THe said George Lockhart and his Adherents, gave in a Complaint the last Session of Parliament, upon John Anderson of Dovehill present Provost, and the Baillies and Town-council of the Burgh of Glasgow, that the Charter granted by his Majesty, with the Act of Parliament 1690. in fa­vours of the Town of Glasgow, have not been observed in the Election of the Magistrats and Town-Council, and that the Inhabitants of the said City have been over-stented since Whitsunday 1693, in the Sum of 32000 lib. scots unduely imposed, and as unwarrantably exacted; And therefore craving, that it may be found and declared, that the Merchants and Trades-Halls in Glasgow have the right freedom and Priviledge of voting at the Election of Provost, Baillies and Town Council, conform to the Set thereto annexed, and desired to be approven in time coming; as also to have heard and seen the foresaid Imposing and Exacting of Stent more than allowed by Act of Parliament, to have been found unwarrantable and discharged in all time coming, and that such as concurred in imposing and exacting the foresaid un­warrantable Stent, ought to refound the same to these concerned.

Which Bill and Complaint having been remitted by the Estates of Parlia­ment to the Lords of Session, to be by them summarly discussed and determi­ned; The Complainers have raised their Action of Declarator before the Lords, and the same being seen and returned, hath also in pursuance of the said Remit been debated summarly before the Lords in presentia; And both Parties being ordained to inform. It were superfluous here to take notice of several Conclusions insert in their said Declarator, as anent John Anderson & o­thers their continuing in the Magistracy more than a year, and their being e­lected thereto, they not being trafficking Merchants, and the Towns impos­ing Burdens and Exactions of T [...]nnage, Cartage, Oranage, and other Du­ties upon Merchant Goods, &c. Which are not contained in, the said Re­ [...]sit, and consequently cannot be insisted in in this summar Declarator.

Nor indeed were it more to the purpose to take nottice of several other things that were alledged by the Pursuers in the liberty of their debating, which do as little concern the Points truly remitted, and now to be informed on.

But that the Defenders may make their Information as closs as possible, they do confine the same to the Points of Debate given in by the Pursuers themselves to the Clerk, and which have been seen by my Lord President, and are shortly as follows.

First, If the Election of the Provost and Baillies of the Town of Glasgow in May, June or July, and at Michaelmass 1689, was not null, and being null, if the Chartor granted to the Community and Council in the year 1690. did not give the power of Election, at least the fixing of a Sett for regulating future Elections to the Community.

2. If the Chartor to the Community and Council gave the sole power of Electi­on to the Council, or to the Community, represented by the two Halls.

And 3. If the Chartor giving power of Election to the Council is not to be understood of the extraordinary Council, whereof the said two Halls are a part, especially in the matters of Elections, where they have a vote of the Elections of all the Officers that were in use to be chosen by the Council, without dependence upon the King or Bishop, and without which two Halls the Ordinary-Council can neither buy nor sell.

In order to the discussing of which points, it is to be considered, that the Town of Glasgow was very anciently made a Burgh Royal, by Chartors from our Kings and Princes, which, albeit it was done, Reserving alwayes to the Bishop his power, as to the Magistracy, in respect that the Burgh at first was his Burgh of Regality, yet it is without Question, that by these Chartors, they had right to, and were possessed of all the Priviledges of a Burgh Royal, both as to Trade, the Convention of Burrows; and their vote in Parliament, as also of the Rights and Priviledges of their Incorporations, and Town Council, and all other parts of their Constitution, except in so far as con­cerned their foresaid Dependence reserved to the Bishop in the matter of their Magistracy, and in the manner that he exerced the same.

2. That with and under this Constitution, the City of Glasgow had its par­ticular Custom as all other Royal Burghs have, as to the manner of making and choising their Council and other Officers, and preparing their Leits for Baillies in use to be present [...]d to the Bishop, and doing all other things re­lative to their Council and Magistracy, except precisely what was reserved to the Bishop as said is.

