The first third of the nineteenth century was a period of discussion and debate over the use of the death sentence and the merits of public punishment. As in the previous peak periods of execution discussed above, we can draw notable comparisons between the use of capital punishment
in Scotland and in England
. Numbers of capital convictions increased both north and south of the border, in Scotland to unprecedented levels, and, in both countries, debates over the use of the scaffold
permeated public discourse. In turn, by the 1830s the number of executions decreased and in both countries the death sentence
was predominantly only used for the crime of murder as property offenders were increasingly sentenced to the secondary punishments of transportation or imprisonment. What is clear is that the early nineteenth century was a focal period in Britain’s capital punishment history. While England’s
use of the death sentence
has been subject to rich historical analysis, there is a relative dearth in studies examining the Scottish experience of capital punishment in this period.
There have been quantitative surveys of Scottish crime using the parliamentary returns, which are more regularly available for the period after 1836, that have highlighted an increase in recorded and prosecuted crime.
However, the current study is the first to provide an extensive examination of Scotland’s capital punishment history in this period, including an analysis of the factors that impacted upon the use of the death sentence. While a study of the Scottish experience offers notable comparisons and reinforcements to studies of England
, it cannot simply be assimilated into this more developed historical field. Instead, a study of Scotland’s distinct response to the increase in the
number of offenders facing the hangman’s noose provides a rethinking of the wider British capital punishment
narrative in the early nineteenth century.
demonstrates that in the second decade of the nineteenth century the number of executions in Scotland doubled compared to the previous decade. Furthermore, unlike the subsequent reduction in the number that was evident following earlier peak decades of executions, the 1820s saw a further increase. When demonstrating the pattern of capital convictions and executions in England
showed that for London and Middlesex capital convictions markedly increased following the end of the Napoleonic Wars but the number of executions did not drastically increase. He
argued that this widening gap between capital convictions and executions, while coming at a time when the ‘Bloody Code
’ faced increasing criticism by reformers, may also have been recognition, on the part of the authorities, that it would not be acceptable to execute so many individuals.
In a similar vein, Gatrell
highlighted that in 1785, during the crime wave of the 1780s, of the 153 criminals capitally convicted at the Old Bailey, 85 were executed. He
argued that, while it may have been plausible to execute 56% of the total offenders capitally convicted in 1785, by the 1820s this proportion could not be sustained.
Thus he cited the rising death sentences
of the early nineteenth century as a primary reason why “the system unravelled itself and became unworkable.”
Comparatively, Table 2.6
shows that in Scotland the proportion of offenders capitally convicted who were subsequently executed was consistently 60% or more by the 1770s and, if we remove the numbers of those executed and remitted for treason, the figure was still 52% in the 1820s.
A potential explanation for this proportional continuity may be found in a reading of judicial opinion when sentencing offenders. The current study provides a reinforcement of the argument briefly made by Crowther, namely that in Scotland, rather than keeping executions to a socially acceptable level in the early nineteenth century, as Gatrell’s argument
suggested, the unprecedented number of capital convictions meant that it was believed to be necessary to keep up the level of exemplary punishments.
To advance this argument, this chapter
will now turn to investigate the factors that contributed to both the increased levels of capital convictions and the continuity in the proportion executed.
The increase and density of population growth across Scotland’s central belt was a key factor that contributed to the increased proportion of capital convictions and resulting executions in the area. However, it will be demonstrated that, while the numbers of people executed increased in Edinburgh, the number per 100,000 head of Scotland’s population did not witness the same increase evident in the figure for the Western Circuit which covered an area that had experienced rapid population growth. As an example, Table 2.4 shows that in Edinburgh executions per 100,000 head of Scotland’s population remained between 1.1 and 1.7 across the period from the mid-eighteenth century to the late 1820s. It was similarly the case in the Southern and Northern Circuits, after the mid-eighteenth-century peak, with both having consistently low figures below 1.0. However, the figure for the Western Circuit rose from 0.2 in the mid-eighteenth century to 1.7 by the 1820s, with an increase of 0.5 occurring between 1810 and 1829. When we break down the figures for the Western Circuit it is evident that property offences accounted for much of this increase.
population had risen from 32,000 in 1755 to 147,000 in 1821 and the accompanying industrial growth and urbanisation
has been described as a “cumulative and self-reinforcing growth that produced the greatest of Britain’s provincial cities.”
