The speciality of Officers of State being That in all Acts or Meetings which concern the State they sit as Members by Vertue of their office as in Parliaments Conventions c. where the Chamberlain and Admiral come not as such nor the Constable and Marishal if they were not Earles The Officers of State have oft contended for Precedency amongst themselves And therefore King Iames did in Privy Council upon the 17. of Iune 1617. Declare That in that and all other Parliaments none should sit as Officers of State save eight and though there should be moe of the saids Officers by Deputation Division or otherwise Yet eight onely should sit which eight he did thus Rank by Act of Council Thesaurer Privy-Seal Secretary Register Advocat Justice Clerk Thesaurer-deput Mr. of Requests And yet His Majesty having appointed Sir Archibald Atchison to be second Secretary and he having contended that his place was to be next the principal Secretary This was Opposed by the Register and Advocat founding themselves upon the said Act of Council It was answered thereto That His Majesty might notwithstanding of the said Act have as many Secretaries as he pleased and by that His Majesty was only Limited to eight Officers of State in Parliament But that notwithstanding thereof he might make use of any eight he pleased and accordingly he had made use of the Chancellor Collector and Comptroller as Officers of State in several Parliaments notwithstanding that they are none of the eight Officers mentioned in this Act Likeas K. Ia. had appointed the Lord Chancellor being a Nobleman to sit amongst the Noblemen and not as Chancellor or an Officer of State The Council did remit this Debate to the King I find that upon the 20. of February 1623. the whole matter of Precedency amongst His Majesties Officers and Counsellors is thus Stated The Lord Chancellor The Lord Thesaurer The Arch-bishop of St. Andrews The Arch-bishop of Glasgow The Earles and Viscounts according to their Ranks Bishops according to their Ranks Lord Privy Seal Lord Secretary Lord Register Lord Advocat Lord Justice Clerk Lord Thesaurer-deput The Lords of the Session according to their Admission Barrons and Gentlemen being Counsellors according to their Admission It is observable from this Act that Lords of the Session have Precedency from Privy Councellors in Scotland otherwise any Counsellor of an elder Admission would be preferred to them And yet in England Privy Councellors are preferred to all the Judges and even to the chief Justices And with Us I find no Privy Councellor take place as such from any person whatsoever which seems very strange For since the Judicatur it self is placed before the Session and that its President hath Precedency from the President of the Session that therefore its Judges ought to preceed the Judges of the Session 2 do Though the Lords of Session are Lords of Council and Session yet there being Secret Councellors gives them a greater nearness and Argues a greater Trust And in all matters of Precedency these are the Chief Topicks for Precedency 3 o. In Law Counsellours are called by the Emperour Pars Corporis nostri l. quisquis C. ad L. Iul. Majest And so to assault them was Treason and is with Us. 4 o. In France this Question betwixt the Members Magni Concilii and the Senators of the Parliament of Paris is Debated by Boerius and he prefers the Counsellours And in Sweden they have place from all the Nobility 5 o. The Lords of Privy Council have more supereminent power then the Lords of Session For they can stop the Precedor of the Justices they can Adjourn the Session they can grant Precognitions moderat punishments c. Notwithstanding of all which such Respect has Our Kings to the Lords of Session who Distribute Justice Equally to the People that they still preferred them to all the Subjects except the Lords of Parliament and their eldest Sons It has been contended by the Younger Sons of Noblemen That they ought to have Precedency from the Lords of Session Because sayes the second Son of an Earl I have Precedency from the Eldest Son of a Lord and yet he has place from the Lords of Session and it is a certain Rule in Precedency That if I preceed you I must preceed him who preceeds you And if an Earles second Son and a Lords eldest Son and a Lord of Session did meet together the Earles second Son could not preceed the Lords eldest Son except he preceeded also the Lord of Session To which nothing can be answered save that the eldest Sons of Peers being presumptive Peers and such as will be Peers It is fit that the Lords of Session who have but a Temporary Precedency should not preceed them But I find that though in England the younger Sons of the preceeding Rank take still the place from the eldest Son of the next mediat as the younger sons of Dukes from the eldest sons of Earles and the younger Sons of Marquesses from the elder Sons of Viscounts And that all the Chain of Precedency is founded upon this Gradation and that it seems that Nature has led men to this Establishment Yet the eldest Sons of Our Lords Lord Barons refuse to Cede to the second sons of Earls and it was so of old with Us and that which may be given as a Reason for this is that it is unreasonable That they who are to be Peers and to have a constant Title should Cede to such as have but a Temporary Honour But if this Reason were sufficient the younger Sons of Dukes should not preceed the eldest Sons of Lord Barons With Us the eldest Sons of Lord Barons are Design'd Masters as the Master of Rosse c. And of old the Uncles of Lords after the Death of their elder Brother though he left a Son were called Masters till the Nephew had a Son For which I know no other Reason but that because they wanted a Tittle they took this For their Father being Lord there was no Degree below to take as the elder Sons of Earles took that of Lord. And I believe that thus the word Master was given in England to meaner People when their name was not known For though the word Dominus was refused by Augustus as importing Slavery which the Romans could not bear rather then from a secret Impulse as St. Augustin sayes In respect Our SAVIOVR was then Born who was the True Master since Sueton tells That Tiberius also refused this Title yet in Complement even then such as were not known were called Domini Obvios sayes Seneca si nomen non succurrit Dominos salutamus and thereafter with the Roman Slavery this Title grew from being a Complement to be a Duty And thus the Grecian Emperour was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the eldest son 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and from this Title of Master came Meship amongst Us which was given to all such as had not a special Title as Lord Sir
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