date

[clx. 367] 1822 July 9 Constitut
[clx. 367]

1822 July 9

Constitut. Code Rationale

Securities

Public Opinion Tribunal

Defamation no ground

for suppression etc

That which a man in whose instance an /the/ imputation is false, is as nothing /little/ in comparison of what the man suffers in whose instance the same imputation is true.

Accordingly the marks of vexation exhibited will naturally be in the same proportion: the intensity of the desire manifested for suppression and vengeance

To see imputed to him a misdeed by which in proportion as his having committed it is believed, the esteem and respect that would otherwise be entertained /felt/ for him will be diminished, is doubtless an uneasy sight: a sight productive of uneasiness proportioned to the degree in which the diminution of respect will be produced if the imputation be believed to be true, and the extent to which such belief has place.

There will be in any case the trouble of calling upon the defamer for his proofs: and if it be a case in which the circumstances admitt of the defamers giving an air of probability to the charge, viz. by means of circumstantial evidence, the trouble of encountering the probative force of such circumstantial evidence by arguments, and counter evidence or both. Note however at bottom[?] of all this trouble will remain for consolation the consciousness of innocence

Look now to the case of him in whose instance the imputation is true.
Similar Items
  • Title: [[clx. 347] 1822 July 12 Constitut]
    Description: [clx. 347]

    1822 July 12

    Constitut. Code Rationale

    Securities Counterforce

    4. Legal

    5. Moral

    Evidence etc necessity of

    Defamation necessity of

    To save himself from being restrained in the commission of one evil act he renders himself an accomplice in /accessary to/ all others

    Of every such indication - and of every such comment - the effect or tendency is defamation: defamation with reference to the party to whom the alleged pernicious act whatsoever it be is thereby imputed. To oppose defamation as such to oppose without exception or discrimination every act to which the term defamation can with propriety be applied is to act as an accomplice to all crimes as an instrument of all mischief of all misery, as above

    Every such act is therefore a virtual confession of such complicity: of such hostility to the happiness of the greatest number

    In the sinister interest by which they are engaged /led/ in the endeavour to effect such suppression, functionaries engaged in giving execution and effect to the acts of a bad government and functionaries engaged in misdeeds for their own benefit in disobedience to the good acts of a good government are naturally joined by individuals concerned or meaning to be concerned in such pernicious acts to the repression of which the power of the legal sanction is not applicable.

    Proportioned every where to the hostility of the form of government and of the practice under it to the greatest happiness of the greatest number will of course be the exertions made by the Governors to deprive the governed of this security to keep the governed for ever deprived of this their only security: the only security which the nature of the case admitts of.

    To profess to be a supporter either of good government or of good morals and at the same time to profess to be desirous of seeing defamation suppressed or even restricted in the /a/ case in which the imputation conveyed by it is true, is little less than a contradiction in terms: put the two branches of it together the desire is a desire to see the same thing be and not be at the same place and the same time - a desire that the same thing shall and shall not have place at the same time.
  • 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.
  • Title: [[clx. 348] 1822 July 12 Constitut]
    Description: [clx. 348]

    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.