equal to him to whom he is sent and is in Law no way lyable to his Jurisdiction And this is amongst others the opinion of Alberic Gentil an Engglish Lawyer de Legationibus l. 2. c. 10. And it is clear from Liv. lib. 6. lib. 43. 2. King Henry of England being to enter upon a War with Simeon Earl of Leister did intreat Supply from Alexander King of Scots and lest this might inferr any Acknowledgement of his Superiority he did by Letters under his hand and by his Ambassadours publickly declare that he did not crave this aid as Superiour to which Superiority he had no pretence 3. The same King Alexander being invited to assist at the Coronation of King Edward and being unwilling to go there lest it might inferr an acknowledgement King Edward did declare Quod non ex Debito sed ex Gratia tantummodo hoc petebat 4. The same King Alexander being to make homage in England to king Edward for the Lands of Penrith and Tindale which he held of king Edward he did publickly protest Quod non pro Regno Scotiae sed pro terris in Anglia dictum Homagium faciebat Rexque iste Angliae hujusmodi Homagium admisit per quod praesumitur talia fuisse similia prius facta homagia Regno Angliae per Reges Scotiae Nam talia fuisse praesumitur quale fuit illud declaratum expositum Homagium nam talia sunt subjecta qualia praeadicata admittunt which are the very Words used in the Answer made by the Scots before the Pope where all the former four instances are fully discussed and were offered to be proved by Witnesses beyond all Exception the Writs themselves having been designedly taken away by king Edward And Fordon has in his History unprinted Copies of several Letters written by the said Pope Boniface and others declaring that those Instances consisted in their knowledge and some of those Instances are fully repeated by Duchesne pag. 661. who is to be believed since he is a Stranger And even Matthew Paris a Learned English Historian does declare That king Richard the first did when he was going to the Holy War disclaim this pretended Superiority over Scotland anno 1188. Which Disclamation is likewise observed by Hovedean another Historian of the same Nation And when Matthew Paris speaks of the Homage done to the king of England he makes it only to be for his Lands in England Rex Scotorum Willielmus fecit Homagium Regi Anglorum Ricardo de jure suo in Anglia Which is ordinarly the stile used by Historians when they writ of this Subject And thus Duchesne sayes that Alexander made Homage to Henry the third for his possessions in England but refused to make him Homage for Scotland and that king Alexander sent a Cartell to king Henry for asserting that he had made him Homage for Scotland The Copy of the Homage is yet extant at Rome and the minute of it is thus exprest in the Records of our old Abbacies Memorandum anno Gratiae milesimo ducentesimo septuagesimo octavo Apostolorum Simonis Iudae apud Westmonasterium Alexander Rex Scotiae fecit Homagium domino Edwardo Regi Angliae filio Regis Henrici sub his verbis Ego devenero hominem vestrum pro Terris quas de vobis teneo in Regno Angliae de quibus Homagium vobis debeo salvo regno meo tunc dixit Episcopus Norvicensis salvum sit Regi Angliae si jus habuerit ad homagium vestrum de regno cui Rex statim respondit aperte dicens ad homagium regni mei Scotiae nullus jus habet nisi solus DEUS nec de ullo teneo nisi solo DEO 4. King Alexander having dyed without Males Edward the first treated for a Marriage betwix Margaret Princess of Scotland called the Maid of Norway and Edward his son In which there are many pregnant Acknowledgements of this Freedom Volentes concedentes quod deficientibus praedictis Edwardo Margarita vel eorum altero absque Liberis extantibus in omni casu eventu in quo ad proximiores haeredes regnum praedictum debeat de jure reverti integre habere absolute absque ulla subjectione revertatur restituatur iisdem And in the close of that paper it is said That there shall be no prejudice done to either of the kingdoms Quin libere habeant statum suum And in the Deputation given by the Governours of Scotland dated at Melross anno 1289. for treating that Marriage this express Reservation is insert Salvis tamen in omnibus singulis per omnia Libertate Honore Regni Scotiae Which Reservation is likewise insert in a Warrand granted by king Edward for treating the said Marriage And it is observable That in all the Scottish Addresses to him and accepted by him he is only designed Rex Angliae Dominus Hiberniae Dux Aquitaniae but never designes himself Dominus superior Scotiae till after the War which shews that his former airie Title was very unjust 9. As the kings of England have acknowledged the Scots to be no Vassals so have their Laws and Lawyers For it is contented by these That the Scots were Aliens to England and could not have succeeded to any Estate in England without being Naturalized whereas alibi genitura presupposes that the alibi nati are not Vassals For this jus alibi geniturae called by the French droit d' aubeyne is settled upon this Maxime of the Feudal Law That because Feus are granted by Over-lords or Superiours upon designe and promises that their Vassals shal serve them upon all occasions against all persons and never reveal their secrets nor conceal what may be their disadvantage therefore Feudalists do justly conclude That no man can be Leidge man to two supreme Superiours or Over-lords because these Duties are imprestable to both seing the secrets of the one may be incompatible with the Safety of the other and they may by warring against one another distract the Alleadgeance of their Vassal And because men are more prone to serve their Native Prince then others therefore Strangers are alwayes suspect nor have they allowance to sell the Feus to which they succeed lest they should carry away the price out of the Country and possibly imploy it against the same Country Which principle seems at first to have flowed from the Roman Law by which the Goods of Strangers dying in Rome fell to the Exchequer or Fisk fiebant caduca With this foundation of the Feudal Law founded upon so clear Reason do the Customs of other Nations agree who account not these Aliens who live under the same Alleadgeance Thus Rageau pag. 67. Aubains sont estrangers mais 〈◊〉 qui n' est pa de la soveraignete de la Courounne de France Vid. Bacquet du droit d' aubeyne printed in the year 1557. And by the Custom of Milain the Expertest Feudalists of all the World alibi genitura extends not to
any who have sworn Alleadgeance and live within the Spainish Dominions though not within Milain since then the English would not allow us the Right of Sucession nor the other benefits due naturally to Subjects it was strangely monstruous and repugnant that they designed to make the World believe that we were Subjects It is also very remarkable that if our Kingdom had been only a Feu holding of England our Nobility could not have precedency from others according to their Antiquity for all the Nobility of the Superiour Kingdom ought in the opinion of such as writ of precedency to be preferred to these who live in the Vassal-kingdom 10. If Scotland had been a Feu to England the king of England as Superiour would have had the keeping of our young Princes and the disposing of them in Marriage and the Feu would have been in his hand during their Minority that being implyed in the Right of proper Feus by the Feudal Law And this must be presumed to have been a proper Feu as all Feus are presumed to be except the Vassal can prove that the Nature of the Feu was impropriated for the Vassals Advantage But yet no king of England did ever pretend to the Guardianship of our young Princes nor to name Governours during their Minority But on the contrare Alexander king of Scotland having left only a young Princess called Margaret who was Nice to the King of England he did not pretend to the keeping of the young Princess but intreated that she might be married to Edward the second his son and that if there should be no issue of that Marriage Scotland should remain a free Kingdom as it was formerly inthe dependent from all pretentions of the kings of England Which is likewise another acknowledgement made by the kings of England themselves of the independency of Scotland And if the kings of England had been Superiours of Scotland there would have been some Vestige of this Superiority to be seen in our Laws whereas all our Laws call still our Crown the Imperial Crown of Scotland Or in our Coyne all Coyns bearing some Impressions from the Superiour And the Kings of England might have remanded from our Courts or out of our Country such as had committed crimes against their kings or Laws It being an undoubted principle of the Feudal Law That qui habet dominium directum potest jurisdictionem suam explicare tam in territorio Vassalli quam in suo habet enim dominus jurisdictionem cumulativam cum Vassallo But so it is that it can never be alleadged That the Kings of England offered to exerce any Jurisdiction in Scotland or did require any criminals who had fled into Scotland to be delivered up to them Nor did ever the English pretend to punish such Scotsmen as were taken fighting against them abroad as Traitors and Guilty of Treason as certainly they would have done if they had been Vassals to England But on the contrair the English did also ransome them and use them every way as they did other Strangers and Forreigners 11. The Scots having intended a Declarator of Freedome against Edward the first king of England the Process was delegated by Pope Boniface the VIII to Baldredus one of the greatest Lawyers of that time who considered very fully the Reasons proponed hine inde by both parties and having made a full Report to the Pope the Pope did very sharply reprove the king of England and declared that Scotland did not depend upon it any manner of way and that the English had attacked Scotland most unjustly against all both Divine and humane Laws as Duchesne observes pag. 66. The Letter it self that was writ to the king of England with all the process which was called Processus Baldredi being yet extant in Fordons Chronicle And it cannot be denyed but that England might have expected much more favour from the Pope than Scotland could since they payed him a constant Revenue called Peters pence and since England was known to afford much greater Casualties to the Pope then could have been expected from this kingdom In stating the Arguments which are proposed by the English for proving that the kings of Scotland were Vassals for their Crown to England I shall begin with these which were insisted upon by King Edward the 1. in the former process The first was That Brutus descended from the Trojans did conquer Britain and divided it amongst his three sons to the Eldest of whom called by Historians Locrin or Locuus as he is termed in that process he left Logria now called England To the Second called Albanactus he left Albanie now called Scotland To the Third called Camber he left Cambria now called Wales But Humbert King of the Huns having killed Albanactus Locrin the elder to revenge his brothers Death did kill Humbert and reunite Albanie to Logria or England The second was That Donvall king of the Britans killed Staterius king of Scotland who rebelled against him and became Master of the whole Isle which Dunvall having two sons Belinus and Brounus he left the Superiority of Scotland with England to the eldest and the property only of Scotland to the second The third was That Arthur king of the Britans having overcome Scotland he gave that kingdom to Angusell who acknowledged him as his Superiour and carried the Sword before him The fourth was That Aldestan king of England having conquered Constantine king of Scotland did pray to GOD that by the intercession of St. Iohn de Benlaco he might by a miracle be declared the just Superiour of Scotland Whereupon he did strick with his sword at a Rock near Dumbar and made a Gape in it a full yard in length The fifth was That William king of Scotland did acknowledge himself Vassal to William the Conquerour Alexander king of Scots acknowledged himself Vassal to king Henry And that the Nobility of Scotland called in the said Edward to arbitrate the Differences betwixt the Bruce and Baliol. Peter Heylen speaking of Scotland in his Geographie pag. 1289. affirms That the Kings of Scotland were still Vassals to the Crown of England which he endeavours to confirm by these Arguments 1. By the Homages Services and other Duties done by the kings of Scotland to those of England Malcome the third doing Homage to William the Conquerour as William one of his Successors did to Henry the second and that not only for three Counties in the North of England or the Earldome of Huntingdoun as is by some pretended but for the very Crown it self Kenneth the third being also one of those Titulary or Vassal Kings who rowed king Edgar over the Dee 2. By the interposing of king Edward the first and the Submission of the Scots to that interposing in determining the Contraversie of Succession betwixt Bruce and Baliol as in the like case Philip the fair adjudged the Title of Artoys which was holden of the Crown of France and then in question betwixt the Lady Mawd
16. l. 40. for imitating r. intimating l. 44. for then r. when p. 20. l. 20. r. filiolem p. 27. l. 2. r. was not then decided p. 31. near the foot r. aliis Magnatibus l. penult r. sons p. 39. l. 32. r. Senescallo p. 46. l. 44. r. his Procutor l. 47. for Antoun r. Aiton p. 69. Quest. 11. l. 2. r. current p. 74. Quest. 17. l. 14. r. defective p. 77. l. 5. r. officium l. 10. dele at the same time p. 80. l. 2. for perceed r. precede p. 91. l. 36. r. unnecessar Literal faults and errours in the Pointing may be easily perceived by the Reader Advertisement from the Author to be subjoyned to the third Chapter of the Precedency BEing desired to prove that from Chronology it is Impossible that Kenneth 3. King of Scots did row Edgar King of the English Saxons over the Dee I prove it thus Kenneth the 3. did not Succeed to the Crown of Scotland till the Year 977. At which time Ethelred Edgars youngest Son did Reign in England Ethelred having begun his Reign Anno 975. two Years before Kenneths coming to the Crown of Scotland It is also remarkable that Heylen relates that the King of Scotland was ordained at the Council of Constance to precede the King of Castile as being one of the five absolute Monarchs which was inconsistent with his being a Tributary or Homager Prince This was done in Presence of the King of Englands Ambassador who reclaimed not as certainly he had done if the King of Scotland had been Vassal to his Master By all which we see how solidly Heylen writes upon this Subject And the learned Speed doth in his History of Great Britain most Solidly and Modestly in many Parts thereof clear us from this pretension and especially in the Life of William the Conqueror who to clear Marches between Scotland and England did set up a Cross at Stranmoor with the Arms of England on the South side and the Arms of Scotland on the North side The King of Scotland doing only Homage for Cumberland And in the Life of Edward the first when some of the Great Men of Scotland waited on Edward in Northumberland in the Controversie betwixt the Bruce and Baliol he sayes that Edward made then claim to the Superiority of Sotland alledging that the Crown of Scotland was holden of him To whom the Scots replyed that they were ignorant that any such Superiority belonged to the King of England neither could they make answer to such things without a King c. And that thereupon the King delivered to them his Letters Patents in which he acknowledged that the coming of those Scots on this side the Water of Tweed should not be at any other time urged to prejudice them for coming again into England That is sayes he that their example should not so be drawen to an Argument of King Edwards right over them as if they were to come again upon Duty So prudently jealous sayes this Author were these Patriots of their Countries Liberty And a little after he acknowledges that King Edward was then Plotting this Homage because Scotland wanted a Head He also confesses that Baliol lost the love of the Scots by the Homage he had made and that by Letters to King Edward he did afterward renounce this Homage as being contrary to his Oath as extorted by violence and as being made without consent of the three Estates And speaking of King Edwards big Oath as that he swore by the Lord he would consume all Scotland from Sea to Sea if he heard any more debate in that adds that the Scots did boldly enough reply that in this Cause they would shed their blood for defence of Justice and their Countries liberty And further in the Reign of Edward the third he observes that this short lif'd pretence was renounced by that King who quitted Scotland of all claim and pretence of right to the Superiority thereof and delivered up the Roll called Ragmans Roll wherein were contained the Names of those few Scots who had been forced to acknowledge this Superiority Advertisement from the Printer IT being objected by some who are not so well acquainted with the methods taken by Heraulds in handling the Art of Blasoning that many old Sirnames and Noble Families of this Kingdom are omitted and not set down in the Treatise of Herauldry and others of less Note insert To satisfie such it is answered that the Author did never design as no other Writer on that Subject ever did to publish a Register of all the Sirnames and Bearings in the Nation These being to be found in the Lyons Registers only nor does he intend any advantage to such as are insert or disadvantage to such as are left out as not being induced to name any for instances of Bearings either from the Antiquity and greatness of the Families and Sirnames or his relation and kindness to them but meerly from the specifick suitableness of their Armes to the several kinds of Charges and Ornaments Treated of throughout the Work It is to be noticed that the observe made Preced p. 52. l. 4. of a mistake committed p. 42. is now unnecessary The Sheet wherein that mistake was being since Re-printed OF PRECEDENCY CHAP. I. The Precedencie of Kings and Common-wealths MENS Ambition as well as Curiosity doth breed in them a Desire to understand this Subject which is a part of the Civil Law and Law of Nations exceeding as far all other parts of the Law as Honour exceeds Money But the same Ambition which makes men very curious to know this Subject will make them very unwilling to hear any thing that may decide against themselves And so such as writ upon it run a great risque of Displeasing those whom they intended to Satisfie But my designe being to defend and inform my own Countrey I shall be little disappointed though I want praise and esteem since I do not deserve or expect either And he is an unworthy man who does not think the serving his Countrey a sufficient Sallarie for greater Pains than I have here bestowed Amongst those who are Supreme Kings have the Preference from Commonwealths and amongst Kings the Emperour is allowed the first place by the famous Ceremonial of Rome as succeeding to the Roman Emperours who are alleadged to have been Universal Monarchs Because in Scripture they are said to have taxed the whole world And therefore the German and Italian Lawyers who are subject to the Empyre have with very much Flattery asserted that the Emperour is the Vicar of GOD in Temporals Bald. in l. 1. c. de Iure aur an And that Jurisdictions are derived from him as from the Fountain calling him Dominum Caput totius Orbis And for this they do very impertinently cite several Texts of the Civil Law which being Laws made by the Romans themselves cannot bind or prove against other Nations Nor is the Translation of the old Roman Dignity upon Charles le maigne
