1654. Excepting onely the Ambassadours of Austria and the Ambassadours of Forreign Kings were still allowed to take place from all the Electors except the King of Bohemia in all the Solemnities of the Empire But the Ambassadours of Common-wealths having claimed the same precedency The Emperour Leopold has Decerned against them in favours of the Electors Crus lib. 4. cap. 4. The eldest Sons of the Electors preceed all the other Princes of the Empire The Arch-dukes of Austria have the first Seat next to the Electors CHAP. VII Of the Precedency of Church-men I Need not debate the Differencies that have fallen in amongst the Patriarchs of Rome Constantinople Antioch Alexandria and Ierusalem Those of Rome and Constantinople having claimed Precedency because their See were the seats of the Roman and Grecian Empires Those of Ierusalem claiming preference because the chief Priest-hood was once settled there Those of Antioch claiming precedency because Antioch was the first seat of Christianity as is clear by the 11. chapter of the Acts And those of Alexandria pretending that they were equal to the Roman Patriarch at least because Alexandria was the chief City of the East before the building of Constantinople and the Church thereof being by Euseb. lib. 11. said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vide Salmas de Primat pap cap. 12. Thus far did Precedency invade even Religion and raise Emulation amongst those who pretended to be the greatest Paterns of Humility The Roman Patriarch was by Phocas the Emperour raised above all the rest in the year 606. since which time they have raised themselves by several Degrees to the Papacy though it cannot be denyed but even before that time the Bishops of Rome had the first Seat in all Councils as is clear by Iustinians Novella 131. cap. 2. And in the Council of Nice Adrian Bishop of Rome had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Or the power of preceeding did still belong to the Emperours as hath been fully cleared by Crusius and others And though it be pretended that Constantine the Great did from Christian Humility prefer the Successour of St. Peter as Vicar of IESVS CHRIST to himself and that in the Canon Law cap. Constantinus 14. Dist. 96. the Emperour Constantin is brought in acknowledging himself to have led the Popes Bridle and in the Famous Ceremonial of Rome Fol. 21. the Emperour is allowed no higher place then the Popes Foot-stool Yet Frederick the 1. Emperour did contentiously Debate this Precedency with Adrian the fourth since which time it hath been variously acquiesced in by Popes and Emperours And though the Legats be Representatives of the Popes yet Thuan tells us lib. 98. That the Learned Brissonius President of the Parliament of Paris would not suffer the Popes Legat to preceed him And at the Coronation of Charles the fifth the Pops Legat was denyed the precedency from the Electors The Cardinals have Debated for Precedency with the Patriarchs though by the Novella 132. c. 2. Iustinian places Patriarchs next to the Pope And Panormit in cap. antiqua X de privileg excess Praelat prefers the Patriarchs to the Cardinals and now by the Concession of Sextus Quintus that Pope hath raised the Cardinals to an equal Degree with Kings and if Kings be present at Table or other Solemnities with Cardinals If there be but one King he is to sit after the first Cardinal Bishop and if there be moe Kings they sit mixtly with the Cardinals first a Cardinal and then a King But though this holds amongst Popish Princes yet the Authour of Les Memoirs des Ambassadeurs does Observe That Leicester Grotius and the other Ambassadours of PROTESTANT Princes never yeelded Precedency to Cardinals till Lockhart Ambassadour for Cromwel yeelded it to Cardinal Mazarine Where he likewise observes That though the Prince of Condie yeelded the Precedency to Cardinal Rechlieu yet the Count of Soisson refused it The Bishops of Scotland preceed in this manner Arch-bishops of St. Andrews Arch-bishops of Glasgow Bishops of Edinburgh Bishops of Galloway Bishops of Dunkel Bishops of Aberdeen Bishops of Murray Bishops of Rosse Bishops of Brechin Bishops of Dumblane Bishops of Caithness Bishops of the Isles Bishops of Argyl Bishops of Orknay I find by Letter in anno 1625. that before King Iames going into England the Marquesses of Scotland did take place from the Arch-bishops But now the Arch-bishops take place from all Dukes and Marquesses in imitation of England And by a Letter in anno 1626. renewed in anno 1664. The Arch-bishop of St. Andrews is to take place from all Subjects which is to be limited as not to exclude the Kings Children and Brothers as I conceive And de facto the Arch-bishops of St. Andrews ceds to the Chancellour since the Letter The Bishops of England Preceed thus Arch-bishops of Canterbury Arch-bishops of York Bishops of London Bishops of Durham Bishops of Winchester Bishops of St. Davids Bishops of Ely Bishops of Norwich Bishops of Hereford Bishops of Salisbury Bishops of Peterborough Bishops of