The Authority given by our Law to the Acts performed by a King de facto, detract nothing from the people's right of creating whom they please.

THEY who have more regard to the prevailing power than to right, and lay great weight upon the statute of Henry the seventh, which authorizes the acts of a king de facto,[1] seem not to consider, that thereby they destroy all right of inheritance; that he only is king de facto, who is received by the people; and that this reception could neither be of any value in itself, nor be made valid by a statute, unless the people, and their representatives who make the statute, had in themselves the power of receiving, authorizing and creating whom they please. For he is not king de facto who calls himself so, as Perkin or Simnel, but he who by the consent of the nation is possess'd of the regal power. If there were such a thing in nature, as a natural lord over every country, and that the right must go by descent, it would be impossible for any other man to acquire it, or for the people to confer it upon him, and to give the authority to the acts of one, who neither is nor can be a king, which belongs only to him who has the right inherent in himself, and inseparable from him. Neither can it be denied, that the same power which gives the validity to such acts as are performed by one who is not a king, that belongs to those of a true king, may also make him king; for the essence of a king consists in the validity of his acts. And 'tis equally absurd for one to pretend to be a king, whose acts as king are not valid, as that his own can be valid if those of another are; for then the same indivisible right which our author, and those of his principles assert to be inseparable from the person, would be at the same time exercised and enjoyed by two distinct and contrary powers.

Moreover, it may be observed, that this statute was made after frequent and bloody wars concerning titles to the crown; and whether the cause were good or bad, those who were overcome, were not only subject to be killed in the field, but afterwards to be prosecuted as traitors under the colour of law. He who gained the victory, was always set up to be king by those of his party; and he never failed to proceed against his enemies as rebels. This introduced a horrid series of the most destructive mischiefs. The fortune of war varied often; and I think it may be said, that there were few, if any, great families in England, that were not either destroy'd, or at least so far shaken, as to lose their chiefs, and many considerable branches of them: And experience taught, that instead of gaining any advantage to the publick in point of government, he for whom they fought, seldom proved better than his enemy. They saw that the like might again happen, tho the title of the reigning king should be as clear as descent of blood could make it. This brought things into an uneasy posture; and 'tis not strange, that both the nobility and commonalty should be weary of it. No law could prevent the dangers of battle; for he that had followers, and would venture himself, might bring them to such a decision, as was only in the hand of God. But thinking no more could justly be required to the full performance of their duty to the king, than to expose themselves to the hazard of battle for him; and not being answerable for the success, they would not have that law which they endeavour'd to support, turned to their destruction by their enemies, who might come to be the interpreters of it. But as they could be exempted from this danger only by their own laws, which could authorize the acts of a king without a title, and justify them for acting under him, 'tis evident that the power of the law was in their hands, and that the acts of the person who enjoyed the crown, were of no value in themselves.

The law had been impertinent, if it could have been done without law; and the intervention of the parliament useless, if the kings de facto could have given authority to their own acts. But if the parliament could make that to have the effect of law, which was not law, and exempt those that acted according to it from the penalties of the law, and give the same force to the acts of one who is not king as of one who is, they cannot but have a power of making him to be king, who is not so; that is to say, all depends entirely upon their authority.

Besides, he is not king who assumes the title to himself, or is set up by a corrupt party; but he who according to the usages required in the case is made king. If these are wanting, he is neither de facto nor de jure, but tyrannus sine titulo. Nevertheless, this very man, if he comes to be received by the people, and placed in the throne, he is thereby made king de facto. His acts are valid in law; the same service is due to him as to any other: they who render it are in the same manner protected by the law; that is to say, he is truly king. If our author therefore do allow such to be kings, he must confess that power to be good which makes them so, when they have no right in themselves. If he deny it, he must not only deny that there is any such thing as a king de facto, which the statute acknowledges, but that we ever had any king in England; for we never had any other than such, as I have proved before.

By the same means he will so unravel all the law, that no man shall know what he has, or what he ought to do or avoid; and will find no remedy for this, unless he allow, that laws made without kings are as good as those made with them, which returns to my purpose: for they who have the power of making laws, may by law make a king as well as any other magistrate. And indeed the intention of this statute could be no other than to secure men's persons and possessions, and so far to declare the power of giving and taking away the crown to be in the parliament, as to remove all disputes concerning titles, and to make him to be a legal king, whom they acknowledge to be king.

[1] [11 Henry VII, ch. 1.]

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