The Role of Women in Pursuing Scottish Criminal Actions, 1580–1650
| Date | 01 May 2020 |
| Pages | 232-250 |
| DOI | 10.3366/elr.2020.0628 |
| Published date | 01 May 2020 |
Our understanding of the role of women in Scottish criminal law during the early-modern period has been significantly advanced in recent years. Elizabeth Ewan has previously looked at the role of women in pre-Reformation Scotland in the context of interpersonal violence, particularly women being accused of assault before the sheriff courts in Aberdeen.
However, the archival records do suggest that women could raise criminal actions. Indeed, this can be shown with regard to the example of homicide cases. The records of the Justiciary Court (Scotland's central criminal court) from 1580–1650
This article will therefore review the question of women's involvement in the prosecution of crime in early-modern Scotland, with respect to those homicide actions. It will argue that the records show that women were actively engaging in raising criminal proceedings and thereby had a significant role in the prosecution of crime. In doing so, it challenges current understanding, contributing to an under-researched area of Scottish legal history.
This article will, first, provide a brief summary of the way in which actions were raised and how standing to sue in such actions was established before the Justiciary Court during the period under review. It will examine the types of roles in which women pursued in criminal actions before the Justiciary Court, as sole pursuer and as part of mixed gendered groups. This will allow for comparisons to be made regarding male pursuers in similar circumstances. The article will also take the opportunity to reflect on women's role in pursuing crime beyond the Justiciary Court. It will, finally, re-examine contemporaneous legal literature and comment on the arguments made therein.
Wider questions regarding the scope of these offences, such as the impact of conceptual ideas of Canon or Roman law, are beyond the scope of this study.
It is necessary for context to briefly explain how a criminal action was pursued before the Justiciary Court in early-modern Scotland. These procedures differed to those of the modern superior criminal court, the High Court of Justiciary.
In the early-modern period, someone wishing to bring a criminal case to the Justiciary Court had to produce an instrument setting out the formal written accusation of the crime and the substantive points of law upon which the case would be centred; these instruments were called the ‘criminal letters’ or ‘dittay’.
In addition to obtaining the criminal letters, a pursuer had to have ‘standing’, namely the legal right to raise a criminal action before the Justiciary Court.
Other individuals sometimes joined the pursuer (whether a private pursuer or the Crown) to add ‘sufficiency’ through their additional interest in justice being served. Thus, for example, a father whose son was murdered would have had standing to sue for the death, while other close family members (such as the deceased's uncle) might have joined in the prosecution to add sufficiency to the suit. The involvement of the wider family was not, however, necessary to raise a successful criminal action in the early-modern period.
The evidence already provided proves that women could raise criminal actions. However, there remains the question as to the circumstances in which they could do so. First, this article will show that women sometimes raised the action on their own, but more frequently did so in groups with other pursuers. Secondly, it will examine women's raising of criminal actions with respect to their relationships to the deceased. Finally, it will reflect on the impact of cultural and social norms on women's propensity to raise criminal actions.
The Justiciary Court records show that women were found alone and within groups in the pursuit of homicide.
Nonetheless, it is notable that in each of the aforementioned cases, the female pursuers were successful in raising the action, and neither the accused parties nor their lawyers in any of these cases raised an objection on the basis of the women's legal standing. This indicates that women had standing to raise criminal actions. It is also notable that, when women pursued a criminal action on their own, there is no discernable difference between their standing, attendance in court and relevant procedural requirements from that of single male pursuers in the same period.
The most common instance in which women pursued criminal actions was as the widow of her slain husband. Twenty-three actions, of the twenty-nine discussed above, contained a woman (on her own) pursuing for the death of her husband.
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