THe perpetuating of the Magistracy and Government of the City of Edin­burgh in the same persons, or in the Hands of few by Turns, being con­trary to the fundamental Laws and Constitutions of the City, tending not only to the discouragment of other well deserving Citizens, but al­so to the appropriating and wasting of the Common good, for supporting the privat Interest and Ends of such as aim at perpetual Magistracy; these Projects and Designs have always been most unacceptable to the generality of the Inha­bitants.

There was never a more open and manifest design of perpetuating the Ma­gistracy in the Hands of a few, than at this time, a particular Faction having continued constantly in the Council, and influenced all the Elections these four years bygone; during which time, more Violations and Invasions have been made upon the Set, and Constitution of the City, then can be instanced in any preceeding Age, and that not only by overturning and contemning the Laws for regulating the manner of Leeting and Election, but by gross and ex­orbitant Gratifications and Donatives, without either cause or pretext, not­withstanding that during the Influence of this Magistracy, the Good Town lost the Imposition upon Malt, which was the greatest part of their Revenue, and which was enjoyed and possest by their Predecessors, with the universal consent of the Inhabitants, the Brewars, and all who bore the Burden, and thereby was so far differenced from the case of the illegal Exactions, discharged by the Claim of Right, that the Privy Council upon full Debate did continue the Ma­gistrats in possession thereof, and accordingly they did possess it until it was [Page 2]discharged and cut off by an Act of Parliament; and if their Imprudence was not the occasion of that Act, at least it must be said, that no Donative (whereof ever their Predecessors were possessed) was discharged by any King or Parliament, except what fell out during their Magistracy; yet that Misfortune did not hinder the exorbitant Gratifications, which were designed to support and advance their Facti­on, for which there lyes a Complaint at the instance of the same Pursuers before the Lords Commissioners of Their Majesties Thesaury, against these who have had the influence of the Magistracy these years bygone, and who unwarrantably elicit and delivered up a Bond for a great Sum of Money, and who to cover their shame in delivering that Bond, do appear before the Thesaury to support it as a just Debt, contrary their Trust, which doth oblige them to defend the Common-Good a­gainst all unjust Burdens and Impositions.

There is such regard due to the Magistracy of this Metropolitan City, that the Ci­tizens of it could not be induced to state any publick Complaint against them upon a few or small Transgressions; but finding at last that the fundamental Constitutions had been utterly neglected and contemned at three several successive Elections, and that by these Streatches, the Government of the City is now divided betwixt Sir John Hall and Sir Archibald Muir, who have succeeded by Turns, and who still continue the same persons upon the Council, that influenced the former Elections, and who were retained, and acted in the Council manifestly contrary to the Set, and the general Inclination of the City both Merchants and Trades, and all that were any clog or weight upon them, being now thrown out of the Magistracy & Council. Some of the Neighbours who joined not in any of their Illegalities, nor were elected to any Office since Michaelmass 1690, and refused to sit and act with Sir Archi­bald after his Election, until they took a formal Protestation, which the Records bears, that their coming to Council should not import any approbation of the Election.) Have at last been constrained to raise a Process before the Privy Coun­cil, for punishing of these who contraveened the same, and have entred into the Ma­gistracy by illegal Elections, and for annulling the last Election that the Magi­strats and Council of the preceeding year, may proceed to a new legal and formal Election, excluding only such particular persons as shall be proven guilty, or accesso­ry to the Invasions and Incroachments Libelled.

This Process being called, the Privy Council were pleased to hear Parties distinctly in their own Presence upon every Article of the Libel; point by point, and afterwards to allow both Parties to inform upon the Grounds that were Debated, that the Business might be distinctly understood, and deliberatly deter­mined, according to the Weight and Importance of it.

