An abstract of the most material interlocutors of the Lords of Session, during the dependence before them, of the cause of the two Danish ships, the Palm-tree, and Patience of Sunderburg, adjudged prise by the High-Court of Admiralty, anno 1672. Against Alexander Acheson captain of the frigat ... by which said ships were brought up, and the owners of the said frigat ... . Excerped out of the two decreets of the lords pronounced in favour of the strangers, 25. February 1674. but not extracted till the 30. of July 1680. With the Articles of His Majestie's treaty with the King of Denmark, relating to the case of ships and goods taken at sea in time of war ... and divers other papers, related to in the decreets.

An Abstract of the most material Interlocutors in the two Decreets of the Lords of Session, in favour of the Owners of the two Danish Ships, the Palm-tree, and Patience of Sunderburg, against Captain Acheson and his Owners, in whose favour they were adjudged, Reducing the Admirals Decreets, and ordaining the Capers to pay the Value of the Ships and Goods.

Upon Debate of the Reasons of Reduction, in praesentia,

22. February 1673. THE LORDS FIND that Reason of Adjudication, that the Strangers had not Passes conform to the Formula agreed upon in the Treaty betwixt the Kings Maiesty and the King of Denmark, (albeit the Ships loosed from Norway, in the beginning of Iuly, 1672. long after the breaking out and knowledge of the War) not to inferre a Confiscation of the Ships, and Loadings alone; But that it importeth a just ground to seize and bring the same to Tryal, and that it putteth the burden of Probation upon the Strangers, by Documents and Witnesses above exception: That the Ships and Loadings belong to the Kings Allies, and Freemen, and not to the Kings Enemies AND FIND, that the Oaths of the Skippers and Owners, which would have been sufficient, if they had been adhibited at the obtaining of the Passes, conform to the Formula, are not now sufficient to clear the Property of the Ships and Loadings. AND THAT the being of no Passes aboard relative to the Voy∣age, but general Passes before the War, and that by the Skippers Oaths, it appears that they con∣cealed the Fraught-Brieffs, and that they were hid apart from the rest of the Documents and found by the Privateer; and bear a greater Fraught to be paid, in case the Ships were brought up to Holland; provided a safe Delivery were made of the Goods; DOTH IMPORT, an intended Delivery of the Goods in Holland, notwithstanding of the Missives and Documents aboard. AND FIND the same grounds joyntly to be a sufficient presumptive Probation of a Contrivance, and that the Ships and Goods are not free. BVT YET, to admit of a contrary positive Probation by Documents and Witnesses above exception; That the Ships and Loadings belong to the Subjects of Denmark, His Majesties Allies, unless the Privateer prove the same to belong to the Kings Enemies. LIKE AS THE LORDS FIND, that the true Port being concealled, or made Arbitrary by the Fraught-Briefs, if the Privateer should instruct. That Dail-boards such as were in these Ships, are ••ounterband by the Custome of the Admirality of England or Holland, that ground was sufficient, (though the Ships and Goods were proven to belong to Freemen) to infer Confiscation of both. THEREFORE THE LORDS granted Commission mutually, to either Party, for proving the Property and Value of the Ships and Goods; the quantity of the Loadings, and that the Port designed was London: And to the Defenders, that the Goods were Counterband.

But upon a Petition given in by the Pursuers, Representing a mistake in the said Interlocutor, as to the matter of the Fraught, (the Fraught being not a greater for Holland, than for England, but a lesse.) And craving the Benefit of a contrary Probation, as to the matter of Counter∣band, &c.

Eodem die. The Lords ordain these words, Viz, [That the Fraught-Briefs bear a greater Fraught to be paid, in case the Ships were brought up to Holland, provided a safe Delivery were made of the Goods, which the Lords find, did import an intended Delivery of the Goods in Holland, Notwithstanding of the Missives and Documents aboard; to be left out of the Interlocutor, and grant a contrary Probation to the Pursuers to prove, That Dails are not Counterband; And ordain the Probation to be hinc inde, vp Docu∣ments above exception.

Upon Report made of the Commissions, by the Pursuers from the Magistrates of Sunderbare and Christiania, and from the Lord Mayor and Aldermen of London, with an Attestation from the Admirality of Holland, and His Majesties Declaration in favour of the Danes.

