keepers under him as he fhall think proper, and is refponsible for any damages that any perfon may fuftain, by the escape of any prifoner from goal, by the fault or connivance of fuch keepers, or any other perfon that has the charge of faid goal under the sheriff, and alfo for other faults and negligences of fuch under-keepers, in any matters respecting said trust.

The fheriffs have the power of conftituting and appointing, a certain number of deputies, to act under them, who have the fame authority as the fheriff, and who, as well as the fheriff must take the oath by law prefcribed, before they are qualified to execute the office.

The sheriff has the liberty of deputing fome meet perfon on fpecial occafions, to ferve and execute any particular procefs, which deputation, must be on the back of the writ, and the perfon deputed after ferving it, muft make oath before proper authority that he ferved the fame according to his indorfement, and that he did not fill, nor direct any perfon to fill the fame. The only inftances where it is ufual for fheriffs to make fuch fpecial deputies, are where no legal officer can conveniently be had, or the perfon against whom the writ is, fecretes himself, and keeps himfelf out of the way of known officers. In fuch cafes, he deputes fome perfon for that Special purpose, fo that there be no failure of juftice. The sheriff or his deputy, may not draw, or fill up any writ, process, or declaration, nor appear as attornies.

It is the duty of the fheriff to attend on all the ftated courts within the county, to preferve good order in the court, and to execute their judgments. In all matters of a criminal nature, it is his duty to carry the judgments of the court into execution, by inflicting fuch punishinent as they order.

5. Juflices of the peace, may be confidered as having fome share of executive authority. It is their duty to conferve the peace of the county. When riots happen, they have power to read the riot act, and command the rioters to difperfe. In case of disobedience, they have right to apprehend the offenders, and command any perfon to affift. The fheriff must take their advice in railing

the

the militia to quell riots. They, with the selectmen, constables, and grandjurors, nominate tavern-keepers. But their authority is chiefly of a judicial nature.

6. Goal keepers are appointed by the sheriff, for the immediate keeping the goal, and fecuring the prifoners. There are many other executive officers in the leffer divifions of the ftate, fuch as town and fociety officers-thefe will be confidered, when we come to treat of towns, and focieties, which are referved for a fpecial confideration, in the course of thefe enquiries.

CHAPTER FOURTH.

OF THE JUDICATIVE POWER.

THE jurifdiction of courts of law is precifely defined, and li

mited by statute. We are perplexed by no difputes on this subject, and have occasion only to exhibit the feveral courts, from the higheft to the lowest, by a concife abridgment of the ftatutes.

I. The Supreme Court of Errors, confifts of the governor, lieutenant-governor, and council; in which the governor prefides, and in his abfence the lieutenant-governor, or if he be abfent, the fenior affiftant prefent. Eight of the council conftitute a quorum. This is the highest court of law in the ftate, and is the dernier refort in all matters of law and equity, brought by way of writ of error, or complaint from the judgment, or decree of the fuperior court, wherein the rules of law, or principles of equity, appear from the files, records, and exhibits of faid court, to have been mistakenly adjudged, and determined. This court is holden alternately at Hartford, and at New-Haven, the first Tuesday in June. The fecretary is their clerk. It is the duty of this court, to commit the reafons of their judgments to writing, which are to be figned by one of the council and lodged in the office of the clerk of the fuperior court. This court was inftituted in 1784, previously to which time, the general affembly was the laft refort.

II. The Superior Court confifts of five judges, appointed annually by the general affembly. This annual appointment of the judges of the fuperior court, is the most exceptionable practice adopted in the state. Judges have no power to frame laws-they

can

can only expound them. They can have no temptation to extend or mifconftrue the law, to the oppreffion of the people, because they can derive no benefit from fuch mifconduct. The refponfibility of the legislature to the people, is the fecurity that good laws fhall be made; but the judiciary are placed on a different bafis. The fecu rity that they fhall expound the laws juftly, is their independence. Secure in their places, they can have no bias to deviate from the principles of justice, and they will equally refift the infolence of of power, or the caprice of the people. They will equally regard the rich, and the poor. But, if they must court the favour of the legiflature, or the fmiles of the people to preferve their offices, fuch will be their state of dependence, that they may infenfibly be led in their decifions, to bend the principles of juftice, to a calculation of fecuring the favor of the perfons moft induential in their appointments. In this state it is apparent that where a cafe comes before the fuperior court, for trial between an influential character, who is ufually a member of the legislature, and a poor man without influence, the judges have not that independence of fituation, which is neceflary to enable them to form an impartial decifion. There is danger of the operation of a bias on their minds, to which they ought not to be expofed by the nature of their appointments. As they can have no inducement to extend their power, let them be independent, and they have no inducement to fwerve from justice.

