Hosmer, Ch. J.
In this case three objections have been made to the court’s rendering judgment against the prisoner.
The first is, that the prosecution is not founded oil statute. It is contended, that there never existed a common law defining crimes ; and if there had been one formerly, that the late constitution would have abolished it. On this head of objection I am incapable of entertaining a doubt. The principle contended for is perfectly novel. The country from whence our ideas of jurisprudence have principally emanated, and our sister states, have a common law defining and punishing crimes ; and it is remarkable, that the written constitutions, adopted by the latter, have made no difference in their practice on this subject. It is indispensibly necessary, that there -should exist a common law, on the broad principles of public convenience and necessity, defining crimes, and prescribing adequate punishments. To determine, by statute, every of-fence, and direct the punishment which shall be inflicted, has not, so far as I know, ever been attempted, and would be nearly impracticable. The community must, at least, be left exposed to injuries the most atrocious ; and the evils resulting would be much greater, than any reasonable mind will anticipate, from the exercise of a sound discretion, in the application of principles and analogies, which the common law supplies. Instead, however, of theory, we have well established 'rules to guide us on this interesting subject. A series of precedents, from a period beyond the memory of man, have settled the question now raised ; during which period, offences in this state, have been defined and punished, at common law. If we have any established law, this is immoveably fixed on the basis of principle, often recognized, and decisions uniformly rendered. The effect of the constitution on this point has been so entirely mistaken, that I am at a loss to conceive on what possible ground, it can be brought to-bear on the question. It must have been supposed by the objector, that the constitution implies an abolition of every rule of action preceding it, and the commencing life anew, without the benefit -of a single practical lesson of wisdom derived from our predecessors, or even from ourselves.
In reply to a supposition so • extravagant, I have already opposed the practice of those of our sister states, who have adopted written constitutions. It may likewise be effectually re[115]*115sisted, by an explis.it provision of the constitution itself,
A second objection has been presented, that the statute against breaking the peace has repealed the common law on the subject before us. This act prescribes a punishment and fine for an assault and battery; and if the offence be aggravated by some notorious and high-handed crimes, a binding over of the offender to the next county court. The offence here spoken of, intends nothing beyond battery, attended with unusual damage. But the aggravation attending the crime now prosecuted, refers to the nature of the offence, and not merely to the accidental consequences. It was a battery ■with intent to maim and kill; and that distinguishes it from a beating, where there was no such intention. Trespass, assault and battery, trespass with an intent to kill, and murder, are each more aggravated than the other; and as they rise on the scale of aggravation, they constitute distinct offences! Murder is nothing but an aggravated trespass. Crimes are defined from their nature and consequences. Now, I cannot doubt, that the murderous intention and barbarous cruelty of the trespass complained of, is a different offence from any ordinary battery. This is in conformity with the law on this subject, universally understood, and sanctioned by numerous decisions.
The last objection made, is, that the offender may be confined in new-gaie for life, and by the constitution can only be prosecuted through the medium of a grand-jury. This objection is founded on the supposition, that at common law, it is competent for the court to inflict fine and imprisonment, without limitation. No precedent has been cited in proof of this principle, except the punishment for a libel published against the Lord Chancellor Bacon ; and the circumstances attending the above decision would take from it the force of authority, if, [116]*116the extravagance of the punishment had not clearly referred it to the temper of the times. Wrennum’s case, Pop. 135.
The common law can never require a fine to the extent of án offender’s goods and chattels, or sentence of imprisonment for life. The punishment is both uncertain, and unnecessary. It is no more difficult to limit the imprisonment of an atrocious offender to an adequate number of years, than to prescribe a limited punishment for minor offences. And when there existsmo firmly established practice, and public necessity or convenience does not imperiously demand the principle contended for, it cannot be the common law, as it wants the main ingredient on which that law is founded. Indefinite punishments are fraught with danger, and ought not to be admitted, unless the written law should authorize them. It is true, that there have been instances of persons sentenced to new-gate for life, where the statutes did not give the authority; but those decisions have not been so numerous, nor do they appear to have been so thoroughly considered and discussed, as to possess the force of precedent.
I would advise the superior court to render judgment upon the verdict against Danforth.
Chapman, Brainard and Bristol, Js. were of the same opinion.
Peters, J.
