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Enlightenment, Legal Education, and CritiqueSelected Essays on the History of Scots Law, Volume 2$
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John W. Cairns

Print publication date: 2015

Print ISBN-13: 9780748682133

Published to Edinburgh Scholarship Online: January 2018

DOI: 10.3366/edinburgh/9780748682133.001.0001

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Hamesucken and the Major Premiss in the Libel, 1672–1770: Criminal Law in the Age of Enlightenment

Hamesucken and the Major Premiss in the Libel, 1672–1770: Criminal Law in the Age of Enlightenment

Chapter:
(p.311) 11 Hamesucken and the Major Premiss in the Libel, 1672–1770: Criminal Law in the Age of Enlightenment
Source:
Enlightenment, Legal Education, and Critique
Author(s):

John W Cairns

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748682133.003.0011

This chapter examines prosecutions for hamesucken between 1672 and 1770, the first date being that of the establishment of the refounded Court of Justiciary. One of John Millar's last surviving letters is to John Wilde, the Professor of Civil Law in Edinburgh, discussing a recent conviction for the crime, expressing his view that hamesucken had fallen into disuse. The chapter considers how arguments were developed in framing the major premiss in the libel from the law of nature and nations, a practice which also allowed influence from English criminal law. It begins with a discussion of procedure in criminal trials during the period, followed by an analysis of the law of hamesucken as found in treatises and the practice of the Justiciary Court. It also looks at the 1752 trial of James Macgregor before concluding with some remarks on marital rape.

Keywords:   hamesucken, Court of Justiciary, John Millar, libel, criminal law, criminal trials, James Macgregor, marital rape, prosecutions

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