• Sir John Dalrymple, younger of Stair, His Majesties Advocat. , and • Sir George M ^ckenzie, Advocat. 

• Sir David Thoirs. , • Sir Patrick Hume. , • Mr. William Moniepenny. , and • Mr. William Dundass. 

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 commiting and being guilty of, and accessory to many notour Crimes abroad, and being detained Prisoner in London, Antwerp, 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.

2 ^o. 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 Father's decease, that one Alexander Ainslie told him that his Father made such a Disposition.

3 ^o. As to the pretended Expressions, that the Defender should have had [Page 6] 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 Cod: ubi de criminibus agi oportet, Qua in provincia quis delinquit, ant 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 whatsomever, 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.

4 ^o. 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 Laws.

5 ^o. As to any pretended Expressions, of railing 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. par. 1. de perpetuis temporalibus action. Leg. 10. par. 2. ff. si quis cautionibus in ju­judicio fisten. 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 Pannel, he or­ders him to take in his Chamberlain Accompts of the Rents of his Lands, and of any Money he had received from the Tenements, 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, that all former differences (if any were) be­twixt them were then taken away.

As to the third part of the Indytement, in relation to the several Acts and Qualifications insisted upon: To inferr, that the Defender had acces­sion to his Father's death. It is answered, ( primo) That the Indytement, in so far as it is founded upon the 51. Act Par. 11. K. Ja. 6. in relation to the Murder under trust, which is declared to be punishable as Treason, is not relevant: Because the Father cannot in Law be said to be under trust and assurance of the Son, and that Act of Parliament takes only place in Cases where a man is invited to his neighbours House, or of an Traveller being in an Inn, and that he be murdered under that trust, and the same Act of Par­liament being founded on in the case of Swinton, who killed his Wife, in the year 1666. the Inditement was restricted to simple Slaughter. And in the case of Master James Oliphant, in the year 1665, The Lords of the Session found, that a Son's killing his Mother, was not Murder under trust, and so he was not punishable by that Act of Parliament, as guilty of the Crime of Treason.

2 ^o. The Acts and qualifications condescended on to infer the Defend­ers [Page 7] Accession to his Fathers death, are but very remote and uncertain, for as to that expression, That the defender is alledged to have threatned his Fathers death, It is the opinion of all Lawyers, who have written upon the subject, that that is but a very remot Presumption. And as Carpzo­vius expresses it, Part. 3. Quest. 121. Numb. 51. quod est indicium ad­modum periculosum quippe cum homines saepe nil minus faciant quam quod minas exequantur et ira cundia agitatus minas de crimine perpetrando saepe jactet ipso tamen animo fervore paulo post disscusso cohibeat manus et abstin­eat a facinore illo quod forsan ab alio postea committitur. And Paris de puteo gives an instance in his Tractat de syndicatu upon the word Tortura; and Boverius, That a Woman seeing a Person going by her Window, against whom she had a Prejudice, and that another having a hatred against her, and hearing that she had threatned to cut off that Persons Leggs, the party that did hear the Woman use the threatning, did the thing, upon which the Woman that did threaten, being challenged, and put to the Torture, did con­fess; Yet thereafter it was found, that she was altogether innocent, and that another had done it.

3 ^o. As to the pretended Acts of the Defenders alledged Pursuing, and Invading his Father, and fireing Pistols at him, at Lothian burn and Culter­allors, in Annis 1683, and 1684. As it is most groundless, so if need were it could be made appear by the Persons who were in company with him at that time, That the Defender, and his Father, were then in intire friendship all alongst the journey, and he was so far from making any such attempt, That it can be made appear, that the Defender did behave himself towards his Father, with all the submission and respect that became a Son to have to his Father; But as to these and all other Acts preceeding March, 1685. the Defender is secured by the Act of Indemnity, and as the Defender cannot be pursued for any Crime preceeding that time; neither in Judgment nor out with the same, they in effect being no Crimes, being taken away by the Act of Indemnity, they cannot be so much as made use of as qualifications or aggravations to infer another Crime posterior thereto.

4 ^o. As to that pretended qualification, that when the Defender did touch his Fathers dead body after it was taken out of the grave, the Corps did bleed.

