24. If the defendant was entitled to his discharge at the time of his escape, and would be entitled to it as soon as taken on the escape warrant, the court will supersede the warrant. Str. 401.

25. A man taken upon an escape warrant of a judge, after his patent is determined, shall be discharged. Ld. Raym. 1513.

26. If a prisoner escapes, and plaintiff sends an order for his discharge, the jailer cannot retake him for his fees. Str. 909.

IV. WHAT REMEDY BY ACTION FOR AN ESCAPE.

1. By the common law, the sheriff, and every jailer, ought to keep persons in exccution in salva custodia. 3 Co. 44.

2. And if such a prisoner escapes, an action upon the case lies against him. 2 Inst. 382. 1 Rol. 99. l. 10, 15. 2 Cro. 289. 2 Lev.

159.

3. And debt lies in all cases, as well for a negligent as a voluntary escape, on final process. 2 Inst. 382. Plowd. 36, b. 2 Lev. 159. 15 Ed. 4, 20. Str. 873. 2 H. Bl. 108. 1 Rev. Code, 119.

4. And may be sued by writ or by bill of debt. 2 Inst. 382. Dub. Plowd. 38. a. 42. Ed. 3. 13. a.

5. So, if two are in execution and one of them escapes. 1 Rol. 205. 6. Case (but not debt) lies for the escape of an outlaw on mesne pró

7. An administratrix may maintain an action in her own name against the marshal for the escape of a prisoner in execution, on a judgment obtained by her as administratrix. 2 Term. Rep. 126.

8. Under a count for a voluntary escape, the plaintiff may give evidence of a negligent escape, and the defendant may plead a retaking on a fresh_pursuit to such a county, without traversing the voluntary escape. Ibid.

9. In debt for an escape against the sheriff, the endorsement non est inventus on the ca. sa. is sufficient evidence of its having been delivered to him. Cowp. 63.

10. A legal arrest must be proved in such action. Ibid.

11. In debt against the sheriff or jailer for an escape, the jury cannot give a less sum than a creditor would have recovered against the prisoner, viz. the sum endorsed on the writ, and the legal fees of execution. 2 Term. Rep. 126.

12. At common law, an action on the case only lay, in which the plaintiff might recover damages for the officer's neglect; but still an action lay against the debtor. An action of debt was given by statute; but this being in affirmance of the common law, the plaintiff has his election. See 1 Saun. 38. note (2) by Wms.

V. AGAINST WHOM THE ACTION SHALL BE BROUGHT.

1. The action for escape shall be brought against him who has the custody of the jail. 3 Com. Dig. 598, by Rose.

2 Inst. 381, 2.

2. Though he has it de facto only, and not de jure. 3. As, it shall be against the sheriff, not against his deputy; as the jailer who takes care of the prison in the county. 2 Inst. 382. Rol. 94, 1. 30. Semb, Hard. 34.

1 Rol. 806, l. 45.

4. Or the sergeant who makes the arrest. 5. So it lies against the old sheriff, if he omits to deliver any prisoner by indenture to the new. 2 Leo. 54.

6. But an action for an escape shall not be against the superior, if the inferior be sufficient. 2 Inst. 382.

This must be understood, however, of those cases where a person has the custody of a jail of freehold or inheritance, and commits it to another person, as is frequently the case in England. 2 Bac. Abr. Gwil. edit. 518. See infra, No. 7.

7. For if a jailer, who is the sheriff's servant, suffers a prisoner to escape, the action must be brought against the sheriff, not against the jailer; for an escape out of the jailer's custody is, by intendment of law, an escape out of the sheriff's custody. 2 Bac Abr. Gril. edit. 519.

8. As to the escape of criminals, whoever de facto occupies the office of jailer is liable. Ibid. In margin, not (b.)

9. So, an arrest by the sheriff's officer is, in judgment of law, the same as if the arrest were by the sheriff in person; and if such officer suffer the party arrested to escape, the action must be brought against the sheriff. 2 Bac. Abr. Gwil. edit. 519.

