Scottish Privy Council Records

Att Edinburgh The Tuenty first day of Janwary J^aj vj^c nyntie tuo years

A1692/1/49¹

Act

Repryve William Irvine

Anent a petitione given In to the Lords of their Majsties privie Councell Be Uilliam Irvine prisoner In the tolbooth of Edinburgh Sheuing that wher the petitioner Being pursued before the Baillies of Edinburgh and their assessors for Having accessione to and being airt and pairt of the slaughter of […] Pattoune one of the Gentlemen of the guaird who was killed upon last mundays night And the petitioner Having receaved his Lybell yesterdays morning was necessitat to ansuer therto about tuelve a clock And after Debate The Magistrats by their Interloquitor found That it was sufficient to inferr the paine of death against the petitioner that he Did strik att the defunct uith ane drauen suord and that he att that tyme receaved wounds of which he dyed But lykewayes did sustaine the defence which was unansuerable in Law that the defunct was the first aggressor by drawing his suord and pushing at him before the petitioner did Draw his suord in his oune defence And ther having been ten or tuelve witnesses adduced for proving of the Lybell And some of which Having deponed That they saw both the petitioner and the defunct closslie Ingadged with their drauen suords and that the defunct receaved ane wound at that tyme of which therafter he dyed The petitioner was found guiltie and sentenced to be execute this day att three of the clock in the afternoon And Itis now Humblie represented to their Lordships for the petitioner That by the whole probatione adduced Against him Itis Evident and beyond all shaddow of debaite or contraversie clear that the defunct was not killed by the petitioner For primo The Chirurgeons and all those who sighted the defuncts body Did Depone that he receaved but one wound and that the orefeice therof was so small that it was Impossible this wound could be Given by ane broad Suord Secundo severall of the other witnesses adduced for proving of the Lybell doe all aggrie in this That the defunct was killed by one Guillone who did the same with ane stoge of ane small suord and who Immediatly after he had Committed the Fact Did dight the blood off of the Blead of his suord and soe made his escape And ther is not soe much as one uitness depones that the petitioner did wound the Defunct And the whole uitnesses doe Concurr in this That the suord which the petitioner had in his hand was ane Broad Suord Tertio when the petitioner was brought to the Guaird and was ther examined by one of the Baillies he did ther ex recente protest his Innocence and that he made noe use of his suord but for his defence and that he had noe quarrell against the defunct and that he had never seen him before Quarto James Hay pirriwigg maker who is ane persone of Intire reputatione who was present at the begining and during the whole tyme of the Actione does expressly depone in thir tearmes That the defunct did attack both Gullion and the petitioner with ane drauen suord and did clossly pursue them And that they did retire before him till at last they were forced to returne and in their oune defence to draw their suords and that the defunct did Continow to assault and Invade the petitioner till Gullon who hes escaped did Give the defunct the wound quherof he dyed which did in precise termes prove the defence if ther had been ane other Concurring witness with him But It was the petitioners misfortune that ther was none else present at that tyme of the begining of this scuffle but one James Broune who declares the truth of the matter of fact to be in every Circumstance as Hay hes deponed But in respect that Broune declared upon oath that he was not worth the Kings unlaw the baillies refuised to admitt him as ane witness and would not receave him even cum nota And ther being none else present but these tuo The Assyse did find the defence not proven And therfore the petitioner is necessitat to make this Humble applicatione to their Lordships who are alwayes in use to Grant Repryvalls to others in farr Less favourable Circumstances then these the petitioner is in And the Magistrats doe expressly declare their satisfactione that the same should be Granted by the saids Lords to the petitioner And by what is above represented It clearly appears that the petitioner was neither the author nor Actor of the slaughter and is only reached upon that subtility of our Law as being airt and pairt and would certainly have proven his defence which was sustained to him if the other witness had not been poor And the petitioner is Confident that ther was others who were present and would Lykewayes Concurred in this But the tryall was soe summar that the petitioner Could gett noe Informatione of any others who were present And Itis Hard to hurrie a persone off this wordle to Eternitie especiallie wher his Innocence does soe manifestly appear And therfore Humblie Craving their Lordships seriouslie to Consider the premisess and all the particular Circumstances above represented for the petitioner And in respect therof to Grant him ane Considerable tyme for preparing himself for death And therafter to Call for the adjurnalls of the Courte By which they will find the haill premisses verified And the petitioner is most willing to take on himself ane Act of Banishment and to find Cautione not to returne and to spend the rest of his Life in their Majesties service as ane souldier as the said petitione Bears The saids Lords of their Majesties privie Councell Having Considered this petitione Given In to them be the above William Irvine They heirby Repryve the said William from the sentence of death pronunced against him Be the magistrats of Edinburgh untill the tuenty Eight day of January instant Inclusive And discharges the saids magistrats to putt the said sentence in executione untill the tuenty nynth day of the said moneth And in the meantyme Alloues the Magistrats of Edinburgh Relict Children or neerest of Kinn of the defunct to see and ansuer this petitione Betuixt and the said tuenty Eight day of January And ordaines Intimatione heirof to be made to the Magistrats of Edinburgh To the effect above specified. Sic subscribitur Tueeddale Cancell Douglass Craufurd Mortoune Leiven Stair Raith Ruthven Pollwarth Ballfour.

