Kings, Lords and Men in Scotland and Britain, 1300-1625: Essays in Honour of Jenny Wormald 9780748691517

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Kings, Lords and Men in Scotland and Britain, 1300‒1625

Dr Jenny Wormald. (Photo: Luke Wormald)

Kings, Lords and Men in Scotland and Britain, 1300‒1625 Essays in Honour of Jenny Wormald

Edited by

Steve Boardman and Julian Goodare

© editorial matter and organisation Steve Boardman and Julian Goodare, 2014 © the chapters their several authors, 2014 Edinburgh University Press Ltd The Tun – Holyrood Road 12 (2f) Jackson’s Entry Edinburgh EH8 8PJ www.euppublishing.com Typeset in Ehrhardt by 3btype.com, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 0 7486 9150 0 (hardback) ISBN 978 0 7486 9151 7 (webready PDF) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003 (SI No. 2498).

Contents

List of Illustrations Preface List of Abbreviations List of Contributors Introduction: Kings, Lords and Jenny Wormald Steve Boardman and Julian Goodare 1.

The Stewart Realm: Changing the Landscape Keith M. Brown

vii viii ix xii 1 19

Part I Lords and Men 2. 3. 4. 5. 6. 7. 8.

Lords and Women, Women as Lords: The Career of Margaret Stewart, Countess of Angus and Mar, c.1354–c.1418 Steve Boardman Bastard Feudalism in England in the Fourteenth Century Christine Carpenter Tame Magnates? The Justiciars of Later Medieval Scotland Hector MacQueen King, Lords and Men in Renaissance England: The Poetry of John Skelton John Watts Rethinking the Justice of the Feud in Sixteenth-Century Scotland A. Mark Godfrey Bonding, Religious Allegiance and Covenanting Jane E. A. Dawson ‘We Bund and Obleiss Us Never More to Querrell’: Bonds, Private Obligations and Public Justice in the Reign of James VI Anna Groundwater

37 59 93 121 136 155 173

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KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Part II Kings and Lords 19. Murder Will Out: Kingship, Kinship and Killing in Medieval Scotland Alexander Grant 10. The Lanark Bond Michael Brown 11. James III: Kingship and Contested Reputation Alasdair A. MacDonald 12. Beyond the Declaration of Arbroath: Kingship, Counsel and Consent in Late Medieval and Early Modern Scotland Roger A. Mason 13. Royal Gifts and Gift-Exchange in Sixteenth-Century Anglo-Scottish Politics Felicity Heal 14. The Ainslie Bond Julian Goodare 15. ‘Scotland will be the Ending of all Empires’: Mr Thomas Murray and King James VI and I Jamie Reid-Baxter Publications of Jenny Wormald Index

193 227 246 265 283 301 320 341 346

Illustrations

Figures Frontispiece: Dr Jenny Wormald 12.1 The earls and countesses of Angus in the fourteenth century 12.2 The Douglas inheritance, 1388–c.1400 11.1 The chapel of St Quirinus, Trier 11.2 The chapel of Restalrig: conjectural drawing by Richard Fawcett 15.1 James VI as Protestant warrior 15.2 Thomas Murray, Lamentationum Ieremiae Paraphrasis Poetica, prefatory epigram to James VI

ii 43 52 256 257 321 333

Tables 14.1 Earls and the Ainslie Bond in 1567 14.2 Lords and the Ainslie Bond in 1567 14.3 Bishops and the Ainslie Bond in 1567

307 309 310

Preface

We are grateful to our colleague Judith Green for reminding us of the hostage to fortune that Jenny Wormald left buried in the acknowledgements to her book Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985). By remarking on the coincidence that the earliest known bond of manrent was dated exactly 500 years before her own date of birth, Jenny had enabled scholars of 2011 to work out that her seventieth birthday was approaching. The result was a conference in 2012 celebrating her achievements – a conference in which Jenny participated with éclat, being one of the last to leave the restaurant, with her sons, at the end of a long and enjoyable day. It was always intended that the conference would be a first step towards an edited volume, and this book is the result. We are grateful to all those who spoke at the conference; mention should be made here of Steven Gunn, whose paper was promised for publication elsewhere but was much appreciated on the day. Revised versions of the other conference papers appear below, along with a number of other chapters that all address themes prominent in Jenny’s work. Thanks are due to the School of History, Classics and Archaeology, University of Edinburgh, and to the conference administrator, Adrienne Miller. Edinburgh University Press expressed early interest in the project and has been a consistently supportive publisher. Steve Boardman Julian Goodare November 2013

Abbreviations

AB Ill.

APS

BL BUK

Calderwood, History

CBP

CDS

Chron. Bower (Watt)

Chron. Wyntoun (Laing)

Complete Peerage CSP Dom. CSP For.

Joseph Robertson and George Grub (eds), Illustrations of the Topography and Antiquities of the Shires of Aberdeen and Banff, 4 vols (Spalding Club, 1847‒69) The Acts of the Parliaments of Scotland, 12 vols, eds Thomas Thomson and Cosmo Innes (Edinburgh, 1814‒75) British Library, London Booke of the Universall Kirk: Acts and Proceedings of the General Assembly of the Kirk of Scotland, 3 vols, ed. Thomas Thomson (Bannatyne Club, 1839‒45) David Calderwood, History of the Kirk of Scotland, 8 vols, eds Thomas Thomson and David Laing (Wodrow Society, 1842‒9) Calendar of Letters and Papers Relating to the Affairs of the Borders of England and Scotland, 1560‒1603, 2 vols, ed. Joseph Bain (London, 1894‒6) Calendar of Documents Relating to Scotland, 1108‒1516, 5 vols, eds Joseph Bain et al. (Edinburgh, 1881‒1986) Walter Bower, Scotichronicon, 9 vols, eds D. E. R. Watt et al. (Aberdeen and Edinburgh, 1987‒98) Androw of Wyntoun, The Orygenale Cronykil of Scotland, 3 vols, ed. David Laing (Edinburgh, 1872‒79) G. E. Cokayne, The Complete Peerage, 13 vols in 14 (2nd edn, London, 1910‒1959) Calendar of State Papers, Domestic Series, 94 vols, eds R. Lemon et al. (London, 1856– ) Calendar of State Papers, Foreign Series, 25 vols, eds W. B. Turnbull et al. (London, 1861‒1950).

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KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

CSP Scot.

DOST Dunfermline Reg. EETS EHR ER Fraser, Douglas Book HMC IR James V Letters Knox, Works L&P Henry VIII

Melrose Liber Moray Reg. NLS NRA(S) NRS ODNB PROME

PSAS RMS

RPC RPS

Calendar of State Papers relating to Scotland and Mary, Queen of Scots, 1547‒1603, 13 vols, eds Joseph Bain et al. (Edinburgh, 1898‒1969) Dictionary of the Older Scottish Tongue (www.dsl.ac.uk) Registrum de Dunfermelyn, ed. Cosmo Innes (Bannatyne Club, 1842) Early English Text Society English Historical Review The Exchequer Rolls of Scotland, 23 vols, eds J. Stuart et al. (Edinburgh, 1878– ) Sir William Fraser (ed.), The Douglas Book, 4 vols (Edinburgh, 1885) Historical Manuscripts Commission Innes Review The Letters of James V, eds R. K. Hannay and Denys Hay (Edinburgh, 1954) John Knox, Works, 6 vols, ed. David Laing (Wodrow Society, 1846‒64) Calendar of Letters and Papers, Foreign and Domestic of the Reign of Henry VIII, 21 vols, eds J. S. Brewer et al. (London, 1864‒1932) Liber Sancte Marie de Melros, 2 vols, ed. Cosmo Innes (Bannatyne Club, 1837) Registrum Episcopatus Moraviensis, ed. Cosmo Innes (Bannatyne Club, 1837) National Library of Scotland, Edinburgh National Register of Archives (Scotland), Edinburgh National Records of Scotland, Edinburgh Oxford Dictionary of National Biography (2004) Parliament Rolls of Medieval England, 1275‒ 1504, eds C. Given-Wilson et al. (Leicester, 2005) Proceedings of the Society of Antiquaries of Scotland Registrum Magni Sigilli Regum Scotorum (Register of the Great Seal of Scotland), 11 vols, eds J. M. Thomson et al. (Edinburgh, 1882– ) Register of the Privy Council of Scotland, 38 vols, eds J. H. Burton et al. (Edinburgh, 1877– ) Records of the Parliaments of Scotland to 1707, eds Keith M. Brown et al. (2007) (www.rps.ac.uk)

abbreviations RRS RSS

Rymer, Foedera

SHR SHS Spalding Misc. SRS STS TA

TNA TRHS

xi

Regesta Regum Scottorum, 6 vols, eds G. W. S. Barrow et al. (Edinburgh, 1960– ) Registrum Secreti Sigilli Regum Scotorum (Register of the Privy Seal of Scotland), 8 vols, eds M. Livingstone et al. (Edinburgh, 1908– ) Thomas Rymer (ed.), Foedera, Conventiones, Litterae et Cuiuscunque Generis Acta Publica, 20 vols (London, 1704‒35) Scottish Historical Review Scottish History Society Miscellany of the Spalding Club, 5 vols (1841‒52) Scottish Record Society Scottish Text Society Accounts of the (Lord High) Treasurer of Scotland, 13 vols, eds T. Dickson et al. (Edinburgh, 1877– ) The National Archives, London Transactions of the Royal Historical Society

Contributors

STEVE BOARDMAN is Reader in History, University of Edinburgh. His books include The Campbells, 1250‒1500 (2005) and The Early Stewart Kings: Robert II and Robert III, 1371‒1406 (1996). He has been Director of the Survey of Dedications to Saints in Medieval Scotland, and is currently completing the New Edinburgh History of Scotland, volume 5: The First Stewart Dynasty: Scotland, 1371‒1488. KEITH M. BROWN is Professor of History, University of Manchester. His books include Noble Power in Scotland from the Reformation to the Revolution (Edinburgh University Press, 2011), Noble Society in Scotland (Edinburgh University Press, 2000)  and Bloodfeud in Scotland, 1573‒1625: Violence, Justice and Politics in an Early Modern Society (1986). He has been general editor of The Records of the Parliaments of Scotland to 1707 (www.rps. ac.uk). MICHAEL BROWN is Reader in History, University of St Andrews. His books include Bannockburn: The Scottish War and the British Isles, 1307‒1323 (Edinburgh University Press, 2008), The Wars of Scotland, 1214‒1371 (Edinburgh University Press, 2004) and The Black Douglases: War and Lordship in Late Medieval Scotland, 1300‒1455 (1998). CHRISTINE CARPENTER is Professor of Medieval English History, University of Cambridge. Her books include The Wars of the Roses: Politics and the Constitution in England, c.1437‒1509 (1997) and Locality and Polity: A Study of Warwickshire Landed Society, 1401‒1499 (1992). She was Director of an AHRC-funded project to complete the calendaring of the fifteenthcentury Inquisitions Post Mortem which published volumes covering the years 1422‒47. She is at present writing A New Constitutional History of England, 1215‒1509. JANE E. A. DAWSON is John Laing Professor of Reformation History, University of Edinburgh. Her books include Scotland Re-formed, 1488‒1587 (Edinburgh University Press, 2007) and The Politics of Religion in the Age of Mary, Queen of Scots: The Earl of Argyll and the Struggle for Britain and

contributors

xiii

Ireland (2002). She has been Director of the Wode Psalter Project and is currently working on a biography of John Knox to be published in 2014. A. MARK GODFREY is Professor of Legal History, University of Glasgow. He is the author of Civil Justice in Renaissance Scotland: The Origins of a Central Court (2009) and Editor of the Journal of Legal History. He currently leads a research group with Professor Remco van Rhee of Maastricht University on ‘The Comparative History of Central Courts in Europe and the Americas’, funded from 2012 to 2015 by the Gerda Henkel Stiftung. JULIAN GOODARE is Reader in History, University of Edinburgh. His books include The Government of Scotland, 1560‒1625 (2004) and State and Society in Early Modern Scotland (1999). He has been Director of the Survey of Scottish Witchcraft, and is currently completing The European Witch-Hunt for Routledge. ALEXANDER GRANT is Reader in History, University of Lancaster. He is the author of Independence and Nationhood: Scotland, 1306‒1469 (1984). His edited books include Uniting the Kingdom? The Making of British History (1995) (with Keith J. Stringer) and Medieval Scotland: Crown, Lordship and Community: Essays Presented to G. W. S. Barrow (Edinburgh University Press, 1993) (with Keith J. Stringer). His main research area continues to be lordship and political structures in late medieval Scotland in a comparative context, as demonstrated by recent and forthcoming studies of twelfthcentury ‘Norman’ settlement north of the Forth, major Scottish bastards within the European context, and the English border family of Lucy of Cockermouth. ANNA GROUNDWATER is an historian of early modern Scotland and Britain working at the University of Edinburgh. She is the author of The Scottish Middle March, 1573‒1625: Power, Kinship, Allegiance (2010) and the forthcoming Scotland Connected: The History of Scotland and the World at a Glance (2014). She is a co-founder of the Borders Forum. FELICITY HEAL is Emeritus Fellow, Jesus College, Oxford. Her books include Reformation in Britain and Ireland (2003) and Hospitality in Early Modern England (1990). She recently edited The Oxford Handbook of Holinshed’s Chronicles (2013) (with Paulina Kewes and Ian W. Archer) and has just completed a book on Gifts and Power in Early Modern England. ALASDAIR A. MACDONALD is Professor Emeritus of English Language and Literature of the Middle Ages, University of Groningen, and Honorary Senior Research Fellow, University of Glasgow. He has edited numerous

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books, including Sixteenth-Century Scotland: Essays in Honour of Michael Lynch (2008) (with Julian Goodare), Rhetoric, Royalty, and Reality: Essays on the Literary Culture of Medieval and Early Modern Scotland (2005) (with Kees Dekker) and A Palace in the Wild: Essays on Vernacular Culture and Humanism in Late-Medieval and Renaissance Scotland (2000) (with L. A. J. R. Houwen and Sally L. Mapstone). He is currently engaged on an edition of the earliest known print (1565) of the Gude and Godlie Ballatis, for the Scottish Text Society. HECTOR MACQUEEN is a Scottish Law Commissioner and Professor of Private Law, University of Edinburgh. He is the author of Common Law and Feudal Society in Medieval Scotland (Edinburgh University Press, 1993) and of numerous works on law and legal history. He is Literary Director of the Stair Society and a Vice-President of the Scottish Text Society. ROGER A. MASON is Professor of Scottish History, University of St Andrews. He has edited numerous books, including George Buchanan: Political Thought in Early Modern Britain and Europe (2012) (with Caroline Erskine), A Dialogue on the Law of Kingship among the Scots: A Critical Edition and Translation of George Buchanan’s ‘De Iure Regni apud Scotos Dialogus’ (2004) (with Martin S. Smith) and John Knox and the British Reformations (1998). He is General Editor of the New Edinburgh History of Scotland and President of the Scottish History Society. He is currently working (with Steven Reid) on an edited volume Andrew Melville (1545‒1622): Writings, Reception and Reputation, and on the New Edinburgh History of Scotland volume 7: Union, Empire and Reform: Scotland, c.1587‒1690. JAMIE REID-BAXTER is a Research Associate in Scottish History at the University of Glasgow. His publications include Jhone Angus, Monk of Dunfermline, and Scottish Reformation Music (2011) (with Michael Lynch and E. Patricia Dennison). He is editor of Poems of Elizabeth Melville, Lady Culross (2010). He is currently editing Robert Bruce’s manuscript sermons of 1590‒1 for the Scottish History Society and preparing an online edition of the works of Thomas Murray. JOHN WATTS is Fellow and Tutor, Corpus Christi College, Oxford. His books include The Making of Polities: Europe, 1300‒1500 (2009) and Henry VI and the Politics of Kingship (1996). His most recent edited book is Power and Identity in the Middle Ages: Essays in Memory of Rees Davies (2007) (with Huw Pryce). He is currently working on a volume for the New Oxford History of England series, entitled Renaissance England, 1461‒1547.

Introduction: Kings, Lords and Jenny Wormald STEVE BOARDMAN and JULIAN GOODARE Jenny Wormald’s contribution to the transformation of Scottish historical scholarship is manifest in a number of areas, as the various studies that make up this volume confirm individually and collectively. Through a series of innovative and original monographs and articles she has launched an often brutally witty iconoclastic assault on hoary misconceptions about the medieval and early modern kingdom and left a landscape littered with the battered remains of old prejudices and muddled thinking in her wake. For festschrift editors, circling the site of battle and attempting to identify juicy titbits amongst the wreckage, the scale of Jenny’s triumph and the rapidity of her subsequent advance present their own problems in terms of supplying a bewilderingly wide choice of possible targets. Rather than flap aimlessly across a broad and still developing front, we have alighted on a few fundamental aspects of Jenny’s work that might repay more detailed consideration.1 The question that lies behind much of our discussion is that of periodisation. When was medieval Scotland? When was early modern Scotland? Why does this book begin in 1300, and why does it end in 1625? Lord Acton’s advice that historians should ‘study problems, not periods’ is as wise as ever, but any investigation of the problem of how relationships among ‘kings, lords and men’ were articulated in political culture must address the question of when the main changes occurred. As we shall see, Jenny’s unconventional approach to this question has generated fresh insights.

I A persistent feature of Jenny’s historical approach has been a cheerful disinclination to accept the idea that there were necessarily profound differences between fifteenth- and sixteenth-century Scotland. Indeed, the chronological sweep of much of Jenny’s published work implicitly brings into question the 11 Jenny’s publications are all listed in full at the end of this volume. Thus they are not necessarily cited in full in the present introduction.

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usefulness and utility of thinking in terms of the constructed historical categories of ‘medieval’ and ‘early modern’. In the Scottish context, in particular, Jenny’s studies have ranged widely in both theme and chronology, analysing social, legal and governmental structures and developments from the fifteenth to the seventeenth century. The particular breadth and coherence of her vision for the century and a half between c.1450 and c.1600, straddling what has occasionally been presented as the shift from the medieval to the early modern, rests on her identification of basic patterns in Scottish social and political life that endured, despite a variety of challenges, throughout that period. The appearance in 1980 of the Past and Present article ‘Bloodfeud, kindred and government in early modern Scotland’ and, in 1985, of the monograph Lords and Men in Scotland: Bonds of Manrent, 1442‒1603, established the wide chronological and intellectual boundaries within which Jenny would work, the two studies together laying out the argument that there were fundamental ties of kinship, lordship and service that bound together Scottish society at the local, regional and national level from the mid-fifteenth century to the eve of the union of the crowns. The strength of local and regional lords was, Jenny suggested, not necessarily a challenge to, or a check on, the status and ambitions of the Scottish monarchy, but rather provided kings and queens with largely co-operative and willing partners in the localities through whom they could govern their land effectively. Moreover, the rivalry between male lineage lordships was regulated, if never extinguished, by the conventions of feud, which, Jenny argued, were as much concerned with suppressing and containing disorder and achieving a sustainable and honourable settlement of disputes as they were in encouraging violent revenge for perceived wrongs. Against this backdrop of decentralised political power and deep continuity in aristocratic structures, social custom and expectations of governance, the various political crises of the fifteenth and sixteenth centuries, so emphasised in older interpretations inclined to view Scotland as a kingdom forever teetering on the edge of internal war and disorder, became less significant. In her 1972 paper ‘Taming the magnates?’ Jenny directly attacked this entrenched view of Scotland as a polity naturally and structurally inclined towards political violence, and laid out a radical new framework that stressed the overall stability of Scottish society and, in particular, the way in which crown and aristocracy usually worked together to manage and defend the realm successfully. Jenny, moreover, argued fiercely against the idea that the continued vitality of long established social and governmental patterns should be characterised as a type of medieval ‘backwardness’ or primitivism, a failure to adhere to a blueprint for governmental and social progress derived from more precocious medieval and early modern polities. The pre-1603 Scottish realm had been especially vulnerable to this characterisation, Jenny suggested, because the union of the crowns, and then the union of the parliaments, effec-

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tively brought consideration of the story of the pre-modern kingdom into a scholarly world where the ‘whiggish’ historiography of the neighbouring English realm, with its emphasis on the dangers of self-serving baronial violence and an interest in ‘beneficial’ constitutional and institutional development, held sway. Judged in these terms, fifteenth- and sixteenth-century Scottish government appeared underdeveloped and lamentably susceptible to malicious magnate violence – but Jenny argued that these were inappropriate and anachronistic terms in which to judge. She not only rejected the old image of the rampantly bellicose and reckless Scottish aristocrat, embroiled in petty feuds and dismissive of royal power, but also attempted to show that, despite the supposed weakness of its central institutions, pre-modern Scotland was remarkably stable and peaceful. In this sweeping re-evaluation of Scottish political society Jenny was able to build on and develop the ideas of the influential English historian K. B. McFarlane, who had long before expressed doubts about the accuracy and usefulness of the idea that late medieval polities and politics were defined, and marred, by a long struggle between ‘progressive’ monarchs and recalcitrant and disruptive noblemen. In establishing a more upbeat picture of the late medieval Scottish kingdom as a realm generally characterised by crown–magnate co-operation and relatively low levels of political violence Jenny soon found a willing and industrious ally in the shape of Sandy Grant (also a contributor to this volume). Effective local and regional lordships were no longer a lurking danger, but the means by which social order was established and maintained. ‘Lords and men’ had a culture of co-operation and mutual support, characterised by the bonds of manrent given by followers to lords, and the bonds of maintenance given by lords to followers. In this view, the projection of increased royal power into the localities was no guarantee of good order and harmony, and indeed might cause disruption and discord. Jenny emphasised the robust effectiveness of the Scottish kingdom’s political structures and cultures, especially when managed by monarchs who clearly understood and successfully discharged their own central role within them.

II In Jenny’s summaries of her ideas she usually placed Scotland in a European rather than just a British context. One of the starting points of her analysis was the ubiquity of European warfare as a motor for taxation and state formation – and, as a result, for instability, resistance and revolt. Yet, she pointed out, Scotland was rarely at war. Its only enemy was England, and, while wars with England sometimes led to Scottish defeats in battle, these defeats were costly only in lives; the Scots never developed an expensive military infrastructure, nor did they need to fear English attempts at

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conquest. A largely peaceful Scotland meant that the Scottish crown did not need to make significant demands on local aristocratic society. It was, in one of Jenny’s celebrated phrases, ‘laisser-faire monarchy’. Political stability and dynastic continuity were maintained because successive monarchs were not impelled to interfere with the workings of local aristocratic society – a society that contained its own stabilisation mechanisms in procedures for dispute settlement. This was not so much ‘New Monarchy’ (on which more below), rather it was ‘Old but Effective Monarchy’. The Scots were not backward; they were astute in avoiding the new problems that other polities brought upon themselves. Those unhappy kings who ignored or refused to recognise the implicit limitations on their power soon ran into trouble: Norman Macdougall’s detailed study of the politically disastrous reign of James III suggests that the origin of at least some of that monarch’s many problems lay in a grandiose overestimation of his ability and right as the king to interfere arbitrarily in the affairs of the kingdom’s various regions without due consideration of the established privileges, roles and interests of the lords who actually exercised social and political leadership in those localities.2 While subsequent work by others has questioned whether Jenny’s stress on the enduring stability of local and regional society has tended unduly to obscure or minimise the disruptive and traumatic effects of individual political crises within the kingdom, and the significance of the tensions that gave rise to them, there is little doubt that the overall understanding of the context and meaning of such political dispute and violence has shifted dramatically.3 It is no longer credible, and certainly not advisable in Jenny’s presence, to explain away periods of internal conflict as a reflection of the inherent inadequacy and weakness of royal government, or the natural inclination of a brutish and rebellious nobility to race to arms in order to pursue their selfish goals. Jenny’s view of the essential continuities in the nature of royal power (and much else) from the fifteenth into the sixteenth century found expression in the tripartite organisation of her textbook Court, Kirk, and Community: Scotland, 1470‒1625, published in 1981 as part of the New History of Scotland series, of which she was general editor. Here the opening and final 12 Norman Macdougall, James III (2nd edn, Edinburgh, 2009). 13 For contrasting contributions to the debate see Michael H. Brown, ‘Scotland tamed? Kings and magnates in late medieval Scotland: a review of recent work’, IR 45 (1994), 120‒46; Michael H. Brown, ‘“I have thus slain a tyrant”: The Dethe of the Kynge of Scotis and the right to resist in early fifteenth-century Scotland’, IR 47 (1996), 24‒ 44; Alexander Grant, ‘Crown and nobility in late medieval Britain’, in Roger Mason (ed.), Scotland and England, 1286‒1815 (Edinburgh, 1987), 34‒59; Roger Mason, ‘Chivalry and citizenship: aspects of national identity in Renaissance Scotland’, in Roger Mason and Norman Macdougall (eds), People and Power in Scotland: Essays in Honour of T. C. Smout (Edinburgh, 1992), 50‒73; Roger Mason, ‘Kingship, tyranny and the right to resist in fifteenth-century Scotland’, SHR 66 (1987), 125‒51.

introduction

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sections of the work were both said to deal with ‘Renaissance Scotland’, the reigns of James III, James IV and James V covered in the first segment, and those of Queen Mary and James VI in the last. Sandwiched between these discussions of ‘Renaissance Scotland’ came consideration of the Reformation, that bundle of religious, political and social phenomena that has, on occasion, been taken as causing early modernity to arrive in Scotland and as bringing an end to the medieval world. Certainly in many other national historiographies across Europe the various Protestant Reformations of the sixteenth century have been regarded as ushering in a new set of spiritual, political, social and cultural attitudes that represented a decisive break from the ‘medievalism’ of the Catholic Church. While Jenny’s schema recognised the importance of the Scottish Reformation, it also implicitly suggested that its transformative power was not as extensive or all-embracing as some interpretations asserted, and that a number of the key features that defined Scottish society before 1560 remained in place through to the end of the sixteenth century and beyond. The notion, evident here, that post-Reformation monarchs operated within a political and social landscape governed by largely the same rules as their Stewart ancestors, played its part in Jenny’s highly critical assessment of Queen Mary in her 1987 monograph Mary Queen of Scots: A Study in Failure. For Jenny, Mary’s failure lay not in an excusable or tragic incapacity to cope with new conditions brought about by the Reformation, but rather in her inability or unwillingness to follow the well-established model of effective active rule, involving regular contact with, and careful management of, the nobility and the localities, that had underpinned the success of earlier Stewart rulers. Here was no doomed heroine cursed by the fates, but a straightforwardly inept ruler. While Jenny’s estimation of Mary’s political incompetence has not proved as influential as her analysis of Scottish lordship, it fits logically into the template first outlined in ‘Taming the magnates?’, which suggested that any collapse in the authority of a particular ruler was best explained by individual rather than systematic failings or weaknesses in the institution of monarchy, or the inherent flammability of the Scottish political community. One part of her approach has surely been accepted: the need to assess Mary by straightforward political criteria as a ruler. Michael Lynch’s review article, which engaged head-on with Jenny’s negative assessment of Mary, and Julian Goodare’s article in the ODNB, which can be read as an implicit response to it, both took the political approach that she advocated so firmly.4

14 Michael Lynch, ‘Mary queen of Scots: a new case for the prosecution’, Journal of Ecclesiastical History 41 (1990), 69‒73; Julian Goodare, ‘Mary (1542‒1587), queen of Scots’, ODNB.

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III One of the key points to emerge from all this is that Jenny’s work offers a perspective that links rather than separates the fifteenth and sixteenth centuries, places fundamental changes in Scottish governmental, legal and political structures as late as the last decade of the sixteenth century or the early decades of the seventeenth century and, thereby, implicitly rejects attempts to locate the transition between medieval and early modern Scotland at any earlier juncture. The term most commonly applied by Jenny to describe the kingdom in the period 1470‒1600 is ‘Renaissance’ Scotland, a polity ruled, inevitably enough, by Renaissance monarchs. Renaissance kingship is hard to define precisely in terms of chronology and fundamental characteristics, but it clearly developed from the older scholarly idea of fifteenth-century European ‘New Monarchies’. New Monarchy was used by historians in the twentieth century to describe what seemed to be a widespread phenomenon across Western Europe in the second half of the fifteenth century, namely a strengthening and expansion of royal government that led to an increase in the level of control exercised by Western European royal houses within their own territories. These New Monarchies supposedly represented a transitional phase between medieval kingdoms and full-blown early modern states. The New Monarchies were distinguished by the growing ability, or at least ambition, of kings, princes and dukes to direct the economic, religious and cultural affairs of their subjects. These rulers were increasingly willing to reject interference in their own domains by external ecclesiastical authority and simultaneously to crush the pretensions of those of their subjects who sought to maintain autonomous regional power. Royal government grew in size and reach, and this expanding bureaucracy delivered greater resources into the hands of the ruler. The growing wealth of the crown was displayed through increasingly sumptuous and ostentatious royal pageantry and ritual, the creation of a court culture that prized, supported and flaunted the presence of writers, entertainers, artists and scholars, the construction of elaborate palaces and residences, and heavy investment in new military technologies.5 Many of the defining characteristics of New Monarchy were drawn from the development of continental kingdoms, the resurgent fifteenth-century French monarchy and the dukedom of Burgundy, in which the elaboration of a princely, courtly culture, the expansion of bureaucracy and the self-conscious promotion and articulation of the benefits of good government, acted as a reflection of, and a means of projecting, political power. The idea of late medieval New Monarchy briefly fell out of fashion, 15 Anthony Goodman, The New Monarchy: England, 1471‒1534 (Historical Association Studies, Oxford, 1988).

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particularly in English historiography, assaulted on one front by medievalists unconvinced that there was anything significantly ‘new’ in the aspirations and policies of fifteenth-century kings, and on another by historians of Tudor England, most obviously Geoffrey Elton, who argued that a radical, decisive and near complete break from medieval traditions of government was achieved by Henry VIII’s regime in the 1530s.6 However, dissatisfaction with, and extensive debate over, Elton’s notion of a ‘Tudor Revolution’ in government has allowed, in England, a re-engagement with the idea of the fifteenth and sixteenth centuries as a period marked by fundamental continuities, in which political, administrative and social change tended to be slow, evolutionary and incremental rather than dramatic and convulsive.7 Jenny’s characterisation of the late fifteenth and sixteenth centuries as an era of Renaissance monarchy is thus very much in step with the wider drift of modern historical scholarship in Scotland and the British Isles.8 The classification obviously has the useful effect of by-passing, or making irrelevant, any explicit discussion of when, how and why (and indeed whether) the medieval kingdoms became early modern states: perhaps no bad thing given the disruptive and distorting impact that the concepts of ‘medieval’ and ‘early modern’, and the rather fruitless search to define the key distinguishing characteristics of each, are sometimes said to have had on historians’ understanding.9 And, for Jenny, the phrase ‘Renaissance monarchy’ is not so much an exercise in periodisation as an expression of a real process, the linking of politics with culture. She sees the development of Scottish government as driven by the expansion of lay literacy, which in turn led to the growth of a legal profession and the beginnings of a culture of office-holding and office16 G. R. Elton, The Tudor Revolution in Government (Cambridge, 1953); Goodman, New Monarchy, 7‒8; Julian Goodare, The Government of Scotland, 1560‒1625 (Oxford, 2004), 276‒80. 17 For recent contributions to the ‘Tudor Revolution’ debate, laying more stress on steady development, see Natalie Mears, ‘Court, courtiers and culture in Tudor England’, Historical Journal 46 (2003), 703‒22; John Watts (ed.), The End of the Middle Ages? England in the Fifteenth and Sixteenth Centuries (Stroud, 1998); John Watts, ‘“A new ffundacion of is crowne”: monarchy in the age of Henry VII’, in Benjamin Thompson (ed.), The Reign of Henry VII (Stamford, 1995), 31‒53; Steven Gunn, Early Tudor Government, 1485‒1558 (London, 1995). 18 Roger Mason also deploys the concept of Renaissance Scotland as a description of the period from the reign of James III onwards. Roger Mason, ‘This realm of Scotland is an empire? Imperial ideas and iconography in early Renaissance Scotland’, in Barbara E. Crawford (ed.), Church, Chronicle and Learning in Medieval and Early Renaissance Scotland (Edinburgh, 1999), 73‒91; Roger Mason, ‘Renaissance and Reformation: the sixteenth century’, in Jenny Wormald (ed.), Scotland: A History (Oxford, 2005), 107‒42. 19 See the various articles in Journal of Medieval and Early Modern Studies 37, no. 3 (October 2007); Timothy Reuter, ‘Medieval: another tyrannous construct?’, Medieval History Journal 1 (1998), 25‒45.

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seeking. Nor was this just a sixteenth-century phenomenon, for the trend was already visible in the fifteenth century. The notion of Scottish Renaissance monarchy has not entirely swept alternative chronologies from the field, and there remain some difficulties in defining exactly when, for example, Renaissance Scotland can be said to begin and end. The problematic areas remain, largely, those pointed out by critics of the New Monarchy thesis. There is still uncertainty about the point at which truly ‘medieval’ kingship can be said to give way to Renaissance monarchy and what that change actually entailed or signified. While Jenny and historians such as Roger Mason are content to locate the beginnings of Renaissance Scotland loosely in the reigns of James III and James IV, it is also possible to suggest that the reign of James I (1406‒37) marked the advent of a ‘new kind of princely culture in Scotland’.10 Conversely, historians mindful of Eltonian arguments about ‘modernity’ being defined by changes to the organisation and ideology of royal government and bureaucracy are inclined to regard the late fifteenth- and early sixteenth-century Stewart monarchy as remaining fundamentally medieval in outlook. For Julian Goodare, the ‘Stewart revolution in government’ (heavily qualified) occurred in the late sixteenth century rather than the late fifteenth, and James IV and James V remain thoroughly medieval kings.11 Goodare’s analysis is, however, as much European as British, with his ‘absolutist state’ forming a Continental-style ancien régime that to some extent looks back from (or forward to) the Scottish Revolution of 1638.12 Whether this is enough to meet Jenny’s repeated demand for historians to stop assessing Scotland by English criteria may be pondered. A recent study has, meanwhile, suggested yet another possible line of demarcation in earlysixteenth-century Scotland with the emergence of a new form of socially coercive secular and ecclesiastical government, informed by the concerns and ideologies of Catholic counter-reformation on the Continent.13

10 Alasdair A. MacDonald, ‘Princely culture in Scotland under James III and James IV’, in Martin Gosman, Alasdair A. MacDonald and Arjo Vanderjagt (eds), Princes and Princely Culture, 1450‒1650, vol. i (Leiden, 2003), 147‒72, at p. 147. 11 Goodare, Government of Scotland, ch. 12. See also Michael Lynch, Scotland: A New History (2nd edn, London, 1992), ch. 10, where James III, James IV and (especially) James V are characterised as late medieval kings employing ‘Old Solutions’ to meet ‘New Problems’. 12 Julian Goodare, State and Society in Early Modern Scotland (Oxford, 1999), ch. 3 and passim. 13 Mairi Cowan, ‘In the borderlands of periodization with “the blythnes that hes bein”: the medieval/early modern boundary in Scottish history’, Journal of the Canadian Historical Association 23 (2012), 142‒75.

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IV One of Jenny’s earliest essays in reinterpretation, in 1973, concerned James VI and I.14 Here she built on her ideas about laisser-faire kingship to argue that James was not a pioneer of new-style state formation but the last and perhaps greatest practitioner of traditional monarchy in Scotland. This was partly directed against the Eltonian arguments of Maurice Lee, and a stimulating if inconclusive debate with Lee ensued.15 This debate has long since been overtaken by other works, including those of the participants themselves, but it raised the question of how the reign of James VI fitted into Jenny’s broader periodisation of Scottish history with its continuities since the fifteenth century. The answer to that question would soon emerge. As noted above, Jenny’s Court, Kirk and Community was part of a project of which she was general editor, a multi-volume history of Scotland from earliest times to the present day. When she returned to the long sweep of Scottish history two decades later, as editor of a one-volume history of Scotland, followers of her work on the fifteenth and sixteenth centuries might have asked which of these centuries she would choose to write about in her own chapter. In fact, she chose the seventeenth century.16 From this chapter, just one point can be picked out for the present analysis: the argument that Charles I was just as much a ‘disaster’ as Mary had been, though he was condemned for authoritarian inflexibility rather than passivity. Charles’ accession, then, formed a watershed that would be followed by further disasters. Jenny’s periodisation had in fact been indicated in Court, Kirk and Community itself. She chose to end her book in 1625, with James’ death, rather than in 1603, with the union of crowns – leading to an overlap with the next volume when its author, Rosalind Mitchison, insisted on a more conventional periodisation.17 The fact that Jenny has written a great deal about the 1603 union may obscure the fact that, for her, it was not a grand turning point, at least for Scotland. And, although the present book cannot cover all the themes of Jenny’s work, it may be noted that 1625 is the terminal date in its title, too. 14 Jennifer M. Brown, ‘Scottish politics, 1567‒1625’, in Alan G. R. Smith (ed.), The Reign of James VI and I (London, 1973), 22‒39. 15 Maurice Lee, Jr, ‘James VI and the aristocracy’, Scotia 1 (1977), 18‒23; Jenny Wormald, ‘James VI: new men for old?’, Scotia 2 (1978), 70‒6. Cf. Maurice Lee, Jr, John Maitland of Thirlestane and the Foundation of the Stewart Despotism in Scotland (Princeton, NJ, 1959). 16 Jenny Wormald, ‘Confidence and perplexity: the seventeenth century’, in Wormald (ed.), Scotland: A History (Oxford, 2005), 143‒76. 17 Rosalind Mitchison, Lordship to Patronage: Scotland, 1603‒1745 (London, 1983).

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One of Jenny’s reasons for downplaying the Scottish significance of 1603 has perhaps been superseded by more recent work. She tended to see ‘absentee monarchy’ as being similar to a royal minority: that is, the absence of an active adult ruler was something that Scottish nobles were used to coping with; it is, indeed, one of the strengths of Jenny’s interpretation of the fifteenth and sixteenth centuries that it can show how the Scottish polity functioned during royal minorities. But the entire concept of ‘absentee monarchy’ has fallen from favour with the deepening understanding that royal policy was active and interventionist in Scotland in the early seventeenth century.18 The Scottish significance of 1603 can now be downplayed for a simpler reason: James VI remained king of Scotland, and he and his government continued to pursue their policies throughout his reign. As for the English, the union of crowns brought them a new dynasty – a more significant discontinuity than in Scotland. Having secured completion of the New History of Scotland series, Jenny went on to undertake the first of a series of daring raids on English territory. Her 1983 article ‘James VI and I: two kings or one?’, disarmingly simple in its title, began with an exposition of her interpretation of the traditional Scottish kingdom as a ‘less developed monarchy’ which ‘did less governing’.19 This exposition formed the starting point for a new argument about the kingship of James I of England. Jenny’s message to English historians was that James’ experience as king of Scotland gave him advantages as king of England – and that, on the occasions where James failed, this was to be attributed neither to his temperament nor to his Scottish experience, but to the unwieldy political culture of England itself. The existence of these alternative views on the definition of distinctive phases and turning points in the historical development of kingship, lordship and political society in Scotland and the British Isles does not, of course, affect the basic point, borne out by the various contributions to this volume, that Jenny’s broad outlook has served to challenge historians of the fifteenth, sixteenth and seventeenth centuries to think rewardingly beyond traditional boundaries. With that thought, we now turn to discuss the contents of the volume itself.

18 In revising passages from his earlier works for republication in 2011, Allan Macinnes deleted the phrase ‘absentee monarchy’: compare Allan I. Macinnes, Charles I and the Making of the Covenanting Movement, 1625‒1641 (Edinburgh, 1991), 173, with Allan I. Macinnes, The British Confederate: Archibald Campbell, Marquess of Argyll, c.1607‒ 1661 (Edinburgh, 2011), 109. For criticism of the concept of ‘absentee monarchy’ see Goodare, Government of Scotland, 109‒10. 19 Jenny Wormald, ‘James VI and I: two kings or one?’, History 68 (1983), 187‒209, at p. 193.

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V A number of the chapters below respond directly to Jenny’s ideas, either by applying and developing them in new contexts, or by taking issue with and qualifying her interpretations and conclusions: others offer insight into parallel issues and concerns in the English realm, fittingly given Jenny’s long and fruitful engagement with English historiography and her lengthy career as a teacher and researcher in Oxford. One chapter in particular needs to be mentioned at once: Keith Brown’s survey of her career, intellectual development and influence, which complements the present introduction.20 The remainder of the book is divided into two sections, each dealing with a set of historical relationships whose shape and operation Jenny has done so much to illuminate, those between ‘Lords and Men’ and ‘Kings and Lords’. Discussion of the significance of bonds and bonding and their intertwining with the ‘formal’ and ‘public’ processes of royal justice, so central to Jenny’s understanding of the way in which society worked, features heavily in both sections. Within each section the arrangement of chapters is roughly chronological, but in what follows they are introduced thematically. Beginning, then, with the ‘Lords and Men’ section: Anna Groundwater contributes a study of the importance of structures of private lordship in the exercise of royal justice in the Scottish borders in the reign of James VI, when many aspects of feuding kin-based society were under sustained legislative attack.21 She emphasises the resilience of the mutual ties binding lords and men and their continued usefulness to the crown, even as formal bonding and the legitimacy of ‘private’ violence were condemned by the king. Mark Godfrey, meanwhile, offers a penetrating critique of the interplay between ‘private’ and ‘public’ justice in sixteenth-century Scotland.22 He suggests that the conventions and procedures surrounding the arbitration and settlement of feud and violent conflict were entirely consistent with the wider principles of Scots law, and that therefore Jenny’s stress on the overriding importance of lordship, kinship and customs and expectations organically and independently generated within ‘feuding society’ in determining forms of dispute resolution may need to be revised. Another aspect of the link between private lordship and the formal legal structures of the realm is explored by Hector MacQueen in his meticulous 20 Keith M. Brown, ‘The Stewart Realm: Changing the Landscape’, Chapter 1 below in this volume. 21 Anna Groundwater, ‘“We Bund and Obleiss us Never More to Querrell”: Bonds, Private Obligations and Public Justice in the Reign of James VI’, Chapter 8 below in this volume. 22 A. Mark Godfrey, ‘Rethinking the Justice of the Feud in Sixteenth-Century Scotland’, Chapter 6 below in this volume.

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review of the men who acted as justiciars north and south of the Forth for the crown in the late medieval period.23 Every single justiciar is tracked, and some broad patterns emerge. The chapter raises intriguing questions about the development of the most important judicial offices in the kingdom and what seems to have been a slow shift in the social origins and standing of the men who occupied them. MacQueen’s analysis broadly supports Jenny’s view that the aristocracy were heavily, and beneficially, involved in the formal and informal government of the late medieval realm and did not represent an obstacle to good rule. One part of the aristocratic elite whose ambitions, role and influence receive relatively little attention in Jenny’s published work are the wives, mothers and daughters of Scotland’s noble and lairdly houses. Steve Boardman’s in-depth study of the colourful and influential career of Margaret Stewart, countess of Angus and Mar, asks whether the understandable focus on the male descent lineage and its critical role in a feuding society has tended to obscure the importance of the social ties and connections enjoyed by, and established through, female aristocrats, and to downplay their capacity for active involvement in disputes over land and title.24 Returning to discussion of the tradition of securing agreement and mutual adherence through the drawing up of written bonds, Jane Dawson offers a wide-ranging exploration of the significance of religious bonding in Scottish society, and the practical and symbolic use of such bonds in expressing and securing religious solidarity and confessional unity in early modern Scotland.25 Dawson makes the point that this influence did not necessarily run one way, and that sacramental practice and wider ideas about Christian community may have had a profound impact on the development and emblematic power of bonding in ‘non-religious’ contexts, if such could be said to exist. This chapter is also a key site for considering changes brought about by the Reformation and continuities from an earlier period. Christine Carpenter’s rich, sophisticated and multi-layered analysis of fourteenth-century bastard feudalism in England, and specifically the ways in which it might differ from fifteenth-century bastard feudalism, is a weighty contribution to a long-running and vital debate in English historiography.26 In the context of this volume, Carpenter’s work provides a stimulating comparative perspective on the themes of lordship, service and their 23 Hector MacQueen, ‘Tame Magnates? The Justiciars of Later Medieval Scotland’, Chapter 4 below in this volume. 24 Steve Boardman, ‘Lords and Women, Women as Lords: The Career of Margaret Stewart, Countess of Angus and Mar, c.1354–c.1418’, Chapter 2 below in this volume. 25 Jane E. A. Dawson, ‘Bonding, Religious Allegiance and Covenanting’, Chapter 7 below in this volume. 26 Christine Carpenter, ‘Bastard Feudalism in England in the Fourteenth Century’, Chapter 3 below in this volume.

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relationship to wider governmental structures that have so occupied Jenny. Jenny’s own long-standing willingness to seek inspiration and enlightenment through engagement with English scholarship is evident in her enthusiastic review of Carpenter’s highly influential 1992 monograph, Locality and Polity: A Study of Warwickshire Landed Society, 1401‒1499.27 In the context of the present collection, Carpenter’s chapter may also be mentioned as an important one that justifies the opening date of 1300 in the title of the collection, though the chapters of Boardman and MacQueen, and of Sandy Grant (to be discussed in a moment), are also relevant. The final chapter to mention from this first part of the book is that of John Watts. He provides a second offering from south of the border in an elegant, eloquent and, latterly, thoroughly mischievous, piece on the poet John Skelton, outlining his potential importance in both articulating and embodying the jostling intellectual, literary and political cross-currents that converged in the courtly culture of Renaissance England.28 In its literary focus, this chapter responds to a frequent theme of Jenny’s work: her sensitivity to literature as a barometer of cultural and political change.

VI The second part of the book, ‘Kings and Lords’, continues some of these themes and develops several others in more detail. Kingship is the linking element, but specific themes include justice, diplomacy, political episodes, political theory, court culture and literature, and religion. In a chapter ranging over more than a millennium but focused on the later medieval period, Sandy Grant investigates the role of the king in the provision of justice.29 He sets later medieval Scotland in the context, not just of England, but also of Germany and France, and even of modern Saudi Arabia. Having reviewed the processes of dispute settlement and compensation for killing in the justice of the feud, Grant turns the spotlight on the one type of killing where these processes could not operate: the secret killing. It was secrecy that distinguished ‘murder’ from other forms of homicide, and required the aggrieved kin-group, not knowing the killer, to seek justice from the king. A brief summary can hardly do justice to the intricacies of the argument here, but it may be hoped that this chapter will be seen to make a substantial contribution to a characteristically Wormaldian topic. The provision of justice is also significant in the one chapter in the book 27 Renaissance Quarterly 47 (1994), 955‒9. 28 John Watts, ‘King, Lords and Men in Renaissance England: The Poetry of John Skelton’, Chapter 5 below in this volume. 29 Alexander Grant, ‘Murder Will Out: Kingship, Kinship and Killing in Medieval Scotland’, Chapter 9 below in this volume.

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that takes a specific king as its subject. James III has often been seen as an exception to the view of Stewart kingship as successfully consensual. Alasdair MacDonald aims to rehabilitate James, or at least to contribute towards the attainment of a more rounded picture of that much-maligned monarch.30 He argues that some of the traditional canards are inapplicable: James should certainly not be regarded as noteworthy for selling justice, and his amassing of treasure was not ipso facto a fault in a king. In more detail, MacDonald probes the question of what James was up to in the construction of Restalrig Chapel. He notes that it was a grand and unusual monument. In stylistic terms it was definitely late medieval rather than Renaissance. In religious terms it was linked to Passion devotion. In local terms it was linked to Edinburgh’s local saint, Triduana, who was then becoming fashionable. In European terms it was linked to Bruges and to the ‘Burgundian moment’ of late medieval Scottish court culture – and also to Trier in Germany, where the chapel of St Quirinus provides a likely model. The striking conclusion is that ‘As far as culture is concerned, the idea of a new start under James IV seems to be a myth’. Scotland’s ‘Burgundian moment’ had passed before the end of the fifteenth century, whereupon the diplomatic interests of Scottish monarchs resumed their focus on England and France. Felicity Heal’s chapter provides a detailed reconstruction of sixteenth-century Anglo-Scottish diplomacy from an original angle: that of the diplomats’ own experience as recipients of royal generosity.31 One way of calibrating the perceived importance of diplomatic missions was through the value of the gifts presented to them by the monarch with whom they negotiated. Monarchs themselves also exchanged gifts. Scotland seems usually to have exchanged more valuable gifts with England than with Continental countries, though France was particularly important to James V. Along the way we also learn of the importance of chivalry – with James V in particular seeking membership of the great chivalric orders – and of environment – with Scotland being in a strong position as the habitat of hunting hawks that made most acceptable gifts for kings. Bonds of manrent were about ‘lords and men’, but, along with them, Jenny has also analysed ‘political bonds’, in which lords made alliances for purposes of high politics. Two of Jenny’s ‘political bonds’ come under close scrutiny here: the Lanark bond of 16 January 1453, and the Ainslie bond of 19 April 1567. Traditionally, the Lanark bond has been seen as an unimportant interlude in the story of the conflict between James II and the earls of Douglas, the important episodes being the king’s killing of the eighth earl in 1452 and the 30 Alasdair A. MacDonald, ‘James III: Kingship and Contested Reputation’, Chapter 11 below in this volume. 31 Felicity Heal, ‘Royal Gifts and Gift-Exchange in Sixteenth-Century Anglo-Scottish Politics’, Chapter 13 below in this volume.

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exile of the ninth earl in 1455. As for the Ainslie bond, this has been mentioned in all accounts of the downfall of Mary Queen of Scots, but hitherto it has never been thought to offer any insight into how this event occurred. The Lanark bond, Michael Brown shows, was a serious attempt at a settlement of the dispute between the king and the earl.32 Both sides would forgive and forget the past. This would be difficult when the king had just killed the earl’s brother – but feuds were supposed to be settled eventually, and by compromise. It was unusual for bonds to be made to the king – he was supposed to be above that sort of thing – and, perhaps as a result, the Lanark bond does not follow the precise pattern of bonds of manrent and maintenance that Jenny established. But it certainly operated within that framework. Disputed rights to the earldom of Wigtown and the lordship of Stewarton were important to the conflict between the king and the earl. Brown shows both sides exploiting the rights that they claimed by making grants within these lands to others, and explains why the lands featured prominently in the bond. With the bond, James conceded Douglas’ right to the lands, thus in effect granting compensation for having killed his brother. This was very much how feuds were supposed to end. Brown argues that the king and Douglas went on to co-operate constructively in 1453 and 1454, and that the bond was therefore effective. Only in early 1455 did a fresh dispute arise between the king and the earl – and, on this occasion, the earl’s political position was too weak to enable him to withstand royal pressure. Ironically, this was partly because of the success of the Lanark bond, which had settled the previous dispute and removed the earl’s ability to present himself as aggrieved concerning the killing of his brother. In the Ainslie bond of 19 April 1567, most politically active nobles agreed to support the earl of Bothwell’s proposal to marry Queen Mary. This has always been thought unimportant because many of these nobles later launched an uprising against Bothwell once he abducted the queen and forced her to marry him; these nobles’ signatures to the bond have been assumed to be insincere. However, such insincerity has never been explained or proved. Now, drawing on Jenny’s demonstration that bonds were public, honourable and intended to be effective, Julian Goodare shows that the Ainslie bond can be interpreted in such a way.33 Compared with the Lanark bond, the Ainslie bond was a more conventional ‘political bond’ in Jenny’s terms, in which political equals committed themselves to common, public action. Recent factional disputes had threatened the stability of the realm; the leaders of the various factions were seeking a settlement. If Mary had agreed to marry Bothwell, thus removing the need for the abduction, the other nobles might well have kept their part of the bargain. 32 Michael Brown, ‘The Lanark Bond’, Chapter 10 below in this volume. 33 Julian Goodare, ‘The Ainslie Bond’, Chapter 14 below in this volume.

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‘Kings and lords’ needed ideologies as well as political mechanisms. Here we turn to the chapter by Roger Mason, one of the few scholars who, like Jenny, is at home in both the fifteenth and sixteenth centuries. Here he offers a broad survey of the political culture of late medieval and early modern Scotland, tracing intersections between political theory and political practice.34 He proposes that there were at least three such traditions of ‘constitutionalist discourse’ – not one of which derived from the 1320 Declaration of Arbroath, which, he shows, remained largely unknown from the time when it was written until 1680. Having disposed of this red herring, Mason moves, more constructively, to emphasise ‘baronial conciliarism’. Nobles not only counselled the king, but also sought counsel from their own followers. ‘Counsel’ here did not require formal institutions, rather a shared understanding of political practice. This of course is classic Jenny territory, though approached from the perspective of ideology rather than bonds. Much changed with the adult rule of James VI, and his development of the theory of the divine right of kings; this is beyond Mason’s purview here, though he has discussed it elsewhere.35 Mason sees Scottish thinkers articulating occasional expressions of ‘constitutionalist’ opposition to James I, James II and James III, but not, despite their often predatory actions, to James IV or James V. John Mair, who wrote during the reigns of the latter kings, expressed constitutionalist ideas in conciliarist terms but did not criticise specific monarchs. George Buchanan justified the deposition of Mary in constitutionalist terms, but Mason points out that the actual deposition was much more conservative, with politicians relying on the fiction of voluntary abdication. The significance of the fraught relationship between George Buchanan and his royal pupil James VI has long been recognised. Buchanan, a renowned neo-Latin poet and ideologue, was also cantankerous and stern as a tutor; he gave James nightmares in later life. But few scholars have asked whom James appointed as tutors of his own children. Jamie Reid-Baxter’s chapter on Thomas Murray, tutor of the future Charles I, shows that Murray also was a neo-Latin poet and ideologue.36 Although Murray never achieved Buchanan’s renown, his contemporaries regarded him much more warmly as a person. Reid-Baxter reconstructs Murray’s poetic oeuvre, much of it written in the late 1580s, and shows that it relates closely to James VI and his self-presentation 34 Roger A. Mason, ‘Beyond the Declaration of Arbroath: Kingship, Counsel and Consent in Late Medieval and Early Modern Scotland’, Chapter 12 below in this volume. 35 Roger Mason, ‘James VI, George Buchanan and The True Lawe of Free Monarchies’, in his Kingship and the Commonweal: Political Thought in Renaissance and Reformation Scotland (East Linton, 1998), 215‒41. 36. Jamie Reid-Baxter, ‘“Scotland will be the Ending of all Empires”: Mr Thomas Murray and King James VI and I’, Chapter 15 below in this volume.

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at that time as a martial monarch – quite a contrast with the Rex pacificus that James later became.

VII Overall, the chapters in this book show us a ‘Stewart realm’ that is organised around the king but not dependent on him. In diplomatic terms, relations with England and France predominate (the two explicitly English chapters in the book provide important points of comparison while also reminding us of Scottish differences). Meanwhile, the Stewart kings and their Scottish subjects are also in close touch with the papacy and with Continental developments in culture and chivalry. The king does not tax regularly or heavily, but he is involved in allocating landed resources. He is the fount of justice, exercising both Justice and Mercy – the capital letters are significant – and seeking to reconcile the two imperatives. There are frequent conflicts, but people seek means whereby conflicts may be reconciled. These means may include informal processes of dispute settlement and the reallocation of resources, but might also rely on more formal judicial processes – both processes being managed by lords themselves as well as the king. If this is the ‘Stewart realm’ that Jenny Wormald has shown us, then these chapters demonstrate that her vision has been, and remains, an inspirational one.

chapter 1

The Stewart Realm: Changing the Landscape KEITH M. BROWN Jenny Wormald has significantly enhanced our understanding of early modern Scotland in three distinct areas. The first concerns the tone and colour of Renaissance Scotland, which Jenny painted in rich and vibrant colours, altering forever how we see that period. Secondly she reconfigured how we think and write about the nobility, their exercise of power, their relations with the Stewart monarchy, their feuds and culture. Thirdly, she forced historians of England to recognise that James VI and I was a Scot and that he cannot fully be understood unless that fact, alongside his experience of ruling Scotland, is taken into account. The intellectual impact of all three lines of argument, unleashed in a string of books, essays and articles, especially in the 1980s, was transformative and agenda-setting. So what has Jenny Wormald’s revision of early modern Scotland done for our understanding of it?

