Kirk sessions: how Scotland's churches disciplined fornication

What was a kirk session?

A kirk session was the lowest court of the Church of Scotland, a parish body of the minister and a number of elders. It had no criminal jurisdiction, so a suspected crime went to the civil courts, but it could try breaches of church discipline ^[7]. The offences it handled included drunkenness, blasphemy, slander, swearing, Sabbath-breaking, antenuptial fornication, adultery, paternity and illegitimacy, and irregular marriage ^[7].

The sessions took their authority from the Reformation. The First Book of Discipline of 1560 set out the church's power to censure and ultimately to excommunicate, and it said that the sentence should be publicised so that no one could plead ignorance ^[7]. Sessions could impose fines, rebukes, sackcloth, the stool of repentance, loss of church privileges or excommunication ^[7]. Appeals went to the presbytery, then the synod and, rarely, the General Assembly ^[6].

The state also had a stake in sexual discipline. A Scottish act of 15 December 1567 set fixed penalties for fornication: for a first offence a fine of £40 Scots or eight days' imprisonment, followed by display at the market cross and two hours with their feet fastened at the cross; for a second, a fine of 100 merks or doubled imprisonment, with the heads of both offenders shaved; for a third, a fine of £100 or tripled imprisonment, ducking in the foulest pool and banishment ^[8]. The act named burgh magistrates and the king's justice general as judges.

In 1594-95 James VI went further. A royal letter said that fornication was widespread in Glasgow and appointed the provost, bailies and the kirk session of the parish as judges under the 1567 act, with the fines to be used for the city's poor, other needy people or public works ^[8]. That letter shows how church and burgh authorities could share the work of discipline. The Older Scots noun for the offence, 'fornicatioun', is recorded in the Dictionary of the Older Scottish Tongue from about 1490, and a burgh record of 1556 uses it ^[5].

Timeline

1. 1560The Scottish Reformation; the First Book of Discipline sets out church discipline, including excommunication [7].
2. 15 Dec 1567The Scottish Parliament passes an act against fornication with fines, display and, for repeat offenders, ducking and banishment [8].
3. 1569Start of the CH2 series of church records now held by the National Records of Scotland; the series runs to 2006 [1].
4. 1594-95A royal letter appoints Glasgow's provost, bailies and kirk session as judges of fornication under the 1567 act [8].
5. 1786Jean Armour (10 June) and Robert Burns (25 June) are called before the Mauchline kirk session, according to the Burns Encyclopedia; the session minutes themselves were not consulted [13].
6. 1809Public appearances for rebuke are abolished in the parish of Mauchline, according to the minister Andrew Edgar's lectures of 1885 [9].
7. 1843The Disruption splits the Church of Scotland; the new denominations keep their own sessions but cannot easily refer cases to civil authorities [6][7].

How did the kirk session investigate fornication?

The usual route was a rumour or a pregnancy, followed by a summons. Antenuptial fornication, meaning sex before marriage, was among the commonest offences, and the session summoned the couple and expected them to admit the 'sin' and the 'scandal' ^[6]. Both parties were asked for statements, and once they admitted that they had conceived the child together they were rebuked ^[7].

Sessions pressed for the name of the father. The Genealogist reports that a pregnant woman could be questioned during labour to name the man, and that a father who denied paternity could be offered an oath of purgation, a sworn denial ^[6]. Refusing the oath, where an illegitimate child existed, could lead to excommunication ^[6]. If the dispute was deadlocked, or the father denied the charge, the case went to the presbytery ^[7].

The session then decided what the offence was. A marital-status test separated antenuptial fornication from adultery, and the penalties differed ^[7]. Those who ignored a sentence could be reported to a justice of the peace or a burgh court ^[6].

Fines were part of the system from early on. They were often directed to the poor of the parish, and sessions asked for cautioners, people who guaranteed the offender's later appearance and good conduct ^[9]. At Galston in 1628, according to Edgar's lectures, a fornicating man able to pay had to cover both parties' penalties, and if neither could pay both stood two Sabbaths in the jougs, an iron neck-collar, and two days in the place of repentance in linen cloths ^[9]. The same text reports that in 1644 thirteen couples appeared in sackcloth before the Presbytery of Ayr for breaches of the seventh commandment ^[9].

