the establishing of the succession and prouiding that the Realme should not be left void of a Gouernour And therefore we must not subuert the statute in cauilling for the defect of the Kings hand forasmuch as the Parlament might haue had authorised his consent only without any hand writing Which as I doe not denie so in these great affaires and so ample a commission in suche absolute authoritie geuen to him it was prouidently and necessarily foresene to binde the Acte to the Kings owne hand for auoyding al sinister and euil dealing the whiche the Aduersaries would haue vs in no case to misdoubt or mistrust in this Wil. Whereas the notoriousnes of the fact and the lamētable euent of things do openly declare the same and pitifully crieth out against it Neither wil we graunt to them that the minde and purpose of the Parlament is satisfied for such causes as we haue and shall hereafter more largely declare And if it were otherwise true yet doth this only defect of the Kinges hand breake and infringe the whole Acte For this is a statute correctorie and derogatorie to the common course of the Lawe as cutting away the successiō of the lawful and true inheritours It is also as appeareth by the tenour of the same a most greuouse penal Law and therfore we may not shift or alter the wordes of the law Neither may we supply the māner and doing of the Acte prescribed by any other Acte equiualent So that albe it in some other thing the Stampe or the Kinges certaine and knowen consente may counterpaise his hande yet as the case standeth here it wil not serue the turne by reason there is a precise order and forme prescribed and appointed Wherfore if by a statute of a Citie there be certaine persons appointed to do a certaine acte and the whole people do the same acte in the presence of the the said persons the acte by the iudgement of learned Ciuilians is vitious and of no valewe yea though the reason of the lawe cease yet must the forme be obserued For it is a rule and a Maxime that wher the law appointeth and prescribeth a certaine plat forme whereby the Acte must be bound and tyed in that case though the reason of the law ceasse yet is the acte voyd and naught And whereas the Aduersaries obiecte against this rule the Parlamentes made by Queene Marie without the vsual style called and somoned this obiection may sone be answered For it may sone appeare to all them that reade and pervse the said statute of Anno 35. Henrici octaui conteining the said style that by any especial wordes therin mentioned it is not there limited and appointed that the forme of the style therin sette foorth should be obserued in euery Writ And therfore not to be cōpared vnto the said statutes of 28. and 35. Henrici octaui wherein by special wordes one expresse forme and order for the limiting of the succession of the Croune by the King is declared and set forth Bysides that the said Writtes being made both according to the auncient forme of the Regester and also by expresse commaundement of the Prince vtterly refusing the said style could neither be derogatorie to the said Queenes Maiestie and her Croune nor meaning of the said statute Cōcerning the said style and for a final and sul answere vnto this matter it is to be noted that the Writts being th'Actes of the Court though they wante the prescript fourme set foorth either by the common lawe or statute yet are not they nor the iudgements subsequēt thervpon abated or voide but only abatable and voidable by exception of the partie by iudgemente of the Courte For if the partie without any exception doo admitte the forme of the said Writte and pleade vnto the matter whervpon the Court doth procede then doth the Writte and the iudgement therevpon following remaine good and effectual in lawe And therefore admitting that the said statute of 35. H. 8. had by special wordes appointed the said style to be put in euery Writte and that for that cause the said Writtes of Somons were vitious wanting their prescript forme yet when the parties vnto the said Writtes had admitted them for good both by their electiō and also by their appearence vpon the same the law doth admit the said Writtes and al actes subsequent vpon the same to be good and effectual And yet this maketh no prouffe that therfore the said supposed Wil wanting the prescript order and fourme should likewise be good and effectual in law For as touching specialties estates and cōueiances or any other external acte to be done or made by any person whose forme and order is prescribed either by the cōmon law or by statute if they want any part of their prescript forme they are accōpted in law to be of no validitie or effect As for example the law doth appoint euery Specialtie or Deede to be made either in the first person or in the third person Therefore if part of a Deede be made in the first person and the residue in the thirde person that Dede is not effectual but void in the law Bysides that the law hath appointed that in euery Deede mention should be made that the partie hath putto his Seale to the same If therefore any Deede doth want that special clause and mention although the partie in deede hath put his Seale vnto the same yet is that Dede or Specialtie void in law So likewise the law geueth authoritie to the Lorde to distraine vpon the land holden of him for his rentes and seruices dewe for the same And farther doth appoint to carie or driue the same distresse vnto the pound there to remaine as a gage in law for his said rents and seruices If the Lord shal either distraine his Tenāt out of his Fee or Seignory or if he shal labour and occupie the Chatles distrained the distresse so takē by him is insurious and wrongful in law forasmuch as he hath not done according to the prescribed order of the law The statute made An. 32. H. 8. geueth authoritie vnto Tenant in taile and to others being seased of land in the right of their wiues or Churches to make leases of the same Wherin also a prescript order and forme for the same is set foorth If any of the said persons shal make any Lease wherin he doth not obserue the same prescribed order in all pointes the same Lease is not warranted in any point by the said statute Likewise the statute made in Anno 27. Henrici octau◠of Bargaines and sales of land appointeth a forme and order for the same that they must be by writing indēted sealed and enrolled within six monethes next after the dates of the same writings If any bargaine and sale of land be made wherein any of the thinges appointed by the said statute are omitted the same is vitious and voide in the lawe So
and defende him against al men that would then after challenge or pursue him as guiltie of the said crime The wihch their doings the Queene considering and fearing dangers imminent and withal calling to mind the sundry and diuers vprours and seditiōs already made against her the wretched and most cruel murther of her Secretarie in her own presence the late strāge and miserable murther of her husbād the distresse the discomforte and desolation wherein she was presently bewrapped the Earles actiuitie in Martial feates and the good and faithful seruice done by him to her mother and to her self fearing some new and fresh sturre and calamitie if she should refuse her Nobilities request though very circūspect and naturally prudent in al her other doinges yet neuerthelesse a woman and especially neuer to that houre ones admonished either opēly or priuately after the Earles acquital that he was guiltie of the said fact nor suspecting any thing therof yelded to that to the whiche these craftie colluding seditious heads and the necessitie of the time as then to her seemed did in a maner enforce her Let them now lay on lode let them now rage and raue against this acquital and mariage let them lie to their owne shame vpō their owne deuifes and doinges thereby to defame their Queene Let them lie that the Erle of Huntley was restored to his fathers patrimonie to procure his sisters consent to the diuorse betwene th' Erle and her which restitution was made not for that cōsideratiō but by cause the Queene thought in her cōscience his father wrongfully cōdemned Let them crie out vpō th' Earle Bothwel for that the sentēce of diuorse was promulged partly by force partly without the iust and vsual order of the law and without sufficiēt proufs Let them cry out vpō him for his violēt taking and deteining the Queene Yet if they cā not precisely proue the Quenes consent to any of his vnlawful actes as hitherto they were neuer able to do then can they not get or gather any iust occasion which is the thing they only seeke for to suspect the Queene of this greuous acte On th' other side it is wel knowē and easy to be proued that this faction did chiefly procure as we haue said aswel the acquital as the supposed mariage and therfore by likelihod was priuie of all other consequent deuises and practises Wherefore they do nothing but blow out and blase to the worlde with their owne foule filthy mouthes their own shame and doe fare like a man that doth thrust a sworde through both his owne sides to pricke a litle and raise but the outward skinne only of his enemie Ye may now wel perceaue gētle Reader that hitherto they haue produced litle matter of credit against their Quene and yet as it appeareth very good matter against them selues and for their owne discredit Nowe may ye therefore easely coniecture and by these their chiefe and principal matters and groundes easely perceaue what accompt is to be made of al the residue of their lewde slanders and what smal force and strength al their whole sayinges do beare They see it they see it wel inough themselues good Reader whereby they wel perceaue and fully vnderstand that they altogether are vnable to beare out and mainteine by reason iustice or law these their outragious and seditious procedinges And therefore they set vpon them the best colour and countenance they can Wherein you shal nowe heare what they did alleage being in England for them selues They say that no man can charge them or the residue of their Nobilitie that they haue gone as much as one onely step from the office and dutie of good subiectes in taking armes against the outragious enormities already committed and to preuent the great dāgers imminēt to the persons of their Queene and her dere sonne to their Nobilitie and to the whole state of their weale publike And that it was no smal harts grief to them to heare what vilanie al Nations thought and openly spake of them for suffering such a Tragical matter to scape vnpunished which thing ingendreth of vs say they among strangers and al forain Nations an ill and sinister opinion of some common consent thereto made by our whole Nobilitie Yea to see also the very Executour thereof him selfe by violent force to take