they were formerly Quest. 2. Whether a Kingdom becoming a Common-wealth or a Common-wealth a Kingdom does their former Precedency remain Quest. 3. Whether he who is elected to a Dignity ought to have Precedency thereby as if he were actually admitted Quest. 4. Whether ought one who has been twice or oftener elected to any Dignity be preferred to him who was only once elected Quest. 5. What influence hath the conjunction of moe Dignities upon Precedency Quest. 6. How far do former Dignities influence a present Advancement and determine the Precedency depending thereupon and what Rank is due to honorary and extraordinary Offices Quest. 7. Whether amongst such as have equal Dignity the first in time ought to be preferred Quest. 8. When many are promoted at once in the same Writ or when many are nominate in the same Commission whether is the order of naming therein express'd to be observed Quest. 9. In what cases does Age prefer and what is its prerogative in the matters of Precedency Quest. 10. Whether does appearancy of Blood give Precedency before actual Investiture and Possession Quest. 11. Whether does the apparent Heir his assuming and using the Title and Precedency of his Predecessor make him lyable to his Predecessor's Debts and infer a passive Title against him as we speak Quest. 12. Whether does the appearancy of Blood give Precedency where the Predecessor is not dead Quest. 13. 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 Quest. 14. Whether ought a Son who is in publick Imployment and dignified to precede a Father who is not Quest. 15. Whether may he who has the survivance of an Imployment challenge any Precedency upon that account Quest. 16. 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 Quest. 17. Whether if the elder brother be mad or dumb c. does the second brother get the same Precedency as if his brother were dead Quest. 18. Which of two or moe Twins ought to precede when it is controverted which of them was first born Quest. 19 Whether do Natural Children born before a lawful Marriage precede and should they be preferred to the Children born in a lawful Marriage if they be legittimated thereafter Quest. 20 Whether ought the order of the nomination to be observed in Commissions where the Persons are ranked otherwise then can be consistent with the King 's former express Grants Quest. 21. In the competition betwixt two who are advanced at the same time but in different Writs as if two Patents were subscribed by his Majesty to two several Earls on the same day which of the two were to be preferred Quest. 22. Whether is Precedency to be ruled according to the date of the provision Investiture or actual Possession Quest. 23. Whether does the dignity of him who bestows the Honour regulate the Precedency that is bestowed among Equals Quest. 24. Whether can a Prince nobilitate any of his own Subjects in the Territories of another Prince Quest. 25. Whether when the President of any Court or Incorporation is absent may the eldest Member convocate the Incorporation and who ought to precede in that case Quest. 26. Whether may a Peer be degraded because he hath not an Estate sufficient to entertain a person of his Quality and by whom may he be degraded Quest. 27. Whether is a Patent never made use of by the Father valid after his death Quest. 28. Whether if the Father use any low or base Trade which derogates from Nobility will his Children and Descendents lose it thereby Quest. 29. One having resigned a Dignity or Imployment and returning thereafter thereto whether does he who has so resigned return to his former Precedency Quest. 30. Whether may a Nobleman resign his Honours in favours of a third party and if the King's confirmation thereupon will exclude the nearest Agnats who would else have succeeded by their right of Blood Quest. 31. Whether does the former right of Precedency remain with him who has resigned the Office by which he enjoyed the Precedency Quest. 32. If a Person do not of himself resign but be called from his Charge by the Prince to another Imployment and one provided to his Place and returning thereafter to his first Dignity by the Princes command whether does he get Precedency according to his first or last Installment Quest. 33. Whether does he who is suspended from the exercise of an Office return to the same Precedency when the suspension is taken off Quest. 34. Two having Offices and changing one with another their Imployments for a time whether when they resume their former Imployments do they return to their former Precedency Quest. 35. Whether is he who is restored by the Prince to a Dignity from which he was degraded to be restored to the same Precedency which he had formerly Quest. 36. 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 Quest. 37. Whether have such as have been Ambassadours or have been in such honourable Imployments any Precedency thereby when their Imployment is ended Quest. 38. What place is due to the Representatives of Subjects such as Vicars Deputes Assistants c. Quest. 39. What Precedency is due to Assessors appointed for Iudges and to extraordinary Iudges Quest. 40. Whether can the King creat now an new Earl and ordain him to precede all the former Earls or any such number of them as he pleases Quest. 41. Whether if a King should creat an Earl with Precedency to all other Earls during his life or if when an Earl is forefaulted will his Lady in either of these cases retain the Precedency she formerly enjoyed during her Husbands life Quest. 42. Whether amongst those of the Royal-Line does the next to the Royal-Stock precede or does the Precedency belong to the eldest of that Branch Quest. 43. Whether or when is the right or left Hand the chief mark of Precedency and whether is the place opposite to the seat of the chief Person who sits betwixt the two preferable to either right or left Hand Quest. 44. Whether in Improbations raised to secure Precedency can Certifications be granted as well against Patents of Honour as against other Writs Courses taken by Princes and Iudges when they intend to shun the deciding of Controversies concerning Precedency and to preserve the Rights of all the Competitors Errata Page 13. Line 48. dele former p. 14. l. 21. read the French words thus Aubaines sont estrangers nais en pais c. l. penult for in the dependent r. independent p.
