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Her majesty's high commissioner and the estates of parliament, having heard the petition or representation of Sir William Menzies of Gladstains, humbly showing to them that in August 1698 the petitioner, being unfortunately engaged in a tack of the inland excise to commence 1 March 1699, within a few days after the roup there was such an alteration of the season, through the excessive rains and winds, that several persons who had agreed to be partners with the petitioner did resile, which, being represented by him to the lords of treasury, they, to encourage him and the deceased Alexander Wood to sign the tack, did accept such caution as they offered. After the tack was signed the petitioner, both before its commencement and also during its first year, did, by reiterated applications, represented to the lords of treasury that much of the corns were not cut down, and the greatest part of what was cut was utterly insufficient, as was known to all the nation, of which the lords of treasury were so sensible that by the late king's allowance they granted them a considerable supersedere for a great part of the tack duty. Likewise, the petitioner and his partner did before March 1700 freely and ingenuously represent to the lords of treasury that, to continue them in the tack, would be a certain loss to the government, seeing the fund itself and the whole private stocks of them and their cautioners would not make up the tack duty, and therefore, craved that, seeing famine had happened, which by the quality of the tack did make it void, their lordships would liberate them thereof and dispose upon the tack at their pleasure. Whereupon, after remitting the affair to a committee and a most strict inquiry and examination made of the state of the country, the lords of treasury and exchequer, after having obtained the late king's warrant and upon mature deliberation, did supersede them £15,000 of their tack duty, they paying up the remaining £25,000, and further the second year appointed them to collect and uplift by virtue of their tack they finding surety (as they did) for their intromission that year. And so, with great care, pains and expense, they got the most part of the country subset in tacks and for the treasury's security did deliver these subtacks to Robert Rutherford, who got payment thereof accordingly. And yet, over and above all that the petitioner and his partners received these two years, they were necessitated to pay £2,000 sterling out of their own stocks more than the whole fund of the excise did afford. In January 1701 the estates of parliament were so fully satisfied that the fund of excise would not afford payment of the tack duty that they did order the rouping thereof anew and with much difficulty did get the same set at £30,000 sterling per year though there was then a great alteration of the seasons and the victual became much more plentiful than it had been in any of the† preceding years. In 1703 the parliament, having appointed inquiry to be made anent the public funds and causes of the deficiency thereof, those commissioned did in 1704 make report that there was £29,000 sterling deficient of the tack duty of the inland excise between March 1699 and March 1701, which obliged the petitioner (Alexander Wood his partner being then dead) to lay the case before her majesty's commissioner and the estates of parliament by petition. And, being conscious to himself that he had managed the affair with the greatest exactness and caution that was possible for bringing in the fund and, likewise, presuming that the qualifications of famine in the land these two years were so well known that they needed little proof, he did subject himself to a vote of parliament without demanding his procurators to be heard upon the relevancy of these qualifications, and by the vote the parliament did find the tack a standing tack for these two years. But in regard of the petitioners having given in an account of his intromissions with the fund of these two years, they did appoint a scrutiny to be made by a commission of parliament anent the verity of the accounts so given in to be reported this session of parliament, and in the meantime ordained the petitioner to pay £5,000 sterling, whereof the one half at Martinmas [11 November] and the other half at Candlemas [2 February] last bypast. With this vote and judgement, the petitioner being greatly surprised whilst in hurry and confusion of mind thereupon, though he then was and still is satisfied that the account of his intromissions which he had offered to the honourable house, and whereby it was evident that he had paid £2,000 sterling more than the fund had afforded, was and is exact, yet he would have done more by far than was in his power if his partners would have concurred, so that his grace and honourable estates may plainly perceive why it is that the foresaid judgement against the petitioner is not obtempered, his said partners and their representatives having refused to advance one farthing upon pretence that they were neither called nor discerned against, and that if they had been called they would have pleaded upon their legal grounds upon which they presume they would have obtained exoneration. This disappointment from the petitioner's partners does again oblige him in all humility to lay his case before the honourable house and humbly to represent, firstly, that the petitioner by himself and others in his name have frequently attended the commission of parliament appointed for making the foresaid scrutiny in order to clear any seeming difficulties that arose to them thereupon, and does presume that their report is ready and that thereby the ingenuity of the account presented by the petitioner to the estates will appear, notwithstanding of all the suggestions and aspersions put upon him thereon. Secondly, that it seems most reasonable that his partners