upon the 20. of May 1619. declare That the Ladies of the Privy Chamber should in time of mourning take their places as if the Queen were living till the Funerals were ended and that the Queens Chamberers should for the present Funeral go before Countesses women without prejudice to Countesses women at any time thereafter It is fit to observe That the Wives and Daughters of all Dukes Marquesses Earles c. do take the same place that the Husbands and Sons do conform to the Precedency formerly exprest pag. 35. And I find in the Heraulds Office of England an establishment settled thus amongst women by Iasper Duke of Bedford and other Noblemen by warrand from Henry the fourth The Wives of Dukes of the Blood Royall The Wives of other Dukes The Wives of the eldest Sons of Dukes of the Blood Royal. The Daughters of Dukes of the Blood Royal. The Wives of Marquesses The Wives of the eldest Sons of Dukes The Daughters of Dukes Countesses The Wives of the eldest Sons of Marquesses The Daughters of Marquesses The Wives of the younger Sons of Dukes The Wives of the eldest Sons of Earles The Daughters of Earles The Wives of Viscounts The Wives of the younger Sons of Marquesses The Wives of Barons that is to say our Lords The Wives of the eldest Sons of Viscounts The Daughters of Viscounts The Wives of the younger Sons of Earles The Wives of the eldest Sons of Barons or Lords The Daughters of Barons The Wives of Knight-bannerets The Wives of the younger Sons of Lords The Wives of Knight-batchelours The Wives of the eldest Sons of Knights-bannerets The Daughters of Bannerets The Wives of the eldest Sons of Knight-batchelours The Daughters of Knight-batchelours The Queens Maids of Honour The Wives of the younger Sons of Banerets The Wives of the younger Sons of Knight-batchelours The Wives of Esqueirs The Wives of Gentlemen The Daughters of Esquiers The Daughters of Gentlemen The Wives of Citizens The Wives of Burgesses From all which it is to be observed that the wife of the eldest Son of any degree takes place before the Daughter of that same degree and both of them take place of the younger Sons wife of the preceeding degree Thus the Lady of the eldest Son of a Marquess preceeds the Daughter of a Marquess and both preceed the Ladies of Dukes younger Sons Item the Wife of the next degree as a Countess preceeds the Lady of the eldest Son of the preceeding degree as of a Marquess and the Daughter of a Marquess 3 o. This holds not only in comparing degrees amongst themselves but also in comparing Families of the same degree amongst themselves as for instance though the Marquess of Dowglas Lady would give place to the Marquess of Huntlys Lady yet the Wife of the Marquess of Dowglas eldest Son would take place from the Marquess of Huntlys Daughter 4 o. Though of old with us in Scotland the Wives of Lords did contend that they had the Precedency from the Daughters of Earles Yet since that Letter written by King Charles the first at his Coronation we follow the custome of England in preferring the Earles Daughter who takes place immediately after her eldest Brothers wife 5 o. Though the Daughter of a Marquess gives place to the wives of the eldest Sons of all Marquesses yet if that Daughter be an Heiress and the Daughter of an elder Marquess then she takes place from the wives of the eldest Sons of all younger Marquesses as Segar observes pag. 240. It is likewise observable that since this Ranking under Henry the fourth there are several new additions For after the wives of Lords eldest Sons and Lords Daughters are Ranked the Wives of Privy Counsellours and Judges Wives of the younger Sons of Viscounts and of Lords or Barons the Wives of Baronets the Wives of Bannerets the wives of the Knights of the Bath and the Wives of Knights-batchelours c. as in the former List. Some considerable Questions concerning Precedency Resolved QVESTION I. WHether in Competitions betwixt Kingdoms States and Towns is their present Condition to be Considered or what they were formerly To which it is answered with this Distinction viz. Either the Kingdom or other places betwixt which Competitions are Stated remain the same that they were in their Substantials and then the former Precedency is still continued as for instance Though Rome whilst it was a Common-wealth did sometimes admit of a Dictator who had indeed the power of a King yet they remained still the same Common-wealth and therefore being the same in substantials they ought to have the same Degree of Precedency continued Or when two or three Kingdoms are without any alteration United in one as the Kingdoms of Scotland and England were United into the Kingdom of Great Britain under Kings in the same Race who succeeded to both as is fully Demonstrated by Alb. Gentil pag. 82. and this is likewise clear from L. proponebatur ff de Iudiciis l. 24. ff de Legat. 1. But where there is a substantial alteration called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there the former Condition is not considered but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or present condition of the places in Competition is that which ought to be considered And thus when a Kingdom comes to be Conquer'd by a Stranger and by a Strange and Forreign Nation there the State of the Kingdom is absolutely Innovated especially if the Laws of the State be altered And therefore the French Lawyers are of Opinion that the Precedency of England ought onely to be Computed from William the Conquerour Because at that time a Stranger and a Strange Nation did conquer the said Kingdom and the Fundamental Laws of it were much Innovat and if this be not an Alteration none can be For the Antiquity of Land cannot give Precedency for all Land was Created together and there are few Nations so Conquest as that the former people do not remain so that there can be no Precedency upon that account though some who are extravagant in their Zeal for their Countrey doe Argue its Precedency from the first Ages of the World as Vasquius does that of the Spanish Empire in deryving it from Tubal Cain praefatio in Contravers Illust. QVESTION II. Whether a Kingdom becoming a Common-wealth or a Common-wealth a Kingdom does their former Precedency remain This Question has two Branches wherein the Difficulties differ The first is Whether that Town or Place which was a Republick having become a Monarchy or Principality ought it to Retain the Precedency due to the former Common-wealth And that it ought to Retain the same Precedency may be Argued Because when one thing is surrogat in the place of another that which is surrogat ought to have the same priviledge with that in whose place it is surrogat surrogatum subit naturam surrogati But so it is that the subsequent Principality is surrogat in place of the former Common-wealth and
