as other heires should VVhervpon it is to be gathered by dew iust cōstruction of the same statute and hath bene heretofore commonly taken that the common lawe alwayes was yet is that no persone born out of the allegeāce of the king of England whose father and mother were not of the same allegeance should be able to haue or demaund any heritage within the same algeance as heire to any person VVhiche rule I take to be the same supposed Maxime that the aduersaries do meane But to stretche it generally to all inheritāces as the aduersaries woulde seeme to do by any reasonable meanes can not be The statute of Edvv. 3. An. 25. touchetb inberitance not purchase 11. H. 4. fol. 25. For as I haue said before euery stranger and Alien borne may haue and take inheritance as a purchaser And if an Alien do Marie a woman inheritable the inheritance therby is both in the Alien also in his wife the Alien thereby a purchaser No man doubteth but that a Denizon maye purchase landes to his owne vse but to inherit landes as heire to any person within the allegeance of England he can not by any meanes So that it seemeth very plaine that the said rule bindeth also Denyzons doth onely extend to Descentes of inheritance and not to the hauing of any lande by purchse Now will we then consider whether this rule by any reasonable cōstruction can extend vnto the Lady Marie the Queene of Scotland for and concerning her title to the Croune of England It hath bene said by the Aduersaries that she was borne in Scotland whiche realm is out of the allegeance of England her father and mother not being of the same allegeāce therfore by the said rule she is not inheritable to the Croune of England Though I might at the beginning very wel and orderly deny the consequent of this argumente yet I wil first examin the Antecedent euen by the cōmon opinion and sentence of English men then will I consider vpon the consequent And this I intend of purpose only to discouer the improuidence of the aduersaries whiche in a matter where they couet most to looke vnto them selues there they least of all prouide for the warrantize of theyr cause by their owne pretensed lawes of the Realme of England But I mynde not hereupon so to ouer rule the matter as any preiudice may thereby be created against the Kynges of Scotland who haue alwayes kept and still doe kepe and enioye with a plain profession most iust clame in their owne right ouer their subiectes a supreme authoritie power not depending by any lawe right or custome vpon any other Prince or potentate in the world VVell then to come to the Antecedent so it is that the Queene of Scotland was borne in Scotland it must nedes be graunted but that Scotland is out of the allegeance of England though the sayde Queene and all her subiectes doe iustlye affirme the same yet there is a verie greate number of men in England both learned and others whiche are not of that opinion but earnestly auouche the contrary being led persuaded therunto as they say by diuerse Histories Registers Recordes and Instruments remayninge in the Treasurie of that Realme wherin is mentioned as they also saye that the Kynges of Scotland haue acknouleged the Kyng of England to be the superiour Lorde ouer the Realme of Scotland haue done homage and fealtie for the same VVhich being true though all Scotsmen denie it as Iustlie they may for the homage fealtie whiche those men speake of was not exhibited nor done in any such respect as they surmise but in consideration of the tenures of certein Segnories Lands tenements hereditaments lyeing in Northumberland Cumberland other Shyres of England whiche now the Kinges of Scotland want and then did enioye holde of the Kyng of England As cōmonlie it is sene in sondrie parts of Christindome Kyngs and Princes hauyng distinct and absolute regiments not depending of any other potentate to holde neuerthelesse one of an other diuerse landes townes and countries lyeing within the marches of the one or the others dominions But admit it to be true whiche these men doe so auouche then Scotlande must nedes be accompted within the allegeance of England euen by their owne lawes of the same Realme and by the common opinion of their owne nation And although sins the tyme of Kinge Henry the sixt none of the Kinges of Scotlande haue done the said seruice vnto the Kinges of England yet that is no reason in the lawe of England to saye that therefore the Realme of Scotland at the tyme of the birth of the sayd Ladie Marie Queene of Scotlande being in the thirtie and fourth yeare of the raigne of the late Kinge Henrie the eight was out of the allegeance of the Kinges of England For the lawe of that Realme is very plain that though the Tenant do not his seruice vnto the Lorde yet hath not the Lord thereby lost his Seignorie The Lorde loseth not his seignorie though the tenante doth not his seruice For the lande still remaineth within his Fee Seignorie that notwithstanding But peraduenture some will obiecte and saye that by this reason France should likewise be said to be within the allegeance of England forasmuch as the possessiō of the Croune of France hath bene within a litle more then the space of one hundred yeares nowe last past laufully vested in the Kinges of England whose right and title still remaineth To that obiection it may be answered that there is a great differēce betwene the right title which the kings of England clame to the Realm of Frāce the right title which they clame to the Realme of Scotlād For although it be true that the kings of Englād haue bene lawfully possessed of the Croune of France yet during such time as they by vsurpation of others are dispossessed of the said Realme of Fraunce the same Realme by no meanes can be said to be within their allegeance especially considering how that syns the time of vsurpation the people of France haue wholy forsaken their allegeance and subiectiō which they did owe vnto the kings of England haue geuen submitted them selues vnder the obediēce allegeāce of the frēsh But as for the Realme of Scotlande it is otherwise For the Title whiche the Kinges of England by the opinion of these men may clame to the Realme of Scotland is not in the possession of the lande and Croune of Scotlande but onely in the seruice of homage and fealtie for the same And though the Kinges of Scotland many yeres haue intermitted to doe the said homage fealtie vnto the Kinges of Englande yet for all that the Kinges of Scotland can not by any reason or lawe be called vsurpers and vniust possessors And thus all indifferente men not ledd by affections may well see by the recordes testimonies of
most open and euidente so it is moste conformable to the lawe of God of Nature and of that Realme And consequentlye in a manner of all other Realmes in the worlde as growing by the nearest proximitie of the Royal blood She is a Kinges and a Queenes daughter her selfe a Queene daughter as is before declared to the late King Iames of Scotlande sonne to Ladie Margarete the eldest Syster to the late King Henrie the eight VVhose daughter also the late Ladie Lenoux was by a later husbande But Ladie Frauncis late wife to Henrie Marques Dorsette afterwarde Duke of Suffolke and the Ladie Eleonour late wife to the Earle of Cumberlande and their Progenie proceede from the Lady Marie Dowager of Fraunce yongest Sister of the sayd King Henrye late wyfe to Charles Brandon Duke of Suffolke as is before declared I might here fetche foorth olde farne dayes I might reache backe to the noble worthie Kings long before the Conquest of whose Royal blood she is descended VVhiche I Intend not to treat vpon at this tyme. And though perhappes it might seme not much to enforce her title yet may it serue to proue her no stranger to England being of so long continuance and so many wayes descended of the kings and Royal blood of that Realme But the Argumentes and prouffes whiche we meane to alleage and bring forth for the confirmation of her right and title in Succession as Heire apparent to the Croune of England are gathered and grounded vpon the lawes of God and nature and not onely receaued in the Ciuile policies of other nations but also in the olde lawes and Customes of the Realme of England by reason approued by vsage and longe continuance of tyme obserued from the first constitution of that Realme in politicall order vnto this present day And yet for all that hath it bene and yet is by some men attempted artificiallye to obiecte and caste many mystie darke cloudes before mennes eyes to kepe from them if it may be the cleare light of the sayd iust title the whiche they would extinguish or at the least blemish with some obscure shadow of lawe but in deede against the lawe and with the shadowe of Parlamentes but in deede against the true meaning of the Parlamentes And though it were enough for vs our cause being so firmely and suerly established vpon all good reason and lawe to stande at defence and only to auoide as easely we may their obiections whiche principally and chiefly are grounded vpon the common lawes and Statutes of that Realme yet for the bettering and strengthening of the same we shall Lay forth sundrie great inuincible reasons conioyned with good and sufficient authoritie of the lawe so approued and confirmed that the Aduersaries shal neuer be able iustly to impugne them And so as we trust after the reading of this Treatise and the effectes of the same well digested no maner of scruple ought to remaine in any indifferent mans hart concerning her right and title VVhose expectation and conscience allthough we truste fully in this Discourse to satisfie doubt nothing of the righteousnes of our cause yet must we nedes confesse the manner forme to entreate therof to be full of difficulty perplexity For such causes of Princes as they be seldome and rare so is it more rare strange to finde them discoursed discussed and determined by any lawe or statute albeit nowe then some statutes tende that waye Inst de iust iure â— fin Neither do the lawes of England nor the Corps of the Romaine and Ciuil lawes medle so muche with the direction of the right L. princeps â— de leg l. dignuÌ„ vâ—x C. eodem and titles of kings as with priuate mens causes And yet this notwithstanding for the better iustification of our cause albeit it I denie not but that by the common lawe it must be knowen who ought to haue the Croune and that the common lawe muste discerne the right aswel of the Croune as of subiectes yet I saye that there is a great difference betwene the Kings right and the right of others The common lavve of England is rather grounded vpon a generall custome than vpon any lavve vvritten And that the title of the Croune of that Realme of England is not subiect to the rules and principles of the common lawe of that Realme as to be ruled and tryed after suche order and course as the inheritance of priuate persones is by the same For the proofe whereof let vs consider what the common lawe of that Realme is and how the rules thereof be grounded and do take place It is very manifeste and plaine In Prologo suo eiusdeÌ„ li. fo 1. 