of Estates 1651. being convinced how groundless and illegal the said Decreer was caused raise a new Inditement against Swinton then a Prisoner in the Tolbooth of Edinurgh before the Parliament 1661. and therein amongst other Crimes which he caused charge Swinton with he causeth libel the very same Crime in the very same words that was libelled against him in the Decreet 1651. giving him withall the Designation of John Swinton OF SWINTON Which was an implicit passing from the said Decreet and a most evident Demonstration that it was then looked upon by him as no Decreet It being obvious both in Law and common Sense that a Man once forfeited cannot be again forfeited seing by the first Forfeiture in the Construction of Law he is no more in beeing and can have no Estate to forfeit Upon all which Grounds it is manifest that the said pretended Decreet 1651. is null and void to all intents and purposes AND the said Decreet 1651. being null the Duke of Lauderdale's Gift of Forfeiture as being only founded upon that Decreet is null and must fall in consequence Nor can it subsist by the pretended subsequent Decreet of Forfeiture if any such Decreet had truely been in the year 1661. because the Gift is anterior to it the said Gift being dated the 25 of May 1661. and the Decreet 1661 bearing Date the 12 of July thereafter And by the CLAIM OF RIGHT it is declared that the disposing of Forfeitures before Sentence is contrary to Law AND AS TO THE PRETENDED DECREET OF THE PARLIAMENT 1661. The same is null and ought to be reduced 1. Because the same proceeds either upon weak and frivolous Pretences or upon Pretences false and calumnious and is destitute of all Probation whatsoever For as to the first Article of the Inditement whereupon it proceeds bearing That Swinton sate and voted in the Parliament 1649. in which the Act concerning the Engagement forfeited and turned out of Office It was not relevant Because no Man can be not ever was called in question for sitting and voting in a Parliament or-acting therein in a Parliamentary Capacity Seing what is done by a Parliament is not to be understood the Deed of any single Person but of the whole representative Body of the Nation And the King did so far acknowledge that Parliament 1649. that he admitted Commissioners from it as from the Representatives of the Kingdom And by his Treaty with them he was obliged to ratifie the Proceedings of the Parliament after his coming home Which was accordingly performed by him in a Parliament held after his Return in the year 1650. Neither did it appear that Swinton voted for the rescinding the Act in relation to the Engagement 1648. nor for the forfeiting or putting out of Office the Persons mentioned in the Inditement And as to the second Article bearing Swinton's holding Correspondence with the Vsurper by writing to and receiving Letters from him or by sending to and receiving Messages from him by word of Mouth It was absolutely denied and neither was nor could be proven it being in it self altogether false and calumnious And whereas in the said second Article it is alledged as in the first Decreet that Swinton deserted his Imployment in the King's Army and went in to the Enemy the former Answer to the said first Decreet is oppon'd And as to the thrid Article That Swinton did go along with the Usurper's Army to Worcester and fought there against the King at least was with the Vsurper there in Arms. and which is the onely Crime insisted upon by the King's Advocate against him It was likewise denied as it was conceived For if it could have been made appear that Swinton was at Worcester he could have instructed that he was there as a Prisoner and not as a Souldier Neither could it ever have been proved that he acted any thing there in a hostile manner But on the contrary was ready on all occasions to serve his Countrey to the utmost of his Power in that sad Conjuncture In which two of his Brothers in the King's Service Mr. Robert Swinton who commanded a Troop of Horse and Mr. Alexander now of Mersington and one of the Senators of the Colledge of Justice had the fortune the first of them to be kill'd and the other taken Prisoner And the good Offices he did to many of his Countrey Men at that time it is hoped are not yet forgotten And if he had been in Arms as he was not yet this being a Crime alledged to have been committed in England he was secured by the English Act of Indemnity And as to the fourth Article that Swinton did sit and vote in a Parliament in England declaring the King or any other of the Royal Family incapable to succeed in the Royal Government and as a Reward of his Service was appointed one of the Commissioners for Administration of Justice for which he got a considerable yearly Sallary out of the puclick Revenues If it could be made appear that he did sit and vote in any such Parliament yet that was no Crime he being there as one of the Commissioners from Scotland after the VNION and after the three Kingdoms were under the Government of the Usurper and erected in a Common-wealth And it was denied that he was present at the passing of any Act against the King and the Royal Family And if he had been present as he was not it was when the Government was in the hands of the Usurper and Common-wealth and it fell under the Act of the English Indemnity And as to his