Decisions of the Court of Session, William Maxwell Morrison 1801
Cases relating to Bound Coaliers
1619 March 7. Lord Lothian against James Bothwell.
In an action pursued by my Lord Lothian contra James Bothwell of Newbyres; the Lords fand, That the act of Parliament anent coal-heughs, was only to ganging coal-pits, and that it was lawful to parties to fee, hire, and conduce coal-hewers, where coals are given up, or not able to entertain the coalhewers.
No. 2 Found that a master, who had given up working his coal, might reclaim his coaliers, when he began to work again after several years; they having left his service without a testimonial in terms of the act 1606
1708 February 4. - Wallace against Cunningham.
Sir Thomas Wallace of Craigie, advocate, pursues William Cunningham of Brownhill, on the 11th act 1606, and 56th act 1661, for seducing and detaining eight or nine of his coaliers, that were born in his ground, and had wrought in his coal-heughs some years ago, and whom he had required from him by way of instrument; and he having refused to dismiss them, he claimed the penalty of the act of Parliament, being £100 Scots for every man so detained. Alleged, This was the only remaining vestige of slavery amongst us, and liberty being juris naturalis, it is as little to be incroached upon as may be ; and the pursuer is noways within the case of the acts of Parliament cited, which are in favours of those who have a going coal-work, which Sir Thomas has not had these seven or eight years past; and so having no employment for them, it was insnaring and invidious to require them back, 2d, The act has an exception, unless they had been year and day out of their master's service; for then law presumes he has derelinquished his right, by his supine negligence, in suffering another man to possess them for year and day; and Sir Thomas can pretend no damage, seeing he had no use for them all that time; and though of late he has put down a coal-sink, yet not having required them back within year and day of their deserting his service, and of their working at his coal-heugh, he cannot claim them now. Answered, Liberty is indeed favourable; but what is the odds, whether they be slaves to Cunningham or him? yea, he has the better claim, being originally in his ground, and continue there still, not only ratione nativitatis, but domicilii; and though he had no work for them for some years past, yet by law, he was impowered to lend them, or sell them; and this property is founded on good reason, for coal being a great casuality in Scotland, our law wisely considered that rent could never be secured without such a severity; none being capable of learning that art, but such as are trained up to it from their infancy; and the act of Parliament is perverted, when it is interpreted, that the requisition must be within year and day from their leaving of my work, and their being in my actual possession and service; for then it were easy for coaliers to shake themselves loose of their true masters and owners, by absconding for a year, and running to the Newcastle coal-works, and then returning from the Keels after the year is run out; but the law has better provided, that I must require them before you have prescribed a right to them, by an annual possession without interruption; but ita est, I required them long before they had been a year in your service, which is all the act requires. The Lords found, That coaliers could not be hired without a testimonial from their former master; and that Sir Thomas having now a going coal, he might very well require them back to his-service; and though they were several years away from him, yet they not having been a year in Brownhills work, the requisition was good, and he must restore them.
By this instance, and some others that have occurred this session, such as the ex. pounding our laws spent winter herding, cautioners being free after seven years, butchers not being grasiers, &c. it appears, what latitude Judges have in the interpretation of laws, sometimes by an extensive interpretation, ampliating them beyond what the words carry; and at other times, by a restrictive sense, limiting them from equity and circumstances appended thereto. So the Orator's opinion and observe was true, that laws in process of time sub judicum potestate cadunt by their several ways of expounding and applying them. See p. 2020.
No 3. In a process for restitution of a coalier girl, who had deserted her master's works, and gone to another coaliery, the Lords decerned for restitution; but in respect there was proof that she had been year and day in her new service before requisition, they assoilzied from the penalty, not-withstanding she had been detained after requisition. If delivery of the coalier within 24 hours, in terms of the act of Parliament happened to be impracticable, the penalty would not have been forfeited, if the delivery had been made without delay.
1725. June 22. George Lockhart of Carnwath, against Daniel Peck, and Other tacksmen of the Coal of Saltcoats.
Carnwath insisted in a process against the defenders, for restoring back to him Kate Thomson his coal-bearer, concluding, That they also ought to be decerned in payment to him of the penalty contained in act 11th, Parl. 18th of James VI because they had detained her after requisition.