in this Point For some have been of Opinion that those that are born before the Dignity was attained cannot pretend to the Precedency due to the Father for he cannot be said say they to be the Son of a King or Marquess whom a King or Marquess did not beget And since those who are born before a Crime is committed loose not their Dignity by the Fathers committing of the Crime So by the Rule of Contraries he who was Born before his Father was Advanced to a Dignity ought not to participat of that Dignity This they found likewise upon express Laws L. si Senatus Cod. de Dignitat L. Imperalis Cod. de Nupt. and thus Darius was preferred to be King of the Persians to Artabazanes Others do more justly conclude that these are to be Preferred though Born before the Dignity was obtained For if he who was Born in that Condition can be called the Kings Son he must be the Kings eldest Son And it were very absurd that the Father should be Noble and the Son not And if a King had but one Son he could not be King if this were allowed and this is most clear L. Senatoris Filium ff de Senat. where it is said That he is aswell to be called the Son of a Senator who was Begot before the Father was a Senator as he who was Begot after And though this be true as to Succession and as to the Degree of Nobility in general yet many Lawyers are of Opinion that they do not attain to so eminent a Degree of Nobility as if they had been Born after the Father attained to his Nobility For by the former Law si Senator natus ex illustri ante Dignitatem adeptam est clarissimus solum natus postea illustris Others there are who say That these who were Born before may succeed to Honours which descended from old Predecessors but those which were acquired in the Fathers own time should onely descend to such as were Born after these Honors were acquired But now generally in Europe and particularly with Us even those who were Born before the Father attained to any Dignity do participat of his Dignity as if they had been born after the same was acquired in all cases QVESTION XIV Whether ought a Son who is in publick Imployment and Dignified to Preceed a Father who is not It is answered That a Son being in publick Imployment ought to preceed a Father who is not And thus Fabius Maximus commanded his Father to light down from his horse when he was to meet him and was praised for mantaining the Dignity of the Roman Empire in this case And the Son in this case is not a private person but Represenrs the Prince or Common-wealth who are to be preferred to any person and therefore Laurentius Celsi was justly taxed at Venice because he would not meet his Son when he was newly made Duke of Venice least by being discovered before him he should lessen the Perogative of a Father But it may be doubted Whether though this hold in Employments it ought to hold in Titles since in these the Son Represents not the Common-wealth And therefore in these cases the Laws of Nature ought to prevail above the Laws of Honour especially if there be none present but Father and Son But if there be a third person present who will take the place from the Father but not from the Son then the Son must preceed the Father because though he yeeld to his Father yet he should not yeeld to a third Party And it is a general Rule in matters of Precedency that I must preceed you if I preceed him who preceeds you which is not unlike that Maxime used in other parts of Law qui vincit vincentem me vincit me QVESTION XV. Whether may he who has the Survivance of Imployment challenge any Precedency upon that Account To this it is answered That he cannot Claim any Precedency For though there be there the hope of Succession and that the person to succeed be in actu proximo and that likewise it may seem that he is advanced to a Dignity and so ought to have a Precedency suteable to it and that it may likewise seem fit for the Interest of the Commonwealth that these should be Respected and Preferred who are marked out for the Service of the Common-wealth Yet Law nor Custom have given them no Precedency for since they have actually no Dignity nor Power they ought to have no actual Precedency And thus it was found by the Parliaments of Paris and Tholows in anno 1551. 1560. that these who had Survivances were onely to be preferred according to the dates of their actual Admission And so these who were Admitted to be Councellours or Judges after they got their Survivance ought to have the Precedency from them if they did actually administrate before them vid. Maynerd Notabil quest cap. 72. Math. de afflict deciss Neapolitan 1. QVESTION XVI Whether does the Daughter of a Lord who would himself have been an Earl if he had lived take place from the Daughter of a younger Earl It may be alleaged that the Daughter of the Lord should not preceed because an Earles Daughter should still preceed a Lords Daughter and this Ladies Father was never an Earl nor are We to consider futur Honours in the matter of Precedency And as she would not take it in her Fathers time so neither ought she after his death And as her Father himself being a Lord though an Earles Son would not have taken place from the younger Earl so neither should the Lords daughter from the Earles daughter he being a younger Earl then that Lords Father And I find by the Heraulds Records in England that Sir Thomas Lees daughter got a Warrand from the King to take place as a Lords Daughter her Father having died before his Father the Lord Lee which proves that she could not have taken place otherwise and this is commonly receiv'd in England But yet it may be Debated That the Daughter of that Lord should have the Precedency since her Father would have been an elder Earl And though she could not take place during her Grand-fathers time who was the elder Earl yet per jus accrescendi and the right of Representation she comes after her Grand-fathers death to be the Daughter of the elder Earl for Honour is but a part of Succession and therefore as she might have right to her Fathers Succession if she have not Brothers she may by the same reason have Right to the Honours And it were very ridiculous to Argue so as that her elder Brother if she had any might take place as an Earles Grand-child and that she could not take the same place as his Sister and consequently since he would take the place of that younger Earl so should she of that younger Earles Sister or Daughter And the Reason why she comes to a higher Degree of Precedency by the death of her
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
