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
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
but appointed Sheriffs who depended upon their own Nomination and were therefore called Vicecomites In Bretagn Barons take place from Viscounts But there are no Viscounts in Germany Bourgrave being in their place Speculat tit de Vicecometatu la Roque de nobilit C. 83. We had no Viscounts in Scotland before 1606. for by the aforesaid Decreet the Lord is declared next to the Earl Barons according to Spelman sunt Clientes Feodales Vassalli Capitales qui Pagos Vrbes Castra vel eximiam ruris portionem cum Iurisdictione acceperunt a Rege And the word according to him comes from Vir or Vi i. e. robur belli But it is more probable that it comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 gravis they being chosen wise and Discreet men With Us all are called Barons who hold their lands of the King in libera Baronia and who have power of pit and gallows and of old they were all heritable Members of Parliament as all Barons in England are as is clear by Act 52. Parl. 3. Ia. 1. whereby all Barons are appointed to come to Parliament and though this Act may seem to be abrogated by the 101. Act Parliament 7. Iames the first whereby the Barons of each Shire are allowed to choose two wise men to Represent them which is the custom at this day Yet it is observable that though by that Act they may for their conveniency choose two yet they are by no express Law discharged to come in greater numbers And by the 78. Act Par. 6. Ia. 4. no Baron that had below the Rent of 1OO Merks was to be compelled to come to Parliament unless the King particularly wrote for him And when Taxations were laid on by the Council I find by the old Records as particularly in October 1562. that Noblemen and Burgesses are called but no Barons the Barons and Noblemen having been then represented promiscuously and that long after the Act of Parliament allowing them to send Commissioners And this is the Reason why Our old Barons who are not Lords and hold onely their lands in free Barony have supporters in their Atchievement and that with some reluctancy they yeeld the Precedency to Knights-Baronets they being Originally heritable Counsellours to the King as Members of Parliament and not Debarred The several Degrees of Nobility before Treated of did alwayes bear their respective Coronets as in England excepting the Lords who had no Coronet till the year 1665. There being a Warrand under His Majesties hand in Iune 1665. Allowing to the Barons or Lords of Parliament in Scotland a certain Crimson Velvet Cape with a Golden Circle decored with six Pearles on the Top equally distant one from another which is the same with the Barons Coronet in England But the figure of this Coronet on the margine of the principal Signator is done far contrare to the words in the Body The same having points like to that of the Earles which has certalnly been a mistake and ignorance in the Painter and ought to be adverted to be the Lyon and Heraulds This Warrand is Registrat in the books of Council and in the Lyon Books I have here set down for the Readers further Satisfaction a List of all the Nobility at present in this Nation their Sir-names and Principal Titles And Titles of their Eldest Sons With such Officers as have Precedency be Vertue of their Offices The Duke of Albany onely Brother to His most Sacred Majesty Lord Chancellour Lord Thesaurer Lord President of the Privy Council Lord Privy-seal Lord Secretary above all of his degree â‚ Nota. Stuart Duke of Lennox was the premier Duke but this Family is lately extinct DUKES Hamilton Duke of Hamilton His Eldest Son Earl of Arran Scot Duke of Buccleuch His Eldest Son Earl of Dalkeith Maitland Duke of Lauderdale His Eldest Son Earl of Lauderdail Lenos Duke of Lennox His Eldest Son Earl of Darnly MARQUESSES Gordon Marquess of Huntly His Eldest Son Lord Gordon Dowglas Marquess of Dowglas His Eldest Son Lord Angus Graham Marquess of Montrose His Eldest Son Lord Graham Murray Marquess of Athol His Eldest Son Lord Murray EARLES Campbel Earl of Argyl His Eldest Son Lord Lorn Lindsay Earl of Crawsurd His Eldest Son Lord Lindsay Hay Earl of Errol His Eldest Son Lord Hay Keith Earl Marischal His Eldest Son Lord Keith Gordon Earl of Sutherland His Eldest Son Lord Strathnaver Areskin Earl of Marr His Eldest Son Lord Areskin Graham Earl of Airth and Monteith His Eldest Son Lord Kilpont and Kilbryd Lesly Earl of Rothes His Eldest Son Lord Lesly Dowglas Earl of Morton His Eldest Son Lord Aberdour Areskin Earl of Buchan His Eldest Son Lord Auchterhouse Cuningham Earl of Glencairn His Eldest Son Lord Kilmawrs Montgomery Earl of Eglington His Eldest Son Lord Montgomery Kennedy Earl of Cassils His Eldest Son Lord Kennedy Stuart Earl of Murray His Eldest Son Lord Down Maxwel Earl of Nithisdale His Eldest Son Lord Maxwell Seton Earl of Winton His Eldest Son Lord Seton Livingston Earl of Linlithgow His Eldest Son Lord Livingston Home Earl of Home His Eldest Son Lord Coldingham Drummond Earl of Pearth His Eldest Son Lord Drummond Seton Earl of Dumfermling His Eldest Son Lord Fyvie Fleeming Earl of Wigton His Eldest Son Lord Fleeming Lyon Earl of Strathmore and Kinghorn His Eldest Son Lord Glames Hamilton Earl of Abercorn His Eldest Son Lord Paslie Ker Earl of Roxburgh His Eldest Son Lord Ker Areskin Earl of Kelly His Eldest Son Lord Pettinweem Hamilton Earl of Haddington His Eldest Son Lord Binning Stuart Earl of Galloway His Eldest Son Lord Garlies Mackenzie Earl of Seaforth His Eldest Son Lord Mackinzie Ker Earl of Lothian His Eldest Son Lord Newbottle Hay Earl of Kinnoul His Eldest Son Lord Duplin Campbel Earl of Lowdown His Eldest Son Lord Mauchlaâ— Crichton Earl of Dumfries His Eldest Son Lord Crichton Dowglas Earl of Queensberry His Eldest Son Lord Drumlanerick Alexander Earl of Striveling His Eldest Son Lord Alexander Bruce Earl of Elgin His Eldest Son Lord Kinlosse Carnagie Earl of Southesk His Eldest Son Lord Carnagie Stuart Earl of Traquair His Eldest Son Lord Linton Ker Earl of Ancram His Eldest Son Lord Nisbets Weems Earl of Weems His Eldest Son Lord Elcho Ramsay Earl of Dalhoussie His Eldest Son Lord Ramsay Ogilvy Earl of Airly His Eldest Son Lord Ogilvy Ogilvy Earl of Findlator His Eldest Son Lord Deskfoord Dalziel Earl of Cranwath His Eldest Son Lord Dalziel Livingston Earl of Callender His Eldest Son Lord Almond Lesly Earl of Leven His Eldest Son Lord Balgonie Ruthven Earl of Forth His Eldest Son Lord Ettrick Iohnston Earl of Anandale His Eldest Son Lord Iohnston Maule Earl of Panmure His Eldest Son Lord Maule Murray Earl of Dysert His Eldest Son Lord Huntingtour Hay Earl of Tweeddale His Eldest Son Lord Yester Carnagie Earl of Northesk His Eldest Son Lord Rosehill Bruce Earl of Kincardin His Eldest Son Lord Bruce Lindsay Earl of Balcarras His Eldest Son Lord Balneâ—l Dowglas
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
it time out of mind It is fit to know that in this Isle not onely that Nobility which comes by Succession and Immemorial possession but even that which comes by priviledge and Concession can be Forfeited by the Fathers Crime and in this We differ from Warnesius opinion and therefore the Children must be rehabilitat and restored by the King But the Fathers unworthiness in exercising mean shifts and Trades does not amongst us Derogate from the Childrens Nobility as in other Nations Nor do I see any reason for the distinction used by Warnesius for all Nobility must be acknowledged to have flowed originally from the King by Concession and even that Nobility which comes by priviledge does descend upon the Children by the Kings grant to them aswell as the Father and so cannot be prejudged by any personal deed of his except in the case of a Crime against the King for that is still implyed in the Concession and it is not just that the Children of Traitours should enjoy those titles and that Nobility which might be useful to them in revenging their unjust quarrels QVESTION XXIX One having resigned a Dignity or Imployment and returning thereafter thereto whether does he who has so resigned return to his former Precedency To this it is answered That he does not but having embraced again the employment he had formerly resigned he is onely to have Precedency according to his last Reinstalment Langleus 7. Semest 8. where it is laid down as a rule that Precedency once lost is never recovered and an instance of this is given cap. ex Insinuatione 26. in a Chanon who having once renunced his Benefice and having thereafter embraced it is onely to be preferred according to the date of his last title From this last rule viz. that a Precedency once lost cannot be recovered Gothofred de Preced cap. 6. num 43. observes these Exceptions First If the person who renounced his Dignity was preferred to a Higher or more Noble in which case if he return to his first Imployment he looses not the Precedency due to it for a greater Dignity