25. February, 1674. The Lords having advised the Reports with the Depositions of the Witnesses, contained therein. &c. Then find that the property of the said Ships and Goods, doth belong to Carsten Matsen and Hanse Petersen. and their Owners, His Majesties Allies, And therefore Reduce the Decreets of Adjudication, &c.

Upon Informations given in hinc inde, in Relation to His Majesties INSTRUCTIONS.

23. Iuly, 1674. The Lords having considered the Informations given in by either Party, together with His Majesties Instructions, especially that Artcle thereof, concerning concealled Documents, they notwithstanding thereof, adhere to their former Interlocutors and Decreets, Reducing the fore∣said Decreets of Adjudication, obtained before the Admiral, in regard of the Probation, That the Ships and Goods belong to the Kings Allies, and Freemen.

Item, Upon a Hearing in Presence, upon His Majesties INSTRUCTIONS.

30. Iuly, 1674. The Lords having heard, &c. They adhere to their former Interlocutor, And ordain the Decreets to be Extracted.

Upon a Petition of the Capers, for a new Hearing, and Delay till November.

Eodem die. The Lords having considered the said Supplication. ADHERE to their former Inter∣locutors. And ordain each Party to name a Merchant for Valuing of the Ships and Goods, and remit to the Lord Collingtoun, to consider the Valvation, and to give his determination thereanent; And ordain the Decreets to be extracted accordingly.

The Capers at this time being Trading with the Ships, and the Strangers by the Envoy of Denmark, having Represented it to the King, and made Application to His Majesty, for having the Values of their Ships and Goods decerned to them, conform to their probation at Sunderburg and London; with the Damages and Charges they had sustained: And His Majesty having recommended the case to his Grace the Duke of Lauderdale; All which after diverse years expectation of the Success, taking no effect; The Strangers apply to the Lords in the Winter Ses∣sion, 1679. And after long Tergiversation of the Capers obtain at last this Interlocutor, upon a full hearing in presence.

27. February, 1680. The Lords having called both Parties and their Procurators, in their own presence, and fully heard, &c. And having advised the Reports, anent the value of the Ships and Goods, from Lon¦don and Sunderburg, THEY FIND, the Ship, the Palm-tree, proven to be worth 5000. Ricks Dollers. And, the Ship, the Patience, proven to be worth 3500. Ricks Dollers, and each hundred Dails of which the Loading of either Ship consisted, proven to be betwixt 5. and 6. lib. Sterling; AND DECERNE the Value of the Ships as proven. And modifie the price of each hundred Dails to 50. lib. Scots, &c.

Against this Interlocutor, the Capers having Represented to the Lords, by a Petition given in the last day of the Session.

• 1. Toat the Process had slept, and behoved to be wakned.
• 2. Several of the Strangers were dead, whose Factories behoved to be renewed.
• 3. By the King's INSTRUCTIONS, double and conceall'd Documents (both which occurred in these Ships) were a positive ground of Confiscation.
• 4. The Value could only be Decerned as the Ships and Goods were worth here.
• 5. The Goods were Counterband by the Dutch Placaets.
• 6. The Value behoved to be Decerned according to the Roupe.
• 7. They behoved to have Allowance of the Admiral's Tenths; The Kings Fifteenths, and the Companies Thirds.

28. February, 1680. The Lords supersede Extracting of the Decreets till the 1. of Iune. To the ef∣fect the Defenders betwixt and that time may produce the Roupe, which was made of the Ships.

And when June was come, and an Answer made to their Petition by the Strangers, upon Consideration of Both,

22. Iune 1680. The Lords adhere to their former Interlocutor of the 27. Feb. 1680. and Interlocutors preceeding, AND ALLOW the Pursuers the Annual-rent of the sums Decerned as the Value of the Ships from the Moneth of February, 1674. or after such time as the Defenders traded with the same; The Pursuers proving the Defenders have tradrd with them ever since: And if the Pursuers and their Procurators will not burden themselves with the said Probation; The Lords ordaine the Decreets to be Extracted as to the prices according to the foresaid last Interlocutor.

After which Interlocutor, upon a Petition given in by the Strangers, referring the Defenders Trading with the Ships to their Oaths; a Term was assigned them to Compear and Depone, And whereupon an Act being Extracted, and called, The Term was circumduced against them.

