from her to the Queenes most excellent Maiestie allow and giue her assent to the same Neuerthelesse after the making of this acte and her sayde consent giuen therunto the monstrous conspiracie of Babington by her priuie consent and promise of rewarde for the murdering of her Maiesties sacred person and atcheiuing the crowne and diademe in full possession was practised and miraculously discouered Which I neede not heere particularly to deduce since there was a most honorable sentence giuen thereof by the most part and the most auncientest of the nobilitie since their proceedinges were declared to the whole body of the Realme assembled in Parliament of them receiued all allowance since both the houses often sued vnto her Maiesty that according to lawe iustice might be administred and since her highnesse at the great intreatie of her subiects suffered the sentence by Proclamation to be published it plainly appeareth that the intention of the lawe makers was that the lawe should reach vnto the Queene of Scots and to euerie other person whosoeuer being a Competitour of the kingdome Wherefore it is manifest that although this is statute law yet since it was the minde and intent of the makers that this lawe shoulde reache to the Queene of Scots that by offending she is made subiect vnto it Neither is the statute lawe heerein repugnant in substance to the lawe of Nations howbeit there bee some difference in some matter of circumstaunce but the same agreeth with the lawes both ciuill of Nations in substance which generally do inflict the penaltie of death vpon euery one that is a worker of treason Besides if the statute lawes of England wil bind the king himself for any matter within his realme when the intentiō of the makers of the law is such as it is verie plaine and cleere without all controuersie that it doth shall not a statute law bind the queene of Scots especially for mattter perpetrated within the realme And as touching the said statute of the 27. shee could not pretend ignorance for that she had vnderstanding of it nor alledge a mislike therof for that by her voluntarie subscription she had approued it nor except against the seueritie of the law because it is agreeable both to the ciuill law of the Romanes also to the law custome of her owne countrie and therefore it may be said to her Non potest quis improbare quod ipse approbauit a man may not bee contrary to himselfe in disalowing that which himselfe hath allowed Also Patere legem quam ipse tuleris suffer the same lawe which you haue made your selfe Shee meant death to the queene of Englands person let her not therefore mislike if the queene of England doth minister the like measure to her person for as it hath been neere fifteene hundred yeeres agoe trulie written Non est lex aequior vlla Quà m necis artifices arte perire sua No iuster lavv can reason craue Thē seeking death the same to haue Also it is a rule of the ciuill law grounded vpon the law of nature Id debet cuique placere in sua persona quod placuerit in aliena that euerie man ought to like that in his own person which he would haue done in the person of another neither doth the priuiledge of dignity in the person alter the nature and qualitie of the offence in case of treason howsoeuer it doth in other cases as before I haue sundrie wayes confirmed The 4. obiection THE fourth obiection made against the sentence and excution of the Scottish queene is another exception taken against the law of the lande because in the case of treason it punisheth as seuerelie the intent as the deede the minde in conspiring as the hand in executing for thus they reason It is both against the lawe of nations and the law of nature howsoeuer it bee according to the lawe of your lande to put a queene to death for a bare and naked intent an imagined treason be it neuer so haynous when there followeth no hurt For whē her desseines neither did nor could hurt the Queene of England as neuer hauing their intended effect what reason is it to punishe a fancie and feare of treason with so great a punishment as death The Aunswere TO this I make this aunswere that the lawe of England heerein inflicteth none other punishement for treason than the ciuill law and law of nations throughout the whole world commandeth vseth and practiseth The ciuill law hath these wordes Eadem seueritate voluntatem sceleru quae effectum puniri iura voluerunt L. quisquis C. ad L. Iuliam maiestatis the lawes will haue him that conspireth treason to be punished with the same seueritie as him that doth commit it Againe not onlie in the case of high treason but also in omnibus atrocioribus delictis punitur affectus licet nō sequatur effectus in al criminal offences of the highest degree the affect is punished although no effect follow And this lawe hath not only been so obserued generally in all nations aboue twelue hundred yeeres past but there was many hundred yeeres before Christes time in casu perduellionis in the case of treason committed against the state the like law called lex 12 