Weekly national intelligencer., 1863-02-26
DAMAGES FOR SURPRISING A NEWSPAPER

In August 1861 the "Jefersonan," weekly paper
published at Westchester. Penn yvania seized by
United States Marshal Mward and his assistants, under
an order from United States District Attorney Cofey
The paper was and the Office closed and it SO
remained suppressed and closed until the October follow
ing when in consequence of the District Attorney decn-
ing to proceed further with the information which ne had
fled charging William H. Hodgson, the proprietor OF the
paper with aiding and abettng the rebellion the pubca-
ton of the paper was resumed Subsequently Mr. Hodg
son instituted suit against Mr. Millward, the Mareha
and William Schuyler and John Jenkins his deputies, to
recover damages for Losses sustained by reason of such
seizure.
The case recently came on trial before Chief Justice
LowRIE of the Supreme Court Of Pennsylvania, at Phi
adelphia the plaintiff being represented by VIM Heed
and George W. Biddle, From Judge Lowre's charge to
the jury we extract as follows:
"The next important element in this cause is the al
legged fact that the act complained of authorized by
the President Of the United States and executed by
important Federal officers But this element loses all its
legal Importance when consider that all public func
tonaries in this land under iap and that from
the highest to the lowest above it, They as well as
we are under the constitution and laws OF the United
States and to support protect aud defend them
or take them their rule Of civil and olcla conduct
and they and to be judged by them In civil and
official conduct in all appropriate cases The acts OF the
President and Of his subordnaes are, therefore without
Constitution Of the laws made under it, and consistent
with it. He can make law that vest in him any
authority that protect those who obey his autho
rized orders. He would not claim that he could
sThe Federal and State constitutions place the Govern
ment under Just such restrictions these 1t tells the Gov
ernment how shall proceed in defending society and the
social organism against all the forms of violence disorder
and danger which society exposed 1t puts all its
fnctionaries under law, that they shall not invade
the order Of society by taking their forms and modes
of protecting it. When they act without law, they must
hafo he by
cy that demands their act be not so they are above
law and not under it. If they may rresponsiby declare
the existence Of the emergency and also the acts which
demands Of them them to them have neither Con-
stituton nor laws.
" Our Constitution was framed when the remembrance
of the excitements suspicious divisions dsoyaty and
OF the revolution yet fresh the minds of
our statesmen aud under the light all its experience and
they left gap in it to be supplied BY the fears or susp
cions Of excited times 1t still ufcient rule OF prac-
tce for our Government and it, better than any thing else,
embodes the settled and sober thought OF this people
When we depart from it expose ourselves to the rule
Of and to incacuabe divisions of opinion of coun-
sels and of action.
"Do the defendants show a warrant issued in proper
form by competent authority that shelters them from re
sponsbiity for the act done What the law requires in
order justify such act is written in the Constitution
article Of the amendments The right Of the people to
be secure in their persons, houses papers, and effects
against searches aud seizures shall not be
violated and no warrant shall issue but upon probable
canse supported by oath or affirmation and particularly
describing the place to be searched and the person
things TO be seized similar law is written all
State constitutions and it s simply the written expression
of the unwrtten or customary law of the people, known
to every body descended through long line OF ancestry
and of popular disturbances and recognised by body
times when quiet reason holds the control OF the pas
sioDs.
Anoher law is to be connected with this one in order
that it may be how such warrants are to issue il
also is written in the Constitution, where 1T vests all judi
cia power in the courts established by law, and requires
that no man shall be deprived of fe liberty property
except by due process Of law This makes the courts the
only authority whence process can issue for the trial
of rights wrongs Warrants properly issued by them
are shield TO the officer who exercises them. Warrants
Issued by Others have further authority than contain
ed in the emergency which they are founded If the
circumstanceshe pressing nature of the emergency
Justify the act they justify the warrant bat not otherwise
1t not usual call such orders warrants and they
not properly so called They merely orders Of supe
rior to a subordinate officer to do speeal duty which
usually he ought to do without such order.
when great confagraon or violent mob is raging,
or vessel is attempting transgress the laws
the laws Of and to escape there is no time for war
ans and the work must be done without them
But then it is always done unter respoDsib ty to law
through the courts Of Justice If the occasion and the law
of the land justify what done then the want Of war
rant is excused.
1--WE understand now the we have before The
defendants had such warrant required by the Con-
stitution 1t order Of request not issued by any
Judicial officer, and not founded the oath Of any
one preence that any such violent outrage
on social order had been committed and such pressing
and urgent emergency sted as justify the seizure with
There nothing in the act Of Congress OF the 9th Of
August 1861 that usfes it, 1t requires the President
in certain cases to certain property to be sezcd
conf seated aud condemned but this by due pro-
cess of law 1t is not be done by the President him
ef but BY due process Of law by the proper functona
ries and he that they do their duty These de-
PENDANTS unde TO do this act without warrant and
without any proper shown TO and therefore
they are mere tespase They trespassers from the
beginning the end and the first step IN the matter be-
ing unjused subsequent and unsuccessful proceeding
of
compensaton They would have been liable for a mali
ciou prosecution without probable cause, II the act had
been under writ apparently valid. The plaintiff Is ent
tied TO full compensation for all he has lost by this act
"Is the plaintiff entitled to exemplary damages1 Yes
in far their act was inspired by want0nness
bat exempla,y punitive damages usually al owed
rather for the moral than for the legal wrong that
panes such acts For the legal wrong is the
measure Of redress For the moral wrong the reckless
of the act the persons malice with which IT Is done,
the violence and outrage attending it, for this you are
thorized to allow exemplary damages such reason
able under all the circumstances You Judge how far
the defendants guilty Of any moral wrong beyond the
leRa wrong 10 the act complained Of
IL the law Of the land the sober and abiding thought
of the whole people, that lives through oil disorders and
exctemens and survives and judges them althe great
ocean under current OF thought which waves and storms
and tempests do not reachthen what have said the
law still know Of other law for this This ia
the law and the plaintiff is entitled to damages-compen-
satve If the defendants acted in good faith and under
mere mistake Of authority and exemplary II there
any bad faith recklessnefs and oppression intended in
their acts"
The Jury returned verdict in favor Of plaintiff for S5l2
IotaI;canca has boen raceiyed that Mr. r. T. KENDALL