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Chapter X. - The Parliamentary and Juridical


During that period of the monarchy which preceded the eleventh century the revenues of the State were derived from the rents of demesne lands, export and import customs, fines, and escheats. These revenues were collected on the unsupported authority of the sovereign by officers whom he personally named. Up to the reign of Malcolm Canmore there is no record of any national convention or other legislative assembly. Subsequently legal procedure in Scotland began to assume an English impress. Scottish sovereigns became familiar with Anglican modes. Margaret, Queen of Malcolm Canmore, whose pious and useful life closed in the Castle of Edinburgh on the 16th November 1093, was daughter of Edward, last of the Anglo-Saxon kings. A connection with England was renewed when in the year 1100 Maud, daughter of Malcolm and Margaret, espoused Henry I., and so became the English queen. At the court of his sister Maud, David I. mainly resided, till in 1124 he succeeded to the Scottish throne. A national convention was held in the reign of his brother and predecessor Alexander I., when in 1107 it was declared that Turgot was chosen bishop of St Andrews "by the king, the clergy, and the people." William the Lion, who commenced his reign in 1165, assembled several conventions, which transacted business as representatives of the clergy, the barons, and probo homines. These last were vassals of the crown, who, bound to render suit and service at the king's court, were on this account included in legislative announcements. Practically they took no part in public concerns, leaving these to be conducted by the sovereign, the clergy, the officers of State, and the great barons.

At a, National Council held in 1230 there were present one bishop, one prior, two earls, one of these being one of the two Justiciars, the High Steward, and one other baron. The Assembly of Nobles which on the 5th February 1283 acknowledged the Maiden of Norway as heir to the throne, consisted of thirteen earls and twenty-four great knights and barons. And the Convention at Brigham of March 1280, relative to the proposed marriage of the infant queen, included about fifty earls and barons and a like number of ecclesiastics. The first Scottish Parliament met at Scone in 1292 on the summons of the king, John Baliol.

Burghs were first recognized in connection with national affairs, when on the 23rd February 1295 the seals of six burghs were affixed with those of the nobility and barons to an instrument relative to an alliance with France. In the Parliaments of Robert I. are named along with the clergy and barons, "the chief persons of communities," till, at a Parliament held at Cambuskenneth on the 13th July 1326, were voted to meet war and other costs, "a tenth penny of all rents" by those described as earls, barons, burgesses, and free tenants of the realm.

On the part of the lesser barons—the probi hominies of the twelfth, thirteenth, and fourteenth centuries.—attendance at the king's court, and latterly in Parliament, was felt as an intolerable burden. In order to their relief it was agreed in a Parliament held by David II. at Scone in September 1367 that they might be allowed to complete their harvests, by leaving public business to the care of a Committee. Eighteen months later, when a Parliament assembled at Perth in February 1369, business was delegated in like manner. Two Committees were chosen, of which one was subsequently known as the Lords Auditors, the other became prototype of two distinct bodies—afterwards to be prominently associated with national affairs—time Privy Council and the Lords of the Articles. Consisting of twenty-seven members, the Committee of the Articles were nominated at an early stage of Parliamentary business, when the House adjourned in order that they might prepare the bills. And when Parliament reassembled, it was simply, without discussion, to grant confirmation. In 1535 the Lords of the Articles were authorized to make Acts with the whole power of Parliament; they exercised this power by imposing a tax. Referring to his absolute authority in Scottish Parliaments, James VI., in a speech which lie delivered at Whitehall in 1607, spoke thus: "This I must say for Scotland, and I may trewly vaunt it; here I sit and governe it with my pen. I write and it is done, and by a clearke of the Councell I governe Scotland now, which others could not do by the sword. For here must I note unto you the difference of the two Parliaments in these two kingdomes. For there, they must not speak without the Chancellor's leave; and if any man do propound or utter any seditious or uncomely speeches, lie is straight interrupted and silenced by the Chancellor's authoritie. . . If any man in Parliament speake of any other matter than is . . . first allowed by mee, the Chancellor tells him there is no such bill allowed by the king.. . . If [in any law] there be anything that I dislike, they rase it out."

The Committee on the Articles underwent various changes. Under Charles I. in 1633 it was ruled that the bishops make choice of eight lay peers; and that the peers elect eight bishops, when the sixteen so chosen should add to their number eight commissioners of shires, and eight of burghs. Parliamentary attendance was reduced to two days, the first for choosing the Lords of the Articles, and the second to sanction what their lordships had devised.

At the commencement of the Civil War, the Committee of the Articles was abolished. During his ascendancy, Cromwell, who sought a common Parliamentary representation of the three nations, appointed for Scotland thirty members, of whom twenty were to sit for counties, and ten for burghs. But this node being generally obnoxious, Scotland was during the Commonwealth represented in the single legislative chamber by officials of the government, or by English officers. The former Parliamentary system with the Committee on Articles was revived at the Restoration. In 1690, when the Scottish Convention agreed to accept the government of the Revolution, they stipulated that the Committee of Articles should cease.

What had mainly tended to the ascendancy of the court, by the ready acquiescence of the Estates in the delegation of their authority, was the poverty of the lesser barons. While burgesses were entitled to elect representatives, a corresponding privilege was denied to landowners, who were constrained, under a penalty, to attend personally. That attendance involved the heavy cost of taking part in a pageant which accompanied each Parliament at its opening. This was called the Riding of the Parliament. Members of the three Estates assembled at Holyrood Palace, each attired according to his degree, and mounted on richly caparisoned horses and preceded by trumpeters, rode to the place of meeting. In the procession the commissioners of burghs and the lesser barons rode first, next the great barons and the clergy. The great officers of State followed up, preceded by the Lord Lyon, heralds, and pursuivants, bearing the natioval insignia. Last rode the Sovereign, attended by his pages, and followed by the royal guard. Entering the Parliamentary chamber, the members were addressed in a discourse by the court preacher, and after some routine business, were expected to return to Holyrood. To the lesser barons the ceremony was a cause of embarrassment. Their personal and horse trappings were understood, in most instances, to exhaust the revenues of a year. James I. sought to relieve the rural landowners of Parliamentary attendance, by allowing a representation, but his proposal was at the time not carried out At length by a statute passed in 1567 the barons were allowed to send commissioners from their several counties, but were also called upon to defray the costs of the elected. The allowance as costs was in 1661 fixed at 5 daily from the day of leaving home to that of return; but this sum was greatly inadequate. Those entitled to vote at the election of commissioners of shires were by statute in 1585 declared to be "such as have forty-shilling land in free tenandry held of the king." This qualification was undisturbed for two centuries and a half.

Prior to the reign of Robert II. (1371-1390) the Acts of Parliament were composed in Latin, a language in which hitherto all public business and private correspondence had been conducted. The earliest existing MS. which presents any considerable body of the laws in the vernacular is ascribed to the year 1455; it is preserved in the Advocates Library.

From the earliest times the Scottish Parliament met in one house, but the members were not allowed to occupy the same footing, for the great barons and the clergy sat on benches, the officers of state on the steps of the throne, and the commissioners of shires and burghs upon "furmes" Parliaments assembled at Cambuskenneth, Scone, Perth, and Aberdeen, commonly at Edinburgh, where the king chiefly resided. At Edinburgh the Estates convened so early as the reign of King Robert the Bruce. The Parliament Hall of Edinburgh Castle (now the garrison hospital) was reared in 1434. A. spacious chamber, 80 feet in length and 30 in breadth, with an open chestnut roof, richly decorated, it was appropriated to other uses prior to the 3d of February 1489-90, when we find that the Estates assembled in the Tolbooth. The Parliament House of Stirling Castle, a Norman structure, with a hall 120 feet long, was used up to 1571, when in September of that year a Parliament was there held in presence of the infant James VI. The structure was then in considerable disrepair, and when the New ToIbooth at Edinburgh was reared in 1561, it was opened as the Parliament House. Within the New Tolbooth Charles I. held a Parliament in July 1633, subsequent to his coronation. In the same vicinity, adjoining St Giles' Church, a building was in 1640 reared for the accommodation of the Estates. Of this fabric the great chamber, still known as the Parliament House, forms the hall of the College of Justice. Measuring 122 feet in length by 40 in breadth, with an open oak roof, springing from corbels of various designs, it forms an apartment admirably adapted to its present purpose. In the Laigh Parliament House were for a time accommodated the records of the kingdom.

Besides enacting laws, the Scottish Parliament imposed taxes for ordinary and extraordinary purposes, the latter including the coronation and baptismal ceremonies, the destruction of freebooters, and the suppression of insurrections. Taxes were ordinarily imposed upon the land, but in 1692 Parliament levied a poll-tax with a view to meeting the arrears which had occurred in the remuneration of public officers and of the army during the four years which had elapsed since the Revolution. By the poll-tax statute, every person of both sexes, whether householders or lodgers, were required to pay into the Exchequer 6s. yearly. A cottar who followed a trade was also required to male a payment of 6s. From servants who received more than 6 of wages were levied one-twentieth part, and from tenants one merk per hundred of the landlord's valued rent. Burgesses of royal burgles were assessed according to means and substance. From persons who held rank as gentlemen were exacted 3, and from landowners with 50 and under 200 of valued rent, 4; with 200 and under 500, 9; and with 500 and under 1000, 12. Those whose valued rents exceeded 1000, and all knights and baronets, were required to contribute 24, while barons were expected to pay 40, viscounts 50, earls 60, marquises 80, and dukes 100. The poll-tax proved unpopular, and was discontinued.

