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<NAME>Korey Jackson</NAME>
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<P>ANSWERS FOR THE EARL of LAUDERDALE, TO A PRINTED PAPER, (Entituled, The Ca&s;e of JOHN SWINTON, <HI>In relation to his Fathers Forefaulture) and to the pre|tended Rea&s;ons of Reduction of the &s;aid Forfaulture, Alledged to be now depending before the Parliament.</HI></P>
<P><HI>Edinburgh,</HI> Printed by the Heir of <HI>Andrew Ander&s;on;</HI> 1690.</P>
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<HEAD>An&s;wers for the Earl of <HI>Lauderdale,</HI> to a Printed Paper (Entituled, The Ca&s;e of <HI>John Swinton,</HI> in relation to his Fathers Forfaulture) and to the pretended Rea|&s;ons of Reduction of the &s;aid Forfaulture, Alledged to be now depending before the Parliament.</HEAD>
<P>_THE decea&s;t <HI>John Swinton,</HI> being a Per&s;on of a con&s;iderable Inte|re&s;t and Tru&s;t in the Kingdom of <HI>Scotland,</HI> in <HI>Anno</HI> 1651. U|pon the Inva&s;ion of <HI>Cromwel,</HI> and the <HI>Engli&s;h</HI> Rebels, <HI>Swinton</HI> did de&s;ert his Soveraign, and Native Countrey, and abandoned his Charge in the Army; and did joyn and a&s;&s;ociat him&s;elf with the U&s;urper <HI>Cromwell;</HI> for which he and &s;ome other Traitors were Cited before the Parliament at <HI>Perth;</HI> and the matter being remitted by the Par|liament to the Committee of E&s;tates; and His late Maje&s;ty King <HI>Charles</HI> the Second being pre&s;ent in the Committee; and the matter being both notourly known, as al&s;o &s;ufficiently proven, <HI>John Swinton</HI> was Forefault in <HI>anno</HI> 1651. for de&s;erting his Charge in the Army, and joyning with <HI>Cromwel:</HI> Thereafter <HI>John Swinton</HI> marched with <HI>Cromwel</HI> to <HI>Worcester,</HI> and did actually appear in Arms again&s;t his Soveraign in Per&s;on, when the Royal Family, and his Native Countrey, were at the la&s;t and outmo&s;t extremity, where the late Duke of <HI>Lauderdale,</HI> being taken Pri&s;oner in defence of his Soveraigns Right, and pre|&s;ervation of his native Countrey from &s;lavery, was thereafter detained three years clo&s;s Pri&s;oner in the Tower of <HI>London,</HI> expecting every hour the &s;troak of the Executioner; and was kept other three years in a Vault at <HI>Portland</HI>-Ca&s;tle, and being tran&s;ported thence to <HI>Wind&s;or</HI>-Ca&s;tle, he was likewi&s;e de|tained Pri&s;oner there other three years: And being Forfeited for his Loyalty by tho&s;e Regicides, <HI>John Swinton</HI> did improve his Intere&s;t and Power he had with the U&s;urper <HI>Cromwell,</HI> (being his great Minion and Tru&s;tee, being no|minat by him to be a Lord both of Council, Exchequer and Se&s;&s;ion) to &s;o ba&s;e and ungenerous ends, that he did per&s;ecute tho&s;e who had faithfully ad|hered to their Soveraign and Native Countrey, in their di&s;tre&s;s, and did pro|cure in his own Favours a Gift of the Duke of <HI>Lauderdale</HI>'s Forfaulture, and thereby did po&s;&s;e&s;s a con&s;iderable part of his E&s;tate, to the value of one thou|&s;and Pounds <HI>Sterling per annum,</HI> for the &s;pace of more than 8 years; the re&s;t of the Duke's E&s;tate being po&s;&s;e&s;&s;ed by as notorious Traitors as him&s;elf, du|ring all which time, the Duke of <HI>Lauderdale</HI>'s Lady and Daughter, were re|duced to &s;uch &s;traits and nece&s;&s;ities, that they had not Bread to eat, the
<PB N="2" REF="3" MS="y">
unju&s;t Invaders of his E&s;tate, neither allowing him any thing out of the &s;ame, to maintain him&s;elf and his Family, nor yet interpo&s;ing with the U&s;urper for an allowance out of the Publick: In which condition the Duke lived, till it plea&s;ed God to extricate him out of the&s;e &s;traits and difficulties, by the happy Re&s;tauration of his Native Soveraign King <HI>Charles</HI> the Second, in <HI>anno</HI> 1660.</P>
<P>In <HI>anno</HI> 1661. <HI>John Swinton</HI> was &s;ent down Pri&s;oner from <HI>London,</HI> to be Judged by the Parliament of <HI>Scotland;</HI> and being conveened before the Parliament, His <HI>Maje&s;ties</HI> Advocat did in&s;i&s;t again&s;t him, not only upon the former Sentence, and Doom of Forfaulture pa&s;t again&s;t him in <HI>anno</HI> 1651. And that the &s;amine might be put to further Execution, but likewi&s;e exhibi|ted a new Inditement again&s;t him, upon &s;everal new additional Articles of Trea&s;on, and particularly upon his going along with the Rebels to, and be|ing in Arms at the Fight of <HI>Worce&s;ter</HI> again&s;t his Soveraign in per&s;on: And <HI>John Swinton</HI> having appeared &s;everal times in the Pannel, he not only <HI>viva voce</HI> did acknowledge, but by Defences Written and Sub&s;cribed with his own Hand, given in to the Parliament, he confe&s;&s;ed his being in Arms at <HI>Wor|ce&s;ter</HI> with the U&s;urper <HI>Cromwel</HI> again&s;t his Soveraign, but did plead the be|nefite of the Act of Indemnity in <HI>England,</HI> which did not at all concern <HI>Scots|men,</HI> whereupon the Parliament in <HI>anno</HI> 1661, did not only Ratifie and Ap|prove the former Doom and Sentence of Forfaulture pronounced again&s;t the &s;aid <HI>John Swinton,</HI> by the Committee of E&s;tates in <HI>anno</HI> 1651, but al&s;o for the additional Crimes contained in the new Inditement acknowledged by him|&s;elf, both <HI>viva voce</HI> before the Parliament, and by the Written and Sub&s;crib|ed Defences <HI>Swinton</HI> was again Forfaulted: And in the next Se&s;&s;ion of that &s;ame Parliament, the Doom of Forfaulture again&s;t <HI>Swinton</HI> is mentioned and related in the Act of Indemnity, and he and &s;ome others are expre&s;ly excep|ted from the Indemnity, as &s;tanding Forfault by that &s;ame Parliament.</P>
<P>King <HI>Charles</HI> the Second was graciou&s;ly plea&s;ed to gift and be&s;tow <HI>Swinton</HI>'s Forfaulture to the late Duke of <HI>Lauderdale,</HI> not only in con&s;ideration of his faithful Services, and great Sufferings, but particularly becau&s;e <HI>John Swinton</HI> had taken a Gift from the U&s;urpers, of a con&s;iderable part of the Duke of <HI>Lauderdale</HI>'s E&s;tate: So that there was never any Forfaulture upon more ju&s;t and important Crimes, nor did ever any Prince Gift a Forfaulture upon more rea&s;onable and equitable con&s;iderations. Neverthele&s;s after the Duke of <HI>Lau|derdale</HI>'s decea&s;e, in <HI>anno</HI> 1682, when his Family and Repre&s;entatives were in very hard circum&s;tances, <HI>Swinton</HI>'s Son did impetrat and procure from the late King <HI>Charles</HI> the Second, upon mo&s;t fal&s;e and di&s;ingenuous repre&s;entati|ons, a Commi&s;&s;ion for enquiring into the Method and Procedure, and the Warrands upon Record of <HI>Swinton</HI>'s Forfaulture: and there being a multi|tude of frivolous Objections offered by <HI>Swinton</HI>'s Son, and full An&s;wers there|to, by the Earl of <HI>Lauderdale,</HI> and the Creditors of the decea&s;t Duke of <HI>Lau|derdale:</HI> And both Parties being heard <HI>viva voce</HI> before that Commi&s;&s;ion, the
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Commi&s;&s;ioners were fully &s;atisfied, that nothing of moment was in&s;tructed, and that the Crimes for which <HI>Swinton</HI> was Forfeited at <HI>Perth, viz.</HI> his de&s;er|ting his Charge in the Army, and joyning with the Rebel <HI>Cromwel,</HI> and his being thereafter in Arms at <HI>Worce&s;ter,</HI> for which he was again Forfeited in the Parliament, 1661. was not only true and incontroverted, but acknow|ledged by <HI>Swinton</HI> him&s;elf, in his An&s;wers given in to his Inditement, which were Written and Sub&s;cribed with his own Hand, as &s;aid is: So that if there had been any Informality in the Proce&s;&s;es of Forfeiture, as there were none; yet the&s;e Informalities could have no effect, and ought not to be re|garded: E&s;pecially &s;eing by the 135 <HI>Act, Parl.</HI> 8. K. Ja. the 6. It is Sta|tuted, that no Forfeiture for Trea&s;on again&s;t the King, and His E&s;tates, &s;hall be Reduced for any pretended Cau&s;e of Nullity, that may be Alledged to have been in the Proce&s;s, except the Crime be either Remitted by His Maje&s;ty, or that it could be purged and acquit by a Tryal. Whereupon the Commi&s;&s;ion was de&s;erted.</P>
<P>Thereafter the &s;aid <HI>John Swinton</HI>'s Son and his Relations, being con&s;cious to them&s;elves, that they could not prevail to Reduce the fore&s;aids two De|creets of Forfeiture, pronounced again&s;t his decea&s;t Father, the Crimes for which he was Forfeit being both notour and proven, and acknowledged by him&s;elf, they did fall upon another Contrivance, which was in <HI>anno</HI> 1685, or 1686. to procure an Rehabilitation to <HI>Swinton</HI>'s Children, with a Remi&s;|&s;ion of the Crime, thinking thereby, and by the intere&s;t with the Quakers, and others who had then Influence at Court, that they would lay a force upon the Earl of <HI>Lauderdale,</HI> either to Tran&s;act with the &s;aid <HI>John Swinton</HI> for the E&s;tate of <HI>Swinton,</HI> or if he refu&s;ed to do the &s;ame, they would procure a Recommendation to the next Parliament, to Reduce the Forfeitures upon the former frivolous Objections, and pretended Nullities offered before the Commi&s;&s;ion: But the Tenor of the Rehabilitation running upon the&s;e &s;ame fal&s;e Grounds and Sugge&s;tions, which were in&s;inuat to King <HI>Charles</HI> the Se|cond, when the Commi&s;&s;ion was obtained in <HI>anno</HI> 1682. and which being objected again&s;t by the Lord <HI>Maitland,</HI> then at Court, the Letter of Rehabili|tation in favours of <HI>Swinton</HI>'s Children, was refu&s;ed.</P>
<P>This being a &s;hort and true Account of the matter of Fact in relation to the Forfeitures of <HI>Swinton,</HI> and the Gift thereof in Favours of the late Duke of <HI>Lauderdale,</HI> and the Contrivances that have been fallen upon of late to quar|rel the &s;ame: A Paper lately came out in Print, (<HI>Intituled the Ca&s;e of</HI> John Swinton <HI>of</HI> Swinton, in relation to his Fathers Forfeiture, with the Rea&s;ons of Reduction of the &s;aid Forfeiture) &s;hall be made appear to any indifferent per&s;on to be Di&s;ingenious, Fal&s;e, Calumnious, and incon&s;i&s;tent with the Laws of this, and all other Nations, both from what has been &s;aid before, and what &s;hall be hereafter &s;aid in the particular An&s;wers to the Rea&s;ons of Reduction.</P>
<P>It is repre&s;ented in the &s;aid Paper, that the Duke of <HI>Lauderdale</HI> after the Re&s;tauration of King <HI>Charles</HI> the Second, fir&s;t entered into the Po&s;&s;e&s;&s;ion, and
<PB N="4" REF="4" MS="y">
then obtained a Gift of the Decea&s;t <HI>Swinton</HI>'s E&s;tate, upon pretence of his being Forfeited by the Committee of E&s;tates, in <HI>anno</HI> 1651. for his being with the <HI>Engli&s;h,</HI> albeit there was nothing ever could be made appear to e|vince that there was ever any &s;uch Forfeiture again&s;t <HI>Swinton</HI> in the year 1651. But the pretended Extract of a Decreet in ab&s;ence, elicite from an Under Clerk ten years after, of which there was never the lea&s;t Warrand upon Record. And as to the Forfeiture in the year 1661. there was only a Proce&s;s intented, which never came the length of a Sentence: And <HI>Swin|ton</HI> having objected it to the Duke of <HI>Lauderdale,</HI> in the latter end of the year 1673. There were Methods taken in <HI>January</HI> 1674. for making up of the Minuts, as if a Sentence of Forfeiture had followed upon the Proce&s;s, and a Decreet extracted upon the &s;ame, 13, or 14 years after the intended Pro|ce&s;s, and Sir <HI>Archibald Primero&s;e,</HI> who was then Clerk Regi&s;ter, dealt fir&s;t with the Earl of <HI>Crafurd</HI> to &s;ign the &s;aid Minuts, albeit 13 years after that Parlia|ment, at lea&s;t that Se&s;&s;ion of Parliament was no more in being, and then cau&s;ed application to be made in behalf of the Duke of <HI>Lawderdale,</HI> to the Lords of Se&s;&s;ion, to give their Warrant for Extracting, what he was con|&s;cious to him&s;elf was &s;o unwarrantably done: And that the Earl of <HI>Crafurd</HI> had declared under his hand, by a Letter left with his Daughter, Lady <HI>He|len Sinclair,</HI> how he was prevailed with by the &s;aid Sir <HI>Archibald Primro&s;e,</HI> to &s;o unju&s;tifiable a practice, and which Letter is &s;et down at length in the fore|&s;aid Paper; and that the Duke of <HI>Lauderdale</HI> notwith&s;tanding of his great power, dur&s;t not adventure, albeit that he knew his Title to that E&s;tate, to be defective, to put a Crime &s;o calumnious, as was charged upon the De|cea&s;t <HI>John Swinton,</HI> to the Tryal of a Parliament, knowing that he would have been able to have Cleared him&s;elf: And that the Letter written by the Earl of <HI>Crafurd,</HI> having been &s;hown to the King, he did grant a Commi&s;&s;i|on to make inquiry in the whole procedor, concerning <HI>Swinton's</HI> Forfeiture, and to in&s;pect the Records of Parliament, in relation to the &s;ame, and to make Report thereof to His Maje&s;ty. And the Records of Parliament being in&s;pected, there was nothing found, that related to any pretended Decreet of Forfeiture again&s;t <HI>Swinton,</HI> in the Parliament 1651. And as to the Parlia|ment 1661. all that was found, did appear from the Records of Parliament to be fal&s;e. But this Earl of <HI>Lauderdale,</HI> had that influence, upon tho&s;e, to whom the Commi&s;&s;ion was direct, as rendered the &s;ame ineffectual.</P>
<P>This being the &s;um of <HI>John Swinton</HI>'s Ca&s;e, as he's plea&s;ed to term it; It is An|&s;wered thereto, 1^o. That it is mo&s;t fal&s;e and calumnious, that the Duke of <HI>Lau|derdale</HI> did enter to the po&s;&s;e&s;&s;ion of the E&s;tate of <HI>Swinton,</HI> before he obtained the Gift of Forfeiture: For the deceas'd <HI>John Swinton</HI> being Forfeited by the Committee of E&s;tates, in <HI>anno</HI> 1651. who had power from the Parliament, then &s;itting at <HI>Perth,</HI> to di&s;cu&s;s the relevancy, and probation of the Inditement, rai&s;ed again&s;t the &s;aid decea&s;t <HI>John Swinton</HI> and others, and to decide and de|termine therein, as fully in all re&s;pects, as the Parliament &s;itting in <HI>pleno e<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> |&s;e&s;&s;u,</HI>
