[1705/6/123]¹

Procedure: recommendation

Recommendation to her majesty in favour of Sir Thomas Kennedy and partners

Her majesty's high commissioner and the estates of parliament, having heard the petition of Sir Thomas Kennedy of Kirkhill and partners of the annexed excise from November 1691 to November 1696, humbly showing to them that where the petitioners were tacksmen of the annexed excise of two merks upon the boll of malt, brewed and vended within this kingdom, and of 6d upon the pint of brandy and strong waters made not of malt, and 3d upon the pint of aquavitae and strong waters made of malt for the space of five years from November 1691 to November 1696, which tack contains warrandice at all hands and which certainly was the strongest assurance the petitioners could desire that the subject of their tack should remain unprejudiced by any deed of the public, and much more, that their tack should continue uninterrupted or broken contrary to the public faith, which it implies or otherwise that all their damages should be certainly and fully repaired conforming to the law in all contracts of that nature. But notwithstanding of the said incontrovertible ground and principle the petitioners were prejudged, first by supervenient laws and then by an act of parliament, that down right broke their tack. The supervenient laws that they complain of are first the act of parliament of 1693 imposing an additional excise of 3d upon the pint of ale and beer for the space of twenty-three months from 1 June 1693 to 1 May 1695, which act did necessarily and exceedingly diminish the consumption of malt to the prejudice of the petitioners; for the method of this imposition upon the liquor being new and the additional burden great put the brewers in such disorder that many through the whole kingdom did cast up and intermit, or, if they continued to brew, it was in far less quantities, as is well known. Besides that, this intermission and giving order of the brewers was visibly occasioned by the contest where this additional burden should lodge, the customers and drinkers expecting still that the ale and beer should continue of the same goodness and at the former price, which many brewers, not being able to comply with, did actually desist. There was also another great incumbrance that did arise to the petitioner's prejudice from the subtacks that they had set for the most part of the kingdom, except Edinburgh and some few other parts, where the subtacksmen in several shires gave over and took instruments against the petitioners and raised process of liberation or eases upon the said supervenient law, as the subtacksmen of the shires of Fife, Aberdeen, Mearns² and Angus comprehending the town of Dundee, which process the lords, being unwilling to determine as concerning his majesty's revenue, the said subtacksmen applied to the parliament and obtained remits and thereby put the petitioners to double and excessive expenses. And as for the town of Edinburgh and other parts, that the petitioners retained in their own collection the damage occasioned by the said additional excise was very great as is evident by comparing their preceding surveys with those that were made after the said additional excise was imposed during the twenty-three months whereof the survey fell far short as the petitioners are ready instantly to instruct, albeit the malt was no dearer during that space than before. The petitioners might also inform his grace and their lordships how that they were the first that ever raised the annexed excise when set upon the malt only without any help from the land rent of the shires, and yet they can make it appear by the surveys of the shires of Roxburgh, Berwick and Wigtown that these shires produced little more than the half of their quotas laid on them by the act of parliament of 1663 during the standing of this additional excise, which is a clear demonstration how great a diminution this supervenient act did occasion to the subject of the petitioners' tack. Their tack was likewise burdened with prior particular tacks set below the quota, as that of the shire of Aberdeen which was set for £10,000 less and continued for the first year of the petitioners' tack, which they grant they undertook in prospect of advantage in the succeeding years, but were deprived thereof by the said supervenient act of the additional excise and by breaking of their tack in manner after-mentioned. Secondly, the petitioners are also prejudged by another supervenient act passed in parliament in the year [...] whereby it is statute that, for bygones as well as in time coming, the imposition upon brandy and strong waters should only be exacted from retailers in pints and lesser quantities, whereas by former acts the least cask of brandy allowed to be imported was half a hogshead and whoever sold in lesser quantities was reckoned a retailer, as was found by several decreets of exchequer upon the faith whereof the petitioners became tacksmen, whereas now all that buy brandy or strong waters in any quantity above a pint are clearly liberated, so that the excise of these liquors became not worth the collection, and the process the petitioners had for great sums of that excise depending before the exchequer are by the retrospect of this last act of parliament fallen to the enormous harm and damage of the petitioners. It has been informed that the petitioners are considerable gainers, notwithstanding of these supervenient laws, but how is this possible when the duties of the subtack set by them do not amount to the quotas of the act of parliament and their tack duties do exceed these quotas greatly. And as for what remained to them in collection, they have offered to exhibit the books of their surveys, both before and after the additional excise, and all their desire is that their damages may be liquidated accordingly. They shall not urge his grace and their lordships that the petitioners took the said tack with a prospect of advantage, which so far as it truly and naturally arises from their tack is as much their right as any other part of their property. But that which they precisely insist upon is that their tack is their right which, being of a subject uncertain, they have fully as good a claim to any profit that might have arisen by it as they had certainly been made liable to the loss if the subject had come short, without any extraordinary accident, and consequently if any part of the subject of their tack be diminished or withheld by a supervenient law, it is evidently a prejudice to their tack, and an incurring of the warrandice of their damage ought justly to be considered as if it were a pure arising damage. And though public laws may be made for the support of the government, yet if these laws should plainly interfere with and prejudge private rights and contracts, the government is as much obliged to make good the same as any private party entering in the like contract. But in the next place, besides the diminution of the subject of the petitioners' tack which they suffered by these supervenient laws which ought to be made good to them, they have another ground of complaint beyond all exception namely, that in the parliament of 1695, when there was then a year and six months of their tack yet to run, the parliament thought good plainly and directly to break their tack by turning the annexed excise from the malt to the liquor and rescinding all tacks (whereof the petitioners was the only principal tack) of and concerning the said annexed excise upon malt, and declaring the same to be fallen in consequence of the dissolution there made. The petitioners are far from complaining as if the parliament had wronged them in this matter since they know perfectly that the parliament had never rescinded or taken away their tack and private right but with a full purpose to repair them and, therefore, they need say no more on this head, but sure their tack was broke by the sovereign pleasure of king and parliament and undoubtedly with a design to make up their loss and satisfy their private interest; the petitioners have no question but this high and honourable court will see it done the rather seeing what they humbly desire is obvious in law and natural reason that the public, who set the tack, should either have made it good or repair the damages, and that after a tack is set the subject of the tack cannot be altered nor the tack broken without mutual consent. And, therefore, craving his grace and honourable estates of parliament to consider the damages the petitioners have sustained, first by the said supervenient laws which is above £5,000 sterling as shall be instructed to a demonstration, and then by taking away of their tack by the foresaid act of parliament of 1695 while there was a year and six months of it still to run, which points being plain both in law and reason the petitioners are persuaded that the justice and equity of the sovereign court of parliament will find out and provide the proper and just remedies whereby the petitioners may be fully repaired, as the said petition bears. And her majesty's high commissioner and the estates of parliament, having this day fully considered the said petition and being therewith well and ripely advised, they recommended and hereby recommend the petitioners to her majesty to repair the damages sustained by them by reason of the supervenient acts of parliament mentioned in the petition in such way and manner as her majesty shall in her royal wisdom think fit. Extract.