the kiÌ„ge Yet vntill suche time as the Kinge be intitled ther vnto by matter of recorde the inheritance remaynethe in the alien by the opinioÌ„ of all men And so ys a verie alien capable of inheritance within this realme And then it muste nedes fall ovvte plainlie that your generall maxime vvhere vpon you haue talked and braged so muche ys novve become no rule of the common lavve of this realme And yf it be so then haue you vttered very many vvordes to small purpose But yet let vs see farther vvhether there be any rule or maxime in the coÌ„mon lavve that maye seame any thinge like to that rule Whervpon any matter maie be gathered against the title of the saide Marie Quene of Scotland There ys one rule of the coÌ„mon lavve in vvordes somevvhat like vnto that vvhiche hathe bene alleaged by the aduersaries Whiche rule ys sett forthe and declared by a statute made An. 25. of Kinge Edwarde the thirde Whiche statute recitinge the dovvbte that then vvas Whether infantes borne ovvte of the allegiance of Englande shoulde be able to demaunde any heritage vvithin the same allegiaÌ„ce or no Yt vvas by the same statute ordained that all Infantes inheritours Whiche after that time shoulde be borne owte of the allegiance of the kinge whose father and mother at the time of theire birthe were of the faithe and allegiance of the kinge of Englande shoulde haue and enioye the same benefittes and aduantages to haue aÌ„d carrie heritage within the saide allegiance as other heires shoulde Where vpon yt ys to be gathered by dewe and iuste construction of the statute and so hathe bene heretofore coÌ„monlie taken that the common lawe alwayes was and yet ys that no person borne owte of the allegiance of the kinge of Englande whose father and mother were not of the same allegiance shoulde be able to haue or demaunde any heritage within the same allegiance as heire to any person Whiche rule I take to be the same supposed maxime whiche the adâ—saries do meane But to stretche yt generallie to all inheritances as the aduersaries wolde seame to do by anie reasonable meanes caÌ„ not be The statute of Edvvard 3. anno 25. touchethe inheritaÌ„ce and not purchasse For as I haue saied before euery straÌ„ger and alien borne maye haue and take inheritance as a purchasâ—er And if an alien do marrie a woman inheritable the inheritance therby ys bothe in the alien and also in his wife And the alien therby a purchasâ—er No man dowbteth but that a denizen maye purchasse landes to his owne vse 11. H. 4. fol. 25. but to inherite landes as heire to any person vvith in the allegiance of Englande he can not by any meanes So that yt seamethe verie plaine that the saide rule bindethe also denizens and dothe onlie extende to discentes of inheritance and not to the hauinge of anie landes by purchasse Nowe will we then consider whether this rule by any reasonable coÌ„struction can extende vnto the ladie Marie the Quene of Scotlande for and concerninge her title to the crowne of EnglaÌ„d Yt hathe bene sayed by the aduersaries that she was borne in Scotlande whiche realme ys owte of the allegiance of Englande her father and mother not beinge of the same allegiance And therefore by the saide rule she ys not inheritable to the crowne of this realme Althowghe I might at the begininge verie vvell and orderlie denie the consequente of your argumente yet for this time we will firste examine the antecedente whether yt be trewe or no And then consider vpon the consequenâ—e That the Quene of Scotlande was borne in Scotlande Scotlande ys within the allegiaÌ„ce of Englande yt must nedes be graunted but that Scotlande ys owte of the allegiaÌ„ce of EnglaÌ„de thowghe the saide Quene of Scotlande and all her subiectes of Scotlande vvill stovvtely affirme the same yet there are a greate nomber of men in Englande both learned and others that be not of that opinion beinge ledd and persvvaded there vnto by diuers histories registers recordes aÌ„d instrumeÌ„tes of homage remaininge in the treasurie of this realme Wherin ys mentioned that the kinges of Scotlande haue acknovvledged the kinge of Englande to be the superiour lorde ouer the realme of Scotlande and haue done homage aÌ„d fealtie for the same Which thinge beinge trevve not vvithe standinge yt be comonlie denied by all Scottes men then by the lavves of this realme Scotlande muste nedes be accompted to be vvith in the allegiance of Englande And altowghe sins the time of kinge Henrie the sixt none of the kinges of ScotlaÌ„de haue done the saide seruice vnto the kinges of Englande Yet that