Fay v. Parker. enact in terms that a man may be twice put in jeopardy for the same offense, or as often as a grand jury may find a bill, or a complainant swear to a complaint, and that a man may be repeatedly vexed for the same cause, and twice or thrice punished for the same fault; would such an act, the practical operation of which is illustrated by the proceedings in the case before us, be deemed constitutional? Probably not; but its invalidity would not result from express constitutional prohibition, any more than the undoubted invalidity of a law prescribing that private property may be taken for public use without compensation to the owner. No condition is imposed upon the right of eminent domain by our State constitution; but, nevertheless, the right to compensation for property taken under such authority is secured to the citizen by the principles of natural justice, which, it is said, is ever "the universal common law of mankind." Potter's Dwarris on Statutes, 371; Cooley's Const. Lim. 559; Bristol v. New Chester, 3 N. H. 535. The truth is, this fundamental view has been overlooked in a vast majority of the cases in which the doctrine of exemplary damages has been declared; and, if the view is sound, the precedents are not; but every adjudged case to which the constitutional objection is applicable, and in which it has been overlooked or dis regarded, involves its own elements of self-annihilation, and has no vital authority. In several instances, courts in England and America, oppressed by a sense of the injustice and wrong resulting from double punishment for a single offense, have endeavored to point out a means of doing substantial or comparative justice, by seeking to apportion the fine and punishment which the offender has incurred, between the individual personally injured and the public; thus, as the popular phrase is, "blending together the interests of society and the individual." It must be quite difficult to talk rationally or logically in this direction; but to apply the test of practical experiment, hic opus, hoc labor est. Here is an example of this kind of talk: One Davis having assaulted Mr. Pendleton in the court-house, and in the presence of the court, Mr. Pendleton sued Mr. Davis for the trespass, and recovered a verdict for "$100 actual and $1,000 exemplary damages." On motion to set aside the verdict, it was urged that the circum. Fay v. Parker. stance that the blow was given in the presence of the court should not have been left to the jury, because the defendant was liable to be fined for that as a contempt; and it was said, if the jury could take that into consideration he would be punished twice for the same thing. But, per curiam, "upon the same ground it might be insisted that a jury could not give exemplary damages when the defendant was liable to an indictment; yet it is well-settled law, that a jury may give exemplary damages in such cases. "No doubt the court, in imposing the fine, would take into consideration the fact that exemplary damages had been recovered." Pendleton v. Davis, 1 Jones, 98. "No doubt" this is all sheer nonsense. No doubt Davis deserves punishment; and he is liable and quite likely to obtain his full deserts in the shape of three punishments for the same offense. Pendleton v. Davis is bad enough as we have it, but it might have been worse; and the next case of the same kind is quite likely to be, namely, of this character: instead of rendering a divided verdict, the jury find for the plaintiff the round sum of $1,000 damages, which Mr. Davis pays. But, ever before suit brought against him, and on the instant occasion of the assault, the court fined Davis $50 for contempt, which he paid. When the court imposed that fine, did they take into consideration the fact that a suit for an assault, with a claim for exemplary damages, was impending? When the jury awarded $1,000 to the plaintiff, how much of that sum was exemplary and punitive, how much compensatory damage? How does anybody know? How is anybody to find out? Did the jury consider that the defendant had paid a fine of $50 to the county, and so award the plaintiff $50 less on that account? Who can tell, or how can any one tell? Did the jury know that Davis had been fined for the contempt ? How did they find that out? Did the court at nisi prius entertain the plea of autrefois convict for the contempt, or was the fact in Bome way disclosed by the evidence? Now, when Mr. Davis has satisfied the plaintiff's execution, no doubt he has been punished twice, very fully and without appoi tionment. And, in the fullness of time, Mr. Davis is indicted by the grand Fay v. Parker. jury for this same offense. Will the court in North Carolina permit him to plead Mr. Pendleton's judgment in bar? Probauiy not, even if it could have been averred what proportion of the gross sum had been awarded for punishment and how much for compensation. Will the court take judicial notice that there ever was any civil suit against the defendant growing out of this matter? Will they receive evidence of the fact? Suppose the maximum penalty for the offense at criminal law is a fine of $100, and the court in some way find out that Mr. Pendleton has recovered $1,000, a portion of which is for punitive damages; how are they to know whether the jury awarded $100, or $500, or $5, as exemplary damages? If they do not know, and cannot find out, "no doubt the court, in imposing the fine," will fail of accomplishing any very useful result by "taking into consideration the fact that exemplary damages have been recovered." And finally, Mr. Davis graduates from this school of adversity a sadder and wiser man, no doubt, but in the same condition of mind with which he entered upon his experience of "unmerciful disaster"—still harboring contempt of court. When it is asserted, as it has been, that "the true principle 18 that judgments in both the civil and criminal courts should operate as mutual checks upon each other, thereby increasing or diminishing the punishment