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might have done: After the King's Re&s;tauration, that &s;ame Commit|tee being appointed by the King to meet in <HI>anno</HI> 1660. to mannage the pub|lick concerns of the Kingdom, until a Parliament was called, they among&s;t other things, did Seque&s;trat the &s;aid <HI>John Swinton's</HI> E&s;tate, whom they knew they had Forfeited in <HI>anno</HI> 1651. and did appoint <HI>George Hume</HI> of <HI>Kaimes,</HI> to intromet with the Rent of the &s;aid E&s;tate, and to be comptable to the King, or Lords of The&s;aury. And the Duke of <HI>Lauderdale</HI> did not intromet with a &s;ix pence thereof, until the <HI>Martinma&s;s</HI> 1661. which was long after, both the la&s;t Sentence of Forfeiture, and his Gift thereof from his Maje&s;ty. 2^o. As to the Decreet of Forfeiture in <HI>anno</HI> 1651. Altho the Warrands thereof were lo&s;t, with &s;everal other publick Records coming down from <HI>London</HI> in <HI>anno</HI> 1660. yet the Extract thereof mu&s;t make as much Faith, as if the War|rants thereof were yet extant, &s;eing it is notourly known, that the Lords of Se&s;&s;ion &s;u&s;tains all Extracts out of the Regi&s;ters of the&s;e years 1648, 49, 50, and 51. and refu&s;es to grant Certifications again&s;t any Writs Regi&s;trat the&s;e years, becau&s;e the Warrants of the Regi&s;ters of the&s;e years were lo&s;t: But that which puts the truth and verity of this Decreet, beyond all que&s;tion is this, that Lieutenant <HI>Govan</HI> who was Forfeited at that &s;ame time with <HI>John Swinton,</HI> and contained in the &s;ame Decreet with him, was put to death by Order of the Parliament, in <HI>anno</HI> 1661. by vertue of the fir&s;t Sentence in <HI>anno</HI> 1651; as is evident by the la&s;t Minuts upon the Margin of that De|creet, <HI>anno</HI> 1651. Ordaining the Sentence of Death to be execute again&s;t him, conform to the &s;aid Decreet; and which Minuts are Sub&s;cribed by the then Pre&s;ident of the Parliament, 1661. So that to Redargue the Faith and Verity of that Decreet of Forfeiture, were to accu&s;e the Parliament of ma|nife&s;t Inju&s;tice, and lay an Imputation upon the Parliament, of putting a Man to death upon a fal&s;e Decreet, which the meane&s;t Judicature in <HI>Scot|land</HI> could not be guilty of, far le&s;s the Supreme Judicature of the Nation: and it is obvious to any man's &s;en&s;e, that if this Decreet had been fal&s;e, Lieute|nant <HI>Govan</HI> when he was called before the Parliament, and received the Order, and Sentence of Death, would have reclaimed again&s;t the Faith and Verity of that Decreet; &s;o that the Parliaments Approbation of this Decreet of Forfeiture, by executing of <HI>Govan,</HI> and his not reclaiming again&s;t the &s;ame, and the Parliaments again approving thereof in the la&s;t Sentence of Forfei|ture again&s;t <HI>Swinton,</HI> in <HI>anno</HI> 1661. are unan&s;werable Documents of the Verity and Faith of the &s;aid Decreet.</P>
<P N="3">3^o. For a&s;tructing the Verity of the Decreet of Forfeiture in <HI>anno</HI> 1661. there needs no more be &s;aid, but that the Li&s;t of the Unprinted Acts of the fir&s;t Se&s;&s;ion of the Parliament, <HI>anno</HI> 1661. contains both the Decreet of For|feiture again&s;t <HI>John Swinton,</HI> and he Ratification in favours of the late Duke of <HI>Lauderdale,</HI> of the Gift of <HI>Swinton's</HI> Forfeiture: And in the Act of In|demnity, which was pa&s;t in the &s;econd Se&s;&s;ion of that &s;ame Parliament, the Decreet of Forfeiture again&s;t <HI>John Swinton,</HI> is particularly excepted there|from,
<PB N="6" REF="5" MS="y">
which beyond all que&s;tion doth adminiculat and a&s;truct the Verity of the &s;aid Sentence and Doom of Forfeiture, and that the &s;ame was made up after the year 1673. appears evidently to be fal&s;e, becau&s;e the per&s;on who Scrolled that Decreet of Forfeiture, who&s;e name was <HI>Brown,</HI> was put out of <HI>Hay&s;toun's</HI> Service and Writing-Chamber in <HI>anno</HI> 1663, and was dead before the year 1670. And the Regi&s;ters of the Decreets of Forfeiture were all Written in one Book by <HI>David Plenderleith,</HI> before the year 1669. and de|livered in to the Regi&s;ter, and among&s;t which is in&s;ert the &s;ame Sentence of Forfeiture again&s;t <HI>Swinton,</HI> &s;o that the fal&s;ene&s;s of that a&s;&s;ertion is evident, that the Parliament 1661. did not proceed to a Sentence upon that Proce&s;s, rai&s;ed again&s;t <HI>Swinton,</HI> and that there were never Decreets Extracted till the year 1674. and Sir <HI>Archibald Primro&s;e</HI> was known to be a per&s;on of &s;uch In|tegrity, and &s;o Cautious in all his Actings, that although he be loaded by <HI>John Swinton</HI> with &s;ini&s;trous and indirect Methods, in making up of the Mi|nutes of the &s;aid Decreet, and procuring a Warrant for Extracting the &s;ame, not &s;paring his Reputation now after his death, to attain his unju&s;t ends, which he dur&s;t not in the lea&s;t adventure upon while he was alive: Yet by what has been &s;aid, and by the following An&s;wers to <HI>John Swinton</HI>'s preten|ded Rea&s;ons of Reduction, it &s;hall be made evident and clear, he did nothing in this Affair, but what he was warranted both from the Records of Parlia|ment, and Laws of the Kingdom. 4^o. As to that pretence, that it was thought &s;trange that the Duke of <HI>Lauderdale,</HI> being a man of &s;uch power, dur&s;t not adventure to put a Crime &s;o Calumniou&s;ly Charged upon <HI>John Swinton,</HI> to the Tryal of a Parliament. It is An&s;wered, It is thought more &s;trange, that <HI>John Swinton</HI> being innocent of the&s;e Crimes, as is pretended in the &s;aid Paper, for which he was Indited and Convict, both by the Committee of the E|&s;tates, 1651. and Parliament 1661. &s;hould have &s;uffered the Duke of <HI>Lau|derdale</HI> to po&s;&s;e&s;s his E&s;tate during his Life, who died but in <HI>anno</HI> 1679. and did never make application either to the Parliament, 1661. or to any other Parliament that was keeped &s;ince, for Redre&s;&s;ing that pretended In|jury that he received by the Duke of <HI>Lauderdale's</HI> pretended unju&s;t po&s;&s;e&s;&s;ion of his E&s;tate, or for Vindicating him&s;elf of tho&s;e notorious Crimes whereof he was Indited and Convict: And if there was no Sentence of For|feiture pronounced again&s;t the &s;aid decea&s;ed <HI>John Swinton,</HI> how came this <HI>John Swinton</HI> to Addre&s;s to, and Imploy his Intere&s;t with the Quakers and others in <HI>England,</HI> who had influence on His Maje&s;ty for a Commi&s;&s;ion, for inquiring into the &s;aid Forfeiture, and procedor thereof; and when this could take no effect, for a Rehabilitation to the decea&s;t <HI>John Swinton's</HI> Children, and for a Remi&s;&s;ion of the Crime to the decea&s;t <HI>John Swinton</HI> him&s;elf; for if there was no Decreet of Forfeiture again&s;t <HI>John Swinton,</HI> there needed no Commi&s;&s;ion for inquiring thereunto, neither was it nece&s;&s;ary to have de|&s;ired a Rehabilitation in favours of his Children; and if he was not guilty of Trea&s;on, there was no need of a Remi&s;&s;ion: And how came the decea&s;t
<PB N="7" REF="5" MS="y">
<HI>John Swinton</HI> in his Speech before the Parliament, 1661. to endeavour to extenuat his Guilt, by pretending that the Ambition of his younger years ha|ving entred him too early into publick Imployment, did make him Act the&s;e things, which if they were to do, he would rather with the one hand &s;trike off the other, than be guilty of them; and that he &s;poke this, can be made appear by many Witne&s;&s;es, yet alive: And if he had been as innocent of the Crimes for which he was Forfeited, as is pretended by his Son's Paper, would he have u&s;ed &s;uch an expre&s;&s;ion as this? which clears, that he was not only guilty of the Crimes, but likewi&s;e that he was &s;en&s;ible of his Fault. But the truth is, <HI>John Swinton</HI> does &s;ometime run to one Shift, and &s;ometime to another, as he thinks will help forward his pre&s;ent De&s;ign, and notwith|&s;tanding of his pretended &s;implicity, he re&s;olves <HI>calumniari audacter ut aliquid adhereat.</HI> 5^o. As to that Alledgance, that the Earl of <HI>Lauderdale</HI> had &s;uch In|fluence upon the&s;e to whom the Commi&s;&s;ion was direct in <HI>anno</HI> 1682, as ren|dred the pro&s;ecution thereof ineffectual. It is An&s;wered, That this is very &s;uitable to the re&s;t of his Alledgances, and is a gro&s;s Reflection upon tho&s;e no|minat in the Commi&s;&s;ion, &s;ome of them being as eminent per&s;ons, and of as known Integrity as is in the Kingdom: and the Alledgance is mo&s;t Calum|nious, for as the Commi&s;&s;ion was impetrat and obtained by <HI>John Swinton,</HI> and his Friends their importunity; &s;o its very notour, that the Commi&s;&s;ioners named in the &s;aid Commi&s;&s;ion, were <HI>John Swinton</HI>'s very good Friends for the mo&s;t part, and whom by his Power and Influence at Court for the time he procured mo&s;t of them &s;o to be named and appointed, and that the World may judge how the Earl of <HI>Lauderdale</HI> was &s;tated with the mo&s;t part of the Commi&s;&s;ioners, their Names are &s;ubjoyned at the end of thir An&s;wers.</P>
<P>This being in &s;hort the An&s;wer to <HI>John Swinton</HI>'s Ca&s;e, as it is &s;tated before his pretended Rea&s;ons of Reduction, except to the decea&s;t Earl of <HI>Crafurd</HI>'s Letter, (which will come in more properly afterwards in the An&s;wer to the Objection again&s;t the Minuts.) The next thing that falls in to be con&s;idered, are his pretended Rea&s;ons of Reduction.</P>
<P>To the fir&s;t Rea&s;on whereof being again&s;t the Decreet of the Committee of E&s;tates in <HI>anno</HI> 1651, and bearing, that 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>Thomas Hender&s;on</HI> pre|tended Clerk to that Committee, from whom an Extract was elicit in <HI>anno</HI> 1661, ten years thereafter, and whereof there is no Warrant extant in Re|cords of Parliament.</P>
<P>It is An&s;wered, 1^o. That it is notourly known that Mr. <HI>Thomas Hender&s;on</HI> who Sub&s;cribes the Extract of the Decreet of Forfeiture, pronounced by the Committee of E&s;tates in <HI>anno</HI> 1651, to whom the Parliament had remitted the&s;e Proce&s;&s;es of Forfeitures, was Clerk to the &s;aid Committee of E&s;tates, and the Extract of the Decreet bears, not only the Forfeiture of <HI>John Swinton,</HI> but
<PB N="8" REF="6" MS="y">
of &s;everal other per&s;ons, and among&s;t the re&s;t Lieutenant <HI>Govan,</HI> who upon the &s;ame Decreet was Execute, as appears by the Minuts in <HI>anno</HI> 1661 upon the Margine thereof, the la&s;t Minut whereof is ordaining that Decreet of Forfeiture to be put to further execution again&s;t <HI>Govan,</HI> and is Sub&s;cribed by the Pre&s;ident of the Parliament 1661, and the Sentence of Death was accor|dingly execute again&s;t him thereupon, though his Crimes were far le&s;s ob|vious and notour than the&s;e of <HI>John Swinton</HI>'s; and Clerks to Committees of E&s;tates, or Criminal Courts, or any of the Regi&s;ters Deputs, do grant au|thentick and valid Extracts, although not &s;ub&s;cribed by the Clerk Regi&s;ter; and it is a meer Calumny that the Extract was elicit from Mr. <HI>Thomas Hender|&s;on</HI> in the year 1661, and it is an intollerable imputation and reflection upon the Parliament, to &s;ay, that they would upon the &s;ame Extract have ordain|ed <HI>Govan</HI> to be Execute, and ratified and approven the Forfeiture contained in this Extract again&s;t <HI>John Swinton,</HI> if the Extract had not been both true and warrantable; and the truth is, the whole particulars that are contained in the &s;aid Extract were then recent and fre&s;h in the Memories of a great part of the Members of the Parliament 1661, who had been Members of the Com|mittee of E&s;tates in <HI>anno</HI> 1651, and who had pronounced that Decreet of Forfeiture again&s;t <HI>Swinton</HI> and others therein contain'd. 2^o. <HI>Swinton</HI> in his An&s;wers, Written and Sub&s;cribed by him&s;elf, given in to the Parliament 1661, therein endeavours to extenuat his Guilt in joyning with the U&s;urper <HI>Crom|well,</HI> and going with him to <HI>Worce&s;ter,</HI> pretending it was becau&s;e he was out of the Protection of Law, which Words can no otherways be under&s;tood than of the Decreet and Sentence of Forfeiture pronounced again&s;t him in <HI>anno</HI> 1651, neither does he in his An&s;wers deny that he was Forfeited in <HI>anno</HI> 1651, which is a clear demon&s;tration of the verity and truth of the fore&s;aid Decreet. 3^o. Where|as it is pretended, that there is no Warrant upon Record of the &s;aid Decreet. It is An&s;wered, That it is notour and univer&s;ally known, that the Warrants of that year, and of &s;everal other years of the Regi&s;ters, were lo&s;t coming down from <HI>London</HI> in <HI>anno</HI> 1660, and that Extracts furth of the Regi&s;ters make as much Faith as if the Warrants thereof were yet extant, the Lords of Se&s;&s;ion always &s;u&s;taining &s;uch Extracts out of the Regi&s;ters of the&s;e years, and re|fu&s;ing to grant Certifications again&s;t any Writs that are Regi&s;trat the&s;e years&punc; becau&s;e the Warrants thereof were lo&s;t in manner fore&s;aid; and if this Prepara|tive &s;hould be &s;u&s;tained or be encouraged to reduce Decreets or Acts of Parlia|ment, which are Corroborat by other publick Acts of &s;ub&s;equent Parliaments, relative thereto, upon Pretences that the Minuts or Warrants thereof are not extant, then the mo&s;t part of His Maje&s;ties Prerogatives a&s;&s;erted by the Acts of Parliament, and all Decreets of Forfeitures, whereupon Annexations to the to the Crown have followed, or Donations to the Liedges may be all called in que&s;tion and redargued upon the &s;ame pretences; and therefore the fore&s;aid Decreet of Forfeiture in <HI>anno</HI> 1651 being unque&s;tionably a&s;tructed as to the
