[1705/6/178]¹

Act in favour of [James Douglas], duke of Queensberry

Her majesty's high commissioner and the estates of parliament, having heard the petition of James, duke of Queensberry humbly showing to them that whereas in the years 1694 and 1696 he was necessitated to employ his private credit to borrow £3,000 sterling from the commissaries of the army for paying the troop of horse guards then under his command, the said troop, being then upon the English establishment and their pay not remitted from thence, his bonds were allowed to the commissaries in their accounts to the lords of treasury in 1699 upon his giving bond to their lordships for the said £3,000 sterling and £512 sterling for bygone interest, the petitioner's case was remitted by last sessions of parliament to the commission for public accounts. And his lawyers having made his defences, which are inserted in the report, he shall not trouble his grace and their lordships with repeating them, being well persuaded his grace and their lordships will find agreeable to the laws and practice of this nation to allow him compensation for what he shall be found liable in, since the government is and has been debtor to him of a long time in far more and considerable sums. What the petitioner begs leave further to represent is that, it being evident that the money he borrowed was not for his own private use, but for the service of the troop of guards, and it being well known that the pay of the said troop was not cleared for some years thereafter, and then only by debentures which could not be made effectual without great discount, and further the government being debtor to the petitioner for several years in far greater sums, it appears hard that he should be liable for any annualrents of the sum so borrowed and employed by him. Therefore, craving his grace and their lordships to consider that article of the report from the commission, which concerns the petitioner's bond of £3,512 sterling granted to the lords of treasury in July 1699, and to find that the money advanced to him by the commissaries of the army, which is the original cause of the said bond, not being for his private use but for the service of the troop of guards, and for preventing the disorders that might have happened upon their not being paid, that he ought not to be liable to any interest for the said sum, and find that the petitioner, being creditor to the public for greater sums than the said sum of £3,000 sterling advanced to him by the said commissaries, he ought to have allowance and compensation for the said sum of £3,000 sterling, he discharging the like sum out of the sum of £14,923 12s 2d sterling yet resting to him, and to ordain his bond to be given up and declare him quit and free thereof forever upon his granting a discharge in the terms foresaid, as the said petition bears. And her majesty's said commissioner and the estates of parliament, having likewise heard that part of the report of the said commission of parliament appointed for stating and examining the public accounts which relate to the said affair, bearing that the duke of Queensberry's bond to the treasury, being remitted to the commission and to hear his defences, they had accordingly heard the duke of Queensberry's lawyers on the said defences as to the sums of money borrowed by him from the treasury which, containing several specialities, had straitened them in determining anything against him. Therefore, they presumed to lay his case before the parliament with an account of the most material things that were pleaded for him, that the honourable house might, with the greater ease, give their decision in the matter. The duke of Queensberry in 1698 gave bond to the treasury for £3,512 sterling, made up of the sums borrowed at two several times from Sir Alexander Bruce and Sir George Hamilton, general receivers of the funds of cess and excise, payable to the lords of the treasury, or their successors in office, at Candlemas [2 February] 1699. The duke's lawyers acknowledged the debt but craved compensation in respect that a far greater sum, instantly verified and liquidated, is owing to him by the government, which defence of compensation they pleaded upon the following grounds. Firstly, that compensation in law is equivalent to payment and extinguishes the debt by this law taking place, not only against private subjects, but likewise against the prince, and that both by the civil law and the municipal laws of this kingdom, as by the 141st act of the twelfth parliament, James VI, and likewise, as it was decided in the case of the Lord Maxwell against the king, as is observed by Durie, 19 December 1632. Secondly, that the 14th act of the parliament of 1661 narrates the excise to be granted towards the defraying of the necessary charges of the government according to his majesty's royal pleasure; that the 18th act of the parliament of 1681 continues the same five years after King Charles's death unchanged; that the 2nd act of parliament of 1685 annexes the excise to the crown and bears expressly to be designed for supporting the interest thereof; and that the 28th act of parliament of 1695 transfers the payment of excise from the malt to the liquor, but continues the annexation to the crown and the ends and uses for which the former acts narrated it to have been granted. Thirdly, that the estates of parliament thought fit last year to acquiesce in very great allowances that had been given to [William Douglas], duke of Hamilton, [John Hay], marquis of Tweeddale and [George Melville], earl of Melville, commissioners to the parliament, out of the funds of cess and excise, upon which three grounds the lawyers craved that compensation might be allowed since her majesty had the undoubted disposal of the excise at her pleasure, there having been never as yet any appropriation thereof by a law for the use of the army, and that though the duke's bond does not bear expressly to be borrowed out of the excise yet, since his late majesty King William could have allowed compensation to the duke by virtue of the power he had to dispose of any sum not exceeding the tack duty of the annexed excise, therefore they concluded that her present majesty Queen Anne and the estates of parliament ought, in justice, to allow the same, as the said report also bears. And her majesty's high commissioner and the said estates of parliament, having this day fully considered the foresaid petition with the foresaid report of the commission, and being therewith well and ripely advised, they found and hereby find that there can be no interest due by the foresaid bond for the reason above-mentioned and expressed in the said petition, and that the petitioner ought to have compensation of the sum of £3,000 sterling therein contained upon his discharging the like sum out of the above-specified sum of £14,923 12s 2d sterling due to the petitioner, and ordained and hereby ordain the said bond to be retired and delivered up to the petitioner, and declared and hereby declare him quit and free thereof upon his granting discharge of the said sum of £3,000, in manner represented in the said petition. Extract.

