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 this case, viz. The Mayor or Provost of a City being Patron of a Colledge within their own Town, His Ma∣jesty grants a Commission for visiting that Colledge, wherein he names first the Bishop, then the Mayor, &c. The question may be moved whether the Bishop ought to preceed, because he is first named; or the Mayor because he has most interest, being Patron, Who may likewise alledge, that the Bishops Nomination proceeded onely from the Ordi∣nary Custom of naming Ecclesiasticks first.
As also, If in a Commission of Justiciary, three Lords of the Session being named, and the youngest of the three being first named in the Commission, It may be doubted, whether the Seniority formerly acqui∣red in the Session ought to be Observed, and give Precedency in Sitting and Voting; or if they ought to Sit and Vote, according as they are named in the Commission: And it may be alledged that the Seniority in the Session ought to be Respected, there being a right of Precedency there∣by acquired, which cannot be prejudged by a Nomination, which might have proceeded upon mistake; since it is not to be presumed that His Majesty would Degrade any whom He continued otherwise in so emi∣nent a Dignity: And as if two Brothers were named in a Commission, the elder would sit and vote first, though the younger were first named, that inversion being presumed to proceed from Errour; so ought the same to be observed amongst Judges who are in effect Brothers. Some like∣wise use to Argue in such cases from the reiterated Order of Nomination, and think that if the Persons Commissionated be oft named after the same Order, that the Order of Nomination in that case is presumed to have proceeded from an express Design of giving Preferrence, and this they call argumentum a geminatione actuum; But in my judgement it is no in∣fallible Argument, for these Repetitions proceed in course.