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Introduction
It seems to me that a short sketch of the administration
of Criminal Law in Scotland in former times would not be out of place by
way of introduction to this curious collection of trials now presented
to the members of the Scottish History Society. To those acquainted with
our modem criminal courts, superior and inferior, with their
well-defined jurisdictions and relative position towards each other,
there seems something like chaos when their attention is turned to any
such criminal record as the one before us. It deals with a period, when,
although the Court of Session had been over a century in existence, the
Court of Justiciary was still in the future, when mere local authorities
possessed powers of startling magnitude, and the interference of the
Scottish Privy Council in the administration of justice was a matter of
daily occurrence. We know nothing now of justice deputes, of serious
crimes being dealt with by municipal magistrates, or of special
commissioners being nominated to try particular offences. Again, nothing
is better known to us in the present day than our carefully developed
system of public prosecution, whether by Crown counsel or by procurator
fiscal, a system which works over the whole country, and deals with both
small and great offences, and one of which it may be said that we, as
Scotsmen, are justly proud. But in the seventeenth century we find,
alongside of State prosecutions, private prosecutions, and those at
which both public and private interests were represented.
From very early times there was in Scotland a high
official known as the Justiciar. He represented the king, who, however,
might, and sometimes did, preside personally in a judicial capacity. As
this Justiciar, known later as the Justice General, was the depute of
the king, so he in turn had deputes who could act throughout the
country. Provision was made for eight deputes by the Act 1587, c. 82.
Before the establishment of the Court of Session, the Justiciar and his
deputes were not confined to criminal matters, their civil jurisdiction,
however, being subject to the contcpl of Parliament, which, by means of
committees, really performed a considerable amount of judicial work,
including the decision of what would now be considered small debt
causes.
For a long period there were two Justiciars, one for the
north, the other for the south of Scotland, the river Forth being the
dividing line. Edward i., indeed, appointed eight, having made four
divisions of the country, and given two to each. In Queen Mary’s time,
however, there was a reversion to the old plan of having only one
official for both north and south. It was characteristic of our Scottish
way of doing things that the office originally conferred upon an
individual came to be vested in a great feudal family, and the duties
nominally exercised by the representative of that family. This state of
matters continued long after the institution of the Court of Justiciary,
and indeed down to 1836, when, by statute, the offices of Justice
General and that of Lord President of the Court of Session were united
in the person of a professional and salaried judge.
The deputes appointed to act on behalf of the Justice
General were either nominated by him or by the king. We find that
Messrs. Colville, Cuninghame, and Mackenzie, all gentlemen mentioned in
these Records, held royal commissions; and it would rather appear that
those who were in such a position were not limited to acting in the
absence of the Justice General, but could sit along with him and
exercise equal authority, whereas deputes appointed by him could act
only in his absence.
In addition to the judges so appointed, the Privy
Council, which was always at hand, and ever ready to interfere, was in
the habit of appointing certain assessors to the deputes, with whom,
says Hume, ‘they might advise concerning such difficulties as occurred
to them: or (shall I rather say) who might acquaint them with the views
of his Majesty’s counsellors and secure compliance with their wishes.’
The same writer has in the following passage well
described the state of matters which existed at the period when these
trials took place: ‘Under the old system, the Justice and his deputes
could hardly be said to maintain their rank as a sovereign or even an
independent court of law. On the part of the Privy Council, little
scruple was entertained of preventing their jurisdiction or obstructing
the channels of their justice, under various pretences and by
proceedings of different kinds. Sometimes, and this was the least
exceptionable way, in the shape of the trial of the accused before
themselves; but in the case of a conviction, remitting him for sentence
to the justice, who proceeded on the decree of Council as probatio
probata of his guilt. Sometimes (and this, though strictly forbidden by
statute, was often done in the case of slaughter and of witchcraft) by
granting special commissions of justiciary to private and unskilful and
often keen and officious persons for the trial of certain offenders or
crimes of a certain class. . In other, and frequent instances, in the
shape of what was then termed a precognition, being an inquiry, if such
it may be called, into the circumstances of the fact, set on foot at the
instance of the party accused, and at such a diet as he made choice. And
of this proceeding, according to Mackenzie, so manifold were the abuses,
that of the many persons who had applied to the Council for
precognitions, he had never known one who was brought to justice.’
It was in 1672 that the Act which founded the present
Court of Justiciary was passed, the new commission, which that Act
ratified, having been issued in January 1671. The most important feature
of this statute was the abolition of the justice deputes, and the
substitution in their place of the Lord Justice Clerk and five of the
ordinary Lords of Session.
The hereditary Justice General still retained his seat,
although he seldom occupied it. But a notorious instance of his
appearing, and that for a purpose, is afforded at a much later date than
the one we are dealing with. The trial of James Stewart in Aucharn for
the murder of Colin Campbell of Glenure in 1752 has been rendered
classical by the genius of R. L. Stevenson. The Duke of Argyll, as
Justice General, presided upon that occasion, when the scene of trial
was Inveraray, and the majority of the jury—judge selected— Campbells.
Although there was little but a bare suspicion against the accused, his
conviction followed as a matter of course. Argyll added insult to injury
by telling Stewart that he had had a most impartial trial.
Although the character of the Supreme Criminal Court was
distinctly improved by the substitution of regular judges for the
deputes, we find a reluctance still exhibited to have a bench quite
independent of royal control. The statute of 1672 did not confer office
for life, and successive commissions were issued containing the words durante
nostro bene placito. In point of fact, judges during the remaining years
of Stuart rule were removed and restored at pleasure.
