Boyington v. State

By Mr-. Chief-justice Saffold :

The prisoner, Boyington, was indicted in the Circuit Court of Mobile county, for the crime of murder, alleged to have been committed on the body of one Nathaniel Frost. After the indictment had been found •against the prisoner, charging him by the name of Charles Boyington, he pleaded in abatement that ho was Known and called by the name of Charles R. S. Boyington, which was his proper name, and not that of Charles Boyington, &c. To this plea the Solicilof filed a replication, taking issue thereon.

This issue, on the 15th day of November, 1334, (being a day of the term of the Conrt,) was submitted to the jury, who returned a verdict against the prisoner that his plea was untrue.

Two days thereafter, the prisoner filed his two other pleas in abatement.

1.. That George Davis, jr. one of the grand jury that found the indictment against him, was not a citizen of the United States of America, or of any one of the same, but a subject of the Kingdom of Great Britain and Ireland, and had never been na-turalised.

2. That one C. Waldo, another member of the same grand jury, previous to his being elected and sworn, had formed and expressed an opinion respecting the prisoner’s guilt or innocence, by saying, if ho should be on the jury to try him, he would bang him.

These two latter pleas, on motion of the Solicitor, were, by the Court, stricken out, as being illegal and insufficient, and a respondeat ouster was awarded. After • which, on the 20th of the same month, the prisoner having- been arraigned, pleaded not guilty ; ’whereupon a trial was had before a petit jury, who returned a verdict of guilty : on which, judgment was pronounced. '

At the trial, however, the presiding Judge reserved for the consideration of this Court, as novel and difficult, the question, whether or not there was > error in' the decision of the Court, ordering the two pleas, as-stated, to be stricken out. ' ■ ;

' This, alone,'is the question presented for the consideration and decision of this Court.

No objection is .made to the sufficiency or regularity of the record, other than as mentioned. The grand jury appear to have been selected by the agency, and under the inspection of the judge of the county court,- and commissioners of roads and revenue, together with the clerk and sheriff, in the mode prescribed by the statute ; and the indictment purports to have been found by sixteen “good and lawful men-of said county, impanelled, sworn and charged,” &c.

Whether the plea in abatement, on the ground of the alleged misnomer, (in as much as it related alone to the initials of the middle name, affecting neither the Christian or sir name of the prisoner) presented-a material issue? and whether, if considered material or immaterial, the fact of its having been pleaded, and found against the prisoner, could affect his right to the benefit of any subsequent plea in abatement, is a question which, u'ndpr the views we have taken of the other points in the case, is unnecessary to he examined in arriving at a decision of it. .

In reference.to the question reserved, I consider it a well established principle of the common datv, that grand, as well as - petit jurors, must be probi ei legales homines: therefore, it is a good exception to one re* ■turned on a grand jury, that he was an alien, or vilr lien, or that he was outlawed of a crime, oí that he was returned by the proper officer, or that he was returned at the instance of the prosecutor; hut it is sa^ se exceP^°ns must be tahen before indictment found.''a

By the statutes of this state, these disqualifications are not expressed; it is only provided that, “No per* son under the age of twenty one years, or above the age of sixty, nor any person continually sick, or who may be diseased at the time of the summons, nor any person who has been convicted of any felony, perjury, forgery, cheat, or conspiracy, or offence; (crimen falsi,) shall be summoned on a jury. ”b Yet, I would not hesitate to recognise the common law disqualifications as being in force with us, so far as they are known to our law, and the same reasons can apply in all cases, where taken in due time and in proper form.

