delivered the following dissenting opinion:
Under an instruction by the court, in substance, that if they believed the defendant willfully and maliciously, with intent to beat, wound or kill Richard Reid, made an assault upon him with a' cane, stick *610or cowhide, by striking, beating or wounding him, they must find him guilty of an assault and battery, and fix his punishment by fine in any sum, or by imprisonment in the county jail for any period of time, one or both, in their discretion. The jury in this case returned a verdict of guilty, and fixed the punishment at a fine of one cent and imprisonment in the county jail for three years.
I can not concur in, but dissent from, the opinion of the majority of the court sitting in this case.
The offense for which the defendant was indicted and tried is assault and battery, always deemed and treated at the common law as a misdemeanor, and never intended by the Legislature to be punished otherwise. But, under the instruction of the court, the jury was authorized, at their discretion, to punish the defendant by fine to the amount of his entire-estate then owned or that he might ever acquire, and by imprisonment for an indefinite period, as well twenty-one as three years. And the punishment actually imposed by the verdict of the jury is, as compared with the following offenses made felonies, greater than the-minimum punishment provided by statute for larceny, robbery or burglary, and greater than can be imposed in any case, whatever may be the circumstances, for maliciously assaulting, with a felonious intent to commit robbery upon a person; it is greater than that for unlawfully taking, without her consent, an unmarried girl under the age of fourteen years out of the possession of her parents without their consent; as great as the maximum punishment for detaining a child under ten years of age, with intent to deprive the parent of,, *611or steal any article of -value from, tlie person of such child; and greater than the minimum punishment for unlawfully detaining a woman against her will with intent to marry, or have her married to another, or with intent to have, or that another may have, carnal knowledge with her; it is greater than the minimum punishment for maiming the person, or maliciously shooting and wounding, or maliciously cutting or stabbing with a knife, sword or other deadly weapon with intent to kill, or for the -despicable offense of maliciously administering poison to, or attempting to poison another, where death does not ensue.
If that instruction be the law, a person may for the offense of assault and battery, be lawfully imprisoned for a period of time terminated only by his death.
It seems to me, when a judgment comes before us thus obliterating the line dividing felonies from misdemeanors, and doing such violence to the reason and analogy of the law, it is time to look to the Constitution under which we live.
In section 2, article 18, of the Constitution it is declared, “that absolute arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”.
The power to punish under semblance of authority, by fine and imprisonment, at discretion, without any fixed rule of law to limit the amount or duration, whether exercised by one or more than one, is arbitrary power in the meaning of the Constitution. It does not make any difference whether the punishment be confinement in the penitentiary or in the county jail; for to confine a person in either is to deprive him *612■of his liberty, which can not be done in any case arbitrarily. Nor does the fact that such power is lodged with juries, and its exercise made subject to revision by courts, alike freed from legal control or restraint, ■afford the certain and complete guaranty against oppression and wrong intended by the Constitution. For ■common experience teaches that a jury may sometimes ■drift with a strong current of unreasoning popular prejudice, and a timid judge may listen to clamor or bend to pressure. There can be no security for life, liberty •and property without laws conservative of' the funda.mental principles of our government. The safety of ¡society and of each member of it requires, and from the beginning the uniform policy of the Legislature has been, in accord with the Constitution and sentiments of the people, to provide by law that punishment for public offenses be inflicted only within prescribed maximum and minimum limits. And if the offense of assault and battery may now be punished by a different rule, it is an exception, and the fact that there is no reason whatever for such anomaly should, according to a safe rule of construction, be regarded as conclusive it was not intended to exist.
Appellant’s counsel contend, that at common law, which it is argued governs in this case, the offense of assault and battery is punished by fine only. And to sustain the position, cite the case of Commonwealth v. Simmons, 6 J. J. Mar., 614, decided in 1831, Judge Robertson delivering the opinion. At the time that case was decided, the Court of Appeals had no jurisdiction of a penal offense for which there was any greater punishment than a fine. It was, therefore, *613deemed by the court necessary to determine whether assault and battery, for which Simmons had been indicted, was punishable at common law by both fine and imprisonment, or by fine only. And the question being thus directly before the court, it was held that the offense could not be punished by imprisonment at all, and consequently the court took jurisdiction of the appeal in that case.
