THAT George fourth Earl of Winton was the Grandson and Heir-male of the Body of George the third Earl of Winton, who was the second son and heir-male of the body of Robert the first Earl of Winton, by his Countess Lady Margaret Montgomerie,----Robert the eldest Son, who was second Earl of Winton , and who had previously resigned the Estates and Honours in favour of the said third Earl, having died without issue---and which first Earl of Winton was the Common Ancestor, both of the fourth Earl of Winton and of Lord Eglinton.

That Robert eight Lord Seaton, by Patent, dated 16^th November 1600, was created Earl of Winton, with limitation to him and his heirs-male,---that he married about 1582 Lady Margaret Montgomerie, eldest daughter of Hugh third Earl of Eglinton, and by  he had male issue Five Sons:

1.                  Robert, born about 1583, who succeeded his father as second Earl of Winton.

2.                  George, born December 1584, who became third Earl of Winton.

3.                  Alexander, born 1588, first Sir Alexander Seaton of Foulstruther, Knight, and thereafter Alexander Montgomerie sixth Earl of Eglinton, having succeeded his cousin Hugh, fifth Earl of Eglinton, in 1612, under entails of the estates, and subsequent royal grants of the honours in 1615.

4.                  Thomas, afterwards Sir Thomas Seaton, Baronet of Olivestob.

5.                  John, afterwards Sir John Seaton of St. Germains, Knight.

1.                  Extract Registered Patent of Erection and Creation by King James VI, dated 16^th November 1600, and superscribed by the King in favour of Robert Lord Seaton, creating him Earl of Winton, the limitation being to him, et hæredes suos masculos.  Recorded in the Great Seal Register, Lib. 44, No. 136.

2.                  The Original Patent of Creation, as described above, but considerably decayed, and partly illegible.

3.                  The History of the House of Seytoun, published by the Bannatyne and Maitland Clubs, and which consists of copies of the two following manuscripts, the originals of which are in the Advocates’ Library, viz. 1^st, The Historie and Chronicle of the House and Surname of Seytoun, to the moneth of November in the yeir of God 1559 yeiris, collectit, gaderit, and set forth be Sehir Richart Maitland of Lethingtoun, Knycht, Dochteris Sonn of the said Hous, &c; and, 2d, The History of the House of Seton, further inlarged by Alexander, Viscount of Kingston, second lawful son of the same house, from the beginning of the fift George Lord Seton to this the seventh George Lord Seton of that name, and the eleventh Lord Seton, fourth Earl of Winton, now living in this present year of God 1687.

For the sake of convenience, reference shall her be made to the printed edition of these MSS, in addition to the MSS, themselves, which shall be produced.

In Viscount Kingston’s Continuation, the Viscount relates the creation of Robert eight Lord Seaton, as first Earl of Winton by King James Sixth, his marriage with Lady Margaret Montgomerie, and their male issue to have been the five sons above enumerated.

4.                  The next authorities are three which there will be frequent occasion to refer to, namely, 1^st, MS Record of the Births, Marriages, and Deaths of the principal Members of the Winton Family from 1593 to 1624, in the handwriting of George, third Earl of Winton, now in the possession of Mr. Hay of Dunse Castle, the lineal heir of Alexander first Viscount of Kingston, son of the said third Earl.  2d, Extracts from the Family Bible at Dunse Castle, containing entries of the Marriages, Births, and Deaths of the Kingston Family, from 1650 to 1695, all made by the first Viscount Kingston, with the exception of three, which were made by the second Viscount.  3d, MS, Account of the Seaton Family by Nisbet, the antiquarian, who wrote about the year 1685, the original of which is in the Advocates’ Library, Edinburgh; and 4^th, Robert Mylne’s Genealogical MS., also in the Advocates’ Library, into which this account by Nisbet had been transcribed.

NOTE:  In addition to the MSS, themselves which shall be produced, reference shall here be made for the sake of convenience to the printed edition of them, so far as contained in a work edited and published in 1830, it is understood by Charles K. Sharpe, Esq., under the title, “The Genealogy of the House and Surname of Setoun”, &c, &c.

5.                  Sir James Balfour’s Historical Works, vol. Iv. P. 408.  The occasion is here described on which the creation of the Earl of Winton took place; having been in honour of the christening of the King’s son, afterwards Charles I.

6.                  Tack of Teinds, dated 29^th of March and July 1602, by the College Kirk of Seaton, in favour of ane nobill ladye deame Margaret Montgomerie, Countes of Wintoun, Ladye Setoun, and to her eldest sone Robert Maister of Wyntoun.

7.                    Extract Registered Charter by James VI, dated 22d March, 1603, and recorded in the Great Seal Register, Book 43, No. 326, Roberto Mag’ro de Winton et Anne Maitland, suæ sponæ.  This Crown charter confirms a charter and infeftment granted by Robert first Earl of Winton, and part of the narrative of the latter, as inserted in the former, is as follows:----Omnibus bane cartam visuris vel audituris Robertus Comes de Winton, Dominus Seaton, salutein in Domino sempiternam.  Noveritis me cum consensu et assensu Dominæ Margarettæ Montgomerie, meæ sponsæ, pro impletione unius partis cujusdam matrimonialis initi et confecti inter me et dietam meam sponsam et Robertum Mag’rum de Winton, nostrum filium et hæredem apparentem.

The last two documents prove, that the above Robert, the Master, was the eldest son of the first Earl of Winton and Lady Margaret Montgomerie.

8.                  Charter by Robert first Earl of Winton, in favour of George Seaton, of the lands of St. Germains, dated 20^th June 1602.  In this charter George Seaton is designed nostro filio secundo genito, and Sir Alexander Seaton, who has been referred to, as fratri germano juniori of George.

This proves the said George and ALEXANDER to have been second and THIRD sons of the first Earl of Winton.

9.                  Charter by Robert Earl of Winton, in favour of Thomas Seaton, his fourth son, of the lands of Olivestob, dated 10^th January 1603.  This charter preceeds, Cum speciali consensus et assensu charissimæ nostræ conjugis Dominæ Margarettæ Montgomerie, Comitissa de Winton, Dominæ Seaton, pro suo interesse, pro specialibus amore et favore quos erga delectum nostrum quarto genitam Thomam Seaton de Olivestob gerimus. 

            This proves that the said Thomas Seaton was fourth son of the first Earl.

10.        Procuratory of Resignation in favour of George Master of Winton, (afterwards third Earl of Winton) by Robert eldest son of the first Earl, of the earldom and titles of honour, dated 26^th June, and recorded in the Books of Council 25^th July 1606.  This procuratory proceeds as follows:---Me, Robert Erle of Wintoun, for the loue and fauouro that I beir to my broyer George Master of Wintoun---and for grit soumes of maney pay it and delyuerit to me be the said George Master of Wintoun, and be Deame Margaret Montgomerie, oure moyer, convertit to my vtilitie, &c. &c.  The procuratory is in favour of (1^st) the above George, (2d) the above Alexander, (3d) the above Thomas, his other brothers, and (4^th), quhilks failzeing to John Saytoun of             also my broyer-germane, and the airis-maill lawfullie to be gottin of his bodie.  And the only other substitution is in favour of the nearest heirs-male mentioned in the infeftment of the Lordship of Seaton.

This proves inter alia that the above John Seaton was fifth and youngest son of Robert the First Earl.

11.        Charter of Resignation and Novodamus by King James VI in favour of the above George then Master, and afterwards third Earl of Winton, of the earldom and titles of honour, dated 12^th May 1607.

This Charter calls also the three younger brothers, Alexander, Thomas and John.

12.               Instrument of Sasine of parts of Wigrihill in the Barony of Prestongrange, in favour of Thomas and John Seaton, the first designed filio quarto genito, and the other filio quinto genito, Roberti Domini Seton, dated 20^th of October 1600.

13.               Procuratory of Resignation by Hugh Earl of Eglinton, of the estate of Eglinton, in favour of Sir Alexander Seytonne of Foulstruther, knight, and the heirs-male of his body, &c, dated 13^th of September 1611.  It preceeds upon the narrative of a contract dated 27^th of July in the same year, betwixt him on y ane part, and ane noble and potent lady, dame Margaret Montgomerie, Countes of Wyntoune, Lady Seytoune and Sir Alexander Seytoune of Foulstruther, knicht, Thomas Seytoune, and John Seytoune, her thrie lauchful sones. Brether germane to ane noble and potent Lord George, now Erle of Wyntoune, Lord Seytoune, on y uther part.

14.               Charter under the Great Seal, of the estate, in terms of the above resignation, dated 28^th of November 1613, to Hugh Earl of Eglinton, and the heirs-male of his body, with remainder Domino Alexandro Seton de Foulstruther militi, et hæredibus masculis de corpore suo, &c.

15.               Procuratory of resignation by Sir Alex Seaton or Montgomerie, Earl of Eglinton, of the title of honour of Earl of Eglinton, in the king’s hands, dated 3d of February 1615.

16.               Charter of Resignation and Confirmation to the aforesaid Sir Alexander Seaton then Montgomerie, of the earldom and honours of Eglinton, to him and the heirs-male of his body, with other limitations, dated 4^th of March 1615.

THAT Robert first Earl of Winton, died 24^th March 1603, and was succeeded by his eldest son, the above Robert, sometime second Earl of Winton.

1.       In the MS, Record by George third Earl of Winton, already referred to, amongst the death recorded by him, there is inserted the following:  Robert first Earle of Wintoun, Lord Setoun, depairit this life upon the xxiiii day of Mairche 1603, and was buriet upon Tysday ye 5^th of Aprijlo 1603, upon quilk day his Matie tooke first jornay to Ingland.

2.       This fact is also stated in the MSS by Nisbet and Nylne, before referred to.

3.       Charter by James Sandilands, Lord Torphiehen, in favour of Robert Earl of Winton, dated 2d February 1601.  This charter narrates Compertum est quod quondam Nobilis Dominus Robertus Comes de Winton, Dominus Seaton, &c.  Pater nobilis etlam Domini Roberti nune Comitls de Winton, Domini Seaton.

4.       Special Retour of Robert Earl of Winton, as heir to Robert Earl of Winton, his father, dated 21^st April 1607.

5.       Precept from Chancery for infefting Robert Earl of Winton as heir to his father, 28^th April 1607.

6.       Procuratory of Resignation, already referred to, dated 26^th June, and recorded 25^th July 1606, by Robert Erle of Wintoun, in which he mentions George Master of Winton, my Broyer, and Deame Margaret Montgomerie oure moyer, &c.

The six last described documents thus prove, that Robert first Earl of Winton was succeeded by his eldest son Robert, sometime second Earl.

III.          HEAD --- INSTRUCTING

THAT Robert sometime second Earl of Winton, having no prospect of issue, and for other reasons, by Procuratory of Resignation, of date 26^th June 1606, resigned the Earldom and Titles of Honour in favour of his immediate younger brother George then Master of Winton, who, in consequence thereof, and of a Royal re-grant, succeeded him as third Earl of Winton,---That the second Earl, who thus denuded, thereafter uniformly described himself, and was designed by others, simply as Robert Seaton, and that although he lived till 1636 he left no issue.

1.             In the manuscripts by Nisbet and Mylne, already referred to, it is stated that the second Earl married Lady [Anne] Maitland, only daughter to Chancellor Maitland.  He denuded himself in favour of his brother George, and died without issue, and was interred in the chapel of Setoun with his fathers.

2.             In Scott of Sentstarvet’s Staggering State of Scottish Statesmen, (at p. 94) the same fact is mentioned.

3.             In the Collection of Genealogies by Sir George Mackenzie of Rosebaugh, (kept in the Lyon Office at Edinburgh it is stated that Robert Lord Seaton was created by King James VI, Earl of Winton.  His sons were Robert, who becoming incapable to manage the estate, having married the Earl of Lauderdale’s sister, who divorced him for impotency, he resigned it to his second brother George.  The rest were Alexander Earl of Eglinton, &c.

4.             Lines written by Hume of Godseroft, upon Lady Ann Maitland, who was the second Earl’s wife, published in 1639, bear these words, Ipso absente hymenæo.

5.             A monumental inscription upon the same Lady Ann Maitland, in the Lethington cemetery at Haddington, describes her as Roberto Wintoniæ Comiti desponsata, virgo mortua est, anno 1609.

6.             In Viscount Kingston’s continuation of Maitland of Lethington’s History of the house of Seaton, already referred to the Viscount expressly says, that the second Earl dyed without heirs of his body.  The Viscount was nephew to the second Earl, being a sone of George third Earl of Winton, and was his cotemporary, having lived from 1620 to 1691.

7.             The procuratory of Resignation, already referred to, dated 26^th June, and recorded 25^th July 1606, granted by Robert the second Earl, whereby George then Master of Winton succeeded as third Earl.  The procuratory, inter alia, recites as the cause of granting, Forsamekill as I now, efter my perfyte age of twentie-ane zeirls compleit,

Have considerit the tender constitution of my persone, subject to sundrle disenals; and, be that infirmitia and natural compleioun not finding in myself ---------to the maintenaneo and governement of – ancient and noble house of Setoun, of the quhilk I have that honur to be descendt, and thair being nothing in this world as deir to me as the continewance and gall it will be the pleasure of (bod) the increment of the honour and estate thereof &c, thairfor, and with express advice, comment and counsel of my noble honorubill alarest kinsmen and maist ruth friendl underulery, vand, To resign, renounce, frielle quytelame, discharge, overgive and dulyver fra me my heirs and assignees, all and sundrie the Erledo, landis, lordships, baronies, offices, and others particularlie aftermentionit; Thay are to say, All and haill the Erledomo of Wintoun and landis thairof, lyand within the Sheriffdom of Edinburgh and Constabularie of Haddintoun; with the Estate, dignitie, and honour of the said Erledome, with all prerogatives, preuiledges, and liberties of the samyn; All and hail the Lordship and baronie of Setoun, with castells, &c, in favour of the said George Master of Wintoun, my broyer germane, and the airis maill lawfullie to be gottem of his bodie; quhilkis failzieug, to Sir Slexander Setoun of knicht also, my broyer-germaine, and the airis maill awfullie to be gottin of his bodie; quhilks failzieing to Thomas, and John Seatons, his other brothers, in order already stated at p. 3.  The procuratory contains a provision that the said George Master of Wintoun be strictly bound and obleigit, his airs-maill and sucessors foresaidis, to reverence and honor me as their elder brother, and sustain me in all kinds of necessaries according to my estate.

8.             Instrument of Resignation following upon the said Procurator, in favour of the aid George third Earl of Winton, dated 28^th May 1607.

9.             The procuratory of Resignation, already referred to, by Hugh Earl of Eglinton, dated 13^th of September 1611, in which the above George Master of Winton, to whom the Winton estates and honours were conveyed, is he designed Earl of Winton.

10.         Charter of Resignation and Novodamus by King James VI, in favour of the above George third Earl of Winton, of the Earldom and titles of honour, dated 12h May 1607.  This Charter proceeds upon the resignation by the above Robert the second Earl, already referred to (No. 10 of productions), the Quæquidem declaring that the Earldom and titles of honour perprius pertinuerunt dilecto uro consanguineo et consiliario Roberto Comiti de Winton, Domino Seaton and hat they were resigned, cum omnibus jure et clameo, proprietate, et possessione, quæ et quas in eisdem habuit, præfato Georgio magro de Winton, suo fratri germano.  The charter is in favour of (1^st) The above George, third Earl (2d) The above, Alexander, he next brother; (3d) The above Thomas, the next brother; (4^th) The above John, the next brother; and (5^th) The nearest and lawful heirs-male mentioned in the infeftments of the Lordship of Seaton.

11.         Precept of Saisine under the Quarter Seal, in favour of the said George Master of Winton, dated 12^th May 1607.

12.         Instrument of Sasine in favour of the said George Master of Winton, dated 1^st December 1611.

The last six documents prove that the second Earl had absolutely divested himself of both the estates and honours; and he following show that he thereafter, during the thirty years which he survived, executed supplementary writings for the same purpose, and ceased to bear the titles, having uniformly designed himself, and subscribed, dimply Robert Seatoun.

13.         Instrument of Sasine, dated the 18^th day of Marcy 1610, in favour Roberti Seytoun, ulim et non ita dudum, Comitis Wintoun, Dsi Seytoun, &c, in two tenements of land in the burgh of Canongate, proceeding upon  precept of clare consat by William Bellenden, Baron of the Barony and Regality of Broughton, for infefting the said Robert Seytoun, in the said tenements, as nearest and lawful heir of the deceased George Lord Seaton, his grandfather and the deceased Robert Earl of Winton, Lord Seaton, &c, his father.

14.         Instrument of Sasine, dated said 18^th March 1610, in the said two tenements in Canongate, following upon a procuratory of the same date, granted per Robertum, olim Comitem de Wintoun, Dam Seytoun, &c, to Georgio nune Comiti de Wintoun suo fratri.

15.         Deed of Assignation, dated 1^st May 1621, of a tack of the teinds of the barony of Tranent, by Robert Seytoun, sumtyme Erle of Wintoun, eldest lawfull sone and air, servit and retouret to vinq Robert Erle of Wintoun, my father, in favour of ane nobill and michtie Erle, and my weil belouit brother George, now Erle of Wintoun, Lord Seytoun, heritabill proprietor of the saidis landis and barony of Tranent, which assignation narrates the said tack, and is subscribed Robert Setoun.

16.         Retour of the special of Robertus Setoun, as legitimus propinquior hæros quondam Roberti Comitis de Wintoun, sui patris, in the port and burgh of barony of Cockenzie, dated 24^th December 1633.

17.         Procuratory of Resignation, dated 21^st January, 1634, by Robert Seatone, eldest lawfull sone to umq Robert Erle of Wintoune, Lord Seaton, &c of the Port and Burgh of Barony of Cockenzie, in favour of George Erle of Wintoune, Lord Seatoun, &c my brother-german, and his heirs-male and of tailzie, succeeding to him in ye Erledome of Wintoune and Lordship of Seatoune.

18.         Instrument of Resignation following upon the said Procuratory by Robert Seaton, dated 25^th January, 1634, in favour of George Erle of Wintoune, Lord Seatoune, &c his brother germane, and his airis maill and of tailzio succeeding to him in the Erledom of Wintoune and Lordship of Seatoune.

19.         Charter under the Great Seal, dated 25^th January 1634, of he said Port and Burgh of Barony of Cockenzie, following upon the said Procuratory and Instrument, Georgio Comiti Wintoun, Domino Seatoun, &c.

20.         Precept under he Quarter Seal following thereon for infefting the said George third Earl of Winton, dated also 25^th January, 1634.

21.         Instrument of Sasine following thereon in favour of the said George third Earl of Wintone, dated 24^th, and recorded in the particular Register of Sasines at Edinburgh, 25^th February, 1634.

The last twenty-one documents thus prove, that Robert, sometime second Earl of Winton, died without issue, and that he had previously resigned absolutely in favour of his brother, the whole of the estates and honours which he inherited, after which he uniformly described himself, and was designed by others, simply as Robert Seaton.

IV.          HEAD -- INSTRUCTING

THAT George, third Earl of Winton, married twice; first upon 26^th April 1609, Lady Anne Hay, eldest daughter of Francis Earl of Errol; and, secondly, Lady Elizabeth Maxwell, only daughter of Lord Herries, and that by his first marriage he had issue five sons, but three of whom died young; and also, that, by his second marriage, he had issue six sons; but two of whom died young.  There were no other sons of the third Earl than these Eleven.

The son of the first marriage were:

1.             George, born 22^nd July 1610, died an infant before the birth of his next brother, which was in 1613.  This fact is proved by that next brother having been named also George, and it will be further proved by documents to be produced.

2.             George, born 15^th May 1613, afterwards George Lord Seaton, and father of George fourth Earl of Winton.

3.             Christopher, born 20^th February 1617, and died 30^th June 1618, in infancy.

4.             Alexander, born 13^th March 1620, afterwards Sir Alexander Seaton of Craigiehall, and first Viscount Kingston, progenitor of the Kingston branch; the particulars of which are stated from p. 21 to 25.

5.             Francis, born 1^st May 1623, died young.

The sons of the second marriage, were:

1.             Christopher, died an infant, as is proved by the third son of the same marriage, being also named Christopher.  It will likewise be proved by documents to be produced.

2.             Robert, died an infant, as is proved by the sixth son of the same marriage being also called Robert.  Documentary proof to the same purpose will however be produced under the head proving his extinction.

3.             Christopher, born 28^th January 1631, drowned, along with his next brother William, off the coast of Holland.  He had no issue.

4.             William, born 8^th January 1633, drowned, along with the above Christopher.  He had no issue.

5.             John, born 29^th September 1639, afterwards Sir John Seaton, first of Garleton, progenitor of the Garleton branch; the particulars of which are stated from p. 27 to p. 42 hereof.

6.             Robert, born 10^th November 1641, afterwards Sir Robert Seaton of Windygowl.  He died in 1671, without issue.

1.             In the MS Record by George third Earl of Winton, already referred to, amongst the marriages recorded by himself, here is the following:  Upon the 26^th of Apryle 1609, George Earle of Wintoun, was mariet upon Dame Anna Hay, eldest dochter to Frances Earle of Erroll.

2.             In Viscount Kingston’s Continuation of Sir Richard Maitland’s History, before referred to, he mentions the second marriage of George the third Earl (who was his father) as follows:  The said George Earl of Wintone married to his second wife Lady Elizabeth Maxwell, only daughter to the Lord Herros, by whom he had six sons.  And in the MSS, by Nisbet and Mylne, before referred to, the same fact is mentioned.

These documents prove the marriage of the third Earl of Winton.

3.             In the manuscripts by Nisbet and Mylne before referred to, it is sated that Lady Anne Hay had several children, who died all young, except George Lord Seaton, who succeeded, and Alexander, who was created Viscount of Kingston. 

4.             In the MS Record by George, the third Earl of Winton, already referred to, amongst the births recorded by him, there is the following:  Upon ye 22d of July 1610, my Lady Winton was delyuerit of hir eldest sone, callit George.  He deit upon the  .  .  .  .

5.             And in the same work, there is he following:  Upon the 15^th of May 1618, my Lady Winton was delivered of her second son called George.

Nos., 3, 4, and 5 prove, that the first born George must have died an infant. 

6.             In the same work, there is the following:  Upon Thursday the 20^th of February 1617, a little befoir 9 hours at night, my Lady Wintoun was delyuerit of hir third son, called Christell.

7.             Certified Extract from Parish Register of Baptisms at Tranent, which contains the following:  2d Martij 1617, George Earl of Winton (had) ane son baptised, named Christopherus.

