THE notion that Scotland has long been depicted as a lawless, ‘uncivilized’ nation by its more ‘civilized’ southern counterpart is a historical red herring. Rather, it was not until the nineteenth century, when a general moral panic regarding crime and criminal activity took hold across Britain as a whole, that Scotland, in particular, was portrayed as a bad example to its neighbours south of the Tweed. For instance in 1844, the Tory Sheriff of Lanarkshire, Archibald Alison, declared that ‘in Scotland, destitution, profligacy, sensuality and crime advance with unheard-of rapidity in the manufacturing districts. And in these areas throughout the country as a whole, the dangerous classes massed together, combine every three of four years in some general strike or alarming insurrection, which, while it lasts, excites universal terror.’1 By the mid-nineteenth century then, the link between rising crime and social disintegration was strongly felt in a Scottish context.
In the earlier period, however, the criminal condition of Scotland is harder to establish in general terms. For instance, the collection and publication of nationwide crime statistics did not begin in earnest until the middle of the nineteenth century.2 Moreover, social commentators and pressmen alike paid little attention to the illegal exploits of individuals in the pre-modern era, preferring instead to concentrate on matters of state or economy. This makes it difficult to analyse the range and extent of felonious activity in Scotland before 1850. In addition, little historical scholarship has been undertaken thus far on Scottish criminal enterprise in the early modern period, so we are faced with a variety of research questions that need to be addressed in this chapter. What type of criminality prevailed in early modern Scotland, and how does this compare with that elsewhere? Was there a gendered difference in the criminality on display during this time? Were there regional variations in criminal activity evident during the early modern period? Is there evidence of change over time in the types of crimes committed and the levels of violence employed? In other words, can we see evidence of a ‘civilizing process’ where more violent crimes were tamed and the perpetration of more commercial crimes increased? What factors influenced criminal activity in Scotland and did these differ from motives elsewhere? And finally, to what extent was the nineteenth-century concept of the ‘Barbarous North’ applicable to Scotland during the early modern era?
This chapter is based on evidence of serious criminality across Scotland between 1700 and 1830. As well as utilizing broadside material and popular literature, the chapter will base its conclusions on nearly 6,500 criminal prosecutions brought before the Scottish Justiciary Court during the period under review. The Justiciary Court was the supreme jurisdiction dealing with criminal matters in Scotland.3 The High Court of Justiciary was established in 1672 and based in Edinburgh. Three associated Circuit Courts were also organized at this time to extend the reach of the court’s jurisdiction across Scotland. The North Circuit related to courts held in Aberdeen, Inverness, and Perth. The West Circuit managed the courts held in Glasgow, Inverary, and Stirling, and the South Circuit dealt with the courts held in Ayr, Dumfries, and Jedburgh. After 1747, an increase in the volume of business brought before the Justiciary Court, due to its assimilation of defunct local jurisdictions, meant that the court went on circuit twice a year, usually in the spring and autumn.
The Justiciary Court had a wide remit when dealing with criminal offences. In the early modern period it dealt with moral crimes and petty offences from time to time, but these were increasingly assigned to the more ‘inferior’ jurisdictions (such as the Sheriff Court and the Justice of the Peace Court) over the course of the eighteenth century. In the main, therefore, the Justiciary Court dealt with ‘serious’ offences such as political and treasonous crimes, the four pleas of the Crown (murder, rape, robbery, and arson), and other felonious activities. These included assault, bestiality, counterfeiting and fraud, infanticide, riot, sodomy, theft, and the sale of stolen goods (known in Scotland as resett), as well as a variety of other misdemeanours.
