haue place amongst the true and authentick registers of so noble a Realme By which genereux and iust act she merites no lesse praise nor the Romanes and Ephesians the one defacing the name of the Tarquins for the meshant act of Tarquinius Superbus the other making a Law prohibitiue to all historians neuer to mention the name of Impius Erostratus within their commentaries But fearing least prolixitie make mee tedious I retranche and omitt manie pithie allegations that might be pertinentlie opponed to the aduersare reserring a more ample discourse vpon this subiect to more leasure or rather to one more versed in Lawes and histories nor I am closing this section of my Palinod with a double admiration In the one I cannot enough maruell howe our aduersaries can obiect so confidently against vs this law positiue against strangers seeing they think the positiue Law salique should haue no place nor power against their proximitie of blood in France Et si identitatis ratio sequenda est aequalium aequalis esse debet consideratio quod sibi fieri nolunt alteri facere non debent And so they should in reason think their law transmarine or peregrine to haue no more authoritie against his Maiestie nor they would wish the Lawe Salique to haue against their self according to old decisions Patiendae sunt Leges quas ipsi tulimus Quod quisque iuris in alios statuit ipse eodem iure teneatur My other admiration is that a Nation so wise politick and prudent should not for-see the inquencheable combustion that may bee kindled within their owne bowels by establishing or maintaining Lawes vniustlie made against iust successors to their crowne which kind of partialitie as it hes euer beene the pest perdition of all common wealthes vsing the same speciallie of such as haue bene most famous and glorious so can it not in this age produce anie better effects but to distract the people vpon diuersitie of respects to follow diuerse and dangerous factions Which inconuenient no other Christian Nation had more need to prevent nor the flourishing Realm of England for as they are wealthy so are they much enuied for their felicitie whereby it cannot faile if anie debate be for their crowne betwixt contrair competitors but their Realme shall be a stage or playing fielde to all Nations the one pairtie inuyting some forainers to his aide and his aduersare dooing the like knowing that no stranger shal be vnwilling thervnto some vpon auarice some vpon malice some for both euerie one already attending to set vp their rest vpon hope to repaire their aduerse or base fortunes with the ruine of that most noble famous and vertuous Realme which of old for the fertilitie of the soile and rare bewtie of the inhabitants was called the Realme of God whome of his great mercie with ardēt vowes and humble supplication I implore long yea euer to preserue them from such destanie dysaster and desolation As to that where I moste irreuerentlie and iniuriouslie alledge his Maiestie to bee made incapable by reason of a clause contained in the act of Association made at Westminster Anno _____ which his Maiesties mother of good memorie did signe as is alledged In this iniust allegation I confes a malitious impudent error for no such clause is contained in the Association and though it were contained yet what her Maiestie did consent or yeeld vnto in her captiuitie propter metum qui potest cadere insexum constantiorem is not obligatorie to her self much lesse to her innocent successor whose title is Maior omni exceptione For probation whereof I will not reckon his auncient descent from the Royall blood of England as that of Malcolme the 3 called Canmore with the Niece of Edward the Confessor before the conquest nor that of King Iames the first with the petite Niece of Iohn of Gant Duke of Lancaster but I holde mee at a probation so patent and recent as no man can pretend ignorance or obliuion thereof affirming as the trueth is that his Maiestie hes the iust title ex vtroque Parente For being the vndoubted heire of Margaret eldest daughter to King Henry the 7. he must also be-he vndoubted heritour of the crowne after the death of Queene Elizabeth her Maiesty present who is the only graff or branche remaining of the masculine descent or of the sonnes of the said Henry the 7. In whose person by vertue of his mariage with the righteous heire of the house of York like as hee was the vndoubted heire of the house of Lancaster the crown of England was infallibly established and the two roses vnited And the cleernesse of this Pedegree ioined with the knowledge I had thereof maketh my offence so much the more inexcusable I being a cōscienceles contradictor to my owne knowledge committing therby not only an civill heresie but euē a sin against the holy spreit in oppugning the known veritie God most iustly punishing my pride adding vn to the multitude of my other sins this most capital damnable consort of desperatiō which by no meanes I had escaped if I had obstinatly perseuered in my former induration yea notwithstanding my vnfenzeit repentance I should yet doubt of Gods mercy if former examples did not assure mee But when I see a chief Apost against his knowledge denying his Maister repenting confiding receiuing pardon I begin to thinke that it is naturall to sin brutall to perseuere Christian to repent diuelish to dispair quia peccantium partus optimus