8.             The same certified Extract from Tranent Parish Register, which also contains the following:  30 June 1618, Christopher Seaton, son to George Earl of Winton, departit this lyf.

9.             In the MS Record by George third Earl of Winton, already referred to, the following birth is recorded:  Upon the 13^th of Mairche 1620, my Lady Winton was delyuerit of her 4 son, callit Alex.

10.         And in the same work also, there is recorded:  Upon Wednesday ye first of Maye 1623, my Lady Wintoun was delyuerit of her fyft sone, about four in ye morning, callit Francis.

11.         In Viscount Kingston’s Continuation of the History of the Seaton Family, already referred to, it is likewise stated that the above Christopher and Robert, the two eldest sons of the second marriage, both died young.

Viscount Kingston was their brother, that is by the first marriage, and therefore had the best access to know the fact.

12.         In the said certified extract from the Tranent Parish Register, the following birth is recorded: 28 January 1631, George Earl of Winton a S. born, his N. Christopher

13.         Likewise, in the same certified extract from Tranent Parish Register, the following birth is recorded: 8 January 1633, George Earl of Winton a S. b., his N. William. 

14.         Likewise, in the Tranent Register there is recorded: 29 September 1639, George Earl of Winton, a son B., his name John.

15.         And in the same Register there is recorded: 10^th November 1641, George Earl of Winton, ane son baptized.  The name is omitted in the register, but, as it will immediately be proved, by other documents, that the only other son of this marriage was Robert, afterwards Sir Robert Seaton of Winygoul, this entry in the Register necessarily applies to him.

16.         In Viscount Kingston’s Continuation of the History of the Seaton Family, already referred to, it is stated that Robert was the youngest son of the third Earl’s second marriage, and for the reasons already stated, his authority seems the very best.

17.         Instrument of Resignation of the Earldom of Winton, dated 21^st April 1619, in favour of George the third Earl of Winton, in liferent, and George Lord Seton, his son, in fee.

This proves that the above George, the second son, had become, at 21^st of April 1619, the third Earl’s eldest son, in consequence of the death of his elder brother of the same name, in infancy, whose birth has been proved, on the preceding page.

18.         Charter by Sir Alexander Touris in favour of George Earl of Winton, dated June 1643, This charter is in favour of (1^st) the above George the third Earl, in liferent; and (2d) the above Christopher, who is designed eldest son of the second marriage; (3d) the above William, ejus fratri germano; (4^th) the above John, etiam fratri germano; and (5^th) the above Robert, etiam fratri germano; and the next substitution is, to the above Sir Alexander of Craigiehall, afterwards Viscount Kingston, who is designed filio legitimo secundo genito of the first marriage, while the next and last substitution is the third Earl’s nearest and lawful heirs-male.

   This proves, that at the date of this charter, June 1643, the only surviving sons of George the third Earl, besides George, the eldest, wee (1^st) the above Alexander, afterwards Viscount Kingston, who was then youngest surviving son of the first marriage; (2d) Christopher, the third born, but eldest surviving son of the second marriage; (3d) William, the next son of that marriage; (4^th) John the next son; and, (5^th) Robert, the youngest son of the family.  This document also proves that there were no other sons of the third Earl than his eleven named in this head, for if at the date of the charter there had been any other sons in existence, they would certainly have been called nomination in the destination, as the five above named were, in place of being only called to the succession under the general destination to the third Earl’s nearest heirs-male.

And by this marriage, his only male issue was four sons:

1.       George, born 4^th May 1642, afterwards George fourth Earl of Winton.

               N.B.      This is the Earl to whom Lord Eglinton claims to be served, and the proof of his extinction will be found detailed under the 2d Branch, p. 10 hereof.

2.             Alexander, born 21^st January 1644, died before 1673, without issue.

3.             Christopher, born 15^th April 1645, died without issue.

4.             Francis, died an infant, aged two years.

As Viscount Kingston was full brother to George Lord Seaton, and survived him till 1691, and it will immediately be seen was tutor to his son, he had the very best success to know the facts.

3.       Testament Testamentar of George Lord Seaton, whereby his brother the Viscount Kingston was nominated tutor to George fourth Earl, Lord Seaton’s eldest son, which office he discharged until 1656, when the fourth Earl attained the age of fourteen.

As the maker of this testament describes himself George Lord Seaton, and since he is similarly described in the confirmation following upon it, this of itself proves that he must have predeceased his father, and before 1652.

6.       And in the same Register: 15 April 1645, George Lord Seaton and Dame Henrietta Gordon, his lady, a S.B., his name Christopher.

7.       General Retour of George fourth Earl of Winton dated 12^th May 1653.  In this retour the Earl is served heir-male in general to George the third Earl of Winton, his grandfather, which proves his descent as stated.

8.       Deed of entail by George fourth Earl of Winton, dated 22d September 1669.  This entail is in favour of (1^st) the Earl himself, and the heirs-male of his body; (2d) the above Alexander, our immediate younger brother; (3d) the above Christopher our youngest brother; and (4^th) the sons of Alexander Viscount Kingston, “our uncle”.

This proves, that at 22d September 1669, the only surviving sons of George Lord Seaton were George the fourth Earl, Alexander, and Christopher.

The ten documents last referred to prove the marriage, male issue, and death of George Lord Seaton, and that he predeceased his Father, the third Earl of Winton.

The preceding authorities prove the succession of the fourth to the third Earl, his grandfather.

The preceding six heads prove, as was announced in the first proposition, that George fourth Earl of Winton, to whom Lord Eglin ton claims to be served heir, was the grandson and heir-male of the body of George the third Earl of Winton who was the second son and heir male of the body of Robert the first Earl of Winton, by his Countess Lady Margaret Montgomerie – Robert the eldest son, who was second Earl of Winton, and who had previously resigned the estates and honours in favour of the said third Earl, having died without issue, and which first Earl of Winton was the Common Ancestor both of the fourth Earl of Winton and of Lord Eglin ton.

Under this branch there have also been shown the whole immediate male collaterals of each of the successive Earls who would have been entitled to succeed preferably to Lord Eglinton, and that there were no other collaterals so entitled to succeed.

Under this branch will be shown the whole male descendants who ever existed of the male collaterals of each of the successive Earls who would have been entitled to succeed preferably to Lord Eglin ton; and the extinction of both the male collaterals themselves, and their male descendants, will be proved.

VII    HEAD – INSTRUCTING

THAT the above George fourth Earl of Winton, obtained, on 31^st July 1686, upon his own resignation, a charter of resignation, novodamus, and erection of the estates, and of the titles of honour of Earl of Winton, Lord Seaton and Tranent, in favour of himself and the heirs-male lawfully to be procreated of his body, and which contains a separate substitution to his heirs-male general; that he married twice – first, Lady Mary Montgomerie, eldest daughter of Hugh seventh Earl of Eglinton; and, secondly, Christian Hepburn, heiress of Adistoun; and that by the first marriage he had an only daughter, who died an infant, aged three years; and by the second marriage he had two sons.  These were the only issue, male or female, this Earl ever had.

The sons were:

1.   George, born 1678, afterwards George, fifth Earl of Winton, attainted 1716, and died at Rome 30^th September 1749, unmarried and without issue.

2.   Christopher, born in 1683, died unmarried, without issue, 5^th January 1705.

3.   In Nisbet and Mylne’s Manuscripts, so often referred to, the facts as to the marriages and issue are stated as above.  Both authors were cotemporaries of the fourth Earl, and wrote during the lifetime of himself and his sons. 

4.   In Sir Robert Douglas’s Peerage, published in 1764 and in an edition and continuation of that work published by John Philip Wood, Esq., in 1813, the facts are stated as follow:  George fourth Earl of Winton, married first, 4^th September 1662, Lady Mary Montgomerie, eldest daughter of Hugh seventh Earl of Eglinton, by whom he had one daughter, Lady Mary, who died in infancy.

His second wife was Christian, daughter of John Hepburn of Alderston, in the county of Haddington and by her, who died in 1704, he had two sons:

1.       George fifth Earl of Winton 

2.      Honourable Christopher Seton, who died in 1704, unmarried.

5.   Extract Registered Sasine of the Earldom of Winton, &c, &c, dated 9^th April, and recorded 5th June 1697, in the particular Register of Sasines at Edinburgh, in favour of George Lord Seaton, afterwards fifth Earl.  This sasine bears to proceed upon a disposition by George, the fourth Earl of Winton, dated 7^th April 1697, in favour (1^st) of the said George Lord Setoune, who is designed eldest lawful son of Earl George; and (2d) Christopher Seaton, second lawful son of the said noble Earle.  The sasine does not bear that the disposition was in favour of any other party nomination, although it recites a variety of general substitutions to heirs to be proreated of the Earl, and his above named two sons; and, at p. 24, there is recited a provision in favour of Dame Christian Hepburne, Countess of Wintoune, our spouse, in caise she shall happen to survive was (the fourth Earl).

This sasine proves the two sons of George the fourth Earl’s second marriage; and that of 7^th April 1697, when the youngest sone would be fourteen years of age, he had no other issue, male or female.

6.   Extract Registered Disposition and Assignation by George fourth Earl of Winton, of his general estate, in favour of his eldest sone George Lord Seaton, dated 7^th April 1697, and recorded in the Books of Session, 27^th June 1710.

In this Disposition the said George Lord Seaton is designed our eldest lawful son, procreate betwixt us and Dame Christian Hepburn, Countess of Winton, our spouse.

9.   Disposition and Assignation by the same to the same, dated 29^th May 1703, of an apprising of the lands of Carrieston, for 9000 merks.  In this deed, Christopher is like wise called he Earl’s second son.

10   Testament of the said George fourth Earl, dated 21^st February 1704.  This testament proceeds as follows:  We nominate, constitute and ordain our well-beloved sons, George Lord Seaton, our eldest son and apparent heir, and Mr. Christopher Seaton, his brother-german, procreate betwixt us and our well-beloved spouse Dame Christian Hepburn, to be our only executors, sold legatees, and universal intromitters with our haill goods, &c.

Neither this testament, nor any of the other deeds just described, make mention in any way of any other son or child of the fourth Earl, other than the two sons, George Lord Seaton and Christopher; and this, joined to the fact that the testament was executed twenty-one years after the birth of Christopher the second and youngest son, and as will immediately be seen, within a month of the Earl’s death, establishes that there were no other issue of the fourth Earl.

VIII    HEAD – INSTRUCTING

That the said George fourth Earl of Winton died 6^th March 1704, and was succeeded by the above mentioned George Lord Seaton, his eldest son, as fifth Earl of Winton.

1.   In a printed condescendence in an action between the children of James Smith (factor for the fourth Earl) and the said George the fifth Earl, which bears date 24^th January 1715, it is stated, that George the fourth Earl had died upon the day of _________ 1704 years.

2.   General Retour of the Service of George fifth Earl of Winton to his father, dated 4^th July 1710.  This retour designates the parties as follows:  Quondam Georgius Comes de Winton &c.  Pater Georgij nunc Comitis de Winton, Domini Seaton et Tranent, latoris præsentium, ejus unici legitimi filij nunc viventis procreat, inter illum et quondam Christianam Comitissam de Winton, ejus sponosam.  Obiit ad fidem et pacem S.D.N.Reginæ nune regnantis; Et quod Dictus Georgius nunc Comes de Winton, est legitimus et propinquior hæres masculus et lineæ dicti quondam Georgij Comitis de Winton, ejus patris.  This service proceeded at Edinburgh, in the Macers’ Court, under the commission issued from Chancery, and before the following jury:

3.   In a Printed Information, dated 19^th July 1711, in an action between George the fifth Earl and Archibald Viscount Kingston, it is stated that the above Christopher who was the fourth Earl’s second son, lived nine months after the Earl, (fourth Earl).

It will be proved that Christopher himself died 5h January 1705, and therefore the fourth Earl must have died before April 1704.

4.   Charter of Resignation by George fifth Earl of Winton, in favour of George Seaton of Barns, dated 31^st March, 1715.  In this charter the granter is designed Georgius Comes de Winton, Dominus Seaton et Tranent, unicus legitimus filius et hæres deservit, et retornat, quondam nobili et potenti Comiti Georgio Comiti de Winton, nostro patri, secundum Retornatum Nostrum o Cancellario extractum de data quarto die mensis Julij anno 1710.

This proves that the fifth Earl, alive in 1715, was the same Earl who was served by the retour of 1710.

IX      HEAD – INSTRUCTING

That George fifth Earl of Winton, having, as has been shown, succeeded his father in 1704, was, of date 16^th and 195h March 1716, convicted of high treason; but afterwards, on the 4^th August 1716, escaped from the Tower, and died at Rom the 30^th September 1749; and that he had no issue, having died unmarried.

1.       In Crawford’s Peerage of Scotland, which was published in 1716, there is no mention of the said George the fifth Earl having been previously married; and if such had been the case, the fact must have been stated as of more consequence than several particulars which Crawford does mention regarding his Lordship, and in conformity with the writer’s rule in other cases where marriage had taken place.

2.       In Nisbet’s Heraldry, published in 1722, there is likewise the same silence as to any marriage of the said Earl.

3.       In the Calendar of the House of Lords in 1716 – duplicate in the Advocates’ Library, published by authority – the proceedings on the impeachment of this Earl are stated, abridged from the Journal of the House.  In the whole proceedings, there is no mention made of any application by wife or child for admission to see the attainted Earl, or any reference whatever to the Earl having any such.  This is remarkable, because, during the impeachments of other Lords before the same tribunal, and at the same period, where the party had a wife or children, such applications and references were usual, and the circumstances related; and they were the more to be expected in the present instance, as the Earl sought delay, grounded upon the non-arrival of witnesses and friends from the North.

4.       Factory, dated 21^st, and Recorded in the Books of Council and Session the 27^th January 1716, by George Earle of Wintoune, Lord Seton, Baron of Tranent, in favour of Elizabeth Stevenson, relict of Archibald Pitcairn of that ilk, Doctor of Medicine, which narrates that Forsameikle as our present circumstances does not allow us to be in Scotland for managing our affairs, &c, and contains no reference to family or marriage.  The testing clause is as follows:  In witness whereof, written by Charles Menzies of Kinmundie in Scotland, we have subscribed thir presents, at and within the Tower of London, ye 21^st day of January, 1716 years, &c.

                                    This corroborates the other proof that the fifth Earl was not married.

5.       In Patten’s History of the Rebellion, printed at London, 1717, (p. 130) it is stated that George Seaton, Earl of Winton, made his escape ot of the Tower, August 4^th, 1716.

6.       In the Caledonian Mercury, No. 4567, 16^th January 1750, the attainted Earl’s death is announced as follows:  Letters from Rome bring advice that the Earl of Winton, who was condemned to die in 1715, but escaped from the Tower, died there the 30^th of September last, N.S., aged upwards of 70, and was buried in the place set apart for the Protestants.

The fact of the attained Earl having gone to Rome after his escape from the Tower, is established by Lord Orford, who, in speaking of the Pretender, mentions Lord Winton when he (Lord Orford) was at Rome, as forming one of the Pretender’s slender Cabinet.

7.       In Edinburgh Magazine for 1750, the attainted Earl’s death is likewise announced as follows:  December 19, 1749.  At Rome, aged above 70, George Earl of Winton.  His Lordship was engaged in the Rebellion 1715, and surrendered at Preston in Lancashire, on the 14^th November that year, with several Scots and English Lords, &c, to the Generals Carpenter and Wills.  He was brought to London, December 9^th and on the 10^th of January following, was impeached by the Commons of high treason.  On the 19^th, the date appointed for the trial, he pled no guilty, and his trial was put off from time to time, till the 15^th of March when he was brought, and received sentence of death on the 19^th; but he escaped from the Tower soon afterwards, and had lived in foreign parts ever since.

It is to be presumed, that in giving such accounts of the attainted Earl as the above, if he had left lawful issue, or had been married, the facts would naturally have been stated.

8.       In the London Magazine, January 1750, the attainted Earl’s death is announced as follows:  The late Earl of Winton, at Rome, on December 30^th.  He was condemned to die for the Rebellion of 1715; but escaped out of the Tower.

9.       In Sir Robert Douglas’s Peerage of Scotland, published in 1764, it is expressly stated, that the attainted Earl died at Rom, anno 1749, and having no issue, in his ended the male line of George Lord Seaton, eldest son of George second Earl of Winton, and that the male line of Alexander Viscount Kingston, his (George third Earl’s) second son having also failed, the representation of this noble family devolved upon the descendants of Sir John, his (third Earl’s) third son, (Sir John Seaton of Garleton).

N.B.  The second Earl in the above passage should be third; -- the slight numerical difference arising from the circumstances of the second Earl’s Resignation, as already detailed under Branch 1. p. 4.

      This statement was made by Douglas only fifteen years subsequent to the attainted Earl’s death, when the facts must have been well known.  The Record by Sir Robert Douglas in all that relates to the Winton family, rests upon far higher and more direct authority than is usually the case with similar works, as is established by the evidence which he gave as a witness, and one of the inquest in the service to be immediately referred to, of Mrs. Mary Seaton or Arrat, youngest daughter of Sir George Seaton second of Garleton, to her eldest brother Sir George Seaton in 1769, being five years after he published his work.  In that service he not only deponed to the propinquity, and that the genealogy mentioned in the brieve and claim is true and authentic.  But Sir Robert gives as his cause scientia that he had in his hands the whole papers of the family of Winton when he wrote his book of the Peerage of Scotland, and examined these; which book he produces to the Jury.

10   In the Scots Magazine for April 1769, the following is recorded among the deaths:  March 9, (1769) At Versailles, in the 84^th year of his age, Sir George Seaton of Garleton, representative of the Winton family.

This proves that Sir George was actually acknowledged, as in point of fact he was, the representative of the Winton Family, from 1749, when the fifth Earl died, down to Sir Georg’s own death, in 1769.  Sir George was the grandson of Sir John the first of Garleton, younger son of George the third Earl, but could not have become the representative of the Winton Family, unless the attainted Earl had died without male issue.

This evidence that Sir George was commonly styled Earl of Winton subsequently to the attainted Earl’s death, is an additional proof of the fact that the latter left no male issue.  It will be observed, that this was a service for the purpose of taking up a succession, and not merely to establish a relationship.

13     Subsequent to the death of this Sir George Seaton of Garleton, thus commonly recognised as Earl of Winton, the next heir-male of the Garleton family was is cousin Ralph Seaton.  He was also acknowledged by the connexions of the Winton family to be the male representative of the house, and the register of his burial accordingly bears that he was commonly called Lord Seaton, and representative of George Seaton Earl of Winton, attained in 1715.  At Ralph’s death again in 1782, the next heir to the honours was his nephew John Seaton, who, prior to his death in 1796, was acknowledged and addressed as male heir to the titles of Winton.

The proof of these facts relative to Ralph and John Seaton will be found more fully detailed under the head of Descent and Extinctions of the Garleton Branch, of which they were members, from p. 33 to p. 36 hereof.

The six authorities last described prove that after the death of the fifth and attainted Earl, in 1749, three members of the Garleton family did severally assume the honours, or were acknowledged to have right to them, thereby establishing that the fifth Earl left no issue.

      Reduction of the Service of George Seton, Saddler, as great-great-grandson and heir-male of line of George fourth Earl of Winton.

      It is judged proper under this head, to detail the evidence adduced in support of, and that which entirely sets aside, the pretensions of a person who at one time, within the last few years, claimed to be descended from a son of the fifth and attainted Earl, namely, George Seton, A Saddler, in Bellinghamn; and who, by a proceeding before the Bailies of the burgh of Canongate, in the absence of any opposing party, obtained himself, in July 1825, served heir-male of line of George the fourth Earl, who he alleged was his great-great-grandfather; and the evidence shall be stated by which he tried to show that the attainted Earl had been married, and that there was a son born of the marriage, from whom he claimed to be descended.  This examination shall the more readily be entered upon, as of itself it affords the most complete confirmation of the proof that the attainted Earl left no lawful issue, but died unmarried.

      There is accordingly, in the first place, produced—

14   The Retour of a General Service, dated 25^th July 1825, which was carried through before one of the Bailies of the burgh of Canongate, and which served a person designed George Seton, residing in Bellingham, in the county of Northumberland, as nearest and lawful heir-male of line in general to the said George fourth Earl of Winton, his great-great-grandfather.  And there is also produced—

15   Extracted Decree of Reduction of the said General Service, dated 7^th July 1826, obtained at the instance of the tutors of Lord Eglinton against the said George Seton, whereby the Lords of Council and Session reduced and annulled the said retour, and whole grounds and warrants thereof; and decerned and declared the same to have been in judgment, and restored the Earl of Eglinton against the same in integrum, for the reasons and causes stated in the decreet.  These reasons, inter alia, are that the said service proceeded in absence of any contradtictor, and without evidence to prove that the defender (George Seton) was at all connected with the foresaid George fourth Earl of Winton.  Tertio, The defender could not then prove, nor can he now prove, that he is heir-male of the said George fourth Earl of Winton, or indeed of any Earl of Winton whatsoever.  Quarto, The pursuer has evidence which, if it were incumbent on him to adduce, would be sufficient to instruct that, if the said defender was at all descended from the said Earl (which he has by no means proved) it could only have been through an illegitimate line.

      This claimant, George Seton, described himself in the proceedings merely as residing in Bellingham, in the county of Northumberland, and as only surviving son of Charles Seton, residenter there, who was only surviving son of Charles Seton, residenter at Dunterly, in the parish of Bellingham, who, it was affirmed, was the only son of George fifth and last Earl of Winton, and who was elder son of George fourth Earl on Winton.  And although he does not any where affirm the legitimacy of the son of the fifth and attainted Earl, from whom he thus says that he is descended, he no doubt claimed to be served nearest and lawful heir-male of line in general to the fourth Earl, as being his great-great-grandfather.  It was alleged that George then attainted Earl had been married about the year 1710 to a person of the name of Margaret M’Klear, daughter of a physician in Edinburgh; and that this was intended to be the date of the alleged marriage is also fixed by one of the productions, which is described as a certificate by Mr. Thomas Gordon, minister at Bellingham, of the birth of (simply) Charles Seton, dated 11 June 1711; this being the son who was said to have been the issue of the marriage.  The marriage was said by some of the witnesses to have taken place in a Catholic chapel in Edinburgh; but there was produced a certificate by the schoolmaster of Tranent, which the list describes to be as to the parish record of Tranent being lost between the years 1685 and 1718, between which period (the list proceeds) George fifth Earl of Winton was married to Margaret M’Klear.  No questions, however, relating to the marriage were put to the only witness examined in Scotland, and who resided in Tranent.  It was said that this Charles Seton, the son of the attainted Earl by Margaret M’Klear, and born in June 1711, afterwards resided as a labourer at Dunterly, in the parish of Bellingham, where he married, in 1740, Ann Dodd, and died there, September 1781, when he would be aged 70; and that the fourth and youngest son of this marriage, Charles Seton, was born at Bellingham, in Northumberland, December 1755, married, 105h March 1790, Margaret M’Allester, and died February 1823; and that the third and only surviving son of this marriage was the said George Seton, who obtained the service on 25^th July 1825, as heir-male of line of George fourth Earl of Winton.