2. De dict Ranulpho Glanuilla vide Giraldum Cambren in topogra de VVallia that the common lawe of the Realme of England is no lawe written but is grounded onely vpon a common and generall custome throughout the whole Realme as appeareth by the Treatise of the auncient famous VVriter of the lawes of the Realme named Ranulphus de Glanuilla who wrote in the time of the noble King Henrie the second of the lawe and Custome of the Realme of England being then and also in the time of the raigne of King Richarde the firste the chiefe Counsailour and Iustice of the same king and also by the famouse Iustice Fortescue in his booke whiche he wrote being Chauncellour of England De laudibus Legum Angliae Fortescue de lau Leg. Angl. c. 17. 8. E. 4. 19. 33. H. 6. 51. Pinsons prime And by 33. H. 6. 51. and by E. 4. 19. VVhiche Custome by vsage and continuall practise heretofore had in the kinges Courts within that Realme is onely knowen and mainteined wherein the English nation seeme much agreable to the olde Lacedemonians who many hundred yeres past Inst de in re natura gent. ciuil §. ex non script most politikely and famously gouuerned their common VVealth with lawe vnwritten whereas among the Athenians the writen lawes bare all the sway This thing being so true as with any reason or good authoritie it can not be denied then we are further to consider whether the kinges title to the Croune can be examined tried and ordered by this common Custome or no. Yf it may then must yt be proued by some recorde that it hath bene so vsed otherwise the aduersaries only say it and nothing at all proue it For nothing can be sayde by lawe to be subiecte to any custome vnlesse the same hath bene vsed accordingly and by force of the same custome But I am well assured The Aduersaries haue shevved no rule of the common lavve that bindeth the Croune that the aduersaries are not able to proue the vsage and practise thereof by any record in any of the Kings courts Yea I will further say and also proue that they neither haue shewed nor can shew any one rule general or special of the
England that the Realme of Scotlande is within the allegeance of England And so is the AntecedeÌ„t or first proposition false And yet that maketh no proufe that the Realme of France likewise should nowe be sayde to be within the allegeance of the Kings of England by reason of the manifest and apparent difference before shewed But what if the antecedent were true as the aduersaries saye it is and all Scotsmen constantly affirme it to be Yet it is very plaine that the sayde consequent and conclusion can not by any meanes be true The causes vvhy the Croune cannot be comprised vvithin the pretended Maxime and that principallye for three causes whereof one is for that neyther the Kinge nor the Croune not being specially mentioned in the said rule or pretended Maxime can be intended to be within the meaning of the same Maxime as we haue before sufficently 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 bicause the rule doth onely dishable Aliens to demaunde any heritage within the allegeance of England VVhiche rule can not be stretched to the demaunde of the Croune of England which is not with in the allegeance of England but is the verie allegeance it selfe As for a like example it is true that all the landes within the Kinges dominion are holden of the Kinge either mediatly or immediatly and yet it is not true that the Croune by whiche onely the Kinge hath his Dominion can be said to be holden of the King VVithout the Croune there can neither be King nor allegeance For without the Croune there can be neither King nor allegeance And so long as the Croune resteth onelye in demaunde not being vested in any persone ther is no allegeance at all So that the Croune can not be saide by any meanes to be within the allegeance of England and therfore not within the wordes of the said rule or Maxime The title of the Croune is also out of the wordes and meaning of the same rule in an other respect and that is bicause that rule doth onely dishable an Alien to demaund landes by descent as heire For it doth not extend vnto landes purchased by an Alien as we haue before sufficiently proued And then can not that rule extende vnto the Croune being a thinge incorporate the right wherof doth not descend according to the common course of priuate inheritance but goeth by succession 40. E. 3. fol. 10. 13. E. 3. Tiâ— Bref 264. 16. E. 3. iurans de sait 166. 17. E. 3. Tit. sâ—iâ—e sac 7. A Deane a Person a Priour being an Alien may demande lande in the right of his corporation An 3. R. 2. 6. C. 3. fo 21. tit droit 26. lib. Ass p. 34. 1â— li. Ass tit enfant 13. H. 8. fo 14. 7. E. 4. fol. 10. 16. E. 3. iurans de â—ait 9. H. 6. fol. 33. 35. H. 6. fol. 35. 5. E. 4 fol. 70. 49. li. Ass A. 88. 22. H. 6. fol. 31. 13. H. 8. fol. 14. as other corporations do No man doubteth but that a Prior Alien being no denizon might alwayes in time of peace demaund land in the right of his corporation And so likewise a Deane or a Person being Aliens no denizons might demaund lande in respecte of their corporations not withstanding 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 secoÌ„d And although the Croune hath alwaies gone according to the common course of a Descent yeth 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 Letters Patentes by reason of his Nonage as other infantes may doe but shall alwayes be said to be of full age in respect of his Croune euen as a Person Vicare or Deane or any other person incorporate shal be VVhiche can not by any meanes be said in lawe to be within age in respect of their corporations although the corporation be but one yere olde Bysides that the Kinge can not by the lawe auoide the Letters Patentes made by any vsurper of the Croune vnlesse it be by acte of Parlement no more then other persones incorporate shall auoide the grauntes made by one that was before wrongfullye in their places and romes whereas in Descentes of inheritance the lawe is otherwise For there the heire may auoide all estates made by the disseasour or abatour or any other persone whose estate is by lawe defeated VVhereby it doth plainely appeare that the King is incorporate vnto the Croune The King is alvvaies at full age in respecte of his Croune hath the same properly by succession and not by Descent onely And that is likewise an other reason to proue that the Kinge and the Croune can neither be sayde to be within the wordes nor yet with in the meaning of the sayde generall rule or Maxime The third and most principall cause of all is for that in the said statute wherupon the said supposed rule or Maxime is gathered The Kings childreÌ„ are expresly excepted from the surmised Maxime the children descendantes and descended of the blood royall by the wordes of Infantes de Roy are expresly excepted out of the sayd supposed rule or Maxime VVhiche wordes the aduersaries do muche abuse in restraining and construing them to extende but to the first degree onely whereas the same wordes may very well beare a more large ample interpretatioÌ„ And that for three causes coÌ„sideratioÌ„s Libe roruÌ„ ff de verborum signific First by the Ciuil lawe this word Liberi which the worde Infantes being the vsuall and originall worde of the statute written in the Frenche toÌ„gue counteruaileth doth comprehende by proper and peculiar signification not onely the children of the first degree L. Sed si de iÌ„ ius vocaÌ„ doinstit de haere ab intist but other descendants also in the lawe As for example where the lawe sayeth That he vvho is manumissed or made free shall not commence any Action against the children of the Patrone or manumissour vvithout licence L. Lucius ff de haere instit L. Iusta L. NatoruÌ„ L. LiberoruÌ„ de uerb signi L. 2. § si mater al S.C. Tertul there not onely the first degree but the other also are conteined The like is where 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 there the succession apperteineth as well to degrees remoued as to the first Yea in all causes fauourable as ours is this worde Filius a sonne conteinethe
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
