THE PARTICULARS controverted between the Town of LEITH and EDINBURGH may be reduced briefly into two Heads; Some Relate to the Point of Right, the rest are in Fact, and points of Grievance against the Town of EDINBURGH's Doing. Although their Right were Uncontraverted.  

LEITH claims, First, the Benefit of a Contract past betwixt certain Persons, their Commissioners on the one part, and Queen Mary Dowager, in Name and Behalf of the Queen of Scotland her Daughter on the other part, dated the Penult of January 1555; By which the Queen Dowager declares, That at that same very minute of time, the Laird of Restalrig, had resigned the Superiority of Leith, in the said Q: Dowagers Hands, in Favours of the Town of Leith, to the Effect it might be Erected in a Free Burgh Royal; And therefore she obleidges her self, upon her Honour and Faith, to cause to be Erected the said Town accordingly; Leith paying to the Laird of Restalrige, 3000 pound Scots, and advancing some Timber to her Works at Leith, and the Inhabitants paying a yearly duty of 7 ss: 6 d ▪ Scots, for each Tenement, to the Queen and her Suceessors; Accordingly Leith paid the 3000 pound to Restalrig, and advanced 10000 pounds worth of Timber to her Works, whereof they have the Discharges yet extant, and being willing according to the said Contract, to pay to her Heirs and her Successors, the said yearly Duty for each Tenement. And considering with all the great Benefit will thereby arise to the whole Common-Wealth, They humbly crave that his Highness will fulfil the Queens part of the said Contract. And Erect them in a free Burgh Royal, there being no place or Situation in Scotland more Commodious for a free Burgh.  

EDINBURCH's Answers.  
TO this Contract it is Answered for Edinburgh, First, However the Queen Dowagers Contract bears, That Restalrige had resigned Leith's Superiority in the Queens hands, to the Effect Leith might be Erected. Yet Restalriges own Resignation or Disposition bears no such thing, But expressly bears to the Queen her Heirs and Assigneys. 2dly. The Contract is Contractis Conditionalli, either to Erect or Repay the Moneys. 3dly. The Contract could not bind the Queen being Minor; But the Law allows all Minors to Revoke, as well Princes as others, and she did Revoke, and thereafterwards disponed the Superiority to Edinburgh, Anno 1565. 4ly. Before the said Contract, the Laird of Restalrige had renounced in Favours of Edinburgh, all Girnelling of Cornes, selling of Wines, &c: in Anno 1398, Ratified by King James 4th, Anno 1510. 5thly. They have enjoyed the Superiority about 40 years, which cannot now be called in Question, after so long time as is statute by express Act of Parliament.   

Leith's Reply.  
TO their Answers, Leith made their Replys, Which colonel Bryan omits in his Report, and therefore would be considered. To the 1st. Seeing the Eminent place wherein GOD hath placed Princes and sovereign Rulers, doth Liberate them from the common Course of Law, and personal Execution against them, by Hornings, Inhibitions, such Legal Diligences as are not denied to other Subjects, against any fellow Subjects. Therefore it is, that even in Law, a Princess Personal Contract or Stipulation is esteemed as obliging for Security to the party with whom the Stipulation or Contract is made, as if it were Real, and had all the other Formalities requisite in Contract between Subjects: And therefore, albeit Restalrigs Renounciation bears not, That he did the same, to the Effect Leith might be Erected. Yet seeing the Queen Dowagers Contract, which is of the same day the said Renounciation, and before the same Witnesses, bears expressly, and that Restalrige's receiving the 3000 pound from Leith, is the price of the said Resignation imports no less, These are equivolent as to Restalrigs own Renounciation had carried in Favours of Leith. To the 2d. Albeit it had been conditional to pay the Money, and the Q: might have made her Election; Yet seeing the Money was never payed, the Erection is now the Alternative, only prestable, and she could never have deprived them of the only disposing Leith's Superiority, unless he had first performed the other Alternative Condition. To the 3d. The Queens mayor( as is clear by her Revocation in Parliament,) the time of the said Contract, and Gift of Baylirie, which was Nine Moneths after her Revocation, in Anno 1555: The year beginning in March as it yet doth in England, and continued so till the year 1600: Neither could she ever have Revocked the Acts done in Favours of Leith, seeing her public Revenue much 〈…〉, whereas by the subsequent dead, it was prejudged; Edinburgh having given nothing for it, neither could the Subsequent grant of the Superiority be any Revocation of the said Contract, because it is very consistent with the Right of Superiority in Mans person, for the supreme Magistrates to Erect most of the Royal Burrows in Scotland being of that Nature. To the 4th. These Particulars renounced, being personal Slaveries, or inconsistent with the common Liberty of a People, and are taken away by the Act of Union, And albeit they could be estimate praedial Servitudes, such as may be imposed, and due from one Village to another. yet they could not now be claimed by Edinburgh from Leith, because such Servitudes 〈◇〉 Confusion, so that after Edinburgh had acquired Leith's superiority in their own persons, they could not thereafter exact of them any praedial Sernitude, quìa res nemini servit. To the 5th. Anent the 40 years prescription, Leith opones the continual Interruption by their Protestation at the beginning, against Edinburgh's Right and Suspensions, and addresses to the King and his Council, and others in Authority, and Deeds of Resistance, which hath occasioned some Blood-shed between the several Inhabitants, as is nottour.    