tabularum established 12. Tabularum ff ad L. Iuliam maiestatis which inflicteth death for the will and intent of treason And therefore the said two Emperors Arcadius Honorius in their cōstitution made against treason said not volumus D. L. quisquis ad L. Iuliam sed sic iura voluerunt the lawes were so before their time But to say that there ought in offences of the highest degree no punishmēt to ensue vnles the act were consummate were most against law for two speciall causes The one for that such hope of impunitie would encourage malefactors to practise most daungerous and audacious attempts against kinges and common weales Secondly if they stay to punish till the fact be done the losse will be irrecuperable and the offence as this case is in a competitor though most haynous dispunishable For in this case in question the death of her Maiestie whom God euer preserue being taken away all commissions and magistracies for iudicial places should cease so that this being contriued by a cōpetitor to the kingdome as the Queen of Scots by open and expresse accord hath often declared herselfe the same offence by the accesse or taking vpon her the crowne and dignitie should by lawe be purged and the competitor cleared For king Henrie the sixt after the ouerthrowe giuen him by king Edwarde the fourth was by act of Parliament disabled from his crowne and dignitie And yet afterwardes the saide king in his redemption helde Parliament and in the same the question did growe whether there needed any reuersall of the saide former acte made against the sayde king It was resolued that no reuersall was needfull but ipso facto that the sayd king Henrie the vj. tooke vpon
the eternall and Almightie Lorde of his vnspeakable and accustomed goodnesse by a myraculous discouerie preserued the same The second Chapter containing a second Analogie or Resemblance betvveene the Emperor Licinius and the said Marie Queene of Scotland A second president much resembling the case in question is offered vnto vs from our countrieman and most Christian Emperor Constantine the Great who commaunded the death of Licinius the Emperor and yet this act was neuer controlled by any writer The Historie AFter that Constantine had taken in open hostilitie Licinius consort with him in the Empire Eusebius Socrates Sozomenus Sigonius de imperio occidentali Mexia in vitis Constantini Marentii Licinii who fauoured the Heathen persecuted the Christians and came in armes to violate his person yet at the request of Constantia his sister wife to the said Licinius he spared his life bound him to remaine at Nicomedia in the Prouince of Bithinia But when afterwards Constantine was enformed that the saide Licinius attempted a new insurrection and was to that purpose confedered with other Princes Constantine the Emperor put to death his Colledge Emperor Licinius and neuer controuled therefore and sought to flee away from the place appointed than did he foorthwith commaund the said Licinius to be put to death in the xv yeere of the said Constantines raigne when hee was lx yeeres of age and in the yeere of our Lord God 377. The comparison and resemblance betweene these two cases is verie like First Constantine and Licinius vvere both chosen Lordes and Princes of the Empire So Elizabeth Queene of England and Marie Queene of Scotland vvere both called to the state of kinges in the yle of Britanie The Empire of Britanie diuided into two kingdomes as the Empire in Constantines time was into two Empires although in diuers distinct kingdomes and therfore the doinges of Licinius mought seeme to haue more colour of right to the Empire than Mary of Scotland to entitule herselfe in this Realme Marie queene of Scotland but a titularie queene Kings of Scotland haue been feudaturies done homage to the kings of England beeing also but a titularie Queen in her ovvn land as it appeareth by the Chronicles and by auncient recordes her Progenitors haue done homage for their kingdomes to the crovvne of England Licinius notvvithstanding manie princelie benefites receiued at the Emperor Constantins hands Eusebius Socrates insomuch that he vvas aduaunced by him to the mariage of his ovvne sister Constantia vvhich descended from a princelie progenie of kings yet contrarie to his oath and promise like an vngratefull man he became a professed enemie to Constantine Marie of Scotland albeit shee receaued manie great fauours at the hands of Queen Elizabeth in sauing both her honour and life Scotland in an 1568. England 1◠reg Eliz. vvhen she vvas so earnestlie pursued by the Lordes and the commons both of Scotland and England yet like an vnthankfull person shee did shevve her selfe contrarie to her vovved promise an apparant enemie to the Queene of England Her letters to the B. of Glascon to B. Rose Morgan and Mendoza Licinius vvould alone haue bin Lord and prince of the Empire by the remoue of Constantine So Marie vvoulde bee the onelie Queene of Britanie Diuers books and pedegrees published by her agents and fauorites to that effect Resignatio