The first Article of the Libel, is, that Sir John Hall being Elected in May 1689, and being bound by Oath in the usual form, not to continue above two years in the Office together, was necessitate to dimit in April 1691, at which time there appeared a Faction in the Town Council, who were determined by right or wrong, to advance Sir Archibald Muir to the vacant Office, and albeit that Party had a great Support at the time, yet the appearance of a Faction, gave early sus­picion of the design, of perpetuating the Magistracy in the hands of a few, and this procured such Opposition to that design, that it could not be brought about with­out extraordinary Streatches.

The ordinary Council of Edinburgh consists of 25 persons, and the Provost or Praeses doth Vote first, and hath a second Vote in case of equality, and the Set requires a Council of thirty persons, to be all present at the Leeting of Ma­gistrats, and 38 at the Election, who must also be all present, so that the Coun­cil of 30 having power of making Leets, may exclude whom they please from [Page 3]these Leets, and consequently from the Magistracy, and therefore the great In­trigue of Elections, is the framing of the Council of 30, for whoever is Ma­ster of the plurality of that Council, is by consequence Master of the Election, by excluding all Competitors.

The Method of making up the Council of 30, is by calling all to be present, who have Right to Vote in the Leeting, and if any be absent, these who are pre­sent have power to chuse others to represent the absents, and these who are Elect­ed to fill up the Council are called Proxies, so the Strugle on either hand was to have Proxies Elected favourable to the design of either Party, and upon the matter the plurality of these who were present and upon the place, had the true influ­ence to turn the Election to either side.

It happened that there were only 22 of 30 upon the place, whereby eight Proxies were to be Elected for filling up the Council of 30.

The Provost having Demitted, the eldest Baillie did precede, and as Praeses, had the first and last Vote in case of equality; and in the choise of the eight Pro­xies, some were elected cross to the Design of advancing Sir Archibald, by an un­controverted plurality, but as to the greatest number of Proxies, the Council di­vided equally eleven to eleven, whereby the Praeses, who did not favour Sir Archibald, did cast the ballance against him, by his odd Vote.

Sir Archibald and his parties hopes being defeated by loss of all the Proxies, they protested against the Praeses, his taking an odd Vote, and did withdraw in a most irregular and mutinous manner.

These who remained might have joyned with the eight Proxies nominat, who being elected, had as good right to act as any other Members of the Council, and might have elected new Proxies in place of these who had withdrawn; but ha­ving no other design, than peace and concord, they rather choosed to adjourn the Council to another diet; and to justifie their procedure, did exhibit an In­formation to the Duke of Hamilton, President of the Privy Council, which his Grace having communicat to the Board, and Answers being made to it, both parties were called to debate the Point anent the right of the odd Vote.

Sir Archibald and his faction, finding themselves worsted in the matter of the odd Vote, did take the boldness and confidence to assert a manifest falshood at the Council Barr, which was the foundation of annulling the former Election of Pro­xies, and introducing Sir Archibald to the Magistracy, and of all the stretches in the following Elections, viz. That the Proxies were not at all regularly Elect­ed by either party, in so far as two old Counsellours of the former year, who were upon the place, had right to have concurred with the present ordinary Coun­cil, which would have made up the number of twenty four, whereby there was no place for eight, but six Proxies to fill up the number of thirty. This impudent and false assertion did gain credit with the Privy Council, who found that the two old Counsellours ought to have been called to an extraordinary E­lection, being upon the place; and that no Proxies should have been chosen for them, unless they had refused when called; and that any Election without their being called, was informal and irregular; and therefore ordained the Magistrats and Council to begin a formal Election de novo.

