OBSERVATIONS Upon the LAWS and CUSTOMS OF NATIONS, AS TO PRECEDENCY.  
BY Sir GEORGE MACKENZIE of Rosehaugh, His Majesty's Advocate in the Kingdom of SCOTLAND.  PETRON. 
— Hos gloria tulit Honours.  
EDINBURGH. 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 discussed, wherein Crowned-heads are ofttimes 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 Panegyrics; 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 loved, though not the best obeyed 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 Majesty's merit, as some others of Your Subjects; having in those many occasions I had of attending You upon our public Concerns, been oftentimes both pleased and ashamed to find You understand my Trade (that great Art of Reasoning) far better than myself; discovering to me the weakness of some of my Reasons, and improving others. But what I admired more was, (for I admire justice more than Wit) to find Your Majesty always more concerned for Your People's 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 lodged 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 Commonwealth prevailed: And if any of their Creatures used them, as some have done the Monarchy, we should hear that Eloquence, which is now used 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 Monarches, 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 wrapped up Your Origin in this wonderful mysteriousness, as it were, to teach Your Subjects, that You hold Your Imperial Crown of Him, alone and immediately; and in showing them how to reverence You, has obliged You to depend upon His Divine Majesty, the only and immediate Author, as well as Support, of Your Power and Greatness; and who has heaped 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 ruin of ours; it being Your great interest to maintain that Law, which makes so many thousands obey You, in spite 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 Usurpers, or their impenitent Children; Those, who being picqued at want, or loss of Preferment, are acted by revenge and malice; or these who are so easily fooled, 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 tyranny 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 designed indeed to govern them and us; which should in reason make us rather jealous of our own factiousness, than of our Monarchy. And therefore, Sir, That God may always 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 Majesty's most Faithful, most Humble, and most Loyal Subject and Servant, GEORGE MACKENZIE.   

THE CONTENTS.  

CHAP. I. THE Precedency of Kings and Commonwealths.  
CHAP. II. Of the Precedency due to the Kings of Scotland.  
CHAP. III. That the Crown of Scotland was not subject to England.  
CHAP. IU. The debates betwixt the Kings of Pole, Sweden, Denmark, etc. and other Princes.  
CHAP. V. The Precedencies amongst Commonwealths.  
CHAP. VI Of the Precedency of the Electors, and the Princes of the Empire.  
CHAP. VII. Of the Precedency of Churchmen.  
CHAP. VIII. General Observations concerning the Precedency of Subjects.  
CHAP. IX. The Precedency due to Women.   

Forty 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 they were formerly?  
Quest. 2. Whether a Kingdom becoming a Commonwealth, or a Commonwealth a Kingdom, does their former Precedency remain?  
Quest. 3. Whether he who is elected to a Dignity, aught to have Precedency thereby, as if he were actually admitted?  
Quest. 4. Whether ought one who has been twice or oftener elected to any Dignity, be preferred to him who was only once elected?  
Quest. 5. What influence hath the conjunction of more Dignities upon Precedency?  
Quest. 6. How far do former Dignities influence a present Advancement, and determine the Precedency depending thereupon? and what Rank is due to honorary and extraordinary Offices?  
Quest. 7. Whether amongst such as have equal Dignity, the first in time ought to be preferred?  
Quest. 8. When many are promoted at once in the same Writ, or when many are nominate in the same Commission, whether is the order of naming therein expressed to be observed?  
Quest. 9 In what cases does Age prefer, and what is its prerogative in the matters of Precedency.  
Quest. 10. Whether does appearancy of Blood give Precedency before actual Investiture and Possession?  
Quest. 11. Whether does the apparent Heir his assuming and using the Title and Precedency of his Predecessor, make him liable to his Predecessor's Debts, and infer a passive Title against him, as we speak?  
Quest. 12. Whether does the appearancy of Blood give Precedency, where the Predecessor is not dead?  
Quest. 13. Whether should an elder Brother, who was born before the Father was preferred to the dignity of a King, Marquess, Earl, etc. be preferred to a younger Brother who was born after his Father had attained to either of these Dignities?  
Quest. 14. Whether ought a Son, who is in public Employment and dignified, to precede a Father who is not?  
Quest. 15. Whether may he who has the survivance of an Employment, challenge any Precedency upon that account?  
Quest. 16. Whether does the daughter of a Lord, who would himself have been an Earl if he had lived, take place from the daughter of a younger Earl?  
Quest. 17. Whether if the elder brother be mad, or dumb, etc. does the second brother get the same Precedency, as if his brother were dead?  
Quest. 18. Which of two or more Twins ought to precede, when it is controverted which of them was first born?  
Quest. 19 Whether do Natural Children born before a lawful Marriage precede? and should they be preferred to the Children born in a lawful Marriage, if they be legittimated thereafter?  
Quest. 20 Whether ought the order of the nomination to be observed in Commissions, where the Persons are ranked otherwise then can be consistent with the King's former express Grants?  
Quest. 21. In the competition betwixt two who are advanced at the same time, but in different Writs, as if two Patents were subscribed by his Majesty to two several Earls on the same day; which of the two were to be preferred?  
Quest. 22. Whether is Precedency to be ruled according to the date of the provision, Investiture, or actual Possession?  
Quest. 23. Whether does the dignity of him who bestows the Honour, regulate the Precedency that is bestowed among Equals?  
Quest. 24. Whether can a Prince nobilitate any of his own Subjects in the Territories of another Prince?  
Quest. 25. Whether when the Precedent of any Court or Incorporation is absent, may the eldest Member convocate the Incorporation? and who ought to precede in that case?  
Quest. 26. Whether may a Peer be degraded, because he hath not an Estate sufficient to entertain a person of his Quality, and by whom may he be degraded?  
Quest. 27. Whether is a Patent never made use of by the Father, valid after his death?  
Quest. 28. Whether if the Father use any low or base Trade which derogates from Nobility, will his Children and Descendants lose it thereby?  
Quest. 29. One having resigned a Dignity or Employment, and returning thereafter thereto, whether does he who has so resigned return to his former Precedency?  
Quest. 30. Whether may a Nobleman resign his Honours in favours of a third party? and if the King's confirmation thereupon will exclude the nearest Agnats, who would else have succeeded by their right of Blood?  
Quest. 31. Whether does the former right of Precedency remain with him who has resigned the Office by which he enjoyed the Precedency?  
Quest. 32. If a Person do not of himself resign, but be called from his Charge by the Prince to another Employment, and one provided to his Place, and returning thereafter to his first Dignity by the Prince's command, whether does he get Precedency according to his first or last Instalment?  
Quest. 33. Whether does he who is suspended from the exercise of an Office, return to the same Precedency when the suspension is taken off?  
Quest. 34. Two having Offices, and changing one with another their Employments for a time, whether when they resume their former Employments, do they return to their former Precedency?  
Quest. 35. Whether is he, who is restored by the Prince to a Dignity from which he was degraded, to be restored to the same Precedency which he had formerly?  
Quest. 36. Whether have the Ambassadors of Monarches the Precedency from other Monarches or Princes themselves, if personally present, even as the Kings would do whom they represent? and if in all cases, an Ambassador ought to have the same Precedency that is due to his Constituent?  
Quest. 37. Whether have such as have been Ambassadors, or have been in such honourable Employments, any Precedency thereby when their Employment is ended?  
Quest. 38. What place is due to the Representatives of Subjects, such as Vicars, Deputes, Assistants? etc.  
Quest. 39 What Precedency is due to Assessors appointed for judges, and to extraordinary judges?  
Quest. 40. Whether can the King create now an new Earl, and ordain him to precede all the former Earls, or any such number of them as he pleases?  
Quest. 41. Whether if a King should create an Earl, with Precedency to all other Earls, during his life? or if when an Earl is forefaulted, will his Lady in either of these cases retain the Precedency she formerly enjoyed during her Husband's life?  
Quest. 42. Whether amongst those of the Royal-Line, does the next to the Royal-Stock precede? or does the Precedency belong to the eldest of that Branch?  
Quest. 43. Whether, or when is the right or left Hand the chief mark of Precedency? and whether is the place opposite to the seat of the chief Person who sits betwixt the two, preferable to either right or left Hand?  
Quest. 44. Whether in Improbations raised to secure Precedency, can Certifications be granted as well against Patents of Honour, as against other Writs?  
Courses taken by Princes and judges, when they intent to shun the deciding of Controversies concerning Precedency, and to preserve the Rights of all the Competitors.    

Errata.  
Page 13. Line 48. deal former. p. 14. l. 21. read the French words thus, Aubaines, sont estrangers nais en pais, etc. l. penult, for in the dependent, r. independent. p. 16. l. 40. for imitating, r. intimating. l. 44. for then, r. when. p. 20. l. 20. r. filiolem. p. 27. l. 2. r. was not then decided. p. 31. near the foot, r. & aliis Magnatibus. l. penult. r. sons. p. 39 l. 32. r. Senescallo. p. 46. l. 44. r. his Procutor. l. 47. for Antoun, r. Aiton. p. 69. Quest. 11. l. 2. r. current. p. 74. Quest. 17. l. 14. r. defective. p. 77. l. 5. r. officium. l. 10. deal at the same time. p. 80. l. 2. for perceed. r. precede. p. 91. l. 36. r. unnecessar.  
Literal faults and errors in the Pointing, may be easily perceived by the Reader.   

Advertisement from the Author, to be subjoined to the third Chapter of the Precedency.  
BEing desired to prove, that from Chronology it is Impossible, that Kenneth 3. King of Scots, did row Edgar King of the English Saxons over the Dee; I prove it thus: Kenneth the 3. did not Succeed to the Crown of Scotland, till the Year 977. At which time, Ethelred, Edgar's youngest Son, did Reign in England: Ethelred having begun his Reign, Anno 975. two Years before Kenneths coming to the Crown of Scotland. It is also remarkable, that Heylen relates, that the King of Scotland was ordained at the Council of Constance, to precede the King of Castille, as being one of the five absolute Monarches; which was inconsistent with his being a Tributary, or Homager Prince. This was done in Presence of the King of England's Ambassador, who reclaimed not, as certainly he had done, if the King of Scotland had been Vassal to his Master. By all which we see how solidly Heylen writes upon this Subject. And the learned Speed doth in his History of Great Britain most Solidly, and Modestly, in many Parts thereof, clear us from this pretention; and especially in the Life of William the Conqueror, who, to clear Marches between Scotland and England, did set up a Cross at Stranmoor, with the Arms of England on the South side, and the Arms of Scotland on the North side; The King of Scotland doing only Homage for Cumberland. And in the Life of Edward the first, when some of the Great Men of Scotland waited on Edward in Northumberland, in the Controversy betwixt the Bruce and Balliol; he says, that Edward made then claim to the Superiority of Sotland, alleging that the Crown of Scotland was holden of him. To whom the Scots replied, that they were ignorant, that any such Superiority belonged to the King of England, neither could they make answer to such things without a King, etc. And that thereupon the King delivered to them his Letters Patents, in which he acknowledged, that the coming of those Scots, on this side the Water of Tweed, should not be at any other time urged to prejudice them, for coming again into England; That is, (says he) that their example should not so be drawn to an Argument of King Edward's right over them, as if they were to come again upon Duty: So prudently jealous (says this Author) were these Patriots of their Country's Liberty. And a little after, he acknowledges, that King Edward was then Plotting this Homage, because Scotland wanted a Head. He also confesses, that Balliol lost the love of the Scots, by the Homage he had made, and that by Letters to King Edward, he did afterward renounce this Homage as being contrary to his Oath, as extorted by violence, and as being made without consent of the three Estates. And speaking of King Edward's big Oath, as that he swore by the Lord, he would consume all Scotland from Sea to Sea, if he heard any more debate in that; adds, that the Scots did boldly enough reply, that in this Cause they would shed their blood, for defence of Justice, and their Country's liberty. And further, in the Reign of Edward the third, he observes, that this short lifed pretence, was renounced by that King, who quitted Scotland of all claim and pretence of right to the Superiority thereof, and delivered up the Roll, called Ragmans' Roll, wherein were contained the Names of those few Scots who had been forced to acknowledge this Superiority.   

Advertisement from the Printer.  
IT being objected by some, who are not so well acquainted with the methods taken by Heralds, in handling the Art of Blasoning, that many old Surnames, and Noble Families of this Kingdom, are omitted, and not set down in the Treatise of Heraldry, and others of less Note insert: To satisfy such, it is answered, that the Author did never design, (as no other Writer on that Subject ever did) to publish a Register of all the Surnames and Bearings in the Nation, (These being to be found in the Lion's Registers only) nor does he intent any advantage to such as are insert, or disadvantage to such as are left out; as not being induced to name any for instances of Bearings, either from the Antiquity and greatness of the Families, and Surnames, or his relation and kindness to them, but merely from the specific suitableness of their Arms to the several kinds of Charges and Ornaments Treated of throughout the Work.  
It is to be noticed, that the observe made Preced. p. 52. l. 4. of a mistake committed p. 42. is now unnecessary; The Sheet wherein that mistake was, being since reprinted.   