In the management of these offences, the court also had a wide range of punishments at its disposal. However, from the end of the seventeenth century onwards, the punishments meted out by the Justiciary Court became more fixed and prescribed. Sentences of death by hanging or banishment overseas were the most common punishments received by those convicted of political crimes or serious offences, especially those which had involved the use of violence. For lesser offences heavy fines, corporal punishment, and imprisonment (or even a combination of the three) were more regularly meted out by judges of the Justiciary Court.4
It should be remembered from the outset that any study of criminal activity that is largely based on court indictments will only ever provide a snapshot of the illegality that took place. Indictment evidence tends to reflect the amount of crime reported rather than the amount of crime actually committed, since the real incidence of crime can never fully be known. Thus, in any study where court records predominate over other source materials, the picture of criminal behaviour will be incomplete. Just as many variables affected the reporting of crime as its perpetration. Furthermore, indictment records in themselves cannot tell the whole story of crime and those who perpetrated it. For instance, little evidence is provided about the backgrounds of the suspects accused of serious crime. A further complication associated with Justiciary Court evidence in particular is that it will provide a relatively unbalanced picture of Scottish criminality. As that court only dealt with the most serious offences, an analysis of its records might exaggerate the picture of serious crime in early modern Scotland and downplay more general, everyday acts of petty illegality. Thus subsequent studies using other court records or alternative source material might eventually qualify some of the findings of this chapter. Ultimately, it can be said that this work analyses a significant proportion of the serious crimes indicted in Scotland between 1700 and 1830.
The chapter will start with a brief review of the limited historiography we have relating to early modern criminality in Scotland. The piece will then move on to examine the nature of Scottish crime in the period 1700–1830. To do this, four categories of serious crime will be examined: property crime, fatal violence, harmful violence, and crimes of protest. Within each of these categories the relative incidence of criminality, the offenders involved, the methodology employed, and the motive behind the criminality will each be addressed in turn. Through this type of detailed analysis, the chapter will address the research questions outlined above with a view to determining whether Scotland could be considered a ‘barbarous’ nation during the early modern period.
The Scottish experience of deviant behaviour has been largely neglected by scholars until relatively recently. This has led one historian to describe Scotland as a nation without a criminal record.5 Certainly, by comparison, historians south of the border (and arguably those elsewhere) have gone much further in dealing with the issue of crime across historical periods.6 Interestingly, however, much of the work that has been carried out on crime north of the border has tended to focus on female criminality during the early modern period. Scholars have gone little further than this in either chronological terms or in relation to gender, and save for a few articles on punishment practices and general survey pieces that emphasize the potential of studying Scottish crime in the period after 1747, little has as yet been achieved.7
Arguably, the only real exception to this historiographical void is the work that has been carried out on popular disturbance and protest in Scotland. This type of illegality has been examined over a longer period of time and has included reference to both male and female participants. ‘Traditional’ scholarship has highlighted what has been termed an ‘orthodoxy of passivity’ amongst the Scottish populace.8 Writers like Christopher Smout maintain that one of the most notable elements of lowland Scottish society, especially in relation to the early modern period, is the almost total absence of overt social discontent amongst the Scottish people.9 This notion of the ‘uninflammability’ of the Scots has more recently been challenged, however, chiefly by the work of Christopher Whatley.10 Although at first glance the Scots might appear more quiescent in comparison to their English counterparts, there is compelling evidence emerging which suggests that they were far less ‘tame’ than had previously been supposed.
From the blood-feud and clan wranglings of the sixteenth century, the Covenanting rebellions of the mid-seventeenth century, the Levellers’ revolt in Galloway in 1724 and the various Jacobite risings most prominent in the eighteenth century, through to the anti-clearance protests in the Highlands which began in the mid-nineteenth century and escalated thereafter, there appears to have been something of a tradition of ‘collective action’ in Scotland.11 This seems to have been largely ignored by proponents of the ‘passivity’ thesis. Further evidence relating to the first half of the eighteenth century cites incidents such as the anti-Union and malt-tax riots of the early 1700s, the Porteous riot of 1736, as well as a variety of anti-customs scuffles, food riots, religious-based revolts, and numerous forms of ‘everyday’ protest.12 This suggests that traditional thinking regarding popular disturbances in Scotland is in need of revision, particularly with reference to the eighteenth-century experience. This present chapter extends and develops the emerging revisionist historiography of Scottish protest by providing a detailed analysis of the range of collective action that men and women were engaged in between 1700 and 1830.
Much of the remaining scholarship around early modern Scottish criminality has been limited to discussion of the types of crimes traditionally associated with women, namely witchcraft and infanticide.13 My own earlier work, Women and Violent Crime in Enlightenment Scotland, advanced this orthodox analysis to include the investigation of female participation in more mainstream forms of criminal activity. The piece concluded that Scottish women were involved in a range of violent offences during the long eighteenth-century period, and owing to the fact that they had betrayed the notional qualities of their sex when they had behaved in an overtly felonious manner; the Scottish authorities were keen to apprehend and punish them through public displays of judicial authority.14 Clearly, the Scottish courts recognized the potential for female deviancy. This contrasts with the English experience, where the criminality of women was largely ignored as anomalous and unusual. South of the Tweed during the early modern period, women were not considered independent, autonomous actors in criminal activity. Rather, it was believed that they only ever perpetrated illegal acts at the behest of men.