The Scottish Parliament ceased when, on the 1st May 1707, the political Union with England was fully consummated. In the Treaty it was provided that Scotland should in the Parliament of the United Kingdom be represented by sixteen Peers in the House of Lords, and in the House of Commons by forty-five members. By the Reform Act of 1868 the representation in the Lower House was increased to sixty.

With the event of the political Union it was hoped by English statesmen that the Scottish national insignia, consisting of the crown, sceptre, and sword, would be borne to the Tower of London, but the removal of the symbols was disallowed. In a large wooden chest they were deposited in the Crown Room of Edinburgh Castle, of which the door was made fast.

The original insignia of the Scottish monarchy, including the crown royal and the coronation stone, were by Edward I. removed to London in 1236, when John Baliol was deprived of his sovereignty. A coronet with which, in the absence of the ancient crown, Robert the Bruce was crowned at Scone, was also snatched by English invaders. But a new crown constructed for the coronation of David II. in 1329 continued to be used at every coronation till 1650, when it was at Scone placed on the lead of Charles II. Elegantly fashioned, and richly adorned with jewels, it was in the reign of James V. surmounted with two concentric circles, displaying at the point of intersection a mound of (old, enamelled, also a large cross partee. The circumference of the crown is 27 inches. The sceptre was constructed for James V. in 15:36 during his visit to France. To James IV. the sword of state was in 1507 presented by Pope Julius II.; it is accompanied by a sheath, which is adorned with filigree work, embracing Papal emblems interwoven with acorns and oak leaves.

The regalia were not only used at coronations, but at the opening of every Parliament were borne in procession, and in the place of meeting deposited on a table in front of the throne. When the Lord Chancellor presented a bill for royal sanction, the Sovereign or the King's Commissioner touched it with the sceptre, an act which gave effect to it as a legal statute.

After being used at the coronation of Charles II. in 1650, the national symbols were removed for safety to the Earl Marischal's castle of Dunuottar. The Earl being a prisoner in England, the defence of the castle was entrusted to Captain George Ogilvie of Barras, with a garrison of one hundred men. Faithful to his trust, Ogilvie nobly held out, but as the army of the Commonwealth had triumphed everywhere, permanent resistance was hopeless. What strength might not secure was attained by stratagem. On the counsel of the Dowager Countess Marischal, Mrs Grainger, wife of the minister of Kinneff; a parish in the vicinity, asked permission of the English commander to visit in the castle the Governor's wife, her friend Mrs Ogilvie. The commander having acceded to her request, Mrs Grainger and her waiting-maid entered the stronghold. After a brief interval they returned, each bearing a supposed gift from the governor's wife. For Mrs Grainger held in her lap what passed as a bundle of lint, while her attendant carried what was described as the hards of flax. To those possessing the deeper penetration of the north it would have appeared obvious that a beleaguered garrison would not readily surrender any portion of clothing or the material for producing it; but Cromwell's commander and his staff happily were unsuspecting. The commander, it is alleged, helped Mrs Grainger to her horse, and if this tradition is correct, he had some opportunity of remarking the weight and form of her burden. By the handmaiden were borne the sceptre and sword of state. Never before had Scottish females entered on so daring an enterprise.

The -women quitted slowly the precincts of Dunnottar Castle, but hastily traversed the remainder of their journey to Kinneff Manse, about five miles distant. There did the venerable Countess Marischal hail the success of a stratagem which concerned the honour of the kingdom and the credit of her house. The minister of the parish hastened to complete what his wife had begun so skilfully. The sequel is depicted in a narrative which Mr Grainger supplied to the Dowager Countess: "The 31st March 1652. I, Mr James Grainger, minister at Kinneff, grant me to have in my custody the honours of the kingdom, viz., the crown, sceptre, and sword. For the crown and sceptre I raised ane pavement stone just before the pulpit in the night tyme, and digbed under it ane hole, and putt them in there and filled up the hole, and Iayed down the stare, just as it was before, and removed the mould that remained that none would have discovered the stone to have been raised at all. The sword again at the west end of the church amongst some common seatts that stand there, I digaed doun in the ground betwixt the two foremost of these seatts, and laid it doun, within the caice of it, and covered it up, so that removing the superfluous mould, it could not be discovered by anybody. And if it shall please God to call me by death before they be called for, your Ladyship will find them in that place.—JAMES GRAINGER."

Mr Grainger survived the Restoration, and was privileged to see "the honours" transferred from the earthen floor of his parish church to their former place of keeping—the Crown Room of Edinburgh Castle. There were the regalia, on 26th March 1707, locked up and secured.

So long as the regalia rested in the Union strong box, Scottish nationality was asleep. Scotland at the Union had two Secretaries, the number in 1714 was reduced to one, and when the Marquis of Tweeddale retired from the office in 1746, it was not filled up. What Scottish business fell to be transacted was nominally entrusted to the Lord Advocate, but the bulk of government patronage was really in the hands of one or two powerful families, who therewith aggrandized their friends and rewarded their adherents. Professedly on account of the two Jacobite insurrections Scotland was denied the privilege of embodying a militia. The royal palaces were, without repair, allowed to crumble into ruins. To a grazier were leased the royal gardens at Stirling, while the other precincts of the palace were appropriated to hog-feeding, or allowed to become the resort of gamblers and tinkers, and a haunt of the profane. Such indeed was the condition of the precincts of Stirling Castle so lately as 1855, when it was the privilege of the present writer to induce the authorities to promote a salutary change. Till about thirty years ago, Stirling Castle was in its various structures exposed to those modernizing changes which have deprived it of its ornaments. The older palace was early wrecked, and in 1777 the highly ornate palace of James V. was dismantled of its fittings, including its superb oak carvings, and ruthlessly converted into a barrack. In like manner were broken up the Parliament House and the Chapel Loyal, the former being converted into a barrack, the latter into a store of arms.

At Edinburgh was experienced as keenly as in the provinces the bitterness of alien rule. Within the Castle, the historically precious chapel of Queen Margaret was unroofed, and allowed to fall into decay. An hospital was formed of the ancient Parliament House. The royal apartments, in one of which James VI. was born, were converted into a canteen, or rooms in which soldiers were indulged with liquor. Amidst the remonstrances of the citizens and the protests of the Corporation, a block of barrack rooms was reared in the Castle, which, sufficiently adapted for a rural mill-work, was calculated to deface a city otherwise remarkable for architectural beauty. The palace of Holyrood was allowed to crumble, and its Abbey Church so to suffer from neglect that its roof, in December 1768, fell into the interior, crushing in its fall the gracefully sculptured columns, and wrecking the royal tombs. Then children began to use in their diversions the skulls and other bones of Scottish princes. The skulls of Lord Darnley and Queen Magdalene Were exposed and borne off. Less than a century ago, the Lord high Commissioner to the Church of Scotland was compelled, in lack of accommodation elsewhere, to hold his levees in a tavern; and so lately as 1844 did the General Assembly meet for the first time in an appropriate hall provided by the State. Within the last forty years the Lords Ordinary of the Court of Session listened to pleadings and gave judgment amidst the stir and bustle of the Parliament House.

Nor were the national registers better cared for than the public buildings. The paramount duty of preserving the records, not only for legal and constitutional purposes, but as monuments of history, was suggested by the Lord President Forbes, and about eighteen years subsequent to his decease, the sum of 12,000 for the erection of a Register House was granted by the king from the fund of the Forfeited Estates. But this grant was for nine years resolutely withheld. At length on the 27th June 1774 the Register House was founded, but funds for the completion might not be had till half a century later.

Prior to the depositure of the national records in the Register House, they were kept in hogsheads in the Laigh Parliament House, of which the northern wall was bordered by the damp earth of St Giles' churchyard. The custodiership being loosely discharged, volumes were borrowed and lost. A portion of the Records of the Privy Council were bought as waste paper, and in 1794 eight volumes of the Register of Sasines were at a public sale, purchased by a bookseller, who honourably restored them. The latter incident led to a movement, which, iii the first instance fruitless, aroused a spirit of inquiry. Some influential person, seeking to confirm his title to certain lands, hoped to procure evidence from records not contained in the hogsheads. And a notion possessed him that what was lacking might be found in the Crown Room. Interesting the Barons of Exchequer, they procured a royal warrant authorizing an examination. The instrument being directed to the Great Officers of State, these, on the 22d December 1794, assembled in the Castle. Under the guidance of the Governor, they proceeded to the Crown Room. In the words of their report, it was "secured by a strong outer door of oak wood and two strong locks, the keys of which were not to be found, and the only window barricadoed on the outside by cross-bars of iron, and a wooden frame within." The report continues, "when one set of doors was forcibly entered, another set, consisting of strong iron bars, had to be wrenched open." When at length the interior was reached, there was found in an arched chamber, and resting under six inches of dust, a large oaken chest. Though this was large enough to contain many registers, the Commissioners on examining their warrant concluded that lawfully they might not proceed further. So the search was abandoned, the strong barricades which secured the apartment being stoutly replaced.