It is perhaps fortunate that the local tribunals
throughout the country possessed such considerable powers. Because
although the new Justiciaiy Court was enjoined to hold Justice Ayres or
circuits, and the towns at which its diets were to be held were fixed,
it appears that no circuits took place in Scotland between the end of
Charles ii.’s reign and the year 1708.
We find cases contained in this Record, tried before a
court in Edinburgh, which were brought from different and distant parts
of the country. But the justice deputes had also circuit duties to
perform, and were expected to attend at least once a year at the head
burghs of the sheriffdoms, where they seem to have been recognised with
all the honours now shown to a higher order of judges.
The chief, at least nominally, of all the inferior courts
was that of the sheriff. This office, like that of the Justiciar or
Justice General, had in course of time become patrimonial and
hereditary, the duties being performed by deputes. Nor does there seem
to have been any provision, until the reign of George n., when heritable
jurisdictions were abolished, for the depute sheriff having legal
qualifications. Yet the sheriff’s powers were great. He was not only the
competent judge in all minor offences, but in the case of a murderer
taken red hand, as it was called, he could sentence to death, and did
so. Indeed, some great authorities held that the sheriff could try a
murderer, so long as the proceedings were concluded within forty days.
The magistrates of certain burghs are sheriffs within their royalty, and
we find the Lord Provost of Edinburgh presiding at a trial for murder so
lately as 1788. Murder was of course not the only capital offence in
those days, and the sheriff’s jurisdiction in such cases as theft
enabled him frequently to pronounce a capital sentence. Such a one was
given in 1785 by the Sheriff of Forfar for housebreaking.
But perhaps the local jurisdictions of the greatest
practical importance were those exercised by the lords of regality and
barons within the limits of their respective regalities and baronies.
The lord of regality had as great a civil jurisdiction as the sheriff
and a greater criminal. The latter was, according to Erskine,4 truly
royal.’’ In fact, treason seems to have been the only crime which could
not be tried in the regality court. Even the barons had a jurisdiction
practically as great as that of the sheriffs. Like the sheriffs, all
those judges acted through deputes.
As has already been pointed out, these trials reveal more
than one kind of prosecutor. In modem times the public official acting
in the public interests has quite superseded the private individual
seeking compensation or punishment for a wrong inflicted upon himself or
family. Crime may and has been viewed in two lights, as a wrong or
injury done to the individual, and as one done to the community. It is
obvious that in primitive times the first was the aspect most
considered, and hence the private prosecutor is always the first in
point of date. But as the community strengthened and government began to
assert its power, there arose the necessity for an official to represent
the public and protect its interests, for our law did not recognise any
right in the individual to demand reparation for a wrong done, not to
him or his, but to the nation. Hence crimes committed against the State
or the Church, such as treason, heresy, or blasphemy, early called for a
public prosecutor, and as times became less barbarous, even offences
against the individual were dealt with in the public interest, so that
they might not go unpunished through lethargy or inability to prosecute
on the part of the injured person. Therefor the King's Advocate or
Public Prosecutor could act even in cases which affected chiefly private
persons without obtaining any consent or concurrence from them.
While the private prosecutor had to show a substantial
interest, he could insist upon more than mere compensation or damage. He
was entitled to demand the full penalty which the common law or statute
imposed for the crime committed. Nor was the right of private
prosecution limited to the injured person. Near relatives, for example,
of a person murdered or ravished, could seek vengeance for the injury
done. But two things were, or came to be, necessary. After the
establishment of a public prosecutor, his concurrence, where at least
more than a pecuniary penalty was sought, was requisite. It might be
refused, and he might be compelled to give it, and we have one case
recorded in which the private prosecutor was allowed to proceed after
the Lord Advocate had withdrawn his consent. But the private person
could not present a libel at his own pleasure. Again, he had, under
statute, to find security to insist in the prosecution which he had
started. This was very proper. The indefinite confinement of accused
persons was a sore grievance at the period we are dealing with, and
there are indications of it in the proceedings now before us. The case
of Bessie Martin mentioned by Hume, who described herself as ‘ lying in
the thieves hole in a most miserable con-ditione starving for hunger and
cold,' was, we fear, not a singular one, and the Court had frequently to
order prosecutors to proceed with their processes, and to discharge
prisoners because no one remained to accuse them.
The title of Lord Advocate has long been borne by the
Crown Prosecutor in Scotland, at least as far back as 1598. An earlier
title, which also continued to be used, was King's Advocate, mentioned
in the Act 1579, c. 78. The office came into prominence during the
seventeenth century, the period at which unpopular State prosecutions
were so rife, and several successive Lord Advocates obtained an evil
reputation in consequence. One of the most celebrated of these we find
acting as a justice depute shortly after the date at which this Record
commences. It will be noticed in these trials that the Advocate usually
appears by deputy, reserving himself, then as now, for cases of
outstanding importance.
