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

20
JUSTICIARY PROCEEDINGS
[JUNE
Duplys Mr. Patrick Home for the pannel, that the
alledgeance proponed for the pannel stands relevant notwith¬
standing of the Answer, 1° Because by the late Act of Parlia¬
ment anent casuall homicides it is expresly declared that
homicide in self defence shall not be punished by Death, and
that notwithstanding of any laws or acts of pari4 or any prac-
ticque made heretofore or observed in punishing of Slaughter,
by which it is evident that in all cases where Slaughter is
lybelled without any distinction whither the same be com¬
mitted ammo deliberato or in rixa, et ubi lex non distinguit non
est distinguendum. And if the Act of Pari* should be other¬
wise understood it should be altogether elusory. 2° It is not
only clear by the for said act of pari4 but likewise by the
Common Law by whicli it is clear I. 3. ff. de Justitia et Jure
Ut vim, atque injuriam propulsemus. Nam jure hoc evenit, ut
quodquisque ob tutelam corporis suifecerit, Jurefecisseexistimetur,
and doth not make a distinction betwixt Slaughter committed
by way of Duel or otherwise. And likewise Julius Clams on
that subject is most express quod in omnem casum occidem
aggressorum se defendendo nunquam tenetur de occiso. And
whereas it is urged that self defence in this case cannot be
pretended because contrary to the lybell, it is duplied 1° That
granting there had been an appointment which is altogether
denied, yet it does not follow that the Slaughter was com¬
mitted dolo malo, because albeit the appointment might be
the occasion of his going there, yet it was not the cause of the
Slaughter. Just as if a man should send his servant to a cer¬
tain place and if he should be killed by the way, the masters
sending of the servant would be the occasion of the Slaughter,
but not the cause. Or if two persons should make an appoint¬
ment together, if when both came to the field one of them
should refuse to fight, the other should endeavour to kill him,
without all question if the person who refused to fight should
kill the other, it would be esteemed to be done in his own
defence. 2° Esto it were contrary yet notwithstanding the
self defence ought to be sustained being founded on the law
of nature and a positive law, for however in other cases where
Defences are only founded upon presumptions in law, if they
be contrair to the lybell they ought not to be sustained or