who succeeds by proximity of Blood is such a King de Iure Now if a Prince who claims by Descent comes in by the Constitution then he who founds himself upon the Peoples Consent the Author's King de Facto must cross upon the same Constitution and consequently be an Unlawful King. For if the Laws tye the Crown to Succession as they evidently do then a Title drawn from the Peoples Consent is against Law Unless a Kingdom can be Elective and Hereditary at the same time i. e. unless the People may have a Liberty and no Liberty to chuse their King. Now if a King de Facto be neither de Iure nor a Usurper neither a Lawful nor as our Author affirms an Unlawful King then certainly he is no King at all For to aver That there is a Medium between these Two is to say That a Man may have a Title which is neither Right nor Wrong And then sure Aristotle is much to blame for exposing those Philosophers who asserted A Thing might be and not be at the same time For the one is not a greater contradiction in Nature than the other is in Morality Farther this 11 H. 7. though never so loosely Interpreted can do no Service to the present Settlement because it 's vertually repealed by 1 Eliz. by which we are obliged to Swear to be true to the King His Heirs and Lawful Successors i. e. those who have a Right to the Crown by Proximity of Blood. From whence I argue First That if we are Sworn by Act of Parliament to pay Allegiance to the Heirs of a King de Iure who never were in Possession then a Fortiori to a King de Iure who besides the Legality of his Title has been actually recognized as Sovereign and enjoy'd an uncontested Administration of the Regal Power Secondly If our Laws oblige us to Swear subjection to the Heirs c. of a Rightful Prince then by undeniable Consequence we are bound not to translate our Allegiance to those who are unjustly set up by the People For without all Question the Words Heirs and Lawful Successors were made use of on purpose to secure the Hereditary Rights of the Monarchy and to prevent all Usurpations upon the direct Line And since by virtue of the Statute which framed the Oath of Supremacy we are not to acknowledge any pretended Governors to the Prejudice or Disinhersion of the Heirs of the King de Iure then most certainly we ought not to do this in Opposition to the King de Iure himself So that now we have no Pretence to make Right the consequence of Possession in the Crown any more than in other private Cases But supposing this Statute of H. 7. was in full force it cannot be applied to the present Case First Because the Title to the Crown was then somewhat doubtful and intangled at least in the opinion of the People For notwithstanding the Right lay in the House of York yet that of Lancaster had possessed the Throne for Three Decents successively and pretended that Edmund Crouchback under whom they claimed was elder Brother to Ed. 1. The Case therefore being thus disputable and perplex'd with respect to the Multitude this Act as my Lord Bacon observes was made to indemnify the Subject who out of a principle of Integrity had serv'd the Crown it being thought unreasonable that the common People should suffer for their Loyalty They had not an Opportunity of examining Pedigrees and searching Records and therefore it would have been hard if they had been obliged to forfeit their Lives and their Estates only for their being so unfortunate as to pay a well meant Allegiance to a wrong Person And since at that time they were not so well qualified to find out the Right of their Prince it was thought sufficient for them to follow the Solemnities of Pomp and Power and to be exempt from Punishment provided they adher'd to him who was in present Possession But to apply this Statute to a Case where the Title is clear and uncontested is a very Illogical and Dangerous way of Arguing and has as little Warrant from the reason of the Act as from Equity it self It appears sufficiently from the History of those Times that this Act was only intended for the security of H. 7. who had a very lame Title and therefore being made upon a particular and singular occasion it ought not to be extended farther to the prejudice of Equity and Common-Law nor be interpreted in such an extravagant Sence as encourages Treason and Ambition to scramble for the Crown as often as they have any prospect of Succeeding in their Wickedness But Secondly To put the matter out of all doubt I shall prove from the very Words of the Act that it was no more then a Temporary Law and expir'd with the Life of the Prince who made it The Statute begins thus The King our Sovereign Lord calling to remembrance the Duty of Allegiance of his Subjects of this Realm Afterwards the Enacting part follows sc. Those who attend upon the King for the time being and do him true and lawful Service of Allegiance c. shall be secur'd from all manner of Forfeitures and Molestations relating to their Persons