Fay v. Parker.

These private prosecutions by appeal, so called, and which involved not only cases of homicide, but also of treason and felony, were gradually discontinued, or abolished by statute, though, to some extent, they were still recognized as legal remedies in the days of Blackstone. But they were plainly regarded by that eminent jurist as violative of the fundamental maxims of the law; for he says: "These appeals may be brought previous to any indictment, and if the appellee be acquitted thereon, he cannot be afterward indicted for the same offense." And, again: And, again: "If he hath been found guilty of manslaughter on an indictment, and hath had the benefit of clergy, and suffered the judgment of the law, he cannot afterward be appealed; for it is a maxim in law that ' nemo bis punitur pro eadem delicto." 4 Bl. Com. 312-315.

In trespass the old process was a capias, and a fine was set in proportion to the degree of the offense, and levied by capiatur. Com. Dig., Action, G, 2. This practice, by which a fine to the king for a breach of the peace was recoverable in the same suit in which the plaintiff sought damages for his personal injury, was never adopted in this country. And by statute 5 & 6 Wm. III, c. 12, the practice was abolished in England, that statute having enacted that "no capias pro fine shall be prosecuted against the defendant, either in trover, ejectment, assault or imprisonment." Lindsey v. Clarke, 5 Mod. 285. See Morrison v. Bedell, 22 N. H. 234, 244.

Prior to the statute of Wm. III, it is believed no case can be found in which the suggestion of exemplary, punitive or vindictive damages, or any thing about smart money, is contained.

It is possible that the notion of punishing an offender by damages ultra compensation, in a civil suit, may have originated in an effort thus to evade the statute of Wm. III.

The provision of our federal constitution, that no man shall be twice put in jeopardy of life or limb, is by no means to receive such a construction as would permit a man to be twice tried for any offense other than such as is actually punishable by loss of life or limb. At the time of the adoption of the amendment which incorporates this provision, I suppose there was no State in the Union which prescribed any punishment of limb to guard against which the constitutional provision should have been intended. But the provision was no doubt adopted from ancient English statutes, in which the expression occurred-statutes in practical operation when such punishments were inflicted; for in times anterior to the

Fay v. Parker.

Norman conquest, most, if not all, felonies were punishable with death, unless redeemed by the weregild. 1 Hale's P. C. 12, note; and in the time of Wm. I and Wm. II, many felonies were punished by loss of limb. See argument of Emmett, in the People v. Goodwin, 18 Johns. 187, and cases there cited; but, per SPENCER, C. J., he expression jeopardy of limb, in the constitution, "was used in reference to the nature of the offense, and not to designate the punishment for an offense. Punishment by deprivation of limb would be abhorrent to the feelings and opinions of the enlightened age in which the constitution was adopted. We must understand the term 'jeopardy of limb' as referring to offenses which in former ages were punishable by dismemberment, and as intending to comprise the crimes denominated, in the law, felonies.

"The question then recurs, what is the meaning of the rule that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb? Upon the fullest consideration which I have been able to bestow on the subject, I am satisfied that it means no more than this: that no man shall be twice tried for the same offense."

In Whitney v. Hitchcock, 4 Den. 461, which was trespass for an indecent assault, the court remark: "The general question, what damages can be recovered by way of punishment in the class of actions where exemplary damages are usually given, is not involved here. It might be difficult to reconcile what has been said in the books with any definite principle, but we do not intend to express any opinion upon that subject in this case. The present suit is brought for the loss of the services of his servant, which the plaintiff says he has sustained in consequence of the injury which the defendant has inflicted upon her. This he is entitled to recover; and if sickness had followed, he could have claimed to be reimbursed for the expenses attending such sickness; but we all think he cannot recover beyond his actual loss. The young female can herself maintain an action in which her damages may be assessed; and if the father could likewise recover them in this case they would be twice claimed in civil actions, and the defendant would also be liable to indictment."

In Fox v. Ohio, 5 How. 435, McLEAN, J., remarks: "There is no principle better established by the common law, none more fully recognized in the federal and State constitutions, than that an individual shall not be put in jeopardy twice for the same offense."

Fay v. Parker.

This, it is true, applies to the respective governments; but its spirit applies with equal force to a double punishment for the same act by a State and the federal courts.

And Judge STORY says this constitutional prohibition is but a recognition of an old maxim of the common law, and therefore we are to resort to the common law to ascertain its true meaning. He also refers to another provision of the federal constitution: "No fact once tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." Art. 7 of the Amendments.

The only modes of making this re-examination known to the common law are by a writ of error and a new trial. United States

▼. Gilbert, 2 Sumn. C. C. 19, and see Parsons v. Bedford, 3 Pet. 433, 448.

In U. S. v. Gilbert, Judge STORY is treating of the application of the constitutional provision and of the common-law maxim to a capital case, which that was. He does not, however, indicate that there is any such restriction; and in Com. v. Purchase, 2 Pick. 521, at p. 523, PARKER, C. J., says: "There is no difference, in relation to this question, between felonies which are capital and those which are not. All felonies, whether capital or otherwise, are included in the provision" of the amendment to the constitution.

