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 kings Henry the eightes time In Queene Maries time bicause she omitted the Style appointed by Parlamente Anno Henrici octaui tricesimo quinto An. H. 8.35 An. H. 8.33 21. In kinge 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 hāde though he be not there personally And yet did the saied king supplie full ofte his consente 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 An ansvver by the vvay of reioinder to the same After this sorte in effecte haue the Aduersaries replied for the defence of the said pretensed will To this we will make our reioynder saye Firste that our principal matter is not to ioyne an issewe whether the saide kinge made and ordeyned any sufficient will or no. VVe leaue that to an other time But whether he made any Testamēt in suche order and forme as the statute requireth VVherefore if it be defectiue in the said forme as wee 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 VVil and so accomplished it is nothing to the principal question It resteth then for vs to cōsider the weight of the aduersaries presumptions whereby they would inforce a probabilitie that the Testamēt had the foresaid requisite forme Yet first it is to be considered what presumptions and of what force number do occurre to auoide and frustrate the Aduersaries presumptions and all other like Diuers presumptions reasons against this supposed vvill VVe 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 enterprise suche an Acte as is pretended so likewise he did enterprise no such Acte in deede I deny not but that ther was such authoritie geuen him neither I deny but that he might also in some honorable sort haue practised the same to the honour and wealthe of the Realme and to the good contentation of the same Realme But that he had either cause or did exercise the said authoritie in suche strange dishonorable sort as is pretended I plainely denie For being at the time of this pretēsed will 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 that Realme before and fewe in any other byside And where they were practised commonly had infortunate and lamentable successe VVhat likelyhode was there for him to practise such deuises especially in his later daies when wisdome the loue of God and his Realm should haue bene moste ripe in him that were likely to sturre vppe a greater fier of greeuouse contention and wofull destruction in England then euer did the deadly faction of the read Rose the white lately by the incorporation and vnion of the house of Yorke and Lancastre in the person of his father through the mariage of Ladye Elizabeth eldest daughter of King Edwarde the fourth moste happily extinguished and buried And though it might be thought or said that there vould be no such cause of feare by reason the matter passed by Parlament yet could not he be ignorāt that neither Parlamēts made for Hēry the fourth or cōtinuance of twoo Descentes which toke no place in geuing any Title touching the Croune in King Henry the sixt nor Parlamentes made for King Richard 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 ignorant therof so it is not to be thought that he would abuse the great confidence put vpon him by the Parlament and disherite without any apparent cause the next roial blood and thinke all thinges sure by the colour of Parlamēt 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 Queene of Scotland of all times he would not haue done it then when all his care was by all possible meanes to contriue and compasse a mariage betwene his sonne Edward and the said Lady and Queene Surely he was to wise of him selfe and was furnished with to wise Counsailours 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 disherison for any speciall inclinatiō or fauour he bare to the French Queene his sisters children For there haue bene of his neere priuie Counsaile 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 Howesoeuer this matter goeth certeine it is that if this pretensed will be true he transferred and transposed the reuersion of the Croune not only from the Queene of Scotland from the Ladie Leneux and their issue but euen from the Lady Francis the Ladie Eleonour also daughters to the Frēche Queene whiche is a thing in a manner incredible and therefore nothing likely I must now gentle Reader put thee in remembrance of two other most pregnant and notable cōiectures and presumptions For among all other inconueniences and absurdities that do and may accompanie this rash vnaduised acte by this pretensed wil inconsiderately mainteined it is principally to be noted The supposed vvill is preiudicial to the Croune of England for the clame of the Croune of France that this Acte geueth apparent iust occasion of perpetual disherison of the Style Title of France incorporated and vnited to the Croune of England For whereby do or haue the Frenchemen hitherto excluded the kinges of that Realme claming the Croune of France by the title of Edward the third fallen vpon him by the right of his mother other than by a politike and ciuil law of their owne that barreth the female frō the right of the Croune And what doeth this pretensed Act of king Henrie but iustifie and strengthen their quarel and ouerthrow the foundatiō bulworke wherby the kings of England maintene their foresaid title and clame For if they may by their municipial lawe of England
