[1641/8/155]¹

Legislation: private act

Act in favour of [John Leslie], earl of Rothes, Andrew Ainslie etc. regarding Captain [David] Robertson's ship

The which day, regarding the supplication given in to the king's majesty and estates of parliament by John, earl of Rothes, Sir George Hamilton of Blackburn, Andrew Ainslie and George Arnott, merchant burgess of Edinburgh, for themselves and in name and on behalf of the other partners of the late Captain Robertson's ship, of the which supplication the tenor follows: To your sacred majesty, the honourable lords of the high court of parliament and other members thereof, humbly means and shows we your majesty's faithful subjects, John, earl of Rothes, Sir George Hamilton of Blackburn, Andrew Ainslie and George Arnott, burgess of Edinburgh, and in name and on behalf of the other partners of the late Captain David Robertson's ship, that whereas the time of the troubles between Britain, Spain and France, 1628, your majesty granted letters of mark to diverse of your subjects in England and Scotland, and in particular to the said late Captain David Robertson, who, being conjoined with two of your majesty's own ships, he as rear admiral did apprehend certain ships of Hamburg and Lübeck carrying ammunition and other forbidden goods, the said late David Robertson, his ship being a little spoiled in the combat, went to a harbour in Norway to supply and mend his ship; and he, having lain beside him in harbour a ship pertaining to Dunkirk which he had taken in prize, the master of the Dunkirk ship, having got ashore, he went eight miles distant from that place and agreed with the masters of two ships of Hamburg of very great force, promising them the half of the ship and the goods for rescuing the rest, and moved the said two Hamburg great ships, the one being 800 and the other being 400 tons, to come and invade the said late David's ship, they entering in a dangerous conflict for the space of two or three hours until many men were hurt and killed on every side and the ships very evil spoiled and hurt, ceasing at that time from the said combat they by treachery seized upon the said late David's person, and having both the far greater force and number of men spoiled the said David's ship by taking out the ordinance, whereof four pieces pertained to your majesty, took the sailors' clothes and the surgeon's chest and spoiled all their victuals, and most cruelly suffering the sailors to famish for hunger and many of them to die for want of cure, denying to give to any of them the use of their own chest, they unrigged the ship and so spoiled her that she was not worth the bringing away, and so was all utterly lost to the owners, they took your majesty's colours, trod on them, tore them and used contemptuous speeches. Your majesty's merchants, shipmasters and others trading in Norway were witness hereto, and because some of the witnesses had no certain dwelling places, being sailors, their depositions were taken before the court of the admiralty of England and Scotland, where they could be found occasionally, who did sufficiently clear and prove the robbery foresaid. Upon complaint hereof to your sacred majesty, one was sent by your majesty to the states of Hamburg, who, receiving no satisfaction, your majesty granted letters of reprisal to the said late Captain David Robertson and his partners, who equipped by virtue of the said letters of reprisal two ships at a very great charge and expense; which ships, apprehending certain ships and goods appertaining to Hamburg, brought them to Leith in this your majesty's kingdom, which were by your majesty's special command to the council of Scotland and your earnest desire signified to us, Captain Robertson's partners, again delivered to them the said ships and goods, your majesty being solicited thereto by diverse of our enemies who ware engaged to the Hamburgers, but upon this declaration: that we suiting justice before the state of Hamburg if they should either delay or deny justice, your majesty would see us, your wronged subjects, repaired either by causing us receive payment or receiving again of new letters of reprisal. But we, the said partners, having sent James Colville, a gentleman of good worth and knowledge, to follow that process at Hamburg, found but strange usage and great delays and was forced to constitute Master Joseph Everie, agent for your majesty at Hamburg, procurator, to follow that process, who, having now pursued the same these four years bygone, has in no way advanced in the said process, but altogether postponed and delayed. The judges, having certified that we must anew cite our adversaries to hear and see the former depositions taken over again, and have granted a long time both for the appearance of the witnesses and parties both before the admirals of England and Scotland, which course, if it be taken, the examinations and depositions at the advising of the cause may be accounted of no validity, albeit the witnesses be either departed this life or being sailors scattered through the world, that it be impossible to us to find them, for the witnesses whose depositions were taken in England were