By the other side we have been referred to the case of Usher v. Commonwealth, 2 Duvall, 394, decided in 1866, Judge Marshall delivering the opinion. In that case Usher was indicted for the statutory offense of shooting at another with intent to kill or wound such person, denounced by section 1, article 17, chapter 28, Revised Statutes, and likewise in the General Statutes, the punishment for which was a fine not exceeding jive hundred dollars, or imprisonment not less than six nor more than twelve months, or both, in the discretion of the jury. But the evidence on the trial did not show there was an actual shooting, but only that in the course of a violent assault and battery committed by Usher upon one Morris, or immediately upon its suspension, he got a pistol and aiming it at Morris, who was retreating from him, snapped it as many as three times. The circuit court instructed the jury in that case, that if they found the defendant guilty of unlawfully attempting to shoot at another, to fix his punishment at imprisonment not exceeding twelve months, or fine not exceeding jive hundred dollars. And this court, in passing on that instruction, said : “We think, in prescribing the limit for the punishment in this case, the court paid no more than due respect to the *614statute.” It is true it was said in the same opinion that the offense of attempting to shoot another without actually shooting, is not described nor punished by statute, but was an offense at the common law, and punished at the discretion of the jury.
No notice was taken by either court in that case of the violent assault and battery committed on the same occasion. But both inadvertently fell into an error in assuming that attempting to shoot at another was at the commón law technically a generic offense. The offense of which Usher was proved guilty, and in relation to which the instruction was given, was an assault committed by presenting and snapping his pistol at-Morris within carrying distance, and of a lower degree than the one for which he was indicted, and being an assault, it was punished at the common law by imprisonment, or it was not so punished.
In the Simmons case, the question was directly and necessarily before the court and expressly decided. In the Usher case, the question of imprisonment was not before the court, nor necessary to be decided, for the verdict of the jury was for a fine only. Moreover, the opinion in the Simmons case is consistent, while that in the Usher case is not. For the kind and degree of punishment for assault and battery must, from necessity, be and is regulated exclusively by common law rules, or exclusively by statute, otherwise the attempt to inflict it in the manner and to the extent provided by one, would violate the other, unless they were identical, in which case- the common law would be obsolete. If, then, the common law governs, and the punishment may be imposed at the discretion of the jury it is so in *615virtue of a statute putting the common law in forced which respect for another statute will not authorize the ■court to disregard. It was, however, the only way to ■escape the absurd result of holding that the common law governs at all as to the punishment fór assault and battery, whereby the greater punishment may be inflicted for the lesser offense.
I am aware that there are other cases decided since 1831, hereafter noticed, in which judgment for fines •exceeding the statutory limit have been affirmed, but there has been no one directly involving the question of imprisonment for assault and battery.
There appears to be some disagreement amongst text writers as to the ancient mode of punishing for assault and battery, and authorities are cited by counsel for the Commonwealth, and also in the opinion of the majority, for the purpose of showing that the offense is punishable at common law by both fine and imprisonment, and that the decisipn of this court in the Simmons case should not now be adhered to. But whether the weight of authority as to the common law be one way or the other, and whether the accused in this case should not have the benefit of whatever ■doubt there may be, I deem immaterial; for, in my opinion, the punishment is regulated wholly by the statutes of this State.
It is, however, proper to stop and seriously consider whether, assuming, as the majority does, that the punishment is determined by the common law, we should now, in order to affirm a judgment of unexampled severity, overrule and disregard the only judicial exposition of what the common law on the subject is *616ever made by this court in any case, where the question of imprisonment was necessarily and directly involved and decided. Former decisions of this court, by which rules regulating property rights have been determined a>nd settled, are, even when deemed erroneous, seldom if ever disturbed. It seems to me there is at least as good reason why a court of last resort, having once decided that a person could not, according to a particular law, be imprisoned, should not after-wards change its ruling without a change of the law.
In pursuance of the obvious policy of every State to-provide by statute the mode and degree of punishment, for each public offense committed within its own limits, the Legislature commenced, immediately after the organization of the State government, to provide a penal code adapted to the condition and necessities of the-Commonwealth, and now there is scarcely an offense punishable at all that is not punished according to the-statutes of the State. Is it to be presumed the Legislature has from the beginning purposely omitted the offense of assault and battery, of perhaps more frequent occurrence than any other, and left it to be regulated by the cominon lav/, the meaning of which is the principal subject of dispute even in this case ?
