Precedency that the eldest Sister has And therefore I ascribe this difference rather to the custome of Nations meerly founded upon the respect due to that Sex During the Marriage the Wife regularly participats of the condition of her Husband by the Civil Law and Law of Nations L. 3. C. de Dignitat Mulieres Honore maritorum erigimus genere nobilitamus and since she was to be sharer in his misfortunes the Law thought it just that she should be sharer in his Advantages And the Wife by the Canon Law is called Socia divinae humanae domus and L. Foeminae ff de Senat. it is said that Foeminis dignitatem clarissimam mariti tribuunt But yet this rule has some exceptions for though in France the wives of those who have their Dignities by Offices enjoy the same Precedency with their Husband together with a communication of his title and thus they say there Madam la Chanceliere Madam la Praesidente Yet it is not so with us who think that Offices are bestowed on Husbands upon a personal account which is not communicable to their Wives and yet in some Temporary Dignities such as that of a Knight-batchelour the Wife participates of the Husbands title and precedency Though I find by the Heraulds Records that this proceeded originally rather from Courtesie than from Law and that of old a Knights wife enjoyed onely his Honours during the Spousals nor were they to be called in Law Dame Alice or Dame Catherine c. after the Marriage was dissolved By our Law likewise If a woman have Precedency by her Birth or Descent she retains still the same notwithstanding she marry a person of inferiour dignity contrare to the Rules of the ivil Law And thus if the Heiress of a Dutchie or Earldom marry a Gentleman she has still the precedency due to a Duke or Earl albeit by the Civil Law L. 8. de Senat. it be exprest that Parentes donee Plebeiis nuptiis fuerint copulatae c. the reason whereof is as Faber observes upon that Law because it were most absurd that the Wife should have more dignitie then her Husband and thus Livius observes that Virginia daughter to a Patrician or noble Roman was debarred from the Honours due to her Birth because she had married a Plebeian And it seems indeed that he being her Head it is most unnatural that any part should be more honourable then the Head Nor can there be any thing more contrare to that superiority given both by the Law of GOD and Man to Husbands nor any means fitter to make a Wife despise her Husband than this is But I think this precedency has arisen from the Feudal Law for the wife having once a noble Fee she cannot forfeit the same by her Marriage and therefore she must retain the dignity that is annexed to it which is incommunicable to her Husband because he is not in Fie But it is observable that if the daughter of a Nobleman marry another Nobleman she will lose the precedency due to her by her Birth though she would not have losed it if she had married a Gentleman and the reason of this seems to be because by marrying a Nobleman she receives another Feudal dignity which suppresses the first I find it observed in Judge Cook lib. 12. fol. 112. that if a Baron dies having divers daughters the King may conferr upon either of them the title And thus the Lord Cromwel having died without heirs Male Burchier who married the youngest daughter was made Lord Cromwel of which we have no example in Scotland for by our Law if the title descend to Females by the Patent the eldest onely can succeed to the title but if it descend not by the Patent to Heirs Female then the King may admit neither to the title or either as he pleases After the Husbands decease the Wife did by the Civil Law enjoy her Husbands precedency during her Widowity but if she marry to a person of inferiour quality she loses that Precedency L. 8. de Senat. which holds with Us and in England And yet sometimes the King allows her the same Precedency by a Letter as he does also to the daughters of Dukes and others who have lost their Precedency by Marriage which Letters or Warrands are direct to the Heraulds Office and Registrated there And the Queen never loses her former Dignity though she marry the meanest person after the Kings death And generally all the priviledges due to the King are communicated to the Queen per L. 31. ff de Leg Augusta autem Legibus soluta non est Principes tamen eadem illi privilegia tribunut quae ipsi habent Notwithstanding whereof Lawyers think that her Bastards are not Noble as the Bastards of Kings nor does the Womb ever nobilitate The Countrey of Campaigne in France onely excepted where it is sufficient that either the Father or Mother be Noble which was allowed to the Ladies of that Countrey upon the killing of all the Nobility at a great fight Papon de Nobles num 3. By the Civil Law also a Widow living leudly loses her former dignity Arg. § Fin. in authent de restit but this holds not with us vide Bon. de Curt. de Nobilitate cap. 12. num 194. It has been doubted whether a mean woman marrying a Nobleman retains the priviledge due to her by her Husband who has been degraded by forfeiture or otherwayes and Corbin cites a decision 27. August 1698. whereby it was resolved that she retains still her former priviledge since crimes are personal which is also our Custom It has been likeways doubted