Retributive justice

“ I come now to consider, subject to the reservation above expressed, the two justifications most often cited for the retention of capital punishment. The concept of retribution — though popular for centuries — is now criticized as unworthy of a civilized people. Yet this Court has acknowledged the existence of a retributive element in criminal sanctions, and has never heretofore found it impermissible. ”

“ If the amount of a fee is settled by law, an attorney who takes more than the legal sum does not necessarily incur the duty of restitution. All will depend on the character of the law, whether it is penal or preceptive, and if preceptive, whether it obliges in virtue of legal or of commutative justice. ”

“ The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby ”

“ It does not follow, because an unjust sentence is irreversible, that the party has lost all right to justice, or all claim, upon principles of public law, to remuneration. With reference to mere municipal law he may be without remedy. ”

“ The persons, however, who give occasion to this expense, are those who, by their injustice in one way or another, make it necessary to seek redress or protection from the courts of justice. The persons, again, most immediately benefited by this expense, are those whom the courts of justice either restore to their rights, or maintain in their rights. ”

“ At the very first blush, it seems manifest that justice requires that they should have some compensation or return for the money already paid, otherwise the companies would be the gainers from their loss ”

“ The honor and the character of the nation are concerned in repressing such irregular ties; and the justice of the court requires that compensation should be made for the injury which the libellants have sustained. ”

“ The most elementary notion of justice would seem to require that services or property furnished upon the authority of the court or its officer, acting within his authority, for the common benefit of those interested in a fund administered by the court, should be paid from the fund as an 'expense of justice.' The Phebe, 1 Ware, 354, 359, Fed. ”

“ It is for Congress to determine whether, under the circumstances of a particular case, justice requires that compensation be made to a person or corporation incidentally suffering from the exercise by the national government of its constitutional powers. ”

“ You are mistaken if you suppose that the judge will assist you: no law will make full restitution to you, you must look only to the honour of the receiver. Thus only can benefits retain their influence, and thus only are they admirable: you dishonour them if you make them the grounds of litigation, "Pay what you owe" is a most just proverb; and one which carries with it the sanction of all nations; but in dealing with benefits it is most shameful. "Pay!" How is a man to pay who owes his life, his position, his safety, or his reason to another? None of the greatest benefits can be repaid. ”

“ The expense of the administration of justice, therefore, may very properly be defrayed by the particular contribution of one or other, or both, of those two different sets of persons, according as different occasions may require, that is, by the fees of court. It cannot be necessary to have recourse to the general contribution of the whole society, except for the conviction of those criminals who have not themselves any estate or fund sufficient for paying those fees. ”

“ This reparation for an injury that has been done to another is called restitution. There is a strict obligation in justice to make restitution as far as is possible to another whom one has injured; for justice requires that each one should have his own; but one who has been injured is deprived of his own so long as restitution has not been made; and so, in order that each one may have his own, in order that that equality may be preserved which justice prescribes, restitution is of strict obligation whenever commutative justice has been violated. ”

“ The poor defendant must pay his own expense. If an individual wishes to bring a case in court, why should he not pay his own expense? Why should the Federal Government bear the expense of a person whose statement may be true or which may not be true? I can foresee untold litigation. ”

“ Is it possible under the constitutions of the states or the United States to impose upon an employer the duty of paying to an employee so much for an arm or so much for an eye without having the case come to trial in the courts? ”

“ Now justice, too, calls for a return for injuries; for, to revert to its earliest and simplest form, when a debtor does not pay his debt, the creditor may exact a substitute for it; the substitute or equivalent has been agreed upon beforehand, and the creditor has a strict right to it—the debtor's property or wife or person may become forfeit. And when injuries become offenses against the community, compensation of some sort comes to be the right of every injured person—that is, under justice also, a second injury follows the first. ”

“ If the goods are given as payment for the judge’s services during the trial, the judge sins against commutative justice in receiving payment for services already due, since his salary comes from the community and obliges him to administer justice without charge to those who seek it. Neither is it lawful to take money as compensation for trying one case before another, or for hastening a case, or for giving unusual diligence to a complicated case, or for deciding for one side when the evidence is equal on both sides. ”

“ There is a general principle of justice pervading our laws, and the laws of all free governments, which requires that whoever unlawfully and wrongfully imposes upon another the necessity of an unusual expenditure of money or labor or materials for the protection and preservation of his property, shall make complete indemnity for the expenditure. ”

“ The second form of sanctioning right—the right to pecuniary compensation or damages—is in modern law by far the more important. It may be stated as a general rule, that the violation of a private right gives rise, in him whose right it is, to a sanctioning right to receive compensation for the injury so done to him. Such compensation must itself be divided into two kinds, which may be distinguished as Restitution and Penal Redress. ”

“ We have recognized that the promise of equal justice for all would be an empty phrase for the poor, if the ability to obtain judicial relief were made to turn on the length of a person's purse. It is true that these cases have dealt with criminal proceedings. ”

“ A body of learned, cultivated men, representing the highest legal tribunal in the land, still lingered in a vague idea of earning the scant salary bestowed upon them by the economical founders of the Government, and listened patiently to the arguments of counsel, whose fees for advocacy of claims before them would have paid the life income of half the bench. ”