Sir Archibald and his faction having the advantage of this unexpected Interlo­cutor, they knew their impudent assertion would not abide a second view; and therefore did peremptorly resolve to precipitat an Election before the next diet of Privy Council, and when they were met, to begin this new and regular Ele­ction, the first step was still to choose the Proxies, for filling up the Council of [Page 4]thirty; and then they considering that the Penalty of transgressing the Set, is In­famy and Incapacity, they durst not adventure to admit these old Counsellours, as having any proper right to sit, and Vote with them in the Election of the o­ther Proxies; but rather choosed to throw off the Mask, and owne to the World, how impudently they had averred a falsehood at the Council Bar, as if any old Counsellours had a proper right to concur with the ordinary Council in electing of Proxies; and a Quorum of the ordinary Council of them present, did Elect Proxies so fill up the Council of thirty, in the very same way and man­ner as the former Proxies had been Elected, without admitting these old Coun­sellours; So that if the first Election of Proxies was void, the second Election was much more so, being after the Act of Council, founded upon their own as­sertion, and being contrary to, and inconsistent with both; and if the first E­lection of Proxies was regular and formal, as truly it was, there was no place for a second Election of Proxies.

This being an Important Article, which is the foundation of the present Ma­gistracy, and all the Illegalities that followed; The Pursuers make use of no o­ther probation, than the Town Council Books produced, wherein is recorded the Information exhibited to the Duke of Hamiltoun, with the Answers and Act of Privy Council, annulling the former Election of Proxies, all in the Sederunt the 5 th of June 1691 and upon the 6 th of June, there is marked a Sederunt of the ordinary Council, not comprehending these old Counsellours; and in the same Sederunt, the said James Baillie and Patrick Johnston, who were pre­tended to have a proper Right to joyn with the ordinary Council, and have a Vote in the Election of Proxies, are Elected Proxies in place of two old Counsel­lours, which proves the point as perfectly as any thing imaginable can be.

It is answered, 1. That it appears by the Council Books produced, that James Baillie and Patrick Johnston, were present in the Council of thirty, at the Leeting, and in the Council or thirty eight, at the Election of Sir Archibald Muir, and whether they be marked present as Counsellours, or as Proxies, is but a meer niceity, which the Clerk may not have regarded in the marking of the Council Books; and it is of no moment, or importance, whether they were there as Counsellours, or as Proxies, seing they were present; neither can every small error or omission be sufficient to annul an Election, which would lessen the au­thority of Magistrats.

2. The Election 1691. cannot be quarrelled after so long time, because there hath interveened two Elections; So that the Magistrats then Elected, have en­joyed the full time of their Offices, and have now fallen out by course, and by such a consequence, the Pursuers might run back to quarrel Elections at any time within the prescription of fourty years.

It was Replyed, The Council Books do clearly prove, that the procedor at Sir Archibalds Election, was unsuitable to what he had asserted, and contrary to the Act of Privy Council: And seing the Law has fixed certain Rules in Ele­ction, for no other end, but to prevent Faction in, and inhauncing of the Ma­gistracy; These Rules ought to have been precisely performed, especially when there was so equal a Justle, that a Grain weight was sufficient to cast the Bal­lance; And Sir Archibald thought it no Triffle, to assert to the Privy Coun­cil, that old Counsellours, who ought to have been called to the Leeting, were neglected; but when that falshood did gain credit, and served his turn, he pleads its now become but a Triffle, though upon that Triffle his Magistracy is foun­ded; but under his favour, if he hath either asserted a Falshood to the Privy [Page 5]Council; or if his assertion were true, and yet he had neglected to perform, what both the Privy Council and the Set did require; he and all who p [...]omoted that Election, ought to be most severely and examplarly punished.

2. Whereas it is pretended, that it is the same thing, whether they be marked present as Counsellours or Proxies. The Defenders are in a wilful mistake, for the whole intrigue of an Election, is to gain the plurality of those who have right to Elect the Proxies; and therefore Sir Archibald plead before the Privy Council, that these old Counsellours had right to be Electors of the Proxies; and the Election was not annulled, because they were not Elected Proxies, but because they were not called to the Election of Proxies, and they were not so called at the 2 d Election, more than at the first.

