AN ADDITION TO SWINTON'S CASE, in relation to his Father's pretended Forfeiture, upon occasion of the ANSWER to it published by the Earl of Lauderdale.  
SWINTON having in his Printed CASE and REASONS of REDUCTION, in relation to his Father's pretended Forfeiture, given so true and clear an account of that Affair to the World, as upon the severest Scrutiny can be made into the matter of Fact, as represented by him, it will be impossible for his Adversaries ever to convel; he shall not trouble himself to take so much notice of the Paper published by the Earl of Lauderdale by way of Answer, as to make any formal Reply unto it. But the Earl's Design in that Paper, being only to obscure and darken, what he found was set in too great a Light, for him by any other method to cope withal; and to render the CAUSE of a Son unfavourable, by reflecting upon his Father: he shall endeavour to take off, what therein may seem to have any weight with those that read it.  
AND in the first place, As to what the Author of the Earl's Answers is pleased so virulently to libel against the Fame & Reputation of the deceased Swinton, in the odious Comparison he makes betwixt him and the Duke of Lauderdale, DEBASING the one as a Traitor to his King and Country, and EXTOLLING the other as little less than a Martyr for both; those who shall consider the Answer the former gave in to the Indictment, exhibited against him in the Parliament 1661., will (even though they never knew him) find him of far another Character, & very clear from so black an Imputation: and one whose Deportment in all the Transactions (whether public or private) of his Life, are so well known, and have left so fair an impression in the minds of all that knew him, as whatsoever the Duke's great Merits were, in relation to his King and Country, the deceased Swinton, were he living, would think he had no great reason to envy his MEMORY either as to the one or the other.  
Whereas it is alleged, That this Swinton's Brother did procure a Commission from the late King Charles, for enquiring into the Method, Procedure, and the Warrants upon Record, of Swinton their Father's Forfeiture; and there being several Objections offered against the Forfeiture, and Answers made thereunto by the Earl of Lauderdale; the Commissioners were convinced, that nothing of moment was instructed on the Objector's part, and the Commission thereupon deserted.  
IT IS ANSWERED, That Swinton's Brother having represented to the late K. Charles the clear Grounds of Nullity of the Forfeiture, and the unjustifiable Methods had been made use of in the Procedure concerning it; his Majesty found them so convincing, that he was pleased to grant a Commission to the Earl of Aberdene, than Chancellor, and several others, to take trial of the same, and to report. And accordingly inquiry thereinto being made, and the Parties heard; the Lords of the Commission were fully satisfied of the truth of what was objected against the Forfeiture. But by the influence the Earl of Lauderdale had upon several of them, the Report was delayed: and shortly after, the Earl of Aberdene being laid aside, the Commission thereby expired. So that to allege, that the Commission deserted upon the account that there was nothing instructed against the Forfeiture, is most calumnious and false.  
Whereas it is alleged, That albeit the Warrants of the Decreet 1651 be not produced, yet the Extract must make as much Faith as if the Warrants were extant, seeing the Lords of Session sustain all Extracts out of the Registers in the years 1648. 1649. 1650. and 1651. and refuse to grant Certification against any Writs registered those years, because the Registers of those years were lost.  
IT IS ANSWERED, That the pretended Extract of the Decreet 1651. can make no Faith, because it is not subscribed by the Clerk Register for the time, as all Extracts of Decreets of Parliament are in use to be. Neither is it so much as made appear, that Mr. Thomas Henryson, who is alleged to subscribe that Extract, was Clerk-depute to the Committee of Estates. And seeing there are no Warrants of that Decreet extant, it cannot make Faith. For as to what is asserted of the Lords of Session, concerning Extracts for those years, it is most calumnious; the Lords not sustaining such Extracts, to satisfy the Production in Improbations: but all they do is, to stop the Extract of the Certification for some time, that the Parties may raise a Proving of the Tenor, of any Writ registered those years; and allow the Parties to make use of any pretended Extract they have, only as an Adminicle in proving the Tenor: but do not sustain such Extracts per se to make entire Faith. Which if otherwise, were of dangerous Consequence, since Persons might forge Extracts of Decreets and Bonds for those years, and so ruin whom they pleased in their Estates and Fortunes.  
