A letter to a lawyer containing an essay to prove the compassing and imagination of the death of the King's brother and heir to be high-treason within 25 Ed. 3 / written by a gentleman in the country, and one of His Majesties justices of the peace for the county of -----. Gentleman in the country and one of His Majesties justices of the peace. 1685 Approx. 18 KB of XML-encoded text transcribed from 7 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2008-09 (EEBO-TCP Phase 1). A48183 Wing L1664 ESTC R11129 12387088 ocm 12387088 60871 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A48183) Transcribed from: (Early English Books Online ; image set 60871) Images scanned from microfilm: (Early English books, 1641-1700 ; 766:15) A letter to a lawyer containing an essay to prove the compassing and imagination of the death of the King's brother and heir to be high-treason within 25 Ed. 3 / written by a gentleman in the country, and one of His Majesties justices of the peace for the county of -----. Gentleman in the country and one of His Majesties justices of the peace. [2], 5-14 p. Printed for John Eglesfeild ..., London : 1685. Dated at end of letter: Sept. 29, 1684. Reproduction of original in Huntington Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. 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Keying and markup guidelines are available at the Text Creation Partnership web site . eng Great Britain -- History -- Restoration, 1660-1688. 2007-01 TCP Assigned for keying and markup 2007-02 Apex CoVantage Keyed and coded from ProQuest page images 2007-03 Pip Willcox Sampled and proofread 2007-03 Pip Willcox Text and markup reviewed and edited 2008-02 pfs Batch review (QC) and XML conversion A LETTER TO A LAWYER : Containing an ESSAY To prove the Compassing and Imagination Of the DEATH of the King's Brother and Heir To be High-Treason within 25. Ed. 3. Written by a Gentleman in the Country , and 〈◊〉 〈◊〉 jesties Justices of the Peace for the County of — LONDON , Printed for John Eglesfeild , at the Marygold in Fleet-street . 1685. A LETTER TO A Lawyer , &c. SIR , IN Reading somewhat of the Crown-Law this Vacation , I met with a Case of great consequence , which occasioned me some thoughts ; I would desire your Opinion thereon , my first Conceptions upon it I herewith send you : You know that by the 25th of Edw. 3. Cap. 2. it is said to be Treason to Compass or Imagine the Death of our Lord the King ; our Lady his Companion , or of their Eldest Son and Heir , &c. Upon reading of which Statute there seemed to me to arise a considerable Question from the last words of that Clause , viz. If a Collateral Heir be not there meant as well as Lineal ? Although my Lord Coke determines it in the Negative , yet considering how the Law stood before this Act of Parliament , and what was the general end why the Common-Law made , and this Statute allowed Compassing or Imagination of the Death of the King 's Eldest Son and Heir to be High-Treason , and the equality of the mischief to the Publick in the Death of a Collateral Heir with that of a Lineal , and the necessity and design of the Law for the Preservation of the Royal Line in both these Cases : Considering these things , I cannot upon first thoughts persuade my self any other but that a Brother or Uncle being next Heir was intended by that Law as much as a Son , if there happen to be such . For it must be agreed that at the Common-Law , before this Statute , it was Treason to Kill , or to Compass the Death of the King's Heir , whether Lineal or Collateral ; nay it was held to be Treason in case of any of the King's Children , or Uncle , or other near Relatives , though such were not Next , Immediate , Expectant Heir , but only of the Royal Family , and remote by some Degrees from any appearance of Succession to the Crown . And this is even agreed by Andrew Horne and the Lord Coke themselves , neither of which were such friends to the Crown as to be suspected of flattery or Biass in this particular : Now that this Statute alters not the case is plain , for it is resolved to be an Act declaratory of the Ancient Common-Law , and not introductive of a novelty ; 't is true , it is Abrogatory of all Treasons not therein expressed , and restrains Treason to the particulars which it specifies ; although the words are Eldest Son and Heir , which is to be supposed the first Born , yet it is agreed that if such first Born die without Issue , the second Son , being the Eldest Living , is within this Law , and so of the third Son , which is a construction far from Literal , and yet consented to by all Lawyers that I have read ; now such interpretation of those words ( though this be in some for a Penal Law ) proceeds from the common rule in exposition of Acts of Parliament , even those which are Penal , that those cases which stand upon the same Reason shall be within the same Law , Vbi eadem ratio ibi idem erit jus , be the Law what it will ; where there is the same Identity or Majority of Reason in any case , there ought to be the same Rule ; Besides this is not such a Penal Law as is meant in that rule of Expositions of not being extended by Equity , for those Penal Laws are such only as create new Offences or inflict new Punishments , of which sort you cannot reckon this in question . For if you consider the end and design of this Law , 't was not to either of those purposes , but to declare what things our then Law-makers thought fit to be reckoned and allowed Treason from thenceforward ; then consider the end why those particulars there mentioned were agreed should be Treason for ever afterwards , and the consideration thereof will make this perspicuous , peruse the Act and take it apart or the whole together , and you will find it either to concern the Kings Person , the Kings Heirs , or the Kingly Government , the three Mischiefs designed to be prevented were , Bodily harm to the Kings most Sacred Person , the Extirpation of