<!DOCTYPE ETS PUBLIC "-//UMDLPS//DTD EEBOPROOF 2.0//EN">
<ETS>
<TEMPHEAD>
<REVDESCR>
<CHANGE>
<DATE>2011-11-09</DATE>
<RESPSTMT>
<NAME>Olivia Bottum</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Did text and markup review.</ITEM>
</CHANGE>
</REVDESCR>
</TEMPHEAD>
<EEBO>
<IDG S="marc" R="UM" ID="B02584">
<STC T="W">c921</STC>
<STC T="C">r170951</STC>
<BIBNO T="oclc">51617744</BIBNO>
<VID>175164</VID>
</IDG>
<TEXT LANG="eng">
<FRONT>
<DIV1 TYPE="title page">
<PB REF="1" MS="y">
<P>THE CASE OF JOHN SWINTON OF SWINTON, In Relation to HIS FATHER'S PRETENDED FORFEITURE: Upon pretext whereof, the E&s;tate of <HI>Swinton</HI> hath been unju&s;tly Po&s;&s;e&s;s'd by the late Duke, and this Earl of <HI>Lawder|dale,</HI> ever &s;ince the year 1660.</P>
<P>WITH The <HI>Rea&s;ons</HI> of <HI>Reduction</HI> of the &s;aid <HI>Forfeiture,</HI> now Depending again&s;t the &s;aid Earl, at the In&s;tance of the &s;aid <HI>John Swinton,</HI> BEFORE <HI>THE PARLIAMENT.</HI></P>
<P>Printed in the Year, MDCXC.</P>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="case">
<PB REF="2">
<PB N="3" REF="2">
<P>THE Duke of <HI>Lauderdale</HI> having, after the late King <HI>Charles</HI>'s Re&s;tauration, fir&s;t entered to the <HI>Po&s;&s;e&s;&s;ion,</HI> and then ob|tained a <HI>Gift</HI> of the decea&s;s'd <HI>Swinton</HI>'s E&s;tate, upon pre|tence of his being forfeited by a <HI>Committee</HI> of E&s;tates, (for his being with the <HI>Engli&s;h</HI>) in the Year 1651. By which Right, and a &s;upervenient Decreet of Forfeiture, pretended to be given again&s;t <HI>Swinton</HI> (for the &s;ame Crime) by the Parliament 1661. he had that <HI>intere&s;t</HI> and <HI>power</HI> in this <HI>Nation,</HI> to po&s;&s;e&s;s the &s;aid E&s;tate as long as he lived, and at his Death, to leave it in Succe&s;&s;ion to his Brother this Earl of <HI>Lauderdale,</HI> who hath po&s;&s;e&s;&s;ed it ever &s;ince. Albeit there was nothing could ever be made appear, to evince that there was any &s;uch Forfeiture again&s;t <HI>Swinton</HI> in the Year 1651. but the pretended <HI>Extract</HI> of a Decreet <HI>in ab&s;ence,</HI> elicit from an <HI>&V;nder Clerk</HI> ten years after, of which there was never the lea&s;t War|rant upon Record. And that as to any Forfeiture in the year 1661. there was only a <HI>Proce&s;s</HI> then intented, that not being in&s;i&s;ted in, never came the length of a <HI>Sentence.</HI> But to &s;upply this Defect, <HI>Swinton</HI> having objected it to the Duke of <HI>Lawderdale,</HI> the later end of the year 1673. there were Methods taken in the Month of <HI>January</HI> 1674. to procure <HI>Mi|nutes</HI> to be made up by a <HI>Clerk,</HI> as if a Sentence of Forfeiture had follow|ed upon that <HI>Proce&s;s</HI> 1661, and thereupon a Decreet was got extracted 13 or 14. years after. Tho this was thought &s;o tickli&s;h a thing at that time, by the then Clerk Regi&s;ter, as not daring to adventure upon it without <HI>extraordinary Precaution;</HI> he fir&s;t dealt with the late Earl of <HI>Crawfurd,</HI> (who pre&s;ided in that <HI>Parliament,</HI> when the Chancellor was ab&s;ent) to &s;ign the Minutes, as in <HI>prae&s;entia Dominorum Parliamenti,</HI> albeit 13. years after that <HI>Parliament</HI> (at lea&s;t that Se&s;&s;ion of it) was no more in <HI>Beeing:</HI> and then cau&s;ed <HI>application</HI> to be made in behalf of the Duke of <HI>Lauderdale,</HI> to the Lords of <HI>Se&s;&s;ion,</HI> to give their War|rant for extracting, what he was con&s;cious to him&s;elf was &s;o <HI>unwar|rantably</HI> done.</P>
<P>That part which the Earl of <HI>Crawfurd,</HI> (a Per&s;on of &s;uch known
<PB N="4" REF="3">Honour and Integrity) was prevail'd with to have in &s;o unju&s;tifi|able a Practice, his Lord&s;hip had the Ju&s;tice to leave atte&s;ted by him before he died, in a <HI>Mi&s;&s;ive Letter,</HI> all written with his own hand, and depo&s;ited by him in the hands of the Lady <HI>Helene Sinclair</HI> his Daughter, to be delivered by her after his Death (as it punctual|ly was) to the decea&s;s'd <HI>Swinton,</HI> to whom it was directed. Which Letter is conceived in the&s;e terms.</P>
<LETTER LANG="eng">
<OPENER><DATELINE><HI>TYNINGHAME</HI> <DATE>the 8 <HI>June,</HI> 74.</DATE></DATELINE>
<SALUTE>SIR,</SALUTE></OPENER>
<P>YE were plea&s;ed lately, both your &s;elf, and by &s;ome others, to &s;ay, that I had done you an Injury in &s;igning the <HI>Minutes</HI> of your <HI>Proce&s;s,</HI> e&s;pecially being out of all Imployment when I did it. I &s;hould think my &s;elf very unfortunate, if I did any thing <HI>willingly,</HI> to prejudge you or any Man alive. Therefore I &s;hall tell the Truth (in point of <HI>Fact</HI>) now, not being able to &s;peak with you when ye de&s;ired me. My Lord <HI>Regi&s;ter</HI> &s;ent down a Servant to my Lodging in <HI>James Deans's</HI> Hou&s;e, &s;ome day in <HI>January</HI> or <HI>February 74.</HI> and &s;aid, If I were within, he would come and &s;peak with me. I bid his Man tell him, I was pre&s;ently going out, and &s;hould call to him up the way. When I was near the length of Cro&s;s, I met him in his Coach. I made mine halt, and went out, (as he did) to the <HI>Plain Stones.