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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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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