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THE laws and customs of a
people change with increasing experience, with the changing wants of new
generations, with the altered conditions which the closing of old and
the opening of new departments of commerce and industry bring about,
with the progressive or retrogressive motion of the people in general
intelligence, with surrounding political and social conditions, and with
those frequently unaccountable changes in the manner in which public
opinion views certain things which the law at a particular period may
regard as offences against .good order. Many things, therefore, which
are now matters of everyday legal experience, may, and probably will,
appear little short of unaccountable to the student of social and legal
history of a century or two hence. In like manner, many things which
were matters of everyday experience to our ancestors two or three
hundred years ago, are no longer among us, except as recollections of a
past time, and their sole interest consists in the light they throw on
the history of our country, and the conditions of life in a former age.
Long before the Reformation, Scotland had the reputation of being a
religious country; at all events, of paying considerable regard to
external appearances in religious matters ; but it was not until after
the Reformation that regulations were made, or rather were seriously
enforced, for compelling attendance at divine worship. The Supreme
Courts of the Church first took the matter up, and the Kirk Sessions
were enjoined to see that every parishioner was present at each diet of
worship and to accuse those who absented themselves. The Church likewise
insisted that every adult should at least once a year partake of the
Communion—a resolution which was afterwards ratified by Parliament. In
1600, Parliament enacted that certain penalties should be inflicted on
those who neglected to attend public worship, but long before this time
fines were imposed for this offence. In Aberdeen, in 1562, for an elder
or deacon to be absent from the preaching inferred a penalty of “Twa
shillings,” and for every honest person of the town sixpence ; and in
Perth in 1582 it was ordained that the elders should take it in turn to
pass through every quarter of the town every Sunday in time of
preaching, before noon, and note them that are found in taverns, factory
booths, or the gaits, and accuse them to the Assembly, that every one of
them that is absent from the Kirk may be poinded for 20s. By an Act of
the Aberdeen Town Council passed in 1598 a severe tariff of fines was
ordained for various ranks of people on their staying away from Sunday
and week-day service in the churches, and every husband was to be
answerable for his wife, and every master for his servant. It was also
ordained that the wives of burgesses, and the most honest and
substantial craftsmen of the burgh, should sit in the midst of the body
of the kirk, and not in the side aisles nor behind pillars, in order
that they might see and hear the preaching, and the women were ordained
to repair to kirk, everyone having a cloak, as the most comely and
decent outer garment, and not with plaids, and that every one of them
should likewise have a stool, as many as might commodiously have the
same. In 1551-2, Parliament enacted that persons making perturbation in
kirk the time of divine service should be fined—Earls, £10; bailies, £5
; vassals, £2; and others, 20s; poor folks, 15 days’ imprisonment on
bread and water, or, for the third offence, banishment for a year and a
day. The Act ordained the Dean of Guild, Kirkmaster, or rulers to “gar
leische” (leash ?) “ bairns that perturb the kirk in manner foresaid.”