touching the Succession They putte their whole trust vpon the King as one whome they thought most earnestly to minde the wealth of the Realme as one that would and could best and most prudently consider and weigh the matter of the Succession and prouide for the same accordingly If the doinges of the King do not plainely and euidently tende to this ende and scope if a Zealous minde to the common wealth if prudence wisdome did not rule measure all these doinges but contrariewise partial affection and displeasure if this arbitrement putteth not away all contentions and striffes if the mind and purpose of the honorable Parlament be not satisfied if there be dishonorable deuises assignements of the Croune in this will and Testament L. 1. ff qui TestameÌ„ta facâ—re if there be a new Succession vnnaturally deuised finally if this be not a Testament and last will such as Modestinus defineth Testamentum est iusta voluntatis nostrae sententia de eo The definition of a Testament quod quis post mortem suaÌ„ fieri velit then though the Kinges hand were put to it the matter goeth not altogether so wel so smothe But that there is good and great cause further 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 correspondeÌ„t to such expectation as men worthely should haue of it VVhiche thing they do plainly confesse For in vrging their presumptions whereof we haue spoken and minding to proue that this wil whiche they say is commonly called King Henries VVill was no new VVil 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 nevve vvill then deuised vvho could thinke that either h m selfe vvould or any man durst haue moued him to put therin so many thinges contrary to his honour Much lesse durst they them selues deuise any nevv succession or moue him to alter it othervvise then they found it vvhen they savv that naturally it could not be othervvise disposed VVherein they say very truely For it is certaine that not only the common lawe of that Realm but nature it selfe telleth vs that the Queene of Scotland after the said Kinges children is the next and rightful Heire of the Croune VVherefore the King if he had excluded her he had done an vnnatural act Ye will say he had some cause to doo this by reason she was a forainer and borne out of the Realme 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 well to be weighed that reason and equitie and Ius Gentium doth require craue that as the kings of that Realm 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 sucession of the Croune deuolueth to the woman were shutte out and barred from their said right due to them by the wiues as we haue said so likewise they ought to think of womeÌ„ of their royal blood that marie in Scotland that they may wel iudge and take them selues muche iniuried vnnaturally and wrongfully dealt withall to be thruste from the succession of that Croune being thereto called by the nexte proximitie of the royal blood And such deuolutions 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 nowe is and the late King Edward the sixt with his longer life some issue had taken place But now that she is no suche forainer as is not capable of the Croune we haue at large already discussed Yea I will now say farther that supposing the Parlament minded to exclude her and might rightfuly so doe and that the King by vertue of this statute did exclude her in his supposed will 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 Eleonour should happen to faile whiche 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 senteÌ„ce 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 VVill but that she the said Quene of Scotlande and her Heires may haue and obteine their iust Title and clame For by the said pretensed will it is limited that for default of the lawfull Heyres of the said Ladie Francis Elenour the Croune shall remaine and come to the next rightful Heires But if she shall be said to be a forainer for the time for the induction of farther argument then what saye the Aduersaries to the 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 lawefull Neece of the said king Yea to turn now to the other sister of the King maried to Charles BraÌ„don Duke of Suffolke and her children the Ladie Francis and the Ladie Eleonour 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 VVhiche 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 of the Realme I leaue it to the further 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 suche will touching the limitation of the said Croune here 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 writte of VVherein I will not take vpon me any asseueration any resolution or iudgement This onely will I propound as it were by the way of consideratioÌ„ duely depely to be wayghed and thought vpon that is for as muche as the benefitte of this surmised will tendeth to the extrusion of the Queene of Scotland and others altogether and 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 lawfull impediment in them to
