Criminal Libel

The ecclesiastical courts. After the Norman conquest of England, William I established church courts that sentenced to public penance those found guilty of the canon-law crime of saying or writing a false allegation. The sinner, wrapped in a white shroud, holding a lighted candle, and kneeling, would acknowledge his "false witness" in the presence of the priest and parish wardens and beg the pardon of the injured party (Eldredge, p. 5). While this remedy gave the injured party vindication, its primary focus was absolution of the sinner.

By the sixteenth century, the king's courts, in efforts to wrest power from the church, competed increasingly with ecclesiastical courts for jurisdiction over defamation cases. Development of a mercantile class more concerned with the monetary impact of a defamatory statement than with saving the offender's soul further accelerated replacement of church courts by civil courts.

The Star Chamber. The invention of the printing press created a set of circumstances that heightened fear of seditious libel. The ponderous political folio written for the learned and given limited circulation in manuscript form was succeeded by the easily reproduced political tract and fly sheet addressed to the multitude. Consequently, in the early seventeenth century the Court of the Star Chamber, a court established to affirm and protect royal authority, began to punish political libel as a breach of the peace. Any criticism that the court felt was capable of causing the public to hold the government in disrepute constituted an offense. Since any such libel was thought to undermine public peace or legitimate government, its truth or falsity was immaterial. In fact, "the greater the truth the greater the libel," since exposure of the truth was more likely to lead to the government's downfall or a breach of the peace than would false statements (Schofield, p. 516). To assure the conviction of governmental critics, all decisions of the Star Chamber were rendered, without aid of a jury, by officials of the very government being criticized. Guilt required no proof of any intent beyond intent to publish. Criminal libel, in essence, was a crime of strict liability.

To protect the public peace, the Star Chamber also recognized the libel of a private individual as deserving criminal punishment. It was feared that individual libels would provoke duels and family revenge, thus leading to bloodshed. A legal remedy was created to deter such behavior.

Development in the common law courts. In the late seventeenth century, after the abolition of the Star Chamber by Parliament, jurisdiction over criminal libel prosecutions was assumed by the common law courts. The law applied by the latter, however, was for the most part that earlier shaped in the Star Chamber. Typically, the legal system punishes criminally only the worst and most extreme forms of behavior but imposes civil damages on individuals for a wide range of less injurious conduct. The law of criminal libel reversed this norm. No tort cause of action exists for a libelous statement which is true, which libels only the dead, which is expressed only to the libeled individual, or which refers to a group so large that no individual member may justly feel tainted. In each of these situations, however, penalties for criminal libel existed at common law. The history of the Star Chamber, with its focus on preventing breaches of the peace and displays of disrespect toward the government, explains this aberration.

Assumption of jurisdiction over criminal libel by the common law courts nevertheless produced important consequences. Although prosecution for criminal libel remained a potent weapon of political oppression, the jury system developed as a curb on its abuse. Free-press proponents argued that the jury, in addition to finding fact, should decide the legal question of whether the writing constituted a libel. After a bitter struggle, this view was adopted by the Libel Act, 1792, 32 Geo. 3, c. 6o (Great Britain). Thereafter, by returning a verdict of not guilty, a jury could indicate indirectly its belief in the truth of the defamatory statement. Not until 1842, however, was evidence of truth expressly made admissible at trial in England (Libel Act, 1843, 6 & 7 Vict., c. 96, § 6 (Great Britain)).