the immortal verse of Homer, the matchless eloquence of Demosthenes for the forms of ideal beauty which sprung into existence from the pencil of Apelles, and the chisel of Praxiteles-becausethat civilization has forever passed away, and there" is living Greece no more”?

No; we must not attempt to fathom the inscrutable ways of Providence, nor to set ourselves up as judges of the motives and intentions of Deity. This thought is beautifully illustrated in a recently published little poem of the great American sculptor, scholar, poet, whose reputation has even added lustre to the great name of Story:

I stand on the field of defeat,

In the shadow midst those who have fallen,
Who have held to their faith unseduced

By the prize that the world holds so high;
Who have dared for a great cause to suffer,
Resist, fight-if need be, to die.

"Speak, History! Who are life's victors?
Unroll thy long annals and say.

Are they those whom the world called victors,
Who won the success of a day?—

The Martyrs, or Nero? the Spartans who fell

At Thermopyla's tryst?

Or the Persians and Xerxes? his judges,
Or Socrates? Pilate or Christ?"

My task is done. If this humble tribute to the virtues, attainments, services, of Petigru and Legaré has satisfied

you that this Association should "cherish their names and keep their memories green," I am more than content. And I trust that these sketches of those who have gone before us will give us a more decided interest in the personelle of our profession, and that we will feel more pride and satisfaction in contemplating its history and its traditions,

"If we but remember, only

Such as these have lived and died."

PAPER

READ BY

GUSTAVE KOERNER.

The Doctrine of Punitive Damages, and its Effect on the Ethics of the Profession.

If any of our state legislatures were to pass a law enacting that a plaintiff in any action for an injury inflicted on his person or property by the defendant, either from willfulness or culpable negligence, should not only recover full compensation for the injury suffered, but that the defendant should be fined in addition in any sum fixed by the discretion of the jury, not exceeding the damages claimed, said fine to be paid to the plaintiff, I am inclined to believe that intelligent persons outside of the legal profession-perhaps even some inside of it-would be somewhat startled. And yet such a law would be only a statutory enactment of the law as laid down by the courts of Great Britain and the United States for ages past. It is true that when declared from the bench it is not often presented in its nakedness, but is more or less enwrapped in circumlocution; nevertheless there is no distinction whatever, in principle, between the court law and the law as expressed in the statute we have imagined to have been passed.

One of the most able and luminous of our legal writers has undertaken to show that the decisions of the courts regarding this principle have been really misunderstood. He has traced the judicial sayings back to more than a

hundred years ago, and has endeavored to show that when the language of the judges is stripped of their mere obiter dicta, there remains no more than the recognition of the perfectly just principle that a plaintiff is entitled to no more than a satisfaction or compensation from the defendant, commensurate with the injury received.

With all due deference to Professor Greenleaf, I have no hesitation in saying that upon authority he is wrong, however right he may be (and I think is) on principle. To a reflecting mind the doctrine of allowing more than a compensation for the injury suffered, in any case, seems to be unjust and illogical.

The word "damage" is derived from damnatio, which the Pandects tell us is derived from deminutio. This deminutio is to be made good by the interposition of the law.

Some very able judges, while upholding the doctrine of punitive, vindictive, or exemplary damages as being sanctioned by authority, have done so very reluctantly. So Judge Ryan, of the Michigan Supreme Court, remarked, in the case of Bass vs. Chicago & N. W. R. R. Co.: "I always regretted that this court adopted the rule of punitory damages. It is difficult in principle to understand why, when a sufferer by a tort has been fully compensated, he should ever have anything more. And it is equally as difficult to understand why, if the tortfeasor is to be punished by exemplary damages, they should go to the compensated sufferer, and not to the public, in whose behalf he is punished."

Such sayings of eminent judges might be multiplied. But thus far this court-made law has not been changed.

One of the greatest objections, however, to the doctrine of punitive damages, in my opinion, consists in this: When a man is fined for the commission of an offense, at least where the fine is a heavy one, the accusation against him is, as a

general rule in the United States, first submitted to a grand jury, which is supposed to carefully examine the evidence against him before they find an indictment. Upon indictment found, his case is submitted to another jury.

ever.

In the trial-before which he enjoys, as a rule, a large privilege of peremptory challenge, and is surrounded by a great many safeguards denied to him in a civil action-a mere preponderance of testimony does not convict. His guilt must be proved beyond a reasonable doubt. It cannot be objected that in civil cases for damages that part which is intended as a punishment is never very large. An examination of the reports, both in England and in our country, shows that in a great number of cases that part has amounted to many thousands of dollars, sufficient in many cases, if given against an individual, to ruin him and his family forCorporations, however (always supposed to be very rich), have been the greatest sufferers. How often have judgments of ten thousand and more dollars been given against railroads for some rude or tortious conduct of some subordinate who had acted, while in the line of his employment, willfully, but without their consent or sanction, and often against their direct instructions? As a general thing, the sympathies of juries know of no bounds, when a tort has been committed by a corporation against an individual; while they are rather indulgent when the tortfeasor-particularly when made responsible for an act of his employé-happens to be one of their own class, and when their sympathies can be gratified at the expense of somebody else. But heavy damages have not been found against corporations only, but against individuals also. The formerly very common crim. con. cases in England resulted in verdicts amounting in some cases to twenty thousand pounds and more, and heavy damages have been assessed in our country. Only a few months ago a lady recovered in one of the Western states a