Chapter XXX (1)

SOCIAL STATE OF THE PEOPLE IN THE SEVENTEENTH CENTURY.

AFTER the accession of the King of Scotland to the throne of England, it might have been reasonably thought that the administration of justice would have been improved; but such anticipations were not realised, except on the Borders, where in a short time there was a marked improvement. The King unfortunately employed his increased power to enforce unpopular ceremonies and forms of polity upon the people, and thus retarded their social progress. Moreover, in the reign of Charles I., civil war arose with its inseparable confusion; and from the Restoration to the Revolution, the corruption of the Government was notorious. Some improvement was effected before the Union, but ample room for administrative reform still remained.

From the outbreak of the Civil War the administration of justice was mainly in the hands of the Covenanting party, till the kingdom was subjected by Cromwell. The Protector’s mode of ruling Scotland, and his efforts to administer justice, have already been described.¹ For nearly two years after the death of Cromwell, the higher courts of justice in Scotland were in a state of confusion and abeyance.

¹ See under, page 112, _et seq._

After the Restoration the old forms were revived; the Court of Session was restored, and Lord Stair appointed one of the judges and vice-president of the Session. In 1671 he was installed president of the Court of Session. Stair was a man of great abilities; but he yielded in some degree to the influences of the times, and for ten years gave a general support to the government of Charles II. It was reported that in his judicial career he perverted justice; but there is no reliable evidence of this, and it has never been shown that he was guilty of malversation. According to the anomalous rules prevailing in Scotland, a judge of the Supreme Court was permitted to act as a member of parliament, and in the session of 1681 Stair sat as the representative of Wigton; while he was on the Committee of Articles, and also a member of the Privy Council. He came into collision with the Duke of York and his supporters in the debates on the terms of the oath, which was proposed to be imposed upon all persons in office. Stair declined to sign the oath, and shortly after he was divested of his functions. Then the Government commenced an inquisitorial investigation with the aim of punishing the ex-president of the Session. In his own words, “I was cited before the criminal judges, before the Council, and before the Parliament; and hundreds of examinations and re-examinations were taken against me, even of my most intimate servants, and my sister-in-law, not in the regular way of probation, but by way of inquisition, to found a process upon any special matter, which was never done, because nothing was found against me.” He retired to Holland in October, 1682, and did not return to Scotland till the Revolution.¹

¹ Sir George Mackenzie’s _Memoirs_; Graham’s _Annals of the
Viscount, and First and Second Earls of Stair_, Volume I.,
pages 17, 50; see also Sheriff Mackay’s _Memoir of Lord
Stair_, pages 133‒138, 141‒150, 178‒186; 1873. During the
ten years following his appointment to the presidentship,
he composed the first draft of the Institutions of the Law
of Scotland. This great work, upon which Stair’s fame as
a lawyer mainly rests, was originally intended for his
own particular use――“that he might be the more clear and
determined in his judgments in the matter of justice.” In
the dedication of the first edition of 1681 to the King,
he says that “his modesty did not permit him to publish
it previously, lest it should be judicially cited where he
sat.”

Burnet says: “Dalrymple was president of the Session, a man
of great temper, and of very mild deportment, but a false and
cunning man, and a great perverter of justice: in which he
had a particular dexterity of giving some plausible colours
to the greatest injustice.”――_History of His Own Time_,
Volume II., page 45.

In 1674, the question whether there should be appeals to parliament from the decisions of the Court of Session, or not, was disputed. The Government insisted that no appeals to parliament should be allowed; the Scotch bar was divided in opinion on the point, but Lockhart and Cunningham, and about fifty members of the faculty, maintained that there was a right of appeal to parliament. As the Government held a different view, they were suspended from the exercise of their profession, and banished from Edinburgh. The dispute was prolonged for two years, and ended in a kind of compromise.

Lord Stair’s son, Sir John Dalrymple, afterwards first Earl of Stair, was a man of great talents, but impulsive and unscrupulous. About the end of the reign of Charles II., he fell into disfavour with the Government, and was for a time imprisoned. But after the accession of the Duke of York, Dalrymple left Edinburgh for London in December, 1686; and in February, 1687, he returned Lord Advocate.¹ He succeeded Sir George Mackenzie in this office, who it seems had been shocked at the King’s dispensing prerogative, but Dalrymple was not hampered by scruples of conscience, and at once complied with the King’s projects.

¹ “February 14th, 1687. Sir John Dalrymple, now King’s advocate,
arrives; lately twice in prison as a malefactor, and in very
bad circumstances with the Government, he comes down from
London to Edinburgh. His coach broke with him at Tranent. He
has got a precept from the King for £1200 sterling, whereof
£500 was his fine which Queensberry and Claverhouse exacted
from him three years ago; the other £700 for his charges in
this last journey to and from London, and for loss of his
employment during that time. He has brought with him an ample
and comprehensive remission of all crimes to his father,
Lord Stair, particularly for their reset and converse with
traitors, and to his little son, who accidentally shot his
brother.”――Fountainhall’s _Historical Notices_.

