1654. Excepting onely the Ambassadours of Austria and the Ambassadours of Forreign Kings were still allowed to take place from all the Electors except the King of Bohemia in all the Solemnities of the Empire But the Ambassadours of Common-wealths having claimed the same precedency The Emperour Leopold has Decerned against them in favours of the Electors Crus lib. 4. cap. 4. The eldest Sons of the Electors preceed all the other Princes of the Empire The Arch-dukes of Austria have the first Seat next to the Electors CHAP. VII Of the Precedency of Church-men I Need not debate the Differencies that have fallen in amongst the Patriarchs of Rome Constantinople Antioch Alexandria and Ierusalem Those of Rome and Constantinople having claimed Precedency because their See were the seats of the Roman and Grecian Empires Those of Ierusalem claiming preference because the chief Priest-hood was once settled there Those of Antioch claiming precedency because Antioch was the first seat of Christianity as is clear by the 11. chapter of the Acts And those of Alexandria pretending that they were equal to the Roman Patriarch at least because Alexandria was the chief City of the East before the building of Constantinople and the Church thereof being by Euseb. lib. 11. said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vide Salmas de Primat pap cap. 12. Thus far did Precedency invade even Religion and raise Emulation amongst those who pretended to be the greatest Paterns of Humility The Roman Patriarch was by Phocas the Emperour raised above all the rest in the year 606. since which time they have raised themselves by several Degrees to the Papacy though it cannot be denyed but even before that time the Bishops of Rome had the first Seat in all Councils as is clear by Iustinians Novella 131. cap. 2. And in the Council of Nice Adrian Bishop of Rome had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Or the power of preceeding did still belong to the Emperours as hath been fully cleared by Crusius and others And though it be pretended that Constantine the Great did from Christian Humility prefer the Successour of St. Peter as Vicar of IESVS CHRIST to himself and that in the Canon Law cap. Constantinus 14. Dist. 96. the Emperour Constantin is brought in acknowledging himself to have led the Popes Bridle and in the Famous Ceremonial of Rome Fol. 21. the Emperour is allowed no higher place then the Popes Foot-stool Yet Frederick the 1. Emperour did contentiously Debate this Precedency with Adrian the fourth since which time it hath been variously acquiesced in by Popes and Emperours And though the Legats be Representatives of the Popes yet Thuan tells us lib. 98. That the Learned Brissonius President of the Parliament of Paris would not suffer the Popes Legat to preceed him And at the Coronation of Charles the fifth the Pops Legat was denyed the precedency from the Electors The Cardinals have Debated for Precedency with the Patriarchs though by the Novella 132. c. 2. Iustinian places Patriarchs next to the Pope And Panormit in cap. antiqua X de privileg excess Praelat prefers the Patriarchs to the Cardinals and now by the Concession of Sextus Quintus that Pope hath raised the Cardinals to an equal Degree with Kings and if Kings be present at Table or other Solemnities with Cardinals If there be but one King he is to sit after the first Cardinal Bishop and if there be moe Kings they sit mixtly with the Cardinals first a Cardinal and then a King But though this holds amongst Popish Princes yet the Authour of Les Memoirs des Ambassadeurs does Observe That Leicester Grotius and the other Ambassadours of PROTESTANT Princes never yeelded Precedency to Cardinals till Lockhart Ambassadour for Cromwel yeelded it to Cardinal Mazarine Where he likewise observes That though the Prince of Condie yeelded the Precedency to Cardinal Rechlieu yet the Count of Soisson refused it The Bishops of Scotland preceed in this manner Arch-bishops of St. Andrews Arch-bishops of Glasgow Bishops of Edinburgh Bishops of Galloway Bishops of Dunkel Bishops of Aberdeen Bishops of Murray Bishops of Rosse Bishops of Brechin Bishops of Dumblane Bishops of Caithness Bishops of the Isles Bishops of Argyl Bishops of Orknay I find by Letter in anno 1625. that before King Iames going into England the Marquesses of Scotland did take place from the Arch-bishops But now the Arch-bishops take place from all Dukes and Marquesses in imitation of England And by a Letter in anno 1626. renewed in anno 1664. The Arch-bishop of St. Andrews is to take place from all Subjects which is to be limited as not to exclude the Kings Children and Brothers as I conceive And de facto the Arch-bishops of St. Andrews ceds to the Chancellour since the Letter The Bishops of England Preceed thus Arch-bishops of Canterbury Arch-bishops of York Bishops of London Bishops of Durham Bishops of Winchester Bishops of St. Davids Bishops of Ely Bishops of Norwich Bishops of Hereford Bishops of Salisbury Bishops of Peterborough Bishops of Carlisle Bishops of Worcester Bishops of Rochester Bishops of Landaff Bishops of Lincoln Bishops of Bangor Bishops of Exeter Bishops of Chichester Bishops of St. Asaph Bishops of Oxford Bishops of Lichfield and Coventrie Bishops of Bristol Bishops of Glocester Bishops of Chester Bishops of Bath and Wells CHAP. VIII General Observations concerning the Precedency of Subjects NObility is devided with Us as in England in Nobiles Majores Minores the Greater and the Lesser Nobility Under the Greater are comprehended all such as are Lords of Parliament Under the Lesser are comprehended Knights and Gentlemen And though all these be not Peers of Parliament yet they are all Peers to one another And thus a Gentlemen may be offered to a Dukes Daughter whose Ward and Marriage falls to the King as has been often decyded nor can that Match be refused upon the account of Inequality And it hath been found that though Noblemen must be judged by their Peers yet Landed Gentlemen may pass upon their Assyse and a Nobleman is oblieged to accept of a Challenge from a Gentleman as his Peer where Duels are Lawful Under the word Barron all Our Nobility are comprehended as is clear by the 81. Act. Parl. 14. Ia. 2d And the Inscription of the first Parliament of K. Ia. 5th where the Parliament is said to be holden per Regis Regni tutorem una cum Praelatis Barronibus Burgorum Commissariis Albeit the Parliament of Rob. 1. was cum Episcopis Abbatibus Prioribus Comitibus Barronibus aliis Magnatibus which shews that there were other Magnates infra Barrones It may be Doubted Whether the Younger Son of Dukes Marquesses c. are to be Ranked inter Nobiles majores since they sit not in Parliament Or inter Nobiles Minores since they are designed Lords and take place from many of the Nobiles Majores The Sons of the Kings of France were all Kings and Soveraigns in
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
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
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