Precedency that the eldest Sister has And therefore I ascribe this difference rather to the custome of Nations meerly founded upon the respect due to that Sex During the Marriage the Wife regularly participats of the condition of her Husband by the Civil Law and Law of Nations L. 3. C. de Dignitat Mulieres Honore maritorum erigimus genere nobilitamus and since she was to be sharer in his misfortunes the Law thought it just that she should be sharer in his Advantages And the Wife by the Canon Law is called Socia divinae humanae domus and L. Foeminae ff de Senat. it is said that Foeminis dignitatem clarissimam mariti tribuunt But yet this rule has some exceptions for though in France the wives of those who have their Dignities by Offices enjoy the same Precedency with their Husband together with a communication of his title and thus they say there Madam la Chanceliere Madam la Praesidente Yet it is not so with us who think that Offices are bestowed on Husbands upon a personal account which is not communicable to their Wives and yet in some Temporary Dignities such as that of a Knight-batchelour the Wife participates of the Husbands title and precedency Though I find by the Heraulds Records that this proceeded originally rather from Courtesie than from Law and that of old a Knights wife enjoyed onely his Honours during the Spousals nor were they to be called in Law Dame Alice or Dame Catherine c. after the Marriage was dissolved By our Law likewise If a woman have Precedency by her Birth or Descent she retains still the same notwithstanding she marry a person of inferiour dignity contrare to the Rules of the ivil Law And thus if the Heiress of a Dutchie or Earldom marry a Gentleman she has still the precedency due to a Duke or Earl albeit by the Civil Law L. 8. de Senat. it be exprest that Parentes donee Plebeiis nuptiis fuerint copulatae c. the reason whereof is as Faber observes upon that Law because it were most absurd that the Wife should have more dignitie then her Husband and thus Livius observes that Virginia daughter to a Patrician or noble Roman was debarred from the Honours due to her Birth because she had married a Plebeian And it seems indeed that he being her Head it is most unnatural that any part should be more honourable then the Head Nor can there be any thing more contrare to that superiority given both by the Law of GOD and Man to Husbands nor any means fitter to make a Wife despise her Husband than this is But I think this precedency has arisen from the Feudal Law for the wife having once a noble Fee she cannot forfeit the same by her Marriage and therefore she must retain the dignity that is annexed to it which is incommunicable to her Husband because he is not in Fie But it is observable that if the daughter of a Nobleman marry another Nobleman she will lose the precedency due to her by her Birth though she would not have losed it if she had married a Gentleman and the reason of this seems to be because by marrying a Nobleman she receives another Feudal dignity which suppresses the first I find it observed in Judge Cook lib. 12. fol. 112. that if a Baron dies having divers daughters the King may conferr upon either of them the title And thus the Lord Cromwel having died without heirs Male Burchier who married the youngest daughter was made Lord Cromwel of which we have no example in Scotland for by our Law if the title descend to Females by the Patent the eldest onely can succeed to the title but if it descend not by the Patent to Heirs Female then the King may admit neither to the title or either as he pleases After the Husbands decease the Wife did by the Civil Law enjoy her Husbands precedency during her Widowity but if she marry to a person of inferiour quality she loses that Precedency L. 8. de Senat. which holds with Us and in England And yet sometimes the King allows her the same Precedency by a Letter as he does also to the daughters of Dukes and others who have lost their Precedency by Marriage which Letters or Warrands are direct to the Heraulds Office and Registrated there And the Queen never loses her former Dignity though she marry the meanest person after the Kings death And generally all the priviledges due to the King are communicated to the Queen per L. 31. ff de Leg Augusta autem Legibus soluta non est Principes tamen eadem illi privilegia tribunut quae ipsi habent Notwithstanding whereof Lawyers think that her Bastards are not Noble as the Bastards of Kings nor does the Womb ever nobilitate The Countrey of Campaigne in France onely excepted where it is sufficient that either the Father or Mother be Noble which was allowed to the Ladies of that Countrey upon the killing of all the Nobility at a great fight Papon de Nobles num 3. By the Civil Law also a Widow living leudly loses her former dignity Arg. § Fin. in authent de restit but this holds not with us vide Bon. de Curt. de Nobilitate cap. 12. num 194. It has been doubted whether a mean woman marrying a Nobleman retains the priviledge due to her by her Husband who has been degraded by forfeiture or otherwayes and Corbin cites a decision 27. August 1698. whereby it was resolved that she retains still her former priviledge since crimes are personal which is also our Custom It has been likeways doubted abroad whether a Noblewoman marrying a Plebeian and thereby losing the Precedency due to her Birth if she marry a Gentleman in the second Marriage she will thereby recurr to her first Dignity the person be whom she lost the first Dignity being dead And it was found that she will not for in Law that which is once extinct does not revive and therefore Women in such cases take Letters of Restitution as they call them or procure a warrand from the King for that effect as the custom is with us ut interveniet Principis restitutio quae plebecitatis maculam abstergat Traitte de la noblesse pag. 324. But there would be no place for this question here since with us a Noblewoman would not lose her Precedency by marrying a Plebeian but the doubt behoov'd to be thus stated with us viz. Whether a Noblewoman marrying a Nobleman of an inferiour degree would recover her first dignity she marrying thereafter a Gentleman Or whether a Knight-Baronets Lady marrying a Plebeian could thereafter recover her dignity if she marry a Gentleman For I conceive a Knight-baronets Lady does not like a Noblewoman retain her Precedency when she marries a person of inferiour quality and I think neither of them would recover their former dignity without a special Warrand I find that the Commissioners appointed to regulate Queen Anns Funerals did
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
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.