It has been freely admitted that the fountain of justice was utterly polluted during the reigns of Charles II. and James VII. “The Scottish bench had been profligate and subservient to the utmost conceivable extent of profligacy and subservency.” Besides the oppression of the people, which the courts too often sanctioned, even men in high political posts employed their functions to plunder their political opponents, with as little scruple as the victors on a battle-field. A statesman, who had a personal case before the court, sometimes took his seat on the bench, where he had an _ex officio_ right to be, and looking with a significant glance, defied the lawyers, on their peril, to give a decision adverse to him. Some of the remedies attempted by Parliament reveal the abuses which prevailed. These were framed to prevent judges from going out of their course to benefit themselves or their friends: one rule, for example, enjoined that when the court came to a judgment, it should be written out in their presence, and immediately signed, because it seems no officer of the law, however high, could be entrusted to state the decision honestly. In 1693, it was enacted that criminal trials should be held with open doors in presence of the panel or accused, the jury, and all others. The Revolution Parliament claimed the right of choosing the new bench of judges, and passed an act on the point, but it did not receive the royal assent. Parliament then “shut the Signet,” until steps were taken for filling up the bench.¹

¹ Dr. Burton’s _History of Scotland_, Volume I., pages 72‒74,
1853; _Acts of the Parliaments of Scotland_, Volume IX.,
pages 104, 282‒283, 305; Appendix, pages 135‒136.

But King William re-opened the Signet and appointed a new bench of judges in November, 1689, on the strength of his royal prerogative. The commission named the fifteen lords of Session, and the list commenced with Lord Stair, who was re-appointed president of the Court. Three of the new judges had been on the bench before, and the Court immediately met and went through the legal forms of admitting the new judges. The president told them, “that, although he was restored by way of justice according to the King’s declaration, yet he was willing to submit himself to the lords, and if they were not satisfied that he should resume that heavy charge, he would not in so disquiet a time, and in such a charge, subject himself to so much trouble and toil;” and he then retired to another room. Whereupon their Lordships unanimously concurred in the King’s nomination of Sir James Dalrymple of Stair to be president, as a man most worthy to discharge that trust.¹ The fifteen judges being duly installed, justice was restored to its customary channel; and this constitution of the supreme court continued with little variation, till the beginning of the present century.

¹ “This rule of submitting the election of the president to
the other judges, the real appointment being with the Crown,
could not well have had any other result in the present
instance, considering that the whole bench of judges was
assorted and the nominations advised by Stair himself. As
to this, Forbes of Culloden, father of the president Duncan
Forbes, remarks: But one thing at that time became apparent,
that however my Lord Stair might profess, he desired petty
men to sit with him upon the bench; he shunned any who he
thought would debate with him, and took in, so far as he
could, none but such as he knew would comply with him.”
_Culloden Papers_, page 326; Graham’s _Annals of Viscount
Stair, and the First and Second Earls of Stair_, Volume I.,
page 89.

There was still much crime in the nation; murder and manslaughter were common, and, as already stated, feuds among the nobles and the Highland chiefs were endless. Captain James Stewart, a member of the Ochiltree family, was slain by Sir James Douglas of Parkhead in 1595. At that period a noble was not usually punished as a malefactor; his crime was either expiated by a fine or by the interposition of the King reconciling the friends of the injured party to the offender and his friends. Thus the feud between the Ochiltree Stewarts and Sir James Douglas and his friends was continued. From time to time they had come under heavy securities to keep the peace towards each other; and so Lord Ochiltree and Sir James Douglas, now Lord Torthorwald, became bound for a sum of £5,000 each to keep the peace, and brothers and nephews of Stewart for smaller sums――an arrangement that was renewed on the 30th of May, 1608, to endure for a year. All seemed quiet in Edinburgh, but on the morning of 14th July, Lord Torthorwald was walking unattended in the High Street, when William Stewart, the nephew of the man who was slain twelve years before, approached and instantly stabbed him in the back, and he immediately expired. The murderer escaped, and no more was heard of him. The same day, the Privy Council held two meetings to consider what should be done. They ordered that the Earl of Morton, James, Commendator of Melrose, Sir George and Sir James Douglas, uncles of Lord Torthorwald, William Douglas, Archibald Douglas, and Sir James Douglas of Muirston, all friends of the murdered man, should be confined to their lodgings; and Lord Ochiltree, whom the Douglases might be eager to attack, was also commanded to remain within doors. This deed recalls a series of murders, which stretched back to the slaughter of Stewart in 1595, and to Stewart’s persecution of the Earl of Morton to the scaffold in 1581; also, this William Stewart was the son of the Sir William Stewart who was slain by the Earl of Bothwell in 1588.¹

¹ Pitcairn’s _Criminal Trials_, Volume III.; _Register of the
Privy Council_, Volume VIII., pages 101, 144, 158, 185, 215,
239, 246, 251, 344, 348, 646, 667, _et seq._; Volume IX.,
pages 5, 10, _et seq._; Volume X., pages 1, 45.

In the early part of the seventeenth century, the records of the Privy Council are full of cases of assaults, committed by men of rank and by others, upon persons whom they hated. It would be tedious to enumerate even those which occurred in a single year. There were Acts of Parliament forbidding men to carry arms, but in almost every case we find the parties implicated in these acts of violence, described as wearing steel bonnets, gauntlets, plate sleeves, and with swords and pistols.

