Our appeals court published only a handful of criminal opinions in February. But the lull may soon pass. The court had an extraordinarily busy oral argument calendar this week. And a new member has joined the ranks: Judge Elizabeth “Lisa” Branch. The U.S. Senate confirmed Judge Branch (pictured below) last week, and her name plate already graces the door of her chambers at the Tuttle Building. The pace of opinions may soon pick up. Onward to February’s cases.
True or false? At a guilty plea hearing, when the district court fails to describe the nature of the fraud charges, fails to outline the elements of the offenses, and fails to ask the defendant if he understands those elements, that plea colloquy is defective. False, says the Eleventh Circuit (under plain error review, anyway). The panel in United States v. Presendieu reached the surprising result for a couple reasons: the filter of plain error is never a defendant’s friend, and besides, the defendant had signed a detailed factual proffer of the uncomplicated crimes, so the superficial violation of Rule 11 hardly mattered. Yet the Presendieu opinion offers us shiny baubles on a pair of sentencing questions. First, the district court’s loss amount was far too high for one defendant, Jean. Although Jean knew generally that she was part of a larger scheme, that fact alone was not enough to tag her with another defendant’s loss, especially where Jean did not know that actor existed and knew nothing at all of her crimes. A mere conspiracy alone does not establish U.S.S.G. 1B1.3’s necessary proof of “jointly undertaken criminal activity.” Second, the district screwed up in refusing Jean’s overture for a minor-role reduction. The court wrongly considered only one of the collection of factors listed in U.S.S.G. § 3B1.2, comment. n.3. The opinion offers a useful, DIY manual on minor role.
Does the Florida crime of sexual battery with a deadly weapon fit within the Armed Career Criminal Act’s elements clause? Yes, at least for now. In United States v. DeShazior, the panel follows the ACCA path armed with its familiar tool: the categorical approach. The court presumes that sexual battery alone does not require the degree of “violent force” required by the Supreme Court, but then asks: Does the use of a deadly weapon during a sexual battery necessarily turn the crime into an ACCA violent felony? Yes. Although counsel offered marvelous arguments that an actor might commit the crime not through the direct use of force, but only through the indirect use of force (e.g., by sloshing bleach in a victim’s face, or commanding a dog to “sic” a victim), the panel was unmoved. One practice tip: the panel held, too, that Florida’s aggravated assault statue continues to be an ACCA violent felony. But the binding precedent that tells us so, Turner v. Warden, is ripe for challenge through an en banc petition. Judge Jill Pryor, for one, has invited such a petition.
In Cintron v. Attorney General, Judge Jill Pryor, a faithful scholar of the categorical approach, writes for the panel and concludes that FL § 893.135(1)(c )1, a self-described “drug trafficking” statute, is not an aggravated felony because it is both overbroad and indivisible. The statute provides that “[a]ny person who knowingly sells, purchases, manufactures, delivers or brings into the state, or who is knowingly in actual or constrictive possession of” certain drugs is guilty of a felony known as “trafficking in illegal drugs.” Federal law, 8 U.S.C. § 1101(a)(43), includes “drug trafficking crimes” in its definition of aggravated felony. But under federal law, a drug-trafficking crime does not include simple possession of drugs. Florida’s version does. The panel recites the familiar tenets that a court can only examine Shepard documents and use the modified categorical approach when a statute is divisible (i.e., it creates distinct crimes with different elements). The court first looks to the statute’s text (e.g., does it provide tiered punishment for each form of the crime?) to determine if a statute is divisible. If the text is not clear, we study state case law, the indictment, and jury instructions. If the answer is not clear even then, the ambiguity is resolved in favor of indivisibility and the categorical approach. But Florida case law tells us this drug statute is indivisible. And because the statute includes simple possession, it is broader than a federal “drug trafficking” crime. This is not an aggravated felony, in spite of the state crime’s misleading title. This story proves that we should never assume that a crime qualifies as a predicate offense until we research state law. When is a drug trafficking crime not a drug trafficking crime? Perhaps more often than we realize!
Contributors: Rebecca Shepard, Kendal Silas, and Nicole Kaplan.


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In 2008 the Federal Department of Justice Canada, along with the assistance and contribution of the University of Toronto and Dalhousie Law School published the Spousal Support Guidelines in order to assist family law lawyers and Judges in ascertaining an assessment of spousal support. It is however important to note that the Spousal Support Advisory Guidelines are, unlike the Child Support guidelines neither legislated nor binding, and in this regard are advisory only. Nevertheless, despite their non-binding nature they represent a synthesis of case law regarding spousal support and are not only incredibly useful but also highly persuasive in the Courts.
Where the Spousal Support Guidelines are in conflict with any applicable authorities (the applicable authorities will prevail); etc.
The application of the Spousal Support Guidelines can also result in divergent results based upon regional, rural and urban variations based upon the merit of differing costs of living. Additionally, the Spousal Support Guidelines are not meant to be used as a formula or software in order to calculate the precise amounts of Spousal support or maintenance, they are to be considered contextually and applied in their entirety. In light of the aforementioned it can be said thus that although the Spousal Support Guidelines are a useful starting point for a spousal support assessment, the individual circumstances of the parties can result in divergent results.