Carlisle Bishops of Worcester Bishops of Rochester Bishops of Landaff Bishops of Lincoln Bishops of Bangor Bishops of Exeter Bishops of Chichester Bishops of St. Asaph Bishops of Oxford Bishops of Lichfield and Coventrie Bishops of Bristol Bishops of Glocester Bishops of Chester Bishops of Bath and Wells CHAP. VIII General Observations concerning the Precedency of Subjects NObility is devided with Us as in England in Nobiles Majores Minores the Greater and the Lesser Nobility Under the Greater are comprehended all such as are Lords of Parliament Under the Lesser are comprehended Knights and Gentlemen And though all these be not Peers of Parliament yet they are all Peers to one another And thus a Gentlemen may be offered to a Dukes Daughter whose Ward and Marriage falls to the King as has been often decyded nor can that Match be refused upon the account of Inequality And it hath been found that though Noblemen must be judged by their Peers yet Landed Gentlemen may pass upon their Assyse and a Nobleman is oblieged to accept of a Challenge from a Gentleman as his Peer where Duels are Lawful Under the word Barron all Our Nobility are comprehended as is clear by the 81. Act. Parl. 14. Ia. 2d And the Inscription of the first Parliament of K. Ia. 5th where the Parliament is said to be holden per Regis Regni tutorem una cum Praelatis Barronibus Burgorum Commissariis Albeit the Parliament of Rob. 1. was cum Episcopis Abbatibus Prioribus Comitibus Barronibus aliis Magnatibus which shews that there were other Magnates infra Barrones It may be Doubted Whether the Younger Son of Dukes Marquesses c. are to be Ranked inter Nobiles majores since they sit not in Parliament Or inter Nobiles Minores since they are designed Lords and take place from many of the Nobiles Majores The Sons of the Kings of France were all Kings and Soveraigns in
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
does the Son possess this Title by his Father but by his Family And Lawyers have resolved that Filius retinet Nobilitatem etiam repudiata haereditate Bart. in L. Iurisjur § 1. ff de Oper. lib. Iac. in L. si non sortem ff de condict in debit But yet this decision may seem unsuteable to the Analogy and Principles of Law For 1 o. Since Honour is by the first Patent and Erection granted to a man and his Heirs It seems Just and Legal that none can enjoy the same but such as are Heirs so that this seems to be a qualified Right granted by the King and consequently can be enjoyed by none but such as Purge and Purifie the qualities and are Heirs 2 o. We see that in other Rights granted to a man and his Heirs no Successor can have Right without being Heir and since this holds in Accessions of the meanest Nature Why should it not much rather hold in Titles and Dignities which are things of great importance 3 o. We have no way nor method to know who is Heir but by an Inquest after which he who is served Heir is lyable to all Debts and if he who is to use the Title needs not be found Heir by an Inquest any man may use the Title of a Deceist Peer and if two contended for it this could not be tryed without an Inquest and Service 4 o. The making men lyable to their Predecessors Debts for using his Title would be very advantagious for the Defuncts Creditors and it is the Interest of the Common-wealth that Creditors should be payed nor could the apparent Heir complain since he may choose to use the Title or not as he pleases 5 o. It were advantagious to the Common-wealth that none had a Title but he who had the Estate which was given out with it and out of which it was to be mantained a Poor Nobility being a great burden upon a Common-wealth and a ruine to it And I find that the Parliament of England did Degrade George Nevil from being Duke of Bedford for want of an Estate suteable to his Dignity which Statut. 17. Ed. 4. expresses the inconveniencies here mentioned which are greater in Scotland than in England because Our Peers have more Interest in laying on Taxes than Lords in England have 6 o. The Law considers not in other cases whether the thing used by the apparent Heir may be advantagious to him Or whether he may pay Debt with it for the using of meer Ornaments which can yeeld no Money Or things of the meanest advantage do make him lyable yea and he would be lyable though he were a looser by the thing he used whereas not onely are Honours and Precedency things of great Advantage and which men would buy at any Rate But if a man have Liberty once to use the Title of his Predecessor it gives him a great Opportunity to inhance his Predecessors Estate by indirect means And the former Arguments prove onely that the Blood interest as to Honour is transmitted without a Service but not that the Feudal Title of Earl can be so transmitted QVESTION XII Whether does the Appearancy of Blood give Precedency where the Predecessor is not Dead This is called by the Doctours Spes expectantia successionis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and upon this account it is Debated Whether the Son