</HI> He told me I behoved to go to &s;ome <HI>Hou&s;e.</HI> So we went to <HI>Patrick Steel's</HI> Hou&s;e. where he took out a long <HI>Scroul,</HI> and &s;aid, That was <HI>your Proce&s;s.</HI> I told him I knew nothing of it: it was &s;o long ago, that I did remem|ber nothing. He an&s;wered, There is the Chancellor's Sub|&s;cription, to what pa&s;&s;ed before he went to <HI>England;</HI><NOTE N="*" PLACE="marg">Meanning the Minute before the Articles, mentioned here|after, <HI>pag.</HI> 13.</NOTE> and I being <HI>Pre&s;ident</HI> after, behoved to &s;ign it: for it could not be pre&s;ented then, I going pre&s;ently to <HI>London.</HI> I fir&s;t &s;aid, Being out of all Office, I thought it <HI>unfit</HI> for me to do. Next I &s;aid, &s;ome of the <HI>Minutes</HI> (as the <HI>Inditement</HI> was) were
<PB N="5" REF="3">of <HI>old</HI> Writ, and a great deal thereof <HI>new.</HI> He &s;aid, Both were Mr. <HI>John Hay</HI> of <HI>Hay&s;toun's</HI> hand, and he was an&s;wer|able for the <HI>Minutes.</HI> &V;pon this Repre&s;entation I did it: and I have told you the naked Truth, upon my Honour and Con|&s;cience: and I did it without end of advantage, or prejudice to any. But being pre&s;sed to it as my Duty, I hope ye will believe this ingenuous Dealing, and keep no more prejudice or mi&s;under&s;tanding again&s;t,</P>
<CLOSER><SIGNED>Your affectionate Servant, Crawfurd &amp; Linde&s;ay.</SIGNED> Addre&s;&s;ed on the Back, For John Swinton, The&s;e.</CLOSER>
</LETTER>
<P>It might be thought &s;trange, why the Duke of <HI>Lawderdale,</HI> being a Man of &s;uch Power during the late King <HI>Charles's</HI> Reign, and know|ing his Title to be &s;o defective as it was, &s;hould not rather have en|deavoured to have had the decea&s;s'd <HI>Swinton</HI> truely forfeited, either by cau&s;ing in&s;i&s;t in that Proce&s;s, intented before the <HI>Parliament</HI> 1661. or cau&s;ing intent a <HI>new</HI> one; rather than to have had recour&s;e to &s;uch <HI>indirect</HI> and <HI>dangerous</HI> Methods to &s;upport a <HI>&s;uppo&s;ed</HI> Forfeiture, whereof there either was <HI>no</HI> Warrant upon Record, or whereof the Warrants upon Record were <HI>fal&s;e.</HI> But the truth is, <HI>Swinton's</HI> be|ing taken and detained Pri&s;oner by the <HI>ENGLISH,</HI> in the year 1651. being all the ground there was for the Crime alledged again&s;t him at that time, for which he was pretended to be forfeited; and continu|ing in that &s;tate, till after the Fight at <HI>Worcester,</HI> and &s;ubjection of the <HI>Scoti&s;h</HI> Nation to the <HI>Engli&s;h:</HI> the <HI>Duke</HI> dur&s;t not, for all his Power, adventure to put a Crime &s;o calumnious, to the Trial of a <HI>Parliament,</HI> as knowing <HI>Swinton</HI> would have been able to have clear|ed him&s;elf, and con&s;equently able to have recovered an E&s;tate out of his hands, that he had got him&s;elf thus po&s;&s;e&s;&s;ed of, and could not but be very loath to part with.</P>
<P>The Letter writ by the Earl of <HI>Crawfurd,</HI> having been &s;hown to the late K. <HI>Charles,</HI> and the intire matter of Fact repre&s;ented to him, as it truely was; he in the year 1682. granted <HI>Commi&s;&s;ion</HI> to the then
<PB N="6" REF="4">Lord <HI>Chancellor</HI> and &s;everal other Per&s;ons, to make Inquiry into the whole <HI>Procedure</HI> concerning the &s;aid Forfeiture, and to in&s;pect the Re|cords of <HI>Parliament</HI> in relation to the &s;ame, and to make Report there|of to His Maje&s;ty. Pur&s;uant whereunto, the Records of <HI>Parliament</HI> were in&s;pected. And as there was <HI>nothing at all</HI> found as to the pre|tended Decreet of Forfeiture, in <HI>anno</HI> 1651. &s;o as to that of <HI>anno</HI> 1661. <HI>all</HI> that was found, did (from <HI>ocular in&s;pection,</HI> and many o|ther Circum&s;tances concurring with the Earl of <HI>Crawfurd's</HI> Let|ter, and even from the Records of Parliament them&s;elves) make it manife&s;tly evident to be <HI>fal&s;e.</HI> However, the Earl of <HI>Lauderdale</HI> had that influence upon tho&s;e, to whom the Trial of this Affair was re|commended at that time, as rendred the further Pro&s;ecution of the Commi&s;&s;ion given them, ineffectual. Nor was <HI>John Swinton,</HI> who now repre&s;ents his Father, nor his elde&s;t Brother before him, in a ca|pacity to quarrel otherwi&s;e their Adver&s;arie's Title, &s;o long as there &s;tood pretended Decreets of Parliament in their way, of a Forfeiture (how fal&s;e and groundle&s;s &s;oever) again&s;t their Fa|ther.</P>