facta 1567. Vide Buconanum fol. 196. And Holingsheds Chronicle fol. 388. and not onlie abandon her ovvne sonne from the kingdome of Scotland after that she had resigned the same vnto him but also expell her Maiestie Queene Elizabeth from her proper vndoubted kingdome of England Licinius vsurped an vniust title calling himselfe the vniuersall Emperor So did Marie of Scotlande giue long since In the booke called Expositio cansarum And she did it at her entrie into Poitiers in Fraunce and would not be reduced from the allowing of the same in all her proceedings ouer since both the title and armes of England vsurping therein the roiall state of her Maiestie and crovvne of England Licinius came not vvillinglie vnto Constantine but by force of armes vvas taken at Chrysopolis a Citie vvithin the prouince of Bithinia and brought to Constantine Marie of Scotland came not vvillinglie into the lande and dominion of our Soueraigne Queen Elizabeth Hollingsheds Chronicle fol. 392. but being encountred vvith her nobilitie enforced to leaue the field came by boate into Werkington Hauen in the vvest marches of England Licinius had his life once pardoned for open hostilitie against the Emperor Constantine Mexia in vita Cōstantini ca. 1. Eusebius Socrates Sozomenus Marie of Scotlande hath had her life spared for murdring her husbād also for hostilitie and treason practised against Elizabeth Queene of England 13. regni Reginae Elizabethae published in Parliament Licinius although pardoned Mexia cap. 10. Socrates lib. 1. cap. 2. Sozomenus lib. 1 cap. 2. yet vvas not too far trusted by Constantine but first cōfined to Nicomedia aftervvards to Thessalonica and there had a noble gard about his palace and person Marie of Scotland Iustlie mistrusted for giuing the armes and title of England and refusing to ratifie the treatie of Edingburg and afterward for procuring the rebellion in the North and manie other treasons since she had for her abode Carlile castle Bolton Castle Sheffeld castle all at the Queene of Englands great charges and expenses and great fauours vvas vpon most iust cause mistrusted and therefore confined to certaine statelie houses in England there had princely maintenance and an honourable gard attending her person Licinius did seeke to flee avvay from the place vvhereunto he vvas enioyned Marie of Scotlande did manie times practise the like in England Confessed by her before the Lords at Fodringa castle Licinius did treat vvith diuers princes and captaines to make nevv vvarres against Constantine Marie of Scotland did not onlie practise vvith diuers princes The practise of bringing in of forces cōfessed by her before the Lords Noblemen and others to bring in forreine forces into the Realme of Englande The rest confessed by Babington Ballard and other of that conspiracie and most horrible treason but also did conspire and contriue vvith euil disposed subiectes to England the chaunge of the state the ouerthrovve of religion the death of her Maiesties sacred person the massacre of the nobilitie and an vniuersal desolation of the vvhole Realme To conclude Mexia in vita Constantini ca. 1 Socrates Sozomenus in the foresaid places Licinius for endangering againe Constantines person and seeking by nevv troubles to aspire to the Empire like as Maximinianus before had done vvas by the appointment of Constantine adiudged to die Marie of Scotland hath giuen far greater cause to our Constantine Elizabeth Queen of England to fear nevv conspiracies both against her Maiestie the state of the vvhole realme like as the said
sonne Conradine put to death by king Charles the vvhich being yong and not able to make resistaunce left his countrie vnto Manfrede the vvhich Charles Earle of Aniew Prouence the French kings brother at the request of the Cleargie of Italie manie yeres after subdued conquered and there beeing chosen and crovvned king of Naples in his daies Conradine being grovven to yeres and desirous of his fathers kingdome by his father giuen him much holpen and furthered by the personall presence of manie great princes hee entred the countrie in vvarlike maner vvhere he vvas taken prisoner and after tvvelue moneths imprisonment by the opiniō of the best learned in the lavve in open iudgement hee vvas condemned and publikelie vvith manie his confederates hee vvas commaunded by the same Charles to be executed So vvhen Lewes king of Hungarie vvas consulted by his nephevve Charles King of Naples Collinutius li. 5. vvhat hee vvere best to doe vvith Ione Neapolitan Queene than his prisoner An aduise of a king for a queene to be put to death hee sent tvvo noble men vnto the said Charles vvith this determinate ansvvere aduise that she should be brought to the same place vvher she strāgled her husband there to be strangled in like maner her selfe ¶ The iiij Chapter conteining the Actes and iudgements of sundrie Popes which haue approued the death of some princes BVT to leaue the examples of kings and to come to Popes vvhose acts vvill better serue to satisfie some mens humors