Offences and their Punishment in the Sixteenth Century.
The century which included the Reformation, and the long minorities of three sovereigns,—James V., his daughter Mary, and her son, James VI.,—all periods of strife and unsettledness, was for Scotland, governmentally and politically, a turbulent one. The state was often in confusion; but the burghs were little states, acting by their own laws, under properly constituted magistrates.
The oldest records of the Burgh Court of Dundee which have been preserved commence in 1550, and extend to 1568. These, with other old records, have recently been carefully examined, and many portions transcribed, by Mr. Alexander Maxwell, F.S.A. Scot., and they form the ground-work for his two interesting volumes on Old Dundee. With the author’s kind permission, we make several extracts, illustrative of the social history of the period, so far as this is brought into view by the matters which came before the Burgh Court. These records may be fairly taken as a sample of the then condition, as respects crime, of the whole of Scotland.
And three things will be in evidence from these records:—
1. That this was really a Court of Justice; patient consideration given, as a rule, to the cases which came before it; and although some of the punishments may seem severe, and others rather ridiculous, yet on the whole the spirit was paternal, corrective, and peace-making. The penalties inflicted were all on the supposition that the offenders had still a sense of shame left, and that to have the good opinion of their fellows was an incentive to well doing.
2. That considering the unsettled condition of the country, there was not an abnormal amount of disorder and crime. Whisky, that curse of Scotland in later years, had not come into use, and there was no excessive ale and wine drinking. Theft was not common.
3. That a main point with the burgh authorities was to get locally rid of their incorrigibles; leaving neighbouring towns and the country districts to take care of themselves.
That ever unruly member, the tongue, gave a good deal of trouble:—
Reche Crag, baker, being warned that his bread was under weight, charged the officer with using false weights to weigh his bread with, for which insult “he is ordainit to come to the church on Sunday next in the time of high mass to there offer a candle of a pound of wax, to ask the officer’s forgiveness, and say, That the word was false he said.” James Denman, having “blasphemed” a notary, has to ask his forgiveness, and to pay to the master of the Hospital twenty shillings to be given to the poor,—“and gif he be again apprehendit with the like, to be banishit the burgh a year and a day.”
John Robertson and his wife had slandered Katrine Butcher. John sung very small in Court,—“revokit his allegance as nocht of veritie, and he knows nocht of Katrine but honour.” John’s wife appears to have first uttered the slander in “flyting,” and she and he were “adjudgit to come instantly to the Mercat Cross, and there ask Katrine’s forgiveness upon their knees: and gif the wife be funden by day or nicht blasphemin any man or woman, she will be banishit the burgh.”
For “wrangeous mispersoning of Will Gibson’s wife, Jonet Crag is ordainit to pass to the Mercat Cross, and on her knees, with the beads about her neck to say ‘My tongue leeit,’ and pass with the beads about the town.” The tolbooth “beads” were derisively hung on the neck of a termagant, whilst she made a promenade through the burgh. Poor husbands had to bear the brunt of their wives’ characters. William Rannald, being about to leave the burgh, “the Council decernit that nae testimonial be given to him; but if he labours for ane, that it be made conform to his wife’s demerits, and specify wherefore she was banishit this burgh for ever.”
Besse Spens is admonished “that gif she be found flyting with ony neighbour, man or wife, and specially agains Jonet Arthe, she shall be put on the cuck-stule, and sit there twenty-four hours.” This cuck-stule had just been put up in an open position beside the Market Cross. To be set up to public derision in this chair was the height of ignominy.
Whilst in these comparatively rude times women’s tongues often wagged fiercely against each other, men’s wranglings would end in blows. Charly Baxter “sall give to Robert Nicholson, for the hurting of him, forty shillings, but as Robert was also to blame, he sall pay the leech [surgeon] himself. And gif ony of them maks ony stroublance till other in time to come, to pay a stane of wax to Our Lady.” So long as the old Church held sway, fines were generally in candles for lighting St. Mary’s altar.
The stocks now and again come into the record. For “stroublance of Patte Baxter, Jok Galloway is ordainit to come on Sunday next with a candle of a pund of wax, efter to be given to Our Lady licht, and ask the Bailies and Patte’s forgiveness. And gif he will nocht do this, to lie the nicht in the stocks, and ask Patte’s forgiveness the morn at the Mercat Cross.” Nichol Anderson “is decernit to lie twenty-four hours in the stocks, for stroubling of this gude town and wounding of ane stranger, because he has nocht to pay the leech.”
When Rob Dawson “stroublit” Wille Pangell, “he is ordainit to pay the leech for his craft of healing Wille’s head breaking, and give Wille twelve pence ilk day that the leech may depone that he may nocht gudely lawbour through the hurt.” “Henry Justice is ordained to cause cure Margret Leischman’s head, broken by him within silence of the nicht.” It was an aggravation of an offence that it was committed at night. Allan Sowtar being charged by Besse Spens for the “stroublance of her and her house, under silence of the nicht, he is amerciate [punished by fine] for the trouble done to this gude town, an if he be founden committing sic fault again, nicht-walking and making trouble, that he be banishit.”
THE STOCKS, FROM THE CANONGATE TOLBOOTH.
(Now in the Scottish Antiquarian Museum.)
