CHAPTER XXX.

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.

An Act touching beggars and vagabonds was passed in 1663, which, after

referring to the failure of the many former acts on this matter,

proceeds to declare it lawful “for all persons or companies, who have

or may erect manufactories, to seize any vagabonds who shall be found

begging, or masterless and out of service, and have nothing to maintain

themselves; and then to employ them in their works as they shall think

fit; this being done with the advice of the magistrates of the place

where these persons are seized; and commands that the parishes where

such vagabonds and idle persons were born, or in case the place of

their nativity be unknown, then the parishes where they have any

residence, haunt, or frequent resort, for the three years preceding

their apprehension, which, being thus relieved of the burden of

them, to make payment to the persons or companies who may happen to

employ them――the sum of twopence per day for the first year, and one

penny for the next three years; the one-half of this to be paid by

the proprietors of the several parishes, and the other half by the

possessors and the inhabitants dwelling upon the land of each heritor.”

The Act also directed, that public intimation of a meeting should be

made at the parish church, to frame a rate-roll for the support of the

poor in their parish, who should be employed as above stated. “The poor

thus employed shall continue in the service of their employers, under

their direction and correction, not only during the time which the

parishes pay for them, but also for seven years thereafter, receiving

only their meat and clothing.”¹

¹ _Acts of the Parliaments of Scotland_, Volume VII., pages

485‒486.

At the first glance, this Act appears to offer great facilities to

commercial companies and corporations, as they were empowered to seize,

and compel to work for their benefit, all beggars, vagabonds, and

persons out of employment; and instead of paying for their labour,

being themselves paid for employing such persons. This was carrying the

encouragement of manufactures far enough; and as such companies were

also exempted from all import and export duties, and protected from

home competitors by a previous Act, and to have labour for nothing,

what more could they desire? But work performed under these conditions

could hardly have been successful, and it does not appear that any

attempt was ever made to put the Act into operation.

In September, 1672, it was stated in Parliament that in bypast

times many good laws had been passed for the suppression of beggars,

vagabonds, and other idle persons, but still a numerous brood of such

persons remained, and were daily increasing, living without law or

rule, civil or sacred, and a great burden and a reproach to the kingdom.

Therefore it was enacted that the magistrates of all the burghs in the

kingdom should provide correction-houses for beggars, vagabonds, and

other idle persons, before the month of June, 1673, under the penalty

of five hundred merks quarterly until such houses were provided: and

the sums raised from these penalties were to be applied for building

or purchasing correction-houses. They were directed to be built with

an open close, that the health of the poor people might not be hurt

by keeping them always within doors. At the same time, it was again

declared to be lawful for coal-masters, salt-masters, and manufacturers,

“to seize upon any vagabonds and beggars, wherever they can find them,

and put them to work in their coal-haughs and manufactories.” The

execution of the Act was committed to the Privy Council, with full

powers to enforce it. But in spite of all this, no correction-houses

were erected in conformity with the provisions of the Act, which

remained inoperative.¹

¹ _Acts of the Parliaments of Scotland_, Volume VIII.,

pages 89‒91. “There does not exist in Scotland a single

correction-house applied to the purposes set forth in the

act.”――_Dunlop on the Poor-Law of Scotland_, page 20.

