or surrendring the same to the prejudice of his Heir though I am informed that there were very many instances adduced for clearing the contrare opinion QVESTION 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 it self it destroys also in that case the Precedency as if a Knight were degraded for Cowardliness he is no more a Knight and so looses the Precedency annext to the Order L. 12. de Dignit si Iudices se furtis sceleribus fuerint comaculasse convicti ablatis codocillorum insignibus honore exuti inter plebeios habeantur QVESTION XXXII If a person do not of himself resign but be called from his Charge by the Prince to another Imployment and one provided to his place and returning thereafter to his first Dignity by the Princes 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 Counsellour in that Parliament to a Bishoprick and his place being filled by another he thereafter was called back to be a Counsellour 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 ought to preceed according to his first instalment but the reason there was that the Prince had expresly 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 therafter sit in the lowest place meerly because he was once called away to a higher preferment And in my opinion If the Prince had not so expresly 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 alleaged 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 possest 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 imployment or where he is called to an imployment of a different and incompatible Nature as from being a Judge to be a Collonel 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 onely take place where the person formerly installed was called away or preferred without any such Declaration of the King in his favours QVESTION 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 onely 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. QVESTION XXXIV Two having Offices and changing one with another their Imployments for a time whether when they Resume their former Imployments do they return to their former Precedency It is answered Where two did exchange Imployments and thereafter returned to their old Imployments Lawyers are of opinion that in that case they return to their former Precedency and that their imployments are not looked upon as new imployments because the one possest 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 possest 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 Imployments to be new as to both QVESTION 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 preceed by vertue of his new title onely 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 onely by way of Grace there the Fault and Sentence still remains though the punishment be taken off and there the Restitution ought
any who have sworn Alleadgeance and live within the Spainish Dominions though not within Milain since then the English would not allow us the Right of Sucession nor the other benefits due naturally to Subjects it was strangely monstruous and repugnant that they designed to make the World believe that we were Subjects It is also very remarkable that if our Kingdom had been only a Feu holding of England our Nobility could not have precedency from others according to their Antiquity for all the Nobility of the Superiour Kingdom ought in the opinion of such as writ of precedency to be preferred to these who live in the Vassal-kingdom 10. If Scotland had been a Feu to England the king of England as Superiour would have had the keeping of our young Princes and the disposing of them in Marriage and the Feu would have been in his hand during their Minority that being implyed in the Right of proper Feus by the Feudal Law And this must be presumed to have been a proper Feu as all Feus are presumed to be except the Vassal can prove that the Nature of the Feu was impropriated for the Vassals Advantage But yet no king of England did ever pretend to the Guardianship of our young Princes nor to name Governours during their Minority But on the contrare Alexander king of Scotland having left only a young Princess called Margaret who was Nice to the King of England he did not pretend to the keeping of the young Princess but intreated that she might be married to Edward the second his son and that if there should be no issue of that Marriage Scotland should remain a free Kingdom as it was formerly inthe dependent from all pretentions of the kings of England Which is likewise another acknowledgement made by the kings of England themselves of the independency of Scotland And if the kings of England had been Superiours of Scotland there would have been some Vestige of this Superiority to be seen in our Laws whereas all our Laws call still our Crown the Imperial Crown of Scotland Or in our Coyne all Coyns bearing some Impressions from the Superiour And the Kings of England might have remanded from our Courts or out of our Country such as had committed crimes against their kings or Laws It being an undoubted principle of the Feudal Law That qui habet dominium directum potest jurisdictionem suam explicare tam in territorio Vassalli quam in suo habet enim dominus jurisdictionem cumulativam cum Vassallo But so it is that it can never be alleadged That the Kings of England offered to exerce any Jurisdiction