and their representatives should be brought on an equal foot with him as to any payments beyond what the fund has afforded, and in order thereto that they should be discussed before this honourable house the petitioner, having caused cite them for that effect. Thirdly, that through his partners refusing to concur to make up their parts of the £5,000 sterling, and he not being able to do it by himself, he has been necessitated ever since Martinmas last to abandon his native country to the great prejudice if not utter ruin of himself and family. And therefore, craving his grace and their lordships to take his case into their serious consideration, and in order thereto to prefix a diet for receiving from the foresaid commission the report of the above-mentioned scrutiny, whereby it is hoped his faithful and diligent care in the management, indeed and his ingenuity as to his intromissions conforming to the account which he presented in parliament, will be vindicated and by which he is already £2,000 sterling in advance. And that if his grace and the honourable estates do think fit to appoint him to pay or lose any further than what he has already advanced, it will plainly appear to proceed from the calamitous circumstances the nation then groaned under, and could not possibly be raised out of the fund. Secondly, that his grace and their lordships will be pleased at one and the same time with advising the report to receive in and hear the petitioner's process against partners, that so whether the decision be for or against the petitioner they may be equal sharers therein. Thirdly, that in the interim his grace and their lordships may be pleased to allow a personal protection to the petitioner until the final decision that so he may attend thereupon, without the hazard of imprisonment, whereby it is hoped that he will thereby be enabled to subject those other partners as an additional security for obtempering any decreet of parliament to be pronounced after advising the foresaid scrutiny, as the said petition bears.
And her majesty's said commissioner and estates of parliament, having likewise heard that part of the report of the commission of parliament appointed for stating and examining the public accounts which relates to the said affair, bearing that it being remitted to them to consider whether or not the account given in by Sir William Menzies be a true account, they had made all the enquiry into this matter that possibly they could by taking the depositions of Sir William, his tacksmen and collectors, as to the extent of their tack duties and collections, as likewise, of the sums paid in by them to him. As also, they had examined them conforming to interrogators lying in the clerks' hands, particularly whether or not there were any double tacks, under-hand dealings, promises or gratifications made for concealments, and upon the whole matter they make the following observations. First, that Colin Alison, who was Sir William's subcollector and cashier for the town of Edinburgh and shire of Mid-Lothian, gives up in the account whereon he has declared upon oath an article of £28,000 Scots or thereby of dues in the said town and shire, which Sir William did not give up in his account given in last session of parliament, and the reason given by him, therefore, is that he looked upon the said list of dues as irrecoverable. But they found Sir William added by a docket to the said account the sum of £2,400 received by him before giving in thereof to the parliament, and that since that time he acknowledges himself to have received the sum of £1,900, and found that for the remainder of the said £28,000 Scots he has decreets against the brewers liable in payment thereof, which he produces for his exoneration. Secondly, that whereas he should have taken care to have set subtacks during the first year of his management, he on the contrary suffered the excise to be in collection, because it seems he could not bring it up to the extent of his tack duty with any advantage to himself. But it appeared plainly to the said commission that more could have been made thereof than the collections amounted to. Thirdly, that notwithstanding of the exact enquiry the commission made into this matter, yet they could not discover any double tacks, under-hand dealings, promises or gratifications for concealments. Fourthly, that the salaries given by him to his collectors and surveyors seemed to be a little exorbitant, amounting, in some shires, to near a fifth part of the whole collection. Fifthly, that he made subtacks during the second year of his management for lesser sums than he received the year before by collections, which the said commission of parliament judged to be ill management in respect that the second year of Sir William's tack was by far a year of greater plenty than the first. But as to all these the commission presumed to refer the parliament to a more full and particular account inserted in the minutes of their committee, dated 3 May last, to which is subjoined Sir William's answers, that this matter might appear more clear to the parliament when stated with all the advantages and disadvantages that the observations of the commission and Sir William's answers can suggest. The commission were obliged further to represent to the honourable house that, though by a vote their lordships declared Sir William Menzies's tack to be a standing tack and ordained him to pay in £5,000 sterling at Martinmas and Candlemas last by equal proportions, yet he has been so far from making any payments conforming to their order that he withdrew and went out of the kingdom near eight months ago. In the meantime though their lordships had not empowered the commission to do diligence against him yet, upon application made to the treasury, their lordships ordered his tack to be registered, together with horning and caption after the ordinary manner, as the said report also bears.