deteine and kepe his and their Souereigne and with mariyng with her to disteine her honour Wherfore to set her Maiestie at freedom out of his bondage to preserue her honour and the personne of her sonne and by due punishment of suche a malefactour to recouer their good name and estimation with the rest and quietnes of their Cōtrey when they had but in vaine attempted aswel al other meanes as by the offring to the Earle singuler battail they were driuen to gather force to resist them who came to the fielde against them with a strong army But he refusing either to wage singuler battail which was then offered to him or to ioyne in battail with their cāpe escaped by flight The Queene in the meanewhile rendred herself into the Nobilities hands there assembled and by them was conueied to Edēborough but afterward they were of very necessitie compelled to sequester her vntil such time as some remedie might be found for these maters into Lochleuē Wher she hauīg now aduised with her self and fully perceued her owne disabilitie to susteme the weight of so great a roome frely and volūtarily by their saying gaue ouer the Croune to her sonne appointing the Earle Murray being at that time out of the Realme to be Regēt therof during her sonnes minoritie Th' Earle Bothwel not long after being by them pursued fled the Realme to escape their handes Now this said resignation by the Queene ones made to her sonne he was forthwith by them solemnly crouned and he as King the Earle Murray as Regent obeyd and the state of both these Regimēts was by Acte of Parlamēt established Whervpō quietnes began to encrease and iustice more and more daily to take place which yet some persons sai thei much enuiyng at to the disturbāce of the same and of the kings authoritie first practised contrary to the said their Acte of Parlament the Queenes deliuerance out of Lochleuen and then shewed them selues in armes But as their attēpt say they was vnlauful so the victory fel against them on our the righteous side Whereby God him self semeth to haue geuē sentēce for the equitie of our whole cause against our Aduersaries These are the principal allegations that these good men haue proposed for the iustification of their proceedinges against the Quene before the Cōmissioners of Englād Finally they say that the moste parte of them selues are for particuler benefits priuately so muche beholding to their said Quene that a number of them could be cōtēted and wel willing if they might preserue Scotland in the state of a Kingdome preseruing also the professiō of true religion with the Kinges person
whole Realme or with the minde purpose and intente of the said Parlament that the King should not onely frustrate and exclude suche whose right by the common lawe is moste euidente and notoriouse but call and substitute suche other as by the same lawe are plainely excluded In consideration whereof many notable Rules of the Ciuil lawe doo concurre First that who soeuer geueth any man a general authoritie to do any thing seemeth not to geue him authoritie to do that thing which he would not haue graunted if his minde therein had bene seuerally and specially asked and required Againe general wordes either of the Testatours or of suche as make any contract and especially of statutes touching any persons to doe or enioy any thing ought to be restrained and referred to hable mete and capable persons only It is further more a rule and a Principle that statutes must be ruled measured and interpreted according to the minde and direction of the general and common lawe Wherefore the King in limiting the succession of the Croune in this sorte as is pretended seemeth not to answere and satisfie the expectation of the Parlament putting the ease there were any such surmised impediment as also on the other side likewise if there were no such supposed impedimēt For here an other rule must be regarded whiche is that in Testaments Contractes and namely in statutes the generalitie of wordes must be gently and ciuilly moderated and measured by the common law and restrained when so euer any man should by that generalitie take any dāmage and hurte vndeseruedly Yea the Statute shal rather in that case ceasse and quaile and be taken as void As for example it appereth by the Ciuil law that if it be enacted by statute in some Cities that noman shal pleade against an Instrument no not the Executour yet this notwithstanding if th'Executour make a true and perfect Inuentarie of the goodes of the Testatour if he deale faithfully and truely rather then he should wrongfully and without cause paie the Testatours debt of his owne he may come and pleade against the Instrument Wherefore the Kinges doings seeme either muche defectiue in the said Ladie Francis and Ladie Elenour or much excessiue in their children And so though he had signed the said Wil with his hand yet the said doings seme not cōformable to the mind and purpose of the Parlamēt We wil now go forward and propound other great and graue cōsiderations seruing our said purpose and intent Whereof one is that in limiting the Croune vnto the heires of the bodie of the Ladie Francis the same Ladie then and so long after liuing the said King did not appoint the Succession of the Croune according to th' order and meaning of the honourable Parlament forasmuch as the said Acte of Parlament gaue to him authoritie to limite and appoint the Croune to such person or persons in reuersion or remainder as should please his Highnes Meaning thereby some person certaine of whom the people might haue certaine knowledge and vnderstanding after the death of King Henrie the eight Which persons certaine the heires of the Ladie Francis could not by any meanes be intended forasmuch as the said Ladie Francis was then liuing and therfore could then haue no heires at al. By reason wherof the people of this Realme could not haue certaine knowledge and perfit vnderstanding of the Succession according to the true meaning and intent of the said Acte of Parlament But to this matter some peraduenture would seeme to answere and say that although at the time of the said King Henries death the Heires of the bodie of the said Ladie Francis begotten were vncertaine yet at suche time as the said remainder should happen to fal the said heires might then certainly be knowen In deede I wil not deny but that peraduenture they might be then certainly knowen But what great mischieffes and inconueniences might haue ensewed and yet may if the Wil take place vpon that peraduenture and vncertaine limitation I would wishe all men well to note and consider It is not to be doubted but that it might haue fortuned at such time as the remainder shuld happē to fal to the said heires of the Ladie Frācis the same Lady Frācis should then be also liuing who I pray you then should haue had the Croune Paraduēture ye wold say the heires of the body of the Ladie Elenor to whō the next remainder was apointed Vndoubtedly that were cōtrarie to the meaning of the said supposed Wil forsamuch as the remainder is therby limited vnto the heires of the body of the Ladie Elenour only for default of issue of the Ladie Francis. Wherby it may be very plainly gathered vpō the said supposed Wil that the meanīg therof was not that the childrē of the Lady Elenour should enioye the Croune before the children of the Lady Francis. But what if the said Ladie Elenour had ben then also liuing which might haue happened forasmuch as both the said Ladie Frācis and Ladie Elenour by common course of nature might haue liued longer then vntil this day who then should haue had the Croune Truly the right Heyre whome this supposed Wil meante to exclude so long as there should remaine any issue either of the body of the said Ladie Francis or of the bodie of the said Ladie Elenour lawfully begotten And therefore quite contrarie to the meaning of the said supposed Wil. Wherfore I doe verely thinke that it would hardly sinke into any reasonable mans head that had any experience of the great wisdom and aduised doings of King Hēry the eight about other matters being of nothing like weight that he would so slenderly and so vnaduifedly dispose the successiō of the croune whervpon the whole estate of this Realme doth depend in suche wise that they to whom he meant to geue the same by his wil could not enioye it by the lawe Wherevpon ye may plainely see not only the great vnlikelihod that King Hēry the eight would make any such Wil with such slender aduise but also that by the limitation of the said Will the succession of the Croune is made more vncertaine and doubtful then it was before the making of the said Actes of Parlament Which is cōtrary to the meaning and intent of the said Actes and therfore without any sufficient warrant in law But peraduenture some here wil say that although these dangers and vncertainties might haue ensewed vpon the limitation of the said wil yet forasmuch as they haue not happened neither be like to happē they are therefore not to be spoken of Yeas verely it was not to be omitted For although these things haue not happened and therefore the more tolerable yet forasmuch as they might haue happened by the limitation of the said supposed Wil cōtrary to the meaning of the said Actes the Wil can not by any meanes be said to be made according to the meaning and intent of the makers of
