date

1820 Oct 11 Spanish liberticide measures
1820 Oct 11 Spanish liberticide measures 2 §. 2. Press violation

In regard to offences of this description, an assumption I see generally if not

universally made is – that for some reason or other where the object of the

supposed injury is a person so situated the offence is more criminal, or to

substitute to this indeterminate expression the only determinate import that

lies at the bottom of it the punishment ought to be greater, than in the case of

an ordinary person not so situated: and under /within/ this assumption is

commonly included another that the higher in the scale of power the person is –

the severer ought the punishment to be: and that in this extraordinary case the

judicatory or the form of procedure, or both ought to be different from what

they are in the ordinary case.

My own opinion being /is on all these points/ the direct contrary. {I shall /It

is – that/ now refer it to you to judge whether} in the case of /where the

object/ a public functionary {there is not good reason for determining that} for

an offence of this description the punishment /infliction/ instead of /so far

from/ being heavier than in the case of a commoner /non-functionary/ ought not

to be so heavy: and that cases are not wanting in which while in the case of a

common person a burthen having the effect of punishment ought to be imposed, in

the case of a public functionary no burthen at all ought to be imposed, {either

in the name of} punishment or in the name of satisfaction or compensation ought

to be imposed.

In a word, my opinion is – {that} unless where the imputation, being specific

defamation, and not mere vituperation is false, and the falshood accompanied

either with self-consciousness or with inexcusable rashness – that with this one

exception in the case where the person struck at /affected/ by the imputation is

a public functionary, affected in respect of his situation as such, no burthen

either in the name of punishment or in the name of satisfaction for injury ought

to be imposed or imposable on any person concerned in conveying the imputation:

and that under /by/ an arrangement to this effect, coupled with the exclusion of

all previous censorship the liberty of the press would be established, and that

by any /every/ act of power exercised on or at the charge of any person so

concerned, the proper liberty of the press is violated.
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    III. or 3. In the case /situation/ of a functionary Where the person whose

    reputation is the object of the imputation is a public functionary in case of

    made juridical procedure whether for punishment or satisfaction in any other

    shape, neither should any different judicatory nor any different form of

    procedure be employed, other than what is employed in the case of a

    non-functionary – a private individual a person not in office.

    Reasons. In every case the object of judicature /of the system of procedure or

    adjective branch of the law/ is to pronounce right decision – decision

    conformable to the text of the law /substantive branch of the law/ if there is

    any text to it, or to what is feigned to be law, if there is no such text, and

    to that purpose to collect in the most apposite manner such evidence as the case

    happens to afford with relation to the facts and to draw right conclusions from

    that evidence. As this is the object in the one case, so is it in the other: the

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    For /By/ whatever reasons by which this identity of judicatory and procedure is

    prescribed in this case by the same, almost without exception /with scarce an

    exception besides that which is formed by military cases,/ it is prescribed in

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    of lawyers has given birth to judicatories and varieties of procedure, and

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    In these as in other cases that for strengthening of the government have been

    treated as criminal ones, the great object is the conviction and thence the

    punishment of /execution of the law upon/ those to whom the provision made of it

    has given the name of guilty: of the not guilty the example from punishment has

    been the minor object. So likewise has the decision of differences between

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    shapes in which the assistance employed is afforded.

    2. The evil that results from this liberty is misrule.

    It is less in the case where the object of the imputation is a public

    functionary than where he is a non-functionary /in the case of an individual at

    large/: it is less and less as the place of the functionary in question is

    higher and higher in the scale of power. Against the imputation whatever be its

    nature The public functionary as such is furnished with means of defence and

    protection over and above all those which the individual at large can have.

    If the imputation be specific as in case of defamation, charging him with

    /alledging the existence of / some specific act /matter of fact/ by which an

    evidence of his inaptitude /deficiency/ in respect of one or other of the three

    branches of appropriate official aptitude as above is demonstrated /indicated/,

    he has, for the finding of /his situation affords him such a probability /in his

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    above any that has place in the other case. This probability and the support and

    advantage afforded by it is greater and greater as the place of the functionary

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    that Having one common interest common to them all let the place of the person

    in question be the lowest in the scale, having a common interest common to them

    all /the whole number/, in all who have or look to have any share in the power,

    will a disposition more or less strenuous to concurr in yielding such support

    and assistance will have place. But the higher the person in question is in the

    scale of power, the greater the facility he will have /more efficient the /his/

    faculty/ of serving or disserving their respective particular interests and

    thus, while the common interest is the same, the /added to this will be a/

    particular interest more and more powerful and efficient the higher the place of

    the party affected by the imputation is in the scale of power: and thus in the

    case of a public functionary the evil from an imputation on his reputation /as

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    As whether in this advantageous /distinguished/ situation or not, any act

    tending to the prejudice of his /a man’s/ reputation in any point will naturally

    be apt to call forth his displeasure, so in the case of a man /on the part of a

    man/ by whom any such advantageous situation is occupied a natural object of his

    endeavours will be – to prevent and so far as that is not possible /endeavour

    fails/ to avenge every injury or supposed injury done or endeavoured to be done

    to him in that provoking /galling/ shape: and where power has not been wanting

    the death of the offender has very commonly been regarded as a means not too

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    The more consummate the inaptitude, and thence in case of criminality, the more

    intense and extensive the evil of which the /his/ criminal conduct has been

    productive, the greater the evil which the functionary has to apprehend from the

    disclosure of it, and thence the heavier the punishment with which it will be

    his endeavour to visit the offender to visit all persons concerned in the

    casting of the imputation the greater in a word the quantity of force /power/ in

    all shapes which it will be his interest and endeavour to employ towards the

    repression of it: in the case of an imputation not yet cast but apprehended,

    self-preservation will in proportion to the magnitude of his guilt be earnest in

    applying to this purpose the utmost quantity of force possible: in the case of

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