After full consideration of the arguments which have been submitted at the bar and in- writing, and much thought and consultation, the impression made upon every member of the court at the hearing is confirmed, and the court is unanimously of opinion that the sentence was not warranted by law.
The Gen. Sts. c. 87, § 7, as amended by the St. of 1865, c. 269, § 1, provide that whoever keeps or maintains a building, place or tenement, resorted to for prostitution, ewdness or illegal gaming, or used for the illegal keeping or illegal sale of intoxicating liquors, shall be punished, on conviction, either by a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment not exceeding one year.
The St. of 1866, c. 280, §§ 1, 3, provides that whoever is convicted of the like offence shall be punished both by a fine of not less than fifty dollars nor more than one hundred dollars, and by imprisonment for not less than three nor more than twelve months, unless he proves or shows to the satisfaction of the court that he has not before been convicted of a similar offence, in which case he may, at the discretion of the court, be sentenced to be punished by imprisonment without fine, or by fine without imprisonment.
*432The statute of 1866 diminishes the fine, but raises the lower limit of the term .of imprisonment; for under the previous statutes a person convicted of this offence might be sentenced to imprisonment for any term less than one year, even to imprisonment for a single day; but under the statute of 1866 he cannot be sentenced to imprisonment for less than three months. And under the previous statutes he could only be sentenced to either fine without imprisonment or imprisonment without fine; but under the statute of 1866 he must be sentenced to. both fine and imprisonment, unless he proves that he has not before been convicted of a similar offence; and even then he cannot under the new statute, if the court in its discretion sees fit to punish him by imprisonment without fine, be sentenced to imprisonment for less than three months, whereas under the previous statutes he might be sentenced to imprisonment for any less time.
When indeed a statute makes the prior conviction of a similar offence a part of the description and character of a second of-fence, by imposing a higher penalty upon a second conviction than upon a first conviction, the fact of the prior conviction must be alleged in the indictment, in order to warrant a sentence as for a second offence. Tuttle v. Commonwealth, 2 Gray 505. And even if, besides imposing a higher penalty upon a second conviction than upon the first, a statute provides that anj person, convicted of two offences upon the same indictment, shall be subject to the same punishment as if he had been successively convicted on two indictments, still the second offence must be alleged in the indictment to be a second offence in order to warrant the increased punishment. Garvey v. Commonwealth, 8 Gray, 382. But the St. of 1866, c. 280, §§ 1, 3, does not make a second offence a different one in description or character from a first offence, but imposes the same degree of punishment for each offence, and merely authorizes the court in its discretion to mitigate the punishment if the defendant shall prove to its satisfaction that he has not before been convicted of a like offence. The difference is this: If the penalties were different on two successive offences, a person convicted of two tike offences on two indictments could not be subjected to an *433increased punishment on the second indictment unless it described a second offence; but under this statute he would be liable to the full punishment upon the second indictment, because it would be impossible for him to show that he had not before been convicted. In the one case, the matter of aggravation must be proved by the Commonwealth; in the other, the reason for mitigation of sentence must be shown by the defendant.
We cannot know upon the record before us whether the prisoner has or has not been previously convicted of a similar offence; and whether he has or has not is immaterial to the determination of the question whether. sections 1 and 3 of the St. of 1866 are so inconsistent with the previous statutes as to repeal them. By these sections, any person convicted of the offence therein mentioned, who does not show that he has not before been convicted of a similar offence, is to be punished by both fine and imprisonment, although the indictment does not allege that he has committed or been convicted of another like offence, and although he may not in fact have committed any other than that for which he is now to be sentenced; so that any person convicted, who does not show that fact, is liable to be sentenced to both fine and imprisonment, instead of either without the other, which would be the limit of his punishment under the previous statutes. And if he does show that fact, he is still liable to be sentenced to imprisonment for any time between one year and three months; but not for a shorter túne than three months, as he might have been under the previous statutes. It needs no argument to prove that imprisonment for not less than three months is an increased penalty as compared with imprisonment which might be for one day; .that the restraint in this respect upon the exercise of the discretion of the court in favor of the defendant is an aggravation of the rule of punishment; and that the St. of 1866, c. 280, §§ 1, 3, is in this particular, at least, inconsistent with the previous statutes.
The general rule is everywhere admitted, that a statute passed by the highest law-making power authorized to legislate upon the subject repeals all previous inconsistent laws. “ And this,” *434to use the words of Blackstone, “ upon a general principle of universal law, that leges posteriores priores contrarias abrogcmt; consonant to' which it was laid down by a law of the twelve tables at Rome, that quad populus postremum jussit, id jus ratum esto.” 1 Bl. Com. 89. A statute enacted by the people, through its representatives to whom the legislative power has been intrusted by the constitution of the state, for the punishment of a certain kind of crime, establishes a rule by which the actions of all persons within the jurisdiction are to be governed, and all violations of the rule punished; and thereby implies that, in the opinion of the sovereign legislature, the law previously existing, so far as it is inconsistent with the new law, does not prescribe a suitable punishment for such a crime, and is not fit to be continued in force; and therefore the later statute, laying down a new rule, in the absence of any qualifying clause, supersedes and abrogates the former law as completely as if that had been repealed in express words.