than all the Presidentes of Kinges and Emperours be they neuer so godlie Thēselues say a Pope may erre in maners but not in iudgement if Popes cannot erre as Popes doe affirme than Pope Clement the fourth his example vvere able to persvvade in this case euen Pope Sextus Quintus himselfe novv Pope of Rome although he be one of the chiefe pillers and patrones of the Scottishe Queene A iudgement of Clement of putting a king to death Colimutius in historia Neapolitana lib. 4. pag. 186. Henricus Gildifingensit in historia Austriaca for that the said Clement deliuered for lavv in Conradine the king of Sicelie his case that because he had compassed to take avvay the life of Charles the king of Naples it vvas both lavvfull and expedient for the saide Charles to put him to death An other example of a Pope And taking vvith vs the said Popes ground and maxime that Popes cannot erre a second example vvill serue of an other Pope called Boniface vvho put to death the Pope Celestine vvhom hee had in prison for a lesser cause a great deale then that of Conradine Collinutius li. 5. Vide Cornelium Agrippā de vanitate scientiarū c. de eccles magigistratibus de tribus mirabilibus Bonifacii Metuens as the history setteth dovvn in expresse termes ne ob singularem pietatem ad pontificatū denuo reuocaretur that is because hee feared that Celestine the olde Pope vvould for his singular vertue bee called to his Popedome againe thus did Boniface not for anie treason practised against himselfe but for feare of loosing his liuing put Celestine a good Pope to death And because the Pope in creating of Cardinals Cardinals in their creation Popes felowes Gigas de crimine laesae maiestatis Iulius clarus receptarum sententiarum lib. 5. calleth them the Princes of this vvorlde and his brethren part of his body making therfore the crime of treason called crimen laesae maiestatis to lie in offence done to their persons asvvell as to himself as is by Gigas and Iulius Clarus affirmed I thinke the iudgement of Pope Vrban the sixt may be conioyned vvith that former president of Boniface the viii vvho hauing gotten viii Cardinals in prison did for the preseruation of his ovvne person as hee did pretend cause fiue of them to bee put in sacks and being therein fast bound to be cast into the sea Pope Vrban put to death 8. Cardinals for preseruation of his owne person Collinutius li. 5. the other iii. being conuicted at Genua in open iudgement he caused to be beheaded and their bodies to be dried in an ouen and to bee carried vvith their three purple Hats borne vp before him A strange crueltie of a pope vpon dead bodies of his owne felowes vvhen hee vvent any vvaies foorth to the intent that this mought bee a terror vnto all other that shoulde contriue anie thing against his holines And least anie Romane Catholike shoulde thinke that it is an vnchristian part to put a christian Queen to death I giue him the same Pope Vrbans action for his instruction vvho vvhē the svvord vvas brought al blooddy vnto him Collinutius li. 5. vvith the vvhich Charles king of Naples nephevve to Lewes king of Hungary vvas by treacherie murdered at Buda in Hungarte not vvithout the due punishment of God inflicted vppon the murderers and their abbettors for the same hee allovving the facte A Popes allowaunce of the treacherous murdering of a king handled the saide svvorde so embrued vvith bloud in his hande and tooke great pleasure in beholding of it If a Pope made allowance of so treacherous a murder of a good king what disalowance is there to bee made of a iust and honorable sentence giuen of a tumultuous Queene And yet this is that Pope Vrbanus minime Vrbanus Platina in the life of Vrban the vi Collinutius li. 5. Mexia in the life of Vencelaus as Platina saith vvhich not long before did aduaunce the sayde Charles vvith all the blessinges and aide that he could in his title claim against the said Ione to the kingdome of Naples pronouncing his curse against her as a scismatike and rebell and that notvvithstanding he aftervvards fell as fast to the cursing of the saide Charles Collinutius li. 5. because he vvould not create one Bitillus a bitelhed and verie levvde person the saide Popes nephevv to be Prince of Capua Lord of Dirachium in Dalmatia These fevve examples vvhere kinges Emperours and Popes haue put other princes of like condition to death may serue in case of the Scottish Queene to persvvade any man that is not too too farre distempered in his iudgement especiallye seeing the practises of these vvhich for their treasonable demerites vvere put to death are far inferior to this her most horrible and treacherous conspiracie and that there can neuer be one historie or example shovven in such villanie cōparable to this vvhere a Queen hath had so many times her honor and life preserued vvhen her ovvne subiects vvere in armes against her in Scotlande vvhē her Nobilitie for the murdering of the king her husbande craued her death by Iustice in England vvhen the nobility and commons of England for nevv and fresh conspiracies and by her often reiterated against the Queenes Maiestie and the good estate of the land haue againe and againe earnestly requested both in open Parliaments and els vvhere due execution of