When investigating the industrialisation
and demographic change in Glasgow in the first half of the nineteenth century, Gibb
pointed towards rapid urbanisation due to population growth and migration from other areas of Scotland as well as from Ireland. Furthermore, he
highlighted that between 1814 and 1830 the living standards of the unskilled workforce fell markedly in the face of over-crowding and inadequate nourishment.
noted that the Napoleonic wartime levels of income for handloom weavers, particularly those working on the plainer fabrics that accounted for the majority of their production, fell sharply after 1815 and did not recover.
In addition, Barrie and Broomhall
argued that it was in expanding towns such as Glasgow
that discontent was expressed by the middling ranks over the level of protection offered to property and that these concerns were key in the push for the establishment of police courts.
Although the jurisdiction of police courts was limited to minor offences, and the punishments they meted out were limited to short-term prison
sentences and fines, the desire for more speed and efficiency in prosecuting offenders is perhaps reflective of broader concerns over the believed prevalence of property crime.
In terms of the infliction of capital punishment
, the number of people executed for property offences in Glasgow
equalled and then surpassed the figure for Edinburgh. In their recent study of the regional variations in the implementation of capital punishment for property offences in the third quarter of the eighteenth century, King and Ward
argued that executions for property offences were markedly higher in and around the central urban areas than on the peripheries in Britain.
The mid-eighteenth-century peak in executions provides a caveat to their findings, as capital punishment was used to further punish the peripheral north. However, an analysis of the early nineteenth century provides a reinforcement of their centre–periphery dichotomy. Despite covering roughly one seventh of the geographical area of Scotland, the central belt contained the highest density of population and industry and the area accounted for the highest proportion of executions for property offences.
Of the total capital convictions following trials before the Western Circuit between 1810 and 1819, 36 (92%) were for property offences and between 1820 and 1829 the figure was 46 (88.5%). Table 2.8 shows the proportion of those capitally convicted for property offences executed in Scotland. The 1820s evidently witnessed the lowest percentage of convicted property offenders sent to the gallows despite the decade having the highest number of capital convictions. In Edinburgh, of 36 capital convictions for property offences between 1810 and 1819, 26 (72.2%) were executed. However, of 42 capital convictions in the 1820s only 14 (33.3%) were executed. This pattern fits with the arguments of Gatrell and Emsley discussed above, namely that in the face of rising capital convictions, the proportion of offenders who were executed fell, particularly for certain property offences.
However, the figures for the Western Circuit do not support this argument and provide a notable caveat as they were markedly higher with 55.6% of capitally convicted property offenders executed between 1810 and 1819 and 63% in the 1820s. Table 3.1, showing executions for property offences per 100,000 head of Scotland’s population by circuit, shows that by the early nineteenth century the figure for the Western Circuit, notably Glasgow
, equalled and then surpassed that for Edinburgh. In contrast, the figures presented in Table 3.2 for murder in the Western Circuit remained very low at 0.1, behind that of Edinburgh and the Northern Circuit.
A key source utilised to gain a degree of understanding of crime, or more specifically the believed prevalence of crime, in this period is the newspapers. Until the late eighteenth century, with the exception of reporting upon certain executions in northern Scotland in the post-1745 decade, crime reporting in the Scottish newspapers often only contained the basic facts of the offence with little of the journalistic opinion that can be found in the London newspapers. However, by the early nineteenth century, the newspapers offered a greater volume of opinion regarding the need for exemplary punishment in the face of a believed rise in crime. Kilday
argued that in this period the newspapers gave an alarming impression regarding the nature and frequency of crime, even though the sheer number of indictments remained lower than in other countries. She
suggested that this distortion played a key part in the “burgeoning misconception surrounding Scottish crime.”
From a reading of the newspapers it is evident that, despite the reporting of increased numbers sent to the scaffold
, there was an acknowledgement that Scotland was not the forerunner in this trend. However, crucially, it is also evident that
certain crimes were portrayed as being committed on an unprecedented level due to the numbers being sent to the gallows. Reporting on the case of two men executed for robbery
in 1815 the
echoed the sentiment of the Lord Justice Clerk
in passing the death sentence
, namely that the most vigorous administration of justice was required to curb the crime which was “unknown formerly in this part of the United Kingdom.”
A recurring theme and contemporary fear expressed in the court records, but even more so in the newspapers, was the youth of many of those receiving capital punishments
. In October 1817 the
commented that it was a remarkable circumstance and a deep regret that in one month it had been necessary to execute 11 people and most were under the age of 30.
