State Papers, 1650: October-December

October-December

Judges of the admiralty to the council of state.

Vol. ii. p. 102.

May it please your honours,
Being commanded to deliver our opinions touching the Portugal business, as the matter of fact is before us; we do humbly represent, that heretofore upon an order from the parliament referring it to this council, to consider how this commonwealth might be righted for the wrongs and injuries done unto them by the king of Portugal, in protecting the revolted ships, and permitting of prince Rupert to commit those barbarous misdemeanors, and hostile, outragious, and treacherous acts against the English fleet in that king's ports and territories, without ministring of that justice, which the law of nations exacted from him, though often required thereto in the name of this commonwealth, as well by their then resident, as also by general Blake; wee were then required by this council, to peruse the letters and returns transmitted and signed by the said resident and general Blake, and the papers concerning that whole business; and thereupon to state the matter of fact, together with our opinions what might justly be done by the law of nations in that case; which accordingly we did, and represented the whole fact stated out of those papers, as also the grounds whereupon that king was by the law of nations obliged to make satisfaction to this commonwealth for those wrongs done unto them in his port, and the damages sustained thereby, and by his lack of ministration of justice. And that in respect all fair courses had (as those letters and papers then sent unto us attested) been observed for seeking redress in an answerable way, according to the forms of princes, and demands of justice had been made publico nomine, and yet without effect; that therefore by the law and custom of nations there did lie droit de marque, and reprifals might justly be granted against the ships and goods of the king of Portugal and his subjects ad damni dati modum & damnorum consequendorum causa. We do not further repeat the reasons and particulars, because they are at large set forth in our former reports remaining with this council; but it appears to us, that this hon. council, upon due consideration of the matter, finding, that justly by the law they might, did in their wisdom and prudence hold it meet, to grant reprisals against the ships and goods of the said king of Portugal and his subjects in respect of the premisses; and did order and grant the same to be executed by the fleet and ships of this commonwealth, and sent instructions to the generals of the fleet to put the same in execution. In pursuance whereof divers ships have since been taken, with goods therein belonging to that king or his subjects; and are brought up, as we are informed, to the river of Thames; amongst which divers English merchants and others do pretend, that there are divers goods not belonging to the Portuguese, but rightfully pertaining to them; and have come to the admiral court, to pray that the same might have been put into some way, that such goods as belong to the English might be restored; alledging, that for want thereof they suffer loss. But in respect that no order hath been given by the parliament or this council to admit of proceedings touching the premisses, there hath nothing at all been done by that court thereupon. This being the case, we do humbly conceive (submitting our opinion to this honourable council) that it is very requisite, that the matter should be speedily put into a legal way, and proceedings be made according to the rules of justice. For that the nature of reprisals requireth, that whatever is taken thereby, be brought to open judgment in an admiral or legal court; and if that be omitted, though the first reprisals were legal, yet the disposal without judgment or order of court is not so.

All reprisals are grantable ad damni dati modum, and then cease, when full satisfaction is made. And therefore it is necessary, that whatever is in that sort surprized, be by order of court, or sufficient authority faithfully inventoried, and duely according to the true value apprized. That neither the Portuguese for default thereof have cause to complain, nor to charge it, that much was taken, but little put to accompt; nor yet the commonwealth be defrauded of that, which in truth ought to come unto them.

That all the cocket writings, bills of lading, and papers may be perused for discovery of whatever goods or money belonged to the Portuguese; that thereupon, and examinations of witnesses upon interrogatories, the whole may be brought to light, and not swallowed up or imbezelled by others, under colour that they do belong to them, when in truth they do not.

That the course of justice may be open to the English to put in their claims for what they pretend to belong unto them, and yet so, as they may be enjoyned to prove it to be bona fide and really theirs, in truth, and not any Portuguese; or otherwise judgment to go according as proof shall be made, for avoiding of scandal, the matter concerning a foreign nation; that it may not be objected, that the surprizal was made by a specious pretence in the way of reprisals, which require proceedings in course of justice, but the goods made away without any such proceedings or form of justice at all, contrary to the customs and laws of nations. For that we conceive there is daily much charge expended about conserving them in the state they are in, which would be wholly saved, if judgment were given, besides the damages by loss of market, and the detrimenting of the goods.

For which reasons, we are humbly of opinion, that it is requisite, that the matter be put to open trial in the admiralty court, to receive publick judgment according to the rules of justice and laws of nations. All which nevertheless we humbly submit.

October 11^th 1650.

William Clerke, J. Exton, Wil. Walker.