      There being thus no attempt at proving the marriage, the only evidence adduced was directed solely to the purpose that, according to the impression among the people in the neighbourhood of Bellingham, where the child was said to be born, a marriage had taken place, and that the child was the lawful son of the earl through such marriage.  The evidence consisted of, 1^st, The depositions of five persons, whom the claimant himself stated to be aged and infirm and who were all of the class of husbandmen, or widows in Northumberland, and the depositions were taken before a Justice of Peace there in May 1825, previous to the issuing of the brieve in favour of George Seton, or any authority being granted for the purpose; there was also the deposition of a person residing in Tranent, taken also before a Justice of Peace, equally prematurely and without authority, and this last was the only evidence taken in Scotland, 2d, Certain certificates from the parish registers in Northumberland, where the parties resided, purporting to be of the births, marriages, and burials of several members of George Seton’s family, from the birth of Charles in 1711, down to the birth of George Seton himself; 3d, Five letters, dated from 1734 to 1750, from Margaret M’Klear to the said Charles Seton, said to have been the son of the attainted Earl; with a book said to contain entries of the births of Charles Seton’s own family, and the names of his father and mother, said to be the Earl and Countess of Winton.  All these certificates and letters wee, however, delivered back to George Seton on the day of the service.

      The story of this George Seton, as related by his own witnesses, is the following:-- The first is the deposition of a widow names Sarah Thomson, aged 82, and who being interrogated as to her knowledge of Charles Seton who formerly resided at Dunterly in the parish of Bellingham, Depones, that she remembers him upwards of sixty years ago, when he resided at Bearridge, &c, that he afterwards came to Dunterly, aforesaid, where he died about 40 years ago, and that she, this deponent, was at his funeral; also depones having heard that the said Charles was the lawful son of the Earl of Winton; that the Countess of Winton, in the troublesome times, came to Bellingham, and was brought to bed of the said Charles Seton; and that he was brought up by one Michael Thompson; also depones that she has heard the said Earl and Countess were married in a Catholic chapel in Edinburgh; that the said Earl afterwards engaged in the Rebellion, and in consequence lost his rights; also depones that she has seen a mourning ring in the possession of the said Charles Seton, which it was always believed had been sent to him by the Earl of Winton, and that it was a mourning ring for the Countess of Winton; that there were the letters M.Me upon it, which this deponent understood was meant for Margaret M’Klear, which was the Countess’s name; as also, depones that it was always reported and believed in the neighbourhood that the said Charles was the son and heir of the Earl of Winton.  A still more particular account is given by Ann Hope, aged 70, who being interrogated as to her knowledge of Charles Seton, who formerly resided at Bearridge, and afterwards at Dunterly, both near to Bellingham, depones that she has frequently seen him, and now recollects him upwards of 60 years; that she has herd and verily believes that the said Charles Seton was the lawful son and heir of George the fifth Earl of Winton, by Margaret M’Klear, the Countess of Winton’ that she has heard from one Mary Weir and Jean Common, both formerly of the parish of Bellingham, and now long since dead, that the said Countess of Winton was passing through Bellingham aforesaid, on her way to Dilston, the seat of the unfortunate James Earl of Derwentwater; that the said Countess, from fatigue of body and mind, there at Bellingham aforesaid, was taken in premature labour, and there bore the said Charles Seton; and that they, the said Mary Weir and Jean Common, attended the said Countess in her labour; that the said Countess was brought to bed at the house of one William Robson, in Bellingham aforesaid, which said house was at that time the principal inn there; and that the said Mary Weir was the daughter of the said William Robson, and the said Jean Common the servant of the said William Robson; that the said Countess of Winton resided at Bellingham about a month, when she placed the said Charles Seton with one Michael Thompson of Houxtey, near Bellingham aforesaid; that the said Countess then left Bellingham aforesaid in a carriage, attended by a footman, first leaving with the said Michael Thompson a letter directing him where to receive pay for nursing the said child; and that clothing was given to the said Michael Thompson for him, suitable to his birth, rang; and this deponent farther declares, that she has heard from the said Mary Weir and Jean Common, and verily believes the same to be true, that the said Michael Thompson afterwards went to Seaton House in Scotland, and there saw the said Earl of Winton walking in his garden; that the said Michael Thompson told, when he returned home, that the said Earl had requested of him, the said Michael Thompson, to consider the said Charles Seton, as the son of a nobleman, and at that time acknowledged him to be his lawful son, and expressed great concern for his welfare, and happiness; and this deponent farther declares, that she has heard and believes that the said Earl of Winton engaged in the unfortunate Rebellion of the year seventeen hundred and fifteen, and had in consequence to fly abroad for his safety; that she has also heard he returned to Berwick-upon-Tweed in disguise, and wrote to the said Michael Thompson to bring the said Charles Seton to him; that before the said Michael Thompson could go there, the said Earl of Winton was again obliged to fly, from a fear of being discovered, (a large reward at that time being offered for him;) that after this time the payments for the keep of the said Charles were discontinued, and that he was in consequence brought up to manhood by the said Michael Thompson, and worked as a labouring man.

      Other witnesses also depone, that they had heard that Lady Seton came to Bellingham, and bore the said Charles Seton there; and that the said Charles Seton was nursed by Michael Thompson, &c:  That the Countess of Winton, in the troublesome time, left Scotland, and came into Northumberland to be out of harms way; at that time, the Earl her husband was in trouble; that, in passing through Bellingham, she was taken in labour, and bore the said Charles Seton, the elder, &c:  That it was always reported in the country that Charles Seton was the Earl of Winton’s lawful son; and that he was in possession of several things, amongst others, a ring and pocket Bible, which were reported to have belonged to the said Earl of Winton; that the ring appeared to be a mourning ring, and that this deponent hath since seen both the Bible and ring in the possession of the present George Seton of Bellingham, the grandson of the elder Charles Seton.

      Thomas Common, aged 80, depones, That he has heard the said Michael Thompson received a letter to meet the said Countess at Kelso; that, when he went there, the said Countess did not come, but that the Earl of Winton himself came; that the said Earl then acknowledged the said Charles Seton to be his lawful son, and begged the said Michael Thompson to take care of him, and to give him a good education, and bring him up in the Protestant religion, as he intended him afterwards to travel; that the said Earl paid for his maintenance; and, on parting, that the said Earl asked of the said Michale Thompson how he should know his son, the said Charles Seton, if he should meet him at any future time; that the said Earl then took out two rings, and gave one to the said Michael Thompson for the said Charles Seton, and observed that they would know each other by producing the rings:  Also depones, that he has heard, soon after that time, the said Earl engaged in the Rebellion, and fled abroad for safety, &c:  Also depones, That he, this deponent, has seen letters which came to the said Charles Seton from his aunt, who resided at Prestonpans; that her name was Catharine M,Klear, that this deponent recollects hearing from the said Charles Seton, that he had visited his aunt in Scotland, and that she then gave him a pocket Bible which had belonged to his father, the Earl of Winton; that this aunt was the Countess of Winton’s sister; that the said Countess had then been long dead, &c.

      The Claimant George Seton, having fixed the period of the alleged marriage of his great-great-grandfather George the fifth and attainted Earl with Margaret M’Klear, to have been in the year 1710, and by written evidence that the period of the birth of their alleged son was 11^th June, 1711, it is only necessary to bear in mind that it was not until the year 1715—that is, four years after the birth – that the Rebellion broke out; and it was not until the following year that the Earl of Winton was convicted of having joined in it.  And, indeed, although some of the witnesses seem to ascribe the cause of the birth taking place in Northumberland generally to the troubles of the times, which had induced the mother to leave Scotland, yet those of them who spoke more precisely, unequivocally state that it was after the birth that the Earl became concerned in the Rebellion.  During the four or five years between the birth of the child and the period of the Rebellion, while the child Charles Seton is said to have been boarded at Bellingham in the most humble way, and while the alleged two interviews between Thompson, with whom he resided, and the Earl, took place at Kelso and at Seaton Palace, the Earl was all the while living at Seaton Palace; and no record nor evidence exists, otherwise than in the depositions which have been cited, that his alleged marriage took place, and far less is there any evidence in relation to the alleged issue of it.  The proceedings in the attainder, bear no mention of the Earl being visited in the Tower by the alleged Countess or the son; and it has not been said, and certainly is not the fact, that any application was ever made for any allowance out of the Earl’s forfeited estate to the alleged Countess or the issue of the marriage, as was uniformly the case where the attainted left either widow or child.

The documentary evidence detailed under this head, proves the attainder of George fifth Earl of Winton, and his subsequent death without lawful issue, and unmarried.  Evidence, also, of his death without issue, will be found under the head of the extinction of the Garleton Branch.

EXTINCTION OF COLLATERALS

      It will be observed, that the preceding part of the Abstract of Evidence establishes the direct descent from the first to the fifth Earl, and shows the whole of the immediate male collaterals of the successive Earls.  The death of each intermediate person in this direct line is proved by the succession of the next Earl to him.  The evidence now to be submitted, under the remaining heads of this branch, will prove the extinctions not only of the immediate male collaterals whose births have already been shown, but also those of the whole of their male descendants, being the parties next in succession, and the only heirs who would have been entitled to succeed to the honours preferably to Lord Eglin ton.  Although there were no fewer than thirteen of these immediate collaterals, their extinction will easily be followed, ad there were only two of them who left issue, and they consequently resolve into only two families, distinguished in the present Abstract, and also on the Table of Pedigree, by the titles of the Kingston branch and Garleton branch, the former being descended from Alexander first Viscount Kingston, and the latter from Sir John Seaton first of Garleton, both younger sons of the third Earl of Winton.  The male line of the Kingston branch terminated in the second generation, by the death, in 1719, of the youngest son of the first Viscount, namely, James the third Viscount Kingston, and was extinct thirty years before the death of the attainted Earl in 1749.  The Garleton branch again divided into two lines, of which the main line terminated by the death of Sir George Seaton, commonly called Earl of Winton, without issue, in 1769, and the other line distinguished in the present Abstract, and also on the Table of Pedigree, by the title of the junior line,--failed in the male line by the death of John Seaton at London in 1796.  Upon the failure of both the branches of Kingston and Garleton, the right of succession reverted to the Eglin ton line, which thereby became entitled to the honours, and the male representation of the house of Winton.  The particulars of the Eglin ton line will be afterwards detailed under Branch III of the Evidence.

      In following out the course which has been stated in reference to the extinction of the immediate male collaterals, and their descendants, and having established under the 9^th Head, the attainder and death without issue of the fifth Earl, who was eldest son of the fourth Earl, the first immediate collateral to be extinguished is Christopher Seaton, the second and only other son of the fourth Earl, and who predeceased his brother, the attainted Earl.  Christopher’s death has already appeared (nos. 55 and 57,) but the documents by which it is so shown shall here be resumed, and the proof that he left no issue also detailed.

X       HEAD – INSTRUCTING

         That Christopher Seaton, the second and only other son of the fourth Earl, besides his eldest brother the fifth Earl, died without issue, upon 5^th January 1705.

1.       General Retour of the service of George fifth Earl of Winton to his father, dated 4^th July 1720, and bearing that he was the Earl’s only surviving son by his Countess Christian, who was his second wife.

2.       charter of Resignation by George fifth Earl of Winton, in favour of George Seaton of Barns, dated 31^st March 1715, and bearing that the Earl was only surviving lawful son of Earl George his father.

3.       In the MSS of Mylne the antiquary, so frequently referred to, and who was contemporary of Christopher, it is stated that Mr. Christopher was cut off by death, 5^th Jan. 1705, to ye great regret of all that knew him.  The circumstances attending the event are recorded in a way that leads necessarily to the belief, that if Christopher had left issue, or been married, the fact would have been mentioned.  And, from its being stated, that his death took place in consequence of a convivial meeting held on occasion of his Christening, which must mean the celebration of his attaining majority; his death, at the age of twenty-one, adds to the presumption against his having ever been married.

4.       In Fountainhall’s report of an action which depended, in 1707, between the attainted Earl and Archibald second Viscount Kingston, regarding intromissions with the Rents of the Winton estate by the Viscount, subsequent to Christopher’s death, it is expressly stated that, on failure of the attainted Earl, the Kingston family was the next branch of the tailzie, that is, under the charter of the honours and estates, dated 31^st July 1686.  According to the terms of the destination in that charter, the succession of the Kingston family, who were only collaterals to the direct line, could not have taken place, unless Christopher had died without issue.  Lord Fountainhall had the best opportunity of knowing the fact, for he was one of the inquest at the service of the attainted Earl, already referred to.

5.       In a printed information, dated 19^th July 1711, in one of the actions between the above Viscount Kingston and the attainted Earl, it is stated that the Earl of Winton having gone abroad during the life of the late Earl his father, had the misfortune, in his absence, to lose his father, mother, and only brother.  And in this printed paper there is no mention whatever of this only brother, namely Christopher, having had issue, or having been married.

6.       In the printed Condescendence already referred to, it is stated that Christopher had died upon _____ day of January 1705 years.

7.       Summonds of Declarator, dated and signeted 23^rd May 1710, at the instance of Archibald Viscount of Kingstoune, designing himself as nearest and lawful apparent heir to the deceased George Earl of Wintoune (4th Earl,) against George Seaton, pretended son and heir to the said umq George Erle of Wintoune.  This action was instituted for the purpose, it is understood, of having it declared, that Viscount Kingston was then entitled to succeed to the estates and honors of the Winton family, under the charter of 1686, on the ground that the fifth Earl, and his brother Christopher, were both born before the marriage of their parents, and that the latter was then dead.  This declator was immediately abandoned, in consequence of the earl having obtained, on 4^th July 1710, the service already described, before a jury, composed of the Duke of Montrose, and five other peers, and the Lord President and Lord Justice Clerk, and seven of the other judges of the Court of Session, as nearest and lawful heir-male, and of line of his father.  The fact, however, of the declarator being directed solely against the fifth Earl, proves the previous decease of Christopher, and without male issue, as either he or they would, as descendants of the fourth Earl, have stood in the same situation, and presented the same obstacle to Viscount Kingston’s succession, as the fifth Earl himself did.

8.       In Nisbet’s Heraldry, which was written after 1704, and published in 1722, when treating of George fourth Earl of Winton, he says, Secondly, he married Christian, daughter and co-heir of John Hepburn of Adiston, and with her had two sons, George Lord Seaton, and Mr. Christopher, who died unmarried.  The Earl died the 6^th March 1704.  Nisbet, being a contemporary of Christopher, had the best access to know the fact.

9.       The same fact is stated in Sir Robert Douglas’s Peerage, published in 1764, already quoted, where he mentions as the sons of the fourth Earl by his second marriage, --

1.                   George fifth Earl of Winton

2.                   Hon. Christopher Seton, who died in 1704, unmarried

Reference is also made to the evidence stated under the ninth Head, which shows that three members of the Garleton branch severally assumed the honours, or were acknowledged to have right to them, from the period of the fifth Earl’s death in 1704, to the failure of the Garleton branch itself in the male line in 1796 – as proving equally that Christopher, as well as the fifth Earl, must have died without leaving issue.

_____________________________

Having extinguished, under the 8^th, 9^th, and 10^th Heads, the fourth Earl of Winton, and his issue male and female, -- the Earl’s three younger brothers, being the next in the order of succession, will now be proved to have died without issue.

XI      HEAD – INSTRUCTING

         That the three younger sons of George Lord Seaton, the Father of the fourth Earl, namely, Alexander, Christopher, and Francis, all died without issue.

1.       In the MSS by Nisbet and Mylne, already so frequently referred to, it is stated that Mr. Alexander died with issue __ Mr. Christopher yet lives unmarried – and Francis died without issue.

This account appears, from entries in it, to have been brought down to about 1686, and, therefore, the only son alive, at that time is proved to have been Christopher.  As it is stated that he was unmarried, it follows that, down to 1686, he had no lawful issue.

2.       In Viscount Kingston’s Account of the Seton Family, the same facts are likewise stated.  Viscount Kingston was uncle to these three sons, and had been named by their father tutor to his eldest son, and had therefore particular occasion to know the facts.

3.       In the Entail, dated 22d September 1669, the two elder brothers, Alexander and Christopher, are named; but Francis is not named, nor any representing him.

This proves that Francis had died without issue.

6.       The evidence, too, that upon the fourth Earl’s death in 1704, the Kingston family wee held to be the next heirs-male of that Earl, failing his two sons, as has been established under the ninth head, proves that Christopher, the fourth Earl’s brother, as well as Alexander and Francis, the other two brothers, had died without male issue.

XII     HEAD – INSTRUCTING

         That Christopher Seaton, the third son of George third Earl of Winton, by his first marriage, died an infant.

1.       In Nisbet and Mylne’s MSS, it is stated that Lady Ann Hay (the third Earl’s first Countess) had several children, who died all young, except George Lord Seaton, who succeeded, and Alexander, who was created Viscount of Kingston.

This shows that Christopher must have been one of the children who died young.

                  The four authorities last described prove that Christopher, the third son of George third Earl of Winton by his first marriage, died on 30^th June 1618, an infant. 

XIII    HEAD – INSTRUCTING

         That Alexander, afterwards Sir Alexander Seaton, who was the fourth son of the third Earl of Winton, by his first marriage, was created Viscount Kingston and Lord Craigiehall, by patent dated 4^th January 1651; and that he married four times, viz-----

1^st   Jean Fletcher, only daughter of Sir George Fletcher, in February 1650, who died in August 1651.  Of this marriage there was issue a daughter.

2^nd  Elizabeth, sister and heiress of Sir Archibald Douglas of Wittinghame, on he 22d July 1652, who died 21 October 1668.  Of this marriage there were born seven sons, besides daughters.

3d   Elizabeth Hamilton, daughter of Lord Belhaven, in 1682, who died 5^th June 1685.  Of this marriage there was no issue.

And

4^th   Lady Margaret Douglas, sister of the Marquis of Douglas, upon 4^th August 1686, who died 12 October 1692.  Of this marriage, also, there was no issue

And that

The Viscount’s seven sons by his second marriage, with Elizabeth Douglas, the only marriage by which he had male issue, were---

1^st   Charles, born 4^th April 1653.  Died without issue, 7^th June 1682, aged 29.

2d   George, born 29^th July 1654.  Died without issue, in May 1678, aged 24.

3d   Alexander, born 4^th November 1655.  Died without issue, 4^th October 1676, aged 21.

4^th   Archibald, afterwards second Viscount Kingston, born 5^th October 1661; and died without issued, about 1714.

5^th   Arthur, born 30^th December 1663.  Died without issue, 23d October 1691, aged 27.

6^th   John, born 11^th October 1665.  Died 29^th April 1674, aged 9.

And

7^th   James, afterwards third Viscount Kingston, born 29^th January 1667.  Died without issue, in 1719.

3.       In regard to the first Viscount Kingston being the son of the third Earl of Winton, the following is from the Historical Annals of Sir James Balfour, Lord Lyon, a contemporary:---Sir Alexander Seaton, second son to George Earl of Winton, was created by his Majestic Viscount of Kingston and Lord Craigiehall, by patent bearing date at Perth, Saturday, the 4^th day of Januarii 1651.  The patent itself is not upon record.  It will be observed that the Viscount, at the above date, was actually the second surviving son, although the fourth son in order of birth.  Sir James Balfour was Lord Lyon, and peculiarly versed in the creations and descents of the nobility.

4.       Charter under the Great Seal, confirming a contract between George Earl of Winton (4^th Earl) with consent of Alexander Viscount Kingston, ejus tutoris.  The contract is dated 12^th January 1656; the confirmation, 16^th January 1662.

5.       Recognition by Archibald Master of Kingston to Arthur Seaton, second surviving son of Alexander Viscount Kingston, of the Barony of Whittingham,

The last three documents prove the creation of Viscount Kingston.

6.       The following Extract has been obtained from the Records of the Presbytery of Haddington:--Haddington, April 5, 1648.  This day we received a supplicatione from Sr. Alex Seatone of Craigiehall, son to the Earl of Wintoune, desiring, &c.

This notice confirms Sir James Balfour’s statement; and it will be observed that Sir Alexander is described of Craigiehall, being one of the family estates.

The nine authorities last described prove that Sir Alexander Seaton, who was the third Earl of Winton’s fourth son, was created Viscount Kingston and Lord Craigiehall, was married four times, and had seven sons, as proposed in the 13^th Head. 

XIV    HEAD – INSTRUCTING

         That the said Alexander first Viscount Kingston died 21^st October 1691, aged 71; that his three eldest sons, namely, Charles, George, and Alexander, ass predeceased him without issue; and that he was in consequence succeeded by his fourth son Archibald, second Viscount Kingston.

3.       Antenuptial Marriage-Contract dated 23d November 1695, between William Hay of Drummelzier, lawful son to the deceased John Earle of Tweeddale, and Lady Elizabeth Seaton, lawful daughter to the deceased Alexander Viscount of Kingston.

These three documents prove the first Viscount’s death.

4.       General Retour of Archibald Master of Kingston, dated 17^th September 1683, as hæres Caroli Magistri de Kingston, fratris germani immediate senioris.

This proves that at this date Archibald was the eldest surviving son, and that Charles, George, and Alexander, the three eldest sons, had predeceased. 

5.       Special Retour of the above Archibald Master of Kingston, dated 8^th September 1684, as Hæres Dominæ Elizabethæ Douglas, Vicecomitissæ de Kingston (ejus) Matris, in terries et Baronia de Whittinghame.

This likewise proves that Archibald was then eldest surviving son.

6.       Subsequent to the fourth Earl of Winton’s death in 1704, it has been seen that the Kingston family were then considered, in the event of the failure of his two sons, his nearest heirs-male.  In the processes which ensued upon this account between George the attainted Earl and the Kingston family, Archibald Viscount Kingston, was the principal party against the latter.  For this see the evidence under the 10^th Head.