But although this strict observance of the Sunday during sermon time was
enforced, the day appears to have been somewhat different from what it
now is. It was held to commence at sunset on Saturday, and to terminate
on Sunday at sunset, or at six o’clock. In 1594, the Presbytery of
Glasgow forbade a piper to play his pipes on Sunday frae the sunrising
to the sun-going-to; while in 1574, in Edinburgh, a fast, in consequence
of impending pestilence, was ordered to commence on Saturday at eight
o’clock in the evening, and to continue until Sunday at six. In April,
1600, it was, in obedience to an ordinance of the General Assembly,
arranged at Aberdeen, and similar arrangements would have been made in
other places, that each Thursday masters of households, their wives,
bairns, and servants, should appear at their own parish kirk to be
instructed in the grounds of religion and heads of the Catechism, and to
give proof on trial of their knowledge on the same heads. In reference
to this, Mr Chambers says in his “Domestic Annals”— I After this
arrangement had been made, the religious observances of the citizen
occupied a considerable share of his time. He was bound under penalties
to be twice in church on Sunday, to make Monday a pastime day for
eschewing of the profanation of the Sabbath day, to give Tuesday
forenoon to a service in the parish church, to do the same on Thursday
forenoon, and on that day also to attend a catechetical meeting with his
family. Three forenoons each week remained for his business and ordinary
affairs. Notwithstanding this liberal amount of external observance, the
General Assembly appointed, in 1601, a general humiliation for the sins
of the land and contempt of the Gospel, to be kept the last two Sabbaths
of June and -all the week intervening and finally, in the time of
Charles the Second of pious memory, Parliament went the length of
prohibiting fairs on Saturday or Monday, in case the sanctity of the
Sabbath might be violated. During the whole of the period within which
these Sabbatarian regulations were enforced, the Scottish Parliament and
the Church Courts seem to have worked very Harmoniously together, and
the Civil Courts appear to have enforced the regulations, even of the
inferior of the Church judicatories, as strenuously and strictly as they
would an Act of Parliament. In the second series of Mr Dunbar Dunbar’s
“Social Life in Former days,” a curious instance is given of the
Parliament intervening to enforce the sentence of a Church Court. On
ioth May, 1660, the Moderator of the Presbytery of Elgin wrote Sir
Ludovick Gordoune of Gordonstone, informing him that the Synod had
referred it to the Presbytery to take special notice of his contempt of
public worship, and he requested him to attend at the next Presbytery
meeting, so that he might, if possible, vindicate himself. Sir Ludovick
paid no attention to this letter, and a second one was written,
requesting him to attend another meeting of Presbytery. Sir Ludovick did
not attend, but sent a protest, upon which the Presbytery issued a
warrant to the officer of the Synod, authorising him to summons Sir
Ludovick to appear before the Synod of Moray, at Inverness, to answer
for subscribing “a scandalous and sinful protestation against the
‘Assembly’ of Moray.” Sir Ludovick failed to appear before the Synod,
and his conduct was brought under the notice of Parliament, with the
result that a fine of L3600 Scots, or £300 sterling, was-imposed upon
him, and he paid it too.
Parliament did not confine itself, however, to the enforcement of the
observance of the mere outward appearance of religion. In 1649, it was
enacted that any person, not being distracted in his wits, who should
rail upon or curse God or any of the persons of the blessed Trinity,
should be punished with death, as also any person denying God or the
Trinity, and obstinately persisting therein ; and another Act of the
same year, proceeding on the narrative that Parliament, considering that
divers of the subjects of this realm trade in their civil affairs with
heathens, whose abominations they may possibly learn and thereby be
defiled and defile others, ordained that whosoever should worship a
false god should be “put to death without pardon.”
Although Parliament seems to have been so zealous in making laws to
compel observance of at least the forms of religion, and the appearance
of respect for things sacred, the common people do not seem to have
regarded sacred days and sacred places with the respect which is now
considered due to them. At the close of the 15th and the beginning of
the 16th century, the practice of holding fairs on Sunday appears to
have been common, and the church, in addition to being a house of
prayer, was the place where merchants congregated. In the year 1503,
Parliament enacted that there should be no markets or fairs held upon
holydays, nor yet within kirks or kirkyards, and in 1564, on the
narrative that it had been disregarded, the statute was republished.
Five years later the subject was again taken up by the Privy Council,
and after reciting that the Act of 1503 had been diverse times ordained
to be put to execution, and sundry proclamations made to that effect,
the Council’s ordinance stated that nevertheless the abuse and contempt
of God and good order continues in such sort that albeit God of His
mercy had granted the light and knowledge of His Word in this last age,
yet the malice and obstinacy of the people continues in their wonted
disorder and wilfully violates the Sabbath day, using the same profanely
in market-making and other worldly affairs, as also profaning and
abusing the kirks and kirkyards, where the people of God ought to
convene to hear the Word of God and receive the Sacraments. It is worthy
of notice that twice within five years the supreme power of the State
had to practically re-enact a law passed sixty years before on the
declared ground that it had been disregarded openly and apparently with
impunity.
