CRIME AND PUNISHMENT

The idea of prison as a form of punishment was virtually unknown in mediaeval Europe and Scotland was no exception. Wrongdoers were held until they could be disposed of by execution, banishment or mutilation, or until some other solution such as cash compensation to the victim could be decided upon. There were no national laws although the Kingdom of Galloway had its own code which lasted until at least 1380. This was basically a system of graduated fines designed to prevent blood feuds, for example, ten cows for cutting off an earl's finger. The Border Laws had their own peculiarity, "death was no excuse for non-appearance in court".

Burghs operated like little independent republics and made their own laws, generally these covered the everyday running of the town; how to conduct business, the price of candles, where to sell chickens, the tax on cloth. Gradually more and more burgh charters incorporated the King's rights of justice, including in some instances the Four Pleas of the Crown, murder, rape, robbery and fire raising.

The Burgh Court Book of Dumfries starts in 1506 and by far the largest number of cases concern debt. One in five, however, is a crime of violence, assaulting one's neighbour or something similar and the entries often contain a surety that the offence will not happen again.

Punishments meted out by a burgh must have been better than the judgements given out by barons or hereditary sheriffs of the county whose power was absolute. Sometimes they would hang the accused first and afterwards call in the jury to convict. No court of appeal was needed in such cases! It cost money for the baron to keep and feed prisoners in some fearsome pit or dungeon so they were seldom occupied for very long. Justice was summary and swift and the object of the captor was to get rid of the offender with the least trouble and delay; to have him "clenzit or conviktt" freed or hanged or out of sight in the next parish. Transportation to the colonies was just an extension of the old system and the use of prison and the loss of liberty as a punishment in itself is a more recent concept. (Transportation was not abolished until 1867.) Threave Castle still has its dreadful pit where victims languished without hope and the Douglases used to boast that their gallows knob was never without a tassel.

Dumfries Tolbooth. Demolished in the 1930s

Dumfries until 1579 must have locked its sundry debtors up in the Tolbooth, the council house, where Burton's is, but in that year the town applied to the King to build a prison or pledge house of three houses height on the north side of the Old tolbooth, ie. On the site of Thomson's jewellers. They argued that the most secure part of the prison would be in the middle or upper part of the building, to stop the possibility of prisoners working under the wall and under-mining it in order to escape. They also pointed out that a basement prison had to have slits for air whereby, without the jailor or lockman's knowledge, the friends of the prisoners could talk to them and help them to escape. The building was completed in 1583, and remained in use until 1802. It was taken down in 1808 and one or two stones from it were incorporated into the Midsteeple during its facelift of 1909. The entrance archway of this prison is now at the top of the steps up to the museum from Primrose Street.

Dumfries built its jail just in time, for an Act of Parliament in 1597 made it compulsory for each burgh to have a prison strong enough to "detain all persons who break his majesty's laws". The building, however, was never very secure, a feature typical of most Scottish prisons of that age.

In 1682 the magistrates had to transfer a man on a murder charge to Edinburgh because several Border friends daily threatened to force the prison and the town was put to considerable expense to guard him. On 8th August 1700 John Corsane put a man in jail for debt. The debtor broke prison and got away without leaving anything to meet the debt, except two graves in St Michael's churchyard, which of course he could not conveniently carry with him. Corsane applied to the Kirk Session and got the graves transferred to his name, not necessarily for his own use, but they were marketable and helped reduce the debt!

Forty years later the prison was almost destroyed. On the 16th September 1742, Rood Fair Saturday, Provost Bell was walking down the High Street when he saw a gypsy woman steal a pair of stockings from one of the piles of goods for sale outside the shop of William Dodd, a merchant. To put your goods on the pavement was standard practice for shopkeepers, particularly on market days, as shops had small windows and were dimly lit inside. This only died out at the turn of the century. Dodd chased her and the stockings were found under her plaid. William Stewart, one of the burgh officers, took her to prison and she told John Donaldson the jailor that she was called Mary McDonald and that she came from Glasgow. As she was being locked up she begged for a piece of candle to light her to bed. There were three other prisoners on the premises at this time, one for theft and two for debt who seem to have had the run of the place. The jailor checked that everything was in order, locked up the prison and went home to bed. During the night the two debtors smelt burning and traced it to the door of the gypsy's cell.