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
and her Nephew Robert Or as king Edward the third in the Right of the said Crown of France determined of the Controversie betwixt Iohn Earl of Montford and Charles of Bluis for the Dukedom of Bretaigne 3. By the Confession and acknowledgement of Prelats Peers and others the Estates of Scotland subscribed by all their hands and seals in the Roll of Ragman wherein they did acknowledge the Superiority of the kings of England not only in regard of such Advantages as the sword had given him but as his original and undoubted Right Which Roll was treacherously delivered into the hands of the Scots by Roger Mortimer Earl of March in the begining of the Reign of king Edward the third 4. By the tacite Confession of the kings themselves who in their Coyns Commissions and publick Instruments assume not to themselves the Title of kings of Scotland but of Reges Scotorum or the kings of the Scots and thereby imitating that though they are kings of the Nation yet there is some Superiour Lord king Paramount as we may call him who hath the Royalty of the Land 5. By the Judgements Arrests of the Courts of England not only in the times of king Edward the first but in sometimes since For â—hen William Wallace a Scotsman by birth and the best Souldier of that Country was taken prisoner and brought to London he was adjudged to suffer Death as a Traitor which had been illegal and unrighteous judgement had he been a prisoner of War and not lookt upon by the Judges as subject to the Crown of England The like done in the case of Simeon Fraâ—â—ll another of that kingdom in the same kings Reign In like manner in the time of king Edward the third it was resolved in the Court in the Lord Beaumonts case when it was objected That one of the Witnesses was a Scot and therefore as an Alien not to give his evidence that his Testimony was to be allowed because the Scots in the Law of England did not go for Aliens And when one indicted for a Rape in the thirteenth year of Queen Elizabeths Reign desired a medietatem linguae because he was a Scots-man and so an Alien it was denyed him by the Court because the Scots were not reputed here as Aliens but as Subjects rather So also when Robert Vmsramville Lord of Kyme was summoned to the Parliament of England in the Reign of king Edward the third by the name of Robert Earl of Angus which is a Dignity in Scotland and after in a Writ against him was called by his own name of Vmsramville without any Addition of that Honour the Writ was adjudged to abate which I conceive the Learned Judges had not done if Scotland had not been reputed to be under the Vassalage of the kings of England 6. And lastly by a Charter of Lands and Arms which I have in my Custody granted by king Edward the first in the last year of his Reign to Peter Dodge of Stopworth in the Countie of Chester one of the Ancestors of my mother In which it is exprest that the said Lands and Arms were conferred upon him by that king for his eminent Services encontre son grand enemi rebel Baliol king of Scotland and Vassal of England In Answer to these Objections founded upon the Reign of Brutus I need say no more save that Cambden and the other Learned English Writers do look upon the same as a meer fiction And for proving the Crown of Scotland to hold of England there must be authentick Documents in Writ produced as has been formerly debated And this does sufficiently answer all that is said of Bellinus king Arthur c. But to refute these Fictions and to show how much of Cheat is in all these Contrivances I need only cite a passage from the Learned Aylet Sammes in his Britannia antiqua pag. 159. whose words are That which gave some Authotity to this Fiction was the use king Edward the first made of it in vindicating his Title to Scotland against the pretence of Pope Boniface and the Church of Rome who laid claim to that kingdom by ancient Right as part of St. Peters Patrimony and that Churches Demesne It appears that the Monks and Friers had a great hand in making out this Title by Brute which story was now new vampt and from all parts sent out of these shops where at first it had been forged and hammered out And this doth more evidently appear if we consider many other parts of the same Letter as it is found in the Records cited by Mr. Prin but especially that miracle of king Adelstane who in perpetuam rei memoriam to give an evident signe of his Right to Scotland with his sword struck a blow upon a Rock near Dumbar that he Cleft it at least an Elne wide As to the Homage made by king Malcome to William the Conquerour it is answered That the matter of Fact is absolutely denyed And not only do our Historians and the Historians of Forreigners mention no such submission but they do on the contrair relate That William the Conquerour having come with a Designe to conquer Scotland he was forced by Malcome king of Scotland to a Peace very Honourable and Advantagious for Scotland one Article whereof was That William the Conquerour should restore such of the English Nobility as had fled to Scotland for shelter to their Estates and Honours And how can it be imagined that Scotland being then very Unite and living under a most warlike Prince would have submitted to a king who had too much to do at home or that King Malcome would have submitted to him whom he forced to restore even the English who had Rebelled against him And as the Constitution of Vassalage requires Writ so if any such Vassalage had been acknowledged he had accepted of a Charter holding of the Conquerour as all the other Vassals did As to King Williams Homage to Henry the second it is Answered That William having been treacherously made Prisoner he was forced