in their respective Robes and Crowns on their Heads Coming before the King they made their Reverence Then they were led up by the Master of Ceremonies some steps and sitting down on their Knees on Velvet Cushions the Lyon made an Harrangue both to His Majesty and to them Declaring to the Noblemen That it pleased His Majesty to promote them to that Dignity and that he desired them to Fear GOD and obey His Power Then he took their Oaths that they should obey GOD his Majesty and mantain the Religion then profest Thereafter the Lyon delivered to His Majesty the Patents and His Majesty redelivered them to the Lyon who gave them to the Noblemen In token that they should obey GOD and His Majesties Laws Afterwards the Lyon delivered His Majesty the Marquesses Coronets His Majesty redelivered them to the Lyon The Lyon put the Crowns on their Heads saying Iohn Marquess of Hamilton Earl of Arran Lord Even c. George Marquess of Huntly Earl of Enzie Lord Gordon and Badzenoch c. The same was Proclaimed furth of the windows by the Heraulds and Pursivants with sound of Trumpet Then were they conveyed to their Seats and placed above the Earles upon the Kings left Hand Trumpets sounding The Lyon desired His Majesty to Honour the Gentlemen who bare the Honours with the Honour of Knight-hood His Majesty consented The Lyon caused them sit down on their Knees at the foot of all the Stage and after he had made an Exhortation to them and received all their Oaths they holding up their Hands and promising to obey all the Injunctions The Lyon presented the Sword to His Majesty who stroke each of them therewith on the Right shoulder and Sir offered the Spur the Lyon first proclaiming their Styls and after the Heraulds and Pursivants at the windows with sound of Trumpet I find this Difference in the Creation of many Earles from what is here set down That the four Gentlemen bear the Honours thus The first the Penon the second the Standart the third Sword and Belt the fourth the Crown and lastly the Lyon bear the Patent in a Velvet bag And that the Lyon offered first to His Majesty the Sword and Belt and receiving it back put it on the Person Nobilitat As also when the King was not present and after His going to England The Ceremony was performed be His Majesties High Commissioner if there was one at the time Or otherwise a Writ was direct to the Lord Chancellor appointing him Commissioner for that Creation And then the first thing that was done after the person to be Created was brought in the Lyon gave the Patent to the Commissioner who gave it to the Register or Clerk of Council to be read And I Observe this in all Our old Creations that if the person to be Dignified was a Lord formerly he was conveyed in be two Lords and the Ceremony of the new Creation being over was conveyed to his place by two of that degree to which he was advanced The English Nobility are sometimes Created by being called in a Write to Parliament under the Designations of Earles Viscounts c. Which way is unknown to Us in Scotland though the King may introduce it at His pleasure The Precedency amongst Subjects is thus Established in both Kingdoms Dukes of the Blood Royal Other Dukes according to their Creation The Eldest Sons of Dukes of the Blood Royal Marquesses according to their Creation Dukes Eldest Sons Earles according to their Creation Marquesses Eldest Sons Dukes Younger Sons Viscounts according to their Creation Earles Eldest Sons Marquesses Younger Sons Barrons whom We call Lords Viscounts Eldest Sons Earles Younger Sons Barrons Eldest Sons Barronets Viscounts Younger Sons But the Officers in England are by Act of Parliament Henry the 8. thus Ranked Lord Chancellour Lord Thesaurer The Lord President of the Privy Council The Lord Privy Seal These four being of the Degree of a Barron or above shall sit in Parliament and all Assemblies of Council above Dukes not being of the Blood Royal. The Lord Great Chamberlain The Lord High Constable of England The Earl Marishal of England The Lord Admiral of England The Lord Great Master or Steward of the House The Lord Chamberlain of the Houshold These last Six and the Kings principle Secretary take place according to their present State So that if they be Barrons they take place above all Barrons If Earles above all Earles If Dukes above all Dukes By a Decree and Establishment under the Great Seal of England 1 o. Iacobi the following persons are thus Ranked Knights of the Garter Knights of the Privy Council The Master of the Wards and Liveries The Lord Chancellor and Under-Thesaurer of the Exchequer The Chancellor of the Dutchy The Chief Justice of the Kings Bench The Master of the Rolls The Chief Justice of the common Pleas The Chief Barron of the Exchequer The other Judges and Barrons of the degree of the Coif The Younger Sons of Viscounts The Younger Sons of Barrons The Barronets The Precedency amongst Our Nobility differs nothing from what is here set down England and We agreeing in all points since the Union of the two Kingdoms And especially since the Coronation of King Charles the first at which time he Declared he would have it so But to prevent Differences betwixt the Nobility of both Kingdoms It was Ordered That all those of the same Degree in England should in England take place from all those of the same Degree in Scotland And all those of the same Degree in Scotland should in Scotland take place of the English That is to say All the English Dukes should take place in England of all the Scots Dukes And all the Scottish Dukes in Scotland should take place of all the English Dukes which was very Just and Suetable to the Laws of Nations But as to the Ranking of Our Officers We Differ much from England For clearing whereof it is fit to know That with Us there were Officers of the Crown and Officers of State The Officers of the Crown were all Designed of Scotland as Constabularius Scotiae c. In King Malcom the II. his Parliament The Offices then Extant were The Chancellour the Justice General the Chamberlain the Steward the Constable and Marishal and they are thus Ranked and have their Respective Fees But by the Act 31. Parl. 11. Ia. 6. The Offices of the Crown are Declared to be The Thesaurer Secretar the Collector which Office is now joyned with the Thesaurers the Justice General Justice Clerk Advocat Master of Requests Clerk of Register And though these be called Officers of the Crown there I conceive they Differ not from the Officers of State And these words Officers of the Crown and Officers of State are now Equipollent Terms so far that all the Officers of State are Officers of the Crown by this Act But the High Chamberlain Constable Admiral and Marishal are Officers of the Crown but are not Officers of State