their Monuments or Records And it is clear that we had Charters for these Lands we held in England and that England had Charters at the same time for the Lands they held in France And it is very observeable that in the Reign of King Edward the 1. that King stiles himself Rex superior Dominus Regni Scotiae during his violent Usurpation over Scotland whereas never any King of England did so formerly And yet if they had had any such pretensions they had assumed the same Titles but this imaginary Title began and ended with the Force which only maintained it 3. The English cannot condescend upon any Reason which might have prevailed with the Scots to have become Vassals to England nor any particular time when they first became Vassalls and all they can alleadge is That upon some impressions of Force some of our own Kings being prisoners or some of our people being opprest they did elicite from them acknowledgements of a Vassalage formerly stated Whereas Force renders all acknowledgements null and that these acknowledgements were null upon many other Accounts and that the Kings of England have been forced to grant the like to other Princes shall be proved clearly in answer to the Instances which the English adduce 4. Scotland has been habite and repute and acknowledged to be a free Monarchie and their Kings Independent and Supreme and that not only by all Forreign Princes the best Judges in this Case who have received and preferred their Ambassadours as the Ambassadours of free Princes but even in General Councils the King of Scotland has been preferred to the Kings of Castile Hungary Pole Navarr Cyprus Bohemia Denmark and thus they were ranked by Pope Iulius the II. anno 1504. vid. Besold sinop. doct politicae lib. 20. cap. 10. Which could not have been done if he had been only a Feudatory Prince since all free princes are preferred to all feudatory princes Yea and if Scotland had been Vassals to England for the Crown of Scotland the Kings of England had certainly craved and obtained the precedency from other Kings upon that account since he had been Rex Regum And since France craved to be preferred to Spain because the king of England was his Vassal as Chassanaeus observes part 5. consider 19. so much rather ought the Kings of England to have been preferred because they might have alleadged that there was a Crown holden of them whereas they held only some Feu-Lands of the kings of France 5. Not only Christian Princes and Councils but even Popes have declared Scotland to be a Free Kingdom and Independent from England And thus Pope Honorius allowed to Scotland That is Subjects should not be obliged to answer by way of Appeal to any Court without their own Kingdom salva solummodo authoritate sedis Apostolicae 2. Edward king of England having petitioned Pope Innocent the IV. that the Kings of Scotland might not be Anoynted or Crowned without his Knowledge quod non posset se facere ipso inscio in Regem coronari vel inungi the said Pope did refuse the same presentibus procuratoribus parium in Consilio Lugdunensi satis per hoc determinans Regnum Scotiae Regno Angliae non subesse 3. The King of England having likewise petitioned the same Pope Innocent that he might have Liberty to Collect the Tiths of Scotland since he had Right terrarum omnium suae jurisdictioni subjectarum the same was also refused 4. Pope Boniface the eight does in a Letter to Edward king of England Declare That ad celsitudinem regiam potuit pervenisse qualiter ab antiquis temporibus c. quodque Regnum Scotiae sicut accepimus a progenitoribus tuis Regni Angliae Regibus feudale non extitit nec existit c. The copy of which Letter I have at present and Duchesne writing the History of Great Britain does pag. 661. relate That le mesine Pape renvoya d' autres Lettres au roy d' Anglterre pour soustenir que le royaume de Escosse ne dependoit point d' Anglterre que contre le droit Divin la justice il s' en vindicoit la subjection That is to say The same Pope sent Letters at the same time to the King of England in which he maintained That the Kingdom of Scotland was no way subject to that Kingdom and that his seeking to subject it to him as superiour was contrare to the Law of GOD and Men. 6. By the Feudal Law and Law of Nations a Vassal cannot Mortifie any part of his Feu without the consent of his Superiour because the Superiour by the Mortification looses the Services due to him out of his Feu Church-men being obliged to no reddendo but Praeces Vota And therefore in all Mortifications made by Vassals the Superiours Confirmation is still required and it cannot be imagined but that if Scotland had been a Feu holding of England the Popes their Conclaves and the Monastries themselves would have sought Confirmations from the Kings of England of the Mortifications made by the Kings and Subjects of Scotland there being more Erections of that kind in Scotland than in any Nation of equal Revenue and yet never any such Confirmation was sought or pretended to But on the contrare the Pope still confirms these Erections as made per Reges Scotiae as he does in all other Nations or the Kings of Scotland confirm these Erections if they be made by any of his Vassals and it is observable that the Pope does in these Confirmations designe our King Regem Scotiae and not Scotorum 7. The Historians also of other nations did concurr with those of our Nation in asserting this freedom and thus Arnisaeus the best Lawyer who has writ upon these politick questions does look upon this pretence as a meer fiction lib. 1. cap. 5. Anglus Scotorum regem habebat sibi fiduciarium sive ratione aliquot regionum sive ratione ipsius regni ut nimis audacter asserit Math. Steph. Nam haec vetustate temporis obscuritate authorum sunt incerta And Duchesne pag. 21. speaking of Scotland asserts positively That its Kings does recognosce no Superiour but GOD and is every way a Soveraign Prince notwithstanding of the old pretentions of England Le Roy le possede en toute souverainté sans recognoistre au cun superieur que dieu bien que c ' estoit ancienne praetension des Anglois que le Roy D'escosse est vassal de leur couronne 8. Not only have forreign Princes General Councils and the Lawyers and Historians of other Nations declared Scotland to be a free Kingdom but even the Kings of England have acknowledged this freedom and independency as may appear by these instances 1. The King and Parliament of England have treated with the Ambassadours of Scotland whereas no Superiour can treat with his own Vassal as a forreigner nor can a Vassal send Ambassadors to his Superiour for an Ambassadour must be
and her Nephew Robert Or as king Edward the third in the Right of the said Crown of France determined of the Controversie betwixt Iohn Earl of Montford and Charles of Bluis for the Dukedom of Bretaigne 3. By the Confession and acknowledgement of Prelats Peers and others the Estates of Scotland subscribed by all their hands and seals in the Roll of Ragman wherein they did acknowledge the Superiority of the kings of England not only in regard of such Advantages as the sword had given him but as his original and undoubted Right Which Roll was treacherously delivered into the hands of the Scots by Roger Mortimer Earl of March in the begining of the Reign of king Edward the third 4. By the tacite Confession of the kings themselves who in their Coyns Commissions and publick Instruments assume not to themselves the Title of kings of Scotland but of Reges Scotorum or the kings of the Scots and thereby imitating that though they are kings of the Nation yet there is some Superiour Lord king Paramount as we may call him who hath the Royalty of the Land 5. By the Judgements Arrests of the Courts of England not only in the times of king Edward the first but in sometimes since For â—hen William Wallace a Scotsman by birth and the best Souldier of that Country was taken prisoner and brought to London he was adjudged to suffer Death as a Traitor which had been illegal and unrighteous judgement had he been a prisoner of War and not lookt upon by the Judges as subject to the Crown of England The like done in the case of Simeon Fraâ—â—ll another of that kingdom in the same kings Reign In like manner in the time of king Edward the third it was resolved in the Court in the Lord Beaumonts case when it was objected That one of the Witnesses was a Scot and therefore as an Alien not to give his evidence that his Testimony was to be allowed because the Scots in the Law of England did not go for Aliens And when one indicted for a Rape in the thirteenth year of Queen Elizabeths Reign desired a medietatem linguae because he was a Scots-man and so an Alien it was denyed him by the Court because the Scots were not reputed here as Aliens but as Subjects rather So also when Robert Vmsramville Lord of Kyme was summoned to the Parliament of England in the Reign of king Edward the third by the name of Robert Earl of Angus which is a Dignity in Scotland and after in a Writ against him was called by his own name of Vmsramville without any Addition of that Honour the Writ was adjudged to abate which I conceive the Learned Judges had not done if Scotland had not been reputed to be under the Vassalage of the kings of England 6. And lastly by a Charter of Lands and Arms which I have in my Custody granted by king Edward the first in the last year of his Reign to Peter Dodge of Stopworth in the Countie of Chester one of the Ancestors of my mother In which it is exprest that the said Lands and Arms were conferred upon him by that king for his eminent Services encontre son grand enemi rebel Baliol king of Scotland and Vassal of England In Answer to these Objections founded upon the Reign of Brutus I need say no more save that Cambden and the other Learned English Writers do look upon the same as a meer fiction And for proving the Crown of Scotland to hold of England there must be authentick Documents in Writ produced as has been formerly debated And this does sufficiently answer all that is said of Bellinus king Arthur c. But to refute these Fictions and to show how much of Cheat is in all these Contrivances I need only cite a passage from the Learned Aylet Sammes in his Britannia antiqua pag. 159. whose words are That which gave some Authotity to this Fiction was the use king Edward the first made of it in vindicating his Title to Scotland against the pretence of Pope Boniface and the Church of Rome who laid claim to that kingdom by ancient Right as part of St. Peters Patrimony and that Churches Demesne It appears that the Monks and Friers had a great hand in making out this Title by Brute which story was now new vampt and from all parts sent out of these shops where at first it had been forged and hammered out And this doth more evidently appear if we consider many other parts of the same Letter as it is found in the Records cited by Mr. Prin but especially that miracle of king Adelstane who in perpetuam rei memoriam to give an evident signe of his Right to Scotland with his sword struck a blow upon a Rock near Dumbar that he Cleft it at least an Elne wide As to the Homage made by king Malcome to William the Conquerour it is answered That the matter of Fact is absolutely denyed And not only do our Historians and the Historians of Forreigners mention no such submission but they do on the contrair relate That William the Conquerour having come with a Designe to conquer Scotland he was forced by Malcome king of Scotland to a Peace very Honourable and Advantagious for Scotland one Article whereof was That William the Conquerour should restore such of the English Nobility as had fled to Scotland for shelter to their Estates and Honours And how can it be imagined that Scotland being then very Unite and living under a most warlike Prince would have submitted to a king who had too much to do at home or that King Malcome would have submitted to him whom he forced to restore even the English who had Rebelled against him And as the Constitution of Vassalage requires Writ so if any such Vassalage had been acknowledged he had accepted of a Charter holding of the Conquerour as all the other Vassals did As to King Williams Homage to Henry the second it is Answered That William having been treacherously made Prisoner he was forced by a long and tedious Imprisonment to make this Homage and consequently the Homage it self was null being extorted by Force and made by a person who was not sui juris being in prison It being certain by the Laws of all Nations That Deeds done by Prisoners are null but especially in this case where the Deed was such as that it would have been null however For even the most absolute Kings are so far from being able to alienate their Kingdom or enslave it that by so doing as some say they forfeit their own Right and make the Throne void for the next Successour who is not obliged by what they have done And if any such Act as this were binding then England by the same Argument had remained a Feu of the Empyre since Richard the first their King did Homage to Henry the Emperour for England and King Iohn his brother did the like Homage to the Pope and offered to
petitionem Willielmi Regis Scotiae he grants a Liberty to the Monks of Aberbrothick to Transport their Goods through England free from Custome And Matth. Par. in many Treatises related by him gives them that Title And Pope Innocent the third in an express Rescript in the body of the Canon Law cap. 4. decret de immunit Eccles. writes Innocentius III. Illustri Regi Scotiae which behoved to be to King William who did reign in that Popes time Nor is this Argument from the Designation concluding since it is not convertible For even Feudatory Kings did and do assume their Designation from the Kingdom they hold as the Kings of Naples Sicily c. Which evinces that it follows not necessarly that the Kings of these Kingdoms are Feudatory Kings because they were designed Reges Scotorum and not Scotiae And in many places of his History Matth. Paris calls the Kings of England Reges Anglorum as in the whole Lives of King Iohn Henry the third It appears also by the former Transaction betwixt Edward the first and the Governours of Scotland that Margaret is even by the King of England constantly Designed Regina ac Domina Scotiae And I observe that in the Contract of Marriage betwixt Henry the VII for his Daughter Queen Margaret and Iames the IV. that sometimes the King of Scotland is called Rex Scotorum and sometimes Rex Scotiae in the same paper and the Commission granted by the King of Scotland for compleating that Marriage is called Commissio regis Scotiae pro matrimonio in all which Contract the King of Scotland is called Charissimus noster frater a Title never granted to a Feudatory King by his Superiour and the people of Scotland are there called Subditi Regis Scotiae whereas if the King of Scotland had been only a Feudatory Prince we had been Subjects to the King of England and not to the King of Scotland And there needs no other Argument against Heylen to prove that the Kings of Scotland were oft-times called reges Scotiae than the instance brought by himself of the Charter granted by King Edward the first to Peter Dodge wherein Baliol is confessed by himself to be called Roy de Escosse King of Scotland And this proves that the said Heylen layes down Grounds which are not only false but inconsistent But secondly though this were true yet it proves nothing seing the Goths and Picts were a free people and yet their Kings were called Reges Pictorum Gothorum which Phrase was ordinary amongst Conquering Nations such as the Scots were whose Princes having at first no fixed Kingdom did whilst their people were spreading themselves in Collonies rather assume a Title from the people than from their Country And seing Men are Vassals and not Land it will follow according to the terms used by Feudalists that seing our Kings were reges Scotorum that therefore the men were not Vassals and so they hold not their Land of the Crown of England nor were ejus subvassalli aut Valvassores The Argument urged from many Decisions in England finding that we were punishable as Traitors in England and that we were lookt upon as Subjects and not as Aliens by their Judges deserves no other Answer then that since their Kings by their power could not make us Vassals neither could their Parliaments or Judges treat us as such And if their Gown-men could have made us such they needed not have imployed Arms to have shed so much Blood in the quarrel Nor can such Domestick Testimonies prove in a case of so great importance And yet even the English Proceedings against those of our Nation shows that their own Judicatories and Lawyers consider us not as Vassals but as the Subjects of a free and independent Kingdom And amongst many other Instances I shall only remember that of Queen Mary against whom that Nation proceeded not as a Vassal but as a person who had made her self lyable to their Jurisdiction ratione loci delicti Which is very clear by Zouch de judicio inter gentes part 2. sect 6. whose very words I have here set down to prove not only this but that the Kings of Scotland were absoluti and equal to and independent from those of England being both pares absoluti principes His words are Erant boni rerum Estimatores qui asperius cum illa actum affirmabant eo quod fuerit Princips libera absoluta in quam solius Dei sit Imperium quod in majestatem peccare non posset cui subdita non fuerit quod par in parem non habeat potestatem unde judicium Imperatoris in Robertum Siciliae regem irritum pronounciatum est quia Imperio ejus non esset subditus Alii aliter censebant illam scilicet subditam esse etsi non originariam tamen temporariam Quia duo absoluti principes quoad authoritatem in uno Regno esse non possunt parem in parem habere potestatem quoties paris judicio se submiserit vel expresse verbis vel tacite contrahendo vel delinquendo intra paris scilicet jurisdictionem Papam sententiam Imperatoris in Robertum Siculùm rescidisse quod factum in territorio Imperiali non fuerit sed Papali Denique nullum magnum extare exemplum quod non aliquid ex iniquo habeat And in the Process against the Bishop of Ross as it is related both by the Forreign Lawyers and by Cambden it clearly appears that he was proceeded against not as a Subject of England but as a meer stranger who not being subject ratione originis became subject ratione delicti as they alleadged And the Learned Author of the late jus maritimum pag. 451. having spoken of the Jurisdiction of England over Ireland has these words But in Scotland it is otherwayes for that is a Kingdom absolute and not like Ireland which is a Crown annexed by Conquest but the other is by Union And though they be United under one Prince ad fidem yet their Laws are distinct so as they had never been United and therefore the Execution of the judgements in each other must be done upon Request and that according to the Law of Nations Nor need I answer the Argument brought from the procedure against the Heroick Wallace and others for these instances show rather an excessive resentment upon present Hostilities then the Justice of those who against the Law of Nations proceeded to murther such as were indeed prisoners of War fighting for their own Native King and Country And even the English of that age by entring into Truces Ransoming of Prisoners and doing all other things which are only allowable in a just War may convince all Mankind that in this and the like Instances they succumb'd to the bitterness of their present Passion I must here also crave Leave to assert That though Vassals are not to be treated as Aliens yet we find very frequently in History that whole Nations have been Naturalized and have
OBSERVATIONS Upon the LAWS and CUSTOMS OF NATIONS AS TO PRECEDENCY BY Sir GEORGE MACKENZIE of Rosehaugh His Majesty's Advocat in the Kingdom of SCOTLAND PETRON Hos gloria tulit Honores EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOMINI M. DC LXXX To the King May it please Your Sacred Majesty THis Book having for its subject Precedency should have for its Patron that KING from whom our Precedency flows as Rays do from the Sun And beside the nobleness of the Questions here discuss'd wherein Crowned-heads are oft-times the Clients and Honour the Prize These Discourses have the great Charms of newness and variety which do singly so delight this Age without any other advantage I know Sir that Dedications have degenerated into Panegyricks but why should I say any thing of You of whom the most of Your Subjects believe better things than the most eloquent of Your Advocats can express It being amongst the other wonders of Your life that You are the best lov'd though not the best obey'd King in Christendom the one being the effect of our Conviction and the other of Your admired Clemency And yet I might be allowed to say as much of Your Majesties merit as some others of Your Subjects having in those many occasions I had of attending You upon our publick Concerns been oftentimes both pleas'd and asham'd to find You understand my Trade that great Art of Reasoning far better than my self discovering to me the weakness of some of my Reasons and improving others But what I admir'd more was for I admire Iustice more than Wit to find Your Majesty alwayes more concern'd for Your Peoples Security than for Your own Prerogative So that if any Kingdom be happier than we it is because they understand better their own Interest and not because they have a better King Leaving then Sir this beaten path I hope all wise and just men may expect that none who owe You and Your Predecessors the Interest they have in Your Kingdoms and Parliaments because of the Titles You have bestowed upon them will be so ungrate and imprudent as to oppose You to please a Re-publican Party who would turn them out of all that Interest they have now in the Government and punish them most remarkably by levelling them with the Populace which some adore There is not a Nobleman in these Nations who has not been raised by the Royal Bounty all Preferments of the Army or long Robe being the reflex of Your Favour upon their merit and without which their greatest Parts had been at best but excellent Colours lodg'd in the dark And therefore when they get Precedency Preferments Matches or Respect for being Noblemen they ought to consider to whom they owe all this and to remember how little they signified when a Common-wealth prevailed And if any of their Creatures us'd them as some have done the Monarchy we should hear that Eloquence which is now us'd to decry the Government and Your Ministers employed in railing against the ingratitude of those their Creatures Nor is it to be feared that the Nobility and Gentry who value themselves so much upon the just descent of their Blood will bear patiently that the Royal Line should be cut or the Succession diverted from its just and royal Channel since Your descent Great Sir has the advantage over not only all Subjects but likewise over all Monarchs that we know when their Predecessors rose from among the Vulgar whereas the first thing History discovers of Yours is that they were Kings God having wrapt up Your Origin in this wonderful mysteriousness as it were to teach Your Subjects that You hold Your Imperial Crown of Him alone and immediatly and in shewing them how to reverence You has oblieged You to depend upon His Divine Majesty the only and immediat Author as well as Support of Your Power and Greatness and who has heap'd upon You so great and so remarkable mercies as may in letting Your enemies see his just indignation against them let you also see what sincere and exemplary Piety He as Your kind and omnipotent Master expects from You. I know Sir that You will allow me to own that I hate Slavery and love Property as well as any of our high pretenders But I think our Freedom and Property securer under Your Majesty whose Right cannot be shaken without the ruine of ours it being Your great interest to maintain that Law which makes so many thousands obey You in spight of their ambition and avarice And I still see that the true Proprietar is the kindest Master whereas on the other hand it is certain that they who oppose most the Government are those who did themselves cruelly oppress us under the late Vsurpers or their impenitent Children Those who being picqu'd at want or loss of Preferment are acted by revenge and malice or these who are so easily fool'd as to believe those who are such and who inveigh against Your just Power that they themselves may thereby become arbitrary many of whom are themselves greater grievances than any they exclaim against and greater judgements than any they threaten So that all we can expect is to empty our Veins and Purses for the liberty of being sold or trampled upon as formerly by such as have neither so great interest in us nor affection for us whilst You Sir generously pity what You may chastise and suffer our extravagancies to grow up to be their own punishment None of us can say that we or our predecessors have for six hundred years felt the tyrannie of any of our Kings nor can any of us deny that all our Miseries and Civil Wars have sprung from the ambition and factiousness of Subjects who design'd indeed to govern them and us which should in reason make us rather jealous of our own factiousness than of our Monarchie And therefore Sir That God may alwayes teach Your Subjects to be just to Your Merit and to remember the last Age and may make Your Ministers careful to maintain but not to stretch Your Prerogative shall be the constant and ardent Prayer of May it please Your Sacred Majesty Your Majesties most Faithfull most Humble and most Loyal Subject and Servant GEORGE MACKENZIE THE CONTENTS CHAP. I. THE Precedency of Kings and Common-wealths CHAP. II. Of the Precedency due to the Kings of Scotland CHAP. III. That the Crown of Scotland was not subject to England CHAP. IV. The debates betwixt the Kings of Pole Sweden Denmark c. and other Princes CHAP. V. The Precedencies amongst Common-wealths CHAP. VI. Of the Precedency of the Electors and the Princes of the Empyre CHAP. VII Of the Precedency of Church-men CHAP. VIII General Observations concerning the Precedency of Subjects CHAP. IX The Precedency due to Women Fourty four considerable Questions concerning Precedency Resolved Viz. Question 1. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be considered or what
