This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Justice and Society in Strathspey: The Regality Court of Grant, c. 1690-1748. Charles Fletcher Ph.D. Law The University of Edinburgh 2019 Declaration I declare that this thesis has been composed by me and all work herein is my own, except where explicitly stated otherwise and that this text has not been submitted for any other degree or professional qualification. Any use of the material in this thesis must be properly acknowledged. Charles Fletcher 17 January 2020 ii Figure 1. Map of Strathspey (National Libraries of Scotland) iii Lay Summary In the seventeenth and eighteenth centuries the burden of administering justice in Scotland was borne by both the state and private landowners throughout the Highlands and Lowlands. The landowners’ rights of jurisdiction, known as heritable jurisdictions, largely fell into the category of baron courts and the more prestigious regalities. Many of these courts were abolished by reforms to the legal system effected in 1748 in response to the Jacobite rising of 1745. This thesis investigates the work of the regality court pertaining to the laird of Grant in Strathspey, in the Highlands, during the half-century preceding its abolition. It finds that this court provided a useful local service, giving convenient access to the legal system and its protections to those who lived in The Grant’s demesne and who were without convenient access to the royal courts. The thesis shows how The Grant’s regality court played an important role in the everyday life of the rural communities in Strathspey. In this court criminal and civil suits were routinely handled, instigated by litigants drawn from all levels of society. The court was also concerned with the economic and social management of the district of Strathspey, its people, woodlands, farming and rural industry. In many respects it was a vital part of local government, working with other bodies such as the kirk sessions, before modern centralised government was effective throughout Scotland. Based on this evidence a central argument of the thesis is that the disappearance of courts such as the regality of Grant throughout Scotland, may initially have been detrimental to the execution of justice, administration and government in the localities. Heritable justice was closely linked to the clan system in the Highlands. This thesis also discusses the importance of heritable jurisdictions to the clan Grant and the management of clan society in Strathspey. iv Abstract Prior to the abolition of heritable jurisdictions in 1748 much of Scotland’s judicial business was handled by courts of barony and regality. Historians have debated the importance of these franchise courts in the everyday administration of the law in Scotland during the eighteenth century; however, no detailed studies of these courts have been undertaken for this period. This thesis explores the work of heritable jurisdictions through a case study of the regality of Grant and its constituent baronies in Strathspey from 1690 to 1748. In doing so this thesis contributes to debates in the legal, social and economic history of Scotland along with Highland history. The thesis’ main findings are that the baron and regality courts played an important role in rural communities such as Strathspey, where they provided an important local utility, offering legal safeguards and local access to the legal system which was valued by all classes of people. The thesis begins by defining the court’s importance in the context of clan society. Following this there is a discussion of the court’s officials and procedures. Thereafter the thesis considers the main areas of the regality’s jurisdiction, allowing for an analysis of the functions performed by a regality court in the Highlands in the early eighteenth century. The thesis demonstrates that the regality of Grant was actively concerned not only with criminal and civil suits but also economic policy, social control, local government and the administration of a landed estate. The jurisdiction of the regality of Grant is shown to be little different from that of a barony. Many historians have held that franchise courts were anachronistic and generally in decline prior to 1748, this thesis disputes these assumptions. Evidence from the v Grant court books, supported by material from the Seafield muniments, shows that courts of barony and regality fulfilled important social functions. Peasants, gentry and the laird all used the court to their own advantage and in turn contributed to a vibrant local legal culture. The thesis concludes by arguing that abolition of these jurisdictions was not necessarily advantageous for the people of the Highlands as the courts’ social functions still needed to be performed after 1748. vi Table of Contents i. List of Tables and Figures………....