Browning-Ferris Industries of Vermont Inc. v. Kelco Disposal Inc./Opinion of the Court

by Harry Blackmun

We face here the questions whether the Excessive Fines Clause of the Eighth Amendment applies to a civil-jury award of punitive or exemplary damages, and, if so, whether an award of $6 million was excessive in this particular case. ^[1] This Court has never held, or even intimated, that the Eighth Amendment serves as a check on the power of a jury to award damages in a civil case. Rather, our concerns in applying the Eighth Amendment have been with criminal process and with direct actions initiated by government to inflict punishment. Awards of punitive damages do not implicate these concerns. We therefore hold, on the basis of the history and purpose of the Eighth Amendment, that its Excessive Fines Clause does not apply to awards of punitive damages in cases between private parties.

* These weighty questions of constitutional law arise from an unlikely source: the waste-disposal business in Burlington, Vt. Petitioner Browning-Ferris Industries of Vermont, Inc., is a subsidiary of petitioner Browning-Ferris Industries, Inc. (collectively, BFI), which operates a nationwide ommercial waste-collection and disposal business. In 1973 BFI entered the Burlington area trash-collection market, and in 1976 began to offer roll-off collection services. ^[2] Until 1980 BFI was the sole provider of such services in the Burlington area; that year respondent Joseph Kelley, who, since 1973, had been BFI's local district manager, went into business for himself, starting respondent Kelco Disposal, Inc. Within a year Kelco obtained nearly 40% of the Burlington roll-off market, and by 1982 Kelco's market share had risen to 43%. During 1982 BFI reacted by attempting to drive Kelco out of business, first by offering to buy Kelco and then by cutting prices by 40% or more on new business for approximately six months. The orders given to the Burlington BFI office by its regional vice president were clear: "Put [Kelley] out of business. Do whatever it takes. Squish him like a bug." App. 10. BFI's Burlington salesman was also instructed to put Kelco out of business and told that if "it meant give the stuff away, give it away." Ibid.

During the first four months of BFI's predatory campaign, Kelco's revenues dropped 30%. Kelco's attorney wrote to BFI's legal department asserting that BFI's pricing strategy was illegal, and threatened to initiate court proceedings if it continued. BFI did not respond, and continued its price-cutting policy for several more months. BFI's market share remained stable from 1982 to 1984, but by 1985 Kelco had captured 56% of the market. That same year BFI sold out to a third party and left the Burlington market.

In 1984, Kelco and Kelley brought an action in the United States District Court for the District of Vermont, alleging a violation of § 2 of the Sherman Act for attempts to monopolize the Burlington roll-off market. They also claimed that BFI had interfered with Kelco's contractual relations in violation of Vermont tort law. Kelley's claims were severed from Kelco's, and Kelco's antitrust and tort claims were tried to a jury. After a 6-day trial BFI was found liable on both counts. A 1-day trial on damages followed, at which Kelco submitted evidence regarding the revenues and profits it lost as a result of BFI's predatory prices. Kelco's attorney urged the jury to return an award of punitive damages, asking the jurors to "deliver a message to Houston [BFI's headquarters]." Id., at 53. Kelco also stressed BFI's total revenues of $1.3 billion in the previous year, noting that this figure broke down to $25 million a week. BFI urged that punitive damages were not appropriate, but made no argument as to amount.

The District Court instructed the jury that it could award punitive damages on the state-law claims if it found by clear and convincing evidence that BFI's conduct "revealed actual malice, outrageous conduct, or constituted a willful and wanton or reckless disregard of the plaintiff's rights." Id., at 81. It also told the jury that in determining the amount of punitive damages it could take into account "the character of the defendants, their financial standing, and the nature of their acts." Ibid. BFI raised no relevant objection to the charge on punitive damages. The jury returned a verdict of $51,146 in compensatory damages on both the federal-antitrust and state-tort counts, and $6 million in punitive damages.

BFI moved for judgment notwithstanding the verdict, a new trial, or remittitur. The District Court denied these motions and awarded Kelco $153,438 in treble damages and $212,500 in attorney's fees and costs on the antitrust claim, or, in the alternative, $6,066,082.74 in compensatory and punitive damages on the state-law claim. BFI appealed. The United States Court of Appeals for the Second Circuit affir ed the judgment both as to liability and as to damages. 845 F.2d 404 (1988). On the issue of punitive damages, the court noted that the evidence showed that BFI "wilfully and deliberately attempted to drive Kelco out of the market," and found no indication of jury prejudice or bias. Id., at 410. Addressing the Eighth Amendment issue, the court noted that even if the Amendment were applicable "to this nominally civil case," the damages were not "so disproportionate as to be cruel, unusual, or constitutionally excessive," and upheld the award. Ibid. Because of its importance, we granted certiorari on the punitive damages issue. 488 U.S. 980, 109 S.Ct. 527, 102 L.Ed.2d 559 (1988).