The sentences on a brawl in the churchyard, in September, 1554, are notable as being the last in the record where the fines were in the shape of offerings on the high altar of St. Mary’s Church. Fines where they were not given as a solatium to the injured persons, were generally applied to aid “puir folks.” And punishments were as a rule inflicted summarily; lengthy imprisonments, taking the persons away from their ordinary occupations and maintaining them by the labours of others, are quite a modern invention.
The vehemence of an outrageous fisherman is quenched in his own element. “George Blak, boatman, is discernit to be doukit owr the head in the sea, and also to pay forty shillings to the common gude for that he keist Fothringham, ane workman, our the shore [pier], and also struck Andro Cowtie, ane other of them, upon the face.” A worthless fellow is awarded the punishment of a woman: “Sande Hay, for troublance made upon Andro Watson, is discernit for his demerits to be put in the cuck-stule, there to remain until four hours efter noon.”
This is how an objectionable couple is got rid of: “Alexr Clerke and Elesabeth Stevenson,[[1]] being banishit this burgh for their demerits, pykerie, and reset, and grite sumptuous spending by nicht, has contemptuously come to the town, contrair to the statutes; whairfore they are adjudgit—Sande to be nailit to the tron by the ear, and Elesabeth brunt upon the check, and they be again banishit for all the days of their life. And gif ever they be fund within this burgh, or ony of them, to be put to deith.”
Nice distinctions were made in the comparative guilt of accomplices: Watte Firsell and Duncan Robertson are found guilty of “common pickery of ane puir woman within silence of the nicht,” and the sentence is,—“That Duncan sall scurge Watte round about within the bounds of this burgh, as use is; and gif he fails in the extreme punishment of Watte, then Climas sall scurge them baith, in his maist extreme manner. And thereafter Watte to be had to the Cross, and, by open proclamation, banishit this burgh for seven years.” Climas was probably the burgh hangman, for the Court assumed powers of life and death. John Wilson has, for diverse reasons, been “warded” within the burgh: “Gif he beis funden passing out of this town, without licence of the Provost or Bailies, to be put to deith without forder proof.” In another case the manner of threatened death is specified: “The assize hes convict Agnes Robertson for theftuously committing of pykrie—whilk she could nocht deny, being apprehendit with her—and siclyke, hes convict Jonett Moreis for reset thereof. And thairfore the Bailies ordain Agnes to be banishit this burgh for all the days of her life, and never to be apprehendit within the same, under the pain of drowning. And siclyke Jonett to be banishit for year and day, and gif she be apprehendit within the burgh before the said day, to suffer deith as said is.”
Generally in cases of theft, and where there were no aggravating circumstances, justice was satisfied by simple restitution or compensation.
John Cathro is relieved from the charge of carrying away the iron band of Will Cathro’s door by his offer to make a new band “as gude as it was at first.” John shortly after comes up again “for the wrangous taking of five lilies out of John Gagy’s harth, and is ordainit to put in five fresh lillies again.” A gleaner who has been helping herself to corn from a farmer’s stooks, only has the blanket seized in which she carried it. When there were aggravating circumstances theft was punished by flogging.
“Vehement suspicion,” without direct proof, was sometimes held to justify punishment. “James Richardson, tailzour, being accusit of pickrie, is adjudgit to be punishit with twelve straiks with ane double belt, because there could be nae sufficient proof gotten, but vehement suspicion, and syne to be banishit this burgh for year and day.” Another tailor is, however, able to prove his honesty. Sande Loke is accused by Jonet Sands, of keeping back some of the cloth that should have gone into her kirtle. The kirtle was produced, and Sande ripped open the seams, and laid it upon “ten quarters of new claith of like breid, and it was found to be nocht minished by the craftsman.”
The habit of wearing swords, or “whingers,” as they are called, was a fertile cause of quarrelling and personal injury. Sometimes offenders were degraded by being for a time prohibited from wearing swords: thus, William Fyf and James Richardson are, after an encounter, “convict for troublance of this burgh by invading ilk other with wapins; William is discernit to pay the barbour whilk heals James’ arm, stricken by him with ane whinger; and baith are forbidden to wear whingers for the space of ane year, or to invade other by word or deed in time coming, under the pain of banishing the party whilk sall be found culpable.”
John Anderson “is decernit to pay to the common gude, the soum of five pounds for his unlaw in breaking of the acts, by drawing of ane whinger and invading of Archibald Kyd for his bodily harm, publicly in open mercat; and he sall pass to the place where he offendit Archibald, and, upon his knees, desire of him forgiveness. And his whinger is to be taken from him, and put in the cuck-stule.” Jonkyn Davidson “hurt and woundit John Jack in his body, with ane whinger, to the effusion of his blude in grite quantitie.” The Bailies for amends “decernit that, upon Saturday next Jonkyn sall come to the Mercat Cross in his sark alane, his head discoverit, and, upon his knees, take his whinger by the point and deliver the same to John; and thereafter the officer sall affix it in the place whair the whingers of those are affixit that commit tulzie within the burgh. And Jonkyn sall ask mercy and forgiveness at John, for God’s sake, for his crime; and then sall act himself to be true friend to John, and sall never hear nor see his hurt nor skaith, but will tak part with him in all lawful things; and sal never draw a whinger hereafter, on ony inhabitant, under the pain of banishing this burgh for ever.” Furthermore he becomes bound to pay John by instalments the sum of one hundred pounds. On the day named, Jonkyn, at the Market Cross, made the prescribed atonement, “and then John receivit him in favour, embracit him in his arms, and forgave him the crime.”