statute are omitted the same is vitious and voide in the lawe So likewise the statute made in Anno 32. 32. H. 8. 6. 1. H. 8. geueth authoritie to dispose landes and Testamentes by last VVil and Testement in writing If a man do deuise his lande by his last VVil and Testament nuncupatiue without writing this deuise is insufficiēt in law not warrāted by the said statute VVe leaue of a number of like cases that we might multiplie in the prooff of this matter wherein we haue taried the longer bycause the Aduersaries make so great a countenance therevpon and bycause all vnder one it may serue for the answere also touching the Kinges royal assente to be geuen to Parlamentes by his Letters Patentes signed with his hande which is nothing else but a declaration affirmance of the common lawe no newe authoritie geuen to him to do that he could not doo before or any forme prescribed to bind him vnto Bisides that in this case there is no feare in the worlde of forging and counterfeyting the Kinges hande whereas in the Testamētarie cause it is farre otherwise as the worlde knoweth and dayly experience teacheth And so withall do we conclude that by reason this surmised will was not signed with the Kinges hand it can not any way hurt or hinder the iuste right and clame of the Queene of Scotland to the succession of the Croune of England Now supposing that neither the L. Paget nor Sir Edward Montague and VVilliam Clarke had testified or plublished any thing to the infringing ouerthrowing of the Aduersaries assertiō touching the signing of the said will yet is not therby the Queene of Scotlandes title altogether hindred For she yet hath her iust and lawful defence for the oppugning of the said assertion as well against the persones and sayings of the witnesses if any shall come foorth as otherwise shee may iustly require the said wil to be brought forth to light and especially the signing of the same with the Kings hande to be duely and consideratly pondered weyghed and conferred She hath her iust defence and exeptions and must haue And it were against al lawes and the lawe of nature it selfe to spoile her of the same And all good reason geueth that the said original will standing vpon the triall of the Kings hande be exhibited that it may be compared with his other certaine and well knowen hand writing And that other things may be done that are requisite in this behalfe But yet all this notwithstanding let vs nowe imagine suppose that the King him selfe whose hart and hand were doubtlesse farre from any such doings lette vs yet I say admitte that he had signed the said will with his owne hande Yet for all that the Aduersaries perchance shal not finde no not in this case that the Queenes iuste Title right and interest doth any thing fayle or quayle The supposed vvill can not preiudice the Quene of Scotlād though it had ben signed vvi h the Kinges ovv e hand Or rather lette vs without any perchance say the iustice and equitie of her cause and the inuincible force of trueth to be suche that neither the Stampe nor the Kinges owne hande can beare and beate it downe VVhiche thing we speake not without good probable and weightie reasons Neither do we at this time minde to debate discourse what power and autoritie and how farre the Parlament hath to doe in this and like cases VVhiche perchance some other would here do VVe will only intermedle with other thinges that reache not so farre nor so high and seeme in this our present question worthy and necessarie to be considered And first before we enter into other matters we aske this reasonable and necessarie question whether these general words wherby this large ample authoritie is cōueied to king Henry must be as generally and as amply taken or be restrained by some manner of limitation and restriction agreable to such mind and purpose of the Parlament as must of very necessitie or great likelihod be construed to be the very mind and purpose of the said Parlament Ye wil say perchance that the power and authoritie of assignation must be taken generally and absolutely without exception sauing for the outward signing of the wil. Trueth it is there is nothing els expressed but yet was there some thinges els principally intended and yet for all that needed not to be specified The outward manner was so specially and precisely appointed and specified to auoyde suspitious dealing to auoide corruption and forgery And yet was the will good and effectual without the Kinges hande Ther must needes be some qualification and restraint of the general vvordes of the statute Yea and the assignation to had ben good had not that restrainte of the Kinges hande bene added by the Parlament But for the qualification of the person to be limited and assigned and so for the necessarie restriction and limitation of the wordes were they neuer so large ample there is though nothing were spoken thereof an ordinary helpe remedie Otherwise if the Realme had ben set ouer to a furious or a madde man or to an idiote or to some foraine and Mahometical Prince and to such a one as stories testifie that King Iohn would haue submitted him selfe his Realme or to any other notorious incapable or vnhable person Matthaeus Parisieusis in Iohan. the generalitie of the wordes seeme to beare it but the good minde and purpose of the Parlament and mans reason doe in no wise beare it If ye graunt that these wordes must nedes haue some good and honest construction and interpretation as reason doth force you to graunt it yet will I aske further whether as the King cutte of in this pretensed will the whole noble race of the eldest sister and the first issue of the yongest sister so if he had cutte of also al the ofspringes as wel of the said yongest sister as of the remnante of the royal blood placed some being not of the said blood perchāce otherwise vnable this assignation had bene good and vailable in lawe as conformable to reason and to the mind and purpose of the Parlamēt It were surely to great an absurdity to graunt it There must be therefore in this matter some reasonable moderation and interpretation as wel touching the persones comprehended within this assignation their qualities for the persons also hauing right yet excluded as for the manner of the doing of the act signing the wil. For the king as King could not dispose the Croune by his will was in this behalfe but an Arbiter and Cōmissioner VVherefore his doinges must be directed and ruled by the lawe according to the good minde and meaning of those that gaue the authoritie And what their minde was it will appeare well enough euen in the statute it selfe It was for the auoiding of all ambiguities doubtes and diuisions
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
A TREATISE TOVVCHING THE RIGHT TITLE AND INTEREST OF THE MOST excellent Princesse Marie Queene of Scotland And of the most noble king Iames her Graces sonne to the succession of the Croune of England VVherein is conteined asvvell a Genealogie of the Competitors pretending title to the same Croune as a resolution of their obiections Compiled and published before in latin and after in Englishe by the right reuerend father in God Iohn Lesley Byshop of Rosse VVith an exhortation to the English and Scottish nations for vniting of them selues in a true league of Amitie An 1584. All Britaine Yle dissentions ouer past In peace faith will growe to one at last Encrease of blesse expected long In Britain was begonne VVhen suche a mother dyd bring foorth VVith so good happe a sonne MARIA SCOTORVM REGINA IACOBVS VI SCOTORVM REX Through princelie grace and pietie Great is the mothers fame The king her sonne doth yeeld muche hope To imitate the same TO THE SACRED AND MOST MIGHTIE EMPEROVR AND TO THE MOST HIGH AND PVISSANT kynges and Soueraigne Princes of Christendome Iohn Lesley Byshop of Rosse wysheth peace and perpetuall felicitie SACRED AND MOST MIGHTIE Emperour and ye most puyssant kynges and Princes Christian yf you call to mynde and memorye all formes of common wealthes wherein diuerse people in tymes past aswell heathen as Christians haue bene preserued you shall finde none eyther for peace and tranquyllitie more established or for Maiestie more gloriouse than that where one hathe gouerned whiche laufullie entred as right heyr in succession and moderated all thinges with sincere indifferencio as a Iust and vpright Iudge And to omitt that this forme of Gouernemēt resembleth that regimēt wherwith God ruleth the whole world and how therfore it is the best to omitt also that the leagues of forrain Princes with their mariages and mutuall agreementes in loue and amitie are herein also included and how therfore it is profitable Likewyse to lett passe the generall peace quiett and tranquillitie whiche this assureth to all men and how therfore it is amiable the trueth of this matter will more euidentlye appear if you deeply consider what iniuries and calamities the people of that country is forced to endure where an vsurping Tyrāne not by right of successiō as laufull heir vnto his auncestor but by ambition stronghand violently intrudeth hym selfe vpon an other mans right possession For suche a one by vexing his subiectes with continuall fear oppressing them with wicked exactions and more wicked morders sticketh not to subuert all lawes of God man to the ende that he may rule all alone Thus whiles he most cruelly tirannizeth ouer his subiects and they most mortally doe hate hym what mischiefes and miseries do not burst in vpon any nation by suche a desperate head and suche discorde of membres Vherupon it foloweth well in my Iudgement that the good will of Princes toward their subiectes and the loue of Subiectes toward their Princes is the surest meanes to keepe and preserue the publick weal of any Countrie In somuche as what Region so euer wanteth this must eyther be deuided in it selfe and torne in peces with domesticall troubles or fall in to the handes of straungers Therfore of all nations that haue bene in any age I finde none that by this coniunction of mutuall amitie hathe not bene aduaunced with great felicitye and none on the other syde that by want therof hathe not eyther lyke a sore diseased or wounded bodye languished miserablye or vtterly deuolued in to extreme ruyne and destruction Yea suche misruled nations haue not alone tasted the calamities of their enormityes but haue wickedlye