The uncertainty which attended the existence of the national insignia was a source of deep concern to Sir Walter Scott, who waited a suitable opportunity for instituting an inquiry. His personal intimacy with the Prince Regent at length enabled him to effectuate his purpose. By a. warrant from the Regent, dated the 28th October 1817, the Great Officers of State, including Sir Walter as a Principal Clerk of Session, were appointed Commissioners to enter the Crown Room, and therein make due search for the regalia. On the 4th February 1818 they executed their mission. As the key of the great chest could not be found, the lock was forced. On the lid being raised were found, under several inches of dust, the long-hid treasures. These were the crown, the sceptre, and the sword of state; also a gold-topped silver rod, which was the Chancellor's mace. With the exception of the sceptre, which was slightly bent, the insignia were in excellent preservation. They are now exhibited in the Crown Room.

Of the ancient Officers of State the highest in rank was the Chancellor. Constituted by Alexander I., he in the reign of Alexander III. received a salary of 100. The royal fiefs were administered under his authority, and lie could grant or recall royal charters. Keeper of the Great Seal, lie by its use rendered valid the regal writs. As President of Parliament, he was conversant both with the civil and the canon law; and usually chosen from among the clergy, he brought to that order much of the influence which it possessed prior to the Reformation.

When Walter, son of Alan of Oswestry, was by David I. appointed civil administrator of his household, lie was styled senescale, that is, senior servant, the seniority implying dignity and rank. The office so created became that of High Steward, which in the person of Walter's representative, Robert II., was merged in the monarchy. As a substitutional officer James I. appointed a Master of the Household, who furnished and arranged the castles and palaces, and was chief of the royal henchmen, pages, and yeomen. A Constable was first appointed in the reign of Alexander I.; he kept the king's sword, led the royal army, and was chief of the barons. From the reign of David I. the office was hereditary in the family of De Morevile, and when that family ceased it was combined with the office of March-scale, or Marischal. The Marischal was keeper of the stable and master of the horse; he enjoyed high rank and exercised a powerful authority. The Marischal's office became hereditary in the family of Keith.

The Chamberlain had (as the name of his office implies) charge of the camera or treasure-chamber. He presided in the exchequer court, which derived its name from the chequered cloth which covered the table at which lie sat. Under his presidentship assembled the Court of Four Burgles, by which the laws of trade and commerce were framed and administered. To the Chamberlain those who considered themselves aggrieved by the decisions of inferior courts prosecuted an appeal; and the penalties imposed by his decisions became a portion of his revenue. These must latterly have been very considerable, for while in the reign of Alexander III. the Chamberlain's salary was 200, his receipts for feudal casualties, escheats, and other perquisites, amounted in a single year to 5313. To lessen the power of the Chamberlain, which had become formidable, James I. established the office of Treasurer. To the Treasurer the sheriffs and other collectors of the national revenue presented their accounts at intervals. Subsequently a portion of the Treasurer's duties were discharged by the Comptroller, who superintended the royal manors. This officer also exercised those functions which at a modern period were discharged by the Barons of Exchequer. In 1596 James VI. appointed as Great Chamberlain the Duke of Lennox, the office, which had become honorary, being made hereditary in his house.

James I. appointed a Lord Privy Seal. By impressing a small seal or signet, this great officer rendered valid writs and gifts less important than those reserved for the great seal in the keeping of the Chancellor. The Secretary was an officer who constantly with the king, received memorials and complaints, and was by the sovereign instructed how to deal with or dispose of them. By his signature royal decrees were made valid. The Lord Clerk Register was keeper of the public archives and Clerk of Parliaments; he also kept the minutes of the Privy Council and of the higher judicatories. The King's Advocate was the sovereign's legal adviser, and by royal authority prosecuted defaulters in the public courts.

These, high officers, deriving their honours from the sovereign, were official members of the Privy Council. They also had seats in Parliament, but when the number of State offices had indefinitely increased, it was in the year 1617 found essential to restrict to eight those permanently invested with legislative authority.

During the reign of David II. a Secret Council was nominated. The king was without issue, and as the succession to the throne was attended with difficulty, it became essential that the question should be considered by the officers of State in secret, also by other councillors of position and experience. The difficulties to be surmounted were these. On the one hand it was known that the king had indicated a willingness to transfer the sovereign authority to the English monarch, while on the other hand Robert the Steward, next in the order of succession, was twice married, and his first wife, Elizabeth Mure, was within the degrees forbidden by the canon law, while his marriage had lacked the Papal sanction. By those who joined in the secret deliberations, it was resolved that the independence of the kingdom be openly maintained, also that the crown be settled upon the Steward and his eldest son by Elizabeth Mure. When that son, who afterwards reigned as Robert III., was from sickness unable to conduct the Government, his elder son, the Duke of Rothesay, was appointed to administer in national concerns along with a council of eighteen persons. Councils for advising the sovereign were thereafter appointed as necessity arose, till 1489, when a Privy Council for aiding the royal authority was constituted permanently. Of this body, the records since the year 1545 have been preserved, and under careful editorship, are now being issued in printed volumes by the Lords of the 'Treasury.

The Privy Council usually consisted of fifty members, those additional to the officers of State being specially chosen by the sovereign. As the executive of the State, the Privy Council. enforced police regulations, and determined important questions relating to civil and criminal affairs. In judicial concerns it was indirectly associated with another court—the Lords Auditors of Parliament—which, like the Privy Council, was entitled to review the judgments and decrees of inferior judges. Changeable with each Parliament, the Lords Auditors consisted of six churchmen, six great barons, and five commissioners of burgles, of whorl several were ecclesiastics. For judicial duties, neither the members of the Privy Council nor the Lords Auditors were specially qualified; and to remedy the defect, James V. in 1532 established, under Papal sanction, a new tribunal intended to combine the functions of the Lords Auditors and of the Privy Council. Of this tribunal, the judges were styled Lords of Council and Session, and there were, along with a president, seven lay and seven clerical members. By the Pope it was understood that a churchman would uniformly be Chosen o preside, and by churchmen was the presidential office held till the Reformation. In 1579 the power of choosing a president was granted to the court itself, but after some changes the right of nomination was reserved for the Crown.

The ordinary lords were at first chosen by the King and Parliament, afterwards by the latter. In the course of testing his prerogative, Charles I., in 1626, displaced the Lord President and six ordinary lords, the remaining eight being allowed to continue on obtaining new gifts of their offices, thereby acknowledging that their former appointments had lapsed on the death of the late kind. In the further exercise of arbitrary power, Charles addressed letters to the Lords of Session, commanding them in certain instances to delay judgment or to hasten it. In a letter addressed to the Court of Session on the 25th November 1626 he, in a matter concerning the Earl of Murray, charged the Court "not to medle." The abuses which attended such unworthy interference became unendurable, and the priest-ridden monarch, in 1641, was necessitated to agree that Scottish judges should not be appointed without Parliamentary sanction. This provision was rescinded at the Restoration.

In 1640 the spiritual side of the Court of Session was abrogated by statute. But the privilege possessed by the sovereign of nominating unsalaried judges, styled Extraordinary Lords, continued a source of irritation till the reign of George I., when these supernumeraries were abolished. At its institution, the Court was endowed with "10,000 golden ducats of the chamber," derived from the bishoprics and monasteries; but the amount was levied so unsatisfactorily that in 1549 the salary of an ordinary lord did not exceed 40. The salaries, augmented from time to time, were, at the Restoration, equal to 200 sterling. In Queen Anne's reign, each lord had a salary of 500. The present salary of a Lord Ordinary is 3000, that of the Lord President 4800, and of the Lord Justice Clerk 4500.

By Act I I George IV., the Lords of Council and Session were reduced to thirteen. Formerly the fifteen judges sat together in one court; but, according to modern arrangements, five judges styled Lords Ordinary decide on all causes in the first instance, the remaining eight judges being arranged in two distinct Courts, called the First and Second Divisions, four sitting in each Court. In the First Division the Lord President presides; the Lord Justice Clerk in the Second. To the First or Second Division causes are brought for review from the Lords Ordinary, or, in legal phrase, from the Outer Mouse. In the Court of Session legal business long proceeded tardily, with the result that while law agents became rich those involved in litigation were by slow stages severed from their estates and homes. When in 1727 the celebrated Duncan Forbes of Culloden became Lord President lie devised an Act of Sederunt, which provided that no cause might be protracted in Court beyond the period of four years. Prior to this provision many causes had been continued twenty years, involving members of successive generations in legal uncertainty and lamentable discomfort.

Collaterally with the Court of Session exists the College of Justice, of which the judges are described as senators, and which in its membership includes the whole legal faculty,—advocates, writers, extractors, and clerks.

Prior to the Reformation a Consistorial Court in every diocese was conducted by a judge named the Official, who was appointed by the archdeacon. To the Official's adjudication were reserved matters relating to legitimacy and divorce; also to movable succession, the fulfilment of covenants, and cases of slander. By the Officials were certified the Public Notaries, whose fitness and personal qualities largely availed in tunes when four-fifths of the nation were unable to write. Ere the Court of Session was established the chief legal business of the kingdom was conducted in the Consistorial Courts of Edinburgh, Glasgow, and St Andrews. Before the Reformation appeals from the Consistorial Courts might only be determined at Rome. These appeals were prohibited in 1560, while on the 8th February 1563 Consistory Courts were superseded by a principal Commissary Court established at Edinburgh. Time Commissary Court, which consisted of four commissioners or lay judges, was gradually merged in the Court of Session. In 1836 it was abolished as a separate jurisdiction. By the statute 4 George IV. c. 97 each county is formed into a separate commissariot, the sheriff being commissary.