Our Scottish courts, both civil and criminal, long
groaned under the burden of tedious written proceedings. To this fact,
however, we doubtless owe not a little of the information contained in
this manuscript. The indictment, instead of being a brief statement of
the crime charged, was a lengthy document, which at one time seems to
have contained a good deal of the information as to facts which the
prosecutor intended to lay before the jury. In such cases as those of
Weir and Mitchell, we find the accused actually preached at for his
iniquities. In its syllogistic form the indictment indeed continued to
be unnecessarily long and wordy down to 1887. But it was by no means the
only document in the case. It nearly always gave rise to a debate upon
the relevancy; and in the seventeenth century the custom was for counsel
upon both sides to dictate to the clerk of court what they had to say.
Then arose defences, answers, duplies, triplies, and so on. Again, just
at the date when this Record begins, 1661, it had become customary to
take down at large the depositions of the witnesses; and apparently the
court sometimes acted upon such evidence, although it had not been given
in its presence. Lastly, the verdict was in writing.
The admission of evidence in those days was based upon
what Hume calls a ‘ narrow scheme.1 Light is thrown upon it in the pages
which follow. Sex, and even personal deformity, might prove a bar to
testimony. The most serious obstacle in the way of ascertaining facts
was the general exclusion of female witnesses, and the exceptions to the
rule only made it the more absurd. In what were considered atrocious,
occult, and domestic crimes, women were occasionally admitted, but each
case as it came up raised wranglings, and had to be disposed of by the
judge. Probably in almost any kind of criminal charge penuria testium might
open the door to the female witness, but where this could not be pleaded
she was kept out, no matter how important and vital her evidence might
be. Reference may be made to the case of Fraser, under date November 17,
1673.
This suspicion of women lingered down to recent times. It
needed a modern statute to make it clear that a woman could witness the
execution of a deed.
The confession of the prisoner, even when made under
suspicious circumstances, or when not satisfactorily proved to have been
made at all, was at the date of these trials a convenient mode of
securing a conviction. The confession need not have been made before the
assize nor before a magistrate, for ministers and others might receive
it. But when once made it could not easily be got over, and even in
cases involving a death punishment a previous confession warranted a
verdict of guilty. In the political trials following the Pentland
rising, it will be seen how much use was made of confessions which, even
quite possibly, were obtained under torture. The prisoner, as in the
case of Finlay Mac-gibbon, December 3,1669, might deny the verity of his
confession, but in that case it was held found 4 that a confession taken
be the justices and subscryvit be the pannel is judicial and cannot be
retracted here at the barrel Confessions made to the Lords of Justiciary
or Privy Council were held to prove themselves without the evidence of
the parties subscribing them, or who were present when they were
uttered.
In modern practice we only know of three verdicts, viz.
6 guilty,’ 4 not guilty,’ and 4 not proven.’ This record
exhibits a greater variety of forms. In former days the verdict was
sometimes a comparatively lengthy affair, resembling a judicial
interlocutor, and giving rise to questions of construction. Such terms
were used as 4 fylit,’ 4 culpable,’ or 4 convict ’ on the one hand,
and 4 clean,’ 4 free,’ and 4 innocent’ upon the other. In fact there was
considerable latitude of expression. Popularly it is supposed that there
is always a broad distinction between a verdict of not guilty and one of
not proven when given by a Scottish jury. But while they have sometimes
intended to recognise such a distinction, and returned a verdict of not
proven in what may be called suspicious cases, this is certainly not
always the case, and many a person whose innocence is very doubtful
leaves the dock with a verdict of not guilty. For a long time the
regular Scots verdict was 4 proven ’ or 4 not proven,’ having reference
to the libel which the Court had found relevant and remitted to an
assize. The idea at that period prevailed that such a verdict as guilty
or not guilty might, to quote Hume,4 cover a complex and more enlarged
view of the case, such as might be alleged to encroach upon the
functions of the Court/ It seems difficult to see why.
A curious case relating to a verdict will be found under
date February 26, 1672. The verdict of an assize could be challenged on
the score of error, and we have various instances of steps being taken
to do so. Procedure was in such cases regulated by the statute 1475, c.
63. The jurors could be punished, although where there had been an
acquittal the prisoner benefited by it Assizes of error were amongst the
evils complained of by the Estates in 1689, and no longer exist.
The sentence was pronounced by the doomster or dempster.
Scott, it will be recollected, has introduced this ghastly functionary
with dramatic effect at the trial of Efiie Deans. Hume says that the
dempster was the common executioner, and seems to infer that his duties
were confined to capital cases, but from this Record we find that he had
a wider scope. The author highly approves of even minor sentences being
pronounced by him, although doubtful as to the necessity for his oath of
office.
The punishments we find varied; they sometimes surprise
us by their leniency, more frequently by their severity. like the sister
kingdom, Scotland had many statutes which imposed the penalty of death,
but it may be questioned whether in its practical results our system was
ever so sanguinary as that which prevailed south of the Tweed. At the
present day, there is certainly an extraordinaiy difference between the
number of executions in England and in Scotland, more persons being
hanged in the former country in one year than in the latter within a
generation. The reluctance of a modern Scottish jury to convict upon a
capital charge is very remarkable. In former days scruples were not so
great. Towards one class of offenders no mercy was shown. It is
appalling to think of the number of old women strangled and burned
during the short period with which this book deals.
The ordinary mode in Scotland of putting to death, even
in cases of treason, and when the criminals were persons of high rank,
was hanging, although the heads of traitors were usually cut off for
subsequent exposure. It is curious to find that the more humane, and
certainly more dignified, practice of beheading was reserved, as a rule,
for atrocious murderers and notorious thieves. A clumsy imitation of the
French system of breaking upon a wheel was not unknown. Heretics and
witches were burned, either ‘quick’ or after strangulation, while
gipsies and some female offenders were drowned. Sometimes, to aggravate
the punishment of exceptional criminals, a hand was struck off before
execution. In the case of Roy Roy, mentioned at p. 200, we read that
this mutilation was so badly performed that the blundering executioner
was dismissed from office.