also casten out their vonim vpon others and with suche contagious poyson haue infected their neighboures rownd about them So as all Princes Christian that desire long to Raigne haue hereby to note and learne how it behoueth them not onlie to rule their own Countries without all manner of Tirannie but allso to prouyde so muche as in them lyeth that their neighbours be not oppressed by Tyrannes For suche neyghborhoode can not be but contagiouse because it is the nature of Tyrannes first to ransake and spoyle their own people and afterward to breake owt vpon others and to ruyne them all manner of wayes And this I wryte to the ende that all Christian Princes aswell for their own sake as for Charitie also toward their Christian neighbours should haue some speciall care to helpe that my Soueraigne Ladye Marye Queene of Scotland and the most noble King her sonne be not excluded and barred frome their right of inheritance and succession to the Croune of England after the laufull yssues of King Henrye the eyght be all deceassed Least that by vniust intrusion and inuasion of vnlaufull vsurpers the true heyr be defeated that florishing Kyngedome by tyrannie ruyned and the neighbours adioyning contagiouslye annoyed Fort sithe it is euidently knowen that all those commodities and riches wherwith England hathe plentifully furnished not onlye it selfe but other countries also haue growen specially by this occasion that it hathe bene hitherto sweetlye and peaceablye gouerned by the true and laufull heyrs to the great honour of the Gouernours and commoditie of the Subiectes and seing it is also manifest that after the deceases of all the yssues laufullie descended from Kyng Henrie the eight as I sayd before the Kyngdome of England by right euery waye belongeth vnto Marye the Queene of Scotland who seeth not that if the same Ladye be excluded from her right then not only that Realm shall be spoyled of their own commodities and their neighboures want those helpes which they haue long enioyed but also that Region wil be a neast of Tyrannes where euery familie shall robbe it selfe and as mere straungers spoile and morder one an other Now then because some vniust Competitors incensed with desire of rule doe couer their ambition by pretending a title to the Croune of England I thought it to be a part of my duetie to infringe their vntrue surmises and by strong and weightie argumentes to proue and ratifie the laufull title and right of the Queene and Kynge my Soueraigne Princes For so I hope it will fall owt that all Christian Kinges and Potentates will more reddelye performe suche honorable offices of Courtesie and Charitie as all Princes owe one to an other and that speciallie when they shall see the veritie integritie and iustice of this cause so expresselie declared as no scruple therof can stick in the hart of any indifferent persone For thoughe generallie all Christian Kynges are as it wer so lynked to gether as they should aide and defende eache others honour and dignitie in respect that they are Kynges Yet euery one of them in some one or other particulrr respecte is so allied vnto the Queene and Kyng of Scotland as they owght to take her part and to ioyne with her against her enemies And to surcease from speaking any more of the
obiections whiche your aduersaries pretend to the contrarie And this trauaille longe agoe whiles I was Ambassadour in England I dyd willynglye take in hand aswell thereby to wynne the good willes of many vnto you as for the honour and generall commoditie of your Countrie VVherein at that time I had muche conference with some of the most expert and skillfullest Iudges best practized counseilers towardes the lawes of that land and after many discourses and muche debatinge I clearly sifted owt their opinions and Iudgementes touching this matter And not longe after vpon mature deliberation whē I had well reuolued these thinges in my mind I thought it euery waye agreable to my deutie towarde your Maiesties your Countrie to contriue in some litle volume what I had learned in so longe tyme being also hereunto induced by the persuasion of diuerse Christian Princes whome after my departure out of England coming to visit them I had made acquainted with this matter whiche they were glad to hear and for their better instruction desirous to be infourmed therof at more length by writing VVherevpon first to satisfie the honorable meanynge of those noble personages I compiled and published a Treatise of this matter in latin And now further to accomplishe my deutie in defence of your Royall Dignities and to setle the myndes of the wauering communaltie and for the generall commoditie of all suche as haue any interest in this matter I haue sett forthe this Treatise in English And I verilye hope suche is your princelie good meanyng my most vndoubted Soueraignes that you will accept in good parte this my trauaile as a testimonie of my duetifull good will reuerence seruice to your Maiesties and that you will construe my intention and aduise to this attempte as in your iudgement agreable to the weight of so great a cause and allowe thereof for the manyfold commodities that therehence may arise Now then as a right and laufull combination of manye Regions by iust title of succession belongyng to you most manifestlie argueth and conuinceth a Regall Soueraigntie deriued vnto you by many famouse kynges your Maiesties Auncestors so doeth the same require and exact of you an vnion and coniunction of mindes and a full consent in the vertue and religion of your forefathers For nothinge can be more agreable with the name and title of a king and with the honour and renoume of so noble a successiō as so fortunatly procedeth from suche a mother to suche a sonne than that with suche an vndoubted title right to rule a kyngdome there be annexed an vniforme profession in sincere Religion To whiche ende as the mother hitherto most religiouslie foloweinge the vertue faith and pietie of her noble progenitoures hathe euermore showed suche constancie as that Sexe scarsely beareth so the yong kyng her sonne in succession goeng with her must diligently foresee that in a sincere profession of one selfe same Catholik religion he be not behynd her but that as he hath truely imitated all her other vertues wherein she woonderfully excelleth her own selfe so he resemble her in true faith and in vniformitie of the Catholique Religion And thus the mother can haue no occasion offered her to remitt any part of her true loue and affection towardes her sonne but by daily encrease of naturall affectiōs betwene them she will so answer hym in courteouse kyndnesse as thoughe she be forestalled of his presence yet shall she enioye great comfort of hym in his absence in so muche as all the world at home and abrode shall admire and wonder at their laudable emulation in offices of naturall zeale and pietie Yea thus it will fall out that your own people moued by your example will induce one an other to peace and amitie and freely of their own accorde without any contention will offer vppe vnto you suche kyngdomes regions prouinces as are or shal be due vnto you by right and desire nothinge more than to be vnder the dominion of them whome they see in one mynde faythe and religion with good lawes and true Iustice moderate their common wealthe VVhiche kyngdomes and the Subiectes thereof God the kynge of all kynges which ruleth the hartes of all Princes graunt you grace well to gouerne to the glorye of his holy name to the propagation of his holy churche and to the maintenance of common peace and tranquillitie Amen A PREFACE CONTEYNING THE ARGVMENT OF THIS TREATISE VVITH THE CAVSES mouyng the Author to wryte the same THE deepe prouidence of Almightie God who of nothinge created all thinges most euidently in this poynt showeth it selfe that by his power ineffable he hath not onlye created all thinges but by the same power hath also endewed euery liuyng creature with a speciall guyft grace to continue to renewe and to preserue eache his owne kynde But in this consideration the condition of man kynde amonge and aboue all earthly thinges hath a pearlesse prerogatiue of witt and reason wherewith he onlye is of God graciously indued and adourned Man by the guyft of vvitt reasō hath a greate fresight of thinges to come For by theese excellent guiftes and graces of witt and reason he doeth not onlye prouide for his present necessitie and sauegarde as doe naturally after their sort all brute beastes and euery other thinge voide of reason but also pregnantlie discoursinge from cause to cause and prudentlie applyeng their seuerall courses euentes he gayneth a greate foresight of the daungers and perilles that many yeres after may happen either to him selfe or to his Countrey and then by diligence and carefull prouision doeth inuent some apt and meete remedies for the eschewinge of suche mischiefes as might outragyously afterward occurre And the greater the fear is of more imminent mischief so muche more care and speedier diligence is vsed to preuent and cutt of the same And it is most certaine by the confession of all the world that this care whiche I speake of ought principally to be imployed of euerie man as oportunitie serueth to this ende that therby the Authoritie of the Prince may be kept whole and sound the publik weal of his countrey assured and the cōmon peace tranquillitie of bothe preserued Subiects ought to loue their kinge and to knovv the heyr apparent to the Croune For the obteining whereof as there are many braunches of policie to be desired so one special parte is for subiectes louinglye and reuerentlye to honour and obedientlie to serue their Soueraigne which for the time hath the rule and gouernement the next to foreknowe to whome they owe their alleageāce after the deceasse of their present prince and Gouernour VVhiche being once certain and assuredly knowen procureth when tyme doeth come readie and seruiceable obedience with great comfort in the mean while and afterwarde vniuersal reast and quietnesse of all good Subiectes as on the contrary part throughe discord variance and diuersitie of mindes and opinions about a Successour the
