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
Opinion that they are to be preferred to the same Dignity in all promiscuous and indifferent Acts which fall in during the time of the Representation and thus Cautuccius decis 582. is of Opinion that the Bishops Viccar sent by him to hold a Synod is to have Precedency before all the Chapter not onely in the Synod it self but likwise in all other Assemblies Visits and Intertainments during his Commission But the contrare of this is mantained by Menoch Consil. 51. And in my Opinion these Doctors may be thus reconciled viz. If the Representation flow immediately from the Law as for instance If the Council should Delegat any man to be Sheriff there the person substitut would have in all cases during his Commission the same place that is due to him in whose place he was surrogat for there Surrogatum sapit naturam surrogati But if the Representation flow from the person himself whom he Represents in that case the Representative has onely the Precedency whilst he is exercising the Office or in Actions thereto relating And thus Sheriff-deputs with us have onely the Precedency due to their Constituents whilest they are exercising these Acts which relate to their Office And yet I think that those Representatives of Subjects have even in all extrinsick and indifferent Acts the Precedency due to their Constituents when they meet with others of the same Degree and thus amongst Sheriff-Deputes c. the Precedency is to be given according to the Precedency that is due to the Principal Sheriffs QVESTION XXXIX What Precedency is due to Assessors appointed for Iudges and to extraordinary Iudges I conceive that Assessors chosen by a Judge get no Precedency thereby since Subjects cannot bestow Dignities but that where the Prince names any man Assessor to a Judicature the person so named has thereby the Precedency next to the Judge to whom he is named Assessor nam est ejus umbra his shadow as the Law speaks and the shadow should follow the body And with Us when the Council names Assessors to the Justices the Assessors vote onely after the Justices And yet in France I find that Assessors take place after the President and before the other Councellours and so it was decided at Paris 1608. It may be also doubted whether Our extraordinar Lords of Session who sit with and vote after the ordinar Judges should have place after them if they were not Earles or Noblemen as by the institution they are oblieged to be but not either as that the King may not promote Gentlemen hereafter quo casn I think they would take place after the ordinar as they vote after them For these extraordinar Lords are like to these adscriptitiâ— or allecti L. 2. C. ut dignit ord servetur of whom Capitolinus in the life of Pertinax quâ—m Commodus allectionibus innumeris praetorios miscuisset senatus consultum Pertinax fecit jussitque eos qui praeturas non gessissent sed allectione accepissent post eos esse qui vere praetores fuissent QVESTION XL. Whether can the King Creat now an new Earl and Ordain him to preceed all the former Earles or any such number of them as he pleases It would seem that the King cannot For there being a Precedency acquired to the former Earles by their first Gift the King cannot by any new gift prejudge third Parties and this were in effect to Forfeit them of their Precedency Likeas it would seem that since most Earldoms were granted by erecting lands in an Earldom in favours of the Receiver that therefore the Concessions of Land and Honours are of the same Nature and that no new grant can prejudge the one more then the other But it may be urged on the Kings part that the King being the onely fountain of Honour he may do therein as he pleases except in so far as he is limited by Law And therefore since there is no Law with us limiting the King in this point he may do therein as he pleases 2 o. The King by Act of Parliament Henry the eight is limited as to this point in England so that he can grant no such Preference And therefore it may be concluded that this was formerly in his power even there and that since he is not limited here his power is here intire as to this point whereof many instances are given in answer to quest 35. and since that statute it is thought that His Majesty may ordain the last Knight to preceed all the rest formerly dubb'd and created because Knights are not exprest in that statute 3 o. We see the King in Scotland does impower Countesses to retain their former Precedency though they marry a Husband of a Rank inferiour to their first Husband And Dukes Daughters even after their Marriage to retain the Precedency due to them as Dukes Daughters 4 o. His Majesty does by new Confirmations transfer the Honours to Hiers Female though the Patents at first were onely granted to Hiers male and so by the not existing of the Hiers Male those Earles who have the next Precedency might aswell alleadge That the King could not by any new right in favours of the Hiers Female prejudge them 5 o. His Majesty does sometimes appoint any of His Officers of State to preceed other as he pleases though these may likewise alleadge that there is jus quaesitum to them by their prior Gifts 6 o. His Majesty restores the Sons of persons forfeited to their Fathers Precedency notwithstanding of the jus quaesitum by others medio tempore 7 o. The King has oblieged himself not to prefer the Knights of Nova Scotia or Knights-Baronets otherwise then according to their Creation which had been unnecssar if the King could not have preferred them by His Royal prerogative Sometimes also His Majesty confirms to the Nobility the entails of their Estates whereby they have power to name their Successour with the Precedency due to themselves which right being ordinarly ratified in Parliament uses to establish and transfer the Precedency upon the Heir or Successour so nominated But since Ratifications pass without observation and oftentimes without reading it may be doubted whether such a Ratification should prejudge even these who were Members of Parliament but much more such as were not present or such as were Created thereafter these Ratifications not being properly publick and Legistative statutes and so can bind onely such as consented QVESTION XLI Whether if the King should creat an Earl with Precedency to all other Earles during his life Or if when an Earl is Forfeited will his Lady in either of these cases retain the Precedency she formerly enjoyed during her Husbands life To which it is answered That as to the first it was expresly decided in England in the case of the Earl of Notingham that he upon the surrender of the Admirals Office being by King Iames allowed the same Precedency that belonged to Iohn Lord Moubray his predecessour That therefore his Lady should enjoy the same Precedency