7.       Contract between Archibald Viscount Kingston and Mr. James Seaton, his brother, dated 26^th March 1718, whereby the Viscount dispones to the above James Seaton the Barony of Whittinghame, under burden of an aliment to himself of 2000 marks.

8.       Libelled Summons before the Court of Session, signeted 23d May 1710, with execution thereon, dated 24^th May 1710, at the instance of Archibald Viscount of Kingston, nearest and lawful appearand heir to the deceased George Earl (fourth Earl) of Winton.

This proves that Archibald was the second Viscount.

The eight documents last described prove the death of the first Viscount Kingston, the predecease of his three eldest sons – and the succession of his fourth son, Archibald, as second Viscount.

XV     HEAD – INSTRUCTING

         That Archibald, second Viscount Kingston, died in 1714 or 1715, unmarried; that his two immediate younger brothers, Arthur and John, both predeceased him, also unmarried; and that he was in consequence succeeded by James, his youngest brother, as third Viscount, and who was seventh and youngest son of Alexander, the first Viscount.

1.       In the contract, dated 26^th March 1713, already referred to, between Archibald second Viscount, and this James, the latter is styled the Viscount’s brother.

This proves Archibald and James both alive at 26^th March 1713.

2.       Act of Parliament Geo, 1, c. 43, whereby James Viscount of Kingston was attainted on account of the Rebellion of 1715.

This proves the death of Archibald the second Viscount, and the succession of James the third Viscount, before 1715.

3.       In the Report also of the Commissioners appointed by Parliament to enquire into the situation of the forfeited estates, anno 1719, thee is inserted an abstract of the real estate of James late Viscount of Kingston, the rental of which is stated at £416:2:11.

This proves James to have been third Viscount Kingston, and hence that his two immediate elder brothers, Arthur and John, had died without male issue.

These three documents prove the deaths of Archibald, second Viscount Kingston, and his two immediate younger brothers, Arthur and John, all without issue, and also the succession of the youngest brother James as third Viscount.

XVI    HEAD – INSTRUCTING

         That this James, third Viscount Kingston, married in 1714 Lady Anne Lindsay, daughter of Colin Earl of Balcarras, and widow of Alexander Earl of Kellie; and that he was attainted for the Rebellion of 1715; and died in 1719, without issue.

1.       Post-nuptial Contract, dated 16^th April 1714, between Mr. James Seaton, brother german to the Viscount of Kingston and Anna Countess of Kellie.  By this contract the Countess is provided to a liferent of 20 chalder of victual by locally, to commence after the Viscount’s decease; and besides this, the contract contains a provision in case of the Contess’ survivance, and that there be nae bairns procreated of the marriage betwixt them existing the time of his decease; in which case the Viscont disponed to the Countess, the haill inside plenishing and movable goods and gear in his dwelling house the time of his death.  But if there shall happen to be children, one or more, existing the time of his decease, the Viscount in that case disponed to the Countess only the just and equal half of the said inside plenishing.  This shows the provisions made in either of the events, -- of there being issue of the marriage, or of the survivance of the Countess.  This contract was afterwards followed by instrument of sasine in favour of the above Anna, now Viscountess of Kingston, dated 17^th December 1719, and recorded in the particular Register at Edinburgh, 4h January 1720.  The sasine not only proceeds upon the above marriage contract, but also upon a contract of alienation betwixt William Hay of Drummelzier, and James, late Viscount of Kingston, now deceased, therein designed James Seaton, second lawful son in life of the deceased Alexander Viscount of Kingston, dated 26^th March 1713.

This proves that, at the date of the sasine, 17^th December 1719, James the third Viscount had deceased.

      Thereafter, upon 2d February, 1720, Anna, Viscountess of Kingston, obtained decree of locality in the Court of Session, against William Hay of Drummelzier, and the other parties liable by the above-mentioned post-nuptial contract.  In this decree there was obtained a decerniture for the one-half of the crop and year 1719 years, in regard the said James late Viscount of Kingston did decease before the term of Martinmase 1719.  The decreet also narrates the above provision.  In case of her (the Viscountess) survivance and failing children existing of the marriage between them, whereby she was to have right to the haill inside plenishing; and subsumes that the pursuer (the Countess) has thereby good and undoubted right to call and pursue for the said household plenishing.

This latter part proves that there were no children existing of the marriage between James third Viscount of Kingston and Anna Viscountess Kingston; and that his Lordship died prior to Martinmas 1719.

In the Gentleman’s Magazine, 1743, the Countess’s death is thus recorded:  February 6.  The Countess of Kingston, at Edinburgh, mother of the Earl of Kellie.

4.       Likewise, in the Caledonian Mercury of 7^th February 1743, there is the following entry:  Friday last, died here the Viscountess of Kingston, eldest daughter of Colin, Earl of Balcarras, and mother of the present Earl of Kellie, a person of singular piety.

As these two last notices mentioned the Viscountess’s son by her first marriage, but never allude to any issue by her marriage with Viscount Kingston, they are conclusive corroborations of the direct evidence afforded by the Decree, (No. 96) that there never was any such issue.

The documents described under this head, prove the marriage of James third Viscount Kingston, his subsequent attainder, and also his death without issue in 1719, which completes the proof of the extinction of the Kingston Branch in the male line.

XVII   HEAD – INSTRUCTING

That Christopher (2) and William, who were third and fourth sons of the third Earl of Winton’s second marriage, were both drowned off the coast of Holland in 1648, without having been married.

1.       In Viscount Kingston’s Continuation of Maitland’s History of the Seaton Family, it is stated of the above two sons, that going abroad to their travels, they were cast away at sea upon the coast of Holland, anno 1648.

2.       Sir Robert Gordon, in the History of the Earldom of Sutherland, (pp. 384-542) also corroborates it.  In intimating that Lady Ann, daughter of John Earl of Sutherland, perished in the same vessel, he states that, besides here, there had likewise perished three daughters of the Earl of Angus, nieces of the Duke of Lennox, and two sons of the Earl of Winton.

3.       Procuratory of Resignation of the lands of Garleton, dated 1^st August 1649.  This procuratory is in the form of a contract between George Earl of Winton, (third Earl) liferenter, and, John Seaton, now our eldest son procreate betwixt us and Dame Elizabeth Maxwell, Countess of Winton, now our spouse, and brother and heir-male, and of tailzie and provision, to umqubile Christopher Seaton, quhu was eldest sone procreate betwixt us and our spouse foresaic.  The procuratory is in favour of, 1^st, John, and 2d, Robert Seaton his brother, also our son; 3d, The first Viscount Kingston, then the only surviving son of the third Earl’s first marriage; and, 4^th, The third Earl’s nearest heirs-male whatsomever; and there is a provision in the deed that the lands thereby conveyed shall be in contentation to the said John Seaton, and his foresaids, of all lands, heritages, &c., falling and belonging to him, as heir or appearand heir to umquhile Christopher and William Seatons, his brothers, or either of them.

This document of itself proves that the above Christopher and William had then both predeceased without issue.  The event had taken place the preceding year, 1648.

GARLETON BRANCH

Which was the next in succession after the Kingston Branch

Having extinguished, under the 17^th and 18^th Heads, Francis, the youngest son of the first marriage of the third Earl of Winton, and also Christopher (1^st), Robert (1^st), Christopher (2d), and William, being the first four sons of the Earl’s second marriage, the next in the order of succession was the fifth son of that marriage, namely John, afterwards Sir John Seaton first of Garleton.  He and his male descendants form a separate branch, distinguished in this abstract of the evidence and also upon the table of pedigree, by the title of Garleton Branch, and their extinction will be proved under the following fifteen heads.

This Garleton Branch, however, as has already mentioned, became divided into two lines, the elder of which terminated in the male line by the death of Sir George Seaton third of Garleton in 1769.  The other line, distinguished in this abstract of evidence, and also upon the table of pedigree, by the title of the junior line, sprung from John, the second son of Sir John Seaton, the first of Garleton, and failed in the male line by the death of John Seaton in 1796.  The Garleton branch, it is understood, is now represented in the female line by the daughter of this last John Seaton, namely, Mrs. Mary Seton or Broadbent.

XIX    HEAD – INSTRUCTING

That Sir John Seaton, first of Garleton, who was fifth son of the third Earl of Winton, by his second marriage, married Christian Home, daughter of Sir John Home of Renton, by whom he had six sons, being his only male issue.

1.       George, afterwards Sir George second of Garleton.

2.       John, afterwards married Frances Nile, daughter of Sir Richard Nile of Pleny, died in Germany in 1715.

3.       Robert, afterwards Father Robert Seaton, a Roman Catholic clergyman and Jesuit, died in 1732 – no issue.

4.       Alexander, died without issue, and unmarried, shortly before 1705.

5.       Christopher, and  }

                                              both died young

2.       In Viscount Kingston’s Continuation of Maitland’s History, already referred to, the marriage and issue of Sir John are stated as above.  Viscount Kingston having been brother to Sir John, he had the best access to know the facts.

3.       Extract Patent of Baronetcy, dated 9^th December 1664, creating Joannem Seaton de Garleton a Knight-Baronet, with limitation to him and the heirs-male of his body, recorded in the Great Seal Register, lib. 63, No. 13.

4.       Bond and Assignation, dated 13^th September 1682, and recorded in the Books of Council and Session, 12^th September 1700, by Dame Isobel Seaton, Lady Semple.  This deed proceeds, For the love quilk I have and bear to Sir John Seaton of Gairlton, my brother, and Robert Seaton, third son of him; and it mentioned the deceased Christian Home, his (Sir John’s) lady.

This proves Robert the third son to have been alive in 1682.

5.       Bond, dated 19^th January 1693, and recorded in Books of Council and Session, 10^th January 1696, by Sir George Seaton, second of Garleton.  This deed proceeds, Forasmickle as the deceased Sir John Seaton, my father, did leave to Alexander Seaton, his fourth son.

This proves that Alexander, fourth  son, was alive in 1693.

6.   Disposition and Assignation, dated 10^th June 1693, by John Seaton to Sir Patrick Hume.  This deed designs John Seaton brother-german to Sir George Seaton (second) of Garleton.

7.   Contract, dated 6^th December 1694, and recorded in Books of Council and Session, 27^th September 1695, betwixt Sir George Seaton of Gairlton, and Alexander Seaton, his youngest brother-german.

This proves that Alexander was then the youngest son, and therefore that both Christopher and Charles, who were the two youngest brothers by birth, must have then predeceased.

That the said Sir John Seaton first of Garleton died in 1686, aged 47, and was succeeded by his said eldest son George, as Sir George second of Garleton.

1.       In Viscount Kingston’s continuation of Sir Richard Maitland’s History, already referred to, it is stated, that Sir John Seaton, Knight Baronet of Garletoun, died in anno 1686, of his age 47 years; and that Sir George Seton, Knight Baronet of Garletoun, his eldest son, succeeded him.  The Viscount was Sir John’s elder brother, and survived him, and had the best access to know the facts.

2.       Special Retour, dated 13^th October 1686, of Dominus Georgius Seaton, now of Garleton, as legitimus et propinquior hæres dicti quond, Domini Jodnnis Seaton, sui patris.

3.       General Retour, dated 7^th August 1686, of Sir George Seaton, as heir of Sir John, his father.

The three documents last described prove the death of Sir John Seaton first of Garleton, and the succession of his eldest son George.

XXI    HEAD – INSTRUCTING

That the said Sir George Seaton, second of Garleton, married Barbara Wauchope, daughter of Andrew Wauchope of Niddry, by whom he had four sons, being his only male issue, viz –

1.       George, born in 1685, afterwards Sir George third of Garleton, who upon the death of the attainted Earl of Winton in 1749, was acknowledged to have right to succeed him, and was commonly styled Earl of Winton, and who died at Versailles, 9^th March 1769, without issue.

2.       James, a Captain in Colonel Keith’s regiment, and resident in France, died without issue before 1769.

3.       John, a Catholic priest, and residing with the Traquair family, born 9^th November 1695, died without issue 16^th July 1757.

4.       Andrew, an officer in Ireland’s regiment, died 10^th October 1719, at the Camp of Randasso in Sicily, without issue.

1.       By the contract, dated 6^th December 1694, already referred to, between Sir George and Alexander Seaton, the first and the fourth sons of Sir John, the latter, after his own decease, whenever the same shall happen at the pleasure of God, agrees that the whole provision which he had got from his own father, namely 8,500 marks, shall pertain and belong to James Seaton, his nephew, second lawful son to Sir George the second; and failing of him, by decease, to James’s next younger brother; and failing such by decease or non-existence, to any others of Sir George’s children, male or female, equally amongst them; but secluding always the eldest son, who is to succeed to the estate of Garleton.

This proves that James was second son of Sir George the second.

2.       Disposition, dated 12^th and 13^th January, and recorded in Books of Council and Session 26^th February 1705, by Sir George Seaton second of Garleton.  This deed proceeds, For the love I have and bear towards my children after-named; and it mentions Dame Barbara Wauchope, my spouse.  The deed is in favour of, 1^st, George Seaton, my eldest lawful son; 2d, James Seaton, my second lawful son; 3d, John Seaton, my third lawful son; 4^th, Andrew Seaton, my fourth lawful son; and failing all these, the other heirs-male procreate, or to be procreated of his body.

This proves the four sons of Sir George the second.

3.       Deed of Division amongst his younger children by the said Sir George second of Garleton, dated 12^th September 1716, and recorded in Books of Council and Session 18^th August 1721.  This deed mentioned George Seaton, my eldest lawful son; James Seaton, my second son; John Seaton, my third son, and Andrew Seaton, my fourth son.

The three documents last described prove the marriage of Sir George Seaton second of Garleton, and his male issue, as proposed in the twenty-first head.

XXIII     HEAD – INSTRUCTING

That the said Sir George Seaton third of Garleton, subsequent to the death of the attainted Earl of Winton in 1749, was, in consequence of his being the next heir to the Winton honours, commonly styled Earl of Winton; and that he died 9^th March 1769, at Versailles, aged eighty-four, without leaving lawful issue.

1.       In Sir Robert Douglas’s Peerage, already referred to, published in 1764, only five years prior to the death of this sir George Seaton, after mentioning that the attainted Earl had died at Rome, as shown in the ninth head, in 1749, he states that the Earl having no issue, and the male line of Alexander first Viscount Kingston having also failed, as shown from pages 22 to 25 hereof, the representation of this noble family, (Winton), devolved upon the descendants of Sir John Seaton of Garleton.  Sir Robert Douglas then mentions, as the then existing male heir descended of Sir John, Sir George Seaton of Garleton, &c.

2.       In both the Scots Magazine, April 1769, and Annual Register, 1769, already referred to, it has been seen that in the notices announcing the death of this Sir George Seaton the third of Garleton, he was acknowledged at that time as the representative of the Winton family, and that he was a Scottish Peer.

3.       It has also been seen, that of date 1^st December 1769, a General Service was expede, magistræ Maria Seaton Arrat, uxoris Joannis Arrat de Fofarty Armigeri, whereby she was served legitima et propinquior hæres lineæ, cum beneficio inventard die, demort:  Domini Georgy Seaton de Garleton, vulgo vocat Comitis de Winton, sui fratris germani.

This service, expede nine months after the death of Sir George, the third baronet, at Versailles, of itself proves that he was styled Earl of Winton, and acknowledged as the representative of the family.  And it has been seen, that Sir Robert Douglas, the Peerage writer, was one of the jury as well as a witness, and deponed to the propinquity.  The service, also, not only extinguishes Sir George himself, but also his three younger brothers, each of whom, had they not all predeceased, would have excluded their sister in the character in which she served.

The preceding documents fully prove the death of Sir George Seaton, 3d of Garleton, without issue; but the following may be referred to in corroboration of his identity, and of his residence at Versailles, where he died.

7.       In a subsequent letter fro the same to the same, dated Binns, 28^th December 1750, it is stated that the said Sir George third of Garleton is at Paris.

8.       In a subsequent letter from the same to the same, dated Binns, 24^th January, 1753, it is stated that the said Sir George at present is living at Versailles.

The eight documents last described prove the death of Sir George Seaton third of Garleton, without leaving lawful issue, as proposed in the twenty-third Head.

________________

XXIV    HEAD – INSTRUCTING

That the three younger brothers of Sir George Seaton, third of Garleton, viz James, John and Andrew, all died without issue.

2.       In regard to James, in a translation, dated 3d October 1719, and recorded in Books of Council and Session 7^th July 1720, by him in favour of William Caddell, W.S., he is designed James Seaton, second lawful son to Sir George Seaton of Garleton, at present lieutenant in the regiment commanded by Colonel Keith; and in the three letters already referred to, (nos. 114, 115 and 116) from John, the immediate younger brother of James, it is stated that the latter was then, in 1750 and 1753, residing at Boulogne.  Between this last date and 1769, the date of the above service, James must have therefore died without issue.

3.       In regard to Andrew, the youngest brother, there is produced an attestation, dated 20^th January 1721, by his brother officers, that he carried a commission of sub-lieutenant in Irelanda’s regiment, heretofore called Wauchop’s and passed along with us into Sicily, died of a fever at the Camp of Randasso; in the said kingdom, the 10^th of October 1719.  By the Deed of Division, already referred to (no. 110), Andrew’s immediate elder brother John, had right to his succession; and accordingly there is produced an assignation by John, therein designed third lawful son to the deceased Sir George Seaton (second) of Garleton, in favour of Alexander Ramsay, dated at Alcala de Henares, in Spain, the 8^th March 1722, by which he assigns not only his youngest brother Andrew’s provision, to which he had succeeded, but also the haill byegone annualrents thereof, which, it is stated in the deed, belongs to me.  Besides, therefore, what is already proved by the service of Mrs. Arrat regarding Andrew’s death, this assignation itself proves that he had died without issue, otherwise his provision, as well as the bygone annualrents, would have gone to his children.  In addition to all this, however, there is produced an Extract Retour of the Service, afterwards expede on 30^th May 1723, of this John Seaton as legitimus et propinquior hæres provisionis dicti quond Andrew sui fratris, in terms of the above Deed of Division.\

4.       In regard to John himself, the last of the three letters already referred to, from him to his cousin in London, dated in 1753, shows his existence down to that date.  And besides these, there is another letter from him to his cousin (the last in date which has been found), dated Edinburgh, 25^th June 1757; that is, twelve years prior to the service of his sister to his eldest brother.

In the whole of these letters there are contained requests by this John as to breviaries and other books and matters, which show that he had been a Roman Catholic priest, and a private chaplain in the Traquair family; and his consequent celibacy establishes, independently of his sister’s service, that John could have had no lawful issue.

The five authorities last described prove the death, without issue, of the three younger brothers of Sir George third of Garleton.

XXV     HEAD – INSTRUCTING

            That John Seaton who was second son of Sir John Seaton, first of Garleton, married 11^th July 1695, Frances Nile, daughter of Sir Richard Nile of Pleny, by whom he had two sons:

1.       Ralph, born 27^th June 1702, who, upon Sir George Seaton’s death at Versailles, in 1769, was acknowledged as the next heir entitled to be Earl of Winton, and who died and was buried at Newcastle, upon the 31^st December 1782.

2.       John, born 22d June 1707, died and was buried at London, 27^th January 1775.

1.   A Disposition and Assignation has already been referred to by this John Seton in favour of Sir Patrick Hume and others, dated 10^th June 1693.  This deed narrates that the said John Seton having intentions to goe abroad, and being desirous to settell my affaires in caice of my decease, therefore, &c.

This was two years before the date of his marriage with Miss Nile, which took place in England.

2.   There is also produced a Discharge and Rununciation, dated 8^th Mary 1698, by the said John Seton, in favour of Sir George the second Baronet, wherein the granter is designed John Seaton, second lawful son to the deceased Sir John Seaton of Garmilton.

3.   In Viscount Kingston’s Continuation of Sir Richard Maitland’s History, already referred to, reference is made in the notes appended by the Editors to a MS History of the Family of Winton, in which it is said that the above John left his sons – 1^st John, who married, and hath a son – 2d, Ralf.  In regard to the order in which these two sons are mentioned, it will immediately be seen that Ralph was the elder, and John the younger.

5.   Reference is here made to the following document in the possession of Mrs. Mary Catherine Seton or Broadbent, now residing in London, preserved amongst other papers of her family.  That lady will be proved to be the great-granddaughter of John Seaton referred to in this head of the evidence, and who was second son of Sir John the first; and her father, who, it will be seen died in 1796, was the last of the male line of the Garleton family, and was acknowledged and addressed in his lifetime as heir to the Winton honours.  The document records the marriage of this John Seaton, and the births of his two sons Ralph and John, the latter of whom was Mrs. Broadbent’s own grandfather; and, it has never been out of the possession of the family.  It will besides be confirmed by other documentary evidence.

The document is in the following terms:  --  Mrs. Frances Nile, daughter to Sir Richard Nile of Pleny, marry’d to Mr. John Seton, second son of Sr John Seton of Garlton, and grandson to the Earl of Winton, on 11^th of July 1695.

Ralph Seaton, sone of the said John Seton, now ye 27 June 1702, in Elvet, Durham, John Seton, son of the same, born ye 22 of June 1707, in Crosgate parish, both in the city of Durham.  The terms of this document show that it was not wholly written at one time; but that Ralph’s birth was recorded of the date at which it took place, now ye 27^th June 1702, and that the subsequent birth of John, upon 22d June 1707, was in like manner recorded of this last date.  The ages of Ralph and John at their deaths, and also their acknowledged rights, as direct male descendants from Sir John Seaton first of Garleton, will be seen to confirm the accuracy of this document in every respect.  The facts which it records are also confirmed by the other documentary evidence under this Head.  The fact of John Seton having resided at Durham, the place at which the document is dated, at the time of making the respective entries of his two sons, in 1702, and 1702, is proved by.

These letters are in the possession of Mrs. Broadbent, amongst the other papers of her family, and John Seton, to whom they are addressed, was her own grandfather.  They corroborate the proof that Ralph and John were the sons of John, the second son of Sir John the first of Garleton, and consequently they were cousins german to John, the writer of the letters, who was third son of Sir George.

9.       Letter, dated 11^th January 1786, already referred to, from Sir Alexander Livingstone, Baronet, of West-Quarter House, near Falkirk, as authorized by a general meeting of the heirs of the unfortunate families in 1715, held at Edinburgh the 9^th current, for the purpose of petitioning the King and Parlement to restore to us what is in their power, as they have been so benevolent to those in 1745, and which letter is addressed to Mr. John Seaton of London, who was son of the said John born in 1707, and was written, as Sir Alexander says, in consequence of Mr. Newton having wrote me that you are male-heir to the title of Winton.