LEITH'S Claim.  
2. LEith's Claims the benefit of a Commission of Bailery granted to them in Feber:( 1555) under the Great Seal of Scotland, expressly relative to the aforesaid Contract; By which the Queen gives Power to the Town of Leith's Commissionrie to Exercise Jurisdiction within themselves, with advice of their own Town Council, with Power of using all their Rights and privileges of Superiority as fully as she, or the Laird of Restalrig could have done themselves; And that always, and while they were erected in a Free Burgh Royal, at least until the Queen should repay the 3000 Pound, and price of the Timber, which she never did.  

City of EDINBURGH'S Answer.  
2. TO the Commission of Bailery, Edinburgh Answers. 1mo. It was Personal to the particuiar Persons therein mentioned, and died with them. 2dly. Albeit it had not been Personal, quoad them; Yet it was Personal quoad the Queen; And could endure no longer than her Life, seeing there followed no Infestment upon the said Gift of Bailery: 3dly. It was revocked, as was the preceding Contract by her revocation Registrated in Parliament. 4ly. It is Prescribed, Edinburgh having possessed the Bailery thereof now 40 Years ut supra.   

Leiths replies.  
2. TO the Bailery, Leith replies. To the first Answer; Albeit the Persons be name in the Gift; Yet that makes not the Bailery personal, because the persons therein name were these, who were Commissioners for the whole Inhabitants of Leith, who had warrant in writ to do every thing for the saids Inhabitants, which they might have done themselves; So that what was done by them was publico nomine, doth clearly appear by the Gift itself, and deeds done thereupon: For it is not an ordinary Bailery as the Laird of Restalrig, or any other baron was in use to appoint( as Edinburgh pretends) because it is not first to themselves to exaust the Bailery and Jurisdiction personally, but an elected presentative of the whole Incorporation. 2do. The time of the endurance being semper & eousque, ever and while they were Erected, at least the Money payed, shows the Bailery was not personal to dy with the persons, but it was to continue ever until one of the conditions was performed. 3d. The said Office of Bailery in Anno( 1568) Three years after Edinburgh had bought their pretended Superiority was exerced by other Inhabitants of Leith than their persons mentioned in the said Gift, which shows the Gift was not personal, as by a Charter and seizing Anno aforesaid and produced is made clear. To the second Answer being, that the Bailery was personal quoad the Queen, and died with her, because it wanted infeftment. It is replied; Yet the assertion is assured a Bailery, being but a bare Office may very well be transmitted without any Infeftment; And is sufficiently sufficient by Gift under the Great Seal, and is nottour in all the Offices of Scotland, especially this being a Bailery given to an Incorporation which cannot dy. To the 3d and 4th Answers annent the Bailery Leith Repeats their Reply to Edinburgh. 3d and 5th Answers annent the Contract.    