In the three years from the beginning of 1692 to 1694, the Privy

Council emitted several proclamations concerning the poor; and

Parliament, in 1695, revived and ratified all the former acts for

maintaining paupers, and for the repression and punishment of beggars,

and ordered them to be put into vigorous execution. Owing to a

succession of bad harvests during the later years of the century,

the distress among the lower classes in Scotland was very great,

the sufferings of the poor, and mendicancy were increased, and the

Government had to endeavour to meet and to mitigate both. In 1698,

Parliament passed another Act touching the poor, ratifying former Acts

for repressing beggars and for maintaining paupers; reciting portions

of the Act of 1617 referring to the employment and upbringing of

poor children; quoting the Act of 1663 which empowered the masters of

manufactories to seize idle vagabonds and set them to work; and also

referring to the Act of 1672, and to the proclamations of the Council,

ordering the erection of correction-houses――all of which were commanded

to be put into vigorous execution in every point. The Privy Council

was empowered to appoint supervisors and inspectors of the poor, to

see that the laws were put into effect: and moreover, it was authorised

to frame and issue regulations (as far as consistent with the standing

laws) to ensure employment and maintenance of the poor, and freeing

the kingdom of vagabonds and idle beggars.¹ For a long time the various

burghs had their own regulations for the relief of the poor. In the

beginning of the year 1639 the magistrates of Glasgow adopted a rule

to the effect “that the sum of six hundred pounds be advanced, and for

the better collection of it, they have ordered, that there should be a

fifth part added to the rate of each parish, and the bailies to collect

it with the stint-money.” About the end of April the same year, the

magistrates “concluded that the poor be kept in their houses for a

quarter to come, and ordered a contribution to be gathered to that

effect, and intimation made through the town by sound of drum, to come

on Wednesday next at the ringing of the bell, with certification to be

poinded for the double of the sum if they failed.”²

¹ _Acts of the Parliaments of Scotland_, Volume IX., page 463;

Volume X., pages 177‒178.

² _Burgh Records of Glasgow_, page 400.

The preceding is but a brief account of what was attempted to be done

to provide for the poor, and to relieve the nation of the mass of

vagabondism and vagrancy. Throughout the history of the nation the

difficulty of treating the matter effectively resulted from the fact

that the country was oppressed with a great number of able-bodied

idlers and wandering characters, well able, but determined not to

work; being from circumstances and by evil habits engendered through

centuries of idleness, socially and morally insensible of the duty of

supporting themselves by honest energy and industry. Accordingly the

attempt to introduce the labour test was distinctly and repeatedly made,

and it has continued as a special feature of the Scotch Poor-Law system

down to the present century.

The idle and vagrant population in the later years of the seventeenth

century was enormous. Besides the general causes of the prevalence of

vagrancy in Scotland, which had engaged the attention of Government

from an early period, there were, in the sixteenth and seventeenth

centuries, particular causes which tended greatly to increase

the number of such persons. For a time, at least, the religious

revolution of the sixteenth century augmented the pauper classes; and

in Scotland this was followed by the Civil War in the first half of

the seventeenth century, which again was succeeded by twenty-seven

years of misgovernment and persecution. This latter period especially

was attended with so much confiscation of property, so many ruinous

fines, so many apprehensions, imprisonments, and banishments, so much

interruption of regular industry by military occupation and execution,

and so much waste of the means and goods of the most industrious

classes of the people――all which could not fail to increase their

poverty. Thus it was that, toward the close of the seventeenth century,

in spite of all the legislative enactments, in spite of the influences

of religion, in spite of all the restraints and the inducements to

honest exertion, arising from a slowly advancing civilisation, Scotland

still presented the gloomy spectacle of an enormous mass of vagrancy.

Fletcher estimated the idle and vagabond population of Scotland at

200,000, living without religious, moral, or domestic restraint,

revelling in iniquity, and committing crime with impunity.¹ Though his

statement is probably exaggerated, we know from other sources that the

amount of vagrancy and wretchedness was very great in proportion to the

population, and that several generations later, there was still a large

body of poor in Scotland.

¹ Fletcher’s _Second Discourse on Public Affairs_, published in

1698.

The police arrangements of the kingdom were extremely imperfect; while

in many places the local hereditary powers continued intact with all

their capriciousness and irregularity. Even in the chief towns there

was no regularly organised police force, their place being supplied

by the town-sergeants, and in times of special danger or the alarm of

impending war, a night-watch was appointed.

