United Kingdom House of Lords Decisions

The elaborate opinion of the Lord Justice-Clerk in favour of the Company was substantially as follows:—

Lord J.-Clerk's opinion.

The interlocutor under review might sanction a great number of exorbitant exactions, if there be any foundation for the allegations made as to other burghs. Certain views and arguments, drawn from the law of England, have been pressed. But the Scotch counsel who argued before us were not able to make me understand the law of England as to toll thorough, and toll traverse. So far as I collected any distinct apprehension of some of the English doctrines, it was clear that that law had no analogy whatever to anything in the law of Scotland.

There is often in the very nature of the grant, or of the character and object of the exaction, something which may denote that the custom was given for a particular and limited purpose; and which, therefore, will restrain the exaction whenever it is not in conformity with that purpose. It may appear that the custom is exigible only when a certain market is used, or when certain streets are passed through. A demand from persons not using the market, or not passing through the streets, would be beyond the scope of the custom. Lord Justice-Clerk Macqueen, in an opinion printed in the recent case of Wigton, stated the law of Scotland to be “That the Crown has no power to impose taxations, either in favour of the Crown itself, or in favour of third parties, whether individuals or communities.” Nothing less than the authority of Parliament will do. This leading principle of our law seems quite sufficient, without resorting to any doctrine of the law of England. But there is another principle which has been lost sight of. In the Lauder case, Lord Monboddo's report states, that “all the lords were of opinion that prescription could take no place; because prescription was between man and man, by which one lost and another gained, but could have no place where so many were concerned; but they thought that immemorial custom would take place here, so far as to explain the grant to the town, but only with this proviso, that the custom was not contrary to law, and the good policy of the kingdom.” The rule, that prescription does not apply in such a case, and that the value of usage is only to explain, clears this case from all doubt. It leads to the important qualification, that the “custom levied be not contrary to law, and the good policy of the kingdom.” But this implies that the usage must be fairly within the scope of the grant, and not of a kind beyond it. The subject matter of grants to royal burghs was generally petty customs, market dues, port customs, or tolls on the proper traffic of persons residing within the burgh, or of persons entering it for traffic there; designed to raise a fund for keeping the peace, maintaining its streets, markets, and gaols, &c. The produce was never

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very great. Now, as usage can only explain this grant, as it can confer no right by prescription, if the usage be beyond the scope of the grant, it is then an illegal usurpation, and whether long submitted to, or not, is of no avail. The argument of the Magistrates assumes, that wherever there is a grant of customs, every thing that has been levied becomes a legal exaction after forty years. That assumes that prescription applies to the case. From these remarks it will be seen, that I could not have concurred in the interlocutor of the Lord Ordinary, which, though not using the word prescription, practically makes the case one of prescription, and puts it exactly in the form which an ordinary case of prescription would assume. The charter of Robert II. is as short as any to be found. There are no general comprehensive words, expressive of the importance and expense of the place (a very small burgh at all times), as in grants to Edinburgh; and the terms are the small customs expressly. These small customs have been uniformly distinguished from the great customs—intended to create a revenue for the Crown. The duty claimed is a general tax, having no reference to the traffic within burgh, and having no connexion with the small customs of burghs which are given by the grant. And as Linlithgow was on the only great road between the east and west of Scotland, it would have been, according to the magistrates' present contention, a tax on most of the inland trade of that part of Scotland. To the ratification of 1661, I attach great importance. The Supreme Court had pronounced a judgment ^(a), rejecting the claim of this very burgh, under the former grants, to toll on goods passing through it. The small tolls alone are given by the ratification. I think it manifest that the transit duty was not, and could not have been intended to be sanctioned. A solemn judgment had rejected the claim now brought forward, and restricting it to ordinary small customs. Then the ratification is confined to those small customs. How can the burgh after that appeal to any possession in support of the large and general tax now demanded? In my opinion the judgment in the Fleshers' case is of great weight and authority. The burgh itself raised the question, and the result was an order interdicting the levying of this transit custom on the goods of the fleshers. Yet, by the interlocutor under appeal, the whole cattle of the fleshers will be subjected to tax. The principle of the Fleshers' case has not been disturbed; nor has it ever been decided that the lieges have not a right to pass free from exaction along the King's highways and streets. But the question is, can this burgh, after this judgment, claim the toll in question? In the Lauder case it was held that prescription could not apply; and that by mere usage a burgh could not acquire a right. The other cases seem to me to have no application. In the Ayr case, the duties claimed

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( a) In the Fleshers' case.

