Act, 3 March 1692, Edinburgh

Act, 29 December 1692, Edinburgh

Att Edinburgh The Third Day off March Jaj vjc and Nyntie tuo years

A1692/3/131

Act

Recomendatione Repryve to William Irving

The Lords of there Majestyes privie Counsell Haveing Considered the Report of a Comittee of there oune number to whom it wes remitted to revise the process befor the Magistrats of Edinburgh against William Irving for murder whereof the tenor followes In presence of Sir Coline Campbell of Aberuchill and Sir John Lauder of Fountainhall a Comittee appointed be the Lords of Counsell to consider the Criminall process againest William Irving The Comittee haveing considered the Criminall process persued befor the Magistrats of Edinburgh and there assessors at the instance of Agnes Padzean relict of the deceist James Pattoun one of the gentlemen of there Majestyes troop of guards and the procuator fiscall of the Good toun of Edinburgh Againest William Irving servitor to James Auchinleck one of the Cornettes of one of the troops of Sir Thomas Livingstouns Regiment of dragoons now prisoner in the tolbooth of Edinburgh Are of opinion That the saids Magistrats and there assessors with the assyse have proceeded fairly Justly and Legally in the said tryall and process Conforme to the precise Lawes of the Kingdome Finding the said William Irving guilty and sentenceing him as airt and pairt of the Slaughter of the said James Pattone But In regaird It would appear That there wes no forethought fellony nor precogitat malice Nor that it does not appear That the defunct and William Irving were so much as acquainted And that three witnesses tuo adduced by the persewer called Alexander Cockburne and George Mcgowne And the other adduced by the defender in the exculpatione called James Hay appear to Concurr that the Mortall wound wes given to the defunct by one Guillen who hade a small sword and readially thereafter made his escape And that tho it be proven Clearly that the said William Irving did strick severall tymes ane broad sword at the defunct which wes sufficient in law to make him guilty of airt and pairt Yet it is not proven that he did wound the defunct As also the Magistrats haveing Justly found a defence proponed for the pannell relevant viz That the defunct did aggress and assualt him with ane drawen sword by thrusting or strickeing at him therewith befor the pannell drew his Sword and that the defunct continowed without Intermission or separatione to thrust and strick at the pannell after the defunct first assaulted him As and whill the defunct receaved the Mortall wound Relevant conjunction to eleid the paine of death The Comittee Finds the same is clearly proven by the single testimony of James Hay who positively depones that the defunct persued the pannell with ane drawen sword from the gaird house to the head of Blackfryar wynd without Intermissione befor the pannell drew his sword And ane other witnes named James Broun who its alleadged would have Concurred in terminis with Hay being in law rejected as not worth the Kings unlaw The pannell thereby succumbed in proveing his defence As also considering that the pannell is a souldier whose professione esteems fleeing too farr somewhat dishonourable And may be Ignorant of what is excessus moderaminis Inculpae tutelae2 Therefore the Comittee are of opinione that Conjoyneing the forsaids alleviating Circumstances the said William Irving may be ane object of there Majestyes mercie and Clemencie for changeing the sentence of death to ane arbitrarie punishment of perpetuall banishment under the paine of death The saids Lords of there Majestyes privie Counsell Approves of the above Report And recomends the said William Irving to there Majestyes mercie Conforme to there Majestyes Letter direct to the Counsell of the date the tuentie day of Februarij last anent the said William That his Majestie may be pleased to grant him a remission and therein to alter the sentence of death pronunced againest the said William to perpetuall banishment And in the mean tyme the saids Lords repryves him from the said sentence of death And discharges the same to be putt in executione againest him untill his Majestyes pleasure be knowen in the matter

At Edinburgh 3 March 1692

A1692/3/131

Act

Recomendation: reprieve to William Irving

The lords of their majesties’ privy council having considered the report of a committee of their own number to whom it was remitted to revise the process before the magistrates of Edinburgh against William Irving for murder whereof the tenor follows. In presence of Sir Colin Campbell of Aberuchil and Sir John Lauder of Fountainhall a committee appointed by the lords of council to consider the criminal process against William Irving, the committee having considered the criminal process pursued before the magistrates of Edinburgh and their assessors at the instance of Agnes Padzean relict of the deceased James Paton one of the gentlemen of their majesties’ troop of guards and the procurator fiscal of the good town of Edinburgh against William Irving servitor to James Auchinleck one of the cornets of one of the troops of Sir Thomas Livingston’s regiment of dragoons, now prisoner in the tolbooth of Edinburgh, are of opinion that the said magistrates and their assessors with the assise have proceeded fairly, justly and legally in the said trial and process according to the precise laws of the kingdom, finding the said William Irving guilty and sentencing him as art and part of the slaughter of the said James Paton. But in regard that it would appear that there was no forethought felony nor premeditated malice, nor that it does not appear that the defunct and William Irving were so much as acquainted and that three witnesses (two adduced by the pursuer called Alexander Cockburn and George McGown and the other adduced by the defender in the exculpation called James Hay) appear to concur that the mortal wound was given to the defunct by one Guillen who had a small sword and readily thereafter made his escape, and that though it be proven clearly that the said William Irving did strike several times a broad sword at the defunct which was sufficient in law to make him guilty of art and part, yet it is not proven that he did wound the defunct. As also the magistrates having justly found a defence proponed for the panel relevant, viz that the defunct did aggress and assault him with a drawn sword by thrusting or striking at him therewith before the panel drew his sword, and that the defunct continued without intermission or separation to thrust and strike at the panel after the defunct first assaulted him, as and while the defunct received the mortal wound relevant conjunction to elide the pain of death. The committee finds the same is clearly proven by the single testimony of James Hay who positively depones that the defunct pursued the panel with a drawn sword from the guard house to the head of Blackfriars Wynd without intermission before the panel drew his sword. And another witness named James Broun who it is alleged would have concurred explicitly with Hay being in law rejected as not worth the king’s unlaw, the panel thereby succumbed in proving his defence. As also considering that the panel is a soldier whose profession esteems fleeing too far somewhat dishonourable, and who may be ignorant of what is a deviation from a controlled amount of permissible force, therefore the committee are of the opinion that conjoining the foresaid alleviating circumstances the said William Irving may be an object of their majesties’ mercy and clemency for changing the sentence of death to an arbitrary punishment of perpetual banishment under the pain of death. The said lords of their majesties’ privy council approve of the above report and recommend the said William Irving to their majesties’ mercy according to their majesties’ letter direct to the council of the date the twentieth day of February last concerning the said William that his majesty may be pleased to grant him a remission and therein to alter the sentence of death pronounced against the said William to perpetual banishment. And in the meantime, the said lords reprieve him from the said sentence of death and discharge the same to be put into execution against him until his majesty’s pleasure be known in the matter.

1. PC1/48, 93-4.

2. For the legal phrase ‘moderamen inculpate tutelae’, see Kenneth Pennington, ‘Moderamen inculpate tutelae: The Jurisprudence of a Justifiable Defence’, Rivista Internazionale di Diretto Comune, 24 (2013, 27-55).

1. PC1/48, 93-4.