From the earliest times the Scots had a vivid and deep sense of the

supernatural, and the ideas and dogmas associated with the Reformation

had taken a firm hold on their minds. Their leading ideas of religion,

indeed, had been modified, and a new external form of polity adopted by

the people; yet many of the older notions and customs, interwoven with

their former beliefs and habits, still survived here and there in more

or less vigour. Their ideas of supernatural powers, of evil spirits,

and of witchcraft, were little abated: while they were animated with

an earnestness of conviction and a fervency of feeling, which stir the

deepest cores of the human heart. In an age when beliefs are firmly

held, and ideas and doctrines vividly realised in the mind, when

belief in a definite creed is deemed essential to secure salvation

and everlasting happiness, when people are fully satisfied and quite

certain that they are right, there is an inevitable tendency to

intolerance. This was the condition of the nation in the seventeenth

century; to expect tolerant views of religion was vain.¹

¹ A good example of the religious ideas and feelings of the

time may be seen in the _Diary of Alexander Brodie_, printed

for the Spalding Club, 1863; it embraces the period from 1652

to 1685. Brodie was a Lord of Session, and had held a seat in

parliament.

From the Reformation onwards, the laws against Roman Catholics

were severe, while they were more or less persecuted throughout

the seventeenth century, save during the short reign of James VII.

About the middle of the century, the Quakers, against whom the Scots

manifested much aversion, began to attract attention. During the

government of Cromwell these dissenters began to multiply; they having

been allowed at that time more freedom than was usual in Scotland.

In 1656, they became bold, and held meetings on the Castle-hill

of Edinburgh, which were well attended; about the same time their

doctrines began to spread among the people. On the 30th of April,

1657, the presbytery of Lanark excommunicated eight persons for their

adherence to Quakerism.

In 1665, three Quakers were imprisoned in Edinburgh. In the end of

the year 1663, the town council of Aberdeen ordered that George Keith,

William Neper, and William Stuart, three trafficking Quakers, should

be conveyed out of the town by the officers, and warned that, if they

returned, they would be given in charge to the hangman, and punished

as the magistrates thought fit. The inhabitants of the town were

forbidden to receive such persons into their houses or families, under

the following penalties for each offence: If a burgess of guild, sixty

pounds; if a tradesman, thirty pounds; and if one of the lower classes,

ten pounds; and for the offence of attending any of their meetings, a

penalty of five hundred merks was to be exacted.¹

¹ _Register of the Privy Council_; _Burgh Records of Aberdeen_,

Volume IV., page 207.

The magistrates of Aberdeen, in 1670, stated, that in spite of the Acts

of Parliament, of the Privy Council, and the former acts of the town

council, it was found that the Roman Catholics and the Quakers often

held meetings in the city. They had expected that at least some respect

would have been shown to the laws by the citizens; and to manifest

their own earnestness in attempting to reclaim the obstinate and

disobedient, they ratified the former acts against such persons, and

ordered them to be proclaimed. But only a month after, the authorities

again met to consider the fact that, notwithstanding all the acts

emitted against the Quakers’ meetings, they still continued to be

held. It was then resolved that all persons found at the next Quakers’

meeting should be apprehended and imprisoned, and detained till they

became bound to desist from meeting; and lest the female Quakers might

also meet, it was commanded that the doors of the houses where they

usually met should be closed and the keys taken from them, that the

city might be entirely free from their meetings. The hopes of the

council were not realised. In November, 1671, they were informed that

Thomas Milne, a shoemaker, and a professed Quaker, had buried his

child on a Sunday afternoon, in a kail yard, on the east side of the

Gallowgate, which was never before used as a burial-place. This was

an intolerable encroachment upon the privileges of the burgh and the

rights of the citizens, and after deliberation, the magistrates ordered

that the body of the child should be disinterred, and carried to

Footdee Chapel burial-ground, and there re-interred. At the same time,

they resolved to deprive Milne of the rights of a citizen, and ordered

his shop to be shut up, and himself to be removed from the burgh within

one month. This, however, was not carried out, for the following year

his case was again before the council, and he was accused of burying

his child in a kail-yard on the east side of the Gallowgate. He was now

fined twenty pounds for contempt, and sentenced to be imprisoned till

he paid it. The Quakers had enclosed the piece of ground in question

with the intention of using it as a burial-place for themselves, but

the council ordered the walls to be destroyed, and the place to be

used as it was before.¹ The council were, however, unsuccessful, many

Quakers afterwards being interred in the same ground.

