2. 21 E. 4. fol. 97. 7 H. 7. fo 15. Yf therefore any deede dothe wante that speciall clause and mention althowghe the partie in deede hathe putt his seale vnto the same yet ys that deede or specialtie voyde iÌ„ lawe So likewise the lavve geuethe aucthoritie vnto the Lorde to distraine vpon the lande holden of him for his rentes and seruices devve for the same and farther dothe appointe to carrie or driue the same distresse vnto the povvnde 9. E. 4 fo 2. 22 E. 4. fo 47. there to remaine as a gage in lavve for his saide rentes and seruices Yf the Lorde shall either distraine his tenaunte owte of his Fee or seignorie 29 H. 6. fol. 6. or yf he shall labour occupie the chattelles distrained 29. li. Assiar The distresse so taken by him ys iniuriouse and vvrongfull in lavve p. 64 For as muche as he hathe not done accordinge to the prescribed order of the lavve The statute made Anno 32. H. 8. geuethe aucthoritie vnto tenaÌ„te in tayle and to others beinge seased of lande in the right of theire vviues or churches to make leases of the same Wherein also a prescripte order and forme for the same ys sett forthe Yf any of the saide persons shall make any lease wherein he dothe not obserue the same prescribed order in all pointes the same lease ys not vvarented in any point by the saide statute Likevvise the statute made in Anno 27. H. 8. of bargaines and sales of laÌ„de appointethe a forme and order for the same 27. H. 8. cap. 10. that ys they muste be by vvritinge indeÌ„ted sealed aÌ„d enrolled vvithin sixe monethes next after the dates of the same vvritinges Yf any bargaine and sale of lande be made vvherein any of the thinges appointed by the saide statute are omitted the same ys vitious aÌ„d voide in the lavve So likevvise the statute made in An. 32. H. 8. geaueth aucthoritie to dispose laÌ„des and tenemeÌ„tes by laste vvill and restamente in vvritinge 32. H. 8. cap. 1. Yf a man do demisse his laÌ„de by his laste vvill restameÌ„te nuncupatiue vvithovvte vvrittinge this demise is insufficieÌ„te in lavve aÌ„d ys not warranted by the saide statute We leue of a nomber of like cases that we might multiple in the proufe of this matter Wherein vve haue tarried the longer by cause the adâ—saries make so greate a countenaÌ„ce therevpon And by cause all vnder one yt maye serue for the ansvvere also tovvchinge the kinges royall assente to be geven to parliamentes by his lettres patentes signed vvith his hande Which ys nothinge else but a declaration and affirmaÌ„ce of the coÌ„mon lawe And no newe aucthoritie geven to him to do that he coulde not do before or any forme praescribed to binde him vnto Besides that in this case there ys no feare in the worlde of forginge and counterfeytinge the kinges hande Where as in the testamentarie cause yt ys faâ—re other wise as the worlde knovvethe and dailie experience teacheth And so with all do vve conclude that by reason this surmised will was not signed with the kinges hande yt can not any vvaye hurte or hinder the iuste right aÌ„d clayme of the Quene of Scotlande to the succession of the crovvne of Englande Nowe supposinge that neither the Lorde Pagett nor Syre Edvvarde Mountegevve aÌ„d willim Clarke had testified or published any thinge to the infringinge and overthrowinge of the aduersaries assertioÌ„ towchinge the signinge of the saide will Yet ys not therebye the Quene of Scotlandes title altogether hindered For she yet hathe her iuste aÌ„d lawfull defeÌ„ce for the oppugninge of the saide Assertion aswell againste the persons and saienge of the witnesses yf any shall come forthe as otherwise she maye iustlie require the saide will to be browght furthe to light and especiallie the signinge of the same vvith the kinges hande to be dewly and consideratelie pondered weied and conferred She hathe her iuste defence and exceptions and muste have And yt were against all lawes and the lavve of nature yt self to spoile her of the same And all good reason geavethe that the saide originall will standinge vpon the triall of the kâ—nges hande be exhibited that yt maye be compared vvith his other certaine and well knowen hande writinge and that other thinges maye be done requisite in this behalf But yet all this notwithstandinge lett vs nowe imagine and suppose that the kinge him self whose harâ—e and hande Were dovvbtelesse farre from any suche doinges Lett vs yet I saie admitte that he had signed the saide Will vvith his ovvne hande Yet for all that the aduersaries parchance shall not finde no not in this case that the Quenes iuste title right and intereste dothe any thinge fayle or quayle The supposed will caÌ„ not preiudice the Q. of Scottes thovvghe yt had bene signed vvith the Kinges ovvne hande Or rather lest vs vvithovvte any perchance saye the iustice and aequitie of her cause and the invincible force of trevvthe to be suche that neither the stampe nor the kynges ovvne hande can beare and beate yt dovvne Which thinge we speake not vvith ovvte good probable and vveightie reasons Neither do vve at this time minde to debate and discovvrse vvhat povver and aucthoritie and howe farre the parlamente hathe yt in this and like cases Which parchance some other vvolde here do We vvill onlie intermedle vvith other thinges that reache not so farre nor so highe and seame in this our presente question vvorthie and necessarie to be considered And firste before we entre into other matters vve aske this reasonable and necessarie question Whether theis generall vvordes vvhereby this large and ample aucthoritie ys conueyed to kinge Henrie muste be as generallie and as amplie taken or be restrained by some manner of limitation aÌ„d restriction agreable to suche mynde and purpose of the parliamente as muste of verie necessitie or greate lykelyhodde be construed to be the verye mynde and purpose of the sayde parliamente Ye will saye perchance that the power and aucthoritie of assignation muste be taken generallie and absolutelie withowte exception sauinge for the owtewarde signinge of the will Trewthe yt ys there ys nothynge elles expressed But yet was there some thinge elles principallie intended and yet for all that there must nedes be some qualification aÌ„d restraiÌ„t of the generall words of the statute neaded not to be specified The owtewarde manner was so speciallie and preciselie appointed and specified to auoide suspitious dealinge to auoide corruption and forgerie And yet vvas the vvill good and effectuall vvithowte the kinges hande Yea and the assignation to had bene good had not that restrainte of the kinges hande bene added by the parliamente But for the qualification of the person to be limited and assigned and so for the necessarie restriction and limitation of the vvordes were they neuer so large and ample there ys thowghe nothinge were spoken therof an ordinarie helpe and remedie otherwise
suche lawfull prouffe againste the saide will ê“ducted For yf yt had bene yt wolde haue bene publisshed in the starre chamber preached at Pawles crosse declared by acte of parliamente proclaymed in euerie quarter of the realme Yea admittinge saye they that yt were proued that the saide pretensed will lacked the kinges haÌ„de yet neuerthelesse saye they the verye copies we haue spoken of beinge writteÌ„ signed or at leaste interlined with his owne hande maye be saide a sufficiente signinge with his owne hande For seinge the scope and finall purpose of the statute vvas to haue the succession prouided for and asserteined which ys sufficientlie done in the saide vvill And seinge his ovvne hande was required but onlie for eschevvinge euill aÌ„d sinister dealinge vvherof there is no suspition in this vvill to be gathered What matter in the vvorlde or vvhat differeÌ„ce ys there When the kinge fulfilled and accomplished this gratious acte that was loked for at his handes Whether he signed the will vvith his ovvne hande or no. Yf yt be obiected that the kinge was obliged and bovvnde to a certaine precise order and forme vvhiche he coulde in no vvise shifte but that the acte withoute yt muste perishe and be of no valewe Then saie they we vndoe vvhole ê‘liameÌ„tes asvvell in Quene Maries time as in kinge Henrie the eightes time In Quene Maries time by cawse she omitted the stile appointed by parliamente Anno Henrici octaui tricefimâ— quinto Ann. H. 8. 35. In kinge Henries time by reason there was a Statute that the kinges will abseÌ„te maye be geaven to an acte of parliameÌ„t by hys lettres pateÌ„tes signed with his hande Ann. H. 8. 33. 