§ 7 enacts, That when on the trial of any indictment or information for the publication of a libel, under the plea of Not Guilty, evidence shall have been given which shall establish a presump tive case of publication against the de fendant by the act of any other person by his authority, it shall be competent to the defendant to prove that such publi cation was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part.
§ 8 enacts, That in the case of any indictment or information by a private prosecutor for the publication of any de famatory libel, if judgment be given for the defendant, he shall be entitled to recover from the prosecutor the costs that he has sustained by reason of such indictment or information ; and that upon a special plea of justification to such in dictment or information, if the issue be fond for the prosecutor, he shall be en titled to recover from the defendant the costs sustained by him by reason of such plea.
This act does not extend to Scotland, § 10. As it was doubted whether or not it did extend to Ireland, this act was extended to Ireland by 8 & 9 Vict. c. 75.
Defamation and libel were punished among the Romans. The oldest extant rule about defamation and libel is con tained in the fragments of the Twelve Tables,' which punished both slanderous words and libellous writings. (Cicero, De Repub., iv. 10.) The penalty was capital (in the Roman sense of that term), and it appears to have been death. Libel lous writings were generally denominated " famosa carmina" and " male carmine." in course of time the Praetorian Edict modified the old law, or probably it fell into disuse. The praetor allowed an action for slander which was against " boni mores " (Dig. 47, tit. 10, s. 15); and against " both mores " means, that which was disapproved of by the positive morality of the community and tended to bring infamy or odium on the person against whom it was directed. The tech nical word for this kind of" slander " was Convicium, which properly meant some thing said to a man's face that was injuri ous; but the commentators on the Edict laid it down that there might be Con vicium even if the person against whom it was directed was not present. Con vicium in fact was personal abuse which tended to damage a man and was said with circumstances of great publicity. But the Praetor's Edict extended to other cases, and allowed an action wherever a man had done or said anything which in jured a person's character. This general clause included libellous writings, and many other things, such as certain modes of soliciting women's chastity, and ad dressing them in obscene language. The penalty in all these was a sum of money assessed by Recuperatores as damages. Under the imperial government the term " liber famosus, " often occurs : it signifies any writing in prose or verse which tended to injure a man's character (ad infamiam alicujus). The offence
consisted in writing the libel, spreading it about or selling it, or in causing these things to be done maliciously (dolo malo) ; it made no difference whether the libel was anonymous or had a false name to it. The penalty was (according to some law, the name of which is not known) that the libeller, if convicted, became " in testabilis," that is, he could not make a will or be a witness to a will. (Dig. 28, tit. 1, s. 18.) A senaMsconsultum ex tended the penalties of this lex to cases where there was no writing, but only marks which were of a like tendency ; this must mean drawings ai.d caricatures, such as are now published in London. Everything therefore which tended to the " infamia" of a person, writings in prose or verse, and drawings, whether a man was mentioned or not mentioned, pro vided the person intended was clearly pointed at by such writings or drawing-6, were punishable offences ; and writer, draftsman, and all concerned were liable to the legal penalty.
This legislation seems to belong to the Imperial period, though it was not in tended to protect the emperor only. Au gustus commenced this legislation (Sueton. Octavian., 55), and probably his chief object was to protect himself. The Ro man Ciesars, like other high personages in modern times, were the objects of pasquinades and various rinds of com positions which were intended to satirize them and make them ridiculous. penalty of the law of Augustus is not certain ; but in later times various Senates consults increased the penalty to Deporta tion or perhaps only relegation. If the au thor of a Tiber famosus had been punished in a criminal prosecution (judicium publi cum), the injured person might still have his action, if he was mentioned by name in the libel. (Dig. 47, tit. 10, s. 6.) But if a man libelled a guilty person (no cens), it was considered equitable that he should not be subject to any legal penalty, " because the bad deeds of evil-doers ought to be known, and it was expedient that they should be known." Compare the 6 & 7 Vict. c. 96, § 6.
The " libri famosi," or " libelli famosi," of the Imperial period, signified snotty mous writings, which contained a charge against some person, and were either sent to the Cmsar or to some magistrate, or put in some place where they might be found, for the purpose of causing injury to the person accused. This is the only signification of the expression "libelli famosi," in the Theodosian and Justinian codes. Constantine the Great declared that such charges should not prejudice any person who was mentioned in them, and that such writing should be burnt when the author was unknown. If the author was discovered, he was punishable even if he could prove the truth of the matter contained in the writing. Other constitutions on the same subject were made after the time of Constantine.
(Rein, Das Criminalrecht der Romer.)