of a King ought to be preferred to his Brother and all the Peers And generally whether the Nephew ought to be preferred to the Uncle who was his Fathers second Brother And I find it Recorded that Lycurgus did decide for himself against his Nephew being the Son of his eldest Brother But I would distinguish here thus First in the Families of Kings and Princes all the Kings Children are preferred to the Kings Brothers and all the Kings Brothers to the Kings Uncles and thus it was decided in France by Henry the third Rupanus pag. 508. But formerly the Uncles were preferred by the Constitution of Philip the Long anno 1316. And though in the Roman Empire before Alexius Comnenius the Emperours Son was still preferred to his Uncle Yet that Emperour desiring to put a Mark of Respect upon his own elder Brother preferred him to his Son and now the Sons of Princes are so farr preferred that not onely they but all the Princes of the Blood are preferred to all other Peers though they be last Created as was found by the Parliament of Paris anno 1541. betwixt the Dukes of Neveres and Monpensier 2 o. If in other Families the Brother be of a Dignity equal to his elder Brother then the Brother will be preferred to the Nephew as if the Brother be an Earl and the Nephew a Lord as being an Earles Son in this case Expectation will not prefer the Nephew because there are other actual Degrees of Preferrence 3 o. If the Uncle were a Lord by Creation and the Nephew a Lord by Birth in which case if the Uncle was a Lord before the Nephew was born the Uncle ought to be preferred as first in Time but not if the Nephew was first born and thus Baldus distinguishes ad L. ut intestato C. de su Leg. Hered 4 o. If neither the Nephew nor Uncle have any special Dignity then the Son of the elder Brother is to be preferred to the Uncle And this last case shews that the immediate hope of Succession or jus expectantiae is in it self a ground of Precedency and since a man and his apparent Heir are una eadem Persona in the Construction of Law and that in many things that are Disadvantagious to the Son he is look'd upon as Heir apparent in the same way as if his Father were dead it is therefore just that as he has the Disadvantages of an apparent Heir so he ought to have the Advantages of an apparent Heir And thus We see that Our Statutes having Declared Comprisings bought in by the apparent Heir to be Redeemable by the Defuncts Creditors It was found that a Comprising bought in by the eldest Son even whilst his Father lived was Redeemable from him and that he was an apparent Heir in the construction of Law And therefore since the Law puts him in the same case as if the Father were Dead he ought to have the same Precedency and consequently ought to be preferred to his Uncle to whom he would certainly be preferred if his Father were dead It is remarkable that in Scotland the Uncle was of old acknowledged to be King during not only the Pupillarity of his Pupil but during the Uncles own Natural Life which being an Invasion upon the Natural Right of Our Kings was abrogated under Kenith the third QVESTION XIII Whether should an elder Brother who was Born before the Father was Preferred to the Dignity of a King Marquess Earl c. be Preferred to a younger Brother who was Born after his Father had attained to either of these Dignities Lawyers have varied very much
preferred because he dwells in a house where Christianity was first professed which were in it self very ridiculous And if the first Christian Race be allowed the Preference the King of Scotland ought to be preferred for Donald King of Scots imbraced the Christian Faith in anno 199. before either William the Conquerour succeded to England or Hugh Capet to France and long before Spain obeyed this Race of Monarchs for which we can cite not only our own Historians but Baronius ad annum 449. Duchesne and many others and particularly Beda and Polidor the worthiest of English Historians Beda relates That imbuebantur a Scotis parvuli Anglorum quin ipse Alsridus Anglorum Rex in Insulis Scotorum operam dedit sacras Literas didicit lib. 3. hist. c. 27. Reges Angliae cupidi salutis aeternae Legatos ad Eugenium quartum Scotorum Regem miserunt ut ille digneretur Viros idoneos mittere per quos illi Christianae Fidei Rudimenta docerentur sacro Baptismatis fonte abluerentur quod ille haud gravate indulsit Which clears fully that our Kings were Christian before those of England and so ought to be preferred to the Kings of England by their own Arguments and their own Authors King Donalds Conversion is attested by Bellar. in his Answer to King Iames by Barronius ad annum 429. Sanderus lib. 4. de clav David Arnoldus de conversione Gentium c. And since King Donald was before Fergus the second it appears clearly even from Forreign Histories that we had Kings before Fergus the II. I cannot deny but that in the Council of Constans England and France were preferred to Scotland but that proceeded as Gothofred observes from the partiality of the Church of Rome which