An Elegant and Learned Discourse of the Light of Nature. Nathaniel Culverwell
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 subtilty of them that spin them; this would sweep down many an Achitophels web and many an Hamans web, many an Herods web;34 every spiders web that spreads lawes only for the catching and entangling of weaker ones; such Law-givers are fit to be Domitians play-fellows, that made it his Royal sport and pastime to catch flies, and insult over them when he had done.35 Whereas 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