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f OF.lTI-iB! i i lci lyoz-l^^'si TIIIUU: ;!SiE jRLl-E! S;i il ij1: i ■ [ti^SCXiTL^bj ^Cotfisfo ^ iiBtor^ S3 oc iissJfc w ScS. ( ^ OF SCOTLAND ^ B U R<5^i»'y PUBLICATIONS OF THE SCOTTISH HISTORY SOCIETY THIRD SERIES VOLUME XVII THE MINUTES OF THE JUSTICES OF THE PEACE FOR LANARKSHIRE 1931 < THE MINUTES OF THE JUSTICES OF THE PEACE FOR LANARKSHIRE 1707-1723 Transcribed and Edited by CHARLES A. MALCOLM, M.A., Ph.D. LIBRARIAN; LIBRARY OF THE SOCIETY OF SOLICITORS IN THE SUPREME COURTS OF SCOTLAND, EDINBURGH EDINBURGH Printed at the University Press by T. and A. Constable Ltd. for the Scottish History Society 1931 Printed in Great Brit< PREFACE The manuscript book, now in the National Library of Scotland, which forms the substance of this volume, is a small folio, measuring twelve inches by eight, with parch- ment cover, now wrinkled and brown from age and ex- posure. The two leather tags which long held it closed are gone except for tiny fragments. Of its one hundred and thirty pages one hundred and fifteen are in the handwriting of three different clerks, who follow in several respects the ways of their seven- teenth-century predecessors. His is still used in place of the 's; there are the letters e, r and s, of the older cursive forms; saids before a plural; samen for same; as said is, for as already stated; absents for absentees. There are some good specimens of old Scots words in fials, for wages ; gruiffe, for lying flat on the ground ; girnel for granary ; invade for attack ; mae for more ; meinzie for persons of a household ; ryot for assault; ratihabitione for approval, or sanction ; widow for widower. The expression horse pack or load meant two bolls, and the term lot and proffe, denoting the twenty-fifth part of the grain thrashed out by a thresher, which was his wages, is not in Jamieson’s Dictionary. The tasker, for thresher, is centuries old for a pieceworker. In the preparation of this volume I have had the kind assistance of many authorities. To the clerks of the Justiciary Office, Edinburgh, the Sheriff Clerk of Stirling, and the Clerks of the Peace in Scotland, especially of Edin- burgh and Midlothian, I return thanks for granting access vi MINUTES OF JUSTICES FOR LANARKSHIRE to records. I am deeply indebted to Sheriff J. R. N. Macphail, K.C., and Professor D. Oswald Dykes, K.C., for their helpful suggestions and their care in reading the proof sheets, and to my brother, Mr. Peter Malcolm, M.A., who, in addition to similar services, collated the text and identi- fied many of the places mentioned in the Minutes. I have also to thank Mr. James C. Corson, M.A., Edinburgh University Library, for his assistance in checking the authorities cited and for compiling the Index. C. A. M. CONTENTS PREFACE PA°v INTRODUCTION— The Early History of the Justice of the Peace in Scotland ....... ix The Justices of the Peace for Lanarkshire, 1707- 1723 ....... xxviii Master and Servant ...... xli Constables: Crimes ...... xlvi Forestalling and Regrating .... liii Sabbath Profanation ...... liv Customs and Excise ...... Ivii Highways ....... lx Bridges and Ferries ...... Ixx Enclosing of Lands ...... Ixxv Conclusion ....... Ixxvi Appendix A: Commission and Proclamation naming Justices of the Peace within Scotland . Ixxix Appendix B: List of the Counties of Scotland, with the dates of their earhest extant Minutes of the Justices of the Peace .... Ixxxii MINUTES 1 INDEX ....... 235 INTRODUCTION The Early History of the Justice of the Peace in Scotland The Justice of the Peace had been established for almost three centuries in England when James vi. conceived the idea of introducing him into Scotland. His first experi- ment was the Act of 1587,1 which provided for an estab- lishment of ‘ honourable and worthie persons of honest fame . earls, lords, barons, knights, and special gentil- men landit, experimentit in the lovable laws and customs of the realme ... as King’s commissioners and justices in the furtherance of justice, peace and quietness . together with four of the Council of every burgh within the self2 . givand ... to them full power to tak inquisition and mak dittay 3 ... of all persons suspectit culpable of the crimes and defaults contenit in the table to be made to the Treasurer, Justice Clerk and Advocate.’ The number of Justices for each shire was fixed, fourteen being allotted to Lanarkshire, and they were to meet in the Tolbooth of the head burgh of the shire four times each year—on the 1st of May,4 August, November and February. There is no evidence to show that this measure was ever put into operation ; it would be surprising if it had been. The king had not then mastered the details of the English system. There the Justices were not hampered by private 1 Ads of the Parliament of Scotland, Record Series (hereinafter cited as A.P.S.),2 iii. 459. 