After the Extracting of the foresaid Act, whereupon the Term was circumduced against the Capers for not compearing to Depone anent their Trading with the Ships, Captain Acheson, Sir William Bruce, Sir James Standfield, Sir William Binning, and others, his Owners gave in a Pe∣tition: Upon which, though ipsis verbis, the same with the Petition immediately preceeding; the Lords ordained both Parties procurators to be heard in praesentia, as they were about three weeks after: And then upon a most contentious Debate, as to the Dutch Placaets, Double and Con∣ceall'd Documents, the King's Instructions, &c. By an Interlocutor.

20 Iuly, 1680. The Lords adhere to their former Interlocutors. BVT ALLOW Deduction of the Admiral's Tenths, and the King's Fifteenths; The Defenders producing Discharges thereof before Extracting of the Decreets.

After this Interlocutor, the Capers produced a Roupe, which they pretended they had made of the Ships, a ter they were declared free; And gave in a Petition, wherein they again recurr to the pretence of Counterband; Upon Consideration whereof, and of the Answer made by the Pursuers to the Roupe.

24. Iuly, 1680. The Lords refuse to grant the Desire of the Petition in respect that point a••e•••• Counterband was formerly considered by them; AND REFVSE to sustain the Roupe in regard the same was not formal, and that it was posterior to the Lords Interlocutor; whereby they De∣clared the Ships and Goods free: AND THEREFORE ADHERE to their former Interlocu∣tors, And ordaine the Decreets to be Extracted.

Then the Capers gave in another Petition, Representing,

• 1. They could be onely liable for the Ships as Rouped, and for the Goods as sold to the Ex∣chequer.
• 2. Former Interlocutors allowed them to instruct at what Rates the Ships and Goods were sold here, And therefore they could be no further liable than as they sold.
• 3. They could not be lyable for Annual-Rent, Because those of them who bought the Shipe might as Lawfully Trade with them as a Stranger.
• 4. They behoved to have Allowance of the Tenths, Fifteenths, and Thirds.
• 5. They could not be lyable in solidum, but singuli pro virili.

Which being Considered,

29. Iuly, 1680. The Lords notwithstanding thereof Adhere to their former Interlocutors, in respect there was nothing therein Represented, but what had been formerly under their Consideration; 〈◊〉〈◊〉 refuse to allow any Deduction upon accompt of the Companies Thirds.

After this the Capers gave in a new Petition, Craving a Delay till November thereafter, upon these Grounds;

• 1. That several of the Pursuers were dead, whose Factories were therefore expired.
• 2. Several of the Defenders were dead, (as namely, the Lord Cochran) whose Representatives be∣hoved to be called.

Which Considered,

30. Iuly, 1680. The Lords notwithstanding of what was thereby represented; ADHERE to their former Interlocutors; And refuse to delay the Extracting of the Decreets.

Which Decreets nevertheless when Extracted, were (upon the very same pretences which had been so often Repelled by the whole Lords in time of Session) Suspended by three of the Lords in time of Vacance.

Articles of the Treaty betwixt His Majesty and the King of Den∣mark, in the year 1670. Printed at London, Anno, 1672.

ARTICLE XX.

BUt lest such freedom of Navigation or Passage of the one Allie, and his Subjects and People, during the War, that the other may have by Sea or Land, with any other Country, may be to the pr••judice of the other Allie; And that Goods and Merchandise belonging to the Enemy, may be fraudulently concealled under colour of being in Amity: For the pre∣venting of Fraud, and clearing all Suspition, It is thought fit, that the Ships Goods, and Men be∣longing to the other Confederate, in their Passage and Voyages be accompanied with Letters of Passe-port, and Certificate: The Form whereof to be as followeth,

CHARLES, the Second by the Grace of GOD, King of Great-Britain, &c.

Christian, the fourth by the Grace of GOD, King of Denmark and Norway, &c.