A mutual proof was granted, upon advising of which, the Lords, 8th June 1725. In regard that the pursuer's proof was pregnant, that the servant was in his service within year and day of the requisition; and that the defenders' proof was also pregnant, that she continued year and day in their service before the requisition, assoilzied from the penalty; but found that the property remained, with the pursuer; and therefore ordained the defenders to deliver the servant to Carnwath's coal-grieve at Dryden, betwixt and the last day of June inclusive, under the penalty of L. 100 Scots, by and attour performance.
The defenders, in a reclaiming bill, prayed, That the Lords would find their delivering back the servant at the coal-heugh of Saltcoats sufficiently exonered them, and that they were not obliged to transport her to Dryden, because they had no authority to compel her to return, since she was found to be Carnwath's property; and they likewise contended, That since the act of Parliament required the delivery back of the servant in 24 hours after requisition, it necessarily imported that the delivery was to be made at the possessor's coal-heugh; because, if the coaliery to which the deserter belonged should be at the distance of 200 miles, the thing would be impracticable.
The coal-bearer likewise gave in a petition, praying, That the Lords would decree her her liberty, in respect that the case appeared doubtful as to the possession and requisition, and because of some cruel usage she had met with in Carnwath's service; and in support of her plea the following laws were quoted, l.122. compared with l. 125. ff. De regulis juris; and §2. Inst. De bis qui sui vel alieni juris sunt.
The Lords had no regard to Thomson's petition, because the severity she had been used with did not appear to have been greater than what she deserved, on account of a former desertion. And to the tacksman's petition it was answered, That the interlocutor of the Lords sufficiently authorised them to transport her to the pursuer's coal-heugh, and would warrant the several Magistrates, through those jurisdictions they were to pass, to grant their concurrence: That the argument from the act of Parliament was of no moment; because, at the date of that act all the coalieries in Scotland were so near one another, that 24 hours might answer the end; and though now it might happen, that a coaliery was at a greater distance, yet if the restorer was in cursu, .no doubt he would be excused from the penalty.
The pursuer concluded with an observation, That the question was of considerable import to all the coal-masters in Scotland; for of late they had sustained considerable losses by the insolence of their servants, which, he alleged, was occasioned by the encouragement and countenance they met with at the coalworks of Saltcoats, upon their desertion from other works.
The Lords adhered to their interlocutor the 8th of June 1725.
1743. June 22. Anderson and Others, Suspenders, against Sir James Wemyss of Bogie, Charger.
It was the opinion of the Court at passing a bill of suspension, That where a coal fails, the coaliers are not cessible to another coal-master: And the like was said to have been found some years ago between Mr James Smith and certain coaliers ordered by the Laird of Arnot to work at Mr Smith’s coal.
No 5. Coaliers found capable of voting at an election in a burgh.
1747. January 16. The Burgesses of Rutherglen against Andrew Leitch, Provost.
A Number of coaliers belonging to a coaliery in the neighbourhood of the town of Rutherglen, whereof Provost Leitch was tacksman, having been admitted burgesses, the incorporated burgesses, who looked on this as an indignity to the town, and a project to carry an approaching election of Magistrates, procured a suspension against the coaliers, who, notwithstanding, voted at the leeting of the eight unincorporated burgesses, out of whom, by the set of the burgh, four counsellors are chosen by the Provost and Bailies.
The election of the said four counsellors being challenged by summary complaint, the grounds the complainers insisted on were, That coaliers were incapable to vote; that as they were by statute bound to work six days in the week, it therefore depended on their masters, whether they should be permitted to attend the meeting or not; and if so, it no less depended on him for whom they should vote, and it was inconsistent that any one should have a right to vote who had not his personal liberty: The case of town-pensioners and beedmen was also appealed to, who were not allowed to vote; and the objection to coaliers was said to be stronger.
It was answered, That where one has a right to vote as a burgess, or any other right, it did not appear why he should forfeit that right by becoming a coalier, more than by becoming a soldier, who is as much bound to obey the command of his superior officer, as a coalier is bound to obey his master; and men's natural rights are not to be taken from them, because of the possibility that another may abuse his power and influence over them.
