dross from it, and tells us, in the next place, that it is 'the finding out of what really is," where it is very remarkable what this philosopher means by 'that which is,'2 by which he is wont usually to point out a Deity, which is styled by Aristotle'the Being of beings;'3 but it is not capable of this sense here, for thus laws are not 'discoveries made of the Deity,' but rather 'discoveries made by the Deity ;'5 'a law is an invention or gift of God,' as the orator speaks. That which is," therefore, in this place, speaks these two particulars. (1.) The right,' for all rectitude has a being, and flows from the fountain of being, whereas obliquities and irregularities are mere privations and nonentities; and it is a notable speech of Plato, '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.' James ii. 8. (2.) That which is,'10 implies the useful.' Everything that is profitable has a being in it, but you can gather no fruit from a privation; there is no sweetness in an obliquity, and therefore a law is a wholesome mixture of that which is just and reasonable, and that is 'the end of a law,'12 as Plutarch speaks. Whereas, 'a wicked command is not a law, but an injustice ;'13 for obligation is the very form and essence of a law. Now every law 'binds in the name of God ;'14 but so glorious a name did never bind to anything that was wicked and unequal. 'All that is just is sweet,'15 'all that is just is useful,'16 and that only 1 Τοῦ ὄντος ἐξεύρεσις—Inventio ejus quod vere est. 2 Τὸ ὄν. • Τοῦ ὄντος ἐξευρέσεις. • Lex est inventio, vel donum Dei. • Τὸ ὀρθόν. 10 Tò ov. 3 Ον ὄντων. 5 Τοῦ ὄντος εὑρήματα. 7 Tò ov. • Τὸ μὲν ὀρθὸν νόμος ἐστὶ βασιλικός. 11 Τὸ χρηστὸν. 13 Téλos тoû voμov.-Ad. Princ. Indoct., p. 780. Xyland. 18 Turpe præceptum non est lex, sed iniquitas. 14 Obligat in nomine Dei. 10 Πᾶν δίκαιον ὠφέλιμον. 15 Πᾶν δίκαιον ἡδύ. is countenanced from heaven. The golden chain of laws is tied to the chair of Jupiter, and a command is only vigorous as it issues out, either immediately or remotely, from the great Sovereign of the world. So that 'The Being' is the sure bottom and foundation of every law. But then because he had not yet expressed who were the competent searchers out of this 'Being," therefore he tells you in the last place, that laws are 'political ordinances," which he clears by other things; for medical ordinances '4 are 'medical laws,' and geometrical ordinances' are '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 happiness of those that are to be subject to them; and 'the better sort of men,' as he speaks, are the fittest makers of laws. Yet you must take notice here of these two things:(1.) That he did not lay stress enough upon that binding virtue, which is the very sinew, nay, the life and soul of a law. (2.) That these three descriptions, 'things esteemed fitting,' 'a decree of the state,'10 'political ordinances,'11 intend only human laws, and so are not boiled up to the purer notion of a law in general. And though that same other branch, 'the finding out of what really is,'12 may seem to reach farther yet, it is too obscure, too much in the clouds, to give a clear manifestation of the nature of a law. And yet Aristotle does not in this supply Plato's defects, but seems rather to paraphrase upon these descriptions of human laws, and tells in more 1 Τὸ ὄν. 2 Τὸ ὄν. 8 Πολιτικὰ συγγράμματα. 5 Ἰατρικοὶ νόμοι. * Γεωμετρικά συγγράμματα. * Γεωμετρικοὶ νόμοι. 8 Οἱ κρείττονες. • Τὰ νομιζόμενα. 10 Δόγμα πόλεως. 11 Πολιτικὰ συγγράμματα. 12 Τοῦ ὄντος ἐξεύρεσις, enlarged language, that a law is a judgment determined by the common consent of the state, indicating how each. thing must be done.'1 Where yet he cannot possibly mean that every individual 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 furnished but that we must return to the schoolmen again, who by this time have licked their former descriptions into a more comely form. We will look upon Aquinas's first: 'Law,' says he, 'is a rational ordinance for the advancing of public good, made known by that power, which has care and tuition of the public.'2 And Suarez's picture of a law, now that it is fully drawn, hath much the same aspect. 