Earl of Forfar His Eldest Son Lord Wendal Midleton Earl of Midleton His Eldest Son Lord Clearmont Scot Earl of Tarras 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 Gray Lord Gray 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 Sandilands 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 Forrester 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 Sandilands 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 Iedburgh Weems Lord Bruntisland ¶ It is to be observed that the eldest Sons of Viscounts and Lords are designed Masters by their Fathers Titles Lord Thesaurer-deput Lord Register Lord Advocat Lord Iustice-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 Earles 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 Grand-father 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 Kings Bench in England by a report made by the Lord Thesaurer in the Kings name the 17. Iune 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 onely intended be K. Ia. 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 onely 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 priviledges unnecessary to be insert here And moreover for their encouragement did Erect Creat Make Constitute and Ordain that Heritable State Degree Dignity Name Order Title and Stile 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 Baronets in all time coming with the Place Preeminency Priority and Precedency in all Commissions Breeves Letters-patents Namings 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 Majesties Lieutenant of Nova Scotia who with his Heir their Wives and Children conform is not onely 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 expresly this exception and provision As also excepting Knights-Bannerets who should be Created under the Royal Standard in His Majesties Army and in open War the King himself being present and that during the Bannerets lifetime onely 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 Baronets 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 Baronets should take place before the Bairns Male and Female respectively of all persons of whom the Baronets and their Heirs Male had the Priority And likewise before the Children of the Bannerets and that the Wives of the Sons of the Baronets and of their Heirs Male should preceed the Wives of all persons whom their Husbands might preceed 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 Baronets should attain to the Age of twenty one years they should be by His Majesty and his Successours created Equites aurati or Knights Batchelours without payment of any Fies or Dues for the same providing they should desire it But here it is to be observed that some of the eldest Sons of Baronets pretend to the title of Knight at their Majority be vertue of this clause without any previous desire or dubbing which certainly is an errour 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 Baronets 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 azur the Badge of
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 Marquess whom a King or Marquess did not beget And since those who are born before a Crime is committed loose not their Dignity by the Fathers 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 participat 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 Kings Son he must be the Kings 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 onely descend to such as were Born after these Honors were acquired But now generally in Europe and particularly with Us even those who were Born before the Father attained to any Dignity do participat of his Dignity as if they had been born after the same was acquired in all cases QVESTION XIV Whether ought a Son who is in publick Imployment and Dignified to Preceed a Father who is not It is answered That a Son being in publick Imployment ought to preceed 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 mantaining 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 Common-wealth 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 least by being discovered before him he should lessen the Perogative 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 Common-wealth 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 then the Son must preceed the Father because though he yeeld to his Father yet he should not yeeld to a third Party And it is a general Rule in matters of Precedency that I must preceed you if I preceed him who preceeds you which is not unlike that Maxime used in other parts of Law qui vincit vincentem me vincit me QVESTION XV. Whether may he who has the Survivance of Imployment 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 suteable 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 Common-wealth 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 onely to be preferred according to the dates of their actual Admission And so these who were Admitted to be Councellours or Judges after they got their Survivance ought 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. QVESTION 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 alleaged that the Daughter of the Lord should not preceed because an Earles Daughter should still preceed a Lords Daughter and this