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
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
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
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
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
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
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