The Eighth Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Although this Court has never considered an application of the Excessive Fines Clause, it has interpreted the Amendment in its entirety in a way which suggests that the Clause does not apply to a civil-jury award of punitive damages. Given that the Amendment is addressed to bail, fines, and punishments, our cases long have understood it to apply primarily, and perhaps exclusively, to criminal prosecutions and punishments. See, e.g., Ex parte Watkins, 7 Pet. 568, 573-574, 8 L.Ed. 786 (1833) ("The eighth amendmentis addressed to courts of the United States exercising criminal jurisdiction"); Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905 (1893) (Amendment inapplicable to deportation because deportation is not punishment for a crime); Ingraham v. Wright, 430 U.S. 651, 664-668, 97 S.Ct. 1401, 1408-1411, 51 L.Ed.2d 711 (1977). "Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government." Id., at 664, 97 S.Ct., at 1408. ^[3]

To decide the instant case, however, we eed not go so far as to hold that the Excessive Fines Clause applies just to criminal cases. Whatever the outer confines of the Clause's reach may be, we now decide only that it does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded. To hold otherwise, we believe, would be to ignore the purposes and concerns of the Amendment, as illuminated by its history. ^[4]

The Eighth Amendment received little debate in the First Congress, see Weems v. United States, 217 U.S. 349, 368, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910), and the Excessive Fines Clause received even less attention. This is not surprising; at least eight of the original States which ratified the Constitution had some equivalent of the Excessive Fines Clause in their respective Declarations of Rights or State Constitutions, ^[5] so the matter was not a likely source of controversy or extensive discussion. Although the prohibition of excessive fines was mentioned as part of a complaint that the Amendment was unnecessary and imprecise, see 217 U.S., at 369, 30 S.Ct., at 550, Congress did not discuss what was meant by the term "fines," or whether the prohibition had any application in the civil context. In the absence of direct evidence of Congress' intended meaning, we think it significant that at the time of the drafting and ratification of the Amendment, the word "fine" was understood to mean a payment to a sovereign as punishment for some offense. ^[6] Then, as now, fines were assessed in criminal, rather than in private civil, actions. ^[7]

But there is more than inferential evidence from language to support our conclusion that the Excessive Fines Clause is inapplicable to an award of punitive damages. The undisputed purpose and history of the Amendment generally, and of the Excessive Fines Clause specifically, confirm our reading. The Eighth Amendment clearly was adopted with the particular intent of placing limits on the powers of the new Government. "At the time of its ratification, the original Constitution was criticized in the Massachusetts and Virginia Conventions for its failure to provide any protection for persons convicted of crimes. This criticism provided the impetus for inclusion of the Eighth Amendment in the Bill of Rights." Ingraham v. Wright, 430 U.S., at 666, 97 S.Ct., at 1409 (footnote omitted). See generally Barron v. Mayor and City Council of Baltimore, 7 Pet. 243, 250, 8 L.Ed. 672 (1833) ("In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended"); Weems v. United States, 217 U.S., at 372, 30 S.Ct., at 551 (the "predominant political impulse" of proponents of the Bill of Rights "was distrust of power, and they insisted on constitutional limitations against its abuse"). Simply put, the primary focus of the Eighth Amendment was the potential for governmental abuse of its "prosecutorial" power, not concern with the extent or purposes of civil damages.

Moreover, specific and persuasive support for our reading of the Excessive Fines Clause comes from the pedigree of the Clause itself. As we have noted in other cases, it is clear that the Eighth Amendment was "based directly on Art. I, § 9, of the Virginia Declaration of Rights," which "adopted verbatim the language of the English Bill of Rights." Solem v. Helm, 463 U.S. 277, 285, n. 10, 103 S.Ct. 3001, 3007, n. 10, 77 L.Ed.2d 637 (1983). Section 10 of the English Bill of Rights of 1689, like our Eighth Amendment, states that "excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted." 1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large 440, 441 (1689). We recounted in Ingraham, 430 U.S., at 664, 97 S.Ct., at 1408: "The English version, adopted after the accession of William and Mary, was intended to curb the excesses of English judges under the reign of James II." During the reigns of the Stuarts the King's judges had imposed heavy fines on the King's enemies, much as the Star Chamber had done before its abolition in 1641. L. Schwoerer, The Declaration of Rights, 1689, p. 91 (1981). In the 1680's the use of fines "became even more excessive and partisan," and some opponents of the King were forced to remain in prison because they could not pay the huge monetary penaltie that had been assessed. Ibid. ^[8] The group which drew up the 1689 Bill of Rights had firsthand experience; several had been subjected to heavy fines by the King's bench. Id., at 91-92, and n. 198.

