Neither can that of Moises in Deuteronom. be omitted : vbi Odiosae Filius primogenitus dilectae Filio praeferri iubetur , such was the respect of primogenitur . And albeit this right of primogenitur was altered in Iacob , Ioseph , Salomon , and some others : yet such few particular exceptions , done at the speciall command of God , ( whose pleasure is reason , and whose power hes no limitation ) doth not abolish the generall Law more nor the particular fact of Phineas doth abolish the general Law against homicide : or the Polygamy and incest of the Patriarkes , destroy the Lawe against Incest and Adulterie . Then the Law of God , ( howsoeuer I haue wrested the same in my former partialitie ) doeth not derogate , but corroborate the title of my Soueraigne Lord , vnto the Realme foresaid .

But the chief question wherein I doe most cavill , and calumniat is this , If a Prince hauing Ius sanguinis to an other Realme , ( as this present King of France , Henrie the 4. beeing but King of Nauarre had to the Realme of France , and as my soueraigne Lord hath to that of England ) if anie Positiue Law of that Realme where he should succeede , can iustlie seclude him ? Whereunto my answere is negatiue : impugning my former affirmation first in Thesi , syne in Hypothesi , by these vrgent reasons and examples following . In Thesi .

First , Princes having no superiour power but the supreame Godhead , they be only subiect to his lawes & omnibus alijs legibus humanis soluti dicuntur , and if of their naturall pietie or goodnesse they shall humble them self to be subiect therevnto , ( as Theodosius & Valentinian seemed to advyse them , saying , Digna vox Principe Legibus se subditum esse fateri ) that subiection or rather moderation est voluntatis , non necessitatis officium . Which assertion is founded vpon good reason : for if forraine Lawes should binde them , then were they vassals & no Princes : if domestick lawes , then shoulde they be astricted to punition , in cace of transgression , and to be astricted to punition , is a manifest subiection , no soveraignitie .

Next , althogh it may be said that the Prince in his 〈…〉 Fisque , and in manie vther things quae sunt privati iuris , is subiect to the Lawe : yet neither may hee nor his crown be bound in ijs quae sunt iuris publici . * Atqui ius Regiae successionis publicum est , cùm omnes ●●…uitates sint publicae . As also the same may bee verefied by all the titles of the Lawe conceiued of Dignities and Magistrates , both in the Digestes and Code .

Thirdlie , if anie Lawe may be extended to the crowne or Prince , they suld bee expreshe mentioned therein : speciallie , where the Law is exclusiue , dinisiue , or obligatorie : and for this cause the Law excluding the femals à feudis , the Lawe of division of heritage inter fratres & sorores the Lawe oblishing the successor with the goods of the defunct to pay his debts , binds not the crowne , when the crowne is not expressed , & per rationis sdentitatem , the Law contra peregrinos conceiued simply without mention of the crown may not be extended therevnto . To affirme the contrary heerof , and to alleadge that Iura successionis & haereditaria which be made in any Realme suld binde the Prince aswell as the people , because they bee made within the Realme which he hes or pretends to haue is to sturre vp sedition : yea it is as absurde and inept as to persew a Shiref or a whole Prouince for fulfilling all contracts made within his jurifdiction , or within the precinct of the said Prouince , or as who should think the Schoole-maister subiect to the order appointed by him self for ruling his Disciples .

Perdlie , to this houre there can bee no example exhibite where anie having the title of blood to the crowne of England , with power and courage to bear out the same , that any Positiue law hath barred them . For proof whereof , I will vse onlie such examples as be most recent . The Positiue lawes made in Henrie the sixt his time , against Edward Duke of Yorke , did not impeshe him , nor his race , from the crowne , nor the bitter statuts made by Richard the vsurper against that most magnanime Prince of worthie memorie , Henrie the 7. did not seclude him from the right which he had both by God and nature . Yea in our dayes the manifold Lawes , and libels defamatours made against the most christian King present , could not impesh him from the crowne of France .

Now in Hypothesi : I cum to examine such Positiue Lawes as bee obiected against the King my soueraignes title , of which kinde there bee speciallie two : One auncient , an other later . To impugne the ancient I take my first argument from the Rubricke , or Intitulation thereof , bearing these words : De ceux qui sont nez outre ou de la mer. i. De trans mare natis . By which Rubricke or argument , it is verie probable that this stature in the originall thereof , did not containe this word Peregrinis : for the tenour of a Lawe shoulde not exceed the nature or substance of the title , and so it should not preiudge his Maiestie , who is borne within the said Yland . As also to them that will indifferentlie marke the drift and intention of that statute , they shall finde ittend onelie against children borne without the four seas which compasse the said yland : whereby Scotland is no more secluded nor Wales & Cornewall . And so it is not improbable , ( which some alleadge ) that the Rubrique foresaid should be De Peregrinis trans mare natis , non De Peregrinis & trans mare natis .

