Act, 28 December 1703, Edinburgh

Edinburgh the Twenty fifth day of November One thousand seven hundred and thrie years

A1703/11/9

A1703/11/9¹

Act

Act Mr Patrick Ogilvie

Anent the Petition given in and presented to the Lords of her Majesties privy Councill by John Hyndman Marchant in Londondarie Shewing That wher the saids Lords petitioner in Company with some other Merchants in Derry² haveing sett up a trade of carieing Victuall thence to Norroway Which hath been the Custome of that place above twenty years past, and actually in Summer Last they sent four or five Shipps thither Loaded with meall Barley and malt and haveing also Loaded another vessell of twenty tunn with meall it fele out that before she was ready to sail the season was far past And therfore and Because of the danger by the French privateers they Resolved to Cary the ship and Cargo to Belfast wher meall was giveing thrie Shilling Sterling per boll more then at Dary And in caice they Should not make profitt of it their they were to Lay it up for a proper Season to cary it to Norroway In the voyadge from Derry to Belfast the petitioner was by a Stress of weather forced in upon Lamlash a port in Arron for Shelter and before that haveing discovered two privateers about a liague off to the Liewards of the Sound of Rachry and in the mean time the petitioner went over in a Boat to Newport Glasgow, to negotiat some privat affairs he hade in that Countrey (The wind being allwayes Contrair) and while he was their haveing ingeneously and oppenly told what hade befallen his Ship, He was called before the admirall of the west seas at the Instance of Crafurd of Jordanhill and his deputes who hade Commission from the saids Lords to make Seizure of Irish victuall etc And was ther most Strictly Interogate if he hade Loaded the said victuall for Scotland or if he had sold or offered to sale any part therof in this kingdome, as to all which he deponed negative upon his great oath as appears from the extract of his deposition therwith produced and for instructing the verity of his oath he produced his Cocquet from the Customehouse of Derry Signed by the Collector and Comptroller bearing that he had Loaded the said ship with oat meall, for Belfast and had given bond in the usuall maner for thrie hundred pounds Sterling to unload there, Wherupon Jordanhill and his deputes much against ther expectation were oblidged to acquit the petitioner as being nowayes guilty of the least breach of the Law; But the petitioner was no Sooner this acquit then Some dayes therafter he was informed in the way to his ship, That Captain Patrick Ogilvie had made a new Seizure which oblidged the petitioner to repair to him, and in stead of being allowed to cary his Ship to Belfast He was Compelled by the said Captain Patrick Ogilvie to cary his Ship and Cargo, and haveing ther acquainted him of his Cocquet and former deposition he Civilly told him that he would call togither two or thrie privy Councillors who Lived nearby and lay the caice before them as fitt persones to judge of it, and accordingly he brought the petitioner and the wholl Ships Crew before the Earle of Glasgow, Mr Francis Montgomry and Kilbirnie and the matter being Laid before their Lordships, What ever were their sentiments of the hardship the petitioner had mett with they gave no present remeedy But ordered the petitioner to attend the privy Councill promiseing that the first Councill day the petitioner should be heard and dispatched, The petitioner doeth therfore now in all humility offer this true and engenious Representation of his Circumstances to the saids Lords Consideration Wherby it would be evident that the petitioner hade acted nothing contrair to the Law of the kingdome that could inferr a seizure of his ship and Cargoe And that the petitioner hath documented his Innocence by the Ships Cocquet and his oun deposition which the wholl Crew were ready before the above named Lords to Confirme upon oath, So that the petitioners cryme Lyeth Singly in the Misfortune he hade to be beatt in by Stress of weather to the said port, and with all the saids Lords were humbly entreated to consider that his ship Carieing Seventy tunns, No man in his right Witts could propose to inload such a vessell privatly in Scotland in defraud of the Law, for She behoovet to be brought to ground in ane closs harbour, and could not be caried att without twenty or thriettie tuns of Belfast, Wheras it was well known that the most part of Irish victuall brought to Scotland was Imported by Scotsmen Liveing upon the Westerne Coasts and seldome above the quantitie