<P>Thus the E&s;tate of <HI>Swinton</HI> hath been unju&s;tly po&s;&s;e&s;&s;ed by the Duke of <HI>Lawderdale,</HI> and the Earl his Brother, for the &s;pace of near 30 years: (for tho the Duke got his Gift of the pretended Forfeiture of that E&s;tate, in the year 1661. yet he entred to the Po&s;&s;e&s;&s;ion of it in the year 1660. eight Months before the Gift was granted.) During all which time, the true Proprietars have been debarred from acce&s;s, to an Inheritance tran&s;mitted to them from their Ance&s;tors, by an unin|terrupted Succe&s;&s;ion of above 600 years. And for the Recovery where|of, upon the pre&s;ent <HI>Revolution,</HI> this <HI>Swinton</HI> the Repre&s;entative of the Family, being to make Application to the PARLIAMENT now &s;itting, as the <HI>Supreme Judicatorie</HI> of the Nation, and in order thereunto, having after the fir&s;t <HI>Adjournment,</HI> intented a <HI>Reduction</HI> before the &s;ame, of the two pretended Decreets above mentioned, of his Fathers <HI>Forfeiture;</HI> and the Earl of <HI>Lawderdale,</HI> having been cited ther|upon by a Warrant of the <HI>Council,</HI> (the Signet not being open)
<PB N="7" REF="4">and the Rents of the Lands by the Council's Order &s;eque&s;tered in the Tennents hands during the <HI>Dependence,</HI> the REASONS of the &s;aid <HI>Re|duction</HI> are here &s;ubjoyned.</P>
<DIV2 TYPE="reasons">
<HEAD>REASONS OF RED&V;CTION at <HI>Swinton</HI>'s In&s;tance again&s;t the Earl of <HI>Lawderdale.</HI></HEAD>
<P>THE PRETENDED DECREET OF THE COMMITTEE OF ESTATES, 1651. whereupon the Duke of <HI>Lauderdale</HI>'s Gift is founded, cannot be re&s;pected as a Decreet and Doome of Forfeiture, and ought to be <HI>reduced.</HI></P>
<P N="1">1. Becau&s;e it is a Decreet in ab&s;ence, not &s;ub&s;cribed by the Clerk Regi&s;ter for the time, but by Mr. <HI>Thomes Henri&s;on,</HI> pretended to be Clerk to that <HI>Committee,</HI> from whom a pretended Extract thereof was elicit in the year 1661. ten years after, and whereof there is no Warrant extant in the Records of Parliament.</P>
<P N="2">2. Though it laboured under no &s;uch Defect; yet it being again&s;t &s;everal other Per&s;ons, a&s;well as the decea&s;s'd <HI>Swinton,</HI> and particularly again&s;t one <HI>John Hume,</HI> accu&s;ed and convict for betraying the <HI>Ca&s;tle</HI> of <HI>Edinburgh</HI> to the <HI>Engli&s;h;</HI> It bears an expre&s;s Declaration, <HI>That the King and Committee of E&s;tates, for Rea&s;ons and Con&s;iderations moving them, did restrict the Sentence and Puni&s;hment, to the Execution of the &s;aid</HI> John Hume <HI>to the Death.</HI> Which clearly takes off the effect of the Sentence, as to <HI>Swinton</HI> and all the re&s;t, till it &s;hould be <HI>re|con&s;idered</HI> by the King and Parliament.</P>
<P N="3">3. By the late CLAIM OF RIGHT, it is declared by the MEETING OF ESTATES, <HI>That the cau&s;ing pur&s;ue and forfeit Per&s;ons upon frivolous and weak Pretences, and upon lame and defective Probation, is contrary to Law.</HI> And it is evident, that this pretended Decreet proceeds upon mo&s;t frivolous, weak, and ir|relevant
<PB N="8" REF="5">Pretences. The Crime therein libelled again&s;t <HI>Swinton</HI> being, That <HI>be hawing a Charge in the King's Army, de&s;erted the &s;ame and went in to the Enemy, and had his frequent Re&s;idence with, and re|&s;orted to the Enemy in the Town of</HI> Edinburgh, Cannongate <HI>and</HI> Leith, <HI>carrying has Sword about him.</HI> Which as libelled, was both irrelevant and calumnious. For he did not de&s;ert the King's Army, but being Lieu|tenam-Collonel of a Regiment of Hor&s;e under the King, and at that time his nece&s;&s;ary Occa&s;ions calling him over to his Hou&s;e in the <HI>Mer&s;e,</HI> he gave up his Commi&s;&s;ion (as he, or any man in &s;uch Circum&s;tances might lawfully do) and one <HI>Crawfurd</HI> of <HI>Crawfurdland</HI> was immedi|atly thereupon put in his Place. And as he cro&s;&s;ed the Water, (&s;everal Weeks, if not Months after he had thus quit his Charge, and <HI>Crawfurdland</HI> had got it) being intercepted by a Party of the <HI>Engli&s;h,</HI> and carryed to their General's Quarters; he was for &s;ome time detained there a <HI>Pri&s;oner,</HI> and thereafter, upon his <HI>Parole,</HI> had liberty to go home. Which neither in Sen&s;e, nor Rea&s;on, nor in the Con&s;truction of Law, could be under|&s;tood a <HI>de&s;erting</HI> of the King's Army, and <HI>going in</HI> to the Enemy. And that he <HI>re&s;orted</HI> to, and <HI>re&s;ided</HI> with the Enemy in <HI>Edinburgh, Cannongate</HI> and <HI>Leith;</HI> was a mo&s;t frivolous and ab&s;urd Pretence, to infer the Crime of <HI>Trea&s;on.</HI> For the&s;e Places, and the greate&s;t part of the South&s;ide of <HI>Forth,</HI> being then under the Enemie's Power; it could infer no Crime, much le&s;s the Crime of Trea&s;on, again&s;t any who had occa&s;ion for their law|ful Affairs, to come where the Enemy was; that they re&s;orted to the E|nemy, or conver&s;ed with them. For if that had been relevant, the mo&s;t part of the Inhabitants of this &s;ide of <HI>Forth,</HI> might have at that time been forfeited upon the &s;ame ground. And certainly &s;imple <HI>Conver&s;e,</HI> and being <HI>pre&s;ent with</HI> an Enemy, is not relevant to infer a Crime, unle&s;s it could be made appear, that the Party &s;o conver&s;ing, and pre&s;ent, joyned with the Enemy in <HI>Coun&s;el,</HI> or <HI>Acts of Ho&s;tility</HI> again&s;t the State: which is neither libelled nor could be alledged in this Ca&s;e. And as to <HI>Swinton's</HI> having a Sword about him, when he thus re|&s;orted to, and conver&s;ed with the Enemy; he being a <HI>Gentleman</HI> and a Pri&s;oner upon <HI>Parole,</HI> had liberty to wear his Sword: and his doing &s;o, could infer no Crime again&s;t him, unle&s;s it had bee libe|led that he had, whil&s;t he wore it, u&s;ed it as an Enemy.</P>
