Scottish Judicial Sentences

Until the early 19th century most punishments meted out by Scottish courts were banishment, death, transportation, monetary fine, corporal punishment, and public humiliation (such as the pillory). In the early 19th century imprisonment for up to four years became a recognised form of punishment, usually for lesser offences such as theft or reset. Punishments awarded by courts in Scotland were termed the ‘sentences competent’.

Death

The most frequent mode of execution in Scotland from medieval times has been death by hanging or strangulation. In most cases of convicted witches burning at the stake was carried out after strangulation in most cases. Burning to death, and other extreme sentences (such as quartering) were very rarely used, usually for traitors or those involved in attempted regicide. Sentence of death was not as frequent as is popularly supposed: in the second half of the 18th century there were about 6 executions per year in the whole of Scotland, and the average dropped in the 19th century. The last public hanging took place in 1868. Under the Capital Punishment Amendment Act 1868, executions were thereafter carried out within prisons.[1] The Murder Act 1751 allowed the use of the bodies of executed murderers to be used for dissection.[2] The Anatomy Act 1832 appointed prisoners convicted of murder to be sentenced either to be hung in chains or buried within the precincts of the prison, but the former was abolished by the Hanging in Chains Act 1834.[3] In the early 19th century death sentences were passed on robbers, forgers, housebreakers and thieves, as well as murderers. The Forgery Act 1837 ended the capital penalty for forgery of official documents and the Punishment of Offences Act 1837 ended it also for certain other crimes.[4] By the end of the 19th century, it had become limited to treason, murder and attempted murder. In August 1963 the last hanging took place in Scotland. The death sentence was abolished in the UK in 1965. [5] Further information can be found in published works, such as Alex F. Young, The Encyclopaedia of Scottish Executions, 1750-1963 (Eric Dobby, 1998) and T. M. Tod, The Scots Black Kalendar – A record of Criminal Trials and Executions in Scotland, 1800-1910 (Munro & Scott, 1938), reprinted as Scottish Crime and Punishment (Lang Syne, 1985).

Banishment

Banishment from a burgh or a specified part of Scotland was a common form of punishment from medieval times until its abolition by the 1830 the Criminal Law (Scotland) Act.[6] Sentences of banishment were sometimes accompanied by whipping, and if the offender returned before the expiry of the period prescribed, he or she could suffer more severe penalties, such as death, imprisonment or whipping.

Transportation

Transportation ‘beyond the seas’, originally to Virginia or Barbados, was a sentence imposed by the Privy Council from at least the mid-17th century. In 1776 American independence ended the use of America as a possible destination for transportees. In 1786 sentences of transportation were resumed, but the destination was now to Australia rather than North America. The first convoy of convicts reached Botany Bay in 1787. Transportation to New South Wales ceased in 1840 and to Western Australia in 1867. Overall, 187,000 convicts were sent to Australia. Convicts who returned to Scotland before the expiration of the term of transportation would be re-transported or even executed.

Penal servitude

The Penal Servitude Act 1853 restricted, but did not abolish, transportation.[7] Penal servitude was instituted as an alternative, and initially meant a period of imprisonment for a period equal to that for which the offender could have been transported. Later it came to mean any period of imprisonment greater than three years.

Imprisonment

By the 19th century imprisonment – the deprivation of liberty – was a recognised form of punishment, although usually for lesser offences. The maximum period, at first four years, was restricted to two years by the Penal Servitude Act 1891.[8] Sentences of imprisonment could be accompanied by recommendations for solitary confinement and limitation of diet to bread and water for periods of time. In the course of the 19th century the addition of hard labour was increasingly used by judges for certain offences. The treadmill, the hand crank and picking oakum were all used in Scottish prisons. The Inebriates Act 1898 provided that habitual drunkards or persons convicted, while under the influence of drink, of offences punishable by imprisonment or penal servitude, might, instead of or in addition to any other sentence, be detained for not more than three years in a state inebriate reformatory. [9] The last remaining inebriate in the State Inebriate Reformatory, Perth, was discharged in October 1924.

Fines

Monetary fines were common for lesser offences such as assaults, petty riots and breaches of the peace, sometimes combined with an award of damages, solatium (damages for injury to feelings) and expenses to the party injured, where he or she had joined in the prosecution. Fines were often accompanied by imprisonment until payment was made or caution (security for the amount) found. In the 19th century a fine could be imposed as the sole penalty or in addition to imprisonment. The Summary Jurisdiction (Scotland) Act 1864 empowered courts to impose sentences of imprisonment for non-payment of fines, rather than ordering recovery of debts through poinding (the taking a debtor’s moveable property) and sale.[10] The act empowered inferior courts to substitute a fine for imprisonment and allow time for payment, which could be made by instalments.

