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that Swear to the new Establishment upon the Principle of Conquest Swear that the Laws of the Old Constitution are no longer in force And that the present Possessors may turn them out of their Freeholds and sell them to the West Indies without any Legal Injustice For when a People are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
relating to Shrewsbury and some others which by parity of Reason supposes the rest in the same Condition all Acts of this Nature were confirmed by the first of Edw. the Fourth which is a good Argument that this Parliament believed the Authority by which they were performed to be Defective and Illegal For we never find any such general Confirmations as these pass upon the Grants of Kings de Iure Fourthly In the First Year of Hen. 7. Ric. 3. was attainted of High Treason in Parliament under the Name of Duke of Glocester Lord Bacon vit H. 7. p. 1004. from whence its plain That as there was no Statute so neither was there any Common Law to support the Title of a King de Facto for Treason is an Attempt against the King's Person his Crown and Dignity but no Man can commit Treason against himself Therefore if Ric. 3. had been a King in the Sense of the Law we may be sure he would not have had such an infamous Censure past upon him after his Death Bradshaw and his High Court of Justice were the First that were so hardy as to pronounce a King of England guilty of Treason Fifthly if this Notion of a King de Facto had been allowed in the 1 H. 7. the Principal Assistants of Ric. 3. would not have been attainted Lord Bacon ibid. for Richard being actually in the Seat of the Government he was according to our modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all Opposers And if so certainly they ought not to be condemned as Traytors for doing their Duty as we find many of those were who fought for King Richard. Sixthly At the end of this Parliament Hen. 7. granted a General Pardon to the common People who had appeared against him in the behalf of Ric. 3. Now Pardon supposes a Fault and the Breach of a Law which they could not have been charged with if the Plea of a King de Facto had been warranted by the Constitution The Consideration of these Things is sufficient to confute that new Notion which is advanced in a late Book The unreasonableness of a Separation c. p. 30. viz. That a King de Facto is in the Sense of our Law no Usurper The Instances of proof are made in the Three successive Henrys Thus this Author But we see unrepealed and unexceptionable Acts of Parliament say the contrary For not to sum up the whole Evidence are not these Lancastrian Princes called pretensed Kings Kings in Deed but not in Right Now what are pretended Kings who have no Right but are rightfully amoved from the Government what are such Kings but Usurpers If the detaining and exercising that Power or Property which by evident Declarations of Law belongs to another be not Usurpation then no Man can be an Usurper but all Titles are alike and there is no such thing as Right and Wrong But possibly this Author thinks the Crown to be Ferae Naturae and that its every Ones that can catch it If so the Parliament 1 Ed 4. was not of his Opinion For they condemn the Proceedings of Henry Earl of Darby as they call Hen. 4. in very sharp Expressions they affirm the Reign of Hen. 6. to be Intrusion and Usurpation They are very positive That he who is an Intruder at First must provided the Right Owners are known be an Usurper ever after and that the Continuation of an Injury cannot alter the Nature of it except it be to heighten the Crime Indeed it would go hard with honest Men if Dominion might be acquired by Injustice and Right depended upon Wrong This Parliament Rot. Parl. 1 E. 4. n. 9 10. c. and that of 1 Iac. 1. though possibly this Author may not think it material fix the Crown upon the Point of Proximity and declare That Ed. 4. and Iac. 1. are rightful Kings of England by virtue of their Lineal Descent by the Laws of God of Nature and those of the Land and that they will repute them and their Heirs for true Kings of England and no other in virtue of their said Right and Title and spend the last drop of their Blood in defence of it This one would imagine is sticking upon the point of Proximity to purpose And yet our Author is pleased to say That a King of England may challenge Obedience though he does not claim by an immediate Hereditary Right pag. 30. Now he that has Allegiance due to him must have the Prerogatives of Sovereignty For the Word Allegiance applied to Kings imports thus much in the Sense of our Laws 11 H. 7. c. So that by Consequence he may be King to all Intents and Purposes without an immediate Hereditary Right i. e. without any Hereditary Right at all For Hereditary Right is nothing but a Lineal Succession to the last Lawful Possessor and therefore it must be immediate in the very Notion of it For where the next in Blood may be Lawfully pretermitted the whole Family may be served so too and consequently can lay no claim to an Hereditary Right But as far as our Author can see our Laws require Allegiance to be paid to a King without such Hereditary Right I am sorry he could not see these Acts of Parliament nor the Oaths of Allegiance and Supremacy for then possibly he would have been of another Opinion There is an excellent Book called The Grand Question which had it lain in this Gentleman's way I believe the Authority and Reason of it would have inlightned him upon this Point For that Great Author proves That an Act made 1 Ed. 3. was not barely Repealed but declared in Parliament to be Unlawful because Ed. 2. was then Living and true King. Rot. Parl. 64. 21 Rich. 2. Grand Quest. p. 80 81. Secondly He takes it for granted between himself and his Adversary That Hen. 4. was an Usurper and consequently that the Repeal of 21 Rich. 2. was not Legally made especially considering Rich. 2. was then Living Id. p. 83. Thirdly He avers That Ed. 3. was an Usurper as long as his Father was Living and the Proceedings of the Parliament under him during that time null and void p. 85 86. And yet it must be granted That Ed. 3. had several Advantages which some Kings de Facto cannot pretend to For 1. He was Heir apparent to Ed. 2. 2. His Father had resigned the Crown though by constraint 3. The Parliament which adhered to him was summoned in Edw. 2. Name 4. There was no Oaths of Allegiance and Supremacy enjoyned the Members of both Houses under the Penalty of nulling every Thing they did by omitting to Swear as there are since by express Statutes 7 Iac. 1. 30 Car. 2. Farther I desire to know of our Author Whether the English of a King de Iure is not one to whom the Government belongs according to the Constitution He grants thus much and affirms That he