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
appoint Sheriffs in their place to command the Counties who are therefore still called Vice-comites Some were likewise appointed to command Towns and so these Comites Vrbium were of a meaner Degree than the Comites Provinciarum But now Earls who have their Designations from Towns are in the same Degree with those who have their Designations from Provinces Counts Palatine were such as had Office in the Kings Palace and had their name à Palatio as is clear by the whole Titles C. de Palavinis sacrar Largit tit de Castren Palatinorum peculio But it is fit to know that these Counts Palatin or Officers of the Palace differed in the Roman Law from Domestici for the Domestici these were properly and onely those who were of the Emperours guards as is clear by l. 3. c. de Protect Domest and Cujac upon that law The Counts Palatin in England were such as had Regal power within their own Jurisdictions nor do I in my reading find any Counts Palatin in Scotland save Walterus Palatinus de Stratherne who designs himself Atholiae Cathaniae Comes he gives his lands of Cortowhy to the Bishop of Brichen in anno 1429. And I believe the Reason why We have so few Counts Palatin in Scotland is because Our Lords of Regality have the same power But properly the Officers of the Kings house are onely now what the Comites Palatini were of old For Regulating the Precedency amongst Earles and Lords with Us K. Iames the 6. did grant a Commission to some Noblemen in March 1606. who upon Citation did pronunce the following Decreit according to which Decreit these Noblemen are at present Ranked and if any of the Noblemen therein prejudged do Reclaim they use to raise a Reduction of the said Decreit before the Session and Adject a Conclusion of Declarator Craving it may be found and declared that they ought to have Precedency from the Noblemen whom they therein cite This Decreet is from its Effect called the Decreet of Ranking whereof this is the Tenor. AT Edinburgh the 5th of March 1606. anent Our Soveraign Lords Letters directed Makand mention Forasmuch as His Majesty and the Lords of His Secret Council Considering the great contentions and differencies quilks many times occurrit and fell out amongst the Nobility of this Kingdom of Scotland anent the Precedency and Priority in Ranking and Voting in Parliament and general Councils and how that this their Contentions lay ever unremembred or agitat but at the very instance of their Meeting at His Majesties Parliaments and Coventions at whilk time there was greater matter of Impashment offered to the Estates to compone their Differences then to intreat upon the principal Subjects for whilk they were assembled His Majesty and the saids Lords therefore being careful to have this Contention removed and the contraversies and elists whilks arises amongst the Nobility for that cause settled and pacified wherethrow the Estates and Nobility being freed and relieved of such matter of Contention they may in Peace Love and Amity concur together and Deliberat upon such matters as shall be entreated and motioned in Parliament hereafter His Majesty for this effect has given his Highnes Commission under the great Seal to a number of His Nobility and who are most indifferent and no wayes suspect of partiality to conveen and call before them the hail Noblemen of this Kingdom of Scotland and according to their Productions and Verifications to set down every mans Rank and Place as in the Commission foresaid past under the great Seal at length is contained and anent the Charge given to Lodovick Duke of Lennox Iohn Marques of Hamilton George Marques of Huntly Patrick Earl of Orkney George Earl of Caithnes Alexander Earl of Sutherland Iames Earl of Murray Francis Earl of Errol George Earl Marishal David Earl of Crawfurd Iames Earl of Athol Iohn Earl of Montrose Iames Earl of Pearth Earl of Monteith Andrew Earl of Rothes Alexander Earl of Dumfermling Archibald Earl of Argyl Iames Earl of Glencairn Iohn Earl of Cassils Earl of Eglington William Earl of Angus William Earl of Morton Iohn Earl of Marr Alexander Earl of Lithgow Earl of Winton Alexander Earl of Home Simond Lord Fraser Edward Lord Bruce of Kinlosse Iohn Lord Forbes Patrick Lord Glames Iames Lord Ogilvy Alexander Lord Spynie Patrick Lord Gray Laurence Lord Oliphant Iohn Lord Murray of Tillibairn David Lord Scoon Iames Lord Lindsey Lord Sinclar Iames Lord Balmerinoch Patrick Lord Lindors Iames Lord Colvil of Culros Iohn Lord Fleyming Alexander Lord Elphingston Alexander Lord Stuart of Ochiltry Thomas Lord Boyd Allan Lord Cathcart Hugh Lord Lowdoun Robert Lord Semple Lord Pasley Iames Lord Abercorn Iohn Lord Maxwel Iohn Lord Harres Robert Lord Sanchar Lord Ross Iames Lord Carlyl Robert Lord Roxburgh Iames Lord Hay of Yeaster Lord Newbottle Iames Lord Thirlstain Iames Lord Torphichen Iames Lord Borthwick Thomas Lord Dirlton Lord Seaton And the Tutors and Curators of the saids Dukes Marquesses Earles Lords if they any have to have compeard before the saids Lords Commissioned at an certain day by gaine and to have brought and produced with them such Writs Evidents Documents and Testimonies as they have or can use for acclaiming that Rank and Place of Precedency and Priority challenged be them before others To have been seen and considered be the saids Lords Commissioners and they to have heard and seen their Ranks and place of Precedency and Priority appointed and set down be them according to their Antiquities of their Productions and that whilk should be verified in their presence and they and every one of them directed to take that place whilk should be appointed and prescrived unto them be the saids Commissioners as said is Certifying all such persons as should not compear themselves or their Procutors in their names That the saids Lords Commissioners will go on forward in setting down every mans Rank according to that which should be verified as said is and should proceed according to the several Instructions given be His Majesty to the saids Lords Commissioners for this purpose and the saids Lords Commissioners their Determination should stand in full force and effect aye and while an Decreit before the ordinar Judge be recovered and obtained in the contrar Likeas at more length is contained in the saids Lords Executions and Indorsations thereof which being called and divers Times and Dyets keeped to that Effect And the said Iohn Earl of Montrose Alexander Earl of Dumfermling Francis Earl of Errol George Earl Marishal and Alexander Earl of Lithgow Compearand personally and the said Alexander Earl of Sutherland compearand be Mr. Robert Learmont their Procutor and the said Earl of Marr compearand be Mr. Thomas Hope his Procutor the said David Earl of Crawfurd compearand be Laurence Scot his Procutor the said Andrew Earl of Rothes compearand be Mr. David Antoun his Procutor the said William Earl of Mortoun compearand be Mr. Thomas Learmond his procutor the said Earl 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