ANSWERS FOR THE EARL of LAUDERDALE TO A PRINTED PAPER Entituled The Case of JOHN SWINTON In relation to his Fathers Forefaulture and to the pretended Reasons of Reduction of the said Forfaulture Alledged to be now depending before the Parliament Edinburgh Printed by the Heir of Andrew Anderson 1690. Answers for the Earl of Lauderdale to a Printed Paper Entituled The Case of John Swinton in relation to his Fathers Forfaulture and to the pretended Reasons of Reduction of the said Forfaulture Alledged to be now depending before the Parliament THE deceast John Swinton being a Person of a considerable Interest and Trust in the Kingdom of Scotland in Anno 1651. Upon the Invasion of Cromwel and the English Rebels Swinton did desert his Soveraign and Native Countrey and abandoned his Charge in the Army and did joyn and associat himself with the Usurper Cromwell for which he and some other Traitors were Cited before the Parliament at Perth and the matter being remitted by the Parliament to the Committee of Estates and His late Majesty King Charles the Second being present in the Committee and the matter being both notourly known as also sufficiently proven John Swinton was Forefault in anno 1651. for deserting his Charge in the Army and joyning with Cromwel Thereafter John Swinton marched with Cromwel to Worcester and did actually appear in Arms against his Soveraign in Person when the Royal Family and his Native Countrey were at the last and outmost extremity where the late Duke of Lauderdale being taken Prisoner in defence of his Soveraigns Right and preservation of his native Countrey from slavery was thereafter detained three years closs Prisoner in the Tower of London expecting every hour the stroak of the Executioner and was kept other three years in a Vault at Portland-Castle and being transported thence to Windsor-Castle he was likewise detained Prisoner there other three years And being Forfeited for his Loyalty by those Regicides John Swinton did improve his Interest and Power he had with the Usurper Cromwell being his great Minion and Trustee being nominat by him to be a Lord both of Council Exchequer and Session to so base and ungenerous ends that he did persecute those who had faithfully adhered to their Soveraign and Native Countrey in their distress and did procure in his own Favours a Gift of the Duke of Lauderdale's Forfaulture and thereby did possess a considerable part of his Estate to the value of one thousand Pounds Sterling per annum for the space of more than 8 years the rest of the Duke's Estate being possessed by as notorious Traitors as himself during all which time the Duke of Lauderdale's Lady and Daughter were reduced to such straits and necessities that they had not Bread to eat the unjust Invaders of his Estate neither allowing him any thing out of the same to maintain himself and his Family nor yet interposing with the Usurper for an allowance out of the Publick In which condition the Duke lived till it pleased God to extricate him out of these straits and difficulties by the happy Restauration of his Native Soveraign King Charles the Second in anno 1660. In anno 1661. John Swinton was sent down Prisoner from London to be Judged by the Parliament of Scotland and being conveened before the Parliament His Majesties Advocat did insist against him not only upon the former Sentence and Doom of Forfaulture past against him in anno 1651. And that the samine might be put to further Execution but likewise exhibited a new Inditement against him upon several new additional Articles of Treason and particularly upon his going along with the Rebels to and being in Arms at the Fight of Worcester against his Soveraign in person And John Swinton having appeared several times in the Pannel he not only viva voce did acknowledge but by Defences Written and Subscribed with his own Hand given in to the Parliament he confessed his being in Arms at Worcester with the Usurper Cromwel against his Soveraign but did plead the benefite of the Act of Indemnity in England which did not at all concern Scotsmen whereupon the Parliament in anno 1661 did not only Ratifie and Approve the former Doom and Sentence of Forfaulture pronounced against the said John Swinton by the Committee of Estates in anno 1651 but also for the additional Crimes contained in the new Inditement acknowledged by himself both viva voce before the Parliament and by the Written and Subscribed Defences Swinton was again Forfaulted And in the next Session of that same Parliament the Doom of Forfaulture against Swinton is mentioned and related in the Act of Indemnity and he and some others are expresly excepted from the Indemnity as standing Forfault by that same Parliament King Charles the Second was graciously pleased to gift and bestow Swinton's Forfaulture to the late Duke of Lauderdale not only in consideration of his faithful Services and great Sufferings but particularly because John Swinton had taken a Gift from the Usurpers of a considerable part of the Duke of Lauderdale's Estate So that there was never any Forfaulture upon more just and important Crimes nor did ever any Prince Gift a Forfaulture upon more reasonable and equitable considerations Nevertheless after the Duke of Lauderdale's decease in anno 1682 when his Family and Representatives were in very hard circumstances Swinton's Son did impetrat and procure from the late King Charles the Second upon most false and disingenuous representations a Commission for enquiring into the Method and Procedure and the Warrands upon Record of Swinton's Forfaulture and there being a multitude of frivolous Objections offered by Swinton's Son and full Answers thereto by the Earl of Lauderdale and the Creditors of the deceast Duke of Lauderdale And both Parties being heard viva voce before that Commission the Commissioners were fully satisfied that nothing of moment was instructed and that the Crimes for which Swinton was Forfeited at Perth viz. his deserting his Charge in the Army and joyning with the Rebel Cromwel and his being thereafter in Arms at Worcester for which he was again Forfeited in the Parliament 1661. was not only true and incontroverted but acknowledged by Swinton himself in his Answers given in to his Inditement which were Written and Subscribed with his own Hand as said is So that if there had been any Informality in the Processes of Forfeiture as there were none yet these Informalities could have no effect and ought not to be regarded Especially seing by the 135 Act Parl. 8. K. Ja. the 6. It is Statuted that no Forfeiture for Treason against the King and His Estates shall be Reduced for any pretended Cause of Nullity that may be Alledged to have been in the Process except the Crime be either Remitted by His Majesty or that it could be purged and acquit by a Tryal Whereupon the Commission was deserted Thereafter the said John Swinton's Son and his Relations being conscious to themselves that they could not prevail to