The speciality of Officers of State being That in all Acts or Meetings which concern the State they sit as Members by Vertue of their office as in Parliaments Conventions c. where the Chamberlain and Admiral come not as such nor the Constable and Marishal if they were not Earles The Officers of State have oft contended for Precedency amongst themselves And therefore King Iames did in Privy Council upon the 17. of Iune 1617. Declare That in that and all other Parliaments none should sit as Officers of State save eight and though there should be moe of the saids Officers by Deputation Division or otherwise Yet eight onely should sit which eight he did thus Rank by Act of Council Thesaurer Privy-Seal Secretary Register Advocat Justice Clerk Thesaurer-deput Mr. of Requests And yet His Majesty having appointed Sir Archibald Atchison to be second Secretary and he having contended that his place was to be next the principal Secretary This was Opposed by the Register and Advocat founding themselves upon the said Act of Council It was answered thereto That His Majesty might notwithstanding of the said Act have as many Secretaries as he pleased and by that His Majesty was only Limited to eight Officers of State in Parliament But that notwithstanding thereof he might make use of any eight he pleased and accordingly he had made use of the Chancellor Collector and Comptroller as Officers of State in several Parliaments notwithstanding that they are none of the eight Officers mentioned in this Act Likeas K. Ia. had appointed the Lord Chancellor being a Nobleman to sit amongst the Noblemen and not as Chancellor or an Officer of State The Council did remit this Debate to the King I find that upon the 20. of February 1623. the whole matter of Precedency amongst His Majesties Officers and Counsellors is thus Stated The Lord Chancellor The Lord Thesaurer The Arch-bishop of St. Andrews The Arch-bishop of Glasgow The Earles and Viscounts according to their Ranks Bishops according to their Ranks Lord Privy Seal Lord Secretary Lord Register Lord Advocat Lord Justice Clerk Lord Thesaurer-deput The Lords of the Session according to their Admission Barrons and Gentlemen being Counsellors according to their Admission It is observable from this Act that Lords of the Session have Precedency from Privy Councellors in Scotland otherwise any Counsellor of an elder Admission would be preferred to them And yet in England Privy Councellors are preferred to all the Judges and even to the chief Justices And with Us I find no Privy Councellor take place as such from any person whatsoever which seems very strange For since the Judicatur it self is placed before the Session and that its President hath Precedency from the President of the Session that therefore its Judges ought to preceed the Judges of the Session 2 do Though the Lords of Session are Lords of Council and Session yet there being Secret Councellors gives them a greater nearness and Argues a greater Trust And in all matters of Precedency these are the Chief Topicks for Precedency 3 o. In Law Counsellours are called by the Emperour Pars Corporis nostri l. quisquis C. ad L. Iul. Majest And so to assault them was Treason and is with Us. 4 o. In France this Question betwixt the Members Magni Concilii and the Senators of the Parliament of Paris is Debated by Boerius and he prefers the Counsellours And in Sweden they have place from all the Nobility 5 o. The Lords of Privy Council have more supereminent power then the Lords of Session For they can stop the Precedor of the Justices they can Adjourn the Session they can grant Precognitions moderat punishments c. Notwithstanding of all which such Respect has Our Kings to the Lords of Session who Distribute Justice Equally to the People that they still preferred them to all the Subjects except the Lords of Parliament and their eldest Sons It has been contended by the Younger Sons of Noblemen That they ought to have Precedency from the Lords of Session Because sayes the second Son of an Earl I have Precedency from the Eldest Son of a Lord and yet he has place from the Lords of Session and it is a certain Rule in Precedency That if I preceed you I must preceed him who preceeds you And if an Earles second Son and a Lords eldest Son and a Lord of Session did meet together the Earles second Son could not preceed the Lords eldest Son except he preceeded also the Lord of Session To which nothing can be answered save that the eldest Sons of Peers being presumptive Peers and such as will be Peers It is fit that the Lords of Session who have but a Temporary Precedency should not preceed them But I find that though in England the younger Sons of the preceeding Rank take still the place from the eldest Son of the next mediat as the younger sons of Dukes from the eldest sons of Earles and the younger Sons of Marquesses from the elder Sons of Viscounts And that all the Chain of Precedency is founded upon this Gradation and that it seems that Nature has led men to this Establishment Yet the eldest Sons of Our Lords Lord Barons refuse to Cede to the second sons of Earls and it was so of old with Us and that which may be given as a Reason for this is that it is unreasonable That they who are to be Peers and to have a constant Title should Cede to such as have but a Temporary Honour But if this Reason were sufficient the younger Sons of Dukes should not preceed the eldest Sons of Lord Barons With Us the eldest Sons of Lord Barons are Design'd Masters as the Master of Rosse c. And of old the Uncles of Lords after the Death of their elder Brother though he left a Son were called Masters till the Nephew had a Son For which I know no other Reason but that because they wanted a Tittle they took this For their Father being Lord there was no Degree below to take as the elder Sons of Earles took that of Lord. And I believe that thus the word Master was given in England to meaner People when their name was not known For though the word Dominus was refused by Augustus as importing Slavery which the Romans could not bear rather then from a secret Impulse as St. Augustin sayes In respect Our SAVIOVR was then Born who was the True Master since Sueton tells That Tiberius also refused this Title yet in Complement even then such as were not known were called Domini Obvios sayes Seneca si nomen non succurrit Dominos salutamus and thereafter with the Roman Slavery this Title grew from being a Complement to be a Duty And thus the Grecian Emperour was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the eldest son 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and from this Title of Master came Meship amongst Us which was given to all such as had not a special Title as Lord Sir
