An early example of the modern Roman type. Roman; 16th century.
Preserved at Santa Maria Maggiore, Rome. From a photograph taken by
Father J. Braun (in _Die liturgische Gewandung_), by permission of B.
Herder.]
A silk dalmatic forms one (the undermost) of the English coronation
robes. Its use would seem to have been borrowed, not from the robes of
the Eastern emperors, but from the church, and to symbolize with the
other robes the quasi-sacerdotal character of the kingship (see
CORONATION). The magnificent so-called dalmatic of Charlemagne,
preserved at Rome (see EMBROIDERY), is really a Greek sakkos.
See Joseph Braun, S.J., _Die liturgische Gewandung_ (Freiburg im
Breisgau, 1907), pp. 247-305. For further references and illustrations
see the article VESTMENTS. (W. A. P.)
DALMELLINGTON, a village of Ayrshire, Scotland, 15 m. S.E. of Ayr by a
branch line, of which it is the terminus, of the Glasgow & South-Western
railway. Pop. (1901) 1448. The district is rich in minerals--coal,
ironstone, sandstone and limestone. Though the place is of great
antiquity, the Roman road running near it, few remains of any interest
exist. It was, however, a centre of activity in the Covenanting times.
DALOU, JULES (1838-1902), French sculptor, was the pupil of Carpeaux and
Duret, and combined the vivacity and richness of the one with the
academic purity and scholarship of the other. He is one of the most
brilliant virtuosos of the French school, admirable alike in taste,
execution and arrangement. He first exhibited at the Salon in 1867, but
when in 1871 the troubles of the Commune broke out in Paris, he took
refuge in England, where he rapidly made a name through his appointment
at South Kensington. Here he laid the foundation of that great
improvement which resulted in the development of the modern British
school of sculpture, and at the same time executed a remarkable series
of terra-cotta statuettes and groups, such as "A French Peasant Woman"
(of which a bronze version under the title of "Maternity" is erected
outside the Royal Exchange), the group of two Boulogne women called "The
Reader" and "A Woman of Boulogne telling her Beads." He returned to
France in 1879 and produced a number of masterpieces. His great relief
of "Mirabeau replying to M. de Dreux-Breze," exhibited in 1883 and now
at the Palais Bourbon, and the highly decorative panel, "Triumph of the
Republic," were followed in 1885 by "The Procession of Silenus." For the
city of Paris he executed his most elaborate and splendid achievement,
the vast monument, "The Triumph of the Republic," erected, after twenty
years' work, in the Place de la Nation, showing a symbolical figure of
the Republic, aloft on her car, drawn by lions led by Liberty, attended
by Labour and Justice, and followed by Peace. It is somewhat in the
taste of the Louis XIV. period, ornate, but exquisite in every detail.
Within a few days there was also inaugurated his great "Monument to
Alphand" (1899), which almost equalled in the success achieved the
monument to Delacroix in the Luxembourg Gardens. Dalou, who gained the
_Grand Prix_ of the International exhibition of 1889, and was an officer
of the Legion of Honour, was one of the founders of the New Salon
(_Societe Nationale des Beaux-Arts_), and was the first president of the
sculpture section. In portraiture, whether statues or busts, his work is
not less remarkable.
DALRADIAN, in geology, a series of metamorphic rocks, typically
developed in the high ground which lies E. and S. of the Great Glen of
Scotland. This was the old Celtic region of Dalradia, and in 1891 Sir A.
Geikie proposed the name Dalradian as a convenient provisional
designation for the complicated set of rocks to which it is difficult to
assign a definite position in the stratigraphical sequence (_Q.J.G.S._
47, p. 75). In Sir A. Geikie's words, "they consist in large proportion
of altered sedimentary strata, now found in the form of mica-schist,
graphite-schist, andalusite-schist, phyllite, schistose grit, greywacke
and conglomerate, quartzite, limestone and other rocks, together with
epidiorites, chlorite-schists, hornblende schists and other allied
varieties, which probably mark sills, lava-sheets or beds of tuff,
intercalated among the sediments. The total thickness of this assemblage
of rocks must be many thousand feet." The Dalradian series includes the
"Eastern or Younger schists" of eastern Sutherland, Ross-shire and
Inverness-shire--the Moine gneiss, &c.--as well as the metamorphosed
sedimentary and eruptive rocks of the central, eastern and south-western
Highlands. The series has been traced into the north-western counties of
Ireland. The whole of the Dalradian complex has suffered intense
crushing and thrusting.
See PRE-CAMBRIAN; also J. B. Hill, _Q.J.G.S._, 1899, 55, and G.
Barrow, loc. cit., 1901, 57, and the _Annual Reports and Summaries of
Progress of the Geological Survey of the United Kingdom_ from 1893
onwards.
DALRIADA, the name of two ancient Gaelic kingdoms, one in Ireland and
the other in Scotland. The name means the home of the descendants of
Riada. Irish Dalriada was the district which now forms the northern part
of county Antrim, and from which about A.D. 500 some emigrants crossed
over to Scotland, and founded in Argyllshire the Scottish kingdom of
Dalriada. For a time Scottish Dalriada appears to have been dependent
upon Irish Dalriada, but about 575 King Aidan secured its independence.
One of Aidan's successors, Kenneth, became king of the Picts about 843,
and gradually the name Dalriada both in Ireland and Scotland fell into
disuse.
See W. F. Skene, _Celtic Scotland_ (Edinburgh, 1876-1880).
DALRY (Gaelic, "the field of the king"), a mining and manufacturing town
of Ayrshire, Scotland, on the Garnock, 23(1/4) m. S.W. of Glasgow, by the
Glasgow & South-Western railway. Pop. (1901) 5316. The public buildings
include the library and reading-room, the assembly rooms, Davidshill
hospital, Temperance hall and night asylum. There is a public park. The
industries consist of woollen factories, worsted spinning, box-,
cabinet-, coke- and brick-making, machine-knitting, currying and the
manufacture of aerated waters. Coal and iron are found, but mining is
not extensively pursued. In the vicinity are the iron works of Blair and
Glengarnock, and a curious stalactite cave, known as Elf House, 30 ft.
high and about 200 ft. long, offering some resemblance to a pointed
aisle. Rye Water flows into the Garnock close to the town. Captain
Thomas Crawford of Jordanhill (1530-1603), the captor of Dumbarton
Castle, spent the closing years of his life at Dalry, where a
considerable estate had been granted to him.