of threttie or Fourty bolls at a time, which they Shutt into some small Creik and unload in the night And Therfore earnestly Beseeching and obtesting the saids Lords would take his Circumstances to Consideration and to Declair his Ship and Cargoe free, So as the petitioner might Cary her back to Belfast the port in the petitioners Cocquet, Which would be ane act of Justice to a Stranger and free the petitioner from the expence of Threttie or Fourty pound Sterling per Moneth as the present expenss of his Ship Especially Considering that if the petitioner were any longer detained the Charges would near exhaust all and inevitably ruin the petitioner and his numerous family; And if the saids Lords thought that his caice deserved any repairation of his Loss the petitioner Submitted himself intirely to what the saids Lords Should think just as the said petition bears In answer to which petition ther was ane Counter petition given in and presented to the saids Lords of privy Councill By Mr Patrick Ogilvie Mentioning That the said John Hyndman Merchant (as he designes himself) haveing brought a Ship of Seventy Tun or therby loaden with Irish meall to Lamlash in the Isle of Arran for Importing the said meall into Scotland Contrary to the acts of parliament he gives in ane petition to the saids Lords Containeing a long made up story for his own purgation and to free his Ship and Cargo from a seizure As to which the petitioner Craved Leave to Represent to the saids Lords that ther was nothing in the said petition take a made up Story which if received upon the petitioners faith might Cover the grossest abuses and as great ane Import of Irish victuall, as could possibly be designed, But to redarque the said Composed Story, The petitioner shall Shortly give the saids Lords the following undenyable arguments for the Seizur of his Cargo of meall and vessell as primo When she parted from Londonderry the ouners of the vessell took a bond from the Master that if he did not bring back the vessell safely from Scotland he should pay him thrie hundred pounds Sterling Secundo two Scots boats being in Ireland at the time that this vessell was Loaded could testifie that they heard the vessell was Loaded for Scotland Tertio they could farder declare that they came along with her and that ther was neither Storme nor Stress that drove her to Lamlash Quarto it could be proven by the Skippers oath that he agreed with his slaughters to give them his Ly-dayes at Lamlash Which was a Certain argument that ther he intended to unload Quinto some of the Crew could declare that they were hyred for to sail the vessell to Scotland and to return thence with Coalls from Clyd Sexto The vessell did Lye twenty dayes and upwards at Lamlash while Hyndman went to Greenock and Port Glasgow to find merchants for his meall Septimo the petitioner produces a letter from the provest of Stranraer wherin he informes that one Gay in Portglasgow told him that Mr Hyndman made offer to him for the seall of his meall Octavo Master Hyndman could not deny that while he Lay at Lamlash the wind did often slow fair, and yet he continued ther for above twenty dayes But Nono Because ther might be many practises used to steall in the said forbidden Import therfore by the act of parliament J^aj vj^c seventy two Allowance was given to Seize any of the saids vessells Importing the head of Kintyre and Lochryall or within the western Issles or any port Loch Creek or river from Loch Rayell to Dumfrees But so it was that the said vessell was watterborn within the saids bounds and Lay more then twenty dayes as said is Decimo Though the petitioner was exculpat by Jordanhill, yet it was Certaine that Jordanhill had intelligence of this vessells being in tended for Scotland a litle before the time that she was Seized, and wher the petitioner pretends the Improbability of the designe to bring in one thousand bolls of meall in a vessell of seventy Tuns It was answered the best Cover for designed transgressions was to make the maner of transgressing most Improbable and thus Mr Hyndman tells in his petition that the way of this unlawfull Import wes in use to be Manadged by small boatts that run ashoar and rush in to Creeks in the night time imperceived And therfore indeed it was that he could dsiguise his designe by a more bold practise of Bringing his vessell of Seventy Tunn with the forsaid quantitie of meall to Lamlash But it could not be denyed that by Litle boats and such as he might bargaine with the twenty dayes he lay ther he might more easily unload then in any Creek or harbour; as to the Story of his being