The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1866-10-27


such fragrant acts of wrong to the State or gov
eminent. There is no legal right in an lndi-
vidual acting through the press to levy war
against the government, and adhere to its enc
mics, giving them aid and comfort That is not
the freedom of the press conferred and protect
ed by the law of the land, but it is the abuse
of its privileges for which it must be held re-
sponsible.
When, in time ofactual war, the publisher of
a newspaper is guilty !of treason by writing
and publishing articles in a newspaper, the
newspaper and the press and property used to
print and disseminate it becomes public nui-
sance.
Ii it becomes public nuisance, it becomes
liable to abatement. 1t has no pre-eminent
right of existence in that form over that of any
other kind of property; but like all other nuis-
ances it exists not only without right, but
against right, and may be'abated by any indi-
vidual suffering special damage therefrom; and
the law is not so inconsistent as to allow its
owners to recover damages tor the abatement
OF that which exists not only without its auth
oflty, but in defence of its injunctiOns. The
ilct OF the existence or non existence OF pub
nc nuisance at given time is question for
Che jury, TO be by them determined under the
eVleence OF the case and the law applicable to
IL gwen them by the court.
Whether or not the property thrown out of
the building as described in this case, was at
Tue tlme 1t was thrown out public nuisance,
Is 1or you to determine under the rules have
given you and upon the evidence of the case.
IN considering this question you will refer
10 the time when this act was committed, and
may take into consideration the civil and polit-
lcai condition of the country.
Al this time several of the States had passed
| secession ordinances.
They had raised armies to resist the laws of
the United States.
They had seized forts, arsenals, minis, custom
houses and other public property.
Ihey had fired upon Fort Sumter and driven
| out our troops
The stars and stripes no longer foated in
many places where it had been placed by the
| authority OF the government, but was supplant-
| ed by another which must ever be naught but
the symbol of treason.
The principal armies of the contending
FORCES had met at battle at Bull Run, and our
forces were dispersed and compelled to retreat
1 New calls for troops were made, and the very
| life and existence of the government seemed
| trembling in the balance.
All saw that divided in sentiment and effort
| we must fail, and our glorious inheritance per-
| ish in our own hands, H
All saw that our safety lay in united, patri-
otto, sef-sacrificing spirit of loyalty and patri-
Otism. A call was made to the patriotic men
OF the country from all avocations in life to
| rally in defence of the country. The whole
country was alarmed for the very existence OF
the government ~ e5.rt
These matters have now passed into history
and will never be forgotten by any of you as
long as you remember anything. The natura
and necessary results of the publications pres
ented to you upon the public mind, may afford
you some aid in determining the character o.
the property that was thrown out. fsa
l If it was such pasblic nuisance, it was liable
to abatement, and any person suffering specia
damage therefrom had a right to abate it, us
ing no more force and doing no more injury t.
it than necessary to abate it.
The ordinary rule of damages in actions o
trespass of any ordinary character is the valu
OF the property taken and destroyed.
| But there is q class of cases where the Jur,
are not restricted to the actual damages, but
the acts are alleged to be done wilfully and ma
iciOusly, and proved to be SO done the jur.
may award as damages such sum as they, un
der the circumstances, think proper, not ex
| ceeding three times the actual damages sustain
ed. . fi5ai 81 s.
| The charge in the first count of the plaintiff.
| writ is, that the treSpass was wilfully and ma
liciously committed. Under the rules of lay
established by this court, such charge mus
4 be proved beyond reasonable doubt to entitl
| the plaintiffs to recover. The doubt must be
| reasonable character; it must be REASONABLE
doubt to avail the defendants. If such doub
does exist in your mind, either as to the identi
| ty or participation of any one or more OF thes
defendants, he is entitled to the benefit of tina
! doubt, and the case fails of sufficient proc
against him upon this count
| Malice in a legal sense has meaning differ
| ing from its popular Specification. Acts wilfu
L ~ anu OtSlSuculy uOuc, WIiCh tiC uiAiou IL
, | are malicious in respect to those to whom the
, are injurious.
The plaintiffs have another count in comma
form emitting the malicious allegation. .Upo
| this count you must have reasonable satisfat
ton of the guilt of any party to find verde
, | against him, and if you do find verde
, | against any under this count you are not lin
tied to the actual damages sustained by tn
t plaintiffs, but may in addition give by way
damage an amount equal to lawful interest o
the actual damage from the 10Th of Angus
3 1861, and may also add any sum you may deel
8 proper as exemplary damages.
: If you should find the property was publ
nuisance and that the defendants were autho
4 lied under the rules have given you to aba
E it, and in so doing they did more than was ne
8 essary in abating it, they would be liable f,
i, that excess in this action; and you will asce
. tain what those damages are thus sustaine
: and render your verdict upon the matter
Q damages under the rule have given you.
= The case calls for your careful and serious q
Ef financed by any PERSONAL or par
me lCself depends
+ sity end Independence Of courts and juries-
moa have sworn Xaa VIII is law and sviasnha
given you. You cannot satisfy yourselves an
a your own consciences and perform your duty
: jurors unless you do SO.
0 Let no consideration whatever swerve We
{ from the strict path of duty. The responsible
} ty of a true verdict upon the evidence belong
, to you. If / have erred in giving you the La
it may be corrected. If you should determiI
, the law, great injustice may be done without
remedy.