COMMONWEALTH vs. WILLIAM HARDY.

THATCHER . The answer to the question, whether one judge is competent to arraign a prisoner who is indicted for a capital offence, will decide this motion. For if the proceeding before his Honor, Judge Sedgwick, was legal, the prisoner has nothing to show why the sentence of the law should not be passed upon him. But if that proceeding was illegal, he then contends that, nothing done at that ceremony being of any validity, no issue has been joined upon the indictment between the commonwealth and himself, and consequently there has been no trial, which necessarily implies an issue joined.

The intention of the legislature that the arraignment, and every other proceeding for a capital offence, subsequent to the finding of the indictment, should be had exclusively before a Court holden by three or more of the judges, may be inferred, first, from the plain and obvious import of the words of the act, and, secondly, from the nature and importance of the arraignment.

I. The words of the act (1) are, "All indictments which may be found for any capital offence shall be heard, tried, and determined, exclusively in the Courts which are to be holden, pursuant to the second section hereof, by three or more of the said justices. And whenever three or more of the justices aforesaid shall attend, at any Court to be holden by virtue of the third section hereof, the said justices attending and holding such Court shall have cognizance of all matters and things whatsoever, whereof they may have cognizance at any Court to be holden by virtue of the second section of this act."

These words are the commission to the justices of this Court to proceed to try a cause which affects the life of a citizen. They confer the necessary authority for that purpose as much as the commission under the great seal, which is issued to a peer of the realm in Great Britain, authorises him to act as lord high steward, at the trial of a peer, upon a capital accusation. They declare what shall be a competent tribunal, and consequently they exclude every other.

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The word "heard" may apply generally to the hearing of a cause from the beginning to the end of it. It signifies a judicial hearing of the matter by a court having authority to try and determine it. Whenever a judge is, by his commission, authorized to hear a matter, it is intended a hearing according to the law and custom of the land. The hearing by an incompetent tribunal is but an idle ceremony. Whoever is prejudiced by the act of such a tribunal is entitled to his action for redress. If, by virtue of the command of such a tribunal, a person should be executed and suffer death, it is "a high misdemeanor in the judges so proceeding, and little (if any thing) short of murder in them all." [Note p305-1]

But the word in this place particularly refers to the arraignment. Every word in a statute is presumed to have some meaning; and it is therefore a rule, that every word shall have that force given to it which is agreeable to the intention of the legislature. Now, if the word "heard" does not mean, in this place, the judicial hearing of an indictment read to the prisoner, and the receiving of his plea or answer at the arraignment, it is nugatory, because the following words, "tried and determined," comprehend every thing subsequent to the arraignment. The commission to Sir Thomas White and others, in the case of Sir Robert Dudley, who was indicted of treason, authorizes them to receive the indictment which had been found against him, to call before them the said Sir Robert Dudley, and to hear and examine him thereupon, and to compel him to answer, and at due end to try, determine, and adjudge." [Note p305-2] "Hear," in this case, clearly refers to the arraignment.

If the legislature had used only the words "tried and determined," the arraignment before one judge would be contrary to the spirit of the act. For though a trial, in technical propriety, means the decision of an issue which has been joined, yet the Court is bound to give such construction to the act as will enlarge the protection of the citizen who is accused of a capital offence; provided such construction is not contrary to good sense, and is supported by authorities.

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The expression, "the trial upon the arraignment," is found in the third Institute; from which it may be inferred that Lord Coke considered, either that the arraignment was part of the trial, or that the ceremony was, from its importance, entitled to be styled a trial.

In the statute of 7 Will. 111, c. 3, regulating trials in cases of treason and misprision of treason, it is provided that the accused shall have a true copy of the whole indictment delivered to him "five days, at the least, before he shall be tried for the same," whereby to enable him to advise with counsel thereupon, to plead, and make his defence. The construction which has been given to this provision is, that the prisoner shall have the copy of the indictment five days previous to the arraignment, for this is his time for pleading. [Note p306-1] From these reasons it is inferred that, according to the plain and obvious signification of the words of the statute, the arraignment, as well as every other stage of the proceedings in capital cases, should be before three judges at the least.