never prejudges the lesser L. 3. C. de Dignitatibus Rupanus lib. 7. cap. 27. and contains in it the lesser per eminentiam as Lawyers speak superveniens major Dignitas auget non minuit statum except the two Offices be incompatible in themselves for then the lesser is extinguisht by the greater L. si debitoris ff de fidejussor The second exception is If the person in whose favours the Resignation was made will not accept and upon his refusal the Resigner does presently return to his Precedency L. si forte ff de Offic. Presid And the reason is because the Resignation being there made in favours of another has that tacit Condition in it that if the other in whose favours it was made accept not the Resignation shall be null and this is the nature of all Resignations in favorem with us as to all Fews as Craig well observes The third Exception is If he who made the Resignation do presently repent for in that case likewise he is in the condition as if he Resigned not And thus the Law takes not advantage of Our sudden and undigested thoughts Et uxor quae mox rediit divertisse non videtur The fourth Exception given by him is If he who Resigned reserved to himself his former Precedency for which though there be several Roman decisions yet it is very debateable how far a man can by Protestation or Paction distinguish and reserve a Precedency when he has Resigned or Disponed the Imployment to which it was annexed For since the Precedency is onely due upon the account of the Imployment it would seem that he who has Resigned the Imployment cannot retain the Precedency and to do so were to retain accidens sine subjecto QVESTION XXX Whether may a Nobleman resign his Honours in favours of a third Party And if the Kings Confirmation thereupon will exclude the nearest Agnats who would else have succeeded by their right of Blood This question seems of great Importance and intricacy For it may seem that he may transfer his title in prejudice of his nearest Heirs because the title is onely a Fee and all Fews may be alienated nor is this a meer right of Blood but a priviledge bestowed by the King and consequently may be transferred by his consent Nor can their be any thing more for the interest either of the Kingdom or of Noble Families than that when the nearest Heir is unfit to succeed wanting either Means or Wit suitable to such a Dignity it should be in the power of the King and the Noble person himself to choose a fit successor Like as this was so decided in the case of Robert King of Sicily Cl. pastoral de re Iud. And many Lawyers have been of opinion that even elder Brothers might resign their right of Succession and primo-genitur in favours of the third Brother passing by the second vid. c. 1. § praeterea tit quib mod feud amit Bald. Consil. 389. But others conclude That the nearest by Blood are not prejudged by such Resignations Because this is a right flowing from the favour of Nature and Law Naturae Legis donum quod non potest auferri L. si arrogater ff § sed an ff de Adopt nor is Dignity exposable to sale or in Commerce L. Iulianus ff si quis omiss Whereas if such Resignations or transmissions were sustainable all titles might be sold and the meanest Fellow if Rich might by the favour of a Minister and the folly of the present Possessor exclude the Noblest Race And by the Feudal Law though a Vassal may denude himself yet he cannot transmit his Fee in favours of remoter Heirs to the prejudice of the nearer cap. Titius tit si de feud fuer Contravers this case is not decided with us but the King upon a Resignation from the late Earl of Caithnes in favours of Glenurchy confirmed the title in his favours but by a new Patent and without the former Precedency and discharged by a letter the next Heir to use the title till the matter should be decided by the Judge competent But I find that in England Ed. 2. granted to Edmond de Lincourt upon his Petition a Patent under the great Seal impowering him to assign his Sirname Arms and Barony But the Lord Hoe having assigned his Name Arms and Dignity without the Kings licence the deed was adjudged void in Parliament From which the Authour of Ius imaginis pag. 27. concludes first That the title of Nobility may be assigned Secondly That it cannot be assigned without the Kings licence And yet I find that in the Viscount Purbecks case it was lately found by the parliament of England that a Nobleman could not levey a fine upon his Honour in prejudice of his Heir that is to say That a Nobleman could not do any deed to the prejudice of his Honour by alienating
OBSERVATIONS Upon the LAWS and CUSTOMS OF NATIONS AS TO PRECEDENCY BY Sir GEORGE MACKENZIE of Rosehaugh His Majesty's Advocat in the Kingdom of SCOTLAND PETRON Hos gloria tulit Honores EDINBVRGH Printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno DOMINI M. DC LXXX To the King May it please Your Sacred Majesty THis Book having for its subject Precedency should have for its Patron that KING from whom our Precedency flows as Rays do from the Sun And beside the nobleness of the Questions here discuss'd wherein Crowned-heads are oft-times the Clients and Honour the Prize These Discourses have the great Charms of newness and variety which do singly so delight this Age without any other advantage I know Sir that Dedications have degenerated into Panegyricks but why should I say any thing of You of whom the most of Your Subjects believe better things than the most eloquent of Your Advocats can express It being amongst the other wonders of Your life that You are the best lov'd though not the best obey'd King in Christendom the one being the effect of our Conviction and the other of Your admired Clemency And yet I might be allowed to say as much of Your Majesties merit as some others of Your Subjects having in those many occasions I had of attending You upon our publick Concerns been oftentimes both pleas'd and asham'd to find You understand my Trade that great Art of Reasoning far better than my self discovering to me the weakness of some of my Reasons and improving others But what I admir'd more was for I admire Iustice more than Wit to find Your Majesty alwayes more concern'd for Your Peoples Security than for Your own Prerogative So that if any Kingdom be happier than we it is because they understand better their own Interest and not because they have a better King Leaving then Sir this beaten path I hope all wise and just men may expect that none who owe You and Your Predecessors the Interest they have in Your Kingdoms and Parliaments because of the Titles You have bestowed upon them will be so ungrate and imprudent as to oppose You to please a Re-publican Party who would turn them out of all that Interest they have now in the Government and punish them most remarkably by levelling them with the Populace which some adore There is not a Nobleman in these Nations who has not been raised by the Royal Bounty all Preferments of the Army or long Robe being the reflex of Your Favour upon their merit and without which their greatest Parts had been at best but excellent Colours lodg'd in the dark And therefore when they get Precedency Preferments Matches or Respect for being Noblemen they ought to consider to whom they owe all this and to remember how little they signified when a Common-wealth prevailed And if any of their Creatures us'd them as some have done the Monarchy we should hear that Eloquence which is now us'd to decry the Government and Your Ministers employed in railing against the ingratitude of those their Creatures Nor is it to be feared that the Nobility and Gentry who value themselves so much upon the just descent of their Blood will bear patiently that the Royal Line should be cut or the Succession diverted from its just and royal Channel since Your descent Great Sir has the advantage over not only all Subjects but likewise over all Monarchs that we know when their Predecessors rose from among the Vulgar whereas the first thing History discovers of Yours is that they were Kings God having wrapt up Your Origin in this wonderful mysteriousness as it were to teach Your Subjects that You hold Your Imperial Crown of Him alone and immediatly and in shewing them how to reverence You has oblieged You to depend upon His Divine Majesty the only and immediat Author as well as Support of Your Power and Greatness and who has heap'd upon You so great and so remarkable mercies as may in letting Your enemies see his just indignation against them let you also see what sincere and exemplary Piety He as Your kind and omnipotent Master expects from You. I know Sir that You will allow me to own that I hate Slavery and love Property as well as any of our high pretenders But I think our Freedom and Property securer under Your Majesty whose Right cannot be shaken without the ruine of ours it being Your great interest to maintain that Law which makes so many thousands obey You in spight of their ambition and avarice And I still see that the true Proprietar is