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 nature of those Certifications they ought to take place every where except where express Law or Decisions have restricted them And therefore since there is no Law nor Decision Declaring that Certificationss shall not be granted against Patens or Infeftments which transmit Honour they ought to be granted against these aswell as against other rights Nor is it craved that these Certifications should run against Honours transmitted via facti such as Robing and Belting and though the Pursuer be not designed by his Infeftments the first Earl yet that cannot hinder him from removing by this Certification all Writes or Evidents which may hinder him to be the first Upon which Debate the Lords refused to grant Certification against such Patents or Infeftments Courses taken by Princes and Iudges when they intend to shun the decyding of Contraversies concerning Precedency and to preserve the Rights of all the Competitors First They ordain the Competitors to preceed one another by turns and alternatively And thus the Emperour Lewis the fourth did in anno 1328. decide betwixt the Prince Palatine and the Duke of Bavaria and so the Parliament of Paris decided in anno 1616 but lest the first turn should give the Precedency that uses to be decided by lot And I find this alternation very old for the Thebans did so decide betwixt the brother-Brother-Kings Etheocles and Polinix and Plutarch observes the same betwixt Thyestes and Attreus Secondly They use to assigne one of the Competitors a place out of all Rank as was done to the Spanish Ambassadour in the Council of Trent and is frequently done in Our Parliaments But though this preserves the Right it insinuates a Ceding And therefore the juster way is to place both so without the Benches as that neither of their seats can shew any Preference as was done at the Council of Trent betwixt the Emperours Ambassadour and the Cardinal of Trent Thirdly They use to cause them enter by several doors as was observed betwixt the Queen of France and Margaret sister to Charles the fifth as Guicciardin observes Fourthly They use round tables or to write the names of the Pretenders in a circle an example whereof we have in Gaius lib. 1. Institut and Pope Vrbane having desired the Franciscans to give him three of their number out of which he might chuse one to be Cardinal they wrote down their three names circular-ways but in this case the names should be written down exactly in the midle of the table or paper for else as Crantzius observes he whose name is next to the top of the paper has thereby some Precedency Fifthly The eldest of the Competitors is still ordained to preceed Of which Livius gives an instance lib. 42. and King Iames the sixth decided so between several Families in Scotland and particularly between the Lairds of Blair and Balthaok Sixthly Sometimes he who was first promoted to a Benefice or Office is preferred where the difference is betwixt the Offices or Benefices and thus it was decided betwixt the Sees of Rheims and Treves Sevently Sometimes also the Competitors are preferred according as they produce their Commissions as was done in the Council of Trent betwixt the Ambassadours of Portugal and Hungary and the Polonians do frequently in Competitions between Ambassadours prefer him who first enters their Territories Bodin de Repub. lib. 1. cap. 9. Eightly Sometimes also the Competitors are ordained to give their suffrage and preceed according to the respect due to the Nations and not to the persons as was decided in the Council of Constans and Basil. Ninthly It is observed that Octavius Farnesius Prince of Parma and Placentia to shun the difference of Precedency betwixt his two Towns of Parma and Placentia did write himself Duke of P. P. And King Iames the sixth to shun any debate that could have been between Scotland and England assumed the title of King of Great Britain Tenthly Some use to secure themselves against such contests by Protestations which certainly do interrupt prescription and preserve the Protesters right L. 14. § 8. ff de Relig. but in that case the protestation must be presently interposed for protestations after the deeds contraverted are ended and past are concluded to be of no value Carpzol def 22. for protestations cannot be drawn back But it has been doubted whether the person against whom the protestation is taken does prejudge himself when he does not protest in the contrar for this seems to infer an acquiescence that the protestation is just since qui tacet consentire videtur and this is the occasion why in our Judicatures when one protests the other ordinarly protests in the contrare But yet it is generally concluded that Silence in that case does not prejudge him against whom the protestation is taken since he knows that in Law the protestation secures his right Tusc. tom 6. Conclus 941. FINIS
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
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
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
