the first two Races Because according to the old German Custom the Few and Honours were devided equally amongst the Sons As now all the Sons of a Duke are Dukes there c. But thereafter all the other Children except the Eldest got onely place and Precedency according to their Offices or Dignities until Philip de Valois Succeeded as Prince of the Blood in a remot Degree After which the French thought fit to give Precedency to those who might one day be their King And so all the Princes of the Blood got precedency from all Subjects With Us the Kings Children Uncles and Nephews onely had precedency from all Subjects And in SCOTLAND no remoter Degree preceed as Princes of the Blood For the Families of Hamiltoun Kinghorne Fintrie and others are Descended from Our Kings by lawful Marriages but had no precedency upon that account The first place next to the King is due to the Prince of SCOTLAND amongst Us who is likewise Duke of Rothesay as the second Son is Earle of Ross that being an Appanage inseparable from him by Act of Parliament But at present his Royal Highness is with Us Duke of Albany as he is Duke of York in England It has been doubted Whether the Kings Son Uncle Nephew c. have the Precedency from the Kings Officers in the actual exercise of their Office as at Coronations Riding of Parliaments in which it is the Constables priviledge to ride upon the Kings Right hand and the Marishals on his Left in his return from the Parliament house The Reason of which Difficulty is because these are Acts which follow the office and not Blood and the Nature of the Action requires that they should be posted where they may be most serviceable I find likewise that this hath been Debated in France whereupon in anno 1576. Henry the third emitted an Ordinance in Favours of the Princes of the Blood And with Us his Royal Highness the Duke of York at His Majesties Coronation preceeded all the Officers Amongst the Princes of the Blood the Last descended from the Royal Family has still Precedency accordingly But though this hold in the Branches yet the Eldest of the same Branch will preceed all of that Branch and thus the Prince Palatins Grand-Child would succeed to the Crown before Prince Rupert his Brother though Prince Rupert be several Degrees nearer I find that of old all Church-men were Ranked together and were first Ranked before all Laicks And thus the Parliament of King Robert the first was habito Solemni tractatu cum Episcopis Abbatibus Prioribus Comitibus and even before the Kings Sons Brothers or Nephews Thus King Robert the first grants a Charter to the Abbacy of Aberbrothick Confirming a Ratification made to them be Lundie wherein the Witnesses are Reverendis Waltero Gilberto Episcopis c. Davide Duce de Rothesay Comite de Carrick Carissimo nostro Filio primigenito Roberto Duce de Albania Comite Fyffe Fratre nostro And even the Abbots and Priors were Ranked before them and when any of them were Officers of State they were named according to their Ecclesiastick preferments Thus Iacobo Sancti Andreae Episcopo Galvino Archiepiscopo Glaseuensi Cancellario nostro And in the Session when it consisted of half Church-men half Laicks the Church-men sat on the Chancellors Right hand and Voted first But it does not follow from these Instances that therefore of old any Church-man did take place from the Kings Son no more then that a Bishop took then place of an Earl because he was named before them The Archbishop of St. Andrews was by a special Letter in anno 1626. and Renewed in Ianuary 1664. Declared to have the Precedency from the Chancellor and all His Majesties Subjects In time of Popery he was Legatus natus and both then and now he is totius Scotiae Primas But though by this Letter he is Ordained to take the place of all Subjects yet I think it would not give him place from the Kings Sons Uncles and Nephews though they be likewise Subjects since the word Subjects must be here Interpret according to the Custom of Nations by which these near Relations of Princes are preferred to all other Subjects The Nobility of Scotland were either Declared such by Feudal Erections their Lands being Erected by the King in a Dutchy Earldom c. which did of it self make him a Duke or Earl in whose Favours the Lands were so Erected Or else they got Patents of Honour Declaring them Dukes Earles c. and this is a much later way none being Nobilitated by Patents amongst Us before King Iames the first The third way of Nobilitating with Us is by Creation and Solemn Investiture the whole Form whereof will in all its Ceremonies be best known by the following Narration The Form of the Creation of the Marquess of Hamilton and Marquess of Huntly tuesday the 17 of April 1599. IN His Majesties great Chamber in the Abbay of Holy-rood-house where the like Ceremony was wont to be done being richly hung with Tapistry five Stages or Degrees of Timber were Erected One for His Maiesty on the West-side whereon His Majesties Chair of State was set under the pale of Honour One for the Duke One for the Earles One for the Lords and one for the Knights There was also before the Throne a Table covered with cloath of Gold whereon was laid the Sword Scepter and Crown the Noblemen attending the Ceremony in their respective Seats in their Robes and His Majestie in His Rob-Royal being placed in His Chair The Queen sitting by The Lyon King of Arms and Master of Ceremonies With the Heraulds and Pursivants in their Coats and Trumpets sounding brought in before His Majesty these two Noblemen viz. The Earles of Arran and Huntly the first conveyed be the Duke of Lennox and Earl of Mar the second be the Chancellor and Earl of Caithnes Thereafter the Lyon asked His Majesty If His Majesty would be pleased to promote these Noblemen to further Honours His Majesty answered Yes Then the Lyon Master of Ceremonies with Heraulds Pursivants and Trumpets Conveyed them into the Green Council-chamber where they were Devested of their Comital Robes and Vested in the habit of a Marquess And so were again conveyed to His Majesties presence thus The Ordinary Macers that attend the Chancellor and Session making place Master of Ceremonies Trumpets sounding with the Noblemens Colours at their Trumpets Pursivants in their Coats Heraulds in their Coats Four Gentlemen for each of the Persons to be Created bearing their Honours viz. For my Lord Arran Robert Hamilton of Goslington the Penon Alexander Hamilton of Fenton the Banner Claud Hamilton of Shawfield the Marquess Crown Iohn Campbel of Ardkinlas the Patent For my Lord Huntly Iohn Ogilvy of the Craig the Penon Iohn Crichton of Frendraught the Banner Mark Ker of Ormistoun the Crown Alexander Gordon of Strathdon the Patent Lyon King of Arms. The two Earles conveyed be the forenamed Noblemen
