Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the threttein day of August J^aj vi^c nyntie Six yeirs postmeridiem

D1696/8/12

D1696/8/12¹

Decreet

Decreit in the process betuixt Commissioners of Aberdeen Shyre and Martin of Burntbrae

Anent the petitione given in to The Lords of his majesties privie Counsell Be Robert Martine of Bruntbrae Subtackseman of the additionall excyse of their pennies on the pint imposed be act of parliament J^aj vi^c nyntie thrie yeirs within the Shyre and towne of Aberdeen Shewing That wher the petitioner haveing endgadged himself as subtackseman of the said additionall excyse within the towne and Shyre of Aberdeen for payment of the Soume of Fourtie one Thowsand five Hundereth and twentie eight pund Scotts money for twentie thrie moneths space And that he entered into the said tack upon the faith of the third act fourth Sessione of this present parliament wherby the said additionall excyse at the rate of thrie pennies on the pint therby imposed was by all Judiciows men at the tyme of the imposeing therof Judged to be nothing Short of two merks upon the boll And that experience in exacting the Samen over all other places in the kingdome hes confirmed the Samen so by the Late act twentie eight Sessione fourth of this current parliament Suppressing the annexed excyse at two merks per boll the saids thrie pennies on the pint was established and annexed to the crowne as ane Suteable recompense for the said two merks per boll (the exacting at that rate by the liqwor amownting manifestly to more then the old two merks per boll did aryse to) And also upon assureance that the Commissioners of excyse as publict ministers in the government would allow all collecters and tacksemen the benefite of the method prescribed by the Law imposeing the said additionall excyse in reference to the maner of exacting and uplifting the Samen as is mentioned in the act fourtein J^aj vi^c Sixtie ane By disproveing of entries to be made by the brewers and fyneing them to double the valwe of the malt concealled and not entered And in caice of the brewars contumacy in not makeing entries at all in allowing the tacksemen clames against them conforme to the constant practicq of the natione And ther Lordships proclamatione to that purpose in December J^aj vi^c nyntie thrie Wherby the petitioner was indwced to enter into a Subtack of the Said excyse upon termes als reasoneable as other Subtacksemen in the Kingdome yet nevertheles among the other discouradgements the petitioner hes mett with in makeing the Said excyse effectwall it hes so fallen owt that by the illegall courses taken by and maleadministratione of the Commissioners of excyse in the said Shyre of Aberdeen who are of the governements nominatione that he the said Robert Martine hes not only fallen Short of Four Thousand thrie hundereth pund Scotts of tack Dwety by and attour his expensses which were exceedingly increased by the brewers contumacy occasioned throw the Commissioners oppositione to him) But also of what moderat profite he might have expected and of the which maleadministratione the petitioner humbly offerrs the following Stepps to ther Lordships consideratione primo that the saids Commissioners did upon the twentie Sixth of Jullie J^aj vi^c and nyntie thrie by a printed act of ther Sederunt have upon them in direct termes to invert the said act of parliament imposeing the thrie penies of additionall excyse upon the liqwor in so far as they most wnwarrantably declaire the meaneing of the act of parliament anent exacting thrie pennies of the pint by the liqwor to have bein that the said additionall excyse Should be exacted with respect to the graine at the rate of a fourth pairt Short of two merks per boll as if the meaneing of the act of parliament anent exacting thrie pennies of the pint had bein bwt thrie fourth pairts of two merks Should be exacted but for the boll at which rate the petitioner was most unjustly cwtt off from no less then a full fourth pairt of the said whole additionall excyse which was in reiveritate and is now by act of parliament establishing the Same in place of the two merks per boll found everie way suiteable and proportionable to the said two merks Soe that the Commissioners did illegallie in takeing on them to putt Such a misinterpretation on the Law to the petitioner and the Governements Damnadge as a foirsaid Secundo albeit the Commissioners by the said act of Sederunt Seemed to remitt the foirsaid mater anent the meaneing of the said act of parliament to the privie Counsells consideratione yet they have never to this houre made applicatione to their Lordships for ane interpretatione of the said act Wherthrow dureing this dependance the brewers were imboldned to treat the petitioner as they pleased But all this was exactly callcullat to favoure one George Mckeinzie the tackseman of the old annexed excyse who allwayes had the brewers under tack whill the petitioner was yet but entering upon