date

1820 Oct. 15 liberticide measures 3 §. 2
1820 Oct. 15 liberticide measures 3 §. 2. Press liberty violated

Inserendumne.

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

end being the same, the means ought to be the same.

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

other cases.

But as in this instance the interest of rulers so in other instances the interest

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

thence to complication without end.

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

individual and individual. In causes of this latter description it has

accordingly been left to the lawyers to introduce complication almost without

stint: judicatories and forms of procedure abundantly diversified.
Similar Items
  • Title: [1820 Oct. 15 liberticide measures §. 2. Press]
    Description: 1820 Oct. 15 liberticide measures §. 2. Press liberty

    In the Anglo American United States the difference /diversity/ in question has

    no place. Of the absence of it however the cause is simply the not treating

    /forbearing to treat/ the imputation in the case in question on the footing of a

    crime: and thence to judicial enquiry in the mode employed in cases treated on

    the footing of criminal causes. When it was treated on the footing of a crime

    the mode of judicial enquiry was different in the case of a functionary from

    what it was and is in a case between individual and individual. For in regard to

    judicatory forms of procedure and rules of evidence, since the emancipation

    these for the most part continue to stand on the same footing as before it. The

    courage of those republicans has enabled them /sufficed/ to emancipate

    themselves from the tyranny /yoke/ of the English Monarch, but their good sense

    has not yet enabled them to emancipate themselves from the tyranny /less

    conspicuous yoke/ of the English lawyers, to whose sinister interests their own

    lawyers are worthy successors.
  • 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: [[094-468v] 6 March 1808 on]
    Description: [094-468v]

    6 March 1808

    on L d Eldon's Bill

    Note

    Letter V

    '.3. Reasons

    Ends of Justice

    Table of the Ends of Justice, /being the/ or legitimate and proper highest ends of judicature: to the attainment of which in the possible degree of perfection, the proceedings of all judicatories ought to be continually directed

    1. Ends of the first Order: being the pursuit of which is prescribed by consideration of immediate /direct/ utility - utility not depending on the subservience of these to any other ends.

    Postpone

    The pursuit of these ends falls /lies/ within the competence /functions/ of judicatories of all stages. vis. as well appellate /of appellate jurisdiction/ (in any numbers above another, as if immediate:

    1. End the 1 st. the direct ends of justice.

    1. Direct end. Positive denomination Rectitude of decision. viz. in the case where the decision, any /a/ right decision, will operate in favour of the plaintiff's side of the cause.

    Negative denomination avoidance of misdecision. to the prejudice of the plaintiff's side: misdecision to the prejudice of the plaintiff's Side is the evil correspondent and opposite to this first and direct end of justice.

    That part of the body of the law /whole body of the law/ - the hour[?] of which constitutes to this purpose the standard of rectitude as the reason or substantive branch: the branch with which /reference to/ the system of judicial procedure is the adjective branch. So far as the rule of action has been invested with the form of real law, i.e. statutory sanctions /(improperly/ called written) law, it is of the text of the real law that the standard of rectitude is /what must to this purpose be considered as/ all along composed. Where it /the rule of action as yet/ remains in the form of imaginary law viz. jurisprudential improperly called unwritten and uncharacteristically called common law, law which not having any determinate assemblage of words belonging to it, has therefore no other than an imaginary and fictitious existence, the standard of rectitude is of course /necessarily/ imaginary: it is composed of the supposed purport of a set of regulations which in fact have, never been made. In this case, these[?] being no real standard of rectitude, neither rectitude of decision nor misdecision, can in strictness of speech be said to have place.