To the Lyon Court are referred all questions relating to armorial bearings. The sole judge in this court is the Lyon King, whose authority in Scotland is similar to that exercised in England by Garter King of Arms. Lyon derives his title from his bearing a lion rampant in the emblazonry of his official robe. One of his earlier duties was to convey messages from the sovereign to foreign courts. He now appoints messengers-at-arms and superintends them. On appointment Lyon formerly underwent the ceremony of a coronation. Sir Alexander Erskine, Bart. of Cambo, was on the 27th July 1681 crowned Lyon King at Holyrood Palace by the Duke of York; he was the last who was so distinguished.

The Druids exercised the earlier jurisdiction; they framed laws and executed them. Their courts and legislative assemblies were held on natural or artificial eminences fenced by a ditch and rampart, and which were styled mood-dun—that is, enclosed mounds. When the Saxon superseded the Celtic tongue the name mod-dun was vulgarized into maiden; hence the maiden castle of Edinburgh, the maiden craig of Dumfriesshire, the maiden rocks of Carrick and Fife, and the maiden stones of Ayton, Garrioch, Tullibody, and Clackmannan—all the localities so named being associated with ancient courts.

But the scenes of early jurisdiction have in not a few instances been distinguished as note-hills, mod being converted into the Anglo-Saxon mote, and dun represented by its English equivalent. There are mote-hills in the counties of Roxburgh, Dumfries, Wigton, Lanark, Ayr, Stirling, Perth, and Aberdeen.

In memorial of the ancient ditch and rampart, courts of law are still fenced by the macer in a form of words. The mote-hill was latterly a place of execution. Thus on the mote-hill of Stirling in May 1424, Murdoch, Duke of Albany, and several members of his family, were publicly beheaded under the charge of treason.

Coeval with the Druidic age, and prior to the Roman invasion, a species of legal government was conducted through the instrumentality of a Toshach and a Maormar. The Toshach was an officer racking with the Thane of the Saxons. Elected to his office by the chiefs of a province, these submitted to his arbitration, and in the field accepted his leadership. Galgacus was chosen Toshach by the Caledonians in their early struggle with the Romans. The descendant of a Toshach whose power had been prolonged was regarded as a prince, and latterly was crowned. The Scottish King was a Toshach at the first. A '1'oshach founded clan Mackintosh ; the name is in English the son of the Thane.

Exercising a separate and independent jurisdiction, the Maorivar ruled over his clan, and became their supreme lawgiver and judge; the subordinates of the Maormar were iifuovs, or lesser judges. By Malcolm Canmore Maormars were designated earls, while Maors latterly ranked as barons of baillieries, or inferior officers by whom the mandates of provincial judges were put into execution.

Retributive justice, dispensed harshly to the poor, was tardy among the opulent. At the dawn of history we find trial by ordeal in full operation. A murderer taken red-hand was convicted summarily. But when the criminal, whether charged with murder or theft, pleaded not guilty, and could not be directly convicted, lie was allowed to clear himself by corn-purgation. This was accomplished when a number of leal men swore that they believed him guiltless. The compurgators varied from one to thirty, but usually twelve persons were impanelled. If corn-purgation failed, the accused person appealed to the Divine judgment by challenging his accuser. Judicial combats were witnessed by churchmen in the belief that the innocent would triumph. Knights were allowed to do combat by proxy. Accused persons might elect to be tried by ordeal. The administration of the ordeal was a monastic privilege. There was trial by fire, also by water. Trial by fire was successful when the accused passed over a red-hot iron unscathed, and by water when, if thrust into a lake, he swain safely to shore. In the year 1180 it was ruled by statute, that "na baron have leyff to bald court of lyf and lym, as of jugement of bataile or of watir, or of het yrn, bot gif the scheriff or his serjand be thereat, to see gif justice be truly kepit thar as it ow to be." [Innes's "Scotland in the Middle Ages," Faro., 1869, 8vo, pp. 183-7.]

Trial by the right of wager in battle existed in the reign of David I., the accused being allowed to elect this mode of proving his innocence in preference to "the purgation of twelve lead men." In 1230, during the reign of Alexander II., it was provided by statute that any one acquitted by an assize should not for the same offence be required to submit to an ordeal.

With compurgation and ordeal subsisted a system of compensation, whereby those guilty of public or private offences made recompense both to the persons injured, and also to the State. In the earlier portion of our written law rates of compensation are enumerated. The king is valued at a thousand cows, the king's son and an earl at one hundred and fifty cows, and a villein or ceorle at sixteen cows. A married woman is estimated one-third under the value of her husband. For the wounding of an earl the compensation was nine cows, of a thane three, and of a serf or ceorle one. Next to the revenues derived from the Crown lands and customs, the escheats levied from delinquents proved from the thirteenth century to the sixteenth a chief national resource.

For the more efficient administration of justice, David I. appointed a supreme magistrate, or chief justice, styled the Justiciar. He sat in curia regis, and from time to time held circuit courts or justiceayres.

By William the Lion a second Justiciar was appointed, with his jurisdiction in the Lothians. In the reign of Alexander III. the chief of the Corny ns was appointed Justiciar of Galloway. On his temporary conquest, Edward I. divided the kingdom into four judicial provinces, two justices, an Englishman and a Scotsman, being appointed to each province. On the restoration of the national independence, King Robert the Bruce divided the country into two judicial districts, one to the north, and the other to the south of the Forth. At the chief burgle of each shire the Justiciar held a court three times a year, not only for administering justice, but also in applying it. The fines imposed by the Justiciar were paid into the exchequer, with the exception of a tenth reserved for the use of the Church.

Though occupying the royal judgment seat, the Justiciar was not by any of the kings invested with the entire judicial authority. From the Parliament of 1488, James II. received the following counsel:--"It is avisit and concluded, anent the furthe putting of justice throw all the realnle, that our souerane lord sail ride in proper persoune about to all his Aieris ; and that his Justice [the Justiciar] sall pas with his hienes, to minister justice, as leis thoclit expedient to him and his Counsale for the tyinle."

During a judicial circuit in southern counties made in the same year James occupied two months; he was accompanied by the Chancellor, the Justiciar, the Treasurer, the Clerk Register, and the Justice Clerk. To the last named officer pertained the duty of making from the records extracts of fines. These he placed in the hands of sheriffs, stewards, and Dailies for recovery.

In 1491 Parliament ordered that justice-ayres "be held, set and balden twis in the yere, that is to say, anys on the griss [grass], and anys on the corne.

The proceedings of the justice-gyres from November 1493, and ending July 1513, have been preserved. They are contained in two MS. volumes which, on the 5th March 1880, were deposited with the Clerk of Justiciary, after being for 150 years in the custody of the Faculty of Advocates.

In 1526 Parliament enacted that "our Sovrane Lord be personalie present at the halding of Justice Aires, geif it pleses his Grace;" also "that na Justice Aires be haldin na part, without our Sovrane Lord and his Justice be present." From ordinary justice-ayres, appeals might be prosecuted to the King's Council, or to the Judicial Committee of Parliament, or to Parliament itself. An appeal bore the strange title of "ane falsing of dome."

The office of Justiciar shared the fate of other great appointments of State by passing into a personal office. Early in the sixteenth century it was conferred on the Earl of Argyle. The Earl is named as Justice General in a court which, on the 25th August 152G, was held by his deputy. In the reign of Charles I., Lord Argyle resigned the appointment, but continued to act as Justice General for the sheriffdom of Argyle and Tarbert, and of the Western Isles. After other changes, the sinecure office of Justice General was in 1793 conferred on James, third Dube of Montrose. By a legislative act passed 23d July 1830, the office was, on the ceding of the existing interest, declared to be merged iii the Lord Presidentship of the Court of Session.

Early in the twelfth century Scotland was divided into sheriffdoms, which again were subdivided into wards or bailiaries, or constabularies. The sheriff was king's lieutenant within his particular district. The decrees of the courts of regality and barony were executed under his authority, while from district collectors he obtained their drawings of the public cess, and made account of them to the exchequer. The office of sheriff became hereditary, the duties being delegated to some one in the neighbourhood acquainted with legal affairs. The chief landowner of a bailiary was, as a territorial magnate, constituted the hereditary bailie. Each royal castle was governed by a constable, the field of his jurisdiction, styled the constabulary, extending only to the castle and its precincts. The constable of Roxburgh Castle was also sheriff of the county. When a royal castle, as at Dundee, was associated with a burgh, disputes as to jurisdiction between the constable and the magistrates were not infrequent.

The coroner or crowner was constituted by Edward I. It was his office to compel attendance at the law courts of those charged with crime by seizing their cattle and corn, or securing them personally in ward. An office so liable to abuse was early superseded; it only remains as one of the civic titles enjoyed by the Lord Provost of Perth.

By the magistrates of burghs, especially those of Stirling, Perth and Edinburgh, was possessed a jurisdiction in blood wits, that is the right of trying and pronouncing judgment on persons charged with murder. Thus John Cheislie of Dairy, the assassin of the Lord President Lockhart, was, in 1689, summarily tried and condemned by the magistrates of Edinburgh.

