by Leo the 3. of greater Authority amongst such as acknowledge the Pope to be no infallible Judge And whatever may be debated against other Kingdoms which were once Subject to the Roman Empyre Yet his Plea against Scotland is very ill founded since in the opinion of Scalliger and the best of Historians Scotland nor its Kings were never subject to the Roman Empyre nor conquered by them for they to defend themselves against the Scots were forced to build a Wall called Vallum Adriani which is Extant to this day as an undenyable Proof that Scotland did set Limits to the Roman Empyre And thus as Scalliger observes Romani Imperii fuit olim Scotia limes It is likewise pretended by the German Lawyers that the Emperour ought to precede all others because he is crowned with three Crowns one of Iron at Aquisgrane one of Silver at Milan and one of Gold at St. Peters Church Gloss. ad Clement 1. And since the King of the Romans who is but Emperour in hope debates with other Kings as in anno 1533. he who is actual Emperour ought to be preferred to them For the Emperour it is also pretended That in the Ottomon Court and in all other Courts the Emperours Ambassadors are still preferred and that he only is still styled your Majesty in all Adresses made to him by all other Kings as by France anno 1628. by Pole anno 1621. c. And that the Kings of Pole Sweden Denmark and others have taken Confirmations from him ab eo petierunt veniam aetatis Hering de fidejus c. 2. And yet the Kings of Britain and France may debate the precedency with him because the Empyre is but Elective whereas they are Hereditary the Empyre is a Limited but they have Absolute Monarchies vide Peregrin de jur fise tit 1. num 47. The French King debates his precedency with the King of Spain the Spaniard contending that he ought to be preferred because he is the most Catholick King and King of maniest Kingdoms and some of them are so foolish as to say That the Spainish Nation is more ancient than the French as owing their Origin to Athamaricus one of the first Governours amongst the Goths But for the French it is answered 1. That they are the most Christian Kings 2. That they are Consecrated and Anoynted 3. That Swardus was first King of that Nation in the Reign of Alexander the Great 4. That they were preferred in many General Councils to the Spaniards as in the Lateran Council anno 1215. in the Council of Constans anno 1416. and in the Council of Basil anno 1433. That the Venetians preferred the French after much Debate anno 1558. the Case being submitted by both to that Senate and Pius the IV. preferred him at Rome anno 1564. the King of Spain having appealed from the Venetian to him And though the Emperour has of late decided in favours of Spain yet that Decision is little considered because of the Relation which the Emperour has to the Spainish Crown And therefore the French King does very wisely send only Envoys and Residents to the Imperial Court lest if he sent Ambassadours the Spainiards might be preferred to his Nor was this Precedency ever acclaimed by the Spaniard till the Reign of Charles the V. who being both Emperour and King of Spain did begin this Debate which after many Contests the Spainiard has at last ceded having commanded his Ambassadour the Marquess de la Fuente to acknowledge the same to the most Christian King in Satisfaction of the Injury done to his Ambassadour in anno 1661. at London The King of Great Britain founds his Precedency to both upon 1. His being King of that Isle which was first Christian. 2. Upon his being Anointed and one of the quatuor Vncti which were before all other Kings 3. That having conquered France in the time of Henry the V. he has Right to all the Precedency which France can acclaim And to Spain the King of England was preferred in the General Councils of Pisa Constans and Basil. I find likewise in Golstad lib. 1. cap. 30. That Pope Iulius the II. decided after debate in favours of Henry the II. King of England against Ferdinand the V. Caspar Eup. thesaur polit part 3. apot 63. And therefore in the Book of Roman Ceremonies 1504. England was placed before Castil nor can it be denyed but that Charles the V. in ranking the Knights of the Golden Fleece did give the right hand to the King of England and the left to the King of Spain And though of late the Court of Rome has decided in favours of Spain yet that proceeds from the dislike that Rome had to England for its Separation and the great Esteem which dayly grows there for Spain because Spain has never indulged any who have left the Romish Church CHAP. II. Of the Precedency due to the Kings of SCOTLAND I Must here crave Leave to say That the King of Great Britain may justly claim the Precedency from all those Kings as he is properly King of Scotland For it is an uncontroverted Ground in Law That amongst those of equal Dignity he who first attained to that Dignity is to be preferred L. 1. C. de Consul Quis enim prior esse debet in eodem genere Dignitatis nisi qui prior eum adeptus est L. 1. ff de