as argued by the counsel, they might think the plaintiff entitled to demand;" the same court held the instruction wrong, as giving the jury "discretionary power, without stint or limit, highly dangerous to the rights of the defendant," and "leaving them without any rule whatever." It is against this discretionary and unlimited power, so liable to abuse, and so dangerous to the rights and liberties of the citizen, that we contend; though it is not for us, but for the judiciary, to declare what is the law. G. APPENDIX NO II. FROM THE LAW REPORTER FOR JUNE, 1847. THE RULE OF DAMAGES IN ACTIONS EX DELICTO. THE April number of the Law Reporter contains an able and elaborate article by Mr. Professor Greenleaf, re-asserting and defending the position originally adopted by Mr. Metcalf, the learned reporter of the supreme court of Massachusetts, in an article in the American Jurist (vol. iii. p. 387), that damages even in actions of tort must always be strictly limited to compensation; and this doctrine is also supported by the Journal in the editorial notice of Mr. Sedgwick's work on the Measure of Damages. To endeavor to maintain ground enfiladed by a cross-fire so formidable as this, may seem a rash undertaking; but disregarding the disparity of strength and numbers, let us address ourselves to the contest-a contest on which we enter with great diffidence as to our own powers, but an unwavering confidence in the strength of our position. We will first examine the subject on authority, and after ascertaining how it stands in this respect, then look into the matter on principle. But for the purpose of better comprehending the precise nature of the question, let us see exactly what the conflicting propositions are. The doctrine of compensatory damages is thus briefly stated by Professor Greenleaf in his extremely valuable work on evidence: "The plaintiff is not entitled to receive compensation beyond the extent of his injury; nor ought the defendant to pay to the plaintiff more than the plaintiff is entitled to receive." (Greenleaf on Evidence, vol. ii. p. 209.) This latter clause is ambiguous, and in one sense imports a mere truism; for it is very certain that the defendant never does in fact pay more than the plaintiff receives, and no more than he is entitled by law to receive. But the meaning of the phrase, as amplified and insisted upon in Mr. Greenleaf's recent article, is, that the plaintiff's recovery in all cases is limited strictly to compensation; not of course to mere compensation for mere pecuniary injury, but "for every circumstance of the act com more. plained of which injuriously affects the plaintiff, in his person, his peace of mind, his quiet and sense of security in the enjoyment of his rights; in short, his happiness."* The damages must be compensation and nothing The counter doctrine is thus stated; "whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law, instead of adhering to the system or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interest of society and the aggrieved individual, and gives damages not only to recompense the sufferer but to punish the offender." Of this doctrine, Mr. Greenleaf, in the article already referred to, says that though it may seem justified by the general language of some judges, and by "remarks gratuitously made in delivering judgment on other questions, it is not supported by any express decision;" and that "though judges have spoken of exemplary or vindictive damages, they have never instructed the jury in terms that they were at liberty to increase the damages merely for the sake of punishing the defendant, and beyond the amount of injury which the plaintiff had sustained." And it is perhaps worthy of notice, that so completely unauthorized does Mr. Greenleaf seem to consider this doctrine, that it is not alluded to in the chapter in his work on Evidence devoted to the subject of damages, nor would the idea even appear to have occurred to his mind. We propose in the first place, without further preface, to see how far the above statement of the result of the adjudged cases is correct. The origin of the rule dates back to the time of Lord Camden, and the great controversy about general warrants. In Wilkes' case that great judge said, "As to the damages, I continue of the opinion that the jury are not limited by the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, and as proof of the detestation in which the wrongful act is held by the jury."‡ In New York the doctrine is as old as the case of Cheetham vs. Tillotson, (3 J. R., 56.) There the charge of the chief justice was, that "the case demanded exemplary damages, as well on account of the nature of the offense charged against the plaintiff, as for the protection of his character as a public officer, which he stated as a strong circumstance for the increase of damages, and that he did not accede to the doctrine that the jury ought not to punish the defendant in a civil suit for the pernicious effect which a publication of this kind was calculated to produce in society." * Greenleaf on Evidence, Vol. ii., 219. Law Reporter for April, 1847, 580. Lord Campbell's Chancellors, vol. v. 249. And to this precise point the defendant's exceptions were addressed. "The charge of the judge," they say, "was incorrect in stating that the plaintiff was entitled to exemplary damages, on account of the injurious tendency of said publication to the country. In a private action the party can recover only for the private wrong; he has no concern as to the public offense, for which the defendant must atone by an indictment." This, it