Tag Archives: 3 March 1692

Act, 3 March 1692, Edinburgh

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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.

Act, 3 March 1692, Edinburgh

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

A1692/3/121

Act

Protectione to some posts from being pressed as souldiers

Anent the petitione Given in to the Lords of there Majestyes privie Counsell be Sir William Lockhart there Majesties Sollicitor Shewing That Alexander Mcnaughtan James Wall Alexander Smith David Steiven, David Pattone and James Walker and the ordinarie posts the petitioner Imployes in Carrying there Majestyes Letters and expresses throw the kingdom Notwithstanding whereof they are Continually troubled in there Journeyes and beds to be pressed and taken on to be souldiers And therefor Craveing to the effect under wreitten as the said petitione bears The saids Lords of there Majestyes privie Counsell haveing considered this petitione given in to them be there Majestyes sollicitor They hereby protect the above Alexander Mcnaughtan James Wall Alexander Smith David Steven David Pattone and James Walker from being pressed or taken on as souldiers by any of the officers of there Majesties forces or others And discharges any persones to trouble or molest them in there travelling to or froe in there Journeyes as they will be ansuerable at there highest perrill

At Edinburgh 3 March 1692

A1692/3/121

Act

Protectione to some posts from being pressed as soldiers

Concerning the petition given in to the lords of their majesties’ privy council by Sir William Lockhart their majesties’ solicitor, showing that Alexander McNaughton, James Wall, Alexander Smith, David Steven, David Paton and James Walker and the ordinary posts the petitioner employs in carrying their majesties’ letters and expresses through the kingdom, notwithstanding whereof they are continually troubled in their journeys and beds to be pressed and taken on to be soldiers, and therefore craving to the effect underwritten as the said petition bears. The said lords of their majesties’ privy council, having considered this petition given in to them by their majesties’ solicitor, they hereby protect the above Alexander McNaughton, James Wall, Alexander Smith, David Steven, David Paton and James Walker from being pressed or taken on as soldiers by any of the officers of their majesties’ forces or others and discharge any persons to trouble or molest them in their travelling to or fro in their journeys as they will be answerable at their highest peril.

1. PC1/48, 92-3.

1. PC1/48, 92-3.

Procedure: committee, 3 March 1692, Edinburgh

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

A1692/3/111

Procedure: committee

Comittee Anent William Fraser2

The Lords of there Majesties privie Counsell haveing heard the petitione given in to them3 William Fraser prisoner in the tolbooth of Edinburgh read in there presence They recomend to the Lord Ruthven and Sir Thomas Livingstoun Commander in cheif etc to Call for and and examine the petitioner and report to the Counsell

At Edinburgh 3 March 1692

A1692/3/111

Procedure: committee

Comittee concerning William Fraser2

The lords of their majesties’ privy council having heard the petition given in to them by William Fraser prisoner in the tolbooth of Edinburgh read in their presence, they recommend to [David] Lord Ruthven and Sir Thomas Livingston, commander in chief etc, to call for and examine the petitioner and report to the council.

