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The Records of the Proceedings of the Justiciary Court 1661 - 1678
Edited by W. G. Scott-Moncrieff


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 intoĞa 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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