[1705/6/179]²

Article of the report of the commission relating to the bond of £853 2s sterling granted by [Archibald Campbell], late duke of Argyll to the lords of treasury, read and an act thereon made as follows.

Act in favour of the duke of Argyll

Her majesty's high commissioner and the estates of parliament, having considered the report of the commission of parliament appointed for stating and examining the public accounts relating to the bond granted by the late duke of Argyll to the lords of treasury, bearing that they needed not resume to the parliament the case of the late duke of Argyll and the defences proposed by his lawyers upon his bond for £800 sterling, these being the same with those proposed for the duke of Queensberry, only they must represent to his grace and their lordships one speciality in the duke of Argyll's bond, which is his oblidgement either to pay the said £800 sterling to the lords of the treasury and their successors in the office or to procure a letter from King William for allowing the same to him, which letter the commission did find his grace procured from her majesty Queen Anne in 1703. And having also considered the following letter directed by her majesty to the lords of treasury and the bond itself, which is in these terms: that if between then and 15 September 1696 and 1 April next thereafter, his grace did not procure and deliver to the said lords his majesty's letter or warrant for delivering up to his grace the said bond without repayment of the said sum, then he obliged himself, his heirs and successors, to pay and refund the same. And his grace, having in February 1703 obtained her majesty's letter authorising and requiring the said lords to state the account of arrears due to his grace of pay and clothing, and to deliver up to the said duke the said bond of £853 2s sterling, and to take his receipt as so much paid to him on account of his said arrears of pay and clothing, and her majesty's high commissioner and the said estates, being well advised with the foresaid report, letter and bond, they recommended and hereby recommend to the lords of treasury to give up and discharge the said bond upon their getting a valid discharge of the sum of £853 2s sterling as a part of the arrears due to the deceased duke of Argyll.

[1705/6/180]³

The article of the report of the commission relating to the hearth-money collected by the deceased [James Melville], laird of Cassingray, read and considered, and an act thereon made as follows.

Act in favour of the heirs and cautioners of the deceased [James Melville], laird of Cassingray, collector of the hearth-money

Her majesty's high commissioner and the estates of parliament, having heard that article of the report of the commission of parliament appointed for stating and examining the public accounts relating to the hearth-money collected by the deceased laird of Cassingray, bearing that, by the minutes of parliament dated 16 August 1704, it being remitted to the commission to inquire into the balance of the hearth-money, they found that when the deceased laird of Cassingray made up his accounts with the lords of the treasury he had a balance in his hands extending to £7,368 Scots. But since that time, they found that he and [David Leslie/Melville], earl of Leven paid the same according to the treasury's orders for the ends and uses to which the hearth-money was granted by the parliament, except as to the sum of £432 Scots, which they had allowed [John Hamilton], lord Belhaven to retain in his hands in part payment of his own arrears, so that this balance has been fully accounted for and the documents thereof are lying before his grace and their lordships, as the said report bears. And her majesty's high commissioner and the said estates of parliament, having fully considered the said article of the foresaid report, and being therewith well and ripely advised, they approved and hereby approve thereof and recommended and hereby recommend to the lords of treasury who are hereby authorised to discharge the heirs of the said Cassingray and to give up the bond wherein he and his cautioner stand bound for the said hearth-money. Extract.