21. thowghe he be not there personallie And yet did the saide kinge supplie full ofte hys consente by the stampe onlie This yet not with standinge the saide parliamentes for the omission of formes so exactelie and precisely appointed An ansvvere by the vvaye of reioynder to the same are not distroied and disanulled After this sort in effecte Haue the aduersaries replied for the defence of the saide pretensed will To this we will make our reioynder and saye Firste that our principall matter ys not to ioyne an issewe whether the saide kinge made and ordeined any sufficiente will or noo We leaue that to an other time But whether he made any testamente in suche order and forme as the statute require the. Wherefore yf yt be defectiue in the saide forme as we affirme yt to be were yt otherwise neuer so good and perfecte thowghe yt were exemplified by the greate seale and recorded in the chauncerie and taken coÌ„monlie for his will and so accomplished yt ys nothinge to the principall question Yt resteth then for vs to consider the weight of the aduersaries presumptions whereby they wolde enforce a probabilitie that the testamente had the foresaide requisite forme yet firste yt ys to be considered what presumptions and of what force and nomber do occurre to auoide and frustrate the aduersaries presumptions and all other like We saye then there occurre manye likelihoddes Diuers pÌ„sumptions aÌ„d reasons agaiÌ„st the supposed vvill manye presumptions manye greate and weightie reasons to make vs to thincke that as the kinge neuer had good and iuste cause to mynde and entreprise suche an acte as ys pretended So likewise he did entreprise no suche acte in deede I denie not but that their vvas suche auctoritie geaueÌ„ him neither denie but that he might also in some honorable sorte haue practised the same to the honour aÌ„d welthe of the realme to the good coÌ„teÌ„tatioÌ„ of the same realme But that he had either cause or did exercise the saide aucthoritie in suche strange aÌ„d dishonorable sorte as ys pÌ„teÌ„ded I plainlie denie For beinge at the time of this pÌ„tensed will furnissâ—ed and adorned with issewe our late kiÌ„ge Edward aÌ„d ladie Marie late Quene aÌ„d with our graciouse souereigne Elizabeth theire state aÌ„d successioÌ„ beinge also latelie by acte of ê‘lameÌ„te established what nede or likelyhode was there for the kinge theÌ„ to practise such newe deuises as neuer did I suppose any kinge in the realme before aÌ„d fewe in any other beside And vvhere they vvere practised comonly had infortunate and lamentable successe What likeliehodd was there for him to practise suche deuises especiallie in his later dayes when wisdome the loue of God and his realme shoulde haue bene most ripe in him That were likely to sturre vppe a greater fier of greauouse contention and wofull distruction in Englande Then euer did the deadlie factioÌ„ of the redd rose and the white lately by the incorporation and vnioÌ„ of the howses of yorke and Lancaster in the ê‘soÌ„ of his father throwghe the mariage of Ladie Elizabeth eldeste dawghter to kinge Edwarde the fowrth most happelie extinguished aÌ„d buried And thowghe yt might be thowght or saide that there wolde be no suche cause of feare by reason the matter passed by parliameÌ„te yet coulde not he be ignorante that nether pÌ„liameÌ„tes made for Henrie the fowrthe or continewance of two discentes Which take no place in geuinge any title touchinge the crowne in kinge Henrie the sixte nor parliamentes made for kinge Richarde the thirde nor ê‘liamentes of attaynder made againste his father coulde either preiudice his fathers right or releue other againste suche as preteÌ„ded iuste right and title And as he coulde not be ignorante therof so yt ys not to be thought that he vvolde abuse the greate confidence putt vpon him by the parliamente and disherite vvith ovvte any apparente cause the next royall bloude and thincke all thinges suer by the colour of a ê‘liamente The litle force vvherof againste the right inheritour he had to his fathers and his ovvne so ample benefitt so latelie and so largelie seen and felte and yet yf he mynded at any time to preiudice the sayde Ladye Marie Quene of Scotlande of all times he wolde not haue done yt then wheÌ„ all his care vvas by all possible meanes to contriue and compasse a mariage betwene his sonne Edwarde and the saide Ladie and Quene Suerlie he vvas to vvise of him self and vvas furnisshed vvithe to wise counsailours to take suche an homelie vvaye to ê“cure aÌ„d purchasse the saide mariage by And leste of all can vve saye he attempted that disshonorable disherison for anye speciall inclination or fauour he bare to the freÌ„che Quene his sisters children For there haue bene of his nere and priuie counsaile that haue reported that the kinge neuer had any greate likinge of the mariage of his sister vvith the Duke of Suff. Who married her firste priuelie in Fraunce aÌ„d afterwarde openlie in Englande and as yt ys saide had his pardon for the same priuie mariage in vvritinge Howe soeuer this matter goethe certaine yt ys that yf this pretensed vvill be trewe he transferred and transposed the reuersion of the crowne not onlie from the Quene of Scotlande from my Ladie Lenneux and theire issewe but eauen from
Yf the realme had bene set ouer to a furious or a made man or to an ideot or to some forraine aÌ„d Machometicall Prince and to suche a one our stories testifie that kinge IohnÌ„ vvolde haue submitted him self and his realme or to any other notoriouse incapable or vnable person Matheus parisiensis in Ioanne The generaltie of the vvordes seame to beare yt But the good mynde and purpose of the ê‘liamente and mans reason do in no wise beare yt Yf ye graunre that theis wordes muste nedes haue some good and honeste construction and interpretation as reason dothe force you to grauÌ„te it Yet will I aske farther whether as the kinge cutt of in this pretensed will the whole noble race of the eldeste sister aÌ„d the firste issewe of the yongeste sister So yf he had cutt of also all the ofspringe aswell of the sayde yoÌ„geste sister as of the remnante of the royall bloude aÌ„d placed some beiÌ„ge not of the sayde bloude and perchance othervvise vnable this assignation had bene good aÌ„d valable in lavve as coÌ„formable to reason and to the mynde and purpose of the parliamente Yt vvere suerlie to greate an absurditie to graunte yt There muste be therefore in this matter some reasonable moderation and interpretation as vvell towchinge the persons compÌ„hended vvith in this assignatioÌ„ and theire qualities and for the persons also hauinge right aÌ„d yet excluded As for the manner of the doinge of the acte aÌ„d signinge the will For the kinge as kinge coulde not dispose the crowne by his vvill And was in this behalfe but an arbiter and comissioner Wherfore his doinges muste be directed aÌ„d ruled by the lawe aÌ„d accordiÌ„ge to the good miÌ„de aÌ„d meaninge of those that gaue the aucthoritie And vvhat theire mynde vvas yt vvill appeare well inowghe euen in the statute yt self Yt vvas for the auoidinge of all aÌ„biguities dowbtes and diuisions towchinge the successioÌ„ They putt theire whole truste vpoÌ„ the kiÌ„ge as one whome they thovght most earnestlie to mynde the vvealthe of the realme as one that vvolde and coulde beste and moste prudentlie consider and weighe the matter of the succession and prouide for the same accordinglye Yf the doynges of the kinge do not plainlye and euidentlye tende to this ende and scope yf a zelous mynde to the common welthe yf prudence and vvisdome did not rule and measure all theys doinges but contrarye wise parciall affection displeasure yf this arbitremeÌ„te putter he not awaye all contentions and striffes yf the mynde aÌ„d purpose of the honorable parliament be not satisfied yf there be dishonorable devises assignimentes of the crowne in this will and testamente yf there be a nevve succession vnnaturallie deuised Finally yf this be not a testameÌ„te and laste will suche as Modestinus definethe testameÌ„tum est iusta voluntatis nostrae sententia de co quod quis post mortem suam fiert velit Then thovvghe the kinges hande were put to yt l. 1. ff qui testamenta facere The definitioÌ„ of a testament the matter goeth not al together so vvell and so smothe But yet there ys good and greate cause farther to coÌ„sider and debate vpoÌ„ yt Whether yt be so or no lett the indifferente When theye haue well thowght vpon yt iudge accordinglie The adversaries them selues can not altogether denie but that this testameÌ„te ys not correspondente to suche