<P N="4"><PB N="9" REF="5"> 4 As the &s;aid pretended Decreet proceeds upon frivolous and irrelevant Pretences, and &s;o upon that Head falls under the fore|&s;aid Article of the CLAIM OF RIGHT; It falls under the &s;ame Article by the <HI>Defect</HI> of <HI>Probation.</HI> For the &s;aid Decreet being a Decrect in <HI>ab&s;ence,</HI> neither conde&s;cends, as to <HI>Swinton,</HI> upon <HI>Wit|ne&s;&s;es</HI> that were examined again&s;t him, nor upon what they <HI>de|poned,</HI> as all Decreets of this nature (where Parties are not found guilty by their own <HI>Confe&s;&s;ion</HI>) ought to do: but only bearing, That <HI>the King and Committee of Estates had found the fore&s;aid Pre|tences,</HI> libelled again&s;t <HI>Swinton, relevant and</HI> SUFFICIENT|LY <HI>proven,</HI> without expre&s;&s;ing <HI>what way</HI> the &s;ame were pro|ven, or bearing even &s;o much, as that <HI>Witne&s;&s;es</HI> were adduced at all in the Probation. Neither is there the lea&s;t ve&s;tige in the <HI>Re|cords</HI> of Parliament, of any Probation <HI>what&s;oever,</HI> led any manner of way again&s;t <HI>Swinton</HI> in this Matter. So that the whole Proba|tion in this pretended Decreet, as to <HI>Swinton,</HI> re&s;olving in the &s;imple A&s;&s;ertion of a <HI>Clerk,</HI> without any authentick Document of the Proba|tion upon <HI>Record,</HI> is in Law, no Probation at all.</P>
<P N="5">5. The Duke of <HI>Lauderdale,</HI> after he had obtained his Gift of <HI>Swin|ton</HI>'s Forfeiture, founded upon the pretended Decreet of the Com|mittee of E&s;tates, 1651. being convinced how groundle&s;s and illegal the &s;aid Decreer was; cau&s;ed rai&s;e a new Indite|ment again&s;t <HI>Swinton,</HI> (then a Pri&s;oner in the Tolbooth of <HI>Edin|urgh</HI>) before the Parliament 1661. and therein, among&s;t other Crimes which he cau&s;ed charge <HI>Swinton</HI> with, he cau&s;eth libel the very <HI>&s;ame Crime</HI> in the very <HI>&s;ame words,</HI> that was libelled again&s;t him in the Decreet 1651. giving him withall the De&s;ignation of <HI>John Swinton</HI> OF <HI>SWINTON.</HI> Which was an implicit pa&s;&s;ing from the &s;aid Decreet, and a mo&s;t evident Demon&s;tration that it was then looked upon by him as <HI>no</HI> Decreet. It being obvious both in Law, and common Sen&s;e, that a Man <HI>once</HI> forfeited, cannot be <HI>again</HI> forfeited, &s;eing by the <HI>fir&s;t</HI> Forfeiture, in the Con&s;truction of <HI>Law,</HI> he is no more in <HI>beeing,</HI> and can have <HI>no</HI> E&s;tate to forfeit. Upon all
<PB N="10" REF="6">which Grounds it is manife&s;t, that the &s;aid pretended Decreet 1651. is null and void to all intents and purpo&s;es.</P>
<P>AND the &s;aid Decreet 1651. being <HI>null,</HI> the Duke of <HI>Lauderdale's</HI> Gift of Forfeiture, as being only founded upon that Decreet, is null, and mu&s;t fall in <HI>con&s;equence.</HI> Nor can it &s;ub&s;i&s;t by the pretend|ed &s;ub&s;equent Decreet of Forfeiture (if any &s;uch Decreet had true|ly been) in the year 1661. becau&s;e the Gift is anterior to it: the &s;aid Gift being dated the 25 of <HI>May</HI> 1661. and the Decreet 1661, bear|ing Date the 12 of <HI>July</HI> thereafter. And by the CLAIM OF RIGHT it is declared, <HI>that the di&s;po&s;ing of Forfeitures before Sentence, is contrary to Law.</HI></P>
<P>AND AS TO THE PRETENDED DECREET OF THE PARLIAMENT 1661. The &s;ame is <HI>null,</HI> and ought to be <HI>reduced.</HI></P>
<P N="1">1. Becau&s;e the &s;ame proceeds either upon <HI>weak</HI> and <HI>frivolous Pre|tences,</HI> or upon <HI>Pretences fal&s;e and calumnious,</HI> and is de&s;titute of all <HI>Probation</HI> what&s;oever. For as to the <HI>fir&s;t</HI> Article of the Indite|ment whereupon it proceeds, bearing, That <HI>Swinton &s;ate and voted in the Parliament</HI> 1649. <HI>in which the Act concerning the Engage|ment forfeited, and turned out of Office;</HI> It was not relevant. Be|cau&s;e no Man can be, not ever was called in que&s;tion for &s;itting and voting in a Parliament, or-acting therein in a <HI>Parlia|mentary</HI> Capacity. Seing what is done by a Parliament, is not to be under&s;tood the Deed of any <HI>&s;ingle</HI> Per&s;on, but of the whole <HI>re|pre&s;entative Body</HI> of the Nation. And the King did &s;o far acknow|ledge that Parliament 1649. that he admitted Commi&s;&s;ioners from it, as from the Repre&s;entatives of the Kingdom. And by his <HI>Treaty</HI> with them, he was obliged to ratifie the Proceed|ings of the Parliament, after his coming home. Which was accor|dingly performed by him, in a Parliament held after his Return, in the year 1650. Neither did it appear that <HI>Swinton</HI> voted for the re|&s;cinding the Act in relation to the <HI>Engagement</HI> 1648. nor for the <HI>for|feiting,</HI> or <HI>putting out of Office</HI> the Per&s;ons mentioned in the In|ditement.</P>