The speciality of Officers of State being That in all Acts or Meetings which concern the State they sit as Members by Vertue of their office as in Parliaments Conventions c. where the Chamberlain and Admiral come not as such nor the Constable and Marishal if they were not Earles The Officers of State have oft contended for Precedency amongst themselves And therefore King Iames did in Privy Council upon the 17. of Iune 1617. Declare That in that and all other Parliaments none should sit as Officers of State save eight and though there should be moe of the saids Officers by Deputation Division or otherwise Yet eight onely should sit which eight he did thus Rank by Act of Council Thesaurer Privy-Seal Secretary Register Advocat Justice Clerk Thesaurer-deput Mr. of Requests And yet His Majesty having appointed Sir Archibald Atchison to be second Secretary and he having contended that his place was to be next the principal Secretary This was Opposed by the Register and Advocat founding themselves upon the said Act of Council It was answered thereto That His Majesty might notwithstanding of the said Act have as many Secretaries as he pleased and by that His Majesty was only Limited to eight Officers of State in Parliament But that notwithstanding thereof he might make use of any eight he pleased and accordingly he had made use of the Chancellor Collector and Comptroller as Officers of State in several Parliaments notwithstanding that they are none of the eight Officers mentioned in this Act Likeas K. Ia. had appointed the Lord Chancellor being a Nobleman to sit amongst the Noblemen and not as Chancellor or an Officer of State The Council did remit this Debate to the King I find that upon the 20. of February 1623. the whole matter of Precedency amongst His Majesties Officers and Counsellors is thus Stated The Lord Chancellor The Lord Thesaurer The Arch-bishop of St. Andrews The Arch-bishop of Glasgow The Earles and Viscounts according to their Ranks Bishops according to their Ranks Lord Privy Seal Lord Secretary Lord Register Lord Advocat Lord Justice Clerk Lord Thesaurer-deput The Lords of the Session according to their Admission Barrons and Gentlemen being Counsellors according to their Admission It is observable from this Act that Lords of the Session have Precedency from Privy Councellors in Scotland otherwise any Counsellor of an elder Admission would be preferred to them And yet in England Privy Councellors are preferred to all the Judges and even to the chief Justices And with Us I find no Privy Councellor take place as such from any person whatsoever which seems very strange For since the Judicatur it self is placed before the Session and that its President hath Precedency from the President of the Session that therefore its Judges ought to preceed the Judges of the Session 2 do Though the Lords of Session are Lords of Council and Session yet there being Secret Councellors gives them a greater nearness and Argues a greater Trust And in all matters of Precedency these are the Chief Topicks for Precedency 3 o. In Law Counsellours are called by the Emperour Pars Corporis nostri l. quisquis C. ad L. Iul. Majest And so to assault them was Treason and is with Us. 4 o. In France this Question betwixt the Members Magni Concilii and the Senators of the Parliament of Paris is Debated by Boerius and he prefers the Counsellours And in Sweden they have place from all the Nobility 5 o. The Lords of Privy Council have more supereminent power then the Lords of Session For they can stop the Precedor of the Justices they can Adjourn the Session they can grant Precognitions moderat punishments c. Notwithstanding of all which such Respect has Our Kings to the Lords of Session who Distribute Justice Equally to the People that they still preferred them to all the Subjects except the Lords of Parliament and their eldest Sons It has been contended by the Younger Sons of Noblemen That they ought to have Precedency from the Lords of Session Because sayes the second Son of an Earl I have Precedency from the Eldest Son of a Lord and yet he has place from the Lords of Session and it is a certain Rule in Precedency That if I preceed you I must preceed him who preceeds you And if an Earles second Son and a Lords eldest Son and a Lord of Session did meet together the Earles second Son could not preceed the Lords eldest Son except he preceeded also the Lord of Session To which nothing can be answered save that the eldest Sons of Peers being presumptive Peers and such as will be Peers It is fit that the Lords of Session who have but a Temporary Precedency should not preceed them But I find that though in England the younger Sons of the preceeding Rank take still the place from the eldest Son of the next mediat as the younger sons of Dukes from the eldest sons of Earles and the younger Sons of Marquesses from the elder Sons of Viscounts And that all the Chain of Precedency is founded upon this Gradation and that it seems that Nature has led men to this Establishment Yet the eldest Sons of Our Lords Lord Barons refuse to Cede to the second sons of Earls and it was so of old with Us and that which may be given as a Reason for this is that it is unreasonable That they who are to be Peers and to have a constant Title should Cede to such as have but a Temporary Honour But if this Reason were sufficient the younger Sons of Dukes should not preceed the eldest Sons of Lord Barons With Us the eldest Sons of Lord Barons are Design'd Masters as the Master of Rosse c. And of old the Uncles of Lords after the Death of their elder Brother though he left a Son were called Masters till the Nephew had a Son For which I know no other Reason but that because they wanted a Tittle they took this For their Father being Lord there was no Degree below to take as the elder Sons of Earles took that of Lord. And I believe that thus the word Master was given in England to meaner People when their name was not known For though the word Dominus was refused by Augustus as importing Slavery which the Romans could not bear rather then from a secret Impulse as St. Augustin sayes In respect Our SAVIOVR was then Born who was the True Master since Sueton tells That Tiberius also refused this Title yet in Complement even then such as were not known were called Domini Obvios sayes Seneca si nomen non succurrit Dominos salutamus and thereafter with the Roman Slavery this Title grew from being a Complement to be a Duty And thus the Grecian Emperour was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the eldest son 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and from this Title of Master came Meship amongst Us which was given to all such as had not a special Title as Lord Sir