Ladies 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 Fathers time so neither ought she after his death And as her Father himself being a Lord though an Earles Son would not have taken place from the younger Earl so neither should the Lords daughter from the Earles daughter he being a younger Earl then that Lords Father And I find by the Heraulds Records in England that Sir Thomas Lees daughter got a Warrand 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 receiv'd 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 Grand-fathers time who was the elder Earl yet per jus accrescendi and the right of Representation she comes after her Grand-fathers 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 Fathers 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 Earles Grand-child 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 Earles Sister or Daughter And the Reason why she comes to a higher Degree of Precedency by the death of her
their Monuments or Records And it is clear that we had Charters for these Lands we held in England and that England had Charters at the same time for the Lands they held in France And it is very observeable that in the Reign of King Edward the 1. that King stiles himself Rex superior Dominus Regni Scotiae during his violent Usurpation over Scotland whereas never any King of England did so formerly And yet if they had had any such pretensions they had assumed the same Titles but this imaginary Title began and ended with the Force which only maintained it 3. The English cannot condescend upon any Reason which might have prevailed with the Scots to have become Vassals to England nor any particular time when they first became Vassalls and all they can alleadge is That upon some impressions of Force some of our own Kings being prisoners or some of our people being opprest they did elicite from them acknowledgements of a Vassalage formerly stated Whereas Force renders all acknowledgements null and that these acknowledgements were null upon many other Accounts and that the Kings of England have been forced to grant the like to other Princes shall be proved clearly in answer to the Instances which the English adduce 4. Scotland has been habite and repute and acknowledged to be a free Monarchie and their Kings Independent and Supreme and that not only by all Forreign Princes the best Judges in this Case who have received and preferred their Ambassadours as the Ambassadours of free Princes but even in General Councils the King of Scotland has been preferred to the Kings of Castile Hungary Pole Navarr Cyprus Bohemia Denmark and thus they were ranked by Pope Iulius the II. anno 1504. vid. Besold sinop. doct politicae lib. 20. cap. 10. Which could not have been done if he had been only a Feudatory Prince since all free princes are preferred to all feudatory princes Yea and if Scotland had been Vassals to England for the Crown of Scotland the Kings of England had certainly craved and obtained the precedency from other Kings upon that account since he had been Rex Regum And since France craved to be preferred to Spain because the king of England was his Vassal as Chassanaeus observes part 5. consider 19. so much rather ought the Kings of England to have been preferred because they might have alleadged that there was a Crown holden of them whereas they held only some Feu-Lands of the kings of France 5. Not only Christian Princes and Councils but even Popes have declared Scotland to be a Free Kingdom and Independent from England And thus Pope Honorius allowed to Scotland That is Subjects should not be obliged to answer by way of Appeal to any Court without their own Kingdom salva solummodo authoritate sedis Apostolicae 2. Edward king of England having petitioned Pope Innocent the IV. that the Kings of Scotland might not be Anoynted or Crowned without his Knowledge quod non posset se facere ipso inscio in Regem coronari vel inungi the said Pope did refuse the same presentibus procuratoribus parium in Consilio Lugdunensi satis per hoc determinans Regnum Scotiae Regno Angliae non subesse 3. The King of England having likewise petitioned the same Pope Innocent that he might have Liberty to Collect the Tiths of Scotland since he had Right terrarum omnium suae jurisdictioni subjectarum the same was also refused 4. Pope Boniface the eight does in a Letter to Edward king of England Declare That ad celsitudinem regiam potuit pervenisse qualiter ab antiquis temporibus c. quodque Regnum Scotiae sicut accepimus a progenitoribus tuis Regni Angliae Regibus feudale non extitit nec existit c. The copy of which Letter I have at present and Duchesne writing the History of Great Britain does pag. 661. relate That le mesine Pape renvoya d' autres Lettres au roy d' Anglterre pour soustenir que le royaume de Escosse ne dependoit point d' Anglterre que contre le droit Divin la justice il s' en vindicoit la subjection That is to say The same Pope sent Letters at the same time to the King of England in which he maintained That the Kingdom of Scotland was no way subject to that Kingdom and that his seeking to subject it to him as superiour was contrare to the Law of GOD and Men. 6. By the Feudal Law and Law of Nations a Vassal cannot