good reason and lawe to stande at defence and onely to auoide as easely we may their obiections which principally and chiefly are grounded vpon the common lawes and Statutes of this Realme yet for the bettering and strengthening of the same we shal lay forth sundrie great and inuincible reasons coÌ„ioyned with good and sufficient authoritie of the law so approued and confirmed that the Aduersaries shal neuer be able iustly to impugne them And so that we trust after the reading of this Treatise and the effectes of the same wel digested no maner of scruple ought to remaine in any indifferent mans hart concerning her right and Title Whose expectation and conscience allthough we truste fully in this Discourse to satisfie and doubt nothing in the worlde of the righteousnes of our cause yet must we nedes confesse the manner and forme to entreate therof to be ful of difficultie and perplexity For such causes of Princes as they be seldome and rare so is it more rare and strange to finde them discoursed discussed and determined by any lawe or statute albe it nowe and then some statutes tende that waye Neither do our lawes nor the Corps of the Romaine and Ciuil law lightly meddle with the princelie gouernement but with priuate mens causes And yet this notwithstanding for the better iustification of our cause albe it I denie not but that by the coÌ„mon law it muste be knoweÌ„ who ought to haue the Croune and that the common lawe muste discerne the right aswel of the Croune as of subiectes yet I saye that there is a greate difference betwene the Kings right and the right of others And that the Title of the Croune of this Realme is not subiect to the rules and principles of the common lawe of this Realme as to be ruled and tryed after such order and course as the inheritance of priuate persons is by the same For the prous whereof let vs consider what the common lawe of this Realme is and how the rules thereof be grounded and do take place It is very manifeste and plaine that the common lawe of this Realme of England is no law writteÌ„ but grounded only vpon a common and generall custome throughout the whole realme as appeareth by the Treatise of the auncient and famous Writer of the lawes of the realme named Ranulphus de Glanuilla who wrote in the time of the noble King Henrie the second of the law and Custome of the realme of England being then and also in the time of the raigne of King Richarde the firste the chiefe Counsailour and Iustice of the same King and also by the famouse Iustice Fortescue in his booke whiche he wrote being Chauncellour of England De laudibus Legum Angltae And by 33. H. 6.51 and by E. 4.19 Whiche Custome by vsage and continuall practise heretofore had in the Kinges Courts within this Realme is only knowen and mainteined wherein we seeme much agreable to the olde Lacedemonians who many hundred yeres past most politikely and famously gouerned their common Wealth with lawe vnwritten whereas among the Athenians the writen lawes bare al the sway This thing being so true that with any reason or good authoritie it can not be denied then we are farther to consider whether the Kinges Title to the Croune can be examined tried and ordered by this common Custome or no. Yf ye say it may then must ye proue by some recorde that it hath bene so vsed otherwise ye only say it and nothing at all proue it For nothing can be said by lawe to be subiecte to any custome vnlesse the same hath ben vsed accordingly and by force of the same custom I am wel assured that you are not able to proue the vsage and practise thereof by any record in any of the Kings courts Yea I wil farther say vnto you and also proue it that there is no one rule general or special of the common lawe of this Realme which ye â—â—ther haue shewed or can shewe that 〈◊〉 bene taken by any iuste construction to 〈◊〉 tende vnto or bind the King or his Crouâ—â—â— I wil not denie but that to declare and see forth the prerogatiue and IurisdictioÌ„ of the King ye may shewe many rules of the lawe but to binde him as I haue sayde ye can shewe none Ye say in your booke that it is a Maxime in our lawe most manifest that who so euer is borne out of England and of father and mother not being of the obedience of the King of England can not be capable to inherite any thing in England Whiche rule being general without any wordes of exception ye also say must nedes extende vnto the Croune What you meane by your law I knowe not But if you meane as I thinke you do the common lawe of England I answere there is no such Maxime in the common lawe of this Realme of Englande as hereafter I shal manifestly proue But if it were for argumentes sake admitted for this time that it be a Maxime or general rule of the coÌ„mon law of England yet to say that it is so general as that no exception can be taken against the same rule ye shewe your selfe either ignorant or els very carelesse of your creditte For it doth plainely appeare by the Statute of 25. E. 3. being a declaration of that rule of the Lawe whiche I suppose ye meane terming it a Maxime that that rule extendeth not vnto the Kinges children Whereby it moste euidently appeareth that it extendeth not generally to al. And if it extende not to binde the Kinges children in respect of any inheritance descended vnto them from any of their Auncestours it is an Argument à fortiori that it doth not extende to binde the King or his Croune And for a ful and short answere to your Authorities sette foorth in your marginall Notes as 5. Ed ward 3. tit Ayle 13. Ed war. 3. tit Bref 31. Edw. 3. tit Coson 42. Ed war. 3. fol. 2. 22. Henric. 6. fol. 42.11 Henric. 4. fol. 23. 24. Litleton ca. vilenage it may plainly appeare vnto all that will reade and pervse those Bookes that there is none of them al that doth so much as with a peece of a word or by any colour or shadow seeme to intende that the Title of the Croune is bounde by that your supposed general rule or Maxime For euerie one of the said Cases argued and noted in the said Booke are onely concerning the dishabilitie of an Alien borne and not Denizon to demaunde any landes by the lawes of the Realme by suite and action onely as a subiect vnder the King and nothing touching any dishabilitie to be laied to the King himselfe or to his subiectes Is there any controuersie about the Title of the Croune by reason of any such dishabilitie touched in any of these Bookes No verely not one worlde I dare boldely say As it may most manifestly appeare to them that wil reade and pervse