But, it is necessary to observe, that as early as the 11th year of the reign of Henry IV, an English sta-> tute was passed, reciting in the preamble, that extensive injustice and oppression had arisen to the lawful liege people of the King, from inquests taken at-Westminster, by persons named to the justices, without due return of the sheriff; of which persons, some were outlawed, and others had fled for refuge to sanctuary for treason and felony; therefore, it was declared, for the ease and quiet of the people, that indictments so found should be revoked, annulled and for nothing held; and that thereafter, no indictments should be made, but by the King’s lawful liege people, duly summoned by the proper officer; and that indictment otherwise found, should also “ be void, revoked, and forever holden for none.''c

The finding of an indictment gives to it the dignity of a record; and it is a general principal of the. common law, that no plea shall be admitted, to impugn the verity of a record ; yet, that such plea may be authorised by statute, none will question ; and it appears that the statute referred to, had this effect. Under its authority, the Courts of England decided, that any person arraigned on an indictment, taken contrary to the statute, might plead such matter in avoidance of the statute, and also plead over to. the felony.’'a

At a subsequent period in the 3d ef Henry another act of Parliament passed, directing that all panels of grand jurors to be returned by the sheriffs and their ministers before the justices of jail delivery, or justices of the peace, whereof one to be of the quorum, in their open sessions, should be reformed by putting to and taking out of the names of the persons so impanelled, by the discretion of the justices, and that they should command the sheriffs to put other persons in the same panel, and when so reformed should be “ good and lawful.”b

The English judicial decisions have farther ruled, that this latter statute does not take away the force-of that of 11 Henry XV, except so far as they are repugnant; and therefore, if any indictor be outlawed, or returned at the nomination of any person, contrary to the statute of 11 Henry IV, except of the justices, under their authority to reform the panel as aforesaid, the indictment may be avoided by plea, as in the former case.c

Since the statute referred to, of Henry XV, pleas in avoidance of indictments, for objections to particular jurors, principally on the ground of outlawry, have, in many instances, been allowed in England; yet, much difficulty fas also been felt and expressed, on the question whether such objections can be pleaded in abatement; or according to a different phraseology, in avoidance of the indictment. Previous to that statute, there seems to have been no instance of it.

■ An eminent Jurist remarks on this- subject, “ that it was resolved in the Year Book of 11 Henry IV, by the advice of all the-justices, that one outlawed on an indictment of felony, may plead in abatement of it, that one-of the indictors was outlawed for .felony, &c. But it seems to be. the better opinion,, that this resolution is rather grounded on the statute of 11 Henry IV, which was made- in the -same term in which this- resolution was given, than on the Common Law; because it appears by the very same Year Book, that when this plea was first proposed, it was disallowed :■ from which, I suppose it. is collected, that the subsequent resolution was founded on the-authority of said statute, which .may be intended to have been made after the plea was disallowed, and' before the subsequent resolution, by which it was adjudged good. Yet, considering that the said resolution was given in the beginning of Hilary term, and that the Parliament that made the statute was not holden -before the beginning of the same term, and therefore, it is not likely the statute was so soon made ; and also,, considering that the said resolution was given by the advice of all the Judges, who seem to have been consulted about the validity of the plea above mentioned», at the Common Law, and takes no manner of notice of any statute, but only of the law in general, it -may deserve a question, whether such plea be not good at .Common Law.”a

I have thus quoted the section at length, because I discover the question there suggested, has been uniformly. referred to as the authority for such pleas in abalement, and has. been the source.of.much doubt and speculation in that country, and this, ever since. The difficulty has been to determine, whether any right to plead in avoidance of an indictment for the incompetency of particular jurors existed at Common Law, or whether it had its origin in the stattite of 4th Henry, and consequently can exist only within that Kingdom and its dependencies.

As I have already shewn, the principle maintained by Baco7i, is, that the right in England, so far as it exists, was derived from the statute, and that, at Common Law, the exception can only be taken by challenge to the juror before indictment found. The principle is clearly recognised, by all who have treated of the subject, that it is the duty of the Court, if informed of any legal objection to a person about to be sworn on the grand jury, to exclude him ; also, it is the acknowledged privilege of all persons present, of those anticipating prosecutions, or others, as the friends of the Court, to point out the objection, and ■cause the exclusion of the juror.