The Lords found, 'That coaliers who are burgesses were not to be debarred from voting at the leeting of the unincorporated burgesses.'
On occasion of this suspension, an incidental complaint was given in by Andrew Leitch, against Robert Hall notary, one of the unincorporated burgesses, setting forth, That he, as a writer, being employed to send for the said suspension, had, after the past bill, with a sist upon it, was returned to Rutherglen, containing the names of fifteen coaliers, with his own hand added the names of other three. In his answer, he admitted the fact, but excused himself on pretence of a mere error in judgment, as the three were in the same case with the others, .and only not contained in the bill when it passed the Ordinary's hand, from the writer's not knowing their names, and that he had not done the thing in a hidden way, but openly, believing no harm in it, and by advice from the writer, who raised the suspension, as a thing usually practised: And further pleaded, that as these three, as well as all the others, had voted, notwithstanding the passed bill, no damage was sustained against them: And lastly, that as the three coaliers themselves were not complaining, it was not competent for any other to complain.
The Lords had no regard to these answers, and found, 'That the filling up the names of three persons more than were contained in the bill, was a practice illegal and unwarrantable, and highly dangerous to the public; and therefore found him incapable of exercising the office of a notary-public, deprived him of the said office, ordered the clerk to the admission of notaries to call in his protocol, and decerned him in the expenses of the complaint, and in forty shillings to the poor; and granted warrant to macers and messengers to apprehend and imprison him, ay and while he should pay the above sums.'
No 6. Coaliers having, by allowance of their master, gone to another coalwork, where they continued above a year, were found still reclaimable; and the detainer, after requisition, was found liable in the statutable penalty.
1748. July 6. Gibson of Hillhead against Scott of Kirklie.
John Gibson of Hillhead pursued Andrew Scot of Kirklie for delivery of four of his coaliers detained by him, and for the penalty of £100 Scots, incurred for not delivering each of them when required, in terms of act 11th, Parl. 18th, James VI.
Pleaded in defence, That John Gibson and William Wilson, two of the coaliers, had acquired their natural liberty, by being a year absent from the pursuer's heugh, and consequently he could not be bound to restore them; which was repelled by the Lord Ordinary, 14th February 1747, in regard it appeared by the defender's letters produced, he had been allowed by the pursuer to entertain them at a time his own work was not going: And the Lords, 12th February 1747, refused a bill, in so far as it reclaimed against this part of the interlocutor.
John Ferrier and John Buchannan, two of the coaliers, had also been entertained on a tolerance, and being required had returned, though not immediately; but afterwards, taking an opportunity of a quarrel with their master, went back to the defender, and being restored on a judgment of the Justices of Peace, the pursuer alleged they had again deserted, and were entertained.
The Lord Ordinary had further 'repelled an allegeance, that requisition of coaliers ought to be made personally, or at the dwelling house of the master at whose work they are working; not only in regard that the practice is notourly known to be only to require them at the coal-hill, but that a process was brought within year and day of the requisition, and so far from compliance shewn with it, that the defender knowing John Ferrier and John Buchannan, two of the coaliers, to be the pursuer's, fraudulently endeavoured to seduce them from his service, by entering into contracts, mentioned in the debate, in direct contrariety to the act 1606; and therefore adhered to a former, interlocutor, finding the defender liable in the penalty of the said act, and to restore them to the pursuer; and repelled an allegeance founded upon complaints of these coaliers against the pursuer, in respect the defender ought immediately, at least to have dismissed them from his work, upon the requisition, or raising the process, leaving them to prosecute their complaints as accorded of the law.
Pleaded in a reclaiming bill, That Buchannan having preferred a complaint: before the Justices of Peace for such usage, as was a sufficient ground for leaving his work, brought proof thereof, and obtained a judgment, fining this pursuer in 40s. sterling, and ordaining, him to find caution to keep the complainer, skaithless in time coming; on performing which, ordaining the complainer to, return to his work, which he complied with; and therefore there could be. no. penalties due for detaining him, while he had a just ground of withdrawing; there could also no penalties be due for not restoring on demand coaliers who were employed by tolerance from their master, in respect the act of Parliament had only in view fugitives, although damages in this case might be due; neither could any penalties be due upon a requisition at the coal-hill, which was no sufficient certification to the master.
