the same spoken of To conclude therefore I will now coÌ„tent my self with warning euery one to mark and consider the meanes which such alwaies as haue gotten the vpper hand of a Lordship whereto they had no other right but habilitie haue houlden and then I hope they will thincke that the gouernment of a naturall Prince is gracious louing and fauourable in respect of y e mistrustfull suspicious and tyrannous straunger vnto whom not onely the deedes and wordes but also the gesture behauiour yea the goodes and welth of his Citizens are suspected because he feareth his owne shadowe Remember the auncient Fable of the Pigeons who when they had elected the Ringdoue to rule them were soone wearie of her courteous and gentle gouernment which they termed soft and delicate and in her roume chose the Kite who in liew of wel entreating of theÌ„ did eate beate and dayly teare some one among them in sunder with her beake and wings whereat these miserable fooles being offended could haue bene coÌ„tent to haue returned vnder the yoke of their first election but the Kites tyrannie could neuer brooke it whose successors do yet to this day practize their roine vpon them Once it fell out that the Frenchmen through wicked counsaile in liew and place of their naturall Prince whom they bare somewhat heauy were suborned to elect one Giles a Romaine of whom they were soone wearie after they had casted what it was to liue vnder one whose humour and birth did not agree with his subiects and it fell our well for them that their King was of power sufficient to resume them againe into his protection The ende of the third part ⧠THE CONTENTS OF THE FOVRTH part of this Booke 1 The authorities of Doctors for the preferment of the Neuewe before the Vnckle 2 Examples of the preferment of the Neuewe before the Vnckle 3 Reasons in law for the Neuew against the Vnkle The Neuewe succeedeth in the eldership of his father in proper person as being substituted to his late father 4 The right of eldership is transmissible perfect wanting but execution 5 The right of eldership is legall or custumary 6 The Lord Cardinall of Bourbons acknowledgemeÌ„t in the fauour of his neuew the K. of Nauarres mariage 7 Answere to the examples of the Vnckle alleadged against the neuewe 8 Answer to the Vnkles reasons against the neuewe Substitutions and continuatioÌ„ froÌ„ the father to the sonne in collaterall ligne by Iustinian 9 Successiou once roored in a ligne neuer departeth the same vntill it be finished or worne out 10 The order of Tutorship and the succession of free borne Libertines is vnlike 11 The Kings youth neuer debarreth theÌ„ from the Crowne The opening of the saying that personall right is not transmissible 12 Successions made by ciuill lawe and custome confessing the right of eldership are farre vnlike THE FOVRTH PART OF the Cath. Apologie IN the fourth Obiection the King of Nauarres aduersaries doe oppose against him the Lord Cardinall of Bourbon his Vncle as neerer by one degrée and nowe by the decease of the late Anthonie of Bourbon Father to the sayd Lorde King of Nauarre the eldest of the house of Bourbon 1 This question is one of the most tossed of all others and can not be decided by the arrestes of the Salicke Lawe that wee haue in these words De terra verò Salica in mulierem nulla portio haereditatis transit sed hoc virilis sexus acquirit hoc est filij in ipsa haereditate succedunt sed vbi inter nepotes pronepotes post longum tempus de Allode terrae contentio suscitatur non per stirpes sed per capita diuidantur But the decision hereof we must séeke in the Commentaries of our Doctors which Accurtius Odofrede Pope Innocent the fourth Durand Ric. de Malumbris Iohn Andrew Alberick de Rosatis Barth Balde Paule de Casiro Angel Aret. Martin de Lande Iohn Faber Pet. de Ancar Barbat Felin Ausrerius Wil. Benedict Cassanee Lewes Bolognine Matth. de Afflictis Andreas Sicul. Abbas Panormitanus Bartholomeus Sosinus Iason Alciatus Tiraquel Lewes Charond Choppinus and many other haue concluded in fauour of the Neuewe against the Vncle who termeth himselfe eldest by his brothers decease either indirect or collaterall lyne in successions indeuided as Realmes Empires Duchies CouÌ„ties and Marquisates Yea Decius imitating Socinus doth write that amoÌ„g the Interpreters of Ciuill Canon law hi qui pondere numero mensura praeualent haue alwayes consulted and determined against the Vnkle so that by the authoritie of so many skilfull persons the sayd Lorde King of Nauarre hath the better cause of the Cardinall his Vnkle Secondly the foreiudgements must be alledged for the decision of this controuersie Balde hoâ—ldeth that euermore it hath so bene obserued and decided in all contradictorie iudgements of France and England And Paul maketh mention of the Spanish law in this respect solemnly sworne vnto by the states of the same lande in deede we reade goodly examples both of these and many others 2 First in France for the same house of Bourbon in the time of Lewes the Fat king of France about the yeere 1110. Hanno had expulsed his Neuewe Arcembault a young child sonne to his elder brother pretending that the Lordship perteined to him as being entred into the Lawe of the eldership by the decease of his elder brother But the French Nobility forced the vnkle to giue place to the Neuew whom they substituted in the roume and place of his brother reseruing to Hanno onely some portion of the goods as to one of the Children of the same house An other example we haue in the posteritie of Henry the second K. of England who had three sonnes Richard Cordelion Secondly Geffrey who had maried Constance the Heyre of Brittaine and dyed in his Fathers time leauing his Wife great of Arthure afterward Duke of Britaine and Iohn surnamed without land Soone after the fathers death dyed Richard also without issue whereupon Phil. Augustus King of Fraunce who raigned about the yere 1141. adiudged the Dutchy of Normandy with other the Landes that the said Richard held in Fraunce vnto Arthure sonne to Gâ—ffrey his elder brother but afterward the sayde Iohn made peace with Augustus through the mariage of his sonne Lewes vnto Blanch. Neece to the sayd Iohn by his Sister wife to the King of Castile togither with some Lands that the saide Iohn habandoned to the sayd Phillip So that Arthure still prosecuting his right was slaine by his vnkle Iohn wherevpon the King of Fraunce tooke occasion for that fellony to confiscate all those landes as hauing alwayes fauoured and aucthorised the cause of the sayd Arthur The third iudgement passed in the tyme of Charles the Fayre King of Fraunce about the yeere 1331. for the Earle of Flaunders for Lewes of Neuers was by the Peeres of the Realme declared Earle of Flaunders and preferred before his