The Framers of our Bill of Rights were aware and took account of the abuses that led to the 1689 Bill of Rights. ^[9] This history, when coupled with the fact that the accepted English definition of "fine" in 1689 appears to be identical to that in use in colonial America at the time of our Bill of Rights, ^[10] seems to us clear support for reading our Excessive Fines Clause as limiting the ability of the sovereign to use its prosecutorial power, including the power to collect fines, for improper ends. Providing even clearer support for this view is the English case law, immediately prior to the enactment of the English Bill of Rights, which stressed the difference between civil damages and criminal fines. See Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng.Rep. 994 (C.P.1677). In short, nothing in English history suggests that the Excessive Fines Clause of the 1689 Bill of Rights, the direct ancestor of our Eighth Amendment, was intended to apply to damages awarded in disputes between private parties. Instead, the history of the Eighth Amendment convinces us that the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.

Petitioners, however, argue that the Excessive Fines Clause "derives from limitations in English law on monetary penalties exacted in private civil cases to punish and deter misconduct." Brief for Petitioners 17. They recognize that nothing in the history we have recounted thus far espouses that view. To find support, they turn the clock hundreds of years further back to English history prior to Magna Carta, and in particular to the use and abuse of "amercements." According to petitioners, amercements were essentially civil damages, and the limits Magna Carta placed on the use of amercements were the forerunners of the 1689 Bill of Rights' prohibition on excessive fines. In their view, the English Bill of Rights and our Eighth Amendment must be understood as reaching beyond the criminal context, because Magna Carta did. Punitive damages, they suggest, must be within the scope of the Excessive Fines Clause because they are a modern-day analog of 13th-century amercements.

The argument is somewhat intriguing, but we hesitate to place great emphasis on the particulars of 13th-century English practice, particularly when the interpretation we are urged to adopt appears to conflict with the lessons of more recent history. Even so, our understanding of the use of amercements, and the development of actions for damages at common law, convince us that petitioners' view of the relevant history does not support the result they seek.

Amercements were payments to the Crown, and were required of individuals who were "in the King's mercy," because of some act offensive to the Crown. Those acts ranged from what we today would consider minor criminal offenses, such as breach of the King's peace with force and arms, to "civil" wrongs against the King, such as infringing "a final concord" made in the King's court. § e 2 F. Pollock & F. Maitland, History of English Law 519 (2d ed. 1905) (Pollock & Maitland); see also Solem v. Helm, 463 U.S., at 284, n. 8, 103 S.Ct., at 3006, n. 8 (an amercement "was the most common criminal sanction in 13th-century England"); W. McKechnie, Magna Carta 285-286 (2d ed. 1958) (McKechnie) (discussing amercements as a step in the development of criminal law). Amercements were an "all-purpose" royal penalty; they were used not only against plaintiffs who failed to follow the complex rules of pleading ^[11] and against defendants who today would be liable in tort, but also against an entire township which failed to live up to its obligations, or against a sheriff who neglected his duties. ^[12] The use of amercements was widespread; one commentary has said that most men in England could expect to be amerced at least once a year. See 2 Pollock & Maitland 513. ^[13]

In response to the frequent, and occasionally abusive, use of amercements by the King, Magna Carta included several provisions placing limits on the circumstances under which a person could be amerced, and the amount of the amercement. ^[14] The barons who forced John to agree to Magna Carta sought to reduce arbitrary royal power, and in particular to limit the King's use of amercements as a source of royal revenue, and as a weapon against enemies of the Crown. ^[15] The Amercements Clause of Magna Carta limited these abuses in four ways: by requiring that one be amerced only for some genuine harm to the Crown; by requiring that the amount of the amercement be proportioned to the wrong; by requiring that the amercement not be so larg as to deprive him of his livelihood; and by requiring that the amount of the amercement be fixed by one's peers, sworn to amerce only in a proportionate amount. ^[16]

Petitioners, and some commentators, ^[17] find in this history a basis for concluding that the Excessive Fines Clause operates to limit the ability of a civil jury to award punitive damages. We do not agree. Whatever uncertainties surround the use of amercements prior to Magna Carta, the compact signed at Runnymede was aimed at putting limits on the power of the King, on the "tyrannical extortions, under the name of amercements, with which John had oppressed his people," T. Taswell-Langmead, English Constitutional History 83 (T. Plucknett 10th ed. 1946), whether that power be exercised for purposes of oppressing political opponents, for raising revenue in unfair ways, or for any other improper use. See 2 W. Holdsworth, A History of English Law 214 (4th ed. 1936). These concerns are clearly inapposite in a case where a private party receives exemplary damages from another party, and the government has no share in the recovery. Cf. United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (Double Jeopardy Clause).