<P>And as to the <HI>&s;econd</HI> Article, bearing <HI>Swinton</HI>'s <HI>holding Corre&s;pondence with the &V;&s;urper, by writing to, and receiving Letters from him, or by &s;ending to, and receiving Me&s;&s;ages from him by word of Mouth;</HI> It was ab|&s;olutely
<PB N="11" REF="6">denied, and neither was, nor could be proven, it being in it &s;elf altogether fal&s;e and calumnious. And whereas in the &s;aid &s;econd Ar|ticle, it is alledged, as in the fir&s;t Decreet, that <HI>Swinton de&s;erted his Im|ployment in the King's Army, and went in to the Enemy;</HI> the former An&s;wer to the &s;aid fir&s;t Decreet is oppon'd.</P>
<P>And as to the <HI>thrid</HI> Article, That <HI>Swinton did go along with the U&s;ur|per's Army to</HI> Worce&s;ter, <HI>and fought there again&s;t the King, at lea&s;t was with the &V;&s;urper there in Arms.</HI> (and which is the onely Crime in&s;i&s;ted upon by the King's Advocate again&s;t him;) It was likewi&s;e denied, as it was <HI>conceived.</HI> For if it could have been made appear, that <HI>Swinton</HI> was at <HI>Worce&s;ter,</HI> he could have in&s;tructed, that he was there as a <HI>Pri&s;oner</HI> and not as a <HI>Souldier.</HI> Neither could it e|ver have been proved, that he acted any thing there in a <HI>hostile</HI> manner. But on the contrary, was ready on all occa&s;ions to &s;erve his Countrey, to the utmo&s;t of his Power in that &s;ad Conjuncture: In which two of his Brothers in the King's Service, Mr. <HI>Robert Swinton,</HI> who commanded a Troop of Hor&s;e, and Mr. <HI>Alexander</HI> now of <HI>Mer|&s;ington,</HI> and one of the Senators of the Colledge of Ju&s;tice, had the for|tune, the fir&s;t of them to be kill'd, and the other taken Pri&s;oner. And the good Offices he did to many of his Countrey Men at that time, it is hoped are not yet forgotten. And if he had been in Arms, as he was not; yet this being a Crime alledged to have been committed in <HI>England,</HI> he was &s;ecured by the <HI>Engli&s;h</HI> Act of <HI>Indemnity.</HI></P>
<P>And as to the <HI>fourth</HI> Article, that <HI>Swinton did &s;it and vote in a Par|liament in</HI> England, <HI>declaring the King or any other of the Royal Fa|mily, incapable to &s;ucceed in the Royal Government: and as a Reward of his Service, was appointed one of the Commi&s;&s;ioners for Admini&s;tration of Justice, for which he got a con&s;iderable yearly Sallary out of the puclick Re|venues;</HI> If it could be made appear, that he did &s;it and vote in any &s;uch Parliament, yet that was no Crime, he being there as one of the <HI>Commi&s;&s;ioners</HI> from <HI>Scotland</HI> after the <HI>&V;NION,</HI> and after <HI>the three King|doms</HI> were under the Government of the U&s;urper, and erected in a <HI>Common-wealth.</HI> And it was <HI>denied</HI> that he was pre&s;ent at the pa&s;&s;ing of any Act again&s;t the King and the Royal Family. And if he had been pre&s;ent, as he was not; it was when the Government was in the hands of the U&s;urper and Common-wealth; and it fell under the Act
<PB N="12" REF="7">of the <HI>Engli&s;h Indemnity.</HI> And as to his being one of the Commi&s;&s;io|ners for <HI>administration of Ju&s;tice,</HI> and having a Sallary for it; He did not accept of that Imployment before the Government was &s;ettled in the hands of the U&s;urper, and Parliament of <HI>England,</HI> to which the whole Kingdom of <HI>Scotland</HI> had then &s;ubmitted. And it is very well known what good Service in accepting of that Imployment he did to his Countrey: it being the Countrey's Advantage, that &s;uch Places of <HI>Tru&s;t,</HI> were in Countreymens hands, rather than in the hands of Strangers, who under&s;tood nothing of the <HI>Laws</HI> and <HI>Cu&s;tomes</HI> of the Kingdom. And as for any Sallary he got thereby, he was never the richer for it: but on the contrary, it is very well known, he was much more in Debt in the year 1660. than he was when he entered upon that Imployment.</P>
<P>AND as the &s;aid pretended Decreet 1661, proceeds upon <HI>frivolous</HI> and <HI>calumnious Pretences,</HI> &s;o the &s;ame is made to proceed upon &s;o <HI>lame</HI> a <HI>Probations,</HI> as it is, <HI>without any Probation at all.</HI> For albeit it bear to proceed upon <HI>Swinton</HI>'s <HI>judicial Confe&s;&s;ion,</HI> there is no &s;uch Confe&s;&s;ion in the Re|cords of Parliament, other than what is contained in the <HI>vvritten Defen&s;e</HI> given in by him, under his Hand, before the Parliament, which is &s;o <HI>qua|lified,</HI> as it could never be a ground of Forfeiture again&s;t him.</P>
<P N="2">2. The &s;aid pretended Decreet 1661, is <HI>null,</HI> Becau&s;e the <HI>Minutes</HI> on the <HI>Margent</HI> of the &s;aid <HI>Inditement,</HI> which are the <HI>Warrants</HI> thereof, are ab|&s;olutely <HI>fal&s;e</HI> and <HI>forged.</HI> What is evinced from the following grounds.</P>