Despite advancing our knowledge of Scottish crime and the reaction to its committal in the early modern period, this earlier analysis was restricted to the Lowlands of the country and only effectively examined the history of crime in Scotland over a sixty-five-year period. Whilst it is certainly refreshing to see that the history of female criminality in the pre-modern era has received the attention of scholars before that of men, it is nonetheless remarkable that as yet there is no scholarship of male criminality, in a country traditionally associated with aggression, confrontation, and displays of masculine authority. This chapter will go some way to address this evident historiographical lacuna by looking at the crimes of Scottish men alongside those of Scottish women between 1700 and 1830.
As was the case elsewhere in Britain and Europe during the early modern period, crimes against property made up the vast majority of business brought before the courts.15 The preponderance of property offences undoubtedly relates to the fact that these crimes were relatively easy to commit and were likely to bring some form of material or personal gain. Although, in general, theftuous offences were less likely to be reported than other types of crime, since the cost of bringing a prosecution often meant that legal action was not worthwhile, this type of crime still dominated legal proceedings. Indeed, indictments for theft predominated over all other categories of crime brought before the Justiciary Court and involved a significant number of male and female participants.16
For instance, during the middle decade of the eighteenth century, Colin Martin, Betty McIntosh, Margaret Wilsone, and Christian McGichan were indicted at the West Circuit Court of Glasgow for ‘stealing and carrying away a certain quantity of silk and yarn, twelve spindles of linen thread, a webb of handkerchiefs, four table napkins and eight silver candlesticks’ from two houses in Kirkintilloch. Angus McIntosh, an excise officer, was indicted at the High Court in Edinburgh for stealing bank notes ‘to the value of thirty pounds sterling and upwards’ from the pocket of Thomas Gray whilst they drank together at an Ayrshire inn. Agnes Bishop was charged with the theft of several bottles of wine, some cheese, and an iron bucket from her master’s shop in Dundee. In the same period Walter Graham was accused at the South Circuit of Dumfries of stealing a watch from the person of Alexander Constable, his landlord.17
From the recorded evidence, we can see that although daring on occasion, the crimes committed by Scottish thieves tended to be fairly mundane rather than ambitious or elaborate. Most of the indicted individuals could not be considered ‘professional’ or career criminals, as their activities were largely a result of opportunity rather than prior planning, and on the whole, recidivism was rare. Having said this, however, there is evidence to suggest that a criminal network existed in early modern Scotland, in both rural and urban areas. There was an obvious market for stolen goods at this time, and the range of items stolen by Scottish thieves reflects that greed, as well as need, was a motivational factor in this type of criminal endeavour. Rather than being stolen for immediate use, goods were commonly sold on to black marketeers for profit. Receiving stolen goods, or resett, was frequently indicted at the Scottish Justiciary Court. Overwhelmingly, it was the preserve of female offenders, in part because, traditionally, pawn-broking was a female concern.18
Aside from varieties of theft, fraud and forgery offences were evident amongst the property crimes indicted at the Justiciary Court. However, they were relatively uncommon until the latter decades of the eighteenth century when the cash nexus had developed sufficiently enough to merit exploitation. Far more commonly seen in the records of the Scottish courts throughout the early modern period was the crime of robbery.
Robbery, or stouthrief, was the crime most feared by the Scottish populace, principally because it involved the violent subduing of the victim. For this reason, indictments for robbery regularly resulted in a conviction, and it was common for perpetrators to be executed with bodily mutilation inflicted pre- and post-mortem. Criminal historians of pre-modern England have described how robbers there would typically use only enough violence to make the victim part with their belongings. This meant a great deal of variety was involved in terms of the amount of violence perpetrated and, indeed, it seems that in many instances mere verbal intimidation was all that was required.19 In Scotland, however, some 79 per cent of those accused between 1700 and 1830 were additionally charged with aggravated assault as well as robbery, reflecting the severity of their actions.
