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.”
Penalties for Immorality.
It was not only overt crimes which came under the jurisdiction of the magistrates; they also took cognizance of conduct and habits which were considered indecent, or which might lead to breaches of the public peace. Thus the ringing of the ten o’clock bell was the call to a general clearance of the streets and alehouses, a notification that the burgh was entering into “the silence of nicht.” It was enacted that “Nae person be fund walking in the nicht season, prevatlie or openlie in the streets or gaits of the burgh, or drinking in ony ale or wine tavern efter ten hours of the nicht, under the pain of forty shillings[[2]] for the first fault, and for the next fault to be banishit; and that nane sell ale or wine to sic persons, under the pain of banishing.”
It was also enacted, “Forsameikle as we know it to be the command of God that there sall nocht be ony drunkards among his people, we therefore ordain that gif ony man be apprehended in drunkenness, he sall pay for the first fault five merks unforgiven, for the second ten merks, and for the third ten pounds, to be taken up by the deacons and distribute to the puir. And gif he will nocht mend, but continue, then the Bailies sall give him ane sys [assize] of neighbours, and gif he beis convictit, he sall be banishit for year and day, and sall nocht be receivit without his open repentance.” Provision is made for inability to pay fines; this is commuted for so many days in “thiefs hol,” and the same act to proceed upon drunken women.
