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
appoint Sheriffs in their place to command the Counties who are therefore still called Vice-comites Some were likewise appointed to command Towns and so these Comites Vrbium were of a meaner Degree than the Comites Provinciarum But now Earls who have their Designations from Towns are in the same Degree with those who have their Designations from Provinces Counts Palatine were such as had Office in the Kings Palace and had their name à Palatio as is clear by the whole Titles C. de Palavinis sacrar Largit tit de Castren Palatinorum peculio But it is fit to know that these Counts Palatin or Officers of the Palace differed in the Roman Law from Domestici for the Domestici these were properly and onely those who were of the Emperours guards as is clear by l. 3. c. de Protect Domest and Cujac upon that law The Counts Palatin in England were such as had Regal power within their own Jurisdictions nor do I in my reading find any Counts Palatin in Scotland save Walterus Palatinus de Stratherne who designs himself Atholiae Cathaniae Comes he gives his lands of Cortowhy to the Bishop of Brichen in anno 1429. And I believe the Reason why We have so few Counts Palatin in Scotland is because Our Lords of Regality have the same power But properly the Officers of the Kings house are onely now what the Comites Palatini were of old For Regulating the Precedency amongst Earles and Lords with Us K. Iames the 6. did grant a Commission to some Noblemen in March 1606. who upon Citation did pronunce the following Decreit according to which Decreit these Noblemen are at present Ranked and if any of the Noblemen therein prejudged do Reclaim they use to raise a Reduction of the said Decreit before the Session and Adject a Conclusion of Declarator Craving it may be found and declared that they ought to have Precedency from the Noblemen whom they therein cite This Decreet is from its Effect called the Decreet of Ranking whereof this is the Tenor. AT Edinburgh the 5th of March 1606. anent Our Soveraign Lords Letters directed Makand mention Forasmuch as His Majesty and the Lords of His Secret Council Considering the great contentions and differencies quilks many times occurrit and fell out amongst the Nobility of this Kingdom of Scotland anent the Precedency and Priority in Ranking and Voting in Parliament and general Councils and how that this their Contentions lay ever unremembred or agitat but at the very instance of their Meeting at His Majesties Parliaments and Coventions at whilk time there was greater matter of Impashment offered to the Estates to compone their Differences then to intreat upon the principal Subjects for whilk they were assembled His Majesty and the saids Lords therefore being careful to have this Contention removed and the contraversies and elists whilks arises amongst the Nobility for that cause settled and pacified wherethrow the Estates and Nobility being freed and relieved of such matter of Contention they may in Peace Love and Amity concur together and Deliberat upon such matters as shall be entreated and motioned in Parliament hereafter His Majesty for this effect has given his Highnes Commission under the great Seal to a number of His Nobility and who are most indifferent and no wayes suspect of partiality to conveen and call before them the hail Noblemen of this Kingdom of Scotland and according to their Productions and Verifications to set down every mans Rank and Place as in the Commission foresaid past under the great Seal at length is contained and anent the Charge given to Lodovick Duke of Lennox Iohn Marques of Hamilton George Marques of Huntly Patrick Earl of Orkney George Earl of Caithnes Alexander Earl of Sutherland Iames Earl of Murray Francis Earl of Errol George Earl Marishal David Earl of Crawfurd Iames Earl of Athol Iohn Earl of Montrose Iames Earl of Pearth Earl of Monteith Andrew Earl of Rothes Alexander Earl of Dumfermling Archibald Earl of Argyl Iames Earl of Glencairn Iohn Earl of Cassils Earl of Eglington William Earl of Angus William Earl of Morton Iohn Earl of Marr Alexander Earl of Lithgow Earl of Winton Alexander Earl of Home Simond Lord Fraser Edward Lord Bruce of Kinlosse Iohn Lord Forbes Patrick Lord Glames Iames Lord Ogilvy Alexander Lord Spynie Patrick Lord Gray Laurence Lord Oliphant Iohn Lord Murray of Tillibairn David Lord Scoon Iames Lord Lindsey Lord Sinclar Iames Lord Balmerinoch Patrick Lord Lindors Iames Lord Colvil of Culros Iohn Lord Fleyming Alexander Lord Elphingston Alexander Lord Stuart of Ochiltry Thomas Lord Boyd Allan Lord