Edmonds, J.,
overruled the latter objection, on the ground that the Revised Statutes (2 R. S. 292, § 2) had enacted that the right of action of any person injured by any felony shall not in any case be merged in such felony, or be in any manner affected thereby; and he charged the jury, that the fact of the killing in such manner as under the statute would give the plaintiff a right to recover, being established, not merely by the proof, but by the admissions on the record, the only question for their consideration, was the amount of damages which they were to give.
The action was a novel one, and had been unknown to our taw for very many years, and when the legislature had authorized it to be maintained, they had evidently been conscious of the danger there was that juries might be misled by their sympathy for the surviving relatives, and by their detestation of the wrongful act, neglect or default, from which death might ensue, and they had therefore been very careful to guard against it. Hence it had been enacted that in such an action the damages should be such as the jury should “ deem [115]*115fair and just with reference to the pecuniary injury resulting from the death, to the wife and next of kin of the deceased person.” (Laws of 1847, ch. 576, § 2.) Such being the rule which the law had laid down for the government of such cases, it was important that it should be well understood and rigidly adhered to.
Só far as the punishment of the offender for an inexcusable homicide jvas concerned, that was provided for by the law in another forum, and in a different form, where public considerations affecting the peace and good order of society, and the protection of human life against wanton violence, could be duly regarded, and might result in the infliction of the highest punishment known to our laws, and it became the jury to beware how they listened to suggestions of vengeance, lest they might be guilty of what our law deems a great wrong — the infliction of double punishment for the same offense.
So, too, as to sympathy with the surviving relatives for whose benefit alone the action was given. It was evidently the intention of the statute that it should find some other vent, some other field for its display, than in the jury box, for it confines the damages to the “pecuniary injury” alone, carefully excluding from view the wounds which the affections may receive from the violent disruption of the ties between husband and wife, or parent and child..
So, too, it would seem that it was the intention to exclude from consideration the question of the defendant’s ability to pay; for whether he be rich or poor, it would still be the duty of the jury to take as their unvarying standard, the “pecuniary injury resulting from the death,” and that injury is to be “ to the widow and next of kin; ” not to society at large, nor to any of the numerous smaller communities into which society among us is divided; nor even to the whole circle of relatives ; but only to the widow and next of kin, known to our law as such, and who are entitled to the “ distribution of personal property left by persons dying intestate.”
In fine, the statute intended to reduce the rule of damages, so far as it was capable of being so reduced, to the measure of [116]*116dollars and cents, and from that standard.the jury were not at liberty, under the statute, to depart.
With all these restrictions, there was still quite a wide field of discretion for the jury, for they were still at liberty to give such damages as they should “ deem fair and just in reference to such pecuniary injury.”
Beyond these considerations, it would be difficult for the court to aid the jury in establishing a measure of damages. The law had been too recently enacted to enable them to have much benefit from its practical application, or from judicial construction of it, yet it might not be unprofitable to recur to that early age of the law, when it was known to our ancestors, for there they might find some light as to its practical operation.
The judge said that he had indeed discovered the existence on this continent of a custom of paying for life taken, when some twelve or fourteen years ago he had been among the native Indians on our frontiers. But not much aid could be thence derived, because there it had been rather matter of individual compact than of binding law, and was valuable only as showing the effect of the custom to ameliorate the condition of a society where revenge for injuries sustained was inculcated as a duty particularly incumbent on the living for wrongs done to the dead.
It was, however, to the custom as it had obtained among our ancestors, that reference might be made, for it had been known among our Saxon ancestors many hundred years ago, before the introduction of Christianity in the island of Great Britain.
The weregild (wergildus) was the price of homicide paid for killing a man; thepn-etiwm redemptionis of the offender, as the werelada was when the price was' not paid, but the accused denied his guilt, and purged himself by the oaths of compurgators. The notion of "compensation run through the whole criminal law of the Anglo-Saxons, who allowed a sum of money as a recompense for every kind of crimé. Every man’s life had its value, called a were or capitis estimatio. [117]*117This was various, at various times. In the time of King Athelstan, a law was made to settle the were of every order of persons in the State. The king was rated at 30,000 thrymsae; a prince or earl at 15,000; an earlderman at 8,000; a thane at 2,000; a common person at 267 thrymsae; the thrimsa (Saxon, thrim, three), being a piece of money valued at three shillings, or, according to some, the one-third part of a shilling. When a person was killed the slayer was to make compensation to the relations of the deceased, according to such valuations. In the case of the king, half the were went to his relations, and half to his people. If the deceased was a stranger, or had no relations, the were was divided; half to go to the king, and half to the most intimate companion of the deceased.
As the manners and notions of the people would not allow =. them to submit to any harsher punishment in the first instance, it was endeavored to render this as severe as possible. The were was not to be remitted; and to make the offender an example, as well as to prevent the effusion of blood, all his relations were, by a law of King Edmund, discharged from the obligation of abetting him against the feud of the relations of the deceased, whose deadly resentment he was to support alone until he paid the were.