'A law is a public command, a just and immovable command, lifting up its voice like a trumpet;' and in respect of the lawgiver, though it do 'presuppose an act of the intellect,' as all acts of the will do; yet it does formally consist in an act of the will;'5 not the understanding, but the will of a lawgiver makes a law. But in respect of him that is subject to the law, it does consist in an act of the reason, it is required only that he should know it, not '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 it is made; all laws would then 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 laws of God do not 1 Ο νόμος ἐστὶν ὁ λόγος ὡρισμένος καθ ̓ ὁμολογίαν κοινὴν πόλεως, μηνύων πws deî πрáтTEL EKασTα.-Rhet. ad Alexand. Par. I. tom. ii. p. 1420. Bekker. Berol. 1831. 2 Lex est ordinatio rationis ad bonum commune, ab eo, qui curam habet communitatis, promulgata. 3 Lex est commune præceptum, justum ac stabile, sufficienter promul1 Præsupponere actum intellectus. gatum. In actu voluntatis. In actu rationis. In actu voluntatis. 14, 15. at all depend upon the will of man, but upon the power and will of the Lawgiver. Now, in the framing of every law there is to be (1.) 'An aiming at the common good;'1 and thus that speech of Carneades, utility may almost be called the mother of what is just and fair,' if it be taken in this sense, is very commendable, whereas, in that other sense (in which it is thought he meant it), it is not so much as tolerable. Lawgivers should send out laws with olive-branches in their mouths; they should be fruitful and peaceable; they should drop sweetness and fatness upon a land. Let not then brambles make laws for trees, lest they scratch them Judg. ix. and tear them, and write their laws in blood. But lawgivers are to send out laws, as the sun shoots forth his Mal. iv. 2. beams, with healing in his wings.' And thus that elegant moralist Plutarch speaks, "God," says he, "is angry with them that counterfeit his thunder and lightning, 'His sceptre, 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 warm, and amiable, and cherishing 'rays,' those 'beamings out' of justice, and goodness, and clemency. And as for laws, they should be like so many green and pleasant pastures, into which these 'shepherds of nations' are to lead their flocks, where they may feed sweetly and securely by those refreshing streams of justice that roll down like water, Amos v. 24. ‘and of righteousness like a mighty torrent.' And this consideration would sweep down many cobweb laws, that argue only the venom and subtlety of them that spin them; this would sweep down many an Ahithophel's 2 Utilitas justi prope mater et æqui. 1 Intentio boni communis. • Οὐ σκήπτρον, οὐ κεραυνὸν, οὐ τρίαιναν. 5 Ποιμένες λαῶν. web, many a Haman's web, many a Herod's web; every spider's web that spreads laws only for the catching and entangling of the weaker ones. Such lawgivers are fit to be Domitian's play fellows, that made it his royal sport and pastime to catch flies, and insult over them when he had done. Whereas a law should be a staff for a commonwealth 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 kingdom; and those come nearest the law of God himself, and are participations of that eternal law, which is the spring and original of all inferior and derivative laws. All laws are made for the sake of advantage," as Plato speaks; and there is no such public benefit as that which comes by laws; for all have an equal interest in them, and privilege by them. And, therefore, as Aristotle speaks most excellently, 'law is intellect without propension.'2 A law is a pure intellect, not only without a sensitive appetite, but without a will. 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 physic,' says he, then indeed it is ill being determined by a book; it is dangerous taking a printed receipt; you had better leave it to the breast of the physician, to his skill and advice, who minds your health and welfare, as being most for his gain and credit. But in point of justice the case is very different; you had better here depend upon a rule, than leave it to the arbitrary power of a judge, who is usually to decide a controversy between two, and, if left to himself, were apt to be swayed and biassed by several interests and 1 Toû ȧpíσTov čveka távra тà vóμipa.-Plato, De Legibus, i. sect. 4. 2 Νόμος ἐστὶ νοῦς ἄνευ ὀρέξεως.—Aristot. Εth. Nic. 1. 2. 1. |