This letter is also in the possession of Mrs. Broadbent, amongst the other papers of her family.  John Seton, to whom it was addressed, was her own father.

XXVI    HEAD – INSTRUCTING

That the said John Seaton, who married Frances Nile, died I Germany about 1715, leaving his said two sons, Ralph and John.

2.       In Sir Robert Douglas’s Peerage, as quoted on page 32 and previously referred to, the above John Seaton, who died in 1715, is stated to have left two sons, Ralph and John, &c.

3.       The letters referred to, dated in 1750, 1753, and 1757, with the evidence derived from Ralph Seaton’s own death in 1782, prove that the said John Seaton had died at all events long prior to 1750, and was survived by Ralph and John his only sons.

4.       The letter from Mrs. Broadbent, already quoted from, states all the heirs-male are dead of my family.

The preceding prove the death, in 1715, of John Seaton, second son of Sir John first of Garleton, as proposed in the 26^th Head.

XXVII   HEAD – INSTRUCTING

That the said Ralph Seaton, eldest son of the marriage between John Seaton and France Nile, subsequently to the death of his cousin, Sir George Seaton third of Garleton, in 1769, was, in consequence of his being then next heir to the Winton honours, acknowledged as such by the connexions of the Winton family, and was accordingly styled Lord Seaton in the register of his burial; and that he died unmarried, and was buried 31^st December 1782, at Newcastle-upon-Tyne, aged 80.

1.       In the register of Ralph’s burial, already referred to, dated in 1782, being thirteen years subsequent to the death of Sir George Seaton third of Garleton, in 1769, Ralph is styled Lord Seaton, and representative of George Seaton, Earl of Winton, attainted in 1715.

This proved Ralph’s death, and that he was acknowledged as heir to the Winton honours.

2.       In neither of the four letters, from 1750 to 1757, already referred to, is there the slightest reference to Ralph’s being married, or having any issue, while there is such mention of Ralph himself, and the letters are of such a nature as lead to the conviction that if he had really been married and had issue, the circumstances would unavoidably have been mentioned.

3.       Letter from Sir Alexander Livingston, already referred to, dated 11^th January 1786, four years after Ralph’s death, addressed to Mr. John Seaton of London, who was Ralph’s nephew, as heir-male to the titles of Winton.

Ralph’s nephew, it will be observed, could not have been heir to the Winton titles had Ralph himself left issue.

4.       In the Table of Pedigree of John Seaton, (Ralph’s nephew), already referred to; framed in 1785, only three years after Ralph’s death, it is affirmed that he left no issue.

5.       There is further referred to, the draft of a Letter bearing date December 1784, found amongst the papers of John Seaton, who died in London in 1796, now in the possession of his daughter, Mrs. Broadbent, and which had been written by her father in reference to his uncle Ralph’s death.  This letter was addressed to Francis Farquharson, Esquire, Old Elvet, Durham, and its purpose is stated as follows: -- If my late uncle died possessed of any papers, I shall be very glad to have them, as they may be of use to me, and to me only.  If Ralph had left issue, the papers would have been applied for on their behalf.

6.       The letter from Mrs. Broadbent, already quoted from, states that her father was entitled to the Baronetage at the death of his uncle, Sir Ralph Seton, who died without issue.

XXVIII  HEAD – INSTRUCTING

That the said John Seaton, who was second son of the marriage between John Seaton and Frances Nile, married Mary, daughter of Francis Newton of Irnham, Lincolnshire, by whom he had male issue two sons:--

1.       John, born December 1735, who afterwards, upon the death of his uncle Ralph in 1782, became the next heir-male entitled to succeed, and was acknowledged as such.

2.       Robert, who died unmarried, and was buried at London on 22d April 1778.

1.       In Sir Robert Douglas’s Peerage, published in 1764, it is stated that the above John Seaton married in England, and hath two sons, John and Robert, who both reside with their father in London.

Sir Robert was contemporary with the parties, and, as has been shown, (p. 14), had access to all the family papers.

2.       The two sons are set down in the Table of Pedigree made up in 1785, already referred to (p. 34, No. 127).  The elder of the two was himself the party under whose direction that Table was made up, containing the entries as to the births, &c., of himself and his brother.

3.       In a Letter, dated 12^th August 1777, from Mr. John Newton to John Seaton’s widow, who was Mr. Newton’s sister, there is express mention made of the above two sons, as the only sons of the marriage.  And there is referred to a subsequent Letter, dated 23d December 1784, from Mr. B. Newton to the above John the younger, in which the latter is addressed as Mr. Newton’s nephew.  The letter, from its terms, shows that John the younger was then the only surviving son.

4.       Will or Testament of the said John Seaton, dated 17^th December 1774.

The preceding prove the marriage of John Seaton and Mary Newton, and the two sons of the marriage, as proposed in the 28^th Head.

XXIX    HEAD – INSTRUCTING

That the said John Seaton, who married Mary Newton, died, and was buried 27^th January 1775, and that his eldest son John Seaton the younger survived him.

1.       In the above Table of Pedigree of his eldest son, it is stated that this John Seaton died 1775 – buried at St. Pancras, Middlesex., and as that Table was made up in 1785, under the direction of his son, the entry must be accurate.  The fact is likewise proved by the three letters, dated 12^th August 1777, December 1784, and 23d December 1784, all above referred to (Nos. 130, 129 and 131).

2.       The Will or Testament of the above John Seaton, senior, dated 17^th December 1774, by which he leaves a legacy to his said brother Ralph.

3.       In the Register of Burials in the parish of St. Pancras, in the county of Middlesex, John Seaton, senior’s burial is recorded of date 27^th January 1775.

4.       The Letter from Mrs. Seaton or Broadbent, already quoted from, states that her own father, who was the eldest son of the said John Seton, senior, was entitled to the Baronetage at the death of his uncle Sir Ralph Seton.

John Seton, senior, must therefore have predeceased and been succeeded by John the younger.

XXX     HEAD – INSTRUCTING

That the said John Seaton, junior, eldest son of the marriage between John Seaton and Mary Newton, married on 16^th February 1786, Mary, daughter of John Hughes of Berryhall, Warwickshire, by whom he had issue, the said Mary Seaton, afterwards married, on 26^th January 1816, to Mr. John Broadbent of Kendal, Westmoreland, now (1840) residing in London.  There were also born of the marriage another daughter and two sons, but they died in infancy.  He himself died 3d August 1796, aged 40.

1.       Pedigree of Mrs. Broadbent’s family, commencing with George the third Earl of Winton, made up under that lady’s direction by Mr. Home of the Register House, Edinburgh, when she was in that city in 1822, and continued by herself down to June 1836 which records the marriage of her parents, the said John Seaton and Mrs. Mary Hughes, with the number, and dates of the births of their children, and that they all died in infancy with the exception of herself.

And also

      Certified Copy by Mr. Home of this Pedigree, as made up by him, and which he will depone to before the jury as a verbation copy of the original draft, which has never been out of his possession.

2.       Release, dated __________ 1821, granted by the said Mrs. Mary Seaton or Broadbent, and John Broadbent her husband, in favour of the trustees under the marriage settlement of Mrs. Broadbent’s parents, which bears: -- And whereas, the said marriage was soon afterwards duly had and solemnized between the said John Seton and Mary Hughes; and whereas, there was issue of such marriage, only Mary Seton now Mary Broadbent, party thereto:  And whereas, the said John Seton and Mary his wife, are both since deceased, leaving their said daughter them surviving.  And whereas, the said Mary Seton, who was the only issue of the said recited marriage, sometime since intermarried with the said John Broadbent, &c.

3.       In the Register of Burials in the parish of St. Pancras, in the county of Middlesex, the above John Seaton’s burial is recorded, of date 10^th August 1796, at the age of 40 years.

4.       In the same register, the burial of the said eldest infant son John, is recorded of date 28^th November 1786.  As the marriage only took place on 16^th February 1786, this eldest child could only have been some days old.  The burial is proved to have been that of the eldest infant son of the marriage, by means of the following entry in the account book of household expenses, already referred to: -- 1787, January 14, Dues at St. Pancras for my son John; and Jan. 15, To a black-trimmed bonnet.  From entries in the same account-book, it appears that the second infant son, John Joseph, died about November 1788.  He also could have been only a few days old.

The authorities last described prove the marriage of John Seaton and Mary Hughes, and the death of the former, and that Mrs. Broadbent is his only surviving issue.

XXXI    HEAD – INSTRUCTING

That Robert Seaton, second son of the marriage between John Seaton and Mary Newton, and only brother of John Seaton, who died in 1796, died unmarried, and was buried on 22^nd April 1778.

1.       In the Table of Pedigree of his elder brother John, framed in 1785, already referred to, it is stated that this Robert Seaton died a minor, unmarried.

2.       The Letter dated 23d December 1784, from Mr. B. Newton to Mr. John Seaton of London, already referred to, shows that at that date Robert must have been dead; because it bears that John his brother, to whom it was addressed, was the only surviving son.

3.       In the Register of Burials, in the parish of St. Pancras, in the county of Middlesex, the burial of this Robert is recorded of date 22d April 1778.  As the elder brother John was born only in December 1755, it may be presumed that Robert was born about 1758, and accordingly he would be under twenty-one when he died in 1778, thus corroborating the statement in the Pedigree, that he died a minor.

4.       The Letter from Mrs. Seaton or Broadbent, already quoted from, states all the heirs-male are dead of my family.

The four authorities last described prove the death of Robert Seaton without issue, as proposed in the 31^st Head.

XXXI    HEAD – INSTRUCTING

That Robert Seaton, who was third son of Sir John Seaton first of Garleton, was born 1667, entered the Society Jesuits at Toulouse, 7^th September 1688, became a Roman Catholic clergyman, and continued till his death at Deeside, Aberdeenshire, in 1732, to officiate as such and to belong to the order, and could not, therefore, have left lawful issue.

1.       Bond and Assignation, already referred to, by Dame Isobel Seaton, Lady Semple, dated 13^th September, 1632, whereby, for the singular love and favour qulk I have and beir to Sir John Seaton of Garmiltoun, my brother, and Robert Seaton third son, and Isobel Seaton, youngest daughter to the said Sir John, Lady Semple bound herself to make payment to Sir John for the use and behoof of the said Robert and Isobel Seaton, of the sum of 10,000 merks, at the first term of Whitsunday or Martinmas following her decease; but declaring, that in caice ye said Robert or Isobel Seaton shall happen to deceise before they attain to the age of twenty-one years, or be married, then and in that caice of both their decease, to dispose and divide the said sume of ten thousand merks among the rest of the children procreate betwixt him and the deceased Dame Christian Hume, his lady, or to such of ym, or any one of ym, as he shall think fit and expedient.

2.       Translation and Bond, dated 14^th October 1685, and registered in the Books of Council and Session, 12^th September 1700, by the said Sir John Seaton, whereby, on the narrative of the above recited bond by Lady Semple, he assigned and transferred to the said Robert and Isobel Seaton equally betwixt them, their heirs, executors, or assignees, the said sum of ten thousand merks, with annualrent and penalty, as contained in the bond by Lady Semple; and in caice of ye sd Robet Seaton, his deceise before he attaine to ye age of twenty-one years, or be marryed, his half is destined to his sister, Isobel.  A similar provision is made, that Isobel’s half shall vest in Robert, in case of her death before majority or marriage:  An in case of the death of both Robert and Isobel before the age of twenty-one, or being married, the whole ten thousand merks are destined to John Seaton, my Isir John’s) second laull son, his alres, exers, or assigns, By this deed, too, because ye foresaid soume of ten thousand merks were not payable to Robert and Isobel until the first term after Lady Semple’s death, so ye they have not a competence during sd lady’s lifetime.  Sir John bound himself to pay and deliver to ye said Robert Seaton, his aires, exers, or assigneys, ane annuity of three hundred merks money foresaid yearly – and a similar annuity to Isobel, for ye aliment and maintenance during ye lifetime of ye sd Lady Semple, and for a year after her deceise yet they come to get payment, &c., of the sum in Lady Semple’s bond.

These two deeds show, inter alia, that in 1682 and also in 1685, Robert was under age and unmarried.

3.       In Viscount Kingston’s Continuation to 1687 of Sir Richard Maitland’s History, already refereed to, his Lordship records Robert as the third son; but as this was only two years subsequent to 1683, when Robert has been proved to have been under age, and unmarried, the Viscount says nothing farther regarding either him or his immediate elder brother John, who was then also a young man.  It is, however, stated in the notes to the Maitland and Kingston Histories, from MS History of the Family of Winton, in reference to Sir John Seton of Gairmilton’s third son, as follows:  ‘S. Robert, who was bred to the church, that is, the Roman Catholic Church, the Garleton family being of that religion.

4.       Assignation, dated 16^th February, and recorded in the Books of Session, 28^th May, 1705, by Robert Seton, third lawful son to the deceist Sir John Seton of Gairletoun, Knight and Baronet, in favour of Charles Earl of Traquair, whereby he assigned to the Earl the annuity of 500 marks granted to him by his father by the Translation and Bond, No. 137, and that for all years bygone and to come.  This assignation bears to have been executed by Robert Seaton, at Aberdeen, before these witnesses, William Gordon of Kirkhill, merchant in Aberdeen, and George Duncan, merchant in the said burgh, the date and witnesses names being filled up by me, the said Robert Seton.  This proves that Robert Seaton was in Aberdeenshire in 1705.

The following Lists of Papists prepared in obedience to a proclamation of the Privy Council of Scotland, and the originals of which are now in the possession of the Rev. John Lee, D.D., principal clerk of the General Assembly, prove that this Robert Seaton of the Garleton family was a Roman Catholic priest, resident in the parish of Glengarden for seven years preceding 1704, and down to 1705.

5.       MSS, titled at the beginning Unruly Papists in Marr, 29 April 1703, and on the back, information anent Papists in Marr, April, 1703, and which contains the following: -- Lews Farquharson of Auchindrein, not only keeps a priest, but has also frequent conventions and masses at his house, whereof many instances and pregnant probation might be given; but we judge a few may serve.  First, Mr. Robert Seaton, stayed at his house throughout the whole month of December last, going about all the ridiculous and superstitious rites usual in the Romish Church in time of Yule, &c. Sdly, Mr. Seaton did at Auchindrein solemnize the marriages of John Forbes in Ennerchanlig, Protestant, with a Popish woman, &c.  Mr. Seaton did also baptize a child, &c.  Per certified copy by Mr. Alexander Dempster, advocate, made from and compared with the original MSS.

6.       MSS List of apostates, Popish priest, Papists, and their children, with their circumstances, and their nearest Protestant relations, within the united aprishes of Glenmuick, Tullich, and Glengarden, lying within the Presbytery of Kincardine N’Neil, and sheriffdom of Aberdeen, presented to the Presbytery of Kincardine foresaid, upon ye 10 of May 1704, by Mr. James Robertson, minister of ye said three united kirks, and subscribed by him; which contains the following --  In the parish of Glengarden, Calam Grierson alias McGregor of Baladar, Papist, frequently receipts Popish priests, such as Mr. Robert Seaton, brother to _______ Seaton of Garleton, who has yese seven years been parish priest there, &c.  Per certified extract by Mr. Dempster, made from and compared with the original list in the possession of Dr. Lee.

7.       MSS List of Papists, priests, resetters, and apostates in Popery in the united parishes of Braemar and Crathie, presented to the Presbytery of Kincardine O’Neil the 10 day of May 1704, by Mr. Adam Ferguson, minister in the said parishes; and which is titled on the back.  List of Papists in Braemar, 1704, and contains the following – Kenneth McKenzie of Balmore, who, on Sunday the 14^th of December last, saw Mr. Robert Seaton, priest, with Auchindrein’s family and some others, go to mass, &c, and James Coutes in Invercauld, who saw Mr. Robert Seaton marrie people at Auchindrein’s house.  Per certified extract by Mr. Dempster, made from and compared with the original List in the possession of Dr. Lee

The following Catalogue of the Roman Catholic clergymen of the Jesuit Society in Scotland, the original of which is in the possession of the Right Reverend James Kyle, D.D., Bishop of Germanicia, and Vicar-Apostolic of the northern district of Scotland, proves that Robert Seaton entered the Society of Jesuits, and is additional proof that he was a Roman Catholic clergyman, and appointed to the Scotch mission, where he continued to officiate.

8.       MSS catalogues patrum Scotorum Societatis Jesu partim in Missions Scotiæ, partim in aliis provinciis degentium, hoc anno 1709, which contains the following entry – In Missione Scotiæ, Pater Robertus Seatonus, Scotus, natus est anno 1667, Ingressus est Societatem Tolose, 7 September 1688; Sinduit Philosophie annis 3; Theologie annis 4; Docuit Hmaniura annis 2; vires mediocres, professus trium votorum, Jam ad tredecim circitor annos est in Missione.  Per certified extract by Mr. Dempster from the original Catalogue in the possession of Bishop Kyle.

This Catalogue is proved, from comparing the handwriting with other documents, to have been revised and altered by Father James Forbes, who was also a Scotch Roman Catholic clergyman and Jesuit, and was superior of the Scotch Mission for fifteen years, and is recorded in the Catalogue of the Scotch Jesuit Clergymen for 1712.

9.       History by the Reverend Peter Rae, of the Rebellion raised against King George by the friends of the Popish Pretender, 1715.  The preface bears date.  Dumfries, April 12, 1718.  And in the work there is the following statement at page 39:  It appears from the particular informations taken up and brought into the Commission of the General Assembly during this Session of Parliament (1714), by the several Presbyteries of Scotland, that in some shires in the North and Highlands there were then about forty Popish priests, Jesuits, and others in Popish orders, who were all well known, appeared openly, and were so bold as to take up their residence in these places, and publicly go about all the parts of their function; particularly, &c.  He then records their names including Mr. Alexander Nicolson, alias Bishop Bruce, in the province of Aberdeen.  And after other names there, then follows Mr. Robert Seaton, brother to Garleton, there, --  this last word referring, as in the other instances, to his residence in the province of Aberdeen.

This history by Rae proves that Robert Seaton of the Garleton family continued to perform all the functions of a Popish priest in the province of Aberdeen down to the year 1714.  The authority next to be stated proves that he died in Aberdeenshire officiating in the same capacity.

10   MS Volume containing An annual Account of the number and names of the Clergy Missioners in Scotland, since its erection into a body under a prefect, and afterwards under bishops, from the year 1653, and terminating in 1741; and which contains the following entries pages 103 and 106, 1730 – F.F. Hudson, Maxwell – Ed. Maxwell, Galloway, -- F. Innes, alias Robinson, Aberdeen, -- F.F. Strachan, -- Innes, -- Seton, Decside.  1732 – Low country – Robert Seton died at Decside, and I have heard a Catholic gentlewoman give a most fine character of this gentlemen, particularly with regard to his indefatigable labour and great charity.  Per certified extract by Mr. Dempster, made from and compared with the MSS in the possession of Dr. Kyle, Bishop of the northern district of Scotland.

This proves that Father Robert Seaton, the third son of Sir John Seaton first of Gerleton, continued to reside in Aberdeenshire, and died there in 1732, and officiating Roman Catholic clergyman; and his consequent celibacy establishes that he could have left no lawful issue.

Accordingly

11   The fact that Robert died without leaving issue is confirmed by the Letters previously referred to from John Seaton, third son of Sir George second of Garleton, who was eldest brother of Robert, addressed to his cousin John Seaton, who was son of the second brother, and which, from their nature and objects, and the terms in which the remaining members of the Garleton family are spoken of, would naturally have mentioned the issue of Robert, if there had been any, as the parties would all have been full cousins.

12   The fact that Robert died without leaving lawful issue, is further confirmed by Sir Robert Douglas, in is Peerage of 1764, who states that it was peculiarly his object to record all those who, at the time he wrote, wee entitled to succeed to the Winton honours.  If Robert had left any issue, their situation in this respect must have presented them to peculiar notice for, besides Sir George Seaton – then at the advanced age of seventy-nine, and who died in 1769, and to whom Mrs. Arrat his sister was served heir – there were only two aged men and two infant boys then existing, who would have been entitled to succeed to the honours of Winton preferably to any male descendant of Robert.  The former of these wee the two sons of John the second son of Sir John the first of Garleton, viz. 1^st Ralph Seaton, who, in 1764, when Sir Robert wrote, was aged 62; and 2d John Seaton, his brother, then, in 1764, aged 59; and the latter were John Seaton’s two infant sons, John and Robert, the elder of whom was only of the age of nine in 1764.  Any issue of Robert, therefore, must have been known to Sir Robert, as they would have been living at the same time with himself; and besides the enquires which be necessarily made preparatory to the publication of his work, Sir Robert had the next access to know that there were non, from being the personal friend of, and intimate with the family, as is established by his being called on to act both as the principal witness, and as one of the inquest in the service of Mrs. Mary Seaton or Arrat, as heir to he brother Sir George, to whom Robert himself stood in the relation of uncle, and nay issue that he might have had would of course have been the full cousins of Sir George and Mrs. Arrat.  Sir Robert, upon that occasion, not only deponed to the propinquity of Mrs. Arrat and Sir George, and that the genealogy is true and authentic, but Sir Robert gives us his causo scientiæ that he had in his hand the whole papers of the family of Winton when he wrote his book of the Peerage of Scotland, and examined these; which book he produced to the jury.  Accordingly, Sir Robert does not in his work record any issue of Robert, and as Robert himself had died thirty-two years before he wrote, he omits Robert’s own name in the same way that he does others of the family who died previously to his publication, without leaving issue.
 

That Alexander, who was fourth son of Sir John Seaton first of Garleton, died shortly before 1705, unmarried.

3.       In the Edinburgh Town-Council Records, in the Matriculation Record of Burgesses of the City, there is an entry of date 28^th April 1688 as follows:  Alexander Seaton, brother-german to Sir George Seaton of Garleton, enters prentice to John Hay, merchant, for five years.

4.       By the Contract, 6^th December 1694, above referred to, Alexander Seaton assigned to James Seaton and his other nephews, sons of Sir George the second, his whole patrimony, after his own decease; and in the Disposition, dated 12^th and 13^th January 1705, reference is made to this contract, and also in the Deed of Division, dated 12^th September 1716; but in both these latter Alexander is mentioned as then deceased.