At Edinburgh 21 January 1692

A1692/1/49¹

Act

Reprieve for William Irvine

Concerning a petition given in to the lords of their majesties’ privy council by William Irvine, prisoner in the tolbooth of Edinburgh, showing that where the petitioner being pursued before the baillies of Edinburgh and their assessors for having accession to and being art and part of the slaughter of James Patton, one of the gentlemen of the guard who was killed upon last Monday night, and the petitioner having received his libel yesterday morning was necessitated to answer thereto about twelve o’clock, and after debate the magistrates by their interlocutor found that it was sufficient to infer the pain of death against the petitioner that he did strike at the defunct with a drawn sword and that he at that time received wounds of which he died, but likewise did sustain the defence which was unanswerable in law that the defunct was the first aggressor by drawing his sword and pushing at him before the petitioner did draw his sword in his own defence, and there having been ten or twelve witnesses adduced for proving of the libel, and some of which having deponed that they saw both the petitioner and the defunct closely engaged with their drawn swords and that the defunct received a wound at that time of which thereafter he died, the petitioner was found guilty and sentenced to be executed this day at three o’clock in the afternoon, and it is now humbly represented to their lordships for the petitioner that by the whole probation adduced against him it is evident and beyond all shadow of debate or controversy clear that the defunct was not killed by the petitioner. Firstly, the surgeons and all those who sighted the defunct’s body did depone that he received but one wound and that the orifice thereof was so small that it was impossible this wound could be given by a broadsword; secondly, several of the other witnesses adduced for proving of the libel do all agree in this that the defunct was killed by one Guillon who did the same with one cut of a small sword and who immediately after he had committed the fact did wipe the blood off of the blade of his sword and so made his escape, and there is not so much as one witness depones that the petitioner did wound the defunct, and the whole witnesses do concur in this that the sword which the petitioner had in his hand was a broadsword; thirdly, when the petitioner was brought to the guard and was there examined by one of the baillies he did there immediately protest his innocence and that he made no use of his sword but for his defence and that he had no quarrel against the defunct and that he had never seen him before; fourthly, James Hay periwig maker who is a person of entire reputation who was present at the beginning and during the whole time of the action does expressly depone in these terms that the defunct did attack both Gullion and the petitioner with a drawn sword and did closely pursue them, and that they did retire before him until at last they were forced to return and in their own defence to draw their swords and that the defunct did continue to assault and invade the petitioner till Gullon, who has escaped, did give the defunct the wound whereof he died which did in precise terms prove the defence if there had been another concurring witness with him, but it was the petitioner’s misfortune that there was none else present at that time of the beginning of this scuffle, but one James Brown who declares the truth of the matter of fact to be in every circumstance as Hay has deponed, but in respect that Brown declared upon oath that he was not worth the king’s unlaw, the baillies refused to admit him as a witness and would not receive him even with a note, and there being none else present but these two the assise did find the defence not proven, and therefore the petitioner is necessitated to make this humble application to their lordships who are always in use to grant reprieves to others in far less favourable circumstances than these the petitioner is in. And the magistrates do expressly declare their satisfaction that the same should be granted by the said lords to the petitioner, and by what is above represented, it clearly appears that the petitioner was neither the author nor actor of the slaughter and is only reached upon that subtility of our law as being art and part and would certainly have proven his defence which was sustained to him if the other witness had not been poor, and the petitioner is confident that there was others who were present and would likewise have concurred in this, but the trial was so summary that the petitioner could get no information of any others who were present, and it is hard to hurry a person off this world to eternity especially where his innocence does so manifestly appear, and therefore humbly craving their lordships seriously to consider the premises and all the particular circumstances above represented for the petitioner, and in respect thereof to grant him a considerable time for preparing himself for death, and thereafter to call for the adjournals of the court, by which they will find the whole premises verified, and the petitioner is most willing to take on himself an act of banishment and to find caution not to return and to spend the rest of his life in their majesties’ service as a soldier as the said petition bears. The said lords of their majesties’ privy council having considered this petition given in to them by the above William Irvine they hereby reprieve the said William from the sentence of death pronounced against him by the magistrates of Edinburgh until 28 January instant inclusive, and discharge the said magistrates to put the said sentence in execution until the 29th day of the said month, and in the meantime allows the magistrates of Edinburgh relict, children or nearest of kin of the defunct to see and answer this petition between and the said 28 January, and ordain intimation hereof to be made to the magistrates of Edinburgh to the effect above specified. Signed thus, earl of Tweeddale, chancellor, marquis of Douglas, earl of Crawford, earl of Morton, earl of Leven, Viscount Stair, Lord Raith, Lord Ruthven, Lord Polwarth [and] master of Burleigh.

1. NRS, PC1/47, 584-5.