Page:EB1911 - Volume 16.djvu/557

 civil actions, with the one important exception (now considerably modified) that the falsity of a libel is not in criminal law an essential element of the offence. If the matter alleged were in itself defamatory, the court would not permit inquiry into its truth. The sweeping application of this rule seems chiefly due to the indiscriminate use, in earlier cases, of a rule in Roman law which was only applicable to certain modes of publication, but has been supported by various reasons of general policy, and especially by the view that one main reason for punishing a libel was its tendency to provoke a breach of the peace.

An important dispute about the powers of the jury in cases of libel arose during the 19th 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 Lord 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. 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. There is no difficulty about the general application of this principle in criminal trials. If the crime is one which is inferred by law from certain facts, the jury are only concerned with these facts, and must accept the construction 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. Further, owing to the mode of procedure, the defendant was often punished before the question of law was determined. But, nevertheless, 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 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 the Libel Act 1792, by which the jury were entitled to give a general verdict on the whole matter put in issue.

Scots Law.—In Scots 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 competent 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) 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 Roman 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 veritas 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 conception of malice. The leading and almost only differences between the English and Scots 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 no remedy in Scotland even for the widest and most needless publication of offensive statements if only they are true.

American Law.—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 are represented by equivalent legislation in most American states.

See generally W. B. Odgers, Libel and Slander; Fraser, Law of Libel and Slander.

LIBELLATICI, the name given to a class of persons who, during the persecution of Decius, 250, evaded the consequences of their Christian belief by procuring documents (libelli) which certified that they had satisfied the authorities of their submission to the edict requiring them to offer incense or sacrifice to the imperial gods. As thirty-eight years had elapsed since the last period of persecution, the churches had become in many ways lax, and the number of those who failed to hold out under the persecution was very great. The procedure of the courts which had cognizance of the matter was, however, by no means strict, and the judges and subordinate officials were often not ill-disposed towards Christians, so that evasion was fairly easy. Many of those who could not hold out were able to secure certificates which gave them immunity from punishment without actually renouncing the faith, just as “parliamentary certificates” of conformity used to be given in England without any pretext of fact. It is to the persons who received such certificates that the name libellatici belonged (those who actually fulfilled the edict being called thurificati or sacrificati). To calculate their number would be impossible, but we know from the writings of Cyprian, Dionysius of Alexandria and other contemporaries, that they were a numerous class, and that they were to be found in Italy, in Egypt and in Africa, and among both clergy and laity. Archbishop Benson is probably right in thinking that “there was no systematic and regular procedure in the matter,” and that the libelli may have been of very different kinds. They must, however, as a general rule, have consisted of a certificate from the authorities to the effect that the accused person had satisfied them. [The name libellus has also been applied to another kind of document—to the letters given by confessors, or by those who were about to suffer martyrdom, to persons who had fallen, to be used to secure forgiveness for them from the authorities of the Church. With such libelli we are not here concerned.] The subject has acquired a fresh interest from the fact that two of these actual libelli have been recovered, in 1893 and 1894 respectively, both from Egypt; one is now in the Brugsch Pasha collection in the Berlin Museum; the other is in the collection of papyri belonging to the Archduke Rainer. The former is on a papyrus leaf about