THe deceast John Rochead of Craigleith, eldest Brother to the said Sir James, in his Contract of Marriage with Kathrine Trotter his Lady, is obliged to provide his Lands to his Heirs whatsomever, and coming to dy about November 1673. years, he leaves only one Child, a Daughter of the Marrige, whom in his Testament he names his Executrix and universal Lega­trix, and leaves to his Lady 6000. merks of Legacy: and farder appoints her sole Tutrix to his said Daughter, recomending the Care and Education of her very particularly and earnestly.

And farder, there is a Clause interlined in the Testament, whereby he or­dains his Daughter to match with his said Brothers eldest Son, if it shall please the Lord to spare her, the Daughter being about that time scarce nine years of Age, and Sir James his eldest Son about three years younger.

After the Fathers Decease, the Lady Craigleith as sole Tutrix takes upon her the Care and Education of her Daughter, and performs it with all Tenderness, and when her Daughter grows up to almost twelve years of Age, thinks how she may be disposed upon for her best Advantage, but Sir James laying hold upon the Recomendation in his Brothers Testament, touching his Daughters Marriage with his Son to make all sure, Impetrats from the Privy Council, a Warrand for sequestracting the Daughter in the Family of the Bishop of Edin­burgh, without ever calling or hearing the Mother sole Tutrix, or any other Party concerned, which Warrand being evidently very summar and undoub­tedly Impetrat by the great Moyan Sir James, then had with some principal per­sons in the Council, and the effect of it being to pull an only Daughter out of her Mothers Arms, to whom her Father had so earnestly recommended her, and to expose her to the will and pleasure of Sir James, her next Heir appearand, the Lady did not think her [...]self obliged to comply with it, besides the Sur­prize of it was so amazing to her young Daughter, that she cryed most bitterly and hung about her Mothers Neck, when the Intimation of the Order was made to her, crying out that she should not leave her Mother, nor ever marry Sir James's Son, and so slipt out of her Mothers House; and her Mother obser­ving her Daughters Aversion, & many other things not proper her to be comme­morate, and in a word being desirout to disposs upon her Daughter, as both the ill Consequences of a constrained and unpromising Marriage might be evited, and the Fathers Recomendation far more effectually satisfied, makes up and concludes the Marriage betwivxt her Daughter and Prestoun-Grange now her [Page 2]Husband, whom all must now grant to have been a most proper and advanta­gious Choice.

But there being a necessity to have the Marriage privatly celebrate, because of Sir James his Power and Influence for the time, the Parties go to the Bor­der and are there married by a Non-conform Minister, whereas Sir James Stor­ming highly conveens, not only the Lady Craiglieth with her Daughter, and Prectoun Grange her Husband, but also Henry Trotter of Mortoun-hall, and Pre­stoun-Grange elder: and libelling them before the Council upon an Act of Coun­cil made in the year 1668. whereby it is declared, that such as take away any young Gentle-woman within Age contrary to the Councils Commands should be should be punished as they should think fit: and that such as contract Marriage with them should be punished by Fines equivalent to their Tocher. and upon the Councils foresaid Order for Sequestration, and likeways making mention of the Fathers Testament and Recomendation, & that it was by his procurement that the 6000 merks of Legacy was left to the Mo­ther, and yet she, and her Complices had sent her away to the Border to be married there to Preston-grange, by an outed Minister, to the high Contempt as he alledged of Authority, he obtained the Lady to be Fyned in no less than 6500 merks, and the rest in 3500 merks, and 9000 merks to be given to himself, for his pretended Damages, beside the Legal Fine of 1000 merks im­posed upon Preston-grange, for his clandestine Marriage, and accordingly all these Fines were payed.

But it being declared by the Claim of Right, that extraordinary Fines are contrary to Law, the Lady Craigleith hath now appealed to the Parliament, and obtained a Reference to the Commission for Fines and Forefaultures, to have the same there tryed and examined, in order to her Redress, and that she and Prestoungrange have good reason to demand this Redress, appears.

First, because the foresaid Act of Council 1668, was made upon the occasi­on of a particular case of a young Gentlewomans being carried away without the consent or knowledge of her Friends, and cannot in reason be farder exten­ded, since no man of Sense will think that it was the meaning of the Council, to make themselves absolute Arbiters of all young Gentlewomens Marriages, as the words lybelled upon seem to import; But so it is, that Prestoungrange did carry away his Lady, with her own, her Mother, and all Friends Consent, Sir James only excepted, so that this Act of Council concerns not this case.

2. It is evident, that even the Council did not judge that Paestoungranges case did belong to the foresaid Act, otherways they should (and undoubtedly would) have fined him in the Equivalent of his Tocher, whieh we see they have not done. But 3. Whatever is in this Order of Council more than Law allows, could not at that time, nor is at any time binding; but so it is, that all that can be found in Prestoungranges case, was a clandistine Marriage, whereof the pain of Law is only 1000 Merks.