Act giving power to the leiu. general to pursue these, who have lately risen in armes in the north. Orig.

Stirling, 22 October, 1650.

From the public records of Scotland in the laigh parliament house at Edinburgh.

The comittee off estaittis taking to thair consideration, that thair are certane persones laitlie rysin in armes aganes his majestie and the kingdome, to the disturbance of the peace thereoff; for remedie and suppressing quheroff, they have appoynted and ordaned, and be thir presents appoynts and ordanes liuetennent generall David Leslie to pass aganes the forsaids persones, or any who are now or shall be in armes as said is, or any who shall be aiding or assisting to thame any manner of way, with fire and sword, till they be totallie suppressed. And the said committee of estaitts approves whatever the said leivetennent generall shall happin to do in prosecuting of the said service.

Loudoun, Cancellarius I. P. D. Com.

Instructions from the committee of estates to colonell Robert Montgomrie. Orig.

Perth, 25 October, 1650.

From the public records of Scotland in the laigh parliament house at Edinburgh.

Yow are hereby warranded and authorized to give orders to the regiments of horse under the command of the lord Brechin, colonell Arnot, and the regiment of dragoones under colonell Mengzeis, and to the regiment of horse under yourselff, to remove from the quarters, quher they are presentlie, to the places be south Sterling, and be north Clyde, and be north Bothwell bridge.

Yow are to take the said regiments under zour command, and with them to seek all opportunities of advantage against the common enemie, as upon the place yow shall find most for the good of the service; and also to take what assistance zow can gett of the westerne forces.

Yow are to appoint colonell Scot of Whytsled's regiment to march to Sterling shyre, and quarter in the places west to the towne of Sterling, quher thes are to doe duetie for a fourtnight, untill they bee afterward releived.

Yow are to give ws frequent intelligence of the enemies motions and of your proceedings.

Loudoun, cancellarius I. P. D. Com.

Yow are heerby warranted and authorized to put sogers in such houses and forts, as yow shall think fittest for the good of the service; requyring those that are in such houses, to remove upon your ordors, which they are to obey.

Instructions for the lord Angus and the lord Humby and the gen. commissary. Orig.

From the public records of Scotland in the laigh parliament house at Edinburgh.

Yow shall goe to the ship, that was lately taken by these, who are in the guarison of the Bass, and take inventary of moneyes, armes, amonition, boots, shoes, sadles, bridles, biscuit, and all other goods, and commodities within the said ship, and secure the same.

Yow shall make all the aforesaid commodities, that are usefull for the army, to be furthcoming to the publict, and delyvered to the gen. commissary, with power to him to press horses for transporting the same.

Zow shall try what of the said commodities do belong justly to the laird of Waughton for the interest of that guarison of Bass, or to the admirall, or for his interest in the guarison of Tantallan; and that the generall commissary in name of the publict give security to them for the same.

Yow shall take care, that the said commodities may be so ordered, as they may be safely keeped, untill they be disposed of for the use of the army.

Yow shall lykewyse goe to the two ships come from Gottenburry into the Ely, or any other harbor, where the said ships are; and try what armes or amonition are in the same, and cause secure them for the use of the publict, and make particular inventary thereof; and if they doe belong to merchants or any privat persons, that yow make the best bargain with them yow can, and secure them in name of the publict, for the price of arms, and amonition.

Yow shall affoord such supplyes to the guarisons of Bass and Tantallan, as yow shall find them to stand in present need of, and as yow are able to give them.

Yow shall try whether the prisoners taken in the said ships be sogers, or onely mariners, or ordinary marchants; and if they be not sogers or men of warr, yow may set them at liberty.

Yow shall performe the premisses with all care and diligence, and report your proceedings to the committee speedily.

Loudoun, cancellarius I. P. D. Com.

The council of state to general Blake.

Vol. ii. p. 93.

Sir,
We being informed that the Portugal's Brazil fleet is returning homeward, and that Rupert with his piratical crew is got abroad, have thought fit to order captain William Penn, with as many ships as at present could be fitted out, which are but four, to sail southward, both for the prevention of Rupert, as much as he is able with this strength, from doing further mischief on the good people of this nation, and for the surprizal or destruction of as many of the Portugals, as he can make attempt on in their return homewards from Brazil. Your partners col. Popham and col. Deane have been ordered to give him a commission to command in chief for this service, with instructions accordingly for his better regulation therein. And we have thought good hereby to desire you, if the said captain Penn happily meet you in his voyage thither, that you will spare him out of your fleet as many well sailing ships and frigates for his assistance, as may be capable of staying out two months longer, and can by any means be furnished with victuals accordingly. We conceive great or sluggish ships will be too great a hindrance to this service, by retarding the motion of those he hath already, which are all good sailors. We direct, that you with the rest of your fleet will repair home with all the speed conveniently you may, that we may upon conference with you the better understand the state of affairs in those parts, where you are and have been; and also may give timely order, for fitting out those ships with you against the next spring, if there shall be occasion for their service.