DALTON, JOHN (1766-1844), English chemist and physicist, was born about
the 6th of September 1766 at Eaglesfield, near Cockermouth in
Cumberland. His father, Joseph Dalton, was a weaver in poor
circumstances, who, with his wife (Deborah Greenup), belonged to the
Society of Friends; they had three children--Jonathan, John and Mary.
John received his early education from his father and from John
Fletcher, teacher of the Quakers' school at Eaglesfield, on whose
retirement in 1778 he himself started teaching. This youthful venture
was not successful, the amount he received in fees being only about five
shillings a week, and after two years he took to farm work. But he had
received some instruction in mathematics from a distant relative, Elihu
Robinson, and in 1781 he left his native village to become assistant to
his cousin George Bewley who kept a school at Kendal. There he passed
the next twelve years, becoming in 1785, through the retirement of his
cousin, joint manager of the school with his elder brother Jonathan.
About 1790 he seems to have thought of taking up law or medicine, but
his projects met with no encouragement from his relatives and he
remained at Kendal till, in the spring of 1793, he moved to Manchester,
where he spent the rest of his life. Mainly through John Gough
(1757-1825), a blind philosopher to whose aid he owed much of his
scientific knowledge, he was appointed teacher of mathematics and
natural philosophy at the New College in Moseley Street (in 1880
transferred to Manchester College, Oxford), and that position he
retained until the removal of the college to York in 1799, when he
became a "public and private teacher of mathematics and chemistry."
During his residence in Kendal, Dalton had contributed solutions of
problems and questions on various subjects to the _Gentlemen's_ and
_Ladies' Diaries_, and in 1787 he began to keep a meteorological diary
in which during the succeeding fifty-seven years he entered more than
200,000 observations. His first separate publication was _Meteorological
Observations and Essays_ (1793), which contained the germs of several of
his later discoveries; but in spite of the originality of its matter,
the book met with only a limited sale. Another work by him, _Elements of
English Grammar_, was published in 1801. In 1794 he was elected a member
of the Manchester Literary and Philosophical Society, and a few weeks
after election he communicated his first paper on "Extraordinary facts
relating to the vision of colours," in which he gave the earliest
account of the optical peculiarity known as Daltonism or
colour-blindness, and summed up its characteristics as observed in
himself and others. Besides the blue and purple of the spectrum he was
able to recognize only one colour, yellow, or, as he says in his paper,
"that part of the image which others call red appears to me little more
than a shade or defect of light; after that the orange, yellow and green
seem one colour which descends pretty uniformly from an intense to a
rare yellow, making what I should call different shades of yellow." This
paper was followed by many others on diverse topics--on rain and dew and
the origin of springs, on heat, the colour of the sky, steam, the
auxiliary verbs and participles of the English language and the
reflection and refraction of light. In 1800 he became a secretary of the
society, and in the following year he presented the important paper or
series of papers, entitled "Experimental Essays on the constitution of
mixed gases; on the force of steam or vapour of water and other liquids
in different temperatures, both in Torricellian vacuum and in air; on
evaporation; and on the expansion of gases by heat." The second of these
essays opens with the striking remark, "There can scarcely be a doubt
entertained respecting the reducibility of all elastic fluids of
whatever kind, into liquids; and we ought not to despair of effecting it
in low temperatures and by strong pressures exerted upon the unmixed
gases"; further, after describing experiments to ascertain the tension
of aqueous vapour at different points between 32 deg. and 212 deg. F.,
he concludes, from observations on the vapour of six different liquids,
"that the variation of the force of vapour from all liquids is the same
for the same variation of temperature, reckoning from vapour of any
given force." In the fourth essay he remarks, "I see no sufficient
reason why we may not conclude that all elastic fluids under the same
pressure expand equally by heat and that for any given expansion of
mercury, the corresponding expansion of air is proportionally something
less, the higher the temperature.... It seems, therefore, that general
laws respecting the absolute quantity and the nature of heat are more
likely to be derived from elastic fluids than from other substances." He
thus enunciated the law of the expansion of gases, stated some months
later by Gay-Lussac. In the two or three years following the reading of
these essays, he published several papers on similar topics, that on the
"Absorption of gases by water and other liquids" (1803), containing his
"Law of partial pressures."
But the most important of all Dalton's investigations are those
concerned with the Atomic Theory in chemistry, with which his name is
inseparably associated. It has been supposed that this theory was
suggested to him either by researches on olefiant gas and carburetted
hydrogen or by analysis of "protoxide and deutoxide of azote," both
views resting on the authority of Dr Thomas Thomson (1773-1852),
professor of chemistry in Glasgow university. But from a study of
Dalton's own MS. laboratory notebooks, discovered in the rooms of the
Manchester society, Roscoe and Harden (_A New View of the Origin of
Dalton's Atomic Theory_, 1896) conclude that so far from Dalton being
led to the idea that chemical combination consists in the approximation
of atoms of definite and characteristic weight by his search for an
explanation of the law of combination in multiple proportions, the idea
of atomic structure arose in his mind as a purely physical conception,
forced upon him by study of the physical properties of the atmosphere
and other gases. The first published indications of this idea are to be
found at the end of his paper on the "Absorption of gases" already
mentioned, which was read on the 21st of October 1803 though not
published till 1805. Here he says: "Why does not water admit its bulk of
every kind of gas alike? This question I have duly considered, and
though I am not able to satisfy myself completely I am nearly persuaded
that the circumstance depends on the weight and number of the ultimate
particles of the several gases." He proceeds to give what has been
quoted as his first table of atomic weights, but on p. 248 of his
laboratory notebooks for 1802-1804, under the date 6th of September
1803, there is an earlier one in which he sets forth the relative
weights of the ultimate atoms of a number of substances, derived from
analysis of water, ammonia, carbon-dioxide, &c. by chemists of the time.
