king and crowne have great priviledge and prerogative above the state and affaires of subjects and great differences allowed in points of law As for example it is a generall common rule of law that the wife after the decease of her husband shall enjoy the third of his lands but yet the Queene shall not enjoy the third part of the Crowne after the Kings death as well appeareth by experience and is to be seene by law Anno 5. and 21. of Edward the third and Anno 9. and 28. of Henry the sixt Also it is a common rule that the husband shall hold his wives lands after her death as tenant by courtesie during his life but yet it holdeth not in a Kingdome In like manner it is a generall and common rule that if a man dye feased of Land in Fee-simple having daughters and no sonne his lands shall be divided by equall portions among his daughters which holdeth not in the Crowne but rather the eldest Daughter inheriteâ—h the whole as if she were the issue male So also it is a common rule of our law that the executor shall have all the goods and chattels of the Testator but not in the Crowne And so in many other cases which might bee recited it is evident that the Crowne hath priviledge above others and cannot be subject to rule be it never so generall except expresse mention be made thereof in the same law as it is in the former place and a statute alledged but rather to the contrary as after shall be shewed there is expresse exception for the prerogative of such as descend of Royall bloud Their second reason is for that the demand oâ— title of a Crowne cannot in true sense bee comprehended under the words of the former statute forbidding aliens to demand heritage within the allegiance of England and that for two respects The one for that the Crowne it selfe cannot be called an heritage of allegiance or within allegiance for that it is holden of no superiour upon earth but immediately from God himselfe the second for that this statute treateth onely and meaneth of inheritance by descent as heyre to the same for I have shewed before that Aliens may hold lands by purchase within our Dominion and then say they the Crowne is a thing incorporate and descendeth not according to the common course of other private inheritances but goeth by succession as other incorporations doe In signe whereof it is evident that albeit the King be more favoured in all his doings then any common person shall be yet cannot hee avoyd by law his grants and letters patents by reason of his nonage as other infants and common heires under age may doe but alwayes be said to be of full age in respect of his Crown even as a Prior Parson Vicar Deane or other person incorporate shall be which cannot by any meanes in law bee said to be within age in respect of their incorporations Whiâ—h thing maketh an evident difference in our case from the meaning of the former statute for that a Prior Deane or Parson being Aliens and no Denizens might alwayes in time of peace demand lands in England in respect of their corporations notwithstanding the said statute or common law against Aliens as appeareth by many booke cases yet extant as also by the statute made in the time of King Richard the second which was after the foresaid statute of King Edward the third The third reason is for that in the former statute it selfe of King Eâ—ward there are excepted expresly from this generall rule Infantes du Roy that is the Kings off spring or issue as the word Infant doth signifie both in France Portugall Spaine and other Countries and as the Latine word Liberi which answereth the same is taken commonly in the civill 〈◊〉 Neither may we restraine the french words of that Satute Infantâ—s du Roy to the kings children onely of the first degree as some doe for that the barrâ—nnesse of our language doth yeeld us no other word for the same but rather that therby are understood as wâ—ll the nephewes and other discendants of the king or blood Royall as his immediate children For it were both unreasonable and ridiculous to imagin that king Edward by this statute would go about to disinherit his own nâ—phews if hâ— should have any borne out of his own allegiance as easily he might at that time his sons being mâ—ch abroad from England and the black Prince his eldest son having two children borne bâ—yond the seas and consequently it is apparent that this rule or maxime set down against Aliens is no way to be stretched against the descendants of the king or of the blood Royall Their fourth reason is that the meaning of king Edward and his children living at such time as this statute was made could not be that any of their linage or issue might be excluded in law from inheritance of their right to the Crowne by their foraine birâ—h wheresoever For otherwise it is not credible â—hat they would so much have dispersed their own blood in other Countries as they did by giving their daughters to strangers other meanâ—s as Leoneâ— the kings third son was married in Millan and Iohn of Gaunt the fourth son gave his two daughters Philip and Katherine to Portugall and Câ—stâ—le and his neece Joan to the king of Scots as Thomas of Woodstocke also the yongest brother married his two daughters the one to the king of Spaine and the other to Dâ—ke of Britaine Which no doubt they being wise Princes and