Chittya remarks, that, if a man who lies under any legal disqualification, be returned on the grand jury, he may be challenged by the prisoner before the bill is presented; or if it be discovered after the finding, the defendant may plead it in avoidance, and answer over to the felony. That this necessity for the grand inquest to consist of men free from all objections, existed at Common' Law, and was affirmed by the statute of 11 Henry IV, “which enacted, that any indictment taken by a jury, one of whom is unqualified, shall be altogether void, and of no effect whatsoever also, he says, “ that a defendant before issue joined may plead the objection in avoidance; but if he take no such exception before his trial, it seems doubtful how far he can afterwards take advantage of it,” &c. It however appears from his references, that he relies for his position respecting; the right to plead in avoidance, on the authority of the Year Book,, and expressions of Hawkins, together with some adjudications under' the statute of England, to which I have referred, and which sustain him only so far as has. been shewn.

It also, appears,, that on the trial of the Shearers,.in Ireland,, in which the right claimed in this case, was brought in question, (but a decision of which was not considered necessary in disposing of that case,.) that Court did not consider the right to plead this, matter in abatement,, as having been established. Lord Carleton, in expressing the opinion of the Court, uses this language“ That a person being an alien is a good cause of challenge, I think is well founded, but whether-it can be taken advantage of by way of plea, I reserve my opinion.” Again, he says, “ that a. juror is- outlawed may be taken advantage of by plea- of avoidance of the indictment, but whether such plea is given by the Common Law, or depends on the statute of II Henry IY, is a question of some difficulty; that it was.passed about the same time with the case mentioned by Hawkins.'1'1 He further said, that “ From a manuscript note which he had made in the margin of his Hawkins, he perceived the statute received the royal assent in quindina Hillarii,. which was on the 27th or- 28th of January, and might, perhaps, have preceded the decision referred to by Hawkins.”

It appears, from a- review of the- authorities so far, that the existence of this right, at Common Law,, is at most, very doubtful; but that even if the principle was conceded, this right was allowed- while the law of England confided to the'sheriff and his ministers, the absolute and exclusive power and duty of nominating and. returning on the panel of the jury such persons as they chose to select, and when it had become usual for outlaws, traitors, and felons, through the contrivance or inadvertence of these officers, to foist themselves into the panels to effect oppression, or otherwise pervert justice; — that, to prevent these evils, the justices resolved, (Parliament enacting a similar .provision about the same time,) that such objections should be available by plea in abatement. If it remain doubtful whether the resolution, or the statute preceded, such as I have described were the evils to be guarded against, a necessity which has no existence under our law. Our panels, as we have seen, ■are subjected to a more effectual scrutiny than those in England, as prescribed by the statute of 3 Henry YIII, and which we have also seen had, in the opinion of the English Judges, the effect to supercede the necessity of, and exclude the right to plead this •matter in avoidance.

To shew more definitely the manner in which our juries are scrutinized and selected, reference may be had to the statute,a where it is provided, that, on each return of the sheriff to the clerk of the Circuit Court, of a list of the freeholders and house-holders within the county, the judge of the county court, with the commissioners, clerk and sheriff as aforesaid, shall, on •a day appointed for the purpose, assemble at the court house of the county, and select from such list, such persons as they or a majority of them may deem qualified to serve on juries, and the names of the persons so selected, shall be put into a box to be kept by the clerk for that purpose; and the persons thus selected shall be liable to serve on juries ; and shall be further chosen by lot, in the manner prescribed by a previous statute.

It is true, that the English statute referred to, of Henry IY, did not express the right to plead matters of this kind in avoidance; it virtually secured the right, by declaring all indictments otherwise found, null and void, and to be for nothing held. It is equally true, that the subsequent statute of Henry VIII, did not expressly inhibit this right of pleading, yet it denied it by sufficient implication, when it declared that the panel reformed as therein directed, should be “ good and lawful.” Both these points of construction have also been well established by the uniform current of English decisions. Hawkinsa also maintains these positions in nearly the same language already quoted from Bacon. He says, “ It hath been resolved, that the statute of 3 Henry VIII, doth not take away the force of the above recited statute of 11 Henry IV, in any point wherein it doth not expressly vary from it; from whence it follows, that if any of the jurors who find an indictment be outlawed, or returned by a sheriff or bailiff, at the nomination of any other person, the indictment may be avoided in the same manner as before, by force of the 11th Henry IV; except such nomination be made by the Justices, authorised, by 3d Henry VIII, to reform that panel.”

