The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-06-21


Sallie Ward
The Case OF Professor Webster In Boston.
[From the Boston Traveller, Juno 49,
The decision was rendered in the of Pro-
lessor Webster, this morning, by Chief Justice
Shaw lie said that the court had given to the
subject the most thorough and patient examinatio
The first point TO be considered was, the objec-
lions that had been taken to the jurisdiction of the
court He proceeded, therefore, to review the law
that capital cases should be tried by full court
and the evident intention Of the Legislature, in
making this provision, was, that questions of law
might be fully considered, and finally decided, as
they arise during the trial. so as to avoid the incon-
venience of new trials.
Then, again, the prisoner had opportunity to
take exceptions before the sentence, so that, when
The sentence was pronounced, il was to be pre-
sumed that every question of law had been duly
considered and settled Still. il was be remenl-
bered that when new facts arose, or any material
errors were discovered, the law so tenaciouslv
guarded the rights of the accused party as to make
provision for revision and setting aside of judg-
meDt of the court. But il was evident that the
Legislature intended that this should only bs applied
where some material error had occurred. With
this view of the law, the court would proceed to
consider the objections which had been made to
the judgment.
The first objection was, the alleged want of ju-
nsdcuon, on account of irregularities in the mu-
nicpal court. And here, the Chief Justice read
the exceptions taken against the jurisdiction of the
court, and proceeded TO review the argument pre-
sented by the prisoners counsel, on the points
named in the bill OF exceptions. The first question
was, what was necessary TO give the court juris-
dicton A compliance with laws merely de-
signed to give notice TO parties, not necessary
TO give jurisdiction. Previous to the statute Of
1852, the Supreme Court had exclusive Jurisdiction
in all criminal cases BY that statute, il was pro-
yded that all but capital cases might he tried by
the Court of Common Pleas. Afterward, in order
to avoid the Inconvenience of grand jsries attend
ing upon the Supreme Court, II was provided that
they should attend the Court Of Common Pleas,
and that their indictments should be certified to the
Supreme Court. But this provision did not then
apply TO the county Of Suffolk.
The revised statutes also gave the Supreme Judi
cisl Court cognizance Of all cases. both civil and
criminal. BY the act Of 1914, the provision con-
corning grand juries was applied To the county of
the Mnncp. Court and n case Of ,
was 10 be sent up 10 this court. Ii under this
act that these exceptions, were takep. He there
fore read this statute and reviewed It's provisions
The Supreme Judicial Court, he said, had still, by
this act cognzance of all capital cases. The Com
mon Pleas and the Municipal Court had urisdic-
and Ss ber a
was found, the Supreme Court had jurisdiction,
and nothing more was necessary than to have the
fact legally certified TO them.
No adjudication was necessary in the Municipal
Court. IL the accused was arragned, IL was to
answer to this court; and il not, 1t was for this
Court 10 issue process for his arrest. There was
but one Court which had cognzance of the case,
and but one custody. In the case OF the Common
wealth rs. Dow, the indictment was sent up at the
wrong time, and yet II was held that the Court
had cognizance ef the case, notwithstanding. The
mode Of bringing the case before the Court was
immeterial, and did not affect the jurisdi lotion OF
the Court. The Court decided in that case, that
the jurisdiction Of the Court did not depend upon
the particular time OF entry, but upon cognizancs
OF the subject matter thereof
The neat point was the objection that was taken
that there was no adjudication Of the indictment
before the Municipal Court But such adjudication
was not necessary. The sending up OF the indict-
ment was a mere ministerial act, and did not re-
quire the action Of the Court at all. twas a daty
devolving on the clerk.
In regard TO the provision Of the act requiring the
indictment to be sent up at tse next term OF the
Supreme Court, or at any intermediate session OF
the Court, the real and obvious design OF that
statute was 10 provide that, II the Supreme Judicial
Court was in actual session, adjournng from day
TO day, the entry OF the indictment might be made
in this Court al any time when II was ia session
till the next term. IL might be done. we'll as in
former proceedings. when the Grand Jury was in
attendance upon this Court, and their indictment
brought directly into IT.
In regard TO the objection that the ypy OF the
indictment sent to The Sheriff, and the process Of
the Sheriff were without SEAL the Court could find
no provision in the law requiring the seal.
Moreover. II was sufficient argument against
this. as well as the next objection that the Sheriff
must return the process 10 the Court that issue IT,
To say that these ministerial offices, and did
not affect the jurisdiction of the Court.
The CLERK he'd sent up the original indictment 10
this court, and Their fore there objection
this ground. II IL was still farther contenici that
the proper officer should transmit the record Of the
Municipal Court, II that referred to the prosecuting
officer, II was mistake. There was no officer in
the case but the clerk, and he was not to deliver
the indictment 10 any other person. but 10 keep IL in
his own custody. He was clerk Of both courts Ii
his duty to keep the indictment in his official
custody His sending u up was only transferring
IL - .xfI Al.
was not necessary 10 the jurisdiction Of this court
that any such record should be brought into 1t.
In regard to the argument Of the counsel for the
government, that the prisoner h id waived his right
70 any Of these objections by not making then be-
fore Judgment was entered, the Court had consi-
dered the NATTER thus far merely IL respected the
question Of Jurisdiction, but allowing that the court
had jurisdiction, the prisoner might have the bene-
hts Of actual defects In the proceedings But the
court had not thought Il necessary to enter into the
question Of waiver OF the prisoners rights, by pro-
ceedng 10 Trial. because all the acquisitions Of the
law had been substantially complied with, and
there was, therefore, ground Of objection that
II was not thought necessary TO 90 into the question
| Of waiver.
The Court had therefore, come to the conclusion
that these alleged defects did not affect the jurs-
dcton of the court, and that all the provisions OF
the law had been ssentially complied with And
| in this opinion the Court were agreed. But the
Chief Justice expressed his own opinion (no, how
ever, as a decision.) that the Supreme Judicial
Court would have jurisdiction, II return of
the indictment bad been made by the Municipal
Court, and that nwoud be competent for this court
TO order up the indictment by ccriiiorari, and to
bring the prisoner before the court and 20 try the
case. lie had come TO this conclusion himself,
since the decision was made up by the court.
The last error alleged was, that the judgment OF
the Court and the manner Of its entry by the clerk,
were illegal IL had not been the practice of this
court, lie ssid 10 direct the form W which the judg-
nont should be recorded; but this had been entered
mp the usual form. u was not for the Court 10
Tx the time place cf the execution; and IN regard
TO The objection made against the wording of the
sentence, the Court did not regard the form as err
roneous But II IL were, IL would be competent for
the court nov in session. " being the same term at
petition for the allowance Of wit Of error was
therefore dismissed.