question was referred to the twelve judges, who certified that under the circumstances of the case they saw no reason to doubt of the jurisdiction of the court martial.

It is true that that trial was had on the application of the party accused, who having been dismissed from the service. during his absence from England, thought it was due to his reputation, upon his return, to demand an investigation of his conduct, to relieve himself from the disgrace. But I do not perceive that this circumstance can affect the principle of the decision; for if the court martial had no jurisdiction, it is very clear that the consent of the accused could not confer it. It is, however, for the reasons already given, unnecessary to decide on this point.

In this case there can be no doubt, I think, that the court martial have jurisdiction, and that they may legally proceed in the trial on the charges stated in the return. The petitioner, therefore, must be remanded to the custody of Captain Morris.

ART. VII.-A READING ON DAMAGES IN ACTIONS EX DELICTO.

By damages is here meant a compensation, recompense, or satisfaction, given by a jury to the plaintiff, for an injury received by him from the defendant. Co. Lit. 257; 1 Lil. Ab. 381; 2 Bl. Com. 442.

It is said by elementary writers and by compilers, that circumstances, which do not affect the act complained of, may be given in evidence to mitigate damages; and also that circumstances, which form no part of the actionable matter of a suit, may be given in evidence to aggravate damages. These are not the precise terms used in the books, but this is the precise doctrine advanced.

The proper meaning, it is apprehended, of the phrases, ‘in mitigation of damages,' and 'in aggravation of damages,' is often palpably mistaken. When evidence is given for the purpose of showing that the injury received is greater or smaller than it would appear to be if such evidence were not introduced, it may properly be said to be received in aggravation or mitigation of damages; and in no other instance.

And

it is the purpose of this examination to show that neither on principle, nor by the preponderance of authority, can damages be estimated by any other standard than the actual injury received that the extent of the injury is the legal measure of damages. Like most other positions, however, this has its exceptions; and they should be here noticed.

In the first place, the defendant, by pleading only the general issue, may deprive himself of the right to give matter of justification in evidence; and according to some decisions, by pleading in justification matter which he fails to prove, he deprives himself of the right to give evidence that the injury done by him is less than it appears to be from the plaintiff's evidence and from legal presumptions.

In these instances, the evidence is held not to be pertinent to the issue. It is excluded, therefore, by reason of the defendant's fault; and its exclusion does not affect the principle on which damages are to be assessed. That principle, as ordinarily applied, is controlled or modified in its application, by other legal principles of equal importance.

In the second place, the plaintiff may not be allowed to recover to the amount of the injury sustained by him, because he elects one of two or more concurrent remedies, which, by legal rules, does not admit of the assessment of damages to that amount. This again is the fault of the party, and not of the law. Thus if goods are tortiously taken and carried away, and sold by the wrong-doer, the owner may bring trover, and recover the value of the goods; or trespass, and recover not only the value, but the unavoidable additional damage he has directly suffered; or he may wave the tort and bring assumpsit for money had and received. If he adopt the latter course, he can recover only the money for which the defendant sold the goods; and if it be less than their value, his loss is not compensated; for a recovery in assumpsit is a bar to a future. action of trover or trespass. Cowp. 419, Lindon v. Hooper; 6 D. & E. 695, Parker v. Norton; 2 Ld. Raym. 1216, Lamine v. Dorrell; 5 B. & A. 765, Laugher v. Brefitt.

Again, in certain forms of action, as trover, detinue, &c. the law has settled a rule of damages, which cannot now be disturbed, although it may not, in most cases, give the plaintiff a full compensation for his injury. In trover, the value of the property at the time of conversion is the settled measure of damages, with the addition, in some courts, of interest on that

amount, to the time of judgment rendered. Evidence that the defendant supposed the goods were his own, or that he had no ill intentions, was never offered to reduce damages; nor evidence of his wantonness and malice, to enhance them. Only one circumstance is permitted to vary the rule and reduce the damages below the value of the goods, to wit: restoration, which shows the amount of the injury sustained by the defendant. Bul. N. P. 32; 6 Serg. & Rawle, 300, Jacoby v. Lausatt; 4 Pick. 466, Kennedy v. Whitwell; 14 Johns. Rep. 128, 273; 2 Caines' Cases in Error, 200; 4 Greenleaf, 274, Rogers v. Crombie; 1 Nott & M'Cord, 221, 237, 334.

Once more. In an action of debt for the escape of a prisoner in execution, the jury must give the full original debt, &c. though the prisoner be unable to pay any part of it; and interest is not recoverable, though he may have absconded beyond the reach of process, carrying a large fortune with him. This is no part of the common law of England. It is of statute origin there, though a part of the common law here. Great injustice sometimes happens under this rule of law, and it is hoped that the distinction, in this anomalous instance, between debt and trespass upon the case, will speedily be abolished by legislative interposition. See 2 Bl. Rep. 1048, Hawkins v. Plomer; 2 D. & E. 126, Bonafous v. Walker; 2 Chit. Rep. 454, Robertson v. Taylor; 2 Johns. Rep. 454, Rawson v. Dole; 7 Mass. Rep. 377, Porter v. Sayward; 2 Mason, 486, Steère v. Field; 1 N. Hamp. R. 85, Gerrish v. Edson; 3 Yeates 17; 4 ib. 47, Shewell v. Fell.