to beleue that it is now at length found and practised by such a Ladie and Princesse froÌ„ whose person her noble birth her honorable state and priÌ„cely educatioÌ„ and the whole trade of al her godly and vertuous life past do farre repel and driue away al such suspicion and coÌ„iectural presumptioÌ„s And whom al Christian Princes haue had in high estimation and worthy price for her great prudeÌ„cie and many other Princely qualities the which ful goodly do adorne and beautifie the grace and comlines of her Roial personage Doth any man or woman fal to extreme lewdnes al at ones No verily We doo both rise and fall by degrees aswel to all singuler vertues as to al extreme naughtines Let them shew me then if they can any euil doinges in al her former life wherevpon to make a sinister diuination to fasten vpoÌ„ her their treacherous accusations What vnsemely outragiouse and vnprincely parte hath she hitherto played Lette the noble Realme of France testifie of her demeanour and behauiour Let her owne subiects that be not her opeÌ„ enemies and her duble duble traitours accuse her hardly and spare her not But yet let them wel thinke withal at their better leisure and when they shal be better aduised whether there be any indifferent person who wil not both detest and vtterly abhorre the peruers and naughty nature of such vngrate traitours Or that wil not thinke it farre vnlike that this noble Queene who hath so gratiously pardoned them duble and treble treasons would euer finde in her harte so to vse her owne deare husbande This is vnlikely this is incredible and the more al circumstaÌ„ces coÌ„sidered For if she had bene desirous to haue ben ridde of him as they falsly and maliciously imagin and report her to haue ben she had good and lawful meanes to serue her turne Albe it he was her head in wedlocke yet was he otherwise but a member of her commoÌ„ Weale subiect to her as to his principal and supreme Gouernesse and to her lawes By the due and ordinary processe and course whereof he might iustly haue bene conuicted condemned and executed aswel for the murther committed vpon Dauid her Secretarie in whose body his dagger was found stabbed as for the imprisoning of the Queene and for the attempting to remoue her from Ciuil gouernment to intrude him selfe thereto and for diuers other the like pageants by him plaid Who can nowe reasonably thinke that where she by lawe and iustice might haue fully satisfied this her falsely surmised will and desire that she would not take the opportunities in this sort offered but omitting them al seeke vnlawful meanes to his destruction This vehement presumption of her innoceÌ„cy is much holpen for that she would not consent to a diuorse betwene her and the Lord Darley as we shal hereafter declare though she were moued therto by a great numbre of her Nobilitie and by such as be now her greatest Aduersaries I adde thereto as a great and an vrgent presumption and token of her innocencie and pure conscience that she voluntarily came into England refusing the offers of diuers of her owne subiectes who besought her Grace to repaire into their quarters profering to preserue her Grace safe therein wher she knew right wel were both the father and mother of the said Lord Darley a Noble Princesse that would not see the blood of her nere Cosen vnreuenged and a worthy sort of men of Nobilitie also who would neither suffer suche a facte to passe and escape vnpunished nor so vertuouse and giltlesse a Queene to remaine without ayde helpe and succour being with Rebelles and Traitours shamefully oppressed and bereaued of her Royal dignitie The worthy saying also of the wise Cassiue is here to be remembred Cui bono Wherby he did signifie that in suche doubtful coniecturall cases a man may make a great ayme and coÌ„iecture against the personne appeached if by the facte dooing he should enioye any speciall profitte emolument or commoditie If the Queene had after his fatal and final ende purchased to her selfe the matching in mariage with any great and mighty Prince for her great aduancement or any other encrease of her honour or aduantage whatsoeuer there had ben some colour and shew whereby one might haue an apparent presumption Againe she was not ignorant but that his death either proceding from such naughtie meanes or otherwise naturally was likely to be a merueilous great let and impediment to her great affaires Among other things the testimonie and coÌ„fession of diuers guyltie as they be reported and executed in Scotland for the said offence which they opeÌ„ly made at the time of their death doth tende much to the aduancing and approbation of her innocencie These men yet peraduenture wil replie and say that these are but slender presumptions And yet were it so that they were of force sufficient they must yeelde to an approued trueth It remaineth now then that we consider how sure and substantial their proufe is Concerning therefore the first parte we wil not altogether denie but that she was somewhat estranged from him and therfore they might haue spared a great sort of then needelesse and friuolous arguments and yet flat and plaine lies withal to prooue the same But fie vpon the crueltie of these accusers who were the very authours them selues and themselues the only workers and bringers to passe of al this discorde training this seely yong Gentleman by ther guilefull and wily circuÌ„uentions wretchedly to conspire with them against his owne deare wife and dradde Souereigne to the most cruell and detestable slaughter of her trustie Secretarie Dauid and to the imprisonnement of the royal person of the very Queene her selfe These and many other like pranks and practises as the reuocation of th' Earle Murray and of other traitours of your allie and affinitie without the Queenes knowledge by the Lorde Darleyes youthful rash and remerariouse deuice to departe the Realme with many other like practises purposes and attemptes for his princely person very vnmete and farre vnsemely ye craftily suppresse and speake no word of for feare of burning your owne clothes I say therefore fie and dubble fie vpon â—e impudencie of these mischieuous traiâ—â—rs now to lay to the Quenes charge and reprochefully to obiect to her the changing â—her minde toward her husbande which rose and began vpon causes for the which they had bene long earst trised vp if they had not fortuned vpon and met with so gratiouse a Mastresse as I knowe and they though vndeseruing it do wel feele that the whole worlde hath very few her like And yet al this your pretensed alienation of her accustomed fauour from him not withstanding her very motherly care for bysides al other respectes though they were not farre different in yeares she was to him not only a loyal Prince a louing and deare wife but a moste careful and tender mother withal was neuer a deale lessed or minished