The Justice of Peace Court, instituted in 1609, was empowered to check civil broils and punish those who were disorderly. In 1617 two Justices were appointed for every parish. Agrarian controversies, or those relating to matters of husbandry, were settled in courts of birlaw. Of these courts the judges were selected by husbandmen and approved by sheriffs or other local magistrates. Birley-7nen attended to the rights of outgoing and incoming tenants.

In 1672 was established the High Court of Justiciary, which included five Lords of Session as commissioners or judges, under the presidentship of the Lord Justice Clerk. With headquarters in Edinburgh, the commissioners were authorized to hold circuit courts at Dumfries and Jedburgli, Stirling, Glasgow and Ayr, also at Perth, Aberdeen, and Inverness. From 1708 circuit courts began to be held at the places named twice a year. While in inflicting punishment English judges are ruled only by statute, those presiding in the, criminal courts of Scotland are regulated by common law, that is, the practice of their own courts. That practice has widely varied. The early punishments were singularly harsh. For libelling the Lord Justice General, Dowall Campbell was, on the 24th February 1673, sentenced to have his tongue bored, and to stand two hours in the cuck-stool or pillory. For committing an assault, Andrew Drummond was, on the 29th November 1703, sentenced to be set on the cuck-stool, and "there to have his neck and hands put in the same, and his lug nailed thereto the space of an hour." In a circuit court held at Stirling on the 20th May 1709, the Lords of Justiciary sentenced Thomas Smyth and Janet Walker, for the offence of adultery, "to be taken to the mercat cross of Falkirk, and there to stand with a paper on their breasts bearing these words in great lettres, `Thir are adulterers;'" also to he taken to the parish church of Muiravonside on Sunday, the 29th inst., and to be placed at the church door with the same placard pinned to their breasts. On the 21st November 1726, Isobel Lindsay, whose illegitimate child had died soon after birth under circumstances of suspicion, was by the High Court sentenced to be "by the hands of the common hangman, scourged through the streets of Edinburgh at the five usual places thereof, receiving at each place five stripes upon her naked back, and thereafter to be carried to the Correction-house, there to remain five months." On the 28th December 1726, George Melvil "a notour thief," was "set on the trone, and had his nose pinched." For theft, David Alison was, in October 1727, "pillored," "pinched in the nose," and "sent to the Correction-house." In March 1728, Jean Spence, "a notour thief," was "pillored," "hir lug nailed," and "hir nose pinched."

There being no county or district prisons other than the cells of the tolbooth, criminals were seldom sentenced to imprisonment, and then only for periods rarely exceeding six months. Other punishments were cruel, but imprisonment was farcical. Prisoners in the tolbooths of Edinburgh, Stirling and Perth were till within the last sixty or seventy years allowed to indulge a species of diurnal revelry. The means of conducting their jollities were procured from the good-natured public, to whom the prisoners lowered from a cell-window a small box, with the words inscribed upon it, "Pity the poor prisoners." The box received contributions of tobacco, liquor, and fruit. Banishment from the sovereign's "hail dominions, furth of Scotland," or from one district of Scotland to another was a common sentence. On the 3d July 1711, the Lords of Justiciary banished Euphan Clark from the shires of Forfar and Perth, for ten years. And on the 16th March 1726, Thomas Pyne was banished from the country north of the Tay. The ordinary place, of exile during the eighteenth century was "his majesty's plantations in America."

In 1742, several persons who had violated the sepulchres of the dead, Were sentenced to "scourging and banishment;" in 1823, an offence of the same character was visited with seven years' transportation. So long as the publication of Popish doctrines was held to be penal, those who exercised the rites of the Romish faith were subjected to trial and punishment. At the Aberdeen circuit court, held on the 3d May 1751, Mr Patrick Gordon, residing in the castle of Braemar, was, on the charge of being "Habit and repute a priest, jesuit, or trafficking Papist," found guilty on confession, and was sentenced "to be banished furth of Scotland," "with certification that if ever he return, he, being still a Papist, shall suffer the pain of death."

Ordinary sentences of banishment were accompanied by the provision that the convicts would be publicly whipped in the event of their covertly returning. Thus on the 6th October 1749, the judges of the Inverness Circuit sentenced Christian Ironside to perpetual banishment from Scotland, declaring that "if ever she shall return, she should be taken to the head burgh of the shire in which she is apprehended, and thereafter, upon the first market-day, whipped through the town by the hands of the common hangman, receiving the usual number of stripes upon her naked back." In November 1790, the magistrates of Stirling applied to the Commissioners of Justiciary for counsel as to whether they would subject to a public whipping, a woman who had returned from banishment, and was in a state of pregnancy. Scourging through the market town was a common sentence. So recently as the early part of the present century, persons convicted of perjury were by the Lords of Justiciary sentenced to be scourged.

A first act of theft was, irrespective of the value of the articles stolen, visited with some leniency; but conviction as "a notour," or habit and repute thief, was ordinarily punished by death. From 1790 to 1830, were in the High Court sentenced to death as "notour thieves," in 1790, William Gadesby; in 1791, John Paul and James Stewart; in 1797, John Young; in 1799, Andrew Holmes; in 1811, Adam Lyell; in 1815, William Honyman and John Smith in 1816, John Black; in 1817, John Long and Thomas Mitchell; in 1819, Burne Judd and Thomas Clapperton; and in 1829, Jacob Laird. The majority of these offenders had robbed with violence.

The last criminal who, in Scotland, was hanged for forgery, was Malcolm Gillespie, a native of Dunblane. As an officer of Excise, he had distinguished himself ill the revenue service, and Raving retired on a pension, settled at Skene, Aberdeenshire. But he indulged in financial speculations, and so fell into the offence for which lie suffered. On the 28th September 1827, convicted by a majority of the jury, lie was executed at Aberdeen on the 16th November following. It may be remarked that the judge who passed sentence upon Gillespie was reputed for his humanity, and that the advocate-depute, who resisted commutation of the sentence, was known to the writer as mild, gentle and beneficent. But the humanities in relation to the administration of the criminal law were sixty years ago most imperfectly understood.

Prior to undergoing the highest penalty of the law, criminals guilty of heinous offences were subjected to torture. In 1689, Cheislie of Dalry, who in a state of lunacy assassinated the Lord President Lockhart, was at his trial examined by torture, and being sentenced to death, was drawn on a hurdle to the market-cross of Edinburgh, where his right hand was struck off. Thereafter he was dragged to the gibbet in the Grassmarket. His body was thereafter hung in chains at the spot now covered by the suburban mansions of Drumsheugh.

Alexander M`Cowan, who at the circuit court held at Perth in May 1750, was convicted of murder and robbery, was sentenced to have his right Band struck off prior to execution. The last criminal hung in chains in Scotland, was one Leal, a messenger in Elgin, who at the Inverness Circuit in 1773, was found guilty of robbing the post, and sentenced to death. According to the Inverness Register of Deaths his. body was "hung in chains, at Janet Innes's cairn."

The Justiciary Court now sits each Monday during session, and in spring and autumn proceeds on circuit. In determining causes, the Court is assisted by a jury of fifteen persons, chosen by ballot out of forty-five jurors summoned. The jury may decide by a majority and in addition to the usual deliverances of guilty or not guilty, they are privileged to adduce a verdict of not proven. Formerly when a panel was found not guilty, lie was, in the Justiciary Record, described as "clenzit;" and when guilty, as "fyllit;" if sentenced to death, the recorder set forth that he was "justifiet." Scottish jurors anciently pledged themselves to maintain honest judgment in these tingling rhymes:

"We shall leil suith say,
And na suith conceal, for na thing we may,
So far as we are charged upon this assize,
Be God himsel, and be our paint of Paradise
And as we will answer to God, upon
The dreadful day of Dome."

As public prosecutor, the Lord Advocate was formerly privileged to insist on the conviction of every prisoner by menacing the jurors with "assizes of wilful error," that is with personal penalties. Among the articles of grievance represented in 1689, the Advocate's power of menace against juries was in-eluded. The right of menace was withdrawn. By an act passed on the 31st July 1868, the Lord Justice General, the Lord Justice Clerk, or any single judge in the Court, was authorized to preside alone at any criminal trial.

Apart from the legal tribunals directly sanctioned by the Crown, and in which the judges were justiciars, and sheriffs, and other magistrates, both of county and burgh, there existed courts of regality and barony, in which justice was roughly and arbitrarily dispensed. For a feudal baron was practically invested in the sovereignty of the territory conveyed to him by his charter, and even when the soil was alienated, he continued toe excise a jurisdiction over those who occupied it. And he was bound by no form of process, or restrained by any law, statutory or common.

