The sentence was for four years. For good conduct, the prisoner had credits which gave some deduction from the sentence. For bad conduct, he was in solitary confinement one hundred and forty-four days. The punishment in solitary confinement was at various times and for various causes. Among the causes were disturbance, laziness, insolence, noise, breaking rules of workshop, assault upon a fellow convict, disobedience, refusal to work, threats, spoiling work, and laughing and talking. He was not discharged, until he had served his sentence and sixty-eight days imprisonment additional thereto. This detention was in pursuance of section 40, c. 140, R. S., which provides that a convict shall not be discharged from the state prison until he has remained the full term for which he was sentenced, excluding the time he may have been in solitary confinement for violation of the rules and regulations of the prison. Is this section of the statute valid and constitutional? We think not.
By the declaration of rights in our State constitution, the accused, in criminal prosecutions other than cases of martial law and impeachment, has the right of a public trial by jury, and cannot be deprived of his life, liberty, property or privileges, but by the judgment of his peers or the law of the land. By the fourteenth amendment to the national constitution, no state shall deprive any person of life, liberty or property, without due process of law. It is not now worth while to discuss the effect of any verbal differences between the state and national prohibitions, as we feel clear that the clause in the national amendment is directly applicable to the question presented.
No one would for a moment deny the proposition, that a per- • son cannot be taken to the state prison and detained there, as a ■punishment, without an accusation, trial by jury, conviction and *247sentence. Nothing less than these forms would amount to due process of law, where an infamous punishment is to be inflicted. No one would deny that such an act, done by the State, would be in direct defiance of the constitutional amendment. But a man, lawfully imprisoned, is detained in prison beyond the term of his sentence, without any new accusation, trial and sentence as a justification therefor. Is not this detention a new imprisonment ? Is there a difference whether the person is seized within or without the walls of the prison, to be incarcerated? Does not the constitutional inhibition in its terms apply as clearly and literally to this act as to the other? Suppose the statute was not in existence, and never had been passed. Would it be pretended that the warden would he justified in detaining a convict for a single day over his sentence? If he did, would not the act deprive the prisoner of his liberty without any process of law and without any legal excuse or justification whatever ? The State orders it to he done. Does not the State then deprive the prisoner of his liberty without due process of law ? Here, punishments are inflicted upon the prisoner during the term of his sentence; for solitary confinement is deemed a much severer infliction than hard labor. After Ms sentence has expired, he is imprisoned anew for sixty-eight days without a formal accusation, or trial or sentence by any court. It is clear that the imprisonment for more than the four years was not 'warranted by the sentence itself, nor could it he. A man cannot be sentenced for a crime or offence before he has committed any; not for an offence to he committed; not conditionally. The plaintiff was punished, after Ins term of sentence, for having been punished during the term. The detention was not as a punishment bestowed by tiro warden in the exercise of his discretion, but was one imposed by the legislature as a consequence of the warden’s doings. In effect, the plaintiff was punished both during his term of sentence and after it, for the same offence. Ho was doubly punished for a violation of the rules and regulations of the prison. The very statement of the proposition would seem to be its proof. lies ipsa loquitur.
*248It is said that the warden must have the power to inflict punishments upon prisoners for the prison discipline. There can be no doubt of that. It is not to be denied, that the punishment of refractory convicts is a matter within the discretion of the warden, within reasonable limits. Nor is it denied, that the warden. had the right to hold the convict in solitary confinement for the time and upon the charges that he did so hold him, during the term of sentence. We are of the opinion, that the warden had no authority to detain or punish him after his sentence had expired. It would be according to due process of law to do the one thing, and in defiance of it to do the other. It does not follow that because a warden may inflict some punishment, he may inflict any. Due process of law requires that a person shall not bo subjected to an infamous punishment, which would be a confinement in the state prison, without a trial by jury and sentence by court. Here an infamous punishment was put upon the plaintiff without the order of court.
It is said that this convict has no cause to complain, because he was the instrument of his own misfortune, and could have avoided the additional imprisonment complained of by better behavior. Would that not be as true in the case of all criminals? However guilty and however much deserving punishment in the state prison, can any criminal be sent or be detained there without the ordinary proceedings in court ? Is an unlawful imprisonment made lawful because the prisoner deserves imprisonment? It is true, that the prisoner has no cause to complain of the solitary confinement, nor does he. That he could have avoided, and has no remedy if he did not. He complains that, as a consequence of that punishment, he had imposed upon him another and additional punishment of an infamous character without a trial at law.
The common law requires that the punishment of persons convicted of crime shall be definite and certain. Praemunire was an exception, as for that offence a convict could be imprisoned during the pleasure of the king'. The sentence must inform , the convict as to the kind and duration of his imprisonment. This is too clear to need authority or argument. A few cases of interest *249may be cited: Washburn v. Belknap, 3 Conn. 502; Republic v. DeLongchamps, 1 Dallas, 120; Yates v. The People, 6 Johns. 337; Rex v. Hall, 3 Burrows, 1637. But if this statute (sec. 40) is constitutional, then there can be no definite sentences awarded. The will of the warden would in effect control the maximum duration. It is plainly to be seen that, in this way, the warden could extend a punishment indefinitely. If he can prolong a sentence a day, he can a week, ora month, or even for years. And that too for transgressions not of an aggravated character. It should be noticed, that the operation of this statutory provision was to detain the convict in prison sixty-eight days for a long list of transgressions and delinquencies, which (the assaults excepted) could not by possibility be indictable offences. Bor instance, he is imprisoned for five days after his sentence expired for chewing wax and laughing upon an occasion before its expiration. He was in solitary confinement for three days, for a transgression committed after the expiration of his sentence.