in Scotland or did require any criminals who had fled into Scotland to be delivered up to them Nor did ever the English pretend to punish such Scotsmen as were taken fighting against them abroad as Traitors and Guilty of Treason as certainly they would have done if they had been Vassals to England But on the contrair the English did also ransome them and use them every way as they did other Strangers and Forreigners 11. The Scots having intended a Declarator of Freedome against Edward the first king of England the Process was delegated by Pope Boniface the VIII to Baldredus one of the greatest Lawyers of that time who considered very fully the Reasons proponed hine inde by both parties and having made a full Report to the Pope the Pope did very sharply reprove the king of England and declared that Scotland did not depend upon it any manner of way and that the English had attacked Scotland most unjustly against all both Divine and humane Laws as Duchesne observes pag. 66. The Letter it self that was writ to the king of England with all the process which was called Processus Baldredi being yet extant in Fordons Chronicle And it cannot be denyed but that England might have expected much more favour from the Pope than Scotland could since they payed him a constant Revenue called Peters pence and since England was known to afford much greater Casualties to the Pope then could have been expected from this kingdom In stating the Arguments which are proposed by the English for proving that the kings of Scotland were Vassals for their Crown to England I shall begin with these which were insisted upon by King Edward the 1. in the former process The first was That Brutus descended from the Trojans did conquer Britain and divided it amongst his three sons to the Eldest of whom called by Historians Locrin or Locuus as he is termed in that process he left Logria now called England To the Second called Albanactus he left Albanie now called Scotland To the Third called Camber he left Cambria now called Wales But Humbert King of the Huns having killed Albanactus Locrin the elder to revenge his brothers Death did kill Humbert and reunite Albanie to Logria or England The second was That Donvall king of the Britans killed Staterius king of Scotland who rebelled against him and became Master of the whole Isle which Dunvall having two sons Belinus and Brounus he left the Superiority of Scotland with England to the eldest and the property only of Scotland to the second The third was That Arthur king of the Britans having overcome Scotland he gave that kingdom to Angusell who acknowledged him as his Superiour and carried the Sword before him The fourth was That Aldestan king of England having conquered Constantine king of Scotland did pray to GOD that by the intercession of St. Iohn de Benlaco he might by a miracle be declared the just Superiour of Scotland Whereupon he did strick with his sword at a Rock near Dumbar and made a Gape in it a full yard in length The fifth was That William king of Scotland did acknowledge himself Vassal to William the Conquerour Alexander king of Scots acknowledged himself Vassal to king Henry And that the Nobility of Scotland called in the said Edward to arbitrate the Differences betwixt the Bruce and Baliol. Peter Heylen speaking of Scotland in his Geographie pag. 1289. affirms That the Kings of Scotland were still Vassals to the Crown of England which he endeavours to confirm by these Arguments 1. By the Homages Services and other Duties done by the kings of Scotland to those of England Malcome the third doing Homage to William the Conquerour as William one of his Successors did to Henry the second and that not only for three Counties in the North of England or the Earldome of Huntingdoun as is by some pretended but for the very Crown it self Kenneth the third being also one of those Titulary or Vassal Kings who rowed king Edgar over the Dee 2. By the interposing of king Edward the first and the Submission of the Scots to that interposing in determining the Contraversie of Succession betwixt Bruce and Baliol as in the like case Philip the fair adjudged the Title of Artoys which was holden of the Crown of France and then in question betwixt the Lady Mawd
upon the 20. of May 1619. declare That the Ladies of the Privy Chamber should in time of mourning take their places as if the Queen were living till the Funerals were ended and that the Queens Chamberers should for the present Funeral go before Countesses women without prejudice to Countesses women at any time thereafter It is fit to observe That the Wives and Daughters of all Dukes Marquesses Earles c. do take the same place that the Husbands and Sons do conform to the Precedency formerly exprest pag. 35. And I find in the Heraulds Office of England an establishment settled thus amongst women by Iasper Duke of Bedford and other Noblemen by warrand from Henry the fourth The Wives of Dukes of the Blood Royall The Wives of other Dukes The Wives of the eldest Sons of Dukes of the Blood Royal. The Daughters of Dukes of the Blood Royal. The Wives of Marquesses The Wives of the eldest Sons of Dukes The Daughters of Dukes Countesses The Wives of the eldest Sons of Marquesses The Daughters of Marquesses The Wives of the younger Sons of Dukes The Wives of the eldest Sons of Earles