoolmen again, who by this time have lickt their former descriptions into a more comely forme. We will look upon Aquinas his first.
Lex (saies he) est ordinatio rationis ad bonum commune ab eo qui curam habet Communitatis, Promulgata.23 It is a rational Ordinance for the advancing of publike good, made known by that power, which has care and tuition of the publike.
And Suarez his picture of a Law, now that ’tis fully drawn, hath much the same aspect. Lex est commune praeceptum, justum ac stabile, sufficienter promulgatum.24 A Law is a publike command, a just and immovable command, lifting up its voice like a trumpet, and in respect of the Law-giver, though it do praesupponere actum intellectus [presuppose an act of the intellect], as all acts of the will do; yet it does formally consist in actu voluntatis [in an act of the will]; not the understanding, but the will of a Law-giver makes a Law.25 But in respect of him that is subject to the Law it does consist in actu rationis [in a rational act], ’tis required only that he should know it, not in actu voluntatis [in an act of the will], it does not depend upon his obedience. The want of his will is not enough to enervate and invalidate a Law when ’tis made; all Lawes then would be abrogated every moment. His will indeed is required to the execution and fulfilling of the Law, not to the validity and existence of the Law: and thus all the lawes of God do not at all depend upon the will of man, but upon the power and will of the Law-giver. Now in the framing of every Law there is to be
1. Intentio boni communis26 [an aiming at the common good], and thus that speech of Carneades, Utilitas justi prope mater, & aequi27 [utility is, in one sense, the mother of what is just and fair], if it be took in this sense, is very commendable; whereas in that other sense (in which ’tis thought he meant it) it is not so much as tolerable. Law-givers should send out lawes with Olive-branches in their mouths, they should be fruitful and peaceable; they should drop sweetnesse and fatnesse upon a land. Let not then Brambles make lawes for Trees, lest they scratch them and tear them, and write their lawes in blood.28 But Law-givers are to send out lawes, as the Sun shoots forth his beams, with healing under their wings:29 and thus that elegant Moralist Plutarch speaks, God (saies he) is angry with them that counterfeit his thunder and lightning, οὐ σκη̑πτρον, οὐ κεραυνὸν, οὐ τρίαιναν;30 his Scepter, and his Thunderbolt, and his Trident, he will not let them meddle with these. He does not love they should imitate him in his absolute dominion and sovereignty; but loves to see them darting out those warme, and amiable, and cherishing ἀκτινοβολίαι,31 those [32] beamings out of Justice, and goodnesse, and clemency. And as for Lawes, they should be like so many green and pleasant pastures, into which these ποιμένες λαω̑ν32 [shepherds of nations] are to lead their flocks, where they may feed sweetly and securely by those refreshing streams of justice, that runnes down like water, and righteousnesse like a mighty torrent.33 And this consideration would sweep down many cobweb-lawes, that argue only the venome and