Mortifie any part of his Feu without the consent of his Superiour because the Superiour by the Mortification looses the Services due to him out of his Feu Church-men being obliged to no reddendo but Praeces Vota And therefore in all Mortifications made by Vassals the Superiours Confirmation is still required and it cannot be imagined but that if Scotland had been a Feu holding of England the Popes their Conclaves and the Monastries themselves would have sought Confirmations from the Kings of England of the Mortifications made by the Kings and Subjects of Scotland there being more Erections of that kind in Scotland than in any Nation of equal Revenue and yet never any such Confirmation was sought or pretended to But on the contrare the Pope still confirms these Erections as made per Reges Scotiae as he does in all other Nations or the Kings of Scotland confirm these Erections if they be made by any of his Vassals and it is observable that the Pope does in these Confirmations designe our King Regem Scotiae and not Scotorum 7. The Historians also of other nations did concurr with those of our Nation in asserting this freedom and thus Arnisaeus the best Lawyer who has writ upon these politick questions does look upon this pretence as a meer fiction lib. 1. cap. 5. Anglus Scotorum regem habebat sibi fiduciarium sive ratione aliquot regionum sive ratione ipsius regni ut nimis audacter asserit Math. Steph. Nam haec vetustate temporis obscuritate authorum sunt incerta And Duchesne pag. 21. speaking of Scotland asserts positively That its Kings does recognosce no Superiour but GOD and is every way a Soveraign Prince notwithstanding of the old pretentions of England Le Roy le possede en toute souverainté sans recognoistre au cun superieur que dieu bien que c ' estoit ancienne praetension des Anglois que le Roy D'escosse est vassal de leur couronne 8. Not only have forreign Princes General Councils and the Lawyers and Historians of other Nations declared Scotland to be a free Kingdom but even the Kings of England have acknowledged this freedom and independency as may appear by these instances 1. The King and Parliament of England have treated with the Ambassadours of Scotland whereas no Superiour can treat with his own Vassal as a forreigner nor can a Vassal send Ambassadors to his Superiour for an Ambassadour must be
hold England in capite of Murmelius a Sarazen King Edgar's being rowed over the Dee by Kenneth king of Scotland is taken off by the former Answer though it were true as it is not nor can it be made appear by a Chronological Computation if the Enquiry were worth our pains The great Instance founded upon the Homage made by the Baliol is as weak since it is known that King Robert the Bruce refused to do Homage to King Edward choosing rather to want a Crown then to be a Vassal for it But Iohn Baliol the other Competitor preferring his Ambition to his Native Country was therefore justly disowned by the Nobility who as Duchesne a Stranger to us observes sent Ambassadours to King Edward to show him that they did Revoke and Disown the Homage made by the Baliol and asserted their primitive Liberty And so hateful an Act was this esteemed in him that he losed the Crown by it whereas had this pretence of England been founded upon any Justice it could never have been so severly either opposed or punished But though Baliol had been a lawful King as he was not King Robert the Bruce's Title being preferable in Law yet could not the Baliol have subjected the Kingdom in Vassalage to England since by the Feudal Law a Superiour cannot superinduce or interpose another Superiour nec sine Vassalli consensu alienare jus suum directum c. 1. § ex eodem descendit de Leg. Lotharii And though some debate that by such Alienations of the Superiority the Superiour forfeits his Right yet all agree that the Alienation is null nulla irrita D. D. in cap. imperialem § praeterea de prohibit alien per Fredric Curt. p. 16. num 3. latissime Rosenth cap. 9. conclus 62. Whereas it is pretended That the Parliament of Scotland consented It is Answered That any Parliamentary Consent is altogether denyed For though we have exact Records of all our Parliaments yet there is not so much as Mention made amongst all our Statutes or Books of any Parliament held by Iohn Baliol. And albeit Prin has published all the Records which the English have upon this Subject yet he dares not so much as assert much less produce the Copy of any such Act of Parliament And certainly if there had been such an Act of Parliament not only the Records of that Parliament but that particular Act had been carefully preserved and published and that this Parliament and Statute is a meer Fiction appears not only by our own but Forreigne Historians And it is not imaginable that the greater part of the Nobility and Kingdom having immediatly disowned the Baliol for acknowledging this Subjection that they would themselves have ratified it in a free Parliament But though this were true as it is not yet there is not any Kingdom so Loyal Happy or Invincible but some few Cowards or Rogues may be found in it who may assume the name of a Parliament and disown the true Interest of the Kingdom without any Warrand from the People for