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
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
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
this case viz. The Mayor or Provost of a City being Patron of a Colledge within their own Town His Majesty grants a Commission for visiting that Colledge wherein he names first the Bishop then the Mayor c. The question may be moved whether the Bishop ought to preceed because he is first named or the Mayor because he has most interest being Patron Who may likewise alledge that the Bishops Nomination proceeded onely from the Ordinary Custom of naming Ecclesiasticks first As also If in a Commission of Justiciary three Lords of the Session being named and the youngest of the three being first named in the Commission It may be doubted whether the Seniority formerly acquired in the Session ought to be Observed and give Precedency in Sitting and Voting or if they ought to Sit and Vote according as they are named in the Commission And it may be alledged that the Seniority in the Session ought to be Respected there being a right of Precedency thereby acquired which cannot be prejudged by a Nomination which might have proceeded upon mistake since it is not to be presumed that His Majesty would Degrade any whom He continued otherwise in so eminent a Dignity And as if two Brothers were named in a Commission the elder would sit and vote first though the younger were first named that inversion being presumed to proceed from Errour so ought the same to be observed amongst Judges who are in effect Brothers Some likewise use to Argue in such cases from the reiterated Order of Nomination and think that if the Persons Commissionated be oft named after the same Order that the Order of Nomination in that case is presumed to have proceeded from an express Design of giving Preferrence and this they call argumentum a geminatione actuum But in my judgement it is no infallible Argument for these Repetitions proceed in course QVESTION XXI In the Competition betwixt two who are Advanced at the same time but in different Writes As if two Patents were subscribed by His Majesty to two several Earles on the same day which of the two were to be preferred In answer to this It is generally concluded that though both be granted on the same day and in the same hour the Priority of His Majesties Subscription would prefer him in whose Favours His Majesty did first superscrib which may be cleared by His Majesties own Declaration for he being the fountain of Honour he is the onely fit Judge in all Contraversies concerning it or if his Majesty do not remember the Declaration of His Secretary is undoubtedly to be believed nam in his quae attingunt offâ—ium officium gerentibus est credendum But if both His Majesty and His Secretary were dead some think that there were place left for the succeeding King to gratifie either since the compleating of Rights depends absolutely upon him who is the first Granter And by the Feudal Law and Ours if Resignation be made at the same time in the Superiours hands in favours of several Persons at the same time locus est gratificationi as Craig also tells Us and he may prefer either as he pleases Some contend that where several Patents are granted in the same day the King may prefer either though it be known which of the two Patents were first signed and superscribed For in Law where the difference of time is so little the Law looks upon it as no Difference at all nam de minimis non curat praetor and Albericus who has write a Treatise de minimis is of this Opinion and We see that the Law in other cases brings in equally such as approach so near one another in time nor can the King be said to be functus officio and to have denuded himself of the power of Preference where the right of Preference is so small as when the King superscribes both the Patents at the same time as that he does not intermix any other business nec divertit ad alium actum there indeed it seems that neither can claim Preference by the Priority of Signing since it appears His Majesty had no design of Preferring the one to the other and papers are ordinarly presented to him by accident as they fall in course It may then be alledged that in such dubious cases where Preference cannot be known from the superscription of the Patents and where His Majesty does not Declare the Preference by any posterior Act but leaves both Parties to the Common Law that there he who had the Precedency before these Patents ought to be continued in the Preference since in all dubious cases the Law still prefers the Possessor semper in casu dubio pro possessore respondendum Nor can it be imagined that His Majesty designed to Degrade a person whom He hath actually Preferred But so it is that to postpone a man to him to whom he was formerly preferred is somewhat to Degrade him And since Accumulation and Conjunction of Titles has very many effects in the case of Preference the least effect it can have is to prefer the Haver in such a dubious case I likewise conceive That if two Patents were given at the same time One to a Person who had served His Majesty and much more to an actual Domestick and the other to a Person who had not served nor were no Domestick that in these cases he who had served or were a Domestick would be preferred because of the presumed affection of the Prince and the former Service of the Receiver QVESTION XXII Whether is Precedency to be Ruled according to the date of the Provision Investiture or actual Possession There are three several times from which ordinarly Precedency is computed The first is the time when the Honour is first granted which is called by Lawyers tempus provisionis If the Advancement be of one single Person to a single Dignity or tempus Cooptationis if the Person Advanced be associated into any Society as to be One of moe Judges c. The second period of Time is the time of the Investiture as when a Nobleman is brought in in his Robs The third is the time when he apprehends actual Possession These who write upon this Subject do conclude That Precedency is to be given not from the time of Promotion or Provision but from the entry to Possession so that he who is last Provided or Dignified will have Precedency if he first actually apprehended possession Bald. in cap. cum olim de consuetud Gothofred de Preced cap. 3. num 18. and thus he observes the Courts of Rome Paris and Tholows to have decided and for this he cites l. ult ff de Excusat Tutor l. 1. Cod. Theod. quis in Grad Prefer and since Administration is the end of that Advancement the Act is not Compleat till then Though this hold in Honours which require Administration such as the being in a Judicatory c. Yet it holds not in Honours where no Administration is requisit And thus if
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