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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.
Similar Items
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Title: [[xxxviii. 25] 1822. July 15]Description: [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: [[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: [[xxxviii. 28] 1822 July 21]Description: [xxxviii. 28] 1822 July 21 Constitut. Code Rationale Securities Moral Counterforce Public Opinion Tribunal Evidence and Comments ? Defamation no grounds for suppression 55 or 1. Of private defamation the evil is manifest: but under it lies unperceived good. 1. Defamation imputation false and mendacious effects of the 1st. order are less evil than where it is true: a man suffers less from the imputation, when groundless than when true. 2. The effect of the 2d. order are all good: viz. danger and belief of danger on the part of men under temptation to do the evil thus falsely imputed. What no one can fail to see is that by being guilty a man is more exposed to the imputation than if not guilty Inducements equal in both cases, no defamer but could find it more convenient to impute guilt where it existed than where it did not. 56 or 2. Note that currency knowingly given to imputations known to be groundless is justifiable: or antipathy to the imputer ill grounded: or the punishing of him, on sufficient proof, improper. 57 or 3. All that is meant is imputations, grounded and ungrounded together, ought not to be suppressed for the more effectual suppression of ungrounded ones. The Public Tribunal should not be suppressed for the mere suppression of the false information conveyed to it. 58 or 4. Suffering being greater where a man is guilty than where not, stronger of course will be the marks of uneasiness and the desire to effect suppression and exercise vengeance. 59 or 5. Vexation in case of non-guiltiness are 1. Fear of loss of reputation. 2. Expence of time and labour in calling on the calumniator for proofs. 3. Do. by eventual defence, by a counter argument, with or without counter evidence. For comfort, consciousness of innocence: thence assurance of ultimate acquittal. 60 or 6. Vexation in case of guiltiness. 1. Fear of loss of reputation much greater. 2. Expence of time and labour in the endeavour to exhibit counter argument with or without counter evidence, accompanied with fainter hope, or saved by despair of success. Discomfort, consciousness of guilt: thence assurance of ultimate condemnation.
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