viscerum patris primo geniti excludet secundò genitum The fifth consideration is taken ab exemplo patroni qui vni ex liberis assignauit libertum to whom and to his he is due illis extantibus alteri non est locus So then the law custome and publick ordenāce hauing called the eldest and to him assigned y t right of the Realm it cānot belōg to any other but him or his being sufficiēt so long as they shall remaine in the worlde to take vp that succession which the right of eldership hath giuen him The sixt reason shall be that the same lawes and customes that are obserued in siefes and vasselag are considerable in Realmes and 〈◊〉 ruling And it is certaine that in beneficio quod feudum appellant nepos ex filio solus succedit and in default of him onely the Vnckle is called to the sayde succession notwithstanding our writer dare falsly mainteyne the contrary and alleadge the textes that make ad literā as they terme it against him Why then should wee not say as much of the Realme and Crowne which is the rule and gouernment of the said stefes Finally without doubt the right of eldership is a qualitie that passeth to euery of the children from the first to the second from the second to the third and so consequently as doe the heades of succession ordeyned by the pretors edict de liberis ad agnatos de his ad cognatos at verò certum est successionem quae fit de gradu in gradum potiorem esse illa quae fieri solet de capite in caput so as post omnes liberorum gradus vocantur agnati post vniuersos agnatos cognati Thus are the first borne the first head whose degrees are to bee considered in their issue The other head is of the second borne whose degrees are to be obserued in his children c. 6 Yet is there in this cause one especiall reason for the sayde Lorde King of Nauarre which cannot bee aunswered that is that his sayd Vnckle the Lorde Cardinall of Bourbon at the mariage of his neuewe the King of Nauarre to Lady Margaret of Fraunce acquited demissed yeelded and transferred to the sayd Lord King all and euery the rightes tles voyces and actions present to come that any waye might to him apperteyne as comming of the house of Bourbon expressely acknowledging his sayde neuewe the Lorde King of Nauarre for the true sonne heire successor and in all and by all representer of the senioritie of the sayde house To thincke therefore now to goe against the sayd renunciation made vnder a vaine hope of successiō in this Realme comprized vnder this general eldership of his late brother the Lord King of Nauarre there is no apparance sith spes fidei commissi conditionis in certum remitti poterit yea that iusiurandum reuunciationi interpositum tale est vt obseruari possit sine salutis aeternae dispendio also that by the Cannon lawes a renunciation cōfirmed with an oath can not be broken Besides that the renunciation was a part of the donation in the cōtract of Matrimonie whereby the mariage of the sayd Lord King of Nauarre to the sayd Lady of Frāce was more easily accomplished and by the restoring of the same the childrē of the said Matrimony might be endamaged which may not be permitted especially because the sayd Lorde Cardinall can alleadge no likelihood of hurt through his minoritie force or other causes of restitution against the sayde Lorde King of Nauarre his neuewe who at that tyme was yong and vnder the sayd Lord Cardinalles authoritie On the other side the learned do for the said Lord Cardinall bring in the example of Siluius King of the Latins who was preferred before Iulus his elder brother Ascanius sonne but in this matter the argument is not alike for Ascanius dyed not in his father Aeneas tyme but had worne the Crowne 38. yeeres or there about after his decease and when hee dyed the succession thereof was restored to Siluius to whom it rightly did apperteyne as being the true enheritance of his mother Lauinia For it is euident that Aeneas after the destruction of Troy landed in Italy with his sonne Ascanius and so well ordered his affayres that hee married Lauinia daughter to Latinus King of Alba Longa whom hee afterwarde succeeded of that mariage begat Siluius so that Ascanius raigne ouer the Latins in Italy was by tyrannie and without any vailable or more apparant title then the sworde for the Realme belonged to Siluius in the right of his mother Lauinia Secondly they alleadge a iudgement of the Senat of Sparta betweene Agesilaus and his nenewe Leotichides sonne to his elder brother Agis whereby the Vnckle was preferred and the Diadē royall to him adiudged But herein I would also desire thē to haue recourse to y ◠reason that Pausanias yeeldeth for y ◠saide iudgement which was because he was by his father Agis denounced a bastard whom in such cases the Ephores commonly beleeued as appeareth by a fore iudgement long before by them giuen in the person of Demaratus who was driuen out of the Realme which hee did enioye because of the like speech vsed by his father Ariston in his place as vnsufficient was substituted his Cossen Leotichides Their third example hath yet lesse apparence and is of Gontran King of Orleans of the sonnes of Clotaire the first who was preferred before Childebert sonne to his brother Sigisbert King of Metz in the succession of Cherebert King of Paris for they saye not that it was by force either that the Realme of the sayd Cherebert was deuided euen in the life tyme of the sayd Sigisbert father to the sayd Childebert among all his brethren and yet that afterwarde the weapons of the sayde Gontran were the stronger whē Fredegond had procured the death of Sigisbert which soone after Gontran repented and hauing no children adopted his neuewe Childebert who in the ende enioyed all his possessions The fourth is of Honoricus sonne to Gisericus King of the Wandales who was preferred before Gondabundus sonne to Genson the said Gizericus eldest but to this purpose they should withall haue set downe the words of the sayde Gesericus the fathers last will and testamēt importing as saith Procopius that he would haue the eldest of his children to succeede him which peraduenture he had learned of the auncient Nomades among whō sayth Strabo the prerogatiue of yeres was relligiously obserued in consideration whereof sentence passed for Corbis the eldest against Orsna his Cossen and sonne to the last King whose controuersie was decided by a Combat But in France we regard not the age but onely the order of senioritie wherein the neuewe continueth by substitution of him in the roume and place of his father the prerogatiue of the sonne The like was obserued in Barnarde sonne to Pepin Charles the Great
