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Conclusion

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Part of the Palgrave Historical Studies in the Criminal Corpse and its Afterlife book series (PHSCCA)

Abstract

This chapter synthesises the key findings and conclusions generated throughout the study. It explores how its examination of capital punishment and execution practices in Scotland can be situated, and can reinforce some of the broad trends, within the established British, and to some extent the wider Western European, narrative. However, it also argues that the crucial caveats identified throughout the study demonstrate that Scotland was unique in its implementation of the death sentence and in its use of post-mortem infamies, and thus the study provides a fresh perspective of Britain’s capital punishment history during the mid-eighteenth and early nineteenth centuries.

This study has provided the most extensive examination of Scotland’s capital punishment history between the mid-eighteenth and early nineteenth centuries to date. It has detailed the journey of capitally condemned criminals from the courtroom to the gallows and sometimes to the dissection table or the gibbet cage. It has demonstrated that this period was one of discussion and debate over the use of the death sentence and the merits of public punishment and one of fundamental change in the staging of the execution spectacle. Furthermore, in providing an innovate investigation into the post-mortem punishment of the criminal corpse , this study has identified an intermediate stage in the long-term disappearance of public bodily punishment. The aim of this final chapter is to synthesise the key findings and conclusions generated throughout the study. It will adopt a dual approach to addressing these conclusions. First, it will explore how this study of previously neglected Scottish public execution practices can be situated, and reinforce some of the broad trends, within the established Western European historiography. However, it will also highlight areas where the unique Scottish experience provides a rethinking of the narrative. Second, it will explore how the study has demonstrated Scotland’s distinctive use of the death sentence and post-mortem punishment. Within this, it will offer notable comparisons with practices in England and, in doing so, will provide a fresh perspective from which to view key periods in Britain’s capital punishment history.

Within the historiography focused upon capital punishment in Western Europe, the Early Modern period has been characterised by spectacles of suffering upon the scaffold with executions such as burning, boiling alive and breaking on/with the wheel used to further punish heinous crimes. 1 However, by the eighteenth century, Evans argued that “similar changes in penal practice happened virtually everywhere at roughly the same epoch” with the “banishing of the more baroque cruelties from the scene of the scaffold.” 2 Executions that inflicted prolonged pre-mortem suffering were declining or were adapted in order to bring about the quicker death of the condemned, for example by breaking an offender ‘from above’ or strangling women before they were burned. 3 While the Scottish experience broadly reinforces this argument of a gradual decline, this study has also identified the last vestiges of older execution practices as late as the mid-eighteenth century in Scotland. Executions by burning had been used in Scotland in the sixteenth and seventeenth centuries but were very rare by the turn of the eighteenth century. 4 The decision to sentence Alexander Geddes to the punishment in 1751 was due to the heinous and unnatural nature of his crime of bestiality, but was the final instance of a declining practice.

In addition, while mutilation as a punishment had fallen into disuse, it was still employed as an execution prelude in mid-eighteenth-century Scotland. Four men were sentenced to have a hand severed from their bodies immediately prior to being hanged by their necks until dead. As was similarly the case with executions by burning , this type of punishment was used sporadically in the eighteenth century and, by the time of the final case in 1765, there was an evident ambivalence on the part of the scaffold authorities, demonstrated by the desire to sever Alexander Provan’s hand and hang him as quickly as possible. The disappearance of these aggravated forms of execution demonstrates that the Scottish experience reinforces the wider European narrative of a gradual move away from scaffold cruelties that were more characteristic of the Early Modern period. However, this disappearance was not an entirely linear pattern of decline and the survival of these practices in the mid-eighteenth century demonstrates the later timing of the final break with certain older execution practices in Scotland. It also further serves to highlight Scotland’s distinction when compared to England and Wales, where there were no cases of offenders having a hand severed prior to execution in the same period.

The punishment of treason in the eighteenth and nineteenth centuries has remained relatively peripheral within the wider execution narrative. Historically, the distinction afforded to the crime of treason in legal statute was matched by the most severe punishment upon the scaffold . Throughout the eighteenth century the death sentence passed against the convicted traitor remained the same as it had been since the fourteenth century. They were to be hung, drawn and quartered. However, in briefly situating a discussion of treason within an examination of execution practices more generally, Chap. 5 highlighted that following the Jacobite Rebellions of 1715 and 1745, while there were some examples of the full sentence being carried out, in several others the executions were subject to discretionary implementation. For example, in some cases the heads were severed immediately following the hanging which effectively made the disembowelling part of the sentence a post-mortem punishment . By the time of the executions in 1794 and 1820 in Scotland, the men were hanged until they were dead and the severing of their heads was made a definitive post-mortem punishment. The holding up of the heads to the crowd was done quickly and without great ceremony rather than being characterised by deliberate elaboration. In greatly adapting the traditional traitor’s death sentence , the authorities carried out exemplary punishments but avoided inflicting excessive pre-mortem suffering which may have called into question the very legitimacy of the whole proceedings.