………………..…………………………xi ii. Conventions and Abbreviations……………….…………………….………..xii iii. Glossary………………...…………….……….………………….…...……….xiii 1. Introduction…………………...…….………..………………….…………..1 1.1 Heritable Justice in Scotland…………….……...…………………………….1 1.2 The Regality of Grant ………………….…………..……………………….16 1.3 Methodology………………………...……………………………………....22 1.4 Chapter Structure…………………………...……………………………… 25 2. The Clan Grant and the Regality Court…………....…………………….29 2.1 The Clan Grant and Strathspey……………………………………………...29 2.2 The Laird, the fine and the Regality Court………………………………….36 2.2.1 The Lairds of Grant………………………...…………..…………..36 2.2.2 Bailies of the Regality of Grant………...……………….…………41 2.2.3 The fine and the Regality Court: A Case Study of John Grant of Dalrachney………………………………………………………………47 2.3 Conclusion …………..……………………………………………………..57 3. Court Procedure ……………………………….……………….…………61 3.1 Court Personnel…………..…………………………….………….………..61 3.1.1 Clerks of the Court……………………………………...…………..61 vii 3.1.2 Procurators Fiscal……………………………………………...……65 3.1.3 Court Officers…………………………………………..…………...67 3.1.4 Birlawmen…………………………………………………..………69 3.2 How, why and when were courts convened?.................................................71 3.2.1 How and when?..................................................................................71 3.2.2 Where?................................................................................................75 3.3 The Court Day……..……………………………………………..…..……..79 4. Actions for Debt……………….………………………………….………..93 4.1 Debt and Credit in Strathspey……………………………...…………….….93 4.2 The Collection of Rent…………………...………………..…… …………106 4.3 Poinding………………………………...……………………………….…112 4.4 Debt and Divisions in the Grant Family……..…………………………….117 4.4.1 Rental Crisis……………………………………………...………..117 4.4.2 Case Study: Grant of Mullochard v. Grant of Grant………………119 4.5 Conclusion…………………………………………………………………129 5. Criminal Jurisdiction …………… …..………………………………….133 5.1 Violent Crime………………………………..……………………………..135 5.1.1 Trends in Violent Crime……………………………………………136 5.1.2 Gendered Differences in Violence……….…………………………141 5.1.3 Types of Violence…………………………………………………..143 5.1.4 Process…………………...…………………………………………149 5.1.5 Punishment………………………...………………………………..152 viii 5.2 Serious Crime and the Regality Court of Grant……………………………154 5.3 The Regality of Grant and the Northern Circuit of the High Court of Justiciary…………………………………………………………………...165 5.3.1 1708-1711……………………………………………………….…165 5.3.2 1711-1748………………………………………………………….170 5.3.3 After 1748………………...….…………………………………….174 5.4 Conclusion ……………………………………………………………….175 6. Economic and Social Control ………………………..………..……….179 6.1 Economic Control……………………………….……………………….180 6.1.1 Food Supplies…………………….…………………….……….182 6.1.2 Regulation of Employment …………………………………….186 6.1.3 The Regality Court and the Justices of the Peace…....…………198 6.2 The Regality Court and the Kirk Sessions……………………………….201 6.2.1 People…………………………......……………………………203 6.2.2 Kirk Session Business and the Regality of Grant………………205 6.2.3 Slander……………………………...…………………………..218 6.2.4 Funding the Kirk ……………………………………………….223 6.3 Local Government: Conclusion………………………………………….226 7. The Landed Estate: Woodlands, Game, Farming and Improvement...229 7.1 Protecting the Lairds’ Woodland…………....…………………………….230 7.1.1 …………Woodlands and their Management in Eighteenth Century Strathspey……………………………………………230 7.1.2 The Regality Court and the Woods……………...……………..239 ix 7.2 Game……………………………………………………………………..250 7.2.1 Hunting, Fishing and Game in the Regality of Grant……….…250 7.2.2 Poaching Cases in the Regality of Grant…..……………..……254 7.3 Improvement and Farming……….………………………………………259 7.3.1 Pastoral Farming……….………………………………………….260 7.4 Improvement and Conclusion……………………………………………268 8. Land Tenure…………………………………….………………………271 8.1 Tacks and Tenure………………………………………………………….271 8.2 Labour Services……………………..……………………………………281 8.3 Conclusion………………………………………………..………………289