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Scots burghs, ‘privilege’ and the Court of Session in the eighteenth century

Published online by Cambridge University Press:  17 October 2016

Worcester College, Oxford, OX1 2HB, UK


A striking feature of the history of the Scots burgh in this period, and of bodies within it, was their readiness to resort to legal redress in the Court of Session, Scotland's leading civil court. The law was a regular and often intrusive presence in burgh life, a means by which burghs, guildries and trades incorporations defended their privileges. This article will explore this propensity in relation to what it can tell us both about urban identity and the constitution of urban community in this period, but it will also begin to examine the role which the law may have played in the re-constitution and re-shaping of urban community. In other words, it will consider the law and judgments made in the Court of Session as active forces in a wider process of governance. We know relatively little, in fact, about this dimension of urban governance, but the surviving record is a rich one and demands much more systematic examination.

Special section: Communities, courts and Scottish towns
Copyright © Cambridge University Press 2016 

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1 Johnston, B., General View of the Agriculture of the County of Dumfries (London, 1794), 910 Google Scholar.

2 On developments within the Scottish grain market in this period, see Whatley, C.A., ‘Roots of 1790s radicalism: reviewing the economic and social background’, in Harris, B. (ed.), Scotland in the Age of the French Revolution (Edinburgh, 2005), 2348 Google Scholar; idem, ‘Custom, commerce and Lord Meadowbank: the management of the meal market in urban Scotland, c. 1740–c. 1820’, Journal of Scottish Historical Studies, 32 (2012), 1–27.

3 Advocates’ Library (AL), Court of Session Papers (CSP), Hume Collection, vol. 93, Memorial for John Johnston Tenant in Laigh Auchinane, in the Parish of Tinwald, Pursuer; Against William Clark and John Key Merchants, and Late Bailies of the Borough of Dumfries, Nichol Shaw Merchant, and Late Dean of Guid, Roger Wilson, Common Executioner, and William Ferguson, Keeper of the Public Jail of the Said Borough, and the Magistrates, Dean of Guild, and Treasurer, and Town Council, as Representing the Community of the Borough, 11 Nov. 1782; Memorial for William Clark et al. . .Against John Johnston, Tenant in Laigh Auchinane, in the Parish of Tinwald, Pursuer.

4 In the course of their defence, it was claimed that, with the exceptions of Edinburgh and Glasgow, where executioners were paid a salary, in most other burghs where there were executioners and regular meal markets, the practice of levying this kind of duty ‘continues in full observance at this hour’. Most burghs do not seem, however, to have had an executioner.

5 AL/CSP, Hume Collection, vol. 33, paper no. 28, 12 Nov. 1790, Memorial for the Magistrates of the Burgh of Paisley, and for John Adam, Manufacturer in Paisley.

6 See esp. Thompson, E.P., Customs in Common (London, 1991)Google Scholar.

7 Mitchison, R., The Old Poor Law in Scotland: The Experience of Poverty, 1574–1845 (Edinburgh, 2000)Google Scholar; Fraser, W.H., Conflict and Class: Scottish Workers 1700–1838 (Edinburgh, 1988)Google Scholar; W. Ferguson, ‘Electoral law and procedure in eighteenth- and early nineteenth-century Scotland’, unpublished University of Glasgow Ph.D. thesis, 1957. See more generally on Scots law in this period, Walker, D.M., A Legal History of Scotland, vol. V: The eighteenth century (Edinburgh, 1998 Google Scholar).

8 Langford, P., Public Life and the Propertied Englishman, 1689–1798 (Oxford, 1991), 222–32Google Scholar; Harris, B. and McKean, C.A., The Scottish Town in the Age of the Enlightenment, 1740–1820 (Edinburgh, 2014), 120–8Google Scholar.

9 Wilson, R., A Sketch of the History of Hawick (Hawick, 1825), 17 Google Scholar.

10 Whatley, C.A., Scottish Society 1707–1830: Beyond Jacobitism, towards Industrialization (Manchester, 2000), 155 Google Scholar.