Garland provided a three-stage model of capital punishment in the West between the Late Middle Ages and the present day. In his Early Modern period, he argued that newly emergent states afforded the death penalty a central role in the task of state-building and security. His model is not only applicable to a discussion of treason as it also supports the broader argument in the historiography, namely that Early Modern executions were intended to be very public spectacles of physical suffering. He argued that the gradual disappearance of these aggravated executions, with the transition into his Modern period, was due to an alteration of the primary purpose of capital punishment, that is, from an instrument of rule to a penal practice with the narrower goals of “doing justice and controlling crime.” 5 Within this change, executions were not aimed at terrorising onlookers with spectacles of suffering and the body in prolonged pain ceased to be a desired part of the process. 6 This new restraint in bodily punishment resonates with the earlier argument made by Foucault, namely that, by the early nineteenth century, the theatrical elements of public executions were downgraded and instead they were focused more upon the taking away of life as opposed to the physical punishment of the body. 7 This study’s discussion of the disappearance of punishments such as burning and pre-mortem mutilation provides some reinforcement of Foucault’s work and broadly fits Garland’s framework of analysis. However, in situating the post-mortem punishment of the criminal corpse into Scotland’s execution narrative, this study has identified an intermediate stage in the long-term changing nature of capital punishment , and within this the disappearance of the publicly punished and displayed criminal body between the mid-eighteenth and the early nineteenth century.

The post-mortem punishment of the criminal body had been a penal option prior to the mid-eighteenth century but it was subject to discretionary implementation. However, in passing the Murder Act in 1752, Britain was unique in placing post-mortem punishment at the centre of the criminal justice system’s response to homicide. Yet, this fact has been largely ignored within the historiography until recently. In both Scotland and England , the late 1740s and early 1750s witnessed an increase in the use of gibbeting to add further severity to the death sentence . In Scotland, the punishment was used during the peak numbers of executions in the wake of the 1745 Jacobite Rebellion . In England, it was intended to act as an exemplary punishment for the crimes of smuggling and violent robberies that were believed to be endemic in London and south-east England. 8 Interestingly, the increased use of gibbeting and the subsequent passing of the Murder Act occurred at around the same time as the final instances of aggravated executions in Scotland. This again serves to highlight the existence of an intermediate stage, where the infliction of pre-mortem suffering upon the condemned may have been declining in favour of a quicker death. However, the punishment of the body continued to be a cornerstone of the criminal justice system as both dissection and hanging in chains placed the criminal corpse on display and they each involved the public dismemberment of the body, whether this was under the surgeon’s lancet or rotting in the gibbet cage.

The Murder Act stipulated that the post-mortem punishments of dissection and hanging in chains were intended to “impress a just horror in the mind of the offender and on the minds of such as shall be present of the heinous crime of murder.” 9 This study has shown that contemporary fears over the disposal of the dead body could be rooted in religious or theological questions over the fate of the soul and questions of whether earthly intervention with the body could affect the afterlife. They could also stem from the anxiety felt towards the visceral dismemberment of the body. In the eighteenth century, Francis Hutcheson made the argument that an “easy death” of the condemned with subsequent infamies enacted upon the corpse would have a greater effect upon the crowd than horrid execution spectacles. 10 Similarly, in the early nineteenth century, Sir Walter Scott argued that the post-mortem punishment of the body had the potential to affect the criminal more than the death sentence itself. 11 Chapter 6 highlighted examples where this appeared to be the case, as the knowledge that their body was destined for the dissection table seemed to cause the criminal greater psychological torment than the execution itself.

Furthermore, there were some adverse crowd reactions to post-mortem punishments  as those responsible for delivering bodies to the universities for dissection were sometimes attacked and bodies were illegally removed from their gibbet cages. As historical sources provide only limited evidence ‘from below’, we cannot assume that all offenders or spectators were similarly affected. Therefore, it is impossible to conclude definitively that these punishments met the aims outlined in the Murder Act, namely for the punishments to impress upon the minds of every person condemned and upon the minds of all those who witnessed them. However, through an examination of some of the responses to these punishments we can gain an insight, although certainly not a homogeneous one, into the scene at the public execution, the dissection table and the gibbet foot. In turn, in placing the Murder Act within its broader discussion of the changing nature of capital punishment between the mid-eighteenth and early nineteenth century, this study has challenged the meta-narrative that the decline in aggravated executions meant that prolonged bodily punishment ceased to be a desired part of the death sentence . Instead, it has shown that there was an intermediate stage where, despite the decline in pre-mortem suffering on the part of the condemned, the criminal body continued to hold some punitive currency and remained an important means of setting apart certain criminals, particularly murderers.