Slongo v. Slongo  O.J. No. 1634; the payors income exceeded $350,000, however the SSAG formula still applied for a year where a lump sum pension payment was taken in order to compensate the recipient, the courts held that the recipient was entitled to the support calculated by considering the Spousal Support Advisory Guidelines formula to the full amount.
Rossi v. Rossi  O.J. No. 4136; A one-and-a-half-year marriage where the payor paid 7 times the maximum support as stipulated in the guidelines in interim relief. The courts consulted the guidelines and support was cancelled.
Waye v. Cook  O.J. No. 6241; Spousal Support Advisory Guidelines considered by the courts. The parties were over 65 years of age and the wife found to have been economically disadvantaged by Husbands career move to Europe. Spousal Support granted at the mid point between the low and mid of the Spousal Support Advisory Guidelines range.
Cork v. Cork  O.J. No. 2006.
The wife applied to increase temporary spousal support from a monthly $18,361 to $19,000 on the grounds that the Husbands income had increased from $536,674 to $552,949. The courts found that $40,000 was to be calculated in the wife’s income due to her failure to upgrade skills. SSAG calculations were applied and since the parties were in long term marriage the spousal support range was found to be between 37.5% and 50% of the difference in gross income and spousal support was reduced to $16,000 per month.
What this appears to mean is that the courts may (as SSAG is not binding) apply the SSAG formula up till the $350,000 of the income, and any income above that will be subject to additional considerations.
Niranchan v. Nadarajah  O.J. No. 1400; The SSAG formula for calculating the quantum of support was found to be inadequate and incapable of providing for the basic needs of the wife who was previously completely self-sufficient in Sri Lanka and gave up job there to move to Canada. The courts disregarded the SSAG and made order of 61.3% of the net-disposable income of the husband (higher than the SSAG formula granted).
Skirten v. Lengyel  O.J. No. 679 ; Both parties had a very low income, the SSAG formula stipulated no spousal support in this situation but the courts chose to disregard this and ordered $50 per month spousal support.
Cantave v. Cantave  O.J No. 4142; Mother and father had a separation agreement whereby the Mother who earned more agreed to pay the father. The Father breached the separation agreement by voluntarily and unanimously giving up an additional year of employment where he would have made $76,000. The courts held it would be unfair to require that the mother continue to pay the Father despite his voluntary refusal to earn where he could have. Interim (temporary) support of $1,700 per month for 5 months ordered in order to allow the father to transition.
Simpson v. Grignon  O.J. No. 1915 (Ont. S.C.J); the Spousal Support Advisary Guidelines calculation of spousal support was found to be insufficient for a wife who had suffered from a disability from the start of the four-and-a-half-year marriage. A higher amount than that of the SSAG was ordered in her favour.
To get advice on your own Spousal Support entitlement or obligations please contact MEHDI AU LLP today and one of our Family Lawyers on staff will look into to your matter and provide advice tailored to your specific matter.

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Voyager 1 and 2 explored the outer planets, Jupiter, Saturn, Uranus and Neptune and are now investigating interstellar space as they leave the solar system.
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Morishima, R.; Spilker, L.; Brooks, S.; Deau, E.; Pilorz, S.. Incomplete cooling down of Saturn's A ring at solar equinox: Implication for seasonal thermal inertia and internal structure of ring particles. 52 pages, 19 figures, Icarus in press; doi:10.1016/j.icarus.2015.06.025.
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Present: GRANT, KEVILLE, & ARMSTRONG, JJ.
At the trial of an indictment for arson, the opinion of an investigator as an expert that two simultaneous fires in the building were independent and were incendiary was not inadmissible as hearsay, although he did not arrive at the building until after the active fires had been brought under control, and he discussed the investigation he then made and his conclusions with other investigators and firefighters there, where it appeared that his investigation comprised a long personal examination of the entire premises and that his opinion was based primarily on facts he himself observed and to which he testified [266-267]; nor was the expert's opinion that the fire was incendiary inadmissible as subject matter for the jury, or as mere conjecture, although the expert did not know the specific incendiary agent used and his opinion was based largely on the elimination of causes rather than positive evidence of incendiarism, where extensive probing eliminated any danger of relinquishment by the jury of "independent analysis of the facts" [267-272].
Lack of compliance with the procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, which made a deliberate alibi statement by the defendant inadmissable in the Commonwealth's case in chief at the trial of an indictment against him did not preclude its use, after a voir dire and under principles laid down in Harris v. New York, 401 U.S. 222, in cross-examination of the defendant to impeach his testimony on direct examination with respect to an inconsistent alibi [272-273]; a pre-trial assurance by the Commonwealth that it would not "rely upon or use" the earlier alibi statement went only to reliance and use in its case in chief .
INDICTMENTS found and returned in the Superior Court on October 5, 1970.
Robert V. Greco (Robert F. Fandel with him) for the defendant.
John M. Lynch, Special Assistant District Attorney (Robert F. McKenna, Jr., Legal Assistant to the District Attorney, with him) for the Commonwealth.
ARMSTRONG, J. This is an appeal under the provisions of G. L. c. 278, Sections 33A-33G, from convictions on two indictments charging (1) arson of the Congregation Agudath Israel Synagogue in Boston on the morning of May 27, 1970, and (2) breaking and entering the synagogue in the nighttime with intent to commit arson.
The defendant has presented and argued two of his assignments of error. Those assignments not argued are waived. Commonwealth v. Wilson, 357 Mass. 49, 51.
