dissented.
I am not able to concur in the opinions just delivered, I think the plea of alienage should have been allowed, and that too, notwithstanding the plea of misnomer.
That plea should not, I think, have been received. It is not a good plea at Common Law, in a case of felony ; because the proceeding in such case is against the person of the prisoner, by whatever name he may be distinguished.a We have no statute, as in England, allowing it, and a middle name, or the initials of one, cannot be pleaded in abatement, even in a civil case.b This being the case, I would not, in a capital case, deprive the party of a second legitimate plea in abatement, though the first immaterial one had been allowed by the Court below, and had been found against him.
By our statute, a “grand jury of a competent number of good and lawful men, of the county where the Court is held, shall be returned and empannelled agreeably to law, to attend each term of the Circuit Court.”c By the Common Law, these “ good and lawful men,” must be citizens: they must not be “ aliens, villeins, outlaws, either in criminal or perso*140nal actions ; persons attainted of treason or felony ; or persons convicted of any species of crimen falsi, as conspiracy, or perjury, which, may render them infamous,a and any person returned on a jury obnoxious to any one of these objections, may and will, at the suggestion of any person, before bill found, be rejected.b
This right, so far, it is admitted, exists at Common Law, and Chittyc says, it may also be done after bill found, by plea in avoidance ; and he refers to Hawkins,d who states, that it is doubtful whether this right exists at Common Law or by the statute of 11 Henry IV, chap. 9. He refers also to Bacon, Juries A. But, he says, the exceptions must be taken before indictment found.
This statute, after reciting that inquests had been taken at Westminster, by persons not returned by the sheriff; by persons outlawed; by persons who had fled to sanctuary for treason and felony, declares that all such indictments so made shall be null and void, and for nothing held. This statute does not embrace alione, and no caso can be found in England, where the question has boen made. It could not, of course, arise on any one of the other qualifications since the statute, and we are left to decide the question, more upon principle than authority.
The case of the Shearers, alluded to, shews, that the Judge there had his doubts, as well as Hawkins. The only case to be found, of á decided opinion, is that in 9 Mass. R. This was a dictum of Justice Sewall, and the reason, to wit, that to allow the plea would contradict the averment in the indictment, that “ the jurors mere good and lawful men," does not seem to be entitled to much weight. Its correctness was questioned by the Court in a caso in 2d Pickering.
In England, by the statute of the 3d Henry VIII, *141the justices reform the panel returned by the sheriff, by putting off such' as are disqualified, and adding others in their place. It has, however, been decided, that this act does not repeal the act of the 11th Henry IV, where it does not conflict with it, and therefore, an indictment found by an outlaw, or person returned at the instance of any person, (except of the justices) may still be abated on plea as before the statute : neither statute authorises the plea; it is allowed to carry into effect the provisions of the statute which declares the indictment void.
It is true, our laws regulating the formation, and selection of juries, is more guarded than in England. It requires, every two years, a list of free-holders and house-holders to be returned by the sheriff to the circuit court clerk, which are placed in a box, and the panel is drawn from this box by the sheriff and clerk, and if it appear that a person, whose name is drawn, has removed from the county, or is deceased, his name shall not be included in the panel, but no other power is given to reform the panel: aliens and felons may be there, and may be returned. In. this particular., the power does not extend as far as it does in England.
Is our law then, so guai'ded that no objections ought to be allowed after bill found ? If, indeed, the presumption is, that the law has taken sufficient care of the interests of those who may be indicted, (and every man in the community is liable to be,) why is an exception to be allowed before bill found ? Yet it is clear, that any one of the objections known to the Common Law, may be made by any person as ami-cus curias, before bill found, and the person objected to will be discharged.
If the plea is hot allowed, this consequence follows, that a person, before bill found, may, upon sugges*142tion, purge the jury, as long as he can find upon it persons disqualified; but after he is indicted, even though it be for a capital offence, he can aliedge nothing against the panel, though every person on it I nay be, in fact, disqualified. Does this seem rea-* sonable or just,
In England, by statute, a person who procures himself put upon a jury, or who has been put on at the request of another person, will make the bill void, though he may be qualified in other respects, and though there may have been a competent number of persons beside him on the jury,’ who were qualified, and who concurred in finding the bill.a Is not the principle of the objection, to be found in the Comnion Law, and does it not exist properly then, without the statute.
