That more ought not to be determined by the laws, than the benefit of prince and subjects require.
15. The liberty of subjects consists not in being exempt from the laws 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 laws, 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 do or not do them as he lists himself. 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 natural right which is granted and left to subjects by the civil laws. As water inclosed on all hands with banks, stands still and corrupts; having no bounds, it spreads too largely, and the more passages it finds the more freely it takes its current; so subjects, if they might do nothing without the commands of the law, would grow dull and unwieldy; if all, they would be dispersed; and the more is left undetermined by the laws, the more liberty they enjoy. Both extremes are faulty; for laws were not invented to take away, but to direct men’s actions; even as nature ordained the banks, not to stay, but to guide the course of the stream. The measure of this liberty is to be taken from the subjects’ and the city’s good. Wherefore, in the first place, it is against the charge of those who command and have the authority of making laws, that there should be more laws than 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 natural reason rather than any knowledge of the laws, where there are more laws than can easily be remembered, and whereby such things are forbidden as reason of itself prohibits not of necessity, they must through ignorance, without the least evil intention, fall within the compass of laws, as gins laid to entrap their harmless liberty; which supreme commanders are bound to preserve for their subjects by the laws of nature.
That greater punishments must not be inflicted, than are prescribed by the laws.
16. It is a great part of that liberty, which is harmless to civil 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 laws, or greater not required than are defined. Where there are none defined, there he that hath first broken the law, expects an indefinite or arbitrary punishment; and his fear is supposed boundless, because it relates to an unbounded evil. Now the law of nature commands them who are not subject to any civil laws, by what we have said in chap. III. [art. 11], and therefore supreme commanders, that in taking revenge and punishing they must not so much regard the past evil as the future good; and they sin, if they entertain any other measure in arbitrary punishment than the public 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 do 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 natural equity commands that equal transgressors be equally punished); there to impose a greater penalty than is defined by the law, is against the law of nature. For the end of punishment is not to compel the will of man, but to fashion it, and to 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 conveniences and inconveniences of the fact we are attempting; where that which is more weighty, doth necessarily according to its inclination prevail with us. If therefore the legislator doth set a less penalty on a crime, than will make our fear more considerable with us than our lust, that excess of lust above the fear of punishment, whereby sin is committed, is to be attributed to the legislator, that is to say, to the supreme; and therefore if he inflict a greater punishment than himself hath determined in his laws, he punisheth that in another in which he sinned himself.
Subjects must have right restored to them against corrupt judges.
17. It pertains therefore to the harmless and necessary liberty of subjects, that every man may without fear enjoy the rights which are allowed him by the laws. For it is in vain to have our own distinguished by the laws from another’s, if by wrong judgment, robbery, or theft, they may be again confounded. But it falls out so, that these do happen where judges are corrupted. For the fear whereby men are deterred from doing evil, ariseth not from hence, namely, because penalties are set, but because they are executed. For we esteem the future by what is past, seldom expecting what seldom happens. If therefore judges corrupted either by gifts, favour, or even by pity itself, do often forbear the execution of the penalties due by the law, and by that means put wicked men in hope to pass unpunished: honest subjects encompassed with murderers, thieves, and knaves, will not have the liberty to converse freely with each other, nor scarce to stir abroad without hazard; nay, the city itself is dissolved, and every man’s right of protecting himself at his own will returns to him. The law of nature therefore gives this precept to supreme commanders, that they not only do righteousness themselves, but that they also by penalties cause the judges, by them appointed, to do 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.
CHAPTER XIV.
OF LAWS AND TRESPASSES.
[1.] How law differs from counsel. [2.] How from covenant. [3.] How from right. [4.] Division of laws into divine and human: the divine into natural and positive; and the natural into the laws of single men and of nations. [5.] The division of human, that is to say, of civil laws into sacred and secular. [6.] Into distributive and vindicative. [7.] That distributive and vindicative are not species, but parts of the laws. [8.] All law is supposed to have a penalty annexed to it. [9.] The precepts of the decalogue of honouring parents, of murder, adultery, theft, false witness, are civil laws. [10.] It is impossible to command aught by the civil law contrary to the law of nature. [11.] It is essential to a law, both that itself and also the lawgiver be known. [12.] Whence the lawgiver comes to be known. [13.] Publishing and interpretation are necessary to the knowledge of a law. [14.] The division of the civil law into written and unwritten. [15.] The natural laws are not written laws; neither are the wise sentences of lawyers nor custom laws of themselves, but by the consent of the supreme power. [16.] What the word sin, most largely taken, signifies. [17.] The definition of sin. [18.] The difference between a sin of infirmity and malice. [19.] Under what kind of sin atheism is contained. [20.] What treason is. [21.] That by treason not the civil, but the natural laws are broken. [22.] And that therefore it is to be punished not by the right of dominion, but by the right of war. [23.] That obedience is not rightly distinguished into active and passive.
How law differs from counsel.