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
V. The Precedencies amongst Common-Wealths IT cannot be denyed but that Kings and Crowned-heads have the Precedency from Common-wealths though they contend that they being the Freest of all men are the Noblest And being in Effect a Countrey of Kings ought to be preferred to any one King Especially since their Government is elder then that of Kings men having drawn themselves into Societies before they either submitted to Kings who assum'd that Government by Force or Elected Kings because they could not agree amongst themselves There are some Common-wealths who claim precedency as having right to Kingdoms And thus Venice claim'd the same precedency with Crown'd-heads in the Popedom of Vrban the eight and Innocent the fifth because they had right to the Kingdom of Corsica But this was denyed Genoa contended with Venice for precedency at the Coronation of the King of Cyprus 1373. but that King preferred Venice And to extinguish these Differences amongst the Common-wealths of Italy Venice is by opinion of all Lawyers preferred to all the Common-wealths of Italy Calefat de Equestr dignit n. 124. Crus de preced pag. 536. Genoa and Sienna did also contend anno 1530. at the Coronation of Charles the fifth but the Debate was then decided And yet Crus pag. 545. prefers Genoa The States General contend with Venice and all other Common-wealths as being the more powerful and being a Society of Common-wealths They pretend also to Precedency from all the Princes of the Empire as being more Independent then they and being equal to Kings Whereas these Princes are but Subjects which is delicately Debated by Besold de praeced cap. 2. But yet the present Emperour has preferred the Electors to all Ambassadours of Common-wealths by an express Ordinance related in Crus p. 545. And now Holland as having a kindness for the Empire Treats the Ambassadours of the Electors as those sent by Crowned-heads And in return of that Kindness the Electors Treat such as are sent from Holland with the same Respect Memor Ambassad pag. 523. Of old the Duke of Savoy did preceed the Common-wealth of Venice But Emanuel Philbert Duke of Savoy during the Oppression he lay under from Charles the fifth put himself under the protection of Venice and became a Son of St. Mark And thereafter as the Father behov'd to preceed the Son the Dukes of Savoy yeelded to Venice And as that Duke pretends Right to the Crown of Cyprus by the Marriage of Anne of Cyprus and the Donation of Charlot of Cyprus So Venice pretends Right to the same Crown by the Donation of Catharine Cornara Widow to Iames King of Cyprus The Difference is now thus settled That Venice shall Treat the Ambassadours of Savoy as they do these of Kings with the title of Excellency And Savoy shall allow Venice the Precedency Memor Ambassad pag. 347. Mazarin treated the Ambassadours of the Common-wealth of England as those sent from Kings Mem. Ambassad pag. 334. The Cantons of Swisse were even of late a part of the Empire But by the Treaty betwixt the Empire and the King of Swed 1648. they are declared Free States Et in possessione seu quasi possessione libertatis exemptionis ab Imperio And now their Ambassadours or Envoys take place after the Venetian and States General And albeit Nolden de Stat. Nobil Thinks that if they were called to fit with the States of the Empire upon any extraordinar Occasion they were not to be preferred to the Princes of the Empire and much less to the Electors For licet jura Principum habent passive materialiter Principes tamen non sunt formaliter active Yet other Lawyers prefer them to all the other States and Princes of the Empire except the Electors Crus pag. 556. The French King treats them with the title of Magnifiques Seigneurs And though their Deputies could not prevail with the French King in anno 1602. and 1603. to be covered when he received them Yet I conceive that now they will be received as the Ambassadours of Holland or Venice who are covered at their Reception since in anno 1646. they are acknowledged to be a Free State The Grison Ambassadours were received in anno 1627. as the Ministers sent by the Princes of the Empire and with the same Honours CHAP VI. Of the Precedency of the Electors and the Princes of the Empire AMongst the Princes of the Empire the Electors are still preferred Which Electoral Colledge though said to be Founded by the Emperour Otho the third and Pope Gregory the fifth anno 997 yet it is more probable that the said Constitution arose from the great Difficulties under which the Empyre was Sunk after the Death of Frederick the second Amongst the Electors the Ecclesiasticks are preferred to the Laicks The Ecclesiastick Electors are the Arch-bishops of Mentz Cullen and Treves whose Precedency amongst themselves was first Determined by Charles the fourth So as that the Bishop of Treves was to sit just over against the Emperour The Bishop of Mentz was to take place in all his own Dyocie and in all Germany Whereas the Arch-bishop of Cullen was to take place in all his own Dyocie and in Italy and France And of old in the Election of the Emperour the Bishop of Mentz was preferred as Arch-chancellor of Germany The Arch-bishop of Treves as Arch-Chancellour of France And the Arch-bishop of Cullen as Arch-chancellour of Italy Which Order was confirmed by Frederick the 1. anno 1158. The Secular Electors are Ranked thus by the Golden-bull of Charles the fourth The Duke of Saxony carries the Sword immediately in all Processions before the Emperour The Count-Palatin the Imperial Aple walking on the Emperours Right hand The Marquess of Brandenburg