Petitioners ultimately rely on little more than the fact that the distinction between civil and criminal law was cloudy (and perhaps nonexistent) at the time of Magna Carta. But any overlap between civil and criminal procedure at that time does nothing to support petitioners' case, when all the indications are that English courts never have understood the amer ements clauses to be relevant to private damages of any kind, either then or at any later time. See Lord Townsend v. Hughes, 2 Mod., at 151, 86 Eng.Rep., at 994-995 (Magna Carta's amercements provisions apply in criminal, but not civil, cases). Even after the common law had developed to the point where courts occasionally did decrease a damages award or eliminate it altogether, such action was never predicated on the theory that the government somehow had overstepped its bounds. Rather, the perceived error was one made by the jury, as determined by reference to common-law, rather than constitutional, standards. Whether based on reasoning that the jury's award was so excessive that it must have been based on bias or prejudice, see Wood v. Gunston, Sty. 466, 82 Eng.Rep. 867 (K.B.1655); Leith v. Pope, 2 Bl.W. 1327, 96 Eng.Rep. 777 (C.P.1780), or that the jury must have misconstrued the evidence, see Ash v. Ash, Comb. 357, 90 Eng.Rep. 526 (1696), the proper focus was, and still is, on the behavior of the jury. It is difficult to understand how Magna Carta, or the English Bill of Rights as viewed through the lens of Magna Carta, compels us to read our Eighth Amendment's Excessive Fines Clause as applying to punitive damages when those documents themselves were never so applied. ^[18]

Our conclusion that the Framers of the Eighth Amendment did not expressly intend it to apply to damages awards made by civil juries does not necessarily complete our inquiry. Our Eighth Amendment jurisprudence has not been inflexible. The Court, when considering the Eighth Amendment, has stated: "Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions." Weems v. United States, 217 U.S., at 373, 30 S.Ct., at 551. ^[19] This aspect of our Eighth Amendment jurisprudence might have some force here were punitive damages a strictly modern creation, without solid grounding in pre-Revolutionary days. But the practice of awarding damages far in excess of actual compensation for quantifiable injuries was well recognized at the time the Framers produced the Eighth Amendment. Awards of double or treble damages authorized by statute date back to the 13th century, see Statute of Gloucester, 1278, 6 Edw. I, ch. 5, 1 Stat. at Large 66 (treble damages for waste); see also 2 Pollock & Maitland 522, and the doctrine was expressly recognized in cases as early as 1763. ^[20] Despite this recognition of civil exemplary damages as punitive in nature, the Eighth Amendment did not expressly include it within its scope. Rather, as we earlier have noted, the text of the Amendment points to an intent to deal only with the prosecutorial powers of government.

Furthermore, even if we were prepared to extend the scope of the Excessive Fines Clause beyond the context where the Framers clearly intended it to apply, we would not be persuaded to do so with respect to cases of punitive damages awards in private civil cases, because they are too far afield from the concerns that animate the Eighth Amendment. We think it clear, from both the language of the Excessive Fines Clause and the nature of our constitutional framework, that the Eighth Amendment places limits on the steps a government may take against an individual, whether it be keeping him in prison, imposing excessive monetary sanctions, or using cruel and unusual punishments. The fact that punitive damages are imposed through the aegis of courts and serve to advance governmental interests is insufficient to support the step petitioners ask us to take. While we agree with petitioners that punitive damages advance the interests of punishment and deterrence, which are also among the interests advanced by the criminal law, we fail to see how this overlap requires us to apply the Excessive Fines Clause in a case between private parties. Here the government of Vermont has not taken a positive step to punish, as it most obviously does in the criminal context, nor has it used the civil courts to extract large payments or forfeitures for the purpose of raising revenue or disabling some individual. ^[21] We shall not ignore the language of the Excessive Fines Clause, or its history, or the theory on which it is based, in order to apply it to punitive damages. ^[22]

