The English works of Thomas Hobbes of Malmesbury, Volume 02 (of 11)
Thomas Hobbes · en
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.
[Sidenote: That greater punishments must not be inflicted, than are
prescribed by the laws.]