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[xxxviii. 25]
1822. July 15
Constitut. Code Rationale.
Securities
5 Moral Counterforce
Public Opinion Tribunal
Evidence and Comments
33. 2. So, on the field of taste: viz.
1. Of the sexual appetite, eccentricities by which no power is produced. By indication of them, power may be produced enough to fill a whole life with bitterness. Enemy to greatest happiness, not the agent but the indicator. Greater the evil produced by the indication where the │ │ has than where it has not been done. By groundlessness of the indication is afforded comfort in the opposite case wanting.
34. 2. Breach of marriage contract, particularly on female side. Act unknown, pleasure none, pain none. For punishing an act, sole good reason, the danger it produces of disclosure: disclosure generally but too probable.
35. Advantages of this moral over legal punishment.
1. Application more extensive, even all-comprehensive: viz. to every thing by which happiness is lessened: to vices as well as crimes.
2. More gentle: incapable of running into such great excess.
3. More extensive: not exposed to be evaded by want of evidence and by quibbles.
Better reason therefore for crying out against legal punishment than against defamation.
36. So far as law contributes to greatest happiness, Public opinion Tribunal strengthens it. Against all acts vitious enough to be punished as criminal, it furnishes it with a fund of Evidence in the shape of defamation, in so far as useful and true.
37 Through this channel, depredation and oppression inflicted for want of law or by law, are met by complaint, and their course stopt or retarded. Sufferers, otherwise helpless, receive mitigation.
38 Act (suppose) not only vitious but punishable. Give intimation of it through the appropriate channel to Public opinion Tribunal, the information thus furnished, though it can not be acted upon by Judges to the purpose of conviction may be by individuals to the purpose of prosecution and investigation of legally receivable Evidence.
39. Against evil produced or protected by Rulers, i.e. by the law, this applies the only remedy.
40. Every endeavour to destroy or diminish this counterforce is do. to apply strength to misrule, decrease to human happiness, encrease to human misery.
Of the foulest individual crime nothing worse, nothing so bad, can with truth be said.
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Title: [[clx. 350] 1822 July 14 Constitut]Description: [clx. 350] 1822 July 14 Constitut. Code Rationale Securities Counterforce 4 Legal responsibility 5 Moral responsibility Evidence etc its necessity? The power /efficiency/ of the popular or moral sanction with its Public-Opinion Tribunal can not be strengthened, but the efficiency of the law in so far as its force is employed in augmentation of the happiness of the people is also strengthened. In so far as misdeed, which by reason of its detrimental effect on happiness is vicious, and thereby exposes the agent to punishment at the hands of the Public-Opinion Tribunal is moreover criminal - an act of delinquency against the law exposing the agent to punishment at the hands of the law, every channel through which defamation as above may be divulgated is a channel through which in so far as the defamation takes this turn, strength and efficiency is given to the law. Through these channels men who in themselves are, and would otherwise remain, helpless, receive help, and abatement of their sufferings: injuries and sufferings which would otherwise swell to an indefinite bulk, /a boundless magnitude, and rendered altogether remediless/ are met by complaint, and kept within bounds: through this channel men who by their own indigence and the rapacity of lawyers are rendered destitute /deprived/ of all help at the hands of the legal sanction with its tribunals /judicatories/ find a limit and thence a mitigation to their sufferings For suppose the act in question to be of the number of those to which punishment is /stands/ attached as well by /at/ the hands /power/ of the legal sanction as at the hands of the popular or moral sanction, as well at the hands of the legal judicatories as at the hands of the Public-Opinion: this being the case, to give intimation of it to the members of the community at large in their capacity of members of the Public-Opinion Tribunal is to give indication by the help /light/ of which not only witnesses, but prosecutors at the bar of the competent legal tribunal, may be brought into action, and the further investigation of whatsoever relevant facts would otherwise remain in darkness promoted /produced/: that which to the uncorrupted free and ever open Public Opinion Tribunal is evidence to the purpose of conviction in an immediate way, being to the legal tribunal, evidence to the purpose of investigation for the obtainment of ulterior evidence, such as suffices in the first place for a ground to accusation, and in the next place for the obtainment of such evidence as shall suffice for conviction and punishment.