<P><HI>Fir&s;t,</HI> The &s;aid Minutes bearing Date 7 <HI>February,</HI> 15 <HI>May,</HI> and 12 <HI>July,</HI> 1661. and &s;o being of a con&s;iderable interval of <HI>Time</HI> one from another, are neverthele&s;s written at <HI>one</HI> and the <HI>&s;ame</HI> time; and as by the &s;ame <HI>Hand,</HI> &s;o with the &s;ame <HI>Pen,</HI> and the &s;ame <HI>Ink:</HI> and by comparing the Ink wherewith they are written, with that of a Minute on the <HI>foot</HI> of the Inditement, &s;igned by the Earl of <HI>Glencairn</HI> as Chancellor, of the &s;ame <HI>Date</HI> with the fir&s;t of them, <HI>viz.</HI> 7 <HI>Feb.</HI> 1661. (and which is the only <HI>true</HI> Minute extant in the Proce&s;s) it is evident the Ink of the Minutes on the Margent is a great many years <HI>recenter.</HI></P>
<P><HI>Secondly,</HI> All the three Minutes on the Margent of the Inditement,
<PB N="13" REF="7">being Signatures of the Procedure of the Parliament, as to this Affair, <HI>in plain Parliament;</HI> the fir&s;t thereof 7 <HI>Feb.</HI> 1661. bears, the then Lord Advocat's <HI>giving in the &s;aid Inditement, vvith the former Decreet against</HI> Swinton <HI>(then Pannel) and craving that the &s;aid De|creet might be ratified; and</HI> further, <HI>that the &s;aid</HI> new <HI>Inditement might be found relevant, and admitted to his Probation;</HI> the King &amp; E&s;tates of Parl. are &s;aid <HI>to ordain</HI> BEFORE ANSWER, <HI>the new Inditement to be give up to</HI> Swinton, <HI>to &s;ee and an&s;wer.</HI> And yet it is evident by the Records of <HI>Parliament,</HI> that the Parliament met not at all <HI>that day,</HI> but only the <HI>Articles.</HI> And by the <HI>true</HI> Minute on the foot of the Inditement, the &s;aid 7th. of <HI>February</HI> 1661. the <HI>Lords of the Articles ordained</HI> the &s;ame thing, which the Minute on the Margent <HI>fal&s;ly</HI> &s;ays, was ordained by the King and E&s;tates of Par|liament, <HI>viz. that the &s;aid Inditment &s;hould be given up to John Swinton of that Ilk, to &s;ee and an&s;wer;</HI> and as it accordingly was: the Copie thereof under the Advocat's hand, being delivered to <HI>Swinton,</HI> with the&s;e words at the foot thereof, (written by one <HI>Alexander Reid,</HI> the Advocate's Servant at that time, and &s;igned by <HI>Mungo Murray, Ormand</HI> Pur&s;evant) <HI>Edinburgh</HI> 7. <HI>Feberuary</HI> 1661. <HI>It is appointed, that this Inditement be given to</HI> John Swinton, <HI>and he to an&s;vver up|on</HI> Tue&s;day <HI>come a fourtnight, being the</HI> 26 <HI>of this In&s;tant.</HI> Agree|able whereunto, a <HI>Diary</HI> of the Proceedings of that Parliament 1661. written by <HI>Robert Hamilton</HI> one of the pre&s;ent Senators of the Col|ledge of Ju&s;tice, who was then one of the Clerks of Parliament, bears, that <HI>upon the</HI> 27 February, John Swinton <HI>of that Ilk hav|ing formerly received his Inditement, vvas brought that Day to the Bar, and after his Dittay vvas read, he vvas appointed that day fourtnight to give in his legal Defen&s;es.</HI> So that it is manife&s;t, that the Par|liament not &s;itting on the 7th of <HI>February,</HI> and <HI>Swinton</HI> that day getting his Inditement (by Order of the Articles,) to an&s;wer 14 days after; the <HI>fir&s;t</HI> day of his Appearance before the Parliament be|hoved to be the Day mentioned in <HI>Robert Hamilton</HI>'s Diary, and con|&s;equently that the &s;aid fir&s;t Minute on the Margent of the Inditement 7 <HI>February,</HI> 1661. is altogether fal&s;e. Neither was the <HI>term</HI> made u&s;e of, [BEFORE ANSWER] either the <HI>Stile</HI> of Parlia|ment,
<PB N="14" REF="8" MS="y">or indeed of any Court at that time, it being a term introdu|ced long after: nor was it at all in this ca&s;e <HI>intelligible,</HI> it being impo&s;|&s;ible that an Inditement could be <HI>con&s;idered</HI> before it was given up, and <HI>&s;een</HI> by the Party.</P>
<P><HI>Thridly,</HI> The &s;econd of the &s;aid Minutes bearing Date the 15 of <HI>May</HI> 1661. is manife&s;t from <HI>ocular in&s;pecton</HI> to be fal&s;e, and that it and the other two (being writ all at the &s;ame time) behoved to be forged after the year 1670. For when <GAP DESC="illegible" RESP="UOM" EXTENT="1 span"> that writes the Minutes, was writing the Ciphers of the <HI>Year,</HI> as thinking upon the year wherein the &s;aid Minutes were <GAP DESC="illegible" RESP="UOM" EXTENT="1 span"> by him, (which appears by the Earl of <HI>Crawfurd's</HI> Letter, behoved to be the year 1674.) he hath fir&s;t written 167 and the <HI>taking him&s;elf,</HI> and finding his <HI>mi&s;take,</HI> he makes the Cipher 7 a 6. and adds the Cipher 1. to it, to make it the year which the Minute behoved to bear, <HI>viz.</HI> 1661. the vitiat Correction &s;tanding in the Minute thus, 1661. Into which mi&s;take, a Man writing <HI>after</HI> the year 1670. might ea&s;ily fall; but it is obvi|ous to Sen&s;e, that no Man could have fallen into &s;uch a mi&s;take, writing <HI>before</HI> the year 1670. 