Answered, That the act prohibited entertaining coaliers without a testimonial from their master, or an attestation of a sufficient cause of removal made,, by a Judge; so that a complaint afterwards made and proved, was no defence, for not putting the coalier out of the work, upon requisition, which was sufficient at the hill: The act also simply prohibited the hiring coaliers without, such testimonial, which a person detaining them after requisition, though he had a testimonial at first, plainly offended against, as that was then at an end.
The Lords adhered to the Lord Ordinary's interlocutor, in so far as it found, the defender liable in the penalties of the act of Parliament for each of the two coaliers, John Ferrier and John Buchannan.
It had also been pleaded, That the penalty of the act could not be due for Gibson and Wilson, who, at the requisition, had been year and day out of the pursuer's service: To which it was answered, That being away by allowance, their desertion only commenced from their being required to return, which the Ordinary took to report, and the report is not yet made.
No 7. The proprietor of a coalier had a rei vindicatto at common law, though more than year and day had elapsed, since the coalier had left his service.
1754. November 19 . Thomas Dundas, Esquire against Mr John Macleod, Advocate.
Robert Simpson, a collier, belonging to the coal-work of Quarrel, having differed with the tacksman of the coal, deserted the work in the year 1737, and Went to Mr John M'Leod's coal-work at Bowhouse.
Mr Dundas afterwards purchased the lands and coal of Quarrel, and got an assignation to the coaliers, and, among others, to Robert Simpson; whereupon he brought a process against Mr Macleod, concluding for the delivery of the said Robert Simpson.
Pleaded for the defender; That Robert Simpson had been away several years from the coal-work of Quarrel, and had been several years at the defender's coal-works without interruption, and without being redemanded by his former master; and therefore the defender was not obliged to restore him; for, by a coalier's being absent above the space of one year from his master, the master losses his property in him; and if the coalier has wrought during the space of one year at another work, he becomes a bound coalier to that work. And that such is the common law with respect to coaliers, appears from the nth act of parliament 1606; whereby it is enacted, 'That in case any receive or entertain coaliers, salters, or coal-bearers, without a sufficient testimonial of their master whom they last served, the master from whom they came, challenging their servants within year and day, that the party whom frae they are challenged, shall deliver them back again within twenty-four hours, under the pain of one hundred pound Scots, to be paid to the persons whom frae they passed.'
From which act, it is to be observed, 1mo. That possession gives the right to the coaliers; for they are to be restored to the master whom they last served, and not to him to whom they first belonged; 2do, That their former master loses his right to them, if he do not redemand them within year and day after their leaving his service; seeing the order for restoring them is only in case requisition be made within year and day of their leaving their service. It cannot be alleged, That the statute only meant that the penalty of L. 100 Scots could not he claimed, if requisition be not made within year and day; for the statute has made no provision for restoring coaliers after their being year and day absent from their former master; which it surely would have done, if the property of them remained with him after the year.
Answered for the pursuer; That no law has introduced so short a negative or positive prescription of the right to coaliers as is contended for by the defender; and no such prescriptions are either enacted, or supposed, by the statute 1606. That act has declared it to be unlawful to receive or entertain another man's coaliers, without a testimonial from the master whom they last served, or at least an attestation of a reasonable cause of their removing, subscribed by a magistrate; and a coal-master receiving a coalier without such testimonial or attestation, is guilty of a direct transgression of the law; and therefore a possession so unlawfully attained can never entitle the offender to the property of the coalier.
The remedy introduced by the statute is a summary and possessory one, in favour of him who had the recent possession of the coalier, against the unlawful receiver and detainer, in case requisition be made within year and day; but if requisition be not made within that space, the master does not thereby lose his property in the coalier, but may recover him by an action at common law. Thus, though the action of spuilzie be limited by statute to three years, yet this prescription of the summary and penal remedy does not give the spoliator a right of property in the goods spuilzied after the three years; but an action for restitution, and damages is competent against him at any time within forty years.
