John Fortescue.

The works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) online

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to th'occafion ot fynne of the people and at their requell, and whether the fubjettes dovs ten^
the iynne of kynges, thorowe the which hurt may come to either party. Ikit he that m lofl
iynneth, either the kyng or the people, he mooft worthy to here the blame ; and i n hat
party ought ratheft to turne the vengeance, for the nature of flirewde men is to be .er' ant
to payne and bounden to correcclon. And lens it is fo that their evil ynclynacion may nat
kepe hem in rule onlefle than they have a kyng, it is reion that the fiiffre the charge and
the affliccions that grovven out of the vices ot kynges. Arn-l the kyng alfo dial here
th'offenfe of his people, forafmoche as his diflblucion of vices ys opened anionge he, a, md
thorowe the negligence that he doth nat ufe payne to enhaunce vertu and reprove mvfdcdes
which he the begynnyng ot tlieir difordenaunces. \\'hertor princes otight to be greetly
moved to dylT\plyne, to good maners, and vei tu, iceyng that ther goodnelle may proi'te to
all the people. On the other fide their inyquyte may noye to every man. [Goo |d flat is
mooft imiverfal and comewne is mooft excellent.

f. i8ob. And in contrary wife the evdl more"' ofdyffyplyne flu-Aveth

too contraries, and the wife^ To fuche folkes (hal be yeven right

a fliarp and a harde Jugement, namely fuche as late in the high feges. And they that be
feke and pore ftial have their payne made fwete with mercy; but the greet ftial fele the
myght of ftrong turmentes. O ye kyngs Jierkene what the greet Kyng hath c rdeyned for
you! He hath ordeigned tor yuu honours and magnyiicences, but loke ye lo , e vertu, for



•Sewc-n," i.e. follow. - ■' llpiion" luis licit the 1. 11k >il ,illi..

, e. f'cai. ' At tliL-ri.- two ]]l.icis a leu words lu;se bct-n burnt ufl' at llu- ends of linos.



Underjla7idhjg and Faith. 489

ye have them to th'entent that ye Hiulde ferve hym with them; and if ye ferve hym nat
with them ye can nat kepe them. Certeynly vertu that comcth from heven where per-
durable thyngs dwell, holdeth the grace and the femblaunce of the goodnefle of her nativite,
and therefore fhe maketh the powers to endure, and fuche as wil folowe her, maketh hem
ftedfaftly abidyng in their fuertee. But who that is born of this lowe fragilite undre the
paflion humayne, is variable and maketh his werkys that be nat durable, and draweth hem
to the fall thorough the feble impotency of that they com from ; for every thyng retunieth
ageyn to their principles, and who that wil nat begynne his werke uppon vertuous affeccion,
nor conditheth hit by lyne and undre mefure, may wele be likened to hym that bildeth his
houfe uppon a falfe foundement, and conditeth his werke in maner for to fhcwe but nat to
endure. And what bewte apparant that the bildyng Iheweth, yet it wil enclyne to his firft
beyng, that is to fay, fall unto ruyne. Remember theron the fentences that thou i.-ell in
writyng, and fuche thyngs alfo as thou haft (t^tw in thyne experience, and thou fhalt )j hem
accorde in this behalfe. For the glory of evil princes and the reify ng of their dignite is
as the fire that is within tlex or towe, which litle while dureth. h'or nowe a daies they \\\\
ufurpe and take uppon them authorite and power not deu, and blynde them felf fuche wife to
the [end] of their fortunes, and be fo ftonyed yn the greet brute of [their] worldly worfhippes,

