the same principle of arbitrary and fixed valuation was applied to matters of contract for sums certain,* in which cases it was provided that damages should not be given beyond the double of the amount in question; hoc quod interest dupli quantitatem minime excedere.t

The civil law, as introduced into modern Europe, seems to have retained the early features of its original, in the respect of which we are now speaking, and instead of laying down any fixed or arbitrary rule, to have left the matter very much to the discretionary consideration of the tribunal which has cognizance of the cause.

So, under the civil law, as established in France, and previous to the adoption of the Code Napoleon, damages were divided into interest and damages, interêts and dommages-interêts. Interet answers precisely to our interest, and is the measure of damages inflicted for the breach of a mere pecuniary obligation, as in the common cases of bills and notes. Dommages-interêts correspond with our term damages in its application to all other forms of action; and in this respect it is that the system appears loose and uncertain.‡

After laying down the rule in regard to interest, which as with us is limited to a fixed rate, Domat says: "The other kinds of damages are undefined, and are increased or diminished, according to the discretion of the judge, dependant upon the facts and circumstances of the particular case; thus, in the case of a tenant who omits to make the repairs to which he is bound by his lease, or of a contractor who does not perform his

*Code, Lib. VII., Tit. 46. De Sent. quæ pro eo quod int. prof.

+ The original of this rule is, probably, to be found in the Twelve Tables. "Si quid endo deposito dolo malo factum escit duplione luito. Si depositarius in re deposita dolo quid fecerit in duplum condemnetur." See Pothier's Pandects, by Bréard Neuville. Vol. I., p. 332-364–366.

In addition to the two heads of Interest and Damage, Domat makes a third of Restitution des Fruits, which we shall consider under the head of Mesne Profits, it being fairly a branch of the great subject of damages.

Loix Civiles, Liv. 3, Tit. V., Vol. I., p. 259. "Les autres sortes de dommages sont indéfinis et ils s'étendent ou se bornent différemment par la prudence du juge, à plus ou à moins selon la qualité du fait et des circonstances. Ainsi un locataire qui manque aux réparations qu'il doit par son bail, un entrepreneur qui manque de faire l'ouvrage qu'il a entrepris ou qui le fait mal doivent indefiniment les dommages et les interets qui peuvent suivre du defaut d'avoir executé leur engagement; et on les regle différemment, selon la diversité des pertes qui arrivent, la qualité des faits qui les causent et les autres circonstances."

contract, or performs it ill; in either case they owe an indefinite amount of damages resulting from the default, and these damages are differently regulated according to the loss which has happened, the nature of the facts and the attendant circumstances."

And he illustrates these rules by one or two cases as to profits claimed as loss where he says, "It must be left to the discretion of the judge to arrive at some measure of compensation according to the circumstances and the particular usages, if there are any."* And again,+ "It results from all the preceding rules, that as questions of damages depend on the attendant facts and circumstances, they must be decided by a sound discretion, exercised as well with regard to the circumstances of the case as to general principles."

And so says Pothier, "It is necessary to exercise a certain degree of moderation in estimating the amount of damages, according to the particular case." And again,§ "Damages are to be moderated where they would otherwise be excessive, by leaving the computation to the arbitrament of the judge." So, again, "Where the damages are considerable in amount, they

