12.2. 2. Of the Liberty of the Subject.
Philosophic liberty consists in
the free exercise of the will; or at least, if we must speak agreeably
to all systems, in an opinion that we have the free exercise of our
will. Political liberty consists in security, or, at least, in the
opinion that we enjoy security.
This security is never more dangerously attacked than in public or
private accusations. It is, therefore, on the goodness of criminal laws
that the liberty of the subject principally depends.
Criminal laws did not receive their full perfection all at once.
Even in places where liberty has been most sought after, it has not been
always found. Aristotle
[1]
informs us that at Cum the parents of the
accuser might be witnesses. So imperfect was the law under the kings of
Rome that Servius Tullius pronounced sentence against the children of
Ancus Martius, who were charged with having assassinated the king, his
father-in-law.
[2]
Under the first kings of France, Clotarius made a
law
[3]
that nobody should be condemned without being heard; which shows
that a contrary custom had prevailed in some particular case or among
some barbarous people. It was Charondas that first established penalties
against false witnesses.
[4]
When the subject has no fence to secure his
innocence, he has none for his liberty.
The knowledge already acquired in some countries, or that may be
hereafter attained in others, concerning the surest rules to be observed
in criminal judgments, is more interesting to mankind than any other
thing in the world.
Liberty can be founded on the practice of this knowledge only; and
supposing a state to have the best laws imaginable in this respect, a
person tried under that state, and condemned to be hanged the next day,
would have much more liberty than a pasha enjoys in Turkey.
Footnotes
[1]
"Politics," Book ii. p. 8.
[2]
Tarquinius Priscus. See Dionysius Halicarnassus, Book iv.
[3]
As early as the year 560.
[4]
Aristotle, "Politics," Book ii. p. 12. He gave his laws at Thurium in the
84th Olympiad.