his office as tackseman of the additionall excyse and as ane evidence therof he the said tackseman of the annexed excyse does upon the foot of the saids Commissioners printed act print Likewise a most full and illegall advertisement to all the brewers Mentioning that the petitioner was goeing about to oppress them by proposeing the exactione of the additionall excyse conforme to the liqwor or malt at his pleasure whill the Commissioners of the said Shyre did give ther opinion that the meaneing of the Law was to exact the Same at the rate of tuentie Shilling on the boll only And therfore advertiseing the brewers not to be imposed upon inpaying the additionall excyse conforme to the liqwor or malt and that they Should not soe much as give up entries or accompts of ther brewing to the petitioner otherwayes then according to ther knowledge assureing them that if the petitioner proceeded by legall dilligence against the saids brewers without express orders from the saids Commissioners efter examinatione of maters the Commissioners would pwnish him as ane oppressor And both which acts viz the Commissioners act of Sederwnt and tackseman of the annexed excyse his Said advertisement haveing bein printed and published in all the paroch churches of the Shyre efter Sermon did Soe farr animat the brewers against the petitioners that they became wtterly contwmaceows in everie point Tertio the petitioner haveing applyed and attended in the moneth of September the said yeir at the places appointed in each presbetrie for the brewers to come and give up ther entries And upon their faillieing so to doe efter due intimatione the petitioner had therby a Jws qwesitwm and ane wndoubted right to all the certificationes in Law and constant customes allowed against contwmaciows brewers for the act imposeing the additionall excyse allows of all the methods and compullsitors formerlie appointed for makeing the excyse effectwall Nevertheles the Saids Commissioners at the next meeting in october therefter by ther other act did at ther own hand Discharge all nonentries whatsomever and penalties incurred therthrow by the brewers as will appear by the acts of the Sederwnt therto takeing away the certificatione of the Law without the benefite wherof it was not possible for the petitioner (nor ever Shall be for any tacksemen) to make the excyse effectwall which did so much the furder encourage the saids brewers in ther obstinacie that near five moneths tyme elapsed befor the petitioner could recover So much as ane Sixpence of the said additionall excyse and against which act Some of the Commissioners ther own number did enter ther protestation as illegall and wnwarrantable Throw all which Stepps of the Commissioners ther proceedings the petitioner damnadge and Loss as afoirsaid is nothing Less then Eight thousand punds Scotts as appears by the accompts therwith given in of the Last farthing he intrometted with upon his wttmost dilligence And wheranent he is content to Subject himself to the most narrow and exact tryell of the saids Commissioners themselvs or any other ther Lordships Shall appoint And altho ther be as yet Severall deficients among the brewers throw the discouradgement the petitioner hes mett with it will be wtterlie impossible for him to recover payment therof without the concourse of awthoritie And Seing from what is above said it is evident that this callamatie hes happened to the petitioner by publict ministers in the government and is a palpable vis major upon the petitioner And considering that ther Lordships are in wse upon emergencie of Such publict occasiones of Loss to take the damnified caise of the Skathed tacksemen into ther consideratione and appoint Such methods for ther ease as the merits of the cause reqwyres And ther haveing few caices happened wherin the tacksemens conditione pleads more favour then this And therfor humbly craveing ther Lordships would be pleased to take tryell anent the petitioners intromissiones And that by remitting his accompts therwith given in to the very Commissioners of the Shyres themselvs to be examined by them and reported against a certaine day or by what other maner of way ther Lordships thinks fitt that the petitioners great Skaith and Damnadge being liqwidat and knowen ther Lordships may allow him ane ease proportionable therto and in the meantyme Sist executione against the petitioner upon his paying in to the tackseman what neat money he hes receaved upon accompt of the said additionall excyse And that ay and whill ther Lordships report anent the petitioners accompts his Loss appear as said is And Sicklyke that ther Lordships would be pleased to appoint a collector for inrbinging the deficiency of the said additionall excyse that yet Stands owt with a recomendatione to the Commissioners of the Shyre to be more assisting to him then they have bein to the petitioner As the said petitione bears And Sicklyke anent the lybell or complaint raised and persued befor