I Academic life in the 1960s and 1970s was very different from how it is in the second decade of the twenty-first century. Whether it was better or worse is open to debate, and those who aggrandise the era as a golden age of small group teaching, unregulated research and apparent collegiality should reflect on the social privilege of the student body, the low status attached to research, and the blatant prejudice and lack of transparency that characterised university life. In particular, it was extremely difficult for a woman to make inroads into what was a very male club. Thus, while Jenny began teaching as a lecturer at the University of Glasgow in 1966, her first publication did not appear until 1972, two years before completing her PhD on bonds of manrent in late medieval and early modern Scotland. Like an unstoppable charge by mailed knights crashing into the undisciplined ranks of foot levies, that first publication, ‘Taming the magnates?’, drove a wedge deep into the prevailing view of Scotland’s unruly, backward nobility.1 The 1970s saw two other important 11 Jennifer M. Brown, ‘Taming the magnates?’, in Gordon Menzies (ed.), The Scottish Nation: A History of the Scots from Independence to Union (London, 1972), 46‒59.

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publications that laid out the Wormald agenda. An essay on Scottish politics in the reign of James VI announced that Jenny was a late medievalist who had something to say about early modern Scotland, a bold move that few Scottish medievalists have followed.2 Jenny had laid down a marker that signalled an interest in James VI, a monarch she would later wholly reinterpret, especially for a wider British audience. Meanwhile, in 1977, Jenny edited a collection of essays on fifteenth-century Scottish society, offering a radical revision of a period best known until then for bloody and turbulent politics, weak and backward government, and an absence of high culture. Jenny’s own contribution to the collection, an essay that trailed the findings of her thesis, added a profound scholarly critique of power relations in late medieval elite society to the earlier interrogation of magnate politics in the ‘taming’ essay.3 Three publications in that timescale would not qualify for submission to the presentday Research Excellence Framework, but those three publications not only intimated a radical departure from long-established orthodoxies; they are also still worth reading today. Taking time to think, to probe, to read around the topic, to argue and debate, to engage students in that debate and to hold back publications until there was something to say paid dividends for Jenny. The following decade saw a remarkable flow of research released into the historical community in three distinctive books and a string of provocative and compelling articles. Her output during this time continued to be dominated by her interest in the political culture of the nobility. In 1980, the Past and Present article, ‘Bloodfeud, kindred and government in early modern Scotland’, appeared in print, a publication that is genuinely world-leading and established Jenny’s reputation as a European historian who happened to specialise in Scottish History.4 This article is unquestionably the most innovative, brilliant and farreaching essay written on late medieval and early modern Scottish History in the last half century. There is nothing else that comes close in terms of its intellectual breadth and the tangible fizz of ideas. Citations as a proxy measure of excellence are not greatly liked by historians, but in this case it is the breadth of citations from outside Scottish History that is truly impressive. The article is cited in works on European history, Latin American history, ancient history, criminology, anthropology, law, sociology and Biblical studies.5 In the following year, Court, Kirk and Community was published, 12 Jennifer M. Brown, ‘Scottish politics, 1567‒1625’, in Alan G. R. Smith (ed.), The Reign of James VI and I (London, 1973), 22‒39. 13 Jennifer M. Brown, ‘The exercise of power’, in Jennifer M. Brown (ed.), Scottish Society in the Fifteenth Century (London, 1977), 33‒65. 14 Jenny Wormald, ‘Bloodfeud, kindred and government in early modern Scotland’, Past and Present 87 (May 1980), 54‒97. 15 These include: Martin Daly and Margo Wilson, Homicide (New York, 1988); V. G. Kiernan, The Duel in European History: Honour and the Reign of Aristocracy (Oxford,

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extending the themes of the fifteenth-century collection by offering an upbeat analysis of Renaissance Scotland, while widening the reach of the Wormald view of early modern Scotland to a broader student audience.6 In 1983, Jenny published ‘James VI and I: two kings or one?’, a stunning broadside at generations of English historians who had failed to take notice of the glaringly obvious fact that this man was an experienced Scottish king before he inherited the English throne in 1603.7 Previously, James VI’s Scottishness had only ever been taken into account to explain his allegedly uncouth behaviours, derived entirely from Sir Anthony Weldon’s unreliable sketch of his character. Instead, Jenny drew attention to James VI’s kingcraft and to his political ideas in order to help explain his record as king of England and as ruler of the complex amalgam that was Great Britain and Ireland. To round off the remarkable period in Jenny’s publication history, in 1985 she unleashed the stunningly authoritative Lords and Men, which reinforced the arguments trailed in previous articles with solid empirical evidence.8 Yet again, Jenny reached out to a scholarly audience beyond the Scottish History community. For a reviewer like F. R. H. Du Boulay, an expert on late medieval German History, there was nothing backward or eccentric about the Scottish evidence that Jenny inserted directly into the European mainstream.9 These four publications in the space of five years, alongside a supporting hand, represent an extraordinary achievement that collectively caused a paradigm shift in Scottish History and created waves outside the field. Here it might be worth reminding ourselves of what preceded Jenny’s intervention into the world of the late medieval and early modern Scottish nobility and their feuds, which is where she made her most intellectually powerful intervention. In broad terms this might be described as a twodimensional picture of unruly and over-mighty magnates who had to be house-trained by the combined forces of good: the Stewart monarchy, its civil servants, the legal profession and, in due course, the ministers of the new Protestant Church of Scotland. This alliance of central government,

16 17 18 19

1988); Muriel Nazzari, Disappearance of the Dowry: Women, Families, and Social Change in São Paolo, Brazil, 1600‒1900 (Stanford, CA, 1991); Thomas Kuehn, Law, Family and Women: Toward a Legal Anthropology of Renaissance Italy (Chicago, IL, 1991); John Braithwaite, Restorative Justice and Responsive Regulation (Oxford, 2002); William I. Miller, Humiliation (Ithaca, NY, 1993); Jesse Byock, Viking Age Iceland (London, 2001); Pamela Barmash, Homicide in the Biblical World (Cambridge, 2005); Mark Cooney, Is Killing Wrong? (Charlottesville, VA, 2009); Benjamin Kelly, Petitions, Litigation, and Social Control in Roman Egypt (Oxford, 2011). Jenny Wormald, Court, Kirk and Community: Scotland, 1470‒1625 (London, 1981). Jenny Wormald, ‘James VI and I: two kings or one?’, History 68 (1983), 187‒209. Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985). F. R. H. Du Boulay, review in International History Review 9 (1987), 162‒5.

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bureaucracy and godliness allegedly reflected the interests of a rising middle class of lairds, merchants and lawyers for whom a stronger monarchy offered law and order, prosperity and employment. Within the relatively small world of Scottish History of the 1960s and 1970s, the balance of opinion was critical of the nobility as a reactionary force delaying Scotland’s development. The New Edinburgh History authors, Ranald Nicholson and Gordon Donaldson, reflected this understanding of the nobility as a political elite on the wrong side of history.10 This view was inherited from Victorian Britain, having its intellectual roots in the eighteenth-century Enlightenment, and being transmitted to the post-World War II Britain of the Welfare State with its enthusiasm for bureaucratic centralisation and the slaying of privileged dragons. Another strand of thinking that contributed to the view of a declining nobility had its roots in Marxism and the methodology of the French Annales school, leading to a view that nobilities throughout early modern Europe were in various stages of crisis, if for no other reason than that the theoretical paradigm required that they be in decline. In confronting this world view, Jenny was one of a group of historians of late medieval Scotland who from the 1970s were redefining the period by reinterrogating the primary sources, creating a new interpretation of a powerful and confident Stewart monarchy.11 But Jenny’s intellectual curiosity was broader than that of her peers, encompassing a potent mixture of late medieval English historiography, continental medievalists, and ideas drawn from sociology, anthropology and law that came together most potently in the ‘Bloodfeud’ article and Lords and Men.

II It might reasonably be argued that this body of work pulled sixteenth-century Scotland back into the parameters of late medieval society, demonstrating that the decisive shift in political relationships among the landed elites that took place in the middle decades of the fifteenth century endured through to the beginning of the seventeenth century. Here, if you like, is a denial, or postponement, of early modernity, which contrasts with many other arguments that Jenny makes in relation to literacy, religion or law. In what is essentially a structuralist analysis we are confronted with an elite society that does not significantly change over the course of the sixteenth century, in spite of the impact of those other big early modern themes of Reformation, literacy, state formation and rising middle orders. Instead, change was postponed until the 1600s. The essential medievalism of Jenny’s view of lords and their men is one 10 Ranald Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974); Gordon Donaldson, Scotland: James V – James VII (Edinburgh, 1965). 11 Most notably Norman Macdougall, James III: A Political Study (Edinburgh, 1982) and Alexander Grant, Independence and Nationhood: Scotland, 1306‒1469 (London, 1984).

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that has not generated consensus, not least because of the tension within her own work with respect to other forms of change. Some scholars pushed back in defence of the ‘modernisation’ thesis, chiefly Maurice Lee, who was following an Eltonian agenda from the 1950s, and finding his own Thomas Cromwell in the person of John Maitland of Thirlestane.12 Julian Goodare has been a recent advocate of a more subtle version of the argument that there was a significant shift in the powers and capacity of the Scottish state in the latter decades of the sixteenth century, and that the principal losers in that development were those nobles who failed to get on board the state project.13 At the other end of the spectrum, as one of Jenny’s former research students, I pushed the boundaries more than most in arguing that not only did the underlying medieval structures and ideals of landed society remain unchanged throughout the sixteenth century, but that through deft adaptation to new conditions they extended well into the seventeenth century.14 However, no one has challenged Jenny’s underpinning analysis of that social structure. No significant evidence has appeared to suggest that, in terms of managing social relations and exercising political power, lords and men who time-travelled from the late fifteenth century would have felt out of place in the 1600s. As a result of Jenny’s revisionism, the nobility of the later sixteenth century are no longer presented as the bad guys in the narrative – there are no more overmighty magnates, robber barons, noble thugs, perennial aristocratic plotters and rebels. Nobles, she argued, were not merely self-interested individuals, ‘thinking only of feuding and fighting’.15 Instead, we have sophisticated political elites working, on the whole, in partnership with government. Jenny laid into a Whig historiography that from the later seventeenth and eighteenth centuries had been critical of lordship and nobles generally, claiming instead that crown and nobility worked in constructive partnerships. Thus while the nobility ‘came up against individual kings who could act with great ruthlessness against individual magnates … they were never faced with a crown which set itself in opposition to them’.16 This point was true for sixteenth-century monarchs as much as their fifteenth-century ancestors. 12 Maurice Lee, John Maitland of Thirlestane and the Foundation of the Stewart Despotism in Scotland (Princeton, NJ, 1959). Maurice Lee, ‘James VI and the aristocracy’, Scotia 1 (1977), 18‒23; Jenny Wormald, ‘James VI: new men for old?’, Scotia 2 (1978), 70‒6. 13 See Julian Goodare, ‘The nobility and the absolutist state in Scotland, 1584‒1638’, History 78 (1993), 161‒82. This view has since been progressively refined: see Julian Goodare, State and Society in Early Modern Scotland (Oxford, 1999); Julian Goodare, The Government of Scotland, 1560‒1625 (Oxford, 2004). 14 Keith M. Brown, Noble Society in Scotland: Wealth, Family and Culture, from Reformation to Revolution (Edinburgh, 2000); Keith M. Brown, Noble Power in Scotland from the Reformation to the Revolution (Edinburgh, 2011). 15 Wormald, Lords and Men, 160. 16 Wormald, Lords and Men, 1‒13, for the historiography; quotation at p. 159.

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This underlying analysis explains Jenny’s antipathy to Mary, most in evidence in her 1988 book, Mary Queen of Scots: A Study in Failure, in which she tells the story of a monarch who threw away the advantages of a political system in which the default position of powerful nobles was co-operation with the crown.17 The book was written at the height of Margaret Thatcher’s premiership; Jenny was disdainful of a weak female ruler who was the architect of her own downfall. Even Maurice Lee, when reviewing Lords and Men, was persuaded that ‘the traditional picture of the Scottish aristocracy as a lawless gang of bloodthirsty feudists needs revision’. He did suggest, however, that Jenny was guilty of wearing rose-tinted spectacles when reading some of her noble subjects.18 No historian today is seriously advocating either that the nobility opposed a shared concept of good government, or that as a political and economic elite the nobility was in serious decline. In opening up the archives of the nobility, Jenny hinted at a rich research agenda that others might follow. Michael Brown and Steve Boardman have led the late medieval investigation with longitudinal studies of the Douglases and the Campbells, deploying a methodology that owes much to Norman Macdougall’s sceptical empiricism, while absorbing Jenny’s theoretical perspectives.19 Works on individuals, lineages and regions of the later sixteenth and early seventeenth centuries by Jane Dawson, Maureen Meikle, Alison Cathcart, Anna Groundwater, Barry Robertson and Allan Macinnes, alongside the more broadly conceived outputs by Keith Brown, have built up a richly layered understanding of the nobility that remains broadly consistent with that mapped out by Jenny.20 Of course, there are aspects of Jenny’s interpretation 17 Jenny Wormald, Mary Queen of Scots: A Study in Failure (London, 1988). Reviewers noted that Wormald’s reinterpretation of noble politics led her to start from an expectation that Mary ought to have succeeded: see reviews by William K. Emond in Albion 20 (1988), 687‒8; Maurice Lee in Catholic Historical Review 74 (1988), 618; Arthur H. Williamson in Renaissance Quarterly 42 (1989), 320‒2; and Russell K. Bishop in Sixteenth Century Journal 22 (1991), 358‒9. 18 Maurice Lee, review in American Historical Review 92 (1987), 402‒3. 19 Michael Brown, The Black Douglases: War and Lordship in Late Medieval Scotland, 1300‒1455 (East Linton, 1998); Stephen Boardman, The Campbells, 1250‒1513 (Edinburgh, 2006). 20 Jane E. A. Dawson, The Politics of Religion in the Age of Mary, Queen of Scots: The Earl of Argyll and the Styruggle for Britain and Ireland (Cambridge, 2002); Maureen M. Meikle, A British Frontier? Lairds and Gentlemen in the Eastern Borders, 1540‒1603 (East Linton, 2004); Alison Cathcart, Kinship and Clientage: Highland Clanship, 1451‒ 1609 (Leiden, 2006); Anna Groundwater, The Scottish Middle March, 1573‒1625: Power, Kinship, Allegiance (Woodbridge, 2010); Barry Robertson, Lordship and Power in the North of Scotland: The Noble House of Huntly, 1603‒1690 (Edinburgh, 2011); Allan I. Macinnes, The British Confederate: Archibald Campbell, Marquess of Argyll, c.1607‒1661 (Edinburgh, 2011).

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of the nobility that are open to challenge. Her understanding of the kindred, especially the role of females, and her conclusion that the concept of the whole kindred was ‘something of a myth’, would repay further analysis.21 Similarly, while Jenny’s assertion that ‘the records of lordship were no longer primarily concerned with land grants’ is understandable given that at the time she was looking for bonds, a wider trawl of noble archives indicates that the overwhelming business transacted by nobles was about land and therefore a focus on men rather than land is misplaced.22

III Jenny explained that violence and crime cannot be understood simply from a modern perspective that takes its cue regarding justice and order from the formal law and the courts. Instead, justice and order have to be understood within the context of community and custom, allowing anarchy and bloodshed to be replaced by cohesion and redress. In particular, she held that feuding could no longer be perceived as a peculiarly barbaric Scottish practice, a leftover from a mythical Dark Ages that contrasts with the progressive and enlightened world of Tudor England, Valois France and the other supposedly advanced kingdoms of Europe. Feud, therefore, becomes a means of seeking justice, of restoring relations, of putting things back to where they were before social relationships were fractured, and it existed in a form that was consistent with what might be found in much of the rest of Europe. It even provided what was often a better version of justice than was on offer in formal law courts, a point that may account for some of Jenny’s apparent distaste for the seventeenth century when formal law triumphed over informal custom. On law and order and justice, Jenny’s brilliant analysis is unlikely ever to be overturned. That the feud was not simply a dark stain in Scottish History is unanswerable, and even those historians who have since worked on court records, either to explain the development of the court system or to investigate crime, all acknowledge a debt to Jenny.23 Custom sits securely alongside law in our understanding of justice. Thus, she asserts, ‘Condemnation [of the feud] has been stilled, if not entirely silenced’.24 But did Jenny go too far in explaining away the unattractive side to feuding? This has been Brown’s 21 Wormald, Lords and Men, 86. 22 Wormald, Lords and Men, 87. The importance of land as the basis of economic power is stressed in Brown, Noble Society, 25‒112. 23 Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993); A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009); Cynthia J. Neville, Land, Law and People in Medieval Scotland (Edinburgh, 2010), 198‒9; J. D. Ford, Law and Opinion in Scotland during the Seventeenth Century (Oxford, 2007). 24 Wormald, ‘Bloodfeud’, 55.

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principal criticism.25 One problem with the Wormald analysis stems from the application of its interdisciplinary borrowings. While the deployment of the theoretical influence of anthropologists and sociologists like Max Gluckman and others was stunningly successful in opening up a new avenue of thought, anthropologists can be notoriously prone to going ‘native’, arguing that traditional, primitive societies are morally advanced in relation to the tired, oppressive values of Western capitalism. There has always been a whiff of Marxist idealism at the heart of anthropology. Furthermore, theory needs to be empirically tested, and Jenny’s upbeat version of the bloodfeud does not stack up against the later sixteenth-century evidence of bloody mayhem. Evidence from earlier periods also cast doubts on the sociological theory that lies at the heart of Wormald’s analysis.26 Although further research is required, especially on the period c.1500‒60, the jury is still out on whether late medieval Scotland was unusually violent.

IV At this point it is worth pausing to discuss the political context. As indicated above, the political history of late medieval Scotland was overturned by a small group of scholars who reconstructed our view of the Stewart monarchy. Stewart monarchs, it was argued, co-operated much of the time with their nobles, while operating in what remained an unstable and volatile environment in which crown and nobility clashed, and in which the outcome was varied and uncertain.27 Jenny’s world of lords, men and their feuds provided much of the impetus for this revisionism. Lords, men and their feuds, therefore, inhabited a political landscape in which some nobles did clash with some kings, and in which some noblemen and some kings ended up dead, but in which the underlying political settlement was unperturbed. So, Jenny argued, ‘there is no need to look for dramas behind the making of most bonds 25 Keith M. Brown, Bloodfeud in Scotland, 1573‒1625: Violence, Justice and Politics in an Early Modern Society (Edinburgh, 1986). 26 Stephen I. Boardman, ‘Politics and the Feud in Late Mediaeval Scotland’, unpublished PhD thesis (University of St Andrews, 1990); see also A. Mark Godfrey, ‘Rethinking the Justice of the Feud in Sixteenth-Century Scotland’, Chapter 6 below in this volume. 27 The rewriting of the detailed political narrative was done by Norman Macdougall and his students at the University of St Andrews. In chronological sequence see the regnal studies by Michael A. Penman, David II, 1329‒71 (Edinburgh, 2004); Stephen I. Boardman, The Early Stewart Kings: Robert II and Robert III, 1371‒1406 (East Linton, 1996); Michael Brown, James I (Edinburgh, 1994); Christine McGladdery, James II (Edinburgh, 1990); Norman Macdougall, James III (Edinburgh, 1982); Norman Macdougall, James IV (Edinburgh, 1989); Jamie Cameron, James V: The Personal Rule, 1528‒1542 (East Linton, 1998). The methodological emphasis on the chronological narrative resulted in different conclusions from Wormald’s ideas-driven agenda.

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of manrent’. Bonds were written from time to time as a way of keeping existing social relationships on a steady keel, rather like renegotiating your home insurance every so often.28 Meanwhile, feuds intruded into the generally peaceful community as people fell out with one another. In extreme cases people got killed, but mostly the mechanisms of the feud provided a way of helping them to ease themselves into more positive social relationships. And that may all be true given a particular set of circumstances that engender peace and stability. But what if the underlying political landscape was anything but settled? This is at the heart of the disagreement between Jenny and her critics over late medieval political culture. Might it be that bonds and feuds were always concerned with choreographing the uncompromising struggle for advantage by powerful lords and their kinsmen in a highly unstable, competitive and violent environment? Here the absence of any useful analysis of the first six decades of the sixteenth century is unhelpful, and it might be that something went horribly wrong within Scotland’s political culture from the middle decades of the sixteenth century as the kingdom spiralled into chaos. Brown’s analysis of the later sixteenth century, where war, religious division, the erosion of royal power and major economic stresses placed huge pressure on a social system unable to cope, is also at odds with Jenny’s world of lords and their men at ease. The alternative to the Wormald interpretation is to take her understanding of the structures of royal and noble power alongside her sociological deconstruction of feuding, while seeing bonding as a desperate means of addressing immediate political dangers, and bloodfeud as an urgent response to local and national political threats that were dealt with by the threat and the application of bloody violence.29 An interesting test case is southwest Scotland, where changes in the incidence of disorder accorded to shifts in local political circumstances over very short timescales.30 Before leaving the topic of violence, it should be noted that Jenny argued that one consequence of the disappearance of the world of lords and men was greater state violence. The point she makes is that the difference between the sixteenth- and seventeenth-century attitude to law lay in the former’s ‘willingness to allow conciliation; the state did not yet find it necessary to resort to brutal punishment’.31 Well, not unless you were the assassins of James I, or the latest batch of Border reivers strung up on the nearest tree by James V 28 Wormald, Lords and Men, 105. 29 Brown, Bloodfeud; Brown, Noble Power. 30 J. S. Rule, ‘The Anglo-Scottish Western Borders, 1557‒1573’, unpublished DPhil thesis (University of Oxford, 2001). Dr Rule was supervised by Jenny. Similarly, but on a grander scale, Stuart Carroll shows what happened in France where a similar set of adverse political circumstances lit the fuse to hundreds of local feuds: Stuart Carroll, Blood and Violence in Early Modern France (Oxford, 2006). 31 Wormald, Lords and Men, 166.

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or the Regent Morton! On the broader question of whether society – including government – was getting more violent in the seventeenth century, without empirical evidence this point can only be a guesstimate. Jenny argues that something very dramatic happened after 1600. She concedes that the sudden end of bonding is puzzling because there was no outright attack on it, unlike feuding, but that it was connected to the fact that ‘the localities were being jolted out of their relative autonomy’ by what she describes as a more interventionist government. In support of this, Jenny cites chiefly the crown’s involvement in taxation and the role of the new commissioners of the peace in collecting taxes, alongside the challenges to kin and lord from the church, especially through the working of church courts.32 Moreover, the developments that altered Scotland in the latter half of the sixteenth century were, she says, ‘swift rather than slow’ and ‘may be interpreted as the growing awareness of public authority’.33 Here Jenny is perhaps at her most speculative, which is entirely understandable given that her remarks chiefly concern the period beyond her focus of study. In reviewing Lords and Men, Michael Lynch pointed out that Jenny’s conclusions regarding the disappearance of bonding were little more than suggestions, but that she ‘set the key questions on the agenda for a revision of the mature reign of James VI’.34 Quite so, and although much work has been done in the twenty-six years since Lords and Men was published, we have still not fully addressed that James VI agenda.35 Jenny does offer some explanation for the apparent sudden transformation. She suggests that changes that undermined the need for bonding and the recourse to feuding were applied to lords and their men by the king, by the church and by the lawyers. She argues that ‘Feud can no longer be regarded as a matter of rival groups slogging it out to the death of themselves and their descendants, until time, exhaustion or a more powerful authority brought it to an end’.36 But is that not precisely what she offers as an explanation for the ending of bonding and feuding – the intervention of forms of more powerful authority? Much of the debate over the condition of late medieval and early modern Scottish politics continues to concentrate on government as a progressive force on the one hand, and a reactionary something else that might be overmighty magnates, the localities, the clan or whatever on the other. Yet, oddly enough, Jenny herself allowed remnants of that polarity to linger on in her own analysis of the end of bonding and feuding where she marches government, church and law onto the stage to sweep away the old order. Certainly 32 33 34 35

Wormald, Lords and Men, 161. Wormald, Lords and Men, 164‒5. Michael Lynch, review in EHR 105 (1990), 130‒1. Jenny’s influence on our understanding of James VI’s reign is clear in Julian Goodare and Michael Lynch (eds), The Reign of James VI (East Linton, 2000). 36 Wormald, ‘Bloodfeud’, 55.

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that is how her conclusions have often been interpreted, for example by S. A. Burrell whose review of Lords and Men includes the observation that bonding ended in the early seventeenth century because of the impact of a strong state and church.37 A modified version of this argument suggests that change was not so much imposed on lords and their men as embraced by them, and that the pressure came from nobles who were persuaded by renaissance arguments about civility and church arguments about godliness. Consequently, nobles engaged in good governance as willing agents and partners of the crown.38 Jenny also arrived at problematic conclusions regarding the lawyers, whom she portrayed as a self-contained elite with distinct ideas, values and interests from the rest of society. Thus she conceived of a noblesse de robe who were part of the nobility, but whose power base derived ‘not so much from their lands and followings as from their political role’ and their relationship to the legal profession, which was enhanced by the regal union.39 However, lawyers mattered politically in early modern Scotland only if they were also nobles, in which case they operated from within noble society, not on the outside where they were simply a service sector dependent for the greater part of their business on the nobility.40

V Many historians would be content to make their home in a fifteenth- and sixteenth-century landscape dominated by their ideas, and to spend the remainder of their career refining and defending their position. However, the article on James VI and I in History launched Jenny into the world of English Stuart History. Two years later, in 1985, she shone a Scottish light into the very English story of the Gunpowder Plot by suggesting that the target of the plotters might have been the Scottish king and his Scottish courtiers.41 That same year, Jenny’s brilliant re-evaluation of early Stuart History saw her take the road south that James VI had followed in pursuit of greater prizes when she took up an appointment as a Fellow and Tutor in Modern History at St Hilda’s College, Oxford. In 1987, she was also appointed Lecturer in History at Trinity College, Oxford. Jenny had taken her fight to get Scottish History noticed to the very heart of the orthodox Anglocentric world of British History. Jenny was now at the forefront of the debate over the ‘New British 37 38 39 40

S. A. Burrell, review in Albion 19 (1987), 140‒2. Brown, Bloodfeud, 183‒274; Brown, Noble Power. Wormald, Lords and Men, 162. John Finlay, Men of Law in Pre-Reformation Scotland (East Linton, 2000); Brown, Noble Power, 172‒8. 41 Jenny Wormald, ’Gunpowder, treason and Scots’, Journal of British Studies 24 (1985), 187‒209.

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History’, which was at its most controversial and creative in the early modern period. She was in high demand, being awarded Visiting Fellowships at the Huntington Library and the Folger Shakespeare Library in 1991, and accepting honorary professorships in the USA in 1992 and 1994. In a series of articles and essays throughout the 1990s and 2000s to the present decade (2010s), Jenny argued the case for rethinking the regal union and the creation of Britain by hammering away at the notion that English historians could understand James VI and I without reference to Scotland. She published incisive articles and essays on the multiple kingdom/core and colony debate, on the regal union of 1603 and on British identity. In characteristic fashion, Jenny overstated the case from time to time, exaggerating James VI’s pre-1603 achievements, offering an over-optimistic view of post-1603 Scotland, and blaming English political culture for James VI and I’s failings and for any of the problems with the regal union.42 Yet, tellingly, it was Jenny who was invited to write the 27,000-word article on James VI and I for the Oxford Dictionary of National Biography, published in 2004, a choice that endorsed her point that no one could understand this often underestimated king unless they addressed his entire life and political career. At the same time, Jenny continued to reflect on aspects of late medieval and early modern Scottish History.43 42 Jenny Wormald, ‘James VI and I, Basilikon Doron and The Trew Law of Free Monarchies: the Scottish context and the English translation’, in Linda L. Peck (ed.), The Mental World of the Jacobean Court (Cambridge, 1991), 36‒54; Jenny Wormald, ‘The creation of Britain: multiple kingdoms or core and colonies?’, TRHS 6th series, 2 (1992), 175‒94; Jenny Wormald, ‘The union of 1603’, in Roger A. Mason (ed.), Scots and Britons: Scottish Political Thought and the Union of 1603 (Cambridge, 1994), 17‒40; Jenny Wormald, ‘The high road from Scotland: one king, two kingdoms’, in Alexander Grant and K. J. Stringer (eds), Uniting the Kingdom? The Making of British History (London, 1995), 123‒32; Jenny Wormald, ‘James VI, James I and the identity of Britain’, in Brendan Bradshaw and John Morrill (eds), The British Problem, c.1534‒ 1707 (London, 1996), 148‒71; Jenny Wormald, ‘“O brave new world”? The union of England and Scotland in 1603’, in T. C. Smout (ed.), Anglo-Scottish Relations from 1603 to 1900 (Proceedings of the British Academy, vol. 127: Oxford, 2005), 13‒35; Jenny Wormald, ‘The happier marriage partner: the impact of the union of the crowns in Scotland’, in Glenn Burgess, Rowland Wymer and Jason Lawrence (eds), The Accession of James I: Historical and Cultural Consequences (Basingstoke, 2006), 69‒87. 43 For example, Jenny Wormald, ‘Scotland, 1406‒1513’, in Christopher Allmand (ed.), The New Cambridge Medieval History, vol. vii: c.1415–c.1500 (Cambridge, 1998), 514‒31; Jenny Wormald, ‘Godly reformer, godless monarch: John Knox and Mary Queen of Scots’, in Roger A. Mason (ed.), John Knox and the British Reformations (Aldershot, 1998), 221‒41; Jenny Wormald, ‘The witches, the Devil and the king’, in Terry Brotherstone and David Ditchburn (eds), Freedom and Authority: Scotland, c.1050–c.1650: Historical and Historiographical Essays Presented to Grant G. Simpson (East Linton, 2000), 165‒80; Jenny Wormald, ‘Thorns in the flesh: English kings and unco-operative Scottish rulers, 1460‒1549’, in G. W. Bernard and S. J. Gunn (eds),

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On her retirement from Oxford in 2005, Jenny accepted an Honorary Fellowship at the University of Edinburgh where she continues to teach and to be astonishingly productive in research. In addition to specialist essays, she has edited three volumes, including most recently in 2012 with Tom Devine The Oxford Handbook of Modern Scottish History.44 Meanwhile she has taken on the role of Chair of the Scottish Medievalists Conference, a role to which she has brought her characteristic energy and determination, becoming more engaged in public debate than her predecessors.

VI It would have been much easier to use this opportunity only to praise Jenny, underlining all the points where she got it right, but I think that would disappoint her. Mostly she did get it right, but she also left us with some very big questions that still need to be resolved, with some gaps that need to be filled in, and with some characteristic overstatements that may need to be modified. Over forty years since the publication of ‘Taming the magnates?’ she continues to engage in and provoke discussion, and the agenda Jenny laid out, especially in the first half of the 1980s, remains at the heart of many of the debates that light up late medieval and early modern Scottish and British History. I will end on a personal note, as I had the very great privilege of being taught as an undergraduate by Jenny and having her as my PhD supervisor. Both experiences were unforgettable, and it is because of her inspirational teaching and relentless questioning that I ended up following a career in Scottish History. My first awareness of Jenny was in the second term of the 1975‒6 session at the University of Glasgow where I enrolled at the last minute in Scottish History, largely because of the restrictions in the timetable and because I had read Nigel Tranter’s Bruce trilogy while working in the steelworks that summer. First term was interesting enough as we made our way from the Picts through to the late medieval period, but it was Jenny’s tutorials on early modern Scotland in the Candlemas term that I recall most vividly. Jenny’s office was on the very top floor of No. 9, University Gardens, where the Scottish History Department was located; a small, compact room Authority and Consent in Tudor England: Essays Presented to C. S. L. Davies (Aldershot, 2002), 61‒78; Jenny Wormald, ‘The headaches of monarchy: kingship and the kirk in the early seventeenth century’, in Julian Goodare and Alasdair A. MacDonald (eds), Sixteenth-Century Scotland: Essays in Honour of Michael Lynch (Leiden, 2008), 365‒93. 44 Jenny Wormald (ed.), Scotland: A History (Oxford, 2005); Jenny Wormald (ed.), The Seventeenth Century (Short Oxford History of the British Isles: Oxford, 2008); T. M. Devine and Jenny Wormald (eds), The Oxford Handbook of Modern Scottish History (Oxford, 2012).

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where the teaching was intense, up close and personal. Here I encountered a tutor who was intellectually challenging and who liked to argue even with an opinionated, self-righteous teenager. By the end of that term the decision had been made to dump Philosophy and stick with Scottish History. I had to wait until Martinmas of 1977‒8 to join Jenny’s class on fifteenth- and sixteenthcentury Scottish politics, a course that a few years later would become Court, Kirk and Community. Those who have read the book know it to be provocative, exciting, amusing and rigorous, and a great read. But the real thing was so much better – it was like the difference between a studio recording and a live concert 1970s style, with the solo act chain-smoking through the performance. Most of us on that course signed up for the special subject on James VI in the following year, and by that time I had decided who was going to supervise my PhD even if Jenny had not yet agreed! The class was special in every sense as we were exposed to gripping, energising, inspiring research-led teaching from a lecturer bursting with ideas and opinions at the very top of her game. For those of us who had the good fortune to enlist in Jenny’s classes, History was a living, breathing thing, and Scottish History was mainstream, selfconfident, comparative, interdisciplinary, trendy, relevant and worth devoting some of your time to reading about it, arguing over it in the pub, or even making a career out of it. My decision to undertake postgraduate research at Glasgow (against some strong advice from senior academics) was never in doubt when the most exciting scholarship in early modern Scottish History was being conducted there. Jenny insists that I asked her to be my supervisor while giving notice that I was going to prove her wrong about feuds. Many academics would not tolerate such impudence; Jenny, of course, encouraged it. What followed was three years of rigorous research in which time and again Jenny pushed me to read outside of the immediate topic, or even the subject, to stretch for the deep intellectual connections that can make the events of one small place in one short period in time of universal significance. Of course, supervision then was very different from the managed and audited world we now inhabit. Jenny issued an open invitation to come and see her when I had something to talk about, or something for her to read, and the conversations and the feedback, which usually involved lunch at the University staff club, were never disappointing. In due course, the thesis was finished on time and I went east to St Andrews while Jenny went south to achieve fame at Oxford, from where she wrote one letter of support after another as I chased fellowships and lectureships for the next eight years. Teachers and their students have a curious relationship of responsibilities and debts – not unlike lords and men – with its very own homage rituals. Clearly my debts to Jenny are many, both personal and intellectual. The most recent tutorial I had with Jenny was in my home in St Andrews in the late summer of 2010. She had read the manuscript of Noble Power and

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had come to give me feedback, and I was as nervous of getting the Jenny approval as I was when I got my first essay back from her as an undergraduate thirty-four years earlier. And, as always, we argued. It has been one of the great privileges of my life to have had in Jenny a teacher, a mentor, a colleague and a friend.

chapter 2

Lords and Women, Women as Lords: The Career of Margaret Stewart, Countess of Angus and Mar, c.1354-c.1418 STEVE BOARDMAN The significance of patrilineal descent, and the concomitant ties of blood and surname, for the way in which late medieval Scottish aristocrats thought about and articulated their identity and place in society has been much discussed in recent scholarship, most notably in two brilliant studies by Jenny Wormald published in the 1980s.1 One of the most important conclusions arising from Wormald’s wide-ranging analysis was that the obligations of kinship, feud, lordship and service, far from acting to disrupt and destabilise local society (as older interpretations assumed), were vital to the successful operation of justice and the maintenance of social order and governmental authority. In evaluating the relative strength of the ties that bound aristocratic society together, Wormald broadly accepted the evidence for the primacy of links between male kinsmen, and the fundamental importance of the sense of belonging to, and being obliged to defend and promote the interests of, an agnatic kin-group. The bonds established through marriage and the obligations to marital and maternal kinsmen were seen, in comparison, as essentially fragile and ephemeral.2 31 Jenny Wormald, ‘Bloodfeud, kindred and government in early modern Scotland’, Past and Present 87 (May 1980), 54‒97; Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985); also Keith M. Brown, Bloodfeud in Scotland, 1573‒1625 (Edinburgh, 1986). 32 However, while acknowledging the contemporary weight given to connexions, both real and imagined, between men who bore the same surname, Wormald also pointed out that the effective limits of these notional mutual obligations were often hazy and variable. The sense of solidarity between very distantly related and/or geographically dispersed members of the same surname was often weak, and successful lordship depended not just on a network of male kinsmen, but also on a lord’s links to a more heterogeneous group that reflected other forms of close kinship, geographical proximity, a sense of neighbourliness and friendship, and traditions of service to great local figures. Wormald, Lords and Men, 86.

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I Examples of noblemen expressing commitment to the welfare and prosperity of their male lineage are certainly not hard to find in late medieval Scotland. One document type where these sentiments could be invoked with particular clarity was the charter of tailzie (entail), by which landowners sought to regulate the descent of property rights to the advantage of family members who might not otherwise have had strong claims on part or all of a lord’s estates after his death. The entailing of property to male relatives (typically brothers, uncles or cousins and their male heirs) at the expense of heirs general was an intermittent practice in fourteenth- and fifteenth-century Scotland, although a full assessment of the scale and frequency of this type of arrangement is still required.3 The concern to avoid female inheritance could sometimes be articulated with startling vehemence, as in James Douglas of Dalkeith’s 1369 entailing of his barony and castle of Dalkeith, which limited the descent of the properties ‘always to heirs male of the said James having the surname [cognomen] Douglas’, with descent to a female heiress only countenanced if ‘all heirs male of the forsaid surname of Douglas’ had ‘wholly failed’.4 A more concise formula was employed in other male entails dating to the second half of the fourteenth century, with grants in favour of named individuals and their male descendants finishing with a catch-all destination to the nearest male heirs of the grantee bearing the same surname and coat of arms, or the same blood and surname.5 These general clauses expressed an attachment to, and a preoccupation with, the continued wellbeing of the ‘surname’ as an almost abstract entity, embodied in the coat of arms, that both embraced and existed beyond the circle of living kinsmen of the grantee: the lineage had a history and (it was hoped) a future that had to be honoured and safeguarded.6 A charter of entail of 1356 by Robert the Steward to Sir John Stewart of Crookston (with a destination to John’s brothers Walter and Alexander and their heirs male) was, 33 Entails were also used to direct resources to younger or illegitimate sons and daughters or other non-lineal relatives. The vast majority of estates remained unentailed and liable to descend to heirs general. One family, the Campbells of Argyll, employed them as their standard charter form throughout the fifteenth century. For discussion of the impact of entailing in England see S. J. Payling, ‘Social mobility, demographic change, and landed society in late medieval England’, Economic History Review 45 (1992), 51‒73; S. J. Payling, ‘The economics of marriage in late medieval England: the marriage of heiresses’, Economic History Review 54 (2001), 413‒29. 34 RMS, i, no. 335. See also no. 502 for similar phrasing in a charter conveying lands in Drem to William Lindsay of the Byres. 35 For examples of these phrases in male entail charters see, NRS, Dalhousie Muniments GD 45/16/no.305 (15 June 1367); NLS, Crawford and Balcarres Muniments B5 (20 December 1379) and B6 (19 October 1378); RMS, i, 653, 686. 36 For discussion of the historical theories explaining the origin and development of the male lineage in medieval Europe, the importance of heraldic representation as a means

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it was claimed, made ‘for the honour and utility of our surname [cognomen]’ and ended with a general destination to men bearing the blood of Sir John and the name Stewart ‘forevermore [literally ‘to eternity’, in eternam]’.7 Robert the Steward’s evident pride in his ‘surname’ and lineage was manifested again when, sometime after becoming king in 1371, he commissioned John Barbour, most famous as the author of the Bruce, to produce a now-lost genealogical history which traced the origins of ‘le Stewartis’ back through the family’s twelfth- and thirteenth-century ancestors into the pseudohistorical world of the Brut legend.8 Given the offhand references in the chronicles of Andrew of Wyntoun, Walter Bower and Hector Boece, and literary works such as Blind Hary’s Wallace, to individuals or episodes (often mythical) that explained the establishment or etymology of certain surnames it seems likely that the Stewarts were not alone in cultivating a narrative account of their patrilineal origins and accomplishments, although full extant examples of these lineage histories do not survive for the period before the sixteenth century.9 There were other indications of a late medieval concern with, and an elevation of, the surname. When, in the first half of the fifteenth century, a new tier emerged in the Scottish aristocratic hierarchy in the shape of the Lord of Parliament, the title style adopted generally reflected the lord’s family name, thus Lord Drummond, Lord Graham, Lord Campbell etc., rather than the territories they held.10 The imagined or assumed correlation between lordly title and status as head of kin was made explicit in 1489 in a parliamentary discussion of the competing claims of a number of individuals to the title Lord Sinclair. It was noted that Sir Henry Sinclair’s father and grandfather had both held the title and that since they were both dead and he was the ‘richtwise heretare to tham … that he is cheiff of that blude and will thar for that he be callit Lord Sinclar in tyme to cum’.11

37 38 39 10

11

of representing the continuity and integrity of male descent, and some questioning of the extent to which the agnatic lineage actually dominated medieval conceptions of kinship relations see David Crouch, ‘The historian, lineage and heraldry, 1050‒1250’, in Peter R. Coss and Maurice H. Keen (eds), Secular Society and Social Display in Medieval England (Woodbridge, 2002), 17‒37. Sir William Fraser (ed.), The Lennox, 2 vols (Edinburgh, 1874), ii, 27‒8 (no. 23). Steve Boardman, ‘Late medieval Scotland and the matter of Britain’, in Edward J. Cowan and Richard J. Finlay (eds), Scottish History: The Power of the Past (Edinburgh, 2002), 47‒72, at pp. 51‒5. For a sixteenth-century compilation see Sir Richard Maitland, The History of the House of Seytoun to the year M.D.LIX, ed. John Fullarton (Bannatyne Club, 1829). For the emergence of Lords of Parliament see Alexander Grant, ‘The development of the Scottish peerage’, SHR 57 (1978), 1‒27. Locative titles, such as Lords Crichton of Sanquhar, Hay of Yester and Abernethy of Rothiemay, seem to have been used where the surname had already been employed in the designation of an established lordship. RPS, 1489/1/6.

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One of the by-products of the recognition of the centrality of male kinship in the organisation of political society has been a tendency for scholars to ignore or minimise the role, influence and agency of individual female aristocrats, and to underestimate the overall impact of noblewomen, particularly as heiresses and dowagers, on the distribution and control of land and resources in late medieval Scotland. The present chapter is a case-study, focused largely on the career of one woman, Margaret Stewart, heiress to the earldom of Angus and dowager countess of Mar, rather than a general exploration of these issues. Nevertheless, Countess Margaret’s career raises some interesting wider questions, not only about the extent of land and local authority held by noblewomen, but also about the way in which non-agnatic relationships such as those established through matrimony, motherhood in sequential marriages, or the mutual links that shaped and bound together a local or regional noble community, might be influential in determining an individual aristocrat’s circle of friends, allies and ‘partakers’.

II Margaret Stewart’s prominent role in the internal politics of the Scottish realm in the late fourteenth and early fifteenth century has been outlined in recent narrative accounts of the reigns of Robert II and Robert III and the history of the Black Douglas kindred. The details of the territorial disputes in which she became involved can be consulted there.12 For much of her adult life Margaret’s main concern, aside from defending her own rights and revenues, was to secure titles and estates for her illegitimate son George Douglas and his heirs, an endeavour in which, for various reasons, she had little or no support from her own paternal kin, the Stewarts, or her son’s male kinsmen, the Douglases. This chapter concentrates, then, on the nature of the network of kinsmen and friends that allowed Countess Margaret to play a significant part in the quarrels that convulsed the political community during the late 1380s and 1390s, and attempts to trace the way in which her actions reflected her ambitions, duties and obligations as an heiress, widow, landholder and, above all, as a mother and grandmother. The role and influence of noblewomen as active participants in political courtly culture, as administrators of estates on behalf of their often absent 12 Steve Boardman, The Early Stewart Kings: Robert II and Robert III, 1371‒1406 (East Linton, 1996), 82, 150, 160‒4, 166‒7, 204, 294‒5; Michael H. Brown, The Black Douglases: War and Lordship in Late Medieval Scotland, 1300‒1455 (East Linton, 1998), 76‒94. See also Alexander Grant, ‘Royal and magnate bastards in the later middle ages: the view from Scotland’, in É. Bousmar, A. Marchandisse and B. Schnerb (eds), La bâtardise et l’exercise du pouvoir (XIIIe–début XVIe siècle) (Bruxelles, Publications des Facultés Universitaires Saint-Louis) forthcoming. My thanks to Dr Grant for the chance to view this work ahead of publication.

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husbands, as negotiators between their natal and matrimonial families, as protectors of the interests of their children and, usually in widowhood, as wealthy independent landowners, have been widely studied in the much better documented context of late medieval England.13 In the absence of an authoritative examination of these themes as they affected the late medieval Scottish aristocracy any observations offered here must necessarily be regarded as tentative. It is, however, worth emphasising that Margaret was not a unique figure in the fourteenth- and fifteenth-century realm. The capricious mortality of the age brought male lineages to a premature end on a regular basis, often leaving extensive lands and rights in the hands of heiresses.14 Wives frequently outlived their husbands, sometimes by decades, and, as widows, held claims to a substantial part of their dead spouses’ property. Many of the most disruptive conflicts in the late medieval kingdom had their origin in a struggle for control of resources legally belonging, on a heritable or temporary basis, to female aristocrats. Narrative histories have tended to portray these women as vulnerable and passive figures, prey to the ambitions of individual male aristocrats and the lineages they represented. While the physical coercion, abduction or forcible marriage of heiresses and widows were not unknown, these episodes have to be balanced against examples of noblewomen playing an active role in the defence of their own, and very often their offspring’s, rights. Margaret Stewart may provide a particularly striking illustration of the latter phenomenon, but she hardly stood alone.

III Margaret Stewart was the elder of two daughters produced by Thomas Stewart, earl of Angus (d.1362) and his wife Margaret Sinclair in a marriage 13 For example, Rowena E. Archer, ‘“How ladies … who live on theirs manors ought to manage their households and estates”: women as landholders and administrators in the later Middle Ages’, in P. J. P. Goldberg (ed.), Woman is a Worthy Wight: Women in English Society, c.1200‒1500 (Stroud, 1992), 149‒81; Rowena E. Archer, ‘Rich old ladies: the problem of late medieval dowagers’, in Anthony Pollard (ed.), Property and Politics: Essays in Later Medieval English History (Gloucester, 1984), 15‒35; Barbara J. Harris, ‘Property, power and personal relations: elite mothers and sons in Yorkist and early Tudor England’, Signs 15 (1990), 606‒32; Barbara J. Harris, ‘Women and politics in early Tudor England’, Historical Journal 33 (1990), 259‒81; Joel T. Rosenthal, ‘Aristocratic widows in fifteenth-century England’, in Barbara J. Harris and JoAnn K. McNamara (eds), Women and the Structure of Society (Durham, NC, 1984), 36‒47. 14 For discussion see Alexander Grant, ‘Extinction of direct male lines among Scottish noble families in the fourteenth and fifteenth centuries’, in K. J. Stringer (ed.), Essays on the Nobility of Medieval Scotland (Edinburgh, 1985), 210‒31.

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that began c.1353.15 The Stewart lineage in Angus was only founded towards the end of the reign of Robert I (1306‒29), and fate had conspired to ensure that it had not prospered. The fragility of the male line was marked: the seventy or so years between the establishment of Margaret’s grandfather, John Stewart, lord of Bunkle (Berwickshire), as earl of Angus by Robert I shortly before June 1329 and the close of the century, probably witnessed less than twenty years in which adult males held the title and exercised control of the earldom. For the remainder of the time dowager countesses and, latterly, heiresses held sway. Moreover, the territorial and jurisdictional integrity of the earldom itself had been weakened by the fact that the title had been in abeyance for some time before it was revived for John Stewart. The Umfraville family, which had held the earldom in the thirteenth century, had remained in English allegiance in the early decades of the fourteenth century and the earldom had been forfeited by the Bruce regime. Margaret’s grandfather John Stewart had been married, around the time of his elevation to comital rank, to Margaret Abernethy, one of the two daughters and co-heiresses of Sir Alexander Abernethy (d.c.1315), who, like the Umfravilles, had been pro-English.16 The marriage was short-lived, with Earl John dying on 9 December 1331, by which stage the union had produced one child, Thomas Stewart, the sole heir to Angus and the lordships of Abernethy (from his mother) and Bunkle (from his father).17 Countess Margaret Abernethy proved to be a long-lived dowager, outlasting her husband by around forty years and living into the 1370s. Margaret Abernethy’s sister Mary (great-aunt of Margaret Stewart) had a more adventurous and fecund marital career. She married at least twice, and produced numerous children.18 Mary’s sons from her marriages to Sir Andrew Leslie and Sir David Lindsay formed an important political grouping in Scotland north of the Forth and around the royal courts of David II (1329‒71) and Robert II (1371-1390).19 Despite Mary Abernethy’s death sometime before 1355 her sons continued to associate with each other, Mary’s sister Margaret, their maternal aunt, and Margaret’s son, Earl Thomas – the father of Margaret Stewart. 15 The papal dispensation allowing the marriage was obtained in the summer of 1353: Augustus Theiner, Vetera Monumenta Hibernorum et Scotorum Historiam Illustrantia (Rome, 1864), 304. The couple supplicated for the right to a portable altar as earl and countess of Angus in 1355: Calendar of Entries in the Papal Registers relating to Great Britain and Ireland: Papal Letters [Cal. Pap. Letters], eds W. H. Bliss et al., 16 vols (London, 1893), iii, 556. 16 Cal. Pap. Letters, ii, 283. 17 Chron. Bower (Watt), vii, 71‒3. 18 Mary is usually portrayed as the younger sister, although she was married at least twice, first to Sir Andrew Leslie and then, c.1324‒5, to Sir David Lindsay, well before Margaret’s first recorded marriage to John Stewart. 19 Fraser, Douglas Book, iii, 391 (no. 313), for the Leslie marriage; Cal. Pap. Letters, ii, 241, for the Lindsay marriage.

James

=

=

Donald, earl of Mar

=

James Douglas, 2nd earl of Douglas and Mar (k.1388, Otterburn) Elizabeth Douglas

George Douglas, earl of Angus (d.1402/3)

Margaret, countess of Mar

=

Alexander Lindsay, lord of Glen Esk (d.1382)

William Lindsay of the Byres

(2) David Lindsay

Isabella Douglas, countess of Mar

=

Malcolm Drummond, lord of Mar (d.1402)

William Douglas, 1st earl of Douglas and Mar (d.1384)

James Lindsay, lord of Crawford (d.1358)

(1) Andrew Leslie

Figure 2.1 The earls and countesses of Angus in the fourteenth century.

=

=

Walter Leslie, lord of Ross

Mary Abernethy (d.b.1355)

Margaret Thomas, Stewart, earl of = countess of Mar Angus and Mar (d.1377) (d.c.1418)

Thomas Stewart, earl of Angus (d.1362)

Margaret Abernethy, countess of Angus (d. after 1371)

Mary Stewart, daughter of Robert III

Walter

Margaret Sinclair, countess of Angus

=

William Douglas, earl of Angus

William Sinclair of Herdmanston, tutor of William, earl of Angus

John Sinclair of Herdmanston

Sir John Sinclair of Herdmanston

John Stewart, earl of Angus (d.1331)

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The friendly interaction between Countess Margaret Abernethy, widow of John Stewart and dowager countess of Angus, and her Leslie and Lindsay nephews grew more significant in the wake of the death of Margaret’s son and heir, Thomas Stewart, earl of Angus, in 1362. Margaret Abernethy obviously did not feel particularly committed to ensuring that her lineal heirs, her granddaughters, over whose marriages she had no control, would receive all the lands, rights and titles she held simply to carry them into other lineages. In the 1360s Countess Margaret thus permanently alienated a number of estates to her favoured nephew Alexander Lindsay and others, diminishing the inheritance that would eventually descend to her grandchildren.20 Earl Thomas was the only son of an only son (see Figure 2.1) so that on his premature death in 1362, aged around 32, Margaret Stewart and her sister Elizabeth (who is not shown in Figure 2.1) were left with virtually no close paternal kinsmen, brothers, uncles or cousins.21 They were not, however, without male relatives. Their mother, Margaret Sinclair, had been married to, and left a widow by, Sir John Sinclair of Herdmanston (East Lothian) before her union with Thomas Stewart. The earlier match had produced at least three sons, John (who succeeded his father as lord of Herdmanston), James and Walter.22 It is impossible to say anything about the potential childhood connections established between the children of Countess Margaret Sinclair’s two marriages, but it is evident that throughout her life Margaret Stewart enjoyed a close relationship with the Sinclair half-brothers and nephews who were her nearest kinsmen. Where half-siblings shared a mother, they were not, of course, members of the same patrilineage, but their kinship was undeniable and freely acknowledged, and clearly brought with it some expectation of reciprocal support. Margaret Stewart’s early life is obscure. As a potential heiress she was married to a nobleman of suitably high rank, Thomas, earl of Mar, who may have been her second cousin and was at least twenty years her senior.23 Margaret’s career as a married countess, whenever it began, has left little 20 RMS, i, nos 141, 337, 489, 612; NRS, GD121/3/7. 21 Chron. Bower (Watt), vii, 318‒21. The earl died of the plague in Dumbarton Castle while a prisoner of David II. 22 RMS, i, App 1. nos 139, 1477; App 2., nos 1320, 1449; ER, i, 510; ii, 78, 115. The suggestion that Margaret married Sir John Sinclair after the death of Earl Thomas is mistaken. J. B. Paul (ed.), The Scots Peerage, 9 vols (Edinburgh, 1904‒14), i, 170. 23 For Mar’s career see Fiona Watson, ‘Donald, eighth earl of Mar (1293‒1332)’, ODNB. Michael G. H. Kelley, ‘The Douglas Earls of Angus: A Study in the Social and Political Bases of Power of a Scottish Family from 1389 until 1557’, 2 vols, unpublished PhD thesis (University of Edinburgh, 1973), i, 72, argues that the match was arranged with paternal approval (i.e. before Earl Thomas’ death in 1362), although that would have entailed an espousal well before the usual age for such an arrangement.

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trace. She presumably took up residence in Earl Thomas’ north-eastern earldom and gained experience of running an aristocratic household. The marriage however, remained childless and Earl Thomas died early in 1377. On 14 July 1377 Countess Margaret was given possession of extensive estates within the earldom of Mar as her terce (widow’s portion). The countess’ brieve of terce was delivered to the sheriff of Aberdeen at Inverurie by her half-brother John Sinclair, described as her actornatus (legal representative). This was an early indication of the central role the Sinclairs of Herdmanston would play in supporting her interests for the rest of her life.24 The widow’s terce in Mar, combined with her prospective Angus inheritance, would seem to have made Margaret, still only in her mid-twenties at the time of her husband’s death, a significant target for ambitious lords seeking social and financial advancement through the marriage market.25 There was, however, to be no new husband, and instead Margaret entered into an unorthodox arrangement with her late husband’s brother-in-law William, first earl of Douglas. Douglas was the husband of Thomas of Mar’s sister (also Margaret) and, following Earl Thomas’ demise without heirs in 1377, he became the new earl of Mar. Douglas would have been understandably eager to prevent wide rights within his newly acquired earldom of Mar falling into the hands of any future husband of his wife’s young and recently widowed sister-in-law. Earl William’s prospects of concluding a satisfactory settlement with Margaret were no doubt enhanced by the fact that the countess’ Sinclair half-brothers were already part of his social and political affinity in East Lothian. Some time before 2 January 1379 Margaret moved from Mar to the East Lothian fortress of Tantallon, part of the barony of North Berwick held by Earl William from the earls of Fife, from where she issued a charter of Kimmerghame in Berwickshire in favour of her ‘dearest brother’ John Sinclair of Herdmanston.26 Margaret issued a further charter from Tantallon in August 1381 and was specifically noted as having her ‘Innys’ [lodgings or dwelling place] in the castle in January 1389: she had, in effect, abandoned Mar and taken up permanent residence in Earl William’s fortress.27 The terms of a settlement concluded around 11 May 1381 confirm that the countess had decided to end her direct involvement in the northern earldom by renting the estates and lifetime rights she held in Mar to Earl 24 Fraser, Douglas Book, iii, 24‒5 (no. 29). 25 See Rosenthal, ‘Aristocratic widows’, for a witty and humane discussion of the variability in attitude to further marriages as displayed by widowed late medieval English noblewomen. 26 AB Ill., iv, 724. 27 HMC, Fourteenth Report, Appendix 3, MSS of Earl of Strathmore, 181 (no. 11); Fraser, Douglas Book, iii, 32‒3 (no. 40).