3. That when Bishops were first suppressed after our Reformation from Popery, the Arch-bishoprick of Glasgow, with all the powers and priviled­ges that belonged to the Bishop, were given by the Kings Chartor to Lodovick Duke of Lennox, who exerced the same as the Bishops had done without a­ny Variation; Likeas, when the Bishops were again restored, the Arch-Bi­shop continued in the Right and Exercise of the same power and priviledge until the second Suppression, and the Act of Parliament 1641, in favours of the Town of Glasgow; By which Act making mention of the power and priviledge, which the Bishops, and after them Lodovick Duke of Lennox had in the Election and Nomination of the Magistrats of the said Burgh. Our So­veraign Lord, with Advice of the Estates of Parliament, and the special con­sent of James then Duke of Lennox, present and consenting, Statute and Or­dained; [Page 3] that the Burgh of Glasgow in all time coming, should have also free Liberty in the Election of their Magistrats yearly at the accustomed time, as any other Burgh within the Kingdom, with this provision, that the Provost, Baillies and Council of the said Burgh, should present yearly in time coming a Leit of three Persons to be Provost to the said Duke, and his Successors of which they should nominat one, for the ensuing year, but in case the Duke or his Commissioner for the time should not be present at the Castle to receive the said Leit, Then it was declared lawful for the said Magistrats, and their Council, to go one in the Election of their provost for that year, as the said Act of Parliament whereof a Copy is hereto subjoyned more fully bears, and according to this Act of Parliament, the Election of the Magistrats of Glasgow proceeded until the year 1662, that the Estate of Bishops was restored, at which time the Arch-Bishop of Glasgow did likewise return to his former power and priviledge as to their Magistrats, but to their heavy Coast, and almost to their utter undoing.

4. That at the late happy Revolution, tho the Circular Letters for choising Commissioners to the Convention of Estates, were directed to the City of Glasgow, as to all other Burghs Royal; yet when by ordinance of the Convention, the Power and Liberty of a popular Election by Pole of their Council & Magistrates, was allowed to the Burghs Royal, there was a Demure as to Glasgow, because of their former Dependance upon the Bishop now devolved upon his Majesty, until the King was therewith acquainted; Whereupon it pleased His Majesty to write to the Secret Council upon the 13 June 1689, That there had been a Petition presented to him by the Inha­bitants of Glasgow, making mention that there had been no day assigned to them for a popular Election as had been granted to other Burghs Royal; But that His Majesty being well satisfied with the good Service of the Inha­bitants and Burgesses of the said City; Did therefore Authorize the Lords of Privy Council to take such Methods as they thought proper, for procuring to the City of Glasgow the benefite of the Act of the meeting of Estates for popular Elections, and that conform to the same, some day before the 10 July then next should be assigned to the said Inhabitants for electing their Magistrats and Town-Council, as the said Letter of the date foresaid, where­of a Copy is also hereto subjoyned, more fully bears: And accordingly The Lords of His Majesties Privy Council, by their Act of the twenty fourth of the same Moneth of June 1689, proceeding upon a Petition of the Inhabitants of Glasgow, did give order and Warrand for a new and free Election of the Baillies, Dean of Gild, Thesaurer and Town-Council of Glasgow, to be made upon the 2d and 3d days of July then next by the pole of habile Burgesses, appointing them to continue until the usual time about Michaelmass that year, and ordaining them to send up a List of three Persons to His Majestie, that he might make choise of one of them to be Provost: Which Ordinance aad Caveat was put in, because by the fore­said Act of Parliament 1641, after the second Suppression of Bishops, this power as to the Provost had been given to the Duke of Lennox, as come in the Bishops place; Whereupon the Lords of Privy Council thought fit notwithstanding of the foresaid illimited Order and Allowance given by His Majesty, by his Letter of the 13 of June 1689, to make a particular refe­rence in Order to the Provost as said is; Which being again signified to His Majesty, He by another Letter of the date the 19 of September 1689 de­rected to the then present Msgistrats and Council [...]f Glasgow, making mention [Page] that the power formerly belonging to the Bishop was devolved upon His Majesty, Doth therefore, and in Consideration of the Zeal and Affection of that City, Authorize and Require them to elect and choise als well their Provost as other Magistrats, for the ensuing year, at the ordinary time, and in the accustomed manner: Notwithstanding His Majesties Right of name­ing their said Provost, as the said Letter, whereof a Copy likeways hereto an­nexed, testifies: By which it is clear that His Majesty having superceeded to name any of the three sent up to him in Leit to be Provost, betwixt the short space from July 1689 to the Michaelmass ensuing, thought fit by the said Letter to dispense with any such Leit, and to give them the full power of Electing their Provost at Michaelmass thereafter, and that as fully as by the Act of Convention of Estates, and His Majesties Letter and the Ordinance of Council they had got the power to choice their other Magistrats by a po­pular Election till the foresaid Term of Michaelmas, and thence furth to con­tinue in its accustomed manner, as in all the other Burghs of Scotland.