alwayes preferred those who were able to do them most Service but if we consider the Principles of the Christian Religion according to these that Race ought to be preferred whose Title is justest and I am sure that according to this Rule Scotland ought to be preferred for its Kings have not Usurped over the People which they Governed And not only does Religion consider this ground of Preference as suteable to Devotion but the Law considereth it as suteable to Justice And Lawyers have therefore thought a Succession of Kings enjoying a just Title free from Violence and Tyrrany one of the chief Grounds of Preference and Precedency And thus Vasquez in praefat ad illustres questiones sayes That multum ad nobilitatem praelationem confert ex veris legittimis Regibus non a Tyrannis descendisse Nor does the Custome either of Courts or Councils invert the Precedency which is founded upon Antiquity and the right of Blood from which Consuetude cannot derogat in the matter of Precedency since that Consuetude is only respected in Law quae in se rationabilis juri nec naturae nec gentium contrariatur And likewayes since this matter of Precedency is setled by Lawyers upon these solid Foundations for securing the publick Peace and Interest of mankind it were unjust that the same should be so easily overthrown by the Partiality of Interested Church-men or the Pride and Power of other Competing and Rival Princes and therefore to secure the Rights of Justice and Blood against all such Invasions Lawyers have unanimously concluded that Consuetudine induci non potest ut prior in dignitate praeferatur posteriori Crus de praeemi cap. 12. Which Principle they so farr assert as to conclude that this could not be conceded even by express Paction Rumellin dissert 1. thes 18. even though that Paction were confirmed by an Oath Rippa ad l. 3. ff de donat And albeit it may seem that every man may renounce that which is introduced in his own favours yet to this it is answered That men cannot renounce what is introduced in their own favours when that which they renounce was not principally introduced in their favours but arose to them necessarily by the Laws of Nature and Nations or was introduced principally in favours of the common interest of Mankind rather than of them and in which third parties would likewise be concerned All which is clear not only by the principles of Reason but by L. 3. ff de pactis and it cannot be denyed but that the Precedency from the Antiquity of blood is no such private Right as may be renounced it being a priviledge not given by Law but arising from nature Lex non data sed nata and introduced for regulating the common Interests of mankind and preventing their differences or oppressions whereas how unfortunate or irregular should men be if subjects might force their Magistrates or younger brothers the Elder or stronger Princes the weaker to Renounce by Paction or might serue from them by Custom and Inadvertance the Seniority and Precedency due to them whereas now the impossibility of prevailing in such Designes takes happily away all lusting after them and whatever may be ascribed to Consuetude or Decisions in that Precedency which because it sprung meerly from Custome may be regulated by it or in dubious Cases where a grain weight may cast a ballance yet I see no Law nor Reason that can be adduced for taking away by Decisions Negligence or Consuetude a clear right of Precedency founded upon the Antiquity of Blood Especially since all who writ upon precedency are clear That no man can prejudge his Successors as to the precedency due to them by blood Licet positus in dignitate suo ipsius facto possit sibi prejudicium afferre non tamen praejudicare potest quoad successores suos Dec. consil 21. num 74. vid. Gothofred de praeced pag. 55. Rub. decis 298. qui tradit ea quae a genere natura tribuuntur non obstante facto majorum manent incolumia Which Rule should rather hold in Kings than in any else because they are but Administrators But in this case there is no Decision against our Kings nor have they ever consented to any such preference And therefore whatever may be said for others against them in a possessory Judgement the matter of Right is still intire Vasquez the illustrious Spainish Lawyer did at the Council of Trent adduce several Arguments for the precedency of the king of Spain which if they were well founded would I confess inferr a Precedency to England and France and which I shall the willinglier adduce and answer that I have heard them urged for France and Spain against the King of Britain and because they are the generall topicks and common places which are necessary to be known and understood for clearing not only the Precedency of Princes but even of the Nobility and Gentry The first is That these who are most powerfull and greatest ought still to be preferred c. statuimus de major obed and he must be accounted most powerful who is most powerfull the time of the debate Nam qualitas adjecta verbo debet intelligi secundum tempus verbi l.