Cathcart Hugh Lord Lowdoun Robert Lord Semple Lord Pasley Iames Lord Abercorn Iohn Lord Maxwel Iohn Lord Harres Robert Lord Sanchar Lord Ross Iames Lord Carlyl Robert Lord Roxburgh Iames Lord Hay of Yeaster Lord Newbottle Iames Lord Thirlstain Iames Lord Torphichen Iames Lord Borthwick Thomas Lord Dirlton Lord Seaton And the Tutors and Curators of the saids Dukes Marquesses Earles Lords if they any have to have compeard before the saids Lords Commissioned at an certain day by gaine and to have brought and produced with them such Writs Evidents Documents and Testimonies as they have or can use for acclaiming that Rank and Place of Precedency and Priority challenged be them before others To have been seen and considered be the saids Lords Commissioners and they to have heard and seen their Ranks and place of Precedency and Priority appointed and set down be them according to their Antiquities of their Productions and that whilk should be verified in their presence and they and every one of them directed to take that place whilk should be appointed and prescrived unto them be the saids Commissioners as said is Certifying all such persons as should not compear themselves or their Procutors in their names That the saids Lords Commissioners will go on forward in setting down every mans Rank according to that which should be verified as said is and should proceed according to the several Instructions given be His Majesty to the saids Lords Commissioners for this purpose and the saids Lords Commissioners their Determination should stand in full force and effect aye and while an Decreit before the ordinar Judge be recovered and obtained in the contrar Likeas at more length is contained in the saids Lords Executions and Indorsations thereof which being called and divers Times and Dyets keeped to that Effect And the said Iohn Earl of Montrose Alexander Earl of Dumfermling Francis Earl of Errol George Earl Marishal and Alexander Earl of Lithgow Compearand personally and the said Alexander Earl of Sutherland compearand be Mr. Robert Learmont their Procutor and the said Earl of Marr compearand be Mr. Thomas Hope his Procutor the said David Earl of Crawfurd compearand be Laurence Scot his Procutor the said Andrew Earl of Rothes compearand be Mr. David Antoun his Procutor the said William Earl of Mortoun compearand be Mr. Thomas Learmond his procutor the said Earl of
Monteith compearand be Graham his Procutor the said Heugh Earl of Eglington compearand be Iohn Bell his procutor and the said Iohn Earl of Cassils compearand be Iohn Hamilton and Gilbert Ross and the said Andrew Lord Stuart of Ochiltry Iames Lord Balmerinoch Iames Lord Abercorn compearand personally the said Lord Lindsey of the Byres compearand be the said Mr. Robert Learmont his procutor the said Iohn Lord Forbes compearand be Iames Fogo his procutor the said Patrick Lord Glames compearand be Mr. Patrick Sharp younger his procutor the said Patrick Lord Gray compearand be Patrick Whyllie his procutor the said Iohn Lord Seaton compearand be Mr. William Livingston his procutor the said Allan Lord Cathcart compearand be George Angus his procutor the said Iames Lord Carlyl compearand be the said Robert Hamilton his procutor the said Robert Lord Sanchar compearand be Creichton his procutor the said James Lord Hay of Yester compearand be Mr. Iames Burchar his procutor the said Iohn Lord Harres compearand be Corbal Cunningham his procutor the said Iames Lord Torphichen compearand be Mr. Robert Learmont his procutor the said Lord Thirlstain compearand be Thomas Fleyming his procutor the said Alexander Lord Spynie compearand be the said Mr. Robert Learmont his procutor And the hail remanent Lords and Earles particularly abovewritten being oft-times called and not Compearand divers Terms and Dyets assigned to them for this effect the Writs Evidents Documents and Testimonies produced be the saids Persons compearand and every an of them acclaiming the Priority and Precedency before others being divers times and at divers Dyets very diligently and exactly Sighted Tryed Examined and Considered be the saids Lords Commissioners and the saids Lords therewith being as also with the Ranks and Places of such Earles and Lords as were Promoted and Created in His Majesties own time well and throughly Advised The saids Lords Commissioners has Decerned Decreited Appointed and set down and be these presents Decerns Decreits Appoints and sets down the Ranks and Places following to the hail Noblemen of the Kingdom to be Keeped Bruiked and Possessed by them in all Parliaments General Councils and publick Meetings