presence of King Iames it was determined in favours of the younger sons of Viscounts and Barons But at the same time it was declared That such Bannerets as should be made by His Majesty or Prince of Wales under the Kings Standard displayed in an Army Royal As also the Knights of the Garter Privy Counsellours Master of the Court of Wards and Liveries Chancellour and Under-Thesaurer of the Exehequer Chancellour of the Dutchy Chief Justice of the Kings Bench Master of the Rolls Chief Justice of the Common-pleas Chief Barons of Exchequer and other Judges and Barons of the degree of the Coif should have place and precedency both before the younger sons of Viscounts and Barons and before all Baronets by which some alterations may appear from the Ranking appointed by Henry the fourth Beside what has been formerly observed in the description of Knights Baronets I find that of old a Banneret or a Ban-rent has been with us a title higher than a Baron for by Act 101. Parl. 7. Ia. 1. Barons may choose their own Commissioners but Bishops Dukes Earles Lords and Ban-rents are to be summonded to Parliament by the Kings special precept And it is probable that these Ban-rents were Knights of extraordinary reputation who were allowed to raise a company of men under their own Banner but now it is commonly taken for such as are Knighted by the King or Prince under the Royal Standard in time of War But I conceive that those could not now sit in Parliament upon the Kings precept the former Act of Parliament being in desuetude They have the precedency from Baronets though their Wives have not this being but a temporary Dignity and the other an heritable Barons in England are Lords with us but a Baron with us is properly he who has power of pit and gallows And yet of old I conceive that Lords and Barons were the same for the Statutes of K. Robert 1. bear to be made in his Parliament holden at Scoon with Bishops Abbots Priors Earles Barons and others his Noblemen of his Realm And in Our old Original Acts of Parliament I find that the Lords and Barons are put in one column undistinguished and under the common name Barons And in the first Parliament of K. Ia. the 4th I find the Master of Glames i. e. the Lord Glames eldest son sitting inter Barones Now the Lords are called the Great Barons and the rest are called Small Barons in the 101. Act. 7. Parl. Ia. 1. and ever since But yet I find by the 166. Act. 13. Parl. Ia. 6. every Earl or Lord payes 2000. pounds for Lawborrows and every great Baron 1000. pounds but by great Baron there is meant a Baron of a considerable estate because that Act was to proportion the Surety to be found to the estate of him who finds the Surety The old Barons or Lairds amongst us especially where they are Chiefs of Clans or the Representatives of old Families that were Earldoms as Pitcurr is of the Earl of Dirleton and as Chief of the name of Halyburton have never ceded the Precedency to Knights-Baronets much less to ordinar Knights Though the other pretend that a Baron is no name of Dignity and that Knights-Baronets have a special priviledge that there shall be no degree betwixt them and Lords except the Bannerets And though militia non est per se dignitas Chassan fol. 344. yet generally it is believed that next to Knights-Baronets succeed Knights-Batchelours and next to them our Lairds or Landed-Gentlemen though a Laird in effect is but the corrupt word of a Lord. Amongst such as profess Sciences the Ranking goes thus uncontravertedly 1 o. Such as profess Theology 2 o. Such as profess the Canon-Law 3 o. The Civil-Law 4 o. Philosophy 5 o. Medicin 6 o. Rhethorick 7 o. Poescy 8 o. History 9 o. Grammer 10 o. Logick 11 o. Arithmetick 12 o. Geometry 13 o. Musick 14 o. Astronomy Chassan de gloria mundi pars decima And amongst these such as are Doctors preceed these that are not and amongst Doctours the priority goes by Age. In Towns These who inhabit Cities are preferred to such as inhabit Burghs and generally those in the Metropolitan or capital City are preferred to all the rest And those who have born Magistracy are even when their Magistracy is over preferred to all others And so far is this Precedency observed that 1 o. A younger Alderman or Bailie takes not Precedency from his Senior because he is Knighted or as being the elder Knight as was found in the case of the Alderman Craven who though all the rest of the Alderman were Knighted at the Coronation of King Iames kept the precedency formerly due to him as Senior Alderman But though this hold not onely amongst Aldermen but that even all Knights of the Countrey being Burgesses of a Town do cede to these who have been their Magistrates in it as to publick meetings relating to the Town Yet it is doubted whether such a Knight will be oblieged to give place to an Alderman or Baily in a neutral place But it is determined in the Heraulds Office of England that all such as have been Mayors of London that is to say Provosts with us do take the place of all Knights-batchelours every where because they have been the Kings Lieutenants It is there likewlse remarked That Sir Iohn Crook Serjeant at Law was Knighted before any other Serjeant his Ancient and standing upon Precedency by reason of his Knighthood It was adjudged against him by the Judges viz. that he should take place according to his Serjeancy and not after his Knighthood yet his wife took her place of a Lady before other Serjeants wives The Members of Courts do take place amongst themselves according to the precedency of the Courts where they serve as the Clerks of the Privy Council take place of the Clerks of the Session In Families likewise the Chief of the Family takes place of any Gentleman of the Family And though generally it be believed that Gentlemen have no precedency one from another yet Reason and Discretion do allow that a Gentlman of three Generations should cede to a Gentleman of ten if there be not a very great disparity betwixt their Fortunes and that for the same Reason almost that a Gentleman of three Generations claims precedency from any ordinary Landed-man who was newly acquired his lands CHAP. IX The Precedency due to Women WOmen before their Marriage have Precedency by their Father but there is this difference betwixt them and the Male-children that the same Precedency is due to all the Daughters that is due to the eldest though it is not so amongst Sons and the reason of the difference seems to be that Daughters would all succeed equally whereas the eldest Son excludes all the rest But if this be the adequat and true reason then where the Estate and Honours are provided to the eldest Daughter onely excluding the rest they ought not to have the same
