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A40703 Agreement betwixt the present and the former government, or, A discourse of this monarchy, whether elective or hereditary? also of abdication, vacancy, interregnum, present possession of the crown, and the reputation of the Church of England ; with an answer to objections thence arising, against taking the new Oath of Allegiance, for the satisfaction of the scrupulous / by a divine of the Church of England, the author of a little tract entituled, Obedience due to the present King, nothwithstanding our oaths to the former. Fullwood, Francis, d. 1693. 1689 (1689) Wing F2495; ESTC R40983 47,690 74

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Act of Parliament if any one would break thrô and invade the Government he must be prevented by a Convention or the Foundation of the Government is subverted 8. Lastly The Throne being left empty of an Administrator lately in our own Case and we put into a state of Anarchy and great Confusion upon the late King's Departure Did not every Man that had any sense of our Danger and that is all that were not concern'd in the late methods of our Ruin Did not they see then a plain necessity to meet together and apply to the Author of our Deliverance desiring that he would take upon him the Administration of the Government till the Convention should meet and to give out his Summons for a Convention And was not that Convention regularly peaceably and freely chosen and assembled And what did they do but consider where the Right of the Crown now lay and with the Consent of all Parties as before is noted declare WILLIAM and MARY our King and Queen 9. True as yet they were no Parliament but as soon as there was a Possessor of the Throne the Lords and Commons so freely chosen by the subsequent Consent of the King of Themselves proceed into a Parliament and being so recognize the King and Queen and cause Proclamations thereof to be made throughout the Kingdom Which being done we have a King and Queen de facto and no room left to dispute their Title according to Reason 10. Give me leave to resume the Matter fair and plain All saw a necessity that the great Men should meet and some perhaps that now scruple and desire the Prince of Orange to take the Administration of the Government and summon a Convention and in that Exigence what could they do more seasonable and wisely and how could the Prince proceed more regularly and nearer to our Constitution having the Exercise of the Government than by summoning a Convention Or how could the People transact the Election to represent them more freely and quietly than they did And what had the Convention of Lords and Commons so elected to do but to consider where the next Title to the Crown lay and to declare and recognize the present King and Queen with consent of all parties concern'd as before was observed by which Act of the People of England they took and now have as evident a Possession of the Throne as ever any King of England had 11. I say now especially because since the Declaration of the Convention the Body of the Kingdom in Parliament have solemnly again recognized the present King and Queen and they have been since acknowledged by the People at large by Universal Proclamations throughout the Kingdom Obj. But the Assembly at Westminster may be thought but a Convention still and no Parliament because not at first summon'd by the King's Writs Answ However they truly represent the whole Body of the People and the Representers of the Commons and University of the People together with the Lords all concur'd to the Proclamations of the King and Queen and that 's enough certainly to render the Possession of the Throne by them undoubted besides the Solemnities of it at their Coronations by the usual Methods and all Formalities of Law. But let us consider this matter a little nearer 2. I do not say a Parliament can make it self but methinks 't is evident enough that the Persons elected by the People on purpose to be their Representatives in Conjunction with the Lords whose Right it is to sit in Parliament with the consent of the King sufficiently express'd should have both the matter and form of a Parliament 't is true we cannot conceive a proper Parliament in England without a King in Being or Possession but the Writs before can reasonably be supposed to have no further Influence into the being of a Parliament than only for the orderly Proceeding of the Election and signifying the King's Pleasure to have a Parliament To be short if we find the Name and Power of a Parliament given by the Law to Conventions not chosen by the People if we find the Definition of a Parliament given by a Statute to agree exactly to the present Parliament and lastly if we have a Precedent in the case why should we doubt whether the present be a Legal Parliament First That the Name and Power of Parliament hath been formerly given by Law to Conventions of the great Men and the Community of the People without any Election of the People at all and consequently not chosen upon Writs from the King this the learned Dr. Brady labours much to prove in favour of the Crown before as he saith Parliaments were settled as now they are He saith Colloquium Parliamentum Conference and Parliament were expressive one of another and in those great Conventions sometimes only the great Men of the Kingdom as at Runnemede are called a Parliament sometimes also with them the Communitas Populi but these he saith did not include the common sort much less imply the issuing out of Writs and thereupon the Peoples electing their Representatives p. 72. Answ to Mr. Petit. Whence I argue If a Convention heretofore without the Election of the People upon Writs from the King had the Name of a Parliament and concurred with the King to make Laws binding upon the People certainly now a Convention freely chosen by Summons from a Person that had the Administration of the Government in his hand and was in the place of the King though the late King had call'd in his Writs and left the Kingdom and that Exigence of Affairs could not possibly admit any other Remedy I say such a Convention when allowed by the King doth much rather deserve the Name and challenge the Authority of a Parliament The Argument receives much strength if we consider that now the Election of our Representatives so essential to our Parliaments is the great fundamental Priviledg of the People and consequently the King's Writs to that purpose that we may have frequent Parliaments is the Peoples Priviledg also besides the present King cannot be supposed to suffer any thing in his Prerogative who though in another Capacity did in effect send out such Writs and since he took the Crown hath allow'd the Election upon his own Summons for a Convention to serve in order to their being a Parliament what can be thought wanting to the making them a Parliament The People have their Priviledg and the King his Prerogative and while we have the Substance 't is vain to complain of the want of a mere Formality impossible to be had to the Unsettlement of a whole Kingdom Secondly The Definition of a Parliament agrees well enough with our present Parliament as we have it in 1 K. James the first A Parliament is where all the whole Body of the Realm and every particular Member thereof either in Person or by Representation upon their own free Elections are by the Laws of this Realm deemed to