From this declaration (the latter clause particularly) the conclusion obviously results, that such jurors as had been approved of and nominated by the justices should bo considered, in the language of the statute, “ good and lawful men,” so far at least, as to make their indictments valid and conclusive, if objection were not made before they were found. Then, the farther conclusion appears to me to be equally irresistible, that as our mode of selecting the jury is better guarded, our lists of jurors being subjected to a closer examination and purgation, than can be expected from the English mode of reforming theirs — on principle and authority, the right of pleading to the personal disqualifications of particular jurors, who have been selected pursuant to the statute, must be denied.

These views of the case are no less applicable to the 3d plea in abatement.

The matter of this plea — the formation and expression of a previous opinion by the juror against the prisoner, must rest on the same or a less valid ground of objection. As respects the difference, it is, on this occasion, only necessary to remark, that the expressions imputed to the juror Waldo, might not be considered conclusive of his incompetency. Had an examination been had on challenge of the juror, or in any other proper manner, it might have been found that the expression of the juror was intended, and understood only as a matter of levity or jest, or that the juror was prompted to it by mere rumor, and had either retracted the expression, or was ready to do so ; that he had no knowledge or satisfactory information of the facts — no enmity or prej udice against the prisoner, and that he felt his mind perfectly open to conviction upon legal evidence.

But, without pursuing this point farther, I proceed to a further notice of the right, in general, to plead in abatement, the incompetency of particular grand jurors.

Questions of this kind, appear to have been of very rare occurrence in the United States. But, in the case of The Commonwealth vs. Smith,a—the defendant having been indicted for usury, pleaded in abatement, that one of the grand jury, Thomas Wing, being of the denomination of Quakers, did not take the legal oath as grand juror. It appears from the replication and demurrer thereto, that the juror being scrupulous of taking judicial oaths, had only affirmed.

Sewall, Judge, in delivering the opinion of the Court, said, “ Whether an exception of this kind is to be received at this stage of the proceedings) is a question which seems not to have been finally determined.” He further remarked, that “ Indictments not found by twelve good and lawful men, at the least, are void and erroneous at Common Law; and the circumstance that it was found by twelve men is stated in the caption of every indictment, according to the English forms and practice. But this formality has not been observed with us : and the omission is not to be objected to in indictments found according to our practice, viz : “ The grand jurors of the Commonwealth on'their oaths present,” &c. An irregularity in this respect, if it should happen, might become a subject of enquiry upon' suggestion to the Court; for, under their superintendence the grand jury is constituted, and must be understood to have the legal number of men. This being the construction to be given to the record, after an indictment has been received and filed by the Court, no averment to the contrary can be admitted as a formal plea. Objections to the personal qualifications of the jurors, or to the legality of the returns, are to be made before the indictment is found ;■ and may be received from any person who is under a presentment for any crime whatever; or from any person present, who may make the suggestion as amicus curice.” But Quakers (as was held by that Court,) are capable of serving as grand jurors, and the affirmation by them, under the various statutes, was considered sufficient.

In U. States vs. Coolidge,a after the indictment had been found, it was discovered that the grand jury had received testimony of a person not under oath, and this satisfactorily appearing to the Court, by affidavits, the Court, on motion of the prisoners’ counsel, quashed the indictment, as having been irregularly found. It was there also ruled, that one notbeinsr of the religious sect, usually called Quakers, though having consciencious scruples against taking an oath, could not give evidence on affirmation, hut would he committed until he consent to take the usual oath.

In reference to the case last reviewed, it will he observed, that it furnishes no principles inconsistent with those previously advanced; it does not question the competency of any member of the grand jury, or sanction the plea in abatement for any such exception. The Court only proceed, in a manner analogous to setting aside verdicts of petit juries', to quash or avoid an indictment for the improper or illegal conduct of the grand jury in finding it, not upon evidence of sworn witnesses, but upon declarations without the sanction of an oath. This would, doubtless, have been a sufficient ground for a new trial after verdict, if not sooner discovered.