1. Over the defendant's objections, the trial judge allowed the Commonwealth to elicit an opinion by one Heggarty, a lieutenant assigned to the arson investigating squad of the Boston fire department, to the effect that there were two independent fires in the synagogue, and that they were incendiary in nature. The defendant argues that this testimony was inadmissible because it was based on hearsay; that it was not a proper subject for expert testimony; and that it was not really an opinion at all, but only conjecture.
at the scene, and with other fire fighters there. While Heggarty's official report categorized the fire as one of undermined origin, this conclusion is not inconsistent with his opinion that the fire was set.
The problem with an expert opinion based upon the hearsay of others is that "[s]uch an opinion would or might well be founded upon facts, the truth of which could not in the nature of things be established to the satisfaction of the jury because no competent evidence respecting them would be before the jury." Commonwealth v. Russ, 232 Mass. 58, 74. Commonwealth v. Harrison, 342 Mass. 279, 287-288. The problem does not exist in this case.
own foundation. His opinion was not inadmissible as based upon hearsay.
The defendant next contends that the question whether or not the fire was incendiary was not a proper subject for expert testimony, but on the contrary is a subject within the experience of the ordinary juror. "Where jurymen would have no difficulty in forming an opinion for themselves the testimony of an expert witness has no place. . . . On the other hand if a situation is presented on the evidence of such character or complexity that it cannot be assumed to be within the ordinary experience or knowledge of men the testimony of a qualified expert is admissible for such help as it may, if believed, give to the jury." Jackson v. Anthony, 282 Mass. 540, 544. "There is no prescribed formality for the admission of expert testimony. All that is necessary is that the subject matter be one about which special knowledge beyond that possessed by the ordinary juryman will aid the jury in their deliberations, and that a person possessing such knowledge give opinions pertinent to the issues of the case founded upon facts which either are conceded or could warrantably be found upon other evidence." Lovasco v. Parkhurst Marine Ry. 322 Mass. 64, 67. Commonwealth v. Makarewicz, 333 Mass. 575, 591-592. Commonwealth v. Boyle, 346 Mass. 1, 4.
The opinion of a properly qualified person concerning the cause of a fire is generally admissible in evidence. Edward Rose Co. v. Globe & Rutgers Fire Insurance Co. 262 Mass. 469, 472. Gechijian v. Richmond Insurance Co. 305 Mass. 132, 142. Commonwealth v. Reynolds, 338 Mass. 130, 134. Sheldon Forwarding Co. v. Boston & Maine R.R. 339 Mass. 679, 683-684. Kenney v. Sears, Roebuck & Co. 355 Mass. 604, 606-608. McLaughlin v. Bernstein, 356 Mass. 219, 222-224. M. C. Carlisle & Co. Inc. v. Cross, 386 F. 2d 672, 676 (1st Cir.).
cause live cinders to blow onto the plaintiff's property the boundary of which lay six feet downwind. The exclusion was sustained, not only because the opinion was immaterial, since the defendant was liable for damages caused by the spread of the fire whether it was probable or not, but also because it related "to a subject within the common knowledge of the jury." That case does not control the one before us. The causes of fires in buildings are less familiar to today's urbanized population than were the habits and dangers of brushfires to an agrarian population more than one hundred years ago.
of the original papers shows that Rodziewicz also argued that it was error to permit the same witness to state his opinion that there were six separate fires. Although the case might have been retried, the court did not suggest that this opinion was improperly admitted, perhaps because no matter how simple a conclusion it seems superficially, the possibilities implicitly excluded might be complex.
Commonwealth v. Rodziewicz has been cited and argued by litigants, in such cases as Gechijian v. Richmond Insurance Co. 305 Mass. 132, and Commonwealth v. Reynolds, 338 Mass. 130, in an attempt to exclude expert opinion as to the cause of fire. It has not been given that effect in any case we have found (cf. Bradford v. Boston & Maine R.R. 225 Mass. 129, 135); indeed, in the two cases referred to, the court did not even deem it necessary to address itself to the argument. And in the recent case discussed above, Commonwealth v. Rucker, 358 Mass. 298, although the expert's opinion as to the cause of the fire was held inadmissible because based on hearsay, the court expressly suggested that the defect could be cured on retrial by introducing first-hand testimony of the facts upon which the expert predicated his opinion, and did not suggest that the opinion as to cause suffered from any other infirmity.
Brownhill v. Kivlin, 317 Mass. 168, that careless cigarette smoking caused an automobile fire. In that case the fire chief had little basis to support an opinion so particularized; in the case before us, the opinion is more general and the basis more suggestive. As an abstract proposition it would seem possible for an arsonist to employ a causative agent which would be wholly consumed in the fire he set, and nevertheless for an experienced investigator reasonably to infer incendiary origin from systematic elimination of other possibilities. That further inferences as to details may be deemed unwarranted conjecture, and inadmissible, only illustrates that the distinction between what is reasonable and what is not is one of degree and not of kind.
unusually extensive probing laid bare the strengths and weaknesses of the basis for the opinion, and had the effect of whittling it down in size. After careful consideration of Heggarty's entire testimony, we are of the opinion that the danger had been satisfactorily eliminated that "the jury might forego independent analysis of the facts and bow too readily to the opinion of an expert . . .." McCormick, Evidence (2d ed.) Section 12, p. 27.
