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Bandits & blasphemers: crime in 17th century Scotland
00:51:17
Allan Kennedy unpacks what looking at crime and punishment can reveal about Scottish values in the 17th century
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- [00:01]
Alan Kennedy
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- [01:31]
Alan Kennedy
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- [02:03]
Emily Briffet
Welcome to the History Extra Podcast. Fascinating historical conversations from the makers of BBC History Magazine. What kind of crimes were most common in Scotland in the 17th century, and what can those crimes reveal about society at the time? Well, in today's episode, we're delving into a world of violence, vengeance, bandits and blasphemers, as historian Alan Kennedy speaks to Emily Briffet about his recent book, Serious crime in late 17th century Scotland. He explores what exactly constituted a crime, who committed them, and how justice was pursued in a society shaped by intense religiosity and complex legal systems. Please note that this conversation contains discussion of infanticide.
- [02:54]
Interviewer
Thank you so much for joining me to talk about crime in early modern Scotland, to start us off, why do you think it's interesting to consider the phenomenon of crime in early modern Scotland in particular?
- [03:07]
Alan Kennedy
Yeah, absolutely. I mean, in terms of why it's interesting to study, there are two answers to that, I think. The first one is, is a sort of intellectual answer, which I'll get to in a moment. But the second one is, in some ways the more honest answer, which is it's frankly just interesting. One of the key qualifications, I think, for being a historian is you have to be nosy. Crime is a really good way of sort of getting at that gossip, frankly. So even if we discount all the intellectual justifications, I think there are fascinating stories that you can unearth by studying crime. And if nothing else, that makes it worth studying, I think. But as I say, there is an intellectual justification as well, which is I think that understanding how people think about crime, understanding what kinds of crimes are committed and how those are responded to, how those are handled, gives you a really good understanding of the. What you might call the ordering assumptions of any given society. It helps you understand what people believe, how they go about enforcing those beliefs, and how they also go about enforcing the sort of boundaries of acceptable behavior. So I think studying crime can sort of give you an insight into the guts, if you like, of any given society. And that goes as much for early modern Scotland as I think for any other society you might care to study.
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Interviewer
Is there anything different at all about either crime in Scotland or crime at this time?
- [04:25]
Alan Kennedy
Crime and deviance are obviously universal phenomena. There's always criminality. So I wouldn't like to claim that the types of crime that Scots are committing in the early modern period is in any way unique or different, because they are people like anybody else. They're doing the same kinds of nefarious things. But of course, Scotland has a unique sort of social and cultural backdrop or set up in this period. There is a distinct Scottish state that has distinct Scottish structures. Scotland has its own religious traditions, for example, its own cultural traditions. And that means that some of the. Of the details of how individual acts are understood, how they are committed and how they are responded to can be quite distinctive.
- [05:05]
Interviewer
I think with that in mind, then, can you give us the historical context? What was Scotland like at this time?
- [05:12]
Alan Kennedy
Yeah, I mean, the period I'm looking at in the book that a lot of this comes from is the late 17th century. And I suppose the two main distinctive features of Scotland or the important contextual factors to bear in mind, is one, Scotland is an independent kingdom at this point, sharing a monarch with England, Ireland and Wales, obviously, ever since James VI went south in 1603 to become James I. But it is a country that still has its own structures, its own legal system, for example, which is very distinct from the English legal system. It's not necessarily terribly stable political structure. Scotland had spent a lot of the 17th century kind of debating with itself how its relationship with England should play out, what kind of systems and structures of kind of a British sort of state or conglomerate should develop. The other really distinctive thing about Scotland in the late 17th century is the fact that Scotland, in common with most other states in Northern Europe, had a Reformation in the middle of the 16th century. But Scotland had a distinctive one which usually dated to 1559, 1560, producing first of all a Calvinist church, which is quite an austere form of Protestantism, much more rigid than the Anglicanism of the Church of England. And it had also produced a Presbyterian structure to the church. So you have a very dense system of church courts which governs the church. What that means is that religion is very, very central to pretty much every aspect of Scottish life, and importantly, Scottish governance and administration in a way that's not absolutely unique, but it's so central to Scottish life that I think it gives Scotland a distinctive character compared certain to somewhere like England, where the ecclesiastical system is much more disparate and much more confused in some ways than it is in Scotland, with its very dominant and monolithic Presbyterian Calvinist church.
- [06:58]
Interviewer
So that gives us some of the backdrop to what we're going to be talking about today. We're talking specifically about crime and deviance. What actually was crime at this time? How did early modern people define it?