vaine the benefit of the lawe that doeth offend against the lawe So is the Queenes Maiestie in her gratious Realme a sanctuarie to euerie king that commeth within the same vnder her highnesse protection vntill he committeth a capitall delict and offence against the same and than vpon the reason of the foresaid lawes he looseth the benefit priuiledge thereof like as the benefite or priuiledge of safeconduit is lost when after the safe conduit graunted any crime is committed but for a farder confirmation of the premisses we shall speake more at large in the next chapter The sixt Chapter containing an aunswere to certaine obiections latelie made by certaine fauorites of the Queene of Scottes FOR asmuch as some partiall and euill affected Aliens and some hollow and dissembling subiects will perhaps in this honourable and iust action maligne the proceedings of the whole Parliament and the sentence and execution thereuppon I thinke it not amisse to meet with some of the best of their Arguments the which at the first showe might seeme to crosse or controll their doings The first obiection The first obiection is That Par in parem non habet imperium that is an absolute Prince ouer and against another absolute Prince hath no iurisdiction or soueraintie And this was by Prince Conradine a Prince more skilfull in feats of warre than in points of law Collinutius lib. 4 hist Neapolit obiected vnto Barius king Charles his Prothonotarie after that he had read the sentence of death giuen against him The like argument doth Matheus Parisiensis alledge in king Iohns case Parisiensis Monachus in sua historia whē the French king wold haue sentenced him for the Dukedome of Normādie Vpon the which maxime or rule it is inferred that forasmuch as our Queen Marie of Scotland were both Queenes and of egall power and authoritie that the one can haue no such power to sentence or punish the other The Answeare For aunswere it may then trulie and iustlie be said that whatsoeuer showe this argument maketh in apparance yet it is nothing at all in substance For to let passe that which is much doubted of by many whether the Scottish Queene were at the time of the sentence giuen Queene of Scotland or no seeing by the three estates of Scotlād she was disabled To omit also that shee relinquished long time before all her right title and interest in the same realme if she had any to the Lord Iemie her sonne now king of Scotland To passe ouer in like maner how euident a thing it is and most notorious that the kinges of Scots haue been feudataries and done homage vnto the kings of England See Hall and Foxes historie reg 4. William Conqerour malconib Edward 1. Richard 2. and haue appeared in person in Parliament at Yorke and had the place of the first Peere in England whereby it may bee inferred that the Scottish Queene was no absolute Queene but had respect was inferior to the crowne of England if we should graunt them all this for dispution sake that shee was still Queene of Scotland and farder that she was an absolute Queen what than what can they infer of this doth equalitie in dignitie giue supreame power and soueraintie in the kindome of England This her soueraintie hath vndoubtedly a necessarie relation to her owne subiects the Scots and kingdome of Scotland not vnto the English and realme of England albeit I do graūt here for argument sake more than may doe to wit that she was still a Queene in dignitie Thomas Grammaticus yet I may right well deny her to be a Queene in soueraintie for she left all her soueraintie behinde her and became a priuate person and no soueraine at what time shee came from Loghléuen castle in Scotlande to the castle of Cokermouth in Englande And this point may soone be tryed by sampling the same in an other Princesse comming into anie forreine countrey If the King of Spaine should come into Fraunce although perhaps the French King mought take him for his brother in the sence of the Poet fratrum concordia rara yet I doubt he would not take him there for his fellow Lucan Tullie in his booke of dutiess Omnisque potestas impatiens consortis erit there is no kingdome that will abide a Copartner D D in l. est receptum f. de iurisd omnium Iudicum And as Tullie saieth Nulla sides nec sancta societas regni est There can be no firme faith nor holy societie of a kingdome ouer and aboue that euerie Prince in his owne principalitie is the greater c cum inferior de maior obed and it is an infallible rule that euerie Kinge out of his owne kingdome is no more but a priuate person Lapus in allegat xcij. Preses saith Paulus in suae prouinciae homines tantùm imperium habet hoc dum in prouincia est I. preses f. de officio presidis nam si excesserit priuatus est A president hath souerainty onely vppon the subiectes of his owne prouince and that whilest he is within his prouince but if