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.

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.

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.

thus forming three co-ordinate branches of the government, and providing, in a good degree, security against anarchy on the one side, and against the exercise of arbitrary power on the other.

It is doubtless true, that in the earliest stages of society no civil compact was ever formed by the deliberate act and express consent of any people. In such a state of things, every civil constitution has been the child of custom ;—It seems not to have preceded some rules of civil conduct but to have been introduced with such rules, or for the sake of them. The social compact, if it be proper to give that name to the mode, in which the social state is attained, has not its origin, although it may have its consummation, in the invention or deliberate act of man, but is imposed by nature, in the manner explained in a former chapter. In subsequent periods, however, there is often a deliberate act of choosing between two or more societies, already existing, or a preconcert of individuals to form a new and independent association. But whatever be the origin of the social state; it is impossible to conceive of any rights or duties, civil or moral, independent of that state, in a total seclusion of all social relations.

Mr. Paley, in his Elements of Political Knowledge, lays it down, that all governments were at first either patriarchal or military; that of a father of a family, or a military commander over his soldiers. This cannot be correct,-it cannot be conceived that in the primordial state of man, military government should have immediately succeeded the patriarchal.-Whether we admit the patriarchal among the forms of civil government or not, certainly, in the simple state of one only family existing, it was all that was necessary. But the first patriarchal government could continue no longer than the life of the first patriarch, or common progenitor. If any of the children of the first patriarch separated themselves from the family and settled into different regions, they might continue the patriarchal government each in his own family, but on the death of each patriarch, his descendants, who continued in the same society, were left without a common governor, and a complete and entire separation of all the families, as they came on the stage, cannot be imagined. In this way, however, we may suppose,

and ancient tradition justifies the supposition, that numerous races and tribes were formed each on the death of its common progenitor left in a state of independence, as far as relates to civil institutions, united by the social habits and affections only, which they had acquired while under the government of their common parent. It cannot, with any degree of probability, be supposed, that in this infant state of the human race, a state of conquest was effected, before or coeval with the transition from the patriarchal state of independent families, to that of nations and tribes, without which we cannot suppose the introduction of a military government.

This we may, then, consider as the primitive state, not of man, but of society, beyond the precincts of families; of nations or rather of tribes,-that independent state of society with which political writers have commenced their speculations, and which must, at one time or another, have been the situation of every original people on the face of the earth. Authentic history does not, perhaps, reach back to this state of any nation, but the traditions of all concur in pointing us to its former existence. In this situation, on the demise of the patriarch in any tribe, there is already an association, which consists of families, rather than individuals, each father acting for those of his immediate family ;-The people have become capable of sustaining the moral and social relations, féw and simple indeed, pertaining to that state and of appreciating their results, so far as that state furnishes sufficient knowledge. Now if we do not suppose the civil state already commenced in such society, it is impossible, the people should long continue, without passing into that state. And a general conception of social rights and duties, with a general acknowledgment of them, among a people, is the first commencement of civil institutions. These rights and duties from common feelings, common experience and observation, are in a course of time, more and more developed, more comprehended, and more respected by the common sentiment, until at last they become fully consecrated by custom. It is natural to suppose, that the form of government adopted by a people, in the state just described, would be similar to the patriarchal government, which they had experienced, and of which alone they could be