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SCOTTISH_HoL_JURY_COURT

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(1715) Robertson 124

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 31.

The Corporation of Butchers in Edinburgh, Appellants

v.

The Magistrates of Edinburgh, and Corporation of Candle-makers there, Respondents

29th June 1715.

Subject_Burgh Royal. —

The Court of Session having found that the butchers of Edinburgh should be restrained from rinding tallow for sale, and that the magistrates could oblige them to sell their tallow at a certain price to the candle makers, which was in terms of a bye-law of the magistrates, ratified by a private act of parliament the judgment is reversed.

Subject_Act of parliament 1540, c. 123. —

This act was not sufficient to restrain the butchers from melting or rinding their tallow.

1424, c.32.

1540, c.123.

By an act of parliament 1424, c. 32. it is enacted, “that na Taulch be had out of the realme, under the paine of escheitte of it to the king.” By another act of parliament 1540 c. 123. it is enacted, “that na maner of man, fleschour nor others, to burgh nor to land, take upon hand to rinde, melt, nor barrel tallun, under the paine of tinsel of all their gudes.”

The magistrates of Edinburgh, by a regulation or bye-law, dated the 15th of September 1517, discharged all the inhabitants of the burgh, other than the candle-makers from melting tallow or making candles, except for their own use and to burn in their own families. By another regulation or bye-law, dated the 10th of October 1551, the magistrates ordained, that no butcher or other person within the said burgh, Should fell any tallow to strangers or inhabitants of other towns, but to the neighbours and candle makers thereof and that no freeman, other than the candle-makers, by themselves or Servants, Should melt any tallow for making of candles, beyond what they made for their own use, under the pain of escheat thereof, payment of 5 l. to the common works, and banishing the town. King James the 6th, on the 4th of May 1597, by a ratification of privy council, and a grant under the great Seal, not only ratified the said acts and ordinances of the magistrates, but all such further rules and constitutions as Should be thereafter made in favour of the candle-makers.

By another regulation or bye-law, dated the 27th of September 1693, magistrates ordained, “that the price of rough tallow Should not exceed 48 Shillings Scots per stone, and that the price of candles Should be 58 Shillings Scots per stone; and

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that the butchers of Edinburgh, and others, should fell all their tallow to the candle-makers, and to no one else till they were Served, on pain of forfeiting their goods, and such further penalties as the Said magistrates should think fit to inflict: And that for the future, all the country butchers bringing meat to Edinburgh on the market days, should be obliged to bring in their rough tallow to be Sold on the Said market days to the Said candle-makers and burgesses, and to no others till they were Served, under the Said penalties.” The magistrates also revived, a former bye-law, bearing date the 17th of October 1684, imposing a fine of 20 Shillings upon the transgressors. And all these regulations and bye-laws, with the ratification under the great Seal before-mentioned, were ratified and confirmed by a private act of parliament on the 17th of July 1695; but this (the appellants state) the magistrates and candle-makers did not, till very lately, put in execution.

Entered, 11 May, 1715.

The appellants, however, refuting to Sell their tallow to the respondents the candle-makers, at the rates mentioned in the foresaid bye-law, the magistrates, in June 1714, ordained a fine of 20 Shillings sterling, to be levied upon all persons refusing to obey the Same. The appellants, thereupon, commenced an action of reduction and declarator before the Court of Session, against the respondents, concluding, that the acts and regulations before-mentioned, and all other acts, bye-laws, and ordinances whereby any restraint was laid upon them as to the price and manner of disposing of their tallow should be reduced and made void; and that it might be found and declared, that they had right to sell their tallow rough or rinded to any persons whatsoever, without distinction; and to rind and export the same to England, or else where as they should think fit. The respondents brought a counter action of declarator against the appellants, to have it decerned and declared, that the appellants had no right, and ought to be discharged to melt down any tallow, or fell the Same to any other person, till Such time as the respondents and other free burgesses and inhabitants of the burgh should be Served ; and that the appellants ought to Sell their tallow at the rates and prices Set thereupon by the magistrates, according to the laws and ordinances made by them. Both these actions being heard, the court, on the 15th of February 1715, “found that the appellants ought to be restrained from rinding of tallow for sale, and also found that the magistrates and council of Edinburgh could oblige the appellants to sell their tallow to the candle-makers, at a price to be put thereupon by the magistrates and town-council.” The appeal was brought from “an interlocutor, sentence, or decree of the Lords of Council and Session, made the 15th of February 1715.

Heads of the Argument of the Appellants.