the kindest Master whereas on the other hand it is certain that they who oppose most the Government are those who did themselves cruelly oppress us under the late Vsurpers or their impenitent Children Those who being picqu'd at want or loss of Preferment are acted by revenge and malice or these who are so easily fool'd as to believe those who are such and who inveigh against Your just Power that they themselves may thereby become arbitrary many of whom are themselves greater grievances than any they exclaim against and greater judgements than any they threaten So that all we can expect is to empty our Veins and Purses for the liberty of being sold or trampled upon as formerly by such as have neither so great interest in us nor affection for us whilst You Sir generously pity what You may chastise and suffer our extravagancies to grow up to be their own punishment None of us can say that we or our predecessors have for six hundred years felt the tyrannie of any of our Kings nor can any of us deny that all our Miseries and Civil Wars have sprung from the ambition and factiousness of Subjects who design'd indeed to govern them and us which should in reason make us rather jealous of our own factiousness than of our Monarchie And therefore Sir That God may alwayes teach Your Subjects to be just to Your Merit and to remember the last Age and may make Your Ministers careful to maintain but not to stretch Your Prerogative shall be the constant and ardent Prayer of May it please Your Sacred Majesty Your Majesties most Faithfull most Humble and most Loyal Subject and Servant GEORGE MACKENZIE THE CONTENTS CHAP. I. THE Precedency of Kings and Common-wealths CHAP. II. Of the Precedency due to the Kings of Scotland CHAP. III. That the Crown of Scotland was not subject to England CHAP. IV. The debates betwixt the Kings of Pole Sweden Denmark c. and other Princes CHAP. V. The Precedencies amongst Common-wealths CHAP. VI. Of the Precedency of the Electors and the Princes of the Empyre CHAP. VII Of the Precedency of Church-men CHAP. VIII General Observations concerning the Precedency of Subjects CHAP. IX The Precedency due to Women Fourty four considerable Questions concerning Precedency Resolved Viz. Question 1. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be considered or what
their Monuments or Records And it is clear that we had Charters for these Lands we held in England and that England had Charters at the same time for the Lands they held in France And it is very observeable that in the Reign of King Edward the 1. that King stiles himself Rex superior Dominus Regni Scotiae during his violent Usurpation over Scotland whereas never any King of England did so formerly And yet if they had had any such pretensions they had assumed the same Titles but this imaginary Title began and ended with the Force which only maintained it 3. The English cannot condescend upon any Reason which might have prevailed with the Scots to have become Vassals to England nor any particular time when they first became Vassalls and all they can alleadge is That upon some impressions of Force some of our own Kings being prisoners or some of our people being opprest they did elicite from them acknowledgements of a Vassalage formerly stated Whereas Force renders all acknowledgements null and that these acknowledgements were null upon many other Accounts and that the Kings of England have been forced to grant the like to other Princes shall be proved clearly in answer to the Instances which the English adduce 4. Scotland has been habite and repute and acknowledged to be a free Monarchie and their Kings Independent and Supreme and that not only by all Forreign Princes the best Judges in this Case who have received and preferred their Ambassadours as the Ambassadours of free Princes but even in General Councils the King of Scotland has been preferred to the Kings of Castile Hungary Pole Navarr Cyprus Bohemia Denmark and thus they were ranked by Pope Iulius the II. anno 1504. vid. Besold sinop. doct politicae lib. 20. cap. 10. Which could not have been done if he had been only a Feudatory Prince since all free princes are preferred to all feudatory princes Yea and if Scotland had been Vassals to England for the Crown of Scotland the Kings of England had certainly craved and obtained the precedency from other Kings upon that account since he had been Rex Regum And since France craved to be preferred to Spain because the king of England was his Vassal as Chassanaeus observes part 5. consider 19. so much rather ought the Kings of England to have been preferred because they might have alleadged that there was a Crown holden of them whereas they held only some Feu-Lands of the kings of France 5. Not only Christian Princes and Councils but even Popes have declared Scotland to be a Free Kingdom and Independent from England And thus Pope Honorius allowed to Scotland That is Subjects should not be obliged to answer by way of Appeal to any Court without their own Kingdom salva solummodo authoritate sedis Apostolicae 2. Edward king of England having petitioned Pope Innocent the IV. that the Kings of Scotland might not be Anoynted or Crowned without his Knowledge quod non posset se facere ipso inscio in Regem coronari vel inungi the said Pope did refuse the same presentibus procuratoribus parium in Consilio Lugdunensi satis per hoc determinans Regnum Scotiae Regno Angliae non subesse 3. The King of England having likewise petitioned the same Pope Innocent that he might have Liberty to Collect the Tiths of Scotland since he had Right terrarum omnium suae jurisdictioni subjectarum the same was also refused 4. Pope Boniface the eight does in a Letter to Edward king of England Declare That ad celsitudinem regiam potuit pervenisse qualiter ab antiquis temporibus c. quodque Regnum Scotiae sicut accepimus a progenitoribus tuis Regni Angliae Regibus feudale non extitit nec existit c. The copy of which Letter I have at present and Duchesne writing the History of Great Britain does pag. 661. relate That le mesine Pape renvoya d' autres Lettres au roy d' Anglterre pour soustenir que le royaume de Escosse ne dependoit point d' Anglterre que contre le droit Divin la justice il s' en vindicoit la subjection That is to say The same Pope sent Letters at the same time to the King of England in which he maintained That the Kingdom of Scotland was no way subject to that Kingdom and that his seeking to subject it to him as superiour was contrare to the Law of GOD and Men. 6. By the Feudal Law and Law of Nations a Vassal cannot Mortifie any part of his Feu without the consent of his Superiour because the Superiour by the Mortification looses the Services due to him out of his Feu Church-men being obliged to no reddendo but Praeces Vota And therefore in all Mortifications made by Vassals the Superiours Confirmation is still required and it cannot be imagined but that if Scotland had been a Feu holding of England the Popes their Conclaves and the Monastries themselves would have sought Confirmations from the Kings of England of the Mortifications made by the Kings and Subjects of Scotland there being more Erections of that kind in Scotland than in any Nation of equal Revenue and yet never any such Confirmation was sought or pretended to But on the contrare the Pope still confirms these Erections as made per Reges Scotiae as he does in all other Nations or the Kings of Scotland confirm these Erections if they be made by any of his Vassals and it is observable that the Pope does in these Confirmations designe our King Regem Scotiae and not Scotorum 7. The Historians also of other nations did concurr with those of our Nation in asserting this freedom and thus Arnisaeus the best Lawyer who has writ upon these politick questions does look upon this pretence as a meer fiction lib. 1. cap. 5. Anglus Scotorum regem habebat sibi fiduciarium sive ratione aliquot regionum sive ratione ipsius regni ut nimis audacter asserit Math. Steph. Nam haec vetustate temporis obscuritate authorum sunt incerta And Duchesne pag. 21. speaking of Scotland asserts positively That its Kings does recognosce no Superiour but GOD and is every way a Soveraign Prince notwithstanding of the old pretentions of England Le Roy le possede en toute souverainté sans recognoistre au cun superieur que dieu bien que c ' estoit ancienne praetension des Anglois que le Roy D'escosse est vassal de leur couronne 8. Not only have forreign Princes General Councils and the Lawyers and Historians of other Nations declared Scotland to be a free Kingdom but even the Kings of England have acknowledged this freedom and independency as may appear by these instances 1. The King and Parliament of England have treated with the Ambassadours of Scotland whereas no Superiour can treat with his own Vassal as a forreigner nor can a Vassal send Ambassadors to his Superiour for an Ambassadour must be
