presence of King Iames it was determined in favours of the younger sons of Viscounts and Barons But at the same time it was declared That such Bannerets as should be made by His Majesty or Prince of Wales under the Kings Standard displayed in an Army Royal As also the Knights of the Garter Privy Counsellours Master of the Court of Wards and Liveries Chancellour and Under-Thesaurer of the Exehequer Chancellour of the Dutchy Chief Justice of the Kings Bench Master of the Rolls Chief Justice of the Common-pleas Chief Barons of Exchequer and other Judges and Barons of the degree of the Coif should have place and precedency both before the younger sons of Viscounts and Barons and before all Baronets by which some alterations may appear from the Ranking appointed by Henry the fourth Beside what has been formerly observed in the description of Knights Baronets I find that of old a Banneret or a Ban-rent has been with us a title higher than a Baron for by Act 101. Parl. 7. Ia. 1. Barons may choose their own Commissioners but Bishops Dukes Earles Lords and Ban-rents are to be summonded to Parliament by the Kings special precept And it is probable that these Ban-rents were Knights of extraordinary reputation who were allowed to raise a company of men under their own Banner but now it is commonly taken for such as are Knighted by the King or Prince under the Royal Standard in time of War But I conceive that those could not now sit in Parliament upon the Kings precept the former Act of Parliament being in desuetude They have the precedency from Baronets though their Wives have not this being but a temporary Dignity and the other an heritable Barons in England are Lords with us but a Baron with us is properly he who has power of pit and gallows And yet of old I conceive that Lords and Barons were the same for the Statutes of K. Robert 1. bear to be made in his Parliament holden at Scoon with Bishops Abbots Priors Earles Barons and others his Noblemen of his Realm And in Our old Original Acts of Parliament I find that the Lords and Barons are put in one column undistinguished and under the common name Barons And in the first Parliament of K. Ia. the 4th I find the Master of Glames i. e. the Lord Glames eldest son sitting inter Barones Now the Lords are called the Great Barons and the rest are called Small Barons in the 101. Act. 7. Parl. Ia. 1. and ever since But yet I find by the 166. Act. 13. Parl. Ia. 6. every Earl or Lord payes 2000. pounds for Lawborrows and every great Baron 1000. pounds but by great Baron there is meant a Baron of a considerable estate because that Act was to proportion the Surety to be found to the estate of him who finds the Surety The old Barons or Lairds amongst us especially where they are Chiefs of Clans or the Representatives of old Families that were Earldoms as Pitcurr is of the Earl of Dirleton and as Chief of the name of Halyburton have never ceded the Precedency to Knights-Baronets much less to ordinar Knights Though the other pretend that a Baron is no name of Dignity and that Knights-Baronets have a special priviledge that there shall be no degree betwixt them and Lords except the Bannerets And though militia non est per se dignitas Chassan fol. 344. yet generally it is believed that next to Knights-Baronets succeed Knights-Batchelours and next to them our Lairds or Landed-Gentlemen though a Laird in effect is but the corrupt word of a Lord. Amongst such as profess Sciences the Ranking goes thus uncontravertedly 1 o. Such as profess Theology 2 o. Such as profess the Canon-Law 3 o. The Civil-Law 4 o. Philosophy 5 o. Medicin 6 o. Rhethorick 7 o. Poescy 8 o. History 9 o. Grammer 10 o. Logick 11 o. Arithmetick 12 o. Geometry 13 o. Musick 14 o. Astronomy Chassan de gloria mundi pars decima And amongst these such as are Doctors preceed these that are not and amongst Doctours the priority goes by Age. In Towns These who inhabit Cities are preferred to such as inhabit Burghs and generally those in the Metropolitan or capital City are preferred to all the rest And those who have born Magistracy are even when their Magistracy is over preferred to all others And so far is this Precedency observed that 1 o. A younger Alderman or Bailie takes not Precedency from his Senior because he is Knighted or as being the elder Knight as was found in the case of the Alderman Craven who though all the rest of the Alderman were Knighted at the Coronation of King Iames kept the precedency formerly due to him as Senior Alderman But though this hold not onely amongst Aldermen but that even all Knights of the Countrey being Burgesses of a Town do cede to these who have been their Magistrates in it as to publick meetings relating to the Town Yet it is doubted whether such a Knight will be oblieged to give place to an Alderman or Baily in a neutral place But it is determined in the Heraulds Office of England that all such as have been Mayors of London that is to say Provosts with us do take the place of all Knights-batchelours every where because they have been the Kings Lieutenants It is there likewlse remarked That Sir Iohn Crook Serjeant at Law was Knighted before any other Serjeant his Ancient and standing upon Precedency by reason of his Knighthood It was adjudged against him by the Judges viz. that he should take place according to his Serjeancy and not