Gavin Thomson, a burgess of Peebles, was greatly hated by Charles Pringle, another burgess. One day in September, 1608, as Gavin was walking in the High Street, Pringle, with nine others, all armed, attacked and wounded him on the left hand, then thrust him into a house and locked him up, intending to have him slain there; but the minister of the burgh, assisted by other peaceable persons, came and rescued him. For months after this Pringle and his associates lay in wait several times to kill him, and prevented him from going to church or market, or attending to his farm. On the 2nd of December, while he was walking in the street, they again attacked him with weapons, wounded, and threatened to slay him outright, had not timeous relief been at hand. The assailants had wounded several persons of rank in the scuffle, and the Privy Council denounced them as rebels.¹

¹ _Burgh Records of Peebles_; _Register of the Privy Council_,
Volume VIII., pages 208, 682.

A strife broke out between the Earl of Caithness on the one side, and Sir Robert Gordon of Kinmoninie and Donald Mackay, on the other. This affair is highly illustrative of a condition of society which was gradually changing and improving. In 1599, Arthur Smith, a native of Banff, had got into trouble for coining, but he contrived to escape the punishment of the law by making a lock of a peculiar device, which gained him the favour of the King. Afterwards, having entered the service of the Earl of Caithness, he commenced and continued coining for seven years in a recess under the Earl’s castle. Naturally the counties of Caithness, Sutherland, and Orkney, were soon found to be flooded with counterfeit coins, both of silver and gold. Sir Robert Gordon reported the case, and the Privy Council commissioned him to apprehend Smith and bring him to Edinburgh. While this case was pending, William M‘Angus, a noted freebooter, was captured and imprisoned in the Earl’s castle, but he escaped and fled into Strathnaver. There the Sinclairs made an attempt to seize him, but he eluded them; they, however, took a man, Angus Herriach, who they thought had assisted M‘Angus to escape. This man was also lodged in the Earl’s castle without a warrant; and Mackay then appeared and claimed Angus as his man, and Caithness had to give him up.

Smith, the coiner, was living in Thurso under the protection of the Earl of Caithness, when a party of the Gordons and Mackays arrived to execute the warrant for apprehending him. They had already seized him and a quantity of his counterfeit coins, and were making off, when a party of the Sinclairs came to the rescue, and a fierce conflict ensued on the streets. John Sinclair, the Earl’s nephew, was slain, his brother wounded, and the Earl’s retainers were driven back. During the fight Smith was coolly put to death, lest he should escape, and the invading party then retired. The Earl of Caithness was greatly enraged, and considered the affair a disgraceful encroachment upon him in the heart of his own county. The strife was next transferred to Edinburgh, where the parties raised counter-actions against each other before the Council. Both parties appeared in the capital on the appointed day, accompanied by their friends. With the Earl of Caithness there was his son, Lord Gray, the Lairds of Roslin and Cowdenknowes, the Earl’s two brothers――Lairds of Murkle and Glenland; these were the chief men on Caithness’ side. With Sir Robert Gordon and Donald Mackay there were the Earls of Winton, Eglinton, and their followers, the Earl of Linlithgow with the Livingstons, Lord Elphinstone with his friends, Lord Forbes with his friends, Lord Balfour, Mackay the Laird of Larg, in Galloway, the Laird of Foulis, the Laird of Duffus, and their followers, and others of the name of Gordon. The Earl of Caithness was much grieved, when he saw that his opponents so far outnumbered him. All these parties had come to Edinburgh to see that justice should be done, and to outbrave each other in forcing the Court to give a favourable decision on their own side. While the Privy Council was trying to exact security from the opposing parties for their peaceable behaviour, both parties despatched private messengers to the King to give him a favourable impression of their cases. The King repeatedly sent instructions to proceed against them with all the rigour of law and justice, but this was a difficult matter. While the affair was pending, the Marquis of Huntly’s son, Lord Gordon, arrived at Edinburgh from court, and the Earl of Caithness imagined that he had an unfavourable view of his case, “So, late in the evening, the Lord Gordon, coming from his own lodgings accompanied with Sir Alexander Gordon and others of the Sutherland men, met the Earl of Caithness and his company on the High Street; and, at the first sight, they fell to jostling and to talking, then to drawing of swords, and friends speedily assembled on both sides. Sir Robert and Mackay, with the best of the company, came presently to them; but the Earl of Caithness, after some blows given and received, perceiving that he could not make good his part, left the street and retired to his lodging; and if the darkness of the night had not favoured him, he had not escaped so. The Lord Gordon taking this broil very highly, was not satisfied that the Earl of Caithness had given place, and departed, but moreover, he with all his company crossed thrice to the Earl of Caithness’ lodgings, thereby to provoke him to come forth; but perceiving no appearance thereof, he retired himself to his own lodging. The next day the Earl of Caithness and Lord Gordon were reconciled by the Privy Council.” But several years passed ere these troubles were terminated.¹

¹ Pitcairn’s _Criminal Trials_, Volume III., pages 32, 231‒232;
_Register of the Privy Council_, Volume IX., pages 352, 413,
731; Chambers’ _Domestic Annals of Scotland_, Volume I.,
pages 436, 439.