he goeth forth of it he is a priuate person Vpon the conclusion of which lawe there grew amongest the learned this question Baratolus lib. 12. de dignitatibus c. whether a Kinge passing thorough or resiant in another kinges Realme and dominion mought make anie of his subiectes knightes and some helde opinion that he could not for that he had not there merum imperium supreme power and soueraintie but Regiam duntaxat dignitatem that is only the honour and dignitie of a king Other resolued thus that albeit in this case hee had no such soueraintie in him yet bicause this act was not cōtentiosae iurisdictionis of a cōtentious iurisdiction as when sutes passe in the kings cōsistory between party party Iason Alexander in L. extra territorium de iurisd omnium iudicum but iurisdictionis voluntariae of a iurisdiction voluntarie such as passe vpon pleasure before himselfe they were of opiniō that he myght make knights like as one Bishop may approue willes and confer orders in the Diocesse of another Bishop because the same is iurisdictionis voluntariae of a iurisdiction voluntarie but that a king in another kings dominiō or a Bishop in the diocesse of another Bishop hath merum imperium or soueraigntie that can neuer be showne but the quite contrarie Neither only is euery one in his owne territorie chiefe and greater than an other who in other respects notwithstanding is many wayes greater than himselfe but also he may punish there such a person greater than himself offending in his territorie insomuch that an Archbishop by a Bishop in the Bishops own territory an Emperor by a king in a kings dominion and countrie and a king by a Magistrate of a free Citie may there be punished for his offence Neither doth the rule Par in parem take anie place
Marie and other her confederates haue manie times done before In the Parliament holden 13. Elizabeth and therefore she had been in the high court of Parliament condemned to die manie yeeres past but that her Maiestie of her singular and great clemencie spared to giue her assent thereunto and of late againe vpon an other horrible conspiracie there is by the chiefest Lordes and Iudges of this Realme sentence giuen against her Proclamation therevpon and due execution respectiuely made according to an act of Parliament in the xxvii yeere of her Maiesties raigne The thirde Chapter conteining certaine presidentes of sundrie Emperours and Kinges vvhich haue put other Princes vnto death HOwbeit wee neede not farder by ensample to shewe that one Prince hath put another vnto death yet for the farther warrant and quiet of princes mindes and to stoppe the euill speeches of such whose heades are wholy busied in Princes matters it is not amisse vnto the former examples to adde first certaine presidentes of Emperours then of Kinges and lastly for those euill affected sort vnto whome the actions of the Pope are their best instructions the doings and iudgements of sundry Popes COnstantin so much renovvmed in the church of God and that amongest other his princelie vertues for his singular clemencie and care in religion did cause to bee put to death not onely the Emperour Licinius as before but also Maximinianus The loue of the countrey knoweth no kinted the elect Emperour beeing detected by his daughter vvife of the saide Constantine for an horrible conspiracie against her husbande and yet consider Constantine shevved vnto him all duties of humanitie and courtesie in so much that hee married his daughter receiued him vnder his protection giuing vnto him all princely entertainement at vvhat time hee vvas pursued by his vvicked sonne Maxentius to death yet consider vvhen so many benefites of this Emperour could not stay him Ambition no lesse vngratefull than bloudie but in the desire of a kingdome hee thought to bereaue his protector of life then Constantine loath to nourish in his bosome anie such serpent commaunded his death and saued himselfe An other like example is that of Rhescuporis A second president of an Emperour as Tacitus calleth him or as Suetonius Liuie Thrasipolis king of Thrasia vvho by Tiberius the Emperour vvas put to death Cornelius Tacitus lib. 2. annalium For vvhe ras the said Rhescuporis had compassed the death of king Cotys for that hee coulde not abide to haue him confort vvith him in the kingdome of Thrasia vvhich in Augustus daies vvas deuided betvveene them the sayd Rhescuporis vvas accused by queene Cotys to the Emperour and Senate of Rome for this his villanous fact in destroying her husbande vvhere he receiued iudgement both of depriuation of his kingdome and also of banishment but assoone as he vvent about to flee frō Alexandria vvhere he vvas confined vvith a strong garde honored against his vvill the Emperour Tiberius presentlie gaue in commandement to behead him Bloud thirsteth after bloud and yet the said king did neuer practise the death of the Emperour as Marie of Scotland hath practised the death of the Queene of Englande Holling sheds chronicle and that since the said Marie came to be a titulary Queene