The law fixes a maximum punishment for criminal offenses, and in this state the presiding judge determines the extent thereof, where a discretion is given; but, under the rule we are considering, the jury are entirely free from control, except through the Court's poweralways unwillingly exercised to set aside the verdict; they may, for an offense which is punishable under criminal statutes by one hundred dollars fine, at most, award as a punishment many times that

sum.

And, finally, when the defendant has been punished in the civil action, he is denied the privilege of pleading such expiation in bar of a criminal prosecution for the same offense. He can hope for no executive clemency in the civil suit; and if imprisoned upon the second conviction under the authorities, habeas corpus does not lie to aid him.

The incongruities of this proceeding are not confined to the criminal branch of the law. Civil actions are instituted for the purpose of redressing private wrongs; it is the aim of civil jurisprudence to mete out as nearly exact justice as possible, between contending litigants; there ought to be no disposition to take from the defendant or give to the plaintiff more than equity and justice require.

Yet, under this rule of damages, these principles are forgotten, and judicial machinery is used for the avowed purpose of giving plaintiff that to which he has no shadow of right. He recovers full compensation for the injury to his person or property; for all direct and proximate losses occasioned by the tort; for the physical pain, if any inflicted; for his mental agony, lacerated feelings, wounded sensibilities; and then, in addition to the foregoing, he is allowed damages, which are awarded as a punishment of defendant and example to others.

Who will undertake to give a valid reason why plaintiff, after being fully paid for all the injury inflicted upon his property, body, reputation and feelings, should still be compensated above and beyond, for a wrong committed against the public at large. The idea is inconsistent with sound legal principles, and should never have found a lodgment in the law.

The reflecting lawyer is naturally curious to account for this "heresy" or "deformity "as it has been termed. Able and searching investigations made by both jurist and writer disclose the following facts concerning it, viz: That it was entirely unknown to the civil law; that it never obtained a foothold in Scotland, that it finds no real sanction in the writings of Blackstone, Hammond, Comyns or Rutherforth; that it was not recognized in the earliest English cases, that the supreme court of New Hampshire, Massachusetts, Indiana, Iowa, Nebraska, Michigan and Georgia, have rejected it in whole or in part; that of late other states have falteringly retained it because "committed" so to do; that a few years ago it was correctly said, "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 propositions' and that the rule is

comparatively modern, resulting in all probability from a misconception of impassioned language and inaccurate expressions used by judges in some of the earlier English cases: See Professor Greenleaf's response to Mr. Sedgwick's criticism of the former's views on this subject: 2 Greenleaf's Ev., p. 235, et seq; also, the opinion of the court delivered by Mr. Justice Foster in Foy v. Parker, 53 N. H., 342, and other authorities cited at the end of this discussion. Mr. Parsons, while with evident reluctance, sanctioning the rule,' makes the following declaration. "We cannot believe that it was ever a principle of the ancient and genuine common law that damaages should be punishment, or that the civil remedy for the wrong done should be punitive to the wrong doer as well as compensative to the sufferer:" 3 Parsons on Contracts, 6th ed., 171.

The words "smart money," and also the following adjectives have been used to designate this class of damages: speculative, imaginary, presumptive, exemplary, vindictive and punitive or punitory. The literal meaning of all but the last three is easily reconcilable with the idea of compensation; they were so used in the first place, and even as to the excepted ones, there are many cases wherein it is evident they were employed without any intentional reference to punishment. These words also came into use through the beneficent design of courts to distinguish between private wrongs with and those without an evil intent, and to extend the right of recovery in the former case to injuries excluded from computation in the latter.

Mr. Justice Foster concludes a discussion of the expression smart money, as used by Grotius and jurists contemporary with that author, in the following language:

"It is interesting as well as instructive to observe, that one hundred and twenty years ago the term smart money was employed in a manner entirely different from the modern signification which it has obtained, being then used as indicating compensation for the smarts of the injured person, and not as now, money required by way of punishment, and to make the wrong-doer smart?" Jay v. Parker, supra.