Grand-father is because by the right of Representation her Fathers Family comes in the Grand-fathers place And to shew that this Argument viz. Your Father had not the Precedency of me therefore you cannot have it of my Daughter is a weak Argument in cases of Representation may appear from this That if it were a good Argument the younger Earl might aswell say to that Lords Son Your Father never took the place of me so neither can you And though it may be Answered to this Argument that the Disparity betwixt the Brother and Sister lieth in this That the Son Represents the Grand-father but the Daughter does not Yet if We consider it nearly even this Answer is Fallacious For though the Daughter Represents not the Grand-father yet the Fathers Family Represents the Grand-fathers and so participats all the Honours of the Grand-fathers Family by that Representation And as the elder Brother becomes an Earl Because if his Father had lived he had been an Earl so she ought to have the Precedency as an Earles Daughter because her Father would have been an Earl for the same Reason QVESTION XVII Whether if the elder Brother be Mad or Dumb c. does the second Brother get the same Precedency as if his Brother were dead I have heard this case much Debated some Contending That such as were Incapable of succeeding were to be Reput as dead per cap. 1. an Mutis Surdis it is expresly declared that such as are born Deaf or Dumb or are naturally Idiots shall not Succeed But others thought that even these are to Succeed but have onely their nearest Agnats given them for Curatours and so they are Heirs And consequently the Precedency is not due to their nearest Friends during their Life and they may have children who would exclude their nearest Agnats I find some Lawyers distinguish betwixt such Defects as are Natural and follow the Havers from their Birth and these Defects do Exclude from the Succession so that the next Heir has the same Precedency as if his elder were dead if the Succession be of Kingdoms or Fews that have a Dignity annexed to them But in private Rights and where the Defects are Accidental they assert that the Right remains with the Heir though defectuus and consequently he retains also the Precedency Tiraquel quaest 23. QVESTION XVIII Which of two or moe Twins ought to Preceed when it is Contraverted which of them was first Born We have a remarkable instance of this Gen. 38. where the Mother desired the Scarlet threed to be bound about his wrest who should be first Born and as to this point Lawyers have differed very much For some think that the Estate ought to be devided amongst the Pretenders if it be divisible of its own Nature Or if it be indivisible the Superiour may prefer either he pleases if the Succession be of a Few Or the Decision may be referred to Lot in privat Persons Or to the Vote of the Representatives of the Kingdom if the Succession be to a Monarchy Some likewise are for the Brothers possessing by turns and alternately and though one Witness be not sufficient generally to Establish the Right of Succession yet if any one Woman was onely present her Testimony would certainly prefer either necessity forming it self into a Law here as in other cases vid. Tiraquel de Iur. primi Gen. quaest 17. QVESTION XIX Whether do Natural Children Born before a Lawful Marriage preceed And should they be preferred to the Children Born in a Lawful Marriage if they be Legitimated thereafter This case did exist in a most illustruous instance in Scotland For King Robert the second having begot a Son upon Elizabeth Mure he thereafter Married Eupham Daughter to the Earl of Rosse and had by her the Earles of Strathern and Athol after which having married the said Elizabeth Mure that Marriage did Legitimate her Children and by Act of Parliament her Children were by a Recognition and acknowledgement of Parliament preferred to the Children Born in the Lawful Marriage The Reasons pro and contra urged in that Debate at that time are now unknown But the Arguments which might have been urged in the case are 1 o. That a Son so Legitimated would seclude without all Contraversie all Uncles and other Agnats Therefore by the same he should Seclude his other Brothers § si quis autem defunctis Authent quibus mod nat cap 1. qui Filii sunt legit 2 o. Legitimation is Retrotracted and drawn back to the time of the Nativity cap. tanta qui fil sunt legit and Legitimation puts the Person so Legitimated in the same Condition as if he had never been a Bastard L. si quis Filio § pen. ff de injust Test. and this is bestowed as a particular Respect upon Marriage and its Sacred Character and to invite men to make Satisfaction for the wrong they have done 3 o. By the Roman Law those that were born in Captivity were not capable of Succession but how soon they were Ransomed and had returned they were restored to the Right of primo-genitor and preferred therein to those who were thereafter born at Rome And therefore since such was the Force even of a Civil and unreasonable Fiction much more ought greater Force to be allowed to Legitimation which is founded upon so Just and Pious Principles 4 o. Quo-ad the Right of Succession the time of the Defuncts death to whom he is to succeed does regulat the quality of the Succession And therefore since the Person Legitimated was capable of Succession the time the Defunct died and was then likewise the eldest he ought to Succeed as eldest whatever his Condition was the time of his Birth L. post Consanguineos § proximam ff de suis Legit. nec enim prius debet de cujusque conditione queri quam haereditas vel legatum ad eum pertineat L. in opportet ff de Legat. 2. 5 o. The eldest Son was always eldest and was onely hindred from this Right of primo-genitor and Precedency by the Legal imperfection of his Birth and therefore this impediment being removed by the same Law which put it his Birth-right continues intire But whether this Priviledge should be granted to such as are Legitimated by the Prince and not by the subsequent Marriage may be doubted And I incline to think it should not because the special Reason of the former Concession depends upon the Favour and Honour of Marriage and this is likewise clear cap. quoniam Auth. quib mod nat vid. Imolam in cap. Grand de sup negl Praelat And my second Argument is That the Prince cannot by any deed of his prejudge third Parties But here such a Legitimation would prejudge the Children of the intermediate Lawful Marriage QVESTION XX. Whether ought the Order of the Nomination to be Observed in Commissions where the Persons are Ranked otherwayes then can be consistent with the Kings former express Grants An instance of this may be given in
