Procedure: petition, 31 December 1696, Edinburgh

Att Edinburgh the sixteenth day of Jullie J^aj vj^c nyntye six years

A1696/7/28

A1696/7/28¹

Act

Act John Simmison

Anent the petitione given in to the Lords of his Majesties privie Councill by John Simmison in Law in the shire of Dumbartoune Sheuing That wher the petitioners son William Simmison Having fallen in furnication with one Mary Mcalaster Ther uas a Child procreat betuixt them And the said Marie therafter Keeped the said child for the space of halfe a year But then pretending to be in want Came with the child to the petitioners house and uould needs Lay doun the Child at his door and Leave it upon him which the petitioner refuised as he had reasone And the woman being obstinat and clamarous and persisting under the Cloud of night (it being about the end of November Last) to Leave the Child at the petitioners door He uith his son James and some servants were necessitat to Lift up the woman by the armes and to Cause take up her Child and Carry them both about a quarter of a mile to the toune of Lawmuir wher Having Led her all the way They left her And she having about tuo days thereafter been Carried as the petitioner is Informed, upon a slyde to a place called Bajaphray a Long mile distant she ther within tuo or three days therafter dyed wherupon McCaulay of Ardincaple Baillie of the Regality of Lennox being Informed by malice and Calumny against the petitioner Did Cause apprehend and Imprison him in the Tolbooth of Dumbartoune wher he receaved ane Indictment as if he had murdered the said Mary And upon this Indictment The petitioner being brought to a tryall before ane assize and uitnesses suorne against him was found guiltie and is sentenced to be execute and hanged to death upon the seventh of Agust next As to which sentence The petitioner Doeth most Humbly represent to their Lordships That Even the Baillie himself and all that ever heard of this matter are of the opinion That the petitioner gott hard measure from the Assizers nor were the assize themselves unanimous in their verdict But it only past by the plurality But secundo The petitioner Lays before their Lordships the extract of the whole process with the depositions and verdict To the effect they may be revieued And thereby it will plainly appear That ther uas noe sufficient Evidence against the petitioner Ther being not so much as one witnes that proves That the petitioner did at all beat her in any sort aither with hand fist or other weapon But in effect all proven against the petitioner is That he helped her away from his oune house to be quite of her trowble and clamour For as to what is witnessed of her saying That the petitioner was the cause of her death or that the witnesses heard others say That the petitioner or others in his Company had beaten her It is only false hearsay and makes nothing for the verity and sufficiency of the evidence As also the petitioner was manifestly uronged in so farr as first This most unansuerable objection against one of the witnesses uas repelled viz the said uitnes had a deadly feed against the petitioner and had threatned to kill him which uas the only uitnes that proved anything next ther uas no probation taken before the pannall and Inquiest in Court as is required by the act of parliament But only the Baillie Having before the tryall taken the probation of uitnesses by uay of recognition they uere not againe examined in presence of the assize and petitioner But only the former testimonies taken were repeated which is dounright Contrary to the nyntie one Act parliament Eleventh James the Sixth By which It is provyded that the witnesses and all the probation should be Led and deduced to the assize In presence of the party accused in place of Judgement and noe otheruise so that by the Law and Constant practice in such cases The oaths of the uitnesses formerly taken in the precognition should have been cancelled in the Court that they might have been at full Libertie to depone of new againe in presence of the party and assize And all this is Instructed by ane extract of the proces produced uith the said petitione And yet it is Certain that the forsaid assize did find him guiltie upon noe other Grounds seing therfore that this a matter of Life and death And that unles their Lordships Find a remedie and that speedily The petitioner will infallibly be putt to death tho clean and Innocent as said is And therfore Humblie Craving their Lordships to Review the forsaid proces probation and sentence in order aither to a Long Repreive or to the altering the forsaid paine and punishment as their Lordships shall see Cause And in the meantyme to Grant a sist of execution as the said petition Bears Which petition being upon the Fourteenth day of July Instant read in presence of the saids Lords of his Majesties privie Councill They Recommended to a Committie of their oune Number to Consider the principall proces or Indictment before the Baillie of the regality of Lennox against the petitioner with the Depositions verdict and haill other stepps of the proces And to see if the samen be Legallie and formallie done And the said Committie Having accordingly mett They Gave in their report Bearing That they having Considered the said proces and Indictment with the Depositiones of the uitnesses And Having taken the oath of Mathew Lindsay who uas Clerk to the said proces They find that the depositions taken in the precognition uere not destroyed as they ought to have been And that the witnesses were not of new examined before the Inquiest but that the depositiones in the precognition being read over to the witnesses in presence of the Inquiest The witnesses adhered to their depositions uith litle alteration And it is the Committies opinion that the procedure in the said Criminall proces is not Legall The uitnesses being under the forsaid prelimitation And therfore that the Councill may change the sentence of death pronunced against the said John Simmison into a sentence of banishment out of this Kingdome as the said report at more Length Bears And the saids Lords of his Majesties privie Councill Having this day Considered the above report of the Committie They heirby Convert the sentence of death pronunced against the said John Simmison into Banishment And heirby Banishes him furth of this Kingdome And Gives order and warrand to the Magistrats of Dumbartoun and Keeper of their tolbooth To sett the said John Simmisone at Liberty furth therof In respect that he hath Inacted himself in the Books of privie Councill That he shall depart furth of this Kingdome betuixt and the fifteenth day of Agust next to Come and never returne therto under the paine of Having the forsaid sentence of death pronunced against him putt in executione against him uithout mercy or furder delay sic subscribitur Poluarth cancelar Queensberrie Argyll James Ogilvie James Steuart Alexander Hope James Murray W Anstruther John Lauder C Campbell