albo scribendo With which agrees the Canon Law Cap. 1. de major ob And this is declared the uncontraverted Test of Precedency by Crus de jur preced pag. 66. Menoch concil 51. Cuj ad L. 2. C. de Consul And we see that this Rule holds in all other Dignities without respect to Riches or multitude of Possessions And thus amongst Dukes or Earles in all Nations the first who attained to the Dignity is still preferred though others be much richer and have suceeded to moe Earldoms This being then the true and solid Ground of Preference I may truly subsume That the King of Scotland being equall in Dignity with the Kings of England France and Spain attained to that Dignity before either of these For our King Fergus came into Scotland 330. years before the birth of CHRIST Whereas Polydor an English Historian confesses that Egbert the first King of England did begin his Reign eight hundred years after our Saviours birth and the King of Scotland marryed the daughter of Ambrosius Aurelius who was the first King of the Britans and whose Reign preceeded the Origin of the English Kingdom As to the Monarchy of Spain and their Race of Kings they are no older than Rudolphus King of the Romans elected in the year 1273. by whom the house of Austria did rise to this Dignity As to the Kings of France who now Reign they are only descended from Hugh Capet who usurped that Throne in anno 987. And not being descended of either the Carolovingian or Merovingian Races they cannot compet with our Kings Achaius King of Scotland
having been contemporary with Charles le maigne the first of the Carolovingian Race and yet Achaius was but the 65. of our Kings and the Leagues betwixt Achaius and the said Charles are asserted not only by our Historians and the French but confessed by all Strangers To evite this Argument some Historians have of late asserted that we had no Kings before Fergus the II. and Cambden observes that the Scots were unknown till the dayes of Constantine the great which is a most unjust and groundless Calumnie since four Monastries of our Nation viz. Melrose Pluscarden Paisley and Scoon did keep constant and distinct Annals of all that past in this Nation after the Establishment of the Christian Religion which was in anno 199. and have transmitted to us what was delivered to them by the pious and remarkable Christians of those first Ages of the World who as they were eye-witnesses of what past since our Christianity so are not to be presumed to have recorded any thing of what preceeded their own age without sufficient Warrand And as it is incredible that so Sincere and Pious men would have lyed so it is not imaginable that so many Societies would have conspyred together in a whole Tract of so circumstantiat a History as ours is and there can be nothing brought to convell the Faith of so large a History but what may with the same force be urged against the whole Roman History few or none having related what is said in the Roman History besides the Romans themselves Whereas Galdus or as Tacitus names him Galgacus opposed Agricola under Domitian and that he was a Scot is clear by Lipsius Notes upon that Place Egregium membrum qualta multa in corpore hujus Orationis Galgaci Scoti But the Text makes this most clear to me for this Discourse is said to have been made ad montem Grampium which is known to be a Scottish Tract of Hills dividing the North and South of Scotland Hegesippus who lived in the dayes of Hadrian the Emperour and so an hundred and ten years before Constantine does write of the Scots as a warlike People to whose Authority Cambden can make no answer but that he contraverts the Authority of the Translation or Impression by which answer all Antiquity may be confounded and seing that Translation was the work of St. Ambrose it cannot but be above all censure Claudian does make the Scots to have Reigned in the dayes of Honorius for in his second Consulat he has Scotumque vago mucrone sequutus â—regit Hiperboreas remis audacibus undas And in another place he sayes Scotorum cumulos flevit glacialis Iernae And William of Westminster confesses That we came into Britain in the 77. year after CHRIST Beda likewise another English man makes us to have been in this Isle before the dayes of Iulius Caesar. And as it cannot be denyed that we were still subject to Monarchy so no Historian can pretend that we obeyed any Race save that which now Reigns Whereas we can condescend where the English and French were conquered by Strangers and had their Royal Line dethroned and inverted Another Ground of Precedency may be adduced for the King of Scotland from his being the undoubted Lineal Sucessour of 110. kings whereas the Lyne of France runs no higher than Hugh Capet who lived in anno 987. and did in that time dethrone the former Race The kings of Spain are only descended from the Counts of Tierstiem And the present kings of England are descended from William the Conquerour So that whatever may be pretended for the Antiquity of those kingdoms yet their kings are not so