but appointed Sheriffs who depended upon their own Nomination and were therefore called Vicecomites In Bretagn Barons take place from Viscounts But there are no Viscounts in Germany Bourgrave being in their place Speculat tit de Vicecometatu la Roque de nobilit C. 83. We had no Viscounts in Scotland before 1606. for by the aforesaid Decreet the Lord is declared next to the Earl Barons according to Spelman sunt Clientes Feodales Vassalli Capitales qui Pagos Vrbes Castra vel eximiam ruris portionem cum Iurisdictione acceperunt a Rege And the word according to him comes from Vir or Vi i. e. robur belli But it is more probable that it comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 gravis they being chosen wise and Discreet men With Us all are called Barons who hold their lands of the King in libera Baronia and who have power of pit and gallows and of old they were all heritable Members of Parliament as all Barons in England are as is clear by Act 52. Parl. 3. Ia. 1. whereby all Barons are appointed to come to Parliament and though this Act may seem to be abrogated by the 101. Act Parliament 7. Iames the first whereby the Barons of each Shire are allowed to choose two wise men to Represent them which is the custom at this day Yet it is observable that though by that Act they may for their conveniency choose two yet they are by no express Law discharged to come in greater numbers And by the 78. Act Par. 6. Ia. 4. no Baron that had below the Rent of 1OO Merks was to be compelled to come to Parliament unless the King particularly wrote for him And when Taxations were laid on by the Council I find by the old Records as particularly in October 1562. that Noblemen and Burgesses are called but no Barons the Barons and Noblemen having been then represented promiscuously and that long after the Act of Parliament allowing them to send Commissioners And this is the Reason why Our old Barons who are not Lords and hold onely their lands in free Barony have supporters in their Atchievement and that with some reluctancy they yeeld the Precedency to Knights-Baronets they being Originally heritable Counsellours to the King as Members of Parliament and not Debarred The several Degrees of Nobility before Treated of did alwayes bear their respective Coronets as in England excepting the Lords who had no Coronet till the year 1665. There being a Warrand under His Majesties hand in Iune 1665. Allowing to the Barons or Lords of Parliament in Scotland a certain Crimson Velvet Cape with a Golden Circle decored with six Pearles on the Top equally distant one from another which is the same with the Barons Coronet in England But the figure of this Coronet on the margine of the principal Signator is done far contrare to the words in the Body The same having points like to that of the Earles which has certalnly been a mistake and ignorance in the Painter and ought to be adverted to be the Lyon and Heraulds This Warrand is Registrat in the books of Council and in the Lyon Books I have here set down for the Readers further Satisfaction a List of all the Nobility at present in this Nation their Sir-names and Principal Titles And Titles of their Eldest Sons With such Officers as have Precedency be Vertue of their Offices The Duke of Albany onely Brother to His most Sacred Majesty Lord Chancellour Lord Thesaurer Lord President of the Privy Council Lord Privy-seal Lord Secretary above all of his degree â‚ Nota. Stuart Duke of Lennox was the premier Duke but this Family is lately extinct DUKES Hamilton Duke of Hamilton His Eldest Son Earl of Arran Scot Duke of Buccleuch His Eldest Son Earl of Dalkeith Maitland Duke of Lauderdale His Eldest Son Earl of Lauderdail Lenos Duke of Lennox His Eldest Son Earl of Darnly MARQUESSES Gordon Marquess of Huntly His Eldest Son Lord Gordon Dowglas Marquess of Dowglas His Eldest Son Lord Angus Graham Marquess of Montrose His Eldest Son Lord Graham Murray Marquess of Athol His Eldest Son Lord Murray EARLES Campbel Earl of Argyl His Eldest Son Lord Lorn Lindsay Earl of Crawsurd His Eldest Son Lord Lindsay Hay Earl of Errol His Eldest Son Lord Hay Keith Earl Marischal His Eldest Son Lord Keith Gordon Earl of Sutherland His Eldest Son Lord Strathnaver Areskin Earl of Marr His Eldest Son Lord Areskin Graham Earl of Airth and Monteith His Eldest Son Lord Kilpont and Kilbryd Lesly Earl of Rothes His Eldest Son Lord Lesly Dowglas Earl of Morton His Eldest Son Lord Aberdour Areskin Earl of Buchan His Eldest Son Lord Auchterhouse Cuningham Earl of Glencairn His Eldest Son Lord Kilmawrs Montgomery Earl of Eglington His Eldest Son Lord Montgomery Kennedy Earl of Cassils His Eldest Son Lord Kennedy Stuart Earl of Murray His Eldest Son Lord Down Maxwel Earl of Nithisdale His Eldest Son Lord Maxwell Seton Earl of Winton His Eldest Son Lord Seton Livingston Earl of Linlithgow His Eldest Son Lord Livingston Home Earl of Home His Eldest Son Lord Coldingham Drummond Earl of Pearth His Eldest Son Lord Drummond Seton Earl of Dumfermling His Eldest Son Lord Fyvie Fleeming Earl of Wigton His Eldest Son Lord Fleeming Lyon Earl of Strathmore and Kinghorn His Eldest Son Lord Glames Hamilton Earl of Abercorn His Eldest Son Lord Paslie Ker Earl of Roxburgh His Eldest Son Lord Ker Areskin Earl of Kelly His Eldest Son Lord Pettinweem Hamilton Earl of Haddington His Eldest Son Lord Binning Stuart Earl of Galloway His Eldest Son Lord Garlies Mackenzie Earl of Seaforth His Eldest Son Lord Mackinzie Ker Earl of Lothian His Eldest Son Lord Newbottle Hay Earl of Kinnoul His Eldest Son Lord Duplin Campbel Earl of Lowdown His Eldest Son Lord Mauchlaâ— Crichton Earl of Dumfries His Eldest Son Lord Crichton Dowglas Earl of Queensberry His Eldest Son Lord Drumlanerick Alexander Earl of Striveling His Eldest Son Lord Alexander Bruce Earl of Elgin His Eldest Son Lord Kinlosse Carnagie Earl of Southesk His Eldest Son Lord Carnagie Stuart Earl of Traquair His Eldest Son Lord Linton Ker Earl of Ancram His Eldest Son Lord Nisbets Weems Earl of Weems His Eldest Son Lord Elcho Ramsay Earl of Dalhoussie His Eldest Son Lord Ramsay Ogilvy Earl of Airly His Eldest Son Lord Ogilvy Ogilvy Earl of Findlator His Eldest Son Lord Deskfoord Dalziel Earl of Cranwath His Eldest Son Lord Dalziel Livingston Earl of Callender His Eldest Son Lord Almond Lesly Earl of Leven His Eldest Son Lord Balgonie Ruthven Earl of Forth His Eldest Son Lord Ettrick Iohnston Earl of Anandale His Eldest Son Lord Iohnston Maule Earl of Panmure His Eldest Son Lord Maule Murray Earl of Dysert His Eldest Son Lord Huntingtour Hay Earl of Tweeddale His Eldest Son Lord Yester Carnagie Earl of Northesk His Eldest Son Lord Rosehill Bruce Earl of Kincardin His Eldest Son Lord Bruce Lindsay Earl of Balcarras His Eldest Son Lord Balneâ—l Dowglas