But see I pray you the impudencie of these men and consider how much it is to be mused and merueled at who are not ashamed to publish by open Edictes and ProclamatioÌ„s that the Prince should be in more securitie and safegarde vnder the protection and keeping of the Regent and vsurping Rebelles then vnder the haÌ„des and bringing vppe of his owne most natural and deare mother with diuers other like vnnatural ridiculous and absurd propositions God blesse him and graunt him no worse to speede then this most tender and louing mother daily wisheth and coÌ„tinually praieth for Who good swete babe if he had age and discretion to vnderstand their dooings would geue the Earle Murray and his fellowes but colde thankes for the intruding of him against his good mother vnto the Croune and gouernment of the realme but would and might wel say that this was but a colour vnder his shadow to strengthen him the said Earle against his good mother and perchance against his owne selfe to His owne vnnatural Coronation also though these men much bragge it solemnly and orderly to haue proceded he would as much mislike Neither would he buye it so deare nor come foorth to be a King so vnnaturally as the Vipers enter into the world eating and gnawing out the mothers woÌ„be He would demauÌ„d and aske what a straÌ„ge newe found solennitie and fond manner of Coronation this was For the matter being of so great and weighty importance of one hundred Earles Bisshoppes and Lordes and moe that haue voice in Perlament wherof al or the more parte of them should haue an agreement liking and consent as to al other so to these publike doinges also there were no more present but fower Earles onely wherof the most honourable had not the souenth or eigth voice in the ParlameÌ„t among the Earles nor yet the first of twenty voiceâ— among al the States Ye had farther but six Lordes who also were such as had laied their violent handeâ— vpon their Quene afore and put her in prison And least al should be voide if they should seme to lacke their ful CongregatioÌ„ of the Spiritualitie and Temporaltie in leapeth me one Bisshop and two or three Abbats and Priors But yet were ther not soleÌ„ne Protestations I pray you then openly made and authentical Instrumentes thereof made also that whatsoeuer was that day done eâ—ther for the Coronation or inuesting of the King or for the establishing of a Regent or otherwise against the Queenes Royall estate and personne it should not be to her in any point hurtful or preiudicial as being then violently deteined and imprisoned Wel you wil alleage peraduenture that al these procedinges were ratified and confirmed by acte of Parlament Yet al this not withstanding this Noble Impe if he were at ripe yeares would no doubt acknowledge and allowe no suche disordered Parlament but would enquire of you what â—uthoritie you had to cal and sommon the said Parlament He would say that the ratifiyng of the said dimission of the Crouno by his mother is not allowable or to be approued First by cause she was then in prison and not at her owne libertie Next by cause it was done by violence and forced with feare of life and so whatsoeuer was builded vpon this foundation being of such weakenes and so vnstable could neuer be firmly and surely established and corroborated He would farther say that diuerse of the chiefe and most principal among the Nobilitie namely the Earles of Argile and Huntley with the Lorde Harris would not in any wise accorde or agree thereto otherwise then it should stand with the Queenes voluntarie wil voide and free from al manner threatninges force and violence Whereof they did ful earnestly and solemnly protest requiring their Protestations to be enacted and recorded He would moreouer say that he could in no wise wel like of that Parlament that should so dishonour his owne good mother and make her to be an infamous Princesse hauing none other ground and proufe to leade them to do so but only a few vncertaine ghesses and vnknoweÌ„ obscure letters He would no doubt for al these mennes vayne bosting and bragging of Iustice and quietnes most teÌ„derly lameÌ„t and wofully bewaile the miserable and pitiful case and dolorouse state of that sely poore ragged and rent Realme the wretched and infinite robberies and spoiles committed and done vpoÌ„ the true loial subiects thereof being daily most greeuousty oppressed and shamefully murthered and the whole Realme so meruelously maymed that the very outward enemie doth sore lament to see it or heare thereof and that wil be wondered at of all the posteritie so long as the world doth stand He would yet say that in case there had bene no iniurie offered either to his mother or to any other he would not such miserâ—e should through him or vnder his name be caused or occasioned though he might purchase thereby the greatest Empire in the world Thus may euery man see and perceaue how dishonourable and how disloyal your actes and doinges haue bene and also how disagreable to your sayings protestations and pretenses For ye pretended at your first seditious motion as we haue declared the Queenes libertie and honour and that ye would duely and faithfully serue her which your seruice what it was let your doings declare Ye make pretense that ye toke armes chiefly for the apprehension of the Earle Bothwel and yet ye dismissed and let him go being present and neuer but long after and coulorably sought him Ye pretended the quietnes and peaceable gouernement of the Realme But the Realme was neuer these many hundred yeares so disquieted and turmoyled with so sore stormes and blustering tempests Ye pretended at your first inueiyng and conference against your said Maistresse before the Commissioners of England that she finding her selfe vnable and vnmete to rule and gouerne her Realm and subiects voluntarily yelded vp and surreÌ„dred the Croune But the contrary is most appareÌ„tly knowen yea you your selues about two monethes after quite forgetting your first allegations say that the States of the Realme of ScotlaÌ„d depriued and deposed her At what time ye also made solemne hypocritical and cloked protestations how loth you were to publish and detect any matter to her dishonour Wherto might be replied against you aswel the rule of the law that Protestatio coÌ„traria facto non releuat as also the old prouerb Crotodili Lachryâ—â—a the false traiterous teares of the hypocritical Crocodile Fie therefore and out vpon these your Crocodile teares whereby you would perswade and make the world beleue that you wold redeme and saue her honor with your perpetual bannishment And as for the religion ye speake of it were much to be merueled and sore to be pitied if it could not be mainteined and borne out without suche soule dishonest and outragious meanes and shifts But al this your great feare least that ScotlaÌ„d otherwise shuld not be able to haue and beare
those bookes And yet ye are not ashamed to note them as sufficient authorities for the maintenance of your euil purpose and intēt But as ye would seeme to vnderstand that your rule of dishabilitie is a general Maxime of the law so me thinketh ye should not be ignorant that it is also as general yea a more general rule and Maxime of the lawe that no Maxime or rule of the lawe can extende to binde the King or the Croune vnlesse the same be specially mentioned therein as may appeare by diuerse principles and rules of the lawe which be as general as is your sayd supposed Maxime and yet neither the King nor the Croune is by any of them bound As for example it is very plaine that the rule of the Tenante by the Curtesie is general without any exception at al. And yet the same bindeth not the Croune neither doth extende to geue any benefitte to him that shal marie the Queene of England As it was plainely agreed by all the lawiers of this Realme when King Philippe was married vnto Queene Marie although for the more suertie and plaine declaration of the intentes of King Philippe and Queene Marie and of al the states of this realme it was enacted that King Philip should not claime any Tytle to be Tenaunt by the Curtesie It is also a general rule that if a man dye seased of any landes in Fee simple without issue male hauing diuerse daughters the lande shall be equally diuided amonge the daughters Which rule the learned men in the lawes of this Realme agreed vpō in the lyfe of the late noble Prince Edwarde and also euery reasonable mā knoweth by vsage to take no place in the succession of the Croune For there the eldest enioyeth al as though she were issue male Likewise it is a general rule that the wife after the decease of her husband shal be endowed and haue the thirde parte of the best possessions of her husband And yet it is very clere that any Queene shal not haue the thirde parte of the landes belonging to the Croune as appeareth in 5. E. 3. Tit. praerogat 21. E. 3.9 28. H. 6. and diuers other bookes Bysides that the rule of Possessio fratris beinge generall neither hath bene or can be stretched to the inheritance of the Croune For the brother of the half blood shal succede and not the sister of the whole blood as may appeare by Iustice Moile as may be proued by King Etheldred brother and successor to King Edward the Martyr and by King Edwarde the Confessour brother to King Edmunde and diuers other who succeded in the Croune of England being but of the halfe blood As was also the late Queene Marie and is at this presente her sister who both in al recordes of our lawe wherein their seueral rightes and titles to the Croune are pleaded as by daily experience aswell in the Exchequer as also in all other Courtes is manifest doe make their conueiance as heires in blood th' one to the other which if they were cōmon or priuate persons they could not be allowed in lawe they as is wel knowen being of the halfe blood one to the other that is to wit begotten of one father but borne of sundrie mothers It is also a general rule in the lawe that the executour shal haue the good and Chattles of the testatour and not the heire And yet is it otherwise in the case of the Croune For there the successour shal haue them and not the executour as appeareth in 7. H. 4. by Gascoine It is likewise a general rule that a man attainted of felony or treason his heire through the corruption of blood without pardon and restitution of blood is vnable to take any landes by discente Whiche rule although it be general yet it extendeth not to the discente or succession of the Croune although the same Attainder were by acte of Parlamente as may appeare by the Attainder of Richarde Duke of Yorke and King Edward his son and also of King Henry the seuenth who were attainted by acte of Parlament and neuer restored and yet no dishabilitie thereby vnto Edwarde the fourth nor vnto Henry the seuenth to receaue the Croune by lawful succession But to this you would seeme to answere in your said booke saying that Hēry the seuenth notwithstanding his Attainder came to the Croune as caste vpon him by the order of the lawe forasmuch that when the Croune was caste vpon him that dishabilitie ceassed Wherein ye confesse directly that the Attainder is no dishabilitie at all to the succession of the Croune For although no dishabilitie can be alleaged in him that hath the Croune in possession yet if there were any dishabilitie in him before to receue and take the same by lawful succession then must ye say that he was not lawful King but an vsurper And therfore in confessing Henry the seuenth to be a lawful King and that the Croune was lawfully caste vppon him ye confesse directly thereby that before he was Kinge in possession there was no dishabilitie in him to take the Croune by lawful successiō his said Attainder notwithstanding which is as much as I would wish you to graunt But in conclusion vnderstanding your self that this your reason can not mainteine your intente you goe about an other way to helpe your self making a difference in the lawe betwene the case of Attainder and the case of foraine byrth out of the Kinges allogeāce saying that in the case of the Attainder neessitie doth enforce the succession of the Croune vpon the partie attaynted For otherwise ye say the Croune shall not descende to any But vpon the birth out of the Kinges allegance ye say it is otherwise And for proufe therof ye put a case of I.S. being seased of landes and hauing issue A. and B. A. is attainted in the life of I.S. his father and after I.S. dieth A. liuing vnrestored Nowe the lande shal not descende either to A. or B. but shal goe to the Lorde of the Fee by way of eschete Otherwise it had ben ye say if A. had ben borne beyond the sea I. S. breaking his allegeāce to the King and after I. S. cometh agayne into the Realme and hath issue B. and dieth for now ye say B. shal inherite his fathers Landes Yf the Croune had bene holden of any person to whome it might haue escheted as in your case of I.S. the lande did then peraduenture there had bene some affinitie betwene your said case and the case of the Croune But there is no such matter Bysides that ye muste consider that the King cometh to the Croune not onely by descente but also and chiefly by succession as vnto a corporation And therefore ye might easely haue sene a difference in your cases betwene the Kinges Maiestie and I.S. a subiecte And also betwene landes holden of a Lorde aboue and the Croune holden of no earthly Lorde but