It appears, then, that, confronted with the "problem of ascertaining the
relative diameter of the particles of which, he was convinced, all gases
were made up, he had recourse to the results of chemical analysis.
Assisted by the assumption that combination always takes place in the
simplest possible way, he thus arrived at the idea that chemical
combination takes place between particles of different weights, and this
it was which differentiated his theory from the historic speculations of
the Greeks. The extension of this idea to substances in general
necessarily led him to the law of combination in multiple proportions,
and the comparison with experiment brilliantly confirmed the truth of
his deduction" (_A New View, &c._, pp. 50, 51). It may be noted that in
a paper on the "Proportion of the gases or elastic fluids constituting
the atmosphere," read by him in November 1802, the law of multiple
proportions appears to be anticipated in the words--"The elements of
oxygen may combine with a certain portion of nitrous gas or with twice
that portion, but with no intermediate quantity," but there is reason to
suspect that this sentence was added some time after the reading of the
paper, which was not published till 1805.
Dalton communicated his atomic theory to Dr Thomson, who by consent
included an outline of it in the third edition of his _System of
Chemistry_ (1807), and Dalton gave a further account of it in the first
part of the first volume of his _New System of Chemical Philosophy_
(1808). The second part of this volume appeared in 1810, but the first
part of the second volume was not issued till 1827, though the printing
of it began in 1817. This delay is not explained by any excess of care
in preparation, for much of the matter was out of date and the appendix
giving the author's latest views is the only portion of special
interest. The second part of vol. ii. never appeared.
Altogether Dalton contributed 116 memoirs to the Manchester Literary and
Philosophical Society, of which from 1817 till his death he was the
president. Of these the earlier are the most important. In one of them,
read in 1814, he explains the principles of volumetric analysis, in
which he was one of the earliest workers. In 1840 a paper on the
phosphates and arsenates, which was clearly unworthy of him, was refused
by the Royal Society, and he was so incensed that he published it
himself. He took the same course soon afterwards with four other papers,
two of which--"On the quantity of acids, bases and salts in different
varieties of salts" and "On a new and easy method of analysing sugar,"
contain his discovery, regarded by him as second in importance only to
the atomic theory, that certain anhydrous salts when dissolved in water
cause no increase in its volume, his inference being that the "salt
enters into the pores of the water."
As an investigator, Dalton was content with rough and inaccurate
instruments, though better ones were readily attainable. Sir Humphry
Davy described him as a "very coarse experimenter," who "almost always
found the results he required, trusting to his head rather than his
hands." In the preface to the second part of vol. i. of his _New System_
he says he had so often been misled by taking for granted the results of
others that he "determined to write as little as possible but what I can
attest by my own experience," but this independence he carried so far
that it sometimes resembled lack of receptivity. Thus he distrusted, and
probably never fully accepted, Gay-Lussac's conclusions as to the
combining volumes of gases; he held peculiar and quite unfounded views
about chlorine, even after its elementary character had been settled by
Davy; he persisted in using the atomic weights he himself had adopted,
even when they had been superseded by the more accurate determinations
of other chemists; and he always objected to the chemical notation
devised by J. J. Berzelius, although by common consent it was much
simpler and more convenient than his cumbersome system of circular
symbols. His library, he was once heard to declare, he could carry on
his back, yet he had not read half the books it contained.
Before he had propounded the atomic theory he had already attained a
considerable scientific reputation. In 1804 he was chosen to give a
course of lectures on natural philosophy at the Royal Institution in
London, where he delivered another course in 1809-1810. But he was
deficient, it would seem, in the qualities that make an attractive
lecturer, being harsh and indistinct in voice, ineffective in the
treatment of his subject, and "singularly wanting in the language and
power of illustration." In 1810 he was asked by Davy to offer himself as
a candidate for the fellowship of the Royal Society, but declined,
possibly for pecuniary reasons; but in 1822 he was proposed without his
knowledge, and on election paid the usual fee. Six years previously he
had been made a corresponding member of the French Academy of Sciences,
and in 1830 he was elected as one of its eight foreign associates in
place of Davy. In 1833 Lord Grey's government conferred on him a pension
of L150, raised in 1836 to L300. Never married, though there is evidence
that he delighted in the society of women of education and refinement,
he lived for more than a quarter of a century with his friend the Rev.
W. Johns (1771-1845), in George Street, Manchester, where his daily
round of laboratory work and tuition was broken only by annual
excursions to the Lake district and occasional visits to London, "a
surprising place and well worth one's while to see once, but the most
disagreeable place on earth for one of a contemplative turn to reside in
constantly." In 1822 he paid a short visit to Paris, where he met many
of the distinguished men of science then living in the French capital,
and he attended several of the earlier meetings of the British
Association at York, Oxford, Dublin and Bristol. Into society he rarely
went, and his only amusement was a game of bowls on Thursday afternoons.
He died in Manchester in 1844 of paralysis. The first attack he suffered
in 1837, and a second in 1838 left him much enfeebled, both physically
and mentally, though he remained able to make experiments. In May 1844
he had another stroke; on the 26th of July he recorded with trembling
hand his last meteorological observation, and on the 27th he fell from
his bed and was found lifeless by his attendant. A bust of him, by
Chantrey, was publicly subscribed for in 1833 and placed in the entrance
hall of the Manchester Royal Institution.
See Henry, _Life of Dalton_, Cavendish Society (1854); Angus Smith,
_Memoir of John Dalton and History of the Atomic Theory_ (1856), which
on pp. 253-263 gives a list of Dalton's publications; and Roscoe and
Harden, _A New View of the Origin of Dalton's Atomic Theory_ (1896);
also Atom.