abroad whether a Noblewoman marrying a Plebeian and thereby losing the Precedency due to her Birth if she marry a Gentleman in the second Marriage she will thereby recurr to her first Dignity the person be whom she lost the first Dignity being dead And it was found that she will not for in Law that which is once extinct does not revive and therefore Women in such cases take Letters of Restitution as they call them or procure a warrand from the King for that effect as the custom is with us ut interveniet Principis restitutio quae plebecitatis maculam abstergat Traitte de la noblesse pag. 324. But there would be no place for this question here since with us a Noblewoman would not lose her Precedency by marrying a Plebeian but the doubt behoov'd to be thus stated with us viz. Whether a Noblewoman marrying a Nobleman of an inferiour degree would recover her first dignity she marrying thereafter a Gentleman Or whether a Knight-Baronets Lady marrying a Plebeian could thereafter recover her dignity if she marry a Gentleman For I conceive a Knight-baronets Lady does not like a Noblewoman retain her Precedency when she marries a person of inferiour quality and I think neither of them would recover their former dignity without a special Warrand I find that the Commissioners appointed to regulate Queen Anns Funerals did
any who have sworn Alleadgeance and live within the Spainish Dominions though not within Milain since then the English would not allow us the Right of Sucession nor the other benefits due naturally to Subjects it was strangely monstruous and repugnant that they designed to make the World believe that we were Subjects It is also very remarkable that if our Kingdom had been only a Feu holding of England our Nobility could not have precedency from others according to their Antiquity for all the Nobility of the Superiour Kingdom ought in the opinion of such as writ of precedency to be preferred to these who live in the Vassal-kingdom 10. If Scotland had been a Feu to England the king of England as Superiour would have had the keeping of our young Princes and the disposing of them in Marriage and the Feu would have been in his hand during their Minority that being implyed in the Right of proper Feus by the Feudal Law And this must be presumed to have been a proper Feu as all Feus are presumed to be except the Vassal can prove that the Nature of the Feu was impropriated for the Vassals Advantage But yet no king of England did ever pretend to the Guardianship of our young Princes nor to name Governours during their Minority But on the contrare Alexander king of Scotland having left only a young Princess called Margaret who was Nice to the King of England he did not pretend to the keeping of the young Princess but intreated that she might be married to Edward the second his son and that if there should be no issue of that Marriage Scotland should remain a free Kingdom as it was formerly inthe dependent from all pretentions of the kings of England Which is likewise another acknowledgement made by the kings of England themselves of the independency of Scotland And if the kings of England had been Superiours of Scotland there would have been some Vestige of this Superiority to be seen in our Laws whereas all our Laws call still our Crown the Imperial Crown of Scotland Or in our Coyne all Coyns bearing some Impressions from the Superiour And the Kings of England might have remanded from our Courts or out of our Country such as had committed crimes against their kings or Laws It being an undoubted principle of the Feudal Law That qui habet dominium directum potest jurisdictionem suam explicare tam in territorio Vassalli quam in suo habet enim dominus jurisdictionem cumulativam cum Vassallo But so it is that it can never be alleadged That the Kings of England offered to exerce any Jurisdiction in Scotland or did require any criminals who had fled into Scotland to be delivered up to them Nor did ever the English pretend to punish such Scotsmen as were taken fighting against them abroad as Traitors and Guilty of Treason as certainly they would have done if they had been Vassals to England But on the contrair the English did also ransome them and use them every way as they did other Strangers and Forreigners 11. The Scots having intended a Declarator of Freedome against Edward the first king of England the Process was delegated by Pope Boniface the VIII to Baldredus one of the greatest Lawyers of that time who considered very fully the Reasons proponed hine inde by both parties and having made a full Report to the Pope the Pope did very sharply reprove the king of England and declared that Scotland did not depend upon it any manner of way and that the English had attacked Scotland most unjustly against all both Divine and humane Laws as Duchesne observes pag. 66. The Letter it self that was writ to the king of England with all the process which was called Processus Baldredi being yet extant in Fordons Chronicle And it cannot be denyed but that England might have expected much more favour from the Pope than Scotland could since they payed him a constant Revenue called Peters pence and since England was known to afford much greater Casualties to the Pope then could have been expected from this kingdom