Upon an information, filed by the state’s attorney, for an assault and battery, with an intent to kill, the defendant has been convicted, and now moves in arrest of judgment ; because,
1. This is an offence by statute, whereof the county court has jurisdiction ; or,
2. It is an offence at common law, whereof no court has jurisdiction; or,
3. It is punishable by imprisonment for life, and by indictment only.
1. By statute, “ whoever shall disturb, or break the peace, by tumultuous and offensive carriages, threatening, traducing, quarrelling, challenging, assaulting, beating or striking any other person, such person or persons, so offending, shall be liable to pay to the party hurt or stricken, just damages ; and also shall pay such fine, as, on consideration of the party smiting, or being smitten, and with what instrument, danger, [117]*117more or less, time, place, and provocation, shall be judged just and reasonable, according to the merit of the offence, as the judges shall determine. And if such offence be aggravated by some notorious and high-handed violences, the offender or offenders shall be bound over to the county court for such of-fence.” (a) -This seems to have been an adoption of so much of the common law, first by our ancestors at Plymouth, (b) and afterwards, by our legislature in 1672, (c) and has been continued in force, without alteration, except the direction relative to binding over to the county court, added in 1750 ; (d) as it contains the common law description of assault and battery, •even with intent to murder, which, not being felony, (e) is punishable by fine, imprisonment, and pillory, and “ not extending to life, limb or banishment,” is cognizable by the county court, (f) Nevertheless, by a new version of the common law, this statute offence has been classed with burglary, robbery, and other atrocious crimes and felonies ; and the discretionary fine of the statute, and the fine, imprisonment and pillory of the common law, by modern adjudications, (g) have been converted into confinement to hard labour, and occasional whipping, in “ shackles and fetters,” in a subterraneous dungeon, (h) limited only by the discretion of the court, and the life of the offender.
2. Have our courts jurisdiction of offences at common law ? Or have they power to define crimes, and prescribe punishments ? This power has^ been exercised time immemorial, in England, by courts originating in the common law ; (i) and had this question arisen under the late government, I should have considered myself bound by repeated adjudications of the superior court, and two at least of this court, (j) though the reasons of those decisions were never satisfactory to me. But I now feel myself at liberty to say, they are not law, and to add, with all due deference, they never were law, though sanctioned by an Ellsworth and a Parsons.
It has been said, by the same high authority, “ that our an[118]*118cestors claimed the common law as their birthright, and brought it with them as amended by English statutes, when they came into this new world, except such parts as were judged inappli-cable to their new condition ; which, with a few subsequent English statutes, adopted by our courts, became our common law, and remain the same as before the revolution.” (k) Others of equal authority, consider “the common law in force in every state, so far as it is applicable to their circumstances, as it existed in England, unaltered by statute, at the time of the first settlement of the country.” (l) I have sought in vain, in the history and legislative acts of our ancestors, for a confirmation of this doctrine. But it is apparent to my understanding, that their sole object was to found a pure government in church and commonwealth, “ surely bottomed on the word of Ged ;” (m) and that they brought with them no more affection for the common law, than the canon law, the court of star-chamber, and high commission, from which they fled with horror and detestation ! (n)
Accordingly, we find, in the first page of their statutes, a solemn provision against all indefinite laws, and discretionary punishments, which “ remained for substance the same,” until the adoption of the constitution. “ No man’s life shall be taken away ; no man’s honour and good name shall be stained ; no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished ; no man shall be deprived of his wife or children ; no man’s goods or estate shall he taken away from him, nor any ways endamaged ; under colour of law, or countenance of authority, unless it be by virtue or equity of some express law, established by the general court, and sufficiently published, or in case of the defect of a law in gny particular case, by some clear and plain rule of the word of God.”(o) Many other of our ancient statutes furnish incontrovertible evidence, that our ancestors did not consider the common law in force here. In their definitions of crimes, they did not adopt one of the common law; and every section of their “capital laws,” except arson and treason against their own commonwealth, is accompanied with a [119]*119list of the texts of scripture on which it is bottomed, (p) In 1652, the legislature of Massachusetts expressly say, they had no law for the punishment of ‘a crime capital at common law, (q) and by statute 3 E&. 1.—“Whereas some dwelling houses, &c. within this jurisdiction have been set on fire r The court, taking into consideration the danger of such wicked practice, and there being no law yet provided for the punishment of so heinous a crime,—do therefore order, and be it enacted &c. That such person or persons be put to death,” &c.(r) “ In civil actions,” says an historian,(s) who was himself a learned judge, “ equity, according to the circumstances of the case, seems to have been their rule of determining :— the judges had recourse to no other authorities than the reason and understanding which God had given them. In punishing offences, they professed to be governed by the judicial law of Moses. In that branch of law, more especially, which is distinguished by the name of crown law, they professed to have no regard to the rules of the common law of England. They intended to follow Moses’ plan, but no further than it was of a moral nature.”
