Animadversions upon the modern explanation of II Hen. 7. cap. I, or, A King de facto Collier, Jeremy, 1650-1726. 1689 Approx. 34 KB of XML-encoded text transcribed from 5 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2003-09 (EEBO-TCP Phase 1). A33897 Wing C5241 ESTC R6488 12905802 ocm 12905802 95315 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. A33897) Transcribed from: (Early English Books Online ; image set 95315) Images scanned from microfilm: (Early English books, 1641-1700 ; 977:21) Animadversions upon the modern explanation of II Hen. 7. cap. I, or, A King de facto Collier, Jeremy, 1650-1726. 8 p. s.n., [London : 1689] Reproduction of original in Cambridge University Library. Attributed to Jeremy Collier. cf. NUC pre-1956. Caption title. 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. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Great Britain -- Kings and rulers. 2003-06 TCP Assigned for keying and markup 2003-06 Apex CoVantage Keyed and coded from ProQuest page images 2003-07 Mona Logarbo Sampled and proofread 2003-07 Mona Logarbo Text and markup reviewed and edited 2003-08 pfs Batch review (QC) and XML conversion 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 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 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 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 .