one rule as a general Maxime is obiected against her And yet the same rule is so vntruely set forth that I can not wel agree that it is any rule or Maxime of the cōmon law of this Realm of Englād Your pretēsed Maxime is whosoeuer is born out of the realm of Englād and of father and mother not being vnder the obediēce of the King of England cannot be capable to inherite any thing in England Which rule is nothing true but altogether false For euery stranger and Alien is hable to purchace the inheritance of landes within this Realme as it may appeare in 7. 9. of king Edward the fourth and also in 11. 14. of king Hērie the fourth And although the same purchace is of some men accounted to be to the vse of the King yet vntil such time as the king be intitled therevnto by matter of Record the inheritance remaineth in the Alien by the opinion of al men And so is a very Alien capable of inheritance within this Realme And then it must nedes fal out very plainly that your general Maxime where vpon you haue talked and bragged so muche is now become no rule of the common law of this Realme And if it be so then haue you vttered very many wordes to smal purpose But yet let vs see fartther whether there be any rule or Maxime in the cōmon Law that may seeme any thing like to that rule wherevppon any matter may be gathered against the Title of the said Marie Queene of Scotland There is one rule of the cōmon Lawe in wordes somewhat like vnto that whiche hath ben alleaged by the Aduersaries Which rule is set forth and declared by a statute made anno 25. of King Edward the third Which statute reciting the doubt that then was whether infants borne out of the allegeance of England should be hable to demaund any heritage within the same allegeance or no it was by the same statute ordeined that al infantes inheritours which after that time should be borne out of the allegeance of the King whose father and mother at the time of their birth were of the feaith and allegeāce of the King of England should haue and enioy the same benefittes and aduantages to haue and carie heritage within the said allegeance as other heires should Whervpon it is to be gathered by dew and iust construction of the statute and hath bene heretofore cōmonly taken that the cōmon law alwaies was and yet is that no person borne out of the allegeāce of the King of England whose father and mother were not of the same allegeāce should be able to haue or demaund any heritage within the same allegeance as heire to any person Which rule I take to be the same supposed Maxime which the Aduersaries do meane But to stretch it generally to al inheritances as the Aduersaries woulde seeme to do by any reasonable meanes can not be For as I haue said before euery strāger and Alien borne may haue and take inheritance as a purchaser And if an Alien do marie a woman inheritable the inheritance therby is both in the Alien and also in his wife and the Alien thereby a purchaser Noman doubteth but that a Denizon may purchase landes to his owne vse but to inherit landes as heire to any person within the allegeāce of England he can not by any meanes So that it seemeth very plaine that the said rule bindeth also Denyzōs and doth only extend to Descētes of inheritance and not to the hauing of any landes by purchase Now wil we then consider whether this rule by any reasonable construction can extende vnto the Lady Marie the Queene of Scotland for and cōcerning her Title to the Croune of England It hath bene said by the Aduersaries that she was borne in Scotland which realm is out of the allegeāce of England her father and mother not being of the same allegeance And therfore by the said rule she is not inheritable to the Croune of this Realm Although I might at the beginning very wel and orderly deny the consequent of your argumēt yet for this time we wil first examine the Antecedent whether it be true or no and then consider vpon the consequent That the Queene of Scotland was borne in Scotlād it must nedes be graūted but that Scotland is out of the allegeāce of Englād though the said Quene and al her subiects of Scotland wil stourly affirme the same yet ther is a great nūber of men in Eng and both lerned and others that be not of that opiniō being lead and persuaded therto by diuers histories Registers Recordes and Instruments of Homage remaining in the treasurie of this Realm wherin is metioned that the Kings of Scotland haue acknowledged the King of Englād to be the superiour Lord ouer the Realme of Scotland and haue done homage and fealtie for the same Which thing being true notwithstanding it be cōmonly denied by al Scotsmen then by the lawes of this realme Scotlād must nedes be accōpted to be within the allegeance of Englād And although sins the time of King Henry the sixt none of the Kinges of Scotlande haue done the said seruice vnto the Kinges of England yet that is no reason in our lawe to say that therefore the Realme of Scotland at the time of the birth of the said Ladie Marie Queene of Scotlande being in the thirtie and fourth yeare of the raigne of our late Souereigne Lorde King Henrie the eight was out of the allegeance of the kinges of England For the law of this Realm is very plain that though the Tenant do not his seruice vnto the Lorde yet hath not the Lord thereby lost his Seignorie For the lande still remaineth within his Fee and Seignorie that notwithstanding But peraduenture some wil obiecte and say that by that reason France should likewise be said to be within the allegeance of England forasmuch as the possession of the Croune of France hath bene within a litle more then the space of one hundred yeares now last past laufully vested in the kinges of Englād whose right and title stil remaineth To that obiectiō it may be answered that there is a great difference betwene the right and title which the Kings of Englād claime to the Realme of Fraunce and the right and title which they claime to the Realme of Scotlande Although it be true that the Kinges of Englande haue bene lawfully possessed of the Croune of France yet during such time as they by vsurpation of others are dispossessed of the saide Realme of France the same Realme by no meanes can be said to be within their allegeance especially considering how that syns the time of vsurpation the people of France haue wholy forsaken their allegeance and subiection which they did owe vnto the Kings of Englande and haue geuen and submitted them selues vnder the obedience and allegeance of the vsurpers But as for the Realme of Scotlande it is otherwise For
