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April 1809
Press. Ch. 2. Libel Law as it ought
§.3. Restrictions
Defamation
1
Here, as elsewhere abuse
of liberty ought to be
restrained as far as
may be without prejudice
to use.
Principles alone here
details, elsewhere.
p. 1.
2
1. Defamation of public
as of private men
should if false be
punishable. True alone
is of use. p. 1.
3
Remedy same as
for an individual.
Deft to exonerate himself
by proving the
charge true. If True
it is of use. p. 1.
4
No divulgation of
misconduct, when
mischief of the divulgation
is greater than do of
the misconduct. In
private life this has
place to considerable
extent: ex. gr. sexual
irregularities:
Secus in the conduct
of public men: reasons
the largeness of the
scale. p. 1.
5
In defamation distinction
material as
in other offences
1. Conciouness of Blame
2. Misconception
blameable
3. do blameless p. (a)
6
1. For consciousness
of blame viz. of falsehood,
punishment is
not apt to be excessive.
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§.3. Restrictions
Defamation
7
2. By misconception
though blameable, the
demand for punishment
is much reduced. The
fault to be repressed
is not any propensity
to do wrong; only a
want of care.
p. 2
8
3. By blamelessness misconception no
demand for punishment
is here created
for 1 It would be useless
2. mischievous; removing
or weakening the necessary
check p. 2
5(a)
(a) Romanicé dolus
Anglicé male fides
Romanicé culpa
Anglicé caret
Hence falsehood, when
temerarious is punished
either not at all, or
as wilful
Probable cause a justification
in case of public
functionaries: here, the
defamer is such
p. 2
9
Further reasons why
probable cause should
here exculpate.
1. Extraordinary difficulties
opposed to punishment
for delinquency in public
men. See below Ch. —
2. Public man has for
consolation under erroneous
imputation, office and
innocence.
The erroneous accuser,
no office; nor is the
compensation of innocence
here so clear or ample.
3. The suffering of the
non delinquent, he being
a public man, is not
thrown away. By
warning other public
men it helps to keep
alive their sense of responsibility.
10
Public man, prosecuting
for defamation, should be
examinable by defendant
as a witness
1. By his refusal to answer,
probable cause would be
proved.
2. If his delinquency be thus
proved so much the better,
the fault is doubly his own.
p. 4
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§.3. Restrictions
Defamation
11
II. Revilement — expression
of contempt or aversion:
its object, exciting them in
others.
Example R v Umon
Carr v Cobbet Carr v Hood
p. 5
12
Revilement an abuse
probabilizes not improbity
or incapacity. p. 5
13
Reason for punishing
it, in privatum pain
produced — vengeance (the
source of reciprocal pain)
excited. p. 5
14
In publicum, reasons not
so strong: publicum being
being prepared for it.
p. 5
15
Chief reason, lest publicus
be made callous to the
moral sanction. p. 15
16
Definition might here
separate use from abuses
[See below] p. 6
17
But punishment of
revilement in pub publicium
ought to be lenated:
option to convict the
say 3 months imprisonment,
duplicable
toties quoties
Reason 1 Danger of
deterring true defamation:
revilement being apt to
be mixt with it.
2. By sympathy with
prosecutor, passions of
Judge liable here
to be excited.
17(a)
Gloucester Gaol &c —
18
Separation impossible
Better leave revilement
(in publicum) unrestrained
than confound
defamation true as
well as well as false
and revilement under
unlimited punishment:
abuse of delinquency
small compared with
do of interdiction.
p. 6
19.
In caricaturas the
revilement is peculiarly
pregnant and conspicuous:
yet not
found mischievous. p. 6
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