Other cases have occurred 'in Massachusetts, on which the prisoners’ counsel place more reliance. In Commonwealth vs. Parker & al.a—after a conviction was had for murder, a motion was made in arrest of judgment, on the ground that J. Wythe, one of the grand jury, was not properly on the grand inquest, because the return of the venire for the town of his residence, was not signed by any officer : whereupon, the Court permitted the constable, whose duty it was, and who had neglected it, (he being present, and still in office) to amend the .return, by signing it- — then considered the matter.

The prisoners’ counsel relied upon the doctrine of Hawkins, in reference to the statute of 11 Henry IV, which I have already quoted : also, on a case of The Commonwealth vs. Davis in MS. drawn up by Dana, and certified by the Chief Justice of the Common Pleas, who was of counsel in the case. The facts of this latter case appeared to he, that Davis was convicted, in 1794, of burglary, and after verdict, it was discovered that one Locke, who served on the grand inquest had not been chosen as a member, but that the name of one Burr, who had been chosen, had been erased from the return of the venire, and Lock’s name inserted in its place. Upon a motion in arrest of judgment, it was contended, on the part of the government, that as there were seventeen jurors besides Lock, the indictment was good; to which it was answered, and so considered by the Court, that there might have been only eleven without him, who agreed to the bill, and that the judgment was therefore arrested.

The Court, in deciding the case of Parker et al. on the objection to Wythe as a juror, observed, that the precedents in which such am objection has prevailed, have generally been, cases where the juror was not qualified to serve. Then, noticing the statute of Henry IY, and Hawkins’ reference to it, the Court proceeds to say, “ The mischief was, that persons were put on the jury who were not qualified to serve— they were outlawed, &c. and had no right to be on the jury. The casé referred to, of The Commonwealth vs. Davis, proceeds on this same principle,” ■&c. But, “ the present case is very different. Here-, there was no objection to the qualifications of the juror. He was entitled to be drawn as a grand juror, and he was drawn, and had notice and attended, and was sworn and allowed to act with the grand jury.” This opinion further reinarles — “ It is objected, that there is a difference between traverse jurors and grand jurors, because traverse jurors may be challenged. The books say, that grand jurors may also be challenged. But, there is a difficulty in the case, for a bill may be found against a person who has not been recognised, and who has no opportunity to challenge. The case of The Commonwealth v. Smitha—if we should adopt the remarks there made on this subject, to their full extent, would put an end to this motion in arrest,” &c. In as much, however, as the doctrine of Smith's case, on this point, was not necessary to be applied, and the case in which it was expressed, was determined on another point; and because the Court had some doubts of its correctness in all cases, they decided Parker's case on the ground that Wythe was properly qualified to serve on the grand jury ; and that the constable was properly allowed to amend his return.

It may be remarked, with • respect to the case of Davis, (admitting it to be correctly reported,) that it, in no degree, conflicts with the principles I have maintained. Lock, whose name was foisted into the return, having never been chosen on the grand jury, surely could not, in fact, or legal contemplation, have the slightest claim to the character of a good and lawful juror, but the return of the venire, in reference to him, had been grossly falsified, and of course vitiated.