only Of the like weight is his other coÌ„sideration imaginiÌ„g and surmising this statute to be made bicause the King had so many occasioÌ„s to be so oft ouer the sea with his spouse the Queene As though diuers Kings before him vsed not often to passe ouer the seas As though this were a personal statute made of special purpose and not to be takeÌ„ as a declaratioÌ„ of the coÌ„mon law Which to say is most directly repugnant and contrary to the letter of the said statute Or as though his children also did not very often repaire to outward Countries as Iohn of Gaunt Duke of Lancaster that maried Peters the King of Castiles eldest daughter by whose right he claimed the Croune of Castile as his brother EdmuÌ„d Erle of Cambridge that maried the yongest daughter as Lionell Duke of Claraunce that maried at Milaine ViolaÌ„t daughter and heir to Galeatius Duke of Milan But especially Prince Edwarde whiche moste victoriously toke in battaile Iohn the French King and brought him into England his prisoner to the great triumphe and reioysing of the Realme whose eldest sonne Edward that died in short time after was borne beyond the seas in Gascome and his other sonne Richard that succeded his grandfather was borne at Burdeaux as these noble King Edwardes sonnes maried with forainers so did they geue out their daughters in mariage to foraine Princes as the Duke of Lancaster his daughter Philippe to the king of Portingale and his daughter Catherin to the King of Spaine and his Neece Iohan daughter to his sonne Earle of Somerset was ioyned in mariage to the King of Scottes Iohan daughter to his brother Thomas of Wodstocke Duke of Gloucester was Queene of Spaine and his other daughter Marie Duchesse of Britannie Now by this mans interpretation none of the issue of al these noble Women could haue enioyed the Croune of England when it had fallen to them though they had bene of the neerest roial blood after the death of their Auncestours Which surely had bene against the auncient presidentes and examples that we haue declared and against the common Lawe the whiche muste not be thought by this Statute any thing taken away but only declared and against al good reason also For as we would haue thought this Realme greatly iniured if it had ben defrauded of Spaine or any of the foresaid couÌ„treies being deuolued to the same by the foresaid Mariages as we thincke our self at this day iniured for the withholding of France so the issue of the foresaide noble womeÌ„ might and would haue thought them hardly and iniuriously handled yf any such case had happened Neither suche friuolous interpretation and gloses as this man nowe frameth and maketh vppon the statute woulde then haue serued nor nowe wil serue But of all other his friuolous and folish ghessing vpon the clause of the statute for Infantes de Roy there is one most fond of al. For he would make vs beleue such is the mans skil that this statute touching Infantes de Roy was made for the great doubte more in them then in other personnes touching their inheritance to their Auncestours For being then a Maxime saieth he in the lawe that none could inherite to his Auncestours being not of father and mother vnder the obedience of the King seing the King him selfe could not be vnder obedience it plainely seemed that the Kinges children were of farre worse condition then others and quite excluded And therefore he saith that this statute was not to geue them any other priuilege but to make them equall with other And that therefore this statute touching the Kinges children is rather in the superficial parte of the worde then in effecte Nowe among other thinges he saieth as we haue shewed before that this word Infantes de Roy in this statute mentioned must be taken for the children of the first degree whiche he seemeth to proue by a note taken out of M. Rastal But to this we answer that this maÌ„ swetely dreamed when he imagined this fonde and fantasticall exposition And that he shewed him selfe a very infante in law and reason For this was no Maxime or at lest not so certaine before the making of this statute whiche geueth no new right to the Kinges children nor answereth any doubt touching them and their inheritance but saith that the law of the Croune of England is and alwaies hath bene which lawe saith the King say the Lordes say the Commons we allowe and affirme for euer that the Kinges children shal be hable to inherite the Landes of their Auncesters whereâ—oeuer they be borne Al the doubt was for other persons as appeareth euideÌ„tly by the tenour of the statute whether by the coÌ„mon law they being borne out of the allegeance were heritable to their Auncestours And it appeareth that th' Aduersary is driueÌ„ to the hard wal when he is faine to catch hold vpon a selie poore marginal note of M. Rastal of the Kinges childreÌ„ and not of the Kings childrens children Which yet nothing at al serueth his purpose touching this statute But he or the Printer or