3. Whereas it is pretended, That the marking of these as Proxies, may be a mistake of the Clerk. It is answered, (may be) is no Defence, but truly it is impossible to be so; for immediatly after the Act of Privy Council is Recorded upon the fifth, the Sederunt of the sixth of June begins, which contains all the Members of Council that were then present: Thereafter follows the Acts of that Council; and one of the Acts thereof was, that they Elected James Baillie and Patrick Johnston to be Proxies, and for a further evidence that it would not possibly be a mistake, the same Sederunt contains a protestation ingrossed, taken against the Council for the time, because they had walked down-right contrary to the Act of Privy Council in that particular, even before the Election of Ma­gistrats; so they could not pretend ignorance.

To the 2 d, That the Magistrats Elected in June 1691, are now gone out by course before they were quarrelled; and by that preparative, an Election might be called in question at any time within prescription.

It is Replyed, The Pursuers do not conclude the annulling of that Election 1691. But do libel these Violations and Invasions upon the Set, as Crimes pu­nishable in Sir Archibald, and these who were accessory to that illegal Procedor, and to satisfie the Privy Council that this Magistracy has its foundation upon a Falshood, and that it hath been continued by a tract of practices, illegal and un­just, that therefore the last Election should only be annulled, and that these of the former Council who had no accession to the foresaid Violations, may pro­ceed to a new and formal Election.

The next Point insisted on, was the Precipitation of the first Election, the Act of Council being of the 4. of June without calling or hearing the first Pro­xies who were legally Elected, the ordinary Council fell to be upon Friday the 5. of June, & the Town Council having continued till after one a clock, the Prae­ses & a number with him having withdrawn, the youngest Baillie did take upon him to preside, & did call an extraordinary Council upon Saturnday the sixt, where Pro­xies were Elected to fill up the Council of 30, which could not be found out in all Edinburgh, without calling the Towns Servants and Pensioners, who by the 22. Act of the meeting of Estates, were excluded from Voting in the Election by the Pole, and even these could not be had without Threats and Promises, and another extraordinary Dyet was called upon Munday, without the Warrand of the first Magistrat for the time, and at that Dyet Sir Archibald was both Leet­ed and Elected Provost, whereas the Set appoints the Leeting to be in one day, and the Election in another, pages 15 and 16. and all this was necessary, because both Council and Session were to sit the day following, which would have stop­ped their Procedure.

[Page 6]It was Answered, the Privy Council having appointed a Provost to be Elected, it was their duty to proceed with all convenient Diligence, and tho the eldest Baillie did withdraw, he could not dissolve the Council without their consent, and any Magistrat may call a Council, and a Quorum being met, they may proceed. 2. There is no Law or Custom excluding Towns Pensioners from Voting, and these who are aimed at, being persons who have been in the chief Magistracy, they are yet capable of the same Offices, much more to be Proxies, and the Act of the meeting of Estates relates only to that particular Article. 3. The Leeting and Election of the whole Magistrats at Michaelmass does require two Dyets, but the Election of a single Magistrat at an extraordinary Dyet does not require the same, and the Defenders deny any Threats or Promises?

It was Replyed, that the three eldest Baillies having withdrawn after one a clock, and after the Council was adjourned to the next ordinary Dyet, it was a Pre­sumption without precedent, that the youngest should not only take upon him to act as Praeses at that Dyet, but also to call an extraordinary Council the next day, it be­ing the constant rule of all Judicatures that none can call an extraordinary meet­ing, except the Praeses or principal Member upon the place, especially in matters of the greatest Moment and Importance. 2. The meeting of Estates having excluded Towns Pensioners and Servants from Voting by the Pole, it was incon­gruous and illegal that such should be admitted as Members in a Council of 30. and the calling of them, had a tacit Insinuation of Threatning, in case Sir Archi­balds Election had proceeded without them, so that they were neither at freedom to stay away, nor at freedom to Vote when they came, least they should lose their Pensions, without which severals of them could not subsist, and there were more direct Threatnings used against others to force them in, and all this practi­sed, notwithstanding of Protestations taken, which are also recorded in the Se­derant of the 6 of June. 3. The Leeting and Election in one day, was unwar­rantable, and what the Set doth appoint [...] is to be observed at every extraordinary Election, unless there could be some important Reason of Disparity, otherways all that is appointed by the Set, might be neglected at an extraordina­ry Election upon that Pretence, for the Set supposes the ordinary time of Election, and by that reasoning, the Defenders might pretend that there were no need for 30. or 38. persons, for the Leeting and Election of a single Magistrat, and there is nothing more suitable than that the Leeting and Election should be at different Dyets, because after the Leets are compleated the Trades who [...] of 30. are bound to retire, and meet with the eight extraordinary Deacons in the Magdalen Chappel before the Election, and it were very incongruous that the Magistrats and Merchant Council, should continue to sit in Council, when they could Act nothing till the Trades did return.