and had giuen ouer to her sonne Kinge Iemie to be the onely and absolute king of Scotlande An other president I find in the Emperor Henry the seuenth of that name The third president of an Emperour vvho conuincing Robert king of Naples and Prouince of open rebellion conspiracie vvith his subiectes against his person and Empire Peter Mexia in the life of Henrie the Emperour summoned him to appeare and finally by processe of iustice gaue sentence of death against him depriuing him of his kingdome of Naples A king for treason deposed sentenced to death and discharging all his vassals of their homage and fidelitie that they ovved him and farther gaue licence to Fredericke king of Sicelie the said king Roberts enimie to make a cōquest of the said kingdom in the behalf of his sonne Thus farre goeth the Historie Clementin de re iudicata c. pastoralis hovvbeit Pope Clement the seuenth in his Clementine calleth the saide Robert king of Sicely according to the old error of Popes Fazellus de rebus Siculis and not of Naples according to all old vvriters and found fault in themperours sentence about the manner of proceeding and not the matter in question for he doth not call in question the said iudgement as though it had bin vnlavvefull for him to haue put the said king to death for treason if he had bin founde vvithin anye of his dominions vvhere he had committed anie such horrible crime against him but in that hee did cite him out of that district and limites of the Empire to vvit out of Naples vvhich the Pope calleth Sicely vvhere had beene euer his continuall and notorious residence to the citie of Pisa a place iustly feared most daungerous to his person but if the saide king Robert had contriued the death of the Emperour vvithin the iurisdiction of the Empire and there had beene founde or as it is vvoont to bee vsed in criminall causes had beene sent thither to aunsvvere the contempt doone against his Maiestie then in that case Pope Clement did agnize and insert in expresse vvoordes in his Clementine published in the Councell of Vienna that the Emperour mought haue sentenced the sayde king lavvfullie to death Popes censure in what case a Prince may lentence an other lawfullie to death his vvordes are these Quòd si punitio criminis intra districtum imperialem commissi ad imperatorem forsan pertinuisse asseratur d c pasteralis verum est quidem si ineodem districtu fuisset inventus delinquens vel ad illum de more remissus Wherein hee doth agree very vvell vvith the ciuill lavv vvhich is that sortitur quis forum tà m ratione delicti quà m ratione domicilij that is a man may be vvithin the compasse of an other Princes iurisdiction and prerogatiue asvvell in regarde of his offence cōmitted as of his place of dvvelling the discourse vvhereof more at large hereafter In like maner Barnard king of Italie Barnard king of Italie put to death by Lewes the French king being persvvaded by the Clergie of his right and title that he had to the crovvn of Fraunce leuied an armie intending to recouer his right and to destroie them that than possessed in the kingdome but in the first encounter he vvas taken Belleforest in his French history had his eies put out a vvhile vvas kept in prison and after by Lewes Debonaire king of Fraunce and Emperour for the better assurance of his state commaunded to be put to death So likevvise Conradine king of Sicelie vvas by Manfredus prisoned Collmitius lib. 4 he bequeathed his kingdome to Conradine his
iustice against her A confirmation by manie reasons gathered out of the Ciuill and Canon lavve of the honorable sentence and execution past against the Scottish Queene BEfore I proceede to the instifying of the sayde sentence and execution I thinke it not amisse here to set downe what the Lawes of England haue beene in these Capitall offences not only from the Conquerors time but from the beginning of any Empire or principallity within this Realme searching what hath beene written herein I finde that the very imagination and intent of treason being in the highest degree without ouert facte hath in the times of all Kinges and in all persons beene losse of life and member losse of goods and lands and perpetuall corruption of bloud which Lawe agreeth verie well seemeth to haue commencement and beginning from a Ciuill constitution made by the famous Emperors Arcadius and Honorius in the yeare of our Lorde God 3 8 9. The effect of which Lawe for the matter in question foloweth L. quisquis C. ad L Iulian matestatis Quisquis de nece principis eorumque qui consilijs principis intersunt c. cogitauerit eadem enim seueritate voluntatem sceleris qua effectum puniri iura voluerunt ipse quidem vt maiestatis reus gladio feriatur bonis eius omnibus fisco nostro addictis Whosoeuer shall imagine or intend the death of the king or any of his counsell for the Lawes would with the same seueritie haue a man punished aswel for his wil in intending as for his fact in committing treason hee shal be beheaded as guiltie of high treason and his goods forfaited to