the Scepter on the Left hand And the King of Bohemia was to follow him immediately But when they sit at any Solemnity by the same Bull The King of Bohemia being a Crowned-head was to sit first upon the Emperours Right hand after the King of the Romans and the Arch-bishops of Mentz and Cullen And upon the Left after the Ecclesiastick Electors the Duke of Saxony had the first place and the Marquess of Brandenburg the second But yet I find Beutherus and other German Lawyers contend from old Manuscripts That at first Brandenburg had the Precedency from the Electors Palatin and Saxony The Duke of Bavaria did of old Contend with the Duke of Saxony in anno 1521. and their Debates continued by protestations for many years And with the Elector Palatin till the Emperour Lewis the fourth Ordained the Palatin and Bavaria to preceed one another alternately Though since the late Waries of Germany the Elector Palatin having Usurped the Crown of Bohemia the Duke of Bavaria was made the first Elector in his place the Elector Palatin being now the last of the Electors It is also observable That if any of the Electors themselves be present they are preferred to the Ambassadours and Representatives of all the absent Electors as was Decided in anno
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 their respective Robes and Crowns on their Heads Coming before the King they made their Reverence Then they were led up by the Master of Ceremonies some steps and sitting down on their Knees on Velvet Cushions the Lyon made an Harrangue both to His Majesty and to them Declaring to the Noblemen That it pleased His Majesty to promote them to that Dignity and that he desired them to Fear GOD and obey His Power Then he took their Oaths that they should obey GOD his Majesty and mantain the Religion then profest Thereafter the Lyon delivered to His Majesty the Patents and His Majesty redelivered them to the Lyon who gave them to the Noblemen In token that they should obey GOD and His Majesties Laws Afterwards the Lyon delivered His Majesty the Marquesses Coronets His Majesty redelivered them to the Lyon The Lyon put the Crowns on their Heads saying Iohn Marquess of Hamilton Earl of Arran Lord Even c. George Marquess of Huntly Earl of Enzie Lord Gordon and Badzenoch c. The same was Proclaimed furth of the windows by the Heraulds and Pursivants with sound of Trumpet Then were they conveyed to their Seats and placed above the Earles upon the Kings left Hand Trumpets sounding The Lyon desired His Majesty to Honour the Gentlemen who bare the Honours with the Honour of Knight-hood His Majesty consented The Lyon caused them sit down on their Knees at the foot of all the Stage and after he had made an Exhortation to them and received all their Oaths they holding up their Hands and promising to obey all the Injunctions The Lyon presented the Sword to His Majesty who stroke each of them therewith on the Right shoulder and Sir offered the Spur the Lyon first proclaiming their Styls and after the Heraulds and Pursivants at the windows with sound of Trumpet I find this Difference in the Creation of many Earles from what is here set down That the four Gentlemen bear the Honours thus The first the Penon the second the Standart the third Sword and Belt the fourth the Crown and lastly the Lyon bear the Patent in a Velvet bag And that the Lyon offered first to His Majesty the Sword and Belt and receiving it back put it on the Person Nobilitat As also when the King was not present and after His going to England The Ceremony was performed be His Majesties High Commissioner if there was one at the time Or otherwise a Writ was direct to the Lord Chancellor appointing him Commissioner for that Creation And then the first thing that was done after the person to be Created was brought in the Lyon gave the Patent to the Commissioner who gave it to the Register or Clerk of Council to be read And I Observe this in all Our old Creations that if the person to be Dignified was a Lord formerly he was conveyed in be two Lords and the Ceremony of the new Creation being over was conveyed to his place by two of that degree to which he was advanced The English Nobility are sometimes Created by being called in a Write to Parliament under the Designations of Earles Viscounts c. Which way is unknown to Us in Scotland though the King may introduce it at His pleasure The Precedency amongst Subjects is thus Established in both Kingdoms Dukes of the Blood Royal Other Dukes according to their Creation The Eldest Sons of Dukes of the Blood Royal Marquesses according to their Creation Dukes Eldest Sons Earles according to their Creation Marquesses Eldest Sons Dukes Younger Sons Viscounts according to their Creation Earles Eldest Sons Marquesses Younger Sons Barrons whom We call Lords Viscounts Eldest Sons Earles Younger Sons Barrons Eldest Sons Barronets Viscounts Younger Sons But the Officers in England are by Act of Parliament Henry the 8. thus Ranked Lord Chancellour Lord Thesaurer The Lord President of the Privy Council The Lord Privy Seal These four being of the Degree of a Barron or above shall sit in Parliament and all Assemblies of Council above Dukes not being of the Blood Royal. The Lord Great Chamberlain The Lord High Constable of England The Earl Marishal of England The Lord Admiral of England The Lord Great Master or Steward of the House The Lord Chamberlain of the Houshold These last Six and the Kings principle Secretary take place according to their present State So that if they be Barrons they take place above all Barrons If Earles above all Earles If Dukes above all Dukes By a Decree and Establishment under the