that to Redargue the Faith and Verity of that Decreet of Forfeiture were to accuse the Parliament of manifest Injustice and lay an Imputation upon the Parliament of putting a Man to death upon a false Decreet which the meanest Judicature in Scotland could not be guilty of far less the Supreme Judicature of the Nation and it is obvious to any man's sense that if this Decreet had been false Lieutenant Govan when he was called before the Parliament and received the Order and Sentence of Death would have reclaimed against the Faith and Verity of that Decreet so that the Parliaments Approbation of this Decreet of Forfeiture by executing of Govan and his not reclaiming against the same and the Parliaments again approving thereof in the last Sentence of Forfeiture against Swinton in anno 1661. are unanswerable Documents of the Verity and Faith of the said Decreet 3o. For astructing the Verity of the Decreet of Forfeiture in anno 1661. there needs no more be said but that the List of the Unprinted Acts of the first Session of the Parliament anno 1661. contains both the Decreet of Forfeiture against John Swinton and he Ratification in favours of the late Duke of Lauderdale of the Gift of Swinton's Forfeiture And in the Act of Indemnity which was past in the second Session of that same Parliament the Decreet of Forfeiture against John Swinton is particularly excepted therefrom which beyond all question doth adminiculat and astruct the Verity of the said Sentence and Doom of Forfeiture and that the same was made up after the year 1673. appears evidently to be false because the person who Scrolled that Decreet of Forfeiture whose name was Brown was put out of Haystoun's Service and Writing-Chamber in anno 1663 and was dead before the year 1670. And the Registers of the Decreets of Forfeiture were all Written in one Book by David Plenderleith before the year 1669. and delivered in to the Register and amongst which is insert the same Sentence of Forfeiture against Swinton so that the falseness of that assertion is evident that the Parliament 1661. did not proceed to a Sentence upon that Process raised against Swinton and that there were never Decreets Extracted till the year 1674. and Sir Archibald Primrose was known to be a person of such Integrity and so Cautious in all his Actings that although he be loaded by John Swinton with sinistrous and indirect Methods in making up of the Minutes of the said Decreet and procuring a Warrant for Extracting the same not sparing his Reputation now after his death to attain his unjust ends which he durst not in the least adventure upon while he was alive Yet by what has been said and by the following Answers to John Swinton's pretended Reasons of Reduction it shall be made evident and clear he did nothing in this Affair but what he was warranted both from the Records of Parliament and Laws of the Kingdom 4o. As to that pretence that it was thought strange that the Duke of Lauderdale being a man of such power durst not adventure to put a Crime so Calumniously Charged upon John Swinton to the Tryal of a Parliament It is Answered It is thought more strange that John Swinton being innocent of these Crimes as is pretended in the said Paper for which he was Indited and Convict both by the Committee of the Estates 1651. and Parliament 1661. should have suffered the Duke of Lauderdale to possess his Estate during his Life who died but in anno 1679. and did never make application either to the Parliament 1661. or to any other Parliament that was keeped since for Redressing that pretended Injury that he received by the Duke of Lauderdale's pretended unjust possession of his Estate or for Vindicating himself of those notorious Crimes whereof he was Indited and Convict And if there was no Sentence of Forfeiture pronounced against the said deceased John Swinton how came this John Swinton to Address to and Imploy his Interest with the Quakers and others in England who had influence on His Majesty for a Commission for inquiring into the said Forfeiture and procedor thereof and when this could take no effect for a Rehabilitation to the deceast John Swinton's Children and for a Remission of the Crime to the deceast John Swinton himself for if there was no Decreet of Forfeiture against John Swinton there needed no Commission for inquiring thereunto neither was it necessary to have desired a Rehabilitation in favours of his Children and if he was not guilty of Treason there was no need of a Remission And how came the deceast John Swinton in his Speech before the Parliament 1661. to endeavour to extenuat his Guilt by pretending that the Ambition of his younger years having entred him too early into publick Imployment did make him Act these things which if they were to do he would rather with the one hand strike off the other than be guilty of them and that he spoke this can be made appear by many Witnesses 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 used such an expression as this which clears that he was not only guilty of the Crimes but likewise that he was sensible of his Fault But the truth is John Swinton does sometime run to one Shift and sometime to another as he thinks will help forward his present Design and notwithstanding of his pretended simplicity he resolves calumniari audacter ut aliquid adhereat 5o. As to that Alledgance that the Earl of Lauderdale had such Influence upon these to whom the Commission was direct in anno 1682 as rendred the prosecution thereof ineffectual It is Answered That this is very suitable to the rest of his Alledgances and is a gross Reflection upon those nominat in the Commission some of them being as eminent persons and of as known Integrity as is in the Kingdom and the Alledgance is most Calumnious for as the Commission was impetrat and obtained by John Swinton and his Friends their importunity so it s very notour that the Commissioners named in the said Commission were John Swinton's very good Friends for the most part and whom by his Power and Influence at Court for the time he procured most of them so to be named and appointed and that the World may judge how the Earl of Lauderdale was stated with the most part of the Commissioners their Names are subjoyned at the end of thir Answers This being in short the Answer to John Swinton's Case as it is stated before his pretended Reasons of Reduction except to the deceast Earl of Crafurd's Letter which will come in more properly afterwards in the Answer to the Objection against the Minuts The next thing that falls in to be considered are his pretended Reasons of Reduction To the first Reason whereof being against the Decreet of the Committee of Estates in anno 1651 and bearing that