<PB N="9" REF="6" MS="y">
verity thereof by the Parliament 1661, their homologating the &s;amine in put|ting the Sentence of Death to execution again&s;t <HI>Govan</HI> by vertue thereof, and by their ratifying the &s;amine in &s;o far as concerns <HI>Swinton,</HI> and acknowledged likewi&s;e by <HI>Swinton</HI> in his An&s;wers, the &s;ame cannot now be redargued upon the pretence of the want of the Records which were lo&s;t in manner fore&s;aid.</P>
<P>To the &s;econd rea&s;on of Reduction, bearing, That the King and Committee of E&s;tates for rea&s;ons and con&s;iderations moving them, did re&s;trict the Sen|tence of Puni&s;hment to the &s;aid <HI>John Hume</HI> (who was one of the per&s;ons for|feited in the &s;aid Decreet) to the Death, which takes off the effect of the Sentence as to <HI>Swinton</HI> and all the re&s;t, till it &s;hould be recon&s;idered by the King and Parliament. It is An&s;wered, That by this rea&s;on appears either the gro&s;s ignorance of the Libeller, or his di&s;ingenuity, if not both; for the Doom of Forfeiture is mo&s;t &s;olemnly pronounced by &s;ound of Trumpet, and tearing the Arms of tho&s;e forfeited, and by reiterat and ingeminat Clau&s;es forfeiting the Traitors as to Life, Heretage and Movables, which is expre&s;t and repeated as to <HI>John Swinton,</HI> and the exception is taxative, and relates on|ly as to <HI>John Hume,</HI> who by the former part of the Doom was forfeited as to Life, Lands, and Heretage al&s;o, and which is evident by the exception which re&s;tricts the Sentence as to <HI>John Hume,</HI> that his puni&s;hment &s;hould only be Death when apprehended, and the E&s;cheat of his Movables, and the Liferent of his Lands; and both <HI>Swinton</HI> and <HI>Govan</HI> do not &s;o much as pretend to, or found upon any re&s;triction of that Sentence, when they were brought before the Parliament 1661, which certainly they would not have neglected, if their Re&s;triction had been extended to them, and the Decreet and Sentence was con&s;idered by the Parliament 1661 as not containing any &s;uch re&s;triction in their favours, when they did not only ordain <HI>Govan</HI> to be execute by vertue thereof, which was accordingly done; but al&s;o when they did repell <HI>Swinton</HI>'s An&s;wers, as being no ways relevant, and did ratifie and approve the fore&s;aid Decreet, and forfeited him of new for the new additional and &s;upervenient Crimes whereof he was Indicted.</P>
<P>To the third rea&s;on of Reduction, bearing, That by the late Claim of Right in the Meeting of E&s;tates, It is Declared, 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 contrair to Law, and that the Crimes libelled again&s;t <HI>John Swinton</HI> were &s;uch, being both irrelevant and calumnious.</P>
<P>It is An&s;wered, 1^o. That if the Crimes of De&s;erting of the Kings Army by a Commi&s;&s;ionat Officer, and going in to the common Enemy, who at that time had invaded the Kingdom, and having their re&s;idence and dayly re&s;orting and conver&s;ing with the &s;aid publick Enemy be irrelevant to infer the Crime of Trea&s;on, then it is not known what can be found relevant to infer that Crime: For 1^o. by Law and the Cu&s;tom of Nations <HI>de re militari,</HI> who ever accepts a Military Commi&s;&s;ion or Charge, he cannot at his plea&s;ure di&s;mi&s;s or exauterat him&s;elf; and <HI>Swinton</HI> having acknowledged, and it being
<PB N="10" REF="7" MS="y">
proven again&s;t him that he received his Charge in the Army from the King and Committee of E&s;tates, he could not loo&s;e him&s;elf, or his <HI>cingulum &amp; &s;a|cramentum militare fine mi&s;&s;ione,</HI> and without his Maje&s;ty and Committee of E&s;tates their Licen&s;e and Warrant; and his pretended giving up of his Com|mi&s;&s;ion, (which in his An&s;wers to the Parliament 1661, was by intimating the &s;amine to the Chancellor, and to <HI>Gilbert Ker,</HI>) that they received the &s;amine off his hands, doth not excu&s;e, much le&s;s warrant his withdrawing from his Charge, whereupon the Law, tho he had proceeded no further, put this con&s;truction and character of De&s;ertion, and having gone to the Enemies Quarters <HI>&s;ine comm<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> tu,</HI> Law goes further to put the Character upon him of being <HI>transfuga &amp; ho&s;tis;</HI> and whatever may be his Pretences of his being ta|ken Pri&s;oner and carried to the Enemies Quarters, where he was &s;ome time de|tained Pri&s;oner, yet they are undoubtedly nothing el&s;e but Excu&s;es, to palliat his trea&s;onable de&s;igns again&s;t his King and Country; for if he had not had a de&s;ign to joyn with the Enemy, what could move him to that &s;ide of the Water and place of the Country where the Enemy was lying, his Family be|ing on the other &s;ide, and where he could not E&s;cape, being taken by the Enemy; but the true rea&s;on was, he was afraid that the Treaties and Corre|&s;pondence which he had with the Enemies before &s;hould be di&s;covered and he puni&s;hed for the &s;ame, and if he had been kept as a Pri&s;oner with the Enemy, is it po&s;&s;ible that they would have &s;uffered him to wear his Sword who had been in Arms again&s;t them, e&s;pecially when they had di&s;armed all the Gentle|men in the Country, and would &s;uffer none to wear Swords but tho&s;e who who were actually in their own Service. And whatever might be Alledged again&s;t &s;imple Conver&s;e, and being pre&s;ent with an Enemy, as not relevant to infer the Crime of Trea&s;on, yet this Conver&s;e being qualified as is Libel|led, <HI>viz.</HI> the de&s;erting of his Charge in the Army, his going to the place where the Rebels were, his re&s;iding and frequent re&s;orting with them, with his af|ter Carriage in going in with the U&s;urper to <HI>Worce&s;ter,</HI> which he acknowledges in his An&s;wers, that he did it at the de&s;ire of the U&s;urper; by the Con&s;truction of all Law, and by the Laws of this Kingdom is relevant to infer the Crime of Trea&s;on, and that of the highe&s;t nature. 2^o. The fore&s;aid Decreet being ordained by the Parliament to be given out to him to &s;ee the 15th of <HI>May</HI> 1661, and to give in his An&s;wers thereto again that day eight days, and ac|cordingly the &s;aid <HI>John Swinton</HI> having gotten up the &s;aid Decreet to &s;ee, he returned the &s;amine without any An&s;wers, which certainly he would not have done if he had been innocent of the&s;e Crimes libelled again&s;t him in the &s;aid Decreet, or if the Decreet of Forfeiture had not truly been pronounced again&s;t him: and &s;eing that the Decreet of Forfeiture 1651 is not only ratified by the Parliament 1661 as to <HI>John Swinton,</HI> but thereupon the &s;aid Lieutenant <HI>Govan</HI> was excecute as afore&s;aid, it is high and bold in&s;olence in <HI>John Swinton</HI> to have libelled &s;uch a rea&s;on of Reduction, by que&s;tioning the relevancy of
<PB N="11" REF="7" MS="y">
his Fathers Inditement, which in effect is of no le&s;s import than to accu&s;e both the Committee of E&s;tates 1651, and the Parliament 1661 of high and mani|fe&s;t Inju&s;tice, and upon the matter is an impugning of the Authority of the E&s;tates and Parliament, which by the Law is declared Trea&s;on.</P>
<P>To the fourth Rea&s;on of Reduction, <HI>viz.</HI> That the fore&s;aid Decreet is de|fective in the Probation, the Decreet neither conde&s;cending upon the Witne&s;|&s;es that were examined again&s;t him, nor upon what they deponed, but only that the King and Committee of E&s;tates have found the Libel relevant and &s;ufficiently proven, without expre&s;&s;ing what way the &s;ame was proven; So that the whole Probation of that Decreet, re&s;olves in the &s;imple a&s;&s;ertion of one Clerk, without any authentick Document or Probation in record, which in Law is no Probation at all.</P>
<P>It is an&s;wered. 1&s;t. That the Decreet is opponed, bearing expre&s;ly Sir <HI>Thomas Nicol&s;on's</HI> compearance, who was then Kings Advocat, before the King and Committee of E&s;tates; and de&s;iring that His Maje&s;ty and the &s;aid Committee would con&s;ider the relevancie of the &s;aid Libel and Inditement with the Depo&s;itions of divers famous Witne&s;&s;es, Received, Sworn, and examined thereanent: So that the Decreet conde&s;cends that the manner of Probation was by Witne&s;&s;es: And it is neither Practi&s;e nor Form, to conde&s;cend upon the Witne&s;&s;es names in any Decreets, but only to conde|&s;cend upon the manner of Probation, whether the &s;amine be by Witne&s;&s;es, Write, or Oath of Partie. 2ly. After that Sir <HI>Thomas Nicol&s;on</HI> had de&s;ir|ed the King and Committee of E&s;tates to con&s;ider the relevancie of the Libel, and the Witne&s;&s;es Depo&s;itions; the King and the &s;aid Committee did find the Libel as it was rai&s;ed again&s;t the &s;aid <HI>John Swinton. viz.</HI> That he being imployed as Leiutenant-Collonel, and having had the charge of one Troop of Hor&s;e, did de&s;ert the &s;aid Charge, and did go in to the Common-Enemy, who had invaded the Kingdom, and did oppre&s;s the &s;ame, and had frequent Re&s;idence with, and did re&s;ort to the &s;aid Common Enemy divers and &s;eve|ral times &s;ince in the Town of <HI>Edinburgh, Cannongate,</HI> and <HI>Lieth,</HI> relevant to infer the Pain and Puni&s;hment of High-Trea&s;on, and found the &s;amine pro|ven by the Depo&s;itions of divers famous Witne&s;&s;es, Sworn, Admitted, Ex|amined and Deponed, as was clearly known to His Maje&s;ty and the Commit|tee of E&s;tates: And therefore, the King and Committee did pronounce the &s;entence of Forfeiture again&s;t him; &s;o that it is mo&s;t callumnious to alledge, that the fore&s;aid Decreet does only bear, that the Libel again&s;t <HI>Swinton</HI> was found relevant and &s;ufficiently proven, without expre&s;&s;ing what way the fa|mine was proven, or that Witne&s;&s;es were adduced for proving thereof. And the former An&s;wer is repeated, that the Authority of a Parliament is not to be impugn'd, nor are Decreets of Forfeiture to be reduced upon any pretended Nullitie or informality of Proce&s;s, till fir&s;t the Crime be purged, and the Partie by a Remi&s;&s;ion be rehabilitat, as is clear by the 135 Act. Parliament 8 King <HI>James</HI> the 6. And as to that part of the fore&s;aid Rea&s;on of Reducti|on,
<PB N="12" REF="8" MS="y">
<HI>viz.</HI> That there is no authentick Document of the Probation upon re|cord, the &s;amine is &s;o fully an&s;wered before, that it is needle&s;s to repeat it here in this place.</P>
<P>To the fifth Rea&s;on of Reduction, <HI>viz.</HI> That the Duke of <HI>Lauderdale,</HI> after he had got an Gift of the &s;aid <HI>John Swinton</HI>'s Forfeiture upon the De|creet 1651, he did cau&s;e rai&s;e a new Indytment before the Parliament 1661, wherein was Libelled the &s;ame Crime, in the very &s;ame Words as it was Li|belled again&s;t him in <HI>anno</HI> 1651: And did de&s;ign him <HI>John Swinton</HI> of <HI>Swinton,</HI> which was an implicite pa&s;&s;ing from the &s;aid Decreet, and an evi|dent Demon&s;tration, that it was looked upon by the Duke as no Decreet, it being obvious and clear by Law and Common Sen&s;e; that a man that is once forfeited, cannot be again forfeited, &s;eing by the fir&s;t Forfeiture in the con|&s;truction of Law, he is no more in being, and can have no E&s;tate to forfeit.</P>
<P>It is an&s;wered, 1&s;t. That this Rea&s;on hath the &s;ame Truth in it as the re&s;t of the Rea&s;ons have, for the Duke of <HI>Lauderdale</HI>'s Gift to <HI>Swinton's</HI> Forfeiture, was not till <HI>May</HI> 1661; And by their own acknowledgment, the Lords of the Articles did upon the &s;eventh of <HI>February</HI> 1661, Ordain <HI>Swinton</HI>'s Indyt|ment to be given up to him to &s;ee and an&s;wer; And his appearance before the Parliament, was upon the 27 of the &s;ame Moneth, which was three moneths before the Duke of <HI>Lauderdale</HI> obtained the Gift of <HI>John Swintons</HI> Forfeiture. 2o. Altho <HI>Lauderdale</HI> had cau&s;ed rai&s;e the Indytment after his obtaining the Gift of Forfeiture, which is mo&s;t calumnious, and had therein de&s;igned him <HI>John Swinton</HI> of <HI>Swinton,</HI> and had Libelled the &s;ame Crimes again&s;t him, which were in the former Decreet 1651. Yet it cannot be inferred either from Law or Rea&s;on, that it was a pa&s;&s;ing from the former Decreet, for the de|&s;igning <HI>John Swinton</HI> of <HI>Swinton</HI> is of no moment, that being his ordinary De&s;ignation, and a wrong De&s;ignation could neither prejudge the King nor his Donatar, and there is nothing more ordinary, than to de&s;ign Per&s;ons by their former Titles or by their E&s;tates which they formerly had right to, whether they had lo&s;t the &s;amine by Forfeiture, or had &s;old or di&s;po&s;ed upon the &s;amine. 3ly. Altho the King's Advocat did narrate the &s;ame Crimes in the new Indytment before the Parliament 1661, for which he was former|ly forfeit in <HI>anno</HI> 1651, with &s;everal other new Crimes: As particularly his going in with the U&s;urper and Rebells to <HI>Worce&s;ter,</HI> and appearing there in Arms again&s;t his King and Prince, which was a Guilt and Crime of an higher Nature, than the de&s;erting of his Maje&s;ties Service; yet it did no ways loo&s;e nor enervate the former Sentence and Decreet, which was &s;o ju&s;tly pronounced again&s;t him in <HI>anno</HI> 1651. And the King's Advocat did not in&s;i&s;t again&s;t the &s;aid Decea&s;t <HI>John Swinton</HI> upon the Crimes mentioned in the former De|creet to forfeit him a new upon the &s;amine, but did in&s;i&s;t upon the Decreet 1651; as <HI>Probatio probata,</HI> and that the &s;aid Decreet might be ratified and ap|proven: and accordingly the Parliament did ratifie and approve the &s;amine.