ys no reason in our lavve to saye that therefore the realme of Scotlande at the time of the birthe of the saide Ladye Marie Quene of Scotlande beinge in the thirtie and fovverthe yeare of the reigne of our late Souereigne lorde kinge Henrie the eight vvas ovvte of the allegiance of the kinges of Englande For the lavve of this realme ys verie plaine that thovvghe the tenaunte do not his seruice vnto the lorde yet hathe not the lorde therby lost his seigneurie for the lande still remainethe within his fee and seigneurie that not with standinge The lorde losethe not his sâ—igniâ—rie though the tenaÌ„te dothe not his seruice But paraduenture some vvill obiecte and saye that by that reason FraÌ„ce shoulde likevvise be sayed to be with in the allegiance of Englande for as muche as the possession of the crovvne of France hathe bene vvithin a litle more then the space of one hundred yeares novve laste paste lavvfullie vested in the kinges of EnglaÌ„d Whose right and title still remainethe in the Quenes maiestie that novve ys To that there ys a greate difference betvvene the right and title vvhiche our Souereigne ladie claimethe to the realme of France aÌ„d the right and title vvhiche her highnes claimethe to the realme of ScotlaÌ„d Althowghe yt be trevve that the kinge of Englande hathe bene lavvfullie possessed of the crowne of France vvhose right and title by iuste and lavvfull succession ys deuolued vnto our saide Souereigne ladie Yet duringe suche time as her highnes by vsurpation of other ys dispossessed of the saide realme of France the same realme by no meanes can be saide to be with in her highnes allegeaÌ„ce especiallie coÌ„sideringe howe that sins the time of vsurpation the people of France haue wholie forsaken theire allegeance and subiection whiche they did owe vnto the kinges of EnglaÌ„de And haue geuen and submitted them selues vnder the obedience and allegeance of the vsurpers But as for the realme of Scotlande yt ys oterwise For the title which our Souereigne Ladie and Quene and her ê“genitours haue claimed vnto the realme of ScotlaÌ„de ys not in the possession of the lande and crowne of Scotlande but onlie vnto the seruice of homage and fealtie for the same And althowghe the kinges of Scotlande sithe the time of kinge Henrie the eight haue intermitted to
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
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
of this place ye have omitted Wherefore as this place servethe nothinge for any absolute electioÌ„ of a kinge the which you seame especiallie to regarde aÌ„d grownde your self vpoÌ„ so dothe yt as we have shewed as litle relieve you to prove thereby your conclusions especiallie againste the ordinarie succession either of a straÌ„ger or of a woman that ye wolde gather and coÌ„clude owte of the same Thus have we sufficientlie answered the place of Deuteronomie for this one purpose The other two aucthorities maye be muche more easelie answered The people mente nothinge else by theire sayde wordes spoken to David An anssvvere to the secoÌ„de of Samuel c. 5. but that they were of the seede of Abraham Isaac and Iacob as well as he and intended with trevve and sincere hartes vnfainedlie to agnyse him as theire cheif lorde aÌ„d Sovereigne For at that time the tribe of Iuda onlie wherof kinge Dauid came by liniall discente did acknowledge hym as kinge Novve the residevve which before helde vvith Saules sonne did also incorporate aÌ„d vnite them selues to the saide kingdome Yf this man loke well vpon the matter he shall finde I trowe that the Quene of Scottes maye aswell call her seâ—f the bones and fleshe of the noble Princes of Englande as this people call them selves the bones and fleshe of kinge Dauid But yet the greate terrible batteriÌ„ge caÌ„noÌ„ Athalia ys behiÌ„de She beinge in possessioÌ„ of the kiÌ„gdome seaueÌ„ yeares was iustlie thrust owte by cause she was an alien we maye then sayethe this man iustelye denye the Quene of Scottes before hande the right of that which yf she had in possession she coulde not iustelye enioye Yet Syr yf the Quene of Scottes be no alien as we have sayed then ys your cannon shotte more fearefull then dangerouse We denie not but that Athalia was lavvfullie deposed but we beseache you to tell vs your authours name that dothe assigne the cause to be suche as ye alleage Suerlie for my ê‘te after diligente searche I finde no suche authours Truthe yt ys that Iosephus writeth as ye do Iosep. Iud. antiq li. 9 c. 6. that she discended by the mothers side of the Tyrians and Sydonians