James Brown.

The history of Sanquhar ... To which is added the flora and fauna of the district online

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be found for the rent, and this security was not unnecessary,
for occasionally the cautioner had to be called upon. In par-
ticular years, however, the tacksman was allowed a rebate,
owing to the depression of trade, which of course affected
traffic and customs to a very considerable extent. They
were let in 1727 at Sixty-six pounds Scots. During the
first half of the present century, they varied from 18 18s to
35 os averaging 27. In the year 1850, the Magistrates,
not being able to obtain a satisfactory bid at the annual let
of the Customs, resolved to collect them by some person to
be employed for that purpose. This arrangement did not

25



194 History of SanquJt&r.

work well, and in 1852 they were again exposed to let, but,
no offer being forthcoming, the Council resolved to employ
their own officer in their collection.

On the opening of the railway in 1850, a question was at
once raised as to the liability of the railway company to pay
custom on goods carried by them through the burgh. The
company demanded a sight of the charter, and a copy was
sent them, and a deputation of the Council went to Glasgow
to discuss the matter with the Directors. The latter offered
an annual sum of 35, but the Council stood out for 70.
It was ultimately adjusted at 40, which was increased after
five years to 45. Meanwhile the question of liability was
being tried by an action between the Edinburgh and Glasgow
Railway Company and the Burgh of Linlithgow, which
dragged its weary length along, and was only decided in the
House of Lords in 1859. The decision was in favour of the
railway company. The contract for a payment of 45 per
annum for Jive years, entered into in 1857 between the
Glasgow and South- Western Company and the town, was
still running, but the company at once gave notice that, in
face of the Liulithgow decision, they would pay no longer.
The Council attempted to hold them to the contract, but in
vain, and this important source of revenue was lost. Though
the railway company was thus freed from liability in custom
on goods carried along their line through the burgh, there was
still the question of custom for, goods brought to the railway
station, and delivered therefrom. The company, encouraged
by the decision in the Linlithgow case, refused to pay this
custom as well, and an action was raised by the Council, in
which they were successful. A further action, in vindication
of the town's rights had to be raised at Ayr in 1883,
against Messrs Sanger, circus proprietors, who had passed
through the burgh some days before, and refused to pay.
In this action the Council were also successful, but Mr
Sanger had ample revenge five years later, when, on pass-
ing south through the burgh, and again refusing to pay, the



History of Sanqiih ar. 195

town officer, acting on instructions, seized one of the perform-
ing horses. The incident occurred on a Sabbath day, and
caused great excitement in the town. In regard to the
merits of the question, however, a great and vital change
had taken place, through the operation of a clause in the
Roads and Bridges Act, which had been passed in 1878, and
which clause, together with others, was only to come into
force ten years after the passing of the Act that is to say, in
1888. This clause made it appear at least doubtful whether
the burghs were entitled any longer to exact through-custom.
The attention of members of the Council had been drawn to
the clause shortly after its coming'into force, and they were
cautioned to satisfy themselves, lest their right should one
day be challenged ; but the caution was disregarded, and Mr
Sanger's refusal found them unprepared with legal advice.
No doubt Mr Sanger had satisfied himself of his ground, and
that accounted for the significantly quiet manner in which
he allowed the officer to seize his valuable horse. The Town
Council speedily found that they were wrong, and hastened
to restore the horse and pay all necessary costs. Having
made this reparation, they fondly hoped they had reached
the end of the notable incident, but they were not to be so
easily let off. Mr Sanger had been nursing his wrath since
his prosecution in 1883, and now his chance had come. The
Council had walked into the trap, and he would have his
revenge. He raised an action of damages, and a process of
" haggling " began. The Council, instead of making the best
of a bad job and getting the matter closed, acted in a waver-
ing, undecided fashion. They offered something less than
Mr Sanger demanded, and meanwhile the law expenses were
mounting up. Another higher offer was made, to be met
by a higher claim, founded on the increased expense incurred
by the pursuer, and so the miserable business went on till, at
length, a deputation was appointed to meet Mr Sanger's
agent, and effect a settlement somehow. The result was, the
Council had to pay 50 damages, and the whole expense



196 History of Sanquhar.

incurred by them amounted to about 70. Thus ended what
has been called the famous circus-horse case.