Long periods of imprisonment were not commonly given.
Hume is proud of the fact, which was perhaps as much due to the absence
of prison accommodation as to any disposition towards leniency. The old
idea of punishment was something which the criminal could feel, and that
sharply. Pain and disgrace were considered the best checks upon crime.
Hence our brandings, dismemberings, boring of tongues and ears, nailing
of lugs and pinching of noses, exposure in the pillory, jougs, stocks,
or cuckstool.
Banishment was frequently the penalty, and this might be
from the country or only from a district, as in one case we find, from
the three Lothians.
Torture was not, of course, so much a mode of punishment
as a means of extracting the truth, or at least information useful for
the prosecution. In theory the sanction of the Privy Council was
necessary before it could be inflicted, but as a matter of fact inferior
tribunals, particularly in cases of witchcraft, did administer torture.
While the confession thus extorted could be used subsequently as
evidence of the victim’s guilt, and even of the guilt of others
implicated by him, if his assertion of innocence held out against the
agony, he secured no immunity from further persecution. Torture as an
instrument of the law reached its perfection between the Restoration and
the Revolution. It was not actually rendered illegal until the passing
of 7 Anne 21 in 1707, which enacts that after the first day of July in
that year ‘ no person accused of any capital offence or other crime in
Scotland shall be subject or liable to any torture.’ The usual
instruments of torture made use of by the Privy Council were the
thumbscrews and the boot;2 but the lay and
clerical tormentors of suspected witches seemed to have favoured the
system of depriving their victims of sleep, an expedient which worked
well, as by producing delirium it greatly added to the fascination of
the confessions.
These Records amply illustrate the unsettled state of the
country, and that apart from the special disturbances which the
Government policy in Church and State brought about. The proceedings for
‘blooding and wounding’ and deforcement are numerous. Men attacked with
drawn swords in the darkness of the night. The offenders were often
persons of position. Thus we find Rose of Kilravock and Lord Gray
declared fugitives. The Master of Herries charges Viscount Kenmure with
a theft of title-deeds. In one case we find a sheriff-court dissolved in
confusion because of the appearance of the accused armed with formidable
weapons. We have a curious instance of a commission of fire and sword
granted upon June 8, 1665 to Sir James Macdonald, to enable him to
execute barbaric justice upon the house of Caipoch, when, as we learn, a
present of the heads of the offenders was made to the Privy Council for
exhibition in public places.
Naturally hamesucken was of frequent occurrence. This
peculiar term was applied to ‘ the felonious seeking and invasion of a
person in his dwelling-place or house,’ and was at the time we are
dealing with, and for long after, a capital offence. In order to
establish the charge, the accused must have visited the house with the
intention of assaulting, but, once in it, an attack upon the servants or
children was sufficient to constitute the offence. To assault a man in
his shop or place of business, or in an inn where he may happen to be,
is not hamesucken. In the case of Sydserf, June 4, 1669, the Court did
not sustain a charge of hamesucken when a comedian had been assaulted in
his theatre.
There are two crimes frequently dealt with in these
Records which have now ceased to be prosecuted, viz. adultery and usuiy.
Both are statutory. The oldest Act relating to adultery is of
pre-Reformation date. But it was a crime to which the Reformers paid
special attention in their desire to restore the law of Moses in all its
severity. The Act 1563, c. 74, was passed, to use the words of
Hume, 4 in the very heat of the Reformation,’ and it visited notour adultery
with the penalty of death. The Legislature continued to deal with the
subject down to the beginning of the eighteenth century. To constitute notour adultery
a child must have been procreated, or the bedding and concert of the
guilty parties must have been open and well known, or they must have
exhibited defiance of the Church’s admonition. Simple adultery met with
a lighter punishment. The extreme penalty of the law was seldom enforced
in any case, and the crime was one which the lax morality of the
Restoration age was not calculated to deal severely with. The
consequences of adultery were, in course of time, left entirely to the
civil courts, and when Hume wrote he was able to record that, while the
statutes still remained, the offence had not for many years been the
subject of a criminal prosecution.
Usury forms the subject of various lengthy and ingenious
arguments in some of the cases now before us. The Canon law prohibited
the taking of interest; but such a law was not congenial to the habits
of the Scots after they had thrown over the authority of Rome.
Accordingly all our statutes were passed to regulate the rate of
interest, and the earlier ones were really more favourable to the lender
than that of 12 Anne 2, 16, which reduced legal interest to five per
cent., and which regulated the matter for the long period of one hundred
and forty years. At the date we are dealing with, the rate of interest
was six per cent.