ere the first yere of his vsurped reigne turned about he was spoiled and turned out of both Croune and his life withal Yea his vsurpatiō occasioned the cōquest of the whole realme by VVilliā Duke of Normandie bastard sonne to Robert the sixt Duke of the same And may you thinke al safe sound now from like dāger if you should tread the said wrong steppes with Harolde forsaking the right and high way of law and iustice VVhat shal I now speake of the cruel ciuil warres betwene king Stephen and king Henry the second whiche warres rose by reason that the said Henry was vniustly kept from the Croune dew to his mother Maude and to him afterwardes The pitiful reigne of the said Iohn who doth not lamēt with the lamentable losse of Normandie Aquitaine the possibilitie of the Dukedome of Britanie and with the losse of other goodly possessions in France whereof the Croune of England was robbed and spoiled by the vnlawfull vsurping of him against his nephew Arthur VVell let vs leaue these greuouse and lothsome remembrances let vs yet seeke if we may finde any later interpretatiō either of the said statute or rather of the common law for our purpose And lo the great goodnes and prouidence of God who hath if the foresaid exāples would not serue prouided a later but so good so sure apt mete interpretatiō for our cause as any reasonable hart may desire The interpretatiō directly toucheth our case I meane by the mariage of the Lady Margaret eldest daughter to King Hēry the vij vnto the fourth king Iames of Scotland and by the opinion of the same most prudent Prince in bestowing his said daughter into Scotlād a matter sufficient enough to ouerthrow all those cauilling inuētiōs of the aduersaries For what time King Iames the fourth sent his Ambassadour to King Henry the seuenth to obteine his good will to espouse the said Lady Margaret Polid. 26. there were of his Counsaile not ignorant of the lawes and Customes of the Realme that did not well like upon the said Mariage saying it might so fal out that the right title of the Croune might be deuolued to the Lady Margaret and her children and the Realme therby might be subiect to Scotland To the whiche the prudent and wise king answered King H. 7. vvith his Counsaile is a good interpretor of our present cause that in case any suche deuolution should happen it would be nothing preiudiciall to England For England as the chief and principal and worthiest parte of the I le should drawe Scotland to it as it did Normandie from the time of the Conquest VVhich answere was wonderfully well liked of all the Counsaile And so consequently the Mariage toke effect as appereth by Polydor the Historiographer of that Realme and suche a one as wrote the Actes of that time by the instruction of the king him selfe I say then the worthy wise Salomon foreseeing that such deuolution might happen was an interpretour with his prudente and sage Counsaile for our cause For els they neaded not to reason of any such subiection to Scotlande if the children of the Ladie Margaret might not lawfully inherite the Croune of England For as to her husband Englād could not be subiect hauing him selfe no right by this mariage to the Title of the Croune of that Realme VVherevpon I may well inferre that the said newe Maxime of these men whereby they would rule and ouer rule the successiō of Princes was not knowen to the said wise king neither to any of his Counsaile Or if it were yet was it taken not to reache to his blood royall borne in Scotlande And so on euery side the Title of my Soueraigne Lady Queene Marie is assured So that now by this that we haue said it may easely be seen by what light and slender cōsideration the aduersaries haue gone about to strayne the worde Infantes or children to the first degree only Of the like weight is their other consideration imagining and surmising this statute to be made bicause the king had so many occasions to be so oft ouer the sea with his spouse the Queene As though diuers kings before him vsed not oftē to passe ouer the seas As though this were a personal statute made of a special purpose and not to be taken as a declaration of the common law VVhiche to say is most directely repugnant and contrary to the letter of the said statute Or as though his children also did not very often repaire to outward Countries The mariages of King E. 3. sonnes as Iohn of Gaunt Duke of Lancastre that Maried