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The Town of Edinburgh and Hay their Collector v Russel, Fulton, and other Merchants. [1708] 4 Brn 707 (26 June 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Brn040707-0206.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Town of Edinburgh and Hay their Collector v. Russel, Fulton, and other Merchants
Date: 26 June 1708
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Hay having charged them to pay a merk upon the ton and pack of all goods brought from England to Leith, conform to a charter from King Charles the First in 1636, gifting that imposition to the Town for paying their debts:
Alleged,—By the articles of the Union, a communication of the trade being introduced, the said taxation falls; the English goods can pay it no more than Scotch. 2do, It is against the claim of right, declaring all such gifts, without consent of Parliament, null.
Answered,—All private rights, especially those of the royal burghs, are expressly reserved by the articles of the Union, so that a free trade betwixt the two nations can never take away this right from the Town: and my Lord Godolphin, Lord Treasurer of Great Britain, having, at the desire of the Magistrates of Edinburgh, consulted Sir James Montague, her Majesty's Solicitor-general, on this point, he has given his opinion in writing, under his hand, That the Town of Edinburgh has as much right to it, notwithstanding of the articles of the Union, as the City of London has to their duty of scavage and package, which they still exact from the Scotch ships.
Replied,—That Carlisle might have as well continued the exacting their custom upon our black cattle, imported that way to England; but they, finding it at an end by the Union, applied to the Parliament of Great Britain, and got an equivalent for making up their damages; and the Town of Edinburgh's gift must vacate the same way, and there is room for applying to get an equivalent in place thereof; and Montague his opinion is no more than if any of our lawyers should assert it; neither has the fact been truly stated to him. And the Town's possession these sixty years bygone signifies nothing, for no prescription runs against fundamental laws founded on public utility and the rules of government; as was found in that famous decision, January 1681, Jack against the Town of Stirling. And none will call English goods foreign now, which is the words of their gift,—Of all foreign commodities imported intra fines regni Scotiœ: the limits betwixt the two nations are now ceased, the wall of division is broken down, and so they can be no more burdened with this merk upon the ton.
The Lords considered this struck deep; for, by the same arguments, the Town's imposition of two pennies on the pint of ale might be quarrelled; though they wished the Town might apply for an equivalent; therefore they ordained it to be heard in their own presence.