II. The intention of the legislature, relative to the point now before the Court, may be inferred from a consideration of the nature and importance of the arraignment.

"The arraignment of the prisoner," according to Lord Coke, "is to take order that he appear, and, for the certainty of the person, to hold up his hand, and to plead a sufficient plea to the indictment or other record." [Note p306-2] He is called to the bar by his name, freed from the shackles, that his mind may be at liberty to consider the accusation brought against him, and what answer he ought to make to it. Having answered to his name, and owned himself the person intended, the indictment is read to him, and, if necessary, translated into his own language, that he may perfectly understand it. He is then required to plead to the indictment, and if he pleads not guilty, to say in what manner he will be tried. The Court assign him counsel, to assist him in his defence, and to enable him to avail himself of every advantage to which he is by law entitled.

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If the prisoner voluntarily confesses the fact, the Court has nothing to do but to award judgment. [Note p307-1]

He may, at this stage, or any other, move to quash the indictment, on showing a defect in the choice of the grand jury; for he cannot be compelled to plead to an indictment which was not found by a competent authority. At the arraignment of William Thomas for high treason, a question was made respecting the qualification of the jurors by whom he was to be tried, and that question was decided at that time. [Note p307-2]

Suppose a prisoner indicted for high treason, committed without the limits of the state, should, when brought up to be arraigned, apply for time to petition the Supreme Executive that he may be tried in a different county, and should satisfy the Court that he could not have a fair trial in the county where he had been indicted. [Note p307-3] The provision of the statute, that he shall be tried in the county where the supreme executive shall order, was intended for the safety of the citizen, as well as for the security of the state. It was to insure him an impartial trial. Such a question might arise, and it would require great deliberation before the Court would incline, under certain circumstances, to refuse the application.

A prisoner may, at his arraignment, except to the jurisdiction of the Court, or he may plead in abatement, or in bar, or he may demur to the indictment, either generally or for special reasons. He may object to the counsel assigned him by the Court. He may offer a frivolous, absurd, equivocal, or informal plea, which the Court may, and ought, forthwith to reject, that the public justice may not fall into contempt. Part of the arraignment consists in the prisoner's pleading a sufficient plea. It is incumbent, therefore, on the Court to judge of the sufficiency of the plea, by which is intended, whether it is sufficient to proceed to trial upon.

Now, if it is true that one judge may sit at the arraignment of a prisoner, and receive his plea, it follows that he may do

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every thing which is incident to the arraignment. Otherwise, this absurdity will follow, that the judge must sit at such a time in silence, and with no more authority than any other spectator of the scene. It is manifest, then, that questions of great magnitude, requiring the collective wisdom of the Court, may arise at the arraignment of a prisoner; and it may fairly be inferred that it was not the intention of the legislature to suffer this ceremony before one judge, and especially when it is considered that there is no remedy, in case he should err in his judgment.

An indictment for a capital crime may be found at any term of the Court; but when it is found at a term holden by one justice, it is the duty of such justice either to order the same to be continued to the next term, or to convene a competent number of his brethren to proceed on it.

In England a peer may be indicted for treason or felony, by jurors in any county where the offence was committed. But the court at which the indictment is found has no authority to proceed on the same. It is the duty of the judge to certify it to the king, who thereupon issues his commission to some peer of the realm, to be, pro hac vice, Steward of England, giving him authority to receive the indictment, &c., and to proceed thereon according to the law and custom of England. [Note p308-1] There is no instance, in which a peer was arraigned before the King's Bench, or before commissioners of Oyer and Terminer, where the indictment was found, and before the same was certified to the King. It is believed that such a proceeding would be invalid and erroneous, because in all cases a prisoner ought to be arraigned at the same bar where he is to be tried: and it is therefore inferred that the arraignment of the prisoner, in this case, was contrary to the spirit and meaning of the statute.