In addition, where in England the vast majority of robbers did not carry violent or lethal weapons, preferring instead, where violence was indeed employed, to use fists or temporary strangulation, from witness evidence in Scotland it is clear that most robberies were carried out using knives, razors, pistols, or cudgels. In these respects, the actions of Scottish robbers bear direct comparison with those of the ‘footpad’ robbers prevalent in eighteenth-century London. As Frank McLynn describes it: ‘The species of London criminal feared most was the footpad, the armed robber operating on foot, usually in gangs.’ Due to the fact that footpads could not leave the crime scene very quickly, they regularly attempted to lower their chances of apprehension by rendering their victim incapacitated through extreme acts of violence. As a result, McLynn argues, ‘the footpad was regarded with loathing and horror’.20
A typical example would be the case of Mary McGhie, who was indicted for robbery at the North Circuit Court in Inverness in 1765. The jury heard how the pannel (the accused) crept up behind Alexander McWilliam, struck him over the head with an iron pipe and repeatedly beat him to the ground, stabbing him about the legs with a razor. McGhie then took hold of her victim by the throat and almost strangled him with his necktie whilst ordering him to yield his purse. When McWilliam refused to do this, McGhie grabbed her victim by the hair and dragged him to a nearby burn where she ‘sat upon the victim’s head whilst it was underwater rendering him quite insensible; he thereafter vomited and started to cry.’ McWilliam was latterly rescued by some passersby, but not before McGhie had made off with more than seven pounds in gold and silver sterling.21
As the above example illustrates, Scottish women clearly played their part in this type of crime, and were not merely there to make up the numbers, or to act as lookouts, as historians have often supposed.22 Rather, Scottish women were active participants in criminal activity in their own right, and this was arguably most evident when it came to robbery. Scottish women made up a third of those indicted for this offence at the Justiciary Court. This proportion is markedly higher than that found elsewhere in Britain during the early modern period,23 and suggests not only a predilection for violence amongst Scottish women, but also a determination on the part of the Scottish authorities to bring violent female offenders to justice.
The most infamous criminals in eighteenth-century Scotland were robbers who killed their victims. Individuals like Robert Dun and John Key, who shot and killed James Hutchison while robbing him of his saddlebags and a watch in Ayr in 1781, or Alexander Martin, who used an axe to bludgeon his victim to death in Aberdeen in 1824 before making off with various items of jewellery, were vilified in both the courtroom and in the press.24 Despite the expression of universal horror at this type of crime, Scottish society was nonetheless fascinated by murderous robbers. The growth of popular interest in crime and criminality, which largely began in the post-Enlightenment era in Scotland, was seemingly initiated by the actions of felons like Dun, Key, and Martin as well as their criminal successors.
Unlike many other crimes, homicide was unlikely to contribute much to the ‘dark figure’ of unreported crime in early modern Scotland. This was not only due to the seriousness of the offence but also to the difficulties associated with the disposal of evidence. Between 1700 and 1830, men predominated in indictments for homicide across Britain. In Scotland they outnumbered women by nearly three to one. However, if we broaden our definition of homicide to include killings more generally, then the gender difference is not as substantive, due to women’s predominance in instances of infanticide or newborn child killing.25
Scottish men were more likely to kill outside the home as a consequence of drunken brawls or heated arguments. It was very rare for a man to be involved in a premeditated act of murder. One curiosity from the recorded evidence is the extent to which soldiers were indicted for homicide, particularly in urban areas. This was probably a reflection of the fact that they were regularly armed but often unoccupied, which seems to have been something of a deadly combination. Men also killed within the domestic sphere, but this was fairly unusual and was typically limited to attacks on spouses or paramours. There is little evidence of other familial murders or the killing of domestic servants, which appears to have been more common south of the Tweed during the early modern period.26
