Fay v. Parker.

Wade, an action for seduction, "actions of this sort are brought for example's sake; and, although the plaintiff's loss in this case may not really amount to the value of 20s., yet the jury have done right in giving liberal damages."

Do cases of the character of Tullidge v. Wade sustain the priaciple which Mr. Mayne and Mr. Sedgwick deduce from them? Do they not almost invariably disclose circumstances attended with studied insult; such cases as, in modern times at least, are admitted by all courts and jurists to come within the rule authorizing damages for the insult, by way of compensation, "operating," indeed, as Mr. Mayne says, "as a punishment ?"

Did it occur to Mr. Ch. J. WILMOT that wounded feelings were an element of actual damage, as in later times it is universally allowed to be? or, was the idea of pecuniary compensation for mental sufferings a sentiment ethereal, intangible, and too refined for the age in which he lived?

Call them what you may, compensatory in fact, or punitory in their operation, if the same damages are awarded but once the distinction is merely verbal, and we may well doubt whether the learned chief justice, in recommending the award of damages with a liberal hand, intended any thing more or other than we mean, when we tell juries to give the plaintiff what the defendant ought to pay and the plaintiff ought to receive in view of the wrong and suffering inflicted by the malice, insult, and indignity exhibited by the circumstances of the case.

Blackstone defines damages as the money "given to a man by a jury as a compensation and satisfaction for some injury sustained; as for a battery, for imprisonment, for slander, or for trespass." 2 Bl. Com. 438.

"By damage, we understand every loss or diminution of what is a man's own, occasioned by the fault of another." 1 Rutherf. Inst., Book I, ch. 17, § 1, p. 385.

The learned writer last cited also says, "as the heirs of the criminal have no claim to such goods as he loses in the way of punishment, so neither has the injured person any, considered merely as the injured person. He has indeed a right to so much of the criminal's goods as will make him amends for the damage which he has suffered; but no reason can be given why he should have a right to more, unless some positive law has given him such a right. The ends which justify punishment will by no means extend his claim

Fay v. Parker.

any further than this. The criminal, by suffering in his goods, may be discouraged or prevented from offending again; but a design to discourage or prevent him from offending again can be no ground for that person, whom he has injured by offending once, to claim property in the goods which he is deprived of. The ends of punishment may oe answered by taking the criminal's goods from him; but these ends do not require that the property which he loses should be vested in the person whom he has injured." 1 Rutherf. Inst., B. I, ch. 18, § 14, p. 434.

Mr. Tidd defines damages as "a pecuniary compensation for an injury." Tidd's Pr. 870.

The subject and the nature of damages in civil actions are treated of in Child v. Sands, Carthew, 296, and in Savill v. Roberts, id. 416; but punitive or exemplary damages are not enumerated among the kinds of damages which are said to be the foundation for an action.

Judge BOUVIER, in his law dictionary, Tit. "Vindictive Damages," while admitting that "the current of authorities sets strongly (in numbers, at least) in favor of allowing punitive damages," indicates most clearly his own opposition to the doctrine, saying, such a "view of the matter is certainly open to the objection that it admits of the infliction of pecuniary punishment to an almost unlimited extent by an irresponsible jury, a view which is theoretically more obnoxious (supposing that there is no practical difference) than that which considers damages merely as a compensation, of the just amount of which the jury may well be held to be proper judges. It would also seem to savor somewhat of judicial legisla tion in a criminal department, to extend such damages beyond those cases where an injury is committed to the feelings of the innocent plaintiff."

Comyns, treating of "damages-how assessed," nowhere intimates a power of assessment beyond or other than as compensation. 3 Com. Dig., Damages, E.

Mr. Justice BULLER, in all the chapters of his " Nisi Prius" on the subject of actions founded upon torts, has no word about exemplary, vindictive, or punitive punishment.

It is impossible to read these chapters (ch. 1, of Slander; 2, of Malicious Prosecution; 3, of Assault and Battery; 4, of False Imprisonment; 5, of Injuries arising from Negligence; and 6, of

Fay v. Parker.

Adultery), without the conviction that this eminent judge regarded damages, in all cases, as compensatory merely.

In chapter 3, page 21, he remarks that, by the Jewish constitution, he that hurt his neighbor was responsible on five accounts: 1. For the damages; 2. For the pain; 3. For the cure; 4. For the cessation of work; 5. For the affront or disgrace.

Whatever may have been considered as comprehended under the first head, there is, here, no intimation of any thing beyond compensatory damages.

But, if the Jewish constitution had proceeded with the enumeration of elements, as thus: 6. For an example to others; 7. For punishment by way of fine, pro bono publico; and 8. For the same fine, also pro bono publico, by criminal procedure, it would have gone far in advance of the code which prescribed no more than an eye for an eye and a tooth for a tooth, and would have approximated the modern doctrine, as indicated by the instructions to the jury in the case before us.

Again, speaking of adultery, Mr. Justice BULLER says, "As the injury is great, so the damages given are commonly very considerable; but they are properly increased or diminished by the particular circumstances of each case;" but no damages by way of punishment or example are indicated.