two be Advanced to be Earles he whose Patent is first past the Kings hand will have the Precedency though the other serve in the first Parliament or be present there a day before the other or have his Patent first Registrat for it is the King and not his Clerk that makes Noble but yet this is Debated by La Rocque cap. 66. Lawyers likewise Observe that the former Rule preferring him who has first Served to him who was first Provided or Invested holds good though he who was first Provided or Invested was not in mora and did not delay to take Possession but was hindred by some extrinsick Impediment such as Sicknes And this they say was decided the 27 of April 1594. in Rota Romana and this is observed to be the common Opinion by Gonzales ad regulam 8. Cancel and this they prove by the Analogy of other Feudal Rights which being to be compleated by Possession the Law considers not whether the Party who should have possest was hindred from attaining to Possession but who first attained to Possession QVESTION XXIII Whether does the Dignity of him who bestows the Honour Regulate the Precedency that is bestowed among Equals It is answered That it does all other things being Equal and thus those who have the same Dignity from a King as for instance Those who are made Knights by a King are preferred to those who are made Knights by a Common-wealth And amongst Common-wealths those who are made Noble by the greater Common-wealth are preferred to those of the same Degree made Noble by a lesser Common-wealth Gloss. ad L. 2. de Alb. scribend Menoch Consil. 126. Lauderus de Dignitat Conclus 32. and this holds so farr that the youngest Knight admitted by the one is preferred to the eldest admitted by the other But Knights admitted by a Commissioner are not upon this account to be postpon'd to those made by the King himself since they are in the Construction of Law admitted by the same Dignity qui facit per alium facit per se. It is very observable that the French King prefers the Dukes made by the Emperour not onely to the Dukes made by himself but even to the Ambassadours of Forreign Kings though I think this is allowed onely to these Dukes who are Sovereign Princes By this rule likewise it is that the Clerks of a Superiour Court are preferred to these of an Inferiour since they derive their power from a higher Jurisdiction QVESTION XXIV Whether can a Prince Nobilitat any of his own Subjects in the Territories of another Prince It has been Argued that he cannot because he cannot bestow Honours but where he is a Prince but so it is that he is not a Prince at least hath no power in the Territories of another Prince Which Opinion seems to be founded on L. ult ff de Off. praefect Vrb. and therefore Sigismund the Emperour having designed at Lions in France to Creat the Earl of Savoy Duke of Savoy he was resisted by the Governour of Lions till the French King should be advertised And Charles the fifth having whilst he was Emperour Created some Lords and Knights in France though at the desire of Francis the first the French King their Creation being thereafter Contraverted by their Peers It was found Illegal But yet I incline rather to Noldus's opinion de Nobilitate c. 2. who thinks that a Prince may Exercise any Voluntar Jurisdiction without his own Dominions especially in Relation to his own Subjects L. 1. ff de Officio pro Consul Bartol in L. 1. Col. 9. La Rocque triact de la noblesse c. 76. and if they should attempt against his Life they would be guilty of Treason though the attempt was made in a Forreign Nation Lawyers likewise have allowed to Princes all manner of Jurisdiction even within the Dominion of others And therefore I much admire how these Honours that were bestowed by Charles the fifth could have been thereafter contraverted if the persons to be Dignified were the Emperours own Subjects but I believe they were not QVESTION XXV Whether when the President of any Court or Incorporation is absent may the eldest Member Convocat the Incorporation And who ought to perceâ—d in that Case To the first of these questions it is answered by some Lawyers That the President being absent the eldest Member in Dignity may by his own Authority call the meeting Convocare Collegium as they call it and of this opinion are Hostiensis Panorm Bald. ad cap. 1. de Maior Obed but others are of opinion that the Major part has only right to conveen the rest in that case Innocent ad cap. 2. de operi nov nunc But a third Sect of Lawyers do for agreeing the former opinions assert that in Ecclesiastick meetings the eldest may by his own Authority call the rest but not so in Laick meetings and the reason of this Distinction seems to be because Church-men are bound to give more Obedience to their Seniors and there is less fear of Design amongst them both because they are presumed to be more disinterested and because in their meetings their Posterity is not to gain But without any Distinction I should think that the eldest may always Convocat for there may be hazard in delay if the greater part were requisit for the question still recurrs who should call the greater part nor can there be great hazard in calling for the onely hazard is the packing of a Quorum and this may be prevented by imposing a necessity upon those who meet to advertise the rest To the second question it is answered That this is much to be determined by Custom and Our Courts in Scotland suffer not the eldest to preceed but choose alwayes one to preceed in the absence of their constant President and this seems to be most Reasonable because every Member of a Court is not ordinarly fit to be a President And yet there are some Lawyers who distinguish betwixt such Courts to whom the chief Magistrat has chosen no constant President and in these they say the eldest cannot preceed though they say he ought to preceed in these Courts where the King has choos'd a President for as in these the members cannot choose a constant President so neither can they choose a Vice-president since surrogatum subit naturam surrogati whereas the eldest is a President by the Magistrates tacit Election since he has that Seniority from the King or supream Magistrate which does prefer him to be President and we see that amongst Souldiers the eldest Officer alwayes commands when the superiour Officer is absent QVESTION XXVI Whether may a Peer be Degraded because he hath not an Estate sufficient to entertain a Person of his Quality And by whom may he be Degraded It would seem that a Peer cannot be Degraded though he hath not a suteable Estate because the King may Nobilitate a person that wants an Estate and Nobility being a right derived from