being one of the Commissioners for administration of Justice and having a Sallary for it He did not accept of that Imployment before the Government was settled in the hands of the Usurper and Parliament of England to which the whole Kingdom of Scotland had then submitted And it is very well known what good Service in accepting of that Imployment he did to his Countrey it being the Countrey 's Advantage that such Places of Trust were in Countreymens hands rather than in the hands of Strangers who understood nothing of the Laws and Customes of the Kingdom And as for any Sallary he got thereby he was never the richer for it but on the contrary it is very well known he was much more in Debt in the year 1660. than he was when he entered upon that Imployment AND as the said pretended Decreet 1661 proceeds upon frivolous and calumnious Pretences so the same is made to proceed upon so lame a Probations as it is without any Probation at all For albeit it bear to proceed upon Swinton's judicial Confession there is no such Confession in the Records of Parliament other than what is contained in the vvritten Defense given in by him under his Hand before the Parliament which is so qualified as it could never be a ground of Forfeiture against him 2. The said pretended Decreet 1661 is null Because the Minutes on the Margent of the said
THE CASE OF JOHN SWINTON OF SWINTON In Relation to HIS FATHER'S PRETENDED FORFEITURE Upon pretext whereof the Estate of Swinton hath been unjustly Possess'd by the late Duke and this Earl of Lawderdale ever since the year 1660. WITH The Reasons of Reduction of the said Forfeiture now Depending against the said Earl at the Instance of the said John Swinton BEFORE THE PARLIAMENT Printed in the Year MDCXC THE Duke of Lauderdale having after the late King Charles's Restauration first entered to the Possession and then obtained a Gift of the deceass'd Swinton's Estate upon pretence of his being forfeited by a Committee of Estates for his being with the English in the Year 1651. By which Right and a supervenient Decreet of Forfeiture pretended to be given against Swinton for the same Crime by the Parliament 1661. he had that interest and power in this Nation to possess the said Estate as long as he lived and at his Death to leave it in Succession to his Brother this Earl of Lauderdale who hath possessed it ever since Albeit there was nothing could ever be made appear to evince that there was any such Forfeiture against Swinton in the Year 1651. but the pretended Extract of a Decreet in absence elicit from an Vnder Clerk ten years after of which there was never the least Warrant upon Record And that as to any Forfeiture in the year 1661. there was only a Process then intented that not being insisted in never came the length of a Sentence But to supply this Defect Swinton having objected it to the Duke of Lawderdale the later end of the year 1673. there were Methods taken in the Month of January 1674. to procure Minutes to be made up by a Clerk as if a Sentence of Forfeiture had followed upon that Process 1661 and thereupon a Decreet was got extracted 13 or 14. years after Tho this was thought so ticklish a thing at that time by the then Clerk Register as not daring to adventure upon it without extraordinary Precaution he first dealt with the late Earl of Crawfurd who presided in that Parliament when the Chancellor was absent to sign the Minutes as in praesentia Dominorum Parliamenti albeit 13. years after that Parliament at least that Session of it was no more in Beeing and then caused application to be made in behalf of the Duke of Lauderdale to the Lords of Session to give their Warrant for extracting what he was conscious to himself was so unwarrantably done That part which the Earl of Crawfurd a Person of such known Honour and Integrity was prevail'd with to have in so unjustifiable a Practice his Lordship had the Justice to leave attested by him before he died in a Missive Letter all written with his own hand and deposited by him in the hands of the Lady Helene Sinclair his Daughter to be delivered by her after his Death as it punctually was to the deceass'd Swinton to whom it was directed Which Letter is conceived in these terms TYNINGHAME the 8 June 74. SIR YE were pleased lately both your self and by some others to say that I had done you an Injury in signing the Minutes of your Process especially being out of all Imployment when I did it I should think my self very unfortunate if I did any thing willingly to prejudge you or any Man alive Therefore I shall tell the Truth in point of Fact now not being able to speak with you when ye desired me My Lord Register sent down a Servant to my Lodging in James Deans's House some day in January or February 74. and said If I were within he would come and speak with me I bid his Man tell him I was presently going out and should call to him up the way When I was near the length of Cross I met him in his Coach I made mine halt and went out as he did to the Plain Stones He told me I behoved to go to some House So we went to Patrick Steel's House where he took out a long Scroul and said That was your Process I told him I knew nothing of it it was so long ago that I did remember nothing He answered There is the Chancellor's Subscription to what passed before he went to England * * Meanning