Tho distinction taken, as to the time when an exception can be made, precluding it after an action by the grand jury, and the analogy which is áttempted to be drawn between this case, and that of exceptions to the petit jury, which are not allowed after verdict, does not-hold, The'analogy fails when the reason fails. In the case of tho grand jury, the defendant has never been called to except, until bill found. In the case of the petit jury, he has had his day for objection and selection. There must be an end to the prosecution ; and when the1 party has had his day of objection, he must submit.
The true and safest rule, to my mind, is this, that when a bill has been found by persons who, by the Common 'Lam, are disqualified, it should be held void upon plea,, and the defendant should not 'be held to answer an indictment proceeding from so vicious a source. By adopting the other rule,, the act is made to sanctify the m'eans, and the party looses íiis. tight to- object, for not having done sq before he *143had a motive, and on being arrested, though he can shew that the accusation has proceeded from aliens, felons, and persons packed upon the jury by fraud, he is told that he is too late — the accusation has purified the accusers, and he cannot be heard.
Even in a civil proceeding, a person is permitted to except to the illegality of a proceeding, until he waives the right; much more then should this right be held sacred in a criminal case, where it is' said a man cannot waive his rights.
But, public policy and convenience, it is said, forbid this proceeding. What principle of public policy can be more sacred than that the sources of justice should be pure? and wherein is the inconvenience greater after bill found, than before ? A bill is found to-day — the defendant is put upon his trial to-morrow — he can alledge nothing against the grand jury, when the next entry on the minutes may be an order discharging the same jury, at the suggestion of any •idle bye-stander who may chance to come into Court, and against whom no .charge is made. Ought not the Court rather to say, that indictments found by persons not “ good and lawful men,” shall be “ revoked, annulled, void, and holden for none forever.” If I am to be put on trial for my life, let my accusers, at least, be boni et legales homines.
The want of authorities in favor of the plea, is suggested as an argument against it.' I infer the opposite. There are cases so plain, that precedents can not be found shewing their having been contested. The point could not be made in an appellate Court, unless, as in this case, the plea was denied. It is hardly possible that a case never occurred, but it is possible — may be quite probable, that, the plea was never before denied.
Indiclments hare boon quashed, and nolle prose-*144qui’s have been entered for irregularities, much less than this.
In 2d Mason, J udge Story quashed an indictment because’ it appeared on trial, that á man had given evidence befpre a grand jury, who had (though not a Quaker,) been affirmed, he having conscientious scruples against taking an oath.
In 2d Pickering, a 'bill was quashed, because found by a person, one of the grand jury, who had been substituted for one of the regular panel, as a matter of convenience to the regular juror; and I presume hundreds of cases have occurred where the prosecuting officers have entered nolle prosequi’s, on suggestions of irregularities, not even affecting the jury. Hence the want of decided cases to avail us in the investigation. The inconvenience'is trifling — it is preferred even in pleas of misnomer. A new bill can be found. If necessary, the jury’can be reformed, and the pro-, ceedings can be had without a suggestion of a defect.
By this course, and by always listening to any suggestions which will sheiY, that the grand jury must always be not only pure, but above suspicion, you remove the temptation to corruption, and keep it, what it was always intended to be, the grand inquest of the county, composed of £: good and lawful men — as ready to reject unfounded charges, affecting the life, liberty, and character of the citizen, hs it will be to detect crime, -whenever it exists. Let the Sources from 'whence justice emanate, be always pure, and the law-can look crime in the face, and punish it without á blush. I cannot imagine, that a rule which, for all practical purposes, has been exploded in England, since the time of Henry IV, and when it is doubtful whether it ever existed at the Common Law, is fit to be applied under the liberal and enlightened policy of the present age.
3 Bacon's In. G. 2.
5 Johng
Aik. Dig.243.
1 Chitty’s Cr. Law, 207.-3 Bacon’s, Abr. 725.
3 Bac. Abr. 725.
1 Cr. L. 207.
Hawk.book2 ch. 25, § 18.
3 Bacon's Ab. 727.