and Tritehemius after his father Bishop of Metz but he had before married Mary daughter to King Clotaire the 2. after some but as others say Almabert daughter to Carloman Duke of Brabant of whom hee begat a sonne named Martin who was Mayre of the Pallace of Thierry King of Austrasy with Pepin sonne of Ansegisus and Paule Emilie calleth this Martin Cossen to Pepin the Fat and Blondus nameth him his brother This Martin left a sonne called Childebrand and a daughter wife to Charles Martell saith Paule Emile whervpon other writers doe terme this Childebrand brother to Charles Martell and Vnckle to his Children in respect of the alliance that was betweene them Nicholas Giles calleth Childebrād Vnkle to Charles Martell Richard of Wassembourg nameth him Lambert he left a sonne called Theodorie or Theodowald who florished vnder Charlemaigne and being in his youth in the battaile of Ronceuaulx was made gouernor of Saxony about the yeere 780. and thereof was termed the Saxon he also led parte of Charles Armie against the Huns about the yeere 791. Paule Emile and others doe call him Charles Cossen which cannot be but by the sayd Childebrand In an other place the sayde Paule sayth that this Theodorick had the precedēce because he was a Prince of the bloud before Geilo Constable of Fraunce Thierry maried y e daughter of Witichindus a Prince of Saxony who a little before was Baptized this mariage was made to y e end by the alliance of the bloud Royall the Saxon might bee kept in duetie and amitie with the Estate of Fraunce after the example of Charles the Bould toward Godfrey Duke of the Normans whom hee caused to marrie Giles daughter to his neuew King Lothair and as Charles the Simple deit with Rollo the Norman Of this marriage of Thierry with the daughter of Witichindus discended Robert In respect whereof the Abbot of Vspergue speaking of Odo the first Capet that was crowned King of France sayth that his father was called Robert and his Grandfather Witichindus This man was Marquize of Aquitaine against the Normans who slew him and Ranulph Duke of Guyente in the tyme of Charles the Bould Whereby wee may learne that y ◠Princes of this house were termed Saxons either in respect of the gouernment of Theodorick in Saxony either els because of the alliance entered with Witichindus the Saxon whereof our deceiuers being ignorant tooke occasion to thincke the Capets originary Saxons straūgers notwithstanding in troth they were very Princes of the bloud royall of France Earles and Marquizes of Anieow in which Prouince the Annales of the Countrey do testifie that Thierry father to the sayde Robert deceased at the age of 80. yeeres or more and his sayd sonne Robert after him after whose decease the Countie of Anieow was committed to to the custody of one Hugh an Abbot during the minoritie of Odo Robert and Thierry sonnes to the sayde Robert to whom it was rendered after the decease of Hugh whome some doe make brother to the first Robert Thierry one of Roberts children was Earle of Bourgondie had a sonne called Richard Duke of Bourgondy who begat Raoul who with the help of his Cossen Hugh the Great was vppon the resignation of Charles the Simple proclaymed King of Fraunce and was the third Capet that before Hugh bare the name and title of King of this Crowne which still fell out by the nomination and cōmon agreemēt and consent of the Nobilitie which is a most sufficient testimonie to proue that the Capets were vndoubtedly Princes of the bloud sith the Frenchmen so sore enemies to forraine gouernmēt had euen at once respect to those mē and so often had recourse to their armes as to their naturall Princes Richard likewise begat Gisilbert Duke of Bourgondie who had one onely daughter that was wife to Ottho brother to Hugh Capet to whome shee brought the Dutchie of Bourgondie Odo second sonne of Robert and Earle of Paris was tutor to Charles the Simple and afterwarde beeing proclaymed King of France dyed without issue Robert the third sonne was Constable of Frāce and admitted King after y e decease of his brother whereby hee grewe into great hatered with Charles the Simple and finally dyed about the yeere 922. leauing issue Hugh the Great Earle of Paris Duke Constable of Frāce as sayth Paule Emile This man in reuenge of his fathers death endeuoured as sayth the Abbot of Vspergue to make his Cossen Raoule Duke of Bourgondie King He maried Hauide daughter to the Emperour Henry and sister to Ottho the first of which mariage discended three sonnes Hugh Capet the first peaceable enioyer of the Realme of France of that famelie Ottho who by his wife was Duke of Bourgondie and Henry who also after his brother Ottho was Duke of the same land Thus may you see the progresse and true genealogie of our Kings discended of the said Capet wherby appeareth the falsehood of our sclaunderrs liedgerdemain who giue out that the Capets beeing straungers did vsurp the Crowne of the house of Charlemaigne whereof neuerthelesse I haue heretofore shewed you that it is 580. yeeres since that race was vtterly extinct so farre are the Princes of Lorraine from taking their originall thereof neither neede we beleeue the fable of adoption inuented by du Rozieres as false as blockheaded and doltish a Chronegrapher and Historigrapher a worse Lawyer For he should haue knowne that his pretended adoption made by some one of the Carlians of that name from whom he would bring the discent of the Lorraines could not take holde in the Realme of France which is successiue so long as any one Prince of the bloud liued Besides that at all assaies it had bene requisite euen in default of heires of the Crowne that this adoption with the notice of the cause had bene made by the general Estates of the Realme so to haue made the adopted capable of the succession as I could at large shewe him if there needed any confutatiō of those fables which they would suppose vnto vs in the vnderpropping of the pretences of straungers our enemies with a rotten poste but I will content my selfe with the representation of the genealogie of the Capets aforesayd wherby you see how they abuse vs. Wherfore let vs there leaue thē and among our natural Princes let vs put of all passion iudge what is right also what preeminence the one may haue ouer the other both by reason and ciuil discourse If it were to any purpose to lay open to the French the rules of establishment of a Tyrant straunger an vsurper of an Estate there is no man how greatly soeuer affected to the fellonie which good men doe finde to bee now conspired against the honor of the King and the Princes of the bloud Royal by these perturbers of the peace of this Crowne but would abhorre euen to heare
