Shaw, C. J.
The petitioner sets forth that he is a prisoner in the house of correction in the city of Boston, upon a mittimus or warrant, issued by the police court of the city, under a conviction in that court, and a sentence thereon to an imprisonment at hard labor in the house of correction for the term of six months.
It appears by the complaint and conviction thereon, upon a plea of guilty, that he was charged and convicted of stealing in a building, to wit, in the shop of one Horace Mecum, one gold ring, of the value of fourteen dollars, of the goods and chattels of said Mecum.
1. It is contended, on the part of the petitioner, that this conviction and commitment are inoperative and void, for the reason that the police court, though it had jurisdiction to receive this complaint, and, upon the arrest of the party, to examine and bind him over for trial, still had no jurisdiction to try and pass sentence upon him; because the complaint and judgment manifestly [330]*330describe an aggravated, and not a simple larceny, an offence which, by the terms of the law prescribing a punishment therefor, is punishable by imprisonment in the state prison, not more than five years, or by fine and imprisonment ir; the jail or house of correction. Rev. Sts. c. 126, § 14; c. 143, § 19. This we suppose to be the true distinction-; that if a warrant of commitment be issued by a court of general jurisdiction, although it be erroneous and not conformable to law, it will still stand good, unless examined and reversed by writ of error or otherwise; but if a court of special , and limited jurisdiction exceed the authority conferred, and issue a warrant of commitment, the judgment is void, and not merely voidable, and the commitment under it is illegal, and may be inquired into on habeas corpus, and if the commitment is wrong, th'e party may be discharged.
This we have regarded as a very grave-and important question, the more so because we understand that a difference of opinion and adjudication has arisen, upon this subject, between the municipal court of this city and the police court; and such a difference must obviously be highly unfavorable to the administration of justice in the courts of criminal jurisdiction
In support of the jurisdiction of the police court, it is urged, that this jurisdiction is expressly conferred by St. 1855, c. 448. And it becomes necessary therefore to examine that statute.
The first section provides that“ the several police courts of this commonwealth shall have concurrent jurisdiction with the municipal court of Boston and the court of common pleas [that is, the police court of Boston with the municipal court of Boston, and the police courts in other counties with the court of common pleas for such counties] of all larcenies where money [331]*331or other property stolen shall not be alleged to exceed the value of fifty dollars ; in all which cases the punishment imposed may be such as the court of common pleas and the municipal court are authorized to inflict by existing laws.”
Construed by itself, this would appear to authorize the police court to hear and determine all cases of larceny, where the property stolen does not exceed $50, and by these terms would include aggravated as well as simple larcenies, limited only by the amount of the property stolen. But it is argued on the other hand that, construed in reference to all the previous statutes on the same subject, according to the well known rule of exposition that all statutes in pari materia are to be taken into consideration, the legislature must necessarily have intended to limit this jurisdiction to cases of simple larceny only. The argument is, that if it can be shown that the purpose of the legislature was to confine this jurisdiction to simple larcenies alone, then it would follow that the terms “ all larcenies ” would be controlled and modified, and keep the jurisdiction of police courts within the original prescribed limits, that of justices of the peace in cases of petit larceny and other trivial offences. But it-is a question whether, if it could be construed to be limited to simple larceny, this consequence would follow; because it is expressly provided by this St. of 1855, that such police court shall have the power to impose the same punishment as the court of common pleas and municipal court. But by the Rev. Sts. c. 126, § 17, such simple larceny, of property under $100, upon a conviction in an upper court, may be punished by imprisonment one year in the state prison. The same power therefore would, by the terms of this act, be given to the police court by this statute, whether in cases of simple or aggravated larceny.
It becomes necessary, therefore, it seems to us, in order to put a just construction on this statute, to look back as far at least as the Rev. Sts., and consider these and the subsequent legislative acts in reference to the principles and provisions of the Constitution of the Commonwealth.
In considering what are the provisions of the Rev. Sts. for the punishment of larcenies, we must distinguish between cases [332]*332where the real offence intended to be punished is stealing, and the cases where another offence is the principal thing against which the penalty is levelled, although stealing is stated as an ingredient; such as cases of breaking and entering a dwelling-house, shop, vessel or meeting-house, by night or by day, and stealing therefrom. These are either burglary, or acts in the nature of burglary, where the theft is not the leading or princi pal object of punishment. These are enumerated in the Rev. Sts. c. 126, §§ 9-14, and are all of this character, except perhaps the first clause of § 14, “ stealing in a dwelling-house, shop,” &c.