Earl of Forfar His Eldest Son Lord Wendal Midleton Earl of Midleton His Eldest Son Lord Clearmont Scot Earl of Tarras His Eldest Son Lord Alemoor Gordon Earl of Aboyn His Eldest Son Lord Glenlivet Boyd Earl of Kilmarnoch His Eldest Son Lord Boyd Cochran Earl of Dundonald His Eldest Son Lord Cochran Dowglas Earl of Dumbritan His Eldest Son Lord Dowglas of Attrick Keith Earl of Kintore His Eldest Son Lord Inverury Sinclar Earl of Caithnes His Eldest Son Lord Berrendule VISCOUNTS Cary Viscount of Faulkland Constable Viscount of Dumbar Murray Viscount of Stormont Gordon Viscount of Kenmore Arbuthnet Viscount of Arbuthnet Crichton Viscount of Frendraught Seton Viscount of Kingston Macgil Viscount of Oxenford Livingston Viscount of Kilsyth Osburn Viscount of Dumblane LORDS Forbes Lord Forbes Fraser Lord Salton Gray Lord Gray Cathcart Lord Cathcart Sinclar Lord Sinclar Dowglas Lord Mordington Semple Lord Semple Elphingston Lord Elphingston Oliphant Lord Oliphant Fraser Lord Lovat Borthwick Lord Borthwick Ross Lord Ross Sandilands Lord Torphichen Lesly Lord Lindors Elphingston Lord Balmerinoch Stuart Lord Blantyre Areskin Lord Cardross Balfour Lord Burleigh Drummond Lord Madderty Cranston Lord Cranston Melvil Lord Melvil Napier Lord Napier Fairfax Lord Cameron Richardson Lord Crawmond Macky Lord Rae Forrester Lord Forrester Forbes Lord Pitsligo Mackleland Lord Kircudbright Fraser Lord Fraser Hamilton Lord Bargeny Ogilvy Lord Bamff Murray Lord Elibank Galloway Lord Dunkel Falconer Lord Halkerton Hamilton Lord Bethaven Sandilands Lord Abercromby Carmichal Lord Carmichael Sutherland Lord Duffos Rollo Lord Rollo Ruthven Lord Ruthven Colvil Lord Colvil Mackdonald Lord Mackdonald Bellenden Lord Bellenden Lesly Lord Newwark Rutherfurd Lord Rutherfurd Ker Lord Iedburgh Weems Lord Bruntisland ¶ It is to be observed that the eldest Sons of Viscounts and Lords are designed Masters by their Fathers Titles Lord Thesaurer-deput Lord Register Lord Advocat Lord Iustice-Clerk This is the Precedency stated by the present Rolls of Parliament albeit it is not acquiesced in by all the Nobility For the Earl of Sutherland contends with all the Earles who are ranked before him and generally such as are dissatisfied with these Rolls do protest whilst the Rolls are called against such as they conceive are unjustly ranked before them Sometimes also the Son has a different Precedency from what was possessed by his Father As the Earl of Lothian who now as succeeding to his great Grand-father by the Mother comes to have his Precedency next to the Earl of Wigton though his Father taking place by a new Patent was ranked as in the above written Rolls The Justice General pretends to the same precedency with the Lord Chief Justice of the Kings Bench in England by a report made by the Lord Thesaurer in the Kings name the 17. Iune 1637. but neither is the Letter to which this report relates extant nor has he been in possession since And it is fit to observe that notwithstanding of what is said before page 42. by a Servants mistake that the Lord Privy-seal takes place with us as in England The Order of Baronet in Scotland was erected for advancing the Plantation of Nova Scotia in America and for settling a Colony there to which the Aid of these Knights was Designed The Order was onely intended be K. Ia. 6. before his Death for in his first Charter of Nova Scotia in favours of Sir William Alexander 10. Septem 1621. And in another Charter granted to Sir Robert Gordon of Lochinvar of a part of Nova Scotia Designed the Barony of Galloway 8. Novem. 1621. there is no mention made of this Order So that the same was onely erected by K. Charles 1. anno 1625. In the several Patents granted to Baronents His Majesty did dispone to each of these Knights a certain portion of land in Nova Scotia erecting the same in a free Barony with great and ample priviledges unnecessary to be insert here And moreover for their encouragement did Erect Creat Make Constitute and Ordain that Heritable State Degree Dignity Name Order Title and Stile of Baronet to be enjoyed be every of these Gentlemen who did hazard for the good and increase of that Plantation And so preferred them to that Order and Title Creating them and their Heirs Male heritable Baronets in all time coming with the Place Preeminency Priority and Precedency in all Commissions Breeves Letters-patents Namings and Writes and in all Sessions Conventions Congregations and places at all times and occasions whatsomever before all Knights called Aequites aurati all lesser Barons commonly called Lairds and before all other Gentlemen Excepting Sir William Alexander His Majesties Lieutenant of Nova Scotia who with his Heir their Wives and Children conform is not onely excepted in each of these Letters-patents granted to the Knights his Consorts But likewise the Charter granted to himself be King Charles 1. 1625. did bear expresly this exception and provision As also excepting Knights-Bannerets who should be Created under the Royal Standard in His Majesties Army and in open War the King himself being present and that during the Bannerets lifetime onely And with Precedency before all of the same Order whose Patents are of a posteriour date His Majesty did moreover Declare and Ordain That the Wives of these Knights and of their Heirs Male should have the Precedency aswell after as before the deaths of their Husbands if they should happen to survive before the Wives of all those of whom the Knights Baronets and their Heirs Male had the Precedeny and even before the Wives of Knights-Bannerets before excepted the Degree of Baronet being heritable And also that the Children Male and Female of the Baronets should take place before the Bairns Male and Female respectively of all persons of whom the Baronets and their Heirs Male had the Priority And likewise before the Children of the Bannerets and that the Wives of the Sons of the Baronets and of their Heirs Male should preceed the Wives of all persons whom their Husbands might preceed and that aswell their Husbands being dead as living And further His Majesty did Declare and Promise That whensoever the eldest Sons and appearand Heirs Male of the Baronets should attain to the Age of twenty one years they should be by His Majesty and his Successours created Equites aurati or Knights Batchelours without payment of any Fies or Dues for the same providing they should desire it But here it is to be observed that some of the eldest Sons of Baronets pretend to the title of Knight at their Majority be vertue of this clause without any previous desire or dubbing which certainly is an errour for if they will not be at the pains to desire it of His Majesty or His Commissioner they should not assume it Likeas His Majesty did Declare and Ordain That the Baronets and their Heirs Male should as an additament of Honour to their Armorial Ensigns bear either on a Canton or Inescutcheon in their option the Ensign of Nova Scotia being argent a cross of St. Andrew azur the Badge of
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