ancient as ours and Precedency ought to be given amongst Equals to the Eldest Race and not to the eldest Kingdom In such Dignities the preference must be given either according to the Antiquity of the People or Countrey or Race which Reigns there If the Countrey be considered there can be no Precedency acclaimed by any for as all countreys were created at the same time so none can know which of these kingdoms were first inhabited and that none can be preferred upon the Antiquity or Riches of their countrey is clearly determined by Lawyers Regionis Locique cui Principes praesunt ratio sic de eorum locorum praestantia veterum elogia necquicquam ad praecedentiam faciunt Gothofred de praeced cap. 3. num 30. If we consider the Antiquity of the People who are commanded though that could give Precedency to them or to any who represented them yet that ought not to give precedency to the king for principum precedentia metienda est ex sua dignitate non extra And the Learned Speronius Speronii hath proved this in a large Discourse written in the Italian Tongue but if this be considered as a ground of precedency then we ought to be preferred to the English for we are still the same People and Nation but the English are not the old Britans but are a mixture descending from Danes Saxons and French And so we being the Eldest People our King ought to have the precedency upon that account Even as our king was preferred to the late kings of Ierusalem though they commanded the people who now live in Iudea and who came in place of the ancient Iews a kingdom very ancient formerly But the Antiquity of the Race that Reigns is the ground of precedency For this reason it is that the elder brother succeeds without respect to the Greatness of Estate or Antiquity of those whom he commands And though these considerations give preference inter impares dignitate yet inter pares dignitate familia quae prior dignitatent est adepta semper praeferenda in incedendo sedendo c. Menoch consil 902. num 57. Rebuff ad l. 1. c. de consul Platea ad l. 2. c. ut dignit ordo And since it shall be proved even from Forreign Histories cited in this Chapter that we had Kings before any of the Races now Reigning in either of these our Kings ought to be preferred to them Since Christianity was established Christian Princes have been preferred according to the date of their having received the Christian Faith Gothofred de jur praeced cap. 3. num 23. Grotius de jur bel lib. 2. cap. 5. and that is the chief Ground of Precedency observed in the Court of Rome and especially in general Councils but I conceive it ought not to be a Ground of Precedency any where else since amongst Equals the Antiquity of Blood ought to be preferred to the date of Christianity Christianity rather discharging all Care for Precedency But even according to this Rule the eldest Christian Race ought to be preferred Religion having still Respect to Christian parents whereas on the other hand it is of no advantage to any person that he succeeds to an Estate which was formerly possest by Christians these having no Connection with one another and a man should by the same Rule be
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
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
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
had all the Priviledges of Subjects communicated to them without being Vassals or Subjects And thus the Pelopidae were naturalized Persians by Artaxerxes King of the Persians and allowed to enjoy all their Priviledges in remuneration of the great Services done by them to the Persians as Plutarch observes in the Life of Pelopidas And thus the Athenians communicated their Priviledges to the Rhodians and the Latins to the Romans as Livius observes lib. 25. And it is very clear that the like was done by the English to us by a Statute of St. Edward which is yet extant in a Book called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 published by William Lambert anno 1568. And Ratified by the Conquerour amongst the good Laws of that Prince as Hollenshed observes Amongst others who are to be reputed of the same Nation with the English we find the Scots mentioned in the Statute for which two Reasons are given in it quia omnés ferme Scoti proceres ex Anglis conjuges coeperunt ipsi rursus ex Scotis sic sacti sunt duo in carne una That is to say Because most of all the Scotish Nobility did take Wives of English Extraction and the English of Scotish The second Reason added in that Statute is quia simul in unum contra Danos Norwegos atrocissime pugnaverunt And it is very well known to such as understand History that untill these late and unhappy Wars occasioned by the Shires of Northumberland Westmorland and Cumberland the Scots assisted the English in all their Wars especially as that Statute sayes against the Danes and Norwegians by whom they were called by those Invaders to share in the Victory but they refused the offer and fought near two hundred Years against these Usurpers In which Wars they are