During the period 1740–1834 property offences accounted for 332 (65.7%) of the total 505 executions. The fluctuations in Scotland’s use of capital punishment
across this period were largely attributable to executions and pardons for property offences. It is worth noting here that, of the total 47 women executed in Scotland in this period, only 11 had been convicted of a property offence and thus women accounted for just 3% of the total 332 malefactors executed. Although the sheer numbers were less, the proportion of capitally convicted property offenders who were women was comparable to the figure found in England
While their numbers are included in this analysis and in the examination of the fluctuations in capital punishment to be provided in Chap. 3, the legal and public responses to female property offenders are more extensively and qualitatively explored in Chap. 4 in order to highlight the factors that potentially impacted upon the use of the death sentence
for these women.
As previously established, capital convictions for murder were statistically more likely to result in an execution (see Tables 2.6, 2.7),
and the proportion of capitally convicted murderers who were executed was almost consistently higher than the figure for capitally convicted offenders overall. Comparatively, Table 2.8 shows that the proportion of capitally convicted property offenders who were subsequently executed fluctuated to a greater extent, and more closely mirrored the general figure. For example, 82.7% of capitally convicted property offenders were executed in the mid-eighteenth century, compared to only 44.4% in the 1820s.
Although this study focuses primarily upon the cases that made it before the central criminal courts and resulted in capital convictions, it also explores the role of discretion in deciding who faced a capital charge for property offences, particularly on the part of the judges and the prosecution. As the accused was able to petition the court prior to the start of potentially capital trials, and the judges could exercise discretion in restricting the libel before the jury was sworn in, offenders would
not always face a capital punishment
even if the jury returned a guilty verdict. In addition, Table 2.9 shows that, when broken down by decade and category of offence, pardons for property crimes accounted for two thirds or more of the total number of pardons given. The role of discretion in the decision-making process was more marked in cases of property offences than murder and could go some way to determining the level of capital punishment for certain property offences
depending upon factors such as geographical context, the age and gender of offenders and the public discourse surrounding crime.
Scotland did not have the number of capital statutes that existed in England
at this time and the list of thefts punishable by death in virtue of special statutes was very short in comparison. In addition, Hume
argued that, as theft was not a crime of one invariable character, the Scottish judges had a great degree of discretion in deciding upon suitable punishments based upon individual circumstances.
Thefts related to the mail were crimes at common law but were also covered by a Scottish act passed in 1690 ‘Anent stealing of the packet’. The legislation passed in Westminster in 1767 (7 Geo III c.50) also included Scotland. Despite this, executions for the crime were still relatively low with only 12 in this period. However, in the case of Kenneth Leal in 1773, exemplary punishment was used
as he was executed and hung in chains at the spot where he robbed a post boy.
Along with theft relating to the mail, Hume
only cited one further specific category of theft covered by special statute passed in 1744 (18 Geo II c.27), namely theft of linen, cotton and calico to the value of 10 shillings from a bleaching field.
Another form of capital theft in Scotland was known as plagium, which involved the theft of a child. However, there were only three capital convictions of women for the crime and they were all subsequently conditionally pardoned.
Housebreaking was the most frequent aggravation of theft and was capital regardless of the value of the items stolen throughout much of this period, unless the level of punishment had been restricted prior to the commencement of the trial. The crime of housebreaking and theft, as charged in the courts, made up about one fifth of the total executions in this period and almost one third of the total executions for property offences. However, due to the potential for judicial discretion in allowing the accused to petition the court or for the court to restrict the libel before the start of the trial,
hundreds of offenders avoided facing a capital punishment
. At times of increased executions, notably the 1780s, capital convictions for the crime of housebreaking and theft increased. The outbreak of the American War of Independence (1775–1783)
ended the penal option of transporting offenders to America
and the British government did not immediately decide upon Australia as an alternative destination.
Chapter 3 will argue that the increase in executions in the 1780s was due, in large part, to the lack of a sufficiently severe secondary penal option
and thus the limiting of the courts’ ability to restrict the level of punishment to be meted out to those convicted. The chapter will also demonstrate that
there was not a desire to send unprecedented numbers to the scaffold
and that the proportion of capitally convicted property offenders who were executed remained relatively consistent.
After housebreaking and theft, robbery
made up the second largest proportion of executions for property offences, accounting for 34% of the total.