the Minute before the Articles mentioned hereafter pag. 13. and I being President after behoved to sign it for it could not be presented then I going presently to London I first said Being out of all Office I thought it unfit for me to do Next I said some of the Minutes as the Inditement was were of old Writ and a great deal thereof new He said Both were Mr. John Hay of Haystoun's hand and he was answerable for the Minutes Vpon this Representation I did it and I have told you the naked Truth upon my Honour and Conscience and I did it without end of advantage or prejudice to any But being pressed to it as my Duty I hope ye will believe this ingenuous Dealing and keep no more prejudice or misunderstanding against Your affectionate Servant Crawfurd Lindesay Addressed on the Back For John Swinton These It might be thought strange why the Duke of Lawderdale being a Man of such Power during the late King Charles's Reign and knowing his Title to be so defective as it was should not rather have endeavoured to have had the deceass'd Swinton truely forfeited either by causing insist in that Process intented before the Parliament 1661. or causing intent a new one rather than to have had recourse to such indirect and dangerous Methods to support a supposed Forfeiture whereof there either was no Warrant upon Record or whereof the Warrants upon Record were false But the truth is Swinton's being taken and detained Prisoner by the ENGLISH in the year 1651. being all the ground there was for the Crime alledged against him at that time for which he was pretended to be forfeited and continuing in that state till after the Fight at Worcester and subjection of the Scotish Nation to the English the Duke durst not for all his Power adventure to put a Crime so calumnious to the Trial of a Parliament as knowing Swinton would have been able to have cleared himself and consequently able to have recovered an Estate out of his hands that he had got himself thus possessed of and could not but be very loath to part with The Letter writ by the Earl of Crawfurd having been shown to the late K. Charles and the intire matter of Fact represented to him as it truely was he in the year 1682. granted Commission to the then Lord Chancellor and several other Persons to make Inquiry into the whole Procedure concerning the said Forfeiture and to inspect the Records of Parliament in relation to the same and to make Report thereof to His Majesty Pursuant whereunto the Records of Parliament were inspected And as there was nothing at all found as to the pretended Decreet of Forfeiture in anno 1651. so as to that
of anno 1661. all that was found did from ocular inspection and many other Circumstances concurring with the Earl of Crawfurd's Letter and even from the Records of Parliament themselves make it manifestly evident to be false However the Earl of Lauderdale had that influence upon those to whom the Trial of this Affair was recommended at that time as rendred the further Prosecution of the Commission given them ineffectual Nor was John Swinton who now represents his Father nor his eldest Brother before him in a capacity to quarrel otherwise their Adversarie's Title so long as there stood pretended Decreets of Parliament in their way of a Forfeiture how false and groundless soever against their Father Thus the Estate of Swinton hath been unjustly possessed by the Duke of Lawderdale and the Earl his Brother for the space of near 30 years for tho the Duke got his Gift of the pretended Forfeiture of that Estate in the year 1661. yet he entred to the Possession of it in the year 1660. eight Months before the Gift was granted During all which time the true Proprietars have been debarred from access to an Inheritance transmitted to them from their Ancestors by an uninterrupted Succession of above 600 years And for the Recovery whereof upon the present Revolution this Swinton the Representative of the Family being to make Application to the PARLIAMENT now sitting as the Supreme Judicatorie of the Nation and in order thereunto having after the first Adjournment intented a Reduction before the same of the two pretended Decreets above mentioned of his Fathers Forfeiture and the Earl of Lawderdale having been cited therupon by a Warrant of the Council the Signet not being open and the Rents of the Lands by the Council's Order sequestered in the Tennents hands during the Dependence the REASONS of the said Reduction are here subjoyned REASONS OF REDVCTION at Swinton's Instance against the Earl of Lawderdale THE PRETENDED DECREET OF THE COMMITTEE OF ESTATES 1651. whereupon the Duke of Lauderdale's Gift is founded cannot be respected as a Decreet and Doome of Forfeiture and ought to be reduced 1. Because it is a Decreet in absence not subscribed by the Clerk Register for the time but by Mr. Thomes Henrison pretended to be Clerk to that Committee from whom a pretended Extract thereof was elicit in the year 1661. ten years after and whereof there is no Warrant extant in the Records of Parliament 2. Though it laboured under no such Defect yet it being against several other Persons aswell as the deceass'd Swinton and particularly against one John Hume accused and convict for betraying the Castle of Edinburgh to the English It bears an express Declaration That the King and Committee of Estates for Reasons