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A50712
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Observations upon the laws and customs of nations, as to precedency by Sir George Mackenzie ...
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Mackenzie, George, Sir, 1636-1691.
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1680
(1680)
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Wing M186; ESTC R5733
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107,612
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141
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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
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