of the Decreet given to John Swinton thereafter when the Principal Decreet was gotten back from him And as to that pretence that it was absurd to assign him a further Dyet after a Judicial Confession since in Law Confessus pro condemnato habetur It is Answered That it was very consistent with the Parliaments Procedure in that Process because John Swinton not only being Indyted upon new Crimes committed by him in anno 1651. But likewise the Decreet in anno 1651. being to be Ratified and Approven his Judicial Confession being only in relation to these new and supervenient Crimes the Parliament might very well assign him another day as they did upon his desire to give in his Answers to the Decreet 1651. To the third Branch of that Reason It is Answered that there was no necessity to insert in the last Decreet of Forfeiture that he had gotten up the former Decreet to see unless that Swinton had returned the samine with particular Answers and although it had been insert it would infer no nullity in the Decreet although John Svvinton never appeared before the Parliament thereafter for having neglected to give in his Answers the Parliament might and did very warrantably proceed both to Forfeit him upon the new Inditement and to Ratifie and Approve the first Decreet To the fourth Reason of Reduction being against the third and last Minute It is answered 1o. That the Minut is opponed bearing no such thing as Swinton's compearance that day but it doth only bear that the Parliament having considered that member of the new Indytment of Treason pro tempore insisted on with the Pannals answer in Write and Viva Voce and judicial confession desire of the Lord Advocat with the former Decreet of Forfeiture they repelled the saids Answers given in in Write and viva voce as no ways relevant and found the formentioned Article and Member of the foresaid new Indytment insisted upon relevant and proven without making any mention of the Pannal's Personal Compearance And as to that part of the Reason denying any judicial Confession to be emitted by Swinton or extant in Process the former Answers are opponed 2o. Altho there was a day assigned to the said John Swinton to give in his Answers against the first Decreet yet there was no necessity to call him before the Parliament thereafter unless he had given in his Answers which he not having done as he was appointed and ordained the Parliament did very justly proceed to pronounce a Sentence of Doom and Forfeiture against him upon the new Indytment and to ratifie the former Decreet of Forfeiture in anno 1651. And the deceas'd John Swinton returning the said Decreet without any Answer was a clear and convincing Argument that he intended to make none against the said Decreet being conscious to himself that it was justly pronounced against him So that there was no necessity to call him when the Parliament advised his new Indytment and pronounced Sentence upon the samine especially considering that by the quality adjected to the sentence he was recommended by the Parliament to His Majesty as to his Life 3o. As to the last part of that Reason anent the want of the Solemnities as Read Voted Touched Warrand for publication by sound of Trumpet and tearing of Arms which certainly would not have been omitted as is pretended if any Sentence of Forfeiture had been truly past It is Answered 1o. That it is admired with what Confidence it can be asserted that there was no Decreet of Forfeiture past in that Parliament against John Swinton in the Year 1661 but that it was made up in the Year 1670 or thereafter seing amongst the list of the Imprinted Acts of the first Session of the Parliament 1661 there is Insert not only a Decreet of Forfeiture against John Swinton but also a Ratification of John Swintons Forfeiture in Favours of the late Duke of Lauderdale And in the Act of indemnity which was past in the second Session of that same Parliament the Decreet of Forfeiture against John Swinton is particularly excepted and by the Decreet of Parliament in anno 1661 John Swinton being recommended to the King as to his Life he was ordained to be kept Prisoner in the Castle of Edinburgh till his Majesties pleasure was fully known So in prosecution of that part of the Decreet upon the sixteen of July 1661 within four days after the Decreet the Commissioner subscribes a Warrant to the Magistrats of Edinburgh to deliver the Person of John Swinton to the Captain of the Castle of Edinburgh or his Lieutenant and whereupon Mercer Lieutenant of the Castle gave his Receipt which will appear by the Register of the Tolbooth and Warrants thereof all which being joyned with the Duke of Lauderdale's Possession of Swinton's Estate conform to the foresaid Decreet of Forfeiture do fully Adminiculat and astruct the Verity of the said Doom and Sentence of Forfeiture 2o. As to the want of the Solemnities it is Answered that it is known that Sir Archibald Primrose was a man so Exact and Cautious that he would not have put a Decreet and Sentence of Parliament in the List of the imprinted Acts nor would he have given an Extract thereof under his hand had not the foresaid Sentence been both Voted and Read the hazard thereof and of forging a Decreet of Parliament being no less than his Life and Fortune And it is evident that the Parliament having considered the Process having repelled the Defences which were formerly given in both in Write and Viva Voce And having likewise considered his Confession formerly mentioned they behoved to Read and Vote the samine these being solemnia sententiae latae quae semper et necessario inesse presumuntur etiamsi non expressa And as to the tearing of his Arms and sounding of the Trumpet there was no necessity thereof that Solemnitie having been performed in the first Decreet of Forfeiture in anno 1651. And the Touching of Decreets of Forfeitures is no ways necessar that being only a Solemnitie adhibit to publick Laws to signifie the Royal Assent but not at all to Sentences and Decreets betwixt or against privat Persons except by the Forfeiture the Lands of the forfeit Person be annexed to the Crown And if any such Solemnity was used in any other Decreets of Forfeiture it was ex super-abundanti there being no such thing required by our Law To the fifth Reason of Reduction being against the whole Minutes It is Answered 1o. That esto it were true that the Earl of Crafurd did sign these Minutes at the time condescended upon in his Letter yet he does not at all therein question the Truth of the saids Minutes and of the Sentence of Forfeiture and John Swinton's making use of this Letter to Canvel the Truth of the Minutes is the greatest Imputation and Reflection upon the Honour Integrity and Ingenuity of the Deceas'd Earl of Crafurd For can any Man in Sense or Reason think that
upon this occasion that it may appear he hath not enriched himself in these times but indeed even in that way half endangered the destroying of that Estate conveyed to him by his Ancestors And now having given these plain Defences to the Articles of the Inditement wherein he hath endeavoured to contract much of what might be said not only by way of Information but also by way of Defence peremptorie being purposely omitted tho they may be look'd upon as so formal as it may be judged need were yet let them be weighed in the just Ballance the eternal Rule of Righteousness and the Defender doubts not but by that Law which is Supream the Law of this Nation the Law of Nations Equity and Reason nay admitting Reason of State also in its place to have its own weight as this matter now stands before the Parliament and is circumstantiated it being remembred by the Commissioner and Parliament that it was not early the Defender became engaged in the Publick Transaction of these times as is manifest by the Inditement it self the Parliament in Justice will find the Answers relevant to elide the Inditement and to Assoilzie the Defender Sic Subscribitur