74 Mass. 329 | Mass. | 1857
Lead Opinion
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
See Commonwealth v. Brown, 21 Law Reporter, 23 ; Commonwealth v. Mehegan, 21 Law Reporter, 33.
Concurrence Opinion
Concurring, for the most part, in the opinion expressed by the majority of the court, and in the result to which it leads, I have been brought to the same conclusion by a somewhat different, and, to myself, more satisfactory course of reasoning. This I have felt it my duty briefly to state, the more especially as I am obliged respectfully, but firmly, to dissent from some of the constitutional views to which the opinion just read has given the sanction of the court.
The construction of the statute seems to me very plain. By the terms “ all larcenies ” are embraced aggravated as well as simple. The limitation in the statute is only in the amount charged to be stolen.
It seems to me equally clear, however difficult it may sometimes be to draw the line between punishments that are infamous and those not infamous, that punishment in the state
But there is, to myself, plainer and more solid ground upon vzhich the conclusion rests, that a police court or a justice of the peace cannot be clothed with jurisdiction to try the citizen for an offence which will subject him to a capital or infamous punishment.
It is obvious to remark that, if the intervention of a grand jury is all that is wanting to the validity of-this jurisdiction, the legislature might at once provide for the return of indictments into the police court, and, reserving to the accused the right of appeal, might subject him to trial evén for his life, before a single magistrate. I find it impossible to assent to any such conclusion, or to any reasoning that would lead to it.
It seems to me plain that, when the Constitution declares that “ 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,” its meaning is trial by jury when and wheresoever he shall be tried ; not upon his second trial, nor after having been subjected to another and different mode of trial. If, for an offence subjecting him to capital or infamous punishment, the citizen may be tried once without a jury, it is not easy to see why he may not be so tried a second time; why the legislature may not provide that, upon appeal to the municipal court, he may be tried by a single judge, and postpone his trial by jury to his appeal to this court. Such a law would, indeed, clog and obstruct his trial by jury; but the difference between that and this is in degree only.
The subjecting the accused to one trial by a single magistrate
When you state the proposition that a man may be constitutionally tried for murder by a justice of the peace or a police court, or by any single judge, even after indictment, and that he cannot have a trial by jury until he has been tried by a single magistrate, I think every mind familiar with the Constitution, and with the common law rights secured by it, shrinks from the conclusion; yet it is to be observed, that the twelfth article of the Bill of Rights makes no distinction between laws subjecting the citizen to capital and those subjecting him to infamous punishments. They stand on the same ground.
I am aware that in some text-writers of authority, and in the dicta of judges for whom I feel the highest respect, it has been said, that if there is an unobstructed and unclogged right of appeal to a court in which a trial by jury can be obtained, the article of the Bill of Rights is satisfied. To this view I answer,
1st. That it has never been decided in this commonwealth, that the right of trial by jury, secured by the twelfth article of the Bill of Rights for offences subjecting the citizen to capital or infamous punishment, is satisfied by a right of appeal to a court sitting with a jury; but that, on the other hand, the practical construction of this article, by all departments of the government, has been, that in relation to the higher grades of offences (in which aggravated larcenies would be included) the subject must be indicted before he can be tried, and, when indicted, can be tried only by his peers.
2dly. That it is not an unobstructed and unclogged right of
In the facts that, in relation to minor offences, a different usage has obtained, both before and since the adoption of the Constitution; that when the jurisdiction of the magistrate has been extended, the grade of the offence has been reduced and the punishment diminished; that since the adoption of the punishment in the state prison no magistrate has been charged with original jurisdiction of an offence which would subject the accused to this mode of punishment, till this statute was passed — a period of forty three years — I find the strongest evidence of what has been the practical understanding of legislators and magistrates. But I feel it my duty to say that, if exceptions to this practice had been found, yet, in a matter so vitally affecting the rights of the citizen, and the mode of trial by the preservation of which in its integrity those rights can alone be secure, I should still have adhered to what seems to me the plain and obvious meaning of the Constitution itself.
