case the case OF kendal and other a secretary of state although he be neither  a conservator nor a justice of the peace by virtue of his office may commit a  person for assist another in the custody of a messenger for high treason to  escape but if the particular species of treason for which the prisoner be in  custody be not clear and certain express in the warrant the court of king  bench will admit the party to bail S c salk S c comb S c holt S c Mod S c skin  S c ld ray S c saint Tr the defendant be bring up by habeas corpus it appear  by the return that modern er p they have be commit by sir William Trumball one  of the secretary of state for assist sir James Montgomery who be in custody  for high treason in his escape sir b shower move that they may be discharge  their commitment not be legal first because a secretary of state be no justice  of peace and as a secretary of state he can take a recognizance to prosecute  and therefore it be strange he shall have power to commit it be true since sir  Lionel Jenkin time it have be practice by the secretary of state to take bind  I have look into rushworth collection and I can find one precedent for a  secretary of state to commit any one it can be presume that sir William  Trumball be a justice of peace for it appear that he be secretary of state and  as such do make the commitment and true I can modern see but he may as well  commit for murder or felony as for high treason it be object that any mail may  arrest another for treason and that be true but then he must carry he to a  justice of the peace which we say the secretary of state be not second but  however though we be to grant that a secretary of state have power to commit  yet with submission in this case the defendant ought to be bail since they be  within the benefit of the habeas corpus Act for the commitment appear to be  for the assist the escape of sir James Montgomery who be commit for high  treason but be never outlaw nor indict and my Lord chief justice hale a be  express that the gaoler shall not be arraign for a escape until the prisoner  be attaint for if the prisoner be acquit the escape be dispunishable and here  the prisoner can be attaint for he be dead so that they only can be fine and  imprison three with submission to assist in the escape of one commit for high  treason be not treason unless the party assist know that he be commit for high  treason Bensteads case cro car b and if this offence be but felony the  commitment be illegal because it will have be too general set forth Inst Inst  c if a prisoner break prison it be felony at commonlaw be the cause what it  may but by statute I Edward de to break in pieces prison none shall suffer  judgement of life and member unless the cause for which he be imprison require  such judgement hawk p c ch d and I take it for a rule that whatever be not  felony on the escape of a felon be not treason upon the escape of a  traitorStaund p c hale p c Bac Abr e fourthly it be say that the prisoner be  in custody of a messenger but what that be we know not there be no book of law  that take notice of any such person five it do not appear what the offence be  nor that any treason be commit so that we must throw ourselves upon your  lordship justice and hope that for these reason your lordship will think fit  to discharge we quite or else to bail we Trevor attorneygeneral answer that  these commitment by secretary of state have always be receive to be good and  that their office be more ancient than the privycouncil and that it be clear  the privycouncil can commit and that though the warrant be not so exact yet it  be sufficient and it be not like a indictment for the time and place and the  modern particular fact need not be express in the warrant as they must be in  indictment shower here the messenger be no officer in law the party in his  custody may bring false imprisonment against he and then to assist a person to  escape in such a case be no fault at all for it be to free he from one that  have nothing to do with he holt chief justice the law indeed do not take  notice of a messenger but however if a mail rescue another that be carry to  the gaol by a messenger or any other person it be criminal then why shall not  a secretary of state have power by modern er p law to make commitment pray  what authority have a justice of peace to commit in case of high treason it be  not give to he by any statute and true I can tell from whence he derive such a  authority unless it be by virtue of the old commonlaw which do authorize  conservator of the peace to commit in such case my Lord coke seem to intimate  as if a man can not be commit till he be indict but certain that be a mistake  for the constant practice be otherwise see Inst hale p c hawk p c ch S Bl coin  a but their strong objection seem to be that the nature of the treason be not  set forth as whether it be for levy of war or for conspire of treason or any  other species of treason Trevor attorneygeneral let the treason be what it  will of whatever sort it be to assist such a person charge with it to escape  be treason holt chief justice suppose the treason be for coin c will it be  treason to assist such a person to escape Trevor attorneygeneral the question  be whether this man be charge with high treason as you have allege it in the  warrant Rokeby justice do it appear to we that this offence be