2. By this Minute <HI>May</HI> 15. <HI>Swin|ton</HI> is made <HI>appearing and judicially confe&s;&s;ing that he went with</HI> Crom|wel <HI>and his Army to</HI> Worce&s;ter, <HI>and was with him in that Battel;</HI> whereas there was no &s;uch judicial Confe&s;&s;ion made, which cer|tainly <HI>if made,</HI> had been taken under <HI>Swinton's hand,</HI> and <HI>&s;ub&s;cribed</HI> by the Pre&s;ident of Parliament: neither of which were done. And <HI>Robert Hamilton</HI>'s fore&s;aid Diary bears only, that the &s;aid 15 <HI>of</HI> May, Swinton's <HI>Dittay with his An&s;vvers, vvere read before the Parliament in his pre&s;ence, and he al&s;o heard &s;peak verballie for him&s;elf, and that the Lord Advocate opponed the Dittay, and produced the former Decreet of Forfeiture again&s;t him,</HI> (which <HI>de facto</HI> was never produc'd till now, tho the <HI>fir&s;t</HI> Minute fal&s;ly bear, it was produc'd the 7 <HI>Feb.</HI>) <HI>and which former Decreet the Pannel de&s;iring to &s;ee, the Parliament a&s;&s;igned him</HI> Fri|day <HI>come eight dayes to &s;ee, and &s;ay vvhat he could &s;ay.</HI> Which la&s;t part, the fore&s;aid Minute doth al&s;o bear, <HI>viz.</HI> That <HI>the Pannel was ordained to &s;ee the former Sentence of Forfeiture, and to an&s;wer</HI> Friday <HI>come eight dayes, being the</HI> 24. <HI>of</HI> May: but with this difference, that the Mi|nute bears, upon the <HI>Pannels</HI> de&s;iring to &s;ee the &s;aid Decreet, <HI>it was</HI>
<PB N="15" REF="8">then <HI>given up to him.</HI> Whereas it is evident by the Copy of the &s;aid Decreet, delivered to <HI>Svvinton</HI> by the &s;aid <HI>Alexander Reid,</HI> the Advocate's Servant. that it was not delivered to him till the 17 of <HI>May;</HI> it being &s;o marked upon the back, with the &s;aid <HI>Alexan|der Reid</HI>'s hand, <HI>viz.</HI> That it was given to <HI>Svvinton</HI> upon the 17. of <HI>May,</HI> to an&s;wer the 24. By all which it is evident, that <HI>Swin|ton</HI> did make no &s;uch judicial Confe&s;&s;ion the fore&s;aid 15 of <HI>May,</HI> there being no ve&s;tige of it, either under his <HI>own,</HI> or under the <HI>Pre&s;ident</HI>'s hand, extant in Proce&s;s. And it being mo&s;t ab&s;urd, af|ter a <HI>judicial Confe&s;&s;ion,</HI> which in Criminals is both Proof and Con|demnation, (&s;ince <HI>confe&s;&s;us pro condemnato habetur,</HI>) that any fur|ther Day &s;hould be a&s;&s;igned to the Pannel for Defen&s;e. 3. This Minute of the 15 of <HI>May</HI> 1661. ordains <HI>Swinton</HI> to &s;ee and an|&s;wer, as &s;aid is, again&s;t the 24 of <HI>May.</HI> And yet neither doth the Decreet bear, that <HI>Swinton</HI> was <HI>again</HI> called, nor any thing at all of this Matter of Fact, <HI>that he was ordained to &s;ee the former De|creet upon the</HI> 15 <HI>of</HI> May <HI>and to an&s;wer thereunto again&s;t the</HI> 24. (which the&s;e who framed the Decreet, indu&s;triou&s;ly omit, as fore&s;eeing the in&s;erting thereof would have inferr'd a <HI>Nullity</HI> again&s;t it.) Nor was <HI>Swinton</HI> ever again called, or brought before the Parliament, either that Day, or any time thereafter.</P>
<P><HI>Fourthly,</HI> As to the thrid and la&s;t of the &s;aid Minutes upon the Margent of the Inditement, which is made to be upon the 12. of <HI>July</HI> 1661. and which is the principal Minute whereupon the pretended De|creet of the Parliament 1661. is founded; the <HI>Fal&s;hood</HI> thereof is mo&s;t manife&s;t: in that 1. It makes <HI>Swinton compearing</HI> that Day as a <HI>Pannel,</HI> whereas it is certain the did not appear that Day, nor at any time after the 15. of <HI>May.</HI> 2. By this Minute not only the fore&s;aid pretended Decreet of the Committee of E&s;tates 1651. is <HI>ratified,</HI> but <HI>Swinton</HI> is declared <HI>of new guilty of the Crime of Trea|&s;on, upon his judicial Confe&s;&s;ion.</HI> And yet there is no &s;uch judicial Confe&s;&s;ion extant, nor was there ever any &s;uch Confe&s;&s;ion made by him, but what was &s;o qualified as <HI>cleared</HI> him 3. It makes the Par|liament ratifie the &s;aid pretended Decreet 1651. without his being <HI>heard</HI> upon his <HI>Defen&s;e</HI> again&s;t the &s;ame, tho a Day was a&s;&s;igned
<PB N="16" REF="9">to him for that effect. 4. The &s;aid Minute has none of the Solemnities of a Sentence of Forfeiture for Trea&s;on, &s;eing it does not bear, READ, VOTED, TOUCHED <HI>with the Scepter,</HI> or any Warrant for <HI>Publication</HI> by &s;ound of <HI>Trumpet,</HI> or for <HI>tearing of Arms:</HI> which are the <HI>ordinary</HI> and <HI>indi&s;pen&s;able</HI> Solemnities in u&s;e to be adhibited, in the pronouncing of Sentences and Dooms of Forfeiture in Parlia|ment. And the <HI>Signatures</HI> of which Sentences and Dooms of For|feiture, after the <HI>voting</HI> and <HI>touching</HI> thereof, as always written upon a Paper apart, <HI>di&s;tinct</HI> from the Proce&s;s, and <HI>&s;igned</HI> by the <HI>Chancel|lor,</HI> or <HI>Pre&s;ident</HI> of Parliament, and what is punctually ob&s;erved inall the Forfeitures <HI>truely</HI> pa&s;s'd in this Parliament, as is evident from the Re|cords. No &s;uch thing being to be found in <HI>Swinton's</HI> Ca&s;e: what doubt|le&s;ly would not have been omitted, if any Doom of Forfeiture had truely pa&s;&s;ed, by VOTE of Parliament, again&s;t him.</P>