William Goffe and George Scott, and are yet alive, but it is impossible to get them bide at home to a peremptory day to the which Long and Uttenhold, their heirs and assignees, can be summoned to hear them sworn and testify. As to the witnesses received in the admiralty of Scotland, Allan Livingstone, George Grieve and Robert Dawling are all three departed this life, only [...] and Thomas Sandilands are alive, but by reason of their seafaring calling it is impossible for them to be at home at such a day to the which the Hamburgers may be cited. Now the testimony of those witnesses who are departed this life holds sure without control because 'the death of witnesses has the power of confirmation, because it does not appear true that a dying person would have left behind false witness'. And as to the depositions of those who are yet alive, they are craved to be reexamined upon this ground, namely: that the depositions of a witness is of no moment and of no faith 'when the party has not been summoned', but say they Long and Uttenhold were not summoned to the depositions either taken in the admiralties of England or Scotland. But your majesty will be pleased to consider that this rule does not hold in this present case, 'for a thing is removed from the rule of common law as often as the trial is delayed'; for an infirm and sick witness, an aged person, a man going in pilgrimage or long voyage, a sailor going to sea, a woman going with child near her delivery may, say the lawyers, be examined 'by the judge in competent part, either not cited for perpetual memory, or because it is plausibly feared concerning death of witnesses or a long absence, and all is allowed because of a necessity, except necessity caused by a sin'. Neither have the interrogators sent over from them prescribed the manner nor time of citing the Hamburgers to compear in this kingdom, and when they are summoned they will allege 'that they are not rashly to be summoned forth from Germany', and that the admiralty of Scotland has no authority to that effect, and that there has been already probators² used by the supplicants, reprobators³ used by the defenders and reprobators of those reprobators produced by the defenders, and so there can be no further used except by business without end, seeing the nature of the business craves a summary procedure and ought not to be protracted with lengthiness of a solemn process. Therefore, being thus delayed and frustrated of justice, we humbly beseech your majesty, the lords of this high court of parliament and other members thereof to take to your consideration this our humble supplication and the hard condition of a great number of your majesty's subjects, being above 12 parties, poor widows and fatherless children and other merchants who are so impoverished by their other frequent disbursements, the total of their loss and just claim exceeding the sum of £15,000 sterling, that being thus exhausted we are unable to lay out any more monies, and that your majesty would be pleased either to procure us reparation of our wrong proven in the admiral court of England and repayment of our loss proven in the admiralty of Scotland or otherwise that your majesty would be pleased again to grant us new letters of reprisal that we may be repaired of our grievous wrongs and heavy damages, and that this be summarily performed, otherwise we are overthrown and utterly ruined, as the foresaid supplication in the self purports. Which supplication being diverse times read in audience of the king's majesty and estates of parliament and duplicates thereof given to every separate estate to be advised therewith by the ordinance of the king and parliament, and thereafter the same supplication being of new again this day publicly read in open and plain parliament in audience of his majesty and estates thereof, and the desire of the same taken to consideration, the estates of parliament did advise his majesty to grant letters of reprisal in favour of the supplicants for themselves and in name and on behalf foresaid, and to cause complete the same letters of reprisal presently in the most ample and surest form under his highness's great seal, and being so completed and sealed, to testify the same to his highness's secret council to remain in their keeping to the effect that if his majesty does not procure reparation to the supplicants of their damage and loss according to justice the foresaid, letters of reprisal may be delivered by the council to the supplicants to make use thereof, according to the tenor of the same letters of reprisal. Likewise his majesty, at the desire and by the advice of the estates of parliament, did accordingly promise to grant the foresaid letters of reprisal, and thereafter to testify the same letters so accomplished under his highness's great seal to the council to the effect that if his majesty did not procure reparation to the supplicants of their said damage and loss according to justice as said is, the foresaid letters of reprisal may be delivered to the said supplicants for themselves and in name and on behalf foresaid to be made use of by them, according to the same letters of reprisal.