Footsteps of Dr. Johnson (Scotland)

by George Birkbeck Norman Hill

HEREDITARY JURISDICTIONS.

Up to the year 1747 “in the Highlands,” to quote Johnson’s words, “some great lords had an hereditary jurisdiction over counties, and some chieftains over their own lands.” This subjection of the people to their chiefs was rightly regarded as one of the main sources of the rebellions of 1715 and 1745. He who by law was privileged to keep a pit, a dungeon, and a gallows, was not likely to meet with much resistance when he summoned his people to follow him to the field. Advantage was therefore taken of the defeat of the clansmen at Culloden, “to crush all the Local Courts and to extend the general benefits of equal law to the low and the high, in the deepest recesses and obscurest corners.” The heritable jurisdiction had been divided into regalities, ordinary baronies, and baronies which had the right of pit and gallows.

“The lowest criminal jurisdiction,” says a Scotch legal author, “is what we call for Battery and Bloodwits, viz., Offences whereby a party is beaten, or blood drawn of him, but no greater harm done; and this is implied in all Baronies. But if the erection of the Barony contain a power of Pit and Gallows, it imports a jurisdiction in ordinary capital cases, but not in the excepted crimes, which go under the name of the Four Pleas of the Crown, viz., Murder, Robbery, Rape, and wilful Fire-raising. It is so called from the manner of execution of criminals, viz., by hanging the men upon the Gallows or Gibbet, and drowning the women, sentenced in a capital crime, in a pit, it not being thought decent of old to hang them.”[691]

In old law Latin this right was known under the name of furca et fossa.[692] A person invested with the jurisdiction of a regality had power also in the Four Pleas of the Crown. “The sentences in civil cases are subject to the review of the Lords of Session, and in criminal to the Court of Justiciary. In criminal trials thirty days were allowed before execution of the sentence on this [the southern] side of the Forth, and forty on the other.” From this appeal there was one regality which was exempt. The jurisdiction of the Duke of Argyle was absolute even in cases of life and death. From his sentences there was no appeal.[693] Each barony had its Gallows Hill, and its dempster or hangman.[694] Pennant, in 1772, saw “on a little flat hill near the village of Kilarow in Islay the remains of the gallows.”[695] At Dunvegan men had been hanged on the sentence of the laird, so late as 1740. No doubt this power was sometimes most oppressively exercised. A chief who lived near Inverness was charged with having rid himself at a profit of men on his estate who had given him trouble. He charged them with theft, threatened them with the gallows, and so brought them “to sign a contract for their banishment.” They were then put on board a ship bound to the West Indies, “the master paying so much a head for them.”[696] In other words, they were sold for slaves, if not for life, at all events for a certain number of years.

No change had been made by the Act of Union of 1706, for it was expressly provided in it that all these heritable jurisdictions “should be reserved to the owners as rights and property.”[697] When in 1747 these powers had been swept away, two unhappy classes of men were excepted from the full benefit of the Act. The workers in any kind of mine or in salt-works were to remain as they had hitherto been—serfs for life. These men were found only in the Lowlands, chiefly in the neighbourhood of Edinburgh. Nevertheless, even they were not left altogether without relief. “All jurisdiction in any case inferring the loss of life or demembration, was abrogated.”[698] A collier or a salter therefore could no longer be hanged or drowned, or even mangled by his master. It was not till the last year of the century that they were finally and fully freed. One of these emancipated serfs lived till the year 1844.[699]

The Act of 1747 not only abolished jurisdictions, but also alleviated the prisoner’s lot. Till it was passed, “all over Scotland pits were accounted legal prisons for thieves and other meaner criminals.”[700] Lady Margaret Bellenden in Old Mortality praises her pit. “It is not more than two stories beneath ground,” she says, “so it cannot be unwholesome, especially as I rather believe there is somewhere an opening to the outer air.”[701] But henceforth—so the Act ran—“the prison shall have such windows or grates, as that it may be practicable for any friend of the prisoner to visit, see, and converse with him when he shall be so minded.”[702] In out of the way places, where there were no justices within reach, the laird, no doubt, to some extent, continued to exercise his old powers. Thus in Col, more than sixteen years after the Act was passed, the laird put a woman into “the family prison” for theft.[703] There have been men who regarded, or affected to regard with indignation the abolition of these injurious hereditary powers. “By the nation at large,” writes Dr. Robert Chambers, “the measure was contemplated as a last stab to the independence of Scotland, previously almost destroyed by the Union.”[704] There is happily no reason to believe that the nation at large was at any period of its history a set of sentimental fools.

LOCHBUY BEFORE THE COURT.

To most of the chiefs this loss of their ancient jurisdictions must have come as a terrible shock. Lochbuy, as has been seen, had refused to believe it, and so had got into trouble with the Court of Justiciary. After some search I was fortunate enough to discover a report of his case. He had, as I was informed by his descendant, the present laird, with the help of his piper let down a man into the pit. But here, for once, tradition has not been guilty of amplification. Aided by his servant, his piper and son, the innkeeper in Moy, and two other tenants, he had seized two men of the name of Maclean, and had imprisoned them two days “in an old ruinous castle.” Two of the accused did not appear to the indictment, “they were therefore fugitated (outlawed), and their moveables escheated to the king for their contempt.” The trial took place on August 15, 1759. It lasted twelve hours. “The jury (of which a majority was landed gentlemen) returned their verdict unanimously, finding the pannels (prisoners at the bar) guilty; but verbally recommending the four servants and tenants to the mercy of the court, it appearing that what they did was by order of Lochbuy, their master. The lords pronounced sentence, decerning Lochbuy in £180 sterling of expenses and damages to the private prosecutors, and 500 marks Scots (about £27) of fine; and condemning the whole pannels to seventeen days’ imprisonment.”[705]

Lochbuy had no doubt been the more unwilling to believe in the abolition of his jurisdiction as he had, it should seem, no share in that “valuable consideration in money which was granted to every nobleman and petty baron who was thus deprived of one part of his inheritance.”[706] On what principle of justice this compensation was given is not clear, unless we agree with Johnson in his assertion that “those who have long enjoyed dignity and power ought not to lose it without some equivalent.”[707] Professor Thorold Rogers informs me that we have here, he believes, the first instance in our history where compensation is paid by the country at large for the vested interests of a class. The claims which were made were excessive, partly no doubt in the hope that when much was demanded at all events something would be given, but partly, it was said, with the intention of “obstructing the Act, and raising discontents in the country.”[708] The total sum asked for was £587,000, but only £152,000 was granted. Among the claimants I found “Maclean of Lochbuie, Bailie of the Bailiery of Morovis and Mulerois, £500.” His name does not appear among the list of those whose claims were allowed.[709]

LOCHBUY CASTLE.