Indictment against a jailer, for negligently permitting a prisoner committed to his custody, by virtue of a justice's warrant, to escape.

in the year

day

The jurors for, &c. upon their oath present, that on the of I D, esquire, then being one of the justices of the commonwealth, assigned to keep the peace of the said commonwealth, in and for the said county of and also to hear and determine divers felonies, trespasses, and other misdemeanors committed in the same county, in due form of law, did make his warrant of commitment under his hand and seal, to wit: at the parish of S, in the said county of bearing date the same day and year aforesaid, directed to the keeper of the common jail in and for the said county of by which said warrant of commitment the said keeper was required to receive into his custody the body of W M, who was therewith sent to him the said keeper (the said W M having been brought before the said I D, the justice aforesaid, and charged upon the oath of IS, with assaulting and robbing him of his watch and money, to wit, one shilling and some half-pence, in a certain place near the commonwealth's highway, in the parish of S, in the said county of > and him safely to keep until the then next court, &c. for the said county, as by the same warrant more fully appears; by virtue of which said warrant of commitment, afterwards, to wit, on the said day of in the in the said county of A B then being the keeper of the common jail of the said county of did receive the said W M into his custody in the said common jail there situate. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A B, late of the parish of yeoman, so being keeper of the said common jail, and having the said W M in his custody in the said

year aforesaid, at the parish of

in the said county of

346

the

in

county

day of jail on that occasion, afterwards, to wit, on the year aforesaid, at the parish aforesaid, in the aforesaid, unlawfully and negligently did permit and suffer the said W M (so being a prisoner committed to the said jail as aforesaid) to escape and go at large from and out of the custody of him the said Á B, out of the said prison, wheresoever he would, to the great hindrance and destruction of justice, in contempt of the laws of this commonwealth, to the evil example of all others in the like case offending, and against the peace and dignity of the commonwealth.

For more on this subject, see title 'ESCAPE.'

JUDGMENT.

1. OF judgments, some are fixed and stated; as in cases of treason, felony, and misprisions; the particular form of which may be seen under their respective titles.

2. Others are discretionary and variable according to the particular circumstances of each case. Thus, for crimes of an infamous nature, such as petit larceny, perjury, or forgery at common law, gross cheats, conspiracy not requiring a villainous judgment, keeping a bawdy house, bribing witnesses to stifle their evidence, and other offences of the like nature; it seems to be in a great measure left to the prudence of the court to inflict such corporal punishment, and also such fine, and binding to the good behaviour for a certain time, as shall seem most proper and adequate to the offence. Haw. B. 2. c. 48, sect. 14.

3. The court may assess a fine, but cannot award any corporal punishment against a defendant, unless he be actually present in court. Ibid. sect. 17.

4. Where there are several defendants, a joint award of one fine against them all is erroneous; for it ought to be severally against each defendant, for otherwise, one who hath paid his proportionate part might be continued in prison till all the others have also paid theirs, which would be in effect to punish him for the offence of another. Ibid. sect. 18.

5. A fine is under the power of the court, during the term in which it is set; and may be mitigated as shall be thought proper; but after the term, it admits of no alteration. Ibid. sect. 20.

6. Peculiar punishments are appointed for several offences, as pillory, stocks, imprisonment, and the like; and in all these cases, no room is left for the justices discretion, for they ought to give judgment, and to inflict the punishment in all the circumstances thereof, as such statute doth direct. Dalt.c. 188.

7. And by many acts of Assembly the fine imposed on the offender, in the cases therein mentioned, is to be assessed by a jury, and consequently not discretionary with a court.

8. Judgment of outlawry is given by the coroner at the fifth county court, upon the party's not appearing to the exigent. Haw. B. 2. c. 48,

sect. 21.

JURIES AND JURORS.

THE trial by jury has long been the subject of encomium among the most celebrated writers on the English law. Its origin has been traced up as far back as the Saxons themselves, and its use has continued through the various revolutions sustained by our British ancestors. But while we admire the theory of this institution as delineated by its enthusiastic advocates, we have to lament, that both in England and America it is, in practice, too susceptible of abuse.