With this construction of the last clause in the twelfth article of the Bill of Rights, I am of opinion that the statute giving the police court jurisdiction of aggravated larceny, with power to punish the prisoner by confinement in the state prison, is invalid, for two reasons : first, because it subjects the citizen to trial for an offence visited with infamous punishment, without presentment by a grand jury; and second, because it gives to a single magistrate power to try for an offence which can only be constitutionally tried by a jury.
Merrick, J. Upon the principal question in the present case, I am unable to concur in the opinion expressed by a majority, and indeed by all, the other members of the court. As the effect of that opinion is a denial of the constitutional right of a coordinate branch of the government to exercise a power which, after mature reflection, I cannot doubt that it possesses, I deem it to be my duty, profoundly as I respect the .judgment of my associates, and distrustful as I ought to be of my own, to state the grounds of my dissent, and the reasons by which I am led to a conclusion different from and opposite to theirs.
From examination of the record it appears that a complaint, in due form and duly sworn to, was made to the police court of the city of Boston against the petitioner, wherein he was charged with stealing in a shop, there situate, certain property, of the value of fifteen dollars; that he was brought before that court, and there was arraigned, tried and found guilty of the charge set forth in the complaint; that he claimed no appeal from the judgment rendered against him, and that thereupon, in pursuance of that judgment and conviction, he was sentenced to be punished for the offence whereof he stood convicted, by imprisonment in the house of correction for the term of six months.
By the St. of 1855, c. 448, § 1, it is provided, that “ the several police courts of this commonwealth shall have concurrent jurisdiction with the municipal court of the city of Boston and the court of common pleas, of all larcenies whereof the money or 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 municipal court are authorized to inflict by existing laws.” There is no doubt but that the last named courts have jurisdiction of offences of the like kind as that charged against the petitioner; and are authorized to sentence persons convicted thereof to the punishment of imprisonment for a term not exceeding three years in the house of correction, or for a term not exceeding five years in the state prison. Rev. Sts. c. 126, § 14; c. 143, § 19.
But it is objected that this statute is inoperative and void, because it confers power upon police courts to sentence persons -eonvicted of certain aggravated larcenies to the punishment of imprisonment in the state prison. It is contended that, by reason of the restrictions upon the general authority with which A is invested by the Constitution, it is incompetent for the legislature to make any law under or by force of which an alleged offender may be arrested, held to answer, tried, convicted and sentenced for the commission of a crime, the punishment of which may be by imprisonment in the state prison, without an indictment, or a presentment therefor by a grand jury, previously found and returned against him.
This objection to the validity of the St. of 1855, c. 448, is sustained by a majority of the members of this court, in whose judgment the proposition upon which it is founded is a legitimate and necessary inference from the provisions of the Constitution. I am unable to come to any such conclusion. On the contrary, it appears to me that the constitutional power of the legislature is not subject to any such restriction; but that it
Of course I shall be understood as speaking only of the power and capacity of the legislature in the enactment of general laws; and not as expressing any opinion in relation to the expediency of continuing or abolishing the institution of a grand inquest. That is a topic which belongs to the deliberations of the legislature, and not to the judicial department of the government.
To determine the extent and reach of the authority of the legislature in the enactment of new laws and statutes, it is of course necessary to resort directly to the constitution itself, from which all its power is derived. We there find that full power and authority is expressly given to the general court, from time to time, as the members of whom it shall be composed shall judge to be for the good and welfare of the Commonwealth, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, either with penalties or without, so only that they be not repugnant or contrary to the constitution itself. Const, c. 1, § 1, art. 4. And the general court is also, in like manner, further invested with similar power and authority to erect and constitute judicatories and courts of record and other courts, to be held for the hearing, trying and determining of all manner of crimes and offences, and of all pleas, processes, actions and causes, whether criminal or civil, and for making out and awarding execution thereon, art 3.