in either suit," it is said much too hastily; and if only a little more reflection and consideration had been given the matter, it would not have been said at all. See Am. Law Rev. for Jan., 1873, pp. 366-368. Such a theory is altogether too fanciful, visionary and impracticable. The very recent case of Wells v. Abrahams, L. R., 7 Q. B. 554, is an admirable illustration of this. It was an action of trover and trespass for a brooch. Verdict for the plaintiff. A rule for a new trial having been obtained on the ground that it appeared from the evidence that the brooch was taken by the defendant, in such circumstances as to prove a charge of felony, and that the judge ought, therefore, to have nonsuited the plaintiff, it was held that the judge was bound to try the issues upon the record, and that he was right in not having nonsuited the plaintiff. But, pending the contention, the defendant produced an affidavit, showing that since the verdict the plaintiff had instituted criminal proceedings against the defendant for the larceny of the Fay v. Parker. brooch; and this fact created great embarrassment, as will be seen from the elaborate arguments and several opinions of the court, as reported. It seemed to be conceded that the plaintiff ought not to have maintained his civil action, if he was contemplating further proceedings under the criminal law-but he had done it; the defendant had not moved for a nonsuit, the plaintiff had gotten his verdict, and now the defendant proposed to show that, because he was a thief, and liable to be punished as such, therefore the plaintiff ought not to have had such a judgment against him. LUSH, J., said that in Lutterell v. Regnell, 1 Mod. 282, it had been expressly decided that a defendant could not, by way of plea, set up his own turpitude, and say that he had been guilty of a felony in answer to an action for trespass. And the Lord Chief Justice was well-nigh overwhelmed with the novelty and difficulty of the situation, saying: "No doubt it has been long established as the law of England, that, where an injury amounts to an infringement of the civil rights of an individual, and at the same time to a felonious wrong, the civil remedy, that is, the right of redress by action, is suspended until the party inflicting the injury has been prosecuted. But, although that is the rule, it becomes a different question when we have to consider how it is to be enforced. "It may be that the person against whom a prosecution for felony is pending may have a right in an action to show by plea that he is in the position of a felon, and so he may be able to stop the action brought by the person injured by his felonious act, although I think this is open to doubt, because the effect would be to allow a party to set up his own criminality. But it may very well be that, if an action were brought against a person who was either in the course of being prosecuted for felony, or was liable to be prosecuted for felony, the summary jurisdiction of this court might be invoked to stay the proceedings, which would involve an undue use, probably an abuse, of the process of this court, in which case the court is always willing to interfere to prevent such abuse. It may beI do not say it is so that, if a person, neglecting his duty to prosecute for an offense committed against him, were to bring an action instead of prosecuting, the court might be called upon to intervene, and to prevent the plaintiff obtaining by judgment and execution the fruits of the action thus improperly brought; but it VOL. XVI.- 43 Fay v. Parker. is unnecessary now to consider in what way this rule of law might be enforced." BLACKBURN, LUSH and QUAIN, JJ., severally encountered and grappled with the difficulty, but after long struggle and contenticn, the conclusion of their discussion culminated in such despairing declarations as: "I am not prepared to say so and so ;” “I cannot find any case to this effect;" "I do not see how a plaintiff can be prevented from trying his action;" "I know of no instance in which the court has interfered, but I apprehend it might do so;" "I do not very clearly see" this or that; "I am at a loss to find any case" similar; "I do not see how the judge at nisi prius could stay proceedings," etc., etc., etc. And so, at last accounts, the court of Queen's Bench was still sitting hopelessly involved in the meshes of what Mr. Justice QUAIN declared to be "utterly inconsistent positions." Now, why all this unnecessary trouble, confusion, and perplexity when the course of procedure should be plain, straight, and uninterrupted? The true rule, simple and just, is to keep the civil and the criminal process and practice distinct and separate. Let the criminal law deal with the criminal, and administer punishment for the legitimate purpose and end of punishment, namely, the reformation of the offender and the safety of the people. Let the individual whose rights are infringed, and who has suffered injury. go to the civil courts and there obtain full and ample reparation and compensation; but let him not thus obtain the "fruits" to which he is not entitled, and which belong to others. Why longer tolerate a false doctrine, which, in its practical exemplification, deprives a defendant of his constitutional right of indictment or complaint on oath before being called into court? deprives him of the right to meet the witnesses against him face to face? deprives him of the right of not being compelled to testify against himself? deprives him of the right of being acquitted, unless the proof of his offense is established beyond all reasonable doubt? deprives him of the right of not being punished twice for the same offense? Punitive damages destroy every constitutional safeguard within their reach. And what is to be gained by this annihilation and obliteration of fundamental law? The sole object, m its practical results, seems to be, to give a plaintiff something which he does not claim in his declaration. If justice to the plaintiff required |