It is answered, that this is but a superstitious observation without any ground either in Law or Reason. And Carpzovius relates, Part 3. Quest. 122. Numb. 31. That several Persons upon that ground had been unjustly challenged, and that he in his own experience, had seen a dead body bleed in presence of a person who was not guilty, as also that he has seen the body not bleed in presence of the Person that was guilty. And Mattheus de Cri­minibus, is of the same opinion, Tit. 16. de Quaestionibus, Numb. 12. de Sanguine porro de Cadavere profluente quod dicitur id de plurimis experi­mentis comprobetur tamen cum experimenta falsa sint ratio vero idonea nul­la reddi possit, non putaverim indicium ad torturam sufficiens esse; non e­nim sapientis Judicis est incerto experimento credere quod certa ratione di­rimendum est. And the truth is, the occasion of the dead bodies bleeding, was that the Chirurgions that came out to visit the body, did make an In­cision about the neck, which might be the occasion of the bleeding, and also the very moving of the dead body when it was taken out of the grave, and out of the Coffin might occasion the bleeding; especially seeing the body did not bleed for some time after, which certainly was made by the motion, and by the incision: As also as a further evidence, that it could not be the Defenders touching the body, the Chirurgions did likeways touch the Body as well as he, and several others present, so that the bleeding could [Page 8] no more be ascribed to his touching, than the touching of the other persons present.

5 ^o. As to the other Articles Lybel'd, Relating to the pretended Mur­der, They are but meer stories, and the truth is, and it is offered to be pro­ven, That the Defender having gone to his Chamber and Bed the night be­fore his Father's death, He did not stir out of his Bed, nor out of the Roum, till the next morning, that John Robertson his Fathers Servant came to his Chamber, where he was in Bed, and told him that he had been in his Ma­ster's roum, and that he could not find him; Upon which the Defender im­mediatly arose, and put on his cloaths, and went out to see where his Father was. And shortly after word being brought him, by some Persons in the Town, that they did see his Father's Body lying in the Water, and it being generally concluded by all, that he had thrown himself in the Water, and the body being taken out, and laid in a Low-Roum; It was thought fit by all the neighbours about, that he should be buried the next day.

6 ^o. The particulars Lybel'd, to infer the Defenders accession to his Fa­thers Death, being but remot and uncertain conjectures, It is a certain prin­ciple in Law, that ex praesumptionibus et conjecturis nemo criminaliter condem­nari potest, especially as to a Capital punishment: As is clear from the com­mon Law, Leg. 5. digest, de paenis, sed nec de supplicationibus debere aliquem damnare, satius enim est Impunitum relinqui facinus nocentis quam Innocentem damnare. And which is the opinion of all Lawers, writing upon the Sub­ject; As Bartol, upon the foresaid Law, and Farin. part. 3. oper: Crim. Quaest. 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 qua mentem indicantis adeo coactarent quod aliud credere non possit, non tamen sufficerent ad condemnationem paenae corporalis sed duntaxat pecuniariae.

7. 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 Lindall 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 Sterling, 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 committed 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 surmise went abroad, [Page 9] 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 Edinburgh, and several days 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 sufficient, 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 praevalet 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 Libel consists of three Articles, (Primo) Treason by the Pannal's drinking the King's Confusion, and by the Murder under Trust. 2 ^o. The Cursing of a Parent. 3 ^o. The Qualifica­tions inferring the Pannal's accession to the Murder of his Father.

As to the first, it cannot be denied, 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 readiness to en­gage in his Majesties Service, that the words could not be deliberate and ma­litious. It is replyed, That it is offered to be proven, that the drinking Confusion to the King, was openly and plainly proposed; And that the Pan­nal did deliberately send out for Ale to drink certain Healths, and that this Health to the King's Confusion was the first or second; and that it was no lapse or mistake in the expression; but that he forced others to pledge and drink that same Health: And the malice and disloyalty is evident by the Healths subsequent, viz. Antichrist's, &c. and it is not at all relevant, (af­ter the reiterate and deliberat expressing of these words) that he had retra­cted or drank the King's health; for a crime once committed, is not re­tracted or taken off by such inconsistent and unconsequential Speeches; But to shew the sence 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, [Page 10] 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 Parliament, 20. Act. 1. Par. K. Ch. 2d. bears expresly, That the Cursers of Parents shall be put to death without mercy. So that a general Act of Indemnity or Mercy without a special Remission, could not include this Crime, which as the Act of Parliament bears, is ex­presly against Nature and the Law of God: And by the Opinion of all Lawers, General Indemnities do not extend to all Crimes; but these Crimes which are called in Law Crimina excepta, are never intended to be Indemni­fied, nor such Crimes, where the Interest of Parties is more than the Inte­rest of publick Justice, and in all former and General Indemnities, Murther and other Crimes are particularly excepted with a general Clause, excepting all such Crimes as use not to be comprehended in general Acts of Indemni­ty; So that this so horrid a Crime, wherein the Parent was more interest­ed than the Publict, neither was nor could be comprehended under a gene­ral Indemnity: As also that restricted, limited Indemnity, bears expresly an exoneration for all persons below the degree and quality of an Heretor, Wod­setter or Burgess; and whether the Pannal were an Heretor or not, yet it cannot be said, that he is below the degree and quality of a Wodsetter or Bur­gess; and therefore the Act of Indemnity is of no use to him.