Wrightson stated that much of the research into Scottish history in the eighteenth century can be placed into two distinguishable, yet overlapping, interpretive traditions. The first highlights Scotland’s unique institutions, society and culture. The second stresses Scottish participation or incorporation in the making of modern Britain. 12 Key topics that have received substantial attention include the passing of the 1707 Union and its potential effects upon Scotland’s economic and, later, cultural identity. Following the Union, Scotland maintained its own distinct legal system and a large degree of autonomy in its application of criminal law, a fact that has been acknowledged by historians but thus far not extensively explored in relation to the country’s use of the death sentence . 13 Chapter 2 examined the crucial distinctions of the Scottish legal and court systems, especially when compared to England, which impacted upon the country’s use of capital punishment . It explored the practices in the Justiciary Courts of allowing offenders to petition the courts prior to the commencement of their trials and of allowing the court, with the agreement of the Advocate Depute acting as the prosecution, to limit the level of punishment to be meted out in potentially capital trials. It demonstrated how the judicial discretion these practices afforded to the courts impacted upon the level of capital convictions. For example, historians have argued that pre-trial processes, including how the evidence against the accused person was compiled, meant that the cases brought before the Justiciary Court were “effectively incontrovertible” and, for those charged with serious offences, “their chances of survival were slim.” 14 However, this study has shown that, while a high proportion of offenders did receive some form of punishment, this was the death sentence in a relatively small proportion of the total cases that could have potentially resulted in a capital conviction. Chapter 3 explored the importance of the ability of the courts to limit the level of punishment for potentially capital property offences. Crucially, it demonstrated that the impairment of this option by the temporary cessation of transportation for much of the 1780s, and thus the removal of a sufficiently severe secondary punishment, had a marked effect upon levels of capital convictions, and thus executions, for property offences.

Examining the ability of offenders to petition the courts is particularly important to our understanding of the punishment of infanticide in Scotland across this period. Although it was a form of homicide, the crime of infanticide was treated with some distinction in the courts. The provisions of the draconian seventeenth-century act which pointed to the concealment of pregnancy and the birth of an illegitimate infant as evidence of murder should said child be found dead, was still in place for much of this period. However, Chap. 4 demonstrated that only a small proportion of the women charged with infanticide faced the death sentence and that executions for the crime declined markedly following the mid-eighteenth century. Approximately 250 women brought before the Justiciary Courts received some form of punishment, and were thus either found guilty or admitted some level of guilt, of the crime of child murder between 1740 and 1809. The latter was the year in which the 1690 statute was repealed and concealment of birth was established as an alternative charge to child murder and carried a maximum sentence of two years in prison. Of this total, only 33 (13%) of these women received a capital conviction which resulted in 23 executions and 10 pardons. In most of the remaining cases the courts had allowed the accused women to petition before the start of their trials which resulted in most of them being banished from Scotland, and a few being transported. In the 20 years immediately preceding the 1809 act, 79 women accused of child murder petitioned the court and were banished from Scotland and an additional two were transported. Comparatively, in the same period, there were only three women capitally convicted for the crime, of whom two were executed. This not only reflects the broader shift in legal and press responses to women who committed infanticide , but again demonstrates the discretion afforded to the judges by the nuances in the Scottish court system which impacted upon the country’s use of the death sentence .

In focusing upon the whole of Scotland, rather than just one specific area, across almost a century, this study has demonstrated that there were intra-Scottish factors, such as social and political contexts, population growth and industrialisation that affected the use of the death sentence in certain areas at different times. In addition, this study has used the unique Scottish experience to offer notable comparisons with practices in England . For example, the peak periods of execution discussed in Chap. 3, namely the mid-eighteenth century, the 1780s and the early nineteenth century, were also times of increased executions in England. However, comparisons between the drivers responsible and judicial and press responses to it is an area of research that had been largely neglected by Scottish and English crime historians alike prior to the completion of the current study.