- [07:12]
Alan Kennedy
That's a much more complicated question than it sounds, because even today, if you ask somebody what crime is, people will have a sort of intuitive sense that probably is rooted in the law. We think, well, a crime is something that breaks the law, which is a nice kind of useful common sense definition. But of course, then you get into deeper questions about, well, why are certain things against the law? Is there a kind of concept of criminality that is independent of the law? And if not, then you have to understand the codes that people are employing to decide what should be and shouldn't be against the law. So it's difficult today, I think it's even trickier in the early modern period to get a sense of how people understand criminality. I mean, certainly statute is important, the law is important. And you can find early modern authorities, people like Sir George Mackenzie of Rosehaw, who is A lawyer and twice lord advocate. So the chief legal official in the Scottish government in the late 17th century. And quite often he will point to law, to statute, and say, well, this is what lets us know what is criminal and gives us guidance on how that should be responded to. But then in the early modern period, as with today, people are beginning to think, well, what is below that? What is informing our understanding of what should and shouldn't be criminal? And I think that a couple of things that are pointed to as ways that you can get a deeper, more secure understanding of what criminality is. One of those is to do with what might be called harm or wrong, public wrong in particular. So a criminal action in that sense is anything that causes illegitimate harm to somebody else or to a group of people or to the community more generally, whether that's impeding the proper functioning of government or whether it's causing fear or anxiety, whether it's causing disturbance to the wider community. But what's a bit more distinctive about the early modern period is the very close conceptual link, if you want to call it that, between crime and sin. There's often an assumption that the ultimate source of really all codes that govern how people should live and interact with one another is God's law, is what the Bible sets out as legitimate and illegitimate behavior, as sinful and unsinful behavior, and an assumption, therefore, that crime is almost what happens when you take sin and you make it punishable by civil authorities. The problem with that, though, and I did say this, was complex, and the problem with that is that everybody is a sinner. It's sort of inherent in Christian thinking that everybody is flawed. We're all descendants of Adam and Eve, after all, we are all inherently sinful. So it can't be the case that anybody who sins is a criminal, because then everybody would be getting executed and there'd be nobody left. So I think what seems to happen, and this is often implied rather than explicit perhaps, but it does seem to be the case that crime is a special class of sinning that is either particularly egregious, or is the result of an accumulation of smaller sins, which together indicate that the person in question is irredeemably lost, has irredeemably fallen from the godly path. So if we're looking for a definition of crime, as far as early modern people understand it, the best way to get to that, I think, is to see it as almost a proxy measure for an irredeemably diseased soul. If you are in possession of a soul that cannot be saved. That is so far sunk in sin that it is sort of beyond the pale, then that is what allows you to be defined as a criminal and allows your actions to be interpreted as criminal.
- [10:39]
Interviewer
So what was the popular perception of what a criminal was then? And actually did that map out with who actually committed crimes?
- [10:47]
Alan Kennedy
It's very difficult in the early modern period to get a sense of popular understandings of anything, really, because most of our sources come from elites. Nonetheless, if you look at things like ballads, for example, or cheap print or popular culture, you can begin to build up an understanding of what the stereotype of the criminal would have looked like. And very often the type of criminal that emerges from these sources and these discourses is somebody who is in some degree marginalised. So they might be a stranger, they might be from a different cultural background, they might be a vagrant or a poor person, but generally the stereotypical criminal is somebody who is already removed from the mainstream of society, usually in a way that is suspicious or problematic or otherwise worrisome. Beyond that, you can see particular kind of character traits that are often associated with the criminal. I mentioned the importance of sin in understanding what crime is. Therefore, the criminal will be somebody who's godless, who disregards the normal strictures of religiously based morality. You'll often get language to do with barbarity or animalism used to describe these people. So the implication being that these are people who are not quite subhuman, but certainly they are not demonstrating the civilised characteristics you would expect from a law abiding member of the godly Commonwealth, if you like. And then of course, there are other stereotypes as well. Violence, for example. The criminal is somebody who is unable to resist the temptation towards committing violent acts. Again, we're all sinful, we're all potentially violent. The criminal is somebody who surrenders to that and uses violence in a way that is illegitimate or is not regarded as within the normal bounds of civilised behaviour. So I suppose all that boils down to is the stereotype of the criminal is somebody who is different, who is other, but who is also kind of violent, beastly, uncivilised in some fundamental way. And you put those two things together and you get quite a nightmarish picture, which doesn't necessarily accord with the actual profile of people who are prosecuted for crimes, but gives you a sense of what people think a criminal looks like and how they think a criminal differs from the normal run of humanity.
- [12:58]
Interviewer
So what actually was the profile of who actually did become a criminal?
