THE TRYAL OF PHILIP STANDSFIELD SON TO SIR JAMES STANDSFIELD OF NEW-MILNS For the Murder of his Father and other Crimes Libel'd against him Published by Authority Edinburgh Printed by the Heir of Andrew Anderson Printer to the King 's most Sacred Majesty Anno Dom. 1688. The Tryal of Philip Standsfield Son to Sir James Standsfield of New-milns for the Murder of his Father and other Crimes Libel'd against him Curia justiciaria S. D. N. Regis tenta in praetorio Burgi de Edinburgh Sexto die Mensis Februarii 1688. per Nobilem Potentem Comitem Georgium Comitem de Linlithgow Dominum Livingstoun c. Justiciatium Generalem totius Regni Scotiae honorabiles viros Dominos Ioannem Lockhart de Castlehill Davidem Balfour de Forret Rogerum Hodge de Harcarse Ioannem Murray de Drumcairn Commissionarios Justiciariae dicti S. D. N. Regis Curia Legitime affirmata INTRAN Philip Standsfield eldest lawful Son to Umquhile Sir James Standsfield of New-milns Prisoner within the Tolbooth of Edinburgh INdyted and Accused at the Instance of Sir John Dalrymple younger of Stair His Majesties Advocat for His Highness Interest That where notwithstanding by the Law of God the common Law Law of Nations Laws and Acts of Parliament of this Kingdom and constant Practice thereof the expressing of malitious and seditious Words to the Disdain of His Sacred Majesties Person and contempt of His Royal Government such as Drinking or Wishing Confusion to His Majestie is high Treason particularly by the 2d Act 2d Sess Par. 1st K. Ch. 2d of ever Glorious Memory The Plotting Contriving or Intending Death or Destruction to the King's Majestie or any bodily harm tending to Death or Destruction or who shall by Writing Printing or other malitious and advised Speaking express and declare such their Treasonable Intentions after such persons being legally Convicted thereof they shall be Deemed Declared and Adjudg'd Traitors And the Cursing Beating Invading or Assassinating of a Parent by a Child above the age of sixteen years who is not Mad and Furious is punishable by Death and Confiscation of Moveables And of all other Murders Paricide is the most atrocious and unnatural And Murder under Trust is punishable as Treason with forfaulture of Life Land and Goods and particularly by the 20 Act 1st Sess 2d Par. K. Ch. 2d The King's Majesty and Estates of Parliament Considering how great and atrocious a Crime it is for Children to beat or curse their Parents and how the Law of God hath pronounced just Sentence of Death against such as shall either of these wayes injure either of their Parents Therefore the King and Estates of Parliament did Statute and Ordain That whatsoever Son or Daughter above the age of sixteen years not being Distracted shall beat or curse either their Father or their Mother shall be put to death without mercy And sicklike by the 51 Act 11 Par. K. Ja. 6. It is Statuted and Ordained That the Murder or Slaughter of whatsomever of the Leidges where the party slain is under the Trust Credit Assurance and Power of the Slayer all such Murder or Slaughter to be committed in time coming the same being lawfully Tryed and the person dilated found guilty by an Assise thereof shall be Treason and the person found culpable shall Forfault Life Land and Goods as in the saids Laws and Acts of Parliament at more length is contained Nevertheless it is of Verity that the said Philip Standsfield shaking off all fear of God the Bonds and Tyes of Nature and Christianity regard and obedience to the saids Laws and Acts of Parliament did dare and presume to commit the saids horrid and detestable Crimes in swa far as upon the first second third or one or other of the Days of the Moneths of June July August or September last by-past or one or other of them he did within the House and Kitchin of New-milns call for Ale to Drink some Healths and in the presence of John Robison then his Fathers Servant Agnes Bruce likewise his Fathers Servitrix and several others he did as a most villanous and avowed Traitor presume and dare to begin a Health to the Confusion of His Sacred Majesty his native Soveraign and did Drink off the same and caused others in His company do the like And sicklike Sir Iames Standsfield of Newmilns his Father having caused educat and bring him up decentlie and in plenty conform to his rank and qualitie and having left no means unessayed for his Literature Education and Subsistence Yet he being a profligat and debauched Person did commit and was accessorie to several notorious Villanies for which both at home and abroad he was apprehended and detained Prisoner as in the Marshall Sea-Prison in Southwark in the publick prisons of Antwerp and Orleance and several other places and tho his Father out of his natural compassion to him did cause release him out of these prisons in which he was so justly confined He no sooner had his Liberty than he of new invented and went about his villanous practices and debauches And his Father at last perceiving that nothing could reclaim him from these and the like proceedings having signified his inclinations to disherish him and in order thereto having disponed his Estate in Favours of John Standsfield his second Son The said Philip did thereupon conceive Harbour and Intertain ane Hellish Malice and Prejudice against the said Sir Iames Standsfield his Father and most barbarously did declare threaten and vow at several times that he would cut his Throat And particularly upon the first second third or remanent dayes of the moneths of the year 1680. within the house of Iames Smith in Nungate of Haddingtouw And upon the first second or third or one or other of the days of the Moneths of January February March and remnant moneths of the year 1687. within the house of Inmes Baikbie Fermorer in New-milns and within his Fathers own house of New-milnes and in the house of William Scot there And upon the first second third or one or other of the dayes of the moneths of January February March and remanent moneths of the year of God 1683. 