the Royal Family and Destruction of Kingly Government ; All which three are by this Act expresly provided against ; The third and last in the clauses of Levying War , adhering to the Kings Enemies , Clipping or Counterfeiting Mony or the Great Seal , or Killing any of his Grand Officers there particularised , the Sole Power of making War and Peace , commanding Subjects to assist against Forreign Enemies , ordering and regulating Currant Monies , Custody and Management of the Great Seal of England , and consequently of Pardons , &c. the makeing and removing of all Publick Officers of State and Justice , being some of the Royal Prerogatives of Brittains Monarch : The first is apparent in the first words of this Act , whereby it is made High-Treason so much as to think evil of the King in a Mans Heart ; the second is no less manifest , although some of Republican Principles are unwilling it should be so , and therefore will say it is not so , but 't is as plain as either of the two former which I have mentioned , for that 's the end and reason why 't is High-Treason to compass the Death of the Queen , and the Words are Emphatical , Our Lady his Companion , and their Heir ; Then , which nothing can be more fully expressed ; 't is easie for you further to animadvert on the sense of the Words , and their Coherence ; It not being placed among the Grandees of the Realm as the greatest Subject , but between the King and His Heir ; And Heir surely is the principal thing there intended , and this Statute ( you must needs imagine ) designed by that clause to preserve the Royal Family and maintain the Succession , by providing a security for the Successor from all Danger as to his Person : Now a Collateral Heir is in the same plight and condition in respect of the Kingdom as a Son and Heir ; and to destroy the Brother , may be of as pernicious consequence as to cut off the Son , as is easy for any Man to conceive , by considering the dismal effects which may happen upon either , as the Extirpation of the Royal Family , ( which God forbid ) which was by this Law principally meant to be preserved , and involving the Nation in Blood and War , by rendring the Right of Succession disputable , so that the Mischief that may happen in both Cases , and that was intended to be prevented , is alike and the same . Then that this construction is contrariant to any one rule of Law , I think no Man can affirm ; if any do , I could with much facility evince its consonancy to the rules of Law in other like Cases , even of Statutes meerlyand strictly Penal , by abundance of Books ; But I know you will object that here 's a restrictive Clause . I answer and confess , there is a Proviso , That if any other Case supposed Treason , which is not above specified , &c. but this is specified and sufficiently expressed by the Word Heir , which was the thing chiefly intended , as I shew'd before in the threefold reason of this Act of Parliament ; and a Brother or Nephew that is apparent Heir , being within the same reason and mischief with Son and Heir , which was mentioned , because he is ( where there is such ) the first and next in Succession , and so the chiefest of the kind is named , the rest being meant and intended ( and that in Acts of Parliament 't is common and usual only to mention the first and chiefest , when all manner of Persons of that kind or sort are understood , you know almost an hundred Cases for it then ) the Primogenitus , the Eldest Son , in the first place , then in default of him , the second Son , because then Heir , then in default of him , the third Son , for the same Reason , because Son , then Heir ; and this is agreed to notwithstanding the restrictive Clause , & pari ratione , If no such Son , &c. then Brother or Nephew , when and because next immediate Apparent Heir in being . This construction seems very natural and genuine ; besides that , were it otherwise , the Word Heir would be needless , and stand for a Cypher , for without that Word Heir , 't would have been sufficient to have said Eldest Son , and no more , if no more had been designed by this Clause : Now I think it is a Rule in all Constructions , as well of Statutes as of Wills and Awards , ( those three receiving always one interpretation secundum Intentionem , which the very termination denotes , Parliament , Testament , and Arbitrement ) never to expound them so as any Word shall be void and useless , if all its Words may have a meaning by another Construction ; And here now if Coke's Construction be received , That no Heir is meant but Eldest Son , then 't is as much as if they had said Eldest Son , that is , Eldest Son , and the Word Heir is superfluous , for a Mans Eldest Son is generally reputed Heir : Besides , this Act being in Affirmance of the Common Law , you know the Judges are not bound to that literal , syllabical Construction , as is pretended in this Case ; and the Law against Treasons hath in all ages been construed according to the Rule I mentioned of an identity in the reason and Mischief : As in the Case of Petty Treason , you find in the Books , that if the Servant Kill the Wife of his Master , knowing her to be such , 't is adjudged Petty Treason by all the Judges of both Benches , because there is the same reason for the one as the other , the one hath affiance in him as well as the other , and he ows reverence to them both : So for a Child to Kill Father or Mother , is Petty Treason , because there 's a majority of reason higher then that of a Servant , which is the Submission due from a Son to his Father , and this very branch of this Act hath had the like Construction , as that a Queen Regent is here meant , though literally . She be neither within the Words King nor Queen-consort , yet because She stands under the same reason and is in the same condition with a King in respect of the Kingdom and therefore Construed so , as it was in Case of the late Queens , Mary and Elizabeth ; and so