that effect And I would very willingly know if England remains still Vassal to the Pope because a Monk prevailed with King Iohn to hold his Crown of him or if Portugal should not be acknowledged a free Crown because Spain did once elicite from them a National Consent by Force of Arms Or if these three or four pretended English Parliaments who acknowledged Oliver Cromwel the Usurper did settle a Legal Right upon him by their Concourse Nor did Prescription Supply here the Original illegality of that Consent for the Scots did immediatly reclame and did within much fewer years than Prescription requires restore themselves to their Liberty under the Conduct of that Glorious Prince King Robert the Bruce for whom GOD did so Miraculous things as did Convince the World how much the LORD of Hosts detasted the Bribry and Cruelty of King Edward the first Et ita res facile redeunt ad suam naturam quae mox rediit divertisse non videtur But to show how great Aversion even that Generation had for any such Submission to the English Monarchy I have set down the Copy of a Letter yet extant under all the Seals of our Nobility directed to Pope Iohn in anno 1320. Wherein they Declare that if their King should offer to submit to England they would disown him and chuse another Not that the power of Electing Kings was ever thought to Reside in our Nobility But because it was represented to them as the Opinion of all Lawyers that a King could not alienat his Kingdom or submit himself by his sole Consent to a Forreigne Prince Since by that Alienation and Submission he does Forfeit his Right to the Crown As to which Letter likewise I think fit to observe to prevent any Mistake as to the Calculation of the number of our Kings that the Writers thereof have as is usual with us numbred amongst our Kings such of the Royal Family as were for the time Regents or Viceroys The Letter follows SAnctissimo Patri in CHRISTO ac Domino Domino Ioanni Divina Providentia Sacrosanctae Romanae Vniversalis Ecclesiae summo Pontifici Filii sui humiles devoti Duncanus Comes de Fyfe Thomas Ranulphi Comes Moraviae Dominus Manniae Vallis Anandiae Patricius de Dumbar Comes Marchiae Malisius Comes de Strathern Malcolmus Comes de Levenox Willielmus Comes de Ross Magnus Comes Cathaniae Orcadiae Willielmus Comes Sutherlandiae Walterus Senescallus Scotiae Willielmus de Soules Buttelarius Scotiae Iacobus dominus de Dowglas Rogerus de Moubray David dominus de Brechine David de Grahame Ingelramus de Vmsravile Ioannes de Meneteith Custos Comitatus de Meneteith Alexander Frazer Gilbertus de Haia Constabularius Scotiae Robertus de Keith Mariscallus Scotiae Henricus de Sanctoclaro Ioannes de Grahame David de Lindesey Willielmus Olifant Patricius de Grahame Ioannes de Fenton Willielmus de Abernethie David de Weyms Willielmus de Monte fixo Fergusius de Ardrosan Eustachius de Maxwell Willielmus de Ramsay Willielmus de Monte alto Alanus de Moravia Douenaldus Campbell Ioannes Camburn Reginaldus le Chen Alexander de Seton Andreas de Lescelyne Alexander de Straton caeterique Barones Libere-tenentes ac tota Communitas Regni Scotiae omnimodam Reverentiam filiolem cum devotis pedum osculis beatorum Scimus sanctissime Pater Domine ex antiquorum Gestis Libris colligimus quod inter caeteras Nationes egregias nostra sciz Scotorum Natio multis Praeconiis fuerit insignita Quae de majori Scythia per mare Tirenum Columnas Herculis transiens in Hispania inter ferocissimos per multa temporum Curricula residens a nullis quantumcunque Barbaricis poterat alicubi subjugari Indeque veniens post mille ducentos annos a transitu populi Israelitici sibi sedes in Occidente quas nunc obtinent expulsis Britonibus Pictis omnino deletis
in their respective Robes and Crowns on their Heads Coming before the King they made their Reverence Then they were led up by the Master of Ceremonies some steps and sitting down on their Knees on Velvet Cushions the Lyon made an Harrangue both to His Majesty and to them Declaring to the Noblemen That it pleased His Majesty to promote them to that Dignity and that he desired them to Fear GOD and obey His Power Then he took their Oaths that they should obey GOD his Majesty and mantain the Religion then profest Thereafter the Lyon delivered to His Majesty the Patents and His Majesty redelivered them to the Lyon who gave them to the Noblemen In token that they should obey GOD and His Majesties Laws Afterwards the Lyon delivered His Majesty the Marquesses Coronets His Majesty redelivered them to the Lyon The Lyon put the Crowns on their Heads saying Iohn Marquess of Hamilton Earl of Arran Lord Even c. George Marquess of Huntly Earl of Enzie Lord Gordon and Badzenoch c. The same was Proclaimed furth of the windows by the Heraulds and Pursivants with sound of Trumpet Then were they conveyed to their Seats and placed above the Earles upon the Kings left Hand Trumpets sounding The Lyon desired His Majesty to Honour the Gentlemen who bare the Honours with the Honour of Knight-hood His Majesty consented The Lyon caused them sit down on their Knees at the foot of all the Stage and after he had made an Exhortation to them and received all their Oaths they holding up their Hands and promising to obey all the Injunctions