and defende him against al men that would then after challenge or pursue him as guiltie of the said crime The wihch their doings the Queene considering and fearing dangers imminent and withal calling to mind the sundry and diuers vprours and seditiōs already made against her the wretched and most cruel murther of her Secretarie in her own presence the late strāge and miserable murther of her husbād the distresse the discomforte and desolation wherein she was presently bewrapped the Earles actiuitie in Martial feates and the good and faithful seruice done by him to her mother and to her self fearing some new and fresh sturre and calamitie if she should refuse her Nobilities request though very circūspect and naturally prudent in al her other doinges yet neuerthelesse a woman and especially neuer to that houre ones admonished either opēly or priuately after the Earles acquital that he was guiltie of the said fact nor suspecting any thing therof yelded to that to the whiche these craftie colluding seditious heads and the necessitie of the time as then to her seemed did in a maner enforce her Let them now lay on lode let them now rage and raue against this acquital and mariage let them lie to their owne shame vpō their owne deuifes and doinges thereby to defame their Queene Let them lie that the Erle of Huntley was restored to his fathers patrimonie to procure his sisters consent to the diuorse betwene th' Erle and her which restitution was made not for that cōsideratiō but by cause the Queene thought in her cōscience his father wrongfully cōdemned Let them crie out vpō th' Earle Bothwel for that the sentēce of diuorse was promulged partly by force partly without the iust and vsual order of the law and without sufficiēt proufs Let them cry out vpō him for his violēt taking and deteining the Queene Yet if they cā not precisely proue the Quenes consent to any of his vnlawful actes as hitherto they were neuer able to do then can they not get or gather any iust occasion which is the thing they only seeke for to suspect the Queene of this greuous acte On th' other side it is wel knowē and easy to be proued that this faction did chiefly procure as we haue said aswel the acquital as the supposed mariage and therfore by likelihod was priuie of all other consequent deuises and practises Wherefore they do nothing but blow out and blase to the worlde with their owne foule filthy mouthes their own shame and doe fare like a man that doth thrust a sworde through both his owne sides to pricke a litle and raise but the outward skinne only of his enemie Ye may now wel perceaue gētle Reader that hitherto they haue produced litle matter of credit against their Quene and yet as it appeareth very good matter against them selues and for their owne discredit Nowe may ye therefore easely coniecture and by these their chiefe and principal matters and groundes easely perceaue what accompt is to be made of al the residue of their lewde slanders and what smal force and strength al their whole sayinges do beare They see it they see it wel inough themselues good Reader whereby they wel perceaue and fully vnderstand that they altogether are vnable to beare out and mainteine by reason iustice or law these their outragious and seditious procedinges And therefore they set vpon them the best colour and countenance they can Wherein you shal nowe heare what they did alleage being in England for them selues They say that no man can charge them or the residue of their Nobilitie that they haue gone as much as one onely step from the office and dutie of good subiectes in taking armes against the outragious enormities already committed and to preuent the great dāgers imminēt to the persons of their Queene and her dere sonne to their Nobilitie and to the whole state of their weale publike And that it was no smal harts grief to them to heare what vilanie al Nations thought and openly spake of them for suffering such a Tragical matter to scape vnpunished which thing ingendreth of vs say they among strangers and al forain Nations an ill and sinister opinion of some common consent thereto made by our whole Nobilitie Yea to see also the very Executour thereof him selfe by violent force to take deteine and kepe his and their Souereigne and with mariyng with her to disteine her honour Wherfore to set her Maiestie at freedom out of his bondage to preserue her honour and the personne of her sonne and by due punishment of suche a malefactour to recouer their good name and estimation with the rest and quietnes of their Cōtrey when they had but in vaine attempted aswel al other meanes as by the offring to the Earle singuler battail they were driuen to gather force to resist them who came to the fielde against them with a strong army But he refusing either to wage singuler battail which was then offered to him or to ioyne in battail with their cāpe escaped by flight The Queene in the meanewhile rendred herself into the Nobilities hands there assembled and by them was conueied to Edēborough but afterward they were of very necessitie compelled to sequester her vntil such time as some remedie might be found for these maters into Lochleuē Wher she hauīg now aduised with her self and fully perceued her owne disabilitie to susteme the weight of so great a roome frely and volūtarily by their saying gaue ouer the Croune to her sonne appointing the Earle Murray being at that time out of the Realme to be Regēt therof during her sonnes minoritie Th' Earle Bothwel not long after being by them pursued fled the Realme to escape their handes Now this said resignation by the Queene ones made to her sonne he was forthwith by them solemnly crouned and he as King the Earle Murray as Regent obeyd and the state of both these Regimēts was by Acte of Parlamēt established Whervpō quietnes began to encrease and iustice more and more daily to take place which yet some persons sai thei much enuiyng at to the disturbāce of the same and of the kings authoritie first practised contrary to the said their Acte of Parlament the Queenes deliuerance out of Lochleuen and then shewed them selues in armes But as their attēpt say they was vnlauful so the victory fel against them on our the righteous side Whereby God him self semeth to haue geuē sentēce for the equitie of our whole cause against our Aduersaries These are the principal allegations that these good men haue proposed for the iustification of their proceedinges against the Quene before the Cōmissioners of Englād Finally they say that the moste parte of them selues are for particuler benefits priuately so muche beholding to their said Quene that a number of them could be cōtēted and wel willing if they might preserue Scotland in the state of a Kingdome preseruing also the professiō of true religion with the Kinges person