had all the Priviledges of Subjects communicated to them without being Vassals or Subjects And thus the Pelopidae were naturalized Persians by Artaxerxes King of the Persians and allowed to enjoy all their Priviledges in remuneration of the great Services done by them to the Persians as Plutarch observes in the Life of Pelopidas And thus the Athenians communicated their Priviledges to the Rhodians and the Latins to the Romans as Livius observes lib. 25. And it is very clear that the like was done by the English to us by a Statute of St. Edward which is yet extant in a Book called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 published by William Lambert anno 1568. And Ratified by the Conquerour amongst the good Laws of that Prince as Hollenshed observes Amongst others who are to be reputed of the same Nation with the English we find the Scots mentioned in the Statute for which two Reasons are given in it quia omnés ferme Scoti proceres ex Anglis conjuges coeperunt ipsi rursus ex Scotis sic sacti sunt duo in carne una That is to say Because most of all the Scotish Nobility did take Wives of English Extraction and the English of Scotish The second Reason added in that Statute is quia simul in unum contra Danos Norwegos atrocissime pugnaverunt And it is very well known to such as understand History that untill these late and unhappy Wars occasioned by the Shires of Northumberland Westmorland and Cumberland the Scots assisted the English in all their Wars especially as that Statute sayes against the Danes and Norwegians by whom they were called by those Invaders to share in the Victory but they refused the offer and fought near two hundred Years against these Usurpers In which Wars they are said to have lost two Kings with an hundred thousand Men all which the Scots might have preveened by suffering the Danes to pass peaceably to England through their Territories And it is observable in the Histories of both Nations that the Danes were never expulsed from England till they were first beat in Scotland till at last they were forced to swear that they should never return into this Isle and in Return of which Assistance we got from England this Priviledge in the same manner that Lewis the XII communicated to us a general Naturalization in France with all the Priviledges competent to the Natives of that Kingdom when we were forced to associat with it to secure our selves against the invasions of our old friends CHAP. IV. The Debates betwixt the Kings of Pole Sweden Denmark c. and other Princes THe King of Sweden pretends to Precedencie from the other two and Nolden in his Treatise of Nobilitie chap. 9. num 107. leaves the Precedencie betwixt Sweden and Denmark to be dubious And though some prefer the Dane as a Member of the Empyre grafted therein in anno 1542. Yet others think him upon that account the less preferable because he is thereby in a manner no free and Soveraign Prince Peter King of Denmark having really become Vassal to Fredericus 1. Emperour Otto Fris. lib. 2. cap. 21. But Pontanus relates that the Emperour did upon this account give him the right hand and thereby preferred him to Sweden I find also in the Council of Basil that Ravallus Arch-bishop of Vpsale did claim Precedencie to his Master the King of Sweden from all the Christian Princes he being the true Successour of the Gothish Kings who exacted Tribute even from the Emperours and Kings of France Both Denmark and Sweden claim the Precedencie from the King of Pole as an Elective and Limited Monarch And in the Ceremonial of Rome Pole is placed after the other two And it is undenyable that Sigismund King of Swed being chosen King of Pole he did in all his papers prefer always the Title of Sweden to that of Pole The King of Pole has debated for Precedency with the King of Portugal in anno 1557. But at Rome Pope Iulius the second preferred Portugal And yet the Debate was renewed under Charles the fifth In whose Reign both their Ambassadours meeting in his Court at Church and the Ambassadour of Portugal having possest the first place the other made a sign as if he would have spoken in private with him at which the Portugal rose whereupon the Polonian run in to his seat Hottoman de Legat. lib. 3. cap. 21. The King of Hungarie contests for Precedency with the King of Pole But in the interview betwixt Maximilian the Emperour Sigismund King of Pole Vladislaus King of Hungarie and Lodowick King of Bohemia in anno 1515. the King of Pole was preferred to walk on the Emperours right hand But this Controversie being renewed at the Council of Trent They as all other Kings were ordained to take place not according to their Dignities but according to the date of the Production of their Commissions in the Council The King of Hungarie argues for the Precedency from the King of Bohemia Because amongst the Emperours Titles Hungarie is set down before Bohemia But Bohemia oppons the Golden-bull of Charles the fourth Emperour Wherein it is ordained that in all Acts which concern the Empire Bohemia shall proceed all other Kings So that it seems that the King of Hungarie ought to preceed in all things not relating to the Empire But that Bohemia is to preceed in all that relates thereto There are other Soveraigns who are not Crowned-heads Such as Savoy Mantua Florence Ferara Parma Venice who Debate also their respective Precedencies in this manner The Duke of Savoy is by Pius the fifth Declared to be the first Prince of Italy And in the Chappels of France Venice c. gets the first Sâ—â—l And as King of Cyprus pretends to be ranked amongst the Crowned-heads But it may be admir'd why the Duke of Savoy takes the Title of Royal Highness For if he be King of Cyprus he ought to have the Title of Majesty and if he be not King Royal Highness is not due to him And the Duke of Mantua did contend with him though his Competition was not sustained vid. Crus pag. 511. And though the Title of Eminencie was bestowed upon the Dutchess of Mantua by Ferdinand the second Yet that was a Complement bestowed by the Emperour rather with respect to her Sex and her Relation to the Imperial Family then to the true Dignity due to her as Dutchess of Mantua vid. Limneum Iur. pub lib. 5. cap. 14. The Duke of Florence was still preferred to the Duke of Ferara by Charles the fifth And Port. lib. 4. Resp. Juris 167. confesses That Florence was acknowledged to be first by the Emperour by Rome and by France But yet Paul the third considering that the Dutchie of Florence was onely erected in anno 1531. Whereas the Family of Est were raised to be Dukes by Paul the third 1452. and were declared Dukes of Ferara by the Emperour 1454. did therefore prefer Ferara to Florence CHAP.
