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Criminal Law and Religion in Post-Reformation Scotland

Document Cited authorities 3 Cited in Related
Vincent
Published date01 May 2012
DOI10.3366/elr.2012.0102
AuthorChloë Kennedy
Date01 May 2012
Pages178-197
INTRODUCTION

In this article I assess how Scots criminal law was influenced by the Protestant theology that came to prevail in Scotland during the sixteenth and seventeenth centuries. Following the Reformation, which is generally accepted as having occurred in 1560,1

H J Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (2003) 6.

Scotland officially became a Protestant nation and Calvinism was accepted as the Kirk's orthodox doctrine.2

Confession of Faith Ratification Act 1560. Acts were also passed to abolish Papal jurisdiction (Papal Jurisdiction Act 1560) and to criminalise various Roman Catholic practices, for example the Abolition of Mass Act 1560.

 I argue that the content, administration and structure of the criminal law were all rendered characteristically moralistic by the prominence of Calvinism and its associated regime of social discipline. This argument discloses several important and under-appreciated points about Scots criminal law. Rather than simply confirming the well-documented link between law and religion3

See, for example, H J Berman, The Interaction of Law and Religion (1974); J Witte and F Alexander (eds), Christianity and Law: an introduction (2008); P Cane, C Evans and Z Robinson (eds), Law and Religion in Theoretical and Historical Context (2008); R O'Dair and A Lewis (eds), Law and Religion (2001).

 or between religion and penology,4

For example, J Witte and T Arthur, “The three uses of the law: a protestant source of the purposes of criminal punishment?” (1993) 10 (2) Journal of Law and Religion 433; L Throness, A Protestant Purgatory: Theological Origins of the Penitentiary Act, 1779 (2008) and T Gorringe, God's Just Vengeance: Crime, Violence and the Rhetoric of Salvation (1996).

 it shows that the criminal law was responsive to specific religious changes that occurred in Scotland during the era in question, both at an ideological level and within the national Kirk

Not only does this finding contribute a new dimension to our understanding of the criminal law of this age, it also has prospective implications for the way we understand contemporary Scots criminal law. The moralistic features of the law at this time could be the potential forbearers of certain aspects of contemporary Scots criminal law which are, at least nominally, peculiarly moralistic. Examples include the now-defunct power of the High Court to declare immoral conduct criminal,5

G H Gordon, The Criminal Law of Scotland, 3rd edn by M G A Christie, vol 1 (2000) paras 1.15-1.45.

the use of normative language and conceptions of responsibility and guilt as evidenced by the continued reference to dole or some form of “general mens rea”6

Gordon, Criminal Law (n 5) paras 7.02, 7.08, 7.47 and 7.60.

 and the mentes reae of “evil intent”,7

Smart v HMA 1975 JC 30. Cf Lord Advocate's Reference (No 2 of 1992) 1993 JC 43; Gordon, Criminal Law (n 5) para 29.30.

 “wicked intention”8

Drury v HM Advocate 2001 SLT 1013.

 and “wicked recklessness”.9

Drury v HM Advocate 2001 SLT 1013; Gordon, Criminal Law (n 5) paras 7.68, 23.12-23.13, 23.19 and 23.21; Lord Goff, “The mental element in the crime of murder” (1988) 30 LQR 30 at 51-59.

 Of course, this speculative claim cannot be supported fully within the confines of this article, but the possibility of such a genealogical link is certainly suggested by the prominence of moralism within the law at this early period and the fact that there are terminological similarities with the contemporary law

Given that the central claim of this article is that Scottish Presbyterianism made an impact on the criminal law as a whole, the analysis found herein aspires to a similar holism. Consideration is therefore given to the substantive law, the way it was applied in practice and various features of the attribution of criminal responsibility.

 THE SUBSTANTIVE LAW

One of the key concerns of the post-Reformation Scottish Kirk was the Calvinist dictate that there should be “ecclesiasticall discipline uprightly ministred, as Gods Word prescribeth, whereby vice is repressed, and vertue nourished”.10

J Knox, The Historie of the Reformation of the Church of Scotland Containing Five Books: Together with Some Treatises Conducing to the History (1644) 226. The Scots Confession of Faith (ch XVIII) and The First Booke of Discipline contain similar provisions. (Church of Scotland, The First and Second Booke of Discipline together with Some Acts of the Generall Assemblies, Clearing and Confirming the Same: and an Act of Parliament (1621) 54).