hereafter In the first The saids Lords Commissioners Discerns and Ordains the Duke of Lennox to have the first place the Marques of Hamilton the second the Marques of Huntly the third because be the custom inviolablie observed in all Kingdoms the place of Honor amongst Nobility is first in the persons of Dukes and next Marquesses and then in the persons of Earles and Lords and next unto them the saids Lords Commissioners Discerns and Ordains the Earles abovewritten to have Bruiked and Possessed their Ranks and places according as they are here written Ranked and set down in Order following Viz. Angus Argyl Crawfurd Errol Marishal Sutherland Mar Rothes Morton Monteith Eglington Montrose Cassils Caithnes Glencairn Buchan Murray Orkney Athol Linlithgow Home Pearth Dumfermling and Dumbar And sicklike the saids Lords Commissioners Dicerns and Ordains the Lords particularly abovewritten to have Bruiked and possessed their Ranks and Places according as they are here Written Ranked and set down in Order following Viz. Lindsey Forbes Glames Fleyming Salton Gray Ochiltrie Cathcart Carlyl Sanchar Yester Semple Sinclar Harres Elphingston Maxwel Oliphant Lovat Ogilvy Borthwick Rosse Boyd Torphichen Pasley Newbottle Thirlestain Spynie Roxburgh Lindors Lowdoun Dirleton Kinloss Abercorn Balmerinoch Murray of Tillibairn Colvil Culrosse and Scoon And Decerns and Ordains all Earles and Lords particularly abovewritten to Keep Bruik and Posses their Ranks and Places in all times coming according to the Orders and Ranks abovewritten now set down Appointed and Prescrived to them and to make no Question Trouble nor Plea in this Matter to any appointed to have place and rank in the manner foresaid But prejudice alwayes to such Person or Persons as shall find themselves or their Interests prejudged be their present Ranking to have recourse to the ordinar Remeed of Law be Reduction before the Lords of Council and Session of this present Decreit recovered and of their due Place and Ranks be Production of more Ancient and Authentick Writs nor has been used in the Contrary of this Process Summonding all such persons thereto as shall think themselves wrongously Ranked and placed before them And in the mean time this present Determination to stand in full Force Strength and Effect ay and while the Party Interested and Prejudged obtain Lawfully an Decreit before the saids Lords of Council and Session as said is And Ordains these presents to be Insert and Registrat in the Books of Privy Council and an Authentick Extract thereof to be delivered to the Clerk Register and another Extract to be delivered to the Lyon-herauld to be kept be them for the better knowledge and Information of every mans Ranks and Place when the Occasion of their Ranking shall be Presented Extract de libris Actorum Secreti Consilii Act. 8. D. N. Regis Per me Jacobum Primrose Clericum ejusdem sub meo signo subscriptione manualibus It is fit to know that the Earl of Dowglas was by Act of Parliament Declared to have the first Vote in Parliament and the Carrying of the Crown and leading of the Vanguard But K. Iames did in anno 1582. prevail with that Earl to suffer the Duke of Lennox to carry the Crown for that time and in anno 1632. There is a Charter granted to the said Earl in life-rent and to his Son in Fee cum omnibus privilegiis c. specialiter cum privilegio aciem ducendi Coronam gerendi c. But in anno 1633. the said Earl being Created a Marquess it is Declared by Act of Council that he did quite priviledge of having the the first Vote in Parliament upon his Promotion And yet the Marques of Dowglas still pretends that any such Renunciation could not have prejudged the Family since the Granter of that Renunciation was onely a Life-renter his son having been in Fee I find there are some titles of Nobility in England annexed to places so that whoever is in possession of that place has right to the tittle Thus it was found in the case of the Lord Abergavenny that he in possession of the Castle ought to have the title albeit he be not Heir of Blood Their Reason is because it is a Barony-marchiere and it has been found that Baronies and Castles situate upon the Borders of Scotland and Wales belong alwayes to the Owners the words of the Tenour being per servitium Patriae custodiendae It is alleadged as one of the Reasons in that caise that the Owners of lands holding in capite per Baroniam have Precedency albeit they be not next Heirs The next Degree to the Earles is that of Viscount in Latin Vicecomes as being of old Lieutenant to an Earl Vicecomites olim dicibantur quibus castri Dominus Vices suas committebat seu executionem Iurisdictionis But afterwards Our King gave not the Government of Counties or Shires to Earles
