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
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
the Body it did appear that his said Father was cruelly strangled and murdered and not drowned and that he had been cast in the water of purpose to conceal the same And when his Fathers dead body was sighted and inspected by Chirurgians and the clear and evident signs of the murder had appeared the Body was sewed up and most carefully cleaned and his nearest Relations and Friends were desired to lift up his Body to the Coffin And accordingly Iames Row Merchand who was in Edinburgh the time of the Murder having lifted the Left side of Sir Iames his Head and Shoulder and the said Philip the Right side his Fathers Body though carefully cleaned as said is so as the least Blood was not on it did according to God's usual Method of discovering Murders blood afresh upon him and desiled all his hands which struck him with such a terrour that he immediately let his Fathers Head and Body fall with Violence and fled from the Body and in consternation and confusion cryed Lord have mercy upon me and bowed himself down over a seat in the Church where the Corps were inspected wiping his Fathers innocent blood off his own murdering Hands upon his Cloathes By all which it is manifest that he did most traitorously express his hatred and malice to his Majesties Sacred Person by wishing and drinking to his confusion and causing others do the same And likewise that he did not only unnaturally curse invade attempt to assassinate or beat his said Father but under trust and assurance barbarously and treasonably did strangle kill and murder him in manner forsaid and is actor art and part of the forsaids Crimes or one or other of them which being found by an Assyse he ought to be punished for the treasonable Crimes above-specified with fore-faulture of Life Land and Goods and for the other Crimes above-mentioned Capitally and with the pains of Death and Confiscation of Moveables to the Terror and Example of others to commit the like hereafter Pursuers Sir Iohn Dalrymple younger of Stair His Majesties Advocat Sir George Mckenzie Advocat Procurators in Defence Sir David Thoirs Sir Patrick Hume Mr. William Moniepenny Mr. William Dundass The Pannal's Procurators produced two Warrands of Privy Council Commanding them to compeir and plead the Pannals Defence SIr Patrick Hume for the Pannal always denying the Inditement and whole members and qualifications thereof alleadges That as to the first part of the Inditement in relation to the drinking an Health to the Confusion of his Sacred Majesty as it is most calumnious so it is not to be supposed that any man in his right wits would have been guilty of such a thing And it is positively offered to be proven that at or about the time lybel'd and several times before and after the Defender did most heartily and chearfully in several Companies drink the King's Health and upon all occasions he was ready to testifie his Loyalty to the King and particularly the time of the Invasion by the late Duke of Munmouth in England where he did enter himself voluntarly a Souldier in the Earl of Dumbarton's Regiment and continued in the King's Army till the Rebels were defeat and the voluntiers dismissed As to the second part of the Libel in relation to the pannal his alledged committing and being guilty of and accessory to many notour Crimes abroad and being detained Prisoner in London Antworp Orleance c. and that he vented and entertained malice against his Father and that he declared many times that he would cut his Throat and that he did rail against and curse his Father by many Imprecations It is answered primo That it is absolutely deny'd that the Pannal was guilty of or accessory to any notorious Crime abroad or put in Prison upon that account nor is there so much as any Crime condescended upon 2o. The Defender could not conceive any prejudice against his Father upon the account of Disponing his Estate to his second Son for he knew nothing thereof till after his Fathers decease that one Alexander Ainstie told him that his Father made such a Disposition 3o. As to the pretended expressions that the Defender should have had of Railing Cursing and using Imprecations against his Father in so far as the samen are lybel'd to have been done abroad in England Holland or other places he cannot be lyable to the punishment inflicted by the Law of this Kingdom because when a party commits a Crime in another Nation he is only to be punished according to the Law of the place where the Crime was committed and not according to the Law of the Nation where he is a subject or has his dwelling As is clear by the common Law Authentick God ubi de criminibus agi oportet Qua in provincia quis delinquit aut in qua pecuniarum aut criminum reus sit sive de terra sive de terminis sive de possessione sive de proprietate sive de hypotheca aut de alia qualibet occasione vel de qualibet re fuerit reus illic jure subjaceat quod jus est perpetuum In that Nation where any Person commits a Crime or is lyable to answer upon any account whatsoever he is to be judged by the Law of that place which is established as a perpetual Law and Mattheus de Criminibus in his title de poenis is express of the same opinion 4o. As to all those pretended expressions of railing cursing and threatning lybel'd that were before March 1685. The Defender is secured by the Act of Indemnity by which all Crimes are indemnified preceeding that time against the Government and Lawes 5o. As to any pretended Expressions of falling and cursing since that time they being but injuries alledged done to the Father he might and did remit the samen in so far he did not challenge and pursue the same in his own time and this is clear from the common Law Carpzov part 2. Quaest 65. Actio autem injuriarum nec active nec passive in Haeredes transit etiamsi mortuus illatas injurias ignoraverit Institut lib. 4. tit 12. part 1. de perpetuis temporalibus action leg 10. par 2. ff si quis cautionibus in judicio sisten And leg 13. ff de injuriis injuriarum actio neque haeredi neque in haeredem datur As also it is a principle in Law that dissimulatione tollitur injuria and if it could be made appear that the Pannal had any such Expressions the Father did dissimulat and pass from the same in so far as by a Letter dated in June last written by the Father to the pannal he orders him to take in his Chamberlain Accompts of the Rents of his Lands and of any money he had received from the Tennents or for the Corns sold and that he expects he will do the same exactly and recommends to him to be careful of all his Affairs and subscribes himself to be his Loving Father By which it is evident