College, as referred to by Sir Samuel Romilly, and which, in fact, is the sole ground of his argument. We have observed more fully upon it, because, like most of the reports of that great lawyer, Sir Edward Coke, the law of the case is to be collected rather by taking the whole of his report together, than by selecting any particular part or resolution in the case. The character of Sir Edward Coke's reports is the same throughout. They abound with what are technically called obiter dicta; a kind of proverbial expression of legal maxims, but which are only true in the particular case, as the general result of all the circumstances by which they are qualified. Of all lawyers, therefore, Lord Coke, (in his reports especially) can never safely be cited in detached parts and incidental resolutions. He has a singular mixture of the precision of law and the looseness of general learning; in so much so, that there is scarcely a sententious passage in the Latin poets and historians which may not be found in his institutes and reports.

Upon a most attentive perusal of the Magdalen College case, we trust that we have satisfactorily proved, that the judgment proceeded upon the

distinctions above-mentioned. The absence of all these distinctions in the act now in question, precludes any consideration of the 13 Eliz. and the 31 Geo. 3. as parallel statutes. We do not think that the law books afford a single instance in which a direct and positive prerogative has been taken away, under any other circumstances than where such effect upon the prerogative was directly contemplated at the time of passing the act; or, which is the same thing, where the subject matter of the act was common to the crown as well as to the subject. There is a very wide difference, as we have above observed, between relieving the preroga tive by construction of law, and diminishing and impairing it by such construction.

LASTLY, As to the constitutional character of the office of secretary of state.-Upon this very extensive and important head we desire only to touch slightly, and to confine ourselves strictly to the subject matter.

The law every where regards the secretary of state as eminently superior to the ordinary magistrates,andinvests him with functions and official privileges beyond the common justices of peace. He is a magistrate by the common law,

as incidental to his office, and commits in treason and state offences as matter of course, though, from a series of practice, he seems to have no power to administer an oath, 1 Salk. 347. Wood. Inst. 457. The Queen v. Kendal aud Roe, Comber, 343. And it was so held in queen Elizabeth's time, Anderson, 297, 298. When he commits for a state offence, he commits as the highest officer of the crown, (previous to trial) with the single exception, perhaps, of the Lord Chief Justice of the King's Bench. It is not an ordinary commitment by a magistrate, but the prerogative of the crown itself acting by the instrument immediately next to the royal person. Viewing him in this high character, the law, as it is to be collected from usage and practice, permits him to send for a prisoner for reexamination, after he has finally committed him to the custody of the county gaoler, or officer of any state prison; and to discharge him before indictment, and, in some cases even after a bill has been found. (See Entick v. Carrington and Hawk. P. C. c. 74. s. 4, 9.) This no other magistrate can do; not even a judge of the Court of King's Bench, though a prisoner should be brought up before that Court on a return

to a writ of habeas corpus, and though the prosecutor himself should pray such prisoner's discharge.

His warrant is for safe and close custody, and we have a construction upon these words by a very venerable authority in our own law: to be kept in safe and close custody, says Dalton, c. 170. means safe, that the prisoner cannot escape, and close, that is, without conference with others, or intelligence of things abroad." He may commit to any gaol in the kingdom, all gaols alike being the king's, and the sheriff only having the custody and charge.

It is manifest, we think, that the public good, implied in the ancient law, which gives this prerogative to the king, (through his secretary of state) is more than a counterpoise to the public good now pretended, for holding such prerogative to be taken away by the construction of the 31 Geo. 3. Would not the public good suffer by the unrestrained communication of numerous magistrates with state prisoners after commitment, and even pending trial; and, more particularly, in times similar to those some years ago; when, from unhappy political tenets, persons of fortune and connexions were committed as

1818.

EASTSTAFF.

1818.

REX

v.

state prisoners for treason and sedition. It is difficult to understand the public good required by this construction. EASTSTAFF. Is it that the prisoners may not be ill treated by the gaolers? But, we should conceive, that such prisoners, however committed, have a right to petition, and to represent their case and treatment to the secretary of state; and that a gaoler would be punishable who should intercept or impede such petition. Here, therefore, is a remedy at once, and a remedy most plenary and effectual. The domestic discipline and regulation given by the 31 Geo. 3. to the magistrates at the county of large, is here lodged in the hands of the secretary of state. The representation goes to one who can have no interest in ill treatment, and whose dignity and responsibility are too great to admit the presumption of

participation or connivance in the misconduct of gaolers. The secretary of state has here the same relation to state prisoners, which the 31 Geo. 3. gives to the county magistrates in regard to common prisoners.

Upon the whole, we apprehend, that all the circumstances required, by the common law in other cases, which hold the king included in statutes, though not expressly mentioned, are wanting to the case in point under the 31 Geo. 3. And, therefore, that the law will not warrant such a construction of this statute as would affect the prerogative, and diminish therein the ancient, and hitherto undisputed right of the secretary of state, to commit to safe and close custody, and to exclude all persons from holding communication with state prisoners so committed under his warrant.