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
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
Cassiodor lib. 1. opist 4. well observes Honor hic datur egregiis dum ad Imperiale Secretum tales constat elegi in quibus reprehensionis vitium non potest inveniri But yet I find the Secretary onely named in the former Confirmation inter Familiares Of old I find he was Stiled Clericus Regis though some Interpret this Clericus Regis to be either Clerk-Register or the Kings Confessor and Clerk to His Closet and some that he was Almoner We have no Master of Requests now that charge being swallowed up by the Secretaries Office Their Office with Us was as at Rome To represent to the King the complaints of the People Referendarii says Cassiodor lib. 6. dolores alienos asserunt conquerentium vota satiant per eos Iudices corriguntur I find that Advocatus Fisci now Our Kings Advocat or Atturney-General was dignified with the Title of Comes which is now Earl l. jubenius i. de Advoc. divers jud and with the Titles of Clarissimus Spectabiles which was only bestowed on the chief Nobility l. 4. 6. eod tit and from this seems to have flowed Our calling them Lord Advocat And the French calling them Messire which Title only the Chancellor and Advocat there get Upon this Officer Rome in the Reign of Claudius the Emperour bestowed so much Honour that he said Tantum Honoris Authoritatis concessisse procuratori Caesaris ut eum suis Legibus adaequaverit volueritque ut quod ipse statuisset perinde ratum esset ac si ab ipso foret constitutum And of old they were still of the Order of Knights for Tacitus in the life of Agricola says utrumque avum procuratorem Caesaris habuit quae equestris Nobilitas est The Kings Advocat is with Us as in France Consiliarius Natus that is to say is by vertue of his Office a Privy Counsellor in a more peculiar way than the rest For I find by the Records of Council in Queen Maries time that the Register and Justice-Clerk are expresly mentioned in the Commission of Council but the Advocat is in all the Sederunts though he be not named in the Commission And though with Us it was not allowed to the Kings Advocat till Sir Thomas Hope's time that he should be present at the Lords advising of Causes where the Advocat was himself Interested Yet I conceive in Causes which he pleads meerly upon the Kings Account he ought to be present even when the Cause is advising This was allowed Advocato Fisci for Trajan writing to Plinius Commands eos adhibere in Consilium à Praesidibus cum de causa Fiscali agitur which explains very well L. 7. de Iur Fisc. Where si Fiscus alicui status controversiam faciat Fisci Advocatus adesse debet quare si sine Fisci Advocato pronunciatum sit divus Marcus rescripsit nihil esse actum ideo ex integro cognosci opportere Of which Office the Learned Budeus gives this Character Magistratus is est in quem omnes suas actiones Princeps Populus universi transcripserunt asylum Legum arx Iustitiae innocentiae vim passae aut Iudicio circumventae propugnaculum intercessor rerum malarum suasor rerum bonarum praesentis semper animi Actor Defensor de sententia Iuris Equitatis I find that though per L. nemo C. de assessor no man can be both a Judge and Advocat yet the Kings Advocats in France have been allowed to be Judges at the same time they were Advocats for it was thought that the Office of Kings Advocat did naturally participate both of the Judge and Advocat and so was not inconsistent with the Imployment of a Judge l. ult c. de Advocat Fisc. and this was so decided by the Parliament of Paris in Iune 1605. And from this We probably in Scotland took occasion a little after that time to make Sir William Oliphant and of late Sir Iohn Nisbet both Advocats and Lords of the Session The Almoner with Us has no Precedency for ought I know though in France Le grand Aumosnier is thought to be an Officer of the Crown He is very oft a Witness in all Our Charters granted be Our Kings and some think that Clericus noster was Almoner I find that Cockburn of Lanton who was also custos magni Sigilli in the second year of King Robert the thirds Reign is made heretable Ostiarius nostri Parliamenti that is to say Usher of the Parliament The Lyon and he does Debate who shall go next to the King or His Commissioner in Parliament and Conventions The Usher pretending that if he behoov'd to go after the Lyon he behooved to go before the Heraulds and so he behooved to walk between the Lyon and his