CHAPTER XXI.

CONCERNING HIGH TREASON IN KILLING THE CHANCELLOR, ETC.

I COME shortly to treat of the last kind of high treason declared by this act.

Si home tuast chancellor, treasurer, ou justice nostre seigneur le roy del un banck ou del autre, justice in eyre, ou de assises, & touts autre justices assignes de oyer & terminer, esteant en lour place fesant lour office.

I. This statute extends only to the actual killing of some of these officers, and therefore a conspiring to kill any of these without actual killing of any of them is not treason; but if any conspire to do the act, and one of the conspirators actually do it, this seems to be treason in them all, that are abettors or counsellors to do the act, as is before instanced in levying of war, and therefore there is a particular act made 3 H. 7. cap. 14. that make the conspiring the death of a privy counsellor to be felony.(a)

If a man only strike or wound one of these officers, tho in the execution of his office, this is a great misprision, for which in some cases the offender shall lose his hand,(b) as was once done in the case of my lord chief justice Richardson sitting as justice of oyer and terminer, but it is not treason within this act.

II. This statute extends to no other officers but those [231] above-named, and therefore not to the lord steward, consta

ble, marshal, admiral, or lord of parliameut, tho in the exercise of their offices; it may be murder, but not treason. Co. P. C. p. 18. A justice of peace, tho there be in the end of his commission of the peace, nec non ad diversa felonias, malefacta audiend' & terminand' is not a justice of oyer and terminer within this act, for the justices of oyer and terminer are intended such, as have their commission ad audiend' & terminand' &c. as the principal designation of their office; and thus it is in divers statutes also, that speak generally of justices of oyer and terminer. (c)

But a justice of peace may be also a justice of oyer and terminer by another commission, as many times they are, and then they are

(a) But this act extends only to such offenders, as are the king's sworn servants, whose names are entered in the cheque-roll of the king's household, and who is under the state of a lord; and according to lord Coke's opinion the conspiracy must be plotted to be done within the king's household. Co. P. C. p. 39. by this statute the offender was not deprived of the benefit of the clergy; but by 9 Ann. cap. 16, on occasion of Robert Harley, Esq. (afterwards earl of Oxford) being stabbed by Anthony Guiscard, who was then under examination before a committee of privy council, it was enacted, "That whoever should unlawfully attempt to kill, or should unlawfully assault, strike or wound a privy coun. sellor in the execution of his office, shall suffer death as a felon without benefit of clergy." (b) 3 Co Inst. 140.

(c) 9 Co. 118. b. Cro. Eliz. 87, 697.

within this statute, when they are sitting by virtue of that commis

sion.

The lord keeper, when there is a lord chancellor also, as there may be both at the same time, seems not to be within this law; but if there be no lord chancellor, then the lord keeper is within this act, for by the statute of 5 Eliz. cap. 18. their office is declared to be the same to all intents and purposes, as if the lord keeper were lord chancellor. But the commissioners of the custody of the seal (d) or for the treasury are not lord chancellor or lord treasurer within this act, and therefore at such times as the treasury hath been in commission those commissioners have not the same power as the lord treasurer, as in cases of writs of error by the statute of 31 E. 3 cap. 12.(e) in the exchequer before the lord chancellor and treasurer, and so for the setting of the prices of wines by the statute of 7 E. 6. (f) neither do they sit as lord treasurer in the exchequer-chamber, as judges of equity.

It extends not to the chancellor and under treasurer of the exchequer, nor to the chancellor of the county palatine of [232] Lancaster, nor to the lord privy seal, for these are special officers and of a lower rank, than the lord chancellor or treasurer.

III. The third qualification of this treason is, that it must be esteants en lour places, fesant lour offices; wherever the seal is open, whether in the court of chancery or in the chancellor's house, the chancellor or keeper there sealing writs is seants en son place, fesant son office.

And the same law seems to be, if he be hearing of causes in his chamber, for tho antiently the hearing of causes upon English bills was rare, yet use hath sufficiently obtained to give it the style of fesant son office.

Quære, touching the lord treasurer's dispatching business in his house, whether this be seant in son place, but sitting in the court of exchequer, or exchequer-chamber, or in the star-chamber, when it stood, had been seant in son place, &c.

The place for the justices of the several courts are the courts themselves, where they usually or by adjournment sit for the dispatch of the business of their courts.

