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Publications of the Scottish History Society, Volume XLIX.
The Records of the Proceedings of The Justiciary Court of Edinburgh, 1661-1678
Volume II., 1669-1678
Edited by W.G. Scott-Moncrieff, F.S.A. SCOT., Advocate, Edinburgh, 1905

Edinbr. 5th and 6th ffebry. 1674.
All the ffive Commissioners present in the Court.

The said day William fferguson, George Morison, John CROOKSHANK, George Guthrie, William Kennedy, John Pearie, William Gordon, militia soldiers in the Earl of Erroll's Regiment, indited and accused at the instance of the King's Advocate and the relict and children of Andrew Keith, servant and grieve to Dame Elizabeth Crichton, Lady ffraser his Informers for the slaughter of the said Andrew when he was about his Lady's affairs attending the Lady her ground upon the lands of Cairnbulze and attending the servants there on the 6 June 1673, by giving him an wound in the neck with a sword and diverse strokes in the head with the butts of their musketts, and another wound in the belly, through which his bowells gush'd out, and after he had removed from them a litle distance, by giving him two wounds in the back with a durk, one of which came through his belly, after which they did beat his wife and daughter, and did wound his daughter with their swords to the effusion of her blood, because they asked mercy to the Defunct, who was a man of sixty years of age.

Sir George Mackenzie for the pannells alledges, that they cannot upon this lybell go to the knowledge of an Assise as guilty of the crime of murder, because (always denying the killing of the said Andrew Keith) it is alledged they might lawfully have killed him in sua far as they were in the necessar execution of a lawfull command, they being soldiers in Errol's regiment, and having been commanded by Lieutenant T___,  their Lieutenant to go and poynd the lands of Cairnbulge belonging to the Lady ffraser whom the defunct served, for the absence of her soldiers from the Militia, in the execution of which command they mett with a most illegall opposition from the said Defunct Andrew Keith and others, who invaded William Gordon, one of the soldiers, and wounded him in the fforehead with a sword, and who also invaded the whole pannells with iron grapes, drawn durks and other weapons. And the pannells being in duty obliged to prosecute the poynding and in hazard of a Court Marshall if they had desisted from opposition, because of their command, what they did was most lawfull and cannot be accompted murder, since the Law of Arms and Custom of Nations, the necessity of war and military discipline allows killing and such as resist soldiers in the like commands.

This at most is but an excess of that duty which is incumbent upon soldiers in such cases, and wanting all forethought fellony and design of murder, and being imputable to another lawfull case, it is at least only punishable quoad excessum, and consequently cannot inferr the pain of Death.

Replys Sir George Lockhart for the pursuers, That he repeats and oppones the Dittay, and the murder lybelled was a horrid and cruell murder, committed with all the other circumstances and aggravations condesended on, and specially that after the Defunct was wounded and faintly making away with his bowells in his arms, he was most cruelly and unnaturally pursued and followed by the pannells and wounded. And after he was lying upon the ground he received severall strokes. And as to the pretence the pannells were soldiers and had warrand from the officers to go and poynd and were in actu officij and might have killed, its answered the pretence is most unwarrantable and irrelevant, ffor

1. altho the pannells were soldiers and were able to produce any sufficient warrand to poynd, and had been deforced in doing the same, yet its mandatum and downright contrary to Law to assert that thereupon they might have proceeded to the committing of the murder lybelled, and which not being delictum milltare but delictum commune is not permitted to soldiers nor any other tho they had been specially warranted and authorized to poynd, but law in case of such resistances and deforcement has introduced and established proper remedies, but has never armed private persons to proceed to such extremity as to kill and committ murder, albeit any resistances could be made appear or proven.