poenitentia poenitentium statio tutissima confidentia Sed quia veram poenitentiam pudor peccati commissi pracedit I will with Miriam be ashamed of myself as if my father had spitted in my face I wil be hūbled with the Publican confes my insolence with the forlorne sonne repent weep bitterly with Peter confide with the faithfull Brigand Knowing there is no sinne can exceed the mercy of God who descended from heauen to earth from thence did againe ascend to heauē to saue the sinners not the iust the Publican not the Pharisie leauing behind him many pithy arguments vnto such as would be called his Disciples perswading them to mercy after his example Whereunto the most noble both fidell infidel Princes haue euer bene inclyned according to that of the Poet Quo maior quisque est magis est placabilisirae Et faciles motus mens generosa capit c The great Monarch Iulius Caesar culd forget nothing but iniuries Titus called delitiae generis humani thoght the day euil spēded wherin he had not done some work of cōpassion And the Royall Prophet sayes Ne tradas bestijs animam confitentem tibi wherby is meant as the learned affirm that confessing penitents should not be deuourcd nor driuen to desperate courses By which clement moderation this present most christian King hath so honored enriched and strengthened him selfe with the harts of the people as is
doth not disaccord but accord with the right of Nations ingenere My third captioun grounded on the civill Law is so confused and cautelous that it cannot well bee reduced to anie forme I will therefore with this cleare demonstration open vp and impugne the same As for the ciuil Law if we meane the Romane or Imperiall to the Emperours their selues haue confirmed and obserued Iura sanguinis following Edicta Praetorum vnde Liberi vnde Legitimi vnde Cognati And if thereby we shall vnderstand the Municipall or common Law of cuerie Realme then may it be evidentlie prooued that euery Realme hes prouided and established fundamentall Lawes for maintayning the blood Royall in the right line Whereby it is euident that by the Law Ciuill in what sense soeuer it be taken his Maiestie hath a most iust claime and competition As to the Law Diuine by the historie of Iacob Esau may appeare what respect and preferment was giuen to Primogenitur or first-birth seing Iacob thogh he was elected did pretend no right thereto vntill his elder brother did renounce and abiure the same And in Numeri the same prerogatiue is confirmed to the eldest and euerie one ordained to succeede according to proximitie of blood Heerewithall the lineal succession of the Kings of Iuda from father to children and failing thereof to neerest kinsmen doeth manifestlie proue this Ius sanguinis to haue bene autorized as wel in the Pallice as amongst the people Neither can that of Moises in Deuteronom be omitted vbi Odiosae Filius primogenitus dilectae Filio praeferri iubetur such was the respect of primogenitur And albeit this right of primogenitur was altered in Iacob Ioseph Salomon and some others yet such few particular exceptions done at the speciall command of God whose pleasure is reason and whose power hes no limitation doth not abolish the generall Law more nor the particular fact of Phineas doth abolish the general Law against homicide or the Polygamy and incest of the Patriarkes destroy the Lawe against Incest and Adulterie Then the Law of God howsoeuer I haue wrested the same in my former partialitie doeth not derogate but corroborate the title of my Soueraigne Lord vnto the Realme foresaid But the chief question wherein I doe most cavill and calumniat is this If a Prince hauing Ius sanguinis to an other Realme as this present King of France Henrie the 4. beeing but King of Nauarre had to the Realme of France and as my soueraigne Lord hath to that of England if anie Positiue Law of that Realme where he should succeede can iustlie seclude him Whereunto my answere is negatiue impugning my former affirmation first in Thesi syne in Hypothesi by these vrgent reasons and examples following In Thesi First Princes having no superiour power but the supreame Godhead they be only subiect to his lawes omnibus alijs legibus humanis soluti dicuntur and if of their naturall pietie or goodnesse they shall humble them self to be subiect therevnto as Theodosius Valentinian seemed to advyse them saying Digna vox Principe Legibus se subditum esse fateri that subiection or rather moderation est voluntatis non necessitatis officium Which assertion is founded vpon good reason for if forraine Lawes should binde them then were they vassals no Princes if domestick lawes then shoulde they be astricted to punition in cace of transgression and to be astricted to punition is a manifest subiection no soveraignitie Next althogh it may be said that the Prince in his Fisque and in manie vther things quae sunt privati iuris is subiect to the Lawe yet neither may hee nor his crown be bound in ijs quae sunt iuris publici * Atqui ius Regiae successionis publicum est cùm omnes â—â—…uitates sint publicae As also the same may bee verefied by all the titles of the Lawe conceiued of Dignities and Magistrates both in the Digestes and Code Thirdlie if anie Lawe may be extended to the crowne or Prince they suld bee expreshe mentioned therein speciallie where the Law is exclusiue dinisiue or obligatorie and for this cause the Law excluding