and her Nephew Robert Or as king Edward the third in the Right of the said Crown of France determined of the Controversie betwixt Iohn Earl of Montford and Charles of Bluis for the Dukedom of Bretaigne 3. By the Confession and acknowledgement of Prelats Peers and others the Estates of Scotland subscribed by all their hands and seals in the Roll of Ragman wherein they did acknowledge the Superiority of the kings of England not only in regard of such Advantages as the sword had given him but as his original and undoubted Right Which Roll was treacherously delivered into the hands of the Scots by Roger Mortimer Earl of March in the begining of the Reign of king Edward the third 4. By the tacite Confession of the kings themselves who in their Coyns Commissions and publick Instruments assume not to themselves the Title of kings of Scotland but of Reges Scotorum or the kings of the Scots and thereby imitating that though they are kings of the Nation yet there is some Superiour Lord king Paramount as we may call him who hath the Royalty of the Land 5. By the Judgements Arrests of the Courts of England not only in the times of king Edward the first but in sometimes since For â—hen William Wallace a Scotsman by birth and the best Souldier of that Country was taken prisoner and brought to London he was adjudged to suffer Death as a Traitor which had been illegal and unrighteous judgement had he been a prisoner of War and not lookt upon by the Judges as subject to the Crown of England The like done in the case of Simeon Fraâ—â—ll another of that kingdom in the same kings Reign In like manner in the time of king Edward the third it was resolved in the Court in the Lord Beaumonts case when it was objected That one of the Witnesses was a Scot and therefore as an Alien not to give his evidence that his Testimony was to be allowed because the Scots in the Law of England did not go for Aliens And when one indicted for a Rape in the thirteenth year of Queen Elizabeths Reign desired a medietatem linguae because he was a Scots-man and so an Alien it was denyed him by the Court because the Scots were not reputed here as Aliens but as Subjects rather So also when Robert Vmsramville Lord of Kyme was summoned to the Parliament of England in the Reign of king Edward the third by the name of Robert Earl of Angus which is a Dignity in Scotland and after in a Writ against him was called by his own name of Vmsramville without any Addition of that Honour the Writ was adjudged to abate which I conceive the Learned Judges had not done if Scotland had not been reputed to be under the Vassalage of the kings of England 6. And lastly by a Charter of Lands and Arms which I have in my Custody granted by king Edward the first in the last year of his Reign to Peter Dodge of Stopworth in the Countie of Chester one of the Ancestors of my mother In which it is exprest that the said Lands and Arms were conferred upon him by that king for his eminent Services encontre son grand enemi rebel Baliol king of Scotland and Vassal of England In Answer to these Objections founded upon the Reign of Brutus I need say no more save that Cambden and the other Learned English Writers do look upon the same as a meer fiction And for proving the Crown of Scotland to hold of England there must be authentick Documents in Writ produced as has been formerly debated And this does sufficiently answer all that is said of Bellinus king Arthur c. But to refute these Fictions and to show how much of Cheat is in all these Contrivances I need only cite a passage from the Learned Aylet Sammes in his Britannia antiqua pag. 159. whose words are That which gave some Authotity to this Fiction was the use king Edward the first made of it in vindicating his Title to Scotland against the pretence of Pope Boniface and the Church of Rome who laid claim to that kingdom by ancient Right as part of St. Peters Patrimony and that Churches Demesne It appears that the Monks and Friers had a great hand in making out this Title by Brute which story was now new vampt and from all parts sent out of these shops where at first it had been forged and hammered out And this doth more evidently appear if we consider many other parts of the same Letter as it is found in the Records cited by Mr. Prin but especially that miracle of king Adelstane who in perpetuam rei memoriam to give an evident signe of his Right to Scotland with his sword struck a blow upon a Rock near Dumbar that he Cleft it at least an Elne wide As to the Homage made by king Malcome to William the Conquerour it is answered That the matter of Fact is absolutely denyed And not only do our Historians and the Historians of Forreigners mention no such submission but they do on the contrair relate That William the Conquerour having come with a Designe to conquer Scotland he was forced by Malcome king of Scotland to a Peace very Honourable and Advantagious for Scotland one Article whereof was That William the Conquerour should restore such of the English Nobility as had fled to Scotland for shelter to their Estates and Honours And how can it be imagined that Scotland being then very Unite and living under a most warlike Prince would have submitted to a king who had too much to do at home or that King Malcome would have submitted to him whom he forced to restore even the English who had Rebelled against him And as the Constitution of Vassalage requires Writ so if any such Vassalage had been acknowledged he had accepted of a Charter holding of the Conquerour as all the other Vassals did As to King Williams Homage to Henry the second it is Answered That William having been treacherously made Prisoner he was forced by a long and tedious Imprisonment to make this Homage and consequently the Homage it self was null being extorted by Force and made by a person who was not sui juris being in prison It being certain by the Laws of all Nations That Deeds done by Prisoners are null but especially in this case where the Deed was such as that it would have been null however For even the most absolute Kings are so far from being able to alienate their Kingdom or enslave it that by so doing as some say they forfeit their own Right and make the Throne void for the next Successour who is not obliged by what they have done And if any such Act as this were binding then England by the same Argument had remained a Feu of the Empyre since Richard the first their King did Homage to Henry the Emperour for England and King Iohn his brother did the like Homage to the Pope and offered to
hold England in capite of Murmelius a Sarazen King Edgar's being rowed over the Dee by Kenneth king of Scotland is taken off by the former Answer though it were true as it is not nor can it be made appear by a Chronological Computation if the Enquiry were worth our pains The great Instance founded upon the Homage made by the Baliol is as weak since it is known that King Robert the Bruce refused to do Homage to King Edward choosing rather to want a Crown then to be a Vassal for it But Iohn Baliol the other Competitor preferring his Ambition to his Native Country was therefore justly disowned by the Nobility who as Duchesne a Stranger to us observes sent Ambassadours to King Edward to show him that they did Revoke and Disown the Homage made by the Baliol and asserted their primitive Liberty And so hateful an Act was this esteemed in him that he losed the Crown by it whereas had this pretence of England been founded upon any Justice it could never have been so severly either opposed or punished But though Baliol had been a lawful King as he was not King Robert the Bruce's Title being preferable in Law yet could not the Baliol have subjected the Kingdom in Vassalage to England since by the Feudal Law a Superiour cannot superinduce or interpose another Superiour nec sine Vassalli consensu alienare jus suum directum c. 1. § ex eodem descendit de Leg. Lotharii And though some debate that by such Alienations of the Superiority the Superiour forfeits his Right yet all agree that the Alienation is null nulla irrita D. D. in cap. imperialem § praeterea de prohibit alien per Fredric Curt. p. 16. num 3. latissime Rosenth cap. 9. conclus 62. Whereas it is pretended That the Parliament of Scotland consented It is Answered That any Parliamentary Consent is altogether denyed For though we have exact Records of all our Parliaments yet there is not so much as Mention made amongst all our Statutes or Books of any Parliament held by Iohn Baliol. And albeit Prin has published all the Records which the English have upon this Subject yet he dares not so much as assert much less produce the Copy of any such Act of Parliament And certainly if there had been such an Act of Parliament not only the Records of that Parliament but that particular Act had been carefully preserved and published and that this Parliament and Statute is a meer Fiction appears not only by our own but Forreigne Historians And it is not imaginable that the greater part of the Nobility and Kingdom having immediatly disowned the Baliol for acknowledging this Subjection that they would themselves have ratified it in a free Parliament But though this were true as it is not yet there is not any Kingdom so Loyal Happy or Invincible but some few Cowards or Rogues may be found in it who may assume the name of a Parliament and disown the true Interest of the Kingdom without any Warrand from the People for that effect And I would very willingly know if England remains still Vassal to the Pope because a Monk prevailed with King Iohn to hold his Crown of him or if Portugal should not be acknowledged a free Crown because Spain did once elicite from them a National Consent by Force of Arms Or if these three or four pretended English Parliaments who acknowledged Oliver Cromwel the Usurper did settle a Legal Right upon him by their Concourse Nor did Prescription Supply here the Original illegality of that Consent for the Scots did immediatly reclame and did within much fewer years than Prescription requires