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Anent the petition given in to their majesties' commissioner and the estates of parliament by James, earl of Morton, mentioning that the isles of Orkney and Shetland, having fallen in the king's hands by the forfeiture of [Patrick Stewart], earl of Orkney, they were, by a private unprinted act, annexed to the crown in the year 1612.† But, in the year 1633 it pleased the king, for debts due to and services done by the then earl of Morton, to set a tack of the said islands to the said earl during his life, and to the effect the foresaid private act of annexation might not militate against his tack, it was expressly excepted in and from the king's general and solemn printed revocation made in parliament the said year 1633. After which the king, in the year 1643, having appointed account and reckoning to be made with the earl, entered into a contract of wadset with him, whereby for the sum of £30,000 sterling, then found due by his majesty, he made over to the earl the said isles under reversion of the said sum, and this wadset was ratified and confirmed by all the authority that the parliament of 1644 and 1645 could add to it. And though these parliaments were rescinded in the year 1661, yet it was done with a special and express reservation of such acts as concerned the rights of private persons. But in the year 1651, the English, having overrun the whole country, did likewise dispossess the earl of Morton until the year 1661, yet that the king being restored thought fit to restore the earl of Morton likewise to his foresaid right. But in respect the earl's debts were great, it was at that time advised to revoke the earl's gift, and that the king should grant a new gift of the said isles to [John Villiers], viscount of Grandison for the earl's behoof, and this new gift was ratified in parliament, with an express dissolution of those isles from the crown and a dispensation declaring that dissolution to be as effectual as if it had been made before the right granted to the viscount of Grandison, and rescinding all acts in the contrary. Whereby, it is evident that by this act and ratification, which was not an ordinary ratification in course, but an act of parliament expressly advised and voted, the earl of Morton had all the security for his foresaid right, that the king and parliament could give him. But the then earl of Morton, falling under some disadvantages, though he had both an unquestionable right and was in possession, yet there came a warrant from the king in the year 1668, ordering a reduction to be raised of his rights before the lords of session. And there there having been no compearance made at that time for the earl, the lords in February 1669 gave out their decreet reducing the same, upon such reasons as the then king's advocate was pleased to allege, and whereof the sum was that the disposition made by the king to the earl of the said isles was of the annexed property, and had not been made for good and seen causes first advised in parliament, nor after a dissolution, which ought to have preceded the same, and further that the disposition of the said isles was granted to be held blench, whereas the annexed property can only be made over to be held feu, and therefore the king had, likewise, revoked the same by his revocation made in the year 1662. To all which, if compearing, the earl had undoubtedly answered that his disposition in the year 1643 was for payment of debt due by the king to his predecessors, and also for a valid liferent tack then standing in the earl's person, which were causes most onerous. That, albeit the said causes were not first advised in parliament, and that there was no previous dissolution, nor was the disposition granted to be held feu but blench, yet the foresaid act of parliament of 1662, ratifying and dispensing expressly with all these formalities, did take off all ground of exception, in as much as, it is evident, that where the parliament advisedly and expressly dispenses, it is of the same weight and force as if the acts dispensed with, and which are in so far rescinded, had been punctually observed. Likewise, there is an express act of parliament, James VI, parliament fourteenth, chapter 243, that where ratifications and new dispositions are made with express and special dispensations of the said general laws, and by the advice of the estates to be specially mentioned therein, these ratifications and dispositions are not to be quarrelled, but are validly therefrom excepted, which is exactly the earl of Morton's right. And as to the king's revocation, it reaches not the earl's right, because first revocations are understood to be of deeds, whereby the crown is harmed, whereas in the disposition made to the earl there was no harm. And secondly, the earl's right, having been ratified by the king, it comes directly under the