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.”
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.
REPENTANCE-STOOL, FROM OLD GREYFRIARS’ CHURCH.
And again, “That gif ony men or women be notit as common blasphemers of the holy name of God, the Bailies sall give them ane sys of neighbours; and gif they be convicted of it, they sall be usit samen as drunkards, quhidder they be rich or puir.” But a more summary system than that of assize was also adopted. “Quhasover is apprehendit banning, execrating, swearing, or blaspheming openly, sall be taen incontinent and put an hour in the choks.” This instrument of punishment was furnished with a gag which entered the mouth; and besides the one for public offenders, the citizens were “ordainit” to keep in readiness their own “choks for correcting of the banners and swearers in their awn domestic houses.”
THE JOUGS, AT DUDDINGSTON, NEAR EDINBURGH.
It is ordered that keepers of houses of ill-fame, “sall dispatch themselves off the town, or else amend, and leave sic vicious manner of leiving; for gif they be apprehendit therewith in time coming, they sall be openly banishit at the Mercat Croce.” Unchaste conduct met with severe reprobation. Men and women were “for the first fault to be admonishit by the preachers to forbear, and to shaw their open repentance publicly in presence of the haill congregation, and so forbear in time coming. But gif he and she be again apprehendit in the same fault, they sall stand three hours in the gyves, and be thrice doukit in the sea, and gif that punishment serves nocht for amendment, they sall be banishit for ever.” But the life of a coming child was not to be endangered in punishing an unchaste woman; it was enacted that, under such circumstances, “the woman, of what estate so ever she be, sall be brocht to the Mercat Croce openly, and there her hair sall be cuttit of, and the same nailit upon the cuck-stool, and she make her public repentance in the Kirk.”
Exposing offenders to popular derision was a common mode of punishment in Scotland. The stocks and the cuck-stool in the market-place, and the stool-of-repentance in the church, were all used on the supposition that the evildoer had still shame and a wholesome dread of the finger of scorn lingering in the heart. The jougs—a hinged iron band for the neck, attached by a chain to the market cross, the gate-post of the parish church, or the tolbooth, a tree, or other wise—were a common institution. The offence of the culprit would be placarded in bold characters and very plain terms on his or her breast, or overhead.
Still drawing upon Mr. Alex. Maxwell’s researches amongst the municipal records of Dundee in the middle years of the sixteenth century, we learn that the Town Council, finding that much confusion arose from the improvidence of many of the citizens in not making testamentary dispositions of their effects, it was ordained: “that there sall be twa honest men—responsal, famous and godlie—chosen by the general consent of the haill estates of the town, and power given to them to pass—quhidder they be requyrit or nocht—to visit man or woman in peril of death; and they sall enquire at the sick gif they will mak ane testament, and gif they consent, then the visitors sall despatch and put out of the house all manner of man, and woman, and bairn, except such honest and sober persons as the sick sall desire to be present as witnesses; and the devyse and legacy then made by the sick person to be registrat authentically in the buiks of the visitors, who after the decease of the person testit as said is, sall see the dead’s will fulfillit.”
The dress worn by burgesses and others was required by law to be suited to the degree of the wearer. In the fifteenth century, Parliament ordained “anent the commons, that nae lauborars nor husbandmen wear on the week day any clothes but gray and quhite, and on haliday licht blue, and green or red; and their wifis corresponding, with curches of their awn making, the stuff nocht to exceed the price of forty pennies the ell. And that nae men within burgh that live by merchandise, unless they be in dignity as Bailie, or gude worthy man of the Council, shall wear claiths of silks, nor costly scarlett gowns, nor furrings; and that they make their wifis and dochters in like manner to dress becomingly, and corresponding to their estate; on their heids short curches, with little hudis, as are usit in England; and as to their gowns, that nae woman wear costly furs, nor have tails of unsuiting length, but on the haliday: and that no woman come to the kirk or market with her face coverit, that she may not be kend.” By another act, in 1567, it was ordered “that nae women wear dress abone their estait, except——.” The word we omit is spelled in the original the same as that which designates the nymphs in the Mahometan paradise.