AN ABSTRACT Of the most material INTERLOCUTORS of the LORDS of SESSION during the dependence before them of the CAUSE of the two Danish Ships the Palm-tree and Patience of Sunderburg adjudged Prise by the High-Court of Admirality anno 1672. AGAINST Alexander Acheson Captain of the Frigat or Privat Man of War by which the said Ships were brought up and the Owners of the said Frigat viz. John Duke of Rothes Lord High Chancellor and William Lord Cochran deceassed Charles Maitland of Haltoun Lord Thesaurer Deput and one of the Lords of Session Sir John Cohran of Ochiltrie Sir William Bruce of Balcaskie Clerk of the Bills Sir James Standfield of New-milnes Robert Baird of Sauchtonhall Sir William Binning c. EXCERPED Out of the two DECREETS of the LORDS pronounced in favour of the Strangers 25. February 1674. but not extracted till the 30. of July 1680. WITH The Articles of His Majestie 's TREATY with the King of Denmark relating to the Case of Ships and Goods taken at Sea in time of War an Article of His Majesties INSTRUCTIONS insisted on by the Capers against these Ships His Majestie 's LETTER to the LORDS in the Case of another Ship relative to His INSTRUCTIONS and divers other Papers related to in the DECREETS EDINBVRGH Printed for the STRANGERS in the Year 1682. An Abstract of the most material Interlocutors in the two Decreets of the Lords of Session in favour of the Owners of the two Danish Ships the Palm-tree and Patience of Sunderburg against Captain Acheson and his Owners in whose favour they were adjudged Reducing the Admirals Decreets and ordaining the Capers to pay the Value of the Ships and Goods Upon Debate of the Reasons of Reduction in praesentia 22. February 1673. THE LORDS FIND that Reason of Adjudication that the Strangers had not Passes conform to the Formula agreed upon in the Treaty betwixt the Kings Maiesty and the King of Denmark albeit the Ships loosed from Norway in the beginning of Iuly 1672. long after the breaking out and knowledge of the War not to inferre a Confiscation of the Ships and Loadings alone But that it importeth a just ground to seize and bring the same to Tryal and that it putteth the burden of Probation upon the Strangers by Documents and Witnesses above exception That the Ships and Loadings belong to the Kings Allies and Freemen and not to the Kings Enemies AND FIND that the Oaths of the Skippers and Owners which would have been sufficient if they had been adhibited at the obtaining of the Passes conform to the Formula are not now sufficient to clear the Property of the Ships and Loadings AND THAT the being of no Passes aboard relative to the Voyage but general Passes before the War and that by the Skippers Oaths it appears that they concealed the Fraught-Brieffs and that they were hid apart from the rest of the Documents and found by the Privateer and bear a greater Fraught to be paid in case the Ships were brought up to Holland provided a safe Delivery were made of the Goods DOTH IMPORT an intended Delivery of the Goods in Holland notwithstanding of the Missives and Documents aboard AND FIND the same grounds joyntly to be a sufficient presumptive Probation of a Contrivance and that the Ships and Goods are not free BVT YET to admit of a contrary positive Probation by Documents and Witnesses above exception That the Ships and Loadings belong to the Subjects of Denmark His Majesties Allies unless the Privateer prove the same to belong to the Kings Enemies LIKE AS THE LORDS FIND that the true Port being concealled or made Arbitrary by the Fraught-Briefs if the Privateer should instruct That Dail-boards such as were in these Ships are â—ounterband by the Custome of the Admirality of England or Holland that ground was sufficient though the Ships and Goods were proven to belong to Freemen to infer Confiscation of both THEREFORE THE LORDS granted Commission mutually to either Party for proving the Property and Value of the Ships and Goods the quantity of the Loadings and that the Port designed was London And to the Defenders that the Goods were Counterband But upon a Petition given in by the Pursuers Representing a mistake in the said Interlocutor as to the matter of the Fraught the Fraught being not a greater for Holland than for England but a lesse And craving the Benefit of a contrary Probation as to the matter of Counterband c. Eodem die The Lords ordain these words Viz That the Fraught-Briefs bear a greater Fraught to be paid in case the Ships were brought up to Holland provided a safe Delivery were made of the Goods which the Lords find did import an intended Delivery of the Goods in Holland Notwithstanding of the Missives and Documents aboard to be left out of the Interlocutor and grant a contrary Probation to the Pursuers to prove That Dails are not Counterband And ordain the Probation to be hinc inde vp Documents above exception Upon Report made of the Commissions by the Pursuers from the Magistrates of Sunderbare and Christiania and from the Lord Mayor and Aldermen of London with an Attestation from the Admirality of Holland and His Majesties Declaration in favour of the Danes 25. February 1674. The Lords having advised the Reports with the Depositions of the Witnesses contained therein c. Then find that the property of the said Ships and Goods doth belong to Carsten Matsen and Hanse Petersen and their Owners His Majesties Allies And therefore Reduce the Decreets of Adjudication c. Upon Informations given in hinc inde in Relation to His Majesties INSTRUCTIONS 23. Iuly 1674. The Lords having considered the Informations given in by either Party together with His Majesties Instructions especially that Artcle thereof concerning concealled Documents they notwithstanding thereof adhere to their former Interlocutors and Decreets Reducing the foresaid Decreets of Adjudication obtained before the Admiral in regard of the