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 Ʋnder 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 [Page 4]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.
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 [Page 5]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. Ʋpon 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,
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 [Page 6]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) [Page 7]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 REDƲCTION 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 [Page 8]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.
[Page 9] 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 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 [Page 10]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 Ʋsurper, by writing to, and receiving Letters from him, or by sending to, and receiving Messages from him by word of Mouth; It was absolutely [Page 11]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 Ʋsurper 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 ƲNION, 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 [Page 12]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 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, [Page 13]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, [Page 14]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 [Page 15]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 the said Minutes upon the Margent of the Inditement, which is made to be upon the 12. of July 1661. and which is the principal Minute whereupon the pretended Decreet of the Parliament 1661. is founded; the Falshood thereof is most manifest: in that 1. It makes Swinton compearing that Day as a Pannel, whereas it is certain the did not appear that Day, nor at any time after the 15. of May. 2. By this Minute not only the foresaid pretended Decreet of the Committee of Estates 1651. is ratified, but Swinton is declared of new guilty of the Crime of Treason, upon his judicial Confession. And yet there is no such judicial Confession extant, nor was there ever any such Confession made by him, but what was so qualified as cleared him 3. It makes the Parliament ratifie the said pretended Decreet 1651. without his being heard upon his Defense against the same, tho a Day was assigned [Page 16]to him for that effect. 4. The said Minute has none of the Solemnities of a Sentence of Forfeiture for Treason, seing it does not bear, READ, VOTED, TOUCHED with the Scepter, or any Warrant for Publication by sound of Trumpet, or for tearing of Arms: which are the ordinary and indispensable Solemnities in use to be adhibited, in the pronouncing of Sentences and Dooms of Forfeiture in Parliament. And the Signatures of which Sentences and Dooms of Forfeiture, after the voting and touching thereof, as always written upon a Paper apart, distinct from the Process, and signed by the Chancellor, or President of Parliament, and what is punctually observed inall the Forfeitures truely pass'd in this Parliament, as is evident from the Records. No such thing being to be found in Swinton's Case: what doubtlesly would not have been omitted, if any Doom of Forfeiture had truely passed, by VOTE of Parliament, against him.
Fifthly, All the said three Minutes are subscribed by the late Earl of Crawford, as President of the Parliament 1661. with these Letters adjected to his Subscription, J. P. D. P. as if subscribed by him in that Parliament, in praesentia Dominorum Parliamenti: and the Earl's Letter, which a litle before his Death he wrote to the deceass'd Swinton, in the year 1674. discovers not only that they were not signed by him till then, which was 13 years after, but that they were not so much as written till that time▪ And the Earl being a Person of such untainted Honour and Reputation, as he was known to be, his Testimony alone in this matter of Fact (so ingenuously declaring the manner how he was prevailed with to sign the said Minutes at that time (and what scruples he had against the doing thereof, when he did it) is sufficient if there were no more, to convell the truth of these Minutes, and a convincing Demonstration to the world, of their Forgery; and what undue Methods were taken at that time-to perpetuat the Ruine of so antient a Family.
Sixthly, And yet there is this further, and which is an Argument unanswerable of the falshood of the said Minutes, whereupon the said pretended Decreet of the Parliament 1661 is founded. That after they were thus made up by Haystoun and the Earl of Crawsurd's Subscription impetrat thereunto in the manner narrated in his Lordship's Letter, [Page 17]Sir Archibald Primerose the then Clerk Register thought himself not in tuto to give any Extract therof under his Hand to the Duke of Lauderdale, till upon a Petition given in by the Duke to the Lords of Session, bearing, that the said Sir Archibald scrupled to give any such Extract, he was ordained by them to do the same: it being impossible to imagin so knowing a man as Sir Archibald Primerose was, could have any other reason to scruple at the doing of a thing of this nature, whereunto the duety of his Office oblig'd him, (especially to a Man of such Power as the Duke of Lauderdale then was,) unless it had been that he was conscious to himself of the falshood of those Minutes, which to gratifie the Duke, he had perswaded the Earl of Crawfurd to sign so many years after the Parliament 1661.
FROM ALL WHICH, it is evident upon how lame and defective a Title the Estate of Swinton hath been possess'd by the late Duke and this Earl of Lauderdale, these 30 years by past. The pretended Decreet of the Committee of Estatees 1651. whereupon the Duke obtained his Gift, having proceeded upon such vveak Pretences, and defective Probation, and look'd upon as so insignificant, that it was pass'd from by Intenting of a nevv Inditement for the same Crime, before the Parliament 1661. And albeit a Sentence neither did, nor could pass upon that Inditement (after a Term was assigned by the Parliament for a further Hearing) till Svvinton had been FURTHER HEARD, which he never vvas; a Decreet nevertheless is made up on false Minutes, as pass'd in that Parliament, ratifying the former Decreet against him, and forfeiting him of new, (which are terms inconsistent in Law.) And neither the Duke of Lauderdale, nor this Earl, having the least colour to justifie so horrid a vvrong, or the oppression and hardship the deceass'd Swinton and his Children have been thereby exposed to during so long a tract of time, with the loss his lawful Creditors have thereby sutain'd; except the sole Pretence of Swinton's having possess'd a part of the Estate of Lauderdale, during a few years of the English Usurpation, tho the yearly Rent therof was far within one half of the yearly Rent of the Estate of Swinton: and as to which this Svvinton, who now insists for Recover of his Father's Inheritance, being content to allow [Page 18]all that ever his Father intrometted with of the Estate of Lauderdale the first end of the Earl and his Brother's Intromission with the Estate of Svvinton (which will be of ten times a greater value;) IT IS HOPED the PARLIAMENT ex Justitia, will REDUCE the said two pretended Decreets, and Gift of Forfeiture, with all that he followed thereupon, and RESTORE the Swinton IN INTEGRƲ [...] against the same.