and Considerations moving them did restrict the Sentence and Punishment to the Execution of the said John Hume to the Death Which clearly takes off the effect of the Sentence as to Swinton and all the rest till it should be reconsidered by the King and Parliament 3. By the late CLAIM OF RIGHT it is declared by the MEETING OF ESTATES That the causing pursue and forfeit Persons upon frivolous and weak Pretences and upon lame and defective Probation is contrary to Law And it is evident that this pretended Decreet proceeds upon most frivolous weak and irrelevant Pretences The Crime therein libelled against Swinton being That be hawing a Charge in the King's Army deserted the same and went in to the Enemy and had his frequent Residence with and resorted to the Enemy in the Town of Edinburgh Cannongate and Leith carrying has Sword about him Which as libelled was both irrelevant and calumnious For he did not desert the King's Army but being Lieutenam-Collonel of a Regiment of Horse under the King and at that time his necessary Occasions calling him over to his House in the Merse he gave up his Commission as he or any man in such Circumstances might lawfully do and one Crawfurd of Crawfurdland was immediatly thereupon put in his Place And as he crossed the Water several Weeks if not Months after he had thus quit his Charge and Crawfurdland had got it being intercepted by a Party of the English and carryed to their General 's Quarters he was for some time detained there a Prisoner and thereafter upon his Parole had liberty to go home Which neither in Sense nor Reason nor in the Construction of Law could be understood a deserting of the King's Army and going in to the Enemy And that he resorted to and resided with the Enemy in Edinburgh Cannongate and Leith was a most frivolous and absurd Pretence to infer the Crime of Treason For these Places and the greatest part of the Southside of Forth being then under the Enemie's Power it could infer no Crime much less the Crime of Treason against any who had occasion for their lawful Affairs to come where the Enemy was that they resorted to the Enemy or conversed with them For if that had been relevant the most part of the Inhabitants of this side of Forth might have at that time been forfeited upon the same ground And certainly simple Converse and being present with an Enemy is not relevant to infer a Crime unless it could be made appear that the Party so conversing and present joyned with the Enemy in Counsel or Acts of Hostility against the State which is neither libelled nor could be alledged in this Case And as to Swinton's having a Sword about him when he thus resorted to and conversed with the Enemy he being a Gentleman and a Prisoner upon Parole had liberty to wear his Sword and his doing so could infer no Crime against him unless it had bee libeled that he had whilst he wore it used it as an Enemy 4 As the said pretended Decreet proceeds upon frivolous and irrelevant Pretences and so upon that Head falls under the foresaid Article of the CLAIM OF RIGHT It falls under the same Article by the Defect of Probation For the said Decreet being a Decrect in absence neither condescends as to Swinton upon Witnesses that were examined against him nor upon what they deponed as all Decreets of this nature where Parties are not found guilty by their own Confession ought to do but only bearing That the King and Committee of Estates had found the foresaid Pretences libelled against Swinton relevant and SUFFICIENTLY proven without expressing what way the same were proven or bearing even so much as that Witnesses were adduced at all in the Probation Neither is there the least vestige in the Records of Parliament of any Probation whatsoever led any manner of way against Swinton in this Matter So that the whole Probation in this pretended Decreet as to Swinton resolving in the simple Assertion of a Clerk without any authentick Document of the Probation upon Record is in Law no Probation at all 5. The Duke of Lauderdale after he had obtained his Gift of Swinton's Forfeiture founded upon the pretended Decreet of the Committee
Inditement which are the Warrants thereof are absolutely false and forged What is evinced from the following grounds First The said Minutes bearing Date 7 February 15 May and 12 July 1661. and so being of a considerable interval of Time one from another are nevertheless written at one and the same time and as by the same Hand so with the same Pen and the same Ink and by comparing the Ink wherewith they are written with that of a Minute on the foot of the Inditement signed by the Earl of Glencairn as Chancellor of the same Date with the first of them viz. 7 Feb. 1661. and which is the only true Minute extant in the Process it is evident the Ink of the Minutes on the Margent is a great many years recenter Secondly All the three Minutes on the Margent of the Inditement being Signatures of the Procedure of the Parliament as to this Affair in plain Parliament the first thereof 7 Feb. 1661. bears the then Lord Advocat's giving in the said Inditement vvith the former Decreet against Swinton then Pannel and craving that the said Decreet might be ratified and further that the said new Inditement might be found relevant and admitted to his Probation the King Estates of Parl. are said to ordain BEFORE ANSWER