The opinion of the court was delivered by
Woodward, J.
The plaintiff in error, William John Clark, having been convicted and sentenced for murder in the first degree, in the Court of Oyer and Terminer of Montour county, removes the record into this court,'and assigns four several errors, which are to he considered in order.
The first and second errors may be considered together, as they both relate to the refusal of the court to discharge Clark under the provisions of the third section of the Habeas Corpus Act of 18 th February, 1785, after he had been held in confinement two terms without indictment or trial.
The first motion for his discharge on this ground was made on. the 24th December, 1857, which the court on the same day denied. Then again, on the 16th February, 1858, when he was arraigned, he put in a written refusal to plead on two grounds, one of which was this confinement for two terms and more without trial, although he was ready for trial at both of the terms of court which had intervened. The court again refused to discharge him, and directed a plea of not guilty to be entered for him.
These two applications for discharge were essentially habeas corpus proceedings, though not such in form. They were grounded upon the habeas corpus statute, and the power invoked was that which the court exercises under the writ of habeas corpus, and in no other manner. Yiewed in this light, they were distinct and separate from the proceedings which are brought up by our writ of error. They form no part of this record, and are not necessarily or regularly brought up with it. If the judgment of the court in a habeas corpus case were reviewable here, which it is not except on another writ of habeas corpus issued out of this court, the writ of error which we allowed to the prisoner was not directed to that judgment and did not bring it up.
It is perfectly manifest, therefore, that the question raised by the first two assignments of error is not regularly here, and we would be quite justifiable in declining to express any opinion upon it.
Considering, however, that the prisoner’s life is at stake, and that his counsel have enabled us to form an opinion on the point by presenting all the necessary documents, and accompanying them with an able and instructive argument, we will, for their satisfaction, allude briefly to the ground on which we think the learned judge of the Oyer and Terminer was right in refusing to discharge the prisoner from confinement. The Act of 18th Feb[135]*135ruary, 1785, in its title and preamble, shows that it was designed to prevent “ wrongful” restraints of liberty. The third section, after providing that any person committed for treason or felony, and not tried some time in the next term, session of Oyer and Terminer, general jail delivery, or other court after such commitment, shall, upon the last day of the term, sessions, or court be set at liberty upon bail, goes on to say: “ and if such prisoner shall not be indicted and tried the second term, sessions, or court after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from imprisonment.” Now, the evident construction of this section is, that the “term, session, or court” intended by the act is a legally constituted and competent term, session, or court. It meant that a prosecutor should not allow two such terms or sessions of the court, at each of which the defendant might be legally indicted or tried, to elapse without bringing on the prosecution. But' to constitute a competent court, several things are necessary: the presence of the president judge and jurors, grand and petit, drawn, summoned, and impannelled according to law. Time is another legal requisite. Many president judges are required to hold Courts of Oyer and Terminer in different counties on certain prefixed days; and if the number or duration of trials in one county prevent him from trying all the cases before the law requires his presence elsewhere, the prisoners, whom it has been impossible to try, are not to take advantage of this ineffectual term to claim their release. It is only after two terms, at both of which it was possible to indict and try them according to law, that they become entitled to a discharge. The statute was made to restrain the malice and oppression of prosecutors, and to relieve wrongful imprisonment; not to embarrass the administration of the criminal law; not to relieve righteous imprisonment, and to defeat public justice. Such was the construction which this section received from this court in the case of the Commonwealth v. The Sheriff and Jailer of Allegheny County, 16 S. & R. 304, wherein it was held that a prisoner indicted for aiding and abetting another to commit murder, and not tried at the second term, was not entitled to his discharge on habeas corpus when proceedings to outlawry against the principal had been commenced without delay, but there had not been time to finish them. The language of Judge Todd, speaking for the whole court, was very much in point: “ What, then,” said he, “ was the third section of the act intended to provide against ? I think it was intended to provide against the abuse of procrastinated trial, to provide not only against the malice of the prosecutor, and against his negligence, against all Ms delays with cause or without cause, against every possible act or want of action of [136]*136the prosecutor; but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself.”
