By Cassie Watson; posted 23 September 2018.
Crime historians are familiar with some of the more widely reported cases of delayed or failed executions that occurred in the seventeenth, eighteenth and nineteenth centuries. In July 1798 Mary Nicholson, a poisoner in County Durham, was reprieved while the Twelve Judges decided a point of law. Their decision went against her and she was hanged a year later in more tragic circumstances than most: the rope broke and she had to wait nearly an hour for a new one. More typically, female felons were spared the gallows if they successfully pleaded pregnancy, which deferred execution and could result in a pardon, or commutation of the sentence to transportation or imprisonment. Convicts of both sexes could petition the Crown for a pardon on social or legal grounds, but it was more usual for reprieves to result from the direct recommendation of the trial judge, while insanity usually led to the indefinite suspension of a death sentence.
Extraordinarily, a tiny number of the condemned survived the experience of execution. Anne Greene was revived by physicians in Oxford after she was hanged in December 1650; Margaret Dickson emerged from the coffin following her 1724 execution in Edinburgh and subsequently enjoyed many years of life as Half-Hangit Maggie; and The Man They Couldn’t Hang, John ‘Babbacombe’ Lee (1864–1945), famously endured three attempts to execute him at Exeter in February 1885, a singular achievement that led the Home Secretary to commute his sentence to life imprisonment.
In England, those who were not “thoroughly killed” by the process of execution were to be hanged again, since the law demanded they be “hanged by the neck till dead”. But Scots law accepted that the sentence had been carried out and did not pursue the convict further; David Hume suggested the easiest way to deal with such cases was to grant a quiet pardon. It is significant that he cited two judicial decisions of late 1788, because another source demonstrates that it was in precisely this year that the judges addressed the problem of what to do when a condemned criminal managed to avoid or delay their date with the executioner. A list compiled early in 1788 by a clerk at the Court of Justiciary in Edinburgh provides details of ten cases in which the Court had ordered enforcement of a death sentence after the scheduled day had passed, or had altered the date of execution to enable it to proceed.
This shows that executions were postponed, but not halted, by a prisoner’s escape or an error in the specified date. Those respited due to pregnancy or on condition of banishment had a better chance of escaping the noose. And the autobiography of William Gadesby (1791) suggests another delaying tactic: he confessed to multiple felonies in the hope that the authorities would investigate them all. These cases together raised a number of legal points that the Lords of Justiciary argued and agreed.
Escape from early modern prisons was not unheard of, as the famed case of London’s Jack Sheppard attests; but, like Sheppard, even those who had the wherewithal to do so seem to have been unable to resist the lure of their past haunts. Political rebels Archibald Campbell, 9th Earl of Argyll (1629–1685), Charles Radcliffe, 5th Earl of Derwentwater (1693–1746), and Archibald McDonald of Barrisdale (1726–1787) are all named on the Court’s list.
Argyll was convicted on a dubious charge of treason in 1681 but escaped Edinburgh Castle dressed as a servant and fled to Holland. When Charles II died Argyll attempted a Protestant rebellion against James II and VII and threw his lot in with the Duke of Monmouth, only to be captured and beheaded under the sentence of death passed against him four years earlier. Derwentwater, a Jacobite conspirator, appears as an annotation on the back of the list. He was sentenced to death after the rising of 1715 but escaped from Newgate into exile on the Continent. Thirty years later he was arrested on a French privateer bound for Scotland with arms for the Jacobites and imprisoned in the Tower of London. In a different hand, possibly that of one of the judges, is a note: “In K[ings] Bench pleaded he was not the same person – a jury returned and he was tried instanter and no challenge allowed – executed.” The writer referred in cautiously positive terms to Blackstone’s comments (Commentaries on the Laws of England, Vol. 4, p. 389) on the role of a jury in identifying a person but not his guilt in such circumstances: “If Law of England is no reason why it should be our Law — it is no reason why it should not be our Law.”
McDonald, also a Jacobite, was condemned under an act of attainder passed after the rising of 1745. Captured in 1754, he was brought before the Court of Justiciary on 11 March to have execution awarded against him or show cause why it should not: “It was keenly debated that his defences in bar of execution upon the said act ought to be tried by a jury. This was overruled by the Court and he was ordered for execution.” Luckily for him, his appeal against sentence was superseded by a pardon.
Convicted murderer Robert Johnston enjoyed less time on the run but no better luck than his social superiors. He escaped from prison at Jedburgh in May 1727 before his execution, but was caught in August 1728. His identity was proved by two witnesses and he was hanged on Tuesday 13 August.