the femals à feudis the Lawe of division of heritage inter fratres sorores the Lawe oblishing the successor with the goods of the defunct to pay his debts binds not the crowne when the crowne is not expressed per rationis sdentitatem the Law contra peregrinos conceiued simply without mention of the crown may not be extended therevnto To affirme the contrary heerof and to alleadge that Iura successionis haereditaria which be made in any Realme suld binde the Prince aswell as the people because they bee made within the Realme which he hes or pretends to haue is to sturre vp sedition yea it is as absurde and inept as to persew a Shiref or a whole Prouince for fulfilling all contracts made within his jurifdiction or within the precinct of the said Prouince or as who should think the Schoole-maister subiect to the order appointed by him self for ruling his Disciples Perdlie to this houre there can bee no example exhibite where anie having the title of blood to the crowne of England with power and courage to bear out the same that any Positiue law hath barred them For proof whereof I will vse onlie such examples as be most recent The Positiue lawes made in Henrie the sixt his time against Edward Duke of Yorke did not impeshe him nor his race from the crowne nor the bitter statuts made by Richard the vsurper against that most magnanime Prince of worthie memorie Henrie the 7. did not seclude him from the right which he had both by God and nature Yea in our dayes the manifold Lawes and libels defamatours made against the most christian King present could not impesh him from the crowne of France Now in Hypothesi I cum to examine such Positiue Lawes as bee obiected against the King my soueraignes title of which kinde there bee speciallie two One auncient an other later To impugne the ancient I take my first argument from the Rubricke or Intitulation thereof bearing these words De ceux qui sont nez outre ou de la mer. i. De trans mare natis By which Rubricke or argument it is verie probable that this stature in the originall thereof did not containe this word Peregrinis for the tenour of a Lawe shoulde not exceed the nature or substance of the title and so it should not preiudge his Maiestie who is borne within the said Yland As also to them that will indifferentlie marke the drift and intention of that statute they shall finde ittend onelie against children borne without the four seas which compasse the said yland whereby Scotland is no more secluded nor Wales Cornewall And so it is not improbable which some alleadge that the Rubrique foresaid should be De Peregrinis trans mare natis non De Peregrinis trans mare natis Secondlie because the
said Law was proponed in the 25 yeare of the raigne of Edward the 3. vppon a question mooued If children borne out of his alleageance might possesse heritage within England Whereunto was answered and enacted that all children borne ouersea hauing their Parents at the time of their birth at the faith and obedience of the croun of England should enioy alike benefite priuiledge as other heires borne within the Realm so the statute is a generall affirmatiue for that particular and the argument obiected therupon is â contrario sensu which kinde of argument prooues nothing For if I should say Omnis homo est animal Ergo quod non est homo non est animal the consequent wer false and therefore is the decision of the Law Argumentum à contrario sensu noÌ„ procedit in verbis narratiuis Legis Nec etiam in verbis dispositiuis Legis when that argument is inferred to correct or reforme the common Law like as in this cace it doth by drawing the Law contra trans mare natos in a specialitie contrair the common Lawe to the prejudice of higher powers which be not vnder the power or coÌ„passe of humane lawes and for this cause the other ancient decision is contrair to their intention wherin is said Argumentum á contrario sensu non procedit vbi sequitur correctio Iuris coÌ„munis in specie Thirdly the words of the said statute running vpon and so oft expressing heires and inheritance declares the meaning therof onlie to be directed for priuat persons who must succeede to their antecessors Iure haereditario for Princes succeede aswell Iure familiae as Iure haereditario ordinis naturae beneficio non hominis and are not as priuate meÌ„ astricted to enter cum onere debitoruÌ„ but they enter as pleases them the one or the other way to the end their crownes bee not exhaust and exsorbed so the saide statute beeing conceaued for the vse of priuate men allanerly that must enter as heires and no other way it cannot preiudge his Maiestie who may enter an other way viz. per Ius familiae apperteining to all Princes Soveraigne Ferdlie seeing this Law against strangers was fouÌ„ded vpon two respects which pertaine onlie to priuat men and not to Princes it can no way strike vppon them The first respect was grounded vpon the consideration of loyaltie Quia duorum Principum summorum vnus subditus esse non potest agreeable vnto that of the Evangell Nemo potest duobus dominis seruire The other respect was to saue transport of gold and siluer and other defended commodities and to cut off the occasion of priuate intelligence practises For which cause in France was made Ius albinatus as the practisians testifie Now in the person of a Royall successor these considerations of loyaltie transport and intelligence