Using the enumeration statistics available for 1821 it is possible to calculate that in most areas, including the main cities of Edinburgh, Inverness
, the industrial areas in and around Lanark, which included Glasgow
, and large areas of northern Scotland including Caithness, Ross and Cromarty, about a quarter of the male population was aged between 15 and 30 with a further 9–13% aged between 30 and 40.
Of the 154 people executed in Scotland between 1810 and 1829, it is possible to calculate from the ages provided that at least 60% were aged between 15 and 25 and a further 12% were aged between 26 and 30. In March 1812 Hugh MacDonald, Neil Sutherland and Hugh Mackintosh were indicted for several robberies, with Mackintosh additionally charged with murder. The crimes were part of riots that had occurred in Edinburgh in December 1811, in which “idle apprentice boys…knocked down, robbed and wantonly abused almost every person who had the misfortune to fall in their way.” Amidst attempts to quell the unrest Dugald Campbell, a police watchman, was beaten to death. The magistrates of the city offered monetary rewards for the apprehension of the culprits, especially the murderer. Of the arrests made, five men were brought to trial with others acting as prosecution witnesses.
The youth of the prisoners, especially MacDonald who was just 15, created a strong sensation in the court. All three were sentenced to be executed on 22 April 1812 on the High Street in Edinburgh opposite the stamp office, close to where the murder had occurred, with the body of Mackintosh to be delivered to Alexander Monro, the Professor of Anatomy at Edinburgh University
, for dissection
George Napier and John Grotto were brought before the court a couple of days later but pleaded guilty to one robbery
each. The Advocate Depute restricted the charge so they would face a punishment short of the death sentence
and they were to be transported for 14 years.
However, in a report sent to the Secretary of State, David Boyle, the Lord Justice Clerk
, stated that, due to the alarming nature of the crime and the fact that it had occurred on the heavily frequented streets of Edinburgh, he could see no reason for the law not to take its course for the three boys facing the noose.
Following their execution it was reported that there had been evident sympathy for them but the article added that their execution was intended as a dreadful and lasting example and that this motivation was “the only justification of so strong a measure.”
Following this case the category of ‘murder and robbery
’ was added to the return of persons committed to trial in Scotland for the years 1811–1814 presented to Parliament, again demonstrating the widespread attention the circumstances of the crime and its aftermath had attracted.
In his work on the first half of the nineteenth century, Donnachie demonstrated that crimes were committed overwhelmingly by males, the vast majority of whom were under 30 years of age.
The current chapter supports this arguement and has found that, instead of serving as the lasting and dreadful example intended, the above case was one of several in the early nineteenth century where not only the fears over the prevalence of the crime but also the youth of the offenders would be dwelled upon. In the following year, the death sentence
was handed down to John McDonald, age 20, and James Williamson Black, age 18, for murder and robbery
, and the judges delivered their opinions of the case at length. They expressed astonishment that in a country “so long distinguished for knowledge and virtuous conduct” so many instances of youthful depravity should have lately occurred. As in the case discussed above, the judges lamented that they were obliged to “recur to those more striking and awful punishments which our law enjoins.”
As well as an increase in the number of executions, this period also witnessed cases where three or even four criminals were executed for the same property offence.
The fact that there were no similar cases in the second half of the eighteenth century serves to further demonstrate that there was a determination in the early years of the nineteenth century to make more stark examples of those engaged in criminality.
Richard Smith, age 16, was found guilty of housebreaking and theft and, despite the jury’s recommendation to mercy on account of his young age, he was executed in May 1820.
Similarly, James Ritchie, age 17, was condemned in Aberdeen
for stealing 30 sheep from the parks of Gordon Castle. Despite a recommendation to mercy and zealous endeavours on the part of the local clergy, university professors and the Duke of Gordon to obtain a remission
, Lord Sidmouth, the Secretary of State, refused on account of the magnitude of the crime.
There are numerous other examples of the jury recommending an offender to mercy where the judges or the Lord Justice Clerk
, in correspondence with the Home Office
, declined to support the recommendation, believing that severe examples needed to be made. In 1817 John Larg and James Mitchell were charged with having broken into the house of William McRitchie and as having stolen two papers that they believed to be bank notes, although it was later discovered that they were worthless papers of no value. When their defence attempted to object to the charge the prosecutor answered that in cases such as theirs the value of the item stolen was irrelevant.