diverted from Norway and therfore sailing from Derry to Belfast who could beleive that in the extraordinary Cheapnes and plenty of victuall that was at present over all Ireland, It should be worth a mans while to cary One thousand bolls of meall from Derry to Belfast, and the treuth is when the Crew were examined they answered so uncertainly some of them for Brill in Norroway and Some of them for Bristo that it was sufficient of it self to have her declared a seizure And therfore seing the seixure was made Conforme to Law in the forsaid Scots watters And that ther are so many Evidences of a designed Import and so litle or nothing that could be said for Hyndmans excuse It was Confidently expected That the saids Lords both for good example and terror in time comeing and for the just encouradgment of such as had been so vigillent to have the Lawes and the saids Lords Commission observed; would declare the seizure made to be Lawfull without any longer delay Especially Seing that all the while he Lay at Lamlash he never so much as called a waiter aboard, and that it could be ³ also proven that their he brock bulk and disposed upon part of the meall as the said Counter petition bears The Lords of her Majesties privy Councill haveing Considered the above petition given in to them by John Hyndman merchant of Londondary Togither with the above Counter petition by way of answer therto by Mr Patrick Ogilvie, and the Samen with a declaration under the hands of William Wardrope merchant in Glasgow As haveing Commission from Jordanhill and John Kelso admirall depute for the west-seas of ane oath given by the said John Hyndman before the said Admirall depute togither with the said John Hyndman his Cocquet from Londonderry to Belfast and the Samen being all read in ther presence And both parties called to the Barr, and their Lawiers heard theranent The Councill Finds and Declares That the Ship belonging to the said John Hyndman Loaden with meall and other prohibit goods from Ireland Lying at Lamlash a port in Arran betwixt the point of Kintyre and Lochryan watter born was a lawfull Seizure made by the said Mr Patrick Ogilvie Conforme to the thrid act of parliament J^aj vj^c Seventie two years And Finds the defence made at the bar by the said John Hyndmans advocat; That the said Shipp was by Stress of weather forced in upon Lamlash in her voyadge from Londonderry to Belfast taken off by the Reply made therto by Mr Patricks advocats, And acknowledged at the barr by the said John Hyndmans advocats Viz That the said shipp Contained in the said port Nyntein dayes most of which was fair weather And Therfore the saids Lords Refuse the desyre of John Hyndmans petition And Finds and Declares in maner forsaid Therafter ther was another petition given and presented to the saids Lords of her Majesties privy Councill By the said John Hyndman merchant in Londonderry Humbly Shewing That wher the said John Hyndman haveing upon the twenty sixth of August Last Loaded a vessell of seventy tuns with oat meall from Londonderry to Belfast in his voyadge thither he was forces into Lamlash upon the Coast of Arran by a Stress of Weather and Contrary winds, and haveing left his ship ther and gone to Newport Glasgow to negotiat some privat affairs, he was within twenty four hours Sumoned to Compear before the admirall depute of the Westseas at the Instance of Crafurd of Jordanhill and his Substitutes who had Commission from the Lords of her Majesties privy Councill to make Seizure of all Irish victuall Imported to this kingdome to answer to a lybell or Complaint at their instance against him; Mentioning that he hade brought his said Ship with oat Meall to Lamlash and that he had either brocken bulk or offered the victuall to Sale all which being referred to his oath He deponed negative as to the breaking of Bulk or offering to sell But acknowledged that as he was in his voyadge from Londonderry to Belfast with the said ship and Cargoe He was forced in by Stress of weather to the said port Wherupon the Admirall depute And assoylie and acquit him from the Complaint and indytment as appears by ane extract of his deposition and a testificat under the hand of the Admirall and a testificat under the hand of the Admirall Clark Mr Hyndman Supposeing himself to be Secure, and that his case was both juratum et judicatum he did not think himself concerned to goe Immediatly off the place and haveing some necessary affairs And haveing given strict orders to all on board when he left the ship that they should not break bulk upon the highest perrill, He stayed eightein dayes at Greenock and as