[1705/6/123]¹

Procedure: recommendation

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

Her majesties' high commissioner and the estates of parliament, haveing heard the petition of Sir Thomas Kennedy of Kirkhill and partners of the annexed excise from November, j^M vj^C and ninety one to November, j^M vj^C and ninety six, humbly shewing unto them that where the petitioners were tacksmen of the annexed excise of two merks upon the boll of malt, brown and vended within this kingdom, and of six pence upon the pint of brandie and strong waters made not of malt, and three pence upon the pint of aquavitae and strong waters made of malt for the space of five years from November, j^M vj^C and ninety one to November, j^M vj^C and ninety six, which tack contains warrandice at all hands and which certainly was the strongest assureance the petitioners could desire that the subject of their tack should remain unprejudged by any deed of the publick, and much more, that their tack should continue uninterrupted or broke contrary to the publick faith, which it implyes or otherwayes that all their damnages should be certainly and fully repaired conform to the law in all contracts of that nature. But notwithstanding of the said incontroverted 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 j^M vj^C and ninety three imposeing an additional excise of three pennies upon the pint of ale and beer for the space of twenty three moneths from the first of June, j^M vj^C and ninety three to the first of May, j^M vj^C and ninety five, which act did necessarly 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 brewars 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 notourly known. Besides that, this intermission and giveing order of the brewars 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 brewars, 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 Fyfe, Aberdeen, Merns and Angus comprehending the toun of Dundee, which process the lords, being unwilling to determine as concerning his majesties' revenue, the said subtacksmen applyed to the parliament and obtained remits and thereby put the petitioners to double and excessive expences. And as for the toun of Edinburgh and other parts, that the petitioners retained in their own collection the damnage occasioned by the said additional excise was very great as is evident by comparing their preceeding surveyes with those that were made after the said additional excise was imposed dureing the twenty three moneths whereof the survey fell far short as the petitioners are ready instantly to instruct, albeit the malt was no dearer dureing 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 surveyes of the shires of Roxburgh, Berwick and Wigtoun that these shires produced little more than the half of their quotas laid on them by the act of parliament j^M vj^C and sixty three dureing 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 likewayes burdened with prior particular tacks set below the quota, as that of the shire of Aberdeen which was set for ten thousand pounds 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 aftermentioned. Secondly, the petitioners are also prejudged by another supervenient act past in parliament in the year [...] whereby it is statute that, for bygones as well as in time comeing, 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 who ever sold in lesser quantities was reckoned a retailler, 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 liberat, 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 enorm lesion and damnage of the petitioners. It hath 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 exhibite the books of their surveys, both before and after the additional excise, and all their desire is that their damnages may be liquidat 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 truely 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 claime to any profite that might have arisen by it as they had certainly been made lyable 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 damnage ought justly to be considered as if it were a pure damnum emergens. And tho publick laws may be made for the support of the government, yet if these laws should plainly interfere with and prejudge privat rights and contracts, the government is as much oblidged to make good the same as any privat 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, viz. That in the parliament j^M vj^C and ninety five, when there was then a year and six moneths 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 consequentiam 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 privat 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 satisfie their privat 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 publick, who set the tack, should either have made it good or repair the damnages, and that after a tack is set the subject of the tack cannot be altered nor the tack broken without mutual consent. And, therfore, craveing his grace and honourable estates of parliament to consider the damnages the petitioners have sustained, first by the said supervenient laws which is above five thousand pounds sterling as shall be instructed to a demonstration, and then by takeing away of their tack by the foresaid act of parliament j^M vj^C and ninety five while there was a year and six moneths of it still to run, which points being plain both in law and reason the petioners 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 majesties' high commissioner and the estates of parliament, haveing this day fully considered the said petition and being therewith well and ripely advised, they recommended and hereby recommend the petitioners to her majestie to repair the damnages sustained by them by reason of the supervenient acts of parliament mentioned in the petition in such way and manner as her majestie shall in her royal wisdom think fit. Extract.