The old laws with respect to the restraint of exposing the native produee of the kingdom are much altered by the increase of trade, having since learned by experience that any small inconvenience

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particular persons might Suffer by paying a little more the home product, is much more than compensated by the advantage which the nation in general, and the crown, reap by the exportation of Such commodities into foreign parts. Although by Several old laws fish was prohibited to be exported, yet in after times fish was not only allowed to be exported, but a premium given for the export thereof both before and Since the union. And this is the very case, as to the old laws prohibiting the exportation of tallow, which by degrees became obsolete and in desuetude, tallow being now a staple commodity, and since the union expressly allowed to be exported. The act against the melting, rinding, and barrelling of tallow, was only to prevent the exportation; and when that act was in force it extended generally to all men, butchers and others, and So comprehended even the candle-makers themselves, and all persons making candles for their own use; which plainly infers, that it must be meant only of melting, &c. in order to export it, and So falls in consequence with the prohibition of exporting it.

The Several acts, ordinances, or bye-laws of the magistrates and town-council, and particularly that in 1693, whereby any restraint was laid upon the appellants as to the price and manner of their disposing of their tallow, ought to be rescinded and declared void and null in themselves, for the Several reasons following, viz.,

1. For that the laying Such a restraint was against the common Tight of the Subject, both buyer and feller, destructive to trade, and an unwarrantable and unprecedented imposition, not only upon the appellants, but upon other free Subjects who must be furnished in publick markets, and cannot otherwise have an opportunity of buying tallow for their respective uses: And if this bye law Should be binding, it would be a precedent to the magistrates of other burghs to make the like regulations, which would be a manifest grievance to all such subjects as are not free of those burghs.

2. For that the giving the candle-makers such a right of preemption, tended manifestly to a monopoly, and gave them power to impost upon their fellow subjects such rates for their tallow as they thought fit.

3. For that the said act or bye-law of the magistrates in 1693, was not only contradictory to their former bye-law in 1551, which allows the sale of tallow to all the neighbours of the burgh, without any restriction to burgesses only, but is wholly partial in favour of the respondents, the candle-makers and themselves, by excluding their neighbours of the former benefit of buying tallow for their own use within the said burgh, as before they might.

4. For that the said bye-law is incoherent and impracticable in itself; for how can the appellants know when the candle-makers and other burgesses are all served; or how is it possible to distinguish between a burgess, and an inhabitant that is not a burgess.

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5. For that Such an ordinance or bye-law is manifestly inconsistent even with the British acts since the union, which allow all Subjects in general to make candles for their own use, paying the duty imposed thereon. And if this bye-law should take place, this privilege of making their own candles would, in many respects, be rendered ineffectual to all Such persons as are not burgesses, or at least they would be under Such inequalities and inconveniences as the law has no where laid upon them.

6. For that these bye-laws are unequal and unjust, Since there no obligation laid upon the respondents, to take all the appellants' tallow off their hands at the rate therein prescribed, whereby the appellants (if this bye-law shall be allowed valid) will be put under this insuperable disadvantage, that when they have kept their tallow till the candle-makers and burgesses are Served, it is still optional to them to buy or not, as they think fit. And indeed, if they can have their tallow from the country, as it is well known they may, they will not, and need not, buy it from the appellants, but the appellants' tallow must be upon their hands till it be useless, if they cannot export it as other Subjects do, or otherwise they will be obliged to Sell it at Such a price as the respondents will please to give for the same; and more especially if they should be restrained from rinding it, without which it will putrify, and be of no use in less than two days.

For that the magistrates, as they have not a power to restrain the appellants from felling their tallow to any person that wanted the fame, So they have no authority to Set a price thereon by any bye-law. For although the magistrates may Set prices upon victuals, as bread, ale, &c. with which the inhabitants must necessarily be furnished within the burgh, yet they have no power to Set prices upon any original commodity, as tallow, no more than upon wheat, barley, hides, wool, &c. and the acts of parliament, whereon they found their pretended authority, relate only to victuals, or Such other things as are therein expressly named: and the giving Such a power to magistrates of burghs, to Set prices upon tallow, hides, and other original commodities, would prejudice the gentlemen of landed property, since it might in a great measure tend to lessen the value of their estates.