Probation That the Ships and Goods belong to the Kings Allies and Freemen Item Upon a Hearing in Presence upon His Majesties INSTRUCTIONS 30. Iuly 1674. The Lords having heard c. They adhere to their former Interlocutor And ordain the Decreets to be Extracted Upon a Petition of the Capers for a new Hearing and Delay till November Eodem die The Lords having considered the said Supplication ADHERE to their former Interlocutors And ordain each Party to name a Merchant for Valuing of the Ships and Goods and remit to the Lord Collingtoun to consider the Valvation and to give his determination thereanent And ordain the Decreets to be extracted accordingly The Capers at this time being Trading with the Ships and the Strangers by the Envoy of Denmark having Represented it to the King and made Application to His Majesty for having the Values of their Ships and Goods decerned to them conform to their probation at Sunderburg and London with the Damages and Charges they had sustained And His Majesty having recommended the case
the Seal of the Office of Majorality of the same City to these Presents by us signed have caused to be put and affixed and the same to be signed by our Town Clerk Dated in London the 22. day of July anno Dom. 1673. and in the five and twentieth year of the reign of our Soveraign Lord King Charles the second by the Grace of GOD of England Scotland France and Ireland King Defender of the Faith c. Robert Hanson Major Wagstaff Thomas Bludworth William Turner John Moore John Frederick Richard Ford. William Prichard William Peake James Edwards Robert Clayton Patience Ward Relating to the Ship the Patience Pass from the Town of Sunderburg AUgustissimi ac potentissimi Regis Christiani quinti Daniae Norwegiae Vandalorum Gothorumque Regis c. Nos constituti Consules ac Senatores Civitatis Sunderburgi universis singulis cujuscunque Dignitatis status conditionisve fuerint has Literas nostras inspecturis ut cujusvis status conditio postulat notum facimus testamur quòd harum praemonstrator Civis noster dilectus Johannes Petri Nauta officiosè nobis significaverit quâ ratione cum presenti sua Navi hîc apud nos structa Patientiae nomine insignita illique adjunctis illatis mercibus ad tractanda sua negoria honestam versuram exercendam divino savente numine in mari Orientali Occidentall pro re natâ occasione datâ hoc vere futura aestate durâ—nte â—â—â—â—gate constituit officiosè obuixè a nobis petendo c. Est itaque c. De verbâ— in verbum as in the Pass granted for the Ship the Palm-tree except the difference of the Date this being dated 18. March 1672. Toll-Schedule In His Royal Majesties Custom-office in Christiania Hans Petersen from Sunderburg Skipper of the Pinnace-Ship with two Tops called the Patience presently sailed by him of the bigness according as the Met-brief bears of 1041 â— lasts of date at Dramm 26. April 1671. arrived here the 14. of this instant with 9800. Daills and payed for each Last 4 1 â— Ricks-Ores cometh in all to 117. Ricks-Dallers 2. Marks and 6. Shillings and passes free Datum Christianiae in the Custom-office 22. Junii 1672. Locus Sigilli Jurgen Seckman Registred Nicolas Fluggen Freight-Brief Anno 1672. the 23. June In the Name of the Holy Trinity we undersubscribers did accord and agree together in manner following That I Jens Jensen in Christiania unto Skipper John Petersen for his present possessed Ship called the Patientia from Sunderburg after GOD grant a happy Arrival for London shall pay him for Freight 175. lib. sterl But if unexpectedly contrary and against his will he should be carried for Holland he after a good Delivery there should have for his Freight 780. Ricks-Dalleâ—â— That this by GODS assistance both from me Freighter Jens Jensen and me Skipper John Petersen may he accomplished and kept without skaith we have these few lines both together subscribed and every one of us taken a Copy for himself Done at Christianiae year and day as above Jens Jensen Furthermore there is promised to the Skipper for his Caplaken 5. lib. sterl Missive Letter by the Freighter to Peter Splidt Merchant in London Much Honoured and Respected Friend Signior Peter Splidt Salutem Since my Cousin Skipper John Petersen from Sunderburg has bought his Loading of good Dâ—ills from me and another good Friend I intreat you humbly that after GOD does grant him a happy Arrival you will be pleased to be helpful unto him in exchanging the same And if he should deliver you any Mony which for his own Loading he remained resting to a Friend here I intreat you to accept of it and if possible by a sure hand in Hamburg to order it hither Time will no more permit me for the present but I shall write more about it with Nomen Ipsen Be recommended to GODS Mercy Christiania the 23. June 1672. Your willing Friend Jens Jenseu Depositions of the Master and one of the Mariners before the Admirality Edinburgh 13. July 1672. Compeared Hans Petersen Master of the Ship called the Patience of the Age of 31. years Married who being solemnly sworn and examined Depones That he was born and dwels at Sunderburg and that there are ten Eaters in the said Ship who live all in Jutland And depones that the Ship was built at Sunderburg a year since and that he has been Master of her ever since And that he first brought the Ship from Sunderburg with Ballast to Christiania in Norway and went from Christiania to London with a Loading of Daills to Mr. Pottinger there and went again from London to Christiania with Bailast And at Laerwick took a new Loading of Daills upon Mr. Pottinger's Accompt and came back therewith to London And from that went to Newcastle and took in a Loading of Coals and from that went to Sunderburg And then the first of April last was freighted by Aptaket Beâ—ket at Jones in Finie to take a Loading of Cornes to Bremen and by storm of Weather was put up to Amsterdam and