The Table of Customs was now reduced to very small
dimensions. All through-traffic, whether by road or rail, was
free, and the through-customs derived from the railway
company, and from droves of cattle and sheep, had been
always the principal part. Now, all that remained was that
derived from goods brought into the town to market or taken
out for sale. A large part of the officer's time was taken up
in watching for the opportunity of picking up twopence now
and again. The question, therefore, became Was the game
worth the candle ? and it was taken up, and became a burn-
ing question both in the Council and outside. The Council
were compelled to come to a decision by a notice from the
railway company, in January, 1889, that they would no
longer pay even on the goods delivered from the station.
After negotiations, the company offered to refer the matter
to eminent counsel. The Town Council proposed a friendly
small debt action, which the company declined, and repeated
their offer of arbitration. Discussion was carried on from
meeting to meeting of the Council. After several months'
wrangling, it was proposed to continue the collection of
customs, but the proposal was defeated by an amendment
counselling delay. It was brought up again at a meeting on
17th May, when the opponents boldly met it with a resolu-
tion " that the Council abolish the custom," which latter was
adopted, and so the final end of this long and bitter contro-
versy was at last reached. The question was argued both on
the ground of principle and expediency. It was pointed out
that the whole system of customs of this descinption was out
of harmony with the spirit of the times was, in truth, a relic
of a pre -reform age ; and certainly it was a striking spectacle
to witness a council and a community, who make a boast of
their Liberalism, clinging so tenaciously to ancient privilege,
so foreign to the creed which they professed. But, apart
from principle, the maintenance of these imposts was ques-



History of Sanquhar. 197

tionable upon economic grounds. The greater proportion of
the amount realised would now be spent in the costs of
collection. Their abolition would enable the Council to
effect a saving in their officer's wages, and this was the view
which prevailed, and which gave the death-blow to these old
standing exactions.

Having thus dealt with the Revenues of the Town Council,
let us now turn to their powers and duties.

The Magistrates were clothed with powers of civil and
criminal jurisdiction. In civil matters, their powers corre-
sponded very much with those now exercised by Justices of
the Peace, and covered the minor class of business that now
falls to the Sheriff. They had the granting of licences for the
sale of intoxicating liquor in their hands ; a power of which
they appear to have made free use, for we find that the num-
ber of licensed houses in the year 1813 was 18 ; while those
holding ale certificates alone, numbered 21. These licence
holders were classified into vintners, change-keepers, innkeep-
ers, or stablers. Their aid was likewise invoked in the
recovery of small debts. In 1718, there is a minute that
warrants were, at the instance of a creditor, granted by a
bailie for the arrestmeut in the hands of a third party of funds
belonging to his debtor. Their authority was further exercised
in certain ways, which were quite conform to the ideas of
the time, but to matters which now appear to us extra-
ordinary. Thus, in the year 1728, "the Magistrates and
Council considering the great straits and necessities that
Masters and Labourers of the ground are driven and con-
strained to by the fraud and malice of servants who refuse to
be hired without great and extraordinary wages promised to
them and cast themselves Loose knowing that the People
who have necessary to do with Labour will be forced to hire
them at daily and weekly wages, and such high rates as they
please to the great harm of his Majesty's Leidges, And also
the said Provost Baillies and Council considering that manv



198 History of Sanquhar.

such Loose and Idle People who ought to be at service have
resorted to and are daily resorting to this Burgh For Remeed
Whereof the said Provost Baillies and Council Do Hereby
Discharge the haill Burgesses and Inhabitants within this
Burgh and territories thereof from Setting Houses, giveing
any Intertainment, Lodging, Succour or Relief to such Idle,
Loose and Solitary men and women, without first acquainting
the Provost Baillies and Council and getting allowance from
them, therefore Certifieing the Contraveners that they shall
"be lyable in a fine of ten merks Scots mone}^ for every
oftence."