by Leo the 3. of greater Authority amongst such as acknowledge the Pope to be no infallible Judge And whatever may be debated against other Kingdoms which were once Subject to the Roman Empyre Yet his Plea against Scotland is very ill founded since in the opinion of Scalliger and the best of Historians Scotland nor its Kings were never subject to the Roman Empyre nor conquered by them for they to defend themselves against the Scots were forced to build a Wall called Vallum Adriani which is Extant to this day as an undenyable Proof that Scotland did set Limits to the Roman Empyre And thus as Scalliger observes Romani Imperii fuit olim Scotia limes It is likewise pretended by the German Lawyers that the Emperour ought to precede all others because he is crowned with three Crowns one of Iron at Aquisgrane one of Silver at Milan and one of Gold at St. Peters Church Gloss. ad Clement 1. And since the King of the Romans who is but Emperour in hope debates with other Kings as in anno 1533. he who is actual Emperour ought to be preferred to them For the Emperour it is also pretended That in the Ottomon Court and in all other Courts the Emperours Ambassadors are still preferred and that he only is still styled your Majesty in all Adresses made to him by all other Kings as by France anno 1628. by Pole anno 1621. c. And that the Kings of Pole Sweden Denmark and others have taken Confirmations from him ab eo petierunt veniam aetatis Hering de fidejus c. 2. And yet the Kings of Britain and France may debate the precedency with him because the Empyre is but Elective whereas they are Hereditary the Empyre is a Limited but they have Absolute Monarchies vide Peregrin de jur fise tit 1. num 47. The French King debates his precedency with the King of Spain the Spaniard contending that he ought to be preferred because he is the most Catholick King and King of maniest Kingdoms and some of them are so foolish as to say That the Spainish Nation is more ancient than the French as owing their Origin to Athamaricus one of the first Governours amongst the Goths But for the French it is answered 1. That they are the most Christian Kings 2. That they are Consecrated and Anoynted 3. That Swardus was first King of that Nation in the Reign of Alexander the Great 4. That they were preferred in many General Councils to the Spaniards as in the Lateran Council anno 1215. in the Council of Constans anno 1416. and in the Council of Basil anno 1433. That the Venetians preferred the French after much Debate anno 1558. the Case being submitted by both to that Senate and Pius the IV. preferred him at Rome anno 1564. the King of Spain having appealed from the Venetian to him And though the Emperour has of late decided in favours of Spain yet that Decision is little considered because of the Relation which the Emperour has to the Spainish Crown And therefore the French King does very wisely send only Envoys and Residents to the Imperial Court lest if he sent Ambassadours the Spainiards might be preferred to his Nor was this Precedency ever acclaimed by the Spaniard till the Reign of Charles the V. who being both Emperour and King of Spain did begin this Debate which after many Contests the Spainiard has at last ceded having commanded his Ambassadour the Marquess de la Fuente to acknowledge the same to the most Christian King in Satisfaction of the Injury done to his Ambassadour in anno 1661. at London The King of Great Britain founds his Precedency to both upon 1. His being King of that Isle which was first Christian. 2. Upon his being Anointed and one of the quatuor Vncti which were before all other Kings 3. That having conquered France in the time of Henry the V. he has Right to all the Precedency which France can acclaim And to Spain the King of England was preferred in the General Councils of Pisa Constans and Basil. I find likewise in Golstad lib. 1. cap. 30. That Pope Iulius the II. decided after debate in favours of Henry the II. King of England against Ferdinand the V. Caspar Eup. thesaur polit part 3. apot 63. And therefore in the Book of Roman Ceremonies 1504. England was placed before Castil nor can it be denyed but that Charles the V. in ranking the Knights of the Golden Fleece did give the right hand to the King of England and the left to the King of Spain And though of late the Court of Rome has decided in favours of Spain yet that proceeds from the dislike that Rome had to England for its Separation and the great Esteem which dayly grows there for Spain because Spain has never indulged any who have left the Romish Church CHAP. II. Of the Precedency due to the Kings of SCOTLAND I Must here crave Leave to say That the King of Great Britain may justly claim the Precedency from all those Kings as he is properly King of Scotland For it is an uncontroverted Ground in Law That amongst those of equal Dignity he who first attained to that Dignity is to be preferred L. 1. C. de Consul Quis enim prior esse debet in eodem genere Dignitatis nisi qui prior eum adeptus est L. 1. ff de albo scribendo With which agrees the Canon Law Cap. 1. de major ob And this is declared the uncontraverted Test of Precedency by Crus de jur preced pag. 66. Menoch concil 51. Cuj ad L. 2. C. de Consul And we see that this Rule holds in all other Dignities without respect to Riches or multitude of Possessions And thus amongst Dukes or Earles in all Nations the first who attained to the Dignity is still preferred though others be much richer and have suceeded to moe Earldoms This being then the true and solid Ground of Preference I may truly subsume That the King of Scotland being equall in Dignity with the Kings of England France and Spain attained to that Dignity before either of these For our King Fergus came into Scotland 330. years before the birth of CHRIST Whereas Polydor an English Historian confesses that Egbert the first King of England did begin his Reign eight hundred years after our Saviours birth and the King of Scotland marryed the daughter of Ambrosius Aurelius who was the first King of the Britans and whose Reign preceeded the Origin of the English Kingdom As to the Monarchy of Spain and their Race of Kings they are no older than Rudolphus King of the Romans elected in the year 1273. by whom the house of Austria did rise to this Dignity As to the Kings of France who now Reign they are only descended from Hugh Capet who usurped that Throne in anno 987. And not being descended of either the Carolovingian or Merovingian Races they cannot compet with our Kings Achaius King of Scotland
having been contemporary with Charles le maigne the first of the Carolovingian Race and yet Achaius was but the 65. of our Kings and the Leagues betwixt Achaius and the said Charles are asserted not only by our Historians and the French but confessed by all Strangers To evite this Argument some Historians have of late asserted that we had no Kings before Fergus the II. and Cambden observes that the Scots were unknown till the dayes of Constantine the great which is a most unjust and groundless Calumnie since four Monastries of our Nation viz. Melrose Pluscarden Paisley and Scoon did keep constant and distinct Annals of all that past in this Nation after the Establishment of the Christian Religion which was in anno 199. and have transmitted to us what was delivered to them by the pious and remarkable Christians of those first Ages of the World who as they were eye-witnesses of what past since our Christianity so are not to be presumed to have recorded any thing of what preceeded their own age without sufficient Warrand And as it is incredible that so Sincere and Pious men would have lyed so it is not imaginable that so many Societies would have conspyred together in a whole Tract of so circumstantiat a History as ours is and there can be nothing brought to convell the Faith of so large a History but what may with the same force be urged against the whole Roman History few or none having related what is said in the Roman History besides the Romans themselves Whereas Galdus or as Tacitus names him Galgacus opposed Agricola under Domitian and that he was a Scot is clear by Lipsius Notes upon that Place Egregium membrum qualta multa in corpore hujus Orationis Galgaci Scoti But the Text makes this most clear to me for this Discourse is said to have been made ad montem Grampium which is known to be a Scottish Tract of Hills dividing the North and South of Scotland Hegesippus who lived in the dayes of Hadrian the Emperour and so an hundred and ten years before Constantine does write of the Scots as a warlike People to whose Authority Cambden can make no answer but that he contraverts the Authority of the Translation or Impression by which answer all Antiquity may be confounded and seing that Translation was the work of St. Ambrose it cannot but be above all censure Claudian does make the Scots to have Reigned in the dayes of Honorius for in his second Consulat he has Scotumque vago mucrone sequutus â—regit Hiperboreas remis audacibus undas And in another place he sayes Scotorum cumulos flevit glacialis Iernae And William of Westminster confesses That we came into Britain in the 77. year after CHRIST Beda likewise another English man makes us to have been in this Isle before the dayes of Iulius Caesar. And as it cannot be denyed that we were still subject to Monarchy so no Historian can pretend that we obeyed any Race save that which now Reigns Whereas we can condescend where the English and French were conquered by Strangers and had their Royal Line dethroned and inverted Another Ground of Precedency may be adduced for the King of Scotland from his being the undoubted Lineal Sucessour of 110. kings whereas the Lyne of France runs no higher than Hugh Capet who lived in anno 987. and did in that time dethrone the former Race The kings of Spain are only descended from the Counts of Tierstiem And the present kings of England are descended from William the Conquerour So that whatever may be pretended for the Antiquity of those kingdoms yet their kings are not so ancient as ours and Precedency ought to be given amongst Equals to the Eldest Race and not to the eldest Kingdom In such Dignities the preference must be given either according to the Antiquity of the People or Countrey or Race which Reigns there If the Countrey be considered there can be no Precedency acclaimed by any for as all countreys were created at the same time so none can know which of these kingdoms were first inhabited and that none can be preferred upon the Antiquity or Riches of their countrey is clearly determined by Lawyers Regionis Locique cui Principes praesunt ratio sic de eorum locorum praestantia veterum elogia necquicquam ad praecedentiam faciunt Gothofred de praeced cap. 3. num 30. If we consider the Antiquity of the People who are commanded though that could give Precedency to them or to any who represented them yet that ought not to give precedency to the king for principum precedentia metienda est ex sua dignitate non extra And the Learned Speronius Speronii hath proved this in a large Discourse written in the Italian Tongue but if this be considered as a ground of precedency then we ought to be preferred to the English for we are still the same People and Nation but the English are not the old Britans but are a mixture descending from Danes Saxons and French And so we being the Eldest People our King ought to have the precedency upon that account Even as our king was preferred to the late kings of Ierusalem though they commanded the people who now live in Iudea and who came in place of the ancient Iews a kingdom very ancient formerly But the Antiquity of the Race that Reigns is the ground of precedency For this reason it is that the elder brother succeeds without respect to the Greatness of Estate or Antiquity of those whom he commands And though these considerations give preference inter impares dignitate yet inter pares dignitate familia quae prior dignitatent est adepta semper praeferenda in incedendo sedendo c. Menoch consil 902. num 57. Rebuff ad l. 1. c. de consul Platea ad l. 2. c. ut dignit ordo And since it shall be proved even from Forreign Histories cited in this Chapter that we had Kings before any of the Races now Reigning in either of these our Kings ought to be preferred to them Since Christianity was established Christian Princes have been preferred according to the date of their having received the Christian Faith Gothofred de jur praeced cap. 3. num 23. Grotius de jur bel lib. 2. cap. 5. and that is the chief Ground of Precedency observed in the Court of Rome and especially in general Councils but I conceive it ought not to be a Ground of Precedency any where else since amongst Equals the Antiquity of Blood ought to be preferred to the date of Christianity Christianity rather discharging all Care for Precedency But even according to this Rule the eldest Christian Race ought to be preferred Religion having still Respect to Christian parents whereas on the other hand it is of no advantage to any person that he succeeds to an Estate which was formerly possest by Christians these having no Connection with one another and a man should by the same Rule be
preferred because he dwells in a house where Christianity was first professed which were in it self very ridiculous And if the first Christian Race be allowed the Preference the King of Scotland ought to be preferred for Donald King of Scots imbraced the Christian Faith in anno 199. before either William the Conquerour succeded to England or Hugh Capet to France and long before Spain obeyed this Race of Monarchs for which we can cite not only our own Historians but Baronius ad annum 449. Duchesne and many others and particularly Beda and Polidor the worthiest of English Historians Beda relates That imbuebantur a Scotis parvuli Anglorum quin ipse Alsridus Anglorum Rex in Insulis Scotorum operam dedit sacras Literas didicit lib. 3. hist. c. 27. Reges Angliae cupidi salutis aeternae Legatos ad Eugenium quartum Scotorum Regem miserunt ut ille digneretur Viros idoneos mittere per quos illi Christianae Fidei Rudimenta docerentur sacro Baptismatis fonte abluerentur quod ille haud gravate indulsit Which clears fully that our Kings were Christian before those of England and so ought to be preferred to the Kings of England by their own Arguments and their own Authors King Donalds Conversion is attested by Bellar. in his Answer to King Iames by Barronius ad annum 429. Sanderus lib. 4. de clav David Arnoldus de conversione Gentium c. And since King Donald was before Fergus the second it appears clearly even from Forreign Histories that we had Kings before Fergus the II. I cannot deny but that in the Council of Constans England and France were preferred to Scotland but that proceeded as Gothofred observes from the partiality of the Church of Rome which alwayes preferred those who were able to do them most Service but if we consider the Principles of the Christian Religion according to these that Race ought to be preferred whose Title is justest and I am sure that according to this Rule Scotland ought to be preferred for its Kings have not Usurped over the People which they Governed And not only does Religion consider this ground of Preference as suteable to Devotion but the Law considereth it as suteable to Justice And Lawyers have therefore thought a Succession of Kings enjoying a just Title free from Violence and Tyrrany one of the chief Grounds of Preference and Precedency And thus Vasquez in praefat ad illustres questiones sayes That multum ad nobilitatem praelationem confert ex veris legittimis Regibus non a Tyrannis descendisse Nor does the Custome either of Courts or Councils invert the Precedency which is founded upon Antiquity and the right of Blood from which Consuetude cannot derogat in the matter of Precedency since that Consuetude is only respected in Law quae in se rationabilis juri nec naturae nec gentium contrariatur And likewayes since this matter of Precedency is setled by Lawyers upon these solid Foundations for securing the publick Peace and Interest of mankind it were unjust that the same should be so easily overthrown by the Partiality of Interested Church-men or the Pride and Power of other Competing and Rival Princes and therefore to secure the Rights of Justice and Blood against all such Invasions Lawyers have unanimously concluded that Consuetudine induci non potest ut prior in dignitate praeferatur posteriori Crus de praeemi cap. 12. Which Principle they so farr assert as to conclude that this could not be conceded even by express Paction Rumellin dissert 1. thes 18. even though that Paction were confirmed by an Oath Rippa ad l. 3. ff de donat And albeit it may seem that every man may renounce that which is introduced in his own favours yet to this it is answered That men cannot renounce what is introduced in their own favours when that which they renounce was not principally introduced in their favours but arose to them necessarily by the Laws of Nature and Nations or was introduced principally in favours of the common interest of Mankind rather than of them and in which third parties would likewise be concerned All which is clear not only by the principles of Reason but by L. 3. ff de pactis and it cannot be denyed but that the Precedency from the Antiquity of blood is no such private Right as may be renounced it being a priviledge not given by Law but arising from nature Lex non data sed nata and introduced for regulating the common Interests of mankind and preventing their differences or oppressions whereas how unfortunate or irregular should men be if subjects might force their Magistrates or younger brothers the Elder or stronger Princes the weaker to Renounce by Paction or might serue from them by Custom and Inadvertance the Seniority and Precedency due to them whereas now the impossibility of prevailing in such Designes takes happily away all lusting after them and whatever may be ascribed to Consuetude or Decisions in that Precedency which because it sprung meerly from Custome may be regulated by it or in dubious Cases where a grain weight may cast a ballance yet I see no Law nor Reason that can be adduced for taking away by Decisions Negligence or Consuetude a clear right of Precedency founded upon the Antiquity of Blood Especially since all who writ upon precedency are clear That no man can prejudge his Successors as to the precedency due to them by blood Licet positus in dignitate suo ipsius facto possit sibi prejudicium afferre non tamen praejudicare potest quoad successores suos Dec. consil 21. num 74. vid. Gothofred de praeced pag. 55. Rub. decis 298. qui tradit ea quae a genere natura tribuuntur non obstante facto majorum manent incolumia Which Rule should rather hold in Kings than in any else because they are but Administrators But in this case there is no Decision against our Kings nor have they ever consented to any such preference And therefore whatever may be said for others against them in a possessory Judgement the matter of Right is still intire Vasquez the illustrious Spainish Lawyer did at the Council of Trent adduce several Arguments for the precedency of the king of Spain which if they were well founded would I confess inferr a Precedency to England and France and which I shall the willinglier adduce and answer that I have heard them urged for France and Spain against the King of Britain and because they are the generall topicks and common places which are necessary to be known and understood for clearing not only the Precedency of Princes but even of the Nobility and Gentry The first is That these who are most powerfull and greatest ought still to be preferred c. statuimus de major obed and he must be accounted most powerful who is most powerfull the time of the debate Nam qualitas adjecta verbo debet intelligi secundum tempus verbi l.