There were other ways to avoid execution. Scots could petition the court for banishment before trial, to avoid the risk of a capital conviction, or a death sentence might be commuted to banishment, usually on pain of death if they returned; by the eighteenth century the place of banishment was not England but the colonies. Hume noticed a gradual softening of the strictures attached to banishment, so that by the middle of the century returnees were not executed but whipped and transported overseas again. The Court’s list includes four men sentenced to banishment and a woman reprieved for pregnancy and subsequently transported. Their cases mirror the trend noted by Hume.
On 12 March 1701 a pair of coiners, Anderson and Weir, had their capital sentences commuted to banishment, never to return to Scotland under the pain of death. But they did return, within a very short time. They were arrested, confessed that they were the individuals formerly sentenced, and were hanged on 28 March. Banished in 1699, William Baillie returned in 1715 and committed a series of thefts. Rather than immediate execution, the judges ordered him to stand trial for the thefts and returning from transportation – thus ensuring he would soon feel the hangman’s delicate touch. Twenty years later Walter Denny was banished but successfully petitioned the Court to be allowed to enlist and go to Gibraltar. And in March 1773 James Baillie, sentenced for murder in December 1771, returned from transportation for a good reason: he was prevented from going abroad by sickness. The court accepted his claim that it was for a jury to decide whether he had forfeited the benefits of his pardon following legal arguments which raised the relationship of Scots law to English law with regard to “whether a crime already tried shall receive its punishment, and whether a sentence already pronounced shall receive execution”.
Under English law he was entitled to a trial of fact — returning from transportation, a felony under the Transportation Act of 1718. But under Scots law there could be no trial for a new crime, only to decide whether to put the existing sentence into execution — which was a matter for the judges. Baillie’s counsel argued that two later Acts extended over the whole kingdom of Great Britain and so the judges had to agree to a jury trial, the only difference from the English case being that Baillie’s obligation to transport himself arose not from sentence but the condition of his pardon. This argument seems to have succeeded, as there is no record that Baillie was executed.
Finally, in October 1785 housebreaker Mary Langlands and her husband William Moodie were tried for theft and reset at Glasgow: he was sentenced to be transported but she was sentenced to death. However, she was able to do what a man never could: she pleaded pregnancy and her sentence was twice deferred, and then commuted to transportation.
Judges occasionally made mistakes in the dates that they set for an execution — which, under Scots law, tended to be specified. An early example of this, not included in the Court list of 1788, occurred in 1684 when Arthur Tackett was sentenced to be hanged on 26 July. However, this was to be a feast day within the diocese of Edinburgh, so the Privy Council granted Tackett a “reprieve” to 1 August. The execution dates for Janet Hay (1731) and James Jack (1784) had to be changed too. In Jack’s case this was because Wednesday 2 July 1784 did not actually exist; so he was hanged on Wednesday 7 July, which did.
Two years after the list was compiled, one William Gadesby, 28, was sentenced to death for theft and the date set for 2 February 1791. Scots law allowed up to 40 days between sentence and execution, depending on where in the country a trial was held, and Gadesby used the time to write an autobiography and confess — falsely — to a series of additional crimes. As further enquiries were made, his execution date passed. He then petitioned the court for his sentence to be overturned and that he could not be proceeded against unless he was convicted upon another indictment. The judges refused, unanimously, paying “no regard to so unreasonable an objection”, and he was hanged on 23 February — a Wednesday.
I would like to thank James Hamilton, Research Principal, The Signet Library, Edinburgh, for permission to quote from archival sources held in the Library.
Wellcome Collection, A manacled man is lead (sic) to prison by soldiers wearing tricorn hats. Etching. Wellcome Library no. 43507i (n.d.). Free to use with attribution.
Portrait of Archibald Campbell, 9th Earl of Argyll (1629–1685) in Argyll’s Lodging, Stirling. By Kim Traynor – Own work, CC BY-SA 3.0. Free to use with attribution.
Charles Radcliff, 5th Earl of Derwentwater (1693–1746); Jacobite portrait of Derwentwater from the waist up. National Library of Scotland, Jacobite prints and broadsides, (609) Blaikie.SNPG.5.9. Attribution: National Library of Scotland, Creative Commons License: CC-BY-NC-SA.
 Katherine Watson, Poisoned Lives: English Poisoners and their Victims (London: Hambledon and London, 2004), 189; Caledonian Mercury, 29 July 1799, 3. She used the time to talk with relatives and pray. The year-long delay was due to the fact that until 1819 the county held annual assizes.