hold England in capite of Murmelius a Sarazen King Edgar's being rowed over the Dee by Kenneth king of Scotland is taken off by the former Answer though it were true as it is not nor can it be made appear by a Chronological Computation if the Enquiry were worth our pains The great Instance founded upon the Homage made by the Baliol is as weak since it is known that King Robert the Bruce refused to do Homage to King Edward choosing rather to want a Crown then to be a Vassal for it But Iohn Baliol the other Competitor preferring his Ambition to his Native Country was therefore justly disowned by the Nobility who as Duchesne a Stranger to us observes sent Ambassadours to King Edward to show him that they did Revoke and Disown the Homage made by the Baliol and asserted their primitive Liberty And so hateful an Act was this esteemed in him that he losed the Crown by it whereas had this pretence of England been founded upon any Justice it could never have been so severly either opposed or punished But though Baliol had been a lawful King as he was not King Robert the Bruce's Title being preferable in Law yet could not the Baliol have subjected the Kingdom in Vassalage to England since by the Feudal Law a Superiour cannot superinduce or interpose another Superiour nec sine Vassalli consensu alienare jus suum directum c. 1. § ex eodem descendit de Leg. Lotharii And though some debate that by such Alienations of the Superiority the Superiour forfeits his Right yet all agree that the Alienation is null nulla irrita D. D. in cap. imperialem § praeterea de prohibit alien per Fredric Curt. p. 16. num 3. latissime Rosenth cap. 9. conclus 62. Whereas it is pretended That the Parliament of Scotland consented It is Answered That any Parliamentary Consent is altogether denyed For though we have exact Records of all our Parliaments yet there is not so much as Mention made amongst all our Statutes or Books of any Parliament held by Iohn Baliol. And albeit Prin has published all the Records which the English have upon this Subject yet he dares not so much as assert much less produce the Copy of any such Act of Parliament And certainly if there had been such an Act of Parliament not only the Records of that Parliament but that particular Act had been carefully preserved and published and that this Parliament and Statute is a meer Fiction appears not only by our own but Forreigne Historians And it is not imaginable that the greater part of the Nobility and Kingdom having immediatly disowned the Baliol for acknowledging this Subjection that they would themselves have ratified it in a free Parliament But though this were true as it is not yet there is not any Kingdom so Loyal Happy or Invincible but some few Cowards or Rogues may be found in it who may assume the name of a Parliament and disown the true Interest of the Kingdom without any Warrand from the People for that effect And I would very willingly know if England remains still Vassal to the Pope because a Monk prevailed with King Iohn to hold his Crown of him or if Portugal should not be acknowledged a free Crown because Spain did once elicite from them a National Consent by Force of Arms Or if these three or four pretended English Parliaments who acknowledged Oliver Cromwel the Usurper did settle a Legal Right upon him by their Concourse Nor did Prescription Supply here the Original illegality of that Consent for the Scots did immediatly reclame and did within much fewer years than Prescription requires restore themselves to their Liberty under the Conduct of that Glorious Prince King Robert the Bruce for whom GOD did so Miraculous things as did Convince the World how much the LORD of Hosts detasted the Bribry and Cruelty of King Edward the first Et ita res facile redeunt ad suam naturam quae mox rediit divertisse non videtur But to show how great Aversion even that Generation had for any such Submission to the English Monarchy I have set down the Copy of a Letter yet extant under all the Seals of our Nobility directed to Pope Iohn in anno 1320. Wherein they Declare that if their King should offer to submit to England they would disown him and chuse another Not that the power of Electing Kings was ever thought to Reside in our Nobility But because it was represented to them as the Opinion of all Lawyers that a King could not alienat his Kingdom or submit himself by his sole Consent to a Forreigne Prince Since by that Alienation and Submission he does Forfeit his Right to the Crown As to which Letter likewise I think fit to observe to prevent any Mistake as to the Calculation of the number of our Kings that the Writers thereof have as is usual with us numbred amongst our Kings such of the Royal Family as were for the time Regents or Viceroys The Letter follows SAnctissimo Patri in CHRISTO ac Domino Domino Ioanni Divina Providentia Sacrosanctae Romanae Vniversalis Ecclesiae summo Pontifici Filii sui humiles devoti Duncanus Comes de Fyfe Thomas Ranulphi Comes Moraviae Dominus Manniae Vallis Anandiae Patricius de Dumbar Comes Marchiae Malisius Comes de Strathern Malcolmus Comes de Levenox Willielmus Comes de Ross Magnus Comes Cathaniae Orcadiae Willielmus Comes Sutherlandiae Walterus Senescallus Scotiae Willielmus de Soules Buttelarius Scotiae Iacobus dominus de Dowglas Rogerus de Moubray David dominus de Brechine David de Grahame Ingelramus de Vmsravile Ioannes de Meneteith Custos Comitatus de Meneteith Alexander Frazer Gilbertus de Haia Constabularius Scotiae Robertus de Keith Mariscallus Scotiae Henricus de Sanctoclaro Ioannes de Grahame David de Lindesey Willielmus Olifant Patricius de Grahame Ioannes de Fenton Willielmus de Abernethie David de Weyms Willielmus de Monte fixo Fergusius de Ardrosan Eustachius de Maxwell Willielmus de Ramsay Willielmus de Monte alto Alanus de Moravia Douenaldus Campbell Ioannes Camburn Reginaldus le Chen Alexander de Seton Andreas de Lescelyne Alexander de Straton caeterique Barones Libere-tenentes ac tota Communitas Regni Scotiae omnimodam Reverentiam filiolem cum devotis pedum osculis beatorum Scimus sanctissime Pater Domine ex antiquorum Gestis Libris colligimus quod inter caeteras Nationes egregias nostra sciz Scotorum Natio multis Praeconiis fuerit insignita Quae de majori Scythia per mare Tirenum Columnas Herculis transiens in Hispania inter ferocissimos per multa temporum Curricula residens a nullis quantumcunque Barbaricis poterat alicubi subjugari Indeque veniens post mille ducentos annos a transitu populi Israelitici sibi sedes in Occidente quas nunc obtinent expulsis Britonibus Pictis omnino deletis
petitionem Willielmi Regis Scotiae he grants a Liberty to the Monks of Aberbrothick to Transport their Goods through England free from Custome And Matth. Par. in many Treatises related by him gives them that Title And Pope Innocent the third in an express Rescript in the body of the Canon Law cap. 4. decret de immunit Eccles. writes Innocentius III. Illustri Regi Scotiae which behoved to be to King William who did reign in that Popes time Nor is this Argument from the Designation concluding since it is not convertible For even Feudatory Kings did and do assume their Designation from the Kingdom they hold as the Kings of Naples Sicily c. Which evinces that it follows not necessarly that the Kings of these Kingdoms are Feudatory Kings because they were designed Reges Scotorum and not Scotiae And in many places of his History Matth. Paris calls the Kings of England Reges Anglorum as in the whole Lives of King Iohn Henry the third It appears also by the former Transaction betwixt Edward the first and the Governours of Scotland that Margaret is even by the King of England constantly Designed Regina ac Domina Scotiae And I observe that in the Contract of Marriage betwixt Henry the VII for his Daughter Queen Margaret and Iames the IV. that sometimes the King of Scotland is called Rex Scotorum and sometimes Rex Scotiae in the same paper and the Commission granted by the King of Scotland for compleating that Marriage is called Commissio regis Scotiae pro matrimonio in all which Contract the King of Scotland is called Charissimus noster frater a Title never granted to a Feudatory King by his Superiour and the people of Scotland are there called Subditi Regis Scotiae whereas if the King of Scotland had been only a Feudatory Prince we had been Subjects to the King of England and not to the King of Scotland And there needs no other Argument against Heylen to prove that the Kings of Scotland were oft-times called reges Scotiae than the instance brought by himself of the Charter granted by King Edward the first to Peter Dodge wherein Baliol is confessed by himself to be called Roy de Escosse King of Scotland And this proves that the said Heylen layes down Grounds which are not only false but inconsistent But secondly though this were true yet it proves nothing seing the Goths and Picts were a free people and yet their Kings were called Reges Pictorum Gothorum which Phrase was ordinary amongst Conquering Nations such as the