Edinburgh 25th January 1705

D1705/1/18

D1705/1/18¹

Act

Act in favours of the Countess of Southesque for the Custody of the Earle

Anent the petition given in and presnted to the Lords of her Majesties privie Councill By Mary Countess of Southesque, Shewing, That My Lord named manie honourable and worthy persons and her to be Tutors to James Earle of Southesque his son to Continue Curators to him, conforme to the late act of parliament, She being Mother and Tutor have the Custody of his person, and have been so happie in the care of him, and his education; that she doe say that he was equall to anie in his age, and could Subject him to tryall, Her son and She live well and happie together to their mutuall Comfort, and to the Satisfaction of a great pairt if not of the greatest pairt of the Tutors whom she had still studied to oblidge and from whom she will expect a suitable returne, But being upon the nynteenth day of January instant requyred by the Earle of Home in name of the Tutors as his Lordship said to delyver the Earle of Southesk her son to him She was not only Surprized by the Suddentie but lykeways astonished as to what might be the occasion of the said requistition, wherfore Surpryzed as she was, She desyred his Lordships demand in wrytting and offered ane returne to morrow, the same way, But upon this his Lordship took Instruments upon his requisition, which put me in fear of other designs againest her son, wherfore she humbly represent to their Lordships that seeing nothing of neglect as to care or education, or alteration of her condition can be laid to her charge, and that such requisition insinuat a difference betwixt the Tutors and her, and that therby she and her son, are afraid of other designs and sudden surpryzers of him going to or comeing from his Schools and exercises Craving therfore it might please their Lordships that Seeing She is Mother and Tutor, and therby had the undoubted right to the Custodie of her Son, and that the other Tutors concurr with her, and that his Curators are already named by his Father, To give her and him their Lordships protection, and to authorize her to keep him till his pupillarity expyre and he have the disposall of himselfe, and so to remove her fears and jealousies which otherwayes are unavoidable, as the said petition bears, Which petition being upon the twenty third day of January J^aj vii^c and fyve years, read in presence of the saids Lords, They appoynted and Ordained the petitioner to have the Custody and keeping of James Earle of Southesk her son, and have Discharged and heirby Discharges any person whatsomever to meddle with or disquiet the petitioner in the peaceable possession of the said Custody and keeping of the said Earle of Southesk as they will be answerable on their highest perill, untill the said petition and answers if any be given in be advysed by the saids Lords, and allowes the rest of the Earles Tutors to See and answer the petition again Thursday nixt peremptorie, Accordingly there was a representation by way of answer given in by the Earle of Home and Northeske the Lord St Clair, My Lord Rankeillor, and Mr James Martine Tutors to the Earle of Southesque, Shewing The Deceast Charles Earle of Southesk by his nomination of Tutory did nominat and appoynt the persons above, with the Earle of Lauderdale, and Countess of Southesque, and some others, to be Tutors and Curators to his Son the present Earle and appoynted any two of them to be a Quorum, the said Mr James Martine being alwayes one, whom he likewise Ordains to be Manager of his said Son, and all his affairs and actor therin, as the said nomination doth expressly bear, The person above having accepted they proceeded with all imaginable respect toward the Countess, and did aggree frankly that she Should have the keeping and education of her Son to the age of Twelve, which was indeed a Concert, that after that age he Should be at the disposall of his Tutors in order to a free and liberall education, And this was done by act of Sederunt of the Tutors, to which both the Earle of Lauderdale and Countess are Subscrybeing, and farder the Tutors ventured upon giving to the Countess Fyve thousand merks a year, for the Earles maintenance tho he was then only seven years of age, by way of advance, which was above what would have been modified by any judge And besydes gave her, the Tack and possession of the maynes of Kinnaird, with her Lords haill Stocking theronboll, and that at rate far below the value for both and wherof my Lady Still retain’s the possession, as also She was allowed to reside in the house of Kinnaird to which She had no right, and was also allowed the use of the whole furniture and moveables of the house Such was the respect the Tutors bear to My Lady, and refused her nothing that might anywayes tend to her Satisfaction, besydes her ease and conveniency. The Tutors Shall not take notice, that they have not mett with a Suitable return, for they have all a deference and respect to her Ladyship, But insofarras they were intrusted by the defunct, and their office and duty calls them to, they could not but concern themselves in the education of the Earle, and therfore in pursuance of the abovementioned Sederunt, to which the Countess is Consenter They resolved that the Earles person Should be delivered up to them, that they might take care of his having the benefite of a liberall education at Schools and Colledges and that now Considering his age, he ought not to be keeped under her Government, or the Government of Women, and to this the generallity of the Tutors aggreed and sett down their act of Sederunt to that purpose, which was Solemnly Subscryved by them all, and also by the Earle of Lauderdale, and made intimation therof to the Countess, and civilly requyred her, and besydes their former unanimous resolution, they were the more engadged to this that the Countess contrary to the Tutors inclination and orders brought over her son heire, and maintains him under that ane and authority that he hes not been allowed these Two Winters to See any of his Tutors, These with many other considerations hes moved his Tutors after requyreing the Countess by Instrument, to raise and execute a Summonds of exhibition, and delivery of the Earles person to them befor the Lords of Session that the Earles might be bred and educat according to his Rank and quality, and have a free and liberall education suitable to his age, and the Law, and daylie practique in such cases, and to which the Countess had plainly already Consented by Subscrybeing the act of sederunt; wherin the Tutors did allow the Custody of her son to the age of Twelve, and that from thence forth, he was to be delivered up to his Tutors to be educat at schools and universities as they Should think fitt, And therfore humbly entreated that the Countess her petition might be remitted to the Judge Ordinar befor whom ther is already a depending proces for exhibition and delivery of the Earles person, and in the mean tyme, if their Lordships please for their Satisfaction, and their exoneration, the Tutors are Satisfied to meet befor any of their number. they should appoynt to justifie all the poynts of this representation; The Lords of her Majesties privie Councill having upon the day and date of thir presents Considered the above petition given in to them by Mary Countess of Southesque, with ane representation by way of answer, therto by the Earles of Home, and Northesk, The Lord Sinclair, the Lord Rankeillor, and Mr James Martine Tutors to the Earle of Northesque, The Lord Sinclair, the Lord Rankeillor and Mr James Martine Tutors to the Earle of Southesque, and the samen with the former deliverance upon the Countess petition, Being read in their presence, The saids Lords have appoynted and Ordained and heirby appoynts and Ordains the petitioner to have the Custody and keeping of James Earle of Southesque her Son during the years of his pupillarity, and ay and while he attaine to Fourteen years compleat.