said to have lost two Kings with an hundred thousand Men all which the Scots might have preveened by suffering the Danes to pass peaceably to England through their Territories And it is observable in the Histories of both Nations that the Danes were never expulsed from England till they were first beat in Scotland till at last they were forced to swear that they should never return into this Isle and in Return of which Assistance we got from England this Priviledge in the same manner that Lewis the XII communicated to us a general Naturalization in France with all the Priviledges competent to the Natives of that Kingdom when we were forced to associat with it to secure our selves against the invasions of our old friends CHAP. IV. The Debates betwixt the Kings of Pole Sweden Denmark c. and other Princes THe King of Sweden pretends to Precedencie from the other two and Nolden in his Treatise of Nobilitie chap. 9. num 107. leaves the Precedencie betwixt Sweden and Denmark to be dubious And though some prefer the Dane as a Member of the Empyre grafted therein in anno 1542. Yet others think him upon that account the less preferable because he is thereby in a manner no free and Soveraign Prince Peter King of Denmark having really become Vassal to Fredericus 1. Emperour Otto Fris. lib. 2. cap. 21. But Pontanus relates that the Emperour did upon this account give him the right hand and thereby preferred him to Sweden I find also in the Council of Basil that Ravallus Arch-bishop of Vpsale did claim Precedencie to his Master the King of Sweden from all the Christian Princes he being the true Successour of the Gothish Kings who exacted Tribute even from the Emperours and Kings of France Both Denmark and Sweden claim the Precedencie from the King of Pole as an Elective and Limited Monarch And in the Ceremonial of Rome Pole is placed after the other two And it is undenyable that Sigismund King of Swed being chosen King of Pole he did in all his papers prefer always the Title of Sweden to that of Pole The King of Pole has debated for Precedency with the King of Portugal in anno 1557. But at Rome Pope Iulius the second preferred Portugal And yet the Debate was renewed under Charles the fifth In whose Reign both their Ambassadours meeting in his Court at Church and the Ambassadour of Portugal having possest the first place the other made a sign as if he would have spoken in private with him at which the Portugal rose whereupon the Polonian run in to his seat Hottoman de Legat. lib. 3. cap. 21. The King of Hungarie contests for Precedency with the King of Pole But in the interview betwixt Maximilian the Emperour Sigismund King of Pole Vladislaus King of Hungarie and Lodowick King of Bohemia in anno 1515. the King of Pole was preferred to walk on the Emperours right hand But this Controversie being renewed at the Council of Trent They as all other Kings were ordained to take place not according to their Dignities but according to the date of the Production of their Commissions in the Council The King of Hungarie argues for the Precedency from the King of Bohemia Because amongst the Emperours Titles Hungarie is set down before Bohemia But Bohemia oppons the Golden-bull of Charles the fourth Emperour Wherein it is ordained that in all Acts which concern the Empire Bohemia shall proceed all other Kings So that it seems that the King of Hungarie ought to preceed in all things not relating to the Empire But that Bohemia is to preceed in all that relates thereto There are other Soveraigns who are not Crowned-heads Such as Savoy Mantua Florence Ferara Parma Venice who Debate also their respective Precedencies in this manner The Duke of Savoy is by Pius the fifth Declared to be the first Prince of Italy And in the Chappels of France Venice c. gets the first Sâ—â—l And as King of Cyprus pretends to be ranked amongst the Crowned-heads But it may be admir'd why the Duke of Savoy takes the Title of Royal Highness For if he be King of Cyprus he ought to have the Title of Majesty and if he be not King Royal Highness is not due to him And the Duke of Mantua did contend with him though his Competition was not sustained vid. Crus pag. 511. And though the Title of Eminencie was bestowed upon the Dutchess of Mantua by Ferdinand the second Yet that was a Complement bestowed by the Emperour rather with respect to her Sex and her Relation to the Imperial Family then to the true Dignity due to her as Dutchess of Mantua vid. Limneum Iur. pub lib. 5. cap. 14. The Duke of Florence was still preferred to the Duke of Ferara by Charles the fifth And Port. lib. 4. Resp. Juris 167. confesses That Florence was acknowledged to be first by the Emperour by Rome and by France But yet Paul the third considering that the Dutchie of Florence was onely erected in anno 1531. Whereas the Family of Est were raised to be Dukes by Paul the third 1452. and were declared Dukes of Ferara by the Emperour 1454. did therefore prefer Ferara to Florence CHAP.
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