Peters the king of Castiles eldest daughter by whose right he clamed the Croune of Castile as his brother Edmund Erle of Camhridge that maried the yongest daughter as Lionell Duke of Clarence that maried at Milaine Violant daughter and heir to Galeatius Duke of Milan But especialy Prince Edwarde whiche moste victoriously toke in battaile Iohn the French King and brought him into England his prisoner to the great triumphe and reioysing of the realme whose eldest sonne Edward that died in short time after was borne beyond the seas in Gascoine and his other sonne Richard that succeded his grandfather was borne at Burdeaux And as these noble King Edwardes sonnes maried with forainers so did they geue out their daughters in mariage to foraine Princes as the Duke of Lancaster his daughter Philip to the King of Portugall and his daughter Catherin to the king of Spaine his Neece Iohan daughter to his sonne Erle of Somerset was ioyned in mariage to the king of Scottes Iohan daughter to his brother Thomas of wodstocke Duke of Gloucester was Queene of Spaine and his other daughter Marie Duchesse of Britānie Now by these mennes interpretation none of the issue of all these noble women could haue enioyed the Croune of England when it had fallen to them though they had bene of the neerest roial blood after the death of their Aūcestours VVhich surely had bene against the auncient presidentes examples that we haue declared and against the common Lawe the whiche must not be thought by this Statute any thing taken away but only declared and against all good reason also For as the kings of England would haue thought that Realme greatly iniuried if it had bene defrauded of Spaine or any of the foresaid countreies being deuolued to the same by the foresaid Mariages so the issue of the foresaide noble women might and would haue thought them hardly and iniuriously handled yf any such case had happened Neither suche friuolous interpretations and gloses as these men nowe frame and make vpon the statute woulde then haue serued nor nowe will serue A fond imagination of the Aduersaries of the statute of 25. E. 3. But of all other their friuolous and folish ghessing vpō the clause of the statute for Infantes de Roy there is one most fond of all For they would make vs beleue
exclude the said Queene of Scotland being called to the Croune by the Title of generall heritage then is the municipial law of France likewise good and effectual consequeÌ„tly the kings of England haue made all this while an vniust wrongfull clame to the Croune of FraÌ„ce But now to go somewhat further in the matter or rather to come neerer home and to touche the quicke we say as there was some apparent good cause why the king should the twentie and eight yeare of his reigne thinke vpon some limitation 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 Queene Elizabeth it is not to be thought that he would afterward ieoparde so great a matter by a Testament and will whiche may easely be altered and counterfeyted and least of all make suche 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 This supposed vvill geueth occasion of ambitious aspiring For the Kinges example and boldnes in interrupting and cutting away so many branches of the neerest side and line might soone 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 Kinge 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 fall out euen so tending to the vtter exclusion of the late Queene Marie and her Sister Queene Elizabeth if God had not repressed and ouerthrowen the same These reasones then presumptions may seme wel able and sufficient to beare doune to breake doune and ouerthrow the weake and slender presumptions of the Aduersaries grounded vpon vncertaine and mere surmises ghesses and coÌ„iectures as among other that the king was offended with the Queene of Scotland and with the Ladie Leneux VVhich is not true And as for the Ladie Leneux it hath no maÌ„ner 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 suche 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 Realme 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 offeÌ„ded with the Frenche Queenes children why did he disherite the Ladie Francis and the Ladie Eleonor also Their other presumption which they ground vpon the auoyding of the vncertenty of the succession by reason of his will 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 as contrarywise it is subiecte to more vncerteintie and to lesse suertie than before Succession to the Croune more vncerten by the supposed vvill than before For whereas before the right and clame to the Croune hong vpon an ordinarie and certaine course of the common lawe vpon the certaine and assured right of the royall and vnspotted blood yea vpon the very lawe of nature whereby many inconueniences manie troubles daungers and seditions are in al Countries politikely auoyded so now depending vpon the statute onely it is as easie by an other statute to be infringed and ouerthrowen and depending vpon a Testament it 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 for many other like coÌ„sideratioÌ„s The Monuments of all antiquitie Much forgerie and counterfeyting of TestameÌ„ts the memorie of al ages of our owne age dayly experience can tel and shewe vs many lamentable examples of many a good lawfull TestameÌ„t by vndue and craftie meanes by false suborned witnesses by the couetous bearing and maintenance of such as be in authoritie quite vndone and ouerthrowne VVherefore Valerius Maximus crieth out against M. Crassus Valerius Maximus dict et fa. lib. 9. 