•A/. £-4- Scs. SHS. 4g PUBLICATIONS OF THE SCOTTISH HISTORY SOCIETY VOLUME XLVIII JUSTICIARY COURT PROCEEDINGS July 1905 V THE RECORDS OF THE PROCEEDINGS OF THE JUSTICIARY COURT EDINBURGH 1661-1678 Edited, with Introduction and Notes, from a MS. in the possession of John W. Weston, Esq., by W. G. SCOTT-MONCRIEFF, F.S.A. SCOT., ADVOCATE and with Additional Notes by the Owner of the Manuscript. VOLUME I. 1661-1669 EDINBURGH Printed at the University Press by T. and A. Constable for the Scottish History Society 1905 CONTENTS INTRODUCTION, PROCEEDINGS OF THE COURT, INDEX, INTRODUCTION It seems to me that a short sketch of the administration of Criminal Law in Scotland in former times would not be out of place by way of introduction to this curious collection of trials now presented to the members of the Scottish History Society. To those acquainted with our modem criminal courts, superior and inferior, with their well-defined jurisdictions and relative position towards each other, there seems something like chaos when their attention is turned to any such criminal record as the one before us. It deals with a period, when, although the Court of Session had been over a century in existence, the Court of Justiciary was still in the future, when mere local authorities possessed powers of startling magnitude, and the interference of the Scottish Privy Council in the administra- tion of justice was a matter of daily occurrence. We know nothing now of justice deputes, of serious crimes being dealt with by municipal magistrates, or of special commissioners being nominated to try particular offences. Again, nothing is better known to us in the present day than our carefully developed system of public prosecution, whether by Crown counsel or by procurator fiscal, a system which works over the whole country, and deals with both small and great offences, and one of which it may be said that we, as Scotsmen, are justly proud. But in the seventeenth century we find, alongside of State prosecutions, private prosecutions, and those at which both public and private interests were represented. From very early times there was in Scotland a high official known as the Justiciar. He represented the king, who, how- viii JUSTICIARY PROCEEDINGS ever, might, and sometimes did, preside personally in a judicial capacity. As this Justiciar, known later as the Justice General, was the depute of the king, so he in turn had deputes who could act throughout the country. Provision was made for eight deputes by the Act 1587, c. 82. Before the establishment of the Court of Session, the Justiciar and his deputes were not confined to criminal matters, their civil jurisdiction, however, being subject to the control of Parlia- ment, which, by means of committees, really performed a con- siderable amount of judicial work, including the decision of what would now be considered small debt causes. For a long period there were two Justiciars, one for the north, the other for the south of Scotland, the river Forth being the dividing line. Edward i., indeed, appointed eight, having made four divisions of the country, and given two to each. In Queen Mary’s time, however, there was a reversion to the old plan of having only one official for both north and south. It was characteristic of our Scottish way of doing things that the office originally conferred upon an individual came to be vested in a great feudal family, and the duties nominally exercised by the representative of that family. This state of matters continued long after the institution of the Court of Justiciary, and indeed down to 1836, when, by statute, the offices of Justice General and that of Lord President of the Court of Session were united in the person of a professional and salaried judge. The deputes appointed to act on behalf of the Justice General were either nominated by him or by the king. We find that Messrs. Colville, Cuninghame, and Mackenzie, all gentlemen mentioned in these Records, held royal commissions; and it would rather appear that those who were in such a position were not limited to acting in the absence of the Justice General, but could sit along with him and exercise equal authority, whereas deputes appointed by him could act only in his absence. INTRODUCTION ix In addition to the judges so appointed, the Privy Council, which was always at hand, and ever ready to interfere, was in the habit of appointing certain assessors to the deputes, with whom, says Hume, ‘ they might advise concerning such diffi- culties as occurred to them : or (shall I rather say) who might acquaint them with the views of his Majesty’s counsellors and secure compliance with their wishes.’ The same writer has in the following passage well described the state of matters which existed at the period when these trials took place: ‘ Under the old system, the Justice and his deputes could hardly be said to maintain their rank as a sovereign or even an independent court of law. On the part of the Privy Council, little scruple was entertained of prevent- ing their jurisdiction or obstructing the channels of their justice, under various pretences and by proceedings of different kinds. Sometimes, and this was the least exceptionable way, in the shape of the trial of the accused before themselves; but in the case of a conviction, remitting him for sentence to the justice, who proceeded on the decree of Council as probatio probata of his guilt. Sometimes (and this, though strictly forbidden by statute, was often done in the case of slaughter and of witchcraft) by granting special commissions of justiciary to private and unskilful and often keen and officious persons for the trial of certain offenders or crimes of a certain class. In other, and frequent instances, in the shape of what was then termed a precognition, being an inquiry, if such it may be called, into the circumstances of the fact, set on foot at the instance of the party accused, and at such a diet as he made choice. And of this proceeding, according to Mackenzie, so manifold were the abuses, that of the many persons who had applied to the Council for precognitions, he had never known one who was brought to justice.’ It was in 1672 that the Act which founded the present Court of Justiciary was passed, the new commission, which that Act ratified, having been issued in January 1671. The most JUSTICIARY PROCEEDINGS important feature of this statute was the abolition of the justice deputes, and the substitution in their place of the Lord Justice Clerk and five of the ordinary Lords of Session. The hereditary Justice General still retained his seat, although he seldom occupied it. But a notorious instance of his appearing, and that for a purpose, is afforded at a much later date than the one we are dealing with. The trial of James Stewart in Aucharn for the murder of Colin Campbell of Glenure in 1752 has been rendered classical by the genius of R. L. Stevenson. The Duke of Argyll, as Justice General, presided upon that occasion, when the scene of trial was Inveraray, and the majority of the jury—judge selected— Campbells. Although there was little but a bare suspicion against the accused, his conviction followed as a matter of course. Argyll added insult to injury by telling Stewart that he had had a most impartial trial. Although the character of the Supreme Criminal Court was distinctly improved by the substitution of regular judges for the deputes, we find a reluctance still exhibited to have a bench quite independent of royal control. The statute of 1672 did not confer office for life, and successive commissions were issued containing the words durante nostro bene placito. In point of fact, judges during the remaining years of Stuart rule were removed and restored at pleasure. It is perhaps fortunate that the local tribunals throughout the country possessed such considerable powers. Because although the new Justiciary Court was enjoined to hold Justice Ayres or circuits, and the towns at which its diets were to be held were fixed, it appears that no circuits took place in Scotland between the end of Charles ii.’s reign and the year 1708. We find cases contained in this Record, tried before a court in Edinburgh, which were brought from different and distant parts of the country. But the justice deputes had also circuit duties to perform, and were expected to attend at least INTRODUCTION xi once a year at the head burghs of the sheriffdoms, where they seem to have been recognised with all the honours now shown to a higher order of judges. The chief, at least nominally, of all the inferior courts was that of the sheriff. This office, like that of the Justiciar or Justice General, had in course of time become patrimonial and hereditary, the duties being performed by deputes. Nor does there seem to have been any provision, until the reign of George n., when heritable jurisdictions were abolished, for the depute sheriff having legal qualifications. Yet the sheriff’s powers were great. He was not only the competent judge in all minor offences, but in the case of a murderer taken red hand, as it was called, he could sentence to death, and did so. Indeed, some great authorities held that the sheriff could try a murderer, so long as the proceedings were concluded within forty days. The magistrates of certain burghs are sheriffs within their royalty, and we find the Lord Provost of Edin- burgh presiding at a trial for murder so lately as 1733.