The Earl of Caithness was one of the most unruly men of his time, and in his own district wielded an almost despotic sway. He is represented as a base and selfish man, about half of his life being passed in outlawry. Sometimes he was at war with the Sutherland family, sometimes with the Mackays of Strathnaver; one year he was proclaimed a rebel, at another time he was honoured with a royal commission against some other rebels. He was deeply in debt, but this did not disturb him much; and his son, having become responsible for him, was imprisoned in Edinburgh for five years by his father’s creditors, while Caithness himself enjoyed a life of freedom in the far north. He was denounced a rebel in 1621; and Lord Berridale, his son, asked and obtained a commission to pursue his father, and was released from prison for the purpose of assisting in bringing him within the grasp of the law. In September, 1623, Berridale and Sir Robert Gordon entered Caithness at the head of a strong force, but they had not advanced far when the Earl, perceiving that he was unable to face them, fled, and sought refuge in Orkney, thence intending to go to Norway. Many of the inhabitants received Gordon with civility; and the Commissioners having taken possession of the castles in the Earl’s territory, and made arrangements for the peaceable government of the county, Sir Robert Gordon returned in triumph to Dunrobin Castle, and disbanded his men. This Earl of Caithness died in his own county in comparative obscurity in 1643, at the advanced age of seventy-eight.¹

¹ _Register of the Privy Council_; Pitcairn’s _Criminal
Trials_, Volume III., page 310; Gordon’s _History of the
Earldom of Sutherland_.

In 1614, he was entrusted with a royal commission to reduce the Earl of Orkney; and a brief notice of this Earl’s career may serve to illustrate the state of society in that remote part of the kingdom. Patrick Stewart, Earl of Orkney, was related to the royal family, as his father was a natural son of James V.; and it seems that he attempted to make himself king over the Orkney Islands. It is stated in contemporary records that he collected a large yearly revenue, and that he rigorously exacted very high rents and dues from his vassals and tenants; further, that “his pomp was so great in Kirkwall, as he never went from his castle to the church, nor abroad otherwise, without a company of fifty musketeers and other gentlemen of guard; and such like, before dinner and supper, there were trumpeters that sounded till the meat of the first service was set at table, and also at the second service, and consequently after the grace. He also had his ships sent to the sea to intercept pirates, and to collect tribute of foreign fishers, that came yearly to these seas. Whereby he made such a collection of great guns and other weapons of war as no house, palace, or castle in all Scotland was furnished with the like.”

On 27th December, 1608, the Earl of Orkney was summoned to answer for acts of usurpation of the royal authority during the preceding twenty years. His indictment contained a long list of charges, but he denied that these were crimes, and maintained that he had sufficient authority to do all that he had done, which he could show at the proper time and place. He was present at a meeting of the Privy Council on the 27th of June, 1609, and on the 4th of July he was imprisoned in the Castle of Edinburgh. The people of Orkney and Shetland were still oppressed by the Earl’s brother, James Stewart, and other deputies and agents whom the Earl had appointed to rule during his absence. Referring to this, the record stated that the King had expected that the proceedings against the Earl would have procured some peace to the “poor distressed people there,” and would have restrained the insolence of his deputies and servants. Yet it appeared that the Earl’s agents and friends, assisted by the captain of the Castle of Kirkwall and the soldiers under him, still “continue all forms of oppression, not only against those who presented their complaints against the Earl, but also against all others of whom they hope to extort any profit; so that the King’s poor subjects within these bounds are in as bad a state and condition now under the tyranny of the persons above mentioned as they were before in the time of the Earl’s own rule.” Stewart, the Earl’s brother, and others were denounced as rebels for non-appearance in court. The Earl’s case was hung up, and he was detained a prisoner in Edinburgh Castle; and it seems that the King was inclined to come to a compromise with him, but he was not disposed to temporise, and still entertained the hope of regaining his island kingdom. He attempted to escape from Edinburgh Castle, and was then removed to Dumbarton Castle, where it was thought he would be more secure. But in spite of this, he found means of instructing his natural son Robert, who proceeded to Orkney in 1614, mustered a company, seized the castle of Kirkwall, and fortified the church. A great number of the inhabitants joined him, and it soon became known that Orkney had rebelled against the Crown. The Earl of Caithness was then in Edinburgh endeavouring to obtain a settlement for crimes and offences of his own, and it occurred to him that it might be easier to make a compromise with the Government by offering his assistance to punish others. His service was accepted, and he immediately sailed for Kirkwall with a strong force to reduce the Lord of Orkney. He found that the castle was strong, and many of the inhabitants in favour of the rebels, while he had great difficulty in finding provision for his men. He besieged the castle for the space of a month; it surrendered in September, 1614, and Lord Robert Stewart was carried to Edinburgh a prisoner.

This youth of twenty-two years was then tried for high treason, condemned to death, and executed on the 6th of January, 1615, with five of his companions. His father, the Earl, the real moving spirit of the rising, was tried, convicted, and sentenced to death, and beheaded at the Cross of Edinburgh on the 6th of February, 1615.¹

¹ Pitcairn’s _Criminal Trials_, Volume III., pages 81‒87,
272‒307, 308, 327; _Register of the Privy Council_, Volume
VIII., pages 214, 306, 312, 433, 611, 619, 845, also Volumes
IX. and X.

