Page:The American Cyclopædia (1879) Volume X.djvu/401

 LIBEL 395 any person be mentioned if it be sufficiently obvious who is thus held up to public ridicule ; nor need it be given to the public, for a letter sent to but one person is publication. Again, if the defamation be published in a work of general circulation, as a newspaper, the writer, the editor, and the publisher are all and sev- erally liable ; and the editor and publisher are liable although they give the name of the writer, or even if the writer's name be appended to the article ; for if the law were otherwise, it would be easy to give publicity to any libel with impunity, merely by putting to it the name of some person who was not responsible in fact, because he had nothing to lose. Nor is it held to be a defence to the editor or publisher, that he did not know the libellous character or nature of the matter published. It is as much publication if the book or paper be given away as if it be sold ; and with every copy given or sold there is a repetition and renewal of the offence. It is doubtless of the essence of libel that malice enter into the act or motive ; but this may be either express malice or construc- tive malice ; that is, there may be direct proof of an actual malicious purpose in the words or act, or they may be such that the law will im- ply malice in the absence of proof, on the ground partly that no person could do such a thing if he were not malicious, and partly that the thing itself is so wrongful and mischievous, that the safety of society requires that the doer should be punished as if he were malicious, and that no one should be able to defend himself for doing so great a wrong by showing that it was done only through negligence or stupidity. As to the punishment, any person guilty of libel may be indicted for the offence, as a crime against the public, and if convicted punished accordingly. But the person defamed may also bring his action for damages and recover full compensation. The punishment for libel is fine and imprisonment. This is regulated by statute in some states, and in others rests on the common law, according to which libel is a misdemeanor. By the Roman civil law, the crime of libel was punished very severely. The twelve tables made it a capital offence. By the time of Augustus usage had so modified the law, that the punishment was only corpo- ral ; but Valentinian made it once more capi- tal, and extended the punishment of death to him who wrote or published the libel, or omit- ted the destroying or suppressing of it if he could do so. By a law of Alfred, the inventor of a public falsehood (publicum mendacium) was punished by the loss of his tongue, nor could he redeem his tongue for less than the price of his head. The laws of Greece as well as those of Rome made many distinctions in re- lation to the law of libel, some of which were very nice ; but they do not seem to have recog- nized that which has been for a long time the fundamental distinction, by the law of England and of this country, between published defama- tion or libel and merely spoken defamation, which, as we have seen, is only slander. The defence against libel has presented questions which were once of great public interest ; and if they are less so now, it is only because they are now quite well settled, and the law in re- spect to them stands on a basis which no one is disposed to disturb. The earliest question in point of time, and one of the most impor- tant in its character, which has arisen in the history of the law of libel, is in relation to the function of the jury as distinct from that of the court. In the last century there was an endeav- or in the English courts to confine the question before the jury to the mere publication of the words charged, leaving it for the court to say whether the words or thing published consti- tuted a libel. This was so held by the court of king's bench in several cases; notably in The King v. Woodfall, as the publisher of Ju- nius (5 Burrows, 2666) ; and finally in The King v. the Dean of St. Asaph (3 T. R., 428, in notes). The powerful and very eloquent speech of Ers- kine in this last case attracted very general at- tention to the subject ; and soon afterward the statute 32 George III., ch. 60 (1792), common- ly called Mr. Fox's libel act, provided that in every trial of an indictment or information for libel the court should give their opinion and direction to the jury on the whole matter at issue, as in other criminal cases. This placed the whole question before the jury, who might, if they saw fit, bring in a general verdict of not guilty, although they were satisfied that the ac- cused published the words alleged, and the court instructed them that these words constituted a libel. Still, it was thought that this question remained properly a question of law only. In 1803 the case of The People v. Croswell, for an alleged libel upon Thomas Jefferson, was tried before the supreme court of New York ; and the court being equally divided upon this question, an act was passed in 1805, going fur- ther than the English statute, and providing that on every trial of an indictment for libel the jury " shall have a right to determine the law and the fact, under the direction of the court, as in other criminal cases." This may now be regarded as the settled law in every part of the United States. Another question, next in time and not inferior in importance, is how far and under what limitations the truth of the words published is a defence against a criminal charge of libel. It is conceded that the truth is a good defence against a civil action for libel ; but the law is certainly not so upon the trial of an indictment for libel. It must be re- membered that a libel was regarded as a crime, or a public offence, because it endangered the public peace; and as an inference from this principle, the common law did undoubtedly re- fuse to permit the truth of the words spoken to be any defence against an indictment for libel. Sir Edward Coke (5 Co., 125) said : "The great- er appearance there is of truth in any malicious invective, so much the more provoking it is;" and Lord Mansfield only simplified and con-