Under date March 7, 1665 (p. 123), there will be found
notice of the prosecution of some fleshers in Edinburgh for breaking
Lent. This may call for explanation. It is well known that in so far as
ritual and ordinances were concerned, the Restoration Episcopacy was of
a most nominal character. There was probably not a single bishop upon
the Scottish Bench who really cared about the observance of Lent. To men
of Leighton's stamp it was a matter of supreme indifference, while to
the baser sort it could have meant only an interference with their round
of good living. In pre-Reformation times, and also in the days of Laud,
there had been provisions relating to Lent, and in February 1662 these
were revived by an Act and proclamation of the Privy Council, which was,
however, based upon purely civil grounds. It covered not only Lent, but
the weekly fish days, viz. Wednesday, Friday, and Saturday, and
discharged all persons from eating, killing, or selling in markets 4any
sort of fleshes’ during that time and upon the said days. The object is
thus set forth : ‘ Whereby the young brood and store will be preserved,
so that hereafter the hazard of scarcity and dearth may be prevented,
and the fishes, which by the mercy of God abound in the salt and fresh
waters of this kingdom, may be made use of for the food and
entertainment of the lieges; to the profit and encouragement of many
poor families who live by fishing.’ ,
The most curious fact of all is that this Act met with
the hearty approval of Wodrow. He says: 4 This proclamation was merely a
requisition of a civil keeping of Lent, and the weekly fish days, for
the preservation of the young bestial and the consumption of our fish,
which the Lord has so bountifully given us; and had the council seen to
the execution of this good act as well as they did the severe and bloody
acts against presbyterians, it had been much for the interest of the
lieges.'
The trials in this collection, which may perhaps excite
the most general interest, are those for witchcraft. The subject has
always had a peculiar fascination. It may perhaps be said that the
history of Scottish witchcraft has still to be written. It has of course
been dealt with by many writers, and from different points of view. To a
man like the late C. K. Sharpe, it afforded ample scope for exhibiting
the superstition and folly of Presbyterian ministers, and he deals at
large with it in his very interesting introduction to
Law's Memorials, Of the same malicious spirit was Hugo Arnot, who has
collected trials, and whose comments are never friendly to the Church.
He was a notorious instance of the sceptical reaction which
characterised the eighteenth century, and which was not entirely
confined to laymen. The belief itself then only lingered in remote parts
of the country and amongst obscure dissenters. Upon the other hand, men
like Law and Sinclair, the author of Satar Cs Invisible World
Discovered, were firm believers who would as soon have questioned the
truth of Christianity as the reality of Satan's manifestations and the
existence of those who were in direct communication with him.
Of a like view was the English Baxter, and, at a much
later date, John Wesley. England has afforded an example of an early
doubter, born before the time, in Reginald Scott, author of The
Discovery of Witchcraft, against whom may be set Glanville, a dignitary
of the Church. But in Scotland I question if there was a single sceptic
to be found during the seventeenth century. If there were any such they
judiciously concealed their doubts. What men like Sir George Mackenzie
really thought upon the subject it may be difficult to say. One cannot
but think that when religious conviction was weak and philosophy had
some sway, a belief in witchcraft could hardly have been strong.
When we come to such a writer as Baron Hume, we find
exhibited a certain feeling of shame over the follies of the past,
combined with a sense of relief that he is no longer bound, as a teacher
of law, to lay down any doctrine upon the subject. The Act 9 Geo. n. c.
5 had converted the witch into«a cheat and impostor, and substituted the
pillory for the stake.
Although the belief in and prosecution for witchcraft had
existed in all respectable Christian countries for centuries, there can
be no doubt that, in so far as Scotland was concerned, it was after the
Reformation that these dealings with Satan came as it were to the front.
Witches were to be found everywhere; their discovery became a fine art;
Privy Council, justice deputes, special commissioners, ministers, and
elders had their hands full. There may be various explanations of the
fact. To the old school of Protestants, it was obvious that while Popery
prevailed the powers of darkness, having everything their own way, were
at rest. But beyond doubt the Reformation placed in the hands of every
man a book, considered to be of binding authority, and containing a law
which doomed the witch to death. The place of Satan in the scheme of
theology became much more important than it had hitherto been. Men were
driven to trace every evil thing to him, to find him constantly at their
side with his evil suggestions and his cunning snares. All events
assumed a gloomy aspect; every misfortune in life was either the direct
act of the enemy of mankind or the j ust judgment of an angry God. The
earth below and the air above alike were full of manifestations of the
supernatural. Further, by the system which the Reformers adopted and
spread over the country, there was placed in every parish an individual,
possessed of some learning it might be, but not necessarily of any
sense, whose course of education had led him to silence all doubts over
Satanic agency, and whose kirk-session supplied him with active and
willing assistants in his battle with the unseen foe.
The Scottish Act against witchcraft, by its very date,
1563, points to the part which the Reformed Church played in bringing
this sin and its punishment into prominence. But it is only fair to
point out that the suppression of Presbytery at the Restoration, and the
substitution in its place of Episcopacy and all ungodliness in high
places, had no effect upon the witchcraft crusade. On the contrary, it
is recorded that at one sederunt of the Privy Council, held upon
November 7, 1661, no less than fourteen commissions for the trial of
witches in different quarters of the country were granted. There can be
no doubt, however, that had the authorities adopted a different course,
a wild protest would have arisen from the Covenanting section, to whose
members it must have been some comfort to find that, although they
themselves had lost the power, the witches were to enjoy no respite.
One thing is certain, that in these prosecutions gross
cruelties were inflicted, particularly in the preliminary stages, in
order to procure for the Court something in the shape of a confession.