the Lady Margaret Countesse of Sarisburie afterward maried to Pole The third brother Richard duke of Glocestre after the deceasse of his brother King Edward the fowerth caused the yong kyng Edward the fyft his said brothers sonne traiterously to be mordered lyke a Tyranne vsurped the Croune and called him selfe king Richard the third but as he iustly deserued he dyed dishonorably and was slain in the battail beside Bosseworth by king Hēry the seuēth so dyed without issue This seuenth king Henry descended of the house of Lancastre was then the principal persone of the other partie agaynst the house of York But to take away the matter of that contention he maried the said Elizabeth daughter to the sayd King Edward the fouerth The vnion of the houses of York and Lancastre then right heir of the house of York and so by vniting those two houses he dyd cut of all those long and perniciouse broyles Thus I haue brieflye set downe the original cause and the finall ende also of that so great and troublessome faction Yet to procede further touching the said king The yssue of Kinge Henry the seuenth Henry the seuenth he had by his said wyfe Quene Elizabeth a sonne called king Henry the eight for his other sonnes I omit because they died in the life tyme of their father and without issue And he had also two daughters Margaret wyfe of the fowerth kyng Iames of Scotland and Marie the wyfe of the twelueth king Lewes of Fraunce This king Henry the eight had for his first wyfe Catharin daughter to Ferdinando king of Spayn and by her he had a daughter the Ladye Marye afterward Queene of England But vnder a pretence that the sayd Catharin was the wyfe of his deceassed brother Arthur he putt her awaye and brought in Anne Bolleine daughter of Syr Thomas Bolleine knight and by her he had a daughter the most renowmed Lady Elizabeth now Queene of England And afterward he stroke of the head of the sayd Anne and Maryed the Ladye Iane Semer a knyghtes daughter by whom he had his sonne Edward whiche afterward was Kinge Edward the sixt and dyed without yssue Then were called to the crown by succession first the sayd Lady Marie and after her the sayd Ladye Elizabeth now Queene After whose deceasses without any laufull yssue of their bodyes the next place in succession ought of right to remayn to the sayd most noble Ladye Marye now Queene of Scotland But before I enter into the explication of this matter it shall not be farre from the purpose somewhat to speake of these other personnes that chalenge the right of fuccession as properly to them selues belonging King Henry therfore the seuenth by the sayd Queene Elizabeth daughter to king Edward the fowerth had as you haue heard his said sonne king Henry the eight and his sayd two daughters the Lady Margaret wyfe to king Iames of Scotland the fowerth the said Lady Mary wyfe to the sayd king Lewes of Fraunce the twelueth by whom she had no yssue The yssue of Queene Margaret of Scotlād And the sayd king Henry the eight had as I haue sayd by diuerse venters his sayd thre children king Edward Queene Marie and Queene Elizabeth Of the sayd Queene Margaret eldest daughter to the seuenth king Henry of England was by the sayd King Iames the fowerth her first busband begotten and borne the fift king Iames of Scotland father to the sayd most noble Ladye Marie now Queene of Scotland And after the decease of the sayd king Iames the fowerth the same Queene Margaret was maried to Archebald Erle of Anguish and by him had a daughter called the Ladie Margaret Duglasse sometyme the wyfe of Mathew Steward Erle of Leneux by whom she had two sonnes Henry and Charles of whom I will speake here after Mary the yonger daughter of king Henry the seuenth after the decease of her first husband the twelueth king Lewes of Fraunce The yssue of Marye the Frēche Queene by whom she had no yssue was maried to Charles Brandon Duke of Sulffolk by whom she had two daughters Frācise Eleonor For of her sōnes I omitt to speak because they died without issue The said Lady Francise was maried to Henry Gray Marquesse of Dorcestre afterward Duke of Suffolke This Henry Gray begat of her thre daughters to witt Iane Catharin Mary The same Lady Iane eldest of those thre was maried to Gilford Dudley the sonne of Iohn duke of Northumberland a mariage begunne in an vnfortunate houre for it brought with it destruction aswell to them bothe as to their parents and many others The sayd Ladye Catharin was espoused to Henry Harbert eldest sonne of VVilliam Erle of Pembroche And the Ladye Marye yongest of the said three was betrothed to Arthur Gray sonne of VVilliam Gray But bothe those contractes afterward by the procurement and special labour of the parentes rather than vpon good matter as I haue heard were in open court dissolued and pronounced to be of no validitie in law The like happened touching a priuie contract made betwene the same Lady Chatharin the Erle of Hartforde by whom she had two sonnes yet lyuing Of whome I will speak hereafter And thus farre touching the issue of the Lady Francise th one of the sayd two daughters of Charles Brandon by Mary the Frenche Queene Now let vs come to the sayd Lady Eleonor the other daughter of the sayd Mary This Eleonor was maried to George Clyfford Erle of Cumberland who had by her a daughter the Lady Margaret now wyfe to the Erle of Darby whiche two haue issue betwene them yet liuing And this is the true genealogie and pedegrue forsomuch as I could euer learn of all suche issue and ofspring descended of king Henry the seuenth and Queene Elizabeth his wyfe as at this day can claime any right title or interest in the Croune of England The remayn is to adde hereunto somewhat touching the progenie of the before named king Edward the fowerth The yssue of King Edvvard the fouerth This king Edward the fowerth the principall personne of the faction of the whyte Rose had two sonnes whom his brother Richard aspiring to the Croune a patern of the worst marke that euer was in the memory of man caused to be mordred And he had also fower daughters the eldest was Queene Elizabeth the before named wyfe of King Henry the seuenth the cheefe of the faction of the reade Rose as is before mentioned An other of the daughters was the Lady Catharin wyfe to VVilliā Courtney Erle of Deuonshire Of the other two daughters there is left no issue and therfore I omitt them This Lady Catharin had by the sayd Erle of deuonshire a sonne called Henrie Courtney whom his Cosin germain king Henry the eight caused to be beheaded vpon a pretense of treason This Henry Courtney left one onlye sonne called Edward Courtney whom in his tender yeres king Henry the
in the succession of the Croune For the Roial blood where so euer it be found will be taken as a pretious and singular Iewell and will carie with it his worthie estimation honour with the people and where it is dew his right withall Vide Anto CorsetuÌ„ de potest et excell regi q. 100. By the Ciuill lawe the right of the inheritance of priuate persones is hemmed and inched within the bandes of the tenth degre The Blood Roial runneth a farther race so farre as it may be found therfore the great mightie Conquerors are glad faine to ioyne in affinitie with the blood Roial OoÌ„querors glad to ioine vvith the royall blood Henry the first euer fearing the weaknes of their owne bloddie sworde in respect of the greate force and strength of the other For this cause was Henrie the firste called for his learning wisedome Beauclerke glad to consociate and couple him selfe with the auncient Roial blood of the Saxons whiche continueing in the Princely succession from worthie king Alured was cutte of by the death of the good king Edward and by the mariyng of Mathildis being in the fourth degree in lineal descent to the said king Edward was reuiued and reunited From this Edward my sayd souueraine ladie the Queene of Scotland taketh her noble auncient Pedegrue These then and diuers other reasons causes mo may be alleaged for the weighing setting foorth of the true meaning and intent of the said law Now in case these two causes and consideratioÌ„s will not satisfie the aduersaries we wil adioine there vnto an other whiche they shall neuer by any good and honest shift auoid And that is the vse and practise of the Realme as wel in the time foregoing the said statute as afterward VVe stand vpon the interpretation of the common law recited and declared by the said statute L. fin ff de legibus how shal we better vnderstand what the law is therein then by the vse and practise of the said lawe For the best interpretation of the law is custome Common vse and practise the best interpretation of the lavve EodeÌ„ anno Rex cuÌ„ in diebus suis processisset AeldreduÌ„ VigornenseÌ„ EpiscopuÌ„ ad RegeÌ„ Hungariae transmittens reuocauit inde filium fratris sui Edmundi Eduardum cuÌ„ tota familia sua vt vel ipse ver filii eiê° sibi succederent in regnum Flor. histo 1057. But the Realme before the statute admitted to the Croune not only kings children and others of the first degre but also of a farther degre and suche as were plainely borne out of the kinges allegeance The foresaid vse and practise appeareth as wel before as sithens the time of the Conquest Among other king Eduard the Confessour being destitute of a lawful Heire whithin the Realme sent into Hungary for Edward his Nephew surnamed Out law son to king EdmuÌ„d called Ironside after many yeres of his exile to returne into England to the intent the said Outlaw should inherite that Realme whiche neuerthelesse came not to effect by reason the said outlaw