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346 TRIAL OF JOHN W. WEBSTER.
We maintain, therefore, that no question of jurisdiction arises in this
case.
But, suppose the alleged errors to exist as contended for on the other
side, it does not follow that this Court, in the exercise of its judicial
discretion, will grant this application,-no prejudice having arisen there-
from to the prisoner. See Lady Herbert's Case, 11 Mod. 119. Bacon's
Ab. Trial, Q. 4 and 6. 3 Wood, 152. 3 Har. and McHen. 101. Amherst
v. Hadley, 1 Pick, 41, 42. People v. Wiley, 3 Hill, N. Y. 214. Shorter v.
The People, 2 Comst. 193.
Besides, the proceedings in this case have strictly followed the invari-
able practice in this county, in numerous cases which have arisen since
the enactment of the statute in some of which the trials have resulted
in convictions and executions; and in one of which, the case of Com.
v. Peter York, the conviction was sustained after a second hearing upon
certain questions of law before the full Bench. It is respectfully sub-
mitted, that a uniform course of practice and procedure upon a statute
like this is entitled to great consideration from the Court, in giving to
its
provisions a judicial construction.
If the Court should be of opinion that the error alleged in this appli-
cation do not touch the question of jurisdiction, it is manifest that it is
now too late for the prisoner to urge them as grounds upon which the
judgment should be reversed. The case of Hardy has been relied upon;
the unfortunate remark of the distinguished judge who pronounced the
opinion in that case that "a man may quibble for his life," is invoked,
as it frequently has been before by counsel, to give importance to trifing
exceptions and induce a sacrifice of the substance of justice to its
shadow.
What was really decided in Hardy's case furnishes no authority for the
argument attempted to be maintained in this. And as to the dictum
before referred to in the opinion of the Court, with the profoundest rever-
ence for the wisdom of the great magistrate who uttered it, I respectfully
maintain that "quibbling," anywhere, or for any purpose, is neither
decorous, respectable, nor justifiable; least of all, in a grave discussion
in a Court of Law. I rather defer to the sentiment expressed by another
great judge, as to the danger of yielding too much to mere technical
objections,-and which may be quoted here as an apt commentary upon
these proceedings, and as indicating a safe rule by which to be governed
in the consideration of the points that have been raised. Says Lord
Hale, (2 Hale P. C. 193,) "In favor of life, great strictnesses have been
in all times required in points of indictments; and the truth is, that it
has grown to be a blemish and inconvenience in the law, and the admin-
istration thereof. More offenders escape by the over easy ear given
to exceptions in indictments, than by their own innocence; and, many
times, gross murders burglaries, robberies, and other heinous and cry-
ing offences, escape by these unseemly niceties, to the reproach of the
law, to the shame of the Government, and to the encouragement of vil-
lainy and the dishonor of God."
The question whether there has been error in the sentence is
decisively answered by my associate, in the suggestion, that, as the
term is still open, all that matter is now within the control of the Court.
I leave it with a single remark,-that, whatever may be the literal
phraseology of the clerk's record in this respect, the sentence, as pro-
nounced was in the customary formula which the Court have invariably
used in this Commonwealth; and further, that as to the place of execu-
tion whether the determination of it is confided by law to the Court,
the Executive, or the Sheriff, it is quite clear that the prisoner has no
election in the matter, and that it cannot therefore be urged by him as
a ground of error.
Under the decisions of this Court, no error in a sentence can be cor-
rected. The Court can only declare the sentence to be erroneous and
discharge the prisoner. Shepherd's case, 2 Met. 419. It is for Your
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