or Estates provided always that no Person or Persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance Now we know a Proviso is an Exception or Restraint upon the Latitude and Comprehensiveness of the Law and that all Statutes are perfectly Null so far as the Proviso reaches Having premised this I shall endeavour to prove that this Act was designed only for the security of that Reign in which it was made and cannot be stretch'd any farther To make this appear Let us suppose a Competition between a Prince de Iure and H. 7. i. e. an other de Facto and that the Subject ingages for the latter In this Case if the King de Facto prevails there is no need of the assistance of this Statute for we cannot imagine any Prince could be so Impolitick as to punish those who have ventur'd their All to maintain him in his Government This besides the ingratitude of the Action proclaims the Injustice of his Cause and is the way to ruin his Interest If it be Objected That if it had not been for the Indemnity of this Statute he would have been oblig'd to have punish'd them for opposing their lawful Prince To this I Answer First Do Kings de Facto always perform that which the Laws require If so they would never have been Kings de Facto since they could not make themselves Masters of the Sovereign Power without dispossessing those who are supposed the right Owners of it Secondly The Possessour would not so much as seem obliged to punish his Adherents upon a Competition except he own'd himself to be no more then a King de Facto that is unless he acknowledg'd the Acquisitions of his
ANIMADVERSIONS Upon the Modern Explanation of 11 HEN. 7. Cap. 1. OR A KING de FACTO THough our Gentlemen of the Revolution seem well satisfied with their new Allegiance yet the Reasons if not the Degrees of their Compliance are very different 'T is true there are some few furnished with that variety of Demonstration as to be able to make out the Justice of the late Proceedings from no less than Four infallible Topicks Abdication Forfeiture c. but Men of this Compass of Thought are not commonly met with The more moderate Undertakers are content to maintain a single Post and think themselves well if the Cause will afford them one good Reason for what they do Now in this their Vindication they are no less divided from themselves than from their Neighbours of the old Government Some Men affirm That the Crown was lapsed to the People and that their Representatives have given it to the Prince of Orange by way of Gratitude Others thinking their Consciences not safe in this Bottom tell us That they are either Conquered or Undone and seem Uneasy because they don't argue in Chains In earnest our Circumstances must needs be hard when our best Friends who were so nicely Apprehensive of the least Incroachment desert us at this surprising Rate Who would have thought that these Keepers of the Liberties of England who declaim'd so heartily against Arbitrary Power and gave God solemn Thanks for their Deliverance should reverse their Devotions thus soon plead against Magna Charta and set all their Wits on work to make us as great Slaves as those in Turkey For that this glorious Condition is the Consequence of Conquest is a Truth so obvious to collect that a very little Reasoning will make it undeniable And as if Disputing and Printing against the freedom of their Country were not enough to make all sure they are pleased to ratify their Slavery with an Oath That they do no less is apparent for those that Swear to the new Establishment upon the Principle of Conquest Swear that the Laws of the Old Constitution are no longer in force And that the present Possessors may turn them out of their Freeholds and sell them to the West Indies without any Legal Injustice For when a People are Conquered their Lives and Fortunes lye at the Mercy of the Conquerour This Title makes his Sovereignty absolute and his Will a Law. But I shall take leave of these Submissive Gentlemen and proceed to consider the Arguments for a King de Facto Now it is asserted by some of the Long Robe That Possession of the Throne abstracted from any other Title is sufficient to challenge a full Obedience from the Subject and that the Right of a Lawful Prince expires upon his Dispossession This Opinion is founded upon Sir Ed. Coke's Authority who in his Institutes Part 3. Ch. High Treason maintains That the Word Roi mentioned 25 Ed. 3. is to be understood of a King in Possession though unjustly of the Crown and Kingdom The Grounds of this Conclusion are taken from 11 H 7. c. 1. Now supposing this Act did resolve all Right into Force and was as Extraordinary as some People would make it yet it could secure no more than thē Dominion of England to the present Possessors For First It cannot reach Scotland because it is an independent Kingdom and it has lately declared in Parliament when Duke Lauderdale was High Commissioner that the Prosperity