in dilectis § si extraneas ff de noxalibus The second is That those who command the noblest and best Subjects are accounted the noblest and best Authent de defensoribus civitatum § nos igitur 3. Riches are the rise and occasion of Dignity and therefore are the chief grounds of precedency amongst Equals 4. He is to be preferred in Dignity whom generally men esteem the greatest 5. Since Honour is the Reward of pains and dangers those who take most pains and are lyable to most dangers for Christendom and the Christian Faith ought to have the precedency in Christendom and amongst Christian Princes And that pains and dangers are grounds of predency is urged from l. semper § negotiatores ff de jur immunitat 6. As all Goodness is the Nobler the more communicative it be so these must be concluded the Noblest by whom most people have advantage and therefore these Kings under whom Trades flourish most and who bestow Sallaries upon and give a livelyhood to most men ought by Mankind to be preferred To a'l which Arguments it is answered that if preference were to be given by choice and did not descend from the Right of Blood and Antiquity then the former Arguments were indeed considerable and ought to direct the Electors but where the Antiquity of Blood can be instructed it still gives precedency as is clear from the Authors above cited And thus though we do confess that the Kingdoms of France and Spain and particularly the kingdom of England are Richer Greater and more Considerable upon these Accounts than Scotland is yet since the Race of our Kings is more Ancient than either of theirs I conclude That therefore they ought to be preferred CHAP. III. That the CROWN of Scotland was not subject to England SOme English Historians Lawyers and Heralds do too frequently abuse the World with a most Groundless Tradition by which they contend That the Kings of Scotland were Vassals to the Kings of England and did them Homage for the Crown of Scotland Which if it were true would have taken from the Kings of Scotland not only the Precedency for which I have been debating but would have placed them after the Kings of Castile and many others to whom they were preferred And therefore not only to remove this Objection but to free my Country from this most unjust Imputation I am Resolved with very much Respect to the English Nation whose Wit Courage and Learning I very much esteem to inform the Curious how unjust this pretence is and to which I have been not only inclined but forced upon the Reading of a Rapsodie printed lately by Mr. Prin in Vindication as he speaks pag. 487. of the Dominion of the English Kings against the Vngrate Perfidious and Rebellious Kings of Scotland In which none of the Learned or Discreet English are concerned since I find none who deserve that praise engaged in this Debate which has been agitated only by such of that excellent Nation as have had more Humor than Discretion I deny not but that the Kings of Scotland did hold the Lands of Northumberland Cumberland and Westmerland in capite of the Crown of England and that they did them Homage for it which was not Dishonourable to Scotland that being most ordinary amongst Soveraigne Princes For thus Henry King of England and severall others of their kings did Homage to Philip and other kings of France for the Provinces possest by them in France and the king of Spain does at this day Homage yearly to the Pope for Naples and Sicily And yet the Homage done for these Countrys has been the occasion of an ignorant Mistake in some and a malicious pretext for others to misrepresent the Homage done for these Counties as done for the Kingdom of Scotland And the Occasion of getting these Provinces from England is too Honourable to be denyed by us it being most undenyable That the Scots being called in to assist first the Britans against the Romans and thereafter the Saxons against the Danes they had these provinces bestowed upon them as a Reward of what they had done and an Encouragement to them to continue their Friendship for the future And by a Statute made by St. Edward and ratified by William the Conquerour as Holinshed observes the Scots were for that Service likewise Naturalized English for which Naturalization that Statute gives two Reasons one quia omnes ferme Scoti Proceres ex Anglis conjuges coeperunt ipsi rursus ex Scotis and the other was quia simul in unum contra Danos Norvegos atrocissime pugnaverunt But that the kings of Scotland did hold the Crown of Scotland as Vassals of England or did Homage to the kings of England therefore will appear to be most false from the following Arguments which must not be tryed by the Law of England but by the Civil and Feudal Laws which are now become the Laws of Nations and are reverenc'd as the sole Judges in all Differences betwixt Nation and Nation and which must be presumed equal to both Nations since made by neither 1. All Lands are presumed to be free from Servitude except the Servitude be clearly instructed but much more are all kingdoms presumed to be free since ex natura rei kings and kingdoms are independent qualitas quae inesse debet inesse presumitur and by how much the presumptions are strong by so much ought the probation which elids them be the stronger And albeit all Domestick proof ought to be rejected in all cases as suspect and partial yet the English can adduce nothing for obtruding this Servitude upon us save the Testimonies of their own Historians Lawyers and Heralds 2. The Natural and Legal way of proving any man to be a Vassal is by production of the Feudal Contract betwixt the Superiour and Vassal all Feus requiring necessarily writ in their Constitution Nor can Vassalage be legally prov'd otherwise whereas here the English can produce no formal nor original Constitution of this Fue such as is to be seen betwixt the Pope and the King of Spain the Emperour and the Princes of the Empyre c. For all they can adduce is only posteriour acknowledgements of this Vassalage via facti which is but a begging of the question and these being but Accessories and Consequential Inferences cannot subsist except the original Constitution be first proved no more then the payment of Feu Duties to a Superiour either by Force Ignorance or Mistake could prove the Payer to be Vassal for the future except the originall Feu were produced And as this is necessary in Law so it cannot be imagined in Reason but that some Obligation in Writ or Feudal Contract would have been taken by the English who were a very wise people and consulted very prudently their own Securities in every thing else And if this Contract had been once entred into it had been yet extant since the English cannot alleadge that ever they lost any of
hold England in capite of Murmelius a Sarazen King Edgar's being rowed over the Dee by Kenneth king of Scotland is taken off by the former Answer though it were true as it is not nor can it be made appear by a Chronological Computation if the Enquiry were worth our pains The great Instance founded upon the Homage made by the Baliol is as weak since it is known that King Robert the Bruce refused to do Homage to King Edward choosing rather to want a Crown then to be a Vassal for it But Iohn Baliol the other Competitor preferring his Ambition to his Native Country was therefore justly disowned by the Nobility who as Duchesne a Stranger to us observes sent Ambassadours to King Edward to show him that they did Revoke and Disown the Homage made by the Baliol and asserted their primitive Liberty And so hateful an Act was this esteemed in him that he losed the Crown by it whereas had this pretence of England been founded upon any Justice it could never have been so severly either opposed or punished But though Baliol had been a lawful King as he was not King Robert the Bruce's Title being preferable in Law yet could not the Baliol have subjected the Kingdom in Vassalage to England since by the Feudal Law a Superiour cannot superinduce or interpose another Superiour nec sine Vassalli consensu alienare jus suum directum c. 1. § ex eodem descendit de Leg. Lotharii And though some debate that by such Alienations of the Superiority the Superiour forfeits his Right yet all agree that the Alienation is null nulla irrita D. D. in cap. imperialem § praeterea de prohibit alien per Fredric Curt. p. 16. num 3. latissime Rosenth cap. 9. conclus 62. Whereas it is pretended That the Parliament of Scotland consented It is Answered That any Parliamentary Consent is altogether denyed For though we have exact Records of all our Parliaments yet there is not so much as Mention made amongst all our Statutes or Books of any Parliament held by Iohn Baliol. And albeit Prin has published all the Records which the English have upon this Subject yet he dares not so much as assert much less produce the Copy of any such Act of Parliament And certainly if there had been such an Act of Parliament not only the Records of that Parliament but that particular Act had been carefully preserved and published and that this Parliament and Statute is a meer Fiction appears not only by our own but Forreigne Historians And it is not imaginable that the greater part of the Nobility and Kingdom having immediatly disowned the Baliol for acknowledging this Subjection that they would themselves have ratified it in a free Parliament But though this were true as it is not yet there is not any Kingdom so Loyal Happy or Invincible but some few Cowards or Rogues may be found in it who may assume the name of a Parliament and disown the true Interest of the Kingdom without any Warrand from the People for that effect And I would very willingly know if England remains still Vassal to the Pope because a Monk prevailed with King Iohn to hold his Crown of him or if Portugal should not be acknowledged a free Crown because Spain did once elicite from them a National Consent by Force of Arms Or if these three or four pretended English Parliaments who acknowledged Oliver Cromwel the Usurper did settle a Legal Right upon him by their Concourse Nor did Prescription Supply here the Original illegality of that Consent for the Scots did immediatly reclame and did within much fewer years than Prescription requires restore themselves to their Liberty under the Conduct of that Glorious Prince King Robert the Bruce for whom GOD did so Miraculous things as did Convince the World how much the LORD of Hosts detasted the Bribry and Cruelty of King Edward the first Et ita res facile redeunt ad suam naturam quae mox rediit divertisse non videtur But to show how great Aversion even that Generation had for any such Submission to the English Monarchy I have set down the Copy of a Letter yet extant under all the Seals of our Nobility directed to Pope Iohn in anno 1320. Wherein they Declare that if their King should offer to submit to England they would disown him and chuse another Not that the power of Electing Kings was ever thought to Reside in our Nobility But because it was represented to them as the Opinion of all Lawyers that a King could not alienat his Kingdom or submit himself by his sole Consent to a Forreigne Prince Since by that Alienation and Submission he does Forfeit his Right to the Crown As to which Letter likewise I think fit to observe to prevent any Mistake as to the Calculation of the number of our Kings that the Writers thereof have as is usual with us numbred amongst our Kings such of the Royal Family as were for the time Regents or Viceroys The Letter follows SAnctissimo Patri in CHRISTO ac Domino Domino Ioanni Divina Providentia Sacrosanctae Romanae Vniversalis Ecclesiae summo Pontifici Filii sui humiles devoti Duncanus Comes de Fyfe Thomas Ranulphi Comes Moraviae Dominus Manniae Vallis Anandiae Patricius de Dumbar Comes Marchiae Malisius Comes de Strathern Malcolmus Comes de Levenox Willielmus Comes de Ross Magnus Comes Cathaniae Orcadiae Willielmus Comes Sutherlandiae Walterus Senescallus Scotiae Willielmus de Soules Buttelarius Scotiae Iacobus dominus de Dowglas Rogerus de Moubray David dominus de Brechine David de Grahame Ingelramus de Vmsravile Ioannes de Meneteith Custos Comitatus de Meneteith Alexander Frazer Gilbertus de Haia Constabularius Scotiae Robertus de Keith Mariscallus Scotiae Henricus de Sanctoclaro Ioannes de Grahame David de Lindesey Willielmus Olifant Patricius de Grahame Ioannes de Fenton Willielmus de Abernethie David de Weyms Willielmus de Monte fixo Fergusius de Ardrosan Eustachius de Maxwell Willielmus de Ramsay Willielmus de Monte alto Alanus de Moravia Douenaldus Campbell Ioannes Camburn Reginaldus le Chen Alexander de Seton Andreas de Lescelyne Alexander de Straton caeterique Barones Libere-tenentes ac tota Communitas Regni Scotiae omnimodam Reverentiam filiolem cum devotis pedum osculis beatorum Scimus sanctissime Pater Domine ex antiquorum Gestis Libris colligimus quod inter caeteras Nationes egregias nostra sciz Scotorum Natio multis Praeconiis fuerit insignita Quae de majori Scythia per mare Tirenum Columnas Herculis transiens in Hispania inter ferocissimos per multa temporum Curricula residens a nullis quantumcunque Barbaricis poterat alicubi subjugari Indeque veniens post mille ducentos annos a transitu populi Israelitici sibi sedes in Occidente quas nunc obtinent expulsis Britonibus Pictis omnino deletis
V. The Precedencies amongst Common-Wealths IT cannot be denyed but that Kings and Crowned-heads have the Precedency from Common-wealths though they contend that they being the Freest of all men are the Noblest And being in Effect a Countrey of Kings ought to be preferred to any one King Especially since their Government is elder then that of Kings men having drawn themselves into Societies before they either submitted to Kings who assum'd that Government by Force or Elected Kings because they could not agree amongst themselves There are some Common-wealths who claim precedency as having right to Kingdoms And thus Venice claim'd the same precedency with Crown'd-heads in the Popedom of Vrban the eight and Innocent the fifth because they had right to the Kingdom of Corsica But this was denyed Genoa contended with Venice for precedency at the Coronation of the King of Cyprus 1373. but that King preferred Venice And to extinguish these Differences amongst the Common-wealths of Italy Venice is by opinion of all Lawyers preferred to all the Common-wealths of Italy Calefat de Equestr dignit n. 124. Crus de preced pag. 536. Genoa and Sienna did also contend anno 1530. at the Coronation of Charles the fifth but the Debate was then decided And yet Crus pag. 545. prefers Genoa The States General contend with Venice and all other Common-wealths as being the more powerful and being a Society of Common-wealths They pretend also to Precedency from all the Princes of the Empire as being more Independent then they and being equal to Kings Whereas these Princes are but Subjects which is delicately Debated by Besold de praeced cap. 2. But yet the present Emperour has preferred the Electors to all Ambassadours of Common-wealths by an express Ordinance related in Crus p. 545. And now Holland as having a kindness for the Empire Treats the Ambassadours of the Electors as those sent by Crowned-heads And in return of that Kindness the Electors Treat such as are sent from Holland with the same Respect Memor Ambassad pag. 523. Of old the Duke of Savoy did preceed the Common-wealth of Venice But Emanuel Philbert Duke of Savoy during the Oppression he lay under from Charles the fifth put himself under the protection of Venice and became a Son of St. Mark And thereafter as the Father behov'd to preceed the Son the Dukes of Savoy yeelded to Venice And as that Duke pretends Right to the Crown of Cyprus by the Marriage of Anne of Cyprus and the Donation of Charlot of Cyprus So Venice pretends Right to the same Crown by the Donation of Catharine Cornara Widow to Iames King of Cyprus The Difference is now thus settled That Venice shall Treat the Ambassadours of Savoy as they do these of Kings with the title of Excellency And Savoy shall allow Venice the Precedency Memor Ambassad pag. 347. Mazarin treated the Ambassadours of the Common-wealth of England as those sent from Kings Mem. Ambassad pag. 334. The Cantons of Swisse were even of late a part of the Empire But by the Treaty betwixt the Empire and the King of Swed 1648. they are declared Free States Et in possessione seu quasi possessione libertatis exemptionis ab Imperio And now their Ambassadours or Envoys take place after the Venetian and States General And albeit Nolden de Stat. Nobil Thinks that if they were called to fit with the States of the Empire upon any extraordinar Occasion they were not to be preferred to the Princes of the Empire and much less to the Electors For licet jura Principum habent passive materialiter Principes tamen non sunt formaliter active Yet other Lawyers prefer them to all the other States and Princes of the Empire except the Electors Crus pag. 556. The French King treats them with the title of Magnifiques Seigneurs And though their Deputies could not prevail with the French King in anno 1602. and 1603. to be covered when he received them Yet I conceive that now they will be received as the Ambassadours of Holland or Venice who are covered at their Reception since in anno 1646. they are acknowledged to be a Free State The Grison Ambassadours were received in anno 1627. as the Ministers sent by the Princes of the Empire and with the same Honours CHAP VI. Of the Precedency of the Electors and the Princes of the Empire AMongst the Princes of the Empire the Electors are still preferred Which Electoral Colledge though said to be Founded by the Emperour Otho the third and Pope Gregory the fifth anno 997 yet it is more probable that the said Constitution arose from the great Difficulties under which the Empyre was Sunk after the Death of Frederick the second Amongst the Electors the Ecclesiasticks are preferred to the Laicks The Ecclesiastick Electors are the Arch-bishops of Mentz Cullen and Treves whose Precedency amongst themselves was first Determined by Charles the fourth So as that the Bishop of Treves was to sit just over against the Emperour The Bishop of Mentz was to take place in all his own Dyocie and in all Germany Whereas the Arch-bishop of Cullen was to take place in all his own Dyocie and in Italy and France And of old in the Election of the Emperour the Bishop of Mentz was preferred as Arch-chancellor of Germany The Arch-bishop of Treves as Arch-Chancellour of France And the Arch-bishop of Cullen as Arch-chancellour of Italy Which Order was confirmed by Frederick the 1. anno 1158. The Secular Electors are Ranked thus by the Golden-bull of Charles the fourth The Duke of Saxony carries the Sword immediately in all Processions before the Emperour The Count-Palatin the Imperial Aple walking on the Emperours Right hand The Marquess of Brandenburg the Scepter on the Left hand And the King of Bohemia was to follow him immediately But when they sit at any Solemnity by the same Bull The King of Bohemia being a Crowned-head was to sit first upon the Emperours Right hand after the King of the Romans and the Arch-bishops of Mentz and Cullen And upon the Left after the Ecclesiastick Electors the Duke of Saxony had the first place and the Marquess of Brandenburg the second But yet I find Beutherus and other German Lawyers contend from old Manuscripts That at first Brandenburg had the Precedency from the Electors Palatin and Saxony The Duke of Bavaria did of old Contend with the Duke of Saxony in anno 1521. and their Debates continued by protestations for many years And with the Elector Palatin till the Emperour Lewis the fourth Ordained the Palatin and Bavaria to preceed one another alternately Though since the late Waries of Germany the Elector Palatin having Usurped the Crown of Bohemia the Duke of Bavaria was made the first Elector in his place the Elector Palatin being now the last of the Electors It is also observable That if any of the Electors themselves be present they are preferred to the Ambassadours and Representatives of all the absent Electors as was Decided in anno
1654. Excepting onely the Ambassadours of Austria and the Ambassadours of Forreign Kings were still allowed to take place from all the Electors except the King of Bohemia in all the Solemnities of the Empire But the Ambassadours of Common-wealths having claimed the same precedency The Emperour Leopold has Decerned against them in favours of the Electors Crus lib. 4. cap. 4. The eldest Sons of the Electors preceed all the other Princes of the Empire The Arch-dukes of Austria have the first Seat next to the Electors CHAP. VII Of the Precedency of Church-men I Need not debate the Differencies that have fallen in amongst the Patriarchs of Rome Constantinople Antioch Alexandria and Ierusalem Those of Rome and Constantinople having claimed Precedency because their See were the seats of the Roman and Grecian Empires Those of Ierusalem claiming preference because the chief Priest-hood was once settled there Those of Antioch claiming precedency because Antioch was the first seat of Christianity as is clear by the 11. chapter of the Acts And those of Alexandria pretending that they were equal to the Roman Patriarch at least because Alexandria was the chief City of the East before the building of Constantinople and the Church thereof being by Euseb. lib. 11. said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vide Salmas de Primat pap cap. 12. Thus far did Precedency invade even Religion and raise Emulation amongst those who pretended to be the greatest Paterns of Humility The Roman Patriarch was by Phocas the Emperour raised above all the rest in the year 606. since which time they have raised themselves by several Degrees to the Papacy though it cannot be denyed but even before that time the Bishops of Rome had the first Seat in all Councils as is clear by Iustinians Novella 131. cap. 2. And in the Council of Nice Adrian Bishop of Rome had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Or the power of preceeding did still belong to the Emperours as hath been fully cleared by Crusius and others And though it be pretended that Constantine the Great did from Christian Humility prefer the Successour of St. Peter as Vicar of IESVS CHRIST to himself and that in the Canon Law cap. Constantinus 14. Dist. 96. the Emperour Constantin is brought in acknowledging himself to have led the Popes Bridle and in the Famous Ceremonial of Rome Fol. 21. the Emperour is allowed no higher place then the Popes Foot-stool Yet Frederick the 1. Emperour did contentiously Debate this Precedency with Adrian the fourth since which time it hath been variously acquiesced in by Popes and Emperours And though the Legats be Representatives of the Popes yet Thuan tells us lib. 98. That the Learned Brissonius President of the Parliament of Paris would not suffer the Popes Legat to preceed him And at the Coronation of Charles the fifth the Pops Legat was denyed the precedency from the Electors The Cardinals have Debated for Precedency with the Patriarchs though by the Novella 132. c. 2. Iustinian places Patriarchs next to the Pope And Panormit in cap. antiqua X de privileg excess Praelat prefers the Patriarchs to the Cardinals and now by the Concession of Sextus Quintus that Pope hath raised the Cardinals to an equal Degree with Kings and if Kings be present at Table or other Solemnities with Cardinals If there be but one King he is to sit after the first Cardinal Bishop and if there be moe Kings they sit mixtly with the Cardinals first a Cardinal and then a King But though this holds amongst Popish Princes yet the Authour of Les Memoirs des Ambassadeurs does Observe That Leicester Grotius and the other Ambassadours of PROTESTANT Princes never yeelded Precedency to Cardinals till Lockhart Ambassadour for Cromwel yeelded it to Cardinal Mazarine Where he likewise observes That though the Prince of Condie yeelded the Precedency to Cardinal Rechlieu yet the Count of Soisson refused it The Bishops of Scotland preceed in this manner Arch-bishops of St. Andrews Arch-bishops of Glasgow Bishops of Edinburgh Bishops of Galloway Bishops of Dunkel Bishops of Aberdeen Bishops of Murray Bishops of Rosse Bishops of Brechin Bishops of Dumblane Bishops of Caithness Bishops of the Isles Bishops of Argyl Bishops of Orknay I find by Letter in anno 1625. that before King Iames going into England the Marquesses of Scotland did take place from the Arch-bishops But now the Arch-bishops take place from all Dukes and Marquesses in imitation of England And by a Letter in anno 1626. renewed in anno 1664. The Arch-bishop of St. Andrews is to take place from all Subjects which is to be limited as not to exclude the Kings Children and Brothers as I conceive And de facto the Arch-bishops of St. Andrews ceds to the Chancellour since the Letter The Bishops of England Preceed thus Arch-bishops of Canterbury Arch-bishops of York Bishops of London Bishops of Durham Bishops of Winchester Bishops of St. Davids Bishops of Ely Bishops of Norwich Bishops of Hereford Bishops of Salisbury Bishops of Peterborough Bishops of Carlisle Bishops of Worcester Bishops of Rochester Bishops of Landaff Bishops of Lincoln Bishops of Bangor Bishops of Exeter Bishops of Chichester Bishops of St. Asaph Bishops of Oxford Bishops of Lichfield and Coventrie Bishops of Bristol Bishops of Glocester Bishops of Chester Bishops of Bath and Wells CHAP. VIII General Observations concerning the Precedency of Subjects NObility is devided with Us as in England in Nobiles Majores Minores the Greater and the Lesser Nobility Under the Greater are comprehended all such as are Lords of Parliament Under the Lesser are comprehended Knights and Gentlemen And though all these be not Peers of Parliament yet they are all Peers to one another And thus a Gentlemen may be offered to a Dukes Daughter whose Ward and Marriage falls to the King as has been often decyded nor can that Match be refused upon the account of Inequality And it hath been found that though Noblemen must be judged by their Peers yet Landed Gentlemen may pass upon their Assyse and a Nobleman is oblieged to accept of a Challenge from a Gentleman as his Peer where Duels are Lawful Under the word Barron all Our Nobility are comprehended as is clear by the 81. Act. Parl. 14. Ia. 2d And the Inscription of the first Parliament of K. Ia. 5th where the Parliament is said to be holden per Regis Regni tutorem una cum Praelatis Barronibus Burgorum Commissariis Albeit the Parliament of Rob. 1. was cum Episcopis Abbatibus Prioribus Comitibus Barronibus aliis Magnatibus which shews that there were other Magnates infra Barrones It may be Doubted Whether the Younger Son of Dukes Marquesses c. are to be Ranked inter Nobiles majores since they sit not in Parliament Or inter Nobiles Minores since they are designed Lords and take place from many of the Nobiles Majores The Sons of the Kings of France were all Kings and Soveraigns in