The following examples are typical of the range of homicide indictments charged against Scottish men in the pre-modern era. James Day was indicted in Edinburgh in 1724 for the murder of James Park, whom he bludgeoned to death with a poker after a dispute about money. Day tried to cover up his crime by cutting Park’s body into pieces with a view to burning the remains, but he was caught by the authorities while doing this. In 1758 David Edwards (a sergeant in the Regiment of Foot) was indicted at the South Circuit in Ayr for the murder of a fellow soldier. A witness reported that the victim had not only been wounded by the marks of a bayonet, but he had also been strangled. The murder had taken place after a drunken altercation involving a prostitute. Later in the eighteenth century, James Henderson was indicted for the murder of Alexander Gillespie in Aberdeen. In the middle of the night in October 1790, a drunken Gillespie had been throwing stones at Henderson’s house and had broken a window. Henderson was incensed by the damage to his property. He ran outside and using an axe, hit Gillespie over the head with such force that it took three men to remove the murder weapon from the victim’s skull. John Wilson was similarly accused of homicide in 1827. In the midst of a heated argument, where Wilson had accused his wife of having an affair, he stabbed her repeatedly in the chest and shoulder with a clasp knife while endeavouring to extort a confession of her infidelity. When none was forthcoming, Wilson grabbed his wife by the hair and slit her throat from ear to ear with a large carving knife. Realizing what he had done, Wilson then tried to take his own life, but was prevented from doing so by a neighbour.27
The Scottish women accused of killing in the early modern period, in contrast to their male counterparts, almost exclusively killed within the domestic sphere. Lovers and spouses were often the victims (sometimes in retaliation for abuse of one kind or another), but women could also kill their servants and other relations on occasion. Most commonly, however, Scottish women killed their children, particularly newborns. Infanticide was a particular concern of the Scottish Judiciary, as it was a blatant example of overt deviance amongst women that went directly against the notional qualities of their sex. Moreover, there is evidence to suggest that Scottish women who perpetrated infanticide committed their crime in a much more violent manner than has been depicted elsewhere. Blood was commonly shed in episodes of infanticide across early modern Scotland. Although the exact reasons for this heightened aggression remain unclear, the murder of newborn children in Scotland goes a long way to explain the unsympathetic attitude of the Scottish authorities towards women convicted of this crime.28
The following examples are typical of the acute level of violence employed by Scottish infanticidal women. In 1708, in Kinghorn, Fife, Margaret Selkirk was indicted for ‘using her bare hands to rip the jaws of her newborn infant down to its throat’. In Jedburgh seven years later, Jean Stourie bludgeoned her baby to death with a smoothing iron, ‘by which one if its eyes popped out’. Catharine Gray used a garden rake to bludgeon her child to death in Blairgowrie, Perthshire, in 1732. In 1765 Kathrine Finlay was indicted for an infanticide where she had dismembered her son with a kitchen knife, placed the pieces in a large jug, and boiled the contents on the fire. Then in 1803 Catherine Chalmers was brought to court for having slit her newborn infant’s throat ‘from ear to ear’ with a razor.29
Fatal violence of any sort could certainly excite interest from the general populace, even in a pre-sensationalist era. The authorities regarded homicide and infanticide as serious crimes and convictions, for either offence commonly resulted in execution. Yet, perhaps because most of the murders were committed in hot blood, or lacked premeditation, robbery was considered the more heinous offence by judicial officials. Although instances of fatal violence are often used as a barometer of how violent a country is over time, there is no real evidence of change over time in terms of incidence, weaponry, methodology, or motive in recorded Scottish killings, save for a slight increase in poisonings towards the end of the century. Indictment material suggests that in relation to serious interpersonal violence at least, the notion of a ‘civilizing process’ had only a limited part to play in early modern Scottish society.30 Killings in post-Enlightenment Scotland largely mirrored those of the century before.