Secondlie , because the said Law was proponed in the 25 ▪ yeare of the raigne of Edward the 3. vppon a question mooued , If children borne out of his alleageance might possesse heritage within England . Whereunto was answered and enacted , that all children borne ouersea , hauing their Parents at the time of their birth at the faith and obedience of the croun of England , should enioy alike benefite & priuiledge as other heires borne within the Realm : so the statute is a generall affirmatiue for that particular : and the argument obiected therupon , is â contrario sensu , which kinde of argument prooues nothing . For if I should say , Omnis homo est animal : Ergo quod non est homo non est animal the consequent wer false and therefore is the decision of the Law , Argumentum à contrario sensu non procedit 〈…〉 in verbis narratiuis Legis . Nec etiam in verbis dispositiuis Legis , when that argument is inferred to correct or reforme the common Law ( like as in this cace it doth by drawing the Law contra trans mare natos in a specialitie contrair the common Lawe , to the prejudice of higher powers , which be not vnder the power or compasse of humane lawes ) and for this cause the other ancient decision is contrair to their intention , wherin ⸪ 〈…〉 is said . Argumentum á contrario sensu non procedit vbi sequitur correctio Iuris communis in specie : . Thirdly the words of the said statute running vpon , and so oft expressing heires and inheritance , declares the meaning therof onlie to be directed for priuat persons , who must succeede to their antecessors Iure haereditario : for Princes succeede aswell Iure familiae , as Iure haereditario , & ordinis 〈…〉 naturae beneficio non hominis , and are not as priuate men astricted to enter cum onere debitorum , but they enter as pleases them , the one or the other way , to the end their crownes bee not exhaust and exsorbed : so the saide statute beeing conceaued for the vse of priuate men allanerly , that must enter as heires and no other way : it cannot preiudge his Maiestie who may enter an other way , viz. per Ius familiae , apperteining to all Princes Soveraigne .

Ferdlie , seeing this Law against strangers was founded vpon two respects which pertaine onlie to priuat men and not to Princes , it can no way strike vppon them . The first respect was grounded vpon the consideration of loyaltie Quia duorum Principum summorum vnus subditus esse non potest , agreeable vnto that of the Evangell , Nemo potest duobus dominis seruire . The other respect was to saue transport of gold and siluer , and other defended commodities , and to cut off the occasion of priuate intelligence & practises . For which cause in France was made Ius albinatus , as the practisians testifie . Now in the person of a Royall successor 〈…〉 these considerations of loyaltie , transport , and intelligence are not to be feared .

Fiftlie , in Realmes where most strait Lawes bee kept against strangers , as in France , that Ius albinatus forsaid , by which of necessity all strangers that would ▪ testate or succeed , they must be naturalized with this clause ( modò sint Regnicolae ) yet Princes haue succeeded and do succeede to great lands and Dignities within that Realme without anie benefite of naturalization , as the old Kings of Nauarre borne out of France , to manie fair lands in Guyen and Languedok . The D. of Lorane to the Dukerie of Bar : yea of old the kings of England to the ample Dukeries of Aquitane , Aniou , Normandie , and Britaignie , and that because soveraignes are presumed euerie one to be brethren to other : and being brethren , it wer indigne to esteeme them externe or strangers , and inept to make them subiect to Lawes of alleageance , which be onely proper to subiects and vassals .

Sixtlie , the clause conteined in the said pretended act , excepting Les Enfans du Roy , doth exeeme the king my soveraigne out of the compasse thereof : for that word Enfans is in the Latine Liberi : and be Liberi in the 〈…〉 originall and right signification , is not only meaned children in primogradu , but also Nepotes & pronepotes & natinatorum , & qui nascentur ab illis . Et ●…os omnes qui ex nepotibus descendunt , lex duodecim tabularum filiorum nomine comprehendit .

Seuenthlie this Law foresaid de albinatu , although conceaued generallie , yet could it not bee extended to the crowne aswell as to the subiect : and therefore the wise and learned did deuise the Lawe Salique for the succession Royall .