11 Ibid.

12 Dundee Archives and Records Centre, Dundee, Dundee town council minutes, 10 Nov. 1761, 21 Jan. 1766.

13 University of Dundee, Archives and Special Collections, Forfarshire Topographical Collections, vols. 1 and 4, material relating to dispute involving destruction of a plantation of trees on Brechin common moor, 1768–69.

14 Borders Regional Archives, Hawick, TD 5/3/5, Hawick town council minutes, 1774–94; Wilson, Sketch of the History of Hawick, 16–17.

15 Hume, D., Decisions of the Court of Session, M.DCC.LXXXI-M.DCCC.XXII, in the Form of a Dictionary (Edinburgh and London, 1839), 496 Google Scholar. A bill of suspension had been filed in the Court of Session, questioning this right, but a criminal prosecution against the chief magistrate and two others had also been launched following direct action by these individuals, supported by a ‘mob or crowd’ from the burgh, to prevent attempts to close the old road.

16 See Harris, B., ‘Landowners and urban society in eighteenth-century Scotland’, Scottish Historical Review, 92 (2013), 231–54CrossRefGoogle Scholar.

17 AL/CSP, Campbell Collection, vol. 6, Magistrates of Paisley v. Road Trustees (1757).

18 AL/CSP, Campbell Collection, vol. 8, Inhabitants of Sneddon v. Magistrates of Paisley (1758).

19 AL/CSP, Hume Collection, vol. 42, Magistrates of Paisley v. Road Trustees (1792).

20 Craigie, J., Stewart, J.S. and Paton, T., Reports of Cases Decided in the House of Lords, upon Appeal from Scotland, from 1726 to 1822, 6 vols. (Edinburgh and London, 1849–56)Google Scholar, vol. I, 645–9, Right Hon. Lord & Lady Gray, appellants v. Magistrates and Town Council of Perth (30 Mar. 1757); National Records of Scotland, Court of Session papers, CS181/4709, Magistrates of Perth v. Lord Gray and others (1747).

21 Many of the local customs rights were leased by the burghs. For thirlage and growing opposition to it within certain burghs, see e.g. National Records of Scotland (NRS)/Court of Session Papers (CSP), Court of Session, CS138/4495, Magistrates of the Burgh of Perth v. Richardson and others (1767).

22 Decisions of the Court of Session, from the Beginning of February 1752, to the End of the Year 1756 (Edinburgh, 1760), 171.

23 AL/CSP, Campbell Collection, vol. 11, Paisley Incorporation of Wrights v. James Kibble, Procurator Fiscal of the Town of Paisley (1761). For another similar case, involving the right to levy a duty on ale imported into Brechin, see NRS/CSP, CS237/B/9/42, Magistrates of Brechin v. Lindsay (1802).

24 See, more generally, Harris, ‘Landowners and urban society’.

25 Craigie, Stewart and Paton, Reports of Cases, vol. I, 632–9, Duke of Roxburgh, appellant v. Jeffrey and others (18 Mar. 1757).

26 Edinburgh City Archives, Merchant Maiden Hospital letter books, TD92/9/30, Alexander Elles, Peterhead, 29 Aug. 1800.

27 NRS/CSP, CS271/43546, William Stewart (convenor, corporations of Ayr) v. Magistrates of Ayr (1788); NRS/CSP, CS231/IJ/1/17, Magistrates of Irvine v. Trades of Irvine (1750); NRS/CSP, CS231/39767, David Wilson & others (Trades of Cupar) v. Magistrates of Cupar (1787).

28 NRS/CSP, Dundee Corporations v. Dundee Magistrates (1759).

29 Dundee Archives and Records Centre, Dundee town council minutes, 5 Jan., 2 Feb. 1761.

30 NRS/CSP, CS271/25303, Kirk Session Dundee v. Town of Dundee (1760).

31 NRS/CSP, CS271/27447, James Morrison & others (inhabitants of Perth) v. Magistrates of Perth (1774); CS271/26557, Magistrates of Perth v. Guildry of Perth (1794).

32 See also AL/CSP, Campbell Collection, vol. 102, Incorporated Trades of Perth v. The Guildry (1800), for further details on the tussles taking place between the magistrates, guildry and incorporated trades in Perth in the later eighteenth century.

33 See also Murdoch, A., ‘Politics and the people in the burgh of Dumfries, 1758–1760’, Scottish Historical Review, 70 (1991), 151–71Google Scholar.