Perth offers a sixteenth-century picture of how a case could stretch over months. Margaret Ruthven was convicted of adultery in April 1578, claimed repentance in October, was excommunicated in May 1579 when the elders doubted her sincerity, and was restored to communion only in September 1580 after a long public repentance ^[11]. The same record has Helen Watson and David Gray, both married, handed to the bailies and hanged for adultery in January 1585, during a plague and famine; it calls this the only instance in the burgh of adulterers being executed ^[11]. Most sexual cases ended in rebuke and absolution, not in civil punishment.

The kirk session also dealt with irregular marriages, the quick unions made by declaration. Couples who admitted one were usually rebuked, absolved and fined, as in Cadder in 1798, where a couple married before a Glasgow writer paid a fine and were treated as married from that date ^[10]. In New Abbey in 1770 the session accepted five shillings for the poor in place of a public rebuke because the couple were of low means ^[10]. The wider background is in the article on Gretna Green and runaway marriages.

What was the stool of repentance?

The stool of repentance, also called the cutty stool, was a raised seat or platform in the church where an offender sat or stood to receive a public rebuke. The name covers different objects: in the surviving descriptions it is a short stool, but also a larger piece of furniture or platform ^[2]. Dean Ramsay, writing in the nineteenth century, described the guilty person 'standing on a raised platform called the cutty-stool' while the minister censured them from the pulpit ^[2].

In the early seventeenth century the rebuke came in three grades. According to Andrew Edgar, the Mauchline minister who published lectures on session records in 1885 ^[9], between about 1600 and 1650 an offender might be rebuked standing in his own seat, standing before the pulpit, or mounting the raised public place of repentance, the repentance stool ^[9]. Later, public censure was largely reserved for graver offences, and offenders usually had to stand in the public place ^[9].

Dress and repetition mattered. Offenders came in their best clothes, but for grievous scandal they wore sackcloth or linen sheets, and repeated appearances over months were called a 'course of repentance' ^[9]. The Genealogist places the use of sackcloth and the penitent's stool between the sixteenth and the late eighteenth centuries, and says that from the early 1800s rebukes were often given privately before the session alone ^[6].

The furniture also has a place in Scottish popular memory. Jenny Geddes is said to have thrown a cutty stool at St Giles' Cathedral in Edinburgh on 23 July 1637 when the Book of Common Prayer was introduced, although the woman's name is disputed ^[2]. The story gave the stool a second reputation, as a symbol of Scottish resistance to imposed religion.

What happened to Robert Burns and Jean Armour in 1786?

Robert Burns and Jean Armour were summoned by the Mauchline kirk session in June 1786, after Jean became pregnant. She was pregnant by late 1785 and told her family in March 1786, and on 10 June 1786 the Mauchline Kirk called her to admit she was unmarried and pregnant and to name the father; she did not attend but sent a letter naming Burns ^[13]. Burns appeared on 25 June 1786 ^[13], and the National Records of Scotland describe a public repentance from June to August 1786 ^[14].

The affair had an irregular-marriage side. Wikipedia's account says an informal written agreement of marriage was damaged, probably deliberately, by the lawyer Robert Aiken at James Armour's request ^[3]. Twins were born on 3 September 1786, and on 5 August 1788 the kirk session summoned the couple, recorded that they had been 'irregularly married some years ago' and rebuked them ^[14][3].

On his own penance Burns wrote in July 1786 that he would humble himself in public at Mauchline church. Edgar, writing in 1885, quotes the letter saying that he was 'indulged' to appear in his own seat, and comments that this would probably not have been allowed a century or half a century earlier and that Burns never sat on the repentance stool ^[9]. Edgar is a nineteenth-century secondary source, so this account rests on his reading of the Mauchline records. The dates of the rebukes and of the absolution are not confirmed by any independent source consulted for this article.

The kirk's conduct fed Burns's poetry. William Fisher (1737-1809), an elder in Mauchline, was the target of 'Holy Willie's Prayer', and the elders' proceedings against Burns's friend Gavin Hamilton helped inspire it ^[4]. In a letter of 2 August 1787 Burns wrote that the session held 'three several meetings' to examine his satire for attacks on the session ^[12]. The poem is discussed in the article on Holy Willie's Prayer and Burns's quarrel with the kirk.

When did kirk discipline decline?