restore themselves to their Liberty under the Conduct of that Glorious Prince King Robert the Bruce for whom GOD did so Miraculous things as did Convince the World how much the LORD of Hosts detasted the Bribry and Cruelty of King Edward the first Et ita res facile redeunt ad suam naturam quae mox rediit divertisse non videtur But to show how great Aversion even that Generation had for any such Submission to the English Monarchy I have set down the Copy of a Letter yet extant under all the Seals of our Nobility directed to Pope Iohn in anno 1320. Wherein they Declare that if their King should offer to submit to England they would disown him and chuse another Not that the power of Electing Kings was ever thought to Reside in our Nobility But because it was represented to them as the Opinion of all Lawyers that a King could not alienat his Kingdom or submit himself by his sole Consent to a Forreigne Prince Since by that Alienation and Submission he does Forfeit his Right to the Crown As to which Letter likewise I think fit to observe to prevent any Mistake as to the Calculation of the number of our Kings that the Writers thereof have as is usual with us numbred amongst our Kings such of the Royal Family as were for the time Regents or Viceroys The Letter follows SAnctissimo Patri in CHRISTO ac Domino Domino Ioanni Divina Providentia Sacrosanctae Romanae Vniversalis Ecclesiae summo Pontifici Filii sui humiles devoti Duncanus Comes de Fyfe Thomas Ranulphi Comes Moraviae Dominus Manniae Vallis Anandiae Patricius de Dumbar Comes Marchiae Malisius Comes de Strathern Malcolmus Comes de Levenox Willielmus Comes de Ross Magnus Comes Cathaniae Orcadiae Willielmus Comes Sutherlandiae Walterus Senescallus Scotiae Willielmus de Soules Buttelarius Scotiae Iacobus dominus de Dowglas Rogerus de Moubray David dominus de Brechine David de Grahame Ingelramus de Vmsravile Ioannes de Meneteith Custos Comitatus de Meneteith Alexander Frazer Gilbertus de Haia Constabularius Scotiae Robertus de Keith Mariscallus Scotiae Henricus de Sanctoclaro Ioannes de Grahame David de Lindesey Willielmus Olifant Patricius de Grahame Ioannes de Fenton Willielmus de Abernethie David de Weyms Willielmus de Monte fixo Fergusius de Ardrosan Eustachius de Maxwell Willielmus de Ramsay Willielmus de Monte alto Alanus de Moravia Douenaldus Campbell Ioannes Camburn Reginaldus le Chen Alexander de Seton Andreas de Lescelyne Alexander de Straton caeterique Barones Libere-tenentes ac tota Communitas Regni Scotiae omnimodam Reverentiam filiolem cum devotis pedum osculis beatorum Scimus sanctissime Pater Domine ex antiquorum Gestis Libris colligimus quod inter caeteras Nationes egregias nostra sciz Scotorum Natio multis Praeconiis fuerit insignita Quae de majori Scythia per mare Tirenum Columnas Herculis transiens in Hispania inter ferocissimos per multa temporum Curricula residens a nullis quantumcunque Barbaricis poterat alicubi subjugari Indeque veniens post mille ducentos annos a transitu populi Israelitici sibi sedes in Occidente quas nunc obtinent expulsis Britonibus Pictis omnino deletis
in their respective Robes and Crowns on their Heads Coming before the King they made their Reverence Then they were led up by the Master of Ceremonies some steps and sitting down on their Knees on Velvet Cushions the Lyon made an Harrangue both to His Majesty and to them Declaring to the Noblemen That it pleased His Majesty to promote them to that Dignity and that he desired them to Fear GOD and obey His Power Then he took their Oaths that they should obey GOD his Majesty and mantain the Religion then profest Thereafter the Lyon delivered to His Majesty the Patents and His Majesty redelivered them to the Lyon who gave them to the Noblemen In token that they should obey GOD and His Majesties Laws Afterwards the Lyon delivered His Majesty the Marquesses Coronets His Majesty redelivered them to the Lyon The Lyon put the Crowns on their Heads saying Iohn Marquess of Hamilton Earl of Arran Lord Even c. George Marquess of Huntly Earl of Enzie Lord Gordon and Badzenoch c. The same was Proclaimed furth of the windows by the Heraulds and Pursivants with sound of Trumpet Then were they conveyed to their Seats and placed above the Earles upon the Kings left Hand Trumpets sounding The Lyon desired His Majesty to Honour the Gentlemen who bare the Honours with the Honour of Knight-hood His Majesty consented The Lyon caused them sit down on their Knees at the foot of all the Stage and after he had made an Exhortation to them and received all their Oaths they holding up their Hands and promising to obey all the Injunctions The Lyon presented the Sword to His Majesty who stroke each of them therewith on the Right shoulder and Sir offered the Spur the Lyon first proclaiming their Styls and after the Heraulds and Pursivants at the windows with sound of Trumpet I find this Difference in the Creation of many Earles from what is here set down That the four Gentlemen bear the Honours thus The first the Penon the second the Standart the third Sword and Belt the fourth the Crown and lastly the Lyon bear the Patent in a Velvet bag And that the Lyon offered first to His Majesty the Sword and Belt and receiving it back put it on the Person Nobilitat As also when the King was not present and after His going to England The Ceremony was performed be His Majesties High Commissioner if there was one at the time Or otherwise a Writ was direct to the Lord Chancellor appointing him Commissioner for that Creation And then the first thing that was done after the person to be Created was brought in the Lyon gave the Patent to the Commissioner who gave it to the Register or Clerk of Council to be read And I Observe this in all Our old Creations that if the person to be Dignified was a Lord formerly he was conveyed in be two Lords and the Ceremony of the new Creation being over was conveyed to his place by two of that degree to which he was advanced The English Nobility are sometimes Created by being called in a Write to Parliament under the Designations of Earles Viscounts c. Which way is unknown to Us in Scotland though the King may introduce it at His pleasure The Precedency amongst Subjects is thus Established in both Kingdoms Dukes of the Blood Royal Other Dukes according to their Creation The Eldest Sons of Dukes of the Blood Royal Marquesses according to their Creation Dukes Eldest Sons Earles according to their Creation Marquesses Eldest Sons Dukes Younger Sons Viscounts according to their Creation Earles Eldest Sons Marquesses Younger Sons Barrons whom We call Lords Viscounts Eldest Sons Earles Younger Sons Barrons Eldest Sons Barronets Viscounts Younger Sons But the Officers in England are by Act of Parliament Henry the 8. thus Ranked Lord Chancellour Lord Thesaurer The Lord President of the Privy Council The Lord Privy Seal These four being of the Degree of a Barron or above shall sit in Parliament and all Assemblies of Council above Dukes not being of the Blood Royal. The Lord Great Chamberlain The Lord High Constable of England The Earl Marishal of England The Lord Admiral of England The Lord Great Master or Steward of the House The Lord Chamberlain of the Houshold These last Six and the Kings principle Secretary take place according to their present State So that if they be Barrons they take place above all Barrons If Earles above all Earles If Dukes above all Dukes By a Decree and Establishment under the Great Seal of England 1 o. Iacobi the following persons are thus Ranked Knights of the Garter Knights of the Privy Council The Master of the Wards and Liveries The Lord Chancellor and Under-Thesaurer of the Exchequer The Chancellor of the Dutchy The Chief Justice of the Kings Bench The Master of the Rolls The Chief Justice of the common Pleas The Chief Barron of the Exchequer The other Judges and Barrons of the degree of the Coif The Younger Sons of Viscounts The Younger Sons of Barrons The Barronets The Precedency amongst Our Nobility differs nothing from what is here set down England and We agreeing in all points since the Union of the two Kingdoms And especially since the Coronation of King Charles the first at which time he Declared he would have it so But to prevent Differences betwixt the Nobility of both Kingdoms It was Ordered That all those of the same Degree in England should in England take place from all those of the same Degree in Scotland And all those of the same Degree in Scotland should in Scotland take place of the English That is to say All the English Dukes should take place in England of all the Scots Dukes And all the Scottish Dukes in Scotland should take place of all the English Dukes which was very Just and Suetable to the Laws of Nations But as to the Ranking of Our Officers We Differ much from England For clearing whereof it is fit to know That with Us there were Officers of the Crown and Officers of State The Officers of the Crown were all Designed of Scotland as Constabularius Scotiae c. In King Malcom the II. his Parliament The Offices then Extant were The Chancellour the Justice General the Chamberlain the Steward the Constable and Marishal and they are thus Ranked and have their Respective Fees But by the Act 31. Parl. 11. Ia. 6. The Offices of the Crown are Declared to be The Thesaurer Secretar the Collector which Office is now joyned with the Thesaurers the Justice General Justice Clerk Advocat Master of Requests Clerk of Register And though these be called Officers of the Crown there I conceive they Differ not from the Officers of State And these words Officers of the Crown and Officers of State are now Equipollent Terms so far that all the Officers of State are Officers of the Crown by this Act But the High Chamberlain Constable Admiral and Marishal are Officers of the Crown but are not Officers of State
