Acquiescence in and defiance of church discipline in early-modern Scotland LEAH LENEMAN, M.A., Ph D AND PROFESSOR ROSALIND MITCHISON, M.A., D.Litt. The Scottish Church from the Reformation held the view that a godly discipline was one of the signs of the true Church. Our paper is concerned with the exercise ofthis discipline in city panshes dunng the later seventeenth and the eighteenth centuries in sexual matters, and the response to it of individuals undergoing censure 1 Discipline involved . investigation, some sort oftrial and sentencing. This was carried out by the parish court, the kirk session, of minister and elders, with referral where necessary to the higher court of the presbytery. Because of the legalism of religious thought in the seventeenth century the session was seen not so much as a regulatory committee but as a legal court. It therefore required evidence. In general matters witnesses would make and sign statements. In sexual cases the session usually went by whether there was a pregnancy; other firm evidence would be a couple caught in the act or a voluntary confession by one of the partners. In the evaluation of statements about what had occurred the reputation of the woman would be considered. We have not found evidence of a man’s reputation being commented on, even in cases where this might have been expected. Claims that a couple committing the sexual act were irregularly married would be investigated, both by documentary evidence and by witnesses. The requirement of hard evidence meant that little attention was paid to allegations or indications ofhomosexual activity or other sexual deviations which would not result in We have already investigated church discipline in some depth in our book Sexuality andSocial Control: Scotland 1660-1780 (Oxford, 1989). but our research for that book was concerned only with rural and small town parishes. With the assistance ofgenerous funding by the ESRC, we have underaken research into city panshes. which has shed more light on the subject; our evidence in this paper comes from newresearch. 19 pregnancy.2 Since most young people left home for service in their early ’teens, cases of incest between members of the same household did not come to light. Sexual behaviour was only one aspect ofthe attempt by the Church to make society godly. The session would investigate breaches of Sabbath behaviour, marital bad relations and family discord, and general stnfe within a community mamfested in "riot” (disturbances in which blood was shed) or “scandal” (verbal abuse). There was also the category of “scandalous carriage” which covered any signs of over familiarity between the sexes All these matters called for investigation and penalty, and the change of Church government from the Restoration penod’s system ofbishop and presbytery to that after 1690 of presbytery alone makes no visible difference in the records apart from the disorder ofthe penod of change, and the longer term existence of an organised body of episcopal dissent and unemployed ministers who might supply services denied by the established Church. Until 1712 the Church could call on sheriffs to back up a sentence of lesser excommunication on the recalcitrant by imprisonment. The disappearance of this power seems to have made no difference to the degree to which lay jurisdictions might or might not act in support of ecclesiastical censure. In any case, there was considerable overlap in the membership of church and lay courts. In the seventeenth century New Aberdeen had a Justice Court, which provided a second layer of sexual discipline with particularly fierce sentences.3 The relatively large number of women whom we have found fleeing ecclesiastical discipline in New Aberdeen is probably a result of the threat of fines which they could not hope to pay and the likelihood offlogging. The general disciplining of wrong doing faded in the 173(Js and ’40s. By the mid-eighteenth century only particularly outrageous examples of misbehaviour on the Sabbath would lead to action. 2 A similar lack of concern for non-heterosexual activities is shown in rural Hungary in the eighteenth century by I.G. Toth, in “Peasant sexuality in eigfrteenth- century Hungary”, Continuityand Change, vi (1990), 43-58. 3 Gordon Desbrisay, “Menacing their Persons, Exacting on their Purses: the Aberdeen Justice Court 1675-1700”, in From Lairds to Loons: County and burgh life inAberdeenshire 1600-1800, ed. D.Stevenson (Aberdeen 1986). 20 Individuals might be censured for gross drunkenness or violent behaviour, but not otherwise receive penalties. But sexual discipline stayed on to the end ofthe 1770s and only then was generally dropped by the Church. As far as general demographic features can be ascertained for the society of early modem Scotland the country had the main features of western Europe, late marriage and a considerable proportion of both sexes never marrying. Marnage was not seen as available to those in service and most people were in this state until their mid or late twenties, living in the houses of their employers. Only when equipped with a house and employment possessed of some prospect of security was a man considered ready for marriage. So there was a large body of young adults of both sexes, capable of sexual activity and debarred from marriage. It is not surprising that there were breaches of the Church’s ruling that sexual activity should be confined to married couples. Cases normally started with an elder reporting to the kirk session that an unmarried woman or a widow in the part ofthe parish called his “bounds” appeared to be pregnant. She would be cited to appear and questioned until she admitted the pregnancy, named the man responsible and supplied information about when and where intercourse had taken place. The parish where the sin had been committed was responsible for discipline unless the relationship had been flagrant elsewhere. Sometimes the case began with a woman coming forward spontaneously to confess her condition, and, rarely, a man might report his liaison. The penalties for misbehaviour were uniformly applied by a tariff of appearances”, that is attendance on the pillar or stool through a specific number of Sunday services, and a fine of £10 Scots which might be cancelled in cases or extreme poverty. Cases of simple fornication earned three appearances, repeated slips, that is a second unmarried pregnancy, earned £6, £26 was the penalty for a trilapse or for adultery, £39 for a quadnlapse or multilapse and £52 for incest, a matter for which the Church operated a law different from that of the State (incest covered not only relationships by affinity but also by intercourse). 