yet never thelesse he assignethe no suche cause as ye do And as ye are in this your pretie poisoned pamflett the firste I trowe of all christian men I Will not excepte eyther latine or greke vnlesse yt be some fantastycall fonde and newe vpstarte Doctours as Maistre Knoxe or some the like neyther Iewe Chaldyan nor Arabyan that hathe thus strangelye glosed and deformed this place of the holie scripture againste the ordinarie succeffion of vvomen Princes so are you firste also A nevve fovnde aÌ„d mad inter pretation who ys an alieÌ„ made by the aduersarie of all either deuines or lawiers throughe owte the world that hathe sett forthe this newe fownde folishe lavve that the kinges childe muste be counted an AlieÌ„ vvhose father and mother are not of the same and one coÌ„trey Yf the Frenche or Spanishe kinge chance to marrye an Englishe vvoman or the kinge of Englande to marrie a freÌ„che a Spanishe or any other coÌ„trey woman theire children by this newe Lycurgus are Aliens aÌ„d so coÌ„sequentlie in all other nations all suche as haue bene shal be aliens by this your newe oracle For vvhat other cause shewe you that this Athalia was an alien but by cause her mother vvas an alien Genus ducens Iosep. li. 9. cap. 7. say you a Tyrijs Sidonijs coÌ„minge by liniall discente by the mothers side from the Tyrians and Sydonians Kinge Achas maried her mother dawghter to Ithoball kinge of the saide Tyrians and Sydonians This Athalia vvhom Iosephus callethe Gotholia Achas dawghter married Ioram kinge of Iuda her brother called also Ioram beynge kinge of Israël after the decease of his father Achas Athalia was no alieÌ„ amoÌ„ge the Iewes So then ye see that this Athalia vvas no more an aliâ—n amoÌ„ge the Iewes then kinge Edbaldus was the sonne of Bertha a Frenche womaÌ„ and of kinge Ethelbertus the firste christian kinge of the Englishe nation No more then vvas the noble kiÌ„ge Edward the thyrde borne of a Frenche vvoman No more then Quene Marie vvas No more then shoulde haue bene the issewe of the saide Quene Marie or our gratious Souereignes issewe shulde be in case she maried with any forren PriÌ„ce I ê‘ceaue that your fellowes that wolde faine make kinge Shephen and kinge Henrie the seconde and Arthure nephewe to kinge Richarde the firste aliens had but rude dull and grosse heades in comparisoÌ„ of your fine subtile and highe fetches Yf I shoulde nowe desire your patience not withstandinge the allegatioÌ„s of all your diuinitie to be conteÌ„te a while and towchinge this matter to hearken to the moste excellente ciuilian Vlpian thowghe he were an Ethnick ye wolde parchance make litle accompte of him and be angrye withe me for producinge a prophane witnes against you And yet trewlye in this I offerre neither to you nor yet to godes holye vvorde any iniurie in the vvorlde For Christe his highe and deuine doctrine dothe not subuerte nor impugne humane oâ— ciuill policie beynge not repugnaÌ„te to his expresse worde wyll Let vs then heare whoÌ„ the saide Vlpian maketh an Alien Who is an alieÌ„ by Vlpian whoÌ„ he definethe to be an Alien He ys a Campane sayethe this Vlpian that ys borne of father and mother beinge Campanes Yea yf his father be a Campane and his mother be a Puteolane yet ys the childe a citezin or burgesse of Campanie And then he shewethe farther that in some contreyes as amonge the Ilians the Delphians and them of Pontus the childe shal be cownted to be origiginallye of the mothers and not of the fathers contreye His wordes in latine as he wrote them are theis L. 1. ff ad muni c. 1. pec Qui ex duobus Campanis parentibus natus est Campanus est Sed si ex patre Campano matre Puteolana aequè municeps Campanus est nisi forte priuilegio aliquo materna origo censeatur tunc enim maternae originis erit municeps vtopte Iliensibus concessum est vt qui matre Iliensi est sit eorum municeps Etiam Delphis hoc idem tributum conseruatum est Celsus etiaÌ„ refert ponticis ex beneficio Pompeij Magni compepetere vt qui PoÌ„tica matre natus esset Poticus esset Whiche his sayenge ys directe against you for this your strange declaration of Alienigenâ— an alien Well yf neither the declaration of Vlpian nor yet the practise of the worlde most conformable also to reason nor any thinge else will satisfie you vnlesse yt be deriued and taken owte of holye scripture we are coÌ„tente to ioyne issewe with you aÌ„d to be tried by the same onlye Matt. 1. Iosue 6. Christe came liniallie of Booz whoÌ„ SalmoÌ„ begatt of Raab as the moste coÌ„mon opinion of writers ys that
