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Scottish Court of Session Decisions >>
The Trades of Edinburgh v The Merchants. [1684] 3 Brn 502 (28 February 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Brn030502-0758.html Cite as:
[1684] 3 Brn 502
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Trades of Edinburgh v. The Merchants
Date: 28 February 1684
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Harcus reported the declarator raised by the Trades of Edinburgh and their deacons against the Merchants, founded on King James VI. his decreet-arbitral, and a late Act of the Town Council of Edinburgh, in October last, That the crafts shall get out three of the six given in by them in list to be deacons; and the Lords declared in favours of the said act, and that it should not be lawful to the Merchant Council to give them out any but three of their own six.
The Trades alleged,—This privilege was given them for quitting their right, at the time of the decreet-arbitral, that one of the four bailies should be a tradesman; and that the purer times near to the said decreet, (which was the best interpreter of it,) inviolably observed it; till of late, faction prevailing, Sir James Stewart, provost, began to give them out other three than any of their six; and then commonly they pitched on the poorest and most unworthy of the trade to be their led horses in their votes.
Yet the decreet-arbitral runs only, that the Magistrates shall ask the advice of the deacons of trades, who is the fittest to succeed them; but does not limit them to a number of six, more or fewer, (which custom hath since stated in six;) et consilium non est obligatorium.
Some of the Lords were for referring the case to his Majesty, to explain his grandfather's decreet-arbitral in 1583, (which is unclear in many things,) as being a point of government. Others, That trial and probation should have been led, what has been the uniform practice these forty years bygone: in which case, the Trades would have lost it. However, it carried but by one vote; and Carse was non liquet.
Though the Trades, while Trades, cannot now be Magistrates, yet this declarator does now give them a great influence in electing them, and may be the seed of much animosity between the two; for, by the Act, the Merchants may even yet pretend the six offered in list are not of the most worthy, as it is required they be.