by a long and tedious Imprisonment to make this Homage and consequently the Homage it self was null being extorted by Force and made by a person who was not sui juris being in prison It being certain by the Laws of all Nations That Deeds done by Prisoners are null but especially in this case where the Deed was such as that it would have been null however For even the most absolute Kings are so far from being able to alienate their Kingdom or enslave it that by so doing as some say they forfeit their own Right and make the Throne void for the next Successour who is not obliged by what they have done And if any such Act as this were binding then England by the same Argument had remained a Feu of the Empyre since Richard the first their King did Homage to Henry the Emperour for England and King Iohn his brother did the like Homage to the Pope and offered to
in 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
Blood it seems to have no Dependance upon Riches and as the having of Riches gives not Nobility so neither should the want of them take it away Likewise this is very express by the Roman Law Lege humilem Cod. de Incest nupt where it is said humilem abjectam foeminam non eam esse quae licet pauper sit ab ingenuis tamen parentibus nata est And that this hath been very anciently the opinion of the World is clear from that of Euripides apud Stob. serm 86. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But I find that Cook 4. inst folio 355. and the Authour of Ius Imaginis pag. 25. conclude that Poverty is a good cause for the Degrading of a Peer an instance whereof they give in George Nevil Duke of Bedford who was Degraded by Act of Parl. 17. Edward the fourth of which Act this is the tenour And forasmuch as it is openly known that the said George hath not nor by Inheritance may have any livelyhood to support the said Name Estate and Dignity or any name of Estate as oftentimes it is seen that when any Lord is called to high Estate and have not livelyhood convenient to support the same Dignity it induceth great Poverty and Indigence and causeth oftentimes Extortion Embracery and Maintenance to be had to the great trouble of such Countries where such Estate shall happen to be inhabited Wherefore the King by Advice of his Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same Ordaineth Establisheth and Enacteth that from henceforth the same Erection and making of the same Duke and all the names of Dignity to the said George or to John Nevil his Father be from henceforth void and of none effect c. From which Act three things may be well observed First That the said Duke had not any Possessions to support his Dignity yet his Dignity could not be taken away from him without an Act of Parliament Secondly The inconveniencies appear where a great Estate or Dignity is not accompanied with a livelyhood Thirdly This is a good Cause to take away the Dignity by Parliament For reconciling which opinions it seems indeed that though a person who is noble by Birth should fall into poverty yet that poverty can no more Degrade him from his Nobility then it can taint his Blood but though it cannot root out that Noble Character from his Blood and make him no Gentleman yet it seems a good reason why he may be Degraded from being a Peer of the Realm For the being a Peer is no necessar effect of Blood but a mark of the Royal bounty bestowed for the better Government and Advantage of the Kingdom Earles being by their Original Praepositi Comitatus or Commanders of the County and Counties or Shires are so called because they are the Governments of a Count or Earl And therefore when the King and Parliament find that they are not fit to bear this quality they may justly take away that Honour that was given nor can there be any thing so inconvenient as that these should represent the Kingdom in its greatest concerns and burden it with with Taxes who have no interest in the one nor can bear any share in the other And that these Feudal Dignities and markes of Nobility may be taken off by the loss of the Fews is clear by Bartolus in L. inam Cod. de Dignitatibus and that this is the custome of Sicily is clear Afflictus Col. non in 6. not It may likewise seem reasonable that as the King onely can bestow Nobility so that it should be onely proper for him to Degrade And since he may Create any Nobleman though he be poor so he may continue him so notwithstanding of his Poverty specially seing the being a Peer is but to be the Princes Counsellour nor can any judge who are fit to be his Counsellours but himself nor is the Parliament any thing but his great Council But since this Degradation is a kind of Forfeitur it seems that the Parliament onely can be Judges therein since the King does not use to Forfeit by his own Authority And though the former Arguments may prove that a Peer cannot be Degraded for poverty except the King pleases which is certainly true since no Act of Parliament can pass without his Royal consent yet they prove not that the King may Degrade a Nobleman by his own Authority except he may Judge all cases immediately by himself QVESTION XXVII Whether is a Patent never made use of by the Father valid after his death It is answered That though the Patent being granted to such a man therein Designed seems to die with him and that the Father dying with this quality cannot transmit it to his Son yet it is certain that the Patent is valid to his posterity For except where it was Designed to be personal it is conceived in Favours of a man and his Heirs and thus it was judged in the cause of Quesnel Advocat in Rowan 4. May 1623. vid. La Rocque cap. 67. QVESTION XXVIII Whether if the Father use any low or base Trade which Derogates from Nobility