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A05352 A defence of the honour of the right highe, mightye and noble Princesse Marie Quene of Scotlande and dowager of France with a declaration aswell of her right, title & intereste to the succession of the crowne of Englande, as that the regimente of women ys conformable to the lawe of God and nature. Leslie, John, 1527-1596. 1569 (1569) STC 15505; ESTC S108490 138,133 306

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the kīge Yet vntill suche time as the Kinge be intitled ther vnto by matter of recorde the inheritance remaynethe in the alien by the opiniō of all men And so ys a verie alien capable of inheritance within this realme And then it muste nedes fall ovvte plainlie that your generall maxime vvhere vpon you haue talked and braged so muche ys novve become no rule of the common lavve of this realme And yf it be so then haue you vttered very many vvordes to small purpose But yet let vs see farther vvhether there be any rule or maxime in the cōmon lavve that maye seame any thinge like to that rule Whervpon any matter maie be gathered against the title of the saide Marie Quene of Scotland There ys one rule of the cōmon lavve in vvordes somevvhat like vnto that vvhiche hathe bene alleaged by the aduersaries Whiche rule ys sett forthe and declared by a statute made An. 25. of Kinge Edwarde the thirde Whiche statute recitinge the dovvbte that then vvas Whether infantes borne ovvte of the allegiance of Englande shoulde be able to demaunde any heritage vvithin the same allegiāce or no Yt vvas by the same statute ordained that all Infantes inheritours Whiche after that time shoulde be borne owte of the allegiance of the kinge whose father and mother at the time of theire birthe were of the faithe and allegiance of the kinge of Englande shoulde haue and enioye the same benefittes and aduantages to haue ād carrie heritage within the saide allegiance as other heires shoulde Where vpon yt ys to be gathered by dewe and iuste construction of the statute and so hathe bene heretofore cōmonlie taken that the common lawe alwayes was and yet ys that no person borne owte of the allegiance of the kinge of Englande whose father and mother were not of the same allegiance shoulde be able to haue or demaunde any heritage within the same allegiance as heire to any person Whiche rule I take to be the same supposed maxime whiche the ad●saries do meane But to stretche yt generallie to all inheritances as the aduersaries wolde seame to do by anie reasonable meanes cā not be The statute of Edvvard 3. anno 25. touchethe inheritāce and not purchasse For as I haue saied before euery strāger and alien borne maye haue and take inheritance as a purchas●er And if an alien do marrie a woman inheritable the inheritance therby ys bothe in the alien and also in his wife And the alien therby a purchas●er No man dowbteth but that a denizen maye purchasse landes to his owne vse 11. H. 4. fol. 25. but to inherite landes as heire to any person vvith in the allegiance of Englande he can not by any meanes So that yt seamethe verie plaine that the saide rule bindethe also denizens and dothe onlie extende to discentes of inheritance and not to the hauinge of anie landes by purchasse Nowe will we then consider whether this rule by any reasonable cōstruction can extende vnto the ladie Marie the Quene of Scotlande for and concerninge her title to the crowne of Englād Yt hathe bene sayed by the aduersaries that she was borne in Scotlande whiche realme ys owte of the allegiance of Englande her father and mother not beinge of the same allegiance And therefore by the saide rule she ys not inheritable to the crowne of this realme Althowghe I might at the begininge verie vvell and orderlie denie the consequente of your argumente yet for this time we will firste examine the antecedente whether yt be trewe or no And then consider vpon the consequen●e That the Quene of Scotlande was borne in Scotlande Scotlande ys within the allegiāce of Englande yt must nedes be graunted but that Scotlande ys owte of the allegiāce of Englāde thowghe the saide Quene of Scotlande and all her subiectes of Scotlande vvill stovvtely affirme the same yet there are a greate nomber of men in Englande both learned and others that be not of that opinion beinge ledd and persvvaded there vnto by diuers histories registers recordes ād instrumētes of homage remaininge in the treasurie of this realme Wherin ys mentioned that the kinges of Scotlande haue acknovvledged the kinge of Englande to be the superiour lorde ouer the realme of Scotlande and haue