so neer of the blood Royal would never have done if they had imagined that hereby their issue should have lost all claime and title to the Crown of England and therefore it is most evident that no such bar was then extant or imagin'd The fift reason is that divers persons born out of all English dominion and allegiance both before the Conquest and since have bin admitted to the succession of our Crown as lawfull inheritours without any exception against them for their foraine birth As before the Conquest is evident in yong Eâ—gar Etheling borne in Hungarie and thence called home to inherit the Crowne by his great unckle king Edward the Confâ—ssor with full consent of the whole Realm the B. of Worcester being sent as Ambassador to fetch him home with his father named Edward the out-law And since the Conquest it appeareth plainly in king Stephen and king Henry the second both of them borne out of English dominions and of Parents that at their birth were not of the English allegiance and yet were they both admitted to the Crowne Yong Arthur also Duke of Britain by his mother Constance that matched with Geffray king Henry the seconds sonne was declared by king Richard his unckle at his departure towards Jerusalem and by the whole Realme for lawfull heire apparent to the Crowne of England though
against all the house and Line of Suffolke for first they say that Charlâ—s Bâ—andon Duke of Suffolke had a knowen wife alive wâ—en he married Mary Queen of France and consequently that neither the Lady Frances nor Elenor borne of that marriage can be lawfully borne And this is all I can heaâ—e them say against the succession of the Counâ—esse of Darby descended of Elenor. But against my Lord of Hartfords châ—ldren â—hat came from Franâ—es the eldest daughter I heare them alledge two or three bastardies more besides this of the first marriage For first they affirme that Henry Marquesse Dorset when hee married the Lady Frances had to wife the old Earl of Arundels sister who lived both then and many yeares after and had a provision out of his living to her dying day· wherby that marriage could no way be good Secondly that the lady Katherine daughter to the said Lady Frances by the Marques by whom the Earl of Hartford had his children was lawfully married to the Earle of Pembroke that now liveth and consequently could have no lawfull issue by any other during his life 3ly that the said Katherine waâ— never lawfully married to the said Earl Hartford but bare him those children as his Concubine which â—s they say is defined and registred in the Archb. of Canterburies court upon due examination taken by order of her Majesty that now reigneth and this is in effect so muâ—h as I have heard them all aledge about their affars It is much quoth I that you have said if it may be all proved Marry yet by the way I cannot but smile to heare my Lord of Leyâ—ester allow of so many bastardies now upon the issue of Lady Frances whom in time past when Iane her eldest daughter was married to his brother he advanced in legitimation before both the daughters of king Henry the eight But to the purpose I would gladly know what grounds of verity these allegations have and how far in truth they may stoppe from inheritance for in deed I never heard them so distinctly alledged before Whereto answeâ—ed the Gentleman that our friend thâ— Lâ—wyâ—r could best resoâ—ve that if it pleased hâ—m to spâ—ake without his fee though in some points alledged every other man quoth he that knoweth the state and common government of England may easily give his judgement also And iâ— the case of bastardy if the matter may be proved there is no dâ—fficulty but that no right to inheritance can justly bee pretended as also perhaps in the case of forraine birth though in this I am not so cunning but yet I see by experience that forrainers borne in other lands can hardly come and claime inheritance in England albeit to the contrary I have heard great and long dispâ—tes but such as indeed passed â—y capacity And if it might please our friend here present to expound the thing unto us more clearly I for my part would gladly bestow the hearing and that with attention To this answered the Lawyer I will glâ—dly siâ— tell you my minde in any thing that it shall please you demand and much more in this matter wherein by occasion of often conference I am somewhat perfect The impedâ—ments which these men alledge against the succession of king Henry the 8. his sisters are of two kinds as you see The one knowne and allowed in our law as you have well said if it may be proved and that is bastardy whereby they seek to disable all the whole Line and race of Suffolke as also Arbella of the second and later house of Scotland Whereof it is to small purpâ—se to speak any thing here seeing the whole controversie standeth upon a matter of fact onely to be proved or improved by records and witnesses Onely this I will say that some of these bastardies before named are rife in many mens mouthes and avowed by divers that yet live but let other men looke to this who have most interest therein and may be most damnified by them if they fall out true The other impediments which are alledged onely against the Qâ—eene of Scots and her 〈◊〉 are in number three â—s you recite them thâ—â— is forraine