For the haue in al these their worslipful procedinge against her made suche a hotchepoche suche a minglemangle suche a confuse anâ— disordered Chaos against Iustice and Nature that they them selues were the Accusers they them selues the witnesses they them selues the Iudges and examiners of her cause Is there any honest meaning and gentle natured harte that can once patiently abide and suffer to heare these their taunting and intolerable outragious inueyings and accusations especially of the Earles Murray and MurtoÌ„ the Capiteines ringleaders and chief practitioners thereof against her to whome they are most depely bound aswel for high preferment vndeserued as for diuers pardons of death by manifolde treasons worthely deserued To whom the one of them is by nature and blood albe it base as a brother entierly conioyned And to whome they both ought to be with the rest as to their Irege Ladie most loially subiected Shal they now with the Lord Lindzay be admitted to staine and defile her honour to seeke her harts blood who long sithens had worthely lost ther ingrate chorlishe traiterouse blood if they had not ben preserued by her singuler and incredible clemencie Yet let vs coÌ„sider their precise and most holy forme of Iudgement The Queene was disorderly and rebelliously appreheÌ„ded she was cast in prison not once heard to answer for her selfe most instantly and pitifully crauing audience She was forced and constrained by most vehement and iust feare to geue ouer her Croune and dimisse the regiment to the Earle Murray One great argument of the said constraint and compulsion among other is that she neuer readde such writinges as were offered to her to be by her subscribed nor entred into any couenant or talke for the maintenance of her liuing or safegard of her life Which thing she would neuer by any indifferent mans iudgement haue done if she had freely and voluntarily yelded vp her Regal Dignity Neither can the pretensed ParlameÌ„t be preiudicial to her standing vpoÌ„ no better nor surer grouÌ„d then vpon such as we haue rehearsed and vpon such worshipful letters missiue as are by them I can not tel more falsly or more fondly counterfeited Surely such Traitours as durst laye violent handes vppon their Queene and intrude them selues into the Regal Gouernement will make but smal â–ª curtesie in the faining and forging a letter thereby to worke their purposed mischiefe I would then father demaund of them what authoritie they had to somon and assemble a Parlament And whether this fact of hers supposing she were therein guilty deserueth in her being a Prince and considering how heinously the Lorde Darley had offended her and the Croune of Scotland such extreme punishment to be leuied vpon her for one simple murther especially by them that committed that shameful murther vpon her Secretarie that haue committed so many treasons and daily do committe so many horrible murthers vpoÌ„ the Quenes true louing subiectes How many and how cruel and terrible deathes do such Traitours deserue We haue moreouer to demaund of them whereas they pretende a merueilous and a singuler zeale to religioÌ„ and holy Scripture and to measure al their doinges precisely by Scripture and order thereof what sufficient warrant they haue therein by their priuate authoritie to set violent handes vpon their annointed Prince I find ther that King Dauid was both an adultrer and also a murtherer I finde that God was highly displeased with him therfore Yet find I not that he was therefore by his subiectes deposed And here might I take occasion out of the sacred Scriptures to declaime and discours against your disordered doinges but that it is nedelesse and our matters otherwise growe long But yet consider ye with your selfe you the Earles Murray and Murton with your consociats that euen adiudging the Queene were culpable and in some fault as she is not in this matter whether it had not ben much better and more auaileable to your commoÌ„ wealth and to the state thereof prudently to haue dissembled the matter as your forefathers haue heretofore done in a greater cause then this namely in Duke Robert the Gouernour Kings Roberts brother then to haue permitted your coÌ„mon wealth to haue commen into so miserable and wretched a state as it is now falleÌ„ in and dayly like to be in worse case and worse I suppose it wil be found that it had ben a much better policie to haue reserued the punishment thereof to Gods owne rodde and iustice in this or in an other worlde then to haue taken from him that he hath reserued to his owne only iudgemeÌ„t and to haue geuen to the subiects of other Princes suche a wicked president that if these other subiectes treade fast vppon your steppes there wil shortly fewe Kinges and Princes haue any sure and fast holde of their Sceptre and Roâ—al Dignitie We conclude then against you speake and doe the worste by her that ye can inuent that your proceedinges be not agreable or correspondent to law order and Iustice and therfore to be reuoked and adnulled We say that the common rule of the lawe ought here to take place Spoliatus ante omnia restiâ—uendus est vnlesse where all lawes aswel Gods as mans lawe doe fauour and preferre Princes causes with singuler priuileges and prerogatiues ye haue now espied out a newe law whereby Princes shal haue and enioye lesse benefits and preeminences in their owne defence then other priuate persons We say that for these and many other good and necessary considerations all is voide that ye haue busied your selues about We say that al your dooinges ought to be remoued reuersed and clearly annulled and the Queene wrongfully by you displaced to be restored to her state and former dignitie and honour Then let the whole matter be if there be any iuste cause before competent and meete Iudges to sitte vppon a Prince iustly and orderly heard and determined For as for you especially the Earle Marray and Murton ye are to be charged and chalenged byside al other iust exceptions euen as the principal inuentours mainteiners and workers of this shamefull and cruel murther for the whiche ye haue made al this hurly burly and as I may say stirred heauen and earth against your owne very natural Prince Neither may the Lord Lindzay be heard or suffred to intermedle against her if lawe take place for diuers his demerites among which he standeth charged aswel for that that he was one of the chiefe instrumentes in the slaughter of the Queenes Secretarie Dauid as also in the apprehending and imprisoning of her Grace But I much muse and merueyle how the Bisshoppe of Orkney for shame coulde so presumptuously and heynously inueigh and declaime before the Commissioners of Englande against his Maistresse pretensed mariage with the Earle Bothwell seeinge that he him selfe did celebrate the solemnitie thereof Who also was your onely Bifshop that was present at the Coronation of your newe erected king A man moste apte and ready to serue