succession after the deathe of the parentes that dye intestate ys duë to the children vvhiche succession apperteinethe as vvell to degrees remoued as to the firste L. luciê° ff de heredi Instit. l. iusta et l. natoruÌ„ l. liberoruÌ„de verbor signifie Yea in all causes fauorable as ovvrs ys this vvorde Sonne Filius conteinethe the nephevve thowghe not by the propertie of the voice or speache yet by interpretation admittable in all such thinges as the lavve disposethe of As tovvchinge this worde Ensans in Frenche vve saye that yt reachethe to other descendants L. 2. §. Si mater ad S. C. Tertu l. filiê° ad S. C. as well as to the firste degree Wherein I do referre me to suche as be exê‘te in the saide toÌ„gue We have no one worde for the barenes of * Enfants in franche couÌ„teruailethe thys vvorde liberi in laten our englishe tongue to counterpaise the saide frenche worde Enfans Maced l. senat de ritu nupt l. ê™ si nepotes ff de test tutel cuÌ„ notaâ—is ibidem or the laten worde Liberi Therefore do we supplie yt as well as we maye by this worde children The Spaniardes also vse this worde InfaÌ„tes in this ample sorte wheÌ„ they call the nexte heire to the heire apparente the infante of Spaine Eaven as the late deceased lorde Charles of Austriche was called his father and grandfather then livinge Yf then the originall worde of the statute declaringe the saide rule maye naturallie and properlie appertine to all the descendants why shoulde we straine and binde yt to the firste degree onlie otherwyse then the nature of the worde or reason will beare For I suppose verelie that yt will be verie harde for the adversarie to geave any good and substanciall reason d. l. liberorum whie to make a diuersitie in the cases But towchynge the contrarie there are good and probable considerations whiche shall serve vs for the seconde cause As for that the grandfathers call they re nephewes The grandfathers cal theire nephevves sonnes· as by a more pleasante plausible name not onlie theire chyldren but theire soÌ„nes also for that the sonne beinge deceased the grand father surviuinge not only the grand fathers affectioÌ„ but also the suche right title and intereste that the sonne hathe by the lawe and by proximitie of bloudde growe and drawe all to * L. Gallus §. instituens ff de libert post l fi C. d. impub. alijs subst cap. iaÌ„ 1. q. 4. The father and sonne are coÌ„pted in person and fleshe inmanicre one the nephewe Who representethe and suppliethe the fathers place the father aÌ„d the sonne beinge compted in parson and in fleshe in manier but as one Whie shall then the bare and naked coÌ„sideration of the externall and accidentall place of the birthe onlie seuer and sonder suche an intire inwarde and naturall coniunction Add there vnto the manye and greate absurdities that maye herof springe and ensewe The greate absur litie that might followe in excludiÌ„ge the trâ—we and right successor for the place of his birthe onlie Diuerse of the kinges of this realme as well before the time of kinge Edwarde the thirde in wose time this statute was made as after him gaue theire dawghters owte to forraine and some tymes to meane Princes in mariage which thei wolde never soo ofteÌ„ times have done if they had thowght that while thei wente abowte to sett forthe and aduaÌ„ce theire issewe theire doinges shoulde haue tended to the disheritynge of them from so greate large and noble a Realme as this ys Whiche might have chaunced yf the dawghter hauinge a sonne or dawghter had died her father liuiÌ„ge For there should this supposed maxime have bene a barre to theire children to succedde theire grand father This absurditie wolde have bene more notable yf yt had chaâ—â—ced abowte the time of kinge Henrie the seconde or this kinge Edwarde or kinge Henrie the firste and sixt when the possessions of the crowne of this realme were so amplie enlarged in other contreyes beyonde the seas And yet never so notable as yt might have bene hereafter in our freshe memorie and remembrance yf any suche thinge had chaunced as by possibilitie yt might haue chaunced by the late mariage of kinge Philippe and Quene Marie For Admittinge theire dawghter married to a Forren Prince shoulde have died before them she leauinge a sonne survivinge his father and grand mother they hauinge none other issewe so nighe in degree then wolde this late framed maxime haue excluded the same sonne lameÌ„tablie and vnnaturallie from the succession of the crowne of Englande and also the same crowne from the inheritance of the realmes of Spaine of both Sicilies with theire