OBSERVATIONS Upon the LAWS and CUSTOMS OF NATIONS AS TO PRECEDENCY BY Sir GEORGE MACKENZIE of Rosehaugh His Majesty's Advocat in the Kingdom of SCOTLAND PETRON Hos gloria tulit Honores EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOMINI M. DC LXXX To the King May it please Your Sacred Majesty THis Book having for its subject Precedency should have for its Patron that KING from whom our Precedency flows as Rays do from the Sun And beside the nobleness of the Questions here discuss'd wherein Crowned-heads are oft-times the Clients and Honour the Prize These Discourses have the great Charms of newness and variety which do singly so delight this Age without any other advantage I know Sir that Dedications have degenerated into Panegyricks but why should I say any thing of You of whom the most of Your Subjects believe better things than the most eloquent of Your Advocats can express It being amongst the other wonders of Your life that You are the best lov'd though not the best obey'd King in Christendom the one being the effect of our Conviction and the other of Your admired Clemency And yet I might be allowed to say as much of Your Majesties merit as some others of Your Subjects having in those many occasions I had of attending You upon our publick Concerns been oftentimes both pleas'd and asham'd to find You understand my Trade that great Art of Reasoning far better than my self discovering to me the weakness of some of my Reasons and improving others But what I admir'd more was for I admire Iustice more than Wit to find Your Majesty alwayes more concern'd for Your Peoples Security than for Your own Prerogative So that if any Kingdom be happier than we it is because they understand better their own Interest and not because they have a better King Leaving then Sir this beaten path I hope all wise and just men may expect that none who owe You and Your Predecessors the Interest they have in Your Kingdoms and Parliaments because of the Titles You have bestowed upon them will be so ungrate and imprudent as to oppose You to please a Re-publican Party who would turn them out of all that Interest they have now in the Government and punish them most remarkably by levelling them with the Populace which some adore There is not a Nobleman in these Nations who has not been raised by the Royal Bounty all Preferments of the Army or long Robe being the reflex of Your Favour upon their merit and without which their greatest Parts had been at best but excellent Colours lodg'd in the dark And therefore when they get Precedency Preferments Matches or Respect for being Noblemen they ought to consider to whom they owe all this and to remember how little they signified when a Common-wealth prevailed And if any of their Creatures us'd them as some have done the Monarchy we should hear that Eloquence which is now us'd to decry the Government and Your Ministers employed in railing against the ingratitude of those their Creatures Nor is it to be feared that the Nobility and Gentry who value themselves so much upon the just descent of their Blood will bear patiently that the Royal Line should be cut or the Succession diverted from its just and royal Channel since Your descent Great Sir has the advantage over not only all Subjects but likewise over all Monarchs that we know when their Predecessors rose from among the Vulgar whereas the first thing History discovers of Yours is that they were Kings God having wrapt up Your Origin in this wonderful mysteriousness as it were to teach Your Subjects that You hold Your Imperial Crown of Him alone and immediatly and in shewing them how to reverence You has oblieged You to depend upon His Divine Majesty the only and immediat Author as well as Support of Your Power and Greatness and who has heap'd upon You so great and so remarkable mercies as may in letting Your enemies see his just indignation against them let you also see what sincere and exemplary Piety He as Your kind and omnipotent Master expects from You. I know Sir that You will allow me to own that I hate Slavery and love Property as well as any of our high pretenders But I think our Freedom and Property securer under Your Majesty whose Right cannot be shaken without the ruine of ours it being Your great interest to maintain that Law which makes so many thousands obey You in spight of their ambition and avarice And I still see that the true Proprietar is the kindest Master whereas on the other hand it is certain that they who oppose most the Government are those who did themselves cruelly oppress us under the late Vsurpers or their impenitent Children Those who being picqu'd at want or loss of Preferment are acted by revenge and malice or these who are so easily fool'd as to believe those who are such and who inveigh against Your just Power that they themselves may thereby become arbitrary many of whom are themselves greater grievances than any they exclaim against and greater judgements than any they threaten So that all we can expect is to empty our Veins and Purses for the liberty of being sold or trampled upon as formerly by such as have neither so great interest in us nor affection for us whilst You Sir generously pity what You may chastise and suffer our extravagancies to grow up to be their own punishment None of us can say that we or our predecessors have for six hundred years felt the tyrannie of any of our Kings nor can any of us deny that all our Miseries and Civil Wars have sprung from the ambition and factiousness of Subjects who design'd indeed to govern them and us which should in reason make us rather jealous of our own factiousness than of our Monarchie And therefore Sir That God may alwayes teach Your Subjects to be just to Your Merit and to remember the last Age and may make Your Ministers careful to maintain but not to stretch Your Prerogative shall be the constant and ardent Prayer of May it please Your Sacred Majesty Your Majesties most Faithfull most Humble and most Loyal Subject and Servant GEORGE MACKENZIE THE CONTENTS CHAP. I. THE Precedency of Kings and Common-wealths CHAP. II. Of the Precedency due to the Kings of Scotland CHAP. III. That the Crown of Scotland was not subject to England CHAP. IV. The debates betwixt the Kings of Pole Sweden Denmark c. and other Princes CHAP. V. The Precedencies amongst Common-wealths CHAP. VI. Of the Precedency of the Electors and the Princes of the Empyre CHAP. VII Of the Precedency of Church-men CHAP. VIII General Observations concerning the Precedency of Subjects CHAP. IX The Precedency due to Women Fourty four considerable Questions concerning Precedency Resolved Viz. Question 1. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be considered or what
by Leo the 3. of greater Authority amongst such as acknowledge the Pope to be no infallible Judge And whatever may be debated against other Kingdoms which were once Subject to the Roman Empyre Yet his Plea against Scotland is very ill founded since in the opinion of Scalliger and the best of Historians Scotland nor its Kings were never subject to the Roman Empyre nor conquered by them for they to defend themselves against the Scots were forced to build a Wall called Vallum Adriani which is Extant to this day as an undenyable Proof that Scotland did set Limits to the Roman Empyre And thus as Scalliger observes Romani Imperii fuit olim Scotia limes It is likewise pretended by the German Lawyers that the Emperour ought to precede all others because he is crowned with three Crowns one of Iron at Aquisgrane one of Silver at Milan and one of Gold at St. Peters Church Gloss. ad Clement 1. And since the King of the Romans who is but Emperour in hope debates with other Kings as in anno 1533. he who is actual Emperour ought to be preferred to them For the Emperour it is also pretended That in the Ottomon Court and in all other Courts the Emperours Ambassadors are still preferred and that he only is still styled your Majesty in all Adresses made to him by all other Kings as by France anno 1628. by Pole anno 1621. c. And that the Kings of Pole Sweden Denmark and others have taken Confirmations from him ab eo petierunt veniam aetatis Hering de fidejus c. 2. And yet the Kings of Britain and France may debate the precedency with him because the Empyre is but Elective whereas they are Hereditary the Empyre is a Limited but they have Absolute Monarchies vide Peregrin de jur fise tit 1. num 47. The French King debates his precedency with the King of Spain the Spaniard contending that he ought to be preferred because he is the most Catholick King and King of maniest Kingdoms and some of them are so foolish as to say That the Spainish Nation is more ancient than the French as owing their Origin to Athamaricus one of the first Governours amongst the Goths But for the French it is answered 1. That they are the most Christian Kings 2. That they are Consecrated and Anoynted 3. That Swardus was first King of that Nation in the Reign of Alexander the Great 4. That they were preferred in many General Councils to the Spaniards as in the Lateran Council anno 1215. in the Council of Constans anno 1416. and in the Council of Basil anno 1433. That the Venetians preferred the French after much Debate anno 1558. the Case being submitted by both to that Senate and Pius the IV. preferred him at Rome anno 1564. the King of Spain having appealed from the Venetian to him And though the Emperour has of late decided in favours of Spain yet that Decision is little considered because of the Relation which the Emperour has to the Spainish Crown And therefore the French King does very wisely send only Envoys and Residents to the Imperial Court lest if he sent Ambassadours the Spainiards might be preferred to his Nor was this Precedency ever acclaimed by the Spaniard till the Reign of Charles the V. who being both Emperour and King of Spain did begin this Debate which after many Contests the Spainiard has at last ceded having commanded his Ambassadour the Marquess de la Fuente to acknowledge the same to the most Christian King in Satisfaction of the Injury done to his Ambassadour in anno 1661. at London The King of Great Britain founds his Precedency to both upon 1. His being King of that Isle which was first Christian. 