who so euer he be as he draweth out of the text many other notes of the matter therin coÌ„prised so vpoÌ„ these FreÌ„ch wordes Les enfants de Roy he noteth in the MargeÌ„t The Kings childreÌ„ but how far that word reacheth he saieth neither more nor lesse Neither it is any thing preiudicial to the said Queenes right or Title whether the said wordes Infants ought to be takeÌ„ strictly for the first degree or farther enlarged For if this statute toucheth only the succession of the Kings children to their Auncestours for other inheritaÌ„ce and not for the Cround as most men take it and as it may be as we haue said very wel takeÌ„ and allowed then doth this supposed Maxime of forain borne that seemeth to be gathered out of this statute nothing anoy or hinder the Queene of Scotlandes Title to the Croune as not therto apperteining On the other side if by the inheritance of the kings childreÌ„ the Croune also is meant yet neither may we enforce the rule of foraine borne vpoÌ„ the kings children which are by theâ—presse wordes of the statute excepted neither enforce the word Inâ—â—â—s to the first degree only for such reasons presidents and examples and other prouffes largely by vs before set forth to the coÌ„trarie seing that the right of the Croune falling vpoÌ„ them they may wel be called the kings ChildreÌ„ or at the lest the childreÌ„ of the Croune Ther is also one other cause why though this statute reach to the Croune and may and ought to be expouÌ„ded of the same the said Queene is out of the reach and coÌ„passe of the said statute For the said statute can not be vnderstanded of any persons borne in Scotlande or Wales but onely of persons borne beyond the sea out of the allegeance of the King of England that is to wrtte France Flandres and such like For England
the establishing of the succession and prouiding that the Realme should not be left void of a Gouernour And therefore we must not subuert the statute in cauilling for the defect of the Kings hand forasmuch as the Parlament might haue had authorised his consent only without any hand writing Which as I doe not denie so in these great affaires and so ample a commission in suche absolute authoritie geuen to him it was prouidently and necessarily foresene to binde the Acte to the Kings owne hand for auoyding al sinister and euil dealing the whiche the Aduersaries would haue vs in no case to misdoubt or mistrust in this Wil. Whereas the notoriousnes of the fact and the lamētable euent of things do openly declare the same and pitifully crieth out against it Neither wil we graunt to them that the minde and purpose of the Parlament is satisfied for such causes as we haue and shall hereafter more largely declare And if it were otherwise true yet doth this only defect of the Kinges hand breake and infringe the whole Acte For this is a statute correctorie and derogatorie to the common course of the Lawe as cutting away the successiō of the lawful and true inheritours It is also as appeareth by the tenour of the same a most greuouse penal Law and therfore we may not shift or alter the wordes of the law Neither may we supply the māner and doing of the Acte prescribed by any other Acte equiualent So that albe it in some other thing the Stampe or the Kinges certaine and knowen consente may counterpaise his hande yet as the case standeth here it wil not serue the turne by reason there is a precise order and forme prescribed and appointed Wherfore if by a statute of a Citie there be certaine persons appointed to do a certaine acte and the whole people do the same acte in the presence of the the said persons the acte by the iudgement of learned Ciuilians is vitious and of no valewe yea though the reason of the lawe cease yet must the forme be obserued For it is a rule and a Maxime that wher the law appointeth and prescribeth a certaine plat forme whereby the Acte must be bound and tyed in that case though the reason of the law ceasse yet is the acte voyd and naught And whereas the Aduersaries obiecte against this rule the Parlamentes made by Queene Marie without the vsual style called and somoned this obiection may sone be answered For it may sone appeare to all them that reade and pervse the said statute of Anno 35. Henrici octaui conteining the said style that by any especial wordes therin mentioned it is not there limited and appointed that the forme of the style therin sette foorth should be obserued in euery Writ And therfore not to be cōpared vnto the said statutes of 28. and 35. Henrici octaui wherein by special wordes one expresse forme and order for the limiting of the succession of the Croune by the King is declared and set forth Bysides that the said Writtes being made both according to the auncient forme of the Regester and also by expresse commaundement of the Prince vtterly refusing the said style could neither be derogatorie to the said Queenes Maiestie and her Croune nor meaning of the said statute Cōcerning the said style and for a final and sul answere vnto this matter it is to be noted that the Writts being th'Actes of the Court though they wante the prescript fourme set foorth either by the common lawe or statute yet are not they nor the iudgements subsequēt thervpon abated or voide but only abatable and voidable by exception of the partie by iudgemente of the Courte For if the partie without any exception doo admitte the forme of the said Writte and pleade vnto the matter whervpon the Court doth procede then doth the Writte and the iudgement therevpon following remaine good and effectual in lawe And therefore admitting that the said statute of 35. H. 8. had by special wordes appointed the said style to be put in euery Writte and that for that cause the said Writtes of Somons were vitious wanting their