<PB N="13" REF="8" MS="y">
As al&s;o did of new forfeit him for his being in Arms at <HI>Worce&s;ter</HI> again&s;t the King, which was the only new additional Article in&s;i&s;ted upon again&s;t him, &s;o that the fir&s;t Decreet was &s;o far from being pa&s;t from, that the &s;ame was ratified and approven, and the Libelling of the Crimes in the fir&s;t Decreet in the la&s;t Indytment, was to &s;hew a long <HI>&s;eries</HI> and continued Tract of the &s;aid <HI>John Swinton,</HI> his trea&s;onable Crimes, and not at all to pa&s;s from the for|mer Decreet: The King's Advocat expre&s;ly de&s;iring the &s;amine to be ratified by the Parliament. 4ly. Altho a forfeited Per&s;on in the con&s;truction of Law, be reputed <HI>nullus et civiliter mortuus,</HI> yet that is only <HI>in odium</HI> of him&s;elf, and cannot be made u&s;e of in prejudice of the King, or his Donatar, or any other Per&s;on; And altho a former Sentence might imped and debar him, from having <HI>Per&s;onam &s;tandi in judicio,</HI> yet it cannot hinder, why he may not be Accu&s;ed, Indyted and Sentenced for Crimes perpetrat be him after the fir&s;t Sentence: And if the la&s;t Crimes de&s;erves a greater Puni&s;hment than the fir&s;t Crimes, for which he was formerly Sentenced, the puni&s;hment which he was to undergo by the fir&s;t Sentence, may be changed and altered, and the puni&s;hment decerned in the la&s;t &s;entence, may be inflicted upon him: As for Example, if any Per&s;on were &s;entenced to die as a Murderer, and after his Sentence he &s;hould e&s;cape out of Pri&s;on, and commit the Crime of Trea&s;on, by the fir&s;t Sentence he is repute <HI>nullus et civiliter mortuus,</HI> and hath not <HI>Per&s;onam &s;tandi in Judicio:</HI> yet it cannot be controverted, but he may be Indyted of new again for Trea&s;on, and the puni&s;hment of Trea&s;on in|flicted upon him accordingly.</P>
<P>The fir&s;t Rea&s;on of Reduction again&s;t the Decreet of Forfaulture in <HI>anno</HI> 1661. Is in effect an An&s;wer to the &s;everal Articles of <HI>John Swinton's</HI> In|ditement, of which the Earl of Lawderdale does not think him&s;elf oblidged to take any notice but only in &s;o far, as that Rea&s;on eithe denys, or ex|tenuats the Crime, for which he was of new Forfaulted thereby, <HI>viz:</HI> his going along with the U&s;urper in Arms to <HI>Worcester</HI>) the remnant Branches of that Rea&s;on relating to the other Crimes whereof he was like|wi&s;e guilty; but were not in&s;i&s;ted upon again&s;t him, And therefore are wa|ved by the Earl; tho even as to the&s;e it is thought very &s;trange how any per&s;on can have the impudence to a&s;&s;ert that <HI>John Swinton's</HI> complying with an U&s;urper, taking Offices and Places from him, who had invaded his native Countrey with an Army of Sectaries, had murdered his ju&s;t and Lawful So|veraign, the mo&s;t eminent Per&s;ons, faithfulle&s;t Subjects, and be&s;t Patriots of the Kingdom, &s;itting in a Pretended Parliament, called by that U&s;urper, and Arch-Traitor, where all the&s;e horrible and dete&s;table proceedings were approven; renouncing and abjuring his Native Prince, and declaring his Native King, or any other of the Royal Family not capable to &s;ucceed in the Royal Government, were not trea&s;onable Crimes. Therefore to that part of the fir&s;t Rea&s;on, again&s;t the third Article of <HI>John Swinton's</HI> In|ditement,
<PB N="14" REF="9">
for which he was now Forfaulted by the Parliament 1661, to wit, his being in Arms at <HI>Worce&s;ter;</HI> and which part of the Rea&s;on bears, that it was denyed, as it was conceived; and that if it could be made ap|pear that he was at <HI>Worce&s;ter,</HI> he could have in&s;tructed, that he was there as a Pri&s;oner; 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> it was remitted by the <HI>Engli&s;h</HI> Indemnity.</P>
<P>It is An&s;wered, 1. That this is manife&s;tly redargued by the de|cea&s;t <HI>John Swinton</HI>'s an&s;wers Written and Sub&s;cribed with his own hand, given in to his Inditement in the Parliament 1661. Acknowledging, that he was at <HI>Worcester,</HI> and that he went there at the de&s;ire of the U&s;ur|per: But for his excu&s;e, he &s;ayes, the U&s;urper could have commanded him along with him as a Pri&s;oner; but acknowledges, that the U&s;urper u&s;ed not that as an Argument with him to per&s;wade him to go; and that was after he had met with what he then looked upon as hard mea&s;ure from the King and Countrey, being out of the Protection of Law, and that he went i<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">  no other Capacitie, but as a Traveler, having no other Arms than Travelers u&s;e; By which, 1^o. It is proven, that he was per&s;onally pre&s;ent at <HI>Worce&s;ter,</HI> and that he went there at the U&s;urpers earne&s;t intreaties and importunities; which &s;hew that there was great intimacie betwixt him and the U&s;urper. 2^o. That he hade conceived a prejudice again&s;t his King and his Countrey by the Sentence of Forfeiture pronounced again&s;t him in <HI>anno</HI> 1651. which he &s;tiles the hard mea&s;ure he met with, and his being out of the protection of the Law. 3^o. That he was there per&s;onally in Arms, &s;uch as a Traveler u&s;es to ride with, <HI>viz.</HI> Sword and Pi&s;tol, which are all the Arms could be carried by any &s;ingle Hor&s;e-man there; And altho he denys that he drew either Sword or Pi&s;tol, or did joyn with any Troop or Regiment; yet his being pre&s;ent with the Ene|mies in Arms, is a &s;ufficient demon&s;tration of his joyning with them, again&s;t his King and Countrey, and is <HI>per &s;e</HI> relevant in Law, to infer the Crime of high Trea&s;on, it being very difficult to prove a mans particular Actings in an Army, who had no remarkable Charge, and his &s;erving the U&s;urper at that time, is &s;ufficiently cleared by the rewards that the U&s;urper gave him afterwards: And the good Services which are pretended that <HI>Swinton</HI> did to his Countrey-men at that time, is an evident demon&s;tration of his intimacy and intere&s;t with the U&s;urper; and which could not be done by a pri&s;oner.</P>
<P N="2">2^o. As to that Alledgance, that the Crime being committed in <HI>England,</HI> it was remitted by the <HI>Engli&s;h</HI> Indemnity. It is An&s;wered, that the <HI>Engli&s;h</HI> Act of Indemnity did extend no further than to the Kings <HI>Engli&s;h</HI> Subjects, and not to any Subjects who were Scots-men; for as no Law made by the Parliament of <HI>England</HI> could hinder the Parliament of <HI>Scotland</HI> to pro|ceed again&s;t Traitors and Rebels, who were <HI>Scots-men:</HI> &s;o no Indemnity pa&s;t in the <HI>Engli&s;h</HI> Parliament could Indemnity a <HI>Scots-man's</HI> Crimes, or could hinder the Parliament of <HI>Scotland</HI> from proceeding again&s;t them; albeit they had
<PB N="15" REF="9" MS="y">
been particularly Indemnified by the Parliament of <HI>England.</HI> And all that is now repre&s;ented for <HI>John Swinton,</HI> in this rea&s;on of Reduction being intirely un|der the Parliaments con&s;ideration, at the time and by them found relevant and proven to infer the Crime of trea&s;on; And what is now alledged being then proponed and repelled by the Parliament, cannot now be drawn in que|&s;tion, And as to which the former An&s;wers are repeited.</P>
<P>To the la&s;t part of the fir&s;t Rea&s;on of Reduction in&s;i&s;ted upon, again&s;t the &s;aid Decreet 1661. <HI>viz.</HI> That the Decreet is lame and defective in its probation? albeit it bears, to proceed upon <HI>John Swintons</HI> Judicial Confe&s;|&s;ion, yet there is no &s;uch Confe&s;&s;ion extant in the Records of Parliament, o|ther than what is contained in his Written defence, which are &s;o qualified, that it could never be a ground of Forfeiture.</P>
<P>It is An&s;wered, 1^o. That a Judicial Confe&s;&s;ion emitted before &s;o High and Supream a Court as a Parliament, makes full Faith without being Sub|&s;cribed; and the a&s;&s;ertion of the Parliament, and their Act thereupon, is a full and &s;ufficient Probation: And altho a Judicial Confe&s;&s;ion emitted before an Inferior Judge, &s;uch as Commi&s;&s;ar or Sheriff, does not make Faith, unle&s;s it be Signed by the Party; yet a Judicial Confe&s;&s;ion emitted before the Lords of Se&s;&s;ion, which is a Supream Court, and &s;o marked and Minuted by the Clerk, does make as great Faith, as if it were Sub&s;cribed and Signed by the Par|ty: And it cannot be denyed that <HI>John Swinton</HI> compeared before the Parlia|ment, and <HI>viva voce</HI> confe&s;&s;ed the&s;e horrid and dete&s;table Crimes of Trea&s;on and Rebellion, that he was guilty of, and particularly of his being in Arms at <HI>Worce&s;ter</HI> with the U&s;urper, again&s;t his native King, for which he did blame his Ambition in his younger years, which prompted him to the&s;e Trea&s;onable Acts, and as a Remor&s;e and Abhorrence of them, he &s;aid, if they were to do, he would rather with the one hand &s;trike off the other, than be guilty of them; upon which Confe&s;&s;ion, the King's Advocat took In&s;truments. 2^o. He did not only confe&s;s the Crimes Libelled and in&s;i&s;ted on <HI>viva voce,</HI> but in his An&s;wers, written and &s;ub&s;cribed by him&s;elf, given in at the &s;ame time to the Parliament, he did acknowledge the &s;ame; and al|tho in his An&s;wers he did endeavour to excu&s;e and qualifie the&s;e Crimes, to procure the Commi&s;eration of the Parliament, that his Life might be &s;pared, yet the Parliament did mo&s;t ju&s;tly Repel his An&s;wers, and proceeded, and gave Sentence of Forfeiture again&s;t him, and the excu&s;es and qualifications adjected, are &s;o far from being extenuations of his Crimes, that they rather do aggravat the &s;ame, being In&s;inuations of the great favour, intere&s;t and intimacy he had with the U&s;urper as is evident by the An&s;wers them&s;elves, hereto &s;ubjoyned; So that the Decreet of Forfeiture, proceeding not on|ly upon a verbal Confe&s;&s;ion emitted <HI>viva voce;</HI> But al&s;o upon a Written Con|fe&s;&s;ion, Sub&s;cribed by <HI>John Swinton</HI> him&s;elf, the &s;ame cannot now be Invali|ditate,
<PB N="16" REF="10" MS="y">
or drawn in que&s;tion, upon the pretence that it is lame and defective in its probation.</P>
<P>The &s;econd Rea&s;on again&s;t the Decreet of Forfeiture 1661. is, that the Minuts are Forged and Fal&s;e upon the pretended Grounds following, <HI>viz.</HI> That albeit there be a con&s;iderable time interveening betwixt the Minuts dated the 7 of <HI>February,</HI> 15 of <HI>May,</HI> and 12 of <HI>July</HI> 1661. Yet it appears by ocular in&s;pection, that they are all written at one and the &s;ame time, and with the &s;ame Pen and Ink, and being compared with the Minuts upon the end of the Inditement, Sub&s;cribed by <HI>Glencairn,</HI> which are the true Mi|nuts, they are much more recent and fre&s;h. 2^o. All the three Minuts, which are on the Margine of the Inditement, being Signatures of the Procedure of the Parliament <HI>in pleno con&s;e&s;&s;u,</HI> the fir&s;t thereof which is on the 7 of <HI>Fe|bruary,</HI> 1661. bears the giving in of the &s;aid Inditement again&s;t the &s;aid <HI>John Swinton,</HI> then Pannel, with the former Decreet in <HI>anno</HI> 1651. and craving that the &s;aid Decreet might be Ratified, and the new Inditement found Re|levant, and admitted to Probation: The King and the E&s;tates of Parlia|ment are &s;aid to ordain <HI>before An&s;wer,</HI> the new Inditement to be given up to <HI>John Swinton</HI> to &s;ee and an&s;wer; and yet it is evident by the Records of Parliament, that the Articles &s;at the 7th of <HI>February,</HI> and not the Parliament, and Ordained the &s;ame thing that the Parliament Ordained, to wit, The giving up of the Inditement to <HI>John Swinton;</HI> and by <HI>Robert Hamilton's</HI> Dia|ry, one of the Senators of the Colledge of Ju&s;tice, and then one of the Clerks of the Parliament: It is evident, that upon the 27 of <HI>February, John Swin|ton</HI> having formerly received his Inditement, was brought that day to the Bar, and after his Dittay was read, he was appointed that day 15 days, to give in his Legal Defences; (neither was that Term <HI>before An&s;wer</HI>) either the &s;tile of Parliament, or any Court at that time, being introduced &s;ince, nor was it at all in this ca&s;e intelligible, it being impo&s;&s;ible that an Indite|ment could be con&s;idered before it was given up, and &s;een by the party, by which it is clear, as is pretended, that the for&s;aids Minuts are forged. 3o. The &s;econd of the &s;aids Minuts being dated the 15 of <HI>May</HI> 1661. appears, as is pretended to be fal&s;e by ocular in&s;pection, and to have been made up after the year 1670. upon the&s;e Grounds, <HI>First,</HI> When the Clerk that writes the Minuts, thinking upon the year, wherein the &s;aids Minuts were made up by him, which by the Earl of <HI>Crafurd's</HI> Letter appears to have been in the year 1674. he did fir&s;t write the figure 7, and correcting it afterwards, he mends it thus, 6 <HI>Secondly,</HI> By this Minut, dated the 15 of <HI>May, John Swin|ton</HI> is made compearing, 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 Battle, whereas there was no &s;uch Judicial Confe&s;&s;ion made, and if it had been made, he had certainly Sub&s;cribed it; and <HI>Robert Hamilton's</HI> Diary bears only, That the &s;aid 15 of <HI>May John Swinton</HI>'s Dittay, with his An&s;wers, were read, and
<PB N="17" REF="10" MS="y">
he al&s;o heard &s;peak verbally for him&s;elf, and that the Lord Advocat oppon|ed the Dittay, and produced the former Decreet of Forfeiture again&s;t him, which <HI>de facto</HI> was never produced till that time, though the fir&s;t Minut fal&s;e|ly bear it to be produced upon the 7 of <HI>February;</HI> and which former Decreet the Pannel de&s;iring to &s;ee, the Parliament a&s;&s;igned him <HI>Friday</HI> come eight days, to &s;ay what he could &s;ay, which la&s;t part of the fore&s;aid Minut, does al&s;o bear, That the Pannel was ordained to &s;ee the fore&s;aid Sentence of For|feiture, and to an&s;wer <HI>Friday</HI> come eight dayes, but with this difference, that the Minut bears upon the Pannel's de&s;iring to &s;ee the &s;aid Decreet, it was then given up to him, whereas it is evident by <HI>Alexander Reid</HI> his hand, who was Servant to the Lord Advocat, written on the back of the Copy of the &s;aid Decreet, delivered to <HI>Swinton,</HI> that it was not given up to <HI>Swinton</HI> to &s;ee till the 17 of <HI>May;</HI> by which it is evident, that <HI>Swinton</HI> did not make a|ny judicial Confe&s;&s;ion that day, there being no ve&s;tige upon Record, either &s;ub&s;cribed by him or the Pre&s;ident; and it were ab&s;urd, if he had emitted any judicial Confe&s;&s;ion, that any further diet &s;hould be a&s;&s;igned to him to an&s;wer, &s;ince <HI>confe&s;&s;us pro condemnato habetur.</HI></P>