, robbery had been regarded as an indicator of the prevalence of crime more generally in the eighteenth century. In 1751 Henry Fielding warned of the frequency of the crime in London and stated that, if unchecked, the already flagrant increase in robberies would be liable to reach even greater heights.
However, in Scotland, with the exception of the Highlands
, more pressing concerns over the prevalence of the crime of robbery were not as evident in the mid-eighteenth century. In February 1747 three men were indicted before the High Court
in Edinburgh for violently assaulting His Majesty’s subjects with lethal weapons and robbing them of money upon the public highways. Their defence counsel argued that the crime of highway robbery should be punished with less severity in Scotland than in England “where the punishment was always capital.” He went on to argue that the crime rarely happened in Scotland and it was a just principle that the severity of the law should be proportional to how often the crime was committed. The men petitioned the court, which was consented to by the Advocate Depute, and they were banished to America for life instead of standing trial and facing a capital punishment
This case not only demonstrates the discretionary powers of the courts, it also reveals how attitudes towards the perceived prevalence of the crime could affect legal responses to it in the decision-making process. The reluctance to pursue a capital charge for some offenders in Scotland is comparable to practices in Wales where both petty and grand juries made marked efforts to prevent offenders being found guilty of robbery
indictments. Therefore, in the wider British context, Scottish responses to robbery in the mid-eighteenth century, with the notable caveat of the Highlands
, reinforce the centre–periphery dichotomy established by King and Ward in their study of the capital punishment of property offences.
The number of executions for robbery
had been relatively low until the 1780s, especially when compared to England
, and there was at least a degree of awareness of this, as evidenced in the above case. However, by the second decade of the nineteenth century, robbery had become a greater concern in the Scottish courts and the newspapers, a topic that will be further discussed in Chap. 3. In terms of the geography of the crime, the predominant number of capital convictions occurred in Scotland’s central belt, a fact that was evident in the
parliamentary returns for the years 1811–1814.
In gathering and analysing the data presented in the 1819 Report from the Select Committee on Criminal Laws, Emsley demonstrated that for London and Middlesex, between 1775 and 1784, the percentage of people executed following a capital conviction for highway robbery was 38.9%. By the early nineteenth century this had fallen to 8.6%.
Comparatively, in Scotland in the 1780s, during a peak decade in the overall numbers sent to the scaffold
, 58.3% of those capitally convicted for robbery
were executed. While this subsequently declined slightly, by the second decade of the nineteenth century it had risen again and 84% of offenders capitally convicted for robbery or the crime of stouthrief
,? which was sometimes charged synonymously with robbery in the early nineteenth century and involved the use of violence in a dwelling place, were executed. Chapter 3
will examine this continued high proportion of executions to capital convictions in more detail and
present some potential explanations for it.
There were 49 executions for theft of cattle, horses or sheep in this period. Fourteen of the cases occurred between 1746 and 1755 following trials before the Northern Circuit, this being the highest concentration of executions for the crime in any decade across this period. When breaking down the numbers of executions by decade, those for cattle, horse or sheep theft present almost a reverse pattern to the figures for other property offences, notably robbery
, as there were only seven people executed for the crime following the turn of the nineteenth century. Towards the end of the eighteenth century the charges were often restricted to a lesser
offence and thus not punished capitally. For example, in Inverness
in May 1774, three men had been indicted for cattle theft but were found guilty only of slaughtering the cows in question.
By the nineteenth century it was only in cases of excessive theft, such as that of James Ritchie who had stolen 30 sheep from the parks of Gordon Castle, where a capital punishment
A return of the number of persons brought to trial for crimes of a potentially capital nature in Scotland between 1827 and 1832 was presented to Parliament in 1832. The total number of people charged with various forms of theft, including that of horses and cattle as well as theft aggravated by housebreaking, was 1076. However, in all but 24 of these cases, the charge was restricted so the criminal would not face a capital trial.
Of these 24 cases, there were 12 capital convictions but only three executions. This demonstrates that, by the 1830s, property offences were sending fewer criminals to the scaffold
observation in 1832 that “probably a greater number of cases have been tried since the peace of 1815 than from the institution of the Court of Justiciary down to that time.”
A reading of the court records themselves also reflects the swell in the sheer volume of cases. An increase in criminality may have occurred, particularly in Scotland’s rapidly industrialising central belt, or policing and prosecution methods may have become more efficient, thus bringing more offenders to justice. However, what is clear is that the figures demonstrate the importance of the discretionary power of the courts, particularly that of the judges, to limit the level of punishment meted out.