prescript forme yet when the parties vnto the said Writtes had admitted them for good both by their electiō and also by their appearence vpon the same the law doth admit the said Writtes and al actes subsequent vpon the same to be good and effectual And yet this maketh no prouffe that therfore the said supposed Wil wanting the prescript order and fourme should likewise be good and effectual in law For as touching specialties estates and cōueiances or any other external acte to be done or made by any person whose forme and order is prescribed either by the cōmon law or by statute if they want any part of their prescript forme they are accōpted in law to be of no validitie or effect As for example the law doth appoint euery Specialtie or Deede to be made either in the first person or in the third person Therefore if part of a Deede be made in the first person and the residue in the thirde person that Dede is not effectual but void in the law Bysides that the law hath appointed that in euery Deede mention should be made that the partie hath putto his Seale to the same If therefore any Deede doth want that special clause and mention although the partie in deede hath put his Seale vnto the same yet is that Dede or Specialtie void in law So likewise the law geueth authoritie to the Lorde to distraine vpon the land holden of him for his rentes and seruices dewe for the same And farther doth appoint to carie or driue the same distresse vnto the pound there to remaine as a gage in law for his said rents and seruices If the Lord shal either distraine his Tenāt out of his Fee or Seignory or if he shal labour and occupie the Chatles distrained the distresse so takē by him is insurious and wrongful in law forasmuch as he hath not done according to the prescribed order of the law The statute made An. 32. H. 8. geueth authoritie vnto Tenant in taile and to others being seased of land in the right of their wiues or Churches to make leases of the same Wherin also a prescript order and forme for the same is set foorth If any of the said persons shal make any Lease wherin he doth not obserue the same prescribed order in all pointes the same Lease is not warranted in any point by the said statute Likewise the statute made in Anno 27. Henrici octau◠of Bargaines and sales of land appointeth a forme and order for the same that they must be by writing indēted sealed and enrolled within six monethes next after the dates of the same writings If any bargaine and sale of land be made wherein any of the thinges appointed by the said statute are omitted the same is vitious and voide in the lawe So
those bookes And yet ye are not ashamed to note them as sufficient authorities for the maintenance of your euil purpose and intēt But as ye would seeme to vnderstand that your rule of dishabilitie is a general Maxime of the law so me thinketh ye should not be ignorant that it is also as general yea a more general rule and Maxime of the lawe that no Maxime or rule of the lawe can extende to binde the King or the Croune vnlesse the same be specially mentioned therein as may appeare by diuerse principles and rules of the lawe which be as general as is your sayd supposed Maxime and yet neither the King nor the Croune is by any of them bound As for example it is very plaine that the rule of the Tenante by the Curtesie is general without any exception at al. And yet the same bindeth not the Croune neither doth extende to geue any benefitte to him that shal marie the Queene of England As it was plainely agreed by all the lawiers of this Realme when King Philippe was married vnto Queene Marie although for the more suertie and plaine declaration of the intentes of King Philippe and Queene Marie and of al the states of this realme it was enacted that King Philip should not claime any Tytle to be Tenaunt by the Curtesie It is also a general rule that if a man dye seased of any landes in Fee simple without issue male hauing diuerse daughters the lande shall be equally diuided amonge the daughters Which rule the learned men in the lawes of this Realme agreed vpō in the lyfe of the late noble Prince Edwarde and also euery reasonable mā knoweth by vsage to take no place in the succession of the Croune For there the eldest enioyeth al as though she were issue male Likewise it is a general rule that the wife after the decease of her husband shal be endowed and haue the thirde parte of the best possessions of her husband And yet it is very clere that any Queene shal not haue the thirde parte of the landes belonging to the Croune as appeareth in 5. E. 3. Tit. praerogat 21. E. 3.9 28. H. 6. and diuers other bookes Bysides that the rule of Possessio fratris beinge generall neither hath bene or can be stretched to the inheritance of the Croune For the brother of the half blood shal succede and not the sister of the whole blood as may appeare by Iustice Moile as may be proued by King Etheldred brother and successor to King Edward the Martyr and by King Edwarde the Confessour brother to King Edmunde and diuers other who succeded in the Croune of England being but of the halfe blood As was also the late Queene Marie and is at this presente her sister who both in al recordes of our lawe wherein their seueral rightes and titles to the Croune are pleaded as by daily experience aswell in the Exchequer as also in all other Courtes is manifest doe make their conueiance as heires in blood th' one to the other which if they were cōmon or priuate persons they could not be allowed in lawe they as is wel knowen being of the halfe blood one to the other that is to wit begotten of one father but borne of sundrie mothers It is also a general rule in the lawe that the executour shal haue the good and Chattles of the testatour and