“ I believe the time is not distant when the evils resulting from this assumption of a power on the part of government to determine the compensation a man may receive for the use of his property, or the performance of his personal services, will become so apparent that the courts will hasten to declare that government can prescribe compensation only when it grants a special privilege, as in the creation of a corporation, or when the service which is rendered is a public service, or the property is in fact devoted to a public use. ”

“ But this equity which exists when the benefits are less than the damage affords a strong foundation for legislation requiring compensation in such circumstances. This consideration doubtless led to the legislation of the state, requiring compensation for such damage, under which the rights of the plaintiffs in error are asserted. ”

“ Justice Cooley, delivering the opinion of the court in that case, said (p. 175) :
'We have already said that the complainant should be required to do equity as a condition of relief. What is just to the public cannot be done unless he pays within due time such proportion of the tax assessed upon him as he concedes to be fair; and we think this payment should be required by the injunction master to be made to the proper officer as a condition to the allowance of injunction. ”

“ Being a public right, compensation cannot be had by private parties for any injury affecting it. The latter right is a private one, incident to the ownership of the abutting property, in the enjoyment of which such owner is entitled to the protection of private remedies afforded by the law against wrongdoers, and for which, if it is taken from him for the benefit of the public, he is entitled to compensation. ”

“ But when the employee who has recovered compensation for his injury in one state seeks a second recovery in another he may be met by the plea that full faith and credit requires that his demand, which has become res judicata in one state, must be recognized as such in every other. ”

“ If the jury were permitted to pay the plaintiffs for their special damage in general benefits enjoyed by the public as well as the plaintiffs, the result is inevitable that the plaintiffs' property was taken without compensation. ”

“ The question before us, then, is whether a District Court has jurisdiction in an injunction action brought by the Secretary of Labor under § 17 of the Act to make an award of reparations against an employer in favor of an employee, found to have been wrongfully discharged and entitled to reinstatement, for the 'wages' that he lost by being wrongfully excluded from his job. ”

“ No judge is required to pay a definite percentage of his salary, but all are commanded to return, as a part of 'gross income,' 'the compensation received as such' from the United States. From the 'gross income' various deductions and credits are allowed, as for interest paid, contributions or gifts made, personal exemptions varying with family relations, etc., and upon the net result assessment is made. ”

“ The convict, instead of being committed to work and labor as the statute provides for the state, when his fines and costs are unpaid, comes into court with a surety, and confesses judgment in the amount of fine and costs, and agrees with the surety, in consideration of the payment of that fine and costs, to perform service for the surety after he is released because of the confession of judgment. ”

“ It is natural therefore that in the Legis Actio the remuneration of the Judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a number of arbitrators by popular acclamation, it should be paid as a matter of course to the State which the Prætor represents. ”

“ Congress plainly did not intend that wealthy defendants pay more in "restitution" than otherwise warranted because they have significant financial resources, nor did it intend a defendant's dependents to be forced to bear the burden of a restitution obligation because they have great "earning ability." ”

“ It is unnecessary for us to canvass the numerous alternatives to which the State be legislative enactment-or judges within the scope of their authority-may resort in order to avoid imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs. ”

“ It is contrary to the letter and spirit of the Constitution to divest one citizen of his right, and vest it in another, without full compensation; and if the legislature may do so, upon full indemnification, it cannot of itself constitutionally determine upon the amount of the compensation. ”

“ Deductions from the earnings of a person convicted to corrective labor without deprivation of freedom are withheld in an amount fixed by sentence of the court, ranging from five to 20 percent of the earnings, and transferred to the state.
In the case of persons considered to have lost their working capacity, the court may replace corrective labor with a fine, public censure, or imposition of an obligation to make restitution for damage done. ”

“ We have no doubts concerning the power of the District Court to order respondents, in order to purge themselves of contempt, to pay the damages caused by their violations of the decree. We can lay to one side the question whether the Administrator, when suing to restrain violations of the Act, is entitled to a decree of restitution for unpaid wages. ”

“ And if, finally, the claimant should be successful, contrary to what happens in ordinary litigation between free persons, he would have to bear all the burdens and expenses of the litigation, without indemnity, and would learn, by sad ex perience, that he had by far better abandoned his right in the first instance, than to establish it at such unremunerated cost and heavy sacrifice. ”

“ A master beats his servant so that he dies of his wounds; another accidentally strikes out his servant's tooth,—the pecuniary loss of both masters is the same. If the loss of the servant's services is punishment sufficient for the crime of killing him, would God command the same punishment for the accidental knocking out of a tooth? Indeed, unless the injury was done inadvertently, the loss of the servant's services was only a part of the punishment—mere reparation to the individual for injury done; the main punishment, that strictly judicial, was reparation to the community. ”

“ No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor expressly states that it is for such additional pay, extra allowance, or compensation. ”

“ Since, then, restitution is impossible, and not a shadow of hope exists that indemnification will be granted; we have only to determine whether we shall give up the property of which we have been plundered, or claim it with effect—claim it, and enforce the claim, by showing that we have the means of retaliation within our power. ”