[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.