‘Torture,’ says Hume, ‘of one kind or other seems to have freely been
made use of. The most common mode was the thrusting of pins into the
body, and the denial of sleep for many successive days and nights.’ The
same writer mentions the case of Alison Balfour, where the torture was
applied, in her presence, to her husband, her son, and her daughter, a
child of seven years old. All these iniquities were frequently committed
under the superintendence of the ministers, ever active agents in
bringing the offenders to punishment. Although some attempts seem to
have been made to discourage that utter abomination, the professional
witch-finder, prickers, or persons who undertook to discover Satanic
marks upon the bodies of the accused, were frequently employed.
Fountainhall mentions one Kincaid,4 a famed pricker.
When we turn to the trials reported, with the greatest
gravity, in this volume, our first impulse is to conclude that all
concerned in them, judges, juries, counsel for both prosecution and
defence, and, for the most part, the parties at the bar, were insane.
The arguments, of a manifestly stereotyped character, with which it was
sought to break down the indictments, seem as preposterous as the
charges which the latter contained. For common sense there was no place.
The Scriptures and the Act of Mary quite excluded the sceptic, and the
sheer absurdity of the whole thing never seems to have dawned upon any
mind. For the religious fanatic there was some excuse, but under the
Restoration Government fanaticism in all its innocent aspects was
repressed with stern cruelty. To my mind the worst feature in this whole
matter was the position taken up by such men as Mackenzie and others,
from whom as persons to some extent emancipated from superstition better
things might have been expected. These rollicking statesmen, who used to
toast the devil in their cups, might at least have shown some sympathy
with his more humble followers in their affliction.
Mr. Andrew Lang has well said, What went under the name
of witchcraft was a web of fraud, folk medicine, fairy tale, hysteria,
and hypnotic suggestion, including physical and psychological phenomena
still unclassified.12 As to the witches themselves, it must be kept in
mind that there was no lunatic asylums in those days, while, owing to
the prevailing type of theology, the many lunatics who must have been at
large were very likely to have their minds concentrated upon infernal
persons and things. This may account for some of the wilder flights of
fancy which the confessions exhibit. Many wretched beings suffered in
consequence of being ‘delated’ by a confessing witch, so that one
lunatic might involve the ruin of many sane persons.
In the Transactions of the Scottish Society of
Antiquaries for 1887-8 there will be found two very interesting and
valuable contributions upon the subject of witch trials. They contain a
number of indictments and confessions of the accused, with the findings
of the assize, and the sentences, in connection with two different but
almost contemporaneous outbreaks of sorcery, the one in Kinross-shire,
the other in Forfarshire. There are also most suggestive remarks by the
contributors, Mr. Burns Begg and Dr. Joseph Anderson.
In these papers much light is thrown upon the legal or
sometimes illegal machinery made use of in connection with this class of
cases. The Kinross witches were tried by the justice depute, Mr.
Colville. Those of Forfarshire came before a commission specially
appointed by the king through the Privy Council. But in both counties we
find that the important work had been done before the courts sat. The
confessions had been wrung from the prisoners, taken usually before the
minister, assisted by some elder or leading heritor and a notary. These
confessions had, in the ordinary case, simply to be thrown into the
narrative form so as to appear in the indictments. 'Ye confessed’ was
enough, the jury could but return one verdict, and there could be but
one sentence, to be stranglit to the death,' with a subsequent cremation
of the bodies. The terrible mischief done by ‘delating' is forcibly
shown. The Kinross witches were women in the habit of meeting Satan at
unholy parties, and were frequently able to give the names of those
present, thus laying foundation for further proceedings. Who played the
part of Satan at these gatherings—the man, sometimes in black, and
sometimes in grey clothes, with the Scotch blue bonnet? Mr. Begg has a
theory that the real Satan was a discharged soldier, or other form of
tramp, and that these women were the victims of ‘ unscrupulous and
designing knaves, who personated Satan for their own guilty purposes,
and who, by working upon the ignorant terrors of their victims, induced
them to become their abject slaves. The country at that time, owing to
the recent Revolution, was still in a very unsettled condition, and no
doubt the rural districts were swarming with discharged soldiers and
others trained to no handicraft or trade, and dependent for their
subsistence on whatever in the course of their wanderings came within
their reach. To outcasts of that stamp the blinded allegiance of a dozen
or so of the residenters in a rural district must have appeared to be an
advantage well worth securing by any means and at all hazards.' This
theory seems worthy of consideration. The Scottish incarnation of Satan
devoted his energies almost entirely to women. The warlock in Scotland
is a rare being.
Dr. Anderson, in presenting his set of attested and
authenticated confessions, says: 'It seems to me that we shall never
understand the attitude of the educated mind of the seventeenth century
towards witchcraft until we are able to examine and compare a large
number of such documents from different parts of the country. They
disclose many things besides the mere curiosities of the processes and
the confessions.'
The last execution of a Scottish witch seems to have
taken place in Sutherlandshire in the year 1722, under a sentence
pronounced by the sheriff-depute of that county. 'This old woman,' says
Mr. Sharpe, 'belonged to the parish of Loth, and among other crimes was
accused of having ridden upon her own daughter, transformed into a pony,
and shod by the devil, which made the girl ever after lame both in hands
and feet, a misfortune entailed upon her son, who was alive of late
years. The grandmother was executed at Dornoch ; and it is said that,
after being brought out to execution, the weather proving very severe,
she sat composedly warming herself by the fire prepared to consume her,
while the other instruments of death were making ready.’