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
purum Honorem habent L. 7. de Decur they are called inanes umbrae cassae imagines dignitatum I have heard this case also Stated with relation to the same quaere viz. By the Erection of the Town of Brichen in a Burgh Royal the Bishop of Brichen is first to Elect and then the Town are to Elect their Bailies From which the question arises Whether if the Bishop choose One who was never a Bailie formerly and the Town choose those who were formerly Elected Bailies should the Bishops Bailie preceed It being pretended that though he is to have the first Nomination and the choise of all yet that should not give his Bailie or Alderman the Precedency in respect that by the constant Custom observed by all the Burrowes when many are Elected to be Aldermen or Bailies at once he who has been formerly a Bailie preceeds always him who was never QVESTION VII Whether amongst such as have equal Dignity the first in time ought to be Preferred It is Answered That Generally and Regularly the first in Time ought to be Preferred amongst such as are equal in Dignity Which is clear be the Civil Law not onely in Kingdoms but in all the Degrees of Nobility and Promotions And this Our Reason may teach Us without Law for if there were not some Certain and Stated Rule whereby Precedencies might be known it were impossible to evite Confusion and all other Rules except this are uncertain but yet this Rule has some Exceptions 1 o. Princes of the Blood viz. the Sons Brothers Grand-sons and Nephews of Kings are excepted from this Rule For though they be Dukes or Earles of a latter Creation they are preferred to all of that Dignity 2 o. In Germany if the Chief of a Family come to a Dignity equal to one of his Kinsmen who formerly enjoyed that Dignity he will be preferred to him though his Kinsman did first attain to the Dignity An Example whereof Gothofred gives cap. 3. Thes. 16. this Exception seems to be founded upon the right of Blood to which those of the same Family seem to give that Respect as to an elder Brother But though those of the Family may give this Respect out of Favour yet in Law they are not thereto Oblieged For the Prince being the Fountain of Honour he onely can give Preference and his Patent may prefer one Cousin to another since he can bestow Employments which can prefer a Son to a Father And therefore in Britain the date of the Patent is onely considered QVESTION VIII When many are Promoted at once in the same Write or when many are Nominate tn the same Commission Whether is the Order of Nameing therein exprest to be Observed It is answered That Ordinarly he who is first named ought to be preferred L. 1. ff de Albo scrib Albericus ad L. inter Claras C. de sum Trinit but though this hold where the Write wherein many persons are named is drawn upon Design to Prefer those who are named because there Promotion being the design It is to be presumed that the Order of the Promotion was Observed Glossa ad § ult Auth. de Defens Civit. Clement 1. de Baptismo yet where the Write had any other design and the Nomination did onely proceed by way of Narration there an Argument from the Order of Nomination is not still Concluding especially Considering that such as draw publick Papers are not always versed in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And thus I have my self seen old Charters wherein the Chancellour is oft-times placed after the Lord Chamberlain and both of them after some of the Nobility and if any man will consider Our Statutes wherein Commissions are granted they will find this Order very ill Observed And Lawyers conclude this Argument very weak in such cases Everard in Topicis loco ab ordine num 13. Golstad lib. 1. cap. 23. And there are very clear Examples of this given cap. 2. de Iudiciis cap. Pastoralis de Concess prebend But yet in dubious cases where the Person injured cannot otherwise prove his Precedency this ought to bear great weight especially If many such Papers can be shewed of one tenour And if the Office granted by that Commission gives Precedency above what the persons therein named could otherwise pretend to then the first Nomination has the Precedency As when Ordinar Gentlemen are named in the Commission of the Privy Council c. I find also by the old Records of Parliament and Privy Council that the Members of Parliament and Counsellours are in the Sederunts named as they entered into that particular Meetings but now they are named