Profanity too received the attention of Parliament. An Act passed in
1551 states that notwithstanding the oft and frequent preachings in
detestation of the grievous and abominable aithis and blasphemations,
the practice still continued. From 1st February to 1st May, the
punishments were—On a Prelate of the Kirk, an Earl, or Lord, twelve
pence; and on a Baron or beneficed man, fourpence ; and so on. Between
1st May and 1st August the punishment was to be doubled ; between 1st
August and 1st November tripled ; and from 1st November to 1st February,
quadrupled. Subsequent offences were punished much more severely, the
fourth offence being punished by banishment or imprisonment for a year
and a day. What the effect of the statute was does not appear, but it is
hoped that the severe punishment attached to a fourth offence prevented
at least the Prelates of the Kirk swearing overmuch.
It was probably because it was an offence against religion that the
crime of witchcraft was so severely dealt with in Scotland, but there
was doubtless an element of fear present also.
The first enactment relative to witchcraft or sorcery in Scotland was so
ambiguous that there is room for suspicion that its framers did not
altogether believe in the crime they denounced, and that the punishment
was intended for the impiety and blasphemy of pretending to supernatural
power, but whether this be so or not the Church Courts after the
Reformation took the matter up in terrible earnest. Dr Rogers says that
the new persecution arose throughout Europe simultaneously with the
invention of printing and the publication of the Scriptures in the
vernacular tongue, but in Scotland it was not until after the
Reformation that the command, “Thou shalt not suffer a witch to live”
became one of the best observed of Scriptural injunctions. In the time
of James the Sixth every Court in the kingdom, from the Privy Council
down to the Kirk-Sessions and Baron Bailie Courts, was engaged in the
prosecution and condemnation of witches ; and from the King, who wrote a
book on the subject, down to the meanest peasant, every Scotchman seems
to have engaged either in practising sorcery or detecting it. The most
trifling events gave rise to the charge and were held relevant to infer
guilt, such as that a woman’s cow gave less milk, or her corn yielded
less meal than her neighbour’s, a person was taken ill or got well soon
after speaking to or being touched by the accused, or after passing her
or her house or coming into the neighbourhood, a person throve more than
her neigh- bours, or she kept well in an unhealthy season, or was not
found when she was sought for. In the latter case it behoved her to be
with her master the devil. If evidence in sufficient quantity was not
forthcoming certain tests were applied, such as throwing into the water
with hands and feet bound, when, if she floated, she was a witch and was
burned, while if she was innocent she sank and was probably drowned. Or
torture was resorted to to extort a confession. One of the favourite
modes of applying torture was by thrusting pins into the body, and to
such an extent was this practised that it became a trade by which men
were described and earned a livelihood. Fountainhall reports a complaint
in 1678 of Catherine Liddel against Rutherford a Baron Bailie who had
imprisoned her as a witch, and against David Cowan, who under his
authority had tortured her with long pins thrust into several parts of
her body. Cowan defended himself on the “lawfulness of his trade and the
truth of his art,” in which he had been instructed by “Kincade, a famed
pricker.” In a memorandum by Thomas, Earl of Haddington, in his Minutes
of Privy Council proceedings, he relates under date December 1st 1608, “
that the Earl of Mar declared to the Council that some women were taken
as witches in Broughton, and being put to an assize and convicted,
albeit they persevered constant in their denial to the end, yet they
were burnt quick (that is, without having been previously strangled)
after such a cruel manner that some of them died in despair, renouncing
(their baptism) and blaspheming, and others half burnt broke out of the
fire and were cast in quick in it again until they were burned dead,” an
instance of barbarity which illustrates with terrible clearness the
inhumanity of the time.
It was usual to try a large number of these unfortunates before Royal
Commissioners. Hume mentions that no fewer than fourteen commissions
were granted by the Lords of Council for the trial of witches in
different parts of the country, in one sederunt of 7th November, 166T.