Petitioners also ask us to review the punitive damages award to determine whether it is excessive under the Due Process Clause of the Fourteenth Amendment. The parties agree that due process imposes some limits on jury awards of punitive damages, and it is not disputed that a jury award may not be upheld if it was the product of bias or passion, or if it was reached in proceedings lacking the basic elements of fundamental fairness. But petitioners make no claim that the proceedings themselves were unfair, or that the jury was biased or blinded by emotion or prejudice. Instead, they seek further due process protections, addressed directly to the size of the damages award. There is some authority in our opinions for the view that the Due Process Clause places outer limits on the size of a civil damages award made pursuant to a statutory scheme, see, e.g., St. Louis, I. M. & S. R. Co. v. Williams, 251 U.S. 63, 66-67, 40 S.Ct. 71, 73, 64 L.Ed. 139 (1919), but we have never addressed the precise question presented here: whether due process acts as a check on undue jury discretion to award punitive damages in the absence of any express statutory limit. See Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 87, 108 S.Ct. 1645, 1655, 100 L.Ed.2d 62 (1988) (O'CONNOR, J., concurring in part and concurring in judgment). That inquiry must await another day. Because petitioners failed to raise their due process argument before either the District Court or the Court of Appeals, and made no specific mention of it in their petition for certiorari in this Court, we shall not consider its effect on this award. ^[23]

Petitioners also ask us to hold that this award of punitive damages is excessive as a matter of federal common law. Rather than directing us to a developed body of federal law, however, they merely repeat the standards they urged us to adopt under the Eighth Amendment. It is not our role to review directly the award for excessiveness, or to substitute our judgment for that of the jury. Rather, our only inquiry is whether the Court of Appeals erred in finding that the District Court did not abuse its discretion in refusing to grant petitioners' motion, under Federal Rule of Civil Procedure 59, for a new trial or remittitur. Applying proper deference to the District Court, the award of punitive damages should stand.

Review of the District Court's order involves questions of both state and federal law. In a diversity action, or in any other lawsuit where state law provides the basis of decision, the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law. ^[24] Federal law, however, will control on those issues involving the proper review of the jury award by a federal district court and court of appeals. See Donovan v. Penn Shipping Co., 429 U.S. 648, 649-650, 97 S.Ct. 835, 836-837, 51 L.Ed.2d 112 (1977); see also 6A J. Moore, J. Lucas, & G. Grotheer, Moore's Federal Practice, ¶ 59.04[1] (2d ed. 1987).

In reviewing an award of punitive damages, the role of the district court is to determine whether the jury's verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered. The court of appeals should then review the district court's determination under an abuse-of-discretion standard. ^[25] Although petitioners and their amici would like us to craft some common-law standard of excessiveness that relies on notions of proportionality between punitive and compensatory damages, or makes reference to statutory penalties for similar conduct, these are matters of state, and not federal, common law. Adopting a rule along the lines petitioners suggest would require us to ignore the distinction between the state-law and federal-law issues. For obvious reasons we decline that invitation.

In performing the limited function of a federal appellate court, we perceive no federal common-law standard, or compelling federal policy, which convinces us that we should not continue to accord considerable deference to a district court's decision not to order a new trial. ^[26] In this case the District Court properly instructed the jury on Vermont law, see n. 24, supra, and applied the proper state-law standard in considering whether the verdict returned was excessive. Although the opinion of the Court of Appeals is not clear to us as to whether it applied state or federal law in reviewing the District Court's order denying the new trial or remittitur, we are convinced that its conclusion that there was no abuse of discretion by the District Court is consistent with federal standards, in light of the broad range of factors Vermont law permits juries to consider in awarding punitive damages.

In sum, we conclude that neither federal common law nor the Excessive Fines Clause of the Eighth Amendment provides a basis for disturbing the jury's punitive damages award in this case. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Notes