In consideration of the magnitude of this question, affecting the administration of the public justice, and the life of a fellow being, the counsel for the prisoner have examined it with some minuteness, and with frequent recurrence to the authorities. They do not apprehend that, in submitting this motion

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to the Court, they shall incur the suspicion of attempting to resist or frustrate the public justice, inasmuch as they have a duty to perform both to their client and to their country. Having serious doubts of the legality of the proceedings, they would have been wanting in the plainest principles of duty if they had failed to spread those doubts before the Court, for their advisement. This is a case from which "it appeareth how necessary it is for Judges, especially in cases of treason and felony, to look into the whole record, and the proceedings thereupon, before they give judgment, lest they give an unlawful and unjust judgment, by means whereof the party may lose his life." [Note p309-1] If there should exist in the minds of the Court a doubt respecting the legality of the proceedings, that doubt should be suffered to operate in favor of the prisoner, in the same manner as the jury would have been bound to acquit him, had they entertained a doubt of his guilt.

In establishing a precedent for trials of capital offences, the greater caution should be used, that it may not be quoted by evil men, in future disastrous periods of the commonwealth, to abridge the citizens of their rights. "Omnia mala exempla ex bonis initiis orta sunt: sed ubi imperium ad ignaros aut minus bonos pervenit, novum illud exemplum ab dignis et idoneis ad indignos et non idoneos transfertur." [Note p309-2] This caution was addressed by Julius Caesar to the Roman Senate, when they were deliberating on the punishment to be inflicted on the profligate associates, in the conspiracy of Catiline, to destroy the capitol and to overturn the government. That illustrious body were cautioned not to suffer their horror at the crime, and their detestation of the criminals, to lead them, in pronouncing judgment, to overstep the bounds of the ancient laws of the empire. And indeed there can be no greater or more sensible demonstration that we live under the law, and that we enjoy the highest state of liberty, than to see the sword of justice drop suddenly from the hand which is ready to inflict the punishment of death on the most miserable of human beings, because it is not nerved by the sinews of the law.

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All the proceedings against the prisoner have been before wise and impartial judges, and before as fair and intelligent a jury as is consistent with the human condition. He has suffered no injury. But it is far better that the vilest offender should escape, even though his "offence is rank and smells to heaven," than that one of those forms should be violated which the wisdom of the law has provided for the safety of the citizens.

The Attorney General observed, that he did not think it necessary for him to follow the prisoner's counsel through the elaborate argument they had just heard, nor to remark on the various authorities that had been cited in support of the motion before the Court. If they had weight in the minds of the Court, he did not wish to lessen that weight.

The motion is grounded on a supposition that the prisoner was not arraigned previous to his trial. There can be no doubt that an arraignment is necessary; and if the prisoner has not been arraigned, it will not be contended, on the part of the government, that he has had a legal trial. This point is largely treated of in Hale's History of the Pleas of the Crown. [Note p310-1] Blackstone adopts Hale's ideas, and says, [Note p310-2] "to arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment." The form of the tribunal, before which the prisoner in this case was arraigned, must be learned from the records of the last term. By them it appears, that the Court was holden before the Chief Justice and three other justices. On the back of the indictment is a memorandum, that the arraignment was before T. Sedgwick, Esq., one of the justices, and that the trial was before the Chief Justice and two other Justices.

The decision of the question before the Court will depend on the true construction of the statute of March 15, 1805. By the sixth section of this statute, all indictments which may be found for any capital offence shall be heard, tried, and determined, exclusively in the Courts to be holden pursuant to the second section. It is afterwards provided that, whenever three

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or more of the justices shall attend at any Court to be holden by virtue of the third section, they shall have cognizance of all matters whereof they may have cognizance at any Court to be holden by virtue of the second section. Now, if arraignment is par of the trial, it is conceded that the prisoner has not been legally arraigned.

