Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-01-30
DAILY KENNEBEC JOURNAL FRIDAY. JANUARY go 1908.

ed by judicial sycophants appointed by
| the king and removable at his royal
will, were intended to protect the abb
| solute power of the master that gave
them bread. Political and public dis
cussion was outiawed The doings of
parliament were sacred. The motives
of the party in power were safe from
attack. The press was muzzled. The
royal governors of the colonies were
equally servile in fastening upon their
people the same illogical rules.
The rules of evidence, the course of
procedure, the presumption of malice,
and the definitions of terms, in the
hands of subservient courts were all
| the logical outgrowth from the legal
| fiction that defamation is primarily a
wrong against the public. The COM
mon law ignored it's cardinal principle
| that plaintiffs in civil actions should
receive compensation only for their
personal wrongs. Logically plaintiff
in libel should be heard to recover only
| for the injury to his credit, business,
feelings or reputation. The State
should redress its grievances by
| process of it's own.
| The states have set aside some of
these rules. The truth may be proven
in justification, unless published with
malicious intent to injure the plaintiff
Beyond this the law has made but lit
tie progress. Democratic America in
its administration of the law of libel
| still worshiDS at the shrine of royalty,
although aristocratic England long
since modelled her law along the lines
of truth in harmony with the
philosophy of all law. Our doctrines
still flow from the fiction that libels
are a breach of the peace, quasi -crimi-
nal rather than civil wrongs. England
long since pulled down this pelnicicus
.ule by statute and built a system
upon the fundamental idea that libel
is Il wrong to the individual for which
he should have just compensation and
re .nore--a principle that underiies
the system of justice administered iii
comr.on law courts.
| In Maine. when publication is proven,
malice is presumed. The defendant is
not allowed to show his actual motives.
He must plead and prove the truth at
his peril. That the editor believed the
item to be true and acted in good faith
is no defence. Certain public matters
ere privileged and their publication af-
fords no presumption of malice. To
this extent the courts of America
recognize the fact that Charles the
| 1. is dead and comfortably buried
in pieces. 1t was my privilege in
Plummer VS.. Portland Evening Express
| to take the first step toward engraft-
| ing upon our law the rule subsequently
sustained in Bearee VS.. Bass that
honest criticism of the official conduct
of a public officer in good faith. after
fair inquiry, made with honest mo-
| tives is not actionable. To this extent
Maine stepped forward. Constructive,
or legal malice, the quality of malice
presumed from publication, must not
be confounded with actual malice Lee
gal malice means simply want of legal
excuse. Many judicial opinions would
be more ineligible if this substitution
of words could be made. Many an
editorial would not have been written
had the learned editor understood the
true meaning of malice in law Par
don ME if l say that most of your ar
ticles and reports on legal matters are
like the human frame, "fearfully and
wonderfully made" Malice in law, or
legal malice, does not mean ill will
toward the person lbelled. Actual
malice requires proof of such ill will.
For illustration, when publication is
proven the law presumes legal malice;
in other words. no further proof is
necessary to show want of legal ex-
cuse. 1t is for the defendant to there
upon show the legality of his act. If
the truth is pleaded and proven, or
hn II -J,1
privileged, the defendant proves his le-
Igal excuse and overcomes the oppos-
ing presumption of legal malice, or
want of legal excuse; and the plain
tiff fails. If, in the same case, the
plaintiff can show in reply that the
truth was published with actual
malice. that is in a spirit of i'll will and
with intent to injure the plaintiff, the
scales tip again and the defendant is
liable. Such is the marshalling of the
evidence. The rule is an ancient relic
based upon false premises. Practically,
it does but little harm, save only i'll the
fact that the burden is upon the de-
PENDANT to prove the truth of the mat
ter published. While unjust and il
logical, 1 doubt if any defendant has
suffered materially on account of it,
The mischief comes from other rules
THAT owe their origin to this primary
wrong. Logically there is no reason
why the plaintiff alleging q statement
to be false should not in the first
instance prove the falsity by pre-
ponderance of evidence. The falsity is
the gist of his action. But George the
III. felt safer when his judges held
otherwise and the common law courts
of America. in the absence of legisla-
ton. feel that the wishes of George the
III. should be respected. Editors
will continue to assume the burden of
proof, until some fair-minded 1egisla-
ture declares it wrong to brand them
as convicted criminals without proof.
The otherwise universal presumption
of innocence lets loose many mur-
derer and is the bulwark behind which
the rum traffic has for half century
fought good morals and the best in
| terests of society, but your profession,
toasting of its power for good, is con-
sidered more dangerous to society than
the assassin. the burglar the forger,
the thief and all the outcasts that war
upon mankind. Yet we claim to be
progressive people. The rule is no
1