From the Archive: Records held by Highland Archive Centre offer fascinating insight into crime and punishment in Inverness's courts
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Reference to crime and punishment can be found in a variety of records including church records (for example dealing with illegitimacy and anti-nuptial fornication) and school records (such as truancy).
Today we are going to be looking specifically at the official court records that dealt with crime including the High Court, sheriff court and burgh court.
The High Court was established in Scotland in 1672. This was the supreme criminal court with exclusive jurisdiction over serious crimes such as murder, treason, heresy, counterfeiting, rape etc.
As it was dealing with the most serious crimes, punishments available included the death penalty and banishment. The Highland Archive Centre holds the papers involved with the processing of these crimes from 1729-1838.
An example of this can be seen with the sentence of banishment which was handed down to Duncan Kennedy (alias MacGillispick Ban) who was found guilty of cattle stealing in 1764 – a serious crime. The ‘Sentence of Banishment’ document reads: “MacGillispick Ban to be carried from the bar back to the Tolbooth of Inverness therein to remain till a proper opportunity offer for transporting him to one or other of his Majesty’s plantations in America… [His Lordship] hereby banishes him for the term of fourteen years.”
If he attempted to come back to Scotland within that 14-year period the sheriffs had the power to transmit him from sheriff to sheriff until he is brought to and incarcerated within the said Tolbooth of Inverness.
He would then be “publickly whipt throw the streets of Inverness by the hands of the common hangman receiving the usual number of stripes on his back at the accustomed places and usual time of day and to be thereafter recommitted prisoner to the said Tolbooth therein to remain till another opportunity offers for transporting him.”
Next came the sheriff court which oversaw criminal and civil cases, solemn or summary trials and lesser crimes than the High Court. Crimes the sheriff court dealt with included theft, assault, arson and debt. The process papers available here range from 1705-1898.
A ‘warrant of commitment’ was issued by the sheriff court against Archibald Chisholm of Strathglass on October 10, 1750. He had been brought before the sheriff for using the feligbegg contrary to law; he had been caught wearing a kilt contrary to the Disarming Act (a law passed after the Battle of Culloden which included a section called the Dress Act prohibiting the wearing of traditional Highland dress; the act was repealed in 1782).
For this offence, Archibald Chisholm was to be ‘committed’ as a prisoner within the Tolbooth of Inverness for six months.
The burgh court dealt with minor offences that were committed within Royal Burghs. Examples of crimes found in the records include stealing fruit, breaking windows, losing three horses, absence from guard duty and allowing boundary dykes to deteriorate so that they fall on neighbour’s ground.
The burgh court also often dealt with cases referred from the Kirk Session such as adultery, pre-nuptial fornication, irregular marriage and witchcraft. Minutes of the burgh court are available for the period 1621-1879 and the process papers cover 1648-1880.
The documents which make up the court papers held by the Highland Archive Centre are a fascinating and rich resource highlighting how crimes were dealt with and what punishments could be issued to those who found themselves on the wrong side of the law.
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