Blood it seems to have no Dependance upon Riches and as the having of Riches gives not Nobility so neither should the want of them take it away Likewise this is very express by the Roman Law Lege humilem Cod. de Incest nupt where it is said humilem abjectam foeminam non eam esse quae licet pauper sit ab ingenuis tamen parentibus nata est And that this hath been very anciently the opinion of the World is clear from that of Euripides apud Stob. serm 86. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But I find that Cook 4. inst folio 355. and the Authour of Ius Imaginis pag. 25. conclude that Poverty is a good cause for the Degrading of a Peer an instance whereof they give in George Nevil Duke of Bedford who was Degraded by Act of Parl. 17. Edward the fourth of which Act this is the tenour And forasmuch as it is openly known that the said George hath not nor by Inheritance may have any livelyhood to support the said Name Estate and Dignity or any name of Estate as oftentimes it is seen that when any Lord is called to high Estate and have not livelyhood convenient to support the same Dignity it induceth great Poverty and Indigence and causeth oftentimes Extortion Embracery and Maintenance to be had to the great trouble of such Countries where such Estate shall happen to be inhabited Wherefore the King by Advice of his Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same Ordaineth Establisheth and Enacteth that from henceforth the same Erection and making of the same Duke and all the names of Dignity to the said George or to John Nevil his Father be from henceforth void and of none effect c. From which Act three things may be well observed First That the said Duke had not any Possessions to support his Dignity yet his Dignity could not be taken away from him without an Act of Parliament Secondly The inconveniencies appear where a great Estate or Dignity is not accompanied with a livelyhood Thirdly This is a good Cause to take away the Dignity by Parliament For reconciling which opinions it seems indeed that though a person who is noble by Birth should fall into poverty yet that poverty can no more Degrade him from his Nobility then it can taint his Blood but though it cannot root out that Noble Character from his Blood and make him no Gentleman yet it seems a good reason why he may be Degraded from being a Peer of the Realm For the being a Peer is no necessar effect of Blood but a mark of the Royal bounty bestowed for the better Government and Advantage of the Kingdom Earles being by their Original Praepositi Comitatus or Commanders of the County and Counties or Shires are so called because they are the Governments of a Count or Earl And therefore when the King and Parliament find that they are not fit to bear this quality they may justly take away that Honour that was given nor can there be any thing so inconvenient as that these should represent the Kingdom in its greatest concerns and burden it with with Taxes who have no interest in the one nor can bear any share in the other And that these Feudal Dignities and markes of Nobility may be taken off by the loss of the Fews is clear by Bartolus in L. inam Cod. de Dignitatibus and that this is the custome of Sicily is clear Afflictus Col. non in 6. not It may likewise seem reasonable that as the King onely can bestow Nobility so that it should be onely proper for him to Degrade And since he may Create any Nobleman though he be poor so he may continue him so notwithstanding of his Poverty specially seing the being a Peer is but to be the Princes Counsellour nor can any judge who are fit to be his Counsellours but himself nor is the Parliament any thing but his great Council But since this Degradation is a kind of Forfeitur it seems that the Parliament onely can be Judges therein since the King does not use to Forfeit by his own Authority And though the former Arguments may prove that a Peer cannot be Degraded for poverty except the King pleases which is certainly true since no Act of Parliament can pass without his Royal consent yet they prove not that the King may Degrade a Nobleman by his own Authority except he may Judge all cases immediately by himself QVESTION XXVII Whether is a Patent never made use of by the Father valid after his death It is answered That though the Patent being granted to such a man therein Designed seems to die with him and that the Father dying with this quality cannot transmit it to his Son yet it is certain that the Patent is valid to his posterity For except where it was Designed to be personal it is conceived in Favours of a man and his Heirs and thus it was judged in the cause of Quesnel Advocat in Rowan 4. May 1623. vid. La Rocque cap. 67. QVESTION XXVIII Whether if the Father use any low or base Trade which Derogates from Nobility will his Children and Descendents loose it thereby In answering to this case We must distinguish betwixt such as derive their Nobility from their Fathers onely and some think that in that case the misbehaviour of the Father does extinguish the Nobility of the Race and that the Descendants are no more Noble except they be restored by an express Gift Or otherwise the Nobility of the Race has descended from a long Series of Predecessours and then the Fathers Deed does not prejudge them since they do not owe their Nobility to him and the Prince having Nobilitat such a man and his Posterity they owe their Nobility to the King and derive it from him equally with the Father which Distinction I find in the Learned Faber Cod. L. 9. T. 28. Def. 1. But it seems that by this last reason Even that Nobility which is begun in the Father cannot be lost by his fault And therefore some Lawyers have been of Opinion that that Nobility which descends by immemorial possession and which flows not from a particular priviledge and Concession can never be taken away by the Fathers baseness or crime Warnaesius tom 1. responsorum de Iure Pontificio Consil. 20. num 7. and thus we find in the Roman Story that Marcus Emilius Scaurus was found not to have lost his Nobility by his Fathers becoming a bearer of Coals Curt. conjectur jur civil lib. 2. cap. 20. and others think that as it is sufficient for acquiring Nobility that the Grand-father and Father have been repute Noble So by the rule of Contraries it is sufficient for extinguishing Nobility that the Father and Grand-father have been repute Ignoble And though the rights of Blood cannot be lost by prescription yet Nobility may be lost as all other priviledges can by not exersing or owning
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