2. Upon his being Anointed and one of the quatuor Vncti which were before all other Kings 3. That having conquered France in the time of Henry the V. he has Right to all the Precedency which France can acclaim And to Spain the King of England was preferred in the General Councils of Pisa Constans and Basil. I find likewise in Golstad lib. 1. cap. 30. That Pope Iulius the II. decided after debate in favours of Henry the II. King of England against Ferdinand the V. Caspar Eup. thesaur polit part 3. apot 63. And therefore in the Book of Roman Ceremonies 1504. England was placed before Castil nor can it be denyed but that Charles the V. in ranking the Knights of the Golden Fleece did give the right hand to the King of England and the left to the King of Spain And though of late the Court of Rome has decided in favours of Spain yet that proceeds from the dislike that Rome had to England for its Separation and the great Esteem which dayly grows there for Spain because Spain has never indulged any who have left the Romish Church CHAP. II. Of the Precedency due to the Kings of SCOTLAND I Must here crave Leave to say That the King of Great Britain may justly claim the Precedency from all those Kings as he is properly King of Scotland For it is an uncontroverted Ground in Law That amongst those of equal Dignity he who first attained to that Dignity is to be preferred L. 1. C. de Consul Quis enim prior esse debet in eodem genere Dignitatis nisi qui prior eum adeptus est L. 1. ff de albo scribendo With which agrees the Canon Law Cap. 1. de major ob And this is declared the uncontraverted Test of Precedency by Crus de jur preced pag. 66. Menoch concil 51. Cuj ad L. 2. C. de Consul And we see that this Rule holds in all other Dignities without respect to Riches or multitude of Possessions And thus amongst Dukes or Earles in all Nations the first who attained to the Dignity is still preferred though others be much richer and have suceeded to moe Earldoms This being then the true and solid Ground of Preference I may truly subsume That the King of Scotland being equall in Dignity with the Kings of England France and Spain attained to that Dignity before either of these For our King Fergus came into Scotland 330. years before the birth of CHRIST Whereas Polydor an English Historian confesses that Egbert the first King of England did begin his Reign eight hundred years after our Saviours birth and the King of Scotland marryed the daughter of Ambrosius Aurelius who was the first King of the Britans and whose Reign preceeded the Origin of the English Kingdom As to the Monarchy of Spain and their Race of Kings they are no older than Rudolphus King of the Romans elected in the year 1273. by whom the house of Austria did rise to this Dignity As to the Kings of France who now Reign they are only descended from Hugh Capet who usurped that Throne in anno 987. And not being descended of either the Carolovingian or Merovingian Races they cannot compet with our Kings Achaius King of Scotland
having been contemporary with Charles le maigne the first of the Carolovingian Race and yet Achaius was but the 65. of our Kings and the Leagues betwixt Achaius and the said Charles are asserted not only by our Historians and the French but confessed by all Strangers To evite this Argument some Historians have of late asserted that we had no Kings before Fergus the II. and Cambden observes that the Scots were unknown till the dayes of Constantine the great which is a most unjust and groundless Calumnie since four Monastries of our Nation viz. Melrose Pluscarden Paisley and Scoon did keep constant and distinct Annals of all that past in this Nation after the Establishment of the Christian Religion which was in anno 199. and have transmitted to us what was delivered to them by the pious and remarkable Christians of those first Ages of the World who as they were eye-witnesses of what past since our Christianity so are not to be presumed to have recorded any thing of what preceeded their own age without sufficient Warrand And as it is incredible that so Sincere and Pious men would have lyed so it is not imaginable that so many Societies would have conspyred together in a whole Tract of so circumstantiat a History as ours is and there can be nothing brought to convell the Faith of so large a History but what may with the same force be urged against the whole Roman History few or none having related what is said in the Roman History besides the Romans themselves Whereas Galdus or as Tacitus names him Galgacus opposed Agricola under Domitian and that he was a Scot is clear by Lipsius Notes upon that Place Egregium membrum qualta multa in corpore hujus Orationis Galgaci Scoti But the Text makes this most clear to me for this Discourse is said to have been made ad montem Grampium which is known to be a Scottish Tract of Hills dividing the North and South of Scotland Hegesippus who lived in the dayes of Hadrian the Emperour and so an hundred and ten years before Constantine does write of the Scots as a warlike People to whose Authority Cambden can make no answer but that he contraverts the Authority of the Translation or Impression by which answer all Antiquity may be confounded and seing that Translation was the work of St. Ambrose it cannot but be above all censure Claudian does make the Scots to have Reigned in the dayes of Honorius for in his second Consulat he has Scotumque vago mucrone sequutus â—regit Hiperboreas remis audacibus undas And in another place he sayes Scotorum cumulos flevit glacialis Iernae And William of Westminster confesses That we came into Britain in the 77. year after CHRIST Beda likewise another English man makes us to have been in this Isle before the dayes of Iulius Caesar. And as it cannot be denyed that we were still subject to Monarchy so no Historian can pretend that we obeyed any Race save that which now Reigns Whereas we can condescend where the English and French were conquered by Strangers and had their Royal Line dethroned and inverted Another Ground of Precedency may be adduced for the King of Scotland from his being the undoubted Lineal Sucessour of 110. kings whereas the Lyne of France runs no higher than Hugh Capet who lived in anno 987. and did in that time dethrone the former Race The kings of Spain are only descended from the Counts of Tierstiem And the present kings of England are descended from William the Conquerour So that whatever may be pretended for the Antiquity of those kingdoms yet their kings are not so ancient as ours and Precedency ought to be given amongst Equals to the Eldest Race and not to the eldest Kingdom In such Dignities the preference must be given either according to the Antiquity of the People or Countrey or Race which Reigns there If the Countrey be considered there can be no Precedency acclaimed by any for as all countreys were created at the same time so none can know which of these kingdoms were first inhabited and that none can be preferred upon the Antiquity or Riches of their countrey is clearly determined by Lawyers Regionis Locique cui Principes praesunt ratio sic de eorum locorum praestantia veterum elogia necquicquam ad praecedentiam faciunt Gothofred de praeced cap. 3. num 30. If we consider the Antiquity of the People who are commanded though that could give Precedency to them or to any who represented them yet that ought not to give precedency to the king for principum precedentia metienda est ex sua dignitate non extra And the Learned Speronius Speronii hath proved this in a large Discourse written in the Italian Tongue but if this be considered as a ground of precedency then we ought to be preferred to the English for we are still the same People and Nation but the English are not the old Britans but are a mixture descending from Danes Saxons and French And so we being the Eldest People our King ought to have the precedency upon that account Even as our king was preferred to the late kings of Ierusalem though they commanded the people who now live in Iudea and who came in place of the ancient Iews a kingdom very ancient formerly But the Antiquity of the Race that Reigns is the ground of precedency For this reason it is that the elder brother succeeds without respect to the Greatness of Estate or Antiquity of those whom he commands And though these considerations give preference inter impares dignitate yet inter pares dignitate familia quae prior dignitatent est adepta semper praeferenda in incedendo sedendo c. Menoch consil 902. num 57. Rebuff ad l. 1. c. de consul Platea ad l. 2. c. ut dignit ordo And since it shall be proved even from Forreign Histories cited in this Chapter that we had Kings before any of the Races now Reigning in either of these our Kings ought to be preferred to them Since Christianity was established Christian Princes have been preferred according to the date of their having received the Christian Faith Gothofred de jur praeced cap. 3. num 23. Grotius de jur bel lib. 2. cap. 5. and that is the chief Ground of Precedency observed in the Court of Rome and especially in general Councils but I conceive it ought not to be a Ground of Precedency any where else since amongst Equals the Antiquity of Blood ought to be preferred to the date of Christianity Christianity rather discharging all Care for Precedency But even according to this Rule the eldest Christian Race ought to be preferred Religion having still Respect to Christian parents whereas on the other hand it is of no advantage to any person that he succeeds to an Estate which was formerly possest by Christians these having no Connection with one another and a man should by the same Rule be
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
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