<P N="3">3^o. This Minut of the 15 of <HI>May</HI> 1661. Ordains <HI>Swinton</HI> to &s;ee and an|&s;wer, as &s;aid is&punc; again&s;t the 24 of <HI>May,</HI> and yet neither doth the Decreet bear, That <HI>Swinton</HI> was again called, nor any thing at all of this matter of Fact, that he was ordained to &s;ee the former Decreet, upon the 15 of <HI>May,</HI> and to an&s;wer thereunto again&s;t the 24. which tho&s;e that framed the De|creet did indu&s;triou&s;ly omit, as for&s;eeing the in&s;erting thereof would have inferred a Nullity again&s;t it, nor was he ever called before the Parliament, that day, or any time thereafter.</P>
<P N="4">4^o. As to the third and la&s;t Minut, which is upon the 12 of <HI>July</HI> 1661. It is alledged, That the fal&s;hood thereof is manife&s;t, in &s;o far as 1^o. It makes <HI>Swinton</HI> compearing that day as a Pannel, whereas it is certain he did not compear that day, nor at any time after the 15 of <HI>May.</HI> 2^o. By the &s;aid Minut not only the fore&s;aid pretended Decreet of the Committee of E&s;tates 1651. is Ratified, but <HI>Swinton</HI> is declared of new, guilty of the Crime of Trea&s;on, upon his judicial Confe&s;&s;ion; and yet there is no &s;uch judicial Confe&s;&s;ion extant, but what was &s;o qualified as cleared him. 3. It makes the Parlia|ment Ratifie the &s;aid pretended Decreet, without his being heard upon his Defences again&s;t the &s;ame, tho a day was a&s;&s;igned to him for that effect. 4^o. The Minut has none of the Solemnities of a Sentence of Forfeiture, not bear|ing Read, Voted, Touched with the Scepter, or any Warrant for publica|tion by &s;ound of Trumpet, or Tearing of Arms, and the Signatures of Sen|tences, and Dooms of Forfeiture, after the Voting and Touching thereof, are alwayes written on a paper a part, di&s;tinct from the Proce&s;s, and &s;igned by the Chancellor, or Pre&s;ident of Parliament, which was not ob&s;erved in this ca&s;e.</P>
<P N="5"><PB N="18" REF="11" MS="y">
5^o. All the &s;aids three Minuts are &s;ub&s;cribed by the late Earl of <HI>Crafurd</HI> as Pre&s;ident of the Parliament 1661. with the&s;e Letters adjected to his Sub&s;crip|tion, <HI>I. P. D. P.</HI> as if they had been Sub&s;cribed by him in that Parliament <HI>in prae&s;entia Dominorum Parliamenti,</HI> whereas the Earl's Letter, which a little be|fore his death, he wrote to the decea&s;t <HI>John Swinton,</HI> in the year 1674. di&s;|covers not only that they were not &s;igned by him till then, which was 13 years after, but that they were not &s;o much as written.</P>
<P N="6">6^o. After the &s;aids Minutes were made up by <HI>Hay&s;toun</HI> and <HI>Craufurd</HI>'s Sub&s;cription impetrat thereto, Sir <HI>Archibald Primro&s;e</HI> the Regi&s;ter, thought him&s;elf not <HI>in Tuto</HI> to give any Extract thereof under h<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> s hand to the Duke of <HI>Lauderdale,</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 to give any &s;uch Ex|tract, which clearly &s;hews, the fal&s;ne&s;s of the&s;e Minutes; And altho he was con&s;cious to him&s;elf of the &s;ame, yet to gratifie the Duke of <HI>Lauderdale,</HI> he prevailed with the Earl of <HI>Craufurd</HI> to &s;ign them, &s;o many Years after the Parliament 1661.</P>
<P>The Rea&s;ons of Fal&s;hood again&s;t the Minutes being fully &s;et down: It is An&s;wered thereto in order as follows, <HI>viz.</HI> To the fir&s;t Rea&s;on again&s;t the Minutes, that albeit the &s;amine were written at one and the &s;ame time, yet it imports not, it being notourly known to all Per&s;ons, who are ver&s;ant in Bu&s;&s;ine&s;s, that Clerks do ordinarly write their fir&s;t Minutes upon Papers a part, or Scrolls, &amp; thereafter, or when the affair in Debate is brought to a clo&s;e, and Decreet pronounced thereintil, they are in U&s;e to tran&s;cribe the Minutes, and &s;ubjoyn the Interloquitor or Sentence: And it is no Argument, that they appear much more Fre&s;h and Recent than the Minutes Signed by the Earl of <HI>Glencairn</HI> upon the end of the Indytment, to infer from thence, that they were made up long after, for the goodne&s;s or badne&s;s of Ink will make Writ &s;eem old or new, and &s;ome Ink will retain its Colour fre&s;h for 20, 30, or 40 Years, Whereas other Ink will lo&s;e its Colour, and appear old in three or four Moneths. But 2ly. The Allegiance is mo&s;t Calumnious, that the Minutes do appear to be Recent, or of the &s;ame Ink; and altho it did, yet it is Notour, that the writings of a Clerk, who hath one fixed and habitual Character, will look &s;o like to his other Writings, though at a different time, that a Man will not be able to di&s;tingui&s;h the difference; But e&s;pecially, where they u&s;ed to be &s;erved and furni&s;hed with one kind of Ink from one place; which Clerks, who have much Writing, are ordinarly in u&s;e to do, whereas the Writings of other Per&s;ons not u&s;ed nor habituat with Writing, and with the &s;ame Ink are ea&s;ily di&s;tingui&s;hable.</P>
<P>To the 2d Rea&s;on of Fal&s;hood again&s;t the fir&s;t Minute, It is An&s;wered, That although the Clerk of the Proce&s;s &s;hould have mi&s;taken, and placed the Fi|gure 7 for 27. yet that cannot infer any nullity in the Minute; for &s;uppo&s;e the day had been left blank, the month and year being conde&s;cended upon,
<PB N="19" REF="11" MS="y">
doth not render a Minut or any other Paper null; &s;o neither can a Clerk's mi&s;taking, or in&s;erting one day for another, &s;eing the matter of Fact cannot be controverted, <HI>viz.</HI> That <HI>Swinton</HI> did compear before the Parliament upon the 27th of <HI>February,</HI> it being acknowledged by them&s;elves, and is al&s;o evi|dent by <HI>Robert Hamilton</HI>'s Diary; and it is a pitiful Argument to conclude from this mi&s;take, that the Minutes were forged and made up by <HI>Hay&s;toun;</HI> for it <HI>Hay&s;toun</HI> or Sir <HI>Archibald Primro&s;e</HI> had been guilty of forging the Minuts, they would have been much more exact, and would not have given them a Date, which might have been &s;o ea&s;ily Canvelled by the Date of the Mi|nuts Sub&s;cribed by the Earl of <HI>Glencairn</HI> upon the end of the Inditement, be|ing of the &s;ame Date of the Minut in que&s;tion, which <HI>Hay&s;toun</HI> could not but know, he being Clerk to the Proce&s;s, and having the Grounds and Warrands of the &s;ame in his cu&s;tody, which certainly he would have peru&s;ed very exactly, if he had de&s;igned a Forgery of the Minuts, and could not fall into &s;o gro&s;s a mi&s;take; and it is notour to any, who are ver&s;ant in bu&s;ine&s;s, that Clerks, e&s;pecially in the throng of bu&s;ine&s;s, &s;uch as was in the Parliament 1661. do fall in mi&s;takes of this nature: So that in all this pretended For|gery, there being nothing but a quibling on the Date of a Minute, where-through the inadvertence of a Clerk, in the throng of bu&s;ine&s;s, and without any de&s;ign, the Figure 7 is &s;et down in place of 27, the &s;amine can never a|ri&s;e to any matter or moment, thereby to redargue a true matter of Fact, <HI>viz.</HI> That <HI>John Swinton</HI> did compear before the Parliament, the 27th of <HI>February,</HI> and that his Inditement was read, and that he gave in An&s;wers thereto, ac|knowledging the Crime; far le&s;s to overturn a &s;olemn Decreet of Parliament. 2^o. As to the Critici&s;m upon the words, <HI>Before An&s;wer,</HI> that it was not the Style of Courts at that time. It is An&s;wered, That it was introduced in Courts long before that time, as may be ob&s;erved in <HI>Durie's</HI> Deci&s;ions; and it was very proper and pertinent to in&s;ert it in the Interloquitor of Parliament, in regard that <HI>John Swinton</HI> having formerly gotten out his Inditement, and ap|pointed to An&s;wer the &s;amine again&s;t the 26th of <HI>February:</HI> And having com|peared before the Parliament upon the 27th, and the Advocat having in&s;i&s;t|ed again&s;t him, and craved, that not only the former Decreet of Forfeiture might be Ratified, but al&s;o that the new Inditement might be found relevant: The Parliament being re&s;olved to indulge the Pannel a further day, did not|with&s;tanding of the Advocats de&s;ire, ordain <HI>Swinton</HI> before An&s;wer, to &s;ee the new Inditement, and give his Legal Defences, which was both proper and pertinent. And as to the la&s;t part of that Rea&s;on, that the&s;e words, <HI>Be|fore An&s;wer,</HI> were not intelligible in that ca&s;e, it being impo&s;&s;ible that an In|ditement could be con&s;idered before it was given up and &s;een by the Party. It is An&s;wered, that the &s;ame is very intelligible, if <HI>John Svvinton</HI> will take no|tice that the Parliament refu&s;ed upon the Advocats de&s;ire to Ratifie the for|mer Decreet of Forfeiture, which very ju&s;tly they might have done, with|out
<PB N="20" REF="12" MS="y">
allowing him a further time, and might have ordained that Sentence to be put to execution again&s;t him, as they did to <HI>Govan:</HI> And therefore the words <HI>(Before An&s;vver)</HI> ordaining him to give in his Legal Defences, before they would Ratifie the former Sentence, or con&s;ider the relevancy of the new Inditement, were mo&s;t properly adjected, and are very intelligible to any ingenuous or di&s;-intere&s;&s;ed per&s;on.</P>
<P>To the third Rea&s;on of <HI>Fal&s;hood,</HI> being again&s;t the &s;econd Minut, dated the 15th of <HI>May,</HI> 1661. and fir&s;t Branch thereof: It is An&s;wered, 1^o. It doth not appear ever to have been the 7th Figure; and there is only a &s;troak of a Pen drawn through the 6th Figure, which might have been done through inadvertency, or a mi&s;take of the Clerk at the time: And if this pretended Vitiation were compared with the Margent of <HI>Govan</HI>'s Libel, where palpably the Date is Vitiat likewi&s;e, through mi&s;take and inadvertancy of the Clerks, that it cannot be determined whether the Date be 13, 18, or 19. Any indif|ferent per&s;on will ea&s;ily conclude this pretended Vitiation not to be upon de|&s;ign, or a Forgery: And in effect it is &s;o improbable, pitiful, and incon&s;i&s;t|ent a pretence, that it de&s;erves not the lea&s;t An&s;wer; and it is not at all Vi|tiat, as it is &s;et down in <HI>John Svvinton</HI>'s Paper.</P>
<P>To the &s;econd Branch of that Rea&s;on concerning <HI>John Svvinton</HI>'s Judicial Confe&s;&s;ion, it is &s;o fully An&s;wered in the An&s;wer to the la&s;t part of the fir&s;t Rea&s;on of Reduction, that it is needle&s;s here to repeat it. But as to that part of it founded upon <HI>Robert Hamilton</HI>'s Diary, which <HI>John Svvinton</HI> makes u&s;e of to Canvel the Faith of the former Minut, bearing, That the fir&s;t Decreet of Forfeiture again&s;t <HI>Svvinton</HI> in <HI>anno</HI> 1651. was produced, and that <HI>Robert Hamilton</HI>'s Diary doth not make mention of any Judicial Confe&s;&s;ion emitted by <HI>John Swinton</HI> that day. It is An&s;wered, That <HI>Robert Hamilton</HI> not be|ing Clerk to the Proce&s;s, was not obliged to mark &s;o fully all that was done, as <HI>Hay&s;toun</HI> who was Clerk thereto: And by comparing <HI>Robert Hamilton</HI>'s Diary with the Journals of Parliament, it will be clear and evident, that he did only Minut the&s;e things that were mo&s;t remarkable in every Affair that came in before the Parliament, and did not Minut &s;o fully as tho&s;e who were Clerks to every particular Proce&s;s. And <HI>Swinton</HI> having given in his De|fences and An&s;wers to the new Inditement: And likewi&s;e having Judicially acknowledged his Crime; that which was mo&s;t remarkable that day, was <HI>Swinton</HI>'s compearing, giving in his Defences, and &s;peaking verbally for him|&s;elf; in which words, &s;peaking verbally for him&s;elf taken notice of by <HI>Robert Hamilton</HI>'s Diary, is certainly included his Judicial Confe&s;&s;ion, mentioned and taken notice of by <HI>Haystoun</HI> in his Minut: And it is of no weight, that the Minut bears the Decreet of Forfeiture to be given up to him that day; and yet by the Note written by <HI>Alexander Reid</HI>'s Hand, upon the back of the Co|py of the Decreet delivered to <HI>John Swinton,</HI> it appears not to have been gi|ven up till the 17th of <HI>May</HI> thereafter; For the Clerk might very well have
<PB N="21" REF="12" MS="y">
marked, that the fore&s;aid Decreet was given up to him, it being &s;o appointed by the Parliament. And although it had not been given up till the 17th day thereafter, it cannot at all derogate from the Faith of the Minuts, and there mu&s;t be more Credit and Faith given to the Minuts of a Clerk, than to any Notes of the Advocats Servant upon the back of the Copy of the Decreet de|livered to <HI>Swinton,</HI> which was no part of the Proce&s;s kept by the Clerk, and might have been put on by the Advocats Servants mi&s;take or inadvertancy, or might have been a double of the Decreet given to <HI>John Swinton</HI> thereaf|ter, when the Principal Decreet was gotten back from him. And as to that pretence, that it was ab&s;urd to a&s;&s;ign him a further Dyet after a Judicial Con|fe&s;&s;ion, &s;ince in Law <HI>Confe&s;sus pro condemnato habetur.</HI> It is An&s;wered, That it was very con&s;i&s;tent with the Parliaments Procedure in that Proce&s;s, becau&s;e <HI>John Swinton</HI> not only being Indyted upon new Crimes committed by him in <HI>anno</HI> 1651. But likewi&s;e the Decreet in <HI>anno</HI> 1651. being to be Ratified and Approven, his Judicial Confe&s;&s;ion being only in relation to the&s;e new and &s;upervenient Crimes, the Parliament might very well a&s;&s;ign him another day, as they did upon his de&s;ire, to give in his An&s;wers to the Decreet 1651.</P>
<P>To the third Branch of that Rea&s;on, It is An&s;wered, that there was no nece&s;&s;ity to in&s;ert in the la&s;t Decreet of Forfeiture, that he had gotten up the former Decreet to &s;ee, unle&s;s that <HI>Swinton</HI> had returned the &s;amine with par|ticular An&s;wers; and although it had been in&s;ert, it would infer no nullity in the Decreet, although <HI>John Svvinton</HI> never appeared before the Parliament thereafter; for having neglected to give in his An&s;wers, the Parliament might, and did very warrantably proceed both to Forfeit him upon the new Indite|ment, and to Ratifie and Approve the fir&s;t Decreet.</P>