birth king Henries testament and Religion whereof â— am content to say somewhat seeing you desire it albeit there be so much published already in bookes of divers languages beyond the sea as I am informed concerning this matter as more cannot be said But yâ—t so much as I have heard passe among Lawyers my betters in conference of these affaires I will not let to recite unto you with this proviso and protestation alwayes that what I speake I speak by way of recitall of other mens opinions not meaning my selfe to incurre the statute of affirming or avowing any persons title to the crown whatsoever First then touching forraine birth there bee some men in the world that will say that it is a common and generall rule of our law that no stranger at al may inherit any thing by any means within the Land which in truth I take to be spoken without ground in that generall sense For I could never yet come to the sight of any such common or universall rule and I know that divers examples may be alledged in sundry cases to the contrary and by that which is expresly set downe in the seventh 〈◊〉 ninth years of king Ed. the 4. and in the â—lâ—venth â—nd fourteenth of Hen. thâ— 4. it appearâ—â—h plainâ—y that â— stranger mâ—y â—urchase lands in England as also â—â—herit by hâ—s wife if he marry an inheritrix Wherefore this common rule 〈◊〉 to bee restraâ—neâ— from that generality unto proper inheritance only â—n which sense I do easily grant that our common Law hath been of ancient and is at this day that no person born out of the â—llegâ—ance of the king of England whose father mâ—thâ—r were not of the same allegiance at the time of his birth shall be able to have or dâ—maâ—d any heritage within the same allegiance as heire to any person And this rule of our common Lâ—w is gathered in these sâ—lf same words of a statute made in the 25. year of king Ed. the third which indeed is the onely place of effect that can be alledged out of our law against the inheritance of strangers in such sense and cases as we â—re now to treat of And albeit now the commoâ— Law of our Country do runne thus in generall yet will theâ— friends of the Scottish claime affirme that hereby that title is nothing let or hindred at all towâ—rds the Crowne and that for divers manifest and weighty reasons whereof the principâ—ll are these which ensue First it is common and a generall rule of our English lawes that no rule Axâ—ome or Mâ—xima of law be it â—ever so generall can touch or bind the Crown except expresse mention bee made thereof in the same for that the
Court seeing that hee hath so many wayes and meanes to encrease enrich and encourage the same and so strong abilities to tread dowâ—e his enemies The common speech of many wanteth not reason I perceive which calleth him the heart and life of the Court. They which cal him the heaâ—t said the Gentleman upon a little occasion more would call him also the head and then I marvell what should bee left for her Majesty when they take from her both life heart and headship in her own Realme But the truth is that he hath the Court at this day in almost the same case as his father had it in King Edwards dâ—yâ—s by the same device the Lord forbid that ever it come fully to the same state for then we know what ensued to the principall and if you will hâ—ve an evident demonstration of this mans power and favâ—ur in that place call you but to minde the times when her Majesty upon most just and urgent occâ—sions did withdraw but a little her wonted favour and countenance towâ—rds him did not all the Court as it were mutiny presently did not every man hang the lippe except a few who afterward paid sweetly for their mirth were there not every day new devices sought out that some should be on their knees to her Majesty some should weepe and put finger in their eyes other should find our certaine covert manner of threatning other reasons and perswasions of love other of profit other of honour other of nâ—â—essity and all to get him recalled back to favour againe And had her Mâ—jesty any rest permitted unto her untill she had yeelded and granted to the same Consider then I pray you that if at that time in his disgrace he had his faction so fast assured to himself what hath he now in his prosperity after so many yeares of fortification wherin by all reason he hath not been negligent seeing that in policy the first point of good fortification is to make that fort impregnable which once hath been in danger to be lost Wherof you have an example in Riâ—harâ— Duke of York in the time of K. Henry the sixt who being once in the Kings hands by his own submission and dismissed againe when for his desâ—rts he should have suffered provided after the King should never be able to over-reach hâ—m the second time or havâ— him in his power to do him hurt but mâ—de himselfe strong enough to pull downe the other wiâ—h extirpation of his family And this of the Court houshold and Chamber of her Majesty But now if we shall passe from Couâ—t to Councell we shall find him no lesse fortified but rather more for albeit the providence of God hath bin such that in this most honourable assemblie there hath not wanted some two or three of the wisest gravâ—st and most experienced in our state that have seen and marked this mans perillous