"The court will hear you, sir," said the judge, in a softened voice. "I hold in my hand," said Mr. Hurlbert, "the writ by which the jury in this case was summoned here, and that writ has no seal of the court affixed to it; and I believe, sir, that this renders all the proceedings of this trial null and void. I therefore desire to move in arrest of judgment at this time." The manner in which the judge listened to the counsel exhibited the emotion which it caused him; while the counsel for the people, startled and astonished, gazed at the writ. Judge Spencer took his seat, and leaning his head upon his hand, remained a few moments in deep thought. To the bar and spectators the scene had become one of intensified interest, and the silence of death pervaded the court-room. McKay still stood in the prisoner's. box, lost in wonder. Hope seemed suddenly spring ing from the very caverns of death, while the form of his counsel appeared to him like the angel of deliverance snatching him from the gallows. "Great God! " he thought, " is my life to be spared after all? The scaffold, the halter, the death struggle, the cold damp grave, the creeping worm, — am I to escape all these horrors?" and in imagination he was again in those fields where all those things are free. He was brought back from these reflections by the judge, who directed him to take his seat. "What answer have you to the point now raised by the defence, Mr. Collier? " asked the judge. Collier, though taken by surprise and evincing some nervousness, gave able an swer. He insisted that as the prisoner had appeared and challenged the jurors without
making the absence of the seal to the writ a ground of challenge, he had waived all ob jections. Again, by proceeding to trial with out raising this objection in any form, he had waived all error. On the other hand, the counsel for the de fence contended that nothing could be taken against the prisoner by implication, and it could not be presumed that he had waived any of his rights; that as this was a capital case, the want of seal on the writ could not be cured by stipulation; that writ without a seal was no venire, consequently the prisoner, though he had been tried before twelve men, had not been tried by a jury, hence his con viction was a nullity. The judge decided to suspend the sentence of McKay until after the determination of the question at a general term of the Su preme Court, and he was remanded to jail. The case was removed to the Supreme Court by a certiorari. It was argued in Al bany in 1820. Thomas J. Oakley, then At torney-General, appeared for the people, and John L. Talcott conducted the case for the defence. After arguments of surpassing ability and power, the verdict against McKay was set aside. Chief-Justice Spencer, in an able opinion, sustained the position assumed by the counsel for the defence, and directed a new trial. On the 20th October, 1820, McKay was again brought to trial. After another long and tedious contest, he was fully acquitted upon grounds almost as providential as those which saved him on the first trial. Before the second trial occurred, the im pression made on the public mind by the spot of blood, the touch of doom, had faded away, and he was tried without the superstition that shadowed forth his guilt.