21 For the woman there was no way of dodging these penalties other than by flight. They were the inevitable route to acceptance back into the Church ofthe godly, but she might not be allowed to undergo them. The man named by her might deny the relationship, in which case she would be asked to produce “presumptions”, that is some sort of circumstantial evidence suggestive of a relationship: a record of close association, particularly of being alone together, “suspect posture”, a record ofgifts. These would not be enough to prove his guilt but would indicate that the woman was “ingenuous”. If there were doubt about her truthfulness she would not be allowed to go through the process of appearances and reconciliation. This was all clearly laid out in an act of the General Assembly of 1706 4 A man claiming that he had been wrongly accused could be allowed to take an oath of purgation, but only if in the judgement of the presbytery it seemed probable that he was innocent. In cases where there were presumptions against him the General Assembly recommended, as “more for edification” “that a true narrative of the case be laid before the Congregation, and intimation given that there can be no further procedure ... till God in his providence give further light”. In other words he remained under suspicion. This could affect his prospect of employment, since he would not be able to get a “testificat” of good behaviour to allow him to settle in another parish. This could be a serious penalty in a rural parish, but not in a densely settled city centre. In a few parishes women were not automatically sent to their appearances after guilt had been admitted, but allowed only after heavy questioning on their religious understanding.5 In cases of recalcitrance in giving evidence the General Assembly had ruled that women should be threatened with the procedure for adultery; this was not unreasonable since in adultery cases it was not rare for the man involved to put pressure on the woman to conceal his name. Urban parishes might put another hazard in the woman’s way, the need to 4 Scottish Record Office CHI/1/18, 335-46. The Act tightened up and made more uniform existingpractices. 5 This is particularly noticeable in Edinburgh New Kirk session, the record of which has survived only for 1706, m Edinburgh University Library, LA HI 338. 22 woman name cautioners, men financially committed to seeing that the attended for discipline. This made it difficult for the poor and for recent incomers. Sessions might use considerable detective or coercive techniques to establish truth. Mary Carmichael in Edinburgh St Cuthbert’s (May 1728) claimed that her pregnancy resulted from marnage with a soldier in “Delorain’s regiment now at Gibraltar”, who had been on home leave nine months before, and produced a marriage certificate and a letter from her husband in Gibraltar. But the session declared that these were forgeries, the writing of the certificate and the signatures of celebrant and witnesses were all in the same hand. And it was well known that the regiment had never been to Gibraltar. When Margaret Hog in Edinburgh New Kirk (February 1706) refused to name her gentleman consort, declanng that she would rather endure any punishment, the session put pressure on the cautioner that the gentleman had hired for her. threatened with imprisonment the cautioner gave way and told the name. The gentleman, as he had threatened, abandoned her and went abroad.6 There were groups exempt from, or not admitted to. Church discipline. Members of the army could not be obliged to attend the session, but might do so to give information. They would not be put under censure. Roman Catholics were not expected to submit to discipline but were not fully exempt. James Nicol in Old Aberdeen (February 1703) a relapsed sinner, “being popish” refused public appearances and was left under scandal; six months later he renounced Roman Catholicism before the magistrate. John Leslie, writer, in Trinity College (January 1688) was exempted from appearances because of Catholicism, but was ordered to pay the fine. In January 1664 the son of the laird of Duddingston, a member of the Canongate church, “humbled himself before the session and craved the Lord’s mercy” but did not make full appearances as his consort was forced to. 6 Kirk session registers for Edinburgh and New Aberdeen are in the Scottish Record Office; Dundee’s is in the Dundee Archive and Record Centre, Glasgow’s in Strathclyde Regional Archives, Old Aberdeen’s in Old Machar Church (and may be examined at the University Archive). For particular cases we quote parish, month and year, which is enough to make follow up possible. 