State Formation, Criminal Prosecution and the Privy Council in Restoration Scotland

Historians have begun to think about the emergence of the early modern ‘state’ in complex and creative ways, far from the conventional focus on overweening central bureaucracies. One component of this discourse is the role of criminal law and criminal prosecution, which, it has been argued (particularly by English scholars), assisted state-forming processes by providing a universal interface between ruler and ruled, and by demarcating common patterns of behaviour. This paper attempts to apply these ideas to the case of early modern Scotland—whose decentralised legal system and reputation for judicial barbarity has tended to discourage research—through detailed analysis of the judicial activities of the Privy Council. Focusing on the reigns of Charles II and James VII & II, the paper assesses the Council’s theoretical competence as a criminal court, and also reconstructs its day-to-day activities in terms of the kinds of cases tried, the varieties of punishment imposed, and the use of alternative mechanisms such as judicial commissions. The paper argues that the Restoration Privy Council was clearly able to utilise its judicial powers as a state-building tool, despite the general diffuseness of judicial authority in Scotland. It is suggested, therefore, that the Scottish data confirms the utility of criminal prosecution in early modern projects of state formation, underlining historians’ need to conceptualise the process in broad, multi-faceted terms.