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
presence of King Iames it was determined in favours of the younger sons of Viscounts and Barons But at the same time it was declared That such Bannerets as should be made by His Majesty or Prince of Wales under the Kings Standard displayed in an Army Royal As also the Knights of the Garter Privy Counsellours Master of the Court of Wards and Liveries Chancellour and Under-Thesaurer of the Exehequer Chancellour of the Dutchy Chief Justice of the Kings Bench Master of the Rolls Chief Justice of the Common-pleas Chief Barons of Exchequer and other Judges and Barons of the degree of the Coif should have place and precedency both before the younger sons of Viscounts and Barons and before all Baronets by which some alterations may appear from the Ranking appointed by Henry the fourth Beside what has been formerly observed in the description of Knights Baronets I find that of old a Banneret or a Ban-rent has been with us a title higher than a Baron for by Act 101. Parl. 7. Ia. 1. Barons may choose their own Commissioners but Bishops Dukes Earles Lords and Ban-rents are to be summonded to Parliament by the Kings special precept And it is probable that these Ban-rents were Knights of extraordinary reputation who were allowed to raise a company of men under their own Banner but now it is commonly taken for such as are Knighted by the King or Prince under the Royal Standard in time of War But I conceive that those could not now sit in Parliament upon the Kings precept the former Act of Parliament being in desuetude They have the precedency from Baronets though their Wives have not this being but a temporary Dignity and the other an heritable Barons in England are Lords with us but a Baron with us is properly he who has power of pit and gallows And yet of old I conceive that Lords and Barons were the same for the Statutes of K. Robert 1. bear to be made in his Parliament holden at Scoon with Bishops Abbots Priors Earles Barons and others his Noblemen of his Realm And in Our old Original Acts of Parliament I find that the Lords and Barons are put in one column undistinguished and under the common name Barons And in the first Parliament of K. Ia. the 4th I find the Master of Glames i. e. the Lord Glames eldest son sitting inter Barones Now the Lords are called the Great Barons and the rest are called Small Barons in the 101. Act. 7. Parl. Ia. 1. and ever since But yet I find by the 166. Act. 13. Parl. Ia. 6. every Earl or Lord payes 2000. pounds for Lawborrows and every great Baron 1000. pounds but by great Baron there is meant a Baron of a considerable estate because that Act was to proportion the Surety to be found to the estate of him who finds the Surety The old Barons or Lairds amongst us especially where they are Chiefs of Clans or the Representatives of old Families that were Earldoms as Pitcurr is of the Earl of Dirleton and as Chief of the name of Halyburton have never ceded the Precedency to Knights-Baronets much less to ordinar Knights Though the other pretend that a Baron is no name of Dignity and that Knights-Baronets have a special priviledge that there shall be no degree betwixt them and Lords except the Bannerets And though militia non est per se dignitas Chassan fol. 344. yet generally it is believed that next to Knights-Baronets succeed Knights-Batchelours and next to them our Lairds or Landed-Gentlemen though a Laird in effect is but the corrupt word of a Lord. Amongst such as profess Sciences the Ranking goes thus uncontravertedly 1 o. Such as profess Theology 2 o. Such as profess the Canon-Law 3 o. The Civil-Law 4 o. Philosophy 5 o. Medicin 6 o. Rhethorick 7 o. Poescy 8 o. History 9 o. Grammer 10 o. Logick 11 o. Arithmetick 12 o. Geometry 13 o. Musick 14 o. Astronomy Chassan de gloria mundi pars decima And amongst these such as are Doctors preceed these that are not and amongst Doctours the priority goes by Age. In Towns These who inhabit Cities are preferred to such as inhabit Burghs and generally those in the Metropolitan or capital City are preferred to all the rest And those who have born Magistracy are even when their Magistracy is over preferred to all others And so far is this Precedency observed that 1 o. A younger Alderman or Bailie takes not Precedency from his Senior because he is Knighted or as being the elder Knight as was found in the case of the Alderman Craven who though all the rest of the Alderman were Knighted at the Coronation of King Iames kept the precedency formerly due to him as Senior Alderman But though this hold not onely amongst Aldermen but that even all Knights of the Countrey being Burgesses of a Town do cede to these who have been their Magistrates in it as to publick meetings relating to the Town Yet it is doubted whether such a Knight will be oblieged to give place to an Alderman or Baily in a neutral place But it is determined in the Heraulds Office of England that all such as have been Mayors of London