The narrator in The Heart of Midlothian (1818), as in so many of Scott's historical novels, approaches his subject through an immediate sensory perception of the relics left behind by the narrated event. In describing his boyhood memory of the gallows in front of the Tolbooth Prison, the site of the 1736 lynching of Captain Porteous with which the text begins, Scott's narrator underscores the interactions between the criminal law and its representations circulating in the cultural memory, and the potentially discursive relationship between the two across historical time. Scott wrote this description in the early nineteenth century, at precisely the historical moment when Britain's so-called “Bloody Code” was the subject of intense public debate. Across the eighteenth century, Parliament had designated an increasing number of criminal offenses as capital, resulting in a proliferation of hangings for property crimes, particularly in London. While Scotland did not see the same degree of widespread hanging as the capital, the image of the gallows nonetheless captures the trauma of mass-execution that had become an important part of the early nineteenth-century British collective memory, resulting in its abrupt cessation in the face of public opposition in the 1830s.

Scott's literary representation of this phenomenon also came at a time during which the relationship between history and law was already a significant cultural tension. The newly liberalized Enlightenment legal order conflicted with political anxieties over the relatively recent disruption to the royal succession caused by the English Revolution, and with an increasing cultural preoccupation with the archaic and the medieval.