of that Nation has been chiefly owing next under God to the absolute Power and uninterrupted Succession of their Kings So that it is plain a King de Facto has nothing to do there neither has he any better Colour of pretence to the Government of Ireland First For the Reason above-mentioned viz. because Ireland is a separate and distinct Dominion from England as Sir Ed. Coke undeniably proves Calvin's Case p. 22 23. Secondly If it be Objected That the Irish obliged themselves by Poyning's Act to be governed by the Laws of England To this I answer That the Irish bound themselves only to receive those Laws which were then made not such as should be made for the future and therefore that Kingdom is unconcerned with 11 H. 7. in regard it was Enacted a Year after the Statute of Poynings Besides in that Island the King de Iure and de Facto is the same person To return therefore to England I observe First That Sir Ed. Coke in his Notion of the Prerogatives of a King de Facto contradicts himself For in Calvin's Case he tell us That Allegiance and Faith are due to a King by the Law of Nature He must mean a Rightful King for the Law of Nature doth not incourage Injustice and Usurpation Secondly He affirms That the Law of Nature is part of the Law of England and cites Bracton Fortescue c. for this Point And Thirdly That the Law of Nature is immutable Calvin's Case p. 12. From hence I infer That if Allegiance is due to a Rightful King by the Law of Nature if this Law is incorporated into our English Constitution and of an immutable Obligation then it necessarily follows That as long as we have a King de Iure we must be de Iure his Subjects So that by Sir Ed. Coke's Argument It must be unlawful to assign over our Obedience to a Prince de Facto who hath nothing but meer Power to prove his Authority Farther he tells us That Rex de Facto non de Iure is Seignieur le Roi within the Purvieu of the Statutes sc. 25 Ed. 3. which he pretends to prove from 11 H. 7. c. 1. which being the First Authority he cites in confirmation of his Opinion he owns by Consequence That before the making this Statute a King de Facto was not within the Purvieu of 25 Ed. 3. And therefore upon his own Grounds the King for the time being mentioned 11 H. 7. c. 1. must be a King de Iure at least one that was presumed such because at that time the Constitution knew no other For that Possession was not a sufficient Title before 11 H. 7. will evidently appear from these following Remarks First Because we don't find so much as the Name of a King de Facto in our Statutes till 1 Ed. 4. c. 1. where all the Lancastrian Line are declared Kings de Facto but not de Iure in Deed but not in Right pretensed or pretended Kings 1 Ed. 4. c. 1. Secondly Henry the Sixth is said to be rightfully amoved from the Government And his Reign affirmed to be Intrusion and Usurpation and himself attainted for being in Arms against Edward the Fourth Cotton's Abridg. fol. 670 671. Baggot's Case 9 Ed. 4. Thirdly All Patents of Honour Charters and Priviledges which were granted by the House of Lancaster all Acts of Royal Authority which the Kings of England have a Right to execute by vertue of their sole Prerogative nay Acts of Parliament themselves particularly those
Victory Unjust and himself an Usurper but we have neither Example nor Reason to expect such singular Confessions as these For no Usurper will own himself in the Wrong so long as he intends to enjoy the Advantages of his Injustice Upon supposition therefore that the Victory had fallen on the side of a King de Facto the Act would be wholly superfluous But Secondly If the King de Iure had prevailed the matter is not mended For now though those that stood by the King de Facto will have great occasions for an Indemnity yet this Act will be as helpless to them now as it was needless before For either they must submit to the King de Iure or not if they do not submit it 's easie to imagine the consequences how a Victorious and Irresistable Prince will treat the Obstinate and Rebellious Opposers of his Just Title if they do submit as of necessity they must then they can claim no manner of Priviledge and Indemnity from this Act for they cannot come into the side de Iure without deserting that de Facto i. e. without declining their Allegiance to him who was King when this Statute was made By declining which Allegiance the Proviso expressly excludes them from all manner of Benefit or Advantage by this Act. In this condition the Law would have left the de Facto Party If the Sovereignty had been disputed between H. 7. and the House of York and the Prince de Iure or House of York had been Successful From whence it 's undeniably plain that neither the Design nor Words of this Statute can be drawn to such a monstrous Construction as to Enact bare Possession a good Title and make Might and Right the same thing The only design of this Parliament was to continue the