expectation as men worthelie shoulde haue of yt Which thinge they do plainlie confesse for in vrginge theire presumptions wherof we have spoken and myndinge to proue that this will which they saye is coÌ„monlie called kinge Henryes will was no newe will deuised in his sicknes but eaveÌ„ the verie same Where of as they saye vvere dyvers olde copies Theye inferre theis Wordes saienge thus For yf yt be a newe will then devised Who coulde thincke that either hym self wolde or any man durste haue moved him to putt therein so many thinges contrarie to his honour muche lesse durste they them selves devise any newe succession or moue hym to altre yt otherwise then they founde yt when they sawe that naturallie yt coulde not be othervvise disposed Wherein they saie very trevvlie For yt ys certaine that not onlie the coÌ„mon lavve of this realme but nature yt self tellethe vs that the Quene of ScotlaÌ„d yf our gratious Souereigne shoulde happen to dye hauinge no heyres of her dodie ys the next and right full heire of the crovvne Wherefore the kinge yf he had excluded her he had done an vnnaturall acte Ye will saye he had some cause to do this by reason she was a forrainer aÌ„d borne owte of the realme yet this not with staÌ„dinge he did very vnnaturally Yea vnadvisedlie inconsideratelie and wrongfullie and to the greate praeiudice and daunger of his owne title to the crovvne of Fraunce as we haue alredie declared And more over yt ys vvell to be vveighed that reason and aequitie and ius gentium dothe require and crave That as the kinges of this realme wolde thincke them selues to be iniuriouslie haÌ„dled and openlye vvronged yf they marrienge vvith the heires of Spayne Scotlande or any other contrey vvhere the succession of the crovvne deuoluethe to the vvoman vvere shutt ovvte and barred from they re sayde right devve to them by the vviues as vve haue sayde So likevvise they ovvght to thincke of vvomen of theirr Royall bloude that Marrie in Scotlande that they maye vvell iudge and take them selues muche iniured vnnaturallye and vvrongfullye delt vvith all to be thruste from the succession of this crowne beinge therto called by the nexte proximitie of the Royal bloude And suche deuolution of other kingdomes to the crowne of Englande by forraine mariage might by possibilitie oftimes haue chaunced and vvas eauen nowe in this our time verye like to haue chauÌ„ced for Scotlande yf the intended mariage vvith the Quene of Scottes that novve ys and the late kinge Edvvarde the sixte vvith his longer life and some issevve had taken place But novve that she ys no suche forrainer as ys not capable of the crovvne we haue at large alredye discussed Yea I vvill nowe saye farther that supposinge the parliamente mynded to exclude her and migh rightfullye so do and that the kinge by vertue of this statute did exclude her in his supposed vvill Yet ys she not a plaine forrainer and incapable of the crowne For yf the lavvfull heires of the sayde Ladye Frances and of the Ladye Elenour shoulde hapen to fayle vvhich seame nowe to faile at the leaste in the Ladye Katherine aÌ„d her issue for vvhose title to greate sturre hath latelye bene by reason of a sentence diffinitiue lately geauen againste a pretensed matrimonie of the sayde Ladye vvith the Erle of Harforde by my Lorde of Canterburie and other commissionners then ys there no staye or stoppe either by the parliament or by the sayde supposed will But that she the sayde Quene of Scotlande and her heires maye haue and obtayne theire iuste title and
saide as what vve further shall saie in supplemente of full answere and then to iudge and deme of the matter none otherwise then reason equitie lawe do craue They shall at lengthe finde owte and throwghlie perceaue and knowe theis mens dealings and doings Who as yet cover theire fovvle filthie lienge detestable practizes and traiterouse enormities withe suche a visarde of counterfeite false fained holines and suche excedinge greate shewe of zeale to the Quenes honour in punishinge off malefactours and to the preseruatioÌ„ of the state of the realme as thowghe all the worlde vvolde fall and goe to rewen yf yt were not vpholden vnderpropped by the streÌ„gthe of theire showlders Theie shall see hovve they will appere in theire owne naturall likenes so ovvgelie that all good harts vvill vtterlie detest them and thincke them most vvorthie for example sake to all the Worlde hereafter of extreme punishemeÌ„te We affirme then first that as they have produced nothinge in the vvorlde tovvchinge the principall points As of the lorde Darleies deathe the acquitall of the Erle Bothvvell and the Quenes mariage vvith him iustlie to charge her vvithall So are theie them selues asvvell for the saide acquitall and mariage as for theire damnable and rebellyouse attempts against theire Sovereigne and for manie other enormous crimes so farre and so deapelie charged â–ª so fovvlie stained and so shamefullie marked and noted that never shall they Withe all theire hypocriticall fine fetches be able to rubbe ovvte the dirtye blotts therof from theire skirts Whiche thinge vvilbe easelie perceaved of them that vvyll vouchesauf and aduisedlie coÌ„sider the fonde friuolouse and contradictorie excuses they make in theire ovvne defence At the begininge theire open surmised quarrell vvherby they vvente abovvte to dravve the peoples harts to them selves and to strengthen theire ovvne faction stode in three poynts as appearethe by theire excuses and by theire pretensed proclamations The first vvas to deliver the Quene from the Erle Bothevvell vvho violentlie deteined her The causes that the Rebells pÌ„tended at the begininge and to preuent daungers immineÌ„t to her parson The seconde to reuenge the kings deathe vpon the saide Both vvell vvhom they knevve as they pretended to haue bene the principall doer in the execution of the saide murther The thirde Was to preserue the yonge Prince the Quenes soÌ„ne This ys theire iolie and holie preteÌ„ce Novv lett vs see hovve conformable theire vvorthie procedings are to theis theire colorable cloked holie collusions The fyrst gentle and humble admonition that theis good louinge subiects gaue her An ansvvere to the first to reforme the surmised enormities vvas in battell arraye at Bortvvike castle vvhiche they thovvght vpoÌ„ the sodaine to haue possessed vvith the Quenes person vvher vpon they beinge disapointed therof gatt into the tovvne and fortresse of Edenborowghe by the treasoÌ„ of Balfoure the capitaine therof and of Cragmiler the prouoste of the citie Wherbi they beinge the more animated to followe and prosequute theire vvicked enterprise begane nowe to be stronge in the filde The Quene hauing also a good stroÌ„ge armie and thinckinge her self vvell able therby to encounter vvithe the ennemie and to represse theire furiouse outrage yet not vvithestandinge for the greate loue aÌ„d pittie she toke of them thovvghe rebelliouse subiects Wilinge as muche as in her laye to kepe and preserue theire bloudd from shedinge offered them fayre of her owne free motion that yf they wolde peaceablie come to them and take dewe and conuenient order for the redresse of all suche things as might appere by lavve and reason mete to be reformed Wher vpon the lorde Grange was sente by the lords to her The lorde Grange ê“mised vpoÌ„ his knees obedience in all the rebells names Who in all theire names moste huÌ„blie vpoÌ„ his knees assured her of all dewe obedience of securitie and sauftie of bothe her life and honour And so the good ladie her conscience beringe her vvitnes of all her iuste and vpright dealings and therefore nothinge mistrustinge dismissinge her armie yelded her self to the lords Who conueyed her to Edenborowghe aÌ„d there sett her at suche a meruelouse libertie and in suche securité and safetie that all good men to the Worlds ende Will vvonder at theire excediÌ„ge good loyaltie Fyrste kepinge her owne pallace they sett and placed her in a marchants howse and vsed her otherwise verie homelie She nowe consideringe and perceauinge to vvhat ende theis matters tended most pittifullie cried ovvte and called vpon them to remember theire late promisse or at the leaste that she might be browght before the counsaile offeringe to stande to the order and direction of the states of the realme but God knovvethe all in vaine Foâ— novve had they the praye vvheron they intended to vvhett theire bloudie teathe or they did dismisse or forgoe her as the euente dothe declare Wherefore in the night priuelie she vvas conuaied