the saids Lords of his majesties privie Counsell at the instance of Andrew Frazer of Killmundie Shirreff depute of Aberdeen Sir John Forbes of Craigybarr James Moir of Stonywood James Gordoune of Seatone George Keith of Creuchie George Paton of Grandhome John Skeen younger of Dyce and Mr Robert Forbes Advocat for themselvs and in name and behalf of the remanent Comissioners of Supply and excyse of the Shyre of Aberdeen with concourse of Sir James Stewart his majesties advocat for his highnes interest in the mater wnderwrittin Makeing Mentione that wher the Slandering reproaching and falselie accwseing of any persones intrwsted by ws with the manadgement of any pairt of the publict revenwe and the murmureing and falsely accwseing of persones appointed Judges by ws and the estates of parliament in the executione of ther offices especiallie by false and callummows complaints to the Lords of our privie Counsell As also the comowne and habitwall oppressione of our Leidges under the pretence and colloure of levyeing and raiseing any pairt of our revenwe And for the more arbitrary exerceing and Comitting of the said oppressione the perverting or misinterpreting Severall Lawes and acts of parliament appointing the maner of Levying our revenwe and for better covering and carrying on arbitrary and illegall exactiones the qwartering pairties upon our Leidges with out any order of Law or the directione of the Commissioners appointed for that effect are by the Lawes of this and all other well governed nationes and by many Speciall acts of parliament made theranent Are crymes of ane high nature and Severely pwnishable Yet Nevertheles Robert Martine of Burnbrae albeit he know the saids Complainers to be Commissioners of Supply and excyse and Judges appointed theranent in all maters betuixt the tacksemen of the excyse and brewers yet Did most impudently take upon him to accwse callummat and maligne the saids Complainers Commissioners persones intrusted by ws and our governement for manadgeing and makeing effectwall the excyse and Supply within the Said Shyre as these who were not onlie gwiltie of illegall courses and maleadministratione But Likewayes inverters of the acts of parliament And that to the Lords of our privie Counsell as his petitione given in to them in the moneth of […] Last doeth bear As also the said Robert Martine did take upon him at his own hand to misinterpret and perverselie explaine the acts of parliament therby to give way to his arbitrary and illegall impositione upon the brewers of the said Shyre and wholly to render ineffectwall the excyse and Supplie within the said Shyre a considerable breach of our revenwe by takeing the boldnes to emitt and advertisement upon the twentie Seventh day of Jully J^aj vi^c nyntie thrie which hie caused print and publish at the severall kirks of the Shyres in which he declairs the additionall excyse by the act of parliament to exceed the former annwitie of two merks of the boll And Sicklyke the said Robert Martine did most arbitrarly and contrair to Law forbie and discharge the brewers from brewing untill they obtained Licence from him Therby endeavoureing not only to render wneffectwall the annexed excyse within the said Shyre another Seperat branch of our revenwe But also to rwine the whole brewers who would not forbear brewing by reasone of ther being lyable in payment of tackdweties to the tacksmen of the said annexed excyse by vertue of ther severall tacks and conventionall agriements with them as is evident from the saids advertisements And also albeit by our said act of parliament J^aj vi^c nyntie thrie yeirs anent the additionall excyse thrie pennies was imposed upon each pint of the ale and bear browen to be vended And sold etc According to which act the brewers were satisfied to make payment conforme to ther respective brewings yet the said Robert Martine in a most arbitrary illegall and tirranicall maner without any regaird to the foirsaid act of parliament and method therin proposed did goe with pairties along with him and not only threatned and menaced the Saids brewers with qwartering upon them with his Saids pairties in caice they refwsed to take Such tacks and pay Such proportiones to him weekely as he was pleased to appoint and modifie But also most wnwarrantablie by himself and without concourse or order of the saids Complainers Commissioners altho present at the tyme and place did qwarter upon such brewers as he thought fitt without the least Shaddow of Law untill he brought them by the foirsaid oppressione to take tacks and setts at what rates he pleased withowt any regwaird to exact the liqwid measure according to Law hightening and altering the Setts arbitrarly and never granting discharges But only partiall and conditionall that if the brewers payed no more for the annexed excyse which was his generall Standart without regwaird to the liqwid measure yea and qwartering and poinding many who had formerly bein brewers But never brewed