Prior to this date we find evidence of a sceptical spirit
being at work in high places, as is shown by the correspondence between
the Lord Advocate (Robert Dundas) and the sheriff-depute of Caithness in
1719, over the case of the enchanted cats of Scrabster. The curious will
find it preserved in Sharpe's Introduction to Law's Memorials. The
witchcraft cases are chiefly at the beginning of our period. It must not
be supposed from this fact that they diminished. The true explanation
doubtless is that they were being dealt with by commissions holding
local sittings. Although the crime involved death at the stake, it was
apparently not sufficiently important to occupy the time of the
justices. It will be noted, however, as regards a number of the later
cases, that the prosecutions failed through the absence of prosecution.
In the case of the Weirs it may be a significant fact that, although
the 4 Major' was reputed a wizard, and is generally remembered as such,
sorcery was not charged against him, while his sister was not convicted
as a witch, although indicted for witchcraft.
Probably from the public point of view the most important
cases in this Record are the political trials, which are mainly
connected with what is often called the Pentland rising, although, more
strictly speaking, it was the Galloway rising, which met its end and
dispersion amidst the Pentland Hills. The Government, having sent Sir
James Turner with some troops to the south-west of Scotland to promote
the interests of conformity after the usual methods, the barbarities of
his soldiers drove some of the 4 honest ’ men to have recourse to arms,
and they were so successful as to be able to surprise and take prisoner
Sir James himself at Dumfries, upon November 15, 1666. The movement
gaining strength, the insurrectionists advanced in a north-easterly
direction through the counties of Ayr and Lanark, the Covenant being
solemnly renewed at Lanark, until they reached the neighbourhood of
Edinburgh, where, after a brave resistance, they were routed by General
Dalziel. This rising proved a very godsend to the Government, as it
formed an excuse for all manner of petty tyrannies down to the date when
the murder of Archbishop Sharpe presented even a better. The number of
prisoners taken, some of them persons of importance with estates to
lose, kept, as will be seen, the lawyers busy. The first trial, that of
Captain Arnot and nine others, took place before the Justice-Clerk,
assisted by a justice-depute. Both Mackenzie and Lockhart were engaged
for the defence, and as there could be little doubt about the facts,
their whole forensic strength was expended in an ingenious, but of
course perfectly hopeless, attempt to break down the relevancy of the
indictment. The first objection was to the mode of citation of the
accused, or rather to the absence of due citation by herald, pursuivant,
or macer, as required in cases of treason. If the
arguments pro and con were not clearer than they appear in this report,
it may well be doubted whether the bench understood them, but its duty
was clear enough. No allegiance proponed for the pannels could be
sustained.
The second ground of defence was of greater importance,
and called forth greater and more learned contendings upon both sides.
It arose upon the alleged fact. It was said that the rebels, who had
been modelled upon the system of an army, had been dealt with as such by
the king's general, and offered quarter when they laid down their arms.
Such quarter offered and accepted formed a bar to these subsequent
proceedings. Much reference to Grotius and other learned writers
followed. Crown counsel indignantly repudiated the idea of treating this
miserable rising as constituting a state of bellum, to which the laws
relating to quarter could apply. They denied the power of the general to
grant quarter; all that he offered or could give was protection from
immediate slaughter upon the spot. Further, it was contended that the
averments relating to this offer of quarter were too vague. The
preliminaries having been got over, the trial itself was but a short
affair, as the accused were convicted entirely upon their own
confessions already taken before members of the Privy Council and now
adhered to. Then followed a busy time for the executioners.
The trial of Maxwell of Monreith and others, a second set
of Pentland Hill rebels who had managed to escape, raised a question of
much legal importance, the disposal of which throws a curious light upon
the Government policy of that unhappy period in our history. 'The king's
servants,' says Hume, whose bias, if any, was not upon the popular
side, not content with the many victims whom the chance of war threw
into their hands, had judged it material to the authority of government
that the estates of the fugitives should be laid hold of, and themselves
be deterred from continuing in, or returning to, the country, by the
terror of a capital sentence hanging over them, and ready for execution
on their being taken. What the Lord Advocate invited the court to do was
startling and unquestionably novel. The fugitives were not only to be
outlawed, having failed to appear, they were to be tried, and if found
guilty condemned in absence and unheard. Outlawry would have given their
moveable goods immediately, and their real estates at the end of a year,
to the king. But condemnation would be followed at once by forfeiture,
while at the same time it placed formidable obstacles in the way of the
fugitives’ return.
To fortify his argument the Advocate presented an opinion
from the Court of Session judges, and the fact that he did so
illustrates that the distinction between the civil and the criminal had
not then been sharply defined. This opinion approved of the trial in
absence as a competent and lawful process, but it is significant that
even in those days it was thought necessary, or at least expedient, to
obtain a judicial opinion. The arguments in favour of the application
will be found in the text.
This action upon the part of the authorities was ratified
and placed beyond question by the statute 1669, c. 11. ‘In consequence,’
again to quote Hume, ‘ from that time down to the Revolution this sort
of process was a thing in ordinary practice. It is to be noted that
while the judges thus infringed the ancient law of the realm by
proceeding to trial in the absence of the accused, they rigidly adhered
to the other side of that same law, and refused to let any counsel
appear, or any defence be offered on his behalf.’
It will be observed from the case of Robinson and others
(vol. ii. pp. 113-116) how severely any offence committed against the
'curates’ was dealt with. The effort made to save Robinson, a specimen
of whose workmanship may still, doubtless, be seen at Holyrood, failed,
and the reason is given by our author, who exhibits no sympathy with the
popular cause.