¹ _Burgh Records of Aberdeen_, Volume IV., pages 261, 265, 277,

280, 283, 289.

In November, 1674, the town council of Aberdeen received an order

from the Government to liberate two Quakers, Thomas Dockey and William

Gelley, who had petitioned for liberation. They had been long in prison,

and were set free on condition that if they were again found attending

meetings, they would be punished according to the laws. At a meeting

in 1675, the council had under consideration the increase of Popery

and Quakerism in the city, and since the town council was prohibited

by Acts of Parliament and Council from letting houses to such persons

under penalties, it was resolved that no Catholic or Quaker should

hereafter be admitted a burgess or freeman of the city, and that they

“are and shall be altogether debarred therefrom, excepting always the

sons of burgesses of guild succeeding to their fathers in lands or

in waters held by the town, who are and may be allowed the foresaid

liberty in virtue of their fathers’ right.” In March, 1676, one of

the bailies informed the council that he had discovered that John

Forbes was printing a book for the Quakers, and that he had seized a

part of it from the printer. The council approved of his action, and

resolved to consult the bishop on the matter. The Synod of Aberdeen,

in 1668, adopted a special form of excommunication against the Quakers:

“Forasmuch as A. B. has fallen from the truth of God and the unity of

the Church into pernicious errors and unchristian practices of that

lately risen sect, commonly called Quakers, particularly in slighting

and reviling the public ordinances of God, and being convicted thereof

... I do, in the name of the Great God, and by the authority of His Son,

our Lord Jesus Christ, the glorious Head of this Church, excommunicate

the said A. B. from the communion of the Church, and reject him from

the privileges and fellowship of the faithful, leaving him bound to

the judgment of the Lord, until he gives sufficient evidence of his

repentance; requiring you, and all Christian people, according to the

commandment of Christ, to avoid the said person, and to have no company

with him, that he may be ashamed, until he be reconciled to the Church,

as you would not incur the displeasure of God and the servants of

the Church, which upon such as transgress therein will be inflicted.”

The Synod, in 1671, also commanded the ministers of the presbytery of

Garioch to use their utmost endeavours to restrain Quakerism.¹

¹ _Burgh Records of Aberdeen_, Volume IV., pages 289, 292,

294; _Selections from the Register of the Synod of Aberdeen_,

pages 288‒289, 295.

About the year 1671, Robert Barclay of Urie, the author of the

well-known work, _An Apology for the Quakers_, joined this sect. In

the dedication of his work to the King, he stated that the Quakers did

not intermeddle with politics; and even when they were subjected to the

most violent persecution, they boldly stood to their testimony for God,

without creeping into holes or corners, or hiding themselves, as other

dissenters had done. But the authorities continued to treat the Quakers

with great severity. In the beginning of 1672, fifteen of them were

imprisoned at once for holding a meeting at Montrose; and in March,

1673, eleven persons were imprisoned at Kelso for holding a meeting.

Yea, in 1683, the Bishop of Aberdeen reported to the Privy Council that

in this district the Quakers were so bold as to build meeting-houses

for their worship, and schools for their children, instructing them

“in their godless and heretical opinions;” and also providing funds

for supporting these establishments, and in some places adding

burial-grounds for their own special use. The council issued orders

for an inquiry among the leading Quakers concerning the owners of the

ground on which these unnecessary houses and schools had been built.