that they may nat here the fhe' [Suche] an ailate may nat ftonde ferme,

for thyng that lightly cometh, lightly goeth, and the trees tfiat beren haftely, both the frute
of hem is lelTe, and alfo they dure nat fo longe as they that have long attemperance and
wele tyled, which receive their noriniyng thorowe hete of the fonne. Therfor thou feeft but
fewe or noon reigne long of fuche as thorowe pride and lynne avaunce hem ielf to high
governauiices ; for as fodeynly as they aryie to the high pompes, as fodeynly they tall from
their aftate, their name perifsheth, their good goth away, and their lynage talleth into dif-
herytefon." David diflymyled nat the marvellous jugement whan he feide " I have feeid,"
quoth he, " the evil men reifcd on heith as the high fedre, and whan I was paft and comyng
homward ageyn I firwe neither rote ne braunche." Wherby thou mayift fe that the greet
Reames and myghty powers that been occupied unrightfully, and wrongfully conducted may
never ftonde ftable nor acerteigned ; but it draweth the kyng and the Reame to payne and to
dethe which is tlie reward of fynne, as ieith feynt Paule. And their reward ought to be
yeven after the qualite of their defertes. The inyquite of a prince which is a publike per-
fone thorowe whoes dedes falleth oftctynies unyvcrfal llaundre and greet hurt to the people,
caufeth hym to have generalite of payne above all others.

O ye kynges that be clofed in this lowe world, wheras almyghty God hath fette bothe
ende and terme which no man may pafie, and your powder may nat be ftabliished on lafle
than God atTirme hit, thorowe whocs handes ye muft nedes paife, wherfor then do ye engroce



Two or tliiee words are wanting here. - i.e. DillnlieiitanLe. Halliwell, Aieli. Diet.

3 R



49° ^ Dialogue between U7nierJ}andiug and Faith.

up the greet hopes of theis wordely goodes unrightfully^ to the greet noyaunce and trouble
of the pore people, feying that ye be of fuche a fede as mult nedes palfe avvaye, and your
power fliall be aile to broken, and fewe teres or noon fhal be fliedde for you on lelTe
that your hert be fermely fette on (iod which byndeth and unbyndeth ; for after your jiaffage
ye muft make acompte, therfor it is neceflary that reafon pafle your defires fuche as may be
confermed to Godde's wille.

Undrejtoudyng. i

[Good] doftrine and depe Infti-uccion may be gadered out of thy vvordes. But yet I
have a icrupil uppon that God punyfsheth the Juft and true men with the fynners, and
putteth the innoccntes and [evill] as all oon. Alas howe mariy jull, and peafible creatures
have borne the payne and angwifsh of this vverre ! Alfo howe many men of lioneil livyng
have fuffred dethe ! And moche good truly gotyn hath been wikkedly ravifshcd and taken
away. I fe the naughty and reprovable people helped with richefles, and the good honell
people beggars and nedy. Alfo Chaltitc that hath be kept in woriliipe, nowe is conllrayned
and brought into myfchevous vylanye. So then thorowe inyfcheve, necelTite, and outragi ,
man can nat have that is his; nor no good dede may receive the rewarii after the vjrt i
therof; but ftrength maykvth right af'ter his owne opynyoun, and over pride ulurpet i t)
have worfhip without eny delert. Where is then the divyne Juflice or to what tyme is fh ;
referved, when flie may nat helpe us nor amende our myfcheves whenne we have moolT: neede
unto her ?

Feythe.

Yf your felicite were oonly in the goodes of this worlde and your beyng were fixt without
abdyng of an higher lif, thenne wolde I thynke that there were greet apparance in thyne
argument; but the verrey rightwifneffe ' is fynal punycioun of hem that be dampned, and fhe
rewardes of honeft folkes is nat to be getyn in this worlde. For who that ieeth the e\j'ill
dedys unpunyished, and the good dedes evil rewarded amonge the either people, may wele
thynke that ther is another thynge, thorowe which al is reformed by egall Juifice, or eljys
the fmie Juge that maynteneth in this dedely worlde were nat rightful to every man. And
by this diverfe enforced" hem felf to fliewe the perpetuyte of the fowle, the refmge of the
body, and the general Jugement. But it ou^dit ynowe fuf^ce man iuche thyng as the
Creator hath liked to fhewc by me. But of commune fynncs here beneth, nu n fe al day
erly, or late, enfmiples of indignacion and execucion of payne uppon the lame ; tor when

the

[The remainder is wanting.]



.e. the tiue jiidiLL-. '^ i.f lli cngiluiicd tlnir .ugumcnt.



l\(f5?aJ))!^^^<



&M



EXTRACTS AND FRAGMENTS FROM THE



MISSING TRACTS WRITTEN BY



CHANCELLOR SIR JOHN F^'ORTESCUE,



ON THE CLAIM OF THE HOUSE OF LANCASTER TO THE



CROWN OF ENGLAND.



il^r'^n r;^^^ HE following fragments, being all that are known to exift of the Trads
iS^5^3 written by Chancellor Fortefcue in fupport of the right of his mafter
""'"""^^ Henry VI. to the throne of England, are now, with a Tingle exci prion, to
S^^ be noted in its place, printed for the firlT: time.