Aud so much shall suffice for this treason also.

1 Hawk. P. C. 41. 4 Black. Com. c. vi. p. 84.

(d) But it should seem, that now they are within the act, since by 1 W. & M. sess. 1. cap. 21. their office is declared to be the same, and they to have the same jurisdiction and privileges, as lord chancellor.

(e) See also 31 Eliz. cap. 1.

(f) This power is given by 37. H. 8. cap. 23. which statute was revived by the 5 &

6 Ed. 6. cap. 17, but there is nothing of it in the 7 E. 6.

VOL. I.-26

CHAPTER XXII.

CONCERNING PRINCIPALS AND ACCESSARIES IN TREASON.

BEFORE I leave the discourse concerning high treason it is necessary to consider, whether or how all are principals in high treason.

In cases of felony there are two sorts of principals, viz. principals in the first degree, that do the fact, be it in murder or any other felony, and principals in the second degree, that are present aiding and abetting the felony.

And regularly in felony there are two sorts of accessaries, 1. Accessaries before the fact, which are not present, but yet counselling, commanding, or abetting the felony, but in manslaughter no such accessaries can be before: and 2. Accessaries after, such as knowing a felony to be done by such a man do yet receive or maintain him, unless it be a wife receiving her husband;(a) of this hereafter in its due place.

Now in treason thus far it is agreed of all hands, 1. That there are no accessaries á parte ante, but all such as counsel, conspire, aid, or abet the committing of any treason, whether present or absent, are all principals. 2. It is likewise agreed of all hands, that in all treasons, except that which concerns counterfeiting the great or privy seal, or money, whosoever knowingly receives, maintains, or comforts a traitor, is a principal in high treason. Co. P. C. 16, 138, and so it is there cited to be resolved in the case of Abington, who received Garnet, that was one of the conspirators in the powder treason; that which hath occasioned the doubt hath been the resolution in Conyer's case, Dy. 296. who was indicted, that proditorie receptússet, &c. Fairfax, sciens ipsum diversas pecias monetæ ad

similitudinem monetæ Angliæ vocat shillings de falso me234] tallo fabricásse; upon this he and others were discharged,

because it was misprision of treason only, and not treason; but this opinion is contradicted by my lord Coke, Pla. Cor. p 138. and yet it is said by the same author, Pascha 9 Jac. 12 Rep. 81. the receiver of a counterfeiter of the seal or money is no traitor.

We will see therefore in what cases an act ex post facto will be, treason in relation to the aid of him, that committeth this or any other treason.

A man is imprisoned for treason, the goaler voluntarily suffers him to escape, this is treason in the goaler. Stamf. Pl. Co. 32.

If a person be arrested for treason, he that rescues him is guilty of treason. [1]

(a) Vide supra, p. 47.

[1] By the 23 Sect. of the Act of April 30, 1790, it is enacted, That if any person or persons shall by force set at liberty or rescue any person who shall be found guilty of treason, murder, or any other capital crime, or rescue any person convicted of any of

And so if a man be imprisoned for treason, and another prisoner or any other person breaks the prison, and lets out the party imprisoned for treason, this is treason in the party that breaks the prison. H. 6. 5 Stamf. Pl. Cor. 32. nay, if a stranger breaks the prison and lets out one there imprisoned for treason; this is held treason, tho he that breaks the prison knew not that any there was imprisoned for treason; so resolved by ten judges, P. 16. Car. Croke 583. Bensted's case; but my lord Coke holds that he must be knowing it. Co. Mag. Cart. super statutum de frangentibus prisonam.(b)[2]

Rot. Parl. 2 H. 6. n. 18. in schedula. Mortimer was committed to the Tower of London for suspicion of treason; and 23 Feb. 2 H. 6. was indicted, quod per covinam, confœderationem & assensum Wilielmi King, &c. pro diversis denariorum summis eidem Willielmo King per præfatum Johannem Mortimer promissis, idem Johannes turrim prædict' falso & proditorié fregit: the indictment was removed into parliament, and John Mortimer likewise brought into the parliament: the commons desired the duke of Gloucester (then commissioned to hold the parliament) that the indictment might be affirmed, and that John Mortimer de prædictis proditionibus & feloniis convincatur: thereupon the duke and lords at the request of the commons affirm the indictment by act of parliament, & quod prædictus Johannes Mortimer de proditionibus & [235] feloniis prædictis convincatur, & quód trahatur per medium civitatis, & super furcas de Tyburne suspendatur, & ad terram projiciatur, & caput ejus amputetur, & interiora sua comburantur, & corpus ejus in quatuor partes dividatur, & caput ejus ponatur super portam pontis London, &c. & quód bona & câtalla, terras & tenementa sua, tam in dominico, quâm in reversione, domino regi forisfaciat.