done homage ād fealtie for the same Which thinge beinge trevve not vvithe standinge yt be comonlie denied by all Scottes men then by the lavves of this realme Scotlande muste nedes be accompted to be vvith in the allegiance of Englande And altowghe sins the time of kinge Henrie the sixt none of the kinges of Scotlāde haue done the saide seruice vnto the kinges of Englande Yet that ys no reason in our lavve to saye that therefore the realme of Scotlande at the time of the birthe of the saide Ladye Marie Quene of Scotlande beinge in the thirtie and fovverthe yeare of the reigne of our late Souereigne lorde kinge Henrie the eight vvas ovvte of the allegiance of the kinges of Englande For the lavve of this realme ys verie plaine that thovvghe the tenaunte do not his seruice vnto the lorde yet hathe not the lorde therby lost his seigneurie for the lande still remainethe within his fee and seigneurie that not with standinge The lorde losethe not his s●igni●rie though the tenāte dothe not his seruice But paraduenture some vvill obiecte and saye that by that reason Frāce shoulde likevvise be sayed to be with in the allegiance of Englande for as muche as the possession of the crovvne of France hathe bene vvithin a litle more then the space of one hundred yeares novve laste paste lavvfullie vested in the kinges of Englād Whose right and title still remainethe in the Quenes maiestie that novve ys To that there ys a greate difference betvvene the right and title vvhiche our Souereigne ladie claimethe to the realme of France ād the right and title vvhiche her highnes claimethe to the realme of Scotlād Althowghe yt be trevve that the kinge of Englande hathe bene lavvfullie possessed of the crowne of France vvhose right and title by iuste and lavvfull succession ys deuolued vnto our saide Souereigne ladie Yet duringe suche time as her highnes by vsurpation of other ys dispossessed of the saide realme of France the same realme by no meanes can be saide to be with in her highnes allegeāce especiallie cōsideringe howe that sins the time of vsurpation the people of France haue wholie forsaken theire allegeance and subiection whiche they did owe vnto the kinges of Englāde And haue geuen and submitted them selues vnder the obedience and allegeance of the vsurpers But as for the realme of Scotlande yt ys oterwise For the title which our Souereigne Ladie and Quene and her ꝓgenitours haue claimed vnto the realme of Scotlāde ys not in the possession of the lande and crowne of Scotlande but onlie vnto the seruice of homage and fealtie for the same And althowghe the kinges of Scotlande sithe the time of kinge Henrie the eight haue intermitted to
do the saide homage and fealtie to the kinges of England Yet for all that the kinges of Scotlāde can not by any reason or lawe be called vsurpers And thus maye ye see gentle Reader by the opinion of all indifferent men and not led by affection that the realme of Scotlande hathe bene and yet ys within the allegeance and dominion of Englande And so your antecedent or firste proposition false And yet that makethe no prouf that the realme of Frāce likewise shoulde nowe be saide to be with in the allegiāce of our Souereigne Ladie the Quene of England by reason of the manifeste and apparente difference before sheued But what yf your antecedent were trewe ād that we did agree bothe withe the saide Quene of Scottes ād her subiectes ād also withe you that Scotlande were owte of the allegiance of Englande Yet yt ys verie plaine that your cōsequente and conclusion can not by anye meanes be trewe The causes vvhy the crowne cā not be com●sed with in the pretēded maxime And that prīcipallie for three causes Wherof one ys for that neither the kīge nor the crowne not beinge especiallie mentioned in the saide rule or pretēded maxime can be intēded to be with in the meaninge of the same maxime as we haue before sufficientlie ꝓued by a greate nomber of other suche like generall rules and maximes of the lawes An other cause ys for that the crwne cā not be taken to be with in the wordes of the saide supposed maxime And that for two respectes one ys by cawse the rule doth onlye dishable aliens to demaunde any heritage with in the allegiance of Englande which rule can not be stretched to the demaunde of the crowne of Englande which ys not with in the allegiance of Englande but ys the verie allegiance yt self As for a like example Yt ys trevve that all the landes vvith in the kinges dominion are holden of the kinge either mediatlie or immediatelie and yet ys yt not trevve that the crovvne by vvhiche onlie the kinge hathe his dominion