In stating the Arguments which are proposed by the English for proving that the kings of Scotland were Vassals for their Crown to England I shall begin with these which were insisted upon by King Edward the 1. in the former process The first was That Brutus descended from the Trojans did conquer Britain and divided it amongst his three sons to the Eldest of whom called by Historians Locrin or Locuus as he is termed in that process he left Logria now called England To the Second called Albanactus he left Albanie now called Scotland To the Third called Camber he left Cambria now called Wales But Humbert King of the Huns having killed Albanactus Locrin the elder to revenge his brothers Death did kill Humbert and reunite Albanie to Logria or England The second was That Donvall king of the Britans killed Staterius king of Scotland who rebelled against him and became Master of the whole Isle which Dunvall having two sons Belinus and Brounus he left the Superiority of Scotland with England to the eldest and the property only of Scotland to the second The third was That Arthur king of the Britans having overcome Scotland he gave that kingdom to Angusell who acknowledged him as his Superiour and carried the Sword before him The fourth was That Aldestan king of England having conquered Constantine king of Scotland did pray to GOD that by the intercession of St. Iohn de Benlaco he might by a miracle be declared the just Superiour of Scotland Whereupon he did strick with his sword at a Rock near Dumbar and made a Gape in it a full yard in length The fifth was That William king of Scotland did acknowledge himself Vassal to William the Conquerour Alexander king of Scots acknowledged himself Vassal to king Henry And that the Nobility of Scotland called in the said Edward to arbitrate the Differences betwixt the Bruce and Baliol. Peter Heylen speaking of Scotland in his Geographie pag. 1289. affirms That the Kings of Scotland were still Vassals to the Crown of England which he endeavours to confirm by these Arguments 1. By the Homages Services and other Duties done by the kings of Scotland to those of England Malcome the third doing Homage to William the Conquerour as William one of his Successors did to Henry the second and that not only for three Counties in the North of England or the Earldome of Huntingdoun as is by some pretended but for the very Crown it self Kenneth the third being also one of those Titulary or Vassal Kings who rowed king Edgar over the Dee 2. By the interposing of king Edward the first and the Submission of the Scots to that interposing in determining the Contraversie of Succession betwixt Bruce and Baliol as in the like case Philip the fair adjudged the Title of Artoys which was holden of the Crown of France and then in question betwixt the Lady Mawd
and her Nephew Robert Or as king Edward the third in the Right of the said Crown of France determined of the Controversie betwixt Iohn Earl of Montford and Charles of Bluis for the Dukedom of Bretaigne 3. By the Confession and acknowledgement of Prelats Peers and others the Estates of Scotland subscribed by all their hands and seals in the Roll of Ragman wherein they did acknowledge the Superiority of the kings of England not only in regard of such Advantages as the sword had given him but as his original and undoubted Right Which Roll was treacherously delivered into the hands of the Scots by Roger Mortimer Earl of March in the begining of the Reign of king Edward the third 4. By the tacite Confession of the kings themselves who in their Coyns Commissions and publick Instruments assume not to themselves the Title of kings of Scotland but of Reges Scotorum or the kings of the Scots and thereby imitating that though they are kings of the Nation yet there is some Superiour Lord king Paramount as we may call him who hath the Royalty of the Land 5. By the Judgements Arrests of the Courts of England not only in the times of king Edward the first but in sometimes since For â—hen William Wallace a Scotsman by birth and the best Souldier of that Country was taken prisoner and brought to London he was adjudged to suffer Death as a Traitor which had been illegal and unrighteous judgement had he been a prisoner of War and not lookt upon by the Judges as subject to the Crown of England The like done in the case of Simeon Fraâ—â—ll another of that kingdom in the same kings Reign In like manner in the time of king Edward the third it was resolved in the Court in the Lord Beaumonts case when it was objected That one of the Witnesses was a Scot and therefore as an Alien not to give his evidence that his Testimony was to be allowed because the Scots in the Law of England did not go for Aliens And when one indicted for a Rape in the thirteenth year of Queen Elizabeths Reign desired a medietatem linguae because he was a Scots-man and so an Alien it was denyed him by the Court because the Scots were not reputed here as Aliens but as Subjects rather So also when Robert Vmsramville Lord of Kyme was summoned to the Parliament of England in the Reign of king Edward the third by the name of Robert Earl of Angus which is a Dignity in Scotland and after in a Writ against him was called by his own name of Vmsramville without any Addition of that Honour the