at Edinburgh, annually, on the second Tuesday of July. This court had a partial jurisdiction in questions as to the general regulation of trade, and other matters affecting the interests of the burghs; along with a legislative authority over their constitution not very well defined, but which, previously to the passing of the burgh reform act, included the right to adjust the "sets" or constitutions of the respective burghs, according to the act 1469, c. 30. The operations of this body are now generally limited to the discussion of those legislative measures which it may be expedient to apply for to Parliament, proportioning the land-tax, and granting supplies to assist the poorer burghs.

Magistrates and Council.-Each burgh has, from time immemorial, been regulated by a town-council and magistrates. By the old system of election the old council chose the new; while the old and new council together chose the magistrates and other office-bearers. The system is now altered. (See Chap. III.) The town-council and magistrates have legislative authority to pass by-laws, provided they do not infringe the public law. The community can only be bound by the acts of the council.2

Taxes. The portion of the land-tax payable by the royal burghs is apportioned among the inhabitants by stentmasters chosen by the council.3 (See Index, Land-tax.) In the majority of the burghs, certain customs and other duties have been levied by the town-council from time immemorial, and a prescriptive title has thus been created, which is held to give full right to the town-councils to continue them; but it is not clearly decided how far a community may become liable to new taxes without the consent of Parliament. In a great many instances the crown, arrogating to itself the right of assessing and collecting transit duties, made over by charter to the burghs the right of levying the petty customs, or duties on articles admitted within the burgh, while it reserved as part of the royal prerogative the great custom, or import duty on goods brought from abroad. It was formerly the practice for the burgesses and others to meet annually in a head court," presided over by the chief magistrate, where they granted the annual supplies. In 1678, it was found that "the magistrates might stent for the

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1 See the Introduction to the Report of the Commissioners appointed to inquire into the state of Municipal Corporations in Scotland. Muirhead v. the Town of Haddington, 30th June 1748, M. 2506.-3 1633, c. 2. - General Report of Commissioners, 46.

utility of the burgh; but then only upon calling the whole incorporation, and proceeding with the consent of the major part of those who should happen to convene." 1 In the burgh of Banff the practice of holding an annual head-court is still observed. "The court is deemed to possess the power of thus imposing a tax for any purpose whatever connected with the burgh, and to any amount; and such, accordingly, has been the practice. For example, an assessment for cleaning and lighting, or erecting public buildings, would be deemed to be included." The assessment is collected by poinding and sale, the legality of the practice never having been questioned in a court of law.2 It has lately been recognised in a local statute. The later decisions, having any reference to burghal taxation have related to attempts, on the part of town-councils by their own authority, to levy new taxes, and these have been decided to be illegal. The charters in favour of the burgh of Glasgow, containing a grant" of the small customs of the ports, and of the bridge, and of the meal-market," &c., " together with all other duties of which they are, and formerly were, in possession, or which may happen to be imposed, with consent of the council and community of the said burgh," it was found that, on the introduction of potatoes, the magistrates were entitled to levy a regulated duty on them, as on other vegetables brought to market. But it was finally decided in 1828, in a case where magistrates, in respect of certain improvements made by them," urged their right" to increase the amount" of certain "duties and customs," that without an act of Parliament they could not do so.5

The magistrates cannot alter the incidence of a tax so as to make it press unequally, on the plea that the inequality is balanced by the incidence of other taxes. But they may change the method of levying a tax so as to make it apply to alterations in the use of the subjects on which it is charged. So when a custom was imposed on ale as conveyed on men's backs, it was allowed to be levied when carts were used as the means of conveyance.7 The Court of Session will not interfere to alter a burgh tax, on the allegation that the

Town of Aberdeen v. Lesk, 11th January 1678. M. 1866. See Magistrates of Inverness v. Forbes, 14th February 1672. B. Sup. ii. 700 and M. 1895.- Local Reports of the Commissioners, i. 106, 107.-3 Boog, &c.v. Magistrates of Burntisland, 22d February 1775. M. 1991.- Ferguson, &c. v. Magistrates of Glasgow, 29th June 1786. M. 1999.Cowan, &c. v. Magistrates of Edinburgh, 22d February 1828.- Stewart . Isat, 13th July 1775. M. 1993.-7 Magistrates of Edinburgh v. the County Brewers and Heritors, 17th July 1711. Br. Sup. v. 74.

1

system operates partially and unequally. In one case, where magistrates had levied duties in the mistaken notion of their being authorized by custom or act of Parliament, they were found liable to repay them.2

Powers and Responsibility of Magistrates, &c.-The community, and its available property, are responsible for the authorized acts of the magistrates.3 They cannot charge the community with the expense of defending themselves against a prosecution for malversation in office, in which they are unsuccessful.* 4 The magistrates, as the officebearers of the community, are the persons in whose name actions are raised and defended. They are, conjunctly with the sheriffs, the executors of the law within their bounds.+ They were formerly under the obligation of providing prisons, and were in some respects liable for the safe custody of the prisoners; but these functions have been removed by the Prison Discipline Act.