according to their true Precdency QVESTION IX In what cases does Age prefer and what is its Prerogative in the matters of Precedency The Concession of the Prince being the Rule of Honour he who has the first Concession ought to be preferred in the matter of publick Honour except in three cases observed by Gothofred cap. 3. Thes. 14. First in cases dubious Secondly where the pretences are absolutely equal And thus of the two Roman Consuls the Eldest always preceeded as Plutarch observes Thirdly to take away Contraversies amongst persons of the same Family but of different Lines It is observed in Germany and other places that the Eldest has always the Precedency as Golstad and other German Authours observe And this last holds likewise with Us if the Precedency be not clear and was so decided by King Iames the sixth betwixt Blair of that ilk and Blair of Balthaiock QVESTION X. Whether does Appearancy of Blood give Precedency before actuall Investiture and Possession Though it may seem that since Marquisats Earldoms c. being Feudal Honours conferred oft-times by erecting Lands in a Marquisat or Earldom that therefore till the apparent Heir be actually Invested or Infeft as We call it he ought to have no Precedency Yet that being expresly Debated in anno 1608. in the case of Frederick Duke of Wirtemberg it was decided that the very right of Blood transmitted the Precedency But Golstad Coment de Reg. Bohem. lib. 3. cap. 6. is of opinion That though this may hold where the apparent Heir sought to be Invested or Infeft and his not being Entered nor Infeft was not his Fault Yet if he did not seek to enter he ought not to have the Precedency With Us though an apparent Heir never enter yet he has still the Precedency due to his Predecessor QVESTION XI Whether does the apparent Heir his Assuming and Vsing the Title and Precedency of his Predecessor make him lyable to his Predecessors debts and Infer a Passive Title against him as We speak To this it is answered That it makes him not Lyable in payment according to the present Curent of Our Decisions because Honour descends from the King and is not any lucrative Accession out of which Debt may be payed and no man should be made lyable to Debts for enjoying that which cannot pay Debts Nor
Grand-father is because by the right of Representation her Fathers Family comes in the Grand-fathers place And to shew that this Argument viz. Your Father had not the Precedency of me therefore you cannot have it of my Daughter is a weak Argument in cases of Representation may appear from this That if it were a good Argument the younger Earl might aswell say to that Lords Son Your Father never took the place of me so neither can you And though it may be Answered to this Argument that the Disparity betwixt the Brother and Sister lieth in this That the Son Represents the Grand-father but the Daughter does not Yet if We consider it nearly even this Answer is Fallacious For though the Daughter Represents not the Grand-father yet the Fathers Family Represents the Grand-fathers and so participats all the Honours of the Grand-fathers Family by that Representation And as the elder Brother becomes an Earl Because if his Father had lived he had been an Earl so she ought to have the Precedency as an Earles Daughter because her Father would have been an Earl for the same Reason QVESTION XVII Whether if the elder Brother be Mad or Dumb c. does the second Brother get the same Precedency as if his Brother were dead I have heard this case much Debated some Contending That such as were Incapable of succeeding were to be Reput as dead per cap. 1. an Mutis Surdis it is expresly declared that such as are born Deaf or Dumb or are naturally Idiots shall not Succeed But others thought that even these are to Succeed but have onely their nearest Agnats given them for Curatours and so they are Heirs And consequently the Precedency is not due to their nearest Friends during their Life and they may have children who would exclude their nearest Agnats I find some Lawyers distinguish betwixt such Defects as are Natural and follow the Havers from their Birth and these Defects do Exclude from the Succession so that the next Heir has the same Precedency as if his elder were dead if the Succession be of Kingdoms or Fews that have a Dignity annexed to them But in private Rights and where the Defects are Accidental they assert that the Right remains with the Heir though defectuus and consequently he retains