They likewise exercised a censorship on public morals. In
1727 we have this salutary enactment : " The Magistrates
and Council ordaine and appoint that whatsomever person
or persons, burgesses or inhabitants, within this brugh after
the day and date shall be found guilty and convicted of open
and publick scolding, railing, swearing on the public street or
otherways abusing of their neighbours within house or other
people strangers or any burgess or inhabitant within this
brugh, And whatsomever person or persons forsaid shall be
found guilty and convicted of habitual drinking, cursing and
swearing, and shall then curse and abuse any of the Magis-
trates, 4 Clerk, Councillors, Deacons of Craft or any other
Burgess or tradesman, their families, or people that are
strangers of good repute, he shall immediately after convic-
tion be banished this burgh arid the territories thereof by
Haile of Drum, and shall lose the privileges and liberties of
the burgh." Similar provisions follow for the prevention of
the harbouring of strangers, vagrants, and suspicious persons.

Even so late as the year 1838, there is an ordinance of a
similar kind, which would not be amiss were it enforced at
the present day. " The Magistrates and Council instruct
their officer, until he gets contrary orders, to prevent as much
as possible groups of children, boys and girls, from collecting
together about the corners of houses or on the public streets
or lanes of the Burgh, and upon all occasions to disperse



History of Sanqiihar. 199

them when he finds them so collected, with the view of
preventing them from troubling, annoying, and molesting
the public at large, as has been much the case of late ; and
in the event of any one of them refusing to disperse when
desired, instruct the officer to bring them shewing such con-
tumacy or caught in the commission of any act of molesta-
tion before the Magistrates, or Provost, to be dealt with by
Fine or Imprisonment as may be judged expedient."

Their solicitude for the public welfare manifested itself
not only with regard to the good manners of the inhabitants,
but also to their comfort in even minute particulars, for, in
1753, "Two shillings were given to James Kellock, officer,
for expense of powder and lead or otherways shooting Dogs
within the Burgh."

Besides the powers which they possessed in these and
other civil matters, the Magistrates also exercised a consider-
able criminal jurisdiction. Courts were held as occasion
required, and a burgh fiscal was an appointment held by one
or other of the legal gentlemen in the place. Reference is
made in a minute in 1838 to the fact that " Mr Robert
Dryden, formerly writer in Sanquhar, who has for many years
held the office of Burgh Fiscal, is now unable longer to
discharge the duties of said office, James Whigham is
appointed in his room, at a salary of Five pounds per
annum."

The position and duties of the Burgh Officer are defined
in the paragraph under that heading. Here, however, it
may be stated that he was the jailer of the town, and served
the warrants of the Magistrates connected with their whole
civil and criminal jurisdiction.

In addition, a body of constables was regularly appointed,
who could be called upon, if necessary, for the maintenance of
the public peace. They received batons of office, and were
allowed a small fee for their services, their appointment being
for six months. In 1815, there is a note that " the Con-
stables resigned their Battons, as the term of their appoint-



200 History of Sanquhar.

ment was elapsed, and the Magistrates direct the Treasurer
to pay to the said constables the sums formerly allowed to
them." Seven persons, whose names are given, are then
appointed in their room, who " being present, accepted of
their offices, and gave their Oath defideli in common form."

One of the chief duties of the Magistrates in this connec-
tion was, of course, the preservation of good order within the
burgh, for which they were responsible to the Crown, but
the}' likewise dealt with ordinary police offences and kindred
matters. As an example, we give the case of two men, in the
year 1718, who are ordered, at the instance of James Kellock,
Fiscal of Court, to appear " in ane court to be held within
the Tolbooth of said burgh, for their fighting, strugling,
batering or brusing ane another, and to swear by the Law
of God." The punishment of theft was to stand in the Joggs
(elsewhere described), and to undergo a term of imprisonment.
A story is told of a woman, who was led through the town by
the officer with a halter round her neck, and with a placard
on her back, bearing the words " This is a thief." This
latter mode of punishment was quite in accord with a
system in vogue throughout the country, as we learn from
the annals of that period. It certainly was rough and ready,
but it had this recommendation, which all punishments
should more or less have, it was calculated to have a deter-
rent effect upon other offenders.

The crime of poaching, too, came under the cognisance of
the burgh authorities. One William Kirk, in the year 1719,
a " fowler " in Sanquhar, " pleads guilty of spoiling His
Grace the Duke of Queen sberry and Dover of his game, and
is ordered to go to John Dalrymple of Waterside, his Grace's
bailly, and satisfy him, and that under paine of one hundred
merks Scots." Reference may also be made to the penalty
attached to plucking, trampling, or otherwise destroying the
Pease, which the Magistrates ordained should be grown by
each heritor possessed of land on the Muir.