1684. and 1685 years when he was both in Brussils and Breda and several other places both in Holland and Flanders and in prisons within which he was detained in the city of London and Southwark or upon one or other of the days of one or other of the Moneths of the saids years or either of them most wickedly unnaturally and bitterly rail upon abuse and curse the said Sir James Standsfield his natural and kindly Parent And being transported with rage and malice he did contrary to the light and tyes of nature not once but often and frequently curse his father by bidding and praying the Devil to take him and the devil rive him Goddamn him and swear if he had a sword he would run it through him and if ever he came to Scotland he would be avenged
but from clear positive testimonies It is answered that the Eex vlt Cod de probationibus clearly states that probation is either Testibus tabulis instrumentis documentis indiciis And Mattheus states a particular title upon this single question Cap. 6. titulo 15. de probationilus does most positively determin that Crimes are to be proven Documentis Argumentis Indiciis And it is most evident that the probation which arises from the Nature of the thing which is incapable to be soffisticat or imposed upon as witnesses may be that kind of probation is the surest because it is always the same admits no variation It 's true and it is acknowledged that Argumenta Indicia must be clara evidentia and probation being Quod facit fidem Judici every mans experience tells him that the complication and conjunction of so many evident qualifications though none of them per se were sufficient yet being all of them Joyned it induces a greater certaintie than two Witnesses positively deponing upon the Fact. And therefor the evidence of the probation belongs to the Inquest and the relevancy that these Articles conjoyn'd or any part of them are sufficient to infer the Crime belongs to the Judge As to the Presumptions offered for the exculpation of the Pannal they are not at all relevant for though so horrid a Murder is not to be presumed against Nature yet being proved or so strongly evinced it does but conclude the Pannal's greater Guilt and suppose that Sir James Standsfield was formerly Melancholy and had been Frantick in the year 1679 yet it is known he recovered his Health and was of a compos'd sedat temper of Mind for many years thereafter and was as capable and diligent about his Affairs these many years as he had been formerly and was so considered and employed by the wisest men in the Kingdom and at the time of his Death there was no Sickness or returning of Frenzie upon him but all that Week he had composedly done his Affairs and did upon the Saturday when he went Home discourse rationally upon all the Subjects that occurred But it being so clearly documented proven that he was Strangled it is a ridiculous conceit and there remains no possibility that after he was Strangled he walked out and drowned himself And as to that Presumption that the Pannal rendered himself Prisoner it was indeed suitable to the rest of his Impudence and he did not render himself till after the Order to apprehend him was intimate to him when he could not Escape and when he was under Observation and there did not want Project in fixing upon this Impudence when he could not Escape as an qualification of Innocence that he would render Sir David Thoirs without repetition of the Replyes made by His Majesties Advocat doth make his Duply to the foresaids Replyes and every member thereof in order as follows viz. TO the First Anent the Treasonable Words the Pannals Procurators oppon their former Answers and the Act of Parliament whereupon that part of the Ditty is founded being only in order to such Treasonable Speeches advisedly spoken The constant tract of the Pannal's life in drinking his Majesties good Health at all occasions and offering to adventure his life in His Service in the last Rebellion sufficiently demonstrats that if any such Expression did escape the Pannal as it is denyed the same was only rash and unadvised and not deliberate and advised as is required by the Act of Parliament to infer the pains libelled and the qualifications added by my Lord Advocat bearing that the Pannal did conjure the persons then present to Secrecy demonstrats that the Pannal was ex incontinenti heartily sorrowful and penitent for the same And it 's clear by that excellent Law of the Cod. the words whereof are Si quis Imperatori maledixerit si ex insania miserando si ex temeritate petulantia temnenda si ex anime injuriandi ad principem remittendum which demonstrats that by the Common Law such an rash and unadvised Expression was never to be laid hold on to infer a capital Punishment where the person alledged expresser thereof was not otherways suspect of Disloyalty 2o. Repeats the Defence as to Crimes alledged committed abroad and it were against reason and equity that persons for one and the self-same Crime should be subject to the punishments of several Jurisdictions where the punishment of the saids Crimes are different But seing my Lord Advocat declares he hath no Probation for these alledged Orimes but Certificats and Affidavits they cannot be obtruded as a part of the Libel because the saids pretended Certificats and Affidavits are neither insert in the Libel or given out to the Pannal and all Crimes are to be proven testibus non testimoniis and if the custom of Affidavits should be introduced in this Court all Pannals how innocent so ever might be murdered by being deprived of their unanswerable Objections against the Granters of these Affidavits c. and therefore they cannot be sustained