after his Knighthood yet his wife took her place of a Lady before other Serjeants wives The Members of Courts do take place amongst themselves according to the precedency of the Courts where they serve as the Clerks of the Privy Council take place of the Clerks of the Session In Families likewise the Chief of the Family takes place of any Gentleman of the Family And though generally it be believed that Gentlemen have no precedency one from another yet Reason and Discretion do allow that a Gentlman of three Generations should cede to a Gentleman of ten if there be not a very great disparity betwixt their Fortunes and that for the same Reason almost that a Gentleman of three Generations claims precedency from any ordinary Landed-man who was newly acquired his lands CHAP. IX The Precedency due to Women WOmen before their Marriage have Precedency by their Father but there is this difference betwixt them and the Male-children that the same Precedency is due to all the Daughters that is due to the eldest though it is not so amongst Sons and the reason of the difference seems to be that Daughters would all succeed equally whereas the eldest Son excludes all the rest But if this be the adequat and true reason then where the Estate and Honours are provided to the eldest Daughter onely excluding the rest they ought not to have the same
two be Advanced to be Earles he whose Patent is first past the Kings hand will have the Precedency though the other serve in the first Parliament or be present there a day before the other or have his Patent first Registrat for it is the King and not his Clerk that makes Noble but yet this is Debated by La Rocque cap. 66. Lawyers likewise Observe that the former Rule preferring him who has first Served to him who was first Provided or Invested holds good though he who was first Provided or Invested was not in mora and did not delay to take Possession but was hindred by some extrinsick Impediment such as Sicknes And this they say was decided the 27 of April 1594. in Rota Romana and this is observed to be the common Opinion by Gonzales ad regulam 8. Cancel and this they prove by the Analogy of other Feudal Rights which being to be compleated by Possession the Law considers not whether the Party who should have possest was hindred from attaining to Possession but who first attained to Possession QVESTION XXIII Whether does the Dignity of him who bestows the Honour Regulate the Precedency that is bestowed among Equals It is answered That it does all other things being Equal and thus those who have the same Dignity from a King as for instance Those who are made Knights by a King are preferred to those who are made Knights by a Common-wealth And amongst Common-wealths those who are made Noble by the greater Common-wealth are preferred to those of the same Degree made Noble by a lesser Common-wealth Gloss. ad L. 2. de Alb. scribend Menoch Consil. 126. Lauderus de Dignitat Conclus 32. and this holds so farr that the youngest Knight admitted by the one is preferred to the eldest admitted by the other But Knights admitted by a Commissioner are not upon this account to be postpon'd to those made by the King himself since they are in the Construction of Law admitted by the same Dignity qui facit per alium facit per se. It is very observable that the French King prefers the Dukes made by the Emperour not onely to the Dukes made by himself but even to the Ambassadours of Forreign Kings though I think this is allowed onely to these Dukes who are Sovereign Princes By this rule likewise it is that the Clerks of a Superiour Court are preferred to these of an Inferiour since they derive their power from a higher Jurisdiction QVESTION XXIV Whether can a Prince Nobilitat any of his own Subjects in the Territories of another Prince It has been Argued that he cannot because he cannot bestow Honours but where he is a Prince but so it is that he is not a Prince at least hath no power in the Territories of another Prince Which Opinion seems to be founded on L. ult ff de Off. praefect Vrb. and therefore Sigismund the Emperour having designed at Lions in France to Creat the Earl of Savoy Duke of Savoy he was resisted by the Governour of Lions till the French King should be advertised And Charles the fifth having whilst he was Emperour Created some Lords and Knights in France though at the desire of Francis the first the French King their Creation being thereafter Contraverted by their Peers It was found Illegal But yet I incline rather to Noldus's opinion de Nobilitate c. 2. who thinks that a Prince may Exercise any Voluntar Jurisdiction without his own Dominions especially in Relation to his own Subjects L. 1. ff de Officio pro Consul Bartol in L. 1. Col. 9. La Rocque triact de la noblesse c. 76. and if they should attempt against his Life they would be guilty of Treason though the attempt was made in a Forreign Nation Lawyers likewise have allowed to Princes all manner of Jurisdiction even within the Dominion of others And therefore I much admire how these Honours that were bestowed by Charles the fifth could have been thereafter contraverted if the persons to be Dignified were the Emperours own Subjects but I believe they were not QVESTION XXV Whether when the President of any Court or Incorporation is absent may the eldest Member Convocat the Incorporation