In post-medieval Scotland, two specific crimes reveal the challenges faced by ordinary women

In the court records of post-medieval Scotland, women appear for a strikingly limited range of crimes. While men were prosecuted for theft, violence and disorder, women were charged with offences that spoke directly to their bodies and behaviour.

As Dr Allan Kennedy, a historian of early modern Scottish history, explains on an episode of the HistoryExtra podcast, “understanding what kinds of crimes are committed and how they are responded to gives you a really good understanding of the ordering assumptions of any given society”.

In early modern Scotland, those assumptions produced a sharp gender divide in the law.

“There’s a very strong split between what women were being prosecuted for and what men were being prosecuted for” in Scottish courts, Kennedy says.

Women were accused overwhelmingly of two crimes: witchcraft and infanticide. Both were profoundly gendered offences, shaped by contemporary anxieties about women’s morality and place within the social order.

And, both crimes expose the pressures faced by ordinary women in Scotland as the country stepped into the early modern era, and the reign of the Stuarts.

Witchcraft in early modern Scotaland

One of the most common crime committed by women in 1600s Scotland was witchcraft.

Between 1560 and 1706, approximately 6,000 people were tried for the crime in Scotland – three times the number tried in England, even though Scotland’s population was a quarter of the size of England’s.

The witchcraft craze was encouraged by King James VI and I, Elizabeth I's successor, who set up royal commissions to hunt witches. He also wrote a book about black magic, called Dæmonologie, which was inspired by his involvement in the infamous North Berwick witch trials of 1590.

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The majority of people accused of witchcraft were women; estimates say between 75 to 84 per cent. They were accused of renouncing God and their Christian faith, and using powers received from the devil to cause harm – that could be anything from blighting crops and causing storms, to making their neighbours ill.

Many of the women accused had acted in a way that disrupted the established social order and gender – behaviours that went against the meek, subservient role expected of women at the time. Witchcraft was suspected as the reason why they were so deviant.

Some historians also link the trend to the changing relationship between religion and government.

“Scotland had a distinctive reformation in 1559, producing a Calvinist church, which is quite an austere form of Protestantism – much more rigid than the Anglicanism of the Church of England – and a very dense system of church courts,” Kennedy says.

“What that means is that religion was very central to pretty much every aspect of Scottish life, and importantly, Scottish governance and administration – much more so compared to England.”

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This could explain why witchcraft, which was a renunciation of Christianity, was seen as so threatening in Scotland at the time, compared to England.

By the end of the 17th century, a hundred years after the publication of Dæmonologie, the bulk of the Scottish witch hunts were over, and there weren't as many women being accused of witchcraft as there were earlier in the 1600s. Now, the most common crime among women was infanticide.

The crime of infanticide

Infanticide today is understood as the intentional killing of a child. But in Scotland in the late 17th century, the definition was more expansive.

“A law passed by the Scottish Parliament in 1690 made it so that if a woman concealed a pregnancy and the child later died, then it will be assumed in law that she murdered the child, even if there's no hard evidence that she actually did,” Kennedy says. “So, in other words, if you had a stillborn child but you had concealed the pregnancy, the law would assume that you murdered the child.”

The practical effect of this law was that there was an upsurge in the number of women prosecuted for infanticide in the 1690s, Kennedy says.

“There were a few older women who were prosecuted for having assisted in the murder of a child, such as elderly midwives or elderly relatives,” Kennedy says.

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But the majority of the people accused of infanticide were younger women, usually of a lower social status – like farm workers or domestic servants – who actually bore the children.

“Very often the father of the child was their master or a family member of the master,” Kennedy says.

“It's implied in a lot of these cases, and sometimes more than implied, that the father of the child attacked the woman and committed sexual assault, leaving her with a child who was going to be illegitimate.”

In 17th century Scotland, there was a hugely significant social stigma against illegitimacy.

“Often, it was said explicitly in women's confessions that if they concealed their pregnancy and murdered the child, they did so because they couldn't bear the shame or the very significant practical and reputational ramifications that come with having an illegitimate child,” Kennedy says.

Meanwhile, the men who fathered these children seldom faced any consequences because they didn’t bear the children.

“This tells us some very important things about the particular constraints and social pressures that women were forced to deal with – not just the women who are caught up in the courts, but just women generally,” Kennedy says.

Dr Allan Kennedy was speaking to Emily Briffett on the HistoryExtra podcast. Listen to the full conversation.