<P>To the fourth Rea&s;on of Reduction being again&s;t the third and la&s;t Mi|nute. It is an&s;wered, 1^o. That the Minut is opponed, bearing no &s;uch thing as <HI>Swinton's</HI> compearance that day, but it doth only bear, that the Parliament having con&s;idered that member of the new Indytment of Trea&s;on <HI>pro tempore</HI> in&s;i&s;ted on with the Pannals an&s;wer in Write, and <HI>Viva Voce,</HI> and judicial confe&s;&s;ion, de&s;ire of the Lord Advocat with the former Decreet of Forfeiture, they repelled the &s;aids An&s;wers given in in Write, and <HI>viva voce</HI> as no ways relevant, and found the formentioned Article and Member of the fore&s;aid new Indytment in&s;i&s;ted upon relevant, and proven without mak|ing any mention of the Pannal's Per&s;onal Compearance. And as to that part of the Rea&s;on, denying any judicial Confe&s;&s;ion to be emitted by <HI>Swinton,</HI> or extant in Proce&s;s, the former An&s;wers are opponed. 2^o. Altho there was a day a&s;&s;igned to the &s;aid <HI>John Swinton,</HI> to give in his An&s;wers again&s;t the fir&s;t Decreet, yet there was no nece&s;&s;ity to call him before the Parliament thereafter; unle&s;s he had given in his An&s;wers, which he not having done as he was appointed and ordained, the Parliament did very ju&s;tly proceed to pronounce a Sentence of Doom and Forfeiture again&s;t him upon the new
<PB N="22" REF="13" MS="y">
Indytment, and to ratifie the former Decreet of Forfeiture in <HI>anno</HI> 1651. And the decea&s;'d <HI>John Swinton,</HI> returning the &s;aid Decreet without any An|&s;wer, was a clear and convincing Argument, that he intended to make none again&s;t the &s;aid Decreet, being con&s;cious to him&s;elf, that it was ju&s;tly pro|nounced again&s;t him: So that there was no nece&s;&s;ity to call him when the Parliament advi&s;ed his new Indytment, and pronounced Sentence upon the &s;amine, e&s;pecially con&s;idering that by the quality adjected to the &s;entence, he was recommended by the Parliament to His Maje&s;ty as to his Life. 3^o. As to the la&s;t part of that Rea&s;on anent the want of the Solemnities, as Read, Voted, Touched, Warrand for publication by &s;ound of Trumpet, and tearing of Arms; which certainly would not have been omitted, as is pretended, if any Sentence of Forfeiture had been truly pa&s;t. It is An&s;wered, 1^o. That it is admired with what Confidence it can be a&s;&s;erted, that there was no Decreet of Forfeiture pa&s;t in that Parliament again&s;t <HI>John Swinton</HI> in the Year 1661, but that it was made up in the Year 1670, or thereafter, &s;eing among&s;t the li&s;t of the Im|printed Acts of the fir&s;t Se&s;&s;ion of the Parliament 1661, there is In&s;ert, not only a Decreet of Forfeiture again&s;t <HI>John Swinton,</HI> but al&s;o a Ratification of <HI>John Swintons</HI> Forfeiture, in Favours of the late Duke of <HI>Lauderdale;</HI> And in the Act of indemnity, which was pa&s;t in the &s;econd Se&s;&s;ion of that &s;ame Par|liament, the Decreet of Forfeiture again&s;t <HI>John Swinton,</HI> is particularly ex|cepted, and by the Decreet of Parliament in <HI>anno</HI> 1661, <HI>John Swinton</HI> being recommended to the King as to his Life, he was ordained to be kept Pri&s;oner in the Ca&s;tle of <HI>Edinburgh,</HI> till his Maje&s;ties plea&s;ure was fully known: So in pro&s;ecution of that part of the Decreet upon the &s;ixteen of <HI>July</HI> 1661, with|in four days after the Decreet, the Commi&s;&s;ioner &s;ub&s;cribes a Warrant to the Magi&s;trats of <HI>Edinburgh,</HI> to deliver the Per&s;on of <HI>John Swinton</HI> to the Captain of the Ca&s;tle of <HI>Edinburgh,</HI> or his Lieutenant, and whereupon <HI>Mercer</HI> Lieutenant of the Ca&s;tle gave his Receipt, which will appear by the Regi&s;ter of the Tolbooth, and Warrants thereof; all which being joyned with the Duke of <HI>Lauderdale</HI>'s Po&s;&s;e&s;&s;ion of <HI>Swinton's</HI> E&s;tate, conform to the fore&s;aid Decreet of Forfeiture, do fully Adminiculat and a&s;truct the Verity of the &s;aid Doom and Sentence of Forfeiture. 2^o. As to the want of the Solemnities, it is An&s;wered, that it is known that Sir <HI>Archibald Primro&s;e</HI> was a man &s;o Exact and Cautious, that he would not have put a Decreet and Sentence of Parliament in the Li&s;t of the imprinted Acts, nor would he have given an Extract thereof under his hand had not the fore&s;aid Sentence been both Voted and Read; the hazard thereof, and of forging a Decreet of Parliament, being no le&s;s, than his Life and Fortune. And it is evident, that the Parliament having con&s;idered the Proce&s;s, &amp; having repelled the De|fences, which were formerly given in, both in Write and <HI>Viva Voce:</HI> And ha|ving likewi&s;e con&s;idered his Confe&s;&s;ion, formerly mentioned, they behoved to Read and Vote the &s;amine, the&s;e being <HI>&s;olemnia &s;ententiae latae quae &s;emper et
<PB N="23" REF="13" MS="y">
nece&s;sario ine&s;se pre&s;umuntur, etiam&s;i non expre&s;sa.</HI> And as to the tearing of his Arms and &s;ounding of the Trumpet, there was no nece&s;&s;ity thereof, that So|lemnitie having been performed in the fir&s;t Decreet of Forfeiture in <HI>anno</HI> 1651. And the Touching of Decreets of Forfeitures, is no ways nece&s;&s;ar, that being only a Solemnitie adhibit to publick Laws, to &s;ignifie the Roy|al A&s;&s;ent, but not at all to Sentences and Decreets betwixt or again&s;t privat Per&s;ons, except by the Forfeiture, the Lands of the forfeit Per&s;on be annexed to the Crown: And if any &s;uch Solemnity was u&s;ed in any other Decreets of Forfeiture, it was <HI>ex &s;uper-abundanti,</HI> there being no &s;uch thing required by our Law.</P>
<P>To the fifth Rea&s;on of Reduction, being again&s;t the whole Minutes, It is An|&s;wered. 1^o. That <HI>esto</HI> it were true, that the Earl of <HI>Crafurd</HI> did &s;ign the&s;e Mi|nutes at the time conde&s;cended upon in his Letter, yet he does not at all there|in que&s;tion the Truth of the &s;aids Minutes, and of the Sentence of Forfeiture, and <HI>John Swinton's</HI> making u&s;e of this Letter, to Canvel the Truth of the Mi|nutes, is the greate&s;t Imputation and Reflection upon the Honour, Integrity, and Ingenuity of the Decea&s;'d Earl of <HI>Crafurd:</HI> For can any Man in Sen&s;e or Rea&s;on think, that the Earl of <HI>Crafurd</HI> who was a Man of &s;uch Honour and notour Ingenuity, to have had acce&s;&s;ion to the Signing and Forg|ing of Minutes, which were fal&s;e: And the Earl of <HI>Crafurd</HI> being Pre&s;i|dent when the Sentence was pa&s;t, he might very warrantably have Signed the Minutes &amp; Interloquitors, altho never &s;o long after, &amp; their not being &s;igned till <HI>anno</HI> 1674, as they pretend, is neither a Pre&s;umption, that they were fal&s;e and forged, and made up at that time, nor yet is a nullity upon which the De|creet may be drawn in Que&s;tion: And it is notourly known, that Sir <HI>Archi|bald Primro&s;e</HI> was a Man of &s;uch Integritie, that he would not have had the lea&s;t acce&s;&s;ion to &s;uch a villanous Action, as forging of Minutes in a Proce&s;s of Trea&s;on, which was to ruine a Man both in his Life and Fortune, and nece&s;|&s;arly would in danger his own. And Sir <HI>Archibald Primro&s;e,</HI> nor <HI>Haystoun,</HI> were not &s;o much oblidged to the late Duke of <HI>Lauderdale,</HI> as could induce them to forge and make up Minutes to gratifie him, neither did <HI>Swinton,</HI> nor any of his Relations while Sir <HI>Archibald Primro&s;e</HI> or <HI>Haystoun</HI> lived, take up|on them the confidence, to alledge that the&s;e Minutes were Forged or made up by them, but they have fallen upon this Device &s;ince their Death, thereby to make &s;ome &s;pecious Pretext, to be reponed again&s;t the Decreets &s;o ju&s;tly pronounced again&s;t the &s;aid <HI>John Swinton.</HI> 2^o. The Sub&s;criptions of Per|&s;ons in Office mu&s;t make Faith, otherways there can be no Security nor Certainty to People in their Rights; and where a per&s;on is <HI>Functus</HI> and Ex|auterate, it is ridiculous to think, that either his private Letter or A&s;&s;ertion &s;hould unhinge publick Laws and Sentences, e&s;pecially &s;uch as are founded upon undeniable Evidences, both as to the Relevany and the matter of Fact, otherways it &s;hould be in the power of any Pre&s;ident of the Parliament, or other Judge at one da&s;h to defeat and obliterat all the publick Acts and Senten|ces
<PB N="24" REF="14" MS="y">
they have made and pa&s;t in their Office, and this Letter was impetrat by the importunity of <HI>John Swinton</HI> from the Earl of <HI>Crafurd,</HI> and was never made u&s;e of, nor produced while Sir <HI>Archibald Primro&s;e</HI> lived. 3^o. Altho the Minuts and Interloquitors had not been &s;igned by the Earl of <HI>Crafurd,</HI> yet it is no Nullity, there being no &s;pecial Law nor Cu&s;tom requiring the fa|mine at that time, and the Minuts and Interloquitors of the other Proce&s;&s;es of Forfeiture again&s;t <HI>Guthrie, Govan, Arkindla&s;s,</HI> and others in that Parliament, are not &s;igned by the Chancellor or Pre&s;ident, neither are there any of the Minuts or Decreets of Forfeiture in that Parliament &s;o formal as the&s;e Minuts and Decreet again&s;t <HI>John Swinton,</HI> which will be evident by in&s;pection of the Records; and the method and way of managing that Proce&s;s was advi&s;ed by Sir <HI>John Nisbet</HI> of <HI>Dirltoun,</HI> who was one of the greate&s;t and eminente&s;t Law|yers and Formali&s;ts in the Nation; and it can be made appear, by per&s;ons yet living, who were in <HI>Haystouns</HI> Chamber at that time, that this Decreet and Procedure thereof, was made u&s;e of as an Example in extracting other De|creets of Forfeitures, which were pronounced in that and &s;ub&s;equent Par|liaments.</P>
<P>To the Sixth and la&s;t Rea&s;on of Reduction, bearing, that Sir <HI>Archibald Primro&s;e</HI> did not think him&s;elf <HI>in tuto</HI> to give Extracts under his hand of the &s;aids Minuts, until application was made by the Duke of <HI>Lauderdale</HI> to the Lords. It is An&s;wered, That it &s;eems the Drawer of the Paper has forgot him&s;elf, for in the &s;tate of his Ca&s;e at the end of the fir&s;t Page, he &s;ays, that Sir <HI>Archibald Primro&s;e</HI> did cau&s;e application to be made to the Lords of Se&s;|&s;ion in behalf of the Duke or <HI>Lauderdale,</HI> to give their Warrant for ex|tracting what he was con&s;cious to him&s;elf was &s;o unwarrantably done; and in this Rea&s;on he Alledges, that application was immediatly made by the Duke of <HI>Lauderdale</HI> upon Sir <HI>Archibald Primro&s;e</HI>'s &s;crupling to give out Extracts of the Minuts, which is very incon&s;i&s;tent with what he &s;ays in the &s;tate of his Ca&s;e, that application was made by Sir <HI>Archibald Primro&s;e;</HI> but the truth is, the Duke of <HI>Lauderdale</HI> truly de&s;ired the &s;amine might be by Warrant of the Lords, to make the Extract the more authentick, and in ca&s;e that the Minuts &s;hould be put out of the way (which the decea&s;t <HI>Swinton</HI> neither wanted Cunning nor Art to do, if opportunity offered,) to be an Adminicle for proving and making up the tenor of the Minuts, the late Duke of <HI>Lauderdale</HI> de&s;ired an Extract of the Minuts, and <HI>John Swinton</HI>'s An&s;wers al&s;o, which was the only ground of &s;cruple that Sir <HI>Archibald Primro&s;e</HI> had, becau&s;e it is not ordinar for Clerks to give the Extracts of Minuts, Interloquitors, or An&s;wers, but only of Decreets, and therefore Sir <HI>Archibald Primro&s;e</HI> as an exact and cau|tious Clerk, did &s;cruple to give the Extract, either of the Minuts, or of <HI>Swin|ton</HI>'s An&s;wers, till the Duke of <HI>Lauderdale</HI> made application to the Lords for that effect; and it is ridiculous Non&s;en&s;e, to think that the Lords Warrant to Sir <HI>Archibald Primro&s;e</HI> for extracting of the Minuts could have made them
<PB N="25" REF="14" MS="y">
true, if they had been fal&s;e and forged by him&s;elf, of freed him from the pu|ni&s;hment due to Forgers; and it is an injurious and calumnious Reflection upon the memory of Sir <HI>Archibald Primro&s;e,</HI> to alledge that he was con&s;cious to him&s;elf of the fal&s;hood of the&s;e Minuts.</P>
<P>From all which it is mo&s;t evident and clear, that both the Decreets of Forfei|ture again&s;t <HI>John Swinton</HI> did proceed upon mo&s;t relevant grounds in Law, and upon mo&s;t legal and full Probation in matter of Fact, and for which (and the other Crimes acknowledged in his An&s;wers, but were not in&s;i&s;ted upon at the time) if he were of new to be indited, he would be again Forfeit by the &s;tanding Laws of the Kingdom. And the&s;e Decreets and Minuts thereof being con&s;idered, and compared with mo&s;t of all the other Decreets of For|feiture pa&s;t in that and &s;ub&s;equent Parliaments, there will be none found either more relevantly libelled, or &s;o formal as to the Minuts, and &s;o &s;ecurely buck|led, either as to the Form of Proce&s;s, or Probation thereof.</P>
<P>And there is nothing in the printed State of <HI>John Swinton</HI>'s Ca&s;e, and in his pretended Rea&s;ons of Reduction, but what is either Calumnious in matter of Fact, or altogether Irrelevant in point of Law, and are Reflections in the high|e&s;t degree upon the Honour and Authority of the&s;e Parliaments; and it is the hight of Boldne&s;s and In&s;olence for <HI>John Swinton</HI> to crave Reduction of his Fathers Forfeiture by way of Ju&s;tice, which is a down-right Accu&s;ing and Taxing of the Parliament and their Sentences with Inju&s;tice, to which the Sentences of the Lords of Se&s;&s;ion are not obnoxious or &s;ubject, and far le&s;s the Sentences of Parliament, which is the Supreme and Soveraign Court of the Nation: And &s;uch a Preparative as this, is of mo&s;t dangerous Con&s;equence, both as to the Intere&s;t and Security of His Maje&s;ty and His Subjects; e&s;pecial|ly &s;eing by many antient &s;tanding Laws and Acts of Parliament, Decreets of Forfeiture are not to be reduced <HI>per modum ju&s;titiae</HI> upon any pretended nul|lity of Proce&s;s till the Crime be purged, and that there be a &s;pecial Remi&s;&s;ion of the Crime for which the Forfeiture proceeded; and albeit His Maje&s;ties Bounty cannot be limited to re&s;tore any per&s;on by way of Grace, yet by &s;uch a Re&s;titution, neither His Maje&s;ties Donatar, nor the Intere&s;t of any third Party is prejudged; and it was upon the&s;e Con&s;iderations, that all the for|mer Commi&s;&s;ions that were appointed to make Enquiry into this Forfeiture came to no I&s;&s;ue, and were rendred ineffectual.</P>
<P>In re&s;pect whereof, the Earl of <HI>Lauderdale</HI> ought to be A&s;&s;oilzied from the &s;aid pretended Rea&s;ons of Reduction.</P>
<PB N="26" REF="15" MS="y">
<P>Follows the Names of the&s;e who were appointed in <HI>anno</HI> 1682, by a Commi&s;&s;ion under the Great Seal to take Tryal and Enquiry anent the decea&s;t <HI>John Swinton</HI>'s Forfeiture.