And whereas it is alleged, That the Truth and Verity of the Decreet 1651, is adminiculated by this, that Lieutenant Govain who was forfeited at the same time with Swinton, and is contained in the same Decreet; was by virtue of that Decreet put to Death, by Order of Parliament, in the year 1661.  
IT IS ANSWERED, That the Parliament 1661., did not consider that Decreet 1651, as a standing Decreet against Govain, upon which he could have been summarily executed: but on the contrary, he being called before the Parliament, that Decreet was given him to see and answer, by which it was turned into a Libel, and as he was to answer it as a Libel, so he did actually give in his Answers to it, and the Parliament gave their Sentence against him, as upon a Libel and Answers. So that Govain's being one of the Persons comprehended in the Decreet 1651 with Swinton, is so far from adminiculating the Verity and Truth of that Decreet, that it redargues the same. For if the Parliament had looked upon that Decreet, as a true and valide Decreet; they would have ordained the Sentence therein to be put in Execution against Govain without any further Demur. But having allowed him to see and answer, it is a clear Demonstration, that the Parliament considered that pretended Decreet only as a Libel, and not as a formal, standing, legal Sentence. Especially seeing upon the Answers given in by him, they passed a new and solemn Sentence against him, forfeiting his Life and Fortune, ordaining his Arms to be lacerate, and delete out of the Herald's Books, with all the other Solemnities of a Forfeiture. Which it is absurd to think the Parliament either would or could have done, if the Decreet 1651 had been looked upon by them, as a true and valide Forfeiture; it being as repugnant to Sense, as contrary to Law, for a Man once forfeited to be forfeited over again.  
Whereas it is alleged, That the Verity of the Decreet of Forfeiture 1661., is adstructed by the List of the unprinted Acts, which bears that there was a Decreet of Forfeiture against Swinton; and by the Act of Indemnity, in which with other Decreets, that Decreet of Forfeiture is excepted.  
IT IS ANSWERED, That the mentioning of that pretended Decreet of Forfeiture 1661. in the List or Index of the unprinted Acts, and the exception thereof out of the Act of Indemnity, do not instruct that there was such a Forfeiture. For the mentioning of a Title of Law, doth not instruct that there is such a Law, unless the Law itself be extant. Seeing in this, as in all other cases of the like nature, the Maxim takes place, Quôd non creditur referenti nisi constet de relato.  
And whereas it is alleged, That if Swinton had been innocent of the Crimes contained in the said pretended Decreet of Forfeiture 1651, and had had any ground to have questioned the same; he would have made Application to the Parliament 1661., or to Parliaments subsequent, for getting the same reduced.  
IT IS ANSWERED, That it is notourly known, that the Duke of Lauderdale being the chief Minister of State in this Kingdom, had that Influence upon the Government all his time; that it had been to no purpose for Swinton, to have made any Application for reducing of his Forfeiture, so long as the Duke lived. But immediately after his Decease, Swinton's Son Alexander applied to the King, and procured the aforesaid Commission, for trying the Nullity of the said Forfeiture, which if it had not been made ineffectual by the Earl of Lauderdale's means, and the Earl of Aberdene's being turned out of Office, to whom, with others, the Commission was granted; there had certainly been a Report made, finding the Nullities now alleged against the said Forfeiture, sufficiently proven as they are now instructed. But as a convincing evidence, that the deceased Swinton did never acknowledge the Forfeiture; all was done that he could do, during the Duke's Life-time, to recover his Estate from him. In order to which, several of Swinton's Friends having made Application to the Duke, they so far prevailed with him, and so conscious was he of the invalidity of his Right; that in the year 1663., he condescended to accept of 5000 lib. Sterling: and was content to allow as a part of that Sum, the three years' Intromission he had had with the Rent of the Estate of Swinton; and looked upon the Remainder as sufficient to satisfy and compense any Intromission Swinton had had with that part of the Duke's Estate that he had possessed the time of the English Usurpation. Which matter of Fact, if need were, could be proved by several Persons of quality, who communed betwixt the Duke of Lauderdale and Swinton at that time, and particularly by the Earl of Tweddale: and that the reason why that Communing did not take effect, was the Duke & Swintons differing in the Computation of Swinton's Intromission: the Duke computing it to amount to 5000 lib. Sterling, & Swinton contending it amounted but to 4000 lib. Which clearly evinces, that as the Duke did not look upon the Forfeiture as valide and legal, so he never intended to make further use of it, than to be repaid of what he conceived Swinton had intrometted with of that part of his Estate which he had possessed under the English.  
