[1641/8/155]¹

Legislation: private act

Act in favoures of the Erle of Rothes, Andro Ainslie etc. anente Capitane Robertsones shipe

The quhilk day, anente the supplicatione givine in to the kingis majestie and estates of parliament be Johne, erle of Rothes, Sir George Hammiltoune of Blaikburne, Androw Ainslie and George Arnote, merchandis burgess of Edinburghe, for themselfis and in name and behalfe of the remanent pairtneres of umquhill Capitane Robertsone his shipe, off the quhilke supplicatione the tennour falloweth: Unto your sacred majestie, the honorabill lordis of the heighe court of parliament and otheres memberes therof, humblie meanes and shawes wee your majesties faithfull subjectes Johne, erle of Rothes, Sir George Hammiltoune of Blaikeburne, Andro Ainslie and George Arnote, burgess of Edinburghe, and in name and behalfe of the remanent pairtneres of umquhill Capitane David Robertsone his shipe, that wheras the tyme of the troubles betuixte Britane, Spane and France, j^M vj^C tuentie eight yeires, your majestie granted lettires of mark to diverse of your subjectes in England and Scotland, and in particulare to the said umquhill Capitane David Robertsone, quho, being conjoynt with tuo of your majesties owne ships, he as reire admirall did apprehend certane shipes of Hamburghe and Lubecke carieing munitione and otheres forbiddine goodes, the said umquhill David Robertsone, his shipe being a litle spoyled in the combat, went to ane harbory in Norraway to supplie and mend his shipe; and he, haveing lyen besyd him in herbery ane shipe perteineing to Dunkirke whilke he had takine in pryese, the maisteres of the Dunkirkis shipe, haveing gottin a shore, he went aught myles distant from that place and agried with the maisteres of tuo shipes of Hamburghe of very great force, promising them the halfe of the shipe and the goodis for reskueing the rest, moved the saidis tuo Hamburgh great shipes, the one being aucht hundreth and the other being four hundreth tunes, to come and invade the said umquhill David his shipe, they entring in ane dangerous conflict for the space of tuo or thrie houres till many men were hurt and killit one everie syde and the shippes very evill spoyled and hurt, ceasing at that tyme from the said combate they by treachrie ceaseede upon the said umquhill David his persone, and haveing bothe the fare greater force and nomber of men spoyled the said David his shipe by taking out the ordinance, quhairof four piece perteent to your majestie, tooke the sailleres cloathes and the chirurgianes kist and spoyled all thair victuelles, and most cruellie suffering the sailleres to famishe for hunger and many of theme to die for faulte of cure, denying to give to any of theme the use of there owne kist, they disrigged the shipe and so spoyled hir that shoe was not worth the bringing away, and so wes alluterlie losit to the owneres, they tooke your majesties colloures, troode one them, rent them and used contemptuous speaches. Your majesties merchandis, shipmaisteres and otheres trading in Norway war witness heirto, and because some of the witness had no certane duelling places, being sailleres, ther depositiones ware takine before the court of the admirality of England and Scotland, where they could be fund occasionally, who did sufficientlie cleire and prove the robbrie foirsaid. Wpon complaint heirof to your sacred majestie, one was sent be your majestie wnto the states of Hamburghe, who, receiveing no satisfactione, your majestie granted lettires of reprysall to the said umquhill Capitane David Robertsone and his pairtneres, who outreeked be vertue of the saidis lettirs of reprysall tuo shippes at ane very great chairge and expenss; quhilks shippis, apprehending certane shipes and goodes apperteeneing to Hamburghe, brought them to Leith in this your majesties kingdome, quhilkis ware by your majesties speciall command to the counsell of Scotland and your earnest desyre signified to ws, Captane Robertsones pairtneres, againe delyverit to them the saidis ships and goodes, your majestie being solicited therto by diverse of our wnfreends who ware ingadged to the Hamburgeres, bot wpoun this declaratione: that we suting justice before the state of Hamburghe if they should either delay or deeny justice, your majestie would sie us, your wronged subjectes, repaired ather by causing us receive payment or receiveing againe of new letters of reprysell. Bot wee, the saidis pairtneres, haveing sent James Collvill, ane gentlemane of good woorth and knowledge, to fallowe that proces at Hamburghe, fund but strange usage and great delayes and wes forcit to constitut Maister Josephe Everie, agent for your majestie at Hamburghe, procuratour, to fallowe that proces, who, haveing now persued the samene thir foure yeeres bygane, hes nowayes advanced in the said proces, bot alltogidder postponed and delayed. The judges, haveing certified that we most de novo site our adversaries to heir and sie the former depositiones takene over agane, and hes granted ane long tyme both for the appeirance of the witness and pairties bothe before the admiralles of Ingland and Scotland, quhilke course, if it be takine, the examinationes and depositiones at the advysing of the cause may be accompted of no validitie, albeit the witness be either depairted this lyfe or