1. Petitioners before this Court also challenge the award on due process grounds. For reasons set forth in Part III of this opinion, we decline to reach that issue.
2. "Roll-off waste collection is usually performed at large industrial locations and construction sites with the use of a large truck, a compactor, and a container that is much larger than the typical 'dumpster.' " 845 F.2d 404, 406 (CA2 1988).
3. Ingraham, like most of our Eighth Amendment cases, involved the Cruel and Unusual Punishments Clause, and it therefore is not directly controlling in this Excessive Fines Clause case. The insights into the meaning of the Eighth Amendment reached in Ingraham and similar cases, however, are highly instructive.
4. The same basic mode of inquiry should be applied in considering the scope of the Excessive Fines Clause as is proper in other Eighth Amendment contexts. We look to the origins of the Clause and the purposes which directed its framers. "The applicability of the Eighth Amendment always has turned on its original meaning, as demonstrated by its historical derivation." Ingraham, 430 U.S., at 670-671, n. 39, 97 S.Ct., at 1412-1413, n. 39. We emphasize, however, that this historical emphasis concerns the question of when the Eighth Amendment is to be applied; as the Court's jurisprudence under the Cruel and Unusual Punishments Clause indicates, its approach has not relied on history to the same extent when considering the scope of the Amendment. See Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion) ("The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society").
5. Delaware, Georgia, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, and Virginia all had a Declaration of Rights or a Constitution expressly prohibiting excessive fines. See 1 B. Schwartz, The Bill of Rights: A Documentary History 235 (Virginia), 272 (Pennsylvania), 278 (Delaware), 282 (Maryland), 287 (North Carolina), 300 (Georgia), 343 (Massachusetts), and 379 (New Hampshire) (1971).
6. A "fine signifieth a percuniarie punishment for an offence, or a contempt committed against the king." 1 E. Coke, Institutes *126b. The second edition of Cunningham's Law-Dictionary, published in 1771, defined "fines for offences" as "amends, pecuniary punishment, or recompence for an offence committed against the King and his laws, or against the Lord of a manor." 2 T. Cunningham, A New and Complete Law-Dictionary (unpaginated). See also 1 T. Tomlins, Law-Dictionary 796-799 (1836) (same); 1 J. Bouvier, Law Dictionary 525 (4th ed. 1852) (same).
7. Petitioners have come forward with no evidence, or argument, which convinces us that the word "fine," as used in the late 18th century, would have encompassed private civil damages of any kind. Indeed, the term "damages" was also in use at the time the Eighth Amendment was drafted and ratified, and had a precise meaning limited to the civil context. Cunningham defined damages as follows: "in the Common law it is a part of what the jurors are to inquire of, and bring in, when an action passeth for the plaintiff: . . . [Damages] comprehend a recompence for what the plaintiff or demandant hath suffered, by means of the wrong done to him by the defendant or tenant." 1 Cunningham, supra; see also 1 Tomlins, at 498 (same); 1 Bouvier, at 360 (same). The dichotomy between fines and damages was clear.
8. For particular examples, see the 1683 Trial of Thomas Pilkington, and others, for a Riot, 9 State Tr. 187, and the 1684 Trial of Sir Samuel Barnardiston, 9 State Tr. 1333.
9. Justice Story was of the view that the Eighth Amendment was "adopted as an admonition to all departments of the national government, to warn them against such violent proceedings as had taken place in England in the arbitrary reigns of some of the Stuarts." 2 J. Story, Commentaries on the Constitution of the United States 624 (T. Cooley 4th ed. 1873).
10. By 1689, the definition of "fines" and "damages" discussed in nn. 6 and 7, supra, already had taken hold. For a definition of "damages," see T. Blount, A Law-Dictionary (1670) (unpaginated).
11. See Treatise on the Laws and Customs of the Realm of England Commonly called Glanvill 127-128 (G. Hall ed. 1965) (written between 1187-1189); Introduction to the Curia Regis Rolls, 1199-1230 A.D., in 62 Publications of the Selden Society 465 (C. Flower ed. 1944). Defendants could be amerced as well. "The justices did not hesitate to extract amercements from both parties when the occasion arose." Id., at 466. For a wide variety of conduct for which amercements were assessed on parties, see Beecher's Case, 8 Co. Rep. 58a, 59b-60a, 77 Eng. Rep. 559, 564-565 (Ex. 1609); 1 Select Pleas of the Crown (A.D. 1200-1225), in 1 Publications of the Selden Society 2, 4, 5-6, 7-8, 9-10, 13, 43-44, 90 (F. Maitland ed. 1888); 62 Selden Society, at 464-467.
12. See id., at 467; Pleas of the Crown for the County of Gloucester: A.D. 1221, p. xxxiii (F. Maitland ed. 1884) (Pleas for Gloucester); see generally 1 Selden Society.
13. Without discussing the complex origins of civil damages in detail, see 2 Pollock & Maitland 522-525; 62 Selden Society, at 473-479, we can say confidently that damages and amercements were not the same. In the time before Magna Carta, damages awards were rare, 2 Pollock & Maitland 523, the more usual relief being a fixed monetary payment or specific relief. But "[t]he distinction between amercements and damages is well known. The former were payable to the crown after legal action or for an error or ineptitude which took place in its course; the latter represented the loss incurred by a litigant through an unlawful act. They were payable to [the private litigant]." 62 Selden Society, at 463.