our Exchequer Note here that the saide wordes bee generall and suffer no exception L. 4. C. ad L. Iulian maiestatis which also is in the verie next Constitution precedent by three other Emperors Valentinian Valens and Gratian confirmed where they vse these wordes In sola causa laesae maiestatis omnibus aequa conditio est nulla habita militie generis vel dignitatis defensione In the onelie cause of treason all persons are of egal condition debarred from all defence and priuiledge of militarie vertue birth or dignitie And as the wordes of the law are generall including all persons whosoeuer so is the selfesame law generall because it receiueth allowance in all countries and in Scotland it selfe where the ciuill lawe is exercised and in that regard may be called Ius Gentium the law of Nations Quia eo iure omnes gentes vtuntur because in all Nations the same law and penaltie for treason is vsed wherein the Scottish Queene coulde not pretend ignorance seeing it is the lawe of her owne countrie and the law of all the worlde and seeing she confessed her presciencie knowledge thereof as also of the statute made in the same effect the seuen and twentieth yeere of her Maiesties raigne discouering in her letters to Babington that if her conspiracies were knowne to her Maiestie it were sufficient for that Queene to inclose her in some hole foorth of which she should not escape if so bee shee did not vse her worse as though shee had said the hainousnesse of her desert and penaltie of the lawe did inflict a greater punishment on her than being kept close prisoner which shee further confesseth in plain words in her letter to Mendoza the Spanish Ambassador Let this be kept secret forasmuch as if it come to bee reuealed it shoulde bee in France the losse of my Dower in Scotland a cleare breach with my some and in this countrie my totall ruine and destruction And the said statute of the saide xxvij yeere of her Maiesties raigne doth not alter the substance of the offence in treason or make it more greeuous or preiudiciall than it was before but for as much as her Maiesties life whome Almightie God preserue to the end of all time was sought by many wicked complots of desperate miscreants to bee taken away and the publike peace disturbed the bodie of the whole Realme to preuent that mischiefe that this might serue as an other warning to stay their furie enacted and set downe a more honourable proceeding against all such violent Competitors of the kingdome than there was before therin adding rather forme than substance that if anie such villanies were attempted it might both in the matter and maner haue the more honourable proceeding Seeing than the Scottish Queene is both by generall wordes and also by especiall demonstration within the compasse of the lawe it remayneth to see what can be sayde for her exemption from the sayde lawe I heare that principally alleaged for an excuse that she was an absolute Queene and therefore in her person not to be impeached as though it were to bee iustified by any lawe in the worlde for a Queene to contriue the death of an other Queene and that which is most treacherous in her owne kingdome Or that a King or Queene comming foorth of her owne Realme to the kingdome and dominion of an other King or Queene may there doe what they list without controlement vnder colour of their kingly prerogatiue And although I should graunt that she was an absolute Queene and in respect thereof had diuers priuiledges incident vnto her person yet in this case all priuiledges that goe to and folowe the person In case of treason no priuiledge will serue are excluded Quia in causa laesae maiestatis saith Baldus priuilegiatus non potest allegare priuilegium A man priuiledged in his person in case of treason cannot alledge his priuiledge And this is a most general lawe and all persons whosoeuer are subiect to the same L. Q. in Prouincia vbi de criminine agi oportet that in what place they haue committed any crime ther according to the law of the place without regard of any priuiledge they ought to bee adiudged Et hoc ius perpetuum est L. edita de edendo C. 1. Inst de satisdat tutor Parag. 1. saith the Text that is this law is generall for so this word perpetuū is in the ciuill law in sundrie places vsed and in this verie place it it is so by the learned expoūded Neither can a king in in another kingdome challenge any such prerogatiue vnto him that for an offence giuen in the highest degree he may not ther be punished For euerie king out of his own kingdome is to be accounted of Lapus de castillo allegat 92. but as a priuate person for that he hath no longer merum imperium that is supreame and absolute gouernment but doth only reteine honoris titulos dignitatis the title of honor and dignitie within the territorie of an other king So that ther where he hath offended per omnia distringitur etiam quoad personam he may bee punished in all that he hath that in his person zabarella e pastoral de re iudicata D. D. c fi de sore competent for ratione delicti-sortitur