Whereas it is answered, That Sir James was reconciled with the Pannal, and wrote kind Letters to him, whereby dissimulando former Injuries were taken off. It is replyed, That Injuries are only taken off dissimulando, which are not atrocious, but never specifick Crimes, wherein the Discharge or ex­press Renunciation of the Party injured cannot liberat a vindicta publica, the punishment of Crimes, especially in Capital Punishments, belonging to the Magistrat, and the privat Party has not the sole Interest, nor can dispense with Capital Punishments: But the Letter founded upon, does not in the least infer the Parties forgiveness or dissimulation of the injury: And a Fa­ther ordering his Son to call in for Chamberlain Accompts, without im­powering him to Discharge the same, is not the least evidence of confidence in his Son, much less a Remitting of his Crime.

And as to the second Article in relation to the Cursing, it is positively offered to be proven, not in single Acts, but by a tract and habit of cursing his Father in the most abominable Termes imaginable.

As to the third Article in Relation to the Murder, that this matter may be clear, & ut constet de corpore delicti, these undoubted Qualifications are of­fered to instruct, that Sir James Standsfield was murdered and strangled, and that he did not drown himself. 1 ^o. It is offered to be proven by the Mini­ster; that was that night in the House, that long after ten a Clock at night, and that Sir James had retired to the Chamber, where he lay a lone, the Mini­ster heard the confused Whispers, Murmurs, and Noise of several persons, both Men and Women, which afrighted him, and that he heard the noise go [Page 11] away by the back-side of the House, which leads directly to that Pool where Sir James his Body was thrown in the Water.

2 ^o. Sir James's Body was found swimming above the Water, and albeit it appeared by the Ice upon the top of his Cloaths, that he had been several hours in the Water, yet there had no Water entred into his Body, which is a demonstration, that he was dead before he was thrown in the Water; for a person thrown alive into Water drawing in of Air and Respiration, being in the Water, he must draw in Water, and if the person drawes in as much Water as fills his concavitie, he becomes heavy, having so much more weight of Wa­ter, and therefore he sinks; But if a person be thrown dead into the Water, when the Clap of his Throat is shut, the Water cannot enter, and there be­ing so much emptiness, the Body is light and supported by more parts of Water, than the gravity of the Body can depress. 3 ^o. There being several Chyrurgions and others sent out by order from Authority to take up and in­spect the Body; to see whether there was any evidence of Strangling, or o­ther Symptoms of Murder upon the Body: It did appear to all these per­sons who did depone before a Committee of the Privy Council; That from the one Jugular Vein to the other round the Neck, there was a tumour of congealed black bruised Blood, three inches broad, and that there was con­gealed Blood in the Throat, upon which matter of Fact, the Colledge of Phy­sicians have given an unanimous Testimony in writing, that Sir James Stands­field was Strangled and not Drowned: And the Deaconry of the Chirurgi­ons being conveened, have emitted a Declaration in Writing, concurring and agreeing with the Report of the Physicians; So that it is as clear as the Light of Day, that Sir James Standsfield was murdered.

2 ^o. For the Qualifications that the Pannal was the Murderer, or accesso­ry to the Murder of his Father, these clear evidences are offered, which makes his Crime without possibility to be palliat or denyed. 1 ^o. It is notorious that the Pannal is a most debauched, vitious, pernicious Person, and has been Prisoner or condemned to dy in all the places or Societies he ever haunted; He entred a Souldier in the Scots Regiment where he was condemned to die at Treves, but made his escape, and his being in Prison, in the Marshal-Sea-Prisons, Orleance, and Brussels, (which makes the Circuit of his Travels) are not denyed; and his profligat life and constant drunkenness, since he came to the Prison, is offered to be proven by the Keepers: and as it is unnecessar to trace all his Debauches; so there is one material point offered to be pro­ven, That upon the least provocation either by Man or Woman, the Pan­nal used to swear by horrid Oaths, that he would take their lives, though he should die in the Grass-mercat for it.