As to the act of parliament in 1695, whereby the bye-law of 1693 was ratified, Such acts of ratification are passed of course, (as this was without calling the appellants) and by the laws of Scotland have never been reckoned of any importance, for, if the ordinances or bye-laws which are So ratified be void in themselves, the ratification will give no Sanction thereunto; and the custom of Scotland provides against such ratifications, where parties are neither heard nor called by an act designedly made at the end of every session of parliament, the act Salvo jure Cujustibet. The last part of this very bye-law, whereby the country butchers who brought meat on the market days, were enjoined to bring in their rough tallow to be fold on the said market-days to the candle-makers and burgesses, was in 1693, notwithstanding such ratification, rescinded by the privy council, and declared to be an abuse;

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and the appellants have reason to believe that if they had complained at that time, the said bye-law, as to them, would have met the same fate.

The respondents objected, that they were bound by their oaths to obey the ordinances of the magistrates, but the appellants are not bound by their oaths to observe any ordinances which are illegal and unjust in themselves. The respondents objected likewise, that the appellants would raise the price of candles in case these ordinances were not observed by them; but this was started only to incline the members of the College of Justice to favour the respondents. For although the appellants should demand exorbitant prices, the candle-makers would be under no necessity of buying from them, but could, and no doubt would, furnish themselves from other places, as every person knows they might; And thus, it would be in the power of the candle-makers to ruin the butchers at pleasure.

Heads of the Respondents' Argument.

The statute 1540, c. 123. whereby the appellants are expressly forbid to melt tallow, is not in desuetude, and there have been continued prohibitions with regard to the appellants' felling tallow till the respondents and other burgesses be first served, neither are these prohibitions inconsistent with the privileges of the staple, because the appellants were to furnish the respondents with their tallow for the use of the inhabitants, and the surplusage might be exported. Nor does the treaty of Union unhinge the privileges of burghs, or make void their regulations upon their lesser incorporations, which are for the good and service of the inhabitants and other lieges; and the general freedom of trading agreed to by the Union was never meant to lay open, destroy, or overturn the laws, ordinances, or constitutions of the burghs.

1540, c. 100.

1551, c. 23.

1555, c. 57.

All burghs by their charters of constitution have power of making by-laws or ordinances amongst the Jester corporations, as may be for the benefit and advantage of the whole, by regulating the Subject of trade belonging to each corporation, viewing the markets and ordering the prices of vivers: and the observing and exercising that power is recommended to the magistrates of every burgh by Several statutes ordaining them to set reasonable prices upon wine, fait, timber, &c. In pursuance of these laws the magistrates of Edinburgh have been in the constant practice of regulating the prices of such things within the city as they judged necessary for the common good, and particularly that of tallow, which has been ratified and confirmed by King James the Sixth in 1597, and by King William in 1695. Neither is the trading in tallow properly the appellants' employment; the respondents, the candle-makers, being a corporation specially constituted for that effect; and as the subject of their trade within burgh comes from the hands of the appellants, it is most just and reasonable, that that subject should be regulated by the magistrates, lest it should be in the power of one incorporation entirely to disappoint the trade of another, to the great prejudice of the lieges; and

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the magistrates have always been so careful of the appellants, that they annually rate the tallow higher or lower according to the prices of cattle, of which they are fully apprised before they make any ordinance concerning the same.

15 Sept. 1517.

10 Oct. 1551.

That which has been the practice of the appellants for near 200 years, as appears by the ordinances of the city council, is still practicable; and all that is required by these by-laws, is, that the appellants be obliged to sell their tallow to the respondents when they demand the same at the rates fixed by the city laws, by which the price of candles is also to be regulated. As to the inhabitants, not free-men burgesses, they were never restrained from buying, only that it should not be pretended and used by the appellants as a handle to alter the privileges of the respondents.

1540, c. 100.

1555, c. 57.

The distinction which the appellants contended for, between raw and manufactured articles, is contrary to the statutes empowering the magistrates of every burgh to set a price upon timber, which is not supposed to be manufactured; and if the magistrates have a power of rating candles, (which is not denied,) the same reason will hold as to tallow, because the regulation upon candles follows in proportion with the regulation upon the tallow; and if the price of tallow be not regulated, neither ought the price of candles, by which the city will suffer a considerable prejudice.

Judgment, 29 June 1715.

After hearing counsel, It is ordered and adjudged, that the interlocutory sentence or decree in the appeal complained of, whereby the Lords of Session found, “that the appellants ought to be refrained from rinding of tallow for sale,” and also found, “that the magistrates and council of Edinburgh can oblige the appellants to sell their tallow to the candle-makers for making of candles to be consumed in the town at a price put thereupon by the magistrates and town council,” be reversed.

Counsel: For Appellants, Spencer Cowper. Rob. Raymond.
For Respondent, J. Jekyl. W. Lechmere.

1715