The Scottish judicial attitude to more everyday types of violent activity differed to that of its southern counterpart in the way offences were categorized. In England the term ‘assault’ was used in a blanket fashion to describe all types of non-fatal skirmishes and misbehaviour.31 In Scotland, by contrast, a broad palette of specific offences existed by which to indict belligerent individuals. Attempted murder, aggravated assault, hamesucken (an attack on a person within their own dwelling place), abuse, or ordinary assault, as well as violent threatening, are just a few examples of the offences charged against Scottish men and women during the early modern period. One interesting thing to note is the relative absence of sexual violence from Scottish court proceedings. Between 1700 and 1830, only a handful of rapes and other forms of sexual assault were indicted at the Justiciary Court. Indeed the number of bestiality cases far outnumbers those of interpersonal sexual violence, but this disparity is most likely due to under-reporting than limited perpetration.32
Due to the nature of the remit of the Justiciary Court, the types of harmful violence indicted there were relatively ‘serious’ in nature. Although the Justiciary evidence offers us a glimpse of some of the types of everyday violence committed in early modern Scotland, a survey of offences brought before the more minor Scottish courts would tell us more. From the evidence we do have to date, it is clear nonetheless that instances of harmful violence were regularly brought to the court’s attention. This is evident not only from the official trial papers, but also from the thousands of applications made to the Justiciary Court for bonds to keep the peace, where individuals craved personal protection from the authorities in the midst of disputes between family members, neighbours, and acquaintances.33
From the recorded evidence and the examples below, we can see that on the whole, the acts of harmful violence perpetrated in early modern Scotland were unplanned and unpremeditated. They often simply occurred as part of a drunken altercation, but other episodes were more specifically to do with defending honour and reputation, financial disputes of one sort or another, or were the culmination of long-running tensions between neighbours. There are only a few instances of domestic violence on record from the period. This is largely due to the fact that at the time, the physical chastisement of a wife by her husband was permitted, and thus, only on the most grievous of occasions did this type of abuse come to light.34
At Stirling in October 1708 John Foyar was indicted for the assault and battery of Sir James Stewart, whom he had attacked with a poker after a game of cards went sour. Stewart escaped with his life, but was badly beaten and bruised by his assailant. In 1736 Elizabeth Lynch was indicted for invading, assaulting, beating, and wounding Hugh Lawson upon the High Street of Perth. In carrying out the attack, Elizabeth had ‘used a whip to the great effusion of Lawson’s blood and danger of his life’. Elizabeth claimed that she had received abusive language from Lawson and that ‘she had taught him a lesson in how to behave’. John Fulton was indicted at the South Circuit of Ayr in 1774, charged with violently assaulting, beating, wounding, and bruising one Neil Finnie. The court heard that Fulton ‘had reason to suspect that liberties had been taken with his character by Mr Finnie’, through correspondence which Fulton had seen. In revenge for this slur on his reputation, Fulton attacked Finnie with a broken bottle, cutting one of his ears off and disfiguring his facial features so that he was barely recognizable to his family. Felix McLaughlin and his wife Alice were indicted in 1815, charged with assaulting, maiming, and wounding various individuals on Glasgow Green. Alice McLaughlin was drunk and had become very aggressive. To her husband’s amusement and her neighbours’ dismay, she began to attack random men and women with a garden fork, stabbing them in the buttocks and legs ‘whilst shouting all manner of profanities at the top of her lungs’.35
Acts of harmful violence happened across Scotland between 1700 and 1830 anywhere people came together. There was no obvious rural or urban predilection for this type of criminality and, in general, no significant change in perpetration over time. As we have seen, both men and women perpetrated brutal types of assault in early modern Scotland. Unlike instances of fatal violence, however, female assailants who committed assault were not wholly restricted to the domestic sphere. Rather, they were often involved in violent altercations outside the home involving neighbours or individuals from the local community. Although there are some discernible trends regarding motive, most of the reasons that lay behind the recorded episodes of aggression brought before the Justiciary Court were typically idiosyncratic and dependent on personal circumstances and individual attitudes on specific occasions.
Grievances of a more popular nature lay at the heart of the crimes of protest indicted in early modern Scotland. It has already been acknowledged that historically, the Scots were not shy in coming forward about things with which they disagreed. It is clear that on relatively regular occasions this recalcitrance could escalate into criminal activity of one type or another, and could involve both male and female participants. Although it could be argued that there was a diminishing sense of ‘community’ as commercialism occurred over the course of the eighteenth century, there is still incontrovertible evidence of a ‘popular spirit’ rallying in the face of more centralized authority across Scotland during the pre-modern period.