Exclusive Privileges.-Formerly, in the several burghs, there were certain sub-corporations which possessed exclusive trading or manufacturing privileges within specific limits. These privileges have now been abolished; but in the statute enacting the abolition, it is provided that they are to retain their corporate character, and any other privileges, not involving the exclusive right of trading, which they may have possessed. As the fees obtained for participation in the exclusive privileges generally constituted the funds of these societies, the act provides, that to make arrangements for meeting their altered circumstances they may make bylaws, subject to the approval of the Court of Session.5

SECT. 2.-Property, Revenue, and Expenditure of Royal

Burghs.

The property of royal burghs consists of lands, houses, mills, feu-duties, and other descriptions of heritage; of personal property, such as shares in joint-stock companies, debts, &c.; and of the annual revenue derived from these sources, and from assessments, entry-money of burgesses, &c. The above property is like that of an individual, capable of being disposed of, and liable for the debts of the

Gibson and others, petitioners, 13th November 1810.-2 Magistrates of Dunbar v. Kelly, 26th November 1829.-3 See Cases, M. 2510-12.* As to the responsibility of royal burghs for damage done by riot, see Index-Riot. Magistrates of Pittenweem v. Alexanders, &c. 15th July 1774. M. 2527.-+ See above, p. 21.-5 9 & 10 Vict. c. 17.

community. There is another description of property which the magistrates and council are understood not to hold as administrators, but as mere custodiers,—such as churches, town-houses, and other public buildings. It is understood that property of this nature cannot be disposed of, or rendered liable for debt. In the case of Auchtermuchty, where all the ordinary heritable property was adjudged, it was held that the jail, the town-hall, the public bell, and the right of levying petty customs, could not be included in the adjudication.3 It has been held that "the right vested in the magistrates of burghs of presenting to churches, seats in universities, &c., in their own burghs, is a privilege which they have no power to alienate; and this right is in quite a different situation from the patronage of an unconnected parish which the burgh may have acquired." 4

Examination of Accounts.-The powers of the great chamberlain (see preceding section) in auditing the accounts of the burghs was transferred in 1535 to the auditors of Exchequer, and continued with the Court of Exchequer as established at the Union. In 1787, however, it was found that this jurisdiction had fallen into desuetude, and the court refused to exercise it. In 1820 it was farther decided that, except where the action was brought on the act 1693, c. 45 (which required magistrates to obtain an act of council before incurring any debt), the Court of Session had no jurisdiction, and that burgesses had no title to complain of acts of mismanagement which did not directly affect their private and patrimonial rights.7

In terms of 3d Geo. IV. c. 91, an account of the common good and revenues of each burgh, specifying the debt, property, each branch of revenue, with receipts and arrears, loans, sales, and expenses, and distinguishing the ordinary from the casual expenditure, must be made up to the day preceding the annual election of magistrates. This account must be signed by the acting chief magistrate.

The

magistrates and councillors neglecting are liable to a penalty not exceeding £50 each, and costs, which may be recovered in exchequer, at the suit of any three or more burgesses.9 The account must be deposited in the town-clerk's office for inspection, within three months after the election, and re

General Report of Commissioners, 32.- Ibid.-3 Phin v. Magistrates of Auchtermuchty, 22d May 1827.- Wallace, &c. v. Magistrates of St. Andrews, 27th Feb. 1824.- 1535, c. 26.- General Report of Commissioners, 29.-7 Burgesses of Inverury v. the Magistrates, 14th Dec. 1820.- 3 Geo. IV. c. 91, § 1.-9 Ibid. § 2.

main for thirty days, and if, on a correspondence, no satisfactory explanation is given of any part complained of, action may be commenced at any time within three calendar months.1

Separate accounts must be made up for charitable trusts and mortifications.2 Feus, alienations, or tacks for more than a year, of heritable property forming part of the common good, or of the common good in general, must proceed by public roup, on twenty-one days' previous advertisement.3 The advertisement must proceed on an act of council, and be issued twelve days before the end of an exchequer term, that objections may be discussed. Magistrates or councillors contravening are liable to a penalty not exceeding £50 and costs. Magistrates and councillors cannot bind themselves as a body, or their successors, without an act of council, and they become personally liable for whatever engagements they may otherwise contract.5 Collectors of burgh taxes must state in their receipts for what purpose, by what authority, at what rate, and by what rule the assessment is charged, under a penalty of £10 for each omission. Owing to the forms adopted in exchequer processes, many impediments have been found to lie in the way of the enforcement of these provisions.7

SECT. 3.-Burghs of Regality and Barony.

The chief distinction between burghs of regality and barony, and royal burghs, arose from the latter being exclusively entitled to send members to parliament, as holding directly of the crown. By the parliamentary reform act, several burghs of the former class have become entitled to choose, or to unite in choosing, representatives (see Part II. Chap. II.), while some royal burghs of diminished extent have been merged in their respective counties.8

Burghs of regality and burghs of barony were erected by the sovereign in favour of subjects who generally enjoyed the property or superiority of the lands on which they stood. The right of electing magistrates was in some instances vested in the inhabitants; in others, in the respective lords of regality, or barons. These were the feudal superiors of their respective burghs, and whatever jurisdiction the magistrates might have, they enjoyed a cumulative jurisdiction to

13 Geo. IV. c. 91, § 3.—2 Ibid. § 4.—3 Ibid. § 5.-4 Ibid. § 6.5 Ibid. § 11. Ibid. § 7.- General Report, 30.- 2 & 3 Wm. IV. c. 65, §§ 2, 4. E. i. 4, 30.