Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. VI.

Powers, Duties, and Jurisdiction of Magistrates.

John Paterson and Others,
v.
The Magistrates and Town Council of Stirling, and the Corporation of Weavers in that Burgh

Date: 28 February 1783
Case No. No 107.

The Court of Session considered themselves empowered to change the hour and other circumstances of the public market of a royal burgh, in opposition to the regulations already established by the council of the burgh.

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By very ancient grants from the Crown, the town of Stirling possesses the right of holding weekly markets. For rendering this right effectual with respect to the selling and buying of yarn, the magistrates and town council, in 1687, and again in 1703, enacted, “That unfree and country weavers should not be permitted to buy any linen or woollen yarn to be brought to the burgh for sale, except upon the public market place, and after eleven o'clock forenoon each market day.”

In 1715, the country weavers, in a process of reduction of these acts, obtained a decree of the Court of Session in their favour, changing the hour of the market from eleven o'clock to nine in the morning.

In 1777, Paterson, and others of the country weavers of Stirlingshire, instituted an action of reduction of that decree; in which they insisted for the unrestrained freedom of buying yarn in the market, each market day at any hour of the day, and likewise demanded that the burgesses and inhabitants, as well another persons, should be prohibited from purchasing yarn except in open market. The burgh, at that period, having been disfranchised, the parties called as defenders were certain temporary managers of the community, together with the corporation of weavers.

On report of the Lord Ordinary, the Court pronounced the following interlocutor. ‘The Lords find, That the public yarn market of the burgh of Stirling shall, from the 15th day of April to the 15th day of August yearly, begin and open at the hour of seven in the morning; and from the 15th day of August to the 15th day of April yearly, at the hour of nine in the morning; and in time coming prohibited and discharged all the lieges, freemen as well as others, from purchasing yarn on the market days, but upon the public market place, after the market is begun and opened, as aforesaid, and not before; and decerned and declared accordingly.’

The cause having been appealed by the defenders to the House of Lords, was, by that High Court, remitted to the Court of Session, on purpose, that when the burgh should be restored to its privileges, the proper magistrates might be cited as parties. On the consequent renewal of the action, it was

Pleaded for the defenders: By royal grants this community has obtained the right of holding markets; for effectuating which privilege they are entitled to enact by-laws and regulations. Immemorial usage and possession have placed that authority beyond the reach of challenge; and thus a right of property has been established, not to be violated from any notions of expediency, however urgent. A corporation surely, not less than an individual, may acquire a right; nor is there in the nature of that question any thing to hinder its acquisition. If it be a restraint upon commerce, it is not more so than what is occasioned by various privileges bestowed both on individuals and on corporate bodies; 14th January 1747, Corporation of Mary's Chapel contra Kelly; No 64. p. 1931; Taylors of Perth against Lyon, No 71. p. 1947. Should it be objected, that the powers of the Court are as ample now as they were in 1715, when they decreed an alteration in this matter, that indeed were not to be denied; but if in any case an unconstitutional authority has been usurped, it ought not to be followed as a precedent.

Answered: The grants or charters founded upon by the defenders, authorise not, in any degree, the arbitrary privilege which they now claim. Nor, though it be admitted that they have, independently, a right of framing by-laws and rules for the government of the market in question, will it follow that any specifical ordinance thus introduced can acquire, by lapse of time, the stability of a right of property secured by possession, or by prescription. Adapted to the exigence of times and occasions, such regulations, from their very nature, can never be permanent, but must suffer change, according as the manners, the customs, or the ideas of mankind vary. Not the length of the period during which a political institution has subsisted, but the expediency and benefit of the measure itself alone, are the ground of its stability. The long duration of a grievance is a reason for bringing the more speedy relief. Indeed, the evil against which the pursuers contend, is one that the legislature has already provided redress of. It is that of forestalling markets; for the object of the defenders, is to buy up the best part of the commodity in question before the market be open for the pursuers; a proceeding contrary to law; Leges Burgorum, cap. 16. et seq.; act 21. Parl. 4. James V.; act 150. Parl. 12. James VI.

The Court considered themselves as empowered to decree such alterations in the state of this market as seemed suited to the circumstances of the case. They now adopted their former interlocutor, settling the hour of market, and prohibiting, without any exemption whatever, the buying of yarn, except in the market place. See Jurisdiction.—Court of Session.

Reporter, Lard Westhall. Act. Henry Erskine. Alt. A. Abercromby. Clerk, Home. Fol. Dic. v. 3. p. 102. Fac. Col. No 102. p. 161.