[xxxviii. 26]

1822 July 15.

Constitut. Code Rationale

Securities

5 Moral Counterforce

Public Opinion Tribunal

Evidence and Comments

41. Channels through which, almost exclusively, this counterforce is supplied, are -

1. Press at large.

2. Periodical Press.

To all virtue, to all happiness, does every man render himself an enemy, who contributes to lessen the net mass of benefit in relation to which they are channels of conveyance.

42. Means of lessening net benefit of Public Opinion Tribunal - its stock and channels of information included.

1. Blockading the channels.

2. Corrupting the information.

Say blockading and corrupting systems.

43. Blockading acts, by substraction: corrupting by addition.

But by substraction also, if partial, viz. in the sense in which partiality is injustice, corruption, thence deception may be effected: viz. by stopping what is supposed favorable to one side, while do. to the other is passed on.

44. Modes of blockading.

1. Licensing System.

2. Prosecution System.

Elementary operations of the Blockading System

1. Prohibition applied to every thing.

2. Permission applied to some things.

45. Disadvantages of simply prohibitive and punitive compared with licensing system.

1. Operation weak: effect uncertain.

Licensing employs in the first instance physical force: say seizing the impression of the work. Thus it operates on body: also on mind: viz. by intimidation: say fear of loss, by future similar works if prepared for publication: stopping the publication of one work already written, it prevents writing of unanswerable ones of the like tendency. The fear it employs, is the fear of uncompensated loss of time, labour, and expence.

3. It makes known to the whole community the evil it tries to produce in the shape of suppression of good: and this excites odium: licensing conceals it from every eye.

46. 4. The punishment, which it seeks to inflict, it holds up to view, and thus too excites odium. So, by the vexation and expence of prosecutions: in these, even the prosecutor shares.

By licensing, this special odium, as well as the vexation and expence is avoided.

47. By prosecution, punishment is employed, to produce the effect of prohibition.

1. If at Common Law, the subject is fictitious: as to the act, for which the punishment is sought to be inflicted, there has been none: as to future contingent similar ones, each man is left to imagine a prohibition, from the case in which he sees the punishment applied: i.e. by comparison of his contemplated work with the punished do.