Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. V.

The Privileges of Burghs and Burgesses. - Monopolies.

Walter Miller, Procurator-fiscal of the Burgh of Perth,
v.
Alexander Clunie, and Others

Date: 7 July 1752
Case No. No 67.

The magistrates of a royal burgh, not erected into a barony, may not prohibit the importation of ale into the burgh.

The erection of a royal burgh does not include the privileges of a barony.

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In 1748, by act of the town-council of Perth, the inhabitants were prohibited, under certain penalties, from importing any ale or beer brewed without the liberties of that burgh: Alexander Clunie and Company having been pursued before the magistrates, at the instance of the procurator-fiscal, for transgression of this act, the case was advocated by consent of parties.

Pleaded for Walter Miller procurator-fiscal, The town of Perth, by its charter of erection, and by subsequent grants from the Crown in its favour, is entitled to all the privileges of any royal burgh in Scotland: that its magistrates have not exceeded, in their act of council, the powers given them by law, is evident from the case of the magistrates of Musselburgh, decided not many years ago, where it was found that they were entitled to prohibit the importation of ale into the burgh: if such are the rights of a burgh of regality, a fortiori must they belong to a royal burgh, more especially to such an one as Perth, which has been always held particularly to enjoy the privileges of a barony; vid. Skene ad leges burgorum, cap. 19. and that every baron may not only regulate the brewing of ale within his barony, but also prohibit the importation of ale brewed without the limits of his barony, is a principle incontroverted in the law of Scotland.

Answered for Clunie and others, The argument used on the part of the magistrates proceeds upon a supposition manifestly erroneous, viz. that the erection of a royal burgh implies in it the right of a barony; whereas in truth these grants differ widely both in their nature and in their effects: the erection of a barony is a grant in favour of the baron himself, who is proprietor of the ground, and consequently entitled to all emoluments thence arising: of this nature is the privilege implied in the common clause in charters cum brueriis; which privilege is so much the consequence of property, that it will be carried, although not expressed, by a general grant of lands. The erection of a royal burgh, on the other hand, is not of the nature of a private grant of property; royal burghs are established for the general benefit of the nation: Both the estate and the freedom of the burgh remain inter regalia, and may not be alienated: the bailies are the King's bailies, and every individual is the King's vassal in his burgage tenements. The terms of the grants from the Crown to royal burghs must determine the measure of their rights: and nothing, besides what is essential to the constitution of a body corporate, is implied in them: Thus we find in the Leges burgorum, ch. 19. quod in burgo non debet audiri bloodwit, marchetæ, herezeld, nec aliquid de similibus; on which Skene observes, hujusmodi privilegia et immunitates pertinent ad barones, non ad burgenses, nisi jus baronum et vicecomitum habeant sibi concessum. This shows that, in Skene's opinion neither the right of barony nor that of sheriffship is implied in the erection of a royal burgh. It is confessed that the town of Perth has a right of sheriffship, in virtue of express charters to that effect; but that any of its charters contain a grant of barony, or of its privileges, is a groundless averment: As to the case of the town of Musselburgh, it is not in point; for that town is, by special charter, erected into a barony.

“The Lords found that the Magistrates of Perth had no power to make the act pursued on; and therefore assoilzied the defenders, and decerned.”

Reporter, Kilkerran. Act. J. Grant, J. Craigie, R. Craisie, et Advocatus. Alt. Miller, Lockhart, Ferguson. Clerk, Pringle. Fol. Dic. v. 3. p. 107. Fac. Col. No 25. p. 44. *** Lord Kames reports the same case:

Alexander Clunie, merchant in Perth, and others, having resolved to bestow a sum of money upon brewing and distilling, feued a piece of ground closs to the town, but not within its liberties; and built houses to a considerable extent. This was an advantageous situation, which gave them all the advantages of the town as a market, without being liable to its burdens. Being thus able to undersell the brewers of Perth, who were thirled to the town's mills, the magistrates, jealous of the interest of the town, made an act of the town-council December 1748, inhibiting and discharging the inhabitants of the burgh to import into the town any beer of ale brewed without the liberties, under the penalty of L. 5 Sterling for each trangression. Upon this act Alexander Clunie and his partners, who are inhabitants, being condemned by a sentence of the magistrates for importing ale into the town; the cause was advocated and reported to the Court. The magistrates, in name of their procurator-fiscal, used many arguments; but the only plausible one was, That the erection of a burgh royal includes all the rights of barony; that a baron can restrain the importation of ale into his barony, and that the magistrates of a royal burgh must have the same privilege. It was denied by the defenders that the erection of a royal burgh includes the privilege of a barony. The erection of a barony is a grant in favour of the baron; he, as proprietor, can exercsie all acts of property, thirling his people to his own mill, to his own brewery, or to has own smithy; for a very obvious reason, that no man is entitled to take up a dwelling within the barony without his allowance; and if he submits to dwell within the barony, must submit to the conditions imposed by the baron. The erection of a royal burgh is not for the benefit of any particular person, but for the benefit of the inhabitants in general, or rather for the conveniency of the lieges in general, in promoting trade and manufactures. No man can be denied access to a royal burgh, either for selling or purchasing the necessaries and conveniencies of life; unless where there are exclusive privileges by particular grants, which is not the case here; for it is not pretended that the brewers are a corporation or have a seal of cause.

‘The Lords found that the magistrates had no power to make the act.’

Sel. Dec. No 13. p. 15.