By an act approved December 21, 1802, it was provided that if any riot, rout, unlawful assembly of the people, or breach of the peace be made or committed, the offender should be arrested, and on failure to give bail for his appearance before a justice of the peace for trial he should be put in jail, and if found guilty by a jury, the justice should proceed to punish him by fine, not exceeding twenty-five dollars. It was further pro*617vided, tliat on default of the officers to proceed against the offender in the time and manner prescribed in the act, “said offenses shall be punished as heretofore.” An act of December 20, same session, is as follows: “Whereas, a mode of proceeding and punishing offenses has been provided by an act of assembly, differing- in some cases from that which had before been provided by the common law, .or by English statutes, it is enacted that in such cases the provisions of the common law or of the English statutes shall be, and are hereby, repealed.” And by a third act of December 22, same session, it was provided, that “all laws and statutes which provide for the punishment of offenses for which other punishments are provided by act of assembly, are repealed.” But in 1809 an act was passed, providing “that the common law in relation to riots, routs, unlawful assemblies of the people, assaults, batteries, affrays and breaches of the peace shall be, and the same is hereby, revived and declared to be in full force, and that any person or persons guilty of any of the aforesaid offenses may be indicted and punished at common law as heretofore, any law to the contrary notwithstanding, provided that this act shall not be so construed as to subject any person or persons to be twice punished for the same offense.”
Section 3, article 1, chapter 29, General Statutes, is as follows: “A common law offense for which punishment is prescribed by statute, shall be punished only in the mode prescribed."
The title of article 19, chapter 29, is “riots, routs and breaches of the peace,” and the first three sections contain substantially the same provisions for the sum*618mary arrest of offenders as provided in the act of December 21, 1802, and the same as were in the Revised Statutes. Section 4 relates to the-trial of persons arrested, and provides that if the jury believe the defendants, or any one or more of them, guilty, they shall be severally fined in a sum not exceeding one hundred dollars, or imprisoned not exceeding fifty days, or both so fined and imprisoned at the discretion of the jury.” Section 6 of the same article is as follows: “Nothing in this article shall be construed to repeal the common law in relation to riots, routs, affrays, unlawful assemblies or breaches of the peace; which offenses may be punished as, and by the common law, as heretofore.”
The General Statutes differs from the Revised Statutes ouly in regard to the extent of punishment, which in the latter is limited to thirty dollars and fifteen days’ imprisonment, and differs from the act of December 21, 1802, as to the extent of punishment, and in giving to the jury instead of the justice of the peace the discretion to fix it. But the policy of limiting the punishment has been uniform and consistent throughout.
The principal question, then, is, whether assault and battery were intended by the Legislature to be included by the term “breach of the peace.”
Assault and battery, one being,an unlawful attempt or offer with force to do a corporal injury, and the other the actual use of such force, constitute, singly and combined, in law and in fact, a breach of the peace. An assault has always been held by this court a breach of the peace. And if it be more, it is so in the sense of being a personal injury for which a civil action may be *619maintained, or being accompanied with an intent to do some act which is of a higher grade of offense than a breach of the peace. There, is no distinct offense known as an aggravated assault. In England assaults .are called aggravated, because committed in certain places, or against privileged classes, for which specific jiunishments were provided that have no place here. There are assaults with intent to kill, indicated by the use of means wdiich ordinarily may produce death, such as are called deadly weapons,' or with intent to rob, commit rape, etc., all of which are specially provided for by statute.
The offense charged in the indictment in this case is a misdemeanor, and for that, and not a felony, can the defendant be punished.
In Commonwealth v. English, decided in 1810, 2 Bibb, 80, the defendant was indicted for a battery, and though the judgment, which was for a fine exceeding the statutory limit, was affirmed, yet the offense was recognized by the court as coming under the head of breach of the peace, and being provided against by the. act of 1802.
In Ely v. Thompson, 3 A. K. M., 70, assaults and batteries were held to be embraced by the act of 1802.
In Commonwealth v. Miller, 5 Dana, 320, the same construction was given to that act, the court using this language: “A judgment rendered under the act of 1802 for a breach of the peace committed by an assault and battery, is a bar to an indictment for the same assault and battery.”
In Commonwealth v. Foster, 3 Met., 1, it was held that the Revised Statutes on the subject of riots, routs *620and breaches of the peace were a substantial copy of the act of 1S02, and a fine assessed for a breach of the peace was a bar to a subsequent indictment for an assault and battery.