 James Oldham, “On pleading the belly: A history of the jury of matrons”, Criminal Justice History 6 (1985), 19-21; K.J. Kesselring, Mercy and Authority in the Tudor State (Cambridge: Cambridge University Press, 2003), 212-214.
 William Blackstone, Commentaries on the Laws of England, Vol. 4, Of Public Wrongs [facsimile of the first edn 1769] (Chicago: University of Chicago Press, 1979), 388-389. See also J.M. Beattie, Crime and the Courts in England 1660-1800 (Princeton: Princeton University Press, 1986), 430-436.
 Newes from the Dead. Or a true and exact narration of the miraculous deliverance of Anne Greene, who being executed at Oxford Decemb. 14. 1650. afterwards revived and by the care of certain hysitians [sic] there, is now perfectly recovered. Together with the manner of her suffering, and the particular meanes used for her recovery (Oxford: Leonard Lichfield for Thomas Robinson, 1651).
 Barbara White, “Dickson, Margaret [called Half Hanged Maggy Dickson], (d. in or after 1753)”, in Oxford Dictionary of National Biography (2004). Retrieved 22 Sept 2018, from http://www.oxforddnb.com.oxfordbrookes.idm.oclc.org/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-57792. This source gives the date as 1728, but others say 1724, including David Hume, Commentaries on the Law of Scotland, Respecting Trial for Crimes, Vol. 2 (Edinburgh: Bell & Bradfute, 1800), 351-352 and The Scots Magazine, 1 Dec 1808, 25.
 Mike Holgate and Ian Waugh, The Man They Could Not Hang: The True Story of John Lee (Stroud: Sutton, 2005).
 Blackstone, Commentaries, 399.
 Hume, Commentaries, 350-351.
 The Signet Library, Edinburgh, SP 603:1, Session Papers, vol. 603 (1788-91), “Note of cases where the Court of Justiciary have ordered sentences of death to be inforc’d after elapsing of the day of execution, and of cases where the Court have altered the day of execution” (1788), n.p.
 An Account of the Life and Transactions of William Gadesby … Written by Himself, when in Prison (Edinburgh: William Creech, 1791). Bound into a copy of The West of Scotland Magazine and Review, new series (Glasgow: Thomas Murray and Sons), no. 11, August 1857, held in The Signet Library. The Account was advertised for sale at a cost of 1 shilling in the Caledonian Mercury, 24 Feb 1791, 1.
 David Stevenson, “Campbell, Archibald, ninth earl of Argyll (1629–1685), politician and clan leader”, Oxford Dictionary of National Biography (2004). Retrieved 22 Sept 2018, from http://www.oxforddnb.com.oxfordbrookes.idm.oclc.org/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-4473.
 Leo Gooch, “Radcliffe, James, styled third earl of Derwentwater (1689–1716), Jacobite army officer”, Oxford Dictionary of National Biography (2004). This article includes a biography of the fifth earl. Retrieved 22 Sept 2018, from http://www.oxforddnb.com.oxfordbrookes.idm.oclc.org/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-22983.
 The Signet Library, “Note of cases”.
 Clan MacFarlane and associated clans genealogy, Archibald Macdonell, 3rd of Barrisdale (accessed 22 Sept 2018).
 The Signet Library, “Note of cases”; he is #4 on the list.
 Hume, Commentaries, 365-370.
 The Signet Library, “Note of cases”.
 Caledonian Mercury, 13 March 1773, 2; The Scots Magazine, 1 March 1773, 1-7. According to Baillie’s counsel (who cited several of the cases listed in the Court’s list of 1788), these statutes were 6 Geo I c.23 (An Act for the further preventing Robbery, Burglary, and other Felonies, and for the more effectual Transportation of Felons) and 16 Geo II c.31 (An Act for the further punishment of persons who shall aid or assist prisoners to attempt to escape out of lawful custody); 6 Geo III c.32 (Transportation (Scotland) Act, 1766) was also relevant.
 The Signet Library, “Note of cases”; The Scots Magazine, 1 Oct 1785, 41; Caledonian Mercury, 31 Dec 1785, 2-3.
 National Records of Scotland, Edinburgh, GD1/1009/13, Extract act of Privy Council postponing execution of Arthur Tackett because the original date is to be a fast day, 26 Jul 1684. On the period between sentence and execution see Hume, Commentaries, 344-346.
 The Signet Library, “Note of cases”.
 Hume, Commentaries, 345; Rachel E. Bennett, Capital Punishment and the Criminal Corpse in Scotland, 1740–1834 (Cham, Switzerland: Palgrave, 2018), 16, 227.
 Hume, Commentaries, 349-350; Gadesby, An Account, 51-57.