In this state, our courts seem not to have considered the common law in force proprio vigoro, but the judiciary as auxiliary to the legislature, extending the written law, and supplying its defects, (t) “ Thus,” says our learned commentator,(u) “ courts have assumed the discretionary power of punishing as misdemeanours those acts they deem criminal, though warranted by no express law;” or, in the language of this court, “ public shows or exhibitions (and, of course, acts,) which outrage decency, shock humanity, or are contrary to good morals, are punishable at common law.”(v) By statute, (w) effecting or attempting an escape from new-gate, is punishable by imprisonment therein: our courts have extended it to other prisons.(x) By statute,(y) attempting to commit a rape, is subject to the same punishment : our courts have extended it to administering potions, without effect or injury, “ to the intent to provoke unlawful love.”(z) By the civil law, (a) [120]*120assuming a false name or character is punishable with death ; not at all, by statute or common law : our courts doom such offenders to new-gate.(b)
At what period of our juridical history, our courts assumed this prerogative of Huyanla regis, does not appear ; but it does appear, that in 1743, the superior court suspended judgment against a malefactor,(c) convicted of an atrocious mayhem, which was felony by common law,(d) because no punishment was prescribed by statute, and petitioned the legislature for direction ; who thereupon resolved “ that the judges cause such punishment to be inflicted, as to justice appertains, according to their best skill and judgment.”(e) The court adopted the lex talionis, and awarded “ membrum pro mem,-*«.»(f)
It has been said, that the statute giving jurisdiction of “ high crimes and misdemeanours,” is a grant of common law powers ; but it is a maxim in jurisprudence, that “ penal laws are to be construed strictly.”(g) Thus, a statute punishing with death those who stole horses, was holden not to extend to the stealing of one. And another making it “ felony to steal sheep or other cattle,” was construed to extend to sheep only. But the common law may be extended to all acts “ contra bonos mores,” which vary with climate, and the education and habits of men. Thus, in some countries, to kill or enslave an Indian, a Kegro, or a Christian, is an atrocious crime ; in others, a mere bagatelle !
It is said, the exercise of this power is necessary. If so, statutes are unnecessary. If the judiciary is competent to adopt statutes, define crimes, and prescribe punishments, a legislature is useless! Whatever may have been the effect of constitutions in other states upon the common law, many of which have adopted it,(h) it was certainly the object of the projectors(i) of our constitution, to separate, define and limit the constituent powers of government; which, I think, the framers of that instrument have effected. It declares, “ that the powers of government shall he divided into three distinct depart-[121]*121merits, and each of them confided to a separate magistracy :” That the judicial power of the state shall be vested in a su-gíreme court of errors, a superior court, &c. the powers and jurisdiction ofwhich courts shall he defined by law.”(j) Where is the law defining the power we are now called upon to exercise 1 Is it the common law ? But this court and its jurisdiction are created by statute ; and we are informed by the highest judicial authority in the nation,(k) “ that courts which originate in the common law possess a jurisdiction, which must be regulated by the common law, until some statute shall change their established principles ; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.” To this doctrine I subscribe, and wish I could, in the language of Chief Justice .Marshall, declare, that this court disclaims all jurisdiction not given by the constitution and laws of this state.”
In conformity with this principle, the same high tribunal has more than once decided, that the courts of the United States have not jurisdiction of crimes at common law. “ Certain implied powers must necessarily result to our courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt—imprison for contumacy—enforce the observance of order, &c. are powers, which cannot be dispensed with, in a court, because they are necessary to the exercise of all others : and so far, no doubt, our courts possess powers not immediately derived from statute ; but all exercise of criminal jurisdiction, in common law cases, we are of opinion is not within their implied powers.” “ The legislative authority must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence.”(l)
To come nearer home : “ Courts of law,” says an eminent jurist, (m) in discussing this question, unshackled by authorities, “ ought always to be under the guide and restraint of strait rule, and precise definition: they ought never tobe allowed to depart from the well known boundaries of express law, into the wide field of discretion. If they are accus[122]*122tomed to the exercise of such a powffr, in one instance, there is reason to apprehend the extension of it to others; and that the law, instead of being founded on plain and fixed principles, will be as uncertain as the whim and caprice of the court.” “ No man can feel safe and quiet, when he knows that courts have a power over him, the extent of which is so undefined, and the consequence so uncertain, that he cannot know the one, or calculate upon the other. But when it is considered, that this power is unnecessary for the public welfare, it is the more extraordinary, that it has ever been exercised.” I conclude this topic in the words of a greater jurist, (n) “ The discretion of a judge is the law of tyrants ; it is always unknown ; it is different in different men ; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice ; and in the worst, it is every vice, folly, and passion to which human nature is liable !”
