Indeed, we are at a loss to know how he himself escaped the conclusion against which he protests so strongly. It may not be true that Charles II was proclaimed in Virginia, as Robertson says, before he had been recognized in England. Mr. Hening (1 Sts. at Large, p. 529, quoted by Bancroft) may be right, when he says, that, if such were the fact, the public records should show it. But his book is full of proof that the records are incomplete. Is there not such proof in this instance? Let us examine.
The first act of the session of March 1660, assumes the supreme power. The second appoints Sir William Berkeley governor, and prescribes that he shall govern according to the "_auncient lawes_ of England, and the established lawes" of Virginia. The third repeals all laws inconsistent with "the power now established;" and the fourth makes it penal to "say or act anything in derogation" of the government thus established.
Here is evidence enough of a _new order_ of things, and yet it is not so very clear what that new order was. Hening says (_ubi supra_) that Berkeley was elected _just as Mathews had been_. Wherein then was the innovation? The recital in the preamble of the act last quoted, (1 Hen. Sts. p. 531) may give a clue to this.
It is there set forth that "it hath been thought necessary and convenient by the present Burgesses of this Assembly, the representatives of the people, _during the time of these distractions_, to take the government into their own power, with the conduct of the _auncient lawes_ of England, till such _lawfull_ commission or commissions appear to us, _as wee may_ DUTIFULLY _submit to, according as by_ DECLARATION SET FORTH BY US _doth_ MORE AMPLY _appeare_."
Now where is this MORE AMPLE DECLARATION, concerning their idea of such a commission as they might DUTIFULLY submit to? Is not here an _hiatus valde deflendus_? Yet such are the tattered manuscripts from which Mr. Hening's compilation is made, that the loss of the whole or a part of any document is quite common.
Enough appears, however, to show that this declaration did not amount to a recognition of Charles as king _de facto_; because the above mentioned Act I, directs that all writs shall issue in the name of the assembly. But it is equally clear that he was, _at least tacitly_, acknowledged as king _de jure_; that the government was established provisionally, and subject to his pleasure; and that the power assumed was held FOR HIM.