The smuggling of brandy and foreign spirits seems to have



History of Sanquhar. 201

been practised in the burgh to some extent in last century,
and the Provost, Bailies, Council, and Deacons of Trades, in
1730, taking into consideration "the pernitious effects of the
Clandestine Importation and open consumption of Brandy
within this burgh and neighbourhood thereof, And appearing
evidently to them that considerable sums of money are yearly
expended for purchasing this unnecessary commodity, And
being resolved for the good of this Burgh to take an Effectual
Course for preventing and restraining such Courses for the
time to come Do therefore statute and ordain That no person
or persons within this burgh shall Import, Resett, Sell, or
Retail Brandy of Foreign Spirits contrair to Law, Certifieing
hereby the Contraveener or Contraveeners That they shall
not only be and are hereby lyable to a Fyne of Five pound
sterling for every such offence, But also Declared Incapable
of bearing any publick office within the Burgh in time
comeing."

Such, in general, were the powers of criminal jurisdiction
with which Magistrates in burghs were clothed, but, important
though they were, they fell far short of those with which they
were originally endowed. A reference to the Charter of the
burgh shews that they could even inflict capital punishment,
but it is not to be inferred from this that they were empowered
to try prisoners charged with murder, for the death penalty
was, in those days, and down to a much later period, incurred
for such comparatively minor offences as forgery, sheep-
stealing, theft, &c.

The exercise of criminal jurisdiction by the Magistrates of
Sanquhar ceased from the year 1838, when the Council
resolved not to appoint a Burgh Fiscal.

DUTIES AND OBLIGATIONS.

A duty imposed in early days on the Magistrates was the
execution of the Brieves of Chancery (this is referred to in the
Burgh Charter) in connection with questions of heirship and
succession. The brief having been received was put into the

26



202 History of Sanquhar.

hands of the Town Officer, by whom proclamation was made
at the Cross indicating its nature, and calling on all objectors
to appear. Thereafter, it was remitted to a jury of fifteen,
who, having chosen their Chancellor, instituted an inquest
into the facts, examined, on oath, witnesses, the officer with
regard to the due service of the brief, and persons who could
speak from personal knowledge of the propinquity of the
claimant to the deceased, whereupon the claimant's declara-
tion was read, that the deceased had died " at the faith and
peace of our Sovereign Lord the King, and that he was his
nearest and lawful heir," and if no objector appeared, they
pronounced their verdict, which was reported to the Magis-
trates, by whom it was notified and forwarded to Chancery.

Further, the Magistrates issued warnings to remove at the
instance of landlords of house property. These warnings
were served by the Town Officer, by marking, with a cross,
the door of the person against whom the warrant had been
granted. In the event of these warnings being disregarded, a
court was held on the Term day, when warrants of ejectment
were issued, which were executed in a summary manner.
This custom is still in force.

Elsewhere, it is stated that, in return for the exceptional
privileges and immunities conferred upon Burghs, they were
liable for contributions to the Crown for expenses in time of
war, in days when there was no regular standing army, and
for other purposes which have been specified. These contri-
butions were mainly made by the Convention on behalf of the
whole burghs, but each burgh was individually liable for
certain contributions, which were raised by a Cess, correspond-
ing to the modern word assessment, levied upon the Heritors
within the Burgh. A Cess of this kind "for the King" was
made in 1719, and repeatedly thereafter.

The Burgh was also liable in its proportion of the school-
master's salary, and this was frequently collected along with
the Cess for the King. In the case above-mentioned, " the
Council laid on Four Months' Cess to be uplifted out of the



Histomj of Sanquhar. 203

burgh from the Heritors, three to the King, and one to Mr
John Hunter, schoolmaster." The appointment of school-
master was in the hands of the Duke of Queensberry as the
principal Heritor, but the Town Council exercised some
influence in the matter. For example, in 1738, they made a
representation to the Duke that " neither of the two John
Hunters (the one a son of James Hunter in Brakenside and
the other a son of Samuel Hunter in Tower) Recommended
are their choice to be schoolmaster of Sanquhar, and a great
part of the Council and Paroch declareing their regard for
William M'George, late schoolmaster, and that they were
satisfied he were restored to this office, they do humbly
propose him." The result was that the. Duke's commis-
sioners gracefully left the appointment of schoolmaster to the
free choice of the Council, and M'George was restored.