DALTON, a city and the county-seat of Whitfield county, Georgia, U.S.A.,
in the N.W. part of the state, 100 m. N.N.W. of Atlanta. Pop. (1890)
3046; (1900) 4315 (957 negroes); (1910) 5324. Dalton is served by the
Southern, the Nashville, Chattanooga & St Louis, and the Western &
Atlanta (operated by the Nashville, Chattanooga & St Louis) railways.
The city is in a rich agricultural region; ships cotton, grain, fruit
and ore; and has various manufactures, including canned fruit and
vegetables, flour and foundry and machine shop products. It is the seat
of Dalton Female College. Dalton was founded by Duff Green and others in
1848, and was incorporated in 1874. Hither General Braxton Bragg
retreated after his defeat at Chattanooga in the last week of November
1863. Three weeks afterwards Bragg, in command of the army in northern
Georgia in winter quarters here, was replaced by General Joseph E.
Johnston, who, with his force of 54,400, adopted defensive tactics to
meet Sherman's invasion of Georgia, with his 99,000 or 100,000 men in
the Army of the Cumberland (60,000) under General G. H. Thomas, the Army
of the Tennessee (25,000) under General J. B. M'Pherson, and the Army of
the Ohio (14,000) under General J. M. Schofield. The Federal forces
stretched for 20 m. in a position south of Ringgold and between Ringgold
and Dalton. Johnston's line of defences included Rocky Face Ridge, a
wall of rock through which the railway passes about 5 m. north-west of
the city, Mill Creek (1 m. north-north-west of Dalton), which he dammed
so that it could not be forded, and earthworks north and east of the
city. On the 7th of May General M'Pherson started for Resaca, 18 m.
south of Dalton, to occupy the railway there in Johnston's rear, but he
did not attack Resaca, thinking it too strongly protected; Thomas, with
Schofield on his left, on the 7th forced the Confederates through
Buzzard's Roost Gap (the pass at Mill Creek) north-west of Dalton; at
Dug Gap, 4 m. south-west of Dalton, on the 8th a fierce Federal assault
under Brigadier-General John W. Geary failed to dislodge the
Confederates from a quite impregnable position. On the 11th the main
body of Sherman's army followed M'Pherson toward Resaca, and Johnston,
having evacuated Dalton on the night of the 12th, was thus forced, after
five days' manoeuvring and skirmishing, to march to Resaca and to meet
Sherman there.
See J. D. Cox, _The Atlanta Campaign_ (New York, 1882); Johnson and
Buel, _Battles and Leaders of the Civil War_ (4 vols., New York,
1887); and _Official Records of the War of the Rebellion_, series 1,
vols. 32, 38, 39, 45, 49; series ii., vol. 8.
DALTON-IN-FURNESS, a market town in the North Lonsdale parliamentary
division of Lancashire, England, 4 m. N.E. by N. of Barrow-in-Furness by
the Furness railway. Pop. of urban district (1901) 13,020. The church of
St Mary is in the main a modern reconstruction, but retains ancient
fragments and a font believed to have belonged to Furness Abbey. This
fine ruin lies 3 m. south of Dalton (see FURNESS). St Mary's churchyard
contains the tomb of the painter George Romney, a native of the town. Of
Dalton Castle there remains a square tower, showing decorated windows.
Here was held the manorial court of Furness Abbey. There are numerous
iron-ore mines in the parish, and ironworks at Askam-in-Furness, in the
northern part of the district.
DALY, AUGUSTIN (1838-1899), American theatrical manager and playwright,
was born in Plymouth, North Carolina, on the 20th of July 1838. He was
dramatic critic for several New York papers from 1859, and he adapted or
wrote a number of plays, _Under the Gaslight_ (1867) being his first
success. In 1869 he was the manager of the Fifth Avenue theatre, and in
1879 he built and opened Daly's theatre in New York, and, in 1893,
Daly's theatre in London. At the former he gathered a company of
players, headed by Miss Ada Rehan, which made for it a high reputation,
and for them he adapted plays from foreign sources, and revived
Shakespearean comedies in a manner before unknown in America. He took
his entire company on tour, visiting England, Germany and France, and
some of the best actors on the American stage have owed their training
and first successes to him. Among these were Clara Morris, Sara Jewett,
John Drew, Fanny Davenport, Maude Adams, Mrs Gilbert and many others.
Daly was a great book-lover, and his valuable library was dispersed by
auction after his death, which occurred in Paris on the 7th of June
1899. Besides plays, original and adapted, he wrote _Woffington: a
Tribute to the Actress and the Woman_ (1888).
DALYELL (or DALZIELL or DALZELL), THOMAS (d. 1685), British soldier, was
the son of Thomas Dalyell of Binns, Linlithgowshire, a cadet of the
family of the earls of Carnwath, and of Janet, daughter of the 1st Lord
Bruce of Kinloss, master of the rolls in England. He appears to have
accompanied the Rochelle expedition in 1628, and afterwards, becoming
colonel, served under Robert Munro, the general in Ireland. He was taken
prisoner at the capitulation of Carrickfergus in August 1650, but was
given a free pass, and having been banished from Scotland remained in
Ireland. He was present at the battle of Worcester (3rd of September
1651), where his men surrendered, and he himself was captured and
imprisoned in the Tower. In May he escaped abroad, and in 1654 took part
in the Highland rebellion and was excepted from Cromwell's act of grace,
a reward of L200 being offered for his capture, dead or alive. The
king's cause being now for the time hopeless, Dalyell entered the
service of the tsar of Russia, and distinguished himself as general in
the wars against the Turks and Tatars. He returned to Charles in 1665,
and on the 19th of July 1666 he was appointed commander-in-chief in
Scotland to subdue the Covenanters. He defeated them at Rullion Green
and exercised his powers with great cruelty, his name becoming a terror
to the peasants. He obtained several of the forfeited estates. On the
3rd of January 1667 he was made a privy councillor, and from 1678 till
his death represented Linlithgow in the Scottish parliament. He was
incensed by the choice of the duke of Monmouth as commander-in-chief in
June 1679, and was confirmed in his original appointment by Charles, but
in consequence did not appear at Bothwell Bridge till after the close of
the engagement. On the 25th of November 1681, a commission was issued
authorizing him to enrol the regiment afterwards known as the Scots
Greys. He was continued in his appointment by James II., but died soon
after the latter's accession in August 1685. He married Agnes, daughter
of John Ker of Cavers, by whom he had a son, Thomas, created a baronet
in 1685, whose only son and heir, Thomas, died unmarried. The baronetage
apparently became extinct, but it was assumed about 1726 by James
Menteith, a son of the sister of the last baronet, who took the name of
Dalyell; his last male descendant, Sir Robert Dalyell, died unmarried in
1886.
