Law and order in Stirlingshire, 1637-1747

Abstract

Scotland in the early modern period was an overwhelmingly rural society, made of largely self-sufficient communities based on the unit of the estate. This society had a legal system which was decentralised, had a large non-state sector, depended in the first instance upon individual initiative and had no clear distinction between criminal and civil actions. Its main purpose was the maintenance of order through the settling of conflicts, the punishment and removal from society of the incorrigible and perpetrators of atrocious crimes and the granting of redress to injured parties. The courts making up the system were of three sorts church, royal and local courts. The church courts were an active judiciary which regulated the moral life of communities by punishing acts which violated Christian morality, which were flagrant and open or were likely to lead to conflict. The punishments used and the act of prosecution were designed to lead to a 'moral reformation' of both the guilty party and society in general. In this they were partially successful by circa 1720. They were also an investigative branch of the entire system collecting information for other courts. The local courts provided a legal service for those who wished to use it rather than acting as an enforcing judicature. The central courts had a specialised role, trying serious crimes and cases which had wide implications. They depended upon the local community for support and for the 'supply' of cases through the dittay system. Changes in the structure of society and the political order led to change. Between 1651 and 1660 a thoroughgoing reform was imposed by Cromwell. The system was restored in 1660 but further reforms were made. The 1688 revolution and the crisis of the 1690s led to the Union and sweeping changes which transformed the system into a modern one and altered the nature of the law, its enforcement and the concept and pattern of crime.