In Commonwealth v. Hawkins, 11 Bush, 603, and Commonwealth v. Bright, 78 Ky., 238, the same construction was given to the General Statutes.
It thus appears that this court has uniformly held, that by the term “breach of the peace,” as used in the act of 1802, the Revised and General Statutes, the offense of assault and battery is embraced, and a conviction for one is a bar to the prosecution for the other, on account of the same transaction.
We have been referred to several cases of assault and battery, in each of which the court affirmed the judgment exceeding the limit fixed by statute. The first, Bosley v. Commonwealth, 7 J. J. M., 598, decided in 1832, and the last, Dickerson v. Commonwealth, 2 Bush, 2, in 1867; the other two being March v. Commonwealth, 12 B. M., 25, and Chandler v. Commonwealth, 1 Bush, 41. But in none of them does the question of the unlimited discretion of the jury appear to have been raised or discussed. Nor has there been an attempt, in any of the cases mentioned, to construe the statutes so as to reconcile the apparent conflict between the acts of 1802 and 1809, nor that between section 3, article 1, and section 6, article 19, chapter 29, General Statutes, which are similar to corresponding sections in the Revised Statutes. But since the case of English v. Commonwealth, decided in 1810, where the acts of 1802 were construed without reference to the act of 1809, it seems to have been strangely assumed, that if the *621trial for assault and battery was before a justice of the peace only, the punishment fixed by statute, could be imposed, while the common law, which prescribed a totally different and unlimited punishment, alone governed in the circuit court. And it has thus resulted, that according to the ruling of this court previous to 1874, when the case of White v. Commonwealth, 10 Bush, 557, was decided, the punishment to be imposed for assault and battery depended rather upon the tribunal before which the offender was tried and the law under which he was tried, statute or common law, than upon the merits of the case.
In the case of White v. Commonwealth, the defendant was indicted and tried for a breach of the peace, and adjudged to pay a fine of two hundred and fifty dollars, and the only question in the case grew out of the amount of the fine assessed, which was in excess of the limit of one hundred dollars prescribed in section 4, article 19, chapter 29, General Statutes. And the judgment was reversed upon the sole ground that the lower court erred in instructing the jury they might assess the fine at their discretion. In that case, as therein stated, this court was led by the apparent conflict between section 3, article 1, and section 6, article 19, for the first time, to look into the history of legislation in this State on that subject, and after a thorough investigation decided that the act of 1809 was intended to give the circuit courts jurisdiction concurrent with justices of the peace of prosecutions for offenses enumerated in that act (assault and battery being included), and not for the purpose of subjecting offenders to a greater punishment in the one court than in the *622other, and for the same purpose section 6, article 19, which is similar to the act of 1809, was put into the General Statutes.
Said the court: “Section 4, article 19, chapter 29, General Statutes, prescribes a punishment for breaches, of the peace; and if it be held that under section 6 of the same article a greater punishment than is thus prescribed can be inflicted under indictment in the circuit court, as and by the common law, the latter section is. brought into direct conflict with section 3, article 1, which provides that a common law offense, the punishment of which is prescribed by statute, shall only be punished in the mode so prescribed.”
As said further in the opinion, the construction given “harmonizes section 6, article 19, with section 3, article .1, which could not be otherwise done, and it also prevents the legislative anomaly of providing different; punishments for the same offense, which we can not presume the Legislature intended.”
It is obvious that the construction of the statutes, given in that case is the only one by which the apparent conflict between the two sections mentioned can be harmonized, and each of them be left in full force. It is equally obvious, if full force is given to section 4, article 19, the language of which can not be misunderstood, that for none of the offenses mentioned in that article can either fine or imprisonment be imposed beyond the limits therein prescribed. And assault and battery being, according to the ruling of this court, a breach of the peace in the meaning of that article, it inevitably follows that the instruction given in this case and the verdict of the jury are in violation of section 4, article 19.
*623The decision in the White case is utterly inconsistent - with, and in effect overrules, all the preceding cases, holding that fine and imprisonment for assault and battery may be imposed without limit at the discretion of the jury. It has been acquiesced in by the Legislature, and adhered to by this court for twelve years, and was the law as held by this court when the offense in this case was committed, and being in harmony with the Constitution and the legislative policy of the State, as well as consistent and just, should not now be overruled to the prejudice of personal liberty, which must be done if the judgment in this case is affirmed.