Whether damages may be vindictive or exemplary, in the strict sense of these words, that is, whether in actions ex delicto (to which it is generally admitted that exemplary damages must be confined), (x) after a jury have gone to the full length of adequate compensation for the whole injury sustained by the plaintiff, the law authorizes them to begin anew, and add to these damages something more by way of punishment to the defendant, is a grave and difficult question, and high authorities stand ranged upon the affirmative and negative. On the one hand, it is said that there is nothing punitive in the nature of civil actions, and that if anything of the kind enters into them, it is an error or an abuse which does the great mischief of confounding two perfectly distinct jurisdictions. If one man sues for an injury, it should not enter into his compensation that the wrong done was of bad example and injurious effect to others; for, if so, others who are injured can sue also; and if beyond the injury which can be reached thus, there lies a mass of general wrong which no one man can take hold of, let the State come with its criminal process. But if these two things are mingled, then the civil process for remedy and compensation loses its just * measure, and the criminal process is either not applied, or is made inefficient, by the fact that its work is done, however imperfectly, elsewhere.

On the other hand, it was distinctly asserted, so long ago as by Lord Camden, that " damages are designed not only as a satisfaction to the injured person, but as a punishment to the guilty." (y) And as all law should have for its constant end the prevention of wrong, the principle of punishment may well be mingled with that of compensation, in order to effect this purpose. And on this subject authorities are so numerous, so various, and so strong, that it must be conceded as a nearly established rule of law, that in certain cases, as in actions for libel, slander, assault and battery, false imprisonment, "malicious prosecution, seduction, and the like, the jury may give some damages for the purpose of punishment, which on other grounds they would not give, (z)

133. In Wallis v. Mease, 3 Binney, 546, it was held, that other words than those in the declaration could be introduced to show malice, but that the damages must he given for those words only for which the action was brought. See Keen v. M'Laughlin, 2S.&R. 469. In Schoon-over v. Rowe, 7 Blackf. 202, it was held, that a repetition of the same words since the commencement of the suit should not be taken into consideration in assessing damages, although they might be given to show malice. See Burson v. Edwards, 1 Smith (Ind.), 7; Rigden v. Walcott, 6 Gill & J. 413; Wagner v. Holbrunner, 7 Gill, 296.

(x) See Coppin v. Braithwaite, S Jurist, 875, cited supra, n. (s).

(y) 5 Campbell's Lives of the Lord Chancellors, 207.

In regard to the authorities, it may be confessed, that by far the greater part are obiter, and some of them quite uncalled for; and that of some of those which would have most weight, the meaning is qualified and explained by other expressions used, or greatly restrained by the facts of the case. Moreover, in nearly all cases in which there is such malice as will allow the giving of exemplary damages, there is some insult or injury to the feelings for which the damages cannot be assessed by any definite rule. Hence it may be difficult to show, in any particular case, that damages have been allowed beyond the amount of the pecuniary loss and the injury to the person and to the feelings, unless we rely upon the precise words used in the instructions of the court. But, with all allowance, there remain positive adjudications, and distinct and emphatic assertions, which go very far indeed to establish the lawfulness, in certain cases, of vindictive damages.

* We cannot believe that it was ever a principle of the ancient and genuine common law, that damages should be punishment, or that the civil remedy for a wrong done should be punitive to the wrong-doer as well as compensative to the sufferer. Damages were not, originally at least, designed for any such purpose. But it may still be a question, whether the introduction of this principle, to a certain extent and in certain cases, may not rest on good reasons as well as good authorities. The common law is not perfect, nor so unwise as to call itself perfect. It has its civil process for compensation, and its criminal process for punishment; and it wisely demands that these should be kept distinct. But it might not be wise to insist that the work of punishment should not be done at all, or should be done very imperfectly, because the proper criminal process is unequal to the requirements of some cases, although this work can be well and adequately done by the civil process in precisely these cases. There are many wrongs,

(z) This question has been ably argued on the side against allowing exemplary damages, in 3 Am. Jurist, 287, by Hon Theron Metcalf, and in the Law Reporter for April, '47, and in 2 Greenl Ev. § 253, note by Mr. Greenleaf; and on the other side, in the Law Reporter for June, 1847, and in Sedgwick on the Measure of Damages, by Mr. Sedgwick The two articles in the Law Reporter are also published in the Appendix to the second edition of Sedgwick on the Measure of Damages.

"pessimi exempli," of which the interest of the community demands the prevention, but which criminal process cannot reach at all, or cannot punish with any adequacy. The crime of seduction, sometimes worse in the character which it indicates, and in the injury which it inflicts, than murder, is one which criminal law cannot touch; and very many cases where a very great injury is compounded of elements which the criminal law, if it does not ignore, does not profess to regard as important, illustrate the occasional insufficiency of this branch of law. What good reason is there why what it cannot do, although it ought to be done, should not be done for it, by a collateral branch of the law? In the action for seduction, which must be brought for loss of service, or for a trespass quare clausum, laying the seduction only as an incident, the law first requires that the service, or the trespass, should be proved; but when this formal requirement is proved, it is forgotten, and the damages are measured by a totally different standard. It may be said, that here only the substantial gravamen is made the measure of compensation, instead of the formal gravamen. But it seems to be a rule in modern times, that when, in such a case, or at least in an action for breach of promise of marriage, a defendant defends himself by impeaching * the character of the woman, which he may do, if he makes this a distinct point of the defence and then fails in the proof of it on the trial, the jury may consider this attempt as good cause for swelling the damages. Such ruling recommends itself to our moral feelings, and to a sense of right and justice; but it would be very difficult to maintain it as a rule of law, on any other than the punitive principle, (a)