us that the Testamentary Heir that is one that comes to the Crown by the last King's Will tho not next in Blood is said to inherit But to apply this distinction methinks it doth two great things it first plainly yields the Cause so far as to the necessary descent of the Crown in Proximity of Blood Secondly It gives a shadow at least of Election if not in the People yet in the King if by his last Will he might pass by the next in Blood and name that is properly to chuse another to succeed him in the Throne Besides if this was anciently done both frequently and lawfully where shall we found hereditary Government in the strict sense of it in the Constitution of the Kingdom or how shall we defend it from being in no wise elective Yea if the King himself upon some considerations might chuse his Successor and set aside the next in Blood without wronging him certainly upon great Considerations the like may be done by both the King and People And we find that Testamentary Heirs of the Crown tho they were indeed named by the King are said to be chosen by the People and yet are also said to inherit and if we observe it narrowly we shall easily note that the words Hereditary and Elective with respect to the Government are some-times confounded in History Successione Haereditariâ eligere was no contradiction The Testament of Ethelwoph Florence of Worcester calls it Epistola Haereditaria by which it is said he set aside his own two Sons as the Doctor notes p. 363. where he tells us moreover what the Law of Succession as well as the Practice then was the Saxon Kings saith he might appoint a Brother's Son or a Bastard to succeed them before their own lawful Issue But to come a little closer I may demand where when or how this Maxim that the Crown of England is necessarily annex'd to Proximity of Blood in the Royal Family came to be of the Foundation or Constitution of our Government That it was never made so by Custom or any other Law or by any other means the learned Doctor yields us by his Refuge in a Testamentary Heir I am assured under the hand of a very learned Lawyer who is a great Friend of the Hereditary Monarchy that this Maxim in contradiction to the former the Crown was alienable and devisable was retained and never contradicted until the Resignation of K. John and since that time how hath it been contradicted or denied either in practice or the declared Judgment of the Kingdom It is evident enough what the sense of the King and Parliament was in Henry 8th's time and since in Queen Elizabeth's and since that in our late Parliaments And nothing to the contrary can I think be fairly inferr'd either from that Act of 7 Hen. 4. that limited the Succession of the Crown to his Sons in order and their Issue or that of Hen. 7. that limited to the Heirs male of his Body and no farther Or the Recognition of K. James the first for by that of Hen. 7. it is plain the Parliament thought they had power to limit the Succession otherwise they would not have meddled with it besides they limited it indeed by extending it only to the Issue male of his own Body And as for the Recognition made to K. James it seems to be the clearest and fullest acknowledgment of an hereditary Succession yet we may observe how it is expressed 't is indeed declared that the Imperial Crown did belong to him and his Royal Progeny and Posterity for ever but 't is not said of necessity notwithstanding any Reason to the contrary it shall actually descend to the next in Blood in order for ever Besides they say in the same Act that this their Recognition could not be perfect or remain to Posterity without the King's Consent that is to make it an Act of Parliament And doth not that imply that hereditary Succession of the Crown was not accounted to be fundamental to our Government before For then it would have been perfect in it self without the King's Consent Besides it seems evidently to follow that the Kingdom at that time judg'd that the Succession of the Crown was limitable by Act of Parliament Yet lest after all this I should be mistaken I make this observable from our own Histories that tho sometimes the next in Blood hath been set aside and for ought I find to the contrary upon Reasons of State may be so again yet it seems the Royal Family have Jus ad Rem and have Right thereunto before any other if any Member of the Royal Family are capable of Government so I think we find it generally carried that is when the next in Blood hath been omitted generally some one either really or in pretence of the Royal Family hath been advanced to the Throne This general Right to the Crown by Blood hath been sometimes pleaded by our Kings and allowed by the People and Parliaments but never denied and tho we cannot say the next in Blood hath an uncontroulable and immediate Right beyond all exception to enjoy the Crown tho we cannot find this Right in the constant usage as Common Law and a Fundamental of our Government yet we may grant that in all Turns and Temptations to the contrary the Right of the Royal Family seems to have countenance if not plain and general Acknowledgment and to pass unquestionable with the silent Testimony of many Ages I am sorry to observe with Daniel that before this last Age seldom or never the third Heir in a right Descent enjoyed the Crown of England It cannot be denied but that our Parliaments have frequently concern'd themselves about the Succession and that our Kings both such as came to the Crown by proximity of Blood as well as those that came to it otherwise have often applied themselves to the Parliament not only for their own Security but to limit and qualify the Succession after them Yea further I think it must be granted as one saith smartly enough That 't is a most dangerous thing to have an Opinion prevail that the King in concurrence with his Parliament should not have power to change the direct Order of Succession though the Preservation of him and his People did depend upon it Yet after all this if Common Vsage be Common Law and continued Practice be our Rule of determining this great Point I think the Royal Family have a radical Right in the Government of England and bids fair for an Interest in the Constitution of the Kingdom for it seems to have governed the Disposition of the Crown all along both before as well as since William the first and that generally with our several Kings and Parliaments ever since we had any I shall leave this easy Observation only take notice of two Concessions which I apprehend considerable The first is that of Dr. Br. he saith the Saxon Kings might appoint a Brother's