5.       By translation, in favour of James Wauchope, dated 14^th March 1713, and recorded in the Books of Council and Session 18^th August 1721, the above James Seaton, who was second son to Sir George the second of Garleton, assigns a bond granted by the said Sir George Seaton, my father, to the said deceased Alexander Seaton, his youngest brother, my uncle.

6.       The correspondence between his nephews, the above John Seaton, Catholic priest, (son of Sir George second), and John Seaton of London, (son of John, who was Sir George the second’s brother), already referred to, completely exclude the conjecture that Alexander left issue; for if so, they would naturally have been mentioned in this correspondence, which had express reference to the remaining member of their family.

7.       In Sir Robert Douglas’s Peerage of 1764, it is expressly stated, that this Alexander died without issue.

Before proceeding to detail the evidence of the extinction of the fifth and sixth younger sons of Sir John Seaton first of Garleton, it is thought proper to bring under notice some particulars as to a George Seton, who supposed himself to be descended from Alexander Seaton – the fourth son of Sir John, who has thus been proved to have died without issue – and who not only made some enquiries for the titles to Garleton, to establish this point, but is entered in the Edinburgh Almanacks as claiming to represent the Winton Family.

In the List of Forfeited Peerages, at page 137 of the Edinburgh Almanack for 1856, the Winton peerage is noticed as follows:  ‘4 Seton.  Wintoun – A. (Attainted) 1715.  Said to be represented by the Earl of Eglinton.  The representation also claimed by George Seton, Esquire, as a descendant of Sir John Seton of Garleton.  The same entry occurs in the Edinburgh Almanacks for several years prior to 1836, and is still continued; and in Oliver and Boyd’s new Edinburgh Almanack for 1837, which is an entirely new and separate publication fro the other, at page 291, the entry of the Winton peerage is as follows:  Winton, Earl of (Seton).  Before 1449, Baron Seton – 1060, Earl of Winton and Baron Tranent: attainted in 1716, in he person of George fifth Earl.  He representation is claimed by the Earl of Eglinton, and also by George Seton, Esq.  There seems no doubt that the latter entry refers to the same George Seton as was described in the prior almanacks as a descendant of Sir John Seton of Garleton, although the authors of the new work, first published in 1837, omitted the latter words.  The entry in Messrs Oliver and Boyd’s alamanacks for the two subsequent years 1838 and 1839 is the same as what has just been quoted from that of 1837.  This Mr. George Seton, however, died soon after the publication of the Almanack for 1837, as appears from the following notice amongst the list of deaths in the North British Advertiser of 21^st January 1837:  At Castlemilk Place, Glasgow, on the 15^th instant, George Seton, Esq. In the 80^th year of his age, great-great-grandson of Sir John Seton, Bart. Of Garleton and lineal descendant of the family of the attainted Earl of Winton.  In 1824, this Mr. George Seton addressed a letter to the late George Russell, the agent for the Earl of Wemyss and March, who is now the proprietor of the lands of Garleton, in the following terms:  Glasgow, 2d November 1824 – from the earliest period of my life I have always been led to believe, from family tradition, that I was descended from the late Sir John Seton of Garleton, by his son Alexander.  The public records which have been searched fully prove that an Alexander Seton, my great-grandfather, about the 1688, got possession of the farm of West Garleton, and that he and his son William, (my grandfather), possessed that farm from that period till about the 1729.  This is confirmed by undoubted evidence; but, by the total neglect of having their baptisms registered in the parish records, I have not found out proper evidence to confirm my tradition, that this Alexander Seton was a son of Sir John’s.  May I take the liberty of requesting of you to take the trouble of looking over the papers of the Garleton estate, and see if you can find any thing in them that either confirms or disproves my traditionary accounts of the family connexion.  Mr. Seton was at once furnished with the requisite extracts from the list and description of the title-deeds.

Mr. Seton again, in 1829, addressed the following letter to Messrs Russell, Anderson, and Tod, the agents for Lord Wemyss; Castlemilk Place, Glasgow, 20^th October 1829 – I have again taken the liberty of troubling you for a little further information on the subject of my descent from Sir John Seton, late of Garleton.  Will you be so kind as look into the Articles of Sale, or the Disposition granted to Sir Francis Kinloch of these lands, and inform me if there is any mention of Alexander Seton, then tenant of these lands in West Garleton, and how he is designed.  Perhaps you may have the old tack among these papers; if so, it may be more explicit than even the Articles of Sale or the Disposition.  In reference to this suggestion, it was signified that great doubts were entertained whether the tacks that may have been granted at the remote period referred to were now in existence.

The two letters which have been quoted show that Mr. George Seton believed himself to be descended from Alexander Seton, who was a tenant in West Garleton in 1688, and who, along with his son William, possessed that farm from that period till about 1729.  It might be sufficient, in order to establish that this Alexander the tenant could not be the same with Alexander who was the fourth son of Sir John Seton, to refer to the evidence which has been adduced regarding the latter.  It has been proved, that, upon 28^th April 1688, Alexander, the son of Sir John, was apprenticed to John Hay, merchant, for five years.  He would at that time probably be about the age of sixteen, which would make the period of his birth about 1672.  Then, of date 6^th December 1694, when his apprenticeship would be just terminated, he entered into the contract which has been referred to, by which he conveyed to Sir George Seton, his eldest brother, during his life, the whole annual rents of the provision which had been left to him by his father Sir John; and upon his death the capital sum was settled upon James, the second son of Sir George.  It was thereby agreed, that in consequence of this settlement, Sir George should maintain Alexander at his house of Garleton during his life.  It has been show, from the subsequent disposition, dated 12^th and 13^th January 1705, that Alexander had then died, and James, his nephew, had in consequence succeeded to the provision, under the contract of 1694; and it has been proved that Alexander had died without issue, and unmarried, by the fact of his having thus settled his whole means upon his nephew, as his heir, as well as from the other evidence adduced.

But the following complete evidence has been obtained, that the Alexander Seton who was tenant of West Garleton, was a totally different person from Alexander, who was fourth son of Sir John, and that he died in 1736, about 30 years subsequent to the death of the latter.  Thus, in the Sheriff Court books of Haddington, these notices occur:  On 2d February 1702, Alexander Seaton in West Garleton, pursues James Simpson; 1^st November 1706, Alexander Seaton in West Garleton, pursues Patrick Carfrae; 12^th January 1713, Alexander Seaton in West Garleton, pursues William Finlayson in Hermiston.  And, on 9^th November 1714, Alexander Seaton in West Garleton, again appears as a pursuer.  Then, of date 22d March 1736, there is upon record, in the Commissary Court books of Edinburgh, the confirmed Testament of Alexander Seaton, tenant in West Garleton.  These entries completely agree with the statement in Mr. George Seton’s letter of 1824, that Alexander, the tenant, along with his son William, had possessed the farm of West Garleton from 1688 down to about 1729.  But they, on the other hand, show that Mr. George Seton of Castlemilk Place, Glasgow, now deceased, who is entered in the Edinburgh Almanacks as claiming to represent the Winton family, was descended from a person of the name of Alexander Seton, who was in no way related to the family, but was merely a tenant on the Garleton estate.

            That Christopher and Charles, who were fifth and sixth sons of Sir John Seaton first of Garleton, died young, and unmarried.

1.       In the Contract, dated 6^th December 1694, already referred to, Alexander, the immediate elder brother of Christopher and Charles, is called the youngest brother of Sir George the second of Garleton, which proves that Christopher and Charles must have then predeceased.

2.       Also, in the Translation already referred to, dated 14^th March 1713, Alexander is called the youngest brother to Sir George second of Garleton.  And in none of the titles of the Garleton family is there the slightest allusion to these two sons, although it has been seen that there are many deeds in which the four older sons of Sir John are named.  It is evident, therefore, that neither Christopher nor Charles had attained to the age of manhood.

3.       In fact, the only evidence of their existence proves, at the same time, that they had died without issue, namely Viscount Kingston’s Continuation of Maitland’s History, so often referred to.  His words are, the two last (Christopher and Charles) died young.

There can be no doubt that the fact is as stated by the Viscount, for he was their uncle and survived them.

These three documents prove the death of Christopher and Charles Seaton, who were the two youngest sons of Sir John Seaton, without issue.

XXXV   HEAD – INSTRUCTING

That Sir Robert Seaton of Windygoul, sixth and youngest son of George third Earl of Winton, by his second marriage, died in 1671, unmarried.

1.       The Certified Extract from the Parish Register of Baptisms at Tranent, already referred to, contains the following entry:  "10^th November 1641, George Earl of Winton , and sone baptized."  The name is thus omitted in the register, but as the names of all the Earl’s other sons are specified in the entries applicable to them, this entry can apply only to Robert.

2.       In the Charter by Sir Alexander Touris in favour of George third Earl of Winton dated June 1643, already referred to, it is seen fro the substitutions that Robert was the youngest son of the second marriage.

3.       In Viscount Kingston’s Continuation of Sir Richard Maitland’s History, already referred to, it is stated that Robert was the youngest son of the third Earl’s second marriage, that he was a Knight Baronet of Scotland, ane hopefull young gentleman, and a good scholar, dyed young in anno 1671’ buried in the Colledge Kirk of Seton.  As the Viscount was Robert’s brother (i.e. by the first marriage) his authority for what he writs regarding him must be admitted unquestionable.

4.       The Patent or Diploma, dated 24^th January 1671, creating Sir Robert a Knight Baronet, is recorded in the Great Seal Register, Book LXII, No. 286, and is in favour Domini Roberti Seaton de Windiegoul, filij legitimi quondam Comitis de Winton, with limitation to him and the heirs-male of his body.

5.       In the Deed of Entail, dated 22d September 1669, Robert is called nominatim to the succession.

6.       Sir Robert is proved to have died without issue, by the Retour, dated 20^th February 1672, of the above Sir John Seaton, first of Garleton, his immediate elder brother-german, whereby he is served Hæres Domini Roberti Seaton, filii Georgii Comitis de Winton fratris.

7.       Testament Dative, dated 7^th April 1673, in favour of Ann Countess of Traquair, Isobel Lady Semple, and Lady Mary Seaton, sisters-german of the deceased Sir Robert Seaton of Windygoul, and executrices dative quo nearest of kin.  It bears that Sir Robert had died in November 1671.

These two last documents prove that Sir Robert had died without issue.

Under the first and second branches of the evidence contained in the preceding 35 heads, the history of all the male descendants of Robert first Earl of Winton has been traced; and every male descendant has been extinguished, as well in the direct line as in the collateral, and whether immediate or remote, who would have been entitled to succeed to the honours preferably to the descendants of Sir Alexander Seaton of Foulstruther, afterwards Alexander Montgomerie sixth Earl of Eglin ton, who was third son of Robert first Earl of Winton, by his Countess Lady Margaret Montgomerie.  The only remaining point, therefore, which it is incumbent upon Lord Eglin ton to establish is, that he is nearest heir-male of the body of this Sir Alexander Seaton or Montgomerie, sixth Earl of Eglin ton.  This forms the third and concluding branch of the evidence; and it may be mentioned that the Eglin ton line, after Sir Alexander, became divided into two branches, which are distinguished in the present Abstract, and on the Table of Pedigree, by the titles of male issue of Hugh the seventh Earl of Eglin ton, the eldest son of Sir Alexander Seaton sixth Earl, and direct existing Eglin ton line, descending from Colonel James Montgomerie of Coilsfield, who was fourth son of the said Sir Alexander.  The elder line, descending from Earl Hugh, failed in the male line by the death of Archibald the eleventh Earl, in 1796, and it is now represented by Lady Mary Montgomerie, only surviving daughter of that Earl.  Lord Eglin ton, the claimant, is the heir male of the body of Colonel James Montgomerie, from whom this existing Eglin ton line sprung; and in consequence of the failure of male heirs in the elder line, and of the second and third sons of Sir Alexander Seaton or Montgomerie sixth Earl of Eglin ton having left no issue, Lord Eglin ton is also the heir male of the body of Sir Alexander.  In this third branch of the evidence, it is only necessary to establish that Lord Eglin ton possesses this last character, as the proof of his doing so must necessarily extinguish all the intermediate male heirs between Sir Alexander Seaton or Montgomerie, the sixth Earl, and himself.  For this purpose it might be sufficient to refer to the fact, that Lord Eglin ton now holds the Eglin ton honours in virtue of the destination in the regulating patent, dated 24^th March 1615, to Sir Alexander and the heirs-male of his body.  But the proof for establishing the point that the Earl is the heir-male of the body of Sir Alexander, shall be stated as minutely and accurately, as has been done with regard to any previous particulars in the evidence.

III BRANCH

XXXVI  HEAD – INSTRUCTING

That the said Sir Alexander Seaton of Foulstruther, afterwards Alexander Montgomerie sixth Earl of Eglinton, was third son of Robert first Earl of Winton, by his Countess Lady Margaret Montgomerie, eldest daughter of Hugh third Earl of Eglin ton, and was born in 1588, that he succeeded to the estates and honours of Earl of Eglin ton upon the death of his cousin-german Hugh fifth Earl of Eglin ton in 1612, under entails of the estates by that Earl, and subsequent Royal grants of the honours in 1615; that he married twice, 1^st on 22d June 1612, Ann, eldest daughter of Alexander first Earl of Linlithgow, by whom he had five sons; and 2d Margaret eldest daughter of Walter first Lord Scott, who was relict of James sixth Lord Rose; but by whom he Earl had no issue:  And that the five sons of the Earl were—

1.       Hugh, afterwards seventh Earl of Eglin ton; born 30^th March 1613.

2.       Henry, afterwards Sir Henry Montgomerie of Giffen; born 26^th June 1614, and died without issue.

3.       Alexander, afterwards a Colonel in the army; born 8^th November 1615, and died without issue.

4.       James, afterwards Colonel James Montgomerie the first of Coilsfield; born 24^th October 1620.

As already stated, Lord Eglin ton, the claimant, is directly descended from this fourth son, and in virtue of which descent, and of the failure of the male descendants of the eldest son, and of the second and third sons, who both died without issue, (the proof of which is stated from page 46 to page 55 hereof), the Earl is thus heir-male of the body of the said Sir Alexander Seaton or Montgomerie sixth Earl of Eglin ton; and it is in that capacity that he holds the Eglin ton honours, which, as already stated, stand destined to the heirs-male of the body of Sir Alexander.

1.       In Viscount Kingston’s Continuation of Maitland’s History of the Seaton Family, already referred to, it is stated that Robert first Earl of Winton married Lady Margaret Montgomerie, eldest daughter to the Earl of Eglintone.  He had by her five sons, Robert, George, Alexander, Thomas and John, &c; and that Sir Alexander Seaton third sone to Robert first Earle of Wintone, shortly after his father’s death, was Earle of Eglintone.

2.       By the Charter of Robert first Earl of Winton, dated 20^th June 1602, already referred to, it is proved too that Sir Alexander Seaton was the third son of that Earl.

3.       In the Instrument of Resignation in favour of George Master of Winton, dated 28^th May 1607, already referred to, the nomination substitutions are in favour of the sons of the first Earl of Winton and Lady Margaret Montgomerie, successively in their order and the third is in favour of Alexander.

These three authorities prove that Sir Alexander Seaton or Montgomerie sixth Earl of Eglin ton, was the third son of Robert first Earl of Winton and Lady Margaret Montgomerie.

4.       Contract, dated 27^th July 1611, entered into between Hugh fifth Earl of Eglin ton, Lady Margaret Montgomerie Countess of Winton, and Sir Alexander Seaton of Foulstruther, and his two brothers, Thomas and John, whereby it was agreed that, upon his death of Hugh fifth Earl of Eglin ton, Sir Alexander, who was his cousin-german, should succeed him as sixth Earl of Eglin ton.

5.       Obligation, following on this Contract, dated 5^th August 1611, which was granted by the said Hugh Earl of Eglin ton, in favour of Sir Alexander Seaton of Foulstruther, and to the heirs-male lawfully to be gotten of his body, qubilks failling, Thomas, and next John, Sir Alexander’s two younger brothers, and containing a last substitution to the fifth Earl’s own nearest heirs-male whomsoever.

6.       Procuratory of Resignation, dated 13^th September 1611, already referred to, granted by Hugh fifth Earl in favour of the said Sir Alexander, is implemented of the preceding deeds.

7.       Charter of Resignation following thereon, by King James VI, dated 28^th November 1611, Hugoni Comiti de Eglin ton, et hæredibus masculis de corpore suo legitime procreandis, quibus deficien.  Domino Alexandre Seyton de Foulstruther, militi, et hæredibus masculis de corpore suo legitime procreandis, quibus deficien to Thomas and then John and last of all to Earl Hugh’s nearest heirs-male as above.

Nos. 4, 5, 6 and 7 show the manner in which Sir Alexander Seaton came to succeed as sixth Earl of Eglin ton.

8.       It has been seen, under the first Head, that, of date 3d February 1615, Sir Alexander granted a procuratory of resignation whereby the titles and honours of Earl of Eglin ton were resigned in the hands of the King, which was followed by the Crown charter, already referred to, dated 24^th March 1615, whereby the honours were granted to Sir Alexander, therein designed Alexander Montgomerie Earl of Eglin ton, with the same substitutions as in the Crown charter of the estates just referred to, dated 28^th November 1611.  By this charter of 24^th March 1615, the honours were granted to Sir Alexander and the heirs-male of his body, and it still continues to be the regulating patent of the Eglin ton honours.

9.       Contract, dated 31^st July 1612, I which there are named Alexander Earl of Linlithgow, Dames Anna Livingston, his eldest dochter, and Sir Alexander Seyton of Foulstruther, Knight, her spose; and there is narrated ane contract-matrimonial, of the date at Eginburghtghe 6^th day of June the year of God 1612, betwixt Sir Alexander and the said Lady Anna Livingston.

10.   In the MS Record by George third Earl of Winton, already referred to, amongst the marriages, &c., recorded by his Lordship, who was the immediate elder brother of Sir Alexander Seaton, there is the following: - The 22d of June 1612, Alexander Earl of Eglintone, was mareit upon Dame Anna Livingstoun, eldest dochter to Alexander Earl of Linlithgow.

Nos. 9 and 10 prove the first marriage of the sixth Earl to have been with Lady Anne Livingston.

11.   Amongst the same entries there is the following:  Upon the penult of Marche 1613, my Lady Eglintoun was delyuerit of hir eldest sone, callit Hew, at 6 hours at euin.

12.   In the Certified Extract from the Parish Register of Baptisms at Tranent, already referred to, this son’s baptism is recorded of date 18^th April 1613.

13.   Amongst the said entries by the third Earl, there is the following:  Upon the 26^th Junij 1614, my Lady Eglintoun was delyuerit of hir second sonne callit Harie.  The Queens Matle being his godmother, he was baptized upon the 21^st of August.

14.   In the said Certified Extract from the Parish Register of Baptisms at Tranent, this son’s baptism is recorded of date 19^th August 1614, and he is there named Hendrie.

15.   Amongst the said entries by the third Earl there is the following:  The 8 of Novuember, being Wednisday, ye zeir of God 1615, my Ladye Eglintoun was delyuerit of hir 3 sone at tua houris in ye morning.  His name is Alexander.

16.   In the said Certified Extract from the Parish Register of Baptisms at Tranent, this son’s baptism is recorded of 5^th November 1615.  It is probable that 5^th should be 15^th.

17.   Amongst the said entries by the third Earl there is the following:  Upon the 24^th of October 1620, my Lady Eglintoun was delyuerit of hir 4 sone, Callit James.

Note:  This is the son of the sixth Earl from whom the present Lord Eglin ton is directly descended.

18.   Likewise, in Viscount Kingston’s Continuation of Maitland’s History of the Seaton Family, already referred to, after the four sons are enumerated in the order of birth as above, Robert is set down as the fifth and youngest.  It is there mentioned that he was General Major of his Majesty’s horse in anno 1651.  He left his heirs ane good estate in money.

See Note below, under No. 22 as to Robert.  The last eight numbers prove the five sons of the sixth Earl of Eglin ton.

19.   In the same work, it is stated that this (sixth) Earl of Eglintone married, to his second wife, the Lady Ross, dowager.  There is no mentioned by Lord Kingston of any issue by this second marriage.

20.   Instrument of Resignation, dated 6^th February 1669, proceeding upon a procuratory of resignation by Hugh, the said eldest son, then seventh Earl of Eglin ton, dated 29^th January 1669, which procuratory was in favour of (1^st) Alexander, Lord Montgomerie, afterwards the 8^th Earl, who was the said Hugh seventh Earl’s eldest son; (2d) Francis, his second son, (3d) Any other sons to be procreated of Hugh seventh Earl; (4^th) Colonel James Montgomerie of Coilsfield, his (Earl Hugh’s) brother, and the heirs-male of his body; and (5^th) Major General Robert Montgomerie, also his brother.  This was followed by:

21.   Crown Charter of Resignation in favour of the said Alexander Lord Montgomerie, afterwards the eight Earl, and the several heirs enumerated in No. 20 dated 29^th February 1669; and subsequently by;

22.   Instrument of Sasine in favour of the said Alexander Lord Montgomerie, afterwards eighth Earl dated 12^th June, and recorded in the General Register of Sasines at Edinburgh, 1^st July 1669.

These prove James and obet, who wee the fourth and fifth sons of the sixth Earl, to have been alive in 1669; and also that Henry and Alexander, who were the second and third sons, must have then predeceased without issue; otherwise they would have been named in the procuratory, along with the two younger sons.

Note:  By Nos. 18, 20, 21 and 22, the existence of Robert the fifth son has been proved, as well as that he left aires.  As has been stated, however, it is unnecessary here to trace any thing farther regarding him or them, Lord Eglin ton being descended from Robert’s immediate elder brother.

The twenty-two documents last described prove that Sir Alexander Seaton of Foulstruther was the third son of Robert first Earl of Winton, by his Countess Lady Margaret Montgomerie; that, in 1612, he succeeded to the estates and honours of Eglin ton, as Alexander Montgomerie, sixth Earl of Eglin ton, and that he married twice, and had five sons by his first lady.

XXXVIII   HEAD – INSTRUCTING

               That the said Sir Alexander Seaton, sixth Earl of Eglin ton, died on 7^th January 1661, aged 73, and was succeeded by his eldest son, Hugh as seventh Earl of Eglin ton.

3.       Also, Precept furth of the Chancery, dated 13^th May 1661, in favour of the said Hugh seventh Earl, for infefting him in the heritable office of Sheriff Principal of the Sheriffdom of Renfrew, proceeding upon his special retour as heir to his said father.

4.       Instrument of Sasine following thereon, dated 27^th May, and recorded in General Register of Sasines at Edinburgh 29^th June 1661.