- [13:02]
Alan Kennedy
Yeah, the research I've done For the book is based on what's called the Justiciary Court, the central criminal court of Scotland. So that means that you're seeing the most serious crimes and therefore what I'm about to say maybe wouldn't match with. If you were looking more at petty criminality or more minor criminality, you might get a different profile of person. But in the Justiciary Court there are broad sort of patterns that you can see emerging in terms of the profile of offenders. The most obvious is that they're almost always male. That is very common in early modern criminal jurisdictions. It's pretty common in modern jurisdictions as well. And those women who are being prosecuted, it's for a much smaller range of offences which we might get into later on. So mostly male, generally what we might call the middling sort, what later on would be called the middle class, I suppose. So it's generally kind of small landholders, artists, artisans, craftsmen, middle ranking professionals, lawyers or these kinds of people. Usually they seem to be a little bit younger as well. So there's not an awful lot of very old people and equally there's not a huge number of extremely young people. So the court is not being overwhelmed by, you know, teenagers or anything like that. It's men in their kind of young adulthood or into middle age who seem to be predominating here. It's usually as well, men from certain parts of Scotland. So we see very few Highlanders, for example, coming before the court. I'm looking at not none, but very, very few. And that's probably to do with the way the criminal justice system in Scotland works. A lot of criminal justice in the Highlands is hived off to other jurisdictions. There are three counties of Scotland which have Lothian in their name, East Lothian, West Lothian, mid Lothian, all around Edinburgh. And they are producing the bulk of the people who are tried before this court with a little bit of help from other parts of the country as well. Fife, for example, so just north of Edinburgh across the Firth of Forth is quite well represented. So is Lanarkshire, the area around Glasgow and sort of up the east coast a bit towards Dundee, Aberdeen, that part of the world. Far fewer people from the borders down towards the border with England. Far fewer as well from the west coast north of Glasgow or from the extreme southwest. So we have this particular profile, if you like. And these are the people who are predominating in terms of the types of people who are being prosecuted before the Justiciary Court.
- [15:20]
Interviewer
What led people to commit these sort of dark deeds? Were they largely one off events in people's lives, or were they people who are generally committed to a life of crime?
- [15:32]
Alan Kennedy
In some ways, the motives behind criminality are almost as timeless as criminality itself, in that the motives that emerge are not going to look particularly different from the sorts of motives that emerge in modern criminal jurisdictions. So a lot of people are committing crime in pursuit of wealth or in protection of wealth. So if you're robbing somebody, you're doing that in order to get hold of their cash. Essentially equally, you might be assaulting somebody because they are, I don't know, threatening to take possession of an estate that you want to take possession of might be a land dispute, for example, so you will commit an assault or some other kind of crime to protect your claim to the land. Equally, personal disputes are quite common. So frankly, just having an argument with somebody can lead to an assault or a homicide. Whether that's a kind of a deep rooted argument that may be going back years or perhaps even generations, or whether it's something that's emerged suddenly in the heat of an argument. But. But personal animosity, enmity can be a very important modification. Alcohol is important. Whether we class that as a motive, I don't know, but certainly it's a very common feature, particularly in those interpersonal disputes. Arguments, for example, very often caused by people getting drunk and falling out as a result of that social marginality might be another motivation. A very good example of that is Scotland's Romani community, which is small but does exist. And their itinerant lifestyle and the fact that they are subject to penal laws means that quite often they are forced into committing criminal acts or acts which are then regarded as criminal, either in order to survive or in order to evade the pressure that's been put on them by the authorities. So what this, all this adds up to, I think, is that most of the people who are being hauled before the Justiciary court are committing crime because in some way they feel themselves illegitimately disadvantaged, either in their pockets or in their person. If we look at all these particular motives that are driving people, we can get that set. That all boils down to a feeling that I have been wronged unfairly and I have to respond in order to right that wrong.
- [17:34]
Interviewer
Would it be fair to say it was a deeply personal affair most of the time?
- [17:39]
Alan Kennedy
Certainly. The way the crimes are reported in the Justiciary Court's records, it does often emphasise a personal sense of loss, or if a group is involved, personal but shared sense of loss or being wronged. And that brings us Back perhaps to something else you mentioned a moment ago, which is the division of, between sort of one off criminality and professional criminality. Because the majority of these cases are people who seem to have been broadly law abiding before they commit their offence. There are, however, a small number of cases in the justiciary court record where we're clearly looking at career criminals, sometimes even professional criminals, people who have, over years, built up a kind of quite robust infrastructure to support their criminality. So one of my favourite examples is a man called Archibald Beath, who was actually a minister on the island of arran. But in 1671 1, he is tried by the Judiciary Court because it becomes clear that he had developed a sideline of essentially robbing ships that had landed on the island. He'll attack them with a small number of associates armed with guns and rob them of their cargo. And this becomes clear in the early 1670s when his final victims managed to get away. So he's an example of somebody who has, he's got a job, but he has this professionalised sideline in criminal activity. There are other groups, bandits, for example. There are a number of bandits prosecuted who are active in the Highlands, who are very clearly professionals. They will have large groups of associates, gangs essentially. They will have a well developed network of informants, or what's called resetters. So resetters just means people who will provide lodging or board or that kind of thing. They will have access to extensive weaponry, for example. A lot of them will be engaged in cattle theft. They will therefore have networks to dispose of the animals that they have stolen. And you get similar things in some cases in Lowland Scotland as well. There's a gang that is Prosecuted in the 1690s led by two men, Robert Waugh and James Campbell, are their names. 1693, 4. These people are prosecuted who, it's very clear, are professional housebreakers. They have been for years. They've got infrastructure in place to target particularly lucrative looking houses, particularly houses belonging to the gentry. And they will break into them under cover of night and steal whatever cash or plate or other goodies they can get their hands on. These are people who are making their living, or at least a substantial portion of their living, through criminal activity. The important point though is that that's a very small minority. Most of the criminals we're seeing prosecuted in the Central Criminal Court in Scotland at this time are otherwise law abiding individuals who for some reason have become, either temporarily or for a longer period of time, kind of unmoored from the normal structures of Society and are therefore committing crime for a much more personal reason.
