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TRIAL OF JOHN W. WEBSTER. 355
and, whether complied with or not, it does not affect the jurisdiction of
this Court.
6 and 7. The provision that the clerk of the Municipal Court shall
give notice to the Chief Justice of the Supreme Judicial Court, and that
the clerk shall transmit the original indictment to the Supreme Judicial
Court, are not deemed to be conditions on which alone the jurisdiction
of the Supreme Judicial Court will attach.
We are of opinion, that, if any of these requirements are essential to
the jurisdiction, it is the last above-named, requiring the clerk to return
the original indictment into this Court; but, if it is so, it duly appears
that this was done in the present case.
It is further insisted that the officer whose duty it is to make the entry
must produce a record from the Municipal Court, showing that the five
things first above-named have been done.
I am not quite certain that the learned counsel meant to be under-
stood by "the officer whose duty," &c., the Attorney General, or public
prosecutor. If so, we think it is a mistake. The Attorney General does
not make the entry: The clerk of the Municipal Court is to transmit,
&c., and then this Court has, eo instanti, jurisdiction. It is to be consid-
ered, that the Municipal Court is a department of the Court of Common
Pleas, and that in all other counties to which the former act serving as
a model for this, in most respects, applies, the clerk of the Court of
Common Pleas and of the Supreme Judicial Court is one and the same
officer; and that, in performing his duty of transmitting the original
indictment, it does not go out of his official custody, but only from one
side of his office to the other.
But when it is said that a record must be produced, &c., the answer
is, that the statute requiring these things to be done is merely directory;
and that neither the acts themselves, nor a production of a record of
them, is necessary to the jurisdiction of this Court.
It was argued on the part of the defendant, that he was not too late
in these exceptions, and could not be justly taken to have waived them.
We have not thought it necessary to consider this much, because, if
the Court had no jurisdiction, no consent, upon which the doctrine of
estoppel and waiver are founded, could give jurisdiction. We have con-
sidered the objections, therefore, so far as they may be deemed pre-
requisites to jurisdiction, without any reference to any supposed waiver.
But when the Court have full jurisdiction, then, if some provision made
for the benefit of the accused has not been complied with, if he has made
no objection at the time on that ground. he may with great propriety be
held to have waived it; because, had he made his objection in season,
the deficiency might have been supplied. But we perceive no such
defect, and no occasion to inquire whether any rights have been waived.
All the requirements of the law intended for the benefit of the accused
appear to have been formally and substantially complied with.
The case of Com. v. Hardy, 2 Mass. 303, was cited to show that a
Court would set aside a verdict, when they had no jurisdiction. It is,
undoubtedly, a good authority to that point. But, as to what might be
considered sufficient to show want of jurisdiction, it is wholly different
from the present. It was held, in that case, under the statute of 1804,
c. 105, requiring all capital trials to be holden before a full Court, that
the arraignment is an essential part of the trial; and that, when the
arraignment was before one judge, there was no issue of which the
Court had jurisdiction. This is, no doubt, a correct decision, as the
law then stood. When the party had pleaded guilty, before one judge,
if properly arraigned, he might and must have been sentenced on such
conviction; as he must now, since that jurisdiction has been conferred
on the Court when held by one judge. To show the importance of an
arraignment, a case may be stated which occurred in this country but
a few years before the case of Hardy, where one indicted capitally for
burglary, on arraignment pleaded guilty. The Court declined to receive
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