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William and his wife and their heirs in return for a substantial annuity of 200 merks sterling. It may not be coincidental that four days after the issuing of Earl William’s letters confirming the terms of this deal his son and heir, James, received an annuity of 200 merks sterling from Robert II to be taken from the great customs of Haddington. It is tempting to speculate that the Douglases were intending to use this royal pension, to be raised from a burgh conveniently near Tantallon, to fulfil their financial obligations to Countess Margaret.28 The relationship between William and Margaret strayed beyond the purely monetary and tenurial, for the couple entered into an amorous affair that was not only adulterous (Douglas’ wife, Margaret of Mar, was still alive), but also, in canonical terms, incestuous – Earl William’s letters to Margaret Stewart in May 1381 had addressed her as ‘our systir’. The association produced, on an unknown date, an illegitimate son who was given the baptismal name George. Relationships within the forbidden degrees of affinity and consanguinity were relatively common, as the steady flow of supplications to the papal court requesting dispensation from these restrictions attests, but few combined such a blatant disregard for canonical strictures with adultery.

IV It would be easy to interpret Earl William’s transactions with Countess Margaret after 1377 as little more than a relatively benign Douglas annexation of her rights to various lands and resources. Douglas and Margaret’s halfbrothers were certainly beneficiaries from the settlements concluded in the late 1370s, and the ability of Margaret to dispose of elements of her paternal inheritance. Yet, it would be wrong to assume passivity and powerlessness on the part of Margaret (or indeed any other fourteenth-century heiresses and dowagers). The deal struck in the period after Thomas, earl of Mar’s death allowed Margaret to return to the locale and social circle in which her halfbrothers and other maternal relations moved. She was provided with prestigious accommodation in an imposing newly built residence, probably constructed in the period 1369‒78.29 Her rights as a dowager in Mar were 28 Fraser, Douglas Book, iii, 29-30 (no. 36); ER, iii, 293-4; RMS, i, no.646. Whether 200 merks sterling fully compensated Margaret for one-third of the rental value of Mar estates is unclear. Mar was part of the royal patrimony for periods in the fifteenth century and its total rental value then seems to have been c.1,000 merks Scots. The relative devaluation of the Scottish currency against sterling in the fourteenth and fifteenth centuries complicates the issue, but it may mean that the 1381 annuity represented a sum roughly equivalent to the yearly revenue from the terce-lands in Mar. 29 In 1365 Earl William had entertained a party of visitors to Scotland in his castle at Dalkeith: the group included Jean Froissart, who gave a favourable account of his

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respected, and she obtained significant financial compensation for her abandonment of attempts to directly control and exploit her northern estates. Moreover, the liaison with Earl William brought Margaret the favour of one of the most powerful figures in the realm who was clearly prepared to use his considerable influence to advance the interests of his lover and, after George’s birth, their child. In February 1379 the king, probably prompted by Earl William, granted Margaret’s unmarried sister, Elizabeth Stewart, ‘younger daughter and an heir of Thomas Stewart, earl of Angus’, licence to resign all her hereditary rights to Margaret and promised to confirm these resignations under the great seal.30 In the following year Sir Alexander Lindsay of Glen Esk gave up his claim against Margaret and Elizabeth, as the heirs of Thomas Stewart, to discharge their father’s promise to provide Lindsay with forty merks worth of land once Alexander ‘had tane the ordre of Knycht’. Lindsay’s abandonment of his right was said to have been made specifically ‘at the instance of a noble and mighty lord, William, earl of Douglas’.31 Earl William’s role in securing, protecting (and helping to dispose of elements of) Margaret’s Angus inheritance was short-lived, for he died in April 1384, to be succeeded as earl of Douglas and Mar by his son James. Earl James, no doubt looking to maintain his hold on all of Mar, extended his father’s arrangement with the dowager Countess who continued to reside in Tantallon and, presumably, receive her annuity from the new Douglas earl. encounter with Earl William and his family in his Chronicles, as well as a brief description of his host’s castle at Dalkeith (‘Dalquest’). At that point Dalkeith was presumably Douglas’ principal residence in Lothian. However four years after Froissart was entertained there, Earl William was forced to hand over the castle and barony of Dalkeith to James Douglas (first of Dalkeith), who had been contesting possession of the estate with the earl for some time. It seems likely that William responded to the loss of his Lothian fortress by beginning the construction of Tantallon, which first appeared on record in 1378. Claims that the fortress was built much earlier rest on the appearance of the castle (under the name ‘Dentalonne’) on the so-called Gough Map, which was for many years thought to date to c.1360. However, recent studies have suggested that the map was possibly created towards the end of the fourteenth century or even early in the fifteenth century. The architectural design of Tantallon, and its affinity with other mid-fourteenth-century residences such as Doune, also supports a dating in the third quarter of the fourteenth century. Personal communication, Richard Oram; Oeuvres de Froissart publiées avec les variants des divers manuscripts, ed. Baron Kervyn de Lettenhove (Brussels, 1870) [Froissart], ii, 294, xiii, 219; RRS, vi, pp.445, 458, 482, 488, nos 419, 435, 459, 465; K. D. Lilley and C. Lloyd, ‘Mapping the realm: a new look at the Gough Map of Great Britain (c.1360)’, Imago Mundi, 61 (2009), 1‒28; T. M. Smallwood, ‘The date of the Gough Map’, Imago Mundi, 62 (2010), 3‒29. 30 NRS, Register House Charters, RH6/173; AB Ill., iv, 160‒1. 31 Fraser, Douglas Book, iii, 28‒9 (no. 35).

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The nature of the personal relationship between Earl James and his father’s mistress is irrecoverable, although James’ mother may have been understandably resentful about Earl William’s liaison with Margaret Stewart. In making arrangements (in the period 1384‒88) for the provision of masses for her dead husband and brother, and her still living son, Margaret of Mar, as Alexander Grant has noted, used pointedly less effusive and affectionate language in relation to Earl William than the other beneficiaries.32 In August 1388 the still childless Earl James was slain at the battle of Otterburn, precipitating a major succession dispute over the earldom of Douglas and its associated lordships that plunged the future of Countess Margaret and her young son into doubt. The immediate victors in the struggle were Archibald Douglas, lord of Galloway, who claimed most of Earl James’ border lordships under the terms of an entail dating to 1342 (and who became third earl of Douglas by or in April 1389), and James Douglas of Dalkeith, who obtained control over a range of unentailed Douglas lordships, including Liddesdale. Earl James’ sister, Isabella Douglas, and her husband Sir Malcolm Drummond, were thereby thwarted in their attempt to acquire possession of Earl James’ great southern lordships. Countess Margaret and her young son were, at this stage, not directly involved in, or threatened by, the struggle over the core Douglas estates between Malcolm Drummond on the one hand, and Archibald Douglas and Douglas of Dalkeith on the other. However, Isabella and Malcolm could also legitimately press claims to the rest of Earl James’ inheritance, including the earldom of Mar, the earl’s various hereditary annuities (including the 200 merks from Haddington that may have supported Margaret’s household in Tantallon), the barony of North Berwick, and its chief castle at Tantallon. Over the winter of 1388‒9 Drummond, backed by the superior of North Berwick Robert, earl of Fife (who was also Guardian of the realm), attempted to gain possession of the East Lothian fortress but was rebuffed by the constable Alan Lauder, and others, who were clearly in the service of Countess Margaret.33 Margaret’s household may have been based in Tantallon for about a decade, but she and her men now faced summary eviction from a residence to which she had no hereditary or marital rights. The earl of Fife eventually obtained access to Tantallon around 20 January 1389, but only after he had concluded an agreement with Margaret that allowed her to continue to reside in and use the castle until the issue of rightful ownership had been settled.34 Fife’s letters specified that Margaret ‘the qwilk we fand suiornand [a term implying temporary lodging and emphasising that she had no legal right to possession or occupation] in the 32 Grant, ‘Royal and magnate bastards’; AB Ill., iv, 725‒7. 33 Boardman, Early Stewart Kings, 150. 34 Fraser, Douglas Book, iii, 32‒3 (no. 40).

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Castel of Temptaloun’ could continue to enjoy her residence in the castle for as long as Fife had possession as the superior. The guardian also promised that Margaret would not be forced ‘to do ony thing in the contrar of hir awyn wil, and qwhen that hir likys to remofe, so sal haf fre issov and leif to pass at hir wil, and hir mene, hir famyl [household members].’ Margaret was still issuing charters from Tantallon as late as 21 November 1389 but seems to have moved from the castle at some point thereafter, for all subsequent documents placed her either at the Sinclair castle of Herdmanston or the adjacent manor house of Begbie.35

V Despite the difficulties caused by Earl James’ death, the position of Countess Margaret and her son was far from hopeless. During her long residence in Tantallon, a number of local men beyond her Sinclair kinsmen had come to regard her as an influential figure. Moreover her young son, although illegitimate, was the offspring of Earl William and thus a living link to the great comital dynasty that had been extinguished in 1388. The prominence of East Lothian men in Froissart’s account of the earl’s supposedly heroic death at Otterburn is striking, and attests to the embedded nature of Earl James’ military and social lordship in the region. Sir John and Sir Walter Sinclair, Margaret’s half-brothers, had reputedly attended the fatally wounded earl on the field and had been urged by him to fight on in his name. It was John and Walter who, Froissart suggested, took the Douglas banner from the earl’s dead standard-bearer and carried it back into the fray. The account also picked out the heroic defence of the earl by a priest with the suggestive name William of North Berwick, and narrated that he had been grievously, but not fatally, wounded in the encounter that cost the earl his life.36 35 Calendar of the Laing Charters, 854‒1837, ed. Joseph Anderson (Edinburgh, 1899), 97‒8 (no. 379, entry no. 7), letters issued on 30 March 1389 from Tantallon; Fraser, Douglas Book, iii, 34‒5 (no. 42), charter by Margaret, countess of Mar and Angus, to ‘our dear brother’, Sir Walter Sinclair of lands in the lordship of Abernethy, to be held by him and his heirs male legitimately procreated from us and George de Douglas, ‘our son and assignee’, and his heirs. Witnessed by John Haliburton, lord of the same; William Lindsay, lord of the Byres; John Sinclair, lord of Herdmanston, our [Margaret’s] brother; John Liddale, William Borthwick, knights; Alexander de Cockburn, Alan de Lauder, at Tantallon, 21 November 1389; ‘Bagby iuxta Hyrdemanstone’ as it was described in January 1416: AB Ill., iv, 733‒4. 36 Froissart, xiii, 224‒5; Jean Froissart, Chronicles, trans. Geoffrey Brereton (Harmondsworth, 1968), 344. Froissart also claimed that the same priest, later in the year, became an archdeacon and canon of Aberdeen, but there is no such man on record. It is almost tempting to see in this tale, which Froissart probably heard from Scottish knights he met in Avignon during 1389, an attempt to present

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Earl James had, in his short career as earl of Douglas, been attended by a number of lairds whose principal residences and interests lay in, or near, Haddington: William Lindsay of the Byres, John Haliburton, lord of Dirleton, Robert Lauder of the Bass, William Borthwick, lord of Catcune and the unknighted Alexander Cockburn and Alan Lauder.37 Members of this group had also witnessed at least some of the charters issued by Countess Margaret from Tantallon between 1379 and 1388 and all, with the exception of Lauder of the Bass, were in attendance to witness Countess Margaret’s grant from the castle in November 1389, in favour of her half-brother Walter Sinclair, one of the men who had supposedly been personally delegated by the dying James to defend the Douglas banner.38 Now, deprived of the protection and social leadership provided by the Douglas earls, these East Lothian lairds transferred their loyalty and adherence to the countess and her young son. While the rest of the Douglas surname were indifferent or openly hostile to George Douglas, Earl William’s son could count on the support of his maternal relations and a local lairdly community habituated to Douglas lordship. The disaster at Otterburn meant that Countess Margaret had entered a new stage in her career in which she operated as an independent figure in the politics of the region and indeed the kingdom.

VI From 1389 there were three distinct issues that called for Margaret’s attention. First, securing her son’s right to inherit her own Angus estates and the lordships of Abernethy and Bunkle. Second, re-asserting her claims as dowager countess of Mar. The settlement with the first and second earls of Douglas and Mar, which had seen Margaret receive a 200-merk annuity in exchange for her terce rights inside Mar, had been ended by Otterburn. Control of the earldom passed to Earl James’ sister Isabella and her husband Malcolm Drummond (who became lord of Mar in right of his wife):

the Sinclairs of Herdmanston as, symbolically, the posthumous defenders of Earl James’ honour and legacy. Such a presentation is especially interesting given the postOtterburn position of their young nephew, Earl James’ half-brother. 37 See for example his undated grant as lord of Lauderdale: Sir William Fraser, Memorials of the Earls of Haddington, 2 vols (Edinburgh, 1889), ii, 225‒6 (no. 282). 38 The charters/letters issued, or likely to have been issued, by Margaret from Tantallon after 1379 (in rough chronological order – some have no specified date of issue) were witnessed by a mix of local men, Douglas adherents and the countess’ own kinsmen, although in many cases these were extensively overlapping categories: AB Ill., iv, 724, January 1379; NRS, Murthly Castle Muniments, GD121⁄3⁄21 (1378‒1382); Fraser, Douglas Book, iii, no. 28 (placed too early in volume, 1378‒82).

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Margaret would now have to negotiate with Malcolm and Isabella to ensure that she received her due from the northern earldom as the widow of Earl Thomas. Third, and most ambitiously, advancing the position of George Douglas as a potential heir to lordships that had been held by his father and half-brother and which had not passed to Archibald Douglas, third earl of Douglas, under the terms of the entail of 1342. The man most directly threatened by Margaret’s ambitions in this regard was James Douglas of Dalkeith, who had claimed the bulk of the unentailed Douglas lordships in the south of the kingdom, including Liddesdale, in 1388‒9. In 1397 Countess Margaret and her son concluded a series of agreements with the heirs general of the 2nd earl of Douglas whose claims had been swept aside by Archibald Douglas and Douglas of Dalkeith. Thus the rights of the childless Isabella, sister of the second earl, and Sir James Sandilands of Calder, nephew of William, first earl of Douglas, eventually became vested in Margaret’s son, sparking a major confrontation with Douglas of Dalkeith.39 The position of Margaret’s Angus inheritance was the most easily and swiftly resolved of these issues, with the countess obtaining formal recognition of the right of her son to inherit her Angus lands and titles during the sitting of a general council in Edinburgh which ran from 29 March to 10 April 1389. On 8 April, at Edinburgh, Margaret issued a charter of lands in the barony of Kirriemuir to Sir Richard Comyn for his ‘good counsel and service’. The charter, uniquely for Margaret, was said to have been issued ‘ex deliberato consilio’ (‘by the deliberation of [our] council’).40 If the countess’ ‘council’ was reflected in the witnesses to the charter then the group was composed of Margaret’s three Sinclair half-brothers, John, James and Walter, her illegitimate half-brother William Stewart (collectively described as ‘our dearest brothers’), Sir William Borthwick (of Catcune) and Sir John Liddale.41 It seems likely that the grant was related to Comyn’s support or help in arranging the events of the following day (9 April) when, in full parliament at the monastery of Holyrood, the countess resigned the earldom of Angus and the lordships of Abernethy and Bunkle into the king’s hands in favour of her son George and his heirs, whom failing the heirs of Elizabeth, Margaret’s sister, and her husband Sir Alexander Hamilton. George’s right to succeed to his mother’s titles was thus officially acknowledged, removing the threat that his illegitimacy might be used by others after Margaret’s death to argue against his succession to her lands and rights. On 10 April the king confirmed the succession arrangements with a charter under the great seal, 39 For this, see Brown, Black Douglases, ch. 4. 40 Fraser, Douglas Book, iii, 33‒4 (no. 41). 41 Probably the same John Liddale who received a grant from Margaret, in the period 1378‒82, of the lands of Balmuir in the lordship of Strathdichty and barony of Kirriemuir: NRS, GD 121⁄3⁄21.

Earls of Douglas

Archibald ‘the Grim’, 3rd earl of Douglas

James, lord of Douglas (k.1330)

James, 2nd earl of Douglas and Mar (k.1388)

Eleanor = James Douglas Sandilands

Earls of Angus

George Douglas, earl of Angus (d.c.1403)

Figure 2.2 The Douglas inheritance, 1388–c.1400.

Isabella Douglas, = Malcolm countess of Mar Drummond, lord of Mar (d.1408) (d.1402⁄3)

Margaret of Mar = William, 1st earl = Margaret Stewart, countess of Angus of Douglas and (d.c.1418) Mar (d.1384)

James Sandilands of Calder

Douglases of Dalkeith

James Douglas, lord of Dalkeith

John Douglas

James ‘of Lothian’

William Douglas

William, lord of Douglas (d.1299)

Archibald, lord of Liddesdale

Andrew Douglas

William Douglas (d.c.1274)

Archibald, lord of Douglas (d.c.1240)

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which also made clear that the countess was actually to retain lifetime possession of all the estates and rights to which her son was now the acknowledged heir.42 Following the events of 1389 there is something of a lacuna in evidence relating to Margaret’s affairs, until the spring and early summer of 1397 when the countess and her son re-emerged on the national scene. In the interim some important aspects of her life had changed. She was still apparently based in East Lothian, but she no longer had possession of Tantallon. During 1397, she concluded agreements in her half-brother’s more modest castle at Herdmanston and then, latterly, she was to be found in the presumably even more humble surroundings of the manor of Begbie ‘next to’ Herdmanston.43 The identity of the occupiers of Tantallon, presumably holding from the earl of Fife, is mysterious, although the castle would certainly return to the possession of George Douglas’ heirs in the fifteenth century. The first of a series of agreements concluded by Margaret in 1397 with Sir James Sandilands of Calder included the striking stipulation that the countess and her son should have a five-year lease of Sandilands’ castle of Calder (Midlothian), with his rights to pasturage for the household’s horses in the summer and peat and other fuel during the winter.44 It would seem that the countess was experiencing difficulty in obtaining accommodation that befitted her social status and the needs of her household. Most dowagers would have been accommodated in one of their departed spouse’s residences, but Margaret had made a decisive break from Mar shortly after Earl Thomas’ death and had shown no inclination or ability to return to the north-east. Indeed, as we shall see, it is unclear what personal benefit Margaret derived from her claims to her widow’s portion in Mar after the death of James, 2nd earl of Douglas and Mar in 1388, first through the failure of the heirs to the earldom to hand over the full rents due from her terce lands, and then the use of her claims there as a bargaining chip to obtain concessions in other areas of the kingdom for her son and his heirs. 42 RPS, 1389⁄3⁄18. On the same day the king ratified an undated charter by Margaret, countess of Angus and Mar, in favour of her sister and Alexander Hamilton of the lordship of Innerwick and lands in the lordship of Abernethy – obviously compensation for Elizabeth’s resignation of her wider potential claims as co-heiress and her willingness to accept a place in the succession to Angus behind her illegitimate nephew. The charter was probably issued during, or shortly before, the April general council. The witnesses included Robert, earl of Fife; George Dunbar, earl of March; John Dunbar, earl of Moray; John, James and William (recte Walter) Sinclair; and Alan of Lauder (perhaps indicating the charter was issued from Tantallon): NRS, GD90⁄1⁄30, RH6⁄195; AB Ill., iv, 161‒2. 43 A notarial instrument was drawn up at the manor at the instance of Countess Margaret in 1408: Fraser, Douglas Book, iii, 44‒6 (no. 51). This might suggest that Countess Margaret’s charter chest was at that location. 44 Fraser, Douglas Book, iii, 37‒8 (no. 44). There is no evidence to suggest one way or another whether the countess and her son actually occupied Calder in the period 1397‒1402.

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The sequence of agreements concluded by Countess Margaret in AprilMay 1397 had the overall effect of making her son a claimant to all the unentailed Douglas properties that had once been held by the first and second earls of Douglas, George’s father and half-brother. The settlement set George on a collision course with James Douglas of Dalkeith; in 1397‒8 a fierce feud developed between the two men and their adherents in which, once again, George was almost entirely dependent on the support of his maternal relations. Certainly George’s Sinclair uncles and cousins took the lead in a series of raids against Douglas of Dalkeith’s lands in Lothian and the borders during 1397 and 1398.45 At this time, George began to appear alongside his mother in order to give his formal assent to the deals made. Thus an indenture of 27 April 1397, finalised at Herdmanston, was said to be ‘betwix a nobil ladi, Mergaret countas of Marr and Angous and George Douglas, hir sone, lorde of Angus’ on the one hand and ‘his cosyn Scir Jamys of Sandilands, lord of Caldore’ on the other. George had no seal of his own and employed ‘the seal of the ladi his modir’ to indicate his commitment to the terms, but the young lord was clearly beginning to take an active role in the management of his own affairs.46 In the following month, on 15 May, George concluded another agreement with Sandilands at Herdmanston, without his mother’s recorded involvement.47 Some nine days after this indenture, Countess Margaret concluded a marriage agreement with Robert III in Edinburgh by which George ‘lord’ of Angus was to wed a daughter of the king. Robert agreed to give to George and his daughter, and their heirs male, regality powers over their lands in Angus, Abernethy and Bunkle. The royal match was both a triumph for Margaret in terms of securing her son’s position and status in the realm, and 45 For the details see Brown, Black Douglases, ch. 4; Boardman, Early Stewart Kings, 204‒5. NLS, Morton Cartulary, MS 72, fos 33r.–v., 34r., 36r., 37r., 39r.–v., lists men who participated in raids against various Dalkeith properties in 1397‒8 in support of George Douglas. The roll call is dominated by George’s maternal uncles and cousins from the Sinclair of Herdmanston family, another maternal uncle in the shape of the illegitimate William Stewart of Angus, and a more distant but powerful maternal kinsman, Henry Sinclair, earl of Orkney and lord of Roslin. 46 Fraser, Douglas Book, iii, 37‒8 (no. 44); 49‒50 (no. 55), for George, earl of Angus, again using his mother’s seal to attest another (undated) agreement with Sandilands. George promised that as soon as he had a seal made he would attest the obligation with it. 47 Fraser, Douglas Book, iii, 39‒40 (no. 46). In the indenture as given, Sandilands referred to George as ‘earl’ rather than ‘lord’ of Douglas, but the original obligation is only known through its incorporation in a royal confirmation of November 1397, by which stage George was definitely using the style earl of Angus. It seems likely that his title was updated in the November confirmation. The witnesses display the continuity from the Douglas affinity of the 1380s: John Sinclair, lord of Herdmanston, William Abernethy, lord of Saltoun, William of Borthwick, lord of Legertwood, James and Walter Sinclair, William Stewart of Angus and John Liddale.

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a further step in the gradual erosion of her control over the fate and direction of the Angus lordships, since it was another marker of George’s emergence into adulthood.48 By 9 November 1397 George had married Princess Mary Stewart and adopted the style earl, rather than lord, of Angus, indicating that he had assumed full responsibility for his lordship and was no longer exercising authority through, or in collaboration with, his mother.49 In the same period he was personally involved in the violence directed against his rival James Douglas of Dalkeith over the winter of 1397‒8, establishing his credentials as the military leader of his affinity.

VII In 1399 Earl George began to display an interest in his mother’s rights as dowager countess of Mar, although not necessarily with the intention of benefiting her. Mar had fallen, on the death of Earl James in 1388, to James’ sister Isabella and her husband Malcolm Drummond (who was using the courtesy title, Lord of Mar, by 1393). An indenture of 7 March 1399 between George earl of Angus and Drummond (styled lord of Mar and Garioch) made it clear that considerable ‘rerage’ (arrears) was owed from the third of Mar and Garioch, Strathalva, Clova in Angus and the barony of Melginch that ‘pertain to ane reverend lady dame mergeret cowntes of Angus and of Marr’. Angus suggested he would make Drummond quit of the sums he owed to Margaret, and also assign over to Malcolm Margaret’s ongoing rights to these estates. In return Malcolm would give over to Angus his claims to the contested lordship of Liddesdale, giving Earl George an immediate right to attempt to oust Douglas of Dalkeith from the territory. George was to obtain confirmation of the deal from his mother ‘in wyrt ondyr the cowntas’ sele’ before the following Whitsunday, although the possibility was acknowledged that ‘the forsaid lady his [Angus’] moder wil nocht assent to this conand [covenant, compact]’. If it happened that George died before his mother (as, indeed, later occurred) then ‘it sall be at the forsaid cowntess’ will qwether thait scho will hald thir conandis forsaidand made [i.e. these covenants made as is aforesaid] or hafe regress till hir thryddis forsaid’. If Countess Margaret was not prepared to waive the money owed to her, then Angus agreed to compensate his mother ‘of his awn gudis’, and specifically from the arrears of the rents of Liddesdale that he hoped to recover from Sir James Douglas of Dalkeith.50 The deal certainly went ahead, for on 19 April 1400 Drummond issued a charter from Kildrummy in favour of George Douglas, earl of Angus, 48 Fraser, Douglas Book, iii, 38‒9 (no. 45). 49 Fraser, Douglas Book, iii, 40‒1 (no. 47); 41‒2 (no. 48); NRS, Mar and Kellie papers, GD124⁄1⁄421. 50 NRS, Mar and Kellie papers, GD124⁄1⁄120.

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of the lands of Liddesdale in exchange for the third of Mar and other lordships that belonged to Margaret Stewart, George’s mother, as the widow of Thomas of Mar.51 Whether Margaret insisted on compensation for the trading away of her terce rights by her son is unknown. While the arrangement between Angus and Drummond could be seen as displaying a cynical disregard for Margaret’s privileges, the complexity of the original proposed agreement with its multiple scenarios reflected the fact that both parties recognised the possibility that the dowager Countess of Mar could withhold approval for all or part of the deal, and in that sense her rights and opinions were respected throughout. It may be that she was willing to forgo part or all of the sums she was owed as an investment in the future of the lineage she had effectively founded. Certainly in an undated assignation of a £5 annuity to one Patrick Lindsay, probably issued shortly after her son’s death in c.1403 and before tutors had been appointed for his children, the probably fifty-year-old Margaret displayed a sense of having made deliberate sacrifices for the well-being of George and his heirs and an expectation that, because of that, those heirs, or those charged with supervising their affairs, should show consideration for her wishes in terms of honouring the terms of the gift even after her death. In a touching way she assured Lindsay that: quhat tyme at that thar be tutoris ordanyt for the barnys of our sone of Angous that we sal ger thaim conferme this our gift forsayd and the barnys gif we lyf till thai cum to perfyt eylde, and if we die with this thing unconfirmed we bid and charge the heirs of our said son of Angous and the tutouris whoever they be they shall not disturb Patrick in our gift forsaid sen it is anerly done for thair profyte and at thai will haf in mynde how we made our lyffyng les in our tyme for lestand profit to thaim.52

It may partly have been the fate of her terce lands that Margaret had in mind when she claimed that her own ‘lyffyng’ had been diminished in order to secure lasting profit for her grandchildren, but it also seems a more general comment on the way she had conducted her affairs over her long career. Her tone was not one of complaint or resentment, but of pride in the efforts she had made.

VIII Margaret received a bitter blow in 1402‒3 with the death of her son George in English captivity following his capture at the battle of Humbleton Hill in September 1402. Bower claimed that George succumbed to the plague while a captive. This is curiously reminiscent of the fate of George’s grandfather, 51 Fraser, Douglas Book, iii, 44‒6 (no. 51). 52 RMS, ii, no. 195.

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Thomas Stewart, earl of Angus. Bower’s list of Scottish knights captured at Humbleton included a number of men who were probably in George’s company, including his cousin, William Sinclair of Herdmanston, his uncles James Sinclair of Longformacus (and James’ son) and Sir William Stewart of Angus.53 George left two infant children by his royal bride, a son William, who would eventually succeed to the earldom of Angus, and a daughter Elizabeth. If Margaret was initially uncertain about who might be appointed to look after her grandchildren, she may well have been gratified that the right eventually fell to her nephew William Sinclair of Herdmanston.54 The children were presumably initially raised in Sinclair’s residence, with their grandmother conveniently located in the adjacent manor of Begbie. One of the social roles expected of female aristocrats was the identification of suitable marriage partners for dependent children, and Margaret was clearly the driving force in the search for spouses for William and Elizabeth. By 1409 Margaret and her kinsmen had settled on a match for the heir to the earldom and his sister. On 4 December 1409, at Herdmanston, Henry Sinclair, earl of Orkney, and William Sinclair of Herdmanston, gave their obligation to Sir William Hay of Lochariot (later Yester) on behalf of Countess Margaret that they would refund £100 scots to Sir William if the contract of marriage between William of Douglas, earl of Angus, and one of Hay’s daughters was never realised because of the earl’s death. The following December Countess Margaret acknowledged receipt of the payment of £100 from Sir William Hay for the marriage of her son’s son, grandly styled ‘Eryl of Anguse and Larde of Ledalysdale’.55 Margaret is known to have died sometime before 23 March 1418.56 The last references we have to her activities come from late 1415 and early 1416: at this stage she was probably in her early sixties and involved in a dispute with the prior of the cathedral church of Durham over lands in Berwickshire claimed by Durham’s dependent priory at Coldingham. Her final known charter as Margaret, countess of Angus and Mar restored the disputed lands to Durham; it was issued on 4 January 1416 from the little manor at ‘Bagby iuxta Hyrdemanstone’, where she had lived since at least November 1408.57 The seal she attached to the document is known from surviving examples, and from a detailed notarial description dating to 11 September 1409. It depicted, as was entirely conventional, a standing female figure with her hands resting on two shields. The figure’s right hand touched a shield bearing 53 Chron. Bower (Watt), viii, 48‒9. 54 Calendar of Papal Letters to Scotland of Benedict XIII of Avignon, 1394‒1419, ed. F. McGurk (SHS, 1976), 35, 187‒8. 55 Calendar of Writs Preserved at Yester House, 1166‒1625, eds Charles C. H. Harvey and John Macleod (SRS, 1930), nos 45, 46. 56 Fraser, Douglas Book, iii, 50‒1 (no. 56). 57 AB Ill., iv, 732‒4; Fraser, Douglas Book, iii, 44‒6 (no. 51).

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the arms of the earldom of Mar, the lordship of Margaret’s first husband, depicting her status as dowager countess of one of the kingdom’s great provincial lordships. Her left hand rested on a shield bearing the Stewart fess cheque with a bend and three buckles, the arms of her paternal family the Stewarts of Bunkle. The legend proclaimed that the seal was that of ‘Mergarete Senescalli, comitisse de Marr’.58 The symbolism of the seal reflects a certain understanding of the role and duties of a medieval noblewoman, standing between the coats of arms of the two patrilines, the marital and paternal houses, that she supposedly linked. In Margaret’s case the image was utterly deceptive and unrelated to the reality of the social and political networks in and through which she lived her life. To her, the earldom of Mar was a briefly visited and alien province with which she had next to no direct dealings in the four decades that followed the end of her childless marriage. The Stewarts of Angus were effectively an extinct lineage before Margaret reached her tenth birthday. Margaret’s real friends, allies and partakers were provided instead by her mother’s kin, the brood of watchful half brothers and their sons, and the affinity of her Douglas lover. Her world revolved around Haddington and Herdmanston and the lairdly community of East Lothian. The hardened shields in cold wax were empty expressions of a largely formal status.

58 Henry Laing, Descriptive Catalogue of Impressions from Ancient Scottish Seals (Bannatyne Club, 1850), 131 (no. 792); Fraser, Douglas Book, iii, 49‒50 (no. 55). Laing gives the legend as ‘S’MARGUERITE LE SENESCHALLE CONTESSE DE MARRE’.

chapter 3

Bastard Feudalism in England in the Fourteenth Century CHRISTINE CARPENTER Jenny Wormald has written with distinction on lordship, service and governance in late medieval Scotland. This is a contribution to the same subjects in the kingdom on the other side of the border.1 It addresses, at times speculatively, a conundrum that has of late become increasingly evident: if, as has been assumed, bastard feudalism in the fourteenth century was the same as in the fifteenth, why does it look so different in many ways?2

I It is necessary to begin with a summary of our present understanding of bastard feudalism in the fifteenth century. The fons et origo is K. B. McFarlane and his revolutionary rejection of the Plummer/Stubbs view that this was, as the name suggests, a debased form of feudalism. Thus, bastard feudalism did not replace a legitimate and permanent bond, based on land, with an illegitimate and inherently unstable one, based on money, contract and mutual advantage, thereby undermining government and society and encouraging terrible violence which culminated in the Wars of the Roses. Rather, it filled a gap left by the decline of feudalism. At first McFarlane still accepted the prevailing opinion that linked the emergence of bastard feudalism to the king’s military needs. But, for him, it was not the case that the requirements of the French wars gave birth to the military contract and all its alleged evils; rather, the decline of the feudal host necessitated the recruitment of armies in a new way: the contract. However, well before his death, he had realised that we need to think of bastard feudalism not as a by-product of military 11 I am most grateful to Andrew Spencer for his helpful comments on this chapter in draft form. 12 Historians of the thirteenth century, who have taken up this subject more recently, are also assuming the same model. See notably P. R. Coss, ‘Bastard feudalism revised’, Past and Present 125 (November 1989), 27‒64, and David Crouch, D. A. Carpenter and P. R. Coss, ‘Debate: bastard feudalism revised’, Past and Present 131 (May 1991), 165‒203.

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needs but (to use George Holmes’ apposite phrase) as ‘part of the normal fabric of society’.3 Building on McFarlane’s work, especially as more of it began to come into print, historians of bastard feudalism, working initially on noble followings and then increasingly on the localities, where its normal operation lay, came to a clear understanding of the system in its mature form.4 Much of this confirmed or amplified McFarlane’s own insights. Just like feudalism, bastard feudalism was a perfectly respectable tie, binding lesser to greater landowners, as feudalism had done. Like feudalism, it was highly localised, and nobles normally recruited their followers in the geographical vicinity of their main estates. Accordingly, a lord’s followers were not low-class household retainers with a propensity for violence but members of the local gentry, and they were not normally recruited in war. In fact, in the fifteenth century, with the exception of one or two nobles who have proved to be unusual, there was very little overlap between war and peace retinues. Moreover, as one would expect from a relationship based on geographical proximity rather than wartime need, it often had a high degree of permanence and stability, even across generations and across changes in the tenure of the noble estate. Men who served more than one lord tended either to be associated with lords who were themselves linked in local politics or – notably lawyers – who were offering professional services. All this has entailed drawing a clear distinction between a lord’s household menials and his gentry followers. The latter might have close or more distant relations with their lord’s household, depending on whether they held an office with him, but they would normally be resident on their own estates in the neighbourhood of one of the lord’s residences. It was these followers who, with men drawn from the tenantry on their own estates, would furnish the greater part of a lord’s retinue if he wished to make a show of any sort, just as had been the case in the days when a lord summoned the knights who were 13 K. B. McFarlane, England in the Fifteenth Century, ed. G. L. Harriss (London, 1981), especially McFarlane, ‘Bastard feudalism’, 23‒43, and Harriss, ‘Introduction’, pp. ix– xxvii; Christine Carpenter, ‘Political and constitutional history: before and after McFarlane’, in R. H. Britnell and A. J. Pollard (eds), The McFarlane Legacy (Stroud, 1995), 175‒206; George Holmes, The Later Middle Ages, 1272‒1485 (2nd edn, London, 1970), 167. 14 For this and the paragraph that follows, see the following summaries, which are also guides to further literature: G. L. Harriss, ‘The dimensions of politics’, in Britnell and Pollard (eds), McFarlane Legacy, 1‒20; G. L. Harriss, Shaping the Nation: England, 1360‒1461 (Oxford, 2005), chs 4‒6; Michael Hicks, Bastard Feudalism (London, 1995); Christine Carpenter, The Wars of the Roses (Cambridge, 1997), chs 2 and 3. The universality of noble leadership in the shires is debated but there is agreement on the localisation of local administration and justice, and on noble embeddedness in local society and office-holding when the lord did lead: Christine Carpenter, ‘Gentry and community in medieval England’, Journal of British Studies 33 (1994), 340‒80.

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his feudal tenants to come accompanied by their men. The change of emphasis in the historiography from unstable military and household retinue to stable local gentry following has also made historians realise that the indenture of retainder that was formerly placed at the heart of the relationship was probably more the exception than the rule. Thus, gentry were connected to lords by a variety of means, some more formal than others. Some followers were no more than what was known as ‘well-willers’. The fee that might be part of this relationship was normally not large relative to the recipient’s income and nobles mostly spent fairly frugally on them. For all these reasons, historians now prefer to call a late medieval noble’s following his affinity rather than his retinue. We can sum all this up by saying that it has been realised that bastard feudalism should not be regarded as an institution with specific causes and characteristics. As it happens, the historians of the post-Conquest period have been concurrently coming to the same conclusion with regard to ‘feudalism’.5 Both are merely shorthand for complex structures of social and political relationships. The work on local landed societies, especially through intensive use of legal records and deed evidence, two sources that came into their own with these studies, has enabled us to reach a sophisticated understanding of how these functioned in the fifteenth century and the role that the nobility and bastard feudalism played within them. It is now understood that the lord’s main role for the members of his affinity was to help them in the protection of their estates. This was effected by putting the weight of the lord and the affinity behind the various transactions that secured the gentry’s property, marriage settlements, post-mortem transmission and so on; behind arbitrations that prevented disputes reaching the courts or, once they did, got them privately settled; and, if all else failed, behind the pursuit of land claims through law or outside the law. The affinity in turn served the lord directly in various ways but its major role was to make him the key figure in the management of the locality on the king’s behalf. This was achieved by gentry followers taking on some of the major local offices and, if enforcement was required, by placing the local manpower that came from their own lordship over their peasant tenants at the lord’s disposal, to add to the force he raised from his own tenantry. It is this mutuality of reciprocal needs and obligations, between lord and gentry follower, and king and lord, that in many ways lies at the heart of the relationship by this period. This tripartite symbiotic arrangement meant that the noble achieved the greatness that he expected in the areas where his main estates lay (his ‘country’), the gentry got their protection, and the king’s government was carried on, by this time with a remarkable depth and reach. It is therefore now understood that, far from 15 See for example Judith A. Green, The Aristocracy of Norman England (Cambridge, 1997), ch. 7.

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making a crude distinction, as used to be done, between royal power in the shires (good) and magnate power (bad), we need to accept that the public power of the crown in the fifteenth century rested on the private power and private relationships of nobles and gentry and that neither public nor private power could function without the other.

II The problem is that it is becoming increasingly unclear that we should attribute these same features to bastard feudalism in the century before. Certainly, for a long time the fourteenth century was regarded as quite as much a McFarlane century as the fifteenth: these had been the Cinderella centuries, both of them dismissed as of no interest to serious scholars, other than as the crucible of parliament, their politics as unrespectable as their nobles and most of their kings. Both centuries were rescued and given the possibility of a serious political history by McFarlane. His Ford lectures of 1953 took 1290 as their starting date, and the lecture on ‘service, maintenance and politics’, although its evidence leans heavily towards the fifteenth century, assumes a similar pattern throughout the period.6 The first two major schoolof-McFarlane studies to be published were of key nobles under Edward II: Maddicott’s Thomas of Lancaster and Phillips’ Aymer de Valence Earl of Pembroke, both from the early 1970s. Both took the same view of the role of bastard feudalism as would have been held at that time by a fifteenth-century historian. This was that a lord’s political following comprised an affinity located in the areas of his principal estates; that his good lordship offered preferment and protection; and that much of this was effected by the possibilities for influencing and controlling local officers, and by the ability to raise a local force, for aggressive or defensive purposes, which his affinity gave him. Members of the affinity, for their part, were an adjunct to the lord’s local and national political power, and the local pressure on the law and its officers that could be exerted via the affinity might equally be exerted to the lord’s benefit. Maddicott, while acknowledging that there were fewer ‘blatant examples of bribery and corruption of sheriffs, jurors, and justices’ under Edward II than the fifteenth-century Paston letters reveal, stated that ‘there is little doubt that Lancaster exercised his influence over royal justice and administration in his own lands in much the same way as did the Dukes of Norfolk and Suffolk in the East Anglia of the 1440s’. Conversely Phillips attributed Pembroke’s failure to use retainder to create a strong local power base to the fact that ‘it is possible in some way Pembroke remained an outsider in English society’ because of his strong links to the Continent. Pembroke was therefore 16 Published twenty years later as K .B. McFarlane, The Nobility of Later Medieval England (Oxford, 1973), 102‒21.

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judged to be in some respects an exception to the ‘bastard feudal’ norm exemplified by Lancaster.7 There seemed every reason to make these assumptions from the wave of noble and local studies that began to appear in thesis form and in print under the inspiration of McFarlane, of which these two were pioneering examples. As had long been understood, for this kind of pressure on the local administration of the law and peacekeeping to be possible, there had to have been a change from the centralised, king-focused rule of the localities, which essentially characterised the twelfth and thirteenth centuries, to a localist one. Once this had occurred, the local gentry, the quintessential ‘local amateurs’, administered the shires, largely unsupervised by central royal commissions. It was indeed this change, seen as deleterious to local rule and local order, that had underpinned much of the older account of bastard feudalism, in the version of medieval English history which, as McFarlane put it, had been written by ‘King’s Friends’.8 It was generally considered that this process was complete in some respects and well under way in others by the time of Edward II. The decline of the great curial sheriff and his replacement by a lesser and local figure began under Henry III and had been more or less completed by the end of the thirteenth century.9 The last full eyre was abandoned in 1294. The replacement of its successor experimental centralised commissions, such as trailbaston and the itinerant King’s Bench, by the justices of the peace (JPs), although in train by 1307, took longer. Putnam, the seminal historian of the JP, had declared that this process had its more or less final act in the statute of 1361, ‘which gave statutory sanction … for the transformation of keepers into justices’.10 Historians pursuing local studies realised the enormous importance of these two officers: the sheriff as the local enforcer of the writs that set in motion the royal courts at Westminster, which now heard so much of the gentry’s legal business, and the JPs, as the men who could enable or disable the first stage of a crown plea, by accepting or rejecting a bill placed 17 J. R. Maddicott, Thomas of Lancaster, 1307‒1322 (Oxford, 1970), 49; J. R .S. Phillips, Aymer de Valence Earl of Pembroke, 1307‒1324 (Oxford, 1972), 271; also 258‒9. Similarly, Richard W. Kaueper, ‘Law and order in fourteenth-century England: the evidence of special commissions of oyer and terminer’, Speculum 54 (1979), 734‒84, at p. 751. 18 McFarlane, Nobility, 2‒3; quotation at p. 2. 19 W. A. Morris, The Medieval English Sheriff to 1300 (Manchester, 1927), 166‒7; Helen M. Cam, ‘Cambridgeshire sheriffs in the thirteenth century’, in Cam, Liberties and Communities in Medieval England (London, 1963), 36‒48; more recently, D. A. Carpenter, ‘The decline of the curial sheriff in England, 1194‒1258’, in Carpenter, The Reign of Henry III (London, 1996), 151‒82. 10 Bertha Haven Putnam (ed.), Proceedings before the Justices of the Peace in the Fourteenth and Fifteenth Centuries (The Ames Foundation, 1938), xxxvi–xlviii, lix–lxiii; quotation at p. xlv. She did recognise that the process was not yet entirely complete (see below, notes 21 and 23).

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before them to be heard by a jury. Fifteenth-century studies of the localities and of individual disputes were showing how much it mattered to both parties in a gentry dispute that they should be able to rely on a sympathetic sheriff and commission of the peace, and how much could be lost when they could not.11 It therefore seemed reasonable to assume that this was the case for most of the second half of the fourteenth century, and to a degree for the whole of the century, despite what was known of the periodic attempts to revive some sort of centralised system for bringing justice and order to the shires up to 1361.

III As this summary indicates, the study of fifteenth-century bastard feudalism has shown the necessity of exploring both the private relationship – its nature, extent and function – and the public system of local rule within which it operated and of which it was an essential part. It is in fact recent study of local government in the fourteenth century that has begun to cast serious doubt on the appropriateness of the later model for this period. To begin with the sheriffs of the first six or seven decades of the fourteenth century, it is true that they were mostly local, in that they were not curialists and they had landed interests in the counties where they served, as sheriffs were obliged to have by this time, though there was no specific qualification until 1371.12 However, closer examination is now suggesting that we should be wary of thinking of either the sheriffs or the other local men appointed to office at this time as ‘amateurs’ drawn from the leading local gentry. Quite a few of the local officers were not of the first rank tenurially or socially speaking, and the sheriffs, as a group, despite individual exceptions, were significantly lower in rank and tenure than those of the following century. Moreover, the sheriffs, like many other local officers, including even those from the local elite, tended to be almost professional in the frequency with which they were appointed to a variety of local employments. To add to the aura of professionalism, several of these frequent officers were lawyers or administrators, working for local nobles or even the king. Some in fact came into royal service after starting in the shires and were perhaps drawn to the king’s attention by their excellence as local officers.13 It is well known that, although there was 11 See note 4 for guides to the literature on localities and on individual disputes. 12 Richard Gorski, The Fourteenth-Century Sheriff (Woodbridge, 2003), passim and at 68‒9 for the property qualification; William A. Morris, ‘The sheriff ’, in Morris and Joseph R. Strayer (eds), The English Government at Work, 1327‒1336, ii, Fiscal Administration (Mediaeval Academy of America, 1947), 48; PROME, ii, 308, item 39. 13 Morris, ‘The sheriff ’, 50‒3; Nigel Saul, Knights and Esquires: The Gloucestershire Gentry in the Fourteenth Century (Oxford, 1981), 117‒18, 156‒7; Anthony Musson

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legislation in 1340 that sheriffs were to be replaced annually, subsequently re-enacted more than once, the practice did not become the norm until after the statute of 1371. Might this be less that kings were routinely ignoring the legislation because it suited them to do so than that the expertise was simply not widely enough available?14 To be effective, a sheriff had to be able to read and write in Latin and to have a basic familiarity with writs and accounts; someone who had to rely on the probity of his staff could be at a serious disadvantage, and a king could not rely on such a sheriff.15 It is striking, judging by the names in a list of Warwickshire officers between 1290 and 1348, how many families seem to be effectively hereditary office-holders, a circumstance one might attribute to the necessary skills being fairly rare and passed down within families.16 In fact, such work as has been done on local officers in general under the first three Edwards up to the 1370s suggests that there was quite a small core, a few of these of greater tenurial status and several who were not. To take Saul’s figures for Gloucestershire, for example: from the 1290s to the early 1330s up to seven men ‘bore the brunt of county administration’, accompanied by some lesser men whose service was not confined to Gloucestershire. Similarly in Warwickshire between 1310 and 1320 just ten men acted as officers three times or more and this had hardly changed between 1338 and 1348, when the number was eleven. By 1350, the core group of officers in Gloucestershire was barely larger, but fewer of them served outside the county and it was now very rare for a man with no links to the county to hold a local office. Moreover the group of local men who served as officers was beginning to grow larger, a development to be expected in the post-Black Death period with the increasing size of the commission of the peace, the emergence of justices of labourers and the king’s continuing needs for the Hundred Years War. So the Gloucestershire officer elite was now accompanied by a number of lesser, purely local, men.17 Enlargement and social

14 15 16 17

and W. M. Ormrod, The Evolution of English Justice: Law, Politics and Society in the Fourteenth Century (Basingstoke and London, 1999), 70; Anthony Musson, Public Order and Law Enforcement: The Local Administration of Criminal Justice, 1294‒1350 (Woodbridge, 1996), chs 6 and 7; Peter Coss, The Origins of the English Gentry (Cambridge, 2003), ch. 7 (but his distinction between knights and professionals is too sharp); Gorski, Fourteenth-Century Sheriff, 69‒78 (emphasises diversity, but most of his examples of sheriffs of lower status come from c.1300‒50). Saul, Knights and Esquires, 110‒11; Gorski, Fourteenth-Century Sheriff, 41‒2. For the office and duties, see Morris, ‘The sheriff ’ and Musson, Public Order, 150‒3. For the advantages to the crown of long service and repeat appointments, see Gorski, Fourteenth-Century Sheriff, 38, 57‒8. Coss, Origins, Appendix V, using a list supplied by R. Gorski. Also Musson, Public Order, 140‒4. Saul, Knights and Esquires, 161‒2; Coss, Origins, Appendix V, excluding non-Warwickshire

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diversification of the officer class beyond the core group are noted slightly earlier in Coss’ survey of Warwickshire officers in the first half of the fourteenth century. Gorski does not disaggregate his figures for sheriffs in the period 1350‒71 but he shows how dramatic the change was thereafter, when he comments that ‘several [official] elites were blown wide open’.18 In sum, over the course of the century, as education and legal training became more widely distributed among the gentry, even if often only to the level that would enable them to make use of the law themselves, so the group of local men who could take office began to expand. It is only then that we can begin to think of local office as something that the local gentry, as a body, might aspire to.19 More alarmingly still, from the perspective of bastard feudalism in the fourteenth century, it has become clear that we need to rewrite Putnam’s history of the JPs.20 Thanks to Musson and Verduyn, it is now well known that what occurred in the first decades of the century was not a straightforward tussle fought out in parliament, between crown and localities, the former espousing centralised commissions, including assizes and gaol delivery, the latter the commission of the peace. We now appreciate that there was plentiful overlap in personnel between the different types of commission and that many of the various experiments in policing and judicial supervision had less to do with a tug-of-war between crown and parliamentary Commons and more with the needs of the moment; often, especially under Edward III, these were military needs. Even before this work, Powell had shown that the role of the assize justices, before and after the magic date of 1361, was not to control the JPs on the crown’s behalf but to integrate them into a judicial system that had become both centralised and professionalised. Thus, the power to determine felony, which had been fetishised by Putnam in her men acting on joint commissions etc. (in each selected period, a small number of men at either the beginning or end of an extended official career did not make the cut); Musson, Public Order, 93‒4. 18 Coss, Origins, ch. 7, esp. 200‒1; Gorski, Fourteenth-Century Sheriff, 44‒57 (quotation at p. 45); also Saul, Knights and Esquires, 162 (but see at p. 116 for a measure of reappointment to the shrievalty post-1371). 19 There is no account of gentry education and literacy in the fourteenth century but strong indicators are the greater availability of legal education and training, the growth of law and administration as routes into the gentry, and the increasing number of surviving texts in English rather than French: see Coss, Origins, 244‒8; Peter Coss, The Foundations of Gentry Life: The Multons of Frampton and their World, 1270-1370 (Oxford, 2010), ch. 11; Michael J. Bennett, Community, Class and Careerism: Lancashire and Cheshire in the Age of Sir Gawain and the Green Knight (Cambridge, 1983), 195‒ 203; Harriss, Shaping the Nation, 156‒7; Maurice Keen, English Society in the Later Middle Ages, 1348‒1500 (London, 1990), 225, 237; Musson, Public Order, 136‒44. 20 For a summary of what follows on JPs, see Christine Carpenter, ‘War, government and governance in England in the later middle ages’, in Linda Clark (ed.), Conflict, Consequences and the Crown in the Late Middle Ages, The Fifteenth Century 7 (2007), 16‒21.

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account of the rise of the JP, was not a mark of local independence but a matter of making sure that no one was hanged after improper administration of the law. Accordingly, JPs’ acquisition of this power on a permanent basis went along with the creation of the quorum, which in practice meant that JPs did not try felonies without the presence of the assize justices, who now doubled as justices of gaol delivery. Often the JPs did not try them at all, leaving it to gaol delivery.21 In any case there was no political significance in the power to try felonies. This was because the pleas that came before JPs arising from conflict among landowners were principally trespass: vi et armis (‘by force and arms’), and the new statutory trespasses.22 Furthermore, the statutory position of the JPs, far from being finalised in 1361, went on developing in important ways until nearly the end of the century. For example, determining powers for felonies were last withdrawn in 1382 and restored in 1389, payments to gentry members of the commission were first made statutory in 1388, and the quorum did not reach its final and permanent form until 1394.23 Membership followed a similar pattern. It was not until the second half of the century that it first began to be routine for local nobles who were not serving abroad to be named to the commission and that the gentry members grew in number – though numbers were still usually small compared with later. And many of the gentry JPs were of the semi-professional officer type that we have touched on already, characterised by Musson as ‘men of law’. Again – leaving aside some exceptionally large commissions issued for exceptional reasons – it was only towards the end of the century that both the size of the commission and the number of JPs who might be termed amateurs, by contrast with the semi-professionals who had hitherto predominated, began to grow.24 21 Putnam (ed.), Proceedings, introduction; Edward Powell, Kingship, Law, and Society: Criminal Justice in the Reign of Henry V (Oxford, 1989), 56‒60; Powell, ‘The administration of criminal justice in late-medieval England: peace sessions and assizes’, in Richard Eales and David Sullivan (eds), The Political Context of Law (London, 1987), 49‒59; Musson and Ormrod, Evolution of English Justice, 47‒8, 51; Anthony Verduyn, ‘The politics of law and order during the early years of Edward III’, EHR 108 (1993), 842‒67. 22 See below for statutory trespass. It is likely that anything concerning landowners serious enough to come to the king’s attention would be handled at this time by special commission or the itinerant King’s Bench, while landowners might themselves use the latter (see Carpenter, ‘War, government and governance’, 19‒20). By the late fourteenth century, it was becoming routine for either defendant or victim to get the case taken into King’s Bench for trial: J. B. Post, ‘Criminals and the Law in the Reign of Richard II’, unpublished DPhil thesis (University of Oxford, 1976), 240; Putnam (ed.), Proceedings, lxiii–iv; Philippa C. Maddern, Violence and Social Order: East Anglia, 1422‒1442 (Oxford, 1992), 44‒7. 23 Putnam (ed.), Proceedings, xxiv–v, xxviii–ix, xc; Powell, Kingship, Law, and Society, 58. 24 Musson and Ormrod, Evolution of English Justice, 69–71, 62–8; Saul, Knights and Esquires, 133–4; W. M. Ormrod, The Reign of Edward III (New Haven, CT and

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As for the business of the commission of the peace, for most of the fourteenth century, it is clear that its real work was to enforce the policing and regulation of the lowest ranks of society that the crown had increasingly assumed, especially since the Statute of Winchester of 1285. The main reason for the enlargement of the commission from 1350 and its afforcement with members of the nobility was the biggest step so far in this: to ensure implementation of the legislation designed to keep the lower classes in check, economically and in other ways, after the Black Death. Indeed JPs had become necessary because since the later thirteenth century, and especially after the Black Death, the crown had taken so much responsibility for policing and regulating at the lowest social levels that these tasks were far beyond the capacity of intermittent commissions sent out from the centre, and required a permanent presence in the localities.25 The JPs’ sessions seem not to have achieved their overriding importance as the court of first instance for nonregulatory business until the later fourteenth century. Although we await a full analysis of the origins of indictments and presentments heard by King’s Bench in the fourteenth century, the evidence suggests that JPs did not play much part in providing these for gaol delivery or King’s Bench until after 1350 and still played only a limited role, if a growing one, towards the end of the century. One reason for this was the availability of procedure by bill before the King’s Bench as long as it continued to itinerate, but much of the business of King’s Bench and gaol delivery still came from the sheriff ’s tourn or private hundreds.26 Furthermore, the statutory trespasses, like forcible entry London, 1990), 110. See also commissions under Edward III in Calendar of Patent Rolls (1343‒77). There were some outsize post-Peasants’ Revolt commissions (Calendar of Patent Rolls, 1381‒5, 84‒6, 244‒55; cf. ibid., 1391‒6, 587‒8) and two very large commissions appointed for gross disorder in Lancashire (see below, at p. 85). For the size of the commission in the fifteenth century, see Susan M. Wright, The Derbyshire Gentry in the Fifteenth Century (Derbyshire Record Society, 8, 1983), 94 and Christine Carpenter, Locality and Polity: A Study of Warwickshire Landed Society, 1401‒1499 (Cambridge, 1992), 268. 25 Helen M. Cam, The Hundred and the Hundred Rolls (London, 1930), Parts III and IV; Helen M. Cam, ‘Shire officials: coroners, constables and bailiffs’, in James F. Willard, William A. Morris et al. (eds), The English Government at Work, 1327‒1336, iii, Local Administration and Justice (Mediaeval Academy of America, 1950), 143‒83; Bertha Haven Putnam, ‘Shire officials: keepers of the peace and justices of the peace’, ibid., 185‒217; Chris Given-Wilson, ‘Service, serfdom and English labour legislation, 1350‒ 1500’, in Anne Curry and Elizabeth Mathew (eds), Concepts and Patterns of Service in the Later Middle Ages, The Fifteenth Century 1 (2000), 21‒37; Musson and Ormrod, Evolution of English Justice, 93‒6. For JPs’ business at this time, see for example Rosamund Sillem (ed.), Some Sessions of the Peace in Lincolnshire, 1360‒1375, Lincoln Record Society 30 (1910), pp. xlv–vi; E. Chapin Furber (ed.), Essex Sessions of the Peace, 1351, 1377‒1379 (Essex Archaeological Society, 1953), 38‒55. 26 J. B. Post, ‘Local jurisdiction and judgment of death’, Criminal Justice History 4 (1983),

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and livery offences, which concerned matters at the heart of disputes among landowners and in local politics, and were to furnish a fair proportion of JPs’ business concerning landowners, did not begin to appear until Richard II’s reign.27 What we know of the commission’s role in local politics in the later fourteenth century, which is not a great deal, seems to endorse the view that their role became significant only at this time. Alison Gundy’s study of the Appellant earl of Warwick shows that, on occasion at least, local nobles, such as Warwick and Gaunt, and some local gentry were making political use of the peace sessions in the west Midlands from the mid-1370s. Richard II had certainly concluded that the sessions throughout England had become a significant locus for the play of local interests when he removed the nobility and some of the local knights and esquires from the commissions in 1389. That he had to restore the nobles the following year, at the request of the Commons, shows how essential noble power had become to local government and peacekeeping by this time. Richard was then to show this understanding in his use of the Worcestershire commission against Warwick in the early 1390s.28 If we examine the other side of the judicial coin, supervision from the centre, we need to remember that powerful centralised commissions of enquiry, including the itineration of the King’s Bench as what Putnam called a ‘superior eyre’, did not end in 1361. These continued off and on in the later years of Edward III and the early years of Richard II. When, in 1387, Richard II used the itinerant King’s Bench to attack the earl of Warwick, it does represent a new dispensation, in which this kind of intervention could be seen as a royal act of aggressive interference in a noble’s country.29 It is therefore of a piece with his changes to the commission of the peace two years later.