the new Inditement to be give up to Swinton to see and answer And yet it is evident by the Records of Parliament that the Parliament met not at all that day but only the Articles And by the true Minute on the foot of the Inditement the said 7th of February 1661. the Lords of the Articles ordained the same thing which the Minute on the Margent falsly says was ordained by the King and Estates of Parliament viz. that the said Inditment should be given up to John Swinton of that Ilk to see and answer and as it accordingly was the Copie thereof under the Advocat's hand being delivered to Swinton with these words at the foot thereof written by one Alexander Reid the Advocate 's Servant at that time and signed by Mungo Murray Ormand Pursevant Edinburgh 7. Feberuary 1661. It is appointed that this Inditement be given to John Swinton and he to ansvver upon Tuesday come a fourtnight being the 26 of this Instant Agreeable whereunto a Diary of the Proceedings of that Parliament 1661. written by Robert Hamilton one of the present Senators of the Colledge of Justice who was then one of the Clerks of Parliament bears that upon the 27 February John Swinton of that Ilk having formerly received his Inditement vvas brought that Day to the Bar and after his Dittay vvas read he vvas appointed that day fourtnight to give in his legal Defenses So that it is manifest that the Parliament not sitting on the 7th of February and Swinton that day getting his Inditement by Order of the Articles to answer 14 days after the first day of his Appearance before the Parliament behoved to be the Day mentioned in Robert Hamilton's Diary and consequently that the said first Minute on the Margent of the Inditement 7 February 1661. is altogether false Neither was the term made use of BEFORE ANSWER either the Stile of Parliament or indeed of any Court at that time it being a term introduced long after 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 Thridly The second of the said Minutes bearing Date the 15 of May 1661. is manifest from ocular inspecton to be false and that it and the other two being writ all at the same time behoved to be forged after the year 1670. For when 〈…〉 that writes the Minutes was writing the Ciphers of the Year as thinking upon the year wherein the said Minutes were 〈…〉 by him which appears by the Earl of Crawfurd's Letter behoved to be the year 1674. he hath first written 167 and the taking himself and finding his mistake he makes the Cipher 7 a 6. and adds the Cipher 1. to it to make it the year which the Minute behoved to bear viz. 1661. the vitiat Correction standing in the Minute thus 1661. Into which mistake a Man writing after the year 1670. might easily fall but it is obvious to Sense that no Man could have fallen into such a mistake writing before the year 1670. 2. By this Minute May 15. Swinton is made appearing and judicially confessing that he went with Cromwel and his Army to Worcester and was with him in that Battel whereas there was no such judicial Confession made which certainly if made had been taken under Swinton's hand and subscribed by the President of Parliament neither of which were done And Robert Hamilton's foresaid Diary bears only that the said 15 of May Swinton's Dittay with his Ansvvers vvere read before the Parliament in his presence and he also heard speak verballie for himself and that the Lord Advocate opponed the Dittay and produced the former Decreet of Forfeiture against him which de facto was never produc'd till now tho the first Minute falsly bear it was produc'd the 7 Feb. and which former Decreet the Pannel desiring to see the Parliament assigned him Friday come eight dayes to see and say vvhat he could say Which last part the foresaid Minute doth also bear viz. That the Pannel was ordained to see the former Sentence of Forfeiture and to answer Friday come eight dayes being the 24. of May but with this difference that the Minute bears upon the Pannels desiring to see the said Decreet it was then given up to him Whereas it is evident by the Copy of the said Decreet delivered to Svvinton by the said Alexander Reid the Advocate 's Servant that it was not delivered to him till the 17 of May it being so marked upon the back with the said Alexander Reid's hand viz. That it was given to Svvinton upon the 17. of May to answer the 24. By all which it is evident that Swinton did make no such judicial Confession the foresaid 15 of May there being no vestige of it either under his own or under the President 's hand extant in Process And it being most absurd after a judicial Confession which in Criminals is both Proof and Condemnation since confessus pro condemnato habetur that any further Day should be assigned to the Pannel for Defense 3. This Minute of the 15 of May 1661. ordains Swinton to see and answer as said is against the 24 of May. And yet neither doth the Decreet bear that Swinton was again called nor any thing at all of this Matter of Fact that he was ordained to see the former Decreet upon the 15 of May and to answer thereunto against the 24. which these who framed the Decreet industriously omit as foreseeing the inserting thereof would have inferr'd a Nullity against it Nor was Swinton ever again called or brought before the Parliament either that Day or any time thereafter Fourthly As to the thrid and last of