- [20:23]
Interviewer
It seems you've mentioned there an array of different crimes. What were the major crimes of the era and did those differ between those who are maybe committing them as one offs and those who were committed to that life of crime?
- [20:38]
Alan Kennedy
Yeah, again, this depends on what jurisdiction you're looking at. What I'm looking at, the Central Criminal Court has particular patterns, which I'll come to in a moment. But if you're thinking about Scotland generally, probably the most common, whether we call it a crime or not is actually up for debate. But the most common offence that is attracting some kind of public censure is what might be called ecclesiastical indiscipline. And this is through the church, through its kirk sessions, which are the little kind of councils which govern individual parishes in Scotland, led by the Minister. They do a lot of work enforcing discipline. So people who are not going to church on the Sabbath, for example, or working on the Sabbath, or who are getting drunk, or in particular who are committing sexual offences, so fornication or adultery, these things. And because there's a kirk session in every parish, so 900 of them, it means that probably the vast bulk of prosecutionary activity, if we can call it that, broadly defined, is for that kind of very low level, essentially moral and sexual offence. However, in my court, in the Justiciary court, the one I'm looking at is a very different story, because here we are seeing a gradual specialization across the late 17th century in violent interpersonal offending. So we might see some other offences, particularly earlier in the period, things like witchcraft makes an appearance, usury sometimes is prosecuted, various forms of theft too. But increasingly what we're seeing is the court prosecuting homicide, so various forms of murder or slaughter, which is the terminology sometimes used in Scotland, and robbery as well. Now, robbery is in Scotland is quite tightly defined as theft exacerbated by violence. And by about 1700 or so, those two offences, homicide and robbery, are absolutely dominating the court's activity. So it's worth saying, though, that there are also, if we're talking about major crimes, there are also individual cases which become pretty sensational and which generate huge amounts of comment. And some of these fall into those categories of homicides and robberies, but others don't. They are pretty unique offences. So one of the most famous, well, the two most famous offences committed in the late 17th century that are prosecuted in the Judiciary Court one is the prosecution of Thomas Weir in 1670. He's about 70 odd when he's prosecuted most of his life had been regarded as an upstanding member of the Protestant community in Edinburgh, known as a kind of fierce Calvinist Presbyterian. But in 1670 it comes to light that he had been conducting an incestuous affair with his sister for about 50 years, going back to about the 1620s. And when I say his sister, I. His full sister. Incest in Scotland, often when it's prosecuted, will involve relationships between people whose relationship is based on marriage. So your sister in law or something like that. Not in Thomas Weir's case, it is his full sister, a woman called Jean, who he's been conducting an affair with. It also comes to light that he's been a long term committer of bestiality as well. So he's been sexually abusing animals as well for a long period of time. And there are some suggestions he might also have been dabbling in witchcraft too. So he and his sister are both tried and executed in 1670. So that is an extremely unusual case. In fact, it's a unique case. We don't see this kind of density of sexual offending very often and we certainly don't see this particular combination of incest and bestiality in any other case. So that's one sort of major crime, if you like, in this period that attracts very significant comment. Very similar in terms of being unique is the prosecution of a man called Thomas Aitkenhead at the end of 1696. He's in executed in 1697. Thomas Aikenhead was a student, he was about 20 or so when he was executed. His crime is blasphemy, basically. He'd been overheard on multiple occasions saying deeply heretical things. He'd called Jesus a conjurer of cheap magic tricks, for example. He'd said that the Trinity wasn't real. He claimed that the Old Testament was a work of fiction, these kinds of utterances. And for that he is executed at the start of 1696. He's the only person, as far as I'm aware, ever executed in Scotland for blasphemy. There are others executed for heresy around the time of the Reformation, obviously, but blasphemy, this is the only case. It comes about because Scotland in the middle of the 1690s happens to be in a bit of a moral panic about the rise of atheism. There's some fear about that, and Aitkenhead is kind of caught up in that paranoia. But because his punishment, execution seems, even to early modern eyes, seems wildly out of proportion to his offence, which was essentially just saying, I mean he hadn't published any blasphemous literature, he hadn't disseminated blasphemous literature, he hadn't gone about trying to convert people to atheism or anything. So because of that disjointure between the offence and the punishment, that's another case that becomes very notorious in its own time. But more generally, it's more if you like mundane offences of homicide and robbery which are increasingly dominating the day to day business of the Justiciary Court, when it's not being distracted by these sensational individual offences.