the Title whiche the Kinges of England haue claimed vnto the Realme of Scotland is not in the possession of the lande and Croune of Scotlande but onely vnto the seruice of homage and fealtie for the same And although the Kinges of Scotland sith the time of King Henry the eight haue intermitted to doe the said homage and fealtie vnto the Kinges of Englande yet for al that the Kinges of Scotland can not by any reason or lawe be called vsurpers And thus may ye see gentle Reader by the opinion of al indifferente men not lead by affection that the Realme of Scotlande hath bene and is yet within the allegeance and dominion of England And so is the Antecedent or first proposition false And yet that maketh no proufe that the Realme of France likewise should nowe be said to be within the allegeance of the Kings of England by reason of the manifest and apparent difference before shewed But what if your Antecedent were true and that we did agree both with the said Queene of Scotland and her subiectes and also with you that Scotland were out of the allegeance of England Yet it is very plaine that your consequent and conclusion can not by any meanes be true And that principally for three causes whereof one is for that neither the King not the Croune not being specially mētioned in the said rule or pretended Maxime can be intended to be within the meaning of the same Maxime as we haue before sufficiently proued by a great number of other suche like generall rules and Maximes of the lawes An other cause is for that the Croune can not be taken to be within the woordes of the said supposed Maxime and that for twoo respectes one is bycause the rule doth only dishable Aliens to demaunde any heritage within the allegeance of England Whiche rule can not be stretched to the demaunde of the Croune of Englād which is not with in the allegeance of England but is the very allegeance it selfe As for a like example it is true that al the landes within the Kinges dominion are holdē of the King either mediatly or immediately and yet it is not true that the Croune by whiche onely the King hath his Dominion can be said to be holdē of the King. For without the Croune there can be neither King nor allegeance And so long as the Croune resteth onely in demaund not being vested in any person ther is no allegeāce at al. So that the Croune can not be said by any meanes to be within the allegeance of England and therfore not within the wordes of the said rule or Maime The Title of the Croune is also out of the wordes and meaning of the same rule in an other respect and that is bycanse that rule doth only dishable an Alien to demaūd landes by descent as heire For it doth not extende vnto landes purchased by an Alien as we haue before sufficiently proued And then can not that rule extende vnto the Croune being a thing incorporate the right wherof doth not descend according to the common course of priuate inheritance but goeth by successiō as other corporatiōs do No man doubteth but that a Prior Alien being no denizon might alwaies in time of peace demaund land in the right of his corporatiō And so likewise a Deane or a Person being Aliens and no deniznos might demaund lande in respecte of their corporations not withstāding the said supposed rule or Maxime as may appeare by diuerse booke cases as also by the statute made in the time of King Richard the second And although the Croune hath alwaies gone according to the common course of a Descent yet doth it not properly descende but succede And that is the reason of the lawe that although the Kinge be more fauoured in all his doinges then any common person shal be yet can not the King by lawe auoide his grauntes and Letters Patentes by reason of his Nonage as other infantes may doe but shal alwaies be said to be of ful age in respect of his Croune euen as a Person Vicare or Deane or any other person incorporate shal be Whiche can not by any meanes be said in lawe to be within age in respect of their corporations although the corporation be but one yeare olde Bysides that the King can not by the law auoide the Letters Patentes made by any vsurper of the Croune vnlesse it be by act of Parlament no more then other persons incorporate shal auoide the grauntes made by one that was before wrongfully in their places and romes whereas in Descentes of inheritance the lawe is otherwise For there the heire may auoide al estates made by the disseafour or abatour or any other person whose estate is by lawe defeated Whereby it doth plainely appeare that the King is incorporate vnto the Croune and hath the same properly by succession and not by Descent onely And that is likewise an other reason to proue that the King and the Croune can neither be saide to be within the wordes nor yet with in the meaning of the said general rule or Maxime The third and most prncipall cause of all is for that in the said statute whervpon the said supposed rule or Maxime is gathered the children descendantes and descended of the blood royal by the wordes of Infantes de Roy are expresly excepted out of the said supposed rule or Maxime Whiche wordes the Aduersaries do much abuse in restrainīg and construing them to extende but to the first degree only whereas the same wordes may very wel beare a more large and ample interpretation And that for three causes and considerations First by the Ciuil lawe this word Liberi which the worde Infantes being the vsuall and original worde of the statute written in the Frenche tongue counteruaileth doth comprehende by proper and peculier signification not only the childrē of the first degree but other Descendants also in the law saying That he who is manumissed or made free shal not commence any Action against the children of the Patrone or manumissour without licence not onely the first degree but the other also is conteined The like is when the lawe of the twelue Tables saith The first place and roome of succession after the death of the parentes that die intestate is due to the children which successiō apperteineth as wel to degrees remoued as to the firste Yea in al causes fauourable as ours is this worde son Filius cōteineth the nephew though not by the propertie of the voice or speache yet by interpretation admittable in al such thinges as the law disposeth of As touching this worde Infantes in Frēch We say that it reacheth to other Descendāts as wel as the first degree Wherein I do referre me to suche as be expert in the said tongue We haue no one worde for the barenes of our English tōgue to coūterpaise the said French word Infantes or the Latin word
Scotland and Wales be al within one Territorie and not diuided by any sea And al old Recordes of the law concerning seruice to be done in those two Countries haue these words Infra quatuor Maria within the fower seas which must nedes be vnderstaÌ„d in ScotlaÌ„d and Wales aswel as in EnglaÌ„d bâ—cause they be al within one continent coÌ„passed with fower seas And likewise be many auncient statutes of this Realm writreÌ„ in the NormaÌ„ FreÌ„ch which haue these wordes deins les quatre mers that is within the fower seas Now coÌ„cerning the statute the title of the same is of those that are born beyond the sea the doubt moued in the corps of the said statut is also of childreÌ„ born beyond the sea out of the allegeance with diuers other braÌ„ches of the statute teÌ„ding that way Wherby it seemeth that no part of the statute toucheth these that are born in Wales or Scot laÌ„d And albe it at this time and before in tho reigne of Edward the first Wales was fully reduced annexed and vnited to the propâ—â— Dothinion of England yet was it before subrected to the Croune and King of England as to the Lorde and Sâ—igniour aswel as Scotland Wherefore if this statute had 〈◊〉 made before the time of the said Edwarde the 〈◊〉 it seemeth that it could not haue bene stretched to Wales no more then it can now to Scotland I doe not therefore a litle meruaile that euer this man for pure shame could finde in his harte so childishly to wrangle vpon this word Infantes and so openly to detorte depraue and corrupt the common lawe and the Actes of Parlament And thus may you see gentle Reader that nothing can be gathered either out of the said supposed general rule or Maxime or of any other rule or Principle of the lawe that by any good and reasonable construction can seeme to impugne the title of the said Ladie Marie now Queene of Scotland of and to the Croune of this Realme of England as is aforesaid We are therefore now last of al to consider whether there be any statute or Acte of Parlament that doth seeme either to take away or preiudâ—ce the title of the said Lady Marie And bycause touching the foresaid mentioned statute of the 25. yeare of King Edward the thirde being only a declaration of the common law we haue already sufficiently answered we wil passe it ouer and consider vppon the statute of 28. and 36. of King Henry the eight being the only shoteanker of al the Aduersaries whether there be any matter therein conteined or depending vpon the same that can by any meanes destroie or hurt the title of the said Ladie Marie Queene of Scotland to the successioÌ„ of the Croune of England It doth appeare by the said statute of 28. of King Henry the eight that there was authoritie geuen him by the same to declare limite appoint and assigne the succession of the Croune by his Letters Patentes or by his last Wil signed with his owne hande It appeareth also by the foresaid statute made 35. of the said King that it was by the same enacted that the Croune of this Realme should go and be to the said King and to the heires of his body lawfully begotten that is to say