The Daughters of Earles The Wives of Viscounts The Wives of the younger Sons of Marquesses The Wives of Barons that is to say our Lords The Wives of the eldest Sons of Viscounts The Daughters of Viscounts The Wives of the younger Sons of Earles The Wives of the eldest Sons of Barons or Lords The Daughters of Barons The Wives of Knight-bannerets The Wives of the younger Sons of Lords The Wives of Knight-batchelours The Wives of the eldest Sons of Knights-bannerets The Daughters of Bannerets The Wives of the eldest Sons of Knight-batchelours The Daughters of Knight-batchelours The Queens Maids of Honour The Wives of the younger Sons of Banerets The Wives of the younger Sons of Knight-batchelours The Wives of Esqueirs The Wives of Gentlemen The Daughters of Esquiers The Daughters of Gentlemen The Wives of Citizens The Wives of Burgesses From all which it is to be observed that the wife of the eldest Son of any degree takes place before the Daughter of that same degree and both of them take place of the younger Sons wife of the preceeding degree Thus the Lady of the eldest Son of a Marquess preceeds the Daughter of a Marquess and both preceed the Ladies of Dukes younger Sons Item the Wife of the next degree as a Countess preceeds the Lady of the eldest Son of the preceeding degree as of a Marquess and the Daughter of a Marquess 3 o. This holds not only in comparing degrees amongst themselves but also in comparing Families of the same degree amongst themselves as for instance though the Marquess of Dowglas Lady would give place to the Marquess of Huntlys Lady yet the Wife of the Marquess of Dowglas eldest Son would take place from the Marquess of Huntlys Daughter 4 o. Though of old with us in Scotland the Wives of Lords did contend that they had the Precedency from the Daughters of Earles Yet since that Letter written by King Charles the first at his Coronation we follow the custome of England in preferring the Earles Daughter who takes place immediately after her eldest Brothers wife 5 o. Though the Daughter of a Marquess gives place to the wives of the eldest Sons of all Marquesses yet if that Daughter be an Heiress and the Daughter of an elder Marquess then she takes place from the wives of the eldest Sons of all younger Marquesses as Segar observes pag. 240. It is likewise observable that since this Ranking under Henry the fourth there are several new additions For after the wives of Lords eldest Sons and Lords Daughters are Ranked the Wives of Privy Counsellours and Judges Wives of the younger Sons of Viscounts and of Lords or Barons the Wives of Baronets the Wives of Bannerets the wives of the Knights of the Bath and the Wives of Knights-batchelours c. as in the former List. Some considerable Questions concerning Precedency Resolved QVESTION I. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be Considered or what they were formerly To which it is answered with this Distinction viz. Either the Kingdom or other places betwixt which Competitions are Stated remain the same that they were in their Substantials and then the former Precedency is still continued as for instance Though Rome whilst it was a Common-wealth did sometimes admit of a Dictator who had indeed the power of a King yet they remained still the same Common-wealth and therefore being the same in substantials they ought to have the same Degree of Precedency continued Or when two or three Kingdoms are without any alteration United in one as the Kingdoms of Scotland and England were United into the Kingdom of Great Britain under Kings in the same Race who succeeded to both as is fully Demonstrated by Alb. Gentil pag. 82. and this is likewise clear from L. proponebatur ff de Iudiciis l. 24. ff de Legat. 1. But where there is a substantial alteration called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there the former Condition is not considered but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or present condition of the places in Competition is that which ought to be considered And thus when a Kingdom comes to be Conquer'd by a Stranger and by a Strange and Forreign Nation there the State of the Kingdom is absolutely Innovated especially if the Laws of the State be altered And therefore the French Lawyers are of Opinion that the Precedency of England ought onely to be Computed from William the Conquerour Because at that time a Stranger and a Strange Nation did conquer the said Kingdom and the Fundamental Laws of it were much Innovat and if this be not an Alteration none can be For the Antiquity of Land cannot give Precedency for all Land was Created together and there are few Nations so Conquest as that the former people do not remain so that there can be no Precedency upon that account though some who are extravagant in their Zeal for their Countrey doe Argue its Precedency from the first Ages of the World as Vasquius does that of the Spanish Empire in deryving it from Tubal Cain praefatio in Contravers Illust. QVESTION II. Whether a Kingdom becoming a Common-wealth or a Common-wealth a Kingdom does their former Precedency remain This Question has two Branches wherein the Difficulties differ The first is Whether that Town or Place which was a Republick having become a Monarchy or Principality ought it to Retain the Precedency due to the former Common-wealth And that it ought to Retain the same Precedency may be Argued Because when one thing is surrogat in the place of another that which is surrogat ought to have the same priviledge with that in whose place it is surrogat surrogatum subit naturam surrogati But so it is that the subsequent Principality is surrogat in place of the former Common-wealth and