-^^§?£=^^^^>=^ They form parts of three of thofe Tratts, namely : —

1. "Of the Title of the Houfe of York."

2. " Defenfio Juris Domus Lancaftrias."
And a fliort piece on one leaf, entitled : —

'^. "A Defence of the Houfe of Eancafter."

Thefe fliort treatifes were written, it is believed, in Scotland, while Fortefcue was in
attendance upon Henry in exile there, with the intention that being feiit into England
and there circulated, they fliould prepare men's minds to receive him back again when
his Oucen's negotiations with the b'rench and other foreign foverelgns fliould have
fecured fuch afliftance as might enable hini, with his Englifh adherents, again to take the
field againft: Edward.

The remains of the firfl: of the above-named TraCls were difcovered in the Britifli
Mufeum by the perfeverance of Mr. Richard Sims, who conducted a iearch there tor me.

Of the pafTages from the fecond Traft the four firft are from the James MSS. in the
Bodleian Library, where they are entitled " Oua:dam excerpta ex Fortefcue contra Titulum
Edwardi Ouarti." The collection in which they are found is defcribcd by Bifliop Tanner
in his Catalogue as "Codices Scripti xliii empti e libris Ricardi Jamefii Theolcgia;
Docftoris." This Docfhor Richard James, a Fellow of Exeter College, Oxford, in 1615,
was a learned fearcher of ancient documents, and a friend of Sir Robert Cotton, ot whofe
library he had fole charge for fome years ; fo that he, no doubt, made his extrac'ls i. iredly
from the Cotton manufcript of the Defenfio Juris Domus Lancaftria:.

The fifth extraifl is reprinted from the Appendix to the " Hereditary Right to the Crown
of England Afferted," by Bedford, who alfo has preferved in the iame work a fmall portion of
the extrad No. 2., quoted by him as taken from the Defenfio Domus Eancallria- ; whence
we are able to conclude with certainty that James's extracfls are part ot the iame treatile.



-' \'



'""""'"ili'



-■'W'



The tranflation of the pafTages from the " Defenfio " is by the Right Honourable
Chichefter Fortefcue.

For the extract from the third IVeatife I am indebted to the l<indnefs of Sir Thomas
Phillips, Bart., of Middlehill, who, although when my requeft reached him his vaft colleftion
of MSS. was il:ill difarranged by its recent transfer to Cheltenham, very kindly fearched for
the document, and allowed a copy to be taken.

Although the long-continued inquiries made by the editor in various direftions and
through many channels, for perfeft copies of thefc and other writings by l<'ortefcue on the
fame fubjecl have been without fruit, their partial recovery need not be regarded as entirely
hopelefs, becaufe a volume which contained fome of them was miirmg from the Cotton
Library before the fire when Smitlfs Catalogue was made ; its defl:ru(fl:ion, therefore,
although but too probable, is not certainly known as a fad:.

It will be found that l^rtefcue in thefe l"ra6ls often repeats his argun.jnts, and fome-
times in almolt the fame words. This may to fome extent be accounted for by the
fuppofition that he wrote in Englifh for his own countrymen, and in Latin for the foreigner.



; .1' . .■ , '• 1 s^-



FRAGMENTS OF A TREATISE



BY SIR JOHN FORTESCUE, KNIGHT,



ENTITLED



OF THE TITLE OF THE HOUSE OF YORK.



■".! ■ .' ' ' '' j J\'' } r\



OF THE TITLE OF THE HOUSE OF YORK,

Pruiciphoii lice/}.

{Here foloweihe the firjle an/were made agabijl the forejaide pretended title.]