Lawrence Kettlestoun there got the said Cornes from the Deponent And came with Ballast from Amsterdam to Christiania without any Order or Advice from his Owners the Deponent and his Brother being most part Owners And depones That he loadned the Ship with 9800. Daills at Christiania in June last and got Mony from Jens Jensen who is a 32. part Owner and lives there And depones That he was going to London with the said Loading but was taken by the way upon the 2 July instant about three or four leagues off the Shoar of Norway by Captain Acheson And depones That the Charter-party and the Letter of Advic were direct to Mr. Splidt in London who was to help the Deponent to sell the Loading And depones That no part of Ship or Loading belongs to any of the Subjects of the United Provinces And depones That he cast no Papers overboard nor has no papers concealled except the Charter-party and missive Letter above written And depones The Ship is of burden 104. Last 4. Auchors 3. Cables one Haasser and a Pertling and Masts clad and Blocks full And all this is of Truth as he shall Answer to GOD. Hans Petersen Eodem die Compeared Niels Christiensen Mariner in the said Ship of the age of twenty years unmarried who being solemnly sworn and examined Depones That the Master and Mariners are all Danish men and that he was hired to go to London with this Loading And that he knows not of any Papers throwen overboard destroyed or concealed M. Jo. Stuart Commission of the Lords In actione rescissoria intentata coram Senatu Regni Scotiae ad instantiam Ioannis Petri navarchi anias ex exercitoribus navis Danicae cui nomen Patientiae Sunderburgensi tam pro se quam pro caeteris exercitoribus ejusdem navis ac Ioanne Ioannis domino mercium quibus oneratae suit agentis adversùs
are acquainted and do very well know that during the time of the last War and this present War several Ships laden with Firre Daills after it was made to appear in the said Court they belonged to Friends and Allies have been restored to the Owners and more particularly the Ships called the Dram of Norway the Christianus quintus the Salvadore and several others Charles Moore John Hough IN FAITH and Testimony whereof We the said Lord Major and Aldermen of the said City of London the Seal of the Office of Majorality of the same City to these Presents by us signed have caused to be put and affixed and the same to be signed by our Town Clerk Dated at London the two and twentieth day of July Anno Dom. 1673. And in the five and twentieth year of the Reign of our Soveraign Lord King Charles the second by the Grace of God of England Scotland France and Ireland Defender of the Faith c. Locus Sigilli Robert Hanson Major Wagstaffe Thomas Bludworth William Turner John Moore John Frederick Richard Ford. William Prichard William Peake James Edwards Robert Clayton Patience Ward Relating to both Ships Attestation of the Admirality of Holland that Daills are not Counterband For satisfying the Petition subjoyn'd The Petitioner receives this Declaration That Norway Daills by this Court according to the order of Holland are not reputed Counterband Commodities Actum the 13th April 1673. M. Fochen 1673. By command of the Court J. de Wit Locus Sigilli By the Noble and Mighty Lords the Commissioners of the Court of Admiralty at Amsterdam Bernard Vander Linden Merchant here giveth with all beseeming reverence to know how that in the year 1672. the Ship called the Patience whereof Hans Petersen of Sunderburg is Skipper and the Ship called the Palm-trree whereof Carsten Matsen of Sunderburg is Skipper was caped and brought up to Edinburgh in Scotland by some Scots Capers which foresaid Ships belong to Sunderburg and their Loading consists of Norway Daills And in like manner the Owners of the foresaid Ships and Loadings have reclaimed the same before the Government of Edinburgh who have brought the matter in question so far that the Owners have to prove that Norway Daills are no ways Commodities of Counterband here in this Country so as thereupon the said Ships and Loadings are to be declared free Wherefore the Supplicant means himself unto your Noble and Mighty Lordships submissively intreating that you would be pleased to grant him a Declaration That Norway Daills are not holden for Counterband Commodities in this Countrey which doing I remain Your Noble and Mighty Lordships Servant Bernard Vander Linden in name of the Skippers Carsten Matsen and Hans Petersen of Sunderburg His Majestie 's Declaration in favour of the Danes De la part de Sa Majesté le Roy de le Grand ' Bretaigne l'Extraict de la Response de Monsieur le Secretaire Trevor sur le Memoir de Moâ—â—â—â—â—r l' Envoyé Extradinaire de Dennemâ—â—â— presenté le neufiesme Maâ—â—â—â—â— LE Roy m'a commandé à vâ—â—â— donner 〈◊〉 response an Memoir que vous auez 〈◊〉 senté le neufiesme instant Que Sa Majéste est d'accord 〈…〉 durant la Guerre presente tous les Suiets du Roy de Dennemarc de quelques Lieux qu'ils en viennent puissent passer repasser librement auec leurs Gents Navires Et quant aux Marchandises qu'ils puissent traffiquer librement porter en tous Lieux excepté dans les Places assiegées toutes sortes de Bois de Masts de Viures le Lin le Chanvre le Poix le Goldron toutes sórtes de Marchandises hormis les Munitions de Guerre le Canon toutes sortes d' Armes à feu tranchantes lesquelles serunt estimées contrabende Jesuis Monsieur Vostre A Whitehall ce 22. May 1672. I'ay fait chercher les Registres de Monsieur le Secretaire Trevor trouue que cet Escrit est la vraye Copie de ce que le dit Sieur Trevor escrevit alors à Monsieur l' Envoyé Extraordinaire de Dennemarc Henry Coventry A Whithal ce dixhuictiesme d'Aoust 1673. An Extract of the Kings Declaration in favour of the Danes delivered by Mr. Secretary Trevor in answer to a Memorial of the Danish Envoy Extraordinary in May 1672. THE