It was probably before one or more of these Commissions that the
confessions of Isabel Gowdie and Janet Breadhead, which are pronounced
by Pitcairn to be by far the most unique and wonderful in the records of
this, or perhaps any other country, were taken. Isabel Gowdie emitted
four confessions, all at Aldearn in April and May, 1662. In each of them
she described her baptism by the devil. She met the devil in the night
time in the Kirk of Aldearn, and after renouncing her baptism, she put
one of her hands to the crown of her head, and the other to the sole of
her-foot, and then renounced all betwixt her two hands to the devil. He
was in the reader’s desk, and a black book in his hand. “Margaret Brodie
in Aldearn held me up,” she said, “to the devil to be baptised by him,
and he marked me on the shoulder, and sucked up my blood at that mark,
and spouted it into his hand, and sprinkling it on my head, said, ‘ I
baptise thee Janet in my own name.’” This story is repeated with little
variation in several of the confessions, but absurd though it is, it is
sober sense compared with much of what was taken down at these four
solemn sederunts, at each of which Mr Harie Forbes, minister of Auldearn,
seems to have been the leading spirit, and at some of which William
Dallas, Sheriff Depute of Nairn, assisted.
Another mode of extorting confessions of witchcraft was by preventing
the accused from sleeping or even lying on the handful of straw with
which her cell was furnished. This engine of oppression was, perhaps,
more effectual in extorting confessions than the actual torture. Iron
collars were so constructed that by means of a hoop which passed over
the head a piece of iron having four points or prongs was forcibly
thrust into the mouth, two of the prongs being directed to the tongue
and palate, the others pointing outwards to each cheek. This infernal
machine was secured by a padlock. At the back of the collar was fixed a
ring by which to attach the witch to a staple in the wall of her cell.
Thus secured, and night and day waked^and watched by some skilful person
appointed by her inquisitors, the unfortunate creature after a few days
of such discipline would be rendered fit for confessing anything. At
intervals fresh examinations took place, until her “ contumacy” was
subdued.
Next to being a religious people, the Scotch always appear to have
been—at least those of them who took part in the making of laws—a
thrifty and industrious people. In 1551 an Act was passed which tourists
in the Highlands at the present day would probably not object to see
re-enacted. Provosts and Bailies were directed to cause innkeepers to
take a reasonable price for a man’s dinner and supper, that they may
hold their own and the Queen’s lieges be not sa grevit and hurt through
the great prices taken far aboon all custom and use as has been in this
realm afore their days.
In 1457, Parliament, seeing that the realm was greatly impoverished
through sumptuous clothing, both of men and women, especially within
burghs, enacted that no man within burgh that lives by merchandise,
unless he should be a person constitute in dignity as alderman, bailie,
or other good wealthy man of the Council of the town and ' their wives,
wear clothes of silk nor costly scarlets, “and that they and their wives
and daughters be ordered to wear on their heads short kerchiefs with
little hoods as are used in Flanders, England, and other countries, and
as to gowns, no woman was to wear tails of unsuiting length, nor furred
under, but on holidays, and no labourer or husbandman was to wear on the
work-day but grey and white, and their wives to wear kerchiefs of their
own making, and no woman was to come to kirk nor market with her face
muffled or covered that she may not be kenned, under the pain of escheat
of the curtch.”
In 1567, it was enacted that it should be lawful to no woman to wear
aboon her estate, except.....and the fear of being mistaken for a member
of the excepted class was probably so strong a deterrent that the Act
was more markedly successful than most acts of a similar kind. At all
events, on the margin of Thomson’s Edition of the Acts, there is a note
to the effect that “ this Act is verray ;gude,” evidently the work of a
thankful husband who found his wife’s dress bills materially reduced by
the operation of the statute.
Extravagance in eating does not appear to have been a Scottish weakness.
In England, however, a statute of Edward I., which ordained that no man
should be served at dinner or supper with more than two courses, except
on certain great holidays, when he might have thrae, stood unrepealed
until 19 and 20 Victoriae.