OF PRECEDENCY.  
CHAP. I. The Precedency of Kings and Commonwealths.  
men's Ambition, as well as Curiosity, doth breed in them a Desire to understand this Subject, which is a part of the Civil Law, and Law of Nations▪ exceeding as far all other parts of the Law, as Honour exceeds Money; But the same Ambition, which makes men very curious to know this Subject, will make them very unwilling to hear any thing that may decide against themselves: And so such as writ upon it run a great risque of Displeasing those whom they intended to Satisfy. But my design being to defend, and inform my own Country, I shall be little disappointed, though I want praise and esteem, since I do not deserve, or expect either: And he is an unworthy man, who does not think the serving his Country a sufficient salary, for greater Pains than I have here bestowed.  
Amongst those who are Supreme, Kings have the Preference from Commonwealths; and amongst Kings, the Emperor is allowed the first place, by the famous Ceremonial of Rome, as succeeding to the Roman Emperors, who are alleged to have been Universal Monarches; Because in Scripture they are said to have taxed the whole world. And therefore the Germane and Italian Lawyers, who are subject to the Empire, have with very much Flattery, asserted that the Emperor is the Vicar of GOD in Temporals, Bald. in l. 1. c. de jure aur. an. And that Jurisdictions are derived from him, as from the Fountain; calling him, Dominum & Caput totius Orbis: And for this they do very impertinently cite several Texts of the Civil Law, which being Laws made by the Romans themselves, cannot bind or prove against other Nations. Nor is the Translation of the old Roman Dignity upon Charles le maigne 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 Empire; 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 Empire, 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 undeniable Proof, that Scotland did set Limits to the Roman Empire: And thus as Scalliger observes, Romani Imperii fuit olim Scotia limbs.  
It is likewise pretended by the Germane Lawyers, that the Emperor 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. Peter's Church, Gloss. ad Clement. 1. And since the King of the Romans who is but Emperor in hope, debates with other Kings, as in anno 1533. he who is actual Emperor, aught to be preferred to them.  
For the Emperor it is also pretended, That in the Ottomon Court, and in all other Courts, the Emperor's Ambassadors are still preferred, and that he only is still styled, your Majesty, in all Addresses made to him by all other Kings, as by France, anno 1628. by Pole, anno 1621. etc. And that the Kings of Pole, Sweden, Denmark, and others have taken Confirmations from him, & ab eo petierunt veniam aetatis, Hearing. de fidejus. c. 2. And yet the Kings of Britain and France may debate the precedency with him, because the Empire is but Elective, whereas they are Hereditary, the Empire 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 Catholic King, and King of maniest Kingdoms; and some of them are so foolish as to say, That the Spanish Nation is more ancient than the French, as owing their Origin to Athamaricus, one of the first Governors amongst the Goths. But for the French it is answered,  
1. That they are the most Christian Kings.  
2. That they are Consecrated and Anointed.  
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 Emperor has of late decided in favours of Spain, yet that Decision is little considered, because of the Relation which the Emperor has to the Spanish Crown; And therefore the French King does very wisely send only Envoys and Residents to the Imperial Court, lest if he sent Ambassadors, 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 Emperor and King of Spain, did begin this Debate; which after many Contests, the Spainiard has at last ceded, having commanded his Ambassador, the Marquis de la Fuente, to acknowledge the same to the most Christian King, in Satisfaction of the Injury done to his Ambassador, in anno 1661. at London.  
The King of Great Britain found'st 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 julius 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 denied, 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 daily 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. council. 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 Earls in all Nations, the first who attained to the Dignity, is still preferred; though others be much richer, and have succeeded to more Earldoms.  
This being then the true and solid Ground of Preference, I may truly subsume, That the King of Scotland being equal 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 Polydore an English Historian, confesses that Egbert the first King of England, did begin his Reign eight hundred years after our Saviour's birth, and the King of Scotland married the daughter of Ambrose Aurelius, who was the first King of the Britan's, and whose Reign preceded 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 days of Constantine the great, which is a most unjust and groundless Calumny; 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 passed since our Christianity, so are not to be presumed to have recorded any thing of what preceded their own age, without sufficient Warrant: And as it is incredible, that so Sincere and Pious men would have lied, so it is not imaginable, that so many Societies would have conspired together, in a whole Tract of so circumstantiat a History as ours is; and there can be nothing brought to convel 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 days of Hadrian the Emperor, 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 seeing 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 days of Honorius, for in his second Consulat he has, 
— Scotumque vago mucrone secutus  
●regit Hiperboreas, remis audacibus, undas.   
And in another place he says, Scotorum cumulos flevit glacialis jernae. 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 days of julius Caesar. And as it cannot be denied, 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 Line 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 Conqueror. 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 Country, or Race which Reigns there. If the Country be considered, there can be no Precedency acclaimed by any; for as all country's 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 country, 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, than we ought to be preferred to the English; for we are still the same People and Nation, but the English are not the old Britan's, 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 jerusalem, though they commanded the people who now live in judea, and who came in place of the ancient jews, 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, etc. 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 Foreign 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. bell. 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 possessed by Christians, these having no Connection with one another: and a man should by the same Rule be preferred, because he dwells in a house where Christianity was first professed, which were in itself very ridiculous: And if the first Christian Race be allowed the Preference, the King of Scotland ought to be preferred; for Donald King of Scots embraced the Christian Faith in anno 199. before either William the Conqueror succeeded to England, or Hugh Capet to France, and long before Spain obeyed this Race of Monarches; for which we can cite not only our own Historians, but Baronius ad annum 449. Duchesne, and many others, and particularly Beda and Polidor, the worthiest of English Historians. Beda relates, That imbuebantur a Scotis parvuli Anglorum, quin & ipse Alsridus Anglorum Rex, in Insulis Scotorum operam dedit, & sacras Literas didicit, lib. 3. hist. c. 27. Reges Angliae cupidi salutis aeternae, Legatos ad Eugenium quartum Scotorum Regem miserunt, ut ille digneretur Viros idoneos mittere, per quos illi Christianae Fidei Rudimenta docerentur, & sacro Baptismatis fonte abluerentur, quod ille haud gravate indulsit. Which clears fully, that our Kings were Christian before those of England, and so ought to be preferred to the Kings of England, by their own Arguments, and their own Authors.  
King donald's Conversion is attested by Bellar. in his Answer to King james, by Barronius, ad annum 429. Sanderus lib. 4. de clav. David Arnoldus de conversione Gentium, etc. And since King Donald was before Fergus the second, it appears clearly, even from Foreign Histories, that we had Kings before Fergus the II..  
I cannot deny, but that in the Council of Constans, England and France were preferred to Scotland: but that proceeded, as Gothofred. observes, from the partiality of the Church of Rome, which always preferred those who were able to do them most Service; but if we consider the Principles of the Christian Religion: according to these, that Race ought to be preferred, whose Title is justest; and I am sure, that according to this Rule, Scotland ought to be preferred, for its Kings have not Usurped over the People which they Governed. And not only does Religion consider this ground of Preference, as suitable to Devotion; but the Law considereth it, as suitable to Justice: And Lawyers have therefore thought a Succession of Kings, enjoying a just Title, free from Violence and Tyranny, one of the chief Grounds of Preference and Precedency. And thus Vasquez. in praefat. ad illustres questiones, says, That multum ad nobilitatem & praelationem confert, ex veris & legittimis Regibus, & non a Tyrannis descendisse.  
Nor does the Custom either of Courts or Councils, invert the Precedency which is founded upon Antiquity, and the right of Blood, from which Consuetude cannot derogat in the matter of Precedency, since that Consuetude is only respected in Law, quae in se rationabilis juri nec naturae nec gentium contrariatur: And likeways since this matter of Precedency is settled by Lawyers, upon these solid Foundations, for securing the public Peace and Interest of mankind, it were unjust that the same should be so easily overthrown by the Partiality of Interested Churchmen, or the Pride and Power of other Competing and Rival Princes; and therefore to secure the Rights of Justice and Blood, against all such Invasions, Lawyers have unanimously concluded, that Consuetudine induci non potest ut prior in dignitate praeferatur posteriori, Crus. de praeemi. cap. 12. Which Principle they so far assert as to conclude, that this could not be conceded even by express Paction, Rumellin. dissert. 1. thes. 18. even though that Paction were confirmed by an Oath, Rippa. ad l. 3. ff. de donat. And albeit it may seem that every man may renounce that which is introduced in his own favours; yet to this it is answered, That men cannot renounce what is introduced in their own favours, when that which they renounce was not principally introduced in their favours, but arose to them necessarily, by the Laws of Nature and Nations, or was introduced principally, in favours of the common interest of Mankind, rather than of them, and in which, third parties would likewise be concerned: All which is clear not only by the principles of Reason, but by L. 3. ff. de pactis, and it cannot be denied, but that the Precedency from the Antiquity of blood, is no such private Right as may be renounced, it being a privilege not given by Law, but arising from nature, Lex non data, sed nata, and introduced for regulating the common Interests of mankind, and preventing their differences or oppressions; whereas how unfortunate or irregular should men be? if subjects might force their Magistrates, or younger brothers the Elder, or stronger Princes the weaker, to Renounce by Paction, or might serve from them by Custom and Inadvertance, the Seniority and Precedency due to them; whereas now, the impossibility of prevailing in such Designs, takes happily away all lusting after them, and whatever may be ascribed to Consuetude or Decisions in that Precedency, which because it sprung merely from Custom, may be regulated by it, or in dubious Cases, where a grain weight may cast a balance; yet I see no Law nor Reason that can be adduced, for taking away by Decisions, Negligence, or Consuetude, a clear right of Precedency, founded upon the Antiquity of Blood. Especially since all who writ upon precedency are clear, That no man can prejudge his Successors, as to the precedency due to them by blood, Licet positus in dignitate suo ipsius facto, possit sibi prejudicium afferre, non tamen praejudicare potest quoad successores suos, Dec. consil. 21. num. 74. vid. Gothofred. de praeced. pag. 55. Rub. decis. 298. qui tradit ea quae a genere & natura tribuuntur, non obstante facto majorum manent incolumia. Which Rule should rather hold in Kings than in any else, because they are but Administrators. But in this case, there is no Decision against our Kings, nor have they ever consented to any such preference: And therefore whatever may be said for others, against them, in a possessory Judgement, the matter of Right is still entire.  
Vasquez. the illustrious Spanish Lawyer, did, at the Council of Trent, adduce several Arguments for the precedency of the king of Spain, which, if they were well founded, would I confess, infer a Precedency to England and France, and which I shall the willinglier adduce and answer, that I have heard them urged for France and Spain, against the King of Britain; and because they are the general topics and common places, which are necessary to be known, and understood for clearing not only the Precedency of Princes, but even of the Nobility and Gentry.  
The first is, That these who are most powerful and greatest, ought still to be preferred, c. statuimus de major. & obed. and he must be accounted most powerful, who is most powerful, the time of the debate: Nam qualitas adjecta verbo, debet intelligi secundum tempus verbi, l. in dilectis § si extraneas ff. de noxalibus.  
The second is, That those who command the noblest and best Subjects, are accounted the noblest and best, Authent. de defensoribus civitatum § nos igitur.  
3. Riches are the rise and occasion of Dignity, and therefore are the chief grounds of precedency amongst Equals.  
4. He is to be preferred in Dignity, whom generally men esteem the greatest.  
5. Since Honour is the Reward of pains, and dangers, those who take most pains, and are liable to most dangers for Christendom, and the Christian Faith, aught 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 Salaries upon, and give a livelihood to most men, aught by Mankind to be preferred.  
To all 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, than the former Arguments were indeed considerable, and aught 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 Castille, 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 rhapsody 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 Humour than Discretion. I deny not, but that the Kings of Scotland did hold the Lands of Northumberland, Cumberland, and Westmoreland, 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 Sovereign Princes: For thus, Henry King of England, and several others of their kings, did Homage to Philip, and other kings of France, for the Provinces possessed 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 Countries, 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 denied by us; it being most undeniable, That the Scots being called in to assist first the Britan's 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 Conqueror, as Holinshed observes, the Scots were for that Service likewise Naturalised English, for which Naturalisation 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 tried by the Law of England, but by the Civil and Feudal Laws, which are now become the Laws of Nations, and are reverenced 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 aught the probation, which elids them be the stronger. And albeit all Domestic 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 Superior and Vassal; all Feus' requiring necessarily writ in their Constitution: Nor can Vassalage be legally proved 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 Emperor, and the Princes of the Empire, etc. 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 than the payment of Feu Duties to a Superior, either by Force, Ignorance, or Mistake, could prove the Payer to be Vassal for the future, except the original 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 entered into, it had been yet extant, since the English cannot allege, 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 observable, that in the Reign of King Edward the 1. that King styles 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 Vassals; and all they can allege is, That upon some impressions of Force, some of our own Kings being prisoners, or some of our people being oppressed, they did elicit 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 habit, and repute, and acknowledged to be a free Monarchy, and their Kings Independent and Supreme; and that not only by all Foreign Princes, (the best Judges in this Case) who have received and preferred their Ambassadors, as the Ambassadors of free Princes, but even in General Councils, the King of Scotland has been preferred to the Kings of Castille, Hungary, Pole, Navarr, Cyprus, Bohemia, Denmark; and thus they were ranked by Pope julius 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 alleged, 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 Anointed 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 Tithes 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, etc. quodque Regnum Scotiae (sicut accepimus) a progenitoribus tuis, Regni Angliae Regibus feudale non extitit, nec existit, etc. 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 superior, was contrare to the Law of GOD and Men.  
6. By the Feudal Law and Law of Nations, a Vassal cannot Mortify any part of his Feu, without the consent of his Superior; because the Superior, by the Mortification, loses the Services due to him out of his Feu, Churchmen being obliged to no reddendo, but Praeces & Vota: And therefore in all Mortifications made by Vassals, the Superiors 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 design our King, Regem Scotiae, and not Scotorum.  
7. The Historians also of other nations, did concur with those of our Nation in asserting this freedom; and thus Arnisaeus, the best Lawyer who has writ upon these politic questions, does look upon this pretence, as a mere 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 Superior but GOD, and is every way a Sovereign Prince, notwithstanding of the old pretensions 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 foreign 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 Ambassadors of Scotland; whereas no Superior can treat with his own Vassal, as a foreigner; nor can a Vassal send Ambassadors to his Superior; for an Ambassador must be equal to him, to whom he is sent, and is, in Law, no way liable to his Jurisdiction. And this is, amongst others, the opinion of Alberic. Gentil. an Engglish Lawyer, de Legationibus l. 2. c. 10. And it is clear from Liv. lib. 6. & lib. 43. 2. King Henry of England, being to enter upon a War with Simeon, Earl of Leicester, did entreat Supply from Alexander King of Scots; and lest this might infer any Acknowledgement of his Superiority, he did by Letters under his hand, and by his Ambassadors publicly declare, that he did not crave this aid as Superior, to which Superiority he had no pretence. 3. The same King Alexander, being invited to assist at the Coronation of King Edward, and being unwilling to go there, lest it might infer an acknowledgement, King Edward did declare, Quod non ex Debito, sed ex Gratia tantummodo hoc petebat. 4. The same King Alexander, being to make homage in England to king Edward, for the Lands of Penrith and Tindale, which he held of king Edward, he did publicly protest, Quod non pro Regno Scotiae, sed pro terris in Anglia, dictum Homagium faciebat; Rexque iste Angliae hujusmodi Homagium admisit: per quod praesumitur talia fuisse, & similia prius facta homagia, Regno Angliae per Reges Scotiae: Nam talia fuisse praesumitur, quale fuit illud declaratum & expositum Homagium; nam talia sunt subjecta, qualia praeadicata admittunt. which are the very Words used in the Answer made by the Scots, before the Pope, where all the former four instances are fully discussed, and were offered to be proved by Witnesses, beyond all Exception; the Writs themselves having been designedly taken away by king Edward. And Fordon has in his History, unprinted Copies of several Letters, written by the said Pope Boniface and others, declaring that those Instances consisted in their knowledge, and some of those Instances are fully repeated, by Duchesne pag. 661. who is to be believed, since he is a Stranger: And even Matthew Paris, a Learned English Historian, does declare, That king Richard the first did, when he was going to the Holy War, disclaim this pretended Superiority over Scotland, anno 1188. Which Disclamation is likewise observed by Hovedean, another Historian of the same Nation: And when Matthew Paris speaks of the Homage done to the king of England, he makes it only to be for his Lands in England, Rex Scotorum Willielmus, fecit Homagium Regi Anglorum Ricardo de jure suo in Anglia. Which is ordinarily the stile used by Historians, when they writ of this Subject: And thus Duchesne says, that Alexander made Homage to Henry the third, for his possessions in England, but refused to make him Homage for Scotland; and that king Alexander sent a cartel to king Henry, for asserting that he had made him Homage for Scotland. The Copy of the Homage is yet extant at Rome, and the minute of it is thus expressed, in the Records of our old Abbacies, Memorandum, anno Gratiae milesimo ducentesimo septuagesimo octavo, Apostolorum Simonis & judae apud Westmonasterium, Alexander Rex Scotiae, fecit Homagium domino Edwardo Regi Angliae, filio Regis Henrici sub his verbis, Ego devenero hominem vestrum pro Terris, quas de vobis teneo in Regno Angliae, de quibus Homagium vobis debeo, salvo regno meo; tunc dixit Episcopus Norvicensis, & salvum sit Regi Angliae, si jus habuerit ad homagium vestrum de regno; cui Rex statim respondit, aperte dicens, ad homagium regni mei Scotiae nullus jus habet, nisi solus DEUS, nec de ullo teneo nisi solo DEO. 4. King Alexander having died without Males, Edward the first, treated for a Marriage, betwixt Margaret, Princess of Scotland, called the Maid of Norway, and Edward his son: In which there are many pregnant Acknowledgements of this Freedom, Volentes & concedentes, quod deficientibus praedictis Edwardo & Margarita, vel eorum altero, absque Liberis extantibus, in omni casu & eventu, in quo ad proximiores haeredes regnum praedictum debeat de jure reverti, integre habere, absolute absque ulla subjectione, revertatur & restituatur iisdem. And in the close of that paper it is said, That there shall be no prejudice done to either of the kingdoms, Quin libere habeant statum suum: And in the Deputation given by the Governors of Scotland, dated at Melross, anno 1289. for treating that Marriage, this express Reservation is insert, Salvis tamen in omnibus & singulis, & per omnia, Libertate & Honore Regni Scotiae: Which Reservation is likewise insert, in a Warrant granted by king Edward, for treating the said Marriage. And it is observable, That in all the Scottish Addresses to him, and accepted by him, he is only designed Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae, but never designs himself, Dominus superior Scotiae, till after the War; which shows, that his former airy Title was very unjust.  
9 As the kings of England have acknowledged the Scots to be no Vassals, so have their Laws and Lawyers. For it is contented by these, That the Scots were Aliens to England, and could not have succeeded to any Estate in England, without being Naturalised; whereas alibi genitura, presupposes, that the alibi nati, are not Vassals: For this jus alibi geniturae, called by the French, droit d' aubeyne, is settled upon this Maxim of the Feudal Law, That because Feus' are granted by Over-lords or Superiors, upon design and promises, that their Vassals shall serve them upon all occasions, against all persons, and never reveal their secrets, nor conceal what may be their disadvantage; therefore Feudalists do justly conclude, That no man can be Liege man to two supreme Superiors or Over-lords, because these Duties are imprestable to both; seeing the secrets of the one, may be incompatible with the Safety of the other, and they may, by warring against one another, distract the Alleadgeance of their Vassal. And because men are more prone to serve their Native Prince, than others, therefore Strangers are always suspect, nor have they allowance to sell the Feus', to which they succeed, lest they should carry away the price out of the Country, and possibly employ it against the same Country. Which principle seems at first to have flowed from the Roman Law, by which, the Goods of Strangers dying in Rome, fell to the Exchequer or Fisk, & fiebant caduca. With this foundation of the Feudal Law, founded upon so clear Reason, do the Customs of other Nations agree; who account not these Aliens, who live under the same Alleadgeance: Thus Rageau pag. 67. Aubains sont estrangers, mais 〈◊〉, qui n' est pa de la soveraignete de la Courounne de France. Vid. Bacquet. du droit d' aubeyne, printed in the year, 1557. And by the Custom of Milan, (the Expertest Feudalists of all the World) alibi genitura extends not to any, who have sworn Alleadgeance, and live within the Spanish Dominions, though not within Milan: 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 Superior 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 Superior, 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 employed 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 Governors 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 entreated 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 pretensions 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 Superiors 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 Coin, all Coins bearing some Impressions from the Superior. 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 alleged, 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 fight 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 ransom them, and use them every way, as they did other Strangers and Foreigners.  
11. The Scots having intended a Declarator of Freedom 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 Reason's 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 itself 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 denied, but that England might have expected much more favour, from the Pope, than Scotland could; since they paid him a constant Revenue, called Peter's 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 Locrine, or Locuus, as he is termed in that process, he left Logria, now called England: To the Second, called Albanactus, he left Albany, now called Scotland: To the Third, called Camber, he left Cambria, now called Wales. But Humbert King of the Huns, having killed Albanactus, Locrine the elder, to revenge his brother's Death, did kill Humbert, and reunite Albany to Logria or England.  
The second was, That Donvall king of the Britan's, 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 Britan's, having overcome Scotland, he gave that kingdom to Angusell, who acknowledged him as his Superior, 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. john de Benlaco, he might by a miracle, be declared the just Superior of Scotland: Whereupon he did strike 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 Conqueror; 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 Geography 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 Conqueror, 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 Earldom of Huntingdoun (as is by some pretended) but for the very Crown itself: 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 controversy of Succession, betwixt Bruce and Balliol: 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 Maud, and her Nephew Robert: Or as king Edward the third, in the Right of the said Crown of France, determined of the Controversy, betwixt john Earl of Montford, and Charles of Bluis, for the Dukedom of Bretaigne. 3. By the Confession, and acknowledgement of Prelates, 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 beginning of the Reign of king Edward the third. 4. By the tacit Confession of the kings themselves; who in their Coins, Commissions, and public 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 Superior 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 ●hen William Wallace, a Scotsman by birth, and the best Soldier 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 looked upon by the Judges as subject to the Crown of England. The like done in the case of Simeon Fra●●ll, another of that kingdom, in the same king's Reign. In like manner, in the time of king Edward the third, it was resolved in the Court, in the Lord Beaumont's 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 Elizabeth's Reign, desired a medietatem linguae, because he was a Scots-man, and so an Alien; it was denied 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 County of Chester, one of the Ancestors of my mother: In which it is expressed, that the said Lands and Arms were conferred upon him, by that king for his eminent Services encontre son grand enemi & rebel Balliol 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 mere fiction. And for proving the Crown of Scotland to hold of England, there must be authentic Documents in Writ produced, as has been formerly debated: And this does sufficiently answer all that is said of belinus, king Arthur, etc. 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. Peter's Patrimony, and that Churches Demesne. It appears, that the Monks and Friars had a great hand, in making out this Title by Brute, which story was now new vamped, 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 sign 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 Conqueror, it is answered, That the matter of Fact is absolutely denied: And not only do our Historians, and the Historians of Foreigners, mention no such submission, but they do on the contrair, relate, That William the Conqueror having come with a Design to conquer Scotland, he was forced by Malcome king of Scotland to a Peace, very Honourable and Advantageous for Scotland; one Article whereof was, That William the Conqueror 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 Conqueror, as all the other Vassals did.  
As to King William's 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 itself 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 Successor, who is not obliged by what they have done. And if any such Act as this were binding, than England, by the same Argument, had remained a Feu of the Empire; since Richard the first their King did Homage to Henry the Emperor, for England; and King john 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 Balliol, 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 john Balliol 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 Ambassadors to King Edward, to show him that they did Revoke, and Disown the Homage made by the Balliol, and asserted their primitive Liberty. And so hateful an Act was this esteemed in him, that he loosed the Crown by it; whereas had this pretence of England been founded upon any Justice, it could never have been so severely either opposed or punished. But though Balliol had been a lawful King as he was not, (King Robert the Bruce's Title being preferable in Law;) yet could not the Balliol have subjected the Kingdom in Vassalage to England, since by the Feudal Law, a Superior cannot superinduce or interpose another Superior, 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 Superior 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 denied: 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 john 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 mere Fiction, appears not only by our own, but Foreign Historians. And it is not imaginable, that the greater part of the Nobility and Kingdom, having immediately disowned the Balliol, 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 Warrant 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 john, to hold his Crown of him? or if Portugal should not be acknowledged a free Crown, because Spain did once elicit from them a National Consent, by Force of Arms? Or if these three or four pretended English Parliaments, who acknowledged Oliver Cromwell 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 immediately reclaim, 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 john, in anno 1320. Wherein they Declare, that if their King should offer to submit to England, they would disown him, and choose 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 Foreign 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, numbered amongst our Kings such of the Royal Family, as were for the time Regent's or Viceroys. The Letter follows.  
SAnctissimo Patri in CHRISTO ac Domino, Domino joanni, 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 Souls Buttelarius Scotiae, jacobus dominus de Dowglas, Rogerus de Mowbray, David dominus de Brechine, David de Grahame, Ingelramus de Vmsravile, joannes de Meneteith Custos Comitatus de Meneteith, Alexander Frazer, Gilbertus de Haia Constabularius Scotiae, Robertus de Keith Mariscallus Scotiae, Henricus de Sanctoclaro, joannes de Grahame, David de Lindesey, Willielmus Olifant, Patricius de Grahame, joannes 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, Dovenaldus campbel, joannes 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, licet per Norwegienses, Danos & Anglos saepius impugnata fuerit, multis sibi Victoriis, & Laboribus quamplurimis adquisivit; ipsasque ab omni servitute liberas, ut priscorum testantur historiae, semper tenuit. In quorum Regno, centam & tresdecem Reges de ipsorum Regali Prosapia, nullo alienigena interveniente, regnaverunt. Quorum Nobilitates & merita, licet ex aliis non clarerent, satis tamen patenter effulgent, ex eo quod Rex Regum Dominus JESUS CHRISTUS, post Passionem & Resurrectionem suam, ipsos in ultimis Terrae finibus constitutos quasi primos, ad suam Fidem sanctissimam, convocavit: Nec eos, per quemlibet in dicta fide, confirmari voluit, sed per suum primum Apostolum, quamvis Ordine secundum vel tertium, sanctum Andream meritissimum beati Petri Germanum, quem semper ipsis praeesse voluit ut Patronum. Haec autem sanctissimi Patres & Praedecessores vestri solicita ment pensantes, ipsum Regnum Populum, ut beati Petri Germani peculium, multis favoribus & privilegiis quamplurimis muniverunt. Itaque Gens nostra, sub ipsorum protectione, libera hactenus deguit & quieta; donec ille Princeps Magnificus Rex Anglorum Edwardus, Pater istius qui nunc est, Regnum nostrum Acephalum, Populumque nullius mali aut doli conscium, nec Bellis aut Insultibus tunc assuetum, sub amici & confoederati specie, innumerabiliter infestavit: Cujus jujurias, Caedes & violentias, Praedationes, Incendia, Prelatorum Incarcerationes, Monasteriorum Combustiones, Religiosorum Spoliationes & Occisiones, alia quoque enormia, quae in dicto populo exercuit, nulli parcens Aetati aut Sexui, Religioni aut Ordini, nullus scriberet, nec ad plenum intelligeret, nisi quem Experientia informaret. A quibus malis innumeris, ipso juvante qui post vulnera medetur & sanat, Liberati sumus per serenissimum Principem, Regem & Dominum nostrum, Dominum Robertum, qui pro Populo & Haereditate suis, de Manibus inimicorum liberandis, quasi alter Maccabaeus, aut Josue Labores & Taedia, Inedias & Pericula, Laeto sustinuit Animo: Quem etiam Divina Dispositio, & juxta Leges & Consuetudines nostras, quas usque ad mortem sustinere volumus, juris Successio, & debitus nostrorum Consensus & Assensus, nostrum fecerunt Principem atque Regem. Cui tanquam illi per quem salus in Populo facta est pro nostra Libertate tuenda, tam jure quam Meritis tenemur, & volumus in omnibus adhaerere. Quem, si ab inceptis desistet, Regi Anglorum aut Anglicis nos, aut Regnum nostrum volens subjicere, tanquam inimicum nostrum, & sui nostrique juris Subversorem statim expellere niteremur; & alium Regem nostrum, qui ad defensionem nostram sufficiet, faciemus: Quia quamdiu Centum vivi remanserint, nunquam Anglorum dominio aliquatenus volumus sebjugari. Non enim propter Gloriam, Divitias aut Honores pugnamus, sed propter Libertatem Solummodo, quam nemo bonus nisi simul eum vita amittit. Hinc est, Reverend Pater ac Domine, quod Sanctitatem vestram, cum omni Praecum instantia, Genu flexis Cordibus exoramus; Quatenus sincero cord, menteque pia recensentes, quod apud eum cujus vices in terris geritis, non sic pondus, & pondus nec distinctio judei & Graeci, Scoti aut Anglici, tribulationes & angustias nobis & Ecclesiae DEI illatas ab Anglicis, paternis occulis intuentes; Regem Anglorum, cui sufficere debet quod possidet, eum olim Anglia septem aut pluribus solebat sufficere Regibus, monere & exhortari dignemini, ut nos Scotos in exili degentes Scotia, ultra quam habitatio non est, nihilque nisi nostrum cupientes in pace dimittet. Cui pro nostra procuranda quiete quicquid possumus, ad statum nostrum respectu habito, hoc facere volumus cum effectu. Vestra enim interest, Sancte Pater, hoc facere, qui Paganorum feritatem, Christianorum culpis exigentibus, in Christianos saevientem aspicitis, & Christianorum terminos arctari indies: Quare ne quid vestrae Sanctitatis memoriae derogat, & si, quod absit, Ecclesia in aliqua sui parte vestris temporibus patiatur Ecclipsin aut Scandalum, vos videritis. Exhortet igitur Christianos Principes, qui, non causam ut causam ponentes, se singunt in subsidium Terrae sanctae, propter guerras quas habent cum proximis ire non posse: Cujus impedimenti causa est, vereor, quod, in minoribus proximis debellandis, utilitas proprior & resistentia debilior aestimantur. Sic quam laeto corde dictus Dominus Rex noster, & nos, si Rex Anglorum nos in pace dimittet, illuc iremus; qui nihil ignoret satis novit: Quod CHRISTI Vicario totique Christianitati ostendimus & testamur. Quibus si Sanctitas vestra Anglorum relatibus nimis credula, fidem sinceram non adhibet, aut ipsis in nostram confusionem favere non desinat; corporum excidia, animarum exitia, & caetera quae sequentur incommoda, quae ipsi in nobis, & nos in ipsis fecerimus, vobis ab altissimo cro●imus imputanda. Ex quo sumus & erimus in his quae tenemur, tanquam obedientiae filii, vobis tanquam ipsius Vicario in omnibus complacere; ipsique tanquam summo Regi & judici, causam nostram tuendam committimus: Cogitatum nostrum jactantes in ipso, sperantesque finem, quod in nobis virtutem faciet, & ad nihilum rediget hostes nostros. Serenitatem & Sanctitatem vestram conservet altissimus Ecclesiae suae sanctae per tempora diuturna.  
Datum apud Monasterium de Aberbrothock in Scotia, sexto die Aprilis, Anno Gratiae milesimo trescentesimo vicesimo, Anno vero Regni Regis nostri supra dicti, quintodecimo.  
This answers likewise Ragmans' Roll; nor are we to consider who consented to Slavery: Since it is known that not only the Dowglass, the Grahame, and Wallace, but Thousands of others, never yielded even to that short Impression: And their Country preserved its Privileges, by their Loyalty; it being an undoubted Principle in Law, That in re pari potior est conditio prohibentis, & in re communi nemo dominorum juri quicquam facere potest invito altero, l. subimus ff. ad exhibendum.  
To that Argument by which it is urged, That our Kings did never assume the Title of Kings of Scotland, but called themselves only Kings of Scots, It is Answered, That the Argument is very Ridiculous; for first it is founded upon a false Supposition, it being most evident from our Writs in the Reign of King David the Maiden, that our King was entitled, Rex Scotiae; but in the Confirmation of the Abbacy of Aberbrothick, King William is called Rex Scotiae, and his Queen Regina Scotiae. Like as in that Register, there is a Charter granted by King john of England, wherein ad petitionem Willielmi Regis Scotiae, he grants a Liberty to the Monks of Aberbrothick, to Transport their Goods through England, free from Custom: 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 Pope's 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, etc. Which evinces that it follows not necessarily, 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 john, Henry the third.  
It appears also, by the former Transaction betwixt Edward the first, and the Governors 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 james 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 completing 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 Superior, 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 ofttimes called reges Scotiae, than the instance brought by himself, of the Charter granted by King Edward the first to Peter Dodge, wherein Balliol is confessed by himself to be called Roy de Escosse, King of Scotland: And this proves that the said Heylen lays down Grounds, which are not only false, but inconsistent. But secondly, though this were true, yet it proves nothing; seeing 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 Colonies, rather assume a Title from the people, than from their Country. And seeing Men are Vassals and not Land, it will follow, according to the terms used by Feudalists, that seeing 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 looked 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 Gownsmen could have made us such, they needed not have employed Arms to have shed so much Blood in the quarrel: Nor can such Domestic 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 herself liable 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 Foreign Lawyers, and by Cambden, it clearly appears that he was proceeded against, not as a Subject of England, but as a mere stranger, who not being subject ratione originis, became subject ratione delicti, as they alleged. 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 otherways, 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 Heroic Wallace and others, for these instances show rather an excessive resentment upon present Hostilities, than the Justice of those, who against the Law of Nations, proceeded to murder such as were indeed prisoners of War, fight for their own Native King and Country: And even the English of that age, by entering 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 succumbed 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 Naturalised, and have had all the Privileges of Subjects communicated to them, without being Vassals or Subjects: And thus the Pelopidae were naturalised Persians, by Artaxerxes King of the Persians, and allowed to enjoy all their Privileges, in remuneration of the great Services done by them to the Persians, as Plutarch observes in the Life of Pelopidas: And thus the Athenians communicated their Privileges to the Rhodians; and the Latins to the Romans, as Livius observes lib. 25. And it is very clear, that the like was done by the English to us, by a Statute of St. Edward, which is yet extant in a Book called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 published by William Lambert, anno 1568. And Ratified by the Conqueror, amongst the good Laws of that Prince, as Hollenshed observes. Amongst others who are to be reputed of the same Nation with the English, we find the Scots mentioned in the Statute; for which two Reasons are given in it, quia omnés ferme Scoti proceres ex Anglis conjuges coeperunt, & ipsi rursus ex Scotis, & sic sacti sunt duo in carne una; That is to say, Because most of all the Scotish Nobility did take Wives of English Extraction, and the English of Scotish.  
The second Reason added in that Statute is, quia simul & in unum contra Danos & Norwegos atrocissime pugnaverunt. And it is very well known to such as understand History, that until these late and unhappy Wars, occasioned by the Shires of Northumberland, Westmorland and Cumberland, the Scots assisted the English in all their Wars; especially, as that Statute says, against the Danes and Norwegians, by whom they were called by those Invaders, to share in the Victory; but they refused the offer, and fought near two hundred Years against these Usurpers: In which Wars, they are said to have lost two Kings, with an hundred thousand Men; all which the Scots might have prevened, by suffering the Danes to pass peaceably to England, through their Territories. And it is observable in the Histories of both Nations, that the Danes were never expulsed from England, till they were first beat in Scotland; till at last they were forced to swear, that they should never return into this Isle; and in Return of which Assistance, we got from England this Privilege in the same manner, that Lewis the XII. communicated to us a general Naturalisation in France, with all the Privileges competent to the Natives of that Kingdom, when we were forced to associate with it, to secure ourselves against the invasions of our old friends.   

CHAP. IU. The Debates betwixt the Kings of Pole, Sweden, Denmark, etc. and other Princes.  
THe King of Sweden pretends to Precedency from the other two; and Nolden in his Treatise of Nobility, chap. 9 num. 107. leaves the Precedency betwixt Sweden and Denmark to be dubious: And though some prefer the Dane as a Member of the Empire, grafted therein in anno 1542. Yet others think him, upon that account, the less preferable, because he is thereby in a manner no free and Sovereign Prince; Peter King of Denmark having really become Vassal to Fredericus 1. Emperor, Otto. Fris. lib. 2. cap. 21. But Pontanus relates that the Emperor did upon this account give him the right hand, and thereby preferred him to Sweden. I find also in the Council of Basil, that Ravallus Archbishop of Vpsale, did claim Precedency to his Master the King of Sweden from all the Christian Princes, he being the true Successor of the Gothish Kings, who exacted Tribute even from the Emperors and Kings of France. Both Denmark and Sweden, claim the Precedency from the King of Pole, as an Elective and Limited Monarch: And in the Ceremonial of Rome, Pole is placed after the other two: And it is undeniable, that Sigismond King of Swed, being chosen King of Pole, he did in all his papers prefer always the Title of Sweden to that of Pole.  
The King of Pole has debated for Precedency with the King of Portugal, in anno 1557. But at Rome, Pope julius the second, preferred Portugal: And yet the Debate was renewed under Charles the fifth, In whose Reign, both their Ambassadors meeting in his Court at Church, and the Ambassador of Portugal having possessed the first place, the other made a sign, as if he would have spoken in private with him, at which the Portugal rose, whereupon the Polonian run in to his seat, Hottoman de Legat. lib. 3. cap. 21.  
The King of Hungary contests for Precedency with the King of Pole: But in the interview betwixt Maximilian the Emperor, Sigismond King of Pole, Vladislaus King of Hungary, and Lodowick King of Bohemia, in anno 1515. the King of Pole was preferred to walk on the Emperor's right hand. But this Controversy being renewed at the Council of Trent, They, as all other Kings were ordained to take place, not according to their Dignities, but according to the date of the Production of their Commissions in the Council.  
The King of Hungary argues for the Precedency from the King of Bohemia: Because, amongst the Emperor's Titles, Hungary is set down before Bohemia; But Bohemia oppons the Golden-bull of Charles the fourth Emperor, Wherein it is ordained, that in all Acts which concern the Empire, Bohemia shall proceed all other Kings: So that it seems that the King of Hungary ought to preceded in all things not relating to the Empire; But that Bohemia is to preceded in all that relates thereto.  
There are other Sovereigns who are not Crowned-heads, Such as Savoy, Mantua, Florence, Ferara, Parma, Venice, who Debate also their respective Precedencies in this manner.  
The Duke of Savoy is by Pius the fifth, Declared to be the first Prince of Italy, And in the Chapels of France, Venice, etc. gets the first S●●l, And as King of Cyprus pretends to be ranked amongst the Crowned-heads: But it may be admired why the Duke of Savoy takes the Title of Royal Highness; For, if he be King of Cyprus, he ought to have the Title of Majesty; and if he be not King, Royal Highness is not due to him. And the Duke of Mantua did contend with him, though his Competition was not sustained, vid. Crus. pag. 511. And though the Title of Eminency was bestowed upon the Duchess of Mantua, by Ferdinand the second; Yet that was a Compliment bestowed by the Emperor, rather with respect to her Sex, and her Relation to the Imperial Family, then to the true Dignity due to her as Duchess of Mantua, vid. Limneum, jur. pub. lib. 5. cap. 14.  
The Duke of Florence was still preferred to the Duke of Ferara, by Charles the fifth, And Port. lib. 4. Resp. Juris. 167. confesses, That Florence was acknowledged to be first, by the Emperor, by Rome, and by France: But yet Paul the third considering that the Duchy of Florence was only erected in anno 1531. Whereas the Family of Est, were raised to be Dukes by Paul the third, 1452. and were declared Dukes of Ferara by the Emperor, 1454. did therefore prefer Ferara to Florence.   