But that this power of Glasgows choising their Provost and Baillies and other Officers given them by the Convention of Estates, His Majesties Let­ters and the Ordinance of Privy Council might be setled as their perpetual Right; It pleased His Majesty by His Chartor under the Great Seal of the date the 4 of January 1690, upon a very ample narrative of the good Rea­sons moving His Majesty there to; and that by the abolition of Bishops, the full power was devolved upon him; Not only to Ratify, Approve & Confirm all former Grants given to the said City, its Gildrie, Trades and Incorpo­rations; But of new to give, grant and dispone to the said City and Town-Council of the same ample Power, Right and Faculty of choising their Pro­vost, Baillies and all other Magistrats in the ordinary manner and time as any other Royal Burgh in Scotland are in use to do or may do, beginning their first Election at Michaelmas next, which was Michaelmas 1690, and so furth in all time coming, as the said Chartor whereof a Copy likewise hereto subjoyned bears: Likeas in pursuance thereof, there past in Parliament the said year 1690, not an ordinary Ratification in course, but a plain statutory Act upon the 14 June that year; Whereby it is Statute, Enacted and Ordain red, That the City of Glasgow and Town-Council thereof, shall have power and Priviledge to choise their own Magistrats, Provost, Baillies and other Officers within Burgh, as fully and freely as the City of Edinburgh or any other Royal Burgh enjoys the same, as the said Act being the 15 of the printed Acts, the second Session of this current Parliament bears.

This being a plain narrative of the Constitution of the Burgh of Glasgow, Town-Council and Magistrats thereof, and of all the steps that were made therein, until it arived in the said year 1690 at the present settlement, where­in it hath since most firmly and uniformly continued, it might justly be won­dered what either Envy or Mutiny it self could find to reprehend in its pre­sent establishment.

But the Pursuers having undertaken to object, must be both heard and answered, and therefore following the foresaid Points by them set down: It is affirmed, 1. That the Election of the Provost and Baillies of the Town- of Glasgow in May, June or July, and at Michaelmas 1689 was most legal and valid. For 1. The Election of the Town-Council, Baillies, Dean of Gild and other Officers in July 1689 was by warrand of the Act of the Convention of Estates, fortified and applyed by his Majesties Letter to the Lords of Pri­vy [Page 5] Council, and their express Act and Ordinance; But as to this it was replyed for the Pursuers, That the Act of Convention was only made in favours of Royal Burrows, whereof Glasgow was none; And that tho his His Majestie u­pon the moving of this Scruple wrote a Letter to His Council, and they or­dered the said Election as said is; Yet it is evident, 1. That the Archbishops Right and Power, was not then abrogat, Prelacy not having been abolished by Act of parliament till the 22 of July 1689. And 2. That esto it had been abrogat, yet the Lords of privy Council proceeded upon the Supposition that the Act of Parliament 1641, in favours of the Town of Glasgow was revived; Whereas in effect it was not revived: But that Act with all others in preju­dice of the Bishops Rights, having been taken away by the Act 1662, that restored them to their Rights and Possessions, as in the year 1637, It is evident that the King at least in June and July 1689, had not only the Election of the Provost but of the Baillies and other Magistrats, which neither the Conventi­on of Estates, nor His own Letter proceeding upon wrong Information could take from Him.