* P. 262, "Il doit dépendre de la prudence du juge d'arbitrer et de moderer quelque dédommagement selon les circonstances et les usages particuliers s'il y en avoit." + Book III., Tit. V., Sec. 2, Vol. I., p. 270. "Il résulte de toutes les regles precedentes que comme les questions des dommages et interets naissent toujours des faits que les circonstances diversifient, c'est par la prudence du juge qu'elles se decident, en joignant aux lumières que les principes doivent donner, le discernement des circonstances et des égards qu'on doit y avoir." I find in an old French work, 1637, Recueil des Arrests Notables, a curious illustration of the looseness of the old French law, in this respect. It says: "En estimation des Dommages et Interets quand les experts sont discordans, le juge d'office doit prendre un tiers, et s'ils ne s'accordent le juge ne doit suivre ni la haute ny la moindre estimation." So, again, in the Journal des Audiences, T. 6, p. 252, on the question whether a promise given by a female to marry under a dédit, or forfeit of a fixed sum was to be regarded as liquidated damages. "La proposition stipulatio pænae in contractu sponsalium apposita improbatur est ecrite dans tous nos livres, qui ont traite de la matiere-Dans la jurisprudence on ne s'arrete point a ces stipulations de peine-Les Dommages-interets ne sont adjugez que ad arbitrium boni viri-suivant que le meritent les cas de mauvaise foi, de la condition des personnes, de la depense, perte, ou deshonneur."

Traité des Obl., Part I., Chap. II., Art. 3, § 160. "Il faut même selon les differens cas, apporter une certaine moderation à la taxation et estimation des dommages dont le debiteur est tenu."

§§ 164, "Nous devons modérer les dommages et interêts lorsquils se trouvent excessifs en laissant cette modération à l'arbitrage du juge."

"Quand les dommages et interêts sont considerables, ils ne doivent pas etre taxés et liquidés en rigueur, mais avec une certaine moderation."

should not be rigorously assessed, but with a certain degree of moderation." And again, even in cases of fraud:* "It must be left to the discretion of the judge, even in cases of fraud, to exercise a certain degree of indulgence in fixing the amount of damages."

Merlin uses substantially the same language; he says,† “It is to be observed that the law of Justinian, so far as it limits exorbitant or excessive damages to precisely double the value of the thing in controversy, has not the force of law with us, [and the Code has not incorporated it among its provisions,] but the principle on which it is founded, being one of natural equity, it should be adhered to, by moderating the damages wherever they are too great, by leaving them to the arbitrament of the judge."

In the various systems of jurisprudence which we have thus cursorily examimed, we see that the difficulty inherent in the subject, is sought to be avoided, either by fixing on an arbitrary valuation of the loss sustained applicable to all cases, or by leaving the whole matter largely to the discretion of the tribunal which has cognizance of the subject.

Our law differs very materially from all these systems. By it, in all cases of civil injury, or breach of contract, with the exception of those cases of trespasses or torts, accompanied by oppression, fraud, malice, or negligence so gross as to raise a presumption of malice, where the jury have a discretion to award exemplary or vindictive damages; in all other cases the declared object is to give compensation to the party injured, for the actual loss sustained.§ And the amount of this compensation is a question of law, not governed by any arbitrary assessment, nor, on the other hand, left to the fluctuating discretion of

* § 168, "Il doit etre laissé à la prudence du juge, même en cas de dol d'user de quelque indulgence sur la taxation des dommages et interêts."

+ Repertoire; Dommages et Interêts, vol. 8, "Il faut observer que la loi de Justinien en ce qu'elle reduit precisement au double de la valeur de la chose les dommages et interets exorbitans, n'a pas force de loi parmi nous, [et le Code Civil ne l'a pas remis en vigueur,] mais le principe sur lequel elle est fondeé, étant un principe qui émane de l'equité naturelle on doit s'y conformer, et en conséquence, modérer les dommages et interets lorsquils se trouvent excessifs en laissant cette modération à l'arbitrage du juge."

There is a single exception in regard to contracts-that of promise of marriage, which, as we shall see, is left largely to the discretion of the jury.

§ Smith vs. Sherwood, 2 Texas R., 460.

either judge or jury. By the general system of our law, for every invasion of right there is a remedy, and that remedy is compensation. This compensation is furnished in the damages, which are awarded according to established rules; and these rules form what is called the Measure of damages.

"Wherever," says Blackstone, "the common law gives a right, or prohibits an injury, it also gives a remedy by action."* "If a statute gives a right," said Lord Holt, "the common law will give a remedy to maintain that right; a fortiori where the common law gives a right, it gives a remedy to assert it. This is an injury, and every injury imports a damage."+"It is the pride of the common law," says the Supreme Court of New York, "that wherever it recognizes or creates a private right, it gives a remedy for the wilful violation of it."