V. The Precedencies amongst Common-Wealths IT cannot be denyed but that Kings and Crowned-heads have the Precedency from Common-wealths though they contend that they being the Freest of all men are the Noblest And being in Effect a Countrey of Kings ought to be preferred to any one King Especially since their Government is elder then that of Kings men having drawn themselves into Societies before they either submitted to Kings who assum'd that Government by Force or Elected Kings because they could not agree amongst themselves There are some Common-wealths who claim precedency as having right to Kingdoms And thus Venice claim'd the same precedency with Crown'd-heads in the Popedom of Vrban the eight and Innocent the fifth because they had right to the Kingdom of Corsica But this was denyed Genoa contended with Venice for precedency at the Coronation of the King of Cyprus 1373. but that King preferred Venice And to extinguish these Differences amongst the Common-wealths of Italy Venice is by opinion of all Lawyers preferred to all the Common-wealths of Italy Calefat de Equestr dignit n. 124. Crus de preced pag. 536. Genoa and Sienna did also contend anno 1530. at the Coronation of Charles the fifth but the Debate was then decided And yet Crus pag. 545. prefers Genoa The States General contend with Venice and all other Common-wealths as being the more powerful and being a Society of Common-wealths They pretend also to Precedency from all the Princes of the Empire as being more Independent then they and being equal to Kings Whereas these Princes are but Subjects which is delicately Debated by Besold de praeced cap. 2. But yet the present Emperour has preferred the Electors to all Ambassadours of Common-wealths by an express Ordinance related in Crus p. 545. And now Holland as having a kindness for the Empire Treats the Ambassadours of the Electors as those sent by Crowned-heads And in return of that Kindness the Electors Treat such as are sent from Holland with the same Respect Memor Ambassad pag. 523. Of old the Duke of Savoy did preceed the Common-wealth of Venice But Emanuel Philbert Duke of Savoy during the Oppression he lay under from Charles the fifth put himself under the protection of Venice and became a Son of St. Mark And thereafter as the Father behov'd to preceed the Son the Dukes of Savoy yeelded to Venice And as that Duke pretends Right to the Crown of Cyprus by the Marriage of Anne of Cyprus and the Donation of Charlot of Cyprus So Venice pretends Right to the same Crown by the Donation of Catharine Cornara Widow to Iames King of Cyprus The Difference is now thus settled That Venice shall Treat the Ambassadours of Savoy as they do these of Kings with the title of Excellency And Savoy shall allow Venice the Precedency Memor Ambassad pag. 347. Mazarin treated the Ambassadours of the Common-wealth of England as those sent from Kings Mem. Ambassad pag. 334. The Cantons of Swisse were even of late a part of the Empire But by the Treaty betwixt the Empire and the King of Swed 1648. they are declared Free States Et in possessione seu quasi possessione libertatis exemptionis ab Imperio And now their Ambassadours or Envoys take place after the Venetian and States General And albeit Nolden de Stat. Nobil Thinks that if they were called to fit with the States of the Empire upon any extraordinar Occasion they were not to be preferred to the Princes of the Empire and much less to the Electors For licet jura Principum habent passive materialiter Principes tamen non sunt formaliter active Yet other Lawyers prefer them to all the other States and Princes of the Empire except the Electors Crus pag. 556. The French King treats them with the title of Magnifiques Seigneurs And though their Deputies could not prevail with the French King in anno 1602. and 1603. to be covered when he received them Yet I conceive that now they will be received as the Ambassadours of Holland or Venice who are covered at their Reception since in anno 1646. they are acknowledged to be a Free State The Grison Ambassadours were received in anno 1627. as the Ministers sent by the Princes of the Empire and with the same Honours CHAP VI. Of the Precedency of the Electors and the Princes of the Empire AMongst the Princes of the Empire the Electors are still preferred Which Electoral Colledge though said to be Founded by the Emperour Otho the third and Pope Gregory the fifth anno 997 yet it is more probable that the said Constitution arose from the great Difficulties under which the Empyre was Sunk after the Death of Frederick the second Amongst the Electors the Ecclesiasticks are preferred to the Laicks The Ecclesiastick Electors are the Arch-bishops of Mentz Cullen and Treves whose Precedency amongst themselves was first Determined by Charles the fourth So as that the Bishop of Treves was to sit just over against the Emperour The Bishop of Mentz was to take place in all his own Dyocie and in all Germany Whereas the Arch-bishop of Cullen was to take place in all his own Dyocie and in Italy and France And of old in the Election of the Emperour the Bishop of Mentz was preferred as Arch-chancellor of Germany The Arch-bishop of Treves as Arch-Chancellour of France And the Arch-bishop of Cullen as Arch-chancellour of Italy Which Order was confirmed by Frederick the 1. anno 1158. The Secular Electors are Ranked thus by the Golden-bull of Charles the fourth The Duke of Saxony carries the Sword immediately in all Processions before the Emperour The Count-Palatin the Imperial Aple walking on the Emperours Right hand The Marquess of Brandenburg the Scepter on the Left hand And the King of Bohemia was to follow him immediately But when they sit at any Solemnity by the same Bull The King of Bohemia being a Crowned-head was to sit first upon the Emperours Right hand after the King of the Romans and the Arch-bishops of Mentz and Cullen And upon the Left after the Ecclesiastick Electors the Duke of Saxony had the first place and the Marquess of Brandenburg the second But yet I find Beutherus and other German Lawyers contend from old Manuscripts That at first Brandenburg had the Precedency from the Electors Palatin and Saxony The Duke of Bavaria did of old Contend with the Duke of Saxony in anno 1521. and their Debates continued by protestations for many years And with the Elector Palatin till the Emperour Lewis the fourth Ordained the Palatin and Bavaria to preceed one another alternately Though since the late Waries of Germany the Elector Palatin having Usurped the Crown of Bohemia the Duke of Bavaria was made the first Elector in his place the Elector Palatin being now the last of the Electors It is also observable That if any of the Electors themselves be present they are preferred to the Ambassadours and Representatives of all the absent Electors as was Decided in anno
Scotland counterchanged charged with an inescutcheon of the Royal Arms of Scotland supported on the dexter by the Royal Unicorn and on the sinister by a Savage or Wild-man proper and for the crest a branch of Laurel and a Thistle issuing from two hands conjoyned the one being armed the other naked with this Ditto Munit haec altera vincit And that they and their Heirs Male should in all time coming have place in all His Majesties and His Successours Armies in the middle Battel near and about the Royal Standard for defence thereof And that they and their Heirs Male may have two Attenders of the Body for bearing up the Pale one principal Mourner and four Assistants at their Funerals And that they should be always Called Intituled and Designed be the name and title of Baronet and that in all Scottish Speeches and writings the addition of Sir and in all other discourses and writings a word signifying the same should be preponed to their names and other titles and that the stile and title of Baronet should be postponed and subjoyned thereto in all Letters-patents and other writes whatsomever as a necessar addition of Dignity and that each of them should be intituled Sir A. B. Baronet and his and his Sons Wives should enjoy the stile title and appellation of Lady Madam and Dame respectively according to the usual phrase in speaking and writing And also His Majesty did thereby promise That the number of the Baronets aswell in Scotland as the new Colony of Nova Scotia should never exceed the number of 150. albeit this number is at present somewhat augmented and did likewise Declare That He nor His Successours should never Create nor Erect in time coming any other Dignity Degree Stile Name Order Title or State nor should give the Priority or Precedency to any Person or Persons under the Stile Degree and Dignity of a Lord of Parliament of Scotland which should be or should be presumed to be Higher Superiour or Equal to that of Baronet And that the Baronet should have liberty to take place before any such who should happen to be created of any such degree or order and that their Wives Sons Daughters and Sons Wives should have their places accordingly And that if any question or doubt should arise anent their places and prerogatives the same should be decided and judged according to these Laws and Customs by which other degrees of Heritable Dignities have their priviledges cognosced and determined And finally that none should be created Baronet either of Scotland or Nova Scotia till he had first fulfilled the conditions designed by His Majesty for the good and increass of that Plantation and until he had certified the same to the King by His Majesties Lieutenant there These Patents were ratified in Parliament and were always of this form till the selling of Nova Scotia to the French after which time they were made much shorter and granted in general terms with all the Priviledges Precedencies c. of the former Baronets And in the year 1629. His Majesty did allow these Baronets a particular cognisance which will be best known by the coppy of the following Letter direct be his Majesty K. Charles the first to the Privy Council here RIght Trusty and right well beloved Cousin and Counsellour Right trusty and well beloved Cousins and Counsellours and right trusty and well beloved Counsellours We greet you well Whereas upon good consideration and for the better advancement of the Plantation of New-Scotland which may much