Idlers and vagrants were severely dealt with by repeated statutes. In
1425, each Sheriff was ordained to inquire diligently if any idle men
that have nought of their own to live upon be residing within the land,
and if he found any to arrest them. They were then sent to good and
siccar burghs, and allowed forty days to get them masters, and if at the
end of forty days they were still idle, the Sheriff was to arrest them
again and send them to the King’s prison. In 1449, it was ordained, for
the away putting of sorners and masterful beggars, that Sheriffs,
Barons, and Bailies should inquire at every Court they held,, and if any
such be found, that their goods be escheat to the King, and their
persons put in prison “until the King has said his will to them.” The
same officers were also to inquire “ if there be any that makes them
fools that are not bards or such like other runners about, and if any
such be-found that they be put in the King’s ward or in his irons for
their trespasses as long as they have any goods of their own to live
upon, and if they have nought to live upon, that their ears be nailed to
the tron or to another tree, and cut off, and banished the country ; and
if they be found again that they be hanged.” In 1457, it was ordained
that in all justice ayres the King’s Justice gar tak inquisition of
sorners, bards, and masterful beggars, or feigned fools, and either
banish them the country or send them to the King’s prison. That these
statutes did not remain a dead letter on the statute-book seems proved
by the fact, noted by Chambers, that in August, 1579, two poets were
hanged ; but, as if the' statute which permitted a poet to be hanged,
simply because he was a poet, was not severe enough, the Estates of
Parliament, in October of the same year, passed an Act against strong
and idle beggars or sic as make themselves fools or are bards. In the
same Act, the innate thriftiness of the Scottish people comes out in the
legislation for the relief of the genuine poor. They were enjoined to
repair to their native parishes, and there live in alms-houses ; but
there were no alms-houses for them to live in. In England the law
against vagabonds was equally severe. A strolling beggar above fourteen
years of age was for the first offence burned through the ear with a hot
iron the compass of an inch, and for a second offence suffered death.
A curious survival of the ancient law of wrecks existed until
comparatively recent times on the more inaccessible parts of the
sea-coast of both England and Scotland.
According to a statute of Alexander the Second all wreck belonged to the
King, with this limitation, that no vessel could be held a wreck if any
living thing were found aboard. A living dog was sufficient to satisfy
this condition. In 1429 the right of the Crown was abolished with
respect to the vessels “of those countries which do not use the law of
broken ships in their own land,” and the same favour was ordered to be
shown them here “ as they keep to the ships of this land broken with
them.” The old law does not seem to have been further modified by
statute, but it has been effectually abrogated by the advance of
civilisation.
The exacting of black-mail has also disappeared, that is, the black-mail
which the law used to know. If all stories are true, black-mail is
pretty frequently exacted still, but for different reasons and by a
different class of people from those who exacted it before. On the
ground that it was an encouragement to rapine and a great obstruction to
the course of justice, even the paying of black-mail was made a capital
offence in 1567, but no record exists apparently of even the taker, much
less the giver, of black-mail being executed for that offence alone. As
late as 1741, a regular bond of black-mail was entered into between John
Graham, elder and younger of Glengyle, and several landholders in the
counties of Perth, Dumbarton, and Stirling, whereby Glengyle, in
consideration of an annual payment of £4 for every £ 100 of valued rent
of the lands subscribed for, engaged to restore the cattle stolen from
the holders subscribing, within six months after intimation of the theft
(if made to him with due dispatch) or to pay the value to the owners.
This assurance was, however, expressly covenanted not to extend to the
case of mere pickeries, and what is a theft and not a mere pickery is
stated thus :—“ Declaring that one horse or black cattle stolen within
or without doors, or any number of sheep aboon six, shall be construed
to be a theft and not a pickery.”
Personal dignity and the respect due to persons in high office were not
forgotten. It is recorded that on one occasion James the Sixth had an
Englishman hanged for the offence of exhibiting the king’s picture on a
gibbet, and inferior dignitaries were not less jealous of the respect
due to them. On 13th December, 1564, the records of the Privy Council
bear that complaint was made by James Low, one of the bailies of
Glasgow, upon William Highgate, common clerk thereof, for the speaking
of diverse spiteful words to the said James, “ manifestly contempnand
and vilipendand him, being Bailie and Magistrate to whom he owed honor
and reverence during the time of his office and Mr M‘George narrates
that in 1612 William Watson was fined L10 scots for speaking
disrespectfully to a bailie, with his bonnet on his head. William could
not pay the fine, and was put in durance vile. While there, he attempted
to set fire to the prison, protesting at the same time that “he would
neither acknowledge provost or bailie, king nor casart.” This time the
offender was ordained to be warded in an unfreeman’s ward until the
morn, being market day, and then to. walk bareheaded to the cross, and
after being put in the irons Tour hours, “he is humbly on his knees to
ask God mercy and the bailie pardon for his hie and proud contempt.”