Writ was adjudged to abate which I conceive the Learned Judges had not done if Scotland had not been reputed to be under the Vassalage of the kings of England 6. And lastly by a Charter of Lands and Arms which I have in my Custody granted by king Edward the first in the last year of his Reign to Peter Dodge of Stopworth in the Countie of Chester one of the Ancestors of my mother In which it is exprest that the said Lands and Arms were conferred upon him by that king for his eminent Services encontre son grand enemi rebel Baliol king of Scotland and Vassal of England In Answer to these Objections founded upon the Reign of Brutus I need say no more save that Cambden and the other Learned English Writers do look upon the same as a meer fiction And for proving the Crown of Scotland to hold of England there must be authentick Documents in Writ produced as has been formerly debated And this does sufficiently answer all that is said of Bellinus king Arthur c. But to refute these Fictions and to show how much of Cheat is in all these Contrivances I need only cite a passage from the Learned Aylet Sammes in his Britannia antiqua pag. 159. whose words are That which gave some Authotity to this Fiction was the use king Edward the first made of it in vindicating his Title to Scotland against the pretence of Pope Boniface and the Church of Rome who laid claim to that kingdom by ancient Right as part of St. Peters Patrimony and that Churches Demesne It appears that the Monks and Friers had a great hand in making out this Title by Brute which story was now new vampt and from all parts sent out of these shops where at first it had been forged and hammered out And this doth more evidently appear if we consider many other parts of the same Letter as it is found in the Records cited by Mr. Prin but especially that miracle of king Adelstane who in perpetuam rei memoriam to give an evident signe of his Right to Scotland with his sword struck a blow upon a Rock near Dumbar that he Cleft it at least an Elne wide As to the Homage made by king Malcome to William the Conquerour it is answered That the matter of Fact is absolutely denyed And not only do our Historians and the Historians of Forreigners mention no such submission but they do on the contrair relate That William the Conquerour having come with a Designe to conquer Scotland he was forced by Malcome king of Scotland to a Peace very Honourable and Advantagious for Scotland one Article whereof was That William the Conquerour should restore such of the English Nobility as had fled to Scotland for shelter to their Estates and Honours And how can it be imagined that Scotland being then very Unite and living under a most warlike Prince would have submitted to a king who had too much to do at home or that King Malcome would have submitted to him whom he forced to restore even the English who had Rebelled against him And as the Constitution of Vassalage requires Writ so if any such Vassalage had been acknowledged he had accepted of a Charter holding of the Conquerour as all the other Vassals did As to King Williams Homage to Henry the second it is Answered That William having been treacherously made Prisoner he was forced by a long and tedious Imprisonment to make this Homage and consequently the Homage it self was null being extorted by Force and made by a person who was not sui juris being in prison It being certain by the Laws of all Nations That Deeds done by Prisoners are null but especially in this case where the Deed was such as that it would have been null however For even the most absolute Kings are so far from being able to alienate their Kingdom or enslave it that by so doing as some say they forfeit their own Right and make the Throne void for the next Successour who is not obliged by what they have done And if any such Act as this were binding then England by the same Argument had remained a Feu of the Empyre since Richard the first their King did Homage to Henry the Emperour for England and King Iohn his brother did the like Homage to the Pope and offered to
in this Point For some have been of Opinion that those that are born before the Dignity was attained cannot pretend to the Precedency due to the Father for he cannot be said say they to be the Son of a King or Marquess whom a King or Marquess did not beget And since those who are born before a Crime is committed loose not their Dignity by the Fathers committing of the Crime So by the Rule of Contraries he who was Born before his Father was Advanced to a Dignity ought not to participat of that Dignity This they found likewise upon express Laws L. si Senatus Cod. de Dignitat L. Imperalis Cod. de Nupt. and thus Darius was preferred to be King of the Persians to Artabazanes Others do more justly conclude that these are to be Preferred though Born before the Dignity was obtained For if he who was Born in that Condition can be called the Kings Son he must be the Kings eldest Son And it were very absurd that the Father should be Noble and the Son not And if a King had but one Son he could not be King if this were allowed and this is most clear L. Senatoris Filium ff de Senat. where it is said That he is aswell to be called the Son of a Senator who was Begot before the Father was a Senator as he who was