Читать книгу An Elegant and Learned Discourse of the Light of Nature - Nathaniel Culverwell - Страница 16

CHAPTER 4

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 [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 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 [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.