J. Swinton Extractum de Libro Actorum per me A. Primerose Cls. Reg. Minuts of John Swinton's Process of Forfeiture in anno 1661. EDinburgh 7 February 1661. Sir John Fletcher His Majesties Advocat having given in and repeated in presence of the Parliament the Libel and Inditement pursued by him for His Highness Interest against John Swinton Pannal Together also with the Decreet of Forfeiture pronounced by the Committee of Estates as having Power by Act of Parliament for that Effect against the said Pannal Dated at Ferth the second day of April 1651. He craved that the said Decreet of Forfeiture might be ratified and approven by the Estates of Parliament and Ordained to be put to Execution And without Prejudice thereof Further craved that the said new Inditement might be found Relevant and admitted to his Probation The Kings Majesty and Estates of Parliament before Answer ordains the new Inditement to be given up to the said John Swinton Pannal He being in Prison within the Tolbooth of Edinburgh to the Effect he may see the samine and answer thereto 15 May 1661. The Pannal having seen the said new Inditement and given in Answers and Objections there against Extant lying in Process And who being Personally present and heard speak for himself Viva Voce in open and plain Parliament did judicially Confess and Acknowledge That he went in Company with Oliver Cromwel with that Armie to Worcester and was with that Army at the Battel of Worcester Whereupon His Majesties Advocat asked Instruments and declared that he insisted allannerlie pro tempore upon that part of the said new Libel bearing that the Pannal did go along with the said Usurper In Arms in the Army of Sectaries libelled and was actually at Worcester upon the 3d of September 1651 years and did Fight in Hostile manner against his Majesty and Army of Scotsmen at the least was with the said Usurper with his said Army of Sectaries in Arms as said is and that he Treasonably Assisted Countenanced and promoted all the said Usurper his wicked and treasonable Purposes and Designs Likeas the said Lord Advocat repeated his former Desires and not only craved that the said 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 Punishment of Treason And to be Decern'd and ordain'd to underly the samine The Pannal craved to see the former Sentence of Forfeiture which was given up to him to see and give in his Answers upon Friday come eight days being the 24 of May instant to alledge why the samine should not be put to Execution with certification c. 12 July 1661. His Majesty and Estates of Parliament having considered that Member of the new Inditement of Treason pro tempore insisted upon with the Pannal's Answer in Writ and Viva Voce and Judicial Confession and Declaration desire of the Lord Advocat with the former Decreet of Forfeiture They repelled and repells the saids Answers and Objections made given in in Writ and Viva Voce as no ways Relevant finds the forementioned Article Member of the said new Inditement insisted upon relevant and proven by the said Pannal his judicial Confession And therefore not only ratifies and approves the former Decreet of Forfeiture against the said John Swinton Pannal but also of new finds and declares that the said Pannal is guilty of the said Crime of Treason And has incurred the said Pain and Punishment of High Treason c. And recommends to the Kings Majesty his consideration the putting the Sentence and Decreet to Execution against the said Pannal In so far as concerns his Life allannerlie and ordains the Person of the said Pannal to be keeped in Prison within the Castle of Edinburgh till His Majesties pleasure be further known thereanent Sic subscribitur Crafurd Lindsay I. P. D. Parl. Extractum de libro Actorum per me A. Primrose Cls. Reg. FINIS
it is a Decreet in Absence not subscribed by the Clerk Register for the time but by Mr. Thomas Henderson pretended Clerk to that Committee from whom an Extract was elicit in anno 1661 ten years thereafter and whereof there is no Warrant extant in Records of Parliament It is Answered 1o. That it is notourly known that Mr. Thomas Henderson who Subscribes the Extract of the Decreet of Forfeiture pronounced by the Committee of Estates in anno 1651 to whom the Parliament had remitted these Processes of Forfeitures was Clerk to the said Committee of Estates and the Extract of the Decreet bears not only the Forfeiture of John Swinton but of several other persons and amongst the rest Lieutenant Govan who upon the same Decreet was Execute as appears by the Minuts in anno 1661 upon the Margine thereof the last Minut whereof is ordaining that Decreet of Forfeiture to be put to further execution against Govan and is Subscribed by the President of the Parliament 1661 and the Sentence of Death was accordingly execute against him thereupon though his Crimes were far less obvious and notour than these of John Swinton's and Clerks to Committees of Estates or Criminal Courts or any of the Registers Deputs do grant authentick and valid Extracts although not subscribed by the Clerk Register and it is a meer Calumny that the Extract was elicit from Mr. Thomas Henderson in the year 1661 and it is an intollerable imputation and reflection upon the Parliament to say that they would upon the same Extract have ordained Govan to be Execute and ratified and approven the Forfeiture contained in this Extract against John Swinton if the Extract had not been both true and warrantable and the truth is the whole particulars that are contained in the said Extract were then recent and fresh in the Memories of a great part of the Members of the Parliament 1661 who had been Members of the Committee of Estates in anno 1651 and who had pronounced that Decreet of Forfeiture against Swinton and others therein contain'd 2o. Swinton in his Answers Written and Subscribed by himself given in to the Parliament 1661 therein endeavours to extenuat his Guilt in joyning with the Usurper Cromwell and going with him to Worcester pretending it was because he was out of the Protection of Law which Words can no otherways be understood than of the Decreet and Sentence of Forfeiture pronounced against him in anno 1651 neither does he in his Answers deny that he was Forfeited in anno 1651 which is a clear demonstration of the verity and truth of the foresaid Decreet 3o. Whereas it is pretended that there is no Warrant upon Record of the said Decreet It is Answered That it is notour and universally known that the Warrants of that year and of several other years of the Registers were lost coming down from London in anno 1660 and that Extracts furth of the Registers make as much Faith as if the Warrants thereof were yet extant the Lords of Session always sustaining such Extracts out of the Registers of these years and refusing to grant Certifications against any Writs that are Registrat these years because the Warrants thereof were lost in manner foresaid and if this Preparative should be sustained or be encouraged to reduce Decreets or Acts of Parliament which are Corroborat by other publick Acts of subsequent Parliaments relative thereto upon Pretences that the Minuts or Warrants thereof are not extant then the most part