Monteith compearand be Graham his Procutor the said Heugh Earl of Eglington compearand be Iohn Bell his procutor and the said Iohn Earl of Cassils compearand be Iohn Hamilton and Gilbert Ross and the said Andrew Lord Stuart of Ochiltry Iames Lord Balmerinoch Iames Lord Abercorn compearand personally the said Lord Lindsey of the Byres compearand be the said Mr. Robert Learmont his procutor the said Iohn Lord Forbes compearand be Iames Fogo his procutor the said Patrick Lord Glames compearand be Mr. Patrick Sharp younger his procutor the said Patrick Lord Gray compearand be Patrick Whyllie his procutor the said Iohn Lord Seaton compearand be Mr. William Livingston his procutor the said Allan Lord Cathcart compearand be George Angus his procutor the said Iames Lord Carlyl compearand be the said Robert Hamilton his procutor the said Robert Lord Sanchar compearand be Creichton his procutor the said James Lord Hay of Yester compearand be Mr. Iames Burchar his procutor the said Iohn Lord Harres compearand be Corbal Cunningham his procutor the said Iames Lord Torphichen compearand be Mr. Robert Learmont his procutor the said Lord Thirlstain compearand be Thomas Fleyming his procutor the said Alexander Lord Spynie compearand be the said Mr. Robert Learmont his procutor And the hail remanent Lords and Earles particularly abovewritten being oft-times called and not Compearand divers Terms and Dyets assigned to them for this effect the Writs Evidents Documents and Testimonies produced be the saids Persons compearand and every an of them acclaiming the Priority and Precedency before others being divers times and at divers Dyets very diligently and exactly Sighted Tryed Examined and Considered be the saids Lords Commissioners and the saids Lords therewith being as also with the Ranks and Places of such Earles and Lords as were Promoted and Created in His Majesties own time well and throughly Advised The saids Lords Commissioners has Decerned Decreited Appointed and set down and be these presents Decerns Decreits Appoints and sets down the Ranks and Places following to the hail Noblemen of the Kingdom to be Keeped Bruiked and Possessed by them in all Parliaments General Councils and publick Meetings hereafter In the first The saids Lords Commissioners Discerns and Ordains the Duke of Lennox to have the first place the Marques of Hamilton the second the Marques of Huntly the third because be the custom inviolablie observed in all Kingdoms the place of Honor amongst Nobility is first in the persons of Dukes and next Marquesses and then in the persons of Earles and Lords and next unto them the saids Lords Commissioners Discerns and Ordains the Earles abovewritten to have Bruiked and Possessed their Ranks and places according as they are here written Ranked and set down in Order following Viz. Angus Argyl Crawfurd Errol Marishal Sutherland Mar Rothes Morton Monteith Eglington Montrose Cassils Caithnes Glencairn Buchan Murray Orkney Athol Linlithgow Home Pearth Dumfermling and Dumbar And sicklike the saids Lords Commissioners Dicerns and Ordains the Lords particularly abovewritten to have Bruiked and possessed their Ranks and Places according as they are here Written Ranked and set down in Order following Viz. Lindsey Forbes Glames Fleyming Salton Gray Ochiltrie Cathcart Carlyl Sanchar Yester Semple Sinclar Harres Elphingston Maxwel Oliphant Lovat Ogilvy Borthwick Rosse Boyd Torphichen Pasley Newbottle Thirlestain Spynie Roxburgh Lindors Lowdoun Dirleton Kinloss Abercorn Balmerinoch Murray of Tillibairn Colvil Culrosse and Scoon And Decerns and Ordains all Earles and Lords particularly abovewritten to Keep Bruik and Posses their Ranks and Places in all times coming according to the Orders and Ranks abovewritten now set down Appointed and Prescrived to them and to make no Question Trouble nor Plea in this Matter to any appointed to have place and rank in the manner foresaid But prejudice alwayes to such Person or Persons as shall find themselves or their Interests prejudged be their present Ranking to have recourse to the ordinar Remeed of Law be Reduction before the Lords of Council and Session of this present Decreit recovered and of their due Place and Ranks be Production of more Ancient and Authentick Writs nor has been used in the Contrary of this Process Summonding all such persons thereto as shall think themselves wrongously Ranked and placed before them And in the mean time this present Determination to stand in full Force Strength and Effect ay and while the Party Interested and Prejudged obtain Lawfully an Decreit before the saids Lords of Council and Session as said is And Ordains these presents to be Insert and Registrat in the Books of Privy Council and an Authentick Extract thereof to be delivered to the Clerk Register and another Extract to be delivered to the Lyon-herauld to be kept be them for the better knowledge and Information of every mans Ranks and Place when the Occasion of their Ranking shall be Presented Extract de libris Actorum Secreti Consilii Act. 8. D. N. Regis Per me Jacobum Primrose Clericum ejusdem sub meo signo subscriptione manualibus It is fit to know that the Earl of Dowglas was by Act of Parliament Declared to have the first Vote in Parliament and the Carrying of the Crown and leading of the Vanguard But K. Iames did in anno 1582. prevail with that Earl to suffer the Duke of Lennox to carry the Crown for that time and in anno 1632. There is a Charter granted to the said Earl in life-rent and to his Son in Fee cum omnibus privilegiis c. specialiter cum privilegio aciem ducendi Coronam gerendi c. But in anno 1633. the said Earl being Created a Marquess it is Declared by Act of Council that he did quite priviledge of having the the first Vote in Parliament upon his Promotion And yet the Marques of Dowglas still pretends that any such Renunciation could not have prejudged the Family since the Granter of that Renunciation was onely a Life-renter his son having been in Fee I find there are some titles of Nobility in England annexed to places so that whoever is in possession of that place has right to the tittle Thus it was found in the case of the Lord Abergavenny that he in possession of the Castle ought to have the title albeit he be not Heir of Blood Their Reason is because it is a Barony-marchiere and it has been found that Baronies and Castles situate upon the Borders of Scotland and Wales belong alwayes to the Owners the words of the Tenour being per servitium Patriae custodiendae It is alleadged as one of the Reasons in that caise that the Owners of lands holding in capite per Baroniam have Precedency albeit they be not next Heirs The next Degree to the Earles is that of Viscount in Latin Vicecomes as being of old Lieutenant to an Earl Vicecomites olim dicibantur quibus castri Dominus Vices suas committebat seu executionem Iurisdictionis But afterwards Our King gave not the Government of Counties or Shires to Earles