Except these, and perhaps some other examples, not now recollected, it is believed that the measure of damages is, as before stated, the extent of the injury suffered. How then are the books to be understood, which assert that the motives and intentions of the defendant, his malice or want of malice, the amount of his property, the provocation given him by the plaintiff, &c. &c. may be shown in aggravation or mitigation of damages?

It may be well to inquire what the law regards as the injury which a plaintiff receives from the defendant. In some instances, this injury, as we have seen, is the mere loss of property estimated at its value. In others, as will be seen hereafter, the insult and indignity accompanying the act, form a main part of the injury itself. Mental and bodily suffering

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often constitute an important item of damages, because they are regarded as part of the injury inflicted, although no pecuniary loss attends them. For mere mental suffering, however, it seems that damages are not recoverable, unless the act which causes it be wilful. If the act be not wilfully done, the mental suffering arising from it seems to be regarded as no part of the actionable injury. See 2 Car. & Payne, 292, Flemington v. Smithers. In many other cases, the law does not regard as ground of damage those effects of the defendant's act, which cannot be certainly traced to it. Contingent, possible, and even probable damages, are not regarded. 1 M'Cord, 489, 585; 1 Paine's Rep. 122. The law,' says Mr. Hammond, 'in deciding what injuries shall entitle the suffering party to redress, has contrived certain rules that are best adapted to further the general interests of society; and though such rules are chosen as best serve the end of public utility, it is impossible for them to prevent all particular inconveniences. A case therefore of peculiar hardship and distress may sometimes arise, that considered apart and by itself is an injury well deserving of recompense, but which not being comprehended within the limits of the aforesaid regulations, it will require a violation of them to compensate.' Hammond's Nisi Prius, 43, 44, (American edition.)

These

remarks are as applicable to many particular effects of the defendant's actionable conduct, as to instances of his injurious conduct which is not actionable. See 1 Campb. 58, Boyce v. Bayliffe; 8 East, 1, Vicars v. Wilcocks; Hammond's N. P. 258, 259; Stark. on Slander, 167, & seq.; 4 Greenleaf, 234, Waterhouse v. Gibson; 19 Johns. Rep. 223, Butler v. Kent; 1 Chit. Pl. 388.

Can then the injury, which the law regards as actionable, be compensated and satisfied by the recovery of a sum confessedly smaller than the injury? Or in other words (in appearance less absurd) can circumstances, which do not affect the degree of legal injury sustained, be given in evidence to mitigate or aggravate damages?

Before the direct authorities on this point are examined, it may be proper to inquire into a few unquestioned principles. It is well settled that in actions of trespass vi et armis, it is wholly immaterial to the support of the action quo animo the trespass was committed. However accidental the injury, or however strongly it may have been against the defendant's

wishes; or even if he was a lunatic, non compos mentis, or an infant under seven years of age, (and so not doli capax in legal presumption) yet he is liable to an action in this form, and to pay some damages. Whenever, by an act which he could. have avoided, and which cannot be justified in law, a person inflicts an immediate injury by force, he is legally amenable to the party injured. Hob. 134, Weaver v. Ward; T. Jon. 205, Dickinson v. Watson; T. Ray. 421, 467, Bessey & Olliot's case; Aleyn, 35, Gilbert v. Stone; Sty. 72, S. C. 1 Stra. 596, Underwood v. Hewson; Onslow's Nisi Prius, 14; 2 Hen. & Munf. 423, Taylor v. Rainbow; Bac. Ab. Infancy and Age, H.; 1 Hale P. C. 15, 16; 1 Dallas, 184, 185, per M'Kean, C. J.

Aliter, in case of an unavoidable injury. Sty. 65, Smith v. Stone; 4 Mod. 405, Gibbons v. Pepper; 2 Salk. 638, S. C.; 3 Wils. 411, per De Grey, C. J.; Hammond's N. P. 67, 68.

There are also divers instances of actions of trespass upon the case, in which the defendant is liable for an injury caused by his carelesness or inattention, though his motives are unimpeachable.

Is the plaintiff's injury any less severe, are his expense and loss any less on account of the defendant's want of malice? Are they any greater, even if his malice be felonious? Why then should smaller damages be given where malice is wanting, than where it exists? If this is allowable, what becomes of the doctrine every where advanced, that in trespass quo animo is not a subject of inquiry?

In criminal prosecutions the public are concerned, and the law is entirely different. An assault and battery, that cannot be justified nor excused in a civil suit, is not always punishable criminaliter. Actus non facit reum, nisi mens sit rea. Co. Lit. 247; Wilmot, 263; 3 Inst. 4, 5, 6; 4 Bl. Com. c. 2. Hence accidental injuries, and those committed by lunatics, &c. and infants of a very tender age, are not subject to the animadversion of criminal law. The object of punishment is the prevention of offences; not to gratify the public resentment, but to preserve the public peace. And any provocation, which directly tends to cause a quarrel, is properly shown to the court, for the purpose of mitigating punishment. Any thing which might well be pleaded in a civil suit, in justification of a battery, may be proved on the general issue, in a criminal prosecution, and will secure an acquittal.