And also, her majesty's high commissioner and the said estates of parliament, having also heard the answers to the foresaid report made for Sir William Menzies, and particularly mentioned in his answers to a petition presented to them for the earl of Crawford against him and his cautioners, by which answers Sir William represented that he did, with all humility, take that occasion to vindicate his candour and ingenuity in the management of the foresaid excise the two years above-mentioned, and to clear that the account of his intromissions with the fund, as signed by him and given in to the parliament, was exact that so the insinuations made to the contrary may not be regarded, and in order thereto, his grace and the honourable estates, were entreated to take notice that the commission of parliament in the first paragraph of their report anent the said Sir William do say they had made all the enquiry into this matter that possibly they could by taking the depositions of Sir William, his tacksmen and collectors, as to the extent of their tack duty and collections, as likewise of the sums paid in by them to him. As also, they had examined them particularly whether or not there were any double tacks, under-hand dealings, promises or gratifications made for concealments, and the third observe in the report runs thus: that notwithstanding of the exact enquiry we made into this matter, yet we could not discover any double tack, under-hand dealings, promises or gratifications for concealments, from which it is plain that, since there is no under-hand dealing in the matter, the account given in by him is to be considered as true and exact.
Whereas from the first observation mentioned in the report in relation to the excise of Edinburgh it may appear to some as though the account given in by Sir William thereupon was not exact because, first, he makes no mention therein of £28,000 of dues given up by his subcollectors. Secondly, because he has received £2,400 more than is mentioned in his printed account and, likewise, that he has received £1,900 since last session of parliament, as also, that he has decreets against the brewers for the surplus, to this it was answered: firstly, Sir William in the printed account was not giving account of the whole surveys of the kingdom but only of his actual intromissions with any part of the fund, these surveys being still to be cleared by the particular books, all which he was ever ready to give upon oath; and the printed account was framed in the year 1703 in order to have been given at that time to the committee of parliament, but Sir William, having received about £200 sterling of the rests in and about Edinburgh after the printing of that list, and before presenting thereof to the parliament, he did most justly subjoin thereto the foresaid £200 sterling as received by him since then, and which is contained in the signed account of his intromissions presented to the parliament and still lying in the clerk's hands. Secondly, as a further evidence of Sir William's ingenuity in the matter since the judgement of parliament in the year 1704, he has received £1,946 Scots more of these dues, which he no sooner received than he owned the same to the committee of parliament, and is but a very small proportion of the £2,000 sterling already advanced, and in no way suitable to enable him to obtemper the other judgements of parliament. Thirdly, though the £28,000 of dues mentioned in Colin Alison's deposition, to which the report relates, appear considerable, yet it is not valuable if duly considered, for the same is stated according to surveys and decreets taken thereupon without regard to spilt brews, storted† or returned ale, the death or breaking of brewers. And it is not without difficulty that the foresaid £2,400 and £1,900 has been got out of these dues, and scarce any more can be expected that way.