as a qualification to load the Pannal or make the Inquest have a prejudicat opinion of him 3o. As to my Lord Advocat's Reply anent the Act of Indemnity the former Defence and Act of Indemnity is opponed and bears expresly Murders Robberies Slaughters and all other Crimes committed against His Majesty and Laws of the Kingdom either by Word Writ or Deed which undoubtedly excludes all alledged Crimes said done or committed by the Pannal before that time and this favour gratia principis is to be ampliat and extended and not restricted and all His Majesties Judges and Officers of State are commanded to sustain the same according to the most ample Interpretations for the Pannal that the Words will allow 4o. The pretence that the Pannal was of the quality of a Burger or a Baron is most irrelevant the Pannal having no visible Fortune at the time and as my Lord Advocat himself acknowledgeth no expectation of any Fortune whatsoever so that if Barons Burgars Liferenters Wodsetters and likewise these who have nothing in possession at the time shall be secluded from the benefite of that Indemnity it is scarce intelligible to whom and for what cause the same was granted 3o. And as to that part of the Reply bearing that this was a privat Injury and so not comprehended within the Act of Indemnity the former Defence is opponed and all pretence of privat Injury was taken away by dissimulation or death As to the pretence that the Reconciliation can be no defence against the Libel as to vindict a publica and that the Letter whereupon the Defence is founded doth not import a Dissimulation It is Duplyed That the Act of Parliament being an Comminatory Law and principally intended in favours of Parents the same was never yet made use of and it were very hard to make use of the same to deprive a Parent of his Child for any rash or passionate Expression
that all former differences if any were betwixt them were then taken away As to the third part of the Indytement in relation to the several Acts and Qualifications insisted upon To inferr that the Defender had accession to his Fathers death It is answered primo That the Indytement in so far as it is founded upon the 51. Act Par 11. K. Ja 6 in relation to the murder under trust which is declared to be punishable as Treason Is not relevant Because the Father cannot in Law be said to be under trust and assurance of the son and that Act of Parliament takes only place in Cases where a man is invited to his neighbours House or of an Traveller being in an Inn and that he be murdered under that trust the same Act of Parliament being founded on in the case of Swinton who killed his Wife in the year 1666. the Inditement was restricted to simple Slaughter And in the case of Master Iames Oliphant in the year 1665 The Lords of the Session found that a Sons killing his Mother was not Murder under trust and so he was not punishable by that Act of Parliament as guilty of the Crime of Treason 2º The Acts and qualifications condescended on to infer the Defenders Accession to his Fathers death are but very remote and uncertain for as to that expression That the defender is alledged to have threatned his Fathers death It is the opinion of all Lawers who have written upon the subject that that is but a very remot Presumption And as Carpzovius expresses it Part 3. Quast 121. Num 51. quod est indicium admodum periculosum quippe cum homines saepe nil minus faciant quam quod minasxequantur et ira cundia agitatus minas de crimine perpetrando saepe jactet ipso tamen animo fervore paulo post disscusse cohibeat manus et abstineat a facinore illo quod forsan ab alio postea committitur And Paris de puteo gives an instance in his Tractat de syndicatu upon the word Tortura and Boverius That a Woman seeing a Person going by her Window against whom she had a Prejudice and that another having a hatred against her and hearing that she had threatned to cut off that Persons Leggs the party that did hear the Woman use the threatning did the thing upon which the Woman that did threaten being challenged and put to the Torure did confess Yet thereafter it was found that she was altogether innocent and that another had done it 3o. As to the pretended Acts of the Defenders alledged Pursuing and Invading his Father and fireing Pistols at him at Lothian-burn and Culterallors in Annis 1683 and 1684. As it is most groundless so if need were it could be made appear by the Persons who were in company with him at that time That the Defender and his Father were then in intire freindship all alongst the journey and he was so far from making any such attempt That it can be made appear that the Defender did behave himself towards his Father with all the submission and respect that became a Son to have to his Father But as to these and all other Acts preceeding March 1685 the Defender is secured by the Act of Indemnity and as the Defender cannot be pursued for any Crime preceeding that time neither in Judgement nor out with the same they in effect being no Crimes being taken away by the Act of Indemnity they cannot be so much as made use of as qualifications or aggravations to infer another Crime posterior thereto 4o. As to that pretended qualification that when the Defender did touch his Fathers dead body after it was taken out of the grave the Corps did bleed It is answered that this is but a superstitious observation without any ground either in Law or Reason And Carpzovius relates part 3. quest 122. Num 31. That several Persons upon that ground had been unjustly challenged and that he in his own experience had seen a dead body bleed in presence of a person who was not guilty as also that he has seen the body not bleed in presence of the Person that was guilty And Mattheus de Criminibus is of the same opinion Tit 16. de Quaestionibus Num 12 de Sanguine porro de Cadavere