When therefore the Merchandise, Goods, Ships, or Men of either of the Confederates, or their Subjects, and Pople, shall meet in open Sea, Streights, Ports, Havens, Lands and Places whatsoever, the Ships of War whether publick or private, or the Men, Subjects, or People of the other Confederate; upon Exhibiting only the foresaid Letters of Safe-Conduct and Certificate; there shall be nothing more required of them, nor shall search be made after the Goods, Ships,

or Men; nor shall they be any otherwise whatsoever molested or troubled, but suffered with all Freedom to pursue their intended Voyage. But if this Solemn and set Form of Passe-port and Certificate be not Exhibited, Or that there be any other just and urgent cause of Suspition, then shall the Ship be searched; which is nevertherless in this case only understood to be permitted, and not otherwise. If by either party any thing shall be committed, contrary to the true meaning of this Article, against either of the Confederates: Each of the said Confederates shall cause his Subjects and People offending, to be severely punished, and full and entire Satisfaction to be forth with given, and without delay to the Party injured, and his Subjects and People for their whole losse and expenses.

ARTICLE XXIV.

BOth Parties shall cause Justice and Equity to be Administred to the Subjects and People of each other, according to the Laws and Statutes of either Countrey, speedily and without long and unnecessary Formalities of Law, and Expenses, in all Causes and Controversies, which are Depending, or which may hereafter arise.

ARTICLE XXXV.

AND for the greater security of the Subjects of both Kings, and for preventing of all Violence towards them from the said Ships of War, all Commanders of any of the Ships of War, be∣longing to the King of Great-Britain, and all other His Subjects whatsoever, stall be strictly char∣ged, and required, that they do not molest or injure the Subjects of the King of Denmark. If they shall do otherwise, they shall be lyable to answer it in their persons, and Estates; and shall therein stand bound, untill just Satisfaction and Compensation shall be made for the wrongs by them done, and the Damage thereby sustained, or to be sustained. In like manner, shall all the Commanders of the Ships of War, belonging to the King of Denmark, &c.

ARTICLE XXXVI.

BOth Kings shall take Care, That Judgement and Sentence in things taken at Sea, be given ac∣cording to the Rules of Justice and Equity, by persons not suspected, or interested, and be∣ing once given by such Judges as aforesaid; they shall strictly Charge, and Require their Officers, and whom it shall concern to see the fame put in due Execution, according to the Form and Tenor thereof.

ARTICLE XXXVII.

IF the Ambassadors of either King, or any other publick Ministers, residing with the other King, shall happen to make complaint of any such Sentence: That King to whom complaint shall be made, shall cause the said Judgement and Sentence to be Reheard and Examined in his Council; That it may appear whether all things requisit and necessary, have been performed according to the Rules of this Treaty, and with due Caution. If the contrary shall happen, it shall be redressed, which is to be done at the furthest within three moneths time.

Neither shall it be lawful either before the giving of the first Sentence, or afterwards, during the time of the Rehearing, to unload, or sell, and make away the Goods in controversie, unless it happen to be done by consent of Parties, and to prevent the perishing of the said Goods and Merchandise.

The Third Article of the Kings INSTRUCTIONS concerning Prizes, sent down in June, 1673. which re∣lates to Double and conceal'd Documents, so much inlisted on by the Capers in these Decreets.

THat where any Ship met withal by any of the King's Royal Navy, or other Ships, Commissi∣onated by His Authority, shall fight or make resistance, or the Master or any of the Compa∣ny shall throw away, burn, tear, or conceall any of the Ships Papers, or Documents: or shall have ••o papers at all found on board in the said Ship, or shall bring or offer to the Court any false or double Writings, for Evidence; thereby to clear her, or her goods, or any of them; the said Ship and goods shall be Adjudged and Condemned, as good and lawful Prize.

The King's Letter to the Lords, concerning the Ship, the Calmar, dated 24th July, 1674. Relative to His INSTRUCTIONS.

WE have fully Considered your Letter To Us of the date the 25th. February, And do find that you have hitherto proceeded exactly in the Process depending before you, Concer∣ning the said Ship and Goods, according to the Instructions formerly sent unto you, which were intended by Us to prevent the Fraud of Our Enemies, or of such as might drive a private way of Trading with them, to the prejudice of Our Service: And not to be a snare to Our Subjects, or the Subjects of any Prince in Alliance with Us, when the property of either Ship or goods, coming into any Port of Our Dominions, doth really appear to belong unto any of them, &c.