The learned author of "Legal Maxims" and the "Commentaries on the Common Law" recognizes the identity of these maxims, and the language of our United States constitution, when he says: "It is a principle designated by Lord CAMPBELL as a 'sacred maxim,' that nemo bis vexari debet eadem causa pro no man ought to be twice tried or brought into jeopardy of his life or liberty more than once for the same offense." Broom's Com. 992. And Lord CAMPBELL, in Reg. v. Bird, 2 Denison's Cr. Cas. 222, remarks: "It is only the ignorant and the presumptuous who would propose that a man should be liable to be again accused, after a judgment regularly given pronouncing him to be innocent."

I presume no one will now contend that the constitutional pro vision against a second jeopardy is restricted to capital cases. Jeopardy of limb, if it has any technical meaning, can, at most, be applied to restraint of limb, i. e., deprivation of liberty; for, as we have seen, dismemberment could not have been contemplated, since such a punishment had not existed for ages before, at the

Fay v. Parker.

common law, except the loss of a hand for striking in the king's courts.

Putting a person on his trial for any offense, the result of the trial for which may subject him to a fine or recognizance, for default of the payment or procurement of which his liberty may be jeopardized, is putting him in jeopardy of limb, that is, of personal restraint, of imprisonment.

The word jeopardy, in its legal as well as etymological sense, means danger or hazard.

Therefore, to punish a defendant civilly, by fine, is to violate not only the constitutional immunity, and also the synonymous maxim of the common law, nemo debet bis puniri, but also the other maxim (also synonymous), nemo debet bis vexari pro una et eadem

causa.

These maxims apply both to civil and criminal proceedings.

Said LUSH, J., in Winsor v. The Queen, Law Rep., 1 Q. B. 289, 325: "I think it is clear that there is no distinction between the two as to the applicability of the fundamental rule; whenever it applies, it applies to both. The rule can be illustrated or interpreted by referring to the plea which would raise the defense the plea of autrefois acquit, or its converse in a criminal case, or a plea of judgment recovered, or its converse in a civil action. The meaning of the maxim nemo debet bis vexari is, that where the matter has been once litigated and brought to an end by the proceedings having gone on to a termination, the verdict or judgment shall be a bar to a second trial or litigation upon the same matter."

In the same case, BLACKBURN, J., said: "This rule of law means that a man shall not he vexed again for the same offense, after a previous decision upon it."

If, then, this constitutional prohibition of a double penalty is indeed nothing more than an affirmation of the general principle of the common law, applicable alike to civil and criminal cases, making a judgment in one action a bar to another action, founded on the same cause, it follows, logically, that punitive damages are a violation of the general principle of the common law as well as of the constitution, unless indeed they shall be subject to this important condition, that they cannot be given when a fine has been previously imposed in a criminal prosecution; and, when they have been giver. first in a civil suit. then a fine cannot be imposed for the same cause in a criminal prosecution. This would result in a

Fay v. Parker.

party's entire exemption from such satisfaction as is supposed to be due to the violated peace and dignity of the State in the latter case, and in both cases would seem inevitably to lead to a development in the art and a procedure in the practice of pleading, which, while amusing for its novelty, illustrates to minds regardful of legal simplicity, symmetry and correctness, the absurdity of the confusion of the doctrine.

Whoever heard, or expects to hear, or hopes to hear of a plea of autrefois acquit or autrefois convict in answer to a civil suit? or the plea of judgment in a civil suit, in abatement of an indictment for crime?

The provision against a double jeopardy is not incorporated into the constitution of New Hampshire, as it is in the fundamental law of many States of the Union. Why not? Because, in the first place, the provision of our bill of rights is equivalent; secondly, because the maxim of the common law is recognized, independently of any constitutional or statutory provision, as lying at the very foundation of human rights and privileges — a law of nature, and of obvious common sense and common justice.

So, also, the provision, expressly declared in the constitution of some States, that private property shall not be taken for public use without compensation, is not to be found in our constitution, but it is supplied by construction; for, said RICHARDSON, C. J., in Bristol v. New Chester, 3 N. H. 535, "natural justice speaks on this point, where our constitution is silent." See Sedgwick on Statutory and Constitutional Law, 494.

The constitutional right is merely a re-enactment or affirmation of the common-law right (probably regarded in England a constitutional right), enforced by plea of autrefois acquit, or autrefois convict, in bar of a suit in a criminal case, and by plea in abatement of the pendency of a former suit in a civil case. Its adoption in the constitution of the United States is evidence of what the common law was. 1 Whart. Cr. Law, § 573 (6th ed.); The King v. Mawbry, 6 Term, 638; The King v. Sutton, 5 B. & Ad. 52; Com. v. Anthes, 5 Gray, 207, 221, 230; 1 Bennett & Heard's L. C. C. (2d ed.) 440, 482, 513, 554, 592, 612; 6 Com. Dig, Pleader, R. 17; 1 Saund. Pl. & Ev. 21; 2 Hale's P. C., ch. 31, 32; 3 Waterman's Arch. Cr. Pl. & Pr. 111-123; Cooley's Const. Lim. 321; Latham v. The Queen, 5 Best & Smith, 641; Parker v. Colcord, 2 N. H. 36; Benrett v. Chase, 21 id. 581, 584; Gamsby v. Ray, 52 id. 513.