Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-01-30

dation of different actions pending
against different parties for substan-
TALLY the same libel one trial. and n
verdict appOrtioning the damages. This
| is today the law in England This pro-
| vision believe to be of doubtful value
and still more doubtful expediency. 1t
/ Introduces a novelty in practice, found.
so far as / am aware, in no American
state. Lawyers are conservative in
changing the ancient procedure of the
courts. The same result would be
practically reached by the section as it
stood in the bill of 1901. While
theoretically right. it is well to re-
member that revolutions move by
steps. 1t may not be expedient to load
the bill with novelties that jar upon
the habits of the legal professions.
| The primary legal fiction of the COM
mon law that excluded even the truth
| is responsible for the unjust rule of
| today that where a defendant pleads
the truth, in good faith, and honestly
attempts to sustain his plea by proof. il
| he fails to satisfy the jury of the truth
of such pleadings, it is the duty of the
court to instruct the jury that for such
| failure the damages may be increased.
| 1t is technically reasoned that the un-
proven allegation solemnly made a
second time in court, and distinctly as
serted upon the record to be true, is a
| legal repetition of the original libel.
| Starting with the basic error that libels
ere breaches of the peace, the cOnclu-
sion followed that an unproven allega
| ton of truth in the pleadings should be
the subject of increased punishment.
Again the principle of compensation is
overlooked. The defendant is punish
ed for honestly and in good
faith defending his constitutional
rights in court of justice.
To be consistent, the court shouI. rule
that in all actions sounding in damages
something should be allowed, beyond
just compensation, whenever a de-
PENDANT fails to sustain his defence.
In the entire body of law, no such in
justice can be found. Presumed to be
guilty of publishing falsehoods, de-
prived of the right of showing that an
apology reduced the actual damages,
compelled to pay full damages no mat
ter how many times over the plaintiff
may have been made whole by others,
you are punished by the court and
made to pay increased damages if you
attempt to exercise the constitutional
right of every litigant-an honest at
tempt to make an honest defence. 1t
is reproach upon the common law
that in these days of popular liberty,
when the spirit of justice breathes up
on men and nations with increasing
power, the law lags behind civilization
and the ashes of drunken kings and
n ar Co.,
the rights of man. No litigant will
suffer if this ancient rule is abrogated.
An honest plaintiff, with an honest
cause, has no occasion to ask for an
artificial rule of damages because his
opponent, equally honest, has failed
to sustain his defence. Section three
of the bill of 1901 provided that if
the truth were pleaded and unproven
such failure should not be proof of
malice unless the jury found that the
defence was maliciously made. The
section was borrowed from the statutes
of Illinois and Michigan. Similar
statutes exist in Iowa and Wisconsin,
l notice with some regret that the sec
ton is omitted from the bill introduced,
this winter. 1t was most valuable
part of the former bill. You should
have, as matter of common justice,
the right of pleading every defence
legally open to you, if pleaded in good
faith, without the fear of being pun
ished for your honest belief that your
defence can be sustained.
The bill, this winter, contains the
important rule that where an apology
is made or offered, under proper re-
strictions, no punitive or exemplary
damages shall be allowed. 1t is to be
regretted that exemplary damages
cannot be prohibited in all actions of
law. The doctrine of punitive damages
is unnatural, wrong. illogical, and con-
demned by the best of legal authors
A litigant seeks the courts for COM
pensaticn for a wrong done to him as
an individual. If he proves that the
wrong was done in such a manner as to
be an offense against society, the
court instructs the jury that the plain
tiff can recover compensation for both
wrongs. the latter by way of punish
ment as an example to deter others
from similar acts. The true principle
of civil justice, compensation, is over
looked. The State has it's own pro-
cess for the redress of wrongs to So
ciety. Compensation for a wrong to
society should be made to the public,
not to the individual. But illogical as
it plainly is, the excrescence has fast
ened itself upon the law too strongly
to be stripped off save by legislation.
A brakeman upon the car of British
railroad company operating in this
State shook his fist in the face of a
distinguished judge and the Maine
court, to sustain a verdict of five
thousand dollars, imported into our
common law the rule of exemplary
damages.
Once there, the doctrine of stare de-
clsis made it sacred. Indefensible
though it may be, it is here to stay
Without it, but few vefdicts in actions
of libel would be oppressively large
Certainly, an honest apology ought by
positive statute to confine the plain
tiff to his actual damages.
At the proper time, perhaps not now |
the plea of not guilty in actions of libel |
should be given greater scope At COM
mon law the plea put in issue only the |
fact of publication. Following this rule |
all defenceS today must be specially |
pleaded and upon the defendant rests the |
burden of sustaining by the greater |
wpiOhf Of ovid n lie 9