Great Seal of England 1 o. Iacobi the following persons are thus Ranked Knights of the Garter Knights of the Privy Council The Master of the Wards and Liveries The Lord Chancellor and Under-Thesaurer of the Exchequer The Chancellor of the Dutchy The Chief Justice of the Kings Bench The Master of the Rolls The Chief Justice of the common Pleas The Chief Barron of the Exchequer The other Judges and Barrons of the degree of the Coif The Younger Sons of Viscounts The Younger Sons of Barrons The Barronets The Precedency amongst Our Nobility differs nothing from what is here set down England and We agreeing in all points since the Union of the two Kingdoms And especially since the Coronation of King Charles the first at which time he Declared he would have it so But to prevent Differences betwixt the Nobility of both Kingdoms It was Ordered That all those of the same Degree in England should in England take place from all those of the same Degree in Scotland And all those of the same Degree in Scotland should in Scotland take place of the English That is to say All the English Dukes should take place in England of all the Scots Dukes And all the Scottish Dukes in Scotland should take place of all the English Dukes which was very Just and Suetable to the Laws of Nations But as to the Ranking of Our Officers We Differ much from England For clearing whereof it is fit to know That with Us there were Officers of the Crown and Officers of State The Officers of the Crown were all Designed of Scotland as Constabularius Scotiae c. In King Malcom the II. his Parliament The Offices then Extant were The Chancellour the Justice General the Chamberlain the Steward the Constable and Marishal and they are thus Ranked and have their Respective Fees But by the Act 31. Parl. 11. Ia. 6. The Offices of the Crown are Declared to be The Thesaurer Secretar the Collector which Office is now joyned with the Thesaurers the Justice General Justice Clerk Advocat Master of Requests Clerk of Register And though these be called Officers of the Crown there I conceive they Differ not from the Officers of State And these words Officers of the Crown and Officers of State are now Equipollent Terms so far that all the Officers of State are Officers of the Crown by this Act But the High Chamberlain Constable Admiral and Marishal are Officers of the Crown but are not Officers of State
the nature of those Certifications they ought to take place every where except where express Law or Decisions have restricted them And therefore since there is no Law nor Decision Declaring that Certificationss shall not be granted against Patens or Infeftments which transmit Honour they ought to be granted against these aswell as against other rights Nor is it craved that these Certifications should run against Honours transmitted via facti such as Robing and Belting and though the Pursuer be not designed by his Infeftments the first Earl yet that cannot hinder him from removing by this Certification all Writes or Evidents which may hinder him to be the first Upon which Debate the Lords refused to grant Certification against such Patents or Infeftments Courses taken by Princes and Iudges when they intend to shun the decyding of Contraversies concerning Precedency and to preserve the Rights of all the Competitors First They ordain the Competitors to preceed one another by turns and alternatively And thus the Emperour Lewis the fourth did in anno 1328. decide betwixt the Prince Palatine and the Duke of Bavaria and so the Parliament of Paris decided in anno 1616 but lest the first turn should give the Precedency that uses to be decided by lot And I find this alternation very old for the Thebans did so decide betwixt the Brother-Kings Etheocles and Polinix and Plutarch observes the same betwixt Thyestes and Attreus Secondly They use to assigne one of the Competitors a place out of all Rank as was done to the Spanish Ambassadour in the Council of Trent and is frequently done in Our Parliaments But though this preserves the Right it insinuates a Ceding And therefore the juster way is to place both so without the Benches as that neither of their seats can shew any Preference as was done at the Council of Trent betwixt the Emperours Ambassadour and the Cardinal of Trent Thirdly They use to cause them enter by several doors as was observed betwixt the Queen of France and Margaret sister to Charles the fifth as Guicciardin observes Fourthly They use round tables or to write the names of the Pretenders in a circle an example whereof we have in Gaius lib. 1. Institut and Pope Vrbane having desired the Franciscans to give him three of their number out of which he might chuse one to be Cardinal they wrote down their three names circular-ways but in this case the names should be written down exactly in the midle of the table or paper for else as Crantzius observes he whose name is next to the top of the paper has thereby some Precedency Fifthly The eldest of the Competitors is still ordained to preceed Of which Livius gives an instance lib. 42. and King Iames the sixth decided so between several Families in Scotland and particularly between the Lairds of Blair and Balthaok Sixthly Sometimes he who was first promoted to a Benefice or Office is preferred where the difference is betwixt the Offices or Benefices and thus it was decided betwixt the Sees of Rheims and Treves Sevently Sometimes also the Competitors are preferred according as they produce their Commissions as was done in the Council of Trent betwixt the Ambassadours of Portugal and Hungary and the Polonians do frequently in Competitions between Ambassadours prefer him