2. The second assignment of error argued by the defendant is directed towards the prosecution's use, while cross-examining the defendant, of a prior inconsistent statement for impeachment purposes. The prior statement, made by the defendant to the police in the dock of the Dorchester District Court just before his arraignment, was an alibi inconsistent with an alibi later used by the defendant in his direct testimony. The trial judge in the Superior Court, after a voir dire, ruled that the prior inconsistent statement, although inadmissible in the prosecution's case in chief because of lack of compliance with the procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, could be used in cross-examination for impeachment purposes under the principles laid down in Harris v. New York, 401 U.S. 222.
who was to corroborate it when approached. See Commonwealth v. Pratt, 360 Mass. 708, 714.
The defendant also argues that the prosecution's use of the earlier alibi in cross-examination violated an earlier assurance by the Commonwealth that it would not "rely upon or use" the alibi. We agree with the conclusion reached by the trial judge that the Commonwealth's assurance went only to reliance upon and use of the defendant's alibi statement in the Commonwealth's case in chief. We do not agree with the defendant's argument that because Harris v. New York had not been decided or even argued at the time the prosecution could not have contemplated a distinction between using the statement in its case in chief and using it for impeachment. [Note 2] It seems more probable that the attorneys for the Commonwealth and the defendant were only addressing themselves to the evidence the Commonwealth would introduce in its own case. At that time the defendant's first alibi was of little or no significance to the Commonwealth's case; only when the defendant uttered his second alibi at the trial did the first alibi statement become significant. Something more certain than what appears here would be required to convince us that the Commonwealth intended to bargain away its ability to meet the case for the defence as it developed.
[Note 1] The doctrine of harmless error appears to have been applied very restrictively at the time. See, e.g., Commonwealth v. White, 162 Mass. 403, 405, and Akeson v. Doidge, 225 Mass. 574, 575, both cited in Wigmore, Evidence (3d ed.) Section 21, fn. 17, p. 384, as examples of undue strictness in reversing for trivial errors, and Note, The Harmless Error Rule Reviewed, 47 Colum. L. Rev. 450, at 450.
[Note 2] Four State Courts had previously taken the position later vindicated by the United States Supreme Court; People v. Kulis, 18 N. Y. 2d 318; State v. Kimbrough, 109 N. J. Super. 57; State v. Butler, 19 Ohio St. 2d 55; State v. Grant, 77 Wash. 2d 47. The possibility was also considered in commentaries: 20 Syracuse L. Rev. 494, 500; 36 Brooklyn L. Rev. 41, 44-45; 35 Fordham L. Rev. 723; 13 N. Y. L. Forum 146.

matches: v. v. V. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


This section, from §5.2 on, is based on the parts of Aitken (1971) that are concerned with orthographic variation, shortened and revised for the purposes of this Preface, and with some additional material from Aitken (2002). Meurman-Solin (1993a) tested some of Aitken's observations using her Helsinki Corpus of Older Scots (HCOS): some of her findings are mentioned below.
Since Aitken's (1971) account, Kniesza has added significantly to our knowledge of OSc orthography.
it is possible that the <ui> spellings for Vowel 7 should also be traced to the West Riding of Yorkshire, where the modern dialect pronunciation of this vowel is /ʊi/, and where <ui> spellings appear in place-names from the second half of the 15th century. In this case, however, the orthographic convention did not become widespread in Yorkshire and it is therefore hard to see how it could have reached Scots. Meurman-Solin (1993a: 198) finds that this digraph is "conspicuously late compared with other digraphs". Possibly it was generated on the model of the other i-digraphs.
Kniezsa (1997) also traces the origins of the interchangeable set <u, v, w> to the influence of Irish spelling on ONhb. Already in late ONhb <u, wu, uu> were used for both consonant and vowel values. (Since <v> is in origin a form of <u> its membership of this set is not problematic, and <u, v> also interchange in ME.) ONhb also already had <ch> for /x/ and for /ʧ/.
<ae> for Vowel 4, e.g. frae (see §8.2.1).
From the general viewpoint of the lexicographer surveying MSc over its whole chronological, regional and stylistic range, the spelling system was a perhaps extreme example of a common medieval European type, in which free variation was a prominent and important feature. For instance, among suffix syllables sets like the following occur: -is, -es and -s; -ill and -le; -ioun, -iown and -ion; -our and -or; -ure and -our, -or; -ar, -are, -air and -er; -y, -ie and -e. Some of the variations MSc simply inherited from nME. Others were, it seems, largely its own, for instance a largely interchangeable set consisting of postvocalic <th, ch, tht, cht> and superscript <t>; and spellings reflecting l-vocalisation.
And though, in the course of the 17th century, the native spelling system largely gave way to a much less variable anglicised system, the old tolerance of spelling variation has continued in ModSc down to the present day.
It would be surprising, since presumably all writers of MSc had access to this general varying system, if any one text or writer proved to possess a completely consistent practice with one and one only spelling for each word, a fixed spelling system. As a glance at any full glossary or description of a MSc text will show, few if any MSc scribes (or printers) are wholly consistent. Some degree of free variation was normal in the spelling practice of individuals as well as over the system as a whole. And some scribes, like the writer of the Laing MS of Pitscottie's Chronicle, are indeed highly inconsistent, varying freely between different spellings of single items, sometimes in quite short stretches of text, in what, to us, may seem a curious and striking manner. Without this habitual tolerance of spelling variation, the changes in popularity of particular variants and the introduction of new variants, including the anglicised spellings common in later 16th century texts, could hardly have occurred.