Whereas it is alleged, That Swinton in his Answers given in to the Parliament 1661. endeavours to extenuate his Crime, in joining with the Usurper Cromwell, and going with him to Worcester, pretending he was out of the Protection of the Law; which could only be understood of the Decreet of Forfeiture 1651. And that in his Answers before the Parl. 1661. he doth not deny his being then forfeited.  
IT IS ANSWERED, That Swinton by his mentioning in his Answers, that he was out of the Protection of the Law, did not understand he was so by a Decreet of Forfeiture 1651. But that he being then denounced for not Compearance, the Denounciation did put him out of the Protection of the Law. And that Expression cannot be otherwise understood, seeing in his Answers he makes no mention at all of that pretended Decreet of Forfeiture, 1651. And it is most absurd and ridiculous to pretend, that Swinton's not denying in his Answers before the Par. 1661. that there was such a Decreet in the year 1651. is an evidence of the verity of it. For 1. the Answers being made to the Indictment, and there being no mention in the Indictment of the Decreet 1651. he was not obliged to answer, nor take notice of any thing but what was in the Indictment. 2. His Answers could not bear a denying of the Decreet 1651. because his Answers were given in to the Indictment, before the Decreet 1651. was produced, or made use of against him.  it appears by the Lord Presmennen's Diary, the 15 of May, that Swinton's Dittay with his Answers were then read before the Parliament: and that the Lord Advocate opponed the Dittay, and produced the former Decreet of Forfeiture against him. And it appears by a Copy of the said Decreet delivered to Swinton, by Alexander Reid the Advocate's Servant, that it was not delivered to him till the 17 of May, it being marked upon the back with the said Alexander Reids hand, that it was given to Swinton the 17 of May, to answer the 24. Whereas it is evident by the Minute on the Margin of Swinton's Answers, that the said Answers were given in by him upon the 14 of March 1661. and given up to the Advocate to see, which was two Months before the Decreet 1651. was produced. And Swinton being upon the 15 of May allowed to see and answer to that Decreet, he was never thereafter called before the Parliament, and so had never an occasion to make any Answer to it.  
Whereas it is alleged, That the Author of Swinton's Case does show his Ignorance and Disingenuity, in asserting that the Restriction in the Decreet 1651. restricting the Sentence to the Punishment of John Hume to the Death, takes off the effect of the Sentence, as to Swinton, and all the rest; seeing the Doom of Forfeiture was solemnly pronounced by sound of Trumpet, and tearing the Arms of those forfeited; and by several reiterated Acts, forfeiting them, as to Life, heritage, and Movables: and that Swinton did not pretend to, or found upon any Restriction of that Sentence, when he was brought before the Parliament 1661.  
