JB_160_361.xml

Title: [[clx. 361] 1822 July 25 Constitut]

Description: [clx. 361]

1822 July 25

Constitut. Code Rationale

Securities

5 Moral Counterforce

Public Opinion Tribunal

Evidence etc

A circumstance which has a natural tendency to provoke falshood and through falshood, injury evil to the prejudice of the government by which the restraint /restriction/ is imposed, is the resentment which the restriction itself imposes: a resentment than which nothing can in any case be better grounded or more just. Where oppression is exercised and there is no other remedy, no other defence against it is afforded by the nature of the case, falshood if not justifiable is at any rate comparatively excusable. Of every such restriction the effect and object is to secure efficiency and impunity to oppression and depredation: to oppression in every shape, the worst shapes imaginable not excepted. From no course that can be taken by the endeavour to put an end to such an instrument of oppression can any evil be produced comparable /equal/ to the evil included /produced/ by the application of this instrument of oppression, if the application be effective.

To the encountering of such endeavours by appropriate falshood the grand objection is /are in general/ that it will be unnecessary /needless/: for seldom are they emplyed but for the purpose of concealing enormities, the correct statement of which would suffice for the infamizing of the rulers /oppressors/ without the addition of any thing that is not true: and that, in proportion as the falshood comes to be discovered, the discovery casts reproach upon the heads of those concerned in the propagation of it, and discredit upon such reproachful imputations as are true.

2. Another objection is that by one falshood /false report/ detected and brought home to the author or any person concerned in the dissemination of it, while conscious of the falshood his own reputation is /may be/ so damaged, that from his mouth or pen what is true will not be taken for such.

JB_160_359.xml

Title: [[clx. 359] 1822 July 25 Constitut]

Description: [clx. 359]

1822 July 25

Constitut. Code Rationale

Securities

5 Moral Counterforce

Public Opinion Tribunal

Evidence etc

J.Bs cure to prevent secret suppression by Editors' veto

Defamation to the prejudice of ruling functionaries as such

Among the consequences of the restrictions imposed in the ordinary form on the press one is the efficiency thus given to false reports in their most mischievous shape: false and mischievous reports as such, whosoever may be the parties on whom the evil produced by them falls

In the first place let the situation be that of the ruling functionaries, and in particular those of the highest degree /rank/ in the scale of subordination. Defamation in the written shape it is possible to keep suppressed. Defamation to the same effect in an oral shape it is not possible to keep suppressed. You may keep a watch upon all presses: you can not keep a watch upon all tongues. When it is in a printed shape it is in a determinate shape: and whatever be the shape of it in other respects being in a determinate and that an enduring shape, any one who is /feels/ disposed to make answer to it, knows what it is he answers, and where to find it. In whatever shape it first makes its appearance, in that shape it remains it can not by the author or by the adopter be altered from shape to shape in a manner repugnant /contrary/ to truth and justice, just as occasion calls. It may be met and it may opposed in whatsoever manner is best adapted to the nature of it: is it in any way false? it may be opposed by simple denial: it may be opposed by the statement of the opposite truth: is it not only false but improbable? the arguments demonstrative of the improbability may be opposed to it: is it injurious is it mischievous? the mischievousness of it may be exposed /laid open to view/, and shame /reproach/ proportioned to the evil be poured down upon the head of the author and his accomplices, or prepared and kept in readiness to be poured down upon them in proportion as they are discovered. /presented to view./

JB_045_471.xml

Title: [22 Sept. 1803 Evidence Instructions]

Description: 22 Sept. 1803

Evidence

Instructions

Considerations

Extraction bad

1. Causa alia

1. First case of suspicious evidence, the suspicion arising from its having been extracted in the course of another cause, between other parties.

The ground of distrust /infirmity/ here arises from this circumstance, viz: that the party against whom the evidence /testimony/ is produced had no opportunity of encountering it by other evidence.

This ground will be stronger or weaker according to several circumstances.

1. It may be that the party against whom the evidence was produced in the prior cause had exactly the same interest, or what comes to the same thing an interest equally strong to encounter it to do what was in his power to encounter it, as the party against whom it is produced in the principal cause /case upon the carpet/. And though the stake should not be so great, yet if in the prior cause the interest was adequate, and the means adequate, i:e: if in the joint considerations of delay vexation and expense there was nothing that was capable of /of a nature to/ deterring or disabling the party from inconsistency, the evidence, from producing the opposite evidence /counter evidence/ (the witnesses whether to the same fact or to ulterior fact) necessary to the purpose, in this though the interest itself were less strong, the effect of it upon the conduct of the party in question and thence upon the fate of the cause would not naturally /in general/ be materially different.

In this case the only infirmity attending the extraneous evidence with reference to the purpose of the principal suit is what results from that circumstance - viz: that a man can not naturally /in general/ have the same confidence in the exertion of another as he has in his own. To the party it will accordingly appear /be apt/ that if in the prior cause the inconsistency of the evidence had fallen to his share instead of that of the actual party in that cause - viz: the party against whom it was produced in that cause, his exertions might have been attended with more success. Be this as it may /At any rate/, such is the observation which he will naturally be disposed to bring forward, as an argument against the competency or the credit of the extraneous evidence. But what weight is due to the observation will not with the judge of fact to determine, consideration had of the individual circumstances of the principal case.

In this case it is supposed /the supposition/ that in the principal case the means of encountering the extraneous evidence have been carried off by death or what is tantamount to death: for if not, the case affords no reason why it /the evidence/ should not be permitted to be encountered: just as it might have been encountered if exhibited in the principal cause in the first instance without having ever been exhibited in any prior cause.