King has commanded me to give you in Answer to your Memorial which you have exhibited the 9th Instant That His Majesty doth agree and declare that all the Subjects of the King of Denmark may during this present War freely pass and repass from what places soever they come with their People and Ships And concerning their Merchandises that they may and can freely traffick and carry to all places except those that are besieged all sorts of Wood Masts Provisions Flax Hemp Pitch Tar and all other sorts of Merchandises except Warlike Ammunition Canons and all other sorts of Arms for firing aswell as cutting which shall be esteemed Conterband Goods I am Sir Your At Whitehal this 22. of May 1672. I have caused look the Registers of the deceassed Mr. Secretary Trevor and find that this Writing is a true Copy of what the said Mr. Secretary wrote then to the Envoy Extraordinary of Denmark Henry Coventry At Whitehall this 28. of August 1673. Protestation in behalf of the Strangers against the Capers their sending the Ship the Palm-tree to Sea after the Lords of Session by their Sentence Feb. 25. 1674. had declared the same free The like Protestation navarchi navisque tantum mutatis nominibus being made at the same time in behalf of the Strangers concerned in the Ship the Patience AT LIETH and EDINBURGH the seventienth and eightienth dayes of April 1674. and of the reign of Our Saveriagn Lord CHARLES the Second the twenty sâ—xtth year The which Dayes in presence of me Notary publick undersubscribing and Witnesses afternamed compeared Mr. John Jnglis Advocat as Factor for Carsten Matzen Master and Part-owner of the Ship called the Palm-tree of Sunderburg and Hans Jebsen Merchant in Sunderburg the other Part-owner of the said Ship And past to the House of William Binning Merchant in Edinburgh and Residenter in the said Town of Lieth as Part-owner of the Frigat called the Bruce whereof Alexander Acheson was Captain and as cautioner for the said Captain Where having inquired at the said William Binning's Wife if her Husband was within and she having answered he was not at home he exhibited and produced to her a Factory granted to him by the said Carsten Matzen and Hans Jebsen of the Date at Sundersburg the fifth of July 1673. and an Act and Commission of the Lords of Council and Session dated the two and twentieth of February 1673. at the instance of his said Constitutents and the Proprietar of the Loading of the said Ship the Palm-tree against the said Captain Acheson and the Owners of the said Frigat and the said Captain his said Cautioner for reducing of a Decreet of
And 〈…〉 the Pursâ—ers oppone the Reports and the Probation adduced which may coâ—â—â—â—ce any 〈◊〉 that has a regard to Justice that these Ships and Loadings are altogether 〈◊〉 And as to that Quality of the 〈◊〉 bearing That if Daills were proven counterband by the Customs of England or Holland it should be a ground of Confiscation albeit the Ships and Goods were proven to belong to free-mâ—n in reâ—pect the Freight-Briefs are arbitrary as to the Port. It was answered 1. That it was absurd to pretend that the Freight-Briefs are arbitrary as to the Port the Port of London being the true designed Port and Holland only mentioned in the case of contingency in case the Ships should be brought up thither 2. By the Probation adduced London is positively proven to have been the intended Port. 3. The Capers have not at all proven that by the Custom of the Admiralties of England or Holland Daills are counterband but on the contrary it is proven by the Custom of the said Admiralties that Daills â—re not counterband 4. By an Extract under the hand of Secretary Coventry of His Majesties Declaration in favour of the Danes it is evident that no Goods are counterband as to the Danes exexcept Ammunition and warlike Instruments and Victual carried to places besieged So that albeit these Ships had been absolutely designed to Amsterdam and that Daills by the Custom of those Admiralties were counterband neither of which is true yet by virtue of the said Declaration Daills are not counterband to the Danes In respect of all which there is not the least colour or pretence of Law why the Decreets of Adjudication of these Ships should not be reduced and the Ships and Goods restored or the Value as it is proven cum omni causa Information for the Capers And it being informed by the said Defenders and their Procurators That in the Reduction of the Decreets of Adjudication of the foresaid Ships pursued at the instance of the said Skippers against the said Captain and his Owners Amongst several grounds of Adjudication insisted upon which are the grounds of the said Decreets such as the informality of the Passes and that there was no special Port designed the principal ground was That albeit the Skippers pretended that the Ships and Goods belonged to Subjects of Denmark and that the Goods were going to England and were to be consigned to Merchants there and that the Skippers being examined concerning the having of any other Papers but the Passes produced They declared upon Oath they had none but each of them a missive Letter directed to their correspondents in England And particularly being examined if they had any Charterparties they did expressly depone That they had no Charterparties And yet when they had taken out their missive Letters in a secret place upon one side of the Ship affirming they had no more yet upon the other side of both Ships a secret place was discovered in which there was concealed Freight Briefs for each of the Ships by which the Freighters did condition to pay to the Skippers of the respective Ships each particular Freight upon safe Delivery of the Goods in Holland From which it was Inferred the time of the Debate That the Passes being general and not condescending upon the Port albeit missive Letters were directed to