IT IS ANSWERED, That the Penner of the Earl of Lauderdale's Answers doth grossly bewray aswell his Ignorance as Disingenuity in the said Alledgance. For the Restriction in the Decreet is plain and express, which is subjoined after the pretended Sentence, which the King and Committee of Estates, for Reasons and Considerations moving them, did restrict to the punishment of John Hume to the Death. Which Restriction being in general Terms, must be understood to relate to all the forementioned Persons, and so clearly takes off the effect of the Sentence, as to Swinton and all the rest, until it should be reconsidered by the King and Parliament. And there was very good reason for the Restriction, and that the Sentence should have been instantly put in execution against John Hume: because the Crimes libelled against him were most atrocious, being his keeping a Correspondence with the Enemy, his discovering the condition of the Castle of Edinburgh, by throwing a Letter over the Wall to the Enemy, etc. and the Probation was clear against him, he having acknowledged the Crime, before the Court-Marshal and Ministers of the Castle. Whereas there was nothing libelled against Swinton, except only his pretended deserting of the King's Army, and his frequent residence with, and resorting to the Enemy in the Town of Edinburgh, Cannongate and Leith, which could infer no Crime, far less the Crime of Treason: seeing Swinton did not desert the Army, but laid down his Charge, which was taken off his hand, and given to another; and all the converse he had with the Enemy, was in the quality of a Prisoner. And as an unanswerable evidence that it was not designed any Execution should pass upon the said pretended Decreet 1651. till it should be reconsidered, as to the rest of the Persons therein-mentioned; when Govain was brought before the Parliament 1661., he was (as hath been said) ordained to see and answer that Decreet, not as a standing Sentence against him, but only as a Libel: and the Parliament upon consideration of that Decreet as a Libel, proceeded to a Sentence against him. As also when that Decreet was produced, and made use of against Swinton, he was allowed to see and answer it. All which clears beyond contradiction, that the Restriction was looked upon to take off the effect of that pretended Sentence in the year 1651. as to Swinton and all the rest, (except Hume,) before it should be reconsidered by the King and Parliament. Neither doth that pretended Decreet bear, that the Solemnities by sound of Trumpet, and tearing of Arms, were used in presence of the Committee of Estates, as is usually done in the case of all solemn Forfeitures: but only bears, an Order for performing of those Solemnities, which never appears to have been actually done. And it is frivolous and inept to pretend, that Swinton did not found upon that Restriction in his Answers to the Parliament 1661. seeing the Decreet 1651. was not mentioned in the Indictment, nor was that Decreet founded upon by the King's Advocate, nor made use of by him against Swinton, for two Months after Swinton's Answers were given in; as is clear by the Minute upon the Answers, and Presmennan's Diary.  
Whereas it is alleged, That by the Law and Custom of Nations, whosoever accepts of a military Commission or Charge, he cannot at his pleasure dismiss or exauctorate himself. And Swinton having accepted of a Charge in the Army from the King and Committee of Estates, he could not disengage himself without their leave.  
IT IS ANSWERED, That it is a great Mistake that an Officer in an Army may not quit his Charge and Commission when he pleases: and it appears, that what Lawyer soever the Author of the Earl of Lauderdale's Answers may be, he is not a Soldier. For every one knows, that knows any thing of military Affairs, that a commissioned Officer may give up his Commission, and liberat himself whensoever he thinks fit to do so. Which being a thing of such ordinary, and universal Practice; it is strange how any man should have the confidence to controvert it.  
And whereas he asks the question, What could (whilst his Family was on the other side) have moved Swinton, to come to this side of the Water, where the Enemy lay, and where he could not escape being taken; if he had not had a Design to have joined with the Enemy?  
IT IS ANSWERED, That the deceased Swinton gives a clear account hereof in his Answers, before the Parliament 1661., viz. That after he had intimated to the then Chancellor, at Stirling, the laying down of his Charge, desiring him to acquaint the Committee of Estates with the same; and at the same time intimated it to Colonel Gilbert Ker his immediate Superior Officer, Crafurdland was put into his Place. And that before he came to this Part of the Country where his Estate lay, and where his Business called him; he was upon the Place where Colonel Ker's Regiment was, where he did actually see Crafurdland in his Charge: and that his Occasions leading him to Berwick-shire, where the only Estate he had lay; he was seized upon and made Prisoner by a Party of the English, and carried to their General's Quarters: and having given an account to him of his Occasions in these Parts, the General declared to him, although he was his Prisoner, yet he should have liberty upon his Parole, to go to his Lodging, and about his Affairs. And both the manner of his quiting his Charge, (as thus related,) and that he was taken Prisoner, and thus brought in; he positively offered him to prove before the Parliament: which was unquestionably relevant to liberat him from the least Suspicion of having any Design to join with the Enemy, and his Family was not on the other side, but this side of Forth at that time, and under the Power of the Enemy.  