And as to the Instances of the Leeting and Election of Sir Thomas Kennedy and Sir Magnus Prince in one day, that can be no precedent, because they were na­med by the Kings Letter, and there was only the shadow, but not the substance of a free Election.

The next point insisted in was, that the Set page 10, provides that none be upon the Council above two years together, except they be Office-men, or by vertue of their Office be upon the Coucil, and by the Set page 9, Tit. Council. It is clear that none are Reckoned Office-men but the seven Magistrats, and the rest of the 25 being 18 Persons are only Counsellors, and by the Set page 8. Tradesmen are not Capable to be Magistrats or Office-men, yet George Stirling hath been upon the Council ever since the Popular Election, albeit Instruments were taken against [Page 7]him at Michailmass 1691 that he could not be continued: And the like at Michaelmass 1692. And he was so far convinced of it, that he acknowledg'd in face of Council the continuing of him was contrary to the Set, yet the was perswaded to make bold with it. In like manner William Menzies hath been above two years upon the Council without Office, and these were active Instruments in the last Election, who ought not at all to have been Members or concerned in it.

It was answered, the Set prohibiting any to be above two years upon the Council, contains a quality, viz, except they be Office-men, or by vertue of their Office on the Council, and George Stirling and William Menzies are both in the case of that exception, for neither of them were evere above two years together upon the Council in the same Capacity. For Deacon Stirling was first a Trades Counsellor, then two years an ordinary Deacon, and then a Trades Counsellor, and now is continued upon the Council. And in like manner William Menzies, was first Treasurer, and then old Treasurer, afterwards old Baillie, and lastly old Dean of Gild; And so changed Offices yearly. 2. Custom hath cleared this, for William Ha­milton Tailyor continued Eight years on the Council, by changing his Character from Deacon to Trades-Counsel [...]or: And Alexander Reid Gold-Smith was con­tinued in the same way upon the Council Seven years; And the Pursuers mistake is in this: that they do not cansider a Deacon as an Office, whereas ordinary Deacons are certainly by their Office upon the Council, and so George Stirling falls under the exception of the Set.

It was Replyed that the Defenders gave so much Proof of their Ingenuity in the former Pleading anent the Odd Vote, that the Pursuer cannot be afraid that the privy Coucil will be easily Imposed upon, to take their Commentare upon the Set as good Corn, and what is now pretended, is just as False and absured as the Old Assertion of the Rights of old Counsellors to Vote at extraordinary Elections; And this Commentare upon the Set would utterly enervat and overturn the whole Design of it, which is to Exclude the possibility of Inhancing Magistracy, for at this Rate; The Bulk of the Council might continued for life by changing Cha­racters once in Two years: and the thereby be absolutely Master of Electi­ons, and the Exception would be just als large as the Rule.

2 As this consequence were most absurd, so the Commentare destroys the Text, for neither of the the two Defenders fall under the Exception of Persons that may be continued above Two years, and it is absolutely false that either of them are Office-Men, or upon the Council by Vertue of their Office.