Persons at London yet it was but a Contrivance and which was clearly convelled by the Freight-Briefs which conditioned a Freight for Holland And albeit it was pretended by the Strangers that these Freight-Briefs did condition a Freight both to England and Holland and only to Holland in case they were taken up against their will and that the Goods were safe delivered yet so pregnant were the grounds of prevarication and contrivance that the Lords upon that Debate considering that the Skippers did swear that they had no other Papers they notwithstanding of their Oaths found the Freight-Briefs to be concealed and the grounds insisted upon to be a sufficient presumptive Probation of a Contrivance but yet found that there was place for a positive contrary Probation by Writ and Witnesses above exception of the freedom of the Ships and Goods and gave Commission for that effect The sold Lords would be pleased to consider That long after this Debate His Majestie 's Instractions which were not then known to the Defenders in the Reduction were sent to their Lordships by which it was most evident and clear that the having of double Documents or concealing of any Documents was per se a sufficient ground of confiscation of Ships and Goods Whereupon if the Defenders had insisted undoubtedly the Lords would have assoiled them And therefore seing the Lords even before knowledge of His Majestie 's Instructions found the Presumptions of Prevarication and Concealment so strong as appears by the Interlocutor and albeit then a contrary positive Probation of freedom was admitted yet now the Defenders do found upon these emergent Instructions and alledge That esto argumenti causa the Ships and Goods were free which truely they are not what ever be reported by Commissions wherein great Art and Prevarication is used yet these matterial Papers being expressly concealed and that upon Oath of the Skippers swearing they had no such Papers The very Concealment by the Instructions is a sufficient ground of Confiscation whether the Ships and Goods be free or not and cannot admit of a contrary Probation And therefore it was hoped the said Lords would then advise the Reduction conform to the Instructions without any regard to what hath been done upon the Commissions Whereby in Justice the Adjudications must be sustained or otherwise in case any scruple remained with their Lordships they would allow the Parties Procurators a Hearing thereanent Especially seing upon a Bill lately given in by the Defenders the said Lords declared They would hear them upon the Instructions Which Informations above written being upon the 24. July 1674. considered by the Lords together with His Majestie 's Instructions especially that Article thereof concerning double and concealed Documents THE SAID LORDS Notwithstanding thereof adhered to their former Interlocutor and Decreet in reducing the foresaid Decreets of Adjudication obtained before the Admiral in regard of the foresaid Probation that the Ships and Goods belonged to the King's Allies and Free-men
this Port of London to be here sold and disposed of for her Accompt except what was the Masters and Ships Companies as by the Letters of Advice received by this Deponent from the said Christina Hammers and one Jens Jensen of Christiania the Correspondent of this Depoâ—ent may appear And this Deponent verily believeth and hath alwayes so understood for several years past that the said Carsten Matsen Hans Jebsen and Christina Hammers are Subjects of the King of Denmark and of no other Prince or Nation whatsoever And this Deponent further saith that he verily believeth that the said Loading of Daills had they arrived and come to this Port of London when the said Ship was surprised and taken they might have been here sold for at least five pounds the Hundred for that this Deponent did then sell the very same Persons Goods which came hither in the said Ship Palm-tree the last Voyage before her being taken for above five pounds ten shillings a Hundred and for near six pounds a Hundred it being then the price current this Deponent sold such Daills for at this Port of London And moreover this Deponent saith that he never knew or understood that Norway Firre-daillâ— were ever accounted by the Custom of the Court of Admiralty in England counterband Goods or that they are so adjudged during this War John Shorter Peter Splidt of London Merchant aged fourty nine years or thereabouts sworn and examined by virtue of the said Commission deposeth and saith upon his corporal Oath That he well knoweth Carsten Matsen Master of the Ship Palm-tree of Sunderburg and that the said Carsten Matsen and Hans Jebsen are Owners of the said Ship Palm-tree And for reason of his knowledge of the same this Deponent saith That he hath known all the Freights that the said Ship Palm-tree and White Lillie hath brought to this Port of London for several years now past and hath received the Moneys due for the same Freights here in London by the order of the said Owners and for their Accompt and afterwards remitted the same to them by Bills of Exchange for their own proper use And this Deponent also very will knoweth that the said Ship Palm-tree was loaded at Christiania with Daills and bound for this Port of London when that she was taken and brought into Scotland in July last and that the said Ships Loading was consigned to Mr. John Shorter of London Merchant to be sold at this Port of London for the proper Accompt of Christina Hammers of Christiania except what was the Masters and Ships Companie 's for that this Deponent both before and since the said Ship 's Capture had several Letters writ and sent to him from the said Christina Hammers signifying that the said Ship and her Loading of Daills were intended and consigned as aforesaid And this Deponent knoweth that the said Carsten Matsen Hans Jebsen