within his tacks But for reasoneable causes had renunced and lyen dry and exonered by the Commissioners from brewing as by act of parliament allowed And the Severall brewers were content and did actwallie offer to give up entries to the said Robert and make payment therof conforme to the act of parliament As in particular the haill brewers within the towne and paroch of Frazersburgh yet the said Robert in manifest contempt of the said act of parliament and proclamationes of our Counsell did refwise to take ther entries upon oath But instead therof not only threatned the saids brewers But also actwallie qwartered upon them And therby endeavoured to obleidge them to agrie to Such exorbitatn and rigorows raites as he pleased to impose which was done upon one or other of the Dayes of the moneths in the yeir of God J^aj vi^c nyntie thrie And as a furder evidence of the said Robert Martine his unjust Dealling rigorows exactiones and maliciows procedoure contrair to the Lawes and acts of parliament remitts of the Lords Commissioners of our thesaury and exchequer to the saids Complainers Commissioners and ther ordinances therupon the said Robert Martine haveing charged the brewers of old Meldrwm for payment each of them of no less Soume then four Hundereth punds Scotts as additionall excyse of liqwors vended and Sold by them from the first day of Jwny J^aj vi^c nyntie thrie yeirs to the first day of Jwny J^aj vi^c nyntie four Wherupon the saids brewers haveing presented a bill of Suspensione befor our Saids Lords of Thesaurie and exchequer And efter the saids poor brewers were brought to great expensses by the said Robert his Long delayes and Litigiows debaite befor our Saids Lords Wherupon they were pleased to remitt the cause to the saids Complainers Commissioners to doe therin as they found cause as the extracted act and remit of the saids Lords Dated the twentie third day of November J^aj vi^c and nyntie four yeirs fullie bears And which is here repeated brevitatis cawsa And how Soon the Samen was presented to the saids Complainers Commissioners the said Robert Martin not being present they Did ordaine him to be cited to ther next meeting and in the mean tyme ordained the saids brewers ther complaint to lye in the clerks hands that the Said Robert might have inspectione therof And discharged all qwartering upon or poinding of the saids brewers untill the event of the said actione But that our revenue might not be prejudged they ordained the saids to consigne in the clerks hands at ther next dyet ther haill additionall excyse resting be them conforme to ther entries Notwithstanding of which presented bill of Suspensione act and remitt foirsaid and ordinance of the saids Commissioners duely intimat to the said Robert and ane extract therof offered to him be Thomas Forbes writer in Aberdeen yet he most wnarrantably and in contempt of all above represented ordered the Saids brewers to be qwartered upon for ther entries Since the first day of Jwny J^aj vi^c and nyntie thrie yeirs And actwally were qwartered upon and intirelie rwined throw which our revenwe Suffers extreamly And also the brewers of a whole paroch rendered wncapable to brew or retaill any more And Sicklyke as a furder instance of the Said Robert Martine his villanows and trinketting measures taken with the Saids brewers how Soon he recovered payment from them of the first thrie moneths contained in his tack not only then in the recepts granted therupon clandestinely foisted in a clause without ther knowledge or consent therby obleidgeing ignorant and illeterat brewers to pay the Same qwota dureing the remainder of the moneths of his tack as they had Done for the said first thrie moneths And how Soon therefter they came to make a Second payment he Did then also villanowsely insert another clause in his recepts wherby the saids brewers by acceptatione of the saids recepts were obleidged to pay als much to him as they did to the tacksmen of the annexed excyse and sometymes more And that Dureing the haill Space of his tack throwgh which although in the mean tyme he reaped be game yet the poor brewers were So impoverished and rwined that it will be impossible to make our revenwe of excyse effectwall for a long tyme And yet the brewers rendered Subject and lyable to pay him Dureing his tack whither they brewed or not As also it will appear evidently by the Severall Sederwnts of the Saids Complainters Commissioners And the multiplied bills of complaints against the Said Robert haped in upon by the brewers of the said Shyre that the Said Robert did exerce a most vigorows arbitrary and illegall method And that his oppressiones did amownt to that height as did render himself odiows and his practises intollerable and which might have most Justly provocked the Saids Complainers to have pwnished him as ane oppressor by the Lawes of the natione had not they bein restrained therfrae by the relwctance they Still had and yet hes to doe any thing that in