Execution levels increased in both England and Scotland in the mid-eighteenth century. However, the reasons for this differed. In England , there were fears over the negative effects of demobilisation in the late 1740s and a moral panic in the newspapers over the perceived prevalence of certain crimes, notably violent robbery , in and around London. In comparison, Chap. 3 demonstrated that the peak numbers of executions between the late 1740s and the 1750s in Scotland were linked to the aftermath of the late Jacobite Rebellion. The Northern Circuit accounted for more than half the total number of executions and the decade witnessed the highest percentage of those capitally convicted who were subsequently executed, showing the determination of the authorities to make severe examples in the area. Certain property offences such as cattle theft and robberies committed by men who were notorious in the area were particularly prevalent in the numbers sent to the gallows with 2.1 executions for property offences per 100,000 head of Scotland’s population occurring in the Northern Circuit. This figure is put into even sharper focus when we compare it to the figure for property offences convicted at the High Court in Edinburgh, which was only 0.5 per 100,000 head of Scotland’s population.

In their recent study of the use of capital punishment in the third quarter of the eighteenth century, King and Ward argued that there were notable regional variations in the use of the ‘Bloody Code ’ for property offences, with large areas on the peripheries sending markedly low numbers to the gallows. They included Scotland between 1755 and 1770 in their analysis, to avoid the mid-eighteenth-century peak, and found that, although the numbers of executions in Scotland nationally were low, there were regional variations. The Northern and Western Circuits had very low execution rates for property offences at 0.05 compared to the figure for Edinburgh which was 0.21. 15 The current study therefore provides a reinforcement of their centre–periphery dichotomy, especially in the early nineteenth century, but also demonstrates that the mid-eighteenth century in Scotland provides a caveat wherein capital punishment was used to establish control in the peripheral north.

While the mid-eighteenth-century increase in executions was due to the specific context and location of northern Scotland, the drivers behind the increased use of capital punishment in the 1780s were comparable with the situation south of the border. Executions for property offences in Scotland tripled from 24 in the 1770s to 73 in the 1780s. Similarly, in England there was an increase in capital convictions following the end of the American War of Independence and, by the mid-1780s, the number of executions per year in London had reached a high of 80. 16 Following the end of the War of Independence, both countries faced the problem of demobilisation. 17 In Scotland, 15.8% of those capitally convicted were stated to have been part of the army or navy and every one of the convictions was for property offences. An additional problem facing both countries in the 1780s was the end of the penal option of transporting convicts to the American colonies. Donnachie stated that, prior to the 1780s, transportation had been used relatively infrequently by the Scots and even after the establishment of transportation to Australia he estimated that they made up just over 5% of the total convicts sent from Britain and Ireland. 18 However, this seemingly low proportion of offenders was more reflective of the lower numbers tried by the Scottish courts for capital or transportable offences rather than an aversion to the use of the punishment. It could also be attributed to the fact that not all offenders sentenced to transportation were sent across the seas  as some were still imprisoned in Scotland years after their original sentence. In Scotland, the lack of the option of transportation had a direct impact upon the numbers of capital convictions for property offences in the 1780s, which again demonstrates the centrality of the punishment in Scotland’s penal arsenal. This was, in part, due to the removal of the option for the court to restrict potentially capital cases prior to the accused standing trial and left limited penal options between the death sentence and short-term prison sentences or corporal punishments .

Despite the evident similarities in the causes of the increased use of capital convictions in the 1780s, there was not the same determination to send offenders to the gallows in Scotland as there appeared to be in England . In the mid-1780s in London, the judges were determined that no one capitally convicted in the Home Counties would be pardoned. Although this extreme policy received criticism, and was quickly modified, it did increase the rate of execution. 19 Instead, in Scotland, despite the number of capital convictions increasing by three times compared to the 1770s, the proportion of those capitally convicted who were executed in the 1780s did not increase. In fact, the proportion of capitally convicted property offenders who were executed slightly decreased compared to the figure in the 1770s. Furthermore, a study of the pardoning material highlights how the judges often advocated mercy and pointed towards potential mitigating circumstances in some cases. In addition, there was not the same level of moral panic over the perceived prevalence of crime in the Scottish newspapers as there was in their English counterparts. Therefore, despite the similar causes for the increased numbers of capital convictions north and south of the border, Scotland maintained notable distinctions in its use of the death sentence .