But if it is only one of the preparatory steps necessary, by the forms of our law, to precede the final hearing and trial, it may well be insisted that the prisoner has been duly and legally arraigned, tried, and convicted. Great importance has been endeavored to be given to this ceremony. If, however, it is compared with other parts of the preparatory process, which are indisputably within the power of a single judge, its consequence will in some degree diminish. One judge determines who are duly returned as grand jurors: one judge empanels the grand jury, who are to inquire into capital offences, and without whose presentment no prisoner can be brought to the bar: one judge, only, charges them -- by which is intended, the defining all offences, capital as well as others, of which they are to inquire, and which they are sworn to present according to such charge. It would seem that these powers and duties were of much more serious importance to a prisoner than the mere ceremony of reading the indictment to him, and demanding of him what answer he makes to the charge contained in it. And it may be argued that the legislature would not have conferred these greater powers on a single judge, and yet have cautiously withheld from him the lesser; and that one judge has this authority to arraign a prisoner, or he has not authority to empanel and charge a grand jury, as to capital crimes. The arraignment is an incipient part of the process; so is the issuing the venires, and so are the other previous proceedings which have been mentioned. If the words "heard, tried, and determined," include the arraignment, why do they not also include the other preparatory steps? If they do, it follows that every part of the process, in a capital case, had in a Court holden pursuant to the third section of the act, will be erroneous, unless it appears by the record that three justices were present at each step; at the empaneling and charging the grand jury, at receiving and

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filing the indictment, as well as at the arraignment, trial, and sentencing, of the prisoner.

What is an indictment for a capital offence? It must be a bill found at a court of competent jurisdiction. One found at a Court of Sessions would be a mere nullity. The presumption here is that, at a Court holden pursuant to the third section, one judge only is present, unless the contrary appears from the record.

It is apparent from the language of the act, which by the way is far from being technical, the legislature, by the words "heard and tried," intended a trial after an issue to the country should be joined; and by the word "determined," meant the closing stage of the process. The words have an evident analogy to the French words so familiar in our law, "oyer and terminer."

But if there is a doubt in the case, the life of the prisoner ought not to be taken: the indictment should be quashed, as an inquest taken coram non judice; and the law will be settled that this Court cannot, without the actual attendance of three Justices, empanel a grand jury to inquire of capital offences; and that the Court must be so holden so long as the grand jury are in session.

G. Blake, in reply, said that the ample discussion which the question had undergone left very little for him to add. We contend that this arraignment was before a Court having no jurisdiction of the offence, and that, in consequence hereof, the prisoner has had no legal trial. Even allowing the arraignment not to be included in the words hearing, trying, and determining, it is believed to be out of the jurisdiction of a single judge. By the statute of July 3, 1782, entitled "An Act for establishing a Supreme Judicial Court within this Commonwealth," the Court was to consist of one Chief Justice and four other justices. Three of them were necessary to constitute a Court for any purpose whatever. By the statute of February 28, 1804, one justice might hold certain terms of the Court, and it was expressly provided that, amongst other things, all indictments for any capital offence depending before the Court at any such term should be continued, of course, unless three justices should be present. From the word "depending,"

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used in this statute, it might be fairly inferred that such an indictment might be found at such a term of the Court. But this statute is repealed by that of March 15, 1805, in which last there is no word from which such inference can be drawn. This authority of a single judge, being in derogation of established usage and the habits and prejudices of the country, ought to receive a strict construction.

By the sixth section of the act last cited, after a provision that all indictments for capital offences, &c., shall be heard, tried, and determined, exclusively in the Courts to be holden pursuant to the second section, it is further declared, that all other processes, matters, and things, civil and criminal, whereof the Supreme Judicial Court hath heretofore had cognizance, may be heard, &c., at the Court to be holden by one justice. These other actions, processes, matters, and things, are set in opposition to those mentioned in the former part of the section, and cannot therefore include any stage of a prosecution for a capital offence. Were it not, then, for the jurisdiction given by the last clause of the section to the Court regularly to be holden by one justice, when three Justices shall attend we contend that a bill of indictment for a capital offence could no be found but at the term holden pursuant to the second section. But this jurisdiction is expressly limited and confined to the period of time during which the three justices shall attend. From hence we think it follows conclusively, that one justice, sitting alone in Court, has no jurisdiction whatever, in any matter relating to the prosecution of a capital offence.

