Scottish Court of Session Decisions

Subject_1 PART I.

BURGH-ROYAL.

William Fothringham, &c
v.
Andrew Langlands, &c

Date: 13 December 1776
Case No. No. 2.

Power of a burgh to alter its usages. No. 13. p. 1861.

Click here to view a pdf copy of this documet : PDF Copy

William Fothringham and Colin Smith brought a reduction of the ejection of Andrew Langlands and Robert Craw, as deacon and treasurer of the Hammermen of Brechin, at Michaelmass 1774, upon the ground that they themselves were at that time respectively elected deacon and treasurer of the said corporation, and also an action of declarator of their own election as deacon and treasurer. Their summons, besides, concluded to have it found and declared “that those who had been admitted freemen of any of the six incorportions of the town of Brechin, and more particularly of the incorporation of hammerman, whether handycraftsmen of said incorporation or not, are entitled to all the rights and priviledges of any of the other members of said incorporations, and particularly to a voice in the election of the office bearers of said incorporations.”

The Lord Kennet, before whom this process came as Ordinary, pronounced 10th February 1776, the following interlocutor “Having considered the memorial for the pursuers, together with the memorial for the defenders, and proof adduced by the pursuers, sustains the defences pleaded for the defenders, assoilzies them from his process of declarator, and decerns, and finds expenses due to neither party,”

In a reclaiming petition it was argued for the pursuers, that by the set and constitution of the burgh of Brechin, there are six incorporations of trades, viz. weavers, hammermen, taylors, shoemakers, glovers, and bakers. That each of these bodies do annually elect a deacon and treasurer, and that the deacons are ex officio members of the town council. That a man may be a member or freeman of different incorporations, and may elect, or be elected into office, although not an actual handycraftsman, or though not bred to or practising the particular craft or trade which gives name to the incorporation. And that farther, every man, be his trade or occupation what it may, is entitled, if he be the son of a freeman, or if he marry the daughter of a freeman, to be received and to act in all respects as a member of the incorporation, to which his father or father-in-law belonged, at least if he reside and bear burdens within the burgh.

No charters or seals of cause by which these corporations were erected, are now extant. The immemorial usage and practice of the trades, joined with acts or regulations of the particular incorporations, are the foundations of this practice.

The practice itself is sufficiently established by the proof led in the present cause. Thus it appeared that a slater and a butcher were members of the incorporation of glovers; that a schoolmaster had been deacon of that incorporation; that a fishmonger was a member of the incorporation of hammermen; that a weaver, a shoemaker, a wright, and a carter, were members of the incorporation of bakers; that the carter, had been a deacon of that trade; and that a writer, was a member of the incorporation of taylors. An act indeed had been passed by the corporation of hammermen, of date the 17th October 1739, declaring that no person should be admitted freemen to the smith trade, unless he was an actual tradesmen. But this act proves that the anterior practice was to admit persons who were not actual handycraftsmen. The act also was only meant to affect the votes of such unhandycraftsmen as should be thereafter admitted, without depriving of their vote those who had been admitted already. Nor besides was it intended to affect such as were entitled to their freedom by being the sons or sons-in-law of freemen, and who accordingly continued to enjoy their full privileges notwithstanding the act. Supposing even the intention of the act to have been otherways, still it was not in the power of a few craftsmen who happened at the time to be members of this corporation, to alter its very constitution; at least it was not in their power to deprive of their privileges freemen already admitted, or to preclude the sons or sons-in-law of freemen from being afterward admitted, such persons having a right thereto de jure, and not one dependent on the will and pleasure of the corporation. At any rate, the successors of the members of 1739, were possessed of as ample powers as their predecessors, and that act is repealed and rescinded by an act of the incorporation dated 2d November 1770.

It was also urged, that however singular this usage might appear, it was very beneficial to the incorporation. Their charity funds were thereby greatly increased, without an equivalent increase of the numbers of their poor; as none but persons in easy circumstances ever think of paying for admission into a corporation, when they do not exercise its proper trade or craft. Without such a practice, besides, the corporations in this little town would be in danger of becoming extinct altogether.

For the defenders it was argued, that the act 1739 does not appear to have been in disuse, or tacitly repealed by a contrary practice.—The proof brought by the pursuers themselves resolves chiefly into an attempt to prove a kind of general practice in the other incorporated trades of admitting unhandycraftsmen, but by no means establishes that any such practice took place in the incorporation of hammermen, till within these few years past.

It is not to be denied, with regard to the act I770, that a corporation has power to alter former regulations, regarding its own police, provided such alterations are not inconsistent with the general law of the country, or adverse to the particular constitution of the corporation, and provided such alterations be made in a regular and proper manner. But that a salutary regulation, such as that of 1739, excluding unhandycraftsmen from the privilege of voting at elections, can be repealed by a meeting of such unhandycraftsmen themselves, whom it was meant to exclude, is altogether impossible. And yet from thus proof it appears, that the act 1770 was brought about in this manner.

It was observed from the Bench, that practices of this kind would wholly overturn the nature of corporations, and the Court accordingly (13th December 1776,) pronounced an interlocutor, “Adhering to the judgment of the Lord Ordinary.”

Lord Ordinary, Kennet. Act. Rae. Alt. Wright