Fay v. Parker. The origin of the provision in our bill of rights, that no person shall be liable to be tried after an acquittal for the same crime or offense, is in the fundamental liberties and constitutional rights of Englishmen; and in New Hampshire it is, said PARKER, C. J., in Pierce v. The State, 13 N. H. 567, "by reason of the constitutional provision that no person shall be tried twice for the same offense." What, then, is all this immense accumulation of common-law learning and judicial decisions, on the matter of pleas in abatement of former action pending, and pleas in bar of autrefois acquit, or autrefois convict, but an application of the principle of the English common law, as recognized and guaranteed by our bill of rights? The authorities to which we have referred, in the discussion of this branch of the case, are conclusive to the effect that - whether by virtue of the federal constitution, our own bill of rights, or the fundamental maxims of the common law the "sacred maxims" whereon, as on a rock, our liberties are planted - this privilege is secured to every American citizen, as firmly as the inalienable rights of life, liberty, or the pursuit of happiness, namely: he shall not be liable to be tried after an acquittal; nor twice punished; nor twice pu' in jeopardy for the same offense. Just as firmly is the right secured to him, that in all cases wherein he is charged with conduct such as calls for punishment for the sake of public vengeance or public example (and to him it can make no difference, so long as the blow must fall, whether it comes from the arm of the civil or the criminal law), that he shall be permitted to confront his accusers and their witnesses face to face, and not be tried upon depositions, and that he shall go free unless his guilt is proven beyond a reasonable doubt. These prerogatives our fathers brought with them from Old England, and when they became independent and free, they did not omit to record them on the magna charta of their new liberties. How shall these fundamental principles and rights be maintained, and this immunity from a double or a treble punishment for the same offense and from unconstitutional modes of trial secured in cases like the present? This defendant has committted an assault, to the damage of the plaintiffs. For the injury thus inflicted the defendant must make full reparation to the plaintiffs. He has also, by the same act, broken the public peace. For this he must atone to the criminai law. Now, this is all right and fair. The injured party will thus VOL. XVI. -42 Fay v. Parker. be fully compensated; the majesty of the State will be vindicated; the wrong-doer will receive his punishment; the public will be admonished by the example. But the defendant shall not be twice punished. If he is made to pay a fine (denominated exemplary, punitory, or vindictive damages, or smart money), besides another sum of money, required of him as damages for the injury sustained by the plaintiff, if he is made to pay this aggregate of damages and punishment to the plaintiffs, he has been just as much punished as if he had paid to the State the fine, and to the plaintiffs only that which belongs to them-compensation for their injuries. The punishment is the same to the offender, neither more nor less; the smart is neither more nor less sharp, whether the punishment inures to the benefit of an individual or of the public. If, then, he has paid to the plaintiffs, both compensatory damages and a fine by way of punishment, called exemplary damages, and he shall afterward be indicted for the same offense, how shall he escape a double punishment? Suppose he had been indicted prior to the bringing of this action, had been convicted, and paid his fine to the State: if the instructions to the jury in this case are sustained, how shall he escape a double punishment? The test by which to decide whether a person has been once tried is familiar to every lawyer. It is a test by the ordeal of pleading. In a criminal prosecution, it can only be applied by a plea of autrefois convict, or a plea of autrefois acquit. The People v. Goodwin, before cited. In a civil prosecution, it can only be a plea of former recovery in bar, or by a plea of another action pending, in abatement. These pleadings, these tests, are all parts of the common-law right, guaranteed by the constitution, that a man shall not be twice punished for the same offense. But no plea of autrefois convict, or its converse, can be pleaded in bar of a civil suit; nor can a plea of former judgment be received in abatement of an indictment. I am aware of but one case in the annals of American jurisprudence (Pendleton v. Davis, 1 Jones, 98), in which this test of pleading has been entirely disregarded, and the principle distinctly recognized and solemnly declared that a man may be punished three times for the same offense. To this eminently distinguished case further reference will be made hereafter. Fay v. Parker. Now, if the present case is within the principle or the bill of rights, or if, independent of that provision, the fundamental maxims of the common law are to be recognized in this State, there is only one course of procedure that can be adopted; that course is plain, straight, logical, lawful, and constitutional. Since the State cannot be defeated on an indictment by plea of a judgment recovered by these plaintiffs, the only method of enforcing the principle is to refuse in this suit to impose a fine as a penalty for the crime; which fine the plaintiffs are not entitled to, which they do not ask for in their writ, and which may have been, or may hereafter be, imposed in a prosecution by indictment for the same offense. Almost innumerable practical difficulties must be encountered, involving absurdities disgraceful to the administration of the science of law, destructive of the established rules of pleading, and in utter contempt of constitutional rights and time-honored principles of justice in the attempt to evade, conceal, or harmonize the incongruities resulting from an effort to recover damages in a civil action for tort, beyond and distinct from compensation to the fullest extent for all the injury which a plaintiff has sustained. Every