The second decade of the nineteenth century witnessed the number of executions in Scotland double compared to the previous decade, an increase that continued in the 1820s. When broken down by category of offence, the number of executions for murder remained stable until the late 1820s and early 1830s, when it became one of the only crimes sending offenders to the gallows. However, executions for property offences increased markedly in the second and third decades of the nineteenth century, with the majority occurring following trials in Edinburgh and those before the Western Circuit, chiefly the sitting at Glasgow . Chapter 2 demonstrated that the increase in Scotland’s population and the ensuing rapid urbanisation , which was especially dense across the country’s central belt and was particularly rapid in Glasgow, was of central importance to the analysis of capital punishment for property offences. Of the total capital convictions at the Western Circuit between 1810 and 1829, around 90% were for property offences. Furthermore, executions for property offences per 100,000 head of Scotland’s population rose from 0.2 in the 1750s to 1.4 in the 1820s at the Western Circuit. Comparably, the figures for murder presented a much less dramatic increase, rising from 0.08 in the 1750s to 0.1 in the 1820s. In addition, the figures for the Northern Circuit show a reverse pattern as executions for property offences per 100,000 head of Scotland’s population decreased from 2.1 in the 1750s to 0.2 in the 1820s. Therefore, unlike the caveat presented during the mid-eighteenth-century peak, the situation in the early nineteenth century reinforces King and Ward’s argument that executions for property offences were markedly higher in the centre than on the peripheries. 20

In terms of comparing Scotland and England , both countries evidently witnessed rising numbers of capital convictions in the early nineteenth century. However, English crime historians have pointed towards a widening of the gap between the number of people capitally convicted and the number who were subsequently executed. 21 Gatrell argued that the authorities could no longer plausibly execute 56% of offenders as they had done in the 1780s and thus the system became increasingly unworkable. 22 However, an analysis of Scotland again presents a different situation and a fresh perspective from which to view this British problem. The proportion of those capitally convicted who were subsequently executed had consistently been 60% or above since the 1770s and, if we remove the executions and remissions for treason following the unrest in 1820, the figure was still 52% in the 1820s. Therefore, this study enhances the argument briefly made by Crowther, namely that, rather than keeping executions to a socially acceptable level, as Gatrell suggested, there were fewer capital convictions in Scotland and thus, in the face of rising numbers of them, it was necessary to keep up a certain level of exemplary punishment. 23

Prior to the late eighteenth century, crime reporting in Scotland had been minimal, with the newspapers only briefly detailing the trials and executions of offenders in most cases, unless they were of a particularly sensational nature, or had occurred during the attempts to stabilise the Highlands in the mid-eighteenth century, and they offered limited journalistic opinion. Furthermore, the moral panics that had characterised English crime reporting in the mid-eighteenth century and the 1780s did not occur to the same extent in Scotland. However, this study has identified a similar panic in the early nineteenth century in Scotland. It has highlighted recurring lamentations at the unprecedented numbers being sent to the scaffold whilst also demonstrating repeated calls for more severity in the face of rising levels of capital convictions. This desire for some further punishment beyond the death sentence offers a potential explanation for the increased use of crime scene executions in Scotland in the early nineteenth century.

Between 1740 and 1834, a total of 53 criminals were sentenced to be executed at or near the scene of their crime in Scotland. There had been a concentration of cases in the mid-eighteenth century, particularly following trials before the Northern Circuit. In addition, 32 of the total 53 cases, over 60%, occurred between 1801 and 1834, thus demonstrating that the penal option was primarily exercised at peak times of executions more widely. In his investigation of crime scene executions in England , Poole found that they were more of an eighteenth-century feature which declined after the 1790s, apart from some sporadic cases in the early nineteenth century. 24 Therefore, the concentration of crime scene executions in Scotland in the first third of the nineteenth century presented not only their reintroduction into Scotland’s penal cache, but also an entirely different pattern to practices in England. Chapter 5 highlighted the changes that gradually occurred to the location of public executions, with the common place shifting from urban peripheries to outside the places of confinement by the end of the eighteenth century. In turn, there was a decline in the need for traditional elements of the public execution such as the lengthy procession of both the condemned and the crowd to the scaffold , a practice which had previously attracted criticism. However, in a recent study the author has demonstrated that crime scene executions provide a rethinking of this narrative of the long-term decline in older gallows culture as they often required a lengthy procession and the authorities frequently incurred further logistical expenses. 25 From a reading of Home Office records and the newspapers it is evident that the courts intended crime scene executions to be stark and lasting examples, particularly in towns unaccustomed to the public execution spectacle, and were willing to forego more modern concerns for efficiency to achieve this end.