vnto his Highnes first son of his body betwene him and the Ladie Iane then his wife begotten and for default of such issue then vnto the Lady Marie his daughter and to the heires of her body lawfully begotten and for default of such issue then vnto the Ladie Elizabeth his daughter and to the heires of her body laufully begotten and for default of such issue vnto suche person or persons in remainder or reuersion as should please the said King Henry the eight and according to such estate and after such maÌ„ner order and conditioÌ„ as should be expressed declared named and limited in his Letters Patentes or by his last Wil in writing signed with his owne hande By vertue of whiche said Acte of Parlament the Aduersaries doo alleage that the said late King Henry the eight afterward by his last Wil in writing signed with his owne hand did ordeine and appoint that if it happen the said Prince Edward Ladie Marie and Lady Elizabeth to dye without issue of their bodies lawfully begotten then the Croune of this Realme of Englande should goe and remaine vnto the heires of the bodie of the Ladie Francis his Neece and th' eldest daughter of the Fâ—eÌ„ch Quene And for the defaulte of suche issue to the heires of the body of the Ladie Elenour his Neece seconde daughter to the Frenche Queene lawfully begotten And if it happened the said Ladie Elenor to dye without issue of her body lawfully begotten to remaine and come to the nexte rightfull heires Wherevpon the Aduersaries do inferre that the successioÌ„ of the Croune ought to go to the childreÌ„ of the said Ladie FraÌ„cis and to their heyres according to the said supposed Wil of our late Souereigne Lorde King Henry the eight and not vnto the Ladie Marie Queene of Scotlande that nowe is To this it is on the befalf of the said Lady Marie Queene of Scotland among other things answered that King Henry the eight neuer signed the preteÌ„sed Wil with his own hand and that therfore the said Wil can not be any whit preiudicial to the said Queene Against which answere for the defence and vpholding of the saide Will it is replied by the Aduersaries first that there were diuers copies of his Wil found signed with his owne hande or at the leastwise enterlined and some for the most part writen with his owne hande out of the whiche it is likely that the original Wil commonly called King Henry the eightes Will was taken and fayer drawen out Then that there be great and vehement presumptions that for the fatherly loue that he bare to the coÌ„mon wealth and for the auoiding of the vncerteintie of the successioÌ„ he welliked vpoÌ„ and accepted the authoritie geuen him by Parlament and signed with his owne hande the said original Wil whiche had the said limitation and assignation of the Croune And these presumptions are the more enforced for that he had no cause why he should beare any affection either to the said Queene of Scotland or to the Lady Leneux and hauing withal no cause to be greaued or offended with his sisters the Frenche Queenes children but to put the matter quite out of al ambiguitie and doubte it appeareth they say that there were eleuen witnesses purposely called by the king who were presente at the signing of the said Wil and subscribed their names to the same Yea the chief Lordes of the CouÌ„saile were made and appointed executours of the said Wil and they and other had great Legacies geuen them in the said Wil which were paid and other thinges comprised in the Wil accomplished accordingly There passed also purchases and Letters Patentes betwene King Edwarde and the executors of
the said Wil and others for the execution and performance of the same Finally the said Testament was recorded in the Chancerie Wherfore they affirme thaâ— there ought no manner of doubt moue any man to the coÌ„trarie and that either we must graunt this Wil to be signed with his hand or that he made no Wil at al both must be graunted or both denied If any wil deny it in case he be one of the witnesses he shal impugne his owne testimonie if he be one of the executours he shal ouerthrow the foundatioÌ„ of al his doinges in procuring the said Wil to be inrolled and set forth vnder the great Seale And so by their dubblenes they shal make them selues no mete witnesses Nowe a man can not lightly imagine how any other bysides these two kind of witnesses for some of them and of the executors were such as were coÌ„tinually wayting vpon the Kinges person may impugne this Wil and proue that the king did not signe the same But if any such impugne the Wil it would be coÌ„sidered how many they are and what they are and it wil be very harde to proue negatiuam facti But it is euidente say they that there was neuer any such lawful proufe against the said Wil producted For if it had ben it would haue ben published in the Starrechamber preached at Poules Crosse declared by Acte of Parlament proclaimed in euery quarter of the Realme Yea admitting say they that it were proued that the said pretensed Wil lacked the Kinges hande yet neuerthelesse say they the very copies we haue spoken of being written and signed or at least interlined with his owne hande may be saide a sufficient signing with his owne hande For seing the scope and final purpose of the statute was to haue the succession prouided for and ascerteined whiche is sufficiently done in the said Wil and seing his owne hande was required but onely for eschewing euil and sinister dealing whereof there is no suspicion in this Will to be gathered what matter in the worlde or what difference is there when the King fulfilled and accomplisihed this gratiouse Acte that was loked for at his handes whether he signed the Will with his owne hande or no If it be obiected that the King was obliged and bound to a certaine precise order and forme which he could in no wise shift but that the Acte without it muste perish and be of no valewe then say they wee vndoe whole Parlamentes aswel in Queene Maries time as in King Henry the eightes time In Queene Maries time bycause she omitted the Style appointed by Parlamente Anno 〈◊〉 octauiâ—rice simo quinto In King Henries tyme by reason there was a statute that the Kinges royal assent may be geuen to an Acte of Parlamente by his Letters Patentes signed with his hande though he be not there personally And yet did the saied King supplie full ofte his confente by the stampe only This yet notwithstanding the said Parlamentes for the omission of these formes so exactely and precisely appointed are not destroyed and disannulled After this sorte in effecte haue the Aduersaries replied for the defence of the said pretensed Will. To this we wil make our reioynder and saye Firste that our principall matter is not to ioyne an islewe whether the saide Kinge made and ordeyned any sufficient Will or no. We leaue that to an other time But whether he made any Testament in suche order and forme as the statute requireth Wherefore if it be defectiue in the said forme as we affirme it to be were it otherwise neuer so good and perfect though it were exemplified by the great Seale and recorded in Chancerie and taken commonly for his Wâ—ll and so accomplished it is nothing to the principal question It resteth then for vs to consider the weight of the Aduersaries presumptions whereby they would inforce a probabilitie that the Testament had the foresaide requisite forme Yet first it is to be coÌ„sidered what presumptions and of what force and number do occurre to auoide and frustrate the Aduersaries presumptions and all other like We say then there occurre many likelyhoddes many presumptions many great and weightie reasons to make vs to thinke that as the king neuer had good and iuste cause to minde and enterprise suche an Acte as is pretended so likewise he did enterprise no such Acte in deede I deny not but that theâ— was such authoritie geuen him neither I deâ—y but that he might also in some honorable sort haue practised the same to the honour and wealth of the Realme and to the good coÌ„tentation of the same Realm But that he had either cause or did exercise the said authoritie in suche strange and dishonorable sort as is pretended I plainely denie For being at the time of this pretensed Wil furnished and adorned with issue the late king Edward and the Ladies Marie and Elizabeth their state and succession being also lately by Acte of Parlament established what neede or likelyhod was there for the king then to practise such newe deuises as neuer did I suppose any king in this Realme before and fewe in any other byside And where they were practised commonly had infortunate and lamentable successe What likelyhode was there for him to practise such deuises especially in his later daies when wisdome the loue of God and his Realme should haue bene moste ripe in him that were likely to sturre vppe a greater fier of greeuouse contention and woful destruction in England then euer did the deadly factioÌ„ of the red Rose and the white lately by the incorporation and vnion of the house of Yorke and Lancaster in the person of his father through the mariage of Ladie Elizabeth eldest daughter of king Edwarde the fourth most happily extinguished and buried And though it might be thought or said that there would be no such eause of feare by reason the matter passed by Parlament yet could not he be ignorant that neither Parlamentes made for Henry the fourth or continuance of twoo Descentes whiche toke no place in geuing any Title touching the Croune in King Henry the sixt nor Parlamentes made for King Râ—chard the third nor Parlaments of attainder made against his father could either preiudice his fathers right or releaue other against such as pretended iust right and title And as he could not be ignoraÌ„t therof so it is not to be thought that he would abuse the great confidence put vppon him by the Parlament and disherite without any apparent cause the next royal blood and thinke all thinges sure by the colour of Parlament The litle force whereof against the right inheritour he had to his fathers and his owne so ample benefit so lately and so largely sene and felt And yet if he minded at any time to preiudice the said Lady Marie Queend of Scotland of al times he would not haue done it then when al his care was by al possible meanes to contriue and compasse a mariage
