Contextualising the Punishment of Death

Abstract

Legal writers of the late eighteenth and early nineteenth centuries recognised not only the differences between the legal systems north and south of the border, but also the differences in their use of capital punishment. An awareness of Scotland's lesser recourse to the death sentence was praised in the legal commentaries cited in Chap. 2 and Scots law was held up as a bastion of Scottish identity that had been maintained after the Union. 1 However, in conducting the first extensive examination of the court records, as well as sources rich with qualitative material such as newspapers, state papers and Home Office records, this study demonstrates that Scotland witnessed significant fluctuations in its execution rate and a more frequent recourse to the death sentence for particular crimes in certain decades. This chapter will examine three key periods in Scotland's capital punishment history. It will demonstrate that, while there were discernible similarities north and south of the border in terms of an increase in the sheer number of executions as well as an intensification of debates over criminality, the drivers behind this and the responses to it in Scotland differed markedly. In turn, an investigation into the previously neglected Scottish experience offers a unique perspective of Britain's use of the death sentence at these three crucial junctures. The opening section of this chapter will demonstrate that the mid-eighteenth century was a focal period in Scotland's penal history. It was a time when the country, particularly the Highlands, was reeling from the events of the 1745 Jacobite Rebellion (the '45) and the British government was determined to penetrate the CHAPTER 3