And who ought to perceâ—d in that Case To the first of these questions it is answered by some Lawyers That the President being absent the eldest Member in Dignity may by his own Authority call the meeting Convocare Collegium as they call it and of this opinion are Hostiensis Panorm Bald. ad cap. 1. de Maior Obed but others are of opinion that the Major part has only right to conveen the rest in that case Innocent ad cap. 2. de operi nov nunc But a third Sect of Lawyers do for agreeing the former opinions assert that in Ecclesiastick meetings the eldest may by his own Authority call the rest but not so in Laick meetings and the reason of this Distinction seems to be because Church-men are bound to give more Obedience to their Seniors and there is less fear of Design amongst them both because they are presumed to be more disinterested and because in their meetings their Posterity is not to gain But without any Distinction I should think that the eldest may always Convocat for there may be hazard in delay if the greater part were requisit for the question still recurrs who should call the greater part nor can there be great hazard in calling for the onely hazard is the packing of a Quorum and this may be prevented by imposing a necessity upon those who meet to advertise the rest To the second question it is answered That this is much to be determined by Custom and Our Courts in Scotland suffer not the eldest to preceed but choose alwayes one to preceed in the absence of their constant President and this seems to be most Reasonable because every Member of a Court is not ordinarly fit to be a President And yet there are some Lawyers who distinguish betwixt such Courts to whom the chief Magistrat has chosen no constant President and in these they say the eldest cannot preceed though they say he ought to preceed in these Courts where the King has choos'd a President for as in these the members cannot choose a constant President so neither can they choose a Vice-president since surrogatum subit naturam surrogati whereas the eldest is a President by the Magistrates tacit Election since he has that Seniority from the King or supream Magistrate which does prefer him to be President and we see that amongst Souldiers the eldest Officer alwayes commands when the superiour Officer is absent QVESTION XXVI Whether may a Peer be Degraded because he hath not an Estate sufficient to entertain a Person of his Quality And by whom may he be Degraded It would seem that a Peer cannot be Degraded though he hath not a suteable Estate because the King may Nobilitate a person that wants an Estate and Nobility being a right derived from
Blood it seems to have no Dependance upon Riches and as the having of Riches gives not Nobility so neither should the want of them take it away Likewise this is very express by the Roman Law Lege humilem Cod. de Incest nupt where it is said humilem abjectam foeminam non eam esse quae licet pauper sit ab ingenuis tamen parentibus nata est And that this hath been very anciently the opinion of the World is clear from that of Euripides apud Stob. serm 86. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But I find that Cook 4. inst folio 355. and the Authour of Ius Imaginis pag. 25. conclude that Poverty is a good cause for the Degrading of a Peer an instance whereof they give in George Nevil Duke of Bedford who was Degraded by Act of Parl. 17. Edward the fourth of which Act this is the tenour And forasmuch as it is openly known that the said George hath not nor by Inheritance may have any livelyhood to support the said Name Estate and Dignity or any name of Estate as oftentimes it is seen that when any Lord is called to high Estate and have not livelyhood convenient to support the same Dignity it induceth great Poverty and Indigence and causeth oftentimes Extortion Embracery and Maintenance to be had to the great trouble of such Countries where such Estate shall happen to be inhabited Wherefore the King by Advice of his Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same Ordaineth Establisheth and Enacteth that from henceforth the same Erection and making of the same Duke and all the names of Dignity to the said George or to John Nevil his Father be from henceforth void and of none effect c. From which Act three things may be well observed First That the said Duke had not any Possessions to support his Dignity yet his Dignity could not be taken away from him without an Act of Parliament Secondly The inconveniencies appear where a great Estate or Dignity is not accompanied with a livelyhood Thirdly This is a good Cause to take away the Dignity by Parliament For reconciling which opinions it seems indeed that though a person who is noble by Birth should fall into poverty yet that poverty can no more Degrade him from his Nobility then it can taint his Blood but though it cannot root out that Noble Character from his Blood and make him no Gentleman yet it seems a good reason why he may be Degraded from being a Peer of the Realm For the being a Peer is no necessar effect of Blood but a mark of the Royal bounty bestowed for the better Government and Advantage of the Kingdom Earles being by their Original Praepositi Comitatus or Commanders of the County and Counties or Shires are so called because they are the Governments of a Count or Earl And therefore