namely Godfrey of Buillon so called for y t he was nursed in the Castle of BuilloÌ„ which now y â— Bishop of Liege holdeth his brother Balduin But these remayning in the holy lande the kingdome whereof fell to them by the election made of the said Godfrey the Emperour Henry the fowerth in the yeere 1101. gaue the Dutchy of Lorrain to Henry Earle of Lembourg whome after hee had rebelled against him he had taken againe into fauour And in troth this Henry of Lembourg was a very bad man for besides infinit other his misdeedes we find that at the prouocation of the Pope theÌ„ being he moued warre betweene Henrie the fowerth and the fifth the father and the sonne The father gaue him the Dutchy yet he tooke the sonnes part and then retourned to the fathers side after whose death hee went and fell at the sonnes fâ—â—te who committed him to prison and in the yere 1106. inuested Godfrey by some named William Earle of Louaine in the Dutchy of Lorraine whose seruice while hee was at Liedge hee vsed in taking Mountfaucon a hould the Lorde whereof was very insolent Of this Earle of Louain sprunge that house of Lorraine which yet continueth for vnto him succeeded Thierry to Thierry Thibault after Thibault a certaine Matthewe was Duke and so successiuely vnto the sayde Lady Isabell wife to Rene of Aniew as is aforesayd So as it is an abuse and manifest deceit to search the race of Charlemaigne in the house of Lorraine sith it is 580. yeeres since it vanished and was quite lost euen after that fower sundry Famelies haue succeeded one after another in the sayd Dutchy of Lorrain One of the yongest of which house who was Graundfather to the Dukes of Guise and Maine now being drawing into France with very smal wealth receiued as also after him his Children so many benefites at the hands of the Kings Francis the first Henry the second and his posteritie that they haue through the liberalitie of their Maiesties encreased their Patrimonie to a Million of Frankes of Rent that they houlde in this Realme whereas their grandfather Claude when he maried Lady Antoynet Bourbon daughter to the Duke of Vendosme had not aboue 14. or 1500. besides they haue bene honored with the greatest offices of y e Crowne as the office of great Master which was woÌ„t to be in the house of Montmorencie and other of the most honorable So as it might be hard to thinke that nowe they would imitate the Moyle whose nature is to kicke and spurne at his Mother when hee hath sucked enough of her Milke either that they had so vnthaÌ„ckfull a minde as to take weapon against the Royall Famely whereunto they are indebted in whatsoeuer they are yea and that vnder a false perswasion that they should be disceÌ„ded from Charlemagne which is contrarie to all trueth 4 To verefie therefore that the Princes of Lorraine neuer came out of the house of Fraunce it will be sufficient to shewe that in the succession of the Dutchy of Lorraine they obserue not the Salicke lawe as it was iudged by the Fathers assembled at the Counsaile of Basill on the behalfe of Isabell of Lorrain wife to Rene of Anieow and daughter of Charles of Lorraine against her Cousen Antony of Lorraine the sonne of Ferry the yonger sonne of Charles Hereby it manifestly appeareth that thus they declare the Princes of Lorraine to bee no Frenchmen neither euer to haue bene of the bloud royall of Fraunce or capable of the Crowne for the which and in the soueraigne succession wherof the Salicke lawe hath of olde time euen since Pharamond bene religiously obserued and thereby not onely the daughters but the males of them proceeding haue bene excluded from the Realme of Fraunce according as the decree of the sayde lawe importeth in these words Of the Salicke landes the woman shall chalenge no portioÌ„ but the succession therof shall appertaine to the males The reason of this constitution is because our fathers did horribly detest the gouernment of strauÌ„gers which vndoubtedly must needes haue often happened if the males of daughters that were wiues to forraine Princes might haue bene capable as some would perswade y â— childreÌ„ of Lorraine y t they may pretende as wrongfully as did Edward of England whose cause was solembly ended by the whole states of FraÌ„ce for Philip of Vallois afterward King against the sayd Edward the sonne of Lady Isabell daughter of Phillip y e faire after that Prince Robert of Arthois had openly made an Oration to the Estates for the sayd Phillip and had among other alleadged the reason aforesayd the originall whereof he drewe from before the Emperour Iustinian and Paule Emilie speaking of the ioye and contentation that the French conceiued after this senteÌ„ce writeth thus King Phillip making his entrey into the chiefe Towne of his Realme was receiued with as great pleasure ioye and triumph of people as euer was King of Fraunce where was a world of people crying God saue the King The streates were paued with Flowers according to the seazon and adorned with the most triumphant Furniture that could at that tyme be found To bee briefe saith the Historie the people forgat no kinde of demonstration of their contentation for the comming of this King to the Crowne He saith moreouer y t the Towne feasted his Maiestie y e Princes of his bloud and Officers of his Crowne praysing publickly extolling him as the preseruer and defence of the French Maiestie and the libertie and dignitie of the Salicke law whereby the FrenchmeÌ„ who were accustomed to prescribe lawes to Straungers were neuer ruled by them Then he endeth his speech saying that the most part of the night was put away with the light of Bonfyers throughout y e Realme and the howers of sleepe consumed in daunsing singing and all sortes of honest and delectable mirth especially at Paris y â— townes men marched in great troupes to congratulate each other for the welcomming of this King whom they termed the Bulwarke and preseruer of the best of their lawes These good fathers were no basterdly French as are those of our cursed world and would haue kept themselues farre from informing much lesse from begging those meanes that might bee imagined for the breach of this goodly Salicke lawe which is the onely Oracle of France and true rampier of the French dignitie which also sith it is euident that the Princes of Lorrain haue not vsed it is an vndoubted demonstration that they are not discended of the race of our Princes who haue so highly commended it in their Empier and soueraigne gouernement 5 In deed our deceiuers since considering that this foundation was too rashly propounded and might breede hatred in the King against the Princes of Lorraine whome they would bring into this bad action because his Maiestie beeing iustly agrieued hath power enough and ready to chastize the Authors of
