[1703/5/169]¹

Legislation

Act in favour of Duncan Forbes of Culloden

Her majesty's high commissioner and the estates of parliament, having heard the petition of John [MacKenzie], master of Tarbat, Roderick MacKenzie of Applecross and Hugh Munro of Teaninich, for themselves and the other heritors of Inverness and Ross shires, humbly showing to them that where Duncan Forbes of Culloden, upon a petition to the parliament in 1690 representing that his lands of Ferintosh had been about that time laid waste, did procure an act of parliament farming to him the excise of the said lands for the sum of 400 merks yearly, and reducing the valuation thereof from £2,000 to £1,200 Scots, and a great part of this abatement laid upon the shire of Inverness and added to the quota of their cess, the petitioners did not there quarrel the said representation, albeit it was sufficiently known that no part of these lands was laid waste for a year, and the greatest abatement given to the tenants did not exceed a half year's rent. But certainly it cannot but be noticed that, though the loss had been far greater, it is long since abundantly repaid, and it can never be thought that the parliament intended the foresaid grant to be perpetual, it being so manifestly prejudicial both to all the country about and more especially to her majesty's interest, in as much as first under the colour of the said 400 merks yearly, Culloden, upon a very reasonable computation, may have brewed within these lands 2,000 bolls of malt for aquavitae yearly, which, at two merks per boll, as others do pay, amounts to 4,000 merks yearly, whereas at Culloden's rate of 400 merks he does not really pay three pence per boll, so that, in a manner, he brews excise free and thereby undersells and ruins his neighbours as effectually as if he had a monopoly, which all laws condemn. And further her majesty is obviously prejudiced in 3,600 merks yearly, besides that Culloden may augment his brewing and make the said prejudice both to queen and country far greater. And as to the valuation of the said lands at £2,000 Scots, it is really as easy as any valuation of lands in either of these shires though it was restricted to £1,200 without any probation, which ought the rather to be redressed because the act of parliament of 1670 for revaluation of the shire of Nairn does plainly afford the proper remedy by the commissioners of the shire. Besides that, the shire of Inverness ought not to be burdened with the foresaid abatement. Therefore, craving his grace and their lordships, in consideration of the circumstances, to declare the foresaid act in Culloden's favour expired and extinct as to the foresaid tack of his excise, and to ordain the foresaid undervaluation to be rectified, and the just proportions of the shires to be adjusted by such commissioners as his grace and their lordships should think fit for that effect, as the said petition bears.

