defeat of the clansmen at Culloden, "to crush all the Local Courts and to extend the general benetits of equal law to the low and the high, in the deepest recesses and obscurest corners." The heritable jurisdiction had been divided into regalities, ordinary baronies, and baronies which had the right of pit and gallows.
"The lowest criminal jurisdiction," says a Scotch legal author, "is what we call for Battery and Bloodwits, viz., Offences whereby a party is beaten, or blood drawn of him, but no greater harm done; and this is implied in all Baronies. But if the erection of the Barony contain a power of Pit and Gallows, it imports a jurisdiction in ordinary capital cases, but not in the excepted crimes, which go under the name of the Four Pleas of the Crown, viz., Murder, Robbery, Rape, and wilful Fire-raising. It is so called from the manner of execution of criminals, viz., by hanging the men upon the Gallows or Gibbet, and drowning the women, sentenced in a capital crime, in a pit, it not being thought decent of old to hang them."[1]
In old law Latin this right was known under the name of furca et fossa.[2] A person invested with the jurisdiction of a regality had power also in the Four Pleas of the Crown. "The sentences in civil cases are subject to the review of the Lords of Session, and in criminal to the Court of Justiciary. In criminal trials thirty days were allowed before execution of the sentence on this [the southern] side of the Forth, and forty on the other." From this appeal there was one regality which was exempt. The jurisdiction of the Duke of Argyle was absolute even in cases of life and death. From his sentences there was no appeal.[3] Each barony had its Gallows Hill, and its dempster or hangman.[4] Pennant, in 1772, saw "on a little flat hill near the village of Kilarow in Islay the remains of the gallows."[5] At Dunvegan men had been hanged on the sentence of the laird, so late as 1740. No doubt this power was sometimes most oppressively exercised. A chief who lived near Inverness was charged with having rid himself at a profit of men on his estate who had given him trouble. He charged them with theft, threatened them with the gallows, and so brought them "to sign a contract for their banishment." They were then put on board a ship bound to the West Indies, "the master paying so much a head for them."[6] In other words,
- ↑ An Essay upon Feudal Holdings, Superiorities, and Hereditary Jurisdictions in Scotland. London, 1747, p. 16.
- ↑ "Baro dicitur qui gladii potestatem habet, id est imperium merum; apud nos furcæ et fossæ nomine significamus."—Craig, De Feudis, i. 12, 16, quoted in Arnot's History of Edinburgh, p. 224.
- ↑ An Essay upon Feudal Holdings, &c., pp. 18, 28.
- ↑ Dunbar's Social Life, &c., ii. 141.
- ↑ Pennant's Voyage to the Hebrides, ed. 1774, p. 221.
- ↑ Letters from a Gentleman in the North of Scotland, i. 54.