betwene his sonne Edward and the said Lady and Quene Surely he was to wise of him selfe and was furnished with to wise CouÌ„sailours to take such an homely way to procure and purchase the said mariage by And least of all can we say he attempted that dishonorable disherision for any special inclination or fauour he bare to the French Queene his sisters children For there haue bene of his neere and priuie Counfaile that haue reported that the King neuer had any great liking of the mariage of his sister with the Duke of Suffolke who maried her first priuily in France and afterward openly in England And as it is said had his pardon for the said priuy mariage in writing Howe so euer this matter goeth certeine it is that if this pretensed Wil be true he transferreed and traÌ„sposed the reuersion of the Croune not only from the Queene of ScotlaÌ„d from my Ladie Leneux and their issue but euen from my Ladie Francis and my Ladie Elenour also daughters to the Frenche Queene whiche is a ching in a manner incredible and therefore nothing likely I must now gentle Reader put thee in remeÌ„brance of two other most pregnaÌ„t and notable coniectures and presumptions For among al other incoÌ„ueniences and absurdities that do and may accoÌ„panie this rash and vnaduised acte by this preteÌ„sed Wil inconsiderately mainteined it is principally to be noted that this Acte geueth appareÌ„t and iust occasion of perpetual disherison of the Style and Title of FraÌ„ce incorporated and vnited to the Croune of this Realme For whereby do or haue the Frenchmen hitherto excluded the Kings of this Realme claiming the Croune of France by the Title of Edward the third falling vpon him by the right of his mother other then by a politike and ciuil law of their owne that barreth the female from the right of the Croune And what doth this preteÌ„sed Act of king Henrie but iustifie and strengthen their quarel and ouerthoweth the foundatioÌ„ and bulworke wherby we mainteme our foresaid Title and claime If we may by our municipal law exclude the said Queene of Scotland being called to the Croune by the Title of general heritage then is their municipal law likewise good and effectual and coÌ„sequently we 〈◊〉 and haue made al this while an vniust and wrongful claime to the Croune of France But now to go somewhat farther in the matter or rather to come neerer home and to the quicke of the matter we say as there was some apparent and good cause why the king should the twentie and eight yeare of his reigne thinke vpon some limitation and appointement of the Croune king Edward as yet vnborne so after he was borne and that the Title and interest of the reuersion of the Croune after him was the thirtie and fifte yeare by Parlament confirmed to the late Queene Marie and her sister Elizabeth it is not to be thought that he would afterward ieoparde so great a matter by a Testament and Wil which may easely be altered and counterfeyted And least of al make such assignation of the Croune as is nowe pretended For being a Prince of such wisdome and experience he could not be ignorant that this was the next and rediest way to put the state at least of both his daughters to great peril and vtter disherison For the Kinges exaÌ„ple and boldnes in interrupting and cutting away so many branches of the neerest side and line might sone breede in aspiring and ambitious hartes a bolde and wicked attempte the way being so farre brought in and prepared to their handes by the King him selfe and their natures so readie and prone to follow euil presidents and to clime high by some colourable meanes or other to spoile and depriue the said daughters of their right of the Croune that should descend and fal vpon them and to conuey the same to the heires of the said Ladie Francis. And did not I pray you this drift and deuise fal out euen so tending to the vtter exclusioÌ„ of the late Queene Marie and her Sister Elizabeth if God had not of his mercy most gratiously and wonderfully repressed and ouerthroweÌ„ the same These reasons then and presumptions may seme wel able and sufficient to beare doune to breake doune and ouerthrow the weake and slender presumptions of th' Aduersaries grounded vpon vncertaine and mere surmises ghesses and coniectures as among other that the King was offended with the Quene of Scotland and with the Ladie Leneux Which is not true And as for the Ladie Leneux it hath no manner of probabilitie as it hath not in dede in the said Queene And if it had yet it is as probable and much more probable that the King would haue especially at that time for such cause as we haue declared suppressed the same displeasure Graunting now that there were some such displeasure was it honorable either for the King or the Realm or was it thinke ye euer thought by the Parlament that the King should disherite them for euery light displeasure And if as the Aduersaries confesse the king had no cause to be offended with the FreÌ„ch Quenes childreÌ„ why did he disherite the Ladie FraÌ„cis and the Ladie Elenor also Their other presumption whiche they ground vpoÌ„ the auoyding of the vncertenty of the succession by reason of his Wil is of smal force and rather turneth against them For it is so farre of that by this meanes the succession is made more certaine and sure that contrarywise it is subiecte to more vncerteintie and to lesse suertie then before For whereas before the right and claime to the Croune hong vppon an ordinarie and certaine course of the common lawe vpon the certaine and assured right of the royall and vnspotted blood yea vppon the very lawe of nature whereby many inconueniences manie troubles daungers and seditions are in al Countries politikely auoided so now depending vpon the statute onely it is as easie by an other statute to be intringed and ouerthrowen And depending vppon a Testament is subiect to many corruptions sinister dealinges cauillations yea and iust ouerthrowes by the dishabilitie of the Testatours witnesses or the Legatorie himselfe or for lacke of dewe order to be obserued or by the death of the Witnesses vnexamined and for many other like considerations The Monumentes of al antiquitie the memorie of al ages and of our owne age and dayly experience can tel and shewe vs many lamentable examples of many a good and lawful Testament by vndue and craftie meanes by false and suborned witnesses by the couetous bearing and main tenance of such as be in authoritie quite vndone and ouerthrowne Wherefore Valerius Maxtmus crieth out against M. Crassus and Q. Hortensiu Lumina â—uriae ornamenta Fori quod scelus vindicare debebant inhonesti lucri captura inuitati authoritatibus suis texerunt This presumption then of the Aduersaries rather maketh for vs and ministreth to vs good occasion to thinke that the King would not hasard
the weight and importaÌ„ce of such a matter to reste vpon the validitie or mualiditie of a bare Testament only By this that we haue said we may probably gather that the King had no cause to aduenture so great an interprise by a bare Wil and seâ—tament Ye shal now heare also why we think he did neuer attempt or enterprise any such thing It is wel knowen the King was not wonte lightly to ouerslippe the occasion of any great commoditie presently offered And yet this notwithstanding hauing geuen to him by Acte of Parlament the ordering and disposition of al Chantries and Colleges he did neuer or very litle practise and execute this authoritie And shall we thinke vnlesse ful and sufficient prouse necessarily enforce creditte that the King to his no present coÌ„moditie and aduantage but yet to his great dishonour and to the great obloquie of his subiectes and other Countries to the notable disherison of so many the next royal blood did vse any such authoritie as is surmised Againe if he had made any such assignation who doubteth but that as he conditioned in the said pretensed Wil with his noble daughters to marie with his CouÌ„sels aduise either els not to enioy the benefitte of the succession he would haue tyed the said Ladie Francis and Ladie Elenours heirs to the same condition Farthermore I am driuen to thinke that ther passed no such limitatioÌ„ by the said king Henries wil by reason there is not nor was these many yeares any original copy therof nor any autheÌ„tical Record in the ChaÌ„cerie or els wher to be shewed in al EnglaÌ„d as the Aduersaries theÌ„selues confesse and in the copies that be spread abrode the witnesses preteÌ„ded to be present at the signing of the said Wil be such for the meanesse of their state on the one side and for the greatnesse and weight of the cause on th' other side as seme not the most sufficient for suche a case The importance of the cause being no lesse then the disherision of so many heires of the Croune as wel from the one sister as froÌ„ the other required and craued some one or other of the priuie CouÌ„saile or some one honorable and notable person to haue ben present at the said signing or that some notificatioÌ„ should haue ben made afterward to such persons by the King him selfe or at least before some Notarie and autheÌ„tical person for the better strengthening of the said Wil. Here is now farther to be coÌ„sidered that seing the interest to the Croune is become a plaine testamentarie matter and claime and dependeth vpon a last Wil when and before what Ordinarie this Wil was exhibited al lowed and prooued Where and of whome toke the Executours their othe for the true performaÌ„ce of the Wil Who coÌ„mitted to theÌ„ th'administratioÌ„ of the Kings goods and chattles When and to whome haue they brought in the InueÌ„tory of the same Who examined the witnesses vpon their othe for the tenour and trueth of the said TestameÌ„t Namely vpon the signement of the Kinges hand wherein only consisteth the weight of no lesse then of the Croune it self where or in what spiritual or temporal Courte may one find their depositions But it were a very hard thing to finde that that as farre as men can learne neuer was And yet if the matter were so plaine so good and so sound as these men beare vs in hand if the original TestameÌ„t had ben such as might haue biddeÌ„ the touchstone the trial the light and the sight of the worlde why did not they that enioyed most commoditie therby and for the sway and authorite they bare might and ought best to haue done it take coÌ„uenient and sure order that th' original might hane ben duely and safely preserued or at the least the ordinarie Probate which is in euery poore mans Testament diligeÌ„tly obserued might haue ben procured or sene one or other auteÌ„tical InstrumeÌ„t therof reserued The Aduersaries theÌ„selues see wel inough yea and are faine to coÌ„fesse these defectes But to helpe this mischief they wold fame haue the EnrolmeÌ„t in the Chancerie to be taken for a sufficient Probate by cause as they say both the spiritual and temporal authoritie did concurre in the Kings person Yet do they know wel inough that this plaister wil not cure the sore and that this is but a poore helpe and a shift For neither the Letters Patents nor th'EnrolmeÌ„t may in any wise be counted a sufficient Probate The ChaÌ„cerie is not the Court or ordinarie place for the probate of Willes nor the Rolles for recording the same Both must be done in the Spiritual Courts where th'Executours also must be impleaded and