So long as the jury are considering the material pecuniary injury, direct or approximate, shown by the evidence, and the physical pain, their inquiry relates to what are termed actual damages; but when authorized by a vicious intent of the wrong-doer, they turn to the realm of mental anguish, public indignity, wounded sensibility, etc., the damages awarded may more appropriately be described as presumptive, speculative, or imaginary. The injury in the latter case is no less actual or real than in the former, but it is less tangible; compensation therefor is more a matter of judgment, less a result of computation. A misapprehension seems sometimes to exist as to the word compensatory when used in this connection. Under the rule limiting them to compensatory damages, juries will, with proper instruction, recognize a broad distinction between a tort unaccompanied by malice, or circumstances of aggravation or disgrace, and one producing equal direct pecuniary damage, where either of these condi

tions exist. In the former case they consider only the actual injury to the person or property, including expenses, loss of time, bodily pain, etc., occasioned by the wrongful act; in the latter, they allow such additional sum as in their judgment is warranted by the circumstances of contumely, anguish or oppression; but in both instances the damages are awarded as compensation; the additional sum is given to the individual as recompense for the mental suffering, or wounded sensibilities, as the case may be. It often happens that this constitues the principal element of the recovery. If upon a crowded thoroughfare one maliciously assaults me with blows and epithets, five dollars may fully compensate the injury inflicted to my person and clothing; but five hundred dollars may be utterly inadequate to requite the sense of insult, the personal indignity, the public disgrace and humiliation. The extra five hundred dollars exacted may operate indirectly as a punishment; it may constitute an example to others, and also deter my assailant himself from repetitions of the offense in future; in law, however, it is simply compensation for the private wrong; a kind of indemnity which probably no court has ever refused to allow when warranted by the circumstances.

But, under the doctrine of exemplary damages, as announced by the instruction given in this case, the jury are not required to stop with the five dollars for material injury, and five hundred dollars for lacerated feelings. They may turn to the domain of criminal law, and consider the public wrong; and they may add one thousand dollars more, as a punishment to my assailant. The arrangement is highly satisfactory to me, since I have the pleasure of pocketing the additional thousand dollars, to which I am not entitled. as we have already seen, it hardly comports with correct legal principles.

But,

The case at bar furnishes a good illustration of the doctrine under discussion. The jury are told that, if they find certain facts to exist, they may award damage to plaintiff, for: 1st; The actual pecuniary loss sustained; 2d, The peril occasioned in regard to personal liberty; 3d, The injury to his person and liberty; 4th, Injury to his feelings and reputation; 5th, The punishment of defendant.

The first four items comprise all the injuries for which plaintiff ought to reover; they all rest upon the theory of compensation for private wrong, and are, therefore, in perfect harmony with the principles and procedure in civil actions; they furnish ample ground for discrimination by the jury, should they find the prosecution and imprisonment to have been malicious. Why not remit the punishment of defendant to a criminal forum?

The jury returned a verdict for two thousand seven hundred and eighty dollars. How much of this sum was given as a punishment? Perhaps one thousand dollars, perhaps more; yet, under our criminal code, five hundred dollars would have been the maximum. When defendant is on trial in the criminal court, he cannot plead

in bar, payment of this penalty; he must, if convicted, discharge the additional fine assessed, or go to jail, if such be the sentence. Whatever may be the technical distinctions, he is in fact twice prosecuted, twice convicted, and twice punished for the same offense. And one of these prosecutions, convictions and punishments is had without any regard for the leading principles obtaining in criminal procedure.

Concerning defendant's liability to indictment for false imprisonment, under our statute, see Slomer v. People, 25 Ill., 70.

We are not prepared to say, with Mr. Field, that the controversy of the books about compensatory and exemplary damages "is one which relates more to the use of terms than to practical results": Field on Damages, section 73. Nor with Judge Cole, of Iowa-for whose legal acumen and views we entertain profound respect-that the difference, on this subject, between Professor Greenleaf and Mr. Sedgwick, may be only a controversy as to the terminology of the law, rather than as to the extent of the right of recovery or the real measure of damages.