'The Lords found, That the pursuer had right to the property of the coalier.'
Lord Kames reports the same case:
In the year 1737, John Drummond of Quarrel, having set a coaliery within his land to James Club, delivered over by inventory his coaliers and bearers, under obligation to restore them at the issue of the tack; and, among others, Robert Simpson, his wife and their four sons. This tack expired in the 1749; and the same year Mr Dundas purchased the estate of Quarrel, with the coalieries, and also the coaliers contained in the foresaid inventory. The purchaser coming to be informed, that Robert Simpson, with his wife and children had left the coaliery, and that they were employed by Mr M'Leod at his coaliery of Bowhouses, raised a process against Mr M'Leod, subsuming, That Robert Simpson, his wife and children, were the pursuer's property, and concluding for restitution. The defence was laid upon the act 11th, Parl. 1606, entitling coal-masters within year and day only, to demand restitution of their coaliers. As an inference from this act, it was urged, that after year and day action does not lie; and therefore that the defender must be assoilzied, with whom Simpson and. his family have wrought several years peaceably and uninterruptedly. It was answered, That the pursuer's property cannot be taken from him but by his consent, or by prescription; that the prescription introduced by the statute is only of the extraordinary remedy introduced by the same statute, for obtaining restitution of coaliers who desert their service, who, upon requisition, must within twenty-four hours be restored, under the penalty of L. 100 Scots; but that there is nothing in the statute to infer, that the possessor of another man's coalier acquires the property by lapse of year and day without requisition. After the lapse of year and day, the extraordinary remedy is gone; but the ordinary remedy of a rei vindicatio remains.
The Lords sustained the action, and preferred Mr Dundas.
I was not satisfied with this interlocutor. One fact not ascertained nor mentioned, appeared to me of consequence, viz. whether Simpson and his family left the Quarrel coaliery, because they could not find employment. If they did, I am clear that they were free after the year and day. For in general, there subsists a mutual contract betwixt the proprietor of a coal and his coaliers; they live by their work, and have no other subsistence. If they are bound to work to him, he is equally bound to furnish them work. Hence, from the nature of the thing, they cannot remain his slaves longer than he furnishes them with work. In this view, it appears to me that the year and day has been justly established to ascertain matters between a master and his coalier; that if a coalier be allowed to be absent for year and day, this is a probatio probata either that there was no work for him, or that he was allowed to go with his master's consent. And this appears to be the most natural construction of the aforesaid act; for as it provides only for the case where coaliers are claimed within year and day, it appears to be understood by the legislature, that no claim lies after year and day, because the statute is altogether silent, upon that case. - If this construction be not admitted, I see not that any man can have the property of a. coalier, except the first proprietor with whom the coalier was born, and in whose coaliery the man first wrought. In the present case, Mr Dundas founded his right upon possession only; and supposing Simpson to have been formerly the property of another, Mr Dundas, according to his own argument, could have no title; and yet this fact was not enquired into. If he had a title, it must be of a singular nature: he must be held quoad the former proprietor a precarious possessor only; and at the same time quoad Mr M'Leod must be held as the real proprietor.
No 8. A coalier working without paction at a coal work was not ad-scriptus might desert it when he pleased
1758. March 1. Robert Bogle against Robert Cross.
James Gray of Dalmarnock, proprietor of a coal work near Glasgow, gave it up some years ago, and allowed his coaliers to go to what masters they pleased. Six of them, at length, with consent of James Gray, settled at a coal-work belonging to Robert Bogle of Shettlestone; where some of them remained less, and others more, than a year, when they were enticed away by Robert Cross of Barrachny to his coal.
James Gray, notwithstanding the dismission of his coaliers, had been in the regular use of requiring them back annually from the masters they worked with, in order to preserve his right to them, in case he should ever set up his coal again.
Mr Bogle, upon the desertion of the coaliers, as above, reclaimed them from Mr Cross, alleging, that he had a preferable right to them, in respect of their having been fixed to his coal with consent of the former proprietor.
