Scottish Court of Session Decisions

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
v.
The Country Brewers

Date: 16 July 1712

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By a charter, granted to the Town of Edinburgh by King James VI. in 1603, the magistrates are empowered to exact at their ports, on all ale imported from the shire, for a burden carried on a man's back, four pennies Scots; and for a load on a horse's back, eight pennies; and, by their golden charter in 1636, they are entitled to uplift all the petty customs they have formerly been in use and possession of, for mending their causeways, and supporting the other exigencies and incident charges the government of the town requires; and both thir charters are ratified in Parliament, and clad with immemorial uninterrupted possession. But the way of vecture and carriage of the barrels of ale into the town being altered from what it was the time of those gifts; which was by horses, on each side of which a four-gallon barrel was put, so that eight gallons paid eight pennies; but now, the way of importing ale is upon sleds and stypes, whereon the brewers put two nine-gallon trees, which is more than double what of old they imported on the horse's back. And the Town, by a table affixed by Thomas Fisher, their chamberlain, having augmented the duty, conform to the quantity of ale imported in the sleds, the brewers reclaimed; alleging it was an unwarrantable exaction in the Town to augment their customs, contrary to their own charters, which limit them to eight pennies on each horse-load of ale. And though the manner of the carriage be now different from what it was then, yet that can afford no pretext to alter and raise the duty; seeing their gift does not relate to the quantity of the liquor imported, but only to the loads. So, whether it be imported on a horse or a sled, the Town can crave no more than what they have these forty years bygone exacted at their ports, which never exceeded eight pennies. And, by Act 46th, 1491, and Act 54th, 1587, all customs are discharged to be taken at boroughs but conform to the old law, under the pain of being punished as oppressors. And, to apply this to the present case, the brewers subsume, that, to raise the duties effeiring to the greater quantity of gallons imported, is plainly a new excise, contrary to their gift and constant use and possession, and condemned by the common law and the practice of all well-governed nations; for the instituting of tolls, tributes, and customs, is de summo imperio et inter regalia reservata; and both sovereigns and statesmen are so jealous of this prerogative, as one of the pearls of the crown, that subjects, exacting tolls at their own hand, have been found guilty of treason; as in the case of Patrick Earl of Orkney in 1616, and others; and the lowest that politicians go, is infamy and pecuniary fines. And that it is de reservatis imperii, by the Roman law, see tit. D. de Publicanis et Vectigalibus, and tit. Cod.—Nova vectigalia institui non posse inconsulto principe. And, by the feudal law, Sextinus, de Regalibus, lib. % cap. 6, num. 14, proves it. And, as to our own law, Craig, lib. 1. Dieg. Ult. is clear. So that use and custom is the only rule and standard of such exactions, and they can neither be augmented nor altered without the royal authority; this introducing a new burden on the subjects against their natural privilege of freedom and immunity: and such grants must be strictly interpreted, and not to be extended de casu in casum, or to things of a light nature, as Voet observes that leges vectigalia imponentes non sunt extendendce ad res similes iis quce in catalogo rerum vectigali obnoxiarum continentur. And, therefore, the gift, speaking only of a horse-load of ale, can never be extended to the number and quantity of the barrels; but whatever a horse and a sled bring in, though more than formerly, cannot be taxed beyond the eight pennies. And to augment it by the gallons imported, and that because eight gallons then paid eight pennies, therefore sixteen gallons now must pay sixteen pennies, and so on, is a bold extension of their gift, and a new exaction at their own hand with a witness.

Answered,—The Town is well founded to raise the custom by the quantity of liquor imported, without regard to the ancient way of portage by horse-loads, when sleds were not used; for how could these petty customs be granted in 1603, but according to the use of vecture and carriage that was then in fashion, which was on horses' backs? And, therefore, to change the manner of importation to sleds, which carry twice as much, and yet to offer only the old duty, is fraudem legifacere, and can never be allowed to diminish or frustrate the imposition; so the quantity of the gallons must be the only rule: if eight gallons must pay, ex concessis, eight pennies, then, by a necessary consequence, sixteen gallons must be the double; and this is neither an alteration nor augmentation of the duty. If the Town exacted eight pennies for a four-gallon tree, that would indeed be an unwarrantable augmentation: but that is not so much as pretended;—so all their clamour and noise falls to the ground, and their Latin citations and texts of law, and authors, is only an empty flourish. Suppose they should bring in 20 or 30 gallons on a waggon, how unequal were it that they should pay no more than the brewer who imports only eight or nine gallons at a time ! If one have a stronger horse, or a greater machine than his neighbour, and so imports more ale, and yet pays no more than he who imports the lesser quantity, he may certainly undersell all his neighbours considerably; which were an absurd inequality: and sure neither King nor Parliament ever dreamed, that, by changing the load to a sled, the duty should either be diminished or evaded.

The Lords found the Town's gifts were a sufficient title for them to impose thir small duties upon loads and burdens of ale, for maintenance of their causeways and other incident charges; and that carriages by sleds, not being then used, but of late practised for bringing in ale, the Town can transfer the duty from the loads to the sleds, and can exact eight pennies on each nine-gallon tree so imported, providing it do not exceed two pence for any draught, though never so great; that being the duty shod carts pay, because they break the causeways more than other carriages do: and found the Town's exacting a less duty these forty years past, not relevant to restrict them to that lesser duty in time coming, seeing the portage by sleds has not been used these forty years bygone, and so not prescribed against the Town by their so long silence and acquiescence.

Vol. II. Page 755.