The theory of the law as to streets in burghs is,
that they are held by the Magistrates, under the Crown
for the benefit of the public. Their maintenance and repair,
therefore, fell upon the civic authorities, and it appears that
the means adopted by them to perform this duty was, in
former times, to call in the service of the inhabitants. Thus,
in 1721, the Council appoint two overseers " for mending
and making good the King's highway within the Territories
of the Burgh of Sanquhar, and do hereby order and ordaine
all Heritors, Burgesses, and Inhabitants within the burgh to
attend three full days as duly advertised for that effect to
Mend the Highways and to furnish all necessar work, under
penalty of eighteen shillings Scots for ilk deficient person ilk
day." The first paving of the street took place in 1728.
The following is the minute thereanent : " The Provost,
Baillies and Council considering the Inconveniency and loss
the Burgh sustains through the Badness of their Causay,
Therefore they, with the unanimous advice and consent of
the haill Heretors and Burgesses of this present, do appoint
and ordain that the publick street of the said Burgh be
causayed, And for that end appoint that each inhabitant who



204 History of Sanquhar.

hath keeped a Horse for half ane year by gone shall be
oblidged to lead a Rood of Stones for the said Causay betwixt
and the first of March next to come, and the Causaying to
be begun against the said first of March next, And each
person oblidged by this act to lead a Rood of Stones failing
to do the same in the terms mentioned shall be lyable and is
hereby fined in six pounds Scots money to be applied for lead-
ing the said rood of stones; And appoint . . Stentmaster,
for stenting the said Burgh proportionally according to their
Interest and ability for raising a fund for working the said
Causay, and appoint a stent-roll to be made up accordingly."
In December of that year a contract was entered into " with
James Miller and Alexander Kay, both masons and causayers
in Kilsyth for to work the said causay as follows, viz. : The
said contractors are to redd the ground and lay a sufficient
causay full Five Elves brode upon the publick street of this
Burgh from the Townhead to near the Crossknow being
about Fifty Roods of Causay or thereby .... and the
Town is to furnish stones, sand, and other materials neces-
sary, and to give ready service to the Contractors, and to pay
them three pounds, six shillings and eight pennies Scots money
for each rood." A subsequent minute states the cost to have
been one hundred and twenty-eight pounds, fourteen shil-
lings Scots, the quantity proving much less than had been
calculated.

In 1789, " the Magistrates, considering that there is an
application to be made to Parliament next session for a Bill
for making a Turnpike road from the confines of the County
of Ayr by this Town, Dumfries and Annan towards Graitriey
which will require a considerable sum to compleat the same
They Hereby Impower the Provost to subscribe for one sum
of one hundred pounds sterling for the said Road." Prior to
this time, the provisions for the maintenance of highways
were very indefinite, but, during the last thirty years of the
eighteenth century, there was a perfect spate of Acts of Par-
liament for this purpose. So far as this district was concerned,



History of Sanquhar. 205

a service of the highest value and importance was rendered
voluntarily by the Duke of Queensberry, who, towards the
beginning of last century, constructed, in a great measure at
his own expense, twenty-two miles of road through his estate
from Thornhill to the borders of Ayrshire, so that, through
His Grace's enlightened policy, Upper Nithsdale, for a whole
century, enjoyed an advantage in this respect denied to
many districts of the country.

An Act was passed in 1777, which constituted Road Dis-
tricts, the parishes of Sanquhar, Kirkconnel, Durisdeer,
Morton, Closeburn, and Penpont forming the sixth division,
but, while providing for the improvement of the roads in
Annandale, it made no similar provision so far as regarded
Nithsdale, and it seems to have been to supply this defect
that the above-mentioned Bill was brought in in 1790. The



Online LibraryJames BrownThe history of Sanquhar ... To which is added the flora and fauna of the district → online text (page 18 of 44)