- [25:51]
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- [27:38]
Interviewer
Crimes like witchcraft are so often associated with women, but they're not solely limited to women. As we spoke, in the case of Thomas Weir, are there any other crimes that can reveal more about women's criminality in particular? I know you mentioned it earlier as well.
- [27:56]
Alan Kennedy
Yes, absolutely. One of the striking things about the Justiciary court records, if you're looking at it in terms of gender, is there's a very strong split between what women are being prosecuted for and what men are being prosecuted for. Now, there's a little bit of overlap, of course, the vast majority, vast bulk of female offenders or accused individuals, panels, as they're called in Scots law. It's either witchcraft they're being accused of now. The period I'm Looking at from 1660 to the early 18th century is the tail end of the Scottish witch hunt. So there are not as many women being prosecuted for that offence as there would have been slightly earlier in the century. Not none. There's a little coven that's prosecuted from Curis, which is on the south coast of Fife in the middle of the 1670s, for example, across group of four women or so who are prosecuted. But nonetheless, witchcraft is one of the major offences for which women are being prosecuted the other. And this is much more important, as in terms of numbers, when we're thinking about women's prosecution is a very particular form of homicide, and that's infanticide. And this is not just a Scottish thing throughout early modern Europe. This is particularly noteworthy in our period in the late 17th century because of a law that's passed by the Scottish Parliament in 1690, which tightens up the prosecution for infanticide, which basically makes it so that if it can be proved that a woman concealed a pregnancy and the child later died, then it will be assumed in law that she murdered the child, even if there's no evidence, hard evidence, that she actually did so. In other words, it is possible for you to have had a stillborn child, but if you concealed the pregnancy, the law will assume, on paper anyway, will assume that you murdered the child. What that means, or the practical effect of that, is that in the 1690s in particular, we see a kind of upsurge in the number of women who are being prosecuted for in infanticide. And it's very often particular kinds of women. There are a few older women who are being prosecuted, having kind of assisted in the murder of a child, elderly midwives or elderly relatives, that kind of thing. But most of the time, the women who actually bore the children, obviously are younger women. They're usually from a lower social status. Very often they are farm servants or domestic servants. And therefore, very often the father of the child is their master or a family member of the master. So we're getting into the realms of sexual assault here. It's implied in a lot of these cases, and sometimes more than implied, that the father of the child attacked the woman, committed sexual assault on the woman, who is then left with a child that is going to be illegitimate. And therefore there's a very significant social stigma that this woman is dealing with. And this is often said explicitly in women's confessions to this offence. They concealed the pregnancy, and if they confessed to murdering the child, they murdered the child because they couldn't bear the shame and the very significant practical ramifications and reputational ramifications that come with having an illegitimate child. So infanticide, then, is a very harrowing offence to deal with. A lot of the narratives that women are giving us are heavy on kind of isolation, on things like sexual assault, on various other significant hardships that these women are enduring. And, of course, the man who assaulted her very often faces absolutely no ramifications because he doesn't bear the child. So infanticide, then, very heavily gendered offence, but in that heavy gendering, tells us some very important things about the particular stresses and pressures that women are forced to deal with. Not just the women who are caught up in the courts, but just women generally. We're seeing those constraints, those social pressures, reflected in prosecutions for infantasy aid.
- [31:35]
Interviewer
How were both victims of crime and society more widely affected and what were their responses like?