And whereas it is alleged, That the Decreet 1651, being ordained by the Parliament to be given up to Swinton to see, the 15 of May 1661. and he ordained to give in his Answers thereunto against that day eight days. And that accordingly he having got up the Decreet to see, he returned the same without any Answers: which he would not have done if he had been innocent of the Crimes libelled against him in the said Decreet.  
IT IS ANSWERED, That the deceased Swinton never got the Decreet it self to see, but only a Double, marked on the back by Alexander Reid the Advocate's Servant: and which this Swinton has yet to show, and now produces. And albeit he was ordained upon the 15 of May, to see and answer that Decreet against that day eight days: yet he never was thereafter called before the Parliament to give in his Answer to it. And so it is false, that he gave back the Decreet without making any Answer: since he could not give back what he never received; and could make no Answer to the Copy which he did receive, unless he had been called to do so.  
AND here it cannot but be taken notice of, that how cautious soever those who framed the Draught of the Decreet against Swinton, which is pretended to have passed in the Parliament 1661. to omit out of it that Ordinance of Parliament, whereby upon the 15 of May 1661. Swinton was ordained to see the Decreet 1651. and to give in his Answer to it against that day eight days (being the 24.) the Earl of Lauderdale is not only forced in this place of his Answers, to acknowledge there was such an Ordinance, but afterwards, (tanta est vis veritatis,) to acknowledge, when he comes to quibble upon the forged Minute of the 12 of July 1661., that Swinton did not compear that Day, and consequently was never called before the Parliament, after the 15. of May. And it is left to all judicious Perusers of what is now published on either hand, in relation to this Mystery of Iniquity, (wherethrow the deceased Swinton and his Family have been so great Sufferers, and for so long a time;) to consider, whether it be presumable, that he being a Prisoner in the Tolbooth of Edinburgh, within Call of the Place where the Parliament sat, and a Term having been assigned him, to give in an Answer to that pretended Decreet 1651. the Parliament, (for the Honour and Justice of which, the Earl takes upon him now to be so much concerned,) would, without calling Swinton to give his Answer, have proceeded to a Sentence against him, albeit the matter had been but of a civil import; or though there had been no such Term assigned, would have proceeded to a Sentence against him, in a Cause that was Capital, and in a Crime of Treason, without calling him to the Bar, to hear the same pronounced. Which to suppose, were the highest Reflection upon the Honour and Justice of a Parliament, that ever Man was guilty of.  
Whereas it is alleged, That the Decreet 1651, bears that the Libel was found relevant, and proven by the Depositions of divers famous Witnesses, as was clearly known to his Majesty and the Committee of Estates. And therefore the Decreet cannot be said to be without Probation, seeing the way and the manner how the Libel was found proven, is condescended upon.  
IT IS ANSWERED, That it seems the Author of the Earl of Lauderdale's Answers, has not considered the Decreet. For as to that part thereof that concerns Swinton, the Libel is found relevant and proven: but the manner of Probation, whether by Witnesses or otherwise, is not expressed neither as to him, nor any other contained in the Decreet, except John Hume; as to whom the Libel is found proven by a missive Letter, and his own Confession. And albeit in the end of the Decreet, it bears that the Libel was sufficiently verified and proven, by the Depositions of several famous Witnesses sworn, examined, etc. these are but words of Style in Decreets of absence, and are not to be regarded. Seeing in that part of the Decreet, where the Committee of Estates had the Libel and Probation, under their consideration; it bears only, that the Libel was sufficiently proven: without condescending upon the manner of Probation, whether by Writ or Witnesses. And as a convincing evidence, that there was neither Writ nor Witnesses adduced for proving of the Crime libelled against Swinton; (which if there had been, the same would have been expressed;) the manner of Probation against John Hume, being by a Letter under his hand, and by his own Confession, the same is particularly expressed in the Decreet. And certainly pari ratione, if there had been any Probation led against Swinton, whether by Writ or Witnesses, the same would have been likewise expressed and condescended upon.  