that is to say Provosts with us do take the place of all Knights-batchelours every where because they have been the Kings Lieutenants It is there likewlse remarked That Sir Iohn Crook Serjeant at Law was Knighted before any other Serjeant his Ancient and standing upon Precedency by reason of his Knighthood It was adjudged against him by the Judges viz. that he should take place according to his Serjeancy and not after his Knighthood yet his wife took her place of a Lady before other Serjeants wives The Members of Courts do take place amongst themselves according to the precedency of the Courts where they serve as the Clerks of the Privy Council take place of the Clerks of the Session In Families likewise the Chief of the Family takes place of any Gentleman of the Family And though generally it be believed that Gentlemen have no precedency one from another yet Reason and Discretion do allow that a Gentlman of three Generations should cede to a Gentleman of ten if there be not a very great disparity betwixt their Fortunes and that for the same Reason almost that a Gentleman of three Generations claims precedency from any ordinary Landed-man who was newly acquired his lands CHAP. IX The Precedency due to Women WOmen before their Marriage have Precedency by their Father but there is this difference betwixt them and the Male-children that the same Precedency is due to all the Daughters that is due to the eldest though it is not so amongst Sons and the reason of the difference seems to be that Daughters would all succeed equally whereas the eldest Son excludes all the rest But if this be the adequat and true reason then where the Estate and Honours are provided to the eldest Daughter onely excluding the rest they ought not to have the same
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
or surrendring the same to the prejudice of his Heir though I am informed that there were very many instances adduced for clearing the contrare opinion QVESTION XXXI Whether does the former right of Precedency remain with him who has resigned the Office by which he enjoyed the Precedency It seems that the Honour being in that case due upon the account of the Office should cease with its cause But yet such respect is given by the Law to those who have once enjoyed an Office and used it well that the former Dignity and Precedency is allowed them after they have resigned the Office L. eam Legem ff de excusat Illi in quos munera nostra redundarunt beneficiis eorum non solum quamdiu militaverunt sed etiam quamdiu vixerint perfruentur and Guid. Pap. relates decis 377. that it was so decided For the being esteemed worthy to possess such an Office is a quality inherent to and inseparable from the person so advanced and in most cases even Deprivation does not extinguish the Precedency because the order still remains as if a Bishop be deposed he is still a Bishop and therefore has Precedency as such But in such cases as the deprivation destroys the order it self it destroys also in that case the Precedency as if a Knight were degraded for Cowardliness he is no more a Knight and so looses the Precedency annext to the Order L. 12. de Dignit si Iudices se furtis sceleribus fuerint comaculasse convicti ablatis codocillorum insignibus honore exuti inter plebeios habeantur QVESTION XXXII 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 instalment I find this to have been agitated in the Parliament of Savoy anno 1590. in the case of the Bishop of Alby who being called from being a Counsellour in that Parliament to a Bishoprick and his place being filled by another he thereafter was called back to be a Counsellour And this may fall out with us in many cases as for instance If one should be called from being a Lord of the Session to be Justice General and should thereafter be returned to be a Lord of the Session And I find it was decided in Savoy that the person so recalled ought to preceed according to his first instalment but the reason there was that the Prince had expresly declared at his Demission that if he returned he should return to his first Precedency and that it were indecent that he who was first formerly in that Judicature should therafter sit in the lowest place meerly because he was once called away to a higher preferment And in my opinion If the Prince had not so expresly declared at the first Demission the case might have been harder but that Declaration made that those who were thereafter preferred could not think themselves prejudged by this new readmission since their instalment was still burdened with this tacit quality I likewise think that if he had returned before any others had been advanced the difficulty had been much less since there no third party was prejudged of a right acquired medio tempore albeit it might be alleaged that by his Translation the other Judges formerly below him succeeded to his right of Precedency For against this I conceive the former protestation could have easily guarded albeit