Series 1 > Records of the Proceedings of the Justiciary Court Edinburgh, 1661-1678 > Volume 2, 1669-1678

JUSTICIARY PROCEEDINGS
19
1670]
with John Hampden to be his second and to go alongst with
him to the Park of Edinbr and there the said William and the
deceast James Murray having drawn their swords, did furiously
and with much animosity fight and combat with the other, in
which Combat the said William did thrust the said James
through the body and did give him many other wounds whereof
he died, and so is guilty of the murdering and killing of the
said James, and of contraveening the Laws and Acts of Parlia¬
ment made against Murder and Combatting.
Mr. Patrick Home for the Pannell, alledges That he cannot
pass to the knowledge of an Assize upon this Dittay, because
he offers to prove that what the Pannell did was in his own
Defence and that the Defunct was the first aggressor and did
first draw his sword, and to evince this and that the Pannell
had no evil intention when he went out, but that he went Dueil.
to walk in the Park only. Its offered to be proven that he
went out without a sword.
Replys Mr. John Elleis, That he takes Instruments upon
the Defence as its proponed whereby the Slaughter is acknow¬
ledged, ffor hoc ipso it is alledged that the Pannell killed in
his own defence, it is acknowledged that he killed. 2° The
exception of self defence is no ways relevant to elude the Lybell
because self defence in law has never place but where the
aggression is so violent and sudden that neither it can be pre¬
vented nor resisted without hazard of the invader’s life, and
where that does not concurr no accession of the invaded, but
so it is the samen can not be subsumed in this case where it is
expresly lybelled and offered to be proven that the Pannell did
provoke the Defunct to fight, did go and seek for arms and in
fury went to the Park where he killed him, and it were against
all reason and of a dangerous consequence if the first drawing
of a sword should absolve the party in case of an appointment,
because by that means parties might appoint to fight and the
provoker himself might keep in his sword till the other should
first draw and take his advantage and kill him. 3° As to the
pretence that he had no sword when he went to the Park, the
same is no ways relevant seeing it is lybelled and offered to be
proven that at the time of the conflict he had a sword and did
kill him and the samen is a negative and contrary to the lybell.