6. 4. and Q Horiensius Lumina Curiae ornamenta Fori quod â—celus vindicare debebant inhonesti lucri captura inuitati authoritatibus suis texerunt This presuÌ„ption 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 importance of such a matter to reste vpon the validitie or inualiditie 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 will and Testament Ye shall nowe heare also why we thinke he did neuer attempt or enterprise any such thing It is well 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 all Chantries and Colleges he did neuer or very litle practise and execute this authoritie And shall we thinke vnlesse full and sufficient proofe necessarily enforce creditte that the King to his no present commoditie and aduantage but yet to his greate dishonour and to the greate obloquie of his subiectes and other Countries to the notable disherison of so may the next royall blood did vse any such authoritie as is surmised Againe if he had made any suche assignation who doubteth but that as he coÌ„ditioned in the said pretensed will with his noble daughters In this supposed vvill is no condition for the mariage of the heires of the L. Francis as is for the Kinges ovvne daughters to marie with his Counsels aduise either els not to enioy the benefitte of the succession he would haue tyed the said Ladie Francis and Ladie Eleonours heirs to the same condition Further more I am driuen to thinke that there passed no such limitation by the said king Henries will by reason there is not nor was these many yeares any original copy therof nor any authentical Record in the ChaÌ„cerie or els where to be shewed in all England as the Aduersaries them selues confesse And in the copies that be spread abrode the witnesses pretended to be preseÌ„t at the signing
against them by any partie iudiciallye conuented for his better aduantage yet as the case standeth nowe L. Famosi ff and l. Tul. maies l. muliere ff de accusat there is no cause in the worlde to discredit their testimonie yea and by the waye of accusatiō also suche persons as be otherwise dishabled are in treason and other publike matters touching the state enhabled both to accuse testifie As for the eleuen witnesses the best of them Sir Iohn Gates we know by what meanes he is departed out of this life One other the said VVilliam Clarke is so gone from them that he geueth good cause to misdeeme and mistrust the whole matter Howe many of the residue liue I know not To whom perchaunce some thing might be said if we once knowe what them selues say VVhich seeing it doth not by authenticall recorde appeare bare names of dumme witnesses can in no wise hinder deface so solemne a testimonie of the foresaid L. Paget and Sir Edwarde Mountague Neither is the difficultie so great as the Aduersaries pretend Hovv a negatiue may be proued in prouing Negatiuam facti VVhich as we graunt it to be true when it stādeth within the limites of a mere negatiue so being restraigned and referred to time and place may be as well proued as the affirmatiue It appeareth nowe then by the premisses Gloss Doct. c. bona de elect that the Aduersaries argumentes whereby they would weaken and discredit the testimonie either of the witnesses or of the executours that haue or may come in against the said pretensed will are but of smal force and strength And especially their slēder exaggeration by a superficial Rhetorike enforced VVhereby they would abuse the ignorance of the people and make them beleue that there was no good and substātial prooffe brought foorth against the forgerie of this supposed will bycause the vntrueth of the same was not preached at Poules Crosse and declared in al open places and assembles through the Realm when they knowe wel inough that there was no necessitie so to doe And that it was notoriously knowen by reason it was disclosed by the saide Lorde Paget as wel to the Counsaile as to the higher and lower house of the Parliament And the foresaid forged Recorde in the Chancerie therevpon worthely defaced and abolished The disclosing whereof seing it came foorth by such in such sort order as we haue specified as it doth nothing deface or blemish the testimonie geuen against the said supposed will whether it were of any of the witnesses or executours so is ther no nede at