1. PC1/48, 92.

2. Beneath this marginal title is written: ‘Nota This is wrong booked but is afterwards right booked this same day’.

3. The phrase ‘be the above’ scored out here.

1. PC1/48, 92.

2. Beneath this marginal title is written: ‘Nota This is wrong booked but is afterwards right booked this same day’.

Decreet, 3 March 1692, Edinburgh

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A1692/3/101

Decreet

Decreet Mr Robert Skene against Heretors of Dunsyre for Stipend

Anent the bill of suspension given in to the Lords of there Majestyes privie Counsell be George Lockhart of Carnwath and Sir John Lockhart of Castlehill his tutor for his interest Christopher Bailzie of Walstoun and George Baillie of Muirhousehall for themselves and in name and behalf of the heretors and others Lyable in payment of the stipend of Dunsyre Mentioning That where they are lately Charged at the instance of Mr Anthony Murray Minister lately at Dunsyre and Mr Robert Skene late Incumbent of the said paroch of Dunsyre To make payment to each of them of the equall half of the stipend of the said paroch for the Cropt and year Jaj vjc and Nyntie one Conforme to there severall acts of Counsell recovered befor the saids Lords there anent within ane Certain Short space next after the Charge under the pain of rebellion and putting of the saids suspenders to the horne who for alleadged dissobedience Intends to Cause denunce them thereto and poynd there goods therefore most wrongously and unjustly Considering It is of verity that the forsaid act is most Clandestinely Stollen throw againest the saids suspenders without Citeing of them or Intimatione made to them who were the only persones concerned and Lyable in payment of the said stipend Whereas if the saids suspenders hade been called or ordained to see the petitiones given in be the saids chargers They would have alleadged Likeas they now alleadge That no such act or sentence could have been given againest the saids suspenders in the said matter Primo Because by the Lawes and practique of this Kingdome Manses dureing the Incumbencie of ministers ought to be upheld in sufficient repair and conditione by the Incumbent and Left so at the tyme of there removeall by death or transportation And dureing the vacancie Manses are to be keept up and Mantained out of vacant stipends And by the eighteinth act of parliament Jaj vjc and Eightie fyve And by the tuentie eight act of parliament Jaj vjc and Nyntie vacant stipends are expressly destinatt and appointed for reparatione of kirks with certificatione against patrones (In case the same be not accordingly applyed) In maner therein mentioned And Mr Anthonie Murray haveing been Incumbent for some years bypast And the Kirk vacant for ane half year since whitsonday last And there being a Call given to ane other minister which can take no effect till the Kirk and Manse which are ruinous be sufficiently repaired The saids acts and all executione thereon ought to be suspended And the acts burdened with the reparatione of the saids manse and kirk According to the Institutione of the presbitrie And that the paroch may not Longer be depryved of the ministrie and ordinances That the cause may be remitted to tuo of the saids Lords there Number to be summarly discussed on the bill Whereby the saids Lords may perceave etc Nevertheless for obedience etc And therefore etc And therefore beseeching the saids Lords for Letters direct to Messengers to Charge the saids Mr Anthony Murray and Mr Robert Skein personallie etc To Compear etc Bringing with them etc To be seen and Considered etc And to hear and see the samen suspended etc and in the mean tyme to suspend and discharge etc in Communij forma As the said bill of suspensione bears The saids Lords of there Majestyes privie Counsell haveing considered the above bill and reasones of suspension given in to them be the heretors of Dunsyre againest the Mr Anthony Murray and Mr Robert Skein They Refuse the same In so farr as it concernes the said Mr Robert Skein And allowes him to goe on in diligence upon the act of Counsell in his favours for the stipend of the above kirk of Dunsyre the Last half of the year Jaj vjc and Nyntie one

At Edinburgh 3 March 1692

A1692/3/101

Decreet

Decreet for Mr Robert Skene against heritors of Dunsyre for Stipend

Concerning the bill of suspension given in to the lords of their majesties’ privy council by George Lockhart of Carnwath and Sir John Lockhart of Castlehill his tutor for his interest, Christopher Baillie of Walstoun and George Baillie of Muirhousehall for themselves and in name and behalf of the heritors and others liable in payment of the stipend of Dunsyre, mentioning that where they are lately charged at the instance of Mr Anthony Murray minister lately at Dunsyre and Mr Robert Skene late incumbent of the said parish of Dunsyre to make payment to each of them of the equal half of the stipend of the said parish for the crop and year 1691, according to their several acts of council recovered before the said lords concerning the same within a certain short space next after the charge under the pain of rebellion and putting of the said suspenders to the horn, who for alleged disobedience intend to cause denounce them thereto and poind their goods therefor most wrongfully and unjustly, considering it is of verity that the foresaid act is most clandestinely stolen through against the said suspenders without citing of them or intimation made to them who were the only persons concerned and liable in payment of the said stipend, whereas if the said suspenders had been called or ordained to see the petitions given in by the said chargers, they would have alleged, as they now allege, that no such act or sentence could have been given against the said suspenders in the said matter: First because by the laws and custom of this kingdom, manses during the incumbency of ministers ought to be upheld in sufficient repair and condition by the incumbent and left so at the time of their removal by death or transportation, and during the vacancy, manses are to be kept up and maintained out of vacant stipends and by the eighteenth act of parliament 1685, and by the twenty-eighth act of parliament 1690 vacant stipends are expressly appointed for repair of kirks with certification against patrons (in case the same be not accordingly applied) in manner therein mentioned, and Mr Anthony Murray having been incumbent for some years bypast and the kirk vacant for half a year since Whitsun last and there being a call given to another minister which can take no effect till the kirk and manse which are ruinous be sufficiently repaired, so the said acts and all execution thereupon ought to be suspended and the acts burdened with the repair of the said manse and kirk according to the institution of the presbytery. And so that the parish may no longer be deprived of the ministry and ordinances, that the cause may be remitted to two of the said lords to be summarily discussed on the bill, whereby the said lords may perceive etc. Nevertheless, for obedience etc and therefore etc and therefore beseeching the said lords for letters direct to messengers to charge the said Mr Anthony Murray and Mr Robert Skene personally etc to appear etc, bringing with them etc to be seen and considered etc and to hear and see the same suspended etc and in the meantime to suspend and discharge etc in common form as the said bill of suspension bears. The said lords of their majesties’ privy council having considered the above bill and reasons of suspension given in to them by the heritors of Dunsyre against the said Mr Anthony Murray and Mr Robert Skene, they refuse the same in so far as it concerns the said Mr Robert Skene and allow him to go on in diligence upon the act of council in his favour for the stipend of the above kirk of Dunsyre for the last half of the year 1691.