3 ^o. Sir James Standsfield for these Debaucheries having disherished the Pannal, and disponed his Estate to his second Son: It is positively offered to be proven, That in the N [...]gate of Haddingtoun, in James Smith's House, the Pannal being told, that his Father would disherish him, he with horrible Oaths vowed to cut his Fathers throat.

And whereas it is answered to this qualification, That the saying that a Son would cut a Father's throat, is but a remot circumstance. It is reply­ed, That the Law, and all Lawers do agree, That Minae praecedentes & dam­num sequutum, is a most pregnant qualification of that party's Crime, especi­ally where the Threats were to cut a Fathers throat, which of it self was so horrid and unnatural a Villany, that it cannot be doubted he who durst vow it, wanted but an occasion to act it. And it is acknowledged, that though this be the clearest presumption, yet per se, it is not full probation: For though the Son had both vowed it, and resolved it, yet by an accident he [Page 12] might have been prevented; but the presumption at least lays the burden, that except the Pannal could condescend, and document, that some other Person killed his Father, he must be repute the Murderer.

2 ^o. It is offered to be proven, that Sir James Stansfield who was a Per­son of eminent sobriety, and veracity, did declare to several persons, that his unnatural Son had attempted his life, and offered violence to his person, and particularly, that he had pursued him on Horse-back, and fired Pistols on him; and that same Friday before Sir James was Murdered, he did de­clare that it was not his Debts, or any thing under Heaven that troubled him, but that his Son, and Family were plotting and contriving his de­struction, and the next night he was murdered.

3 ^o. It is offered to be proven, that the Pannals Mother declared, that her Son had vowed to be his Fathers death, and that he was a vindictive Person, and that she did apprehend he had murdered him. So as to this Ar­ticle, there is a concourse of the Pannals own Oaths, to murder his Father, and of his Father and Mothers Declarations, that he had attempted, and was still plotting the same.

The second Qualification is, that that Saturdays- night, Sir James Stans­field came home: The Pannal would not come where his Father was, either to Supper, or Prayer, and being expresly desired by several Persons, to go to his Father, and speak with him: He declared, (that same night he was murdered) he could not endure to see, or look upon his Father; and he had been all that day closs with Thomson and his Wife, and Janet Johnston. So after ten hours at even after the Family was gone to Bed, he came out to Thomsons House, which is hard by the Gate, and there in presence of Thomson, his Wife, and Jannet Johnston, he declared that his Father would neither give him Money, nor Cloaths, and cursed his Father, and declared that he would shortly make ridd of him, which agrees with what he had several times said in other Companies, that he was to be Laird before Christ­mas and that he was shortly to be Master of all, and none could think how soon. As also shortly before Sir James's Death, the Pannal's Mother falling in swound, it was said to him, Philip, ye will shortly want your Mother; to which he answered, by God his Father should be dead before her; And eight days after, his Mother falling again Sick, he repeated the same words, whereby it is evident the Murder was deliberate and determi­ned.

3 ^o. On the Sunday morning, before Sir James's Body was found, Philip came to the Minister's Chamber, and told him that his Father was gone out in the night, and that he had been searching for him about the Pools, and water side; and when the Minister reproved him for making such insinua­tions against his Father, he laughed at him, and went away to the Pool, and stood looking upon his Father in the water, but made no Discovery; and thereafter a stranger coming by upon the High-way likeways, seeing Sir Jame's body in the water, he came back and discovered the matter; at which Philip seemed surprised, and told that he had seen his Father's Body in the water before, but he did not think fit to be the first discoverer, which shews, that he was conscious of his own guilt; other wayes upon the first sight of his Father in the water, he would have gone to him, but on the con­trary, he never laid a hand upon his Father's Body, either to pull him out of the water, or to carry him into the House, for the dread of some extraordi­nary discovery, and did not allow the Corps to be brought within his Fa­thers gates, but caused carry the Corps to the Wake-miln, where to cover the appearance of Strangling upon his Body, he entrusted Jannet Johnston [Page 13] with the care of woonding him, who was known to be a person so odious to Sir James, that he could not see her for her baseness with the Pannal, and she did acknowledge, that she had not been for three quarters of a year within the House before; and yet this infamous Strumpet, who has been Tortured by order of the Privy-Council, as Accessory to the Murder, chiefly intrusted to see the naked body, and the cloaths put on.