DAM. (1) (A common Teutonic word, cf. Swed. and Ger. _damm_, and the
Gothic verb _faurdammjan_, to block up), a barrier of earth or masonry
erected to restrain, divert or contain a body of water, particularly in
order to form a reservoir. (2) (Fr. _dame_, dame; Lat. _domina_,
feminine of _dominus_, lord, master), the mother of an animal, now
chiefly used of the larger quadrupeds, and particularly of a mare, the
mother of a foal.
DAMAGES (through O. Fr. _damage_, mod. Fr. _dommage_, from Lat.
_damnum_, loss), the compensation which a person who has suffered a
legal wrong is by law entitled to recover from the person responsible
for the wrong. Loss caused by an act which is not a legal wrong (_damnum
sine injuria_) is not recoverable, e.g. where a father loses a young
child by the negligence of a third party.
The principle of compensation in law makes its first appearance as a
substitute for personal retaliation. In primitive law something of the
nature of the Anglo-Saxon _wer-gild_, or the [Greek: poine] of the
_Iliad_, appears to be universal. It marks out with great minuteness the
measure of the compensation appropriate to each particular case of
personal injury. And there is a resemblance between the legal
compensation, as it may be called, and the compensation which an injured
person, seeking his own remedy, would be likely to exact for himself. In
such a system the two entirely different objects of personal
satisfaction and criminal punishment are not clearly separated, and in
fact, criminal and civil remedies were administered in the same
proceeding.
Under modern systems of law, the object of legal compensation is to
place the injured person as nearly as possible in the situation in which
he would have been but for the injury; and the controlling principle is
that compensation should be determined so far as possible by the actual
amount of the loss sustained. In England, civil proceedings for
reparation and criminal proceedings for punishment are with few
exceptions carefully kept separate. In Scotland, pursuit of the two
kinds of remedies in the same proceeding is possible but very rare; but
in France and other European states it is lawful and usual in the case
of those delicts which are also punishable criminally.
In the law of England the two historical systems of common law and
equity viewed compensation or reparation from two different points of
view. The principle of the common law was that the amount of every
injury might be estimated by pecuniary valuation. The idea was no doubt
derived from the old tariffs of _were_, _bot_ and _wite_, in which the
valuations were elaborate. Until 1858 (Cairns' Act) courts of equity had
no direct jurisdiction to award damages, and their business was to place
the injured party in the actual position to which he was entitled
(_restitutio ad integrum_). This difference comes out most clearly in
cases of breach of contract. The common law, with a few partial
exceptions, could do no more than compel the defaulter to make good the
loss of the other party, by paying him an ascertained sum of money as
damages. Equity, recognizing the fact that complete satisfaction was not
in all cases to be obtained by mere money payment, compelled those who
broke certain classes of contracts specifically to perform them, and in
the case of acts or defaults not amounting to breach of contract, on
satisfactory proof that a wrong was contemplated, would interfere to
prevent it by injunction; while at common law no action could be brought
until the injury was accomplished, and then only pecuniary damages could
be obtained. Since the Judicature Acts this distinction has ceased and
the appropriate remedy may be awarded in any division of the High Court
of Justice.
Under the common law damages were always assessed by a jury. Under the
existing procedure in England they may be assessed (1) by a jury under
the directions of a judge; (2) by a judge alone or sitting with
assessors; (3) by a referee, official or special, or officer of the
courts with or without the assistance of mercantile or other assessors;
(4) by a consensual tribunal such as an arbitrator or valuer selected by
the parties. Whatever the mode of assessment, it is subject to review if
the assessors have clearly mistaken the proper measure of damage.
In the case of assessment by a jury, the verdict may be set aside
because the damages are clearly excessive or palpably insufficient, or
arrived at by some irregular conduct, e.g. by setting down the sum which
each juryman would give and dividing the result by twelve. The appellate
court, however, cannot, without the consent of the parties, itself fix
the amount of damages in a case which has been submitted to a jury
(_Watt_ v. _Watt_, 1905, Appeal Cases 115).
Measure of damages.
The courts have gradually evolved certain rules or principles for the
proper assessment of damages, although extreme difficulty is found in
their application to concrete cases. A distinction is drawn between
_general_ and _special_ damages. (1) General damage is that _implied by
law_ as necessarily flowing from the breach of right, and requiring no
proof. (2) Special damage is that _in fact_ caused by the wrong. Under
existing practice this form of damage cannot be recovered unless it has
been specifically claimed and proved, or unless the best available
particulars or details have been before trial communicated to the party
against whom it is claimed.
_Contracts._--"The law imposes or implies a term that upon breach of
contract damages must be paid." The general tendency of legal decisions
in cases of contract is (i.) to make the amount of damages which may be
awarded a matter of legal certainty, (ii.) to leave to a jury or like
tribunal little more to do than find the facts, (iii.) and to revise the
assessment if it is clear that it has been made in disregard of the
terms of the contract or of the natural and direct consequences of the
breach. The measure of damage, general speaking, is the sum necessary to
place the aggrieved party in the same position so far as money will do
it as if the contract had been performed. If the breach is proved, but
the person complaining has suffered no real damage, he is entitled to
have his legal right recognized by an award of what are called _nominal
damages_, i.e. a sum just sufficient to carry a judgment in his favour
on the infraction of his rights. Nominal damages, it will therefore be
seen, are not the same as "small damages." He is, however, also entitled
to prove and recover the special or particular damage lawfully
attributable to the breach. Where the contract is to pay a fixed sum of
money or liquidated amount, the measure of damages for non-payment is
the sum agreed to be paid and interest thereon at the rate stipulated in
the contract or recognized by law.