The degree and circumstances attending the fact, both of which it was out of the power of legislation exactly to reach, made no part of the judicial consideration, but the judge was to award the same stated fine in all cases which could be . brought within the letter of the legal description. The Saxons were particularly curious in fixing pecuniary compensations for injuries of all kinds, without leaving it to the discretion of the judge to proportion the amends to the degree of injury suffered.
The object of these laws was to repair the fault, rather than to punish the offender. There was therefore no distinction made between things done with deliberate malice, and those done in the heat of passion, or by inadvertence; a kind of lenity which, however admissible in a rude and simple state [118]
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Edmonds, J.,
overruled the latter objection, on the ground that the Revised Statutes (2 R. S. 292, § 2) had enacted that the right of action of any person injured by any felony shall not in any case be merged in such felony, or be in any manner affected thereby; and he charged the jury, that the fact of the killing in such manner as under the statute would give the plaintiff a right to recover, being established, not merely by the proof, but by the admissions on the record, the only question for their consideration, was the amount of damages which they were to give.
The action was a novel one, and had been unknown to our taw for very many years, and when the legislature had authorized it to be maintained, they had evidently been conscious of the danger there was that juries might be misled by their sympathy for the surviving relatives, and by their detestation of the wrongful act, neglect or default, from which death might ensue, and they had therefore been very careful to guard against it. Hence it had been enacted that in such an action the damages should be such as the jury should “ deem [115]*115fair and just with reference to the pecuniary injury resulting from the death, to the wife and next of kin of the deceased person.” (Laws of 1847, ch. 576, § 2.) Such being the rule which the law had laid down for the government of such cases, it was important that it should be well understood and rigidly adhered to.
Só far as the punishment of the offender for an inexcusable homicide jvas concerned, that was provided for by the law in another forum, and in a different form, where public considerations affecting the peace and good order of society, and the protection of human life against wanton violence, could be duly regarded, and might result in the infliction of the highest punishment known to our laws, and it became the jury to beware how they listened to suggestions of vengeance, lest they might be guilty of what our law deems a great wrong — the infliction of double punishment for the same offense.
So, too, as to sympathy with the surviving relatives for whose benefit alone the action was given. It was evidently the intention of the statute that it should find some other vent, some other field for its display, than in the jury box, for it confines the damages to the “pecuniary injury” alone, carefully excluding from view the wounds which the affections may receive from the violent disruption of the ties between husband and wife, or parent and child..
So, too, it would seem that it was the intention to exclude from consideration the question of the defendant’s ability to pay; for whether he be rich or poor, it would still be the duty of the jury to take as their unvarying standard, the “pecuniary injury resulting from the death,” and that injury is to be “ to the widow and next of kin; ” not to society at large, nor to any of the numerous smaller communities into which society among us is divided; nor even to the whole circle of relatives ; but only to the widow and next of kin, known to our law as such, and who are entitled to the “ distribution of personal property left by persons dying intestate.”
In fine, the statute intended to reduce the rule of damages, so far as it was capable of being so reduced, to the measure of [116]*116dollars and cents, and from that standard.the jury were not at liberty, under the statute, to depart.
With all these restrictions, there was still quite a wide field of discretion for the jury, for they were still at liberty to give such damages as they should “ deem fair and just in reference to such pecuniary injury.”
Beyond these considerations, it would be difficult for the court to aid the jury in establishing a measure of damages. The law had been too recently enacted to enable them to have much benefit from its practical application, or from judicial construction of it, yet it might not be unprofitable to recur to that early age of the law, when it was known to our ancestors, for there they might find some light as to its practical operation.
The judge said that he had indeed discovered the existence on this continent of a custom of paying for life taken, when some twelve or fourteen years ago he had been among the native Indians on our frontiers. But not much aid could be thence derived, because there it had been rather matter of individual compact than of binding law, and was valuable only as showing the effect of the custom to ameliorate the condition of a society where revenge for injuries sustained was inculcated as a duty particularly incumbent on the living for wrongs done to the dead.
It was, however, to the custom as it had obtained among our ancestors, that reference might be made, for it had been known among our Saxon ancestors many hundred years ago, before the introduction of Christianity in the island of Great Britain.
The weregild (wergildus) was the price of homicide paid for killing a man; thepn-etiwm redemptionis of the offender, as the werelada was when the price was' not paid, but the accused denied his guilt, and purged himself by the oaths of compurgators. The notion of "compensation run through the whole criminal law of the Anglo-Saxons, who allowed a sum of money as a recompense for every kind of crimé. Every man’s life had its value, called a were or capitis estimatio. [117]*117This was various, at various times. In the time of King Athelstan, a law was made to settle the were of every order of persons in the State. The king was rated at 30,000 thrymsae; a prince or earl at 15,000; an earlderman at 8,000; a thane at 2,000; a common person at 267 thrymsae; the thrimsa (Saxon, thrim, three), being a piece of money valued at three shillings, or, according to some, the one-third part of a shilling. When a person was killed the slayer was to make compensation to the relations of the deceased, according to such valuations. In the case of the king, half the were went to his relations, and half to his people. If the deceased was a stranger, or had no relations, the were was divided; half to go to the king, and half to the most intimate companion of the deceased.