1‒21; Simon Walker, ‘Yorkshire justices of the peace, 1389‒1413’, in Walker, Political Culture in Later Medieval England (Manchester, 2006), 105; Musson and Ormrod, Evolution of English Justice, 118‒19. Cf. Maddern, Violence and Social Order, 31. For the itinerant King’s Bench, see text immediately following this note and pp. 83, 88. 27 J. G. Bellamy, Bastard Feudalism and the Law (London, 1989), 19‒20, 21‒2. 28 Alison Gundy, ‘The earl of Warwick and the royal affinity in the politics of the west Midlands, 1389‒99’, in M. A. Hicks (ed.), Revolution and Consumption in Late Medieval England, The Fifteenth Century 2 (2001), 57‒70; A. K. Gundy, Richard II and the Rebel Earl (Cambridge, 2013); R. L. Storey, ‘Liveries and commissions of the peace, 1388‒90’, in F. R. H. Du Boulay and Caroline M. Barron (eds), The Reign of Richard II (London, 1971), 131‒52. 29 W. Mark Ormrod, Edward III (New Haven, CT and London, 2011), 477‒8; Gundy, Richard II and the Rebel Earl; Simon Walker, The Lancastrian Affinity, 1361‒1399 (Oxford, 1990), 227 (similarly aggressive visits of the King’s Bench to the north Midlands in the 1390s against Gaunt).

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IV Broadly speaking, from what we know of noble affinities and local politics in the last three decades of the fourteenth century, if put together with what we now know about local government and law, it seems fair to say that from this time we do have what we might call classical bastard feudalism, as described at the start of this chapter.30 The question is therefore whether we can find bastard feudalism in its quintessential late medieval form between c.1300 and c.1370. We shall begin by looking at the followers of the lords. This is not a straightforward undertaking. First, there seems to be less evidence, while too much of that comes from the rather unrepresentative earls and dukes of Lancaster. Second, until the mid-fourteenth century, perhaps even a little beyond this date, an ‘esquire’ in a lord’s service may be a landowner below a knight, a son of a knight who has yet to be knighted and may not yet have any lands, a landless man-at-arms, or a household servant.31 Third, no historian has yet attempted to trace noble connections in detail through a particular locality in this period. But, even if we must proceed with caution, it is a striking fact that Holmes, whose book on the higher nobility still contains the most thorough general study of noble followings for this century, does not suggest that their ties with the gentry were extensive before the 1370s. It seems that most nobles had only a handful of lesser landowners in their service at this time. Indeed, Holmes’ account of noble followings in this period is reminiscent of what has been written on ‘bastard feudal’ connections in the thirteenth century. As in these studies, he identifies, in most cases, only a small number of followers of the nobility and discusses their service as agents, household officers (some of them clerks), councillors, feoffees and executors, rather than as the lord’s means of influence over local government and landed society.32 A recent addition to the literature, on the affinity of 30 Gundy, Richard II and the Rebel Earl; Martin Cherry, ‘The Courtenay earls of Devon: the formation and disintegration of a late medieval aristocratic affinity’, Southern History 1 (1979), 71‒97; Walker, Lancastrian Affinity (Lancaster’s position, which makes him untypical, need not obscure the essential template, and the discussion of the earls of Stafford reveals a typical affinity in fifteenth-century terms); Christian D. Liddy, The Bishopric of Durham in the Late Middle Ages (Woodbridge, 2008), 79‒92. 31 Saul, Knights and Esquires, 6‒25 for a very useful survey. Also Coss, Origins, ch. 9. As one example, Thomas of Brotherton’s household esquires in 1337 included two tailors: A. Marshall, ‘An early fourteenth-century affinity: the earl of Norfolk and his followers’, in Nigel Saul (ed.), Fourteenth Century England 5 (2008), 3. 32 G. A. Holmes, The Estates of the Higher Nobility in Fourteenth-Century England (Cambridge, 1957), ch. 3. The exceptions are Henry of Lancaster (late 1320s, early 1330s) and Lady Elizabeth de Burgh (1343) (at pp. 58‒9, 67‒9). For work on the thirteenth century, see note 2; also, for more recent discussion and references, Marc Morris, The Bigod Earls of Norfolk in the Thirteenth Century (Woodbridge, 2005), 68‒72, 141‒53; Caroline Burt, ‘A “bastard feudal” affinity in the making? The

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Thomas Brotherton, earl of Norfolk (d.1338), mentions only a small number of men who might be considered part of an affinity in the late medieval sense.33 We can in fact apply the argument that followings grew between the early and later fourteenth century to the exceptional house of Lancaster. In 1385, John of Gaunt was making payments to over 200 retained bannerets, knights and esquires, while Thomas of Lancaster’s very large retinue for his time seems to have been, at its largest, only about a quarter of that number at any one point.34 There is further evidence to suggest that smaller followings may have been the rule for much of the fourteenth century. The noticeable fall in the level of fees paid to retainers and annuitants between the fourteenth and fifteenth centuries may indicate that the decreasing sums were a function of their being paid to a larger number of retainers and annuitants.35 There is also some evidence of a fall during the course of the fourteenth century. The atypical house of Lancaster, which dominates the evidence, seems to have kept them at much the same level throughout the century: from £20 (sometimes marks) to £40 for their prominent knights up to £100 (sometimes marks) for their great retainers, some of whom were noble.36 However, by the 1370s, some of the more typical nobles were often paying at most £20 to a knight and 20 marks to an esquire, and often rather less.37 By the fifteenth century, it was

33 34 35

36 37

followings of William and Guy Beauchamp, earls of Warwick, 1268‒1315’, Midland History 34 (2009), 156‒80. See Andrew M. Spencer, Nobility and Kingship: The Earls and Edward I, 1272‒1307 (Cambridge, 2013), Part III for extended research on this subject. Marshall, ‘An early fourteenth-century affinity’, 1‒12. Walker, Lancastrian Affinity, 14; Maddicott, Thomas of Lancaster, 43‒5. By the time of Gaunt’s registers, an esquire was really a member of the gentry (see note 31). For examples of fees in the fourteenth century, see Holmes, Estates of the Higher Nobility, 60‒72 and Michael Jones and Simon Walker (eds), Private Indentures for Life Service in Peace and War, 1278‒1476, Camden Miscellany, 32, Camden Society, 5th series, 3 (1994), nos 11‒92, comparing with studies of fees in the fifteenth century: Christine Carpenter, ‘The Beauchamp affinity: a study of bastard feudalism at work’, EHR 95 (1980), 514‒33, at p. 519; Carole Rawcliffe, The Staffords, Earls of Stafford and Dukes of Buckingham, 1394‒1521 (Cambridge, 1978), Appendix D; P. A. Johnson, Duke Richard of York, 1411‒1460 (Oxford, 1988), Appendix III. There are exceptions in both centuries though most of the outsize fees or expenditure in the fifteenth century tend to be by Henry IV as duke of Lancaster (Helen Castor, The King, the Crown, and the Duchy of Lancaster: Public Authority and Private Power, 1399–1461 (Oxford, 2000), 29) or lords of the Welsh or Scottish March (for example, J. M. W. Bean, The Estates of the Percy Family (Oxford, 1958), 91‒4). See also T. B. Pugh, ‘The magnates, knights and gentry’, in S. B. Chrimes, C. D. Ross et al. (eds), FifteenthCentury England (Manchester, 1972), 101‒6. Maddicott, Thomas of Lancaster, 42, 46; Holmes, Estates of the Higher Nobility, 67‒8, 71‒2; Walker, Lancastrian Affinity, Appendix I. Holmes, Estates of the Higher Nobility, 60‒6. £20 was already a standard fee for a

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unusual for a gentry retainer or annuitant outside the northern or Welsh marches to be given more than £20 and most had much less, while the percentage of income spent on fees by a non-marcher noble was usually no more than 10 per cent. This contrasts with the 40 per cent that has been suggested for the earl of Nottingham in the 1390s and even this large percentage had fallen to c.20 per cent in the early fifteenth century.38 This point can also be illustrated by comparing atypical nobles across the two centuries, for, while the Black Prince, the heir to the throne, was giving his knights £40 in the 1360s and 1370s, in 1415 John duke of Bedford, then heir presumptive, awarded the northern knight, Robert Plumpton, a mere 20 marks.39 Before considering the significance of these numbers, we should note the rather surprising fact that, in Jones and Walker’s collection of indentures, seventy-seven of those made between a noble lord and a member of the gentry belong to the period 1307‒99 and only forty-eight to the whole of the fifteenth century.40 It is thus possible that, for much of the fourteenth century, indentures of retainder did not represent the most formal, and relatively rare, version of a widespread and varied web of links between nobles and local gentry, as they do in the fifteenth century, but were, on the contrary, the principal, possibly even unique, indicator of a relationship that was still unusual. Thus, nobles’ links to the local gentry were largely confined to the men they had retained, with the addition of a small number of senior estate and household servants; if laymen, these might be members of the minor gentry and were not always formally retained. What then was the purpose of indentures at this time? A plausible hypothesis is that they really were primarily military in intention and were nobles’ attempts to ensure that some of their most important knightly followers would turn out with a force when required. It has been shown that up to half or more of the local landholders of Nottinghamshire and Cambridgeshire

knight under Edward I (ex inf. Andrew Spencer) but knights at that time could be the equivalent of quite minor esquires a century later. 38 Chris Given-Wilson, The English Nobility in the Late Middle Ages (London, 1987), 156 (citing the work of Dr R. E. Archer) and references in note 35 above. 39 Jones and Walker (eds), Private Indentures, nos 41‒2, 46, 49‒50, 55‒6, 114. Some of the Black Prince’s knights had as much as £100 a year: D. S. Green, ‘Politics and service with Edward the Black Prince’, in J. S. Bothwell (ed.), The Age of Edward III (York, 2001), 57. 40 Jones and Walker (eds), Private Indentures, 35‒179, excluding agreements between members of the nobility and, as far as possible, indentures with menial servants. Also excluding Lord Hastings’ indentures made under Edward IV, which are not printed in this collection and are effectively agreements with the king: Theron Westervelt, ‘The changing nature of politics in the localities in the later fifteenth century: William Lord Hastings and his indentured retainers’, Midland History 26 (2001), 96‒106.

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named in crown listings under Edward I and II served in the kings’ campaigns.41 Were indentures the nobles’ answer to the post-feudal challenge of how to play their part in raising these large forces for the king? The fact that some of the earlier contracts specify the number of men-at-arms to be brought by the retainer supports this hypothesis, for the later development of routinely non-feudal recruitment of national armies would have made these clauses redundant.42 Indeed, in a list of men retained by Thomas of Lancaster, the number of men-at-arms to be brought by every retainer is indicated, from the eighty next to Warenne’s name, to the single man to accompany his least significant followers. Maddicott has calculated that Lancaster’s retainers alone may have been able to supply him with 200 knights and 350 infantry, let alone the 2,000 or more infantry he could raise from his own lands and those who might come from the resident members of his household.43 The association of most known retainers at this time with areas where their lords had lands was natural, for these would be men who, even if not feudal tenants, came within the ambit of the lord’s influence and local authority and could therefore be expected to turn out for him. Perhaps significantly, under the first two Edwards, and under the third until the 1360s, grants of land rather than fees seem to be much more common than they were to be later on. This suggests, first, that lords were still thinking in terms of substituting for feudal military service and second, that the number of men they feed was still small enough for this kind of grant not to be damaging to the estate.44 In Edward III’s reign, when the military recruitment system reached its full flowering, there may be further evidence that this was the primary reason for indentures of retainder for much of the fourteenth century. A remarkable level of continuity of service has been found, from the reigns of the first two Edwards all the way up to the 1350s. Andrew Ayton concludes that, in its mature form under Edward III, such continuity was owed to a mixture of factors, including the development of recruiting networks, some local to the lords’ estates, some not, and, as a significant element in these networks, the 41 David Simpkin, ‘Total war in the middle ages? The contribution of English landed society to the wars of Edward I and Edward II’, in Adrian R. Bell, Anne Curry et al. (eds), The Soldier Experience in the Fourteenth Century (Woodbridge, 2011), 61‒94, at pp. 75‒6. 42 See for example Jones and Walker (eds), Private Indentures, nos 13, 24‒5, 29, 32, 33, 34, 37, and at pp. 15‒16 for the origins of indentures; Maddicott, Thomas of Lancaster, 42‒3. 43 Holmes, Estates of the Higher Nobility, 140‒1; Maddicott, Thomas of Lancaster, 27, 44‒5. 44 See e.g. Jones and Walker (eds), Private Indentures, nos 14, 17‒18, 34, 38, 48, 50; Holmes, Estates of the Higher Nobility, 69‒70, 72, 74, 122‒3; Maddicott, Thomas of Lancaster, 42; Phillips, Aymer de Valence, 309‒10.

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use of lieutenants who brought their own sub-contracted companies. He doubts whether by this time the men brought by the lords’ permanent retainers were ‘more than a small proportion’ of those raised for military retinues. However, we can assume that having the guaranteed service of the indentured men and the men-at-arms they brought was important to Edward’s captains, both in supplying armies for the king and in securing a measure of permanence and familiarity among their officers.45 We may argue further for the primarily military purpose of these contracts by relating many of them directly to the annuities, either implicitly or explicitly linked to war service, that Edward III granted to some of his nobles and bannerets from the 1330s to the 1350s, ranging from 200 to 500 marks for the lesser men to 1,000 marks or £1,000 for an earl. The grants often included stipulations concerning military service and the recipients were in many cases significant members of Edward’s military establishment at home and abroad. It seems likely that this is less the ‘budget of noble assistance’ postulated by GivenWilson, following Contamine, than a mechanism for delegating recruitment, coeval with the growth of contract companies.46 Armed with these sums, nobles would be better placed to offer permanent retainder to those lieutenants whom they used as part of their recruiting networks. The figures given in some of those contracts of the early part of the century which dictated the number of men that a retainer was to bring give us an idea of what might be expected: for example, forty from William Latimer to Thomas of Lancaster in 1319 or twenty from Sir Ralph Neville to Henry Lord Percy in 1328. If the development under Edward III of a regular contractual system for military companies, along with widespread recruitment networks, made it no longer necessary to specify numbers, grants of sizeable sums of money from the king could still be very useful for Edward’s major captains in assuring them of instant access to a regular core force, to be brought by their main lieutenants.47 Under these circumstances, one would expect that the permanent indentures made by these nobles would be relatively small in number, would be made usually with prominent knights and bannerets, and were generous enough to secure the retainers’ enthusiastic co-operation. Moreover, if the main intention of these grants from the king was to guarantee that the nobles could raise men for war service, the expenditure on 45 Andrew Ayton, ‘Military service and the dynamics of recruitment in fourteenthcentury England’, in Bell, Curry et al. (eds), Soldier Experience, 15‒23; quotation at p. 20. For examples of the large retinues that a major noble captain might bring, see George Wrottesley, Crécy and Calais (London, 1898), 193. 46 Given-Wilson, English Nobility, 154‒5. 47 Holmes, Estates of the Higher Nobility, 122. The indentures in Jones and Walker contain few examples of this from the 1330s onwards. They resurface in some of Gaunt’s contracts, however (Walker, Lancastrian Affinity, 48‒9), perhaps because Gaunt’s outsize military commitments necessitated a return to earlier practices.

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retaining of quite a high percentage of a noble’s income, now enhanced by that annuity, is logical.48

V Pulling all this together, it can be argued that the social, political and governmental system for which bastard feudalism is shorthand barely existed at the accession of Edward II and emerged in its full form much later in the century. The main purpose of indentures was initially to furnish the king’s armies, and lords were not embedded in local societies, as the chief protectors of the gentry and their lands and as ‘gatekeepers’ to local rule on the kings’ behalf, until its last three decades or so. There is, however, a gaping hole in this story. This is the fact that it has become a commonplace that magnate influence over local government and the law was already rife under Edward II.49 Furthermore, it is often assumed that what we see in the localities under Edward II is indicative of an inexorable progression to local control, local corruption and local violence set in train under Edward I, usually attributed to war or the breakdown of the eyre, or both, and first disclosed in his enquiries of 1304‒7.50 But there is an alternative way of looking at these conditions: as a manifestation of the particular circumstances of Edward II’s reign, combined with the changes in the law made by his father. If we begin with the reign itself, we might consider whether what we see under Edward II is not so much magnates and gentry taking advantage of local disturbance, to use the law as they wished, as a defensive reaction to the failure at the centre. That would fit with the idea that the country was still accustomed to an essentially centrist kind of rule in 1307. Thus, even if indentures first appeared in order to furnish the king’s military needs, under Edward II local magnates began to use them to build up their military power to replace the missing 48 Possible examples of retaining done with the benefit of money received from the king in this way are seen in Thomas de Bradeston, a banneret (Given-Wilson, English Nobility, 154; Complete Peerage, s.n.) in 1345‒7 (Saul, Knights and Esquires, 280) and Grosmont’s larger annuities (Holmes, Estates of the Higher Nobility, 66‒7). Ayton, ‘Military service’, 20. 49 See above, pp. 63‒4; also for example John Bellamy, Crime and Public Order in England in the Later Middle Ages (London, 1973); Saul, Knights and Esquires, 202; Kaeuper, ‘Law and order’, 751, 782‒3; Scott L. Waugh, ‘For, king, country and patron: the Despensers and local administration, 1321‒1322’, Journal of British Studies 22 (1983), 23‒58. 50 A. Harding, The Law Courts of Medieval England (London, 1973), 86‒92; A. Harding (ed.), ‘Early trailbaston proceedings from the Lincolnshire roll of 1305’, in R. F. Hunnisett and J. B. Post (eds), Medieval Legal Records Edited in Memory of C. A. F. Meekings (London, 1978), 146‒51; Richard W. Kaeuper, War, Justice, and Public Order: England and France in the Later Middle Ages (Oxford, 1988), 3‒4.

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royal authority. This was primarily to safeguard themselves against local and national enemies, but we should bear in mind that local order had always been closely linked with the availability and government control of local manpower: through the sheriff ’s posse comitatus, the updating of the Assize of Arms in 1242, the Statute of Winchester of 1285, and the continuing link of the keepers and justices of the peace with the array. Once local officers could not be trusted to oversee or deploy these men, the local armati, to keep the peace, and the king was unable to call to order either his officers or landowners, it made sense for local lords to turn themselves into the dominant local military power.51 The evidence of indentures is suggestive here. If it was access to military power, in peace as well as in war, that was the prime mover for nobles’ use of life indentures for most of the century, then we might well expect the amount of retaining to increase in the reign of Edward II. Numbers of retainers may then have fallen as internal peace returned under Edward III, perhaps to rise again as Edward III’s military ventures encouraged lords to seal permanent indentures with selected lieutenants. We are not in a position at present to test the first and third of these propositions, but the fact that the standard first phrase of indentures of retainder is thought to have emerged from Thomas of Lancaster’s chancery might suggest that such agreements did indeed become widespread for the first time under Edward II. Comparison of the size of the knightly retinues of Thomas of Lancaster and his successor, Earl Henry, might offer some support for the second proposition: about fiftyfour for Thomas and about twenty for Henry.52 Moreover, in the period between 1313 and 1319, when Thomas’ relations with Edward II were extremely bad, he probably spent over £7,500 a year of his £11,000 or so annual income on maintaining and feeing his household. This very large sum suggests that much was devoted to fees for retainers and to other expenditure designed to increase the size of his military household. The dimensions of the army that he could raise via his retinue and household have already been noted.53 By contrast, in the early 1330s, Henry spent about 6 per cent of his clear income on fees to permanent retainers, some of them knights. We are unable to compare Henry’s total household expenditure with Thomas’ but the size of the force at Henry’s disposal was certainly not commented on at the time as Thomas’ was.54 It is highly probable that much of Thomas’ outlay was for personal defence against the king and other nobles.55 And, beyond the risks 51 Harry Rothwell (ed.), English Historical Documents, iii, 1189‒1327 (London, 1975), 357‒9, 460‒2; Morris, ‘The sheriff ’, 57‒61; Musson, Public Order, 15‒17; Musson and Ormrod, Evolution of English Justice, 50, 52. 52 Maddicott, Thomas of Lancaster, 45; above, at note 36, for Henry. 53 Maddicott, Thomas of Lancaster, 22‒3, 27‒8; above, p. 73. 54 Maddicott, Thomas of Lancaster, 43‒4. The figure for Henry is ex inf. Andrew Spencer. 55 See e.g. Maddicott, Thomas of Lancaster, 53, 154‒7; Andy King, ‘Lordship, castles and locality: Thomas of Lancaster, Dunstanburgh Castle and the Lancastrian affinity in Northumberland’, Archaeologia Aeliana 5th series, 29 (2001), 223‒34, at p. 229.

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of national politics, there were certainly good reasons for nobles to ensure that they had enough retainers under Edward II. For example, the CharltonPole feud continued almost throughout the reign, not just unrestrained by the king but positively encouraged by Edward’s favouring of Charlton and Lancaster’s of Pole.56 In 1318 Pembroke’s longstanding relationship with the Berkeleys broke down in a violent attack on the earl’s manor of Painswick in Gloucestershire. No action was taken for over five months, and it was a year and more before the oyer and terminer commissions that were eventually sent to Gloucestershire achieved any restitution for Pembroke. One does not envisage Edward I permitting a case concerning an attack on a major noble close to the throne by another prominent family to drag on in this way.57 Lancaster himself was faced with a rebellion in his own county of Lancashire in 1315, led by his own retainer, Adam Banaster, and the value of a private force was shown in the rebellion’s suppression.58 As Pembroke’s case suggests, Edward II’s failure to keep the peace or to punish infractions of it meant also that the judicial system was often insufficient. The delays in Pembroke’s suit against the Berkeleys were caused by their refusal to answer the summons of the commission; their subsequent arrest of the Gloucestershire coroners, to prevent them pronouncing outlawry on themselves and their fellow defendants; and, once the defendants had appeared before the justices, the impossibility of summoning a jury, all of them apparently too scared to turn up. In fact, the proceedings were never completed and Pembroke’s eventual compensation appears to have come from an informal settlement.59 Just as Edward I is likely to have acted swiftly in such a case, it seems unlikely that he would have permitted such a high-profile affair to have ended in a private compromise in which the king apparently played no part.60 One of the reasons for the failure of the law in this case was that the Berkeleys had enough retainers in Gloucestershire at the time to feel confident in resisting it.61 The whole episode gives substance to the idea that retaining under Edward II was a response to the lack of effective governance and the consequent need for private military forces. But what happened under Edward II also undoubtedly reflected the largescale changes in the law in the later years of Edward I, and at this point we need to return to the public, institutional context. The prosecution of pleas 56 J. C. Davies, The Baronial Opposition to Edward II: Its Character and Policy (Cambridge, 1918), 216‒17; Maddicott, Thomas of Lancaster, 140‒1, 143‒5, 147, 184. 57 Phillips, Aymer de Valence, 261‒7. Cf. Spencer, Nobility and Kingship, chs 6‒8, which shows how swiftly and effectively Edward I acted as soon as he deemed it necessary. 58 G. H. Tupling, South Lancashire in the Reign of Edward II (Chetham Society, 1949), pp. xlii–viii; Maddicott, Thomas of Lancaster, 174‒6, and 176‒7 for more on disorder in the north affecting Lancaster. 59 Phillips, Aymer de Valence, 265‒6. 60 See above, note 57, and, for more on out-of-court settlements, below, p. 89. 61 Saul, Knights and Esquires, 69‒70 (he suggests ‘perhaps a dozen knights’).

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through bills of trespass requesting special oyer and terminer commissions had already been growing in the early years of Edward I. Then, with the arrival of the trespasses associated with conspiracy in the 1290s and their incorporation into the crown’s proceedings in 1304‒7, the king’s courts were entertaining pleas that had a direct impact on landowners: all the more dubious facets of protecting and laying claim to lands, from corrupting and threatening officials to outright violence.62 The number of private commissions of oyer and terminer grew fairly steadily in the later years of Edward I and, throughout the reign, they tended to peak when there was no major intervention by the crown in the shires.63 These commissions could often offer a quick resolution, and plaintiffs had the opportunity to name their preferred justices.64 With Edward II so much less active than his father in issuing general enquiries to impose the king’s peace, it is therefore hardly surprising that there was large-scale resort to private oyer and terminer commissions. This was despite the determination expressed in the parliament of 1315 that, because such commissions were given too lightly, ‘where a great lord, or a man of power, wishes to destroy a man’, ‘henceforth they are not to be granted except for very great trespasses’.65 It is noteworthy that the percentage of such commissions issued on behalf of gentry plaintiffs, having been at 52 per cent in 1299‒1301, had risen to 68 per cent by 1316‒19, some of the worst years of the reign.66 Many of the justices requested at this time were gentry or minor nobles.67 This implies both that the routine judicial processes were no longer answering the gentry’s needs and that they were often looking for assistance from those with local influence. In fact everything was in place for a ‘bastard feudal’ application of law in the shires, including retaining not just for military purposes but also to have influence over local officers. We do not have to look far for evidence of a perception that this was occurring. There were complaints in parliament at this time about abuse of the law in the localities, especially regarding commissioners of oyer and terminer and sheriffs, and evidence of partiality in the administration of the law is not hard to find.68 Unsurprisingly, much of it concerns commissions of oyer and terminer. Maddicott cites three instances between 1315 and 1320 62 Kaeuper, ‘Law and order’, 742‒3; Alan Harding, ‘The origins of the crime of conspiracy’, TRHS 5th series, 33 (1983), 94‒104; Harding (ed.), ‘Early trailbaston proceedings’, 146‒51. 63 Kaeuper, ‘Law and order’, 738, 739‒41, 743‒4. 64 Kaeuper, ‘Law and order’, 750‒74. 65 PROME, i, 290, item 10. 66 Kaeuper, ‘Law and order’, 750. For national and local instability at this time, see Seymour Philips, Edward II (New Haven, CT, 2010), chs 6‒8 and Maddicott, Thomas of Lancaster, chs 5‒7. 67 Kaeuper, ‘Law and order’, 753. 68 For complaints, see PROME, i, 289‒91.

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in which Lancaster was able to influence in his favour the composition of judicial commissions that were enquiring into matters of personal concern. With a favourable justice, the proceedings themselves could be manipulated. A notable example of judicial malfeasance occurred when Maurice Berkeley, presiding in 1312‒13 over a plea of his retainer, John Botiller, told one of the defendants that he would make sure that the record of the proceedings would not arrive in King’s Bench. This meant that there could be neither judicial oversight nor an appeal against the verdict.69 Then, even on the limited evidence that we have, there was some justification for the belief that too many men connected with the nobility were becoming sheriffs.70 For example, at various dates between 1314 and 1318, retainers of Thomas of Lancaster were appointed to the joint shrievalties of Warwickshire and Leicestershire, and Shropshire and Staffordshire, areas where he was a major landowner.71 In the absence of closer study of the localities in this period, it is not possible to say whether local officials such as sheriffs were regularly exploiting their position on behalf of noble masters and fellow members of noble affinities, as would be a common occurrence under classic bastard feudalism; Lancaster’s almost permanent absence from Staffordshire would suggest that he took little interest in what happened there.72 Even so, there is some suggestive evidence. For example, in 1318 the sheriff of Staffordshire had returned falsely that he had imprisoned Juliana Murdack for the murder of her husband, a knight of Warwickshire and Northamptonshire, and thereby provided a basis for the quashing of her outlawry in Warwickshire. This was clearly a ‘domestic’, in which Juliana was aided and abetted by her household staff and by her subsequent husband John de Vaux, but equally Vaux was evidently a man of some importance in Staffordshire, where the killing occurred, and may therefore have had some influence with the sheriff.73 The earl of Pembroke’s retainer, William de Claydon, was able to prevent an assize of novel disseisin against him being heard for three and a half years, with the 69 Maddicott, Thomas of Lancaster, 50; Kaeuper, ‘Law and order’, 769; Saul, Knights and Esquires, 70. See Powell, Kingship, Law, 54 on King’s Bench’s supervisory jurisdiction. 70 PROME, i, 343. 71 Maddicott, Thomas of Lancaster, 63. It is even true of the much less locally engaged Pembroke (Phillips, Aymer de Valence, 310‒11). Also Roger Mortimer, especially in Herefordshire, notably from 1316: Paul R. Dryburgh, ‘The Career of Roger Mortimer, First Earl of March (c.1287‒1330)’, unpublished PhD thesis (University of Bristol, 2001), 162‒3, 166. 72 A. J. Gross, ‘The king’s lordship in the county of Stafford’, Midland History 16 (1991), 24‒44, at pp. 30, 38‒9. 73 ‘Plea Rolls of the reign of Edward II’, Collections for a History of Staffordshire 10 (1889), 27‒8, 35‒6, 37‒9; L. F. Salzman (ed.), Victoria History of the County of Warwick, v (1949), 58; Peter Coss, The Lady in Medieval England, 1000‒1500 (Stroud, 1998), 131‒7. Vaux was constable of Stourton Castle, where the murder occurred. See Gross, ‘King’s lordship’, 34‒6 for further suggestive instances.

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aid of the sheriff ’s clerk of Suffolk.74 More generally, it is possible to cite many further examples of abuse of, or resistance to, official power, that took place throughout the reign and the period of Mortimer power just after. This was often used to perpetrate or cover up crimes, some of a violent nature, and some of it committed by men linked to local nobles.75 All this is a world away from what, as far as can be told at the moment, was the norm under Edward I, even when the enquiries of 1304‒7 reveal much more of the kind of behaviour that the ‘conspiracy’ part of their remit was designed to root out.76 However, it is, interestingly, in these last years of Edward I, when the king was ageing, much concerned about order and much preoccupied with Scotland, that we have the first evidence of nobles establishing ‘bastard feudal’ links with local officers on any kind of scale. It may be that this was their first experience of stepping into the breach locally, in this case probably with the king’s blessing and support.77 Possibly, it helped prepare them for their response to what was soon to come. But it is arguable that, from the middle of Edward II’s reign, when the country was particularly disturbed, there were efforts to revert to a style of rule more like that of Edward I. The national trailbaston commissions of 1313‒16 and the experiment in using King’s Bench as an additional itinerant court begun in 1318 could be seen in this light, as could enquiries into sheriffs and other officers launched in 1320. This might be applied even to the further development of the King’s Bench from 1323 as a very aggressive form of trailbaston. There seems also to have been a greater determination, as early as 1315, to respond in parliament to complaints and petitions regarding justice and order. Unfortunately, the schemes of 1313‒16 and 1318 were doomed to failure by divisions and disorder at national and local level, while parliament was too often dominated by confrontation or crisis. As for the later King’s Bench itinerations, which might have been the occasion of a new start after Lancaster’s defeat, they were too obviously a vehicle for revenge and for the self-aggrandisement of the Despensers, part of their wider use of the law for their own purposes.78 74 Phillips, Aymer de Valence, 260. Pembroke had substantial lands in Suffolk but Phillips does not record any link with the sheriff there: ibid., 244, 310‒11. 75 For example, Maddicott, Thomas of Lancaster, 50‒1; Gross, ‘King’s lordship’; Calendar of Patent Rolls, 1307‒1313, 420; ‘Plea Rolls of the reign of Edward II’, Collections for a History of Staffordshire 9 (1888), 99‒100; ibid., 10 (1889), 66‒75; S. L. Waugh, ‘The profits of violence: the minor gentry in the rebellion of 1321‒22 in Gloucestershire’, Speculum 52 (1977), 843‒69; Saul, Knights and Esquires, 183, 202‒3. Note that care is needed in using accusations made against the defeated, especially of 1321‒2. 76 Caroline Burt, Edward I and the Governance of England, 1272‒1307 (Cambridge, 2013), passim and Harding, ‘Early trailbaston proceedings’, 147‒9. 77 Burt, ‘A “bastard feudal” affinity’, 156‒80, especially pp. 178‒80, but she emphasises the lords’ need to protect their local interests while away at war. 78 Kaeuper, ‘Law and order’, 744; G. O. Sayles (ed.), Select Cases in the Court of King’s Bench under Edward II, iv, Selden Society 74 (1955), pp. lviii–lxiii, lxxxiv; Gwilym

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The Despensers’ attempt to impose their authority on Gloucestershire, where Hugh the younger was trying to make himself pre-eminent, epitomises these mutually conflicting aims: what could be seen as the centre’s efforts to take back control of the legal system actually developed into a form of private tyranny. As such, it failed. The resurgence of the Berkeley interest in local government from c.1324 demonstrated the practical limits to domination of this kind and the continuing need at this time for local magnate power, if local government was to be in any way effective.79 However, the sharp fall in private oyer and terminer commissions from 1319, the year after the experiment with the King’s Bench began, followed by persistently lower levels until the end of the reign, does make the administration of law look superficially much more like what it had been under Edward I.80 But, if there was a return to the forms of the judicial administration of Edward I, even the subjective and anecdotal evidence, which is all we have at the moment, suggests that there was no real reversion to more central control and more peaceful local habits. Indeed, the efforts of the Mortimer regime to restrict the grant of individual oyer and terminer commissions may well have contributed to its overthrow, for, unless the government could reclaim control of legal administration, these commissions were an essential safety valve. The deeds of the Coterels and Folvilles in the late 1320s and early 1330s and other evidence of continuing local upheaval reveal the dimensions of Edward III’s problems when he took power in 1330.81

VI We should now examine how Edward III dealt with law and governance in the localities, starting from the premise that noble power in the shires between 1307 and 1330, and the ‘bastard feudal’ practices that accompanied it, had Dodd, Justice and Grace: Private Petitioning and the English Parliament in the Late Middle Ages (Oxford, 2007), 74‒6; Waugh, ‘For king, country, and patron’, 23‒58; Michael Prestwich, Plantagenet England, 1225‒1360 (Oxford, 2005), 188‒204; Natalie Fryde, The Tyranny and Fall of Edward II, 1321‒1326 (Cambridge, 1979), chs 5 and 6. 79 Nigel Saul, ‘The Despensers and the downfall of Edward II’, EHR 99 (1984), 1‒33 on the narrowness of the Despenser power-base, and Knights and Esquires, 152‒3 on the resurgence of the Berkeley interest. Julian Turner, ‘Law and Justice in the Fourteenth Century: Gloucestershire, 1321‒30’, unpublished BA thesis (University of Cambridge, 1982) on the limits to such a ‘tyranny’ (with thanks for permission to quote this). 80 Kaeuper, ‘Law and order’, 741, 744‒5. 81 Kaeuper, ‘Law and order’, 745‒6; J. G. Bellamy, ‘The Coterel gang: an anatomy of a band of fourteenth-century criminals’, EHR 79 (1964), 698‒717; E. L. G. Stones, ‘The Folvilles of Ashby-Folville, Leicestershire and their associates in crime, 1326‒47’, TRHS 5th series, 7 (1957), 117‒36; Ormrod, Edward III, 106‒7.

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been largely a defensive reaction to the failure of royal government under his father. Edward’s task was to revitalise the system for making local law and peacekeeping unequivocally the responsibility of the centre. At the same time, there was now at his disposal the revolutionary option of making constructive use of the systems for self-help that had developed in the shires under his father. And, in all his decisions, he needed increasingly to place the needs of war first. Most of Edward’s responses in the 1330s were in fact centrist, perhaps on the advice of Sir Geoffrey Scrope, Chief Justice of the King’s Bench, who had been a young lawyer in the later years of Edward I and had framed policy under Mortimer, where he had tried explicitly to devise remedies against ‘diuers oppressions des grauntz’. Even so, in a decade that was full of experiment, Edward also periodically gave some leeway to the shires, in the form of responsibility for self-policing.82 Moreover, the overlap of personnel between the various centralised and localised commissions demonstrated by Musson shows that neither Edward nor his advisers were ready to ignore entirely the claims of local men to have some say in peacekeeping, nor indeed their usefulness.83 However, even though internal order had almost certainly improved a lot by the end of the decade, the fact that in 1338 the sheriff of Suffolk was unable to assemble for a plea a jury of knights who were not in some way connected with the plaintiffs – the earls of Norfolk and Northampton and two other prominent local men – suggests that nobles were still sufficiently nervous about whether the king could make his legal system work to continue to retain and fee widely in the shires. Moreover, the new rise in the number of private commissions of oyer and terminer for much of this period might indicate a continuing lack of faith in attempts at resurrecting centrally directed law and justice.84 Edward’s solution from 1341, when he set about serious reorganisation of 82 E. L. G. Stones, ‘Sir Geoffrey le Scrope (c.1285‒1340), chief justice of the King’s Bench’, EHR 69 (1954), 1‒17, at pp. 2‒3, 11‒12; Stones, ‘The Folvilles’, 126‒7; H. Cam, ‘The general eyres of 1329‒30’, in Cam, Liberties and Communities, 150‒62 (quotation at p. 159); B. W. McLane, ‘Changes in the court of King’s Bench, 1291‒ 1340: the preliminary view from Lincolnshire’, in W. M. Ormrod (ed.), England in the Fourteenth Century (Woodbridge, 1986), 155‒6; Putnam (ed.), Proceedings, xxxix– xli; W. R. Jones, ‘Rex et ministri: English local government and the crisis of 1341’, Journal of British Studies 13 (1973), 1‒20, at pp. 6‒7; Musson and Ormrod, Evolution of English Justice, 47, 49, 51, 64; Musson, Public Order, 73‒4, 236‒7; Ormrod, Edward III, 107‒10; PROME, ii, 104‒5, item 10. 83 Musson and Ormrod, Evolution of English Justice, 64; Musson, Public Order, 73‒4 and chs 3, 5, 6 and 7. 84 Holmes, Estates of the Higher Nobility, 82‒3; Calendar of Inquisitions Post Mortem, viii (London, 1913), 95 (see Holmes for correction of the calendar); Kaeuper, ‘Law and order’, 741. The state of the realm regarding order c.1338 remains a matter of guesswork (Ormrod, Edward III, 112 for a pessimistic view) but it is difficult to believe that Edward would have left for France had there not been improvement.

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his government and country for war, was in many ways to restore the centralised mechanisms of his grandfather. However, it was carried out in a manner that took account of the much larger and still growing range and number of pleas that had come into being as a result of the larger scope of the law and the greater number of litigants. On the one hand, there were draconian central commissions and periodically a potentially punitive itinerant King’s Bench, in a policy that seems to have been masterminded by his chief justice, Sir William Shareshull, who had learned his trade under Scrope. On the other, the itinerant King’s Bench also offered the localities access to central justice, perhaps most importantly via a court to which they could bring bills, rather than having to petition by bill for the oyer and terminer commissions whose partisanship could destabilise local justice.85 It may well be that one result of all this was that local offices became less politicised in this period. In fact, we should seriously consider whether, now that the king was doing a decent job, the nobility, perhaps with a sigh of relief, began to extricate themselves from the entanglement in the shires, which had become necessary since 1307. Those who were much abroad (many of them) would in any case have found it difficult to maintain this degree of involvement.86 However, it would have been impossible to return entirely to the conditions of Edward I’s reign. By the end of that reign, the demands on the king’s law from both the king and his subjects were making it ever harder for the old centrist system to work without some local assistance. The later years of Edward I also demonstrated that, under the pressure of war and the demands that war made on government and country, it was very difficult for the king alone to keep the lid on local disorder. This was likely to be all the more true with Edward III’s still greater and more extended wars. Moreover, the scale of his need for troops, money and supplies necessitated a more permanent source of authority in the shires than the king’s delegated agents could offer.87 Even with our present limited knowledge, it is clear that the solution Edward developed from the 1340s was to use the local powers on whom he knew he could rely, starting with the use of several major nobles whom he still trusted for the punitive commissions of 1341‒4. These included such important figures as the earls of Derby, Northampton, Arundel and Huntingdon.88 Most notably, between 1344 and 1351, he appointed nobles to be life sheriffs in six 85 Ormrod, Edward III, 259‒60, 371, 477‒8; Jones, ‘Rex et ministri’, 1‒20; Putnam (ed.), Proceedings, lvii–lxiii, 29‒32; Bertha Haven Putnam, The Place in Legal History of Sir William Shareshull (Cambridge, 1950), 20; Musson and Ormrod, Evolution of English Justice, 49, 118‒19; Carpenter, ‘War, government and governance’, 19‒20. For more on punitive commissions, see below, pp. 86‒7. 86 E.g. Derby/Lancaster, Clinton, March, Northampton, Arundel, Warwick: Ormrod, Reign of Edward III, 103; Complete Peerage and ODNB, s.nn. 87 Carpenter, ‘War, government and governance’. 88 Jones, ‘Rex et ministri’, 4‒5.

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counties. There were also the counties already in noble hands in heredity.89 Nearly all these noble sheriffs were men close to the king; these were not so much surrenders to local powers as the harnessing of trusted local powers to do the king’s business, and their role was clearly designed to give them a widely conceived authority within the shire. For example, Warwick himself was regularly named to the commission of the peace in Warwickshire between 1345 and 1368, initially in a period when nobles were less likely to feature on it, along with close family members, servants and associates of the earl. It seems that the Warwick interest did not dominate the commission but, especially with the earl as the leading member, it was in a position to see that any royal wishes with regard to peace-keeping were carried out, even when he was abroad on the king’s business. Warwick also served as JP in Worcestershire, where he was hereditary sheriff, and in both counties in other capacities also, for example array.90 Similarly, the earl of Devon, who was too unwell to serve abroad from 1347, although not given the life shrievalty of the county, led the Devonshire commission of the peace, serving with men linked to himself or to the Black Prince, who, as duke of Cornwall, had lands and followers in Devon.91 If the military leaders amongst these nobles were sealing indentures so they could support the king’s wars, the consequent enlargement of their connections among the gentry may have helped extend their capacity to assist his rule at home. A comparable fusion of centrist and localist approaches to rule eventually evolved with regard to the powers and structure of the commission of the peace. The commissions of 1341 to 1344 led to the Commons complaining in the parliament of 1344 about the enquiries, and demanding that they be replaced by JPs with determining powers.92 The king relented, and in 1344 the first steps were taken in the direction of having a commission that was both local and centralised. The JPs were local gentry, afforced in a few cases 89 Life shrievalties: Warwickshire and Leicestershire (Warwick, 1344), Shropshire (Arundel, 1345), Staffordshire (Derby, 1345), Cambridgeshire and Huntingdonshire (Lisle, 1351): Ormrod, Reign of Edward III, 110 and 233, note 94; List of Sheriffs for England and Wales, PRO Lists and Indexes 12 (1898), 117‒18, 127, 145. Hereditary shrievalties: Lancashire (Lancaster), Westmorland (Clifford), Rutland (Audley and Bohun), Cornwall (Black Prince), Worcestershire (Warwick): Gorski, FourteenthCentury Sheriffs, 34. 90 For Warwick’s connections in the county, see S. Barfield, ‘The Beauchamp Earls of Warwick, 1268‒1369’, unpublished MPhil thesis (University of Birmingham, 1997), ch. 3, with thanks to Mr Barfield for permission to cite his thesis. For commissions, including of the peace, in Warwickshire and Worcestershire, see Calendar of Patent Rolls, 1343‒70. 91 See for example Calendar of Patent Rolls, 1350‒4, 87, 1354‒8, 552, 1361‒4, 64; R. J. Burls, ‘Society, Economy and Lordship in Devon in the Age of the First Two Courtenay Earls’, unpublished DPhil thesis (University of Oxford, 2002), ch. 4. 92 On the commissions, see below, p. 86.

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by mostly minor local nobles, but their power to determine was dependent on the presence of qualified lawyers.93 From 1351, this developed into the quorum of assize justices for determining felony and, although there was still occasion for reversals of such a modified localist policy until the late 1360s, this was how the commission was to develop.94 We have noted already the growth in size of the commission, as well as the normal addition of local nobles if they were not away on campaign, especially from 1350. This was all part of the JPs’ acquisition of an acknowledged role in the central–local partnership. The greatest local hegemony of all was bestowed on Edward’s close friend and aide, the duke (erstwhile earl) of Lancaster, when he was given palatinate powers in Lancashire in 1351, making the county in effect a sub-division of the kingdom administered by the duke.95 It seems likely that this was the consequence of the depressing series of major outbursts of violence and internecine fighting among Lancastrian landowners, from Banaster’s rebellion in 1315, to further feuding in the 1320s, and murder and mayhem at the Liverpool assizes in 1345. The problem was made particularly intractable by the fact that Henry, earl of Lancaster, the leading nobleman during the first part of Edward III’s reign, was blind and, it seems, more wedded to his honour of Leicester than to his Lancashire lands, while his successor in 1345, the future duke, was the king’s right-hand man militarily, and consequently more often abroad than not and, when at home, equally reluctant to spend time in the north. One response had been to issue commissions of the peace that were outsize even by late fifteenth-century standards: forty-one in 1345 and sixty in 1350.96 Delivering the responsibility for the county to a locally run administration under a man so close to the king must have seemed a solution that would offer local effectiveness combined with central direction, via the personal relationship between king and duke. Below such frontline nobles as Lancaster and the noble sheriffs and leaders of the peace commissions were men like Nicholas Lord Cantilupe, a north Midland landowner and a servant of the king in multiple capacities, including as justice, soldier, diplomat and adviser. He sat frequently on judicial and other commissions in the localities, especially in his own home counties of Nottinghamshire, Derbyshire and Lincolnshire.97 Another of this type was 93 Musson, Public Order, 17, 77‒8; Musson and Ormrod, Evolution of English Justice, 51; Calendar of Patent Rolls, 1343‒5, 393‒7. 94 Musson, Public Order, 79; Musson and Ormrod, Evolution of English Justice, 51; Ormrod, Edward III, 371, 477‒8. 95 Walker, Lancastrian Affinity, 142. 96 Tupling, South Lancashire, pp. xlii–li, lix–lx; R. Stewart-Brown, ‘Two Liverpool medieval affrays’, Transactions of the Historic Society of Lancashire and Cheshire 85 (1933), 71‒81; ODNB s.nn. for evidence of their preferred residences; Calendar of Patent Rolls, 1343‒5, 509‒10, 1348‒50, 533. This insight regarding the creation of the palatinate comes from the work on Lancashire of my PhD student Gunnar Welle. 97 ODNB, s.n.

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Guy de Bryan, technically a banneret rather than a noble but a man summoned to the Lords, who likewise served in both military and local official capacities.98 In fact Edward seems to have been particularly good at discovering able men who could function in a number of different spheres. The regular appointment of nobles to the commission of the peace from 1350 was, as we have seen, primarily to stiffen its local authority at a time when the landed classes were under pressure from the lower classes. The great benefit to the king of using nobles in all these capacities was that their landed power made them natural local leaders, while their recruitment of many of their own servants among the local gentry enabled them to discover who would be reliable and efficient local officers. This is how Edward seems to have lighted on several of his cadre of trusted local officers after 1340: for example, Sir John Delves, a servant of Arundel, soldier, Shropshire JP, and then multitasking servant to the Black Prince in Wales and Chester, and finally justice of the Common Pleas (another of those multiply talented soldiers and administrators and justices).99 We need to think about reversing the normal paradigm and consider that a noble may have recommended a servant for local office, not to make use of his influence, but so that the king was well served at a time when the requisite expertise was still in short supply.100

VII One striking aspect of Edward’s attitude to the men he made use of is his readiness to attack them if he felt they had let him down, especially when his military exertions were stretching him badly.101 In 1341‒4, a host of greater and lesser officers, from justices, to sheriffs, to minor local officials, were caught in the eye of Edward’s storm, and it is evident that in some cases they were being sacrificed to Edward’s put-upon subjects simply for doing their jobs, as demanded by the king.102 Even the very great were not always immune. For example, between 1354 and 1360, Edward reined in his own son, 198 Complete Peerage, s.n.; Burls, ‘Society, Economy and Lordship’, 175‒7. 199 Richard Partington, chapter on law and lawyers, to be published in J.-P. Genet, John Watts and Christopher Fletcher (eds), Governing in Late Medieval England and France: Office, Network, Idea, forthcoming, with thanks to Mr Partington for permitting me to cite his work in advance of publication. 100 An insight I owe to Richard Partington. 101 For the general point, see Richard Partington, ‘Edward III’s enforcers: the king’s sergeants-at-arms in the localities’, in Bothwell (ed.), Age of Edward III, 96‒106. 102 Jones, ‘Rex et ministri’, 1‒20; Bernard William McClane (ed.), The 1341 Royal Inquest in Lincolnshire, Lincoln Record Society 78 (1987): see especially several of the charges against Gilbert Ledred, multiple local official: e.g. nos 1135‒9. For the context, see G. L. Harriss, King, Parliament, and Public Finance in Medieval England to 1369 (Oxford, 1979), chs 10‒13.

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the Black Prince, when he felt that the Prince’s aggressive use of his powers as Prince of Wales towards the Marcher lords was alienating men like Arundel and Warwick who were important to him. Equally, Arundel’s usefulness to the king had not stopped Edward arresting three men who were close to the earl in the 1340s.103 A more dramatic example was made of Sir John Moleyns, soldier, personal agent and strong-arm-man to the king, and Buckinghamshire justice of the peace and of oyer and terminer, who was twice prosecuted, in each case for a string of apparently appalling crimes.104 Moleyns has been held up as an example of lawlessness under Edward III, and of the king’s reluctance to take it seriously unless it suited him personally to do so.105 However, a closer examination reveals a rather different agenda. Moleyns was almost certainly a difficult and sometimes violent and dangerous man, but we need to remember that the accusations made against him, often going back several years, arose when he had fallen foul of the king in 1340‒1 and of the queen in the 1350s. It was accordingly open season on him, the charges against him were entirely one-sided, and were not all necessarily wholly true.106 From our perspective, what is revealing is that he was hauled over the coals in the early 1340s, in company with so many of Edward’s servants and officials; that he was pardoned, as were so many others who felt the king’s wrath at that time; and that he then served the king further, in the Crécy campaign, at a great council, and as JP. His final downfall, following his appointment as steward of the queen’s household in the 1350s, seems to have been due to the emergence of complaints of ‘oppressiveness’ against him, just as the queen became unhappy with his work and the king had no further interest in employing him.107 We may see cynicism on Edward’s part in all these instances of intervention but, as far as he was concerned, these greater and lesser men were there to help accomplish his work of supplying the war and keeping the peace and, if they failed, or appeared to him to do so, he would have no mercy. This was not a man who simply handed over the localities to local powers and took no interest in the outcome. What we can observe in Edward III’s rule from 1341 is an attempt by the crown to harness local power, above all noble power, to its rule, in recognition 103 R. R. Davies, Lordship and Society in the March of Wales, 1282‒1400 (Oxford, 1978), 269‒73; Partington, ‘Edward III’s enforcers’, 105‒6. 104 For what follows, see Natalie Fryde, ‘A medieval robber baron: Sir John Moleyns of Stoke Poges, Buckinghamshire’, in Hunnisett and Post (eds), Medieval Legal Records, 198‒221. 105 Fryde, ‘Medieval robber baron’, 207; John Aberth, ‘Crime and justice under Edward III: the case of Thomas de Lisle’, EHR 107 (1992), 283‒301, at pp. 293‒301. 106 Similar points can be made about the nature and timing of the charges with regard to other causes célèbres, for example against Bishop Lisle (Aberth, ‘Crime and justice’) and Lord Fitzwalter (Ormrod, Reign of Edward III, 112). 107 Jones, ‘Rex et ministri’.

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of the sheer scale and reach of its responsibilities. The fact that agitation about the alleged improprieties of royal justices continued during these years shows the degree to which the central ministers of the crown still had a major effect on how the law was administered.108 This was probably for two reasons. First, the local administration of the cases going through the central law courts was still in the hands of sheriffs who believed that their responsibilities to the king, either through direct association or via a noble lord who was a major servant of the king, normally outweighed those to their locality. Secondly, there is no argument but that the king continued to police the localities by means of the itinerant King’s Bench and, on occasion, by special commissions. If he was unhappy about order or the enforcement of his commands in the shires, he was still very ready to send men in to sort things out. He was also ready to use his serjeants-at-law, his ‘enforcers’ as Richard Partington has termed them. These first become prominent in 1340 and were employed thereafter in a number of different capacities. Mostly they were used to get what he needed for war and attack those who stood in the way of this aim, including his own officers. But he also deployed them for other purposes, for example to arrest obstructive local notables, and to spearhead an attack in the early 1350s on offenders of all kinds, from nobles to breachers of the new labour legislation.109 And his system seems to have worked. If we regard oyer and terminer commissions issued in response to individual petitions as an index of the efficacy of royal control of the shires and of confidence in the king’s law, rather than as one of landowners behaving badly, it is telling that the number of such commissions never again rose to the levels of the 1310s and 1320s, and began to fall significantly in the later 1340s.110 This was certainly also related to the availability of the itinerant King’s Bench and the JPs as alternative avenues, notably as fora which could receive the bills that oyer and terminer commissions handled.111 It must also have been connected to the significant fact that Edward III’s government felt confident enough of its rule of the localities to legislate in 1360 against petitioners naming their desired justices.112 All the same, as we have seen, when the crown responded energetically and effectively to problems of local order, the number of private oyer and terminer commissions did decline. The hypothesis that the decline 108 See e.g. PROME, ii, 136‒7, 141, 167‒8, 286‒7; also Ormrod, Reign of Edward III, 111‒12, on the comparatively few complaints about ‘bastard feudal’ matters in this period. 109 Partington, ‘Edward III’s enforcers’, 89‒106. 110 Kaeuper, ‘Law and order’, 741. 111 Musson and Ormrod, Evolution of English Justice, 120, 130‒1; Harding, Law Courts, 109‒10; Anthony Musson, ‘Attitudes to royal justice in fourteenth-century Yorkshire’, Northern History 39 (2002), 173‒85, at p. 174; above, p. 83. 112 Musson and Ormrod, Evolution of English Justice, 121.

