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The earls of Cromartie; their kindred, country, and correspondence (Volume 1) online

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that the proposition was not for a thing already past, — for then I had presented it
under the Chancellor or Clerk of Register's hand, as I did at that time all that
was then past in that session of Parliament, — nor as a matter voted by the Par-
liament, for that had implied a contradiction, since the thing desired was that
his Majesty should allow it to be voted, and spoke by me, the Commissioner's
envoy, it doth evidently exclude the first sense of a public desire ; and therefore
I humbly think that it was necessarily understood in the other, of a desire such
as a Commissioner, and none but he and the Council might know and inform his
Majesty thereof; and since in law regularitcr creditur nnntio deponentl de officio, I do
declare I understood the words so, and spoke them in that sense : therefore I did
not abuse the Parliament, since it was not for me to know or search into this the
Commissioner's desire, I might presume, and by presumption it appears, the
Parliament did desire it, since unanimously they voted to it ; and so at least did
not think it unfit, else their oath of Parliament should have withdrawn their
consent. This for the employment.

" The next is for the person employed, and my defence I found on the second
position. I was a messenger, sent by the King's Commissioner by a writ under
the Great Seal ; I was commanded to obey him ; in obedience to him, I had a
warrant for me of a ratihuhemus, so I dared not disobey ; obedience was my duty,
for I obeyed the King's Majesty in taking this employment of a messenger ; for
in law qui jubet per alium, juhet per se. Now, none will controvert but that a
messenger's duty is to deliver his message faithfully, to represent what my superior
commanded me ; but to represent if the advice or desire was good or bad, it was
not my duty ; to debate that was the proper consideration of him who sent me,
and of him to Avhom I was sent. Nay, further, had I mixed my own judgment
or knowledge with the trust, I had been indeed criminal ; had I offered my opinion
in contradiction to my command, I had been untrue ; had I refused to accept
employment till my superior had convinced me of the truth or fitness of the
matter, I had been disobedient and indiscreet. Did obedience depend on the
convictions of the judgment of the obeyer, authority were at a period. There
could be no secret ; every envoy behoved to have as much trust and knowledge
as his superior. If the Commissioner did more, or contrary to his trust, that was


neither my fault nor my trust ; his employment, by its nature, put that above my
doubts. ^Yhen the King's Majesty did trust a kingdom to him, it was my duty
to cast myself and my trust on his command, and to represent his words, to whose
care more than that was committed by my King. This implies an instance against
what, without good reason, may be urged by some, that I was a member of
Parliament, and so knew what the Parliament did. I answer, I was not a member
of Parliament in that employment; I had no other capacity in that affair but as
the Commissioner's messenger ; my charge was to carry his advice, his discourse,
to the King ; my words were his, proffered by him, at a distance, as by a letter or
so ; and had I attempted ought, under any other consideration of myself, then, as
such, I had been both unjust and foolish. The proof of this defence is not only
notour, but fully asserted for me in his Majesty's royal letter, where he says I
was sent by his Commissioner, and had credit from him ; so whatever abuse hath
been imposed upon his Majesty, or done to his Parliament, is neither by me nor
of me.

" And for a subsidiary defence : Since the Parliament is so dear to his Majesty
for their many good acts and services, and that I have the honour not only to be
a member of it, but not the last in testifying my zeal and affection to my Prince's
service ; and since, in all these good services, I will not say 'pars magna (that were
exorbitant vanity), but jjars saltern fui, wherein I needed not attest the Parliament,
they have prevented my desire, and in a public letter testified it to his Majesty
already ; so I humbly hope one fault shall be covered with these endeavours.
For albeit good and ill are not to be confounded, yet with a Prince, whose
royal clemency hath made him famous both over and above all the world, I hope
that grace, whereof many perverse enemies have shared abundantly, shall not be
grudged to an erring, penitent, but loyal servant. My actions cannot but have
faults ; but that I committed any which law can interpret either of malice or
intention, I positively deny : but whatever become of me I resolve to follow and
practise my principle, which is to obey his Majesty's sacred commands, to submit
to his will and acquiesce under his censure ; and I pray God grant him a long and
happy reign. '^

The Parliament transmitted the deposition of Lord Tarbat and the others

^ Memoirs of the Affairs of Scotland, by the speech, holograi>h of Lord Tarbat, in the
Sir George Mackenzie of Rosehaugh, ut supra, Cromartie Charter-chest.
I-]). 124-128. Collated with a MS. copy of