and vvithe haste in disgvvised apparrell The Quene inprisoned at lochleuen to the stronge forte of Lechleuen and after a fevve dayes beinge stripped ovvte and spoiled of all her princelie attyremeÌ„te vvas clothed vvith a course brovvne cassocke After this theis good loyall subiects practisinge aÌ„d encreasinge more and more dailie the performance of theire saide promised obedience neuer ceased vntill they had vsurped the full auctoritie and regiment of the vvhole In to the vvhiche thovvghe they had entruded them selues yet seinge as blinde as they vvere by disordinate vnseamlie and vnmeasurable ambition that the Quene remained and vvas still Quene and that there vvas no iuste cause by the ordinarie course of the lavve or for anie her demerites deserts to briÌ„ge her forthe to her triall that she might be conuicted aÌ„d deposed vvent like good honest plaine men and vvell meaninge subiects bluntlie to vvorke and consulted and determined to dispatche and ridd her ovvte of her lif vnlesse she vvolde yelde to them aÌ„d subscribe suche vvritings as they vvolde sende to her concerninge the demission of her crovvne to her sonne and the regimente of the reaulme to the Erle Murraie Wher vpon the Erle of Athole Secretorie Ledington withe other principall of theire factious bande sent Robert Miluen to Lechleuen to vvill her in anie case yf she sovvght the sauuegarde of her life to condiscende to such demandes and to sett her hande to suche vvritings as shoulde be proposed and brovvght vnto her Whiche as they saide to do The Quene threatned to be ridd avvaye yf she wolde not renoÌ„ce her crovvne neuer coulde be preiudiciall to her beinge by force and violence extorted Syr Nicholas Throkmarton also beinge then ambassadour there for the Quene of England gaue her the like aduice Novve at the laste comethe the lorde Lindzaye sente in comisssioÌ„ from theire counsaile to presente and offer vnto her the writings who most greauouselie withe full fearefull words verie cruell sterne countenaÌ„ce threatened her that vnlesse she Wolde therto subscribe she shoulde lose
one as for the excelleÌ„te giftes of God and nature in her most princelie appearinge ys vvorthie to inherite either this noble realme or any other be yt of muche more dignitie and worthines But nowe I claime nothinge for the vvorthines of the person whiche God forbidd shoulde be any thinge preiudiciall to the iuste title of others yf moste open and manifeste right Iustice and title do not coÌ„curre with the worthines of the person Then lett the praise and Worthines remaine where yt ys And the right Where God and the lavve hathe placed yt But seinge God nature and the lavve dothe call the person to this expectation whose intereste and claime I do novve prosequute I meane the right excellente Ladie The Quene of Scots is the right heire appareÌ„te to the crovvne of Englande Ladie Marie Quene of Scotlande I hope that when her right and iuste title shall be throwghlie harde and considered by the indifferente Reader yf he be persvvaded alredie for her right he shall be more firmelie setled in his trevve and good opinion and that the other parties beinge of a contrarie minde shall finde good cavvses and grovvndes to remoue them from the same and to geaue ouer and yelde to the trevvthe Her graces title then yf God call our Souereigne ovvte of this transitorie life hauinge no issue of her maiesties bodye as yt ys moste open and euidende so yt ys moste conformable to the lavve of God of nature and of this realme And consequentlie in a manner of all other realmes in the vvorlde as grovvinge by the neareste proximitie of the royall bloude She ys a kinges and a Quenes davvghter her self a Quene Davvghter to the late kinge Iames of Scotlande sonne to ladie Margarett the eldest sister to our late Souereigne kinge Henrie the eight Whose Davvghter also the ladie Lenoux ys but by a later husbande The ladie Frances late vvyfe to Henry Marques dorsett aftervvarde Duke of Suffoocke And the ladie Elenour late vvyfe to the Erle of Cumberlande and theire progenye procedethe from the ladie Marie dowager of France yongest sister of the saide kinge Henrie late vvife to Charles Brandon Duke of Suffolke I might here fetche forthe olde farne dayes I might reache backe to the noble and vvorthie kinges longe before the conqueste of vvhose royall bloude she ys discended vvhiche ys no parte of our purpose neither dothe enforce her title more then to proue her no stranger vvithin this realme But the argumentes and proufes which vve meane to alleage and bringe forthe for the confirmation of her right and title in succession as heire apparente to the crovvne of Englande are gathered and grovvnded vpon the lavves of God and nature and not onlie receaued in the ciuill pollicies of other nations but also in the olde lawes and customes of our ovvne contrey by reason approued and by vse and longe concontinevvance of time obserued from the firste constitution of this realme in politicall order vnto this presente daye And yet for all that hathe yt bene aÌ„d yet ys by some men attempted artificiallie to obiecte and caste manie mistie darke clovvdes before meÌ„nes eyes to kepe from them yf yt maye be the cleare light of the saide iuste title the vvhiche they vvolde extingvvishe or at the leaste blemishe withe some obscure shadovve of lavve But in deede against the lavve and vvith the shadovve of parliameÌ„ts But in deede against the trewe meaninge of the pliameÌ„tes And albe it yt were inowghe for vs our cawse beinge so firmelie aÌ„d suerlie established vpoÌ„ all good reason aÌ„d lawe to stande at defence and onlie to auoide as easelie vve maye theire obiections Whiche principallie and cheifelie are grovvnded vpon the common lawes and statutes of this realme yet for the betteringe aÌ„d strengtheninge of the same vve shall laye forthe sondrie greate aÌ„d inuincible reasons coÌ„ioyned vvithe good and sufficieÌ„t aucthoritie of the lawe so approued and coÌ„firmed that the aduersaries shall neuer be able iustlie to impugne them And so that vve truste after the readinge of this our treatise aÌ„d the effectes of the same vvell digested no manner of scruple owght to remaine in any indiferent mans harte concerninge her right and title Whose expectatioÌ„ aÌ„d coÌ„science althovvghe we truste fullie in this discourse to satisfie aÌ„d doubte nothinge in the vvorlde of the rightfulnes of our cause Yet must we nedes coÌ„fesse the maÌ„ner aÌ„d forme to eÌ„treate therof to be full of difficultie aÌ„d ê‘plexitie For suche causes of Princes as they be seldome and rare so ys yt more rare and stange to finde them discoursed discussed and determined by any lawe or statute Albe it nowe and then some statutes tende that vvaye Neither do our lavves not the corps of the Romaine and ciuill lavve lightlie medle With the princely gouernemente but vvith priuate mens causes And yet this not withstandinge for the better iustifiengè of our cavvse albe yt I denye not but that by the coÌ„mon lavve yt muste be knovven vvho ovvght to haue the crovvne And that the coÌ„mon lavve muste discerne the right aswell of the crowne as of subiects Yet I saye that there ys a greate difference betvvene the kinges right aÌ„d the right of others And that the title of the crovvne of this realme ys not subiecte to the rules and principles of the coÌ„mon lavve of this realme as to be ruled and tried after suche order and course as the inheritance of priuate personnes ys by the same The coÌ„moÌ„ lavve of this realme ys rather grouÌ„ded vpon a generall custome then any lawe written For the prouf wherof let vs consider What the comon lavve of this rerealme ys and howe the rules therof be grownded and do take place Yt ys verie manifeste and plaine that the comon lawe of this realme of Englande ys no lawe WritteÌ„ but grovvnded onlie vppoÌ„ a coÌ„mon and generall custome throvvghe ovvte the vvhole realme as apparethe by the treatise of the aunciente and famous vvriter vpon the lavves of the realme named RANVLPHVS DE GLANVILLA In ê“logo suo eâ—sdeÌ„ libri fol. 1. 2. Who wrote in the time of the noble kinge Henrie the secoÌ„de De dicto Ranulpbo Glanuilla vide GeralduÌ„ CaÌ„breÌ„sem in Topogra de vvallia of the lavve and custome of the realme of englande Beinge then and also in the time of the reigne of kinge Richarde the first the cheif counsailler and iustice of the same kinge And also by the famous Iustice Fortescue in his booke which he wrote beinge Chancellour of Englande Fortescue de laud legum Angliae ca. 17 De laudibus legum Angliae And by 33 H. 6 51. and by 8. E. 4. 19. Which custome by vsage and coÌ„tinuall practise heretofore had in the kinges covvrtes vvithin this realme ys onlie knovven and mainteined 8. E. 4 19 33. H. 6 51 piÌ„soÌ„s printe Wherein we seame muche agreable to the olde lacedemoniaÌ„s vvho manie hundred yeares past most politikelie and famouselie gouerned theire common