Kirk discipline over sexual conduct declined gradually from the late eighteenth century, and by the nineteenth century its force had weakened. The Genealogist links the change to industrial and agricultural change, which weakened the Kirk's influence, and to schisms that created new denominations ^[6]. Those denominations had their own sessions but could not easily refer cases to civil authorities ^[6].

Public rebukes were abolished in some parishes before the great split. Edgar states that public compearances for rebuke were abolished in Mauchline parish in 1809, on the proposal of a session member, Thomas Miller of Glenlee, during the ministry of Mr Tod ^[9]. The source does not say when public rebukes ended across Scotland as a whole ^[9]. The Disruption of 1843 then divided the Church of Scotland and created new bodies ^[7].

The new police forces took over part of the work of enforcing order ^[6]. Dean Ramsay remarked that the practice of the cutty stool had changed greatly in his lifetime, and the sources include a case in Ross-shire reported in Notes and Queries in 1876 and a note on the 'recent use' of the stool in 1884 ^[2]. These reports suggest that some congregations continued the practice later than the official picture suggests, but they do not give a firm last date.

The legal framework had changed by then, too. Irregular marriage by declaration ended with the Marriage (Scotland) Act 1939 ^[10]. Fornication itself is not a crime in modern Scots law, a point set out in the article on cohabitation rights in Scotland.

How can researchers use kirk session records?

Kirk session records are held mainly by the National Records of Scotland (NRS) in the CH2 series, which covers 1569 to 2006 and includes kirk sessions, presbyteries and synods ^[1]. The NRS is the official place of deposit for such records once they are more than fifty years old and no longer in use ^[1]. Some are held in local authority or university archives under the Keeper's oversight ^[1].

Access has widened. Scottish Indexes says session records can be consulted at ScotlandsPeople Centres and at the NRS in Edinburgh, and online through the ScotlandsPeople Virtual Volumes link ^[7]. The NRS describes a large digitisation project for church court records, and The Genealogist adds that most session records are digitised there while some remain in county archives or private hands ^[1][6].

What the records contain varies. The clerk kept minutes and also registers of births and marriages, so a case of fornication may appear next to a baptism or a proclamation of banns ^[7]. Entries often name the parties, the witnesses, the rebukes and the fines, but the outcome of a dispute may be missing ^[7].

Researchers should read them with caution. The sessions recorded what they chose to record, and a rumour is not a fact. A mention in the minutes shows that the session took action, not that the sexual act was proven, and a historian counting 'fornication cases' has to allow for differences between parishes, ministers and periods.

Frequently asked questions

Did men and women receive the same penance?

In principle yes, since both parties were summoned, rebuked and fined ^[7]. In practice the cases usually began with a pregnancy, so women were identified more easily, and the Genealogist notes that sessions could press a woman in labour to name the father ^[6]. Fines could fall on the man alone when he was able to pay, as at Galston in 1628 ^[9].

Could a kirk session impose fines?

Yes. Fines were among the penalties listed for sessions, together with rebukes, sackcloth, the stool of repentance, loss of privileges and excommunication ^[6][7]. They were often given to the poor of the parish, and the 1567 act also provided for fines that were to be spent on pious uses in the place of the offence ^[8][9].

Are kirk session records online?

Partly. The National Records of Scotland holds the CH2 series and is digitising church court records, and ScotlandsPeople offers an online virtual-volumes service ^[1][7]. Some records remain in local archives or private hands, and not every volume has been transcribed or indexed ^[6].

When did the last public penance take place in Scotland?

No single date is established. Andrew Edgar's 1885 lectures report that public rebukes were abolished at Mauchline in 1809, while Notes and Queries reported cutty-stool use in Ross-shire in 1876 and 1884 ^[2][9]. The Genealogist says that rebukes were often given privately from the early 1800s ^[6].

What was an oath of purgation?

It was a sworn denial. When a man denied being the father of an illegitimate child, the session could offer him an oath, and refusal to swear could lead to excommunication ^[6][7]. A woman who kept accusing a man who had sworn could be heavily censured ^[6].

Did kirk sessions have the power to imprison?

Not on their own. The kirk session had no criminal jurisdiction, and if a sentence was ignored it could ask a justice of the peace or a burgh court for help ^[6][7]. Imprisonment and similar penalties came from the burgh authorities under the 1567 act, which in Glasgow in 1594-95 included the kirk session among the judges ^[8].