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848 TRIAL OF JOHN W. WEBSTER.
be entered at the Supreme Judicial Court next to be holden in and for
said county, or at any intermediate time when said Court shall be in
session in said county." But no such order of notice can be served until
an order upon which it is predicated is first made. That is to say, the
Court must first adjudicate when the indictment shall be entered, and
then the order may be made and served.
It cannot be the true construction of the statute, as has been urged
on the part of the Government, that the indictment is to be certified and
transmitted by the clerk, so that it may be entered in the Supreme
Judicial Court at the earliest possible day; for there is a discretion to be
exercised somewhere, that this shall be done at such a time as shall
best subserve the purposes of public justice, as well as protect the rights
of the respective parties. It is a question upon which the defendant,
as the party most deeply interested, has a right to be heard before its
final determination.
Chief Justice.-If the party be not in custody when the indictment is
found, what is to be the course of proceeding?
Mr. Merrick.-Process must issue for the arrest of the accused and
the indictment be continued from time to time in the Municipal Court,
until the arrest is effected; and,-if the arrest be not, made in season to
admit of the entry of the indictment at the next term of the Supreme
Judicial Court, the consequence must be, that, as there is no provision
for its entry at a later term, the indictipent will fail, and the Govern-
ment must commence proceedings anew.
Chief Justice.-Suppose no order should be made by the Municipal
Court, or that the indictment should not be certified and transmitted to
this Court,-could not this Court obtain cognizance and jurisdiction of
the case by proper process?
Mr. Merrick.-I hardly know how to answer. No doubt this Court
have a general authority to rectify the erroneous proceedings of inferior
tribunals, and may, at any time interfere to correct any irregularities
which may occur there. But if the preliminary proceedings in the
Municipal Court are a necessary pre-requisite to the jurisdiction of this
Court, as we contend that they are, then the prosecution must fail, unless
they are complied with.
Chief Justice.-Suppose an indictment found in the Municipal Court,
and a term or more elapses before the accused is apprehended,-from
which Court should process issue?
Mr. Merrick.-I do not see how the indictment could be transmitted
from the Municipal Court to this Court till the preliminary proceedings
of the statute had been complied with; and so, that this Court could have
any basis of proceeding till the indictment was before it.
Chief Justice.-In case the party was not in custody when the clerk
of the Municipal Court had certified and transmitted the indictment to
this Court, (supposing that to be the regular course,) I am not aware
that there is any such formality necessary as the transfer of custody of
the prisoner, when that shall be afterwards obtained.
Mr. Merrick.-I suppose a proper transfer of the indictment would
carry with it this jurisdiction over the crimiiral.
Attorney General.-Will my brother allow me to put to him this
supposition?-Suppose the statute had only named the next term of the
Supreme Judicial Court as the time of entry of the indictment, and then
the clerk of the Municipal Court had omitted to make the entry in proper
season,-is there any doubt that this Court could remove the indictment
by certiorari, and take further cognizance of the case?
Mr. Merrick.-I am not prepared to say that the proceeding would be
allowable. There is still the difficulty of the statute pre-requisite.
Chief Justice.-I do not now remember any other provision for such
a course as that suggested by the Attorney General, than the general
enactment in the 81st chapter of the Revised Statutes for the super-
visory jurisdiction of this Court over the lower courts.
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