These remarks must be based upon the supposition that the jury would award as heavy damages under the liberal rule of compensation above stated, as they would with with the added element of punishment, a conjecture which, it seems to us, is hardly defensible from a legal standpoint. We deem no further argument necessary to show that the question is one of weighty importance; that it affects the fundamental distinctions between civil and criminal procedure; that it bears directly upon the legal rights, and in many cases, also, upon the constitutional rights of the citizen.

In some of the states, courts distinguish between cases where the tort is punishable as a crime, and those where it is malicious, but not so punishable, exemplary damages being denied in the former, but allowed in the latter: See Sutherland on Damagss, p. 738 and cases cited.

This distinction rests upon the constitutional and humane objections to dual prosecutions and punishments for the same offense; but grave doubts may justly exist as to the wisdom of preserving it. The impropriety of judicially recognizing as criminal, that, which is not so by statute or at common law, the incongruity and confusion arising from trial and punishment under the rules of evidence, pleading and practice controlling in civil actions; the injustice of denying defendant the benefit of principles and procedure maintained in criminal prosecutions; the manifest iniquity of awarding plaintiff something to which he is not entitled. These and other considerations may prove so powerful as ultimately to undermine everywhere, the distinction above mentioned.

It may in the end be considered safer and better in all cases, to keep the two forums separate and distinct; to let the public protect itself through legislation and the principles of the common law. is not unlikely that courts will in the course of time generally condemn the practice of blending the interests of the individual with

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those of society, using a purely private action to redress a public wrong.

The most difficult cases in which to exclude the rule of damages as a punishment, are those where its application rests upon gross negligence, and where no criminal prosecution can be sustained; there is often a feeling that complete justice cannot be done without punitive satisfaction. But those courts which adhere to the doctrine of exemplary damages in general, are by no means unanimous in applying it to this class of cases, and when so applied, the most guarded language is used and the most careful limitations are imposed; it is said that the negligence must be "flagrant and culpable;" so much so that malice may well be inferred or imputed to defendant:" Field on Damages, section 84, and cases cited.

Why may not even this class of cases be safely limited to the rule of compensation? Is not this doctrine, as above explained, sufficient to meet all the reasonable demands of justice?

But it is sufficient for us to say that in the case at bar, the objections to double prosecutions and punishments for the same offense are decisive. As already suggested, the distinction above considered is not merely verbal. It makes but little difference what adjective or expression is used to designate the damages beyond those termed actual, which may be awarded by the jury for injury to the feelings when the wrong is accompanied by malice, provided, the instructions clearly indicate the proper limitation. But it is believed safer not to employ the words exemplary, vindictive, punitory or either of them; as there is danger of misapprehension growing out of their literal meaning, notwithstanding the accompanying explanations of the court.

It has been with no little reluctance that we have arrived at the foregoing conclusion as to the doctrine of punitive or exemplary damages.

The persuasive reasons and strong array of authorities in support of the rule, the corresponding convictions of a large part of the bench and bar of the state, and the confusion that may exist for a time, have impelled us to the most careful and conservative deliberation. But we feel that the doctrine of compensation as explained, is more in consonance with the reason, the logic, the science of the law; that it is more in harmony with the dictates of equity and justice; and that the tendency of the courts and writers is favorable to its exclusive adoption; more correctly speaking, re-adoption. We deem it wiser to accept and declare the rule now than to resist for a time, and ultimately be compelled to do so, when the confusion produced would be tenfold greater than at present is possible.

Upon these subjects embraced by the foregoing discussions, see the following authorities supporting or opposing the views adopted in this opinion: 2 Greenleaf's Evidence, 13 ed., text notes and cases, p. 235, et seq; 1 Sutherland on Damages, text notes and cases, p. 716, et seq; Field on Law of Damages, text notes and cases, p. 64, et seq; Sedgwick on Meas. of Damages, 6th ed., text notes and cases,

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