theÌ„ due together with that which was assessed vpon the heads of euery of his Apostles euermore referring the reward of his grace reuenge of trespasses against him committed vnto the kingdome of heauen enioining his Apostles to doe the like and to imitate his example as they haue done The Apostle Sainct Paule sayd Let no man that fighteth in the Lordes warfare trouble himselfe with the matters of this life Againe The minister of the Lorde ought to be louing to all men meet to teach paciently bearing with the wicked with modestie reprouing such as withstaÌ„d the trueth Briefly in one word to say all there be two kinds of Iurisdictions the one earthly coÌ„mitted into the hands of Kings and Princes to whome euery one of whatsoeuer degree or calling Spirituall or Temporall Priestes Bishops or high Priestes ought to obey as it is written Let euery soule bee subiect to the superiour powers vpon which place Chrisostome sayth the Apostle vsed this word euery to shew that there is no creature that may be exempt whether he be saith he Apostle Prophete Euangelist Priest Monk or other whosoeuer We also finde that in the Primetiue Church before pride Ambition tooke roote in the Bisshops hartes that the Popes of Rome neuer made any question thereof Wee haue also amoug vs a request exhibited by Boniface the first to Honorius Emperour of the West wherein hee beseecheth him to decree that afterwarde the Bishops and Popes of Rome might not bee chosen by fauour or any other vnlawfull meane whereto the same most Catholike Prince maketh an aunswere worthie such a request In the time of Odoacer King of the Herules who began to raigne at Rome in the yeere 471. and ruled full 14. yeres after hee had put to death Orestes and his Sonne Augustulus the last Emperour of the West vntill Charlemagne there were goodly decrees published and receiued in the Church by the Clergie vntill such tyme as Theodoricke the Wisigot whome Zeno the Emperour of the Eeast sent into Italy had ouerthrowen hym Pelagius the first made confession of his faith and sware in the hands of Ruffin the Embassadour of of Childebert King of France Pope Leo the fourth sware and protested that he would and did intend to obserue the Lawes which the Emperour Lothair the first sonne to Lewes the Meek and Neuew to Charlemagne made at Rome in the presence of Pope Eugenius the second whereof some are inserted into the Booke of Digestes the inscription whereof do import that the Emperour made them ante ianuas beati petri ad limina in atrio which was the place where the Christian Emperours were wont to make and publish their Edicts if we maye beleeue Cassiodore and others The said Emperour also created certaine Magistrates in the Towne to exercize the imperiall Iurisdiction The same Leo doth sufficiently declare what respect the high Priests of Rome did in those daies beare to the Emperours when he sued to the same Lothaire and his sonne Lewes the second to conferre the Church of Rheatine or Tusculum to one Colonus a Deacon assuring their Maiesties of his sufficiency and promising in the name of the sayde Colonus that he should praye to God for them This was the same Leo that pleaded his cause and purged himselfe of the treazon whereof hee was accused before the Emperour Lewes the seconde sonne to the sayd Lothaire as appeareth in the decree of Gratian. The like declaration did Pope Iohn the eight make to the same Emperour Lewes the second sonne to Lothaire By the decretall Epistle of Honorius the third who liued about the yeere 1216. it appeareth that as yet the remembraunce of the Emperours lawes was not vtterly abolished out of the Catholick Church and that the Priestes and high Priestes had not as yet wholy shaken of the yoke of y â— same no not in those that they terme Spirituall causes as if any question were moued of an oath in law for the decision of proces in which cace he reneweth the auncient edict of Martian and IustiniaÌ„ the first To coÌ„clude for the stopping of the mouthes of those that doe maintaine that the Pope Bishops or other of the Cleargie may establish any earthly Kingdome apart which shal not bee subiect to the Emperours and Kings of this world but rather such a one as may at pleasure commaunde and supplant the same let them dilligently search throughout the whole Scripture what authoritie the Kings and Princes of Israel had ouâ—r the Priestes and Cleargie in Gods lawe which since the tyme of grace is not deminished and there shall they euidently finde their great authoritie ouer them notwithstanding it was neuer lawfull for the Kings to execute the office of the Priestes for vndoubtedly the ministerie is one thing and the orders discipline of the Cleargie is an other and meerely temporall The other head of Iurisdiction is in heaueÌ„ which we are to looke for at the iudgement of GOD and yet not to perswade our selues that the lawe of Iesus Christ is lame or vnperfect because in it it conteineth not any punishment or earthly reuenge of trespasses against euill liuers considering that the same beeing heauenly and spirituall it will yeeld reward or punishment in the euerlasting world so that as sayd Alexander Seuerus of periury Whosoeuer offendeth against God hath God a sufficient reuenger our good God hath referred to himselfe all the punishment to the end the sinner may haue meanes to acknowledge his offence and repent the same in this world True it is that if y e earthly Magistrate hath in his pollicie taken any order for such causes then is it his office to reuenge the iniurie done to his edicts and decrees for so as saith Isidore The Kingdome of God encreaseth through the meanes of earthly Realmes to the ende such as be of the body of the Church if they offende or blaspheme may be punished by the rigor of Princes and so that discipline whereto the Church can not binde them may neuerthelesse bee preserued through the authoritie of Monarchies The like wherof haue bene vsed against heretickes by all Christian Princes especially in our France by an infinite number of lawes both olde and newe of our most Christian Kings And in troth if the Bishops or Priestes should take notice of the punishmeÌ„t of hereticks it would breede confusion of Iurisdictions and offices aswell might the Goldsmith be iudge of the golde that himselfe had wrought The Phisition of his owne cure to bee briefe euery one should pleade and decide his owne cause contrary to al reasonable order The example also of the Apostle Sainct Paule whome the Iewes accused of heresie doth sufficiently teach vs when by himself it appeareth that he was brought before Festus the Emperours Lieutenant vnto whom the accused did confesse that y â— notice of his cause did apperteine and therefore required
