Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

The Town of Edinburgh and James Murray
v.
The Earl of Cromarty, Robert Blackwood, James Balfour, and Alexander Ainslie

Date: 12 February 1706

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Lord Register reported the Town of Edinburgh, and James Murray their tacksman, against the Earl of Cromarty, Mr Robert Blackwood, James Balfour, and Alexander Ainslie, owners and masters of the glass manufactory at Leith. The Town of Edinburgh have, by their most ancient charters, right to the shore-dues at their port and harbour, for repairing and upholding the pier; and, by a gift from King Charles I, in 1636, ratified in the Parliament 1661, they have right to exact a merk per ton, of all foreign goods imported at Leith. And having pursued the said Alexander Ainslie to pay these dues for the goods he imported for the use of his glass manufactory:

He alleged Absolvitor,—Because, by the 40th Act 1661, all materials imported for manufactories are declared free of custom, excise, and other public dues; 2do, The merk per ton being only a grant from King Charles I, without consent and authority of Parliament, the same is null, and contrary to law; as is declared by the claim of right. And this farther appears by the 54th Act 1587, discharging all impositions whereof there was no legal warrant shown; and, by the 57th Act 1661, all impositions not allowed by Parliament are discharged; so that both positive law and the natural right of the subject concur to liberate them from this illegal impost. And, as to the shore-dues, they cannot be liable, for they uphold their own pier.

Answered,—The privilege of manufactories is only an exemption from dues payable to the crown, but not those given to private parties, or corporations and societies; and the claim of right only condemns those gifts of two pennies on the pint of ale, which the most part of royal burghs had obtained from King Charles II. and King James, without the consent of Parliament; but can never be extended to what our princes had bestowed for the common good of burghs, to defray and support their necessary incident expenses; else this would draw in question what belongs to the most part of the royal burghs in Scotland.

The Lords thought the general case of great importance, (though not in this special one of the glass manufactory,) there being a danger threatened, on the one hand, to the interest of many of the burghs, and as much inconvenience on the other hand, if such grants, not allowed by Parliament, come to be sustained by a decreet of the Lords. Therefore they ordained the case to be argued in their own presence.

Vol. II. Page 326.