The law is the same in Scotland and in France (Civil Code, art. 1153).
In some contracts the parties themselves fix the sum to be paid as
damages if the contract is not fulfilled. These damages are described as
_liquidated_, in Scots law _stipulated_ or _estimated_. It would be
supposed that the sum thus fixed would be the proper damages to be
awarded. And under the French Civil Code (arts. 1152, 1153, 1780) the
stipulation of the parties as to the damages to be paid for breach of a
stipulation other than for paying a sum of money is binding on the
courts. But in England, Scotland and the United States, courts disregard
the words used, and inquire into the real nature of the transaction in
order to see whether the sum fixed is to be treated as ascertained
damage or as a penalty to be held _in terrorem_ over the defaulter, and
in the latter case, notwithstanding the stipulation, will require proof
of the actual loss. In _Kemble_ v. _Farren_ (1829, 6 Bingham, 141), a
contract between a manager and an actor provided that for a breach of
any of the stipulations therein, the sum of L1000 should be payable by
the defaulter, not as a penalty, but as liquidated and ascertained
damages. Yet, the court, observing that under the stipulations of the
contract the sum of L1000, if it were taken to be liquidated damages,
might become payable for mere non-payment of a trifling sum, held that
it was not fixed as damages, but as a penalty only. The case in which an
agreed sum is most usually treated as a penalty is a bond to pay a fixed
sum containing a condition that it shall be void if certain acts are
done or a certain smaller sum paid. Another case is where a single lump
sum is fixed as the liquidated amount of damage to be paid for doing or
failing to do a number of different things of very varying degrees of
importance (_Elphinstone_ v. _Monkland Iron Co._, 1887, 11 A.C. 333).
But the courts have accepted as creating a contractual measure of damage
a stipulation to finish sewerage works by a given day (_Law_ v.
_Redditch Local Board_, 1892, 1 Q.B. 127); or to complete torpedo boats
within a limited time for a foreign government (_Clydebank Engineering
Co._ v. _Yzquierda_, 1905, A.C. 6). In this last case the law lords
indicated that the provision of an agreed sum was peculiarly appropriate
in view of the difficulty of showing the exact damage which a state
sustains by non-delivery of a warship. Where the damage is not
liquidated or agreed it is assessed to upon evidence as to the actual
loss naturally and directly flowing from the breach of contract.
In contracts for the sale of goods the measure of damages is fixed by
statute. Where the buyer wrongfully refuses or neglects to accept and
pay for, or the seller wrongfully neglects or refuses to deliver the
goods, the measure is the estimated loss directly and naturally
resulting in the ordinary course of events from the buyer's or seller's
breach of contract. Where there is an available market for the goods in
question, the measure of damages is prima facie to be ascertained by the
difference between the contract price and the market or current price at
the time or times when the goods ought to have been accepted or
delivered, or if no such time was fixed for acceptance or delivery, then
at the time of refusal to accept or deliver (Sale of Goods Act 1893, SS
50, 51).
Where there is no market, the value is fixed by the price of the nearest
available substitute. Where the sufferer, at the request of the person
in default, postpones purchase or sale, any increased loss thereby
caused falls on the defaulter. If the buyer, before the time fixed for
delivery, has resold the goods to a sub-vendor, he cannot claim against
his own vendor any damages which the sub-vendor may recover against him
for breach of contract, because he ought to have gone into the market
and purchased other goods. But this is subject to modification in cases
falling within the rule in _Hadley_ v. _Baxendale_ (1854, 9 Exchequer,
341). But trouble and expense incurred by the seller of finding a new
purchaser or other goods may be taken account of in assessing the
damages.
Where the goods delivered are not as contracted the buyer may as a rule
sue the seller for a breach of warranty, or set it up as reduction of
price. Where the warranty is of quality the loss is prima facie the
difference between the value of the goods delivered when delivered and
the value which they would have then had if they had answered to the
warranty (Sale of Goods Act 1893, S 53). In an American case, where a
person had agreed with a boarding-house keeper for a year, and quitted
the house within the time, it was held that the measure of damages was
not the price stipulated to be paid, but only the loss caused by the
breach of contract. In contracts to marry, a special class of
considerations is recognized, and the jury in assessing damages will
take notice of the conduct of the parties. The social position and means
of the defendant may be given in evidence to show what the plaintiff has
lost by the breach of contract.
On a breach of contract to replace stock lent, the measure of damages is
the price of the stock on the day when it ought to have been delivered,
or on the day of trial, at the plaintiff's option.
In contracts for the sale of realty, the measure of damage for breach by
the vendor is the amount of any deposit paid by the would-be purchaser
and of the expenses thrown away. But the purchaser may, in a proper
case, obtain specific performance, and if he has been cheated may obtain
damages in an action for deceit.
Breaches of trust are in a sense distinct from breaches of contract, as
they fell under the jurisdiction of courts of equity and not of the
common law courts. The rule applied was to require a defaulting trustee
to make good to the beneficiaries any loss flowing from a breach of
trust and not to allow him to set off against this liability any gain to
the trust fund resulting from a different breach of trust or from good
management (Lewin on _Trusts_, ed. 1904, 1146).
