Judicial Proceeding: protection to Captain Thomas Hay

The process of Captain Thomas Hay against his creditors called and, none compearing, a protection was granted to him until the next session of parliament inclusive, as follows.

Protection in favour of Captain Thomas Hay

Anent the petition given in and presented to his grace [John Hay], marquis of Tweeddale, her majesty's high commissioner, and the right honourable the estates of parliament, by Captain Thomas Hay, merchant in Edinburgh, showing that in June 1702 the ship called the Good Hope of Leith, whereof the petitioner was an owner, was seized by Captain Thomas Butler, commander of her majesty's ship the Wolchester and brought her in to Berwick upon pretence that she had 15,000 stand of arms on board and ammunition conforming, for the use of the disaffected party in parliament (as it was then termed). And the said Captain Butler, having transmitted an account of what he had done to [James Douglas], duke of Queensberry, her majesty's high commissioner at the time, Sir Gilbert Elliott, clerk of the privy council, was sent to Berwick to inquire in that matter, who both searched the ship and took the master's oath whether he had any arms or ammunition aboard the said ship who, having testified to the contrary, Sir Gilbert made report that Butler's information was false and groundless. The said Captain Butler, not being satisfied with having unjustly seized the said ship and diverted her voyage, found out a new pretence to detain her prisoner, alleging that she was bound for Salé in Barbary, an enemy's country, and that she carried contraband goods aboard of her. Some Jews in Amsterdam, who were freighters of the said ship, applied to the admiralty, the ship was declared to be no prize, and the goods were taken from aboard her without paying one farthing of freight, though the master protested he was willing to ply the voyage from which he was most unjustly diverted contrary to all law and reason. But so little regard was had to this protest that the collector of Berwick ordered the hatches to be forced open and dragged the master ashore. The petitioner and the other owners, being advertised of this barbarous procedure, it was found necessary that one should go to London to crave redress, and the petitioner being sent thither, after six months' attendance at the admiralty court, he at last procured sentence reprieving the said ship, as they term it, which cost him above £80 sterling, besides loss of time and neglect of business at home. The other owners, finding that they were to expect no advantage from the said ship, did expose her to roup, but there being so many encumbrances upon her and the petitioner being so deeply engaged, was forced to take her wholly to himself and accordingly, by the roup, she was declared to be the petitioners, who having carried carpenters, masters and others to take inspection of the said ship, they found that the whole tackling and other utensils were stolen away, and that which was left was rendered useless, so that the petitioner was obliged to fit and equip the said ship anew, and was also discerned by the lord mayor of Berwick to pay £32 sterling to a seaman for taking care of the said ship, though it can be proven that he was most part of that time prisoner there. As likewise, they were obliged to pay for their own provisions which they had violently plundered from them. The petitioner having answered all their demands, cleared off all debts and the ship being just ready to sail, there was a new order produced for seizing and arresting the said ship anew, and the petitioner, having no hopes of being redressed of his losses from England, he does with all humility apply himself to his grace and their lordships, beseeching them to consider the affront put upon our nation by Butler's unjust capture, which gave occasion to all the misfortunes that attended it. For firstly, the petitioner was thereby deprived of a beneficial freight hire which was to have been 2,800 guilders. Secondly, his other charges have been above £250 sterling which has fallen so very heavy upon the petitioner that it has run his whole affairs in disorder, put him from trading and forced him to betake himself to the sanctuary for his person. The petitioner also does further represent that there is £170 sterling of arrears owing him by the public. And therefore, craving his grace and their lordships to take the petitioner's hard circumstances to serious consideration and to fall on such methods for repairing his losses (in which the honour of the nation is concerned) as their justice and wisdom shall think fit and, in the meantime, to grant a protection for his person, there having scarce any case occurred which pleads more compassion and to which all his creditors except two have already consented, as the said petition bears. Which petition, being read in the presence of her majesty's high commissioner and the said estates of parliament upon the 23rd instant and they, having considered the same, they granted warrant to macers or messengers to cite the petitioner's creditors before the parliament on twenty-four hours' warning to the effect the petitioner might obtain protection, by virtue whereof James Gordon, messenger, on the 24th instant lawfully summoned, warned and charged Mr Hugh Somerville, writer to the signet, John Bell, merchant in Edinburgh, Robert Wilson, merchant there, Robert Blackwood, merchant and dean of guild of Edinburgh, Walter Chiesley, merchant there, Robert Stewart, dyer there, Mr Francis Grant, advocate, Uthred MacDougall, merchant in Edinburgh, Roger Hogg, merchant there, Charles Mitchell, writer there, Robert Hunter, elder, merchant there, for himself and in name and behalf of the company and masters of Paul's Work at the foot of Leith Wynd, Mr Duncan Willison, merchant there, Robert Marshall, merchant there, Gavin Thomson, writer there and Thomas Smith, brewer there, all of them creditors to the said Captain Thomas Hay, to have compeared before the said high commissioner and the said estates of parliament on this 25th instant to the effect above-mentioned, and made certification in manner expressed in the foresaid warrant and execution, and that by delivering to the said Robert Stewart, Robert Marshall and Gavin Thomson just and authentic copies personally apprehended and affixing and leaving the like, just and authentic copies for the said John Bell, Robert Wilson, Mr Hugh Somerville, Robert Blackwood, Walter Chiesley, Mr Francis Grant, Uthred MacDougall, Roger Hogg, Charles Mitchell, Robert Hunter, Mr Duncan Willison and Thomas Smith, at and upon the most patent doors of their respective dwelling houses and chambers in Edinburgh, after he had knocked six several knocks upon each of them, as use is, and intimated the same to their servants, because he could not apprehend themselves personally, as the said warrant and execution thereof also bear. Which process and action, being this day called in the presence of her majesty's high commissioner and the said estates of parliament, and the said whole defenders being called by a clerk and macers both in the parliament house and at the open gate of the same, as use is in the like cases, to have compeared therein and they having failed to compear, as was clearly understood to his grace her majesty's high commissioner and the said estates of parliament, and they having again considered the foresaid petition, warrant above-specified and execution thereof and being therewith and with the absence of the said defenders, well and ripely advised, her majesty's high commissioner and the said estates of parliament granted and hereby grant a protection to the said Captain Thomas Hay, petitioner, for security of his person against all diligence for civil debts due by him to his said creditors until the next session of parliament inclusive, declaring also, it is hereby declared that this protection shall not defend against any diligences for warranting, assignations and dispositions granted by the petitioner to any of his creditors. Extract.

  1. NAS. PA2/38, f.236v-238. Back