The Lyon presented the Sword to His Majesty who stroke each of them therewith on the Right shoulder and Sir offered the Spur the Lyon first proclaiming their Styls and after the Heraulds and Pursivants at the windows with sound of Trumpet I find this Difference in the Creation of many Earles from what is here set down That the four Gentlemen bear the Honours thus The first the Penon the second the Standart the third Sword and Belt the fourth the Crown and lastly the Lyon bear the Patent in a Velvet bag And that the Lyon offered first to His Majesty the Sword and Belt and receiving it back put it on the Person Nobilitat As also when the King was not present and after His going to England The Ceremony was performed be His Majesties High Commissioner if there was one at the time Or otherwise a Writ was direct to the Lord Chancellor appointing him Commissioner for that Creation And then the first thing that was done after the person to be Created was brought in the Lyon gave the Patent to the Commissioner who gave it to the Register or Clerk of Council to be read And I Observe this in all Our old Creations that if the person to be Dignified was a Lord formerly he was conveyed in be two Lords and the Ceremony of the new Creation being over was conveyed to his place by two of that degree to which he was advanced The English Nobility are sometimes Created by being called in a Write to Parliament under the Designations of Earles Viscounts c. Which way is unknown to Us in Scotland though the King may introduce it at His pleasure The Precedency amongst Subjects is thus Established in both Kingdoms Dukes of the Blood Royal Other Dukes according to their Creation The Eldest Sons of Dukes of the Blood Royal Marquesses according to their Creation Dukes Eldest Sons Earles according to their Creation Marquesses Eldest Sons Dukes Younger Sons Viscounts according to their Creation Earles Eldest Sons Marquesses Younger Sons Barrons whom We call Lords Viscounts Eldest Sons Earles Younger Sons Barrons Eldest Sons Barronets Viscounts Younger Sons But the Officers in England are by Act of Parliament Henry the 8. thus Ranked Lord Chancellour Lord Thesaurer The Lord President of the Privy Council The Lord Privy Seal These four being of the Degree of a Barron or above shall sit in Parliament and all Assemblies of Council above Dukes not being of the Blood Royal. The Lord Great Chamberlain The Lord High Constable of England The Earl Marishal of England The Lord Admiral of England The Lord Great Master or Steward of the House The Lord Chamberlain of the Houshold These last Six and the Kings principle Secretary take place according to their present State So that if they be Barrons they take place above all Barrons If Earles above all Earles If Dukes above all Dukes By a Decree and Establishment under the Great Seal of England 1 o. Iacobi the following persons are thus Ranked Knights of the Garter Knights of the Privy Council The Master of the Wards and Liveries The Lord Chancellor and Under-Thesaurer of the Exchequer The Chancellor of the Dutchy The Chief Justice of the Kings Bench The Master of the Rolls The Chief Justice of the common Pleas The Chief Barron of the Exchequer The other Judges and Barrons of the degree of the Coif The Younger Sons of Viscounts The Younger Sons of Barrons The Barronets The Precedency amongst Our Nobility differs nothing from what is here set down England and We agreeing in all points since the Union of the two Kingdoms And especially since the Coronation of King Charles the first at which time he Declared he would have it so But to prevent Differences betwixt the Nobility of both Kingdoms It was Ordered That all those of the same Degree in England should in England take place from all those of the same Degree in Scotland And all those of the same Degree in Scotland should in Scotland take place of the English That is to say All the English Dukes should take place in England of all the Scots Dukes And all the Scottish Dukes in Scotland should take place of all the English Dukes which was very Just and Suetable to the Laws of Nations But as to the Ranking of Our Officers We Differ much from England For clearing whereof it is fit to know That with Us there were Officers of the Crown and Officers of State The Officers of the Crown were all Designed of Scotland as Constabularius Scotiae c. In King Malcom the II. his Parliament The Offices then Extant were The Chancellour the Justice General the Chamberlain the Steward the Constable and Marishal and they are thus Ranked and have their Respective Fees But by the Act 31. Parl. 11. Ia. 6. The Offices of the Crown are Declared to be The Thesaurer Secretar the Collector which Office is now joyned with the Thesaurers the Justice General Justice Clerk Advocat Master of Requests Clerk of Register And though these be called Officers of the Crown there I conceive they Differ not from the Officers of State And these words Officers of the Crown and Officers of State are now Equipollent Terms so far that all the Officers of State are Officers of the Crown by this Act But the High Chamberlain Constable Admiral and Marishal are Officers of the Crown but are not Officers of State