geue their accompt where the weakenes or strength of the Wil must be tried the witnesses examined finally the probate and al other thinges thereto requisite dispatched Or if it may be done by any other person yet must his authoritie be shewed The probate and al thinges must be done accordingly And among other things the vsual clause of Saluo iure cuiuscunque must not be omitted Which things I am assured the recording in the ChaÌ„cerie caÌ„not import But this caution and prouiso of Saluo iure cuiuscunque which is most coÌ„formable to al law and reason did litle serue some mens turne And therefore there was one other caution and prouiso that though the poorest mans TestameÌ„t in al England hath this prouiso at the probate of the same yet for this Testament the weightiest I trow that euer was made in England no suche probate or clause can be found either in the one or the other court Yet we nedes must al this notwithstanding be borne in hande and borne doune that there was a TestameÌ„t and Wil formably framed according to the purpose and effect of the statute yet must the right of th' imperial Croune of EnglaÌ„d be coÌ„ueied and caried away with the color and shadow only of a Wil. I say the shadow only by reason of another coniecture and presumptioÌ„ whiche I shal tel you of Whiche is so liuely and effectual that I verily suppose it wil be very harde for any man by any good and probable reason to answere and auoide the same And is so important and vehemeÌ„t that this only might seeme vtterly to destroie al the Aduersaries coniectural prouffes coÌ„cerning the maintenance of this supposed Wil. We say therfore and affirme that in case there had ben any good and sure helpe and handfast to take and hold the Croune for the heirs of Lady Francis by the said Wil that the faction that vniustly intruded the Lady Iane eldest daughter to the said Lady FraÌ„cis to the possession of the Croune would neuer haue omitted to take receaue and imbrace the occasioÌ„ and benefit therof to them presently offered They neither would nor could haue ben driuen to so harde and bare a shifte as to colour their vsurpation against the Late Queene Marie only and her Sister Elizabeth with the
euidently tende to this ende and scope if a zealous minde to the common Wealth if prudence and wisdome did not rule and measure al these doinges but contrariewise partial affection and displeasure if this arbitrement putteth not away al contentions and striffes if the mind and purpose of the honorable Parlament be not satisfied if there be dishonorable deuises and assignmentes of the Croune in this Wil and Testament if there be a new Succession vnnaturally deuised finally if this be not a Testament and last Wil such as Modestinus defineth Testamentum est tusta voluntatus nostra sententia de eo quod quis post mortem suam fieti velit then though the Kinges hand were put to it the matter goeth not altogether so wel and so smothe But that there is good and great cause farther to consider and debate vpon it whether it be so or no let the indifferent when they haue wel thought vpon it iudge accordingly The Aduersaries them selues can not altogether denie but that this Testament is not correspondent to such expectation as men worthely should haue of it Whiche thing they do plainly confesse For in vrging their presumptions whereof we haue spokē and minding to proue that this wil whiche they say is commonly called King Henries Wil was no new Wil deuised in his sicknes but euen the very same wherof as they say were diuers olde copies they inferre these wordes saying thus For if it be a newe Wil then deuised who could thinke that either him selfe would or any man durst haue moued him to put therin so many thinges contrary to his honour Much lesse durst they themselues deuise any new successiō or moue him to alter it otherwise then they foūd it when they saw that naturally it could not be otherwise disposed Wherein they say very truely For it is certaine that not only the common lawe of this Realme but nature it selfe telleth vs that the Queene of Scotlād after the said Kinges children is the next and rightful Heire of the Croune Wherefore the King if he had excluded her he had done an vnnatural acte Ye wil say he had some cause to doo this by reason she was a forainer and borne out of the Realm Yet this notwithstanding he did very vnnaturally yea vnaduisedly inconsideratly and wrongfully and to the great preiudice and danger of his owne Title to the Croune of France as we haue already declared And moreouer it is wel to be weighed that reason and equitie and Ius Gentium doth require and craue that as the Kings of this Realme would thinke them selues to be iniuriously handled and openly wronged if they mariyng with the heires of Spaine Scotland or any other Countrey where the succession of the Croune deuolueth to the woman were shutte out and barred from theyr said right dewe to them by the wiues as we haue said so likewise they ought to thinke of women of their royal blood that marie in Scotland that they may wel iudge and take them selues much iniured vnnaturally and wrongfully dealt withall to be thruste from the succession of this Croune being thereto called by the nexte proximitie of the royal blood And such deuolutiōs of other Kingdoms to the Croune of England by foraine mariage might by possibilitie often times haue chaunced and was euen nowe in this our time very like to haue chanced for Scotland if the intended mariage with the Queene of Scotland that now is and the late King Edward the sixt with his longer life and some issue had takē place But now that she is no suche forainer as is not capable of the Croune we haue at large already discussed Yea I wil now say farther that supposing the Parlament minded to exclude her and might rightfully so doe and that the King by vertue of this statute did exclude her in his supposed Wil yet is she not a plaine forainer and incapable of the Croune For if the lawfull heires of the said Ladie Francis and of the Ladie Elenour should happē to faile which seeme now to faile at the least in the Ladie Katherin and her issue for whose title great sturre hath lately ben made by reason of a late sentence definitiue geuen against her pretensed mariage with the Earle of Herford then is there no stay or stoppe either by the Parlament or by the supposed Will but that she the said Queene of Scotlande and her Heires may haue and obteine their iust Title and claime For by the said pretensed Wil it is limited that for default of the lawfull Heyres of the said Ladre Francis and Elenour the Croune shall remaine and come to the next rightful Heires But if she shal be said to be a forainer for the time for the induction of farther argument then what saye the Aduersaries to my Ladie Leneux borne at Herbottel in England and from thirtene yeares of age brought vppe also in England and commonly taken and reputed as well of the King and Nobilitie as of other the lawefully Neece of the said King Yea to turne nowe to the other Sister of the King maried to Charles Brandon Duke of Suffolke and her children the Ladie Francis and the Ladie Elenour why are they also disherited Surely if there be no iust cause neither in the Lady Leneux nor in the other it seemeth the King hath made a plaine Donatiue of the Croune Whiche thinge whether he could doe or whether it be conformable to the expectation of the Parlament or for the Kinges honour or for the honour for the Realme I leaue it to the farther consideration of other Nowe what causes should moue the Kinge to shutte them out by his pretensed Will from the Title of the Croune I minde not nor neede not especially seeing I take no notice of any such Wil touching the limitation of the said Croune here to to prosecute or examine Yet am I not ignorant what impedimentes many doo talke of and some as well by printed as vnprinted Bookes doe write of Wherein I will not take vppon me any asseueration any resolution or iudgement Thus only will I propound as it were by the way of consideration duely and depely to be wayed and thought vpon that is for as muche as the benefitte of this surmised Wil tendeth to the extrusion of the Queene of Scotland and others altogether to the issue of the French Queene whether in case the King had no cause to be offended with his sisters the Frenche Queenes children as the Aduersaries them selues confesse he had not and that there was no lawful impediment in them to take the succession of the Croune it were any thing reasonable or euer was once meant of the Parlament that the King without cause should disherite and exclude them from the Title of the Croune On th' other side if ther were any such impediment whereof this surmised Wil geueth out a great suspicion it is to be considered whether it standeth with reason and iustice with the honour of the King and the
the said statutes And therefore in that respect the said Wil is insufficient in lawe And to aggrauate the matter farther ye shal vnderstand of great inconueniences and imminent dangers which as yet are likely to ensue if that supposed Wil should take place It is not vnknowen but that at the time of the making of the said Wil the said Ladie Francis had no issue male but onely three daughters betwene her and Henrie Duke of Suffolke Afterward in the time of our late soueraigne Ladie Queene Marie the said Duke of Suffolke was attainted and suffered accordingly After whose death the said Ladie Francis to her great dishonour and abasing of her selfe toke to husbande one Adrian Stokes who was before her seruant a man of very meane estate and vocation and had issue by him Which issue if it were a son and be also yet liuing by the wordes of the said supposed Wil is to inherite the Croune of this Realme before the daughters betwene her and the said late Duke of Suffolke begotteÌ„ which thing was neither intended nor meant by the makers of the said Actes Who can with any reason or common sense thinke that al the states of the Realme assembled together at the said Parlament did meane to geue authoritie to King Henry the eight by his Letters PateÌ„ts or last Wil to disherit the Queene of Scotland lineally descended of the blood roial of this Realme and to appoint the sonne of Adrian Stokes then a meane seruing man of the Duke of Suffolks to be King and Gouernour ouer this noble Realme of EnglaÌ„d The inconueniences whereof as also of the like that might haue followed of the preteÌ„sed Mariage of M. Keies the late Sergeante Porter I referre to the graue consideratioÌ„s and iudgementes of the honorable and worshipful of this Realme Some peraduenture wil say that King Henry the eight meant by his Wil to dispose the Croune vnto the Heires of the body of the said Ladie Francis by the said Duke lawfully begotten and not vnto the heires by any