Answered for Mr Cross, The laws respecting coaliers give this right of reclaiming only to the original master. But here Gray is the master, and Bogle has the enjoyment of them only pro tempore, by his allowance, ido. At any rate, the right of reclaiming belongs only to that master who has been in possession of the coalier for year and day; and therefore the pursuer cannot reclaim such .of the coaliers as have not served him for that time.
'The Lords found the pursuer not entitled to recover any of the coaliers in question.'
Lord Kames reports the same case:
James Gray of Dalmarnock, having resolved to discontinue his coal-work far sometime, permitted his coaliers, till he should have again occasion for them, to seek for employment in the neighbourhood. Six of them accordingly were hired by Bogle of Shettlestone, and entered to his coaliery. But after having .wrought there some months, they left that work for another coaliery in the neighbourhood belonging to Cross of Barrachny. Bogle of Shettlestone, apprehending himself to have the benefit of the act 11. P. 1606, required back the coaliers, and brought an action before the Sheriff for the penalty of L. 100 Scots for each of them, in terms of the statute. The following defences were offered. 1st, That the six coaliers did not belong to the complainer's coaliery, but to that of James Gray of Dalmarnock, and therefore, that James Gray only was entitled to make the requisition, idly, independent of Mr Gray's right, that the complainer was not entitled to the privilege of the statute, in regard the six persons claimed had not served at his coaliery for year and day, and therefore were not his property, but at full liberty to hire themselves where they thought proper. The Sheriff having pronounced an interlocutor, 'Finding that the possession had by the pursuer of the coaliers libelled, not being for the space of year and day, does not make him proprietor of these coaliers, so as to found him in a claim for the penalties imposed by the statute,' the cause was advocated, and an interlocutor was pronounced by the Court of Session, finding, 'That Mr Bogle the pursuer is entitled to recover the coaliers in question, as the master whom they last served; and decerning the defender to restore them accordingly ; but assoilzieing from the penalties in the statute.' This interlocutor goes upon the supposition, that a coalier working at a coal to which he is not adscriptus, cannot however desert that coal at pleasure, but may be reclaimed by the proprietor of the coal; and the President endeavoured to support this proposition by the words of the statute above mentioned, giving power to the master whom the coalier last served to require him back within year and day. But, upon a reclaiming petition and answers, this interlocutor was altered, and the Sheriff's interlocutor was adhered to, finding that the pursuer had no claim to the coaliers in question.
It occurred to me at advising, that the statute could not intend the privilege of reclaiming a coalier under a penalty to any but to the proprietor of the coaliery to which the coalier is bound for life; because such privilege ought not to be given to any other, as-it would be absurd to give any man a power of reclaiming a coalier who is not bound to him by law or paction.
The clause giving power to the master whom the coalier last served to require, clearly means the master to whose coaliery the coalier was last a slave ; and it may well happen that a coalier may be successively a slave in different coalieries. The coaliery to which he is first a slave runs out, he is thereby free. For a man cannot be a slave in a coaliery which no longer exists. The coalier enters to another coaliery, which also running out, he may be successively a slave to many. What time may be requisite to enslave him to a new coaliery seems a little uncertain. My reason for fixing upon year and day is the following. A native bondman is free, if suffered to remain quietly in a town for, a year and day, Reg. Maj. L. 2. cap. 12. §17. Therefore a coalier should be also made free, if his master, demand, him not back within year and day, supposing it to be known where he is. The above mentioned act appears to proceed upon this footing ; for the requisition is confined to the year and day ; and if this be right, the master has not even a rei vindicatio after year and day.
No 9. The proprietor of a coal work, in possession of a coalier for year and day, could reclaim such coalier, and recover the penalty of the statute 1606 from any third party, to whose coal-work he had betaken himself.
1761 January 22. Thomas Dundas of Quarrole, Esq; against Jon Kirk, Overseer, of the Coal-works at Grange.
Mr Dundas, in the beginning of 1760, brought an action against John Kirk upon the statute 1606, for the redelivery of some coaliers, who, he alleged, had been enticed away from his Coal-works, at Quarrole, by the defender; as also, for the statutory penalty of L. 100 Scots, for having detained each of the said coaliers, after having been legally required by the pursuer to deliver them up.