Former laws indeed are not repealed by implication, except so far as they are inconsistent with a later statute. This inconsistency may arise either from a new enactment which covers the whole subject, or from a statute which simply imposes a new punishment, whether greater or less in degree, for the same kind of crime. Where the punishment only is altered, the extent of the effect of the repeal depends upon the nature of the change. If it only mitigates or alleviates the punishment, an offence committed while the old law was in force may be punished according to the new and milder rule. Dolan v. Thomas, ante, 421, and cases cited. But where the new law authorizes a ■ punishment greater in degree, or so different in kind that it cannot be held to be a mere mitigation of the punishment; as if, for instance, in the case of an offence punishable by either fine or imprisonment, the statute diminishes the extreme limit of imprisonment, and increases the limit of the fine, which may be imposed by the court; the former law is wholly repealed. Commonwealth v. Davis, 11 Gray, 48, and cases cited. And in such case, a person who violated that law while it was in force cannot be punished at all; for he cannot be sentenced under the clo *435rule, because that is repealed; nor under the new rule, because that imposes a punishment to which the offence was not liable at the time of its commission. ,
The most plausible argument in favor of considering the former statutes as still applicable to offences committed and convictions had before the passage of the St. of 1866, c. 280, §§ 1, 3, is that these sections apply only to persons afterwards convicted, and cannot, if they impose an increased penalty, extend to offences committed before their enactment, and therefore, so far as those offences are concerned, are not inconsistent with the previous statutes and do not repeal them. But all criminal statutes are limited in effect, and usually in terms, to future offences. And the argument overlooks the principle upon which a repeal by implication rests, namely, that the establishment of a new rule of punishment is of itself a legislative declaration that the previous rule is not fit to exist, and therefore shall not be applied to any case, unless the legislature, in order to prevent offences already committed from going unpunished, provides that such offences shall continue to be punished according to the previous laws. That, in the absence of any such provision, the old law cannot be resorted to after the new law has taken effect, for the punishment of an offence committed before the passage of the latter, even if the offender has been already convicted by the verdict of a jury, is clearly settled by authority.
The Rev. Sts. c. 47, § 3, imposed a penalty of twenty dollars for each offence on any person who should presume to be a retailer or seller of wine, brandy, rum or other spirituous liquors, in a less quantity than twenty-eight gallons, without being first duly licensed. By St. 1838, c. 157, § 1, no person “ shall sell ” any brandy, rum or other spirituous liquors in a less quantity than fifteen gallons on pain of forfeiting not more than twenty dollars nor less than ten dollars for each offence; and § 4 declared that “ the provisions of all laws now in force, inconsistent with this act, are hereby repealed.” This court, in Commonwealth v. Kimball, 21 Pick. 37-3, held that the earlier statute was inconsistent with the later one, and therefore repealed; and that *436a person who had been convicted by the jury under § 3 of the Rev. Sts. c. 47, could not be sentenced under it after the St. of 1838 took effect; and Chief Justice Shaw, in delivering the opinion, said, “ The result may or may not be conformable to the actual intent of those who passed the latter statute. We can only ascertain the legal intent of the legislature by the language which they have used, applied and expounded conformably to the settled and well known rules of construction.” As the penalty to be imposed under the St. of 1838 could not exceed that prescribed by the Rev. Sts. c. 47, § 3, the decision is to be taken as applied to all the circumstances of the case, in which the new statute did not touch the penalty only, but revised the whole subject. See Commonwealth v. Gardner, 11 Gray, 447. But it is directly in point to show that after a statute, though merely prospective in its terms, which repeals all laws inconsistent with it, has taken effect, a person already found guilty by a jury under those laws cannot be sentenced.
That the result is the same where the repeal is by implication only is shown by the judgment of this court in Britton v. Commonwealth, 1 Cush. 302, reversing a sentence to imprisonment for three months, under the Rev. Sts. c. 126, § 39, for a malicious destruction of personal property alleged to be less than fifteen dollars in value, committed before, but for which sentence was not given until after, the St. of 1846, c. 52, § 1, had provided that “ every person who shall ” maliciously destroy personal property the value of which should not be alleged to exceed fifteen dollars should be punished by imprisonment not more than thirty days, or a fine of not more than fifteen dollars.
The, same principles were affirmed and acted on by the twelve judges of England in Davis’s case, 1 Leach, (4th ed.) 271; by the supreme judicial court of Maine in Heald v. State, 36 Maine, 62; by the court of appeals of New York in Hartung v. People, 22 N. Y. 95 ; S. C. 26 N. Y. 154; and by the supreme court of the United States in Norris v. Crocker, 13 How. 429.
The result is, that the old rule of punishment, laid down in *437the previous statutes, having been superseded and repealed, without any saving of prosecutions pending or offences already committed, did not justify the defendant’s sentence after the repealing statute took effect; the St. of 1866, c. 280, §§ 1, 3, es tablishing a new rule of punishment, in aggravation of the rule in force when his offence was committed, could not constitutionally apply to his case ; and there being therefore no law to authorize him to be punished, he is entitled to be dischargee.
Prisoner discharged.