[clx. 366]

1822 July 9

Constitut. Code Rationale

Securities

Public Opinion Tribunal

Defamation no

ground for suppressing

it or depriving it of Evidence

Add Suppression of true instruction by the suppression of every thing obtainable in the character /[...?]/ of former times

? Diffusion of unjust defamation no sufficient reason for diminishing the censorial power of the Public Opinion Tribunal by restrictions on the press.

In the case of private defamation the mischief stares every one in the face. But along with it is mixt much good and to this good it is not customary for [...?] /men/ to appear sensible /men do not in general seem sensible/

To take the strongest case - the case in which if in any the evil would appear /be/ pure - the case where the misconduct imputed is by the imputer known not to have had place: the imputation in a word known to be /have been/ knowingly and wilfully false Here the effects of the first order, the uneasiness experienced by the individual to whom the conduct /misconduct/ is imputed, are evil: the effects of the 2d order, the apprehension excited in other persons at large - the apprehension of being made sufferers by similar [...?] from the same or other sources, are also evil But by the contemplation of the evil suffered in these two ways by groundless imputation, the attention of men is directed to and the more firmly fixed upon the like suffering as being more or less likely to be produced by true imputations: and, in this way accordingly addition is made to these fears - fears of punishment at the hands of the Public Opinion Tribunal - by which misconduct in general misconduct in most of its shapes is repressed: for that which is too obvious and too certain and too obvious to pass unnoticed is that by being guilty of misconduct in any shape a man is in a greater degree exposed to disrepute in respect of it than he would be if innocent. A man if he knew of an article of misconduct of which his intended victim had been really guilty proofs of his guilt more or less satisfactory being in existence would never think of preferring a false /ungrounded/ accusation in any shape to that same well grounded.

Not that currency knowingly allowed to false and unjust imputation are in any degree as such conducive and necessary to the repression of the misconduct that would have had place had the imputation been well grounded

Not that the antipathy against inventor and common circulator of such false imputation is not well grounded: not that they ought not to be subjected to legal punishment in so far as sufficient proof can be obtained.

All that is meant is - that all imputations grounded and ungrounded together ought to be suppressed without distinction, for the more effectual suppression of ungrounded ones. The Public-Opinion Tribunal with its useful effects ought not to be suppressed for the single benefit of more effectually preventing the pernicious ones.