The four authorities last described prove the death of the sixth and succession of his eldest son as seventh Earl of Eglin ton.

XXXVIII   HEAD – INSTRUCTING

               That the said Hugh seventh Earl of Eglin ton married twice:  1^st, Anne, eldest daughter of James second Marquis of Hamilton; but by her he had only a daughter; 2d, Mary, second daughter of John sixth Earl of Rothes, by whom he had two sons, being his only male issue, namely:

1.       Alexander, afterwards eighth Earl of Eglin ton.

2.       Honourable Francis Montgomerie of Giffen.

1.       In Viscount Kingston’s Continuation of Maitland’s History of the Seaton Family, already referred to, it is stated that this seventh Earl married to his first wife the Lady Anna Hamiltoun, eldest sister to the then Marquis of Hamiltoun, afterwards Duke of Hamiltoun, by whom he had only one daughter, &c.  And to his second wife he married Lady Mary Leslie, eldest daughter of Rothes, by whom he had two sones, Alexander and Francis, &c.

2.       Procuratory of Resignation, dated 20^th December 1664, granted by the said Hugh seventh Earl, in favour of Alexander Lord Montgomerie our son.

3.       In the Instrument of Resignation, dated 6^th February 1669, and Charter and Sasine following thereon, already referred to, it has been seen that Alexander and Francis are the only two sons of Hugh seventh Earl, who were named; and that, after them, there were called to the succession the seventh Earl’s only two surviving brothers.

4.   Crown Charter of Resignation of the Earldom of , dated 9^th February, 1677, proceeding upon a Procurator of Resignation by Alexander, eighth Earl of Eglinton, dated 7^th and 16^th December 1676, which recites a Deed by which it was declared, that after the death of Hugh, the seventh Earl, and Lady Mary Leslie, his spouse, Alexander, now Earl of Eglinton, their son, shall succeed, &c.  The destination in this charter is in favour of (1^st) Alexander, Lord Montgomerie, afterwards the ninth Earl, and the heirs male of his body, &c, &c.; (2d) Mr. Francis Montgomerie, the eighth Earl’s brother german, and the heirs male of his body; (3d), The heirs male of the body of Colonel James Montgomerie of Coilsfield, &c. This charter was followed by:

5.   Instrument of Sasine in favour of the said Alexander Lord Montgomerie, afterwards ninth Earl, dated 17^th March, and recorded in the General Register of Sasines at Edinburgh, 6^th April 1677.

XXXIX     HEAD – INSTRUCTING

               That the said Hugh seventh Earl of Eglinton died in 1673, aged sixty, and was succeeded by his eldest son Alexander eighth Earl of Eglinton.

1.       In Viscount Kingston’s continuation of Maitland’s History of the Seaton Family it is stated that this Hew (7^th) Earle of Eglintone dyed att the House of Eglintone in anno 1673 and 60^th of his age.

This proves the death of the seventh Earl.

2.       It has been seen from the Instrument of Resignation, dated 6^th February 1669, and Charter and Sasine following thereon, that Alexander the eight Earl was invested in the estates during the lifetime of his father, the seventh Earl, consequently he made up no new title, no expede any service upon his father’s death.  That he so possessed the estates and honours, and survived his father, is proved by.

3.       The Crown Charter and Sasine in 1677, already referred to, in which he is designated Alexander, now Earl of Eglinton, and by which he reserved to himself a life-rent annuity of 6000 merks Scots, as a necessary sustentation suited to his rang and quality.

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               That the said Alexander eighth Earl of Eglinton, married twice:  1^st In January 1638, Elizabeth Crichton, eldest daughter of William second Earl of Dumfries, by whom he had male issue three sons; and, upon 8h December 1698, Catharine, daughter of Sir William St. Quentin by whom he had no issue.  The said here sons, being his only male issue, were::

1.       Alexander, afterwards ninth Earl of Eglinton

2.       Hugh, afterwards a major in the army, died without issue

2.       In the Procuratory of Resignation, dated 25^th December 1664, and the Instrument of Resignation, and Charter and Sasine of 1669, all before referred to there is mentioned the contract of marriage between the eight Earl, then Alexander Lord Montgomerie, and Dame Elizabeth Crichton, his spouse.

3.       In the Charter and Sasine of 1677, also before referred to, and which proceeded upon the procuratory of the said eighth Earl, there is reserved a liferent annuity to the said Dame Elizabeth Crichton his spouse.  The charter itself is in favour of Alexander Lord Montgomery, eldest son of the eight Earl and makes provisions for Mr. Hugh Montgomerie, second son of the said Earl and Lady Mary Montgomerie his eldest daughter, and Mr. John Montgomerie, and Lady Margaret Montgomerie, also children of the said Earl and Lady Elizabeth Chricton.

4.       An Edition and Continuation of Douglas’s Peerage of Scotland, by John Philip Wood, Esq., published in 1813, and which is a work of admitted accuracy generally and must be held especially so in reference to the Montgomerie or Eglinton Family, since the editor makes particular mention on the kindness of the last Earl of Eglinton in forwarding to him the whole charters of the family down to the 17^th century, in order to have the account as complete and accurate as possible.  In this work the eight Earl’s two marriages and issue are given as above stated.

The four authorities last described prove the marriages and male issue of the eight Earl of Eglinton as proposed in the fortieth Head.

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That the said Alexander eight Earl died in 1701, and was succeeded by his eldest son Alexander, as ninth Earl of Eglinton.

This deed proves, inter alia, that of its date, 1729, Alexander eight Earl had deceased, and that the above Alexander ninth Earl had a son and heir, Alexander Lord Montgomerie.

These two documents last described prove the death of the eight Earl, and succession of his eldest son Alexander as ninth Earl of Eglinton.

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That the said Alexander, ninth Earl of Eglinton married three times:  1^st, in December 1676, Margaret, eldest daughter of William Lord Cochrane, by whom he had male issue two sons; 2d, Ann, eldest daughter of George Earl of Aberdeen, but by her he had issue only a daughter, 3d, Susanna, daughter of Sir Archibald Kennedy of Culzean, Baronet, by whom he had male issue three sons. The two sons of the first marriage, and the three sons of the third marriage, being his whole male issue, were:

1.       Hugh, died 1696, at the University of Glasgow, underage, and unmarried.

2.       Alexander, died within fourteen days of Hugh, underage, and unmarried.

3.       James, died underage, and unmarried.

4.       Alexander, afterwards tenth Earl of Eglinton.

Nos. 1 and 2 prove the ninth Earl’s marriage.

3.       In wood’s Peerage it is also stated, that of this first marriage there was male issue two sons:  1.  Hugh Master of Montgomery, who died at the University of Glasgow, 1696, under age, and unmarried; 2. Hon. Alexander Montgomerie, who died young.

This proves that the only male issue of the first marriage, were High and Alexander, and that they both predeceased their father, unmarried.

Nos. 4 and 5 prove the second marriage of the ninth Earl, and that there was only a daughter of the same.

6.       Again, Wood states that his Lordship married, thirdly, Susanna, daughter of Sir Archibald Kennedy of Culzean, Baronet, and by her had (male issue) three sons; 1. James Lord Montgomery, who died under age, and unmarried; 2. Alexander tenth Earl of Eglinton; 3. Archibald eleventh Earl of Eglinton.

This proves the ninth Earl’s third marriage, and that the only

7.       Procuratory of Resignation, already referred to, dated 30^th January 1729, by the ninth Earl, in favour of (1) Himself in liferent; (2) Alexander Lord Montgomerie, his eldest son; (3) Archibald Montgomerie, his second son; and here are remoter heir called in the other  substitutions, but no mention whatever of the three sons who were older.

This, joined in the designations of the two youngest sons, shows that the three elder, Hugh and Alexander (by first marriage) and James (the eldest by third marriage), must have then predeceased without issue.

8.       Disposition, dated 22d December 1726 and recorded I books of Council and Session of same date, by Robert Wallace, in favour of the ninth Earl in liferent, and Alexander Lord Montgomerie his eldest son, whom failing, Mr. Archibald Montgomerie, his second son, in fee:

Nos. 6, 7 and 8, prove that the three eldest sons of the ninth Earl died without issue and that the two youngest were the only surviving male issue.

The eight authorities last described prove the marriages and male issue of the ninth Earl of Eglinton.

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That Alexander ninth Earl of Eglinton died in March 1729, and his three eldest sons, Hugh, Alexander and James, having all predeceased him, as has just been proved, he was succeeded by his fourth but eldest surviving son Alexander tenth Earl of Eglinton.

1.       Crown Charter of Resignation (proceeding upon the procuratory no. 163) in favour of the tenth Earl, dated 22d June 1732, which contains the following substitutions:  (1^st), Alexandre Comiti de Eglinton filio legitimo natu maximo quond Alexandri Comitis de Eglinton, et hæredibus masculis ex ejus corpore procreand; (2d) Magistro Archibaldo Montgomerie, filio natu secundo dict quond Alexandri Comitis de Eglinton, et hærdibus masculis ex ejus corpore procreand; (3d) Hæredibus masculis (si ulli sint procreat), ex corpore Colonelli Joannis Montgomerie nunc decces, unlei filii quond Magistri Francissi Montgomerie de Giffen; (4^th), Hæredibus masculis descenals ex corpore quond Coloneli Jacobi Mongomerie de Coilsfield, et hæredibus masculis ex eorum corporibus; (5^th) Propinquioribus et legitimis hæredibus et assignatis quibuscunque quond Alexandri Comitis de Eglinton, patris dict. Quond Alexandri Comitis de Eglinton, et avi dict. Alexandri nunc Comitis de Eglinton.

This Charter proves the death of the ninth Earl, the predeceased of his three eldest sons, Hugh, Alexander, and James and succession of the tenth Earl of Eglinton, who was his fourth son.  It likewise proves the whole male members of the family who survived at its date 1732.

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That the said Alexander tenth Earl of Eglinton died 24^th October 1769, without issue, and was succeeded by his only surviving brother Archibald, as eleventh Earl of Eglinton.

1.       Extract of the Special Retour of Archibald eleventh Earl, dated 5^th March 1770, as heir of provision to Alexander tenth Earl, his Frater immediate natu major.  Archibald eleventh Earl was here served propinquior et legitimus hæres tailliæ in terms of the Crown Charter, dated 22d June 1732, already referred to; and the Retour declares he date of the tenth Earl’s death to have been 24^th October 1769.  The tenth Earl is by this Retour proved to have died without leaving male issue.

2.       Besides this Special Retour, of date 25^th April 1770, the said Archibald eleventh Earl was also served heir in general to the tenth Earl.

These two documents prove the death, without issue, and succession of the eleventh Earl of Eglinton.

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That the said Archibald, eleventh Earl married twice; 1^st, upon 30^th March 1772, Jane, eldest daughter of George eighteenth Earl of Crawford, but by her he had no issue; and 2d upon 9^th August 1783, Frances only daughter of Sir William Twisden; that, by this second marriage, the Earl had only issue two daughters; and that his Lordship died without male issue, upon 30^th October 1796, when he was succeeded in his Estates descending to heirs-male, as well as in his Titles and Honours of Earl of Eglinton, &c., limited in the same way, by his third cousin Hugh twelfth and last Earl of Eglinton, grandfather of the present Earl who was, as will afterwards be proved, the direct male descendant of Colonel James Montgomerie first of Coilsfield, the fourth son of Sir Alexander Seaton of Montgomerie sixth Earl of Eglinton, the eleventh Earl having been the last male descendant of the eldest son of the sixth Earl.

The eleventh Earl’s two daughters were:

1.       Lady Mary Montgomerie, - married 28^th March 1803, to Archibald Lord Montgomerie, eldest son of the said Hugh twelfth Earl of Eglinton, thereby uniting the lineal and male branches of the family, of which marriage the present and thirteenth Earl (the claimant) is the only surviving issue.

2.       Susanna; born 20^th May 1788; died 16^th November 1805, in her 18^th year.

1.       In Wood’s Peerage it is stated, that the eleventh Earl, married first, 30^th March 1772, Lady Jean Lindsay, eldest daughter of George eighteenth Earl of Crawford – she died without issued, at Eglinton Castle, 22d January, aged 21; secondly, at London, 9^th August 1783, Frances only daughter of Sir William Twisden of Roydon Hall, in Kent, Bart., and by her had two daughters: -1. Lady Mary Montgomery, born 5^th March 1787 – married at London, 28^th March 1805, to Archibald Lord Montgomerie, eldest son of Hugh twelfth Earl of Eglinton, thus uniting the lineal and male branches of the family; 2d Lady Susanne, born 20^th May 1788, died at Clochester, in Essex, 16^th November 1805, in her 18^th year.

This proves the marriages and issue of the eleventh Earl.

2.   Retour of the General Service, dated 27^th February 1797, of Lady Mary Montgomerie, legitima et propinquior hæres dicti quondam Archibaldi Comitis de Eglinton, sui patris.

3.   Retour of the Special Service, dated 14^th January 1797, of Hugh twelfth and last Earl of Eglinton, as heir of provision of Archibald eleventh Earl, his consanguineus.  By this document, Hugh twelfth Earl was served propinquior et legitimus hæres tailliæ, dicti nuperi Archibaldi Comitis de Eglinto, ejus consanguinei, in terms of the Crown Charter, dated 22d June 1732.  The date of the eleventh Earl’s death is stated in the Retour to have been upon 30^th October 1796.

These Retours prove that Archibald eleventh Earl of Eglinton left no male issue, and accordingly, Wood in his Peerage states, Archibald (eleventh) Earl of Eglintoun dying without male issue, was succeeded, &c.  If he had left any male issue, they would, in virtue of the destination in the Charter, 22d June 1732, have succeeded to the Estates and Titles.  The Retour, therefore, of Earl Hugh, No. 3, fixes the failure of the whole male heirs, who, by this Charter, were nominated to succeed prior to those in the substitution.  Hæredibus masculis descensis ex corpore quond Colonelli Jacobi Montgomerie de Coilsfield, under which substitution Earl Hugh succeeded.

These three authorities last described prove the marriages, issue, and death of the eleventh, and succession of the twelfth Earl of Eglinton.

EXTINCTION OF COLLATERALS

Who would have been entitled to succeed preferably to Colonel James Montgomerie of Coilsfield, fourth son of Sir Alexander Seaton the sixth Earl of Eglinton.

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That the said Major Hugh Montgomerie and Major John Montgomerie, who were the younger sons of Alexander eighth Earl of Eglinton, both died without issue.

1.       In Wood’s Peerage it is stated, that the Non. Major Hugh Montgomerie died without issue; Hon. Major John Montgomerie died without issue; and these are set down by Wood as the second and third sons of the eight Earl.

2.       The Procuratory of Resignation, already referred to, dated 30^th January 1729, proves that these two sons died without leaving male issue, from their elder brother, the ninth Earl, the make of that deed, calling all the male heirs farther distant I the succession without nominating them or their issue.

3.       Crown Charter, already referred to, dated 22d June 1732, which shows the whole male members of the family who survived at that date; and these two sons are not, either by themselves or issue, included amongst the number.

The three authorities last described prove that Major Hugh and John Montgomerie, the two younger sons of Alexander eight Earl died without issue.  And indeed their extinction is proved by the fact of Hugh, twelfth and last Earl of Eglinton, and also the present Earl, having succeeded to and held the Eglinton honours under the destination to Sir Alexander Seaton and Montgomerie, the sixth Earl, and the heirs-male of his body, in virtue of their direct male descent from Colonel James Montgomerie of Coilsfield, who was fourth son of this sixth Earl, while the said Majors Hugh and John Montgomerie were descended from the eldest son.

Having, under the 46^th Head, extinguished the two younger sons of Alexander the eight Earl, who was eldest son of Hugh the seventh Earl of Eglinton, the next in the order of succession being the Honourable Francis Montgomerie of Giffen, the second and youngest son of the seventh Earl, will now be extinguished.
 

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            That the said Honourable Francis Mongomerie of Giffen, who was second and youngest son of the seventh Earl, married twice; 1^st in 1674, Margaret Countess of Leven, by whom he had no issue; and 2d Elizabeth, daughter of Sir Robert Sinclair, Bart, and widow of Sir James Primrose, by whom he had male issue two sons, who were his only male issue; viz.

1.       John, afterwards a colonel in he army.

5.   Bond, dated 22d and 26^th December 1713, by Alexander ninth Earl of Eglinton, and he said Francis Montgomerie and John Montgomerie, his son, in favour of Sir John Clerk of Pennycuick.

6.   The Procuratory of Resignation already referred to dated 30^th January 1729, contains a substitution in favour of Colonel John Montgomerie, only son then living of the deceased Mr. Francis Montgomerie of Givven.

The six authorities last described prove the marriages of the Honourable Francis Montgomerie, second son of the seventy Earl of Eglinton, and his male issue.

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That the said Honourable Francis Montgomerie died August 1726, and was succeeded by his eldest son Colonel John Montgomerie.

1.       Disposition, dated 30^th July 1730, and recorded in the books of Council and Session, 17^th February 1731, by Colonel Patrick Ogilvie to Sir John Anstruther, of a debt affecting the lands of Giffen, purchased by Sir John at a judicial sale, in which it is narrated, that the said Mr. Francis Montgomerie of Giffen departed this life in the month of August 1726.  Accordingly,

2.       In the Procuratory of Resignation, dated 30^th January 1729, already referred to, there was named Colonel John Montgomerie, only son living of the deceased Mr. Francis Montgomerie of Giffen.

The two documents last described prove the death of the Honourable Francis Montgomerie, and succession of his eldest son Colonel John.

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            That the said Colonel John Montgomerie eldest son of the said Honourable Francis Montgomerie, married, upon 28^th September 1704, Mary second daughter of John first Earl of Hyndford, by whom he had a daughter named Beatrix; but he had no male issue.  He died between 1729 and 1732.

3.       In the subsequent Crown Charter, however, already referred to, dated 22d June 1732, the substitution referring to Colonel John is as follows:  Hæredibus masculis (si ulli sint) ex corpore Colonelli Joannis Montgomerie nunc demostui unici filii quond Magistri Francisci Montgomerie de Giffen.

This proves that Colonel John had died betwixt 1729 and 1732.

4.       Retour of the Special Service already referred to, dated 14^th January 1797, of Hugh twelfth and last Earl of Eglinton, as Heir of Provision under the said Crown Charter, dated 22d June 1732, in virtue of being the direct male descendant of Colonel James Montgomerie of Coilsfield, whose heirs-male were called by the fourth, while Colonel John’s were called by the third substitution.

5.       In Wood’s Peerage, already referred to, it is stated that Lieutenant-Colonel John Montgomerie, eldest son of the Honourable Francis Montgomerie of Giffen, married Lady Mary Carmichael, second daughter of John first Earl of Hyndford; they had a daughter Beatrix, born 27^th September 1705, but no male succession – Edinburgh Register.

Nos. 3 and 4 prove that Colonel John died without male issue.

The five authorities last described prove the marriage of Colonel John Montgomerie, and that he died without male issue.

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            That the said Colonel Alexander Montgomerie, second and youngest son of the Honourable Francis Montgomerie of Giffen, died of his wounds at the Battle of Almanza in Spain, in 1711, without issue.

3.       And in the subsequent Crown Charter, before referred to, dated 22d June 1732, the substitution referring to Colonel John (who by this time, it will be remarked, had himself predeceased) is as follows:  Hæredibus masculis (si ulli sint) ex corpore Colonelli Joannis Montgomerie nunc demortui unici filij quond Magistri Francisci Montgomerie de Giffen; and in neither of these two deeds is there any allusion to Colonel Alexander’s heirs.

The three authorities last described prove the death without issue of Colonel Alexander Montgomerie.  And indeed his extinction is proved by the fact, already alluded to, of Hugh twelfth and last Earl of Eglinton and also the present Earl, having succeeded to and held he Eglinton honours under the destination to Sir Alexander Seaton or Montgomerie, the sixth Earl, and the heirs-male of his body, in virtue of their direct male descent from Colonel James Montgomerie of Coilsfield, who was fourth son of this sixth Earl, while the said Colonel Alexander Montgomerie was descended from the eldest son.

Having, from the 46^th to the 50^th Heads, extinguished the whole male issue of Hugh seventh Earl of Eglinton, eldest son of Sir Alexander Seaton of Foulstruther, afterwards Alexander Montgomerie sixth Earl of Eglinton – the next in the order of succession, being the second and third sons of this sixth Earl, will now be proved to have died without issue – beginning with the second.

            That Sir Henry Montgomerie of Giffen, the second son of Sir Alexander Seaton of Foulsruther, afterwards Alexander Montgomerie sixth Earl of Eglinton, and who was born 26^th June 1614, married 21^st September 1640, Lady Jean Campbell, widow of Robert first Viscount Kenmure; but there was no issue of the marriage, and he died without issue before 1669.

1.       In Wood’s Peerage it is stated of the second son of the sixth Earl as follows:  2. Honourable Sir Henry Montgomerie of Giffen born 19^th August 1614.  He had a Charter of the lands of Giffen, in Ayrshire, 31^st July 1636; he married 21^st September 1640, Lady Jean Campbell, third daughter of Archibald seventh Earl of Argyle, relict of Robert first Viscount Kenmure, without issue.

This proves the marriage without issue of Sir Henry.  The date of his death is not given, but from what follows it must have been before 1669.
 

2.       Instrument of Resignation, Charter, and Sasine of 1669, and Charter and Sasine, of 1677, all before referred to, in which, immediately after the substitution to the second son of Hugh seventh Earl of Eglinton the next substitution is to Colonel James Montgomerie of Coilsfield, who was fourth son of the sixth Earl.  If the second son of the sixth Earl (Sir Henry), or the third son (Alexander) had been alive, or had left male issue, they would have been called prior to Colonel James, the fourth son.

3.       Crown charter of Confirmation, dated 28^th January 1687, whereby there was confirmed a Disposition granted on 29^th January 1669, by the deceased Hugh seventh Earl of Eglinton, to his second son Francis of the lands of Giffen.  This proves that before that date, Sir Henry, who was Earl Hugh’s next brother, had deceased without issue; for, as it is established that Sir Henry previously held the lands of Giffen, they could not have reverted to Earl Hugh, unless Henry himself had predeceased.

4.       Procuratory of Resignation of 1729, and Charter thereon of 1732, already referred to, which contain no substitution in favour of Sir Henry or his issue, while the issue of Colonel James Montgomerie of Coilsfield, who was his second younger brother, are substituted immediately after the issue of the seventh Earl, who was the eldest brother.