who first enters their Territories Bodin de Repub. lib. 1. cap. 9. Eightly Sometimes also the Competitors are ordained to give their suffrage and preceed according to the respect due to the Nations and not to the persons as was decided in the Council of Constans and Basil. Ninthly It is observed that Octavius Farnesius Prince of Parma and Placentia to shun the difference of Precedency betwixt his two Towns of Parma and Placentia did write himself Duke of P. P. And King Iames the sixth to shun any debate that could have been between Scotland and England assumed the title of King of Great Britain Tenthly Some use to secure themselves against such contests by Protestations which certainly do interrupt prescription and preserve the Protesters right L. 14. § 8. ff de Relig. but in that case the protestation must be presently interposed for protestations after the deeds contraverted are ended and past are concluded to be of no value Carpzol def 22. for protestations cannot be drawn back But it has been doubted whether the person against whom the protestation is taken does prejudge himself when he does not protest in the contrar for this seems to infer an acquiescence that the protestation is just since qui tacet consentire videtur and this is the occasion why in our Judicatures when one protests the other ordinarly protests in the contrare But yet it is generally concluded that Silence in that case does not prejudge him against whom the protestation is taken since he knows that in Law the protestation secures his right Tusc. tom 6. Conclus 941. FINIS
had all the Priviledges of Subjects communicated to them without being Vassals or Subjects And thus the Pelopidae were naturalized Persians by Artaxerxes King of the Persians and allowed to enjoy all their Priviledges in remuneration of the great Services done by them to the Persians as Plutarch observes in the Life of Pelopidas And thus the Athenians communicated their Priviledges to the Rhodians and the Latins to the Romans as Livius observes lib. 25. And it is very clear that the like was done by the English to us by a Statute of St. Edward which is yet extant in a Book called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 published by William Lambert anno 1568. And Ratified by the Conquerour amongst the good Laws of that Prince as Hollenshed observes Amongst others who are to be reputed of the same Nation with the English we find the Scots mentioned in the Statute for which two Reasons are given in it quia omnés ferme Scoti proceres ex Anglis conjuges coeperunt ipsi rursus ex Scotis sic sacti sunt duo in carne una That is to say Because most of all the Scotish Nobility did take Wives of English Extraction and the English of Scotish The second Reason added in that Statute is quia simul in unum contra Danos Norwegos atrocissime pugnaverunt And it is very well known to such as understand History that untill these late and unhappy Wars occasioned by the Shires of Northumberland Westmorland and Cumberland the Scots assisted the English in all their Wars especially as that Statute sayes against the Danes and Norwegians by whom they were called by those Invaders to share in the Victory but they refused the offer and fought near two hundred Years against these Usurpers In which Wars they are said to have lost two Kings with an hundred thousand Men all which the Scots might have preveened by suffering the Danes to pass peaceably to England through their Territories And it is observable in the Histories of both Nations that the Danes were never expulsed from England till they were first beat in Scotland till at last they were forced to swear that they should never return into this Isle and in Return of which Assistance we got from England this Priviledge in the same manner that Lewis the XII communicated to us a general Naturalization in France with all the Priviledges competent to the Natives of that Kingdom when we were forced to associat with it to secure our selves against the invasions of our old friends CHAP. IV. The Debates betwixt the Kings of Pole Sweden Denmark c. and other Princes THe King of Sweden pretends to Precedencie from the other two and Nolden in his Treatise of Nobilitie chap. 9. num 107. leaves the Precedencie betwixt Sweden and Denmark to be dubious And though some prefer the Dane as a Member of the Empyre grafted therein in anno 1542. Yet others think him upon that account the less preferable because he is thereby in a manner no free and Soveraign Prince Peter King of Denmark having really become Vassal to Fredericus 1. Emperour Otto Fris. lib. 2. cap. 21. But Pontanus relates that the Emperour did upon this account give him the right hand and thereby preferred him to Sweden I find also in the Council of Basil that Ravallus Arch-bishop of Vpsale did claim Precedencie to his Master the King of Sweden from all the Christian Princes he being the true Successour of the Gothish Kings who exacted Tribute even from the Emperours and Kings of France Both Denmark and Sweden claim the Precedencie from the King of Pole as an Elective and Limited Monarch And in the Ceremonial of Rome Pole is placed after the other two And it is undenyable that Sigismund King of Swed being chosen King of Pole he did in all his papers prefer always the Title of Sweden to that of Pole The King of Pole has debated for Precedency with the King of Portugal in anno 1557. But at Rome Pope Iulius the second preferred Portugal And yet the Debate was renewed under Charles the fifth In whose Reign both their Ambassadours meeting in his Court at Church and the Ambassadour of Portugal having possest the first place the other made a