upon the 20. of May 1619. declare That the Ladies of the Privy Chamber should in time of mourning take their places as if the Queen were living till the Funerals were ended and that the Queens Chamberers should for the present Funeral go before Countesses women without prejudice to Countesses women at any time thereafter It is fit to observe That the Wives and Daughters of all Dukes Marquesses Earles c. do take the same place that the Husbands and Sons do conform to the Precedency formerly exprest pag. 35. And I find in the Heraulds Office of England an establishment settled thus amongst women by Iasper Duke of Bedford and other Noblemen by warrand from Henry the fourth The Wives of Dukes of the Blood Royall The Wives of other Dukes The Wives of the eldest Sons of Dukes of the Blood Royal. The Daughters of Dukes of the Blood Royal. The Wives of Marquesses The Wives of the eldest Sons of Dukes The Daughters of Dukes Countesses The Wives of the eldest Sons of Marquesses The Daughters of Marquesses The Wives of the younger Sons of Dukes The Wives of the eldest Sons of Earles The Daughters of Earles The Wives of Viscounts The Wives of the younger Sons of Marquesses The Wives of Barons that is to say our Lords The Wives of the eldest Sons of Viscounts The Daughters of Viscounts The Wives of the younger Sons of Earles The Wives of the eldest Sons of Barons or Lords The Daughters of Barons The Wives of Knight-bannerets The Wives of the younger Sons of Lords The Wives of Knight-batchelours The Wives of the eldest Sons of Knights-bannerets The Daughters of Bannerets The Wives of the eldest Sons of Knight-batchelours The Daughters of Knight-batchelours The Queens Maids of Honour The Wives of the younger Sons of Banerets The Wives of the younger Sons of Knight-batchelours The Wives of Esqueirs The Wives of Gentlemen The Daughters of Esquiers The Daughters of Gentlemen The Wives of Citizens The Wives of Burgesses From all which it is to be observed that the wife of the eldest Son of any degree takes place before the Daughter of that same degree and both of them take place of the younger Sons wife of the preceeding degree Thus the Lady of the eldest Son of a Marquess preceeds the Daughter of a Marquess and both preceed the Ladies of Dukes younger Sons Item the Wife of the next degree as a Countess preceeds the Lady of the eldest Son of the preceeding degree as of a Marquess and the Daughter of a Marquess 3 o. This holds not only in comparing degrees amongst themselves but also in comparing Families of the same degree amongst themselves as for instance though the Marquess of Dowglas Lady would give place to the Marquess of Huntlys Lady yet the Wife of the Marquess of Dowglas eldest Son would take place from the Marquess of Huntlys Daughter 4 o. Though of old with us in Scotland the Wives of Lords did contend that they had the Precedency from the Daughters of Earles Yet since that Letter written by King Charles the first at his Coronation we follow the custome of England in preferring the Earles Daughter who takes place immediately after her eldest Brothers wife 5 o. Though the Daughter of a Marquess gives place to the wives of the eldest Sons of all Marquesses yet if that Daughter be an Heiress and the Daughter of an elder Marquess then she takes place from the wives of the eldest Sons of all younger Marquesses as Segar observes pag. 240. It is likewise observable that since this Ranking under Henry the fourth there are several new additions For after the wives of Lords eldest Sons and Lords Daughters are Ranked the Wives of Privy Counsellours and Judges Wives of the younger Sons of Viscounts and of Lords or Barons the Wives of Baronets the Wives of Bannerets the wives of the Knights of the Bath and the Wives of Knights-batchelours c. as in the former List. Some considerable Questions concerning Precedency Resolved QVESTION I. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be Considered or what they were formerly To which it is answered with this Distinction viz. Either the Kingdom or other places betwixt which Competitions are Stated remain the same that they were in their Substantials and then the former Precedency is still continued as for instance Though Rome whilst it was a Common-wealth did sometimes admit of a Dictator who had indeed the power of a King yet they remained still the same Common-wealth and therefore being the same in substantials they ought to have the same Degree of Precedency continued Or when two or three Kingdoms are without any alteration United in one as the Kingdoms of Scotland and England were United into the Kingdom of Great Britain under Kings in the same Race who succeeded to both as is fully Demonstrated by Alb. Gentil pag. 82. and this is likewise clear from L. proponebatur ff de Iudiciis l. 24. ff de Legat. 1. But where there is a substantial alteration called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there the former Condition is not considered but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or present condition of the places in Competition is that which ought to be considered And thus when a Kingdom comes to be Conquer'd by a Stranger and by a Strange and Forreign Nation there the State of the Kingdom is absolutely Innovated especially if the Laws of the State be altered And therefore the French Lawyers are of Opinion that the Precedency of England ought onely to be Computed from William the Conquerour Because at that time a Stranger and a Strange Nation did conquer the said Kingdom and the Fundamental Laws of it were much Innovat and if this be not an Alteration none can be For the Antiquity of Land cannot give Precedency for all Land was Created together and there are few Nations so Conquest as that the former people do not remain so that there can be no Precedency upon that account though some who are extravagant in their Zeal for their Countrey doe Argue its Precedency from the first Ages of the World as Vasquius does that of the Spanish Empire in deryving it from Tubal Cain praefatio in Contravers Illust. QVESTION II. Whether a Kingdom becoming a Common-wealth or a Common-wealth a Kingdom does their former Precedency remain This Question has two Branches wherein the Difficulties differ The first is Whether that Town or Place which was a Republick having become a Monarchy or Principality ought it to Retain the Precedency due to the former Common-wealth And that it ought to Retain the same Precedency may be Argued Because when one thing is surrogat in the place of another that which is surrogat ought to have the same priviledge with that in whose place it is surrogat surrogatum subit naturam surrogati But so it is that the subsequent Principality is surrogat in place of the former Common-wealth and