CHAP. V. The Precedencies amongst Commonwealths.  
IT cannot be denied, but that Kings and Crowned-heads have the Precedency from Commonwealths; though they contend that they being the Freest of all men, are the Noblest; And being in Effect a Country of Kings, aught to be preferred to any one King: Especially, since their Government is elder than that of Kings, men having drawn themselves into Societies, before they either submitted to Kings who assumed that Government by Force, or Elected Kings, because they could not agree amongst themselves.  
There are some Commonwealths who claim precedency, as having right to Kingdoms: And thus Venice claimed the same precedency with Crown'd-heads in the Popedom of urban the eight, and Innocent the fifth, because they had right to the Kingdom of Corsica; But this was denied.  
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 Commonwealths of Italy, Venice is by opinion of all Lawyers, preferred to all the Commonwealths 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 State's General contend with Venice, and all other Commonwealths, as being the more powerful, and being a Society of Commonwealths. They pretend also to Precedency from all the Princes of the Empire, as being more Independent than 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 Emperor has preferred the Electors to all Ambassadors of Commonwealths, by an express Ordinance related in Crus. p. 545. And now Holland, as having a kindness for the Empire, Treats the Ambassadors 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 preceded the Commonwealth 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 behoved to preceded the Son, the Dukes of Savoy yielded 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 james King of Cyprus. The Difference is now thus settled, That Venice shall Treat the Ambassadors 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 Ambassadors of the Commonwealth of England, as those sent from Kings, Mem. Ambassad. pag. 334.  
The Cantons of Swiss 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 Ambassadors or Envoys take place after the Venetian, and State's 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 Signior: 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 Ambassadors of Holland or Venice, who are covered at their Reception, since in anno 1646. they are acknowledged to be a Free State.  
The Grison Ambassadors 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 College (though said to be Founded by the Emperor 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 Empire was Sunk, after the Death of Frederick the second.  
Amongst the Electors, the ecclesiastics are preferred to the Laics.  
The Ecclesiastic Electors, are, the Archbishops 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 Emperor; The Bishop of Mentz, was to take place in all his own Dyocie, and in all Germany▪ Whereas the Archbishop of Cullen, was to take place in all his own Dyocie, and in Italy, and France. And of old in the Election of the Emperor, the Bishop of Mentz was preferred as Arch-chancellor of Germany: The Archbishop of Treves as Arch-Chancellour of France: And the Archbishop 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 Emperor: The Count-Palatin the Imperial Apple, walking on the Emperor's Right hand: The Marquis of Brandenburg the Sceptre, 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 Emperor's Right hand, after the King of the Romans, and the Archbishops of Mentz, and Cullen: And upon the Left, after the Ecclesiastic Electors, the Duke of Saxony had the first place, and the Marquis of Brandenburg the second. But yet I find Beutherus, and other Germane 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 Emperor Lewis the fourth Ordained the Palatin and Bavaria to preceded 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 Ambassadors, and Representatives of all the absent Electors; as was Decided in anno. 1654. Excepting only the Ambassadors of Austria, and the Ambassadors of Foreign Kings, were still allowed to take place from all the Electors, except the King of Bohemia, in all the Solemnities of the Empire. But the Ambassadors of Commonwealths having claimed the same precedency, The Emperor Leopold has Discerned against them, in favours of the Electors, Crus. lib. 4. cap. 4.  
The eldest Sons of the Electors preceded all the other Princes of the Empire.  
The Archdukes of Austria have the first Seat next to the Electors.   

CHAP. VII. Of the Precedency of Churchmen.  
I Need not debate the Differences that have fallen in amongst the Patriarches of Rome, Constantinople, Antioch, Alexandria, and jerusalem: Those of Rome and Constantinople having claimed Precedency, because their See were the seats of the Roman and Grecian Empires; Those of jerusalem claiming preference, because the chief Priesthood was once settled there; Those of Antioch claiming precedency, because Antioch was the first seat of Christianity, as is clear by the 11. chapter of the Acts; And those of Alexandria, pretending that they were equal to the Roman Patriarch, at least, because Alexandria was the chief City of the East before the building of Constantinople, and the Church thereof being by Euseb. lib. 11. said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. vide, Salmas. de Primate. pap. cap. 12. Thus far did Precedency invade even Religion, and raise Emulation amongst those who pretended to be the greatest Patterns of Humility.  
The Roman Patriarch was by Phocas the Emperor raised above all the rest, in the year 606. since which time they have raised themselves by several Degrees to the Papacy, though it cannot be denied but even before that time, the Bishops of Rome had the first Seat in all Councils, as is clear by justinian's Novella. 131. cap. 2. And in the Council of Nice, Adrian Bishop of Rome had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉: But the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Or the power of preceding did still belong to the Emperors, as hath been fully cleared by Crusius and others: And though it be pretended, that Constantine the Great did from Christian Humility, prefer the Successor of St. Peter as Vicar of JESUS CHRIST to himself; and that in the Canon Law, cap. Constantinus 14. Dist. 96. the Emperor Constantin is brought in acknowledging himself to have led the Pope's Bridle, and in the Famous Ceremonial of Rome: Fol. 21. the Emperor is allowed no higher place than the Pope's Footstool; Yet Frederick the 1. Emperor did contentiously Debate this Precedency with Adrian the fourth, since which time it hath been variously acquiesced in by Popes and Emperors. And though the Legates be Representatives of the Popes, yet Thuan tells us, lib. 98. That the Learned Brissonius' Precedent of the Parliament of Paris, would not suffer the Pope's Legate to preceded him. And at the Coronation of Charles the fifth, the Pops Legate was denied the precedency from the Electors.  
The Cardinals have Debated for Precedency with the Patriarches, though by the Novella, 132. c. 2. justinian places Patriarches next to the Pope: And Panormit. in cap. antiqua X the privileg. & excess. Praelat. prefers the Patriarches to the Cardinals; and now by the Concession of Sextus Quintus, that Pope, hath raised the Cardinals to an equal Degree with Kings, and if Kings be present at Table, or other Solemnities with Cardinals, If there be but one King, he is to sit after the first Cardinal Bishop, and if there be more Kings, they sit mixedly with the Cardinals, first a Cardinal and then a King: But though this holds amongst Popish Princes, yet the Author of Les Memoirs des Ambassadeurs does Observe, That Leicester, Grotius, and the other Ambassadors of PROTESTANT Princes never yielded Precedency to Cardinals, till Lockhart Ambassador for Cromwell yielded it to Cardinal Mazarine; Where he likewise observes, That though the Prince of Condie, yielded the Precedency to Cardinal Rechlieu, yet the Count of Soisson refused it.  

The Bishops of Scotland preceded in this manner.  
Archbishops of St. Andrews,  
Archbishops of Glasgow.  
Bishops of Edinburgh,  
Bishops of Galloway,  
Bishops of Dunkel,  
Bishops of Aberdeen,  
Bishops of Murray,  
Bishops of Rosse,  
Bishops of Brechin,  
Bishops of Dumblane,  
Bishops of Caithness,  
Bishops of the Isles,  
Bishops of Argyl,  
Bishops of Orknay.   
I find by Letter in anno 1625. that before King james going into England, the Marquesses of Scotland did take place from the Archbishops; But now the Archbishops take place from all Dukes and Marquesses, in imitation of England: And by a Letter in anno 1626. renewed in anno 1664. The Archbishop of St. Andrews is to take place from all Subjects, which is to be limited, as not to exclude the King's Children, and Brothers as I conceive; And de facto the Archbishops of St. Andrews ceds to the Chancellor, since the Letter.  

The Bishops of England Preceed thus▪  
Archbishops of Canterbury,  
Archbishops of York.  
Bishops of London,  
Bishops of Durham,  
Bishops of Winchester,  
Bishops of St. David's,  
Bishops of Ely,  
Bishops of Norwich,  
Bishops of Hereford,  
Bishops of Salisbury,  
Bishops of Peterborough,  
Bishops of Carlisle,  
Bishops of Worcester,  
Bishops of Rochester,  
Bishops of Landaff,  
Bishops of Lincoln,  
Bishops of Bangor,  
Bishops of Exeter,  
Bishops of Chichester,  
Bishops of St. Asaph,  
Bishops of Oxford,  
Bishops of Lichfield and Coventrie,  
Bishops of Bristol,  
Bishops of Gloucester,  
Bishops of Chester,  
Bishops of Bath and Wells.    

CHAP. VIII. General Observations concerning the Precedency of Subjects.  
NObility is divided with Us, as in England in Nobiles Majores & Minores, the Greater and the Lesser Nobility: Under the Greater are comprehended all such as are Lords of Parliament: Under the Lesser are comprehended Knights and Gentlemen. And though all these be not Peers of Parliament, yet they are all Peers to one another; And thus a Gentlemen may be offered to a Duke's Daughter, whose Ward and Marriage falls to the King, as has been often decided, nor can that Match be refused upon the account of Inequality: And it hath been found, that though Noblemen must be judged by their Peers, yet Landed Gentlemen may pass upon their Assize; and a Nobleman is obliged to accept of a Challenge from a Gentleman as his Peer, where Duels are Lawful. Under the word Barron all Our Nobility are comprehended, as is clear by the 81. Act. Parl. 14. ja. 2d. And the Inscription of the first Parliament of K. ja. 5th. where the Parliament is said to be holden per Regis & Regni tutorem una cum Praelatis Barronibus & Burgorum Commissariis. Albeit the Parliament of Rob. 1. was cum Episcopis, Abbatibus, Prioribus, Comitibus, Barronibus, & aliis Magnatibus, which shows, that there were other Magnates infra Barrones. It may be Doubted, Whether the Younger Son of Dukes, Marquesses, etc. are to be Ranked inter Nobiles majores, since they sit not in Parliament; Or inter Nobiles Minores, since they are designed Lords, and take place from many of the Nobiles Majores.  
The Sons of the Kings of France were all Kings, and Sovereigns in the first two Races, Because, according to the old Germane Custom, the Few and Honours were divided equally amongst the Sons: As now all the Sons of a Duke are Dukes there, etc. But thereafter all the other Children, except the Eldest, got only place and Precedency according to their Offices or Dignities, until Philip de Valois Succeeded as Prince of the Blood in a remote Degree; After which, the French thought fit to give Precedency to those, who might one day be their King: And so all the Princes of the Blood got precedency from all Subjects.  
With Us the King's Children, Uncles, and Nephews, only had precedency from all Subjects; And in SCOTLAND no remoter Degree preceded as Princes of the Blood, For the Families of Hamiltoun, Kinghorne, Fintrie, and others are Descended from Our Kings by lawful Marriages, but had no precedency upon that account.  
The first place next to the King is due to the Prince of SCOTLAND amongst Us, who is likewise Duke of Rothesay; as the second Son is Earl of Ross, that being an Appanage inseparable from him by Act of Parliament: But at present his Royal Highness is with Us Duke of Albany, as he is Duke of York in England.  
It has been doubted, Whether the King's Son, Uncle, Nephew, etc. have the Precedency from the King's Officers in the actual exercise of their Office, as at Coronations, Riding of Parliaments, in which it is the Constable's privilege to ride upon the King's Right hand, and the Marishals on his Left, in his return from the Parliament house: The Reason of which Difficulty is, because these are Acts which follow the office and not Blood, and the Nature of the Action requires that they should be posted, where they may be most serviceable. I find likewise, that this hath been Debated in France, whereupon in anno 1576. Henry the third emitted an Ordinance in Favours of the Princes of the Blood; And with Us, his Royal Highness the Duke of York at His Majesty's Coronation preceded all the Officers.  
Amongst the Princes of the Blood, the Last descended from the Royal Family has still Precedency accordingly; But though this hold in the Branches, yet the Eldest of the same Branch will preceded all of that Branch, and thus the Prince Palatins Grandchild would succeed to the Crown before Prince Rupert his Brother, though Prince Rupert be several Degrees nearer.  
I find that of old all Churchmen were Ranked together, and were first Ranked before all Laics: And thus the Parliament of King Robert the first, was habito Solemni tractatu cum Episcopis, Abbatibus, Prioribus, Comitibus; and even before the King's Sons, Brothers, or Nephews. Thus King Robert the first grants a Charter to the Abbacy of Aberbrothick, Confirming a Ratification made to them be Lundie, wherein the Witnesses are, Reverendis Waltero & Gilberto Episcopis, etc. Davide Deuce de Rothesay, Comite de Carrick, Carissimo nostro Filio primigenito, Roberto Deuce de Albania Comite Fyffe & Fratre nostro: And even the Abbots and Priors were Ranked before them, and when any of them were Officers of State, they were named according to their Ecclesiastic preferments: Thus jacobo Sancti Andreae Episcopo, Galvino Archiepiscopo Glasevensi Cancellario nostro. And in the Session when it consisted of half Churchmen, half Laics, the Churchmen sat on the Chancellor's Right hand, and Voted first: But it does not follow from these Instances, that therefore of old any Churchman did take place from the King's Son, no more than that a Bishop took then place of an Earl, because he was named before them.  
The Archbishop of St. Andrews was by a special Letter in anno 1626. and Renewed in january, 1664. Declared to have the Precedency from the Chancellor, and all His Majesty's Subjects: In time of Popery, he was Legatus natus, and both then and now he is totius Scotiae Primas; But though by this Letter he is Ordained to take the place of all Subjects, yet I think it would not give him place from the King's Sons, Uncles, and Nephews, though they be likewise Subjects; since the word Subjects must be here Interpret according to the Custom of Nations, by which these near Relations of Princes are preferred to all other Subjects. The Nobility of Scotland were either Declared such by Feudal Erections, their Lands being Erected by the King in a Duchy, Earldom, etc. which did of itself make him a Duke or Earl, in whose Favours the Lands were so Erected; Or else they got Patents of Honour, Declaring them Dukes, Earls, etc. and this is a much later way, none being Nobilitated by Patents amongst Us before King james the first.  
The third way of Nobilitating with Us, is by Creation and Solemn Investiture, the whole Form whereof will in all its Ceremonies be best known by the following Narration.  

The Form of the Creation of the Marquis of Hamilton, and Marquis of Huntly, tuesday the 17 of April, 1599  
IN His Majesty's great Chamber in the abbey of Holy-rood-house, where the like Ceremony was wont to be done, being richly hung with Tapestry, five Stages or Degrees of Timber were Erected; One for His Majesty on the Westside, whereon His Majesty's Chair of State was set under the pale of Honour; One for the Duke; One for the Earls; One for the Lords; and one for the Knights: There was also before the Throne a Table covered with cloth of Gold, whereon was laid the Sword, Sceptre, and Crown, the Noblemen attending the Ceremony in their respective Seats in their Robes, and His Majesty in His Rob-Royal, being placed in His Chair, The Queen sitting by; The Lion King of Arms, and Master of Ceremonies, With the Heralds and Pursivants in their Coats, and Trumpets sounding, brought in before His Majesty these two Noblemen, viz. The Earls of Arran and Huntly, the first conveyed be the Duke of Lennox, and Earl of Mar, the second be the Chancellor, and Earl of Caithnes. Thereafter the Lion asked His Majesty, If His Majesty would be pleased to promote these Noblemen to further Honours: His Majesty answered, Yes. Then the Lion, Master of Ceremonies, with Heralds, Pursivants, and Trumpets, Conveyed them into the Green Council-chamber, where they were Devested of their Comital Robes, and Vested in the habit of a Marquis, And so were again conveyed to His Majesty's presence thus,  
The Ordinary Macers that attend the Chancellor and Session making place: 

Master of Ceremonies.  
Trumpets sounding with the Nobleman's Colours at their Trumpets,  
Pursivants in their Coats;  
Heralds in their Coats;  
Four Gentlemen for each of the Persons to be Created, bearing their Honours, viz. For my Lord Arran, Robert Hamilton of Goslington, the Penon; Alexander Hamilton of Fenton, the Banner; Claud Hamilton of Shawfield, the Marquis Crown; john Campbel of Ardkinlas, the Patent. For my Lord Huntly, john Ogilvy of the Craig, the Penon; john Crichton of Frendraught, the Banner; Mark Ker of Ormistoun, the Crown; Alexander Gordon of Strathdon, the Patent.  
Lion King of Arms.    
The two Earls conveyed be the forenamed Noblemen 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 Lion made an Harangue, 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 professed. Thereafter the Lion delivered to His Majesty the Patents, and His Majesty redelivered them to the Lion, who gave them to the Noblemen, In token that they should obey GOD and His Majesty's Laws: Afterwards, the Lion delivered His Majesty the Marquis' Coronets, His Majesty redelivered them to the Lion, The Lion put the Crowns on their Heads, saying, john Marquis of Hamilton, Earl of Arran, Lord Even, etc. George Marquis of Huntly, Earl of Enzie, Lord Gordon, and Badzenoch, etc. The same was Proclaimed forth of the windows by the Heralds and Pursivants, with sound of Trumpet: Then were they conveyed to their Seats, and placed above the Earls, upon the King's left Hand, Trumpets sounding.  
The Lion desired His Majesty to Honour the Gentlemen, who bore the Honours, with the Honour of Knighthood, His Majesty consented: The Lion 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 Lion presented the Sword to His Majesty, who struck each of them therewith on the Right shoulder, and Sir offered the Spur, the Lion first proclaiming their Styls, and after the Heralds and Pursivants at the windows with sound of Trumpet.  
I find this Difference in the Creation of many Earls 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 Lion bear the Patent in a Velvet bag: And that the Lion 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 Majesty's 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 Lion 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 Earls, Viscounts, etc. 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 Duke's according to their Creation,  
The Eldest Sons of Dukes of the Blood Royal,  
Marquesses according to their Creation,  
Duke's Eldest Sons,  
Earls according to their Creation,  
Marquis' Eldest Sons,  
Dukes Younger Sons,  
Viscounts according to their Creation,  
Earl's Eldest Sons,  
Marquesses Younger Sons,  
Barons whom We call Lords,  
Viscounts Eldest Sons,  
Earls Younger Sons,  
Barons Eldest Sons,  
Barronets,  
Viscounts Younger Sons.   

But the Officers in England are by Act of Parliament, Henry the 8. thus Ranked:  
Lord Chancellor,  
Lord Thesaurer,  
The Lord Precedent of the Privy Council,  
The Lord Privy Seal.   
These four being of the Degree of a Baron, 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 Household.   
These last Six, and the King's principle Secretary, take place according to their present State; So that if they be Barons, they take place above all Barons; If Earls, above all Earls; If Dukes, above all Dukes.  
By a Decree and Establishment under the Great Seal of England 1 o. jacobi, 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 Duchy,  
The Chief Justice of the King's Bench,  
The Master of the Rolls,  
The Chief Justice of the common Pleas,  
The Chief Baron of the Exchequer,  
The other Judges and Barons of the degree of the Coif,  
The Younger Sons of Viscounts,  
The Younger Sons of Barons,  
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 Suitable 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, etc. In King Malcom the II. his Parliament; The Offices then Extant were, The Chancellor, 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. ja. 6. The Offices of the Crown are Declared to be, The Thesaurer, Secretary, the Collector, (which Office is now joined with the Thesaurers) the Justice General, Justice Clerk, Advocate, 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; The speciality of Officers of State being, That in all Acts or Meetings which concern the State, they sit as Members by Virtue of their office, as in Parliaments, Conventions, etc. where the Chamberlain and Admiral come not as such, nor the Constable and Marishal if they were not Earls.  
The Officers of State have oft contended for Precedency amongst themselves: And therefore King james did in Privy Council, upon the 17. of june, 1617. Declare, That in that and all other Parliaments, none should sit as Officers of State, save eight, and though there should be more of the said's Officers by Deputation, Division, or otherwise; Yet eight only should sit, which eight he did thus Rank by Act of Council; Thesaurer, Privy-Seal, Secretary, Register, Advocate, Justice Clerk, Thesaurer-deput, Mr. of Requests: And yet His Majesty having appointed Sir Archibald Atchison to be second Secretary, and he having contended that his place was to be next the principal Secretary; This was Opposed by the Register and Advocate, founding themselves upon the said Act of Council: It was answered thereto, That His Majesty might, notwithstanding of the said Act, have as many Secretaries as he pleased, and by that His Majesty was only Limited to eight Officers of State in Parliament; But that notwithstanding thereof, he might make use of any eight he pleased, and accordingly he had made use of the Chancellor, Collector, and controller, as Officers of State in several Parliaments, notwithstanding that they are none of the eight Officers mentioned in this Act; Likeas K. ja. had appointed the Lord Chancellor, being a Nobleman, to sit amongst the Noblemen, and not as Chancellor, or an Officer of State: The Council did remit this Debate to the King.  
I find that upon the 20. of February, 1623. the whole matter of Precedency amongst His Majesty's Officers and Counsellors is thus Stated: 