It is contended that the phrase “ or by the law of the land ” means, when duly - interpreted, “by indictment or presentment of a grand jury.” If this is the legal signification of those words, then certainly the legislature is prohibited from enacting a law like that under which the petitioner is held in custody in execution of his sentence; or, as it seems to me, any other law by force of which, without the preliminary action of the grand inquest, any subject may, for any crime or offence, be arrested, or imprisoned, or deprived of his life, liberty or estate. But if these words are not so to be interpreted, there is no restriction upon the power of the legislature to enact new laws respecting the way and manner in which criminal suits and prosecutions shall be instituted ; and that department, under the general authority with which it is invested, is left perfectly free to introduce such changes, and make such new provisions on the subject as shall, from time to time, be deemed to be for the good and welfare of the Commonwealth.
It is not suggested that the words “ or by the law of the land,” when considered in the sense in which they are commonly and ordinarily used, import “ by indictment or presentment of a grand jury ” ; but that, in consequence of their known usage as
Some legal authorities are referred to, as tending tó show that, under a just legal interpretation, this is the meaning of that phrase, as we find it in the twelfth article of our Bill of Rights. The same words are contained in c. 29 of Magna Charta, from which the declaration in our bill of rights is derived. In his commentaries upon that chapter, after quoting the words “ nisi per legem terree,” “ but by the law of the land,” Lord Coke says: “ For the true sense and exposition of these words, see the statute of 37 Edw. 3, c. 8, where the words, ‘ by the law of the land’ are rendered,6 without due process of law ’; for there it is said, ‘ though it be contained in the great charter, that no man be taken, imprisoned or put out of his freehold, without process of the law ’; that is, by indictment or presentment of good and lawful men, where such acts be done in due manner, or by writ original of the common law.” 2 Inst. 50.
This passage, I think, does not show that Lord Coke meant to affirm that the words, “by the law of the land,” signify merely “ by indictment or presentment of good and lawful men.” He rather refers to one of the then well known modes of prosecution as an instance of the manner in which proceedings might be had “ by due process of law ”; to which he immediately adds, as a further illustration of what may be done by due process, “ or by writ original of the common law.” In his further
The commentary of Chancellor Kent, when fully considered, does not seem to admit of the supposition that he assigns to the phrase “by the law of the land” the circumscribed and narrow signification, to which it is limited when held to be only a designation of one particular method in and by which a person may be legally accused of, and prosecuted for, a criminal offence. He says, indeed, that these words, “ as used originally in Magna Charta, are understood to mean ‘ due process of law,’ that is, by indictment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of those words.” But to prevent the reader from misapprehending it to be his intention to
There are many cases in which this definition of Chancellor Kent is directly or incidentally sanctioned; but there are none, which I have been able to find, in which the phrases “ by the law of the land ” and “ presentment by a grand jury ” have been adjudged to be equivalent or synonymous terms. Thus in Taylor v. Porter, 4 Hill, 140, it was held, that a statute authorizing a private road to be laid out across the land of a person, without his consent, was unconstitutional and void, because even the right of eminent domain cannot be exercised except under a general law, interpreted and administered in the due course of proceeding in courts of justice. The words “ due process of law,” said Mr. Justice Bronson, “ cannot mean less than a prosecution or suit, instituted and conducted according to the prescribed forms and solemnities, for ascertaining guilt, or determining the title to property. It will be seen that the same measure of protection is extended to life, liberty and property; and if the latter can be taken away without a forensic trial and judgment, there is no security for the others.” It is the forensic trial, under a broad and general law, operating equally upon every member of our community, which the words “ by the law of the land,” in Magna Charta, and in every subsequent declaration of rights which has borrowed its phraseology, make essential to the safety of the citizen, securing thereby both his liberty and property, by preventing the unlawful arrest of his person or any unlawful interference with his estate. Jones v. Perry, 10 Yerg. 59. Wally v. Kennedy, 2 Yerg. 554. In re John & Cherry Streets, 19 Wend. 676. Hoke v. Henderson, 4 Dev. 15.