Parker's case is entitled to little, if any more, consideration. The juror’s authority to serve, was deemed sufficient, on objection merely, that he, did not appear from the venire, to have been summoned. It is true the Court intimated, a doubt of the correctness of the remarks in Smith's case, but decided nothing in reference to this question ; nor do they appear to have investigated the subject, to have considered the effect of the English statutes, to which I have referred, or the influence due to statutory reformations or pur-gations of jury panels, such as provided in England, or in this or any other State of the Union. I consider the law sufficiently settled to exclude the right to except to the personal qualifications of the persons selected, summoned and sworn on the grand jury, as prescribed by statute, after indictment found, and to bind ns so to declare it, whether we approve of the policy or not. But, to examine the question on principle, the impolicy of allowing the pleas in question, appears to-me obvious. It must be conceded, that if the right exists, it must apply in all cases, as well for misdemeanors and' inferior felonies, as for capital crimes. If a knowledge of the intended prosecution, by the accused, or his presence in Court, be held necessary to exclude the right, as contended in argument, this is more common and more generally to be expected in capital crimes than in charges for inferior offences. If alienage furnishes a ground for avoiding an indictment, it would seem that want of age, want of house-hold or free-hold, must do the same then various other disqualifications must stand on the same principle, requiring the trial of distinct issues on evidence, the necessity of which could not be anticipated. The same consequences must result from various grounds of exemptions from serving on juries, or the latter must be distinguished from the former, and in some cases the distinction would involve much difficulty. But the consideration, that want of the strict legal .qualifications in one or more of the grand jury, has no necessary tendency to prejudice the accused ; that it can create no presumption that one expecting to be indicted, would choose to exclude such person from the jury, if present with the knowledge of the objection, inclines me strongly against the policy of allowing such defence. I would cheerfully submit to all the delay and embarrassment, that could arise from such a course of practice, if demanded by motives of true humanity or justice. Our juries being selected by, and in the presence of the several sworn officers of the county, as already shewn— all presumed impartial, and intended to pass on all bills preferred during the term of the Court, there can scarcely be a motive or danger of oppression. The objections, generally, that would be available in one case, would be the same in all: many indictments may be found by a panel, containing, among others unexceptionable, one or two men wanting the requisite qualifications; most or all the persons indicted, may have known this, or have had every opportunity to know it — all remain indifferent or silent: after-wards, perhaps at a subsequent term, after the statute of limitations has barred the commencement of new prosecutions, (in cases subject to limitation) one concludes he can derive some advantage (delay at least) by abating the indictment against himself — he succeeds — others follow the example, and every indictment is quashed, on a ground that could do injustice to no one, and would never have been claimed, but with a hope to delay or defeat the objects of the law. If finding an indictment could operate as a conviction, I would be more disposed to demand of the Court and its officers, all vigilance in scrutinizing the jury, and none from the accused : but, in as much as indictments, when found, are but legal accusations, intended to shield individuals from frivolous or malicious prosecutions, and to subject them to trial, only on strong presumption of guilt — as, afterwards, they are secured in the right to an impartial public trial before the Court, and by a jury strictly scrutinised — entitled to be confronted by the witnesses against them, with the full benefit of all witnesses in their favor, and of counsel in their defence — I cannot apprehend danger of oppression from grand juries, constituted as ours are required to be.

The admitted privilege of any and all persons, to challenge incompetent jurors, at any time before indictment found, is sufficient to prevent all material abuses of this kind. If, however, the indictment be not predicated on evidence, as in Coolidge’sa case ; or, if it be falsified by a change of the selected jurors, or the fraudulent insertion in the return of the venire, of an improper name, as in Davis’sb case, then the question is essentially different: it is not an indictment as prescribed by law, and of course, should be subject to avoidance on plea, or motion properly sustained.

It would certainly involve great inconsistency, -to maintain, that the circumstance of a grand juror having been an alien, should be adjudged sufficient to avoid an indictment after found, when, if one equally objectionable, serve on a petit jury, which returns.a final conviction in either a civil or criminal case, (the fact being unknown until after the trial,) the verdict can not, for this cause, be disturbed. The latter, I understand to be the true principle in either case ; that such objection can only be made by challenging the juror before the trial.—(See Hollingsworth vs. Duane.c)

Notwithstanding we have neither the information of facts in evidence, or any legal authority to investigate the guilt or innocence of the prisoner ; but only to determine the isolated questions of law, reserved by the record for our revision, it is ever extremely painful to decide against the accused, on a question vitally affecting him; but Judges can exercise no mercy or discretion, beyond their opinion of the law.

In the opinion of a majority of the Court, the judgment must be affirmed.

By Mr. Justice Thornton.