The Government had several modes of dealing with the feuds and unruly habits of the Highlanders, some of which have already been indicated in the preceding volumes. Sometimes, as in the Lowlands, authority was given by the Government to one party to make private war on another, as in the cases noticed above; in other instances, the Crown entered into an arrangement with Argyle in the south-west, and with Huntly in the north, to restrain and punish, and even “to extirpate the barbarous people.” Lastly, there was the extreme expedient of granting “letters of fire and sword.” These were licences from the Government for the most severe and cruel kind of civil war, with the aid and encouragement of the executive to one side in the strife. These letters authorised the favoured individual or clan to burn, to waste, and to slay, all within the territory of their enemies, or the district specified in the licence; and the licenced parties were freed from any legal annoyance as the result of the conflict. Such letters or commissions usually read thus:――“Whatever slaughter, mutilation, bloodshed, fire-raising or violence, may be committed, shall be regarded as laudable, good, and warrantable service to his Majesty and to his Government.”¹ The frequent granting of letters of fire and sword is a lamentable proof of the weakness of the government, of the law, and of the lack of police organisation.

¹ _Register of the Privy Council._

After the accession of the King to the throne of England, various attempts were made to reduce the people of the Highlands and the Western Isles to the authority of the Crown. The efforts of the Government for a time promised considerable success; a number of Highland and Island chiefs were captured and imprisoned, and others placed under caution for their good behaviour. The King commissioned Bishop Knox with power to make arrangements for promoting the peace and obedience of the Isles; and, at his instance, nine chiefs agreed to a bond of obedience to the authority of the King at Icolmkill on the 24th of August 1609. The names of these chiefs were――Angus Macdonald of Dunivaig in Islay; Hector Maclean of Duart in Mull; Donald Gorm Macdonald of Sleat in Skye; Rory Macleod of Harris; Rory Mackinnon of Strathordaill in Skye; Lauchlan Maclean of Coll; Donald Macdonald of Ylanterim in Moydart, Captain of Clanranald; Lauchlan Maclean of Lochbuy in Mull; and Gellespie Macquharrie of Ulva: these bound themselves by solemn oaths to future obedience to the King and the laws of Scotland. This bond is known under the title of “the Statutes of Icolmkill.” The statutes were nine in number and dealt with the following subjects:――1. The ruinous churches to be repaired, and a regular parochial ministry to be established and maintained, with the same discipline as in other parts of the kingdom, the same observance of Sunday and other moral rules, and the suppression of irregular marriages. 2. Inns to be erected in convenient places in all the Islands for the accommodation of travellers, so as to extinguish mere idle wandering, and the burden on the resources of poor tenants and crofters by the habit of indiscriminate quartering. 3. That all idle vagabonds without visible and honest means of living should be cleared out of the Isles; and that the chiefs should cease from capricious exactions upon their clans, and be content with a household retinue of as many gentlemen and servants as his means will support,――that is, Maclean of Duart with eight gentleman, Angus Macdonald, Donald Macdonald, Rory Macleod, and the Captain of Clanranald, with six gentlemen each, and so on with the rest. 4. All sorning and begging, and the custom of conjie to be put down. 5. A main cause of the poverty and disorder of the Islanders being their excessive drinking of strong wines and _aqua vitæ_, brought in amongst them partly by merchants of the mainland and partly by some traffickers dwelling amongst themselves, all general importation or sale of wine or _aqua vitæ_ to be stopped under penalties, reserving liberty, however, to all persons in the Islands to brew _aqua vitæ_ and other drink to serve their own houses, and to the chiefs and other gentlemen to send to the Lowlands for the purchase of as much wine and whisky as they may require for their households. 6. Every man in the Islands possessing sixty cows, and having children, should send at least his eldest son, or failing sons, his eldest daughter, to some school in the Lowlands, and there to be taught until they be able to speak, read, and write English. 7. An Act of Parliament prohibiting all persons from carrying firearms out of their own houses, or shooting with such at deer, hares, or fowls, to be strictly enforced within the Islands. 8. The chiefs should not entertain wandering bards or other vagabonds of that sort; and all such persons should be apprehended, put in the stocks, and expelled from the Islands. 9. For the better keeping of these statutes, and in accordance with the rule that the principal man of every clan is answerable for all his kinsmen and dependents, this present agreement to be a sufficient warrant to all chiefs and sub-chiefs to apprehend and try malefactors within their bounds, seize their goods for the King’s use, and deliver over their persons to the competent judge to be further dealt with; the chiefs become bound not to reset or maintain within their bounds any malefactor that may be fugitive from the bounds of his own natural superior.¹ The Government of the time seem to have thought the above regulations a great achievement; yet it does not appear that they became operative. The Government continued to pursue the clan Gregor with the utmost extremity of fire and sword.

¹ _Register of the Privy Council_, Volume IX. pages 24‒30.

The social state of the Highlands, however, was not much improved in the seventeenth century. Old feuds and grudges among neighbouring clans often led to a kind of invasion of the territories of each other, ending in extensive depredations, and frequently in loss of life. About the year 1666, the Government appointed some of the chief men in the disturbed districts to raise a force among their dependents, to put the law into execution against the offenders. The region of Strathspey, and the mountainous tract thence extending towards Perthshire and Aberdeenshire, had often been in a disturbed state during the century; and at this time the Council granted a commission of “fire and sword” to John Lyon of Muiresk, and Alexander, his son, against a large number of outlawed persons, enumerated by name. But before he was prepared to carry his commission into effect, the outlaws attacked his house, set it on fire, and slew him and his son. The lawless party then proceeded to the small town of Keith, attacked and plundered it, and decamped. A commission of fire and sword was given to the Earl of Moray, which had the effect of bringing Patrick Roy Macgregor, who seems to have been the ringleader of the gang, and some others of his confederates to justice. In March, 1667, they were tried at Edinburgh for sorning, fire-raising, theft, and murder, and condemned and executed; and in May, 1668, other two men of this gang were tried and executed.