profluente quod dicitur id de plurimis experimentis comprobetur tamen cum experimenta falsa sint ratio vero idonea nulla reddi possit non putaverim indicium ad torturam sufficiens esse non enim sapientis Judicis est incerto experimento credere quod certa ratione dirimendum est And the truth is the occasion of the dead bodies bleeding was that the Chirurgions that came out to visit the body did make an Incision about the neck which might be the occasion of the bleeding and also the very moving of the dead body when it was taken out of the grave and out of the Coffin might occasion the bleeding especially seing the body did not bleed for some time after which certainly was made by the motion and by the incision As also as a further evidence that it could not be the Defenders touching the body the Chirurgions did likeways touch the Body as well as he and several others present so that the bleeding could no more be ascribed to his touching than the touching of the other persons present 5o. As to the other Articles Lybel'd Relating to the pretended Murder They are but meer stories and the truth is and it is offered to be proven That the Defender having gone to his Chamber and Bed the night before his Father's death He did not stir out of his Bed nor out of the Roum till the next morning that John Robertson his Fathers Servant came to his Chamber where he was in Bed and told him that he had been in his Master's roum and that he could not find him Upon which the Defender immediatly arose and put on his cloaths and went out to see where his Father was And shortly after word being brought him by some Persons in the Town that they did see his Father's Body lying in the Water and it being generally concluded by all that he had thrown himself in the Water and the body being taken out and laid in a Low-Roum It was thought fit by all the neighbours about that he should be buried the next day 6o. The particulars Lybel'd to infer the Defenders accession to his Fathers Death being but remot and uncertain conjectures It is a certain principle in Law that ex praesumptionibus et conjecturis nemo criminaliter condemnari potest especially as to a Capital punishment As is clear from the common Law Leg 5. digest de paenis Jed nec de supplicationibus debere aliquem damnare satius enim est Impunitum relinqui facinus nocentis quam Innocentem damnare And which is the opinion of all Lawers writing upon the Subject As Bartol upon the foresaid Law and Farin part 3. oper Crim. Quaest.
Parliament 20. Act. 1. Par. K Ch 2d bears expresly That the Cursers of Parents shall be put to death without mercy So that a General Act of Indemnity or Mercy without a special Remission could not include this Crime which as the Act of Parliament bears is expresly against Nature and the Law of God And by the opinion of all Lawers General Indemnities do not extend to all Crimes but these Crimes which are called in Law crimina excepta are never intended to be Indemnified nor such Crimes where the Interest of Parties is more than the Interest of publick Justice and in all former and General Indemnities Murther and other Crimes are particularly excepted with a general Clause excepting all such Crimes as use not to be comprehended in general Acts of Indemnity So that this so horrid a Crime wherein the Parent was more interested than the publict neither was nor could be comprehended under a general Indemnity As also that restricted limited Indemnity bears expresly an exoneration for all Persons below the degree and quality of an Heretor Wodsetter or Burgess And whether the Pannal were an Heretor or not yet it cannot be said that he is below the degree and quality of a Wodsetter or Burgess And therefore the Act of Indemnity is of no use to him Whereas it is answered That Sir James was reconciled with the Pannal and wrote kind Letters to him whereby dissimulando former Injuries were taken off It is Replyed That Injuries are only taken off dissimulando which are not atrocious but never specifick Crimes wherein the Discharge or express Renunciation of the Party Injured cannot liberat a vindicta publica the punishment of Crimes especially in Capital Punishments belonging to the Magistrat and the privat Party has not the sole Interest nor can dispense with Capital Punishments But the Letter forgiveness or dissimulation of the injury founded upon does not in the least infer the Parties Father And a ordering his son to call in for Chamberlain Accompts without impowering him to Discharge the same is not the least evidence of confidence in his Son much less a Remitting of his Crime And as to the second Article in relation to the Cursing it is positively offered to be proven not in single Acts but by a tract and habit of cursing his Father in the most abominable Termes imaginable As to the third Article in Relation to the Murder that this matter may be clear ut constet de corpore delicti these undoubted Qualifications are offered to instruct that Sir James Standsfield was murdered and strangled and that he did not drown himself 1o. It is offered to be proven by the Minister that was that night in the House that long after ten a clock at night and that Sir James had retired to the Chamber where he lay alone the Minister heard the confused Whispers Murmurs and Noise of several persons both Men and Women which afrighted him and that he heard the noise go away by the back-side of the house which leads directly to that Pool where Sir James his Body was thrown in the Water 2o. Sir James's Body was found swimming above the water and albeit it appeared by the Ice upon the top of his cloaths that he had been several hours in the water yet there had no water entred into his Body which is a demonstration that he was dead before he was thrown in the water for a Person thrown alive into water drawing in of Air and Respiration