BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
John Lamb v Robert High. [1789] Mor 1889 (29 July 1789)
URL: http://www.bailii.org/scot/cases/ScotCS/1789/Mor0501889-030.html Cite as:
[1789] Mor 1889
Found, that non-resident freemen have no right to vote in the election of a deacon.
Click here to view a pdf copy of this documet : PDF Copy
John Lamb, in terms of the statutes, 16th Geo. II. and 14th Geo. III. complained to the Court of Session, that at the annual election of magistrates in the town of Kinghorn, in 1788, Robert High had been admitted as deacon of the tailors, whereas he himself had the only right to that office.
The circumstance on which he rested his argument was, that the magistrates had unduly rejected, on account of non-residence within the burgh, two persons as voters, whose votes would have been decisive in his favour.
Pleaded: After a franchise has been once constituted in favour of any class of men, nothing can debar the exercise of it, but either express statute, or immemorial custom. Neither of these however can be stated, in order to exclude non-residing burgesses or freemen from their right of voting in the election of the town's officers, any more than it could prevent them from resuming their several occupations within the town, as soon as they found it convenient. Accordingly, although it has been specially provided, that the magistrates should be indwellers, no such provision has been made as to the other citizens; and in many instances it has been found, that a non-residing burgess might enjoy the important office of counsellor, when the matter had not been otherwise fixed by the constitution of the burgh. Some determinations which may be resorted to in the case of Edinburgh are not applicable, these having been given in consequence of the peculiar set of that town, as regulated by a decreet-arbitral pronounced by Lord Ilay, and confirmed by the subsequent practice: Act 1487, c. III.; 1535, c. 26.; 7th January 1757, Burgesses of Forres contra the Magistrates, No 10. p. 1855.; Burgesses of Wick, No 8. p. 1842.; 1775, Magistrates of Linlithgow.
Answered: The privileges belonging to burgesses and freemen have not been bestowed on them individually, but as inhabiting a certain territory, and in consideration of their peculiar usefulness to their fellow citizens. As soon, therefore, as a burgess or freeman ceases to reside witnin the burgh, he is not permitted to exercise any of his former rights. In the election of the town's managers, it would be very inexpedient to give any influence to those who have no longer any interest in the welfare of the community. Hence it has been found, that a non-residing burgess had not the privilege of taking apprentices. In another case it was expressly determined, that a tradesman residing in Canongate could not be elected a deacon in the town of Edinburgh; and this was held to be law in a subsequent question; 1st December 1738, Macduff, (infra); 31st January 1764, Millar contra Nicolson (not reported); James Hunter Blair contra Phin, No 27. p. 1885.
‘The Lords dismissed the complaint.’*
For the Complainers, Alex. Fergusson, C. Hay, et alii.Alt. Hope, et alii.
Fol. Dic. v. 3. p. 101. Fac. Col. No 81. p. 146.
* The same decision was given in a similar question from the town of Kirkaldy.