The Lord Chancellor,  
The Lord Thesaurer,  
The Archbishop of St. Andrews,  
The Archbishop of Glasgow,  
The Earls and Viscounts according to their Ranks,  
Bishops according to their Ranks,  
Lord Privy Seal,  
Lord Secretary,  
Lord Register,  
Lord Advocate,  
Lord Justice Clerk,  
Lord Thesaurer-deput,  
The Lords of the Session according to their Admission,  
Barons and Gentlemen, being Counsellors, according to their Admission.    
It is observable from this Act, that Lords of the Session have Precedency from Privy Councillors in Scotland, otherwise any Counsellor of an elder Admission would be preferred to them; And yet in England, Privy Councillors are preferred to all the Judges, and even to the chief Justices: And with Us I find no Privy Councillor take place as such, from any person whatsoever, which seems very strange; For since the Judicatur itself is placed before the Session, and that its Precedent hath Precedency from the Precedent of the Session, that therefore its Judges ought to preceded the Judges of the Session. 2 do. Though the Lords of Session are Lords of Council and Session, yet there being Secret Councillors, gives them a greater nearness, and Argues a greater Trust: And in all matters of Precedency, these are the Chief Topics for Precedency. 3 o. In Law Counselors are called by the Emperor, Pars Corporis nostri l. quisquis C. ad L. jul. Majest. And so to assault them was Treason, and is with Us. 4 o. In France this Question betwixt the Members Magni Concilii, and the Senators of the Parliament of Paris, is Debated by Boerius, and he prefers the Counselors; And in Sweden they have place from all the Nobility. 5 o. The Lords of Privy Council have more supereminent power, than the Lords of Session: For they can stop the Precedor of the Justices, they can Adjourn the Session, they can grant Precognitions, moderate punishments, etc. Notwithstanding of all which, such Respect has Our Kings to the Lords of Session, who Distribute Justice Equally to the People, that they still preferred them to all the Subjects, except the Lords of Parliament, and their eldest Sons.  
It has been contended by the Younger Sons of Noblemen, That they ought to have Precedency from the Lords of Session; Because, says the second Son of an Earl, I have Precedency from the Eldest Son of a Lord, and yet he has place from the Lords of Session, and it is a certain Rule in Precedency, That if I preceded you, I must preceded him who precedes you: And if an Earls second Son, and a Lords eldest Son, and a Lord of Session did meet together, the Earls second Son could not preceded the Lords eldest Son, except he preceded also the Lord of Session. To which nothing can be answered, save that the eldest Sons of Peers, being presumptive Peers, and such as will be Peers, It is fit that the Lords of Session, who have but a Temporary Precedency, should not preceded them.  
But I find that though in England, the younger Sons of the preceding Rank, take still the place from the eldest Son of the next mediate, as the younger sons of Dukes, from the eldest sons of Earls, and the younger Sons of Marquesses from the elder Sons of Viscounts: And that all the Chain of Precedency is founded upon this Gradation, and that it seems that Nature has led men to this Establishment; Yet the eldest Sons of Our Lords (Lord Barons) refuse to Cede to the second sons of Earls, and it was so of old with Us, and that which may be given as a Reason for this, is, that it is unreasonable, That they who are to be Peers, and to have a constant Title, should Cede to such as have but a Temporary Honour; But if this Reason were sufficient, the younger Sons of Dukes should not preceded the eldest Sons of Lord Barons.  
With Us the eldest Sons of Lord Barons are Designed Masters, as the Master of Rosse, etc. And of old the Uncles of Lords, after the Death of their elder Brother, though he left a Son, were called Masters, till the Nephew had a Son: For which I know no other Reason but that, because they wanted a Tittle, they took this: For their Father being Lord, there was no Degree below to take, as the elder Sons of Earls took that of Lord. And I believe, that thus the word Master was given in England to meaner People, when their name was not known: For though the word Dominus was refused by Augustus, as importing Slavery, which the Romans could not bear, rather than from a secret Impulse, as St. Augustin says, In respect Our SAVIOUR was then Born, who was the True Master, since Sueton tells, That Tiberius also refused this Title; yet in Compliment even then such as were not known, were called Domini: Obvios (says Seneca) si nomen non succurrit, Dominos salutamus, and thereafter with the Roman Slavery this Title grew from being a Compliment, to be a Duty: And thus the Grecian Emperor was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, and the eldest son 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉: and from this Title of Master, came Meship amongst Us, which was given to all such as had not a special Title, as Lord, Sir, etc.  
By Act of Parliament likeways, 14. May 1661. The Lord Precedent of the Session is Declared to have Precedency from the Register, Advocate, and Thesaurer-deput; And the Register and Advocate, are Ordained by the same Act to have Precedency from the Thesaurer-deput: But the Thesaurer-deput pretending that he is in effect Thesaurer in the Thesaurers' absence, and not the Thesaurer-deput, and that the foresaid Act of Parliament was in absence, he now pretends Precedency from both the Register and Advocate.  
To the end the several Offices may be the better understood, It is fit to know that the Chancellor is in effect the first Officer in the Nation, and is by his Office, and by a particular Statute, Precedent in all Courts, Act 1. Parliament 1. Charles the second, which Act of Parliament was made to declare that he was President of the Exchequer, as well as of other Courts, this having been pretended to by the Thesaurer: He hath his title not from the power of Cancelling, as the old Gloss says, That Cancellarius est qui habet Officium scripta responsaque Principis inspicere, & male scripta Cancellare; For it is not imaginable that he would take his title from what he destroys, and not from what he does: But from the Cancelli and Bars, within which the Judges did sit enclosed, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is clear by Cassiodor lib. 11. Epist. 1. Those Cancellarii of old were in effect the Clerks, and the Chancellor is so called now, Because, he signs all the public Papers, and Appends the Seal, Ideo quod ad eum universae publicae referrentur conscriptiones, ipseque eas annulo Regis sive▪ Sigillo firmaret, Simaque lib. 1. calls him Questor Legum, Conditor Regalis, Consilii, Particeps, justitiae Arbiter: Which names I conceive are given to him, because Novel. 114. Divinae jussiones debent habere subscriptionem gloriosissimi Questoris, and many of the Novels are signed Questor Legum.  
I find that in the Laws of King Malcolm Keanmore, the Chancellor is placed before all the Officers, and sometimes many of the considerable Earls are placed betwixt him and the rest of the Officers: Thus King Alexander grants a Charter, Testibus Willielmo de Bosco Cancellario meo, Malcolmo Comite de Fyffe, Alano Senescall● Scotiae, etc.  
Some think that there is a Difference betwixt Cancellario meo, whom they make Director of the Chancery, and Cancellario Regni, whom they make High Chancellor: And others make a Difference betwixt Cancellarium Regni & Cancellarium Regis, as Spotswood in his History observes. But I find that the High Chancellor is called Cancellarius meus, as in the foresaid charter, and sometimes Cancellarius simply, and sometimes Cancellarius Noster, and sometimes Regni, and sometimes Cancellarius Scotiae; And the same Willielmus de Bosco, is in the Chartularies of Aberbrothick, and Calco, or Kelso, named under all these Designations.  
I find the Director of the Chancery, was only a servant to the Chancellor of old: For in King malcolm's time, amongst the Fees to be paid to the Chancellors Clerks, there is a Fee to be paid to his Clerks for the Breeves, which Breeves belong to the Director of the Chancery; And therefore Skeen does justly Observe, hinc liquet Officium Directoris Cancellariae apud majores nostros ad Cancellarium pertinuisse, and which is very clear by the Statutes of King Rob. 3. cap. 1. vers. 3.  
I find that in these Laws, justiciarius, that is to say, The Justice General is placed next the Chancellor, but afterward Scotland was divided in two Justiciaries, on upon the Southside of Forth, who was called justiciarius Lothaniae, and in old Charters Iudex Laudoniae: And the other on the North-side of Forth. The Justice General is now neither Officer of the Crown, nor Officer of State; But yet he thinks he ought to have Precedency from the Precedent of the Session, the Justice Court being older than the Session; And being Precedent of a supreme Court, he is to preceded any Inferior Member of any other Supreme Court: And the King by Declaring that he advanced the Register, when he made him Justice General, has clearly signified, that the Justice General ought to preceded the Register: This place likewise has been generally possessed by Noblemen, and is the same with Us, that the Chief Justice of the King's Bench is in England: And this Jurisdiction was amongst others possessed at Rome, by the Praefectus Praetorio, who was their chief Magistrate.  
The Justice Clerk by the foresaid Statutes of King Malcolm, appears to have been but his Clerk; And though by the foresaid Act of the 11. Parliament K. ja. 6. The Justice Clerk be named before the Register and Advocate, yet that is only ob continentiam causae, because they are set down, The Justice, Justice Clerk, and their Deputs. It is Observable by that Act, that the Justice General is put after the Thesaurer and Secretary, and there the Justice Clerk is not made his Officer, as in the Laws of King Malcolm Keanmore. I find that Alanus, justiciarius Scotiae, Designs himself Hostiarius & justiciarius Scotiae, which shows that Hostiarius was a preferable Office: and this I take to be Commander of the King's Host; For Ostiarius is not written with an H, and is a meaner Office than Justice General: This Charter is granted in anno 1253. to the Abbacy of Aberbrothick, and though others may mistake the Ranking of a man's Titles, yet the Bearer will carefully Rank his own Designations.  
The third Officer named in those Laws is the High Chamberlain, Camerarius Domini Regis: And I find him in all the old Writes placed as Witness, before all the other Officers, next to the Chancellor. There was Magnus Camerarius, who was chief Judge over all the Burrowes; And there were other under Chamberlains, who are oftentimes Designed Camerarii, without the adjection of magnus; And I find in a Charter granted be K. David, in anno 1495. the witnesses are, Alexandro Domino Huyme, magno Camerario nostro, johanne Domino Drumond justiciario nostro, Ricardo Murehead Secretario nostro, & Waltero Drumond nostrorum Rotulorum, & Registri, ac a Consiliis.  
It is Observable, that the Officers were ofttimes named according to the quality of the Bearers, and not according to the precedency of the Offices: But in the former Charter, Dominus de Huyme▪ and Dominus de Drumond, being of the same quality, the Chamberlain is put before the Justice General. This Office of Chamberlanry was possessed Heritably of late by the Dukes of Lennox, and the Badge was a Golden Key.  
This Office is the same with praepositus Sacri Cubiculi, mentioned by justinian, and equalled by him to the Praefectus Praetorio, and placed inter illustres Palatinos', or Counts of the Palace, And is now in France called Grand Chambrier, and was constantly possessed by the Family of Bourbon.  
I find the Magnus Camerarius placed before the Thesaurer in a Confirmation, anno 1520. to the Abbacy of Aberbrothick.  
Senescallus Domini Regis, is next in these Laws, that is to say, The High Steward of Scotland, and Allanus Senescallus Scotiae, is very Famous in all the old Charters, and he is still placed before the Constable and Marischal: And it appears, that the High Steward, and the Steward of the King's House were the same, for those Laws mention only the Steward of the King's House; but now the Prince is Senescallus natus Scotiae: Under him are there placed the Panetarius, who commands over all the Bakers, and Buttelarius, who commands over all the Keepers of Taverns, etc.  
I find the Lord Souls was Buttelarius Scotiae, in the Letter before set down, Directed from the Nobility of Scotland to the Pope, in the Reign of King Robert the Bruce; And I have seen a Charter, wherein john and Thomas Murrayes, sons to the Governor of Scotland Sir Andrew Murray, were designed Panetarii Scotiae, upon the Forfeiture of john Cunning Earl of Monteith, in anno 1348. which Earl of Monteith was formerly Panetarius.  
Next to these are named in the foresaid Laws, the Constable and Marischal: But now the Constable and Marischal take not place as Officers of the Crown, but according to their creation as Earls; The Reason whereof I conceive to be, because of old, Offices did not prefer those who possessed them, but they took place according to their Creation; whereas now the Privy-Seal precedes all Dukes, and the Secretary takes place before all of his own Rank: But the Constable and Marischal, being now the only two Officers of the Crown that are heritable in Scotland, continue to possess as they did formerly: But in France, England, and all other places, the Constable and Marischal take place as Officers of the Crown; and it seems very strange, that these who Ride upon the King's right and left Hand, when he returns from His Parliaments, and who guard the Parliament itself, and the Honours, should have no Precedency by their Offices; And yet I cannot deny, but that of old, other Earls were placed before them, for in the former Charter granted by King Alexander, Malcolm Earl of Fife is placed before them.  
And I conceive their Precedency has not risen of late to the same proportion with others; Because of late Our Armies have been commanded by other Officers, and so there was little use for the Constable and Marischal.  
The Constable with Us in these Northern-Nations, is the same Office that the Comes Stabuli was under the Roman Empire, which may be confirmed by two clear Testimonies of great Antiquity, one is of Aimon. lib. 3. cap. 7. Land▪ gesilis Regalium praepositus equorum, quem vulgo Comes Stabuli vocant; The other is from Rhegino, lib. 2. Annalium Burchardum Comitem Stabuli sui (quem corrupte Constabulum appellabis) cum classe misit in Corsicam: Though the Learned Cujac. does believe that this Title comes from the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which signifies, a company of Men of War, ad l. unic. de Comit. & Tribun. Scolar. And there are some who derive it from the word Koning, which signifies a King; and Staple, which signifies a Hold, because some Constables were Commanders of the King's Houses: But I find that the High Constable did command the King's Armies, but was expressly debarred from commanding either His Houses or Garrisons; as L'oiseau well observes, lib. 4. cap. 2. Because, says he, It was a great power that one man should command both the Army, and the Garrisons: The Badge of his Office was, and is a naked Sword, which in the Roman Empire was the Badge of the Office, Praefecti Praetorio; and Trajan giving the naked Sword to Suro Licinius, who was his Praefectus Praetorio, gave it with these words, Pro me si mereor in me; Which words were thereafter put by Buchanan, with a naked Sword upon the Money, Coined during the Minority of King james the sixth. The Constable with Us, was by the Laws of King Malcolm cap. 6. Judge to all Crimes committed within twelve Miles to the King's House or Habitation; Though Skeen observes, that the best Manuscripts bear only two Leagues: But now his Jurisdiction is only exercised either as to Crimes or otherwise, during the time of Parliament, which some extend likewise to all general Conventions.  
The Marischal is a Germane word and Office originally, as the Learned Tillet proves fully, a Marker of Camps▪ and the Axe which he bears as the Badge of his Office, was that Instrument wherewith he did break the Ground, though now this part of his Office is delegated to the Marischal du Camp. The Marischal commanded the Horse as Tillet proves, whereas the Constable commanded both: But yet our Learned Craig calls the Constable only Praefectus Equitum; And yet as Tillet observes, the Marischal was not under the Constable, else he could not be an Officer of the Crown: For it is essential to all Officers of the Crown, and Officers of State, to depend upon none but the King. Of old I find the Orders in Military cases run, to Our Constable and Marischal.  
The Office of Marischal has never been out of the Family of Keith: But the Earls of Athol and several others have been Constables of Scotland; And therefore it is that the Earl Marischal hath no other Title; But the High Constable designs himself Earl of Errol.  
We had no Knight Marischal in Scotland till King Charles the Firsts Coronation, in anno 1633. at which time it was Erected by a Letter to the Privy Council; by his Office he is to take place immediately after the younger Sons of Lords.  
The Thesaurer is not mentioned amongst these Officers of the Crown under King Malcolm Keanmore, and of old it has been thought but an Office of the King's House; For in a Confirmation granted to the Abbacy of Aberbrothick, in anno 1529. by King james the fifth, after Reverendissimis Episcopis, and dilectis consanguineis, are enumerate as Witnesses, dilectis Familiaribus nostris Roberto Barton, nostro Thesaurario & Computorum nostrorum Rotulatore: Nor do I find a Thesaurer designed as Witness in any of the King's Charters till then, though some foolishly think that Panetarius was Thesaurer. And though the word Familiar Counsellor be now given to all Officers of State, who are not Earls, because they cannot be called Cousins; Yet of old it was only given to those of the Kings own Family, and was derived à Familia, though now Familiar is thought to be the same with Intimate.  
Till of late, Thesaurer, controller, and Collector of the Augmentations were three different Offices, but now they are all joined in one: controller is in the old Registers called Rotulator.  
The Thesaurer takes now place, as second Officer of State, next to the Chancellor; Next to the Thesaurer is the Precedent of the Privy-Council; After him the Privy-Seal; but the Secetary is only first of his own Rank, that is, if a Duke, the first Duke, etc.  
Of old the Secretary was a very Honourable Employment; For as Cassiodor, lib. 1. opist. 4. well observes, Honour hic datur egregiis, dum ad Imperiale Secretum, tales constat elegi, in quibus reprehensionis vitium non potest inveniri. But yet I find the Secretary only named in the former Confirmation, inter Familiares: Of old I find he was Styled, Clericus Regis, though some Interpret this Clericus Regis, to be either Clerk-Register, or the King's Confessor, and Clerk to His Closet, and some that he was Almoner.  
We have no Master of Requests now, that charge being swallowed up by the Secretary's Office; Their Office with Us was, as at Rome, To represent to the King the complaints of the People, Referendarii says Cassiodor. lib. 6. dolores alienos asserunt, conquerentium vota satiant, & per eos judices corriguntur.  
I find that Advocatus Fisci, now Our King's Advocate, or Atturney-General, was dignified with the Title of Comes, which is now Earl, l. jubenius i. de Advoc. divers. jud. and with the Titles of Clarissimus & Spectabiles, which was only bestowed on the chief Nobility, l. 4. & 6. eod. tit. and from this seems to have flowed Our calling them Lord Advocate; And the French calling them Messire, which Title only the Chancellor and Advocate there get: Upon this Officer, Rome in the Reign of Claudius the Emperor, bestowed so much Honour, that he said, Tantum Honoris & Authoritatis concessisse procuratori Caesaris, ut eum suis Legibus adaequaverit, volueritque ut quod ipse statuisset perinde ratum esset, ac si ab ipso foret constitutum: And of old they were still of the Order of Knights; for Tacitus in the life of Agricola, says, utrumque avum procuratorem Caesaris habuit quae equestris Nobilitas est. The King's Advocate is with Us, as in France, Consiliarius Natus, that is to say, is by virtue of his Office a Privy Counsellor, in a more peculiar way than the rest: For I find by the Records of Council in Queen Mary's time, that the Register and Justice-Clerk are expressly mentioned in the Commission of Council, but the Advocate is in all the Sederunts, though he be not named in the Commission. And though with Us it was not allowed to the King's Advocate, till Sir Thomas Hope's time, that he should be present at the Lords advising of Causes, where the Advocate was himself Interested; Yet I conceive, in Causes which he pleads merely upon the King's Account, he ought to be present even when the Cause is advising: This was allowed Advocato Fisci, for Trajan writing to Plinius, Commands eos adhibere in Consilium à Praesidibus cum de causa Fiscali agitur, which explains very well, L. 7. de jur Fisc. Where si Fiscus alicui status controversiam faciat, Fisci Advocatus adesse debet, quare si sine Fisci Advocato pronunciatum sit divus Marcus rescripsit, nihil esse actum & ideo ex integro cognosci opportere: Of which Office the Learned Budeus gives this Character, Magistratus is est in quem omnes suas actiones, Princeps, Populus, universi transcripserunt, asylum Legum, arx justitiae, innocentiae vim passae, aut judicio circumventae, propugnaculum, intercessor rerum malarum, suasor rerum bonarum, praesentis semper animi, Actor, & Defensor, de sententia juris & Equitatis.  
I find, that though per L. nemo C. de assessor. no man can be both a Judge and Advocate, yet the King's Advocats in France have been allowed to be Judges at the same time they were Advocats; for it was thought that the Office of King's Advocate, did naturally participate both of the Judge and Advocate, and so was not inconsistent with the Employment of a Judge, l. ult. c. de Advocate. Fisc. and this was so decided by the Parliament of Paris, in june 1605. And from this We probably in Scotland took occasion, a little after that time, to make Sir William Oliphant, and of late Sir john Nisbet, both Advocats and Lords of the Session.  
The Almoner with Us has no Precedency for aught I know, though in France, Le grand Aumosnier is thought to be an Officer of the Crown: He is very oft a Witness in all Our Charters granted be Our Kings, and some think that Clericus noster was Almoner.  
I find that Cockburn of Lanton, who was also custos magni Sigilli, in the second year of King Robert the thirds Reign, is made heritable Ostiarius nostri Parliamenti, that is to say, Usher of the Parliament. The Lion and he does Debate who shall go next to the King, or His Commissioner, in Parliament and Conventions, The Usher pretending, that if he behooved to go after the Lion, he behoved to go before the Heralds, and so he behoved to walk between the Lion and his Brethren, which were not decent, (though both in England, and with Us, I find, that several Degrees of Persons do in all Processions, walk between the Garter or Lion and his Brethren Heralds;) Likeas, it is employed in the nature of the Ushers office, that he should immediately usher him to whom he is Usher; but in England, I find, that at the Cavalcad, when His Majesty entered London, in anno 1660. and at His Coronation, Garter King of Arms did walk in the midst, having the Mayor of London on his left hand, and the Knight of the Black-Rod on his right: And the Author of Les Memoirs des Ambassadeur tells Us, that in anno 1629. at the Procession, for Celebration of that solemn Peace betwixt France and Spain, the King of Arms did walk immediately before the French King, Le Roy d'armes marchant immediatement devant Le Roy. I am likewise informed, that in England, the Precendency runs thus, King of Arms, Usher of the Black-Rod, Master of Ceremonies, and after him the Gentlemen of the Privy-Chamber, etc.  
The Title of Duke came from Dux, a Leader and Commander of an Army, and was at first a Title of Office, but now is a Dignity given by Kings and Princes, to men of Blood and good Merit; And with Us, the Prince of Scotland (as is already said) is Duke of Rothesay.  
The word Marques was first appropriate to the Lords of the Marches and Frontiers, but is since become a Title of special Dignity betwixt a Duke and Earl.  
Earl came from the Saxon word Ear-ethel, which was abridged to Ear-el, and afterwards by Abbreviation Earl, with the Dutch called Eorle; and at this day the Germans use the word Grave for it: They are in Latin called Comites with Us, because in the Roman Empire, Comitatus was called the Court of the Prince, l. 43. the Testament. Military. l. 13. ff. de re Militar. and those who attended the Emperor were called Comites, or his Companions: They were appointed to be Governors of the several Countries of the Empire, which were from them called Comitatus or Counties, and Earls are to this day designed Earls of such a Shire; But the Kings thereafter, being desirous to have their Subjects depending immediately upon themselves, did appoint Sheriffs in their place to command the Counties, who are therefore still called Vicecomites.  
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.  
Count's Palatine were such as had Office in the King's Palace, and had their name à Palatio, as is clear by the whole Titles, C. de Palavinis sacrar. Largit. & tit. de Castrens. Palatinorum peculio: But it is fit to know that these Count's Palatin, or Officers of the Palace differed in the Roman Law from Domestici, for the Domestici these were properly and only those who were of the Emperor's guards, as is clear, by l. 3. c. de Protect. & Domest. and Cujac. upon that law. The Count's Palatin in England were such as had Regal power within their own Jurisdictions, nor do I in my reading find any Count's 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 Count's Palatin in Scotland, is, because Our Lords of Regality have the same power; But properly the Officers of the King's house are only now what the Comites Palatini were of old.  
For Regulating the Precedency amongst Earls and Lords with Us, K. james 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 Sovereign Lords Letters directed, Makand mention; Forasmuch as His Majesty and the Lords of His Secret Council, Considering the great contentions and differences, 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 unremembered or agitat, but at the very instance of their Meeting at His Majesty's Parliaments and Coventions, at whilk time there was greater matter of Impashment offered to the Estates to compone their Differences, then to entreat upon the principal Subjects, for whilk they were assembled: His Majesty and the said's 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 Deliberate upon such matters as shall be entreated and motioned in Parliament hereafter: His Majesty for this effect has given his Highness' Commission under the great Seal, to a number of His Nobility, and who are most indifferent, and no ways 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 man's Rank and Place, as in the Commission foresaid, passed under the great Seal at length is contained; and anent the Charge given to Lodovick Duke of Lennox, john Marquis of Hamilton, George Marquis of Huntly, Patrick Earl of Orkney, George Earl of Caithnes, Alexander Earl of Sutherland, james Earl of Murray, Francis Earl of Errol, George Earl Marishal, David Earl of Crawfurd, james Earl of Athol, john Earl of Montrose, james Earl of Pearth, Earl of Monteith, Andrew Earl of Rothes, Alexander Earl of Dumfermling, Archibald Earl of Argyl, james Earl of Glencairn, john Earl of Cassils', Earl of Eglington, William Earl of Angus, William Earl of Morton, john Earl of Marr, Alexander Earl of Lithgow, Earl of Winton, Alexander Earl of Home; Simond Lord Fraser, Edward Lord Bruce of Kinlosse, john Lord Forbes, Patrick Lord Glames, james Lord Ogilvy, Alexander Lord Spiny, Patrick Lord Grace, Laurence Lord Oliphant, john Lord Murray of Tillibairn, David Lord Scoon, james Lord Lindsey, Lord Sinclar, james Lord Balmerinoch, Patrick Lord Lindors, james Lord Colvil of Culros, john Lord Fleyming, Alexander Lord Elphingston, Alexander Lord Stuart of Ochiltry, Thomas Lord Boyd, Allan Lord Cathcart, Hugh Lord Lowdoun, Robert Lord Semple, Lord Pasley, james Lord Abercorn, john Lord Maxwel, john Lord Harres, Robert Lord Sanchar, Lord Ross, james Lord Carlyl, Robert Lord Roxburgh, james Lord Hay of Yeaster, Lord Newbottle, james Lord Thirlstain, james Lord Torphichen, james Lord Borthwick, Thomas Lord Dirlton, Lord Seaton; And the Tutors and Curators of the said's Dukes, Marquesses, Earls, Lords, if they any have, to have compeard before the saids Lords Commissioned at an certain day by gain, 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 said's 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 said's Commissioners, as said is, Certifying, all such persons as should not compear themselves, or their Procutors in their names, That the said's Lords, Commissioners, will go on forward in setting down every man's 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 said's Lords Commissioners for this purpose, and the said's 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 Diets keeped to that Effect; And the said john 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 Monteith compearand be Graham his Procutor, the said Heugh Earl of Eglington compearand be john Bell his procutor, and the said john Earl of Cassils' compearand be john Hamilton, and Gilbert Ross, and the said Andrew Lord Stuart of Ochiltry, james Lord Balmerinoch, james Lord Abercorn compearand personally, the said Lord Lindsey of the Byres compearand be the said Mr. Robert Learmont his procutor, the said john Lord Forbes compearand be james Fogo his procutor, the said Patrick Lord Glames compearand be Mr. Patrick Sharp younger his procutor, the said Patrick Lord Grace compearand be Patrick Whyllie his procutor, the said john Lord Seaton compearand be Mr. William Livingston his procutor, the said Allan Lord Cathcart compearand be George Angus his procutor, the said james Lord Carlyl compearand be the said Robert Hamilton his procutor, the said Robert Lord Sanchar compearand be Creichton his procutor, the said James Lord Hay of Yester compearand be Mr. james Burchar his procutor, the said john Lord Harres compearand be Corbal Cunningham his procutor, the said james Lord Torphichen compearand be Mr. Robert Learmont his procutor, the said Lord Thirlstain compearand be Thomas Fleyming his procutor, the said Alexander Lord Spiny compearand be the said Mr. Robert Learmont his procutor; And the hail remanent Lords and Earls particularly abovewritten, being ofttimes called and not Compearand; divers Terms and Diets assigned to them for this effect, the Writs, Evidents, Documents, and Testimonies produced be the said's Persons compearand, and every an of them acclaiming the Priority and Precedency before others, being divers times and at divers Diets very diligently and exactly Sighted, Tried, Examined, and Considered be the said's Lords Commissioners, and the said's Lords therewith being, as also with the Ranks and Places of such Earls and Lords as were Promoted and Created in His Majesties own time, well and throughly Advised; The said's Lords Commissioners has Discerned, Decreited, Appointed; and set down, and be these presents Decerns, Decreits, Appoints, and sets down the Ranks and Places following, to the hail Noblemen of the Kingdom, to be Keeped, Bruiked, and Possessed by them, in all Parliaments, General Councils, and public Meetings hereafter.  
In the first, The saids Lords Commissioners Discerns, and Ordains the Duke of Lennox to have the first place, the Marquis of Hamilton the second, the Marquis of Huntly the third, because be the custom inviolably observed in all Kingdoms the place of Honour amongst Nobility, is first in the persons of Dukes, and next Marquesses, and then in the persons of Earls, and Lords; and next unto them the saids Lords Commissioners, Discerns, and Ordains the Earls abovewritten, to have Bruiked and Possessed their Ranks and places, according as they are here written, Ranked, and set down, in Order following, Viz. Angus▪ Argyl, Crawfurd, Errol, Marishal, Sutherland, Mar, Rothes, Morton, Monteith, Eglington, Montrose, Cassils', Caithnes, Glencairn, Buchan, Murray, Orkney, Athol, Linlithgow, Home, Pearth, Dumfermling, and Dumbar: And sicklike, the said's Lords Commissioners Dicerns, and Ordains, the Lords particularly abovewritten, to have Bruiked and possessed their Ranks and Places, according as they are here Written, Ranked, and set down in Order following, Viz. Lindsey, Forbes, Glames, Fleyming, Salton, Grace, Ochiltrie, Cathcart, Carlyl, Sanchar, Yester, Semple, Sinclar, Harres, Elphingston, Maxwel, Oliphant, Lovat, Ogilvy, Borthwick, Rosse, Boyd, Torphichen, Pasley, Newbottle, Thirlestain, Spiny, Roxburgh, Lindors, Lowdoun, Dirleton, Kinloss, Abercorn, Balmerinoch, Murray of Tillibairn, Colvil, Culrosse, and Scoon. And Decerns and Ordains, all Earls, and Lords particularly abovewritten, to Keep, Bruik, and Possess their Ranks and Places in all times coming, according to the Orders and Ranks abovewritten, now set down, Appointed and Prescrived to them, and to make no Question, Trouble, nor Plea in this Matter, to any appointed to have place and rank in the manner foresaid. But prejudice always to such Person or Persons, as shall find themselves or their Interests prejudged be their present Ranking to have recourse to the ordinar Remeed of Law, be Reduction before the Lords of Council and Session of this present Decreit recovered; and of their due Place and Ranks, be Production of more Ancient and Authentic Writs, nor has been used in the Contrary of this Process, Summonding all such persons thereto, as shall think themselves wrongously Ranked, and placed before them: And in the mean time this present Determination, to stand in full Force, Strength, and Effect, ay and while the Party Interested and Prejudged obtain Lawfully an Decreit before the saids Lords of Council and Session, as said is; And Ordains these presents to be Insert and Registrat in the Books of Privy Council, and an Authentic Extract thereof to be delivered to the Clerk Register, and another Extract to be delivered to the Lyon-herauld, to be kept be them for the better knowledge and Information of every man's Ranks and Place, when the Occasion of their Ranking shall be Presented. Extract de libris Actorum Secreti Consilii, Act. 8. D. N. Regis, Per me Jacobum Primrose Clericum ejusdem sub meo signo & subscriptione manualibus.  
It is fit to know, that the Earl of Dowglas was by Act of Parliament, Declared to have the first Vote in Parliament, and the Carrying of the Crown, and leading of the Vanguard; But K. james did in anno 1582. prevail with that Earl, to suffer the Duke of Lennox to carry the Crown for that time, and in anno 1632. There is a Charter granted to the said Earl in life-rent, and to his Son in Fee, cum omnibus privilegiis, etc. & specialiter cum privilegio aciem ducendi, Coronam gerendi. etc. But in anno 1633. the said Earl being Created a Marquis, it is Declared by Act of Council, that he did quite privilege of having the the first Vote in Parliament, upon his Promotion; And yet the Marquis of Dowglas still pretends, that any such Renunciation could not have prejudged the Family, since the Granter of that Renunciation was only a Life-renter, his son having been in Fee.  
I find there are some titles of Nobility in England annexed to places, so that whoever is in possession of that place, has right to the tittle: Thus it was found in the case of the Lord Abergavenny, that he in possession of the Castle, aught to have the title, albeit he be not Heir of Blood. Their Reason is, because it is a Barony-marchiere, and it has been found, that Baronies and Castles situate upon the Borders of Scotland and Wales, belong always to the Owners; the words of the Tenor being per servitium Patriae custodiendae. It is alleged, as one of the Reasons in that caise, that the Owners of lands, holding in capite & per Baroniam, have Precedency, albeit they be not next Heirs.  
The next Degree to the Earls is that of Viscount, in Latin Vicecomes; as being of old Lieutenant to an Earl, Vicecomites, olim dicibantur, quibus castri Dominus Vices suas committebat seu executionem jurisdictionis. But afterwards Our King gave not the Government of Counties, or Shires, to Earls, but appointed Sheriffs who depended upon their own Nomination; and were therefore called Vicecomites. In Bretagn Barons take place from Viscounts; But there are no Viscounts in Germany, Bourgrave being in their place, Speculat. tit. de Vicecometatu & la Roque de nobilit. C. 83. We had no Viscounts in Scotland before 1606. for by the aforesaid Decreet the Lord is declared next to the Earl.  
Barons according to Spelman, sunt Clientes Feodales, & Vassalli Capitales, qui Pagos, Vrbes, Castra, vel eximiam ruris portionem, cum Iurisdictione acceperunt a Rege; And the word according to him comes from Virro or Vi, i e. robur belli: But it is more probable that it comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, gravis, they being chosen wise, and Discreet men. With Us, all are called Barons who hold their lands of the King in libera Baronia, and who have power of pit and gallows; and of old they were all heritable Members of Parliament, as all Barons in England are, as is clear by Act 52. Parl. 3. ja. 1. whereby all Barons are appointed to come to Parliament; and though this Act may seem to be abrogated by the 101. Act, Parliament 7. james the first, whereby the Barons of each Shire are allowed to choose two wise men to Represent them, which is the custom at this day; Yet it is observable, that though by that Act they may for their conveniency choose two, yet they are by no express Law discharged to come in greater numbers: And by the 78. Act Par. 6. ja. 4. no Baron that had below the Rent of 1OO. Marks, was to be compelled to come to Parliament, unless the King particularly wrote for him. And when Taxations were laid on by the Council, I find by the old Records, as particularly in October 1562. that Noblemen and Burgesses are called, but no Barons: the Barons and Noblemen having been then represented promiscuously, and that long after the Act of Parliament, allowing them to send Commissioners. And this is the Reason, why Our old Barons, who are not Lords, and hold only their lands in free Barony, have supporters in their Achievement; and that with some reluctancy they yield the Precedency to Knights-baronets', they being Originally heritable Counselors to the King as Members of Parliament, and not Debarred. The several Degrees of Nobility before Treated of, did always bear their respective Coronets, as in England, excepting the Lords, who had no Coronet till the year 1665. There being a Warrant under His Majesty's hand, in june 1665. Allowing to the Barons or Lords of Parliament in Scotland, a certain Crimson Velvet Cape, with a Golden Circle, decored with six Pearls on the Top, equally distant one from another, which is the same with the Baron's Coronet in England: But the figure of this Coronet on the margin of the principal Signator, is done far contrare to the words in the Body; The same having points like to that of the Earls, which has certalnly been a mistake and ignorance in the Painter, and aught to be adverted to be the Lion, and Heralds: This Warrant is Registrat in the books of Council, and in the Lion Books.   
I have here set down for the Readers further Satisfaction, a List of all the Nobility at present in this Nation, their Surnames and Principal Titles, And Titles of their Eldest Sons; With such Officers as have Precedency be Virtue of their Offices.  