exception in the revocation, namely of all rights ratified by his majesty, which answers are so undoubtedly good, and were so well foreseen by the king's advocate and officers at that time, that they were far from contenting themselves with the foresaid decreet. But to supply its visible insufficiency and weakness, they not only obtained the said decreet to be ratified in the parliament of 1669 that next ensued, but likewise annexed the said isles of new by a statutory act to the crown, making the terms of annexation more strict and binding than ever they had been, with this express design that the foresaid ratification should not fall under the act salvo, but should stand as a law and act of parliament to exclude the earl forever. But because they understood that in this case† there was a great stretch made, namely in excluding ratifications from the act salvo, and making a statutory act look back in a manner in the past, when both of its own nature and by an express act of parliament it ought only to look and bind forward concerning the future, therefore the king's officers, still judging the king to be insecure, thought fit to lay hold on the advantages of the earl of Morton's† straits and difficulties, to which they themselves had reduced him. And first, for the sum of £10,000 sterling to have been paid to him, they make him subscribe and consign in the clerks of the exchequer's hands a renunciation of his right, and then when, after the earl's death, it was found that this renunciation was never delivered, there was an express instruction procured and executed, when [William Douglas], duke of Queensberry was treasurer, discharging the payment of so much as the annualrent of £6,000 sterling remaining unpaid of the £10,000 in the exchequer's hands to his father and him, though expressly destined for the earl of Morton's aliment, and the only means of his subsistence, until he should subscribe and deliver a new renunciation, which was accordingly done. By all which it is evident that his right to the isles of Orkney and Shetland is still in itself good and valid: for seeing the foresaid decreet reductive was in law groundless, and that the act of parliament ratifying and statuting as above was extraordinary, and that any renunciation he had granted was extorted from him by a most visible and forcible concussion,† by the Claim of Right he ought to be restored. It follows necessarily that the right and disposition of wadset made to him, in so far as the sum therein contained remains resting owing unpaid, is a sufficient right, to which he ought to be returned, and seeing that it is evident that, albeit he could reduce the foresaid decreet of the lords of session with the foresaid renunciation, upon the unanswerable grounds above-mentioned, yet there is no remedy for him so long as the foresaid act of parliament stands in any way unrepealed. He is, therefore, indispensably engaged to† implore the justice of that honourable court, that he might at least have access to plead his right as all other of their majesties' good subjects are allowed to do, and not excluded by a singular act of parliament, which it's hoped the justice and equity of that honourable court will never suffer to remain as a bar upon any, much less hinder him to recover his just right to an estate which has been possessed now more than 60 years as the proper patrimony of the earl of Morton, and without which that noble and ancient family, that he now represents, must necessarily go to ruin. Therefore, humbly craving his grace and the honourable estates of parliament to consider the circumstances and to review and rescind the foresaid act of parliament, in so far as it debars him from prosecuting his said just right, and to declare that he may prosecute the same notwithstanding thereof. And further, if that honourable court thought fit to grant warrant to cite their majesties' officers of state, and all other persons needful, against such a day as should be assigned for the effect foresaid, and to hear and see the foresaid renunciation and decreet of reduction rescinded and reduced for the reasons above alleged, and to be alleged, and to restore him against the same, or if his majesty's high commissioner should not be free to grant his said petition, that it might please the honourable estates, at least, to recommend him to their majesties, that he might have the foresaid act of parliament taken out of his way, seeing all that he could crave was that he might be once heard and might have leave with his majesty's favour (which he most humbly begged) to prosecute his just right, whereof he was deprived without a hearing, notwithstanding of the foresaid act of parliament, which, as well as the foresaid decreet of the lords, was made against the earl of Morton, the party not compearing, and which was a petition was never denied to any, as the said petition bears.