when the King and Parliament find that they are not fit to bear this quality they may justly take away that Honour that was given nor can there be any thing so inconvenient as that these should represent the Kingdom in its greatest concerns and burden it with with Taxes who have no interest in the one nor can bear any share in the other And that these Feudal Dignities and markes of Nobility may be taken off by the loss of the Fews is clear by Bartolus in L. inam Cod. de Dignitatibus and that this is the custome of Sicily is clear Afflictus Col. non in 6. not It may likewise seem reasonable that as the King onely can bestow Nobility so that it should be onely proper for him to Degrade And since he may Create any Nobleman though he be poor so he may continue him so notwithstanding of his Poverty specially seing the being a Peer is but to be the Princes Counsellour nor can any judge who are fit to be his Counsellours but himself nor is the Parliament any thing but his great Council But since this Degradation is a kind of Forfeitur it seems that the Parliament onely can be Judges therein since the King does not use to Forfeit by his own Authority And though the former Arguments may prove that a Peer cannot be Degraded for poverty except the King pleases which is certainly true since no Act of Parliament can pass without his Royal consent yet they prove not that the King may Degrade a Nobleman by his own Authority except he may Judge all cases immediately by himself QVESTION XXVII Whether is a Patent never made use of by the Father valid after his death It is answered That though the Patent being granted to such a man therein Designed seems to die with him and that the Father dying with this quality cannot transmit it to his Son yet it is certain that the Patent is valid to his posterity For except where it was Designed to be personal it is conceived in Favours of a man and his Heirs and thus it was judged in the cause of Quesnel Advocat in Rowan 4. May 1623. vid. La Rocque cap. 67. QVESTION XXVIII Whether if the Father use any low or base Trade which Derogates from Nobility will his Children and Descendents loose it thereby In answering to this case We must distinguish betwixt such as derive their Nobility from their Fathers onely and some think that in that case the misbehaviour of the Father does extinguish the Nobility of the Race and that the Descendants are no more Noble except they be restored by an express Gift Or otherwise the Nobility of the Race has descended from a long Series of Predecessours and then the Fathers Deed does not prejudge them since they do not owe their Nobility to him and the Prince having Nobilitat such a man and his Posterity they owe their Nobility to the King and derive it from him equally with the Father which Distinction I find in the Learned Faber Cod. L. 9. T. 28. Def. 1. But it seems that by this last reason Even that Nobility which is begun in the Father cannot be lost by his fault And therefore some Lawyers have been of Opinion that that Nobility which descends by immemorial possession and which flows not from a particular priviledge and Concession can never be taken away by the Fathers baseness or crime Warnaesius tom 1. responsorum de Iure Pontificio Consil. 20. num 7. and thus we find in the Roman Story that Marcus Emilius Scaurus was found not to have lost his Nobility by his Fathers becoming a bearer of Coals Curt. conjectur jur civil lib. 2. cap. 20. and others think that as it is sufficient for acquiring Nobility that the Grand-father and Father have been repute Noble So by the rule of Contraries it is sufficient for extinguishing Nobility that the Father and Grand-father have been repute Ignoble And though the rights of Blood cannot be lost by prescription yet Nobility may be lost as all other priviledges can by not exersing or owning
not to restore the Precedency in prejudice of those who had acquired titles betwixt the Forfeitour and Restitution A clear instance whereof we have in the Earl of Crawfurd who being Forfeit for Rebelling against K. Iames the 2. at the Battel of Brichen and being thereafter restored he was not restored so as to take place from the Earl of Huntly But yet it is observable that the 4. Act. p. 16. p. 87. I. 6. which appoints restitutions per modum gratiae not to prejudge third paties speaks onely of lands possessions and such other parts of the Estate forfeited but speaks not of Honours and therefore some conclude that persons forfeited may be restored to the Honours of their Family notwithstanding the Precedency by the rest of the Nobility in the interim which is the rather received amongst us that the King may with us creat an Earl with the Precedency from all others as he could have done in England before the statute of Hen. 8. For I find by the Herauld records that Edmond of Hadham is created Earl of Richmond quod habeat sedem in Parliamentis alibi proximum ducibus And Henry Beauchamp Earl of Warwick is made primus Comes Angliae whereas he was formerly almost last and thereafter is created Duke of Warwick with this addition That he shall go Mate-like with the Duke of Northfolk and above the Duke of Buckingham And since our Kings had this prerogative and that they have not restricted themselves they might have it still though they should use it sparingly QVESTION XXXVI Whether have