bereaue vs of the present Gouernour the hartes and iudgementes of men being no better nor more firmely setled and fixed towards the expectation of a certaine succession then they seme now to be then wo and alas it yrketh my verie harte euen onse to thincke vpon the imminente and almost the ineuitable daunger of this our noble Realme beinge like to be ouerwhelmed with the raging and roring waues of mutual discorde and to be consumed with the terrible fier of ciuil discētion The feare whereof is the more by reason already in these later yeares some flames thereof haue sparkled and flusshed abrode and some parte of the rage of the sayd fluddes haue already beaten vpō the bankes I meane the hot contention that hath bene therein in so many places and among so many persons of bookes also that haue bene spread abrode and daily are spread being framed affectionately and sounding according to the sinister opinion of euery mans priuate appetite Seing therefore that there is iust cause of feare and of great danger likely to happen by this varietie of mens iudgementes so diuersely affected as wel of meane men as of greate personages I take it the parte of euery true Englishman to labour ad trauaile eche man for his possibilitie and for suche talente as God hath geuen him to helpe in conuenient tyme for the preuenting of the imminent daunger We knowe what wit what policie what paines what charges menne imploie to prouide that the Temmes or sea doo not ouerflowe such places as be moste subiecte to daunger We knowe what politike prouision is made in many good Cities and townes both to foresee that by negligence there ryse no dangerouse fiers and yf they chaunce with al diligence to represse the rage thereof Wherein among other his prudente dooinges Augustus the Emperour is commended for appointing at Rome seuen companies ordinarily to watche the Citie for the purpose aforesaide Wherevnto he was enduced by reason the Citie was in one daye in seuen seuerall places sette on fier And shal not we euery man for his his parte and vocation haue a vigilant care and respecte to the extinguishement of this fier already sprong out that may if the matter be not wisely foreseen destroie subuert and consume not one Citie onely but importe an vniuersall calamitie and destruction Which to represse one ready and good way seemeth vnto me if men may knowe and be throughly persuaded in what person the right of the succession of the Croune of this our Realme doth stande and remaine For now many men through ignorance of the said Right and Title and also the same being depraued by certaine sinister persuasions in some bookes wherevnto they haue to lightly geuen creditte be caried away from the right opinion and good hart that they otherwise would and should haue The whiche kind of men I doo hartely wishe from their said corrupte iudgemente to be reuoked and shal in this Treatise doo my beste indeuour to remoue not presuming vpon my self that I am any thing better able then others this to do for I knowe my owne infirmitie but being glad and willing to impart vnto others such motiues as vpon the reading of such bookes which of late haue ben set forth by the Aduersaries and after the diligent weying of diuers argumentes to the contrarie seeme vnto me sufficient to satisfie any honest and indifferent man that is not obstinately bent to his owne wilfull affections or to some other sinister meaning and dealing We say then and affirme that the right Heire and Successour apparent vnto the Croune of this Realme of England is at this time such a one as for the excellent giftes of God and nature in her most princely appearing is worthie to inherit either this noble Realm or any other be it of much more dignitie and worthines But nowe I claime nothing for the worthines of the person whiche God forbid should be any thing preiudiciall to the iuste title of others Yf most open and manifeste right iustice and title do not concurre with the worthines of the person then let the praise and worthines remaine where it is and the right where God and the lawe hath placed it But seing God Nature and the law doth call the person to this expectation whose interest and claime I do now prosequute I meane the right excellēt Ladie Ladie Marie Queene of Scotlande I hope that when her right and iuste title shal be throughly heard and cōsidered by the indifferent Reader if he be persuaded already for her right he shal be more firmely setled in his true and good opinion and that the other parties being of a contrarie minde shall finde good causes and groundes to remoue them from the fame and to geue ouer and yelde to the truthe Her Graces Title then as it is moste open and euidente so it is moste conformable to the lawe of God of Nature and of this Realme And cōsequently in a manner of all other Realmes in the worlde as growing by the nearest proximitie of the Roial blood She is a Kinges and a Queenes daughter her selfe a Queene daughter to the late King Iames of Scotlande sonne to Ladie Margarete the eldest Syster to our late Soueraigne Kyng Henrie the Eight Whose daughter also the Ladie Lenoux is but by a later husbande the Ladie Frauncis late wife to Henrie Marques Dorsette afterwarde Duke of Suffolke and the Ladie Elenour late wife to the Earle of Cumberlande and their Progenie proceedeth from the Ladie Marie Dowager of France yongest Sister of the said King Henrie late wife to Charles Brandon Duke of Suffolke I might here fetche foorth olde farne dayes I might reache backe to the noble and worthie Kinges long before the Conquest of whose Roial blood she is descended Whiche is no parte of our purpose neither doth enforce her Title more then to prooue her no stranger within this Realme But the Argumentes and prouffes which we meane to alleage and bring forth for the confirmation of her right and Title in Succession as Heire apparent to the Croune of England are gathered and groūded vpon the lawes of God and nature and not only receaued in the Ciuill policies of other nations but also in the olde lawes and Customes of our owne Countrey by reason approued and by vsage and long continuance of time obserued from the first constitution of this Realme in politicall order vnto this present day And yet for al that hath it bene and yet is by some men attempted artificially to obiecte and caste many mystie darke cloudes before mennes eyes to kepe from them if it may be the cleare light of the said iust title the which they would extinguish or at the least blemish with some obscure shadow of lawe but in deede against the lawe and with the shadowe of Parlamentes but in deede against the true meaning of the Parlamentes And albe it it were inough for vs our cause being so firmely and suerly establisshed vppon al