died before the sayd king Edward his Vncle. After whose death the said king appointed Eadgar Adeling sonne of the said Outlaw being his next cosen to be his heire as he was of right to the Croune of England And for that the said Eadgar was but of yong and tender yeres and not able to take vpon him so great a gouernement the said king committed the protection as wel of the yong Prince as also of the Realm to Harold Earle of Kent vntil suche time as the said Eadgar had obteined perfit age to be hable to welde the state of a king Flor. bislo 1066. Aelredus Regional leÌ„f de reg AngloruÌ„ ad Regem Henr. â— VVhich Harold neuerthelesse contrary to the trust supplanted the said yong Prince of the kingdome and put the Croune vpon his owne head By this it is apparent that foraine birth was not accoÌ„pted before the time of the Conquest to be a iust cause to repel and reiect any man beinge of the next proximitie in blood from the Title of the Croune And though the said king Edward the Confessors will and purpose tooke no suche force and effect King Stephen and King H. 2. as he desired and the lawe craued yet the like succession tooke place effectuouslye in king Stephen and king Henry the second as we haue already declared Neither will the Aduersaries shift of forainers borne of father and mother which be not of the kings allegeance The aduersaries fond imagination that H. 2. should come to the Croune by compositioÌ„ not by proximitie of blood Rex Stephanus omni haerede viduatus praeter soluÌ„ modo DuceÌ„ Henricum recognouit in conueÌ„tu EpiscoporuÌ„ aliorum de regno Optimatum quod Dux Henr. ius haereditariuÌ„ iÌ„ regnuÌ„ Angliae habebat Et Dux benigne concessit vt Rex Stephanê° tota vita sua suuÌ„ RegnuÌ„ pacifice possideret Ita tamen confirmatuÌ„ est pactuÌ„ quod ipse Rex ipsi tunc praesentes cuÌ„ caeteris regni optimatibê° iurareÌ„t quod Dux Henr. post morteÌ„ Regis si illum superâ—iueret regnum sine aliqua coÌ„ntradictione obtineret Flor. histo An. 1153 The like fond imagination touching King Richardes nephevv Diuersitie of opinions touching the vncle nephue vvhetherof them ought to be preferred in the royall gouuernement help them forasmuche as this clause of the said statute is not to be applied to the kings children but to others as appeareth in the same statute And these two kings Stephen and Henrie the .2 as they were borne in a forain place so their fathers and mothers were not of the kings allegeance but mere Aliens and strangers And how notorious a vaine thing it is that the Aduersaries would perswade vs that the said King Henrie the second rather came in by force of a composition then by the proximitie and nearenes of blood I leaue it to euery man to consider that hath any maner of feling in the discours of the stories of that realm The composition did procure him quietnes and rest for the time with a good and sure hope of quiet and peaceable entrance also after the death of King Stephen and so it followed in deede but ther grew to him nomore right thereby than was due to him before For he was the true heir to the Croune as appeareth by Stephen his Aduersaries owne confession Henry the firste maried his daughter Mathildis to Henry the Emperour by whome he had no children And no dout in case she had had any children by the Emperour they should haue ben heires by successioÌ„ to the Croune of England After whose death she retourned to her father yet did king Henry cause all the Nobilitie by an expresse othe to embrace her after his death as Queene and afrer her her children Not long after she was maried to Ieffrey Plantagenet a Frenchman borne Earle of Aniowe who begat
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
suche is their skill that this statute touching Infantes de Roy was made for the great doubte more in them than in other persones touching their inheritance to their Auncestours For being then a Maxime saie they in the lawe that none could inherite to his Auncestours being not of father and mother vnder the obedience of the king seing the king him selfe could not be vnder obedience it plainely seemed that the kinges children were of farre worse condition than others quite excluded And therefore they saie that this statute was not to geue them any other priuilege but to make them equall with other And that therefore this statute touching the Kinges children standeth rather in the superficial parte of the woorde than in any effect Nowe among other thinges they saye as we haue shewed before that this word Infantes de Roy in this statute mentioned There vvas no doubt made of the Kinges children borne beyonde the seas must be taken for the children of the first degree whiche they seeme to proue by a note taken out of M. Rastal But to this we answer that these men swetely dreamed when they imagined this fonde and fantasticall expositiō And that they shewed them selues very infants in lawe and reason For this was no Maxime or at least not so certaine before the making of this statute whiche geueth no new right to the kinges children nor answereth any doubt touching them and their inheritance but this it saieth that the law of the Croune of England is and alwaies hath bene which lawe saith the king say the Lordes say the Commons we allowe affirme for euer that the kinges children shal be hable to inherite the landes of their Auncesters wheresoeuer they be borne All the doubt was for other persones as appeareth euidētly by the tenour of the statute whether by the cōmon law they being born out of the allegeance of the king were heritable to their Auncestours And it appeareth that the aduersaries are driuē to the hard wall when they are faine to catch holde vpō a selie poore marginal note of M. Rastal of the kinges children not of the kings childrens childrē VVhich yet nothing at al serueth their purpose touching this statute But they or the Printer or whosoeuer he be as they drawe out of the text many other notes of the matter therin cōprised so vpon these French wordes Les enfants de Roy they note in the Margent The Kinges Children but how farre that worde reacheth they saie neither more nor lesse Neither it is any thing preiudicial to the said Queenes right or Title whether the said wordes Infants ought to be taken strictly for the first degree or farther enlarged For if this statute toucheth only the succession of the Kings children to their Auncestours for other inheritance and not for the Croune as moste men take it and as it may be as we haue said very well taken and allowed then doeth this supposed Maxime of forain borne that seemeth to be gathered out of this statute nothing anoy or hinder the Queene of Scotlandes Title to the Croune as not therto apperteining On the other side if by the inheritance of the Kings children the Croune also is meant yet neither may we enforce the rule of foraine borne vpō the kings childrē which are by the expresse wordes of the statute excepted neither enforce the word Infants to the first degree onely for such reasons presidents and examples and other proouffes largely by vs before set forth to the contrarie seing that the right of the Croune falling vpon thē they may well be called the kings Children or at the lest the children of the Croune Ther is also one other cause why though this statute reach to the Croune This statute toucheth not the Q. of Scotlād as one not borne beyond the seas and may and ought to be expounded of the same the said Queene is out of the reach and compasse of the said statute For the said statute can not be vnderstanded of any persones borne in Scotlande or wales but onely of persones borne beyond the sea out of the allegeance of the king of England that is to witte France Flādres such like For England Scotland and wales be all within one Territorie and not diuided by any sea And all 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 vnderstād in Scotland wales aswel as in England bicause they be all within one continent compassed with fower seas And likewise be many auncient statutes of that Realme written in the Normane French whiche haue these wordes deins les quatre mers that is within the fower seas Nowe concerninge 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 statute is also of childrē borne beyond the sea out of the allegeance Vide statuta VValliae in magna Charta VVales vvas vnder the allegeance of England before it vvas vnited to the Croune with diuers other branches of the statute tending that way VVherby it seemeth that no part of the statute toucheth these that are born in VVales or Scotlād And albeit at this time and before in the reigne of Edward the first VVales was fully reduced annexed vnited to the proper Dominion of England yet was it before subiected to the Croune and King of England as to the Lorde and Seigniour VVherefore if this statute had bene made before the time of the said Edward the first it semeth that it could not haue bene stretched to VVales no more then it can now to Scotland I doe not therefore a litle meruaile that euer these men for pure shame could finde in their hartes so childishly to wrangle vpon this word Infants and so openly to detort depraue and corrupt the common law and the Actes of Parlament And thus may you see gentle Reader that nothing can be gathered either out of the saide supposed generall 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 my said soueraign Lady Mary now Queene of Scotland of and to the Croune of the Realme of England as is aforesaid VVe are therefore now last of all to consider whether there be any statute or acte of Parlament that doth seeme either to take away or preiudice the title of the said Queene And bycause touching the foresaid mentioned statute of the 25. yere of King Edward the thirde being onely a declaration of the common lawe we haue already sufficiently answered we will passe it ouer and consider vpon the statute of 28 and 35. of King Henrye the eight being the onely shoteanker of all the Aduersaries whether there be any matter therein conteined or depending vpon the same that can by any meanes destroye or hurt the title of the said