5.       Retour of the Special Service, before referred to, dated 14h January 1797, of Hugh twelfth and last Earl of Eglinton, as heir of provision under the said Crown Charter, dated 22d June 1732, in virtue of being the direct male descendant of Colonel James Montgomerie, the second younger brother of Sir Henry.

The five authorities last described prove the death of Sir Henry Montgomerie of Giffen, without issue.  And indeed his extinction is proved by the fact, before referred to, of Hugh, twelfth and last Earl of Eglinton, and also the present Earl, having succeeded to and held the Eglinton honours under the destination to Sir Alexander Seaton or Montgomerie, the sixth Earl, and the heirs-male of his body, in virtue of their direct male descent from Colonel James Montgomerie of Coilsfield, who was fourth son of this sixth Earl, while he said Sir Henry Montgomerie was the Earl’s second son. 

LIL       HEAD – INSTRUCTING

That Colonel Alexander Montgomerie, third son of the sixth Earl of Eglinton, who was born 8^th  November 1615, died without issue before 1669.

1.       In Wood’s Peerage, it is stated of the third son of the sixth Earl of Eglinton as follows:  3. Hon. Colonel Alexander Montgomery, born 5^th November 1615, died in Ireland without issue.

2.       Instrument of Resignation, Charter and Sasine of 1669, and Charter and Sasine of 1677, all before referred to, in which neither Colonel Alexander nor his heirs are mentioned as substitutes, while, on the contrary, his immediate younger brother, Colonel James Montgomerie of Coilsfield, is substituted immediately after the two sons of the seventh Earl.

The four authorities last described, prove the death without issue of Colonel Alexander Montgomerie, third son of sixth Earl.  And indeed his extinction is proved by the fact so frequently alluded to, of Hugh, twelfth and last Earl of Eglinton, and also the present Earl, having succeeded to and held the Eglinton honours under the destination to Sir Alexander Seaton or Montgomerie, the sixth Earl, and the heirs-male of his body, in virtue of their direct male descent from Colonel James Montgomerie of Coilsfield, who was fourth son of this sixth Earl, while the said Colonel Alexander Montgomerie was the Earl’s third son.

DIRECT EXISTING EGLINTON LINE

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That Colonel James Montgomerie, first of Coilsfield, who was forth son of Sir Alexander Seaton or Montgomerie sixth Earl of Eglinton, and who was born 24^th October 1620, married the only child of Æneas Lord Macdonnel and Arron, by whom he had male issue, two sons, viz

1.       Alexander, survived his father, but died before 1680, unmarried.

2.   In Wood’s Peerage, before referred to, the following is sated regarding this Colonel James:  The Honourable Colonel James Montgomerie, fourth son of Alexander sixth Earl of Eglintoun, who acquired the estate of Coylsfield, in Ayrshire, and was accordingly designed of that place, &c.  Colonel James Montgomerie married the only child of Æneas Lord Macdonnell and Arros, by whom he had (male) issue;

1.   Alexander, who succeeded him, but died not long afterwards, unmarried;

2.    Hugh Montgomerie of Coilsfield, &c

The five authorities last described prove the marriage and male issue of Colonel James Montgomerie first of Coilsfield.

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         That the said Honourable Colonel James Montgomerie first of Coilsfield, died about 1675; that his eldest son Alexander died without issue before 1680 and that Hugh the second and only surviving son of Colonel James succeeded him as heir male in the lands of Coilsfield.

1.       In Wood’s Peerage, before referred to, it is stated of Colonel James, that he died before 18^th October 1675, on which day Major-Colonel Robert Montgomerie was served tutor-at-law to Alexander, Hugh, &c., children of the deceased Colonel James Montgomerie of Coilsfield, his brother german (Inq Ret. In Publ. Arch).

2.       Contract of Marriage, dated 10^th September 1708, between Hugh second of Coilsfield and Catherine Arbuckles.

3.       Disposition, dated 25^th April 1734, by the above Hugh, narrates the above marriage contract and that thereby he had become bound to convey Coilsfield to the heirs-male of the said marriage.  And whereas Alexander Montgomerie, my son, procreate betwixt me and the said Catherine Arbuckles is the heir-male existing of my said marriage.  The Disposition is in consequence in favour of Alexander, and after him the daughters, seriatim, of Hugh.

This proves that at 25^th April 1734, Alexander was the only existing male issue of Hugh second of Coilsfield.

The three authorities last described prove the marriages and male issue of Hugh Montgomerie second of Coilsfield.

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That the said Hugh Montgomerie second of Coilsfield died in 1735,and was succeeded by his only son Alexander third of Coilsfield.

These prove the death of Hugh second of Coilsfield, and succession of his only son, Alexander third of Coilsfield.

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         That the said Alexander Montgomerie , third of Coilsfield, married Lillias, daughter of Sir Robert Montgomerie of Skelmorlie, Baronet, by whom he had male issue five sons.  The eldest, from whom Lord Eglinto is descended, was Hugh, born about 1740, succeeded his father in the lands of Coilsfield; and thereafter, upon 30^th October 1795, in consequence of the death of his cousin Archibald eleventh Earl of Eglinton, without male issue, succeeded to the Titles and Honours of Earl of Eglinton as Hugh twelfth Earl.

         NOTE:  Since Lord Eglinton is descended from this twelfth Earl, his grandfather, it is unnecessary to trace any thing here regarding the four younger brothers as they would only be next in the order of succession after Lord Eglinton.

2.       Disposition by the said Alexander Montgomerie in favour of Hugh twelfth Earl, dated 27^th June, and recorded in the Books of Council and Session 6^th September 1774, in which he narrates – Contract of marriage between Captain Hugh Montgomerie of 1^st Regiment of Foot, my eldest son, and Eleonora Hamilton, &c.

3.       Disposition and Tailzie, dated 27^th June, and recorded in Books of Council and Session 6^th September 1774 by the said Mrs. Lillian Montgomerie, and Alexander Montgomerie, in favour of Hugh Mongomerie, Esquire, my eldest son and heir of taillie, Captain in the 1^st Regiment of Foot, and he heirs-male of his body.

These two deeds prove that Hugh was the eldest of Alexander as well as of the marriage with Mrs. Lilias Montgomerie.

4.       In Wood’s Peerage, it is stated that Alexander Montgomery of Coilsfield, only son and heir (of Hugh Montgomery of Coilsfield) married Lillias, daughter of Sir Robert Montgomerie of Skelmorly, Baronet.  They had issue, 1. Hugh twelfth Earl of Eglinton, &c.

The four authorities last described prove the marriage of Alexander Montgomerie, third of Coilsfield, and his eldest son to have been Hugh Montgomerie fourth of Coilsfield, and afterwards twelfth Earl of Eglinton.

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That the said Alexander Montgomerie third of Coilsfield died 28^th December 1783, and was succeeded in the estate of Coilsfield by his eldest son Hugh Montgomerie fourth of Coilsfield, afterwards twelfth Earl of Eglinton.

1.       Mr. Wood in his Peerage states, that Alexander died at Coilsfield 28^th December 1783.

2.       Feu Charter and Precept of Clare Constat, dated 20^th July 1790, by Dr. Andrew Hunter, in favour of the above Hugh, therein designed Colonel Hugh Montgomerie the Precept of Clare declares that he (Hugh) was eldest son and nearest and lawful heir to the said Alexander Montgomerie.

These prove the death of Alexander Montgomerie third of Coilsfield, and succession of his eldest son Hugh as fourth of Coilsfield.

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         That the said Hugh Montgomerie, fourth of Coilsfield succeeded as twelfth Earl of Eglinton, upon the death of his cousin the eleventh Earl in 1796; that he married his cousin Eleanor, fourth daughter of Robert Hamilton of Bourtreehill, Esq., by whom he had male issue two sons, the eldest of whom as he was the father of Lord Eglinton, it is alone necessary here to trace, viz.

         Archibald Lord Montgomerie, born 30^th July 1773, predeceased his father 1814.

1.       The Disposition already referred to, dated 27^th June and recorded in books of Council and Session 6^th September 1774, by Alexander third of Coilsfield, in favour of Hugh twelfth Earl, narrates – Contract of Marriage between Captain Hugh Montgomerie of 1^st Regiment Foot, my eldest son, and Eleonora Hamilton, youngest daughter of Robert Hamilton of Bourtreehill, Esquire, and which is dated 3d and 8^th June 1774.

This proves the twelfth Earl’s marriage.

Nos. 2 and 3 prove that Archibald the eleventh Earl was succeeded by Hugh the twelfth Earl; and they further establish that this Hugh the twelfth Earl was the nearest heir-male of Archibald the eleventh Earl.

4.       In Wood’s Peerage it is stated that Hugh, twelfth Earl of Eglinton, married his cousin Eleanor, fourth daughter of Robert Hamilton of Bourtreehill, in the county of Ayr, sister of Jean Countess of Crawford and Lindsay.  They had issue, 1. Archibald Lord Montgomery, &c., and that his Lordship was born on 30^th July 1773.

5.       Testament Dative of the Right Honourable Archibald Mongomerie of Coilsfield, commonly called Lord Montgomerie, by the Commissaries of Edinburgh, dated 28^th July 1814; thus proving that he was eldest son of the twelfth Earl.

The five authorities last described prove the succession of Hugh Montgomerie, fourth of Coilsfield, to Archibald eleventh Earl of Eglinton, his marriage and the birth of Archibald Lord Montgomerie his eldest son.

LX     HEAD – INSTRUCTING

         That the said Archibald Lord Montgomerie eldest son of Hugh twelfth Earl of Eglinton, was born 30h July 1773, and married 28^th March 1803, the Lady Mary Montgomerie, only surviving daughter of Archibald eleventh Earl of Eglinton, by whom he had two sons, and that he died in 1814, in the lifetime of his father.

1.       Hugh, born 25^th January 1811, died 13^th June 1817, aged six years.

2.       The testament-dative, already referred to of the said Archibald Lord Montgomery dated 28^th July 1814, proves that he had predeceased Hugh the twelfth Earl, his father.

3.       Retour of the Special Service, dated 10^th March 1836, of Archibald the present Earl of Eglinton, as heir-male of the body of Hugh last Earl of Eglinton, his grandfather, in the estates of Skolmorlie and Coilsfield, which bears Quod Hugone Montgomerie filio natu maximo nune demortui Archibaldi Domini Montgomerie, decasse in infantia celobi et sine legitima prole, dictus Archibaldus Montgomerie Hamilton de Skelmorlie et Bourtreehill, Comes de Eglinton, lator presentium est unious survivens filius dict. Demortui Archibaldi Domini Montgomerie qui fillus legitimus natu maximus fuit dicti Hugonis Montgomerie de Skelmorlie, ultimi Comitis de Eglinton.

The three authorities last described prove he marriage and male issue of Lord and Lady Montgomerie and he decease of his Lordship in 1814, and of his eldest son Hugh in infancy.

LXI    HEAD – INSTRUCTING

         That the said Hugh, twelfth and lat Earl of Eglinton, having survived his eldest son Lord Montgomerie, died 14^th December 1819, and was succeeded by the claimant, Archibald, the present and thirteenth Earl of Eglinton, his only surviving grandson and heir-male.

These two authorities prove the death of Hugh twelfth and last Earl of Eglinton on 14^th December 1819, after having survived his eldest son; and that he was then succeeded by his only surviving grandson and heir male, the present and thirteenth Earl of Eglinton.

Having now proved, by the documentary evidence which has been so fully detailed, the chain of Lord Eglinton’s propinquity as heir-male of provision, to George fourth Earl of Winton, and having also  established the entire extinction of every male descendant, immediate or remote, who would have been entitled to succeed preferably to his Lordship, it shall, in addition be shown, although not necessary for the object of the present proceedings, that any heirs called, or that might have been called by George the fourth Earl of Winton, under the power of nomination contained in the second substitution of the charter of 31^st July 1686, preferably to his heirs-male general, who are called by the third substitution in that charter, have failed and are extinct.  The power which was conferred upon the fourth Earl was under the second substitution in the charter, whereby the estates and honours are conveyed, failing the Earl and the heirs-male of his body, to whatsoever person or persons the said Earl of Winton should designate or nominate by a writing subscribed with his hand at any time of his life, etiam in ipso articulo mortis and o the heirs-male of their bodies and that under and with the burden of the conditions and provisions to be contained in the said nomination which the persons so to be nominated by him should be bound to perform and fulfil, whom failing, (which is the third substitution), and if he should not have subscribed such nomination, or should recal or cancel the same after being subscribed, then and in that case to his own heirs-male.

From the searches which will immediately be detailed, it will be proved that no deed of nomination by George the fourth Earl, to whom alone the privilege of nomination belonged, has been found in the charter chests of the Winton family, or in any other place where such a document fell to be preserved nor entered in any of the various records.  There has, however, already been referred to an extract of an instrument of sasine, which bears that it followed upon a disposition by George the fourth Earl of Winton, dated 7^th April 1697, that is, about seven years before his death of the estates and titles of honour in favour of George Lord Seaton, his eldest son, who afterwards succeeded as fifth Earl of Winton, and was attainted, and of Mr. Christopher Seaton, his second lawful son, and the heirs-male respectively of their bodies.  The extract of the sasine does not bear that the disposition was in favour of any other party nominatim, but it recites certain substitutions, all of which are to heirs to be procreated of the body of the Earl and is above named two sons, followed by a substitution to any persons that the Earl might nominate, and concludes with the following substitution; and failing of any such nominatione, or failzeing of the person or persons soe to be nominate, then and in hat case to the said noble Erle, his nearest aires male, thereby repeating and confirming the substitution or remainder in the charter 1686, to the Earl’s own heirs-male general, under which Lord Eglinton claims the honours.

Now it has already been proved, that neither the fourth Earl himself, nor either of the two sons whom alone it has been proved he had by either of his marriages, left any female issue, the fact being that the Earl had only one daughter by his first marriage, who died in infancy, and that both his sons died unmarried.  Thus the first as to the fourth Earl himself, there has been previously referred to a will or testament by the said George fourth Earl, dated 21^st February 1704, nominating George Lord Seaton, his eldest son and apparent heir, and Mr. Christopher Seaton, his brother-german, to be his only executors.  This testament, it is proved, was executed twenty-one years after the birth of Christopher the youngest son, and within a month of the Earl’s death, and neither it, nor any of the other deeds previously recited, make any mention, in any way, of any other son or child of the fourth Earl.  The other proof already stated also directly establishes that there was no other issue of the fourth Earl than the two sons, and the daughter by his first marriage, who died in infancy.  Thus the eight documents detailed under the II. Branch, 7^th Head, ;prove, of the two marriages of George fourth Earl of Winton, the only issue to have been one daughter, who died in infancy, and two sons, George the fifth Earl and Christopher.

In regard to his eldest son George the fifth Earl, under the II. Branch and 9^th Head, the documentary evidence there detailed proves the attainder of George fifth Earl of Winton and his subsequent death without lawful issue and unmarried.

And as to the remaining son, Christopher, the nine documents detailed under Branch II. Head 10, with the evidence stated under the ninth Head, also there referred to, prove that Christopher Seaton, the second and only other son of the fourth Earl, besides his elder brother the fifth Earl, died without issue.

The following are the searches which have been made, and the certificates which prove that no deed of nomination to the honours of Winton, by George the fourth Earl, or deed of alteration, or other deed by him affecting the succession to the estates and honours of Winton, has been found – the searches in the registers embracing the period from 1^st January 1697, being seven years prior to that Earl’s death, down to January and March 1716, the dates of the apprehension and attainder of George the 5^th Earl.

3.       The General Register of Sasines, and also he particular Register for the counties of Edinburgh, Haddington, &c.; per two certificates by Mr. Dempster and Mr. Robertson, dated 25^th January 1834, and 11tgh and 12^th September, and 10^th and 12^th October 1836.

4.       The Records of the Sheriff Court of Edinburgh for deeds recorded there, for the period from 1697 to 1717, with the exception of the years 1697, 1700 and 1704, the volumes for which are awanting, per certificates of Mr. Dempster, dated 5^th November 1836.

5.       The Record of General and Special Retours from the 1^st day of March 1704, being the period of the death of George fourth Earl of Winton, to 1^st March 1716, the date of the attainder of the fifth Earl, per certificates by Mr. Dempster, dated 27^th January 1834.

6.       The Record of Crown Charters, for the same period, per certificates by Mr. Dempster, dated January 1834.

7.       The Records of the Sheriff Court of Haddington, in which county the principal parts of the Winton estates were situated, and the Earls had their residence, from 1^st January 1702, there being no record prior to this date, except a few loose writings in sacks, without an index, or any other arrangement per certificate by Mr. Dempster, dated 7^th November 1836.

8.       The Records of the Burgh Court of Haddington, for the period from 1697 to 1717, per certificate of Mr. Dempster, dated 7^th November 1836.

11.   The whole proceedings in certain actions with the Kingston family, as to the succession to the Winton estates, after the death of the fourth Earl, and will Bailie Smith’s heirs, for any such deed, or the mention of any such, per certificate of Mr. Dempster, dated 22d March 1834.

12.   Searches made at Dunse Castle, the residence of William Hay, Esq., the lineal representative of the Kingston family, one of the branches of the house of Seaton, bearing that Mr. Hay,  with the assistance of his factor, had been unable to find any deed executed by Lord Winton in 1697; and afterwards that Mr. William Purves was satisfied that any such was not there; and again, that thee is no deed or writing there executed by George the fourth Earl of Winton, of the nature of a deed of nomination or alteration, or affecting the succession to the estates and honours of the Earldom of Winton, &c., per certificate by Mr. Dempster, dated October 1836 – memorandum dated March 1834 and the three relative letters, the two first being from Messrs. Dundas and Wilson, and the last from Mr. William Purves, dated respectively the 7^th March and 28^th April, and 23d September 1836.

13.   Searches made at Traquair House which had been chosen by some of the persons who were opposed to the Government in 1715 as a place of safety, where their valuable writings were deposited, bearing, first, that a number of the documents in the charter room and afterwards, that the whole titles and family papers in the library and charter-room, dated between 1697 and 1716, had been examined, and that although there are several family pictures of the Earls of Winton, and documents bearing reference to their close connexion with the family of Traquair, there is no deed or writing executed by George the fourth Earl of Winton of the nature of a deed of nomination or alteration or affecting the succession to the estates and honours of the Earldom of Winton, or any writing bearing reference to any such, per certificate by Mr. Dempster, dated 18^th February 1836, memorandum, dated March 1834, and relative letter from Messrs Walker, Richardson, and Melville, dated 25^th June 1834.

14.   Searches made in the repositories of, and among the papers in the chambers of the late Mr. John Wauchope, writer to the Signet, and relative memorandum, and a letter from Mr. W. H. ands, W.S., dated 23d May 1834, bearing that all the papers connected with the Winton family were in a box, which had previously been handed over to Messrs. Tod and Hill, as agents for Lord Eglinton, and that Mr. Wauchope’s papers having been arranged and inventories after his death, any other document relating to the Seatons would have been put into this box; but that nevertheless a search had been carefully made, but no trace of any deed or writing by George the fourth Earl, of the nature to be just mentioned, had been discovered.  And that

The decreet of sale of the Winton estate, and other papers in the ranking of the York Buildings Company, had been carefully examined, but contained no reference whatever to any deed of the nature of a nomination or alteration affecting the succession to the honours and estates of Winton, per certificate by Mr. Dempster, dated 18^th February 1836, - memorandum, dated March 1834, and the relative letter of the date already mentioned.

It is thus proved, independently of the legal presumption of the non-existence of such a deed unless it be produced, that there was not any exercise of the faculty of nomination and appointment of heirs, inconsistent with the destination in the regulating charter of 1686, to the heirs-male general of George fourth Earl of Winton, under which Lord Eglinton claims; and that, at any rate, all the heirs so called, or that might have been called preferably to these heirs-male general, have failed, and are extinct.

By the foregoing evidence, Lord Eglinton as established the three leading propositions which it was incumbent on him to instruct, in order to be served in the two characters of nearest and lawful heir-male general, and heir-male of provision, of George the fourth Earl of Winton, namely.

I.    That George fourth Earl of Winton, Lord Seaton and Trenent, to whom Lord Eglinton so claims to be served heir, was the grandson and heir-male of the body of George the third Earl of Winton, who was the second son and heir male of the body of Robert the first Earl of Winton, by his Countess Lady Margaret Montgomerie, eldest daughter of Hugh third Earl of Eglinton, Robert, the eldest son, who was second Earl of Winton, and who had previously resigned the estates and honours in favour of the third Earl, having died without issue; and which first Earl of Winton was he common ancestor both of the fourth Earl of Winton and of Lord Eglinton.

Under this Branch, thee have also been shown the whole immediate male collaterals of each of the successive Earls who would have been entitled to succeed preferably to Lord Eglinton, and that there were no collaterals so entitled to succeed.

II     That the said George fourth Earl of Winton, and all the other heirs-male of the body of the said George third Earl of Winton, are now extinct, and which male-heirs would have been the only heirs entitled to succeed preferably to those descended of the body of Sir Alexander Seaton of Foulstruther, afterwards Alexander Montgomerie sixth Earl of Eglinton, the third son of Robert first Earl of Winton, the common ancestor.

And

III    That the claimant, Archibald thirteenth Earl of Eglinton, is the nearest heir-male of the body of the said Sir Alexander Seaton of Foulstruther, afterwards Alexander Montgomerie, sixth Earl of Eglinton, and therefore nearest heir-male general to George fourth Earl of Winton, and also nearest heir-male of provision to him, under the substitution in the charter 1686, to his heirs-male general, of the titles of honour and dignities therein granted.

And as was proposed, it has in addition been proved that any heirs called, or that might have been called, under the power of nomination contained in the second substitution in the charter 1686, preferably to the heirs-male general of the said George fourth Earl of Winton, have failed and are extinct.

Lord Eglinton, therefore, claims to be served heir in the two characters specified in the relative claims, namely:

1.       As nearest and lawful heir-male general to George fourth Earl of Winton, Lord Seaton.

And

2.       As nearest and lawful heir-male of provision o the said George fourth Earl of Winton, Lord Seaton and Tranent, under and in terms of the third substitution in the destination contained in the said charter of resignation, novodamus, and erection, by James the Seventh of Scotland and Second of England, in favour of the heirs-male general of the said George fourth Earl of Winton, Lord Seaton and Tranent, of the titles, honours, and dignities of Earl of Winton, Lord Seaton and Tranent, and others therein contained, bearing dated the 31^st day of July 1686, and sealed the 12thday of December 1688.