not bailable  holt chief justice I remember my Lord chief justice hale at Norwich assize be  of opinion that a justice of modern peace may direct a warrant to any person  to execute it and in a case that come before he there the warrant be direct to  the constable of one parish to be execute in another parish which be do and  hold to be good at another day this matter be again debate holt chief justice  in Anderson it be the opinion of all the judge that the privycouncil or any  one of they may commiti Anderson b and certain the secretary of state be one  of they shower as for that resolution it may well be suspect for law it be not  judicial and there have be instance where judge have give different resolution  under their hand from those which they have give judicial when they act under  a obligation of a oath and with submission one of the privycouncil can commit  for he can give a oath and it seem against the reason of our constitution that  the same officer shall have power to commit and yet can administer a oath  which I take to be necessary upon every commitment for my Lord coke Inst a say  that all commitment must be upon oath then it be very extraordinary that a  officer shall have power to commit and yet he can neither administer a oath  nor take a recognizance to prosecute nor take bail though his judgement tell  he that the offence be bailable this seem very inconsistent these  extraordinary commitment be not favour in our law and in the old time such  commitment be very seldom then Edward c be one of those statute that vindicate  the liberty of the subject in respect of extrajudicial commitment for it be  say there none shall be apprehend upon suggestion to the king or his Council  unless by indictment or presentment or by process at the commonlaw and in the  four year of Charles the first these general commitment per mandatum domini  king be think a great oppression to the subject see car c hawk p c ch S b my  Lord coke Inst c say that before commitment there must be a oath which in this  case can not be it be true the whole privycouncil may examine upon oath but  that one privycouncillor may do so I do not find any where in PrynnePrynnes  animadversion on the four institute page d there be a notable record where the  person be impeach by the Commons in parliament for a riot and assault on  several lord of the Council from which I infer modern they will not have any  recourse to the legislator have the privycouncil themselves such a power to  commit I confess the privycouncil may cite and so may the ecclesiastical court  summon but they can commit modern er p as to my other exception in Inst it be  say that a new gaol can be erect without air Act of parliament how then can  the house of these messenger be as so many prison I think there be fortytwo  messenger and if their house shall be lawful place of confinement there will  be so many new gaol or prison erect without authority of parliament which  ought not to be Edward no in the Rep indeed a messenger be mention but nothing  can be draw from thence that he can therefore keep a prison so that if sir  James Montgomery be not in legal custody the assist of he to escape be no  fault there be other place of confinement beside messenger house that have be  question whether they be prison or not so it have be doubt whether the tower  of London be a prison or not within the habeas corpus Act holt chief justice  the tower be a prison without doubt shower my next exception be that the  warrant do not express what the treason be and there may be a treason the  assist of which be not treason as the harbour of jesuits or  ers of money it  be only a misprision of treason my inference be that if sir James Montgomery  be charge with such a treason the assist of which will not make I guilty of  treason then my assist he to escape be not treason dyer a co a then if the  intendment be general it shall be take for the liberty of the subject so be  Vaughan where it also appear that the return to a habeas corpus ought to be  certain and so it be resolve in bushel case so that if it can appear to your  lordship to be treason with submission we ought to be bail within the habeas  corpus Act levinz sergeant on the same side if sir James Montgomery himself be  here he must have be bail by reason of the uncertainty of the crime express  ill the warrant of commitment and shall we be in a worse case than he himself  will have be modern return in all case ought to be particular and certain  express the cause more b there be several case of prisoner commit and deliver  by habeas corpus and the return of the officer have custody of they in the  fleet the tower and the Gatehouse be all certain the old law be that all  commitment shall be to the county gaol Britton captain Norwoods case but see  Geo c and hawk p c ch S c and the statute of Henry c that justice of peace  shall commit to the county gaol be but declaratory of the commonlaw and a  messenger house certain be not the county gaol indeed a man may be commit to a  messenger custody for twentyfour hour c while the matter be under examination  there be Howell case Leon d where the power of the secretary of state be  question but I be loath to meddle with it and I think we need not have make  all this stir about it we only desire to be bail it be plain that the warrant  must be legal and chief justice hale hale p c e be as plain