Whereas it is alleged, That the Duke of Lauderdale did not raise a new Indictment before the Parliament 1661. against Swinton, before he obtained the Gift of Swinton's Forfeiture, since he obtained not the Gift till May 1661., and the Indictment was given to Swinton in the Month of February before. And that albeit the Duke had caused raise a new Indictment, after his obtaining of the Gift, and had libelled the same Crimes against Swinton, & had designed him John Swinton of Swinton; yet that was no passing from the former Decreet 1651. there being Crimes added that were committed after the year 1651. and it being ordinary to design Persons by their former Titles, a wrong Designation could not prejudge the King nor his Donatar. And that the King's Advocate did not insist against Swinton upon the Crimes mentioned in the former Decreet, to forfeit him of new again, upon those Crimes; but did insist upon the Decreet 1651, as probatio probatae, and that the said Decreet might be ratified and approven, as it was by the Decreet 1661. and Swinton also of new forfeited, for his being in Arms at Worcester against the King, which was the only new additional Article insisted upon against him. And that although a forfeited Person in the Construction of Law, be reputed civiliter mortuus, so that he hath not personam standi in judicio; yet that is only in odium of himself, but cannot prejudge the King nor his Donatar, nor hinder a Party forfeited committing Treason after the Forfeiture, to be forfeited of new: no more than a Murtherer's being sentenced to die, as a Murderer, could hinder him, if escaping out of Prison after Sentence, he should commit Treason; to be forfeited, notwithstanding of the former Sentence standing against him for the Murder.  
IT IS ANSWERED, 1. That albeit the Duke of Lauderdale's Gift of the Forfeiture was after Swinton had received his Indictment before the Parliament 1661. yet it is notourly known, that the Duke designed to have the Gift before that time, and accordingly thereafter procured it. And albeit the Gift was obtained after the Indictment was given to Swinton; yet seeing it was before the pretended Forfeiture 1661. it was ipso jure null: since by the Claim of Right, it is declared, that the disposing of Forfeitures before Sentence, is contrary to Law. 2. The raising of a new Libel against Swinton before the Parliament 1661., being for the same pretended Crimes, for which it is alleged he was forfeited by the Decreet 1651. albeit there were other Crimes added in the Libel, yet that was a clear passing from the Decreet 1651, as what eo ipso was looked upon as no Decreets it being absolutely inconsistent in Law, to forfeit a man twice for one and the same Crime. And the designing the Defender John Swinton of Swinton was an evident Demonstration, that he was neither considered nor looked upon as a forfeited Person. For though in ordinary Discourse, Men in such Circumstances may be designed by their former Titles; yet it is ridiculous to pretend, that was ever done in instrumentis publicis, or can be done in an Indictment of Treason: in which the Conclusion being to forfeit Life and Estate, the designing the Party by an Estate, must necessarily infer an acknowledgement in the Drawer of the Indictment, he had that Estate to forfeit, and consequently th●● it was not forfeited before. And this is a thing so vulgarly know●● that if Swinton had been looked upon as a forfeited Person, the King's Advocate could not have committed so gross a Mistake, as to have given him the Designation OF SWINTON. And albeit ordinarily Errors in Designation do not prejudge thr●● Parties; yet in this Case, if there had been an Error, (what in rei veritate there was not,) it behoved to prejudge the King and his Donatar, being made use of to evince, that the Government did not look upon Swinton then, as a forfeited Person. 3. The King's Advocate did not make use of the aforesaid Decreet 1651. as a Probation of the Indictment 1661. but libe● the pretended Crimes, without respect to, or so much as making mention of the Decreet 1651. And when the said Decreet was thereafter produced, Swinton was allowed to see and answer i● as a Libel, and so it could not be made use of as a Probation. 