4 ^o. The Pannal did refuse to send for a Chyrurgion, and to let his Father's Body be sighted, though the Minister, and others did expresly demand it; and the English-men in the Manufactory, who were acquainted with the Crow­ner-Laws, they made a mutiny anent the Burial, till the Corps were sighted; yet the Pannal caused bury the Corps that same night without shewing them.

The Corps being raised by order, and incision being made, whereby the Strangling did clearly appear, and the Corps being dressed clean, and Linen put on, there did appear no blood; but to take off all suspition, the Corps were lifted up, and the Night cap being wrong put on, it was altered and changed, and thereafter the Corps were laid down without any blood upon the Linen; and the Pannal (who to this time had never touched his Father's Corps) being required to assist to lift the Body into the Coffin, having taken his Father by the right side of the Head with his left hand, James Row bear­ing the left, the Pannal's hand was altogether blooding, as if his Hand had been put in a Vessel of Blood, which notwithstanding of all his Impudent resolution to the contrary, had that horrible impression, and conviction upon him, that he let his Father's Head fall to the ground, and cryed out, O God, and run away and went to a Desk in the Church, where he lay groaning and in confusion, but durst never return to touch the Corps, and as there can no na­tural reason be given, but an ordinar and wonderful Providence of God, in this kind of discoveries of Murder: So the Fact was never more evident, and sure, though half a dozen of Persons were bearing the Corps, no mans hands were bloody but the Pannals, and the Corps being two intire days in the Grave, in that Weather and Season, the Blood by the course of nature was become stagnat and congeal'd, so that the former tossing, and lifting of the Corps, and even the incision itself had occasioned no such effusion, but only some water or gore; but upon the first touch of the Pannal the Murderer, there appeared abundance of liquid florid Blood, and though this per se might not be sufficient, and as Mattheus is cited, it should not inferr Torture, yet Mattheus acknowledges that most part do sustain this, as a violent pre­sumption oft times experimented, yet in his opinion it is not sufficient for Torture, Because Torture being in it self a punishment, it cannot be used, except where there is semiplena probatio, or where the Conscience of the Judge is satisfied, as to the truth of the Crime, and therefore uses an extraordinar course, to extort an confession, which proves that this presumption is semi­plena probatio per se according to their own grounds.

And whereas it is alledged, that Capital punishment cannot be infered from conjectures, but from clear and positive testimonies. It is answered, that the Lex. vlt: Cod: de probationibus, clearly states that probation is either, Testibus, tabulis instrumentis documentis & indiciis. And Mattheus states a particular title upon this single question, Cap. 6. Titulo 15 deprobationibus, and does most positively determin that Crimes are to be proven Documentis, Argumentis & Indiciis. And it is most evident, that the probation which arises from the nature of the thing, which is incapable to be soffisticate, or imposed upon, as Witnesses may be, that kind of probation is the surest, be­cause it is always the same, and admits no variation: It's true, and it is ac­knowledged that Argumenta & Indicia must be clara & evidentia, and pro­bation [Page 14] being Quod facit fidem Judici, every mans experience tells him, that the complication and conjunction of so many evident qualifications, though none of them per se were sufficient, yet being all of them joyned, it induces a greater certainty, than two Witnesses positively deponing upon the Fact. And therefore the evidence of the probation belongs to the Inquest, and the relevancy that these Articles conjoyn'd, or any part of them are sufficient to infer the Crime, belongs to the Judge.

As to the Presumptions offered for the exculpation of the Pannal, they are not at all relevant; for though so horrid a Murder is not to be presumed a­gainst Nature, yet being proved, or so strongly evinced, it does but con­clude the Pannal's greater Guilt; and suppose that Sir James Standsfield was formerly Melancholy, and had been Frantick in the year 1679, yet it is known he recovered his Health, and was of a compos'd, sedat temper of mind for many years thereafter, and was as capable and diligent about his Affairs, these many years, as he had been formerly, and was so considered and employed by the wisest men in the Kingdom; and at the time of his Death there was no Sickness, or returning of Frenzie upon him, but all that Week he had composedly done his Affairs; and did upon the Saturday, when he went Home, discourse rationally upon all the Subjects that occur­red: But it being so clearly documented and proven that he was Strangled, it is a ridiculous conceit, and there remains no possibility that after he was Strangled, he walked out and drowned himself. And as to that Presumpti­on, that the Pannal rendered himself Prisoner, it was indeed suitable to the rest of his Impudence, and he did not render himself till after the Order to apprehend him was intimate to him, when he could not Escape, and when he was under Observation, and there did not want Project in fixing upon this Impudence when he could not Escape, as an qualification of Innocence, that he would render.