To which it was duplyed for the Defenders, 1. That the plene and Sove­raign Power of the Convention of Estates is too Sacred to be thus drawn in debate; For as upon the circular Letters the City of Glasgow as other Roy­al Burghs elected their Commissioner by Pole to the said Convention, where he was admitted as freely as the Commissioners from all other Royal Burghs So by the Ordinance of the same Convention, Glasgow as well as other Royal Burrows was allowed to settle its Magistracy by a popular Election, and the Scruple that fell in in, the Application of this Ordinance to Glasgow, was certain­ly removed by the best hands, viz. both by His Majesty and the privy Council and so did plainly confirm what the Convention did ordain.

2. As to the Bishops power, It was fundamentally abrogat by the Claim of Right, finding Prelacy to be an insupportable Grievance, and that there­fore ought to be abolished; And tho it was not formally abolished until the foresaid Act of Parliament in July thereafter; Yet it is without question that by the Claim of Right, Prelacy was so certainly abolished, that the Lords of Session found that the Bishops had no Right to the Whitsundays Rents, nor were they allowed to pretend to the same. But 3. By the Abolition of Prelacy and the Claim of Right all the power of the Bishop did undoub­tedly devolve upon the King; and His Majesty by His foresaid Letter of the 13 of June 1689, did fully authorize the Lords of Council to give to the City of Glasgow the benefite of the Act of the Convention of Estates, as to their Council and hail Magistrats, and it was only the Suggestion of the Lords of Privy Council, that the Act 1641 did give His Majestie the choice of the Provost, which yet the King thereafter dispensed with; so that his cer­tain and express Will to have freed the City of Glasgow from the beginning from all dependance either upon the Bishop▪ or upon Himself, as to the choice of any of their Magistrates, and that they should have the full benefit of the Act of the Convention was thereby fully declared: Whereby it is mani­fest that the Election of the Baillies, Dean of Gild and Town-Council of Glasgow in July 1689, was most lawful; and so much the more, that by the foresaid Act of the Convention, and His Majesties Letter and the Ordinance of Council, it was made by a Popular Election by Pole on purpose to make it more valid, and to take off all pretences in the contrary.

Whence it most certainly follows that the Election at Michaelmas 1689 was legal and valid beyond all contraversie; For albeit that by the Ordi­nance of Council they were warranted to make the Election of the Baillies Dean of Gild and Town-council to continue until the usual time about Michaelmass thereafter; yet it is most certain, that it was no ways the mean­ing either of the Convention or the Council, that the popular Elections then ordered should have no farder effect, but singly that the Elections of Burrows being thus settled upon their truest Basis, the Council and Magi­strats so elected should continue till Michaelmass, and then should farder pro­pogat the Settlement by electing their Successors, according to the ordinary custom of the Burgh: And thus his Majesty by his Letter to the Magistrats and Town-council of Glasgow, that had been elected by pole, bearing date the 15 of September, authorizes them to choise as well their Provost as their other Magistrats for the ensuing year; Whereby he fully declares that by the popular Election, their Council and Magistrats were settled upon the right foot, and that that Council and these Magistrats might choise as well the Pro­vost as succeeding Baillies for the ensuing year, which was a full and incon­travertible Warrand.

This Position, viz. That the Election of the Provost and Baillies of the Town of Glasgow at July and Michaelmass 1689, was Legal and Valid being then thus cleared. It is evident that the Chartor thereafter granted in Jan­uary, 1690, to the Community and Town Council of Glasgow could not be understood, to give either the power of Election or the fixing of a Sett to the Community, as if the Town Council had been a null Council, because both the Validity of that Council it fully cleared from the abovementioned Grounds; and likeways by the same Chartor, it is expresly supposed and con­firmed.