proceedings from the beginning wherof notwithstanding two are now deceased and their placeâ— supplied to Leyceâ—ters good liking yet alas the wisdom of these worthy men hath discovered alwayes more then their authorities were able to redresse the others great power and violence considered and for the residue of that bench and table though I doubt not but there be divers who do in heart detest his doingâ— as there were also no doubt among the Councellours of King Edward who misliketh this mans fathers attempts though not so hardy as to contrary the same yet for most part of the Councell present they are known to be so affected in particular the one for that he is to him a Brother the other a Father the other a Kinsman the other an allie the other a fast obliged friend the other a fellow or follower in faction as none will stand in the breach against him none dare resist or encounter his designemeâ—t but every man yeelding rather to the force of his flow permitteth him to pierce and passe at his pleasure in whatsoever his will is once setled to obtaine And hereof were I not staied for respect of some whom I may not name I could alledge strang examples not so much in affaires belonging to subjects and to privat men as were the cause of Snowden forrest Denbigh of Kilâ—ingworth of his faire Pâ—stures fouly procured by Southam of the Archbâ—sh of Canterbury of the L. Baâ—kley of Sir Iohn Throgmarton of M. Robâ—nson and the like wherin those of the Councell that disliked his doings least dâ—red to oppose themselves to the same but also in things that appertaine directly to the Crown and dignity to the State and Common-weal and to the safety and continuance therof It is not secure for any one Councellor or other of authority to take notice of my Lords errours or misdeeds but with extreame perill of their owne ruine As for example in the beginning of the rebellion in Ireland when my Lord of Leycester was in some disgrace and consequently as hee imâ—gined but in fraile state at home he thought it not unexpedient for his better assurance to hold some intelligence also that way for all events and so he did whereof there was so good evidence and testimony found upon one of the first of accompt that was there slaine as honourable personages of their knowledge have assured me as would have beene sufficient to touch the life of any subject in the land or in any state Christian but onely my Lord of Leycester who is a subject without subjâ—ction For what thinke you durst any man take notice hereof or avouch that he had seen thus much durst he that tooke it in Ireland deliver the same where especially hee should have done or they who received it in England for it came to great hands use it to the benefit of their Princesse and Countrey No surely for if it had beene but onely suspected that they had seene such a thing it would have beene as dangerous unto them as it was to Action to have seene Diana and her maidens naked whose case is so common now in England as nothing more and so doe the examples of divers well declare whose unfortunate knowledge of too many secrers brought them quickly to unfortunate ends For we heare of one Salvatour a stranger long used in great mysteries of base affaires and dishonest actions who afterward upon what demerit I know not sustained a hard fortune for being late with my Lord in his study well neare untill midnight if I be righâ—ly informed went home to his chamber and the next morning was found slaine in his bed Wee heare also of one Doughâ—y hanged in haste by Captaine Drake upon the Sea and that by order as is thought before his departure out of England for that he was over privy to the secrets of this good Earle There was also this last Summer past one Gates hanged at Tiborne umong others for robbing of Carriers which Gates had beene lately Clâ—rke of my Lords
he were borne in Britaine out of English allegiance and so he was taken and judged by all the world at that day albeit after king Richards death his other uncle Iohn most tyrannously took both his kingdome and his life from him For which notable injustice he was detâ—sted of all men both abroad and at home most apparently scourged by God with grievous and manifold plagues both upon himself and the Realm which yeelded to his usurpation So that by this also it appeareth what the practice of our Countrey hath beene from time to time in this case of forraine birth which practice is the best intâ—rpreâ—er of our common English law which dependeth especially and most of all upon custome nor can â—he adversary alledge any one example to the contrary Their sixt is of the judgement and sentence of King Henry the seventh and of his Councell who being together in consultation at a certaine time about the marriage of Margaret his eldest daughâ—er into Scotland some of his Councell moved this doubt what should ensue if by chance the kings issue male should faile and so the succession devolve to the heyres of the said Margaret as now it doth Whâ—reunto that wâ—se and most prudent Prince made answer thâ—t if any such event should be it could not be prejudicialâ— to Englâ—nd being the bigger part but rather beneficiall for that it should draw Scotland to England that is the lesser to the more even as in times past it happened in Normandy Aquitaine