What a wild field this idea of such unlimited power over a convict opens into ! How uncertain and varying would be tlie results ! How much would ho made to depend upon the good or bad judgment of a warden! How much upon the whim or caprice, the passions and temper, not only of the warden, but of his agents and servant's and employees ! It is not an answer, that an appeal lies from the warden to the overseers. The convict is in no position to make an appeal. "Bondage is hoarse, and may not speak aloud,” says the great poet. But it is as objectionable (constitutionally) for such power to be reposed in the hands of the board of overseers as in the warden’s hands. A convict cannot be properly imprisoned by either after his sentence has expired. As said before, as far as certain kinds and amomits of punishments are concerned, tlie convict must submit to the exercise of a sort of judicial power in tlie warden and overseers, whether severely or clemently exercised. But when a punishment of an infamous character is to be imposed upon a prison-convict or any one else, the constitutional provision requires that such a deprivation of one’s liberty shall only be authorized by proper proceedings in a *250judicial court. Nothing else in such case can be regarded as due process of law.
It is contended that a warden may have the same control over a convict that a parent has over a minor child, or the teacher over the scholar, or the master over his apprentice; a private class of cases where restraints upon personal freedom are permitted by the law, as an exception to the general rule. (Cool. Const. Lim. * 342). Or perhaps it would be more correct to say, that it is due process of law for a parent to chastise his child, he being within a reasonable and limited extent the judge of the propriety or necessity of the punishment. But how cloes the comparison hold good between the authority exercisable in any of this class of cases, and the authority exercised in the case at bar ? The warden detained the prisoner after the relation of warden and prisoner had legally ceased to exist. Can a father punish his son after the son has become of the age of twenty-one ? Can a master for any purpose whatever control an apprentice after the term of apprenticeship has terminated ? Can a teacher punish a scholar in any form after the term of school has finally closed ? Can a father inflict an infamous punishment upon his minor son ? On the contrary, for any abuse of his legal right of control, he will himself be liable even to criminal prosecution.
It does not militate against our proposition in this case, to admit that there are other instances where persons may suffer imprisonment where there has been no trial by jury. A man may be arrested upon mesne or criminal process and lodged in jail. That is for custody and not for punishment. So a person may be imprisoned for contempt of court without a trial by jury. But this is all by due process of law. The law of the land has ever permitted it. And there are other instances. But it does not follow at all from these or any other instances or illustrations, that the constitutional provision should not apply to the case at bar.
It is argued that the sentence was four years imprisonment at hard labor, and that the sentence had not expired at the end of the four years, because the labor had not been performed, the convict doing no work when in solitary confinement. But the *251imprisonment is the primary purpose of the sentence. It is such hard labor as during the sentence can be obtained. But this literal construction does not aid the defendant’s argument, for while there are to be four years of hard labor, there are to be but four years of imprisonment.
It is urged upon our attention that this statute is of ancient origin, existing in 1824. But the judicial opinion and the public sense were not so much awakened to the importance of the principle underlying this matter then as now. The fourteenth amendment, which is perhaps more definite and pronounced than the personal liberty clauses in the bill of rights in our State constitution, has been added since. Decisions, sustaining the constitutionality of certain statute's allowing summary proceedings, have been overruled since. See Portland v. Bangor, 65 Maine, 120, a case in its whole course of reasoning particularly applicable.
Dolan’s Case, 101 Mass. 219, is relied on by the defendant. That case denies that a sentence is to be abridged by the absence of a prisoner who escaped and was retaken during his term of sentence. During his absence he was suffering no imprisonment. Here, while the convict was not at hard labor, he was suffering a severer punishment. That case differs much from this. State v. Gurney, 37 Maine, 156, and Lord v. State, Idem. 177, are much more like the case at bar. In those cases it was decided that the legislature could not provide that a greater penalty should be applied in an appellate court, in case of an appeal, than in the court below. See Jones v. Robbins, 8 Gray, 329.
In Commonwealth v. Halloway, 42 Pa. St. 446, it was held that a law like our own was unconstitutional " as interfering with the judgments of the judiciary.” There, as here, the sentence was pronounced after the law was passed. The question presented was whether the act was binding to lessen a sentence for good conduct. The court says that "the discretion as to the length of a sentence is vested only in the judiciary,” and adds: "Any interference with that sentence, except by a court of a superior jurisdiction, or by the executive power of pardon, would seem to be a prostration of that distribution of governmental functions which the constitution makes among three co-ordinate depart*252ments. In this view the act would be highly unconstitutional.” We need not say as much in the discussion of the question presented to us. What we do say is, that under a sentence of four years a prisoner cannot be held longer than four years; that all punishments must' be inflicted upon a convict during his term, and neither directly nor indirectly afterwards. Although the process authorized by the statute and prison rules for prison discipline, may be ever so just and humane, yet so far as punishment was imposed after (not during) sentence, it was not the process, not the due process of law demanded by the constitution.
A point is raised for the defence, that the warden should be protected, because the statute had not been declared unconstitutional when he acted under it. We do not comprehend the logic of a statute having effect as if constitutional, when not so; to be a law for one purpose and not another; a law for one man and not another. It must be either valid or invalid from the beginning, or from the date of the constitutional provision affecting it. Judge Cooley says, (Const. Lim. *188), "when a statute is adjudged to be unconstitutional, it is as if it had never existed.” Such is much the better opinion upon the authorities, and such has been the view of the question in the practice in this State. An unconstitutional law is not a law. It is null and void. The warden is only liable to the perils that more or less follow official stations. He had no warrant of court that could protect him. He is liable for the actual, not punitive, damages for the injury suffered.
Walton, YirgiN and Libbey, JJ., concurred. Danforti-i, J., being a relative of the defendant, did not sit.