Commission of Justiciary - Commission of Fire and Sword

Commission of Fire and Sword

The powers granted under such commissions were extensive and draconian and often included the power to administer summary justice, with no subsequent obligation to account for the steps taken. The archetype was the “commission of fire and sword” which features so prominently in clan history in the Highlands. A commission granted in 1649 by the estates of parliament in favour of the Earl of Sutherland contains characteristic language, authorising a number of individuals:

“to search, seek, take and apprehend the aforesaid persons, rebels and fugitives above-named, wherever they can be apprehended; and if they can be captured, to put them to the knowledge of any assize for the crimes aforesaid and to administer justice upon them and execute them to the death; and, if need be, to raise fire and sword and to burn their houses and slay them in case they make opposition or resistance in the taking and apprehending.”

Notable examples of commissions of fire and sword include:

• The commission obtained by Galbraith of Culcreuch against the Clan Gregor in 1593;
• The commission obtained by Mackenzie of Kintail against Macleods in Lewis in 1596/7, which was intermittently renewed and led ultimately to Mackenzie’s annexation of Lewis;
• The commission obtained by the Earl of Argyll against royalists in Atholl and Angus in 1640;
• The commission obtained by Mackintosh of Torcastle against Macdonald of Keppoch in 1681 and 1688, resulting in the Battle of Mulroy;