The result of such an inquiry is obvious. Even after the Revolution,

the Quakers in Edinburgh, in Glasgow, and in other towns, were very

severely treated.¹

¹ _Register of the Privy Council._

Trials and executions of witches frequently occurred in this century,

but it would be tedious to enter into particulars of the trials. Indeed,

many of these are quite unfit for publication, such as the descriptions

of the dealings of some of the witches with the devil, and the horrible

stories which were adduced as evidence.

In 1622, Margaret Wallace, the wife of John Dinning, clothier in

Glasgow, was tried before the Justiciary Court at Edinburgh, for

various acts of witchcraft, and as a common practiser of witchery. It

was stated, as an element against her, that she had been a confederate

of Christian Graham, a notable witch, executed in the preceding year.

It was affirmed that she had been a witch for eight years, and a common

consulter with witches. It was alleged that she had conceived a deadly

hatred of Cuthbert Greig, a cooper and a burgess of Glasgow, because he

had spoken against Christian Graham. “She avowed that she should make

him, within a few days thereafter, unable to work or to win a cake of

bread for himself.” Accordingly he was soon after attacked and troubled

with a strange, unnatural, and unknown disease, by which he was most

cruelly tormented with continual sweating for two weeks, when he was

reduced to extreme weakness. The man’s friends endeavoured to induce

her to interpose for his recovery, but she for a long time refused. At

last she came to his house, and “to manifest her skill for his help,

took him by the wrist with the one hand, and laid the other hand upon

his breast, and, without speaking a word, save only moving her lips,

left him immediately. She returned next morning, took him by the hand

and bade him arise, who at that time, and for fifteen days before, was

unable to move his limbs without help; having urged him to rise, she

took him by the hand, brought him out of his bed, and through the house

into the outer room, where, by her sorcery and charming, he walked up

and down the floor without any support.” After this, it was stated,

that he soon recovered from his illness. She was also associated with

Graham in curing children of sickness by unlawful means, “by devilry,

sorcery, and witchcraft.” The onlaying and offtaking of sickness among

children form a considerable part of the indictment against her, and it

was alleged that in one instance, when she had inflicted sickness on a

child, she allowed it to die. At her trial she was ably defended; but

she was convicted and sentenced to be hanged and burned, and she was

accordingly executed on the Castle-hill of Edinburgh.¹

¹ Pitcairn’s _Criminal Trials_, Volume III., pages 508‒536.

Margaret Wallace’s trial was a very long one; her counsel

contested every point of the indictment, which consisted of

ten charges. The jury was unanimous in finding her guilty

of the general charge――“as a common consulter with witches

these eight or nine years ... and as practising devilry,

incantation, and witchcraft, especially forbidden by the

laws of Almighty God, and the municipal laws of the realm.”