34 Perth and Kinross Council Archives, records of the incorporation of fleshers of Perth, MS122/1/1, minutes, 1761–95, entries for 15 Jan., 20 Jan., 11 Mar. 1784.

35 See esp. NRS/CSP, CS235/D/6/5, Burgesses of Dumbarton v. The Magistrates (1786), a case which concerned methods of accounting for public funds in the burgh.

36 House of Commons Papers, Command Papers, Reports of Commissions, General Report of the Commissioners Appointed to Inquire into the State of Municipal Corporations in Scotland, 1835 [30], [31].

37 See AL/CSP, Campbell Collection, vol. 12, Kilmarnock Magistrates v. Kilmarnock Incorporation (1761).

38 R. Saville, ‘Scottish modernisation prior to the industrial revolution, 1688–1763’, in Devine, T M. and Young, J. R. (eds.), Eighteenth-Century Scotland: New Perspectives (East Linton, 1999), 623 Google Scholar, esp. 7.

39 NRS, Papers of the Society of Sailor of Dunbar, B18/51/1/1–2, copies of the Charter of the Society, presented as a petition, 15 Sept. 1730. The society went on to lend significant sums to the burgh.

40 AL/CSP, Campbell Collection, vol. 14, Journeymen Woolcombers v. Magistrates of Aberdeen (1762). The magistrates were the defenders since at issue was whether they ought to give recognition to the society. The court came down on the side of the manufacturers.

41 A recent example is M. Fry, A Higher World: Scotland 1707–1815 (Edinburgh, 2014), ch. 7.

42 NRS, records of the incorporation of fleshers of Ayr, E870/6/2, minutes, 1774–1821, 9 Jan. 1794.

43 Fraser, Conflict and Class, 21.

44 In Ayr, for example, lists of unfree traders were being compiled on an annual basis at the end of the eighteenth century. The Perth dean of guild seems to have taken fairly regular action against unfree traders in the same period.

45 A General History of Stirling (Stirling, 1794), 62–3.

46 NRS/CSP, CS234/T/1/12, Taylors of Perth v. Mantua Makers (1756); AL/CSP, Campbell Collection, vol. 102, Incorporation of Taylors v. E. Maxwell, Mantuamaker, Dumfries (1801).

47 NRS/CSP, CS235/3/3/2/1, Corporation of Hammermen in Stirling v. Joh Goodfellow, watchmaker, there (16 Jul. 1766). It turned out that the error in relation to the essay piece was in the spelling of the item, although as one of the judge's derisively commented: ‘Who is it that must try the qualifications of the watchmaker? – they who cannot spell the name of the essay-piece!’

48 NRS/CSP, CS271/22785, The Incorporation of Dundee Bakers v. Patrick Hunter (1804); Morison, W.M., The Decisions of the Court of Session: From its First Institution to the Present Time, 38 vols. (Edinburgh, 1801–08)Google Scholar, Appendix, Part 1, burgh royal, 37–44, Bakers of Perth v. James Gloag, James Stewart, and others (3 July 1808).

49 Ibid.

50 Morison, Decisions of the Court of Session, Appendix, Part 1, burgh royal, 43.

51 Whatley, ‘Custom, commerce and Lord Meadowbank’. And, for a wider discussion by the same author, see idem, Scottish Society, 263–93.

52 Morison, Decisions of the Court of Session, Appendix, Part 1, burgh royal, 39.

53 22 Geo. II c. 31, which abolished the privileges of linen weavers and other linen workers. Under statutes passed at the end of every war, all persons who had been in the army and navy were entitled to exercise any craft, without belonging to a corporation. This was extended to wives and children, and from 1802 to former members of the militia and fencible corps.

54 Lynch, M., ‘Introduction: Scottish towns 1500–1700’, in Lynch, M. (ed.), The Early Modern Town in Scotland (Edinburgh, 1987), 135 Google Scholar.

55 AL/CSP, Hume Collection, vol. 42, Aberdeen Magistrates v. Incorporated Trades of Aberdeen (1793). What emerges very clearly from the evidences presented in this case is that both guild members and craftsmen were manufacturing as well as trading.