In estimating the proper amount to be assessed as damages for a breach
of contract, it is not permissible to include every loss caused by the
act or default upon which the claim for damages is based. The damage to
be awarded must be that fairly and naturally arising from the breach
under ordinary circumstances or the special circumstances of the
particular contract, or in other words, which may reasonably be supposed
to have been in the contemplation of the parties at the time of making
the contract. The chief authority for this rule is the case of _Hadley_
v. _Baxendale_ (1854, 9 Exch. 341), which has been accepted in Scotland
and the United States and throughout the British empire, and often
differs little, if at all, from the rule adopted in the French civil
code (art. 1150). In that case damages were sought for the loss of
profits caused by a steam mill being kept idle, on account of the delay
of the defendants in sending a new shaft which they had contracted to
make. The court held the damage to be too remote, and stated the proper
rule as follows:--
"Where two parties have made a contract which one of them has broken,
the damages which the other party ought to receive in respect of such
breach of contract should be such as may fairly and reasonably be
considered either arising naturally, i.e. according to the usual
course of things, from such breach of contract itself, or such as may
reasonably be supposed to have been in the contemplation of both
parties at the time they made the contract as the probable result of
the breach of it. Now if the special circumstances under which the
contract was actually made were communicated by the plaintiffs to the
defendants, and thus known to both parties, the damages resulting from
such contract which they would reasonably contemplate would be the
amount of injury which would ordinarily flow from a breach of contract
under these special circumstances so known and communicated. But on
the other hand, if those special circumstances were wholly unknown to
the party breaking the contract, he at the most could only be supposed
to have had in his mind the amount of injury which would arise
generally, and in the great multitude of cases not affected by any
special circumstances, from such breach of contract."[1]
The rule is, however, only a general guide, and does not obviate the
necessity of inquiring in each case what are the natural or contemplated
damages. In an action by the proprietor of a theatre, it was alleged
that the defendant had written a libel on one of the plaintiff's
singers, whereby she was deterred from appearing on the stage, and the
plaintiff lost his profits; such loss was held to be too remote to be
the ground of an action for damages. In _Smeed_ v. _Foord_ (1 Ellis and
Ellis, 602), the defendant contracted to deliver a threshing-machine to
the plaintiff, a farmer, knowing that it was needed to thresh the wheat
in the field. Damages were sought for injury done to the wheat by rain
in consequence of the machine not having been delivered in time, and
also for a fall in the market before the grain could be got ready. It
was held that the first claim was good, as the injury might have been
anticipated, but that the second was bad. When, through the negligence
of a railway company in delivering bales of cotton, the plaintiffs,
having no cotton to work with, were obliged to keep their workmen
unemployed, it was held that the wages paid and the profits lost were
too remote for damages. On the other hand, where the defendant failed to
keep funds on hand to meet the drafts of the plaintiff, so that a draft
was returned dishonoured, and his business in consequence was for a time
suspended and injured, the plaintiff was held entitled to recover damage
for such loss.
The rule that the contract furnishes the measure of the damages does not
prevail in the case of unconscionable, i.e. unreasonable, absurd or
impossible contracts. The old school-book juggle in geometrical
progression has more than once been before the courts as the ground of
an action. Thus, when a man agreed to pay for a horse a barley-corn per
nail, doubling it every nail, and the amount calculated as 32 nails was
500 quarters of barley, the judge directed the jury to disregard the
contract, and give as damages the value of the horse. And when a
defendant had agreed for L5 to give the plaintiff two grains of rye on
Monday, four on the next Monday,[2] and so on doubling it every Monday,
it was contended that the contract was impossible, as all the rye in the
world would not suffice for it; but one of the judges said that, though
foolish, it would hold in law, and the defendant ought to pay something
for his folly. And when a man had promised L1000 to the plaintiff if he
should find his owl, the jury were directed to mitigate the damages.
Interest is recoverable as damages at common law only upon mercantile
securities, such as bills of exchange and promissory notes or where a
promise to pay interest has been made in express terms or may be implied
from the usage of trade or other circumstances [Mayne, _Damages_ (7th
ed.) 166]. Under the Civil Procedure Act 1833, the jury is allowed to
give interest by way of damages on debts or sums payable at a certain
time, or if not so payable, from the date of demand in writing, and in
actions on policies of insurance, and in actions of tort arising out of
conversion or seizure of goods.
In the United States, interest is in the discretion of the court, and is
made to depend on the equity of the case. In both England and America
compound interest, or interest on interest, appears to have been
regarded with the horror that formerly attached to usury. Lord Eldon
would not recognize as valid an agreement to pay compound interest. And
Chancellor Kent held that compound interest could not be taken except
upon a special agreement made after the simple interest became due.
In Scotland compound interest is not allowed by way of damages.
_Torts._--In actions arising otherwise than from breach of contract
(i.e. of tort, delict or quasi-delict), the principles applied to the
assessment of damage in cases arising _ex contractu_ are generally
applicable (_The Notting Hill_, 1884, 9 P.D. 105); but from the nature
of the case less precision in assessment is attainable. The remoteness
of the damage claimed is a ground for excluding it from the assessment.
In some actions of tort the damages can be calculated with exactness
just as in cases of contract, e.g. in most cases of interference with
rights of property or injury to property. Thus, for wrongful
dispossession from a plantation (in Samoa) it was held that the measure
of damage was the annual value of the produce of the lands when
wrongfully seized, less the cost of management, and that the wilful
character of the seizure did not justify the infliction of a penalty
over and above the loss to the plaintiff (_McArthur_ v. _Cornwall_,
1892, A.C. 75). Where minerals are wrongfully severed and carried away,
the damage is assessed by calculating the value of the mineral as a
chattel and deducting the reasonable expense of getting it. But where
the interference with property, whether real or personal, is attended by
circumstances of aggravation such as crime or fraud or wanton insult, it
is well established that additional damages may be awarded which in
effect are penal or vindictive. In actions for injuries to the person or
to reputation, it is difficult to make the damages a matter for exact
calculation, and it has been found impossible or inexpedient by the
courts to prevent juries from awarding amounts which operate as a
punishment of the delinquent rather than as a true assessment of the
reparation due to the sufferer. And while a bad motive (malice) is
seldom enough to give a cause of action, proof of its existence is a
potent inducement to a jury to swell the assessment of damages, as
evidence of bad character may induce them to reduce the damages to a
derisory amount. In the case of injuries to the person caused by
negligence, the tribunal considers, as part of the general damage, the
actual pain and suffering, including nervous shock (but not wounded
feelings) and the permanent or temporary character of the injury, and as
special damage the loss of time and employment during recovery and the
cost of cure. It is difficult by any arithmetical calculation to value
pain and suffering; nor is it easy to value the effect of a permanent
injury; and in the Workmen's Compensation Act and Employers' Liability
Act, an attempt has been made in the case of workmen to assess by
reference to the earnings of the injured person.