In 1623, Thomas Grieve was tried in Edinburgh for practising a sort of

medical witchcraft. He was accused of having cured a number of persons

of sickness and grievous diseases, by sorcery and witchcraft, by making

signs and crosses, and the uttering of certain unknown words. “He took

sickness off a woman in Fife, and put it upon a cow, which thereafter

ran mad and died.” He also cured a woman “of a great and painful

sickness, by drawing her nine times backwards and forwards by the

leg.” He cured a child of a disease which was rapidly consuming

it, “by straiking back the hair of his head, and wrapping him in an

anointed cloth, and by that means putting him asleep, and thus through

his devilry and witchcraft cured the child.” Another point of his

indictment was, “for curing of William Cousine’s wife by sorcery and

witchcraft, by causing her husband to heat the coulter of his plough,

and to cool the same in water brought from the Holy Well of Hillside,

and thereafter making certain conjurations, crosses, and signs upon

the water, causing her to drink thereof for her health, and thus,

by sorcery, cured her of her sickness.” One point of the indictment

described a different mode of curing sickness. “For curing of James

Mudie, with his wife and children, of the fever, and namely, in curing

of his wife, he caused a great fire to be put on, and a hole to be made

in the north wall of the house, and a live fowl to be put forth thereat,

at three several times, and taken in at the house-door backwards) or

contrary to the course of the sun), and thereafter taking the fowl

and putting it under the sick woman’s arm-pit, and then carrying it to

the fire, where it was held down and burnt alive; and in that devilish

manner, practiced by him, cured her of her sickness.” For this he

received twenty pounds from her husband. When curing diseased cattle,

he put them thrice through a hesp of yarn, and sprinkled the fire with

enchanted water. The hesp of yarn was supposed to possess peculiar

healing virtues. Thomas Grieve put several of his patients three times

through a hesp of yarn, and then threw it into the fire, where it

burned blue, so that his patients were cured. The jury found him guilty

of sorcery and witchcraft, and he was sentenced to be executed on the

Castle-hill of Edinburgh.¹

¹ Pitcairn’s _Criminal Trials_, Volume III., pages 555‒558.

In the appendix to the third volume of Pitcairn’s _Criminal

Trials_, the confessions of three women accused of witchcraft,

in the years 1649 and 1662, are given at length; and they

contain a great mass of the most repulsive details of this

degrading superstition. Of all the records of witchcraft

which I have examined, these are the most vulgar and absurd.

During the reign of Charles I. many witches were tried and executed

in Scotland. When such crude notions prevailed, it was not surprising

that pretence and imposture should come to the surface. So in 1633,

John Balfour in Corshouse had assumed the profession of a discoverer of

witches, “by observing the devil’s mark upon some part of their person,

and thrusting of pins in the same.” The Privy Council record mentions

that, “upon presumption of this knowledge, he goes through the country,

abusing simple and ignorant people, for his own private gains.” It was

therefore resolved to inquire into his pretensions to such knowledge,

and by what means he acquired it.

In the records of the Church courts many notices of witchcraft, and of

persons using charms for curing disease, occur throughout the century.

The kirk-session of Aberdeen, in 1630, summoned James Hall to appear

in the church before God and the congregation, to confess his fault,

and to crave forgiveness for seeking relief of his fever by means

of charming. In 1637, Isabel Malcolm appeared before the presbytery

of Strathbogie, and when accused of charming, she confessed that she

had practised charming for twenty years.¹ The case “was continued in

the hope that she should be found yet more guilty.” These cases of

witchcraft and charming referred to in the ecclesiastical records were

often connected with attempts to cure some severe disease. Associated

with this form of the superstition there was a kindred one called

“neid-fire,” that is, fire produced by the friction of two pieces of

wood; and this was resorted to for curing diseased cattle, and seems

to have descended from prehistoric times.

¹ _Selections from the Records of the Kirk-Session of

Aberdeen_, page 111; _Extracts from the Presbytery Book of

Strathbogie_, page 15. Other notices of charming and sorcery

occur in the records of this presbytery.