vvealthe vvith lawe vnvvritten Iusti. de iure natural gent ciuil 55. ex non script Whereas amonge the Athenienses the written lavves beare all the svvaye This thinge beinge so trevve that vvithe any reason or good authoritie yt can not be denied then vve are farther to consider vvhether the kinges title to the crovvne can be examined tried aÌ„d ordered by this common custome or no. Yf ye saie yt maye then muste ye prove by some recorde that yt hathe bene so vsed Othervvise ye onlie saie yt nothinge at all prove yt For nothinge can be saâ—ed by lavve to be subiecte to any custome vnlesse the same hathe bene vsed accordinglie and by force of the same custome I am Well assured that you are not able to proue the vsage and practise therof by any recorde iÌ„ any of the kinges cowrtes Yea I vvill farther saie vnto you and also proue yt that there ys no one rule generall or speciall of the coÌ„mon lawe of this realme The aduersaries haue shevved no rule of the coÌ„mon lawe that bindethe the crovvne Which ye either haue shewed or can shevve that hathe bene taken by anye iuste construction to extende vnto or binde the kinge or his crowne I Will not denie but that to declare and sett forthe the praerogatiue and Iurisdiction of the kinge ye maye shevve manie rules of the lawe But to binde him as I haue saide ye can shevve none Ye saie in your booke that yt ys a maxime in our lawe moste manifeste that Who so ever ys borne ovvte of Englande and of father and mother not beinge of the obedieÌ„ce of the kinge of Englande can not be capable to inherite any thinge in England Whiche rule beinge generall withowte any Wordes of exceptio â–ª ye also saie muste neds extende vnto the crovvne What you meane by your lavve I knovve not But yf you meane as I thincke you do the common lawe of EnglaÌ„de I ansuere there ys no suche maxime in the coÌ„mon lavve of this realme of Englande as hereafter I shall manifestlie prove But yf yt vvere for arguments sake admitted for this time that yt be a maxime or generall rule of the coÌ„mon lavve of Englande yet to saie that yt ys so generall as that no exceptioÌ„ caÌ„ be takeÌ„ agaiÌ„st the same rule ye shevve your self either ignorance or elseverie carelesse of your credit For it doth plainlie appeare by the statute of 25. E. 3. 25. E. 3. beinge a declaratioÌ„ of that rule of the lawe which I suppose ye meane terminge yt a maxime that that rule extendethe not vnto the kinges children Whereby yt moste euideÌ„tlie appearethe that yt exteÌ„deth not generallie to all And yf yt exteÌ„de not to biÌ„de the kinges children in respecte of any inheritance desceÌ„ded vnto theÌ„ froÌ„ any of theire ancetours yt ys an argumeÌ„te a forttori that yt dothe not exteÌ„de to biÌ„de the kiÌ„ge or his crowne 5 E. 3 tit Ayle 13. E. 3 tit lettre 31 E. 3 tit tit Coson 42. E. 3 fo 2 22. H. 6 fol. 43 11. H. 4. fo 23 25. litletoÌ„ cap. vilenag And for a ful shorte answere to your authorities sett forthe iÌ„ your marginall notes as 5. E. 3. tit Aile 13. E. 3. tit lrÌ„e 31. E. 3. Coson 42. Edw. 3. fol. 2 22. H. 6. fol. 42 11. H. 4. fol. 23. 24. litlet ca. vilenag Yt maye plainlie appeare vnto all that vvill reade aÌ„d peruse thoses bookes that there ys none of them all that dothe so muche as with a peece of a worde or by any colour or shadowe seame to inteÌ„de that the title of the crowne ys bovvnde by that your supposed generall rule or maxime For euerie one of the saide cases argued and noted in the saide booke are oneli concerninge the dishabilitie of an alien borne and not denisen to demaunde any landes by the lawes of the realme by suyte and action onlie as a subiecte vnder the kinge The aduersaries case ê‘teinethe to subiectes onlye and nothinge tovvchinge any dishabilitie to be layed to the kinge him self or to his subiectes Is there any controuersie abovvte the title of the crowne by reason of any suche dishabilitie towched in any of theis bookes No verelie not one vvorde I dare boldlie saye as maye most manifestlie appeare to them that vvill reade and pervse those bookes And yet ye are not ashamed to note them as sufficiente auctorities for the maintenance of your evill purpose and intente But as ye vvolde seame to vnder stande that your rule of dishabilitie ys a generall maxime of the lawe so me thincketh ye shoulde not be ignorante No maxime of the lawe bindethe the â—rovvne vnles the crovvne specially be named that yt ys also as generall yea a more generall rule aÌ„d maxime of the lawe that no maxime or rule in the lavve can extende to binde the kinge or the crovvne vnlesse the same be speciallie mentioned therein as maye appeare by diuers principles and rules of the lawe which be as generall as is your sayed supposed maxime aÌ„d yet neither the kiÌ„ge nor the crowne is by any of them bownde As for exaÌ„ple yt ys very plaine that the rule of the tenante by the curtesie ys generall vvithovvte any exception at all And yet the same bindethe not the crovvne Of the tenante by the curtesie neither dooth extende to geue any benefitt to him that shall marye the Quene of englande As yt vvas plainlie agreed by all the lavviers of this realme vvhen kinge Phillippe vvas maried vnto Quene Marie Althovvghe for the more suertie and plaine declaration of the intentes of kinge Philippe and Quene Marie and of all the states of this realme yt vvas enacted that kinge Philippe shoulde not claime any title to be tenante by the curtesie Yt ys also a generall rule that yf a man die seased of landes in fee simple vvithe ovvte issevve male hauinge diuers davvghters the lande shall be equallie deuised amoÌ„ge the dawghters Whiche rule the learned men in the lavves of this realme agreed vpoÌ„ in the life of the late noble Prince Edvvarde Nor that the landes shal be deuided amoÌ„ges the doughters and also euerie reasonable man knowethe by vsage taketh no place in successioÌ„ of the crowne for there the eldeste enioieth all as thowghe she vvere issevve male Likevvise yt ys a generall rule that the wife after the decease of her husbande shal be indevved and haue the thirde parte of the beste possession of her husbande Nor the Wife shall haue the thirde ê‘te and yet yt ys verie clere that the Quene shall not haue the thirde parte of the laÌ„des belogiÌ„ge to the crowne as appearethe in 5 E. 3 5 E. 3 tit praerogat 20 21. E. 3 fo 13. 9. H. 6. f. 12 52. 28. H. 6 fo 15. Red. priÌ„te tit praerogat 21 E. 3 9 28. H 6. aÌ„d diuers other bookes Besids that the rule of * Nor the rule of possess fratris
c. Possessio fratris beiÌ„ge gnÌ„rall Neither hathe bene or caÌ„ be stretched to the inheritaÌ„ce of the croune for the brother of the half bloud shall succede aÌ„d not the sister of the vvhole bloud as maye appeare by Iustice Moile aÌ„d †34 H 6. 58. Red. printe maie be ê“ued by kinge Etheldred brother aÌ„d successor to kinge Edwarde the Martyr and by kinge Edvvarde the confessour brother to Kinge EdmuÌ„de aÌ„d diuers others who succeded in the crovvne of EnglaÌ„de beinge but of the halfe bloud As vvas also the late Quene Marie aÌ„d ys at this present our gratious Souereigne Elizabethe Who bothe in all recordes of our lavve vvherin theire seuerall rightes and titles to the crovvne are pleaded as by daylie experience asvvell in the exchequer al also in all other covvrtes ys manifeste do make theire conueiance as heires in bloude the one to the other vvhiche yf they vvere coÌ„mon or priuate persones they coulde not be allovved in lavve they as ys vvell knowen beinge of the half bloude one to the other Nor that the executour shall haue the goodes and chatelle of the testatour that ys to vvitt begotten of one father but borne of sondrie mothers Yt ys also a generall rule in the lavve that the executours shall haue the goodes aÌ„d chattelles of the testatour and not the heire aÌ„d yet ys yt othervvise in the case of the crovvne for there the successor shall haue them and not the executour as appearethe in 7 H. 4 by Gascoine 7 H. 4. fo 43 11 H. 4 9. Yt ys likevvise a generall rule that a man Attainted of felonie or treason his heire throwghe the corruption of bloude Nor that a traitour is vnhable to take land by disceÌ„t withoute pardon vvithoute pardon and