**  A second window aside called by the
She-philosopher.com Studies page, entitled
“The Missing Historical Context: Anglo-American
Gun Laws & the Original Intent of the Second Amendment”  **

First Published:  16 April 2024
Revised (substantive):  19 April 2024

A N     E X C E R P T     F R O M
 

Part I of
The Laws and Customes of Scotland,
in Matters Criminal (1678)
 

TITLE XXXII.
Bearing of Unlawful Weapons.

 
[  re. firearms “forbidden, and the
bearers punished” under both
the common & civil law  ]

by   S I R   G E O R G E   M A C K E N Z I E
(1636/1638–1691)

     Renowned Scots lawyer, scholar, and politician, whose “prominent public service and prolific printed oeuvre ensured a lively contemporary and posthumous reputation.” Mackenzie served as Lord Advocate (the government’s chief legal officer) in Scotland from 1677, attracting “notoriety for his prominence as the king’s chief prosecutor in the Restoration government’s persecution of nonconformist Presbyterians.” (C. Jackson, “Latitudinarianism, &c.,” 73)
     “In Sir Walter Scott’s novel Redgauntlet (1824), retrospective allusion is made to the ‘Bluidy Advocate MacKenyie, who, for his worldly wit and wisdom, had been to the rest as a god.’” (ODNB entry for Sir George Mackenzie, by Clare Jackson) One of the foremost thinkers of Restoration Britain — during a time of great political and religious turmoil — Mackenzie published more than 20 works on a wide range of subjects (jurisprudence, imaginative literature, moral philosophy, political theory), including the first Scottish novel in 1660. His notable legal works include The Laws and Customes of Scotland, in Matters Criminal (1678) and The Institutions of the Law of Scotland (1684), which passed through 9 editions, serving as the country’s preeminent legal textbook until the mid-18th century.

N O T E :  The following excerpt (“Title XXXII. Bearing of Unlawful Weapons.”) is from Part I of Mackenzie’s The Laws and Customes of Scotland, in Matters Criminal (Edinburgh, 1678) — “the first systematic and detailed exposition of Scots criminal law.” (ODNB entry for Sir George Mackenzie, by Clare Jackson)
   Mackenzie, whose significance as a legal adviser to the British crown was considerable, tells us that “In prosecuting this design, I was forced to revise and abreviat those many and great Volums which make up our Criminal Registers, and having added to them these Observations I have my self made, during my twenty years attendance upon that Court, either as Judge, or Advocat; I collationed all with our Statutory Law, the Civil Law; and the Customs of other Countreys, and the opinions of the Doctors [scholars]: And, as I may without vanity say, that few valuable Authors treat of Crimes, whom I have not read; So there is nothing here which is not warranted by Law, or Decisions, or in which, when I doubted, I did not confer seriously with the learned’st Lawyers of this Age; and yet I doubt not but in some things, others may differ from me, as the best Writers do amongst themselves: And having only designed to establish solidly the Principles of the Criminal Law, I wanted room for treating learnedly each particular case, or even for hinting at all such cases as may be necessary; And without wearying my Readers with Citations, (which was very easie) I have furnished the Book with as much reason as is ordinarly to be found in Legal Treatises.” (G. Mackenzie, Laws and Customes of Scotland, in Matters Criminal, 1678, a1r–v).
   His “abreviat” concerning the “Bearing of unlawful Weapons” details the punishments this crime brought on: “amputation of the right hand”; “confiscation of their moveables, or syning and imprisonment”; “the prohibit Arms were confiscat”; “banished the Realm during his lifetime.” Of note, “Hagbuts [aka hackbut, hackbush, and arquebus], Pistols, and other Fire-works” were singled out as “offensive Arms” associated with “publick violence” under civil law, with Mackenzie commenting, “it is strange that only Fireworks, or ingines should be forbidden by that Act.” (G. Mackenzie, Laws and Customes of Scotland, 315)
   Positing a unique special relationship between guns and “publick violence,” regardless of whether or not “prejudice was done,” and prohibiting the public carry of guns (with few exceptions) because of this, adds complexity to our own debate over the personal possession of military-grade weapons. As Mackenzie makes clear, at this country’s founding in the 17th century, all guns were equated with “publick violence” and the “bearing forbidden Weapons” in public prohibited by law, regardless of one’s social status. Significantly, these longstanding prohibitions on public carry had no deleterious effect on militias and military readiness. “Scots were highly valued as excellent planters and soldiers, the latter occupation being an important advantage in the early days of settling colonies, particularly those which placed a heavy reliance on the use of black slaves where possible insurrections were an ever-present threat.” (Linda G. Fryer, “Documents Relating to the Formation of the Carolina Company in Scotland, 1682,” 129).
   I wish also to call attention here to Sir George Mackenzie’s unique expertise in armigerous law, which adds historical value to his essay on “Bearing of unlawful Weapons.” Having authored a book on “Herauldry ... the Science of Gentlemen,” wherein “the practical and common knowledge of Blazoning [is] rightly founded upon the civil Law and Law of Nations,” Mackenzie — who argued that “being bred to the Law ... requires a whole Man, and his whole Age” — brought an interdisciplinary perspective to “the Theory of our Civilians” and the arms-bearing public: “for some had treated this Science as meer Law, without understanding the practice of Blazoning, as Bartolus, Chassaneus, &c, whilst others handled it as a part of the Civil Law, as Guilim, Menestrier, Colombier, and others, without being bred to the Law, which requires a whole Man, and his whole Age. To reconcile which two, I was induced to write some Observations, whilst I was young, to joyn the Theory with the Practice, and to examine and polish the Principles and Terms of that excellent Art: ... Having also design’d to learn from our old Rights and Evidents, the Origin and Progress of our Stiles, and by what steps they arrived at their present Perfection, (in which Work I have made considerable Progress) I did from the original Papers I saw, and from the old Chartularies of our Abbacies, draw an account of our Families; But because I want time to fit them for the Press, I resolve to leave the Manuscript, as a new Testimony of my kindess, to my native Countrey.” (Sir George Mackenzie, The Science of Herauldry, Treated as a Part of the Civil Law, and Law of Nations, 1680, Epistle dedicatory, n. pag.)