The temperance legislation of the early part of the 17th century might
be worth trying even to-day. In 1617 Parliament enacted, for the
restraint of the detestable vice of drunkenness daily increasing to the
high dishonour of God and great harm of the whole realm, that all
persons lawfully convicted of drunkenness or of haunting taverns and ale
houses after ten o’clock at night or any time of the day except in time
of travel or for ordinary refreshment, should for the first fault pay ^3
or be put in the jougs for six hours. For a third offence the punishment
was imprisonment until they found caution for their good behaviour in
time coming.
The law of evidence is not yet perfect, but as a general rule the
tendency of modern legislation has been to relax the stringency of the
rules which excluded certain classes of witnesses. Up to the seventeenth
century women were not freely admitted as witnesses. Thus in the trial
of Thomas Brownfield for housebreaking in 1661, the Justices came to a
resolution that they would not in time coming admit a woman as a witness
in the matter of theft, but only ex officio. In later trials in the same
century women were admitted, but only on special reasons assigned in
each particular case. Mackenzie states that witnesses were not admitted
if they were not worth L20, but Hume doubts whether this was ever the
rule. He thinks it worth noting however that in 1715 the common
executioner was received as a witness.
Torture, as a method of extorting confessions, was only abolished in the
seventh year of the reign of Queen Anne, and the Courts received the
evidence afforded by various ordeals until late in the seventeenth
century. It is very curious to observe, in an age when the generality of
testimony was received in many cases with much greater caution than is
observed now, the unhesitating manner in which statements extorted under
torture were received and credited. In a black letter tract containing
the confessions of Dr Feane and others, republished in the first volume
of Pitcairn, this passage occurs—“All which, although in the beginning
he denied and woujd not confess, yet having felt the pain of the boots,
he confessed all the aforesaid to be most true and fartheron, the
account continues, “ yet for more trial of him to make him confess, he
was commanded to have a most strange torment, which was done in this
manner following—his nails upon all his fingers were riven and pulled
off with an instrument called in Scottish a Turkas, which in English we
call a pair of pincers, and under every nail there was thrust in two
needles over even up to the heads, at all which torments
notwithstanding, the Dr never shrunk any whit, neither would he then
confess it the sooner for all the tortures inflicted upon him. Then was
he with all convenient speed by commandment conveyed again to the
torment of the boots, wherein he continued a long time, and did abide so
many blows in them that his legs were crushed and beaten together as
small as might be, and the bones and flesh so bruised that the blood and
marrow spouted forth in great abundance, whereby they were ma^de
unserviceable for ever. And notwithstanding all these grievous pains and
cruel torments, he would not confess anything, so deeply had the devil
entered into his heart that he utterly denied all that which he before
avouched, and would say nothing thereunto but this, that what he had
done and said before was only done and said for fear of pains which he
had endured.” This poor creature, the charge against whom was sorcery,
was afterwards burned, notwithstanding his heroism under the terrible
torture to which he was subjected.
Another curious mode of obtaining evidence, or rather a substitute for
it was by the use of ordeals. Most of the ordeals which were in use in
Scotland are more or less familiar to every historical student, and I
shall only refer to that of touch. One of the most curious instances of
the application of this ordeal which I have come across occurred in an
English case, but first let me refer to a singular treatise, published
in 1654, by Dr Walter Charleton, who had been physician to Charles I. In
that work the author says, “The cruentation (and, according to some
reports, the opening of the eyes), of the carcase of a murdered man at
the presence and touch of the homicide is, in truth, the noblest of
antipathies,” and he goes on with great show of learning to demonstrate
that, although the effect may be divine in the institution, it is merely
natural in the production or immediate causes—the touch of the murderer
reviving an idea of resistance which had become part of the blood of the
murdered person, and so causing it to course anew through his veins. Dr
Charleton was not singular in holding such views, for, in the reign of
Charles the Second, similar opinions were entertained by the most
eminent physicians in England. It is no matter for surprise, then, that
in 1628, four persons were put on trial in England for murder, when
practically the sole evidence against them was that the body of the dead
person bled when touched by them. One of the witnesses was the minister
of the parish, and he said “the Appellees did touch the dead body,
whereupon the brow of the dead, which was before of a livid and carrion
colour, began to have a dew or gentle sweat arise on it, which increased
by degrees till the sweat ran down in drops on the face. The brow turned
to a lively and fresh colour, and the deceased •opened one of her eyes
and shut it again, and this opening the eye was done three several
times. So likewise she threw out the ring or marriage finger three
times, and pulled it in again, and the finger ring dropped from it on
the grass.” This was thirty days after the party’s death, and the body
had been exhumed for the purpose of being touched. Had the witness whose
evidence I have quoted from been other than a clergyman, and the
occasion less serious, we would be inclined to suppose that he was
poking fun at the Court when he spoke of this dead body, after a month
spent in the grave, solemnly winking three several times at the
spectators. Yet upon this evidence three of the accused were hanged.