he was returning to his Ship to cary her to Belfast his intended port he gott nottice that she was again seized by master Patrick Ogilvie to whom the privy Councill hade given a Commission in place of Jordanhill, and accordingly his ship was carried from Lamlash to Saltcoats wher he did again appear before the Earle of Glasgow, Mr Francis Montgomrie and Kilbirny wher he and the whole Ships Crew were again ready to depone as formerly But this takeing no effect he gave in a Supplication to the Lord of her Majesties privy Councill Representing the above matter of fact, and the Misfortune that hade happened him, And his petition being advised The Lords Sustained the Seizure But allowed the petitioner to be heard upon his defence that he was forced in to the said port by Stress of Weather and accordingly being Called and his procurators heard, and the defence offered to be proven It was Contended for Captain Ogilvie that the defence was not Relevant in regard the petitioner hade Stayed Eighteen or Nyntein dayes upon the place Which was a renewing of his delinquencie, and did Sufficiently take of the defence; Albeit their were no probation of the time he hade stayed at Greenock yet he did according to the ingenuity he hade used all allong in this affair acknowledge from the Barr that he had stayed eightein dayes upon Some necessary affairs, Which he Condescended on, and he now acknowledges that he being Judge upon oath and accquitt as said is, he thought himself secure to have stayed much longer if his bussines hade requyred; Provideing allwayes that he had neither brocken bulk nor offered sale of his victuall and yet as he understands his defence was not sustained only Because of his Countenance at the said port for longer time than he might have gone away, Albeit the defence of his being forces into the said port as said is be what he Singly founds upon, yet he humbly conceived that the act of parliament Ratifieing the former acts, Dischargeing the Import of Irish victuall being twenty dayes and more after he sailled from Londondary, He neither could nor was oblidged to know of it, And as to any former proclamation by the Lords of privy Councill Discharging the Import, He neither did nor was oblidged to know them And their being ane act of parliament in the year J^aj vj^c Nyntie Six Incouradging the Import, It was at least a tolerable Ignorance in him albeit he had intended that Victuall for Scotland; Which he had already deponed he never did; And to which he would adhere if it were his Last words; and in fortification of all ther was come to his hands lately a Certificat from the Collector and Recorder of the City of Londondary That upon the twenty sixth of August Last ther was Shipped on board the John of that place a parcell of oatmeall for which Security was given of six hundred Threttie thrie pound Six Shilling eight pennies Sterling for the true landing of the said Meall at Belfast or some other port in the kingdome of Ireland, Mr Hyndman understands That the act of parliament Councill to grant Commissioner to fitt persones to seize all ships with prohibit goods that are watterborn in any Loch Creik or port betwixt the Mouth of Lochryan and the point of Kintyre was the only ground of Condemneing his ship and Cargo As to which he humbly Represents, That if the act of parliament J^aj vi^c Seventie two be extended according to these words Which are only mentioned towards the end of the act Wheras both the Narative and Statutary port relates to the Importing and Libering of victuall then it would necessarly follow, That non of her Majesties Subjects in the kingdome of Ireland could adventur to trade with the product of that kingdome to the English plantationes Because they are oblidged in that voyadge to sail throw St Georges Channell, And Therfore Humbly Craveing the saids Lords would be pleased to take the premisses to their Serious consideration, That some way might be proposed how the petitioners misfortune might be retrived So as his wife and numerous family of Small Childrein might not be reduced to povertie, Which inevitably would fall out by that unhappy Loss as the said petition bears The Lords of her Majesties privy Councill haveing Considered the above petition given in to them by the said John Hyndman and the seamen with ane testificat from the Collector and Recorded of Londondary being upon the thrid day of December J^aj vij^c and thrie Read in their presence The saids Lords doe hereby Refuse the desire of the said petition and Adheres to their former interloquitor, And Ordaines the decreet formerly prounced to be extracted.