The second point contraverted, is; if the Chartor to the Community and Town Council gave the sole power of Election to the Council, or to the Community Represented by the two Halls, viz. of Merchants and Crafts, and that it gave it to the Town Council, is the express Words of the Chartor, Its true, the point is Captiously stated, if the Chartor gave the sole power to the Council, because the true meaning of that Chartor, as of all Chartors of that nature given to Burghs Royal, is that the powers, Liberties and Priviledges therein mentioned, are given to the Community of the Brugh Originally and Radically, or as Philosophers speak in actu primo aut in actu signato, but to the Town Council of the Brugh representatively, or in actu secundo & in actu exercito, and so we see it manifestly in the foresaid Act of Parliament, 1641, in favours of the Town of Glasgow, which expresly statutes, That the Town of Glasgow, should have the free Election and Choising of their Magi­strats yearly as any other Brugh, which was neither then or ever since un­derstood: But that the said Power and Liberty was given to their Council and Ordinary Magistrates to be by them Exerced for the Burgh and Com­munity thereof; and so in effect, are all Chartors given to all the Burghs of Scotland of their Powers and Priviledges constantly understood, viz. That they are given to the Brugh Originally, and to its Magistrats and Town Council Representatively, and thus the very Chartor and Act of Parliament in favours of the Town of Glasgow in the year 1690, explains it self, viz. To the Community and Town Council as to Ed [...]h or any other Royal [Page 7] Brugh; which is certainly to the City Originally, and to its Town Council Representatively, as is the Case of all other Brughs Royal.

Besides the Chartor bears to the City of Glasgow and its Town Council in the ordinary manner, But ita est, that the ordinary manner, was always per­formed by the Town Council except as to that Dependance that they had u­pon the Bishop, and during the Suppression of Bishops upon the Duke of Lennox, which Dependance being defignedly, and evidently taken away by the foresaid Chartor and Act of Parliament, in clear as the Sun Light, That the meaning of both was, that the City and Town Council of Glasgow, should have the freedom of the Election of their Magistrates, as freely as any other Brugh Royal in the ordinary time and manner, That is plainly, that in place of the Presentation of Leits of their Baillies and Provost, that formerly they were oblidged to make to the Bishops and Dukes of Lennox, they should now have a free and Independent Election by themselves.

The Pursuers Summonds of Declarator, contains a strange fancie, tho not Insisted on in the Debate, viz. That by the Chartor and Act of Parliament the Community was come in place, that is the two Halls in the Pursuers sense, is come in place of the Bishop or Duke of Lennox, so that the Town Council should present to them. But this is obviously so absurd, that neither was it urged in the Debate, nor had been here noticed, were it not to shew, to what Extravagance strain'd Invention may lead, when the Case is as clear as words can make it, that by the Chartor and Act of Parliament, the City of Glasgow is freed and exempted in the Election of their Magistrats from all Dependance either upon the Bishop or Duke of Lennox, or yet on his Majestie as come in their place, and have the same power given to their Community and Town Council, that any other Burgh Royal in Scotland enjoys.

The thrid point to be informed upon, is if the Chartor giving the power of Election to the Council, is not to be understood of the extraordinary Council, &c.

To which it is Answered, That a Chartor giving the power of Election to the Town Council of a Burgh is certainly to be understood of the same Coun­cil that is so designed and known, and which in the case of Glasgow, did for­merly make the Leits presented to the Bishop and Duke of Lennox, and now impoured to make the Election by themselves without any such Dependencie. But ita est, that this Council was never known, or heard to be the extraordi­nary Council of the two Halls, nor had the two Halls in Glasgow ever, so much as the name of the Council thereof, either ordinary or extraordinary, or are they reckoned any part of the same, nor in effect are they to this day excluded from any interest, that ever they had in the Town Councils Electi­ons.

It happens indeed with Glasgow, as with many other Brughs, that they have Specialities in their Elections, and thus the Merchant Hall has an Interest in the Election of the Dean of Gild as the Trads-hall hath an Interest in the E­lection of the Deacon Conveener, But what ever that interest may be. It is certain, that the same is neither altered nor innovat, nor doeth the Defenders at all deny it, but that which they deny, and which the Pursuers contend for, is, that the two Halls, either as the Community, or as the Town Council should have the Election of the Magistrats, which is utterly a novelty never before dreamed off.