import the good of Our Service and the Honour and Benefit of that Our ancient Kingdom Our Royal Father did intend and We since have erected the Order and Title of Baronet in Our said ancient Kingdom which We have since established and conferred the same on diverse Gentlemen of good quality And seing Our trusty and well beloved Counsellor Sir William Alexander Knight Our principal Secretary of that Our ancient Kingdom of Scotland and Our Lieutenant of New-Scotland who these many years bygon hath been at great charges for the discovery thereof hath now in end a Colony there where his Son Sir William is now resident And We being most willing to afford all the possible means of encouragement that conveniently We can to the Baronets of that Our ancient Kingdom for the furtherance of so good a work And to the effect they may be honoured and have place in all respects according to their Patents from Us We have been pleased to Authorize and Allow as by these presents for Us and Our Successours We Authorize and Allow the said Lieutenant and Baronets and every one of them and their Heirs Male to wear and carry about their Necks in all time coming an Orange tannie silk ribbon whereon shall hang pendant in a Scutcheon argent a saltir azur thereon an Inscutcheon of the Arms of Scotland with an Imperial Crown above the Scutcheon and incirled with this motto Fax Mentis Honestae Gloria Which cognisance Our said present Lieutenant shall deliver now to them from Us that they may be the better known and distinguished from other persons And that none pretend ignorance of the Respect due unto them Our Pleasure therefore is that by open proclamation at the mercat-cross of Edinburgh and of all other head Burghs of Our Kingdom and such other places as you shall think necessar you cause intimate Our Royal pleasure and intention herein to all Our Subjects And if any person out of neglect or contempt shall presume to take place or precedency of the said Baronets their Wives or Children which is due unto them by their Patents or to wear their Cognisance We will that upon notice thereof given to you you cause punish such offenders by Fining or imprisoning them as you shall think sitting that others may be terrified from attempting the like And We Ordain that from time to time as occasion of granting or renewing their Patents or their Heirs succeeding to the dignity shall offer that the said power to them to carry the said Ribbon and Cognisance shall be therein particularly granted and inserted And We likewise Ordain thir presents to be insert and Registrate in the books of Our Council and Exchequer and that you cause Registrate the same in the books of the Lyon King at Arms and Heraulds there to remain ad futuram rei memoriam And that all parties having intress may have authentick copies and extracts thereof And for your so doing these Our Letters shall be unto you and every one of you from time to time your sufficient Warrand and Discharge in that behalf Given at Our Court at Whitehall the 17. of November 1629. years The order of Baronet in England was erected by King Iames the sixth for advancing the plantation of Vlster in Ireland and these Knights have Priviledges and Precedencie much like to those above set down and there being a Contraversy for Precedency betwixt them and the younger sons of Viscounts and Barons managed in
upon the 20. of May 1619. declare That the Ladies of the Privy Chamber should in time of mourning take their places as if the Queen were living till the Funerals were ended and that the Queens Chamberers should for the present Funeral go before Countesses women without prejudice to Countesses women at any time thereafter It is fit to observe That the Wives and Daughters of all Dukes Marquesses Earles c. do take the same place that the Husbands and Sons do conform to the Precedency formerly exprest pag. 35. And I find in the Heraulds Office of England an establishment settled thus amongst women by Iasper Duke of Bedford and other Noblemen by warrand from Henry the fourth The Wives of Dukes of the Blood Royall The Wives of other Dukes The Wives of the eldest Sons of Dukes of the Blood Royal. The Daughters of Dukes of the Blood Royal. The Wives of Marquesses The Wives of the eldest Sons of Dukes The Daughters of Dukes Countesses The Wives of the eldest Sons of Marquesses The Daughters of Marquesses The Wives of the younger Sons of Dukes The Wives of the eldest Sons of Earles The Daughters of Earles The Wives of Viscounts The Wives of the younger Sons of Marquesses The Wives of Barons that is to say our Lords The Wives of the eldest Sons of Viscounts The Daughters of Viscounts The Wives of the younger Sons of Earles The Wives of the eldest Sons of Barons or Lords The Daughters of Barons The Wives of Knight-bannerets The Wives of the younger Sons of Lords The Wives of Knight-batchelours The Wives of the eldest Sons of Knights-bannerets The Daughters of Bannerets The Wives of the eldest Sons of Knight-batchelours The Daughters of Knight-batchelours The Queens Maids of Honour The Wives of the younger Sons of Banerets The Wives of the younger Sons of Knight-batchelours The Wives of Esqueirs The Wives of Gentlemen The Daughters of Esquiers The Daughters of Gentlemen The Wives of Citizens The Wives of Burgesses From all which it is to be observed that the wife of the eldest Son of any degree takes place before the Daughter of that same degree and both of them take place of the younger Sons wife of the preceeding degree Thus the Lady of the eldest Son of a Marquess preceeds the Daughter of a Marquess and both preceed the Ladies of Dukes younger Sons Item the Wife of the next degree as a Countess preceeds the Lady of the eldest Son of the preceeding degree as of a Marquess and the Daughter of a Marquess 3 o. This holds not only in comparing degrees amongst themselves but also in comparing Families of the same degree amongst themselves as for instance though the Marquess of Dowglas Lady would give place to the Marquess of Huntlys Lady yet the Wife of the Marquess of Dowglas eldest Son would take place from the Marquess of Huntlys Daughter 4 o. Though of old with us in Scotland the Wives of Lords did contend that they had the Precedency from the Daughters of Earles Yet since that Letter written by King Charles the first at his Coronation we follow the custome of England in preferring the Earles Daughter who takes place immediately after her eldest Brothers wife 5 o. Though the Daughter of a Marquess gives place to the wives of the eldest Sons of all Marquesses yet if that Daughter be an Heiress and the Daughter of an elder Marquess then she takes place from the wives of the eldest Sons of all younger Marquesses as Segar observes pag. 240. It is likewise observable that since this Ranking under Henry the fourth there are several new additions For after the wives of Lords eldest Sons and Lords Daughters are Ranked the Wives of Privy Counsellours and Judges Wives of the younger Sons of Viscounts and of Lords or Barons the Wives of Baronets the Wives of Bannerets the wives of the Knights of the Bath and the Wives of Knights-batchelours c. as in the former List. Some considerable Questions concerning Precedency Resolved QVESTION I. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be Considered or what they were formerly To which it is answered with this Distinction viz. Either the Kingdom or other places betwixt which Competitions are Stated remain the same that they were in their Substantials and then the former Precedency is still continued as for instance Though Rome whilst it was a Common-wealth did sometimes admit of a Dictator who had indeed the power of a King yet they remained still the same Common-wealth and therefore being the same in substantials they ought to have the same Degree of Precedency continued Or when two or three Kingdoms are without any alteration United in one as the Kingdoms of Scotland and England were United into the Kingdom of Great Britain under Kings in the same Race who succeeded to both as is fully Demonstrated by Alb. Gentil pag. 82. and this is likewise clear from L. proponebatur ff de Iudiciis l. 24. ff de Legat. 1. But where there is a substantial alteration called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there the former Condition is not considered but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or present condition of the places in Competition is that which ought to be considered And thus when a Kingdom comes to be Conquer'd by a Stranger and by a Strange and Forreign Nation there the State of the Kingdom is absolutely Innovated especially if the Laws of the State be altered And therefore the French Lawyers are of Opinion that the Precedency of England ought onely to be Computed from William the Conquerour Because at that time a Stranger and a Strange Nation did conquer the said Kingdom and the Fundamental Laws of it were much Innovat and if this be not an Alteration none can be For the Antiquity of Land cannot give Precedency for all Land was Created together and there are few Nations so Conquest as that the former people do not remain so that there can be no Precedency upon that account though some who are extravagant in their Zeal for their Countrey doe Argue its Precedency from the first Ages of the World as Vasquius does that of the Spanish Empire in deryving it from Tubal Cain praefatio in Contravers Illust. QVESTION II. Whether a Kingdom becoming a Common-wealth or a Common-wealth a Kingdom does their former Precedency remain This Question has two Branches wherein the Difficulties differ The first is Whether that Town or Place which was a Republick having become a Monarchy or Principality ought it to Retain the Precedency due to the former Common-wealth And that it ought to Retain the same Precedency may be Argued Because when one thing is surrogat in the place of another that which is surrogat ought to have the same priviledge with that in whose place it is surrogat surrogatum subit naturam surrogati But so it is that the subsequent Principality is surrogat in place of the former Common-wealth and