The General Assembly of 1649 had under consideration the sin of

charming and witchcraft, and appointed a commission to deal with the

matter. At this time there was a general attack made upon the witches

and charmers throughout the kingdom; and in the summer many of these

poor creatures were tried, condemned, and executed; while the Committee

of Estates issued various commissions for the trial and execution of

the witches. It also passed an Act “against consulters with devils and

familiar spirits, and against witches and consulters with them,” and

ratified all former acts on the subject. These trials were infectious,

as when one witch was brought up, she often accused others, and under

the influence of this mania strange declarations were uttered. In the

month of March, 1650, Janet Couts, a confessed witch then imprisoned

in Peebles, accused eleven women in Lanark of witchcraft. They were

accordingly apprehended, and Cathie, the pricker, before witnesses,

“did prick pins in every one of them, and in several of them without

pain when the pin was put in, as the witnesses can testify;” the women

were therefore detained in prison. Efforts were made to induce them to

confess their guilt, and every exertion was made to collect evidence

against them, but hardly anything could be found, though at length

charges were framed against three of the women. One of them, however,

was liberated upon the statement of Janet Couts herself. The other two

were tried by a Commission, and witnesses on oath minutely examined,

but nothing could be proved against them; and they were dismissed on

giving caution to appear again if required. About this time a man of

the name of John Kincaid acted as a pricker of the witches. A quotation

from his evidence in a trial for witchcraft will give an idea of this

feature of the proceedings. The parties accused, Patrick Watson and

Manie Haliburton, were tried in 1649, and the pricker’s testimony was

to this effect:――“I, John Kincaid, was desired to use my trial of them,

as I have done to others; which, when I had done, I found the devil’s

mark upon the back of the said Patrick Watson, a little under the

point of his left shoulder; and upon the left side of the said Manie

Haliburton’s neck, a little above the left shoulder; whereof they were

not sensible, neither came forth thereof any blood, after I had tried

the same as exactly as ever I did any others. This I testify to be of

verity upon my credit and conscience.” At the same period, there was a

pricker in the north of Scotland, called John Dick. And he, without any

authority, pricked an old man, John Hay, a messenger in Tain, and then

caused him to be sent to Edinburgh and imprisoned. But on a petition

from Hay, accompanied with certificates of character, the Lords of

Council ordered him to be liberated. In this way suspected women were

sometimes subjected to great torture.¹

¹ _Acts of the Parliaments of Scotland_, Volume VI., pages 447,

464‒465, 492, 359; Pitcairn’s _Criminal Trials_, Volume III.,

page 599.

Thus it was, that under the influence of a malignant and debasing

belief, many innocent persons were insulted, annoyed, injured, and

imprisoned, dragged to trial, and sometimes sentenced to death itself.

During Cromwell’s sway in Scotland, the prosecutions for witchcraft

were much restrained; but after the Restoration, for two or three years,

many were executed. The first session of the Restoration Parliament of

1661 granted many commissions for trying persons accused of witchcraft,

to make up for the lenity of the past period. In illustration of the

notions adduced as facts at these trials, the case of Margaret Bryson

may be taken: she came to words with her husband about selling her

cow, “went in a passion to the door of the house in the night-time,

and there did imprecate that God or the devil might take her from her

husband; and the devil immediately appeared to her, and threatened to

take her body and soul, if she did not enter into his service.” Another

woman covenanted with the devil, and received a sixpence from him;

he said that God bade him give her that, and asked how the minister

was, and other questions. A domestic servant named Scott had much

intercourse with the devil, and by his aid she raised gales of wind

for the destruction of shipping. She often met the devil at night.¹

¹ _Acts of the Parliaments of Scotland_, Volume VII., pages

123, 196, 233, 235, 247, 248, 268, 283, 336; _Register of

the Privy Council_. In the records of the Council there are

instances of witches being acquitted, but detained in prison

at the request of magistrates and clergymen, in the hope that

more conclusive evidence would yet be obtained against them.

During the period of the persecution, the zeal against witches flagged,

and the executions for witchcraft decreased. After the Revolution

there was a short outburst against them; but from this time onward,

the belief began to languish, until it has gradually, and with

difficulty in some parts of the country, died out. The last execution

for witchcraft in Scotland occurred in 1722. The crude and most

pernicious notions associated with witchcraft faded with the advance

of education, the diffusion of definite intelligence, and more exacting

modes of testing evidence; and lingered longest in the remote corners

of the country, least affected by the stirring influences of modern

civilisation.

The social morality of the nation in the seventeenth century cannot be

characterised as elevated, though in some directions there was evidence

of improvement. An account of the means adopted for the amelioration

of the morals of the people after the Reformation was given in the

second volume of this work, and an indication of its operation on

the national character throughout the century under review is all

that seems requisite. The discipline exercised by the Presbyterian

Church was rather severe and rigid, though from this standpoint it has

frequently been greatly exaggerated. It should be distinctly remembered

that the presbyterian form of worship and polity was the choice of the

people themselves, that they were fully represented in all the Church

courts, in the sessions, the presbyteries, the synods, and the General

Assemblies; they had a voice in the election of their ministers, and

members of every congregation had votes in the election of the elders

and deacons, who constituted the session. In fact, in the history

of presbyterianism, we meet with evidence at every turn, that the

clergy themselves were much under the influence of the people, who

in various ways wielded a practical and effective control over their

ministers. The Scots submitted to some severe rules and curious forms

of punishment for social and moral offences, which emanated from the

Church courts; but even in these matters resistance was frequent, and

the tyranny of the presbyterians over one another was never of long

duration.