Upon reading whereof, on 24 June last, his grace and the estates, having ordained the above Duncan Forbes to answer it the second day wherein the parliament should sit the then next week, the said Duncan, conforming to the foresaid interlocutor, gave in the following answers. Mentioning that his lands of Ferintosh, being laid waste in October 1689 by a body of seven or eight hundred men sent there by Buchan and Cannon, and he and his tenants being prejudiced thereby in upwards of £36,000 Scots, as was made apparent to the parliament by whose order full probation thereupon was taken, the estates did by their act in July 1690 ease him of an exorbitant valuation, which he had long complained of, upon condition he should pay cess from that date; and also for encouragement to his tenants to come back and brew and pay excise from that Lammas [1 August] forward, the king and parliament did grant a perpetual tack of their excise for the payment of 400 merks yearly, at which rate they had tacks formerly between 1670 and 1680, year of God, as was proven in the presence of a committee of parliament before the act passed, though it is confessed that immediately before the revolution they were more rigorously exacted upon this justice done to Culloden in his valuation. And this small ease to his tenants in their excise is all the reparation he or they have of their £36,000 loss for their affection to the government, yet it is complained upon by the master of Tarbat, on behalf of the shires of Inverness and Ross, alleging first that Culloden's valuation wrongs the shire of Inverness etc. Secondly, that his tack of excise wrongs the queen's revenue in 3,600 merks per annum. Thirdly, that his tack of excise wrongs his neighbours in so far as he can undersell them and monopolize the brewing trade etc. Fourthly, that all his loss was not above half a year's rent etc. Fifthly, although it were as much as he called it, yet he is paid because he had the benefit of 4,000 merks of excise yearly for twelve years bypast and, therefore, concludes that since his losses are repaired, his said tack of excise should be declared expired and extinct: to the first, anent the shire of Inverness its being wronged by Culloden's valuation, it is answered that it is the law of terce to the master of Tarbat and the shire of Ross, or any man in it who has no estate in the shire of Inverness, to inquire in that. If the commissioners of Inverness or Nairn shires say nothing upon the head, it is out of the road of any else whatsoever to quarrel it. Secondly, [Ludovic Grant], laird of Grant in 1690 did represent the shire of Inverness in parliament, and gave consent and approbation to Culloden's valuation in the terms of his act, and was witness to the unanimous satisfaction of all the commissioners of that shire in accepting of that small burden proposed by the act. But thirdly, if what is said were not sufficient, Culloden can say that none of the shire of Inverness bears a farthing of that burden but himself upon his other lands in the shire, referring the verity of what is said to the laird of Grant's own testimony. As to the second objection, that Culloden's tack of excise wrongs the queen's revenue 3,600 merks per annum etc., it is answered first that this is founded upon a false ground as if Culloden's tenants brewed 2,000 bolls yearly (which is very far from the truth) and reckoning all these bolls at two merks the boll, which is the rigour of the act of parliament, whereas it is known that, except it be in Edinburgh and some of the principal burghs, there is no such thing exacted as the rigour of the law. Indeed, in many country places the excise will not reach half merk upon the boll or else there would be no brewing. But letting this allegation pass, it is answered secondly, that the whole excise of the kingdom is and has been farmed above what it used to be, ever since the granting of Culloden's act, and that without diminution of one six pence on account of his said act, so that it is impossible the queen can be wronged in her revenue, unless the tacksmen and their cautioners break, which would also be nothing to the purpose in hand, and therefore this objection utterly falls. But as to the third anent Culloden's underselling etc. and monopolizing the trade from his neighbours by means of the vast benefit of this tack, it is answered that Culloden's tenants never undersold their neighbours (except in the cases after-mentioned) nor can they undersell them upon account of excise. But it is both possible and probable that in the two or three dear years, when he took but eight pounds for his boll and all the rest about him took the highest prices, such an occasion might occasion his tenants to undersell, but never upon account of excise which has been as cheap with them at other times as now notwithstanding of all the noise is made of it. And secondly, as to monopolizing it is no great symptom of a monopoly that at this hour his year's rent should lie upon hand without any to buy. But to answer this part of the objection distinctly, let the supposition be as the complaint would make it and that the lands of Ferintosh were entirely exempted from excise as well as Newmills or Fort William, or that they were liable in a great excise and that the king forgave it, either of which the king or queen can certainly do, nor is it the business of any living to quarrel it unless it can be said that the king or queen and estates have also given them a power to carry it from other places and brew and vend that too, as well as their own, excise free to the prejudice of their neighbours, which is the thing insinuated and most groundlessly, because Culloden denies that ever he took, or that his act of parliament gave him or his any such latitude but, on the contrary, understands the meaning of the act to be only for the excise of what grows upon his own lands (and less the parliament could not mean) to which he is and was always satisfied to be restricted, with certification that whatever grain shall be carried from any place into his lands (except it be to eat or sow) shall be liable to excise in addition to the tack duty, which secures to the world's end against all monopolies, or ever-increasing the trade by him or his to anybody's prejudice. And as to the fourth objection, that Culloden's loss in giving allowance to his tenants was not above half a year's rent, it is ill alleged, but esto he had allowed them nothing does that say that they lost nothing, and if they were losers to so great a value whatever ease there is in the excise they have it (as in reason they ought) and not Culloden, for there is none alive can say that ever he had a single half penny by it, which also answers the fifth objection, namely that though Culloden had as much loss as he alleges, yet he has had 4,000 merks per annum of benefit by the excise tack for thirteen years, which may pay all these losses and, therefore, his losses being paid his act of parliament ought to expire. It is answered the allegation is but a jest, because, as is already said, Culloden never had nor can have a half penny by that excise, the principal good of it being that it keeps his tenants free from the trouble and exactions of subtacksmen by whom they were formerly oppressed. And since this bit of ease to the poor people is all that he or they have to repair the £36,000 Scots of damages sustained for his affection and theirs to the government, it was hoped his grace and the estates of parliament would not deprive them of it, but would rather lay aside this invidious complaint and ratify what has been given to Culloden and his tenants upon so good grounds, as the said answers also bear.

And the petition above-written, being again upon the day and date of this act read together with the above-written answers thereto, in the presence of her majesty's high commissioner and the said estates of parliament, and they having fully considered the same, they have refused and hereby refuse to rescind the foresaid act of parliament, but have restricted and hereby restrict the privilege thereby granted to the growth of Culloden's own lands of Ferintosh only so as all other grains to be imported to the said lands to be brewed shall be liable to survey and excise as in any other lands in that country. Extract.