All that he seems to mean
is, that if there be an act which at times might appear advantageous,
and yet is never commanded, there is a presumption of the legislator
being averse to that act. Again, there are special occasions, in view
of which the legislator undertakes to regulate the whole outward
conduct of a man by positive enactment, as with a soldier on parade:
what is not there commanded, is forbidden. But these instances do not
derogate from our general proposition, which is proved in this way.
The office of law is not to loose, but to bind. It declares, not what
the subject may do, but what he must or must not. It does not bring
liberty, but restriction. Therefore, if any one wishes to assert a
restriction, he must go to a law to prove it. If he can find none,
liberty remains. The law is laid on liberty. Liberty is not the
outcome of law, but prior to it. Liberty is in possession. The burden
of proof rests with those who would abridge liberty and impose an
obligation. It is an axiom of law itself, a natural, not an arbitrary
axiom, that _better is the condition of the possessor_: which amounts
in this matter to another statement, also axiomatic, _that a law binds
not till it is promulgated_.
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