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                          T I T L E    X X X I I.
                      Bearing of unlawful Weapons.

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“ 1.  What is the punishment of this Crime by our Law.
“ 2.  What by the Civil Law.
“ 3.  Who are Judges competent to it.

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“ I.  Bearing of Hagbuts, Pistols, and other Fire-works, were punished of old by amputation of the right hand, but by the 6. Act, Parliament 16. Ja. 6. the bearing of such weapons is forbidden, though no prejudice be done by the wearers, who may be pursued, either before the Council, or Justice Court, and the punishment by the Council is declared not to be corporal, but only confiscation of their moveables, or syning and imprisonment; but prejudice of any pursuite before the Justice Court, who it appears may inflict the former punishment of cutting off the right hand.

“ It would seem that by this act the Pannel is oblidged to give his oath before the Justices, which is not usual in any crime, except that of Usury, for the probation by oath is indefinitly subjoyned to pursuits before the Justices or Council. And albeit the Council does immediatly preceed, yet that probation by oath seems not to relate solely to the procedure before the Council. For when the procedure before the Council is repeated, the probation by witnesses is only there mentioned. Yet I think there is an errour in the printing of this Act, for it is very unreasonable, that when this Crime is proved before the Council by witnesses, that no amputation shall be remitted, and yet this priviledge should not be extended to those against whom it is proved by their own oath.

“ It is observable from this Act, that the Council may force such as are pursued before them to give their oaths, albeit it may be alledged, that nemo tenetur crimen contra se probare.

“ By this Act likewise, all licences to bear thir Weapons are ordained to be past in Council, and to pay a composition to the Thesaurer, and to passe his Register and all the Seals, else to be null.

“ II.  By the Civil Law, the bearing of these Weapons was a crime also. l. 11. C. ut armorum usus and by the Feudal Law, c. 1. §. si quis. de pace tenenda. & tenebatur paena legis juliae de vi publica, which was arbitrary: And the Glosse observes, that the carrying of such Arms was repute publick violence, though no prejudice was done, which is consonant to the Act of Parliament. But it is strange that only Fireworks, or ingines should be forbidden by that Act. Nor can the carrying Pikes, Swords, or any other weapons, be punished by that Act.

“ By the Civil Law likewise, the prohibit Arms were confiscat, and Marsil. in prac. § pro complemento, N. 12. Carerius & Clar. declared, that by the custom both of Spain and other places, the Arms are confiscat, albeit there be no expresse warrand for that confiscation by the Statute, but it may be doubted if the true owner having lent them without being conscious to the crime, will losse them, and I think, not[.]

“ But keeping of such Weapons at home is not punishable neither by the foresaid Act, nor common Law, by which likewise it is lawful for such as travel to bear such Weapons, for their own preservation, & generaliter licet portare arma defensiva; but our Law allows no such distinction. And I remember that John Macknaughton, being pursued before the Council for bearing forbidden Weapons, they repelled this defence, viz. that he was travelling (unlesse the journey could have been alledged necessary, for else the Act might stil be eluded) and that it was the custom of the Highlands to go still well attendded and armed, which defence seemed to some ill repelled, for self-defence, and the custom of the Countrey, excuses still from this crime, Farinac. de diver. crim. questi. 108.

“ By the common Law, offensive Arms, such as Swords and Pistols, were forbidden, and the bearers punished, albeit no prejudice followed; but the carrying Stones and Trees, and such other things as were not, ex sua natura offensiva, was only punishable, if violence was done by the bearers, l. armorum ff. de verb. sig.

“ III.  Thir pursuits are more ordinarily before the Council, than the Justice Court, and is ordinary Libelled as an aggravation, rather then a crime. Thus I find William Hamiltoun pursued for wearing of Pistols, and presenting one to the Provost of Edinburgh, whereupon he came in will, and was banished the Realm during his lifetime, 1. Novem. 1597.

“ The prosecution of this crime concerns only his Majestie’s interest. And therefore the dyet was deserted, because His Majesties Advocat, nor none to represent him, did not concur, nor was the Libel raised at his instance, 20. July, 1596. Mr. James Leask, against Andrew Red.

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SOURCE :  Mackenzie, George. The laws and customes of Scotland, in matters criminal. Wherein is to be seen how the civil law, and the laws and customs of other nations do agree with, and supply ours. By Sir George Mackenzie of Rose-haugh. Edinburgh: Printed by James Glen, Anno Domini, MDCLXXVIII [1678]. 314–316.
 
NOTE :  Another passage from Sir George Mackenzie’s legal treatise, Laws and Customes of Scotland, in Matters Criminal (Edinburgh, 1678) is available here. This excerpt is concerned with abortion law and “How the murdering of Children is punished” during the early-modern period. As with so many other “Statutes and Customs of the Realm,” 17th-century legal traditions concerning parricide, infanticide, and abortion were rooted in Scripture.
     In addition, snippets from Mackenzie’s Laws and Customes of Scotland, in Matters Criminal (Edinburgh, 1678) contextualizing discussion of “A Tradition of Rebellious Assembly & Punishment” are available here.