being in the water he must draw in water and if the Person drawes in as much water as fills his concavitie he becomes heavy having so much more weight of water and therefore he sinks But if a person be thrown dead into the water when the Clap of his Throat is shut the water cannot enter and there being so much emptiness the Body is light and supported by more parts of water than the gravity of the Body can depress 3o. There being several Chyrurgions and others sent out by order from Authority to take up and inspect the body To see whether there was any evidence of Strangling or other Symptoms of Murder upon the Body It did appear to all these Persons who did depone before a Committee of the Privy Council That from the one jugular vein to the other round the Neck there was a tumour of congealed black bruised Blood three inches broad and that there was congealed Blood in the Throat upon which matter of Fact the Colledge of Physicians have given an unanimous Testimony in writing that Sir James Standsfield was Strangled and not Drowned And the Deaconry of the Chirurgions being conveened have emitted a Declaration in Writing concurring and agreeing with the Report of the Physicians So that it is as clear as the Light of Day that Sir Jame's Standsfield was murdered 2o. For the Qualifications that the Pannal was the Murderer or accessory to the Murder of his Father these clear evidences are offered which makes his Crime without possibility to be palliat or denyed 1o. It is notorious that the Pannal is a most debauched vitious pernicious Person and has been Prisoner or condemned to dy in all the Places or Societies he ever haunted He entred a souldier in the Scots Regiment where he was condemned to die at Treves but made his escape and his being in Prison in the Marshal Sea prisons Orleance and Brussels which makes the Circuit of his Travels are not denyed and his profligat life and constant drunkenness since he came to the Prison is offered to be proven by the Keepers and as it is unnecessar to trace all his Debauches so there is one material Point offered to be proven That upon the least provocation either by Man or Woman the Pannal used to swear by horrid Oaths that he would take their lives though he should die in the Grass mercat for it 3º Sir James Standsfield for these Debaucheries having disherished the Pannal and disponed his Estate to his second Son It is positively offered to be proven That in the Nun-gate of Haddingtoun in James Smiths house the Pannal being told that his Father would disherish him he with horrible Oaths vowed to cut his Fathers throat And whereas it is answered to this qualification That the Saying that a Son would cut a Fathers throat is but a remot circumstance It is Replyed That the Law and all Lawers do agree That Minae praecedentes damnum sequutum is a most pregnant qualification of that party's Crime especially where the Threats were to cut a Fathers throat which of it self was so horrid and unnatural a villany that it cannot be doubted he who durst Vow it wanted but an occasion to act it And it is acknowledged that though this be the clearest presumption yet per se it is not full probation For though the Son had both vowed it and resolved it yet by an accident he might have been prevented But the presumption at least layes the burden that except the
it was when he was Drunk and after Cups and is so presumed especially it being as it is acknowledged by the Libel in a Drunken company 2o. As to the Act of Indemnity It is extended to all Crimes except the Arch-bishop's Murder and exceptio firmat regulam c. And the Act bears not that Clause excepting other Crimes which uses to be excepted 3o. As to the qualifications condescended on in my Lord Advocat's answer either they are Libel'd and so oppones the former answer And if they be not Libel'd they cannot be considered as qualifications 4o. Whereas it is alledged That the Pannal was in use to threaten to cut Throats when in passion the Argument is retorted For though he threatned nothing followed And so his Threatnings were but verba jactantia 5º As to the citation out of Mattheus that parties may be punished upon presumptions It is answered That the Case there stated is where the Person who commited the Slaughter was apprehended in the place where it was committed That he was all bloody and with a bloody Sword answerable to the Wound and that he became pale when he was apprehended and that he made no answer but in terrour fled away which are such Acts as do evidently make appear the Slaughter and could admit of no other construction but that cannot be pretended in this Case where all the Presumptions are remote and extrinsick and even in the Case instanced by Mattheus and others of that Nature they are only to take effect in order to an Arbitrary but not a capital Punishment which is the opinion of all Lawers who ever wrote upon the subject and particularly Muscard de prob conclus 123. Num. 30. and 31. where the Question is stated an plures praesumptiones conjunguntur in order to inferr a capital punishment And he concludes in the negative as a general conclusion by all Lawers but only to infer an arbitrary Punishment As to bleeding of the Body It is offered to be proven that the Pannal touched his Father's Body before the Incision and it did not bleed THe Lords Justice General and Commissioners of Justiciary Having considered the Libel pursued by His Majestie 's Advocat against Philip Standsfield the Pannal And the first part thereof anent the Treason libel'd they find the samen as it is lybel'd relevant to inferr the pain of Treason And as to the Pannal's cursing of his Father mentioned in the Inditement They find these Expressions or either of them viz. the Devil take him the Devil rive him God damn him relevant to inferr the pain of Death And repells the Defence