restitutioÌ„ of bloude ys vnable to take any landes by discente Which rule althowghe yt be generall yet yt extendethe not to the discente or succession of the crovvne althovvghe the same Attainder were by acte of ê‘liameÌ„te as maie appeare by the Attainder of Richarde Duke of yorke and kinge Edvvarde his sonne and also of kinge Henrie the seaueÌ„the whoe were attainted by acte of parliamente and never restored and yet no dishabilitie thereby vnto Edvvarde the fovvrethe nor vnto Henry the seaventhe to receave the crovvne by lavvfull succession But to thys you wolde seame to ansvvere in your saide booke saienge that Henry the seaventhe not vvithstandinge hys Attainder came to the crowne as cast vpon him by the order of the lawe For as muche that vvhen the crovvne vvas caste vpoÌ„ him that dishabilitie ceased Wherein ye confesse directlie that the Attainder ys no dishabilitie at all to the successioÌ„ of the crovvne For althovvghe no dishabilitie can be alleaged in him that hathe the crovvne in possession yet yf there vvere any dishabilitie in him before to receaue and take the same by lavvfull succession then muste ye saie that he vvas not lavvfull kinge but an vsurper And therefore in confessinge Henrye the seaventhe to be a lavvfull kinge and that the crovvne vvas lavvfullie caste vpon hym ye confesse directlie thereby that before he Was kinge in possession there vvas no dishabilitie in hym to take the crovvne by lavvfull succession hys saide Attainder not vvith standinge Whiche ys as muche as I vvolde vvishe you to graunte But in conclusion vnderstandinge your self that this your reason can not mainteine your intente you go abovvte an other vvaye to helpe your selfe An ansvvere to the aduersarie makiÌ„ge a difference betwene attaiÌ„der the birthe ovvte of the alleageance makinge a difference in the lavve betvvene the case of Attainder and the case of forren birthe ovvte of the kinges alleagance sainge that in the case of the Attainder necessitie dothe enforce the succession of the crovvne vpon the partie attainted For othervvise ye saie the crovvne shall not descende to anye But vpon the birthe ovvte of the kinges allegeance ye saie yt ys othervvise And for prouf therof ye put a case of I. S. beinge seased of landes and havinge issevve A and B. A ys attainted in the life of I. S. his father and after I. S. diethe A livinge vnrestored Novve the lande shall not descende either to A or B. But shall goe to the lorde of the fee by vvaye of eschete Othervvise yt had bene ye saie yf A had bene borne beyonde the sea I S. breakinge his allegeance to the kinge and after I S. cometh againe into the realme aÌ„d hathe issevve B. and diethe for novve ye saie B. shall inherite hys fathers landes Yf the crowne had bene holden of any person to whom yt might haue escheted as in your case of I S. the lande did Then paraduenture there had bene some affinitie betwene your saide case and the case of the crowne But there ys no suche matter Besides that ye muste consider that the kinge cometh to the crovvne not onlie by discente but also and cheifelie by succession as vnto a corporation And therefore ye might easelie haue sene a difference in your cases betvvene the kinges Maiestie and I S. a subiecte And also betwene landes holden of a lorde above and the crowne holden of no earthlie lorde but of God almightie onlie But yet for argumentes sake I wolde faine knowe vvhere you finde your difference aÌ„d vvhat aucthoritie you can shevve for the proof therof Ye haue made no marginall note of any aucthoritie And therefore vnlesse ye also saie that ye are Pythagoras I will not beleve your difference Well I am assuered that I can shewe you good aucthoritie to the contrarie And that there ys no difference in your cases Pervse I praie you 22. H. 6. and there maye you see the opinioÌ„ of Iustice NewtoÌ„ 22. H. â— fol. 43. that there ys no difference in your cases but that in bothe your cases the lande shall eschete vnto the lorde And Prisote beinge then of counsaile vvith the partie that claimed the landes by a discente Where the eldeste sonne vvas borne beyonde the seas durste not abide in lavve vpon that title This aucthoritie ys againste your difference and this aucthoritie I am well assuerid ys better then any that you haue shewed to proue your difference But yf We shall admitt your difference to be accordinge to the lavve yet your cases Whervnto you applye your differeÌ„ce are nothiÌ„ge like as I have saiede before But to procede on in the proof of our purpose as yt dothe appeare The supposed maxime of the adâ—saries tovchethe not kinges borne beyoÌ„de the sea as appeareth by kinge Stephen and kiÌ„ge H. 2. that neither the kiÌ„ge nor his crovne ys bownde by theys general rules which before I haue shevved So do I like wise saie of all the residewe of the generall rules aÌ„d maximes of the lawe beinge in a maÌ„ner infinite But to retorne againe vnto your onlie supposed Maxime whiche you make so generall coÌ„cerninge the dishabilitie of persoÌ„s borne beyonde the seas yt ys verie plaine
that yt was never taken to exteÌ„de vnto the crovne of this realme of EnglaÌ„de as yt maie appeare by kinge StepheÌ„ by kinge HeÌ„rie the secoÌ„de who were both straÌ„gers FreÌ„ch meÌ„ And borne oute of the kiÌ„ges allegiaÌ„ce and neither vvere they the kinges children immediate nor theire pareÌ„tes of the allegiance And yet they haue bene alwayes accompted lawfull kinges of Englande nor theire title vvas by any man at any time defaced or comptrolled for any suche consideration or exceptioÌ„ of forren birthe And yt ys a worlde to see hovve you vvolde shifte your handes from the saide kinge Henrie Ye saie he came not to the crovne by order of the lavve The aduersaries obiectioÌ„ tovchinge kinge H. 2. avoided but by capitulatioÌ„ or agrement for as muche as his mother by whome he conveied hys title vvas then livinge Well admitt that he came to the crowne by capitulation duringe his mothers life Yet this dothe not proue that he vvas dishabled to receaue the crovvne but rather proveth his abilitie And althovvghe I did also admitt that he had not the crovvne by order of the lavve duringe his mothers life yet after his mothers deathe no man hathe hytherto dovvbted but that he vvas kinge by lavvfull succession and not againste the lavves and customes of this realme For so might you putt a dovvbte in all the kinges of this realme that ever gouerned sithens and driue vs to seake heires in Scotlande or elles where whiche thinge we suppose you are over vvise to goo abowte Besides this I haue harde some of the adversaries for farther helpe of theire intention in this matter saie that kinge Henrie the seconde vvas a Quenes childe and so kinge by the rule of the common lavve Trevvlie I knovve he vvas an Empresse childe but no Quene of Englandes childe For althovvghe Mavvde the Empresse his mother had a right and a good title to the crovvne and to be Quene of EnglaÌ„de Yet vvas she never in possessioÌ„ but kept from the possession by kinge Stephen And therefore kinge Henrye the seconde can not iustlie be saide to be a Quene of Englandes childe nor yet any kinges childe vnlesse ye wolde intende the kinges children by the wordes of infantes de Roy c. to be children of farder degree aÌ„d discended fom the right line of the kinge so ye might saie trevvlie that he vvas the childe of kinge Henrye the firste beinge indede the soÌ„ne and heire of Mavvde the Empresse davvghter and heire of kinge Henrie the firste As tovvchiÌ„ge Arthure kiÌ„ge Richardes nephewe Whereby your saide rule ys here fovvlie foiled And therefore ye Wolde faine for the maintenance of your pretensed maxime catche some holde vppoÌ„ Arthure the sonne of Ieffrey one of the sonnes of the saide Henrie the seconde Vt autem pax ista summa dilectio tam multiplici q arctiori viÌ„culo coÌ„nectaâ— pÌ„dictiscuriae vestriae magnatibê° id ex ê‘te vrÌ„a tractaÌ„tibê° dnÌ„odisponeÌ„te condiximê° intet Arthurum egregiuÌ„ ducem Britanniae nepoteÌ„ nostruÌ„ heredeÌ„ fi fortè sine ê“le obire nos coÌ„â—gerit filiaÌ„ vestraÌ„ matrimoniuÌ„ coÌ„trahenduÌ„ c. Ye saye then like a good and iolie antiquarie that he vvas reiected from the crovvne by cause he vvas borne ovvte of the realme That he vvas borne ovvte of the realme ys verie trevve but that he was reiected from the crovvne for that cause yt ys verie false Neither haue you any aucthoritie to proue your vaine opinion in this pointe For yt ys to be ê“ued by the cronicles of this realme that kinge Richarde the first vncle vnto the saide Arthure