ING HENRIE THE KIFTE feeing] that the Kinges of Englande fo
comyn of a dawghter of Fraunce, maie not enjoy the fayde Lande of
France by fuche title, he agreed, beyng a righteoufe Prince, to leave that
title, and the name of Kinge of France, and to wedd a dawghter of the
^kl^S^^^S>^^ howfe of France. And therupon by the affente of the Kinge of France,
and the three Eftates of the fame lande was made Regent, heire, ;ind inheritor, of therealme
of France, to be had to him, and to his heires males, immediately after the death of Charles
then Kinge of France. By force of which, and not by title of defcent, the forefaide Kinge
Henry the fixt fonne to the faide Henry the fifte, after the death of the fame Kinge his
father, and alfo after the death of the faide Kinge Charles, was at J'aris enoynted and crouned
Kinge of the fime lande. And in like forme the Duke of Lancafler, and the Duke of
Yorke, which had wedded two daughters of the houfe of Spaine, fhuld have had that reahre
if the croune therof had be defcendable to heires females, as it was not. Wherfore they had
never that realme. But after the death of Peter Kinge of Spaine father to the faide two
daughters, that Lande chofe and took to theyre King Henrie, Ballard brother to the ;:mie
Peter, which was legitimate by the Pope. For, as it feemeth, God hath made a law ti all
women that they lliould not have immediately from him power upon maii, and fo be wiinout
fovereigne in earth. But he bound them by his law to the contrarie, when he faid to the




The rcfcrencu tor this frugmLiit is Brit. Mus. Cotton MS. Julius !•. vi.



A ;-vu



V.)

49 S TraSis by Sir yo/i?i Fot'tefcue.

firft woman and to all her iHue women, Kris Jub poteflate viri, et ipfe dom'nmhitiir tut.
Whertore a cuftome or a law made in fiich a relme as hath no foveraigne in yearth, that u
woman H-iould he ibveraigne tlierof, where as it femeth againfl: t!ie lawe made by God,
maie not then he caled a lawe, but rather abufion, and in Latin called Corriiptela et
nun Lex.

It feemeth right inconvenient that a woman by right of inheritance fliould be Queene or
foveraigne Ladie of fuch a realme, and namely of England; fithen the Kinges therof ben
perfonns mixt, and enoynted, having power teniporall mixt with power fpirituall in manie
things; as making Collation to Prebends in Cathedrall Churches in time of vuidance of
Bifhopprickes, and iuch other mixte power, which be not convenient to women for to
execute. And fithen the Kinges of England ben enoynted in theyre hands, and by vertue
and meane therof God commonlie healeth (icknes, by putting to and touch ng the maladie,
by thenontinge hands ; and alfo gould and filver handled by them, and fo ^ffred on Good
Friday have ben the meane and caufes of great cures, as it is knowne, and therfore fuch
gold and fdver is defired in all the world. Which good things mull needes ceafe for all the
time that a woman were fo Oueene of that land, becaufe that a woman may not be enoyi ted
in her hands. And alfo everie Oueene enoynted, is eno)'nted in a lower part of the be die
then a King, becaufe (lie ought handle no fworde, nor doe anie violence by might ; to • it
were full inconvenient to womankind. And yet the Apoftle faith of a King, that he teai^th
the fword not without a caufe. And alfo it were full inconvenient that a woman (hould be
a judg as is a King, in crinunall caules, and command a man to be dead. And if her fon
by reafon of her fhould in her life or after her death be a Kinge while there weare anie ilfue
mafle alive defcended of the lyne royall, it would happen in fine that the fon of fome vile : nd
unnoble perfon, in blood and in name eflranged to the [Kings] of the faide lande ihould
be King of the land before the mafle defcended of the noble and roiall blood, and of the
name of Kinges of the fame land. Which was to foule an inconvenience to be iuffrJd in
anie land. Wher it hath not been feene, nor read in anie cronicle, that the iffue of a woiman
by reafon of his moder, hath be a Kinge of anie lande, while there was ifllie mafle on live
defcended as by mafles of the lyne roiall of the fame land. I

Item, if a woman by fuch title fhould be a Queene and foveraigne Ladie, manie
mifcheives and harmes might enfue therby. As when a King had manie daughters, and no
fonne, the monarchic of the realme by ther hulLands might be divided into UK'.nie realmes.
And if the daughters were wedded to Kings and Princes in other lands, the revt 'lues of ther
owne land might therby be caried out of the fame land unto the uttermoll deflruftion therof.
And alfo they might take hufbands, enemies or fervants, (ingular inhabitants of tneir lands,
which hufbands Ihould ther be Kings and fovereyne lords, having power uppon thofe to
whom they were enemies unto ; and of that that before fuch mariages, they were fervants or
bondmen peradventure unto, which were to great perill. Alio by long iucceilion of theyr



0/ the Title of the Hoiije of York. 499

ifi'ue being weonien the realme might be devided by polTibihtie amonti a hundred perfons and
nioe, [Hopping to] the uttermoll any entilinge ;' and dellriittion theiof.

