Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. I.

Set of Burgh.

William Chalmer of Easter Dalry, Deacon of the Incorporation of Surgeons,
v.
The Lord Provost, Magistrates, and Town-Council, of the City of Edinburgh

Date: 24 July 1782
Case No. No 15.

The presenting and receiving of deacons in council, was found not requisite, by the set of the burgh of Edinburgh, in order to entitle deacons of crafts to be members of the convenery.

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Upon 15th September 1781, Mr Chalmer was unanimously elected deacon of the surgeons, had the oath de fideli administered to him, and entered into possession of the office. Upon the following Wednesday, being 19th September, the deacons of the different incorporations were, agreeable to the set and usage of the burgh, presented to the town-council; and such of them as were present, had the oaths of counsellors, and the oaths to government, administered to them. Mr Chalmer being indisposed, was unable personally to attend; but an extract of his act of election was produced, and no objection made to it.

Upon Thursday, 20th September, there came on in the convenery the election of a deacon-convener; and at this meeting there were present the fourteen deacons of crafts, the two trades-counsellors, and together with these, the deacon-convener of the preceding year, who, as such, had undoubted right to a casting voice in the event of an equality of votes.

The candidates for the office upon this occasion were, William Fraser, deacon of the hammermen, and the said Mr Chalmer, who, in order to shew his right to be held a member of the convenery, produced the extract of his act of election as deacon of the surgeons, and a certificate of his having since that time taken the oaths to government before one of his Majesty's justices of the peace for the county of Edinburgh.

On the part of Mr Fraser it was objected, That as Mr Chalmer had not been presented to, and received by the town-council, as deacon, so he had no legal right to be held a member of the convenery, and could not be upon the leet for the office of convener. Mr Chalmer, however, proceeded to act and vote; and, by including his own, the number of votes in his favour being equal to the votes for Mr Fraser, the matter came to be determined by the casting voice of the former deacon-convener, who gave it for Mr Chalmer.

Afterwards Mr Chalmer, upon appearing before the town-council, was received as deacon, and took the oaths in the usual manner, under protest, however, that his doing so was not necessary in order to give him right to be a member of the convenery; and both he and Mr Fraser having severally claimed to be received and qualified by the council, as deacon-convener, each alleging that he had been elected by a legal majority of the convenery, the council gave their determination in favour of Mr Fraser, who was accordingly received, and had the oaths administered to him in common form.

Mr Chalmer brought this determination under review, by bill of suspension, which having been passed, the Lord Ordinary took the cause to report; and it was argued at great length in informations.

Upon the part of Mr Fraser, it was contended, That the deacons form a part of the town-council, and are subject to its authority; that the council give out a short leet of three, out of which the deacon of each incorporation is chosen; that the deacon, when elected, must be presented to the council, and by them be authorised in his office; that by the set of the burgh, given by the decreet-arbitral of King James VI. in 1583, it is specially provided, that “upon the next counsel day after the election of deakens, the auld deakens, with some of the maisters of their crafts, sall present the new deakens to the counsel, quha sall authorise them in their offices;” that agreeable to this, a deacon, till so authorised, is not entitled to act as such, or to sit and vote in the convenery; and that as in this case, Mr Chalmer was absent when he should have been presented to the council, and authorised in his office, so in that situation he was not entitled to vote in the convenery, or to stand candidate for the office of convener.

To these arguments it was answered, on the part of Mr Chalmer, That the office of deacon was originally altogether unconnected with the town-council; that although deacons came afterwards to form a part of the town-council, yet this did not vary their original and separate capacity as heads of their several crafts; and that although it be requisite to present the deacons in council, in order to their taking the oaths as counsellors, and to their being received and authorised in that character, yet no such form was ever supposed necessary to entitle them to act as heads of their several crafts, and as members of the convenery. To make out this, a long historical deduction was given, which in substance was as follows.

The original institution of deacons was merely for the purpose of regulating craftsmen in the exercise of their trade, and checking any abuses they might commit to the prejudice of the public. For a very long time, the deacons of crafts formed no part of the town-council of burghs; the election of the magistrates and council, till the year 1469, being annually by a poll of the whole free burgesses, as may be seen from the Leges Burgorum, c. 77. and the Statuta Gildæ, c. 33. 34. and the deacons of crafts being entitled to nothing more than their privilege, like every other burgess, of electing or of being elected into the office of magistrate or counsellor. The Connection between deacons and the town council of burghs took its rise from the remarkable change introduced by the act 1469, c. 29. which made the form of election aristocratical, in place of democratical, and appointed that the old council should chuse the new council; and that the old and new council, together with the deacons of crafts, should chuse the magistrates. In this manner deacons came to have, ex officio, a share in the government of the burgh; and besides being the head of his incorporation, entitled to preside in their meetings, and to exercise his authority over the members of his craft, a deacon had now conferred upon him the new and additional character of being a constituent member of the town-council.

From all this it was contended, That the office of a deacon, as chief officer of his incorporation, was quite distinct and separate from his character as a member of the town-council; and that the additional capacity of counsellor made no variation upon the rights and privileges of the more ancient and separate office of deacon. With regard to the set 1583, about presenting and authorising deacons in council, it was observed, that it entirely related to the capacity of the deacon as counsellor. As he was to be a counsellor as well as deacon, it was proper his election should be certified to the council, and that he should be presented, in order to his being received at the council-board; and by authorising him in his office, nothing more was meant, than the admitting and administering the oaths to him as counsellor. Before being presented, he was already elected deacon, and the council had not any right to reject him, or to put a negative upon the choice made; all that they had to do being nothing farther than the mere ministerial power of admitting him as counsellor, and administering to him the oaths taken by counsellors. With respect again to the convenery, it was shown to be a meeting composed of the deacons themselves, not in their character as counsellors, but in their distinct original capacity, as heads of their several crafts; and therefore the being presented and received in council was not requisite, in order to entitle a deacon to be a member of the convenery.

The Court had no difficulty in finding the determination of the magistrates and town-council erroneous: They therefore, “suspended the letters simpliciter, and found expences due.”

Reporter, Lord Kennet. For Mr Chalmer, Cullen, Cha. Hay. For the Magistrates, Buchan-Hepburn, Blair. Clerk, Colquhoun. Fol. Dic. v. 3. p. 99. Fac. Col. No 58. p. 92.