of God almighty onely But yet for arguments sake I would faine knowe where you finde your differēce and what authoritie you can shew for the prouf thereof Ye haue made no marginal note of any authoritie and therefore vnlesse ye also saye that ye are Pythagoras I will not beleue your difference Wel I am assured that I can shew you good authoritie to the contrarie and that there is no difference in your cases Pervse I praie you 22. H. 6. And there may you see the opinion of Iustice Newton that there is no difference in your cases but that in both your cases the lande shall eschete vnto the Lorde And Prisote being then of Coūsayle with the party that claimed the lands by a descent wher the eldest sonne was borne beyond the seas durst not abide in law vpon the title This authoritie is against your difference and this authoritie I am wel assured is better then any that you haue shewed to proue your difference But if we shal admitte your difference to be according to the law yet your cases wherevnto you applie your difference are nothing like as I haue said before But to procede on in the proufe of our purpose as it doth appeare that neither the King nor his Croune is bound by these general rules which before I haue shewed so do I likewise say of al the residue of the general rules and Maximes of the lawe being in a manner infinite But to retourne againe vnto your onely supposed Maxime whiche you make so general concerning the dishabilitie of persons borne beyond the seas it is very plaine that it was neuer taken to extende vnto the Croune of this Realme of Englande as it may appeare by King Stephen and by King Henry the seconde who were both straungers and Frenchemen and borne out of the Kinges allegeance and neither were they Kinges children immediate nor their parentes of the allegeance and yet they haue bene alwaies accompted lawfull Kinges of England nor their title was by any man at any time defaced or comptrolled for any such consideration or exception of foraine birth And it is a worlde to see how you would shifte your handes from the said King Henry Ye say he came not to the Croune by order of the lawe but by capitulation for asmuch as his mother by whome he conueied his Title was then liuing Well admitte that he came to the Croune by capitulation during his mothers life yet this doth not proue that he was dishabled to receaue the Croune but rather proueth his abilitie And although I did also admit that he had not the Croune by order of the law during his mothers life yet after his mothers death no man hath hitherto doubted but that he was King by lawful succession and not against the lawes and Customes of this Realme For so might you put a doubt in al the Kinges of this Realme that euer gouerned sithens and driue vs to seake heires in Scotland or els where Whiche thing we suppose you are ouer wise to goe about Bysides this I haue hard some of the aduersaries for farther helpe of their intention in this matter saye that King Henry the second was à Queenes childe and so King by the rule of the commō law Truely I know he was an Emperesse childe but no Queene of Englandes childe For although Maude the Emperesse his mother had a right and a good title to the Croune and to be Queene of England yet was she neuer in possession but kepte from the possession by King Stephen And therefore King Henry the second can not iustly be saied to be a Queene of Englandes childe nor yet any Kinges childe vnlesse ye would intend the Kinges children by the wordes of Infantes de Roy c. to be children of farther degree and descended from the right line of the King so ye might say truely that he was the child of King Henry the first being in deede the sonne and heire of Maude the Emperesse daughter and heire of Kinge Henrie the first Whereby your saide rule is here fowly foiled And therefore ye would faine for the maintenance of your pretensed Maxime catche some holde vppon Arthur the sonne of Ieffrey one of the sonnes of the saide Henry the seconde Ye say then like a good and ioly Antyquarie that he was reiected from the Croune bycause he was borne out of the Realme That he was borne out of the Realme it is very true but that he was reiected frō the Croune for that cause it is very false Neither haue you any autoritie to proue your vaine opinion in this pointe For it is to be proued by the Cronicles of this Realme that King Richarde the first vncle vnto the sayd Arthur taking his iourney towarde Hierusalem declared the said Arthur as we haue declared before to be heire apparent vnto the Croune whiche would not haue ben if he had bene taken to be vnhable to receaue the Croune by reason of foraine birth And although King Iohn did vsurpe aswel vpon the saide King Richard the firste his eldest brother as also vpon the sayd Arthur thur his nephewe yet that is no prouf that he was reiected bycause he was borne out of the Realme Yf ye could proue that then had you shewed some reason and president to proue your intent whereas hytherto you haue shewed none at al nor I am wel assured shal neuer be able to shewe Thus may ye see gentle Reader that neither this pretensed Maxime of the lawe set forth by th' Aduersaries nor a great nomber more as general as this is whiche before I haue shewed can by any reasonable meanes be stretched to bind the Croune of Englād These reasons and authorities may for this time suffice to proue that the Croune of this Realme is not subiecte to the rules and the Principles of the common lawe neither can be ruled and tried by the same Whiche thing being true al the obiectiōs of the Aduersaries made against the title of Marie the Queene of Scotland to the succession of the Croune of this Realme are fully answered and thereby clearly wiped away Yet for farther arguments sake and to the ende we might haue al matters sifted to the vttermost and therby al things made plaine let vs for this tyme somewhat yeelde vnto the Aduersaries admitting that the Title of the Croune of this Realme were to be examined and tried by the rules and principles of the cōmon law and then let vs consider and examin farther whether ther be any rule of the cōmon law or els any statute that by good and iust construction can seeme to inpugne the said title of Marie the Queene of Scotland or no. For touching her lineal descente frō King Henry the seuēth and by his eldest daughter as we haue shewed there is no man so impudent to denie What is there then to be obiected among al the rules Maximes and iudgements of the cōmon law of this Realm Only