It is important to briefly note that by the end of the period under investigation here, the use of capital punishment in Britain had undergone major changes judicially, ideologically and practically. The number of offenders executed in Scotland, which had doubled between the first and second decades of the nineteenth century and had risen further in the 1820s, halved in the 1830s. Furthermore, comparable to the situation in England , by the 1830s murder was the predominant crime sending offenders to the scaffold as property offenders increasingly received the non-capital punishments of transportation and prison sentences. In addition, while there were still discussions over the believed prevalence of certain crimes within the newspapers, their attention increasingly turned towards debates over the reform of the capital code north and south of the border. Furthermore, the increased and concentrated use of crime scene executions was a distinct Scottish response to the problem of rising numbers of capital convictions in Britain in the first third of the nineteenth century. However, their decline and cessation was also explicitly linked to the wider and longer-term dismantling of older public execution practices explored throughout, which eventually culminated in the transfer of executions to behind the prison walls in 1868.

In addition to providing an extensive study of the use of the death sentence in Scotland, this study has also conducted the first in-depth investigation into the post-mortem punishment of the criminal corpse . Whilst acknowledging that Britain was unique in its placing of post-mortem punishment at the centre of the criminal justice system with the passing of the Murder Act, it is important to explore the similarities and distinctions in its use north and south of the border. Hurren has demonstrated that, in England , criminal bodies could be used as a lucrative means for medical men to charge entrance fees for the dissections and in turn that they could attract large audiences. 26 However, Chap. 6 showed that in Scotland it was the main universities of Edinburgh, Glasgow and, to a lesser extent, Aberdeen who had a monopoly on the supply of executed criminals with over 76% of the bodies being handed over to one of their professors of anatomy. Thus, while Scottish criminal dissections were still conducted before an audience, this was a different, and predominantly medical, public compared to the one often found in England.

Although the number of criminal corpses yielded by the Murder Act was not enough to adequately supply the universities, and there is evidence of their acquiring cadavers through several other means, the bodies were used for pedagogical purposes in the teaching of anatomy courses. Furthermore, they were used to conduct original research into areas such as the cause of death when a person was hanged and the effects of blood congestion upon the brain. In addition, as capitally convicted criminals in Scotland had around a month to wait between their sentencing and execution, there is evidence that special arrangements were made for certain dissections . For example, Monro tertius rearranged his course so that the parts looking at the female anatomy would occur during the week before he received the body of Barbara Malcolm in 1808. Therefore, this study provides some reinforcement to the argument made by Cunningham that, by the end of the eighteenth century, dissection was intended to show the complexity of the human body and that anatomical demonstration had become more of a teaching event. 27 Within this, there was certainly scope for original research using criminal bodies in the main Scottish universities, despite their limited numbers.

The Murder Act did not stipulate which offenders should be subjected to dissection and which to hanging in chains and thus the decision was left to the discretion of the judges. Chapter 7 demonstrated that the proportion of capitally convicted murderers who were sentenced to be hung in chains was comparable in England and Scotland but demonstrated that the chronology of the punishment in Scotland needed to be further examined. Despite occupying a similarly central role in the criminal justice system as dissection in the two decades following 1752, gibbeting disappeared in Scotland after 1779, apart from one case in 1810. Comparatively, although gibbeting was used on a lesser scale than dissection, the collapse of the punishment in England occurred later, in the early nineteenth century. Chapter 7 offered potential explanations for this, a key one being the importance of location. In England, criminals could be gibbeted miles away from the place at which they were executed. However, if a criminal was to be hung in chains in Scotland they were always gibbeted at the place of execution.

This study has demonstrated that the gradual changes that occurred to the location of public executions more generally were crucial in the disappearance of gibbeting after 1779. For example, the circuit cities of Perth , Aberdeen , Inverness , Glasgow and Ayr had all witnessed the use of hanging in chains between the mid-eighteenth century and the late 1770s. However, crucially, all these cases had occurred prior to the gradual shift in the common place of execution across Scotland from peripheral areas, perhaps more suitable to be used as gibbet sites, to locations closer to the places of confinement that were often in urban centres. In addition, Alexander Gillan’s case, which marked the final gibbeting in Scotland in 1810, occurred at around the same time as the increased and concentrated use of crime scene executions. The case stood out among the black catalogue of murders that had occurred across the period under examination here and the brutality involved was clearly a key factor that impacted upon the judges’ decision. However, significantly, the rhetoric deployed in Gillan’s case was comparable to that found in other crime scene hangings, namely that the judges explicitly stated their intention to demonstrate the long arm of the law in this remote area.