Then come §§ 15 and 16, and enumerate several aggravated larcenies, that is, cases where the gravamen of the offence is stealing, but aggravated by the circumstance that it was in a building on fire, or of property exposed by removal on an alarm of fire, or from the person of another. In these cases, the value of the property thus stolen is not stated as an ingredient or qualification of the offence; but it derives its aggravated character from the place, time or circumstances under which a larceny to any amount, however small, may be brought within its provisions. The terms “ aggravated ” larceny, and “ simple ” larceny, under our statutes, are not to be confounded with the terms “ grand ” and “ petit ” larceny at common law, where the distinction consisted solely in the value of the property stolen. Section 17 enumerates a long list of articles, apparently intending to include every species of property susceptible of being the subject of larceny, and provides that the stealing of any or either of them, mentioning no time or place as matter of aggravation, shall be punished, if the value be over $100, by imprisonment in the state prison not exceeding five years, or by fine and imprisonment, and, if under $100, by state prison not exceeding one year, or by fine and imprisonment. These are all simple larcenies, not because so denominated in the statute, but because no qualification is annexed to render them aggravated * and the value of the property is made an essential element in fixing the punishment.
Here then we have, in addition to burglarious offences, of which stealing may be a part, two distinct classes or species of [333]*333larceny, which may be, conveniently enough, denominated “ aggravated ” and “ simple,” because they are differently described and punished; the former, manifestly being more severely punished, and without regard to value, must be deemed aggravated; and the latter, attended by none of the aggravating circumstances, and varied in punishment only by the larger or smaller alleged value of the property stolen, are simple.
Then comes the 18th section conferring jurisdiction; and it provides, that justices of the peace and police courts shall have concurrent jurisdiction with the court of common pleas and municipal court of all the larcenies mentioned in the preceding section namely, simple larcenies, when the property stolen is not alleged to exceed $15, and of all other larcenies whatever, when the property stolen is not alleged to exceed $5.
What was the legal effect of this distinction ? If, as is suggested in the argument against the jurisdiction of the police court, this was not intended to include aggravated larcenies under $5, but other larcenies of like kind, which might have been omitted in the specific enumeration — that is, all simple larcenies — then there could have been no reason for limiting such “ other larcenies ” to stealing property of smaller value, only $5; but it would have included all others of like kind, without distinguishing the value. Besides, the justices’ jurisdiction, extending to $15 in value, is limited to the larcenies mentioned in the sixteenth section, that is, simple; then a further jurisdiction, in all other larcenies of property not exceeding $5, seems necessarily to extend the jurisdiction to the other larcenies described in the preceding sections, which were the aggravated. The more natural supposition is, that the legislature well knew that, although a theft may, in many cases, be aggravated by stealing from a shop an article of small value, it may still, in point of fact, in many other cases, come under the category of a petty offence, punishable by fine or imprisonment, or at most for a brief period in the house of correction. Stealing a silver spoon from a shop may, under some circumstances, be no more heinous an offence than stealing the same article in a field to which it has been taken for use and left exposed.
[334]*334It seems to us therefore, that the most natural construction of these clauses, taken together, is this; that jurisdiction was intended, according to a long course of practice, to be given to a justice of the peace or police court, in cases of petty offences and small pilfering, though amounting in law to larceny, and, of course, felony at common law—in case of simple larceny to the amount of $15, and in an aggravated larceny not exceeding $5 ; and that these should be deemed petty, and be punishable by a justice of the peace; but the limitation of his power, in cases where he should finally try and decide and pass sentence, was to be found in the express limitation of the maximum of punishment to fine and imprisonment, excluding the state prison.
It seems manifest therefore, that the legislature did define certain offences by one general designation, and to a certain extent gave a concurrent jurisdiction to different tribunals, and did provide, that an offence coming under that designation, if conviction was had, and in one of those tribunals, might be punishable by imprisonment one year in the state prison ; but if conviction was had before a justice of the peace, it would not be subjected to a state prison punishment.