In 1670, the Privy Council issued an order, stating that many persons in the Highlands were in the habit of travelling through the country attended by idle bands, which occasioned stealing and sorning; all persons were therefore forbidden to travel or congregate in this fashion.

The messenger-at-arms and officers of the law often encountered violent resistance in the Highlands when delivering their summonses, and attempting to apprehend debtors and offenders. In the winter of 1671, John Campbell, with two witnesses, proceeded to Caithness, to execute letters of caption and inhibition against some gentlemen in that region, but they were seized by Captain Sinclair and shipped for France. By the action of winds and waves, however, the ship, after being some time at sea, came back to Thurso, and the three officers of the law were again seized and imprisoned, and guarded as if they had been criminals. The Privy Council ordered that they should be released, on the singular ground that they had given security to answer any charge which Captain Sinclair might bring against them.

Rudeness and contempt of the law were often manifested, and outrages frequently occurred on Sunday, even during public worship. An Act of Parliament had been passed in 1592 against outrages in churches, but it had little effect. In 1608, a complaint was lodged against Alexander Mortimer for assaulting the minister, by taking off his hat and striking him in the face with it. A complaint came before the Synod of Aberdeen, in 1664, against William Creichton and his wife, stating that they had, in the parish church of Auchterless, on a Sunday, blasphemed, cursed and swore, and reproached and threatened the minister in the pulpit. While at the same date, Forbes of Newe, and Forbes of Edinglassie, with their friends, fought and wounded each other on Sunday.

Society in the chief burghs was more peaceful and life more secure than in the Highlands and in some parts of the Lowlands; yet even in them crimes of violence were constantly occurring. In 1608, one of the bailies of Glasgow, James Inglis, in company with James Young, in the exercise of his functions charged Thomas Paterson to go with him to the jail, which he had before broken out of, and while in the act of taking him back, he was interfered with by Robert Macgill, who declared that he would not allow Paterson to go, and immediately threatened the bailie with a dagger, at the same time using abusive language to him. Macgill was convicted for this offence, and sentenced by the council to pay a sum of a hundred pounds to the city treasurer, to be banished from the town for seven years, “and to be put in irons and to remain in them during Bailie Inglis’ pleasure, and lastly, to walk from the place where he assaulted the bailie to the Cross, bareheaded and barefooted, and there upon his knees, to deliver the dagger by the point to the bailie, and ask God’s mercy and the bailie’s forgiveness for his great offence.” In the end of September the following year, Andrew Craig was accused of abusing Matthew Trumble, one of the bailies, in presence of the people. The bailie had ordered him to be imprisoned upon just grounds, but he retorted that the bailie had no power to charge him to be imprisoned, and when the officers had got him up the Tolbooth stair, he said to the bailie――“An thou were out of thy office, I shall be up sides with thee,” to the contempt of the King’s authority as represented in the bailie’s person; and when he was in prison he said that he would set it on fire. When his trial came on he pleaded guilty and threw himself on the mercy of the council, and they ordered him to be detained in prison till they resolved what further punishment was necessary. Other persons were tried and punished for contempt of the dean of guild, and of the town clerk, but in 1612 another bailie was threatened by one of the citizens. In 1610, the town council of Glasgow had under consideration the manifold assaults and wrongs which were committed by notorious tusslers, fighters, and night-walkers, who had nothing to pay their fines or to satisfy the parties whom they injured, and who daily committed breaches of the peace and disturbances, because there was no other severe punishment inflicted upon them. Therefore the council enacted that all persons convicted of assaults and disturbances, who had nothing to pay their fine or to satisfy the injured party, should be punished thus:――If a man, he should be imprisoned for eight days, and if a woman, she should be put in the branks upon a Monday and a Friday, for two hours on each occasion, and thereafter such persons should ask God’s mercy and the forgiveness of the parties injured by them.¹

¹ _Records of the Kirk-Session and Presbytery of Aberdeen_,
pages 61, 277, 278, 1846. _Burgh Records of Glasgow_, pages
290, 293, 303, 317, 326, 316.

