*365Concurring Opinion by
Mr. Justice Williams.I concur in the judgment entered in this case, but upon one question I find that I am not in accord with my brethren. I would go further than they are yet ready to go and sustain another assignment of error.
The learned judge of the court below instructed the jury that if they should find in favor of the plaintiff they might render a verdict for such sum as might seem reasonable and proper to them in order to accomplish the following purposes: (a) to make compensation to the plaintiff for the injury he had sustained; (b) to deter the pTaJntiff from committing the like crime in time to come; (c) to deter other persons from committing the same crime; (d) to punish the defendant for this crime.
The act for which the plaintiff sought to recover damages involved a private injury and a public offence ; a violation of the civil rights of the plaintiff, and of the criminal laws of the state. It exposed him to two measures of punishment. One due to the private injury, another to the public offence. The first is imposed in the civil courts, at the suit of the party injured, and is for his private benefit. The second is imposed in the criminal courts at the instance of the public, and Tby way of the enforcement of the criminal law. This distinction is fundamental and prevails throughout the civilized world. The extent of the private injury, and the amount of compensation to which the injured party is entitled, are subjects upon which the finding of a jury is the legal measure. The grade of the crime, and the punishment to be imposed upon conviction, are fixed by the criminal code. When a maximum and minimum limit are prescribed, the intermediate point which the sentence shall adopt, is left not to the jury but to the judge. In view of the circumstances peculiar to the crime or the criminal he may exercise his discretion within the limits which the law has set. These two measures of punishment due to the different phases of the same act, administered by different tribunals, through radically different modes of procedure, and for different ends, ought not to be confounded. The criminal courts punish in order to preserve the public peace, protect the public morals and enforce the criminal law. The civil courts punish the violator of private rights by compelling him to repair the *366wrong done; if not by the restoration of what he has taken, then by the payment of an adequate equivalent in money for the injury he has inflicted on the plaintiff. This equivalent, when ascertained, is the measure of the plaintiffs damages. Damages are a compensation given by a jury for an injury or wrong done by the party before the action brought: 3 Bac. Ab. 57. A compensation and satisfaction for some injury sustained: 2 Bl. Com. 438. A recompense for the wrong the defendant hath done the plaintiff: 2 Co. Litt. 257 a. A sum of money to be paid by one person to another as a compensation for a loss sustained in consequence of an injury committed by the former: Rap. & L. Law Die. 336. “ The damages shall be to him who sustains the loss: ” 3 Comyn Dig. 347. In the code of Justinian the measure of the plaintiff’s damages is said to be “the actual loss sustained.” Judge Strong stated the rule thus: “ Whoever does an injury to another is liable in damages to the extent of that injury.” Dexter v. Spear, 4 Mason, 115. And our own court, with even greater precision, said in Bussy v. Donaldson, 4 Dallas, 206*: “ It is a natural and legal principle that the compensation should be equivalent to the injury.” Nowhere is the idea of punishment, or the protection of public morals, recognized as an element in the calculation of the amount of the plaintiff’s damages. The question is, what is the character and extent of his injury ? What sum of money is necessary to make him a fair equivalent for the wrong done him ? The answers to these questions fix the amount of damages to which he is entitled.
At this point it must be remembered that damages may be awarded according to one or both of two standards or methods of calculation depending on the character of the wrong done and the circumstances surrounding it. The first of these is well defined in the Am. & Eng. Ency. of Law, vol. 7, page 449, as “ the pecuniary loss which from its nature is capable of being estimated with entire or approximate accuracy.” This standard is applicable to all ordinary actions of trespass for an injury committed without malice and without circumstances of aggravation. The other is the compensation due by reason of the circumstances of aggravation, which having no exact pecuniary measure must be left to the exercise of a sound discretion by the jury. Damages so ascertained are distinguished *367from those that are capable of ascertainment with entire or approximate accuracy by describing them as punitive or exemplary damages, but they are nevertheless compensatory. Compensation for the loss of property, as of a house, an ox, a bushel of wheat, may be justly made by reference to the market price of the article lost or injured, and its amount may be fixed with as much certainty as that of any marketable commodity. It is for this reason that damages assessed in this manner are commonly and naturally spoken of as compensatory damages. But pain, shame, sorrow or disgrace have no market value. There is no commercial standard by which a price can be put upon them that shall be recognized as an approximately accurate equivalent in value. Nevertheless it is very plain that something is due to him who suffers, from him who has wickedly or recklessly inflicted the suffering. As the amount of compensation cannot be fixed by reference to a definite standard of value, it must be left to the jury to fix in view of the circumstances. Hence such damages have been described as “ smart money,” vindictive, punitive or exemplary damages, to distinguish them from such as are assessed upon the other basis. It would not be very wide of the truth to distinguish between these measures of compensation by saying that one fixes the amount by a business standard, the other by a moral standard. One looks only at the market value of the article injured or destroyed. The other looks at the motive and the manner of the defendant, and the nature of the injury inflicted. Compensation resting on a consideration of the circumstances of aggravation involves necessarily the idea of punishment for the malice or negligence of the defendant and may be properly enough spoken of as having a punitive effect. Damages assessed upon this basis demonstrate that the law regards the quality of an act as well as the act itself, and that for this reason, if for no other, every man should deal justly by every other. In this sense the damages may be properly spoken of as exemplary. These results however are incidental! The action is brought by the plaintiff to redress a wrong done to him. The verdict fixes the pecuniary equivalent of that wrong. The sum so fixed belongs to him. The court and jury have nothing to do with the public offence. Thej'- cannot inflict the punishment which the law prescribes for it, because they have no jurisdiction over it. Their powers and duties do *368not, they cannot, extend beyond the lines that bound the private controversy between the parties litigant; and whatever punitive effect the verdict and judgment may have is the consequence of the proper adjustment of the relative rights and liabilities of the parties before them. The crime committed against the plaintiff as distinguished from that committed against the state is the subject of the action. It is punished by an ascertainment of the amount of compensation that should be made. The crime against the state goes to another tribunal and is punished according to the directions of-the penal code. The fault with the direction given by the learned judge of the court below is that it is indefinite, and leaves the jury to infer that they may consider and punish the crime against the public as well as that against the plaintiff.
It is urged that similar expressions to those we are now considering are frequently to be met with in the courts, and that this court has approved and adopted them as correctly defining the powers of the jury in such cases. I do not deny that several cases may be found in which words like those made use of in this case have been used by judges of this court in distinguishing between the two measures or methods of computing damages, and in upholding the right of the plaintiff in the case then under examination to recover exemplary damages. I do distinctly deny however that the point now brought to our attention has been considered and determined in accordance with the action of the court below. The jury should know the extent of, and the limitations to, their power in the assessment of damages. The defendant has a right to insist that he cannot be constitutionally punished for a crime in a court which has no jurisdiction over it, and whose judgment he cannot plead when he is called upon to answer in the proper tribunal. The jury should have been told that they had no concern with the punishment of the defendant for his crime against the public; and that they should only consider the private wrong done' the plaintiff, and in the exercise of a reasonable discretion give him such a pecuniary equivalent therefor as in view of all the circumstances might seem to them just. I would reverse for this reason if there was no other error appearing on the record.
Mr. Justice Green.—I concur in the above.