[1705/6/181]⁴

Article of the report of the commission relating to Sir Alexander Bruce of Broomhall and partners, their advances to the army upon the accounts mentioned in the report, and the petition for the said Sir Alexander Bruce, read, and the parliament, having considered the said report with the petition, they find the petitioner creditor to the public in the sums and manner as is contained in the deliverance of parliament upon the said petition, which is as follows.

Act in favour of Sir Alexander Bruce of Broomhall

Her majesty's high commissioner and the estates of parliament, having heard that article of the report of the commission of parliament appointed for stating and examining the public accounts relating to Sir Alexander Bruce of Broomhall and partners, their advances to the army upon the account mentioned in the said report, which bears that by the minutes of parliament dated 23 August 1704, it being remitted to the said commission to consider Sir Alexander Bruce of Broomhall's petition craving payment of his disbursements for the army, they found that Sir Alexander Bruce and his partners did enter into a contract with the lords of the treasury wherein they were not obliged to forage any troops but such as were upon the Scots establishment, yet notwithstanding thereof they foraged the troop of horse guards and [Thomas Livingston], lord Teviot's regiment of dragoons, both being upon the English establishment at that time, which Sir Alexander claims he did at the desire of the lords of the treasury, though he has not instructed the same by any written order. They found also that whereas their lordships of the parliament in the last session thereof were pleased to acquiesce in considerable allowances given to other commissaries as poundage for extraneous precepts paid out of the cess and excise otherwise than for the use of the army, yet Sir Alexander never got any allowance for these extraneous precepts notwithstanding, as he claims, he had no other salary or advantage than the poundage he expected out of the cess and excise. He claims, likewise, some consideration upon the account of his foraging the troop of guards at that time attending the parliament which was, likewise, granted to other commissaries and allowed by the parliament the last session thereof, and upon the whole the commission observed that though Sir Alexander might possibly have been at considerable loss by reason of his exceeding the terms of his contract with the lords of the treasury, yet it depends upon the parliament to judge whether or not they will favour him with the same allowances that were granted to others, as the said report bears. And having also heard the petition of the said Sir Alexander Bruce, [George Baillie of] Jerviswood and partners humbly showing to them that the last session of parliament did remit to the honourable commissioners for public accounts a petition presented by them touching certain disbursements of the petitioner's for the army, that in pursuance of that remit the commissioners have proceeded to inquire into the state of that affairs and to examine what these disbursements did amount to, with grounds whereupon the same are founded and the proofs and evidences thereof, as appears by the minutes of their procedure in the same, that they have also framed and printed a short report relating to the same, therefore, humbly begging that his grace and their lordships would take the said affair into their consideration and, after having examined the relevancy and truth of the petitioner's pretensions as has been made appear before the said honourable commissioners, they would, in their justice, take some such course as the petitioner may be paid of the same, as the petition foresaid also bears. And her majesty's said commissioner and the said estates of parliament, having fully considered the foresaid report of the commission of parliament anent Sir Alexander Bruce's claims with the foresaid petition relative thereto, they found and hereby find that there is due and resting to the said Sir Alexander the sum of £536 sterling for his foraging the troop of guards with hard meat during the parliament of 1695. As also, modified and hereby modify the sum of £1,000 sterling to be paid to the said Sir Alexander Bruce as due to him for his losses in foraging the troop of guards and regiment of dragoons commanded by the viscount of Teviot, and for the poundage of extraneous precepts in respect the said Sir Alexander had no poundage for the said troops upon English pay, extending the said sums for which the said Sir Alexander is found creditor to the sum of £1,536 sterling and that in satisfaction of Sir Alexander's whole claims above-mentioned expressed in the said report and petition.