Queene of Scotland to the succession of the Croune of England The obiections of the aduersaries touching the pretensed vvill of King Henry the eight are clearlie auoided The statutes of King H. 8. touching the succession of the Croune 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 assigne the succession of the Croune by his Letters Patentes or by his last VVill 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 that Realme of England 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 sonne of his body betwene him and the Ladie Iane then his wife begotten for default of such issue then vnto the Lady Marie his daughter and to the heires of her body lawfully begotten for defaut of such issue then vnto the Ladie Elizabeth his daughter and to the heires of her body laufully begotten for defaut of such issue vnto suche person or persones in remainder or reuersion as should please the said king Henry the eight and according to such estate and after such manner order and condition as should be expressed declared named and limited in his Letters Patentes or by his last VVill in writing signed with his owne hande By vertue of which said Acte of Parlament the Aduersaries doo alleage that the said late King Henry the eight afterward by his last VVill in writing signed with his owne hand did ordeine and appoint that if it happen the said Prince Edward Ladie Marie and Ladie Elizabethe to dye without issue of their bodies lawfully begotten then the Croune of that Realme of England should goe and remaine vnto the heires of the bodie of the Ladie Francis his Neece and the eldest daughter of the French Queene And for the defaulte of suche issue to the heires of the body of the Ladie Eleonour his Neece second daughter to the French Queene lawfully begotten And if it happened the sayd Ladie Eleonour to dye without issue of her body lawfully begotten to remaine and come to the nexte rightfull heires VVherevpon the aduersaries do inferre that the succession of the Croune ought to go to the chyldren of the said Ladie Francis and to their heyres according to the sayd supposed will of the said king Henry the eight and not vnto Ladie Marie Queene of Scotlande that nowe is To this it is An ansvver to the foresaid statute on the behalf of my said soueraign Lady Marie Queene of Scotland among other things answered that King Henry the eight neuer signed the pretensed will with his own hand and that therfore the said will can not be any whit preiudicial to the said Queene The effect of the aduersaries arguments for the exclusion of the Queene of Scotlād by a pretēsed vvil of King H. 8. 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 own hande or at the least wise enterlined and some for the most part written with his owne hande out of the whiche it is likely that the original will commonly called King Henry the eightes will was taken fayer drawen out Then that there be great and vehement presumptions that for the fatherly loue that he bare to the common wealth and for the auoiding of the vncerteintie of the succession he well liked vpon and accepted the authoritie geuen him by Parlament and signed with his owne hande the said originall will whiche had the said limitation and assignation of the Croune And these presumptiōs are the more enforced for that he had no cause why he should beare any affectiō either to the said Queene of Scotlād or to the Lady Leneux and hauing withal no cause to be greeued or offended with his sisters the Frenche Queenes children but to put the matter quite out of all ambiguitie and doubte it appeareth they say that there were eleuen witnesses purposely called by the King who were present at the signing of the said VVill and subscribed their names to the same Yea that the chief Lordes of the Counsaile were made and appointed executours of the said VVill and that they and other had greate Legacies geuen them in the said VVill which were paid and other thinges comprised in the VVill accomplished accordingly There passed also purchases and Letters Patentes betwene King Edward and the executors of the said VVill and others for the execution and performāce of the same Finally the said Testament was recorded in the Chancerie VVherefore they affirme that there ought no manner of doubt moue any man to the contrarie and that either we must graunt this VVill to be signed with his hand or that he made no VVill at all bothe must be graunted or both denied If any will deny it in case he be one of the witnesses he shall impugne his own testimonie if he be one of the executours he shall ouerthrow the foundation of all his doinges in procuring the said will to be inrolled set forth vnder the great Seale And so by their dublenes they shall make them selues no mete witnesses Nowe a man can not lightly imagine how any other bysids these two kind of witnesses for some of them and of the executors were suche as were continually wayting vpon the kinges person may impugne this will and proue that the king did not signe the same But if any such impugne the will it would be considered how many they are and what they are it wil be very harde to proue negatiuam facti But it is euidēte say they that there was neuer any such lawful proofe against the said will producted For if it had ben it would haue bene published in the Starrechamber preached at Poules Crosse declared by Acte of Parlamēt proclamed in euerie quarter of the Realm Yea admitting say they that it were proued that the said pretensed will lacked the kinges hande yet neuerthelesse say they the very copies we haue spoken of being written 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 asserteined whiche is sufficiently done in the said will and seing his owne hande was required but onely for eschewing euil 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 accomplished this gratiouse Acte that was loked for at his hādes whether he signed the wil with is owne hāde 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
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
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
their clame being the will of such a Prince of so late and fresh memorie made neither the original nor yet any good and woorthy Recorde sufficiently authorised remaine of the same by what colour will they exclude the saide Queene They must clame either by proximitie of blood or by Charter For the first nature hath excluded theÌ„ Charter thei haue none to shew They wil perchaunce crie out coÌ„plain 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 perchaunce if it were in a priuate mans case It were somewhat if their demaund did not destroy the common law and the lawe of nature also It were somewhat if their supposed Charter were perished or by any fraudulent meanes intercepted by the said Queene Vpon whome in this point it is not possible to fasten any the very least sinister suspicion It were somewhat if they did not aspire to take gaine and lucre or if the Queene sought not to auoide dammage For dammage it is when any person is spoiled of any right due to him by lawe and reason And there is a great oddes in the consideration of the lawe and reason betwene aduancing our gaine gaine wee do that that doth grow accrew vnto vs by more gifte or legacie as doth the Croune Non est parâ—â—â—io luâ—ra non capere damna sentire L. fin Câ—de odiâ—il I. Prâ—â—uiâ—â— ff de daÌ„no inject Inst de legat Si reâ— to these competitours and Heires of the Lady Francis and eschewing dammage and losse And losse the lawe accompteth to be wheÌ„ we are defeated of our Auncestours inheritance So that both being put in the indifferent balance of reason lawe conscieÌ„ce the dammage shall ouerweigh the mere lucre gaine Yea I wil say more that in case either the sayed Queene of Scotlande or any other were in possession of the Croune hauing no right to the same yet if the issue of the Lady Francis had no further nor better right than these pretended writings the defendants cleauing to the only possession were false and sure and were not bound to shew to them their Title For it is a rule of the lawe Liqui accusare C. de edendo Accommodumâ—inst de indict that if the Plaintife faile in his prooffe the Defendant shal be discharged yea though he haue no better right than bare and naked possessioÌ„ Neither could they any thing be releeued though the pretensed Recorde of the ChaÌ„cerie were yet extant not for such cause only as we haue specified but for diuers other For it may well be doubted though the said Recorde might beare a sufficient credit among the subiectes of that Realme whether it may beare the same against one that is no subiect L. si quis in aliquo documento C. de edendo Againe it is a rule that the publike Instrument making mention of an other doth nothing proue against the partie in respecte of any thing so mentioned vnlesse the original it selfe be produced If therfore these competitours haue lost their instruments and Euidences where vpon they must of necessitie build their demaund and Clame to the exclusion of an other notorious right and Title they must beare the discommoditie therof that sought thereby their lucratiue aduancement and commoditie and not the person that demaundeth nothing els but that to him lawfully and orderly is due Yea they and wee to haue good cause to think that this thing in case any suche will were is wonderfully wrought by Gods permission and prouidence For it is almost incredible to heare and beleeue such kinde of writtings and in so great weightie a matter as this pretensed will coÌ„priseth to be so sone extinguished and perished as it were for special purpose to preserue to that