may exclude his Vnckle euen as his deceased father might haue done because in such successions there is place but for one Moreouer wee knowe that the obligations wherein the father stand charged to his sonne are in like force and vertue in the persons of his issue and therefore the Grandfather is bounde to endowe his niepce for her fathers sake so as the same right whereby the Daughter maye force her Grandfather to marrie her is in consideratioÌ„ of his sonne because saith Celsus the Grandfathers duetie to his niepce ariseth of his fatherly loue to his sonne and therby his children ought to haue the same that to him had apperteyned if he had liued in the world In an other place the Emperours Zeno and Iustinian haue decreed that at the decease of one of the children of the first bed the part that he should haue had in the giftes betweene his father and mother at their mariage cannot arise to his brethren but must by their willes apperteyne to his children if at his decease he left any during his fathers life Pomponius speaking of a Libertine who had promised his endeuour to two Patrons is of opinion that if the one dye the same dueties belong to his children notwithstanding the other do liue Which can not be but in respect of the Obligation wherein this boundman was bovnd to their father To be briefe I might be tedious in discoursing vppon infinite continuations and substitutions of Children in the roumes of their deceased Fathers Neither is to any purpose that aunswere of those of contrary opinion which alleadge that whatsoeuer wee haue sayd taketh place only where the father is of him self perfect and in his owne person doth certainly obteyne For I say moreouer that in cace there were no more but the onely and sometime vaine hope yet were it lawfull for the sonne to vse the same and to seeke out the effects that may come to hande as it appeareth in the father Haereditatem non aditam ad quam nullum adhuc habet ius quaesitum nec actionem ad liberos transmittit quinimò conditionale fidei commissum querelam in officiosi testamenti non praeparatam iudicium operarum non contestatum such like wherein doe very often consist the power and force of â—ature although the children be not heires to their father 4 The second reason is meere ciuil wherby we saye the right of eldership is borne and formed in the person of the Father at his first entry into the world Moses termeth it primogenita tua by a possessiue pronoune The Interpreter doe describe it Ius prioris aetatis honorificum vtile competens filio quia primus est in ordine nascendi So consequently he is of nature and therefore transmissible whereby also during the Fathers life the eldest sonne is called King Duke Earle c. of his fathers qualitie the hope of which senioritie he may sell giue dispose transferre and resigne to an other mans person as Esau did to Iacob especially because he hath notable interest therin as in this matter in respect of the natural affection he beareth to his sonne and the desire that nature hath planted in him to leaue his sonne substituted and successor in his roume besides that sith eldership is an excellent and notable dignitie death or any other mishap of the father cannot bee preiudiciall to the sonne who in this poinct is not considered as inheritour to his deceased father but onely in the qualitie of a sonne whereby all whatsoeuer his fathers rightes are to him obteyned and without difficultie reserued It is not therefore properly transmission whereby the sonne succeedeth in his fathers seniority but more truely it is termed continuation represematioÌ„ and naturall substitution in his owne person and therefore deuided from the fathers right and qualitie though extract out of the same whereof it oftentymes falleth out according to the doctrine of Barth Aret. Alex. and Iason that it can not perish by the death of the father first borne for commonly we say when a person is the onely cause of a priuiledge he loseth him selfe and vanisheth therein otherwise if he be brought forth of any qualitie seperate and diuers from the man although resident in him as in a free birth in which case it is transmissible and may be obteined to his successors in whose person he was resident Euen in this case our interpreters doe vpholde that the right of eldership because it is formed and wauteth no more but execution and full possession may iustly be compared Iuri accescendi Iuri deliberandi which are transmissible and doe extend to the heires 5 The third reason for the neuewe is that the right of eldership is a constitution and decree or rather a legal and customary institution established in the fauour and benefite of the first borne to whom by the same order are substituted the younger in case the elder dye before them Now it is certaine that the lawe is of like or greater authoritie then composition or contract betweene parties by which compact whatsoeuer is to vs meerely or conditionally due is transmissible and may bee obteined for the successors or heires of the obteyner so consequently although the right of eldership were not perfect or fully obteyned to the first borne as it is but had therein any modification or naturall condition yet should it together with all the qualities therof be obteyned and belong to the sonne of the elder to whom the lawe hath had regarde no lesse then they qui paciscuÌ„tur tam haeredibus quà m sibi ipsis cauent which is the reason of the difference wherby that which is to vs due conditionally by vertue of a later dispostion cannot belong to our heires before the conditioÌ„ accoÌ„plished because the deceased thought not to giue it to any other then him whom he named but contrariwise contractors doc couet to obteyne whatsoeuer their rightes to their substitutes after their decease Besides that this substitution by custome made of the yonger to their elder brothers cannot bee vnderstood but in case the elder dye without issue as we say out of Papinians opinion that the substitution of the father made vnto the sonne is ment if this should dye without issue The fourth is that although the sonne of the elder be a degree further of then his Vnckle yet beeing substituted in his fathers roume and place hee must bee preferred because the right of preferment is not obteined to vs onely but also by the right person of an other so that so long as any portion or rellique of this senioritie shall remaine no other caÌ„ take place by any meane whatsoeuer euen as wee doe mainteine that how small soeuer the tokeÌ„ of the former tutel be it is in respect of the sonne sufficient to hinder any other or diuers course of the same and so consequently the sonne qui est portio