the Ambassadours of Monarchs the Precedency from other Monarchs or Princes themselves if personally present even as the Kings would do whom they represent And if in all cases an Ambassadour ought to have the same Precedency that is due to his Constituent To this it is answered That though an Ambassadour represents the Monarch from whom he derives his Commission and that some learned Lawyers do upon that account assert that they are to have the same Precedency that is due to their Master and so to be preferred to all Kings and Princes though present to whom their Constituents would have been preferred Paschal de Legat. cap. 38. yet the custom of Nations has run contrar to his opinion in preferring even inferiour Kings and Princes And it is decided amongst the Princes of Germany Tit. 25. Aureae Bullae Car. 4. And in anno 1542. the Ambassadours of Charles the fifth Emperour were decerned to cede the Precedency to Ferdinand King of the Romans and the reasons are 1 o. Because Princes found it their Interest to have no Subject compete with them or to have their own presence lessened by such marks of Disrespect 2 o. In a Prince who is present there resides True and Original Majesty whereas an Ambassadour is onely dignified with a Supposititious and Representative Honour shining if I may so say with borrowed rayes And of this opinion are Brunus de Legat. lib. 5. cap. 8. and Costa Consil. 44. though Zouch de Iure inter Gentes seems to favour Paschals opinion It may be likewise doubted whether an Ambassadour does retain the same Precedency due to him as Ambassadour when the Prince who sent him comes to the place himself And this was debated by the Earl Marishal who was sent over Ambassador to Denmark when K. Ia. 6. went over in person thereafter and brought over Chancellour Maitland with him who challenged the Precedency from the Earl Marishal alleaging that an Ambassadours Power evanishes upon his Princes appearance Which debate was decided by King Iames in favours of the Chancellour albeit the Earl contended That as his Ambassie ceased upon the Kings coming thither so did the others Office as Chancellour cease in a forreign Kingdom and therefore that he should have preceeded as being an Earl The former opinion preferring inferiour Princes when Personally present 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is so much the rather true that Ambassadours are not when they come to visit the Judicatures of the Nations where they preceed allowed the same Precedency And generally it is given as a rule by Lawyers that in locis actibus Iudicialibus Legatis praecedentia solita non servatur non pro dignitate Regis aut alterius a quo ablegati sunt Gothofred de Iure praecedentiae cap. 7. num 47. so that though Kings themselves would sit above all these Judicatures yet their Ambassadours sit but among them Thus the Venetian Ambassadour was onely placed in the Parliament of Paris after the Bishops as Rupan observes lib. 7. cap. 10. Though Ambassadours have the same Precedency that is due to their Constituents yet Agents and Residents of Princes have not nor has the Popes Nuncio the Precedency that is due to an Ambassadour Gothofred ibid. for these in effect are sent oftentimes to prevent the Debates that might-fall amongst Ambassadours and therefore the French King sends very rarely his Ambassadours to the Emperours Court because he knows that Court would give the Spanish Ambassadours the Precedency which he thinks is due to his Ambassadours QVESTION XXXVII Whether have such as have been Ambassadours or have been in such honourable Imployments any Precedency thereby when their Imployment is ended To which it is answered That though after an honourable Imployment is over whether by Dimission or by the expyring of the Commission the Precedency thereto annex'd ceases with it Yet the Prince sometimes gratifies the person with a continuance of some Precedency and Honour And in the Records of the Herauld Office in England I find that in a Court Marishal Sir Dudley Diggs and Sir Thomas Smith were adjudged to have the Precedency from other Knights-Batchelours of their own Degree because they had been Ambassadours though their Commission was expired In the customs also of most Nations a Judge retains still amongst those of his own Bench the same Precedency that he had formerly before his Dimission or his being laid aside except he has been laid aside for a Crime or Fault QVESTION XXXVIII What place is due to the Representatives of Subjects such as Viccars Deputs Assistants c It would seem that as Ambassadours have the same place that is due to him whom they represent so those who represent Subjects as Viccars who represent the Bishop Deputs who represent Judges ought to have the same place that is due to those whom they represent I find that L. 7. de Bonorcodicil C. Theod. there are four Dignities Ranked viz. Praefectorum Proconsulum Vicariorum Exconsularium And certainly in those Acts wherein they represent their Constituent they have the same Precedency that is due to him Felin in cap. cum olim de Offic. de Legat. And thus by the Canon Law the Bishops Viccar is preferred to the Dean and Arch-dean and not onely are these representative Dignities preferred in the acts of their Jurisdiction but even in all other deeds which necessarily preceed or follow them And some Lawyers are of