the first two Races Because according to the old German Custom the Few and Honours were devided equally amongst the Sons As now all the Sons of a Duke are Dukes there c. But thereafter all the other Children except the Eldest got onely place and Precedency according to their Offices or Dignities until Philip de Valois Succeeded as Prince of the Blood in a remot Degree After which the French thought fit to give Precedency to those who might one day be their King And so all the Princes of the Blood got precedency from all Subjects With Us the Kings Children Uncles and Nephews onely had precedency from all Subjects And in SCOTLAND no remoter Degree preceed as Princes of the Blood For the Families of Hamiltoun Kinghorne Fintrie and others are Descended from Our Kings by lawful Marriages but had no precedency upon that account The first place next to the King is due to the Prince of SCOTLAND amongst Us who is likewise Duke of Rothesay as the second Son is Earle of Ross that being an Appanage inseparable from him by Act of Parliament But at present his Royal Highness is with Us Duke of Albany as he is Duke of York in England It has been doubted Whether the Kings Son Uncle Nephew c. have the Precedency from the Kings Officers in the actual exercise of their Office as at Coronations Riding of Parliaments in which it is the Constables priviledge to ride upon the Kings Right hand and the Marishals on his Left in his return from the Parliament house The Reason of which Difficulty is because these are Acts which follow the office and not Blood and the Nature of the Action requires that they should be posted where they may be most serviceable I find likewise that this hath been Debated in France whereupon in anno 1576. Henry the third emitted an Ordinance in Favours of the Princes of the Blood And with Us his Royal Highness the Duke of York at His Majesties Coronation preceeded all the Officers Amongst the Princes of the Blood the Last descended from the Royal Family has still Precedency accordingly But though this hold in the Branches yet the Eldest of the same Branch will preceed all of that Branch and thus the Prince Palatins Grand-Child would succeed to the Crown before Prince Rupert his Brother though Prince Rupert be several Degrees nearer I find that of old all Church-men were Ranked together and were first Ranked before all Laicks And thus the Parliament of King Robert the first was habito Solemni tractatu cum Episcopis Abbatibus Prioribus Comitibus and even before the Kings Sons Brothers or Nephews Thus King Robert the first grants a Charter to the Abbacy of Aberbrothick Confirming a Ratification made to them be Lundie wherein the Witnesses are Reverendis Waltero Gilberto Episcopis c. Davide Duce de Rothesay Comite de Carrick Carissimo nostro Filio primigenito Roberto Duce de Albania Comite Fyffe Fratre nostro And even the Abbots and Priors were Ranked before them and when any of them were Officers of State they were named according to their Ecclesiastick preferments Thus Iacobo Sancti Andreae Episcopo Galvino Archiepiscopo Glaseuensi Cancellario nostro And in the Session when it consisted of half Church-men half Laicks the Church-men sat on the Chancellors Right hand and Voted first But it does not follow from these Instances that therefore of old any Church-man did take place from the Kings Son no more then that a Bishop took then place of an Earl because he was named before them The Archbishop of St. Andrews was by a special Letter in anno 1626. and Renewed in Ianuary 1664. Declared to have the Precedency from the Chancellor and all His Majesties Subjects In time of Popery he was Legatus natus and both then and now he is totius Scotiae Primas But though by this Letter he is Ordained to take the place of all Subjects yet I think it would not give him place from the Kings Sons Uncles and Nephews though they be likewise Subjects since the word Subjects must be here Interpret according to the Custom of Nations by which these near Relations of Princes are preferred to all other Subjects The Nobility of Scotland were either Declared such by Feudal Erections their Lands being Erected by the King in a Dutchy Earldom c. which did of it self make him a Duke or Earl in whose Favours the Lands were so Erected Or else they got Patents of Honour Declaring them Dukes Earles c. and this is a much later way none being Nobilitated by Patents amongst Us before King Iames the first The third way of Nobilitating with Us is by Creation and Solemn Investiture the whole Form whereof will in all its Ceremonies be best known by the following Narration The Form of the Creation of the Marquess of Hamilton and Marquess of Huntly tuesday the 17 of April 1599. IN His Majesties great Chamber in the Abbay of Holy-rood-house where the like Ceremony was wont to be done being richly hung with Tapistry five Stages or Degrees of Timber were Erected One for His Maiesty on the West-side whereon His Majesties Chair of State was set under the pale of Honour One for the Duke One for the Earles One for the Lords and one for the Knights There was also before the Throne a Table covered with cloath of Gold whereon was laid the Sword Scepter and Crown the Noblemen attending the Ceremony in their respective Seats in their Robes and His Majestie in His Rob-Royal being placed in His Chair The Queen sitting by The Lyon King of Arms and Master of Ceremonies With the Heraulds and Pursivants in their Coats and Trumpets sounding brought in before His Majesty these two Noblemen viz. The Earles of Arran and Huntly the first conveyed be the Duke of Lennox and Earl of Mar the second be the Chancellor and Earl of Caithnes Thereafter the Lyon asked His Majesty If His Majesty would be pleased to promote these Noblemen to further Honours His Majesty answered Yes Then the Lyon Master of Ceremonies with Heraulds Pursivants and Trumpets Conveyed them into the Green Council-chamber where they were Devested of their Comital Robes and Vested in the habit of a Marquess And so were again conveyed to His Majesties presence thus The Ordinary Macers that attend the Chancellor and Session making place Master of Ceremonies Trumpets sounding with the Noblemens Colours at their Trumpets Pursivants in their Coats Heraulds in their Coats Four Gentlemen for each of the Persons to be Created bearing their Honours viz. For my Lord Arran Robert Hamilton of Goslington the Penon Alexander Hamilton of Fenton the Banner Claud Hamilton of Shawfield the Marquess Crown Iohn Campbel of Ardkinlas the Patent For my Lord Huntly Iohn Ogilvy of the Craig the Penon Iohn Crichton of Frendraught the Banner Mark Ker of Ormistoun the Crown Alexander Gordon of Strathdon the Patent Lyon King of Arms. The two Earles conveyed be the forenamed Noblemen
in their respective Robes and Crowns on their Heads Coming before the King they made their Reverence Then they were led up by the Master of Ceremonies some steps and sitting down on their Knees on Velvet Cushions the Lyon made an Harrangue both to His Majesty and to them Declaring to the Noblemen That it pleased His Majesty to promote them to that Dignity and that he desired them to Fear GOD and obey His Power Then he took their Oaths that they should obey GOD his Majesty and mantain the Religion then profest Thereafter the Lyon delivered to His Majesty the Patents and His Majesty redelivered them to the Lyon who gave them to the Noblemen In token that they should obey GOD and His Majesties Laws Afterwards the Lyon delivered His Majesty the Marquesses Coronets His Majesty redelivered them to the Lyon The Lyon put the Crowns on their Heads saying Iohn Marquess of Hamilton Earl of Arran Lord Even c. George Marquess of Huntly Earl of Enzie Lord Gordon and Badzenoch c. The same was Proclaimed furth of the windows by the Heraulds and Pursivants with sound of Trumpet Then were they conveyed to their Seats and placed above the Earles upon the Kings left Hand Trumpets sounding The Lyon desired His Majesty to Honour the Gentlemen who bare the Honours with the Honour of Knight-hood His Majesty consented The Lyon caused them sit down on their Knees at the foot of all the Stage and after he had made an Exhortation to them and received all their Oaths they holding up their Hands and promising to obey all the Injunctions The Lyon presented the Sword to His Majesty who stroke each of them therewith on the Right shoulder and Sir offered the Spur the Lyon first proclaiming their Styls and after the Heraulds and Pursivants at the windows with sound of Trumpet I find this Difference in the Creation of many Earles from what is here set down That the four Gentlemen bear the Honours thus The first the Penon the second the Standart the third Sword and Belt the fourth the Crown and lastly the Lyon bear the Patent in a Velvet bag And that the Lyon offered first to His Majesty the Sword and Belt and receiving it back put it on the Person Nobilitat As also when the King was not present and after His going to England The Ceremony was performed be His Majesties High Commissioner if there was one at the time Or otherwise a Writ was direct to the Lord Chancellor appointing him Commissioner for that Creation And then the first thing that was done after the person to be Created was brought in the Lyon gave the Patent to the Commissioner who gave it to the Register or Clerk of Council to be read And I Observe this in all Our old Creations that if the person to be Dignified was a Lord formerly he was conveyed in be two Lords and the Ceremony of the new Creation being over was conveyed to his place by two of that degree to which he was advanced The English Nobility are sometimes Created by being called in a Write to Parliament under the Designations of Earles Viscounts c. Which way is unknown to Us in Scotland though the King may introduce it at His pleasure The Precedency amongst Subjects is thus Established in both Kingdoms Dukes of the Blood Royal Other Dukes according to their Creation The Eldest Sons of Dukes of the Blood Royal Marquesses according to their Creation Dukes Eldest Sons Earles according to their Creation Marquesses Eldest Sons Dukes Younger Sons Viscounts according to their Creation Earles Eldest Sons Marquesses Younger Sons Barrons whom We call Lords Viscounts Eldest Sons Earles Younger Sons Barrons Eldest Sons Barronets Viscounts Younger Sons But the Officers in England are by Act of Parliament Henry the 8. thus Ranked Lord Chancellour Lord Thesaurer The Lord President of the Privy Council The Lord Privy Seal These four being of the Degree of a Barron or above shall sit in Parliament and all Assemblies of Council above Dukes not being of the Blood Royal. The Lord Great Chamberlain The Lord High Constable of England The Earl Marishal of England The Lord Admiral of England The Lord Great Master or Steward of the House The Lord Chamberlain of the Houshold These last Six and the Kings principle Secretary take place according to their present State So that if they be Barrons they take place above all Barrons If Earles above all Earles If Dukes above all Dukes By a Decree and Establishment under the Great Seal of England 1 o. Iacobi the following persons are thus Ranked Knights of the Garter Knights of the Privy Council The Master of the Wards and Liveries The Lord Chancellor and Under-Thesaurer of the Exchequer The Chancellor of the Dutchy The Chief Justice of the Kings Bench The Master of the Rolls The Chief Justice of the common Pleas The Chief Barron of the Exchequer The other Judges and Barrons of the degree of the Coif The Younger Sons of Viscounts The Younger Sons of Barrons The Barronets The Precedency amongst Our Nobility differs nothing from what is here set down England and We agreeing in all points since the Union of the two Kingdoms And especially since the Coronation of King Charles the first at which time he Declared he would have it so But to prevent Differences betwixt the Nobility of both Kingdoms It was Ordered That all those of the same Degree in England should in England take place from all those of the same Degree in Scotland And all those of the same Degree in Scotland should in Scotland take place of the English That is to say All the English Dukes should take place in England of all the Scots Dukes And all the Scottish Dukes in Scotland should take place of all the English Dukes which was very Just and Suetable to the Laws of Nations But as to the Ranking of Our Officers We Differ much from England For clearing whereof it is fit to know That with Us there were Officers of the Crown and Officers of State The Officers of the Crown were all Designed of Scotland as Constabularius Scotiae c. In King Malcom the II. his Parliament The Offices then Extant were The Chancellour the Justice General the Chamberlain the Steward the Constable and Marishal and they are thus Ranked and have their Respective Fees But by the Act 31. Parl. 11. Ia. 6. The Offices of the Crown are Declared to be The Thesaurer Secretar the Collector which Office is now joyned with the Thesaurers the Justice General Justice Clerk Advocat Master of Requests Clerk of Register And though these be called Officers of the Crown there I conceive they Differ not from the Officers of State And these words Officers of the Crown and Officers of State are now Equipollent Terms so far that all the Officers of State are Officers of the Crown by this Act But the High Chamberlain Constable Admiral and Marishal are Officers of the Crown but are not Officers of State
c. By Act of Parliament likewayes 14. May 1661. The Lord President of the Session is Declared to have Precedency from the Register Advocat and Thesaurer-deput And the Register and Advocat are Ordained by the same Act to have Precedency from the Thesaurer-deput But the Thesaurer-deput pretending that he is in effect Thesaurer in the Thesaurers absence and not the Thesaurer-deput and that the foresaid Act of Parliament was in absence he now pretends Precedency from both the Register and Advocat To the end the several Offices may be the better understood It is fit to know that the Chancellor is in effect the first Officer in the Nation and is by his Office and by a particular Statute President in all Courts Act 1. Parliament 1. Charles the second which Act of Parliament was made to declare that he was Presedent of the Exchequer as well as of other Courts this having been pretended to by the Thesaurer He hath his title not from the power of Cancelling as the old Gloss sayes That Cancellarius est qui habet Officium scripta responsaque Principis inspicere male scripta Cancellare For it is not imaginable that he would take his title from what he destroys and not from what he does But from the Cancelli and Barres within which the Judges did sit inclosed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is clear by Cassiodor lib. 11. Epist. 1. Those Cancellarii of old were in effect the Clerks and the Chancellour is so called now Because he signs all the publick Papers and Appends the Seal Ideo quod ad eum universae publicae referrentur conscriptiones ipseque eas annulo Regis sive Sigillo firmaret Simaque lib. 1. calls him Questor Legum Conditor Regalis Consilii Particeps Iustitiae Arbiter Which names I conceive are given to him because Novel 114. Divinae jussiones debent habere subscriptionem gloriosissimi Questoris and many of the Novels are signed Questor Legum I find that in the Laws of King Malcolm Keanmore the Chancellour is placed before all the Officers and sometimes many of the considerable Earles are placed betwixt him and the rest of the Officers Thus King Alexander grantes a Charter Testibus Willielmo de Bosco Cancellario meo Malcolmo Comite de Fyffe Alano Senescall◠Scotiae c. Some think that there is a Difference betwixt Cancellario meo whom they make Director of the Chancery and Cancellario Regni whom they make High Chancellour And others make a Difference betwixt Cancellarium Regni Cancellarium Regis as Spotswood in his History observes But I find that the High Chancellour is called Cancellarius meus as in the foresaid charter and sometimes Cancellarius simply and sometimes Cancellarius Noster and sometimes Regni and sometimes Cancellarius Scotiae And the same Willielmus de Bosco is in the Chartularies of Aberbrothick and Calco or Kelso named under all these Designations I find the Director of the Chancery was onely a servant to the Chancellour of old For in King Malcolms time amongst the Fees to be payed to the Chancellours Clerks there is a Fee to be payed to his Clerks for the Breeves which Breeves belong to the Director of the Chancery And therefore Skeen does justly Observe hinc liquet Officium Directoris Cancellariae apud majores nostros ad Cancellarium pertinuisse and which is very clear by the Statutes of King Rob. 3. cap. 1. vers 3. I find that in these Laws Iusticiarius that is to say The Justice General is placed next the Chancellour but afterward Scotland was divided in two Justitiaries on upon the South-side of Forth who was called Iusticiarius Lothaniae and in old Charters Iudex Laudoniae And the other on the North-side of Forth The Justice General is now neither Officer of the Crown nor Officer of State But yet he thinks he ought to have Precedency from the President of the Session the Justice Court being older than the Session And being President of a supream Court he is to preceed any Inferiour Member of any other Supream Court And the King by Declaring that he advanced the Register when he made him Justice General has clearly signified that the Justice General ought to preceed the Register This place likewise has been generally possessed by Noblemen and is the same with Us that the Chief Justice of the Kings Bench is in England And this Jurisdiction was amongst others possessed at Rome by the Praefectus Praetorio who was their chief Magistrat The Justice Clerk by the foresaid Statutes of King Malcolm appears to have been but his Clerk And though by the foresaid Act of the 11. Parliament K. Ia. 6. The Justice Clerk be named before the Register and Advocat yet that is onely ob continentiam causae because they are set down The Justice Justice Clerk and their Deputs It is Observable by that Act that the Justice General is put after the Thesaurer and Secretary and there the Justice Clerk is not made his Officer as in the Laws of King Malcolm Keanmore I find that Alanus Iusticiarius Scotiae Designs himself Hostiarius Iusticiarius Scotiae which shews that Hostiarius was a preferable Office and this I take to be Commander of the Kings Hoast For Ostiarius is not written with an H and is a meaner Office then Justice General This Charter is granted in anno 1253. to the Abbacy of Aberbrothick and though others may mistake the Ranking of a mans Titles yet the Bearer will carefully Rank his own Designations The third Officer named in those Laws is the High Chamberlain Camerarius Domini Regis And I find him in all the old Writes placed as Witness before all the other Officers next to the Chancellour There was Magnus Camerarius who was chief Judge over all the Burrowes And there were other under Chamberlains who are oftentimes Designed Camerarii without the adjection of magnus And I find in a Charter granted be K. David in anno 1495. the witnesses are Alexandro Domino Huyme magno Camerario nostro Iohanne Domino Drumond Iusticiario nostro Ricardo Murehead Secretario nostro Waltero Drumond nostrorum Rotulorum Registri ac a Consiliis It is Observable that the Officers were oft-times named according to the quality of the Bearers and not according to the precedency of the Offices But in the former Charter Dominus de Huyme and Dominus de Drumond being of the same quality the Chamberlain is put before the Justice General This Office of Chamberlanry was possessed Heritably of late by the Dukes of Lennox and the Badge was a Golden Key This Office is the same with praepositus Sacri Cubiculi mentioned by Iustinian and equall'd by him to the Praefectus Praetorio and placed inter illustres Palatinos or Counts of the Palace And is now in France called Grand Chambrier and was constantly possessed by the Family of Burbon I find the Magnus Camerarius placed before the Thesaurer in a Confirmation anno 1520. to the Abbacy of Aberbrothick