will his Children and Descendents loose it thereby In answering to this case We must distinguish betwixt such as derive their Nobility from their Fathers onely and some think that in that case the misbehaviour of the Father does extinguish the Nobility of the Race and that the Descendants are no more Noble except they be restored by an express Gift Or otherwise the Nobility of the Race has descended from a long Series of Predecessours and then the Fathers Deed does not prejudge them since they do not owe their Nobility to him and the Prince having Nobilitat such a man and his Posterity they owe their Nobility to the King and derive it from him equally with the Father which Distinction I find in the Learned Faber Cod. L. 9. T. 28. Def. 1. But it seems that by this last reason Even that Nobility which is begun in the Father cannot be lost by his fault And therefore some Lawyers have been of Opinion that that Nobility which descends by immemorial possession and which flows not from a particular priviledge and Concession can never be taken away by the Fathers baseness or crime Warnaesius tom 1. responsorum de Iure Pontificio Consil. 20. num 7. and thus we find in the Roman Story that Marcus Emilius Scaurus was found not to have lost his Nobility by his Fathers becoming a bearer of Coals Curt. conjectur jur civil lib. 2. cap. 20. and others think that as it is sufficient for acquiring Nobility that the Grand-father and Father have been repute Noble So by the rule of Contraries it is sufficient for extinguishing Nobility that the Father and Grand-father have been repute Ignoble And though the rights of Blood cannot be lost by prescription yet Nobility may be lost as all other priviledges can by not exersing or owning
it time out of mind It is fit to know that in this Isle not onely that Nobility which comes by Succession and Immemorial possession but even that which comes by priviledge and Concession can be Forfeited by the Fathers Crime and in this We differ from Warnesius opinion and therefore the Children must be rehabilitat and restored by the King But the Fathers unworthiness in exercising mean shifts and Trades does not amongst us Derogate from the Childrens Nobility as in other Nations Nor do I see any reason for the distinction used by Warnesius for all Nobility must be acknowledged to have flowed originally from the King by Concession and even that Nobility which comes by priviledge does descend upon the Children by the Kings grant to them aswell as the Father and so cannot be prejudged by any personal deed of his except in the case of a Crime against the King for that is still implyed in the Concession and it is not just that the Children of Traitours should enjoy those titles and that Nobility which might be useful to them in revenging their unjust quarrels QVESTION XXIX One having resigned a Dignity or Imployment and returning thereafter thereto whether does he who has so resigned return to his former Precedency To this it is answered That he does not but having embraced again the employment he had formerly resigned he is onely to have Precedency according to his last Reinstalment Langleus 7. Semest 8. where it is laid down as a rule that Precedency once lost is never recovered and an instance of this is given cap. ex Insinuatione 26. in a Chanon who having once renunced his Benefice and having thereafter embraced it is onely to be preferred according to the date of his last title From this last rule viz. that a Precedency once lost cannot be recovered Gothofred de Preced cap. 6. num 43. observes these Exceptions First If the person who renounced his Dignity was preferred to a Higher or more Noble in which case if he return to his first Imployment he looses not the Precedency due to it for a greater Dignity never prejudges the lesser L. 3. C. de Dignitatibus Rupanus lib. 7. cap. 27. and contains in it the lesser per eminentiam as Lawyers speak superveniens major Dignitas auget non minuit statum except the two Offices be incompatible in themselves for then the lesser is extinguisht by the greater L. si debitoris ff de fidejussor The second exception is If the person in whose favours the Resignation was made will not accept and upon his refusal the Resigner does presently return to his Precedency L. si forte ff de Offic. Presid And the reason is because the Resignation being there made in favours of another has that tacit Condition in it that if the other in whose favours it was made accept not the Resignation shall be null and this is the nature of all Resignations in favorem with us as to all Fews as Craig well observes The third Exception is If he who made the Resignation do presently repent for in that case likewise he is in the condition as if he Resigned not And thus the Law takes not advantage of Our sudden and undigested thoughts Et uxor quae mox rediit divertisse non videtur The fourth Exception given by him is If he who Resigned reserved to himself his former Precedency for which though there be several Roman decisions yet it is very debateable how far a man can by Protestation or Paction distinguish and reserve a Precedency when he has Resigned or Disponed the Imployment to which it was annexed For since the Precedency is onely due upon the account of the Imployment it would seem that he who has Resigned the Imployment cannot retain the Precedency and to do so were to retain accidens sine subjecto QVESTION XXX Whether may a Nobleman resign his Honours in favours of a third Party And if the Kings Confirmation thereupon will exclude the nearest Agnats who would else have succeeded by their right of Blood This question seems of great Importance and intricacy For it may seem that he may transfer his title in prejudice of his nearest Heirs because the title is onely a Fee and all Fews may be alienated nor is this a meer right of Blood but a priviledge bestowed by the King and consequently may be transferred by his consent Nor can their be any thing more for the interest either of the Kingdom or of Noble Families than that when the nearest Heir is unfit to succeed wanting either Means or Wit suitable to such a Dignity it should be in the power of the King and the Noble person himself to choose a fit successor Like as this was so decided in the case of Robert King of Sicily Cl. pastoral de re Iud. And many Lawyers have been of opinion that even elder Brothers might resign their right of Succession and primo-genitur in favours of the third Brother passing by the second vid. c. 1. § praeterea tit quib mod feud amit Bald. Consil. 