Act, 21 December 1704, Edinburgh

Procedure, 19 December 1704, Edinburgh

Att Edinburgh the Tuenty one day of December Jaj vijc and four years

A1704/12/311

Act

Act Infavours off Robert Howie

Anent the petition given in and presented to the Lords of Her Majesties privie Councill By Livetennent Collonell Patrick Ogilvie Humbly Sheweth That where in the prosecution of the trust reposed by their Lordships in the petitioner Anent keeping out of Irish victuall Beeff horses and Cattle, The petitioner hes instantly made seizure of one boat belonging to one […] Pottar in Greenock Wherein there was Fourty six bolls of meall and groats five barrells of beeff Ane Hundered and Eighty Small Firkins of butter and Twenty four Cheeses, The petitioner did instantly upon the said Capture burn the bottome In what the saids Conterband goods were imported, and have put all the goods in Custody and under guard, There is noe person appears to own the beeff or meall But there is one […] Howie ane Irish man own’s the butter and Cheese as his and pretends that the same ought not to be lyable to a seizure As to which the petitioner humbly begs leave to represent to their Lordships That boeth by the Law of this and all other nationes All ships and haill goods found therin are confiscat where any Counterband goods are found and more particularly By the 3d Act of the 3d Session, 2d parliament King Charles 2d Anent importation of Irish victuall It is declaired and Enacted That the vessell and goods imported with Irish victuall whither by strangers or natives shall be confiscat two parts to his Majestie and the thrid pairt to the seazer. The petitioner was at very considerable pains and Expensses in the discovery and apprehending of the said Bark and Cargo, And if the said butter and Cheese should not be Decerned as seizure Conforme to the standing Laws of the Kingdome Their Lordships Commission to the petitioner will be rendered altogither ineffectuall and the Kingdome ruined For by giveing such ane allowance, It would become a daily practise to import in a bottome the one halfe of prohibit goods covered with the other which are not prohibit and if the importers should get away with the whole Cargo they are wast gainers, and the one halfe should only be seized, the advantage made upon the other would make the loss very inconsiderable or non at all. And Therefore craveing their Lordships To take the premises to their consideration and to determine this matter soe as the petitioner may be encurraged to follow furth their Commission with faithfulness and Exactness and that such persons who study the ruine of the Nation may be detterred from following such trade and practice As the said petition Bears. Which petition being upon the Nynthteen day of December instant Read in presence of the saids Lords They appointed the samen to be seen and answered by any person concerned against nixt Council day. According to which Robert Howie merchant in Ireland and now prisoner in the Tolbooth of Edinburgh Gave in a petition By way of answer Shewing That where Livd Collonell Ogilvie haveing seized a bark belonging to one Potter of Greenock wherin was some bolls of meall and grots, five barrells of beeff, one hundered and Eighty Firkins of butter and Twenty four cheeses, he gave in a petition to the saids Lords, Craveing that the whole Cargo, the mostly consisting of goods under noe prohibition might be confiscat, that so his pairt of the seizure might be the more considerable, pretending what he desired to be conforme to the Laws of this and other Kingdoms in the lyke cases, particularly to the 3d Act 3 Session 2 parliament of King Charles, the second, anent Importation of Irish Victuall, besides some other groundless arguments which are not heir inserted. To which it is humbly answered, that the confiscation of goods imported, against a prohibition can never be extended to goods not prohibit, meerly because in the same bottome with the Counter-band