Which petition, being upon 12 June last read in the presence of their majesties' commissioner and estates of parliament, they ordained their majesties' advocate to see the same, and to answer thereto tomorrow thereafter. And accordingly, their majesties' advocate gave in the following answers: namely, the earl of Morton in his petition makes a long deduction of his predecessor's right to the isles of Orkney and Shetland, and then complains that his right was unjustly reduced by the lords of session in the year 1669, which he alleges could not be ratified by the act of parliament that thereupon ensued. And further, he affirms that in this act of parliament there was a great stretch made in excluding this ratification from the act salvo, and making a statutory act look back concerning the past, and on this ground he further quarrels the after agreement that was made by the officers of state with the earl himself, obliging him to renounce his right for the sum of £10,000 sterling. And, albeit both his father and he himself did sign and deliver this renunciation, and do actually enjoy and intromit with the rents of the foresaid sum, in so far as resting unpaid, yet he has the confidence to affirm that this renunciation was extorted from him by concussion and therefore craves that the foresaid act of parliament may be reviewed and he allowed to reduce the foresaid decreet given by the lords of session, or at least that the parliament would recommend to their majesties the abrogating of the foresaid act, and the granting of him leave to quarrel the foresaid decreet. To all which it was answered, firstly, that the decreet of the lords was most just reducing the earl's right upon this unanswerable ground: namely, that it was a disposition of the annexed property made by the king without good and seen causes first advised in parliament, and without a previous dissolution, as the law in the case of the annexed property does expressly require. And whereas it is now pretended that the foresaid previous trial and dissolution may be supplied, and was supplied in the earl's case by an after act of parliament ratifying his right, and expressly dispensing with the foresaid laws, it is answered, firstly, that it is well known how ratifications pass in course, and that there is nothing more easy than to obtain a ratification with the foresaid dispensation, when yet, it is certain, that if the matter had been first tried and a dissolution craved in parliament, the parliament had proceeded far otherwise. And secondly, that as there is a vast and visible difference between a prior act and a posterior dispensation, so the act of parliament King James VI, chapter forty three, cited by the earl, makes nothing for him, because it was taken off by posterior annexations, and it's well known to have been long since in desuetude, but secondly the act of parliament of 1669 did not only ratify the foresaid decreet of the lords, but also annexes of new, and that without any such stretch as the earl alleges, there being nothing so reasonable than that a ratification should look backward to the decreet ratified, and nothing more certain than that statutory acts fall not under the act salvo, and therefore the foresaid act, both ratifying what was past, and annexing for the future, cannot be quarrelled on these grounds. But thirdly, the earl's own posterior renunciation puts this matter beyond controversy, and to allege that the same was extorted by concussion is to render void all agreements that any subject can make with the king or his officers. And if, after a decreet obtained and ratified in parliament, a party freely transacting and receiving the money agreed to be given shall be heard to quarrel this transaction upon concussion, because forsooth the transaction was made with the king, and that the party could not want the money, what agreement or transaction made by a subject with the king's officers of state can ever stand in force. But secondly, the earl to this day uplifts the rent of the money transacted for, which in law is the clearest homologation and takes off all pretences of a forgoing concussion, so that the earl in this case stands excluded, not only by the foresaid decreet ratified in parliament, and a new statute act of annexation, but also by a clear transaction both freely and profitably made, and thereafter to this day constantly homologated which manifestly takes off the earl's whole pretences. In respect whereof, their majesties' advocate, as also the lords commissioners of the treasury, humbly craved that the petition might be rejected, as the same answers bear.
And which petition and answers given in by their majesties' advocate thereto, with the petitioner's early and zealous appearance for and dutiful and constant adherence to their majesties' interest, being this day considered by their majesties' commissioner and estates of parliament, they did and hereby do humbly recommend the petitioner's case to their majesties to the effect that their majesties considering what hardships or stretches the petitioner and his predecessors have suffered by the above-mentioned decreet and act of parliament, may allow the petitioner, notwithstanding thereof, to prosecute a reduction of the foresaid decreet. And in the meantime, do further recommend the petitioner to their majesties' care, to be provided for, as they in their royal wisdom and bounty shall think fit, until the foresaid cause be of new tried and discussed.