- [31:44]
Alan Kennedy
It's interesting, actually, if you read through the court records, it's often clear that obviously being the victim of crime is very traumatic, and you can see a lot of discussion of particular harms that have been suffered. So if somebody's been violently assaulted, there will often be quite lurid narratives about their being confined to their bed, they've lost the use of a limb or something, they're not able to work anymore. Similarly, when an individual has been murdered, you will get discussion of, you know, they've left a wife and children behind who now have nobody to support them. So you get quite a lot of discussion of this individual harm. The word that's often used in these cases in Scots is scathe, which just means this individual harm. There's also quite a lot of discussion of wider harms that are experienced by society more generally. That could be, for example, generating fear. If people are feeling afraid, that is undermining the king justice. It's undermining the fabric of society. But you also get in a lot of these cases is discussion of the harms that the committers of crime have experienced as well. Most obvious is regret. I mentioned a moment ago that alcohol often plays a part in these offences, which means that when the person sobers up, they will quite often feel deeply remorseful of their offences. So there are cases where somebody who has assaulted another person when they've been intoxicated, once they've sobered up, will go to the person's house, will beg forgiveness, will pay for a surgeon to visit them, these kinds of things. They will call for a minister, for example, in order to discuss what they've done and to try and seek a way to deal with the remorse. So you get the harm suffered by the committer of crime in that sense of kind of emotional distress that they have caused themselves almost. You will also get slightly differently. Some individuals will not talk about crime as causing them harm, but as kind of underlining their own wickedness and confirming to them that they are an irritable, redeemably lost soul. So a really good example of that is a man called Godfrey MacCulloch, who is prosecuted at the end of the 1690s for murder, is convicted and is executed, and he releases a last speech. Very common thing for some of these individuals to do, the kind of last statement from the gallows. But his is really interesting because he says in his speech, I didn't mean to kill this man. It wasn't murder. It was a culpable homicide in a Scot sense, or manslaughter, as it would be known in other jurisdictions, which would normally not necessarily attract execution. But despite that, McCulloch says, I still deserve to be executed, even though I didn't commit willful murder. And the reason I deserve to be executed is because this whole episode has demonstrated how wicked I am. God allowed me or led me to kill my victim in order to prove, in order to show how lost a soul I am, and therefore I deserve to be executed, not because the crime itself necessarily carries a capital punishment, but because it shows that I'm just a ridiculous redeemable and I should therefore be got rid of. So that's a slightly different example of the way that criminals themselves will think about the effect that their actions have had on them and will often come to quite sort of brutal conclusions about their own inner wickedness, if you like, quite apart from feelings of remorse or guilt or other kinds of emotional responses that they might have to their offense.
- [35:07]
Interviewer
As we've been talking, there's been this looming thing that we haven't talked about, and that is the Scottish criminal justice system at this time. It was quite distinctive. Could you explain to us how it actually worked?
- [35:23]
Alan Kennedy
I'll try. It's extremely complicated. Theoretically, the structure of public justice, the King's justice, is quite straightforward. You have sheriffdoms, each of them has a sheriff court sitting in the head borough, the main town, and, and that's responsible for prosecuting most criminal offences. You also have justice of the peace courts. Now, justices of the peace in Scotland are less powerful and less important than English justices of the peace, but they still do prosecute some very low level offences. Things today we would call breach of the peace. And then we have the justiciary court, which is the central criminal court, sitting in Edinburgh, theoretically supposed to go on circuit in the localities twice a year. Often doesn't bother doing this. That and the justiciary court, what distinguishes it is exclusive right to try four offences known as the four pleas of the Crown. And they are homicide, robbery, willful fire raising, which is arson, and rape is the other one. So that sounds quite simple. We have a nice hierarchy of basically sheriff courts at the bottom and then the central criminal court at the top. What makes it so complicated is two things. Well, actually three things. One is that Scotland has lots of boroughs, some which have a charter making them a royal, but borough, and alongside that comes the right to hold a borough court. And a borough court has the equivalent jurisdiction to a sheriff court in the town. So it means that as well as these 30 sheriffdoms, you essentially have 100 boroughs which are doing kind of the same prosecutory activity. So that's one strand of complication. The other is the church. The Presbyterian Church structure has this hierarchy of what's called church courts, which prosecute sort of moral and religious offences. So that's the second strand of complication, the third, and this is what I think is certainly by the 18th century, is becoming remarked upon as peculiarly distinctive to Scotland is what's called heritable jurisdictions. And that basically means that lots of landowners as part of their charter, have a right to hold a criminal court, which in some cases can try even the four pleas of the Crown. In practice, a lot of these courts are really just being used as estate management tools, but on paper they are able to prosecute the offences. The problem is, or what makes it so complicated, is more than half of Scotland is covered by somebody who has a heritable jurisdiction by right of charter. So an enormous amount of the country has this private legal jurisdiction alongside the public system and alongside the ecclesiastical system. And just to make it worse, by the way, there are certain specialist jurisdictions as well. The Admiralty Court, for example, which has jurisdiction over piracy, I think it's the Court of the Exchequer has jurisdiction over crimes committed within the vicinity of a sitting parlor. Parliament, for example. So, in other words, we have what seems to be a fairly clear system of public courts, but there are so many other types of courts which crowd in on that. And it means that by the time we're talking about the late 17th century, there is a very dense but very difficult to navigate system of criminal justice in Scotland, which, as I say, after the Union of 1707, English commentators often will look at this and think, this is madness, and they will contrast it with, with what they see as a much more rational English system. Now, whether that's fair or not is an entirely different matter, but it's certainly true that the Scottish system is complicated and is quite distinctive. By the later 17th century, you can.
- [38:50]
Interviewer
Only imagine how complex it must have been for those seeking justice or those accused, what was the aim of prosecution? What were they trying to get at? And also, what can this tell us about this sort of imposition of power and authority in people's lives?