not the heire And yet is it otherwise in the case of the Croune For there the successour shal haue them and not the executour as appeareth in 7. H. 4. by Gascoine It is likewise a general rule that a man attainted of felony or treason his heire through the corruption of blood without pardon and restitution of blood is vnable to take any landes by discente Whiche rule although it be general yet it extendeth not to the discente or succession of the Croune although the same Attainder were by acte of Parlamente as may appeare by the Attainder of Richarde Duke of Yorke and King Edward his son and also of King Henry the seuenth who were attainted by acte of Parlament and neuer restored and yet no dishabilitie thereby vnto Edwarde the fourth nor vnto Henry the seuenth to receaue the Croune by lawful succession But to this you would seeme to answere in your said booke saying that Hēry the seuenth notwithstanding his Attainder came to the Croune as caste vpon him by the order of the lawe forasmuch that when the Croune was caste vpon him that dishabilitie ceassed Wherein ye confesse directly that the Attainder is no dishabilitie at all to the succession of the Croune For although no dishabilitie can be alleaged in him that hath the Croune in possession yet if there were any dishabilitie in him before to receue and take the same by lawful succession then must ye say that he was not lawful King but an vsurper And therfore in confessing Henry the seuenth to be a lawful King and that the Croune was lawfully caste vppon him ye confesse directly thereby that before he was Kinge in possession there was no dishabilitie in him to take the Croune by lawful successiō his said Attainder notwithstanding which is as much as I would wish you to graunt But in conclusion vnderstanding your self that this your reason can not mainteine your intente you goe about an other way to helpe your self making a difference in the lawe betwene the case of Attainder and the case of foraine byrth out of the Kinges allogeāce saying that in the case of the Attainder neessitie doth enforce the succession of the Croune vpon the partie attaynted For otherwise ye say the Croune shall not descende to any But vpon the birth out of the Kinges allegance ye say it is otherwise And for proufe therof ye put a case of I.S. being seased of landes and hauing issue A. and B. A. is attainted in the life of I.S. his father and after I.S. dieth A. liuing vnrestored Nowe the lande shal not descende either to A. or B. but shal goe to the Lorde of the Fee by way of eschete Otherwise it had ben ye say if A. had ben borne beyond the sea I. S. breaking his allegeāce to the King and after I. S. cometh agayne into the Realme and hath issue B. and dieth for now ye say B. shal inherite his fathers Landes Yf the Croune had bene holden of any person to whome it might haue escheted as in your case of I.S. the lande did then peraduenture there had bene some affinitie betwene your said case and the case of the Croune But there is no such matter Bysides that ye muste consider that the King cometh to the Croune not onely by descente but also and chiefly by succession as vnto a corporation And therefore ye might easely haue sene a difference in your cases betwene the Kinges Maiestie and I.S. a subiecte And also betwene landes holden of a Lorde aboue and the Croune holden of no earthly Lorde but
the Title whiche the Kinges of England haue claimed vnto the Realme of Scotland is not in the possession of the lande and Croune of Scotlande but onely vnto the seruice of homage and fealtie for the same And although the Kinges of Scotland sith the time of King Henry the eight haue intermitted to doe the said homage and fealtie vnto the Kinges of Englande yet for al that the Kinges of Scotland can not by any reason or lawe be called vsurpers And thus may ye see gentle Reader by the opinion of al indifferente men not lead by affection that the Realme of Scotlande hath bene and is yet within the allegeance and dominion of England And so is the Antecedent or first proposition false And yet that maketh no proufe that the Realme of France likewise should nowe be said to be within the allegeance of the Kings of England by reason of the manifest and apparent difference before shewed But what if your Antecedent were true and that we did agree both with the said Queene of Scotland and her subiectes and also with you that Scotland were out of the allegeance of England Yet it is very plaine that your consequent and conclusion can not by any meanes be true And that principally for three causes whereof one is for that neither the King not the Croune not being specially mētioned in the said rule or pretended Maxime can be intended to be within the meaning of the same Maxime as we haue before sufficiently proued by a great number of other suche like generall rules and Maximes of the lawes An other cause is for that the Croune can not be taken to be within the woordes of the said supposed Maxime and that for twoo respectes one is bycause the rule doth only dishable Aliens to demaunde any heritage within the allegeance of England Whiche rule can not be stretched to the demaunde of the Croune of Englād which is not with in the allegeance of England but is the very allegeance it selfe As for a like example it is true that al the landes within the Kinges dominion are holdē of the King either mediatly or immediately and yet it is not true that the Croune by whiche onely the King hath his Dominion can be said to be holdē of the King. For without the Croune there can be neither King nor allegeance And so long as the Croune resteth onely in demaund not being vested in any person ther is no allegeāce at al. So that the Croune can not be said by any meanes to be within the