Begot after And though this be true as to Succession and as to the Degree of Nobility in general yet many Lawyers are of Opinion that they do not attain to so eminent a Degree of Nobility as if they had been Born after the Father attained to his Nobility For by the former Law si Senator natus ex illustri ante Dignitatem adeptam est clarissimus solum natus postea illustris Others there are who say That these who were Born before may succeed to Honours which descended from old Predecessors but those which were acquired in the Fathers own time should onely descend to such as were Born after these Honors were acquired But now generally in Europe and particularly with Us even those who were Born before the Father attained to any Dignity do participat of his Dignity as if they had been born after the same was acquired in all cases QVESTION XIV Whether ought a Son who is in publick Imployment and Dignified to Preceed a Father who is not It is answered That a Son being in publick Imployment ought to preceed a Father who is not And thus Fabius Maximus commanded his Father to light down from his horse when he was to meet him and was praised for mantaining the Dignity of the Roman Empire in this case And the Son in this case is not a private person but Represenrs the Prince or Common-wealth who are to be preferred to any person and therefore Laurentius Celsi was justly taxed at Venice because he would not meet his Son when he was newly made Duke of Venice least by being discovered before him he should lessen the Perogative of a Father But it may be doubted Whether though this hold in Employments it ought to hold in Titles since in these the Son Represents not the Common-wealth And therefore in these cases the Laws of Nature ought to prevail above the Laws of Honour especially if there be none present but Father and Son But if there be a third person present who will take the place from the Father but not from the Son then the Son must preceed the Father because though he yeeld to his Father yet he should not yeeld to a third Party And it is a general Rule in matters of Precedency that I must preceed you if I preceed him who preceeds you which is not unlike that Maxime used in other parts of Law qui vincit vincentem me vincit me QVESTION XV. Whether may he who has the Survivance of Imployment challenge any Precedency upon that Account To this it is answered That he cannot Claim any Precedency For though there be there the hope of Succession and that the person to succeed be in actu proximo and that likewise it may seem that he is advanced to a Dignity and so ought to have a Precedency suteable to it and that it may likewise seem fit for the Interest of the Commonwealth that these should be Respected and Preferred who are marked out for the Service of the Common-wealth Yet Law nor Custom have given them no Precedency for since they have actually no Dignity nor Power they ought to have no actual Precedency And thus it was found by the Parliaments of Paris and Tholows in anno 1551. 1560. that these who had Survivances were onely to be preferred according to the dates of their actual Admission And so these who were Admitted to be Councellours or Judges after they got their Survivance ought to have the Precedency from them if they did actually administrate before them vid. Maynerd Notabil quest cap. 72. Math. de afflict deciss Neapolitan 1. QVESTION XVI Whether does the Daughter of a Lord who would himself have been an Earl if he had lived take place from the Daughter of a younger Earl It may be alleaged that the Daughter of the Lord should not preceed because an Earles Daughter should still preceed a Lords Daughter and this Ladies Father was never an Earl nor are We to consider futur Honours in the matter of Precedency And as she would not take it in her Fathers time so neither ought she after his death And as her Father himself being a Lord though an Earles Son would not have taken place from the younger Earl so neither should the Lords daughter from the Earles daughter he being a younger Earl then that Lords Father And I find by the Heraulds Records in England that Sir Thomas Lees daughter got a Warrand from the King to take place as a Lords Daughter her Father having died before his Father the Lord Lee which proves that she could not have taken place otherwise and this is commonly receiv'd in England But yet it may be Debated That the Daughter of that Lord should have the Precedency since her Father would have been an elder Earl And though she could not take place during her Grand-fathers time who was the elder Earl yet per jus accrescendi and the right of Representation she comes after her Grand-fathers death to be the Daughter of the elder Earl for Honour is but a part of Succession and therefore as she might have right to her Fathers Succession if she have not Brothers she may by the same reason have Right to the Honours And it were very ridiculous to Argue so as that her elder Brother if she had any might take place as an Earles Grand-child and that she could not take the same place as his Sister and consequently since he would take the place of that younger Earl so should she of that younger Earles Sister or Daughter And the Reason why she comes to a higher Degree of Precedency by the death of her