14. "A Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; (2) and a Merchant likewise, saving to him his Merchandise; (3) and any other's villain than ours shall be likewise amerced, saving his wainage, if he falls into our mercy. (4) And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. (5) Earls and Barons shall not be amerced but by their Peers, and after the manner of their offence. (6) No man of the Church shall be amerced after the quantity of his spiritual Benefice, but after his Lay-tenement, and after the quantity of his offence." Magna Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at Large 5 (1769), confirmed, 25 Edw. I, ch. 1 (1297), id., at 131-132.
15. See generally McKechnie 278; G. Smith, A Constitutional and Legal History of England 129, 131 (1955). Although most amercements were not large, see McKechnie 287; 2 Pollock & Maitland 513, being placed in the King's mercy meant, at least theoretically, that a man's estate was in the King's hands, and it was within the King's power to require its forfeit. See 62 Selden Society, at 463; McKechnie 71-72 (one called to the King's service who did not go was in mercy, and his estate was subject to forfeiture). Amercements also resembled a form of taxation, particularly when used against entire townships. See Pleas for Gloucester xxxiv.
16. According to Pollock and Maitland, after the court found a person to be in the King's mercy, and that person obtained a pledge for the payment of whatever sum was to be amerced, the court would go on to other cases. At this point the person had not yet been amerced. "At the end of the session some good and lawful men, the peers of the offender (two seem to be enough) were sworn to 'affeer' the amercements. They set upon each offender some fixed sum of money that he was to pay; this sum is his amercement." 2 Pollock & Maitland 513; see also Pleas for Gloucester xxxiv. This procedure indicates that amercements were assessed by a "jury" different from that which considered the case.
17. See, e.g., Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons from History, 40 Vand.L.Rev. 1233 (1987); Note, The Constitutionality of Punitive Damages Under the Excessive Fines Clause of the Eighth Amendment, 85 Mich.L.Rev. 1699 (1987).
18. So, for example, when the House of Lords placed certain limits on the types of cases in which exemplary damages could be awarded, Lord Devlin's extensive discussion mentioned neither Magna Carta or the Excessive Fines Clause of the 1689 Bill of Rights, nor did it suggest that English constitutional or common law placed any restrictions on the award of exemplary damages other than those discussed above. Rookes v. Barnard, [1964] A.C. 1129, 1221-1231. In fact, Lord Devlin recognized that his suggested alterations were a departure from the traditional common-law view. Id., at 1226. We find it significant that other countries that share an English common-law heritage have not followed the decision in Rookes, and continue to allow punitive or exemplary damages to be awarded without substantial interference. See, e.g., Uren v. John Fairfax & Sons, [1967] A.L.R. 25, 27 (Australia) (declining to follow Rookes ); Bahner v. Marwest Hotel Co., 6 D.L.R.3d 322, 329 (1969) (Canada) (same); Fogg v. McKnight, [1968] N.Z.L.R. 330, 333 (New Zealand) (same).
19. In Weems, Justice McKenna conti ued his writing for the Court: "[Constitutions] are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality." 217 U.S., at 373, 30 S.Ct., at 551.
20. Among the first cases to make explicit reference to exemplary damages was Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K.B.1763), where the court refused to set aside a jury award of £ 300 where the plaintiff's injury would have been compensated by £ 20. Upholding what it referred to as an award of "exemplary damages," the court noted that "the law has not laid down what shall be the measure of damages in actions of tort; the measure is vague and uncertain, depending on a vast variety of causes, facts, and circumstances," and declined to "intermeddle" in the damages determination. "[I]t must be a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a Court to grant a new trial for excessive damages." Id., at 206-207, 95 Eng.Rep., at 768-769. Another case decided that year stated the applicable principle with particular clarity: "Damages are designed not only as a satisfaction to the injured person, but likewise as punishment to the guilty, to deter from any such proceeding for the future and as a proof of the detestation of the jury to the action itself." Wilkes v. Wood, Lofft. 1, 18-19, 98 Eng.Rep. 489, 498-499 (K.B.). Other English cases followed a similar approach. See, e.g., Roe v. Hawkes, 1 Lev. 97, 83 Eng.Rep. 316 (K.B.1663); Grey v. Grant, 2 Wils. 252, 253, 95 Eng.Rep. 794, 795 (K.B.1764); Benson v. Frederick, 3 Burr. 1846, 97 Eng.Rep. 1130 (K.B.1766).