It is nevertheless true that all writers of Middle Scots seem also to display some greater or lesser degree of consistency in some at least of their spelling habits. For instance, Gilbert Hay (1456) has, in one of his works, only two examples of <mair> to 221 of <mare> 'more'. In the choice between initial <v> and <w>, some scribes have a strong preference for <v>, spelling e.g. both <veill> 'veal' and <veill> 'well'; others prefer <w>; some have a 'modern' distribution of the two letters; some seem merely inconsistent; and there is one instance of an invariable preference of <u> to either <v> or <w>, in the person of King James VI. No doubt all writers had access to the general variant system; but each made his own personal and idiosyncratic selection from the alternatives available to him.
ffirst, that he newir vseit to wrytt ane 'ȝ' in the begynning of ony word, sik as 'ȝow', 'ȝouris', 'ȝeild', 'ȝea', and siclyk; bot ewir wrait 'y' in steid of the said 'ȝ'; that he wrait all wordis begynning with 'w' with ane singill 'v'; and quhan that letter 'v' fell to be in the myddis or end of ane word, he wrait ane doubill 'w'; that quhen he wrait 'quhen', 'quhair', 'qlk', or ony sik word, quhilk vsis to be writtin and spellit be vtheris with 'quh', he wrait onlie 'qh', 'qhen', 'qhair' and siclyk; quhaneuir ane word began with 'con', he newir wrytt 'con' at lenth, bot with ane '9'. Quhan euir 't' fell to be in the end of ane word, he wraitt it without ane straik throw the 't'; and did the lyk quhan ewir 't' fell in ony pairt of ane word.
for betrayid (line 382) read betraysit, for suppleit (390) suppleid, for dunt (537) dint, for glaid (554) glad, and for iustifeit (574) iustifyid.
When different recensions of the same original can be compared, they often show consistent differences in their choice of variants. Whereas the copyist of the Edinburgh MS of Barbour's Bruce regularly has gan (the auxiliary verb), gres 'grass', hundir 'hundred' and leawte 'loyalty', his contemporary of the Cambridge MS as regularly prefers can, gyrs, hundreth and lawte, laute. Similarly, Sheppard writes: “The complete orthographical independence of the sixteenth-century scribes is shown by a comparison of the Boece manuscripts. Each scribe has a characteristic and (more or less) consistent mode of spelling” (1936: 211).
Much that we know of MSc spelling and phonology implies a reasonable fit between the orthographic and phonemic systems, with a few exceptions such as the 'artificial' spelling of the indefinite article as ane before consonants as well as before vowels. Many of the misfits are due to a tendency to retain established spellings after the sounds that they had formerly reflected had undergone change. For instance, the early 15th century coalescence of /al/ with /au/ (l-vocalisation, see §6.23) is slow to be reflected in word-final conditions, so that hall 'hall' and haw 'livid' continue in general to be so distinguished in spelling throughout the period. Similarly, the emergence of MSc doublets in Vowel 4 as well as in Vowel 2 in words like dede 'dead' and dethe 'death', which had Vowel 3 in ESc, is partly concealed by a persistent preference of most writers for the traditional <e-e> or <ei, ey> spellings (which were shared by Vowels 3 and 2), in contrast with the rare and tardy occurrence of the <a-e, ai, ay> spellings that imply Vowel 4.
mak and maik, blak and blaik 'black', lak and laik 'lack', tak and taik 'take', brek and breik 'break', spek and speik 'speak', glad and glaid; waik and tway beside wauk, walk and twaw, giff and liff beside geve and leve, mekill and sekir beside mickill and sicker, abuif and abuin beside abouf and aboun, chese beside chuse, lese beside los, warld and warldly beside wardill and wardly, seildin beside seindill 'seldom', brin and thrid beside birn and third, brander and hunder beside brandreth and hundreth (and houndreth), broder and fudder beside brother and father, bus and mers beside busk and mersk, nar beside nere, neist beside nixt, nerrest and narrest beside nerest, heich and hey 'high', laich, lauch and law 'low', multiple sets like the various forms of 'great' (grett, greit, gritt, gryte, gert, gart and girt) and a similar set for 'grass'.
One very numerous group exists among the principal parts of most 'strong' and some 'weak' verbs, where analogical processes supplemented the simple phonological and morphological causes which gave rise to the variants already instanced. This phenomenon is an important fact of life for the student of MSc.
There are also instances in which it is more than likely that we are seeing the conservatism of the spelling system, rather than the deliberate representation of the older phonological variants, as with the unreduced members of the pairs ak and act, effek and effect, temp and tempt, count and compt, nummer and number.
The general trend was plainly towards the accumulation of a larger and larger number of variants, only partly offset by the obsolescence of items like ȝude 'went' to leave only ȝeid (itself later superseded by the uncommon analogical gaid, or by went) or hevid beside heid. Again, the habit of tolerating this sort of variation perhaps provided a suitable condition for the ready acceptance, in the later 16th century and 17th century, of a massive number of additional variants of English derivation like oath, more, most, quhom, quhich, so, only, owe, kingdom, much, either, any, from, if, would as alternatives to the native aith, mare, maist, quham, quhilk, sa, anerly, aw or aucht, kinrik, mekill, owther, ony, fra, gif, wald.