1714.] REMOVAL FROM THE BENCH, 1664. xcvii

to the King, with a letter in the most obsequious terms, promising to follow
out his Majesty's washes in reference to the Act of Exclusion by Billeting.
The letter is printed in the Acts of the Parliament.^

In self- justification, Lord Tarbat founded upon the Instructions which he
had received from the Commissioner Middleton on the billeting. In can-
vassing his conduct, some thought that Lord Tarbat should not have produced
these Instructions, as, while they vindicated Lord Tarbat, they implicated
Middleton. But Middleton himself specially authorised Lord Tarbat to found
upon the Instructions, as appears from his letter to him in the Correspondence.-

But the letter did not save Lord Tarbat. He was deprived of his seat on

the bench on the 16th of February 1664, in terms of a letter from the King,

dated on the 9th of that month. The King's letter and the proceedings of the

Lords are thus recorded in the Books of Sederunt : —

16 Februarii 1664.
The which day the Lord Chancellour produced, in presence of the haill lordis,
an letter from his Majestie, wherof the tenner followis : For our right trustie and
weilbelo wed cousin and counsellour, to our right trusty and weilbe[lo]wed coun-
sellouris, and to our trustie and weilbelowed, the Erie of Glencarn, our chancellour.
Sir John Gilmour, knight, president of our Colleg of Justice, and to the remanent
senatouris therof, Charles E,. : Right trustie and weilbelowed cousin and coun-
sellour, right trustie and weilbelowed counsellouris, and trustie and weilbelowed,
we greit yow weill. Wheras our parliament in ther last session did, efter examina-
tion of the contryvance and careying on of the bussines of billeting, transmit to
ws the originall depositions of these who wer examined concerning that wholl
mater, subscryved with the deponentis hands, to the end we might declair our
further pleasour : We, calling to mynd how that both we and our parliament wer
abused in that affair, and weill remembring what wes the cariage of Sir George
M'^Kenzie of Tarbet therin, and having considerit his depositiones and confes-
sions vnder his awin hand, have thoght fit to lay him asyde from these publict

' Vol. vii. p. 460. have l)een altered from a 3, which is clearly-

- Letter, vol. i. p. IS. The date on the tlae true date,
original is June 16, 1668 ; but the 8 seems to


ti'ustis he did enjoy in that our kingdom. Therfor we requyre yow to declare
his place in our Colleg of Justice to be void, which we sail spedilie supply. And
so we bid yow fairwell. Given at our Court at Whythall, the nynth day of
Februarii 1664, and of our rigne the 16th yeir. By his Majestie's comand. Sic
subscribitur Lauderdaill.

"Which letter being red in presence of the haill lordis, they ordained the sam
to be recordit in the bookis of Sederunt ; and, conform to the comand therof,
declaired the place of the said lord Tarbet in the Session to be vaicand.^

After the inquiry by the Committee, Parliament, on 9th September 1663,
repealed the two Acts passed on 9tli September 1662, the one for excepting
persons from public trust, and the other for voting the same by billets.^

After the formal repeal of the Acts, and the depriving of Lord Tarbat of
his seat on the Bench, Lauderdale resolved on affronting Lord Tarbat in plain
Parliament. As a preliminary to tliis, Lauderdale threatened to produce
several letters which were written to him by Lord Tarbat while he was pro-
ceeding with the billeting against Lauderdale — in Mdiich letters, it was said.
Lord Tarbat professed great kindness for Lauderdale.

The Commissioner, Eothes, as the friend of Lord Tarbat, repeated this
threat to him ; and Lord Tarbat threatened in return, for Lord Lauderdale's
kindness, as he called it, that he would produce in Parliament the letters
which Lauderdale addressed to the Parliament of Scotland when he was
President of the Committee of both Kingdoms, in the year 1647, as these
letters persuaded them to deliver up the King, with many severe reflections
upon the King's person. This had the desired effect of counteracting the
threat of Lauderdale to expose Lord Tarbat, as his Lordship in turn appeared
to be able to expose Lauderdale more effectually.