For clearing of this Important point, the meaning of the word Office-Men, is exprest Page 9. Title Council, bearing that the Council doth consist of 18. Persons, beside the Office-Men to wit Provost, Bailies, Dean of Guild and Treasurer, who are the seven Magistrats: so that Office-Men and Magistrats are the same thing, and the seven Magstrats with the 18. Counsellors make the Number of 25; And it is a mighty measure of considence to pretend that an ordinary Deacon, or an old Baillie, or old Dean of Guild, is an Office-Man or more than a Counsellor, seeing this is expresly contrair to the said Page 9. Title Council, which doth not only express the Number of the Council, but set down the Persons that make up that Number of 18. viz. Old Provost, four old Bail­lies, old Dean of Guild and Theasurer, and three Merchants mo, with eight Crafts-men, whereof six Deacons and two other Crafts-men, commonly called Trades-men counsellors; And the Pursuer desires to know if either o [...] the two Complained upon, were in other Capacitie than these, that are contained in the enumeration of the Council, except the time that William Minzies was Theasurer, which the Pursuers do not reckon or Complain on.

[Page 8]3. Whereas it is pretended, that at the least, the two Defenders, by vertue of their Office, were upon the Council, and so they fall under the latter part of the Exception. It is answered, this is another quibble in the vain hopes that the Set will be mistaken; and though that one mistake should overthrow the whole intent of it, the Defenders make no matter. But for clearing the meaning of that part of the Exception; The import of these words, (or by vertue of their Office be upon the Council) is such as are upon the Council without Election, and that is the seven old Magistrats, for these who are Magistrats this year, are old Ma­gistrats the next year of course, by their Office without Election, as appears by the Set, page 9. and more fully by the two year Act subjoined to the Set, page 4. which is annually confirmed by Oath, and there is no other can enter into, or remain upon the Council without Election, or by vertue of their Office, ex­cept the old Magistrats allanerly: And whereas it is pretended, that VVilliam Meinzies was an old Magistrat, and George Stirling as an ordinar Deacon was u­pon the Council. It was answered, none of them were upon the Council by vertue of their Office, but by Election; for albeit the present Magistrats of this year, continue upon the Council the next year without Election; yet if any of them be advanced to a higher Office, or die, or demit, in that case, there is a vacancy of an old Magistrats place, which must be supplyed by Election, as in this case VVilliam Meinzies was advanced to be old Baillie, on the decease of Tho­mas VVyllie; and although Thomas would have been old Baillie of course by his Office; yet VVilliam Menzies cam there by Election, and cannot by changing his Character be perptuat in the Council by several Elections; In like manner it is a rare pretence, that George Stirling by his Office of ordinary Deacon is up­on the Council, for it is Council that Elects him an ordinary Deacon, and he is not an ordinary Deacon without Election; But the Trades do make choice of fourteen Deacons: And out of these, the Council doth choise six ordinary Dea­cons, and the Councils choise hath this restriction by the Set, that they cannot by Election continue any Person above two years a single Counsellor, but if a Counsellor be advanced to the Magistracy which a Crafts-man cannot, he may be advanced the third year, and may a fourth year be an old Magistrat, and so may advance to a higher degree of the Magistracy, till at last he go out. And where­as several Precedents are condescended upon, which are alledg'd to Introduce a Custom of continuing Persons longer than two years upon the Council. It is an­swered, the Examples are only two, not sufficient to Introduce a Custom, and a practise contrair to the Set, can be no Rule to overturn what is clearly provid­ed by it, and it cannot be condescended upon, that ever Protestations were taken against these Persons, or that their continuing was approven by any Judicature, and it is not every Violation of the Set, that draws Persons to a publick Complaint against a Magistracy, it is true some Magistrats may have transgressed against it in one particular, and some in another: But this Magistracy hath trampled upon, and invaded it on all corners, and the Meeting of Estates having a special regard to the Imposing of Magistrats by an undue Election, did state that as an Article in the claim of Right to be contrair to Law, and did once appoint Popular Elections that Magistracy might ever proceed by a legal and due Election in time coming. So that no Precedent before the Poll, can be sustained against the Constitution of the City.