sign as if he would have spoken in private with him at which the Portugal rose whereupon the Polonian run in to his seat Hottoman de Legat. lib. 3. cap. 21. The King of Hungarie contests for Precedency with the King of Pole But in the interview betwixt Maximilian the Emperour Sigismund King of Pole Vladislaus King of Hungarie and Lodowick King of Bohemia in anno 1515. the King of Pole was preferred to walk on the Emperours right hand But this Controversie being renewed at the Council of Trent They as all other Kings were ordained to take place not according to their Dignities but according to the date of the Production of their Commissions in the Council The King of Hungarie argues for the Precedency from the King of Bohemia Because amongst the Emperours Titles Hungarie is set down before Bohemia But Bohemia oppons the Golden-bull of Charles the fourth Emperour Wherein it is ordained that in all Acts which concern the Empire Bohemia shall proceed all other Kings So that it seems that the King of Hungarie ought to preceed in all things not relating to the Empire But that Bohemia is to preceed in all that relates thereto There are other Soveraigns who are not Crowned-heads Such as Savoy Mantua Florence Ferara Parma Venice who Debate also their respective Precedencies in this manner The Duke of Savoy is by Pius the fifth Declared to be the first Prince of Italy And in the Chappels of France Venice c. gets the first Sâ—â—l And as King of Cyprus pretends to be ranked amongst the Crowned-heads But it may be admir'd why the Duke of Savoy takes the Title of Royal Highness For if he be King of Cyprus he ought to have the Title of Majesty and if he be not King Royal Highness is not due to him And the Duke of Mantua did contend with him though his Competition was not sustained vid. Crus pag. 511. And though the Title of Eminencie was bestowed upon the Dutchess of Mantua by Ferdinand the second Yet that was a Complement bestowed by the Emperour rather with respect to her Sex and her Relation to the Imperial Family then to the true Dignity due to her as Dutchess of Mantua vid. Limneum Iur. pub lib. 5. cap. 14. The Duke of Florence was still preferred to the Duke of Ferara by Charles the fifth And Port. lib. 4. Resp. Juris 167. confesses That Florence was acknowledged to be first by the Emperour by Rome and by France But yet Paul the third considering that the Dutchie of Florence was onely erected in anno 1531. Whereas the Family of Est were raised to be Dukes by Paul the third 1452. and were declared Dukes of Ferara by the Emperour 1454. did therefore prefer Ferara to Florence CHAP.
the first two Races Because according to the old German Custom the Few and Honours were devided equally amongst the Sons As now all the Sons of a Duke are Dukes there c. But thereafter all the other Children except the Eldest got onely place and Precedency according to their Offices or Dignities until Philip de Valois Succeeded as Prince of the Blood in a remot Degree After which the French thought fit to give Precedency to those who might one day be their King And so all the Princes of the Blood got precedency from all Subjects With Us the Kings Children Uncles and Nephews onely had precedency from all Subjects And in SCOTLAND no remoter Degree preceed as Princes of the Blood For the Families of Hamiltoun Kinghorne Fintrie and others are Descended from Our Kings by lawful Marriages but had no precedency upon that account The first place next to the King is due to the Prince of SCOTLAND amongst Us who is likewise Duke of Rothesay as the second Son is Earle of Ross that being an Appanage inseparable from him by Act of Parliament But at present his Royal Highness is with Us Duke of Albany as he is Duke of York in England It has been doubted Whether the Kings Son Uncle Nephew c. have the Precedency from the Kings Officers in the actual exercise of their Office as at Coronations Riding of Parliaments in which it is the Constables priviledge to ride upon the Kings Right hand and the Marishals on his Left in his return from the Parliament house The Reason of which Difficulty is because these are Acts which follow the office and not Blood and the Nature of the Action requires that they should be posted where they may be most serviceable I find likewise that this hath been Debated in France whereupon in anno 1576. Henry the third emitted an Ordinance in Favours of the Princes of the Blood And with Us his Royal Highness the Duke of York at His Majesties Coronation preceeded all the Officers Amongst the Princes of the Blood the Last descended from the Royal Family has still Precedency accordingly But though this hold in the Branches yet the Eldest of the same Branch will preceed all of that Branch and thus the Prince Palatins Grand-Child would succeed to the Crown before Prince Rupert his Brother though Prince Rupert be several Degrees nearer I find that of old all Church-men were Ranked together and were first Ranked before all Laicks And thus the Parliament of King Robert the first was habito Solemni tractatu cum Episcopis Abbatibus Prioribus Comitibus and even before the Kings Sons Brothers or Nephews Thus King Robert the first grants a Charter to the Abbacy of Aberbrothick Confirming a Ratification made to them be Lundie wherein the Witnesses are Reverendis Waltero Gilberto Episcopis c. Davide Duce de Rothesay Comite de Carrick Carissimo nostro Filio primigenito Roberto Duce de Albania Comite Fyffe Fratre nostro And even the Abbots and Priors were Ranked before them and when any of them were Officers of State they were named according to their Ecclesiastick preferments Thus Iacobo Sancti