After some controversy, it was settled that the jury, in a criminal prosecution for libel, must find not only the fact of publishing, but whether the matter in question be a libel or not (32 Geo. III., c. 60) ; but in a civil action the question whether the publication is or is not a libel is decided by the judge or court.
The punishment in a criminal prosecution may be fine and im prisonment; and upon a second conviction for publishing a blasphemous and seditious libel, the court may sentence the offender to banishment for any term it may think fit. (1 Geo. IV. c. 8.) The law of libel had been frequently complained of, and with some appearance of reason, particularly that part of it which prevented the defendant from giving evidence of the truth of the libel in justification when subjected to a criminal prosecution. Almost the only reason, if reason it can be called, alleged in favour of the old law, the one already alluded to, that the libel, whether true or false, equally tends to a breach of the peace; or, as it has beep somewhat whimsically said, the being true make* the libel more likely to produce a breach of the peace. Lord 31ensfield, indeed, from the bench has said, " the greater the truth, the greater the libel." After much discussion had taken place upon this subject, the statute 6 & 7 Vict., c. 96, was passed, which enables the defendant, in pleading to an indictment for a libel, to allege the truth of the matters charged, and that it was for the public benefit that they should be publishetL The truth of the libel may then be inquired into at the trial, but does not amount to a defence unless the publication was for the public benefit. if, after such a plea, the defendant is convicted, the court may, in pronouncing sentence, con sider whether the guilt of the defendant is aggravated or mitigated by the plea.
By the :Name statute, a defendant is now enabled in an action for blander, or for libel (giving notice in writing to the plaintiff at the time of pleading, of his intention), to give in evidence, in mitigation of damages, that he made or offered an apology before action, or as soon afterwards as he had an opportunity, in case the action was commenced before. And in an action for a libel in a newspaper, or other periodical publication, the defendant may plead that it was inserted without malice, and without negligence, and that before action, or at the earliest opportunity afterwards, he inserted a full apology for it; or if the newspaper, &c., be ordinarily published at intervals exceeding one week, had offered to publish the apology in any newspaper, fic., to be selected by the plaintiff. Upon ',leading such a plea, the defendant nay pay into court a sum of money by way of amends for the injury austsined by the publication of the libel. (8 & 9 Viet. c. 75.) The printer of a libel is liable to prosecution as well as the writer, and so is the iyerson who sells it, even though ignorant of its contents.
By the 6 & 7 Win. IV., c. 76, n. 19, a Lill of discovery may be sup ported against the editor of a newspaper or other person concerned in the inibliastion ur interested in the property thereof, to compel a die elosnre of the name of the author of the libel, or of the name of any person connected with the publication against whom the party libelled may think proper to bring an action.
MI. Co...; Starkio and Holt, On Libc1 ; Solw., N. P.; Bac. Abr., tit. ' 1,1111':L, in Ecclesiastical Law. [EcetestarrteaL COUnT8.]