the Eldest son and Heir of a Queen Regent for the same reason . Further , it is observable that the Words are their Heir , and yet it cannot be denied that though such Heir of the King be not Son of the Queen , but Eldest Son by a Consort deceased before He came to the Crown , yet such will be within this Statute , because within the same reason , and the Kings Eldest Daughter ( there being no Son ) is surely within the Law , such being the next in prospect to the Crown : And several other Constructions there are upon this Statute , of persons designed by this Statute , though not literally expressed , because in aequali Statu , as Keeper of the Great Seal being the same in Power and Office with Chancellor , and many more which are obvious in almost every Book : And I can see no reason why such Construction should be admitted upon one part of the Act , and so vehemently denied in this Clause ; thence it seems very plain that a Collateral Heir , is as much within this Act as Son and Heir , for that upon reading of the Statute it appears , the Law-makers designed the Preservation of the Successor under the term Heir , which must be meant to the Crown : So Sacred a respect had our Law-makers in those days to the Divine right of Succession . As for the Distinction of Presumptive and Apparent , it is so idle and trivial that it needs not the least answer , for they are often used promiscuously one for the other , and a Brother whom perchance you will call presumptive Heir is in default of a Son , as much an Heir apparent as any person can be ( when there is such ) there being no intermediate Heir in being , and his Right is as Sacred and Inviolable , and his condition the same in respect of the Kingdom . For that saying of non est haeres viventis , it is of as little consideration in this Case , for though it should be agreed in strictness true , yet the Word Heir suffices to describe the person who is to succeed or inherit by Descent , and in the Civil Law , which Governs in most parts of the Civiliz'd World , is used for him that succeeds to a mans estate , whether he be of the blood or a stranger , whether he be so by Will or Descent . So that it is an emphatical name in this place for to express the person intended by this Law to be kept from violence , even in thought : But some may imagine this is to make Treason against an Heir while a Subject ; You know that to be otherwise , for the Treason is against the King as well in this Case as that of the Queen-consort , and all such Offences are contra ligeantiam debitam Domino Regi ; so 't is in Felony and Murder , though the Act of Violence be an immediate wrong to the Goods or Person of a Subject , yet the offence is against the Kings Peace , Crown and Dignity , for he is interested in the Life and Welfare of his Subjects , and being more especially and personally concerned in those of the Royal Family , the Law hath made such Offence High-Treason ; But perhaps you will object that the consequence of this opinion will be to make Treason uncertain , and that such thing as is so to day , may prove otherwise to morrow , by the Birth of a Son or the like ; I answer that will be no inconvenience to any good Man , for every such never dares to indulge himself in an ill thought of any of the Royal Blood , but besides , 't will be no more so upon this Construction , then in the Case of Eldest Son , who dying , you agree the Second to come in his place within this Law , and the Treason is still the same to Kill or to Imagine the Death of the next and immediate Apparent Heir , be the person who it will , whether Son , Brother , Nephew , Uncle , &c. You may perhaps further object , that this is contrary to the opinion of the Lord Coke , and the Lord Hales ; For Answer thereto I need say no more than that the Reason of Laws , and not Authority , is the Good old Rule , Consulendum & judicandum legibus non dictis ; But however , if you consult Cokes opinion , you will find it very odd in this particular , he saith , If such an Heir Apparent be a Collateral Heir , ( Note here that Coke himself stiles a Collateral Heir to be an Heir Apparent ) he is not within this Law until Declared in Parliament ; i. e. until he be declared Heir , as was Roger Mortimer Earl of March , in Richard 〈◊〉 Second's time . Now how the Declaration in ●●●liament that such a one is Heir Apparent , can make him more within this Law then he was before , I leave you to judge : and if he were within this Law after he was proclaimed next Heir , then surely he was before , for he was as much Heir Apparent before . Then for the Lord Hales , 't is true this opinion is mentioned in his Pleas of the Crown , but in the first Edition thereof it is with a tamen quaere ; but it seems , some disingenuous Dogmatist being of another mind , hath in the second Edition struck out those words tamen quaere , unwilling to let the world know that that Great , Good Man doubted of Cokes opinion in this particular , and in truth it was that tamen quaere made me first consider this matter . So that to draw to an end of this my too tedious Epistle , there seems to me neither authority nor reason against this opinion , which to my present thoughts results most plainly from the consideration of this Statute , and its design , which was to preserve the Sacred Person of the Kings most Excellent Majesty , secondly , the Royal Heir , and thirdly the Kingly Government of this Realm : The second of which includes a Brother or other Collateral as much as Son ; the mischief hereby to be prevented being the same , and consequently the Reason alike in both Cases . Thus I have given you only some rude hints which at present induce me to be for the affirmative in this Question , Praying your thoughts hereupon if you have any thing to offer contrary to what I have said , or in confirmation thereof , if you agree , and to return me the same , and you 'l Oblige Your Humble Servant , &c. S●pt . 29. 1684. FINIS .