1. PC1/48, 91-2.

1. PC1/48, 91-2.

Act, 3 March 1692, Edinburgh

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

A1692/3/91

Act

Act Mr John Ker for stipend

Anent the petitione given in to the Lords of there Majesties privie Counsell be Mr John Ker late minister at Roxburgh Shewing That where the petitioner hes obtained from Robert Earle of Roxburgh with consent of his curators undoubted patrone of the said kirk of Roxburgh ane gift of half ane years vacant stipend of the said paroch Cropt and year of God Jaj vjc and Nyntie years And thereby Impowered the petitioner to supplicate the saids Lords for the effectuall payment thereof As the consent of the said Noble Earle and his Curators produced with the said petitione hes testifyed Which they were pleased to grant upon Consideratione that the petitioner hade faithfully served the cure at the said kirk till the day befor Michaellmess Jaj vjc and Nyntie years and obtempered the proclamatione Emitted by the States daited the thretteint day of Apryll Jaj vjc and Eightie Nyne years And therefore Craveing to the effect underwreitten As the said petitione bears The saids Lords of there Majesties privie Counsell haveing Considered this petitione Given in to them be the above Mr John Ker Late Minister at Roxburgh with the Consent or gift produced therewith They allow the petitioner the stipend of the above kirk of Roxburgh for the last half of the cropt and year of God Jaj vjc and Nyntie And ordaines him to be readiely ansuered obeyed and payed thereof be the heretors fewers Lyfrenters titulars tacksmen of teynds tennents possessors and others Lyable in payment of the samen And ordaines Letters of horning to be direct at his instance againest them for that effect upon productione of ane decreet of Locality And in case there be none ordaines these Lyable to make payment of there respective proportiones according as the samen shall be decerned be there Judge ordinarie

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

A1692/3/91

Act

Act for Mr John Ker for stipend

Concerning the petition given in to the lords of their majesties’ privy council by Mr John Ker late minister at Roxburgh, showing that where the petitioner has obtained from Robert earl of Roxburgh, with consent of his curators, undoubted patron of the said kirk of Roxburgh a gift of half a year’s vacant stipend of the said parish, crop and year of God 1690, and thereby empowered the petitioner to supplicate the said lords for the effectual payment thereof, as the consent of the said noble earl and his curators produced with the said petition has testified, which they were pleased to grant upon consideration that the petitioner had faithfully served the cure at the said kirk till the day before Michaelmas 1690 and complied with the proclamation emitted by the estates dated the thirteenth day of April 1689; and therefore craving to the effect underwritten, as the said petition bears. The said lords of their majesties’ privy council, having considered this petition given in to them by the above Mr John Ker late minister at Roxburgh with the consent or gift produced therewith, they allow the petitioner the stipend of the above kirk of Roxburgh for the last half of the crop and year of God 1690, and ordain him to be readily answered, obeyed and paid thereof by the heritors, feuars, liferenters, titulars and tacksmen of teinds, tenants, possessors and others liable in payment of the same, and they ordain letters of horning to be direct at his instance against them for that effect upon production of a decreet of locality. And in case there be none, they ordain those liable to make payment of their respective proportions according as the same shall be decerned by their judge ordinary.

1. PC1/48, 90-91.

1. PC1/48, 90-91.

Sederunt, 3 March 1692, Edinburgh

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Att Edinburgh The Third Day off March Jaj vjc and Nyntie tuo years1

A1692/3/82

Sederunt

Lord Chancellour; Marquis of Douglas; Earl of Crawfurd; Earl of Mortoun; Earl of Louthian; Earl of Leven; Viscount Stairs; Lord Raith; Lord Carmichaell; Lord Ruthven; Lord Polwarth; Master of Burghly; Lord Aberuchill; Lord Fountainhall; Laird of Leyes; Laird of Broddie

At Edinburgh 3 March 16921

A1692/3/82

Sederunt

[John Hay, earl of Tweeddale] Lord Chancellor; [James Douglas] marquis of Douglas; [James Douglas] earl of Morton; [Robert Kerr] earl of Lothian; [David Leslie] earl of Leven; [James Dalrymple] Viscount Stair; [Alexander Melville] Lord Raith; [John] Lord Carmichael; [David] Lord Ruthven; [Patrick Hume] Lord Polwarth; [Robert Balfour] master of Burleigh; [Sir Colin Campbell] Lord Aberuchil; [Sir John Lauder] Lord Fountainhall; [Sir Thomas Burnet] laird of Leys; [James Brodie] laird of Brodie.

1. PC1/48, 90.

2. PC1/48, 90.

1. PC1/48, 90.

2. PC1/48, 90.