This would, at first view, seem to be an anomaly in the law ; but probably it was founded on the obvious consideration, that a law, to prohibit and punish offences, must, in its nature, be prospective; and must be general in its terms, broad enough to embrace the most heinous offences, and also the most trivial, which can be embraced in such general definition, the punishment varying from one very severe to one very slight, according to the actual nature of the offence. But when it appears, from the complaint actually made, and the facts adduced in support of it, that it is in fact a trivial and unimportant offence in its actual guilt, it shall be punished accordingly; and the legislature probably thought it not unsafe, when on such complaint being made and evidence offered, it should appear to fall within the class of petty offences, to permit the justice of the peace or police court to proceed to try the party complained of, saving to him an unqualified right of appeal to a court sitting with a [335]*335jury, such a right of appeal being attended with no other bur den but that of giving bail or standing committed, not by way of punishment, but simply to secure the person of the accused to be ready to take his trial and abide the judgment. This inconvenience every party, from the necessity of the case, must be subject to, during the time which elapses between his arrest and trial; and is an inconvenience to which the party thus convicted would be subject, if, instead of a conviction and appeal, the justice of the peace or police court had ordered him, after examination, to give bail for his appearance at the higher court for a first trial, or stand committed, which would be the only alternative.
That this was not hasty or inadvertent legislation, is manifest from the fact, that the same provisions are made as to the relative jurisdiction and powers of courts of common pleas and justices of the peace in § 23 of the same chapter, in relation to receivers of stolen goods.
The question then recurs, whether there is any statute, since the Rev. Sts., which enlarges the jurisdiction of justices of the peace or police courts, so as, in terms, to authorize them to sentence a convict, in any case, to the state prison. Several statutes have been cited; we will refer to them.
The St. of 1843, c. 1, § 1, provides for larceny in a dwelling-house in the night time. No jurisdiction is given to justices of the peace. .
The St. of 1845, c. 28, provides for stealing in the night time from any shop, office, bank, &c.
The St. of 1851, c. 151, extends the provisions of the law of larceny to trespass on the realty, and carrying away property when severed; and by § 3 “ such courts and justices are to have jurisdiction of such simple or aggravated larcenies,” as if the property were personal.
In the St. of 1851, c. 156, the three first sections relate to cases of breaking and entering. By § 4, larceny “ by stealing in any building ” is punishable by state prison, or fine and imprisonment in the jail or house of correction. We do not perceive that this provision vanes the law; except in an increase of the [336]*336punisnment, it does not appear to alter the jurisdiction as given by the Rev. Sts.
The St. of 1852, c. 4, is an enlargement and amendment of the St. of 1851, c. 156. The original act, of course, by its general effect, without special provisions, gave jurisdiction to the court of common pleas and municipal court. But this statute, as to the St. of 1851, c. 156, § 4, which provides a punishment for aggravated larceny, not varying the maximum or minimum of punishment, gives jurisdiction to justices of the peace and police courts, to hear, try and punish, by fine not exceeding $20, or by imprisonment in the common jail or house of correction, not exceeding one year, where the property stolen does not exceed $10.
Such, we believe, was the state of the law upon this subject, when the St. of 1855 was passed. By every previous act, if the law did in terms give to a police court or justice of the peace jurisdiction, at their discretion, to hear, decide and pass sentence, it was always accompanied with the two restrictions, that the accused had an unqualified right of appeal to a court sitting with a jury, and a trial by jury therein; and the power of inflicting punishment was limited, as its maximum, to fine and imprisonment in jail or house of correction, and did not extend to imprisonment in the state prison.
The St. of 1855, c. 448, extends the jurisdiction of police courts, (not of justices of the peace,) by which they shall have concurrent jurisdiction with the court of common pleas or municipal court, when the property alleged to be stolen does not exceed $50, in which cases the punishment imposed may be such as the court of common pleas and municipal court are authorized to inflict by existing laws. By this reference to existing laws, and finding that those courts, in cases of simple larceny under $100, including of course all cases under $5, have power to punish by confinement to hard labor in the state prison, it follows that this statute purports to confer a like power on police courts. Now, as a police court sits without a jury, and, according to the general policy of the law, exercises the powers of a justice of the peace within certain local limits, no distinc[337]*337tion is perceived between conferring this jurisdiction on police courts and on justices of the peace by the legislature.
We are then brought, in the construction of this statute, to two questions: 1st. Whether this jurisdiction is limited to simple larcenies only, and does not extend in any case to aggravated larcenies; and 2d. If it does extend to aggravated larcenies, and authorizes a police court to sentence to the state prison, for one or five years, whether the statute is not unconstitutional, inoperative and void.