Last , if this statute against forrain birth take place , then shall manie absurde inconuenients follow therupon . First Princes ( the ornament , bewtie , and light of the world , without whome were nothing but darknesse , disorder , & confusion ) they should be in worse condition nor the moste ignoble subiect of their Realme : for by that Law subiects may euer succeed , hauing their parents subiects : but Princes cannot haue that immunitie , because their Parents were neuer subiects . Againe , if a Prince for honor of his Realm , or for securitie or enlarging therof , shall matche him self or his children with a forraine nation where hee or they beget children : what barbarous iniquitie wer it to preiudge the parents remaining abroad for so honorable causes , or to hurte the innocent children for a matter which lay not in their power to mend .

Now for particular examples to illustrate these argumentes , I alledge but a fewe both before and after the conquest , to shewe that forraine birth makes not incapabilitie to the crowne of England . Edward the King & Confessor before the conquest , did cal home out of Hungarie his Nevoy , Edward surnamed Vdislae borne in Hungarie , who deing before the king his Vncle , the same King Edward declared Edgar Athelin sonne to the said Vdislae borne also in Hungarie , to be iust heritor , albeit he was afterward defrauded thereof . And after the Conquest , Richard the first going to conqueis Ierusalem , institute his Nevoy Arthur , who was borne in Britaignie , & young Duke thereof , to be his successor . Like as king Stephan and King Henrie the 2. were both borne in France , their Parents not being of the alleageance of England , & yet they were capable of the crowne of England .

The vther argument wherewith they impugne his Maiesties title , is grounded vppon a statute made in the 28. yeare of the raigne of Henrie the 8. of worthy memorie , wherein by consent of his Estates in Parliament is graunted vnto him full power by his letters Patents , or by his Testament signed with his hand , to declair , determine , and designe the successour of the crowne in cace his owne children should faile , without issue of their owne bodies , and the said crown to bee established in the person of the said successor by way of reversion or retour , as they call it . By vertue of this authoritie or arrest of Parliament giuen to the said noble Prince , our aduersares doe alledge that by his latter Will or Testament , he did institute and ordaine the succession of Francoyse Countesse of Suffolke , his Neice by Marie his youngest sister to succeede , secluding altogether Margaret Queene of Scotland his eldest Sister and her descent . Wherunto I reply shortlie , first by coniectures , next by peremptorie answeres .

It is not probable that a Prince so righteous , so wise , so kinde , as King Henrie the eight was known to be , that he should so vnkindlie and vnrighteouslie deale with his eldest sister germane , as to spoile and degrade her and her innocent succession of all honor and exspectation that God and nature had prouided for them .

Next , hee could not forget the commendable answere of Henrie the seaventh , his moste prudent father , who at the contract of mariage made betwixt King Iames the fourth of worthie memorie , and Ladie Margaret eldest daughter to the said King Henry the seauenth : sundry of his counsel labouring to empesh that mariage , said vnto him , that it might come to the great dishonour and discommoditie of the realme , in cace , which was verie possible , that England shoulde fall to bee subiect to the Kings of Scotland : Whereunto the said noble Prince answered , that in cace it fell out so , there was no inconuenient to England : for as William the Conquerour atteining to the crowne of England , did ioine and subiect Normandie to England , and not England to Normandy , so Scotland beeing the least of the two Realmes should be subiected to England , if any such accident should arriue , because the lesser must cede and giue place to the greater . By which answere the saide noble Prince Henrie the eight knew full wel it was not his Fathers meaning to defraud his eldest daughter , nor her succession . And therfore it is altogether improbable that hee should haue forget the mind and intention of his magnanime Father , in a matter so recentlie and righteouslie done : and that with his owne speciall consent and good lyking .

Thirdlie , the said noble King , knowing what torte and wrong his Father had receaued of Richard the 3. by such partiall exceptions made against his title , and publishing so bitter lawes against him , he coulde not be so obliuious , much lesse iniurious , as to fall in the same error , which both hee himselfe , and all iust men did so much abhorre in the person of the said vsurper .

Ferdlie in respect that about the same time when the said pretended Testament is alledged to be made it is certainlie knowne that the said noble King Henrie the eight , did treat a mariage betwixt Prince Edward his sonne & Mary of Scotland his petite Niece , for which cause it were out of all purpose to think that hee should at one time deale so kindelie and vnkindelie : as vnder pretext of such newe affinitie to preiudge his nearest Niece , of all her lawfull esperances .