Leith's Claim, as to the Matter of Fact and point of Grievance.  
3. LEith complains first, That the most and greatest Edinburgh could pretend in and over Leith, is only as barons of Restalrig, by virtue of the aforesaid renounciation made to the Queens Disposition of the Superiority to them Anno 1565, nevertheless contrary to his Highnesses Ordinance, prescribing the particular way for baron Courts; They in high contempt thereof impose their said baron Bailerys with full of ●dignosing of all Causes what consequently soever they be, of fining, and Imprisoning their Inhabitants by themselves, without any concourse of the Neighbours direct, contrary to his Highness his said Act. The bailiffs being strangers not Inhabiting within the barony.  

Edinburghs Answers.  
3. THis Answered for the Town of Edinburgh to the 1st Grievance, that they have been in the use of Leith magistrates, and Bailiffs these Hundred Years in that same manner as now they do; And that though the Bailiffs be Strangers to Leith and Indwellers in Edinburgh; Yet Leith hath no reason to complain, because their magistrates are Burgesses of Edinburgh, though in all probability are more unsuspected either of Partiality or Faction, than if a Neighbour of Leith should be made Judge over his Neighbours and Brethren.   

Leiths replies omitted in colonel Bryans Report.  
3. TO the first Answer anent particular Grievances; The Town of Leith oppones their Complaint with the Tenor of his Highness Act of Union and Ordinance for baron Courts, whereby all Heritable Bailerys without distinction are expressly discharged, not withstanding any grant or custom in the contrair, and the particular manner of Electing Bailiffs, holding of Courts extant of their Power and way of Administrating of Justice to the People within their placing, or particularly set down, contrair to all which Edinburgh as baron of Restalrig imposes upon Leith yearly, to Magistrates without regard of the said Act or Ordination; And if their Ancient custom of so doing should justify them; The like might be alleged for all the barons in Scotland, and thereby they should render his Highness Act altogether voided and of none effect.    

LEITH's Claim.  
WHatever Cess is Imposed upon Edinburgh, The magistrates without any Consent of the said Town 〈…〉 such proportion thereof on them as they think fit, albeit they be neither part nor pertinent of Edinburgh, nor reaps any Benefit from them, but are enslaved by them.  

EDINBURGH's Answer.  
TO the second it is Answered; That Edinburgh's Stenting of Leith, was a Favour to them, as being a Pendicle of Edinburgh, by proportioning a part of Edinburgh's Cess upon them there, as if they had been looked on as a part of the Shire, and not a part of the Burgh, The Burden would have lain more heavy upon them.   

LEITH's Reply.  
TO the second Answer, Leith replies, That the Favour shown them by Edinburgh in imposing, their Cess may be easily guest at, considering that the Cess payed by Leith, is the sum of 〈…〉 Whereas the Cess imposed upon the great Town of Newcastle upon tine, is only some few pence more 〈…〉 Which unjust proportion, it not imaginable, could have been charged upon them by any Shire in Scotland, where they lived Men but of ordinary Discretion, neither is their proportion of Cess more unjust then the Reason thereof is false, viz: That Leith is a Pendicle of Edinburgh, whereas it cannot be made appear Leith is not, nor ever was either Part, Pertinent, or Pendicle of Edinburgh. And it was lately found by the Council, for Administration of Justice, That Edinburgh having imposed Excise upon the West-port, and other suburbs about Edinburgh, as Pendicles of the Burgh. Yet they having found the same no Pendicle, did adjudge the Excise to belong to the Council of Excise, and no ways to the Town of Edinburgh.    

Leith's Claim.  
5. AS barons and pretended Superiority of late years, they have altered the Inhabitents of Leith, their Redendoes and Duties in their Old Charter, refusing to enter or Infest them without such Duties were insert as they please.  

Edinburghs Answer.  
5. TO the third it is Answered, That alteration of the Vassals holdings Inhabitants of Leith, was duly the Town of Edinburghs, either upon just grounds in Law, or by the parties own consent.   