23 In St Cuthbert’s, (November 1713) John Hall, an Englishman and “ one of the servants of the Exchequer” “ who pretends he is not of the Communion ofthis Church” was called to make one public appearance because the session held that it could not dispense with the laws of the Church; in the event he disappeared into the abbey for debt. These cases were both complicated by social standing. A further group not put through discipline was ofthose labelled by session or presbytery as “ not a proper object of discipline”. A woman might be so descnbed if she was considered promiscuous, or was a recognised prostitute. In the latter case the city authonties would be asked to expel her. In January 1726 St Cuthbert’s session was concerned about three “petulant infamous women” already banished from the city as “notourly known to be lewd women”, many times impnsoned for their “wicked practices”. The session asked a Justice of the Peace to have them impnsoned. He obliged and assured the session that if they returned to the city they would be banished not only from the pansh but from the shire. Against individuals, especially women, the sessions might have considerable effect, but they were not powerful enough to deal with organised vice with money behind it. There was a well known “disorderly house” entertaining soldiers in Dundee in January 1747. William Creech’s virtuous picture of an Edinburgh containing only five or six brothels in the 1760s, which he sent to the Statistical Account, will not stand up to investigation.7 In July 1703 there was a complaint to Tnmty College session that many persons banished from Edinburgh city moved freely about from pansh to pansh and kept brothels. In March of that year the same session had received information about systematic procurement for women for gentry, but the presbytery covered up the issue by stating that the woman who had given the evidence was “ane bad woman”. The Edinburgh parishes show many cases of “bad housekeeping” at numerous dates. The most conspicuous entrepreneur in these matters appears to have been one Aeneas McCulloch in Tnmty College, an example of the initiative credited to Highlanders migrating to the Lowlands and finding useful economic 7 StatisticalAccount ofScotland, vi (Edinburgh. 1793), 612. 24 < niches in which to make a living. In July 1712 lus house was named as the place where an unmarned pregnant woman lived, and in September ofthe same year the same location was named for another. The session had ordered an inquiry into the house. But in 1717 in March, and separately in July, the house was again named as the place of conception of illegitimate children. From the way the house was named specifically in all four cases, it was clearly well known. Although the carrying out of disciplinary procedures by kirk sessions was anything but straightforward, there was a norm. At most times and in most panshes the majority of sinners conformed by confessing their guilt and undergoing the requisite number of appearances. It is the minority who in one way or other challenged the discipline ofthe Church that we now want to look at. At every stage ofthe process ofpurging an offence there were ways ofnot conforming: the most obvious one was simply to refuse to appear before the session. But in rural parishes that would mean cutting oneself from all the community life centred on the church, while in the city parishes sessions had recourse to civil magistrates to compel people to attend.8 It was only the gentry who could consistently get away with such a level ofdefiance. Ifa woman was delated she might flee the parish, but the system of testificates demanded for settlement in a new parish made this difficult, and a pregnant woman arnving alone in a strange pansh might have difficulties. The big city, Edinburgh, was the obvious resort for those who wanted anonymity, but the ministers ofthe vanous parishes there were well aware of this. One of the methods of control was by the midwives. Before a midwife was allowed to practice she had to sign a bond swearing to reveal the existence of any stranger woman giving birth.9 Naturally the system was abused, especially if a gentleman paid 8 The relationship between ecclesiastical and civil authorities in the cities is a complex subject which we plan to explore further in the future. The oath included a promise to “give an Account ofall unlawful Births which come to our knowledge ..to the Ministers or Elders” and also “ifit should happen that ifthe mother vary anent the Child's father, or we have any suspicion therof we ... shall call for the Ministers or Elders in time of Labour, or in their absence for 25 enough, but the pansh control of midwives meant that a woman could not rely on escaping discovery even in the heart ofa city. A man accused of fathering an illegitimate child might also flee rather than admit the charge, and he stood a good chance of permanently disappearing. The church certainly made attempts to trace such men - often quite strenuous attempts - but a fit young man was obviously very mobile and an asset on the labour market, so such attempts were only very occasionally successful. But the man could not safely return to his home pansh again, for kirk sessions had exceedingly long memories, and no matter how many years had elapsed the offender was still liable to be forced to make public appearances. Since pregnancy was the proof ofthe sin, a woman might deny that she was pregnant. In Edinburgh Tnnity College pansh (July 1712) Christian Humphrey said “she was under bodily Indisposition and that there are sixty pounders in her belly.” Christian was in labour less than a fortnight later, so her denial was nothing more than an attempt to postpone bnefly the moment of reckoning. When Janet Ritchie in St Cuthbert’s denied being pregnant in July 1768, “she was put in mind how dangerous it was for her to deny her being with Child, if she should afterwards be found to bring forth a dead Child which she concealed”. She continued denying so the session called in two midwives to examine her, both of whom declared that she was about six months gone with child. Denying pregnancy was not really much of an option since there were enough physical signs to prove that a woman was in that condition, but the above warning reveals what both the civil and ecclesiastical authorities most feared. If pregnancy was the proof, then concealing it and killing or abandoning the child on birth was the ultimate means of defying both church and state. Concealment of pregnancy was a dangerous policy for there was a legal presumption of We murder if the child should die after a secret birth. found scattered references to attempted abortion - considerably more in urban panshes two habile Witnesses and thoroughly examine the Mother ... in order to oblige her to give an impartiall account of the Child's father”. Hus wording comes from St Cuthbert’s register. December 1718. 26