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came within the range of duties claimed at a free port. In the Wigton case, there was an express grant. In Boyd v. Haig, the question turned on a claim of exemption. There was no controversy as to the legality of the exaction. The burgh now by their new averments have been at great pains to show that they repaired the streets from 1631. But all burghs royal are bound to keep open streets for the public. But there is another ground for assoilzieing the Company. They have obtained an Act of Parliament, after all the usual notices, for making and constructing this most peculiar sort of way, exclusive of general resort, over the territory of the burgh. They have purchased all the ground which they were empowered to take from the private parties holding burgage, and paid for it. The small portion they acquired from the Corporation they also paid for. Neither was this small portion any part of the burgal lands, but had been acquired by the burgh tanquam quislibet ^(a). This power of making their railway through the burgh the defenders received absolutely from Parliament, without condition or burden. Such being the power given, and such the right conferred, I am of opinion that the claim of the burgh is entirely excluded.

Lord Cuninghame, likewise, in favour of the Company, significantly observed that—

Ld. Cuninghame's opinion.

The charter of Robert II. was not a grant of tolls on the transit of goods. The magistrates, however, constructed a table whereby they extended their dues to goods in transitu—thus attempting, like all other bodies of their class, to enlarge their dues, and make them as comprehensive as possible. It is this mode of rearing up a title (by means of a table framed by the Corporation itself), which raises the difficulty in the present discussion. The table imposed “on each load passing ordinarily through the town,” 8 d. scots, i. e., little more than two farthings sterling, a rate so trifling as to be more likely to be conceded than resisted by poor carriers and others.

Lord Murray was no less clear to the same effect; for, said his Lordship,

Lord Murray's opinion.

None of the statutes, or institutional writers, which have been referred to recognise any right in the Crown to levy customs on goods passing along the king's highways; but such highways are declared to be free from all obstruction ^(b). Grants to royal burghs

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( a) These details it will be difficult to collect from anything appearing in the cause.

( b) Lord Murray cited the Regiam Majestatem, B. 2, c. 74; the Act 1555, c. 54; the Act 1592, c. 156; Stair, B. 2, T. 7, § 8; Bankton, B. 2, T. 11, § 28; and Erskinc, B. 2, T. 1, § 17. Balfour's Treat. on Customs, p. 83.

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of small customs and tolls were usual, and the levy was made at a booth erected in the market-place. Hence Ross, in his Lectures ^(a), observes: “The tolbooth was no other than a temporary hut of boards or planks erected in fairs and markets, in which the customs or duties were collected, and where such as did not pay were confined.” The tolls or small customs levied at these booths were certainly not tolls or customs on the passage of goods, but small payments on sales made in market. Attempts were sometimes made to levy them on the mere passage of cattle through the town; but that was held to be illegal, unless for repairing the road, in which case a corresponding advantage would arise to the public. A common principle seems to have ruled the English and Scottish decisions.

The last opinion is that of Lord Robertson, who remarked that, by the charters,

Lord Robertson's opinion.

There was no express grant of duties on goods earned through the town. No usage, beyond the terms of the Table, was alleged. Neither was it asserted that duties were paid on goods carried in stage-coaches; though these must have been in use much more than forty years. It was admitted that there had been no usage of exacting duties on goods carried through by railway, such mode of conveyance being unknown until the line was established. The streets of Linlithgow were of as little use to the Company as if the railway passed underground.

Such are the recorded sentiments (by necessity reduced and compressed) of the Scotch Judges, on this the first branch of the cause.

Branch II. Bridge Customs.

We now proceed to the second branch, which relates to what are called the Bridge Customs of Linlithgow. The argument with reference to these “bridge customs” involved considerations very different from those which belonged to the first branch of the cause. And this need not be wondered at; for the subject-matter in dispute was different; the allegations were different; and the documents and evidence were different. In short, the two branches of the cause, though blended in the same suit, had very little in

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( a) Vol. i. p. 319.

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