Andreae Episcopo Galvino Archiepiscopo Glaseuensi Cancellario nostro And in the Session when it consisted of half Church-men half Laicks the Church-men sat on the Chancellors Right hand and Voted first But it does not follow from these Instances that therefore of old any Church-man did take place from the Kings Son no more then that a Bishop took then place of an Earl because he was named before them The Archbishop of St. Andrews was by a special Letter in anno 1626. and Renewed in Ianuary 1664. Declared to have the Precedency from the Chancellor and all His Majesties Subjects In time of Popery he was Legatus natus and both then and now he is totius Scotiae Primas But though by this Letter he is Ordained to take the place of all Subjects yet I think it would not give him place from the Kings Sons Uncles and Nephews though they be likewise Subjects since the word Subjects must be here Interpret according to the Custom of Nations by which these near Relations of Princes are preferred to all other Subjects The Nobility of Scotland were either Declared such by Feudal Erections their Lands being Erected by the King in a Dutchy Earldom c. which did of it self make him a Duke or Earl in whose Favours the Lands were so Erected Or else they got Patents of Honour Declaring them Dukes Earles c. and this is a much later way none being Nobilitated by Patents amongst Us before King Iames the first The third way of Nobilitating with Us is by Creation and Solemn Investiture the whole Form whereof will in all its Ceremonies be best known by the following Narration The Form of the Creation of the Marquess of Hamilton and Marquess of Huntly tuesday the 17 of April 1599. IN His Majesties great Chamber in the Abbay of Holy-rood-house where the like Ceremony was wont to be done being richly hung with Tapistry five Stages or Degrees of Timber were Erected One for His Maiesty on the West-side whereon His Majesties Chair of State was set under the pale of Honour One for the Duke One for the Earles One for the Lords and one for the Knights There was also before the Throne a Table covered with cloath of Gold whereon was laid the Sword Scepter and Crown the Noblemen attending the Ceremony in their respective Seats in their Robes and His Majestie in His Rob-Royal being placed in His Chair The Queen sitting by The Lyon King of Arms and Master of Ceremonies With the Heraulds and Pursivants in their Coats and Trumpets sounding brought in before His Majesty these two Noblemen viz. The Earles of Arran and Huntly the first conveyed be the Duke of Lennox and Earl of Mar the second be the Chancellor and Earl of Caithnes Thereafter the Lyon asked His Majesty If His Majesty would be pleased to promote these Noblemen to further Honours His Majesty answered Yes Then the Lyon Master of Ceremonies with Heraulds Pursivants and Trumpets Conveyed them into the Green Council-chamber where they were Devested of their Comital Robes and Vested in the habit of a Marquess And so were again conveyed to His Majesties presence thus The Ordinary Macers that attend the Chancellor and Session making place Master of Ceremonies Trumpets sounding with the Noblemens Colours at their Trumpets Pursivants in their Coats Heraulds in their Coats Four Gentlemen for each of the Persons to be Created bearing their Honours viz. For my Lord Arran Robert Hamilton of Goslington the Penon Alexander Hamilton of Fenton the Banner Claud Hamilton of Shawfield the Marquess Crown Iohn Campbel of Ardkinlas the Patent For my Lord Huntly Iohn Ogilvy of the Craig the Penon Iohn Crichton of Frendraught the Banner Mark Ker of Ormistoun the Crown Alexander Gordon of Strathdon the Patent Lyon King of Arms. The two Earles conveyed be the forenamed Noblemen
Senescallus Domini Regis is next in these Laws that is to say The High Steward of Scotland and Allanus Senescallus Scotiae is very Famous in all the old Charters and he is still placed before the Constable and Marischal And it appears that the High Steward and the Steward of the Kings House were the same for those Laws mention only the Steward of the Kings House but now the Prince is Senescallus natus Scotiae Under him are there placed the Panetarius who commands over all the Bakers and Buttelarius who commands over all the Keepers of Taverns c. I find the Lord Souls was Buttelarius Scotiae in the Letter before set down Directed from the Nobility of Scotland to the Pope in the Reign of King Robert the Bruce And I have seen a Charter wherein Iohn and Thomas Murrayes sons to the Governour of Scotland Sir Andrew Murray were designed Panetarii Scotiae upon the Forfeiture of Iohn Cunning Earl of Monteith in anno 1348. which Earl of Monteith was formerly Panetarius Next to these are named in the foresaid Laws the Constable and Marischal But now the Constable and Marischal take not place as Officers of the Crown but according to their creation as Earls The Reason whereof I conceive to be because of old Offices did not prefer those who possessed them but they took place according to their Creation whereas now the Privy-Seal precedes all Dukes and the Secretary takes place before all of his own Rank But the Constable and Marischal being now the onely two Officers of the Crown that are Heretable in Scotland continue to possess as they did formerly But in France England and all other places the Constable and Marischal take place as Officers of the Crown and it seems very strange that these who Ride upon the Kings right and left Hand when he returns from His Parliaments and who guard the Parliament it self and the Honours should have no Precedency by their Offices And yet I cannot deny but that of old