allegeance of England and therfore not within the wordes of the said rule or Maime The Title of the Croune is also out of the wordes and meaning of the same rule in an other respect and that is bycanse that rule doth only dishable an Alien to demaūd landes by descent as heire For it doth not extende vnto landes purchased by an Alien as we haue before sufficiently proued And then can not that rule extende vnto the Croune being a thing incorporate the right wherof doth not descend according to the common course of priuate inheritance but goeth by successiō as other corporatiōs do No man doubteth but that a Prior Alien being no denizon might alwaies in time of peace demaund land in the right of his corporatiō And so likewise a Deane or a Person being Aliens and no deniznos might demaund lande in respecte of their corporations not withstāding the said supposed rule or Maxime as may appeare by diuerse booke cases as also by the statute made in the time of King Richard the second And although the Croune hath alwaies gone according to the common course of a Descent yet doth it not properly descende but succede And that is the reason of the lawe that although the Kinge be more fauoured in all his doinges then any common person shal be yet can not the King by lawe auoide his grauntes and Letters Patentes by reason of his Nonage as other infantes may doe but shal alwaies be said to be of ful age in respect of his Croune euen as a Person Vicare or Deane or any other person incorporate shal be Whiche can not by any meanes be said in lawe to be within age in respect of their corporations although the corporation be but one yeare olde Bysides that the King can not by the law auoide the Letters Patentes made by any vsurper of the Croune vnlesse it be by act of Parlament no more then other persons incorporate shal auoide the grauntes made by one that was before wrongfully in their places and romes whereas in Descentes of inheritance the lawe is otherwise For there the heire may auoide al estates made by the disseafour or abatour or any other person whose estate is by lawe defeated Whereby it doth plainely appeare that the King is incorporate vnto the Croune and hath the same properly by succession and not by Descent onely And that is likewise an other reason to proue that the King and the Croune can neither be saide to be within the wordes nor yet with in the meaning of the said general rule or Maxime The third and most prncipall cause of all is for that in the said statute whervpon the said supposed rule or Maxime is gathered the children descendantes and descended of the blood royal by the wordes of Infantes de Roy are expresly excepted out of the said supposed rule or Maxime Whiche wordes the Aduersaries do much abuse in restrainīg and construing them to extende but to the first degree only whereas the same wordes may very wel beare a more large and ample interpretation And that for three causes and considerations First by the Ciuil lawe this word Liberi which the worde Infantes being the vsuall and original worde of the statute written in the Frenche tongue counteruaileth doth comprehende by proper and peculier signification not only the childrē of the first degree but other Descendants also in the law saying That he who is manumissed or made free shal not commence any Action against the children of the Patrone or manumissour without licence not onely the first degree but the other also is conteined The like is when the lawe of the twelue Tables saith The first place and roome of succession after the death of the parentes that die intestate is due to the children which successiō apperteineth as wel to degrees remoued as to the firste Yea in al causes fauourable as ours is this worde son Filius cōteineth the nephew though not by the propertie of the voice or speache yet by interpretation admittable in al such thinges as the law disposeth of As touching this worde Infantes in Frēch We say that it reacheth to other Descendāts as wel as the first degree Wherein I do referre me to suche as be expert in the said tongue We haue no one worde for the barenes of our English tōgue to coūterpaise the said French word Infantes or the Latin word
Liberi Therefore doo we supply it as wel as we may by this worde children The Spaniardes also vse this worde Infantes in this ample sorte when they call the nexte heire to the heire apparēt Infant of Spaine euen as the late deceased Lorde Charles of Austrich was called his father and grandfather then liuing Yf then the original word of the statute declaring the said rule may naturally and properly apperteine to al the Descendants why should we straine and binde it to the first degree only otherwise then the nature of the worde or reason wil beare For I suppose verely that it wil be very harde for the Aduersarie to geue any good and substantial reason why to make a diuersitie in the cases But touching the contrarie there are good and probable consideratiōs which shall serue vs for the seconde cause As for that the grādfathers cal their nephewes as by a more pleasant plausible name not only their children but their sonnes also and for that the sonne being deceased the grādfather suruiuing not only the grādfathers affection but also such right title and interest as the sonne hath by the lawe and by proximitie of blood growe and drawe al to the nephew who representeth and supplieth the fathers place the father and the sonne being compted in person and in flesh in maner but as one Why shal then the bare and naked consideration of the external and accidental place of the birth only seuer and sunder suche an entier inwarde and natural coniunction Adde therevnto the many and great absurdities that may hereof spring and ensue Diuerse of the Kinges