all why any other witnesses bysides those that haue already impugned the same should be now farther producted Hovv and vvhen the later testimonie is to be accepted before the former I denie not but that if any suche witnesse or executour had vpon his othe before a lawfull Iudge deposed of his owne certaine notice and knoweledge that the said will was signed with the Kinges own hande in case he should afterward cōtratrie and reuoke this his solemne deposition it ought not lightly to be discredited for any suche contradiction afterward happening But as I haue said such authenticall and ordinarie examinatiōs depositiōs we find not nor yet heare of any such so passed Now cōtrariwise if any of the said witnesses or executours haue or shall before a competent Iudge especially not producted of any partie or against any partie for any priuate suit commēced but as I haue said moued of conscience onely and of a zeale to truth and to the honour of God the Realme freely voluntarilie discouer and detecte suche forgerie although perchance it toucheth them selues for some thing done or said of them to the contrary or being called by the said cōpetent Iudge haue or shall declare and testifie any thing against the same this later testimonie may be well credited by good reason and law VVhereas they would nowe inferre that either this pretensed will was King Henries will or that he made none at all I doo not as I haue said entende nor neede not curiously to examine and discusse this thing as a matter not apperteining to our principal purpose And well it may be that he made a will conteining the whole tenour of this pretensed will sauing for the limitation of the Croune and that these supposed witnesses were present either when he subscribed the same with his own hand or when by his cōmaundement the Stampe of which and of his owne hand the cōmon sort of men make no difference as in dede in diuers other cases there is no difference whiche these witnesses might take to be as it were his owne hand was set to the wil. This I say might after some sort so be And yet this notwithstanding there might be as there was in deede an other will touching the pretensed limitation of the Croune by the Kinges owne hande counterfeyted and suborned after his death falsly and colourably bearing the countenance of his owne hand and of the pretensed wittnesses names How so euer it be it is but to smal purpose to goe about any full and exquisite answere touching this point seeing that neither the original surmised wil whereof these witnesses are supposed to be priuy is extant nor their depositions any where appeare nor yet that it appeareth that euer they were as we haue said iudicially examined Seeing nowe then that if it so falleth out that the principal will and that whiche was by the great Seale exemplified and in the Chancery recorded had not at least touching the clause of limitation assignement of the Croune the Kings hand to it we neede not nor wil not tarie about certain scrolles and copies of the said will that the Aduersaries pretēd to haue ben either writtē or signed with his hand A kingdom is to heauy to be so easely caried away by suche scrolles and copies VVhen all this faileth the Aduersaries haue yet one shift left for the last cast They vrge the equitie of the matter and the mind of the Parlament VVhich is they say accomplished and satisfied by making this assignatiō for the establishing of the succession 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 onely without any hand writing VVhiche 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 euill dealing the whiche the Aduersaries would haue vs in no case to misdoubt or mistrust in this will VVhereas the notoriousnes of the fact the lamentable euēt 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 infringe the whole Acte VVhy the stampe can not counteruaile the Kinges hand in this case For this is a statute correctorie and derogatorie to the commō course of the lawe as cutting away the succession of the lawfull true inheritours It is also as appeareth by the tenour of the same a most greuouse penal lawe and therfore we may not shift or alter the wordes of the lawe Neither may we supply the manner and doing of the acte prescribed by any other act equiualent So that albeit in some other thing the Stampe or the Kinges certaine knowen consente may counterpaise his hande yet as the case standeth here it will not serue the turne by reason there is a precise order and forme prescribed appointed VVerfore if by a statue of a Citie Ioan Andr in adit specul tit derequisit consul ad finem there be certaine persones appointed to do a certaine acte and the whole people do the same acte in the presence of the said persones the acte by the iudgement of learned Ciuilians is vitious 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 where the law appointeth prescribeth a certaine platforme L. Si fundus ff de rebus eorum