appourtenances of the Dukedome of Millaine and other landes and dominions in Lumbardie and Italie as also from the Dukedomes of Brabante Luxembourge Geldres Zutphan Burgundye Friselande from the contreyes of Flaunders Arthois Hollande Zelande and Namours and from the newe fownde landes parcell of the saide kingdome of Spaine Whiche are vnlesse I be deceaued more ample by doble or treble then all the contreyes nowe rehearsed All the whiche contreyes by the foresaide mariage shoulde haue bene by all right deuolued to the saide sonne yf anye suche childe had bene borne Yf either the same by the force of this iolie newe founde maxime had bene excluded from the crowne of Englande or the saide crowne from the inheritance of the fore saide contreyes Were there any reason to be yelded for the maintenaÌ„ce of this supposed rule or maxime in that case Or might there possiblie rise any coÌ„moditie to the realme by obseruinge there in this rigorouse pÌ„tensed rule that shoulde by one hundred ê‘te counteruaile this importable losse aÌ„d spoile of the crowne and of the lawfull inheritour of the same But perchance for the auoidinge of this exceptioÌ„ limited vnto the bloude royall some will saye that the same was but a priuilege graunted to the kinges children not in respecte of the succession of the crowne but of other landes An evasion avoided preteÌ„dinge the priuilege of the kinges childreÌ„ not to be in respecte of the crovvne but of other laÌ„ds descendinge to them from theire Auncettours Whiche altowghe we might verie well admitte and allowe yet can yt not be denied but that the same privilege was graunted vnto the kinges children and other descendants of the bloudd royall by reason of the dignitie and worthines of the crowne which the kinge theire father did enioye And the greate reverence which the lawe geuethe of dewtie therevnto And therefore yf ye wolde goe abowte to restraine and withe drawe from the crowne the privilege which the lawe geuethe to the kinges children for the crownes sake ye shoulde do therein contrarye to all reason and against the rules of the arre of reasoninge which saiethe that propter quod vnuÌ„quodque illud magis Propter ê™ vnuÌ„ quodque illud
And no dovvbte in case she had any children by the Emperour they shoud haue bene heires by succession to the crovvne of EnglaÌ„de After vvhose deathe she retorned to her father yet did kinge HeÌ„ry cause all the nobilitie by an expresse othe to embrace her after his deathe as Quene olid and after her her children Not longe after she vvas Married to Geffrey Plantagenet a Frencheman borne Erle of Anievve vvho begart of her this Henrie the seconde beinge in France Where vpoÌ„ the saide kinge did reuiue aÌ„d renevve the like othe of allegeaÌ„ce asvvell to her as to her sonne after her Withe the like false persvvasion the aduersarie abusethe him The like foÌ„de imagination to vvchyngeâ—k Rich. hu nephewe self and his Reader towchinge Arthur Duke of Britanie nephewe to kinge Richarde the firste As thowghe for sowthe he were iustlie excluded by kinge IohnÌ„ his vncle by cause he was a forrainer borne Flores historiarum an 1153. Yf he had sayed that he was excluded by reason the vncle owght to be preferred before the nephevve thovvghe yt shoulde haue bene a false allegation and plaine against the rules of the lavves of this realme as maye vvell appeare amoÌ„ge other thinges by kinge Richard the secoÌ„d who succeded his grandfather kinge Edwarde the thirde which Richarde had diâ—ers worthy aÌ„d noble vncles who neither for lacke of knowledge coulde be ignoraÌ„te of their right Diuersitie of opinioÌ„s towchinge the vncle aÌ„d nephewe whether of them ovvght to be preferred in the royall gouernemeÌ„t neither for lacke of Frendes cowrage aÌ„d power be enforced to forbeare to chaleÌ„ge theire title aÌ„d intereste yet shoulde he haue had some countenance of reason aÌ„d ê“babilitye by cause many argumeÌ„tes aÌ„d the authoritie of many learned aÌ„d notable ciuiliaÌ„s do coÌ„curre for the vncles right before the nephewe But to make the place of the natiuitie of an inheritour to a kingdome a sufficient barre against the right of his bloude Polid. yt seameth to haue but a weake and slender holde and grovvnde And in our case yt ys a moste vnsure and false grownde seinge yt ys moste trewe that kinge Richarde the firste as vwe haue saide declared the saide Arthur borne in Britanye and not sonne of a kinge but his brother Geffreys sonne Duke of Britanye heire apparente Flores his an 1190. his vncle IohnÌ„ yet liuinge and for suche a one ys