founded upon the Act of Indemnity and finds the Pannal is not under or below the quality therein specified As to the Pannal's murthering of his Father mentioned in the Inditement they found the Libel as it is lybeled and qualified relevant to inferr the pain of Death and remits the same with the qualifications lybel'd to the knowledge of the Assise and allowes Witnesses to be led for the Pannal's proving his Father to have been Melancholy the day before the committing of the Murder and remits to the Assise to consider the Import thereof if it be proven and repells the whole other Defences proponed for the Pannal The Lords continues the Dyet against the said Philip Standsfield till to morrow at two of the Clock in the Afternoon And ordains him to be carried back to Prison and the Witnesses and Assisers to attend ilk Person under the pain of 200 Merks Edinburgh the seventh of February 1688. Philip Standsfield Prisoner being this day entered on Pannal dilated indyted and accused for the Treasonable drinking of the King's confusion cursing his Father and for the cruel and unnatural murdering of him in manner mentioned in his Ditty The Interloquitor above-written was this day read again in presence of the Pannal and the Assisers afternamed viz. William Bailly of Lamingtoun James Glen Stationer Alexander Reid elder Goldsmith Charles Charters Merchand David Hepburn of Humby Edward Gillespy Merchand Robert Sandilands Merchand Samuel Moncrief Merchand Thomas Lendall Merchand James Cleiland Merchand Hephurn of Beinstoun William Paton Merchand George Braithwood Stabler Iohn Marshal Merchand Alexander Edgar Chirurgion in Haddingtoun The Assise lawfully sworn no Objection of the Law in the contrary His Majesties Advocat for Probation adduced the Witnesses after deponing viz. Iohn Robertson late Servitor to Sir James Standsfield of Newmilns aged twenty four years unmarried purged of malice prejudice hatred ill will and partial Counsel and solemnly sworn Depones a little time before harvest last the Pannal being in the Kitchin of Newmilns in the deceast Sir James Standsfield's house where the Deponent was likewise present he saw the Pannal Philip Standsfield take a Cup of Ale and heard him say There is the Pope's confusion the Antichrists the Chancelours and the Kings confusion and put the Cup to his Head and drink a little and then gave it to Samuel Spofforth and commanded him to drink it and made him drink it on his knees depones that there were likewise besides Samuel Spofforth Jeremy Smith Agnes Bruce and Elspeth Jameson and depones that Philip Standsfield the Pannal was not drunk at the time Depones that at the naming of the several Confusions above-mentioned he still drank a little of the cup And this is the Truth as he shal answer to God The Deponent further depones that he said to the Pannal after the drinking of the saids Confusions that it was Treason and he answered ye dog what are you concerned ye do not understand to whom ye speak Sic subscribitur Iohn Robertson Agnes Bruce Servant to the deceast Sir Iames Standsfield aged twenty four years unmarried purged and sworn Depones That a little before Harvest last she being in the Kitchin of New-milns with Philip Standsfield the Pannal she saw him take a Cup of Ale and drink the confusion of the Pope and the King and heard him bid Samuel Spofforth sit down on his Knees and drink the same which accordingly he did after this the Deponent went up Stairs and knows no more what past at that time but heard they drank more confusions Depones that about a week after it being talked in the house that he had drunk the confusions aforesaid he said to the Deponent God damn him if he knew who divulged it he would be their Death And this is the Truth as she shal answer to God depones she cannot write Sic subscribitur Linlithgow Samuel Spofforth late Servitor to Sir James Standsfield of New-milns aged 19 years unmarried purged and sworn Depones that a little before Harvest last the Deponent was in the Kitchin of New-milns with Philip Standsfield the Pannal where he heard himdrink a confusion to the Pope Antichrist and the King and to the Devil and the Pannal prest the Deponent to drink the same confusions upon his knees Depones Iohn Robertson Agnes Bruce Jeremy Smith and Elspeth Jameson were all likewise present at
knows not if Philip caused do it and that the Body from that was brought to a Cellar within the Closs where there was very little light Depones that she did not see any water come out of his Mouth and that when the Deponent lifted up the Linen-sheet which was over him in the Cellar some of them caused let it down again for it was not fit to let the Body be seen Depones that Ianet Iohnstown was present with the Body in the Cellar with the rest and though it was known that neither Sir James nor his Lady would look upon her for a good time before nor was she openly seen about the House yet that morning she went to the Ladies Chamber as soon as the Body was taken out and the Deponent was present and saw her come in and well enough taken with Depones she heard Philip after his Fathers Death Greet and Cry but saw no Tears Depones immediatly after his Fathers Body was found he would have forced his Fathers Chamber-door it being shut but the Key being gotten it was opened and he entred in and first took his Fathers Gold and Money out of his pocket and then got the Keys and searched the Cabinet and that within an hour after his Father was brought from the water he got the Buckles of his Father's shoes and put them in his Depones that on the Munday after Sir James's Death the Lady and Janet Johnstown having quarrelled together about some remains of the Holland of the woonding-sheet Philip came down out of his own Chamber and the Deponent heard him say to Janes Johnstoun hold your peace when I command you for he