There is evidence in the legislative action of the Province, that, long before the adoption of the Constitution, the people dwelling here were not disposed to rest wholly upon Magna Charta, or on the great body of English liberties. The) made
When the Constitution of this commonwealth was written, the words 11 per legem terree” from Magna Charta were selected and inserted in the twelfth article of the Bill of Rights, instead of transferring to it the peculiar phraseology of our provincial declaration. The signification of each form of expression, however, was the same. This is apparent from several considerations. A few years later, the Constitution of the United States, framed in a convention of delegates from the several independent sovereignties then existing, was submitted to the people of Massachusetts for their adoption. It is well known to have been in the convention, to whose deliberations its acceptance or rejection was referred, one serious ground of objection to its adoption, that it contained no provision' for the security of the citizen against the danger of public criminal prosecutions. To obviate that objection an amendment was proposed, which was subse
Considering the time, the place and the circumstances under which this opinion was expressed, and that not one of the able and vigilant members of the convention in which it was clearly and distinctly asserted then intimated the least doubt of its correctness, it deserves to be considered as a deliberate judgment, and is entitled to the weight of an authoritative contemporaneous exposition of the sense and meaning of this particular article in the Bill of Rights and of the general provisions of the Constitution. It was undoubtedly so considered at that time ; and it appears to have been ever since tacitly acquiesced in and conceded. It has not hitherto been denied or brought into question in any controversy which has arisen, or by any adjudication in our courts of law. On the contrary, so far as our judicial decisions have gone, upon questions involving this inquiry, they tend rather to strengthen, support and confirm it. It was thus in the judgment upon an information filed by the solicitor general against the inhabitants of Waterborough, for neglecting to be provided with a public protestant teacher of piety, religion and morality. In giving the opinion of the court in that case, Parsons, C. J. says : “ It is a general rule that all public misdemeanors, which may' be prosecuted by indictment, may be prosecuted by information in behalf of the Commonwealth, unless the prosecution be restrained by statute to indictment.” Commonwealth v. Waterborough, 5 Mass. 259. And in a later case this opinion was incidentally affirmed. Judgment appears to have been actually entered upon a verdict rendered upon an information filed and prosecuted in the county of Suffolk by the attorney for the Commonwealth; and sentence awarded thereon for the penalty prescribed by statute as the punishment of an act prohibited and made criminal. Various other exceptions were taken and argued in behalf of the defendant; but neither his counsel nor any one else seems to have entertained a doubt of the right of the government to maintain the prosecution, because it was not founded upon the presentment of a grand jury. Commonwealth v. Hooper, 5 Pick. 42.
Evidence to the same effect is also afforded in various acts of legislation under the Constitution, and in the practical construction thus given to its provisions. Soon after, but nearly contemporaneously with its adoption, courts of general sessions of the peace were established, and empowered to hear and determine all matters relative to the conservation of the peace, and the punishment of the offences of which they were authorized to take cognizance. The jurisdiction of those courts was very broad; extending, as it has since been judicially ascertained and determined, to everything which, in the then existing state of the law, did not relate to life, member or banishment. Commonwealth v. Holmes, 17 Mass. 336. Yet in the statute by which they were created, express provision was made concerning the issuing of warrants and processes “ for the apprehending and bringing to trial any person against whom an indictment is found or a complaint filed, for any crime ” whereof the
Similar illustrations might be educed, if it were necessary to pursue the inquiry, from the various statutes in which judicial power and authority in criminal cases is conferred upon inferior
In another and more striking form the legislature has very deliberately indicated an opinion as to its right to determine, at its discretion, in what class of offences the presentment of á grand jury shall be indispensable to the institution of a criminal prosecution, and how far, and upon what occasions, the old common law process of information shall be allowed in its place. Upon the revision of the statutes in 1836, the commissioners—■ stating in a manner which makes it apparent that they did not suppose that their proposition could be exposed to any doubt or disputation, that “ our constitution does not mention an indictment ” —proposed that a law should be enacted, that no person should be held to answer for any crime or offence punishable by the infliction of death, or by imprisonment in the state prison, unless upon indictment by a grand jury. Commissioners’ Report, c. 123, notes. The committee of amendments, to whom this recommendation was first referred, followed out the principle of the suggestion; but, varying the form and substance of the proposed law, so as at once both to uphold, and to show what was understood to be the extent of the constitutional right of the legislature, reported the section of the statute, which was finally enacted, declaring therein that no person should be held to answer, in any court, for an alleged crime or offence, unless upon an indictment by a grand jury; except where a prosecution by information should be expressly authorized by statute, and in proceedings' before police courts, justices of the peace and courts martial. Committee’s Amendments, 149. Rev. Sts. c. 123, § 1.