he taken in all our stories and for suche a one did all the vvorlde take him after the saide kinge Richarde his deathe Neither vvas kinge IohnÌ„ taken for other then for an vsurper by excludinge him The possessioÌ„s of the crowne of â—nglands that were beyoÌ„de the seas seased into the Frenche kiÌ„gs handes for the murther of Arthur and aftervvarde for a murtherer for imprisoninge him and priuelie makinge him avvaye For the vvhiche facte the Frenche kinge seased vpon all the goodlie contreies in France belonginge to the kinge of Englande as forfeited to him beinge the cheif lorde By this ovvtragiouse deede of kinge IohnÌ„ vve loste Normandie vvith all and our possibilitie to the inheritance of all Britanie the right and title to the saide Britanie beinge devve to the saide Arthur and his heires by the right of his mother Constance And thovvghe the saide kinge IohnÌ„ by the practise and ambitioÌ„ of Quene Elenour hys mother aÌ„d by the speciall procuremente of Huberte then Archbusshoppe of Caunterburie and of some other factious persons in Englande preven tid the saide Arthur his nephewe as yt was easie for hym to do havinge gotten into his handes all hys brother Richardes treasure besides many other rentes then in Englande And the saide Arthur beinge an enfante and remayninge beyonde the sea in the custodie of the saide Constance Yet of this facte beinge againste all iustice aswell the saide Archebusshoppe as also manie of the other did after moste earnestlie repente consideringe the crewell and the vniuste puttinge to deathe of the saide Arthur procured Polid. lib. 15. Flor. histor an 1208. and after some authours comytted by the saide IohnÌ„ hym self which moste fowle and shamefull acte the saide IohnÌ„ neaded not to have comitted yf by forraine birthe the saide Arthur had bene barred to inherite the crowne of EnglaÌ„de And muche lesse to have imprisoned that moste innocente ladie Elenour Sister to the saide Arâ—hur in Bristowe castle where she miserablie ended her life Yf that gaâ—e Maxime wolde have serued to have excluded theis two children by cawse theye were straÌ„gers borne in the parteis beyonde the seas Yea yt appearethe in other doinges also of the saide time and by the storie of the saide IohnÌ„ that the birthe owte of the legeance of Englande by father aÌ„d mother forraine was not taken for a sufficient repulse and reiection to the right and title of the crowne For the Barones of EnglaÌ„de beinge then at dissention with the saide kinge IohnÌ„ renowncinge their allegeance to hym receaued Lewes the eldeste Sonne of Phillippe the frenche kinge to be theire kinge in the right of Blanche his wife which was a stranger borne Albeit the lawfullnece of the saide Richard and dawghter to AlphoÌ„s kinge of castill begotten on the bodie of Elenour hys wife one of the dawghters of kinge Henrye the seconde and sister to the saide kinge Richarde and kinge IohnÌ„ Whiche storie I alleage onlie to this purpose thereby to gather the opinion of the time * Levves the fraÌ„che kinges sonne claimed the crovne of this realme iÌ„ the title of his vvife that forraine birthe was then thowght no barre in the title of the crowne For otherwise howe coulde Lewes of France †Pro here ditatevxoris iâ—re scilicet neptis Reg Io. vsque â—d mortem 〈◊〉 necessitas exigeret decertabâ— pretende title to the crowne in the right of the saide Blanche hys wife beinge borne in Spaine Theis exaÌ„ples are sufficieÌ„te I suppose to satisfie and contente any man that ys not obstinatelie vvedded to his ovvne fonde fantasies and frowarde friuoulous imaginations Flores histo An. 1216. or otherwise worse depâ—aued for a good suer aÌ„d substanciall interpÌ„tation of the coÌ„mon lawe And yt were not altogether froÌ„ the purpose here to coÌ„sider aÌ„d weighe with what aÌ„d howe greauouse plagues this realme hath bene ofte afflicted aÌ„d scowrged by reason of wroÌ„gfull aÌ„d vsurped titles I will not reuiue by odiouse rehearshall the greatnes aÌ„d noÌ„ber of the same plagues aswell otherwise as especiallie by the contentioÌ„ of the noble howses aÌ„d famelies of yorke aÌ„d LaÌ„caster â–ª Seinge yt ys so fortunatelie and almoste with in maÌ„s remeÌ„braÌ„ce extiÌ„ctâ— aÌ„d buried Haroldê° muneribê° genore fretê° regni diadema inuasit HeÌ„r Hunt histâ— Angliae li. 6. I will nowe putt the gentle Reader in remeÌ„braÌ„ce of those onlie with whose vsurpinge titles we are nowe pÌ„sentlie in haÌ„de And to begiÌ„ne with the moste auncient Cui regnum iure hereditario debebatur Ealredus Rieuall in hist. R. Angl. ad H. 2. what