any who have sworn Alleadgeance and live within the Spainish Dominions though not within Milain since then the English would not allow us the Right of Sucession nor the other benefits due naturally to Subjects it was strangely monstruous and repugnant that they designed to make the World believe that we were Subjects It is also very remarkable that if our Kingdom had been only a Feu holding of England our Nobility could not have precedency from others according to their Antiquity for all the Nobility of the Superiour Kingdom ought in the opinion of such as writ of precedency to be preferred to these who live in the Vassal-kingdom 10. If Scotland had been a Feu to England the king of England as Superiour would have had the keeping of our young Princes and the disposing of them in Marriage and the Feu would have been in his hand during their Minority that being implyed in the Right of proper Feus by the Feudal Law And this must be presumed to have been a proper Feu as all Feus are presumed to be except the Vassal can prove that the Nature of the Feu was impropriated for the Vassals Advantage But yet no king of England did ever pretend to the Guardianship of our young Princes nor to name Governours during their Minority But on the contrare Alexander king of Scotland having left only a young Princess called Margaret who was Nice to the King of England he did not pretend to the keeping of the young Princess but intreated that she might be married to Edward the second his son and that if there should be no issue of that Marriage Scotland should remain a free Kingdom as it was formerly inthe dependent from all pretentions of the kings of England Which is likewise another acknowledgement made by the kings of England themselves of the independency of Scotland And if the kings of England had been Superiours of Scotland there would have been some Vestige of this Superiority to be seen in our Laws whereas all our Laws call still our Crown the Imperial Crown of Scotland Or in our Coyne all Coyns bearing some Impressions from the Superiour And the Kings of England might have remanded from our Courts or out of our Country such as had committed crimes against their kings or Laws It being an undoubted principle of the Feudal Law That qui habet dominium directum potest jurisdictionem suam explicare tam in territorio Vassalli quam in suo habet enim dominus jurisdictionem cumulativam cum Vassallo But so it is that it can never be alleadged That the Kings of England offered to exerce any Jurisdiction in Scotland or did require any criminals who had fled into Scotland to be delivered up to them Nor did ever the English pretend to punish such Scotsmen as were taken fighting against them abroad as Traitors and Guilty of Treason as certainly they would have done if they had been Vassals to England But on the contrair the English did also ransome them and use them every way as they did other Strangers and Forreigners 11. The Scots having intended a Declarator of Freedome against Edward the first king of England the Process was delegated by Pope Boniface the VIII to Baldredus one of the greatest Lawyers of that time who considered very fully the Reasons proponed hine inde by both parties and having made a full Report to the Pope the Pope did very sharply reprove the king of England and declared that Scotland did not depend upon it any manner of way and that the English had attacked Scotland most unjustly against all both Divine and humane Laws as Duchesne observes pag. 66. The Letter it self that was writ to the king of England with all the process which was called Processus Baldredi being yet extant in Fordons Chronicle And it cannot be denyed but that England might have expected much more favour from the Pope than Scotland could since they payed him a constant Revenue called Peters pence and since England was known to afford much greater Casualties to the Pope then could have been expected from this kingdom In stating the Arguments which are proposed by the English for proving that the kings of Scotland were Vassals for their Crown to England I shall begin with these which were insisted upon by King Edward the 1. in the former process The first was That Brutus descended from the Trojans did conquer Britain and divided it amongst his three sons to the Eldest of whom called by Historians Locrin or Locuus as he is termed in that process he left Logria now called England To the Second called Albanactus he left Albanie now called Scotland To the Third called Camber he left Cambria now called Wales But Humbert King of the Huns having killed Albanactus Locrin the elder to revenge his brothers Death did kill Humbert and reunite Albanie to Logria or England The second was That Donvall king of the Britans killed Staterius king of Scotland who rebelled against him and became Master of the whole Isle which Dunvall having two sons Belinus and Brounus he left the Superiority of Scotland with England to the eldest and the property only of Scotland to the second The third was That Arthur king of the Britans having overcome Scotland he gave that kingdom to Angusell who acknowledged him as his Superiour and carried the Sword before him The fourth was That Aldestan king of England having conquered Constantine king of Scotland did pray to GOD that by the intercession of St. Iohn de Benlaco he might by a miracle be declared the just Superiour of Scotland Whereupon he did strick with his sword at a Rock near Dumbar and made a Gape in it a full yard in length The fifth was That William king of Scotland did acknowledge himself Vassal to William the Conquerour Alexander king of Scots acknowledged himself Vassal to king Henry And that the Nobility of Scotland called in the said Edward to arbitrate the Differences betwixt the Bruce and Baliol. Peter Heylen speaking of Scotland in his Geographie pag. 1289. affirms That the Kings of Scotland were still Vassals to the Crown of England which he endeavours to confirm by these Arguments 1. By the Homages Services and other Duties done by the kings of Scotland to those of England Malcome the third doing Homage to William the Conquerour as William one of his Successors did to Henry the second and that not only for three Counties in the North of England or the Earldome of Huntingdoun as is by some pretended but for the very Crown it self Kenneth the third being also one of those Titulary or Vassal Kings who rowed king Edgar over the Dee 2. By the interposing of king Edward the first and the Submission of the Scots to that interposing in determining the Contraversie of Succession betwixt Bruce and Baliol as in the like case Philip the fair adjudged the Title of Artoys which was holden of the Crown of France and then in question betwixt the Lady Mawd
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