are not to be feared Fiftlie in Realmes where most strait Lawes bee kept against strangers as in France that Ius albinatus forsaid by which of necessity all strangers that would testate or succeed they must be naturalized with this clause modò sint Regnicolae yet Princes haue succeeded and do succeede to great lands and Dignities within that Realme without anie benefite of naturalization as the old Kings of Nauarre borne out of France to manie fair lands in Guyen and Languedok The D. of Lorane to the Dukerie of Bar yea of old the kings of England to the ample Dukeries of Aquitane Aniou Normandie and Britaignie and that because soveraignes are presumed euerie one to be brethren to other and being brethren it wer indigne to esteeme them externe or strangers and inept to make them subiect to Lawes of alleageance which be onely proper to subiects and vassals Sixtlie the clause conteined in the said pretended act excepting Les Enfans du Roy doth exeeme the king my soveraigne out of the compasse thereof for that word Enfans is in the Latine Liberi and be Liberi in the originall and right signification is not only meaned children in primogradu but also Nepotes pronepotes natinatorum qui nascentur ab illis Et â—…os omnes qui ex nepotibus descendunt lex duodecim tabularum filiorum nomine comprehendit Seuenthlie this Law foresaid de albinatu although conceaued generallie yet could it not bee extended to the crowne aswell as to the subiect and therefore the wise and learned did deuise the Lawe Salique for the succession Royall Last if this statute against forrain birth take place then shall manie absurde inconuenients follow therupon First Princes the ornament bewtie and light of the world without whome were nothing but darknesse disorder confusion they should be in worse condition nor the moste ignoble subiect of their Realme for by that Law subiects may euer succeed hauing their parents subiects but Princes cannot haue that immunitie because their Parents were neuer subiects Againe if a Prince for honor of his Realm or for securitie or enlarging therof shall matche him self or his children with a forraine nation where hee or they beget children what barbarous iniquitie wer it to preiudge the parents remaining abroad for so honorable causes or to hurte the innocent children for a matter which lay not in their power to mend Now for particular examples to illustrate these argumentes I alledge but a fewe both before and after the conquest to shewe that forraine birth makes not incapabilitie to the crowne of England Edward the King Confessor before the conquest did cal home out of Hungarie his Nevoy Edward surnamed Vdislae borne in Hungarie who deing before the king his Vncle the same King Edward declared Edgar Athelin sonne to the said Vdislae borne also in Hungarie to be iust heritor albeit he was afterward defrauded thereof And after the Conquest Richard the first going to conqueis Ierusalem institute his Nevoy Arthur who was borne in Britaignie young Duke thereof to be his successor Like as king Stephan and King Henrie the 2. were both borne in France their Parents not being of the alleageance of England yet they were capable of the crowne of England The vther argument wherewith they impugne his Maiesties title is grounded vppon a statute made in the 28. yeare of the raigne of Henrie the 8. of worthy memorie wherein by consent of his Estates in Parliament is graunted vnto him full power by his letters Patents or by his Testament signed with his hand to declair determine and designe the successour of the crowne in cace his owne children should faile without issue of their owne bodies and the said crown to bee established in the person of the said successor by way of reversion or retour as they call it By vertue of this authoritie or arrest of Parliament giuen to the said noble Prince our aduersares doe alledge that by his latter Will or Testament he did institute and ordaine the succession of Francoyse Countesse of Suffolke his Neice by Marie his youngest sister to
succeede secluding altogether Margaret Queene of Scotland his eldest Sister and her desceÌ„t Wherunto I reply shortlie first by coniectures next by peremptorie answeres It is not probable that a Prince so righteous so wise so kinde as King Henrie the eight was known to be that he should so vnkindlie and vnrighteouslie deale with his eldest sister germane as to spoile and degrade her and her innocent succession of all honor and exspectation that God and nature had prouided for them Next hee could not forget the commendable answere of Henrie the seaventh his moste prudent father who at the contract of mariage made betwixt King Iames the fourth of worthie memorie and Ladie Margaret eldest daughter to the said King Henry the seauenth sundry of his counsel labouring to empesh that mariage said vnto him that it might come to the great dishonour and discommoditie of the realme in cace which was verie possible that England shoulde fall to bee subiect to the Kings of Scotland Whereunto the said noble Prince answered that in cace it fell out so there was no inconuenient to England for as William the Conquerour atteining to the crowne of England did ioine and subiect Normandie to England and not England to Normandy so Scotland beeing the least of the two Realmes should be subiected to England if any such accident should arriue because