As shall be seen in the subsequent section, this concern led to an agenda of social control and moral discipline that had implications for the way that the secular criminal law was applied. In addition, it made a significant impact on the scope of the criminal law and the type of behaviour that was legally proscribed. The most obvious sign of this impact is in the wave of criminalisation that occurred in the aftermath of the Reformation. During this time, on top of the legislation enacted to outlaw Roman Catholic practices, a number of statutes were passed that declared various sins which offended against Church morality to be secular crimes

Acts of Parliament were passed against blasphemy,11

1581 APS III 212 c 5, though there was an earlier statute criminalising blasphemy (1551 APS II 485 c 7).

witchcraft,12

1563 APS II 539 c 9.

 incest,13

1567 APS III 26 c 15.

 adultery14

1563 APS II 539 c 10. There was also a pre-Reformation act against incest (1551 APS II 486 c 12).

 and fornication.15

1567 APS III 25 c 14.

 These Acts, and also those criminalising violation of the Sabbath,16

1579 APS III 138 c 70.

 were passed at the behest of the General Assembly, the highest court of the Church of Scotland, which in 1562 made a supplication to the Queen for punishment of all vices commanded by the law of God to be punished and not yet commanded by the law of the realm.17

B A Peterkin (ed), The Booke of the Universall Kirk of Scotland (1839) 1:21.

 Clearly, the fact that the General Assembly could exercise such persuasive influence over the legislature indicates the secular authority's commitment to the Kirk's aim of creating a Godly state in which moral discipline was enforceable and sin and crime were concomitant. The influence of Calvinist ideology over the substantive criminal law, however, can also be perceived at a more subtle level. Close examination of two of the most authoritative texts on Scots criminal law of the era, Balfour's Practicks (1579)18

P G B McNeill (ed), The Practicks of Sir James Balfour of Pittendreich (Stair Society vols 21 and 22, 1962 and 1963).

 and Sir George Mackenzie's Matters Criminal (1678),19

G Mackenzie, The Laws and Customes of Scotland in Matters Criminal: Wherein it is to be Shown how the Civil Law, and the Laws and Customs of Other Nations do Agree With, and Supply Ours, with a new introduction by J Chalmers, C Gane and F Leverick (2005).

 reveals that both authors’ conceptions of the principles of the criminal law and their discussions of particular crimes bear the mark of Protestant theology and Calvinist doctrine Principles of the criminal law

Balfour's Practicks provide a succinct digest of the law and materials which were recognised in Scots criminal law at the time of its publication20

D M Walker, A Legal History of Scotland, Volume 3: The Sixteenth Century (1995) 13.

but unfortunately they contain little by way of general principles. For the most part the Practicks are simply a description of the customary law of Scotland and, where applicable, its statutory enactment. Notwithstanding this, the introduction to the Practicks harbours some resemblance to post-Reformation natural law theory, which had its roots in Scholasticism21

K Haakonssen, Natural Law and Moral Philosophy: from Grotius to the Scottish Enlightenment (1996) 15.

 – the medieval school of philosophy that attempted to reconcile classical philosophy and Christianity. In the opening of his treatise Balfour writes:22

Balfour, Practicks (n 18) 1.

The law is devydit in thré parties; in the law of nature, the law of God, and in the positive law. The natural law is that quhilk is written be the finger of God, or of nature, in the heart of man, and quhilk nature hes gevin and ingenerate in all leiving creatures: the law of God is that quhilk is reveillit, and declarit in his maist halie will and word : the law positive is this quhilk is made be man allanerlie.

 This statement accords with the Scholastic philosopher Aquinas’ division of law into the law of nature, the law of God and the positive law. As mentioned above, Scholasticism experienced a revival within Protestant natural law theory in the sixteenth and seventeenth centuries, so Balfour's adoption of this formulation shows that his general theory of law is in keeping with the theological philosophy of the age. Moreover, Balfour's taxonomy of law resembles Calvin's own writings on the matter. In his Institutes of the Christian Religion, Calvin states that man has knowledge of the natural law (which he believes is the basis of God's moral law) because it has been written on his heart.23

J Calvin, Institutes of the Christian Religion book 2 ch 2.22.

 Likewise he writes that the law of God is revealed in his word, specifically in the Decalogue,24

Book 2 ch 8.1.

 and acknowledges and approves of man's temporal laws, so long as they complement God's law and ecclesiastical discipline.25

Book 3 ch 11.3, 20.

Despite that Balfour's introduction displays a degree of conceptual affinity with Calvin's writings and Protestant theology, the rest of the Practicks is largely devoid of philosophical exposition. In contrast, Mackenzie's Matters Criminal contains many instances where Calvinist doctrine appears to have influenced his account of the law. Of course, the fact that Matters Criminal is so overtly moralistic, particularly in comparison to Balfour's Practicks, naturally...

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