[1661/1/365]*[print] [email] [cite] [preceding] [following]
Forasmuch as it being moved in parliament by James, earl of Callander that it might be declared by the king's majesty and estates of parliament that he the said James, earl of Callander, and his successors in the said title and dignity, ought to have the precedency of the earl of Leven and his successors, conforming to the priority of his patent, notwithstanding that the earl of Leven and his deceased father had, through the iniquity of the times, been in possession of the precedency; which motion, being by the lord commissioner's grace and estates of parliament referred to the lords of the articles to be examined by them, upon hearing of both parties and thereupon to report their opinion to the parliament, and both parties required to attend the lords of the articles for that effect, the said James, earl of Callander compearing personally, with Mr William Maxwell and Mr Robert Sinclair, advocates, his procurators, who produced the said earl of Callander's patent dated at Holyroodhouse, 6 October 1641, and craved that he might be declared to have place and priority according to the date of the said patent; and the said earl of Leven compearing also personally, with Mr Andrew Gilmour, Mr Thomas Learmonth and Mr George MacKenzie, advocates, his procurators, who produced the said earl of Leven's patent dated at Holyroodhouse, 11 October 1641, and alleged on behalf of the said earl of Leven: first, a signature is no perfect right until it passes the seals, for the signature is nothing else but a warrant ordaining a letter to be passed and expedited through the seals, which, being passed, then and not until then it becomes a patent of honour, and seals were chiefly appointed for preventing of fraud and surreptitious obtaining his majesty's hand to signatures which are often subscribed by his majesty blank as to the dates, and afterwards filled up by private persons. 2. The earl of Callander has acknowledged the earl of Leven's precedency and that his own signature was an imperfect right until it passed the seals, in so far as in the parliament of 1641, after the subscribing of this signature, he sat as Lord Almond when the earl of Leven sat as earl of Leven. 3. The earl of Leven produced a letter from his majesty's dearest father, of blessed memory, to the late Alexander [Leslie], earl of Leven, wherein his majesty declares that it was never his intent that the earl of Callander should take the place of the earl of Leven. To all which it was answered for the part of the said James, earl of Callander: first, that the conferring titles of dignity, being an act of the king's mere favour and goodwill and his intention therein being sufficiently signified by the subscribing of the signature, there was no necessity that the same should pass the seals, which are only added for grace and greater solemnity, and the decreet of ranking by which all the noblemen that then were do now take their places is ruled by the dates of writs, and that in some cases even where noblemen are designed but as witnesses; and as to the alleged filling up the dates by private persons, it is altogether groundless nor cannot be presumed but the dates being so essential to the thing, his majesty and those entrusted by him will be careful that the same is exactly and truly filled up. 2. As to the earl of Callander's sitting as a lord when the earl of Leven sat as an earl, the earl of Callander pleads the iniquity of the times in his behalf, and further adds that, albeit the earl of Eglinton sat as earl when the earl of Glencairn sat as lord, yet that argument being proposed before the lords of session by the earl of Eglinton in the pursuit between the earl of Glencairn and him for precedency was rejected by the said lords. 3. As to his majesty's letter, the earl of Callander as before pleads the iniquity of the times, and further adds that the letter makes for him, it bearing that his majesty will take course himself in that matter which was never done, and so the earl of Callander can be in no worse condition than before the writing of that letter, and it appears that his majesty by saying that he would take a course in it himself, and also the earl of Leven by pressing such a letter from his majesty, did both judge that the priority was due to the earl of Callander according to the date of his patent. The lord commissioner's grace and lords of the articles, having seen, read, heard and considered the rights, reasons and arguments of both parties and being therewith, well and ripely advised, the said lords of the articles did offer their opinion to the parliament that the earl of Callander ought to have precedency before the earl of Leven. Which opinion, being this day offered to the parliament and the parliament having fully and seriously considered the case, our sovereign lord, with advice and consent of his estates of parliament, approves the said opinion and report of the lords of the articles and decrees and ordains the earl of Callander and his successors in the said title and dignity to have the precedency of and take place before the earl of Leven and his successors in all time coming, according to the date and priority of his patent and that, notwithstanding, that the earl of Leven's patent was first passed the seals and, notwithstanding, of his majesty's letter above-mentioned, which the estates of parliament finds to militate nothing against the earl of Callander's precedency.