and Christina Hammers are Subjects of the King of Denmark and of no other Prince or Nation whatsoever And this Deponent further saith that the said Ship 's Loading of Daills would have been worth and sold for here at this Port of London had they been brought hither when that she was surprised and taken the several prices following viz. The eleven and twelve foot Daills for six pounds the Hundred and the nine and ten foot Daills for five pounds a Hundred and that he this Deponent then sold such Daills for the said Prices that were of the same Parcel as those were of laden in the said Ship Palm-tree when she was taken which came consigned to this Deponent to this Port of London in June 1672. in the Ship St. Peter of Sunderburg John Matsen Master laden at Christiania aforesaid by Jens Paulsen deceassed late Husband of the said Christina Hammers and Jens Jensen of Christiania aforesaid Merchant And this Deponent moreover saith that he never knew or heard that by the Custom of the Court of Admiralty in England Norway Daills were ever accounted counterband Goods or that they are adjudged so during this present War Peter Splidt Hans Paulsen Master of the Ship called the Flying Hart of Sunderburg aged twenty four years of thereabouts and Peter Jebsen Master of the Ship called the St. Peter of Sunderburg aged twenty two years or thereabouts both Inhabitants of Sunderburg aforesaid and Subjects of the King of Denmark but at present in this City of London sworn and examined by virtue of the said Commission depose and â—ay upon their corporal Oaths jointly as followeth viz. That they very well know Carsten Matsen Master of the Ship Palm-tree of Sunderburg in the said Commission named and that the said Ship belongeth and appertaineth to Hans Jebsen and the said Carsâ—en Matsen who are both Subjects of the said King of Denmark And these Deponents say that in July last past in the Voyage in which the said Ship was taken and brought into Scotland she was designed and intended with her Loading of Daills for the Port of London and to no other Port whatsoever And these Deponents do certainly know and solemnly affirm that the Loading of the said Ship when she was first taken did and doth properly and solely belong and appertain unto Christina Hammers in the said Commission named who is a Subject also of the said King of Denmark And these Deponents also well know that the said Ship Palm-tree was built at Sunderburg aforesaid for that they saw the said Ship there upon the Stocks when she was building And that they these Deppâ—ents were at Christiania in Norway where the said Ship was loaden and did therefore know that the said Loading of the said Ship belonged to the said Christina Hammers and that the same was designed only for the Port of London as aforesaid Hans Paulsen Peder Jebsen Charles Moore Notary publick and Deputy-Register of the High Court of Admiralty of England aged fourty three years or thereabouts and John Hough Notary publick one of the Clerks of the said Court aged twenty eight years or thereabouts sworn and examined by virtue of the said Commission depose and say upon their corporal Oaths That by the Custom of the Court of Admiralty of England Firre Daills are not nor never were since their remembrance accounted counterband Goods Giviâ—â— for reason of their knowledge for that he the said Charles Moore hath belonged to the said Court as a Clerk and Deputy Register for the space of twenty years and he the said John Hough for the spâ—â—â— of seven years and are acquainted and do very well know that during the time of the last War and this present War several Ships loaden with Firre Daills after it was made to appear in the said Court they belonged to Friends and Allies have been restored to the Owners and more particularly the Ship called the Dram of Norway the Christianus quintus the Salvaâ—â—r and several others Charles Moore John Hough IN FAITH and testimony whereof we the said Lord Major and Aldermen of the said City of London
pedum uniusque vero circiter pedis latitudinis onerasse quae ad se propriè pertinuere praeter quas fuisse ad mille integras longitudine latitudineque superioribus pares navi impositas quae pertinuere ad navarchum atque noutas Quorum in fidem nomina sua ac siglla apposuere Jens Jensen Kersten Hammer Rilect of Jens Paulsen Quae omnia ita in Senatu nostro uti suprà scripta sunt peracta esse publico hoc instrumento Civitatis nostrae sigillo munito atestamur Christianiae die 12. Augusti anno millessimo sexcentesimo septuagesemo tertio Christianus Rofingius Notar. Christ Report of the Lord Major and Aldermen of London TO ALL that shall see these Presents or hear them to be read and especially to the Lords of Council and Session of Scotland Sir ROBERT HANSON Knight Lord Major and the Aldermen or Senators of the City of London send Greeting Know ye that on the day of the Date hereof by virtue of the Commission annexed there appeared and personally came into the Kings Majesties Court holden before us in the Chamber of the Guildhall of the said City the several Deponents hereafter named being Persons well known and worthy of good Faith and Credit who in answer to the several Queries and Allegations in the said Commission contained did by their solemn Oath which they severally took upon the holy Evangelists of Almighty God before us then and there solemnly declare testify and depose for certain and undoubted truth in manner and form as in their several Depositions is at large contained viz. Peter Splidt of London Merchant aged fourty nine years or thereabouts sworn and examined by virtue of the said Commission deposeth and saith upon his corporal Oath That he well knoweth Hans Petersen Master of the Ship Patience of Sunderburg and that the said Hans Petersen Tyge Matsen and Hans Christian are the Owners of the said Ship Patience and Inhabitants