The Duke of Albany, only Brother to His most Sacred Majesty.  
Lord Chancellor,  
Lord Thesaurer,  
Lord Precedent of the Privy Council,  
Lord Privy-seal,  
Lord Secretary, above all of his degree.   
⁂ Nota. Stuart Duke of Lennox, was the premier Duke, but this Family is lately extinct.  

DUKES.  
Hamilton Duke of Hamilton, His Eldest Son. Earl of Arran,  
Scot Duke of Buccleuch, His Eldest Son. Earl of Dalkeith,  
Maitland Duke of Lauderdale, His Eldest Son. Earl of Lauderdail,  
Lenos Duke of Lennox. His Eldest Son. Earl of Darnly.   

MARQUESSES.  
Gordon Marquis of Huntly, His Eldest Son. Lord Gordon,  
Dowglas Marquis of Dowglas, His Eldest Son. Lord Angus,  
Graham Marquis of Montrose, His Eldest Son. Lord Graham,  
Murray Marquis of Athol. His Eldest Son. Lord Murray.   

EARLS.  
Campbel Earl of Argyl, His Eldest Son. Lord Lorn,  
Lindsay Earl of Crawsurd, His Eldest Son. Lord Lindsay,  
Hay Earl of Errol, His Eldest Son. Lord Hay,  
Keith Earl Marischal, His Eldest Son. Lord Keith,  
Gordon Earl of Sutherland, His Eldest Son. Lord Strathnaver,  
Areskin Earl of Marr, His Eldest Son. Lord Areskin,  
Graham Earl of Airth, and Monteith, His Eldest Son. Lord Kilpont and Kilbryd▪  
Lesly Earl of Rothes, His Eldest Son. Lord Lesly,  
Dowglas Earl of Morton, His Eldest Son. Lord Aberdour,  
Areskin Earl of Buchan, His Eldest Son. Lord Auchterhouse,  
Cuningham Earl of Glencairn, His Eldest Son. Lord Kilmawrs,  
Montgomery Earl of Eglington, His Eldest Son. Lord Montgomery,  
Kennedy Earl of Cassils', His Eldest Son. Lord Kennedy,  
Stuart Earl of Murray, His Eldest Son. Lord Down,  
Maxwel Earl of Nithisdale, His Eldest Son. Lord Maxwell,  
Seton Earl of Winton, His Eldest Son. Lord Seton,  
Livingston Earl of Linlithgow, His Eldest Son. Lord Livingston,  
Home Earl of Home, His Eldest Son. Lord Coldingham,  
Drummond Earl of Pearth, His Eldest Son. Lord Drummond,  
Seton Earl of Dumfermling, His Eldest Son. Lord Fyvie,  
fleming Earl of Wigton, His Eldest Son. Lord fleming,  
Lion Earl of Strathmore, and Kinghorn, His Eldest Son. Lord Glames,  
Hamilton Earl of Abercorn, His Eldest Son. Lord Paslie,  
Ker Earl of Roxburgh, His Eldest Son. Lord Ker,  
Areskin Earl of Kelly, His Eldest Son. Lord Pettinweem,  
Hamilton Earl of Haddington, His Eldest Son. Lord Binning,  
Stuart Earl of Galloway, His Eldest Son. Lord Garlies,  
Mackenzie Earl of Seaforth, His Eldest Son. Lord Mackinzie,  
Ker Earl of Lothian, His Eldest Son. Lord Newbottle,  
Hay Earl of Kinnoul, His Eldest Son. Lord Duplin,  
Campbel Earl of Lowdown, His Eldest Son. Lord Mauchla●,  
Crichton Earl of Dumfries, His Eldest Son. Lord Crichton,  
Dowglas Earl of Queensberry, His Eldest Son. Lord Drumlanerick,  
Alexander Earl of Striveling, His Eldest Son. Lord Alexander,  
Bruce Earl of Elgin, His Eldest Son. Lord Kinlosse,  
Carnagie Earl of Southesk, His Eldest Son. Lord Carnagie,  
Stuart Earl of Traquair, His Eldest Son. Lord Linton,  
Ker Earl of Ancram, His Eldest Son. Lord Nisbets,  
Weems Earl of Weems, His Eldest Son. Lord Elcho,  
Ramsay Earl of Dalhoussie, His Eldest Son. Lord Ramsay,  
Ogilvy Earl of Airly, His Eldest Son. Lord Ogilvy,  
Ogilvy Earl of Findlator, His Eldest Son. Lord Deskfoord,  
Dalziel Earl of Cranwath, His Eldest Son. Lord Dalziel,  
Livingston Earl of Callender, His Eldest Son. Lord Almond,  
Lesly Earl of Leven, His Eldest Son. Lord Balgonie,  
Ruthven Earl of Forth, His Eldest Son. Lord Ettrick,  
johnston Earl of Anandale, His Eldest Son. Lord johnston,  
Maule Earl of Panmure, His Eldest Son. Lord Maule,  
Murray Earl of Dysert, His Eldest Son. Lord Huntingtour,  
Hay Earl of Tweeddale, His Eldest Son. Lord Yester,  
Carnagie Earl of Northesk, His Eldest Son. Lord Rosehill,  
Bruce Earl of Kincardin, His Eldest Son. Lord Bruce,  
Lindsay Earl of Balcarras, His Eldest Son. Lord Balneal,  
Dowglas Earl of Forfar, His Eldest Son. Lord Wendal,  
Midleton Earl of Midleton, His Eldest Son. Lord Clearmont,  
Scot Earl of Terrace, His Eldest Son. Lord Alemoor,  
Gordon Earl of Aboyn, His Eldest Son. Lord Glenlivet,  
Boyd Earl of Kilmarnoch, His Eldest Son. Lord Boyd,  
Cochran Earl of Dundonald, His Eldest Son. Lord Cochran,  
Dowglas Earl of Dumbritan, His Eldest Son. Lord Dowglas of Attrick,  
Keith Earl of Kintore, His Eldest Son. Lord Inverury,  
Sinclar Earl of Caithnes. His Eldest Son. Lord Berrendule.   

VISCOUNTS.  
Cary Viscount of Faulkland.  
Constable Viscount of Dumbar,  
Murray Viscount of Stormont,  
Gordon Viscount of Kenmore,  
Arbuthnet Viscount of Arbuthnet,  
Crichton Viscount of Frendraught,  
Seton Viscount of Kingston,  
Macgil Viscount of Oxenford.  
Livingston Viscount of Kilsyth,  
Osburn Viscount of Dumblane,   

LORDS.  
Forbes Lord Forbes.  
Fraser Lord Salton,  
Grace Lord Grace,  
Cathcart Lord Cathcart,  
Sinclar Lord Sinclar,  
Dowglas Lord Mordington,  
Semple Lord Semple,  
Elphingston Lord Elphingston,  
Oliphant Lord Oliphant,  
Fraser Lord Lovat,  
Borthwick Lord Borthwick,  
Ross Lord Ross,  
sandiland's Lord Torphichen,  
Lesly Lord Lindors,  
Elphingston Lord Balmerinoch,  
Stuart Lord Blantyre,  
Areskin Lord Cardross,  
Balfour Lord Burleigh,  
Drummond Lord Madderty,  
Cranston Lord Cranston,  
Melvil Lord Melvil,  
Napier Lord Napier,  
Fairfax Lord Cameron,  
Richardson Lord Crawmond,  
Macky Lord Rae,  
Forrester Lord Forester,  
Forbes Lord Pitsligo,  
Mackleland Lord Kircudbright,  
Fraser Lord Fraser,  
Hamilton Lord Bargeny,  
Ogilvy Lord Bamff.  
Murray Lord Elibank,  
Galloway Lord Dunkel,  
Falconer Lord Halkerton,  
Hamilton Lord Bethaven,  
sandiland's Lord Abercromby,  
Carmichal Lord Carmichael,  
Sutherland Lord Duffos,  
Rollo Lord Rollo,  
Ruthven Lord Ruthven,  
Colvil Lord Colvil,  
Mackdonald Lord Mackdonald,  
Bellenden Lord Bellenden,  
Lesly Lord Newwark,  
Rutherfurd Lord Rutherfurd,  
Ker Lord jedburgh,  
Weems Lord Bruntisland.   

¶ It is to be observed, that the eldest Sons of Viscounts and Lords are designed Masters by their Father's Titles.  
Lord Thesaurer-deput,  
Lord Register,  
Lord Advocate,  
Lord justice-clerk.   
This is the Precedency stated by the present Rolls of Parliament, albeit it is not acquiesced in by all the Nobility: For the Earl of Sutherland contends with all the Earls who are ranked before him, and generally such as are dissatisfied with these Rolls, do protest whilst the Rolls are called, against such as they conceive are unjustly ranked before them. Sometimes also the Son has a different Precedency, from what was possessed by his Father; As the Earl of Lothian, who now as succeeding to his great Grandfather by the Mother, comes to have his Precedency next to the Earl of Wigton, though his Father taking place by a new Patent was ranked as in the above written Rolls. The Justice General pretends to the same precedency with the Lord Chief Justice of the King's Bench in England, by a report made by the Lord Thesaurer in the King's name, the 17. june 1637. but neither is the Letter to which this report relates extant, nor has he been in possession since. And it is fit to observe, that notwithstanding of what is said before, page 42. (by a Servants mistake) that the Lord Privy-seal takes place with us as in England.  
The Order of Baronet in Scotland was erected for advancing the Plantation of Nova Scotia in America, and for settling a Colony there, to which the Aid of these Knights was Designed. The Order was only intended be K. ja. 6. before his Death, for in his first Charter of Nova Scotia, in favours of Sir William Alexander, 10. Septem. 1621. And in another Charter granted to Sir Robert Gordon of Lochinvar of a part of Nova Scotia, Designed the Barony of Galloway, 8. Novem. 1621. there is no mention made of this Order: So that the same was only erected by K. Charles 1. anno 1625. In the several Patents granted to Baronents, His Majesty did dispone to each of these Knights a certain portion of land in Nova Scotia, erecting the same in a free Barony with great and ample privileges, unnecessary to be insert here. And moreover, for their encouragement, did Erect, Create, Make, Constitute, and Ordain that Heritable State, Degree, Dignity, Name, Order, Title, and Style of Baronet, to be enjoyed be every of these Gentlemen who did hazard for the good and increase of that Plantation: And so preferred them to that Order and Title, Creating them and their Heirs Male heritable Baronet's in all time coming, with the Place, Preeminency, Priority, and Precedency in all Commissions, Breeves, Letters-patents, Naming, and Writes, and in all Sessions, Conventions, Congregations and places, at all times and occasions whatsomever before all Knights, called Aequites aurati, all lesser Barons commonly called Lairds, and before all other Gentlemen: Excepting Sir William Alexander His Majesty's Lieutenant of Nova Scotia, who (with his Heir, their Wives and Children conform) is not only excepted in each of these Letters-patents granted to the Knights, his Consorts; But likewise the Charter granted to himself be King Charles 1. 1625. did bear expressly this exception and provision: As also, excepting Knights-Bannerets who should be Created under the Royal Standard in His Majesty's Army, and in open War, the King himself being present, and that during the Bannerets life-time only: And with Precedency before all of the same Order whose Patents are of a posteriour date. His Majesty did moreover Declare, and Ordain, That the Wives of these Knights, and of their Heirs Male, should have the Precedency aswell after as before the deaths of their Husbands, if they should happen to survive, before the Wives of all those of whom the Knights, Baronet's, and their Heirs Male had the Precedeny, and even before the Wives of Knights-Bannerets before excepted; (the Degree of Baronet being heritable) And also that the Children Male and Female of the Baronet's, should take place before the Bairns Male and Female respectively, of all persons of whom the Baronet's and their Heirs Male had the Priority: And likewise before the Children of the Bannerets; and that the Wives of the Sons of the Baronet's, and of their Heirs Male, should preceded the Wives of all persons whom their Husbands might preceded, and that aswell their Husbands being dead as living. And further, His Majesty did Declare, and Promise, That whensoever the eldest Sons and appearand Heirs Male of the Baronet's should attain to the Age of twenty one years, they should be by His Majesty and his Successors created, Equites aurati, or Knights Bachelors, without payment of any Fies or Deuce for the same, providing they should desire it. But here it is to be observed, that some of the eldest Sons of Baronet's pretend to the title of Knight at their Majority, be virtue of this clause, without any previous desire or dubbing, which certainly is an error, for if they will not be at the pains to desire it of His Majesty, or His Commissioner, they should not assume it. Likeas His Majesty did Declare and Ordain, That the Baronet's and their Heirs Male should as an additament of Honour to their Armorial Ensigns, bear either on a Canton or Inescutcheon in their option, the Ensign of Nova Scotia being argent, a cross of St. Andrew azure, (the Badge of 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 conjoined, 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 Successors Armies in the middle Battle, 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, Entitled, 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 subjoined thereto in all Letters-patents, and other writes whatsomever, as a necessary addition of Dignity, and that each of them should be entitled, 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 Baronet's 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 Successors should never Create, nor Erect in time coming any other Dignity, Degree, Style, Name, Order, Title, or State, nor should give the Priority or Precedency to any Person or Persons, under the Style, Degree, and Dignity of a Lord of Parliament of Scotland, which should be, or should be presumed to be Higher, Superior, 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 privileges 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 Majesty's 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 Privileges, Precedencies, etc. of the former Baronet's. And in the year 1629. His Majesty did allow these Baronet's a particular cognisance, which will be best known by the copy 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 Counsellor, Right trusty and well beloved Cousins and Counselors, and right trusty and well beloved Counselors, 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 divers Gentlemen of good quality. And seeing 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 Baronet's 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 Authorise and Allow, as by these presents, for Us and Our Successors, We Authorise and Allow the said Lieutenant and Baronet's, 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 saltire azure, 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 burgh's of Our Kingdom, and such other places as you shall think necessary, 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 Baronet's, 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, their 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 Lion King at Arms, and Heralds, there to remain ad futuram rei memoriam; And that all parties having intress, may have authentic 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 Warrant, 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 james the sixth, for advancing the plantation of Ulster in Ireland, and these Knights have Privileges and Precedency 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 presence of King james, it was determined in favours of the younger sons of Viscounts and Barons; But at the same time it was declared, That such Bannerets as should be made by His Majesty or Prince of Wales under the King's Standard, displayed in an Army Royal, As also, the Knights of the Garter, Privy Counselors, Master of the Court of Wards and Liveries, Chancellor and Under-Thesaurer of the Exehequer Chancellor of the Duchy, Chief Justice of the King's Bench, Master of the Rolls, Chief Justice of the Common-pleas, Chief Barons of Exchequer, and other Judges, and Barons of the degree of the Coif, should have place and precedency both before the younger sons of Viscounts, and Barons, and before all Baronet's: by which some alterations may appear from the Ranking appointed by Henry the fourth.  
Beside what has been formerly observed in the description of Knights, Baronet's. I find that of old a Banneret (or a Ban-rent) has been with us a title higher than a Baron, for by Act 101. Parl. 7. ja. 1. Baron's may choose their own Commissioners, but Bishops, Dukes, Earls, Lords, and Ban-rents are to be summonded to Parliament by the King's special precept; And it is probable that these Ban-rents were Knights of extraordinary reputation, who were allowed to raise a company of men under their own Banner, but now it is commonly taken for such as are Knighted by the King or Prince under the Royal Standard in time of War. But I conceive that those could not now sit in Parliament upon the King's precept, the former Act of Parliament being in desuetude: They have the precedency from Baronet's, though their Wives have not, this being but a temporary Dignity, and the other an heritable.  
Barons in England are Lords with us, but a Baron with us is properly he who has power of pit and gallows; And yet of old I conceive that Lords and Barons were the same, for the Statutes of K. Robert 1. bear to be made in his Parliament holden at Scoon, with Bishops, Abbots, Priors, Earls, Barons, and others his Noblemen of his Realm: And in Our old Original Acts of Parliament, I find that the Lords and Barons are put in one column undistinguished and under the common name Barons; And in the first Parliament of K. ja. the 4th. I find the Master of Glames, i. e. the Lord Glames, eldest son sitting inter Barones. Now the Lords are called the Great Barons, and the rest are called Small Barons, in the 101. Act. 7. Parl. ja. 1. and ever since; But yet I find by the 166. Act. 13. Parl. ja. 6. every Earl or Lord pays 2000 pounds, for Lawborrows, and every great Baron 1000 pounds; but by great Baron there is meant a Baron of a considerable estate, because that Act was to proportion the Surety to be found to the estate of him who finds the Surety.  
The old Barons (or Lairds) amongst us especially where they are Chiefs of Clans, or the Representatives of old Families that were Earldoms, as Pitcurr is of the Earl of Dirleton, and as Chief of the name of Halyburton, have never ceded the Precedency to Knights-baronets', much less to ordinar Knights. Though the other pretend that a Baron is no name of Dignity, and that Knights-baronets' have a special privilege, that there shall be no degree betwixt them and Lords, except the Bannerets; And though militia non est per se dignitas, Chassan. fol. 344. yet generally it is believed, that next to Knights-baronets' succeed Knights-Batchelours, and next to them our Lairds, or Landed-Gentlemen, though a Laird in effect is but the corrupt word of a Lord.  
Amongst such as profess Sciences, the Ranking goes thus uncontravertedly, 1 o. Such as profess Theology. 2 o. Such as profess the Canon-Law. 3 o. The Civil-Law. 4 o. Philosophy. 5 o. Medicine. 6 o. Rhetoric. 7 o. Poescy. 8 o. History. 9 o. Grammar. 10 o. Logic. 11 o. Arithmetic. 12 o. Geometry. 13 o. Music. 14 o. Astronomy; Chassan. de gloria mundi pars decima. And amongst these, such as are Doctors preceded these that are not, and amongst Doctors, the priority goes by Age.  
In Towns, These who inhabit Cities are preferred to such as inhabit burgh's, and generally those in the Metropolitan, or capital. City are preferred to all the rest: And those who have born Magistracy, are even when their Magistracy is over, preferred to all others. And so far is this Precedency observed, that 1 o. A younger Alderman or Bailie takes not Precedency from his Senior, because he is Knighted, or as being the elder Knight, as was found in the case of the Alderman Craven, who though all the rest of the Alderman were Knighted at the Coronation of King james, kept the precedency formerly due to him as Signior Alderman. But though this hold not only amongst Aldermen, but that even all Knights of the Country, being Burgesses of a Town, do cede to these who have been their Magistrates in it, as to public meetings relating to the Town; Yet it is doubted whether such a Knight will be obliged to give place to an Alderman, or Bailie in a neutral place. But it is determined in the Herald's Office of England, that all such as have been Mayors of London, that is to say, Provosts with us, do take the place of all Knights-batchelours every where, because they have been the King's Lieutenants.  
It is there likewlse remarked, That Sir john Crook Sergeant at Law, was Knighted before any other Sergeant his Ancient, and standing upon Precedency by reason of his Knighthood, It was adjudged against him by the Judges, viz. that he should take place according to his Serjeancy, and not after his Knighthood, yet his wife took her place of a Lady before other Sergeants wives.  
The Members of Courts do take place amongst themselves according to the precedency of the Courts, where they serve; as the Clerks of the Privy Council take place of the Clerks of the Session.  
In Families likewise, the Chief of the Family takes place of any Gentleman of the Family: And though generally it be believed, that Gentlemen have no precedency one from another, yet Reason and Discretion do allow that a Gentleman of three Generations, should cede to a Gentleman of ten, if there be not a very great disparity betwixt their Fortunes, and that for the same Reason almost, that a Gentleman of three Generations claims precedency from any ordinary Landed-man, who was newly acquired his lands.    

