Some Old Scottish Criminal Law

Abstract

The ponderous Folios of The Acts of the Parliaments of Scotland, printed by Royal Command in 1844 are a perfect mine of information concerning Scotland in early times, whether to the philologist seeking information as to the Scottish language, the economist, as to the condition economically, the theologian, as to the course of religious thought-not least so, the student of the history of law. The purpose of this paper is to gather some idea of the provisions of the early Statutes-or what corresponded to Statutes-in early Scotland in respect of certain criminal offences; and I shall not quote from any but the first volume, before the Parliament at Perth of James I, in 1424 (contemporary with Henry VI of England). First, it is to be noted that great care was had that when a man was sentenced to be hanged, he was hanged-there was no Court of Appeal, and the executioner was held to his duty. We find in the first Titule of the lawes of the Kyng David (1124-1153) Of hym yat eschapis ye wallowys. Gif ony mysdoer thruch dome be hingit and eftirwart he eschapis of ye gallowys he sal be quyt as of yat deid fra yin furth And yai yat hingit him sal mak fine wyth ye Kyng safifeud yaim lyf and memberis and disherisone for quhi yat trespas is mekil and oure mesur. (I, following the usual practice, employ y for the old letter indicating our th.) Translating-If any misdoer through judgment be hanged, and afterwards he escapes off the gallows, he shall be quit as of that deed from thence forth And they that hanged him shall make fine with the king, saving life and members, and disherison, because that trespass is great and beyond measure. The Scot did not believe in half-hanging, which we read of in English and Irish Criminal Ana: and one is reminded of the story of Sir Henry Maule, who when a Bishop claimed greater power than he had, because, said the Prelate, say 'You be hanged,' while I can say 'You be damned', replied Yes, but when I say 'You be hanged,' you are hanged. The gallows was a very favorite punishment in those days; but it was not in all cases inevitable-for example, in Tit. XIII of the Assise of King William, it is provided (I translate) Concerning 'Berthynsak,' that is to say, the theft of a calf or of a ram or as much as one can