other Earls were placed before them for in the former Charter granted by King Alexander Malcolm Earl of Fife is placed before them And I conceive their Precedency has not risen of late to the same proportion with others Because of late Our Armies have been commanded by other Officers and so there was little use for the Constable and Marischal The Constable with Us in these Northern-Nations is the same Office that the Comes Stabuli was under the Roman Empire which may be confirmed by two clear Testimonies of great Antiquity one is of Aimon lib. 3. cap. 7. Land gesilis Regalium praepositus equorum quem vulgo Comes Stabuli vocant The other is from Rhegino lib. 2. Annalium Burchardum Comitem Stabuli sui quem corrupte Constabulum appellabis cum classe misit in Corsicam Though the Learned Cujac does believe that this Title comes from the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies a company of Men of War ad l. unic de Comit. Tribun Scolar And there are some who derive it from the word Koning which signifies a King and Staple which signifies a Hold because some Constables were Commanders of the Kings Houses But I find that the High Constable did command the Kings Armies but was expresly debarred from commanding either His Houses or Garrisons as L'oiseau well observes lib. 4. cap. 2. Because says he It was a great power that one man should command both the Army and the Garrisons The Badge of his Office was and is a naked Sword which in the Roman Empire was the Badge of the Office Praefecti Praetorio and Trajan giving the naked Sword to Suro Licinius who was his Praefectus Praetorio gave it with these words Pro me si mereor in me Which words were thereafter put by Buchanan with a naked Sword upon the Money Coined during the Minority of King Iames the sixth The Constable with Us was by the Laws of King Malcolm cap. 6. Judge to all Crimes committed within twelve Miles to the Kings House or Habitation Though Skeen observes that the best Manuscripts bear only two Leagues But now his Jurisdiction is only exercised either as to Crimes or otherwise during the time of Parliament which some extend likewise to all general Conventions The Marischal is a German word and Office originally as the Learned Tillet proves fully a Marker of Camps and the Ax which he bears as the Badge of his Office was that Instrument wherewith he did break the Ground though now this part of his Office is delegated to the Marischal du Camp The Marischal commanded the Horse as Tillet proves whereas the Constable commanded both But yet our Learned Craig calls the Constable onely Praefectus Equitum And yet as Tillet observes the Marischal was not under the Constable else he could not be an Officer of the Crown For it is essential to all Officers of the Crown and Officers of State to depend upon none but the King Of old I find the Orders in Military cases run to Our Constable and Marischal The Office of Marischal has never been out of the Family of Keith But the Earls of Athol and several others have been Constables of Scotland And therefore it is that the Earl Marischal hath no other Title But the High Constable designs himself Earl of Errol We had no Knight Marischal in Scotland till King Charles the Firsts Coronation in anno 1633. at which time it was Erected by a Letter to the Privy Council by his Office he is to take place immediately after the younger Sons of Lords The Thesaurer is not mentioned amongst these Officers of the Crown under King Malcolm Keanmore and of old it has been thought but an Office of the Kings House For in a Confirmation granted to the Abbacy of Aberbrothick in anno 1529. by King Iames the fifth after Reverendissimis Episcopis and dilectis consanguineis are enumerate as Witnesses dilectis Familiaribus nostris Roberto Barton nostro Thesaurario Computorum nostrorum Rotulatore Nor do I find a Thesaurer designed as Witness in any of the Kings Charters till then though some foolishly think that Panetarius was Thesaurer And though the word Familiar Counsellour be now given to all Officers of State who are not Earls because they cannot be called Cousins Yet of old it was only given to those of the Kings own Family and was derived à Familia though now Familiar is thought to be the same with Intimate Till of late Thesaurer Comptroller and Collector of the Augmentations were three different Offices but now they are all joyned in one Comptroller is in the old Registers called Rotulator The Thesaurer takes now place as second Officer of State next to the Chancellor Next to the Thesaurer is the President of the Privy-Council After him the Privy-Seal but the Secetary is only first of his own Rank that is if a Duke the first Duke c. Of old the Secretary was a very Honourable Imployment For as
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