other person to be begotteÌ„ Which meaning although it might very hardly be gathered vpon the said supposed Wil yet can not the same be without as great inconueniences as the other For if the Croune should nowe remaine vnto the heires of the bodie of the said Ladie Francis by the said Duke begotten then should it remaine vnto two daughters ioyntly they both being termed and certainly accompted in law but one heire And by that meanes the state and gouernment of this Realme should be changed from the auncient Monarchie into the gouernement of many For the Title of the Ladie Francis being by way of remainder whiche is compted in law a ioynt purchase doth make all the issue female inheritable a like and cannot go according to the ancient law of a desceÌ„t to the Croune which is that the Croune by descent must go to the eldest daughter only as is aforesaid For great differeÌ„ces be in law where one cometh to any Title by descent and where as a purchaser And also if th' one of those issues female dye then were her heire in the Title as a seueral tenant in tayle And so there should follow that so many daughters so many general Gouernors and so might their issue being heirs females make the gouernmeÌ„t grow infinite Which thing was most farre from the meaning of the makers of that Acte of ParlameÌ„t What if the said King had by his last Wil disposed this realme into two or three parts diuiding the gouernement thereof to three persons to rule as seueral Kinges as for example Wales vnto one the Northe partes vnto an other the South partes vnto the third and by that meanes had miserably rent this Realme into partes Had this ben according to the entent and meaning of the said Acte of Parlament Or had it bene a good and sufficient limitation in law No verily I thinke no man of any reasonable vnderstanding wil so say And no more can he either say or thinke of the remainder limited vnto heires of the body of the said Lady Francis by the said supposed Wil. Now to coÌ„plete and finish this our Treatise touching the Queene of ScotlaÌ„ds Title to the fuccession of the Croune as we haue done so let vs freely and liberally graunt the Aduersaries that whiche is not true that is that the said supposed Wil was signed with the Kings owne hand Let the heires of the Lady Francis come forth in Gods name and lay forth to the world their demauÌ„d and supposed right against the said Q. of Scotlandes interest The Quene on th' other side to fortifie and streÌ„gthen her claime laieth forth to the open sight of al the worlde her â—ust title and interest signed and alwaies afore this time allowed not onely as with the Seales but with the othes also of al the Kings that euer wer in EnglaÌ„d takeÌ„ at the time of their Coronation for the coÌ„tinuance of the lawes of this noble Realme of England signed and allowed I say almost of al the world by sides yea signed with God and natures owne fingers Her right is as open and as clere as the bright Sonne Now to darken and shadow this glorious light what doe the heires of the said Ladie Francis or others bring forth to grouÌ„d their iust claime and demauÌ„d vpoÌ„ When al is done they are faine to ruÌ„ne and catche holde vpon King Henry the eightes written Wil signed with his owne hande Wel let them take as good handfast thereon as they can but yet lette them shewe the said Queene the said original Wil. It is wel knowen that they themselues haue said that that to doe they can not Yet let them at least lay forth some autheÌ„tical Record of the same It is also notorious that they can not If then the foundation of their claime being the Wil of such a Prince and of so late and fresh memorie made neither the original nor yet any good and worthy Recorde sufficiently authorised remaine of the same by what colour wil they exclude the saide Queene They must claime either by proximitie of blood or by Charter For the first nature hath excluded them Charter they haue none to shew They wil perchance crie out and complain of the losse and imbeaseling of the same and say that such a casualtie should not destroye and extinguish their right This were some thing perchance if it were in a priuate maÌ„s case It were somewhat if their demauÌ„d did not destroy the coÌ„mon law and the law of nature also It were somewhat if their supposed Charter were perished or by any frau duleÌ„t meanes intercepted by the said Quene Vpon whom in this point it is not possible to fasten any the very least sinister suspicioÌ„ It were somewhat if they did not aspire to take gaine and lucre or if the Queene sought not to auoide daÌ„mage For daÌ„mage it is when any person is spoiled of any right due to him by law and reason And there is
The possions of the Croune of Englad that vvere beyondthe seas sealed into the Frenche kings haÌ„ds for the murther of Arthur Polid. 15. flor histor An. 120â— Levvis the French Kings son claimed the Croune of this Realme in the Title of his vvise Pro hereditate uxoris meae scilicet neptis Regis loaÌ„ usque ad mortem â—â— necessitas exigeret decertabo Flor histo Anno 1216. Haroldus muneribuâ— genere fretê° regni diadema innasit H. Hunte hist Angli lib. 5 Cut regnuÌ„ iure hereditario debebatur Palredus Rhie ual in histo R. Angliae ad H. 2. Cui de iure debebatur regnum An glorum Io. Lond. in Chron. Angliae Eadem uerba sunt in Math West mon. in flor hist a. 1066 What calamities sell to this Realm by the vsurping of King Harolde King Stephen and Iohn Rex Eduar dus misit c. ut uel ipse Eduar uel filius e ius sibi succederent c. Rich. Cicest uid Wil. Malmest de reg Angl. E. 2. c. 45. lib. 3. c. 5. Polid. 26. king H. 7 vvith his Counsaile is a good interpretor of our present cause The mariages of King E. 3. sonnes A fond imagination of the Aduersarie of the statute of 25. E. 3. There vvas no doubt made of the Kinges children borne beyonde the seas This statute toucheth not the Q. of ScotlaÌ„d as one not borne beyond the seas Vide statuta Walliae in magna Charta Walesvvas vnder the allegeance of EnglaÌ„d before it vvas vnited to the Croune The statutes of King H. 8. touching the succession of the Croune An ansvves to the fore said statute The effect of the Aduersaries arguments for the exclusion of the Quene of Scotland by a pretensed vvil of King H. 8 An. H. 8.35 An. H. 8.33 21. An ansvvet by the vvay of reioindeâ— to the same Diuers presumptions and reasons agaiÌ„st this supposed vvil The supposed vvil is preiudicial to the Croune of Englande for the claime of the croune of France This supposed vvil geueth occasion of ambitious aspiring Succession to the Croune more vncerteÌ„ bi the supposed vvil then before Much forgene and counterfeyting of Testamets Valerius Maximus dict et fact lib. 9. c. 4. In this supposed vvil is no condition for the mariage of the heires of the L. Francis as is for the Kinges ovvne daughters No order taken for the probate of the supposed vvil The enrollement in the chance rie is not a probate A great presumption against the supposed vvil for that the late pretensed Q. Iane did not vse the benefit of the same against the Q. of Scotland and others See the proclamation made the x. of Iulie the first yeare of her pretensed reigne Polid. lib. 8. The forgetie of this 〈…〉 〈◊〉 discloseâ— before the Parlament by the L. Paget A vvorthy deede for à Prince to cancell false Recordes Cicero 3. offic Sueton. de uiris illustrib Bed. lib. 3. histor Ecclesiast c. 1. L. tefliuÌ„ ff de testibus L. Ob carnem ibid. No iust â—aâ—se to repel â—he testimonie of the L. Paget and others L. Famâ—â— ff ad 〈…〉 maies l. muliere ff de accusat Hovv a negatiue may be proued Gloss Doct. c. bo na de elect Hovv and vvhen the later testimonie is to be accepted before the former Why the stampe caÌ„not counteruaile the Kings hand in this case Ioan Andr. in adit spe cul tit de requisit consul ad finem L. Sifundus ff de rebus corumâ—c de rebus Ecelesiae in 6. An ansvvere to the aduersaries touchinge Actes of Parlament alleaged to proue that the Kinges ovvne haÌ„d vvas not necessarie to the supposed vvil 18. E. 3. fol. 30. 3. H. 4. fol. 3. 11. 11. H. 4. fol. 67.9 H. 6. fo 6. 19. H. 6. fo 7. et 10 35. H. 6. fol. 12. 10. H. 6. fol. 26. 3. H. 6. fol. 8. 33. E. 3. fo 13. Vide Prisot 33. H. 6. fol. 39. 9. H. 6. fol. 35.35 H. 6. fol. 34.40 E. 3. fol. 2. 40. E. 3. fol. 35.21 E. 4. fol. 97.7 H. 7. fol. 15. 9. E. 4. fo 2. 22. E. 4. fo 47. 29. H. 6. fol. 6.29 lib. Assis P. 64. 27. H. 8. c. 10. 32. H. 3. c. 1. The supposed vvil caÌ„ not preiudice the Q of Scot laÌ„d though it had ben signed vvith the Kinges ovvne haÌ„d Ther must needes be some qualification and restrait of the general vvordes of the statute Matthae us Paristensis in Iohan. L. 1. ff quâ— Testamenta facere The definition of a TestameÌ„t L. fl pater ff Quae in frau credit L. fill famil ff de Donat. L. 1. c quae res pign l. obligatione ff de pigno c in genera de Regum iuris in 6. L. quidaÌ„ ff de uerb sâ—g L. ut grada §. 1. de numer honor L. permitteÌ„do cuÌ„ notatis ff de iure dotiuÌ„ In geuing general au thoritie that seemeth not to be comprised that the partie vvould not haue graunted being specially demaunded General voordes must be referred to hable persons L. 2. c. de Nopal L. fin § in computatione De iure deliber ibi notat Alciat in l. 1. de uerb significat 11. H. 4. fol. 72. 9. H. 6. fol. 24.11 H. 6. fol. 15. Non est par ratiâ— lucra non capere damna sentire L. sin C. de co dicil L. Proculus ff de damno infect Insti de legat Si res L. qui â—eeâ— sare C. dâ— edendo §. commodum lust de indict L. st quiâ— iâ— aliquo documento C. de edendâ— An infamous libel made lately against the Queene of Scot. The Authour of the same seemeth litle to regarde touching the succession of the Croune any lavve but holy Scripture only He groundeh him self chefly vpon the 17. of Deuteron â— Samuel â— 2. Reg. 11. An ansvvere tou chinge the 17. of Deuteron Great difference be tvvixt successioÌ„ and clection August de merit remis pecc cont Pela li 3. c 8. 9. to 7 in quaest ex nouo Test ca. 8. to 4. Queene of Scotland no straunger 3. Politico 1. Reg. 8. 2. Reg. 12. An ansvvere to the 2. Samuel 5. Ioseph Iudaic An tiq lib. 9. cap. 6. A nevve fond and madde in terpretation vvho is an AlieÌ„ made by the Aduer sarie Ioseph ibi cap. 6. Athalia vvas no AheamoÌ„g the levves Who is an Alien by Vlpian Who is an Alien by Vlpian L. 1. ff ad municip Matth. 12 Iosue 6. Dauid and Christ descend of Obed Ruthes sonne 4. Reg. 11. An ansvvere to the Aduer farre touching the lavve of Nature vvhich he vvresteth against vvomens gouernement L. 1. ff de iust iure l. ueluti l. ex hoc l. omnes cod Est enim noÌ„ scripta sed nata lex c. Cicero pro Milone The practise of Womens Regiment in Asia Aphrica and Europa Straebo geâ— graph lib. 14. First in Asia Queene Artemesia Queene Ada. Solinus in collect lib. 67. Plinius lib. 6. cap. 20.