eldest sonne before whom was preferred to the Empire Lewes the Mecke second sonne to the sayd Charles But this example may most easily be aunswered because it was the same Charles their common father that had deuided his Dominions among his children and had giuen Italy to Pepin his eldest sonne which also was reserued to the sayde Bernard his sonne and therefore after the pertition made by the sayd Charles he could pretend no further in y e succession that might come in question besides that at that time the Empire was not properly successiue for notwithstanding the neerest in bloud to the deceased Emperour did succeede yet durst hee not so intitle himselfe vntill by the consent of the Romaines he had bene publickly annoynted and crowned Much lesse also was the Imperiall dignitie successiue after the creation of the Princes electors of the same in the tyme of Ottho the 3. of the house of Saxony or by the opinion of the skilfullest of our worlde in the tyme of Fredericke the 2. so as there is no likelihoode to drawe an electiue Empire into consequence with hereditarie and patrimoniall Kingdomes The 5. indgement is of the Coūtie of Arthois which was in strife in the time of Philip the Faire King of France betweene Maude wife to Ottho Earle of Bourgondie daughter to Robert Earle of Arthois slaine at the battaile of Courtray and Robert the sonne of Phillip who likewise was sonne to the sayd deceased Earle Robert in which case the aforesayde Countie of Arthois was by the sayd French King adiudged to Maud who was preferred before her neuewe Robert being yet in infancie And in troth the historie setteth downe no other perticuler occasion of this iudgement but y t it was giuen by the mere motion of the sayd King Phillip Lord of the fief Neither is it sayd that his Maiestie tooke any other aduice but of his owne will the neede that then he had of Ottho the sayd Maudes husband together with the small seruice that of long time he might attend of the said Robert a yong childe and at that tyme there needed a good warrier to be opposed against the Flemings to the ende to suppresse their boldnesse and customary rebellions So as in respect of the sayd Roberts very youth the sayd King Phillip thought it meete to infringe the law and custome vsually obserued in like causes But God be praised in whatsoeuer may happen betweene the said Lords the King of Nauarre and his Vnkle the Cardinall of Bourbon we cannot incurre that daunger but rather were to be feared the great yeeres of the sayd Lord Cardinall already olde worne and by reason of his order estraunged from al vse of armes in respect of the flouring tyme of the King of Nauarre a Prince brought vp in the same and in gonernment of Estates The sixt is for the Countie of Champagne betweene Henry the seconde sonne of Earle Thibault the daughter of the sayd Earles eldest sonne wife to Erard of Breno in which case by arrest of the Court of Parliament of the Peeres of France in the yeere 1216. the sayde Countie was adiudged to Henry the Vnckle against his neuewe daughter to his elder brother But it may easely be answered the eldest sonne of the sayde Thibault going into the holy Land had expressely ordeyned that in case he dyed in the sayd expedition or otherwise without issue male then that his brother should succeede in the sayd Countie with endowing his daughter wife to the said Breno with a competēt summe The seuenth happened betweene the children of Charles the second King of Sicil sonne to the brother of King S. Lewes who married the heire of Hūgary and of that mariage begat Charles Martel and Robert The father gaue and appointed to the sayde Martell the Realme of Hungary and in his life tyme caused him to be thereof crowned whereby he did a while enioye it and then dyed leauing his sonne Charles to whom Charles the Grandfather confirmed the donation of the sayd Realme made to his father Martell and to his second sonne Robert he gaue the Realm of Naples So that by the truth of this historie it appeareth that this was a pertition by the saide Charles the second made betweene his children which they could not resist and whereof neither y e sayd Martel nor his sonne Charles had cause to complaine for the Realme of Hungary was farre greater more rich and wealthy then that of Naples which was already rent and dismembred by the Arragōs as it is euident by al histories of those times Our Interpretors doe yet more briefly aunswere this preferment of Robert the second before the sonne of Martel his elder brother aleadging that Pope Clement the 5. pretending authoritie ouer the Realme of Naples which hee aduowed to bee of the fiefe of the Church pronounced this sentence lightly enough therein doing the office of a partie rather then of a Iudge besides that of the sayd Realme in respect it was subiect to Sainct Peters chaire was not properly successiue The last example that they alleadge is of Lewes Sforce who was preferred to the Dutchie of Milan before the sonne of Iohn Galeas but thei might rather say that he preferred himselfe by force and through execrable tyrannie which the sayd Lewes exercised against this poore orphan vnder pretence of gouerning and defending him Besides it is so farre from being our case that it is certain that the young childe enioyed his fathers Estate when this Tyrant his Vnckle seazed thereon and put him to death as vniustly as in the ende God did iustly punish him in causing him to ende his daies in miserie and captiuitie Hauing thus aunswered such examples as they may alleadge let vs now consider whether the reasons that they propounde be sufficient to cause vs to alter our aduice 8 First in all Successions it is a generall rule to call thereto the neerest to hym whose state is in question so that it is by priuiledge and extraordinarie licence that we admit the the Children of the deceased brother to share with their vnkle in such goods onely as will baare deuision Which is the cause that our Doctor alleadgeth Butr. in his Tree of the succession of the Realme of Fraunce in these words Succssit ergo illi Carolo in regno Franc. Philippus filius alterius Caroli qui erat ei in 4. gradu nec successit Robertus pronepos Roberti Comitis Atrebatensis quendam quia ille erat in 8. gradu nec successit Robertus nepos Caroli Regis Siciliae Ierusalem quia ille erat in 7. gradu nec successit Ludouicus nepos Beati Ludouici quia ille erat dicto Carolo decedenti in quarto gradu Therefore sith otherwise the Vncle retaineth still the chiefe degree the especiall regard that Iustinian had to the posteritie of the deceased brother to make them equall with their Vncles can not serue them in vndeuided