Crown to H. 7. during his Life which both by the Body and Proviso of the Act was as effectually done as in them lay Now the reasons that prevailed with the Two Houses to consent to a Temporary alteration of the Constitution with respect to the Crown were probably these 1. Because H. 7. did not openly disavow his Reigning in his Wifes Right who was Queen de Iure for the Act of Parliament by which he was recognized King of England was Interpretable in this Sence Lord Bacon ibid. p. 1003. and with this Construction there was no injury done to the Hereditary Right of the Crown 2. Elizabeth the Queen de Iure by her subsequent Marriage and acquiescence seem'd contented with this Settlement So that her forbearing to claim or in the least to insist upon her Right was a tacit resignation of it to King Henry which seem'd to make him not only de Facto but during her Life de Iure too 3. When this Parliament was called Perken Warbeck had lately made a Descent upon Kent and threatned the Kingdom with a more formidable Invasion Lord Bacon p. 1075 1076. Now though the Two Houses might see through the Imposture yet it 's plain many of the People did not Nay some Persons of great Quality who had better Opportunities for Enquiry believed Perkin to be the true Plantagenet Son to Ed 4. The Parliament therefore who knew him to be no more than a Counterfeit Prince must conclude that the best way to secure the Succession of the Crown was to support the Government of H. 7. which considering the present Scruples and Uncertainties of Right could not be more effectually done than by Indemnifying all those who should afterwards appear for him 4. We are to consider that at this juncture H. 7. had several Children by his Queen viz. Arthur Henry c. So that now the contending Families of York and Lancaster being thus happily United there was no reason to fear That a Security though an unusual one to the present Possessor could be prejudicial to the right Line especially since the force of that Act was confined to the Reign of that Prince as has been already prov'd 5. That this Act was no more than Temporary may be made good from the Practice as well as the Reason of that Law I shall cite the Duke of Northumberland's Case who when he was tryed for Treason for leading an Army against Q. Mary desired to be informed by the Judges Whether a Man acting by the Authority of the Great Seal and the Order of the Privy Council or Prince's Council as Stow and Heylin word it could become thereby Guilty of Treason To which the Judges answered That the Great Seal of one that was not Lawful Queen could give no Authority or Indemnity to those that acted by such a Warrant Burnet's Hist. Reform p. 2. p. 243. Upon which the Duke submitted though without Question he did not want Lawyers to reinforce his Plea if his Case would have born it From whence 1. I infer against Sir. Edw. Coke That Treason lyes against a King de Iure though out of Possession For its plain by all our Historians that Q. Mary was far from being possessed of the Crown when the Duke of Northumberland acted against Her. So far was she from being Regnant that its pretty plain she had no great hopes of Succeeding For when she understood Q. Iane had taken the Government upon her she retired with only a few Suffolk Gentlemen to Framingham Castle near the Sea that she might be ready to embarque for the Security of her Person But I shall insist upon this Corolary no farther though were it necessary it might be proved by other unquestionable Authorities 2. I infer That any Commission or Authority granted by a King de Facto against one de Iure is null and insignificant though it has all other Advantages and Forms which the Law prescribes The only Objection against this Inference is That the Lady Iane was not a Queen de Facto But why not a Queen de Facto Had she not the Colour of K. Edward's Letters Patents and the Concurrence of all the Judges save one to support her Claim Did not a numerous Privy Council several of which were Persons of the first Quality and highest Offices of the Kingdom swear Allegiance to her Heylin's Ref. p. 160. Was she not proclaimed in London and in most of the chief Cities Towns and Places of greatest Concourse Heyl. Ibid. p. 237. Burn. p. 237. Were not the Tower of London and the Land and Naval Forces under her command 'T is true some of them deserted her soon after but this proves they were with her before Did she not assume the Name and State of a Queen and were not the Seals those Dead Springs of the Government in her Custody I grant our Historians agree That her Queenship lasted but Nine or Ten Days but if she had Reigned but so many Hours it had been sufficient to prove the Point in hand For the Essence of a King de Facto consists in Possession and extent of Power not in the length of his Government Besides when the Duke pleaded the Warrant of