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of oyer and terminer commissions went hand-in-hand with the creation of a workable new system for maintaining local order would also fit with Maddicott’s well-known account of the feeing of justices. This practice began to be regulated in the 1340s, and seems to have ceased by the 1380s. Feeing justices became redundant once oyer and terminer commissions were in decline; once it was becoming less common to request named justices to hear a particular plea, even before the practice was banned; and once the administration of the justice that affected landowners was firmly in the hands of local sheriffs and JPs.113

VIII Whether this account of bastard feudalism in the fourteenth century stands up or not will not be known until there have been local studies for the first seventy years or so of the fourteenth century that replicate the detailed and systematic attention to local affairs of some of the work on the last decades of the century and on the fifteenth. Most importantly, we need to know whether nobles’ direct and indirect links with local landowners were so extensive as to amount to what, using our later characterisation, we may truly term an affinity. Secondly, if there were indeed noble affinities, did they operate as later ones were to do? Was it normal for significant local officers to have links with the locally powerful nobility, and for such links to be routinely exploited to protect the lands of the members of the affinities and expedite their pleas and, if less frequently, to do the same for their lords?114 And, in this context, do we find such extended involvement of nobles in the land transactions of their followers and in private settlements of disputes, in the areas where their landed power lay, that we may conclude that immediate responsibility for peacekeeping had now moved firmly from the king to the nobility? When it came to local conflict, was it new in the later fourteenth century to use litigation primarily as a means of forcing the other party to an informal settlement? It could be that, until then, the king’s law was still regarded as the normal means of bringing disputes to an end among lesser men, and that conflict among the great was seen as something that the king himself was expected to deal with, promptly and, if necessary, ruthlessly.115 113 J. R. Maddicott, Law and Lordship: Royal Justices as Retainers in Thirteenth- and Fourteenth-Century England, Past and Present Supplement 4 (1978). 114 In the late fourteenth and fifteenth centuries, cases concerning lords tended to come before the king’s council: see for example Harding, Law Courts, 105‒6; Maddern, Violence and Social Order, 206‒25; John Watts, Henry VI and the Politics of Kingship (Cambridge, 1996), 202‒4. 115 Spencer, Nobility and Kingship shows Edward’s readiness to step in when he was displeased by the behaviour of his great men. Edward Powell, ‘Arbitration and the law in England in the late middle ages’, TRHS 5th series 33 (1983), 49‒67, at pp. 54‒5 for

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Edward III’s intervention in the prosecutions of men he felt had let him down might imply that expectations concerning the king still held until c.1370. Regarding the actual practice of law and peacekeeping in the shires up to this date, we have seen that we know very little.116 Our knowledge of lords’ part in the private world of the gentry until the 1360s or 1370s is similarly restricted. Maddicott has shown that there was a measure of interconnectedness through marriage and kinship among Thomas of Lancaster’s followers, and one might well expect that matches were made through meetings in the lord’s household, while retainers might recommend their relatives to their lord. However, Maddicott does not pursue Lancaster’s role in his followers’ lives beyond this, and whether his followers really were ‘a true “affinity”’ in the later sense, as he believes many were, awaits confirmation. Saul notes the strong local connections between Gloucestershire lords, especially the Berkeleys, and their retainers, but does not elaborate further on this subject.117 There is further support for the view that it was only in the 1370s, or perhaps just before, that what we think of as the late medieval dispensation in the shires began to emerge. This lies in the Commons’ comments on local justice and local officers in these decades as recorded in the Parliamentary Rolls. It must be emphasised that these are perceptions and not necessarily reality. Moreover, perceptions in the 1370s and 1380s were undoubtedly coloured by the fact that the massive demands being made for a largely unsuccessful war led the Commons to stipulate that, if the government could not offer external achievement after all this expenditure, it should at least do its job of maintaining internal peace.118 Nevertheless, it is noteworthy that, although complaints about over-assertive crown officers continued, from the mid-1360s there was an increasing volume of protest about exploitation and abuse of the law by local officials or powerful men: such matters as local justices’ favouring of their friends, including the choice of JPs ‘par brocage des meyntenours’, sheriffs’ improper practices at tourns, the maintenance of defendants against plaintiffs by the defendants’ powerful feoffees, and more general allegations of ‘brocage et maintenance’. There were also straightforward complaints regarding disorder in various parts of the realm, which imply a sense of under- rather than over-government.119 Furthermore, it was

116 117 118 119

evidence of lay arbitration increasing ‘dramatically’ after 1350. McLane, ‘Changes in King’s Bench’, 160, for a growing trend towards out-of-court settlement in King’s Bench litigation from the 1320s. Walker, Lancastrian Affinity, has very little about local conflict before the 1370s. Maddicott, Thomas of Lancaster, 58‒61 (quotation at p. 60); Saul, Knights and Esquires, 70‒9. Christine Carpenter, ‘Law, justice and landowners in late medieval England’, Law and History Review 1 (1983), 205‒37, at p. 227. For example PROME, ii, 311‒12, 320, 331, 333, 334, 354, iii, 21, 42, 62‒3, 94, 137, 164, 231; Ormrod, Reign of Edward III, 112‒13.

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in 1376 that noble life shrievalties first came under fire. This implies that previous acceptance of what had been a local contribution to centrist rule had changed to rejection of a means of placing a shire too firmly in the private power of a noble.120 None of this should be read as an outpouring of disgust by upright gentry caught up in a novel stew of corruption and hankering for a return to more interventionist rule, and the Commons still expressed a dislike of centrist commissions, but it was a new form of rhetoric. The locus of corruption and oppression, those favourite words of the Commons, was now not so much central government as local government and local powers.121 It is also arguable that, from the 1370s, legislation and parliamentary petitions concerning the outward identification of bastard feudal lordship, along with the appearance of cheap badges and smaller and more standardised fees, suggest the regularisation of a relationship that was now becoming widespread and commonplace.122

IX To sum up, all the evidence suggests that bastard feudalism for most of the fourteenth century was not the same as bastard feudalism as revealed by studies of nobles and localities in the fifteenth century. When it looks most similar in the period up to c.1370, that is under Edward II and in the great decades of Edward III’s reign, this is deceptive. Under Edward II, nobles and gentry were fire-fighting. Under Edward III, what we see is the king’s exploitation of the local influence and connections of certain key nobles for the purposes of military recruitment and to provide reliable local officers and local order while king, nobles and government were stretched to the utmost by a massive military project. Equally, these were not evolutionary stages towards the fully fledged bastard feudalism of the late fourteenth century. What these two different uses of local power, one by nobles, the other by the king, did reflect is more profound evolutionary changes in the localities, whose roots went back much further. This was a development dating back to the early thirteenth century. More and deeper government ultimately meant more delegation to local landowners, both because they demanded control over governance that was exploiting and directing them to an ever greater degree (on this Putnam was undoubtedly correct), and because it required a 120 PROME, ii, 334. The immediate catalyst for this general request seems to have been the death in 1376 of Arundel, which led to a petition from Shropshire that there should be no more hereditary sheriffs (Ormrod, Reign of Edward III, 112), but this is the first time that hostility to this practice was being voiced. 121 Carpenter, ‘Law, justice and landowners’, 226, 228‒9. 122 Nigel Saul, ‘The Commons and the abolition of badges’, in C. Rawcliffe and L. Clark (eds), Parliament and Communities in the Middle Ages, Parliamentary History 9 (1990), 302‒15. For legislation, see above, pp. 68‒9.

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much larger governmental base and one that was locally resident. Once this delegation was more or less complete, there had to be a local directing force, and, in most areas, this would be the local nobility. The structures of local power and local rule that emerged in the late fourteenth century were the final stage of this development. However, the exact timing was largely a matter of contingency: the substantial increase in government at the lowest level occasioned by the Black Death and its consequences; the relaxation of Edward III’s hold on government from 1360 once he was at peace; new war from 1369 coinciding with a failure of energy at the top, through senility (Edward), illness (the Black Prince) and youthfulness (Richard II). By the time Richard had grasped the situation and decided he did not like it at all, it was too late to put the clock back – though that did not prevent him trying.123

123 This chapter salutes a friendship of many years, during which Jenny Wormald and I have had numbers of fruitful and stimulating exchanges of ideas, crossing the borders of countries and periods.

chapter 4

Tame Magnates? The Justiciars of Later Medieval Scotland HECTOR MACQUEEN 1 The question mark in the title of one of Jenny Wormald’s earliest papers, ‘Taming the magnates?’, was perhaps more provocative when published in 1972 than it might be now.2 The paper challenged the then established view that later medieval Scotland was characterised above all by conflict, often bloody, between a weak Crown and an over-mighty nobility. The arguments – that actually the Crown–nobility relationship was generally ‘close and cooperative’, that the Crown smashed noble families that became too powerful while building up and rewarding those who served the king, and that in general Crown and nobility were allies with a common agenda – still provoke debate; but there can be no return to the point of departure.3 This chapter seeks no more than to highlight a particular contribution to medieval royal government by members of the nobility that, while much more than negligible, has not yet received the attention it deserves.

I Geoffrey Barrow’s seminal study of the Scottish justiciar to c.1306 showed that by the mid-thirteenth century the office was divided regionally, the two most important regions being Lothian and Scotia (the region north of the Forth–Clyde line), and generally held by major figures from the nobility. The justiciar for each region went through it twice annually on circuit, or ayre, holding courts exercising both a criminal and a civil jurisdiction.4 Although 11 I am grateful to Alan Borthwick and Sandy Grant for helpful comments on an earlier draft. Neither is responsible for what I have made of their suggestions. 12 Jennifer M. Brown, ‘Taming the magnates?’, in Gordon Menzies (ed.), The Scottish Nation: A History of the Scots from Independence to Union (London, 1972), 46‒59. 13 See e.g. Michael Brown, ‘Introduction’, in Michael Brown and Roland J. Tanner (eds), Scottish Kingship, 1306‒1542: Essays in Honour of Norman Macdougall (Edinburgh, 2008), 1‒19. 14 G. W. S. Barrow, The Kingdom of the Scots (2nd edn, Edinburgh, 2003), ch. 3.

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a new structure created in 1305 under Edward I with four justiciary regions (Lothian, Galloway, Forth to Mounth, and north of Mounth) certainly came into operation,5 the previous system was revived quickly by Robert I and continued until the beginning of the sixteenth century. During this period, the justiciarships were usually said to be either ‘north’ or ‘south of Forth’.6 The present contribution identifies holders of these offices from the reign of Robert I until the 1513 appointment of Colin Campbell, third earl of Argyll as justiciar general of the whole realm of Scotland north and south of Forth,7 thereby confirming what had in fact been the position since 1501, when the offices north and south of Forth were combined in the person of Andrew, second lord Gray. The list given in the Appendix is, however, incomplete, with many gaps. Witness lists to later medieval royal charters do not designate justiciars as such until the reign of James IV, depriving us of a source of information of great value for the period before 1306. In James’ reign, certain men held the office continuously over a number of years, whereas this was rather unusual earlier in the fifteenth century. Whatever the reason for this, the patchy references to justiciars before 1488 make it difficult to determine the precise succession of office-holders or the duration of their period in office. Thus, as we shall see, Alexander, lord of the Isles and earl of Ross, was justiciar north of Forth between 1439 and 1447, but we do not know when he first came or when he ceased to hold office. He died in May 1449, and the next reference to a justiciar north of Forth after 1443 is in September 1449. It is quite likely that Alexander held the office before 1439 – the last reference to any possible predecessor is in November 1437 – but there is no direct evidence to prove this, or to show that he kept it until his death. Nevertheless the list, if examined by reign, shows that the office was held by royal councillors, often of royal blood, and seldom if ever by persons out of favour with the king, at least when the king was in active control of government. Even in periods of royal absence, minority or other incapacity, the office was held and, it would seem, discharged by men close to the centre 15 E. L. G. Stones (ed.), Anglo-Scottish Relations, 1174‒1328: Some Selected Documents (London, 1965), no. 33; APS, i, 120. See CDS, iii, nos 181, 211 and p. 403 for Adam Gordon’s claim in 1310 and 1311 to unpaid fees for his second, third and fourth years as justiciar of Lothian; G. W. S. Barrow, Robert Bruce and the Community of the Realm of Scotland (4th edn, Edinburgh, 2005), 190 (for English justiciars sitting in Dumfries in March 1306); The Chronicle of Walter of Guisborough (Camden Society, 1957), 378 (commenting that the justiciars’ use of the penalty of outlawry drove many to side with the Bruce revolt in 1306); and Fiona Watson, Under the Hammer: Edward I and Scotland (East Linton, 1998), 216‒17. 16 Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), 58‒65. 17 HMC, iv, 487. For the period after 1513 see Amy Blakeway, ‘Regency in Sixteenthcentury Scotland’, unpublished PhD thesis (University of Cambridge, 2009), ch. 7.

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of power generally. Nor was the justiciarship a sinecure: it involved a period usually of months, rather than days or weeks, on circuit and a heavy diet of cases civil and criminal, as well as giving at least the appearance of good government and justice while bringing much needed revenue to the royal coffers. Governmental self-interest, to put it no higher, dictated that the justiciars should take their duties seriously; they certainly earned the fees and expenses to which they were entitled.8 The offices north and south of Forth may have occasionally been united in the fifteenth century, but clearly this was exceptional and only for the briefest of intervals. For the most part there were two office-holders whose respective jurisdictions were divided by the course of the River Forth, although sometimes in the later fifteenth century pairs of justiciars were appointed for one or other region.

II Just when Robert I began to appoint justiciars is unclear. There is a tantalising reference to David Muschet as justiciar of Fife in May 1306, two months after the king’s inauguration at Scone on 25 March.9 It seems most likely that Muschet was acting under English authority: he had adhered to the English crown in the 1290s,10 while in May 1306 Bruce had scarcely had time or opportunity to begin organising justice ayres, even in friendly territory.11 But there can be no doubt that Robert Keith’s appearances in 1310 and 1312 as a justiciar north of Forth were under the authority of the Bruce, since, although appointed in 1305 as one of Edward I’s justiciars for Scotland,12 from Christmas 1308 he had been ‘one of the [Scottish] king’s indispensable commanders and administrators’.13 Keith’s appointment also manifests the return to the pre-Edwardian twofold division of the justiciary defined by the River Forth. In November 1320 the northern justiciar was Thomas Randolph, earl of Moray, until his death in 1332 perhaps the most important man in Scotland under his uncle the king.14 It is not clear how the post related to Randolph’s 18 See further Archibald A. M. Duncan, ‘The “Laws of Malcolm Mackenneth”’, in Alexander Grant and Keith J. Stringer (eds), Medieval Scotland: Crown, Lordship and Community: Essays Presented to G. W. S. Barrow (Edinburgh, 1993), 239‒73, at pp. 251‒2. 19 See Dunfermline Reg., no. 590 (13 May 1306). 10 See Amanda Beam with others, People of Medieval Scotland, 1093‒1314 (Glasgow and London 2012), http://db.poms.ac.uk/record/person/17775/# (last accessed 31 December 2012). 11 Barrow, Bruce, 194‒9. 12 See Stones, Documents, no. 33; APS, i, 120. Keith’s Edwardian appointment was for the region from the Forth to the Mounth. 13 Miscellany of the Abbotsford Club, vol. i (1837), 53; HMC, v, 626; Barrow, Bruce, 370. 14 Liber Ecclesie de Scon (Bannatyne and Maitland Clubs, 1843), no. 130; Barrow, Bruce,

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regalian powers in his enormous earldom, which by express royal grant in 1312 extended to both the pleas of the crown in criminal matters and pleadable brieves in civil ones; the regality may have enabled justice to be done in more remote areas such as Badenoch, Lochaber and Glenelg that lay beyond the reach of justice ayres typically held at the head burghs of the sheriffdoms.15 No earlier than 1319, William Muschet of Cargill in Perthshire was designed justiciar north of Forth;16 to judge from his being a witness to the Declaration of Arbroath in 1320, a not infrequent witness to royal charters in the 1320s, and present at the ratification of the Treaty of Edinburgh in 1328, he seems to have been a member of the king’s council in that period.17 In the south, a single reference in about 1319 to James Douglas as justiciar of Lothian precedes the long career of Robert Lauder the elder in that office.18 Douglas stood alongside Randolph in the favour and esteem of King Robert,19 while Lauder was ‘raised from obscurity’ to a place of high importance not only as a justiciar but elsewhere in royal government.20 Lauder’s rise, however, may well have begun within the Douglas power base created by the king’s grants to the ‘good Sir James’ of extensive lands in the south of Scotland, in particular in Berwickshire and Lothian.21 The main territorial

15

16 17 18

19 20 21

360‒1, 368, 383, 395; Michael Penman, David II (East Linton, 2004), 22; A. A. M. Duncan, ‘Randolph, Thomas, first earl of Moray (d.1332)’, ODNB. RRS, v, no. 389. See also no. 101. A regality’s jurisdiction was only co-extensive with the justiciar’s by such express grant: P. G. B. McNeill (ed.), ‘Discours Particulier d’Escosse, 1559⁄60’, in W. D. H. Sellar (ed.), Miscellany Two (Stair Society, 1984), 86‒131, at pp. 90‒3. See also MacQueen, Common Law, 51, 53‒4, 55‒6, 112. Moray Reg., cartae originales, no. 18. Geoffrey Barrow (ed.), The Declaration of Arbroath: History, Significance, Setting (Edinburgh, 2003), p. xiii; RRS, v, index s.n. ‘Muschet (Monte Fixo, Montfiquet, Mountfichet, Mufichet), William’; Barrow, Bruce, 336. Melrose Liber, ii, no. 415 (Douglas). For Lauder as justiciar see Dunfermline Reg., no. 352; HMC, Various Collections, v, 8; Calendar of the Laing Charters, 854‒1837, ed. Joseph Anderson (Edinburgh, 1899), no. 27; Melrose Liber, ii, nos 393, 422‒6; Calendar of Writs preserved at Yester House, 1166‒1503, ed. C. C. H. Harvey and J. Macleod (SRS, 1930), nos 19, 24 (misdated); The Blackfriars of Perth, the Chartulary and Papers of their House, ed. R. Milne (Edinburgh, 1893), 18; Registrum Sancte Marie de Neubotle, ed. Cosmo Innes (Bannatyne Club, 1849), no. 149; Registrum Honoris de Morton, 2 vols, eds Thomas Thomson, Alexander Macdonald and Cosmo Innes (Bannatyne Club, 1853), ii, nos 34, 50; J. Raine, The History and Antiquities of North Durham (London, 1852), nos 432, 586; Fraser, Douglas Book, iii, no. 16; RRS, vi, nos 6, 10; Liber Sancte Marie de Dryburgh, ed. W. Fraser (Bannatyne Club, 1847), 274; ER, i, 452; Liber Sancte Marie de Calchou, 2 vols, ed. Cosmo Innes (Bannatyne Club, 1846), nos 477, 479; Registrum Episcopatus Glasguensis, 2 vols, ed. Cosmo Innes (Bannatyne and Maitland Clubs, 1843), i, no. 280. Barrow, Bruce, 369. Barrow, Bruce, 371; Penman, David II, 25. See Morton Reg., ii, no. 13 for Lauder as witness to a charter of William lord of

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bases of Keith, Randolph and Muschet were all in the north; equally the landed interests of King Robert’s southern justiciars lay below Forth. All these individuals belonged to ‘a small group of specially trusted, specially favoured men, who though not personally related to the king were obviously his intimate counsellors, prominent in every department of the royal service, military, diplomatic and judicial’.22 After Robert I’s death in 1329 and the accession of the infant David II, Reginald Cheyne was justiciario at Elgin in 1330.23 This may however have been as justiciar of the regality of Moray (still held by Thomas Randolph), since Elgin was the head place of the earldom according to Randolph’s original grant.24 A passage in Wyntoun describes ‘a justre … held at Invernys’, i.e. the royal burgh, by Randolph as guardian in 1331,25 so it is possible that he was still justiciar north of Forth, or had returned to the office as the most powerful magnate in the region. Wyntoun adds that Randolph sent his coroner to Eilean Donan in Wester Ross in an ultimately successful pursuit of malefactors, showing perhaps the lengthening reach of the royal justiciary under Randolph’s sway.26 Wyntoun also refers to Randolph holding a ‘justry’ at Wigtown in Galloway that year, however, so he may as guardian have decided to drive the more peripheral justice ayres himself as the most effective way of showing that he was in control of the country.27 His success is attested by Wyntoun: Wes nevyr nane in justice lyk Till this Erle in oure kynrik: He sparyd nowthyre for luwe na awe As caus wes to do the lawe.28

22

23 24 25 26 27 28

Douglas 1289 x 1298. See also Michael Brown, The Black Douglases: War and Lordship in Late Medieval Scotland, 1300‒1455 (East Linton, 1998), 23. A Robert Lauder appears as steward of the earl of Dunbar 1289 x 1290 (Melrose Liber, ii, no. 365). Barrow, Bruce, 368‒9 (not however mentioning Muschet). It may be noted here that the appearance of John, son of Adam Bruning as a justiciar specially deputed ad hoc in 1320 (RMS, i, app. 1, no. 67) was not as a ‘subordinate justiciar’ (Barrow, Bruce, 383), but is rather an early example of the special (as distinct from general) commission of justiciary, for which see Hector L. MacQueen, ‘Legal afterword’, in A. A. M. Duncan (ed.), Scottish Formularies (Stair Society, 2011), 364‒5. Other examples in the reign of Robert I are RMS, i, app., no. 74 (APS, i, 479) and RRS, v, no. 435. See also note 168 below. Ane Account of the Familie of Innes (Spalding Club, 1864), 58. For Cheyne as ‘Crown man’, see Penman, David II, 97, 110. RRS, v, no. 389 (p. 634); A. Y. Cheyne, The Cheyne Family in Scotland (Eastbourne, 1931), 40. Chron. Wyntoun (Laing), lines 3188‒9. See also Chron. Bower (Watt), vii, 58. Chron. Wyntoun (Laing), lines 3245‒70. See also Chron. Bower (Watt), vii, 58. Chron. Wyntoun (Laing), line 3210. See also Chron. Bower (Watt), vii, 56. Chron. Wyntoun (Laing), lines 3271‒4. See also Chron. Bower (Watt), vii, 56, 58‒62.

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Presumably Randolph’s Galloway ayre was not conducted as justiciar of Lothian, however, for Sir Robert Lauder continued to hold that office until at least 1337, when, acting as an auditor of the exchequer, he was once again designated justiciar of Lothian.29 But it is uncertain how meaningful the title was by that time. In 1334 most of the territory over which the justiciar of Lothian had jurisdiction was ceded to the English Crown.30 This led to Edward III’s appointment of Sir Robert Lauder the younger, son of the already mentioned Sir Robert, as justitiarius regis Anglie in Laudonia (justiciar of the King of England in Lothian) in June 1334.31 But ‘even if a vestigial English administration … set to work in the ceded counties it was almost immediately displaced’.32 A Scottish rising of gathering strength led to the renewal of hostilities, in Lothian and elsewhere, lasting until 1338;33 this was a period of considerable dislocation and difficulty in the government of Scotland, whether by English or Scottish interests.34 In 1337 and 1338 there were however still English justiciars of Lothian, respectively Anthony de Lucy, the king’s lieutenant in Scotland, and Richard Talbot, the warden of Berwick.35 Their existence may cast doubt on the effectiveness and extent of the elder Lauder’s position as the Scottish justiciar of Lothian.36 Lauder the younger is however referred to as justiciar of Scotia north of Forth in March 1336 and February 1337.37 He had re-established himself on the Scottish side by 1335 when his tenements in the burgh of Berwick were declared forfeit by Edward III.38 The document of March 1336 styling him justiciar of Scotia also designs him lieutenant of the guardian of Scotland (who was almost certainly Andrew Murray by that time),39 while in February 1337 he appears at Falkland alongside such other leaders of the Scottish party as the guardian Murray and William Douglas, then conducting a campaign in Fife.40 Despite his obvious political stature at this time there is no sign that Lauder thereafter played any major role in government, judicial or otherwise, despite his survival until the 1360s. In 1363 an annual pension of twenty 29 ER, i, 452. Lauder became chamberlain in 1333: Penman, David II, 25. 30 Ranald Nicholson, Edward III and the Scots: The Formative Years of a Military Career, 1327‒1335 (London, 1965), 160‒4. 31 Rotuli Scotiae in Turri Londinensi, 2 vols, eds David Macpherson et al. (London, 1814‒19), i, 271; Nicholson, Edward III, 162. 32 Nicholson, Edward III, 167. 33 Nicholson, Edward III, 164 ff; Penman, David II, 53‒66. 34 Nicholson, Edward III, 227‒8. 35 CDS, v, no. 767; CDS, iii, no. 1288. 36 On Lauder the elder in the 1330s, see further Penman, David II, 38, 43, 73. 37 Liber Sancte Thome de Aberbrothoc, 2 parts, eds Cosmo Innes and Patrick Chalmers (Bannatyne Club, 1848‒56), i, no. 290; Spalding Misc., v, 243‒4. 38 CDS, iii, nos 1192‒3; Penman, David II, 210, 297. 39 Arbroath Liber, i, no. 290; Penman, David II, 61. 40 Spalding Misc., v, 243‒4; Penman, David II, 66.

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pounds granted to him by Robert I and to be uplifted from the profits of the justiciary north of Forth was confirmed by David II;41 but this seems to be his only recorded link with the justiciary after 1337. The record of a dispute in the exchequer in the late 1330s shows the sheriff of Aberdeen, William Meldrum, as having been a justiciar, surely north of Forth, in 1335 (i.e. before the younger Lauder’s first appearance in the office), while Adam Buttergask, a royal official, was then the current holder of the office (having perhaps been Lauder’s successor).42 In the accounts of December 1337 it was further noted that Buttergask had held an ayre at Elgin.43 He appears to have been a significant figure in royal government at this period, holding offices such as clerk of the wardrobe and chamberlain depute. In origin a Perthshire man, his landholdings were all in the north, in particular Banffshire.44 By 1339, however, William, fifth earl of Ross had acquired the northern justiciarship, which he held into the 1350s and perhaps until as late as 1358.45 This was despite a challenge in 1344 to his right to hold it, made by Sir John Randolph, second son and the surviving heir of Thomas Randolph, northern justiciar earlier in David’s minority. John abandoned his claim in parliament when he confessed ‘that he had no right to the office of justiciar north of the Scottish sea by way of heritage’.46 Ross was a cousin of David II, his mother having been a sister of Robert I, and he was one of the greatest of northern landowners at this time. The evidence for regular northern ayres in the period has been discussed elsewhere;47 this regularity may be attributable to the hold upon the office north of Forth by one man throughout the period. There is, however, little evidence in the same period of such continuity south of Forth. Despite the re-establishment of normal government there is no mention of justiciars of Lothian in the 1340s, nor, indeed, for most of the 1350s. But for the king’s exemption of Newbattle Abbey from suit at the court of the justiciary of Lothian in 1346,48 it would be tempting to suppose that the dislocation of the 1330s and the continuing incursions of the English into south-eastern Scotland had prevented the re-establishment of the Scottish justiciary below the Forth. 41 42 43 44 45

RMS, i, no. 163; cf. RMS, i, app, no. 1479. ER, i, 436‒9. ER, i, 441, 444. See RMS, i, app. ii, nos 769, 782, 842, 892, 1245. Dunfermline Reg., no. 376; Sir William Fraser (ed.), History of the Carnegies, Earls of Southesk, and of their Kindred, 2 vols (Edinburgh, 1867), ii, no. 36; Registrum de Panmure, ed. J. Stuart (Edinburgh, 1874), 169; ER, i, 543, 546; Registrum Episcopatus Aberdonensis, 2 vols, ed. Cosmo Innes (Spalding and Maitland Clubs, 1845), i, 79‒81. 46 RPS, 1344⁄3. Sir John succeeded his brother Thomas as earl of Moray in 1332 on the latter’s death at Halidon Hill in 1332. 47 MacQueen, Common Law, 62. 48 RRS, vi, no. 101; Cosmo Innes (ed.), Registrum S. Marie de Neubotle (Bannatyne Club, 1849), no. 272.

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III On the return of David II from his English captivity in 1357 the justiciarships again became the subject of royal patronage. Michael Penman has argued persuasively that the dismissal of William, earl of Ross as justiciar north of Forth was confirmed no later than a parliament held at Scone in November 1358.49 Ross may have been succeeded by the same William Meldrum who had been in office in 1335, as he is said in the exchequer rolls to have been justiciar at Cupar (north of Forth) on 25 January 1358.50 But in the same year the exchequer accounts also designate Meldrum as lieutenant to the unnamed justiciar (perhaps Ross?),51 so that it is not quite clear whether or not the other exchequer roll entry is reliable in giving him promotion to the higher position, or when Ross finally fell from grace. However, he was certainly out of favour with David II for the remainder of the reign.52 Robert Erskine first appears as justiciar north of Forth in 1359, and in 1360 he held the office of justiciar of Scotia jointly with Hugh Eglinton.53 It is possible that the description signifies more than ‘north of Forth’ here however, as, even before the fourteenth century, the name ‘Scotia’ was commonly applied to the whole kingdom and not just the regions north of Forth.54 Both Erskine and Eglinton seem likely to have risen to prominence through the entourage of the Steward, from whose territories they came. Certainly Erskine had become chamberlain during the Steward’s lieutenancy between 1347 and 1357.55 But his career under David II, who described him as ‘confederato nostro’ (‘our companion’), was one of startling success.56 He already held extensive northern lands in 1357,57 so his appointment as justiciar north of Forth was consistent with the policy of linking office to local base. The doom (verdict) of a justice court held by Erskine at Dundee was falsed (overturned) by parliament in June 1368,58 so it is possible that he retained the office from 1359 until this time. But by 1370, William Dishington, another of the king’s closest councillors and sheriff of Fife where his main estates lay, had succeeded him.59 49 Penman, David II, 209‒11. 50 ER, i, 562. 51 ER, i, 559; see also ER, i, 546 and Penman, David II, 147, 152, 158, 161, 176, 208, 211, 228, 395, 409. 52 See e.g. Penman, David II, 363‒4. 53 RMS, ii, no. 3717; RRS, vi, no. 230; APS, i, 504 (all Erskine alone); RRS, vi, no. 228; Sir William Fraser, The Red Book of Menteith, 2 vols (Edinburgh, 1880), ii, no. 29. 54 Barrow, Kingdom, 333‒5. 55 Penman, David II, 142. 56 RMS, i, no. 839. See further Penman, David II, 243‒4. 57 See e.g. RRS, vi, no. 198 (the lordship of Garioch). 58 RPS, 1368/6/1. 59 See RRS, vi, no. 9; Penman, David II, index s.n. ‘Dischington, William’.

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In the south, William Douglas held a justice ayre at Edinburgh in 1358 and was presumably justiciar of Lothian at that time.60 In the same year the king made him first earl of Douglas, recognising his territorial dominance over much of southern Scotland. But in 1363 Earl William was involved in a rebellion with the Steward and the earl of March, which probably played a part in a transfer of the office to the faithful Erskine, who is found as southern justiciar at this period.61 Erskine may thus conceivably have united the offices north and south of Forth in the mid-1360s. But when the Steward ascended the throne as Robert II early in 1371, Douglas again became justiciar south of Forth,62 and Erskine, despite his original Stewart connections, was ‘pushed to the fringes of actual power’.63 Extensive southern landholdings and consequent power were obviously important to the royal favour underlying Douglas’ reappointment, perhaps part of a deal under which the earl agreed not to oppose the crowning of Robert II as king.64 Indeed it is just possible that the southern justiciarship remained in the Douglas family from that time until at least the early years of the fifteenth century. If so, this closely parallels the position north of Forth, the justiciarship of which was, as we shall see, more or less a preserve of the Stewarts or their close relations until 1424. But the evidence for a Douglas hold on the southern justiciarship is very limited (although there is virtually no evidence of its being held by anyone else).65 Archibald Douglas (‘the Grim’), who became the third earl in 1388, held an ayre at Dumfries in 1383, but the document recording this fact does not state whether or not it was a justice ayre.66 Even before he achieved the earldom Archibald was a prominent figure in royal government, keeper of Edinburgh castle under David II and a regular name in witness lists to charters of David as well as the first two Stewart kings:67 exactly the type of man who might well have been appointed justiciar. 60 61 62 63 64 65

66 67

ER, ii, 82. Raine, North Durham, no. 326. ER, ii, 394, 462; Raine, North Durham, no. 147. Penman, David II, 415‒16; Stephen I. Boardman, The Early Stewart Kings: Robert II and Robert III, 1371‒1406 (East Linton, 1996), 48. Boardman, Early Stewart Kings, 40‒5. On Douglas’ career see also Penman, David II, index s.n. ‘Douglas, William, lord of Douglas, 1st earl of Douglas (d.1377)’; Brown, Black Douglases, 43‒9, 54‒5, 57‒8. David Stewart, earl of Carrick, eldest son of Robert III, held an ayre at Lanark in 1392 (ER, iii, 311). He was only 14 at the time, and the appointment probably symbolised the end of his pupillarity more than his being a fully-fledged justiciar; but cf. Boardman, Early Stewart Kings, 194‒7. Melrose Liber, ii, no. 485; cf. Fraser, Douglas Book, i, 337. The ayre was not that of the chamberlain, for that office was held by Robert Stewart, earl of Fife and Menteith and later duke of Albany, from November 1382 until March 1407. On Archibald the Grim see Brown, Black Douglases, 53‒71, 76‒92; Boardman, Early Stewart Kings, index s.n. ‘Douglas, Archibald, 3rd earl of Douglas’.

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In 1410, during the Albany governorship, the fourth earl of Douglas, another Archibald, held a justice ayre south of Forth.68 This appointment too must reflect the position of the Douglases as ‘unquestionably the most powerful magnates south of Forth’.69 We know far more about the northern than the southern justiciars in the latter part of the fourteenth century. William Dishington lost not only his justiciarship, but also his position as sheriff of Fife, on the accession of Robert II.70 His successors seem by and large to have been close relations, either by blood or by marriage, of the new Stewart kings. Thus James Lindsay of Crawford, who held office in the early 1370s, was a nephew of Robert II, his mother having been the new king’s half-sister, Egidia, and he himself seems to have been close to John, earl of Carrick, the new king’s heir.71 James was first appointed jointly with, and then succeeded by, his other uncle, Alexander Lindsay of Glenesk, whose second wife, Marjory Stewart, was a niece of Robert II.72 Alexander had also been a significant figure in the government of David II, and Boardman argues that the Lindsay justiciarships, like the Douglas one in the south, were the result of the king settling with major regional magnates in order to gain their support for his succession in 1371;73 but the possible importance of pre-existing family relationships should not be overlooked. Alexander Lindsay remained justiciar north of Forth until at least 1380, and died on pilgrimage in Crete, en route for the Holy Land, in 1382. The next known holder of the office, Alexander Stewart, earl of Buchan (better known to history as the ‘Wolf of Badenoch’), was one of the king’s younger sons and is first referred to as justiciar in February 1387; but he may have held office from the early 1380s, perhaps in direct succession to Alexander Lindsay and over the head of James Lindsay (who had also claimed the Buchan earldom eventually awarded to Stewart in 1382).74 In December 1388, however, Buchan was accused before the king’s council of negligence in the administration of his position, and was accordingly relieved of his duties. The ‘negligence’ lay in a failure to hold courts and ayres ‘when and where he should’.75 He was replaced first by David Lindsay of Glenesk, son 68 ER, iv, 133. On Archibald see Brown, Black Douglases, 95‒121. 69 Ranald Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), 203; and see Brown, Black Douglases, chs 1‒5. 70 Penman, David II, 418; Duncan, ‘“Laws of Malcolm Mackenneth”’, 261‒2. 71 ER, ii, 435, 437, 457; Sonja Cameron, ‘Lindsay family of Barnweill, Crawford, and Glenesk (c.1250–c.1400)’, ODNB. 72 See ER, ii, 435, 458‒9, 620; iii, 30‒1, 652; Laing Charters, no. 65; Spalding Misc., ii, 319; Cameron, ‘Lindsay family’, ODNB. 73 Boardman, Early Stewart Kings, 48; also Penman, David II, index s.n. ‘Lindsay, Alexander, of Glenesk (d.1382)’. 74 Moray Reg., no. 168; Boardman, Early Stewart Kings, 76‒9. 75 RPS, 1388⁄12⁄3; Stephen Boardman, ‘Lordship in the north-east: the Badenoch

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of Alexander Lindsay and a prominent courtier who was to become the first earl of Crawford in 1398. His wife was a daughter of Robert II and accordingly the king would occasionally style him as filius (son).76 Lindsay’s justiciarship was however short; in April 1389, perhaps after the spring ayre, Murdoch Stewart, son and heir of another of the king’s younger sons, Robert Stewart, earl of Fife, was appointed to hold office for one year.77 These events of 1388‒9 throw much light on contemporary perceptions of the justiciarship and its political importance. The council general of December 1388 that dismissed Buchan had also earlier stripped the king’s eldest son, John earl of Carrick, of his guardianship of the realm and conferred it upon his brother Robert, earl of Fife.78 Within a few months of this appointment Fife ensured the passage of the office of justiciar north of Forth to his own heir, Murdoch.79 In December 1388 council had laid down that the new justiciar should be a person who was sufficiens (adequate).80 This was expanded upon at the time of Murdoch’s appointment in April 1389, when it was agreed that ayres north of Forth could not easily (commode) be held at that time ‘without sufficient power’ (sine sufficienti potencia). In consequence Murdoch’s father was enjoined as the guardian of the realm to support him with ‘sufficient power and council’.81 In other words, while ‘regard for provincial differences and entrenched feudal power’82 continued to be important in the appointment of justiciars, the political clout and support of central government was also essential to their success. There may also be some reflection on David Lindsay’s capacity to hold the office successfully since, as already suggested, the events of April 1389 probably followed an earlier ayre presided over by him. But his removal also meant, of course, that the leading supporter of the displaced earl of Carrick as guardian of the kingdom was sidelined. Murdoch Stewart appears to have held two ayres during his year of office, for he can be found acting as justiciar north of Forth in January and November 1390.83 In December 1391 however Walter Stewart, lord of

76

77 78 79 80 81 82 83

Stewarts I: Alexander Stewart, Earl of Buchan, Lord of Badenoch’, Northern Scotland 16 (1996), 1‒29; Alexander Grant, ‘Stewart, Alexander, first earl of Buchan (c.1345– 1405)’, ODNB. On David Lindsay see Alison Cathcart and David Ditchburn, ‘Lindsay family, earls of Crawford (per. c.1380‒1495)’, ODNB; Boardman, Early Stewart Kings, index s.n. ‘Lindsay, David, 1st earl of Crawford, lord of Glen Esk’ and RMS, i, nos 761‒4. Robert III styled him frater: RMS, i, nos 801, 811, 812. RPS, 1389/3/12. RPS, 1388/12/1; Boardman, Early Stewart Kings, 152‒3. Boardman, Early Stewart Kings, 168‒9. RPS, 1388/12/3. RPS, 1389/3/12. Barrow, Kingdom, 109. Spalding Misc., ii, 319; HMC, vii, II, 718.

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Brechin was the king’s justiciar.84 He was a half-brother of the new king Robert III and his guardian, Robert Stewart, earl of Fife, and played a prominent role in the royal council throughout the 1390s.85 But from 1392 on, Murdoch appears to have regained and then maintained a firm grip on the northern justiciarship,86 as well as a high place in the king’s councils. All this ended, however, when he was captured by the English at the battle of Humbleton Hill in 1402. He was to remain a prisoner south of the border until March 1416.87 His duties as justiciar were taken over by his father Robert, now the duke of Albany, who in 1406 received one hundred pounds ‘for office of justiciar, having held five ayres by the time of the account north of the water of Forth’.88 If ayres were held annually at this time, the entry in the exchequer rolls would fit quite neatly into the period from Murdoch’s capture. Robert III died in April 1406. His heir, James I, was a captive in England and for almost the next twenty years supreme power in Scotland rested first in the hands of Albany and then from 1420 in those of his son Murdoch.89 During this period of the Albany governorship, there is very little evidence about justiciars and justice ayres. The reference to the earl of Douglas as justiciar south of Forth in 1410 has already been mentioned,90 and there is also mention of Albany holding an ayre at Stirling (south of Forth) in 1414.91 North of Forth Alexander Stewart earl of Mar, the illegitimate son of the earl of Buchan dismissed as justiciar in 1388, was an active lieutenant of the Albanys, and his role may have included that of justiciar.92 He acquired his earldom in 1404 jure uxoris (i.e. by right of his wife) and, having led the royal army in the battle of Harlaw (1411), he became one of the most powerful figures in the north of Scotland.93

84 HMC, iii, 417. 85 Boardman, Early Stewart Kings, 178, 185; see also below, text with notes 102‒4. 86 Fraser, Menteith, ii, no. 43; Sir William Fraser, The Red Book of Grandtully, 2 vols (Edinburgh, 1868), no. 84*; ER, iii, 316, 347, 376; AB Ill., iii, 263; Moray Reg., no. 180; RMS, i, no. 886; HMC, iv, 495. 87 E. W. M. Balfour-Melville, James I (London, 1936), 22, 25‒6, 65; Michael Brown, James I (Edinburgh, 1994), 17, 19, 20, 26. 88 ER, iii, 644. 89 See further Karen Hunt, ‘The governorship of Robert duke of Albany (1406‒1420)’, in Brown and Tanner (eds), Scottish Kingship, 126‒54. 90 See above, text accompanying note 68. 91 ER, iv, 412. 92 This may be implied in Fraser, Menteith, i, 261‒2. 93 See Michael Brown, ‘Lordship in the north-east: the Badenoch Stewarts I: Alexander Stewart, Earl of Mar’, Northern Scotland 16 (1996), 31‒53; David Ditchburn, ‘Stewart, Alexander, earl of Mar (c.1380‒1435)’, ODNB.

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IV Matters become a little clearer with the return of James I to Scotland in 1424. Robert Lauder of the Bass (East Lothian) and Edrington (Berwickshire), direct descendant in the male line of the Robert Lauders who had been justiciars a century earlier,94 appears regularly in the witness lists of royal charters from 1425 to December 1426 as ‘justiciar’, and from then through 1427 as ‘justiciar south of Forth’. Lauder has been described as ‘among James’s administrative workhorses’, a ‘close councillor’ of the king, and a ‘hard-line royal loyalist’; in 1431 he sat as an auditor of complaints in parliament.95 He is referred to as justiciar of Scotia in 1425.96 Since the usage north or south of Forth was otherwise the norm in the reign of James I, the title here may suggest that Lauder was justiciar for the whole kingdom in 1425. In 1427 and 1428 Patrick Ogilvy appears in the witness lists with equal regularity as justiciar north of Forth. Both Lauder and Ogilvy were also sheriffs, respectively of Lothian and Angus. The former played a part in the negotiations for the release of the king from his English captivity,97 while Ogilvy, a ‘trusted adviser’ to the king, died in his service as an ambassador to France.98 As well as having appropriate local connections therefore, both men were active in diplomacy as well as legal work. This was probably also true of Thomas Somerville, the only other justiciar south of Forth of whom evidence has been discovered in the reign of James I; certainly he ‘acted as a councillor in judicial business, and was also an auditor of causes in parliament’.99 He was also a considerable landowner in Lanarkshire whose son was to become a lord of Parliament in the next reign, and who himself was called the ‘lord of Somerville’ as early as 1430.100 He may have held his office as justiciar from 1428 to 1435, in succession to Lauder. Given the earlier Douglas dominance of the southern justiciarship, it is worth noting that Lauder and Somerville both had strong Douglas connections, so that their rise to office should not necessarily be seen as an 194 The most thorough account of the Lauder descent (although not necessarily reliable) is still C. A. B. Lawder, The Lawders of the Bass and their Descendants (Belfast, 1914), 19‒23. 195 Brown, James I, 27, 47, 51, 53, 57; Brown, Black Douglases, 235; Alan R. Borthwick, ‘The King, Council and Councillors in Scotland, c.1430‒1460’, unpublished PhD thesis (University of Edinburgh, 1989), 30, 33, 37‒9. 196 Laing Charters, no. 81; RMS, ii, no. 29. 197 Balfour-Melville, James I, 93, 96. 198 See Brown, James I, 50, 80, 96, 110; also Balfour-Melville, James I, 162‒3. 199 For his career see Borthwick, ‘Council’, 32, 43‒4; Alan Borthwick and Hector MacQueen, ‘Three fifteenth-century cases’, Juridical Review 31 (1986), 123‒51, at pp. 124 (where however he is described as ‘specially constituted’), 150; Brown, James I, 51. 100 See Alexander Grant, ‘The development of the Scottish peerage’, SHR 57 (1978), 1‒27, at pp. 12‒17.

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anti-Douglas move by James I, despite the king’s uneasy relationship throughout his reign with the fifth earl, who had succeeded his father in 1424.101 We know of two northern justiciars towards the end of the reign of James I. Walter Stewart, the earl of Atholl, Strathearn and Caithness, appears in the office in July 1433 and October 1435.102 An uncle of the king, he had been active politically at the centre of government since the reign of his halfbrother Robert III. This activity, it will be recalled, had included the office of justiciar as early as 1391 when his only title was lord of Brechin.103 But now Walter’s earldoms gave him considerable power and status in the north of Scotland. While conducting the royal ayre in 1433 he took the opportunity also to pause at Logierait and consider a civil case in his regality of Atholl, raised by a pleadable brieve of dissasine that would otherwise have been within his justiciary jurisdiction.104 Alexander Stewart, earl of Mar, who likewise had had a long political career and become an active supporter of the king in the north, held an ayre at Inverness as justiciar, presumably north of Forth, before June 1435, as well as one at Aberdeen at some other unspecified but presumably similar date.105 It may be that Walter resumed the northern justiciarship after Alexander’s death in July 1435, but it is not clear whether he still held it when playing a leading role in the conspiracy leading to the king’s assassination in February 1437. The death of James I led to the lengthy minority of James II. In November 1437, with the fifth earl of Douglas established as the lieutenant-general of the kingdom, we find his cousin James Douglas of Balvenie, earl of Avondale as ‘justiciar of the whole realm of Scots generally constituted’,106 showing again that it was not unthinkable for the offices to be combined in one man. But by 1441, when he had become the seventh earl of Douglas, his office was confined to the regions south of Forth; he probably retained it until his death 101 Brown, Black Douglases, 91, 100, 145, 152, 176 (Lauder); ibid., 178, 263 (Somerville); see also Borthwick, ‘Council’, 34‒6. 102 Charters of the Abbey of Coupar Angus, 2 vols, ed. D. E. Easson (SHS, 1947), ii, no. 128; Inventory of Pitfirrane Writs, 1230‒1794, ed. William Angus (SRS, 1932), no. 24. 103 See above, text with notes 84‒5; Brown, James I, index s.n. ‘Stewart, Walter, earl of Atholl, Caithness and Strathearn, son of Robert II (d.1437)’. 104 Charters of the Abbey of Coupar Angus, ii, no. 128; MacQueen, Common Law, 112, 146. For the earldom of Atholl as a regality see NLS, Adv. MS 34.6.24, p. 39 (note of a royal grant in 1403 but without detail as to the substance of the grant of regality jurisdiction); also Alexander Grant, ‘The Higher Nobility in Scotland and their Estates, c.1371‒1424’ unpublished DPhil thesis (University of Oxford, 1975), 120. See above, note 15, on the relationship of justiciary and regality jurisdictions. 105 ER, iv, 634 (Inverness); vi, 264 (Aberdeen). See further Brown, James I, index s.n. ‘Stewart, Alexander, earl of Mar (d.1435)’. 106 Fraser, Douglas Book, iii, no. 301.

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in 1443.107 Douglas has perhaps been maligned too much by historians as a result of the soubriquet, ‘the Gross’, first attached to him by the later sixteenth-century chronicler, Pitscottie,108 and the way in which he acquired his earldom through the execution of his nephew, the sixth earl, at the ‘Black Dinner’ in 1440 (although James’ presence there may have lent a faint tinge of judicial respectability to the proceedings).109 The records suggest a long career in government: as early as 1405 he was warden of the march and later he was one of the ambassadors who treated for the release of James I from his English captivity. Thereafter, judging from his quite frequent position as a witness to the great seal charters, he appears to have been a loyal (if never fully trusted) servant of the king.110 Douglas became very prominent in the government of the early years of the royal minority in addition to his work as justiciar, which reinvigorated his family’s control of southern Scotland. The same observation holds good for his contemporary as justiciar north of Forth, Alexander MacDonald, lord of the Isles and earl of Ross.111 Alexander’s dominance of the Highlands and islands must have helped the northern justiciarship and the minority regime at the same time, perhaps, as the office reinforced Alexander’s already powerful position in the region. The man who apparently succeeded Douglas in the south was Alexander Livingston of Callendar, whom we find holding an ayre at Dumbarton in 1444.112 He also appears as justiciar of ‘Scotia’ in September 1449, a few months after the death of the lord of the Isles;113 it is possible therefore that he had by then become justiciar of the entire kingdom. By this time Livingston had risen to a supreme position within the minority government, so his occupation of the office of justiciar manifests its high political significance.114 107 Charter chest of the earldom of Wigtown, 1214‒1681, ed. F. J. Grant (SRS, 1910), no. 24 (1442); The Correspondence, Inventories, Account Rolls and Law Proceedings of the Priory of Coldingham, ed. J. Raine (Surtees Society, 1841), 148. 108 Robert Lindesay of Pitscottie, The Historie and Cronicles of Scotland, 3 vols, ed. Æ. J. G. Mackay (STS, 1899‒1911), i, 46. The corpulence that gave rise to the nickname is however attested by the near-contemporary Auchinleck Chronicle: Christine McGladdery, James II (Edinburgh, 1990), 161. 109 The reference to the attendance of ‘James the second beand Justice’ at the Black Dinner in the short chronicle appended to one MS of Wyntoun’s Orygynale Cronykyl (BL, Royal MS 17 DXX, fo. 307, quoted by McGladdery, James II, 130) is surely to James, second earl of Douglas of that name, rather than to King James II. 110 See Brown, James I, index s.n. ‘Douglas, James, lord of Balvenie, earl of Avandale, 7th earl of Douglas (d.1443)’; Brown, Black Douglases, 233‒50, 255‒67; Borthwick, ‘Council’, 32, 45‒6; RMS, ii, reign of James I, witness nos 6, 13 and 25. 111 See Jean and R. W. Munro (eds), Acts of the Lords of the Isles, 1336‒1493 (SHS, 1986), nos 27, 28, 32, 37, 38, 39, 40, 46. 112 ER, v, 249. 113 Rymer, Foedera, xi, 238 (CDS, iv, no. 1216). 114 McGladdery, James II, 14‒54; Borthwick, ‘Council’, 58‒62, 81‒2, 89.

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V The difference in the justiciary after James II overthrew Livingston in late 1449 and assumed active control of government is striking. The offices ceased to be held by one person over long periods of time, and the holders of the office, while clearly king’s men, did not have the same supremacy in government or the territorial dominance enjoyed by Douglas, Livingston and the lord of the Isles in the minority years. Indeed, their territorial links were frequently outside the region in which they acted as justiciars. The pattern also fits with the way in which the king first cut down, then in 1455 destroyed, the power exerted by the earl of Douglas, as well as putting a distance between himself and the lord of the Isles. Andrew, first lord Gray appears as a justiciar in Aberdeen c.1450; he was also master of the king’s household as well as being amongst the assassins of the eighth earl of Douglas on 22 February 1452.115 Sir George Crichton, admiral of Scotland and ‘a demonstrably consistent king’s man’ who became earl of Caithness in 1452,116 appears as justiciar in December 1452, while an entry in the exchequer rolls after his death in 1454 shows him to have been justiciar at Ayr.117 William Sinclair earl of Orkney, chancellor of Scotland 1454‒6, is designated justiciar south of Forth in the contemporary text Ordo Justiciarie.118 Laurence, lord Abernethy in Rothiemay, another lord of parliament and erstwhile Douglas supporter who switched sides after the eighth earl’s killing in 1452, was justiciar south of Forth in March 1455 (despite extensive landholdings in northern as well as southern Scotland), and acted earlier as auditor of causes and complaints in councils general of 1441 and 1450.119 John, lord Lindsay of Byres, another Douglas supporter who changed sides in 1452, was justiciar north of Forth in October and 115 Borthwick, ‘Council’, 496 (citing Aberdeen City Archives, CR 511, p. 751, for which see now Aberdeen Guild Court Records, 133). 116 McGladdery, James II, 154; Annie I. Dunlop, The Life and Times of James Kennedy, Bishop of St Andrews (Edinburgh, 1950), 57; Borthwick, ‘Council’, 131‒4, 496. 117 NLS, Adv. Charter B68; ER, vi, 178. 118 For the Ordo see APS, i, 705; MacQueen, Common Law, 61, 84, 153, 161, 162; Duncan, ‘“Laws of Malcolm Mackenneth”’, 252, 260‒73; Jackson W. Armstrong, ‘The justice ayre in the Border sheriffdoms, 1493‒1498’, SHR 92 (2013), 1‒37, at pp. 9‒13. On Sinclair, note also Borthwick, ‘Council’, 389. 119 Borthwick and MacQueen, ‘Three fifteenth-century cases’, 128, 150; see also APS, ii, 76 for Abernethy as the king’s justiciar. The exchequer rolls for 1455 show Abernethy acting with Sir Robert Livingstone of Drumry as justiciars in the former Douglas regality of Annandale (which had reverted to the king in 1440): ER, vi, 333, 444. Livingstone too sat on the king’s council acting judicially, and had a long political career from the 1440s until the 1460s: Borthwick, ‘Council’, 65‒7, 296. William lord Somerville acted as justiciar in Annandale earlier in the 1450s: ER, v, 670 (see further Borthwick, ‘Council’, 296).

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November 1457, having become a lord of parliament by May 1452 and also having been an ambassador and sat judicially on the king’s council.120 His main lands, Byres and Abercorn, were both south of Forth, so his appointment in the north was an innovation. Another lord of parliament, Andrew Stewart, lord Avondale, is designated justiciar south of Forth when witnessing two royal charters in May 1458.121 The illegitimate son of the elder son of Murdoch Stewart, duke of Albany (a justiciar in the 1390s), and, like Gray, a participant in the assassination of the earl of Douglas in 1452, he rose rapidly through the royal household, receiving a knighthood, the formerly Douglas barony of Avondale in Lanarkshire and his lordship of parliament, before becoming warden of the west march in 1459 and chancellor in 1460, just before James II’s death at Roxburgh in July that year.122 Avondale continued to act as justiciar south of Forth during the minority of James III, holding an ayre at Dumfries between 1460 and 1464, and another at Ayr in 1460.123 Clearly an indispensable royal administrator, he would remain chancellor until 1482. Lindsay of Byres also continued to hold office during the minority, being again justiciar north of Forth in June 1466.124 There were, however, experiments in justiciary arrangements during the James III minority (which lasted until November 1469). Although Gilbert, lord Kennedy appears as a solo justiciar in the treason trial of the earl of Rothes in Edinburgh in October 1464125 (at the time when, as nearest male agnate, he was custodian of the young king), two justiciars were quite frequently appointed to hold ayres jointly on other occasions south of Forth, both before and after 1464.126 Thus in February 1461 Colin Campbell, first earl of Argyll and master of the royal household127 and Robert, lord Boyd, then best known as lord of parliament and long-standing servant of the 120 Dunfermline Reg., no. 452; AB Ill., iv, 205; Spalding Misc., v, 264‒5. See further Grant, ‘Scottish peerage’, 13; Borthwick, ‘Council’, 224, 312 note 166. 121 NRS, Papers of the Montgomerie Family, Earls of Eglinton, GD3⁄1⁄1⁄41⁄5; Charters of the Royal Burgh of Ayr (Ayrshire and Wigtonshire Archaeological Association, 1883), no. 19. I owe these references to Alan Borthwick. 122 Alan R. Borthwick, ‘Stewart, Andrew, Lord Avondale (c.1420‒1488)’, ODNB. 123 ER, vii, 281; Muniments of the Royal Burgh of Irvine, 2 vols, ed. J. Shedden-Dobie (Ayrshire and Wigtonshire Archaeological Association, 1890‒1), i, no. 13. 124 Dunfermline Reg., no. 458. 125 HMC, iv, 507; see also RMS, ii, no. 812. 126 There were precedents: e.g. the joint appointments of Robert Erskine and Hugh Eglinton as justiciars of Scotia in 1360 (Fraser, Menteith, ii, no. 29; RRS, vi, no. 228) and of James Lindsay of Crawford and Alexander Lindsay of Glenesk north of Forth in 1373 (ER, ii, 435). For examples before 1300 see Barrow, Kingdom, 103‒4. 127 See Stephen Boardman, The Campbells, 1250‒1513 (Edinburgh, 2006), 166‒258 on Argyll’s career.