- [39:09]
Alan Kennedy
I mean, I think the first thing to say is that people in the early modern period, just as today, recognise that prosecution is not about catching and punishing every single criminal. That's impossible. Most people who commit crimes, particularly less serious crimes, are going to get away with it, frankly. So prosecution is not just about punishing people for having done something wrong. I think instead, contemporary commentators, whether this is lawyers like George Mackenzie of Rose hall, who I mentioned before the Lord Advocate under Charles II and James vii. And second or other. Right, talking about this period, they'll usually point to two things. First of all is deterrence. So you can concede that you're not going to prosecute and punish everybody, but if you can prosecute and punish enough people, then that's going to force everybody else to stay in line. Because you think, well, there's a chance that if I, you know, go and beat up my next door neighbor, I'll be caught and I'll be executed. The other is to do with, if you like, sending signals, it's about saying to people that we actually, as the government, or as just the community of Scotland, if you want to think of it even more broadly, we regard this kind of behaviour as unacceptable. So what you're doing is essentially seeing criminal prosecution as a giant public relations exercise. It's a way of staking out the boundaries of acceptable behavior. And hoping that people will respond to that, will inculcate those values and therefore will know what they should and shouldn't be doing. And that links to the other thing you asked, which is to do with power. The Scottish government is becoming more interventionist across the early modern period. It's becoming less tolerant of cultural and behavioural differences across the country. And one tool for smoothing that out and therefore inflating the power of government, is criminal prosecution. It's why, for example, you see the government, particularly under Charles ii, spending a lot of time creating new justiciary courts in the Highlands. Highlands is regarded as a lawless, peripheral part of the kingdom. Therefore, if you increase the number of courts and the number of judges there, you can stamp your authority on the area, as well as doing all those useful things about mapping out behaviour and deterring offending. And the same justification, perhaps, can be seen with the Church. For example, one of the reasons that the Church spends so much time prosecuting people for fornication or adultery or Sabbath breaking or these kind of things is not necessarily because they just want to punish these people. They do. But that's not the only reason. The other reason is that you are staking out the boundaries of godly people behaviour. This is how we expect people to behave. So in that sense, you see either the government or perhaps dominant sectional groups, the nobility or whatever, or if you want to be more generous, just the community in general, what they are potentially doing is using the court system, using prosecution as a way of shaping public behavior and molding Scottish society into an image that they regard as proper and which will further whatever agenda they happen to have. Have.
- [42:01]
Interviewer
What were the punishments for criminal actions? What were their consequences?
- [42:07]
Alan Kennedy
There's two ways of answering that question. One is to look at the law, because if you look at what we might call the criminal code, I mean, that's a slightly kind of highfalutin term for it. But if you look at the body of legislation, by far the most common punishment for nearly every offence is execution. That's the sort of standard way of responding to even what looks to us pretty minor crimes. So something like bigamy, for example, or adultery. There are punishments that the Scottish criminal justice system also employs particularly lower down the hierarchy. So if you're being prosecuted for crimes by sheriff courts or borough courts, for example, you might suffer judicial mutilation. So getting your ear cut off or your tongue cut off or having your ear nailed to a wall or something like that. You might also suffer punishments of humiliation. The most famous example of that is the jougues, which is basically an iron bar attached around your throat and then attached to the wall of the toll booth or the church or something. You stand there for a while, while deeply uncomfortable and painful, but also publicly humiliating. There's a kind of rich culture of punishment, if you like, that doesn't just incorporate execution. However, for the Justiciary court, we are looking at the Central Criminal Court. So it's the most serious offences and therefore here, execution is the most common way of responding to a crime. Obviously, when you've secured a conviction, that usually means, in a Scottish context, hanging. That's by far the most common method of execution. But there are some other ones as well. There's a couple of examples of drowning. The favourite place to do that is in the Norloch, which is a body of water in Edinburgh where Princes Street Gardens now stands, but in the early modern period it was an artificial loch. There are a couple of examples of beheading as well, but generally speaking, it's hanging. However, there are a couple of caveats. One is that you can, if the crime is particularly egregious, you can embellish the hanging in some ways. So a couple of cases. The most obvious one is a bandit called Patrick Roy MacGregor, who's executed at the end of the 1660s. He's hanged, but before he's hanged, he gets his right hand cut off as a sort of additional punishment, if you like, and that hand is then put on public display around Edinburgh. You get other body parts sometimes cut off as well, sometimes including a head, and they'll be stuck on gates as a kind of deterrent or a sort of advertisement. You don't do this kind of thing because this is what happens to you. The other way of embellishing execution is by the phrase that's used is hanging the body in chains after execution. That seems to mean putting the corpse in some kind of open cage and you'll then hang it in a public place, often for months, if not years, so it progressively rots in public. Again, it's about deterrence, it's about advertising the might of the criminal justice system and making sure nobody does this kind of thing again. So execution, with or without these embellishments, is by far the most common form of punishment. It's not the only one, though, so