Senescallus Domini Regis is next in these Laws that is to say The High Steward of Scotland and Allanus Senescallus Scotiae is very Famous in all the old Charters and he is still placed before the Constable and Marischal And it appears that the High Steward and the Steward of the Kings House were the same for those Laws mention only the Steward of the Kings House but now the Prince is Senescallus natus Scotiae Under him are there placed the Panetarius who commands over all the Bakers and Buttelarius who commands over all the Keepers of Taverns c. I find the Lord Souls was Buttelarius Scotiae in the Letter before set down Directed from the Nobility of Scotland to the Pope in the Reign of King Robert the Bruce And I have seen a Charter wherein Iohn and Thomas Murrayes sons to the Governour of Scotland Sir Andrew Murray were designed Panetarii Scotiae upon the Forfeiture of Iohn Cunning Earl of Monteith in anno 1348. which Earl of Monteith was formerly Panetarius Next to these are named in the foresaid Laws the Constable and Marischal But now the Constable and Marischal take not place as Officers of the Crown but according to their creation as Earls The Reason whereof I conceive to be because of old Offices did not prefer those who possessed them but they took place according to their Creation whereas now the Privy-Seal precedes all Dukes and the Secretary takes place before all of his own Rank But the Constable and Marischal being now the onely two Officers of the Crown that are Heretable in Scotland continue to possess as they did formerly But in France England and all other places the Constable and Marischal take place as Officers of the Crown and it seems very strange that these who Ride upon the Kings right and left Hand when he returns from His Parliaments and who guard the Parliament it self and the Honours should have no Precedency by their Offices And yet I cannot deny but that of old other Earls were placed before them for in the former Charter granted by King Alexander Malcolm Earl of Fife is placed before them And I conceive their Precedency has not risen of late to the same proportion with others Because of late Our Armies have been commanded by other Officers and so there was little use for the Constable and Marischal The Constable with Us in these Northern-Nations is the same Office that the Comes Stabuli was under the Roman Empire which may be confirmed by two clear Testimonies of great Antiquity one is of Aimon lib. 3. cap. 7. Land gesilis Regalium praepositus equorum quem vulgo Comes Stabuli vocant The other is from Rhegino lib. 2. Annalium Burchardum Comitem Stabuli sui quem corrupte Constabulum appellabis cum classe misit in Corsicam Though the Learned Cujac does believe that this Title comes from the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies a company of Men of War ad l. unic de Comit. Tribun Scolar And there are some who derive it from the word Koning which signifies a King and Staple which signifies a Hold because some Constables were Commanders of the Kings Houses But I find that the High Constable did command the Kings Armies but was expresly debarred from commanding either His Houses or Garrisons as L'oiseau well observes lib. 4. cap. 2. Because says he It was a great power that one man should command both the Army and the Garrisons The Badge of his Office was and is a naked Sword which in the Roman Empire was the Badge of the Office Praefecti Praetorio and Trajan giving the naked Sword to Suro Licinius who was his Praefectus Praetorio gave it with these words Pro me si mereor in me Which words were thereafter put by Buchanan with a naked Sword upon the Money Coined during the Minority of King Iames the sixth The Constable with Us was by the Laws of King Malcolm cap. 6. Judge to all Crimes committed within twelve Miles to the Kings House or Habitation Though Skeen observes that the best Manuscripts bear only two Leagues But now his Jurisdiction is only exercised either as to Crimes or otherwise during the time of Parliament which some extend likewise to all general Conventions The Marischal is a German word and Office originally as the Learned Tillet proves fully a Marker of Camps and the Ax which he bears as the Badge of his Office was that Instrument wherewith he did break the Ground though now this part of his Office is delegated to the Marischal du Camp The Marischal commanded the Horse as Tillet proves whereas the Constable commanded both But yet our Learned Craig calls the Constable onely Praefectus Equitum And yet as Tillet observes the Marischal was not under the Constable else he could not be an Officer of the Crown For it is essential to all Officers of the Crown and Officers of State to depend upon none but the King Of old I find the Orders in Military cases run to Our Constable and Marischal The Office of Marischal has never been out of the Family of Keith But the Earls of Athol and several others have been Constables of Scotland And therefore it is that the Earl Marischal hath no other Title But the High Constable designs himself Earl of Errol We had no Knight Marischal in Scotland till King Charles the Firsts Coronation in anno 1633. at which time it was Erected by a Letter to the Privy Council by his Office he is to take place immediately after the younger Sons of Lords The Thesaurer is not mentioned amongst these Officers of the Crown under King Malcolm Keanmore and of old it has been thought but an Office of the Kings House For in a Confirmation granted to the Abbacy of Aberbrothick in anno 1529. by King Iames the fifth after Reverendissimis Episcopis and dilectis consanguineis are enumerate as Witnesses dilectis Familiaribus nostris Roberto Barton nostro Thesaurario Computorum nostrorum Rotulatore Nor do I find a Thesaurer designed as Witness in any of the Kings Charters till then though some foolishly think that Panetarius was Thesaurer And though the word Familiar Counsellour be now given to all Officers of State who are not Earls because they cannot be called Cousins Yet of old it was only given to those of the Kings own Family and was derived à Familia though now Familiar is thought to be the same with Intimate Till of late Thesaurer Comptroller and Collector of the Augmentations were three different Offices but now they are all joyned in one Comptroller is in the old Registers called Rotulator The Thesaurer takes now place as second Officer of State next to the Chancellor Next to the Thesaurer is the President of the Privy-Council After him the Privy-Seal but the Secetary is only first of his own Rank that is if a Duke the first Duke c. Of old the Secretary was a very Honourable Imployment For as
Cassiodor lib. 1. opist 4. well observes Honor hic datur egregiis dum ad Imperiale Secretum tales constat elegi in quibus reprehensionis vitium non potest inveniri But yet I find the Secretary onely named in the former Confirmation inter Familiares Of old I find he was Stiled Clericus Regis though some Interpret this Clericus Regis to be either Clerk-Register or the Kings Confessor and Clerk to His Closet and some that he was Almoner We have no Master of Requests now that charge being swallowed up by the Secretaries Office Their Office with Us was as at Rome To represent to the King the complaints of the People Referendarii says Cassiodor lib. 6. dolores alienos asserunt conquerentium vota satiant per eos Iudices corriguntur I find that Advocatus Fisci now Our Kings Advocat or Atturney-General was dignified with the Title of Comes which is now Earl l. jubenius i. de Advoc. divers jud and with the Titles of Clarissimus Spectabiles which was only bestowed on the chief Nobility l. 4. 6. eod tit and from this seems to have flowed Our calling them Lord Advocat And the French calling them Messire which Title only the Chancellor and Advocat there get Upon this Officer Rome in the Reign of Claudius the Emperour bestowed so much Honour that he said Tantum Honoris Authoritatis concessisse procuratori Caesaris ut eum suis Legibus adaequaverit volueritque ut quod ipse statuisset perinde ratum esset ac si ab ipso foret constitutum And of old they were still of the Order of Knights for Tacitus in the life of Agricola says utrumque avum procuratorem Caesaris habuit quae equestris Nobilitas est The Kings Advocat is with Us as in France Consiliarius Natus that is to say is by vertue of his Office a Privy Counsellor in a more peculiar way than the rest For I find by the Records of Council in Queen Maries time that the Register and Justice-Clerk are expresly mentioned in the Commission of Council but the Advocat is in all the Sederunts though he be not named in the Commission And though with Us it was not allowed to the Kings Advocat till Sir Thomas Hope's time that he should be present at the Lords advising of Causes where the Advocat was himself Interested Yet I conceive in Causes which he pleads meerly upon the Kings Account he ought to be present even when the Cause is advising This was allowed Advocato Fisci for Trajan writing to Plinius Commands eos adhibere in Consilium à Praesidibus cum de causa Fiscali agitur which explains very well L. 7. de Iur Fisc. Where si Fiscus alicui status controversiam faciat Fisci Advocatus adesse debet quare si sine Fisci Advocato pronunciatum sit divus Marcus rescripsit nihil esse actum ideo ex integro cognosci opportere Of which Office the Learned Budeus gives this Character Magistratus is est in quem omnes suas actiones Princeps Populus universi transcripserunt asylum Legum arx Iustitiae innocentiae vim passae aut Iudicio circumventae propugnaculum intercessor rerum malarum suasor rerum bonarum praesentis semper animi Actor Defensor de sententia Iuris Equitatis I find that though per L. nemo C. de assessor no man can be both a Judge and Advocat yet the Kings Advocats in France have been allowed to be Judges at the same time they were Advocats for it was thought that the Office of Kings Advocat did naturally participate both of the Judge and Advocat and so was not inconsistent with the Imployment of a Judge l. ult c. de Advocat Fisc. and this was so decided by the Parliament of Paris in Iune 1605. And from this We probably in Scotland took occasion a little after that time to make Sir William Oliphant and of late Sir Iohn Nisbet both Advocats and Lords of the Session The Almoner with Us has no Precedency for ought I know though in France Le grand Aumosnier is thought to be an Officer of the Crown He is very oft a Witness in all Our Charters granted be Our Kings and some think that Clericus noster was Almoner I find that Cockburn of Lanton who was also custos magni Sigilli in the second year of King Robert the thirds Reign is made heretable Ostiarius nostri Parliamenti that is to say Usher of the Parliament The Lyon and he does Debate who shall go next to the King or His Commissioner in Parliament and Conventions The Usher pretending that if he behoov'd to go after the Lyon he behooved to go before the Heraulds and so he behooved to walk between the Lyon and his Brethren which were not decent though both in England and with Us I find that several Degrees of Persons do in all Processions walk between the Garter or Lyon and his Brethren Heraulds Likeas it is implyed in the nature of the Ushers office that he should immediately usher him to whom he is Usher but in England I find that at the Cavalcad when His Majesty entred London in anno 1660. and at His Coronation Garter King of Arms did walk in the midst having the Mayor of London on his left hand and the Knight of the Black-Rod on his right And the Author of Les Memoirs des Ambassadeur tells Us that in anno 1629. at the Procession for Celebration of that solemn Peace betwixt France and Spain the King of Arms did walk immediately before the French King Le Roy d'armes marchant immediatement devant Le Roy. I am likewise informed that in England the Precendency runs thus King of Arms Usher of the Black-Rod Master of Ceremonies and after him the Gentlemen of the Privy-Chamber c. The Title of Duke came from Dux a Leader and Commander of an Army and was at first a Title of Office but now is a Dignity given by Kings and Princes to men of Blood and good Merit And with Us the Prince of Scotland as is already said is Duke of Rothesay The word Marquess was first appropriate to the Lords of the Marches and Frontiers but is since become a Title of special Dignity betwixt a Duke and Earl Earl came from the Saxon word Ear-ethel which was abridged to Ear-el and afterwards by Abbreviation Earl with the Dutch called Eorle and at this day the Germans use the word Grave for it They are in Latine called Comites with Us because in the Roman Empire Comitatus was called the Court of the Prince l. 43. de Testament Militar l. 13. ff de re Militar and those who attended the Emperor were called Comites or his Companions They were appointed to be Governours of the several Countrys of the Empire which were from them called Comitatus or Counties and Earls are to this day designed Earls of such a Shire But the Kings thereafter being desirous to have their Subjects depending immediately upon themselves did
Earl of Forfar His Eldest Son Lord Wendal Midleton Earl of Midleton His Eldest Son Lord Clearmont Scot Earl of Tarras His Eldest Son Lord Alemoor Gordon Earl of Aboyn His Eldest Son Lord Glenlivet Boyd Earl of Kilmarnoch His Eldest Son Lord Boyd Cochran Earl of Dundonald His Eldest Son Lord Cochran Dowglas Earl of Dumbritan His Eldest Son Lord Dowglas of Attrick Keith Earl of Kintore His Eldest Son Lord Inverury Sinclar Earl of Caithnes His Eldest Son Lord Berrendule VISCOUNTS Cary Viscount of Faulkland Constable Viscount of Dumbar Murray Viscount of Stormont Gordon Viscount of Kenmore Arbuthnet Viscount of Arbuthnet Crichton Viscount of Frendraught Seton Viscount of Kingston Macgil Viscount of Oxenford Livingston Viscount of Kilsyth Osburn Viscount of Dumblane LORDS Forbes Lord Forbes Fraser Lord Salton Gray Lord Gray Cathcart Lord Cathcart Sinclar Lord Sinclar Dowglas Lord Mordington Semple Lord Semple Elphingston Lord Elphingston Oliphant Lord Oliphant Fraser Lord Lovat Borthwick Lord Borthwick Ross Lord Ross Sandilands Lord Torphichen Lesly Lord Lindors Elphingston Lord Balmerinoch Stuart Lord Blantyre Areskin Lord Cardross Balfour Lord Burleigh Drummond Lord Madderty Cranston Lord Cranston Melvil Lord Melvil Napier Lord Napier Fairfax Lord Cameron Richardson Lord Crawmond Macky Lord Rae Forrester Lord Forrester Forbes Lord Pitsligo Mackleland Lord Kircudbright Fraser Lord Fraser Hamilton Lord Bargeny Ogilvy Lord Bamff Murray Lord Elibank Galloway Lord Dunkel Falconer Lord Halkerton Hamilton Lord Bethaven Sandilands Lord Abercromby Carmichal Lord Carmichael Sutherland Lord Duffos Rollo Lord Rollo Ruthven Lord Ruthven Colvil Lord Colvil Mackdonald Lord Mackdonald Bellenden Lord Bellenden Lesly Lord Newwark Rutherfurd Lord Rutherfurd Ker Lord Iedburgh Weems Lord Bruntisland ¶ It is to be observed that the eldest Sons of Viscounts and Lords are designed Masters by their Fathers Titles Lord Thesaurer-deput Lord Register Lord Advocat Lord Iustice-Clerk This is the Precedency stated by the present Rolls of Parliament albeit it is not acquiesced in by all the Nobility For the Earl of Sutherland contends with all the Earles who are ranked before him and generally such as are dissatisfied with these Rolls do protest whilst the Rolls are called against such as they conceive are unjustly ranked before them Sometimes also the Son has a different Precedency from what was possessed by his Father As the Earl of Lothian who now as succeeding to his great Grand-father by the Mother comes to have his Precedency next to the Earl of Wigton though his Father taking place by a new Patent was ranked as in the above written Rolls The Justice General pretends to the same precedency with the Lord Chief Justice of the Kings Bench in England by a report made by the Lord Thesaurer in the Kings name the 17. Iune 1637. but neither is the Letter to which this report relates extant nor has he been in possession since And it is fit to observe that notwithstanding of what is said before page 42. by a Servants mistake that the Lord Privy-seal takes place with us as in England The Order of Baronet in Scotland was erected for advancing the Plantation of Nova Scotia in America and for settling a Colony there to which the Aid of these Knights was Designed The Order was onely intended be K. Ia. 6. before his Death for in his first Charter of Nova Scotia in favours of Sir William Alexander 10. Septem 1621. And in another Charter granted to Sir Robert Gordon of Lochinvar of a part of Nova Scotia Designed the Barony of Galloway 8. Novem. 1621. there is no mention made of this Order So that the same was onely erected by K. Charles 1. anno 1625. In the several Patents granted to Baronents His Majesty did dispone to each of these Knights a certain portion of land in Nova Scotia erecting the same in a free Barony with great and ample priviledges unnecessary to be insert here And moreover for their encouragement did Erect Creat Make Constitute and Ordain that Heritable State Degree Dignity Name Order Title and Stile of Baronet to be enjoyed be every of these Gentlemen who did hazard for the good and increase of that Plantation And so preferred them to that Order and Title Creating them and their Heirs Male heritable Baronets in all time coming with the Place Preeminency Priority and Precedency in all Commissions Breeves Letters-patents Namings and Writes and in all Sessions Conventions Congregations and places at all times and occasions whatsomever before all Knights called Aequites aurati all lesser Barons commonly called Lairds and before all other Gentlemen Excepting Sir William Alexander His Majesties Lieutenant of Nova Scotia who with his Heir their Wives and Children conform is not onely excepted in each of these Letters-patents granted to the Knights his Consorts But likewise the Charter granted to himself be King Charles 1. 1625. did bear expresly this exception and provision As also excepting Knights-Bannerets who should be Created under the Royal Standard in His Majesties Army and in open War the King himself being present and that during the Bannerets lifetime onely And with Precedency before all of the same Order whose Patents are of a posteriour date His Majesty did moreover Declare and Ordain That the Wives of these Knights and of their Heirs Male should have the Precedency aswell after as before the deaths of their Husbands if they should happen to survive before the Wives of all those of whom the Knights Baronets and their Heirs Male had the Precedeny and even before the Wives of Knights-Bannerets before excepted the Degree of Baronet being heritable And also that the Children Male and Female of the Baronets should take place before the Bairns Male and Female respectively of all persons of whom the Baronets and their Heirs Male had the Priority And likewise before the Children of the Bannerets and that the Wives of the Sons of the Baronets and of their Heirs Male should preceed the Wives of all persons whom their Husbands might preceed and that aswell their Husbands being dead as living And further His Majesty did Declare and Promise That whensoever the eldest Sons and appearand Heirs Male of the Baronets should attain to the Age of twenty one years they should be by His Majesty and his Successours created Equites aurati or Knights Batchelours without payment of any Fies or Dues for the same providing they should desire it But here it is to be observed that some of the eldest Sons of Baronets pretend to the title of Knight at their Majority be vertue of this clause without any previous desire or dubbing which certainly is an errour for if they will not be at the pains to desire it of His Majesty or His Commissioner they should not assume it Likeas His Majesty did Declare and Ordain That the Baronets and their Heirs Male should as an additament of Honour to their Armorial Ensigns bear either on a Canton or Inescutcheon in their option the Ensign of Nova Scotia being argent a cross of St. Andrew azur the Badge of
Scotland counterchanged charged with an inescutcheon of the Royal Arms of Scotland supported on the dexter by the Royal Unicorn and on the sinister by a Savage or Wild-man proper and for the crest a branch of Laurel and a Thistle issuing from two hands conjoyned the one being armed the other naked with this Ditto Munit haec altera vincit And that they and their Heirs Male should in all time coming have place in all His Majesties and His Successours Armies in the middle Battel near and about the Royal Standard for defence thereof And that they and their Heirs Male may have two Attenders of the Body for bearing up the Pale one principal Mourner and four Assistants at their Funerals And that they should be always Called Intituled and Designed be the name and title of Baronet and that in all Scottish Speeches and writings the addition of Sir and in all other discourses and writings a word signifying the same should be preponed to their names and other titles and that the stile and title of Baronet should be postponed and subjoyned thereto in all Letters-patents and other writes whatsomever as a necessar addition of Dignity and that each of them should be intituled Sir A. B. Baronet and his and his Sons Wives should enjoy the stile title and appellation of Lady Madam and Dame respectively according to the usual phrase in speaking and writing And also His Majesty did thereby promise That the number of the Baronets aswell in Scotland as the new Colony of Nova Scotia should never exceed the number of 150. albeit this number is at present somewhat augmented and did likewise Declare That He nor His Successours should never Create nor Erect in time coming any other Dignity Degree Stile Name Order Title or State nor should give the Priority or Precedency to any Person or Persons under the Stile Degree and Dignity of a Lord of Parliament of Scotland which should be or should be presumed to be Higher Superiour or Equal to that of Baronet And that the Baronet should have liberty to take place before any such who should happen to be created of any such degree or order and that their Wives Sons Daughters and Sons Wives should have their places accordingly And that if any question or doubt should arise anent their places and prerogatives the same should be decided and judged according to these Laws and Customs by which other degrees of Heritable Dignities have their priviledges cognosced and determined And finally that none should be created Baronet either of Scotland or Nova Scotia till he had first fulfilled the conditions designed by His Majesty for the good and increass of that Plantation and until he had certified the same to the King by His Majesties Lieutenant there These Patents were ratified in Parliament and were always of this form till the selling of Nova Scotia to the French after which time they were made much shorter and granted in general terms with all the Priviledges Precedencies c. of the former Baronets And in the year 1629. His Majesty did allow these Baronets a particular cognisance which will be best known by the coppy of the following Letter direct be his Majesty K. Charles the first to the Privy Council here RIght Trusty and right well beloved Cousin and Counsellour Right trusty and well beloved Cousins and Counsellours and right trusty and well beloved Counsellours We greet you well Whereas upon good consideration and for the better advancement of the Plantation of New-Scotland which may much import the good of Our Service and the Honour and Benefit of that Our ancient Kingdom Our Royal Father did intend and We since have erected the Order and Title of Baronet in Our said ancient Kingdom which We have since established and conferred the same on diverse Gentlemen of good quality And seing Our trusty and well beloved Counsellor Sir William Alexander Knight Our principal Secretary of that Our ancient Kingdom of Scotland and Our Lieutenant of New-Scotland who these many years bygon hath been at great charges for the discovery thereof hath now in end a Colony there where his Son Sir William is now resident And We being most willing to afford all the possible means of encouragement that conveniently We can to the Baronets of that Our ancient Kingdom for the furtherance of so good a work And to the effect they may be honoured and have place in all respects according to their Patents from Us We have been pleased to Authorize and Allow as by these presents for Us and Our Successours We Authorize and Allow the said Lieutenant and Baronets and every one of them and their Heirs Male to wear and carry about their Necks in all time coming an Orange tannie silk ribbon whereon shall hang pendant in a Scutcheon argent a saltir azur thereon an Inscutcheon of the Arms of Scotland with an Imperial Crown above the Scutcheon and incirled with this motto Fax Mentis Honestae Gloria Which cognisance Our said present Lieutenant shall deliver now to them from Us that they may be the better known and distinguished from other persons And that none pretend ignorance of the Respect due unto them Our Pleasure therefore is that by open proclamation at the mercat-cross of Edinburgh and of all other head Burghs of Our Kingdom and such other places as you shall think necessar you cause intimate Our Royal pleasure and intention herein to all Our Subjects And if any person out of neglect or contempt shall presume to take place or precedency of the said Baronets their Wives or Children which is due unto them by their Patents or to wear their Cognisance We will that upon notice thereof given to you you cause punish such offenders by Fining or imprisoning them as you shall think sitting that others may be terrified from attempting the like And We Ordain that from time to time as occasion of granting or renewing their Patents or their Heirs succeeding to the dignity shall offer that the said power to them to carry the said Ribbon and Cognisance shall be therein particularly granted and inserted And We likewise Ordain thir presents to be insert and Registrate in the books of Our Council and Exchequer and that you cause Registrate the same in the books of the Lyon King at Arms and Heraulds there to remain ad futuram rei memoriam And that all parties having intress may have authentick copies and extracts thereof And for your so doing these Our Letters shall be unto you and every one of you from time to time your sufficient Warrand and Discharge in that behalf Given at Our Court at Whitehall the 17. of November 1629. years The order of Baronet in England was erected by King Iames the sixth for advancing the plantation of Vlster in Ireland and these Knights have Priviledges and Precedencie much like to those above set down and there being a Contraversy for Precedency betwixt them and the younger sons of Viscounts and Barons managed in