<LIST>
<ITEM>Sir <HI>George Gordon</HI> of <HI>Haddo,</HI> Chancellor.</ITEM>
<ITEM><HI>William</HI> Marque&s;s of <HI>Queen&s;|berry,</HI> The&s;aurer.</ITEM>
<ITEM><HI>John</HI> Marque&s;s of <HI>Athol,</HI> Pri|vy Seal.</ITEM>
<ITEM><HI>James</HI> Earl of <HI>Perth,</HI> Ju&s;tice General.</ITEM>
<ITEM>Sir <HI>David Falconer,</HI> Pre&s;ident of the Se&s;&s;ion.</ITEM>
<ITEM>Sir <HI>George M^ckenzie</HI> of <HI>Tarbat,</HI> Clerk Regi&s;ter.</ITEM>
<ITEM><HI>John Drummond</HI> of <HI>Lundin,</HI> The&s;aurer Deput.</ITEM>
<ITEM>Sir <HI>George Mackenzie</HI> of <HI>Ro&s;ehaugh,</HI> Lo. Advocat.</ITEM>
<ITEM>Sir <HI>John Lockhart</HI> of <HI>Ca&s;tlehill,</HI></ITEM>
<ITEM>and Sir <HI>John Murray</HI> of <HI>Drumcairn,</HI> Senators of the Colledge of Ju&s;tice.</ITEM>
</LIST></P>
</DIV1>
<DIV1 TYPE="text">
<PB N="27" REF="15" MS="y">
<HEAD><HI>John Swinton's</HI> An&s;wers to his Inditement, given in to the Parliament, <HI>1661.</HI> written &amp; &s;ub&s;cribed with his own hand.</HEAD>
<P>ANSWERS by way of Defence, for <HI>John Svvinton</HI> of <HI>Svvinton,</HI> to the Inditement of Trea&s;on, whereof he &s;tands accu&s;ed by the King's Advocat, at the in&s;tance of the King, before the King's Commi&s;|&s;ioner and Parliament, adhering to what was offered by him to the Commi&s;&s;ioner, the 27th of the la&s;t Moneth, by way of Information, and pro|te&s;ting, that if need be is, according to the then grant of the Commi&s;&s;ioner and Parliament, (intimat by the Chancellor as Pre&s;ident) he may be further heard to &s;peak in their pre&s;ence, by way of Information, or otherways; in obedience to their Command, he (having liberty and allowance from the Lords) doth &s;ingly and plainly an&s;wer by way of Defence in Write; Thus, waving all dilator Defen&s;es, even &s;uch as the Law allows him, either as to what might be &s;aid to the Informlaity of the Proce&s;s, or to what he might &s;ay why he ought to be left to the common proceedings in Law, before the Court ordinary to be Tryed, by the known Laws of this Nation, which is the com|mon Benefit and Security of every Subject to plead, &s;pecially in this time of peace and &s;ettlement; As al&s;o waving what he might have to &s;ay in that known Maxim of <HI>Socii criminis.</HI> And even this way of pleading by Writ, and &s;everals of that kind, he doth with his own con&s;ent, without di&s;puting, homologat the Juri&s;diction of the Court of Parliament, not &s;o much as ex|cepting again&s;t any one from being his Judge in this matter, being willing it &s;hould receive a plain and clear i&s;&s;ue, even in this way, being about to give his An&s;wer to this Court, thus con&s;titute of the Repre&s;entatives of King and people, whatever may be the debateable Con&s;ideration, how far the King or people di&s;tinctly con&s;idered, are &s;ubject to, or above the Law: Yet here taking them Collectively, there is more to be &s;aid for the&s;e proceedings, that run not &s;o properly in the Channel of Law, &s;pecially if the Parliament being thus Con&s;titute in the&s;e Tryals, &s;hall proceed not only by vertue of their Ex|ecutive Power, but al&s;o of their Legi&s;lative: And as this &s;tates a va&s;t illi|mited power, (as it were in the Parliament) So it calls upon all and every one of them, in the dread of the Living God, to con&s;ider what they do in the&s;e things, that they judge not for men, but for the Lord, who is indeed Supream; and therefore as he declines not the Law of his Native Countrey, but may in his &s;ub&s;equent An&s;wers, &s;ay &s;omewhat to that, why he ought to be A&s;&s;oilzied, and acquitted from the Inditement: Yet being to an&s;wer be|fore a Court, that (it is like) will not look upon them&s;elves as &s;o &s;trictly tyed to the Letter of Laws, as the extraordinary Courts of Ju&s;tice mu&s;t be,
<PB N="28" REF="16" MS="y">
as having a large and mixed power comprehen&s;ive of Law, Equity and Rea&s;on, and it may be rea&s;on of State too, &s;o to &s;peak; and a power incon|trollable, to execute their Determinations, whether <HI>de jure,</HI> or not, he &s;hall leave to the judgment of that in every one of their Con&s;ciences, wherein as they weigh and con&s;ider it in the coolne&s;s of their minds, they will owne that <HI>de jure</HI> it is Supream; The higher power <HI>to which every knee mu&s;t bow,</HI> and ought to be &s;ubject to, <HI>in heaven and earth;</HI> to which the King and peo|ple mu&s;t give an account, even the light of Chri&s;t in every of their Con&s;ci|ences, the Law written in their hearts; the Faithful Witne&s;s for God, that di&s;covers to man his Thoughts, that brings him many times after his fir&s;t &s;leep to con&s;ider what &s;hall be the end of Pride, Lu&s;t and Vanity, that which oppre&s;&s;eth this Ju&s;t Witne&s;s, which is the Foundation of Society of all ju&s;t Laws, the <HI>vinculum</HI> that tyes man to God, and one to another, even that which leads to the Love of God, and to love our Neighbour as our &s;elves, and &s;tabli&s;heth that grand Principle of Ju&s;tice, to do as one would be done by, is the Foundation of all ju&s;t Magi&s;tracy, is the Line and Rule of true Judgment, proper to be minded and headed, and turned to by the Commi&s;|&s;ioner and Parliament, and every Member of it. To this Rule, Law and Judge, the Defender &s;ubmits and appeals in this matter, even the Light and Witne&s;s for God in their Con&s;ciences: And as to what he &s;hall offer to them of the Law of this Nation, (which is or ought to be Founded on this) Equi|ty or Rea&s;on, he &s;hall leave it to this Witne&s;s near them, and in their hearts, the Eternal and Ingrafted Word, Chri&s;t the Light, that enlightens every man that is come into the World; To this he &s;hall leave it, as the la&s;t ap|peal, and let him &s;tand Ju&s;tified or Condemned, according as the Judgment &s;hall be given in this Law, which is only in this ca&s;e, (and as they are con|&s;tituted) capable to bind a Parliament, who may, it is like, look upon them&s;elves as to men, and Letter of Laws as Supream, which he doth not think unproper or un&s;erviceable for the Parliaments Con&s;ideration, to be thus offered <HI>in limine,</HI> which they will find of the greater nece&s;&s;ity and u&s;e for them, to mind upon the account of the King's Honour and Safety, the Nations and their Own, the Foundations of all Laws, (outward) Govern|ment, Magi&s;tracy having been &s;o perplexed and involved, intrinched upon, brangled, &s;hattered, and a general Con&s;ternation; The minds of men by rea&s;on of the&s;e things, much e&s;tranged, engaged in Animo&s;ities and Facti|ons, and that through their departing from this ju&s;t Law, and principle in them&s;elves; So that is impo&s;&s;ible for them, going by another Rule than this, as the Supreme, to be guided in a &s;afe and healing Path, &s;o as they may be a Ble&s;&s;ing to them&s;elves, and the people over which they are, and have comfort in their Work when they have done; This is his Advocat in all their Con&s;ciences, and to this he &s;hall commit what he hath to &s;ay by way of Defence, here to &s;tand or fall, to be cleared, acquitted, or condemned,
<PB N="29" REF="16" MS="y">
having a place in the Light and power of God, to receive whatever &s;hall be the i&s;&s;ue of this matter, as from his own hand, not minding man nor men, layed down at quiet in his will, &s;tanding in that which is out of the fear of man, in the fear and dread of the living God.</P>
<P>And &s;o to proceed to his An&s;wers, The Defender denys the Inditement, as it is conceived: As to the fir&s;t part of the fir&s;t Article of the Inditement, (pa&s;&s;ing the general part of it, and the Acts of Parliament therein mention|ed &s;ome of them being only Statutory, none of them meeting the particu|lars Charged again&s;t the Defender, or any one of them &s;trickly taken, as all Laws are to be in this ca&s;e e&s;pecially, and where the Pur&s;uer &s;hews, how in particular way of application, they do, and doth conde&s;cend, it may re|ceive a particular An&s;wer) The Defender doth deny this Article, and all of them as they are conceived; Yet doth not deny but that he &s;at in the Par|liament 1649. Whether he did Vote to the Re&s;cinding of that Act of Par|liament 1648. relating to the Ingagement, he doth &s;ingly declare, That he doth not remember, neither can he &s;ay how far he Voted, or con&s;ented to the putting out of any Officer of State, Judges or others, their places, or a|ny thing el&s;e, particularly Charged in this Article, the thing is &s;o long ago; but &s;uppo&s;ing it were clearly proved that he was a Voter in both the&s;e, or in any thing el&s;e Charged again&s;t him, as acted by him as a Member of that Par|liament, <HI>affirmativ&egrave;;</HI> It is offered by way of Defence, That he came and &s;at in that Parliament by a Commi&s;&s;ion from his Countrey, and they were not only owned by the Nation as a Parliament for the time, but al&s;o by the King in that capacity, he receiving Commi&s;&s;ioners from them as the Parlia|ment of the Nation, Treating with Him as &s;uch, a Treaty concluded, one of the Articles of which was a Ratifying of that Parliament, and their proceed|ings, with an engagement to compleat it in a more formal way, at his home coming, which was done by an Act of  <GAP DESC="blank">  of  <GAP DESC="blank">  of  <GAP DESC="blank">  date, particularly by the King and Parliament: Much might be &s;aid upon other Mediums, but this is &s;o &s;trong, &s;o full and clear, to A&s;&s;oilzie the Defen|der from that part of the Libel, as it may &s;uffice.</P>
<P>As to the other Branch of the fir&s;t Article of the Inditement, wherein the Defender is Charged with &s;everal other particulars, as his Voting to, and carrying on the Murther of <HI>Montro&s;e, Huntly,</HI> and others; and all the&s;e Charged upon him, as he was a Member of the Parliament 1649. It not being remembred, That what was done in mo&s;t, if not in all the&s;e particulars, was done by that Parliament, that &s;at in the month called <HI>March,</HI> One thou&s;and &s;ix hundred and fifty, which (whatever el&s;e might be pleaded to warrand its Inditement,) was the time appointed by the Act of Parliament of  <GAP DESC="blank">  1648, conform to the Act of Parliament  <GAP DESC="blank">  for con&s;tituting Triennial Parliaments; &s;o his Defen&s;e to that part of the Charge is, (repeating al&s;o here that part of his Defen&s;e to the
<PB N="30" REF="17">
former, the Treaty, and the Act of Ratification pa&s;t by the King and Par|liament,) that he as he came there by vertue of a Commi&s;&s;ion from his Coun|try, &s;o he came to a Parliament that &s;tood upon a more unque&s;tioned Foot in Law, and in the&s;e particulars, he is not, nor cannot be charged as acting any other ways than in the Capacity as he was a Member of Parliament; and by way of Information, he hath &s;aid &s;omewhat towards clearing him&s;elf from the <HI>Odium</HI> that hath been ca&s;t upon him in the&s;e things, and might &s;ay more, and may if there be opportunity, yet this &s;hall &s;uffice by way of Defen&s;e. To the &s;econd Article of the Defenders Charge, as to the fir&s;t part of it, he doth &s;imply deny it, and admits it of con&s;ent relevant to be proven, and tho he &s;hould be acquitted of this Inditement upon this Tryal, he doth hereby con&s;ent and declare, that if ever hereafter it can be made appear, that he was Guilty of betraying his Tru&s;t, let the conclu&s;ion of the Inditement take place again&s;t him, or the wor&s;t of Puni&s;hments can be devi&s;ed. As to the &s;econd Branch of the &s;econd Article of his Charge, he doth deny it as it is conceived, tho he doth not deny but as he received his Charge from the Committee of States, he did to the then Chancellor in the Committee-Room at <HI>Stirling,</HI> de|clare his laying down of his Charge, de&s;iring him to intimat the &s;ame to the Committee, and at the &s;ame time did intimat the &s;ame to Collonel <HI>Gilbert Ker</HI> his immediat &s;uperior Officer, and forthwith <HI>Crafurdland</HI> was put into his place: This he thinks he is able to prove <HI>in&s;tanter</HI> (if need beis,) as al&s;o before ever he went to that part of the Country where his E&s;tate lay, and where his Bu&s;ine&s;s called him, he was upon the place where Collonel <HI>Ker</HI>'s Regiment was, where he actually did &s;ee the fore&s;aid <HI>Crafurdland</HI> in his Charge, he being occa&s;ionally there for clearing &s;ome things with his Officers, and others relating to his former Charge, this was not under &s;ome Weeks (if not Months) after he had layed down his Charge, and the other in the po&s;|&s;e&s;&s;ion of it, &s;o that it can never be &s;aid with any colour that he de&s;erted his Charge, as the word is commonly received and accepted, and as the import of it is in this place of the Charge. It is al&s;o true, that his Occa&s;ions leading him towards <HI>Berwick</HI>-&s;hire, where the only E&s;tate he had lay, he was Sea&s;ed upon and made Pri&s;oner by a Party of the <HI>Engli&s;h,</HI> carried to their Generals Quarters, and having given an account to him of his Occa&s;ions in the&s;e parts, he did declare to him, that tho he was his Pri&s;oner, yet he &s;hould have liber|ty upon his Parol (or &s;o) to go to his Lodging and about his Affairs. That he was taken Pri&s;oner and thus brought in, he offers him to prove (if need be,) and tho through the General's Permi&s;&s;ion he had liberty to go into the Country with his Family, and as the nece&s;&s;ity of his own Affairs or the Coun|treys did require (who&s;e Condition then was much di&s;tracted and oppre&s;&s;ed) He came to <HI>Edinburgh</HI> &s;ometimes, he having a ready acce&s;s to the General, through the forementioned opportunity, and he forward enough to oblige him, which he can truely and &s;ingly &s;ay, that (according as the State he was