The number of convictions before the bailies of Aberdeen, for the year 1641, seems to indicate that there was much crime in the city. In March, three of the pickmen at the town’s mills were convicted and fined for exacting a handful out of every sackful of malt ground at the mills more than the lawful mulcture and dues allowed to the lessee and his servants for their work. The council enacted that all workmen convicted of this offence should be treated as receivers of stolen malt, and be scourged and banished or otherwise punished at the discretion of the magistrates. On the 19th of March, Helen Vulgine and Margaret Bellie were convicted and fined for “stricking, scratching, and riving of each other’s faces.” On the 4th of May, Helen Sherar was convicted for “throwing a cup and a wooden stoup at Margaret Burnet, and hitting her to the effusion of blood,” and Margaret also was convicted for striking Helen, and for insisting on taking her child from her. Both were sentenced to be put in the stocks if they failed to pay the fines imposed. On the 15th of June, Marjorie Jack was convicted and fined for assaulting another woman. On July 6th, Elspet Fraser was convicted for assaulting Bessie Forbes on the street, both being married women; and Elspet was fined four merks, and also ordered to offer amends to the injured person in the presence of the magistrates. The same day, Christian Watson, wife of John Tough, was convicted “for assaulting a woman and knocking her down on the street and breaking her leg;” at the same time, Robert Massie was convicted “for assaulting William Gordon, a tailor, on Sunday night, by taking off his bonnet and striking him in the face, and chancelling him to combat, which he refused.” Gordon was sentenced to pay four merks to the dean of guild, and other four to the injured person, and to beg his pardon in the presence of the magistrates. On August 3rd, William Walker, a fisher, was convicted “for injuring James Anderson, his master, by provocking him and calling him a thief’s son, pushing him into the water and hitting him with a stone on the breast.” The same day, James Alexander was accused by Alexander Davie, a lister, for assaulting him in a house in the Gallowgate; he was convicted and fined four merks, and ordered to ask the offended party’s pardon. On the 6th of September, Elspet Smith, a servant of a maltman, was convicted “for assaulting Elspet Craig, a tailor’s wife, by tearing down her hair about her eyes, bruising her face, and then dragging her to a sellar ‘and almost wirred her;’” therefore Smith was sentenced to pay a fine of four merks to the dean of guild, and also to crave pardon from God and the offended party, and further, she was bound not to trouble Craig again, under the penalty of banishment. On the 17th of the same month, Peter Crombie, merchant, was accused of going to John Scot’s house and assaulting his wife, by striking her on the breast and throwing her down; he was fined eight merks. On the 20th of November, James Smith, a weaver, and Alexander Kemp, a wright, were both convicted, for going to the house of Alexander Sangster, a weaver, in the silence of night, and breaking up the door with a forehammer, and then entering the house with drawn swords in their hands; for this they were sentenced to be imprisoned for eight days, and thereafter banished from the city. The same day William Duncan, a servant of Thomas Walker, shoemaker, was convicted for going to the house of James Hall, shoemaker, at night, and drawing a sword and threatening to attack him, and also uttering most abusive expressions towards him, because he would not allow his servant to go out of the shop with him to eat a lamb’s leg as he desired. Duncan was sentenced to imprisonment for eight days, and to find caution for his good behaviour in future. The same day Robert Gordon, a tailor, was convicted for drawing a sword to William Walker, and threatening to strike him, both of them being drunk; Gordon was sentenced to imprisonment till he relieved himself by the payment of his fine. The 11th of December, Sara Fowler was convicted for scolding and defaming Andrew Birnie, merchant, by “calling him a cankered carle, exclaiming on the streets and saying to his wife that she was as gentle a woman as herself.” Sara was sentenced to be imprisoned for eight days, with an intimation that if ever she should be again convicted, she would be put in the stocks.¹ Of course this enumeration is not complete, as it does not include the higher class of crimes which were tried before the sheriff and the circuit court.

¹ _Burgh Records of Aberdeen_, Volume III., pages 255, 256,
259, 261, 264, 265, 267, 269, 271, 272‒274. In 1662, the
town council of Aberdeen agreed to give the town’s scourger
thirteen shillings and fourpence of weekly wages; and also
gave him the two little houses under the Gallowgate Port to
dwell in, while he continued scourger.――_Burgh Records_,
Volume IV., page 203.

Theft was not so prevalent in the burghs as it had been at an earlier period. In Glasgow, on the 23rd of November, 1611, two men were banished for theft. The magistrates, in August, 1613, passed an act for preserving the growing crops from thieves; and it was proclaimed by sound of drum, “that no person be found bringing to this burgh any kind of stuff, as peas, beans, corn, barley, wheat, or rye, upon horseback in burdens, after the hour of four in the afternoon during the harvest; and any one found contravening this, shall be held as a thief and an oppressor of his neighbour, and shall pay a fine of five pounds and be placed in the stocks.” It was stated in 1642 that the city was abused by thieves, who escaped punishment.¹

¹ _Burgh Records of Glasgow_, pages 325, 338, 437.

In preceding chapters the attempts of the Government to provide for the poor and helpless were noticed,¹ and Parliament continued to pass Acts touching the poor, and the repression of beggars and idle vagabonds. These classes were numerous in Scotland, and great difficulty was experienced in dealing with them. By a short Act passed in 1597, the administration of the poor-law was entrusted to the kirk-sessions; and, by an Act of 1600, the sessions were to be assisted by one or two of the presbytery. The common aim of all the early Acts relating to the poor was to prevent begging, as much as to make provision for the aged, the helpless, and the infirm. It was therefore provided that strong beggars and their children――terms which were meant to include all the able-bodied poor――should be employed at common labour. But it seemed this arrangement was not effective, as vagrancy still prevailed. An elaborate act was passed in 1617, entitled “An Act anent the Justices, for keeping of the King’s peace, and their Constables.” The object of this statute appears to have been to establish a more complete local system of police organisation. The various duties of the Justices of the Peace are minutely described. They were directed to hold a session quarterly, and to put the law into full execution against all wilful beggars and vagabonds, against idle men and women, without any trade or certain occupation, lurking in ale-houses, and reputed as vagabonds, and against all those persons commonly called Egyptians. They were also enjoined to punish and to fine those who received or let houses to such persons, and not to permit innkeepers to receive masterless men, rebels, or persons guilty of known crimes. They were empowered to impose a rate on every parish for a weekly portion not exceeding the sum of five shillings Scots, for the support of poor parishioners, who might otherwise starve before the trial came on. They were ordered at their quarter sessions to appoint constables to every parish, two or more according to its extent; but in the royal burghs the constables were to be appointed by the magistrates. Anyone named as a constable, who refused to accept the charge, was to be imprisoned and fined at the discretion of the justices. The duties of the constables were to arrest all vagabonds, sturdy beggars, and Egyptians, and to bring them before the nearest justice of peace. They were further directed to apprehend all idle persons, whom they knew to have no means of livelihood, or who would not betake themselves to any honest labour; and they might also arrest any suspected person, “who sleeps all day and walks all night,” and convey him to the nearest justice of the peace.²