that protestation does seem contraria facto and the quality adjected to be inconsistent with the nature of the thing where the place was filled by another since regularly two cannot preserve the same Rank or Degree Arg. L. cum in Testamento ff de haered instituend It may be likewise argued that though this quality and protestation was admistable where the party so called away was called to a higher Dignity of the same rank that there the lesser was possest by possessing the greater as if a Justice General should be called back to be a Lord Yet this would not hold notwithstanding of the former protestation and quality where he is called away to a lesser imployment or where he is called to an imployment of a different and incompatible Nature as from being a Judge to be a Collonel And yet all these questions seem of less difficulty with Us where the Prince may certainly admit a Judge to be the first or last And therefore amongst Us these questions would onely take place where the person formerly installed was called away or preferred without any such Declaration of the King in his favours QVESTION XXXIII Whether does he who is suspended from the Exercise of an Office return to the same Precedency when the Suspension is taken off To this it is answered He does For though a Suspension may seem a Degradation and a Privation of the former Honour and all Privations extinguish nec datur regressus a privatione ad habitum yet Suspension is in Law declared to be onely a temporal Interdiction from the Exercise but not an extinction or Privation of the right And this is clearly determined L. 2. § ff de Decurion and by Langlaeus 7. Semest 8. QVESTION XXXIV 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 It is answered Where two did exchange Imployments and thereafter returned to their old Imployments Lawyers are of opinion that in that case they return to their former Precedency and that their imployments are not looked upon as new imployments because the one possest still by the other and so the possession was still the same as if it had been by themselves L'oiseau lib. 1. cap. 7. Rupan lib. 7. cap. 27. but though this may hold where both of them changed but for a time since there indeed the one possest by the other yet this seems harder in the case where both of them exchanged absolutely and for ever For there their former right seems to have been extinguished and the Imployments to be new as to both QVESTION XXXV 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 To which it is answered by Gothofred cap. 6. Thes. 45. That he is not by this Restitution to recover his former Precedency from which he was Degraded but he must preceed by vertue of his new title onely But I should rather distinguish betwixt these who are restored by way of Justice in which case the Precedency ought to be the same because the Restitution be way of Justice takes away the Impediment and Degradation as if it had never been but where the Restitution is onely by way of Grace there the Fault and Sentence still remains though the punishment be taken off and there the Restitution ought
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
Scotland counterchanged charged with an inescutcheon of the Royal Arms of Scotland supported on the dexter by the Royal Unicorn and on the sinister by a Savage or Wild-man proper and for the crest a branch of Laurel and a Thistle issuing from two hands conjoyned the one being armed the other naked with this Ditto Munit haec altera vincit And that they and their Heirs Male should in all time coming have place in all His Majesties and His Successours Armies in the middle Battel near and about the Royal Standard for defence thereof And that they and their Heirs Male may have two Attenders of the Body for bearing up the Pale one principal Mourner and four Assistants at their Funerals And that they should be always Called Intituled and Designed be the name and title of Baronet and that in all Scottish Speeches and writings the addition of Sir and in all other discourses and writings a word signifying the same should be preponed to their names and other titles and that the stile and title of Baronet should be postponed and subjoyned thereto in all Letters-patents and other writes whatsomever as a necessar addition of Dignity and that each of them should be intituled Sir A. B. Baronet and his and his Sons Wives should enjoy the stile title and appellation of Lady Madam and Dame respectively according to the usual phrase in speaking and writing And also His Majesty did thereby promise That the number of the Baronets aswell in Scotland as the new Colony of Nova Scotia should never exceed the number of 150. albeit this number is at present somewhat augmented and did likewise Declare That He nor His Successours should never Create nor Erect in time coming any other Dignity Degree Stile Name Order Title or State nor should give the Priority or Precedency to any Person or Persons under the Stile Degree and Dignity