A variety of factors caused Scottish individuals to protest. Commonly, however, popular disturbances related to the imposition of some sort of authoritative change that the public considered unfair or unjust. Offences such as riot, mobbing, tumult, or convocation of the lieges could often result nationwide, in the wake of various pieces of legislation being passed that directly affected the lives of the Scottish populace. The widespread nature of Union riots, malt-tax riots, militia riots, patronage riots, and an assortment of industrial disputes are all good examples of this in the early modern Scottish context.36 Protest could also be more localized in nature and regularly occurred in reaction to perceived unjust practices by local officials. For example, food riots were commonplace across eighteenth-century Scotland in times of dearth, when foodstuffs were forestalled or prices were set at an unreasonable level. A typical example of this occurred at Greenock in Renfrewshire in February 1764. On that occasion David Kerr, Thomas Orr, John Hair, Alexander Boag, Thomas Reid, Robert Hyndman, John Hunter, Elizabeth Harris, Anne Flood, Catherine Bradley, and Margaret Ferguson came together after hearing that grain was being transported out of the harbour to be sold elsewhere, despite the fact that the last harvest had been poor. The court heard that upon learning this news the pannels tore down some of the ship’s rigging and then proceeded to use this material as weaponry by which to assault members of the ship’s crew. Eight crew members were attacked ‘to the great effusion of their blood and the danger of their lives’. One of them lost an eye in the incident, one had his bottom lip torn off, and others found ‘several of their tuith [teeth] to be missing’.37
From the recorded evidence, it is clear that instances of popular disturbance could be violent and injurious. Multiple participants were involved and they were regularly armed with weapons of one sort or another. The aggressive nature of Scottish protest did not particularly escalate or shrink over time, but rather it was relatively consistent and commonplace. The degree of violence used by Scottish rioters was not necessarily anarchic or unrestrained, but was often calculated and measured in order to achieve a specific end. Protest occurred throughout the country during the early modern period, but was more likely to occur in populous areas, where it was easier for like-minded individuals to come together.
At a more local level, another form of protest was the crime labelled the ‘assault of authority’. Usually this was less of a protest against centralized change, and more of a protection measure employed to guard against an arrest or the imposition of a legal sanction such as the payment of excise duty. For instance, at the South Circuit in Ayr in 1765, John Thomson, Robert Thomson, and James Miller were indicted and charged with ‘invading, assaulting, beating and wounding some officers of His Majesty’s Revenue and their assistants’. The court heard that the three men were caught with smuggled liquor on their persons by the excise men. In an attempt to escape, the pannels violently attacked two of the officers with the liquor bottles, breaking the jaw of one of the excise men in the process. In the fracas that then ensued, there was much bloodshed and multiple injuries were received on both sides. Similarly, in 1779 Margaret Tait from Paisley was indicted for an assault on William Gordon, a sheriff officer who had come to deliver an arrest warrant against her husband. Margaret repeatedly hit Gordon over the head with a smoothing iron and while he was unconscious, she stripped him naked, rubbed manure in his hair and over his torso, forced the arrest warrant into his mouth to act like a gag, and then dragged him by the hair to a ditch situated outside her house, where he remained for several days until he was rescued by a passing traveller.38
As can be seen from one of the above examples, women were often involved in this form of protest. Indeed, they narrowly outnumbered their male counterparts in indictments for this offence at the Justiciary Court. The reasons for the enhanced involvement of women in this type of crime remain as yet unclear, but part of the explanation may be that men were more likely to be engaged in work and thus absent from the household when the authority figures came to call. Even if this description is accurate, as the evidence shows, we should not underestimate the strength and determination of Scottish women when faced with the defence of their families and the protection of their livelihoods. Clearly, when provoked, Scottish women were a force to be reckoned with.
The Scots do not appear to be that different from peoples elsewhere, in terms of the range and incidence of the types of criminality they perpetrated. On the whole, serious offences were not commonplace amongst Scottish society, and instead the courts were filled with business that related to more everyday types of violence and petty theft. The recorded evidence does not indicate a substantive change in criminal behaviour between 1700 and 1830. Violent offences occurred at a relatively static rate over the eighteenth century, and although property offences increased during that time, much of this escalation can be explained by a substantive increase in population. In addition, there is little evidence to support the notion of a favoured locus operandi for criminal activity during the early modern period, although over time, the more populous urban areas of the country came to dominate criminal proceedings.39
The explanations that Scottish men and women gave for their participation in criminal activity were individualistic and multifarious, but not particularly unexpected or necessarily revealing. The defence of honour, of reputation, or of livelihood were familiar excuses heard during the proceedings of the Justiciary Court. Moreover, although it could be argued that the Scots were more likely to stand up for their rights than their counterparts elsewhere in Europe during the early modern period, more generally, their criminal motives related to their personal circumstances, rather than any sense of a common grievance or common purpose.