For the reasons already given, we are of opinion that this statute, by its terms, and construed with reference to all other statutes on the subject, cannot be limited in its terms to simple larcenies; but that by “ all larcenies ” was intended that class of larcenies known as aggravated, (not of course where a breaking and entering a dwelling-house or shop, by night or day, enters into and constitutes the gravamen of the offence,) and that it cannot be limited to simple larcenies. But even if we could construe the St. of 1855 as intended by the legislature to limit the jurisdiction to simple larceny only, the section authorizing a police court to impose the same punishment which a court of common pleas or municipal court may inflict would authorize the police court to sentence one, convicted of simply larceny, to the state prison for one year.
2. But the next question is, if it does bear the construction that it extends to aggravated larceny, whether it was competent for the legislature to make such a law, or, in other words, whether it is not repugnant to the Constitution of this commonwealth, and so inoperative and void, so that, if the conviction on which the petitioner is committed stands upon the authority of this statute alone, it is not illegal 1 And upon this last point, we think it must depend upon this statute only.
By the revised statutes, as we construe them, justices of the peace and police courts had jurisdiction to try and pass sentence in cases of simple larceny, where the property alleged to be stolen does not exceed $15, and in aggravated larcenies, not coupled with any burglarious act, where the property does not exceed $5. The St. of 1851, c. 156, § 4, provided for punishing [338]*338an aggravated larceny, by stealing in a building, under the usual penalty of state prison five years, or by fine, or by imprisonment in the house of correction or county jail. Then, by St. 1852, c. 4, this last statute was altered and amended by giving police courts and justices of the peace jurisdiction to try, and decide and pass sentence, by fine not exceeding $20, or imprisonment in the jail or house of correction not exceeding one year, where the property stolen does not exceed $10.
It appears therefore, that no statute, previous to that of 1855, has extended this jurisdiction, in case of aggravated larceny, to any case where -the property alleged to have been stolen exceeds $10. But in the case before us, the complaint against Jones alleged that the property stolen from a building was of the value of $14, and therefore we think it was not within the jurisdiction of the police court, unless by the St. of 1855. We are therefore necessarily brought to the inquiry, Whether- that act is uneonstitional ? Such a question must always be regarded as one of great delicacy, and will be entertained by a judicial tribunal in those cases only, where it is essential to the public welfare or the just rights of parties.
It first occurred to us to see whether we might not consider the two parts of the St. of 1855, to wit, that which confers jurisdiction on police courts, concurrently with the court of common pleas and municipal court, where the property does not exceed in value $50; and that part which gives to police courts the same power with the court of common pleas to inflict punishment, including imprisonment in the state prison; as distinct.
It is undoubtedly a correct rule of construing a statute in reference to its constitutionality, to consider only such part void as is plainly repugnant to the Constitution ; and therefore, where there are different provisions in the same statute, so distinct and independent, that the one may not have been the motive or inducement to the other, one may be held valid and the other void. Ex parte Wellington, 16 Pick. 95—97. Fisher v. McGirr, 1 Gray, 21. But in bringing the case in question to this test, we think it cannot fall within this distinction. Both in the Rev. Sts. and the St. of 1852, the value of the property [339]*339stolen seems to have been regarded as an important ingredient in determining whether or not a police court should have jurisdiction to try and pass sentence, where the nature of such punishment was expressly so limited as to exclude imprisonment in the state prison. An aggravated larceny, where the property stolen is $>50, can hardly come under the denomination of pilfering, or a petty offence; on the contrary, it is an offence of considerable magnitude, in view of which we are not prepared to say, that the legislature would have extended the jurisdiction to a police court, if they had not accompanied it with a power in that court to inflict the same punishment as the court of common pleas or municipal court was authorized to inflict. We think therefore that the two parts of this enactment were not separate and independent of each other, but the one' may have been the motive, inducement or consideration on which the other was founded, and that they must stand or fall together. Warren v. Mayor Aldermen of Charlestown, 2 Gray, 99.
