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[clx. 349]
1822 July 12
Constitut. Code Rationale
Securitites Counterforce
4 Legal
5 Moral
Evidence necessity of?
Defamation necessity of
They may be considered as crying out - I am a scoundrel! etc.
Those who cry out against what they call the licentiousness of the press, as if it were so much uncompensated evil, for /against/ which compleat suppression would be an appropriate and innoxious remedy /cure/ might with much more reason cry out against the pure and simple abolition of all punishment without distinction and in particular against all punishment at the hands of the legal sanction and the tribunals by which the force of that sanction is applied: for in no other form, at once so gentle and so efficient and in particular in no form of legal punishment could punishment be employed in the repression of any thing that has ever been characterized by the names of crime or vice by the name of vice.
Punishment as applied by the legal tribunals - punishment applied under the name of punishment attaches to such mischievous /evil/ acts alone the mischief of which has place as well in a shape sufficiently detrimental, and /as/ in a quantity sufficiently great to warrant the application of evil in the shape and in the quality in which it is so denominated /the denomination of punishment is in common use/. Punishment as applied by the Public Opinion, applied as it is in effect without the name, attaches itself to mischief in all shapes in which the hand of man can without special and sufficient justification be instrumental to the production of it.
Applied by the legal tribunal, punishment is not only thus narrow in its application /applicability/ and thence in its use: but exposed continually exposed to the danger of running into excess: excess from /such/ the danger of which the punishment which the Public-Opinion Tribunal makes application of is altogether exempt and free.
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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: [[clx. 351] 1822 July 14 Constitut]Description: [clx. 351] 1822 July 14 Constitut. Code Rationale Securities Counterforces 4 Legal Responsibility 5. Moral Responsibility Evidence etc its necessity Against such misdeeds, whether by the state of the law put or not put upon the footing of crime, against such misdeeds in the government /governors/ their instruments, favorites and dependents their misdoers /authors/ or protectors, the legal sanction with the corresponding legal tribunals /judicatories/ afford /refuse/ of course no /all/ redress: against all such misdeeds whatsoever redress if any is afforded, it is by the popular or moral sanction with its Public-Opinion Tribunal that it must be afforded. To /An/ endeavour whatsoever be the means to destroy or to diminish the force of the Public Opinion Tribunal /weaken this counterforce/ is therefore an endeavour to give encrease to misrule with the misery of which it is productive to give encrease to injury in all shapes at the hands of individuals with the misery in all shapes of which it is productive - an endeavour to diminish the quantity of happiness in the community to encrease the quantity of suffering in the community. But, except what regards the quantity of the happiness or misery /suffering/ in question this is the worst that can be said of any the foulest crime imaginable whatsoever it be that experience observation or imagination can hold up to view
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Title: [[clx. 344] 1822 July 11 Constitut]Description: [clx. 344] 1822 July 11 Constitut. Code Rationale Securities Counterforce 4 Legal responsibility 5. Moral responsibility Moral Responsibility Thus stands the matter in regard to legal responsibility responsibility to punishment at the hands of the possessors /administrators/ of the power of the legal sanction. Look now to moral responsibility - responsibility to the purpose of eventual exposure to the punitive power of the Public Opinion Tribunal, administrators /possessors/ of the force and influence of the popular or say moral sanction: the power that is to say /and in particular the power/ of the democratical sanction of that same invisible yet not the less efficiently /effectively/ operative tribunal: a tribunal like the Vehmic invisible; but, like that not the less operative. To responsibility /punishment/ to not altogether ineffective responsibility in this shape /punishment in a certain shape/, not only in representative democracy the possessors but even in an absolute Monarchy, the possessor of the supreme operative power are capable of being responsible /standing exposed/. In fact In this shape in this sense is /are/ the most compleatly absolute Monarchy the Monarch is always to a certain degree responsible, and feels himself so to be: though in some Monarchies at some times so faint /feeble/ has /such has been the feebleness of/ this responsibility been in the character of a counterforce to the powers of government in the highest grade, that the effect of it in respect of a cause of mitigation to the evils of misrule - of depredation and oppression - in experience has hardly been perceptible. has seldom in any determinate degree or shape been perceptible.
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