James Brown, one of these coaliers, had worked in the Grange coaliery from September 1756, to October 1757; and, in November 1757, he began to work in Quarrole coal-work, belonging to Mr Dundas, and continued to work there pretty regularly till the end of March 1759, when he returned to Grange works.
Henry Love had been employed in Quarrole coaliery from August 1755 to April 1758; but from, that period, till February 1759, he had not worked in Quarrole coaliery ; and, before the end of the year 1759, he went to work at the Grange coaliery.
David Frew had never worked a year at Quarrole coal.
Observed from the Bench; That where the proprietor of a coal-work had been in possession of a coalier for year and day, it gave him such a right, as entitled him to reclaim the coalier from any third party, to whose work he had betaken himself
The Lords found, 'That James Brown had been year and day in the possession of Mr Dundas, and that the defender was liable to the pursuer in the penalty of L. 100 Scots ; but, in respect the pursuer had not proved that Henry Love and David Frew had been year and day in his possession, they assoilzied the defender from the process, so far as concerned them.'
No 10. Coaliers, working at a coal during a lease, became bound to the coal, not to the lessee.
1764. January 24. Robert Spence of Stonelaw against James Scott Weaver in Rutherglen.
In 1739, coal having been discovered in some grounds belonging to the town of Rutherglen, and Robert Spence; James Scot obtained leases from the town and Mr Spence, and began a coal-work, which he continued till 1755, when he gave it up, and wrought a coal, in the lands of Corsehill, which he had purchased.
James Scott, during his lease, engaged a number of grown-up coaliers, and trained up severals from their infancy. He wrought the coal in the lands belonging to the town of Rutherglen, as well as in those belonging to Mr Spence, but chiefly that in the latter.
In 1760, Mr Spence having resolved to carry on the coal-work at Rutherglen, which James Scott had left, insisted that he had right to all the coaliers that had wrought at the coal in his grounds during James Scott's lease.
This gave rise to mutual processes between him and Scott, concerning 13 coaliers, before the Sheriff of Lanarkshire. Scott claimed from Spence some coaliers that had gone back from his coal at Corsehill to the Rutherglen coal; and Spence claimed from Scott some coaliers, whom, though acquired by him during his lease, he still detained at Corsehill. The town of Rutherglen did not claim any of these coaliers; nor did any of them assert their freedom.
The Sheriff, after a proof had been led in Mr Spence's process against Scott, found it proved, 'That William Love, &c. did work as coaliers at the pursuer's coal of Stonelaw, which is his property, before they wrought at the defender's No coal of Corsehill; and, therefore, that they belonged to the pursuer, Spence, in property; and ordains the defender, James Scott, to deliver up the foresaid coaliers.' And, upon advising the counter process at James Scott's instance against Spence, the Sheriff assoilzied the defender, 'in respect that the pursuer was only tacksman of the Rutherglen and Spence's coals, which can give him no right to the coaliers; and in respect it appears from the evidence, that the coaliers so acclaimed by him, and that wrought at his property-coal of Corsehill, had, before that time, been working coaliers, bearers, and gatesmen, or winsmen, in the coal which was the property of the defender, Spence, or his predecessors.'
Scott having brought the cause, by advocation, before the Court of Session, the Lord Ordinary took it to report.
Pleaded for Spence; That, by the law of this country, a coalier is not bound to a person, but to a coal, being quasi adscriptus glebae, by the act of the law, for the sake of public utility; consequently, a lessee can have no right to him after his lease expires.
If a lessee could transport a coalier from one coal to another, that might be hard upon the coalier, as some coals are more easily and profitably wrought than others; and it would be hard upon the coal-master, as a coal-work might be ruined by having the coaliers suddenly withdrawn from it, which was the very thing the law meant to prevent, by introducing the bondage of coaliers.
Pleaded for Scott; Coaliers are not adscripti glebae, or slaves, but servants, bound to serve their master as long as he has work at coal to give them : There was neither coal-work nor coalier in Mr Spence's ground in 1739. The coaliers were all acquired during Scott's lease; and he has as good right to them as to the engines he erected, or instruments he provided.