Whipping or scourging

Whipping was a sentence imposed on males and females of all ages, particularly in burghs, from medieval times. It sometimes accompanied a sentence of banishment or, later, transportation or imprisonment. In the 19th century its used was gradually limited. The Whipping Act 1820 provided that females should not be whipped.[11] Under the Whipping Act of 1862 whipping was abolished for offenders over 16 years of age for all but a very few offences and whipping for children under 15 years of age was limited to a maximum of 12 strokes of the birch rod.[12] Whipping was finally abolished as a judicial punishment in 1948.[13]

The pillory and other forms of public humiliation

The most common form of public humiliation as a sentence for offences was the pillory until the Pillory Abolition Act 1836.[14] Other, more brutal, forms of humiliation or mutilation imposed by burghs included criminals having their ears nailed to the tron (the public weighing machine) and/or having the lap of their ears slit or cut away. In kirk sessions, the lowest ecclesiastical court in Scotland after the Reformation, offenders were made to stand in the place of public repentance, usually a stool, during services for a number of Sundays. By the late 18th century fines were more common than public repentance in kirk session cases.

Forfeiture of instruments

Forfeiture of instruments was the confiscation of implements used during an illegal act (for example, a net used in illegal fishing), usually in conjunction with another sentence. Acts empowering this included the Poaching Prevention Act 1862, the Salmon Fisheries (Scotland) Act 1868, and the Herring Fishery (Scotland) Act 1889.[15]

Caution for good behaviour

A prisoner might be required, separately or in addition to imprisonment, to find caution (financial security) for good behaviour for a number of years. Under the Summary Procedure (Scotland) Act 1864 it was limited to six months under penalty of £10 or 30 days’ imprisonment in addition to a fine.[16]

Infamy

Infamy consisted of publicly declaring a convict untrustworthy and debarring him from office, honour or of officiating on any inquest or assize. It was sometimes used in addition to other punishments, especially for offences such as fraudulent bankruptcy.

Probation

The Probation of First Offenders Act 1887 provided that where a person with no previous convictions was convicted of theft or false pretences, or any other offence punishable with not more than two years’ imprisonment, and if it appeared to the court that, having regard to the offender’s youth, character and antecedents, to the trivial nature of the offence and to any extenuating circumstances under which the offence was committed, the court could release the offender on ‘probation of good conduct’. [17] If he failed to observe the conditions he might be apprehended and punished. In addition, the offender might be required to find caution for good behaviour.

Pardon

From medieval times in Scotland the crown sometimes issued ‘writs of favour and reprieve’ but these had disappeared by the late 17th century. After this the crown occasionally granted free pardons. Conditional pardons were more common. The condition might be accepting banishment or transportation, or enlistment in the armed forces, or filling an unpopular post, such as executioner in a burgh. Pardons could be granted before or after conviction. The crown could also grant a respite or delay of execution, for a specified time or indefinitely.

References

[1] Capital Punishment Amendment Act 1868 (31 & 32 Vict. c.24).

[2] Murder Act 1751 (25 Geo II c.37).

[3] Anatomy Act 1832 (2 & 3 Will. IV c.75); Hanging in Chains Act 1834 (4 & 5 Will. IV c.26).

[4] Forgery Act 1837 (1 Vict c.84); Punishment of Offences Act 1837 (1 Vict. c.85).

[5] Murder (Abolition of Death Penalty) Act 1965 (c.71).

[6] Criminal Law (Scotland) Act, 1830 (11 Geo. IV & 1 Will. IV c.37).

[7] Penal Servitude Act 1853 (16 & 17 Vict. c.99).

[8] Penal Servitude Act 1891 (54 & 55 Vict. c.69).

[9] Inebriates Act 1898 (61 & 62 Vict. c.60).

[10] Summary Jurisdiction (Scotland) Act 1864 (27 & 28 Vict. c.53) s.18(5).

[11] Whipping Act 1820 (1 Geo. IV c.57).

[12] Whipping Act 1862 (25 Vict. c.18).

[13] Criminal Justice Act 1948 (11 & 12 Geo. VI c.58) s.2, s.81.

[14] Pillory Abolition Act 1837 (7 Will. IV & 1 Vict. c.23).

[15] Poaching Prevention Act 1862 (25 & 26 Vict. c.114); Salmon Fisheries (Scotland) Act 1868 (31 & 32 Vict. c.123); Herring Fishery (Scotland) Act 1889 (52 & 53 Vict. c.23).

[16] Summary Procedure (Scotland) Act 1864 (27 & 28 Vict. c.53) s.29.

[17] Probation of First Offenders Act 1887 (50 & 51 Vict. c.25).