389. But others conclude That the nearest by Blood are not prejudged by such Resignations Because this is a right flowing from the favour of Nature and Law Naturae Legis donum quod non potest auferri L. si arrogater ff § sed an ff de Adopt nor is Dignity exposable to sale or in Commerce L. Iulianus ff si quis omiss Whereas if such Resignations or transmissions were sustainable all titles might be sold and the meanest Fellow if Rich might by the favour of a Minister and the folly of the present Possessor exclude the Noblest Race And by the Feudal Law though a Vassal may denude himself yet he cannot transmit his Fee in favours of remoter Heirs to the prejudice of the nearer cap. Titius tit si de feud fuer Contravers this case is not decided with us but the King upon a Resignation from the late Earl of Caithnes in favours of Glenurchy confirmed the title in his favours but by a new Patent and without the former Precedency and discharged by a letter the next Heir to use the title till the matter should be decided by the Judge competent But I find that in England Ed. 2. granted to Edmond de Lincourt upon his Petition a Patent under the great Seal impowering him to assign his Sirname Arms and Barony But the Lord Hoe having assigned his Name Arms and Dignity without the Kings licence the deed was adjudged void in Parliament From which the Authour of Ius imaginis pag. 27. concludes first That the title of Nobility may be assigned Secondly That it cannot be assigned without the Kings licence And yet I find that in the Viscount Purbecks case it was lately found by the parliament of England that a Nobleman could not levey a fine upon his Honour in prejudice of his Heir that is to say That a Nobleman could not do any deed to the prejudice of his Honour by alienating
Opinion that they are to be preferred to the same Dignity in all promiscuous and indifferent Acts which fall in during the time of the Representation and thus Cautuccius decis 582. is of Opinion that the Bishops Viccar sent by him to hold a Synod is to have Precedency before all the Chapter not onely in the Synod it self but likwise in all other Assemblies Visits and Intertainments during his Commission But the contrare of this is mantained by Menoch Consil. 51. And in my Opinion these Doctors may be thus reconciled viz. If the Representation flow immediately from the Law as for instance If the Council should Delegat any man to be Sheriff there the person substitut would have in all cases during his Commission the same place that is due to him in whose place he was surrogat for there Surrogatum sapit naturam surrogati But if the Representation flow from the person himself whom he Represents in that case the Representative has onely the Precedency whilst he is exercising the Office or in Actions thereto relating And thus Sheriff-deputs with us have onely the Precedency due to their Constituents whilest they are exercising these Acts which relate to their Office And yet I think that those Representatives of Subjects have even in all extrinsick and indifferent Acts the Precedency due to their Constituents when they meet with others of the same Degree and thus amongst Sheriff-Deputes c. the Precedency is to be given according to the Precedency that is due to the Principal Sheriffs QVESTION XXXIX What Precedency is due to Assessors appointed for Iudges and to extraordinary Iudges I conceive that Assessors chosen by a Judge get no Precedency thereby since Subjects cannot bestow Dignities but that where the Prince names any man Assessor to a Judicature the person so named has thereby the Precedency next to the Judge to whom he is named Assessor nam est ejus umbra his shadow as the Law speaks and the shadow should follow the body And with Us when the Council names Assessors to the Justices the Assessors vote onely after the Justices And yet in France I find that Assessors take place after the President and before the other Councellours and so it was decided at Paris 1608. It may be also doubted whether Our extraordinar Lords of Session who sit with and vote after the ordinar Judges should have place after them if they were not Earles or Noblemen as by the institution they are oblieged to be but not either as that the King may not promote Gentlemen hereafter quo casn I think they would take place after the ordinar as they vote after them For these extraordinar Lords are like to these adscriptitiâ— or allecti L. 2. C. ut dignit ord servetur of whom Capitolinus in the life of Pertinax quâ—m Commodus allectionibus innumeris praetorios miscuisset senatus consultum Pertinax fecit jussitque eos qui praeturas non gessissent sed allectione accepissent post eos esse qui vere praetores fuissent QVESTION XL. Whether can the King Creat now an new Earl and Ordain him to preceed all the former Earles or any such number of them as he pleases It would seem that the King cannot For