[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.