CHAP. IX. The Precedency due to Women.  
WOmen before their Marriage have Precedency by their Father, but there is this difference betwixt them and the Male-childrens, that the same Precedency is due to all the Daughters that is due to the eldest, though it is not so amongst Sons; and the reason of the difference seems to be, that Daughters would all succeed equally, whereas the eldest Son excludes all the rest; But if this be the adequat and true reason, then where the Estate and Honours are provided to the eldest Daughter only, excluding the rest, they ought not to have the same Precedency that the eldest Sister has. And therefore I ascribe this difference rather to the custom of Nations merely founded upon the respect due to that Sex.  
During the Marriage, the Wife regularly participats of the condition of her Husband by the Civil Law, and Law of Nations, L. 3. C. de Dignitat. Mulieres Honore maritorum erigimus, genere nobilitamus, and since she was to be sharer in his misfortunes, the Law thought it just that she should be sharer in his Advantages; And the Wife by the Canon Law is called Socia divinae & humanae domus, and L. Foeminae, ff. de Senat. it is said, that Foeminis dignitatem clarissimam mariti tribuunt: But yet this rule has some exceptions, for though in France the wives of those who have their Dignities by Offices, enjoy the same Precedency with their Husband, together with a communication of his title, and thus they say there, Madam la Chanceliere, Madam la Praesidente: Yet it is not so with us, who think, that Offices are bestowed on Husbands upon a personal account, which is not communicable to their Wives; and yet in some Temporary Dignities, such as that of a Knight-batchelour, the Wife participates of the Husband's title and precedency: Though I find by the Herald's Records, that this proceeded originally, rather from Courtesy than from Law, and that of old a Knight's wife enjoyed only his Honours during the Spousals, nor were they to be called in Law Dame Alice, or Dame Catherine, etc. after the Marriage was dissolved.  
By our Law likewise, If a woman have Precedency by her Birth, or Descent, she retains still the same, notwithstanding she marry a person of inferior dignity, contrare to the Rules of the ivil Law; And thus if the Heiress of a Duchy, or Earldom, marry a Gentleman, she has still the precedency due to a Duke, or Earl, albeit by the Civil Law, L. 8. de Senat. it be expressed that Parents donee Plebeiis nuptiis fuerint copulatae, etc. the reason whereof is as Faber observes upon that Law, because it were most absurd that the Wife should have more dignity than her Husband; and thus Livius observes, that Virginia daughter to a Patrician, or noble Roman, was debarred from the Honour's due to her Birth, because she had married a Plebeian; And it seems indeed that he being her Head, it is most unnatural that any part should be more honourable than the Head: Nor can there be any thing more contrare to that superiority, given both by the Law of GOD and Man to Husbands, nor any means fitter to make a Wife despise her Husband than this is. But I think this precedency has arisen from the Feudal Law, for the wife having once a noble Fee, she cannot forfeit the same by her Marriage, and therefore she must retain the dignity that is annexed to it, which is incommunicable to her Husband, because he is not in Fie. But it is observable, that if the daughter of a Nobleman marry another Nobleman, she will lose the precedency due to her by her Birth, though she would not have loosed it if she had married a Gentleman, and the reason of this seems to be, because by marrying a Nobleman she receives another Feudal dignity, which suppresses the first.  
I find it observed in Judge Cook. lib. 12. fol. 112. that if a Baron dies, having divers daughters, the King may confer upon either of them the title; And thus the Lord Cromwell having died without heirs Male, Burchier who married the youngest daughter was made Lord Cromwell, of which we have no example in Scotland; for by our Law, if the title descend to Females by the Patent, the eldest only can succeed to the title, but if it descend not by the Patent to Heirs Female, than the King may admit neither to the title, or either as he pleases.  
After the Husband's decease, the Wife did by the Civil Law enjoy her Husband's precedency during her Widowity, but if she marry to a person of inferior quality, she loses that Precedency, L. 8. de Senat. which holds with Us and in England; And yet sometimes the King allows her the same Precedency, by a Letter, as he does also to the daughters of Dukes, and others who have lost their Precedency by Marriage, which Letters, or Warrants, are direct to the Herald's Office, and Registrated there. And the Queen never loses her former Dignity though she marry the meanest person after the King's death. And generally, all the privileges due to the King, are communicated to the Queen, per L. 31. ff. de Leg: Augusta, autem Legibus soluta non est, Principes tamen eadem illi privilegia tribunut quae ipsi habent. Notwithstanding whereof, Lawyers think that her Bastards are not Noble as the Bastards of Kings, nor does the Womb ever nobilitate. The Country of Campaigne in France only excepted, where it is sufficient that either the Father or Mother be Noble, which was allowed to the Ladies of that Country, upon the kill of all the Nobility at a great fight, Papon. de Nobles. num. 3. By the Civil Law also, a Widow living lewdly, loses her former dignity, Arg. § Fin. in authent. de restit. but this holds not with us, vide Bon. de Curt. de Nobilitate, cap. 12. num. 194.  
It has been doubted, whether a mean woman marrying a Nobleman, retains the privilege due to her by her Husband, who has been degraded by forfeiture, or otherways, and Corbin citys a decision, 27. August. 1698. whereby it was resolved, that she retains still her former privilege, since crimes are personal, which is also our Custom.  
It has been likeways doubted abroad, whether a Noblewoman marrying a Plebeian, and thereby losing the Precedency due to her Birth, if she marry a Gentleman in the second Marriage, she will thereby recur to her first Dignity, the person be whom she lost the first Dignity being dead; And it was found that she will not, for in Law that which is once extinct does not revive; and therefore Women in such cases take Letters of Restitution, as they call them, or procure a warrant from the King, for that effect as the custom is with us, ut interveniet Principis restitutio quae plebecitatis maculam abstergat, Traitte de la noblesse, pag. 324. But there would be no place for this question here, since with us a Noblewoman would not lose her Precedency by marrying a Plebeian, but the doubt behooved to be thus stated with us, viz. Whether a Noblewoman marrying a Nobleman of an inferior degree, would recover her first dignity, she marrying thereafter a Gentleman: Or, whether a Knight-baronets' Lady marrying a Plebeian, could thereafter recover her dignity if she marry a Gentleman. For I conceive a Knight-baronets Lady, does not like a Noblewoman, retain her Precedency when she marries a person of inferior quality, and I think neither of them would recover their former dignity without a special Warrant.  
I find that the Commissioners appointed to regulate Queen Ann's Funerals, did 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 Queen's Chamberers should for the present Funeral go before Countess' women, without prejudice to Countess' women, at any time thereafter.  
It is fit to observe, That the Wives and Daughters of all Dukes, Marquesses, Earls, etc. do take the same place that the Husbands and Sons do, conform to the Precedency formerly expressed, pag. 35. And I find in the Herald's Office of England, an establishment settled thus amongst women, by jasper Duke of Bedford, and other Noblemen, by warrant from Henry the fourth.  

The Wives of Dukes of the Blood Royal.  
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 Earls.  
The Daughters of Earls.  
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 Earls.  
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 Queen's 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 preceding degree; Thus the Lady of the eldest Son of a Marquis precedes the Daughter of a Marquis, and both preceded the Ladies of Duke's younger Sons: Item, the Wife of the next degree as a Countess, precedes the Lady of the eldest Son of the preceding degree as of a Marquis, and the Daughter of a Marquis.  
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 Marquis of Dowglas Lady would give place to the Marquis of Huntlys Lady, yet the Wife of the Marquis of Dowglas eldest Son would take place from the Marquis 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 Earls: Yet since that Letter written by King Charles the first at his Coronation, we follow the custom of England, in preferring the Earl's Daughter, who takes place immediately after her eldest Brothers wife.  
5 o. Though the Daughter of a Marquis 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 Marquis, than 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 Counselors and Judges, Wives of the younger Sons of Viscounts, and of Lords or Barons, the Wives of Baronet's, the Wives of Bannerets, the wives of the Knights of the Bath, and the Wives of Knights-batchelours, etc. as in the former List.   

Some considerable Questions concerning Precedency, Resolved.  

QUESTION 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 Commonwealth did sometimes admit of a Dictator, who had indeed the power of a King, yet they remained still the same Commonwealth; 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 judiciis & 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 Conquered by a Stranger, and by a Strange and Foreign 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 only to be Computed from William the Conqueror, 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 Country do 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.   

QUESTION II. Whether a Kingdom becoming a Commonwealth, or a Commonwealth 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 Republic, having become a Monarchy or Principality, ought it to Retain the Precedency due to the former Commonwealth? And that it ought to Retain the same Precedency may be Argued, Because, when one thing is surrogate in the place of another, that which is surrogate ought to have the same privilege with that in whose place it is surrogate, surrogatum subit naturam surrogati; But so it is, that the subsequent Principality is surrogate in place of the former Commonwealth, and therefore aught to have the same Precedency: this Reason is likewise seconded by a Decision of Charles the fifth, who in the Debate betwixt the Duke of Florence, and the Duke of Ferrara, did prefer the Duke of Florence, because the Republic of Florence was formerly preferred to Ferrara.  
From this Decision some would distinguish betwixt the Case, where a Citizen of the former Commonwealth is preferred by common consent of his fellow Citizens, in which case they who Governed formerly still Govern, Because they choose the new Duke, Prince or King: And the case wherein a Stranger comes in and Conquers, in which case the former Government is absolutely Altered, and none of those who Governed formerly continue to Govern: Nor does the Argument of Surrogation hold in this case, because that Argument only holds where one thing is surrogate to an other by common consent, and where the Reason of the Privilege pleaded in the one case remains in the other, neither of which can be alleged where there is a Conquest; because there, neither is there a Consent, nor does the Government, nor State remain the same, And consequently, ought not to have the same Precedency, seeing the sameness of Precedency depends upon the sameness of the State, which ought to have the Precedency.  
The same is likewise to be concluded, where One of the same City or Republic Usurps the Government; For in that case the former Arguments hold: And though Aristotle libro quinto Politicorum says, eundem Statum Reipublicae manere, ubi rem suam & summam Resbublica● ante libera civi alicui suo regendam deinceps comittit, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Yet this requires two conditions, The one is, that one of the Citizens Govern; and the other is, That the Government be transmitted to him by the common consent of those his fellow Citizens who Governed formerly; An eminent Example thereof We find in that famous Lex Regia, mentioned L. 1. ff. de Const. Princ. whereby the Romans transmitted all the power they had to the Emperor, quae de Imperio lata est qua populus ei & in eum omne suum Imperium & potestatem contulit, and upon this account it is, that the Roman Emperors pretend the same Precedency that was due to the Commonwealth of Rome, since the Commonwealth did surrender and transmit to them their power.  
The next Branch of the Question is, Whether a Kingdom being turned into a Commonwealth, aught to have the same Precedency that was due to the former Kingdom? And it would appear that it ought not, since in becoming a Commonwealth, it is Degraded from its former Dignity, Commonwealths being by the consent of all Nations postponed to all Kings, or Crowned-Heads; Nor does the Argument of Surrogation hold in the matter of Precedency, where there is not only a substantial Alteration, but a Degradation: The former Argument of Surrogation does not likewise take place, where there has an intermediate Impediment interveened▪ as for Instance, Though Spain had been formerly a Kingdom, and though England was really a Kingdom of old, yet both these having become afterwards Provinces to the Roman Empire, they cannot Reassume the Dignities and Precedency due to them before they were subdued, and became Tributaries; since that Degradation was a medium impedimentum, as Lawyers call it, Which hindered the present condition of their Kingdom to be drawn back to its old State: A thousand instances of which may be given in other cases, and even in the matter of Precedency, If a Family be Degraded, and continue so for a long time, if though they be thereafter restored; Or if an Earl should resign his title in the King's hands, and so extinguish his title, though he were restored, yet he would not be restored to his former Precedency, in prejudice of those who had acquired titles medio tempore.   

QUESTION III. Whether he who is Elected to a Dignity, aught to have Precedency thereby, as if he were Actually Admitted?  
This question has been often Agitated, and may be of great Use amongst persons of all Degrees: It was first Debated in anno 1521. betwixt the Ambassadors of Charles the fifth, who was then Elected Emperor, and the Ambassadors of Francis the first King of France, who alleged, that though Charles the fifth was Elected Emperor, yet not being Crowned and Anointed, the Election being but an incomplete Act, could not give him Preference; and that it could not was Argued from these Reasons. 1 o. Before the Emperor's Admission and Consecration, he is not called Emperor, but only King of the Romans, and therefore he ought not to have the place as Emperor, for the King of the Romans is inferior to the Emperor, and the Inferior cannot have the Superiors place. 2 o. If Election could give the Precedency, there needed not any further Solemnity; For by the Election, the person Elected would be Emperor, for none can have the Emperor's place but the Emperor. 3 o. That which is Imperfect cannot operat as much as that which is perfect▪ L. Aedificia § perfectissime ff. de edil. edict. and that which is Imperfect is judged in Law to be no more, then if it were not, Imperfectum, & nullum idem sunt: And therefore as he could not have Precedency, if there were no Election, so neither can he have it, where there is but an incomplete Election. 4 o. Where there are two Degrees subordinat one to another, the Inferior Degree cannot aspire to that which is due to the Superior; But so it is, that Election is but subordinat to Admission, Ergo, it cannot Operat as much as Admission. Notwithstanding of all which, I find that Gothofred. and others decide for the Emperor, and are of opinion that an Election has in it the Radical Power and Force of Admission, and so gives as much Precedency as Admission does; Yet with Us, We see that an Elect Bishop takes not the same place, that is due to him after he is Admitted: And therefore the Distinction would be made here betwixt such an Election, as transfers all the power that Admission can, as We see in the Emperor, King of Poland, and others, who can receive no more Power after they are Elected, and delay their Coronation and other ceremonies for their own conveniencies; And the case of Bishops and inferior Magistrates, who are ofttimes to receive some further power beyond their Election; and so, their Election not being equivalent to an Admission, it gives not the same Precedency that the other can: and therefore I may conclude generally, that Precedency follows Power and Administration.   

QUESTION IU. Whether ought One who has been twice or oftener Elected to any Dignity, be Preferred to him who was only once Elected?  
The Roman Emperors have differed in this, for the Eldest and the Latest Emperors did think, that such repeated Elections did augment the Dignity to those who were Elected, and thus Valentinian novel. 48. and this was likewise Hadrians Opinion, as Spartianus Observes in his Life: But Theodosius the Younger thought, that these repeated Elections did show the Merit of him who was Elected, but did not augment his Dignity, repetiti enim fasces virtutem sepe meritam comprobant, non augent, quia nihil est altius Dignitate, L. 1. C. de Consul. vid. Cujac. ad l. illam, and with this last agrees Goth. Thes. 28. With Us if the Precedency be determined by a voice, this holds not, as if one should be Elected to be the first Alderman, and another to be a second Alderman, this second would not have the Precedency, though he had been ofttimes formerly preferred; But in dubious cases, certainly repeated Elections do prefer: And though the Imperial Diet has decided Precedency upon this Account amongst Generals of an Army, to him who had been twice formerly a General, though the other had been first a General, as Goldast. observes; Yet I find it more Reasonable, that he who was the eldest General, should have been preferred: For that is the mark of greatest Experience, and the not being frequently Elected might have proceeded from want of new Occasions or of Inclination; And it were Absurd to think, that if One had been an old General, and his Commission had continued for many years, that thereafter another, though thrice Elected in a shorter time, should be preferred to him. With Us also, I find that One who was been twice or ofter preferred to be Provost or Mayor, is preferred to him who has been only once Mayor; and it is Reasonable that they both living in one place, and being preferred by those of the same City, should be preferred in Meetings relating to the same City.   

QUESTION V. What Influence has the Conjunction of more Dignities upon Precedency?  
There are some Lawyers who think, that he who has most Employments ought to be Preferred to him who was but one: And thus they say, That he who hath two or three Dutchies, or Earldoms, aught to be preferred to him who hath but one, Even as two or three Lights are greater than one, and two or three Cords are stronger than one; And for this they cite L. Fin Cod. de edict. d. Adrian. and of this Opinion was Menochius, Consil. 902. And for this cause, Marz. Consil. 26. thought that the Duke of Ferrara ought to be preferred to the Duke of Florence; And Navarrus Consil. 1. thought that a Cardinal who was a Chancellor ought to be preferred to an elder Cardinal who was not; And that a Doctor of the Civil and Canon Law, aught to be preferred to a mere Doctor of the Civil Law. But yet Gothofred is of a contrary Opinion, cap. 3. Thes. 2. And in Our Practice the greater Dignity is preferred to many lesser Dignities, yea, and the Elder in the same Dignity is preferred to him who was last Promoted to the same Dignity, though he have many lesser Dignities joined to it; But betwixt two Dignities that are different, if it be not known to which of the Two the Precedency is due, the conjunction of the lesser Dignities with the Dignity controverted aught to prefer; Even as if it were doubted, which of two Bodies weighed most, or which of two Lights shined most, the least addition to either would certainly cast the Balance and alter the Proportion: But if these many be all Inferior to one Employment, they ought not to be preferred, no more than many little Pearls ought to be preferred to a great one; and yet if it be doubted which of two Pearls are of greatest Value, the addition of two or three little ones to either, will raise the Value of that one to which they are thrown in.   

QUESTION VI How far do former Dignities Influence a present Advancement, and Determine the Precedency depending thereupon? And what Rank is due to Honorary and Extraordinary Offices?  
Lawyers give divers instances of this, As first, a Judge is made a Privy Counsellor, but thereafter the Precedent of that Court, where he is a Member or Judge, is admitted to be a Privy Counsellor; in that case though the other was first admitted to be a Privy Counsellor, yet the Precedent, though last admitted, will have the Precedency, and Vot first even in the Privy Council; Because it is indecent, that a Member should have the Precedency, or Vot before his own Precedent: And thus Papon. tells Us, it was decided by the Parliament of Paris, vid. lib. 4. tit. 2. Art. 5. which is not unlike what Vitellius says, in Tacitus 19 Annal. Foedum si de Honoris praerogativa dimicare cum ducibus audeant, sub quorum sig●is stipendia fecerant. A second case is, That though a Honorary or Extraordinary Officer will not be preferred to an Officer Ordinary, Yet if a person be a Honorary or Extraordinary Officer, before another be admitted to be an Ordinary Officer, if that person who was but formerly an Extraordinary Officer, be thereafter admitted to be an Ordinary Officer, he will be preferred to him who was admitted before him, though to an equal Degree; Because, though he was not the first Officer in Ordinary, yet he is now equal in Dignity with him, and was an Extraordinary Officer before him: as for instance, If One be admitted to be an extraordinary Physician to his Majesty, and thereafter become an ordinary Physician, he will have the Precedency from them who were Admitted in Ordinary before him, if they were admitted to be Ordinary Physicians after he was admitted to be Extraordinary; Precedency being to be taken in that case from the Time of the first Advancement, L. 4. Cod. de Consulibus: But though this be Observed abroad, yet I doubt if it be Observed in Britain. A third case is this, There are two made Counsellors, but he who is last Admitted a Counsellor, is first Nobilitat, and therefore even as Counsellor he will have the Precedency, though the other was made the first Counsellor; And this was so decided by the Emperor Theodosius, L. unica Cod. Theodos. de Consulibus: and is in Observance with Us, amongst whom the youngest Counsellor, being made an Earl, is preferred to elder Counsellors, and though the elder Counsellor be thereafter made an Earl, yet the eldest Earl will always be preferred; Though it would seem that upon the first Counsellors being made an Earl, he ought to be preferred, as in the former case where an Extraordinary is preferred, when he becomes to be in equal Dignity with the prior Ordinary Officer. But the Reason of the Disparity is, because Earls are always to preceded according to their Priority, but Officers are not, An Office being but a thing Temporary, and there being no Difference betwixt an Ordinary and Extraordinary Officer, but that the Ordinary has a Salary, and waits more immediately upon the King, but yet the Extraordinary Officer was truly of equal Dignity with the Ordinary. These Extraordinar Officers were called Honorarii seu Codicillares, L. 9 C. de metatis quibus citra cingulum Dignitas pro solo Honore delata est, they had no advantage save the Dignity, Nou. 70. nihil aliud nisi purum Honorem habent, L. 7. de Decur. they are called inanes umbrae & cassae imagines dignitatum. I have heard this case also Stated with relation to the same quaere, viz. By the Erection of the Town of Brichen, in a Burgh Royal the Bishop of Brichen is first to Elect, and then the Town are to Elect their Bailies: From which the question arises, Whether if the Bishop choose One who was never a Bailie formerly, and the Town choose those who were formerly Elected Bailies, should the Bishops Bailie preceded? It being pretended, that though he is to have the first Nomination, and the choice of all, yet that should not give his Bailie or Alderman the Precedency, in respect that by the constant Custom observed by all the Burrowes, when many are Elected to be Aldermen or Bailies at once, he who has been formerly a Bailie precedes always him who was never.   

QUESTION VII. Whether amongst such as have equal Dignity, the first in time ought to be Preferred?  
It is Answered, That Generally and Regularly the first in Time ought to be Preferred, amongst such as are equal in Dignity; Which is clear be the Civil Law, not only in Kingdoms, but in all the Degrees of Nobility and Promotions: And this Our Reason may teach Us without Law, for if there were not some Certain and Stated Rule whereby Precedencies might be known, it were impossible to evite Confusion, and all other Rules except this are uncertain, but yet this Rule has some Exceptions. 1 o. Princes of the Blood, viz. the Sons, Brothers, Grandsons, and Nephews of Kings are excepted from this Rule: For though they be Dukes or Earls of a latter Creation, they are preferred to all of that Dignity. 2 o. In Germany, if the Chief of a Family come to a Dignity, equal to one of his Kinsmen who formerly enjoyed that Dignity, he will be preferred to him, though his Kinsman did first attain to the Dignity; An Example whereof Gothofred gives cap. 3. Thes. 16. this Exception seems to be founded upon the right of Blood, to which those of the same Family seem to give that Respect as to an elder Brother; But though those of the Family may give this Respect out of Favour, yet in Law they are not thereto Obliged; For the Prince being the Fountain of Honour, he only can give Preference, and his Patent may prefer one Cousin to another, since he can bestow Employments which can prefer a Son to a Father: And therefore in Britain, the date of the Patent is only considered.   

QUESTION VIII. When many are Promoted at once in the same Write, or when many are Nominate tn the same Commission, Whether is the Order of Nameing therein expressed to be Observed?  
It is answered, That Ordinarily he who is first named ought to be preferred, L. 1. ff. de Albo scrib. Albericus ad L. inter Claras C. de sum. Trinit. but though this hold, where the Write wherein many persons are named is drawn upon Design to Prefer those who are named, because, there Promotion being the design, It is to be presumed that the Order of the Promotion was Observed, Glossa. ad §. ult. Auth. de Defence. Civit. & Clement. 1. de Baptismo, yet where the Write had any other design▪ and the Nomination did only proceed by way of Narration, there an Argument from the Order of Nomination is not still Concluding; especially, Considering that such as draw public Papers▪ are not always versed in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And thus I have myself seen old Charters wherein the Chancellor is ofttimes placed after the Lord Chamberlain, and both of them after some of the Nobility; and if any man will consider Our Statutes, wherein Commissions are granted, they will find this Order very ill Observed: And Lawyers conclude this Argument very weak in such cases, Everard. in Topicis loco ab ordine num. 13. Golstad. lib. 1. cap. 23. And there are very clear Examples of this given, cap. 2. de judiciis, cap. Pastoralis de Concess. prebend.  
But yet in dubious cases, where the Person injured cannot otherwise prove his Precedency, this aught to bear great weight, especially, If many such Papers can be showed of one tenor; And if the Office granted by that Commission gives Precedency, above what the persons therein named could otherwise pretend to, than the first Nomination has the Precedency: As when Ordinar Gentlemen are named in the Commission of the Privy Council, etc. I find also by the old Records of Parliament and Privy Council, that the Members of Parliament and Counselors are in the Sederunts named as they entered into that particular Meetings, but now they are named according to their true Precdency.   

QUESTION IX. In what cases does Age prefer, and what is its Prerogative in the matters of Precedency?  
The Concession of the Prince being the Rule of Honour, he who has the first Concession ought to be preferred in the matter of public Honour, except in three cases observed by Gothofred. cap. 3. Thes. 14. First, in cases dubious. Secondly, where the pretences are absolutely equal; And thus of the two Roman Consuls, the Eldest always preceded, as Plutarch observes. Thirdly, to take away Contraversies amongst persons of the same Family, but of different Lines. It is observed in Germany and other places, that the Eldest has always the Precedency, as Golstad and other Germane Authors observe; And this last holds likewise with Us, if the Precedency be not clear, and was so decided by King james the sixth, betwixt Blair of that ilk, and Blair of Balthaiock.   

QUESTION X. Whether does Appearancy of Blood give Precedency before actual Investiture and Possession?  
Though it may seem, that since Marquisats, Earldoms, etc. being Feudal Honours, conferred ofttimes by erecting Lands in a Marquisat or Earldom, that therefore till the apparent Heir be actually Invested, or Infeft as We call it, he ought to have no Precedency; Yet that being expressly▪ Debated, in anno 1608. in the case of Frederick Duke of Wirtemberg, it was decided, that the very right of Blood transmitted the Precedency: But Golstad. Coment. de Reg. Bohem. lib. 3. cap. 6. is of opinion, That though this may hold where the apparent Heir sought to be Invested or Infeft, and his not being Entered nor Infeft was not his Fault; Yet if he did not seek to enter, he ought not to have the Precedency: With Us though an apparent Heir never enter, yet he has still the Precedency due to his Predecessor.   

QUESTION XI. Whether does the apparent Heir his Assuming and Using the Title and Precedency of his Predecessor, make him liable to his Predecessors debts, and Infer a Passive Title against him, as We speak?  
To this it is answered, That it makes him not Liable, in payment according to the present Curent of Our Decisions, because Honour descends from the King, and is not any lucrative Accession, out of which Debt may be paid, and no man should be made liable to Debts for enjoying that which cannot pay Debts: Nor does the Son possess this Title by his Father, but by his Family; And Lawyers have resolved that Filius retinet Nobilitatem etiam repudiata haereditate, Bart. in L. jurisjur. § 1. ff. de Oper. lib. jac. & in L. si non sortem ff. de condict. in debit. But yet this decision may seem unsuitable to the Analogy and Principles of Law, For 1 o. Since Honour is by the first Patent and Erection granted to a man and his Heirs, It seems Just and Legal that none can enjoy the same, but such as are Heirs; so that this seems to be a qualified Right granted by the King, and consequently, can be enjoyed by none but such as Purge and Purify the qualities and are Heirs. 2 o. We see that in other Rights granted to a man and his Heirs, no Successor can have Right without being Heir, and since this holds in Accessions of the meanest Nature, Why should it not much rather hold in Titles and Dignities which are things of great importance? 3 o. We have no way nor method to know who is Heir, but by an Inquest, after which he who is served Heir is liable to all Debts, and if he who is to use the Title, needs not be found Heir by an Inquest, any man may use the Title of a Deceist Peer, and if two contended for it, this could not be tried without an Inquest and Service. 4 o. The making men liable to their Predecessors Debts for using his Title, would be very advantageous for the Defuncts Creditors, and it is the Interest of the Commonwealth that Creditors should be paid; nor could the apparent Heir complain, since he may choose to use the Title or not as he pleases. 5 o. It were advantageous to the Commonwealth that none had a Title, but he who had the Estate which was given out with it, and out of which it was to be mantained, a Poor Nobility being a great burden upon a Commonwealth and a ruin to it: And I find that the Parliament of England did Degrade George Nevil from being Duke of Bedford, for want of an Estate suitable to his Dignity, which Statut. 17. Ed. 4. expresses the inconveniencies here mentioned, which are greater in Scotland than in England, because Our Peers have more Interest in laying on Taxes than Lords in England have. 6 o. The Law considers not in other cases, whether the thing used by the apparent Heir, may be advantageous to him, Or whether he may pay Debt with it, for the using of mere Ornaments, which can yield no Money, Or things of the meanest advantage, do make him liable, yea, and he would be liable though he were a loser by the thing he used; whereas not only are Honours and Precedency things of great Advantage, and which men would buy at any Rate; But if a man have Liberty once to use the Title of his Predecessor, it gives him a great Opportunity to enhance his Predecessors Estate by indirect means: And the former Arguments prove only that the Blood interest as to Honour is transmitted without a Service, but not that the Feudal Title of Earl can be so transmitted.   

