Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 WINTER SESSION 1976.

Lord Halton
v.
The Town of Dundee

Date: 30 September 1676

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September.—My Lord Halton, treasurer-depute, as coming in the place of the late Earl of Dundee, by the gift of ultimus hæres, obtained a decreet at Secret Council against the town of Dundee, finding, that as Constable of Dundee, he had the haill criminal jurisdiction within that burgh privatively, and the civil cumulative; and thereon has expede a signature, and took infeftment about this time, in that his jurisdiction, at the Market-cross of Dundee. This insignificates their privileges as a burgh royal.*

They have raised a declarator before the Session against Halton; but as it is now packed, they can scarce expect ordinary justice there, and may well fortify his right by a decreet in foro contentioso, which even the subsequent Lords will be tender to reverse: so it were more advisable that res be left integræ in statu quo, till an equal hearing can be got; for it seems uncontroverted, that he arrogates and assumes more than ever Scrimgeor of Dudhope had, who were men inferior to none in vanity and pride; for their power was only to keep the king's peace, and guard the town of Dundee during the time of a fair, during which there was a great resort and confluence of strangers, and much bargaining and drinking, and so a probable fear quarrels might ensue; and this is the only reason for which I find constables were ordained in burgh towns. (A German has writ De jure constabularii.) Our burghs of old were so inconsiderable they needed this auxiliary assistance: as Kennedie of Carmucks was Constable of Aberdeen, and Erskin of Din was Constable of Montrose; and for their pains in guarding the town during the time of their fairs, they had some obventions and casualties and fines. Hence, I find by the 60th and 61st acts of the Parliament 1456, complaints were given in against the constables of castles as a grievance, in exacting stresses of the subjects that came to the fairs with their craims, and which oppression is forbidden till the Parliament consider if their infeftments bear them to these exactions or not. And to prove that the constable's power was not universal all the year, but only at set particular times, the jurisdiction of the High Constable, the Earl of Erroll, is a convincing argument thereof, for his power was only during the sitting of the Parliament in that town where it held, for guarding the King, nobility, and members of Parliament, and his old writs bear four miles about. See the Report in 1631, sent to the King by some he had commissionated for that effect, containing an account of the High Constable's privileges.

Quæritur—If the constable of the castle of Edinburgh has any jurisdiction within the town during the time of their fairs?

Advocates' MS. No. 495, folio 259.

Nov. 30.—This day the town of Dundee was convened by my Lord Halton before the Secret Council, for judging a riot, which only belonged to him, and refusing to keep prisoners for him, &c. conform to the decreet he had got against them. Vide supra, Sept. 1676, No. 495. He got their provost and bailies imprisoned in the tolbooth of Edinburgh, and fined the provost in 4000 merks, and each of the bailies in 3000 merks; and the town of Dundee ordained to find caution of lawburrows under the pain of 20,000 merks, for Halton and his servants' security at the hands of all the inhabitants of Dundee. Which was thought very strange and hard to bind, for the humours of people, who might in a pique to the magistrates cause them incur the failyie, and it wants an ordinary style. This caused great outcry.

* The least that can be granted them as a burgh-royal, is a baron's power,—Mixlum imperium ad vindicandam et explicundam suam jurisdictionem sine quo subsistere nequit; L. 2, D. de Jurisdictione.

Advocates' MS. No. 511, folio 267.

[See the subsequent parts of the report of this case, Dict. p. 16679 and 10274.]