At a personal encounter these two antagonists were very well matched ;
but the practical victory remained with Lauderdale, as he retained his office

' Books of Seflerunt, vol. vi. p. 131. - The Acts of the Parliaments, vol. vii. p. 471, No. 30.

of Secretary, and really ruled the King for many years. Lord Tarbat, bcinij
attached to the cause of the Earl of Middleton, shared the misfortune of his
fall. Besides being deprived of his seat as a Lord of Session, he was kept
out of all official employment for many years.

Shortly before he was deprived of his seat on the Bench, Lord Tarbat was
required by the Lords to appear and take the Declaration against the Cove-
nant. The following letter from him, and the relative proceedings, are thus
recorded in the Books of Sederunt : —

10'"^ Februarii 1664.

The sam day the lord chancellor exhibeit in presence of the hoill lordis an
letter fra the lord Tarbet, in ansuer to an letter sent to him be the lordis of
Session (of the sam tenour with the letter recordit vpon the 8th Januarii last,
sent to the lord Arnistoun^): which, being red, the saidis lordis ordanit to be
ingrost and recordit in the bookis of Sederunt. Wherof the tennour followis :
Foe the right honorable the Erie of Glencarn, lord chancellour of the kingdom of
Scotland, 30 Januarii 1664. Right honorable, your lordships of the fyft, T have
receaued this last of January, wherby his maiestie's pleasour is signified for m}'
appeirance at Edinburgh, in ordor to the taking or refusing of the declaration
against the Covenant. The shortnes of tyme makis my obedience impossible,
albeit I had no other impedient, bot besydis that, the present condition of my
health will not allow me, without manifest danger of my health, to attempt a
jurney. My lord, I never ballanced my bodie nor estat with my dewtie of
obedience to my prince's command, nor wold I now, if the exigent could not
admit of this excuse. F'or, my lord, I have alredie subscryved to that declaratione
in parliament, and my opinion for that declaratione wes almost alsweill knowne
as my self; so that your lordship, I know, wilbe just to me by notifieing, if it be

^ 5tli January 1664. — Letter from his Ma- Sth January 1664. — The letter sent to James
jesty recorded, requiring the Lords of Session Dundas, Lord Arniston, requires him either
who had absented themselves, to give in their to sign the Declaration concerning the Cove-
subscription to the Declaration against the nant, or have his place declared void. Lord
Covenant, and to be informed of their obedience Arniston states in reply that he had sent
or refusal. The Lords thereupon written to in his demission some weeks ago, and that
are, Arniston, Stair, Bedlay, Tarbat. The therefore he was incapacitated from obeying
last is required to come in 2d February. their Lordships.


requisit, the trew caus of my absens, and my alredie performance of dewtie in
ordour to that declaratione, which I salbe willing to reiterat als oft as authoritie
calls me to it, in what station quhatsoevir. And trulie, my lord, my necessitat
absence from this occasion from my king and counti-ey's service, and your lordship's
noble and good company, is of werie much truble to, my lords, your most
humble servant, George M'^Kenzie.^

To a young man of so much promise as a rising statesman as Lord
Tarhat, with powers equal perhaps to those of his successful rival, his entire
exclusion from all public employment must have been very galling. He
continued to represent his native county of Ross in the Parliament of Scot-
land, and he took an active part in the general business of the Parliament,
being frequently nominated a member of important committees.

Although out of office, Lord Tarbat was not inactive in any measure
which tended to the public good, and particularly that of the Highlands. In
a letter to the Earl of Piothes, the Commissioner, dated lOtli October 1665,
Lord Tarbat, in their " old familiarity," offers his advice as to the best mode
of suppressing the Highland robberies and insurrections. He proposed that
the Earls of Murray and Seaforth, the two Sheriffs of the largest Highland
counties, should receive a commission of lieutenancy of all the broken High-
lands to hold courts, and to hold chiefs and landlords responsible for all
under them."^

One of the principal correspondents of Lord Tarbat was James Sharp,
Archbishop of St. Andrews. After ten years of exclusion from every
office, the Archbishop appears to have been the first to pave the way for
the restoration of Lord Tarbat. In a letter from the Archbishop, dated
London, November 21, 1674, in which, after alluding to the great loss
which Lord Tarbat sustained in the public charges, he refers to a
" Conference with my Lady Dutchess of Lawderdale, at Ham, when I might,

