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Old Scotland - Religious and Social
By Kenneth MacDonald, Town Clerk of Inverness (1890)

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.


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