Blood it seems to have no Dependance upon Riches and as the having of Riches gives not Nobility so neither should the want of them take it away Likewise this is very express by the Roman Law Lege humilem Cod. de Incest nupt where it is said humilem abjectam foeminam non eam esse quae licet pauper sit ab ingenuis tamen parentibus nata est And that this hath been very anciently the opinion of the World is clear from that of Euripides apud Stob. serm 86. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But I find that Cook 4. inst folio 355. and the Authour of Ius Imaginis pag. 25. conclude that Poverty is a good cause for the Degrading of a Peer an instance whereof they give in George Nevil Duke of Bedford who was Degraded by Act of Parl. 17. Edward the fourth of which Act this is the tenour And forasmuch as it is openly known that the said George hath not nor by Inheritance may have any livelyhood to support the said Name Estate and Dignity or any name of Estate as oftentimes it is seen that when any Lord is called to high Estate and have not livelyhood convenient to support the same Dignity it induceth great Poverty and Indigence and causeth oftentimes Extortion Embracery and Maintenance to be had to the great trouble of such Countries where such Estate shall happen to be inhabited Wherefore the King by Advice of his Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same Ordaineth Establisheth and Enacteth that from henceforth the same Erection and making of the same Duke and all the names of Dignity to the said George or to John Nevil his Father be from henceforth void and of none effect c. From which Act three things may be well observed First That the said Duke had not any Possessions to support his Dignity yet his Dignity could not be taken away from him without an Act of Parliament Secondly The inconveniencies appear where a great Estate or Dignity is not accompanied with a livelyhood Thirdly This is a good Cause to take away the Dignity by Parliament For reconciling which opinions it seems indeed that though a person who is noble by Birth should fall into poverty yet that poverty can no more Degrade him from his Nobility then it can taint his Blood but though it cannot root out that Noble Character from his Blood and make him no Gentleman yet it seems a good reason why he may be Degraded from being a Peer of the Realm For the being a Peer is no necessar effect of Blood but a mark of the Royal bounty bestowed for the better Government and Advantage of the Kingdom Earles being by their Original Praepositi Comitatus or Commanders of the County and Counties or Shires are so called because they are the Governments of a Count or Earl And therefore when the King and Parliament find that they are not fit to bear this quality they may justly take away that Honour that was given nor can there be any thing so inconvenient as that these should represent the Kingdom in its greatest concerns and burden it with with Taxes who have no interest in the one nor can bear any share in the other And that these Feudal Dignities and markes of Nobility may be taken off by the loss of the Fews is clear by Bartolus in L. inam Cod. de Dignitatibus and that this is the custome of Sicily is clear Afflictus Col. non in 6. not It may likewise seem reasonable that as the King onely can bestow Nobility so that it should be onely proper for him to Degrade And since he may Create any Nobleman though he be poor so he may continue him so notwithstanding of his Poverty specially seing the being a Peer is but to be the Princes Counsellour nor can any judge who are fit to be his Counsellours but himself nor is the Parliament any thing but his great Council But since this Degradation is a kind of Forfeitur it seems that the Parliament onely can be Judges therein since the King does not use to Forfeit by his own Authority And though the former Arguments may prove that a Peer cannot be Degraded for poverty except the King pleases which is certainly true since no Act of Parliament can pass without his Royal consent yet they prove not that the King may Degrade a Nobleman by his own Authority except he may Judge all cases immediately by himself QVESTION XXVII Whether is a Patent never made use of by the Father valid after his death It is answered That though the Patent being granted to such a man therein Designed seems to die with him and that the Father dying with this quality cannot transmit it to his Son yet it is certain that the Patent is valid to his posterity For except where it was Designed to be personal it is conceived in Favours of a man and his Heirs and thus it was judged in the cause of Quesnel Advocat in Rowan 4. May 1623. vid. La Rocque cap. 67. QVESTION XXVIII Whether if the Father use any low or base Trade which Derogates from Nobility will his Children and Descendents loose it thereby In answering to this case We must distinguish betwixt such as derive their Nobility from their Fathers onely and some think that in that case the misbehaviour of the Father does extinguish the Nobility of the Race and that the Descendants are no more Noble except they be restored by an express Gift Or otherwise the Nobility of the Race has descended from a long Series of Predecessours and then the Fathers Deed does not prejudge them since they do not owe their Nobility to him and the Prince having Nobilitat such a man and his Posterity they owe their Nobility to the King and derive it from him equally with the Father which Distinction I find in the Learned Faber Cod. L. 9. T. 28. Def. 1. But it seems that by this last reason Even that Nobility which is begun in the Father cannot be lost by his fault And therefore some Lawyers have been of Opinion that that Nobility which descends by immemorial possession and which flows not from a particular priviledge and Concession can never be taken away by the Fathers baseness or crime Warnaesius tom 1. responsorum de Iure Pontificio Consil. 20. num 7. and thus we find in the Roman Story that Marcus Emilius Scaurus was found not to have lost his Nobility by his Fathers becoming a bearer of Coals Curt. conjectur jur civil lib. 2. cap. 20. and others think that as it is sufficient for acquiring Nobility that the Grand-father and Father have been repute Noble So by the rule of Contraries it is sufficient for extinguishing Nobility that the Father and Grand-father have been repute Ignoble And though the rights of Blood cannot be lost by prescription yet Nobility may be lost as all other priviledges can by not exersing or owning
it time out of mind It is fit to know that in this Isle not onely that Nobility which comes by Succession and Immemorial possession but even that which comes by priviledge and Concession can be Forfeited by the Fathers Crime and in this We differ from Warnesius opinion and therefore the Children must be rehabilitat and restored by the King But the Fathers unworthiness in exercising mean shifts and Trades does not amongst us Derogate from the Childrens Nobility as in other Nations Nor do I see any reason for the distinction used by Warnesius for all Nobility must be acknowledged to have flowed originally from the King by Concession and even that Nobility which comes by priviledge does descend upon the Children by the Kings grant to them aswell as the Father and so cannot be prejudged by any personal deed of his except in the case of a Crime against the King for that is still implyed in the Concession and it is not just that the Children of Traitours should enjoy those titles and that Nobility which might be useful to them in revenging their unjust quarrels QVESTION XXIX One having resigned a Dignity or Imployment and returning thereafter thereto whether does he who has so resigned return to his former Precedency To this it is answered That he does not but having embraced again the employment he had formerly resigned he is onely to have Precedency according to his last Reinstalment Langleus 7. Semest 8. where it is laid down as a rule that Precedency once lost is never recovered and an instance of this is given cap. ex Insinuatione 26. in a Chanon who having once renunced his Benefice and having thereafter embraced it is onely to be preferred according to the date of his last title From this last rule viz. that a Precedency once lost cannot be recovered Gothofred de Preced cap. 6. num 43. observes these Exceptions First If the person who renounced his Dignity was preferred to a Higher or more Noble in which case if he return to his first Imployment he looses not the Precedency due to it for a greater Dignity never prejudges the lesser L. 3. C. de Dignitatibus Rupanus lib. 7. cap. 27. and contains in it the lesser per eminentiam as Lawyers speak superveniens major Dignitas auget non minuit statum except the two Offices be incompatible in themselves for then the lesser is extinguisht by the greater L. si debitoris ff de fidejussor The second exception is If the person in whose favours the Resignation was made will not accept and upon his refusal the Resigner does presently return to his Precedency L. si forte ff de Offic. Presid And the reason is because the Resignation being there made in favours of another has that tacit Condition in it that if the other in whose favours it was made accept not the Resignation shall be null and this is the nature of all Resignations in favorem with us as to all Fews as Craig well observes The third Exception is If he who made the Resignation do presently repent for in that case likewise he is in the condition as if he Resigned not And thus the Law takes not advantage of Our sudden and undigested thoughts Et uxor quae mox rediit divertisse non videtur The fourth Exception given by him is If he who Resigned reserved to himself his former Precedency for which though there be several Roman decisions yet it is very debateable how far a man can by Protestation or Paction distinguish and reserve a Precedency when he has Resigned or Disponed the Imployment to which it was annexed For since the Precedency is onely due upon the account of the Imployment it would seem that he who has Resigned the Imployment cannot retain the Precedency and to do so were to retain accidens sine subjecto QVESTION XXX Whether may a Nobleman resign his Honours in favours of a third Party And if the Kings Confirmation thereupon will exclude the nearest Agnats who would else have succeeded by their right of Blood This question seems of great Importance and intricacy For it may seem that he may transfer his title in prejudice of his nearest Heirs because the title is onely a Fee and all Fews may be alienated nor is this a meer right of Blood but a priviledge bestowed by the King and consequently may be transferred by his consent Nor can their be any thing more for the interest either of the Kingdom or of Noble Families than that when the nearest Heir is unfit to succeed wanting either Means or Wit suitable to such a Dignity it should be in the power of the King and the Noble person himself to choose a fit successor Like as this was so decided in the case of Robert King of Sicily Cl. pastoral de re Iud. And many Lawyers have been of opinion that even elder Brothers might resign their right of Succession and primo-genitur in favours of the third Brother passing by the second vid. c. 1. § praeterea tit quib mod feud amit Bald. Consil. 