you will see occasional examples of fining. For example, people will be forced either to pay just a fine to the government or to provide compensation to their victim. Particularly common in cases of assault, which are less serious. There are one or Two examples of corporal punishment. So some particularly women will be sentenced to what's called scourging, which is a kind of ritual form of whipping, usually through the streets of Edinburgh. That's the favourite. You know, they're forced to walk through the streets with somebody going behind them with a whip. But the only other relatively common form of punishment, aside from execution, is banishment, which has become increasingly important to the Scottish criminal justice system in our period earlier on, you know, in the 1660s or 1670s. That's just literally telling people to leave the country and if you come back, it's under pain of execution. But from about the 1680s onwards, we see banishment becoming linked to an order for transportation. So not just leave the kingdom, but we are sending you to a specific place that is usually the American copy colonies. That is particularly common for homicides or serious assaults, when there is some degree of mitigation over the guilt. So if the perpetrator was especially young, if they were sort of temporarily insane at the time of the crime, that might happen equally. And this is very common in cases of infanticide, a person might be sentenced to execution and then they'll appeal to the government and say, please show me clemency. And the government usually does, and the form of clemency they show is to commute the sentence to transportation. So it's a very distinctive culture of punishment, if you like. But I think the key thing that emerges from it for me is that it's far less straightforward and far less brutal than the letter of the law might imply. You are seeing people who are being sentenced to less than capital punishments, despite the fact that in law they should clearly have been executed. There's an awareness on the part of the courts that there are gray areas here, and the approach to sentencing very clearly, I think, reflects that awareness and reflects a willingness to be lenient when it's regarded as appropriate to do so.
- [47:05]
Interviewer
By examining these crimes and their punishments, their prosecution, how far do you think it's possible to actually creep inside the minds of these early modern Scottish people and actually uncover their ideas, beliefs, their convictions, their lives themselves?
- [47:24]
Alan Kennedy
This is something that historians have spent a lot of time thinking about in the last 30, 40 years or so? A lot of research into criminality more generally has been to do with what's sometimes called mentalities, trying to uncover the way people think about the world around them. I mean, obviously, there are some restrictions. The record that we're dealing with is produced by the government, it's produced by elite people, so even sort of confessions which are omitted by criminals themselves or witnesses, statements. Those are all being refracted through the government and through the judicial hierarchy. So there's a barrier there. Nonetheless, I think what we can do if we look at criminality is we can use it to reconstruct how early modern people think about the, I suppose, kind of the ordering assumptions of their world. So you can get a sense of what they regard as proper behavior, what they regard as improper and what the difference is. So is it to do with religion? Is it to do with other forms of morality? Is it all about protecting power or economic primacy or whatever? But whatever it is, we can see fossilised in criminal prosecution, those kind of assumptions about what matters. You can also see reflected in this sometimes the core values of society. So, for example, one of the offences which is sometimes prosecuted in early modern Scotland, which looks a bit weird to us, is adultery. Adultery in some forms actually is a capital offence in Scotland. You can be executed. Doesn't happen very often, but it can theoretically happen for particularly flagrant forms of adultery. Now, the reason reason for that, of course, or what considering that allows us to do, is to reconstruct the importance of marriage and the family to early modern society. This is the way society is constructed. So any offense like adultery which challenges that core value is going to look very serious to early modern society in a way that it wouldn't do to us. And you can see that as well with other values, things like hierarchy, for example, offences where somebody has in some way attacked their master, for example, whether it's an employer or a landlord, those are regarded as particularly egregious examples of those offenses, precisely because hierarchy is a vital, ordering structure. Assaulting somebody is bad. Assaulting your social superior is even worse, because it's like a double challenge to assumptions about how society works and should work. You can also see the late 17th century. This is particularly obvious. You can see evolving attitudes to things like the use of violence. It becomes very clear if you read these court records that certainly the government and probably increasingly wider sections of society, don't think violence is a legitimate tool of social interaction anymore in a way that they would have done 100 years earlier. Violence, often, you know, ritualized or within constraints, was a legitimate mechanism for solving disputes, for furthering your cause, whatever that might be. By the late 17th century, that's not the case anymore. Violence has increasingly come, coming to be seen as illegitimate, and the court records allow us to reconstruct that. So, in other words, what you can get from the court records is insights into how people assume the world around them works or should work, but also indications of the kind of cultural assumptions which underpin people's lives, whether that's to do with religion or violence or whatever else it might be. So yes, court records, I think, are a really good way, within the limits I've already mentioned of kind of creeping inside people's mind and getting an understanding of how they view the world around them and how they want the world around them to function.
- [50:57]
Emily Briffet
That was Alan Kennedy, lecturer in Scottish History at the University of Dundee, speaking to Emily Briffet. His book Serious crime in late 17th century Scotland is out now.
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