Sir David Thoirs without repetition of the Replyes made by His Majesties Advocat, doth make his Duply to the foresaids Replyes, and every mem­ber thereof, in order as follows, viz.

TO the First, Anent the Treasonable Words, the Pannals Procurators oppon their former Answers, and the Act of Parliament whereupon that part of the Ditty is founded, being only in order to such Treasonable Speeches advisedly spoken. The constant tract of the Pannal's life, in drink­ing his Majesties good Health at all occasions, and offering to adventure his life in his Service in the last Rebellion, sufficiently demonstrats, that if any such Expression did escape the Pannel, as it is denyed, the same was only rash and unadvised, and not deliberate and advised, as is required by the Act of Parliament, to infer the pains libelled; and the qualifications added by my Lord Advocat, bearing, that the Pannal did conjure the persons then present to Secrecy, demonstrats, that the Pannal was ex incontinenti hearti­ly sorrowful and penitent for the same. And it's clear by that excellent Law of the Cod, the words whereof are, Si quis Imperatori maledixerit, si ex insania miserando, si ex temeritate, & petulantia temnenda, si ex animo in­juriandi ad principem remittendum, which demonstrats, that by the Com­mon Law, such an rash and unadvised Expression was never to be laid hold on to infer a capital Punishment, where the Person alledged, expresser there­of, was not otherways suspect of Disloyalty.

2 ^o. Repeats the Defence as to Crimes alledged committed abroad, and it were against reason, and equity, that persons for one and the self-same Crime, should be subject to the punishments of several Jurisdictions, where [Page 15] the punishment of the saids Crimes are different: But seeing my Lord Ad­vocat declares he hath no Probation for these alledged Crimes, but Certifi­cats and Affidavits, they cannot be obtruded as a part of the Libel, because the saids pretended Certificats and Affidavits, are neither insert in the Libel, or given out to the Pannal, and all Crimes are to be proven testibus, non testi­moniis; and if the custom of Affidavits should be introduced in this Court, all Pannals (how innocent soever) might be murdered, by being deprived of their unanswerable Objections against the Granters of these Affidavits, &c. and therefore they cannot be sustained as a qualification to load the Pannal, or make the Inquest have a prejudicat opinion of him.

3 ^o. As to my Lord Advocat's Reply anent the Act of Indemnity, the for­mer Defence and Act of Indemnity is opponed, and bears expresly Murders, Robberies, Slaughters, and all other Crimes committed against His Majesty, and Laws of the Kingdom, either by Word, Writ, or Deed, which undoubt­edly excludes all alledged Crimes, said, done, or committed by the Pannal before that time, and this favour & gratia principis, is to be ampliat and extended, and not restricted, and all His Majesties Judges and Officers of State are commanded to sustain the same, according to the most ample In­terpretations for the Pannal, that the Words will allow.

4 ^o. The pretence that the Pannal was of the quality of a Burger, or a Ba­ron, is most irrelevant, the Pannal having no visible Fortune at the time, and as my Lord Advocat himself acknowledgeth, no expectation of any Fortune whatsoever, so that if Barons, Burgars, Liferenters, Woodserters, and likewise these who have nothing in possession at the time, shall be seclu­ded from the benefit of that Indemnity, it is scarce intelligible, to whom, and for what cause the same was granted. 3 ^o. And as to that part of the Reply, bearing, that this was a privat Injury, and so not comprehended within the Act of Indemnity, the former Defence is opponed, and all pretence of pri­vat Injury was taken away by dissimulation or death.

As to the pretence that the Reconciliation can be no defence against the Libel, as to vindicta publica, and that the Letter whereupon the Defence is founded doth not import a Dissimulation. It is Duplyed, That the Act of Parliament being an Comminatory Law, and principally intended in favours of Parents, the same was never yet made use of, and it were very hard to make use of the same to deprive a Parent of his Child, for any rash or passio­nate Expression, especially where upon Repentance the Father had remitted the Injury; but the Father being in effect Judge of the Injury, his remitting the same ought at least to Assoilzie the Child, from any capital conclusion. And as to the alledged habitual Cursing, the same is denyed, and the former De­fence founded upon the Act of Indemnity is repeated and opponed, and the Libel is opponed, which doth not bear habitual Cursing, but particular Acts at particular Times.