The only authority invoked against this doctrine is an unreasoned judgment of the Common Pleas of Philadelphia, in 1810, reported in 1 Brown 135, which scarcely deserves to be mentioned.
If, then, this prisoner, instead of appealing to the court as upon habeas corpus, had pleaded his new trial at the September and December Terms which elapsed after his full commitment, and thus had brought the question upon the present record, it could not have availed him. It may be well doubted whether upon demurrer such a plea would not have been set aside as wholly insufficient to bar the prosecution, but it is certain the plea would have been fully answered by a replication that no legal panel of jurors had been summoned at these terms. And if to such a replication the defendant had demurred, judgment must inevitably have gone against him, for the delay would have been attributable to the law itself. A panel of jurors, constituted according to law, was as necessary an ingredient of a competent court as the president judge himself; and delay in constituting it was as truly the law’s delay as that which is caused by the necessary forms of outlawry.
It is no answer to urge that the sheriff and commissioners, who were the officers of the law, caused the delay by not drawing and summoning jurors aright. The statute which the prisoner invokes was not designed to give him this benefit of official negligence. As a member of society he was represented by those officers ; and when he entered upon a course of crime, and placed himself in antagonism to society, he assumed the risk of their performing their duties so faithfully as to speed the penalty. It seems to his advantage that they did not — but to his advantage only in giving him more time for repentance — not as furnishing grounds for his discharge.
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The opinion of the court was delivered by
Woodward, J.
The plaintiff in error, William John Clark, having been convicted and sentenced for murder in the first degree, in the Court of Oyer and Terminer of Montour county, removes the record into this court,'and assigns four several errors, which are to he considered in order.
The first and second errors may be considered together, as they both relate to the refusal of the court to discharge Clark under the provisions of the third section of the Habeas Corpus Act of 18 th February, 1785, after he had been held in confinement two terms without indictment or trial.
The first motion for his discharge on this ground was made on. the 24th December, 1857, which the court on the same day denied. Then again, on the 16th February, 1858, when he was arraigned, he put in a written refusal to plead on two grounds, one of which was this confinement for two terms and more without trial, although he was ready for trial at both of the terms of court which had intervened. The court again refused to discharge him, and directed a plea of not guilty to be entered for him.
These two applications for discharge were essentially habeas corpus proceedings, though not such in form. They were grounded upon the habeas corpus statute, and the power invoked was that which the court exercises under the writ of habeas corpus, and in no other manner. Yiewed in this light, they were distinct and separate from the proceedings which are brought up by our writ of error. They form no part of this record, and are not necessarily or regularly brought up with it. If the judgment of the court in a habeas corpus case were reviewable here, which it is not except on another writ of habeas corpus issued out of this court, the writ of error which we allowed to the prisoner was not directed to that judgment and did not bring it up.
It is perfectly manifest, therefore, that the question raised by the first two assignments of error is not regularly here, and we would be quite justifiable in declining to express any opinion upon it.