Whitehall, 2 Nov. 1650.

The council of state to general Blake.

Vol. ii. p. 94.

Sir,
We have taken into consideration the great charge this commonwealth hath been at in setting out fleets for those parts, both this last summer and also for the winter to come; for the defraying and bearing whereof it is necessary, that the prizes, that have or shall be taken, be improved to the best advantage that may be. We therefore desire you, that all such prizes may be sent home into England, and no goods sold in foreign parts, unless any of them be perishable, or upon great necessity to victual the fleet; to the end there may be a strict account taken of them, and no part thereof imbezelled for want of strict officers to take care of them, and the best improvement made of the sale of their goods.

Whitehall, 5 November 1650.

General Lesly's letter anent his conduct at Dumbar.

For the king's most excellent majestie and the committee of estettis.

From the public records of Scotland in the laigh parliament house at Edinburgh.;

Quheras it hethe plesid God (who is just in all his vayis) to bringe this kingdom varie low be the defett of the armie nier Dumbar, quherof altho I had not the absolut command, zit the soll bleam of that unhappie dai is lad upon me; I do acknovlig I heve my avin infirmities, zit I do vith a cleer conscienc avow befor God and the quholl vorld, that I did sincerlie, according to the licht and knovlig God had conferrid upon me, indevor the subdiuing of that enimie, notvithstanding mani aspertions ar cast upon me, quhich the Lorde heathe inablid me vith sum measur of patience to bear. And truly I vas oft tymis resolvid to heve layd doun my commissione, seing quhat had fallin out vas constructid, both by (fn. 1) my myne enimis and sum good people, as an call to me to denud myselff of all publick imployment; bot ferring that sould lyckvys admit sum malinge constructione, as if I had desertid the causs in such an exigenc, I resolvid still to suffer, untill now finding so many, zea even my best frindis dissatisfiid vithe my deportmentis in the conduct of that armie. And I cannot, bothe for removell of any accessione in your lordships to that injustic of continuing any in your servic, quho had betrayid ther trust, and not obviatting the unjust calumnis and imputations cast upon your faithefull servant, bot in all humilitie besiche your lordship to tack an mor exact tryell of my cariag in the leat armie, that so I may receav ather censur or vindicatione, as your lordship findis just. This is the desyr and humble sutt of,
Perth, 20 Nov. 1650.

My lordis, Your lordships most faithefooll servant, David Leslie.

Red in presence of the king's majestie and the comittee of estat, and remitted to those, who are upon the conference.

Perth, 27 Nov. 1650.

It is the opinion of the committee for military affairs, to whom the generall lieutenant's desyres were remitted to be considered, that he should set doun a particular relation of his deportments, anent the conduct of the army, and sending out of partyes, and every circumstance that may best clear the busines at Dunbar; and that such persons as were with the army, and best knowes the passages, may be enquyred and examined; that the e. Lothian doe examine two (fn. 2) troopes.

The council of state to general Blake.

Vol. ii. p. 95.

Sir,
We have received information, that of late opportunities have been offered, and by you accordingly prosecuted, whereby very good service hath been done against Rupert and other enemies of this commonwealth; and we not knowing what opportunities may further offer themselves, which we doubt not but you will improve, we have thought fit, notwithstanding any former orders permitting your return, to desire you with the fleet under your charge to continue abroad for so long as you find will be for the public service, and to victual yourselves for that purpose where you best may, either with the sale of your prizes, or with the credit formerly given you. And for the better and more effectual prosecution of what may offer for the advantage of the commonwealth, you are to give order to the fleet under captain Penn ordered for the southward, concerning which we have written to him, or any other ships in service of the state, except the standing convoys, who are under the command of captain Edward Hall, which the parliament hath ordered should follow the directions given by the commissioners of the navy, and not be diverted from that service, wherein the merchants are so immediately concerned. We desire you not to neglect any opportunity either by sea or over land to let us be informed of your state and condition, and of your proceedings against the enemies. Perhaps you may hear, that the king of Portugal hath sent a public minister into England; notwithstanding which you are to take no notice of it, but prosecute your former instructions formerly given you, till you receive express order therein from this council.

Whitehall 24 Dec. 1650.