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crown,128 held court together at Dumbarton as ‘justices’ south of Forth.129 Argyll’s landed interests lay primarily north (and west) of Forth, so his appointment again points to the decreasing significance of the location of a justiciar’s main estates. In January 1465, two lords of parliament, William, lord Abernethy in Rothiemay and William, lord Borthwick held an ayre together at Jedburgh as ‘justices on southhalffe Forthe’.130 In January 1466 William Edmonstone of Duntreath and Gilbert Kennedy of Bargany, respectively half-brother and cousin of Gilbert lord Kennedy,131 were together justiciars south of Forth ‘generally constituted’ at Ayr.132 Such arrangements seem to have been abandoned, however, after Robert, lord Boyd and his brother Alexander seized control of the young king in a coup displacing Lord Kennedy in July 1466. In January 1467 Edmonstone of Duntreath was the only justiciar south of Forth,133 and in October 1468 Robert, first lord Lyle was alone as justiciar in an ayre at Dumfries.134 But in March 1471, with James III now in control of government, Edmonstone acted jointly with Master David Guthrie of that ilk at Edinburgh.135 Perhaps Guthrie was serving a form of apprenticeship, for by November 1472 he was the sole justiciar south of Forth generally constituted at Ayr, albeit with as powerful a figure as the earl of Argyll as his depute.136 The experiment of appointing one man to hold the justiciary for the entire kingdom may have been renewed, for in 1473 Guthrie appears as justiciar ‘of Scotia’ or ‘of the realm’.137 His successful career as a ‘graduate laird’, who held numerous other important offices between 1461 and his death in 1474, is well known. He was the first justiciar with a university degree, albeit in arts, and was an active court pleader.138 128 Norman Macdougall, James III (2nd edn, Edinburgh, 2009), 68‒9. 129 Wigtown Charter Chest, no. 31. 130 NRS, Lord Advocate’s Department Writs, AD 1/60, printed Borthwick and MacQueen, ‘Three fifteenth-century cases’, 136. 131 The Kennedys of Bargany descended from an uncle of Gilbert, lord Kennedy: Hector L. MacQueen, ‘Survival and success: the Kennedys of Dunure’, in Steve Boardman and Alasdair Ross (eds), The Exercise of Power in Medieval Scotland, c.1200‒1500 (Dublin, 2003), 67‒94, at p. 87. 132 Irvine Muniments, i, no. 13. 133 Morton Reg., ii, no. 223. 134 APS, ii, 94. 135 HMC, xiv, III, 27. 136 Irvine Muniments, i, no. 13. 137 NRS, Rollo of Duncrub Muniments, GD 56/11. See also Facsimiles of National Manuscripts of Scotland, 3 vols, eds Joseph Robertson, Cosmo Innes and Sir William Gibson-Craig (London, 1867‒71), ii, no. 71 (misattributed to the reign of James II), showing Guthrie, ‘justiciar of our kingdom’, being sent on embassy to the king of France, probably in early summer 1473: Macdougall, James III, 119; TA, i, 66, 68. 138 See Alan R. Borthwick and Hector L. MacQueen, ‘“Rare creatures for their age”:

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It is also just possible that Edmonstone of Duntreath combined the southern and northern offices before Guthrie did, as the former appears as justiciar north of Forth in Perth in November 1470,139 just a matter of months before he appeared as justiciar south of Forth with Guthrie in March 1471. Edmonstone had an even longer career as a James III loyalist than Guthrie, lasting until his death in 1487, and including being elected to the parliamentary committee falsing dooms in 1478.140 He may have been brought into royal government work during the king’s minority by association with his brother-in-law Andrew, lord Avondale, whose claim to the Lennox earldom he supported in return for his own barony (Duntreath, lying within the old earldom lands) being kept independent of the earl’s jurisdiction as it had been since James I’s dismemberment of the earldom in 1425.141 Edmonstone’s mother Mary Stewart was a legitimate daughter of King Robert III, so that through her he was also related to the king himself as well as more closely to Gilbert, lord Kennedy, the offspring of another of Mary’s four marriages.142 Apart from a possible reference to Thomas lord Erskine acting at Stirling in 1474,143 and another in 1478 to ‘my lord of Albanyis justice are’ (an ayre held probably at Jedburgh by the king’s brother, Alexander duke of Albany),144 there is no evidence for the justiciars south of Forth for the years between 1472 and Archibald, earl of Angus being forced to resign the office in 1483.145 This last, however, should not be taken as an indication of a failure by Angus to discharge his duties properly. One of the leaders of the opposition party led by the disaffected Albany that precipitated the crisis with James III at Lauder in July 1482, there is every reason to suppose that he acquired the office in consequence, as for a long time before the crisis he had been out of favour with the king. Indeed, he possibly went on ayre in the autumn of 1482 since his name is conspicuous by its absence from the witness lists of royal charters during that time. Angus’ dismissal came after James III regained full authority. The next clear reference to the justiciary south of Forth, in 1485,

139 140 141 142 143 144 145

Alexander and David Guthrie, graduate lairds and royal servants’, in Barbara E. Crawford (ed.), Church, Chronicle and Learning in Medieval and Early Renaissance Scotland (Edinburgh, 1999), 227‒33. NRS, Register House Charters, RH6/428. I owe this reference to Alan Borthwick. RPS, 1478⁄6⁄4. See Macdougall, James III, 139; HMC, Various Colls, v, 79‒80; Sir William Fraser, The Lennox, 2 vols (Edinburgh, 1874), ii, no. 64. Mary Stewart (d.c.1458) was married to George Douglas, first earl of Angus (d.1403), Sir James Kennedy of Dunure (d.1406), Sir William Graham of Montrose (d.1424) and Sir William Edmonstone first of Duntreath (d.1460). TA, i, 53. Acts of the Lords of Council in Civil Causes, 1478‒1495, ed. Thomas Thomson (Edinburgh, 1839), 14. APS, xii, 33.

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once again shows two king’s men acting jointly, the veteran Andrew, lord Avondale and Robert, second lord Lyle.146 North of Forth, however, there is no evidence for the appointment of joint justiciars for almost the whole of the reign of James III. Robert, first lord Lyle held an ayre in 1471 alone at Cupar, where, in 1478, John Haldane of Gleneagles held another ayre.147 George Gordon, earl of Huntly was appointed justiciar north of Forth in October 1479 and was apparently still in office in 1482.148 The ayre of Fife in 1487 was however held by David Lindsay earl of Crawford, trusted servant of James III as master of the royal household and chamberlain from the early 1480s.149 It looks as though the rather wavering practice south of Forth did not affect the northern office. We may therefore look in a new light at an act of parliament in October 1487 stating that one or two justice generals were to be made south and also north of Forth.150 This places matters in the south on a statutory footing and considers desirable the extension of practice there to the north. Further acts in January 1488 effectively commanded double appointments on both circuits.151 David Lindsay, earl of Crawford and George Gordon, earl of Huntly, both past holders of the office, were to be justiciars north of Forth. Two names were to be selected from a list of four for the southern office. Only one of these four, Robert, second lord Lyle, had previously been a justiciar. But two others, John, lord Glamis and John, lord Drummond, were to have long careers as justiciars under James IV. The last of the four, John Ramsey, lord Bothwell, was designated as a royal justiciar along with Lyle immediately after the passage of the 1488 act, but, having been a favourite of James III, he did not attain similar heights in the next reign.152

VI The justiciars of James III were generally government men, significant counsellors of the king: clearly so with such as Avondale, Argyll, Crawford, Edmonstone, Guthrie, Huntly, and Lyle, and probably with Haldane as 146 Charters and Documents relating to the Burgh of Peebles, 1165‒1710, ed. William Chambers (Scottish Burgh Records Society, 1872), no. 16. 147 Acts of the Lords Auditors of Causes and Complaints, 1468‒1494, ed. Thomas Thomson (Edinburgh, 1839), 12 (Lyle), 66 (Haldane). 148 The Records of Aboyne, 1230‒1681, ed. Charles, marquis of Huntly (New Spalding Club, 1894), 401; The Book of the Thanes of Cawdor, 1236‒1732, ed. Cosmo Innes (Spalding Club, 1859), 63. 149 NRS, Acta Dominorum Concilii, CS 5⁄16, fo. 6; Society of Antiquaries Writs, GD 103/2/42. 150 RPS, 1487/10/6. 151 RPS, 1488/1/13 and 14. 152 Macdougall, James III, 298‒301.

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well.153 Similar observations hold good for the justiciars of the next reign. Moreover, because the office-bearers were so often designated as justiciar in the witness lists of royal charters under the great seal, their periods of office can be ascertained.154 From 1488 to 1495 there were normally only two justiciars, but there is no indication of a geographical division of work. Throughout that period John Lyon, third lord Glamis, a graduate probably of Paris although in arts rather than law,155 acted as one of the justiciars. His first colleague was Robert, lord Lyle, but after involvement in a rebellion in early 1489 he was dismissed.156 John, lord Drummond then held office until 1491 when Lyle, restored to favour,157 was given back his former position, which he retained until 1495. The earliest surviving justiciary records show Lyle holding the justiciary court at Lauder and Jedburgh in November 1493 jointly, not with Glamis, but with Laurence, lord Oliphant.158 That may have been a temporary expedient to meet some difficulty elsewhere, for in February and March 1495 the records describe Lyle and Glamis as justiciars south of Forth. This however may have been at the close of their careers in the offices, as their depute, John lord Drummond seems to have been the man who actually presided over the ayre.159 From 1494 Drummond was constantly designated justiciar in the great seal charters, so perhaps he acted then north of Forth. The only person so designated from 1495 to 1497, he was possibly sole justiciar for that period. In 1498 he was described as justiciar both north and south of Forth generally constituted.160 By that time, however, his career was at an end, and he is not heard of again as a justiciar. In 1497 Andrew, second lord Gray was a justiciar alongside Drummond, being joined in 1499 by George, earl of Huntly, now the chancellor. Huntly died in 1501 and Gray continued thereafter as the only justiciar. In 1504 he was described as ‘justice general of the whole realm of Scots’.161 He can be regarded as the first real justice general; the office was never again divided, either regionally or between individuals.

153 See Macdougall, James III, passim. 154 The other sources that can be relied upon for this period are the justiciary records (surviving from 1493: NRS, JC1/1), the Exchequer Rolls, and the Treasurer’s Accounts. 155 See Alan R. Borthwick, ‘Lyon, Patrick, first Lord Glamis (c.1400‒1460)’, ODNB. 156 Norman Macdougall, James IV (Edinburgh, 1989), 64‒76. 157 Macdougall, James IV, 80‒1. 158 NRS, JC1/1, fos 1r., 7r. See further Armstrong, ‘Justice ayre in the Border sheriffdoms’, 3‒8. 159 NRS, JC1/1, fos 18r., 29r. 160 ER, xi, 316*. 161 RPS, A1504/3/148.

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VII Glamis, Lyle, Drummond and Gray were all key men in the administration of James IV.162 The same is also true of Oliphant, and of Huntly, whose importance is sufficiently shown by his appointment to the chancellorship in 1497.163 Huntly and (to a lesser extent) Lyle apart, all had been frustrated in career ambitions under James III and had taken the side of James IV in the struggle leading to Sauchieburn in 1488.164 All, however, had held judicial positions other than that of justiciar under James III. Glamis, Oliphant, Drummond and Lyle acted as auditors of causes and complaints in the parliaments of James III, while Gray was sheriff of Forfar and, under James IV, a fairly regular member of the king’s council in its judicial sessions.165 Lyle and Drummond (as the lord of Stobhall) were members of a parliamentary committee appointed to examine the law of purpresture in 1482.166 Thus it is quite apparent that all these men were seen as having talents for judicial and legal work. It would be wrong to suppose that they lacked legal skills and knowledge or were unable to tackle the work falling to their lot. Quite apart from the fact that in general the justiciars themselves were members of the king’s government in other capacities, they frequently received support on their ayres from their fellow royal councillors.167 There are also numerous examples of deputes holding courts on their behalf, who appear usually to have been men less involved in the office of central government than their principals, yet still landowners of local prominence.168 Justiciars north and south of Forth seem each to have had a clerk in the midfourteenth century. Thus Adam Forrester was appointed to ‘the office of clerk 162 See Macdougall, James IV, index s.nn. ‘Glamis, John Lyon, 3rd Lord’, ‘Lyle, Robert, 2nd Lord’, ’Drummond, John, of Cargill, 1st Lord Drummond’ and ‘Gray, Andrew, 2nd Lord’. 163 Macdougall, James IV, index s.nn. ‘Oliphant, Laurence, 1st Lord’ and ‘Gordon, George, 2nd earl of Huntly’. 164 Macdougall, James III, 336, 338, 340. 165 Trevor M. Chalmers, ‘The King’s Council, Patronage and the Governance of Scotland, 1460–1513’, unpublished PhD thesis (University of Aberdeen, 1982), 180‒3, 459, 462. For Gray as sheriff of Forfar see RMS, ii, nos 1806, 2257; ER, xi, 330*. 166 RPS, 1482⁄3⁄21. 167 MacQueen, Common Law, 64. See also for the 1450s Borthwick, ‘Council’, 193‒4, 384. 168 For references to ‘lieutenants’ of the justiciar early in the fourteenth century see BL, Add. MS 33245, fos 156v.–157r.; Fraser, Southesk, ii, no. 36 and ER, i, 558‒9. From c.1360, references are to the justice-depute: ER, ii, 438; Pitfirrane Writs, nos 16, 22; Peebles Chrs, no. 16; Moray Reg., no. 203; The Protocol Book of James Young, 1485‒ 1515, ed. Gordon Donaldson (SRS, 1952), nos 725, 962, 1211. See also on Sir Walter Moigne as possibly depute justiciar to Robert Erskine in the 1360s, Duncan, ‘“Laws of Malcolm Mackenneth”’, 262‒70.

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of the rolls of the justiciary south of Forth’ in 1362169 and in 1366, as clerk of the rolls, he inserted a process in the justiciary rolls, having affixed the seal of the justiciary of Lothian to it.170 He was therefore in attendance upon the court and kept its records and seal. In 1374 Alan Lauder, a descendant of the Robert Lauders who had been justiciars under Robert I and David II, received a pension of ten pounds for his labours ‘in the office of the clerk of the rolls of the justiciary south of Forth’.171 Alan was a trusted adherent of the first earl of Douglas, southern justiciar at the time.172 In 1369 William Chalmer was granted ‘the office of clerk of the rolls of the justiciary north of Forth’.173 By 1380 Chalmer was designated simply as ‘justice clerk of our lord king’,174 and in 1398 he was still ‘the justice clerk’,175 without any particular geographical limitation to the office being apparent. He was also secretary for a time to the Wolf of Badenoch, but clearly his appointment as justice clerk comfortably straddled his master’s period as justiciar north of Forth c.1382‒8, suggesting that in his hands at least the subordinate office was less vulnerable to the changeable weather of higher politics.176 If however Chalmer did become the sole justice clerk, this did not establish the office on those lines. The Paris graduate Master Alexander Guthrie was clerk of the justiciary under Walter Stewart earl of Atholl, justiciar north of Forth, in October 1435.177 By the middle of the fifteenth century there appear to have been ‘justice clerkis’,178 one perhaps being Robert Nairn, steward of the king and depute chamberlain.179 In 1473 James III appointed his familiar armigerum (esquire) William Haket of Belses (Roxburghshire) clerk of justiciary south of Forth; this must have been a reappointment, for Haket had held the office in 1465.180 R. K. Hannay was probably correct to suggest that 169 170 171 172 173 174 175 176

177 178 179 180

RMS, i, no. 100 and note; cf. RMS, i, app. 2, no. 1461. Raine, North Durham, no. 326. RMS, i, no. 456; HMC, v, 611. For his descent, see Lawder, Lawders of the Bass, 19‒23. Brown, Black Douglases, 83, 165, 168‒70. RMS, i, no. 295. Moray Reg., no. 159. Moray Reg., p. 210. See above, pp. 102‒3; MacQueen, Common Law, 55, 81; Alexander Grant, ‘The Wolf of Badenoch’, in W. D. H. Sellar (ed.), Moray: Province and People (Edinburgh, 1994), 143‒61, at p. 147; Duncan, ‘“Laws of Malcolm Mackenneth”’, 269. See also D. E. R. Watt, A Biographical Dictionary of Scottish Graduates to AD 1410 (Oxford, 1977), 76‒8. NLS, Pitfirrane Writs, Charter 6024, noted by Borthwick and MacQueen, ‘“Rare creatures”’, 228. Note too that Guthrie was earlier (in 1428) secretary to Sir Patrick Ogilvy sheriff of Angus, at a time when Ogilvy was also justiciar north of Forth. RPS, 1450/1/27. ER, vi, 98. Note also Mark Haliburton as justice clerk of the forfeited Douglas lordship of Galloway in 1457 (ER, vi, 353). For him see Borthwick, ‘Council’, 161. RMS, ii, no. 1119; NRS, Lord Advocate’s Department Writs, AD1/60.

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the final emergence of a single ‘justice clerk general’ came later in the reign, and it seems likely that the first holder of the office was Richard Lawson, one of the most prominent lawyers of his time; here we may note in particular his membership of the parliamentary committee appointed to examine the law of purpresture in 1482.181 It is probable that legal skills and knowledge were similarly required of his predecessors. There can be little doubt that in consequence such skills were readily available to the justiciars, and there is every reason to suppose that they themselves did not lack them. Indeed these may well have enabled rises from relative provincial obscurity to great national prominence. Men like the first Robert Lauder, Robert Erskine, Andrew, lord Avondale and John, lord Drummond are good examples but surely not the only ones. There is a temptation to make something of the general disappearance of earls from the justiciarship, but it is too easy to suppose that this reflects a change in the nature of the office from a possession of the upper ranks of the nobility to one occupied by ‘professionals’. Those fourteenth- and fifteenth-century earls who were justiciars were, like their lesser colleagues, also generally active elsewhere in government; they were ‘political’ earls. Equally the politically ascending Drummonds, Lyles and Avondales of the later fifteenth century have equivalents in earlier periods – the Randolphs, Lauders, Erskines and Somervilles. What is striking, however, is that before the reign of James III men like these tended to ‘arrive’ under the personal rule of kings previously hobbled by war, minority, captivity abroad or some combination of these things: most notably Robert I, David II, James I and James II. During guardianships, lieutenancies and governorships before the minority of James III, the justiciarships tended to be held – or acquired – by magnates whose territorial power bases enabled them to exert meaningful control over their regions, such as the Douglases south of Forth and various branches of the Stewarts in the north. This was also the situation that seemed to develop under Robert II and Robert III, when first the former was disabled by age and then the latter by a horse’s kick before he even became king, and the earl of Fife, later first duke of Albany, took charge of government. Whether intentionally or not, James I’s cutting down of his own Stewart family, and his son’s destruction of the Douglases, together changed permanently not only the overall structure of the Scottish nobility,182 but also the extent to which a large landed power base either north or south of Forth was 181 R. K. Hannay, ‘The office of the justice clerk’, Juridical Review 48 (1936), 311‒29, at p. 313; Chalmers, ‘King’s Council’, 188‒9, 245‒6; John Finlay, Men of Law in PreReformation Scotland (East Linton, 2000), index s.n. ‘Lawson, Richard, of Hie Riggs, advocate and lord justice clerk’; and see RPS, 1482/3/21 for the purpresture committee. 182 See on this theme Brown, ‘Taming the magnates?’, 51‒5.

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of importance to the effectiveness of the justiciary. A local base clearly did not matter very much to the justiciars in the minority of James III (although this might be linked to the experiment at that time of appointing pairs of justiciars south of Forth), or in his or James IV’s periods of personal rule. It is true that the earls of Huntly and Crawford, who held office north of Forth at different times between 1479 and 1500, were important landowners there; but otherwise the local power base seems not to be especially relevant. All later medieval justiciars, earls or not, were of course landowners; officers of law, in the words of a statute of 1424 echoed in 1487, needed to have ‘sufficient of their own’ in order to function in accordance with the expectations of contemporary society.183 But where their lands lay, and their extent, mattered less by 1513 than it had a century before. The justiciars of the fourteenth and fifteenth centuries were not ‘professional’ judges as we would recognise that term today, spending their working lives acting solely in a judicial capacity. If they were of any profession it was that of ‘politician’ or ‘civil servant’; and evidently being a justiciar was one of the prizes of a political career. Especially in the fifteenth century, many held office for short periods – say for a year, or perhaps only for one ayre – but not infrequently more than once in their careers. Justiciarships appear therefore to have been delegated from time to time to members of the king’s council. Although some held office for longer, justiciars were indeed a ‘part-time, lay magistracy’.184 But it need not follow that they merely masqueraded as judges. As Bruce McFarlane put it: ‘We are entitled to believe that those who appeared to function did so until the contrary is proved’.185 If we ask how these men came to be part of the king’s government and why specifically they rather than many available others were appointed, the answer must be their deemed fitness for the task by the standards of the time – whatever those may have been and however different from our own or those of other countries then and now.

183 RPS, 1424/6; 1487/10/6; cf. 1388/12/3, 1389/3/12. 184 Thomas M. (Lord) Cooper, Selected Papers, 1922‒1954 (Edinburgh, 1957), 227. 185 K. B. McFarlane, The Nobility of Later Medieval England (Oxford, 1973), 229‒30.

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Appendix: Scottish Justiciars, c.1306‒1513 Dates

South of Forth

Dates

North of Forth

1316 x 1319

James Douglas

1310‒12

Robert Keith

1319 x 1333

William Muschet of Cargill

1320‒32

Thomas Randolph, earl of Moray, lord of Annandale and Man

1335

William Meldrum

1336‒7

Robert Lauder ‘the younger’

1337

Adam Buttergask

1339‒58

William, 5th earl of Ross

c.1319–c.1337 Robert Lauder ‘the elder’/‘the father’

Ante 1360‒3

William Douglas, 1st earl of Douglas

1358

(?) William Meldrum

1366

Robert Erskine

1359–c.1368

Robert Erskine (and Hugh Eglinton 1360)

1370

William Dishington

Ante 1373

James Lindsay of Crawford (with Alexander Lindsay of Glenesk)

1373‒80

Alexander Lindsay of Glenesk

c.1382‒88

Alexander Stewart, earl of Buchan

1389

David Lindsay of Glenesk

1389‒90

Murdoch Stewart

1391

Walter Stewart, lord of Brechin

1392‒1401

Murdoch Stewart

1402‒6

Robert Stewart, duke of Albany, earl of Fife and Menteith

1371‒4

1383

1392

William Douglas, 1st earl of Douglas

Archibald Douglas ‘the Grim’, lord of Galloway

(?) David Stewart, earl of Carrick

THE JUSTICIARS OF LATER MEDIEVAL SCOTLAND

Dates

South of Forth

1410

Archibald Douglas, 4th earl of Douglas

1414

Robert Stewart, duke of Albany, earl of Fife and Menteith

1425‒8 1428‒35

119

Dates

North of Forth

Robert Lauder of the Bass and Edrington

1427‒8

Patrick Ogilvy

Thomas Somerville of Carnwath

1433‒5

Walter Stewart, earl of Atholl, Strathearn and Caithness

c.1435

Alexander Stewart, earl of Mar

1439‒49

Alexander, lord of the Isles, earl of Ross

c.1450

Andrew, 1st lord Gray

1457‒66

John, lord Lindsay of the Byres

1437‒43

James Douglas of Balvenie and Abercorn, earl of Avondale, 7th earl of Douglas

1444‒9

Alexander Livingstone of Callendar

1452‒4

Sir George Crichton, earl of Caithness, admiral of Scotland

1454 x 1456

William Sinclair, earl of Orkney

1455

Laurence, lord Abernethy in Rothiemay

1458–c.1460

Andrew Stewart, lord Avondale

1461

Colin Campbell, 1st earl of Argyll and Robert, lord Boyd

1464

Gilbert, lord Kennedy

1465

William, lord Abernethy in Rothiemay and William, lord Borthwick

1466

William Edmonstone of Duntreath and Gilbert Kennedy of Bargany

120

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Dates

South of Forth

Dates

North of Forth

1467

William Edmonstone of Duntreath

1468

Robert, 1st lord Lyle

1470

William Edmonstone of Duntreath

1471

William Edmonstone of 1471 Duntreath and Master David Guthrie of Kincaldrum

Robert, 2nd lord Lyle

1472‒3

Master David Guthrie of Kincaldrum

1474

Thomas, 2nd lord Erskine

1478

Alexander Stewart, duke of Albany

1478

John Haldane of Gleneagles

1482‒3

Archibald Douglas, 5th earl of Angus

1479‒82

George Gordon, 2nd earl of Huntly

1485

Andrew Stewart, lord Avondale and Robert, 2nd lord Lyle

1487‒8

David Lindsay, 5th earl of Crawford

1488

Robert, 2nd lord Lyle and John Ramsay, lord Bothwell

1488

David Lindsay, 5th earl of Crawford and George Gordon, 2nd earl of Huntly

1488‒9

John, lord Glamis and Robert, 2nd lord Lyle

1489‒91

John, lord Glamis and John, lord Drummond

1491‒5

John, lord Glamis and Robert, 2nd lord Lyle

1495‒7

John, lord Drummond

1497‒8

John, lord Drummond and Andrew, 2nd lord Gray

1499‒1501

Andrew, 2nd lord Gray and George Gordon, 2nd earl of Huntly

1501‒13

Andrew, 2nd lord Gray

Names in italic are those of justiciars whose jurisdiction may have extended over the whole kingdom rather than either north or south of Forth.

chapter 5

King, Lords and Men in Renaissance England: The Poetry of John Skelton JOHN WATTS This chapter relates to the work of Jenny Wormald in two rather different ways. First of all, the choice of ‘Renaissance England’ in the title picks up Jenny’s invocation of ‘Renaissance Scotland’ – the title for the first part of Court, Kirk and Community, and a characteristically daring one, conjuring a world of Latinate learning, eloquent persuasion, courtly exuberance and contact with Europe in a period then still seen in ‘thud-and-blunder’ terms; or, as Jenny put it, ‘fallow’, ‘dreary’, ‘the bread and butter between two layers of jam’.1 Jenny showed that the kingdom of Scotland in the period 1470‒1542 had a particular kind of identity and dynamic, and I hope, in the following pages, to suggest the same for the kingdom south of the Border in the period when John Skelton was writing, from the late 1480s to the mid-1520s. The second connection is more personal and parochial: happy memories of my first experience of Oxford Further Subject teaching in the late 1990s, in classes on ‘Literature and Politics in Early Modern England’, sitting alongside Jenny in the faded grandeur of the Lady Brodie Room at St Hilda’s College, Oxford. Having established her right to smoke with a silencing glare at the undergraduates, Jenny would lead the discussion with a series of shrewd and pithy observations, while I, like any tyro, would run on verbosely about the three or four things I knew. The series of classes started with a bang – More’s Utopia and some of his other writings – but, before the students could embark on the delights of Sidney, Spenser and Shakespeare, there were the Tudor court poets to get through, and here things tended to slow down. While Thomas Wyatt normally elicited some animated responses, and the earl of Surrey could be despatched more quickly than Henry VIII managed, the class began with Skelton – difficult, inelegant, and very foreign to students who wanted to study a sixteenth century lit up by Italy, not blasted from Norfolk. Things would dip, and the students would look nervous, as, for once, Jenny and I would disagree. My great mistake, it seemed, was to take Skelton seriously and to see him as important, and – now with more reading behind 11 Jenny Wormald, Court, Kirk and Community: Scotland, 1470‒1625 (London, 1981), part 1; quotations from p. 1.

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me – I want to persist with that line of argument. It seems to me that he is a good reflection of the political culture of the English Renaissance, and that his writings provide a useful insight into what that culture meant. I think that point could be illustrated in many different ways, but following the theme of this volume, my chapter will focus on the relationship between the king, the nobility and the larger political system.

I John Skelton was a cleric from a north-country family, who spent his career on the fringes of a series of great institutions.2 He acquired the new-fangled status of ‘laureate’ from the universities of Oxford, Cambridge and Louvain between 1488 and 1493. He was loosely associated with the royal court from the mid-1490s, serving as tutor to Prince Henry from 1495 to (probably) 1502. He left to become rector of Diss, in Norfolk, apparently a beneficiary of the patronage of Lady Margaret Beaufort, but then sought to return to court in 1509, finally gaining, or affecting, the nebulous status of orator regius in 1512, and writing a few official commissions in the wake of Flodden before receding again. By the late 1510s, Skelton was living in the sanctuary at Westminster, writing poems and plays for London audiences and patrons, including a series of remarkably insulting satires on Cardinal Wolsey in 1521‒2. Thereafter, he finished off his poetic autobiography – The Garlande of Laurell – and wrote a handful of pieces in support of royal policy (probably at Wolsey’s request), before laying down his pen in around 1528 and dying in 1529. Skelton’s output was prodigious and, in certain respects, varied – from shortish love poems, epigrams and odes in English and Latin, to the polished courtly drama of Magnyfycence, the bathetic and scabrous lament of Phyllyp Sparowe, and the complex allegories and linguistic tricks of Speke, Parott, saturated with references and (I think deliberately) impossible to understand. His trademarks were a satiric and argumentative style; an insistent, punning voice, juxtaposed with demonstrations of high learning and aureate diction; a high consciousness of the functions of the poet (and of his own potential contribution to the Zeitgeist); and a readiness to comment on the affairs of the world around him. In his lifetime, he enjoyed intermittent recognition as an intellectual and writer, but was never in the front rank, and was certainly not regarded – as he saw himself – as the national poet, or vates Britonum.3 12 For what follows on Skelton’s life, see John Scattergood, ‘Skelton, John (c.1460‒1529)’, ODNB, supplemented by Thomas D. Penn, ‘Literary Service at the Court of Henry VII’, unpublished PhD thesis (University of Cambridge, 2001), ch. 2. 13 For this self-identification, see e.g. Phyllyp Sparowe, lines 834‒5. References to the English poems are to the texts as presented in John Scattergood (ed.), John Skelton: The Complete English Poems (Harmondsworth, 1983).

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For literary scholars and historians alike, Skelton has often been a problem figure. He has been hard to place in terms of poetic tradition – ‘late and decadent’ in his reproduction of fifteenth-century vernacular verse forms, but ostensibly hostile to humanism and untouched by the Italian styles soon to become trendy with Wyatt and Surrey.4 Neither ‘medieval’ nor ‘Renaissance’ in the sense that these terms are usually meant by literary scholars, he has long been regarded as ‘maverick and transitional’ – a strange monolith in C. S. Lewis’ ‘drab age’ between the Chaucerians and the court poets of the 1530s and 1540s, 1570s and 1580s.5 For historians, the problem is a different one: Skelton used to be regarded as a convenient illustration of antiWolsey sentiment, whether that was the near-universal perspective of public opinion, or a posture of the Howard or ‘old noble’ faction, whose mouthpiece Skelton was assumed to be.6 Since the important work of Greg Walker in the 1980s, neither of these readings is possible: Skelton now appears as a jobbing author, seeking patronage wherever he could get it and mostly surviving on a thin diet, as the cognoscenti focused their attention on more fashionable writers.7 Thanks to John Scattergood and others, we now know that few of Skelton’s works were printed in his lifetime, or even widely circulated in manuscript.8 So the problem becomes what to do with a figure who was so voluble, took himself so seriously, and addressed themes of major public importance, but who appears to have had little influence or readership. Standing back from this body of literature, it is hard not to feel that, for all its virtues, it reflects some of the limitations of pre-1990s writing on literature and politics – that is, before new historicism and the linguistic turn had really begun to affect the way we think about public writing and political culture. Why should someone writing in the fast-growing vernacular of the decades around 1500, against the background of a very rapid reception of printed classical texts and of new techniques for learning Latin and Greek, and in the midst of fast-moving changes in both the domestic and the international political scene – why should such a person fall neatly into the abstract 14 Jane Griffiths, John Skelton and Poetic Authority: Defining the Liberty to Speak (Oxford, 2006), 1‒2. 15 These approaches to Skelton are discussed (and challenged) by Andrew Hadfield, Literature, Politics and National Identity: Reformation to Renaissance (Cambridge, 1994), 24, 39‒40, 44‒5, 50; quotation from Elizabeth Heale, Wyatt, Surrey and Tudor Poetry (Harlow, 1998), 73. For a critique of the ‘drab age’ tag, see e.g. Cathy Shrank, Writing the Nation in Reformation England, 1530‒1580 (Oxford, 2004), 10‒11. 16 Greg Walker, John Skelton and the Politics of the 1520s (Cambridge, 1988), 2‒3, 5‒6. 17 Ibid., chs 1 (for the Howards) and 2 (patronage and the court), 114, 118. 18 John Scattergood, ‘The London manuscripts of John Skelton’s poems’, in his Reading the Past: Essays on Medieval and Renaissance Literature (Dublin, 1996), 275‒87; A. S. G. Edwards, ‘Skelton’s English poems in manuscript and print’, in David R. Carlson (ed.), John Skelton and Early Modern Culture (Tempe, AZ, 2008), 85‒97; Walker, Skelton, 119‒23.

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and anachronistic literary categories of ‘medieval’ or ‘Renaissance’? Does Skelton’s failure to do so inevitably cast him as ‘maverick’, and therefore as unimportant, cranky, marginal? Did the poet’s need for patronage – or, more properly, for resources and standing (not necessarily to be found in the same places) – dictate his entire poetic agenda? In considering Skelton’s work, do we, as Greg Walker argues, have to be guided by the specific circumstances in which each poem was produced?9 These must be part of the story, certainly, but such an approach implies a more straightforward relationship between the writer, his words and his audience than we should be willing to accept. Did Skelton do exactly what his patrons and paymasters wanted? Certainly not. Did he know exactly what he was doing at every moment of his writing? Probably not. And did he know, or control, what that writing was doing, or where its structures and patterns came from? Absolutely not – or not in every particular. Since the 1990s, literary scholars have been looking at wider and deeper contexts for Skelton’s work, Andrew Hadfield locating him at the head of a sixteenth-century movement to create a national literature in English for a newly literate mass audience, while, more recently, Anthony Hasler has treated Skelton as a witness to the figurative and political complexity of the early Tudor court, and Jane Griffiths has focused on Skelton’s concern with voice and authority, seeing him grappling with a changing cultural climate and, in particular, with the phenomenon of readers who answer back and shape by their reception the meaning and impact of literary utterances.10 It is time that we historians went back to this serious writer and his engagement with the world around him, and we should do so with the kinds of perspectives that the linguistic turn has made possible – with attention to patterns of language, and recognition of their capacity to structure thought and influence action; with acknowledgement that even the most learned and deliberate language-user is part of a wider language game and cannot make every linguistic choice freely, or even knowingly. Seen in this way, Skelton, who wrote so much, in so many different genres and (apparently, at least) for such a range of early Tudor milieux; who had such a substantial hinterland of English and Latin learning, and even a smattering of Greek; and who 19 Walker, Skelton, 219 and passim. See also Greg Walker, ‘John Skelton, Cardinal Wolsey and the English nobility’, in G. W. Bernard (ed.), The Tudor Nobility (Manchester, 1992), ch. 2, 118‒19 and note 25. 10 Hadfield, Literature, Politics and National Identity, ch. 1; Anthony Hasler, Court Poetry in Late Medieval England and Scotland: Allegories of Authority (Cambridge, 2011), chs 2, 6; Griffiths, Skelton and Poetic Authority; see also Robert J. Meyer-Lee, Poets and Power from Chaucer to Wyatt (Cambridge, 2007), ch. 5 for a somewhat similar concern with the ‘laureate voice’. Skelton’s relationship to the role of ‘court poet’ is discussed by Greg Walker and A. S. G. Edwards in their contributions to Jennifer and Richard Britnell (eds), Vernacular Literature and Current Affairs in the Early Sixteenth Century: France, England and Scotland (Aldershot, 2000).

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showed an interest in how the world around him was changing, must be an important witness. He was far from alone in moving back and forth between Oxford and Cambridge, London, the court and the countryside; his educational formation was, in large part, shared with the leading ministers and courtiers of the day; and it is worth recalling that this was a time when dyspeptic schoolmasters – Robert Whittinton, William Lily, John Colet and Thomas Wolsey himself, master at Magdalen in 1499 and founder of a grammar school at Ipswich – could find themselves very close to the action.11 Skelton’s view of the nobility has been considered before. As we have seen, the poet has often been seen as a cultural and political conservative – a ‘Trojan’ against the ‘Greeks’ in the ‘Grammarians’ War’ of the late 1510s, and a defender of the nobility against Tudor new men, Wolsey above all.12 More recently, that picture has been challenged, with Thomas Mayer arguing that, like other Tudor public writers – Dudley, Pace, Starkey – Skelton was highly critical of the nobility, deploring their ignorance and blaming their supine cowardice for the rise of Wolsey.13 In 1992, Greg Walker took a different tack, arguing that Skelton’s representation of the nobles was variable and insincere – sympathetic when writing for noble patrons, as in his 1489 lament Upon the Dolorus Dethe ... of the ... Erle of Northumberlande, but waspish when reaching for every possible brickbat to hurl at the Cardinal, as in the 1522 poem Why Come ye Nat to Courte?14 In reality, Walker argued, relations between Wolsey and the lords were mostly harmonious, and the dramas depicted by Skelton were essentially poetic licence. Here, a satirist might be tempted to apply Walker’s mode of reading Skelton to Walker himself, and to suggest that he was writing for a patron: George Bernard, editor of the volume on the Tudor nobility in which Walker’s piece appears, and exponent of the view that nothing really changed in the position of the nobility as the fifteenth century turned into the sixteenth.15 This revisionist approach has had quite an impact, but while it has been salutary to challenge the idea that Tudor kings and ministers set out to destroy the nobility, and to draw attention to certain continuities in noble landholding, influence and 11 For these men, see the introduction to Beatrice White (ed.), The Vulgaria of John Stanbridge and the Vulgaria of Robert Whittinton, EETS, os, 187 (London, 1932); Thomas F. Mayer, Thomas Starkey and the Commonwealth: Humanist Politics and Religion in the Reign of Henry VIII (Cambridge, 1989), 17‒25; Peter Gwyn, The King’s Cardinal (London, 1990), 1‒2, 341. 12 For more on the ‘Grammarians’ War’, see David R. Carlson, ‘The “Grammarians’ War”, 1519‒1521, humanist careerism in fifteenth-century England, and printing’, Medievalia et Humanistica 18 (1992), 157‒81. 13 Mayer, Thomas Starkey and the Commonwealth, 162ff. 14 Walker, ‘Skelton, Wolsey and the nobility’. 15 For a recent statement of Bernard’s views, see ‘The continuing power of the Tudor nobility’, in G. W. Bernard, Power and Politics in Tudor England (Aldershot, 2000), ch. 2.

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ideals, it is important not to miss the ways in which the situation of the nobility was altered by the cultural and political dynamics of the period. As will become clear, I think Skelton’s poems illustrate that altered situation rather well, and expose some of the reasons for it.

II How, then, did Skelton treat the nobility? First of all, Walker is quite right that he had more to say in some works than others and that, in certain respects, his position changed over time. The specific allegation that the nobles were cowards – ‘their hertes … in thyr hose’ – and that their lassitude and fear of Wolsey had allowed ‘one man to rule a kynge’, is a peculiarity of the three poems written against the Cardinal in 1521‒2: Speke, Parott, Collyn Clout and Why Come ye Nat to Courte?16 Equally, the trenchant account of aristocratic vices in Magnyfycence (probably 1519) was not so highly developed in Skelton’s earlier works (the play depicts the tendency of nobles like the title character to slide into extravagance, rapacity and tyranny, and it is telling that ‘Fansy’, who, with ‘Lyberte’, is the main source of decay, ‘amonge noble men … was brought up and bred’).17 Similarly, the view that lack of education and civic commitment held the lords back – they ‘set nothynge by polytykes’ – did not appear with much explicitness before Collyn Clout in 1522.18 But elements of these views do feature in earlier poems, and this suggests that they were not simply contrived to suit the purposes of the anti-Wolsey satires. Skelton, of course, was always ready to denounce others’ lack of learning, but he specifically juxtaposed the literate scholar with the swaggering aristocrat in several early pieces – in The Bowge of Courte, for instance, which probably comes from the late 1490s, but may date back to 1480, and in the famous series of ‘flytyngs’ against Garnesche in 1513 or 1514; the former poem also contains a prototype of the vices of Magnyfycence in its characterisation of ‘Ryotte’, who is a randy young nobleman, addicted to dice and whoring.19 16 Quotations from Why Come?, line 289, Collyn Clout, line 989. 17 Magnyfycence, line 261. For the 1519 dating, see Greg Walker, Plays of Persuasion: Drama and Politics at the Court of Henry VIII (Cambridge, 1991), ch. 3. 18 Collyn Clout, line 623; cf. Why Come?, lines 309‒11. 19 For the scholarliness of the character ‘Drede’ in Bowge of Courte, see e.g. lines 149, 242ff, 303 etc; ‘Ryotte’, a ‘rusty gallande’, appears at line 344. In the poems Agenst Garnesche, Skelton presents himself as a man of eloquence and learning and his opponent as a knightly buffoon, whose rough verses ‘violate / The dygnyte lauryate’ (poem iii, lines 99‒100). Garnesche may have been born a gentleman, but ‘jentylnes in the ys thred-bare worne’ (poem v, line 70), whereas Skelton’s learning has earned him status: the ‘senate’ of Oxford made him laureate and ‘a kynge to me myn habyte gave’ (lines 80‒4).

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And there are other ways of depicting the nobility that are pretty consistent across all the poems. Some of these are conventional: superficially, at least, Skelton was a defender of the traditional social hierarchy, with the king at the top, the nobles next, and other grades in succession underneath. The commons who murdered the earl of Northumberland in 1489 are thus described as ‘most unkynd’: they had killed their natural lord and defender.20 The Lawde and Prayse presented to Henry VIII in 1509 regards it as quite wrong that the likes of Empson and Dudley had been ‘wont … over all / Both lorde and knight to face’, just as it was wrong, a dozen years later, that the bull-calf, or butcher’s son, Wolsey treated the lords as ‘javells’ and ‘knaves’.21 At the same time, however, there are plenty of postures in Skelton’s work that were more challenging to noble status. For one, there is a recurring theme that lords were likely to get drawn into overmightiness and intrigue. ‘Lordly’ is almost always a pejorative term in Skelton’s poems, betokening anger and wilfulness, traits of the tyrant: the character ‘Magnyfycence’, for instance, is asked by ‘Courtly Abusyon’, ‘Are you not a lorde? / Let your lust and lykynge stande for a lawe’.22 The poem marking Henry VIII’s coronation apparently condemns Henry VII’s ministers, but in its reference to foxes, wolves and bears that have ‘browght Englond in wo’, it seems to include noblemen as well, the last of these animals instantly recognisable as the badge of Warwick the Kingmaker.23 In Upon the Dolorus Dethe, meanwhile, Northumberland is explicitly praised for not having rebelled against his royal master, as if such misbehaviour was par for the course among the high aristocracy, and the duke of Albany (somewhat gratuitously) is accused of planning to depose James V of Scotland in 1523.24 For these kinds of reasons, the nobility were highly vulnerable to ‘detraccion’ (1489) by ‘fals fickil tunges’ (c.1516), and Skelton might have borne that in mind before condemning aristocratic cowardice in the 1520s’ poems.25 One last persisting feature of Skelton’s handling of the nobility that deserves comment is their relative effacement. It is clear throughout the poems that the true seat of chivalry and nobility in the realm – ‘our royall Englysh nacyon’, the ‘realme royall / And lande imperiall’, as Skelton 20 Upon the Dolorus Dethe, line 56. 21 A Lawde and Prayse Made for Our Sovereigne Lord the Kyng, lines 38‒9; cf Collyn Clout, line 600ff; Why Come?, line 96. 22 For negative uses of ‘lordly’, see e.g. Collyn Clout, line 595 (‘lordely lokes’), Magnyfycence, lines 1626‒7 (a ‘lordly mynde’ enjoys beating up his enemies). The quotation is ibid., lines 1606‒7. 23 For references to the earl of Warwick (d.1471) as ‘the bere’, the earl of Suffolk (d.1450) as ‘the fox’ and the earl of Worcester (d.1470) as ‘the wolf ’, see Rossell Hope Robbins (ed.), Historical Poems of the XIVth and XVth Centuries (New York, 1959), 186, 202, 206‒7, 217. 24 Upon the Dolorus Dethe, lines 148‒51; Howe the Douty Duke …, line 87ff. 25 Upon the Dolorus Dethe, line 173; Agaynst Venemous Tongues, lines 55, 57‒8.

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repeatedly calls it – is around the king.26 Henry VIII is ‘our royall regent, / Our pereless president’, ‘our noble champyon’, even at Flodden, in 1513, when the king was over five hundred miles away.27 The ‘Douty Duke of Albany’ was defeated in 1523 less by the northern aristocracy than by ‘the noble powre / Of my Lorde Cardynall’.28 Admittedly, Wolsey had just become bishop of Durham, and ‘powre’ was probably being used in a literal sense, to mean a group of armed men, but it is made clear throughout the poems that the king is the real author of knighthood and nobility. The martial achievements of the lords – even the Howards – are minimised, treated in passing and regarded merely as the execution of royal schemes: ‘his noble baronage’, Skelton says of Henry VIII, ‘he putteth them in corage’; Northumberland may have been comparable to Hector and Aeneas in 1489, but, a few years later, Prince Henry was Hector, Marcellus, better than Scipio, the ornament of Britain; in 1509, he was Adonis, Priam and even Mars; and Scipio again in 1513 and (from the safety of London) in 1523.29

III So what is going on here, and what does it mean? I think two broad political terminologies (both literal and conceptual) underlay Skelton’s position on the lords, and they influenced a third element – his apprehension of what was going on in the polity. One of these terminologies was Roman – the republican and monarchical–republican world of the last few centuries bc and the first century ad. Like many of his contemporaries, Skelton seems to have absorbed the Roman political model of res publica, in which, as Cicero put it, res populi (the concern and property of the people) was the basis of the state, while government was essentially a matter of deliberation on the public good, carried out by a senatorial group of councillors, whether these were headed 26 Agaynst the Scottes, line 76; Howe the Douty Duke …, lines 393‒4. 27 Howe the Douty Duke …, lines 427‒8; A Ballade of the Scottyshe Kynge, line 25. In this earlier poem, the earl of Surrey, victor of Flodden, appears only through his badge – the ‘Whyte Lyon’ (line 68). In the more developed treatment of Flodden in Agaynst the Scottes, Skelton again refers to Surrey only as ‘White Lyon’ (e.g. line 135), and the play he makes of the white lion destroying the red lion of Scotland calls to mind Merlin’s prophecy of the defeat of the Britons (red dragon) by the Saxons (white dragon), thus nationalising the earl’s victory (lines 137‒8). 28 Howe the Douty Duke …, lines 59‒60. 29 Ibid., lines 465‒6. For the references to classical heroes, see Upon the Dolorus Dethe (1489); Lawde and Prayse (1509); Agaynst the Scottes (1513), line 117; Howe the Douty Duke … (1523), line 439. See also Skelton’s Latin poems on the creation of Prince Henry as duke of York (Hector, ‘semideus’, Narcissus, Hyperion) and on his accession as king (Hector, Marcellus, better than Scipio, etc.): David R. Carlson (ed.), ‘The Latin writings of John Skelton’, Studies in Philology 88.4 (Autumn, 1991: special issue), 42‒4.

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by a pair of consuls or a beneficent and law-abiding prince.30 It was from this model that Skelton derived his exasperation at the lords’ failure to prevent tyranny and also his dissatisfaction with their lack of learning. For Cicero and other commentators on the fall of the Roman Republic, notably Sallust, it was the responsibility of noblemen above all to maintain the institutions of counsel and representation; a training in the humanities – virtue, eloquence, philosophy and history – would enable them to play this statesmanlike role. But the sad reality of the last decades of the Republic was that well-born men, corrupted by ambition and greed, like Catiline and Caesar, posed the greatest threat to the common weal; posing as defenders of the people, they joined forces with the mob to destroy the state, causing division and civil war, and laying the foundations of the principate, with all its attendant danger of tyranny. Most of the classically educated political commentators of early Renaissance England, from Sir John Fortescue and the Crowland Chronicler to the era of Polydore Vergil, Thomas More and Thomas Starkey, saw things in broadly these terms, and Skelton was no exception. If Wolsey was ‘nevyr suche a senatour’, enjoying an unconscionable concentration of power, the nobility were no better, preferring ‘lordshype’ to the ‘care’ and ‘thought’ that went with statesmanship – or indeed, as we have seen, preferring lordship to ‘law’, which was the very foundation of the republic.31 Instead of ‘the wyttys of many wyse’, engaged in ‘cyrcumspection’ and ‘sad dyrection’, the ‘commune weale’ was in ‘one mannys hande’ and subject to ‘wylfull affectyon’, ‘for Wyll dothe rule all thynge, / Wyll, wyll, wyll, wyll, wyll’.32 It did not particularly 30 For an introduction to the impact of these ideas on political culture in England around 1500, see John Watts, ‘“Common Weal” and “Commonwealth”: England’s monarchical republic in the making, c.1450–c.1530’, in Andrea Gamberini, Jean-Philippe Genet and Andrea Zorzi (eds), The Languages of Political Society: Western Europe, 14th–17th Centuries (Rome, 2011), 147‒63. A useful overview of Cicero’s ideas and of the reception of his writings is Howard Jones, Master Tully: Cicero in Tudor England (Nieuwkoop, 1998). For the exposure of English intellectuals to Roman ideas in the second half of the fifteenth century, see R. Weiss, Humanism in England During the Fifteenth Century, 4th edn, eds David Rundle and Anthony J. Lappin (Oxford, 2013), available online at http://mediumaevum.modhist.ox.ac.uk/monographs_weiss.shtml (last accessed 30 September 2013); Daniel Wakelin, Humanism, Reading and English Literature, 1430‒1530 (Cambridge, 2007); and the works of David Rundle, esp. ‘Humanism before the Tudors: on nobility and the reception of the studia humanitatis in fifteenth-century England’, in Jonathan Woolfson (ed.), Reassessing Tudor Humanism (London, 2002), 22‒42. 31 Speke, Parott, line 337; Magnyfycence, lines 286‒7, 1606‒7. For roughly contemporary statements of the notion that law was the foundation of the res publica, see e.g. S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936), 385 (1493) and David S. Berkowitz (ed.), Humanist Scholarship and Public Order: Two Tracts against the Pilgrimage of Grace by Sir Richard Morison (Washington DC, 1984), 117 (1536). 32 Why Come?, lines 763‒70, 1015, 105‒6.

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matter whether the will was Wolsey’s, as Skelton asserted in the early 1520s, or Henry VIII’s, as he implied in the figure of ‘Magnyfycence’ (‘I am lyke as a prynce sholde be’, declares the corrupted hero; ‘I have welth at wyll, largesse and lyberte’), the problem, from the classical–republican point of view, was that it belonged to a single individual and was free from the rational and representative restraint of senatorial counsel.33 Had the lords ‘set [more] by polytykes’ – which, at this time, still bore some connotations of collective decision-making, guided by prudence and law – this concentration of power would not have occurred, but instead of acting as senators, they had preferred to engage in courtly vices, to hunt and hawk, to rack rent their lands and to plot against the sovereign and the common weal.34 It was important that lords upheld the social order, so Skelton was not about to knock their elevated status (and it is worth remembering that Cicero’s republic was not conceived as a democracy, but – like Starkey’s, or Milton’s – as a place where virtuous gentlemen should rule deliberatively, sharing equality before the law with the mass of the people, but not admitting them all to authority). It also mattered that the lords fulfilled their martial duty by serving – under princely or senatorial direction – as knights in the armies of the res publica, and so, in a qualified way, Skelton was willing to praise noble arms. Indeed, for all his disapproval of lordliness, he was quite happy with nobility, provided that it was close to the vera nobilitas (true nobility) of civic and martial virtue, or indeed the nobilitas litterarum (nobility of letters) of which Skelton himself was an exponent.35 In effect, then, his poetry contains many of the tensions that run through the classical texts that were favoured by the scholars of the early Renaissance. It combines an appreciation of princely sovereignty with a republican ethos and anxieties about the fleshpots of the imperial court, on the one hand, and the intrigues of noble Catilines, on the other. It allots the nobles a particular kind of role, in an urbane – indeed urban – and centralised polity, but denies them the lordship over land and men to which they were accustomed.

33 Magnyfycence, lines 1457‒8. 34 Collyn Clout, line 623 (and see lines 980‒1019 for the lords’ activities and their consequences). For the meaning of ‘polytykes’, see John Watts, ‘“The Policie in Cristen Remes”: Bishop Russell’s parliamentary sermons of 1483‒4’, in G. W. Bernard and Steven J. Gunn (eds), Authority and Consent in Tudor England: Essays Presented to C. S. L. Davies (Aldershot, 2002), 33‒60, at p. 48 and Mayer, Thomas Starkey, 113‒15. 35 For ‘nobilitas litterarum’, see Carlson (ed.), ‘Latin writings of Skelton’, 34, and cf. ‘O noble Chaucer’ and ‘these noble poetes’ in Garlande, lines 421, 517, and Agenst Garnesche, poem (v), lines 65‒115, where Skelton argues that his ‘dignite lawreat’ is equal to, or greater than, gentility of birth.

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IV The second body of political thought and language in Skelton’s writing lacks a convenient term to describe it, but it is essentially the rich harvest of medieval learning and literature that was deployed in public poetry and other kinds of public speech and writing: a sprawling mish-mash of reworked classicisms (above all from Aristotle and Augustine, but also from the golden and silver ages of Rome), combined with the products of scholastic learning, fraternal and communitarian discourses, and the legacy of earlier generations of English national poets – Chaucer, Gower, Langland and Lydgate.36 Skelton saw himself as heir to this tradition, and he wove its material into his own distinctive mélange of vernacular English and Renaissance Latinity, so that a work like Magnyfycence, for example, combines the fashionable neo-Roman virtue of its title with the Aristotelian concept of ‘measure’, placing noble counsellors under a ‘dyreccyon’ that is at once a kind of Ciceronian republican discipline and a more characteristically ‘medieval’ notion of self-rule, the bridle of restraint, and so on.37 As far as the depiction of the nobles is concerned, this second tradition brought them chivalric standing and recognition as the king’s natural companions and advisers. It is also another strand in Skelton’s representation of Wolsey, as an evil counsellor, brought up of nought and supplanting the magnates in his search for money and power, just like the men condemned by popular poets and captains in the Wars of the Roses.38 In a like way, there is a basis in medieval estates satire for Skelton’s critique of the lords as uneducated and spendthrift.39 More significant, however, is the tendency of public writing to sidestep the nobility as a distinct class and to emphasise the coupling of king and commune, or community, as the basis of the polity.40 ‘Kam ther a Kyng’, 36 ‘Public poetry’ is the useful coinage of Anne Middleton, ‘The idea of public poetry in the reign of Richard II’, Speculum 53 (1978), 94‒114. 37 Magnyfycence, line 18 (‘Yf noblenesse were aquayntyd with sober dyreccyon’). Cf Why Come?, line 769. For Skelton as heir to Chaucer and his contemporaries, see Garlande, line 387ff. 38 Something of this is noted by Walker, Skelton, 139ff. For more on ‘evil councillors’ in later medieval political discourse, see John Watts, ‘The pressure of the public on later medieval politics’, in Linda Clark and Christine Carpenter (eds), The Fifteenth Century 4: Political Culture in Late Medieval Britain (Woodbridge, 2004), 159‒80, at pp. 169, 174 and passim. 39 Walker, ‘Skelton, Wolsey and the nobility’, 115‒17, and see Wynnere and Wastoure, ed. Stephanie Trigg, EETS, 297 (Oxford, 1990), for a good example of a stereotypical critique of high-spending aristocrats. 40 For extensive treatment of this theme, see David Rollison, A Commonwealth of the People (Cambridge, 2010), chs 3‒5, and also John Watts, ‘The Commons in medieval England’, available at http://lamop.univ-paris1.fr/IMG/pdf/Watts.pdf (last accessed 30 September 2013).