euidently tende to this ende and scope if a zealous minde to the common Wealth if prudence and wisdome did not rule and measure al these doinges but contrariewise partial affection and displeasure if this arbitrement putteth not away al contentions and striffes if the mind and purpose of the honorable Parlament be not satisfied if there be dishonorable deuises and assignmentes of the Croune in this Wil and Testament if there be a new Succession vnnaturally deuised finally if this be not a Testament and last Wil such as Modestinus defineth Testamentum est tusta voluntatus nostra sententia de eo quod quis post mortem suam fieti velit then though the Kinges hand were put to it the matter goeth not altogether so wel and so smothe But that there is good and great cause farther to consider and debate vpon it whether it be so or no let the indifferent when they haue wel thought vpon it iudge accordingly The Aduersaries them selues can not altogether denie but that this Testament is not correspondent to such expectation as men worthely should haue of it Whiche thing they do plainly confesse For in vrging their presumptions whereof we haue spokē and minding to proue that this wil whiche they say is commonly called King Henries Wil was no new Wil deuised in his sicknes but euen the very same wherof as they say were diuers olde copies they inferre these wordes saying thus For if it be a newe Wil then deuised who could thinke that either him selfe would or any man durst haue moued him to put therin so many thinges contrary to his honour Much lesse durst they themselues deuise any new successiō or moue him to alter it otherwise then they foūd it when they saw that naturally it could not be otherwise disposed Wherein they say very truely For it is certaine that not only the common lawe of this Realme but nature it selfe telleth vs that the Queene of Scotlād after the said Kinges children is the next and rightful Heire of the Croune Wherefore the King if he had excluded her he had done an vnnatural acte Ye wil say he had some cause to doo this by reason she was a forainer and borne out of the Realm Yet this notwithstanding he did very vnnaturally yea vnaduisedly inconsideratly and wrongfully and to the great preiudice and danger of his owne Title to the Croune of France as we haue already declared And moreouer it is wel to be weighed that reason and equitie and Ius Gentium doth require and craue that as the Kings of this Realme would thinke them selues to be iniuriously handled and openly wronged if they mariyng with the heires of Spaine Scotland or any other Countrey where the succession of the Croune deuolueth to the woman were shutte out and barred from theyr said right dewe to them by the wiues as we haue said so likewise they ought to thinke of women of their royal blood that marie in Scotland that they may wel iudge and take them selues much iniured vnnaturally and wrongfully dealt withall to be thruste from the succession of this Croune being thereto called by the nexte proximitie of the royal blood And such deuolutiōs of other Kingdoms to the Croune of England by foraine mariage might by possibilitie often times haue chaunced and was euen nowe in this our time very like to haue chanced for Scotland if the intended mariage with the Queene of Scotland that now is and the late King Edward the sixt with his longer life and some issue had takē place But now that she is no suche forainer as is not capable of the Croune we haue at large already discussed Yea I wil now say farther that supposing the Parlament minded to exclude her and might rightfully so doe and that the King by vertue of this statute did exclude her in his supposed Wil yet is she not a plaine forainer and incapable of the Croune For if the lawfull heires of the said Ladie Francis and of the Ladie Elenour should happē to faile which seeme now to faile at the least in the Ladie Katherin and her issue for whose title great sturre hath lately ben made by reason of a late sentence definitiue geuen against her pretensed mariage with the Earle of Herford then is there no stay or stoppe either by the Parlament or by the supposed Will but that she the said Queene of Scotlande and her Heires may haue and obteine their iust Title and claime For by the said pretensed Wil it is limited that for default of the lawfull Heyres of the said Ladre Francis and Elenour the Croune shall remaine and come to the next rightful Heires But if she shal be said to be a forainer for the time for the induction of farther argument then what saye the Aduersaries to my Ladie Leneux borne at Herbottel in England and from thirtene yeares of age brought vppe also in England and commonly taken and reputed as well of the King and Nobilitie as of other the lawefully Neece of the said King Yea to turne nowe to the other Sister of the King maried to Charles Brandon Duke of Suffolke and her children the Ladie Francis and the Ladie Elenour why are they also disherited Surely if there be no iust cause neither in the Lady Leneux nor in the other it seemeth the King hath made a plaine Donatiue of the Croune Whiche thinge whether he could doe or whether it be conformable to the expectation of the Parlament or for the Kinges honour or for the honour for the Realme I leaue it to the farther consideration of other Nowe what causes should moue the Kinge to shutte them out by his pretensed Will from the Title of the Croune I minde not nor neede not especially seeing I take no notice of any such Wil touching the limitation of the said Croune here to to prosecute or examine Yet am I not ignorant what impedimentes many doo talke of and some as well by printed as vnprinted Bookes doe write of Wherein I will not take vppon me any asseueration any resolution or iudgement Thus only will I propound as it were by the way of consideration duely and depely to be wayed and thought vpon that is for as muche as the benefitte of this surmised Wil tendeth to the extrusion of the Queene of Scotland and others altogether to the issue of the French Queene whether in case the King had no cause to be offended with his sisters the Frenche Queenes children as the Aduersaries them selues confesse he had not and that there was no lawful impediment in them to take the succession of the Croune it were any thing reasonable or euer was once meant of the Parlament that the King without cause should disherite and exclude them from the Title of the Croune On th' other side if ther were any such impediment whereof this surmised Wil geueth out a great suspicion it is to be considered whether it standeth with reason and iustice with the honour of the King and the