being saillers scattered throw the world, that it be impossible to us to find them, for the witness whose depositiones war takine in Ingland wer Williame Goffe, George Scote, and are yit alyve, bot it is impossible to get them byd at home to ane peremptorie day to the quhilk Long and Uttenhold, there aires and assigneyes, can be summoned to heir them suorne and depone. As to the witness received in the admirality of Scotland, Allane Liveingstoune, George Grive and Robert Daulling are all three depairted this lyfe, only [...] and Thomas Sandilandis are alyve, bot be reasone of ther seafairing calling it is impossible for them to be at home at such a day to the whilke the Hamburgheres may be cited. Now the testimonie of these witness who are depairted this lyfe holdis sure without controlement because mors testium vim confirmationis habet quia non est verisimile morientem reliquisse falsum testimonium. And as to the depositiones of these who are yit alyve, they are craved to be reexamined upon this ground viz: that the depositiones of ane witnese is of no moment and of no faith parte non citata, but say they Longo and Utenhold were not sommondit to the depositiones ather takine in the admiralities of Ingland or Scotland. Bot your majestie will be pleased to consider that this reule doeth not hold in this present caise, nam a juris communis regula reciditur quoties periculum est in mora; for ane infirme and seeke witnes, ane aged persone, ane mane goeing in pillgramage or long voyage, ane sailler goeing to sea, ane weoman goeing with chyld neir hir delyverie may, sayes the laweres, be examined a judice in competente parte altera non citata ad perpetuam rei memoriam. Becaus probabiliter timetur de morte testium vell diuturna absentia et omnia licent propter necessitatem praeter peccatum. Nather hes the interrogatoures sent over fra them prescryved the maner nor tyme of citing the Hamburgeres to compeir in this kingdome, and when they are sommondit they will alledge quod non sunt temere evocandi extra Germaniam, and that the admirality of Scotland hes no authority to that effect, and that there hes bene alreadie probatoures usit be the supplicantes, reprobatouris usit be the defenderes and reprobatoures of these reprobatoures produceit be the defenderis, and so ther can be no farder usit nisi negotium in infinitum, seing the nature of the bussines craves a summare prosedure and aught not to be protracted with longsoumnes of ane solemne proces. Therfore, being thus delayed and frustrat of justice, wee humblie beseeke your majestie, the lordis of this heighe courte of parliament and otheres memberes therof to take wnto your consideracion this our humble supplicatione and the hard conditione of a great nomber of your majesties subjectes, being above tuelve pairties, poore widowes and fatherles childrene and others merchandis who ar so impoverished by there other frequent depursmentes, the totall of there looss and just clame exceeding the soume of fyfteene thousand pundis sterling, that being thuse exhausted we are wnable to lay out any more moneyes, and that your majestie would be pleased ather to procure us reparatione of our wrong proven in the admirall court of Ingland and repayment of our loiss provene in the admirality of Scotland or wtherwayes that your majestie would be pleased agane to grant us new lettires of reprysall that wee may be repaired of our grievous wronges and heavie damnages, and that this be summarlie performed, wtherwayes we are overthrowne and wtterlie ruined, as the foirsaid supplication in the selfe proportes. Quhilke supplicatione being diverse tymes red in audience of the kingis majestie and estates of parliament and doubls therof givine to everie severall estate to be advysit therwith be the ordinance of the king and parliament, and therefter the same supplicatione being of new againe this day publictlie red in oppen and plaine parliament in audience of his majestie and estates therof, and the desyre of the samene tane to consideracion, the estates of parliament did advyse his majestie to grant lettires of repryssall in favoures of the supplicantes for themselvs and in name and behalfe foirsaid, and to cause exped the samene lettires of repryssall presentlie in the most ample and surest forme wnder his hienes great seale, and being sua exped and sealed, to depone the samene to his hienes secreet counsell to remaine in thair keeping to the effect that if his majestie doe not procure reparatione to the supplicantes of ther damnage and loiss according to justice the foirsaidis, lettires of repryssall may be delyvered be the counsell to the supplicantes to make use therof, conforme to the tennour of the samene lettires of reprysall. Lykeas his majestie, at the desyre and be the advyse of the estates of parliament, did accordinglie promeis to grant the foirsaids lettirs of reprysell, and thereftir to depone the samene lettires sua expede wnder his hienes great seale to the counsell to the effect that if his majestie did not procure reparacion to the supplicantes of ther said damnage and loiss according to justice as said is, the foirsaides lettires of reprysell may be delyvered to the saidis supplicantes for themselffs and in name and behalfe foirsaid to be made use of be theme, conforme to the same lettires of repryssall.