8 1 Justices for the burgh alone. mak dittay=indict. Until 1600 the calendar year in Scotland began on March 25. b lx x MINUTES OF JUSTICES FOR LANARKSHIRE jurisdictions as the Scottish Justices were. ‘ The great hindrance to the execution of our laws,’ wrote James, was ‘ the great men in possession of heritable jurisdictions and regalities.’ These he would punish, when found guilty of negligence and ‘ sloth,’ by depriving them of their privi- leges ; and he would draw the laws of Scotland to the ‘laudable custom of England.’1 Six years after his accession to the throne of England James sought to realise his dreams by the operation of his famous Act of 1609,2 to ‘ exterminate that abominable pest of deadlie feedis . which the sloth of magistrates had not supprest . .’by empowering Justices of the Peace, appointed every year in every shire, from ‘ godlie, wise and vertuous gentil-men of gude qualitie, moyen and report. to keep his majestie’s peace . .’ by binding such evil- doers to keep the peace and presenting them before the Justice or the Lords of Secret Council.3 Appointments were then made by the king and his Council. Those who were nominated were all members of notable families and included provosts and bailies of royal burghs.4 In each shire one of the Justices was appointed keeper of the Rolls, and he had to appoint a clerk.5 Eager to see his great scheme in operation the king sent out in rapid succession instructions, letters and admoni- tions, supplemented by orders and with advice to those who had been appointed conveners or keepers of the Rolls as to the treatment proper for breakers of the peace.6 From Westminster he writes to each convener a long letter in Latin, exhorting them to examine on oath all upright men concerning . felonies . according to the laws of England ! . while, appended, are the form of the 1 2 Basilikon Dorm (1616 edn.), bk. II., 163. A.P.S. iv. 434- ® Register of the Privy Council of Scotland, 4Record Series (hereinafter cited as 6R.P.C ), and Series, viii. 297. 6 R.P.C. ix. 75-80. Ibid. (2nd Series), viii. 298. Ibid. viii. 297-298. INTRODUCTION xi oath de fideli and that of the king’s supremacy in matters temporal and spiritual.1 In the same month the Privy Council issued instructions for dealing with riots and impending riots, of which the Council were first to be informed. Express orders were issued to imprison all unauthorised wearers of arms, and to place in the stocks idle, strong vagabonds and beggars. Anxious to omit nothing that would promote the success of the system, the Council gave directions to the Justices to meet in the Tolbooth of the head burgh of their shire and impressed on the conveners the necessity of showing the list of ‘ Instructions ’ to each of their colleagues.2 In their civil domain the Justices were to be ‘ careful concerning the upholding and repairing of the briggis that ar not utterly ruined, that some course may be taken by the countrey next adjacent to give supply for that matter.’ When the Justices ascertained the ‘ countrey’s ’ 3 willing- ness to contribute, the Privy Council were to be apprised and their approval obtained. The Justices were also to keep the highways in good order for carriages and pas- sengers, and to report to the Council all who, having lands adjoining, ventured to encroach on the highway. Good inns for travellers were another necessity, but the Justices could only suggest to the Privy Council their opinion. Unable to effect any improvements in these departments, the newly appointed Justices of the Peace had aroused the anger or the envy of the privileged barons. Reports of the obstacles which many of these magnates 4 had placed in the path of the struggling Justices reached His Majesty, 1 3 R.P.C. (2nd Series), viii. 300-302. * Ibid. ix. 696-697. 1 Countrey = the people of the parish. Henry Stewart and others in Orkney, who disobeyed an order of the Justices of the Peace, were ordered by the Privy Council to be warded in Edinburgh Tolbooth (1610, R.P.C. ix. 91-92). The Justices for Selkirkshire reportedI in 1611 that their ‘chief hindrance was the burgh of Selkirk’ {Ibid ix. 7 4)- The Magistrates of Linlithgow refused to appear before the Justices of that shire in order to take the oath of allegiance {Ibid. ix. 399). xii MINUTES OF JUSTICES FOR LANARKSHIRE who ordered the Lord Advocate to raise summonses against such ‘ usurpers of our authority and hinderers of our service, either before the Justice or the Lords of our Secret Council,’ and to have them punished.

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