So that it seems, tho the statute of 25 E. 3. speaks not of these offenses, yet they are in a manner incidents, and virtually included within the original offense, and therefore these cases of voluntary

(b) 2 Ce. Inst. 590.

the said crimes, going to execution or during execution, every person so offending and being thereof convicted, shall suffer death. And if any person shall by force set at liberty or rescue any person who before conviction shall stand committed for any of the capital offences aforesaid; or if any person or persons shall by force set at liberty or rescue any person committed for, or convicted of any other offence against the United States, every person so offending shall, on conviction, be fined not exceeding five hundred dollars, and imprisoned not exceeding one year.

[2] It is true it was resolved in Benstead's case, cited here by the learned author, (Sir M. Hale,) and at p. 141, but I think not with entire approbation of the rule, that the party breaking prison would have been guilty of treason though he had not known that traitors were there. I am by no means satisfied with this opinion. For the single authority upon which this point is said by Hale to have been so ruled doth by no means warrant it. The book expressly stateth it, that the party did know that traitors were there. And Brooke, who abridgeth the case, is express to the same purpose, "sciant que traitors fuerent en ceo." And Coke, citing the same case, layeth a great stress on this circumstance, that the party knew that traitors were there, and conducted them out of prison. Fost. 344.

permission to escape, rescue, breach of prison, translate the original offense upon him, that commits it by the common law; and these would be treasons as well in the case of counterfeiting of coin, as other treasons.

But herein these things are observable, 1. This judgment in Mortimer's case is not at all now in force, nor binding, for the statute of 1 Mariæ repeals not only enacted treasons, but declared treasons, that were not within 25 E. 3. and 2. That therefore at this day, if one be committed for suspicion of treason, and another break goal to let him out, yet unless the party imprisoned were really a traitor, this is no treason at this day. 3. But if he were really a traitor, then breaking of the prison to enlarge him is treason, and a treason of a greater guilt, than a knowing receiver, and then it is treason by virtue of the common law, for it is a kind of incident; the like of a receiver of a traitor, or a goaler that suffers him voluntarily to escape, those are incident treasons by the common law, and virtually inclu ded in the statute of 25 E. 3. as well as a receiver of a traitor knowingly.

The differences therefore seem to be these, which state and reconcile the whole matter.

First as for new treasons. If an act of parliament enact a new treason, and that the offender, his counsellors, abetters, and aiders thereunto shall suffer as traitors, this doth not make receivers or comforters after the fact guilty of treason, for expressum facit cessare tacitum; such a clause we shall find in the statute 23 Eliz. [236] cap. 2. for a new felony (c) 5 Eliz. cap. 1. in a case of a præmunire.(d)

If an offense be made treason in the offender, his procurers, counsellors, abetters, consenters, (without the word thereunto) yet it seems to me for the same reason it doth not make the knowing receivers traitors, unless the words receivers or comforters be also inserted: for the former words import an offense preceding or concomitant to the act of treason, but the latter words receivers and comforters are after the offense, and so of another nature: and this difference appears expressly by the statute of 13 Eliz. cap. 2. where abetters, procurers, and counsellors are made guilty of high treason; but receivers and comforters(e) after the fact are only within the statute of præmunire; the like in 27 Eliz. cap. 2. where the coming of a priest, &c. is treason, but his receiver, aider, or comforter is felony: so 5 & 6 E. 6. cap. 11. and 1 Eliz. cap. 5. the offenders, their counsellors, ubetters and procurers, and all and every their aiders and comforters knowing the same extend to knowing receivers.

The word (aid) is of somewhat a more doubtful extent, yet we shall find in those statutes and some others the word aid to be applied to an aiding after the offense, and not in it or to it; but it seems to

(c) The words of this statute are, aiders, procurers, and abetters.

(d) The words of this statute are more extensive, viz. abetters, procurers, counsellors, aiders, assistants, and comforters.

(e) The words in this place of the statute are, aiders, comforters, or maintainers.