of His Majesties Prerogatives asserted 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 question and redargued upon the same pretences and therefore the foresaid Decreet of Forfeiture in anno 1651 being unquestionably astructed as to the verity thereof by the Parliament 1661 their homologating the samine in putting the Sentence of Death to execution against Govan by vertue thereof and by their ratifying the samine in so far as concerns Swinton and acknowledged likewise by Swinton in his Answers the same cannot now be redargued upon the pretence of the want of the Records which were lost in manner foresaid To the second reason of Reduction bearing That the King and Committee of Estates for reasons and considerations moving them did restrict the Sentence of Punishment to the said John Hume who was one of the persons forfeited in the said Decreet to the Death which takes off the effect of the Sentence as to Swinton and all the rest till it should be reconsidered by the King and Parliament It is Answered That by this reason appears either the gross ignorance of the Libeller or his disingenuity if not both for the Doom of Forfeiture is most solemnly pronounced by sound of Trumpet and tearing the Arms of those forfeited and by reiterat and ingeminat Clauses forfeiting the Traitors as to Life Heretage and Movables which is exprest and repeated as to John Swinton and the exception is taxative and relates only as to John Hume who by the former part of the Doom was forfeited as to Life Lands and Heretage also and which is evident by the exception which restricts the Sentence as to John Hume that his punishment should only be Death when apprehended and the Escheat of his Movables and the Liferent of his Lands and both Swinton and Govan do not so much as pretend to or found upon any restriction of that Sentence when they were brought before the Parliament 1661 which certainly they would not have neglected if their Restriction had been extended to them and the Decreet and Sentence was considered by the Parliament 1661 as not containing any such restriction in their favours when they did not only ordain Govan to be execute by vertue thereof which was accordingly done but also when they did repell Swinton's Answers as being no ways relevant and did ratifie and approve the foresaid Decreet and forfeited him of new for the new additional and supervenient Crimes whereof he was Indicted To the third reason of Reduction bearing That by the late Claim of Right in the Meeting of Estates It is Declared that the causing Pursue and Forfeit persons upon frivolous and weak Pretences and upon lame and defective Probation is contrair to Law and that the Crimes libelled against John Swinton were such being both irrelevant and calumnious It is Answered 1o. That if the Crimes of Deserting of the Kings Army by a Commissionat Officer and going in to the common Enemy who at that time had invaded the Kingdom and having their residence and dayly resorting and conversing with the said publick Enemy be irrelevant to infer the Crime of Treason then it is not known what can be found relevant to infer that Crime For 1o. by Law and the Custom of Nations de re militari who ever accepts a Military Commission or Charge he cannot at his pleasure dismiss or exauterat himself and Swinton having acknowledged and it being
conceived a prejudice against his King and his Countrey by the Sentence of Forfeiture pronounced against him in anno 1651. which he stiles the hard measure he met with and his being out of the protection of the Law 3o. That he was there personally in Arms such as a Traveler uses to ride with viz. Sword and Pistol which are all the Arms could be carried by any single Horse-man there And altho he denys that he drew either Sword or Pistol or did joyn with any Troop or Regiment yet his being present with the Enemies in Arms is a sufficient demonstration of his joyning with them against his King and Countrey and is per se relevant in Law to infer the Crime of high Treason it being very difficult to prove a mans particular Actings in an Army who had no remarkable Charge and his serving the Usurper at that time is sufficiently cleared by the rewards that the Usurper gave him afterwards And the good Services which are pretended that Swinton did to his Countrey-men at that time is an evident demonstration of his intimacy and interest with the Usurper and which could not be done by a prisoner 2o. As to that Alledgance that the Crime being committed in England it was remitted by the English Indemnity It is Answered that the English Act of Indemnity did extend no further than to the Kings English Subjects and not to any Subjects who were Scots-men for as no Law made by the Parliament of England could hinder the Parliament of Scotland to proceed against Traitors and Rebels who were Scots-men so no Indemnity past in the English Parliament could Indemnity a Scots-man's Crimes or could hinder the Parliament of Scotland from proceeding against them albeit they had been particularly Indemnified by the Parliament of England And all that is now represented for John Swinton in this reason of Reduction being intirely under the Parliaments consideration at the time and by them found relevant and proven to infer the Crime of treason And what is now alledged being then proponed and repelled by the Parliament cannot now be drawn in question And as to which the former Answers are repeited To the last part of the first Reason of Reduction insisted upon against the said Decreet 1661. viz. That the Decreet is lame and defective in its probation albeit it bears to proceed upon John Swintons Judicial Confession yet there is no such Confession extant in the Records of Parliament other than what is contained in his Written defence which are so qualified that it could never be a ground of Forfeiture It is Answered 1o. That a Judicial Confession emitted before so High and Supream a Court as a Parliament makes full Faith without being Subscribed and the assertion of the Parliament and their Act thereupon is a full and sufficient Probation And altho a Judicial Confession emitted before an Inferior Judge such as Commissar or Sheriff does not make Faith unless it be Signed by the Party yet a Judicial Confession emitted before the Lords of Session which is a Supream Court and so marked and Minuted by the Clerk does make as great Faith as if it were Subscribed and Signed by the Party And it cannot be denyed that John Swinton compeared before the Parliament and viva voce confessed these horrid and detestable Crimes of Treason and Rebellion that he was guilty of and particularly of his being in Arms at Worcester with the Usurper against his native King for which he did blame his Ambition in his younger years which prompted him to these Treasonable Acts and as a Remorse and Abhorrence of them he said if they were to do he would rather with the one hand strike off the other than be guilty of them upon which Confession the King's Advocat took Instruments 2o. He did not only confess the Crimes Libelled and insisted on viva voce but in his Answers written and subscribed by himself given in at the same time to the Parliament he did acknowledge the same and