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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B01310	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 Admiralty, anno 1672. Against Alexander Acheson captain of the frigat ... by which said ships were brought up, and the owners of the said frigat ... . 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 ... and divers other papers, related to in the decreets.	Scotland. Court of Session.	1682 (1682)	Wing A137; ESTC R222202	31,088	28

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 dur●nte ●●●●gate constituit officiosè obuixè a nobis petendo c. Est itaque c. De verb● 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 ● 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 ● 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-Dalle●● 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 D●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 Be●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 Mo●●●●●r l' Envoyé Extradinaire de Dennem●●● presenté le neufiesme Ma●●●●● LE Roy m'a commandé à v●●● 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 s●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

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 ●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

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 co●●e●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 Paper● 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 ●●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 Subj●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 e●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 Ju●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 add●ced as to all P●●●●● 〈…〉 ●mission And Capers should be ashamed to grasp after the Ships and Goods of 〈…〉 ●es and to make use of Pretences for that effect which are absurd and ridiculous