presence of King Iames it was determined in favours of the younger sons of Viscounts and Barons But at the same time it was declared That such Bannerets as should be made by His Majesty or Prince of Wales under the Kings Standard displayed in an Army Royal As also the Knights of the Garter Privy Counsellours Master of the Court of Wards and Liveries Chancellour and Under-Thesaurer of the Exehequer Chancellour of the Dutchy Chief Justice of the Kings Bench Master of the Rolls Chief Justice of the Common-pleas Chief Barons of Exchequer and other Judges and Barons of the degree of the Coif should have place and precedency both before the younger sons of Viscounts and Barons and before all Baronets by which some alterations may appear from the Ranking appointed by Henry the fourth Beside what has been formerly observed in the description of Knights Baronets I find that of old a Banneret or a Ban-rent has been with us a title higher than a Baron for by Act 101. Parl. 7. Ia. 1. Barons may choose their own Commissioners but Bishops Dukes Earles Lords and Ban-rents are to be summonded to Parliament by the Kings special precept And it is probable that these Ban-rents were Knights of extraordinary reputation who were allowed to raise a company of men under their own Banner but now it is commonly taken for such as are Knighted by the King or Prince under the Royal Standard in time of War But I conceive that those could not now sit in Parliament upon the Kings precept the former Act of Parliament being in desuetude They have the precedency from Baronets though their Wives have not this being but a temporary Dignity and the other an heritable Barons in England are Lords with us but a Baron with us is properly he who has power of pit and gallows And yet of old I conceive that Lords and Barons were the same for the Statutes of K. Robert 1. bear to be made in his Parliament holden at Scoon with Bishops Abbots Priors Earles Barons and others his Noblemen of his Realm And in Our old Original Acts of Parliament I find that the Lords and Barons are put in one column undistinguished and under the common name Barons And in the first Parliament of K. Ia. the 4th I find the Master of Glames i. e. the Lord Glames eldest son sitting inter Barones Now the Lords are called the Great Barons and the rest are called Small Barons in the 101. Act. 7. Parl. Ia. 1. and ever since But yet I find by the 166. Act. 13. Parl. Ia. 6. every Earl or Lord payes 2000. pounds for Lawborrows and every great Baron 1000. pounds but by great Baron there is meant a Baron of a considerable estate because that Act was to proportion the Surety to be found to the estate of him who finds the Surety The old Barons or Lairds amongst us especially where they are Chiefs of Clans or the Representatives of old Families that were Earldoms as Pitcurr is of the Earl of Dirleton and as Chief of the name of Halyburton have never ceded the Precedency to Knights-Baronets much less to ordinar Knights Though the other pretend that a Baron is no name of Dignity and that Knights-Baronets have a special priviledge that there shall be no degree betwixt them and Lords except the Bannerets And though militia non est per se dignitas Chassan fol. 344. yet generally it is believed that next to Knights-Baronets succeed Knights-Batchelours and next to them our Lairds or Landed-Gentlemen though a Laird in effect is but the corrupt word of a Lord. Amongst such as profess Sciences the Ranking goes thus uncontravertedly 1 o. Such as profess Theology 2 o. Such as profess the Canon-Law 3 o. The Civil-Law 4 o. Philosophy 5 o. Medicin 6 o. Rhethorick 7 o. Poescy 8 o. History 9 o. Grammer 10 o. Logick 11 o. Arithmetick 12 o. Geometry 13 o. Musick 14 o. Astronomy Chassan de gloria mundi pars decima And amongst these such as are Doctors preceed these that are not and amongst Doctours the priority goes by Age. In Towns These who inhabit Cities are preferred to such as inhabit Burghs and generally those in the Metropolitan or capital City are preferred to all the rest And those who have born Magistracy are even when their Magistracy is over preferred to all others And so far is this Precedency observed that 1 o. A younger Alderman or Bailie takes not Precedency from his Senior because he is Knighted or as being the elder Knight as was found in the case of the Alderman Craven who though all the rest of the Alderman were Knighted at the Coronation of King Iames kept the precedency formerly due to him as Senior Alderman But though this hold not onely amongst Aldermen but that even all Knights of the Countrey being Burgesses of a Town do cede to these who have been their Magistrates in it as to publick meetings relating to the Town Yet it is doubted whether such a Knight will be oblieged to give place to an Alderman or Baily in a neutral place But it is determined in the Heraulds Office of England that all such as have been Mayors of London that is to say Provosts with us do take the place of all Knights-batchelours every where because they have been the Kings Lieutenants It is there likewlse remarked That Sir Iohn Crook Serjeant at Law was Knighted before any other Serjeant his Ancient and standing upon Precedency by reason of his Knighthood It was adjudged against him by the Judges viz. that he should take place according to his Serjeancy and not after his Knighthood yet his wife took her place of a Lady before other Serjeants wives The Members of Courts do take place amongst themselves according to the precedency of the Courts where they serve as the Clerks of the Privy Council take place of the Clerks of the Session In Families likewise the Chief of the Family takes place of any Gentleman of the Family And though generally it be believed that Gentlemen have no precedency one from another yet Reason and Discretion do allow that a Gentlman of three Generations should cede to a Gentleman of ten if there be not a very great disparity betwixt their Fortunes and that for the same Reason almost that a Gentleman of three Generations claims precedency from any ordinary Landed-man who was newly acquired his lands CHAP. IX The Precedency due to Women WOmen before their Marriage have Precedency by their Father but there is this difference betwixt them and the Male-children that the same Precedency is due to all the Daughters that is due to the eldest though it is not so amongst Sons and the reason of the difference seems to be that Daughters would all succeed equally whereas the eldest Son excludes all the rest But if this be the adequat and true reason then where the Estate and Honours are provided to the eldest Daughter onely excluding the rest they ought not to have the same
Precedency that the eldest Sister has And therefore I ascribe this difference rather to the custome of Nations meerly founded upon the respect due to that Sex During the Marriage the Wife regularly participats of the condition of her Husband by the Civil Law and Law of Nations L. 3. C. de Dignitat Mulieres Honore maritorum erigimus genere nobilitamus and since she was to be sharer in his misfortunes the Law thought it just that she should be sharer in his Advantages And the Wife by the Canon Law is called Socia divinae humanae domus and L. Foeminae ff de Senat. it is said that Foeminis dignitatem clarissimam mariti tribuunt But yet this rule has some exceptions for though in France the wives of those who have their Dignities by Offices enjoy the same Precedency with their Husband together with a communication of his title and thus they say there Madam la Chanceliere Madam la Praesidente Yet it is not so with us who think that Offices are bestowed on Husbands upon a personal account which is not communicable to their Wives and yet in some Temporary Dignities such as that of a Knight-batchelour the Wife participates of the Husbands title and precedency Though I find by the Heraulds Records that this proceeded originally rather from Courtesie than from Law and that of old a Knights wife enjoyed onely his Honours during the Spousals nor were they to be called in Law Dame Alice or Dame Catherine c. after the Marriage was dissolved By our Law likewise If a woman have Precedency by her Birth or Descent she retains still the same notwithstanding she marry a person of inferiour dignity contrare to the Rules of the ivil Law And thus if the Heiress of a Dutchie or Earldom marry a Gentleman she has still the precedency due to a Duke or Earl albeit by the Civil Law L. 8. de Senat. it be exprest that Parentes donee Plebeiis nuptiis fuerint copulatae c. the reason whereof is as Faber observes upon that Law because it were most absurd that the Wife should have more dignitie then her Husband and thus Livius observes that Virginia daughter to a Patrician or noble Roman was debarred from the Honours due to her Birth because she had married a Plebeian And it seems indeed that he being her Head it is most unnatural that any part should be more honourable then the Head Nor can there be any thing more contrare to that superiority given both by the Law of GOD and Man to Husbands nor any means fitter to make a Wife despise her Husband than this is But I think this precedency has arisen from the Feudal Law for the wife having once a noble Fee she cannot forfeit the same by her Marriage and therefore she must retain the dignity that is annexed to it which is incommunicable to her Husband because he is not in Fie But it is observable that if the daughter of a Nobleman marry another Nobleman she will lose the precedency due to her by her Birth though she would not have losed it if she had married a Gentleman and the reason of this seems to be because by marrying a Nobleman she receives another Feudal dignity which suppresses the first I find it observed in Judge Cook lib. 12. fol. 112. that if a Baron dies having divers daughters the King may conferr upon either of them the title And thus the Lord Cromwel having died without heirs Male Burchier who married the youngest daughter was made Lord Cromwel of which we have no example in Scotland for by our Law if the title descend to Females by the Patent the eldest onely can succeed to the title but if it descend not by the Patent to Heirs Female then the King may admit neither to the title or either as he pleases After the Husbands decease the Wife did by the Civil Law enjoy her Husbands precedency during her Widowity but if she marry to a person of inferiour quality she loses that Precedency L. 8. de Senat. which holds with Us and in England And yet sometimes the King allows her the same Precedency by a Letter as he does also to the daughters of Dukes and others who have lost their Precedency by Marriage which Letters or Warrands are direct to the Heraulds Office and Registrated there And the Queen never loses her former Dignity though she marry the meanest person after the Kings death And generally all the priviledges due to the King are communicated to the Queen per L. 31. ff de Leg Augusta autem Legibus soluta non est Principes tamen eadem illi privilegia tribunut quae ipsi habent Notwithstanding whereof Lawyers think that her Bastards are not Noble as the Bastards of Kings nor does the Womb ever nobilitate The Countrey of Campaigne in France onely excepted where it is sufficient that either the Father or Mother be Noble which was allowed to the Ladies of that Countrey upon the killing of all the Nobility at a great fight Papon de Nobles num 3. By the Civil Law also a Widow living leudly loses her former dignity Arg. § Fin. in authent de restit but this holds not with us vide Bon. de Curt. de Nobilitate cap. 12. num 194. It has been doubted whether a mean woman marrying a Nobleman retains the priviledge due to her by her Husband who has been degraded by forfeiture or otherwayes and Corbin cites a decision 27. August 1698. whereby it was resolved that she retains still her former priviledge since crimes are personal which is also our Custom It has been likeways doubted abroad whether a Noblewoman marrying a Plebeian and thereby losing the Precedency due to her Birth if she marry a Gentleman in the second Marriage she will thereby recurr to her first Dignity the person be whom she lost the first Dignity being dead And it was found that she will not for in Law that which is once extinct does not revive and therefore Women in such cases take Letters of Restitution as they call them or procure a warrand from the King for that effect as the custom is with us ut interveniet Principis restitutio quae plebecitatis maculam abstergat Traitte de la noblesse pag. 324. But there would be no place for this question here since with us a Noblewoman would not lose her Precedency by marrying a Plebeian but the doubt behoov'd to be thus stated with us viz. Whether a Noblewoman marrying a Nobleman of an inferiour degree would recover her first dignity she marrying thereafter a Gentleman Or whether a Knight-Baronets Lady marrying a Plebeian could thereafter recover her dignity if she marry a Gentleman For I conceive a Knight-baronets Lady does not like a Noblewoman retain her Precedency when she marries a person of inferiour quality and I think neither of them would recover their former dignity without a special Warrand I find that the Commissioners appointed to regulate Queen Anns Funerals did
upon the 20. of May 1619. declare That the Ladies of the Privy Chamber should in time of mourning take their places as if the Queen were living till the Funerals were ended and that the Queens Chamberers should for the present Funeral go before Countesses women without prejudice to Countesses women at any time thereafter It is fit to observe That the Wives and Daughters of all Dukes Marquesses Earles c. do take the same place that the Husbands and Sons do conform to the Precedency formerly exprest pag. 35. And I find in the Heraulds Office of England an establishment settled thus amongst women by Iasper Duke of Bedford and other Noblemen by warrand from Henry the fourth The Wives of Dukes of the Blood Royall The Wives of other Dukes The Wives of the eldest Sons of Dukes of the Blood Royal. The Daughters of Dukes of the Blood Royal. The Wives of Marquesses The Wives of the eldest Sons of Dukes The Daughters of Dukes Countesses The Wives of the eldest Sons of Marquesses The Daughters of Marquesses The Wives of the younger Sons of Dukes The Wives of the eldest Sons of Earles The Daughters of Earles The Wives of Viscounts The Wives of the younger Sons of Marquesses The Wives of Barons that is to say our Lords The Wives of the eldest Sons of Viscounts The Daughters of Viscounts The Wives of the younger Sons of Earles The Wives of the eldest Sons of Barons or Lords The Daughters of Barons The Wives of Knight-bannerets The Wives of the younger Sons of Lords The Wives of Knight-batchelours The Wives of the eldest Sons of Knights-bannerets The Daughters of Bannerets The Wives of the eldest Sons of Knight-batchelours The Daughters of Knight-batchelours The Queens Maids of Honour The Wives of the younger Sons of Banerets The Wives of the younger Sons of Knight-batchelours The Wives of Esqueirs The Wives of Gentlemen The Daughters of Esquiers The Daughters of Gentlemen The Wives of Citizens The Wives of Burgesses From all which it is to be observed that the wife of the eldest Son of any degree takes place before the Daughter of that same degree and both of them take place of the younger Sons wife of the preceeding degree Thus the Lady of the eldest Son of a Marquess preceeds the Daughter of a Marquess and both preceed the Ladies of Dukes younger Sons Item the Wife of the next degree as a Countess preceeds the Lady of the eldest Son of the preceeding degree as of a Marquess and the Daughter of a Marquess 3 o. This holds not only in comparing degrees amongst themselves but also in comparing Families of the same degree amongst themselves as for instance though the Marquess of Dowglas Lady would give place to the Marquess of Huntlys Lady yet the Wife of the Marquess of Dowglas eldest Son would take place from the Marquess of Huntlys Daughter 4 o. Though of old with us in Scotland the Wives of Lords did contend that they had the Precedency from the Daughters of Earles Yet since that Letter written by King Charles the first at his Coronation we follow the custome of England in preferring the Earles Daughter who takes place immediately after her eldest Brothers wife 5 o. Though the Daughter of a Marquess gives place to the wives of the eldest Sons of all Marquesses yet if that Daughter be an Heiress and the Daughter of an elder Marquess then she takes place from the wives of the eldest Sons of all younger Marquesses as Segar observes pag. 240. It is likewise observable that since this Ranking under Henry the fourth there are several new additions For after the wives of Lords eldest Sons and Lords Daughters are Ranked the Wives of Privy Counsellours and Judges Wives of the younger Sons of Viscounts and of Lords or Barons the Wives of Baronets the Wives of Bannerets the wives of the Knights of the Bath and the Wives of Knights-batchelours c. as in the former List. Some considerable Questions concerning Precedency Resolved QVESTION I. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be Considered or what they were formerly To which it is answered with this Distinction viz. Either the Kingdom or other places betwixt which Competitions are Stated remain the same that they were in their Substantials and then the former Precedency is still continued as for instance Though Rome whilst it was a Common-wealth did sometimes admit of a Dictator who had indeed the power of a King yet they remained still the same Common-wealth and therefore being the same in substantials they ought to have the same Degree of Precedency continued Or when two or three Kingdoms are without any alteration United in one as the Kingdoms of Scotland and England were United into the Kingdom of Great Britain under Kings in the same Race who succeeded to both as is fully Demonstrated by Alb. Gentil pag. 82. and this is likewise clear from L. proponebatur ff de Iudiciis l. 24. ff de Legat. 1. But where there is a substantial alteration called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there the former Condition is not considered but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or present condition of the places in Competition is that which ought to be considered And thus when a Kingdom comes to be Conquer'd by a Stranger and by a Strange and Forreign Nation there the State of the Kingdom is absolutely Innovated especially if the Laws of the State be altered And therefore the French Lawyers are of Opinion that the Precedency of England ought onely to be Computed from William the Conquerour Because at that time a Stranger and a Strange Nation did conquer the said Kingdom and the Fundamental Laws of it were much Innovat and if this be not an Alteration none can be For the Antiquity of Land cannot give Precedency for all Land was Created together and there are few Nations so Conquest as that the former people do not remain so that there can be no Precedency upon that account though some who are extravagant in their Zeal for their Countrey doe Argue its Precedency from the first Ages of the World as Vasquius does that of the Spanish Empire in deryving it from Tubal Cain praefatio in Contravers Illust. QVESTION II. Whether a Kingdom becoming a Common-wealth or a Common-wealth a Kingdom does their former Precedency remain This Question has two Branches wherein the Difficulties differ The first is Whether that Town or Place which was a Republick having become a Monarchy or Principality ought it to Retain the Precedency due to the former Common-wealth And that it ought to Retain the same Precedency may be Argued Because when one thing is surrogat in the place of another that which is surrogat ought to have the same priviledge with that in whose place it is surrogat surrogatum subit naturam surrogati But so it is that the subsequent Principality is surrogat in place of the former Common-wealth and