Scots were whose Princes having at first no fixed Kingdom did whilst their people were spreading themselves in Collonies rather assume a Title from the people than from their Country And seing Men are Vassals and not Land it will follow according to the terms used by Feudalists that seing our Kings were reges Scotorum that therefore the men were not Vassals and so they hold not their Land of the Crown of England nor were ejus subvassalli aut Valvassores The Argument urged from many Decisions in England finding that we were punishable as Traitors in England and that we were lookt upon as Subjects and not as Aliens by their Judges deserves no other Answer then that since their Kings by their power could not make us Vassals neither could their Parliaments or Judges treat us as such And if their Gown-men could have made us such they needed not have imployed Arms to have shed so much Blood in the quarrel Nor can such Domestick Testimonies prove in a case of so great importance And yet even the English Proceedings against those of our Nation shows that their own Judicatories and Lawyers consider us not as Vassals but as the Subjects of a free and independent Kingdom And amongst many other Instances I shall only remember that of Queen Mary against whom that Nation proceeded not as a Vassal but as a person who had made her self lyable to their Jurisdiction ratione loci delicti Which is very clear by Zouch de judicio inter gentes part 2. sect 6. whose very words I have here set down to prove not only this but that the Kings of Scotland were absoluti and equal to and independent from those of England being both pares absoluti principes His words are Erant boni rerum Estimatores qui asperius cum illa actum affirmabant eo quod fuerit Princips libera absoluta in quam solius Dei sit Imperium quod in majestatem peccare non posset cui subdita non fuerit quod par in parem non habeat potestatem unde judicium Imperatoris in Robertum Siciliae regem irritum pronounciatum est quia Imperio ejus non esset subditus Alii aliter censebant illam scilicet subditam esse etsi non originariam tamen temporariam Quia duo absoluti principes quoad authoritatem in uno Regno esse non possunt parem in parem habere potestatem quoties paris judicio se submiserit vel expresse verbis vel tacite contrahendo vel delinquendo intra paris scilicet jurisdictionem Papam sententiam Imperatoris in Robertum Siculùm rescidisse quod factum in territorio Imperiali non fuerit sed Papali Denique nullum magnum extare exemplum quod non aliquid ex iniquo habeat And in the Process against the Bishop of Ross as it is related both by the Forreign Lawyers and by Cambden it clearly appears that he was proceeded against not as a Subject of England but as a meer stranger who not being subject ratione originis became subject ratione delicti as they alleadged And the Learned Author of the late jus maritimum pag. 451. having spoken of the Jurisdiction of England over Ireland has these words But in Scotland it is otherwayes for that is a Kingdom absolute and not like Ireland which is a Crown annexed by Conquest but the other is by Union And though they be United under one Prince ad fidem yet their Laws are distinct so as they had never been United and therefore the Execution of the judgements in each other must be done upon Request and that according to the Law of Nations Nor need I answer the Argument brought from the procedure against the Heroick Wallace and others for these instances show rather an excessive resentment upon present Hostilities then the Justice of those who against the Law of Nations proceeded to murther such as were indeed prisoners of War fighting for their own Native King and Country And even the English of that age by entring into Truces Ransoming of Prisoners and doing all other things which are only allowable in a just War may convince all Mankind that in this and the like Instances they succumb'd to the bitterness of their present Passion I must here also crave Leave to assert That though Vassals are not to be treated as Aliens yet we find very frequently in History that whole Nations have been Naturalized and have
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
c. By Act of Parliament likewayes 14. May 1661. The Lord President of the Session is Declared to have Precedency from the Register Advocat and Thesaurer-deput And the Register and Advocat are Ordained by the same Act to have Precedency from the Thesaurer-deput But the Thesaurer-deput pretending that he is in effect Thesaurer in the Thesaurers absence and not the Thesaurer-deput and that the foresaid Act of Parliament was in absence he now pretends Precedency from both the Register and Advocat To the end the several Offices may be the better understood It is fit to know that the Chancellor is in effect the first Officer in the Nation and is by his Office and by a particular Statute President in all Courts Act 1. Parliament 1. Charles the second which Act of Parliament was made to declare that he was Presedent of the Exchequer as well as of other Courts this having been pretended to by the Thesaurer He hath his title not from the power of Cancelling as the old Gloss sayes That Cancellarius est qui habet Officium scripta responsaque Principis inspicere male scripta Cancellare For it is not imaginable that he would take his title from what he destroys and not from what he does But from the Cancelli and Barres within which the Judges did sit inclosed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is clear by Cassiodor lib. 11. Epist. 1. Those Cancellarii of old were in effect the Clerks and the Chancellour is so called now Because he signs all the publick Papers and Appends the Seal Ideo quod ad eum universae publicae referrentur conscriptiones ipseque eas annulo Regis sive Sigillo firmaret Simaque lib. 1. calls him Questor Legum Conditor Regalis Consilii Particeps Iustitiae Arbiter Which names I conceive are given to him because Novel 114. Divinae jussiones debent habere subscriptionem gloriosissimi Questoris and many of the Novels are signed Questor Legum I find that in the Laws of King Malcolm Keanmore the Chancellour is placed before all the Officers and sometimes many of the considerable Earles are placed betwixt him and the rest of the Officers Thus King Alexander grantes a Charter Testibus Willielmo de Bosco Cancellario meo Malcolmo Comite de Fyffe Alano Senescall◠Scotiae c. Some think that there is a Difference betwixt Cancellario meo whom they make Director of the Chancery and Cancellario Regni whom they make High Chancellour And others make a Difference betwixt Cancellarium Regni Cancellarium Regis as Spotswood in his History observes But I find that the High Chancellour is called Cancellarius meus as in the foresaid charter and sometimes Cancellarius simply and sometimes Cancellarius Noster and sometimes Regni and sometimes Cancellarius Scotiae And the same Willielmus de Bosco is in the Chartularies of Aberbrothick and Calco or Kelso named under all these Designations I find the Director of the Chancery was onely a servant to the Chancellour of old For in King Malcolms time amongst the Fees to be payed to the Chancellours Clerks there is a Fee to be payed to his Clerks for the Breeves which Breeves belong to the Director of the Chancery And therefore Skeen does justly Observe hinc liquet Officium Directoris Cancellariae apud majores nostros ad Cancellarium pertinuisse and which is very clear by the Statutes of King Rob. 3. cap. 1. vers 3. I find that in these Laws Iusticiarius that is to say The Justice General is placed next the Chancellour but afterward Scotland was divided in two Justitiaries on upon the South-side of Forth who was called Iusticiarius Lothaniae and in old Charters Iudex Laudoniae And the other on the North-side of Forth The Justice General is now neither Officer of the Crown nor Officer of State But yet he thinks he ought to have Precedency from the President of the Session the Justice Court being older than the Session And being President of a supream Court he is to preceed any Inferiour Member of any other Supream Court And the King by Declaring that he advanced the Register when he made him Justice General has clearly signified that the Justice General ought to preceed the Register This place likewise has been generally possessed by Noblemen and is the same with Us that the Chief Justice of the Kings Bench is in England And this Jurisdiction was amongst others possessed at Rome by the Praefectus Praetorio who was their chief Magistrat The Justice Clerk by the foresaid Statutes of King Malcolm appears to have been but his Clerk And though by the foresaid Act of the 11. Parliament K. Ia. 6. The Justice Clerk be named before the Register and Advocat yet that is onely ob continentiam causae because they are set down The Justice Justice Clerk and their Deputs It is Observable by that Act that the Justice General is put after the Thesaurer and Secretary and there the Justice