As the manners and notions of the people would not allow =. them to submit to any harsher punishment in the first instance, it was endeavored to render this as severe as possible. The were was not to be remitted; and to make the offender an example, as well as to prevent the effusion of blood, all his relations were, by a law of King Edmund, discharged from the obligation of abetting him against the feud of the relations of the deceased, whose deadly resentment he was to support alone until he paid the were.
The degree and circumstances attending the fact, both of which it was out of the power of legislation exactly to reach, made no part of the judicial consideration, but the judge was to award the same stated fine in all cases which could be . brought within the letter of the legal description. The Saxons were particularly curious in fixing pecuniary compensations for injuries of all kinds, without leaving it to the discretion of the judge to proportion the amends to the degree of injury suffered.
The object of these laws was to repair the fault, rather than to punish the offender. There was therefore no distinction made between things done with deliberate malice, and those done in the heat of passion, or by inadvertence; a kind of lenity which, however admissible in a rude and simple state [118]*118of society, was soon found to be inadequate to the purposes of good government. Other penalties were therefore added, and crimes came to be punished, not merely as private injuries, but as public offenses. Hence an alteration in the law, whereby, in cases of homicide, half the were was paid to the king, as fritlibote, or compensation for the breach of the peace, and half to the family of the deceased, as maegbote, literally, compensation to the kindred.
These regulations among our Saxon ancestors, as among the Indian tribes of our continent, had their origin in the desire to regulate and restrain the gratification of private revenge, the strongest passion in an untutored mind, and to curb the principle of retaliation which naturally produced violent and deadly feuds, which for a time broke through the restraints of all government. In cases of homicide, the. were was thus to redeem the offender from suffering death by the lex talionis.
In process of time the laws were so modified that manifest homicide, open robbery, treason, and other crimes were declared to be inexpiable; that is, not to be redeemed by any pecuniary compensation.
The Judge said to the jury, that in referring them to these passages in the history of the English law, he was aware that he might be directing their attention rather to what was curious and entertaining, than instructive to them in the performance of their duty, yet it could scarcely be deemed unwise to refer to the experience of the past, when the jurisprudence of that past was revived in the present, after having slumbered for centuries. Thus it would be observed that several features of the former law were preserved; and incorporated into this new statute; that the fine, or were, is payable, not to the government, but to the relatives or family of the deceased; that it is imposed, not as a punishment for a public wrong, but to repair the fault, and compensate the injury of individuals; that in fixing its amount, no respect is- paid to the condition of the offender, and that' whether rich or poor, high or low, the penalty to be paid by him must be ascertained by other [119]*119considerations alone; that from those considerations is excluded all regard to wounded affection on the one hand, or purposes of vengeance on the other; and that the whole penalty is reduced solely to a pecuniary standard, to he measured now by the extent of pecuniary injury, as it was formerly by a fixed and determinate amount in every kindred case.
Aside, however, from this comparison with the past, which was, nevertheless, so close as to induce the belief that it was in the view of our legislature, the judge said that it was quite apparent what was the measure of damage which the statute intended should govern in such cases, and it was therefore his duty to instruct the jury that they must adhere closely to the standard thus given them, and that they would not be at liberty to wander from the narrow path thus pointed out, in order to indulge their sympathy with the loss which the widow and the orphans had sustained, or to gratify them vengeance for a grievous wrong done, or to afford an example to deter others from like offenses; that they would not even be at liberty to calculate the value of human life at, large, but they were to be confined to the single question, what was its value to the family of the deceased ? So that he who earned for his family only some $150 a year would necessarily be of less value, under this statute, than he who earned $1,500; and, on the other hand, he who earned nothing, but yet was in the enjoyment of a large income, which on his death would survive to his family, might, under this statute, be justly deemed of less value than he would be who earned his half a dollar a day, and whose family were dependent for support on such earnings alone.
Such was the standard which the legislature in its power had established for their government in enforcing this peculiar statute. Whether wisely, or not, it was not for the court or jury to say. It was enough for them that so the law was written, and it would never do for them to depart from its explicit mandates; least of all, in the pursuit of considerations which the law had carefully excluded from their view.
The Judge said he had been thus full in presenting these [120]*120matters to the jury, because he was aware how difficult it was, when estimating the value of human life, to exclude from the view those nameless considerations which tend to enhance that value in a society where life, liberty, and the pursuit of happiness, are seemed to every member of the community, and can be forfeited only by crime. Still it was the duty of the jury thus to perform their task, and to right-minded men it would be found not to be impossible thus to perform it.
The jury found a verdict for $1,435.