goods, for utile per inutile vitialur, Besides it would be in the power of any man to ruine those that imploy him by thiftuously putting on board the shipe any quantitie of prohibit goods. Secundo, When the petitioner fraughted apairt of the Bank for Scotland, he knew nothing of there being meall or any other prohibet goods on board the said Bark, neither was he on board till he came in order to saill, soe that he was wholly in bona fide, never imagining that men would be so mad as to run the hazerd of being ruined for the bare prospect of so pitiful a return as a whole loading of meall could afford, for less fyfteen bolls which was the whole quantity on board the bark, as the master and whole Crew now here in prison are ready to depone; From which it is evident that the petitioners putting his butter and Cheese on board of the said Pottars Bark where the forsaid quantity of meat was, was wholy his misfortune and nowayes his fault. Tertio as to what the Livet Collonell suggests, that if the petitioners butter and Cheese which is the only pairt of the Cargo he is concerned in be not lykewayes confiscat, his Commission would be of noen effect concludes no more then his Encuragement to be dilligent will be lessned, and thereby some transgressours shall happen to Escape and for covering of Counter-band goods with other Laufull goods it is but a meer pretext; For since shipes are ordered to report and liverat their respective ports It can hardly be imagined, how they shall be able to conceal the halfe; yea perhaps the most pairt of their Cargo, Especiallie seeing that at all ports there are men appointed for the preventing of such abuses. As to the 3d act of the 3d Session of the 2d parliament of King Charles the 2d, It imports noe more then the confiscation of the shipe and goods prohibet, Viz The victwal therin mentioned, but cannot be extended to the Confiscation of other Laufull goods in the said shipe, as the whole tennor of the Acts Declares; Nor was it ever heard that the confiscation of the shipe and goods therin prohibet was extended to other Laufull goods that might be found therin, unless the same were expressly by Law provyded as was done in the late acts, prohibiting the Importation of Irish Cloaths and silks etc And Therefore humbly Craveing their Lordships seriously to consider the case of the petitioner being a stranger And ordaine Livet Collonell Ogilvie to delyver up to the petitioner the butter and Cheese In respect of the reasons above represented and more Especially that as there is noe ground for the pretended confiscation of this Laufull goods; soe their Lordships are no wayes in use to Judge of Confiscation, particularly by way of Summar petition; And that the ptitioner is content To find Caution upon the redelyvery of the butter and Cheese to the petitioner To make the samen or value thereof (It being a perishable Commodity) furth comeing as Law will, and thereupon to order the petitioner to be liberat from his Imprisonment in the Tolbooth of Edinburgh where the petitioner is now prisoner As the said petition by way of answers bears. And upon the day and date of thir presents The said petition being againe read. The Lords of Her Majestie’s privie Council Have considered the petition given in to them By Livet Collonel Patrick Ogilvie Which another petition given in by way of answer therto By Robert Howie merchant in Ireland, and the samen being read in there presence. The saids Lords Doe heirby Give order and warrant to the Magistrats of Edinburgh and keepers of their Tolbooth To sett the said Robert Howie at Liberty furth thereof Upon his giveing Bond and finding sufficient Caution acted in the books of privie Council To appear before their Lordships when called under the penaltie of Three Hundered merks scots money And Appoints the said Livet Collonell Ogilvie To raise a Lybell upon the grounds represented in his petition) against the said Robert Howie betuixt and Tuesday nixt.