It was in the exercise of that power, then so plainly and significantly claimed and asserted by the legislature as its undoubted right, that the statute now under consideration, by force of which the petitioner is held in custody, was enacted. Under the general authority conferred upon it, by the broadest terms, by the Constitution, it was certainly competent for the legislature to ordain and establish such a law, unless by some provision in another part of the same instrument, that authority is specially, or by necessary implication, so curtailed and limited as to forbid or disallow it. And confessedly no such restraint exists, if the phrase, “ by the law of the land,” in the 12th article of the Bill of Rights — the only clause referred to or supposed to import such limitation — is not to be interpreted, at least in relation to all offences to which an infamous punishment, such for example as imprisonment in the state prison, is attached, as a prohibition against the enactment of any law, by force of which the life, liberty or property of a citizen may" be jeoparded through the prosecution of any criminal accusation against him, other than such as shall be founded upon the presentment and action of a grand jury. I can see no sufficient reason for adopting such an interpretation. On the contrary, in view of the considerations already presented, whether the phrase is considered in reference to the usual and ordinary signification of the words of which it consists, or to any legal or technical
But a further and definite objection is urged against the validity of this statute. In conferring upon police courts jurisdiction of all larcenies, where the alleged value of the stolen property does not exceed fifty dollars, it gives them also power to sentence convicts, for certain of the offences embraced in it, to imprisonment in the state prison. And it is insisted that, this being an infamous punishment, the legislature is not authorized to empower those inferior tribunals to subject persons under judgments rendered by them to punishments of such a description. It is impossible, I think, upon a just and reasonable construction of any part or provision of the Constitution, to maintain that objection. If, disregarding the great and fundamental question of constitutional authority and right, we were at liberty to advert to other considerations, it might perhaps be thought to have been inexpedient and injudicious to clothe the judicial officers appointed to "administer justice in those courts, with powers of such magnitude and importance. And it is possible that, in the enactment of the particular statute under consideration, the most careful and deliberate attention was not directed to the measure and extent of the punishment which may be inflicted by virtue of its provisions. But if it were allowable to enter into speculations of this kind, nothing could be found in them sufficient to invalidate a law otherwisé duly enacted. The legislature alone has the right, and it is moreover its especial duty, to decide definitively upon this and all kindred questions of expediency in establishing laws and ordinances for the common welfare. The material inquiry here however has no relation to the utility or expediency of particular acts of legislation, but is limited and confined to the question concerning the constitutional power and right of the legislature in the enactment of laws declaring in what manner criminal accusations shall be
For these reasons I am of opinion that the St. of 1855, c. 448, is a valid and constitutional enactment; and consequently that the petitioner is not entitled to be discharged from his imprisonment.
Note. By St. 1857, e. 157, the St. of 1855, c. 448, is repealed; and concur rent jurisdiction is given to police courts to punish larcenies of money or property, not alleged to exceed fifty dollars in value, by imprisonment in the county jail or house of correction not exceeding two years, or by fine not exceeding ona hundred dollars.