The question which has been referred to this Court, by the Judge who tried the prisoner, is simply this : can he, after the indictment has been found, returned into Court, accepted and filed, plead in bar, or avoidance of that indictment, that one or more, of the grand inquest of the county, who preferred it, is an alien, or labors under any other, cf the various disqualifying objections, which ei/ecc the competency of a grand juror. ' I think lie can not, cither upon principle or precedent.

The first case in which we find only attempt was made to plead such matter, is referred to by Hawkins,a as in the Year Book of 11th Henry IV, when it was disallowed; and that author says, it is the better opinion, that those decisions, after that referred to, in which such plea ivas allowed, were made under the statute of Henry IV, which expressly declared the indictment thus found to be null and void, and of no effect. The argument to sustain the plea of such matter, is, that upon common law principles, alien-age, &c. disqualifies a juror. Now, this is equally true of the alien, &c. whether he be a grand juror, or a petit juror; and if the finding of a bill by such an one makes the indictment void, by parity of reason, the finding of a verdict by such an one, would also be null and void. Yet it is well settled, that in such case, the verdict can not for that cause, be impugned. The principle which governs in both instances in this country, where we have no statute like 11th Henry IY, is, that the tribunal to decide on the matter must be challenged before it performs the function, for which it was constituted. The office of a grand jury is to prefer the charge, and that of the petit jury is to try it. After the action of either is completed, their competency to act, is not questionable. The action of the grand jury terminates with the filing of the bill — that of the petit jury, with the rendition of the verdict. So far as the safety of the citizen is involved, it cannot be pretended, |that it is less important to overhaul the verdict, than to set aside the finding of the indictment: for the latter only prefers an accusation, whilst upon the other, depend emphatically, the issues of life and death. The only reason for any distinction in the two cases, which can be urged with any degree of plausibility, is, that in the case of the petit jury, the party has a letter opportunity of challenging, than in the other. In both cases, all the books agree, that there is a full and fair opportunity to do so, which was practically illustrated in the trial of Burr. The interest which is felt in the .case of the grand jury, is not commonly so incentive as to induce its exercise, and hence it is rarely done : but that does not vary /the essential nature of the case. This principle, which relates only to the competency of the body, whether grand, or petit jury, should not be confounded with another, which relates to the competency of the testimony, upon which the action of the body is founded. In the latter case, the doctrine is, that where the evidence is incompetent, the action had upon it, is a nullity, and may be availed in the appropriate mode peculiar to each. In the case of a verdict found-, by a motion for a new trial addressed to the Court, and in case of indictment returned a true bill, by appealing to the same tribunal, either by motion, or by plea, according to the practice of the Court.

The decision of this Court, now pronounced, adverse to the allowance of the pleas of alienage, &c. after indictment filed, I apprehend to be, the doctrine of the common law, whic^i, both.in civil and criminal matters, is in full force in this state, so far as not incompatible with the genius of our political institutions, unless altered by statutory enactment, of our own legislature. The application of the principle, is, I think, entirely obligatory upon us, and if it be unwholesome. which I am far from conceding, the ap-l propriate remedy is to be applied by another department of the government. I -would venture to predict, that a statute conferring the benefit of pleas, of the character refused in the Court below, upon prisoners ; whilst the correct organization of our grand jury, is secured by so many guards, as our present laws afford, would result rather in the obstruction of condign punishment, than in the protection of persecuted innocence.

I concur in the affirmance of the judgment, with the Chief Justice.

a Bacon's Abr. Juries A.

b Aik. Dig. 295.

c Bacon’s Abr. Juries A.

a Hawk. book 2 ch. 25, § 33.— Bac. Abr. Juries A.-1 Ch. Cr. Law, 252.

b Idem.

c Bacon’s Abr.

a 4 Hawkins, book 2, ch. 25. § 18.

a Crim. L. 1 v. 307, ch. 6.

a Aik. Dig.298.

a Hawk. book 2. ch. 25, s. 33.

a 9 Mass. Rep. 107.

a 2 Gallison, 364.

a 2 Pickering, 550.

a 9 Mass. Rep. 107.

a 2 Gallison, 354.

b Dana's MS. See page 131 of this volume.

c 4 Dallas 352.

a Book 2, c. 25 sec. 18.