therefore ought to have the same Precedency this Reason is likewise seconded by a Decision of Charles the fifth who in the Debate betwixt the Duke of Florence and the Duke of Ferrara did prefer the Duke of Florence because the Republick of Florence was formerly preferred to Ferrara From this Decision some would distinguish betwixt the Case where a Citizen of the former Common-wealth is preferred by common consent of his fellow Citizens in which case they who Governed formerly still Govern Because they choose the new Duke Prince or King And the case wherein a Stranger comes in and Conquers in which case the former Government is absolutely Altered and none of those who Governed formerly continue to Govern Nor does the Argument of Surrogation hold in this case because that Argument onely holds where one thing is surrogat to an other by common consent and where the Reason of the Priviledge pleaded in the one case remains in the other neither of which can be alleadged where there is a Conquest because there neither is there a Consent nor does the Government nor State remain the same And consequently ought not to have the same Precedency seing the sameness of Precedency depends upon the sameness of the State which ought to have the Precedency The same is likewise to be concluded where One of the same City or Republick Usurpes the Government For in that case the former Arguments hold And though Aristotle libro quinto Politicorum sayes eundem Statum Reipublicae manere ubi rem suam summam Resbublica◠ante libera civi alicui suo regendam deinceps comittit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet this requires two conditions The one is that one of the Citizens Govern and the other is That the Government be transmitted to him by the common consent of those his fellow Citizens who Governed formerly An eminent Example therof We find in that famous Lex Regia mentioned L. 1. ff de Const. Princ. whereby the Romans transmitted all the power they had to the Emperour quae de Imperio lata est qua populus ei in eum omne suum Imperium potestatem contulit and upon this account it is that the Roman Emperours pretend the same Precedency that was due to the Common-wealth of Rome since the Common-wealth did surrender and transmit to them their power The next Branch of the Question is Whether a Kingdom being turned into a Common-wealth ought to have the same Precedency that was due to the former Kingdom And it would appear that it ought not since in becoming a Common-wealth it is Degraded from its former Dignity Common-wealths being by the consent of all Nations postponed to all Kings or Crowned-Heads Nor does the Argument of Surrogation hold in the matter of Precedency where there is not onely a substantial Alteration but a Degradation The former Argument of Surrogation does not likewise take place where there has an intermediate Impediment interveened as for Instance Though Spain had been formerly a Kingdom and though England was really a Kingdom of old yet both these having become afterwards Provinces to the Roman Empire they cannot Reassume the Dignities and Precedency due to them before they were subdued and became Tributaries since that Degradation was a medium impedimentum as Lawyers call it Which hindred the present condition of their Kingdom to be drawn back to its old State A thousand instances of which may be given in other cases and even in the matter of Precedency If a Family be Degraded and continue so for a long time if though they be thereafter restored Or if an Earl should resign his title in the Kings hands and so extinguish his title though he were restored yet he would not be restored to his former Precedency in prejudice of those who had acquired titles medio tempore QVESTION III. Whether he who is Elected to a Dignity ought to have Precedency thereby as if he were Actually Admitted This question has been often Agitated and may be of great Use amongst persons of all Degrees It was first Debated in anno 1521. betwixt the Ambassadours of Charles the fifth who was then Elected Emperour and the Ambassadours of Francis the first King of France who alleadged that though Charles the fifth was Elected Emperour yet not being Crowned and Anointed the Election being but an incompleat Act could not give him Preference and that it could not was Argued from these Reasons 1 o. Before the Emperours Admission and Consecration he is not called Emperour but onely King of the Romans and therefore he ought not to have the place as Emperour for the King of the Romans is inferiour to the Emperour and the Inferiour cannot have the Superiours place 2 o. If Election could give the Precedency there needed not any further Solemnity For by the Election the person Elected would be Emperour for none can have the Emperours place but the Emperour 3 o. That which is Imperfect cannot operat as much as that which is perfect L. Aedificia § perfectissime ff de edil edict and that which is Imperfect is judged in Law to be no more then if it were not Imperfectum nullum idem sunt And therefore as he could not have Precedency if there were no Election so neither can he have it where there is but an incompleat Election 4 o. Where there are two Degrees subordinat one to another the Inferiour Degree cannot aspire to that which is due to the Superiour But so it is that Election is but subordinat to Admission Ergo it cannot Operat as much as Admission Notwithstanding of all which I find that Gothofred and others decide for the Emperour and are of opinion that an Election has in it the Radical Power and Force of Admission and so gives as much Precedency as Admission does Yet with Us We see that an Elect Bishop takes not the same place that is due to him after he is Admitted And therefore the Distinction would be made here betwixt such an Election as transfers all the power that Admission can as We see in the Emperour King of Poland and others who can receive no more Power after they are Elected and delay their Coronation and other ceremonies for their own conveniencies And the case of Bishops and inferiour Magistrates who are oft-times to receive some further power beyond their Election and so their Election not being equivalent to an Admission it gives not the same Precedency that the other can and therefore I may conclude generally that Precedency followes Power and Administration QVESTION IV. Whether ought One who has been twice or oftner Elected to any Dignity be Preferred to him who was onely once Elected The Roman Emperours have differed in this for the Eldest and the Latest Emperours did think that such repeated Elections did augment the Dignity to those who were Elected and thus Valentinian novel 48. and this was likewise Hadrians Opinion as Spartianus Observes in his Life But Theodosius the Younger thought that