would reward her vvell for the kindness she had done to him at that Time Depones that when the order came from Edinburgh to raise the Corps again the Deponent did meet George Thomson the Taylor and perceived him shaking and trembling and asked him what troubled him and that his Answer was he heard the blackest Newes that ever he heard in his Life for Sir James's Body was to be raised again and said he would sew no more in the House of New-milns for the World and carried the Mournings to his own House Depones she knows nothing of false Keys made use of about the House only she heard the Lady say that there vvere Depones Philip had no lockfast place in the house except a little Coffer and that it once being opened the Deponent did see several Keys within it that he offered once the Key of one of the Roums to the Deponent but the Deponent took it not because she had the ordinar Key of the Roum Depones that Philip was in use to ly alone but that after his Fathers Death he would not ly in a Roum alone at Newmilns and that he declared to the Deponent that he was afraid to be alone in a Roum either Night or Day and that he sleept not the Night after his Father died and that he should not go into the Roum where his Father lay if once he had the Cabinet out of it Depones That a short time before Sir James died the Lady having fallen in a Swond and the Deponent having told Philip of it Philip came to his Mothers Chamber and that his Mother told him then that he was like in a short time to lose his Mother and that he answered in the Deponents hearing that his Father should be dead first and Depones that some few dayes thereafter in his Mothers Chamber again and in the Deponents hearing he renewed the same Words with an Oath Further Depones that two Nights after Sir James's Death the Lady told to the Deponent that something then came in her Mind which she had heard to wit that Philip before he went to London when he was in his Pomp having heard that Sir James was to give his Estate to his second Son in the House of James Smith in the Nungate had vowed to kill his Brother and the like or little less to his Father and that thereafter when they were coming in to Edinburgh the Lady renewed again to the Deponent the same words and added what if they should put her Bairn in Prison And this is the Truth as she shal answer to God. Depones she cannot write Sic subscribitur Linlithgow Iohn Shand sometimes Servitor to Sir James Standsfield aged 43 years unmarried purged and sworn Depones that a litle after Philip Standsfield the Pannals Marriage the Pannal and the Deponent being in James Smiths House in Nungate of Haddingtoun the Pannal did expostulat with the Deponent that his Father dealt too narrowly with him he being then married and the Deponent told the Pannal that his Father was in straits and exhorted him to be dutiful to his Father thereafter the Pannal said if I knew my Father would give his Estate to my Brother Iohn I would cut his Throat and the Land-lord of the House being by and present and surprized cryed out God preserve me what means the Man the Land-lord understanding by the word his his Father And though the Deponent took the Expression in the same sense as Iames Smith did yet the Deponent endeavoured to excuse it by saying it was not his Father that he meaned but his Brother or his man Donald and the Pannal being present said nothing for clearing of the Expression whereupon the Deponent went away and left the Pannal and could not endure to stay longer in his Company Depones the night before Sir James Death being the Friday the Deponent was with Sir James in his Chamber in Edinburgh where the Defunct was reading a Sermon-book and appeared to be sad and said to the Deponent I have no comfort in my Wife and Family And this is the Truth as he shal answer to God Sic subscribitur Iohn Shand. Mr. Roderick Mckenzie Advocat Being solemnly Sworn and Purged depones That about eight dayes before Sir James Standsfield's Death The Deponent and he having met in the Parliament Closs the Defunct invited him to take his morning Draught And when they were gone to Mr Sheil's house the Deponent perceiving him to be in some concern the Deponent asked him what troubled him the Defunct answered that he had no satisfaction at Home whereupon the Deponent said that People reported that he was partly the occasion of it having disherished his Son the Pannal and acquainted him therewith And the Defunct answered ye do not know my Son for he is the greatest Debauch in the Earth and that which troubles me most is that he twice attempted my own Person And this is the truth as he shall anser to God. sic subscribitur Rod. Mckenzie Archibald Dumbar Merchant in Edinburgh aged 26 years Married purged and Sworn Depones that the Deponent having met with the deceast Sir James Standsfield at Culter But he does not remember positively the time but it was either in the year of this Kings Parliament or the Harvest before and Sir James and the