if she survived him because this was not a Dignity of Office but a real Dignity settled in his person and generally in all real Dignities such as those of Dukes Marquesses Earles c. the wives participat the Husbands honour even after his death for it is not the Patent that confers the Honour upon her for else she could not enjoy the same except she were therein mentioned but her right flows from the Common-Law which illustrates the Wife with the Husbands Dignity because Marriage is individua vitae consuetudo And in the Law the Husband and Wife are one person and for the same reason we see likewise that the Wives of Knights-Batchelours and Knights of the Bath enjoy the same Precedency that was due to their Husbands though they enjoyed the same for Life And whereas it may be objected that the Husband having the Honour but for Life it cannot be continued longer then for the time limited or to be transferred to the Wife after the death of her Husband It is answered by the same rule and proportion no wife whatsoever should enjoy the title of her Husbands honour after his deceas but then all the honour and place should surceas for she challenges nothing but from her Husband The Honour for perpetuity to the Heirs concerns onely the Descendents and they are thereby Enobled But to her a state for Life and a state to the Heirs is all one I find also that Sir William Heram having married the daughter and Heir of the Lord Saye and so being in her right a Baron and by reason of that Marriage summoned to the Parliament as a Peer of the Realm having survived his wife albeit he had no Issue by her he notwithstanding enjoyed that title and dignity during his life To the second branch of this question it is answered That the wife of a person forfeited enjoyes the same title and dignity that was due to her before the forfeiture for though it may seem that the dignity of the Family is extinguished and consequently she cannot enjoy it Yet the crime punishes onely the person and corrupts onely the blood quo-ad the Descendents but not quo-ad the Wife And though the honour be extinguished yet being extinguished upon a personal account the punishment ought not to reach further then the crime QVESTION XLII Whether amongst those of the Royal Line does the next to the Royal Stock preceed Or does the Precedency belong to the eldest of that Branch The reason of this doubt is Because as in other Nobility the first who is dignified has still the Precedency as being farthest removed from the Dreggs and Lees of the Vulgar So amongst those who are descended of Kings the last is still preferred as being nearer to the Common-Stock by which all are Enobled And therefore the Uncle it seems should preceed his Nephew by the elder Brother as being a Degree nearer to the Stock as was alleaged by the Cardinal of Bourbon Uncle to Henry the fourth But yet it was justly decided for Henry the fourth because though the younger Branch be still preferred yet amongst these of the same Branch the eldest is still preferable for by the right of Representation he Represented his Father which Father would have been preferred and here again the right of Birth-right still returns And this holds not only in France as Tillet observes but with us in Britain and generally in all Law Exod. 6. and 1. Cron. 4. vid. Dec. Consil. 445. albeit of old in Scotland the Uncles did oftentimes usurp upon this account L'oiseau chap 7. And to this day the eldest Cadets in private Families do still take place with us from the last descended beyond the Brothers of the Family and those old Cadets take place of the Nephews which is an Errour QVESTION XLIII Whether and when is the right or left Hand the chief mark of Precedency And whether is the place opposite to the seat of the chief Person who sits betwixt the two preferable to either right or left Hand To this it is answered That amongst both the Iews Greeks and Romans where three were either sitting or walking the midle-place was thought the chief place but where two were without a third the right Hand was concluded the more Noble amongst the Iews and thus the Scripture tells us That such as are to be saved shal sit at the right hand of GOD And yet in Iacobs Blessing Ephraim and Manasseh the left hand was preferred Genes 48. vid. Pansirol lib. 1. pag. 501. But amongst the Romans it was doubted which of the two was preferable Demsterus Antique Roman pag. 866. And yet it is certain that amongst the Turks the left side is acounted the more Noble because he commands his neighbours Sword And though these be the chief Seats yet he who is set opposite to him who sits in the midle is thereby preferred to him who either sits upon the right or left hand since in effect he is made the Correspondent of the chief Person as Golstadus defends by many instances pag. 433. QVESTION XLIV Whether in Improbations raised to secure Precedency can Certifications be granted aswell against Patents of Honour as against other Writes This question having occurred in a Debate Ianuary 1672. betwixt the Earl of Sutherland and the Earl of Errol It was urged that in Declaratours of Precedency and Improbations raised for securing thereof no Certification could be granted because 1 o. such Certifications were onely granted where the Right and Title to be improven was constitute by Write But so it is that the Dignity and Honour of Dukes Marquesses Earles c. was not onely established by Patents or Infeftments but might be acquired by bringing them in to Parliament in their Robes and such other formes of Creation as have been practised both amongst us and other Nations against which no Certification could operat 2 o. Certifications are onely allowed where the Pursuer of the Improbation has a direct title to that whereof the Right is to be improven exclusive of all others But so it is that the Earl of Sutherland nor no other has an express and explicite Right to be the first Earl of Scotland and any right he has to the Precedency arises onely consequentially 3 o. Improbations being onely a remedy introduced by our Law and the native designe thereof being to secure real rights and private Estates it ought to be extended to no such case as that of Dignities and Honours to which it has never heen applyed during these many years that Improbations have been used here and to which certainly our Predecessours would have applyed them if the nature of the action would have allowed it To which it was answered That Certifications being introduced amongst us to secure the Pursuer against any Evidents in the Defenders hand which might prejudge the Pursuers right they ought to be extended to Honours established by Patent or Infeftment these being rights that are transmitted by Write and this being