upon the 20. of May 1619. declare That the Ladies of the Privy Chamber should in time of mourning take their places as if the Queen were living till the Funerals were ended and that the Queens Chamberers should for the present Funeral go before Countesses women without prejudice to Countesses women at any time thereafter It is fit to observe That the Wives and Daughters of all Dukes Marquesses Earles c. do take the same place that the Husbands and Sons do conform to the Precedency formerly exprest pag. 35. And I find in the Heraulds Office of England an establishment settled thus amongst women by Iasper Duke of Bedford and other Noblemen by warrand from Henry the fourth The Wives of Dukes of the Blood Royall The Wives of other Dukes The Wives of the eldest Sons of Dukes of the Blood Royal. The Daughters of Dukes of the Blood Royal. The Wives of Marquesses The Wives of the eldest Sons of Dukes The Daughters of Dukes Countesses The Wives of the eldest Sons of Marquesses The Daughters of Marquesses The Wives of the younger Sons of Dukes The Wives of the eldest Sons of Earles The Daughters of Earles The Wives of Viscounts The Wives of the younger Sons of Marquesses The Wives of Barons that is to say our Lords The Wives of the eldest Sons of Viscounts The Daughters of Viscounts The Wives of the younger Sons of Earles The Wives of the eldest Sons of Barons or Lords The Daughters of Barons The Wives of Knight-bannerets The Wives of the younger Sons of Lords The Wives of Knight-batchelours The Wives of the eldest Sons of Knights-bannerets The Daughters of Bannerets The Wives of the eldest Sons of Knight-batchelours The Daughters of Knight-batchelours The Queens Maids of Honour The Wives of the younger Sons of Banerets The Wives of the younger Sons of Knight-batchelours The Wives of Esqueirs The Wives of Gentlemen The Daughters of Esquiers The Daughters of Gentlemen The Wives of Citizens The Wives of Burgesses From all which it is to be observed that the wife of the eldest Son of any degree takes place before the Daughter of that same degree and both of them take place of the younger Sons wife of the preceeding degree Thus the Lady of the eldest Son of a Marquess preceeds the Daughter of a Marquess and both preceed the Ladies of Dukes younger Sons Item the Wife of the next degree as a Countess preceeds the Lady of the eldest Son of the preceeding degree as of a Marquess and the Daughter of a Marquess 3 o. This holds not only in comparing degrees amongst themselves but also in comparing Families of the same degree amongst themselves as for instance though the Marquess of Dowglas Lady would give place to the Marquess of Huntlys Lady yet the Wife of the Marquess of Dowglas eldest Son would take place from the Marquess of Huntlys Daughter 4 o. Though of old with us in Scotland the Wives of Lords did contend that they had the Precedency from the Daughters of Earles Yet since that Letter written by King Charles the first at his Coronation we follow the custome of England in preferring the Earles Daughter who takes place immediately after her eldest Brothers wife 5 o. Though the Daughter of a Marquess gives place to the wives of the eldest Sons of all Marquesses yet if that Daughter be an Heiress and the Daughter of an elder Marquess then she takes place from the wives of the eldest Sons of all younger Marquesses as Segar observes pag. 240. It is likewise observable that since this Ranking under Henry the fourth there are several new additions For after the wives of Lords eldest Sons and Lords Daughters are Ranked the Wives of Privy Counsellours and Judges Wives of the younger Sons of Viscounts and of Lords or Barons the Wives of Baronets the Wives of Bannerets the wives of the Knights of the Bath and the Wives of Knights-batchelours c. as in the former List. Some considerable Questions concerning Precedency Resolved QVESTION I. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be Considered or what they were formerly To which it is answered with this Distinction viz. Either the Kingdom or other places betwixt which Competitions are Stated remain the same that they were in their Substantials and then the former Precedency is still continued as for instance Though Rome whilst it was a Common-wealth did sometimes admit of a Dictator who had indeed the power of a King yet they remained still the same Common-wealth and therefore being the same in substantials they ought to have the same Degree of Precedency continued Or when two or three Kingdoms are without any alteration United in one as the Kingdoms of Scotland and England were United into the Kingdom of Great Britain under Kings in the same Race who succeeded to both as is fully Demonstrated by Alb. Gentil pag. 82. and this is likewise clear from L. proponebatur ff de Iudiciis l. 24. ff de Legat. 