of a Lord of Parliament of Scotland which should be or should be presumed to be Higher Superiour or Equal to that of Baronet And that the Baronet should have liberty to take place before any such who should happen to be created of any such degree or order and that their Wives Sons Daughters and Sons Wives should have their places accordingly And that if any question or doubt should arise anent their places and prerogatives the same should be decided and judged according to these Laws and Customs by which other degrees of Heritable Dignities have their priviledges cognosced and determined And finally that none should be created Baronet either of Scotland or Nova Scotia till he had first fulfilled the conditions designed by His Majesty for the good and increass of that Plantation and until he had certified the same to the King by His Majesties Lieutenant there These Patents were ratified in Parliament and were always of this form till the selling of Nova Scotia to the French after which time they were made much shorter and granted in general terms with all the Priviledges Precedencies c. of the former Baronets And in the year 1629. His Majesty did allow these Baronets a particular cognisance which will be best known by the coppy of the following Letter direct be his Majesty K. Charles the first to the Privy Council here RIght Trusty and right well beloved Cousin and Counsellour Right trusty and well beloved Cousins and Counsellours and right trusty and well beloved Counsellours We greet you well Whereas upon good consideration and for the better advancement of the Plantation of New-Scotland which may much import the good of Our Service and the Honour and Benefit of that Our ancient Kingdom Our Royal Father did intend and We since have erected the Order and Title of Baronet in Our said ancient Kingdom which We have since established and conferred the same on diverse Gentlemen of good quality And seing Our trusty and well beloved Counsellor Sir William Alexander Knight Our principal Secretary of that Our ancient Kingdom of Scotland and Our Lieutenant of New-Scotland who these many years bygon hath been at great charges for the discovery thereof hath now in end a Colony there where his Son Sir William is now resident And We being most willing to afford all the possible means of encouragement that conveniently We can to the Baronets of that Our ancient Kingdom for the furtherance of so good a work And to the effect they may be honoured and have place in all respects according to their Patents from Us We have been pleased to Authorize and Allow as by these presents for Us and Our Successours We Authorize and Allow the said Lieutenant and Baronets and every one of them and their Heirs Male to wear and carry about their Necks in all time coming an Orange tannie silk ribbon whereon shall hang pendant in a Scutcheon argent a saltir azur thereon an Inscutcheon of the Arms of Scotland with an Imperial Crown above the Scutcheon and incirled with this motto Fax Mentis Honestae Gloria Which cognisance Our said present Lieutenant shall deliver now to them from Us that they may be the better known and distinguished from other persons And that none pretend ignorance of the Respect due unto them Our Pleasure therefore is that by open proclamation at the mercat-cross of Edinburgh and of all other head Burghs of Our Kingdom and such other places as you shall think necessar you cause intimate Our Royal pleasure and intention herein to all Our Subjects And if any person out of neglect or contempt shall presume to take place or precedency of the said Baronets their Wives or Children which is due unto them by their Patents or to wear their Cognisance We will that upon notice thereof given to you you cause punish such offenders by Fining or imprisoning them as you shall think sitting that others may be terrified from attempting the like And We Ordain that from time to time as occasion of granting or renewing their Patents or their Heirs succeeding to the dignity shall offer that the said power to them to carry the said Ribbon and Cognisance shall be therein particularly granted and inserted And We likewise Ordain thir presents to be insert and Registrate in the books of Our Council and Exchequer and that you cause Registrate the same in the books of the Lyon King at Arms and Heraulds there to remain ad futuram rei memoriam And that all parties having intress may have authentick copies and extracts thereof And for your so doing these Our Letters shall be unto you and every one of you from time to time your sufficient Warrand and Discharge in that behalf Given at Our Court at Whitehall the 17. of November 1629. years The order of Baronet in England was erected by King Iames the sixth for advancing the plantation of Vlster in Ireland and these Knights have Priviledges and Precedencie much like to those above set down and there being a Contraversy for Precedency betwixt them and the younger sons of Viscounts and Barons managed in