The magistrates of a royal burgh have no power to restrain the inhabitants from importing ale: a power which a Baron would have over a burgh of Barony.
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Alexander Clunie and others, burgesses and inhabitants of Perth, having purchased a piece of land in the neighbourhood of the burgh of Perth, and without the privileges thereof, did thereon erect a brewery, and imported their ale into the burgh for the use of the inhabitants. Of this the brewers residing in the burgh complained to the magistrates, as what was highly prejudicial to them, who were liable to the burdens of the burgh, particularly to the multure of their malt at the town's mills, while the said Clunie and others, who were not liable to such burdens, were in condition to undersell them. To which complaint the magistrates hearkened, and by their act of council inhibited and discharged the inhabitants of the burgh, in all time coming, to import into the town, any beer or ale brewed without the liberties of the burgh, under the penalty of L 5 Sterling for each transgression.
Clunie and his partners being advised that the magistrates had no authority to make such an act, continued to import their ale; and the procurator-fiscal having pursued them for the L. 5, as the penalty of their first transgression; and they having objected to the authority of the act, the magistrates repelled the objection.
The company presented a bill of advocation, and the pursuers having consented to discuss upon the bill, the Lords unanimously ‘assoilzied the defenders.’
The whole of the question turned upon this, Whether burghs-royal, some of which have the jurisdiction of baron given them in their erection, have the same power as to the inhabitants of the burgh as barons have with respect to the inhabitants of the barony, on whom the baron may put what restraint he pleases with respect to brewing. This I say was the whole of the question, for the disappointing the town of the mill-multures was not pretended to be any justification of the act of council. And the Lords were of opinion, that the magistrates of a burgh-royal had no such powers in that matter as barons have.
A baron can not only restrain the importation of ale, but even prohibit the bringing ale for sale within his territory: As proprietor, he can remove every inhabitant of his territory, who, so long as they reside, must submit to what lawful rules he prescribes: Whereas burghs-royal are not of the nature of private grants of property: They are all established for the general benefit and utility of the nation; neither the territory erected into a burgh, nor the freedom of the burgh can be alienated, as they are inter regalia; the magistrates have no property in the burgh, the bailies are the King's bailies, and every individual the King's vassal in his burgage tenement; and even where a right of barony is given in the erection, it imports no more than the addition of a jurisdiction, which the simple erection of a burgh does not give, but by no means gives such power to the magistrates and council over the inhabitants as barons have over the inhabitants in their property. The power here contended for by the town council appears to be contrary to the common sense of the nation, and the understanding of all the other royal burghs, who, though equally willing as the town of Perth to extend their authority, never dreamed of a power to restrain any of their inhabitants from serving themselves with the necessaries of life, as they can be best served. And last of all, the several statutes imposing the two pennies of the pint upon ale brewed, imported, and vended within the burgh, is a declaration of the legislature, that it is the privilege of the lieges in general to import ale into the burgh in the same free manner as any other commodity, not falling under the exclusive privileges of any incorporation, and there can be no corporation of brewers. (See This case as reported in the Fac. Col. and by Lord Kames, No 67. p. 1936.)
