第37章

XV. The liberty of subjects consists not in being exempt from the Lawes of the City, or that they who have the supreme power cannot make what Laws they have a mind to; but because all the motions and actions of subjects, are never circumscribed by Lawes, nor can be, by reason of their variety, it is necessary that there be infinite cases, which are neither commanded, nor prohibited, but every man may either doe, or not doe them, as he lists himselfe. In these, each man is said to enjoy his liberty, and in this sense liberty is to be understood in this place, namely, for that part of naturall Right, which is granted and left to Subjects by the civill Lawes. As water inclosed on all hands with banks, stands still and corrupts; having no bounds, it spreds too largely, and the more passages it findes, the more freely it takes its current; so subjects, if they might doe nothing without the commands of the Law would grow dull, and unwildly, if all, they would be disperst, and the more is left undetermined by the Lawes, the more liberty they enjoy. Both extremes are faulty, for Lawes were not invented to take away, but to direct mens actions, even as nature ordained the banks, not to stay, but to guide the course of the streame. The measure of this liberty is to be taken from the subjects, and the Cities good. Wherefore in the first place it is against the charge of those who command, and have the authority of making lawes, that there should be more lawes then necessarily serve for good of the Magistrate, and his Subjects; for since men are wont commonly to debate what to do, or not to do, by naturall reason, rather then any knowledge of the Lawes, where there are more Lawes then can easily be remembred, and whereby such things are forbidden, as reason of it selfe prohibites not of necessity, they must through ignorance, without the least evill intention, fall within the compasse of Lawes, as gins laid to entrap their harmelesse liberty, which supreme Commanders are bound to preserve for their subjects by the Lawes of nature.

XVI. It is a great part of that liberty which is harmlesse to civill government, and necessary for each subject to live happily, that there be no penalties dreaded, but what they may both foresee, and look for. and this is done, where there are either no punishments at all defined by the Lawes, or greater not required then are defined. Where there are none defined, there he that hath first broken the Law, expects an indefinite or arbitrary punishment, and his feare is supposed boundlesse, because it relates to an unbounded evill; now the Law of nature commands them who are not subject to any civill Lawes, (by what we have said in the third Chapter, Artic. 11.) and therefore supreme Commanders, that in taking revenge and punishing, they must not so much regard the past evill, as the future good, and they sin, if they entertain any other measure in arbitrary punishment, then the publique benefit. But where the punishment is defined, either by a Law prescribed, as when it is set down in plain words, that he that shall doe thus, or thus, shall suffer so and so; or by practice, as when the penalty, (not by any Law prescribed, but arbitrary from the beginning) is afterward determined by the punishment of the first. delinquent (for naturall equity commands that equall transgressors be equally punished); there to impose a greater penalty then is defined by the Law, is against the Law of nature. For the end of punishment is not to compell the will of man, but to fashion it, & make it such as he would have it who hath set the penalty. And deliberation is nothing else but a weighing, as it were in scales, the conveniencies, and inconveniencies of the fact we are attempting; where, that which is more weighty, doth necessarily according to its inclination prevaile with us. If therefore the Legislator doth set a lesse penalty on a crime, then will make our feare more considerable with us, then our lust; that excesse of lust above the feare of punishment, whereby sinne is committed, is to be attributed to the Legislator (that is to say) to the supreme; and therefore if he inflict a greater punishment, then himselfe hath determined in his Lawes, he punisheth that in another, in which he sinned himselfe.

XVII. It pertaines therefore to the harmlesse and necessary liberty of subjects, that every man may without feare, enjoy the rights which are allowed him by the Lawes; for it is in vain to have our own distinguisht by the Lawes from anothers, if by wrong judgement; robbery, theft, they may bee again confounded. But it falls out so, that these doe happen where Judges are corrupted; for the fear whereby men are deterred from doing evill, ariseth not from hence, namely, because penalties are set, but because they are executed; for we esteeme the future by what is past, seldome expecting what seldome happens. If therefore Judges corrupted either by Gifts, Favour, or even by pitty it self, do often forbear the execution of the Penalties due by the Law, and by that meanes put wicked men in hope to passe unpunisht: honest Subjects encompast with murtherers, theeves and knaves, will not have the liberty to converse freely with each other, nor scarce to stirre abroad without hazard; nay, the City it self is dissolved, and every mans right of protecting himself at his own will returnes to him. The Law of Nature therefore gives this precept to Supreme Commanders, that they not onely doe righteousnesse themselves, but that they also by penalties cause the Judges, by them appointed, to doe the same; that is to say, that they hearken to the complaints of their Subjects; and as oft as need requires, make choice of some extraordinary Judges, who may hear the matter debated concerning the ordinary ones.