Hood Family and Coal Mining

Clerk v Ross and Others


28. 'The representation for Sir James Clerk and John Clerk' 16 June 1773, in the court case against the bound colliers of Dryden Coalworks


[A lot of this document is restating previous evidence and arguments put forward, but the parts below are new]

"that by a lease dated the 23rd and 31st January, 1771 General Lockhart of Carnwath set to the representatives the coal of Dryden. By this lease General Lockhart transferred to them the right of all his coalliers and their bearers belonging to his coal of Dryden, and empowered them to recall from all other coalworks at which they might happen to be employed, and oblige them to work and Dryden coal or any other coal works belonging to representers during the currency of the lease. This is the substance of these clauses in the lease upon which the present process turns. The representer has accordingly raise the process against all Bound coalliers belonging to General Lockhart, declaring that in consequence of their lease they had a right to their service, and concluding that they should be obliged to return to the coalworks of which they were proprietors.

The defenders who were in number of about thirty, in preparing their defences divided themselves into three classes, one class submitted themselves to be General Lockharts bound colliers but pled that they were not obliged to work at any coal belonging to the representers as their master, had no right to transfer their service to others to be employed at any coalworks except that to which they were originally bound. A second class acknowledged themselves the children of Dryden coalliers but denyed that they had ever entered at that work".
third class never employed .....

not neccessary to repeat procedure finding that the general defence that the representers could not employ the colliers anywhere except Dryden had been repelled. Your Lordship likeways by an Interlocutor 21 February 1772 Gave it as your opinion That the circumstances of being the child of a Bound Coallier was not sufficient of itself to fix a bondage for life, but that it was necessary to prove an actual entry or that they otherways had engaged themselves.

By the laws and practice of the Country a solemn entry or engagement is not required to bind a coalier, and it is not the custom in the coaliery of Dryden to make a formal entry of the coaliers names in their books, a coalier who engages himself at a coalwork must take care of his liberty either by a formal agreement or by one conceived in such a manner as he can instruct by undoubted evidence. If no agreement or stipulation appears, his fate must be determined by the opinion which those about them entertain of the nature of his engagement. The state of coaliers does not deserve the appelation of a state of slavery. By means of the general idea which the country entertains of their situation whilst they enjoy the rights of citizens, they enjoy at the same time a monopoly of their own possession whilst soldiers and sailors are bound for life and starve upon the smallness of their pay, the coaliers are earning wages which if properly managed might enable them to live mush better that any of the inferior ranks of society.

….it will be proper to make a few observations upon the manner in which a coalier may bind himself, and by which the property of him may be acquired. And here it may be remarked that neither statutes nor decisions of our courts point out the mode in which the property of a coalier is acquired. Our statutes and such decisions as have been given relative to complaints for employing coaliers contrary to the inclination of their masters proceed uniformly upon the idea that the property of a coalier is acquired by his engaging himself to work as a coalier without any stipulation or agreement by which his liberty may be preserved. The law which uniformly supposes all coaliers bound for life does not point out any length of time from which this agreement may be presumed. Therefore a coalier who engages himself to work, must take care of his liberty by stipulating his freedom with his master and the onus probandi is laid upon him by the law and practice of the country to ascertain such a stipulation. It may be likewise observed that there is no particular age required at which a person can consent to bind himself and no distinction is made betwixt the years of pupillarity and minority. The parents by consenting for their child and employing him in the work bind him for life …[Clerk goes on to argue that if this is not acknowledged then no collier could bind himself until majority – this argument has not been put forward by defenders]

the same witness (William Watson) after deponing that he was sent by the representers to require the coaliers to return to their works. depones that along with others he personally claimed each of the defenders and depones that the coalliers working at Niddry did not deny that they were Dryden coalliers, that they went to General Lockhart to enquire how he had given them up with the tack of his coal. That William Liddell the defender acknowledged himself to be Carnwath's coalier and said it was needless for him to struggle his going to the pursuers colliery at Pendriech, that he accordingly went there that the pursuer Mr Clerk paid what debt Liddell owed to Mr Dewar of Vogrie, and of that debt gave Liddell down five pounds in consideration that Liddell as belonging to Dryden coalworks was to work with the pursuer during his tack, and that Liddell continues to work upon these terms to this day. He afterwards deponed that he was sent a second time to Niddry when he desired the defenders working there to come to the pursuers works at Pendriech and Loanhead. That they acknowledged themselves to be Mr Lockharts coaliers and said if he would set his coal works agoing at Dryden they would go there and work, but that they would not go either to Loanhead or Pendriech, that upon this the deponent desired the defenders to come and speak with Mr Clerk on the Monday following and promised to give them their day's wages on that condition; that accordingly they came up in a body to Eldin to Mr Clerk. That they all acknowledged themselves to be Carnwath's coaliers, and a great many of them agreed to enter to Sir James and Mr Clerks Coaliery and to continue thereat during the currency of the tack with Carnwath upon the pursuer Sir James and Mr Clerk their paying the defenders debts owing at Niddry coal works and other places, and getting deduction of five pounds each from the said debt, that upon the agreement that defenders insisted to be immediately removed from Niddry to the pursuers coalworks. That, Thomas Hoods and William Reid came home imediately to Mr Clerks coaliery at Pendriech, that William Ross younger and William Pentland agreed upon same terms.
The same witness depones that when he went to Niddry, Peter Hunter tacksman of that coal desired the defenders to go peaceably to the pursuers coalworks at Pendriech and Loanhead, that Mr Hunter told the deponent he would give them all the assistance in his power.
James Moffat confirms the evidence of Watson the former witness, and he particulary depones that the Dryden coalliers that were at Niddry came up in a body to Mr Clerks house at Elden and that the deponent was not present at what passed between Mr Clerk and them, that he saw them on the green after they had been with Mr Clerk, and that two of them, Thomas Hoods and William Reid insisted that carts should be sent for their furniture next day, and depones that the carts were sent down to Niddry the day following and brought Reids and Hoods their furniture to Pendriech.

.... your Lordship has determined the question already against William Liddell as having entered into a bargain with Mr John Clerk one of the representers to work to him as a Dryden coalier during the currency of the lease. The representers begg leave to say that the most of the defenders are precisely in Liddells situation and have made the same bargain as he has done; particularly it appears from the evidence of William Watson and James Moffat that Thomas Hood, William Reid, William Ross and William Pentland made precisely the same bargain as William Liddell did, and ought to be discerned against upon the same medium. Besides William Reid and Thomas Hoods have been working to the representer Mr John Clerk in consequence of an interlocutor of the sheriff dated 27 March 1771 herewith produced, and by which they are bound to continue at his work during the tack of the Dryden coal.


© 2012   A Russell