"Another species of property," says Blackstone,§ "acquired and lost by suit and judgment at law, is that of damages, given to a man by a jury as a compensation and satisfaction for some injury sustained." "Every one," said Lord Holt, "shall recover damages in proportion to the prejudice which he hath sustained." "Damages-damna in the common law," says Lord Coke, "hath a special signification for the recompence, that is given by the jury to the plaintife, for the wrong the defendant hath done unto him."

"It is a general and very sound rule of law," said Sedgwick, J., delivering the opinion of the Supreme Court of Massachusetts,** "that where an injury has been sustained, for which the law gives a remedy, that remedy shall be commensurate to the injury sustained." "It is a natural and legal principle," said Shippen, Chief Justice of the Supreme Court of Pennsylvania,†† "that the compensation should be equivalent to the injury." "The general rule of law," said Story, J., to the jury on the

*Com., III., Ch. VIII., p. 123.

Ashby vs. White, 1 Salk., p. 19.

Yates vs. Joyce, 11 J. R., p. 136. See, also, Lamb vs. Stone, 11 Pick., p. 527. Allison vs. McCune, 15 Ohio, 726; and Webb vs. Portland Manuf. Co., 3 Sum. 192. § Com., II., Ch. 29, p. 438.

[ Ferrer vs. Beale, 1 Lord Raym., p. 692.

1 Co. Litt., 257, a.

**Rockwood vs. Allen, Ex'r., 7 Mass., p. 254.

tt Bussy vs. Donaldson, 4 Dallas, 206.

Rhode Island circuit,* "is this: whoever does an injury to another, is liable in damages to the extent of that injury. It matters not whether the injury is to the property, or the person, or the rights or the reputation of another."

And this compensation is awarded, except in those cases to which we have referred, according to certain rules of law which the jury are not at liberty to disregard, and which equally control the conduct of the court. "In cases," said Washington, J., on the Pennsylvania circuit,+ "where a rule can be discovered, the jury are bound to adopt it. That rule is, that the plaintiff should recover so much as will repair the injury sustained by the misconduct of the defendant." In regard to the rate of damages on a foreign bill of exchange, the New York Court of Errors said "In this, as in other cases of contract, the rule by which the amount or extent of redress should be ascertained, is a question of law."+

It is not, however, to be understood that legal relief is to be had for every species of loss that individuals sustain by the acts of others. It is undoubtedly true that damage resulting from fraud, deceit or malice, always furnishes a good cause of action.§ "This principle," says the Supreme Court of Ohio, "is one of natural justice long recognized in the law." But where the injury is not to be traced to any evil motive, the rule is by no means universal that injury is always entitled to redress. In addition to the great class of moral rights and duties which the law does not attempt to protect or enforce, there are many sufferings inflicted by human agency, where the immediate instruments of the injury are free from fault or the act beyond their control. In these cases the law does not seek to interfere.**

*Dexter vs. Spear, 4 Mason, p. 115.

Walker vs. Smith, 1 Wash. C. C. R., p. 152.

Graves vs. Dash, 12 J. R., p. 17.

§ Paisley vs. Freeman, 3 T. R., 51. Upton vs. Vail, 6 J. R., 182. Barney vs. Dewey, 18 J. R., 224.

Bartholomew vs. Bentley, 15 Ohio, 659, 666.

Paisley vs. Freeman, 3 T. R., p. 51.

**Such are the cases governed by the maxim Salus populi suprema lex. "There are many cases," says Mr. Broom, in his recent interesting and valuable work on Legal Maxims, p. 1, "in which individuals sustain an injury for which the law gives no action, as where private houses are pulled down, or bulwarks raised on private property for the preservation and defense of the kingdom against the king's enemies." Such, again, are those which fall within the maxim "Necessitas inducit privilegium