There was no reply when they shouted and they could see through a chink in the door that the bed was on fire. They tried to raise the alarm but it was almost 11 o'clock before the jailer was roused and by this time the fire was out of control. The whole of the upper storey was ablaze and the roof timbers fell onto the streets below. The fire was so fierce that it threatened the adjacent building and there were fears for the safety of the Tolbooth which was separated from the prison only by a narrow street. The Provost ordered the charter chest to be removed to Baillie Dickson's shop for safe keeping, and the next day when the fire was out he ordered a full inquiry. Only a small part of the woman's body had not been consumed by the flames. The fire does not seem to have spread. When the repairs were carried out, the roof was arched with brick under the slates to make it more secure.

In 1790 there were 70 persons in Dumfries jail. The statistics are interesting.
Debt 23,
Theft 17,
Housebreaking 4,
Desertion 5,
Fraud 2,
Contumacy 1,
Bastard Children 2,
Forgery 1,
Murder - tried and acquitted - 1,
Carrying off voters at the General Election 6,
and Petty crime 8.
(Dr Burnside records that the canvas for the election was keen and extraordinary!) Of the 70, only 23 were inhabitants of Dumfries.

The Tolbooth. In the 1930s it was MrsGologoly's junk shop

What were punishments like in Mediaeval times? The short answer is hard.

Beggars fared particularly badly. An Act of James II in 1457 forbade anyone between the ages of fourteen and seventy to beg unless provided with a token from the sheriff or baillie certifying that he could not work. Beggars without tokens were branded and banished. There are numerous Acts against beggars, vagrants, gypsies and sailors pretending to have suffered shipwreck. Cropping of ears was a common punishment and if they returned to the district they risked death by hanging. Life in Scotland was precarious for the mass of the people. Most lived on the edge of starvation and there were numerous paupers.

Peat stealers had their cheeks branded with Dumfries burgh clock key which was heated in a fire of the stolen peats. The burgh court dealt with all crimes except ones which involved a capital sentence or transportation. On 29th January 1668 a woman who had gossiped too much about her neighbour was ordered to be put upon the Tron (the town's weighing beam situated on the Plainstones below the Midsteeple) "with great letters of "SCANDALL" written on her heid". In 1662 a man who forged the handwriting of Major Thomas Carruthers in a letter to George Maxwell of Munches was imprisoned until the following day and then placed in the pillory with the forged letter and a label pinned to his breast. Finally he was conveyed beyond the Burgh roods by the common executioner. Sometimes this event was carried out with great ceremony and a drummer accompanied the party.

For capital offences, the first justiciary court opened in Dumfries in 1662. Most of the offences are cattle lifting. Most are acquitted but two brothers called Irving are convicted of "stouthrief", using violence to steal twelve sheep. They are sentenced with four others to be taken to the place of execution in Dumfries (at Marchmount) and "ther to be hangit by the heid until deid". Another, Bauld Jok, who had only stolen five sheep, got a lighter sentence - "to be drowned till he be deid in the watter of the Nith". This was regarded as a less ignominious end and was the usual fate for women.

Punishments were the branks, an iron helmet with a spike to enter the mouth and prevent speech - a favourite punishment for slanderers, the jougs - iron rings attached to the end of a chain fixed to a wall, the nailing of ears to the Tron, banishment, preceded by public whipping, mutilation, the pillory, the stocks and branding. These are the milder punishments, more serious penalties were beheading, drowning and tortures including wrenching the head with cords, tearing off the nails with pincers, cutting of hands and ears, cutting out tongues or boring through the tongue.

The town's dempster or common executioner was always entitled to dip his ladle into each sack of grain exposed in the town's meal market and take one scoop from each. By the enlightened and mercantile 1700s this practice was causing considerable annoyance to the town's merchants and eventually one of them, John Johnston, decided that enough was enough and stopped him. Rodger Wilson, the town's executioner, applied to the town to help him and Mr Johnston promptly took legal action against the Town Council. The matter dragged on and in the meantime Rodger Wilson died. Things came to a head in 1789 when the new executioner, Joseph Tait, petitioned the Council that his present salary was too low and he could not collect his meal dues. The town increased his pay a little but recommended to him to raise actions against the town's meal sellers. A week later he is back at the Council explaining that he cannot prosecute anyone as none of the writers in town will take up the pleas. The Council replies that it will not be troubled with any more petitions of the like (having had their fingers burnt in law actions before) although the executioner can continue if he likes at his own expense. So ends another Mediaeval quirk.

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