Sanctioning rights may be divided into two kinds by reference to the purpose of the law in creating them. This purpose is either (1) the imposition of a pecuniary penalty upon the defendant for the wrong which he has committed, or (2) the provision of pecuniary compensation for the plaintiff in respect of the damage which he has suffered from the defendant’s wrongdoing. Sanctioning rights, therefore, are either (1) rights to exact and receive a pecuniary penalty, or (2) rights to exact and receive damages or other pecuniary compensation.
The first of these kinds is rare in modern English law, though it was at one time of considerable importance both in our own and in other legal systems. But it is sometimes the case even yet, that the law creates and enforces a sanctioning right which has in it no element of compensation to the person injured, but is appointed solely as a punishment for the wrongdoer. For example, a statute may make provision for a pecuniary penalty payable to a common informer, that is to say, to any one who shall first sue the offender for it. Such an action is called a penal action, as being brought for the recovery of a penalty. But it is none the less a purely civil, and in no respect a criminal proceeding. Primarily and immediately, it is an action for the enforcement of a right, not for the punishment of a wrong. It pertains, therefore, to the civil administration of justice, no less than an ordinary action for the recovery of a debt. The mere fact that the sanctioning right thus enforced is created by the law for the purpose of punishment does not bring the action within the sphere of criminal justice. In order that a proceeding should be criminal it is necessary that its direct and immediate purpose should be punishment; it is not enough that its purpose should be the enforcement of a right which has been created by way of punishment. A proceeding is civil if it is one for the enforcement of a right, and the source, nature, and purpose of the right so enforced are irrelevant.[[93]]
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. In respect of the person injured, indeed, these two are the same in their nature and operation; but in respect of the wrongdoer they are very different. In restitution the defendant is compelled to give up the pecuniary value of some benefit which he has wrongfully obtained at the expense of the plaintiff; as when he who has wrongfully taken or detained another’s goods is made to pay him the pecuniary value of them, or when he who has wrongfully enriched himself at another’s expense is compelled to account to him for all money so obtained.
Penal redress, on the other hand, is a much more common and important form of legal remedy than mere restitution. The law is seldom content to deal with a wrongdoer by merely compelling him to restore all benefits which he has derived from his wrong; it commonly goes further, and compels him to pay the amount of the plaintiff’s loss; and this may far exceed the profit, if any, which he has himself received. It is clear that compensation of this kind has a double aspect and nature; from the point of view of the plaintiff it is compensation and nothing more, but from that of the defendant it is a penalty imposed upon him for his wrongdoing. The compensation of the plaintiff is in such cases the instrument which the law uses for the punishment of the defendant, and because of this double aspect we call it penal redress. Thus if I burn down my neighbour’s house by negligence, I must pay him the value of it. The wrong is then undone with respect to him, indeed, for he is put in as good a position as if it had not been committed. Formerly he had a house, and now he has the worth of it. But the wrong is not undone with respect to me, for I am the poorer by the value of the house, and to this extent I have been punished for my negligence.
§ 33. A Table of Legal Remedies.
The result of the foregoing analysis of the various forms assumed by the administration of justice, civil and criminal, may be exhibited in a tabular form as follows:—
| Legal Proceedings | Civil—Enforcement of rights | Specific Enforcement—enforcement of a primary right: e.g., payment of debt, or return of property detained. I. | ||
| Sanctional Enforcement—enforcement of a sanctioning right | Compensation | Restitution—return of profit unlawfully made. II. | ||
| Penal Redress— payment for loss unlawfully inflicted. III. | ||||
| Penalty: e.g., action by informer for statutory | ||||
| Criminal—Punishment of wrongs: e.g., imprisonment for theft. V. | ||||
§ 34. Penal and Remedial Proceedings.
It will be noticed that in the foregoing Table legal proceedings have been divided into five distinct classes, namely: (1) actions for specific enforcement, (2) actions for restitution, (3) actions for penal redress, (4) penal actions, and (5) criminal prosecutions. It must now be observed that the last three of these contain a common element which is absent from the others, namely the idea of punishment. In all these three forms of procedure the ultimate purpose of the law is in whole or in part the punishment of the defendant. This is equally so, whether he is imprisoned, or compelled to pay a pecuniary penalty to a common informer, or is held liable in damages to the person injured by him. All these proceedings, therefore, may be classed together as penal, and as the sources of penal liability. The other forms, namely specific enforcement and restitution, contain no such penal element; the idea of punishment is entirely foreign to them; and they may be classed together as remedial, and as the sources of remedial liability. From the point of view of legal theory this distinction between penal and remedial liability is, as we shall see, of even greater importance than that between criminal and civil liability. It will be noted that all criminal proceedings are at the same time penal, but that the converse is not true, some civil proceedings being penal while others are merely remedial.
It may be objected that this explanation fails to distinguish between penal liability and criminal, inasmuch as punishment is stated to be the essential element in each. The answer to this objection is that we must distinguish between the ulterior and the immediate purposes of the law. Proceedings are classed as criminal or civil in respect of their immediate aim; they are distinguished as penal or remedial in respect of their entire purpose, remote as well as immediate. One way of punishing a wrongdoer is to impose some new obligation upon him, and to enforce the fulfilment of it. He may be compelled to pay a penalty or damages. Whenever this course is adopted, the immediate design of the law is the enforcement of the right to the penalty or damages, but its ulterior design is the punishment of the wrong out of which this right arose. In respect of the former the proceedings are civil, not criminal; while in respect of the latter they are penal, not remedial. Penal proceedings, therefore, may be defined as those in which the object of the law, immediate or ulterior, is or includes the punishment of the defendant. All others are remedial, the purpose of the law being nothing more than the enforcement of the plaintiff’s right, and the idea of punishment being irrelevant and inapplicable.