Variants of this type are of course not unknown in other dialects and languages (including ME and EModE). MSc, however, seems to have been quite exceptional in possessing an extremely large number for which, at present, no regional or other specialisation of distribution is apparent - which co-existed as free variants over extensive regions and often in single, including some holograph, texts.
At least in holograph texts, written variants of this type may imply that the writer either used or was familiar with the spoken form or forms to which these written variants correspond; that, for example, a writer who wrote greit and grett 'great' in fact knew the spoken forms with Vowels 2 and 16 respectively in his own or his neighbours' speech. But we cannot of course guarantee, even for holograph texts, that this was the case once these spellings had come into established use. What were phonemic variants for one writer may have been merely orthographic for another. We are often not certain whose favoured pronunciation is being revealed to us - that of the writer himself, his writing teacher, those writers who set the national MSc standard, or some other. There are also occasional spellings like neixt ‘next’ that blend phonemic variants (in this case, usually spelled nixt and neist) and are quite indeterminate as to the writer's preference between spoken doublets.
Indeed, some quite clear instances exist of scribal defiance of phonemic principles of spelling. Most NE scribes prefer standard MSc spellings like quhare or quhair although it is likely that their own pronunciation would have been /f/, and indeed a few of them have occasional spellings in <f>, such as for and fair. We may imagine, too, that in writing English forms like oath, if, from, would, writers in the early stages of anglicisation were misrepresenting their speech-habits.
There are ambiguities inherent in the basic system of phoneme-grapheme equivalence itself. In MSc, as in other orthographic systems of a similar type, individual graphemes commonly participated in more than one orthographic set. Thus the graph <a> participated in the Vowel 4 set <a, a-e, ai, ay> as well as being the usual spelling for Vowel 17, so that such a spelling as lard, out of context, is completely ambiguous as between 'lard' and 'laird'. Forms like gret may be ambiguous, though grett (Vowel 16) and grete, greit (both Vowel 2+3) are as a rule not. Equally, the commonest spellings for 'two' and 'who', namely twa and quha, overlap between the sets <a, ai, ay> (Vowel 4) and (in a labial context) <a, au, aw> (Vowel 12); the unambiguous spellings tway and quhay are rather less common; and the unambiguous spellings representing the other doublets, twaw and quhaw, are rare. By studying the specific habits of individual scribes some of these may be resolved: thus some scribes avoid <a> for Vowel 4. But this will be defeated if the scribe is at all inconsistent in his habits and no doubt a large residue of unsolvable ambiguities will remain.
tyrd (fol. 8a), clat (9a), a towsand v hundyrd (9b), tre hundyr bollis (ibid.), tolboud (10a), triys, triis (12a), hunderet (14b), etc.
Seing he wes ane man so guidlyk and ritche . . . and scho ane vgle harlot quyne; ibid. 178 (see quine n.1 2).
Still another class of occasional phonemic variant spellings exists in which the distribution of the implied spoken forms was apparently by register rather than by region. This is most obvious with certain items of that group of words which underwent phonetic reduction by the loss or assimilation of intervocalic or final consonants, resulting in the emergence of reduced and unreduced doublets, such as aw and all, deil and devil, mow and mouth, and so on. In every case both doublets persisted at least as orthographic variants. Since many of them are still represented in the modern Scots dialects by spoken doublets, it seems that for MSc most of them can also be classed as phonemic variants. The reduced members of these variant sets are evidenced also in reverse spellings like ewine for ein 'eyes' (after evin, ein, 'evening') (Leg. S. ii 557) and send for sen 'since' (after send, sen, 'send') (Cullen Chron. Aberd. 50), and in innumerable instances in rhyme, like evin (evening) with wene (Kynd Kittok 12) or sen ‘send’ with den (Henr. Fab. 556).
Some examples of this sort of variant show no obvious tendency towards specialisation of distribution. It appears, for example, that hauch, bow, trow, know, row and gouff were as common in all classes of text as halch, boll, troll, knoll, roll and golf, and fouth and stouth seem to have completely superseded fulth and stulth. Clais seems to have been as widely and freely used as clathis; ill and evill, though unrelated, were apparently regarded as variants of this kind and interchange freely (for example, in different recensions of the same text); and the specialisation of fow as opposed to full is apparently by semantics rather than by dialect or register. With sets like aboun, abone and abovin, abuvin and lesum and leve-, leifsum, the reduced variant is much the more common, without any evident specialisation of distribution of either alternative.
But, when all these have been excluded, there remains a large residue of reduced forms that seem to have been restricted (see §9.3.7). It is possible also that some, though clearly not all, of the aphetic forms that are such an obvious characteristic of the MSc morpheme system may have a similar distribution: possibly for instance chete, cheit (beside escheit) and tach and tachment (beside attach and attachment); though apparently not fect, feck (beside effect), levint (beside elevint, alevint eleventh) or mendis (beside amendis).
