LITMIR.BIZ

       Of the Nature of a Law in General

      [28] Before we can represent unto you the Law of Nature, you must first frame and fashion in your mindes the just notion of a Law in general. And Aquinas gives us this shadowy representation of it; Lex est quaedam regula & mensura, secundum quam inducitur aliquis ad agendum, vel ab agendo retrahitur¹ [law is a certain rule and measure, according to which any agent is led to act, or restrained from acting]. But Suarez is offended with the latitude of this definition, and esteems it too spreading and comprehensive, as that which extends to all Naturals, I, and to Artificials too; for they have regulas & mensuras operationum [rules and measures of their operations]; Thus God has set a Law to the waves, and a Law to the windes; nay, thus clocks have their lawes, and Lutes have their Lawes, and whatsoever has the least appearance of motion, has some rule proportionable to it. Whereas these workings were alwayes reckoned to be at the most but inclinationes, & pondera [tendencies and gravitations], and not the fruits of a legislative power. But yet the Apostle Paul, to staine the pride of them that gloried in the Law, calls such things by the name of Law as were most odious and anomalous. Thus he tells us of Νόμος θανάτου, & Νόμος ἁμαρτίας² [the law of death and the law of sin], though sin be properly ἀνομία [lawless]: Thus he mentions Legem membrorum³ [the law of members], the same which the Schoolmen call Legem fomitis⁴ [the law of passion]

      And yet this is sure, that a rational creature is only capable of a Law, which is a moral restraint, and so cannot reach to those things that are necessitated to act ad extremum virium⁵ [to the limit of their powers].

      And therefore Suarez does give us a more refined description, when he tells us that Lex est mensura quaedam actuum moralium, ita ut per conformitatem ad illam, Rectitudinem moralem habeant, & si ab illa discordent, obliqui sint⁶ [law is a certain measure of moral acts, such that by conformity to it, they are judged morally right, by disagreement with it, morally wrong]. A Law is such a just and regular tuning of Actions, as that by vertue of this they may conspire into a moral musick, and become very pleasant and harmonious. Thus Plato speaks much of that Εὐρυθμία & συμφωνία [melody and harmony] that is in Lawes, and in his second book De Leg.⁷ he does altogether discourse of harmony, and does infinitely prefer mental and intellectual musick, those powerful and prac[29]tical strains of goodnesse, that spring from a well-composed spirit, before those delicious blandishments, those soft and transient touches that comply with sense, and salute it in a more flattering manner; and he tells you of a spiritual dancing that is answerable to so sweet a musick, to these τὰ θείοτατα αὐλήματα⁸ [most divine flutings]. Whilest the Lawes play in consort, there is a Chorus of well ordered affections that are raised and elevated by them.

      And thus as Aristotle well observes, some Lawes were wont to be put in verse, and to be sung like so many pleasant odes, that might even charme the people into obedience.

      ’Tis true, that learned Philosopher gives this reason of it, they were put into verse, ὅπως μὴ ἐπιλάθωνται,⁹ that they might remember them the better: but why may not this reason also share with it, that they might come with a greater grace and allurement, that they might hear them as pleasantly as they would do the voice of a Viall or an Harp, that has Rhetorick enough to still and quiet the evill spirit? But yet this does not sufficiently paint out the being of a Law, to say that ’tis only regula & mensura [rule and measure]; and Suarez himself is so ingenuous as to tell us that he cannot rest satisfied with this description, which he drew but with a coale as a rudiment rather then a full portraiture; and therefore we’ll give him some time to perfect it, and to put it into more orient colours.

      And in the meane time we’ll look upon that speculative Law-giver, Plato I mean, who was alwayes new modelling of Lawes, and rolling Political Ideas in his minde.

      Now you may see him gradually ascending and climbing up to the description of a law, by these four several steps, & 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

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