The second observation in the report runs thus, that whereas he should have taken care to have set subtacks during the first year of his management he, on the contrary, suffered the excise to be in collection because he could not, it seems, bring it up to the extent of his tack duty with any advantage to himself. But it appears plainly to us that more could have been made thereof than the collections amounted to. Least Sir William's silence in this matter should be interpreted to import an acknowledgement of what is contained in that observe, that is that by setting the same in subtacks the first year he might have made more thereof than was done by collection, it is answered: firstly, by the third observe in the report already mentioned the commission owns that there is nothing of under-hand dealing discovered and why Sir William, without the least prospect of advantage to himself, should have endeavoured to disappoint the government of all that could be made of the fund is scarce conceivable, especially seeing, even at that time, it was well known to the whole kingdom that the fund could not make up much above the half of the tack duty, so that he behoved to be at the discretion of the government. Secondly, if there had been any error in that manner of management, it might as reasonably be imputed to the other tacksman against whom there is not yet any decreet of parliament. But thirdly, it is well known, and can be instantly instructed, that Sir William and Alexander Wood did cause print and publish advertisements through all the shires and at all the royal burghs of the kingdom inviting all to come in who inclined to take subtacks of the excise and that several months before the commencement of the tack, and though some persons, upon these advertisements, did come and treat with them for parcels thereof, yet none did offer to bring it the length of the collections, neither would they at all engage unless they had been secured in the tack at that rate for five years. So that the evidences which make it plain to the commission that more could have been made of it the first year than the collections amounted to are such as he neither knows nor can comprehend.
As to the fourth observe, bearing that in some places the salaries given by him to collectors and surveyors were exorbitant, it is answered that it is very well known his fault was not in being too liberal that way but in some shires, though the collections were small, yet the trouble of ingathering them was considerable by reason of the then circumstances of the country which obliged Sir William and partners to give the like allowance as formerly.
The fifth observe bears that in the second year, which was more plentiful than the first, Sir William granted subtacks for lesser sums than he had received the preceding year by collection. To this it is answered that the single instance hereof is only in the shire of Haddington, which was more auspicious the first year than any place of the kingdom, for albeit it had never at any time before paid above £1,000 per annum, yet that first year by collection it did afford £976, but in the second all that Sir William could make of it was £870, which he judged to be more reasonable than to depend upon the uncertainty of a collection.
In the close of the report it is represented that Sir William Menzies withdrew and did not make payment of the sum which he was appointed to pay, and whereupon diligence by appointment of the lords of treasury is gone out against him. To this it is answered that it was not contempt but absolute incapacity to obtemper that made him withdraw and which was occasioned through the representatives of his said partners refusing to concur or pay any part thereof, and whereby Sir William's credit was so impaired, that none would either lend to him or buy from him because of his circumstances with the parliament. From what it premised, it being evident that towards the reimbursing Sir William Menzies of the £2,000 sterling advanced by him before the year 1703 more than the fund had afforded, he has not at any time nor any in manner of way received any part thereof except the £200 sterling owned and acknowledged by him in the account signed and given in to the parliament in 1704, and £1,900 Scots which he has got payment of out of the desperate dues stated in Colin Alison's account since that time.
And therefore, by the foresaid answers, after answering the earl of Crawford's petition, he concluded hoping his grace and the honourable estates would bring the affair to a conclusion and determine at worst that upon payment of the several sums already allocated upon that fund he might be exonerated and have recourse against partners and their representatives for relief as appropriate, or at least that the exoneration might be full and the decision between him and partners might be remitted to be summarily decided by the lords of session with a parliamentary power, and in order thereto that the petition presented by Sir William and lying in the clerk's hands, with his process against partners, might be read and considered and receive interlocutor thereon, according to justice as the said answers also in themselves purport.
And her majesty's high commissioner and the estates of parliament foresaid, having this day fully considered the foresaid petition or representation with the above-mentioned report of the commission of parliament thereupon, and the answers above-written thereto, and being therewith well and ripely advised, they absolved and hereby absolve Sir William Menzies and partners upon payment of the £5,000 sterling by equal portions at Martinmas and Candlemas next, under the penalty of £1,000 sterling for each of the said terms failing, reserving to him his relief against partners and others liable in payment as appropriate. Extract.