in this Point For some have been of Opinion that those that are born before the Dignity was attained cannot pretend to the Precedency due to the Father for he cannot be said say they to be the Son of a King or Marquess whom a King or Marquess did not beget And since those who are born before a Crime is committed loose not their Dignity by the Fathers committing of the Crime So by the Rule of Contraries he who was Born before his Father was Advanced to a Dignity ought not to participat of that Dignity This they found likewise upon express Laws L. si Senatus Cod. de Dignitat L. Imperalis Cod. de Nupt. and thus Darius was preferred to be King of the Persians to Artabazanes Others do more justly conclude that these are to be Preferred though Born before the Dignity was obtained For if he who was Born in that Condition can be called the Kings Son he must be the Kings eldest Son And it were very absurd that the Father should be Noble and the Son not And if a King had but one Son he could not be King if this were allowed and this is most clear L. Senatoris Filium ff de Senat. where it is said That he is aswell to be called the Son of a Senator who was Begot before the Father was a Senator as he who was Begot after And though this be true as to Succession and as to the Degree of Nobility in general yet many Lawyers are of Opinion that they do not attain to so eminent a Degree of Nobility as if they had been Born after the Father attained to his Nobility For by the former Law si Senator natus ex illustri ante Dignitatem adeptam est clarissimus solum natus postea illustris Others there are who say That these who were Born before may succeed to Honours which descended from old Predecessors but those which were acquired in the Fathers own time should onely descend to such as were Born after these Honors were acquired But now generally in Europe and particularly with Us even those who were Born before the Father attained to any Dignity do participat of his Dignity as if they had been born after the same was acquired in all cases QVESTION XIV Whether ought a Son who is in publick Imployment and Dignified to Preceed a Father who is not It is answered That a Son being in publick Imployment ought to preceed a Father who is not And thus Fabius Maximus commanded his Father to light down from his horse when he was to meet him and was praised for mantaining the Dignity of the Roman Empire in this case And the Son in this case is not a private person but Represenrs the Prince or Common-wealth who are to be preferred to any person and therefore Laurentius Celsi was justly taxed at Venice because he would not meet his Son when he was newly made Duke of Venice least by being discovered before him he should lessen the Perogative of a Father But it may be doubted Whether though this hold in Employments it ought to hold in Titles since in these the Son Represents not the Common-wealth And therefore in these cases the Laws of Nature ought to prevail above the Laws of Honour especially if there be none present but Father and Son But if there be a third person present who will take the place from the Father but not from the Son then the Son must preceed the Father because though he yeeld to his Father yet he should not yeeld to a third Party And it is a general Rule in matters of Precedency that I must preceed you if I preceed him who preceeds you which is not unlike that Maxime used in other parts of Law qui vincit vincentem me vincit me QVESTION XV. Whether may he who has the Survivance of Imployment challenge any Precedency upon that Account To this it is answered That he cannot Claim any Precedency For though there be there the hope of Succession and that the person to succeed be in actu proximo and that likewise it may seem that he is advanced to a Dignity and so ought to have a Precedency suteable to it and that it may likewise seem fit for the Interest of the Commonwealth that these should be Respected and Preferred who are marked out for the Service of the Common-wealth Yet Law nor Custom have given them no Precedency for since they have actually no Dignity nor Power they ought to have no actual Precedency And thus it was found by the Parliaments of Paris and Tholows in anno 1551. 1560. that these who had Survivances were onely to be preferred according to the dates of their actual Admission And so these who were Admitted to be Councellours or Judges after they got their Survivance ought to have the Precedency from them if they did actually administrate before them vid. Maynerd Notabil quest cap. 72. Math. de afflict deciss Neapolitan 1. QVESTION XVI Whether does the Daughter of a Lord who would himself have been an Earl if he had lived take place from the Daughter of a younger Earl It may be alleaged that the Daughter of the Lord should not preceed because an Earles Daughter should still preceed a Lords Daughter and this Ladies Father was never an Earl nor are We to consider futur Honours in the matter of Precedency And as she would not take it in her Fathers time so neither ought she after his death And as her Father himself being a Lord though an Earles Son would not have taken place from the younger Earl so neither should the Lords daughter from the Earles daughter he being a younger Earl then that Lords Father And I find by the Heraulds Records in England that Sir Thomas Lees daughter got a Warrand from the King to take place as a Lords Daughter her Father having died before his Father the Lord Lee which proves that she could not have taken place otherwise and this is commonly receiv'd in England But yet it may be Debated That the Daughter of that Lord should have the Precedency since her Father would have been an elder Earl And though she could not take place during her Grand-fathers time who was the elder Earl yet per jus accrescendi and the right of Representation she comes after her Grand-fathers death to be the Daughter of the elder Earl for Honour is but a part of Succession and therefore as she might have right to her Fathers Succession if she have not Brothers she may by the same reason have Right to the Honours And it were very ridiculous to Argue so as that her elder Brother if she had any might take place as an Earles Grand-child and that she could not take the same place as his Sister and consequently since he would take the place of that younger Earl so should she of that younger Earles Sister or Daughter And the Reason why she comes to a higher Degree of Precedency by the death of her
it time out of mind It is fit to know that in this Isle not onely that Nobility which comes by Succession and Immemorial possession but even that which comes by priviledge and Concession can be Forfeited by the Fathers Crime and in this We differ from Warnesius opinion and therefore the Children must be rehabilitat and restored by the King But the Fathers unworthiness in exercising mean shifts and Trades does not amongst us Derogate from the Childrens Nobility as in other Nations Nor do I see any reason for the distinction used by Warnesius for all Nobility must be acknowledged to have flowed originally from the King by Concession and even that Nobility which comes by priviledge does descend upon the Children by the Kings grant to them aswell as the Father and so cannot be prejudged by any personal deed of his except in the case of a Crime against the King for that is still implyed in the Concession and it is not just that the Children of Traitours should enjoy those titles and that Nobility which might be useful to them in revenging their unjust quarrels QVESTION XXIX One having resigned a Dignity or Imployment and returning thereafter thereto whether does he who has so resigned return to his former Precedency To this it is answered That he does not but having embraced again the employment he had formerly resigned he is onely to have Precedency according to his last Reinstalment Langleus 7. Semest 8. where it is laid down as a rule that Precedency once lost is never recovered and an instance of this is given cap. ex Insinuatione 26. in a Chanon who having once renunced his Benefice and having thereafter embraced it is onely to be preferred according to the date of his last title From this last rule viz. that a Precedency once lost cannot be recovered Gothofred de Preced cap. 6. num 43. observes these Exceptions First If the person who renounced his Dignity was preferred to a Higher or more Noble in which case if he return to his first Imployment he looses not the Precedency due to it for a greater Dignity never prejudges the lesser L. 3. C. de Dignitatibus Rupanus lib. 7. cap. 27. and contains in it the lesser per eminentiam as Lawyers speak superveniens major Dignitas auget non minuit statum except the two Offices be incompatible in themselves for then the lesser is extinguisht by the greater L. si debitoris ff de fidejussor The second exception is If the person in whose favours the Resignation was made will not accept and upon his refusal the Resigner does presently return to his Precedency L. si forte ff de Offic. Presid And the reason is because the Resignation being there made in favours of another has that tacit Condition in it that if the other in whose favours it was made accept not the Resignation shall be null and this is the nature of all Resignations in favorem with us as to all Fews as Craig well observes The third Exception is If he who made the Resignation do presently repent for in that case likewise he is in the condition as if he Resigned not And thus the Law takes not advantage of Our sudden and undigested thoughts Et uxor quae mox rediit divertisse non videtur The fourth Exception given by him is If he who Resigned reserved to himself his former Precedency for which though there be several Roman decisions yet it is very debateable how far a man can by Protestation or Paction distinguish and reserve a Precedency when he has Resigned or Disponed the Imployment to which it was annexed For since the Precedency is onely due upon the account of the Imployment it would seem that he who has Resigned the Imployment cannot retain the Precedency and to do so were to retain accidens sine subjecto QVESTION XXX Whether may a Nobleman resign his Honours in favours of a third Party And if the Kings Confirmation thereupon will exclude the nearest Agnats who would else have succeeded by their right of Blood This question seems of great Importance and intricacy For it may seem that he may transfer his title in prejudice of his nearest Heirs because the title is onely a Fee and all Fews may be alienated nor is this a meer right of Blood but a priviledge bestowed by the King and consequently may be transferred by his consent Nor can their be any thing more for the interest either of the Kingdom or of Noble Families than that when the nearest Heir is unfit to succeed wanting either Means or Wit suitable to such a Dignity it should be in the power of the King and the Noble person himself to choose a fit successor Like as this was so decided in the case of Robert King of Sicily Cl. pastoral de re Iud. And many Lawyers have been of opinion that even elder Brothers might resign their right of Succession and primo-genitur in favours of the third Brother passing by the second vid. c. 1. § praeterea tit quib mod feud amit Bald. Consil. 389. But others conclude That the nearest by Blood are not prejudged by such Resignations Because this is a right flowing from the favour of Nature and Law Naturae Legis donum quod non potest auferri L. si arrogater ff § sed an ff de Adopt nor is Dignity exposable to sale or in Commerce L. Iulianus ff si quis omiss Whereas if such Resignations or transmissions were sustainable all titles might be sold and the meanest Fellow if Rich might by the favour of a Minister and the folly of the present Possessor exclude the Noblest Race And by the Feudal Law though a Vassal may denude himself yet he cannot transmit his Fee in favours of remoter Heirs to the prejudice of the nearer cap. Titius tit si de feud fuer Contravers this case is not decided with us but the King upon a Resignation from the late Earl of Caithnes in favours of Glenurchy confirmed the title in his favours but by a new Patent and without the former Precedency and discharged by a letter the next Heir to use the title till the matter should be decided by the Judge competent But I find that in England Ed. 2. granted to Edmond de Lincourt upon his Petition a Patent under the great Seal impowering him to assign his Sirname Arms and Barony But the Lord Hoe having assigned his Name Arms and Dignity without the Kings licence the deed was adjudged void in Parliament From which the Authour of Ius imaginis pag. 27. concludes first That the title of Nobility may be assigned Secondly That it cannot be assigned without the Kings licence And yet I find that in the Viscount Purbecks case it was lately found by the parliament of England that a Nobleman could not levey a fine upon his Honour in prejudice of his Heir that is to say That a Nobleman could not do any deed to the prejudice of his Honour by alienating
Opinion that they are to be preferred to the same Dignity in all promiscuous and indifferent Acts which fall in during the time of the Representation and thus Cautuccius decis 582. is of Opinion that the Bishops Viccar sent by him to hold a Synod is to have Precedency before all the Chapter not onely in the Synod it self but likwise in all other Assemblies Visits and Intertainments during his Commission But the contrare of this is mantained by Menoch Consil. 51. And in my Opinion these Doctors may be thus reconciled viz. If the Representation flow immediately from the Law as for instance If the Council should Delegat any man to be Sheriff there the person substitut would have in all cases during his Commission the same place that is due to him in whose place he was surrogat for there Surrogatum sapit naturam surrogati But if the Representation flow from the person himself whom he Represents in that case the Representative has onely the Precedency whilst he is exercising the Office or in Actions thereto relating And thus Sheriff-deputs with us have onely the Precedency due to their Constituents whilest they are exercising these Acts which relate to their Office And yet I think that those Representatives of Subjects have even in all extrinsick and indifferent Acts the Precedency due to their Constituents when they meet with others of the same Degree and thus amongst Sheriff-Deputes c. the Precedency is to be given according to the Precedency that is due to the Principal Sheriffs QVESTION XXXIX What Precedency is due to Assessors appointed for Iudges and to extraordinary Iudges I conceive that Assessors chosen by a Judge get no Precedency thereby since Subjects cannot bestow Dignities but that where the Prince names any man Assessor to a Judicature the person so named has thereby the Precedency next to the Judge to whom he is named Assessor nam est ejus umbra his shadow as the Law speaks and the shadow should follow the body And with Us when the Council names Assessors to the Justices the Assessors vote onely after the Justices And yet in France I find that Assessors take place after the President and before the other Councellours and so it was decided at Paris 1608. It may be also doubted whether Our extraordinar Lords of Session who sit with and vote after the ordinar Judges should have place after them if they were not Earles or Noblemen as by the institution they are oblieged to be but not either as that the King may not promote Gentlemen hereafter quo casn I think they would take place after the ordinar as they vote after them For these extraordinar Lords are like to these adscriptitiâ— or allecti L. 2. C. ut dignit ord servetur of whom Capitolinus in the life of Pertinax quâ—m Commodus allectionibus innumeris praetorios miscuisset senatus consultum Pertinax fecit jussitque eos qui praeturas non gessissent sed allectione accepissent post eos esse qui vere praetores fuissent QVESTION XL. Whether can the King Creat now an new Earl and Ordain him to preceed all the former Earles or any such number of them as he pleases It would seem that the King cannot For there being a Precedency acquired to the former Earles by their first Gift the King cannot by any new gift prejudge third Parties and this were in effect to Forfeit them of their Precedency Likeas it would seem that since most Earldoms were granted by erecting lands in an Earldom in favours of the Receiver that therefore the Concessions of Land and Honours are of the same Nature and that no new grant can prejudge the one more then the other But it may be urged on the Kings part that the King being the onely fountain of Honour he may do therein as he pleases except in so far as he is limited by Law And therefore since there is no Law with us limiting the King in this point he may do therein as he pleases 2 o. The King by Act of Parliament Henry the eight is limited as to this point in England so that he can grant no such Preference And therefore it may be concluded that this was formerly in his power even there and that since he is not limited here his power is here intire as to this point whereof many instances are given in answer to quest 35. and since that statute it is thought that His Majesty may ordain the last Knight to preceed all the rest formerly dubb'd and created because Knights are not exprest in that statute 3 o. We see the King in Scotland does impower Countesses to retain their former Precedency though they marry a Husband of a Rank inferiour to their first Husband And Dukes Daughters even after their Marriage to retain the Precedency due to them as Dukes Daughters 4 o. His Majesty does by new Confirmations transfer the Honours to Hiers Female though the Patents at first were onely granted to Hiers male and so by the not existing of the Hiers Male those Earles who have the next Precedency might aswell alleadge That the King could not by any new right in favours of the Hiers Female prejudge them 5 o. His Majesty does sometimes appoint any of His Officers of State to preceed other as he pleases though these may likewise alleadge that there is jus quaesitum to them by their prior Gifts 6 o. His Majesty restores the Sons of persons forfeited to their Fathers Precedency notwithstanding of the jus quaesitum by others medio tempore 7 o. The King has oblieged himself not to prefer the Knights of Nova Scotia or Knights-Baronets otherwise then according to their Creation which had been unnecssar if the King could not have preferred them by His Royal prerogative Sometimes also His Majesty confirms to the Nobility the entails of their Estates whereby they have power to name their Successour with the Precedency due to themselves which right being ordinarly ratified in Parliament uses to establish and transfer the Precedency upon the Heir or Successour so nominated But since Ratifications pass without observation and oftentimes without reading it may be doubted whether such a Ratification should prejudge even these who were Members of Parliament but much more such as were not present or such as were Created thereafter these Ratifications not being properly publick and Legistative statutes and so can bind onely such as consented QVESTION XLI Whether if the King should creat an Earl with Precedency to all other Earles during his life Or if when an Earl is Forfeited will his Lady in either of these cases retain the Precedency she formerly enjoyed during her Husbands life To which it is answered That as to the first it was expresly decided in England in the case of the Earl of Notingham that he upon the surrender of the Admirals Office being by King Iames allowed the same Precedency that belonged to Iohn Lord Moubray his predecessour That therefore his Lady should enjoy the same Precedency
the nature of those Certifications they ought to take place every where except where express Law or Decisions have restricted them And therefore since there is no Law nor Decision Declaring that Certificationss shall not be granted against Patens or Infeftments which transmit Honour they ought to be granted against these aswell as against other rights Nor is it craved that these Certifications should run against Honours transmitted via facti such as Robing and Belting and though the Pursuer be not designed by his Infeftments the first Earl yet that cannot hinder him from removing by this Certification all Writes or Evidents which may hinder him to be the first Upon which Debate the Lords refused to grant Certification against such Patents or Infeftments Courses taken by Princes and Iudges when they intend to shun the decyding of Contraversies concerning Precedency and to preserve the Rights of all the Competitors First They ordain the Competitors to preceed one another by turns and alternatively And thus the Emperour Lewis the fourth did in anno 1328. decide betwixt the Prince Palatine and the Duke of Bavaria and so the Parliament of Paris decided in anno 1616 but lest the first turn should give the Precedency that uses to be decided by lot And I find this alternation very old for the Thebans did so decide betwixt the Brother-Kings Etheocles and Polinix and Plutarch observes the same betwixt Thyestes and Attreus Secondly They use to assigne one of the Competitors a place out of all Rank as was done to the Spanish Ambassadour in the Council of Trent and is frequently done in Our Parliaments But though this preserves the Right it insinuates a Ceding And therefore the juster way is to place both so without the Benches as that neither of their seats can shew any Preference as was done at the Council of Trent betwixt the Emperours Ambassadour and the Cardinal of Trent Thirdly They use to cause them enter by several doors as was observed betwixt the Queen of France and Margaret sister to Charles the fifth as Guicciardin observes Fourthly They use round tables or to write the names of the Pretenders in a circle an example whereof we have in Gaius lib. 1. Institut and Pope Vrbane having desired the Franciscans to give him three of their number out of which he might chuse one to be Cardinal they wrote down their three names circular-ways but in this case the names should be written down exactly in the midle of the table or paper for else as Crantzius observes he whose name is next to the top of the paper has thereby some Precedency Fifthly The eldest of the Competitors is still ordained to preceed Of which Livius gives an instance lib. 42. and King Iames the sixth decided so between several Families in Scotland and particularly between the Lairds of Blair and Balthaok Sixthly Sometimes he who was first promoted to a Benefice or Office is preferred where the difference is betwixt the Offices or Benefices and thus it was decided betwixt the Sees of Rheims and Treves Sevently Sometimes also the Competitors are preferred according as they produce their Commissions as was done in the Council of Trent betwixt the Ambassadours of Portugal and Hungary and the Polonians do frequently in Competitions between Ambassadours prefer him who first enters their Territories Bodin de Repub. lib. 1. cap. 9. Eightly Sometimes also the Competitors are ordained to give their suffrage and preceed according to the respect due to the Nations and not to the persons as was decided in the Council of Constans and Basil. Ninthly It is observed that Octavius Farnesius Prince of Parma and Placentia to shun the difference of Precedency betwixt his two Towns of Parma and Placentia did write himself Duke of P. P. And King Iames the sixth to shun any debate that could have been between Scotland and England assumed the title of King of Great Britain Tenthly Some use to secure themselves against such contests by Protestations which certainly do interrupt prescription and preserve the Protesters right L. 14. § 8. ff de Relig. but in that case the protestation must be presently interposed for protestations after the deeds contraverted are ended and past are concluded to be of no value Carpzol def 22. for protestations cannot be drawn back But it has been doubted whether the person against whom the protestation is taken does prejudge himself when he does not protest in the contrar for this seems to infer an acquiescence that the protestation is just since qui tacet consentire videtur and this is the occasion why in our Judicatures when one protests the other ordinarly protests in the contrare But yet it is generally concluded that Silence in that case does not prejudge him against whom the protestation is taken since he knows that in Law the protestation secures his right Tusc. tom 6. Conclus 941. FINIS