Perhaps the narrowest limits of variation in this way will prove to be those adhered to in some of the printed prose and verse of the later 16th century, as if the Scottish printers were moving, like their English opposite numbers, towards a fixed spelling; this movement, if it existed, came to an end when, early in the 17th century, the Scottish printers abandoned the native spelling tradition altogether for an imported English one. Among the 16th century manuscript sources, however, the great national registers (of Parliament, Privy Council, and the Great and Privy Seals) and almost all the existing copies of the major literary texts in prose and verse, also conform to relatively narrow limits of variation. And much the same range of variants is adhered to by many other writers of that century, including local clerks, minor officials and the writers of private records. If we assume that it was writers like these royal and literary clerks who set the standards of spelling and of other literary usages, then we may regard this limited, majority practice as the 'standard' form of written MSc. Meurman-Solin's data confirm "that there was a fairly uniform … standard not only up to the Scottish Reformation but quite clearly - in the majority of texts - up to the first half of the seventeenth century" (1993a: 239). That there was a contemporary belief in the possibility of some such standard is implied in the frequent complaints of or apologies for “wrang ortographie and fals spelling” (see orthographie n. (a)).
But the boundaries between this standard system of spelling and less conformist systems was neither sharply defined nor immutably fixed. Occasional irregular or substandard spellings do turn up in otherwise 'correctly' spelled texts, like thua 'two' and bethuix 'betwixt' in one early MS of Bellenden's Boece, and staw (p.t. of stele 'to steal') in another. Even so, the very rarity of these is strong proof of the general rule of the standard spelling: staw, for example, appears to be recorded only once in a MS of over 300 folios, as against the commoner stall. The available glossaries to other literary prose are equally unproductive of these irregular spellings. The highest single yield, that from the Laing Pitscottie, includes schoissin 'chosen', schyre 'chair', staw (p.t. of stele), stowin (p.p. of stele) and schowne, shone and sowun among the variants of 'soon', in each case only as a much less common (sometimes unique) variant of the regular spelling(s). But as more data become available it may turn out that there were others among the late 16th- and early 17th century literary and official scribes and men of letters who, as well as enlarging their scope of spelling variation with the new anglicised spellings, were also relaxing some of the traditional Scottish prohibitions. With spellings like ga 'gall' and stowin 'stolen', blaithe 'blithe' and whait 'white', swyt 'sweat', sweik (= swilk or sic 'such'), schosin(e) 'chosen', lainthe 'length' and strainthe 'strength', Rev. James Melvill is at least one instance of a highly literate writer of late MSc who was no longer conforming strictly to the earlier rules of correct orthography. Most of these and others like them, however, appear in Melvill's personal narrative; in copying official documents and formal declarations, including those originally composed by himself, his spelling standards were perhaps less relaxed.
Writers of texts of the strikingly substandard category include a number of local clerks (for example, certain of the burgh clerks of Aberdeen, Ayr, Dunfermline, Elgin, Inverness, Peebles, Selkirk, Stirling and Wigtown) and some writers of private documents, such as letters and accounts (see also §8.3.2).
Some of the spellings employed by writers such as these are extremely idiosyncratic: John Wallwod's habit of doubling his initial <ll > (on analogy with <f>) in e.g. lledein 'leading' or 'loading' and llent (1600 Misc. Hist. Soc. X 67), or his unique spelling of 'silver' as selder (1602 ibid. 73) (a reverse spelling on the analogy of the loss of <d> after <l> in some other words, and with <e> for <i>), or the practice of the Stirling clerk of writing <sy-> for normal <sw->, e.g. in syourd 'sword', syene 'swine', syoerne 'sworn' (1525 Stirling B. Rec. I 24, 25) or the same clerk's <kt> for normal <cht> in slaktir (1526 ibid. 26), or his quite logical (but unique) lujene (for luging 'lodging') (1525 ibid. 23), or Skipper Morton's unique phonemic spelling of 'narrow' as nawreye (a1600 Skipper's Acc. (Morton) 48a).
More often, however, these irregular or substandard spellings conform to recurrent patterns common to this group of writers as a class.
chep, cheip 'sheep' (1468 Peebles B. Rec. I 157, 1503 Dunferm. B. Rec. I 132, 1557 Inverness Rec. I 10), flecht and flechour (as well as flescheir) (1522 Stirling B. Rec. I 15), feych 'fish' (1532 Selkirk B. Ct. (ed.) 121).
tha tyngis (14. . Liber Calchou 449), efter the theching of this trethis (ibid. 451), at thwa termis (1456 Peebles B. Rec. I 113), ragrathing (1520 Stirling B. Rec. I 7), scheit ('sheath') makar (1521-2 ibid. 14), thwa siluer ringis (1540 Elgin Rec. I 49), outout (= outouth 'outwith') (1541 ibid. 65).
ra- beside re- in e.g. ragratour, ralef, raward. Meurman-Solin (1993a: 243), however, finds this in all text types in the period before 1570.
Some of these variations are no doubt phonological in origin. Evidently, like some illiterate spellers today, these substandard spellers were given not only to inexplicable idiosyncratic modifications of the spelling system, like the Stirling scribe's <sy->; but also to improvements in the direction of greater phonological accuracy, like -ene, -ein for the verbal noun ending, confirmed in modern speech and early rhyme; it may well have been, in spoken use, more common than its Vowel 15 doublet which the standard spelling -ing, -yng on the face of it represents.
But of course in the absence of external confirmation of this kind we must be much more cautious. It may be that the interchange of <sch> and <ch> noted above originally arose from an assimilation in some or all positions of /ʧ/ to /ʃ/ in some dialects (as in modern Caithness) or idiolects, and that the spellings noted above either directly reflect this or follow as reverse spellings. Similarly with the interchange of <th> and <t>, reflecting a merger of /θ/ with /t/ (as in 17th century Galloway and modern Orkney and Shetland, as well as many varieties of English). This explanation would have the advantage of accounting for the tendency of these spelling habits to recur in widely dispersed texts. At the same time, we cannot exclude the possibility that we are dealing with purely orthographic phenomena.