1. But where there is a substantial alteration called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there the former Condition is not considered but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or present condition of the places in Competition is that which ought to be considered And thus when a Kingdom comes to be Conquer'd by a Stranger and by a Strange and Forreign Nation there the State of the Kingdom is absolutely Innovated especially if the Laws of the State be altered And therefore the French Lawyers are of Opinion that the Precedency of England ought onely to be Computed from William the Conquerour Because at that time a Stranger and a Strange Nation did conquer the said Kingdom and the Fundamental Laws of it were much Innovat and if this be not an Alteration none can be For the Antiquity of Land cannot give Precedency for all Land was Created together and there are few Nations so Conquest as that the former people do not remain so that there can be no Precedency upon that account though some who are extravagant in their Zeal for their Countrey doe Argue its Precedency from the first Ages of the World as Vasquius does that of the Spanish Empire in deryving it from Tubal Cain praefatio in Contravers Illust. QVESTION II. Whether a Kingdom becoming a Common-wealth or a Common-wealth a Kingdom does their former Precedency remain This Question has two Branches wherein the Difficulties differ The first is Whether that Town or Place which was a Republick having become a Monarchy or Principality ought it to Retain the Precedency due to the former Common-wealth And that it ought to Retain the same Precedency may be Argued Because when one thing is surrogat in the place of another that which is surrogat ought to have the same priviledge with that in whose place it is surrogat surrogatum subit naturam surrogati But so it is that the subsequent Principality is surrogat in place of the former Common-wealth and
in this Point For some have been of Opinion that those that are born before the Dignity was attained cannot pretend to the Precedency due to the Father for he cannot be said say they to be the Son of a King or Marquess whom a King or Marquess did not beget And since those who are born before a Crime is committed loose not their Dignity by the Fathers committing of the Crime So by the Rule of Contraries he who was Born before his Father was Advanced to a Dignity ought not to participat of that Dignity This they found likewise upon express Laws L. si Senatus Cod. de Dignitat L. Imperalis Cod. de Nupt. and thus Darius was preferred to be King of the Persians to Artabazanes Others do more justly conclude that these are to be Preferred though Born before the Dignity was obtained For if he who was Born in that Condition can be called the Kings Son he must be the Kings eldest Son And it were very absurd that the Father should be Noble and the Son not And if a King had but one Son he could not be King if this were allowed and this is most clear L. Senatoris Filium ff de Senat. where it is said That he is aswell to be called the Son of a Senator who was Begot before the Father was a Senator as he who was Begot after And though this be true as to Succession and as to the Degree of Nobility in general yet many Lawyers are of Opinion that they do not attain to so eminent a Degree of Nobility as if they had been Born after the Father attained to his Nobility For by the former Law si Senator natus ex illustri ante Dignitatem adeptam est clarissimus solum natus postea illustris Others there are who say That these who were Born before may succeed to Honours which descended from old Predecessors but those which were acquired in the Fathers own time should onely descend to such as were Born after these Honors were acquired But now generally in Europe and particularly with Us even those who were Born before the Father attained to any Dignity do participat of his Dignity as if they had been born after the same was acquired in all cases QVESTION XIV Whether ought a Son who is in publick Imployment and Dignified to Preceed a Father who is not It is answered That a Son being in publick Imployment ought to preceed a Father who is not And thus Fabius Maximus commanded his Father to light down from his horse when he was to meet him and was praised for mantaining the Dignity of the Roman Empire in this case And the Son in this case is not a private person but Represenrs the Prince or Common-wealth who are to be preferred to any person and therefore Laurentius Celsi was justly taxed at Venice because he would not meet his Son when he was newly made Duke of Venice least by being discovered before him he should lessen the Perogative of a Father But it may be doubted Whether though this hold in Employments it ought to hold in Titles since in these the Son Represents not the Common-wealth And therefore in these cases the Laws of Nature ought to prevail above the Laws of Honour especially if there be none present but Father and Son But if there be a third person present who will take the place from the Father but not from the Son then the Son must preceed the Father because though he