Brethren which were not decent though both in England and with Us I find that several Degrees of Persons do in all Processions walk between the Garter or Lyon and his Brethren Heraulds Likeas it is implyed in the nature of the Ushers office that he should immediately usher him to whom he is Usher but in England I find that at the Cavalcad when His Majesty entred London in anno 1660. and at His Coronation Garter King of Arms did walk in the midst having the Mayor of London on his left hand and the Knight of the Black-Rod on his right And the Author of Les Memoirs des Ambassadeur tells Us that in anno 1629. at the Procession for Celebration of that solemn Peace betwixt France and Spain the King of Arms did walk immediately before the French King Le Roy d'armes marchant immediatement devant Le Roy. I am likewise informed that in England the Precendency runs thus King of Arms Usher of the Black-Rod Master of Ceremonies and after him the Gentlemen of the Privy-Chamber c. The Title of Duke came from Dux a Leader and Commander of an Army and was at first a Title of Office but now is a Dignity given by Kings and Princes to men of Blood and good Merit And with Us the Prince of Scotland as is already said is Duke of Rothesay The word Marquess was first appropriate to the Lords of the Marches and Frontiers but is since become a Title of special Dignity betwixt a Duke and Earl Earl came from the Saxon word Ear-ethel which was abridged to Ear-el and afterwards by Abbreviation Earl with the Dutch called Eorle and at this day the Germans use the word Grave for it They are in Latine called Comites with Us because in the Roman Empire Comitatus was called the Court of the Prince l. 43. de Testament Militar l. 13. ff de re Militar and those who attended the Emperor were called Comites or his Companions They were appointed to be Governours of the several Countrys of the Empire which were from them called Comitatus or Counties and Earls are to this day designed Earls of such a Shire But the Kings thereafter being desirous to have their Subjects depending immediately upon themselves did
Earl of Forfar His Eldest Son Lord Wendal Midleton Earl of Midleton His Eldest Son Lord Clearmont Scot Earl of Tarras His Eldest Son Lord Alemoor Gordon Earl of Aboyn His Eldest Son Lord Glenlivet Boyd Earl of Kilmarnoch His Eldest Son Lord Boyd Cochran Earl of Dundonald His Eldest Son Lord Cochran Dowglas Earl of Dumbritan His Eldest Son Lord Dowglas of Attrick Keith Earl of Kintore His Eldest Son Lord Inverury Sinclar Earl of Caithnes His Eldest Son Lord Berrendule VISCOUNTS Cary Viscount of Faulkland Constable Viscount of Dumbar Murray Viscount of Stormont Gordon Viscount of Kenmore Arbuthnet Viscount of Arbuthnet Crichton Viscount of Frendraught Seton Viscount of Kingston Macgil Viscount of Oxenford Livingston Viscount of Kilsyth Osburn Viscount of Dumblane LORDS Forbes Lord Forbes Fraser Lord Salton Gray Lord Gray Cathcart Lord Cathcart Sinclar Lord Sinclar Dowglas Lord Mordington Semple Lord Semple Elphingston Lord Elphingston Oliphant Lord Oliphant Fraser Lord Lovat Borthwick Lord Borthwick Ross Lord Ross Sandilands Lord Torphichen Lesly Lord Lindors Elphingston Lord Balmerinoch Stuart Lord Blantyre Areskin Lord Cardross Balfour Lord Burleigh Drummond Lord Madderty Cranston Lord Cranston Melvil Lord Melvil Napier Lord Napier Fairfax Lord Cameron Richardson Lord Crawmond Macky Lord Rae Forrester Lord Forrester Forbes Lord Pitsligo Mackleland Lord Kircudbright Fraser Lord Fraser Hamilton Lord Bargeny Ogilvy Lord Bamff Murray Lord Elibank Galloway Lord Dunkel Falconer Lord Halkerton Hamilton Lord Bethaven Sandilands Lord Abercromby Carmichal Lord Carmichael Sutherland Lord Duffos Rollo Lord Rollo Ruthven Lord Ruthven Colvil Lord Colvil Mackdonald Lord Mackdonald Bellenden Lord Bellenden Lesly Lord Newwark Rutherfurd Lord Rutherfurd Ker Lord Iedburgh Weems Lord Bruntisland ¶ It is to be observed that the eldest Sons of Viscounts and Lords are designed Masters by their Fathers Titles Lord Thesaurer-deput Lord Register Lord Advocat Lord Iustice-Clerk This is the Precedency stated by the present Rolls of Parliament albeit it is not acquiesced in by all the Nobility For the Earl of Sutherland contends with all the Earles who are ranked before him and generally such as are dissatisfied with these Rolls do protest whilst the Rolls are called against such as they conceive are unjustly ranked before them Sometimes also the Son has a different Precedency from what was possessed by his Father As the Earl of Lothian who now as succeeding to his great Grand-father by the Mother