that the rescuer  shall not be arraign till the principal be attaint then if it be true that sir  James Montgomery be dead it be moral impossible for these person ever to be  attaint Trevor attorneygeneral in Howell case the writ of habeas corpus be  direct to the steward and marshal of the Marshalsea who make return that the  say Howell be commit to his custody per mandatum francisci Walsingham soldier  first council chamber et One de private citizen council owner queen and that  return be by the court hold insufficient because the cause why he be commit be  not set down in the return and there the court take a difference where one be  commit by one of the privycouncil for in such case the cause of the commit  ought to be set down in the return but where the party be commit by the whole  Council there no cause need to be allege it be object that the treason not be  express therefore the aid and assist of he can be treason for say they this  treason may be for harbour jesuits  ers of coin c but the receive of jesuits c  be not a aid and abet of they but with submission the assist any of these  person be treason though these fact be make treason by Act of parliament  modern er p modern so I think it be not necessary to insert the overtact in  the warrant of commitment the species of treason be not usual mention there I  do agree that upon the trial of the accessary there must be the attainder of  the principal produce but here in treason all be principal and let they take  advantage of that at the trial as for their objection that no person shall be  commit but to the county gaol this be not so for then no man can be commit to  the tower the Gatehouse c hawles solicitor general these commitment in case of  high treason have vary in all time sometime the particular fact have be  express and sometime not and yet think good either way as for the objection  that a oath be necessary to be make before any commitment that deed not be  there be many case where person may be commit without any oath at all so the  house of Commons may commit and yet they can administer a oath so a constable  may commit without any oath stand then as to the objection concern the  messenger it be out of the case for though his house be no gaol yet the assist  of one to escape from thence be as criminal as if he have assist to escape  from the county gaol for be with the messenger while he be under examination  he be in the custody of the law and it be not the breach of the wall that be a  breach only of prison for as Bracton observe to assist a man to escape that be  go to be execute be a breach of prison so that we conceive the commitment to  be lawful and that they ought not to be bail holt chief justice indeed you may  have spare that question about the secretary power to commit it seem to have  be make more for delight than for necessity but in Anderson it be plain  resolve and so it be in Leon that he have such power Bl Com Bl Rep and see  Lord canden exposition of these case state trial hawk p c ch S a but that  which always puzzle I be what authority there be to commit at commonlaw and  why justice of gaol delivery at commonlaw may impanel a jury to inquire c as  to the objection about the commitment to a messenger sure the party may be  commit to he during examination indeed I do take it that general the  commitment ought to be to the common gaol special since the habeas corpus  modern Act that the party may better take out a habeas corpus though you will  find in my Lord chief justice hale plea of the crown hale p c hawk p c e S ch  S a that the break of other prison be felony now consider this that if a Act  of parliament make a offence felony and there be not one word as to the  accessary yet they shall be felon then why shall not these person that be in  the nature of accessary to treason be likewise guilty of treason but Mr  attorney I very much doubt whether you ought not to have specify what sort of  treason it be and that he have commit it as for the purpose if it have be for  the conspire the death of the king or for adhere to his enemy c then the  assist the escape of such a traitor come under the same species of treason  then it be a great doubt with I whether you shall not aver that he do actual  commit the treason Trevor attorneygeneral with submission it will be too much  to say in the warrant of high treason that the party be guilty indeed in the  indictment we must allege it holt chief justice I think it must be consider of  though I doubt very much as to the not specify of the treason that the  particular sort ought to have be express in the warrant Rokeby justice certain  a conservator of the peace at the commonlaw may have commit and to administer  a oath be incident to his office so that I take it that a secretary of stale  be in nature of a conservator of the peace and may as well commit now as the  other can at commonlaw see the opinion of Lord Camden on this passage in  deliver the judgement of the court of common plea in the case of entick v  Carrington state trial App b but indeed it seem to I that modern er p they be  bailable because it be not express what sort of treason it be as to the  messenger I take he to be only a carrier of the party to prison and that he be  not in the nature of a gaoler Eyre justice upon the whole I think it  reasonable that they shall be bail holt chief justice then let they be bail