altho in his Answers he did endeavour to excuse and qualifie these Crimes to procure the Commiseration of the Parliament that his Life might be spared yet the Parliament did most justly Repel his Answers and proceeded and gave Sentence of Forfeiture against him and the excuses and qualifications adjected are so far from being extenuations of his Crimes that they rather do aggravat the same being Insinuations of the great favour interest and intimacy he had with the Usurper as is evident by the Answers themselves hereto subjoyned So that the Decreet of Forfeiture proceeding not only upon a verbal Confession emitted viva voce But also upon a Written Confession Subscribed by John Swinton himself the same cannot now be Invaliditate or drawn in question upon the pretence that it is lame and defective in its probation The second Reason against the Decreet of Forfeiture 1661. is that the Minuts are Forged and False upon the pretended Grounds following viz. That albeit there be a considerable time interveening betwixt the Minuts dated the 7 of February 15 of May and 12 of July 1661. Yet it appears by ocular inspection that they are all written at one and the same time and with the same Pen and Ink and being compared with the Minuts upon the end of the Inditement Subscribed by Glencairn which are the true Minuts they are much more recent and fresh 2o. All the three Minuts which are on the Margine of the Inditement being Signatures of the Procedure of the Parliament in pleno consessu the first thereof which is on the 7 of February 1661. bears the giving in of the said Inditement against the said John Swinton then Pannel with the former Decreet in anno 1651. and craving that the said Decreet might be Ratified and the new Inditement found Relevant and admitted to Probation The King and the Estates of Parliament are said to ordain before Answer the new Inditement to be given up to John Swinton to see and answer and yet it is evident by the Records of Parliament that the Articles sat the 7th of February and not the Parliament and Ordained the same thing that the Parliament Ordained to wit The giving up of the Inditement to John Swinton and by Robert Hamilton's Diary one of the Senators of the Colledge of Justice and then one of the Clerks of the Parliament It is evident that upon the 27 of February John Swinton 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 before Answer either the stile of Parliament or any Court at that time being introduced since nor was it at all in this case intelligible it being impossible that an Inditement could be considered before it was given up and seen by the party by which it is clear as is pretended that the forsaids Minuts are forged 3o The second of the saids Minuts being dated the 15
many antient standing Laws and Acts of Parliament Decreets of Forfeiture are not to be reduced per modum justitiae upon any pretended nullity of Process till the Crime be purged and that there be a special Remission of the Crime for which the Forfeiture proceeded and albeit His Majesties Bounty cannot be limited to restore any person by way of Grace yet by such a Restitution neither His Majesties Donatar nor the Interest of any third Party is prejudged and it was upon these Considerations that all the former Commissions that were appointed to make Enquiry into this Forfeiture came to no Issue and were rendred ineffectual In respect whereof the Earl of Lauderdale ought to be Assoilzied from the said pretended Reasons of Reduction Follows the Names of these who were appointed in anno 1682 by a Commission under the Great Seal to take Tryal and Enquiry anent the deceast John Swinton's Forfeiture Sir George Gordon of Haddo Chancellor William Marquess of Queensberry Thesaurer John Marquess of Athol Privy Seal James Earl of Perth Justice General Sir David Falconer President of the Session Sir George Mckenzie of Tarbat Clerk Register John Drummond of Lundin Thesaurer Deput Sir George Mackenzie of Rosehaugh Lo. Advocat Sir John Lockhart of Castlehill and Sir John Murray of Drumcairn Senators of the Colledge of Justice John Swinton's Answers to his Inditement given in to the Parliament 1661. written subscribed with his own hand ANSWERS by way of Defence for John Svvinton of Svvinton to the Inditement of Treason whereof he stands accused by the King's Advocat at the instance of the King before the King's Commissioner and Parliament adhering to what was offered by him to the Commissioner the 27th of the last Moneth by way of Information and protesting that if need be is according to the then grant of the Commissioner and Parliament intimat by the Chancellor as President he may be further heard to speak in their presence by way of Information or otherways in obedience to their Command he having liberty and allowance from the Lords doth singly and plainly answer by way of Defence in Write Thus waving all dilator Defenses even such as the Law allows him either as to what might be said to the Informlaity of the Process or to what he might say 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 common Benefit and Security of every Subject to plead specially in this time of peace and settlement As also waving what he might have to say in that known Maxim of Socii criminis And even this way of pleading by Writ and severals of that kind he doth with his own consent without disputing homologat the Jurisdiction of the Court of Parliament not so much as excepting against any one from being his Judge in this matter being willing it should receive a plain and clear issue even in this way being about to give his Answer to this Court thus constitute of the Representatives of King and people whatever may be the debateable Consideration how far the King or people distinctly considered are subject to or above the Law Yet here taking them Collectively there is more to be said for these proceedings that run not so properly in the Channel of Law specially if the Parliament being thus Constitute in these Tryals shall proceed not only by vertue of their Executive Power but also of their Legislative And as this states a vast illimited 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 consider what they do in these 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 subsequent Answers say somewhat to that why he ought to be Assoilzied and acquitted from the Inditement Yet being to answer before a Court that it is like will not look upon themselves as so strictly tyed to the Letter of Laws as the extraordinary Courts of Justice must be as having a large and mixed power comprehensive of Law Equity and Reason and it may be reason of State too so to speak and a power incontrollable to execute their Determinations whether de jure or not he shall leave to the judgment of that in every one of their Consciences wherein as they weigh and consider it in the coolness of their minds they will owne that de jure it is Supream The higher power to which every knee must bow and ought to be subject to in heaven and earth to which the King and people must give an account even the light of Christ in every of their Consciences the Law written in their hearts the Faithful Witness for God that discovers to man his Thoughts