of Sunderburg aforesaid and Subjects of the King of Denmark and of no other Prince or Nation whatsoever And for reason of his knowledge hereof this Deponent saith that he hath known all the Freights that the said Ship Patience hath brought to this Port of London for several Years now past And by the order and appointment of the said Owners and for their Accompt this Deponent hath received the several Sums of Money due for the said Freights here in London and afterwards remitted the same to them by Bills of Exchange for their own proper use And this Deponent knoweth That the said Ship Patience was laden with Daills at Christiania by Jens Jensen Merchant there a Subject also of the said King of Denmark and was bound for this Port of London and no other Port whatsoever at the time when she was taken and carried into Scotland which was in July last And that the said Loading was for the sole and proper Accompt of the said Jens Jensen and configned by him to this Deponent unto this Port of London to sell the same here for him except what was belonging to the Master and Ships Company For that this Deponent both before and since the Capture of the said Ship Patience received several Letters from the said Jens Jensen concerning the same Loading and consignment thereof unto him to this Port of London with order to take care of the Sale and Disposal thereof for his the said Jensens Accompt as aforesaid And this Deponent further saith That the said Ships Loading of Daills would have been worth and sold for here at this Port of London had they been brought hither when that she was surprised and taken the several Prices following viz. the eleven and twelve Foot Daills for six Pounds the Hundred and the nine and ten Foot Daills for five Pounds the Hundred And that he this Deponent then sold such Daills for the said Prices that were of the same Parcel as those were of loadned in the said Ship Patience at the time of her Capture which came consigned to this Deponent to this Port of London in June 1672. in the Ship St. Peter of Sunderburg John Matzen Master laden at Christiania aforesaid by Jens Paulsen deceassed and the aforesaid Jens Jensen And moreover this Deponent saith That he never knew or heard that by the Custom of the Court of the Admiralty of England Norway Daills were ever accounted counterband Goods or that they are adjudged so during this present War Peter Splidt Hans Paulsen Master of the Ship called the Flying Hart of Sunderburg aged twenty four years or thereabouts and Peter Jebsen Master of the Ship called the St. Peter of Sunderburg aged twenty two years or thereabouts both Inhabitants of Sunderburg aforesaed but at present in this City of London and Subjects of the King of Denmark sworn and examined by virtue of the said Commission depose and say upon their corporal Oaths joyntly as followeth viz. That they very well know Hans Petersen Master of the Ship Patience of Sunderburg in the said Commission mentioned and that the said Hans Petersen is a Subject of the King of Denmark and one of the Owners of the said Ship and that Hans Christian Tyge Matsen Paul Petersen and Jens Jensen who are also Subjects of the King of Denmark are other of the Owners and Proprietors of the said Ship Patience And these Deponents say That in July last past in the Voyage in which the said Ship was taken and brought unto Scotland she was designed and intended with her Loading of Daills for the Port of London and to no other Port whatsoever And that they these Deponents certainly know and solemnly affirm that the Loading of the Ship when she was taken did and doth properly and solely belong and appertain unto the aforesaid Jens Jensen in the said Commission named And these Deponents also well know that the said Ship Patience was built at Sunderburg aforesaid for that they saw the said Ship there upon the Stocks in the time of her building And that they these Deponents were at Christiania in Norway when the said Ship was laden and did therefore know that the said Loading of the said Ship belonged to the said Jens Jensen and that the same was designed only to the Port of London as aforesaid Hans Paulsen Peter Jebsen Charles Moore Notary publick and Deputy Register of the High Court of Admiralty of England aged fourty three years or thereabouts and John Hough Notary publick one of the Clerks of the said Court aged twenty eight years or thereabouts sworn and examined by virtue of the said Commission depose and say upon their Corporal Oaths That by the Custom of the Court of Admiralty of England Firre Daills are not nor never were since their remembrance accounted counterbond Goods Giving for reason of their knowledge for that he the said Charles Moore hath belonged to the said Court as a Clerk and Deputy Register for the space of twenty years and he the said John Hough for the space of seven years and
Witnesses Gilbert Story Maltman in Lieth Henry Mader Messenger in Edinburgh and William Montgomrey Messenger in Edinburgh Which said Witnesses were all specially called and required in manner and at the times above written Ita est Ioannes Farquhar Notarius publicus in praemissis requisitus testan meis signo at subscriptione manualibus Jo. Farquhar The Informations given in for the Strangers and the Capers in relation to His Majestie 's INSTRUCTIONS whereupon the Interlocutor of the Lords July 23. 1674. proceeds As the same are insert in the Decreets of the Lords in the Strangers favour pronounced Feb. 25. 1674. but not extraced till the 30. July 1680. Information for the STRANGERS IN the Reduction of the Decreets of Adjudication of the said Ships the Palm-tree and Patience the pretended grounds of Adjudication being coincident as to both the Lords by their Interlocutor Feb. 22. 