will be noticed, is precisely the doctrine of Mr. Metcalf and Professor Greenleaf. Now what did the court say? Kent, C. J., re-affirmed the doctrine of his charge, and Spencer, J., said; "In vindictive actions, such as for libels, defamation, assault and battery, false imprisonment, and a variety of others, it is always in charge to the jury that they are to inflict damages for example-sake, and by way of punishing the defendant." How is it possible to call this language, as Mr. Greenleaf does, "extra judicial"? How can it be termed "a remark gratuitously made in delivering judgment on other questions"? In view of this case can it be safely said that "no jury has ever been told to give damages to punish the defendant ?" So, again, in the same State in a very recent case, Cook vs. Ellis, (6 Hill, 465,) of which Mr. Greenleaf takes no notice, where the defendant, having been punished criminally for assault and battery, it was insisted in an action brought for the same offense, that the fact of the conviction and punishment should be received in evidence to mitigate damages. The discussion it will be perceived, turns on the very same principle; and what said the supreme court in excluding the evidence? "We concede that smart-money, allowed by a jury, and fines imposed at the suits of the people, depend on the same principle. Both are penal, and intended to deter others from the commission of the like crime. The former, however, become incidentally compensatory for damages, and at the same time time answer the purpose of punishment." Of this decision the learned author of the article in the Law Reporter takes no notice, and it certainly could not be very well called “a remark gratuitously made in delivering judg ment on other questions." How is it in Pennsylvania? In an action of trespass, Bride vs. McLaughlin, (5 Watts R., 375,) for selling under an execution under circumstances of peculiar injustice and oppression, Grier, president, who is now on the bench of the supreme court of the United States, said, "If the jury believe that the defendants acted in a deceitful, hard, cruel, or oppressive manner, they may give not only compensatory, but exemplary and vindictive damages." In error, this was denied to be law, and the counsel for the plaintiff in error cited 3 Am. Jur., 287, (the original article of Mr. Metcalf,) in support of the doctrine now insisted on. But the court said, "whatever be the speculative notions of fanciful writers, the authorities teach that damages may be given in peculiar cases not only to compen sate but to punish. There are offenses against morals to which the law has annexed no penalty as public wrongs, and which would pass without reprehension, did not the providence of the courts permit the private remedy to become an instrument of public correction." Is this too "a remark gratuitously made in delivering judgment on other questions"? How stands the law in the Pennsylvania circuit? In Conard vs. Pacific Ins. Co. (6 Peters, 272,) Mr. Justice Baldwin said, "when a trespass is committed in a wanton, rude, and aggravated manner, indicating malice or a desire to injure, a jury ought to be liberal in compensating the party injured in all he has lost in property, in expenses for the restoration of his rights, in feeling, in reputation; and even this may be exceeded by setting a public example, to prevent a repetition of the act." How clearly is the distinction here taken, and the rule for which we contend insisted on! In New Hampshire the whole subject has been repeatedly considered. In trespass de bonis asportatis for a sleigh and horse, the defendant denied that he had committed any tort, and rested his argument upon his innocence of intention, and upon the existence of a bailment at the time he removed the property. Woodbury, J., said, “In respect to the intention, that is not, in cases of this sort, a subject of inquiry, except to prevent vindictive damages. In crimes, the intention is the essence of the charge; but in civil actions, the injury caused to the plaintiff is the essence of the charge, and whether committed through ignorance or malice, it is neither more nor less an injury caused to the plaintiff by the defendant. The intent of the party may affect the damages; and as the defendant appears not to have been actuated by any bad motive, nor to have sold or converted the sleigh to his own use, he should pay only the actual injury caused by the removal of the sleigh." Sinclair vs. Tarbox, (2 N. H. R., 135.) This recognizes the precise doctrine, that in civil cases, proper for vindictive damages, the amount of recovery varies with the intent of the defendant, and does not depend on the mere question of injury sustained. In an action for criminal conversation with the plaintiff's wife, the judge told the jury, "that in estimating the damages they should look, not only to the character and conduct of the plaintiff and his wife, to see what such a husband ought to recover for criminal conversation with such a wife, but to the conduct of the defendant, in order to determine what a person who had conducted as he had ought to pay,"-thus disregarding utterly and distinctly the notion, "that the defendant should not pay more than the plaintiff ought to receive." To this charge the defendant excepted on the ground "that it directed the jury that the damages might be imposed by the jury as a punishment," insisting that "however reasonable it may be that the defendant should be punished for his misconduct when prosecuted by the State, the plaintiff had no claim to profit by his degradation." But |