The provisions of the Constitution, vesting power in the legislature to make all useful and wholesome laws, and to erect and create judicatories and courts of record or other courts for the hearing and determining all crimes and offences, if there were no restraint upon such power in the Constitution, would be broad enough to warrant the enactment in question. But it is true that, by the Bill of Rights, various restrictions are placed upon this general power, intended for the better security of persons accused of crime against arbitrary and hasty public prosecutions ; and the question is, whether the Bill of Rights, by its provisions, or by necessary implication, does not restrict the legislature from making laws subjecting any party to an infamous punishment, by a prosecution not commencing with an indictment or presentment of a grand jury ? If not so restrained, then it is manifest that, under the law which we have before us, the magistrate might sentence a party accused to imprisonment in the state prison for five years; and it would also follow, that the legislature might make a law, giving to the justices of peace and police courts, sitting without a traverse jury, the [340]*340power to hear, determine and pass sentence, to any extent of punishment warranted by law, provided only that such authority be accompanied by a provision, that the party convicted shall have a clear and unqualified right of appeal to a court sitting with a traverse jury, with a right of trial by such jury, still without the previous intervention of a grand jury ; and thus, by statute, grand juries may be dispensed with altogether, in cases ■not capital. These consequences of the construction of the Constitution in favor of the validity of this law are so momentous, that we are called upon to give it the most serious and deliberate consideration, before deciding this question in the affirmative.
In considering constitutional provisions, especially those embraced in the Declaration of Rights, and the amendments of the Constitution of the United' States, in the nature of a bill of rights, we are rather to regard them as the annunciation of great and fundamental principles, to be always held in regard, both morally and legally, by those who make and those who administer the law, under the form of government to which they are appended, than as precise and positive directions and rales of action; and, therefore, in construing them, we are to look at the spirit and purpose of them, as well as the letter. Many of them are so obviously dictated by natural justice and common sense, and would be so plainly obligatory upon the consciences of legislators and judges, without any express declaration, that some of the framers of state constitutions, and even the convention which formed the Constitution of the United States, did not originally prefix a declaration of rights.
Art. 12 in our own bill of rights is as follows: “ No subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself; and every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and be fully heard in his defence, by himself or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities ot [341]*341privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land. And the legislature shall not make anj law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy without trial by jury.”
The last clause, which seems to have been added for greater caution, prohibiting the legislature from making any law which shall subject any person to a “ capital” or “infamous punishment,” excepting for the government of the army and navy, without trial by jury, is somewhat more explicit than the preceding clause, “ judgment of his peers,” and may be equivalent to the clause in the sixth article of amendment of the Constitution of the United States, declaring that, “ in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” We believe it has been so practically understood ; and where, by the terms of any law, a justice of the peace or police court has been authorized to hear and pass sentence, it has always been accompanied by a right of appeal. And we believe it has been generally understood and practised here and in Maine, and perhaps in other states having a similar provision, that as the object of the clause is to secure a benefit to the accused, which he may avail himself of or waive, at his own election; and as the purpose of the provision is to secure the right, without directing the mode in which it shall be enjoyed; it is not violated by an act of legislation, which authorizes a single magistrate to try and pass sentence, provided the act contains a provision that the party shall have an unqualified and unfettered right of appeal, and a trial by jury in the appellate court, subject only to the common liability to give bail, or to be committed to jail, to ensure his appearance and to abide the judgment of the court appealed to. This is a necessary inconvenience, as is also the delay of the trial till the sitting of such court; they are the same and no greater than they would be in case the magistrate, instead of passing sentence, should, on examination, bind the accused over, or, as the necessary alternative, commit him to jail. Such seems to have [342]*342been the construction of a similar provision in other states. Emerick v. Harris, 1 Binn. 416. Murphy v. People, 2 Cow. 815. Jackson v. Wood, 2 Conn. 819. Beers v. Beers, 4 Conn. 535. Sullivan v. Adams, 3 Gray, 477. It appears to us, therefore, that such a provision is not void, as a violation of that clause, which, in criminal cases, secures to the accused a right of trial by jury.
Still this leaves the other question, whether a party can be made subject to a punishment for a term of years in the state prison, without indictment or presentment of a grand jury.
We are then to consider the prohibition to be found in the other part of the 12th article. In the commencement of the article, “no subject shall be held to answer for any crime or offence until the same is fully and plainly, substantially and formally, described to him,” the makers very accurately describe a good indictment; and it is very probable that this was the predominant idea in their minds, though an information, complaint or other form of charge might conform to the same requisitions, and therefore this provision is not conclusive. But the subsequent clause goes further: “ no man shall be arrested, imprisoned, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers, or the law of the land.”
This clause, in its whole structure, is so manifestly conformable to the words of Magna Charta, that we are not to consider it as a newly invented phrase, first used by the makers of our constitution ; but we are to look at it as the adoption of one of the great securities of private right, handed down to us as among the liberties and privileges which our ancestors enjoyed at the time of their emigration, and claimed to hold and retain as their birthright.