that brings him many times after his first sleep to consider what shall be the end of Pride Lust and Vanity that which oppresseth this Just Witness which is the Foundation of Society of all just Laws the vinculum 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 selves and stablisheth that grand Principle of Justice to do as one would be done by is the Foundation of all just Magistracy is the Line and Rule of true Judgment proper to be minded and headed and turned to by the Commissioner and Parliament and every Member of it To this Rule Law and Judge the Defender submits and appeals in this matter even the Light and Witness for God in their Consciences And as to what he shall offer to them of the Law of this Nation which is or ought to be Founded on this Equity or Reason he shall leave it to this Witness near them and in their hearts the Eternal and Ingrafted Word Christ the Light that enlightens every man that is come into the World To this he shall leave it as the last appeal and let him stand Justified or Condemned according as the Judgment shall be given in this Law which is only in this case and as they are constituted capable to bind a Parliament who may it is like look upon themselves as to men and Letter of Laws as Supream which he doth not think unproper or unserviceable for the Parliaments Consideration to be thus offered in limine which they will find of the greater necessity and use 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 Government Magistracy having been so perplexed and involved intrinched upon brangled shattered and a general Consternation The minds of men by reason of these things much estranged engaged in Animosities and Factions and that through their departing from this just Law and principle in themselves So that is impossible for them going by another Rule than this as the Supreme to be
guided in a safe and healing Path so as they may be a Blessing to themselves and the people over which they are and have comfort in their Work when they have done This is his Advocat in all their Consciences and to this he shall commit what he hath to say by way of Defence here to stand or fall to be cleared acquitted or condemned having a place in the Light and power of God to receive whatever shall be the issue of this matter as from his own hand not minding man nor men layed down at quiet in his will standing in that which is out of the fear of man in the fear and dread of the living God And so to proceed to his Answers The Defender denys the Inditement as it is conceived As to the first part of the first Article of the Inditement passing the general part of it and the Acts of Parliament therein mentioned some of them being only Statutory none of them meeting the particulars Charged against the Defender or any one of them strickly taken as all Laws are to be in this case especially and where the Pursuer shews how in particular way of application they do and doth condescend it may receive a particular Answer The Defender doth deny this Article and all of them as they are conceived Yet doth not deny but that he sat in the Parliament 1649. Whether he did Vote to the Rescinding of that Act of Parliament 1648. relating to the Ingagement he doth singly declare That he doth not remember neither can he say how far he Voted or consented to the putting out of any Officer of State Judges or others their places or any thing else particularly Charged in this Article the thing is so long ago but supposing it were clearly proved that he was a Voter in both these or in any thing else Charged against him as acted by him as a Member of that Parliament affirmativè It is offered by way of Defence That he came and sat in that Parliament by a Commission from his Countrey and they were not only owned by the Nation as a Parliament for the time but also by the King in that capacity he receiving Commissioners from them as the Parliament of the Nation Treating with Him as such a Treaty concluded one of the Articles of which was a Ratifying of that Parliament and their proceedings with an engagement to compleat it in a more formal way at his home coming which was done by an Act of _____ of _____ of _____ date particularly by the King and Parliament Much might be said upon other Mediums but this is so strong so full and clear to Assoilzie the Defender from that part of the Libel as it may suffice As to the other Branch of the first Article of the Inditement wherein the Defender is Charged with several other particulars as his Voting to and carrying on the Murther of Montrose Huntly and others and all these Charged upon him as he was a Member of the Parliament 1649. It not being remembred That what was done in most if not in all these particulars was done by that Parliament that sat in the month called March One thousand six hundred and fifty which whatever else might be pleaded to warrand its Inditement was the time appointed by the Act of Parliament of _____ 1648 conform to the Act of Parliament _____ for constituting Triennial Parliaments so his Defense to that part of the Charge is repeating also here that part of his Defense to the former the Treaty and the Act of Ratification past by the King and Parliament that he as he came there by vertue of a Commission from his Country so he came to a Parliament that stood upon a more unquestioned Foot in Law and in these 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 said somewhat towards clearing himself from the Odium that hath been cast upon him in these things and might say more and may if there be opportunity yet this shall suffice by way of Defense To the second Article of the Defenders Charge as to the first part of it he doth simply deny it and admits it of consent relevant to be proven and tho he should be acquitted of this Inditement upon this Tryal he doth hereby consent and declare that if ever hereafter it can be made appear that he was Guilty of betraying his Trust let the conclusion of the Inditement take place against him or the worst of Punishments can be devised As to the second Branch of the second 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 Stirling declare his laying down of his Charge desiring him to intimat the same to the Committee and at the same time did intimat the same to Collonel Gilbert Ker his immediat superior Officer and forthwith Crafurdland was put into his place This he thinks he is able to prove instanter if need beis as also before ever he went to that part of the Country where his Estate lay and where his Business called him he was upon the place where Collonel Ker's Regiment was where he actually did see the foresaid Crafurdland in his Charge he being occasionally there for clearing some things with his Officers and others relating to his former Charge this was not under some Weeks if not Months after he had layed down his Charge and the other in the possession of it so that it can never be said with any colour that he deserted 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 also true that his Occasions leading him towards Berwick-shire where the only Estate he had lay he was Seased upon and made Prisoner by a Party of the English carried to their Generals Quarters and having given an account to him of his Occasions in these parts he did declare to him that tho he was his Prisoner yet he should have liberty upon his Parol or so to go to his Lodging and about his Affairs That he was taken Prisoner and thus brought in he offers him to prove if need be and tho through the General 's Permission he had liberty to go into the Country with his Family and as the necessity of his own Affairs or the Countreys did require whose Condition then was much distracted and oppressed He came to Edinburgh sometimes he having a ready access to the General through the forementioned opportunity and he forward enough to oblige him which he can truely and singly say that according as the State he was then in could admit he laid him out to the outmost for preserving of that part of the Country and every individual in it as he had access