It is not like to be true that Phillipe Ipecified in the forefaide pretended itle, fhoulde
have be dawghter to the forefaide L.yoneli, or that he had any ifi'ue which overlyved him.
For all the Cronicles which be written of him, and of his tour bretheren, niaken mention
what ifi'ue evereche of his bretheren had; but they make no mention ot his ovvne iiTue.
And alfo he was Duke of Clarence, and bare the Kinge's armes with certayne labelles, but
after his deathe no man or woman bare his Eftate or name of lOuc, or bare his armes. And
if the forefaid Phillipe hatl ben his dawghter, her hufbande, and (he, and alfo her fonne
Roger, and Edmund his fonne, and all other of that lyne fcthence, woulde have borne his
armes as the armes by whiche they had bin moft worfhippcd, and approved to be prive ot
bloode to the Croune of E'.nglande, as other men and women, the illiie to the remanen e of
the fame brytheren, did. Wheras the bare always the armes of the Erie ot Marche, at d of
Ulrter, otherwhile hole, otherwhile departed, and never the armes of the forfaid Lionel being
Due of Clarence. And the Kinges feconde fonne, havinge no more children but one
dawghter, as it is fuppofed by the forefaide pretended title, woulde not have lutfered that
dawghter which by birth had bin a mariage for a Kinge, to be maried to a man ot io lowe
bloode as the father of the faide Roger fpeclfied in the title, was of, and namely fithen he was
comen of a corrupt b[loode] namely of Roger Mortymer which was attaynte of highe treaion
to Kinge Edwarde the third, father to the faid Lyonell Due of Clarence. But it is open
enough in Cronicles, and namely in the realme of France, how that the dawghter ot the Erie
of Ulfter wedded to the faid Lyonell, bare a dawghter caled Phillip while the fame Sir
Lyonell was beyonde the fea out of Englandc continually the yeare before, and long titer.
Wherfor he never after that time fe the mother or the childe. But Sir James ot Audeley
then ftewarde of the Kinge's houfeliold, which was furmifed" with the gettinge ot the faid
Phillipe, was afked ^ by occafion therof, and for a certayne [charge] fubmitted upon, was
atteined of heigh treafon, and his heade faiitten of, as ( by a pedi]gree fett at the [end of the]
booke openly it may appear.



Here followeth the feconde an/were, made after the common laive ifed in all the worlde, and
namely amonge Kinges, and alfo made after naturall reafn, againjl the Jorejaide pre-
tended title.

Kinge Henry the tburthe, coufin germayn to the forfaide Kinge Richarde the feconde, ,is..



' Emifinge, i.e. acquiring, incrcafing of wealth. '^ Surniiltd,, i.e. luliiucied.

■* Afkfd, i e. interrogated.



5 ! 1^ 10'?






.'VJ



<:1



500 TraSis by Sir 'John Fortefciie.

next to him ot his bloode, and alfo next heire niafle, that is to lay Tonne to John, brother to
Edwarde fader to the faide Kinge Richarde, was aniioyntetl and crouned Kinge of l-'.nglande
by the hole aflente and will of all that lande, no man reclaiminge. ;\nd fo continued Kinge
peaceably without clainie or interruption made upon him by any man for the terme of his life.
And after his death the croune and realme of Fnglande dcfcended to Kinge Henry the fift
his fonne and heire, which in the like forme and afTente and will was enoyted and crouned,
Kinge of Englande ; and fo continued, and rayned peaceably all his life, without any inter-
ruption or clayme made upon him by any perfon. Before whofe raigne Roger fumtyme
Erie o\ Marche, by whom the forfaide Edwarde that now claynieth the realme of lingland
conveieth his title and difcente, had ilTue Edmunde late Erie of Marche, and dyed iefed of
the Erldome of Marche. After whofe death the fame Erldome of Marche defcended to the
fame Edmunde as to his fonne and heire; which came into the chancerie of he faide Kinge
Henrye the fifte and thcr fhued his liverie of the laid liridome as fonne and heire to his
lather, and did for the fame Erledome to the fame Kinge as to his Soveraygne I.orde
homage Lyege. And after that, the fame Erie Edmunde under the Seale of Eyege, and of
his Amies, and his figne manuell, endented with the l.iyde Kinge to be his foldier b ■ a
ceitayne time, within the duchie of Normandye; callinge the fame Kinge in that wrightii ge
his foverayne Lord Kinge of Englande, and of France.