These terms, in this connection, cannot, we think, be used in their most bald and literal sense to mean the law of the land at the time of the trial; because the laws may be shaped and altered by the legislature, from time to time; and such a provision, intended to prohibit the making of any law impairing the ancient rights and liberties of the subject, would under such a construction be wholly nugatory and void. The legislature [343]*343might simply change the law by statute, and thus remove the landmark and the barrier intended to be set up by this provision in the Bill of Rights. It must therefore have intended the ancient established law and course of legal proceedings, by an adherence to which our ancestors in England, before the settlement of this country, and the emigrants themselves and their descendants, had found safety for their personal rights. Lord Coke, in commenting upon this clause of Magna Gharta — nisi per legem terree—adopts the construction that the clause meant “ without process of law, that is, by indictment or presentment of good and lawful men.” 2 Inst. 50. This may not be conclusive; but, being a construction adopted by a writer of high authority, before the emigration of our ancestors, it has a tendency to show how it was then understood.
Chancellor Kent, after setting forth the rights and liberties claimed by the people of this country, and in explanation of these words from Magna Gharta, says : “ The words by the law of the land, as used originally in Magna Gharta in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men,” and he relies on the authority of Lord Coke for the correctness of this exposition. 2 Kent Com. (6th ed.) 13.
The same view of this clause in our constitution is taken by Judge Story in his Commentaries on the Constitution. § 1783.
It is well understood that, prior to and during the American Revolution, and especially from and after the Declaration of Independence, when new constitutions for the states were to be formed, it was desirable that the form of government, and the powers vested in its different departments, should be expressed and limited, in written constitutions, being fundamental laws, emanating from the people, and unalterable, but by the same original authority; and for the better security of the rights of life, liberty and property, it was deemed essential that the fundamental principles of free government should be set down in a few plain, clear and intelligible propositions, for the better guidance and control, both of legislators and magistrates. This would be useful as a guide and monitor of public opinion, as a [344]*344check upon all who professed to be governed by a sense of duty strengthened by an oath to perform it, and would be more especially necessary where such written constitution itself was to be regarded as law for the government of the judicial department, and necessarily required to bring every legislative enactment to the test of the Constitution. Most of the state constitutions did contain these declarations, more or less detailed and explicit; but the general purpose was to assert and maintain the great rights of English subjects, as they had been maintained by the ancient laws, and the actual enjoyment of civil rights- under them. “ The sense of America was,” says Chancellor Kent, “ more fully ascertained, and more explicitly and solemnly promulgated, in the memorable Declaration of Rights of the first continental congress, in October 1774, and which was a representation of all the states except Georgia. That declaration contained the assertion of several great and fundamental principles of American liberty; and it constituted the basis of those subsequent bills of rights which, under various modifications, pervaded all our constitutional charters.” 2 Kent Com. 5, 6.
The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.
In summing up these privileges, as intended to be secured by the American constitutions, Chancellor Kent states them thus: “ The right of personal security is guarded by provisions transcribed into the constitutions in this country from Magna Gluvrta and other fundamental acts of the English parliament, and enforced by additional and more precise injunctions. The substance of them is, that no person, except on impeachment, and in cases arising in the naval and military service, shall be held to answer for a capital or otherwise infamous crime, or for any offence above the common law degree of petit larceny, unless [345]*345he shall have been previously charged on the presentment or indictment of a grand jury.” 2 Kent Com. 12.
The same view of the effect of the use of the term “ law of " the land,” as used in the American constitutions, has been adopted in the State of Maine, where it is held to be prosecution according to the due course of law, including trial by jury, and prosecution by indictment, for all the higher crimes and offences. Saco v. Wentworth, 37 Maine, 172. So in New York. By Bronson, J., in Taylor v. Porter, 4 Hill, 145.
We are then brought to the consideration of the corresponding provision in the Constitution of the United States, made and adopted seven or eight years after that of Massachusetts; and compare the two provisions together. It is well known how this provision, by way of amendment, originated. The original constitution, as reported by the federal convention at Philadelphia, contained no Bill of Eights, and it was strenuously objected to on that account. In order to ensure the adoption of the constitution in Massachusetts, it was proposed to com bine with the vote of ratification certain specified amendments, one of which was the clause afterwards adopted by way of amendment, as hereafter mentioned. This was proposed by John Hancock, the president of the convention, and this specific provision advocated by Governor Bowdoin and other members. The amendment, as adopted, art. 5, was as follows : “ No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.”
