Page:Encyclopædia Britannica, Ninth Edition, v. 14.djvu/527

L I B L I B 507 view that one main reason for punishing a libel was its tendency to provoke a breach of the peace. The same view has occasioned a difference in the publication required in civil and criminal actions. It is enough in criminal law that the libel has bsen published to the party against whom it is directed, if it is averred that it is intended or calculated to produce a breach of the peace. Important alterations, however, have been introduced into this branch of the law by G & 7 Viet. c. 96. By that Act any person who maliciously publishes a defamatory libel may be punished by fine or imprisonment or both, the imprisonment not to exceed one year. Any person maliciously publishing a defamatory libel, knowing the same to be false, is liable to fine and imprisonment for two years. In every case the truth of the matters charged may be inquired into if it be pleaded, but the truth does not amount to a defence unless it is also proved that the publication was for the public benefit ; and if, after such plea, the defendant is convicted, it is competent to the court to consider whether the guilt of the defendant is mitigated or aggravated by the plea, and the evidence given in relation to it. By the same Act a defendant is protected from publication of libels without his knowledge, authority, or consent, if the publication did not arise from the want of due care and caution on his part. The court are further authorized to award costs to the defendant in any information or indict ment at the instance of a private prosecutor. An important dispute about the powers of the jury in cases of libel arose during last century in connexion with some well known trials for seditious libels. The point is familiar to readers of Macaulay in connexion with the trial of the seven bishops, but the cases in which it was brought most prominently forward, and which led to its final settlement, were those against Woodfall (the printer of Junius), Wilkes, and others, and especially the case against Shipley, the dean of St Asaph (21 St. Tr. 925), in which the question was fought by Mr Erskine with extraordinary energy and ability. The controversy turned upon the question whether the jury were to be strictly confined to matters of fact which required to be proved by evidence, or whether in every case they were entitled to form their own opinion upon the libellous character of the publication and the intention of the author. There could be no doubt of course that the jury, if they pleased, had it in their power to return a general verdict of guilty or not guilty, but both in theory and practice they were subject in law to the directions of the court, and had to be informed by it as to what they were to take into consideration in determining upon their verdict (see JURY). There is no difficulty about the general application of this principle in criminal trials. In a case of murder, for example, the judge directs the jury that if they are satisfied the accused did so and so they ought to find him guilty. He directs them, not merely as to the definition of the crime, but as to the particular facts which fall within that definition. If the crime is one which is inferred by law from certain facts, they are only concerned with these facts, and must accept the construction which is put upon them by law. Applying these principles to the case of libel, juries were directed that it was for the court to determine whether the publication fell within the definition of libel, and whether the case was one in which malice was to be inferred by construction of law. If the case were one in which malice was inferred by law, the only facts left to the jury were the fact of publication and the meaning averred by innuendoes ; they could not go into the question of intention, unless the case were one of privilege, in which express malice had to be proved. In general principle, therefore, the decisions of the court were in accordance with the ordinary principles of criminal law. But there were undoubtedly some peculiarities in the case of libel. The sense of words, the inferences to be drawn from them, and the effect which they produce are not so easily defined as gross matters of fact. They seem to belong to those cases in which the impression made upon a jury is more to be trusted than the decision of a judge. And further, owing to the mode of procedure, the defendant was often punished before the question of law was determined. But neverthe less the question would scarcely have been raised had the libels related merely to private matters. The real ground of dispute was the liberty to be accorded to political discussion. Had the judges taken as wide a view of privilege in discussing matters of public interest as they do now, the question could scarcely have arisen ; for Erskine s whole contention really amounted to this, that the jury were entitled to take into consideration the good or bad intent of the authors, which is precisely the question which would now be put before them in any matter which concerned the public. But at that time the notion of a special privilege attaching to political discussion had scarcely arisen, or was at least confined within very narrow limits, and the cause of free political discussion seemed to be more safely entrusted to juries than to courts. The question was finally settled by Mr Fox s Libel Act (32 Geo. III. c, 60), by which the jury were entitled to give a general verdict on the whole matter put in issue. Scotch Law. In Scotch law there were originally three remedies for defamation. It might be prosecuted by or with the concurrence of the lord advocate before the Court of Justiciary ; or, secondly, a criminal remedy might be obtained in the commissary (ecclesiastical) courts, which originally dealt with the defender by public retractation or penance, but subsequently made use of fines payable to their own procurator or to the party injured, these latter being regarded as solatium to his feelings ; or, lastly, an action of damages was com petent before the Court of Session, which was strictly civil in its character, and aimed at the reparation of patrimonial loss. The first remedy has fallen into disuse ; the second and third (the commissary courts being now abolished) became mixed up together, and are represented by the present action for damages or solatium. Originally the action before the Court of Session was strictly for damages founded, not upon the animus injuriandi, but upon culpa, and could be defended by proving the truth of the statements. But in time the Court of Session began to assume the original jurisdiction of the commissary courts, and entertained actions for solatium in which the animus injuriandi was a necessary element, and to which, as in Eoman law, the truth was not necessarily a defence. Ultimately the two actions got very much confused. We find continual disputes as to the necessity for the, animus injuriandi and the applicability of the plea of vcritas convicii, which arose from the fact that the courts were not always conscious that they were dealing with two actions, to one of which these notions were applicable, and to the other not. On the introduction of the jury court, presided over by an English lawyer, it was quite natural that he, finding no very clear distinction maintained between damage and solatium, applied the English plea of truth as a justification to every case, and retained the animus injuriandi both in ordinary cases and cases of privilege in the same shape as the English con ception of malice. The leading and almost only differences between the English and Scotch law now are that the latter makes no essential distinction between oral and written defamation, that it practically gives an action for every case of defamation oral or written upon which in England a civil action might be maintained for libel, and that it possesses no criminal remedy. In consequence of the latter defect and the indiscriminate application of the plea of veritas to every case both of damages and solatium, there appears to be at present no remedy in Scotland even for the widest and most needless publication of offensive statements if only they are true. American Law. In this as in so many other departments the American law scarcely if at all differs from that of England. In so far indeed as the common law is concerned, they may be said to be substantially identical. The principal statutes which have altered the English criminal law, such as Mr Fox s Act, and 6 & 7 Viet. c. 96, are also represented by equivalent legislation in most American States. (A. GI.) LIBER AND LIBER A, among the Romans, were a pair of deities, male and female, in whose worship two very different phases exist side by side. In the country feast of the vintage, and the city festival of March 17th called