Last , shall we beleeue that King Henrie the 8. who was a miracle , yea a mirrour in his age of all magnificence appertaining to a Christian Prince , should haue bene inferior in iustice and pietie to Iohn Galeas Duke of Millaine , who shall bee for euer praised for his equitie in preseruing the prerogatiue of birth-right . For going to depart , he called his children , & said : O dura Lex , ô dura natalitij iuris praerogativa , quae aequales genere , ac natalibus inaequali sorte seiungis ? Dolebat enim Iani fily stolidioris annos , virtuti Philippi Mariae anteferri .

My peremptorie answeres be these .

The first is grounded vpon this decision . Nec verò si aliquis Rex consensum statuum haberet , vt priuaret regno filium aut proximum , posset tamen id iure facere : quia qui priuare non poterit , non debet id facere cuius praetextu per Legem inducatur privatio . For it is so cleare as the Sunne at mid day , & all the Doctors both of the Canon and Civill Lawe , in one voice agree thereunto , that no Prince nor estate separatim vel coniunctim , hes power to transfer the crowne from one to an other , namelie , where the crowne is successiue . For if it were lawfull to reiect one , and mak choise of an other , then should succession be turned in election , which were absurde . And heerevpon is there manie decisions of the Doctours , whereof I repeat a few . One of Iason saying , Quod regna 〈…〉 deferantur lege Diuina , naturali , consuetudinaria & Canonica , primogenito : per rationem huius textus , Nemo potest disponere regna , nisi secundum Legis dispositionem . Idem Felinus asserit & Ioannes Andreas Cap. licet De voto , Abbas cap. intellecto , de Iureiurando . Vbi dicit Reges non possepriuare consanguineos spe regni , & * secundum Innocentium . Nec patres Reges 〈…〉 possunt primogenitos exharedare aut minuere iura primogeniturae . Benedictus in cap. Reynutius in verbo , in eodem testamento , Quia Regna deferuntur iure sanguinis & quae naturae beneficio competunt liberis exhaeredatione paterna tolli non possunt , nec etiam statuum Regni ministerio in remotiorem transferri . Denique , cum Dominus non tulerit Israclitas , imo dederit illos in direptionem , quod spreta domo Dauid , sibi Regem Ieroboam filium Nabath constituissent , negari nequit quantum partiales Regnorum translationes à propinquioribus ad remotiores , non solum legibus humanis , ver●…metiam voluntati Diuinae repugnent .

Secondlie , the said pretended Testament was supposititious , & contriued by such as meant to defraud both the heires female of the said king Henrie the 8. aswell as these of his eldest sister , which did manifestly appeare immediatlie after the death of the said young Prince Edward , when as the Lord Gilford eldest son to the Duke of Northumberland did marie with Ladie Ieane , eldest daughter to the foresaid Ladie Francoyse Duchesse of Suffolke , to whome the said Testament designed the succession : the meaning of which mariage was to erect the said Ladie Ieane , and to deject the two innocent and moste illuster Enfantes of Henrie the eight , Queene Marie , and Queene Elizabeth .

Thirdlie , of the witnesse that had signed the saide pretended Testament , three of the most honest & famous thereof , vppon remorse of conscience before Queene Marie their Soveraigne Lady and her honorable Counsel , did depone , confesse , and sweare , that the said Testament was neuer signed by the said king Henrie , but was sealed by one William Clerk with the kings seale , when as the king was either dead , or in the last article or agonie of death , hauing no sense , knowledge , or remembrance : and these three witnesses were the Lord Paget , Sir Edmond Montague Knight cheef Iustice , and the said William Clerk affixer of the seale as is aforesaid . Vpon which testification the same beeing duelie tried , by all circumstances requisit , that it was not by corruption , suborning , nor menaces exhibite by the said witnesses : the saide Queene Marie , to the honour of God and her Realm , for defence of the verity , iustice , and dignitie of the succession Royall , and for auoyding of manie inconuenients that thereof might haue ensued by the partialitie of the said pretended Testament , caused the examplar , memoriall thereof , which was in the Chancellarie , to be cancellat , lacerate , and destroyed as a thing indigne to haue place amongst the true and authentick registers of so noble a Realme . By which genereux and iust act , she merites no lesse praise nor the Romanes and Ephesians , the one defacing the name of the Tarquins for the meshant act of Tarquinius Superbus : the other making a Law prohibitiue to all historians , neuer to mention the name of Impius Erostratus within their commentaries .