Could this provision be held to bind the several states in their legislation and jurisprudence, it would put the matter beyond doubt, except, perhaps, the difficulty of drawing the precise line between “ infamous ” and minor or petty offences. But we take it to be now well settled, by strong reasons as well as decisive authority, that this fifth amendment was designed solely to put a limit upon the authority of congress, in framing laws for the government of the United States, and did not extend to the [346]*346laws of the several states. Barron v. Mayor &c. of Baltimore 7 Pet. 243. Commonwealth v. Hitchings, 5 Gray, 485.
But as a commentary upon the less precise and explicit terms of our own declaration of rights, in providing that no subject shall be deprived of life, liberty or property, but by the judgment of his peers or the law of the land, it seems to us to have a legitimate bearing upon the question we are examining. It is the more significant when we consider that it originated in Massachusetts, a few years later, and was adopted by nearly the same set of public men, but after some other constitutions had been under discussion, and when the ideas of American statesmen on these subjects had become more exact and definite.
It having been stated by Lord Coke that, by the “law of the land ” was intended a due course of proceeding, according to the established rules and practice of the courts of common law, it may perhaps be suggested, that this might include other modes of proceeding, sanctioned by the common law, the most familiar of which are, by informations of various kinds, by the officers of the crown in the name of the king. But in reply to this it may be said, that Lord Coke himself explains his own meaning by saying, “ the law of the land,” as expressed in Magna Gharta% was intended due process of law, that is, by indictment or presentment of good and lawful men. And further, it is stated, on the authority of Blackstone, that informations of every kind are confined by the constitutional law to misdemeanors only. 4 Bl. Com. 310. And though it is true, that many misdemeanors are regarded as acts of criminality, highly injurious to the State, and punished with severity, yet they are of a grade inferior to treason and felony. And, in this country, though informations were probably more rare, yet we suppose they were in use mostly for the purpose of preventing negligence and enforcing the performance of public duties on the part of public officers, corporations and the like; yet Mr. Dane says, they are confined, by our constitutional laws, to mere misdemeanors, and adds that, by the constitutions of several individual states, and by an amendment of the Constitution of the United States, they cannot be used where either capital or infamous punishment is inflicted. 7 Dane Ab. 280.
[347]*347Thus it appears that Mr. Dane, eminent both as a statesman and jurist, and who was a contemporary with the authors of the constitutions, puts the same construction upon the Massachusetts Bill of Rights, and the amendment of the Constitution of the United States. The article in the Massachusetts Bill of Rights, in the clause following the “ law of the land,” adds, <£ and the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.” These terms, “ capital or infamous punishment,” used in contra distinction to all smaller and minor correctional punishments being embraced in the same article, and applicable to the two rights so similar, that of indictment by a grand jury, and a trial of that indictment by a traverse jury, are rightly held to apply to both of these subjects.
It seems therefore quite manifest, that the makers of the Constitution of the Commonwealth intended to make a marked distinction between crimes of great magnitude and atrocity, and to secure every person against accusation and trial for them without the previous interposition of a grand jury in the first instance; and to leave minor and petty offences to be prosecuted without these formalities, subject only to this restriction, that in all cases the party accused should have a right to a trial by jury, if he should desire it.
Then comes the practical difficulty, as before suggested, in ascertaining, in particular cases, what are infamous punishments, or, in other words, what are infamous crimes and offences. The technical distinction between felony and misdemeanor will not meet it; because all larceny is felony; and yet petty larceny or pilfering, associated as it is with vagrancy and other small and not well defined offences, has always been punishable by a magistrate or justice of the peace, both under the colonial and provincial governments, from the earliest settlement of the country. Indeed, offences not above the degree of petit larceny are put, by Chancellor Kent, by way of example, as offences not infamous, and therefore not within the constitutional restriction. Nor is it easy to perceive precisely what was [348]*348intended in the article, by the term “ infamous punishment.” In general terms, all punishments which touch a man’s person may, in a certain sense, be deemed disgraceful. The punishments in use under the colonial and provincial governments, were imprisonment in the common jail, hard labor in the work bouse or house of correction, pillory, sitting on the gallows, cropping one or both ears, branding on one or both cheeks, with indelible ink, the letter T for thief, or B for burglar, whipping, setting in the stocks; in case of larceny, restoration of threefold the value of the property stolen to the party injured, with a liability to be sold to service to pay it. Most of these must be deemed infamous, though, in fact, we are inclined to the belief that imprisonment in the common jail or work house was not formerly so regarded. And considering the ideas and usages which prevailed under the former governments of our state, it may well be doubted whether the penalty of sitting in the stocks, and whipping, limited to a small number of stripes, and confided to a magistrate or justice of the peace, were not regarded, at the time of the adoption of the Constitution, rather as correctional than as infamous punishments.
