Selected quad for the lemma: duty_n
Text snippets containing the quad
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A33897
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Animadversions upon the modern explanation of II Hen. 7. cap. I, or, A King de facto
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Collier, Jeremy, 1650-1726.
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1689
(1689)
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Wing C5241; ESTC R6488
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11,433
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10
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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 though never so loosely Interpreted can do no Service to the present Settlement because it 's vertually repealed by 1 Eliz.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