â—nd some other Provinces Which answer appeased all doubts and gave singular content to those of his Councell as Polidore writeth that lived at that time and wrote the speciall matters of that reigne by the kings owne instruction So that hereby wee see no question made of king Henry or his Councellors touching forraine birth to let the succession of Lady Margarets issue which no doubt would never have beene omitted in that learned assembly if any law at that time had beene esteemed or imagined to beare the same And these are six of their principallest reasons to prove that neither by the words nor meaning of our common lawes nor yet by custome or practice of our Realme an Alien may bee debarred fâ—om claim of his interest to the Crowne when it falleth to him by righfull descent in blood and succâ—ssion But in the particular case of the Queen of Scots and â—erson they doe adde another reason or â—wo thâ—reby to prove them in very deed to be no Aliens Not only in respect of their often and continuall mixture with English blood from the beginning and especially of late the Queens Grandmother and husband being English and so her sonne bâ—goâ—ten of an English father but also for two other causes and reasons which seeme in truth of very good importance The first is for that Scotland by all Englishmen howsoever the Scots deny the same is tâ—ken and holden as subject to England by way of Homage which many of their kings at divers times have acknowledged and consequently thâ— Queene and her son being borne in Scotland are not borne out of the allegiance of England and so no forrainers The second cause or reason is for that the forenamed statute of forrainers in the 25 yeare of King Edward the third is intitled of those that are borne beyond the seas And in the body of the said statute the doubt is moved of children borne out of English allegiance beyond the seas whereby cannot bee understood Scotland for that it is a piece of the continent land within the seas And all our old Records in England that talke of service to bee done within these two countries have usually these Latin words Infraquatuor mâ—ria or in French deins lâ—zquâ—tre mers that is within the foure Seas whereby must needs be understood as well Sâ—otland as England and that perhaps for the reason before mentioned of the subjection of Scotland by way of Homage to the Crowne of England In respect whereof it may be that it was accounted of old but one dominion or allegiance And consequently no man borne therein can bee accounted an alieâ— to Englaâ—â— And this shal suffice for the first point touching foragine Nativity For the second impediment objected whâ—ch is the testament of King Henry the eight authorized by Parliament wherby they affirm the succession of Scotland to be excluded it is not precisely true that they are excluded but onely that they â—re put back behinde the succession of the hous of Suffolk For in that pretended Testament which after shâ—ll be proved to be none indeed King Henry so disposeth that after his own children â—f they shold chance to dye without issue the Crowne shall passe to the heires of Frances of Elenor his neeces by his yonger sister Mary Queene of France and after them deceasiâ—g also without issue the succession to returne to the next heire againe Whâ—rby it is evident that the succession of Margarâ—t Queene of Scotland his eldest sister is not excluded but thrust back onely from their due place and order to expect the remainder which may in time be left by the yonger Whereof in mine opinion doe ensue some considerations against the present pretenders themselves First â—hat in King Henries judgement the former pretended rule of foraine birth was no sufficient impediment agaiâ—st Scotland for if it had bin no doubt but that he would have named the same in his alleaged testament and thereby have utterly excluded that successioÌ„ But there is no such thing in the testament Secondly if they admit this testament which alotteth the Crown to Scotland next after Suffolk then seeing that all the house of Suffolk by these mens assertions is excluded by bastardy it must needs follow that Scotland by their own judgement is next so this testament wil make against them â—s indeed it doth in all points most apparantly but only that it preferreth the house of Suâ—â—olk before that of Scotland And therefore I think sir that you mistake somewhat about their opinion in alleaging this testament For I suppose that no man of my Lord of Huntingtons faction will alleage or urge the testimony of this testament but rather some friend of the house of Sâ—ffâ—lk in whose favour I take it that it was first of â—ll fâ—rged It may be quâ—th the Gentleman nor will I stand obstinatly in the contrary for that it is hard sometime to judge of what faction each one is who discoursâ—th of these affâ—irâ—s But yet I marvel â—f it were as you say wâ—y Lâ—ycesters Father â—fâ—er K. Edwardâ— death made no mention therof in the favor of Suffolk in the other testament which then he proclaimed as made by K. Edward deceased for preferment of Suffolk before his own sisters The cause of this is â—vident quoth the Lawyer for that it made not sâ—ffiâ—iently for his purpose which was to disinherit â—he two dâ—ughters of King Henry himselfe and advance the