4. As to that Pretence, that the Parliament did ratify and approve the Decreet 1651, and of new forfeited Swinton, for being in Arms against the King at Worcester; it is what is absolutely inconsistent, and repugnantia in adjecto, to ratify a former Forfeiture and of new to forfeit, And in this Case, the former pretended Decreet 1651 could not be ratified: because by giving a new Indictment to Swinton for the same Crimes, it was passed from. So that if there had been any Ratification of it, such a Ratification could import no more but the ratifying of a Libel, which can never have the effect of a Forfeiture. 5. A man that is forfeited, is not only civiliter mortuus, not having personam standi in judicis, but also being forfeited, he has no Estate, both his Person and Estate in the Construction of Law being extinct: and therefore being forfeited once, he can neither quoad vitam, nor quoad bo●● be forfeited a second time. And the Instance of a Murderer committing Treason, after his being condemned for the Murder; is most impertinent, and absurd: there being a vast difference betwixt such a one, and a Person that is forfeited. For a Man that is sentenced for a Murder, his Escheat only falls, which carries the Right to his Movables: but his Lands and heretable Estate still remain with himself, and go to his Heirs. And therefore if a Person sentenced for Murder, should make his Escape, and thereafter commit Treason; he may be forfeited, and his Forfeiture will carry the Right to his Lands and heretable Estate. But it is not so in the case of a Person forfeited, who what Crime soever he commit after, is incapable either as to Life or Fortune of a higher Punishment.  
Whereas it is alleged, That John Swinton, by his Answers given in to the Parliament 166●. doth acknowledge, that he was at Worcester, and that he went thither at the desire of the Usurper, which sufficiently proves the Crime against him.  
IT IS ANSWERED, That Swinton's Answers are opponed, which bear expressly, that he did deny that Article of the Indictment, as it was conceived. And though he acknowledges that he was at Worcester, yet he declares it was as true he went thither through the earnest Entreaty and Importunity of him, that (though he doth ingenuously acknowledge he could not say, he used that as an Argument;) could have commanded him alongst with him as his Prisoner, and whose Prisoner he was upon the matter: and that he went in no other capacity than a Traveller. And that if it should have been made appear, that ever he joined so much as in any Troop, or carried any Charge, or that upon any occasion there, in the Battle or otherwise, he did draw a Sword, or lose a Pistol; he admitted all, or any one of these relevant of consent, to infer the Conclusion of the Indictment. And as an evident Demonstration that Swinton was not at Worcester, hostili animo, or out of any design to act against the King, or to the prejudice of his Native Country; he declares in his Answers, he could say, in the presence of the SEARCHER OF ALL HEARTS, that he thought, if the Parliament should find the Indictment against him, upon that single Head of his being at Worcester, (as he doth look upon that as the Principal, and all the rest but as Accessories, even in the intention of the Libeler;) and the Sentence that should pass, as to Life and Estate, were ready to receive its last Consummation; he could receive and lie down under it, with a more cheerful Heart, than he enjoyed any time he was at Worcester, to see and be Witness of the Reproach of his Country, and the Distress his Country men were under. Which Confession being so qualified, and particularly that he was there as a Prisoner, it cannot be divided: and so did not prove that Article of the Indictment, and could never infer any Crime against him, far less the Crime of Treason.  
And whereas it is alleged, That the English Act of Indemnity did extend no further than to the King's English Subjects, and not to Scotsmen. And as no Law made by the Parliament of England, could hinder the Parliament of Scotland to proceed against Traitors who were Scotsmen; so no Indemnity passed in the English Parliament, could Indemnify Scotsmens' Crimes, or could hinder the Parliament of Scotland to proceed against them, albeit they had been particularly indemnified by the Parliament of England.  