1 Books of Sederunt, vol. vi. p. 129. " Contemporary copy letter at Tarbat House.


without impertinency or seeming design, make tryall how her Grace might be
disposed towards yow. After some discourse about your sone-in-law, Clack-
mannan,^ and then of yourself, I sayed that to her which found such acceptance,
that her Grace gave me commission, at my return to Scotland, which then I
expected would have been soon after, to give [assurjance of her inclinations to
doe you all the good offices in her power ; and Avhen she should see yow and
Clackmannan, who, she thinks, has of late carryed somewhat strangely to her, yow
should find her endeavours friendly. This is the summe of what passed then ;
the circumstances and particulars I cannot in this way signifye to yow. Twice
since that tyme I had occasion to mention yow to my Lord Duke of Lawderdale,
and spoke of the apprehensions you might be under, that through mistakes inter-
tained of yow, prejudice might be done by confyning and sending yow to the
North ; to which he sayed he knew no cause, and nether he nor any else heir
meant yow hurt ; and, by any collection I can make, I shall say freely, I could
wish, whyl I were here, your conveniency could have allowed your making a
journey for seeing your Prince and your freinds of this Church, and that yoAV
knew my reasons for such a wish, when probably yow might find matters in a
more hopefull tendency to your satisfaction then when yow were heir some years
agone, and perceive that some now see it ther interest to own the Church, who
formerly did not. Yow may remember that I have professed to yow, as I have
done to other freinds, when I had occasion to speak of that head, that the measure
of my freindship and service, if it can signify to any man, is according as I find
them afi'ected and concerned for the Church as now constituted, and may say I
have done every man right who has been so, and shall doe for the future, however
persons may change towards me. I doe not mistake if I beleeve I know on what
side you are to be found, and desire yow may beleeve that, wherin I can be of
use to yourself and your interest, I will imploy my best endeavours in much
sincerity." "^

^ Lady Margaret Mackenzie, the eldest daughter of Sir George Mackenzie, married Sir David
Bruce of Clackmannan, without issue. - Letter, vol. i. pp. 19, 20.





HESE conferences between the Archbishop of St. Andrews and the Duke
and Duchess of Lauderdale appear to have paved the way for the restora-
tion of Sir George ISIackenzie to public life, although it was not until the
lapse of other four years that an opportunity occurred of appointing
him to office. On the 16th of October 1678, he was appointed to the higli
office of Lord Justice- General of Scotland ; and on the following day, King
Charles the Second made a grant to him of a pension of £200.^ A letter
from King Charles the Second, dated on the 27th of the previous month,
restoring him to the King's favour, was recorded in the Books of Sederunt
on the 12th of November 1678 ; and is as follows : —

Duodecimo Novembris 1678.
His Maiestie's letter vuderwritten, direct to the saids lords, being reade, was
ordained to be recorded in the Bookes of Sederunt. Of which letter the tenor
followes : —

Charles R.
Right trusty and welbeloved Cousin and Councellor, Right trusty and wel-
beloued Cousins and Councellors, Right trusty and welbeloved Councellors,
and trusty and welbeloved, Wee greet you well. Whereas by ane Act of the
third sessioun of our first Parliament, intituled. An Ad Rescinding tuo Ads past
in the last Session of Parliament, our Estates their conveened did testify their
dutifull and just resentment of the injury done unto us and our faithfull minister
by the insolent endeavours of some then intrusted by us, in that extravagant

' Original Grant, Bundle 3 N, Xo. 1, of Cromartie Papers.

novation of Billeting : By which Act it is lykewayes referred to us what
should be determined concerning the principall actors in that abuse : In pursu-
ance wherof, Wee, remembring that Sir Georg M'^Keinzie of Tarbett, Knight-
Barronett, Avas not only accessory thereto, but that he had been singularly
employed therin, Wee did, by our letter dated the day of

