Harry Blackmun

“ While we agree with petitioners that punitive damages advance the interests of punishment and deterrence, which are also among the interests advanced by the criminal law, we fail to see how this overlap requires us to apply the Excessive Fines Clause in a case between private parties. Here the government of Vermont has not taken a positive step to punish, as it most obviously does in the criminal context, nor has it used the civil courts to extract large payments or forfeitures for the purpose of raising revenue or disabling some individual. ”

“ The barons who forced John to agree to Magna Carta sought to reduce arbitrary royal power, and in particular to limit the King's use of amercements as a source of royal revenue, and as a weapon against enemies of the Crown. [15] The Amercements Clause of Magna Carta limited these abuses in four ways: by requiring that one be amerced only for some genuine harm to the Crown; by requiring that the amount of the amercement be proportioned to the wrong; by requiring that the amercement not be so larg as to deprive him of his livelihood ”

“ Our Eighth Amendment jurisprudence has not been inflexible. The Court, when considering the Eighth Amendment, has stated: "Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions." Weems v. United States, 217 U.S., at 373, 30 S.Ct., at 551. [19] This aspect of our Eighth Amendment jurisprudence might have some force here were punitive damages a strictly modern creation, without solid grounding in pre-Revolutionary days. ”

“ In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. ”

“ Petitioners ultimately rely on little more than the fact that the distinction between civil and criminal law was cloudy (and perhaps nonexistent) at the time of Magna Carta. But any overlap between civil and criminal procedure at that time does nothing to support petitioners' case, when all the indications are that English courts never have understood the amer ements clauses to be relevant to private damages of any kind, either then or at any later time. ”

“ They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. ”

“ Hughes, 2 Mod., at 151, 86 Eng.Rep., at 994-995 (Magna Carta's amercements provisions apply in criminal, but not civil, cases) . Even after the common law had developed to the point where courts occasionally did decrease a damages award or eliminate it altogether, such action was never predicated on the theory that the government somehow had overstepped its bounds. Rather, the perceived error was one made by the jury, as determined by reference to common-law, rather than constitutional, standards. ”

“ We find it significant that other countries that share an English common-law heritage have not followed the decision in Rookes, and continue to allow punitive or exemplary damages to be awarded without substantial interference. ”

“ Within a year Kelco obtained nearly 40% of the Burlington roll-off market, and by 1982 Kelco's market share had risen to 43%. During 1982 BFI reacted by attempting to drive Kelco out of business, first by offering to buy Kelco and then by cutting prices by 40% or more on new business for approximately six months. The orders given to the Burlington BFI office by its regional vice president were clear: "Put [Kelley] out of business. Do whatever it takes. Squish him like a bug." App. 10. ”

“ A Vermont jury may award punitive damages only if the evidence supports a finding that the defendant acted with malice, see, e.g., Appropriate Technology Corp. v. Palma, 146 Vt. 643, 647, 508 A.2d 724, 726 (1986) , or "malice or wantonness shown by the act," Rogers v. Bigelow, 90 Vt. 41, 49, 96 A. 417, 420 (1916) . Punitive damages awards may be set aside if grossly and manifestly excessive. See Glidden v. Skinner, 142 Vt. 644, 648, 458 A.2d 1142, 1145 (1983) . The Vermont Supreme Court has declined to adopt a rule of proportionality between compensatory and punitive damages, Pezzano v. ”

“ In the time before Magna Carta, damages awards were rare, 2 Pollock & Maitland 523, the more usual relief being a fixed monetary payment or specific relief. But " [t] he distinction between amercements and damages is well known. The former were payable to the crown after legal action or for an error or ineptitude which took place in its course; the latter represented the loss incurred by a litigant through an unlawful act. They were payable to [the private litigant] ." 62 Selden Society, at 463.↑ "A Free-man shall not be amerced for a small fault, but after the manner of the fault ”