Clerk is not made his Officer as in the Laws of King Malcolm Keanmore I find that Alanus Iusticiarius Scotiae Designs himself Hostiarius Iusticiarius Scotiae which shews that Hostiarius was a preferable Office and this I take to be Commander of the Kings Hoast For Ostiarius is not written with an H and is a meaner Office then Justice General This Charter is granted in anno 1253. to the Abbacy of Aberbrothick and though others may mistake the Ranking of a mans Titles yet the Bearer will carefully Rank his own Designations The third Officer named in those Laws is the High Chamberlain Camerarius Domini Regis And I find him in all the old Writes placed as Witness before all the other Officers next to the Chancellour There was Magnus Camerarius who was chief Judge over all the Burrowes And there were other under Chamberlains who are oftentimes Designed Camerarii without the adjection of magnus And I find in a Charter granted be K. David in anno 1495. the witnesses are Alexandro Domino Huyme magno Camerario nostro Iohanne Domino Drumond Iusticiario nostro Ricardo Murehead Secretario nostro Waltero Drumond nostrorum Rotulorum Registri ac a Consiliis It is Observable that the Officers were oft-times named according to the quality of the Bearers and not according to the precedency of the Offices But in the former Charter Dominus de Huyme and Dominus de Drumond being of the same quality the Chamberlain is put before the Justice General This Office of Chamberlanry was possessed Heritably of late by the Dukes of Lennox and the Badge was a Golden Key This Office is the same with praepositus Sacri Cubiculi mentioned by Iustinian and equall'd by him to the Praefectus Praetorio and placed inter illustres Palatinos or Counts of the Palace And is now in France called Grand Chambrier and was constantly possessed by the Family of Burbon I find the Magnus Camerarius placed before the Thesaurer in a Confirmation anno 1520. to the Abbacy of Aberbrothick
Senescallus Domini Regis is next in these Laws that is to say The High Steward of Scotland and Allanus Senescallus Scotiae is very Famous in all the old Charters and he is still placed before the Constable and Marischal And it appears that the High Steward and the Steward of the Kings House were the same for those Laws mention only the Steward of the Kings House but now the Prince is Senescallus natus Scotiae Under him are there placed the Panetarius who commands over all the Bakers and Buttelarius who commands over all the Keepers of Taverns c. I find the Lord Souls was Buttelarius Scotiae in the Letter before set down Directed from the Nobility of Scotland to the Pope in the Reign of King Robert the Bruce And I have seen a Charter wherein Iohn and Thomas Murrayes sons to the Governour of Scotland Sir Andrew Murray were designed Panetarii Scotiae upon the Forfeiture of Iohn Cunning Earl of Monteith in anno 1348. which Earl of Monteith was formerly Panetarius Next to these are named in the foresaid Laws the Constable and Marischal But now the Constable and Marischal take not place as Officers of the Crown but according to their creation as Earls The Reason whereof I conceive to be because of old Offices did not prefer those who possessed them but they took place according to their Creation whereas now the Privy-Seal precedes all Dukes and the Secretary takes place before all of his own Rank But the Constable and Marischal being now the onely two Officers of the Crown that are Heretable in Scotland continue to possess as they did formerly But in France England and all other places the Constable and Marischal take place as Officers of the Crown and it seems very strange that these who Ride upon the Kings right and left Hand when he returns from His Parliaments and who guard the Parliament it self and the Honours should have no Precedency by their Offices And yet I cannot deny but that of old other Earls were placed before them for in the former Charter granted by King Alexander Malcolm Earl of Fife is placed before them And I conceive their Precedency has not risen of late to the same proportion with others Because of late Our Armies have been commanded by other Officers and so there was little use for the Constable and Marischal The Constable with Us in these Northern-Nations is the same Office that the Comes Stabuli was under the Roman Empire which may be confirmed by two clear Testimonies of great Antiquity one is of Aimon lib. 3. cap. 7. Land gesilis Regalium praepositus equorum quem vulgo Comes Stabuli vocant The other is from Rhegino lib. 2. Annalium Burchardum Comitem Stabuli sui quem corrupte Constabulum appellabis cum classe misit in Corsicam Though the Learned Cujac does believe that this Title comes from the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies a company of Men of War ad l. unic de Comit. Tribun Scolar And there are some who derive it from the word Koning which signifies a King and Staple which signifies a Hold because some Constables were Commanders of the Kings Houses But I find that the High Constable did command the Kings Armies but was expresly debarred from commanding either His Houses or Garrisons as L'oiseau well observes lib. 4. cap. 2. Because says he It was a great power that one man should command both the Army and the Garrisons The Badge of his Office was and is a naked Sword which in the Roman Empire was the Badge of the Office Praefecti Praetorio and Trajan giving the naked Sword to Suro Licinius who was his Praefectus Praetorio gave it with these words Pro me si mereor in me Which words were thereafter put by Buchanan with a naked Sword upon the Money Coined during the Minority of King Iames the sixth The Constable with Us was by the Laws of King Malcolm cap. 6. Judge to all Crimes committed within twelve Miles to the Kings House or Habitation Though Skeen observes that the best Manuscripts bear only two Leagues But now his Jurisdiction is only exercised either as to Crimes or otherwise during the time of Parliament which some extend likewise to all general Conventions The Marischal is a German word and Office originally as the Learned Tillet proves fully a Marker of Camps and the Ax which he bears as the Badge of his Office was that Instrument wherewith he did break the Ground though now this part of his Office is delegated to the Marischal du Camp The Marischal commanded the Horse as Tillet proves whereas the Constable commanded both But yet our Learned Craig calls the Constable onely Praefectus Equitum And yet as Tillet observes the Marischal was not under the Constable else he could not be an Officer of the Crown For it is essential to all Officers of the Crown and Officers of State to depend upon none but the King Of old I find the Orders in Military cases run to Our Constable and Marischal The Office of Marischal has never been out of the Family of Keith But the Earls of Athol and several others have been Constables of Scotland And therefore it is that the Earl Marischal hath no other Title But the High Constable designs himself Earl of Errol We had no Knight Marischal in Scotland till King Charles the Firsts Coronation in anno 1633. at which time it was Erected by a Letter to the Privy Council by his Office he is to take place immediately after the younger Sons of Lords The Thesaurer is not mentioned amongst these Officers of the Crown under King Malcolm Keanmore and of old it has been thought but an Office of the Kings House For in a Confirmation granted to the Abbacy of Aberbrothick in anno 1529. by King Iames the fifth after Reverendissimis Episcopis and dilectis consanguineis are enumerate as Witnesses dilectis Familiaribus nostris Roberto Barton nostro Thesaurario Computorum nostrorum Rotulatore Nor do I find a Thesaurer designed as Witness in any of the Kings Charters till then though some foolishly think that Panetarius was Thesaurer And though the word Familiar Counsellour be now given to all Officers of State who are not Earls because they cannot be called Cousins Yet of old it was only given to those of the Kings own Family and was derived à Familia though now Familiar is thought to be the same with Intimate Till of late Thesaurer Comptroller and Collector of the Augmentations were three different Offices but now they are all joyned in one Comptroller is in the old Registers called Rotulator The Thesaurer takes now place as second Officer of State next to the Chancellor Next to the Thesaurer is the President of the Privy-Council After him the Privy-Seal but the Secetary is only first of his own Rank that is if a Duke the first Duke c. Of old the Secretary was a very Honourable Imployment For as