These records are of little value as precedents in
criminal law. Our principles and our procedure have certainly altered
much since those days, and the Restoration period is perhaps the last to
which any one would go in search of a binding authority. No accused
person could now, to take but one example, be convicted upon a
confession which he desired to retract. Some of the crimes have ceased
to be recognised as such, although the statutes which created them may
remain unrepealed.
The lawyer of that period had hardly any authorities in
his own language to fall back upon. A Scottish case is rarely quoted. He
had to search through the ponderous volumes of Clarus and the other
civilians and canonists who are so frequently referred to. He had
certainly to be familiar with Latin. Moreover, he was called upon for an
exercise of ingenuity in discovering flaws in indictments and procedure,
which certainly gave ample scope for his abilities and power of
reasoning. While, however, there is much which is obsolete, these
proceedings had nevertheless their share in building up our criminal
jurisprudence, as will be seen by the fact that such a writer as Hume
makes use of them in his Commentaries.
Their great value, however, consists in the light which
they throw upon the social and political history of that age; and they
will be welcomed by the student of that most interesting if somewhat
melancholy period.
In the years 1891-2 the late Mr. Charles Scott, Advocate
and Clerk of Justiciary, contributed several articles upon the Archives
of the High Court to the Juridical Review. Unfortunately, owing to the
sudden and lamented death of the learned author, upon April 10, 1892,
these articles were never finished. Those contributed will be found in
volumes three and four of the Review. In dealing with the official
literature of the Court, Mr. Scott says: 'The ordinary books include two
classes, the Minutes of Court and the Books of Adjournal. The former are
supposed to consist of the actual minutes of the proceedings, taken in
Court by the clerk at the time, and the Books of Adjournal to be
duplicates of these minutes made afterwards, along with copies inserted
therein at full length of all Acts of Adjournal, Commissions of Judges
and Officials, and other important documents. There are of course no
signatures in the Books of Adjournal, but many interlocutors and orders
in the minutes bear the signatures of the senators and others. It is not
easy at the earlier periods, however, to distinguish the original
minutes from the Books of Adjournal. The former are often so clear and
free from mistakes and corrections that they could scarcely have been
written in Court, and it is quite certain that in point of fact scrolls
or rough notes were sometimes made from which the minutes were written
out.'
The Manuscript now printed, through the kind permission
of its owner, Mr. Weston, upon which an interesting article was
furnished by the Scotsman some years ago, would appear to be a copy of
the Books of Adjournal, with notes and comments suggested by the cases.
The writer, as shown by a reference in the text, wrote at a date some
years later than that of the cases recorded.
After the matter was taken in hand by this Society, the
Manuscript was collated with one in the possession* of the Faculty of
Advocates. They were found to be practically identical so far as they
go. While Mr. Weston's, however, after a blank between November 12, 1674
and January 10, 1678, continues until February 24,1679, the Advocates'
Manuscript ends upon January 19, 1674. It has been suggested that both
Manuscripts are copies from a common source.
It may be mentioned that in the official records of the
Justiciary Court there is a hiatus between 8th August 1676 and November
27, 1677. The Signet Library also possesses a Manuscript collection of
trials covering the period between 1661 and 1730. There are in it at
least certain of the notes to be found in the Weston and Advocates'
Manuscripts. It is doubtless to the latter of these that Baron Hume
refers (ii. 288). He writes of 4 the author of the MS. Abridgment of the
Books of Adjournal which seems to have been made towards the end of the
seventeenth century,' but he mentions no name. He quotes the
observations which will be found made upon the case of Margaret Taylor
under date June 24,1663.
In the library of the Society of Antiquaries there are
three volumes which were presented to that Society in 1806 by Mr. John
Dundas, W.S. They contain Records of the Court of Justiciary from 5th
February 1584 to 8th July 1723. The two first volumes are entirely
manuscript, while the third contains a number of printed and written ‘
Informations,’ in addition to the record of trials.
It is obvious from these various Manuscripts that the
records of our Criminal Court must have called forth a considerable
amount of interest as well as industry on the part of law students.
It has been thought advisable owing to the blank in the
Manuscript, which occurs between November 1674 and January 1678, to
conclude these volumes with the last entry under the former date, and to
give from the continuation the second trial of James Mitchell in 1678,
which supplements that contained in the text, by way of appendix. Our
record begins at a date thirty-seven years later than that at which Mr.
Pitcairn’s collection of trials ends. There seems to be material for at
least partially filling up the gap still existing, and it is to be hoped
that this may yet be accomplished.
I wish to convey my thanks to the following gentlemen :
to Mr. John W. Weston, Clerk of the Police Court, not only for the use
of the Manuscript, but for certain notes identified by the letter W.; to
Mr. Fitzroy Bell, Advocate, for assistance in the collation of the
Manuscript; to Mr. John Rankine, K.C., and Mr. J. T. Clark, Keeper of
the Advocates’ Library, for their aid in the revision of the
proof-sheets. To Mr. Clark I am also indebted for information relating
to the members of Faculty whose names appear in connection with the
cases recorded. To Mr. Mill of the Signet Library, who has done so much
useful work for our Society, was intrusted the copying of the Manuscript
for the press. The Index is also his work.
W. G. SCOTT-MONCRIEFF.
June 1905.
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