These conclusions should not lead to the impression that Scotland was a timid nation. Although we must remember that this chapter has exclusively analysed crimes that were more serious in nature, the evidence presented here indicates nonetheless that the Scots were not afraid to use violence to achieve their desired ends. As we have seen, both Scottish men and Scottish women were capable of committing brutal, bloodthirsty, and injurious acts on their family, their friends, and their neighbours. Yet their behaviour was not necessarily more violent or barbarous than that of individuals elsewhere in early modern Europe. Moreover, the Scots were more likely to commit an offence against property rather than an offence against a person during the period before 1830.40
The notion of Scotland as a barbarous nation, which came so strongly to the fore in the nineteenth century, appears to be unfounded, at least in an early modern context and based on the evidence presented here.41 Perhaps the idea was first planted by pro-Unionists hungry to exert authority over the ‘chaotic’ and ‘backward’ Scottish populace in the early 1700s? It is more likely, however, that the notion of Scotland as a wayward and unlawful nation derived from within. In Scotland religious influence operated closely with judicial authority in the period before 1850. For instance, ministers from the Kirk Session (Scotland’s ecclesiastical court) not only acted as the upholders of religious observance across the country, but they and the Church elders functioned as a type of public law-enforcement agency prior to the instalment of a professional police system. Kirk-session ministers often interviewed criminal suspects in attempts to extract confessions; they regularly made arrests and turned individuals over to state prosecutors; and they commonly testified in trial proceedings against their own parishioners. Then, in order to justify their actions, the same ministers gave impassioned sermons that decried the widespread wickedness of the Scottish populace. Many of these sermons were published, as were newspaper accounts of court proceedings and broadsides containing the confessions of convicts waiting to be executed. The long reach of this dual level of scrutiny, where the judiciary effectively worked in partnership with the Church, must have gone some way to create and promote the idea of Scotland as a lawless, uncontrollable nation.42
Yet, perhaps this unique context of scrutiny also suggests something else about the nature of Scottish justice between 1700 and 1830. The effect of both religious and legal authorities working together to curb bad behaviour implies that the Scottish criminal-justice system was regularly more intrusive and thus more effective. Although this may have resulted in Scotland attaining a false reputation as a barbarous nation, in reality it suggests that the Scots were proficient at managing criminality in the early modern period. Along with normal criminal investigations, religious surveillance operated on the ground to maximize local cooperation in gleaning information about suspected offences and suspected offenders. Certainly, it is clear from trial papers that parishioners regularly informed on each other under examination. From this, it is difficult to see how criminals would have been able to evade capture in early modern Scotland, and as a result, the level of unrecorded crime may well be lower in a Scottish context compared to elsewhere. This suggests that far from being a barbarous nation, Scotland’s system of justice was more regulated, checked, and effective than its English equivalent. Moreover, if the ability to control personal and individual behaviour successfully is seen as a key marker of a ‘modern’ society, does this evidence not suggest that the Scots were in fact more ‘modern’ and thus more ‘civilized’ than either they or indeed their southern counterparts realized?
Bigwood, Frank, ‘The Courts of Argyll, 1664–1825’, Scottish Archives, 10 (2004), 26–38.
Crowther, Margaret A., ‘Scotland: A Country With No Criminal Record’, Scottish Economic and Social History, 12 (1992), 82–6.
Emsley, Clive, Crime and Society in England, 1750–1900 (London, 1996).
Falconer, J. R. D., ‘Mony Utheris Divars Odious Crymes’: Women, Petty Crime and Power in Later Sixteenth-Century Aberdeen’, Crimes and Misdemeanours: Deviance and the Law in Historical Perspective [SOLON On-line Journal], 4, no. 1 (2010), 7–36.
Kilday, Anne-Marie, ‘Women and Crime’, in Hannah Barker and Elaine Chalus, eds., Women’s History: Britain 1750–1800—An Introduction (Abingdon, 2005), 174–93.
—— Women and Violent Crime in Enlightenment Scotland (Woodbridge, 2007).
Nash, David S., and Kilday, Anne-Marie, Cultures of Shame: Exploring Crime and Morality in Britain 1600–1900 (Basingstoke, 2010).
Ruff, Julius R., Violence in Early Modern Europe 1500–1800 (Cambridge, 2001).
Sharpe, James A., Crime in Early Modern England 1550–1750 (London, 1999).
Whatley, Christopher A., ‘The Union of 1707, Integration and the Scottish Burghs: The Case of the 1720s Food Riots’, Scottish Historical Review, 78 (1999), 192–218.