Commission of Justiciary

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A commission of justiciary was a method of law enforcement employed in Scotland, in particular in the 16th and 17th centuries.

Scotland Country in Europe, part of the United Kingdom

Scotland is a country that is part of the United Kingdom. Sharing a border with England to the southeast, Scotland is otherwise surrounded by the Atlantic Ocean to the north and west, by the North Sea to the northeast and by the Irish Sea to the south. In addition to the mainland, situated on the northern third of the island of Great Britain, Scotland has over 790 islands, including the Northern Isles and the Hebrides.

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In an era when the practical reach of central government was limited, the issuing authority (generally the king) would issue a commission to a single individual or a number of individuals authorising and requiring him or them to take steps to deal with the particular problem with which the authority was concerned. The problem might consist in a particular crime, a particular criminal or criminals, or wider local disorder.

Commission of fire and sword

The powers granted under such commissions were extensive and draconian and often included the power to administer summary justice, with no subsequent obligation to account for the steps taken. The archetype was the “commission of fire and sword” which features prominently in clan history in the Highlands. A commission granted in 1649 by the estates of parliament in favour of the Earl of Sutherland contains characteristic language, authorising a number of individuals:

Parliament of Scotland legislature of the Kingdom of Scotland

The Parliament of Scotland was the legislature of the Kingdom of Scotland. The parliament, like other such institutions, evolved during the Middle Ages from the king's council of bishops and earls. It is first identifiable as a parliament in 1235, during the reign of Alexander II, when it was described as a "colloquium" and already possessed a political and judicial role. By the early fourteenth century, the attendance of knights and freeholders had become important, and from 1326 commissioners from the burghs attended. Consisting of the "three estates" of clergy, nobility and the burghs sitting in a single chamber, the parliament gave consent for the raising of taxation and played an important role in the administration of justice, foreign policy, war, and all manner of other legislation. Parliamentary business was also carried out by "sister" institutions, such as General Councils or Convention of Estates. These could carry out much business also dealt with by parliament – taxation, legislation and policy-making – but lacked the ultimate authority of a full parliament.

Earl of Sutherland Wikimedia list article

Earl of Sutherland is a title in the Peerage of Scotland. It was created circa 1230 for William de Moravia and is the premier earldom in the Peerage of Scotland. The Earl or Countess of Sutherland is also the Chief of Clan Sutherland.

“to search, seek, take and apprehend the aforesaid persons, rebels and fugitives above-named, wherever they can be apprehended; and if they can be captured, to put them to the knowledge of any assize for the crimes aforesaid and to administer justice upon them and execute them to the death; and, if need be, to raise fire and sword and to burn their houses and slay them in case they make opposition or resistance in the taking and apprehending.” [1]

Notable examples of commissions of fire and sword include:

Clan Galbraith noble family

Clan Galbraith is a Scottish clan. The clan does not have a chief recognised by the Lord Lyon King of Arms. Because of this, the clan is considered an armigerous clan, and as such Clan Galbraith has no standing under Scots Law. The clan-name of Galbraith is of Gaelic origin, however its meaning denotes the bearer as of British origin, as opposed to Gaelic. The early Galbraiths were centred in the Lennox district, which spans the Highland and Lowland border of Scotland. The 17th chief of the clan brought ruin to the clan in the late 16th and early 17th century, and eventually lost his lands and fled Scotland for Ireland. His grandson, the 19th chief, was the last chief of Clan Galbraith.

Clan Gregor

Clan Gregor or Clan MacGregor[ˈkʰl̪ˠãũn̪ˠ ˈɣɾʲikɪɾʲ]) is a Highland Scottish clan that claims an origin in the early 800s. The clan's most famous member is the legendary Rob Roy MacGregor of the late 17th and early 18th centuries. The Clan is also known to have been among the first families of Scotland to begin playing the bagpipes in the early 17th century.

Kenneth Mackenzie, the first Lord Mackenzie of Kintail, was a Highland clan chief who secured for himself and his heirs the entirety of the Isle of Lewis in the Outer Hebrides and successfully pursued a bloody feud with the Macdonells of Glengarry.

Political control

A system of this kind was clearly open to abuse and was not infrequently employed by the great magnates to carry on personal feuds or campaigns of self-aggrandisement. In the late 16th century there was something of a power struggle between the privy council and the gentlemen of the king’s chamber for control over the process, resulting in orders by the council in 1587, 1594 and 1598, which cancelled all existing commissions, and in 1608, which cancelled commissions that permitted the bearing of fire-arms. A statute in 1592 also sought to put an end to general commissions (as opposed to particular commissions targeted against specific individuals), and the establishment of a register of signet commissions in 1608 is further evidence of the council’s (ultimately successful) campaign to regularise their issue. [2]

The Privy Council of Scotland was a body that advised the monarch.

Witch-hunting

One form of commission of justiciary that survived until well into the 17th century was that employed for the purpose of witch-hunting. [3]

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Bute witches group of Scottish women

The Bute witches were six Scottish women accused of witchcraft and interrogated in the parish of Rothesay on Bute during the Great Scottish Witch Hunt of 1661–62. The Privy Council granted a Commission of Justiciary for a local trial to be held and four of the women – believed by historians to be Margaret McLevin, Margaret McWilliam, Janet Morrison and Isobell McNicoll – were executed in 1662; a fifth may have died while incarcerated. One woman, Jonet NcNicoll, escaped from prison before she could be executed but when she returned to the island in 1673 the sentence was implemented.

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Maud Galt was a lesbian accused of witchcraft in 17th century Kilbarchan, Scotland.

References

  1. K.M.Brown et al., The Records of the Parliaments of Scotland to 1707 (St. Andrews, 2007), accessed on 9 July 2008
  2. Julian Goodare, The Government of Scotland, 1560-1625 (Oxford University Press, 2004), at pp.199-200
  3. Julian Goodare, The Scottish Witch-hunt in context (Manchester University Press, 2002)