date

1820 Oct. 12 Spanish liberticide measures
1820 Oct. 12 Spanish liberticide measures 8 §. 2. Press violation Reasons

against libel law

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

case/ of his finding to an amount adequate in quality and number/ persons able

and willing to assist him in repelling the imputation /allegation/ over and

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

in question rises /stands/ higher and higher in the scale of power. True it is

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

such to any given effect as such/ is essentially less than in the case of any

other person: in the one case the evil is less because in that case a man is

furnished with a remedy against it over and above any which has place in the

other case.
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  • Title: [1820 Oct 11 Spanish liberticide measures]
    Description: 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.
  • Title: [1820 Oct. 12 liberticide measures 11 §. 2]
    Description: 1820 Oct. 12 liberticide measures 11 §. 2. Press violation Reasons against

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    3. From the evil, be it what it may, supposing the assistance and support

    furnished to him by his situation more or less inadequate /insufficient/, the

    public functionary as such possesses to a certainty possesses before hand a

    compensation which is not possessed by the individual at large.

    So as /Let but/ his being in the situation in question be but the result of his

    own free choice, its being so is of itself a conclusive proof of his possessing

    this additional /peculiar[?]/ compensation, and the magnitude of the

    compensation will be as the value of the situation taken in all its elements

    /component parts/ money, power, factitious dignity natural reputation, and every

    thing else if there be any thing else that has its /a/ value, being taken into

    the account.

    To the case where his being in the situation in question is matter /the result/

    of compulsion and not of his own free choice, in such sort that there is

    sufficient reason for regarding the value of it as being nothing /0/ or below 0

    in his eyes – In /in/ this case it is manifest no such compensation it is

    evident as is supposed can it is evident have place. But even in this case /from

    the imputation/ though /howsoever injurious/ productive of injury to the

    individual/ so great is the good /benefit/ to the public, compared with the

    injury /evil/ to the individual, that so long /far/ as the good to the public

    requires the publicity of the imputation, the evil to the individual can not be

    great enough to require the suppression of it.
  • Title: [1820 Oct. 15 liberticide measures 1 §. 2]
    Description: 1820 Oct. 15 liberticide measures 1 §. 2. Press liberty violation

    Inserendumne?

    II. or 2. From /By/ the rank of any person struck at by the imputation, neither

    the punishment where punishment is requisite and proper nor the burthen of

    satisfaction where satisfaction is proper ought to receive any encrease.

    The reason has been already brought to view.

    1. By this circumstance independently of all compensation the evil to the

    individual is not encreased but diminished: diminished in proportion to his

    elevation in the scale of power and dignity: for, as above the higher his place

    is in that scale, the more abundant are his means of protection and defence.

    Inserendumne?

    {This is /Behold here/ one of the disadvantages attached to the monarchical form

    of government, the place in the scale of power and dignity being next to God’s,

    the atrocity of any offence against reputation is next to infinite: the demand

    for punishment is next to infinite: thence comes a correspondent endeavour to

    satisfy the demand: thence comes hatred on the part of those who see themselves

    exposed: thence demand for more punishment, as /for/ a defence against the

    hatred: thence again on the part of those on whom the application of the

    punishment depends comes reluctance, and consequent non-application of the

    punishment: thence comes debility and inefficiency of the law: and so on till

    that obsequiousness on one part by which power on the other part is constituted

    ceases.}