1672. allowed the Pursuers to prove the Propency of the Ships and Goods and Value And likewise to prove the Daills that were their Loadings were not Counter-band by the Custom of the Admiralities of England and Holland And allowed the Defenders to prove the contrary After which Interlocutor there was a Bill given in by the Defenders pretending that by His Maiesties Instructions it was declared That the having or using of false or double Doctuments or coâ—â—eâ—ling of Papers was a just ground of Confiscation And that it was proved and acknowledged by the Skippers that there were concealed Papers the Skipper of the Palm-tree hauing denyed that he had any Charter-partie which notwithstanding was concealed a Ship-board and the Skipper of the Patlentia having declared that he had no Paperâ— concealed except a Charter partie and missiue Letter And thereupon craving That the Ships and Goods might be declared lawful Prise upon that ground Notwithstanding whereof the Lords adhered to their former Interlocutor but declared that they would consider the same the â—â—me of the advising the Reports There was then Reports made upon the said Commission whereby the points of the Interlocutor were fully cleared and proven viz. That the Property of the Ships and Goods did belong to the Subjâ—cts of the King of Denmark and the Value was likewise proven and the Customs of England and Holland That Daills were not Counterband It being alledged That notwithstanding the Ships and Goods must be declared lawful Prise upon the Pretences contained in the Bill viz. That the Skippers acknowledge by their Depositions that there were Papers concealed It was answered The Pretences are of no weight and it were indeed a Preparative the like whereof did never escape the Publict Justice of any Nation upon such impertinent and frivolous Conceits to deprive his Majesties Allies of their Ships and Goods after so clear and full and undenyable a Probation of the Propertie as is here proven at three several Places vix Sunderburg in Denmark Christiania in Norway and at London So that it is impossible any scruple can remain but that the Propertie of the Ships and Goods did truely belong to the Subjects of the King of Denmark and were as truely designed for the Port of London as is clear by the same Probation And as to what was urged upon the concealing of Papers albeit there had been Papers concealed His Majestie 's Instructions could be here no ground of Confiscation 1. Because his Majestie 's Instructions were long after the Capture and could not be extended quoad praeterita 2. By the 24. Article of the Danish Treaty which is lex bell it is provided that Justice and Equity should be administred to the Subjects of either Crown according to the Statutes and Lows of either Countrie and therefore no such private Instruction could prejudge the Pursuers contrary to the Treaty But here the Pretence of concealing Papers was frivolous For. 1. when the Ships were taken the Skippers did produce to the Captain of the Privateer certain Papers and cold him that they had those which were pretended to be concealed a Ship-board and desired liberty to bring the same which he refused and insolently told them That they behoved to go to Scotland what ever Papers they had aboard for they did not know what GREAT OWNERS be had And withall then said that they might then produce their Papers when they were in Scotland 2. When they were brought to Scotland the Skippers before the Admiral declared That they had the said Papers a Ship-board and were allowed to go a Ship-board and fetch them and did go in company of the Privateer And as one of the Skippers was taking out of one part of the Ship one Paper the Captain of the Privateer or some of his Officers did fall upon the other not having the patience till the Skipper took it out himself And if that be a prettie Concealment the Lords wre desired to judge 3. What imaginable reason could there be for any such fraudulent Concealment as to Scots or English Capers the Papers alledged to be concaled being Documents of the Ships Freedom and that the Port designed was London the Papers being Freight-brieffs and missiue Letters dicreet to Mr. Shorter and Mr. Splide at London 4. The Clause in His Majtstie's Instructions can only be understood in such a case when Writs are abstracted and concealed and whereof the tenor does not appear and so in dubio are presumed for the condemnation of the Ship or if found do make out the same But what is that to the purpose here For primo The Deposition of the Skipper of the Ship called the Patientia bears That he had no Papers concealed but a Charter partie and a missive Letter eâ—go he having declared the same it was no Concealment And the sense of the Deposition is singly this That he had them a Ship-board and which he had hid upon the account of the Holland Capers these clearing that the Port designed was London and which did not appear from any of the Documents not concealed Secundo The Skippers deposition of the Palm-Treee bears only a Denyal that he had any Charter-parry but he acknowledged that he had a Brieff which is wronguously translated to be a Letter although it is true that he had such a missive Letter And Brieffs in the general comprehend all Papers And the Paper found a Ship-aboard was not a Charter-party which is a Contract subscribed by two viz. the Skipper and the Freighter but onely a simple Obligement for payment of the Freight so that this was no Concealment And this was likewise hid for fear of Dutch Capers and it is against sense to pretend the contrary And it were a rare piece of Juâ—tice to condemn Ships upon those Papers which are the Documents of their freedom And there was 〈◊〉 he Case of any Ships where there was so clear a Probation addâ—ced as to all Pâ—â—â—â—◠〈…〉 â—mission And Capers should be ashamed to grasp after the Ships and Goods of 〈…〉 â—es and to make use of Pretences for that effect which are absurd and ridiculous