All licentious conduct in the relations of the different sexes was

severely handled. In the beginning of the century the kirk session of

Aberdeen was exercising a strict surveillance over the citizens. John

Mitchel was ordered to be imprisoned in the vault of the church, until

he found caution that he would adhere to his wife, and maintain her.

At the same time, John Davidson, a wright, who had been twice warned

to appear and answer to the complaint of his wife, but had failed to

appear, was for his contumacy ordered by the session to be apprehended,

and put into the steeple until he obeyed their ordinance touching his

adhering to his wife and his future behaviour to her. Christian Burnet

was ordained to stand a certain time in the session-house, “and then

to be led through the town in a cart, with a crown of paper on her

head, and to be publicly banished at the market-cross, because she had

seduced her sister to harlotry with James Sinclair, which was committed

in Christian’s own house; and the reason why she was so punished to be

openly proclaimed by the hangman.” It was quite common for the Session

to interfere on the side of a wife against her husband, or on the

side of a husband against his wife, when either of them had failed in

performing their mutual duties.¹

¹ _Selections from the Records of the Kirk-Session of

Aberdeen_, pages 23, 40‒1.

The kirk session of Aberdeen adopted the following heads of reformation

in 1604, applicable to every family in the city. The whole family

should keep the Sabbath, abstaining from all manual labour, attending

all the sermons in the parish church, and all those who could read

should learn to sing publicly. The heads of families should attend all

the sermons on the week days, and should meet to the catechising as

often as they were called by the church-officer. All families should

humble themselves, privately or openly, twice every day, using divine

worship and frequent prayers. There should be no swearing, no profane

language, no unseemly behaviour in any family; and if a member of the

family transgressed, he was “to be sharply punished with a palmer on

the hand, or a penalty in money, and in case of persistence, it should

be reported to the visitors. The masters of families should diligently

report all persons guilty or suspected of charming, popery, harlotry,

drinking, night-walking, or any other inordinate livers. No house

proprietor in the town should let houses to, or lodge, persons

known or suspected to be excommunicated, or any obstinate Catholic,

Jesuit, priest, or other stranger, till they have first informed the

magistrates and the minister, and received their permission.” Certain

rules were also approved for the guidance of the visitors of the burgh.

The ministers resolved that every Thursday afternoon they should wait

on their people for examining and catechising them, and to continue

this instead of the morning sermons until the people be better

acquainted with the knowledge and the grounds of their salvation.

The visitors were instructed to assemble the families under them for

examination, and to inform the examiners of such faults in the families

as required rebuke and admonition, before making any public complaint

against them.¹

¹ _Selections from the Records of the Kirk-Session of

Aberdeen_, pages 32‒34.

At stated times each presbytery visited the churches within its bounds,

when a strict and searching examination was instituted into the life

and the work of the pastors, as well as their flocks. An example or

two will give an idea of these proceedings, and of the ecclesiastical

economy of the time. In September, 1609, the presbytery of Aberdeen

visited the church of Durris, and after prayer by the bishop, they

proceeded with the matters of the visitation. The elders of the

congregation were present, and Alexander Youngson, the minister, was

removed, and then the elders gave their opinion of his ministry. The

record says that he was well commended both by the eldership and the

parishioners, “praising God for him.” The minister and the elders were

commanded to put their acts into execution against all who contravened

them, and amongst the rest against sleepers in the church during divine

service.¹

¹ _Ibid._, pages 201‒202.