 Also, of course, <ay>, etc.
 As well as some dual etymologies that yielded variants in Vowels 4 and 8 (see Aitken, 2002: §22.3.2).
 The Linguistic Atlas of England (Orton et al, 1978) writes this as [ui].
 Her table 2.1 lists features that distinguish Scots from PreStE. This includes both phonemic and graphemic features - CM.
 Kniesza (1997: 37) adds -on, -oun and -us, -ous - CM.
 Including, as Kniesza (1997) demonstrates on the basis of LALME, some that Aitken took at this time to be peculiar to Scots - CM.
 The interchange of <c, t> in this set is perhaps adequately explained by purely orthographic considerations, namely the confusability in secretary hand of <c> and <t>. However, NE Scots affords a phonological basis for the interchange of <th> and <cht>, with /θ/ occurring in modern speech for /xt/ in dother (for dochter), noth (for nocht), and mith (for micht) (SND: Introduction, §138; Macafee, 1989: 438). The sound-change /xt/ > /x/ suggested by Meurman-Solin (1997b: 121) is not noticed in the literature on the modern dialects, as far as I know, but is heard in Lanarkshire speech at the present time - CM.
 Aitken (1971) lists examples. Meurman-Solin (1993a: 240) finds that <v> for /w/ is absent from entire genres in her corpus, but that there is no meaningful distribution. MacQueen (1957: 95) finds that the traditional interchangeability of <u, v, w> allows spellings like <toun> and &ly;doun> to linger on sporadically in the first half of the 18th century, joined, conversely, by spellings like <thowghts> 'thoughts' - CM.
 Word-initial <u> is "exceptional" (Kniesza, 1997: 35) - CM.
 From 'The Summons of Treason and Forfeiture of the Memory and Estaites of the deceased Robert Logane of Restalrig, June, 1609', in R. Pitcairn, Criminal Trials in Scotland, Edinburgh, 1833, Vol. 2, p. 288 (also 1609 Acts IV 423/1) - AJA.
 And perhaps schir 'sir' and sanct. In CSD (s.v. saint), Aitken reconstructs a pronunciation /saŋkt/, but with a question mark. Although sanct was the OE form, this appears to have been ousted by French-derived saint, and the MSc sanct is perhaps a latinism - CM.
The practice of writing the indefinite article as ane (rarely an) before consonants as well as before vowels first becomes common in the second half of the 15th century, though an instance occurs (“till an michty lord”; Slater,1952: No. 2) as early as 1379 (predating the citations s.v. ane). Many 16th century writers strongly favour ane, though seldom to the complete exclusion of a. Others, such as George Bannatyne, vary freely between these two. On the other hand, some of the copyists of the 1566 MS of John Knox's History follow the practice of writing a before consonants and an or ane before vowels (as in English, and also as in ESc). Around the turn of the 16th century the ministers James Melvill and James Carmichael have the same usage. But sporadic instances of ane before consonants continue to occur in Scottish official and legal writings down to the 18th century (see MacQueen, 1957: 397 and Glossary). That this was a merely conventional and 'unphonetic' practice is indicated, inter alia, by usages like ane-levin (q.v.), ane mendis (s.v. mendis n. 2) and ane mis 'amiss' (s.v. mis n. 6) - AJA.
 Meurman-Solin (1993a: 241) finds the mak type occurring in more conservative texts - CM.
 Even for those orthographic doublets that correspond to likely phonemic doublets, such as <mak> and <maik>, the choice of spelling in particular cases could be motivated in a number of ways, of which phonology is only one - CM.
 This can lead to other members of the two sets becoming interchanged: cf. <ȝhe> as well as <yhe, ye, þe> forms of the (q.v.) - CM.
 Alexander Wood of Old Aberdeen has three instances of for for 'where' in his copy of Q. Kennedy's Breif Tracteit (see Kuipers, 1964: 84 and s.v. in the Glossary). For some further examples of these and other NE forms, see s.vv. correll, cort n.2, cuntra(y n. (quintra) and cuntré n. 3 a (quentre, cuintrie), fayte, folp, fort and now adv., and fedill n. Several other examples are cited (without exact reference) by McKinlay (1914: 895) - AJA.
 Detailed graphological analysis may, of course, reveal such specialisation in future - CM.
 The forms quoted occur on pp. 125, 423, 126, 270, 137, 170, 128, 317, 157, of the Wodrow Society edition (1842) of The Autobiography and Diary - AJA.
 Meurman-Solin (1993a: 243) is reluctant to label this spelling 'substandard' as it occurs rather widely in otherwise conservatively spelled texts - CM.
 Perhaps to be explained, like other confusions of short and long spellings, as an indication (in this case, a reverse spelling) of SVLR-shortening of long vowels - CM.
 Possibly Vowel 7 has been drawn into the confusion between Vowel 6 and 19 spellings through the spelling <u> overlapping between Vowels 19 and 7, but for the possibility of a merger of Vowel 7 with Vowel 6 in some Northern dialects, see Aitken (2002: §7.1) - CM.