IT IS ANSWERED, That as by the Law of Nations, Crimes may be judged and punished in the Place where they are committed; so Persons committing Crimes, may be indemnified by the Supreme Authority where the Crimes are committed: seeing a judicando & condemnando, ad condonandum & remittendum, vale● consequentia. And therefore, as the deceass●d Swinton in his Answers urgeth (with no less elegancy of Expression, than force of Reason,) this being a Crime alleged to be COMMITTED in England, TRIABLE in England, PARDONABLE in England, PARDONED in England, and that by him AGAINST WHOM the offence was committed; that English Act of Indemnity, if he were guilty, behoved to free him. Which being general, and so comprehensive, not only indemnifying all his Majesty's Subjects in England, and Ireland, and the Dominions thereunto belonging; but also the Subjects of all OTHER his Majesties' Dominions; it must necessarily comprehend Scotsmen, that had committed Crimes in England. And therefore they could not be pursued for the same, before the Parliament, or any other Judicatory in Scotland.  
And whereas it is alleged, That a judicial Confession, emitted before a high Court of Parliament makes full Faith, albeit not subscribed. And Swinton did not only emit a Confession viva vo●e before the Parliament, but also in his Answers, which are subscribed by him, he acknowledged his being at Worcester with the King's Enemies.  
IT IS ANSWERED, 1. That it is denied, that Swinton did emit any judicial Confession of the Crimes libelled before the Parliament, and there is no vestige of any such Confession extant upon Record. 2. It is a great mistake in the Author of these Answers, to assert that a Confession, albeit judicially emitted before the Parliament, should make Faith, without being signed, either by the Party, or the Precedent of Parliament: it being against the Principles of Law, and incontroverted Custom of all Courts of Judicature whatsoever, (whether supreme or subaltern) to admit judicial Confessions, without being signed either by the Parties themselves, or by the Judge that presides. 3. As to any pretended Confession in Swinton's Answers; the former Answer is opponed, that it is qualified, and cannot be divided, but must be taken as it stands: and which so taken, could never have inferred a Crime against him, much less the Crime of Treason.  
As to what is alleged against the Reason of Reduction, founded upon the Nullity and Falsehood of the Minutes; the MINUTES themselves, that REASON of Reduction, and the Earl of CRAWFVRD'S LETTER, are opponed, which the Penner of the Earl of Lauderdale's ANSWERS, finds such rugged, stubborn, and untoward Pieces to deal withal; as all the pitiful Shifts and Evasions he tortures himself with, to shape an Answer to them, serve but to demonstrate to the World that they neither ARE, nor CAN be answered.  
And whereas it is alleged, That albeit the Interlocutories had not been signed by the Earl of Crawfurd, yet that is no Nullity, there being no special Law nor Custom requiring the same at that ti●● And the Minutes and Interlocutories of the other Processes of forfeiture against Govain, Guthrie, and others passed in that Parliament are not signed by the Chancellor, nor Precedent.  
IT IS ANSWERED, That the Alledgence is most calumnious. For it was the constant Custom of the Parliament 16●● and hath been in other Parliaments, both preceding and subsequent, for the Chancellor or Precedent, as they sign all the Warrants for the ACTS and STATUTES that pass in Parliament so they are in use to sign all Minutes, that are Warrants for D●●CREETS and SENTENCES; as is evident from the RECORDS and particularly, in the Minutes of those very Sentences against ●●vain and Guthrie, in the Parliament 1661. mentioned in the ●●ledgence: & of those in the same Parliament, pronounced against 〈◊〉 Marquis, and late Earl of Argile, (than Lord Lor●) Ardkinglass, & ● And it were against Sense to think, that a Minute of a Clerk shou●● take away a Man's Life and Fortune, without being signed 〈◊〉 the Chancellor, or Precedent of Parliament.  
IN RESPECT OF ALL WHICH▪ Swinton's REASONS OF REDUCTION (which are instantly verified and instructed; 〈◊〉 ought to be sustained: and the ACT given in 〈◊〉 him, reducing the aforesaid two pretended Decree● of Forfeiture, aught to pass, and he to be restor●● against the same by WAY OF JUSTICE▪