By statute four crimes, murder, rape, robbery, and fire-raising, were, as "pleas of the Crown," reserved to the jurisdiction of the King's judges; nevertheless the, lord of regality asserted the power of dealing with every description of felony within his feudal domains. He owned the right fosses et fitrca—that is, of punishing by pit and gallows. Under the right f urea the baron could suspend on a gibbet any of his vassals. The punishment fosses was of a twofold kind, since the baron could immure in a pit or dungeon, or sentence to death by drowning. In earlier times the regality prison was a species of pit, partly or wholly underground. In the episcopal castle of St Andrews, founded by Bishop Roger in the year 1200, a circular pit was formed in the rock on which the stronghold rests ; it is nearly thirty feet in depth, with a diameter at top of seven feet, and at base of twenty-seven. Therein offenders against the Church or State were to be immured, and within it in 1544, under the charge of heresy, were confined Friar John Roger prior to his secret assassination, and in 1546 the pious reformer, George Wishart, previous to his martyrdom. Regality prisons were latterly constructed under the arches of the older bridges; also within the damp vaults of unoccupied castles. Within lochs and ponds and in ditches female convicts were soused or drowned. In the baronial. court of Sir Robert Gordon of Gordonston, held. at Drainie on the 25th August 1679, Janet Grant was, on a charge of theft to which she pleaded guilty, sentenced to be drowned next day in the Loch of Spynie. From the practice of the regality courts in extinguishing by water the lives of female offenders, the government of James VII. adopted this mode of silencing those women who ventured to impugn the king's arbitrary rule. Charged with denying that James was entitled to rule the Church according to his pleasure, Margaret M`Lachlan, aged sixty-three, and Margaret Wilson, a girl of eighteen, were on the 11th May 1685 made to perish in the waters of Blednoch.

In the earlier times lords of regality could seldom read or write; hence they appointed bailies to preside in their feudal courts, and otherwise to act on their behalf. Latterly a bailie was appointed to preside in every regality court. The abbot and monks of Cupar had on their home estate a principal bailie and two deputies. At the Regality Court of Dunfermline certain officers connected with the several districts of the jurisdiction were statedly examined concerning "bludes"—that is, as to blood-shedding, whether by slaughter or wounding. On the 6th October 1631 Andrew Alexander "gave up ane blude committed between William Craik and James Barclay." By the Regality Courts of the north was exercised a rigorous authority. Content in their records to enter the naives and offences of accused persons, and the names of jurors, the result of a trial was expressed by such words as "clenzit" or "convickt." To those in the latter category are usually added the words "hangit" or "drounit." In the Book of the Regality of Grant are presented sentences of unparalleled severity. A lad, Donald Roy Fraser, charged with plundering "the socke of a pleughe," was on the 14th June 1692 convicted on his own confession, when the bailie of court, James Grant of Galloway, sentenced the prisoner "to be nailit be the lug with ane Irene naile to ane poste, and to stand flier for the spaice of ane hour without motione, and be allowed to break the griss nailed without drawing of the nail." Having on the 22d May 1696 convicted two ignorant persons, a father and daughter, of "stealing and resetting of sclieip," the bailie of Grant ordered the delinquents to execution. But as "supplication" was made for then by their neighbours, who besides offered to become security for their future good behaviour, the bailie recalled the death sentence, and substituted the following: "That Patrick Bayn be taken immediately from court to the Ballow foot upon the moor of Ballintore, and tyed thereto with hemp cords, and his body made naked from the belt upward, and then to be scourged be the executioner with ane scourge by laying upon his body twenty-four stripes to the effusion of his blood." The daughter was sentenced to be "scourged with thirty stripes till her blood rin doun, and thereafter to be banished from Strathspey." On the 2d September 1697 Ludovick Grant of that Ilk and his bailie, sitting on the bench together, gave sentence that three persons guilty of horse-stealing should be carried prisoners from the court to the pit of Castle Grant, there to remain till Tuesday next, and under guard carried to the gallow-tree of Pallintore, and to be all three hangit betwixt two and four in the afternoon till they be dead." Another offender, Thomas Dow, was at the same time sentenced to be bound to the gallows during the time of the execution, and thereafter to have his left car cut off, and to be scourged and banished the country."

By regality courts were also determined civil causes, and enacted binding regulations in regard to home products. Thus, on the 29th January 1669, the judge of the regality court of Dunfermline considering "the low pryces and waitts [weights] that is given for beer and malt, ordained brewers and tipsters to retail and sell the same at sextein pennies the pynt (instead of twenty) in the several parishes of the regality, under the penalty of ten merkis scotts, toties guoties."

Through the claims asserted by the lords of regality, criminals were not infrequently rescued, from the jurisdiction of the ordinary courts. For a lord of regality could repledge a criminal in the kings court by offering security that he would be tried in his own. Or he might claim the right of sitting with the kin's judge, and thereby impede the even course of ,justice.

Then the regality court, a less important feudal jurisdiction was the court of barony. In the barony court a thief might be punished by a capital sentence, if caught with the fang, "that is if captured while bearing the article stolen." Yet sentence of death could he pronounced only when the criminal was brought up within three suns after committing his offence. Ordinarily the judge of the barony court was expected to confine his administration to the enforcing of statutes for preserving game, and protecting orchards and rabbit warrens. He might also punish summarily those who wantonly destroyed certain saplings of the forest. Hence the rhyme :—

Oak, ash, and elm tree,
The laird may hang for a' the three;
But for saugh and bitter weed
The laird may flyte, but mak naething be't."

Freeholders and landowners, disqualified from holding regality or baronial courts, might act as soyters at a justice ayre. Under authority of the ayre courts, soyters passed upon inquests, and attended to the due execution of sentences. In south-eastern districts the soyter exercised an authority similar to that of the provincial sheriff.

During the reign of William the Lion freeholders were charged to attend the courts of justiciars and sheriff's. In 1449 the command was renewed by statute, while in 1540 it was ordained that those freeholders who owed suit and service in the regality and other courts were to be fined for non-attendance. At "the head court of the bailyearie of Cunningham held within the tolbooth of Irvine," on the 6th October 1674, the depute "unlawed and amerciated ilk of the absentis in the soum of fyfteen pund scotts money for their contumacie, couforme to the, act of Parliament." And from "the Register of the Stewartry of Menteith" (1639-1733), we learn that the heritors and freeholders were bound to be present at each of the head courts held three times a year. On the names being called, those who failed to answer were each amerced in a penalty of 50. In 1672 a statute provided that all freeholders, magistrates, and dignified persons of the shire should wait upon the Commissioners of Justiciary at their several circuits. The rule being found burdensome, a new regulation was made on the 1st May 1760, whereby the attendance of noblemen, barons, and freeholders, was dispensed with, the sheriff and his deputies excepted.

By public statute heritable jurisdictions, realities, and constabularies, were, from the 25th arch 1748, abrogated and dissolved, while a sum of 150,000 was granted from the exchequer as compensation to the holders. To barons and their Dailies were reserved the right of inflicting penalties against those convicted of assault, to the extent of twenty shillings, or by "setting the delinquent in the stocks, for any time not exceeding the space of one month." In civil causes baron-bailies were allowed to decern for debts not exceeding forty shillings, also for the recovery of "mails and duties" from their own tenantry. The owners of baronies did not readily acquiesce in being deprived of their higher authority, and some of them continued to appoint their officers of justiciary long after such appointments could exist only in name.

A new judicial system supervened. Of every county, the Lord Lieutenant was appointed High Sheriff, while under him, yet of independent authority, was nominated as Sheriff-Depute, an advocate who had at least three years' practice in the Court of Session. The sheriff-depute was authorized to hold occasional courts, but his duties were chiefly to consist in considering appeals from the judgment of his substitutes.

For the office of sheriff-substitute was required no special qualification, persons of local respectability being willing, like London vestrymen, to undertake a round of arduous and irksome duties, rewarded solely by the dignity of office. Our lamented friend, the late Dr Hugh Barclay, sheriff-substitute of Perthshire, in one of his entertaining publications, facetiously refers to a sheriff substitute, who, "practising as an apothecary, dispensed justice and medicine alike in scruples, and was conversant with injections and ejections alike; he could also purge witnesses."

At length the importance of securing an effective sheriff' substitute was so generally recognized that in 1787 a small salary was allowed. This was, about twenty years later, fixed at 200, the appointment being still conjoined with some other office. In 1825 it was ruled that the qualifications of every sheriff-substitute should, on his appointment, be certified by the President of the Court of Session, also by the Justice Clerk. Increased emoluments were also provided; these have been augmented by subsequent acts.

To the sheriff and his substitute belong extensive criminal jurisdiction, but the more important causes are, at the discretion of the Lord Advocate and his deputies, reserved for the Court of Justiciary. The sheriff and his substitute may try criminal causes with or without a jury; they may inflict imprisonment for a year, or impose penalties to the extent of fifty pounds.

A dempster or doomster was associated with the court of Parliament; he was Indicator Parliamenti, the conclusions of Parliament being expressed by his voice. The office of heritable dempster to Parliament was, by Robert II. in 1349, confirmed to Andrew Dempster of Cariston. By David Dempster in 1476 were claimed before the Lords Auditors "ten pundis amerciament of fee ilk parliament," also a fee of each justice ayre held in Forfarshire,—claims which the Auditors allowed. On the 7th October 1476, judgment was given in a cause by the mouth of Alexander Dempster, in presence of the king sitting in the Parliament-house with the crown on his head, and the sceptre in his hand. From the earlier times a dempster was connected with every court which exercised criminal jurisdiction. When a criminal was convicted and sentence of death recorded, the dempster was called upon to repeat the sentence aloud. On a handbell being rung by the presiding judge, the dempster entered the court. After repeating the words of the sentence, he added, "And this I pronounce for doom." If the dempster was not forthcoming or his duty was imperfectly discharged, it was held that a death sentence might not be carried out. At a circuit court held in Glasgow on the 10th. May 1723, Margaret Fleck, a married woman, was, on the charge of rough-handling her infant child so as to cause its death, declared guilty of murder and sentenced to death. The sentence is in the Justiciary Record entered thus:

But Thomas Cochran, dempster and executioner of Glasgow, would not make valid a sentence which the evidence (as it appears on the record) did not justify. Undeterred. by his refusal, and the universal sympathy of the people audibly expressed, the two circuit judges, Lords Dun and Pencaitland, sanctioned the following, minute:-

Next morning one Robert Yeats, in consideration of his being appointed dempster of the court, made the doom legal by pronouncing it.