the Privy Council and the Great Seal the Judges answered That his Authority was invalid because granted by one who was not Lawful Queen Where we may observe They don't deny her the Name of a Queen but allow it by implication in their Answer And since she was a Queen and not de Iure she must be one de Facto For I have already proved That our Laws take no Notice of any Third Chimerical Monarch distinguished from these Two. We see therefore in the Opinion of the Judges and Court in Q. Marys Reign That the 11 H. 7. cannot indemnify the Subjects for bearing Arms against a Prince de Iure For if it could have been serviceable to the Duke its unimaginable to suppose his Counsel should forget such a remarkable Defence But to bring the Dispute nearer Home and to make the Case more plain if possible Let us suppose 11 H. 7. still in Force and upon this supposition I argue That this Act must necessarily give the same Advantages to the Lawful Successors of H. 7. which it gave to himself For if Allegiance is due to a King de Facto then certainly it is equally due to him who is King both de Facto and de Iure Therefore those who decline from their Allegiance to such a Rightful Possessour as they certainly do who depose him or swear Allegiance to another are expresly bar'd from receiving any Benefit or Advantage by this Act. So that now they must lye under the lash of those antecedent Laws which punish all Disloyal practices against a Rightful Prince whether in or out of Possession and if they are punishable by a King de Iure than undoubtedly they are his Subjects and consequently not at Liberty to translate their Allegiance to another If it is Objected That the Penalty of this Proviso affects the Subject no longer than the King is in Possession To this besides what has been said already I Answer That this Construction makes the sence of the Act Insignificant and Ridiculous For then the meaning of the Law runs thus viz. Those who adhere to the King in Possession shall be Indemnified but those who fight against him shall have none of this Favour that is they shall be punished Be punished by whom Why by the King they Opposed if he happens to sit sure and gets the better of them otherwise it seems they are safe enough Now this is profound Discourse and very suitable to the Wisdom of a Parliament to tell us That Rebels when they are Routed and Subdued may be Lawfully punished Had we not Statutes Common Law and Common Sence enough to acquaint us with this before What need this admirable Discovery have been thus carefully drawn up into a Proviso as if there had been something in the body of the Act which made it Unlawful for a Conquering Prince to chastise Rebellion If it be farther replied that this Proviso was intended for a Recaption For though it does not tye the Subjects Allegiance to an ejected Prince yet upon the recovery of his Crown it gives him Authority to punish those who dethroned him and with this Interpretation the Law appears intelligible In Answer to this I desire to know which way a Prince dispossessed can recover his Right according to the modern Construction of this Act For if the whole Kingdom be bound to assist the King de Facto against the King de Iure how is it possible for the latter to re-enter upon his Dominions And since by the supposition his Right to punish doth not commence till he has Power to execute this Proviso will have little Terror in it and prove a very slender Preservative against Treason And besides if it ever happens to come into play 't will be perfectly useless for this Expedient cannot take place unless the King de Iure makes his way back to the Throne by Conquest and Foreign Force And if he returns with this Advantage there are old Laws enough to punish Traytors 25 Ed. 3. c. which we may imagine he would venture to make use of whether this Clause had given him such a Liberty or not In short This Act as it is now the Fashion to understand it is such a monstrous and unaccountable piece of Legislation as I believe the most Barbarous and Unpolished Nation was never guilty of For it leaves the Kingdom Hereditary and yet obliges the Subject to obey the Possessor though never so obscure and remote from the Royal Line It resolves all Title into Force and Success and puts no difference between a good Cause and a bad one It sets the best Princes aside only for being Unfortunate encourages the Ambition of Enterprizing and unreasonable Men and gives the Rights of Sovereignty to those who have done the greatest Wrong It overthrows the most Sacred and Established Maxims of Justice repeals in effect almost half the Commandments and makes the Devil if he should prevail the Lord 's Anointed Besides it s not only Unnatural and Unrighteous in the Body but Useless and Impertinent in the Proviso In earnest I am afraid those Lawyers who debauch Mens Understandings with such singular Absurdities as these will have a great deal to answer for God grant they may consider before its too late FINIS