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
by Leo the 3. of greater Authority amongst such as acknowledge the Pope to be no infallible Judge And whatever may be debated against other Kingdoms which were once Subject to the Roman Empyre Yet his Plea against Scotland is very ill founded since in the opinion of Scalliger and the best of Historians Scotland nor its Kings were never subject to the Roman Empyre nor conquered by them for they to defend themselves against the Scots were forced to build a Wall called Vallum Adriani which is Extant to this day as an undenyable Proof that Scotland did set Limits to the Roman Empyre And thus as Scalliger observes Romani Imperii fuit olim Scotia limes It is likewise pretended by the German Lawyers that the Emperour ought to precede all others because he is crowned with three Crowns one of Iron at Aquisgrane one of Silver at Milan and one of Gold at St. Peters Church Gloss. ad Clement 1. And since the King of the Romans who is but Emperour in hope debates with other Kings as in anno 1533. he who is actual Emperour ought to be preferred to them For the Emperour it is also pretended That in the Ottomon Court and in all other Courts the Emperours Ambassadors are still preferred and that he only is still styled your Majesty in all Adresses made to him by all other Kings as by France anno 1628. by Pole anno 1621. c. And that the Kings of Pole Sweden Denmark and others have taken Confirmations from him ab eo petierunt veniam aetatis Hering de fidejus c. 2. And yet the Kings of Britain and France may debate the precedency with him because the Empyre is but Elective whereas they are Hereditary the Empyre is a Limited but they have Absolute Monarchies vide Peregrin de jur fise tit 1. num 47. The French King debates his precedency with the King of Spain the Spaniard contending that he ought to be preferred because he is the most Catholick King and King of maniest Kingdoms and some of them are so foolish as to say That the Spainish Nation is more ancient than the French as owing their Origin to Athamaricus one of the first Governours amongst the Goths But for the French it is answered 1. That they are the most Christian Kings 2. That they are Consecrated and Anoynted 3. That Swardus was first King of that Nation in the Reign of Alexander the Great 4. That they were preferred in many General Councils to the Spaniards as in the Lateran Council anno 1215. in the Council of Constans anno 1416. and in the Council of Basil anno 1433. That the Venetians preferred the French after much Debate anno 1558. the Case being submitted by both to that Senate and Pius the IV. preferred him at Rome anno 1564. the King of Spain having appealed from the Venetian to him And though the Emperour has of late decided in favours of Spain yet that Decision is little considered because of the Relation which the Emperour has to the Spainish Crown And therefore the French King does very wisely send only Envoys and Residents to the Imperial Court lest if he sent Ambassadours the Spainiards might be preferred to his Nor was this Precedency ever acclaimed by the Spaniard till the Reign of Charles the V. who being both Emperour and King of Spain did begin this Debate which after many Contests the Spainiard has at last ceded having commanded his Ambassadour the Marquess de la Fuente to acknowledge the same to the most Christian King in Satisfaction of the Injury done to his Ambassadour in anno 1661. at London The King of Great Britain founds his Precedency to both upon 1. His being King of that Isle which was first Christian. 2. Upon his being Anointed and one of the quatuor Vncti which were before all other Kings 3. That having conquered France in the time of Henry the V. he has Right to all the Precedency which France can acclaim And to Spain the King of England was preferred in the General Councils of Pisa Constans and Basil. I find likewise in Golstad lib. 1. cap. 30. That Pope Iulius the II. decided after debate in favours of Henry the II. King of England against Ferdinand the V. Caspar Eup. thesaur polit part 3. apot 63. And therefore in the Book of Roman Ceremonies 1504. England was placed before Castil nor can it be denyed but that Charles the V. in ranking the Knights of the Golden Fleece did give the right hand to the King of England and the left to the King of Spain And though of late the Court of Rome has decided in favours of Spain yet that proceeds from the dislike that Rome had to England for its Separation and the great Esteem which dayly grows there for Spain because Spain has never indulged any who have left the Romish Church CHAP. II. Of the Precedency due to the Kings of SCOTLAND I Must here crave Leave to say That the King of Great Britain may justly claim the Precedency from all those Kings as he is properly King of Scotland For it is an uncontroverted Ground in Law That amongst those of equal Dignity he who first attained to that Dignity is to be preferred L. 1. C. de Consul Quis enim prior esse debet in eodem genere Dignitatis nisi qui prior eum adeptus est L. 1. ff de albo scribendo With which agrees the Canon Law Cap. 1. de major ob And this is declared the uncontraverted Test of Precedency by Crus de jur preced pag. 66. Menoch concil 51. Cuj ad L. 2. C. de Consul And we see that this Rule holds in all other Dignities without respect to Riches or multitude of Possessions And thus amongst Dukes or Earles in all Nations the first who attained to the Dignity is still preferred though others be much richer and have suceeded to moe Earldoms This being then the true and solid Ground of Preference I may truly subsume That the King of Scotland being equall in Dignity with the Kings of England France and Spain attained to that Dignity before either of these For our King Fergus came into Scotland 330. years before the birth of CHRIST Whereas Polydor an English Historian confesses that Egbert the first King of England did begin his Reign eight hundred years after our Saviours birth and the King of Scotland marryed the daughter of Ambrosius Aurelius who was the first King of the Britans and whose Reign preceeded the Origin of the English Kingdom As to the Monarchy of Spain and their Race of Kings they are no older than Rudolphus King of the Romans elected in the year 1273. by whom the house of Austria did rise to this Dignity As to the Kings of France who now Reign they are only descended from Hugh Capet who usurped that Throne in anno 987. And not being descended of either the Carolovingian or Merovingian Races they cannot compet with our Kings Achaius King of Scotland
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