On the 16th March 1773 the Commissioners of Justiciary abolished the office of dempster, and decreed that sentence should be pronounced by the presiding judge, and afterwards read by the Clerk. The abolition arose from an indecent exhibition in the High Court, thus described by Sir Walter Scott. The office of dempster leaving become unexpectedly vacant, one Hume, who had been sentenced to transportation as an incendiary, consented temporarily to fulfil the office. Brought into court to pronounce sentence of death upon a fellow prisoner, he omitted the duty, but warmly reproved the judges for the severe sentence they had imposed upon himself. Hume was forcibly ejected, and it was forthwith determined to avoid the recurrence of so unseemly a demonstration. Early in the present century Lord Justice Clerk Eskgrove introduced the English custom, whereby the judge in pronouncing sentence of death wears a black cap.

It has been alleged that in regalities connected with ecclesiastical establishments, dempsters were unemployed. This is an error. In seeking to extirpate heresy by burning the devoted confessors, Resby and Craw, Bishop Wardlaw of St Andrews appointed as dempster and executioner to the regality a person named Wan, whose office became hereditary in his family. The hangman's acres, situated at Gair Bridge, near St Andrews, are still in possession of Wan's representatives. Till the year 1773 ordinary sentences passed in court were publicly intimated by the macer.

The dempster of court usually executed the sentence which he pronounced. An executioner was appointed to each principal town. He was usually styled "the lockman," since in right of office he possessed the privilege of helping himself to a lock or handful of farm produce from every sack in the market-place. The hangman's measure was subsequently determined by a timber cap or iron ladle, given by the magistrates to every executioner on his appointment. Time executioner of Stirling's collecting cap is preserved in the museum of that burgh.

A century ago, when capital sentences were becoming less frequent, and hence the executioner's office less needful, disposers of grain began to hold that the summary opening of their sacks and the appropriation of their produce was an intolerable infliction. At Dumfries market in 1781 a grain dealer named Johnstone deforced the burgh executioner in his attempt to open his sacks, and in consequence was sentenced to imprisonment. Put the magistrates who gave judgment, apprehending that Johnstone's example might induce a general resistance, sought the advice of counsel. By the legal authority consulted, the executioner's claim and the magisterial action upon it were approved ; but the demand continuing to induce complaint, it was in 1796 wholly withdrawn, while the executioner's salary, payable by the burgh, was proportionably increased. Till the close of the century every burgh lockman had his free house and stated salary, varying from 8 to 10 sterling, together with a special fee for every execution.

The lockman of Edinburgh was an officer both of the Justiciary Court and of the municipality. From the Exchequer he received a salary of five pounds, while latterly, in commutation of his market privilege, he had granted him by the Town Council a weekly allowance of twelve shillings. The execution fee considerably varied. In 1780 James Alexander, lockman of Edinburgh, was by the city chamberlain paid for service at an execution 13s. 4d., with a fee of 2s. 6d. for the use of his rope. Subsequently the lockman received two guineas at every execution.

The Edinburgh executioner was arrayed in grey trousers and vest, with a black velvet coat, trimmed with silver lace. The corporation evinced especial care that he should be properly habited in executing his office upon notable offenders. In reference to the execution of the Regent Morton the Burgh Records present the following entry: "2 June 1581,—The prouest, baillies, and counsale vnderstanding that James, Eric of Mortoun, is to be execut to the deid afternone for certaine crymes of lese maiesty [high treason], ordains Androw Stevinsoun for honour of the towne to caus mak ane new garment and stand of claythis of the townis liveray to thair lokman with expeditious, and Johne Robertsoun, thesaurer, to refound to him the expenssis."

The Edinburgh lockman had his dwelling in the Fishmarket Close, and was expected to occupy a seat specially allocated to him in the Tolbooth Church. In his "Traditions of Edinburgh," Dr Robert Chambers remarks that the lockman, John Dalgleish (frequently named in the "Heart of Midlothian") was a regular communicant, but was accommodated at a special table when all the other communicants had retired.

Those who were appointed to the hangman's office were seldom noted for their personal virtues. From the Burgh Records of Glasgow we derive the following: "7 September 1605.—John M`Clelland, beand apprendit as suspect of theft and challeingit thairfoir, and be the clemencie and grit mercie of the proveist, baillies, and counsale of this burgh was put to libertie, and fred out of the tolbuith and prissounhous thairof, vpon conditiouns gin ever he sould be found within the town agane to be hangit without ane assys, as the act maid thairvpone of his awin

On the 19th October 1576 the Dailies of Edinburgh suspended the lockman from office on account of "his monyfald offeussis in oppressing of the peple for common tulze" [broils]. In his place they appointed Dustyefute " [probably an old pedlar] to act "during thair willis." On the 25th August 1617 the Kirk-session of Perth resolved to inform the Town Council of the vicious life of James Stewart, the burgh executioner, likewise concerning his "cruelty and oppression against poor weak persons." In the reign of Charles II. Alexander Cockburn, executioner at Edinburgh, who was convicted of murder, was executed by the hands of Mackenzie, the hangman of Stirling, whom it was believed he had wantonly traduced. John High or Heich accepted office as executioner at Edinburgh in 1784 in order to escape the sentence of death pronounced upon him for an act of theft he survived till 1817.

Gibbets were reared on eminences styled gallowhills; also where two roads met, and on lonely muirs. A lime tree at the gallows ford, near Crieff, marked the scene of many executions in freebooting times. When a Highlander passed the sombre erection he uncovered, and, expressing a blessing upon himself, added words of execration upon the instrument of doom.

The Edinburgh gibbet anciently stood at the Burgh Muir, about a mile north-westward of the city. But on the 24th August 1586 the Town Council resolved to rear a gibbet in a more convenient locality. "In respect," proceeds the Council minute "that the awld gallowis in the Burrow Mure is failled and decayand, bayth in the tymmer wark and the wallis, and that the sam stands vpoun the grand quhilk is now sett in few, thairfore ordains the sam to be rernovit and tay ne doxv-ne, and ane new gallows of pillers of stayne with waillis to be bigget and raysct narrer the towne in the place levy set thaairfore and pottet be my lord provost, and als consents to contract with ane masoun for doing thairof for the sowme of twa hundreth mark, and the masoun to furneis all necessars of stayne, lynze, and warkinansebip, and the said sownie to be payet furth of the entres syltier of the said mwre."

Of two gibbets subsequently erected at Edinburgh, that chiefly in use stood in the Grassmarket. An execution which took place there in 1774 is thus described by Major Topham:-

The houses from the bottom up to the top were lined with people, every window crowded with spectators to see the unfortunate nian pass by. At one o'clock the City Guard went to the door of the Tolbooth, the common gaol here, to receive and conduct their prisoner to the place of execution, which is always in the Grass Market, at a very great distance from the prison. All the remaining length of the HIill Street was filled with people, not only from the town itself, but the country around, whom the, novelty of the sight had brought together. On the Guard knock-in,, at the door of the Tolbooth, the unhappy criminal made his appearance. He was dressed in a white waistcoat and breeches, usual on these occasions, bound with black ribands, and a nightcap tied with the same. His white hairs, which were spread over his face, made his appearance still more pitiable. Two clergymen walked on each side of him, and were discoursing with hill on the subject of religion. The executioner, who seemed ashamed of the meanness of his office, followed, muffled up in a great coat, and the City Guards with their arms ready, marched around him. The criminal, whose hands were tied behind him, and the rope about his neck, walked up the remaining part of the street. . . . When the criminal had descended three parts of the hill which leads to the Grass Market he beheld the crowd waiting for his coming, and the instrument of execution at the end of it. He made a short stop here, naturally shocked at such a sight, and the people seemed to sympathize with his affliction. When he reached the end he recalled his resolution; and after passing some time in prayer with the clergyman, and once addressing himself to the people, he was turned oil and expired."

Till the commencement of the present century, on the evening prior to an execution, the magistrates of Edinburgh indulged Ca procedure which they described as "splicing the rope;" they met at Paxton's tavern in the Exchange, and made their arrangements over liquor. After every execution at Paisley, the burghal authorities had a municipal dinner. The execution at Paisley of Thomas Potts, in 1797, incurred a cost of 33, 5s. 3d., of which the sum of 13, 8s. 10d. was expended on the civic feast, and the further sum of 1., 14s. 3d. on the entertainment of the executioner and his assistants.