And as to the Qualifications alledged by my Lord Advocat, for clearing that the Defunct Sir James Standsfield was murdered, the Pannal is truly sor­ry, that for his own Defence, and for clearing of his own Innocence his Lawers should be necessitate to plead any thing relating to his Fathers Infir­mities, or way and manner of his Death. But it is duplyed, That the whole Presumptions adduced by my Lord Advocat are allanerly fallacious Conje­ctures, and can neither be separatim, or complexly relevant to infer any such thing, because 1 ^o. That the Minister did hear a whispering noise, and was thereby terrified, his Terror and Consternation having (as he himself pre­tends) put him in a Disorder and Confusion, he was thereby rendered inca­pable to observe or judge of any thing that happened. 2 ^o. That the Body [Page 16] was swiming above Water, imports nothing, the Defunct having a great Coat of thick Cloth about him, which was sufficient to keep him floating a­bove. 3 ^o. The pretence that there was no Water in the Defuncts Body when the Chirurgions visited the same, imports nothing because the Defuncts Body having been several times stirred before that time, by which the water might have run out, as it actually did (in case there was any water within it).

4 ^o. Albeit where a Man is drowned unwillingly, and endeavors to breathe, so long as he can, his breathing may suck-in the Water; Yet if a Man intend to drown himself, he will certainly endeavour all means for quick dispatch of himself, and thereby keep in his Breath, and the keeping in of the Breath after that manner was sufficient, both to keep the Body floating, and the water from coming in.

5 ^o. To put the matter beyond all question, the Defunct was lying in the water a considerable space from the Bank; And albeit the Ice was not so strong as to have carried a Child, yet the Ice was whole and intire betwixt the Defunct and the Bank, which demonstrats, that the Defunct had jump­ed in from the Bank to that place where he was lying. 6 ^o. As to that pre­tence, that there was Blood about the Defuncts neck, all lapper'd and bruised before incision was made, the Defunct being pulled out of the water, by an great Cleik, the touching of the Neck with the Cleik, when his breath was just gone out, was sufficient to have made the Blood where that part was to lapper and congeal. 7 ^o. As to the declarations of the Physicians, and Chi­rurgions, they are only declarations ex auditu, and upon report of one or two Chirurgions, and hath no foundation, but the ignorance or knowledge of the saids two Reporters; neither can any such declarations be obtruded against the Pannal, because not given out with the Libel; But whatever may be in­ferred from these Presumptions, whether the Defunct was Murdered or not, the same does not concern the Pannal, unless his accession to the Murder were instructed, as is impossible it can be.

As to the qualifications alledged by my Lord Advocat, for fixing the Murder, or accession thereto upon the Pannal; It is duplyed to the first, That the Pannal's alledged vitious Life, and the story at Treves, his being Drunk in Prison, and Threatning to cut Throats upon small provocations, the same are extrinsick to the Lybel, and cannot be respected. 2 ^o. As to the alledged threatning used in James Smith's House, the Lybel is op­poned, bearing these expressions, to have been used in the year 1684, or some year preceeding; And therefore the former defence founded upon the Indemnity, is repeated, and opponed. And whereas my Lord Advocat pretends, that minae praecedentes cum damno sequuto, is sufficient either to fix the guilt upon the Person who used the Threats, or at least to burden him with the probation, that another commited the Crime. It is Duplyed, 1 ^o. That My Lord Advocat's Position is absolutly denyed, unless he can in­struct some other positive accession against the Pannal, and these pretended Threats being taken away, not only by the Act of Indemnity, but likeways by dissimulation, which is not only offered to be inferred from the Letter made mention of in the Defence, but likeways by the Defuncts owning, re­ceiving, intertaining, furnishing, and providing for the Pannal, in every thing suitable as his eldest Son, the same doth undoubtedly take away all pretence that can be founded upon threatning, so many years preceeding; and by no Law can the Pannal be burdened to prove who were either A­ctors, or in accession to his Fathers Murder.

As to the 2 ^d qualification bearing, that the Defunct said to several Per­sons, that the Pannal offered to invade him (denying the same) the Fa­ther's [Page 17] assertion could not infer a Crime against the Pannal, unless the Crime it self were otherwayes proven by witnesses, and the same is Libel­ed to have been said by Sir James before the Act of Indemnity. And Sir James's other assertion, that he was in trouble, for fear of prejudice from his Family, cannot infer a Crime, especially against the Pannal; and far less can it be proven by the Relict and the other Son, who in Sir James's ap­prehension were designing mischief against him, and for their own vindica­tion, they would certainly depone partially against the Pannal. And the same is repeated against the other expressions alledged spoken by the Mother; And witnesses cannot be received to prove what another witness said.