does the Son possess this Title by his Father but by his Family And Lawyers have resolved that Filius retinet Nobilitatem etiam repudiata haereditate Bart. in L. Iurisjur § 1. ff de Oper. lib. Iac. in L. si non sortem ff de condict in debit But yet this decision may seem unsuteable to the Analogy and Principles of Law For 1 o. Since Honour is by the first Patent and Erection granted to a man and his Heirs It seems Just and Legal that none can enjoy the same but such as are Heirs so that this seems to be a qualified Right granted by the King and consequently can be enjoyed by none but such as Purge and Purifie the qualities and are Heirs 2 o. We see that in other Rights granted to a man and his Heirs no Successor can have Right without being Heir and since this holds in Accessions of the meanest Nature Why should it not much rather hold in Titles and Dignities which are things of great importance 3 o. We have no way nor method to know who is Heir but by an Inquest after which he who is served Heir is lyable to all Debts and if he who is to use the Title needs not be found Heir by an Inquest any man may use the Title of a Deceist Peer and if two contended for it this could not be tryed without an Inquest and Service 4 o. The making men lyable to their Predecessors Debts for using his Title would be very advantagious for the Defuncts Creditors and it is the Interest of the Common-wealth that Creditors should be payed nor could the apparent Heir complain since he may choose to use the Title or not as he pleases 5 o. It were advantagious to the Common-wealth that none had a Title but he who had the Estate which was given out with it and out of which it was to be mantained a Poor Nobility being a great burden upon a Common-wealth and a ruine to it And I find that the Parliament of England did Degrade George Nevil from being Duke of Bedford for want of an Estate suteable to his Dignity which Statut. 17. Ed. 4. expresses the inconveniencies here mentioned which are greater in Scotland than in England because Our Peers have more Interest in laying on Taxes than Lords in England have 6 o. The Law considers not in other cases whether the thing used by the apparent Heir may be advantagious to him Or whether he may pay Debt with it for the using of meer Ornaments which can yeeld no Money Or things of the meanest advantage do make him lyable yea and he would be lyable though he were a looser by the thing he used whereas not onely are Honours and Precedency things of great Advantage and which men would buy at any Rate But if a man have Liberty once to use the Title of his Predecessor it gives him a great Opportunity to inhance his Predecessors Estate by indirect means And the former Arguments prove onely that the Blood interest as to Honour is transmitted without a Service but not that the Feudal Title of Earl can be so transmitted QVESTION XII Whether does the Appearancy of Blood give Precedency where the Predecessor is not Dead This is called by the Doctours Spes expectantia successionis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and upon this account it is Debated Whether the Son of a King ought to be preferred to his Brother and all the Peers And generally whether the Nephew ought to be preferred to the Uncle who was his Fathers second Brother And I find it Recorded that Lycurgus did decide for himself against his Nephew being the Son of his eldest Brother But I would distinguish here thus First in the Families of Kings and Princes all the Kings Children are preferred to the Kings Brothers and all the Kings Brothers to the Kings Uncles and thus it was decided in France by Henry the third Rupanus pag. 508. But formerly the Uncles were preferred by the Constitution of Philip the Long anno 1316. And though in the Roman Empire before Alexius Comnenius the Emperours Son was still preferred to his Uncle Yet that Emperour desiring to put a Mark of Respect upon his own elder Brother preferred him to his Son and now the Sons of Princes are so farr preferred that not onely they but all the Princes of the Blood are preferred to all other Peers though they be last Created as was found by the Parliament of Paris anno 1541. betwixt the Dukes of Neveres and Monpensier 2 o. If in other Families the Brother be of a Dignity equal to his elder Brother then the Brother will be preferred to the Nephew as if the Brother be an Earl and the Nephew a Lord as being an Earles Son in this case Expectation will not prefer the Nephew because there are other actual Degrees of Preferrence 3 o. If the Uncle were a Lord by Creation and the Nephew a Lord by Birth in which case if the Uncle was a Lord before the Nephew was born the Uncle ought to be preferred as first in Time but not if the Nephew was first born and thus Baldus distinguishes ad L. ut intestato C. de su Leg. Hered 4 o. If neither the Nephew nor Uncle have any special Dignity then the Son of the elder Brother is to be preferred to the Uncle And this last case shews that the immediate hope of Succession or jus expectantiae is in it self a ground of Precedency and since a man and his apparent Heir are una eadem Persona in the Construction of Law and that in many things that are Disadvantagious to the Son he is look'd upon as Heir apparent in the same way as if his Father were dead it is therefore just that as he has the Disadvantages of an apparent Heir so he ought to have the Advantages of an apparent Heir And thus We see that Our Statutes having Declared Comprisings bought in by the apparent Heir to be Redeemable by the Defuncts Creditors It was found that a Comprising bought in by the eldest Son even whilst his Father lived was Redeemable from him and that he was an apparent Heir in the construction of Law And therefore since the Law puts him in the same case as if the Father were Dead he ought to have the same Precedency and consequently ought to be preferred to his Uncle to whom he would certainly be preferred if his Father were dead It is remarkable that in Scotland the Uncle was of old acknowledged to be King during not only the Pupillarity of his Pupil but during the Uncles own Natural Life which being an Invasion upon the Natural Right of Our Kings was abrogated under Kenith the third QVESTION XIII Whether should an elder Brother who was Born before the Father was Preferred to the Dignity of a King Marquess Earl c. be Preferred to a younger Brother who was Born after his Father had attained to either of these Dignities Lawyers have varied very much