a Law should be a staffe for a Common-wealth to lean on, and not a Reed to pierce it through. Laws should be cords of love, not nets and snares. Hence it is that those laws are most radical and fundamental, that principally tend to the conservation of the vitals and essentials of a Kingdome; and those come neerest the Law of God himself, and are participations of that eternal Law, which is the spring and original of all inferiour and derivative lawes. του ̑ἀρίστου ἕνεκα πάντα τὰ νόμιμα36 [all laws exist for the sake of the good], as Plato speaks; and there is no such publick benefit, as that which comes by lawes; for all have an equal interest in them, and priviledge by them. And therefore as Aristotle speaks most excellently, Νόμος ἐστὶ νου̑ς ἄνευ ὀρέξεως.37 A Law is a pure intellect, not only without a sensitive appetite, but without a will. ’Tis pure judgement without affections, a Law is impartial and makes no factions; and a Law cannot be bribed though a Judge may. And that great Philosopher does very well prosecute this; If you were to take physick (saies he) then indeed ’tis ill being determined by a book, ’tis dangerous taking a printed recipe, you had better leave it to the breast of the Physician, to his skill and advice, who mindes your health and welfare, as being most for his gain and credit.38 But in point of justice the case is very different; you had better here depend upon a Rule, then to leave it to the arbitrary power of a Judge, who is usually to decide a controversie between two; and if left to himself, were apt to be swayed and biassed by several interests & engagements, which might encline him to one more then another. Nay now that there is a fixt rule, an immovable law, yet there is too much partiality in the application of it; how much more would there be, if there were no rule at all?
But the truth is, the Judge should only follow the ultimum & practicum dictamen legis [last and practical dictate of the law]; his will like a caeca potentia [blind power] is to follow the novissimum lumen intellectus [most recent intellectual light] of this Νου̑ς [mind] that is to rule and guide him, and therefore justice was painted blinde, though ipsa lex [the law itself] be oculata [sighted], [33] for Νου̑ς ὁρᾳ̑, Νου̑ς ἀκούει39 [the mind sees, the mind hears], and the will is to follow the ultimum nutum capitis [the last assent of the mind], the meaning of the Law in all circumstances.
2. In a Law-giver, there is to be judicium & prudentia Architectonica ad ferendas leges40 [judgment and constructive discretion for making laws]; the Aegyptian Hieroglyphick for legislative power, was Oculus in sceptro41 [an eye in a sceptre]; and it had need be such an eye that can see both π ρόσσω καὶ ὀπίσσω42 [before and behind]. It had need have a full and open prospect into publike affairs, and to put all advantages into one scale, and all inconveniences into another.
To be sure the Lawes of God, they flow from a fountain of wisdome, and the lawes of men are to be lighted at this Candle of the Lord, which he has set up in them, and those lawes are most potent and prevalent that are founded in light, ἡ του̑ λογισμου̑ ἀγωγὴ χρυση̑ καὶ ἱερά43 [the guidance of reason is golden and divine]. Other laws are σκληροὶ, καὶ σιδήρεοι, they may have an iron and adamantine necessity, but the others have a soft and downy perswasion going along with them, and therefore as he goes on του̑ λογισμου̑ καλου̑ μῃν ὄντος, πράου δῃ καὶ οὐ βιαίου. Reason is so beautiful, as that it wins and allures, and thus constrains to obedience.
3. There is to be sigillum Legis [a seal of law], I meane Electio & Determinatio Legis [the selection and determination of a law], after a sincere aime at publick good, and a clear discovery of the best means to promote it, there comes then a fixt and sacred resolution; Volumus & statuimus [we will and decree], this speaks the will of the Law-giver, and breaths life into the Law, it addes vigour and efficacy to it.44 But yet notwithstanding,
4. There must be vox tubae [the voice of the trumpet], that is, promulgatio & insinuatio Legis45 [the promulgation and recommendation of the law]; The Law ’tis for a publick good, and is to be made known in a publick manner; for as none can desire an unknown good, so none can obey an unknown Law; and therefore invincible ignorance does excuse; for else men should be bound to absolute impossibilities. But whether it be required to the publishing of a Law that it should be in way of writing, which is more fixt and durable, or whether the manifestation of it in a Vocal and Oral manner will suffice, (which yet is more transient and uncertain) I leave the Lawyers and Schoolmen to dispute it. This I am sure, that all the Lawes of God are proclaimed in a most sufficient and emphatical manner.
[34] Having thus lookt upon the being of a Law in general, we now come to the spring and original of all Lawes, to the eternal Law, that fountain of Law, out of which you may see the Law of Nature bubbling and flowing forth to the sons of men. For, as Aquinas does very well tell us, the Law of Nature is nothing but participatio Legis aeternae in Rationali creatura,1 the copying out of the eternal Law, and the imprinting of it upon the breast of a Rational being, that eternal Law was in a manner incarnated in the Law of Nature.
Now this eternal Law it is not really distinguished from God himself. For Nil est ab aeterno nisi ipse Deus2 [nothing exists eternally except God himself], so that ’tis much of the same nature with those decrees of his, and that Providence which was awake from everlasting. For as God from all eternity by the hand of infinite wisdome did draw the several faces and lineaments of being, which he meant to shew in time: So he did then also contrive their several frames with such limits and compasse as he meant to set them; and said to every thing, Hither shalt thou go, and no farther.3
This the Platonists4 would call ἰδέαν τω̑ν νόμων [the ideal of laws], and would willingly heap such honourable titles as these upon it, ὁ νόμος ἀρχηγὸς, πρωτουργὸς, αὐτοδίκαιος, αὐτόκαλος, αὐτοάγαθος, ὁ ὄντως νόμος, ὁ νόμος σπερματικός [the archetypal law, primary, intrinsically just, beautiful and good, the essential law, the seminal law]. And the greatest happinesse the other Lawes can arrive unto, is this, that they be Νόμοι δουλεύοντες, καὶ ὑπηρετου̑ντες, ministring and subservient Lawes; waiting upon this their Royal Law. Σκιαὶ νόμων; Or as they would choose to stile them, Νομοειδει̑ς, some shadows & appearances of this bright and glorious Law, or at the best, they would be esteemed by them but Νόμοι ἔκγονοι, the noble off-spring and progeny of Lawes; blessing this womb that bare them, and this breast that gave them suck.5
And thus the Law of Nature would have a double portion as being Lex primogenita, the first-born of this eternal Law, and the beginning of its strength.6 Now as God himself shews somewhat of his face in the glasse of creatures, so the beauty of this Law gives some representations of it self in those pure derivations of inferiour Lawes that stream from it. And as we ascend to the first and [35] supreme being, by the steps of second causes; so we may climb up to a sight of this eternal Law, by those fruitful branches of secondary Lawes, which seem to have their root in earth, when as indeed it is in heaven; and that I