the lesser must cede and giue place to the greater By which answere the saide noble Prince Henrie the eight knew full wel it was not his Fathers meaning to defraud his eldest daughter nor her succession And therfore it is altogether improbable that hee should haue forget the mind and intention of his magnanime Father in a matter so recentlie and righteouslie done and that with his owne speciall consent and good lyking Thirdlie the said noble King knowing what torte and wrong his Father had receaued of Richard the 3. by such partiall exceptions made against his title and publishing so bitter lawes against him he coulde not be so obliuious much lesse iniurious as to fall in the same error which both hee himselfe and all iust men did so much abhorre in the person of the said vsurper Ferdlie in respect that about the same time when the said pretended Testament is alledged to be made it is certainlie knowne that the said noble King Henrie the eight did treat a mariage betwixt Prince Edward his sonne Mary of Scotland his petite Niece for which cause it were out of all purpose to think that hee should at one time deale so kindelie and vnkindelie as vnder pretext of such newe affinitie to preiudge his nearest Niece of all her lawfull esperances Last shall we beleeue that King Henrie the 8. who was a miracle yea a mirrour in his age of all magnificence appertaining to a Christian Prince should haue bene inferior in iustice and pietie to Iohn Galeas Duke of Millaine who shall bee for euer praised for his equitie in preseruing the prerogatiue of birth-right For going to depart he called his children said O dura Lex ô dura natalitij iuris praerogativa quae aequales genere ac natalibus inaequali sorte seiungis Dolebat enim Iani fily stolidioris annos virtuti Philippi Mariae anteferri My peremptorie answeres be these The first is grounded vpon this decision Nec verò si aliquis Rex consensum statuum haberet vt priuaret regno filiuÌ„ aut proximum posset tamen id iure facere quia qui priuare non poterit non debet id facere cuius praetextu per Legem inducatur privatio For it is so cleare as the Sunne at mid day all the Doctors both of the Canon and Civill Lawe in one voice agree thereunto that no Prince nor estate separatim vel coniunctim hes power to transfer the crowne from one to an other namelie where the crowne is successiue For if it were lawfull to reiect one and mak choise of an other then should succession be turned in election which were absurde And heerevpon is there manie decisions of the Doctours whereof I repeat a few One of Iason saying Quod regna deferantur lege Diuina naturali consuetudinaria Canonica primogenito per rationem huius textus Nemo potest disponere regna nisi secundum Legis dispositionem Idem Felinus asserit Ioannes Andreas Cap. licet De voto Abbas cap. intellecto de Iureiurando Vbi dicit Reges non possepriuare consanguineos spe regni * secundum Innocentium Nec patres Reges possunt primogenitos exharedare aut minuere iura primogeniturae Benedictus in cap. Reynutius in verbo in eodem testamento Quia Regna deferuntur iure sanguinis quae naturae beneficio competunt liberis exhaeredatione paterna tolli non possunt nec etiam statuum Regni ministerio in remotiorem transferri Denique cum Dominus non tulerit Israclitas imo dederit illos in direptionem quod spreta domo Dauid sibi Regem Ieroboam filium Nabath constituissent negari nequit quantum partiales Regnorum translationes à propinquioribus ad remotiores non solum legibus humanis verâ—…metiam voluntati Diuinae repugnent Secondlie the said pretended Testament was supposititious contriued by such as meant to defraud both the heires female of the said king Henrie the 8. aswell as these of his eldest sister which did manifestly appeare immediatlie after the death of the said youÌ„g Prince Edward when as the Lord Gilford eldest son to the Duke of Northumberland did marie with Ladie Ieane eldest daughter to the foresaid Ladie Francoyse Duchesse of Suffolke to whome the said Testament designed the succession the meaning of which mariage was to erect the said Ladie Ieane and to deject the two innocent and moste illuster Enfantes of Henrie the eight Queene Marie and Queene Elizabeth Thirdlie of the witnesse that had signed the saide pretended Testament three of the most honest famous thereof vppon remorse of conscience before Queene Marie their Soveraigne Lady and her honorable Counsel did depone confesse and sweare that the said Testament was neuer signed by the said king Henrie but was sealed by one William Clerk with the kings seale when as the king was either dead or in the last article or agonie of death hauing no sense knowledge or remembrance and these three witnesses were the Lord Paget Sir Edmond Montague Knight cheef Iustice and the said William Clerk affixer of the seale as is aforesaid Vpon which testification the same beeing duelie tried by all circumstances requisit that it was not by corruption suborning nor menaces exhibite by the said witnesses the saide Queene Marie to the honour of God and her Realm for defence of the verity iustice and dignitie of the succession Royall and for auoyding of manie inconuenients that thereof might haue ensued by the partialitie of the said pretended Testament caused the examplar memoriall thereof which was in the ChaÌ„cellarie to be cancellat lacerate and destroyed as a thing indigne to