and opportunity and if this can be called joyning with the Enemy as this Case is circumstantiated or that by any Law of God or Man it can ever be charged upon him as a Guilt specially to infer the conclusion of the Inditement let all sober 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 Worcester and as he was there it is also true he went thither through the earnest Intreaties and Importunities of him that though he doth ingenuously declare that he cannot say that he did use that as an Argument could have commanded him along with him as his Prisoner and whose Prisoner he was upon the matter and this after he had then met with that he then looked upon as hard measure from the King and Country out of the protection of Law these 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 shall be made our that ever he joyned so much as in any Troop or carried any Charge or that in any occasion there the Battel or otherways he did draw his Sword or loose a Pistol he admits all or every one of these relevant of consent to infer the conclusion of the Inditement It is known how greatly useful his there being was to his Country-men not only of his nearest Relations whom he found deadly wounded but many others the particulars whereof needs not to be mentioned he having indeed a sufficient reward in the work it self doing it upon a free and single intention never thinking of making use of it upon such an occasion as this Only this he can say in the presence of the searcher of hearts that he thinks if the Parliament should find the Inditement against him upon that single Head of being at Worcester as he doth look upon that as Principal and all the rest but Accessories as it were even in the intention of the Libeller the Sentence past as to Life and Estate and it ready to receive its last Consummation he could receive it and ly down under it with a more chearful heart than he enjoyed any time he was at Worcester to see and be Witness of the reproach of his Countrey and the distress his Countrey-men was under His Defence is that it was in England the Crime what-ever it was was committed where it is properly try able and where the King in whose Name and by whose Advocat this Inditement is prosecute hath Indemnified the Defender from it And that he hath so done will appear by the express words of the 5th Clause of the Act of Indemnity And tho it may be Objected that this is an English Law It is adduced in the case of Crime committed in England tryable in England pardonable in England pardoned in England and that by him against whom the offence was committed what-ever it was the Defender actually a Prisoner in England and from thence sent hither a Prisoner brought hither in an English Frigot so that as to this Crime in this case as it is circumstantiated it is pleadable and by the Defender Pleaded as his Defence And this is mainly to be minded in this particular of the Inditement That the Defender when he could have shunned it was taken in England was kept 19 Weeks and upwards closs Prisoner there was sent from England hither by the King's Authority to receive a Tryal in his own Countrey for such things as he is chargeable with at the instance of the King as acted here in his own Countrey For it can never be understood that the King in Honour Justice or Equity would send him down out of England to be tryed for his Life and Estate here for a Crime committed so many years ago in England and which he hath absolutely and freely Remitted there as fully as if the Defenders Name and Sirname were particularly exprest as Indemnified and that particular Act of his being at Worcester expresly remitted by reason whereof he ought to be Assoilzied 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 deny but he was in a Parliament of England by a Call and Commission from his Countrey the Nation having so far submitted to the Union with England that they sent their Deputies to several Parliaments By what Law this is Criminal specially as it is circumstantiated when the Pursuer shews it may receive an Answer To the other Branch of the Article The Defender doth ingeniously declare he doth not remember that he was at any such Vote of renouncing the King and his Family neither doth he think he was however if he was it was in England And if it should be proven as he is confident it will never be he repeats his Defence adduced in the Case of Worcester To that Branch of the Article His receiving Imployments from Oliver Cromwel and others as one of the Commissioners for Administration of Justice and one of the Council That part of the Article is so far confest by him that he was in these Imployments but never in these nor in any till his Countrey Nationally had submitted stopping for the good of the Nation to the necessity of the time to the Authority of England And as things were then stated he doth believe it was look'd upon by the Nation as for the good and service of the Countrey that Countrey-men were admitted to and did act in these Imployments and that it was look'd upon as no dis-service or disadvantage to his Countrey at that time that the Defender was one And he can truly say that the service of his Country was none of the least inducements to engage him in the accepting of and continuing to these Imployments And if ever it can be made appear that he sought after one or either of them let it infer the Conclusion of the Summons as relevant of consent What the tendency of his way in these Imployments was towards the service or dis-service of his Countrey let his greatest Enemy Witness in this day he shall not in these things bear Witness for himself the more narrowly and particularly his way in these things shall be inquired into it shall be the less disadvantage to him And as to the insinuations of the great profits and advantage he hath had he shall only give it this Answer which is single truth that notwithstanding what-ever he received one way or another he can solemnly declare and doth that tho he were not chargeable by the King nor any other as to his Estate or any Charge relating thereto upon the account of his acting in these things but were cleared of all these he is two thousand Pounds Sterling and upwards more in debt than he was left by his Father when be died in the year 52. occasioned through his Expences in tumbling about in these matters This he mentions only