Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

The Magistrates of Edinburgh
v.
the Country Brewers

Date: 10 July 1712

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In the cause at the instance of the town of Edinburgh, against the brewers of the shire (mentioned supra, 18th July, 1711.) It was alleged for the town, that they may impose a greater duty upon the sledge, than upon the load, proportionably to the greater quantity of ale brought into the town by the sledge. For this petty custom of eight pennies was imposed upon the load, which was eight gallons; and four pennies upon the burden, which was four gallons: and the load and burden were rated, not because the one was carried on a man's back, and the other on horseback; but because the load consisted of eight gallons, and the burden of four. Whence it follows, that two loads or sixteen gallons now charged upon a sledge, ought to pay double; and so proportionably, according to the greater quantity of ale that shall be imported upon a sledge.

Answered for the brewers,—As the instituting of customs and tolls, are de summo Imperio, Sixtinius de Regal. Lib. 2. C. 6. N. 14. vid. Tit. ff. de Public. et Vectigal. Tit. Cod. nov. Vectig. Instit. non poss. Craig, Feud p. 112. in fin.—so the adding or diminishing from, and the reforming or altering tolls or customs established by the sovereign's concession or ancient consuetude, is held to be an innovation and usurpation of the royal prerogative, d. Tit. Cod. L. 10. ff. de Public. et Vectig. punishable not only by infamy and fining, but even by death: Minsiger Observ. 29. Lib. 5. N. 3. Farin. Quæst. 172. Part 3. N. 67. And the exacting this double duty, for a load of ale of a double quantity or two nine-gallon-trees, is an alteration and augmentation of the custom by the magistrates' authority, which cannot be allowed.

Replied for the town,—It is not doubted but that the imposing customs belongs to the sovereign power, and that customs and impositions can only be altered or augmented by the supreme power: But here no custom is demanded, save what is granted by King and Parliament; and there is no material alteration of the impost of custom. This petty custom being given upon the load of eight gallons of ale, or upon the load of ale, as well known to be eight gallons; where two loads, or two nine-gallon-trees, are charged upon a sledge, it is but still the same custom, without alteration or augmentation, to exact sixteen pennies for the same, (as eight pennies formerly for the single load,) save that it is indeed made easier: so that all the brewers, Latin texts, and citations of authors, are only an empty flourish. Neither King nor Parliament ever dreamed that by removing this load to a sledge, or two loads to a sledge, the duty might be frustrated or evaded. Farther, that the quantity rules the matter, and that the King's grant is so to be understood, is evident from this,—that though nothing be determined in the town's charter and gift, with a relation to ale imported to Edinburgh upon carts; yet, because the ordinary draught in a cart is three eight-gallon-trees of ale, two shillings Scots, of duty upon the cart of ale, is established by custom and prescription; keeping always the same proportion that there is betwixt the burden and the horse-load: Although, if people have a mind to cavil, a cart-draught is frequently called a load.

The Lords found, That the town of Edinburgh can impose a greater duty upon the sledge, than upon the load, proportionably to the greater quantity brought into the town by the sledge, than the load; but not exceeding two shillings Scots for the greatest, brought into the town of Edinburgh, for a cart-load.

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