c. de rebus Ecclesiae in 6. whereby the Acte must be bound and tyed in that case though the reason of the lawe ceasse yet is the acte voyd and naught And whereas the Aduersaries obiecte against this rule the Parlamentes made by Queene Marie An ansvvere to the aduersaries touchinge Actes of Parlament alleaged to proue that the Kinges ovvne hād vvas not necessarie to the supposed vvil without the vsual style called 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 words therin mētioned it is not there limited appointed that the forme of the style therin sette foorth should be obserued in euery writ And therfore not to be compared vnto the said statutes of 28. and 35. Henrici octaui wherein by special wordes one expresse forme 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 ful answere vnto this matter it is to be noted that the writtes being the Actes of the Court though they want the prescript forme set foorth either by the cōmon law or statute yet are not they nor the iudgements subsequent ther vpon abated or void but only abatable and voidable by exception of the partie by iudgemēte of the the Court. 18. E. 3. fo 30. 3. H. 4 fol. 3. 11. 11. H. 4. fol. 67. 9. H. 6. fol. 6. 19. H. 6 fo 7. 10 35. H. 6. fo 12. 10. H. 6. fol. 16. 3. H. 6 fo 8. 33. E. 3. fo 13. Vide Prisot 33. H. 6. fol. 35. For if the partie without any exceptiō doe admitte the forme of the said VVritte and pleade vnto the matter whervpon the Court doth procede then doth the VVritte the iudgement there vpon following remanine good and effectual in lawe And therefore admiting that the said statute of 35. H. 8. had by speciall wordes appointed the said style to be put in euery VVritte and that for that cause the said VVritts of Somons were vitious wanting their prescript forme yet when the parties vnto the said VVrittes had admitted them for good both by theyr election and also by their appearence vpon the same the lawe doth admit the said VVrittes al actes subsequent vpon the same to be good and effectuall And yet this maketh no prooffe that therfore the said supposed will wanting the prescript order fourme should likewise be good and effectual in lawe For as touching specialties estates and conueiances or any other externall acte to be done or made by any person whose forme and order is prescribed either by the common lawe or by statute 9. H. 6. fol. 35. 35. H. 6. fo 34. 40. E. 3. fol. 2. if they want any part of their prescript forme they are accompted in law to be of no validitie or effect As for example the lawe doth appoint euery Specialtie or Deede to be made either in the first persone or in the third persone Therefore if parte of a Deede be made in the first person and the residue in the third person that Deede is not effectual but void in the Law Bysides that the lawe hath appointed 40. E. 3. fol. 35. 21. E. 4. fo 97 7. H. 7. fo 15. that in euery Deede mentioned should be made that the partie hath put to his Seale to the same If therfore 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 lykewise the lawe geueth authoritie to the Lord to distraine vpon the land holden of him for his rentes seruices due for the same And farther doth appoint to carie or driue the same distresse vnto the pound there to remaine as a gage in lawe for his said rentes seruices 9. E. 4. fol. 2. 22. E. 4 fo 47. 29. H. 6. fo 6. 29. lib. Assis P. 64. If the Lord shal either distraine his Tenant out of his Fee or Seignory or if he shal labour and occupie the Chatles distrained the distresse so taken by him is iniurious wrōgful in law forasmuch as he hath not done according to the prescribed order of the lawe The statute made An. 32. H. 8. geueth authoritie vnto Tenant in taile and to others being seised of land in the right of their wiues or Churches to make leases of the same VVherin 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. 27. H. 8. 6. 10. Henrici octaui of Bargaines and sales of land appointeth a forme and order for the same that they must be by writing indented 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
take the succession of the Croune it were any thing reasonable or euer was once meant of the ParlameÌ„t that the King without cause should disherite and exclude them from the title of the Croune On the other side if ther were any such impedimeÌ„t whereof this surmised will 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 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 L. si pater ff Quae in frau credit L. fili fami ff de Dâ—rat L. 1. 6. quae res pign l. obligation ff de pigno c. in gener de Regum iuris in 6. L. quidaÌ„ ff de ver sig L. vt grad §. 