Despite finding them guilty of the crime, the jury had recommended mercy as no personal violence had been used against the occupants of the house. However, the judges were not prepared to
support the recommendation
as they reiterated that the offenders had been in possession of a pistol which constituted a threat of personal violence against the home owner. They added that any hopes of a pardon
were “precarious indeed.”
The two men were subsequently executed.
The important balance between the need to make strong punitive statements at times of increased capital convictions and the exercising of judicial discretion was also evident in the following case tried by the High Court
in Edinburgh in February 1823. Charles McLaren and James McEwan, both age 14, and Thomas Grierson, age 13, were capitally convicted for housebreaking and theft.
They had unanimously been recommended mercy by the jury due to their youth and a few days before their scheduled execution date on 12 February the Lord Justice Clerk
reported to the High Court that the full details of the case had been sent directly to the Home Secretary, Robert Peel. He added that he had no doubt that remissions
of the death sentences would arrive for the young
offenders but, owing to the state of the roads due to the weather, six London mails were running late. Therefore, it was believed to be absolutely necessary for the court to use its authority to stay the execution until 26 February to allow time for the remissions to arrive.
They finally did so, and the boys were sentenced to be transported for life.
This confidence that they would be pardoned goes some way towards explaining why they were capitally convicted in the first place, when a restriction of the punishment earlier in the proceedings could have been exercised as in other cases of a similar nature.
In sentencing these young boys to death, the court wanted to make a poignant statement, but
they also clearly intended their subsequent remission
. The handling of their case from conviction to pardoning was a prime example of the pulling of Hay’s levers of fear and mercy in the punishment of property offences in this period.
When breaking down the total number of executions across the period into category of offence, it becomes clear that the sheer number of property offenders who suffered at the scaffold
was subject to a greater degree of chronological fluctuation than the figures for murder. The 1820s saw an increase in the number of executed murderers which continued into the 1830s. In addition, in his study of Scottish homicide rates, King
demonstrated that between 1805 and 1814 there was an average of 1.0 recorded murder per 100,000 head of Scotland’s population. By the 1830s this had risen to 1.75 and by the 1840s the figure was 2.6.
However, the marked upturn in the number of executions in early nineteenth-century Scotland was primarily due to an increase in the number of executions for property offences which doubled between 1810 and 1819 compared to the previous decade and remained at a similar level in the 1820s. Donnachie
stated that, within the overall number of criminal investigations, property offences rose from making up slightly more than half the total number in 1810 to 75% by 1830.
The parliamentary returns for Scotland available for this period also demonstrate how the overwhelming majority of those committed for trials had carried out property offences.
Furthermore, this study has found that property offences made up 60% of the total number of executions between 1800 and 1809, rising to 80% between 1810 and 1819. It is important to note here that while the rise in the number of executions for property offences may be, in part, attributable to an increase in crimes committed, it is likely that a more efficient standard of policing and apprehension was also significant.
this study argues that judicial opinion and public discourse were crucial in dictating Scotland’s increased use of capital punishment
in the early nineteenth century and that nowhere was this more evident than in the use of capital punishment for the crime of robbery.
The crime of robbery
accounted for 34% of the total property offenders sent to the gallows in Scotland across this period. In terms of property crimes, only capital convictions for housebreaking and theft sent more malefactors to their death. Chapter 2 demonstrated that, although robbery had been used as an indicator of the prevalence of crime in England
since at least the mid-eighteenth century, in Scotland
the offence did not appear to cause the same level of concern within the central criminal courts until the early nineteenth century. In addition, it was not until the second and third decades of the nineteenth century that the offence began to permeate crime reporting in the Scottish newspapers. The pattern for the capital conviction and execution of Scottish robbers can be linked to wider trends in the country’s use of the death sentence
to some extent. For example, the number of executions for robbery almost doubled between the late 1770s and 1780s and there were discernible links to the wider difficulties facing the authorities in finding a suitably harsh alternative in lieu of the penal option of transportation. In addition, 60 of a total 114 (53%) of all executions for robbery
occurred between 1810 and 1829, and correlated with the increase in the number of executions overall. Of these, 50 of the 60 executions occurred following trials before either the High Court
in Edinburgh or the Western Circuit sitting at Glasgow
. Again, this reinforces the centre–periphery dichotomy in the punishment of property offences highlighted by King and Ward.