principle and rule of pleading is violated, to begin with. In the first place, the plaintiff is awarded what he does not ask for in his writ. In the next place, the defendant is forbidden to aver, by any pleadings, that he has once paid, or been absolved from the payment, to the State, of that which the plaintiff has received without asking for it. In the third place, the defendant is not only placed in jeopardy of a double punishment for the same offense, but is punished criminally in a civil suit, upon a declaration neither sworn to nor presented by the grand jury. Then, again, as we have seen, the elementary rules of evidence are disregarded or completely demolished. The defendant may be compelled, in the civil suit, to testify against himself, in a case in which, upon his own testimony, he may be punished as a criminal. He may have depositions read against him, and thus be deprived of his constitutional right to meet the witnesses face to face. He may be convicted of, and punished for, a criminal offense upon the mere balance of evidence, although the jury may enter. tain a reasonable doubt of his guilt. Again, the constitutional right of exemption from punishment, after a pardor by the executive, is violated by the imposition of Fay v. Parker. punitive damages. The pardoning power being a constitutional power (N. H. Const., art. LII), the exemption of the pardoned criminal is a constitutional exemption. But, by the imposition of a fine in a civil action, the executive pardon and remission of the fine is ignored. Suppose this defendant shall hereafter be indicted for the offense which is the subject of this suit; of what avail will it be that he shall plead a judgment, rendered on this verdict, for exemplary damages? Suppose, in this case, as to the plaintiff's claim for damages, he had pleaded, as to any damages beyond compensation for the injury to the plaintiffs, a former acquittal or conviction on an indictment, and sentence performed by imprisonment, or a pardon for the offense, and not guilty as to the residue, as, under the authority of 11 Pick. 134, he might; in such a case could this verdict stand? Suppose, in this case, there shall be judgment rendered on the verdict for the full amount, and being in jail on execution, the defendant shall pay the amount of the special sum awarded by the jury for actual damages, and all the costs, and shall then receive a pardon from the governor and council, and bring habeas corpus ; what then? These questions are very easily propounded; but how to deal with them when they become actual and not abstract propositions, is a matter, I apprehend, of some difficulty. But another question, I fear, is quite too formidable for solu- · tion, namely, where shall be the limit to the confusion and absurdity involved in the attempt to reconcile the doctrine of vindictive and punitive damages, in a civil suit, with the sense, the reason, the logic, the symmetry of the science of jurisprudence? and what power can avail to stay the utter demolition of the constitutional safeguards placed around the people to protect them from the arbitrary despotism which would impose upon them cruel, unjust, and oppressively accumulated punishments? A few and only a few of the difficulties and practical absurdities, to which allusion has been made as resulting, or liable to result from the enforcement of this doctrine for which the plaintiffs con.end, are indicated by PERLEY, C. J., in the case somewhat analogous to the present, of Morrison v. Bedell, 22 N. H. 234, in which the plaintiff undertook, in an action of trespass, to recover the statatory penalty for cutting trees. Said PERLEY, C. J.: "The form of Fay v. Parker. action is suited to the nature of the claim. Debt is the proper remedy to recover a forfeiture, though the wrongful act be forcible in its character and a trespass at common law. * It might, doubtless, sometimes suit the views of a plaintiff to sue, and in the same action include a claim for these forfeitures. In that way, he might, perhaps, try his chance for a large amount in the shape of statutory penalty, without increasing his risk in the prosecution of his demand for the actual damages he had sustained. But the inconvenience and embarrassment of the defendant would be at least in equal proportion. He would be compelled to defend himself in the same suit against two separate charges for the same act, and these charges different in their natures, and followed by far different consequences; and, besides, the statute provides in the demand for the forfeiture a special mode of trial by proof not admissible in the other charge. The two claims are founded on the same wrongful act. How can they be conveniently or fairly tried together, when the evidence, which the statute has made competent to charge the defendant with the forfeiture, is incompetent and illegal on general principles to prove the same act in the other cause of action. Some of the inconveniences that would attend the trial of a claim for these penalties in the same suit, with a demand at common law, would be, one demand would be of a civil and the other of a criminal nature. The statute provides for a peculiar mode of trial in a suit for the penalty, and allows evidence which would be incompetent in a trial of the other demand; the limitation of the two causes of action is different, which, to be sure, is not of itself decisive, but tends still further to complicate the case. And the judgment would also be of dif ferent effect," etc. * * We have the high authority of Comyn's Digest for the general rule, that an action on a statute cannot be joined with a suit at common law. Now, suppose the legislature should enact a law, that actions on statutes might be joined with a suit at common law, and that a claim to recover a statutory penalty might be joineu with a count in trespass, or recovered in such an action without joining it or asking for it, the inconveniences, embarrassments, and absurdities suggested by Judge PERLEY would soon become intol erable; and yet, such a law, probably, would not be unconstitu tional. But suppose the legislature should, by a general law, abolish the doctrine of former acquittal and former conviction, and |