yeeld to his Father yet he should not yeeld to a third Party And it is a general Rule in matters of Precedency that I must preceed you if I preceed him who preceeds you which is not unlike that Maxime used in other parts of Law qui vincit vincentem me vincit me QVESTION XV. Whether may he who has the Survivance of Imployment challenge any Precedency upon that Account To this it is answered That he cannot Claim any Precedency For though there be there the hope of Succession and that the person to succeed be in actu proximo and that likewise it may seem that he is advanced to a Dignity and so ought to have a Precedency suteable to it and that it may likewise seem fit for the Interest of the Commonwealth that these should be Respected and Preferred who are marked out for the Service of the Common-wealth Yet Law nor Custom have given them no Precedency for since they have actually no Dignity nor Power they ought to have no actual Precedency And thus it was found by the Parliaments of Paris and Tholows in anno 1551. 1560. that these who had Survivances were onely to be preferred according to the dates of their actual Admission And so these who were Admitted to be Councellours or Judges after they got their Survivance ought to have the Precedency from them if they did actually administrate before them vid. Maynerd Notabil quest cap. 72. Math. de afflict deciss Neapolitan 1. QVESTION XVI Whether does the Daughter of a Lord who would himself have been an Earl if he had lived take place from the Daughter of a younger Earl It may be alleaged that the Daughter of the Lord should not preceed because an Earles Daughter should still preceed a Lords Daughter and this Ladies Father was never an Earl nor are We to consider futur Honours in the matter of Precedency And as she would not take it in her Fathers time so neither ought she after his death And as her Father himself being a Lord though an Earles Son would not have taken place from the younger Earl so neither should the Lords daughter from the Earles daughter he being a younger Earl then that Lords Father And I find by the Heraulds Records in England that Sir Thomas Lees daughter got a Warrand from the King to take place as a Lords Daughter her Father having died before his Father the Lord Lee which proves that she could not have taken place otherwise and this is commonly receiv'd in England But yet it may be Debated That the Daughter of that Lord should have the Precedency since her Father would have been an elder Earl And though she could not take place during her Grand-fathers time who was the elder Earl yet per jus accrescendi and the right of Representation she comes after her Grand-fathers death to be the Daughter of the elder Earl for Honour is but a part of Succession and therefore as she might have right to her Fathers Succession if she have not Brothers she may by the same reason have Right to the Honours And it were very ridiculous to Argue so as that her elder Brother if she had any might take place as an Earles Grand-child and that she could not take the same place as his Sister and consequently since he would take the place of that younger Earl so should she of that younger Earles Sister or Daughter And the Reason why she comes to a higher Degree of Precedency by the death of her
Grand-father is because by the right of Representation her Fathers Family comes in the Grand-fathers place And to shew that this Argument viz. Your Father had not the Precedency of me therefore you cannot have it of my Daughter is a weak Argument in cases of Representation may appear from this That if it were a good Argument the younger Earl might aswell say to that Lords Son Your Father never took the place of me so neither can you And though it may be Answered to this Argument that the Disparity betwixt the Brother and Sister lieth in this That the Son Represents the Grand-father but the Daughter does not Yet if We consider it nearly even this Answer is Fallacious For though the Daughter Represents not the Grand-father yet the Fathers Family Represents the Grand-fathers and so participats all the Honours of the Grand-fathers Family by that Representation And as the elder Brother becomes an Earl Because if his Father had lived he had been an Earl so she ought to have the Precedency as an Earles Daughter because her Father would have been an Earl for the same Reason QVESTION XVII Whether if the elder Brother be Mad or Dumb c. does the second Brother get the same Precedency as if his Brother were dead I have heard this case much Debated some Contending That such as were Incapable of succeeding were to be Reput as dead per cap. 1. an Mutis Surdis it is expresly declared that such as are born Deaf or Dumb or are naturally Idiots shall not Succeed But others thought that even these are to Succeed but have onely their nearest Agnats given them for Curatours and so they are Heirs And consequently the Precedency is not due to their nearest Friends during their Life and they may