<PB N="31" REF="17" MS="y">
then in could admit) he laid him out to the outmo&s;t for pre&s;erving of that part of the Country and every individual in it, as he had acce&s;s and opportunity; and if this can be called joyning with the Enemy, as this Ca&s;e is circum&s;tan|tiated, or that by any Law of God or Man it can ever be charged upon him as a Guilt &s;pecially to infer the conclu&s;ion of the Inditement, let all &s;ober Men judge. To the third Article of the Inditement, he doth deny it as it is conceived, tho it is true that he was at <HI>Worce&s;ter,</HI> and as he was there, it is al&s;o true he went thither through the earne&s;t Intreaties and Importunities of him, that (though he doth ingenuou&s;ly declare, that he cannot &s;ay that he did u&s;e that as an Argument) could have commanded him along with him as his Pri&s;oner, and who&s;e Pri&s;oner he was upon the matter, and this after he had then met with that he then looked upon as hard mea&s;ure from the King and Country out of the protection of Law, the&s;e temptations he was under, and yet he went in no other Capacity than as a Traveller, no other Arms than a Traveller; and if it &s;hall be made our that ever he joyned &s;o much as in any Troop, or carried any Charge, or that in any occa&s;ion there, the Battel or otherways, he did draw his Sword or loo&s;e a Pi&s;tol, he admits all or every one of the&s;e rele|vant of con&s;ent to infer the conclu&s;ion of the Inditement. It is known how greatly u&s;eful his there being was to his Country-men, not only of his neare&s;t Relations whom he found deadly wounded, but many others, the particulars whereof needs not to be mentioned, he having indeed a &s;ufficient reward in the work it &s;elf, doing it upon a free and &s;ingle intention, never thinking of ma|king u&s;e of it upon &s;uch an occa&s;ion as this. Only this he can &s;ay in the pre|&s;ence of the &s;earcher of hearts, that he thinks if the Parliament &s;hould find the Inditement again&s;t him upon that &s;ingle Head of being at <HI>Worce&s;ter,</HI> as he doth look upon that as Principal, and all the re&s;t but Acce&s;&s;ories (as it were) even in the intention of the Libeller, the Sentence pa&s;t as to Life and E&s;tate, and it ready to receive its la&s;t Con&s;ummation, he could receive it, and ly down under it with a more chearful heart, than he enjoyed any time he was at <HI>Worcester,</HI> to &s;ee and be Witne&s;s of the reproach of his Countrey, and the di&s;tre&s;s his Countrey-men was under. His Defence is, that it was in <HI>England</HI> the Crime, what-ever it was, was committed where it is properly try able, and where the King (in who&s;e Name, and by who&s;e Advocat this Inditement is pro&s;ecute) hath Indemnified the Defender from it; And that he hath &s;o done, will appear by the expre&s;s words of the 5th Clau&s;e of the Act of In|demnity. And tho it may be Objected that this is an <HI>Engli&s;h</HI> Law; It is ad|duced in the ca&s;e of Crime committed in <HI>England,</HI> tryable in <HI>England,</HI> par|donable in <HI>England,</HI> pardoned in <HI>England,</HI> and that by him again&s;t whom the offence was committed, what-ever it was, the Defender actually a Pri&s;o|ner in <HI>England,</HI> and from thence &s;ent hither a Pri&s;oner, brought hither in an <HI>Engli&s;h</HI> Frigot; &s;o that as to this Crime, in this ca&s;e, as it is circum&s;tantiated, it is pleadable, and by the Defender Pleaded as his Defence. And this is
<PB N="32" REF="18" MS="y">
mainly to be minded in this particular of the Inditement, That the Defender (when he could have &s;hunned it) was taken in <HI>England,</HI> was kept 19 Weeks and upwards clo&s;s Pri&s;oner there; was &s;ent from <HI>England</HI> hither by the King's Authority, to receive a Tryal in his own Countrey, for &s;uch things as he is chargeable with at the in&s;tance of the King, as acted here in his own Coun|trey. For it can never be under&s;tood, that the King in Honour, Ju&s;tice, or Equity, would &s;end him down out of <HI>England,</HI> to be tryed for his Life and E&s;tate here, for a Crime committed &s;o many years ago in <HI>England,</HI> and which he hath ab&s;olutely and freely Remitted there, as fully, as if the Defenders Name and Sirname were particularly expre&s;t, as Indemnified, and that par|ticular Act of his being at <HI>Worce&s;ter,</HI> expre&s;ly remitted; by rea&s;on whereof he ought to be A&s;&s;oilzied from this Article of the Inditement. As to the 4th Article of the Inditement, It is denyed, as it is conceived, tho he doth not de|ny but he was in a Parliament of <HI>England</HI> by a Call and Commi&s;&s;ion from his Countrey, the Nation having &s;o far &s;ubmitted to the Union with <HI>England,</HI> that they &s;ent their Deputies to &s;everal Parliaments. By what Law this is Crimi|nal (&s;pecially as it is circum&s;tantiated) when the Pur&s;uer &s;hews, it may re|ceive an An&s;wer. To the other Branch of the Article, The Defender doth ingeniou&s;ly declare, he doth not remember that he was at any &s;uch Vote of renouncing the King and his Family, neither doth he think he was; however, if he was, it was in <HI>England:</HI> And if it &s;hould be proven, as he is confident it will never be, he repeats his Defence adduced in the Ca&s;e of <HI>Worce&s;ter.</HI> To that Branch of the Article, His receiving Imployments from <HI>Oliver Crom|wel</HI> and others, as one of the Commi&s;&s;ioners for Admini&s;tration of Ju&s;tice, and one of the Council: That part of the Article is &s;o far confe&s;t by him, that he was in the&s;e Imployments, but never in the&s;e, nor in any, till his Coun|trey Nationally had &s;ubmitted (&s;topping for the good of the Nation to the nece&s;&s;ity of the time) to the Authority of <HI>England.</HI> And as things were then &s;tated, he doth believe, it was look'd upon by the Nation as for the good and &s;ervice of the Countrey, that Countrey-men were admitted to, and did act in the&s;e Imployments; and that it was look'd upon as no di&s;-&s;ervice or di&s;|advantage to his Countrey at that time, that the Defender was one: And he can truly &s;ay, that the &s;ervice of his Country was none of the lea&s;t induce|ments, to engage him in the accepting of, and continuing to the&s;e Imploy|ments. And if ever it can be made appear, that he &s;ought after one or ei|ther of them, let it infer the Conclu&s;ion of the Summons, as relevant of con|&s;ent. What the tendency of his way in the&s;e Imployments was, towards the &s;ervice or di&s;-&s;ervice of his Countrey, let his greate&s;t Enemy Witne&s;s in this day, he &s;hall not in the&s;e things bear Witne&s;s for him&s;elf; the more narrowly, and particularly his way in the&s;e things &s;hall be inquired into, it &s;hall be the le&s;s di&s;advantage to him. And as to the in&s;inuations of the great profits and advantage he hath had, he &s;hall only give it this An&s;wer, which is &s;ingle truth,
<PB N="33" REF="18">
that notwith&s;tanding what-ever he received one way or another, he can &s;o|lemnly declare, and doth, that tho he were not chargeable by the King, nor any other, as to his E&s;tate, or any Charge relating thereto, upon the ac|count of his acting in the&s;e things, but were cleared of all the&s;e, he is two thou&s;and Pounds <HI>Sterling</HI> and upwards more in debt than he was left by his Father, when be died in the year 52. occa&s;ioned through his Expences in tumbling about in the&s;e matters: This he mentions only upon this occa&s;ion, that it may appear he hath not enriched him&s;elf in the&s;e times, but indeed even in that way half endangered the de&s;troying of that E&s;tate conveyed to him by his Ance&s;tors. And now having given the&s;e plain Defences to the Articles of the Inditement, wherein he hath endeavoured to contract much of what might be &s;aid, not only by way of Information, but al&s;o by way of Defence <HI>pe|remptorie,</HI> being purpo&s;ely omitted; tho they may be look'd upon as &s;o for|mal (as it may be judged) need were, yet let them be weighed in the ju&s;t Ballance, the eternal Rule of Righteou&s;ne&s;s, and the Defender doubts not, but by that Law which is Supream, the Law of this Nation, the Law of Na|tions, Equity and Rea&s;on; nay, admitting Rea&s;on of State al&s;o in its place, to have its own weight, as this matter now &s;tands before the Parliament, and is circum&s;tantiated, it being remembred by the Commi&s;&s;ioner and Parliament, that it was not early the Defender became engaged in the Publick Tran&s;action of the&s;e times, as is manife&s;t by the Inditement it &s;elf, the Parliament in Ju&s;tice will find the An&s;wers relevant, to elide the Inditement, and to A&s;&s;oilzie the Defender.</P>
<CLOSER><SIGNED><HI>Sic Sub&s;cribitur</HI> J. Swinton. </SIGNED>
<SIGNED><HI>Extractum de Libro Actorum, per me</HI> A. Primero&s;e<HI>Cls. Reg.</HI></SIGNED></CLOSER>
</DIV1>
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<HEAD>Minuts of <HI>John Swinton</HI>'s Proce&s;s of Forfeiture in <HI>anno 1661.</HI></HEAD>
<P><HI>EDinburgh</HI> 7 <HI>February.</HI> 1661. Sir <HI>John Fletcher</HI> His Maje&s;ties Advo|cat, having given in, and repeated in pre&s;ence of the Parliament, the Libel and Inditement pur&s;ued by him for His Highne&s;s Intere&s;t, again&s;t <HI>John Swinton,</HI> Pannal: Together al&s;o with the Decreet of Forfeiture pro|nounced by the Committee of E&s;tates, as having Power by Act of Parlia|ment for that Effect again&s;t the &s;aid Pannal, Dated at <HI>Ferth</HI> the &s;econd day of <HI>April</HI> 1651. He craved that the &s;aid Decreet of Forfeiture might be ra|tified, and approven by the E&s;tates of Parliament, and Ordained to be put to Execution. And without Prejudice thereof, Further craved, that the &s;aid new Inditement might be found Relevant and admitted to his Probation. The Kings Maje&s;ty, and E&s;tates of Parliament before An&s;wer, ordains the new Inditement to be given up to the &s;aid <HI>John Swinton,</HI> Pannal: He being in Pri&s;on within the Tolbooth of <HI>Edinburgh,</HI> to the Effect, he may &s;ee the &s;amine,, and an&s;wer thereto 15 <HI>May</HI> 1661. The Pannal having &s;een the &s;aid new Inditement, and given in An&s;wers and Objections there again&s;t Extant lying in Proce&s;s; And who being Per&s;onally pre&s;ent, and heard &s;peak for him&s;elf <HI>Viva Voce</HI> in open and plain Parliament, did judicially Con|fe&s;s and Acknowledge, That he went in Company with <HI>Oliver Cromwel,</HI> with that Armie to <HI>Worce&s;ter,</HI> and was with that Army at the Battel of <HI>Worce&s;ter:</HI> Whereupon His Maje&s;ties Advocat asked In&s;truments, and declared, that he in&s;i&s;ted allannerlie <HI>pro tempore</HI> upon that part of the &s;aid new Libel, bearing that the Pannal did go along with the &s;aid U&s;urper, In Arms in the Army of <HI>Sectaries</HI> libelled: and was actually at <HI>Worce&s;ter,</HI> upon the 3d of <HI>Sep|tember</HI> 1651 years, and did Fight in Ho&s;tile manner again&s;t his Maje&s;ty and Army of <HI>Scotsmen,</HI> at the lea&s;t was with the &s;aid U&s;urper, with his &s;aid Army of <HI>Sectaries</HI> in Arms as &s;aid is, and that he Trea&s;onably A&s;&s;i&s;ted, Counte|nanced and promoted all the &s;aid U&s;urper his wicked and trea&s;onable Pur|po&s;es and De&s;igns; Likeas the &s;aid Lord Advocat repeated his former De&s;ires, and not only craved, that the &s;aid Decreet of Forfeiture might be approven, and ordained to be put to Execution: But likeways, that the Pannal may be again found and declared to be guilty of the Crime and Lyable to the Pain and Puni&s;hment of Trea&s;on: And to be Decern'd and ordain'd to underly the &s;amine. The Pannal craved to &s;ee the former Sentence of Forfeiture, which was given up to him to &s;ee and give in his An&s;wers upon <HI>Friday</HI> come
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eight days, being the 24 of <HI>May</HI> in&s;tant; &amp; to alledge why the &s;amine &s;hould not be put to Execution, with certification <HI>&amp;c.</HI> 12 <HI>July</HI> 1661. His Maje&s;ty and E&s;tates of Parliament, having con&s;idered that Member of the new In|ditement of Trea&s;on <HI>pro tempore</HI> in&s;i&s;ted upon, with the Pannal's An&s;wer in Writ, and <HI>Viva Voce,</HI> and Judicial Confe&s;&s;ion and Declaration, de&s;ire of the Lord Advocat, with the former Decreet of Forfeiture. They re|pelled, and repells the &s;aids An&s;wers and Objections made &amp; given in in Writ, and <HI>Viva Voce</HI> as no ways Relevant, &amp; finds the forementioned Article &amp; Mem|ber of the &s;aid new Inditement in&s;i&s;ted upon, relevant and proven by the &s;aid Pannal his judicial Confe&s;&s;ion; And therefore not only ratifies and ap|proves the former Decreet of Forfeiture again&s;t the &s;aid <HI>John Swinton,</HI> Pan|nal, but al&s;o of new finds and declares, that the &s;aid Pannal is guilty of the &s;aid Crime of Trea&s;on; And has incurred the &s;aid Pain and Puni&s;hment of High Trea&s;on <HI>&amp;c.</HI> And recommends to the Kings Maje&s;ty his con&s;ideration, the putting the Sentence and Decreet to Execution again&s;t the &s;aid Pannal, In &s;o far as concerns his Life allannerlie, and ordains the Per&s;on of the &s;aid Pannal to be keeped in Pri&s;on within the Ca&s;tle of <HI>Edinburgh,</HI> till His Ma|je&s;ties plea&s;ure be further known thereanent.</P>
<CLOSER><SIGNED><HI>Sic &s;ub&s;cribitur</HI> Crafurd Lind&s;ay, <HI>I. P. D. Parl.</HI></SIGNED> 
<SIGNED><HI>Extractum de libro Actorum per me.</HI> A. Primro&s;e, <HI>Cls. Reg.</HI></SIGNED></CLOSER>
<TRAILER>FINIS.</TRAILER>
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