For first, It hath been cleared, that the Community to whom the Right and [Page 8] Power is orginally granted, is to exerce the same by the Town Council their representative in the ordinary manner. 2. If more could be said for the Com­munity, the two Halls of Merchants, and Trades are not the Community but two particular Incorporations setled, for their own Uses and Ends; whereas the Community as was most distinctly defined by the Conven­tion of Estates is the body, of the Burgesses, Inhabitants excluding Honorary Burgesses, Burgh Servants, Pensionaries and Beedsmen, and to this Commu­nity of Glasgow, per expressim is the Secret Councils Order for the popular Election directed, but not at all to their two Halls, who were not then thought on. 3. Neither are their two Halls the Town Council for the Reasons al­ready given.

The Pursuers alleadge, that the two Halls have some Interest or vote in the Election made by the Town Council, but what ever that be, it is already answered, that the same is neither denyed nor offered to be altered, but would therefore the Pursuers have the two Halls to have either the over-ruling or Suprem Vote in all Elections, certainly this is a novelty that was never be­fore heard off, it is true George Lockhart and the Pursuers present a new Schem of a Sett, which their own invention have brought from Eoutopia, and now alleadge to be most agreeable to the Inclination of the Inhabitants and interest of the Brugh, but in this they have manifestly confessed their own weakness to offer a Declarator upon such a subject, all Declarators are Declaratory of a certain Right; And it is a known Maxime, that declaratoria juris nihil novi juris tribuit, what then can be declared as to this new Schem of a Sett, since it can pretend to no Right, and all that can be asserted and declared for it, is that it may be a new invention of George Lockharts, but since it is neither a­greed to by the Community of the brugh and ratified by authority; nor settled by Act of Parliament, which are the only two Methods of giving the force of Right to any set: It necessarly follows that this Schem hath neither Right nor shadow of Right, that can be declared.

The Pursuers alledged that the two Halls are necessary to the ordinary Council of Glasgow for buying and Selling; But first this is denyed. 2ly It should serve once for all, that whatever be the ordinary use and interest of the two Halls in the Town of Glasgow, either with or without the Town Council, it hath never been altered or called in question by the Defenders, and consequently no subject for a Declarator; as it is indeed none of the Conclusions contained in their Declarator; But as for that sole and So­veraign power, that is craved for the two Halls, either in making their ordinary Elections or setting down a fixed Rule for it, it is wholly imagi­nary and groundless as has been demonstrat.

All Men know, if a new Sett were to be made for Glasgow, it must either be by consent of the whole Community, with the Approbation of the Govern­ment; Or otherways by a particular Act of Parliament but to think that the Lords will declare that which is not, or that George Lock­harts Invention must be received for a legal Rule of Election; or Lastly, that it was intended either by the Chartor, or Act of Parliament, to exauterat the Town-Council, or to superceed and lay aside the Custom and Forms of the Burgh to which they expresly refer, are groundless and absurd Notions.

But the Pursuers made a great Clamour, and particularly against Dovehill, that in the Way and Method taken, he hath continued himself, and a Set of his Friends now more than these ten years, and thereby excludes all others tho honest and substantious Burgesses.

To which it is answered, That this is a Clamour that will never cease, viz. [Page 9] That such as are out, envy such as are in, and complain of their Usurpation. 2. It is a gross Misrepresentation, that Dovehill hath continued himself, or yet hath been continued since the Revolution, in as much as he hath not been Provost at any time for more than two years together, which is the ordinary time practised in all Burghs, and allowed even by your Lordships Decisions; and de facto since the Revolution, James Peadie and William Napier have been provosts as well as Dovehill, and James Peadie hath been four years of that time, which is near as long as Dovehill hath been in the Office. But 3. If the Custom which is the Sett of the Burgh be duely observed, and no Act of Parliament transgressed, nor any privat Mans Right violat, what ground can any man have to complain, or what place for this clamour, specially when it is evident that the Magistracy of Glasgow hath very happily ever since the Re­volution continued in hands true and faithful to the Government, and sin­cerely intending the good of the Burgh.

By all which it is evident, that as to the above-controverted Points, the Pursuers Declarator, is wholly groundless and absurd, and from which the Defenders ought to be assoilzied.

In respect whereof, &c.