Cassiodor lib. 1. opist 4. well observes Honor hic datur egregiis dum ad Imperiale Secretum tales constat elegi in quibus reprehensionis vitium non potest inveniri But yet I find the Secretary onely named in the former Confirmation inter Familiares Of old I find he was Stiled Clericus Regis though some Interpret this Clericus Regis to be either Clerk-Register or the Kings Confessor and Clerk to His Closet and some that he was Almoner We have no Master of Requests now that charge being swallowed up by the Secretaries Office Their Office with Us was as at Rome To represent to the King the complaints of the People Referendarii says Cassiodor lib. 6. dolores alienos asserunt conquerentium vota satiant per eos Iudices corriguntur I find that Advocatus Fisci now Our Kings Advocat or Atturney-General was dignified with the Title of Comes which is now Earl l. jubenius i. de Advoc. divers jud and with the Titles of Clarissimus Spectabiles which was only bestowed on the chief Nobility l. 4. 6. eod tit and from this seems to have flowed Our calling them Lord Advocat And the French calling them Messire which Title only the Chancellor and Advocat there get Upon this Officer Rome in the Reign of Claudius the Emperour bestowed so much Honour that he said Tantum Honoris Authoritatis concessisse procuratori Caesaris ut eum suis Legibus adaequaverit volueritque ut quod ipse statuisset perinde ratum esset ac si ab ipso foret constitutum And of old they were still of the Order of Knights for Tacitus in the life of Agricola says utrumque avum procuratorem Caesaris habuit quae equestris Nobilitas est The Kings Advocat is with Us as in France Consiliarius Natus that is to say is by vertue of his Office a Privy Counsellor in a more peculiar way than the rest For I find by the Records of Council in Queen Maries time that the Register and Justice-Clerk are expresly mentioned in the Commission of Council but the Advocat is in all the Sederunts though he be not named in the Commission And though with Us it was not allowed to the Kings Advocat till Sir Thomas Hope's time that he should be present at the Lords advising of Causes where the Advocat was himself Interested Yet I conceive in Causes which he pleads meerly upon the Kings Account he ought to be present even when the Cause is advising This was allowed Advocato Fisci for Trajan writing to Plinius Commands eos adhibere in Consilium à Praesidibus cum de causa Fiscali agitur which explains very well L. 7. de Iur Fisc. Where si Fiscus alicui status controversiam faciat Fisci Advocatus adesse debet quare si sine Fisci Advocato pronunciatum sit divus Marcus rescripsit nihil esse actum ideo ex integro cognosci opportere Of which Office the Learned Budeus gives this Character Magistratus is est in quem omnes suas actiones Princeps Populus universi transcripserunt asylum Legum arx Iustitiae innocentiae vim passae aut Iudicio circumventae propugnaculum intercessor rerum malarum suasor rerum bonarum praesentis semper animi Actor Defensor de sententia Iuris Equitatis I find that though per L. nemo C. de assessor no man can be both a Judge and Advocat yet the Kings Advocats in France have been allowed to be Judges at the same time they were Advocats for it was thought that the Office of Kings Advocat did naturally participate both of the Judge and Advocat and so was not inconsistent with the Imployment of a Judge l. ult c. de Advocat Fisc. and this was so decided by the Parliament of Paris in Iune 1605. And from this We probably in Scotland took occasion a little after that time to make Sir William Oliphant and of late Sir Iohn Nisbet both Advocats and Lords of the Session The Almoner with Us has no Precedency for ought I know though in France Le grand Aumosnier is thought to be an Officer of the Crown He is very oft a Witness in all Our Charters granted be Our Kings and some think that Clericus noster was Almoner I find that Cockburn of Lanton who was also custos magni Sigilli in the second year of King Robert the thirds Reign is made heretable Ostiarius nostri Parliamenti that is to say Usher of the Parliament The Lyon and he does Debate who shall go next to the King or His Commissioner in Parliament and Conventions The Usher pretending that if he behoov'd to go after the Lyon he behooved to go before the Heraulds and so he behooved to walk between the Lyon and his Brethren which were not decent though both in England and with Us I find that several Degrees of Persons do in all Processions walk between the Garter or Lyon and his Brethren Heraulds Likeas it is implyed in the nature of the Ushers office that he should immediately usher him to whom he is Usher but in England I find that at the Cavalcad when His Majesty entred London in anno 1660. and at His Coronation Garter King of Arms did walk in the midst having the Mayor of London on his left hand and the Knight of the Black-Rod on his right And the Author of Les Memoirs des Ambassadeur tells Us that in anno 1629. at the Procession for Celebration of that solemn Peace betwixt France and Spain the King of Arms did walk immediately before the French King Le Roy d'armes marchant immediatement devant Le Roy. I am likewise informed that in England the Precendency runs thus King of Arms Usher of the Black-Rod Master of Ceremonies and after him the Gentlemen of the Privy-Chamber c. The Title of Duke came from Dux a Leader and Commander of an Army and was at first a Title of Office but now is a Dignity given by Kings and Princes to men of Blood and good Merit And with Us the Prince of Scotland as is already said is Duke of Rothesay The word Marquess was first appropriate to the Lords of the Marches and Frontiers but is since become a Title of special Dignity betwixt a Duke and Earl Earl came from the Saxon word Ear-ethel which was abridged to Ear-el and afterwards by Abbreviation Earl with the Dutch called Eorle and at this day the Germans use the word Grave for it They are in Latine called Comites with Us because in the Roman Empire Comitatus was called the Court of the Prince l. 43. de Testament Militar l. 13. ff de re Militar and those who attended the Emperor were called Comites or his Companions They were appointed to be Governours of the several Countrys of the Empire which were from them called Comitatus or Counties and Earls are to this day designed Earls of such a Shire But the Kings thereafter being desirous to have their Subjects depending immediately upon themselves did
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
Scotland counterchanged charged with an inescutcheon of the Royal Arms of Scotland supported on the dexter by the Royal Unicorn and on the sinister by a Savage or Wild-man proper and for the crest a branch of Laurel and a Thistle issuing from two hands conjoyned the one being armed the other naked with this Ditto Munit haec altera vincit And that they and their Heirs Male should in all time coming have place in all His Majesties and His Successours Armies in the middle Battel near and about the Royal Standard for defence thereof And that they and their Heirs Male may have two Attenders of the Body for bearing up the Pale one principal Mourner and four Assistants at their Funerals And that they should be always Called Intituled and Designed be the name and title of Baronet and that in all Scottish Speeches and writings the addition of Sir and in all other discourses and writings a word signifying the same should be preponed to their names and other titles and that the stile and title of Baronet should be postponed and subjoyned thereto in all Letters-patents and other writes whatsomever as a necessar addition of Dignity and that each of them should be intituled Sir A. B. Baronet and his and his Sons Wives should enjoy the stile title and appellation of Lady Madam and Dame respectively according to the usual phrase in speaking and writing And also His Majesty did thereby promise That the number of the Baronets aswell in Scotland as the new Colony of Nova Scotia should never exceed the number of 150. albeit this number is at present somewhat augmented and did likewise Declare That He nor His Successours should never Create nor Erect in time coming any other Dignity Degree Stile Name Order Title or State nor should give the Priority or Precedency to any Person or Persons under the Stile Degree and Dignity of a Lord of Parliament of Scotland which should be or should be presumed to be Higher Superiour or Equal to that of Baronet And that the Baronet should have liberty to take place before any such who should happen to be created of any such degree or order and that their Wives Sons Daughters and Sons Wives should have their places accordingly And that if any question or doubt should arise anent their places and prerogatives the same should be decided and judged according to these Laws and Customs by which other degrees of Heritable Dignities have their priviledges cognosced and determined And finally that none should be created Baronet either of Scotland or Nova Scotia till he had first fulfilled the conditions designed by His Majesty for the good and increass of that Plantation and until he had certified the same to the King by His Majesties Lieutenant there These Patents were ratified in Parliament and were always of this form till the selling of Nova Scotia to the