c. By Act of Parliament likewayes 14. May 1661. The Lord President of the Session is Declared to have Precedency from the Register Advocat and Thesaurer-deput And the Register and Advocat 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 Advocat 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 President in all Courts Act 1. Parliament 1. Charles the second which Act of Parliament was made to declare that he was Presedent 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 sayes 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 Barres within which the Judges did sit inclosed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is clear by Cassiodor lib. 11. Epist. 1. Those Cancellarii of old were in effect the Clerks and the Chancellour is so called now Because he signs all the publick 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 Iustitiae 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 Chancellour is placed before all the Officers and sometimes many of the considerable Earles are placed betwixt him and the rest of the Officers Thus King Alexander grantes a Charter Testibus Willielmo de Bosco Cancellario meo Malcolmo Comite de Fyffe Alano Senescall◠Scotiae c. Some think that there is a Difference betwixt Cancellario meo whom they make Director of the Chancery and Cancellario Regni whom they make High Chancellour And others make a Difference betwixt Cancellarium Regni Cancellarium Regis as Spotswood in his History observes But I find that the High Chancellour 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 onely a servant to the Chancellour of old For in King Malcolms time amongst the Fees to be payed to the Chancellours Clerks there is a Fee to be payed 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 Iusticiarius that is to say The Justice General is placed next the Chancellour but afterward Scotland was divided in two Justitiaries on upon the South-side of Forth who was called Iusticiarius 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 President of the Session the Justice Court being older than the Session And being President of a supream Court he is to preceed any Inferiour Member of any other Supream 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 preceed the Register This place likewise has been generally possessed by Noblemen and is the same with Us that the Chief Justice of the Kings Bench is in England And this Jurisdiction was amongst others possessed at Rome by the Praefectus Praetorio who was their chief Magistrat 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. Ia. 6. The Justice Clerk be named before the Register and Advocat yet that is onely 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 Iusticiarius Scotiae Designs himself Hostiarius Iusticiarius Scotiae which shews that Hostiarius was a preferable Office and this I take to be Commander of the Kings Hoast For Ostiarius is not written with an H and is a meaner Office then Justice General This Charter is granted in anno 1253. to the Abbacy of Aberbrothick and though others may mistake the Ranking of a mans 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 Chancellour 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 Iohanne Domino Drumond Iusticiario nostro Ricardo Murehead Secretario nostro Waltero Drumond nostrorum Rotulorum Registri ac a Consiliis It is Observable that the Officers were oft-times 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 Iustinian and equall'd 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 Burbon I find the Magnus Camerarius placed before the Thesaurer in a Confirmation anno 1520. to the Abbacy of Aberbrothick
not to restore the Precedency in prejudice of those who had acquired titles betwixt the Forfeitour and Restitution A clear instance whereof we have in the Earl of Crawfurd who being Forfeit for Rebelling against K. Iames the 2. at the Battel of Brichen and being thereafter restored he was not restored so as to take place from the Earl of Huntly But yet it is observable that the 4. Act. p. 16. p. 87. I. 6. which appoints restitutions per modum gratiae not to prejudge third paties speaks onely of lands possessions and such other parts of the Estate forfeited but speaks not of Honours and therefore some conclude that persons forfeited may be restored to the Honours of their Family notwithstanding the Precedency by the rest of the Nobility in the interim which is the rather received amongst us that the King may with us creat an Earl with the Precedency from all others as he could have done in England before the statute of Hen. 8. For I find by the Herauld records that Edmond of Hadham is created Earl of Richmond quod habeat sedem in Parliamentis alibi proximum ducibus And Henry Beauchamp Earl of Warwick is made primus Comes Angliae whereas he was formerly almost last and thereafter is created Duke of Warwick with this addition That he shall go Mate-like with the Duke of Northfolk and above the Duke of Buckingham And since our Kings had this prerogative and that they have not restricted themselves they might have it still though they should use it sparingly QVESTION XXXVI Whether have the Ambassadours of Monarchs the Precedency from other Monarchs or Princes themselves if personally present even as