therefore ought 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 Republick of Florence was formerly preferred to Ferrara From this Decision some would distinguish betwixt the Case where a Citizen of the former Common-wealth 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 onely holds where one thing is surrogat to an other by common consent and where the Reason of the Priviledge pleaded in the one case remains in the other neither of which can be alleadged 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 seing 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 Republick Usurpes the Government For in that case the former Arguments hold And though Aristotle libro quinto Politicorum sayes 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 therof 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 Emperour quae de Imperio lata est qua populus ei in eum omne suum Imperium potestatem contulit and upon this account it is that the Roman Emperours pretend the same Precedency that was due to the Common-wealth of Rome since the Common-wealth did surrender and transmit to them their power The next Branch of the Question is Whether a Kingdom being turned into a Common-wealth ought to have the same Precedency that was due to the former Kingdom And it would appear that it ought not since in becoming a Common-wealth it is Degraded from its former Dignity Common-wealths 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 onely 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 hindred 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 Kings 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 QVESTION III. Whether he who is Elected to a Dignity ought 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 Ambassadours of Charles the fifth who was then Elected Emperour and the Ambassadours of Francis the first King of France who alleadged that though Charles the fifth was Elected Emperour yet not being Crowned and Anointed the Election being but an incompleat Act could not give him Preference and that it could not was Argued from these Reasons 1 o. Before the Emperours Admission and Consecration he is not called Emperour but onely King of the Romans and therefore he ought not to have the place as Emperour for the King of the Romans is inferiour to the Emperour and the Inferiour cannot have the Superiours place 2 o. If Election could give the Precedency there needed not any further Solemnity For by the Election the person Elected would be Emperour for none can have the Emperours place but the Emperour 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 incompleat Election 4 o. Where there are two Degrees subordinat one to another the Inferiour Degree cannot aspire to that which is due to the Superiour 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 Emperour 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 Emperour 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 inferiour Magistrates who are oft-times 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 followes Power and Administration QVESTION IV. Whether ought One who has been twice or oftner Elected to any Dignity be Preferred to him who was onely once Elected The Roman Emperours have differed in this for the Eldest and the Latest Emperours 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
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 preceed It being pretended that though he is to have the first Nomination and the choise 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 preceeds always him who was never QVESTION 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 onely 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 Grand-sons and Nephews of Kings are excepted from this Rule For though they be Dukes or Earles 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 Oblieged For the Prince being the Fountain of Honour he onely 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 onely considered QVESTION 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 exprest to be Observed It is answered That Ordinarly 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 Defens Civit. Clement 1. de Baptismo yet where the Write had any other design and the Nomination did onely proceed by way of Narration there an Argument from the Order of Nomination is not still Concluding especially Considering that such as draw publick Papers are not always versed in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And thus I have my self seen old Charters wherein the Chancellour is oft-times 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 Iudiciis cap. Pastoralis de Concess prebend But yet in dubious cases where the Person injured cannot otherwise prove his Precedency this ought to bear great weight especially If many such Papers can be shewed of one tenour And if the Office granted by that Commission gives Precedency above what the persons therein named could otherwise pretend to then the first