French after which time they were made much shorter and granted in general terms with all the Priviledges Precedencies c. of the former Baronets And in the year 1629. His Majesty did allow these Baronets a particular cognisance which will be best known by the coppy of the following Letter direct be his Majesty K. Charles the first to the Privy Council here RIght Trusty and right well beloved Cousin and Counsellour Right trusty and well beloved Cousins and Counsellours and right trusty and well beloved Counsellours We greet you well Whereas upon good consideration and for the better advancement of the Plantation of New-Scotland which may much import the good of Our Service and the Honour and Benefit of that Our ancient Kingdom Our Royal Father did intend and We since have erected the Order and Title of Baronet in Our said ancient Kingdom which We have since established and conferred the same on diverse Gentlemen of good quality And seing Our trusty and well beloved Counsellor Sir William Alexander Knight Our principal Secretary of that Our ancient Kingdom of Scotland and Our Lieutenant of New-Scotland who these many years bygon hath been at great charges for the discovery thereof hath now in end a Colony there where his Son Sir William is now resident And We being most willing to afford all the possible means of encouragement that conveniently We can to the Baronets of that Our ancient Kingdom for the furtherance of so good a work And to the effect they may be honoured and have place in all respects according to their Patents from Us We have been pleased to Authorize and Allow as by these presents for Us and Our Successours We Authorize and Allow the said Lieutenant and Baronets and every one of them and their Heirs Male to wear and carry about their Necks in all time coming an Orange tannie silk ribbon whereon shall hang pendant in a Scutcheon argent a saltir azur thereon an Inscutcheon of the Arms of Scotland with an Imperial Crown above the Scutcheon and incirled with this motto Fax Mentis Honestae Gloria Which cognisance Our said present Lieutenant shall deliver now to them from Us that they may be the better known and distinguished from other persons And that none pretend ignorance of the Respect due unto them Our Pleasure therefore is that by open proclamation at the mercat-cross of Edinburgh and of all other head Burghs of Our Kingdom and such other places as you shall think necessar you cause intimate Our Royal pleasure and intention herein to all Our Subjects And if any person out of neglect or contempt shall presume to take place or precedency of the said Baronets their Wives or Children which is due unto them by their Patents or to wear their Cognisance We will that upon notice thereof given to you you cause punish such offenders by Fining or imprisoning them as you shall think sitting that others may be terrified from attempting the like And We Ordain that from time to time as occasion of granting or renewing their Patents or their Heirs succeeding to the dignity shall offer that the said power to them to carry the said Ribbon and Cognisance shall be therein particularly granted and inserted And We likewise Ordain thir presents to be insert and Registrate in the books of Our Council and Exchequer and that you cause Registrate the same in the books of the Lyon King at Arms and Heraulds there to remain ad futuram rei memoriam And that all parties having intress may have authentick copies and extracts thereof And for your so doing these Our Letters shall be unto you and every one of you from time to time your sufficient Warrand and Discharge in that behalf Given at Our Court at Whitehall the 17. of November 1629. years The order of Baronet in England was erected by King Iames the sixth for advancing the plantation of Vlster in Ireland and these Knights have Priviledges and Precedencie much like to those above set down and there being a Contraversy for Precedency betwixt them and the younger sons of Viscounts and Barons managed in
presence of King 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
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
the nature of those Certifications they ought to take place every where except where express Law or Decisions have restricted them And therefore since there is no Law nor Decision Declaring that Certificationss shall not be granted against Patens or Infeftments which transmit Honour they ought to be granted against these aswell as against other rights Nor is it craved that these Certifications should run against Honours transmitted via facti such as Robing and Belting and though the Pursuer be not designed by his Infeftments the first Earl yet that cannot hinder him from removing by this Certification all Writes or Evidents which may hinder him to be the first Upon which Debate the Lords refused to grant Certification against such Patents or Infeftments Courses taken by Princes and Iudges when they intend to shun the decyding of Contraversies concerning Precedency and to preserve the Rights of all the Competitors First They ordain the Competitors to preceed one another by turns and alternatively And thus the Emperour Lewis the fourth did in anno 1328. decide betwixt the Prince Palatine and the Duke of Bavaria and so the Parliament of Paris decided in anno 1616 but lest the first turn should give the Precedency that uses to be decided by lot And I find this alternation very old for the Thebans did so decide betwixt the brother-Brother-Kings Etheocles and Polinix and Plutarch observes the same betwixt Thyestes and Attreus Secondly They use to assigne one of the Competitors a place out of all Rank as was done to the Spanish Ambassadour in the Council of Trent and is frequently done in Our Parliaments But though this preserves the Right it insinuates a Ceding And therefore the juster way is to place both so without the Benches as that neither of their seats can shew any Preference as was done at the Council of Trent betwixt the Emperours Ambassadour and the Cardinal of Trent Thirdly They use to cause them enter by several doors as was observed betwixt the Queen of France and Margaret sister to Charles the fifth as Guicciardin observes Fourthly They use round tables or to write the names of the Pretenders in a circle an example whereof we have in Gaius lib. 1. Institut and Pope Vrbane having desired the Franciscans to give him three of their number out of which he might chuse one to be Cardinal they wrote down their three names circular-ways but in this case the names should be written down exactly in the midle of the table or paper for else as Crantzius observes he whose name is next to the top of the paper has thereby some Precedency Fifthly The eldest of the Competitors is still ordained to preceed Of which Livius gives an instance lib. 42. and King Iames the sixth decided so between several Families in Scotland and particularly between the Lairds of Blair and Balthaok Sixthly Sometimes he who was first promoted to a Benefice or Office is preferred where the difference is betwixt the Offices or Benefices and thus it was decided betwixt the Sees of Rheims and Treves Sevently Sometimes also the Competitors are preferred according as they produce their Commissions as was done in the Council of Trent betwixt the Ambassadours of Portugal and Hungary and the Polonians do frequently in Competitions between Ambassadours prefer him who first enters their Territories Bodin de Repub. lib. 1. cap. 9. Eightly Sometimes also the Competitors are ordained to give their suffrage and preceed according to the respect due to the Nations and not to the persons as was decided in the Council of Constans and Basil. Ninthly It is observed that Octavius Farnesius Prince of Parma and Placentia to shun the difference of Precedency betwixt his two Towns of Parma and Placentia did write himself Duke of P. P. And King Iames the sixth to shun any debate that could have been between Scotland and England assumed the title of King of Great Britain Tenthly Some use to secure themselves against such contests by Protestations which certainly do interrupt prescription and preserve the Protesters right L. 14. § 8. ff de Relig. but in that case the protestation must be presently interposed for protestations after the deeds contraverted are ended and past are concluded to be of no value Carpzol def 22. for protestations cannot be drawn back But it has been doubted whether the person against whom the protestation is taken does prejudge himself when he does not protest in the contrar for this seems to infer an acquiescence that the protestation is just since qui tacet consentire videtur and this is the occasion why in our Judicatures when one protests the other ordinarly protests in the contrare But yet it is generally concluded that Silence in that case does not prejudge him against whom the protestation is taken since he knows that in Law the protestation secures his right Tusc. tom 6. Conclus 941. FINIS