3. Is this offence punishable by imprisonment for life ? If so, it must be by indictment: for by the constitution, “ no person shall he holden to answer for any crime, the punishment of which may be death or imprisonment for life, unless on presentment or indictment of a grand jury.” (o) And we have the same evidence that it is punishable by imprisonment for life, as we have, that it is punishable at all—solemn and repeated adjudications.
But it is said, that the common law can never require a sentence of imprisonment for life :—that Wrennum?s case was in the Star-Chamber. Be it remembered, that that court was composed of the oracles of the common law; and that its decisions, before it was perverted to political purposes, are justly holden in the highest estimation ; and they are now cited as authorities in our courts; of which we “ read plentifully” in The Reports, Croke, Popham, Hobart, &c. e. g. Twyne's case.
“ It is the most honourable court,” saith Lord Coke, “(our parliament excepted,) in the Christian world.” 3 Inst. 65. “ Seeing it is an ancient court, the precedents of the court are to be followed ; and the rather, for that the court consisteth of such learned and honourable judges.” 3 Inst. 66. In Rex v Johnson, Comb. 36. it is said, “ the authority of this court was, and is, in the King's Bench," who have often ex-ercised it in the same manner.
[123]*123“ If any man,” says Ld. Coke, “ in Westminster-Hall, or in J 7 J any other place, in the presence of the court, draw a weapon upon a judge, or strike a juror, or any other person, he shall lose his right hand, forfeit his goods and land, and his body to perpetual imprisonment.” 8 Inst. 142. He also informs us, that in the reign of Edward 1., William de Brewse, for reviling a judgment of Roger de Hegham, and other justices, u committitur turn London, ibidem moratur’ ad voluntatem re-gís.” 3 Inst. 142. In the reign of Edward 4. John Davis struck one in the face, with his fist, in the great hall of Westminster, all the king’s courts sitting there, and threatened to hang him, if he should give evidence against a felon then to be arraigned in Banco Regis ; for which act he was indicted ; and for judgment, had perpetual imprisonment during life, forfeited all his lands, &c.(p) In the reign of Charles 1., Sir William Waller, for assaulting and beating Sir Thomas Reignolds, near the great hall, all the justices sitting, was imprisoned during the king"1 spleasure, &c.(q) And for accusing Justice .Hutton of high treason, in presence of the court, Thomas Harrison received the same punishment. (r) In the reign of Charles 2., Thomas Brewster and others were indicted, at the common law, as for a great misdemeanour, for printing and publishing the speeches and prayers of Harrison, Cook, Hugh Peters, and others, condemned for the murder of Charles 1., and were sentenced to the pillory, and to remain in prison during the king's pleasure. (s) “ However,” says Sergeant Hawkins, on a review of the cases on this subject, “ it is certain, that by the common law, which continues to this day, striking in Westminster-Hall, where the king is present only by his judges, is more penal than in another place, in his actual presence ; for the latter is not punished with loss of hand, land, &c., unless some blood be drawn. But if one draw his sword on a judge, in the presence of the court, whether he strike or not; or strike a juror, or any other, with, or without a weapon ; he shall lose his hand, his goods, and the profits of his lands during, life, and suffer perpetual imprisonment.”(t)
These authorities seem to demonstrate, that the common law sometimes requires imprisonment for life, or during the [124]*124king’s pleasure, “ which amount to the same thing,” (u) and to rescue WrennumPs case from the odium of the Star-Chamber, in its latter days.
It is admitted, that persons have been sentenced to new-gate for life, without the authority of statute. But these decisions are said not to have been so numerous, nor so thoroughly considered, as to have the force of precedent.. How numerous these decisions have been, or how often a point must be decided to have the force of precedent, I know not. I hope there are enough to attract the notice of those, who can relieve the wretched victims. Five cases only, decided in less than seventeen years, have come to my knowledge ;(x) and I cannot, I will not, think so irreverently of my venerable and learned predecessors, as to imagine, that they have immured their fellow citizens in a dungeon for life, without due consideration. No, they understood the common law; and it was their wish to stand super antiquas vias, and tread in the footsteps of their English predecessors, where it is my pride and my pleasure to follow them, when unrestrained by a law paramount.
As I am hound to give my own opinion, and my own reasons, I make no apology for dissenting from those whose opinions I so highly respect. If I am- in an error, it will, fortunately, be harmless^ If these remarks deserve any consideration, they may induce my brethren of the bench, and of the-bar, to review a decision, which I cannot but consider as subversive of a government of laws.
Judgment to be entered on the verdict.
Art. 10. s. 3.