But whatever may have been the practical difficulty in distinguishing between infamous punishments and others, before the St. of 1812, c. 134, we think it was greatly relieved, if not removed, by that act, which made a radical change in the policy of the Commonwealth in regard to punishments for the higher and more atrocious crimes and offences. It provided that, on conviction before the supreme judicial court, (who, at that time, had exclusive jurisdiction of all such aggravated offences,) for any crime or misdemeanor then punishable by whipping, standing in the pillory, sitting on the gallows, or imprisonment in the common jail, the court might, in lieu of such punishments, sentence such convicts to suffer solitary imprisonment, and to be confined to hard labor for a time not exceeding five. years, without any limit as to the minimum. This, it will be recollected, took place soon after the state prison at Charlestown had been organized and got into full operation. This practically took away all the degrading and ignominious punishments formerly [349]*349provided by law; and if it did not in terms extend to all of them, because not included in the enumeration, the acts authorizing them were afterwards repealed, in terms, in 1836, by the repealing act accompanying the revised statutes.
Now, it seems to ns that, whether we consider the words “ infamous punishment ” in their popular meaning, or as they are understood by the Constitution and laws, a sentence to the state prison, for any term of time, must be considered as falling within them. The convict is placed in a public place of punishment, common to the whole state, subject to solitary imprisonment, to have his hair cropped, to be clothed in conspicuous prison dress, subjected to hard labor without pay, to hard fare, coarse and meagre food, 'and to severe discipline. Some of these a convict in the house of correction is subject to ; but the house of correction, under that and the various names of workhouse and bridewell, has not the same character of infamy attached to it. Besides, the state prison, for any term of time, is now by law substituted for all the ignominious punishments formerly in use; and, unless this is infamous, then there is now no infamous punishment, other than capital. Now, when we consider that, since the adoj, Mon of the constitution, no act has been passed, before the one now under consideration, giving jurisdiction to a justice of the peace or police court, to try, decide and pass sentence, and no such jurisdiction has been exercised or claimed, unless where either, first, the statute creating and punishing the offence has limited the punishment to a penalty less than the state prison ; or second, where, if the punishment of the offence was not thus limited, the power of a justice of the peace or police court, in cases where they were authorized to try and pass sentence, has not thus limited the punishment by the statute giving the jurisdiction ; it leads to a strong conclusion of the general understanding of the legislators and jurists of Massachusetts, that punishment in the state prison is an infamous punishment, and cannot be imposed without both indictment and trial by jury.
We have already suggested, but it may be proper to repeat in conclusion, that although this jurisdiction does authorize a [350]*350justice of the peace or police court to pass sentence, it does not necessarily defeat or impair the right of trial by jury, by appeal; yet, as such trial on the appeal must necessarily be a trial on the original complaint, without indictment, it does take away that shield of protection from a party accused of crime, intended for his protection and security, when the punishment is infamous. As the statute in question does purport to confer on a police court the power to punish a convict, by the “ infamous punishment ” of imprisonment in the state prison, and the convict might be so punished by the police court, and, on appeal, by the appellate court, without an indictment by the grand jury, the court are of opinion that the act is unconstitutional, and, of course, inoperative and void; .not because it confers jurisdiction on a police court, to take cognizance of an aggravated larceny, on complaint, and try and pass sentence; but because it authorizes a police court to punish by confinement in the state prison, both for aggravated and simple larceny. It follows, of course, that the jurisdiction, under which the petitioner was sentenced, was not legally conferred on the police, court, and therefore that he is not legally liable to be held under the commitment, and, on these facts appearing on a return of the habeas corpus, he will be entitled to his discharge from confinement.
See Commonwealth v. Brown, 21 Law Reporter, 23 ; Commonwealth v. Mehegan, 21 Law Reporter, 33.