And after that, for as much as Richarde Erie of Cambridge which had wedded Ai ne
filler to the faide Edniond, and was grandfather to the faide Edwarde that now claimech,
had prively ftirred the faid Edmond Erie ol Marche, to have alfented unto tiie delfrufti'jn
of the faid Kinge Henrye the fifte, and to have taken upon him to have ben Kinge of
Englande, the fame Edmund as the Kinge's true Lyege man, and not claiminge to be Kini;e,
difcovered that treafon to the faide Kinge Henry the fifte, and caufed thereby the fami E.-le
of Cambridge his brother to be arrelled, which atterwarde was atteynted, and dyed therefore
by judgmente. Which proveth that the faide Erie L'timunde willed not to clayme the Crdune
of Englande. And the faid Kinge Henrye the fitte, for any clame made upon him by Ithat
Erie, did dye leafed therof. And then the Hime Croune and realme defcended unto the
forfeid Kinge Henry the lixt as to his fonne and heire, to whome the faid Ldmunde I£rie
of Marche did alfo homage Lyege while the Kinge was full tender of yeres. And then the
faide Edmunde dyed without illue of his bodie. After whofe deathe the Erledome of
Marche, and alfo of his liveloode.' .

Hie defuHi niulta.



' Of his Ineloodc, i.e. part of his tlhite. The word is thus ufed in tlie " Declamcion." further on. The red of
this fentence, from wliat is clfewliere llate<l, muW liave lein lo llie- follmviiiji elleOI ; — ■■ uas t^i\en to KR-liard
Duke of York the fonne of his filler Anne, by llie foielaid Kin^ Ilnus ihr I'.xlli, to whom the (aid Richard did
homage Hege for tlie fame."



Of the Title of the Hou/e of Tor k. 501

By which' me:ines it may openhe appeare, that faide Edwardc kite Erie of Marchc is
forckided and barred by all lawes ufed amonge Kinges, or princes perfonnes, and namely
within the realme of Englande, and alfo by naturall rcafoii, to clayme the Kingdomc
of Englande, for the which and all title to the fame his forfaide ancertors that lie claymeth
by, and alfo he himfelfe, have fo cleerely barred and concluded themielfe, and all tliei- heires
after them, by matters of recorde, as by lyvery, fuing in the Kinge's Courtes, Aftes of
Parlementes, matters in deed, as homages doinge, and by ther letters and ther feales figned
with ther handes, and by others, which be all the meanes of excludinge, barringe, and con-
cludinge themfelfe and ther heires, that can be had, or thowght to be hadd within the
realme of Englande. And if he had anie right to the iaide Crowne and realme of Englande,
which he had not, yet the fime right by the aforefaide meanes had be fully c]uenched
and extinct:.



Here foloiveth the third anjivere made after the Laive of God and of his church
loito the affoy/aide pretended title.

It IS fo that King Henrie the foiirthe and his foiine Kinge llenrie the fifte, and his fonne
the foriaide Henrie the fixt, have luccellively and peaceably, without clainie or interruption
made upon them by anie perfon, ben Kinges annoynted and crowned by the hole affcnt of all
the Lordes and Commons of Englande fixty three yeare and more. Which excedeth the
longeft prffifcription limited in the lawe of the Churche, except the pntfcription which
is required if anie title there fliall growe aganfle the Churche of Rome. And lithen title of
prsfcription is a fure and (trong title m the lawe of the Churche, the Iaide Kinge Ileniie the
fixt is furely and ftrongly entitled by the lawe ot the Church. Item Semt Auguftme faith



Online LibraryJohn FortescueThe works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (Volume 1) → online text (page 66 of 87)