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wrote Langland, in a famous depiction of the fourteenth-century parliament: ‘Knyghthod hym ladde; / Might of the communes made hym to regne’; ‘clerkes’ are there too, but, despite the parliamentary setting, the lords are subsumed into the second estate.41 Similarly, Chaucer’s Canterbury Tales contains estates archetypes – knight, parson and ploughman – but, in representing English society, it mainly depicts the middling ranks, while Gower’s ‘bok for Englandes sake’, Confessio Amantis, defines the estates of the realm as clergy and laity, lumping the latter together as ‘the comune’.42 As a martial class, then, the lords were typically allotted a particular social function, but it is plain that they shared it with the rest of the aristocracy – the knights and esquires – and most literary and pastoral figurations of the later medieval realm promoted a community, dominated by the respectable inhabitants of towns and villages, and protected by knights and priests under the government of the king. These images were strongly reinforced by the rhetorics and institutions of the royal state, which – with one or two exceptions, such as the recognition of the peerage in parliament – tended to present the realm as a collectivity of liberi homines (free men), rather than a series of territorial lordships, networks and hierarchies. It is true that the estates of the realm could be ordered vertically, and there are certainly grounds for seeing in the later middle ages a growing preoccupation with social stratification and a growing conviction that preserving hierarchy was the route to social order, but against this would have to be set mounting concern about aristocratic violence and about the threat posed by ‘overmighty subjects’. In all, the tradition of English public writing offered scant legitimacy to lords except as the defenders of the commune; Skelton’s location in this tradition helped to structure his treatment of the nobility and to incline it in a negative and minimising direction. In these ways, then, we might feel that Skelton’s sources, Roman and English, gave him a distorting lens through which to view the realm and the position of the nobility within it. But that would be the wrong conclusion to draw. For one thing, these same boxes of terms and concepts were available to all the learned men of Skelton’s day, and most of them extracted and combined their contents in ways that paralleled Skelton’s own: his style may have been distinctive, but his ideas and vocabularies were widely shared. For another, these same learned men were living in, and helping to make, a changed political world, in which the activity and authority of the king and his educated councillors was bulking larger, and the inherited power of the nobility was being disrupted and curtailed. The lords retreated from the 41 The Vision of Piers Plowman: a Complete Edition of the B-Text, ed. A. V. C. Schmidt (London, 1978), Prologue, lines 112‒13, and see lines 114, 116. 42 For this approach to Chaucer, see Paul Strohm, Social Chaucer (Cambridge, MA, 1989), esp. ch. 1; G. C. Macaulay (ed.), The English Works of John Gower, 2 vols, EETS, extra series 81‒2 (London, 1900‒1), I, lines 24 and 499.

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postures they had adopted in the troubles of the later middle ages; they were less able to influence patterns of appointment and justice in their countries; they were more likely to be royal creations, personally (and often literally) indebted to the king, than the inheritors of large estates and established connections; they took their places in a realm that was more completely and insistently driven from the royal centre than it had been, and where the centre itself was larger and more complex.43 In this altered world, distinctive new languages combined with older ones and with a whole series of social and political shifts to create a political atmosphere that the likes of Skelton sought to depict and capture. It is the atmosphere of Renaissance England, and, given its biases – towards education and eloquence, courtliness and urbanity, ministerial power and royal sovereignty – a laureate poet, who saw himself as orator regius, might be just the guide we need. On the inside in some respects and the outside in others, sometimes abreast of and sometimes behind the latest trends in learning and writing, striving for a public voice whose forms and warrants were changing and fading, Skelton’s poetry reflects the crosscurrents of a cultural and political revolution.

V How much Renaissance England had in common with Jenny’s Renaissance Scotland I leave for others to judge. In most of his writing, Skelton seems to have had little appreciation of the glories of Scottish culture in the age of Lindsay and Dunbar. But a curious and rather scrappy piece that has been attributed to him does show some glimmer of recognition of northern learning and might be a good place to close.44 Written for an unknown Scottish lady – and evidently a learned one, with connections at Oxford – it plays on a somewhat obscure tradition that Guinevere, wife to King Arthur, came not from Gwent, Cornwall or Brittany, but rather from western Scotland, where she claimed descent from Albanactus, second son of Brutus, the founder of Britain.45 43 Argument and evidence supporting the views in this paragraph will appear in the book I am currently writing for the New Oxford History of England series, covering 1461‒ 1547. Among existing accounts of the nobility in this period that take a similar line, see Steven J. Gunn, Early Tudor Government, 1485‒1558 (Basingstoke, 1995), esp. 42‒8; Christine Carpenter, Locality and Polity: A Study of Warwickshire Landed Society, 1401‒1499 (Cambridge, 1992), chs 16‒17. 44 The text, which has never before been printed, appears in the common-place book of the London mercer, John Colyns (BL, Harley MS 2252, fos 666v.–67r.). For the possible attribution to Skelton, see Adolf Falschlehrer, ‘Some minor lyrics of John Skelton from British manuscripts’, Neuphilologische Mitteilungen 32 (1967), 237. 45 Alexander Salmond, Fresh Light on British Myths (Scone, 2007), 14.

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O Guinevere Queen, from parts Borell,46 That depely dronke of Elycons47 well And Clios frende was many a yeer, From Albaynes brown and tanny hills drear Came ye to courte at Tamise-syde Oure Oxford scholars for to guide And eek to ryde For their edificacyon And goodly reformacyon (Withoute cavillacyon In full jubilacyon) In materys Brityshe But also skyttyshe, As Derneleyes dealings with the Quayne And Jamys dremes of Newe Britayne, Of Roussaue, Marlowe, Macaulay, Aristotill, Gibbon, Tacité, Skelton Laureate and Surrey gay, Markes and Marvell, Tockevyle ay Yowr techinges filled up all the day! The nunnes at Aedes Hildae gave ye rest, But kirtels and wimpels were not your gest: From gynate hoarth48 ye rode abowte With glas of Haygh and fag ne’er out To heal in homes; with wordes ful wise The Lady Brigden to surprise; At Ingrames nose, Ye bent your bowes, Or, archer retired, Your gunn ye fired: And al for correccion, Or insurreccion, In gret ereccyon And newe complexyon Of our trivium And quadrivium: Yeres two and thre Of our degre In Historye.49 46 Boreal, northern. 47 Helicon is a mountain in Boetia, Greece, the mythic location of the fountains of the Muses Aganippe and Hippocrene. 48 ‘Gynate’ appears to be a coinage of Skelton’s, making this phrase mean ‘female hearth’. ‘Hoarth’ is an unusual spelling of ‘hearth’, however, and may indicate some play on words that is now impossible to untangle. 49 Possibly a reference to discussions of syllabus reform in late fifteenth-century Oxford,

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All were masyd And none more crasyd Than wysdomes snake – That worme old spake And said it was the grettest of your gestae (What thogh ye wrote those bookes, the best I Ever read?),50 But then ye shed Your Oxon head And hither led Your way to EdIn-borugh-town, And left your gown And old renown; Wherfore all England’s scholers cry in vain, O Gwynveer, Jennifer, Jennye, Jane, Will ye noo come back agayne? Al this wots Skelton Laureate to be true, Vates Britonum.

now unknown. For changes at Cambridge in the late 1480s, see Damian R. Leader, History of the University of Cambridge, vol. i: The University to 1546 (Cambridge, 1988), 242‒3. 50 This seems to suggest that a figure represented by this ‘worme old’ regarded the impact that the subject of the poem had on Oxford’s curriculum as more important than the writings that Skelton praises. Since these debates over the curriculum are undocumented, I am at a loss to explain this reference.

chapter 6

Rethinking the Justice of the Feud in Sixteenth-Century Scotland A. MARK GODFREY 1 The functioning of courts in dispensing civil and criminal justice can tell only part of the story of any dispute, and may often play no part at all. When invoked, however, court process is typically (if not always) a response to a dispute. The history of the administration of justice must therefore take into account the wider history of dispute resolution and settlement. This is not least because in a society such as that of late medieval Scotland a wide variety of methods of conducting a dispute tended to be used alongside each other. Thus the relationships between the various resolution or settlement mechanisms and the various ways a dispute was progressed – for example, resort to feud, formal litigation, criminal prosecution, arbitration, mediation, negotiation – have to be an essential focus of enquiry before the role played by any one method can be adequately understood. The work of Jenny Wormald has been exceptional in offering profoundly insightful and innovative ways of understanding disputes in late medieval Scotland, especially the relationship between what she has termed private and public justice.2

I A pioneering aspect of Wormald’s overall thesis was to link the decline of the bloodfeud with the development of the Court of Session as a supreme civil court in Edinburgh. This admitted into the analysis a concern with the ways in which institutions of governance tried not only to control crime and disorder but also to provide for adjudication between disputing parties themselves. 11 I am very grateful to Hector MacQueen for comments on an earlier draft. This chapter was written during six months on sabbatical leave in 2012 as a visiting research fellow in the LOEWE Research Centre for Judicial and Extra-judicial Conflict Resolution, and visiting professor in the Faculty of Law at the Johann Wolfgang Goethe-Universität, Frankfurt am Main. 12 Though ‘public’ and ‘private’ are at one level problematic terms in the medieval period: Susan Reynolds, ‘The historiography of the medieval state’, in Michael Bentley (ed.), Companion to Historiography (London, 1997), 117‒38, at pp. 124‒5.

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In this context the development of a central court in Scotland continues to raise significant but under-explored questions about the effect the strengthening of ‘public justice’ had on the well-established modes of ‘private justice’, as well as on the role of violence and on the underlying structures of social authority in the fifteenth and sixteenth centuries.3 The question derives further interest from Scotland’s place in the parallel and more general European pattern of the ‘suppression of the noble feud by central governments in the sixteenth century’.4 In Scotland, bloodfeud survived in a way which was not unique but which has been regarded as particularly well attested until the seventeenth century. It was a natural feature of a highly localised society deeply structured around lordship and kinship. All of this has led historians to characterise sixteenthcentury Scotland as a ‘feuding society’. More detailed studies have shown just how widespread feuding was at this time: it was possibly even the primary way of approaching many disputes. Despite this, however, there is still a risk of oversimplification, which may come from seeing all aspects of the resolution of disputes through the lens of the particular mechanism of feud, even for a society in which feud was common. This same ‘feuding society’ was, after all, rooted in landed property that had been structured for centuries around jurisdiction and legal rights as expressed in the medieval common law. Indeed, the medieval common law had developed above all as a response to demands for ‘public’ or at least royal justice and the protection of landed interests through the provision of legal remedies. As early as the beginning of the sixteenth century, this ‘feuding society’ had also become highly responsive to the availability of the Session as a new central tribunal in which to seek justice. Indeed, by the sixteenth century, if not well before, it can also be regarded very much as a ‘litigating society’.5 Moreover, the increased demands for effective justice that stimulated the creation of a new central court in the first place seem to have come from the local level rather than simply reflecting some royal design for stronger central governance.6 In short, these developments in the administration of justice 13 A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009), 401. 14 Howard Kaminsky, ‘The noble feud in the later middle ages’, Past and Present 177 (November 2002), 55‒83, at p. 83. See also R. R. Davies, ‘The survival of the bloodfeud in medieval Wales’, History 54 (1969), 338‒57, at p. 338; Hillay Zmora, State and Nobility in Early Modern Germany (Cambridge, 1997), 8, 129; Stuart Carroll, Blood and Violence in Early Modern France (Oxford, 2006), 7; Stuart Carroll, ‘The peace in the feud in sixteenth- and seventeenth-century France’, Past and Present 178 (February 2003), 74‒115, at pp. 78, 81; Alexander Grant, ‘Murder Will Out: Kingship, Kinship and Killing in Medieval Scotland’, ch. 9 below in this volume. 15 Godfrey, Civil Justice, 403. 16 Godfrey, Civil Justice, 79.

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raise questions about social change, which the characterisation ‘feuding society’ can risk obscuring rather than illuminating. Above all, how do we explain the apparent rise and even popularity of a system of centralised public justice in a society still fundamentally structured around the twin institutions of lordship and kindred, if it is true that peace, stability and order were primarily understood in terms of private justice, local settlement, and what Wormald refers to as the ‘justice of the feud’? Wormald’s contribution remains the most brilliant, wide-ranging and fundamental analysis of this question, most powerfully presented in 1980 in her ground-breaking article ‘Bloodfeud, kindred and government in early modern Scotland’.7 A series of further important studies by Wormald was complemented in 1986 by Keith Brown’s Bloodfeud in Scotland, which built on and refined, but only partially challenged her thesis.8 The overall analysis presented by Wormald, embracing the whole political structure of late medieval Scottish society, and building on her study of personal bonds of maintenance, manrent and friendship, has since come to provide an essential part of the framework of analysis for late medieval Scottish history.9 Further research that tested or developed aspects of her argument followed in several unpublished doctoral theses,10 and gradually a series of published studies has engaged more directly with themes drawn from her analysis of feud in 17 Jenny Wormald, ‘Bloodfeud, kindred and government in early modern Scotland’, Past and Present 87 (May 1980), 54‒97. See also Jenny Wormald, Court, Kirk and Community: Scotland, 1470‒1625 (London, 1981); Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985); Jenny Wormald, ‘An early modern postscript: the Sandlaw dispute, 1546’, in Wendy Davies and Paul Fouracre (eds), The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986), 191‒205. A slightly neglected paper that preceded publication of Wormald’s work but is still of great value in relation to the role of the court system in disputes is Stephen J. Davies, ‘The courts and the Scottish legal system, 1600‒1747: the case of Stirlingshire’, in V. A. C. Gatrell, Bruce Lenman and Geoffrey Parker (eds), Crime and the Law: The Social History of Crime in Western Europe since 1500 (London, 1980), 120‒54. 18 Keith M. Brown, Bloodfeud in Scotland, 1573‒1625: Violence, Justice and Politics in an Early Modern Society (Edinburgh, 1986). 19 See, for example, Roger A. Mason, ‘Renaissance and Reformation: the sixteenth century’, in Jenny Wormald (ed.), Scotland: A History (Oxford, 2005), 107‒42, at p. 142; Alison Cathcart, Kinship and Clientage: Highland Clanship, 1451‒1609 (Leiden, 2006), 94. 10 Stephen J. Davies, ‘Law and Order in Stirlingshire 1637‒1747’, unpublished PhD thesis (University of St Andrews, 1984); Stephen I. Boardman, ‘Politics and the Feud in Late Mediaeval Scotland’, unpublished PhD thesis (University of St Andrews, 1990); Michael Wasser, ‘Violence and the Central Criminal Courts in Scotland, 1603‒1638’, unpublished PhD thesis (Columbia University, 1995). Davies’ thesis has been almost entirely overlooked by scholars. Boardman has subsequently touched on the implications of his thesis for the Wormald analysis of bonding in his ‘The Campbells and charter lordship in medieval Argyll’, in Steve Boardman and Alasdair

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particular.11 It therefore seems timely to review this analysis as a basis for future evaluation of the growing body of more recent work. It is hoped that this chapter will provide a useful starting point.

II Wormald’s approach in modelling the workings of the Scottish feud drew upon the social anthropologist Max Gluckman’s influential analysis of the ‘peace in the feud’. Gluckman himself had proposed of his work that ‘it would be profitable to apply these analyses to those periods of European history when the feud was still apparently the main instrument for redress of injury’.12 Gluckman’s general approach provides the fundamental underpinning for Wormald’s analysis of feud in late medieval Scotland, just as it did to a lesser degree for R. R. Davies’ analysis of medieval Wales. In the Scottish context, however, this underpinning has not been universally accepted. A more sceptical note was sounded by Keith Brown, who stated that Gluckman’s ‘sanitised bloodfeud sits uncomfortably amidst our perceptions of the past’, given the very different nature of historic European societies from those studied by Gluckman.13 Indeed, Brown has since gone further in stating that ‘while the extent to which a high level of private violence was the norm in a feuding society remains debatable, it does appear that anthropological studies of feud have unduly influenced historical analysis of more hierarchic and martial societies by emphasizing the peace in the feud’.14

11

12

13 14

Ross (eds), The Exercise of Power in Medieval Scotland, c.1200‒1500 (Dublin, 2003), 95‒117, at pp. 112‒13. Brown, Bloodfeud; Julian Goodare, State and Society in Early Modern Scotland (Oxford, 1999); Julian Goodare, The Government of Scotland, 1560‒1625 (Oxford, 2004); Godfrey, Civil Justice; Anna Groundwater, The Scottish Middle March, 1573‒1625: Power, Kinship, Allegiance (Woodbridge, 2010); Keith M. Brown, Noble Power in Scotland from the Reformation to the Revolution (Edinburgh, 2011); Jackson W. Armstrong, ‘The justice ayre in the Border sheriffdoms, 1493‒1498’, SHR 92 (2013), 1–37; Jackson W. Armstrong, ‘The “fyre of ire kyndild” in the fifteenth-century Scottish marches’, in Susanna A. Throop and Paul R. Hyams (eds), Vengeance in the Middle Ages: Emotion, Religion and Feud (Farnham, 2010), 51‒84; Jackson W. Armstrong, ‘Violence and peacemaking in the English marches towards Scotland, c.1425‒1440’, in Linda Clark (ed.), The Fifteenth Century VI: Identity and Insurgency in the Late Middle Ages (Woodbridge, 2006), 53‒71. Max Gluckman, ‘The peace in the feud’, Past and Present 8 (November 1955), 1‒14, at p. 2. However, the ‘influence’ of Gluckman on Wallace-Hadrill’s ‘The Bloodfeud of the Franks’, the most famous early example of such reception, has recently been doubted: Ian Wood, ‘“The Bloodfeud of the Franks”: a historiographical legend’, Early Medieval Europe 14 (2006), 489‒504. Brown, Bloodfeud, 2. Brown, Noble Power, 27 (emphasis added).

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This apparently represents an important difference of theoretical approach between Wormald and Brown, the two leading scholars of the Scottish bloodfeud. However, whilst a theory of feud may be criticised for failing to acknowledge adequately the role (and extent) of violence in disputes where other historical factors predispose a given society towards such a degree of violence, this does not seem a sufficient reason to discard the theory. This is because (as I will go on to discuss) the concept of the ‘peace in the feud’ does not imply a particular minimum level of violence, but simply seeks to explain how even the latent threat of violence can exert pressure to find a settlement, as well as how actual violence does the same by drawing the wider kindred into the conflict in ways that may be adverse to the interests of its individual members. The application to history of the theory of the ‘peace in the feud’ does not try to explain the precise level of violence in a feuding society, or minimise its role, but rather to explain how violence can be the fundamental driver of settlement processes. As R. R. Davies put it, the theory helps explain why ‘settlement is more common than warfare’, despite the apparent prevalence of violence in a society.15 On different grounds, other historians have also distanced themselves from applying the Gluckman analysis historically to European societies. The deeper criticism here is not so much to do with explanations of levels of violence that feuding societies experience, and whether these seem consistent with a ‘peace in the feud’, but rather with the theory proceeding on unwarranted ‘functionalist’ assumptions. Such assumptions would posit a static model of cohesive social order, which is seen as threatened by the violence that would be unleashed without the restraining institution of feud. The feud is thereby assumed to underpin social stability, order and cohesion. By contrast, violence and disputes are on this view seen as disruptive of order, dysfunctional and socially undesirable. Against this, the criticism would be that, in historical societies for which these broader assumptions about the conditions for the maintenance of social order do not hold, and where conflict may play a dynamic rather than restorative role, the ‘peace in the feud’ might not reflect social reality, and an analysis based upon it is therefore likely to be flawed.16 Arguably medieval European societies fall into this category. 15 Davies, ‘Survival of the bloodfeud’, 341. Paul R. Hyams has also made use of the ‘peace in the feud’ in his ‘Feud and the state in late Anglo-Saxon England’, Journal of British Studies 40 (2001), 1‒43. In his Rancor and Reconciliation in Medieval England (Ithaca, NY, 2003), however, Hyams does not draw on Gluckman in any fundamental way, commenting that ‘I use Gluckman’s work here more as a license to speculate than as any kind of authoritative model’: see p. 14, note 31. 16 For an excellent critical overview and discussion see David Cohen, Law, Violence, and Community in Classical Athens (Cambridge, 1995), ch. 1, esp. at pp. 11‒12. A more uncritical but perhaps representative citation of Gluckman’s analysis can be found in Julius Ruff, Violence in Early Modern Europe, 1500‒1800 (Cambridge, 2001), 82.

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Considering these criticisms in relation to a specific field of historical study, Stephen White has observed of Northern France in the later eleventh and earlier twelfth centuries that ‘feuds may have been more common and more difficult to stop than the theory would suggest’. White characterises the theory as implying that ‘where feuding is an established practice, there is a “peace in the feud”, because various social mechanisms ensure that few feuds will break out and that those that arise will normally be quickly settled’.17 White goes on to provide a meticulous discussion of the factual circumstances evident from his sources. These raise questions about the limitations of the ‘peace in the feud’ analysis and how violent feud might still prevail regardless of such social mechanisms.18 How does the ‘peace in the feud’ establish itself, for example, in societies in which ‘feuds were intimately associated with dynamic political processes’ and could be ‘linked both to larger political conflicts and to smaller but more continuous struggles between peasants and lords’?19 Even White, however, does not repudiate the Gluckman analysis as such, but adapts it as an interpretative model, though one that should still be shaped in its application by close reference to the historical sources.20 Conversely, therefore, where the historical sources seem to support the assumptions in question, it can be argued persuasively (following Wormald) that the ‘peace in the feud’ may explain much.21 We must remember that Gluckman’s theory simply raises the question of the role of complex kinship ties in disputes in the abstract, and, as Paul Hyams has noted, ‘[e]xactly what men and women made of these cross-pulls in any particular situation is, of course, a matter for investigation’.22 For Scotland, Wormald’s work constitutes just such an investigation. The validity of the Gluckman model of feud is not tested in every detail in relation to the historical sources but Wormald shows how it is strikingly consistent with them. Arguably the role of the kin is the most crucial aspect. A distinctive feature of settlements involving the kin in earlier medieval society had been that customary tariffs reflecting status existed to indicate the level of emendation or compensation that was considered due.23 Importantly, this compensation 17 Stephen D. White, ‘Feuding and peace-making in the Touraine around the year 1100’, Traditio 42 (1986), 195‒263, at pp. 259, 258. 18 See the conclusion in White, ‘Feuding and peace-making’, 259‒63. 19 White, ‘Feuding and peace-making’, 259. 20 White, ‘Feuding and peace-making’, 258. 21 For an example of the historical evidence being found not to readily support the existence of even a concept of feud, see John G. H. Hudson, ‘Feud, vengeance and violence in England from the tenth to the twelfth centuries’, in Belle S. Tuten and Tracey Billado (eds), Feud, Violence and Practice: Essays in Medieval Studies in Honor of Stephen D. White (Farnham, 2010), 29‒53, at p. 48. 22 Hyams, Rancor and Reconciliation, 16. 23 Wormald, ‘Bloodfeud’, 59, referring to tenth- and eleventh-century Scotland and tariffs in the Leges inter Brettos et Scottos. For a recent comparative discussion of

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was owed not only to the injured party but also to the kin-group as a whole and to the lord of that kindred in his own right too. Even if by the sixteenth century it is unlikely that any strict tariff system still operated, nevertheless the rights of the kin-group to compensation were still maintained.24 It is this evidence of the direct interest of the kin-group in securing compensation that provides a particular basis for arguing that there was a ‘peace’ in the Scottish feud in terms of the Gluckman model. On this basis the Scottish feud can be seen not so much as evidence of a society prone to violence and disorder but rather, as Wormald argues, as ‘a force for peace’ within such a society.25 In the Scottish context, therefore, lordship and kinship do seem to provide the social structures that acted to promote peace through their engagement with feuds. The evidence of bonding, and the involvement of the wider kin in settlement – formally recognised in the compensatory process involving assythment, letters of slains, and the requirements for the purchase of remissions – may suggest that violence was indeed considered to be dysfunctional and preferably avoided. Consequently, despite Brown’s criticism, Wormald’s adoption of the model of the ‘peace in the feud’ to help explain the Scottish feud still seems highly persuasive, even if there remains scope for argument about how successful settlement processes were in terminating or discouraging the violence of the feud.

III Wormald has applied this analysis brilliantly to late medieval and early modern Scotland. What are her claims in relation to the Scottish evidence? Perhaps three main claims can be isolated for discussion. First, following the anthropologists, and the earlier work of R. R. Davies on reinterpreting the bloodfeud in medieval Wales, Wormald argues that feud in Scotland was neither a symptom of lawlessness and unceasing violence, nor simply a means to achieve peace, but was a custom-bound method of achieving justice. It was governed by a pattern of norms that are termed by Wormald ‘the justice of the feud’ (a highly suggestive phrase seemingly coined by her), whose norms rested on a different set of principles from those informing the justice of the courts. In her study of bonds of manrent, maintenance and friendship, Wormald refers to ‘the early modern attitude that peace was a desirable thing but that it would be achieved very often through violence’.26 The justice of aspects of pre-Norman compensation payments in Scotland see Patrick Wormald, ‘Anglo-Saxon law and Scots law’, SHR 88 (2009), 192‒206. 24 Wormald, ‘Bloodfeud’, 66‒7, 89. Cathcart also adopts this interpretation in Kinship and Clientage, 94, note 112. 25 Wormald, Court, Kirk and Community, 36. 26 Wormald, Lords and Men, 116.

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the feud is seen as ‘private’ justice, typified by ‘personal arbitration and settlement by kin and lord outside the courts,’ and operative within a private order represented by the kindred.27 Public justice, in contrast, is that of the courts, administered to uphold a public order overseen by the crown, and by government generally. Secondly, responding to the question how such private methods of dispute resolution related to public order, Wormald’s contention is that, despite deriving in her view from different principles and mechanisms, public and private justice were far from incompatible and far from being in conflict. Her argument entails therefore that the apparent shift in the sixteenth century from private to public justice (with the decline of the feud and the development of the Court of Session) does not need to reflect any simple suppression of one mode of justice in favour of another, but instead is likely to reflect a complex interaction between the two that endured over time, the precise pattern of which was based ultimately on what was found to be most effective by the parties themselves.28 The third claim by Wormald relates to how it was that public justice came to supplant feud as a mode of achieving justice. She argues that because public and private justice did not directly conflict, the eclipse of the feud in this shift from private to public justice was accomplished not through the disappearance or elimination of the ‘justice of the feud’, but through its acceptance and assimilation by the courts. With the success of the Court of Session in the sixteenth century, it is argued, lawyers were more prevalent and influential in late sixteenth-century Scottish society than ever before. In Wormald’s view, the culture of private settlement outside legal procedure, which she associates with the feud, came to meet increasing resistance from lawyers, but the lawyers’ approach was to absorb the justice of the feud into legal procedures and thus take it over.29

IV Before Wormald’s claims can be analysed, the nature of disputes in early modern Scotland requires some further elucidation. First, a feud could provide a means to resolve a great many different types of dispute, not all of which could alternatively have been resolved through legal process. Clearly many disputes could be essentially political and concerned more with power, authority and influence rather than a desire simply to assert solidly legal claims. The localism of Scottish sixteenth-century society intensified this, Keith Brown observing that ‘there was enough fluidity within local power 27 Wormald, ‘Bloodfeud’, 57, note 13; p. 55. 28 Wormald, ‘Bloodfeud’, 72. 29 Wormald, ‘Bloodfeud’, 86‒90.

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structures to ensure a constant round of manoeuvring and aggression to weaken a rival’s lordship and strengthen one’s own’.30 And even the exercise of a jurisdiction could be a political and contested act in a society with a far from uniform, and highly complex structure of royal, baronial, ecclesiastical and burgh jurisdiction, which was often subject to many exemptions or supplemented by special commissions.31 Brown in particular has stressed the dynamic nature of disputes, and the presence of non-justiciable and intangible factors, commenting: while a case could appear to be about a killing, the context in which the killing took place may have been a quarrel over land or jurisdiction. Very often the underlying cause was forgotten about as honour and vengeance maintained a conflict which was simply about feuding itself.32

Second, we must ask how parties in dispute perceived the interconnections between their various underlying interests. Historians have emphasised ways in which the basic approach to dispute resolution in general – and feud in particular – was shifting by around the end of the sixteenth century. But it may also be plausible to suggest that it was the very nature of a dispute and how its constituent elements were perceived to inter-relate that were about to change. A dispute that had become the subject of a feud might have often involved different strands that were seen to be knotted together, but could have been unravelled and pursued independently when it was to the advantage of the parties. If, by around 1600, political conflict was beginning to be resolved with less resort to violence then matters of purely legal dispute could have been more readily isolated for judicial determination. This would have had enduring implications for how contemporaries perceived the effectiveness of the different means of resolving a dispute. The causes of disputes that might have led previously to feud would have become easier to differentiate and to disaggregate, so that issues that were indeed justiciable could be addressed more easily through the courts. If so, feud would have become increasingly redundant. It is difficult to make an assessment of this hypothesis, since the final three decades of the sixteenth century experienced political instability and factionalism to an unusual degree – something that has been understood to explain some of the prevalence of feuding at that period.33 The consequences of the Reformation may also have undermined older ways in which the authority of the church could be mobilised for peace. Hector MacQueen has pointed to ‘the apparent decline of girths into disuse after 1560’, noting that ‘the Reformation uprooted the source of authority for their officers and did not 30 31 32 33

Brown, Bloodfeud, 72. Brown, Bloodfeud, 73. Brown, Bloodfeud, 79. Brown, Bloodfeud, 5‒6, 21‒22.

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replace it’.34 But a change in how disputes were being framed would help to explain, at least in part, why recourse to the courts came to seem more effective than a feud by the seventeenth century, at least in relation to many types of dispute. If the typical component parts of disputes were increasingly amenable to the effectiveness of a diversity of methods of resolution, then a feud could have come to be seen as too inflexible and uniform a response. The kind of all-inclusive settlement that a feud tended to require might have come to seem lacking in stability, at least when there were legally defined interests at stake that could be addressed – and therefore challenged – in other ways. In terms of procuring an effective and satisfactory resolution, it may have come to seem more to the advantage of parties to isolate justiciable matters for formal redress in the courts. And even if legal redress were not sought, the strength of claims that were justiciable would count in the context of any compromise leading to an informal settlement. Such a view can only be a hypothesis without further research on the nature of disputes, and on how they were structured and resolved. But it certainly does not seem inconsistent with Wormald’s general thesis about the decline of feud. At the same time, it raises an underlying question about what lay behind changing perceptions of effectiveness, and how these might have related to even deeper changes in the fabric of Scottish society, as well as to the effects of the late sixteenthcentury governmental campaign against the violence of the feud, epitomised by the act of 1598 ‘anent removeing and extinguischeing of deidlie feidis’.

V Turning to Wormald’s central claims, her thesis about feud concerning not lawlessness but the achievement of justice should first be acknowledged as a brilliant interpretation of the Scottish evidence and one that has with good reason become the orthodox view. We have seen that at a theoretical level subsequent work has broadly followed Wormald’s interpretation. The main qualifications relate to the role of violence and of honour in feud. Keith Brown has argued convincingly that Wormald has significantly underplayed the levels of violence that feuding society in sixteenth-century Scotland had to endure, and that aspirations towards peace were often militated against by the desire to protect honour. But beyond this difference in emphasis, Brown seems to accept the basic validity of Wormald’s conception of ‘the justice of the feud’. We have seen how he is sceptical about but does not explicitly reject the theory of the ‘peace in the feud’, which provides one important foundation for Wormald’s approach. Significantly, perhaps, he does not base the 34 Hector L. MacQueen, ‘Girth: society and the law of sanctuary in Scotland’, in John W. Cairns and O. F. Robinson (eds), Critical Studies in Ancient Law, Comparative Law and Legal History (Oxford, 2001), 333‒52, at p. 351.

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analytical structure of his enquiry around testing the ‘justice of the feud’ model, and therefore this conception is not itself subjected to particular critical analysis. Indeed, the expression is only relied on towards the very end of his book.35 Brown’s analysis is, nevertheless, implicitly premised upon the validity of the concept of ‘the justice of the feud’. This is apparent from references during the course of the book to aspects of dispute resolution that are distinctive in relation to feud, such as that ‘every feud-settlement offered something to both sides’; the containment of violence occurring through ‘the refusal by both sides to discard all restraint’, so as to establish limits ‘which were largely acceptable to both sides’; the ‘justice of the feud’ is also referred to explicitly, as well as ‘the justice of the kindreds’, ‘the principles of private justice’, and ‘the bloodfeud’s own principles’.36 Although Brown thus relies on a conception of ‘the justice of the feud’, and by extension the underlying Gluckman-inspired concept of the ‘peace in the feud’, one important difference between his analysis and that of Wormald is worth noting, namely that he has a more critical and dynamic conception of the peace achieved through the feud than Wormald. He comments, for example, on ‘limitations in the effectiveness of private justice which were partly responsible for a change in how feuds were handled towards the end of the century’.37 He notes the fragile nature of peace in sixteenth-century Scotland, and points out that it could not be regarded as durable when achieved, commenting that ‘while local society could at times find the human resources to punctuate feud with peace, it would not find a way of guaranteeing that peace’.38 Kinship structures, lordship and a culture of settlement were therefore incapable of maintaining continuous and stable peace: indeed, that was the very reason for feud, as a way of guiding and imposing a pattern upon disruptive behaviour. Brown observes that the shift that went with the decline of feuding had to involve peace becoming ‘more highly valued than honour or power’, although he argues that ‘it had to be institutionalized by a coercive authority’, noting the crown’s ‘growing ability to ensure that settlements were made and kept’.39 The peace achieved through the feud was thus not necessarily permanent or stable, and it must be recognised that changes in patterns of dispute resolution would also have reflected changing attitudes to what peace could or should mean. However, in other respects Brown still accepts Wormald’s basic argument that the bloodfeud had its own principles and that these were 35 The first reference in terms seems to be Brown, Bloodfeud, 244, the end of the final chapter being at p. 274. 36 Brown, Bloodfeud, 53; 97; 244, 246, 260, see also pp. 266, 272 for the ‘justice of the feud’ or of the ‘bloodfeud’. 37 Brown, Bloodfeud, 57. 38 Brown, Bloodfeud, 101. 39 Brown, Bloodfeud, 102.

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eventually absorbed by the law, though he does not attribute the decline of the feud simply to this development.40 So the most substantial departure in Brown’s analysis remains one of emphasis, relating to the levels of violence involved in feud in sixteenth-century Scotland, and to some extent to the role of violence itself as being central to how men behaved. He has observed that ‘local politics were very much the politics of conflict and confrontation … and the tool of that conflict in this society was violence, actual or threatened’.41 As Brown argues, ‘feuding was … an essentially violent means of resolving disputes’, commenting that ‘indiscriminate vengeance was common to a large number of Scottish feuds’, and that ‘interpersonal violence was the main business of feuding’.42 In itself this represents a very significant difference in emphasis from Wormald’s interpretation (the basis for which was subsequently accepted and taken account of by Wormald)43 and has been supported by subsequent research.44 However, it also does not seem to require or propose a theoretical alternative to the ‘justice of the feud’.

VI In terms of reassessing Wormald’s central claims, however, it is the relationship between feud and justice that still requires further probing, in particular the concept of ‘the justice of the feud’. Overall, we have seen that Wormald stresses that the purpose of the feud was settlement and its objective compensation – she refers to ‘the principle of compensation to those wronged which lay at the heart of the justice of the feud’. Moreover, she argues that ‘peace after the feud depended on acceptance of a settlement by both sides’.45 Nevertheless, Wormald’s concept of ‘the justice of the feud’ is a complex one, which does not simply embody one principle or idea. Rather, it embraces (and perhaps collapses together) several distinct ideas, and it cannot adequately be subject to critique unless the component ideas are recognised and distinguished. These might be: 1. Kin involvement: in a feud redress is due not just to the victim but also to the kin-group. 2. Composite definition of disputes: the immediate dispute can connect with other disputes between the same parties, as well as encompassing the wider relations and conflicts of respective lords and kin-groups, many if not all of which may need to be addressed in any settlement, including non-material factors like honour. 40 41 42 43 44 45

Brown, Bloodfeud, 260. Brown, Bloodfeud, 101. Brown, Bloodfeud, 33, 27, 30‒1. Wormald, Lords and Men, p. vi. Wasser, ‘Violence and the Central Criminal Courts’, 21, 37, 66. Wormald, ‘Bloodfeud’, 66, 73.

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3. Compensation rather than vengeance or punishment is a sufficient form of redress for harm. 4. Settlement takes a composite form: compensation and other aspects of settlement of the underlying or wider dispute are typically assessed together as a whole. 5. Settlement is made with a view to effecting a lasting if not permanent resolution that satisfies both sides. 6. On both sides some compromise is customary.

With regard to these features, it may be suggested that the concept of ‘the justice of the feud’ functions very well to identify a structural feature of late medieval Scottish society, since all these features existed and were interconnected. However, it is perhaps less helpful when it comes to explaining change over time in patterns of dispute resolution during the sixteenth and seventeenth centuries. This can be explored through a number of more detailed points. First, it is not clear that feud settlement can be seen as simply compensatory. Against this view, for example, J. H. Baker has observed more generally that ‘the purpose of emendation payments was overtly retributive, yet it was also compensatory’.46 This is consistent with Robert Black’s view that compensation was not always an entitlement following injury, in line with his argument that in Scotland ‘no payment was due where the culprit suffered capital punishment’, meaning that no compensation was due once this form of retribution had been inflicted by the crown.47 At the very least, we need to be cautious in making such assumptions until tested by further research. A second point is that settlements were by definition consensual, but that even within the sphere of private justice there could be different forms of settlement involving different procedures, not all of which involved assent of the parties to the precise terms. Indeed, assent to the precise terms occurred only when parties literally negotiated a compromise for themselves or when they were party to the negotiation of a compromise by others acting in their interest but which they adopted or ratified. However, many settlements involved parties simply agreeing to abide by the decision of chosen persons, or perhaps to accept the further verdict of arbiters or a nominated group of informal judges. There could still be scope in such cases for acceptance of the outcome to depend not directly on the consent of the parties – which was merely given in advance to the procedure, at the point when the submission was made – but more on respect for the authority of individuals or of the 46 J. H. Baker, An Introduction to English Legal History (4th edn, London, 2002), 501. 47 Robert Black, ‘A historical survey of delictual liability in Scotland for personal injuries and death, part I’, Comparative and International Law Journal of South Africa 8 (1975), 46‒70, at p. 55.

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kinship groups and associated lordship to whose representatives the dispute would be submitted, as arbiters or otherwise. In addition, when arbitration was involved, the parties were legally bound to accept the decision of the arbiters as a result of their original voluntary submission to arbitration, which had the force of a contract – arbiters were not meant to ‘negotiate the issues between the parties’, as Brown suggests, but rather to decide them.48 The need for acceptance of a settlement is indeed in obvious contrast to the outcome of legal process, which is aimed at vindication of rights not compromise. Legal process results in a decree, enforcement of which is ultimately coercive and dependent upon legal rather than social sanctions, and in which the enforcement of one party’s rights is necessarily at the expense of the other party.49 Indeed, Wormald acknowledges something of this when observing that ‘settlement after murder could be more easily achieved, because it was to the advantage of both parties, than resolution of land dispute, which involved gain to one and loss to the other’.50 It should also not be forgotten that legal action carried with it the risk of losing, a risk that could be exchanged for the certainty involved in a negotiated settlement, or where the risks attached to weak claims could be pooled with stronger claims in a submission to arbitration.51 But even when settlements were made and voluntarily accepted, parties could and did change their minds and on occasion dishonour them, as they could too with decrees of courts or decrees arbitral. So it was not the case that there was a distinct ‘justice of the feud’ that necessarily engendered more stable outcomes because of being based on the voluntary acceptance of the parties. A third point about Wormald’s conception of the justice of the feud is that, if both feud and court actions are seen as directed towards achieving results that were ‘just’, then what was considered just could hardly have been divorced from the evaluation and protection of legal rights. In a society with a common law and a centuries-old system of land tenure, no calculus of the interests at stake in a dispute could be made without regard to the legal claims and rights of the parties, and the strength of those claims. And it seems probable that the development of a central civil court from the later fifteenth century onwards would over time have intensified the weight to be attached to legal rights, since the more effective judicial process of the Court of Session, the increase in resort to central litigation during the sixteenth century, and the reliability of central record-keeping would have offered ever greater opportunities to contest claims that were not legally sound (though to test this hypothesis further research is needed).52 Thus the apparently 48 49 50 51 52

Brown, Bloodfeud, 239. Wormald, ‘Bloodfeud’, 66; Godfrey, Civil Justice, 384, 406. Wormald, ‘Bloodfeud’, 75. Godfrey, Civil Justice, 407. Godfrey, Civil Justice, 436, 448‒9.

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categorical distinction between the ‘justice of the feud’ and that of the courts risks failing to acknowledge an unavoidable connection between them in practice and a deeper common basis for both. It also seems unlikely that many feuds would have been carried out without some accompanying legal process by the sixteenth century, at least if they involved possession of land, or that a world of pure feuding existed where parties trusted to the old methods of the justice of the feud but ignored the king’s justice in the courts. The contrast between two types of ‘justice’ is at least from this perspective somewhat too stark. What is really being contrasted is a resolution based on settlement (and compromise) with one based on the vindication of legal rights. But awareness of structures of legal rights and the strength of legal claims must have always informed settlements, with or without accompanying court action. Conversely, a decision to litigate did not foreclose the option of a negotiated settlement either, and may often have helped create the pressure to advance one.53 Here the maintenance of a firm distinction between the justice of the courts and of feud is also problematic with regard to the prevalence of private arbitration, since arbitration was in itself a formal process governed by legal norms whose deployment could reflect many potential advantages it had over other methods of addressing the resolution of a dispute, including litigation.54 Arbitration could be speedier, and could encompass a range of disputed matters in one resolution, while the parties could choose the panel of arbiters. Thus, parties did not necessarily opt for arbitration simply because its outcome would be geared to the goal of restoring harmony between them rather than achieving a strictly legal determination.55 Indeed, in determining the outcome arbiters could not have avoided having some regard to the legal strength of any legal claims involved. Where landed interests were at stake, parties in dispute would still have had to rely on presenting the arbiters with the legal documents necessary to support the claim. The medieval common law had long since established that security of tenure was best attested by the clear evidence of charters and other legal documents, and this imperative would not be affected by the choice of forum in which a dispute was being addressed. Moreover, arbitration very often interacted subsequently with public justice, since it resulted in a decree from the arbiters that could be enforced through court action.56 There was therefore advantage in the terms of the resolution being consistent with legal understanding of the rights of the parties. 53 A point also made by Boardman, ‘Politics and the Feud’, 82: ‘the threat of imminent judgement exerted pressure on the contesting parties to bring about a settlement by the way of “luf ”.’ Also see Davies, ‘Law and Order in Stirlingshire’, 399‒400, for a similar point in respect of criminal prosecutions. 54 See Godfrey, Civil Justice, ch. 8. 55 Godfrey, Civil Justice, 378‒90. 56 Godfrey, Civil Justice, 409‒13.

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A fourth point is that the compensatory nature of settlements achieved after feud is a less distinctive feature of the ‘justice of the feud’ than it might appear. The compensatory basis of feud settlement is implicitly presented in Wormald’s analysis as especially noteworthy because of the contrast with the infliction of retribution and punishment that might otherwise be the more natural primary response to violence in a system of administration of justice. And yet this contrast only exists to the extent that compensatory principles were foreign to the legal system and, at the same time, that retribution and punishment did in fact play a significant role in the administration of justice in sixteenth-century Scotland. However, this is questionable, precisely because the functioning of both civil and criminal law in this period was primarily directed towards the achievement of compensation, and punishment was probably not a typical outcome even to a criminal prosecution. Crimes could be and often were pardoned and remissions granted by the crown when the victim had been compensated. Since criminal prosecution was usually a private matter, that process depended primarily on the initiative of the victim or their kin, whose agreement to the offer of compensation was required before a pardon could be considered.57 When remissions were granted, it was therefore not a question of the legal system turning a blind eye to the ‘justice of the feud’, whose principles were otherwise foreign to it, but rather it was simply the way in which the legal system’s own principles of compensation for wrongs were effected at this time.58 Subsequently, especially from the seventeenth century onwards, the procedures for achieving compensation were vastly elaborated by the Court of Session within the system of civil justice, instead of being approached through the procedures of criminal justice. The older link to gaining a remission from a criminal prosecution, and the associated quantification of compensation, were left to private settlement processes.59 However, we should not categorise a compensatory approach to dispute resolution as intrinsically and exclusively derived from a ‘justice of the feud’ as opposed to public justice just because this differentiation and development had not yet occurred in the 57 I. D. Willock, The Origins and Development of the Jury in Scotland (Stair Society, 1966), 153‒4. The complex relationship between granting of royal mercy, remissions and protection of the rights of injured parties to compensation through assythment is hinted at in statutes regulating remissions such as RPS 1592/4/89. For further discussion see Goodare, The Government of Scotland, 125. 58 See Hector MacQueen and W. David H. Sellar, ‘Negligence’, in Kenneth Reid and Reinhard Zimmermann (eds), A History of Private Law in Scotland, II: Obligations (Oxford, 2000), 517‒47, at p. 520; C. H. W. Gane, ‘The effect of a pardon in Scots law’, Juridical Review 25 (1980), 18‒46, at pp. 18‒23. 59 For an overview see A. M. Godfrey, ‘The courts of Scotland’, in Mark A. Mulhern (ed.), The Law: Scottish Life and Society: A Compendium of Scottish Ethnology, vol. 13 (Edinburgh, 2012), 131‒54, at p. 141.

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sixteenth century. Wormald notes how the Stewart kings mostly understood that ‘compromise and compensation might be a better answer to crime than a penal code’.60 However, the comparison should not be between compensating injury after feud and prosecuting crime, but between judicial and extrajudicial methods of conflict resolution, both of which recognised the compensatory principle quite separately from the issue of any criminal liability and questions of punishment. A complication in Scotland is that the administration of justice did not yet observe a clear distinction between the criminal and civil functions of court remedies. However, the principle of compensation for wrongful injury, inchoate though it may have been, was already one of the main underlying principles of Scots law, though the development of distinctive civil remedies to provide compensation as conceived by a delictual law of ‘wrang’ occurred only gradually from the late medieval period onwards. Alan Harding has pointed in this regard to a ‘late medieval experience of the improvisation of remedies’ in relation to delictual forms of liability in Scotland, arguing that: although Scots law may never have recognized distinct torts in the English style, complaints of wrongs in the later Middle Ages were answered by the development of distinct remedies, which fulfilled the essential function of bringing delict within the purview of the Scottish courts.61

This also overlapped with developments in the definitions of crimes, with the beginnings of a shift ‘from the world of the bloodfeud towards a public criminal law’, argued by David Sellar to be evident as early as the later fourteenth century.62

VII Nevertheless, although the distinctiveness of the ‘justice of the feud’ may in many ways seem less apparent upon close examination, this does not detract from the larger point Wormald is making in her general claim that compensation was seen as a sufficient response to harm, however violent, and that the norms of a society which accepted ‘the justice of the feud’ did not in addition require vengeance or punishment of otherwise criminal conduct if all concerned parties had received their compensation.63 Wronged parties and their kin were interested ultimately in redress, and this meant extracting 60 Wormald, ‘Bloodfeud’, 79. 61 Alan Harding, ‘Rights, wrongs and remedies in late medieval English and Scots law’, in Hector L. MacQueen (ed.), Miscellany IV (Stair Society, 2002), 1‒8, at p. 4. 62 W. D. H. Sellar, ‘Forethocht felony, malice aforethought and the classification of homicide’, in W. M. Gordon and T. D. Fergus (eds), Legal History in the Making (London, 1991), 43‒59, at p. 50. 63 Wormald, ‘Bloodfeud’, 74.

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compensation, whilst the wider settlement could address all other aspects, including questions of honour. Merely inflicting vengeance or seeing punishment imposed through the procedures of criminal justice would not directly provide compensation. The ‘justice of the feud’ sanctioned retribution to be enacted privately if compensation – through assythment – was not forthcoming, and ultimately unassythed crimes against the person might also be punished by the crown. However, this picture is still unbalanced if we do not acknowledge that parties in dispute did not have to rely solely on informal extra-judicial mechanisms of resolving disputes in order to achieve compensation, but throughout the later middle ages could turn to litigation to pursue compensation as well. Even in sixteenth-century Scotland the compensatory principle was recognised across all judicial and extra-judicial methods of conflict resolution, and was not itself distinctive to the ‘justice of the feud’. To state that throughout the fifteenth and sixteenth centuries ‘the justice for which the kin had originally been wholly responsible was still available’ though it was now also ‘part of the justice offered by crown and courts’ therefore risks overlooking the existence of the compensatory principle within the legal system, as embodied in the gradual development of civil remedies alongside criminal sanctions to which reference has already been made (though concerning which much more research needs to be done). In other words, the situation in which assythment itself could become a court remedy in the seventeenth century, providing compensation for personal injury, was only possible because the legal system already accepted the principle of compensation for harm – it did not need to borrow it or take it over from the ‘justice of the feud’.64 Finally, there is also a danger of overlooking the case for regarding litigation and feud as simply two means of securing the same end, namely an outcome embodying what would be perceived by those with an interest as just.65 Whilst it was only with a court decree that the measure of justice would be the legal right, nevertheless, as already argued, informal settlements and arbitrations would also have to take account of the background of legal rights. Here, Keith Brown’s analysis is instructive, since, apart from acknowledging the role of violence more directly, it also seems to see the striving for justice as a common strand across different ways of resolving disputes, commenting that ‘vengeance was self-help justice, however subjective it may have been, and while the violence could become a self-perpetuating cycle of apparent meaninglessness, justice, or the lack of it, remained its root cause’.66 64 See Black, ‘Historical survey of delictual liability’. For more on private and public justice in this period see Anna Groundwater, ‘“We Bund and Obleiss Us Never More to Querrell”: Bonds, Private Obligations and Public Justice in the Reign of James VI’, Chapter 8 below in this volume. 65 Wormald, ‘Bloodfeud’, 66. 66 Brown, Bloodfeud, 43.

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Wormald has presented a brilliant analysis of enduring value as an explanation of the role that feud played in Scotland. However, once attention turns away from the feud to other mechanisms of dispute resolution, and an integrated picture begins to be drawn, the emphasis on a ‘feuding society’ and the ‘justice of the feud’ requires some qualification. Just because feud was such a distinctive feature of sixteenth-century Scotland does not make it the governing concept for all analysis of disputes, even if by the end of the sixteenth century many non-violent disputes could also be commonly regarded as feuds.67 The most serious problem with the concept of the ‘justice of the feud’, however, is that it associates certain principles with feud that were actually much wider. These principles are ones we might associate generally with corrective justice, and would have concerned the transacting of any settlement, for the achievement of which feud was only one means. Feud was indeed simply a means – ritualised violence, supported by the kin – by which parties could create pressure to be offered redress and to reach a settlement. Without settlement they and their kin would continue to suffer from disorder, albeit disorder that was legitimated by the culture of the ‘justice of the feud’.

67 See Wormald, ‘An early modern postscript’, 191: ‘It was indeed a feuding society, in the sense that the word “feid”, as defined in an act of parliament of 1598, covered everything from the full-scale and classic feud which involved vengeance killing to civil dispute from which violence was entirely absent’.

chapter 7

Bonding, Religious Allegiance and Covenanting JANE E. A. DAWSON In her seminal book Lords and Men, Jenny Wormald achieved the important double that great historians accomplish. She both dealt superbly with a particular body of evidence and also revealed an entire world and guided the reader into it and around it. By opening up this new territory of lords, men and their bonds Jenny has given those who follow in her footsteps a chance to explore, to find exciting paths to travel and to discover new ways of examining familiar landmarks. Although the second achievement has probably overshadowed the first one, her classification and explanation of the actual bonds has received the accolade of being silently absorbed into the standard accounts and becoming part of the ‘givens’ for understanding Scotland during the late medieval and early modern period. These days the categories of bonds of maintenance, manrent, friendship and political and religious bonds can be found in historical discussions from school essay to specialist article. This exploration will start with Jenny’s list of ‘religious bonds’ and chart how conventional bonds grew into a new type of bonding expressing a profound sense of religious allegiance and identity and flowing into the covenanting tradition.1

I As Jenny demonstrated, a bond of maintenance reflected the perspective of the ‘lord’, usually a noble overlord or feudal superior. It detailed how the lord viewed his relationship with his ‘man’ and in particular what he would be doing to ‘maintain’ his ‘servitor’.2 The Dictionary of the Older Scottish Tongue (DOST) defines ‘maintenance’ as: 11 Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985), appendix C: ‘Political and Religious Bonds’. The religious bonds are calendared at pp. 410‒12. 12 Wormald, Lords and Men, chs 2 and 4.

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backing, support, protection, granted by, or due from, one person to another, his dependants, possessions etc. … As by a lord to his man, one ally to another … Also band, letter(is) of maintenance, a formal contract of such backing or protection.3

Bonds of maintenance were typically made up of four discrete sections. First, the preamble explained that it was the ‘bounden duty’ of the lord to help his man. Second came the promise to apply power and strength and ‘very lyves’ in support of the particular people who were named or identified. Third, the actual maintenance clause contained the promise to ‘mantene, nuryss and defende’. Finally, as befitted a legal document, came the subscription by the parties to the bond, along with witnesses, date and place.4 On 3 December 1557 a bond of maintenance was drawn up offering to defend a small group of men from potential threats to them, including a summons to court or ‘day of law’. So far, so routine. What was more unusual was that the bond was issued conjointly in the name of five different titled lords. Rather than their own dependants, protection was extended to an unusual group of recipients: those who preached and those who heard sermons. What was startlingly different from a usual bond was the overtly religious language and purpose. Though wrapped in ideologically charged terminology, the four elements constituting an ordinary bond of maintenance were plainly present: [Preamble] ‘We persaving how Sathan in his membris the Antechrystis of oure tyme, crewellie dois raige seiking to downebring and to destroye the Ewangell of Christ and his Congregatioune: awght, according to oure bounden dewtye, to stryve in oure Masteres Cawss, even vnto deth: Being certane of the victorye in him: The quhilk our dewtie being weill consyderit: [Promise] We do promiss before the Maiestie of God and his Congregatioune that we (be his grace) sall with all diligence continewallie applie oure haill power, substance, and oure very lyves, to mantene, sett forwarde, and establische the maist blessed Worde of God, and his Congregatioune. And sall lawboure at oure possibilitie, to haif faithfull Ministeres purelie and trewlie to minister Christes Evangell and Sacramentes to his Peopill: [Maintenance Clause] We sall mentene thame, nwryss thame, and defende thame, the haill Congregatioune of Christ, and everye member therof, at our haill poweris and waring of our lyves againis Sathan and all wicked power that dois intend tyrannye or troubill againis the forsaid Congregatioune: Onto the quhilk holie Worde and Congregatioune we do joyne ws: and also dois forsaik and renunce the Congregatioune of Sathan, with all the superstitioune, abhominatioune, and idolatrie therof. And mareattour sall declare oure selwes manifestlie innemyes tharto. [Subscription] Be this oure faithfull promiss before God, testefyit to his Congregatioune, be oure Subscritptiounes at thir presentes. At Edinburgh, the (blank) day of 13 DOST, s.v. ‘mantenance’ (italics in original). 14 This is adapted from the discussion in Wormald, Lords and Men, ch. 4.