86. and the Lawers by him there cited And Muscard de prob Conclus 223. layes it down as a certain conclusion quod Argumenta quantumcunque urgentissima etiamsi essent talia quae mentem indicantis adeo coactarent quod aliudcredere non possit non tamen sufficerent ad condemnationem paenae corporalis sed duntaxat pecuniariae 7o. The presumptions and qualifications Lybel'd cannot be sustained even to infer an Arbitrary punishment Because they may and are taken off by other presumptions That either the Father was not murdered but that in a Frainzie or melancholy fit he had thrown himself in the Water Or at least if he was Murdered that the Defender had no accession thereto and the presumptions condescended upon in behalf of the Defender to eleid the presumptions contained in the Inditement are these That it is notourlie known That his Father was subject to melancholy fits and that in the year 1679 the time of Bothwell-bridge It is offered to be proven that he was in a fit of distraction And at another time in his house at the Netherbow he was going to throw himself out over the Window If one Thomas Lend all had not come in at the time pulled him back by the Leggs when his body was half out at the Window And some few dayes before he went out of Edinburgh last he came to George Stirling Chirurgion and desired him to draw blood of him for a distemper in his head which he refused unless he had advice from a Physician As also a day or two before he went out of the Town he was seen reading upon the Book of Burtouns Melancholy And that day when he went out of the Town in company of Mr. Bell the Minister Aiton Merchant in Haddingtoun they observed him to be melancholy disordered and more troubled than ordinary Or if it could be made appear that the Father was murdered Yet it cannot be presumed that the Defender had any accession thereto or that he would have commited such an Act against the very ties and light of nature As also it appears by the foresaid letter written to the Defender by his Father that they were in intire Friendship As also when the furmise went abroad that his Father had been murdered if he had been conscious to himself that he had any accession thereto he would have certainly fled the Countrey and gone away But he was so far from that that upon the first rumor of it he came presently in to Edinburgb and several dayes thereafter It being told him that he was suspected to have accession to his Fathers Death he came voluntarly and entered himself in Prison that he might undergo the strictest and severest Tryal Which alone is fussicient if it were no more to take off all the presumptions Lybel'd and to convince the World of the Defenders innocence And it being a Principle in Law That una praesumptio tollit aliam The presumptions adduced for the Defender ought to be preponderat Mascard Conclus 1205. is positive That presumptiones quae stant pro reis praevalent As also that Praesumptio affectionis naturalis pravalet contrariis praesumptionibus So that upon both these considerations the presumptions alledged for the Defender ought to be sustained to take away the presumptions Lybel'd and to free him from the Crime His Majesties Advocat answers That the lybel consists of three Articles primo Treason by the Pannal's drinking the King's confusion and by the Murder under trust 2o. The cursing of a Parent 3o. The Qualifications inferring the Pannal's accession to the murder of his Father As to the first it cannot be denyed but that the drinking or wishing Confusion to his Majesty is the highest Act of contempt malice and disdain to his Royal person and as the Relevancy of this Article is not expresly contraverted so the atrocity of the Act and the forcing others to do the same upon the common Grounds of Law does clearly infer Treason and it cannot be expected that such extravagant words should either be exprest or particularly provided against by any Law in express terms But the nature of the words in express terms of our Law discharging all Speeches to the disdain of His Majesty the contempt of His Authority do clearly and naturally comprehend the words libeled and by the common Law ad leg jul Maj. crimen laesae Majestatis ad exemplum legis scriptae est vindicandum And whereas it is pretended that these words were inadvertantly said and that it appears by the tract of the Pannal's life and his readinesse to engage in His Majesties service that the words could not be deliberat and malitious It is Replyed That it is offered to be proven that the drinking Consusion to the King was openly and plainly proposed And that the Pannal did deliberately send out for Ale to drink certain healths that this health to the King's confusion was the first or second that it was no lapse or mistake in the expression But that he forced others to pledge drink that same Health And the malice and disloyalty is evident by the healths subsequent viz. Antichrists c. and it is not at all relevant after the reiterat deliberat expressing of these words that he had retracted or drank the Kings health for a crime once committed is not retracted or taken off by such inconsistent unconsequential Speeches But to shew the sense the Pannal had of the Importance of his own words the Pannal being informed that some of the persons present had divulged his having drunk the King's Confusion the Pannal did conjure them to secrecie and did menace the Witnesses with a great kane that he would beat and brain them if ever they told it Whereas it is answered in general as to all Crimes committed without the Kingdom that they cannot be cognosced or punished here It is Replyed That as to all Crimes against Nature or the Law of Nations as every party is Competent to be an accuser so every Judicature is Competent and therefore as to the Crimes of Treason or cursing of Parents wherever committed they are punishable by the Justices But because in Relation to the Crimes committed abroad there is no positive probation but Declarations and Testimonies Therefore as to these Crimes His Majesties Advocat does not insist on them as distinct Crimes per se but as Qualifications Documents and Evidences of the Habitual Debauchry and unnatural Malice exprest by the Pannal against his Father for a Tract of many years Whereas it is answered That as to all Crimes preceeding 1685. They are taken off by the Indemnity It is Replyed the Indemnity 1685. is no general Indemnity neither as to Persons nor Crimes but particular Crimes are Remitted and particularly enumerat without any general clause And as cursing of Parents is not particularly enumerat so by the Nature of that Crime it cannot be included or comprehended in any general Indemnity And the words of the Act of