the least might Seeme to hinder or retard the effectwall collecting and ingathering of our revinue Wheras the said Robert Martine pretends Lesione by the saids complainers proceedings betuixt him and the brewers so that his tack dwety by the Complainers maleadministratione is Shortned the Saids complainers (besydes ther own vindicatione of the Justice And eqwalitie of ther procedure) they offer to prove against the said Robert Martine yet another eminent instance of his villany Viz that the said Robert haveing bein collector of the annexed excyse of the said Shyre of Aberdeen by vertue of ane Comissione from the saids Lords of our thesaurie from the first day of November J^aj vi^c and nyntie yeirs to the first day of May J^aj vi^c nyntie one yeirs and also dureing the currance of the said collectione in the moneth of March J^aj vi^c nyntie one yeirs or therby haveing rouped and formed the annexed excyse of the Said whole Shyre for one yeir from the first day of May J^aj vi^c nyntie one yeirs to the first day of May J^aj vi^c nyntie two yeirs wherby he was Stated in two capacities the one as collector for owr thesaurie and the other as tackseman for himself and as being collector and haveing trwst from our Lords of thesaurie being bound in Jwstice to act for them as he could doe for himself if he were tackseman of the said excyse yet Defacto the Said Robert Martine at the issue of his collectione instead of advanceing the excyse to the best availl for the advantage of the publict did only exact partiall and easie payments from the brewers for this excyse dureing the tyme of his collectione and gave partiall recepts and not discharges to the brewers therfor Therby to render the whole brewers open and obnoxiows to nonentries which he Still kept them under untill he came to act as and tackseman for himself And compted only to the Saids Lords of owr Thesaurie for these partiall payments But when he began to exerce his office and character of tacksman he dealt with the brewers in these termes that if they and each of them could condescend to pay him swch a qwota dureing his tack he would discharge them of all he could claime from them aither for excyse or nonentries Dureing his collectione to which he forces them to comply and plainly converted the benefite of the balance of the excyse and nonetnries Dureing his collectione to his own particular and private cure and advantage Wherthrowgh the said Robert Martine hath clearly Shortned the saids Lords of our Thesaurie a considerable Soume the advantage wherof hath only accrwed to himself which is ane extraordinary abuse of the publict revenues And this can be proven by the whole brewers And also by his Subtacksemen and collectors that he treated So with them and injoined his Sub collectors So to manadge his interest as tackseman By all which it is evident that the Said Robert Martine is gwiltie of the crymes abovementioned And therfore he ought and Should not only be pwnished in his persone and goods as a comon oppressor But ought to be fyned in the Soume of Five Thowsand merks Scotts to be payed to the Saids Complainers for ther dammadge and expensses And the saids Complainers commissioners ought and Should be declaired frie of the complaint and assoilzied from the process perswed befor the Saids Lords of our privie Cownsell against them And anent the charge given to the said defender to have compeared personally befor the Saids Lords at ane certaine Day now bypast to have ansuered to the grownd of the foirsaid Complaint And to have heard and Sein Swch order and couse taken theranent As the Saids Lords Should think fitt under the paine of rebellione etc As the said Lybell and Letters of complaint with the executiones therof at more length does containe The Saids Lords of his majesties privie Counsell haveing this day considered the foirsaid petitione or complaint given in to them be the said Robert Martine of Brwntbrae against the Saids Commissioners of Supply within the said Shyre of Aberdeen with ther ansuers therto and whole procedure theron As also the said lybell raised at the instance of the saids Commissioners against Burntbrae with his ansuers therto and haill procedure theron They have assoilzed and heirby assoillzes the saids Commissioners of Supplie from the said Robert Martine of Burnbrae his complaint and haill points and articles therof And declairs them qwite therof and frie therfrae in all tyme comeing As Likewayes the Saids Lords have assoillzed and heirby assoillzes the said Robert Martine of Burntbrae from the saids Commissioners of Supplie ther lybell and haill points and articles therof And declaires him qwite therof and frie therfrae in all tyme comeing But in regwaird it appears the said Robert Martine of Burntbrae hath Sustained Damnadges they recomend it sereowsely to the saids Commissioners to consider his foirsaids Damnadges and to Doe therin as they Shall Sie cause And that betuixt and the tenth day of September next to come