Att Edinburgh the Tuenty one day of December Jaj vijc and four years

A1704/12/311

Act

Act Infavours off Robert Howie

Anent the petition given in and presented to the Lords of Her Majesties privie Councill By Livetennent Collonell Patrick Ogilvie Humbly Sheweth That where in the prosecution of the trust reposed by their Lordships in the petitioner Anent keeping out of Irish victuall Beeff horses and Cattle, The petitioner hes instantly made seizure of one boat belonging to one […] Pottar in Greenock Wherein there was Fourty six bolls of meall and groats five barrells of beeff Ane Hundered and Eighty Small Firkins of butter and Twenty four Cheeses, The petitioner did instantly upon the said Capture burn the bottome In what the saids Conterband goods were imported, and have put all the goods in Custody and under guard, There is noe person appears to own the beeff or meall But there is one […] Howie ane Irish man own’s the butter and Cheese as his and pretends that the same ought not to be lyable to a seizure As to which the petitioner humbly begs leave to represent to their Lordships That boeth by the Law of this and all other nationes All ships and haill goods found therin are confiscat where any Counterband goods are found and more particularly By the 3d Act of the 3d Session, 2d parliament King Charles 2d Anent importation of Irish victuall It is declaired and Enacted That the vessell and goods imported with Irish victuall whither by strangers or natives shall be confiscat two parts to his Majestie and the thrid pairt to the seazer. The petitioner was at very considerable pains and Expensses in the discovery and apprehending of the said Bark and Cargo, And if the said butter and Cheese should not be Decerned as seizure Conforme to the standing Laws of the Kingdome Their Lordships Commission to the petitioner will be rendered altogither ineffectuall and the Kingdome ruined For by giveing such ane allowance, It would become a daily practise to import in a bottome the one halfe of prohibit goods covered with the other which are not prohibit and if the importers should get away with the whole Cargo they are wast gainers, and the one halfe should only be seized, the advantage made upon the other would make the loss very inconsiderable or non at all. And Therefore craveing their Lordships To take the premises to their consideration and to determine this matter soe as the petitioner may be encurraged to follow furth their Commission with faithfulness and Exactness and that such persons who study the ruine of the Nation may be detterred from following such trade and practice As the said petition Bears. Which petition being upon the Nynthteen day of December instant Read in presence of the saids Lords They appointed the samen to be seen and answered by any person concerned against nixt Council day. According to which Robert Howie merchant in Ireland and now prisoner in the Tolbooth of Edinburgh Gave in a petition By way of answer Shewing That where Livd Collonell Ogilvie haveing seized a bark belonging to one Potter of Greenock wherin was some bolls of meall and grots, five barrells of beeff, one hundered and Eighty Firkins of butter and Twenty four cheeses, he gave in a petition to the saids Lords, Craveing that the whole Cargo, the mostly consisting of goods under noe prohibition might be confiscat, that so his pairt of the seizure might be the more considerable, pretending what he desired to be conforme to the Laws of this and other Kingdoms in the lyke cases, particularly to the 3d Act 3 Session 2 parliament of King Charles, the second, anent Importation of Irish Victuall, besides some other groundless arguments which are not heir inserted. To which it is humbly answered, that the confiscation of goods imported, against a prohibition can never be extended to goods not prohibit, meerly because in the same bottome with the Counter-band goods, for utile per inutile vitialur, Besides it would be in the power of any man to ruine those that imploy him by thiftuously putting on board the shipe any quantitie of prohibit goods. Secundo, When the petitioner fraughted apairt of the Bank for Scotland, he knew nothing of there being meall or any other prohibet goods on board the said Bark, neither was he on board till he came in order to saill, soe that he was wholly in bona fide, never imagining that men would be so mad as to run the hazerd of being ruined for the bare prospect of so pitiful a return as a whole loading of meall could afford, for less fyfteen bolls which was the whole quantity on board the bark, as the master and whole Crew now here in prison are ready to depone; From which it is evident that the petitioners putting his butter and Cheese on board of the said Pottars Bark where the forsaid quantity of meat was, was wholy his misfortune and nowayes his fault. Tertio as to what the Livet Collonell suggests, that if the petitioners butter and Cheese which is the only pairt of the Cargo he is concerned in be not lykewayes confiscat, his Commission would be of noen effect concludes no more then his Encuragement to be dilligent will be lessned, and thereby some transgressours shall happen to Escape and for covering of Counter-band goods with other Laufull goods it is but a meer pretext; For since shipes are ordered to report and liverat their respective ports It can hardly be imagined, how they shall be able to conceal the halfe; yea perhaps the most pairt of their Cargo, Especiallie seeing that at all ports there are men appointed for the preventing of such abuses. As to the 3d act of the 3d Session of the 2d parliament of King Charles the 2d, It imports noe more then the confiscation of the shipe and goods prohibet, Viz The victwal therin mentioned, but cannot be extended to the Confiscation of other Laufull goods in the said shipe, as the whole tennor of the Acts Declares; Nor was it ever heard that the confiscation of the shipe and goods therin prohibet was extended to other Laufull goods that might be found therin, unless the same were expressly by Law provyded as was done in the late acts, prohibiting the Importation of Irish Cloaths and silks etc And Therefore humbly Craveing their Lordships seriously to consider the case of the petitioner being a stranger And ordaine Livet Collonell Ogilvie to delyver up to the petitioner the butter and Cheese In respect of the reasons above represented and more Especially that as there is noe ground for the pretended confiscation of this Laufull goods; soe their Lordships are no wayes in use to Judge of Confiscation, particularly by way of Summar petition; And that the ptitioner is content To find Caution upon the redelyvery of the butter and Cheese to the petitioner To make the samen or value thereof (It being a perishable Commodity) furth comeing as Law will, and thereupon to order the petitioner to be liberat from his Imprisonment in the Tolbooth of Edinburgh where the petitioner is now prisoner As the said petition by way of answers bears. And upon the day and date of thir presents The said petition being againe read. The Lords of Her Majestie’s privie Council Have considered the petition given in to them By Livet Collonel Patrick Ogilvie Which another petition given in by way of answer therto By Robert Howie merchant in Ireland, and the samen being read in there presence. The saids Lords Doe heirby Give order and warrant to the Magistrats of Edinburgh and keepers of their Tolbooth To sett the said Robert Howie at Liberty furth thereof Upon his giveing Bond and finding sufficient Caution acted in the books of privie Council To appear before their Lordships when called under the penaltie of Three Hundered merks scots money And Appoints the said Livet Collonell Ogilvie To raise a Lybell upon the grounds represented in his petition) against the said Robert Howie betuixt and Tuesday nixt.

1. NRS, PC1/53, 321-3.

1. NRS, PC1/53, 321-3.