2. Its no ways relevant to pretend that they being soldiers had a warrand from their officers to poynd, even so much as to sustain the lawfullness of the poynding, in respect the Act of parl. justly foreseeing the irregularitys and inconveniences that would inevitably have ensued if either soldiers or officers had or could have pretended that they had power to poynd his majesty's subject. The parl. has thought so far fitt to secure the just interest and fortune of the people as expresly to provide all such poindings upon the accompt of Deficient should be warranted by a warrand under the hands of the commissioners of Militia, whereof two should not be officers, and no such warrand was or can be produced. And if the parl. thought fitt so far to secure the interest and priviledge of the people, it were a strange supposition to think that debauched and drunken militia soldiers should in their fury and madness invade and committ murders upon his majesty's peaceable subjects. And the truth is the pannells were so transported with rage and fury that they killed the ffather, wounded the daughter of thirteenth or ffourteen years of age, wounded the mother and working horses and committed the other aggravations lybelled. And whereas its alledged that it was only an excess and that there was no precogitate malice, its answered that pretence is groundless and the murder lybelled was absolute and de sua natura illicitum. And it is not the case of excess that the law considers, which is only where parties were ab initio unjustly invaded and were in the case of self defence, but did a litle exceed in eo moderamine that law requires in the priviledge of self defence, but what does that concern the case in question, where the murder lybelled is condescended upon to have been committed by invading, beating and killing the Defunct and wounding the other persons lybelled, And that there was not precogitate malice is of as litle weight in regard the law of this kingdom considers nothing except it were the case of casuall homicide et dolus et precogitata malitia is ever presumed, and needs not be otherways proven but hoc ipso that the murder was voluntar, law and reason understands it as homicidium dolo commissum etiam in rixa commissum is punishable with the pain of death et paena ordinaria, even tho the occasion had been altogether sudden and accidental!, and that there had been no procogitate malice before hand, which our law regards not, seeing homicidium voluntarium, and yet the murder lybelled is not so much as in the case of homicidium in rixa commissum, it being lybelled that the pannells came to the place and unjustly invaded the Defunct and wounded and killed him, and committed these great transports of excess of rage and fury as does evince and make appear that they had insatiable thirsting after the Defunct's blood, and which was not otherways satisfyed but by killing the Defunct and wounding the other persons lybelled.

Duplys Sir George McKenzie That as the Law considers a malitious design et dolum in all crimes, so it is peculiar to the crime of murder to require this in a more eminent degree called by our Law fforethought fellony, and tho where an unlawfull deed follows such as killing, that is always presumed, yet the presumption is fully taken off in this case by ascriving this killing to another and to a lawfull cause, ffor as it is very well known that thir poor people nor none of them had not the least quarrell, nay nor acquaintence with the person killed, so they could have nothing to irritate them against him. And upon the other hand they being soldiers lawfully listed, they were warranted and by that warrand forced to poynd, and this warrand, as it impowred them to poynd, so it impowred and authorised them to do everything, without which this poynding could not become effectuall. And it were against not only the Law of Arms but the interest of the Commonwealth for whose defence the Militia is so carefull and chargeable raised to forbid much less to punish those who are obeying the orders necessar for its preservation. And if a Captain should desire to bring him any person prisoner, or to drive goods for him, or to bring him any thing else, the soldier is not obliged, nor dare he dispute the lawfullness of the command. And whereas its pretended that there may be other remedies then to kill, its duplied that private soldiers can use no remedy, but blindly and implicitely obey, nor are they obliged nor dare return and say they were opposed, for that would not exoner them, for they are ratione officij bound to putt the command in execution, except they be impeded vi mqjore, which can only defend them.

And if it were otherways, soldiers should still find pretexts never to obey, and these against whom they are impowred might by opposition render the command ineffectuall, and soldiers are necessarily forced and impowred ratione officij even to proceed to Killing, for if the persons who resist should absolutely refuse to obey, being commanded in his Majesty's name, they in so far oppose his Majesty's necessar authority, and there is no possibility of putting a command in execution except it were known soldiers had this power, for they could stand in aw of nothing else. And tho the life of a man be very precious, yet it is far less valued and considered then the generall interest of the Commonwealth and the preservation or order therein, to which order all men owe their lives et sibi imputent to the opposers, who are authors of their own ruin, and can only blame themselves, so that this is no inconveniency to the Common wealth, neither has the Law any regard of it, when its ballanced against the publick interest, which as it holds in all cases, so much more in this, where not only opposition was made, but wherein the Defunct and the rest were the first aggressors, and wherein the aggression and opposition was deliberate and resolved upon as a contempt of authority, in sua far as its offered to be proven that when they heard the soldiers were coming, and when they were come, the defunct Keith and one ffalconer the chamberlain and the rest, without giving any reason why they would not give up their poynds or pay their nines, did swear they would lye in the green first, and immediatly did draw and invade, and by the invasion did wound the pannells and put them in hazard of their lives. And where its pretended that the order was not valid because not subscribed by two members of the militia beside the Lieutenant, its answered,