But because an institution may be abused, it does not necessarily follow that it should be wholly rejected. It is the fate of all human productions; and we ought rather to submit to it in this instance, than lose the many invaluable advantages peculiar to the trial by jury. Its utility in preserving the liberty of the people has been fully proved by its long duration in England; and from that nation's having retained its liberties longer than any other part of Europe, where the trial by jury was either not known, or entirely laid aside. And so sensible of this important truth have the people of America been, that it is made an express article in most of the constitutions of the several United States, and was strongly insisted on, and at length obtained as an amendment to the federal constitution, that the ancient trial by jury should be held sacred. It should therefore be our study to preserve this palladium of our liberties from those abuses and encroachments, which can alone endanger the institution itself, and with it the rights of the people. See 3 Bl. Com, ch. 23.

I. Who may or may not be jurors. II. How and by whom summoned. III. Of the number of jurors. IV. Of the challenge of jurors. V. Of the demeanor of jurors in giving their verdict. VI. Of the indemnity and punishment of jurors.

I. WHO MAY, OR MAY NOT BE JURORS.

For the qualification of jurors, see 1 Rev. Code, ch. 73, p. 101. ch. ¥58, p, 313.

t

II. HOW AND BY WHOM SUMMONED.

On this subject see 1 Rev. Code, ch. 73, p. 99, 100, 101, and 2 Rev. Code, Index, titles 'GRAND JURIES, JURIES, JURORS, INQUEST, VE

NIRE MEN.'

III. OF THE NUMBER OF JURORS.

1. Although the grand jury in England has long consisted of any number between twelve and twenty-three, and in Virginia of any number between sixteen and twenty-four, twelve of whom, at least, if a majority, must agree; and the petit jury in both countries of twelve, who must be unanimous; yet this has not been uniformly the case, nor has the rule existed from time immemorial. See Hargr. Co. Lit. 155, a note (3.) 3 Bl. Com. 376. Christian's note (20.) 2 Hale's Hist. Com. Law, 187. 1 Rev. Code, eh. 73, p. 99, 100.

2. For many years after the first settlement of Virginia, all presentments were made by the church wardens. (See 1 vol. Siat, at large, index, title CHURCH WARDENS.') In the year 1645, we meet with the first act directing grand juries to be empannelled; but the law is silent as to their number or qualifications. (1 Stat. large, 304.) In 1657, the law was re-enacted in a revisal. in 1658 it was repealed. (1 Stat. large, 521.) In the revisal of 1661-2, (1 Stat. large, 463.) But the law was again enacted, with a few amendments. (2 vol. Stat. large.) In 1705, the number of the grand jury was fixed between fifteen and twenty-four, and so continued till the year 1777, when it was altered to sixteen and twenty-four. See V. L. edit. 1733, p. 181. Edit. 1752, p. 270. Edit. 1769, p. 188. Edit. 1785, p. 75. Rev. Code, ch. 73, p. 99, 100.

3. A majority of the grand jury, being not less than twelve, must concur, before any presentment can be made. 2 Hale 161. 3 BI.

Com, 376. Christian's note.

4. In the case of inquisitions taken in the country, it has been the uniform practice in England (conformably to the ancient mode of summoning a jury from the vicinage or hundred) to return 24: for, as Lord Hale says, though only twelve are swoRN, yet twenty-four are to be RETURNED, to supply the defects or want of appearance of those that are challenged off, or make default.' 2 Hale's Hist. Com. Law. 137. 5. The number of the petit jury has been long fixed at twelve. (See the quaint reason given by Lord Coke. not been uniformly the case in Virginia; for in 1630, we find that Co. Lit. 155, a.) But this has Doctor Pott, late governor, was tried for, and found guilty of stealing cattle, by thirteen jurors; and in the same year another person convicted of petit treason by fourteen jurors. See 1 vol. Stat large, 145, 146.