In the case of such wrongs as assault, arrest or prosecution, the
motives of the defendant naturally affect the amount of general damage
awarded, even when not essential elements in the case, and the damages
are "at large." Any other rule would enable a man to distribute blows as
he can utter curses at a statutory tariff of so much a curse, according
to his rank. This position was strongly asserted in the cases arising
out of the celebrated "General Warrants" (1763) in the time of Lord
Camden, who is reported in one case to have said, "damages are designed
not only as a satisfaction to the injured person, but as a punishment to
the guilty, and as a proof of the detestation in which the wrongful act
is held by the jury." In another case he mentioned the importance of the
question at issue, the attempt to exercise arbitrary power, as a reason
why the jury might give exemplary damages. Another judge, in another
case, said "I remember a case when the jury gave L500 damages for
knocking a man's hat off; and the court refused a new trial." And he
urged that exemplary damages for personal insult would tend to prevent
the practice of duelling.
The right to give exemplary or punitive or (as they are sometimes
called) vindictive damages is fully recognized both in England and in
the United States, and especially in the following cases. (1) Against
the co-respondent in a divorce suit. This right is the same as that
recognized at common law in the abolished action of criminal
conversation, but the damages awarded may by the court be applied for
the maintenance and education of the children of the marriage or the
maintenance of the offending wife. (2) In actions of trespass to land
where the conduct of the defendant has been outrageous. (3) In actions
of defamation spoken or written, attended by circumstances of
aggravation, and the analogous action of malicious prosecution. (4) In
the anomalous actions of seduction and breach of promise of marriage.
In actions for wrongs, as in those _ex contractu_, the damages may be
general or special. In a few cases of tort, the action fails wholly if
special damage is not proved, e.g. slander by imputing to a man vicious,
unchaste or immoral conduct, slander of title to land or goods or
nuisance.
In theory, English law does not recognize "moral or intellectual"
damage, such as was claimed by the South African Republic after the
Jameson Raid. The law of Scotland allows a solatium for wounded
feelings, as does French law under the name of _dommage moral, eprouve
par la partie lesee dans sa liberte, sa surete, son honneur, sa
consideration, ses affections legitimes ou dans la jouissance de son
patrimoine_. Under this head compensation is awarded to widow, child or
sister, for the loss of husband, parent or brother, in addition to the
actual pecuniary loss (Dalloz, _Nouveau Code civil_, art. 1382). Claims
of damage for negligence are defeated by proof of what is known as
contributory negligence (_faute commune_). In other claims of tort, as
already stated, the conduct of the claimant may materially reduce the
amount of his damages.
In cases of damages to ships or cargo by collision at sea, the rule of
the old court of admiralty (derived from the civil law and preserved by
the Judicature Acts) is that when both or all vessels are to blame, the
whole amount of the loss is divided between them. The rule appears not
to apply to cases where death or personal injury results from the
collision ("Vera Cruz," 1884, 14 A.C. 59. "Bernina," 1888, 13 A.C. 1).
_Costs._--The costs of a legal proceeding are no longer treated as
damages to be assessed by the jury, nor do they depend on any act of the
jury. The right to receive them depends on the court, and they are taxed
or assessed by its officers (see COSTS). In a few cases where costs
cannot be given, e.g. on compulsory acquisition of land in London, the
assessing tribunal is invited to add to the compensation price the
owner's expense in the compensation proceedings.
_Death._--In English law a right to recover damages for a tort as a
general rule was lost on the death of the sufferer or of the delinquent.
The cause of action was considered not to survive. This rule differs
from that of Scots law (under which the claim for damages arises at the
moment of injury and is not affected by the death of either party). The
English rule has been criticized as barbarous, and has been considerably
broken in upon by legislation, in cases of taking the goods of another
(4 Edw. III., c. 7, 1330), and injuries to real or personal property (3
& 4 Will. IV., c. 42, 1833), but continues in force as to such matters
as defamation, malicious prosecution and trespass to the person. By the
Fatal Accidents Act 1846 (commonly called Lord Campbell's Act), it is
enacted that wherever a wrongful act would have entitled the injured
person to recover damages (if death had not ensued), the person who in
such case would have been liable "shall be liable to an action for
damages for the pecuniary loss which the death has caused to certain
persons, and although the death shall have been caused under such
circumstances as amount in law to felony." The only persons by whom or
for whose benefit such an action may be brought are the husband, wife,
parent and child (including grandchild and stepchild, but not
illegitimate child) of the deceased. The right of action and the measure
of damages are statutory and distinct from the right which the deceased
had till he died. It was held in _Osborne_ v. _Gillett_, 1873, L.R. 8
Ex. 88, and has since been approved (_Clark_ v. _London General Omnibus
Co._, 1906, 2 K.B. 648), that no person can recover damages for the
death of another wrongfully killed by the act of a third person, unless
he claims through or represents the person killed, and unless that
person in case of an injury short of death would have had a good claim
to recover damages.
In Scotland the law of compensation for breach of contract is
substantially the same as in England. In cases of delict or
quasi-delict, the measure of reparation is a fair and reasonable
compensation for the advantage which the sufferer would, but for the
wrong, have enjoyed and has lost as a natural and proximate result of
the wrong, coupled with a solatium for wounded feelings. The claim for
reparation vests as a debt when it arises and survives to the
representatives of the sufferer, and against the representatives of
the delinquent. In other words, the maxim _actio personalis moritur
cum persona_ does not apply in Scots law; and even in cases of murder
there has always been recognized a right to "assythement."
See also Mayne on _Damages_, 7th ed.; Sedgwick on _Damage_; Bell,
_Principles of Law of Scotland_. (W. F. C.)