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338 TRIAL OF JOHN W. WEBSTER.
the grand jury and the regularity of their finding. Perhaps he has; and
perhaps, further, if he disputes that regularity, and wishes to take excep-
tions to the ruling of the Court, there should be a record made and sent
up for the inspection of the court of errors. But what we have to reply
to this, is, that if no -such dispute is made of the doings of the grand
jury, and no such exception made to the ruling of the Court, then the
necessity of a record is done away with. Has any such thing occurred
in the present case? There is no suggestion, that there has; and, if
there had been, we should make the further answer, that there was a
time and place to have been heard upon it in this Court before going to
trial. Suppose, for instance, that the signature of the foreman was
wanting to the bill, or that some improper person had been drawn upon
the grand jury,-might not the defects have been pleaded in abatement
in this Court? We submit so; and further conceive, that this shows the
possible intent of the legislature, that the opportunity for correcting the
error need not exist in the lower Court; or, in other words, as I shall
presently submit more at length, that the whole agency of that Court in
the matter is ministerial.
So, of the proceedings in the Municipal Court after the finding of the
indictment, and before it is entered in this Court. Suppose the pris-
oner has any exception to take to the proceedings of the judge, clerk,
or sheriff,-may he not be heard upon them here? and without the need
of a record from below? '
But, as I shall have occasion to consider this subject somewhat in
reply to the next head of argument urged on behalf of the petition, viz;
that certain things should have been "adjudicated" by the Municipal
Court, as well as "recorded," I pass from the subject, with the remark,
that, besides the silence of the statute in regard to keeping and trans-
mitting a copy of record, we believe the universal practice throughout
the State, ever since capital indictments have been found in the Court
of Common Pleas and Municipal Court, has been coincident with that
which is objected to in the present instance, viz; the sending. up the
indictment with a certificate merely, and not in connection with a copy
of record. We even venture to question the necessity of keeping any
record in the Court below, for any purpose; unless in the case put,-of
rulings had, and exceptions taken. And though a record has been kept
in the present case, as is shown by the copy read in connection with the
petition, and though it furnishes a. complete answer, as we apprehend,
to many of the objections raised, yet we suggest that it is quite a matter
of supererogation.
I pass, then, to the reply to the second great objection urged for the
petition,-that there has been an omission here of adjudications by the
Municipal Court, in various particulars.
The most important one urged is that of omitting to fix a day cer-
tafm, when the indictment should be entered in this Court.
It is contended, that, by the terms of the statute, no other day of
entry is intended than the commencement of a regular term, or of a
distinct adjourned term, within the suggestions contained in the 'opin-
ion of the Court, in Commonwealth v. Carlisle, 7 Met. 467, which has been
cited; and as the indictment, in the present instance, was in fact entered
in this Court on the 30th of January, a day neither at the commencement
of a regular term nor of an adjourned term, that the Court acquired no
jurisdiction, and so that the proceedings have been erroneous through-
out.
Now, we submit, that nothing can be plainer than the words of the
statute, authorizing the entry during a current term: "At the Supreme
Judicial Court next to be holden in and for said county of Suffolk, or
at any intermediate time before the next term, when said Supreme
Judicial Court shall be in session," &c. The indictment being found in
the Municipal Court on the 26th of January, and the Supreme Judicial
Court being then in session, and its next regular term beginning on the
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