As an instrument of death, the gibbet was reserved for criminals of the baser sort. Offenders of rank sentenced to death were decapitated. At Edinburgh was used a "heiding sweird;" which we learn from the Burgh Records was always sharpened before use. In February 1563, the old heading sword being "failzit," a two-handed sword was acquired in its stead. The famous decapitating instrument known as the Maiden, was constructed in 1565. A beheading machine so named was, in 1541, introduced at Halifax in Yorkshire, its appellative being derived from the Celtic mod-dun, originally signifying the place where justice was administered. Preserved in the Museum of the Society of Antiquaries, the Edinburgh "Maiden" may be thus described : Into an oak beam five feet in length, are fixed two upright posts ten feet in height, and twelve inches apart. Between these uprights in a deep groove works a steel blade, laden with a portion of lead weighing seventy-five pounds. When the executioner unloosed a rope by which the laden axe was supported in the upper part of the groove, it fell heavily on the neck of the criminal which rested on a cross beam, and thereby produced instant decapitation. At least one hundred and twenty persons, including the regent Morton, were by the Edinburgh "Maiden" deprived of life. In 1710 its use was abandoned. The heads of remarkable offenders were anciently placed over the Nether Bow, or on a pike at the Tolbooth.

By the hands of the executioner were performed many odious functions. In 1436, Sir Robert Graham, the chief assassin of James I., was by this officer nailed to a tree, then torn with pincers, and latterly crowned with a red-hot crown. The hangman wielded special instruments of torture. In 1593, the Earl of Orkney's brother was charged with conspiring against his life, and of being assisted in his plotting by Alison Balfour, "a notour witch." Alison, a married woman of untainted fame, declared her innocence, but her supposed perjury was held to aggravate her offence. Her limbs were by the executioner thrust into the caspieclaws, an iron frame, which was gradually heated till it burned into time flesh. As confession could not be obtained, her husband was, in her presence, torn in the rack, or "long irons," Next her son was thrust into the boot, an iron cylinder into -hick the legs were inserted from the feet to the knee ,joints, when by the executioner were delivered fifty-seven mallet-strokes on wedges resting between the case and the limbs until flesh and bones were crushed. Next was brought is Alison's little daughter, to whose hands were applied an iron screw, called the pilniewinks, which, thrusting the nails into the flesh, made the blood spurt from the finger points. Sooner than endure this last spectacle, Alison offered to own herself a witch ; she was now burned by the executioner.

By the Scottish Privy Council, on the 23rd July 1684, was accepted a new instrument of torture. The minute testifying its reception proceeds thus: "Whereas the loots were the ordinary way to expiscate matters relating to the government, and that there is now a new invention and engine called the Thumbkins, which will be very effectual to the purpose and intent foresaid, the Lords of his Majesty's Privy Council do therefore ordain that when any person shall by their order be put to the torture, the said boots and thumbkins both be applied to them, as it shall be found fit and convenient." A few weeks later the cruel myrmidons of a tyrant experimented their new instrument on the hands of the afterwards celebrated Principal Carstairs, whom they desired to confess that lie knew of a confederacy for excluding the Duke of York from succession to the throne. Carstairs endured the application of the new "engine" by the executioner for one and a half hour, yet refused to divulge aught which might embarrass his associates. By the government of the Revolution, the instrument of torture was presented to him in token of admiration and respect.

A pair of thumbkins of large size, which belonged to the burgh of Montrose, is preserved in the National Museum at Edinburgh. It resembles a miniature pair of stocks with a strong central screw. The thumbs were by the executioner thrust into two apertures, who screwed down the upper bar till the bones were
crushed.

Confession was also extorted by means of a prickling iron shirt; it was contrived by General Dalzell, and applied by him to imprisoned Covenanters. Fire-tongs were used, when the thumbkins and iron shirt were not at hand. The points of the tongs being made hot, were extended between the shoulders, and applied to each arm till the flesh was burned to the hones. When confession did not follow, the tongs, heated a second time, were applied under the arm-pits.

The application of torture was specially approved by James VII., under whose government it became common. Not improbably its prescription by the Romish Church may have reconciled to the usage a prince who preferred ecclesiastical usages to the sanctions of humanity. By a decree of Pope Innocent IV., in 1282, magistrates were enjoined to subject heretics to torture in order that they might be urged to confess both against themselves and against others who cherished their obnoxious opinions. In 1640, torture was inflicted in England for the last time and on the 11th April 1689, the Scottish Parliament declared "that the use of torture without evidence and in ordinary crimes is contrary to law."

The method of destroying by fire those charged with heresy or sorcery was clearly derived from the practice of (burning criminals adopted by the Druids. By the executioner the victim was bound with ropes to a stake raised upon a heap of coals and timber; he was then surrounded with faggots, strewn with tar. Having tightened the rope around the victim's neck, the executioner applied fire to the heap, which instantly blazed up. Within less than an hour the body was consumed.

Scourging was a common punishment. The magistrates of Edinburgh scourged by various modes. Ordinary offenders were whipped "at the poultry market," greater offenders "in the correction house," and "riotous criminals from street to street." For scourging each offender the Edinburgh executioner received in the seventeenth century a fee of one pound Scots; the payment was subsequently increased.

The mode of flogging from street to street somewhat varied. On the 10th December 1538 the magistrates of Haddington sentenced a thief to be whipped through the town, "bundyn at the erse of ane cart." In 1697 the Town Council of Hawick sentenced two women for theft "to be taken out of the irons at the tolbuith and publicly scurged thro' the hail toun in the market day, and at the east end of the toun to be brunt on the chiek with the letter H and thereafter to be banished the toun by touck of the drum." In May 1753 Agnes Blyth was for hen-stealing sentenced by the Sheriff of Edinburgh to be whipped through the streets and thereafter banished from the country.

Deprivation of the ear, or "lugging," was anciently inflicted by the executioner upon runaway serfs, latterly on notorious felons. Branding was common. The branding iron of Dunfermline was a rod two feet long, having a square lump of iron at the end, on which were engraved the letters Dun-Reg, that is, Dunfermline Regality. The square end of the instrument being made hot was by the executioner thrust against the offender's forehead. Female offenders were branded on the cheek.

Setting on the 'Iron" was a punishment which prevailed at Edinburgh. It implied that the offender was to be placed in the pillory or jagg at the public weighing place. There were also pillories at St Michael's Well and the Fislimarket. Blasphemers were pilloried. Women who in the seventeenth century were at Edinburgh convicted of impurity were sentenced to be ducked in "the quarry hole," a filthy pool near Leith. Commutation of punishment of a remarkable kind occurred in 1701, when five persons who at Perth were convicted of theft, and would have been executed, were allowed to escape death on accepting "perpetual servitude." One of the number, appropriated as a worker in the silver mines at Alva, had fastened upon his neck a metal collar inscribed thus:—"Alexander Steuart, found guilty of death for theft, at Perth, the 5th of December 1701, and gifted by the justiciars as a perpetual servant to Sir John Areskin of Alva."

The collar, now preserved in the National Museum, was dredged from the Forth, in the waters of which the unhappy culprit had doubtless sought relief from his miseries and serfdom.

Burghal order was strictly enforced. In 1650 the magistrates of Linlithgow inflicted penalties on certain burgesses who had acted towards them with disrespect. One burgess was fined for "not giffing reverence," that is, not rendering obeisance to a bailie; another for having " in his great raschness and suddantie destroyed the head of the tour's drum "was deprived of burghal freedom, fined 50 and obliged to "sitt douse upon his knees at the croce at ten houres before noose, and crave the provest baillies and counsall pardone." On the 5th September 1663 the Town Council of Dumfries deprived the wife of a burgess of municipal privileges for venturing to appeal to the Sheriff against a judgment of the burgh court. The municipal decree is in these words:—"Considering the great abuse of their authoritie by Elizabeth Gibson . . , by writing an address to the Sheriff Depute of Nithsdaile for repairing a wrong done by one of our burgesses to her, whereby she has endeavoured to move the Sheriff Depute to encrotch upon the privileges of this burgh, contrairie to the bound prerogative of a burgess's wife; therefore the magistrates and counsel discharge her of any privilege or libertie she can claim of freedom of trade within this burgh."

The courts of law, numerous as they were, long failed to repel insubordination and check lawlessness. With his Jedwood axe and desperate followers, the Border moss-trooper defied the officers of justice, and at times set the royal authority at nought. When summoned as an offender before the Privy Council, or other court of law, the great barons attended with their armed retainers. Of such retainers the (Treat Earl of Douglas possessed two thousand, a number which rendered him more powerful than the Government. "The backing of parties at the bar," as attendance at the law courts with a body of followers was called, was in 1579 prohibited by statute, but the practice did not then wholly cease.

Prior to the sixteenth century, the lesser barons mainly relied on the, support of their powerful neighbours. To these they granted bonds of manrent, in which in lieu of shelter and protection they made pledge of service. Manned obligations were prohibited by statute in 1457, but for two centuries later, bonds styled of "manrent" were granted by one baron to another in pledge that revenge would not follow on an act of injury, or that long-continued grudges Would peacefully subside.

Personal liberty in the eighteenth century was not quite secure. Between the years 1740 and 1746 a magistrate of Aberdeen, along with the Town Clerk Depute of the city, proceeded without fear of law to kidnap persons in the adjoining districts, and to despatch them to the American plantations. About six hundred men were so seized and borne off. After the battle of Culloden, in 1746, the Duke of Cumberland exercised towards the discomfited insurgents the same harsh measures as had in 1691 been extended towards the Macdonalds of Glencoe. Under form of law, civil tyranny was only less formidable than military violence. The factor's "snash" exercised upon his industrious father, led the poet Burns to compose his odes on the dignity of labour, and on the rights of humanity, which, while intensifying his own fame, have materially tended to repress sycophancy on the one hand and to crush tyranny upon the other.


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