Nomination has the Precedency As when Ordinar Gentlemen are named in the Commission of the Privy Council c. I find also by the old Records of Parliament and Privy Council that the Members of Parliament and Counsellours are in the Sederunts named as they entered into that particular Meetings but now they are named according to their true Precdency QVESTION 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 publick 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 preceeded 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 German Authours observe And this last holds likewise with Us if the Precedency be not clear and was so decided by King Iames the sixth betwixt Blair of that ilk and Blair of Balthaiock QVESTION X. Whether does Appearancy of Blood give Precedency before actuall Investiture and Possession Though it may seem that since Marquisats Earldoms c. being Feudal Honours conferred oft-times 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 expresly 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 QVESTION XI Whether does the apparent Heir his Assuming and Vsing the Title and Precedency of his Predecessor make him lyable to his Predecessors debts and Infer a Passive Title against him as We speak To this it is answered That it makes him not Lyable 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 payed and no man should be made lyable to Debts for enjoying that which cannot pay Debts Nor
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
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
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 Bishops Viccar sent by him to hold a Synod is to have Precedency before all the Chapter not onely in the Synod it self but likwise 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 surrogat for there Surrogatum sapit naturam surrogati But if the Representation flow from the person himself whom he Represents in that case the Representative has onely the Precedency whilst he is exercising the Office or in Actions thereto relating And thus Sheriff-deputs with us have onely the Precedency due to their Constituents whilest they are exercising these Acts which relate to their Office And yet I think that those Representatives of Subjects have even in all extrinsick and indifferent Acts the Precedency due to their Constituents when they meet with others of the same Degree and thus amongst Sheriff-Deputes c. the Precedency is to be given according to the Precedency that is due to the Principal Sheriffs QVESTION XXXIX What Precedency is due to Assessors appointed for Iudges and to extraordinary Iudges 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 onely after the Justices And yet in France I find that Assessors take place after the President and before the other Councellours 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 Earles or Noblemen as by the institution they are oblieged 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 adscriptitiâ— or allecti L. 2. C. ut dignit ord servetur of whom Capitolinus in the life of Pertinax quâ—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 QVESTION XL. Whether can the King Creat now an new Earl and Ordain him to preceed all the former Earles 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 Earles 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 then the other But it may be urged on the Kings part that the King being the onely 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 intire 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 preceed all the rest formerly dubb'd and created because Knights are not exprest in that statute 3 o. We see the King in Scotland does impower Countesses to retain their former Precedency though they marry a Husband of a Rank inferiour to their first Husband And Dukes Daughters even after their Marriage to retain the Precedency due to them as Dukes Daughters 4 o. His Majesty does by new Confirmations transfer the Honours to Hiers Female though the Patents at first were onely granted to Hiers male and so by the not existing of the Hiers Male those Earles who have the next Precedency might aswell alleadge 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 preceed other as he pleases though these may likewise alleadge that there is jus quaesitum to them by their prior Gifts 6 o. His Majesty restores the Sons of persons forfeited to their Fathers Precedency notwithstanding of the jus quaesitum by others medio tempore 7 o. The King has oblieged 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 Successour with the Precedency due to themselves which right being ordinarly ratified in Parliament uses to establish and transfer the Precedency upon the Heir or Successour 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 publick and Legistative statutes and so can bind onely such as consented QVESTION XLI Whether if the King should creat an Earl with Precedency to all other Earles 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 Husbands life To which it is answered That as to the first it was expresly decided in England in the case of the Earl of Notingham that he upon the surrender of the Admirals Office being by King Iames allowed the same Precedency that belonged to Iohn Lord Moubray his predecessour That therefore his Lady should enjoy the same Precedency