Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. V.

The Privileges of Burghs and Burgesses. - Monopolies.

Incorporation of Cordiners in Glasgow,
v.
Dunlop and Others

Date: 3 December 1756
Case No. No 72.

An unfreeman, though not entitled to the benefit of the town's market, may manufacture goods within the town for exportation.

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James Dunlop, merchant in Glasgow, and others, having entered into a company for manufacturing boots and shoes for the plantation trade, the Shoe-makers of Glasgow brought a process against them, concluding, that they ought to be decerned to desist from their manufacture, unless they will enter with the corporatien, paying each L. 100 Scots of upset, and each giving in a sey-piece.—The defenders answered, That purposing to carry on their manufacture by their foreman, they were willing to pay for his entry, and that he should give in a sey-piece. They insisted that this was all the pursuers were entitled to demand. Every cordiner, it is true, before he can set up a booth, must be entered and pay entry-money. But after a man is thus made free of the craft, he may employ as many journeymen as he pleases, and is not limited as to the extent of his trade. He may also enter into a copartnery with whom he pleases, communicating to them a share of his gains. The copartnery, in the eye of law, is but one person: They have but one booth, and cannot be liable but for one entry. Again, with respect to a sey-peice, to insist, that each of the members must produce a sey-piece, is in other words to insist that the craft has a privilege to bar such a copartnery altogether. They have no such privilege by their seal of cause; nor could the burgh give them such a privilege.

This matter was reported to the Court; and, at advising, it occurred, that the defenders, in vending their manufacture, did not insist for the privilege, of the town market, but exported the whole to the plantations, This circumstance suggested a defence which had been omitted by the defenders counsel, viz. That the privilege of craftsmen in royal burgha is confined to: the market of the burgh; and that every man is free to deal in manufactures provided he do not vend them within the town. In support of this defenee, it was observed, That the privileges of a merchant in a royal burgh are much, more extensive than those of a craftsman. Foreign trade, is confined to merchants in royal burghs. They have a monopoly of this trade exclusive of all others, whether living in town or country. The privileges of craftsmen are confined within the royalty, and they have no privilege ad extra. None of the charters of erection of royal burghs bestow upon craftsmen any privilege more extensive. Hence it is that no unfreeman has the privilege of the town's market, or can set up a booth within the town for selling to the inhabitants. But nothing bars any burgess, or inhabitant of a royal burgh, to make work of any kind; provided he export the same, or dispose of it any where out of the privileges of the burgh. Upon this principle was founded the judgment, given, 8th July 1752, the Wright-calling of Perth contra Davidson and others, No 68. p. 1938. The defenders were servants to one of the fishing, companies of Perth, and were employed by them in making barrels and kits to pack salmon for foreign exportation. The Court assoilzied, upon this medium, That any man may make barrels and kits for the use of foreign trade. And it was the opinion of the Judges, That if a society dealing in foreign trade can import the materials or utensils of their manufactory, it cannot be unlawful to employ their own servants when it saves importation.

‘The Lords found, That the defenders, as merchants, may, without being entered with any craft, make boots, shoes, saddles, &c. for foreign export.’

The Judges who were against the interlocutor maintained the following proposition, That it is the privilege of freemen only to work within the burgh; and that all others are excluded from this privilege. This proposition is evidently untenable: For it was never doubted that any man may work for the use of himself and family. He may bake, brew, make shoes, gloves, wearing clothes, &c, for this end, as well as for presents to his friends. Tenant, No 65. p. 1934. was, by this Court, found entitled to brew, bake, kill oxen and sheep for the use of his inn. Hence it clearly appears, that the monopoly which craftsmen enjoy is singly that of vending their manufactures within the town.

Sel. Dec. No 121. p. 172.