Leiths replies  
5. TO the third, Leith replies, That there can no just ground in Law be shown, why Edinburgh changed their Holdings; And they being their usurped Superiors, any little alteration the Law provides to be extortioned, it being a maxim in Law, qui potentior rogat imperat; and it can be made appear, that any of these Articles were extorted.    

Leith's Claim  
6. THey hinder any of the Inhabitants to grinned Corn, sell Wine, Brew Ale, make Malt, sell Candles, Stearch, Prins, or the meanest Commodities of all, for entertainment of Families, and necessary for any Incorporation whatsoever.  

〈…〉  
6. TO the fourth it is Answered, That the Laird of Restalrig, Superior of Leith, did in Anno 1398, for himself and his Vassals, and tenants if Leith, renounce any such privileges of Girneling of Corns, or selling of Wine, &c.   

Leiths replies.  
6. TO the 4th Leith replies; First, Restalrigs( Anno 1398) being against Girneling of Corn, selling of divers, and Vendition of petty Commodities, which are common to all Subjects, and necessary for all Incorporations, 〈…〉 Lawfully be renounced by the Inhabitants of Leith themselves, or both by two Superiors their Names, without express Warrant. 2do. No such servitude could be imposed by any Superior after he is denounced of the property of his Lands, in favours of his Vassals; because if it were permitted to impose such servitudes upon their Vassals at any time; They then might make the property altogether, useless by imposing such Burdens thereupon, as would make the Vassals glad to be quiter of his Land, providing they were free of the Burden. 3tio. The servitude contain the Renounciatiation, being in effect personal slevery to the Superiors, are exhibited by the Act of Union. Lastly, Though they were not Petsonal, but real predical servitudes: Yet Edinburgh as present Superior over Leith, could not acclaim any such servitudes from Leith, it being a Maxim in Law. Confusioné Domini tolitur servitutes qui Res sua nemini servit.    

LEITH's claim.  
5. THey will not permit any of their own Burgesses to Inhaabit within the Town of Leith, but necessitates them when they please, with their Families, to make their Residence at Edinburgh.  

EDINBURGH's Answer.  
5. TO the fifth it is Answered, That the Town of Edinburgh compels not each Burgess to leave Leith, but only such as use merchandise, who by the Law are bound to reside within Burgh's Royal.   

LEITH's Reply.  
5. TO the fifth, Leith replies, That albeit it were allowed to exhibit the using of merchandise in gross, except within free Burghs, yet to exhibit all kind of Mercats, and selling so much as Pine or Candle by retail, but forcing all such to repair and dwell in Edinburgh, if the Magistrates thereof please; There is no Law nor Statute commanding this. And any preceding custom in the Contrary, hath been a tyranny called Usurpation.    

LEITH's claim.  
6. THey exact from the Merchants of all Goods imported, of what Value soever, at the Port of Leith, one mark upon the Tun and Pack, of all foreign Commodities that comes into Leith by Sea or Land. Which is not at any other Port of Scotland, to the ruin of the Port & Town. As also a Tax upone Wine, Tobacco, Strong Waters, which is at no other port.  

EDINBURGH's Answer.  
6. TO the sixth it is Answered, That for good Causes they have a mark granted per Tun, of all Goods imported at Leith, by a public Infeftment by King Charles the first, who being the supreme Magistrate, had power to impose the same. And it is an Argument of a distempered Spirit to assert the contrary, either in relation to the mark, or to the Tax imposed upon Wine, Tobacco, or Strong Waters.   

LEITH's Reply.  
6. TO the sixth, Leith Replys, That albeit for public Necessity of the Common Wealth, the supreme Magistrate may impose justly Taxes upon the whole Nation. Yet to impose a Tax upon one Town, for Relief of another Town's burdens, is of another Nature. And if at any time, the supreme Magistrate upon the private Information of the one party, grant any such Taxation, the other private not being heard, it is always permitted, and cannot in Justice be denied, That the party grieved may notwithstanding of any such Grant, Represent his whole Reasons and Obligations, why if he had been heard, no such Gift could have been granted. And it were an Argument of Stupidity( which is the worst of Distempers, to assert the contrary.)    