there being a Precedency acquired to the former Earles by their first Gift the King cannot by any new gift prejudge third Parties and this were in effect to Forfeit them of their Precedency Likeas it would seem that since most Earldoms were granted by erecting lands in an Earldom in favours of the Receiver that therefore the Concessions of Land and Honours are of the same Nature and that no new grant can prejudge the one more then the other But it may be urged on the Kings part that the King being the onely fountain of Honour he may do therein as he pleases except in so far as he is limited by Law And therefore since there is no Law with us limiting the King in this point he may do therein as he pleases 2 o. The King by Act of Parliament Henry the eight is limited as to this point in England so that he can grant no such Preference And therefore it may be concluded that this was formerly in his power even there and that since he is not limited here his power is here intire as to this point whereof many instances are given in answer to quest 35. and since that statute it is thought that His Majesty may ordain the last Knight to preceed all the rest formerly dubb'd and created because Knights are not exprest in that statute 3 o. We see the King in Scotland does impower Countesses to retain their former Precedency though they marry a Husband of a Rank inferiour to their first Husband And Dukes Daughters even after their Marriage to retain the Precedency due to them as Dukes Daughters 4 o. His Majesty does by new Confirmations transfer the Honours to Hiers Female though the Patents at first were onely granted to Hiers male and so by the not existing of the Hiers Male those Earles who have the next Precedency might aswell alleadge That the King could not by any new right in favours of the Hiers Female prejudge them 5 o. His Majesty does sometimes appoint any of His Officers of State to preceed other as he pleases though these may likewise alleadge that there is jus quaesitum to them by their prior Gifts 6 o. His Majesty restores the Sons of persons forfeited to their Fathers Precedency notwithstanding of the jus quaesitum by others medio tempore 7 o. The King has oblieged himself not to prefer the Knights of Nova Scotia or Knights-Baronets otherwise then according to their Creation which had been unnecssar if the King could not have preferred them by His Royal prerogative Sometimes also His Majesty confirms to the Nobility the entails of their Estates whereby they have power to name their Successour with the Precedency due to themselves which right being ordinarly ratified in Parliament uses to establish and transfer the Precedency upon the Heir or Successour so nominated But since Ratifications pass without observation and oftentimes without reading it may be doubted whether such a Ratification should prejudge even these who were Members of Parliament but much more such as were not present or such as were Created thereafter these Ratifications not being properly publick and Legistative statutes and so can bind onely such as consented QVESTION XLI Whether if the King should creat an Earl with Precedency to all other Earles during his life Or if when an Earl is Forfeited will his Lady in either of these cases retain the Precedency she formerly enjoyed during her Husbands life To which it is answered That as to the first it was expresly decided in England in the case of the Earl of Notingham that he upon the surrender of the Admirals Office being by King Iames allowed the same Precedency that belonged to Iohn Lord Moubray his predecessour That therefore his Lady should enjoy the same Precedency
The speciality of Officers of State being That in all Acts or Meetings which concern the State they sit as Members by Vertue of their office as in Parliaments Conventions c. where the Chamberlain and Admiral come not as such nor the Constable and Marishal if they were not Earles The Officers of State have oft contended for Precedency amongst themselves And therefore King Iames did in Privy Council upon the 17. of Iune 1617. Declare That in that and all other Parliaments none should sit as Officers of State save eight and though there should be moe of the saids Officers by Deputation Division or otherwise Yet eight onely should sit which eight he did thus Rank by Act of Council Thesaurer Privy-Seal Secretary Register Advocat Justice Clerk Thesaurer-deput Mr. of Requests And yet His Majesty having appointed Sir Archibald Atchison to be second Secretary and he having contended that his place was to be next the principal Secretary This was Opposed by the Register and Advocat founding themselves upon the said Act of Council It was answered thereto That His Majesty might notwithstanding of the said Act have as many Secretaries as he pleased and by that His Majesty was only Limited to eight Officers of State in Parliament But that notwithstanding thereof he might make use of any eight he pleased and accordingly he had made use of the Chancellor Collector and Comptroller as Officers of State in several Parliaments notwithstanding that they are none of the eight Officers mentioned in this Act Likeas K. Ia. had appointed the Lord Chancellor being a Nobleman to sit amongst the Noblemen and not as Chancellor or an Officer of State The Council did remit this Debate to the King I find that upon the 20. of February 1623. the whole matter of Precedency amongst His Majesties Officers and Counsellors is thus Stated The Lord Chancellor The Lord Thesaurer The Arch-bishop of St. Andrews The Arch-bishop of Glasgow The Earles and Viscounts according to their Ranks Bishops according to their Ranks Lord Privy Seal Lord Secretary Lord Register Lord Advocat Lord Justice