, upwards of 60 capital statutes were passed in the eighteenth century related to the crime of forgery
stated that, along with murder, a capital conviction for the crime of forgery in the eighteenth century was the most likely to see an offender subsequently executed in England.
However, many of the capital statutes that made up the ‘Bloody Code
’ were not extended to Scotland. In turn, there were only 26 men executed for the crime of forgery
in Scotland in this period and a further 18 men and two women who had been capitally convicted for the crime but subsequently pardoned. Comparatively, in England
between 1775 and 1815, Emsley gathered the figures for London and Middlesex as well as the Home
Counties, Western and Norfolk circuits and found that 366 people were capitally convicted for forgery and, of these, 204 were executed.
During the trial of George McKerracher in 1788, despite the fact that he had forged and uttered (distributed) £48 and £49 bills of exchange, his defence argued that no damage had been sustained by any individual and thus asked for a restriction of the charge. However, this was refused and he was found guilty and sentenced to be executed in Stirling
in March 1788.
When sending his report of the trial proceedings to the Home Office
, the Lord Advocate
, Ilay Campbell, stated that there were no favourable circumstances in McKerracher’s
case. He further asserted that forgery
was as much a capital crime in Scotland as in England
and called for an example to be made with his execution.
The belief that the crime would not be punished with death in Scotland was also apparent among others capitally convicted, even as they mounted the scaffold
. At his execution in 1785 Neil Mclean was described as having “laboured under a misconception of the nature of his crime” and the severity of the punishment attached to it.
These cases are examples of the discretion exercised in the Scottish courts in response to the crime of forgery,
perhaps due to their greater use of the common law as opposed to the
statutes that made up the ‘Bloody Code
There were two main aggravations evident in cases where offenders were capitally punished for the crime of forgery
. The first was the magnitude of the crime. David Reid had forged Bank of Scotland notes and uttered them in various areas including Edinburgh, Dumfries
, Kirkcudbright and Wigtown in 1780.
Similarly, William Mackay had committed the crime in Ayr
, Lanark and Renfrew. Although the jury only found him guilty of one of the charges, when passing the death sentence
Lord Gillies stated that even if the prisoner had issued only one forged note, it was the same as if he had issued 50 of them.
The second aggravation in some of the cases was the status of the condemned. In cases of forgery, unlike in most other crimes, if a person was educated, a man of property, or held a position of trust their offence was aggravated. William Evans had been an overseer on the estate of the Duke of Portland before his execution in 1816 for forging bills of exchange.
Malcolm Gillespie was an excise officer in Aberdeen
when he was convicted of forging in excess of £200 in bills of exchange.
Following his execution in 1800 for forging and uttering notes of Carrick, Brown and Company, bankers in Glasgow
, Samuel Bell was described as having been an industrious man of property.
Following his conviction for forgery
in 1797 Millesius Roderick Maccullan was reported to have been bred in polite life and to have had the manners of a gentleman. Despite petitions from various respectable quarters in Edinburgh he was executed.
An article in the Chester Courant cited similarities between his case and the heavily reported upon English case of Dr William Dodd, who had been executed at Tyburn for forgery in 1777,
and stated that forgery was a dangerous crime and was not to be forgiven regardless of the status of the offender.
By the late 1820s there were calls to abolish the death penalty for the crime of forgery due to the increasing difficulties in securing capital convictions.
and Wales between 1820 and 1829, Radzinowicz noted that of 733 people capitally convicted for forgery
, only 64 were executed.
In Scotland in the 1820s there were six executions but nine pardons for the crime. The Edinburgh Review, a magazine edited by young Whig lawyers with support from men such as Francis Jeffrey and Henry Cockburn, argued for the promotion of Whig reforms to Scots law in the early nineteenth century. Despite sitting in an English seat in the Commons, Henry Brougham was one of the most prominent contributors to the Review and wrote in 1831 on the abolition of the death sentence
for the crime of forgery. He argued that the death sentence was harder to secure for the crime and thus it was logical to legislate for a less severe, but more certain, punishment.
In this sense the situation north and south of the border was comparable and thus the death sentence was abolished for the crime of forgery in England
and Wales and Scotland by an act passed in 1832 (2 & 3 Will. IV c.123).