Scotland counterchanged charged with an inescutcheon of the Royal Arms of Scotland supported on the dexter by the Royal Unicorn and on the sinister by a Savage or Wild-man proper and for the crest a branch of Laurel and a Thistle issuing from two hands conjoyned the one being armed the other naked with this Ditto Munit haec altera vincit And that they and their Heirs Male should in all time coming have place in all His Majesties and His Successours Armies in the middle Battel near and about the Royal Standard for defence thereof And that they and their Heirs Male may have two Attenders of the Body for bearing up the Pale one principal Mourner and four Assistants at their Funerals And that they should be always Called Intituled and Designed be the name and title of Baronet and that in all Scottish Speeches and writings the addition of Sir and in all other discourses and writings a word signifying the same should be preponed to their names and other titles and that the stile and title of Baronet should be postponed and subjoyned thereto in all Letters-patents and other writes whatsomever as a necessar addition of Dignity and that each of them should be intituled Sir A. B. Baronet and his and his Sons Wives should enjoy the stile title and appellation of Lady Madam and Dame respectively according to the usual phrase in speaking and writing And also His Majesty did thereby promise That the number of the Baronets aswell in Scotland as the new Colony of Nova Scotia should never exceed the number of 150. albeit this number is at present somewhat augmented and did likewise Declare That He nor His Successours should never Create nor Erect in time coming any other Dignity Degree Stile Name Order Title or State nor should give the Priority or Precedency to any Person or Persons under the Stile Degree and Dignity of a Lord of Parliament of Scotland which should be or should be presumed to be Higher Superiour or Equal to that of Baronet And that the Baronet should have liberty to take place before any such who should happen to be created of any such degree or order and that their Wives Sons Daughters and Sons Wives should have their places accordingly And that if any question or doubt should arise anent their places and prerogatives the same should be decided and judged according to these Laws and Customs by which other degrees of Heritable Dignities have their priviledges cognosced and determined And finally that none should be created Baronet either of Scotland or Nova Scotia till he had first fulfilled the conditions designed by His Majesty for the good and increass of that Plantation and until he had certified the same to the King by His Majesties Lieutenant there These Patents were ratified in Parliament and were always of this form till the selling of Nova Scotia to the French after which time they were made much shorter and granted in general terms with all the Priviledges Precedencies c. of the former Baronets And in the year 1629. His Majesty did allow these Baronets a particular cognisance which will be best known by the coppy of the following Letter direct be his Majesty K. Charles the first to the Privy Council here RIght Trusty and right well beloved Cousin and Counsellour Right trusty and well beloved Cousins and Counsellours and right trusty and well beloved Counsellours We greet you well Whereas upon good consideration and for the better advancement of the Plantation of New-Scotland which may much import the good of Our Service and the Honour and Benefit of that Our ancient Kingdom Our Royal Father did intend and We since have erected the Order and Title of Baronet in Our said ancient Kingdom which We have since established and conferred the same on diverse Gentlemen of good quality And seing Our trusty and well beloved Counsellor Sir William Alexander Knight Our principal Secretary of that Our ancient Kingdom of Scotland and Our Lieutenant of New-Scotland who these many years bygon hath been at great charges for the discovery thereof hath now in end a Colony there where his Son Sir William is now resident And We being most willing to afford all the possible means of encouragement that conveniently We can to the Baronets of that Our ancient Kingdom for the furtherance of so good a work And to the effect they may be honoured and have place in all respects according to their Patents from Us We have been pleased to Authorize and Allow as by these presents for Us and Our Successours We Authorize and Allow the said Lieutenant and Baronets and every one of them and their Heirs Male to wear and carry about their Necks in all time coming an Orange tannie silk ribbon whereon shall hang pendant in a Scutcheon argent a saltir azur thereon an Inscutcheon of the Arms of Scotland with an Imperial Crown above the Scutcheon and incirled with this motto Fax Mentis Honestae Gloria Which cognisance Our said present Lieutenant shall deliver now to them from Us that they may be the better known and distinguished from other persons And that none pretend ignorance of the Respect due unto them Our Pleasure therefore is that by open proclamation at the mercat-cross of Edinburgh and of all other head Burghs of Our Kingdom and such other places as you shall think necessar you cause intimate Our Royal pleasure and intention herein to all Our Subjects And if any person out of neglect or contempt shall presume to take place or precedency of the said Baronets their Wives or Children which is due unto them by their Patents or to wear their Cognisance We will that upon notice thereof given to you you cause punish such offenders by Fining or imprisoning them as you shall think sitting that others may be terrified from attempting the like And We Ordain that from time to time as occasion of granting or renewing their Patents or their Heirs succeeding to the dignity shall offer that the said power to them to carry the said Ribbon and Cognisance shall be therein particularly granted and inserted And We likewise Ordain thir presents to be insert and Registrate in the books of Our Council and Exchequer and that you cause Registrate the same in the books of the Lyon King at Arms and Heraulds there to remain ad futuram rei memoriam And that all parties having intress may have authentick copies and extracts thereof And for your so doing these Our Letters shall be unto you and every one of you from time to time your sufficient Warrand and Discharge in that behalf Given at Our Court at Whitehall the 17. of November 1629. years The order of Baronet in England was erected by King Iames the sixth for advancing the plantation of Vlster in Ireland and these Knights have Priviledges and Precedencie much like to those above set down and there being a Contraversy for Precedency betwixt them and the younger sons of Viscounts and Barons managed in
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