But without relying on this construction, we contend that, giving the statute the most liberal interpretation, the arraignment must be included in the word "heard," where the words "heard and tried" are both used. If "heard and determined" had been alone used, the hearing would include the arraignment and trial. Trial here means something posterior to the arraignment. To interpret a statute, it is both natural and proper to inquire what a wise legislature may be expected to do, were they legislating on the subject-matter as res integra. By this statute they have prohibited one judge to sit in the trial of a

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capital offender, and it is but making them consistent with themselves to infer that they did not intend to give him power to arraign, which involves in it so many points of importance. No imaginable purpose could be answered by another construction: there would not even be the saving of time. There is not a single instance in our laws, where a court has power to arraign, without authority to try and determine. The statute ought not, if possible to avoid it, to be construed as making a provision in nothing analogous to the course of judicial proceedings in our own country, or in that from which we derive our institutions of jurisprudence. But there are no doubtful words in this statute, and there is, therefore, no need of a labored construction. The words "hear, try, and determine," are plain and intelligible and need no interpretation. They apply respectively to the several steps of the process and have each of them their proper and separate force and effect.

The opinion of the Court was afterwards delivered by

PARSONS, C. J. At the last term of this Court, the grand jury indicted the prisoner at the bar of the crime of murder. When the indictment was delivered to the Court, one judge only was present, and the prisoner, then in custody of the sheriff, was brought to the bar, and, upon the motion of the Attorney General, was arraigned upon the indictment. He pleaded not guilty, and for trial put himself on the country. The plea was recorded, and, at his request, counsel were assigned him, and he was remanded. At a subsequent day of that term, three judges were present in Court to proceed upon the indictment. The prisoner being brought to the bar, the clerk was directed to arraign him, but he informed the Court that the prisoner had been arraigned, and had pleaded not guilty, and put himself upon the country. No further inquiry was made, but the clerk was directed to call the jury. The prisoner made no objection to proceeding, and, after challenging a number of the jurors, a jury was empanelled, who, after a full hearing of the prisoner's defence, found him guilty. When the prisoner was brought up to receive sentence, his counsel excepted to the verdict, because there was no issue for the jury to try, as only one Judge was present when he was put to plead and his plea was recorded.

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To support the exception, the counsel relied on the sixth section of the statute of 15th March, 1805, c. 59, which provides that all indictments for capital offences shall be heard, tried, and determined, exclusively when three or more justices are present, and they insisted that the arraignment of the prisoner was included in these words. At this term, the exception has been argued by the Attorney General for the commonwealth, and by the prisoner's counsel, and it remains with the Court to decide on its sufficiency.

From the nature of the question, we cannot expect to find any adjudged cases materially to assist us, as it is a question of construction of the statutes of the commonwealth erecting this Court, and regulating its proceedings. The Court was erected in 1782, with very large, and indeed plenary, jurisdiction in all cases, civil and criminal; but it could not be holden, nor could any of its jurisdiction be exercised, unless three Judges were present. Various attempts have since been made by the legislature to regulate the exercise of the jurisdiction. The last attempt was by the statute just mentioned. The second section provides for the holding certain terms of the Court, at the times and places there mentioned, by three or more of the justices; and a Court lawfully holden, pursuant to this section, might have proceeded to exercise all its jurisdiction without any further provision. The third section provides for the holding of such other terms of the Court, at the times and places there mentioned, by any one of the justices. The same observation may be made, that the Court, lawfully holden, pursuant to this section, might exercise all its jurisdiction, if the statute had contained no clauses of restriction. Otherwise, a Court of general jurisdiction might, when lawfully holden, be without any power whatever.