LEIEH's claim.  
7. THey necessitate all Merchants to make the first Offer of all merchandise imported to the Town of Edinburgh, and in the mean time, while they delay to set the price upon the Commodities, the Merchant is either forced to sell as they please, otherways to loose his Mercat, as falls forth daily.  

EDINBURGH's Answers.  
7. TO the seventh it is Answered, That the Necessity laid upon Merchants to make the first Offer of their Goods to a free Burgh, is to issue Extortion, and Forestalling, much conducible for the Good of the Common Wealth.   

LEITH's Reply.  
7. TO the seventh Leith replies, That the Necessity of Offer of merchandise to the Magistrates, for excusing of pretended Forestalling and Extortion, is a remedy worse then the Dezease, and the penalties mentioned in many Acts of parliament, against Forestallers, is a far easier and sure Care.    

LEITH's claim.  
8. WIthout public Warrant at their own Hands, they Necessitate all Merchants to weight their merchandises at Edinburgh's public Beam, set up in Leith, and to pay so much for the Weight. As also, to pay so much for Ballast Money, by their own private Authority, without public Warrant.  

EDINBURGH'S Answer.  
8. TO tho eight it is Answered, That Edinburgh hath Right, and hath been in possession of a qublict Beam, or Weigh-House these many Ages, and is for a public End, To prevent false and deceitful Weights, and that the Ballast Money was done by agreement, ●●● Magistrates of Edinburgh and Merchants of Leith.   

Leiths replies.  
8. TO the eight Leith replies, That the Erection of a Weigh-House at Leith, & the necessitating of Merthants to come there with their Goods, is done by Edinburghs private Authority. King James his Gift being of a Weigh-House in Edinburgh, which can relate nothing to the present Weigh-House in Leith. And there being greater penalties imposed in many Acts of Parliament, upon Commodities of Falced, there needs in such 〈…〉 as Edinburghs public Beam to be Erected, for prevention thereof, nor can any allege Agreement past betwixt the Magistrates of Edinburgh, and certain Merchants, concerning the Ballest Money, that any person but these which made the Agreement.    

LEITH'S Claim.  
9. THey meddle with Leith's whole Common Good 〈…〉 and boxes, and disposes thereon, without Consent or Counsel of any of the Inhabitants of Leith.  

EDINBURGH's Answer.  
9. THe ninth Grievance is positively denied by the Burgh of Edinburgh.   

Leith's Reply.  
9. THe ninth Grievance Leith is ready to make Good.    

LEITH's Claim.  
12. LAst, they deprive them of all benefit of Mercats; So that if they need but a Loaf of Bread, they must repair to Edinburgh before they can have it publicly to Seal.  
All which is humbly referred to the Consideration of the Honourable Council.  

EDINBURGH's Answer.  
12. TO the last it is Answered, That they may justly prohibit any Mercat within the Town of Leith, by virtue of their Superiority, and Grant from King James; It being a paiviledge of all Superiors to have power of prohibition to any of their Vassals; And the Village of Leith is no Incorporation, but the Inhabitants thereof are only Fiewers of the barony of Restalrig.   

Leiths Reply.  
12. TO the Last, Leith replies, That not only by the Contract and of Gift Bailery; But lso by many Acts of Parliament they are called and acknowledged. The Town and Incorporation of Leith, with power to hold Mercats( as appeats particularly by the 92 Act of King James the 4th, the sixth Parliament) and using of such privilege, being requisite and necessary for all such Incorporations; And used and accustomend by the meanest Village in Scotland, yet denying to Leith; It is clearly evident from this, what favourable 〈…〉 this hundred years, who after having wrested from their own due privileges usurped over them, and unsufferable and unparaleled sovereignty, and the Gift granted by King James, not only Comprehends that, but many other Absurdities particularly set down in Leiths Dispute, too large to reside in this Abrivat, which are unsupportable in any Common Wealth, which are humbly recommended to your Lordships serious consideration.    
This is an Abreviat of the Debate betwixt Edinburgh and Leith, in Anno 1655, before the Council of SCOTLAND, in the foresaid Year.