Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. V.

The Privileges of Burghs and Burgesses. - Monopolies.

The Incorporation of Girdle-smiths of Culross,
v.
John Watson and James Masterton, Smiths in Kilmarnock

Date: 13 January 1725
Case No. No 60.

The girdle-smiths of Culross have two royal grants ratified in Parliament, giving them the exclusive privilege of making girdles for all Scotland. It was found that no such perpetual monopoly could be effectually granted.

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The defenders having been for some time girdle-smiths in Culross, left the place and set up that work at Kilmarnock; upon which the girdle-smiths of Culross raised a declarator against them, to have it found, That the said incorporation had the sole and exclusive privilege of making girdles in Culross for the service of all Scotland: And this right they founded upon two royal grants, the one by King James VI. in the year 1599, and the other by King Charles II. anno 1666, and ratified in Parliament in the 1669.

It was answered for the defenders, That all perpetual monopolies were odious and unlawful; that these private grants were surreptitious; and even the ratification in Parliament could not mend the matter, being granted parte inaudita, under a salvo jure; and therefore these grants could not prejudge the burgh of Kilmarnock, which had, by a prior grant, anno 1592, ratified in Parliament that same year, a jus quæsitum of having all trades and artificers which any free burgh had been in use to have.

Replied, That such a general privilege of having all trades, &c. could not restrain the Crown from granting a special privilege of exercising a particular trade to one society: That all monopolies were not absolutely unlawful, and therefore the Crown, by its prerogative, might, for good reasons, grant a privilege of this kind; and in the present case there was a very good one, namely, that this art was first invented in Culross, and carried to the utmost perfection there. And Grotius observes, lib. 2. cap. 12. § 16. De jure belli, That, non omnia cum jure naturæ pugnant, sed possunt interdum a summa potestate permitti justa de causa; and he mentions several monopolies granted under the Roman government.

The Lords found, That no such perpetual monopoly could have been granted in prejudice of this or any other burgh.

Reporter, Lord Pollock. Act. Jas. Boswell. Alt. Sir Tho. Wallace. Clerk, Dulrymple. Fol. Dic. v. 3. p. 105. Edgar, p. 145.