This indictment was returned into Court, and the arraignment and trial had, at a term of the Court holden pursuant to this third section of the act. Let us, therefore, examine what restrictions were imposed, at this term, on the exercise of the general jurisdiction of the Court.

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By the sixth section of the statute, the Court at this term, unless three justices were present, was not competent to exercise any part of the jurisdiction which, by the same section, was exclusively to be exercised at the terms holden pursuant to the second section. This jurisdiction, thus exclusively to be exercised, comprises, among other things, the hearing, trying, and determining, all indictments for capital offences; but the inquiry by the grand jury into all offences, capital and not capital, is not within the restriction. It is therefore extremely clear that an indictment for any capital offence may be legally found, returned into Court, and filed of record, at any term of this Court when holden by one Judge only. But we are all of opinion that the power of hearing, trying, and determining, an indictment for a capital offence, includes a power to arraign a prisoner, and to record his plea. It is therefore one of the powers which the Court, when holden by one Judge, is restrained from exercising. Consequently, the arraignment of the prisoner, and his plea, were not coram judice. It appears that it was the intent of the statute that a prisoner, indicted capitally, should not be put on his defence unless three Justices, at the least, were present. If one Judge could put him to answer and record his plea, he might record his plea of guilty, in which case a prisoner would stand capitally convicted in a Court holden by one Judge; or in the assignment of counsel by one Judge, it may be supposed that he may injudiciously assign such counsel as might materially affect the prisoner's defence.

No possible inconvenience has resulted to the prisoner from the proceedings in this case. His plea, that was recorded, was the most favorable plea he could have pleaded; and when the jury was called, he made no objection to proceed in the trial of his issue, but assented, by making his challenges. But an objection founded in a want of jurisdiction, however small, and from which no inconvenience has arisen, is not, in capital cases, taken away by any implied assent. If even quibbling is at any time justifiable, certainly a man may quibble for his life. We do not inquire into the wisdom of the statute in this case, but, being satisfied as to its construction, we must bow to the supremacy of the law.

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Let the plea and verdict be set aside, and hereafter holden void and of no effect whatever.

Immediately after the opinion of the Court was thus delivered, the Attorney General moved that the prisoner be arraigned upon the same indictment. The Court assigned a time for the consideration of the motion; at which time, his counsel not opposing it, he was arraigned and pleaded not guilty. He was afterwards tried and acquitted.

=============

In capital trials the prisoner may give his general character in evidence, after which the prosecutor may call witnesses to disprove such testimony.

At the first trial of Hardy, the prisoner's counsel offered some evidence as to his general character. The Solicitor General objected to its being received, on the ground that it had been heretofore uniformly rejected upon criminal trials in this state. The prisoner's counsel urged that such testimony was calculated to have great weight with a jury in all doubtful cases; whether the doubt arises from the nature of the testimony, or from the character of the witnesses for the prosecution. If such testimony is rejected, it follows, that a man's good name will cease to be of value to him in a case, in which it ought to be inestimable. It is now the practice of the English courts to admit testimony of general character, to be offered by every person on trial, even for a misdemeaner. Surely it is proper that the practice here should be changed, at least, in cases where the life of a citizen is in question.

The court unanimously admitted the evidence.

PARSONS, C. J. said, that he was of opinion that a prisoner ought to be permitted to give in evidence his general character in all cases: for he did not see why it should be evidence in a capital case, and not in cases of an inferior degree. In doubtful cases, a good general character, clearly established, ought to have weight with a jury; but it ought not to prevail against the positive testimony of credible witnesses. But it is not competent for the prosecutor to

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go into this enquiry, until the defendant has voluntarily put his character in issue, and in such case there can be no examination as to particular facts. [Note p318-1]

SEWALL and PARKER, Justices, said, that they were not prepared to say that testimony of general character should be admitted in behalf of the defendant in all criminal prosecutions; but they were clearly of opinion that it might be admitted in capital cases, in favor of life.