I have mentioned incidentally some of the punishments inflicted in
byegone times, and I shall do little more now than refer to a few of
them. Breaking on the wheel was never a frequent mode of punishment in
Scotland, and was only resorted to in cases of marked atrocity. Witches
were drowned or strangled and then burnt, but sometimes, as- we have
seen, burnt alive. Exposure in the pillory was resorted to when the
sentence inferred infamy or even a lesser degree of disgrace. Offences
against good morals were severely punished by the inferior Church
Courts. The Kirk-Session of Glasgow, after 1665, repeatedly ordered
persons to be taken to the House of Correction, and to be whipped every
day during the Session’s will. In 1587, the same Court adjudged certain
women to be imprisoned and fed fifteen days on bread and water, and to
be put on a cart one day and ducked in the Clyde, and to be put in the
Jugs at the Cross on Monday—the market-day. The Laird of Minto, an
ex-Provost of Glasgow, was on one occasion before the Session, and on
his paying L20 Scots “the Session pass the Laird, considering his age
and the station he held in the town.” A pillar was set apart in the
Churches, and there the delinquent was obliged to stand for, sometimes,
six Sundays in succession, and for a repetition of the offence the
punishment was to repair from his home at six on Sunday morning,
convoyed by two of the elders or deacons, and stand at the church door
bare-footed, bare-legged, and bare-headed, with a white wand in his
hand, till after the reading of the text, then in the same manner repair
to the pillar till the sermon be ended, and then go out to the door till
all be passed from the kirk.
The Civil Courts punished comparatively trifling offences by deprivation
of one or both ears, or nailing one of them to a post or the town cross.
A curious variation of this punishment is mentioned by Mr MacGeorge, in
“Old Glasgow,” as having been in use under an ordinance of the English
Burgh of Lydd, in 1460. In cases of petty theft the offender was to be
nailed to a post by the ear, and left there “with a knife in his hand.”
He might choose the time of his own liberation, but he could only effect
it by cutting off his own ear.
Pressing to death, as a mode of punishment, seems to have been unknown
in Scotland, but this was the statutory punishment in England for
“standing mute” when arraigned for treason or felony, until the twelfth
of George III.
Perjurers, Vagabonds,, and Bards were banished, branded, and sometimes
hung. In the case of perjurers, boring the tongue with a hot bodkin was
also sometimes resorted to.
Although it may not be strictly a punishment, an ancient English
practice may be mentioned, which might with advantage be re-enforced if
the present rule requiring unanimity in the jury is to be adhered to.
When the jurors did not agree before the judges left the town, the
judges might carry them round the circuit from town to town in a cart.
One can imagine that this useful power, if once or twice enforced, would
have so salutary an effect on juries that it would soon be unnecessary
to use it.
Deprivation of the right hand was a punishment recognised by the
statute-law of both England and Scotland, but it does not seem to have
been much resorted to in either country. By a statute of Henry VIII., it
was named one of the punishments for malicious striking in the King’s
Palace, whereby blood was drawn. By a statute of Edward VI., striking in
a churchyard was punishable by loss of the ears—the object apparently
being to prevent disputes between Protestants and Catholics. |
