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that strength so set them free by crushing their oppressors." Very different is the case under free institutions where the rulers are elected by the free suffrages of the people, and bold their power in trust, under constant accountability to their constituents for the manner in which they exercise the trust. The government have no support, no energy, but what depends on the sentiment of the people ; and the more they are enlightened, to understand their rights and the true end of civil institutions, the firmer and more rational will be their support of the government, if administered on just principles, and the more forcibly will the rulers feel their accountability. To this nothing can more contribute, than well conducted

, Journals and periodicals, and it becomes the interest of the government, which is no other than the interest of the whole community, to provide for a safe, speedy, and cheap distribution of them through every part of the State. Under these considerations, it is the duty, as it is the interest of the government, to cherish and to guard with every proper caution the true liberty of the press.—But the same rule holds here as in other cases. No one is allowed to exercise this right so as to injure the right of another.

It becomes necessary therefore to distinguish between the just liberty, and the

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* The following incident will shew the influence of a free press in disseminating liberal principles, and among what classes it principally operates.

In the charter granted by Louis XVIII, to the French nation in 1814, which was called the constitution of the government, was an article for securing in some degree the liberty of the press-subject, however, to many restrictions. In consequence many liberal Journals were circulated through the kingdom, but not without many vexations practised by the court on the editors. Some five or six years now past, an article was published in one of the ultra loyal Journals, in which the editor complains bitterly of the want of support through the loss of subscribers—and that whenever a loyal subscriber died, the son sent him an obituary for publication and the next day subscribed for a liberal Journal. It will be recollected that the revolution of July 1830 was brought about by the indignation excited throughout France by the arrêt of Charles X., for suppressing the liberal Journals and seizing the presses; which terminated in a few days in the deposition of Charles, the banishment of himself and family from France, and the election of the duke of Orleans to the throne.

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licentiousness of the press. The right of character is a personal right highly regarded by the laws of every civilized country. If one person by slander injure the character of another, by words spoken, which is simply denominated defamation, or by writing, or printing, which is denominated a libel, an action is given to the party injured, against the slanderer, to recover damages according to the nature and extent of the injury. The publication of a libel from the extent to which it may readily be circulated, the permanent nature of the injury, and its tendency to disturb the peace of society, has been made a criminal offence and liable to penalties more or less severe. In civil prosecutions for this injury, the person bringing the action, is considered to have put his character in issue. If the defendant can prove the matter charged as defamatory or libellous to be true, it is deemed a good defence; the plaintiff is found not to possess a character to which the law attaches the right of protection. A distinction has been made in most countries, and certainly is in England, between a civil and criminal prosecution for a libel.-In the former the truth is allowed to be a good defence, in the latter, not; and on an indictment for some

, species of libel,* it has been considered a sound maxim of law, that the greater the truth, the greater the offence.

In these United States, generally, I believe I may say universally, the law is different. The truth is admitted to be a good defence as well in a criminal as a civil prosecution for a libel,

This is perfectly consonant to the nature of our institutions and in accordance with the general interest. It is, in a political point of view, the interest of all to obtain a full knowledge of the true character of those who may be candidates for the offices of trust and confidence in the state, the appointments to which depend mediately or immediately on the suffrages of the people. This principle also serves to establish a well marked and a prominent line of distinction between the liberty and the licentiousness of the press ;-the distinction between truth and falsehood. It does not, however, extend to every case of licentiousness ; for the facts published

* Scandalum Magnatum.--Defamation of the great men of the realm.

may be true, and yet the matter may be expressed in language so grossly indecent as to be an offence against good morals and justly punishable as such ; but this is a matter entirely distinct from the civil injury. It is merely an offence against society, and cannot be justified by alleging the truth of the facts.

If these principles are correct, of which it appears to me impossible to doubt, a palpable line of distinction so far as civil and political rights are concerned, has been drawn, between liberty and licentiousness in the case under consideration, so that the licentiousness may be restraind and punished, not only without danger, but with additional security to the liberty of speech and of the press.

BOOK V.

OF THE FORMATION OF GOVERNMENT_THE DISTRIBUTION AND LIMITATION OF THE CIVIL AND POLITICAL POWER.

CHAPTER I.

Of the Civil Compact.

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By the social and civil compact is usually understood the agreement of a people to form themselves into a civil government, providing the mode and the means of making and adopting rules of civil conduct and of carrying them into effect.

Baron Puffendorf, who was very observant of all the forms and distinctions of the ancient schools, tells us, every civil compact, in its nature, consits of two covenants and one decree : that whenever any number of people, in a state of independence, are about to form themselves into a civil state- “ here it will be necessary for all, each with the other, to join, in one lasting society; and in particular, to concert the measures for their safety and welfare, by the public vote. Next it is necessary that a decree should be made, specifying what form of government shall be settled among them.-After this decree is past, to settle the form of government, there will then be occasion for a new covenant, when the person or persons, on whom the sovereignty is conferred, shall be appointed, by which the rulers on the one hand engage themselves to take care of the common peace and security, and the subjects on the other to yield them due obedience."

* B. 7. Sec. 7–8.

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Hobbes, although he admits the civil compact to be necessary in establishing a government, yet excludes Puffendorf's second covenant. He says, “the obligation to obey the supreme civil power, doth not arise immediately from that covenant, by which particular persons give up all their right to the state; but only mediately from hence, that without obedience, the right of sovereignty would have been vain, and insignificant, and of course no commonwealth could have been formed,"* that is, the sovereignty is not conferred by any act of the people.

Of the former author we may observe, that his two covenants and one decree savors more of the subtle schoolman than of the civil jurist ; and of the latter, that his civil compact is made a stepping stone by which the tyrant mounts the throne, and which is afterward to serve only for his foot-stool. It is sufficient for us to say, there are but two kinds of simple civil compacts. The one is between the people themselves, by which the whole government is settled, -as in the establishment of a pure democracy and the improved form derived from that, a government by representation; and this we shall denominate a mutual compact. The other is a compact between the people on the one hand, and the ruling power on the other, whether that power be constituted of one or more persons, and this we shall call a reciprocal compact. But a government formed on this compact, unless there be intervened an effectual provision to secure a faithful performance of the stipulations, as well on the part of the people, as of the rulers, will soon degenerate into anarchy on the one hand, or into despotism, a government of force, on the other ;-In either of which events all civil compact is annihilated. Such has, in all ages, been the fate of every government, the establishment of which has been attempted on this sole foundation.

From these two simple forms of civil compact has been derived a third kind, of a complex nature, partly mutual and partly reciprocal, in which a certain portion of the power has been retained and exercised by the people, another portion vested in a monarch, and a third portion in a body of nobles,

* De Cive. Ch. 5. Sec. 7-13.

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