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Mr John Buchan, Agent for the Royal Burghs, v The Towns of Musleburgh and Dalkeith. [1696] 4 Brn 310 (12 February 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040310-0670.html Cite as:
[1696] 4 Brn 310
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr John Buchan, Agent for the Royal Burghs, v. The Towns of Musleburgh and Dalkeith
Date: 12 February 1696
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Mr John Buchan, Agent for the Royal Burghs, against the Towns of Musleburgh and Dalkeith, for paying a proportion of the burghs' stent and taxation, or else desist from all trade, either of export, import, or retailing, conform to the clause in the 31st Act of Parliament 1653, anent the communication of trade.
Alleged, 1mo. That they were content to be regulated by the Act 1690, anent the trade of the royal burghs; and that the contract betwixt the burghs and Mr John Buchan could make no innovation thereof; and the Act in 1693 has only ratified the said contract, but derogates nothing from the Act 1690. 2do. That, by King David Bruce's charter, anno 1364, to the four burghs belonging to the Abbacy of Dunfermling, viz. Dunfermling, Kirkaldy, Queensferry, and Musleburgh, and many Acts since, they have the full liberty of trade with any other burghs in the nation; and so were in bona fide, and ought to be assoilyied from bygones.
Answered,—The inequality of all the old acts giving the royal burghs the whole trade was, that it established a monopoly to the exclusion of others; and the iniquity of the 5th Act 1672, was, that it robbed the burghs of their privileges, and communicated the same to the burghs of regality and barony, without imposing any part of the burden annexed to these privileges, but leaving the same to be wholly paid by the royal burghs: But now, by the Act 1693, all thir inconveniences are cured, and trade is communicated and diffused, they always bearing a proportional part of the burden, (but prejudice of the privileges and encouragement given to manufactories;) and if ye decline the onus, ye must not have the commodum; ye must desist from trade either in gross or retail. And, as to the Town of Musselburgh's charters, they were but periculo petentis et salvo jure, and taken away by subsequent laws: Neither could the king give them the trade due to royal burghs, in prejudice of the jus quœsitum to them; and his grants must be understood in terminis juris.
The Lords found the standard and rule of trade now betwixt the royal burghs and other traders was the Act 1693; and such as repudiated the offer of a participation of trade behoved to give over trade, if they would not subject themselves to a share of the burden annexed thereto; and found they could not plead bona fídes, after the public Act of Parliament 1693: and therefore nominated two of the Lords, with the Reporter, to adjust the quota of thir burghs, for bygones, and in time coining. But, for the period and interval, from the Act 1690 to the Act 1693, found them only liable in the penalties, where they shall be proven to have transgressed the tenor of that Aet, in buying staple goods from unfreemen, not burgesses of royal burghs.