takinge his iorney tovvarde HierusaleÌ„ declared the saide Arthur as vve haue shevved before to be heire apparente * In tractatu pacis inter Rich. 1. TancreduÌ„ RegeÌ„ Siciliae vid. Rog. Hoâ—enden Richar. canonicuÌ„ sancta Trinitatis Londini vnto the crowne Whiche vvolde not haue bene yf he had bene taken to be vnhable to receaue the crowne by reasoÌ„ of foreÌ„ birthe And althovvghe kinge Iohan did vsurpe aswell vpoÌ„ the saide kinge Richarde the firste his eldest brother as also vpon the saide Arthur his nephevve yet that ys no proof that he vvas reiected by cause he vvas borne owte of the realme Yf ye colde proue that then had ye shewed some reason and presidente to proue your intente Whereas hitherto you haue sheued none at all nor I am Well assured shall euer be able to shevve Thus maye ye se geÌ„tle reader that neither this pretensed maxime of the lavve sett forthe by the aduersaries nor a greate noÌ„ber more as generall as this ys which before I haue sheued can by anye resonable meanes be stretched to biÌ„de the crovvne of EnglaÌ„de Theis reasons aÌ„d auctorities maye for this time suffice to ê“ue that the crowne of this realme ys not subiecte to the rules and the principles of the common lavve neither can be ruled and tried by the same Whiche thinge beinge trevve all the obiections of the aduersaries made against the title of Marie the Quene of Scotlande to the successioÌ„ of the crovvne of this realme are fullie ansvvered and thereby clierlie vviped avvaye Yet for farther argumentes sake and to the ende vve might haue all matters sifted to the vttermoste and therby all thinges made plaine Let vs for this time some vvhat yelde vnto the aduersaries admittinge that the title of the crovvne of this realme vvere to be examined and tried by the rules and principles of the common lavve aÌ„d then lett vs consider and examine farther whether there be any rule of the common lavve or elles statute that by good and iuste construction can seame to impugne the saide title of Marie the Quene of Scotlande or no. For tovvchinge her lineall descente from kinge Henrye the seauenthe and by his eldeste davvghter as we haue shevved there ys no man so impudeÌ„te to denie yt What ys there then to be obiected Amonge all the rules maximes aÌ„d iudgementes of the common lavve of this realme onlie one rule as a generall maxime ys obiected against her And yet the same rule ys so vntrevvlie sert forthe that I can not vvell agree that yt ys any rule or maxime of the comon lawe of this realme of Englande Your preteÌ„sed Maxime ys who soeuer ys borne ovvte of the realme of Englande A false maxime set forthe by the aduersarie and of father aÌ„d mother not beinge vnder the obedience of the kinge of Englande can not be capable to inheriteany thinge in EnglaÌ„de vvhich rule ys nothinge trevve but altogether false For euerie stranger and alien ys able to purchasse the inheritance of landes vvithin this realme as yt maye appeare in 7 7. E. 4. fol. 28. 9. E. 4. fo 5. 11. H. 4. fol. 25. 14. H. 4. f. 10. 9 of kinge Edvvarde the fovvrthe And also in 11 14 of kinge Henrie the fovvrthe And altovvghe the same purchasse ys of some men accompted to be to the vse of
my Ladye Fraunces and my Ladie Elenour also dawghters to the Frenche Quene vvhiche ys a thinge in a manner incredible and therefore nothinge likelie I muste novve gentle reader putt the in remembrance of two other moste pregnante and notable coniectures and presumptions for amonge all other inconueniences and absurdities that doe and maye accompanye this rashe and vnaduised acte by thys pretensed vvill incoÌ„sideratelye mainteined yt ys principallie to be noted that this acte geuethe appareÌ„te and iuste occasion of perpetuall disherison of the stile and title of Fraunce incorporated aÌ„d vnited to the crowne of this realme The supposed vvyll ys pÌ„iudiciall to the crowne of Englande for the clayme of the crovne of France For vvhereby do or haue the Frenche men hitherto excluded the kinges of this realme claymenge the crowne of FraÌ„ce by the title of Edvvarde the thirde fallinge vpon hym by the right of his mother then by a politike and ciuill lavve of theire ovvne that barrethe the female from the right of the crovvne And vvhat dothe this pretensed acte of kinge Henrie but iustifiethe and strengtheneth theire quarell and ouerthrowethe the fowndation and bulworke vvhereby vve mainteine our foresaide title and clayme Yf we maye by our Municipall lavve exclude the saide Quene of ScotlaÌ„de beynge called to this crovvne by the title of generall heritage Then ys theire municipall lawe likewise good and effectuall aÌ„d consequentlie we do and haue made all this while an vniuste and wrongfull clayme to the crowne of Fraunce But nowe to goe somewhat farther in the matter or rather to come nerer home and to the quicke of the matter we saye as there was some apparente aÌ„d good cause whie the kinge shoulde the twentie and eight yere of his reygne thyncke vpon some limitatioÌ„ and appointmente of the crowne kinge Edwarde as yet vnborne so after he was borne and that the title and intereste of the reuersion of the crowne after him was the thirtie and fifte yeare by parlamente confirmed to the late Quene Marie and our gratiouse Souereigne Elizabethe Yt ys not to be thowght that he wolde afterwarde ieperde so greate a matter by a testamente and vvill vvhiche maye easelie be altered and counterfeited And leaste of all make suche assignation of the crowne as ys nowe pretended For beinge a Prince of suche wisdome and experience he coulde not be ignorante that this was the nexte and redieste waye to putt the state at leaste of bothe his dawghters to greate perill and vtter disherison This supposed will geauethe occasion of ambitious aspiringe For the kinges example and boldnes in interruptinge and cuttinge awaye so manye branches of the nereste syde line might sone brede in aspiringe and ambitious hartes a bolde and wicked attempte the vvaye beinge so farre browght in and prepared to theire handes by the kinge him self and theire natures so redie and prone to followe euill presidentes and to cliÌ„me highe by some colorable meanes or other to spoile and depriue the saide dawghters of they re right of the crowne that shoulde discende and fall vpon them And to conuey the same to the heires of the saide Ladye Fraunces And did not I praye you this drifte deuise fall owre eauen so tendinge to the vtter exclusion of the late Quene Marie and our gratious Souereigne Elizabethe Yf God had not of his greate mercie moste gratiouslie and wonderfullie repressed ouerthroune the same Theis reasons then and pÌ„sumptions maye seame well hable sufficieÌ„te to beare dovne to breake aÌ„d ouerthrowe the weke aÌ„d sleÌ„der pÌ„sumptions of the aduersaries grownded vpoÌ„ vncertaine and mere surmises ghesses and coÌ„iectures as amonge other that the kinge vvas offended vvith the Quene of ScotlaÌ„de and vvith the ladye Lenneux vvhich ys not trevve And as for the ladye Lenneux yt hathe no manner of ê“babilitie As yt hathe not in deede in the saide Quene And yf yt had yet yt ys as probable and muche more probable that the kinge vvolde haue especiallie at that time for suche cavvse as vve haue declared suppressed the same displeasure GrauÌ„tinge nowe that there were some suche displeasure vvas yt honorable either for the kinge or the realme or vvas yt thincke ye euer thovvght by the parliameÌ„t that the kinge shoulde disherite them for euerie light displeasure And yf as the aduersaries confesse the kinge had no cavvse to be offended vvith the Frenche Quenes children vvhy did he disherite the Ladye Fraunces aÌ„d the Ladye Elenour also Theire other presumption vvhich they grownde vpon the auoydinge of the vncertaintie of the succession by reason of his vvill The succession to the croune ys more vncertaine by the supposed will then before ys of small force and rather turnethe againste them For yt ys so farre of that by this meanes the succession ys made more certaine and suer that contrarie vvise yt ys subiecte to more vncertentie aÌ„d to lesse suertie then before For vvhere as before the right and claime to the crovvne honge vpon ordinarie and certaine covvrse of common lavve vpon the certaine and assuerid right of the royall and vnspotted bloude Yea vpon the verie lavve of nature vvhereby manye inconueniences manye troubles dangers aÌ„d seditions are in all contreyes politikelie avoided There ys mucheforgerie and counterfeyting of testamentes So nowe dependinge vpon statute onlie yt ys as easie