Undoubtedly many of the cases cited and relied upon by Mr. Sedgwick, in support of his doctrine, sustain to the fullest extent the position assumed by him (see his text and notes, pp. 515-539); but some of them fall so far short of affording such support, as would seem to indicate a misconception of their true import and meaning.

In this latter category, as it seems to me, must be classed the case of Tullidge v. Wade, to which I have already sufficiently adverted.

The case of Huckle v. Money, 2 Wils. 205, A. D. 1763, is subject to the same criticism. "The personal injury done to the plaintiff," said Lord Chief Justice PRATT, afterward Lord CAMDEN, "was very small, so that if the jury had been confined by their oath to consider the mere personal injury only, perhaps £20 damages would have been thought damages sufficient;" but the jury who assessed £300 "saw a magistrate over all the king's subjects exercising arbitrary power, violating magna charta, and attempting to destroy the liberty of the kingdom endeavoring to support and

* *

Fay v. Parker.

maintain the legality of the warrant in a tyrannical and severe and I think they have done right in giving exem

manner,

* *

plary damages.'

If Lord CAMDEN said no more than this, he said no more, in substance, than that for the outrage and indignity heaped upon the plaintiff by the insolence, oppression, and tyranny of the defendant, a jury might give the plaintiff liberal damages, and such as should operate (to use Mr. Mayne's language) by way of example. In a note commenting upon this case, Mr. Tidd says, "It may, however, admit of a doubt whether, as the damages are intended merely as a compensation to the plaintiff for the injury he has sustained, they ought in any civil case to be exemplary, or given for the sake of example to other persons." Tidd's Pr. 889, note a.

66

Lord CAMPBELL, in his Lives of the Chancellors, Vol. V, p. 207, reports the lord chief justice as having said in Beardmore v. Carrington, 2 Wils. 244, "As to the damages, I continue of opinion that the jury are not limited to 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 a proof of the detestation in which the wrongful act is held by the jury."

I do not know what is Lord CAMPBELL'S authority for attributing this language to the lord chief justice. It is not to be found in the elaborate report of the opinion by Wilson.

Was it this supposed language of Lord CAMDEN which prompted Lord CAMPBELL, in giving a history of this case, to say, "The immense popularity which Lord Chief Justice PRATT now acquired, I am afraid, led him into some intemperance of language, although his decisions might be sound?" Lives of the Lord Chancellors, Vol. V, p. 249.

But what Lord CAMDEN did say, according to the original and almost contemporary report of Wilson, was very different. The application was, to set aside the verdict for excessive damages. And his lordship said, "for any thing we know, the jury might say 'we will make no difference between the minister who executed and the magistrate who granted this illegal warrant;' so the court must consider these damages as given against Lord HALIFAX; and can we say that £1,000 are monstrous damages as against him, who has granted an illegal warrant to a messenger who enters into a man's house, and pries into all his secret and private affairs, and carries him from his house and business, and imprisons him for six days? VOL. XVI.-38

Fay v. Parker.

It is an unlawful power, assumed by a great minister of state; can anybody say that a guinea per diem is sufficient damages in this extraordinary case, which concerns the liberty of every one of the king's subjects? We cannot say the damages of £1,000 are enormous, and, therefore, the rule to show cause why a new trial should not be granted must be discharged."

Another case of similar character, and much relied upon by the advocates of exemplary damages, is Merest v. Harvey, 5 Taunt. 442, A. D. 1814, which was trespass quare clausum, wherein it appeared that the plaintiff, a gentleman of fortune, was shooting on his own estate, when the defendant, a banker, magistrate, and member of parliament, forced himself on the plaintiff's land, fired at game several times, and used very intemperate language. The jury found a verdict for £500; and, on motion to set aside for excess, GIBBS, C. J., said: "I wish to know, in a case where a man disregards every principle which actuates the conduct of a gentleman, what is to restrain him except damages? To be sure, one can hardly conceive worse conduct than this. What would be said to a person in a low situation in life, who should behave himself in this manner? I do not know upon what principle we can grant a rule in this case, unless we were to lay it down that the jury are not justified in giving more than the absolute pecuniary damage that the plaintiff may sustain. Suppose a gentleman has a paved walk in his paddock, before his window; and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner: is the trespasser to be permitted to say, 'Here is a half-penny for you, which is the full extent of all the mischief I have done.' Would that be a compensation? I cannot say that it would be."

Now, that is all that Mr. Chief Justice GIBBS said, in Merest v. Harvey, about exemplary or punitive damages.

But Mr. Justice HEATH interposed and said: "I remember a case where the jury gave £500 damages for merely knocking a man's hat off; and the court refused a new trial. There was not one country gentleman in a hundred who would have behaved with the laudable and dignified coolness which this plaintiff did. It goes to prevent the practice of duelling, if juries are permitted to pun ish insult by exemplary damages."

Now, notwithstanding the remark of Mr. Justice HEATH, which may indeed reflect his view of the propriety of punishment in dam