Clerk Lord Thesaurer-deput The Lords of the Session according to their Admission Barrons and Gentlemen being Counsellors according to their Admission It is observable from this Act that Lords of the Session have Precedency from Privy Councellors in Scotland otherwise any Counsellor of an elder Admission would be preferred to them And yet in England Privy Councellors are preferred to all the Judges and even to the chief Justices And with Us I find no Privy Councellor take place as such from any person whatsoever which seems very strange For since the Judicatur it self is placed before the Session and that its President hath Precedency from the President of the Session that therefore its Judges ought to preceed the Judges of the Session 2 do Though the Lords of Session are Lords of Council and Session yet there being Secret Councellors gives them a greater nearness and Argues a greater Trust And in all matters of Precedency these are the Chief Topicks for Precedency 3 o. In Law Counsellours are called by the Emperour Pars Corporis nostri l. quisquis C. ad L. Iul. Majest And so to assault them was Treason and is with Us. 4 o. In France this Question betwixt the Members Magni Concilii and the Senators of the Parliament of Paris is Debated by Boerius and he prefers the Counsellours And in Sweden they have place from all the Nobility 5 o. The Lords of Privy Council have more supereminent power then the Lords of Session For they can stop the Precedor of the Justices they can Adjourn the Session they can grant Precognitions moderat punishments c. Notwithstanding of all which such Respect has Our Kings to the Lords of Session who Distribute Justice Equally to the People that they still preferred them to all the Subjects except the Lords of Parliament and their eldest Sons It has been contended by the Younger Sons of Noblemen That they ought to have Precedency from the Lords of Session Because sayes the second Son of an Earl I have Precedency from the Eldest Son of a Lord and yet he has place from the Lords of Session and it is a certain Rule in Precedency That if I preceed you I must preceed him who preceeds you And if an Earles second Son and a Lords eldest Son and a Lord of Session did meet together the Earles second Son could not preceed the Lords eldest Son except he preceeded also the Lord of Session To which nothing can be answered save that the eldest Sons of Peers being presumptive Peers and such as will be Peers It is fit that the Lords of Session who have but a Temporary Precedency should not preceed them But I find that though in England the younger Sons of the preceeding Rank take still the place from the eldest Son of the next mediat as the younger sons of Dukes from the eldest sons of Earles and the younger Sons of Marquesses from the elder Sons of Viscounts And that all the Chain of Precedency is founded upon this Gradation and that it seems that Nature has led men to this Establishment Yet the eldest Sons of Our Lords Lord Barons refuse to Cede to the second sons of Earls and it was so of old with Us and that which may be given as a Reason for this is that it is unreasonable That they who are to be Peers and to have a constant Title should Cede to such as have but a Temporary Honour But if this Reason were sufficient the younger Sons of Dukes should not preceed the eldest Sons of Lord Barons With Us the eldest Sons of Lord Barons are Design'd Masters as the Master of Rosse c. And of old the Uncles of Lords after the Death of their elder Brother though he left a Son were called Masters till the Nephew had a Son For which I know no other Reason but that because they wanted a Tittle they took this For their Father being Lord there was no Degree below to take as the elder Sons of Earles took that of Lord. And I believe that thus the word Master was given in England to meaner People when their name was not known For though the word Dominus was refused by Augustus as importing Slavery which the Romans could not bear rather then from a secret Impulse as St. Augustin sayes In respect Our SAVIOVR was then Born who was the True Master since Sueton tells That Tiberius also refused this Title yet in Complement even then such as were not known were called Domini Obvios sayes Seneca si nomen non succurrit Dominos salutamus and thereafter with the Roman Slavery this Title grew from being a Complement to be a Duty And thus the Grecian Emperour was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the eldest son 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and from this Title of Master came Meship amongst Us which was given to all such as had not a special Title as Lord Sir
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
if she survived him because this was not a Dignity of Office but a real Dignity settled in his person and generally in all real Dignities such as those of Dukes Marquesses Earles c. the wives participat the Husbands honour even after his death for it is not the Patent that confers the Honour upon her for else she could not enjoy the same except she were therein mentioned but her right flows from the Common-Law which illustrates the Wife with the Husbands Dignity because Marriage is individua vitae consuetudo And in the Law the Husband and Wife are one person and for the same reason we see likewise that the Wives of Knights-Batchelours and Knights of the Bath enjoy the same Precedency that was due to their Husbands though they enjoyed the same for Life And whereas it may be objected that the Husband having the Honour but for Life it cannot be continued longer then for the time limited or to be transferred to the Wife after the death of her Husband It is answered by the same rule and proportion no wife