The interlocutor of the Lords was, 'Conjoin the two processes, and find the coaliers not bound to the tacksman, but to the coal in which they wrought during the currency of the tack; and remit to the Lord Ordinary to proceed accordingly.'
No 11. What made a coalier a bondsman
1764. December 5. Sir James Clark against Ker and Penman.
A Boy who enters into a coal-work where his father is a bondsman, becomes a slave, not by consent, but from the nature of the slavery, which extends from father to son; and from which rule practice has introduced an exception with respect to children that abstain from working.
The coal-work to which Ker and Penman, two lads under age, were bound with their fathers, being wrought out, these lads took employment in a neighbouring coal-work belonging to Sir James Clark, but without binding themselves as slaves. Having afterwards left the work, Sir James claimed them in a process as his bondsmen; and they were assoilzied upon the following medium, that if a man of full age, whether a freeman, or bound to another coal, enter into a coal work without any paction of slavery, his working for whatever time will not make him a bondsman; and that the argument concludes a fortiori in favour of the defenders, who are under age.
No 12. Coaliers might be employed at any coal possessed by their master.
1769. February 11. Clark, and Others, against Hope.
Mr. Archibald Hope, proprietor of the coal of Harrylaw, was lessee of the coals of Edmonstone, Monkton, and Woolmet, all belonging to different proprietors. And the question came to trial, in an action at the instance of some of the coaliers bound to these coals, whether they could be compelled to work at a coal different from that to which they were respectively bound? Or if, upon the work being stopped, they were entitled to an attestation of a reasonable cause of removing, in terms of the act 1606, c. 11.?
Pleaded for the pursuer; Coaliers are adscriptitii glebae, bound to a particular coal; and, therefore, not transferable to another. So they are considered by Sir George Mackenzie, Obs. 1606, c. 11, and by Bankton, 1. 2. 82. When a coalier consents to become bound to particular coal, he considers the circumstances of it, its situation, its air, its easiness in working; and he cannot, without injustice, be carried from a coal where he can earn large wages, with ease to himself, and safety to his health, to another coal, where less is to be earned, where, perhaps, there is scarce room to work, or where the air is pestilential and. noxious.
When the coal is wrought out, the coalier is free; but, if he can be carried to a different coal, though belonging to a different proprietor, his bondage must be perpetual. And it makes no difference that Mr Hope is lessee of all these coals. With respect to each of them, he must be considered as in the place of the different proprietors; and, as the proprietor of Edmonstone could not send one of his coaliers to work at the coal of Woolmet, so neither can the tacksman of both carry the coaliers of the one to the coal of the other.
Answered; The situation of coaliers is not to be determined by the strict principles which apply to the adscriptitii glebae of the Romans, or homines proprii of Germany. Coaliers are bound to their master, and so they are considered in the statutes 1606, c. 11. and 1661, c. 56. They are obliged to serve him in the work of coal, unless they can obtain a testimonial from him, or an attestation from a magistrate, that he has no work to give them.
The doctrine pleaded for the pursuers would go so far as to prove, that coaliers could only be employed at the individual coal to which they entered; that they could not be carried to a different coal in the same estate; nay, that they could not even be carried to a different seam, in an edge coal, where there are great variations in the space of a few yards.
But this doctrine has not been received by the Court. On the contrary, in February 1762, the Marquis of Lothian, having purchased a coal, was found entitled to carry the coaliers upon it to another coal belonging to him, at the distance of two miles. And a similar judgment was pronounced in 1763, in a question between Wemyss of Cuttlehill, and some of his coaliers.
As, therefore, the proprietor of a coal is entitled to remove his coaliers to any coal where he has work for them, the tacksman must be in the same situation; and, during the course of his tack, have the same power over the coaliers as the proprietor would have had, if he had kept the coal in his natural possession. 'The Lords sustained the defences, and assoilzied.'
*** Observe, it is mentioned in the above case, that a similar judgment had been given in two former instances, viz. Marquis of Lothian in 1762, and Wemyss of Cuttlehill in 1763.
The state of coaliers is now entirely altered. By act 13th Geo. III. c. 28, they are fully emancipated, and are only bound as common servants, or labourers.