QUESTION XII. Whether does the Appearancy of Blood give Precedency, where the Predecessor is not Dead?  
This is called by the Doctors, Spes & expectantia successionis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and upon this account it is Debated, Whether the Son of a King ought to be preferred to his Brother and all the Peers? And generally, whether the Nephew ought to be preferred to the Uncle who was his Father's second Brother? And I find it Recorded that Lycurgus did decide for himself against his Nephew, being the Son of his eldest Brother: But I would distinguish here thus, First in the Families of Kings and Princes, all the King's Children are preferred to the King's Brothers, and all the King's Brothers to the King's Uncles, and thus it was decided in France by Henry the third, Rupanus pag. 508. But formerly the Uncles were preferred by the Constitution of Philip the Long anno 1316. And though in the Roman Empire before Alexius Comnenius the Emperor's Son was still preferred to his Uncle; Yet that Emperor desiring to put a Mark of Respect upon his own elder Brother, preferred him to his Son, and now the Sons of Princes are so far preferred, that not only they, but all the Princes of the Blood are preferred to all other Peers, though they be last Created, as was found by the Parliament of Paris, anno 1541. betwixt the Dukes of Neveres and Monpensier. 2 o. If in other Families the Brother be of a Dignity equal to his elder Brother, than the Brother will be preferred to the Nephew; as if the Brother be an Earl, and the Nephew a Lord as being an Earl's Son, in this case Expectation will not prefer the Nephew, because there are other actual Degrees of Preferrence. 3 o. If the Uncle were a Lord by Creation, and the Nephew a Lord by Birth, in which case, if the Uncle was a Lord before the Nephew was born, the Uncle ought to be preferred as first in Time, but not if the Nephew was first born, and thus Baldus distinguishes, ad L. ut intestato C. de so. & Leg. here. 4 o. If neither the Nephew nor Uncle have any special Dignity, than the Son of the elder Brother is to be preferred to the Uncle; And this last case shows, that the immediate hope of Succession, or jus expectantiae, is in itself a ground of Precedency, and since a man and his apparent Heir are una & eadem Persona in the Construction of Law, and that in many things that are Disadvantageous to the Son, he is looked upon as Heir apparent, in the same way as if his Father were dead; it is therefore just, that as he has the Disadvantages of an apparent Heir, so he ought to have the Advantages of an apparent Heir: And thus We see that Our Statutes having Declared Comprisings bought in by the apparent Heir to be Redeemable by the Defuncts Creditors, It was found that a Comprising bought in by the eldest Son, even whilst his Father lived, was Redeemable from him and that he was an apparent Heir, in the construction of Law; And therefore since the Law puts him in the same case, as if the Father were Dead, he ought to have the same Precedency, and consequently aught to be preferred to his Uncle, to whom he would certainly be preferred, if his Father were dead. It is remarkable that in Scotland, the Uncle was of old acknowledged to be King during not only the Pupillarity of his Pupil; but during the Uncles own Natural Life, which being an Invasion upon the Natural Right of Our Kings, was abrogated under Kenith the third.   

QUESTION XIII. Whether should an elder Brother, who was Born before the Father was Preferred to the Dignity of a King, Marquess, Earl, etc. be Preferred to a younger Brother who was Born after his Father had attained to either of these Dignities?  
Lawyers have varied very much in this Point, For some have been of Opinion, that those that are born before the Dignity was attained, cannot pretend to the Precedency due to the Father, for he cannot be said (say they) to be the Son of a King, or Marquis, whom a King or Marquis did not beget; And since those who are born before a Crime is committed, lose not their Dignity by the Father's committing of the Crime, So by the Rule of Contraries, he who was Born before his Father was Advanced to a Dignity, ought not to participate of that Dignity: This they found likewise upon express Laws, L. si Senatus Cod. de Dignitat. L. Imperalis Cod. de Nupt. and thus Darius was preferred to be King of the Persians to Artabazanes. Others do more justly conclude, that these are to be Preferred though Born before the Dignity was obtained; For, if he who was Born in that Condition can be called the King's Son, he must be the King's eldest Son; And it were very absurd that the Father should be Noble, and the Son not; And if a King had but one Son, he could not be King if this were allowed: and this is most clear L. Senatoris Filium ff. de Senat. where it is said, That he is aswell to be called the Son of a Senator, who was Begot before the Father was a Senator, as he who was Begot after; And though this be true as to Succession, and as to the Degree of Nobility in general, yet many Lawyers are of Opinion, that they do not attain to so eminent a Degree of Nobility, as if they had been Born after the Father attained to his Nobility; For by the former Law, si Senator natus ex illustri ante Dignitatem adeptam, est clarissimus; solum natus postea, illustris: Others there are who say, That these who were Born before, may succeed to Honours which descended from old Predecessors, but those which were acquired in the Fathers own time, should only descend to such as were Born after these Honours were acquired. But now generally in Europe, and particularly with Us, even those who were Born before the Father attained to any Dignity, do participate of his Dignity, as if they had been born after the same was acquired in all cases.   

QUESTION XIV. Whether ought a Son who is in public Employment and Dignified, to Precede a Father who is not?  
It is answered, That a Son being in public Employment ought to preceded a Father who is not. And thus Fabius Maximus commanded his Father, to light down from his horse, when he was to meet him; and was praised for maintaining the Dignity of the Roman Empire in this case: And the Son in this case is not a private person, but Represenrs the Prince or Commonwealth, who are to be preferred to any person; and therefore Laurentius Celsi was justly taxed at Venice, because he would not meet his Son when he was newly made Duke of Venice, lest by being discovered before him he should lessen the Prerogative of a Father.  
But it may be doubted, Whether though this hold in Employments, it ought to hold in Titles, since in these the Son Represents not the Commonwealth; And therefore in these cases the Laws of Nature ought to prevail above the Laws of Honour, especially, if there be none present but Father and Son; But if there be a third person present who will take the place from the Father, but not from the Son, than the Son must preceded the Father; because, though he yield to his Father, yet he should not yield to a third Party: And it is a general Rule in matters of Precedency, that I must preceded you, if I preceded him who precedes you, which is not unlike that Maxim used in other parts of Law, qui vincit vincentem me, vincit me.   

QUESTION XV. Whether may he who has the Survivance of Employment, challenge any Precedency upon that Account?  
To this it is answered, That he cannot Claim any Precedency: For, though there be there the hope of Succession, and that the person to succeed be in actu proximo, and that likewise it may seem that he is advanced to a Dignity, and so ought to have a Precedency suitable to it, and that it may likewise seem fit for the Interest of the Commonwealth, that these should be Respected and Preferred who are marked out for the Service of the Commonwealth; Yet Law nor Custom have given them no Precedency, for since they have actually no Dignity nor Power, they ought to have no actual Precedency: And thus it was found by the Parliaments of Paris, and Tholows in anno 1551. & 1560. that these who had Survivances were only to be preferred, according to the dates of their actual Admission; And so these who were Admitted to be Counsellors or Judges, after they got their Survivance, aught to have the Precedency from them, if they did actually administrate before them, vid. Maynerd Notabil. quest. cap. 72. Math. de afflict. deciss. Neapolitan. 1.   

QUESTION XVI. Whether does the Daughter of a Lord, who would himself have been an Earl if he had lived, take place from the Daughter of a younger Earl.  
It may be alleged that the Daughter of the Lord should not preceded, because, an Earl's Daughter should still preceded a Lords Daughter, and this Lady's Father was never an Earl, nor are We to consider futur Honours in the matter of Precedency; And as she would not take it in her Father's time, so neither ought she after his death: And as her Father himself, being a Lord though an Earl's Son, would not have taken place from the younger Earl, so neither should the Lords daughter from the Earl's daughter, he being a younger Earl than that Lords Father: And I find by the Herald's Records in England, that Sir Thomas Lees daughter got a Warrant from the King, to take place as a Lords Daughter, her Father having died before his Father the Lord Lee, which proves that she could not have taken place otherwise, and this is commonly received in England. But yet it may be Debated, That the Daughter of that Lord should have the Precedency, since her Father would have been an elder Earl; And though she could not take place during her Grandfather's time who was the elder Earl, yet per jus accrescendi, and the right of Representation, she comes after her Grandfather's death, to be the Daughter of the elder Earl, for Honour is but a part of Succession; and therefore as she might have right to her Father's Succession, if she have not Brothers, she may by the same reason have Right to the Honours: And it were very ridiculous to Argue so, as that her elder Brother (if she had any) might take place as an Earl's Grandchild, and that she could not take the same place as his Sister; and consequently, since he would take the place of that younger Earl, so should she of that younger Earls Sister or Daughter: And the Reason why she comes to a higher Degree of Precedency by the death of her Grandfather is, because by the right of Representation her Father's Family comes in the Grandfather's place. And to show, that this Argument, viz. Your Father had not the Precedency of me, therefore you cannot have it of my Daughter, is a weak Argument in cases of Representation, may appear from this, That if it were a good Argument, the younger Earl might aswell say to that Lords Son, Your Father never took the place of me, so neither can you; And though it may be Answered to this Argument, that the Disparity betwixt the Brother and Sister lieth in this, That the Son Represents the Grandfather, but the Daughter does not; Yet if We consider it nearly, even this Answer is Fallacious: For though the Daughter Represents not the Grandfather, yet the Father's Family Represents the Grandfathers, and so participats all the Honours of the Grandfather's Family by that Representation; And as the elder Brother becomes an Earl, Because, if his Father had lived he had been an Earl, so she ought to have the Precedency as an Earl's Daughter, because her Father would have been an Earl for the same Reason.   

QUESTION XVII. Whether if the elder Brother be Mad or Dumb, etc. does the second Brother get the same Precedency, as if his Brother were dead?  
I have heard this case much Debated, some Contending, That such as were Incapable of succeeding, were to be Reput as dead, & per cap. 1. an Mutis Surdis, it is expressly declared, that such as are born Deaf or Dumb, or are naturally Idiots shall not Succeed: But others thought that even these are to Succeed, but have only their nearest Agnats given them for Curatours, and so they are Heirs; And consequently, the Precedency is not due to their nearest Friends during their Life, and they may have children who would exclude their nearest Agnats. I find some Lawyers distinguish betwixt such Defects as are Natural, and follow the haver's from their Birth, and these Defects do Exclude from the Succession, so that the next Heir has the same Precedency, as if his elder were dead, if the Succession be of Kingdoms, or Fews that have a Dignity annexed to them: But in private Rights, and where the Defects are Accidental, they assert that the Right remains with the Heir though defectuus, and consequently he retains also the Precedency, Tiraquel. quaest. 23.   

QUESTION XVIII. Which of two or more Twins ought to Preceed, when it is Controverted which of them was first Born?  
We have a remarkable instance of this, Gen. 38. where the Mother desired the Scarlet thread to be bound about his wrist who should be first Born, and as to this point Lawyers have differed very much, For some think that the Estate ought to be divided amongst the Pretenders, if it be divisible of its own Nature; Or if it be indivisible the Superior may prefer either he pleases, if the Succession be of a Few; Or the Decision may be referred to Lot in private Persons; Or to the Vote of the Representatives of the Kingdom, if the Succession be to a Monarchy. Some likewise are for the Brothers possessing by turns and alternately: and though one Witness be not sufficient generally to Establish the Right of Succession, yet if any one Woman was only present, her Testimony would certainly prefer either, necessity forming itself into a Law here as in other cases, vid. Tiraquel. de jur. primi Gen. quaest. 17.   

QUESTION XIX. Whether do Natural Children Born before a Lawful Marriage preceded? And should they be preferred to the Children Born in a Lawful Marriage, if they be Legitimated thereafter?  
This case did exist in a most illustruous instance in Scotland: For King Robert the second having begot a Son upon Elizabeth Mure, he thereafter Married Eupham Daughter to the Earl of Rosse, and had by her the Earls of Strathern, and Athol; after which having married the said Elizabeth Mure, that Marriage did Legitimate her Children, and by Act of Parliament her Children were, by a Recognition and acknowledgement of Parliament, preferred to the Children Born in the Lawful Marriage. The Reason's pro and contra, urged in that Debate at that time are now unknown; But the Arguments which might have been urged in the case, are, 1 o. That a Son so Legitimated would seclude without all controversy all Uncles, and other Agnats, Therefore by the same he should Seclude his other Brothers, § si quis autem defunctis Authent. quibus mod. nat. cap 1. qui Filii sunt legit. 2 o. Legitimation is Retrotracted and drawn back to the time of the Nativity, cap. tanta qui fill. sunt legit. and Legitimation puts the Person so Legitimated in the same Condition as if he had never been a Bastard, L. si quis Filio § pen. ff. de injust. Test. and this is bestowed as a particular Respect upon Marriage and its Sacred Character, and to invite men to make Satisfaction for the wrong they have done. 3 o. By the Roman Law those that were born in Captivity were not capable of Succession, but how soon they were Ransomed and had returned, they were restored to the Right of primo-genitor, and preferred therein to those who were thereafter born at Rome: And therefore since such was the Force even of a Civil and unreasonable Fiction, much more aught greater Force to be allowed to Legitimation, which is founded upon so Just and Pious Principles. 4 o. Quo-ad the Right of Succession, the time of the Defuncts death to whom he is to succeed, does regulat the quality of the Succession: And therefore since the Person Legitimated was capable of Succession the time the Defunct died, and was then likewise the eldest, he ought to Succeed as eldest, whatever his Condition was the time of his Birth, L. post Consanguineos § proximam ff. de suis & Legit. nec enim prius debet de cujusque conditione queri quam haereditas vel legatum ad eum pertineat, L. in opportet. ff. de Legat. 2. 5 o. The eldest Son was always eldest, and was only hindered from this Right of primo-genitor and Precedency, by the Legal imperfection of his Birth, and therefore this impediment being removed by the same Law which put it, his Birthright continues entire.  
But whether this Privilege should be granted to such as are Legitimated by the Prince, and not by the subsequent Marriage, may be doubted? And I incline to think it should not, because the special Reason of the former Concession depends upon the Favour and Honour of Marriage; and this is likewise clear, cap. & quoniam Auth. quib. mod. nat. vid. Imolam. in cap. Grand. de sup. negl. Praelat. And my second Argument is That the Prince cannot by any deed of his prejudge third Parties; But here such a Legitimation, would prejudge the Children of the intermediate Lawful Marriage.   

QUESTION XX. Whether ought the Order of the Nomination to be Observed in Commissions, where the Persons are Ranked otherways then can be consistent with the King's former express Grants?  
An instance of this may be given in this case, viz. The Mayor or Provost of a City being Patron of a College within their own Town, His Majesty grants a Commission for visiting that College, wherein he names first the Bishop, than the Mayor, etc. The question may be moved whether the Bishop ought to preceded, because he is first named; or the Mayor because he has most interest, being Patron, Who may likewise allege, that the Bishop's Nomination proceeded only from the Ordinary Custom of naming ecclesiastics first.  
As also, If in a Commission of Justiciary, three Lords of the Session being named, and the youngest of the three being first named in the Commission, It may be doubted, whether the Seniority formerly acquired in the Session ought to be Observed, and give Precedency in Sitting and Voting; or if they ought to Sat and Vote, according as they are named in the Commission: And it may be alleged that the Seniority in the Session ought to be Respected, there being a right of Precedency thereby acquired, which cannot be prejudged by a Nomination, which might have proceeded upon mistake; since it is not to be presumed that His Majesty would Degrade any whom He continued otherwise in so eminent a Dignity: And as if two Brothers were named in a Commission, the elder would sit and vote first, though the younger were first named, that inversion being presumed to proceed from Error; so ought the same to be observed amongst Judges who are in effect Brothers. Some likewise use to Argue in such cases from the reiterated Order of Nomination, and think that if the Persons Commissionated be oft named after the same Order, that the Order of Nomination in that case is presumed to have proceeded from an express Design of giving Preferrence, and this they call argumentum a geminatione actuum; But in my judgement it is no infallible Argument, for these Repetitions proceed in course.   

QUESTION XXI. In the Competition betwixt two who are Advanced at the same time, but in different Writes, As if two Patents were subscribed by His Majesty to two several Earls on the same day, which of the two were to be preferred?  
In answer to this, It is generally concluded, that though both be granted on the same day, and in the same hour, the Priority of His Majesty's Subscription would prefer him in whose Favours His Majesty did first superscrib; which may be cleared by His Majesties own Declaration, for he being the fountain of Honour, he is the only fit Judge in all Contraversies concerning it, or if his Majesty do not remember, the Declaration of His Secretary is undoubtedly to be believed, nam in his quae attingunt off●ium, officium gerentibus est credendum; But if both His Majesty, and His Secretary were dead, some think that there were place left for the succeeding King to gratify either, since the completing of Rights depends absolutely upon him, who is the first Granter: And by the Feudal Law, and Ours, if Resignation be made at the same time in the Superiors hands, in favours of several Persons at the same time, locus est gratificationi, as Craig also tells Us, and he may prefer either as he pleases.  
Some contend that where several Patents are granted in the same day, the King may prefer either, though it be known which of the two Patents were first signed and superscribed: For in Law, where the difference of time is so little, the Law looks upon it as no Difference at all, nam de minimis non curate praetor, and Albericus who has write a Treatise de minimis, is of this Opinion, and We see that the Law in other cases brings in equally such as approach so near one another in time, nor can the King be said to be functus officio, and to have denuded himself of the power of Preference, where the right of Preference is so small; as when the King superscribes both the Patents at the same time, as that he does not intermix any other business, nec divertit ad alium actum, there indeed it seems that neither can claim Preference by the Priority of Signing, since it appears His Majesty had no design of Preferring the one to the other, and papers are ordinarily presented to him by accident, as they fall in course. It may then be alleged, that in such dubious cases, where Preference cannot be known from the superscription of the Patents, and where His Majesty does not Declare the Preference by any posterior Act, but leaves both Parties to the Common Law, that there he who had the Precedency before these Patents ought to be continued in the Preference, since in all dubious cases the Law still prefers the Possessor, & semper in casu dubio pro possessore respondendum; Nor can it be imagined that His Majesty designed to Degrade a person whom He hath actually Preferred; But so it is, that to postpone a man to him to whom he was formerly preferred, is somewhat to Degrade him: And since Accumulation and Conjunction of Titles has very many effects in the case of Preference, the least effect it can have, is to prefer the Haver in such a dubious case.  
I likewise conceive, That if two Patents were given at the same time, One to a Person who had served His Majesty, and much more to an actual Domestic, and the other to a Person who had not served, nor were no Domestic, that in these cases he who had served, or were a Domestic would be preferred, because of the presumed affection of the Prince, and the former Service of the Receiver.   

QUESTION XXII. Whether is Precedency to be Ruled according to the date of the Provision, Investiture, or actual Possession?  
There are three several times from which ordinarily Precedency is computed, The first is the time when the Honour is first granted, which is called by Lawyers tempus provisionis, If the Advancement be of one single Person to a single Dignity; or tempus Cooptationis, if the Person Advanced be associated into any Society, as to be One of more Judges, etc. The second period of Time, is the time of the Investiture, as when a Nobleman is brought in in his Robs. The third is, the time when he apprehends actual Possession.  
These who write upon this Subject do conclude, That Precedency is to be given not from the time of Promotion or Provision, but from the entry to Possession, so that he who is last Provided or Dignified will have Precedency, if he first actually apprehended possession, Bald. in cap. cum olim. de consuetud. Gothofred. de Preced. cap. 3. num. 18. and thus he observes the Courts of Rome, Paris and Tholows to have decided, and for this he citys l. ult. ff. de Excusat. Tutor. l. 1. Cod. Theod. quis in Grad. Prefer. and since Administration is the end of that Advancement, the Act is not Complete till then.  
Though this hold in Honours which require Administration, such as the being in a Judicatory, etc. Yet it holds not in Honours where no Administration is requisite, And thus, if two be Advanced to be Earls, he whose Patent is first past the King's hand will have the Precedency, though the other serve in the first Parliament, or be present there a day before the other, or have his Patent first Registrat; for it is the King, and not his Clerk, that makes Noble, but yet this is Debated by La Rocque, cap. 66. Lawyer's likewise Observe that the former Rule, preferring him who has first Served to him who was first Provided or Invested, holds good, though he who was first Provided or Invested was not in mora, and did not delay to take Possession, but was hindered by some extrinsic Impediment, such as Sickness; And this they say was decided the 27 of April, 1594. in Rota Romana, and this is observed to be the common Opinion by Gonzales ad regulam 8. Cancel. and this they prove by the Analogy of other Feudal Rights, which being to be completed by Possession, the Law considers not whether the Party who should have possessed was hindered from attaining to Possession, but who first attained to Possession.   

QUESTION XXIII. Whether does the Dignity of him who bestows the Honour, Regulate the Precedency that is bestowed among Equals?  
It is answered, That it does, all other things being Equal; and thus those who have the same Dignity from a King, as for instance, Those who are made Knights by a King are preferred to those who are made Knights by a Commonwealth; And amongst Commonwealths, those who are made Noble by the greater Commonwealth are preferred, to those of the same Degree made Noble by a lesser Commonwealth, Gloss. ad L. 2. de Alb. scribend. Menoch. Consil. 126. Lauderus de Dignitat. Conclus. 32. and this holds so far, that the youngest Knight admitted by the one is preferred to the eldest admitted by the other: But Knights admitted by a Commissioner, are not upon this account to be postponed to those made by the King himself, since they are in the Construction of Law admitted by the same Dignity, & qui facit per alium, facit per se.  
It is very observable, that the French King prefers the Dukes made by the Emperor, not only to the Dukes made by himself, but even to the Ambassadors of Foreign Kings; though I think this is allowed only to these Dukes, who are Sovereign Princes. By this rule likewise it is, that the Clerks of a Superior Court are preferred to these of an Inferior, since they derive their power from a higher Jurisdiction.   

QUESTION XXIV. Whether can a Prince Nobilitat any of his own Subjects in the Territories of another Prince?  
It has been Argued that he cannot; because he cannot bestow Honours, but where he is a Prince, but so it is, that he is not a Prince, at least hath no power in the Territories of another Prince: Which Opinion seems to be founded on L. ult. ff. de Off. praefect. Vrb. and therefore Sigismond the Emperor having designed at Lions in France, to Create the Earl of Savoy, Duke of Savoy, he was resisted by the Governor of Lions, till the French King should be advertised; And Charles the fifth having whilst he was Emperor, Created some Lords and Knights in France, though at the desire of Francis the first the French King, their Creation being thereafter Controverted by their Peers, It was found Illegal: But yet I incline rather to Noldus' opinion de Nobilitate c. 2. who thinks that a Prince may Exercise any Voluntar Jurisdiction without his own Dominions, especially in Relation to his own Subjects, L. 1. ff. de Officio pro Consul. Bartol. in L. 1. Col. 9 La Rocque triact de la noblesse, c. 76. and if they should attempt against his Life, they would be guilty of Treason, though the attempt was made in a Foreign Nation. Lawyer's likewise have allowed to Princes all manner of Jurisdiction, even within the Dominion of others: And therefore I much admire, how these Honours that were bestowed by Charles the fifth, could have been thereafter controverted, if the persons to be Dignified were the Emperors own Subjects; but I believe they were not.   

QUESTION XXV. Whether when the Precedent of any Court or Incorporation is absent, may the eldest Member Convocat the Incorporation? And who ought to perce●d in that Case?  
To the first of these questions it is answered by some Lawyers, That the Precedent being absent, the eldest Member in Dignity, may by his own Authority call the meeting Convocare Collegium, as they call it, and of this opinion are Hostiensis, Panorm. Bald. ad cap. 1. de Maior & Obed: but others are of opinion that the Major part has only right to conveen the rest in that case Innocent. ad cap. 2. de operi. nov. nunc. But a third Sect of Lawyers do, for agreeing the former opinions, assert that in Ecclesiastic meetings, the eldest may by his own Authority call the rest, but not so in Laic meetings; and the reason of this Distinction seems to be, because Churchmen are bound to give more Obedience to their Seniors, and there is less fear of Design amongst them, both because they are presumed to be more disinterested, and because in their meetings their Posterity is not to gain: But without any Distinction I should think, that the eldest may always Convocat, for there may be hazard in delay, if the greater part were requisite, for the question still recurrs who should call the greater part, nor can there be great hazard in calling, for the only hazard is the packing of a Quorum, and this may be prevented, by imposing a necessity upon those who meet to advertise the rest.  
To the second question it is answered, That this is much to be determined by Custom, and Our Courts in Scotland suffer not the eldest to preceded, but choose always one to preceded in the absence of their constant Precedent; and this seems to be most Reasonable, because every Member of a Court is not ordinarily fit to be a Precedent: And yet there are some Lawyers who distinguish betwixt such Courts, to whom the chief Magistrate has chosen no constant Precedent; and in these they say the eldest cannot preceded, though they say he ought to preceded in these Courts where the King has choosed a Precedent, for as in these the members cannot choose a constant Precedent, so neither can they choose a Vicepresident, since surrogatum subit naturam surrogati, whereas the eldest is a Precedent by the Magistrate's tacit Election, since he has that Seniority from the King, or supreme Magistrate, which does prefer him to be Precedent: and we see that amongst Soldiers, the eldest Officer always commands, when the superior Officer is absent.   

QUESTION XXVI. Whether may a Peer be Degraded, because he hath not an Estate sufficient to entertain a Person of his Quality? And by whom may he be Degraded?  
It would seem that a Peer cannot be Degraded, though he hath not a suitable Estate, because the King may Nobilitate a person that wants an Estate, and Nobility being a right derived from Blood, it seems to have no Dependence 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 Author 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 tenor, And forasmuch as it is openly known, that the said George hath not, nor by Inheritance may have any livelihood 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 livelihood 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, etc.  
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 livelihood.  
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, than 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 necessary effect of Blood, but a mark of the Royal bounty, bestowed for the better Government and Advantage of the Kingdom, Earls 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 marks 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 custom of Sicily is clear, Afflictus. Col. non. in 6. not.  
It may likewise seem reasonable, that as the King only can bestow Nobility, so that it should be only 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 seeing the being a Peer is but to be the Prince's Counsellor, nor can any judge who are fit to be his Counselors, 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 only 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.   