noble Realm the true and sincere succession of the next royal blood VVhich if it should by certaine I can not tel what interlined papers scrolles be deriued and transferred to any other wrongfull heires it woulde be a wonderfull and strange thing to the worlde to heare and too importable to that nation of England and their posteritie to beare it It will then be so farre of that that thing whiche the Parlament most regarded in this Commission shal by this pretensed will be procured and purchased to that Realm as to haue a certaine knowen vndoubted lawfull Gouernour and King to haue striffe contention diuisions for the Croune cut awaye that euen the very thing that the Parlament most feared is most vnfortunately most lamentably like soonest to chaunce He that remeÌ„breth the tragical procedings of the last by name and not by right King Richard needeth not greatly to doubt but that as he could finde in his hart to bastard his eldest brother and lawfull king and to defame his own natural mother as an harlot euen so now there will some be found that wil easely be enduced for aduancing setting forth of their supposed right and Title to the Croune to seeke meanes to wring them out that shal iustly sit in the royal Throne to seeke to extort the Croune from their possession VVhich vnhappy day if it should once chaunce as God forbid then may the English nation cri out and sing a woful doleful song then may the not without cause loke for the botomelesse Ocean sea of infinite troubles miseries and mischieffes to ouerwhelme that Realme The whiche my mind and harte abhorreth to thinke vpon and my penne in my hand trembleth to write thereof Finis AN EXHORTATION TO THE ENGLISH AND SCOTTISHE NATIONS THAT AFTER SO LONG warres they wolde now at last agree and Ioyne together in one true league of fast frendshippe and amitie IF VVE VVELL REMEMBER the manifold hurtes and olde calamities of this our Ylande Britaine we shall finde that nothing therein hathe brought foorthe more harmes than hathe discorde And on the other side all auncient histories testifie that by concorde Cities haue bene builded many warres extincte and most inuiolable frendeshippes establyshed For suche is the force of Concorde as all thinges in the worlde therby doe as it were ioyne handes to gether with loue and lykinge amonge them selues Concorde dyd associate mankynd togither whiche before were dispersed and scattered So dyd she teache them to vse fidelitie one to an other and to lyue vnder a forme of policie and Gouernement In like manner Concorde keepith in a league of loue and amitie all nations as Frensh Spanishe Duche and the rest appointing to euerye one according to the diuersities of matter and place a seuerall Prince to maynteane amonge them one forme of a publicke weale and to Gouerne the same in peace and tranquillitie Therfore that wyse man Lycurgus being demaunded of his countriemen the Lacedemonians by what meanes they myght expell the violent inuasions and inrodes of their enemies aunswered very discreetlie if you wil lyue said he in amitie among your selues
forrein and Barbarous nation the Englysh Saxons And the lett of that Mariage proceded of the Englyshe whose vse is to seek to wynne that of the Scottes by manacing wordes and force of armes whiche they should desyre by fayr meanes termes of freendlye good will And there wanteth not occasion to suspecte that they dyd it of purpose to the end that by breakyng of that mariage some of them might haue a more reddye accesse to the vsurpation of the Croune of England How soeuer it was the Scottysh Nation was not mynded to yeeld by force and yet scarse able to forbeare were constreyned to craue ayde of the Frenshe whiche they could not obteyne onlesse they sent theyr Queene into Fraunce as an hostage for their fidelitie But there was nothing that the Scottish nation more estemed and desyred at that day than the vnion of those two regions by that mariage as may well be proued by the common opinion and sayeing of the people there before the matter was attempted by way of force and armes vve vnderstand the English mans language sayd the people they oures vve inhabit all one Yland and almost in nothing doe vvee differre but that vvee are gouerned by tvvo seuerall Princes And in dede it is euidently knowne that the Scottishe Nation many yeres before dyd greatlye desyre and wyshe this manner of coniunction in amitye and namely at suche tyme as they maried the noble Lady Margaret the only heire of the croune of Scotlād daughter of Alexander their King to the fyrst Kyng Edward of England By whiche maryage those two kyngdomes had bene vnited had not that noble virgin deceassed before she came to the fyght of her husband Seing then the case thus standeth there is no cause whye eyther the Englysh or Scottishe should vpbraide or reproue one an other but they ought rather to agree all together in one voyce and consent that yf there were none alyue to whome the Soueraigntie of the whole Yland by right could belonged one generall Prince ouer all might be elected by voyce or lott So as at last the whole weale publicque and people might enioye perpetuall peace and be no more with partiall parttakinge sectes factions disturbed Euen as wee rede that the Persians in olde tyme verie prouidently in a like case vsed them selues For as Iustine reporteth when they had slayne their Mages great was their glorie and renowme for the recouerye of their Kyngdome but muche greater for that in contendyng about the gouernement they coulde agree among them selues There was among them many equall in vertue and nobilitie as it was hard for the people to make an election of a gouernour Therfore theyr nobility deuised among them selues an indifferent mean whereby to cōmit the iudgement of their woorthinesse to their goddes They agreed among them selues on a day appointed to lead all theyr horses before the Palace earlye in the mornyng and that he whose horse fyrst dyd neyghe before the rising of the sunne should be kyng The next day after when all were assembled at the houre appointed the horse of Darius sonne of Hydaspes dyd first neygh and gaue that happy signe of good fortune to his maister Immediatlye the modestye of all the rest was suche as vpon the first heearing of the good notice so gyuen they all leapt from their horses and dyd theyr homage to Darius as to their King and all the commons foloweing the iugement of the nobles willyngly confirmed the election accepted hym for theyr Soueraign Thus the kyngdome of Persians wherof at one time there was seuen noble competitors was in a moment reduced to the regiment of one And this they dyd withe suche incredible zeale and pietie towardes theyr Countrye as for the delyuerey therof from trouble and miserye they could haue bene content euery one to haue lost his lyfe Thus farre Iustin Immortall is the honour and renoume of those noble men whiche willinglie preferred the wellfare of their countrey before their priuate ambition But allmightie God hathe eased you well of this doubt For he hathe Layd it open before your eyes what persone it is to whome the Soueraigntie of the whole Yland euen by the lawes of the realm after the decease of the now Queene of England without laufull issue of her body ought to descend and come I mean the most noble Ladye Marye the woorthie Quene of Scotland whose apparēt pietie and vnuincible constancie in aduersitie vniuersally well knowne and talked of through the whole world doeth gyue a plain demonstration how vain and friuolous the Iudgment of those men is which represse and reiect the Regiment of women To this Ladye therfore may the regiment of the whole Yland at length descend according as it was once before to her adiuged by the sentence of her great graundfather Kyng Henry the seauenth and of his Counseill as Polydor reporteth Kyng Iames of Scotland the third saieth he dyd honorably intertein Richard Fox Byshop of durisme Ambassadour sent to him by Kyng Henry the seuēth and at their fyrst meting he showed hym selfe muche greued for the late slaughter of his subiectes but easilie he remitted the iniurie Afterward when they were together alone the Kyng tolde hym how auncient and iust causes of frendshipp had bene betweene Kyng Henry and hym and how greatly he desired the assurance therof that they two myght be tyed together in a more fast knot of loue and amitie whiche out of doubt will folow sayd the Kyng yf King Henry wolde bestow on hym his eldest daughter the Ladye Margaret in Mariage To this the Amhassadour answered coldlie but yet promised his helpe and furtherance and put the Kyng in good hope of the matter if he wold send an Ambassadour directly to that end The Ambassadour vpon hys returne home reported to Kyng Henry the whole matter whiche pleased Kyng Henrye wonderous well as one whiche delyted muche in peace VVithin fewe dayes after this the Ambassadours of Kynge Iames came to request the Ladye Margaret in Mariage Kyng Henrye after audience referred the matter to his Counseil among whome some there were whiche suppected that the kingdome might in processe of tyme be deuolued to the same Ladye Margaret and therfore thought it not good to marie her to a forain Prince whereunto the Kyng made answere and sayd what then Yf any suche thing happen whiche God forbid yet I see our kyngdome should take no harme therby for England should not be added to Scotland but Scotland vnto England as to the farre most noble head of the whole Yland for we see it so fallen owt in all thinges that the lesse is for honour sake euer adioyned to that whiche is farre greater as Normandie in time past came to be vnder the dominion and power of the Kynges of England our auncestors The Kynges Iudgement was greatly commended the whole Counseil approued the matter with a full consent and the sayd Ladye and virgin Margaret was maried to Kyng Iames. Thus