389. But others conclude That the nearest by Blood are not prejudged by such Resignations Because this is a right flowing from the favour of Nature and Law Naturae Legis donum quod non potest auferri L. si arrogater ff § sed an ff de Adopt nor is Dignity exposable to sale or in Commerce L. Iulianus ff si quis omiss Whereas if such Resignations or transmissions were sustainable all titles might be sold and the meanest Fellow if Rich might by the favour of a Minister and the folly of the present Possessor exclude the Noblest Race And by the Feudal Law though a Vassal may denude himself yet he cannot transmit his Fee in favours of remoter Heirs to the prejudice of the nearer cap. Titius tit si de feud fuer Contravers this case is not decided with us but the King upon a Resignation from the late Earl of Caithnes in favours of Glenurchy confirmed the title in his favours but by a new Patent and without the former Precedency and discharged by a letter the next Heir to use the title till the matter should be decided by the Judge competent But I find that in England Ed. 2. granted to Edmond de Lincourt upon his Petition a Patent under the great Seal impowering him to assign his Sirname Arms and Barony But the Lord Hoe having assigned his Name Arms and Dignity without the Kings licence the deed was adjudged void in Parliament From which the Authour of Ius imaginis pag. 27. concludes first That the title of Nobility may be assigned Secondly That it cannot be assigned without the Kings licence And yet I find that in the Viscount Purbecks case it was lately found by the parliament of England that a Nobleman could not levey a fine upon his Honour in prejudice of his Heir that is to say That a Nobleman could not do any deed to the prejudice of his Honour by alienating
not to restore the Precedency in prejudice of those who had acquired titles betwixt the Forfeitour and Restitution A clear instance whereof we have in the Earl of Crawfurd who being Forfeit for Rebelling against K. Iames the 2. at the Battel of Brichen and being thereafter restored he was not restored so as to take place from the Earl of Huntly But yet it is observable that the 4. Act. p. 16. p. 87. I. 6. which appoints restitutions per modum gratiae not to prejudge third paties speaks onely of lands possessions and such other parts of the Estate forfeited but speaks not of Honours and therefore some conclude that persons forfeited may be restored to the Honours of their Family notwithstanding the Precedency by the rest of the Nobility in the interim which is the rather received amongst us that the King may with us creat an Earl with the Precedency from all others as he could have done in England before the statute of Hen. 8. For I find by the Herauld records that Edmond of Hadham is created Earl of Richmond quod habeat sedem in Parliamentis alibi proximum ducibus And Henry Beauchamp Earl of Warwick is made primus Comes Angliae whereas he was formerly almost last and thereafter is created Duke of Warwick with this addition That he shall go Mate-like with the Duke of Northfolk and above the Duke of Buckingham And since our Kings had this prerogative and that they have not restricted themselves they might have it still though they should use it sparingly QVESTION XXXVI Whether have the Ambassadours of Monarchs the Precedency from other Monarchs or Princes themselves if personally present even as the Kings would do whom they represent And if in all cases an Ambassadour ought to have the same Precedency that is due to his Constituent To this it is answered That though an Ambassadour represents the Monarch from whom he derives his Commission and that some learned Lawyers do upon that account assert that they are to have the same Precedency that is due to their Master and so to be preferred to all Kings and Princes though present to whom their Constituents would have been preferred Paschal de Legat. cap. 38. yet the custom of Nations has run contrar to his opinion in preferring even inferiour Kings and Princes And it is decided amongst the Princes of Germany Tit. 25. Aureae Bullae Car. 4. And in anno 1542. the Ambassadours of Charles the fifth Emperour were decerned to cede the Precedency to Ferdinand King of the Romans and the reasons are 1 o. Because Princes found it their Interest to have no Subject compete with them or to have their own presence lessened by such marks of Disrespect 2 o. In a Prince who is present there resides True and Original Majesty whereas an Ambassadour is onely dignified with a Supposititious and Representative Honour shining if I may so say with borrowed rayes And of this opinion are Brunus de Legat. lib. 5. cap. 8. and Costa Consil. 44. though Zouch de Iure inter Gentes seems to favour Paschals opinion It may be likewise doubted whether an Ambassadour does retain the same Precedency due to him as Ambassadour when the Prince who sent him comes to the place himself And this was debated by the Earl Marishal who was sent over Ambassador to Denmark when K. Ia. 6. went over in person thereafter and brought over Chancellour Maitland with him who challenged the Precedency from the Earl Marishal alleaging that an Ambassadours Power evanishes upon his Princes appearance Which debate was decided by King Iames in favours of the Chancellour albeit the Earl contended That as his Ambassie ceased upon the Kings coming thither so did the others Office as Chancellour cease in a forreign Kingdom and therefore that he should have preceeded as being an Earl The former opinion preferring inferiour Princes when Personally present 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is so much the rather true that Ambassadours are not when they come to visit the Judicatures of the Nations where they preceed allowed the same Precedency And generally it is given as a rule by Lawyers that in locis actibus Iudicialibus Legatis praecedentia solita non servatur non pro dignitate Regis aut alterius a quo ablegati sunt Gothofred de Iure praecedentiae cap. 7. num 47. so that though Kings themselves would sit above all these Judicatures yet their Ambassadours sit but among them Thus the Venetian Ambassadour was onely placed in the Parliament of Paris after the Bishops as Rupan observes lib. 7. cap. 10. Though Ambassadours have the same Precedency that is due to their Constituents yet Agents and Residents of Princes have not nor has the Popes Nuncio the Precedency that is due to an Ambassadour Gothofred ibid. for these in effect are sent oftentimes to prevent the Debates that might-fall amongst Ambassadours and therefore the French King sends very rarely his Ambassadours to the Emperours Court because he knows that Court would give the Spanish Ambassadours the Precedency which he thinks is due to his Ambassadours QVESTION XXXVII Whether have such as have been Ambassadours or have been in such honourable Imployments any Precedency thereby when their Imployment is ended To which it is answered That though after an honourable Imployment is over whether by Dimission or by the expyring of the Commission the Precedency thereto annex'd ceases with it Yet the Prince sometimes gratifies the person with a continuance of some Precedency and Honour And in the Records of the Herauld Office in England I find that in a Court Marishal Sir Dudley Diggs and Sir Thomas Smith were adjudged to have the Precedency from other Knights-Batchelours of their own Degree because they had been Ambassadours though their Commission was expired In the customs also of most Nations a Judge retains still amongst those of his own Bench the same Precedency that he had formerly before his Dimission or his being laid aside except he has been laid aside for a Crime or Fault QVESTION XXXVIII What place is due to the Representatives of Subjects such as Viccars Deputs Assistants c It would seem that as Ambassadours have the same place that is due to him whom they represent so those who represent Subjects as Viccars who represent the Bishop Deputs who represent Judges ought to have the same place that is due to those whom they represent I find that L. 7. de Bonorcodicil C. Theod. there are four Dignities Ranked viz. Praefectorum Proconsulum Vicariorum Exconsularium And certainly in those Acts wherein they represent their Constituent they have the same Precedency that is due to him Felin in cap. cum olim de Offic. de Legat. And thus by the Canon Law the Bishops Viccar is preferred to the Dean and Arch-dean and not onely are these representative Dignities preferred in the acts of their Jurisdiction but even in all other deeds which necessarily preceed or follow them And some Lawyers are of