of this Realme as wel before the time of King Edwarde the third in whose time this statute was made as after him gaue their daughters out to foraine and sometimes to meane Princes in mariage Which they would neuer so often times haue done if they had thought that whyle they wente about to set forth and aduance their issue their doinges should haue tended to the disheriting of them from so great large and noble a Realme as this is which might haue chanced if the daughter hauing a sonne or daughter had died her father liuing For there should this supposed Maxime haue ben a barre to the children to succede their grandfather This absurditie would haue bene more notable if it had chanced about the time of King Henry the secōd or this king Edward or king Henry the firste and sixte when the possessions of the Croune of this Realme were so amply enlarged in other Countries beyond the seas And yet neuer so notable as it might haue bene hereafter in our fresh memorie and remēbrance if any such thing had chanced as by possibilitie it might haue chanced by the late mariage of King Philippe and Queene Marie For admitting their daughter maried to a foraine Prince should haue dyed before them she leauing a sonne suruiuing his father and grandmother they hauing none other issue so nigh in degree then would this late framed Maxime haue excluded the same sonne lamētably and vnnaturally from the succession of the Croune of Englande and also the same Croune from the inheritance of the Realmes of Spain of both Sicilies with their appurtenāces of the Dukedō of Milan and other landes and Dominiōs in Lumbardy and Italie as also from the Dukedomes of Brabant Luxēburg Geldres Zutphan Burgundie Friseland from the Countreies of Flandres Artois Holland Zealād and Namurs and from the new found lands parcel of the said Kingdome of Spaine* Which are vnlesse I be deceued more ample by dubble or treble then al the Countreies now rehearsed Al the which Countreies by the foresaid Mariage should haue bene by al right deuolued to the said sonne if any such child had bene borne If either the same by the force of this iolye newe found Maxime had bene excluded from the Croune of England or the saide Croune from the inheritance of the foresaid Countreies were there any reason to be yelded for the maintenance of this supposed rule or Maxime in that case Or might there possibly rise any commodity to the Realme by obseruing therein this rigorous pretensed rule that should by one hundred part counteruaile this importable losse and spoile of the Croune and of the lawful inheritour of the same But perchance for the auoiding of this exception limited vnto the blood roial some wil say that the same was but a priuilege graunted to the Kinges children not in respect of the succession of the Croune but of other landes descending to them from their Auncestours Whiche although we might very wel admit and allow yet can it not be denied but that the same priuilege was graūted vnto the Kinges children and other descendantes of the Blood roial by reason of the dignity and worthines of the Croune which the King their father did enioy and the great reuerence which the law geueth of dewtie therevnto And therefore if ye would go about to restraine and withdraw from the Croune that priuilege whiche the lawe geueth to the Kinges children for the Crounes sake ye should doo therein contrarie to al reason and against the rules of the Arte of Reasoning which saith that Propter quod vnumquodque illud magis Byside that I would faine knowe by what reason might a man saye that they of the Kinges Bloodde borne out of the allegeaunce of Englande maye inherite landes within this Realme as heires vnto their Ancestours not being able to inherite the Croune Truly in mine opinion it were against al reason But on the contrarie side the very force of reason muste driue vs to graunt the like Yea more great and ample priuilege and benefit of the law in the succession of the Croune For the Roial blood where so euer it be found wil be taken as a pretious and singuler Iewel and wil carie with it his worthie estimation and honour with the people and where it is dew his right withal By the Ciuil law the right of the inheritance of priuate persons is hemmed and inched within the bandes of the tenth degre The Blood roial runneth a farther race and so farre as it may be found wherewith the great and mightie Conquerors are glad and faine to ioine withal euer fearing the weaknes of their blooddie sworde in respect of the greate force and strength of the same For this cause was Henrie the firste called for his learning and wisedome Beauclerke glad to consociate and couple him self with the auncient Roial blood of the Saxons which cōtinuing in the Princely Successiō from worthie king Alured was cutte of by the death of the good king Edward and by the mariyng of Mathildis being in the fourth degree in lineal descent to the said king Edward was reuiued and revnited From this Edward the Queene of Scotlād as we haue before shewed taketh her noble auncieht Petigrue These then and diuers other reasons and causes mo may be alleaged for the waying and setting foorth of the true meaning