[Page 9]Another notable Violation of the Set was at the last two Elections, in so far as the Set appoints 30 persons to be present at Leeting, and expresses the diffe­rent and distinct Capacities of each of these 30 persons, pages 14, and 15. and appoints the said 30 persons, with eight Craftsmen more, to be present at the Election; yet Deacon Carse and Deacon Stirling were elected, each in two distinct Capacities, the one an extraordinary Deavon and Trades-counsellor, and the other, to wit, Deacon Stirling an old Counsellor, and a new Counsellor at the same time; and because the Set provides 30, and 38 to be present at Leeting and Ele­ction respectivè, therefore two Proxies were chosen, one for Deacon Carse, and another for George Stirling, though they were both personally present.

It was Answered, There is nothing in the Set to hinder any person to be ele­cted in two several Capacities, and particularly to hinder an extraordinary Deacon to be a Trades-counsellor, or a Trades-counsellor one year to be continued ano­ther, and that does not abridge the number of these who Leet and Elect, because Proxies are chosen to make up that number.

It was Replyed, This is also altogether against the Set, for it doth not only de­termine the number of persons, but likewise doth express their several Capacities, and if one might supply two Capacities, the number of the Council might be a­bridged to the one half; as for example, if George Stirling being a Trades-coun­sellor the last, might also be continued this, by the same reason the other Trades-counsellor might be continued, and likewise the three Merchant-coun­sellors, and so 5 of the old Council would be also 5 of the new, notwithstanding the Set, page 15 provides that the new Council of 18 persons, and the old Coun­cil of 12 shall meet for the making of Leets, and by this means the old Council, will be reduced to seven persons, so that it is clear that the Set doth provide the 12 and 18 to be different and distinct persons to prevent Packing, and whereas it is pretended, that 5 Proxies may be chosen to supply the place of the old Trade or Merchant Counsellors, it is answered, that does not at all take off the Incon­venience, for by the Set the full number are once to be chosen of distinct several persons, and the absence of any Party is to be supplied by Proxies, but that there should be a want in the Constitution, and in place of 38 there should be only 33, or a smaller number elected upon the Council, that would intirely enervat the Set. 2. The supplying these wanting persons by Proxies, doth not at all answer the design of the Set; for these who have the Plurality of the ordinary Council, can chuse Proxies as they please, with prospect to the particular design in hand, and so are absolutely Masters of any Election, and if this were once allowed, a factious Party would always abridge the number, that they might fill them up, upon a particular prospect; and the gaining of one Vote, is most ordinarly to gain all the Election, and one Vote of the Trades is worth two of the Merchants, because the Trades being incapable of Magistra­cy, they are ordinarly invidious and jealous of inhauncing the Government, and with great difficulty can they be pacqued, and therefore the Set allows them a greater Interest at Election than at any other time, they begin ordinarly less than the third, and at the Election they are 18 of 38, and by immemorial custom they do absolutely rule and influence Elections by the Magdalen-Chappel, for they are allowed to meet separatly there and to Vote upon the Leets of every Magistrat, and who ever hath the plurality of Votes, the smaller part by immemorial custom doth join with the greater, whereby they have 18 uniform Votes at the Election, and by gaining two of the Merchant-Council, they have the Plurality, so that if a pacquing Magistracy should be allowed to abridge the number of Trades, till the E­lection [Page 10]did occur, the Merchants in the ordinary Council, (who are easily swayed by advancement into the Magistracy) and who have the greatest influence in it, would chuse Proxies for Trades one or moe for the purpose, and it would be no difficulty to gain the plurality of the Trades in the Chappel, and thereby to carry the whole Election.

And as to the Alledgance that the like has been practised before, There is only a single Case instanced at the time when Elections were not free, which can make no Rule.