the Kings would do whom they represent And if in all cases an Ambassadour ought to have the same Precedency that is due to his Constituent To this it is answered That though an Ambassadour represents the Monarch from whom he derives his Commission and that some learned Lawyers do upon that account assert that they are to have the same Precedency that is due to their Master and so to be preferred to all Kings and Princes though present to whom their Constituents would have been preferred Paschal de Legat. cap. 38. yet the custom of Nations has run contrar to his opinion in preferring even inferiour Kings and Princes And it is decided amongst the Princes of Germany Tit. 25. Aureae Bullae Car. 4. And in anno 1542. the Ambassadours of Charles the fifth Emperour were decerned to cede the Precedency to Ferdinand King of the Romans and the reasons are 1 o. Because Princes found it their Interest to have no Subject compete with them or to have their own presence lessened by such marks of Disrespect 2 o. In a Prince who is present there resides True and Original Majesty whereas an Ambassadour is onely dignified with a Supposititious and Representative Honour shining if I may so say with borrowed rayes And of this opinion are Brunus de Legat. lib. 5. cap. 8. and Costa Consil. 44. though Zouch de Iure inter Gentes seems to favour Paschals opinion It may be likewise doubted whether an Ambassadour does retain the same Precedency due to him as Ambassadour when the Prince who sent him comes to the place himself And this was debated by the Earl Marishal who was sent over Ambassador to Denmark when K. Ia. 6. went over in person thereafter and brought over Chancellour Maitland with him who challenged the Precedency from the Earl Marishal alleaging that an Ambassadours Power evanishes upon his Princes appearance Which debate was decided by King Iames in favours of the Chancellour albeit the Earl contended That as his Ambassie ceased upon the Kings coming thither so did the others Office as Chancellour cease in a forreign Kingdom and therefore that he should have preceeded as being an Earl The former opinion preferring inferiour Princes when Personally present 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is so much the rather true that Ambassadours are not when they come to visit the Judicatures of the Nations where they preceed allowed the same Precedency And generally it is given as a rule by Lawyers that in locis actibus Iudicialibus Legatis praecedentia solita non servatur non pro dignitate Regis aut alterius a quo ablegati sunt Gothofred de Iure praecedentiae cap. 7. num 47. so that though Kings themselves would sit above all these Judicatures yet their Ambassadours sit but among them Thus the Venetian Ambassadour was onely placed in the Parliament of Paris after the Bishops as Rupan observes lib. 7. cap. 10. Though Ambassadours have the same Precedency that is due to their Constituents yet Agents and Residents of Princes have not nor has the Popes Nuncio the Precedency that is due to an Ambassadour Gothofred ibid. for these in effect are sent oftentimes to prevent the Debates that might-fall amongst Ambassadours and therefore the French King sends very rarely his Ambassadours to the Emperours Court because he knows that Court would give the Spanish Ambassadours the Precedency which he thinks is due to his Ambassadours QVESTION XXXVII Whether have such as have been Ambassadours or have been in such honourable Imployments any Precedency thereby when their Imployment is ended To which it is answered That though after an honourable Imployment is over whether by Dimission or by the expyring of the Commission the Precedency thereto annex'd ceases with it Yet the Prince sometimes gratifies the person with a continuance of some Precedency and Honour And in the Records of the Herauld Office in England I find that in a Court Marishal Sir Dudley Diggs and Sir Thomas Smith were adjudged to have the Precedency from other Knights-Batchelours of their own Degree because they had been Ambassadours though their Commission was expired In the customs also of most Nations a Judge retains still amongst those of his own Bench the same Precedency that he had formerly before his Dimission or his being laid aside except he has been laid aside for a Crime or Fault QVESTION XXXVIII What place is due to the Representatives of Subjects such as Viccars Deputs Assistants c It would seem that as Ambassadours have the same place that is due to him whom they represent so those who represent Subjects as Viccars who represent the Bishop Deputs who represent Judges ought to have the same place that is due to those whom they represent I find that L. 7. de Bonorcodicil C. Theod. there are four Dignities Ranked viz. Praefectorum Proconsulum Vicariorum Exconsularium And certainly in those Acts wherein they represent their Constituent they have the same Precedency that is due to him Felin in cap. cum olim de Offic. de Legat. And thus by the Canon Law the Bishops Viccar is preferred to the Dean and Arch-dean and not onely are these representative Dignities preferred in the acts of their Jurisdiction but even in all other deeds which necessarily preceed or follow them And some Lawyers are of