I fully concur in the views taken by the chief justice in this case, and it is useless perhaps for me to enlarge upon them. In relation, however, to one or two points embraced in this motion, I will add a few remarks.
The caption is no part of an indictment. It is said to be only the style of the court in which the indictment is found. While the indictment remains in that court, it is not necessary, and I believe not usual, to add the caption; but when it is removed by a writ of certiorari or otherwise, the caption is added by the clerk. It is a mere ministerial act of that officer. I do not discover that it was not properly done in this case.
The alleged misconduct of the supervisors of Monroe county, in selecting the grand jurors, if shewn in a more satisfactory manner than it is in this case, would not authorize us to sustain the motion on that ground. One of that body avowed, that in executing the duties of the act of 1827, he excluded from his choice all free masons and that some others did the same. I am free to say, that the setting up a rule of exclusion, not warranted by the statute, was improper and reprehensible, and if corruptly done, constituted an offence; and even if done under a mistaken notion of duty, it can receive no countenance from us.
After diligent search, I do not find that an objection to an indictment has been sustained where the jurors were probi et legales homines. Although some of the supervisors acted upon a rule that excluded individuals who had all the qualifications required by statute, this did not operate to bring in any person who had not those qualifications. The law does not require all the qualified persons in the county to be selected. The supervisors selected the full number, and those they selected were competent. Notwithstanding all the members of a particular association were excluded, it does not appear that the supervisors returned one man whohad not the requi-. *323site property qualification, who was not of approved integrity, sound judgment and well informed. I admit that it was properly urged on behalf of the motion, that the being a free mason was no disqualification, but it is no less true, that being an anti-mason is not a disqualification. The jurors returned by the supervisors were therefore legal jurors, and the indictment found by the jury cannot be quashed on the ground of its being the act of improper indictors.
I have had more difficulty in disposing of the objection made to Lacey and Wood. What is urged against Wood particularly, would have been sufficient to exclude him on a challenge upon the ground of favor; though on the argument, it was said to be otherwise by the counsel for the people. The opinion of Ch. J. Marshall on the trial of Col. Burr,, and of Woodworth J. in the case of The People v. Burlier, are decisive of this question. If the objection to these jurors could have been presented when they were empannelled, and the facts on which it rests properly authenticated, I think it would have been sufficient to exclude them.
As the defendant was not recognized to appear at the sessions when the indictment was found, he did not know that any charge would be laid before the grand jury against him, and consequently he had no opportunity to object to these jurors before they were sworn and had presented their indictment. He had not done or omitted to do any act whereby his rights are compromited; but it does not thence follow that he can have this indictment quashed, because, at a previous stage of the prosecution, he would have had a right to remove one of the .jurors from the panel. Though I feel the force of the argument, that the defendant should be allowed the benefit of an exception to a partial grand juror, 1 cannot turn my view from the consideration of the great delays and embarrassments which would attend the administration of criminal justice, if it was to be obtained in the way now proposed. No authority for adopting this course was shewn on the argument, and I have not since' been able to find any-.. It would be a novel proceeding, and there is reason to fear it might be followed with more serious difficulties than are now foreseen.
*324Among the .objections, not the least, as I .conceive, Would £,e jyant 0f a proper mode to establish the alleged disqualjficqtion of the grand jurors objected to. It could not be well d.oue by affidavits, and to do it through the instrumentality of triors, almost necessarily in the absence of the person tried, and long after he had performed the act which it would be the object of the trior to shew his disqualification to perform, would be worse than inverting the order of things. Great caution should be uged to preserve the administration of justice pure and impartial. It is not so yitally important to persons accused that grand jurors should be beyond all exception, as that petit jurors should be so, and in some instances the law mqJtes a distinction between them ; but I think it is rarely or never the case, that the finding of a petit jury, either in a civil or criminal case, has been set aside on the discovery that a juror had a pre-conceived opinion in relation to the matter passed upon, .although such opinion would have constituted a valid objection to his being empannelled.
Motion denied.*
Since the determination of this question, Mr. Justice Marcy has called the attention of the reporter to a case which .arose in the supreme judicial court of Mussachusetts, in 1811, respecting the challenge to a grand juror. On a grand juror being called to be sworn, Story, (probably now Mr. Justice Story of the United States’ bench,) as amicus curia, suggested that one-------— had been accused of the crime of murder, and that his case would probably come under the consideration of the grand jury; that the juror called was a neighbor of the accused^ had originated the complaint against him, and had most probably formed a strong opinion of his guilt. The court, alluding to the challenges to the grand jurors on Burr’s trial in yirginia, and pronouncing that a solitary instance, observed, that if objections of this nature were to be received, the course of justice would be greatly impeded; that the knowledge of the general character of parties and witness es by those who reside in the vicinity of persons accused, rendered them more fit to serve on grand juries. If, however, any individual juror should be sensible of s uch a bias upon his mind that he could not give an impartial opinion in any particular case under the discussion of the jury, such juror would feel it his duty, as it would be his right, to forbear giving an opinion, or perhaps to withdraw, while the subject was under discussion. The juror was sworn. (8 Mass. R. 286.)