21. In United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), we held that the Double Jeopardy Clause of the Fifth Amendment places limits on the amounts the Federal Government may recover in a civil action, after the defendant already has been punished through the criminal process. While our opinion in Halper implies that punitive damages awarded to the Government in a civil action may raise Eighth Amendment concerns, that case is materially different from this one, because there the Government was exacting punishment in a civil action, whereas here the damages were awarded to a private party. We noted in Halper that nothing in our opinion "precludes a private party from filing a civil suit seeking damages for conduct that previously was the subject of criminal prosecution and punishment. The protections of the Double Jeopardy Clause are not triggered by litigation between private parties." Id., at 451, 109 S.Ct., at 1903 (emphasis added). We left open the question whether a qui tam action, in which a private party brings suit in the name of the United States and shares in any award of damages, would implicate the Double Jeopardy Clause. Id., at 451, n. 11, 109 S.Ct., at 1903, n. 11. We leave the same question open for purposes of the Eighth Amendment's Excessive Fines Clause.
22. Because of the result we reach today, we need not answer several questions that otherwise might be necessarily antecedent to finding the Eighth Amendment's Excessive Fines Clause applicable to an award of punitive damages, and that have not been briefed by the parties. We shall not decide whether the Eighth Amendment's prohibition on excessive fines applies to the several States through the Fourteenth Amendment, nor shall we decide whether the Eighth Amendment protects corporations as well as individuals.
23. Petitioners claim that the due process question is within the "clear intendment" of the objection it has made throughout these proceedings. Our review of the proceedings in the District Court and the Court of Appeals shows that petitioners' primary claim in both of those courts was that the punitive damages award violated Vermont state law. Petitioners also argued that the award violated the Eighth Amendment. We fail to see how the claim that the award violates due process is necessarily a part of these arguments. We shall not assume that a nonconstitutional argument also includes a constitutional one, and shall not stretch the specific claims made under the Eighth Amendment to cover those that might arise under the Due Process Clause as well. Although in particular cases we have applied the doctrine petitioners advance, see Braniff Airways, Inc. v. Nebraska Bd. of Equalization and Assessment, 347 U.S. 590, 598-599, 74 S.Ct. 757, 762-763, 98 L.Ed. 967 (1954), this is not a case where a respondent is making arguments in support of a judgment. See Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, n. 6, 103 S.Ct. 2979, 2983, n. 6, 77 L.Ed.2d 605 (1983); Dandridge v. Williams, 397 U.S. 471, 475-476, n. 6, 90 S.Ct. 1153, 1156-1157, n. 6, 25 L.Ed.2d 491 (1970). In the absence of a developed record on the issues relevant to this due process inquiry, we shall not stretch the "clear intendment" doctrine to include this case, as we do not think that the due process question is "only an enlargement" of the Eighth Amendment inquiry. Although the due process analysis of an award of punitive damages may track closely the Eighth Amendment analysis suggested by petitioners, we shall not assume that to be the case and shall not attempt to decide the question in the absence of a record on the due process point developed in the District Court and the Court of Appeals.
24. The law of punitive damages in Vermont is typical of the law in most American jurisdictions. The doctrine has long standing. As far back as 1862, the Supreme Court of Vermont noted that the law on exemplary damages was "long settled in this state." Nye v. Merriam, 35 Vt. 438, 446. A Vermont jury may award punitive damages only if the evidence supports a finding that the defendant acted with malice, see, e.g., Appropriate Technology Corp. v. Palma, 146 Vt. 643, 647, 508 A.2d 724, 726 (1986), or "malice or wantonness shown by the act," Rogers v. Bigelow, 90 Vt. 41, 49, 96 A. 417, 420 (1916). Punitive damages awards may be set aside if grossly and manifestly excessive. See Glidden v. Skinner, 142 Vt. 644, 648, 458 A.2d 1142, 1145 (1983). The Vermont Supreme Court has declined to adopt a rule of proportionality between compensatory and punitive damages, Pezzano v. Bonneau, 133 Vt. 88, 92, 329 A.2d 659, 661 (1974), but does not allow punitive damages to stand when an award of compensatory damages has been vacated, Allard v. Ford Motor Credit Co., 139 Vt. 162, 164, 422 A.2d 940, 942 (1980). Once a plaintiff has presented sufficient evidence of malice, evidence of " 'the defendant's pecuniary ability may be considered in order to determine what would be a just punishment for him.' " Lent v. untoon, 143 Vt. 539, 550, 470 A.2d 1162, 1170 (1983), quoting Kidder v. Bacon, 74 Vt. 263, 274, 52 A. 322, 324 (1902).
25. We have never held expressly that the Seventh Amendment allows appellate review of a district court's denial of a motion to set aside an award as excessive. Although we granted certiorari in two cases in order to consider the issue, in both instances we found it unnecessary to reach the question when we decided the case. See Neese v. Southern R. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60 (1955) (even assuming appellate review power under the Seventh Amendment, Court of Appeals was not justified in reversing denial of new trial on the particular facts of the case); Grunenthal v. Long Island R. Co., 393 U.S. 156, 158, 89 S.Ct. 331, 332, 21 L.Ed.2d 309 (1968) (same). In light of the result we reach today, we follow the same course here.
26. This is particularly true because the federal courts operate under the strictures of the Seventh Amendment. As a result, we are reluctant to stray too far from traditional common-law standards, or to take steps which ultimately might interfere with the proper role of the jury.