by an other stature to be infringed and ouerthrovvne And dependinge vpon a testameÌ„te ys subiect to manye corruptioÌ„s sinister dealinges cauillacions yea and iuste ouerthrovves by the dishability of the testatour vvitnesses or the legatorie him self or for lacke of dewe order to be obserued or by the deathe of the vvitnesses vnexamined aÌ„d for many other like considerations The monumentes of all antiquitie the memorie of all ages and of our ovvne age and daylie experience can tell aÌ„d shevve vs manye lamentable examples of manye a good and lavvfull testamente by vndevve and craftie meanes by false and suborned vvitnesses Valerius Maximus dedict fact lib. 9 cap. 4. by the couuetous bearinge and maintenance of suche as be in auctoritie quite vndone and ouerthrovvne Wherefore Valerius Maximus crie the owte againste M. Crassus and Q. Hortensuis lumina curiae ornamenta fori Quod scelus vindicare debuerant lucri captura inuitati suis authoritatibus texerint This presumption then of the aduersaries rather maketh for vs and ministrethe to vs good occasion to thincke that the kinge vvolde not hasarde the vveight and importance of suche a matter to reste vppon the validitie or inualiditie of a bare testameÌ„te onlie By this that vve haue saide we maye probablely gather that the kinge had no cause to aduenture so greate an enterprise by a bare vvill and testamente Ye shall nowe heare also vvhie vve thincke he did neuer attempte or entreprise any suche thinge Yt ys vvell knowen the kinge vvas not vvonte lightlie to ouerslippe the occasion of any greate commoditie presentlie offered And yet this not vvithstaÌ„dinge hauinge
geuen to him by acte of parliameÌ„te the orderinge and disposition of all chauntries and colledges He did neuer or verye litle practise execute this aucthorité And shall vve thincke oneles full and sufficient proufe necessarilie enforce our creditt that the kinge to his no preseÌ„te comoditie and aduantage but yet to his greate dishonour to the greate obloquie of his subiectes and other coÌ„treyes to the notable disherison of so manye of the nexte royall bloude did vse any suche aucthoritie as ys surmised Againe yf he had made any suche assignation In this supposed will ys no condition for the mariage of theyres of the Ladie FraÌ„ces as is for the kiÌ„ges ovvne davvghters Who dowbtethe but that as he conditioned in the saide pretensed vvill vvith his noble dawghters to marrie vvith his counsailes aduice either elles not to enioye the benefitt of the succession He vvolde haue tied the saide Ladie Fraunces and Ladie Elenours heires to the same condition Farthermore I am driuen to thincke that there passed no suche limitatioÌ„ by the saide kinge Henries vvill by reason there ys not nor vvas theis manye yeares any originall copie therof nor any authenticall recorde in the chauncerie or elles vvhere to be shewed in all Englande as the aduersaries them selues confesse and in the copies that be spredd abrode the vvitnesses pretended to be presente at the signinge of the saide vvill be suche for the meanenes of theire state of the one side and for the greatenes and vveight of the cause on the other side as seame not the most sufficieÌ„te for suche a case The importance of the cause beinge no lesse then the disherison of so manye heires of the crowne As vvell from the one sister as from the other requirid and craued some one or other of the priuie counsaile or some one honorable and notable ê‘son to haue bene pÌ„sente at the sayd signinge or that some notification shoulde haue bene made aftervvarde to suche persons by the kinge him self or at leaste before some notarie and authenticall person for the better strengtheninge of the saide will Heare ys nowe farther to be considered that seinge the intereste to the crowne ys become a plaine testameÌ„tarie matter and claime and dependethe vpon a laste will when and before what ordinarie this will was exhibited allowed and proued Where and of whome toke the executours theire othe for the trewe performance of the will No order taken for the ê“batioÌ„ of the supposed will Who committed to them the administration of the kinges goodes aÌ„d chatttelles When and to whome haue they browght in the inueÌ„torie of the same Who examined the vvitnesses vpon theire othe for the tenour and trevvthe of the saide testamente Namelie vpon the signement of the kinges hande wherein onlie consistethe the vveight of no lesse then of the crowne yt self Where or in what spirituall or temporall cowrte maye one finde theire depositions But yt were a verie harde thinge to finde that that as farre as men can learne neuer was And yet yf the matter were so plaine so good and so sownde as theis meÌ„ beare vs in haÌ„de yf the originall testament had bene suche as might haue bydden the towchestone the triall the light and the sight of the worlde Whie did not theye that enioyed moste coÌ„moditie thereby aÌ„d for the swaye and auctoritie they bare might and owght beste to haue done yt take coÌ„uenyent aÌ„d suer order that the originall might haue bene dewlie and saufelie preserued or at the leaste the ordinarie probate which ys in euerie poore mans testameÌ„te diligentlie obserued might haue bene procured or seen One or other authenticall instrumente therof reserued The adâ—saries theÌ„ selues see well inowghe yea and are fayne to coÌ„fesse theis defectes but to helpe this micheif they wolde faine haue the enrolemente in the chauncerie to be taken for a sufficiente probate The enrollement in the chauncerie ys nâ— probation by cawse as they saye bothe the spirituall and temporall auctoritie did concurre in the kinges ê‘son Yet do they knowe well inowghe that this plaister will not cure the sore And that this is but a pore helpe aÌ„d shifte For neither the lâ—es patentes nor the enrolemeÌ„te maye in any wise be cownted a sufficieÌ„te probate The chauncerie ys not the cowrte or ordinarie place for the probate of vvilles not the rolles for recordinges the same Bothe muste be done in the spirituall cowrtes vvhere the executours also muste be impleaded and geue theire accompte vvhere the weakenes or strengthe of the will muste be tried the witnesses examined Finallie the probate and all other thinges therto requisite dispatched or yf yt maye be done by any other person yet muste his aucthoritie be shewed the probate and all thinges muste be done accordingelie And amonge other thinges the vsuall clause of Saluo iure cuiuscunque muste not be omitted Whiche thinges I ame assuerid the recordiÌ„ge in the chauncerie can not importe but this cautioÌ„ and prouiso of Saluo iure cuiuscunque which ys moste coÌ„formable to all lawe reason did litle serue some mens turne And therefore there was an other caution and ê“uiso that thowghe the poorest maÌ„s testameÌ„te in all EnglaÌ„d hath this prouiso at the ê“bate of the same yet for this testameÌ„te the weighty este I trowe that euer was made in EnglaÌ„d no suche probate or clawse can be fownde either in the one or the other cowrte Yet we nedes muste all this not with staÌ„dinge be borne in hande and borne downe that there was a testamente and wyll formablie framed accordinge to the purpose and effecte of the statute Yet muste the right of the imperiall crowne of Englande be conveyed and carried awaye with the colour and shadowe onlie of a will I saye the shadowe onlie by reason of an other coniecture and presumption vvhiche I shall tell you of Which ys so liuelie and effectuall that I verelie suppose yt wil be verye harde for any man by any good and probable reason to answere and auoyde the same And ys so importante and vehement that this onlie might seame vtterlie to destroye all the aduersaries coniecturall prouffes concerninge the maintenance of this supposed will We saye therefore and affirme that in case there had bene any good and suer helpe and hand faste to take and holde the crowne for the heires of the Ladie Frances by the saide will that the faction that vniustlie intruded the Ladie Iane eldest dawghter to the saide Ladye Frances to the possession of the crowne vvolde neuer haue omitted to take receaue and embrace the occasioÌ„ and benefitt therof to them presentlie offered They neyther wolde nor coulde haue benâ— driuen to so harde aÌ„d bare a shifte as to colour theire vsurpatioÌ„ against the late Quene Marie onlie and our gratious Souereigne Elizabethe A greate pÌ„sumptioÌ„ agaiÌ„ste the supposed vvill for that the late pretensed Q. Iane did not vse the benefitt of the same agaiÌ„st the Quene of Scoâ—es and others