the death of the Lorde Darley before the Counsaile of EnglaÌ„d The causes vvhy the Earle Murray vvent about asvvel to make avvay the L. Darley as to depose the Queene The Earle Murray de clared the day before that the L Darley should be slaine Diuers assembles of the Earle Murray aÌ„d his adherents to consult vpon the slaughter of the L. Darley Indentures made and subscribed for the execution of the said purpose Diuers excuted in Scotland for the said murther vvhereof none could charge the Queene The Q. in a maÌ„ner miraculously deliuered out of Lochleuen prison The Commissioners appointed in EnglaÌ„d to heare the Quene of ScotlaÌ„d her maters vvel liked of her faid innocency and of her title to the succession of the Cioune An exhortation to the Earles Murray aÌ„d Murton aÌ„d others to reconcile theÌ„selues to the Q. The Q. of ScotlaÌ„d ful of mercy The ende of Rebels euer vnhappy Other Princes vvil not suffer the Quene of Scotland to be iniuried by her subiectes Man only hath the pierogatiue of vvit and reason among al earthlye creatures Men are most bouÌ„d to the preseruation of their CouÌ„trey A great coÌ„moditie to the coÌ„moÌ„ vvealth to knovv the heire appa rente Why all the vvorld almost doth enbrace succession of Princes rather then election Flores histor anno 1057. Richardus Canonicus sanctae Trinit Lond. Flor. histo anno 1190. Polid li. 14 Polid li. 20 The Quene of Scottes is right heire apparent to the Croune of Englande Inst de iust iure §. fin The common lavve of this Realme is rather grounded vpon a general custom then any lavve vvritten In Prologo suo eiusdem li. fo 1. et 2. De dict Ra nulpho GlaÌ„uilla uide Giraldum Cambren in topogra de Wallia Fortescue de lau Leg. Angl. c. 17. â— E. 4.19.33 H. 6.51 Pinsons printe Inst de iure natura geÌ„t ciuil §. ex non script 25. E. 3. The adueâ— sacies case pettineth to subiects only No Maxime of the lavve bindeth the Croune vnles the Croune specially be named Of the Tenante by the curtesy Nor that the landes shal be diuided among the daughters Not the vvife shall haue the third part 5. E. 3. Tit. praerog 21. E. 3.9 28. H. 6. Nor the rule oâ— Possessio fratris c. Nor that the executour shall haue the goods and Chattles of the resâ—atour 7. H. 4. sol 42. Nor that a traitour i vnable to take landes by discente and vvithout pardoÌ„ An ansvvere to the Aduersary making a difference be tvvene Attainder aÌ„d the birth out of the allegeaÌ„ce 22. H. 6. fol. 43. The suppo sed Maxime of the Aduersaries touching not Kinges borne beyond the sea as appeareth by King Stephen and King H. 2. The Aduersaries obiection touching King H. 2. auoided As touching Arthur King Richardes nephevve Vt autem pax ista summa dilectio taÌ„ multiplici quaÌ„ arctiori uin culo connectatur praedictis curiae uestrae Magnatibus id ex parte uâ— stra tractaÌ„tibus Domino disponente coÌ„diximus inter Arthurum egregiuÌ„ Dâ— cem BritaÌ„niae nepoteÌ„ nostrum haeredem si forte sine prole obirâ— nos contigâ— rit filiaÌ„ uestraÌ„ matrimonium contrahendum c. In tractatu paciâ— inter Richa 1. TancreduÌ„ Regem Si ciliae Vide Reg. Houeden RicharduÌ„ Canonicum S. Trinitatis Londin A false Maxime set forth by the Aduersarie 7. E. 4. fo 28.9 E. 4. fo 5.11 H. 4 fo 25.14 H. 4. fo 10. the statute of Edvv. 3. An. 25. to â— cheth inâ—e ritaÌ„ce not purchase â— H. 4. fo 25. Scotland is vvithin the allegeance of EnglaÌ„d The Lorde loseth not his seignorie though the tenaÌ„te doth not his seruice The causes vvhy the Croune caÌ„ not be coÌ„prised vvithin the pretended Maxime Without the croune there can neither be King nor allegeance 40. E. 3. fol. 10. 13. E. 3. Tit. Bref 264.16 E. 3. iurans desait 166.17 E. 3. tit scire fac 7. A Deane a Person a Priour being an Alien may demande lande in the right of his corporation An 3. R. 2.6 C. 3. fo 21. tit droit 26. lib. Ass p. 54.12 li. Ass tit enfant 13. H â— fol. 14.7 E. 4. fol. 10.16 E. 3. iurans defait 9. H. 6. fol. 33.35 H. 6. so 35.5 E. 4 fol. 70.49 li. Ass A. 8â— 22. H. 6. fo 31.13 H. â— so 14. The King is alvvaies at ful age in respecte of his Croune The Kings children are expresly excepted from the surmised Maxime â— LiberoruÌ„ ff de uerbo ruÌ„ signific L. Sed si de in ius uo caÌ„do instit de haere ab intest L. Lucius ff de baered instit L. Iusta L. Nâ—toruÌ„ L. Liberorum de uerb signif L. 2. § sâ— mater ad S. C. Tertul L. Filius de S. C. Maced L. Senatus de ritu nugâ— L quod sâ— nepotes ff test cuÌ„ notatis ibid. Infantes in Frenche couÌ„teruaileth this vvorde liberi in lat The grand fathers cal their nephues sonnes L. Gallâ—◠§ InstitueÌ„s ff de liber Eâ— post l. ff C. de impub. Alâ—is substan c 1. q. 4 Father and son coÌ„pted in person aÌ„d flesh in maner one Great absurditie in excluding the true aÌ„d right successour for the place of his birth only An euasion auoided preteÌ„ding the priuilege of the KiÌ„gs children not to be in respect of the Croune but of other laÌ„des The royall blood beareth his honour vvith it vvhereso euer it be Vide Anto. Corsetum de potest et excell regi q. 106. CoÌ„querors glad to ioinevvith the ioyall blood Henry the first L. â— ff de legious Commonvse and pâ—â—ctise the best interpretation of the lavv Eodâ— anno Rex cuÌ„ in diebus suis processisset AeldredaÌ„ Vigornen sem Episco pum ad Regem Hunga riae trans mittens reuocauit inde filium fratris sui Edmundi Eduardum cuÌ„ tota fa milia sua ut uel ipse uel filij eius sibi succedereÌ„t in regnum Flor. histor 1057. Flor histo â—066 Aelredus Regioual lens de reg Anglorum ad Regem Henr. 2. King Stephen and King H. â— The aduer saries fond imagination that King H. 2. should come to the croune by composition not by proximitie of blood Rex Stepha nus omni haerede ui duatus prae ter solummo do Ducem Henricum recognouit in conuentu EpiscoporuÌ„ aliorum de regno Optimatum quod Dux HeÌ„r ius hae reditariuÌ„ in regnuÌ„ Angliae habebat Et Dux benigne concessit ut Rex Stepha nus tota uita sua suuÌ„ regnuÌ„ pacifice possideret Ita tamen confirmatum est pactuÌ„ quod ipse Rex ipsttuÌ„e praesentes cum caeteris regni optimatibus iurareÌ„t quod Dux Henr. post morteÌ„ Regu si illum superuiueret regnum sine aliqua contradictione obtincret Flor. histo An 1153. The like fond imagination touching King Richardes nephevv Diuersitie of opinioÌ„s touching the vncle aÌ„d nephue vvhether of them ought to be preferred in the royall gouernement