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Title: [[xxxviii. 24] 1822 July 15]Description: [xxxviii. 24] 1822 July 15 Constitut. Code Rationale Securities 5 Moral Counterforce Public Opinion Tribunal Evidence and Comments 22. or 1. Requisites for bringing into action the force of both Tribunals. 1. Matter of evidence. 2. Matter of comment. Evidence brings to view the individual not in question with the circumstances on which its effects, good and bad, on community's happiness depends. Comment, indication correct or incorrect, of the supposed or alledged effects of do. on do.: with or without the probability of the supposed act, and the supposed agent's supposed part in it. 23. or 2. By evidentiary matter understand - not only what contributes to conviction, but what by indication ever so forced, contributes to accusation. To the end of a suit not less necessary is commencement than continuation. 24. or 3. In so far as what a man has done, is or is thought to be detrimental to greatest happiness etc., it is his interest to keep both requisites suppressed. 25. or 4. Proportioned to 1. Magnitude of sinister benefit from the abuse. 2. Fear of punishment through divulgation will be the anxiety and effect to perpetuate such suppression. Proportioned to such anxiety is therefore the demonstrated enmity to human happiness. 26. or 5. Defamation is among the effects of every such indication: viz. of him to whom a pernicious act is imputed. To oppose defamation in the lump is therefore to call for the suppression of this security in the lump. 27. Hence every endeavour so to suppress defamation is confession of hostility to greatest happiness etc. 28. Proportioned to the hostility of the form of government and the practise │ │ to the greatest happiness are the exertions of course made by the Governors to deprive the governed of this security 29. In these endeavours, on the part of those whose power constitutes the legal sanction, to suppress the sole security against the abuses which to them are benefits, they are naturally joined by all others, who, having committed, or having it in contemplation to committ misdeeds in any shape, punishable, as such, by either sanction, fear appropriate evidence and comment. 30. Self contradictory is the proposition, I wish to see good government and good morals have place, and to see suppression of defamation have place. 31. Sole case in which, of defamation, though true, the effect is to diminish instead of encreasing general happiness - the mischief produced - not by the act, but by the disclosure of it. Included in this case are all those in which, by some error in judgement or affection, popular antipathy has been drawn upon the agent by an act not of itself detrimental to greatest happiness. Example.
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Title: [[clx. 348] 1822 July 12 Constitut]Description: [clx. 348] 1822 July 12 Constitut. Code Rationale Securities Counterforce 4 Legal 5 Moral Evidence necessity of Defamation necessity of One case there is and but one in which the effect of defamation, supposing the imputation conveyed by it true /misdeed charged by it really committed/ is - not to reduce but to encrease the quantity of happiness in the community. This is where the mischief produced is produced - not by the act itself, but by the disclosure of it. In this case are comprehended all those in which for want of sufficient maturity in the public judgment, or by reason /the influence/ of some sinister interest the sentiment of antipathy has in the breasts of the people considered as members of the Public-Opinion Tribunal turned itself against this or that act the nature of which is not upon the whole /balance is not/ of a pernicious nature Examples of this case are 1. In a community in which the public mind is infected with the disease of intolerance on the ground /in matters/ of religion indication of an act evidencing the entertaining an opinion contrary to that which is established or predominant 2. Indication of this or that eccentricity of the sexual /any sensual/ appetites /the sexual for example/ from /by/ which no pain in any assignable shape is produced any where. Here by the supposition by the act itself no pain no sensible evil is produced: but by the imputation /disclosure/ of it, evil to a vast /deplorable/ amount may be produced: by the antipathy though by the supposition groundless by the antipathy called forth by it into exercise, a whole life may be filled with bitterness /misery/. The real enemy to the happiness of the community is not he by whom the thus obnoxious act has been exercised, but he by whom the exercise of it /indication of the exercise of it/ has been afforded. The suffering being greater, the mischief is greater in the case where the act has been than in the case where it has not been really exercised. For he in whose instance the imputation has been groundless, has for his consolation that which is wanting to the other /has not./ 3. Indication of a breach of the marriage contract, on either party /side/, and in particular the female. Suppose the commission of it unknown, no pain is produced by it any where: the pleasure is pure. What then when committed ought it to remain exempt from punishment? Oh no. Why not? Even for this cause: namely that without the commission divulgation could not have place: and that by commission divulgation is always rendered but too probable.
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