They ought to be appointed during good behaviour, and removable on impeachment for corruption, and mifbehaviour. This will be a fufficient guard against mal-administration: but to avoid inconveniencies of another nature, it would be proper to declare that they fhould not hold their offices after they arrive to a certain age, and that fuch a state of infirmity as precluded the performance of official duties, fhould vacate their feats.

n Their jurifdiction extends thro the ftate. They hold their courts in, and perform circuits thro every county. They poffefs a fourfould juridiction. They hold pleas of certain crimes. They have appellate jurifdiction in certain matters of a civil nature, from the courts of common pleas, and courts of probates. They have original jurifdiction in all matters of equity, where the fum exceeds one hundred pounds, and is lefs than fixteen hundred. They have jurifdiction

Statutes, 29.

Jurifdiction by writs of error from the judgments and decrees of the courts of fubordinate rank. I fhall treat of each branch of juris diction.

1. The criminal jurifdiction extends to all crimes, the punishment of which relate to life, limb or banishment, and to other high crimes, and misdemeanors, and to adultery. They have by ftatute jurifdiction of the crimes of blafphemy, atheifm, polytheifin, and unitarianifm. Of robbery, burglary, forgery, counterfeiting, and horfe ftealing. The expreffion of high crimes and mifdemeanors, is of uncertain meaning, but the court have judged that under mifdemeanors, they have cognizance of all crimes where the common law punishments of fine, imprisonment, and pillory are inflicted, fo that they denominate the offences, mifdemeanors at common law. They have determined that they have cognizance of perjury.

2. The appellate jurifdiction is from the courts of common pleas, and courts of probate. Appeals lie from the courts of common pleas in all cafes, wherein the title of land is concerned, or the value of the debt, damage, or matter in difpute, fhall exceed the fum of twenty pounds; excepting it be a bond, or note, vouched by two witneffes. It has been adjudged that the fum demanded in the writ, shall not be the rule of determining the jurisdiction ; but that the court will look into the declaration and pleadings, and if from the facts stated it is apparent that according to the rules of afcertaining damages, judgment cannot be rendered for a greater fum than twenty pounds, the appeal cannot lie but where it may be a difcretionary matter with the jury to find greater, or lefs damages, the appeal must be sustained. In an action on book, the plaintiff averred that twenty pounds was due, and demanded twenty-five pounds, the court adjudged that no appeal would lie, because the plaintiff could not recover more than the fum he said was due, which was but twenty pounds.

:

In an action on note for fifty pounds, which appeared by the pleadings to be an arbitration note, and that the award was, that the defendant should pay the plaintiff eighteen pounds only, judg ment being rendered by the county court for that fum, an appeal was taken, but abated by the superior court, because neither the original

Kirb. Rep. 106. Ibid. 35. Gates vs. Jones. §. C. 179

original matter of controversy, nor the award, amounted to twenty pounds, and the award was the only matter in difpute. In an action on book, demanding thirty pounds, the book produced was for lefs than twenty pounds, and the county court refused an appeal, but on writ of error, judgment was reverfed. The defendant in error offered to produce a certified copy from the clerk of the county court, where the book was lodged on file, that it was for lefs than twenty pounds, but the court said they could not take notice of it, unless it was made parcel of the record.

It has been adjudged that if a note or bond for money only, be witnessed by two witneffes, and at the time of trial, either of the witneffes be dead, or become interested, fo as to be excluded from testifying, that appeal will not lie; because by the reafon of the death, or interestedness of the witness, the note or bond cannot be vouched in court by two witneffes.

No appeals lie upon defaults, unless there was a hearing in damages, for otherwife the party is not fuppofed to be in court: but from every sentence by which the party is aggrieved, if he be in court, appeal lies, as from a judgment rendered upon nihil dicit. No appeal lies to an adjourned court.

It has been determined that no appeal lies from the court of common pleas, in a qui-tam profecution, for any crime, let the matter in difpute be of ever fo great amount. Formerly it was held that if the defendant was acquitted, the prosecutor fhould not be allowed an appeal, because no perfon fhall be brought in jeopardy twice for the fame crime: but if he was convicted, it was fuppofed that as the profecution was of the nature of a civil action, he had a right to an appeal, if the fum in difpute exceeded twenty pounds. But in a late cafe of Gilbert againft Stedman, the fuperior court decided that the defendant on conviction, had no right of appeal, and this judgment was affirmed by the fupreme court of errors.

Appeals in all cafes must be taken during the feffion of the court from whence the appeal is taken, bond with furety given, and the duty of fix fhillings paid. The appeals must be entered before the fecond opening of the court to which they are taken, unless the appellant