¹ Mackintosh’s _History of Civilisation in Scotland_, Volume
II., pages 238‒39, 266‒68.

² _Acts of the Parliaments of Scotland_, Volume IV.

At the same date, an act directly touching the poor was passed, differing from previous ones, inasmuch as it proposed to educate poor children and train them to labour. It recommended that the children and orphans of poor and indigent parents might be taken into families and brought up and educated, and put to learn honest callings. The children to be thus treated were to be certified by a magistrate or the kirk-session in burghs, and by the kirk-session in county parishes, to be poor and without any means of living. When under the age of fourteen, they were, with the consent of their parents, if they had any, and if above that age, with their own consent, to be delivered to their masters with a testimonial, which was to be a warrant for receiving them, and for their masters partaking of the benefit of the act. To encourage people to receive such poor children, it was enacted, “that they should be bound and restricted to their masters, their heirs, and assignees, in all kinds of service which should be enjoined until they be past the age of thirty, and that they should be subject to their master’s discipline in all sorts of punishments, except torture and death.”¹ As this act was permissive it had little effect; but it was objectionable in principle, as it sanctioned a kind of modified slavery. Still, begging and vagrancy were great social evils in Scotland, and any means which promised to check them would appear to have been justifiable to the legislators of those times.

¹ _Acts of the Parliaments of Scotland_, Volume IV.

In 1649, Parliament took into consideration the great number of poor and distressed persons throughout the kingdom, exposed to misery, because there was no general and regular mode of granting them relief, which was a reproach to their Christian profession. Therefore, it was enacted that each parish and presbytery should be bound to support their own native poor. It was enacted that a list of the poor in every parish should be made up twice a year, on the 1st of December and the 1st of June, at which times parties were requested to intimate to the parish what sum of money or quantity of victuals they were willing to give per month, as a charitable contribution for the support of the poor in every parish. But if the common good and this yearly contribution proved insufficient to support the poor, then the Act authorised a rate to be imposed, to make up the requisite amount. Touching the levying of the rate for the poor, the following occurs in the Act:――“The same shall be imposed on the heritors and others by the elders and deacons of every parish respectively, with as much equality as is possible; wherein they are to have special regard to lay the greater proportion on those masters that deal rigorously with their tenants, and thereby impoverish and put them to beggary, and to deal the more favourably with those masters who endeavour to maintain their tenants, and deal charitably with them: and in distributing of the alms, special regard is to be had to the pious, and a distinction to be made between such and the profane debauchee or drunken sort.” A section of the Act was directed against beggars and other vagabonds and idlers, and power was given to any one “to take and apprehend such idle and sturdy beggars and to employ them, or dispose of them to others to be employed, in working for their meat and clothes only.”¹

¹ _Acts of the Parliaments of Scotland_, Volume VI., pages
389‒391.

In 1661, another Act was passed authorising the establishment of manufacturing companies; and with the view of reaching the children of the idle and vagabond class, it was directed that in each parish one or more persons should be appointed at the expense of the heritors for instructing poor children, vagabonds, and other idlers, in mixing wool, spinning worsted, and knitting stockings. The carrying out of this Act was entrusted to the heritors of each parish, but it does not appear to have been put into operation. The same year an Act was passed containing instructions to Justices of Peace, which was mainly a repetition and extension of the Act of 1617, touching the local organisation of police and the administration of the law in petty offences and crimes. The clause concerning the poor enacted that the Justices should, twice in the year, on the 1st of December and the 1st of June, make up a roll of the poor in every parish, to include only those who were unable to work or incapable of gaining their own living. They were then to appoint two or more overseers in every parish, who should inquire and ascertain the state and the number of the poor, the sick, the lame, and the impotent inhabitants, of poor orphans, and destitute children; to provide dwellings for them, and after ascertaining what the necessary expense would amount to weekly, to call for the collections of the parish, or other sums appointed for the support of the poor, which the overseers were directed to distribute among the poor people according to their needs.¹ The powers conferred by this Act on Justices of Peace seems never to have been exercised by them; but the Act clearly indicated what classes of persons were deemed entitled to parochial relief, as it excluded all who were in any way able to gain their own living. Thus the casual or able-bodied poor were not recognised as legally entitled to any relief, the law treating them as bound to earn their own living.

¹ _Acts of the Parliaments of Scotland_, Volume VII., pages
255‒256, 306‒314; Dunlop’s _Law of Scotland Relating to the
Poor_, page 16.