comes to have his Precedency next to the Earl of Wigton though his Father taking place by a new Patent was ranked as in the above written Rolls The Justice General pretends to the same precedency with the Lord Chief Justice of the Kings Bench in England by a report made by the Lord Thesaurer in the Kings name the 17. Iune 1637. but neither is the Letter to which this report relates extant nor has he been in possession since And it is fit to observe that notwithstanding of what is said before page 42. by a Servants mistake that the Lord Privy-seal takes place with us as in England The Order of Baronet in Scotland was erected for advancing the Plantation of Nova Scotia in America and for settling a Colony there to which the Aid of these Knights was Designed The Order was onely intended be K. Ia. 6. before his Death for in his first Charter of Nova Scotia in favours of Sir William Alexander 10. Septem 1621. And in another Charter granted to Sir Robert Gordon of Lochinvar of a part of Nova Scotia Designed the Barony of Galloway 8. Novem. 1621. there is no mention made of this Order So that the same was onely erected by K. Charles 1. anno 1625. In the several Patents granted to Baronents His Majesty did dispone to each of these Knights a certain portion of land in Nova Scotia erecting the same in a free Barony with great and ample priviledges unnecessary to be insert here And moreover for their encouragement did Erect Creat Make Constitute and Ordain that Heritable State Degree Dignity Name Order Title and Stile of Baronet to be enjoyed be every of these Gentlemen who did hazard for the good and increase of that Plantation And so preferred them to that Order and Title Creating them and their Heirs Male heritable Baronets in all time coming with the Place Preeminency Priority and Precedency in all Commissions Breeves Letters-patents Namings and Writes and in all Sessions Conventions Congregations and places at all times and occasions whatsomever before all Knights called Aequites aurati all lesser Barons commonly called Lairds and before all other Gentlemen Excepting Sir William Alexander His Majesties Lieutenant of Nova Scotia who with his Heir their Wives and Children conform is not onely excepted in each of these Letters-patents granted to the Knights his Consorts But likewise the Charter granted to himself be King Charles 1. 1625. did bear expresly this exception and provision As also excepting Knights-Bannerets who should be Created under the Royal Standard in His Majesties Army and in open War the King himself being present and that during the Bannerets lifetime onely And with Precedency before all of the same Order whose Patents are of a posteriour date His Majesty did moreover Declare and Ordain That the Wives of these Knights and of their Heirs Male should have the Precedency aswell after as before the deaths of their Husbands if they should happen to survive before the Wives of all those of whom the Knights Baronets and their Heirs Male had the Precedeny and even before the Wives of Knights-Bannerets before excepted the Degree of Baronet being heritable And also that the Children Male and Female of the Baronets should take place before the Bairns Male and Female respectively of all persons of whom the Baronets and their Heirs Male had the Priority And likewise before the Children of the Bannerets and that the Wives of the Sons of the Baronets and of their Heirs Male should preceed the Wives of all persons whom their Husbands might preceed and that aswell their Husbands being dead as living And further His Majesty did Declare and Promise That whensoever the eldest Sons and appearand Heirs Male of the Baronets should attain to the Age of twenty one years they should be by His Majesty and his Successours created Equites aurati or Knights Batchelours without payment of any Fies or Dues for the same providing they should desire it But here it is to be observed that some of the eldest Sons of Baronets pretend to the title of Knight at their Majority be vertue of this clause without any previous desire or dubbing which certainly is an errour for if they will not be at the pains to desire it of His Majesty or His Commissioner they should not assume it Likeas His Majesty did Declare and Ordain That the Baronets and their Heirs Male should as an additament of Honour to their Armorial Ensigns bear either on a Canton or Inescutcheon in their option the Ensign of Nova Scotia being argent a cross of St. Andrew azur the Badge of
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
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