As to the pretence, that the Pannal refused to sup with his Father the night before his Death. It is Duplyed, the Pannal was not at all in use to sup, except on Sundays night. And the Pannal had no kindness for the Minister, Because he and others of his Gang, had endeavoured to keep up discord be­twixt him and his Father.

As to the alledged Bleeding of the Corps, the former Defences are op­poned; And albeit the Pannal did help to lift his Fathers Corps before the incision, yet no Blood did appear till long thereafter that the incision was made, and the Pannal did fall to grip that part of his Father's Head where the Incision was. So that the Blood falling from the wound, can neither be a Ground nor Presumption for guilt; And though the Pannal was surprised to see his Father's Blood, Yet the same did only proceed from natural Duty and Affection, and not from any apprehension of Guilt. And these qualifica­tions being all Libel'd and Debated upon, It is humbly desired for the Pan­nal, that the Lords of Justiciary would give a separat Interloquitor upon every particular qualification.

Sir Patrick Hume for the Pannal adds, That as to the point of Treason, It is offered to be proven, that it was when he was Drunk, and after Cups, and is so presumed, especially it being, as it is acknowledged by the Libel, in a Drunken company.

2 ^o. As to the Act of Indemnity, It is extended to all Crimes except the Arch-bishop's Murder, and exceptio firmat regulat, &c. And the Act bears not that Clause excepting other Crimes, which uses to be excepted.

3 ^o. As to the qualifications condescended on in my Lord Advocat's an­swer, either they are Libel'd, and so oppones the former answer; And if they be not Libel'd, they cannot be considered as qualifications.

4 ^o. Whereas it is alledged, That the Pannal was in use to threaten to cut Throats, when in passion, the Argument is retorted: For though he threat­ned, nothing followed; And so his Threatnings were but verba jactantia.

5 ^o. As to the citation out of Mattheus, that parties may be punished upon presumptions. It is answered, That the Case there stated is where the Per­son who committed the Slaughter, was apprehended in the place where it was committed, That he was all bloody and with a bloody Sword, àn­swerable to the Wound, and that he became pale when he was apprehen­ded, and that he made no answer, but in terrour fled away, which are such Acts as do evidently make appear the Slaughter, and could admit of no o­ther construction, but that cannot be pretended in this Case, where all the Presumptions are remote and extrinsick, and even in the Case instanced by Mattheus, and others of that Nature, they are only to take effect in order to an Arbitrary, but not a capital Punishment, which is the opinion of all Law­ers, who ever wrote upon the subject, and particularly Muscard, de prob: con­clus. 123. Numb. 30. and 31. where the question is stated, an plures praesum­ptiones conjunguntur, in order to inferr a capital punishment? And he con­cludes [Page 18] in the negative as a general conclusion by all Lawers, but only to in­ferr an arbitrary Punishment.

As to the bleeding of the Body, It is offered to be proven, that the Pannal touched his Father's Body before the Incision, and it did not bleed.

THe Lords, Justice General, and Commissioners of Justiciary, Having considered the Libel, pursued by His Majestie's Advocat against Phi­lip Standsfield the Pannal: And the first part thereof, anent the Treason li­bel'd, they find the samen as it is lybel'd, relevant to inferr the pain of Trea­son.

And as to the Pannal's cursing of his Father, mentioned in the Indite­ment; They find these Expressions, or either of them, viz. the Devil take him, the Devil rive him, God damn him, relevant to inferr the pain of Death: And repells the Defence founded upon the Act of Indemnity, and finds the Pannal is not under or below the quality therein specified.

As to the Pannal's murthering of his Father mentioned in the Inditement, they found the Libel as it is lybelled and qualified relevant to inferr the pain of Death, and remits the same with the qualifications lybel'd to the knowledge of the Assise, and allowes Witnesses to be led for the Pannal's proving his Father to have been Melancholy the day before the committing of the Murder, and remits to the Assise to consider the Import thereof, if it be proven, and repells the whole other Defences proponed for the Pannal.

The Lords continues the Dyet against the said Philip Standsfield, till to morrow at two of the Clock in the Afternoon: And ordains him to be car­ried back to Prison, and the Witnesses and Assisers to attend, ilk Person under the pain of 200 Merks.