Although nineteenth-century Scottish crime has not received the same level of historical attention as experiences south of the border, Kilday highlighted that fears over a robbery epidemic were
similarly evident in Scotland as in England
despite the much lower number of prosecuted cases north of the border.
In turn, the editorial rhetoric employed when reporting upon robbery
cases that resulted in an execution in various ways epitomised judicial and press responses to the perceived rise in serious crime in Scotland in the early nineteenth century and goes some way towards explaining the high proportion of capitally convicted robbers who were subsequently executed.
When the Lord Justice Clerk
sentenced William McGhee and Charles Britton to death for the crimes of robbery and stouthrief
in 1820 he noted the frequency of this type of crime. They had broken into the house of James Drennan, threatened him and had stolen several
items. He added that, while the offence had been a long-standing problem in a sister kingdom, it had been a rare occurrence in Scotland until recently.
Although stouthrief was not new to the Scottish records, charges relating to this crime were somewhat sporadic until the early nineteenth century. In addition, there were several cases of robbery
tried in the eighteenth century
where stouthrief was not additionally charged.
Therefore, this study argues that, in charging the offence synonymously with robbery, the courts were seeking to mark out certain cases, and perhaps secure capital convictions and justify the subsequent executions in the face of rising numbers of capital convictions for property offences more generally.
lamentations over Scotland’s increased recourse to the death sentence
, and comparisons with practices in England
, were evident in several other cases in this period. As noted above, most executions for robbery
followed trials in Scotland’s central belt cities of Edinburgh and Glasgow
. Although Edinburgh had consistently accounted for a sizeable proportion of the total number of executions across the century under examination, in the early nineteenth century the Western Circuit sitting at Glasgow was sending as many, and in some years more, offenders to the gallows. This fact was noted, and lamented, by contemporaries. In 1824 John McCrevie was capitally convicted by the Glasgow court for two different acts of robbery and stouthrief
that had involved forcible entry into houses, and in one case the beating of the owner with a poker, and the theft of various items. Two of his accomplices had fled and were outlawed for failing to appear in court. The judge, Lord Meadowbank, stated that he had no hope of a pardon
the perpetration of these crimes of late in the area threatened the security of the inhabitants and thus required a severe response.
Similarly strong sentiments had been expressed during the trial of Thomas Kelly and Henry O’Neil for three acts of highway robbery in 1814. The Lord Justice Clerk
stated that the High Court
was determined, by the most prompt and vigorous administration of justice, to punish offences of that kind to correct the “loose manners of the time.”
added that it was due to the frequency of this offence “formerly little known in Scotland” that the court was induced to execute the men at the scene of the last robbery
will demonstrate that the period between the mid-eighteenth and early nineteenth century was one of transition in terms of the staging of the public execution spectacle, including the locations at which it was carried out. The chapter
will show that executions across this period were predominantly carried out at an established common place in each circuit city. However, between 1740 and 1834, there were 53 malefactors sentenced to be executed at, or very near, the scene of their crime with 32 of these cases having occurred between 1801 and 1834. This chapter has already noted the concentrated use of crime scene executions in northern Scotland during the decade following the defeat of the 1745 Jacobite Rebellion
. In addition, an in-depth examination of the drivers behind Scotland’s use of crime scene executions between 1801 and 1841 has been provided elsewhere and has demonstrated that their increased and concentrated usage in the early nineteenth century provides a reverse pattern to practices in England
is beneficial to contextualise the deviation from the established common places of execution within this chapter’s investigation of the increased use of capital punishment
more widely in the first third of the nineteenth century. There were discernible similarities in some cases to justify hanging an offender at the scene of their crime, such as the youth of the offenders or the perceived prevalence of the crime they had committed. In addition, within the increased space dedicated to crime reporting in the newspapers, there were calls for
some further severity to quell the unprecedented numbers facing the hangman’s noose. A reading of judicial opinion when ordering that an offender be executed at the scene of their crime reveals similar attitudes to those previously discussed in this chapter, namely a lamentable dismay at the necessity to resort to more striking and severe punishments. These executions were yet another distinct Scottish response to the rising numbers of capitally convicted offenders in Britain and serve to further demonstrate
that, although there were similar attitudes and practices discernible north and south of the border, Scotland’s capital punishment history in this period cannot be readily assimilated into the more Anglo-centric British narrative.