QUESTION 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 Advocate in Rowan, 4. May 1623. vid. Lafoy Rocque cap. 67.   

QUESTION XXVIII. Whether if the Father use any low or base Trade which Derogates from Nobility, will his Children and Descendants lose it thereby?  
In answering to this case, We must distinguish betwixt such as derive their Nobility from their Father's only, 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 Predecessors, and then the Father's 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 privilege and Concession, can never be taken away by the Father's baseness or crime, Warnaesius tom. 1. responsorum de jure 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 Father's 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 Grandfather and Father have been repute Noble; So by the rule of Contraries, it is sufficient for extinguishing Nobility, that the Father and Grandfather have been repute Ignoble; And though the rights of Blood cannot be lost by prescription, yet Nobility may be lost, as all other privileges can, by not exersing or owning it time out of mind.  
It is fit to know, that in this Isle not only that Nobility which comes by Succession and Immemorial possession, but even that which comes by privilege and Concession can be Forfeited by the Father's Crime; and in this We differ from Warnesius opinion, and therefore the Children must be rehabilitat and restored by the King; But the Father's unworthiness in exercising mean shifts and Trades, does not amongst us Derogate from the children's 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 privilege, 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 employed in the Concession, and it is not just that the Children of Traitors should enjoy those titles, and that Nobility which might be useful to them in revenging their unjust quarrels.   

QUESTION XXIX. One having resigned a Dignity or Employment, 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 only to have Precedency according to his last Reinstallment, 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 Cannon: who having once renunced his Benefice, and having thereafter embraced it, is only 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 Employment, he loses 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 extinguished 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 Employment to which it was annexed; For since the Precedency is only due upon the account of the Employment, it would seem that he who has Resigned the Employment, cannot retain the Precedency, and to do so, were to retain accidens sine subjecto:   

QUESTION XXX. Whether may a Nobleman resign his Honours in favours of a third Party? And if the King's 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 only a Fee, and all Fews may be alienated; nor is this a mere right of Blood, but a privilege 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 jud. 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. julianus 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 Surname, Arms, and Barony: But the Lord Hoe having assigned his Name, Arms, and Dignity without the King's licence, the deed was adjudged void in Parliament; From which the Author of Ius imaginis, pag. 27. concludes first, That the title of Nobility may be assigned: Secondly, That it cannot be assigned without the King's 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 or surrendering the same to the prejudice of his Heir, though I am informed that there were very many instances adduced for clearing the contrare opinion.   

QUESTION XXXI. Whether does the former right of Precedency remain with him who has resigned the Office by which he enjoyed the Precedency?  
It seems that the Honour being in that case due upon the account of the Office, should cease with its cause: But yet such respect is given by the Law to those who have once enjoyed an Office, and used it well, that the former Dignity and Precedency is allowed them after they have resigned the Office, L. eam Legem ff. de excusat. Illi in quos munera nostra redundarunt, beneficiis eorum non solum quamdiu militaverunt, sed etiam quamdiu vixerint, perfruentur, and Guid. Pap. relates decis. 377. that it was so decided: For the being esteemed worthy to possess such an Office is a quality inherent to, and inseparable from the person so advanced, and in most cases even Deprivation does not extinguish the Precedency, because the order still remains, as if a Bishop be deposed he is still a Bishop, and therefore has Precedency as such; But in such cases as the deprivation destroys the order itself, it destroys also in that case the Precedency, as if a Knight were degraded for Cowardliness, he is no more a Knight, and so loses the Precedency annexed to the Order, L. 12. de Dignit. si judices se furtis & sceleribus fuerint comaculasse convicti, ablatis codocillorum insignibus & honore exuti inter plebeios habeantur.   

QUESTION XXXII. If a person do not of himself resign, but be called from his Charge by the Prince to another Employment, and one provided to his place, and returning thereafter to his first Dignity by the Prince's command, whether does he get Precedency according to his first or last instalment?  
I find this to have been agitated in the Parliament of Savoy, anno 1590. in the case of the Bishop of Alby, who being called from being a Counsellor in that Parliament to a Bishopric, and his place being filled by another, he thereafter was called back to be a Counsellor: And this may fall out with us in many cases, as for instance, If one should be called from being a Lord of the Session to be Justice General, and should thereafter be returned to be a Lord of the Session: And I find it was decided in Savoy, that the person so recalled aught to preceded according to his first instalment; but the reason there was that the Prince had expressly declared at his Demission, that if he returned he should return to his first Precedency, and that it were indecent that he who was first formerly in that Judicature, should thereafter sit in the lowest place, merely because he was once called away to a higher preferment: And in my opinion, If the Prince had not so expressly declared at the first Demission, the case might have been harder, but that Declaration made that those who were thereafter preferred, could not think themselves prejudged by this new readmission, since their instalment was still burdened with this tacit quality. I likewise think, that if he had returned before any others had been advanced, the difficulty had been much less, since there no third party was prejudged of a right acquired medio tempore; albeit it might be alleged that by his Translation, the other Judges formerly below him succeeded to his right of Precedency; For against this I conceive the former protestation could have easily guarded, albeit that protestation does seem contraria facto, and the quality adjected to be inconsistent with the nature of the thing, where the place was filled by another, since regularly two cannot preserve the same Rank or Degree, Arg. L. cum in Testamento ff. de haered. instituend. It may be likewise argued, that though this quality and protestation was admistable, where the party so called away was called to a higher Dignity of the same rank, that there the lesser was possessed by possessing the greater, as if a Justice General should be called back to be a Lord; Yet this would not hold, notwithstanding of the former protestation and quality, where he is called away to a lesser employment, or where he is called to an employment of a different and incompatible Nature, as from being a Judge to be a Colonel: And yet all these questions seem of less difficulty with Us, where the Prince may certainly admit a Judge to be the first or last: And therefore amongst Us these questions would only take place, where the person formerly installed was called away or preferred without any such Declaration of the King in his favours.   

QUESTION XXXIII. Whether does he who is suspended from the Exercise of an Office, return to the same Precedency when the Suspension is taken off?  
To this it is answered, He does: For though a Suspension may seem a Degradation and a Privation of the former Honour, and all Privations extinguish, nec datur regressus a privatione ad habitum, yet, Suspension is in Law declared to be only a temporal Interdiction from the Exercise, but not an extinction or Privation of the right: And this is clearly determined, L. 2. § ff. de Decurion. and by Langlaeus 7. Semest. 8.   

QUESTION XXXIV. Two having Offices, and changing one with another their Employments for a time, whether when they Resume their former Employments, do they return to their former Precedency?  
It is answered, Where two did exchange Employments, and thereafter returned to their old Employments, Lawyers are of opinion, that in that case they return to their former Precedency, and that their employments are not looked upon as new employments, because the one possessed still by the other, and so the possession was still the same, as if it had been by themselves, L'oiseau lib. 1. cap. 7. Rupan. lib. 7. cap. 27. but though this may hold where both of them changed but for a time, since there indeed the one possessed by the other; yet this seems harder, in the case where both of them exchanged absolutely and for ever: For there, their former right seems to have been extinguished, and the Employments to be new as to both.   

QUESTION XXXV. Whether is he who is restored by the Prince to a Dignity, from which he was Degraded, to be restored to the same Precedency which he had formerly?  
To which it is answered by Gothofred. cap. 6. Thes. 45. That he is not by this Restitution to recover his former Precedency from which he was Degraded, but he must preceded by virtue of his new title only: But I should rather distinguish betwixt these who are restored by way of Justice, in which case the Precedency ought to be the same, because the Restitution be way of Justice takes away the Impediment and Degradation, as if it had never been; but where the Restitution is only by way of Grace, there the Fault and Sentence still remains, though the punishment be taken off; and there the Restitution ought 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. james the 2. at the Battle 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 only 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 create 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 Herald 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.   

QUESTION XXXVI. Whether have the Ambassadors of Monarches the Precedency from other Monarches or Princes themselves, if personally present, even as the Kings would do whom they represent? And if in all cases an Ambassador ought to have the same Precedency that is due to his Constituent?  
To this it is answered, That though an Ambassador 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 inferior Kings and Princes: And it is decided amongst the Princes of Germany, Tit. 25. Aureae Bullae, Car. 4. And in anno 1542. the Ambassadors of Charles the fifth Emperor, were discerned 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 Ambassador is only dignified with a Supposititious and Representative Honour, shining (if I may so say) with borrowed rays: And of this opinion are Brunus de Legat. lib. 5. cap. 8. and Costa Consil. 44. though Zouch. de jure inter Gentes seems to favour Paschals opinion.  
It may be likewise doubted, whether an Ambassador does retain the same Precedency due to him as Ambassador, 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. ja. 6. went over in person thereafter, and brought over Chancellor Maitland with him, who challenged the Precedency from the Earl Marishal, alleging that an Ambassador's Power evanishes upon his Prince's appearance: Which debate was decided by King james in favours of the Chancellor, albeit the Earl contended, That as his Embassy ceased upon the Kings coming thither, so did the others Office as Chancellor cease in a foreign Kingdom, and therefore that he should have preceded as being an Earl.  
The former opinion preferring inferior Princes when Personally present, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, is so much the rather true, that Ambassadors are not, when they come to visit the Judicatures of the Nations where they preceded allowed the same Precedency; And generally it is given as a rule by Lawyers, that in locis & actibus judicialibus Legatis praecedentia solita non servatur, & non pro dignitate Regis aut alterius a quo ablegati sunt, Gothofred. de jure praecedentiae, cap. 7. num. 47. so that though Kings themselves would sit above all these Judicatures, yet their Ambassadors sit but among them; Thus the Venetian Ambassador was only placed in the Parliament of Paris after the Bishops, as Rupan. observes, lib. 7. cap. 10.  
Though Ambassadors have the same Precedency that is due to their Constituents, yet Agents and Residents of Princes have not, nor has the Pope's Nuncio the Precedency that is due to an Ambassador, Gothofred▪ ibid. for these in effect are sent oftentimes to prevent the Debates that might-fall amongst Ambassadors, and therefore the French King sends very rarely his Ambassadors to the Emperor's Court, because he knows that Court would give the Spanish Ambassadors the Precedency, which he thinks is due to his Ambassadors.   

QUESTION XXXVII. Whether have such as have been Ambassadors, or have been in such honourable Employments, any Precedency thereby when their Employment is ended?  
To which it is answered, That though after an honourable Employment is over, whether by Dimission, or by the expyring of the Commission, the Precedency thereto annexed ceases with it; Yet the Prince sometimes gratifies the person with a continuance of some Precedency and Honour: And in the Records of the Herald 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 Ambassadors, 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.   

QUESTION XXXVIII. What place is due to the Representatives of Subjects, such as Viccars, Deputs, Assistants, & c?  
It would seem that as Ambassadors have the same place that is due to him whom they represent, so those who represent Subjects, as Viccars who represent the Bishop, Deputes who represent Judges, aught 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 Bishop's Vicar is preferred to the Dean, and Archdean, and not only are these representative Dignities preferred in the acts of their Jurisdiction, but even in all other deeds, which necessarily preceded or follow them; And some Lawyers are of Opinion, that they are to be preferred to the same Dignity, in all promiscuous and indifferent Acts which fall in during the time of the Representation, and thus Cautuccius decis. 582. is of Opinion, that the Bishop's Vicar sent by him to hold a Synod, is to have Precedency before all the Chapter, not only in the Synod itself, but likewise in all other Assemblies, Visits, and Intertainments, during his Commission: But the contrare of this is mantained by Menoch, Consil. 51. And in my Opinion, these Doctors may be thus reconciled, viz. If the Representation flow immediately from the Law, as for instance, If the Council should Delegat any man to be Sheriff, there the person substitut would have in all cases during his Commission, the same place that is due to him in whose place he was surrogate, for there Surrogatum sapit naturam surrogati; But if the Representation flow from the person himself whom he Represents, in that case the Representative has only the Precedency, whilst he is exercising the Office, or in Actions thereto relating; And thus Sheriff-deputs with us have only the Precedency due to their Constituents, whilst they are exercising these Acts which relate to their Office: And yet I think, that those Representatives of Subjects have even in all extrinsic and indifferent Acts the Precedency due to their Constituents, when they meet with others of the same Degree, and thus amongst Sheriff-Deputes, etc. the Precedency is to be given according to the Precedency that is due to the Principal Sheriffs.   

QUESTION XXXIX. What Precedency is due to Assessors appointed for judges, and to extraordinary judges?  
I conceive that Assessors chosen by a Judge get no Precedency thereby, since Subjects cannot bestow Dignities; but that where the Prince names any man Assessor to a Judicature, the person so named has thereby the Precedency next to the Judge to whom he is named Assessor, nam est ejus umbra, his shadow as the Law speaks, and the shadow should follow the body: And with Us when the Council names Assessors to the Justices, the Assessors vote only after the Justices; And yet in France I find that Assessors take place after the Precedent, and before the other Counsellors, and so it was decided at Paris, 1608.  
It may be also doubted, whether Our extraordinar Lords of Session who sit with and vote after the ordinar Judges, should have place after them if they were not Earls or Noblemen, as by the institution they are obliged to be (but not either as that the King may not promote Gentlemen hereafter) quo casn, I think they would take place after the ordinar, as they vote after them: For these extraordinar Lords are like to these adscriptiti● or allecti, L. 2. C. ut dignit. ord. servetur. of whom Capitolinus in the life of Pertinax, qu●m Commodus allectionibus innumeris praetorios miscuisset, senatus consultum Pertinax fecit jussitque eos qui praeturas non gessissent sed allectione accepissent post eos esse qui vere praetores fuissent.   

QUESTION XL. Whether can the King Create now an new Earl, and Ordain him to preceded all the former Earls, or any such number of them as he pleases?  
It would seem that the King cannot: For there being a Precedency acquired to the former Earls by their first Gift, the King cannot by any new gift prejudge third Parties, and this were in effect to Forfeit them of their Precedency; Likeas it would seem, that since most Earldoms were granted by erecting lands in an Earldom in favours of the Receiver, that therefore the Concessions of Land and Honours are of the same Nature, and that no new grant can prejudge the one more than the other.  
But it may be urged on the King's part, that the King being the only fountain of Honour, he may do therein as he pleases, except in so far as he is limited by Law; And therefore since there is no Law with us limiting the King in this point, he may do therein as he pleases. 2 o. The King by Act of Parliament, Henry the eight, is limited as to this point in England, so that he can grant no such Preference; And therefore it may be concluded that this was formerly in his power even there, and that since he is not limited here, his power is here entire as to this point, whereof many instances are given in answer to quest. 35. and since that statute, it is thought that His Majesty may ordain the last Knight to preceded all the rest formerly dubbed and created, because Knights are not expressed in that statute. 3 o. We see the King in Scotland does empower Countesses to retain their former Precedency, though they marry a Husband of a Rank inferior to their first Husband; And Duke's Daughters even after their Marriage to retain the Precedency due to them as Duke's Daughters. 4 o. His Majesty does by new Confirmations transfer the Honours to Hiers Female, though the Patents at first were only granted to Hiers male, and so by the not existing of the Hiers Male, those Earls who have the next Precedency might aswell allege, That the King could not by any new right in favours of the Hiers Female prejudge them. 5 o. His Majesty does sometimes appoint any of His Officers of State to preceded other as he pleases, though these may likewise allege, that there is jus quaesitum to them by their prior Gifts: 6 o. His Majesty restores the Sons of persons forfeited to their Father's Precedency, notwithstanding of the jus quaesitum, by others medio tempore. 7 o. The King has obliged himself not to prefer the Knights of Nova Scotia, or Knights-baronets', otherwise then according to their Creation, which had been unnecssar, if the King could not have preferred them by His Royal prerogative: Sometimes also His Majesty confirms to the Nobility the entails of their Estates, whereby they have power to name their Successor with the Precedency due to themselves, which right being ordinarily ratified in Parliament, uses to establish and transfer the Precedency upon the Heir or Successor so nominated; But since Ratifications pass without observation, and oftentimes without reading, it may be doubted whether such a Ratification should prejudge even these who were Members of Parliament, but much more such as were not present, or such as were Created thereafter, these Ratifications not being properly public and Legistative statutes, and so can bind only such as consented.   

QUESTION XLI. Whether if the King should create an Earl with Precedency to all other Earls, during his life? Or if when an Earl is Forfeited, will his Lady in either of these cases retain the Precedency she formerly enjoyed during her Husband's life?  
To which it is answered, That as to the first it was expressly decided in England, in the case of the Earl of Nottingham, that he upon the surrender of the Admiral's Office, being by King james allowed the same Precedency that belonged to john Lord Mowbray his predecessor, That therefore his Lady should enjoy the same Precedency if she survived him, because this was not a Dignity of Office, but a real Dignity settled in his person; and generally in all real Dignities such as those of Dukes, Marquesses, Earls, etc. the wives participate the Husband's honour even after his death, for it is not the Patent that confers the Honour upon her, for else she could not enjoy the same except she were therein mentioned, but her right flows from the Common-Law which illustrates the Wife with the Husband's Dignity, because Marriage is individua vitae consuetudo; And in the Law, the Husband and Wife are one person, and for the same reason we see likewise that the Wives of Knights-Batchelours, and Knights of the Bath, enjoy the same Precedency that was due to their Husbands, though they enjoyed the same for Life: And whereas it may be objected that the Husband having the Honour but for Life, it cannot be continued longer then for the time limited, or to be transferred to the Wife after the death of her Husband. It is answered by the same rule and proportion no wife whatsoever should enjoy the title of her Husband's honour after his deceas, but then all the honour and place should surceas, for she challenges nothing but from her Husband: The Honour for perpetuity to the Heirs, concerns only the Descendants and they are thereby Ennobled; But to her a state for Life, and a state to the Heirs is all one. I find also that Sir William Heram having married the daughter and Heir of the Lord Say, and so being in her right a Baron, and by reason of that Marriage summoned to the Parliament as a Peer of the Realm, having survived his wife, albeit he had no Issue by her, he notwithstanding enjoyed that title and dignity during his life.  
To the second branch of this question it is answered, That the wife of a person forfeited enjoys the same title and dignity that was due to her before the forfeiture; for though it may seem that the dignity of the Family is extinguished, and consequently she cannot enjoy it; Yet the crime punishes only the person, and corrupts only the blood quo-ad the Descendants, but not quo-ad the Wife: And though the honour be extinguished, yet being extinguished upon a personal account, the punishment ought not to reach further than the crime.   

QUESTION XLII. Whether amongst those of the Royal Line, does the next to the Royal Stock preceded? Or does the Precedency belong to the eldest of that Branch?  
The reason of this doubt is, Because as in other Nobility the first who is dignified has still the Precedency, as being farthest removed from the dregs and Lees of the Vulgar; So amongst those who are descended of Kings, the last is still preferred as being nearer to the Common-Stock, by which all are Ennobled: And therefore the Uncle, it seems, should preceded his Nephew by the elder Brother, as being a Degree nearer to the Stock, as was alleged by the Cardinal of Bourbon Uncle to Henry the fourth; But yet it was justly decided for Henry the fourth, because though the younger Branch be still preferred, yet amongst these of the same Branch the eldest is still preferable, for by the right of Representation he Represented his Father, which Father would have been preferred, and here again the right of Birthright still returns: And this holds not only in France, as Tillet observes, but with us in Britain, and generally in all Law, Exod. 6. and 1. Cron. 4. vid. Dec. Consil. 445. albeit of old in Scotland the Uncles did oftentimes usurp upon this account, L'oiseau chap: 7. And to this day the eldest Cadets in private Families do still take place with us, from the last descended beyond the Brothers of the Family, and those old Cadets take place of the Nephews, which is an Error.   

QUESTION XLIII. Whether and when is the right or left Hand the chief mark of Precedency? And whether is the place opposite to the seat of the chief Person who sits betwixt the two preferable to either right or left Hand?  
To this it is answered, That amongst both the jews, Greeks, and Romans, where three were either sitting or walking, the midle-place was thought the chief place; but where two were without a third, the right Hand was concluded the more Noble amongst the jews: and thus the Scripture tells us, That such as are to be saved shall sit at the right hand of GOD; And yet in Jacob's Blessing Ephraim and Manasseh, the left hand was preferred, Genes. 48. vid. Pansirol. lib. 1. pag. 501. But amongst the Romans it was doubted which of the two was preferable, Demsterus Antique Roman. pag. 866. And yet it is certain that amongst the Turks the left side is accounted the more Noble, because he commands his neighbour's Sword; And though these be the chief Seats, yet he who is set opposite to him who sits in the middle, is thereby preferred to him who either sits upon the right or left hand, since in effect he is made the Correspondent of the chief Person, as Golstadus defends by many instances, pag. 433.   

QUESTION XLIV. Whether in Improbations raised to secure Precedency, can Certifications be granted, aswell, against Patents of Honour as against other Writes?  
This question having occurred in a Debate january 1672. betwixt the Earl of Sutherland and the Earl of Errol, It was urged that in Declaratours of Precedency, and Improbations raised for securing thereof, no Certification could be granted, because 1 o. such Certifications were only granted where the Right and Title to be improven was constitute by Write; But so it is, that the Dignity and Honour of Dukes, Marquesses, Earls, etc. was not only established by Patents, or Infeftments, but might be acquired by bringing them in to Parliament in their Robes, and such other forms of Creation, as have been practised both amongst us and other Nations, against which no Certification could operat. 2 o. Certifications are only allowed where the Pursuer of the Improbation has a direct title to that whereof the Right is to be improven, exclusive of all others: But so it is that the Earl of Sutherland, nor no other has an express, and explicit Right to be the first Earl of Scotland, and any right he has to the Precedency; arises only consequentially. 3 o. Improbations being only a remedy introduced by our Law and the native design thereof being to secure real rights, and private Estates: it ought to be extended to no such case, as that of Dignities and Honours, to which it has never been applied, during these many years that Improbations have been used here, and to which certainly our Predecessors would have applied them, if the nature of the action would have allowed it.  
To which it was answered, That Certifications being introduced amongst us, to secure the Pursuer against any Evidents in the Defenders hand, which might prejudge the Pursuers right, they ought to be extended to Honours established by Patent, or Infeftment, these being rights that are transmitted by Write, and this being the nature of those Certifications, they ought to take place every where except where express Law or Decisions have restricted them. And therefore, since there is no Law nor Decision, Declaring that Certificationss shall not be granted against Patens, or Infeftments which transmit Honour: they ought to be granted against these, aswell as against other rights. Nor is it craved, that these Certifications should run against Honours transmitted via facti, such as Robing, and Belting, and though the Pursuer be not designed by his Infeftments the first Earl, yet that cannot hinder him from removing by this Certification, all Writes, or Evidents, which may hinder him to be the first, Upon which Debate, the Lords refused to grant Certification against such Patents, or Infeftments.   

Courses taken by Princes and judges, when they intent to shun the deciding of Contraversies concerning Precedency, and to preserve the Rights of all the Competitors.  
First, They ordain the Competitors to preceded one another by turns, and alternatively: And thus the Emperor Lewis the fourth did in anno 1328. decide betwixt the Prince Palatine, and the Duke of Bavaria, and so the Parliament of Paris decided in anno 1616; but lest the first turn should give the Precedency that uses to be decided by lot. And I find this alternation very old, for the Thebans did so decide betwixt the Brother-Kings, Etheocles and Polinix; and Plutarch observes the same betwixt Thyestes and Attreus.  
Secondly, They use to assign one of the Competitors a place out of all Rank; as was done to the Spanish Ambassador in the Council of Trent, and is frequently done in Our Parliaments; But though this preserves the Right, it insinuates a Ceding: And therefore the juster way is to place both so without the Benches, as that neither of their seats can show any Preference, as was done at the Council of Trent betwixt the Emperor's Ambassador and the Cardinal of Trent.  
Thirdly, They use to cause them enter by several doors, as was observed betwixt the Queen of France, and Margaret sister to Charles the fifth, as Guicciardin observes.  
Fourthly, They use round tables, or to write the names of the Pretenders in a circle, an example whereof we have in Gaius, lib. 1. Institut. and Pope Vrbane having desired the Franciscans to give him three of their number out of which he might choose one to be Cardinal, they wrote down their three names circular-ways; but in this case, the names should be written down exactly in the middle of the table or paper; for else as Crantzius observes, he whose name is next to the top of the paper has thereby some Precedency.  
Fifthly, The eldest of the Competitors is still ordained to preceded: Of which Livius gives an instance, lib. 42. and King james the sixth decided so between several Families in Scotland, and particularly between the Lairds of Blair and Balthaok.  
Sixthly, Sometimes he who was first promoted to a Benefice or Office is preferred, where the difference is betwixt the Offices or Benefices; and thus it was decided betwixt the Sees of Rheims and Treves.  
Sevently, Sometimes also the Competitors are preferred according as they produce their Commissions, as was done in the Council of Trent betwixt the Ambassadors of Portugal and Hungary; and the Polonians do frequently in Competitions between Ambassadors, prefer him who first enters their Territories, Bodin. de Repub. lib. 1. cap. 9  
Eightly, Sometimes also the Competitors are ordained to give their suffrage and preceded according to the respect due to the Nations, and not to the persons: as was decided in the Council of Constans and Basil.  
Ninthly, It is observed that Octavius Farnesius Prince of Parma and Placentia, to shun the difference of Precedency betwixt his two Towns of Parma and Placentia, did write himself Duke of P. P. And King james the sixth to shun any debate that could have been between Scotland and England, assumed the title of King of Great Britain.  
Tenthly, Some use to secure themselves against such contests by Protestations, which certainly do interrupt prescription, and preserve the Protesters right, L. 14. § 8. ff. de Relig. but in that case the protestation must be presently interposed, for protestations after the deeds controverted are ended and passed, are concluded to be of no value, Carpzol. def. 22. for protestations cannot be drawn back: But it has been doubted whether the person against whom the protestation is taken, does prejudge himself, when he does not protest in the contrar, for this seems to infer an acquiescence that the protestation is just, since qui tacet consentire videtur, and this is the occasion, why in our Judicatures when one protests, the other ordinarily protests in the contrare; But yet it is generally concluded that Silence in that case does not prejudge him against whom the protestation is taken, since he knows that in Law the protestation secures his right, Tusc. tom. 6. Conclus. 941.   
FINIS.