<P><HI>Fifthly,</HI> All the &s;aid three Minutes are &s;ub&s;cribed by the late Earl of <HI>Crawford,</HI> as Pre&s;ident of the Parliament 1661. with the&s;e Letters ad|jected to his Sub&s;cription, <HI>J. P. D. P.</HI> as if &s;ub&s;cribed by him in that Parliament, <HI>in prae&s;entia Dominorum Parliamenti:</HI> and the Earl's Letter, which a litle before his Death he wrote to the decea&s;s'd <HI>Swinton,</HI> in the year 1674. di&s;covers not only that they were not <HI>&s;igned</HI> by him till <HI>then,</HI> which was 13 years after, but that they were not &s;o much as <HI>written</HI> till that time&punc; And the Earl being a Per&s;on of &s;uch un|tainted <HI>Honour</HI> and <HI>Reputation,</HI> as he was known to be, his Te&s;timony alone in this matter of Fact (&s;o ingenuou&s;ly declaring the manner how he was prevailed with to &s;ign the &s;aid Minutes at that time (and what <HI>&s;cruples</HI> he had again&s;t the doing thereof, when he did it) is &s;ufficient if there were no more, to convell the truth of the&s;e Minutes, and a con|vincing Demon&s;tration to the world, of their Forgery; and what un|due Methods were taken at that time-to perpetuat the Ruine of &s;o antient a Family.</P>
<P><HI>Sixthly,</HI> And yet there is this further, and which is an Argument un|an&s;werable of the <HI>fal&s;hood</HI> of the &s;aid Minutes, whereupon the &s;aid pre|tended Decreet of the Parliament 1661 is founded. That after they were thus made up by <HI>Hay&s;toun</HI> and the Earl of <HI>Craw&s;urd</HI>'s Sub&s;cription impetrat thereunto in the manner narrated in his Lord&s;hip's Letter,
<PB N="17" REF="9">Sir <HI>Archibald Primero&s;e</HI> the then Clerk Regi&s;ter thought him&s;elf not <HI>in tuto</HI> to give any Extract therof under his Hand to the Duke of <HI>Lau|derdale,</HI> till upon a Petition given in by the Duke to the Lords of Se&s;&s;ion, bearing, that the &s;aid Sir <HI>Archibald</HI> &s;crupled <HI>to give any &s;uch Extract,</HI> he was ordained by them to do the &s;ame: it being impo&s;&s;ible to imagin &s;o knowing a man as Sir <HI>Archibald Primero&s;e</HI> was, could have any o|ther rea&s;on to &s;cruple at the doing of a thing of this nature, whereun|to the duety of his Office oblig'd him, (e&s;pecially to a Man of &s;uch Power as the Duke of <HI>Lauderdale</HI> then was,) unle&s;s it had been that he was con&s;cious to him&s;elf of the fal&s;hood of tho&s;e Minutes, which to gratifie the Duke, he had per&s;waded the Earl of <HI>Crawfurd</HI> to &s;ign &s;o many years after the Parliament 1661.</P>
<P>FROM ALL WHICH, it is evident upon how <HI>lame</HI> and <HI>defe|ctive</HI> a Title the E&s;tate of <HI>Swinton</HI> hath been po&s;&s;e&s;s'd by the late Duke and this Earl of <HI>Lauderdale,</HI> the&s;e 30 years by pa&s;t. The pretended De|creet of the Committee of E&s;tatees 1651. whereupon the Duke obtain|ed his Gift, having proceeded upon &s;uch <HI>vveak</HI> Pretences, and <HI>defec|tive</HI> Probation, and look'd upon as &s;o <HI>in&s;ignificant,</HI> that it was <HI>pa&s;s'd from</HI> by Intenting of a <HI>nevv</HI> Inditement for the <HI>&s;ame</HI> Crime, before the Parliament 1661. And albeit a Sentence neither <HI>did,</HI> nor <HI>could</HI> pa&s;s upon that Inditement (after a <HI>Term</HI> was a&s;&s;igned by the Parliament for a <HI>further Hearing</HI>) till <HI>Svvinton</HI> had been FURTHER HEARD, which he <HI>never vvas;</HI> a Decreet neverthele&s;s is made up on <HI>fal&s;e Minutes,</HI> as pa&s;s'd in that Parliament, <HI>ratifying</HI> the former Decreet a|gain&s;t him, and <HI>forfeiting</HI> him of <HI>new,</HI> (which are <HI>terms incon&s;i&s;tent</HI> in Law.) And neither the Duke of <HI>Lauderdale,</HI> nor this Earl, having the lea&s;t <HI>colour</HI> to ju&s;tifie &s;o horrid a <HI>vvrong,</HI> or the <HI>oppre&s;&s;ion</HI> and <HI>hard&s;hip</HI> the decea&s;s'd <HI>Swinton</HI> and his Children have been thereby <HI>expo&s;ed</HI> to during &s;o long a tract of time, with the <HI>lo&s;s</HI> his lawful <HI>Creditors</HI> have thereby <HI>&s;utain'd;</HI> except the &s;ole Pretence of <HI>Swinton</HI>'s having po&s;&s;e&s;s'd a part of the E&s;tate of <HI>Lauderdale,</HI> during a few years of the <HI>Engli&s;h</HI> U&s;urpa|tion, tho the yearly Rent therof was far within <HI>one half</HI> of the yearly Rent of the E&s;tate of <HI>Swinton:</HI> and as to which this <HI>Svvinton,</HI> who now in&s;i&s;ts for Recover of his Father's Inheritance, being content to allow
<PB N="18" REF="10">all that ever his Father intrometted with of the E&s;tate of <HI>Lauderdale</HI> the fir&s;t end of the Earl and his Brother's Intromi&s;&s;ion with the E&s;tate of <HI>Svvinton</HI> (which will be of ten times a greater value;) IT IS HOPED the PARLIAMENT <HI>ex Justitia,</HI> will REDUCE the &s;aid two pretended <HI>Decreets,</HI> and <HI>Gift</HI> of <HI>Forfeiture,</HI> with all that he followed thereupon, and <HI>RESTORE</HI> the <HI>Swinton IN INTEGR&V;<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"></HI> again&s;t the &s;ame.</P>
<TRAILER>FINIS.</TRAILER>
</DIV2>
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