1 That for what they know the warrand was lawfull, and its offered to be proven that it was torn violently from them, and they being illiterate and ignorant persons they knew not who subscribed it, but if it be proven it was taken from them, it must be produced, and therefore unless it appear upon the production that it is unwarrantable, this paper as all other papers, must be presumed to have been solemn. Likeas its offered to be proven that by vertue of the same warrand they received obedience from Inneralachie and severall others the same day.

2 The Defunct nor none else contraverted this informality of the warrand, which if they had done, they had returned and got a better warrand, so that they cannot ascrive their disobedience to this informality, nor were their ignorant soldiers in mala fide thereupon.

3 The soldiers are not obliged nor dare they debate informalities with their officers, and the officers who gave the warrand are only liable upon this accompt, nor does the want of an informality in a warrand authorize the people to disobey for else they would be judges of their own cause and judges of when and how far they should obey, but they should have gone along to the officer and have shown him why they were not liable to be poynded or to be poynded by his sole warrand or had their redress to the Commissioners of Militia, who are judges in that case, but summarly to disobey, swear, wound and invade was most unwarrantable, and if such courses were allowed the militia, wherein people can hardly be persuaded to serve, will absolutely dissolve ffor they must be killed by officers, people or judges in case of obedience or disobedience.

And whereas its pretended that they killed the man after he was fallen and could not resist, its answered, that they being in actu licito and the opposition being unlawfull as said is, the wounding when the person could not resist cannot be considered, for after a fray or tumult is once unlawfully begun but much more when its offered to be proven that even the time of this wound the pannells were sett upon by many who putt them in hazard of their lives, so that they could not consider in that heat and furor militaris, just how much violence was necessar, but the beginning of everything is to be considered, especially agt. those who versabantur In rea illicita and in favours of those who were in execution of a lawfull command. And whereas its pretended that this is contrair to the lybell, its answered that all criminall lybells are still so lybelled as that the murderer is said upon malice and design to have first invaded and killed, so that if this were sufficient to cutt off exculpations, there could never an exculpation be made use of, for the lybell is and still might be made to preclude it, but such is the favour granted by the Law to pannells in defence of their lives, that it considers more in ciminalls the safety of the people than the nicities of form, and Judges doe there admitt the lybell and Defence to probation, that so the exact and full truth may be known, and that the force of the Depositions on both sides may be equally ballanced, by the proponing of which Defence it is designed that the Defence should result upon Self Defence in the way and manner @represented, viz. that the pannells were first invaded with durks, swords, grapes, etc. and other invasive weapons.

The Lords ffinds the killing and slaying of the Defunct, Andrew Keith, and art and part thereof relevant, and remitts the pannells to the knowledge of an Assise, with this Declaration, That after the probation is led, the Lo : will consider (if need beis) how far the concourse of any of the pannells does amount to art and part of the said slaughter. Also the Lords ffinds the first member of the first Defence proponed for the pannells ffounded upon the order for the poynding, not relevant, and ffinds the Defence of Self Defence relevant and remitts the same to the knowledge of an Assise.

The Advocate for probation adduces severall witnesses, and Verdict of the upon the 6 ffebry. the verdict of the Assise is returned by the mouth of Thomas Wilson their Chancellour, whereby they all with one consent ffind it proven by the Depositions of these witnesses that fferguson, Gordon, Morison, CROOKSHANKS, and Pearie were all of them guilty of the slaughter of the Defunct Andrew Keith, and that fferguson was more guilty then the rest, and assoilzied Guthrie and Kennedy, because the lybell was not proven against them.

The Justices decerned Willian fferguson to be beheaded on the 18th instant at the Grassmarket of Edinbr' and continued the pronouncing of Doom against the rest till the 16 inst.