also the Precedency Tiraquel quaest 23. QVESTION XVIII Which of two or moe Twins ought to Preceed when it is Contraverted which of them was first Born We have a remarkable instance of this Gen. 38. where the Mother desired the Scarlet threed to be bound about his wrest who should be first Born and as to this point Lawyers have differed very much For some think that the Estate ought to be devided amongst the Pretenders if it be divisible of its own Nature Or if it be indivisible the Superiour may prefer either he pleases if the Succession be of a Few Or the Decision may be referred to Lot in privat Persons Or to the Vote of the Representatives of the Kingdom if the Succession be to a Monarchy Some likewise are for the Brothers possessing by turns and alternately and though one Witness be not sufficient generally to Establish the Right of Succession yet if any one Woman was onely present her Testimony would certainly prefer either necessity forming it self into a Law here as in other cases vid. Tiraquel de Iur. primi Gen. quaest 17. QVESTION XIX Whether do Natural Children Born before a Lawful Marriage preceed And should they be preferred to the Children Born in a Lawful Marriage if they be Legitimated thereafter This case did exist in a most illustruous instance in Scotland For King Robert the second having begot a Son upon Elizabeth Mure he thereafter Married Eupham Daughter to the Earl of Rosse and had by her the Earles of Strathern and Athol after which having married the said Elizabeth Mure that Marriage did Legitimate her Children and by Act of Parliament her Children were by a Recognition and acknowledgement of Parliament preferred to the Children Born in the Lawful Marriage The Reasons pro and contra urged in that Debate at that time are now unknown But the Arguments which might have been urged in the case are 1 o. That a Son so Legitimated would seclude without all Contraversie all Uncles and other Agnats Therefore by the same he should Seclude his other Brothers § si quis autem defunctis Authent quibus mod nat cap 1. qui Filii sunt legit 2 o. Legitimation is Retrotracted and drawn back to the time of the Nativity cap. tanta qui fil sunt legit and Legitimation puts the Person so Legitimated in the same Condition as if he had never been a Bastard L. si quis Filio § pen. ff de injust Test. and this is bestowed as a particular Respect upon Marriage and its Sacred Character and to invite men to make Satisfaction for the wrong they have done 3 o. By the Roman Law those that were born in Captivity were not capable of Succession but how soon they were Ransomed and had returned they were restored to the Right of primo-genitor and preferred therein to those who were thereafter born at Rome And therefore since such was the Force even of a Civil and unreasonable Fiction much more ought greater Force to be allowed to Legitimation which is founded upon so Just and Pious Principles 4 o. Quo-ad the Right of Succession the time of the Defuncts death to whom he is to succeed does regulat the quality of the Succession And therefore since the Person Legitimated was capable of Succession the time the Defunct died and was then likewise the eldest he ought to Succeed as eldest whatever his Condition was the time of his Birth L. post Consanguineos § proximam ff de suis Legit. nec enim prius debet de cujusque conditione queri quam haereditas vel legatum ad eum pertineat L. in opportet ff de Legat. 2. 5 o. The eldest Son was always eldest and was onely hindred from this Right of primo-genitor and Precedency by the Legal imperfection of his Birth and therefore this impediment being removed by the same Law which put it his Birth-right continues intire But whether this Priviledge should be granted to such as are Legitimated by the Prince and not by the subsequent Marriage may be doubted And I incline to think it should not because the special Reason of the former Concession depends upon the Favour and Honour of Marriage and this is likewise clear cap. quoniam Auth. quib mod nat vid. Imolam in cap. Grand de sup negl Praelat And my second Argument is That the Prince cannot by any deed of his prejudge third Parties But here such a Legitimation would prejudge the Children of the intermediate Lawful Marriage QVESTION XX. Whether ought the Order of the Nomination to be Observed in Commissions where the Persons are Ranked otherwayes then can be consistent with the Kings former express Grants An instance of this may be given in