Considering, however, that the prisoner’s life is at stake, and that his counsel have enabled us to form an opinion on the point by presenting all the necessary documents, and accompanying them with an able and instructive argument, we will, for their satisfaction, allude briefly to the ground on which we think the learned judge of the Oyer and Terminer was right in refusing to discharge the prisoner from confinement. The Act of 18th Feb[135]*135ruary, 1785, in its title and preamble, shows that it was designed to prevent “ wrongful” restraints of liberty. The third section, after providing that any person committed for treason or felony, and not tried some time in the next term, session of Oyer and Terminer, general jail delivery, or other court after such commitment, shall, upon the last day of the term, sessions, or court be set at liberty upon bail, goes on to say: “ and if such prisoner shall not be indicted and tried the second term, sessions, or court after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from imprisonment.” Now, the evident construction of this section is, that the “term, session, or court” intended by the act is a legally constituted and competent term, session, or court. It meant that a prosecutor should not allow two such terms or sessions of the court, at each of which the defendant might be legally indicted or tried, to elapse without bringing on the prosecution. But' to constitute a competent court, several things are necessary: the presence of the president judge and jurors, grand and petit, drawn, summoned, and impannelled according to law. Time is another legal requisite. Many president judges are required to hold Courts of Oyer and Terminer in different counties on certain prefixed days; and if the number or duration of trials in one county prevent him from trying all the cases before the law requires his presence elsewhere, the prisoners, whom it has been impossible to try, are not to take advantage of this ineffectual term to claim their release. It is only after two terms, at both of which it was possible to indict and try them according to law, that they become entitled to a discharge. The statute was made to restrain the malice and oppression of prosecutors, and to relieve wrongful imprisonment; not to embarrass the administration of the criminal law; not to relieve righteous imprisonment, and to defeat public justice. Such was the construction which this section received from this court in the case of the Commonwealth v. The Sheriff and Jailer of Allegheny County, 16 S. & R. 304, wherein it was held that a prisoner indicted for aiding and abetting another to commit murder, and not tried at the second term, was not entitled to his discharge on habeas corpus when proceedings to outlawry against the principal had been commenced without delay, but there had not been time to finish them. The language of Judge Todd, speaking for the whole court, was very much in point: “ What, then,” said he, “ was the third section of the act intended to provide against ? I think it was intended to provide against the abuse of procrastinated trial, to provide not only against the malice of the prosecutor, and against his negligence, against all Ms delays with cause or without cause, against every possible act or want of action of [136]*136the prosecutor; but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself.”
The only authority invoked against this doctrine is an unreasoned judgment of the Common Pleas of Philadelphia, in 1810, reported in 1 Brown 135, which scarcely deserves to be mentioned.
If, then, this prisoner, instead of appealing to the court as upon habeas corpus, had pleaded his new trial at the September and December Terms which elapsed after his full commitment, and thus had brought the question upon the present record, it could not have availed him. It may be well doubted whether upon demurrer such a plea would not have been set aside as wholly insufficient to bar the prosecution, but it is certain the plea would have been fully answered by a replication that no legal panel of jurors had been summoned at these terms. And if to such a replication the defendant had demurred, judgment must inevitably have gone against him, for the delay would have been attributable to the law itself. A panel of jurors, constituted according to law, was as necessary an ingredient of a competent court as the president judge himself; and delay in constituting it was as truly the law’s delay as that which is caused by the necessary forms of outlawry.
It is no answer to urge that the sheriff and commissioners, who were the officers of the law, caused the delay by not drawing and summoning jurors aright. The statute which the prisoner invokes was not designed to give him this benefit of official negligence. As a member of society he was represented by those officers ; and when he entered upon a course of crime, and placed himself in antagonism to society, he assumed the risk of their performing their duties so faithfully as to speed the penalty. It seems to his advantage that they did not — but to his advantage only in giving him more time for repentance — not as furnishing grounds for his discharge. The dilatoriness of the agents, who in some sense were his own agents, cannot cancel his responsibilities to society. He is not in position to take advantage of it in the manner proposed.
Nothing is lost to the defendant, therefore, by his failing to plead in bar the matter urged upon the judge as ground of discharge. Our judgment would have been against him on such a record as much as it is upon the record now before us.
The third error assigned is upon the court’s overruling the motion to quash the array of grand jurors at February Term. The ground of this motion was that Mathew S. Ridgway, one of the jurors, was not sufficiently indicated by his addition or occupation. He was called in the panel “Mill Boss.”