1663, remove him from some employments he had from us. Bot
now, considering how befor that, and even in the worst of times, he had on all
occasions evidenced ane intire loyalty and fidelity to us, and that since, he hath
not only shewed a dutifull acquiescence to our Avill, and his greife for the wronge
he had committed in that affaire, but also that he hath laid hold on all fitt oppor-
tunities to demonstrate his constant duty and loyalty to us, and affectioun to our
Minister whom he had injured ; and upon narrower search in his deportment
finding that, in the fault committed by him, he was not only induced, bot com-
manded to it by our then commissioner, and severalls of our principall officers, as
the Instructions given unto him, and other authentick papers, have evidently
made appear unto us. Wherefor wee think it fitt not only to pardon whatever
the said Sir Georg M'^Keinzie of Tarbett hath done in all that affair, bot also to
excuse him, and to receave him again into our royal favour. And it is our express
will and pleasure that what he hath done therin be not objected against him,
directlie nor indirectly, in judgement, or without the same, heirefter. And in
respect that our forementioned letter is registrated in your Book of Sederunt, it
is our Royal pleasure that this also be insert and recorded therin, and extracts
therof given as a memoriall of this our clemencie and favour unto him. And
wee doe heerby declare this to be our furder and full determinatione as to him,
according to the reference made unto us by the forementioned act of Parliament,
and so wee bid you heartily fareweel. Given at our Court at Whitehall, the
27th day of September 1678, and of our reigne the 30th year.

By his Maiestie's command.

Sic subscribitur, Lauderdale.^

The office of Great Justiciar, or Justice- General, to which Lord Tarbat
was now appointed, was placed next to that of the Lord Chancellor. Origin-
ally the Justice Court was the only Sovereign Court of the kingdom. Even
after the erection of the Court of Session, much civil business came before the

1 Books of Sederunt, vol. vii. f. ]'2().


Justice Court ; but by several statutes the jurisdiction was restricted to
criminal causes only. By a new constitution of the court in 1672, it was
made to consist of the Lord Justice-General as president, the Lord Justice-
Clerk, and five of the ordinary Lords of Session, who were constituted
the supreme judges in matters criminal. The office of Lord Justice-
General was long held as a heritable office by the Earls of Argyll. In
1628 the Earl of Argyll surrendered his hereditary right, and the appoint-
ments to the office have since been made by gifts under the Great Seal.
James Duke of Montrose, who was appointed to the office in 1795, held
it for the long period of forty years, and on his death in 1836, the duties
of the office were conjoined with those of the Lord President of the Court of
Session, who is now styled Lord Justice- General and Lord President. Lord
Cromartie remarks on the smallness of the salary attached to the office in
his day, but it appears from the laws of King Malcolm that the salary was
then only £5 for every day of the justice-ayre. The office is a very ancient
one, and the names of the Lord Justices are traced back to a very early date.

On the 11th of November 1678, Lord Tarbat was admitted a member of
His Majesty's Privy Council for Scotland. Once restored, his promotions
increased rapidly.

By patent dated on the 16th of October 1681, he was appointed to the
office of Lord Clerk-Eegister in room of Sir Archibald Primrose, who was
appointed Lord Justice-General ; and on the 10th November following, Lord
Tarbat was admitted one of the ordinary Lords of Session.

As Lord Clerk-Ptegister, Lord Tarbat was provided with the lodging in
the Palace of Holyrood, which was for some time occupied by the Earl of
Roscommon. This appears from a warrant by the Duke of Hamilton, as
hereditary Keeper of the Palace, dated September 1682 •} and, on 26th Eebru-

^ Original Warrant, Bundle 2 D, No. 195, of Cromartie Papers.


aiy 1G85, Lord Tarbat received from King James the Seventh a grant of a
pension of £400 in consideration of the expense to which he was subjected
by living constantly in Edinburgh in attendance on His Majesty's service.
The grant Avas to endure during the King's pleasure.^

Lord Tarbat's scholarship and great care and method in transacting busi-
ness eminently qualified him to perform the duties of custodier of the National
Records. He performed the duties in person, and personally inspected and
examined all the existing registers. He was the means of recovering many
important documents and Acts of Parliament, and he also recovered the
warrants of many of the records which were taken away by Cromwell to
England. He obtained an Act of Parliament establishing minute-books
of records, which have proved of the greatest service in searching and ascer-
taining their contents, especially where these are voluminous. While in
office. Lord Tarbat wrote a paper which explains very succinctly the duties
of Lord Eegister, the emoluments of the office, and the services which he
himself rendered in recovering lost records."

Previous to the appointment of Lord Tarbat as Lord Clerk-Eegister, his
old antagonist, Lauderdale, had been superseded in the office of Secretary of
State. He displeased the Duke of York on several important questions, and
made an enforced resignation of his office.

Some account of one who was brought into direct personal collision with
Lord Tarbat, in an early part of his career, may not be inappropriate in this

Online LibraryWilliam FraserThe earls of Cromartie; their kindred, country, and correspondence (Volume 1) → online text (page 11 of 53)