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
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
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
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
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
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
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