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 S in Fleetstreet. 1685.   

A LETTER TO A Lawyer, etc.  
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, etc. 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 Public 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 myself 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 Horn and the Lord Coke themselves, neither of which were such friends to the Crown as to be suspected of flattery or Bias in this particular: Now that this Statute altars 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; 'tis 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, 'twas not to either of those purposes, but to declare what things our then Lawmakers 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 King's Person, the King's 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 expressly provided against; The third and last in the clauses of Levying War, adhering to the King's Enemies, Clipping or Counterfeiting Money 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 Foreign Enemies, ordering and regulating Currant Monies, Custody and Management of the Great Seal of England, and consequently of Pardons, etc. the making and removing of all Public Officers of State and Justice, being some of the Royal Prerogatives of Britain's 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 Man's 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 'tis as plain as either of the two former which I have mentioned, for that's the end and reason why 'tis 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; 'tis easy 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 rendering 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, etc. but this is specified and sufficiently expressed by the Word Heir, which was the thing chiefly intended, as I showed 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 'tis 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, than Heir; and this is agreed to notwithstanding the restrictive Clause, & pari ratione, If no such Son, etc. 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 cipher, for without that Word Heir, 'twould 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 'tis as much as if they had said Eldest Son, that is, Eldest Son, and the Word Heir is superfluous, for a Man's 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, 'tis 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 owes reverence to them both: So for a Child to Kill Father or Mother, is Petty Treason, because there's a majority of reason higher than 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 King's 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 Lawmakers designed the Preservation of the Successor under the term Heir, which must be meant to the Crown: So Sacred a respect had our Lawmakers 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 Civilised World, is used for him that succeeds to a man's 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 'tis 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 King's 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, 'twill 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, etc. 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 Coke 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 styles 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 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, 'tis 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 Coke 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'll Oblige  
Your Humble Servant, etc. S●pt. 29. 1684.  
FINIS.