I'm looking for information on how a murder trial would have proceeded in Scotland in the early 1600s. Beyond the Justice of the Peace/Magistrate, would there have been prosecutors or an equivalent? Would there be defence/prosecution arguments etc? In short, how would it have differed from trials as they're conducted these days?
Facts or directions to further reading would be majorly appreciated. Thanks!
The primary difference between seventeenth-century trials and modern trials is that procedure was a little looser and as long as the crown was maintaining a reasonable degree of order, it didn't really matter whether every single murderer was convicted and hung. This was a time where you could pay a fee to the victim's family and be reasonably assured that they would leave the matter alone.
Law courts in Scotland differed from England even after the crowns were united under James VI in 1603. There were a number of courts that were able to try murder in various circumstances. For example, sheriffs were supposed to try only homicides when the killer was caught in the act. The the High Court of Justiciary and some regality courts (lairds with special privileges) tried pleas of the crown (murder, robbery, arson and rape). The officials in these courts were sheriffs, lords of regality and the justiciar, not justices of the peace or magistrates, of course they all had deputies who performed similar functions as the English equivalents.
The courts were still proceeding on the accusatorial system at this time. This meant that the victim or their family had to bring an action against the offender. Most officials, and the crown especially, didn't actively enquire into crimes in a given community. Additionally, forms of private justice like feuding and assythement (compensation paid to the family) were only just starting to die off as a quasi-legitimate alternative to formal, systemic administrative justice. This means that it was up to the family of the victim to seek formal prosecution if they couldn't seek vengeance or extort compensation from the killer. In the sixteenth century and into the seventeenth, the Scottish crown was more interested in the revenue of fines and pardons than it was in dispensing even-handed justice, so a lot of murderers came before the court, requested pardon and was essentially let off if they or someone else (usually a more important family member or their landlord) was able to pay the requisite fine.
Verdicts were usually decided by juries and justice in Scotland was nothing if not expedient so for a long time juries of uneven numbers were preferred in order to avoid a deadlock situation. For example, there are many instances of juries with 7, 13 or 15 members and very few with 12, which was the norm in England.
The records in Scotland are way spottier than what we have for England, and I work primarily on pre-Reformation Scotland so I'm reluctant to try to give you a run down of what exactly happened during a trial (witness depositions, etc...). I'll offer some further reading that should get you started though. I have access to all of this through my university library, but you may have to find a work around to get to some of it. Apologies.
*Pitcairn, Robert, ed. Criminal trials in Scotland, from AD 1488 to AD 1624: embracing the entire reigns of James IV, James V, Mary Queen of Scots, and James VI. Edinburgh: Bannatyne Club, 1833
*Dawson, Jane E. A. Scotland re-formed, 1488-1587. Edinburgh: Edinburgh University Press, 2007.
*Godfrey, A. M. Civil justice in renaissance Scotland: the origins of a central court. Leiden; Boston: Brill, 2009.
*Kilday, Anne-Marie. Women and violent crime in enlightenment Scotland. Woodbridge: Royal Historical Society/Boydell Press, 2007.
*Wasser, Michael B. ‘Defence counsel in early modern Scotland: A study based on the High Court of Justiciary’. Journal of Legal History 26, no. 2 (2005): pp. 183-201
*Wasser, Michael B. ‘Violence and the central criminal courts in Scotland, 1603-1638’. Unpublished PhD Thesis, Columbia University, 1995.
*Dickinson, William C. ‘The high court of justiciary’. In An introduction to Scottish legal history. Edinburgh: Stair Society, 1958.
*Lenman, B. and G. Parker. ‘Crime and Control in Scotland, 1500-1800’. History Today (1980).
*Sellar, W. David H. ‘Law, courts and people’ in A tale of two towns: a history of medieval Glasgow. Edited by Neil Baxter, pp. 30-37. Glasgow: Neil Baxter Associates on behalf of Glasgow City Council. 2007.
*Smith, J. I. ‘Criminal procedure’. In An introduction to Scottish legal history. Edinburgh: Stair Society, 1958.