The 88th section of the Act of 14th April, 1834, relating to juries, requires the name, surname, addition, or occupation of jurors to be given, but this only for the purpose of identification. The provision is directory merely. And to be a mark of identity, [137]*137it is necessary that the addition or occupation shall be written as it is commonly known in the community from which the juror is drawn. There is no question about the identity of this juror. It is not pretended that there is any other Mathew S. itidgway in Montour county. His Christian and surnames, therefore, sufficiently indicate him; but lest some other man of the same name should be found, the statute required his addition or occupation to be expressed in the language in which it is commonly known. A precisely descriptive addition might not indicate him at all, simply because his neighbours were not accustomed so to think and speak of him. “ Mill Boss,” we take it for granted, was the popular designation of his occupation; and therefore it is quite immaterial whether the words are capable of strict definition as applicable to a rolling-mill, or a mill of any other description, they were the appropriate words for the occasion.
The fourth and last error assigned is for overruling the plea to the jurisdiction.
Counsel for the Commonwealth insists on calling it a mere challenge of the president judge, which they argue is not allowable. In form it is a special plea; and that the prisoner may have the full benefit of it, we will treat it as a plea to the jurisdiction. It denies that Judge Jordan, whom it recognises as “ acting as president judge of the court here,” was ever elected a judge of the Court of Oyer and Terminer of Montour county, agreeably to the constitution and laws of the Commonwealth; and alleges that Montour county, at the time of the election of judges, formed no part of Judge Jordan’s district, but belonged to and formed part of the 11th judicial district, composed of the counties of Luzerne, Wyoming, Columbia, and Montour; and that Judge Conyngham was duly elected president judge of said district.
To this plea there was a demurrer, a joinder therein, and judgment for the Commonwealth.
A very important question upon the constitutional power of the legislature so to alter judicial districts as to transfer a judge to the courts of certain counties who was never voted for in those counties, was intended to be raised by this plea; but, unfortunately for the prisoner, it cannot be raised in this form.
His plea admits that Judge Jordan is a judge defacto; and if it did not admit this, we would take judicial notice of the legislation which placed him in the courts of Montour county, so far as to hold him to be a judge defacto. That legislation is at least a colourable title to his office. Can the rights and powers of a judge de facto, with colour of title, be questioned in any other form than by quo warranto, at the suit of the Commonwealth ? Assuredly not.
That a private relator could not test the validity of a judicial commission, even by quo warranto, was decided in Burrell’s Case, [138]*1387 Barr 34, and the principle has been applied in a variety of other cases: see 7 S. & R. 386; 2 Rawle 139; 16 S. & R. 144; 2 W. & S. 37; 8 Harris 415; 5 Mass. Rep. 230; 4 Gill & Johnson 1; 10 B. & C. 230; 11 Ad. & E. 949.
But if a private suitor may not, by the appropriate process, question a judge’s commission, when he has a chance to be heard in defence of his right, much less may such a suitor do it collaterally in an action to which the judge is not a party, and where he cannot be heard by himself or counsel.
If this defendant may plead to the jurisdiction of the judge, every defendant in Montour county, whether in civil or criminal proceedings, may do the same; and Judge Jordan, instead of trying the rights of parties, will be continually engaged in defending his own. Not merely in defending them, but in adjudicating them, contrary to that law, which is too elementary even for the bill of rights, that forbids a man to judge his own cause.
He is a judge defacto, and as against all parties but the Commonwealth, he is a judge de jure also. If the legislation complained of is to bo tested, it must be at the instance of the Attorney-G-eneral or of some public officer representing the sovereignty of the state. The notion that the functions of a public officer, or of a corporation existing by authority of law, can be drawn in question (I do not mean as to the mode of their exercise, but as to their right of existence), except at the pleasure of the sovereign, is a mistake that springs from the too prevalent misconception that it is the duty of everybody to attend to public affairs. Public officers are provided for public duties, and the remedy for delinquencies is of frequent recurrence, is specific and effectual. This plea to the jui-isdiction cannot avail the defendant, even to raise the constitutional question intended.
Having thus given deliberate attention to all the errors assigned upon the record, and to whatever was urged in their support, the painful duty only remains for us to pronounce the judgment affirmed.