1. de uumer hono L. permitteÌ„do cuÌ„ notatis ff de iure dotiuÌ„ In geuing generall authoritie that seemeth not to be comprised that the partie vvould not haue graunted being specially demaunded Generall vvordes must be referted to hable persons L. 2. c. de Nopall L. sin §. in computatione De iure deliber ibi notat Alciat in l. 1. de ver significat 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 generall authoritie to do any thing seemeth not to geue him authoritie to do that thing whiche he would not haue graunted if his minde therein had bene seuerally and specially asked and required Againe generall wordes either of the Testatours or of such as make any contract especially of statutes touching any persons to doe or enioy any thing ought to be restrained and referred to hable mete and capable persons onely It is furthermore a rule and a Principle that statutes must be ruled measured and interpreted according to the minde and direction of the generall and common lawe VVherefore 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 case there were any suche surmised impediment as also on the other side likewise if there were no suche supposed impediment For here an other rule must be regarded which is that in Testaments Contractes and namely in statutes the generalitie of wordes must be gently and ciuily moderated and measured by the coÌ„mon lawe and restrained when so euer any man should by that generalitie take any dammage and hurte vndeseruedly Yea the Statute shall rather in that casse ceasse and quaile and be taken as void As for example it appe eth by the Ciuill lawe that if it be enacted by statute in some Cities that noman shall pleade against an Instrument no not the Executour yet this notwithstanding if the Executour make a true and perfect Inuentorie of the goodes of the Testatour if he deale faithfully and truely rather than he should wrongfully and without cause paie the Testatours debt of his owne he may come and pleade against the InstrumeÌ„t VVherefore the kings doings seeme either muche defectiue in the said Ladie Francis Ladie Elenour or much excessiue in their children And so though he had signed the said will with his hand yet the said doings seme not conformable to the mind and purpose of the Parlament VVe will now go forward and propound other great and graue coÌ„siderations seruing our said purpose and intent VVhereof one is that in limiting the Croune vnto the heires of the bodie of the Lady Francis the same Ladie then and so long after liuing the said King did not appoint the SuccessioÌ„ of the Croune according to the order meaning of he honorable Parlament forasmuch as the said Acte of Parlament gaue to him authoritie to limite and appoint the Croune to such persone or persones in reuersioÌ„ or remainder as should please his Highnes Meaning thereby some persone certaine of whome the people might haue certaine knowledg vnderstanding after the death of king Henrie the eight VVhich persones certaine the heires of the Ladie Francis could not by any meanes be intended 11. H. 4. fo 72. 9. H. 6 fo 24. 11. H. 6. fol. 15. forasmuch as the said Ladie Francis was then liuing and therfore could then haue no heires at al. By reason whereof the people of that Realme could not haue cettaine knowledge and perfit vnderstanding of the Succession according to the true meaning intent of the said Acte of parlameÌ„t 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 will not deny but that peradueÌ„ture they might be then certainly knowen But what great mischieffes and incoÌ„uenieÌ„ces might haue ensued and yet may if the wil take place vpoÌ„ that peraduenture 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 should happen to fall to the said heires of the Ladie Francis the same Ladye Francis should then be also liuing who I pray you then should haue had the Croune Paraduenture ye wold say the heires of the body of the Ladie Eleonour to whome the next remainder was appointed Vndoubtedlye that were contrarie to the meanyng of the sayde supposed will forsomuch as the remainder is therby limited vnto the heires of the body of the Ladie Eleonour onely for default of issue of the Ladie Francis VVherby it may be very plainly gathered vpoÌ„ the said supposed wil that the meaning therof was not that the children of the Lady Eleonour should enioye the Croune before the children of the Lady FraÌ„cis But what if the said Lady Eleonour had bene then also liuing which might haue happened forasmuch as both the said Ladie Francis and Ladie Eleonour by common course of nature might haue liued longer then vntil this day who then should haue had the Croune Truly the right Heire whome this supposed will 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 Eleonour lawfully begotten And therefore quite contrarie to the meaning of the said supposed will wherefore I doe verely thinke that it would hardly sinke into any reasonable mans head that had any experience of the great wisdome and aduised doings of King Henry the eight about other matters being of nothing like weight that he would so slenderly and so vnaduisedly dispose the successione of the Croune wherevpon the whole estate of that Realme doth depend in suche wise that they to whome