The Anatomy Act of 1832 removed the penal option of dissection and, to ensure the better supply of cadavers to the medical profession, it made available the unclaimed bodies of those dying in public institutions such as hospitals and the workhouse. While the dissection of criminals was criticised during debates over the act, it was not the practice itself that was targeted, but rather the inadequate number of bodies it yielded. However, the punishment of hanging in chains differed from dissection in that it had all but disappeared in Scotland half a century before it was finally repealed by legal statute. Furthermore, the act of 1834 had been largely prompted by the difficulties the English authorities had faced in gibbeting the bodies of Jobling and Cook in 1832. Jobling’s body had been illegally removed by his fellow colliers and Cook’s was ordered to be taken down for fear it would also be stolen. However, the argument made by Lord Suffield in parliament that gibbeting was “unsuited to the present state of public feeling” had already been used in Scotland in the late eighteenth and early nineteenth centuries. 28 For example, the judges in the case of McDonald and Black had decided to forgo the punishment of hanging in chains in 1813 out of a “consideration of the uneasiness it must occasion to the innocent neighbourhood.” 29 Again, this can be linked to the location as they were to be executed at the scene of their crime, which was only a couple of miles outside of Edinburgh’s city centre. An analysis of the earlier disappearance of gibbeting in Scotland serves to further demonstrate that, despite the potential for comparison with practices in England , Scotland was unique in its implementation of post-mortem punishment following the passing of the Murder Act.

In conclusion, this book has provided an original and pioneering study of capital punishment in Scotland between 1740 and 1834. It has progressed beyond the filling of a scholarly gap and has instead demonstrated that a study of the unique Scottish experience can advance, and challenge, the broader historiography focused upon the changing nature of capital punishment between the mid-eighteenth and early nineteenth centuries. Through an in-depth investigation into post-mortem punishment, an area previously neglected by crime historians, the current research has established an intermediate stage within the meta-narrative of the decline in the public punishment of the body. In addition, a key strength of this study is that it has provided the most extensive analysis of the administration of capital punishment in Scotland between the mid-eighteenth and early nineteenth centuries to date. In focusing upon the whole of Scotland across almost a century, the research has highlighted the importance of geographical context, population growth and industrialisation in affecting the use of the death sentence in different areas at varying intervals. Furthermore, whilst demonstrating Scotland’s distinctiveness, it has also explored the potential for comparison with practices in England , an area that has been largely neglected by Scottish and English crime historians alike. In short, this study has explored the journey of the Scottish malefactor from the courtroom to the gallows and, in some cases, to the dissection table or the gibbet cage. However, in doing so, the current narrative hopes to have demonstrated the potential for future scholarship to develop Scotland’s capital punishment story.

FormalPara Notes
  1. 1.

    Paul Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France (Oxford: Oxford University Press, 2014), 119; Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression: From a Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984), 71; J. A. Sharpe, Judicial Punishment in England (London: Faber and Faber, 1990), 32; Lord John MacLaurin, Arguments and Decisions in Remarkable Cases before the High Court of Justiciary and Other Supreme Courts in Scotland (Edinburgh: 1774), xxxviii.

  2. 2.

    Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany 16001987 (Oxford: Oxford University Press, 1996), 894–895.

  3. 3.

    Evans, Rituals of Retribution, 122; Spierenburg, Spectacle of Suffering, 72; Simon Devereaux, “The Abolition of the Burning of Women in England Reconsidered”, Crime, History and Societies 9 (2005): 73–98.

  4. 4.

    John Louthian, The Form of Process before the Court of Justiciary in Scotland (Edinburgh: 1732), 54; David Hume, Commentaries on the Law of Scotland Respecting Crimes, Vol. 1 (Edinburgh: 1819), 443.

  5. 5.

    David Garland, “Modes of Capital Punishment: The Death Penalty in Historical Perspective”, in America’s Death Penalty: Between Past and Present, ed. by David Garland, Randall McGowen and Michael Meranze, 30–71, 30, London: New York University Press, 2011.

  6. 6.

    Garland, “Modes of Capital Punishment”, 54.

  7. 7.

    Michel Foucault, Discipline and Punish: The Birth of the Prison (London: Allen Lane, 1977), 9–12.

  8. 8.

    Zoe Dyndor, “The Gibbet in the Landscape: Locating the Criminal Corpse in Mid-Eighteenth-Century England”, in A Global History of Execution and the Criminal Corpse, ed. by Richard Ward, 102–125, Basingstoke: Palgrave MacMillan, 2015; Nicholas Rogers, Mayhem: Post-War Crime and Violence in Britain, 17481753 (London: Yale University Press, 2012), 60.

  9. 9.