3. As to the Councils Order for Sequestration, It is not doubted, but that the Council may in certain Cases Sequestrate; But then it ought to be upon the hearing of Parties, and certainly, if Parties had been first heard, the Council had not granted this Order: And if the Lady was both surprized and terrified to find her Daughter taken from her, and ordered to a Bishops house, at the de­sire of Sir James her nixt Heir, and so far contrary to her Daughters Educati­on, and both their Inclinations, it was nothing to be wondred at, but a matter every way excusable, and could not justly be construed a Contempt of the Coun­cil [Page 3]Authority, where Sir James had proceeded so illegally, and had only Impe­trate the Order upon his own Peril.

4. As to what Sir James pretended from his Brothers Testament;

• 1. It is possitively affirmed, that the Recommendation in the Testament was insert and interlined, after it was Subscribed. But
• 2. Whether it was so or not, the Words bear only a Recomendation or Advice, which imports no Obligation, and always leavs a latitude for a more equal Choice.
• 3. It was a most false Insinu­ation, That Sir James procured the Legacy of 6000 merks to be left to the La­dy, nor is there the lest vestige in the Testament, that that Legacy had the least respect to the foresaid Recommendation.
• 4. No rational man can doubt, but if the deceast John Rochead were alive this day, He would approve his Ladies Choice, and pass from his own Recommendation. And it was notourly known that the Sequestration was contrived by Sir James, not in order to a Marriage with his own Son, but he was to dispose of her to another Person on purpose to make his Interest at Court.

5. As to the Ladies marying her Daughter to Preston-grange, it was evident at that time by all that were Impartial, judged to be the more equal Marriage: Sir James his Son was three years younger than the Ladies Daughter, and the Daughters Marriage did not happen till near three years after the Fathers Death, in which space, many Grounds of Aversion and Alienation might have fallen in, as in effect they did, which might justly determine both the Mother and the Daughter to make a new Choice, notwithstanding of the Defuncts Recomen­dation. If the Daughter and Sir James's Son had been both Marriageable when the Father died, the Recomendation might have had more weight, but to think that a Recomendation of Marriage, as to Persons under Age, should be of any moment three years thereafter, against a more equal Choice made be both Mother and Daughter, is contrary both to the Liberty of Marriage, and all Rules of Good Sense.

6. That Prestoun-Grange was married by an Outed-Minister, is clearly e­nough, and in terminis Lybelled; And the very Act of Parliament discharging Marriages by Outted Ministers, is one of the Acts lybelled upon: but whether this should have been an Aggravation for so exorbitant a Fyne, all men may judge.

In Respect whereof, it is evident, that the Grounds of the said Fyne were Arbitrary, and the Fyne it self extraordinary and exorbitant, and such as are Condemned by the Claim of Right, and is most justly referred to the Cognition of this Commission.

Sir James would willingly decline the Commission, or have the Commission to decline themselves; because this Case seems not to be included in the Act of Parliament, which grants this Commission.

• But First, if it had been more di­rectly included in that Act, it had not needed an express Reference.
• 2. Its Reference is the same, and every way as Valid as many others made by the Par­liament to this Commission, without any formal Vote, and far more Remote from the Subject of the said Act of Parliament. But
• 3. This Case is clearly comprehended in the Claim of Right; which its well known, was the Rule principally regarded in making the foresaid Act of Parliament; and had the case been then named, it had certainly been expresly Included.
• 4. In so far as mar­rying by an Outted-Minister, is made one of the principal Aggravations of this Sentence: it falls directly within the Compass of the said Act of Parliament; and its very like, that at that time the Ladies refusing to put her Daughter in [Page 4]the Bishops house, and her Daughters marrying by an Outted Minister, were the greatest Ingredients in their Guilt, to procure this heavy Fyne.
• 5. It is evident, that this Matter cannot be Tryed by any other Court, but by the Par­liament; for seing the Fyne was Imposed by Act of Council, and was manifest­ly exorbitant, and by the Claim of Right, appointed to be Considered and Re­dressed. It is obvious, that the Parliament are the only proper Judges in this Review. And
• 6. Since that this Commission is only to Try and Report; Inner­leith must have a very suspicious Diffidence of his Cause, if he draw back from the Commission, and be unwilling that His Majestie and the Parliament De­termine in it.

This Affair being afterwards brought before the said Commission, and Deba­ted in their Presence; the Commission induced, the Parties to submit, and gave forth their Decreet Arbitral: But Sir James having Reclaimed against it, the Lady Craigleith did likewise Resile, and so the Decreet took no Effect. Like­as, John Trotter now of Mortounhall, as representing his Father, who was like­wise concerned in that Matter, did not at all submit: and therefore, both he, and the Lady Craigleith, and Prestoun-Grange for his Interest, do humbly apply to the Committee for Security; as come in place of the foresaid Commission, to have this whole Matter Reported and Determined in Parliament.