have children who would exclude their nearest Agnats I find some Lawyers distinguish betwixt such Defects as are Natural and follow the Havers from their Birth and these Defects do Exclude from the Succession so that the next Heir has the same Precedency as if his elder were dead if the Succession be of Kingdoms or Fews that have a Dignity annexed to them But in private Rights and where the Defects are Accidental they assert that the Right remains with the Heir though defectuus and consequently he retains also the Precedency Tiraquel quaest 23. QVESTION XVIII Which of two or moe Twins ought to Preceed when it is Contraverted which of them was first Born We have a remarkable instance of this Gen. 38. where the Mother desired the Scarlet threed to be bound about his wrest who should be first Born and as to this point Lawyers have differed very much For some think that the Estate ought to be devided amongst the Pretenders if it be divisible of its own Nature Or if it be indivisible the Superiour may prefer either he pleases if the Succession be of a Few Or the Decision may be referred to Lot in privat Persons Or to the Vote of the Representatives of the Kingdom if the Succession be to a Monarchy Some likewise are for the Brothers possessing by turns and alternately and though one Witness be not sufficient generally to Establish the Right of Succession yet if any one Woman was onely present her Testimony would certainly prefer either necessity forming it self into a Law here as in other cases vid. Tiraquel de Iur. primi Gen. quaest 17. QVESTION XIX Whether do Natural Children Born before a Lawful Marriage preceed And should they be preferred to the Children Born in a Lawful Marriage if they be Legitimated thereafter This case did exist in a most illustruous instance in Scotland For King Robert the second having begot a Son upon Elizabeth Mure he thereafter Married Eupham Daughter to the Earl of Rosse and had by her the Earles of Strathern and Athol after which having married the said Elizabeth Mure that Marriage did Legitimate her Children and by Act of Parliament her Children were by a Recognition and acknowledgement of Parliament preferred to the Children Born in the Lawful Marriage The Reasons pro and contra urged in that Debate at that time are now unknown But the Arguments which might have been urged in the case are 1 o. That a Son so Legitimated would seclude without all Contraversie all Uncles and other Agnats Therefore by the same he should Seclude his other Brothers § si quis autem defunctis Authent quibus mod nat cap 1. qui Filii sunt legit 2 o. Legitimation is Retrotracted and drawn back to the time of the Nativity cap. tanta qui fil sunt legit and Legitimation puts the Person so Legitimated in the same Condition as if he had never been a Bastard L. si quis Filio § pen. ff de injust Test. and this is bestowed as a particular Respect upon Marriage and its Sacred Character and to invite men to make Satisfaction for the wrong they have done 3 o. By the Roman Law those that were born in Captivity were not capable of Succession but how soon they were Ransomed and had returned they were restored to the Right of primo-genitor and preferred therein to those who were thereafter born at Rome And therefore since such was the Force even of a Civil and unreasonable Fiction much more ought greater Force to be allowed to Legitimation which is founded upon so Just and Pious Principles 4 o. Quo-ad the Right of Succession the time of the Defuncts death to whom he is to succeed does regulat the quality of the Succession And therefore since the Person Legitimated was capable of Succession the time the Defunct died and was then likewise the eldest he ought to Succeed as eldest whatever his Condition was the time of his Birth L. post Consanguineos § proximam ff de suis Legit. nec enim prius debet de cujusque conditione queri quam haereditas vel legatum ad eum pertineat L. in opportet ff de Legat. 2. 5 o. The eldest Son was always eldest and was onely hindred from this Right of primo-genitor and Precedency by the Legal imperfection of his Birth and therefore this impediment being removed by the same Law which put it his Birth-right continues intire But whether this Priviledge should be granted to such as are Legitimated by the Prince and not by the subsequent Marriage may be doubted And I incline to think it should not because the special Reason of the former Concession depends upon the Favour and Honour of Marriage and this is likewise clear cap. quoniam Auth. quib mod nat vid. Imolam in cap. Grand de sup negl Praelat And my second Argument is That the Prince cannot by any deed of his prejudge third Parties But here such a Legitimation would prejudge the Children of the intermediate Lawful Marriage QVESTION XX. Whether ought the Order of the Nomination to be Observed in Commissions where the Persons are Ranked otherwayes then can be consistent with the Kings former express Grants An instance of this may be given in