can be saide to be holden of the kinge For withoute the crowne there can be neither kinge nor allegiance And so longe as the crovvne restethe onlie in demaunde not beinge vested in any person with ovte the crownethere cā neither be Kinge nor allegiāce there ys no allegiance at all So that the crovvne can not be saide by any meanes to be vvith in the allegiance of Englāde And therfore not within the wordes of the saide rule or maxime The title of the crovvne ys also ovvte of the vvordes and meaninge of the same rule in any other respecte And that ys by cause that rule doth onlie dishable an alien to demaunde landes by discēte as heire for yt dothe not extēde vnto lādes purchassed by an alien as vve haue before sufficientlie proued 40. E. 3. f. 10. 13. E. 3. titlr̄e 264. 16. E. 3. iurāsde fai●e 17. E. 3. tit Scire fac 7 And then can not that rule extende vnto the crovvne beinge a thinge incorporate the right wherof dothe not descēde accordīge to the comō course or priuate inheritance but goethe by succession as other corporations do No man dowbtethe but that a prior alien beinge no denizen A Deane a Person a Priour beynge an alien maye demande lāde in the right of his corporatiō might alvvayes in time of peace demaunde lande in the right of his corporatiō And so likevvise a deane or a person beinge aliens and no denizens might demaunde landes in respecte of theire corporations not vvith standinge the saide supposed rule or mxime as maye appeare by diuers booke cases as also by the statute made in the time of kinge Richard the seconde An. R. 23c 36. E 3. fo 21. tit droicte 26 lib. Assis. p. 54. 12. lib. Assis tit enf 9 H. 6 fol. 33 3 H. 6. fo 35. 5. E. 4 f. 71. 49 li. Ass. pag. 17 22. H. 6. fo 31 13. H. 8. fo 14 7 E. 4 f. 29 9 E. 4 f. ●0 And altovvghe the crovvne hathe alvvayes gone accordinge to the cōmon covvrse of a discente Yet dothe yt not properlie descēde but succede And that ys the reason of the lavve that althovvghe the Kinge be more fauoured in all his doinges then any cōmon person shal be Yet can not the Kinge by lavve auoide his grauntes and lettres patentes by reason of his nonage as other Infantes maye do but shall alvvayes be saide to be of full age in respecte of his * The kīge ys alvayes at full age in respecte of hys crovvne crowne eauen as a person vicare or deane or any other person incorporate shal be Whiche can not by any meanes be sayed in lawe to be vvith in age in respecte of theire corporations Altowghe the corporation be but one yeare olde Besides that the kinge cā not by the lawe avoide the lettres patentes made by any vsurper of the crowne vnlesse yt be by acte of parliamente no more then other persons incorporate shall auoide the grauntes made by one that vvas before vvrongfullie in theire places and roumes Whereas in discentes of inheritances the lawe ys otherwise For there the heire maye auoide all estates made by the dissesor or abatour or anye other person vvhose estate ys by lavve defeated Wherby yt dothe plainlie appeare that the kinge ys incorporate vnto the crowne and hathe the same properlie by succession and not by discente only And that ys likewise an other reason to proue that the kinge and the crowne can neither be saide to be with in the wordes nor yet with in the meanīge of the saide generall rule or maxime The thirde and moste principall cause of all ys for that the saide statute vvhere vpon the saide supposed rule or maxime ys gathered the children discendants and discended of the bloude royall by the vvordes of Enfāts du Roy The Kings childrē are expresselye excepted frō the surmised maxime are expresseli excepted owte of the saide supposed rule or maxime Which wordes the aduersaries do muche abuse ī restrainīge cōstruinge thē to extende but to the first degree onlie whereas the same wordes may verye vvell beare a more large and ample interpretation And that for three causes and considerations Firste by the ciuill lavve this vvorde Liberi vvhiche the vvordes Enfants beinge the vsuall and originall vvordes of the statute vvritten in the Frenche tongue counteruaileth dothe comprehende by proper and peculier signification not only the children of the first degree L. liberorū de verborum signific ff but other discendants also In the lavve sayenge that he vvho ys manumissed or made free shall not commence any action againste the children of the patrone or manumissor vvithovvte licence L. sed si ff de in Ius vocādo instit de heredibus ab intest not only the first degree but the other also ys conteined The like ys vvhen the lavve of the twelve tables sayethe The firste place and roume of