whole Realme or with the minde purpose and intente of the said Parlament that the King should not onely frustrate and exclude suche whose right by the common lawe is moste euidente and notoriouse but call and substitute suche other as by the same lawe are plainely excluded In consideration whereof many notable Rules of the Ciuil lawe doo concurre First that who soeuer geueth any man a general authoritie to do any thing seemeth not to geue him authoritie to do that thing which he would not haue graunted if his minde therein had bene seuerally and specially asked and required Againe general wordes either of the Testatours or of suche as make any contract and especially of statutes touching any persons to doe or enioy any thing ought to be restrained and referred to hable mete and capable persons only It is further more a rule and a Principle that statutes must be ruled measured and interpreted according to the minde and direction of the general and common lawe Wherefore the King in limiting the succession of the Croune in this sorte as is pretended seemeth not to answere and satisfie the expectation of the Parlament putting the ease there were any such surmised impediment as also on the other side likewise if there were no such supposed impedimēt For here an other rule must be regarded whiche is that in Testaments Contractes and namely in statutes the generalitie of wordes must be gently and ciuilly moderated and measured by the common law and restrained when so euer any man should by that generalitie take any dāmage and hurte vndeseruedly Yea the Statute shal rather in that case ceasse and quaile and be taken as void As for example it appereth by the Ciuil law that if it be enacted by statute in some Cities that noman shal pleade against an Instrument no not the Executour yet this notwithstanding if th'Executour make a true and perfect Inuentarie of the goodes of the Testatour if he deale faithfully and truely rather then he should wrongfully and without cause paie the Testatours debt of his owne he may come and pleade against the Instrument Wherefore the Kinges doings seeme either muche defectiue in the said Ladie Francis and Ladie Elenour or much excessiue in their children And so though he had signed the said Wil with his hand yet the said doings seme not cōformable to the mind and purpose of the Parlamēt We wil now go forward and propound other great and graue cōsiderations seruing our said purpose and intent Whereof one is that in limiting the Croune vnto the heires of the bodie of the Ladie Francis the same Ladie then and so long after liuing the said King did not appoint the Succession of the Croune according to th' order and meaning of the honourable Parlament forasmuch as the said Acte of Parlament gaue to him authoritie to limite and appoint the Croune to such person or persons in reuersion or remainder as should please his Highnes Meaning thereby some person certaine of whom the people might haue certaine knowledge and vnderstanding after the death of King Henrie the eight Which persons certaine the heires of the Ladie Francis could not by any meanes be intended forasmuch as the said Ladie Francis was then liuing and therfore could then haue no heires at al. By reason wherof the people of this Realme could not haue certaine knowledge and perfit vnderstanding of the Succession according to the true meaning and intent of the said Acte of Parlament But to this matter some peraduenture would seeme to answere and say that although at the time of the said King Henries death the Heires of the bodie of the said Ladie Francis begotten were vncertaine yet at suche time as the said remainder should happen to fal the said heires might then certainly be knowen In deede I wil not deny but that peraduenture they might be then certainly knowen But what great mischieffes and inconueniences might haue ensewed and yet may if the Wil take place vpon that peraduenture and vncertaine limitation I would wishe all men well to note and consider It is not to be doubted but that it might haue fortuned at such time as the remainder shuld happē to fal to the said heires of the Ladie Frācis the same Lady Frācis should then be also liuing who I pray you then should haue had the Croune Paraduēture ye wold say the heires of the body of the Ladie Elenor to whō the next remainder was apointed Vndoubtedly that were cōtrarie to the meaning of the said supposed Wil forsamuch as the remainder is therby limited vnto the heires of the body of the Ladie Elenour only for default of issue of the Ladie Francis. Wherby it may be very plainly gathered vpō the said supposed Wil that the meanīg therof was not that the childrē of the Lady Elenour should enioye the Croune before the children of the Lady Francis. But what if the said Ladie Elenour had ben then also liuing which might haue happened forasmuch as both the said Ladie Frācis and Ladie Elenour by common course of nature might haue liued longer then vntil this day who then should haue had the Croune Truly the right Heyre whome this supposed Wil meante to exclude so long as there should remaine any issue either of the body of the said Ladie Francis or of the bodie of the said Ladie Elenour lawfully begotten And therefore quite contrarie to the meaning of the said supposed Wil. Wherfore I doe verely thinke that it would hardly sinke into any reasonable mans head that had any experience of the great wisdom and aduised doings of King Hēry the eight about other matters being of nothing like weight that he would so slenderly and so vnaduifedly dispose the successiō of the croune whervpon the whole estate of this Realme doth depend in suche wise that they to whom he meant to geue the same by his wil could not enioye it by the lawe Wherevpon ye may plainely see not only the great vnlikelihod that King Hēry the eight would make any such Wil with such slender aduise but also that by the limitation of the said Will the succession of the Croune is made more vncertaine and doubtful then it was before the making of the said Actes of Parlament Which is cōtrary to the meaning and intent of the said Actes and therfore without any sufficient warrant in law But peraduenture some here wil say that although these dangers and vncertainties might haue ensewed vpon the limitation of the said wil yet forasmuch as they haue not happened neither be like to happē they are therefore not to be spoken of Yeas verely it was not to be omitted For although these things haue not happened and therefore the more tolerable yet forasmuch as they might haue happened by the limitation of the said supposed Wil cōtrary to the meaning of the said Actes the Wil can not by any meanes be said to be made according to the meaning and intent of the makers of