and of Charles the first King of Sicil children to Lewes the 8. and brother to S. Lewes Likewise Lewes Duke of Bourbon could not bee admitted to make chalenge to the same Realme because hee was sonne to Robert of Fraunce the yonger sonne of the sayd S. Lewes whose succession was entred into the ligne of Phillip the 3. surnamed the Bould his eldest sonne of whom came two sonnes Phillip the Faire who was King by right of eldership and Charles Earle of Valois father to the sayd Phillip true successor to his Cossen Charles the Faire sonne of Philip the Faire who both were come of the braunch of the sayd Phillip the Bould eldest sonne to S. Lewes The like obseruation fell out after the decease of Charles the 8. King of France to whom succeeded Lewes the 12. sonne to Charles Duke of Orleans after him Frances the 1. sonne to Charles pettie sonne to Iohn Earle of Angolesme both discended of Lewes Duke of Orleans sonne to Charles the 5. surnamed the Wise whose comming to the Crowne procured his posteritie to be by right preferred before all other the Princes of Bourbon then being and those of Alencon borne in direct masculine ligne of Sir Charles of Fraunce youngest sonne to Charles of Valois and brother to Phillip of Valois King of France The second consideration is because by the lawe of the Realme the neerest must succeede to the Crowne but be must be proximior at y ◠tyme of deferring the inheritaunce and when the succession is open as si familiae fidei cōmissum debeatur hi ad petitionem admittuntur qui ex nomine defuncti fuerint eo tempore quo testator moreretur qui ex his primo gradu procreati sunt in which case hee is called prior whom none preceedeth because prius and posterius doe consist in the tyme that the qualitie say our Maisters in a conioyned worde must be expounded after the time of the word namely it wee should otherwise meane and would note eldership at the tyme of the birth there must ensue an euitable inconuenience which is that y ◠eldest dying the second should neuer take his rouine because he first included himself to the excluding of an other which in this argument is vtterly false wherein by the decease of the elder the second is without doubt made the first borne for in effect par est talem esse aut ex post facto talem fieri neither can this qualitie of senioritie beare any comparison betweene the elder deceased and the yonger suruiuing whereof it followeth that the dead being vnhable as not being in rerū natura his some must haue the like barre as succeeding in the person of his father Al these gay reasons might take place and were to be considered if the sonne of the elder non esset in medio neither were the discourse of the same any hinderance for by him and in him pater primogenitus censetur viuere tempore delatae successionis and in troth extante nepote inclusio primogeniti continet exclusionem secundi sith that filius fratris fratr◠aequiparatur ita succedit atque pater si viueret sayth Iustinian also this new constitution facta in casu vero extenditur ad alterum vero aequiparatum after the opinion of Paule de Castro in his explication of Sceuola vpon y ◠Counsaile of Gallus together with many other skilfull persons so that the father is not quite extinct while his sonne liueth though by a new soule he be a new man neither saith Papinian in totum falsum videri quod veritatis primordio adiuuaretur So that though the Vnckle cannot be termed yonger in respect of the elder deceased who neither in himselfe neither in any qualitie y t wee may suppose vnto him is any way to bee regarded yet when he shall beholde his neuewe the successor continuing and making a part of his late father he shall finde a faire argument and obiect of comparison of the others senioritie with his iunioritie First this principle is not alwaies true neither doth the habilitie or inhabilitie of the father perpetually take holde of the children As for example eius qui ante amissam patris dignitatē natus fuerit Againe de liberis illius liberti qui in seruitutem redactus sit To bee brief herein we may say as Alphons teacheth vs The father taketh not from the children those things that kinde Countrey and nature giueth them as is y ◠right of eldership which is truely set in the person of the father being eldest of the house but it is graunted to him and his by the lawe custome and common order of the Realme and therefore is transmissible to his children Moreouer the deduction made by those of the contrary opinion might be admitted si per filium patri incapaci quippiam quaerendum foret and not otherwise as we find illius exemplo qui ex haeredatus liberto patris succedere non potest eius tamen filius emancipatus non vetabitur And in one word the incapacitie or inhabilitie of the father might hurt the sonne afterward borne but not him that were begotten before to whom his fathers calamitie can be no detriment so that the right of eldership being perfect sound and to the father obteyned in his life tyme is continued and transferred to his posteritie The third reason is that the right which is not obteyned cannot in any whatsoeuer qualitie bee transported or transferred to any heire whatsoeuer and therefore wee doe vsually say that haereditas nō adita non transmittitur as doth not also the age which is inseparable from the person and which beeing in question we haue no more respect to the successor then to his predecessor now the right of eldership proceedeth of the yeres and precedent light of the deceased father who neuerthelesse did neuer obteyne the succession in his life tyme as not being open so it followeth that the sonne of the elder can pretēd nothing neither could the father obteyne to him the right of his yeres wherein the sonne were more to bee considered then the father deceased as Constantine writeth si minor minori successerit ex illis persona restitutionis tompus connumerari To this obiection the aunswer is easie because we haue already shewed that the right of eldership is perfectly obteined to the eldest so soone as he seeth y ◠light of the world and is made man and the § pro secundo which is alleadged to the cōtrary hath relation to that which presently is not obteyned neither in hope but may be altered by the onely changeable will euen vntill the death of him whose goods are in question Therfore in this matter wee argue not about the transmission or transferring of the life and yeres of the elder deceased into the person of his sonne but only of the right and preeminence that his senioritie hath brought