The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-19

The punishment upon conviction for libsl In
our State h fine not exceeding $3.50, or npnson,
imprisonment. ar S, 697). This Is the repara;;
ton to the public, which the Legislature mas deemed
sufficient for the yindcstion Of public justice. And
that offence which is thus punished V toe tendency
Il Hinck., Pl. @. IS, Kent, ~.
This tendency is 20 essentially the ground OF TIE
criminal prosecution, that 1t lay at the roc! o. the
rule 90 long prevalent in our own country mat the
truth upon an Indictment for Q libel ccdd not be
given In evidence. (The People w. CIosvell John.
Gas. 392, Kent, 1877. Whether true or false, the
danger 70 the pesce Of the country was the same.
When, then, the terms vindictive damages, or
action for libel, they mean, in. my opinion,
the atonement which the Law demands shall
be made to the hbeled party by the offender, and
n T. sud ;Sction for the
individual, mot for provoking him 70 break the
peace.
Il would be Objectionable, in this view of the
Ss that s Interest,": Of 70 so sS Gsausa .Ss
fendant's punishment, or that they could consider
the offence to the 6tste a. reason for Increasing
the damages. 1t must be admitted that this idea
has, in some cases, been loosely and partially pre-
scented. It does not belong to that idea Of the pun.
ishment now sought to be developed, which Is con-
sistent with the supp0siti0n either thai there Is
penalty on behalf Of the State or tina, such penalty
10 for another cause, and with different object.
The moment we admit of any exception to the
naked rule Of compensation, measured by an &C.
curafe or approximate computation of actual
pecunjary loss, we admit the idea Of repsratlon
for something indefinite, and the adjustment Of
which must be indefinite. It is stated that the Lord
Com missioner (Adam) OF Scotland the most ear.
nest advocate Of the most restricted rule-said, in
an action for defamation Of professional man,
"that the question Of damages must always include
both question OF less and sclatiuna." Quoted by
Mr.. Sedgwick, 465, ny The allowance Of any sum
for soiatinn 10 an allowance for something beyond
positive loss and for repsraton distinct ft3m resto-
paratlon from that Of punishment What 10 taken
rom the offender beyond what is lost aud can be
restored TO the party injured parskes Of the nature
But again, there is class of libel cases in which
the character and situation Of the person sssaed pre-
clude the possibility, not merely OF pecuniry loss,
but Of an injury to the reputation, or even wound
when he speaks Of the calumnies Of those whose
csnsure Is more to be desired than their praises and
Cicero had before declared: InUididm ui,tute par
tian., gteriom, non inu,dian', putarem. Gin Cat
When the justice OF the country Is invoked to
deal with hbeller In such case, on what ground
can sny damage be awarded but upon that Of
atonen ent for an attempted offence, and puniah-
ment as the absolute foundation and object Of the
verdict Civil astions for hhes must be abandoned,
and in cases where the just indignation Of an
honest community demands their enforcement, II
such principle must be surrendered.
With these views, have examined the leading
which are cited by Mr.. Sedgwick 10 his able
work upon damages, and in the comments Of Mr..
Greenleaf and Mr.. Metcaf upon them. A few others
Pss Feet Be .ddsS Ss Vi TqSas s.:: s'P s
vs.. Prad, Coxes n. j. Rep. 10; Trabrue vs..
Mays, Dana 1887 It appears to me that the great
body Of these authorities sanction the rule % /
have attempted to express it.
cur own Stale after the critical and ample examine
ton Of them by my associate. ! content myself
with adverting TO that of TiIotson vs. Ohset1a, In
the Albany R r. compaDy, in 1852 ia Bnbsur 4ss1,
and Tay lor vs. Church, in 1853 (Selden's Notes Of
Appeal Gases, July, 1853, p. SOY.
In 1908 Chief JUST o Spencer stated, "thst It
in vindiciive actions such as hbels, tina. they arc
to iDict damages tor examples sake, and by way Of
punish neBt TO the defendant" The rule thus
declare to have always prevailed before 1908, has
prevsiled ever since, and has been recognised, or
assumed TO exist, in . long series Of decisions
in our State. IL has become consecrsted - an en-
during maxim Of our laws. by perpetual tribute 70
its legal truth offered BY the ustrious judges Of our
the CT srge Of the Chief Justice Of this Court in the
press Mt cause. For myself feel that in wandering
nom it, should merit the admonition involved 10
the maxim Of Lord Coke: Qu0d novuns Jadicium
non dat jus nacuna, sed dsclaraf antiquum.
For these rasors, consider the refusal Of ths
Judge to charge the jury as he was requested In the
10Th exception to be unobjectionable, and his actual
CDbIB6 CcrIe u
A new trial must however, be granted on account
o. The admission Of the deposition Of Strakosch.
Judge Campbell next delivered his opinion, brief.
~ saying
concur with my associates that the absence Of
SIskofch was not satisfactorily proven and that his
deposition should rot have bsen admitted and that
on the right Of the jury to give punitive damages.
The Court have come to the decision thar in an &C.
ton Of this hind punitive damages may be given.
Cases were cited In the courts Of other States In
which 1t has been held that damages could not be
given to punish the defendant In civil a,tion; yet
there are decisions to the contrary in the courts of
this State, and, without saying what we would do
this we're an open question, we feel ourselves con-
cuded by the authorities.