Constant Custom hath prevailed to give the Magdalen Chappel the over-ruling power of Elections, wherein no great Inconveniency hath ever been found, but at the last Election the major part being against Sir John Hall, seven of 18 that were for him, did combine, and enter into a written Ingagement that they should adhere to him, which is a Practise without precedent contrary to Law, and pub­lict Utility, tending only to Faction, and this point being simply denyed, it is proven by the Oaths of the Subscribers, all of them having acknowledged the Signing of a Paper, predetermining them as to the Election.

The Set also appoints, page 16. that the Council of 30 should solemnly protest before God, that they shall chuse without Fead, Favour or Collusion, and the secret Practises for carrying on this Election being known, it was required that every Member should be appointed to protest in the Terms of the Set, which was ab­solutely refused, and Instruments taken thereupon, and it is false which is pretended, that ever Baillie Blackwood did acquiesce, else the Instrument would not have been insert.

The Proxies not having answered expectation at the last Election, they were removed by a Vote of Council, and tho the eight extraordinary Deacons were pre­sent, yet they were not admitted to Vote either, whether they should be removed, or who should be chosen in their places, because none of them were for the present design.

It was answered. 1. Proxies have only a precarious Right, and being chosen only for a particular effect, they might be removed and new ones chosen at every Dyet. 2. The extraordinary Deacons had no Interest to Vote anent the Proxies, because they have only Right to Vote in the Election.

It was Replyed. 1. It is true Proxies are only chosen to a special effect but that effect is all that relates to the Election, and they have as good right to act and vote in relation to it, as any other in the Council, it is true they are but Proxies for ab­sent persons, & if the persons whom they represent should appear at the Dyet they are elected or any other, they had no more Interest, but in absence of these for whom they are Proxies, they cannot be removed, and they never were removed in any case. 2. The Set appoints 30 persons for Leeting, and the Title Electi­on, page 16. doth provide that the saids 30 persons with 8 extraordinary Dea­ons shall Elect, so the same 30 who have Right to Leet, are also to Elect, and cannot be removed, and it is without all precedent to remove Proxies once cho­sen, and in this case the Proxies upon the first Election, had already attended two Dyets, and were cited to attend the third at the Election, tho they were remo­ved when they came. 3. The Set, page 17. appointing the 8 extraordinary Deacons to be present at the Election, they are a part of the Council that day, and nothing can be Voted in that Council, whereof they are a part, without al­lowing them a Vote, yet they were not suffered to Vote anent the Proxies, and if they had they would have retained them.

[Page 11]The Set doth also provide that none shall be advanced to the Magistracy, unless they have been one year or two upon the Council before, yet Patrick Johnston was Elected a Baillie at the Election 1691, and James Bowden at the last Electi­on, tho neither of them was ever a year upon the Council.

And whereas it was pretended, that annus ceptus procompleto habetur.

It is answered, the Set bears, they shall be a year or two, which must at least import that they have been one intire year upon the Council.

And seing the Pursuers have only raised this Complaint as faithful Burgesses, for the Preservation of the Fundamental Laws and Constitutions of the City, without any by end or project of advancing any of themselves into the Magistracy, but that there may be a free Election of such persons as may be acceptable to the people, and such as may be most fit for supporting the Interest and Government of the Church and State as they are by Law established, and that all of the Pursu­ers did very early evidence their Loyalty and Affection to both, and particularly when this Nation was threatned with a most unnatural Invasion, they are hum­bly Confident that the Lords of their Majesties Privy Council will be careful to preserve the Priviledges and Constitutions of this Metropolitan City, and punish the persons Guilty of, and Accessory to the foresaid Violations and Invasions up­on the Set and Decreet Arbitral, and annul the last illegal and informal Election, and Authorize the Magistrats and Council, in Office before Michael­mass last, to begin a new and formal Election, excluding always these who have been Accessory to the foresaid Invasions, viz. Sir John Hall, Sir Archibald Muir, William Menzies, George Stirling, Patrick Haliburton, and Patrick Johnstoun, and the ordinary Deacons who have been accessory to the Combination.