    House of Commons Parliamentary Papers [accessed 25 April 2015] House of Lords Papers, A Bill intituled an Act for better preventing the horrid Crime of Murder, (5 March 1752).

  10. 10.

    Francis Hutcheson, System of Moral Philosophy, Volume 1 (Glasgow: R. and A. Foulis Printers, 1755), 337.

  11. 11.

    David Douglas (ed.), The Journal of Sir Walter Scott, Volume 2 (Cambridge: Cambridge University Press, 1890), 219.

  12. 12.

    K. E. Wrightson, “Kindred Adjoining Kingdoms: An English Perspective on the Social and Economic History of Early Modern Scotland”, in Scottish Society 15001800, ed. by R. A. Houston and I. D. Whyte, 245–260, 250, Cambridge: Cambridge University Press, 1989.

  13. 13.

    See especially, Lindsay Farmer, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge: Cambridge University Press, 1997); Joanna Innes, “Legislating for Three Kingdoms: How the Westminster Parliament Legislated for England, Scotland and Ireland 1707–1830”, in Parliaments, Nations and Identities in Britain and Ireland 16601850, ed. by Julian Hoppit, 15–47, Manchester: Manchester University Press, 2003.

  14. 14.

    Anne-Marie Kilday, “Contemplating the Evil Within: Examining Attitudes to Criminality in Scotland 1700–1840”, in Crime, Courtrooms and the Public Sphere in Britain 17001850, ed. by David Lemmings, 147–166, 154, Surrey: Ashgate, 2012; Stephen J. Davies, “The Courts and the Scottish Legal System 1600–1747: The Case of Stirlingshire”, in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. by V.A.C. Gatrell, Bruce Lenman, Geoffrey Parker, 120–154, 149, London: Europa Publications, 1980.

  15. 15.

    Peter King and Richard Ward, “Rethinking the Bloody Code in Eighteenth-Century Britain: Capital Punishment at the Centre and on the Periphery”, Past and Present 228 (2015): 159–205, 169.

  16. 16.

    J. M. Beattie, Crime and the Courts in England 16601800 (Oxford: Oxford University Press, 1986), 584; Simon Devereaux, “Imposing the Royal Pardon: Execution, Transportation and Convict Resistance in London, 1789”, Law and History Review 25 (2007): 101–138, 120.

  17. 17.

    For a study of England, see Douglas Hay, “War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts”, Past and Present 95 (1982): 117–160.

  18. 18.

    Ian Donnachie, “Scottish Criminals and Transportation to Australia, 1786–1852”, Scottish Economic and Social History 4 (1984): 21–38, 22.

  19. 19.

    King and Ward, “Rethinking the Bloody Code”, 172.

  20. 20.

    King and Ward, “Rethinking the Bloody Code”.

  21. 21.

    Clive Emsley, Crime and Society in England 17501900. Fourth Edition (London: Routledge, 2013), 265–267.

  22. 22.

    V. A. C. Gatrell, The Hanging Tree: Execution and the English People 17701868 (Oxford: Oxford University Press, 1994), 103, 544.

  23. 23.

    M. Anne Crowther, “Crime, Prosecution and Mercy: English Influence and Scottish Practice in the Early Nineteenth Century”, in Kingdoms United? Great Britain and Ireland since 1500, ed. by S. J. Connolly, 225–238, 233, Dublin: Four Courts Press, 1999.

  24. 24.

    Steve Poole, “For the Benefit of Example: Crime-Scene Executions in England, 1720–1830”, in A Global History of Execution and the Criminal Corpse, ed. by Richard Ward, 71–101, 75, Basingstoke: Palgrave Macmillan, 2015.

  25. 25.

    Rachel Bennett, “An Awful and Impressive Spectacle: Crime Scene Executions in Scotland, 1801–1841”, Crime, History and Societies 21 (2017): 101–123.

  26. 26.

    Elizabeth T. Hurren, Dissecting the Criminal Corpse: Staging Post-Execution Punishment in Early Modern England (Basingstoke: Palgrave MacMillan, 2016).

  27. 27.

    Andrew Cunningham, The Anatomist Anatomiz’d: An Experimental Discipline in Enlightenment Europe (Surrey: Ashgate, 2010), 384.

  28. 28.

    Gatrell, Hanging Tree, 269.

  29. 29.

    NAS JC8/9/232; Scots Magazine, Monday, 7 June 1813, 36–39.

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Bennett, R.E. (2018). Conclusion. In: Capital Punishment and the Criminal Corpse in Scotland, 1740–1834. Palgrave Historical Studies in the Criminal Corpse and its Afterlife. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-62018-3_8

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