§ 151 The Measure of Civil Liability
Penal redress is that form of penal liability in which the law uses the compulsory compensation of the person injured as an instrument for the punishment of the offender. It is characteristic of this form of punishment that it takes account of one only of the three considerations which, as we have seen, rightly determine the measure of penal responsibility. It is measured exclusively by the magnitude of the offence, that is to say, by the amount of loss inflicted by it. It takes no account of the character of the offender, and so visits him who does harm through some trivial want of care with as severe a penalty as if his act had been prompted by deliberate malice. Similarly it takes no account of the motives of the offence; he who has everything and he who has nothing to gain are equally punished, if the damage done by them is equal. Finally it takes no account of probable or intended consequences, but solely of those which actually ensue; wherefore the measure of a wrongdoer’s liability is not the evil which he meant to do, but that which he has succeeded in doing; and his punishment is determined not by his fault, but by the accident of the result. If one man is dealt with more severely than another, it is not because he is more guilty, but because he has had the misfortune to be more successful in his wrongful purposes, or less successful in the avoidance of unintended issues.
Serious as are these lapses from the due standard of penal discipline, it is not to be suggested that this form of civil liability is unjustifiable. The use of redress as an instrument of punishment possesses advantages more than sufficient to counterbalance any such objections to it. More especially it possesses this, that while other forms of punishment, such as imprisonment, are uncompensated evil, penal redress is the gain of him who is wronged as well as the loss of the wrongdoer. Further, this form of remedy gives to the persons injured a direct interest in the efficient administration of justice—an interest which is almost absent in the case of the criminal law. It is true, however, that the law of penal redress, taken by itself, falls so far short of the requirements of a rational scheme of punishment that it would by itself be totally insufficient. In all modern and developed bodies of law its operation is supplemented, and its deficiencies made good, by a co-ordinate system of criminal liability. These two together, combined in due proportions, constitute a very efficient instrument for the maintenance of justice.