whatsoever should enjoy the title of her Husbands honour after his deceas but then all the honour and place should surceas for she challenges nothing but from her Husband The Honour for perpetuity to the Heirs concerns onely the Descendents and they are thereby Enobled But to her a state for Life and a state to the Heirs is all one I find also that Sir William Heram having married the daughter and Heir of the Lord Saye and so being in her right a Baron and by reason of that Marriage summoned to the Parliament as a Peer of the Realm having survived his wife albeit he had no Issue by her he notwithstanding enjoyed that title and dignity during his life To the second branch of this question it is answered That the wife of a person forfeited enjoyes the same title and dignity that was due to her before the forfeiture for though it may seem that the dignity of the Family is extinguished and consequently she cannot enjoy it Yet the crime punishes onely the person and corrupts onely the blood quo-ad the Descendents but not quo-ad the Wife And though the honour be extinguished yet being extinguished upon a personal account the punishment ought not to reach further then the crime QVESTION XLII Whether amongst those of the Royal Line does the next to the Royal Stock preceed Or does the Precedency belong to the eldest of that Branch The reason of this doubt is Because as in other Nobility the first who is dignified has still the Precedency as being farthest removed from the Dreggs and Lees of the Vulgar So amongst those who are descended of Kings the last is still preferred as being nearer to the Common-Stock by which all are Enobled And therefore the Uncle it seems should preceed his Nephew by the elder Brother as being a Degree nearer to the Stock as was alleaged by the Cardinal of Bourbon Uncle to Henry the fourth But yet it was justly decided for Henry the fourth because though the younger Branch be still preferred yet amongst these of the same Branch the eldest is still preferable for by the right of Representation he Represented his Father which Father would have been preferred and here again the right of Birth-right still returns And this holds not only in France as Tillet observes but with us in Britain and generally in all Law Exod. 6. and 1. Cron. 4. vid. Dec. Consil. 445. albeit of old in Scotland the Uncles did oftentimes usurp upon this account L'oiseau chap 7. And to this day the eldest Cadets in private Families do still take place with us from the last descended beyond the Brothers of the Family and those old Cadets take place of the Nephews which is an Errour QVESTION XLIII Whether and when is the right or left Hand the chief mark of Precedency And whether is the place opposite to the seat of the chief Person who sits betwixt the two preferable to either right or left Hand To this it is answered That amongst both the Iews Greeks and Romans where three were either sitting or walking the midle-place was thought the chief place but where two were without a third the right Hand was concluded the more Noble amongst the Iews and thus the Scripture tells us That such as are to be saved shal sit at the right hand of GOD And yet in Iacobs Blessing Ephraim and Manasseh the left hand was preferred Genes 48. vid. Pansirol lib. 1. pag. 501. But amongst the Romans it was doubted which of the two was preferable Demsterus Antique Roman pag. 866. And yet it is certain that amongst the Turks the left side is acounted the more Noble because he commands his neighbours Sword And though these be the chief Seats yet he who is set opposite to him who sits in the midle is thereby preferred to him who either sits upon the right or left hand since in effect he is made the Correspondent of the chief Person as Golstadus defends by many instances pag. 433. QVESTION XLIV Whether in Improbations raised to secure Precedency can Certifications be granted aswell against Patents of Honour as against other Writes This question having occurred in a Debate Ianuary 1672. betwixt the Earl of Sutherland and the Earl of Errol It was urged that in Declaratours of Precedency and Improbations raised for securing thereof no Certification could be granted because 1 o. such Certifications were onely granted where the Right and Title to be improven was constitute by Write But so it is that the Dignity and Honour of Dukes Marquesses Earles c. was not onely established by Patents or Infeftments but might be acquired by bringing them in to Parliament in their Robes and such other formes of Creation as have been practised both amongst us and other Nations against which no Certification could operat 2 o. Certifications are onely allowed where the Pursuer of the Improbation has a direct title to that whereof the Right is to be improven exclusive of all others But so it is that the Earl of Sutherland nor no other has an express and explicite Right to be the first Earl of Scotland and any right he has to the Precedency arises onely consequentially 3 o. Improbations being onely a remedy introduced by our Law and the native designe thereof being to secure real rights and private Estates it ought to be extended to no such case as that of Dignities and Honours to which it has never heen applyed during these many years that Improbations have been used here and to which certainly our Predecessours would have applyed them if the nature of the action would have allowed it To which it was answered That Certifications being introduced amongst us to secure the Pursuer against any Evidents in the Defenders hand which might prejudge the Pursuers right they ought to be extended to Honours established by Patent or Infeftment these being rights that are transmitted by Write and this being