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December, the zere of God ane thowsande fyve hundreth fiftie sevin zeres: God callit to Wytnes. Archibald Argyll Glencairn Mortoun A Lord of Lorn Jhone Erskyne5

A misconception about this bond’s signatories has been prevalent since the sixteenth century. As was appropriate for a powerful bond of maintenance, all five men who signed were earls and lords. The first to sign was Archibald, fourth earl of Argyll, one of the most powerful peers in the realm and the group’s senior figure in authority and age. He was followed by Alexander Cunningham, fifth earl of Glencairn, a long-standing and fervent supporter of the Protestant cause. James Douglas, fourth earl of Morton, was the third man to sign, and was followed by Archibald Campbell, Lord Lorne, son and heir to the earl of Argyll. Finally, John Erskine signed; this was the sixth Lord Erskine who was later earl of Mar and Regent of Scotland. It was assumed until recently that the final signature belonged to John Erskine of Dun, the laird who later became a minister in the Reformed Kirk and Superintendent of Angus and the Mearns. In the original manuscript of his History John Knox assumed that Erskine of Dun signed. Since Knox had not been in Scotland in 1557 and had no first-hand experience of the bond, the confusion probably arose because the bond seems to have been circulated and Erskine of Dun probably signed it at this later stage. Knox recorded in his History that Erskine of Dun and the lairds of the Mearns had made a similar declaration in 1556 binding themselves together to support the Protestant cause. No text for this bond has survived, and it is not clear whether a written document was created.6 Following Knox, the editor of The Works of John Knox, David Laing, declared, There is no reason to doubt (having Knox’s authority for the fact) that the last name was that of John Erskine of Dun, and not John Lord Erskine. Knox it will be observed, to these five names adds, Et cetera, and expressly states, that this Bond ‘was subscryved by the foir-writin and many others’.7

This view has been repeated by later commentators. However, Laing also printed a facsimile of the signatures to the bond from the original document that had been exhibited by the Reverend James Young at the 1860 Tercentenary of the Reformation.8 When compared with his other signatures, the Erskine 15 Knox, Works, vi, 674‒6. 16 Wormald, Lords and Men, 412; Knox, Works, i, 250‒1; Frank D. Bardgett, Scotland Reformed: The Reformation in Angus and the Mearns (Edinburgh, 1989), 52. 17 Knox, Works, i, 273; vi, 674‒6 (Laing’s italics). 18 The original of the First Band is at NLS, Charter 902.

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signature on the First Band matched those of Lord Erskine.9 The recognition that the final signature was penned by another peer, rather than a laird or minister-in-waiting, underscores and greatly strengthens its significance as a noble bond of maintenance. Each member of that first group was drawn from the highest social and political rank in the realm and ensured that the bond represented a step change in support for the Protestant movement. Most Scots viewing the bond in 1557 would assume that this was what nobles did: lords protected their men. They would also have understood that some senior members of the Scottish nobility were willing to give public support for Protestant preachers and preaching, and protect those who attended the ‘heretical’ sermons and other services. As with all bonds of maintenance, the implication was that, when necessary, protection would be armed; ‘our haill poweris and waring [i.e. spending] of our lyves’ were promised for the fight. In addition, the ‘enemies’ were identified as Satan and the ‘members of Antichrist’. Although they were not named, this targeted those who might be conducting a campaign against heresy and ‘dois intend tyrannye or troubill againis the forsaid Congregatioune’. By association, this included the entire ecclesiastical hierarchy in Scotland and anyone prepared to support them. The traditional bond formula allowed the peers to declare publicly that they were ‘manifestlie innemyes’ to that entire ‘congregatioune of Sathan’.

II The document signalled a shift, socially and tactically, in the profile of the scattered groups of Protestants in Scotland. The five peers were promising to maintain, nourish and defend the ‘haill Congregatioune of Christ’, the adherents of what remained a heretical movement. With that protection in place, from being an underground network the Protestants were able to emerge into the public gaze. They could now operate openly as a pressure group with a specific programme for religious reform, to ‘establische the maist blessed Worde of God, and his Congregatioune’. The use of the language of lordship declared that noble power and even military force might be employed to implement this religious programme. There was a new willingness to make an open and direct challenge to the Catholic hierarchy and defend an alternative form of worship. Though the format of the document and the basic provisions followed the standard maintenance contract, something new had emerged from this adaptation of traditional formulas. One obvious omission was the lack of an equivalent bond of manrent, the normal mirror image of a bond of maintenance.10 In a departure from conventional practice, no reciprocal action on their part 19 NLS, MS 73, fos 20‒1, 29, 32‒7. 10 Wormald, Lords and Men, ch. 4.

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was required from the ministers and ‘congregation’ to be protected. This was not simply an unwillingness to enter into contracts concerning matters of worship or with preachers.11 In addition to describing the central purpose of the bond in religious terminology such as holy word, congregation of Christ, Antichrist, superstition and idolatry, the First Band contained a specific declaration of religious allegiance and alliance. Two routine components within a bond were altered: the presence of witnesses and the oath on a sacred object such as the Gospels. Since Protestants denied that sanctity could adhere to physical objects, they abandoned the practice of placing their hands on sacred objects whilst taking an oath. Instead the five nobles gave their ‘faithfull promiss’ openly to avow their Protestantism, ‘onto the quhilk holie Worde and Congregatioune we do joyne ws’. Though no one signed the bond on their behalf, the Congregation would be able to bear legal witness or ‘testefy’ to the bond. The real witnesses at the promise-taking were God and Christ. In one sense the five nobles gave to Christ their manrent and allegiance, vowing ‘to stryve in oure Masteres Cawss, even vnto deth’. With its overt declaration of allegiance to God, these innovations created the first religious bond in Scotland, and its significance was encapsulated by Jenny: For the first time this commonplace of Scottish society was turned to religious use: subsumed into the Calvinist idea of the religious covenant, it produced a short and succinct clarion call for the advancement of the new faith, which set a pattern out of which there would emerge, 80 years later, the National Covenant.12

The 1557 document later achieved iconic status within Covenanter thinking and historiography. However, in the middle of the sixteenth century Scots employed the word ‘cunnand’, rather than ‘covenant’, when describing such a bond with God, best exemplified in baptism. In 1552 Archbishop Hamilton’s Catechism had explained, ‘For quhat uthir thing is Baptyme, bot ane faithful cunnand and sickir band of amitie maid be God to man and be man to God?’13 The description of the 1557 bond as the ‘first covenant’ was initially made by James Carmichael at the time of the King’s Confession of 1581. David 11 As that champion bond-maker Colin Campbell of Glenorchy demonstrated four years later, there were no qualms about making a contract with Mr William Ramsay, minister at Inchaiden that specified that he should preach and provide Protestant worship: NRS, contract between Campbell and Ramsay, 28 May 1561, GD112⁄1⁄114. The 181 bonds of manrent made by the Campbells of Glenorchy, listed under ‘Breadalbane’ in Wormald, Lords and Men, appendix A, pp. 205‒49, form the largest group of bonds that have survived. ‘Grey Colin’ had his bonds entered into a special ‘buke of bandis’, GD112/24/2. 12 Jenny Wormald, Court, Kirk and Community: Scotland, 1470‒1625 (London, 1981), 111. 13 The Catechism of John Hamilton, 1552, ed. T. G. Law (Oxford, 1884), 185; DOST, s.v. ‘cunnand’.

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Calderwood later helped create a genealogy of covenants and this flowed into the full-blown Covenanting tradition that became a significant element within Scottish history and identity.14 The inevitable emphasis upon the 1557 bond’s religious language and its role as founding father of the Covenants has obscured its format as a noble bond of maintenance.

III The second religious bond was signed at the start of the Wars of the Congregation in May 1559. It built upon the main theme of the defence of ministers and the Protestant cause. Such protection had become necessary after Knox’s 11 May sermon and the subsequent iconoclastic riot in Perth, the flashpoint that started the Wars of the Congregation. Support had been mobilised from other parts of the kingdom, including the well-organised and committed Ayrshire network.15 On 31 May the earl of Glencairn, Lords Boyd and Ochiltree and the master of Loudoun16 signed a bond on behalf of the Protestant supporters from the West. The goal was more specific than the 1557 First Band; the lords promised ‘thair haill poweris to distroy, and away put, all thingis that dois dishonour to his name, so that God may be trewlie and puirelie wirschipped’. Given that the summoning of Protestant ministers to a ‘day of law’ at Stirling on 10 May had provoked the chain of events, the bond carefully specified that protection was given against the use of legal process, whether on an explicitly religious charge or not. An additional dimension was introduced of an alliance entered into via a bond of friendship.17 In the past the format of bonds of friendship between social equals had slipped into political bonds with a specific political objective; it was a small step to use the same format for a religious programme.18 The 31 May bond employed the familiar terminology of a bond of friendship, ‘to keap ane constant amitie, unitie, and fellowshcipe togidder’ in order to do ‘all thingis required of god in his Scripture, that may be to his glorie’. The classic ‘all for one and one for all’ clause found in such bonds was included: ‘in case that any truble beis intended againis the saidis Congregationis, or ony part, or member thairof, the haill Congregatioun shall concur, assist, and conveane 14 Edward J. Cowan, ‘The making of the National Covenant’, in John Morrill (ed.), The Scottish National Covenant in its British Context (Edinburgh, 1990), 68‒89, at p. 70; J. Lumsden, The Covenants of Scotland (Paisley, 1914). 15 Margaret H. B. Sanderson, Ayrshire and the Reformation: People and Change, 1490‒1600 (East Linton, 1997) ch. 7. 16 Sir Matthew Campbell of Loudoun, who succeeded his father Sir Hugh in 1561. He signed as Campbell of Teringland or Terrinzean in Kyle. 17 This category of bond is listed in Wormald, Lords and Men, appendix B. 18 Wormald, Lords and Men, appendix C, where political and religious bonds are listed as a single category.

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togidder, to the defence of the samin Congregatioun, or persone trubled’.19 The Western lords made this bond in Perth with the fifth earl of Argyll and Lord James Stewart, Commendator Prior of St Andrews.20 Though initially supporting the Queen Regent, those two nobles had been persuaded to change sides.21 In the 31 May bond, and another signed with some Perthshire lords the following day, Argyll and Lord James made a public commitment to join their co-religionists.22 Their switch of allegiance made the two nobles the effective leaders of the self-styled ‘Lords of the Congregation’. As the name indicated, these ‘Lords’ expressed their aims in the ways they knew best, within the format of bonds and the language of lordship. At Stirling on 1 August a brief bond was subscribed that focused upon one particular theme of the bond of amity, the need to hold together. Those who signed declared that they would not be separated by: the craft and slycht of our adversaries, tending all maner of wayis to circumvene us, and be prevy meanis intendis to assailzie everyie ane of us particularie be fair hectis and promisses, thairthrow to separat ane of us frome ane uthir, to oure utter rewyne and destructioun.

The Regent’s attempt to negotiate individually on the tried and tested ‘divide and rule’ formula was to be countered by sharing the content of all communications and making joint decisions about responses to Mary of Guise.23

IV During the war, the Lords of the Congregation utilised bonds to draw together a ‘party of revolution’ to fight the Queen Regent.24 The religious bond was expanded into a general and public bond. Though initially made in Edinburgh, the 13 July 1559 bond survives only in a copy that circulated within St Andrews. It was signed by men conscious of being members of the 19 Knox, Works, i, 344‒5; Wormald, Lords and Men, 411. 20 Argyll, who had succeeded his father in 1558, had signed the First Band as Lord Lorne. His friend, Lord James, was the illegitimate son of James V, later earl of Moray and Regent of Scotland. 21 For a fuller discussion see Jane E. A. Dawson, The Politics of Religion in the Age of Mary, Queen of Scots: The Earl of Argyll and the Struggle for Britain and Ireland (Cambridge, 2002), ch. 3. 22 1 June bond with Lord Ruthven, the earl of Menteith and William Murray of Tullibardine, discussed in Dawson, Politics of Religion, 92. 23 The names of those making the bond have not survived: Knox, Works, i, 381‒2; Wormald, Lords and Men, 411. 24 Gordon Donaldson’s phrase in his All the Queen’s Men: Power and Politics in Mary Stewart’s Scotland (London, 1983), ch. 3.

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‘Congregatioun’ and, crucially, drawn from a variety of social ranks.25 This general bond took the format one further stage by extending a noble alliance to include everyone who supported the common religious purpose and were willing to fight for the cause. To sign was to promise to ‘sett up the trew religioune of Christe’, and ‘with our haill power and diligence to walk fordwart in the waiis of the Lord, laboring to destroy and put downe all idolatrie, abhominationess, supersitioness and quhatsumever thing dois exalte the self against the majestie of our God’. Unlike the 31 May document, where representative lords signed on behalf of the Western contingent, the July bond had ordinary St Andrews craftsmen, such as the saddler, John Biccarton, adding their names.26 In St Andrews 331 men signed the bond, though no female Protestants since it had a military element. The language of maintenance had been pushed to the background, with the emphasis shifting to making a commitment to ‘june ourselfis togiddir as memberis of ane body’ and to ‘bind and obliss ourselfis, in the praesence of our God, of his Sone Jesus Christe, calling for the Haly Spirite to strenth us to performe the same’. The Trinitarian formula and the devotional language brought the bond closer to the parallel development of accepting a confession of faith and making a recantation of former beliefs.27 Such general bonds circulating in areas where the Congregation had control became a testimony of religious allegiance. Being bound into ‘one body’ with its strong associations with sacramental unity turned adherence to a general bond into a badge of Protestant identity. The combination of a religious purpose with a national cause added the final ingredient to the bond or covenant, and one that came to haunt the covenanting tradition. The ‘last bond’ of the Congregation signed by most of the Scottish political nation on 27 April 1560 at Leith reflected the changing agenda of the party of revolution. The religious purpose was now defined more precisely as procuring ‘by all meanis possibill, that the treuth of Goddes word may haif free passage within this Realme, with due adminstratioun of the sacramentis, and all thingis depending upoun the said word’. The Congregation had added a patriotic appeal to broaden its support base and make the diplomatic and military alliance with rebels more palatable to Queen Elizabeth of England. Alongside the reformation of religion was placed the freeing of the kingdom from French domination as a parallel goal: 25 Register of the Minister, Elders and Deacons of St Andrews, 1559‒1600, 2 vols, ed. D. H. Fleming (SHS, 1889‒90), i, pp. vii–viii, 6‒7 (text), 8‒10 (list of 331 names). 26 Biccarton later fell out with the St Andrews Kirk Session and was excommunicated, though ‘he had assistit the congregacion wyth his body armit in defence againis the inimeis impugnoris of the trewth’: Register of St Andrews, i, 195. 27 The recantations of some of the priests in St Andrews were entered in the Kirk Session Register immediately after the 13 July Band: Register of St Andrews, i, 10‒18.

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‘[we] concur and joyne togidder, taking anefald plane pairt for expulsioun of the said strangeris, oppressouris of oure libertie, furth of this Realme’.28 The apparently timeless language taken from the bonds that deliberately concentrated upon general aims of unity and amity, defence and maintenance had given the Lords of the Congregation a remarkably helpful set of formats and phrases from which to construct the general religious bond. The adaptation of the language of lordship also furnished a patina of comforting and familiar tradition to cover their religious and political revolt. By 1560 the ingredients of the religious bond or covenant had been assembled: a religious purpose to uphold preaching the ‘Evangel’ and ‘true’ worship; protection and maintenance for preachers and all members of the ‘congregation’ from their enemies; a single alliance or party held together by the ‘all for one and one for all’ clauses; membership of the alliance open to all willing to support the cause, irrespective of rank; a declaration of religious allegiance and confession of faith with God as witness; a link between national and religious causes. Although it was a necessary strategy in 1559‒60, running two purposes in parallel weakened rather than strengthened a religious bond. An internal tension undermining its coherence and unity was created by having two separate goals. The ‘last’ bond’s cumbersome text was weighed down with extraneous matter such as how internal disputes should be resolved. As with many coalitions, the attempt to attract as wide a constituency as possible, and satisfy its differing needs, diluted the solidarity of a common identity with its binding obligations. The same tension and potential for conflict between two different purposes was present most dramatically in the 1638 National Covenant. The situation in the closing stages of the Wars of the Congregation also directly affected private bonds. The patriotic language of freeing the kingdom was attached to the religious purpose of establishing true religion in a bond of friendship signed in May 1560. The head of the Hamilton lineage, the duke of Châtelherault, and his heir, the earl of Arran, made the political bond with the earl of Morton as part of a wider deal to settle their dispute over claims to the earldom of Morton. They were faced with a dilemma when it came to the place in a noble bond to insert the normal ‘exception’ clause covering allegiance to the crown.29 Without mentioning the monarch or the Queen Regent’s authority they produced the interesting formula, ‘sa fer as we may be the lawis of this realme and with ane frie and saif conscience’.30 This 28 Wormald, Lords and Men, 411; Knox, Works, ii, 61‒4. The phrase ‘anefald plaine pairt’ was regularly used in bonds: DOST, s.v. ‘anefald’. 29 The exception clause, ‘his allegeance to our soverane lord the kingis maiestie allanerlie being excepted’, from the example bond of maintenance by William, lord Herries to Robert Macbrair of Almigill, 16 June 1589: Wormald, Lords and Men, 414. 30 Wormald, Lords and Men, 405; NRA(S) 2177, papers of the Douglas-Hamilton family, Dukes of Hamilton and Brandon, no. 479 (MS copy of the 31 May 1560 bond between

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adjustment within one small clause of the bond highlighted how a major step could be taken of dividing allegiance owed to the kingdom from that given to the monarch.31

V The achievement by the Lords of the Congregation of their twin goals of religious reformation and political independence in the summer of 1560 added the gloss of success to religious bonding. The public adoption of the Confession of Faith in the Scottish Parliament on 17 August can be regarded as the culmination of the religious bonds of the Wars of the Congregation. Emotional declarations accompanied the ‘promise’ or acceptance of the Confession containing clear echoes of the language of bonding. As the English ambassador recorded: Dyvers with protestation of their Consciens and Faythe, desyred rather presentlye to end their lyves than ever to thinke contrarie unto that that allowed ther. Maynie also offereit to shede their blude in defence of the same … concludinge all in one that that was the Faythe wherin thei ought to lyve and die.32

The Scots Confession reinforced the confessional element within religous bonding, but did not replace or supersede it. Bonds retained their ability to sustain a religious identity and kept their potential to elevate that allegiance above the loyalty owed to the crown. The general bond signed at Ayr in 1562 demonstrated the rebellious element that such bonds continued to possess. As in the First Band, it was the ‘preaching of the Evangell’, and the ministers who preached who were given protection by the ninety-one signatories drawn from the south-west of Scotland.33 In traditional phrases from a bond of friendship, it bound all into an alliance ensuring that ‘everie ane of us shall assist otheris’, and that their maintenance should extend to ‘the hoill body of the Protestantis within this Realme’, and not only those within their own region. The national reach of Morton, Châtelherault and Arran). Cf. HMC, Eleventh Report, Appendix, Part VI (London, 1887) (Duke of Hamilton), p. 38, no. 77⁄28. 31 The many aspects of ‘kingship’ and ‘commonweal’ are discussed in J. H. Burns, The True Law of Kingship: Concepts of Monarchy in Early-Modern Scotland (Oxford, 1996) and Roger A. Mason, Kingship and the Commonweal: Political Thought in Renaissance and Reformation Scotland (East Linton, 1998). 32 Thomas Randolph’s report to William Cecil, 19 August 1560, cited in Knox, Works, vi, 116‒17. 33 Seventy-eight names in Knox, Works, ii, 348‒50; 91 names on copy in Sir William Fraser, Memorials of the Montgomeries, Earls of Eglinton, 2 vols (Edinburgh, 1859), ii, 192‒3; Wormald, Lords and Men, 411, 156; Sanderson, Ayrshire, 44, 121, 124.

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the maintenance offered in the bond therefore incorporated an entire party identified solely by their religious allegiance. Protection was extended to all Scottish Protestants: ‘whosoever shall hurt, molest, or truble ony of our body, shalbe reaputed ennemye to the hoill’. This bond elaborated upon the theme of a solemn oath before God, with the powerful assertion of making the ‘promesse in the presence of God, and in the presence of his Sone our Lord Jesus Christ’. In a final flourish, the bond was justified in the contexts of salvation and Kirk membership, ‘as we desyre to be accepted and favored of the Lord Jesus, and reaccompted worthy of credyte and honestie in the presence of the godlie’. In this bond, honour and worthiness were to be judged by religious, rather than noble, faithfulness, with the emphasis firmly placed upon Christ as king and lord. These were the kinds of concepts that would characterise the covenants in the following century. Though created in the context of a traditional rivalry between different Ayrshire affinities, the assumptions within this bond potentially challenged the noble concept of honour within Scottish society.34 Instead of employing the usual clause about dispute settlement by a higher authority or legal process, the 1562 bond cited the Kirk’s new courts, ‘except that the offendar wilbe content to submit him self to the judgement of the Kirk, now establisshed amangis us’. While the language retained its familiar ring, the implications were new. It included the new institution of the Reformed Kirk and its congregations and drew into its compass the entire body of Protestants in Scotland. Even more significant was the underscoring of a different concept of kinship, the spiritual kindred of the ‘godlie’, those joined in a common covenant with God created and sustained by the sacraments of the Reformed Kirk and upheld by the Kirk’s discipline and judgement. Scottish Reformed ecclesiology brought the language of leagues and covenants to the fore, and Article 21 of the Scots Confession of Faith had emphasised the sacraments ‘mak ane visible difference betwixt his people and they that wes without his league’. In particular, sacramental theology and practice helped underline the similarities between being a member of the Kirk and religious bonding. The Book of Common Order explained that attending a baptism was designed to ensure every member of the congregation was ‘putt in minde of the league and covenant made betwixt God and us that he wilbe our God, and we his people’.35 Knox had summarised the significance of the Lord’s Supper in terms redolent of bonding, as ‘the declaration of our covenant, that be Chryst Jesus we be nurissit, mentenit, and continewit in the league with God our Father’.36 The 1562 bond had been composed shortly before the disputation held at 34 Cf. Keith M. Brown, ‘Honour, honours and nobility in Scotland between the Reformation and the National Covenant’, SHR 91 (2012), 42‒75. 35 Knox, Works, iv, 189. 36 Knox, Works, iii, 125.

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Maybole between John Knox and Quentin Kennedy, abbot of Crossraguel, and Knox had forewarned that ‘troubles’ might come. The abbot was backed by his powerful Kennedy kin led by the earl of Cassillis, and the Ayr bond was a public declaration of extensive support for Knox, not least from opponents of the Kennedys. Surprisingly, this particular confrontation was not subsumed into these long-standing regional rivalries, and the bond’s confessional language emphasised that it was a new-style declaration of Protestant allegiance. The disputation between Kennedy and Knox did not escalate into armed confrontation, though the contemporary situation in France demonstrated what might have happened. Following the massacre in 1562 of the Protestant congregation at Vassy by the duke of Guise, the Protestant nobles led by the prince of Condé had extended their protection to other congregations and co-religionists within France. Since the defence of Protestants was expanded to include the seizure of Rouen by Protestant forces, the situation rapidly degenerated into full-scale war. As this example demonstrated, one man’s defence of religion was another man’s rebellion. The bond of 1562 avoided government censure because there was no fighting in Ayrshire. In the following year its existence and terms probably played a part in the queen’s indignant reaction when Knox wrote to his Protestant friends in the West and elsewhere.37 His letter speaking of the dangers facing the Kirk was interpreted as a deliberate attempt to mobilise the support promised in that earlier bond. It was possible to construe that letter as an open summons to the queen’s lieges, and possibly treasonable, though after investigation Knox was absolved by the Privy Council in December 1563.38 By tracing phrases and concepts from noble bonds of maintenance and friendship that were taken into religious bonds, one direction of flow between the two spheres has been demonstrated. Religious language, ideas and ritual had flowed the opposite way from the beginning of bonding within medieval Scottish society. The church had always been the other arena in which kinship and its many obligations could be deliberately created. Its sacramental system, especially in baptism and marriage, produced new ‘affinities’ among the key participants, with ties that bound for life. They had a direct effect upon the language and ritual of the bonds, and in one instance had produced a new type, a bond of gossipry, based on the baptismal links of godparenthood.39 The complex interaction between civil and religious practice was more than a two-directional interchange. It resembled a series of rebounds, with words, 37 Knox, Works, ii, 395‒7. 38 Knox, Works, ii, 398‒411. 39 Jane E. A. Dawson, ‘“There is nothing like a good gossip”: baptism, kinship and alliance in early modern Scotland’, in Christian J. Kay and Margaret A. Mackay (eds), Perspectives on the Older Scottish Tongue: A Celebration of DOST (Edinburgh, 2005), 38‒47.

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phrases and ritual ricocheting back and forth producing an intermingling. Where there was a core of shared concepts, such as the importance of faithfulness, the undertaking of obligations, the creation of amity and a common purpose, this was relatively straightforward. However, sharing languages could create problems where the two sets of values were at odds. In the long run, the religious bond and the noble bond produced radically different answers to the questions, ‘who is my ally?’ and ‘where does my allegiance lie?’ As the 1562 bond indicated, the establishment of the Reformed Kirk as a national institution added another strand to the tangle of competing allegiances. It brought the language of bonding closer to a confession of faith and the rituals of repentance being used within the kirk’s disciplinary system. A common sight and sound for early modern Scots was of penitents performing and expressing their repentance in the parish church as a result of the routine discipline of the kirk sessions.40 Of greater significance for general bonding was the public repentance ritual of the General Fast, with its emphasis upon the covenant between God and his people and the obligations this entailed.41 Most of the instances when a general bond was circulated, including the National Covenant, were accompanied by a Fast; its language formed a backdrop to bonding. The General Fast drew upon the two different views of the ‘godly’, and the ‘Kirk’, using both the concept of a Protestant nation with a fully Reformed Kirk and the ‘remnant’ of the faithful who besought God on behalf of the sinful realm. These ideas and the tensions they created fed into the covenant mix of the seventeenth century.

VI In 1581 many of these strands were brought together when the King’s or Negative Confession was turned into a national religious bond. The ‘Secund Confession of Faith’, as Calderwood labelled it, self-consciously looked back to the 1560 Scots Confession.42 It celebrated the patriotic belief that: the true Christiane fayth and religion pleasing God…is receaved, beleved and defended by manie and sindrie notable kyrkis and realmes, but cheifly by the kyrk of Scotland … as more perticulerly is expressed in the confession of our 40 Margo Todd, The Culture of Protestantism in Early Modern Scotland (New Haven, CT, 2002), ch. 3; Jane E. A. Dawson, ‘Discipline and the making of Protestant Scotland’, in Duncan B. Forrester and Doug Gay (eds), Worship and Liturgy in Context: Studies and Case Studies in Theology and Practice (London, 2009), 123‒36. 41 The Order of the General Fast, Knox, Works, vi, 391‒422. There is a fuller discussion of the Fast in W. Ian P. Hazlett, ‘Playing God’s card: Knox and fasting, 1565‒66’, in Roger A. Mason (ed.), John Knox and the British Reformations (Aldershot, 1998), 176‒98. 42 Calderwood, History, iii, 502‒5; William C. Dickinson and Gordon Donaldson (eds), A Source Book of Scottish History, vol. iii: 1567‒1707 (2nd edn, Edinburgh, 1961), 32‒5.

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fayth stablished and publictly confirmed by sindrie actis of perlamentis, and now of a long tyme had bene openly professed by the kingis Majestie and whole body of this realme both in brught and land.

It was followed by a long and specific list of ‘all kynd of papistrie’ that ‘we detest’ – a list that earned the confession its ‘negative’ nickname with contemporary Roman Catholics.43 Eventually the signatories asserted that ‘we joyne our selves willingly in doctrine, fayth, religion, discipline, and use of the holie sacramentis, as lyvlie memberis of the same in Christ our head’. Then came the promise, ‘swearing by the great name of the Lord our God that we shall continue in the obedience of the doctrine and discipline of this kyrk and shal defend the same according to our vocation and power all the dayes of our lyves’. Although it had first been signed by the king, his household and court, it was extended by royal command on 2 March to the whole of the realm. In a significant combination of the techniques of general bonding with an obligatory Confession, it was to be enforced by both royal and ecclesiastical authority, accompanied by civil and religious sanctions. The document was to be signed or accepted ‘under the panes conteyned in the law, and danger both of body and saule in the day of Godis fearfull judgement’. The Confession faced a novel problem over its ‘enemies’. While the Pope and Roman Catholic rulers abroad were easily identifiable, those at home remained hidden. The fear was that these dangerous hypocrites conformed outwardly to the Reformed Kirk, but were waiting ‘when tyme may serve, to become open ennemeis and persecutoris’. Adopting the language of penitence, the signatories declared that we: protest and call the searcher of all heartis for witnes, that our myndis and heartis do fullely aggree with this our confession, promise, othe, and subscription … [and] are perswaded onely in our conscience throught the knawledge and love of Godis true religion prented in oure heartis by the holie sprit, as we shall answer to him in the day when the secretis of all heartis shalbe disclosed.

There was a reversion to the language of bonding and a strong echo of the king’s coronation oath in 1567, when the second promise was made in the Confession. The 1567 General Assembly had made a strong association between the coronation oath and a religious bond. It had summarised its understanding of the royal oath to be made by kings at: ther first entres, befor they be crownit and inaugurat, sall make ther faithfull league and promise to the true kirk of God, that they sall maintaine and defend, and be all lawfull meanes sett fordward, the true religioun of Jesus Chryst presentlie confessit and establishit within this realme … as they crave 43 DOST, s.v. ‘negative’.

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obedience of there subiects, so the band and contract to be mutuall and reciproque in all tymes comeing betuixt the prince and God, and also betuixt the prince and faithfull peiple according to the word of God.

As a way of associating the kingdom with the king’s coronation bond, a General Fast had been held and a general bond to root out idolatry and establish true religion was circulated by the Assembly.44 Within the King’s Confession of 1581, allegiance to God and true religion were carefully aligned in the second promise with the allegiance owed to the monarch. We shall defend his [the king’s] persone and authoritie with our geyr, bodyes, and lyves in the defence of Christis evangell, libertie of our countrey, ministration of justice and punishment of iniquitie, agaynst all enemies within this realme or without.

In its final passage, the document reverted to the language of salvation and divine judgement, paralleling the defence of the king with that given by God to each Christian: as we desyre our God to be a strong and mercyfull defender of us in the day of our death and cuming of our Lord Jesus Christ, to whome with the Father and the Holie Sprit be all honour and glorie eternally.

This confession was an official document circulated and enforced by the authority of the crown and the Kirk. The masterstroke of placing the promise to defend true religion and the Kirk alongside the promise to uphold the king’s person and authority appeared to have tamed the rebellious element within religious bonding.

VII Having remained dormant for most of the century following the Reformation, the full rebellious potential of religious bonding erupted spectacularly in 1638 when the National Covenant was signed in Greyfriars churchyard, Edinburgh.45 Ironically, it was the crucial double promise from the King’s Confession of allegiance to the king and to true religion that made the 44 BUK, i, 108‒10; Calderwood, History, ii, 324. For a full discussion of the 1567 coronation and its combination of traditional elements with revolutionary ones, see Michael Lynch, ‘Scotland’s first Protestant coronation: revolutionaries, sovereignty and the culture of nostalgia’, in L. A. J. R. Houwen (ed.), Literature and Religion in Late Medieval and Early Modern Scotland: Essays in Honour of Alasdair A. MacDonald (Leuven, 2012), 177‒207. 45 For the text of the National Covenant, as quoted below, see Dickinson and Donaldson (eds), Source Book, iii, 95‒104. It was also incorporated into an act of parliament in 1640: RPS, 1640/6/36.

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National Covenant possible. The entire Confession was incorporated word for word at the start of the Covenant, and it was emphasised that the Confession had been signed by ‘all ranks’ and ‘all sorts of persons’. In the style of general bonds, after the first signing in Edinburgh, the Covenant was circulated throughout the kingdom to gather as many signatures as possible. In a phrase that deliberately recalled the tradition of general religious bonding and the Confessions, the Covenant described itself as ‘a general band for the maintenance of the true religion and the king’s person’, and mentioned ‘the laudable example of our Worthy and Religious Progenitors’. Following a long recital of parliamentary acts carefully selected to justify the protests about religious innovations, specific reference was also made to the king’s coronation oath. This was both the general fact ‘that all Kings and Princes at their Coronation and reception of their Princely Authority shall make their faithfull promise by their solemne oath in the presence of the Eternal God … to maintain the true Religion of Christ Jesus’, and the specific reference to Charles I’s coronation oath made in 1633. For good measure, the earlier Scots Confession and the practice of catechising were reintroduced within the text to reinforce confessional and ecclesiastial continuity. Near the beginning of the Covenant there was a bold profession: [we] do hereby professe, and before God, his Angels, and the World solemnly declare, That, with our whole hearts we agree & resolve, all the dayes of our life, constantly to adhere unto, and to defend the foresaid true Religion.

However, the full promise was included much later: We promise, and sweare by the Great Name of the Lord our God, to continue in the Profession and Obedience of the Foresaid Religion: That we shall defend the same … according to our vocation, and to the uttermost of that power that God hath put in our hands, all the dayes of our life.

As in the King’s Confession, a second promise was added: ‘we promise and sweare, that we shall, to the uttermost of our power, with our meanes and lives, stand to the defence of our dread Soveraigne.’ The language concerning the defence of the king’s person had the impeccable pedigree of the King’s Confession, but also could be understood to convey, in a suitably non-specific phrase, the traditional medieval demand to separate the king from his evil counsellors. This was what the Covenanters wanted to happen in order to effect the change of royal policy that they desired. The language of bonding came to the fore when reference was made to the creation of the alliance of the signatories, especially in the ‘all for one and one for all’ clause: whatsoever shall be done to the least of us for that cause, shal be taken as done to us all in general, and to every one of us in particular. And that we shall neither directly nor indirectly suffer ourselves to be divided … from this blessed & loyall Conjunction.

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At the end was appended the devotional language of personal promise or covenant concerning a moral ‘life & conversation, as beseemeth Christians, who have renewed their Covenant with God’, when those signing promised ‘to be good examples to others of all Godlinesse, Sobernesse and Righteousnesse’.

VIII The National Covenant contained a wide range of ideas culled from many different sources; these disparate parts did not fit together into a single, coherent whole. Whilst it did contain many of the phrases and concepts developed in the religious bonds of the Reformation period concerning the protection and defence of preaching, of the ministers and of the congregation, it was not really cast in their mould. The King’s Confession of 1581 had acted as a filter as well as a transmitter for that tradition of bonding. From the 1590s, with the introduction of federal theology into Scotland, there had been a major expansion of discussion about covenants that had dropped many new ideas and expressions into the pot in which the Covenant was brewed.46 The excessively prolix National Covenant borrowed forms and devices from many different sources, with the language of bonds making only a minor contribution. By 1638 the practice of bonding was dying out; rather than forming part of everyday life, its language and forms were fading to a memory. The short and coherent format of the bonds of maintenance had been carried into religious bonding during the Reformation period. Once bonds ceased to be familiar, they no longer served as models for the expression of allegiance. Running to c.4,300 words, the National Covenant was not an easy text to grasp at first or even subsequent hearings or readings. Thanks to the preexisting tradition of religious bonding, its adoption could be transformed into a symbolic and emotive ritual.47 In his diary, Archibald Johnston of Wariston, one of the Covenant’s authors, recorded the reception of the Covenant at Currie parish church on 18 March 1638. During this national fast day the minister read the Covenant aloud, as he had the previous Sunday, and then explained parts of the text by reference to the Old Testament covenants. All was quiet and orderly until the time came for making the promise. The emotion overflowed at the point when the congregation stood and raised their arms to swear in the presence of God: Bot immediatly thairafter at his lifting up of his hand and his desyring the congregation to stand up and lift up thair hand and suare unto the aeternal God, and at thair standing up and lifting up thair hands, in the tuinkling of 46 David G. Mullan, Scottish Puritanism, 1590‒1638 (Oxford, 2000), ch. 6. 47 Margaret Steele, ‘The “politick Christian”: the theological background to the National Covenant’, in Morrill (ed.), Scottish National Covenant, 31‒67, at p. 37.

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ane eye thair fell sutch ane extraordinarie influence of God’s Sprit upon the whol congregation, melting thair frozen hearts, waltering thair dry cheeks, chainging thair verry countenances, as it was a wonder to seie so visible, sensible, momentaneal a chainge upon al, man and woman, lasse and ladde, pastor and people.48

This description furnishes a salutary reminder to historians that the document is not everything, though it remains important. The performance and the action often conveyed more to early modern Scots than the words and the legal document they accompanied. As Jenny has demonstrated in her discussions of the world of lordship, the visual language of ritual and gesture was as powerful as the written language of the bonds.49 This is yet another of those trails inviting exploration that Jenny has blazed for us.

48 Diary of Archibald Johnston of Wariston, 1632‒1639, ed. George M. Paul (SHS, 1911), 327‒8. 49 Jenny Wormald, ‘Bloodfeud, kindred and government in early modern Scotland’, Past and Present 87 (May 1980), 54‒97; Wormald, Lords and Men.

chapter 8

‘We Bund and Obleiss Us Never More to Querrell’: Bonds, Private Obligations and Public Justice in the Reign of James VI1 ANNA GROUNDWATER In 1599, at the tower of Branxholme near Hawick, two members of the notoriously rumbustious Elliot kindred subscribed a bond agreeing to uphold an arbitration made by Sir Walter Scott of Buccleuch in a dispute between them. Robert Elliot of Redheugh for himself and on behalf of his kin, friends and dependants, and Martin Elliot, son of the late Sym Elliot, for himself, his uncles and the rest of his surname and servants, promised that, Forsamekle as we the saidis robert and martene haveing submittit all actionis and debaitis betuixt us In the hands of the right honorable the said Sir Walter … [who] efter gude avyse and deliberatioun hes finalie agreit us thairanent and ordanit that the memorie thairof be bureit in tym cuming

they ‘bund and obleiss us never more to querrell’.2 Elliot of Redheugh was a tenant of Buccleuch’s in his lordship of Liddesdale, an unruly region abutting the Anglo-Scottish frontier. In the same year, several other tenants also subscribed bonds to Buccleuch swearing to be answerable to him for ‘any complaint from england or upoun the kingis maiestie his hienes counsall or his justices preissing or chalenge upoun any complaint from the subiectis of Scotland’, because Buccleuch ‘be vertew of the generale band hes fund cautioun and bund and oblist him’ for the actions of ‘the haill inhabitantis of the boundis of liddisdaill’.3 The increasing likelihood of James VI’s succession to the English crown had increased the pressure the king was putting on his officials to crack down on internal and cross-border crime in the Borders.4 11 This chapter grew from a paper given to the Scottish Legal History Group in 2011, and I owe Professor Mark Godfrey huge thanks for inviting me to present it. His book has been invaluable in helping me formulate my ideas: A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009). 12 NRS, Buccleuch Muniments, GD224/906/68/4. 13 NRS, GD224/906/5/1‒7. 14 Susan Doran, ‘Loving and affectionate cousins? The relationship between Elizabeth I and James VI of Scotland, 1586‒1603’, in Susan Doran and Glenn Richardson (eds),

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The making of bonds was one of the principal means by which he achieved this.

I This was not just the case in the Borders. The king was keen to suppress crime, particularly violent crime, throughout his kingdom, and bonding was to play a central part in his efforts. Whilst James’ reign was notable for the welter of legislation attempting to regulate every aspect of life, most notable of all perhaps were his concerted attempts to suppress the ancient activity of the bloodfeud. Legislation in 1598 and 1600 outlawed the pursuit of violent private justice, calling participants to bring their disputes to public arbitration, increasingly in the central courts in Edinburgh.5 The main mechanism used to stay the spiral of violence, whilst the lengthy processes of litigation, or arbitration and compensation proceeded, was the use of bonding, through private and public assurances, in acts of caution, and finding of monetary surety. Once arbitration had been made, participants were usually compelled to subscribe a bond promising to uphold the decision and its requirements. Laws can be registered, but in a period with relatively few public prosecutions, and an over-stretched King’s Guard, bonding was central to the way in which laws were enforced.6 From the 1580s, the number of publicly registered acts of caution increased exponentially, peaking in the period 1600 to 1610. At the same time, however, bonds made privately, as between Buccleuch and his tenants, played an equally important role in securing compliance with crown policies. There were various types of bonding, and complex motivations, including the obligations of kinship, allegiance, and lordship, which encouraged co-operation with the law. At a time of the crown’s unprecedented intolerance of violent crime, and during the intensification of government that Scotland experienced under James, it is suggested that whilst there was an increasing emphasis on the use of formal public procedures to resolve disputes, early modern government was to continue to use traditional methods, such as bonding, to stay violence during any arbitration, and to implement the newly registered laws. Though bonds of manrent and maintenance disappeared by Tudor England and its Neighbours (Houndmills, 2005), 203‒33; Anna Groundwater, The Scottish Middle March, 1573‒1625: Power, Kinship, Allegiance (Woodbridge, 2010), esp. ch. 7. 15 RPS, 1598/6/2, 1600/11/44. 16 Godfrey, Civil Justice; Jenny Wormald, ‘Bloodfeud, kindred and government in early modern Scotland’, Past and Present 87 (May 1980), 54‒97; Michael Wasser, ‘Violence and the Central Criminal Courts in Scotland, 1603‒1638’, unpublished PhD thesis (Columbia University, 1995).

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the early 1600s, formal public justice continued to utilise the informal mechanisms of ‘private justice’, and structures of authority were still formed by traditional lordship and a kin-based society.7 The very bonding of society itself facilitated the objectives of a newly intrusive crown. This blurred any division between the concept and practice of public and private justice; and such fluidity should continue to shape our understanding of the implementation of the law throughout James’ reign. As Jenny Wormald and Keith Brown have shown, bonds came in different guises, and bonding was used by both public and private forms of justice to instil good order within Scottish society.8 Wormald’s identification of the bonds of manrent, whereby a lesser man would subscribe an agreement to abide by the wishes of his social superior, in return usually for some promise of maintenance, showed how they gave the traditional obligations of lordship or kinship a degree of written formality. But further than this, her encapsulation of the informal, but codified rules governing the arbitration and compensation of feuds showed how these could be imposed privately through the subscription of private assurances and letters of slains.9 Both she and, more recently, Mark Godfrey have shown how the settlement of disputes formed part of a remarkably flexible legal system that allowed for the interplay of what have been described as formal and informal, public and private judicial processes. In particular, Godfrey’s emphasis on the role of the Court of Session in arbitration as well as litigation, concludes that dispute resolution using arbitration ‘cannot be exclusively categorised as either based on state “public justice”, or informal “private justice”’. It often ‘encompassed both types of approach’.10 As Wormald surmised, there was no incompatibility between using the private processes of the settlement of the bloodfeud, and the evolving public judicial system, with its new ranks of eager lawyers.11 17 Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985). 18 Keith M. Brown, Bloodfeud in Scotland, 1573‒1625: Violence, Justice and Politics in an Early Modern Society (Edinburgh, 1986); Jenny Wormald, Court, Kirk and Community: Scotland, 1470‒1625 (London, 1981); Wormald, Lords and Men; Wormald, ‘Bloodfeud’. 19 Wormald, ‘Bloodfeud’, 62, 70. A letter of slains was issued by the victim’s family, usually as a result of an agreed compensation or settlement, stating that they no longer held the murderer or his family further accountable for his actions: DOST, s.v. ‘letter of slanis’. 10 Godfrey, Civil Justice, esp. ch. 8, quotation at pp. 355‒6. Cf. John Finlay, Men of Law in Pre-Reformation Scotland (East Linton, 2000); Kenneth G. C. Reid and Reinhard Zimmermann (eds), A History of Private Law in Scotland, vol. ii: Obligations (Oxford, 2000); Robert L. C. Hunter, The Law of Arbitration in Scotland (2nd edn, Edinburgh, 2002), esp. ch. 2, ‘The history of dispute settlement law in Scotland’; W. D. H. Sellar, ‘Assistance in conflict resolution in Scotland’, Recueils de la Société Jean Bodin pour l’histoire comparative des institutions 64 (1997), 267‒75. See also A. Mark Godfrey, ‘Rethinking the Justice of the Feud in Sixteenth-Century Scotland’, Chapter 6 above in this volume. 11 Wormald, ‘Bloodfeud’, 56‒7, 72‒3, 77‒8, 80‒1, 82‒3, 87‒90.

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Wormald’s and Godfrey’s blurring of the distinction between public and private forms of justice is invaluable in understanding how the crown was able to utilise devices more usually seen in the private settlement of dispute, such as arbitration and bonding, in the resolution of disputes through the public courts. Mechanisms of private justice were helping to shape the way in which public justice was conducted. Indeed Wormald has shown how, from the earliest surviving records, the crown had been largely acquiescent in the private method of justice provided by the arbitration and compensation of feuds; and that this remained the case for most of the sixteenth century, until the 1590s.12 Additionally, the pressure of the crown’s own agenda meant that it was dependent on whatever judicial processes were available to achieve compliance; the way in which this was being done in Liddesdale forms the focus of this chapter. In Liddesdale the crown was utilising not just the law, or legal processes, but the making of personal bonds between its officer there, Buccleuch, and the valley’s inhabitants. More than this, it will be shown how the crown was dependent on the very bonding of society, the socio-political structures of authority and networks of obligation that could get people to co-operate.13 In trying to evaluate how government was able to use bonds to enforce the law, the way in which they worked at a local level will be considered, exploring the personal relationships, and associated obligations that underpinned them. And taking it back to a national level, it will be shown how bonding at this personal level characterised the development of judicial processes, and the part it played in the intensification of government in early modern Scotland.

II The Elliots being targeted in the bond that began this chapter lived at Redheugh, at the foot of Liddesdale, close to the Anglo-Scottish border, and near to the Hermitage castle around which various Elliots and the equally notorious Armstrongs lived. The Elliot surname was repeatedly identified by the Scottish government, English officials, and in common parlance as one of the most disordered Borders kindreds, and it was often the unhappy recipient of the crown’s special attention. The English complained that the Elliots were the ‘theves of Scotlande’, ‘that comonlie truble’ the English 12 Wormald, ‘Bloodfeud’, 63‒6, 78‒85, 96. 13 Anna Groundwater, ‘Obligations of kinship and alliance within governance in the Scottish Borders, 1528‒1625’, Canadian Journal of History 48 (2013), 1‒27. For consideration of these themes in an English context see Michael J. Braddick and John Walter (eds), Negotiating Power in Early Modern Society: Order, Hierarchy and Subordination in Britain and Ireland (Cambridge, 2001); Paul Griffiths, Adam Fox and Steve Hindle (eds), The Experience of Authority in Early Modern England (London, 1996).

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Middle March, reminding officials that it was lawful to ‘execute them forthewith’ if they were caught with ‘red or blodie handes’.14 Robin Elliot of Redheugh was repeatedly accused of cross-border theft, a typical raid in 1589 by him and five other Elliots taking sixty cattle, two horses and moveable goods of £100, setting alight five houses.15 Liddesdale itself was infamous for its thieving inhabitants. Government most particularly referred to the ‘notorious thieves as were born in Liddesdale, Eskdale, Ewesdale, Annandale and the lands sometimes called debatable’.16 Their exploits denigrated and demonised in contemporary literature, the men of Liddesdale were: … ye commoun thevis Sa peirtlie stelis, now and revis That nae can keip, hors nolt nor scheip Nor yit dar sleip, for thair mischevis … Thai have neir hand hirreit haill Ettrik forrest and Lawderdaill Now ar thai gane, in lowthiane And sparis nane, that thai will waill.17

What stimulated the making of Elliot of Redheugh’s bond to Buccleuch in 1599 was a combination of James’ recent resolution to put an end to crossborder crime, in anticipation of his English inheritance, and his newly persistent determination to suppress violence throughout Scotland. Kindred leaders and landlords from all regions were increasingly made to undertake responsibility for the actions of their kinsmen, or tenants, under a general band imposed by the crown at various times.18 The general band registered in 1590 included the oath that the ‘erlis, lordis, barronis, landit men … subscrivit with oure handis, to be bundin and obleist … in all tyme coming, [to] keip and caus to be kepit gude rule within our landis, [and] lordschippis’.19 More particularly, and especially at times of diplomatic sensitivity, this band was applied to named lairds in the Borders to quell internal and cross-border crime in the Border-specific bands of 1569, 1576, 1599 and 1602.20 This was prosecuted most dramatically in the ferocious act ‘For the quieting and keeping in obedience of the disordered subjects, inhabitants of the borders, highlands and isles’ in 1587. All landlords and bailies named in the act were ‘charged to find sufficient caution and surety’, that ‘if any of 14 15 16 17

CBP, i, 103. CBP, i, 351. RPS, 1587/7/70. Sir Richard Maitland, ‘Aganis the theivis of Liddesdaill’, The Maitland Folio Manuscript, ed. W. A. Craigie (STS, 1919), 301‒3. 18 Julian Goodare, State and Society in Early Modern Scotland (Oxford, 1999), 258‒60. 19 RPC, iv, 787‒9. 20 RPC, ii, 117, 370‒3, 548‒9, 549‒52; vi, 45‒6, 435‒6, 825‒9.

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their men, tenants, servants and indwellers upon their lands … commit any masterful reiving, theft or reset of theft, depredations open and avowed, fireraising upon deadly feuds protected and maintained by their masters’, they had to present them for trial, upon monetary pains for failure to do so ‘according to the laws and general bond’.21 The named landlords included Francis Stewart, earl of Bothwell and lord of Liddesdale, Archibald Douglas, earl of Angus, who was lieutenant in the Borders, and the laird of Buccleuch. These nobles and lairds were having to bind themselves to the crown for their followers’ behaviour, under the general bond, and its border-specific applications. In 1602, the general band was signed at Jedburgh by over 120 borderers, including Buccleuch’s associates the Scotts of Harden, Haining, Tushielaw and Goldielands, and the Elliots of Redheugh and the Stobs. They swore responsibility for ‘ourselffis and all sic personis quhatsumevir as duellis upoun oure landis’, promising that if in the fulfilment of the band ‘we or ony of us be querrellit be ony clan, brensche, or surname to quhome the thevis pertenis, we bind and oblissis us … to concur and assist with uther aganis [those] … that querrellis, as gif it wer oure proper cause’.22 The government’s understanding of the efficacy of these measures was based in its belief that these ‘captains of the clans’ (as it referred in 1587 to kindred leaders in both Highlands and Borders) were those ‘on whom their tenants depend and obey’. Buccleuch was held responsible principally for his Scott kinsmen in Selkirkshire; but from 1594, following the forfeiture of the flighty Bothwell, Buccleuch was granted the lordship of Liddesdale, and landed with the office of keeper of Liddesdale. He had thus acquired the onerous responsibility for accounting for his miscreant tenants, dominated by the surnames of Elliot and Armstrong, in both his private and public capacities. His lordship came with the usual regality powers to hold a court there. But Buccleuch’s authority over his tenants was enhanced by the judicial powers associated with the keepership, which gave him exclusive rights (excepting the king) to try the inhabitants of Liddesdale, and excluded the Middle March warden from any jurisdiction over them.23 So Buccleuch held here a mixture of official and private jurisdiction, of his keepership and of his regality rights. His power, however, though formalised by crown grants of land and office, was underpinned by the nature of his personal authority, and this in itself depended on the social structure within the lordship, and the interpersonal obligations that bound it. The crown was aware of the 21 RPS, 1587/7/70. The new bracketing of disorder in the Highlands and Borders in this act is noted by Julian Goodare and Michael Lynch, ‘The Scottish state and its borderlands, 1567‒1625’, in Julian Goodare and Michael Lynch (eds), The Reign of James VI (East Linton, 2000), 186‒207, at p. 204. 22 RPC, vi, 827‒8. 23 Sir William Fraser, The Scotts of Buccleuch, 2 vols (Edinburgh, 1878), ii, no. 211; RPC, v, 178.

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necessity of this personal authority for its officials’ effectiveness, and was concerned in 1597 that those sheriffs who did not have sufficient ‘power and authoritie’ would not be able ‘with strang hand’ to carry out their duties.24 The wording of the Elliots’ agreement suggests a number of social processes at work, from the traditional obligations of kinship and lordship, to the recognition the Elliots gave to Buccleuch’s authority. First, Robert and Martin Elliot, by agreeing to the bond on behalf of others of their name, showed themselves to be operating within the context of a kinship-based society, acknowledging that what one member of the surname did or promised could affect other members of that surname. This suggests the way in which kinship shaped the divisions within the dispute.25 Second, by taking responsibility for the fulfilment of the bond by others of their name, these Elliots were demonstrating a structure within that kindred over which they exercised some authority. Implicit in this was the kindred’s recognition of their obligation to obey the leader of their branch – an informal obligation at least, if not a guarantee that they would! Robert (Robin) Elliot had been described in 1583 by the English official Thomas Musgrave as ‘cheife of the Ellotes’ of Liddesdale. ‘All theise Ellotes and manie more of them are at Robin Ellotes comaundment and dwell betwixt the Armytage in Lyddisdall and Whethough towre’; he listed thirty-four of them individually.26 Redheugh himself had a superior within the Elliot surname, the more powerful Gavin Elliot of the Stobs. Stobs in 1587 had become liable to enter Redheugh before the Privy Council to ‘underly sic ordour as salbe inputt to him for ye weill and quietnes’ of the Borders, under the pain of £2,000 surety.27 But why had both sides of the Elliots chosen to submit their dispute to Buccleuch, a member of a different surname, and then to swear a bond before him? Buccleuch’s official accountability for Liddesdale will have (perhaps) motivated him to settle the dispute, and to encourage the Elliots to come to him for arbitration. But the fact that the Elliots were prepared to accept his judgement implicitly recognised that Buccleuch was the most apposite person to arbitrate. His status conferred an authority on any decision that would make it more acceptable to both sides than any personal resolution between the combatants. This in turn would make the resolution difficult to challenge, and thus the bond more effective.28 Their promise never more to quarrel suggested that they recognised that Buccleuch had the authority, and the means in the longer term, to enforce his judgment and the terms of the bond. By bringing the dispute to Buccleuch, the Elliots were recognising his ability 24 RPS, 1597/11/55. Date accessed: 7 May 2013. Cf. Julian Goodare, The Government of Scotland, 1560‒1625 (Oxford, 2004), 170. 25 Wormald, ‘Bloodfeud’, 71. 26 CBP, i, 121. 27 NRS, PC10/3/iv/16. 28 Godfrey, Civil Justice, 379, 388‒9, 406; Wormald, ‘Bloodfeud’, 73, 75.

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to make, and then enforce, his arbitration; but more than this, the bond acknowledged the relationship between the Elliots and their landlord, legitimised and formalised by Buccleuch’s private and public jurisdictions, but underpinned by interpersonal obligations rooted in the traditions of ‘good lordship’.

III The origins of Buccleuch’s authority lay in a combination of traditional lordship and private and public judicial powers. He wore a variety of hats. At the most basic level, Buccleuch held the regality in which the Elliots lived in Liddesdale, and could exercise the economic power of a feudal superior or a landlord over his tenants. But more than this, he was able to draw on the obligations associated with lordship, the service given by his tenants to their lord, in return for his maintenance and protection.29 These were not written undertakings, but they were understood. When government asked him to guarantee his tenants’ good behaviour it did so because it assumed that he had that power over them, through the obligated nature of the relationship between him and his tenants. That the Elliots had come to Buccleuch for his arbitration implicitly recognised these obligations. There was a popular understanding of these obligations too. When Buccleuch rode to the rescue of Kinmont Willie (William Armstrong of Kinmont) at Carlisle in 1596, he was fulfilling the role of Kinmont’s lord, protecting his dependant, though of a different surname. In his train rode a mixture of names mostly from amongst his Liddesdale tenants, and Scott kinsmen, including the Armstrongs of Whithaugh and Mangerton, and the Scotts of Harden and Goldielands.30 As the ballad of ‘Kinmont Willie’ goes, He has call’d him forty Marchmen bauld, Were kinsmen to the bauld Buccleuch; With spur on heel, and splent on spauld, And gleuves of green, and feathers blue. There were five and five before them a’, Wi’ hunting horns and bugles bright; And five and five came wi’ Buccleuch, Like warden’s men, array’d for fight.31 29 For this see Wormald, Court, Kirk and Community, 29‒30; Michael Brown, The Black Douglases: War and Lordship in Late Medieval Scotland, 1300‒1455 (East Linton, 1998), 160‒1, 178‒80; Steve Boardman and Alasdair Ross, ‘Introduction’, in Steve Boardman and Alasdair Ross (eds), The Exercise of Power in Scotland, 1250‒1500 (Dublin, 2003), 1‒22. 30 CBP, ii, 252. 31 Sir Walter Scott, Minstrelsy of the Scottish Border, 4 vols, ed. T. F. Henderson (Edinburgh, 1902), ii, 58‒67; quotation at p. 61.

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Buccleuch’s strength was also based on his leadership of the large Scott surname, a position that brought him the co-operation of hundreds of men in the Borders, giving him the necessary ‘strang hand’ to enforce any decision. It was said by the English West March warden Lord Scrope in 1596 that he could summon as many as 3,000 men to his side, though such reports were not representative of the usual size of his retinue. His raid on Carlisle Castle was accomplished with only around eighty riders.32 Buccleuch’s potential forces compared in size with the 2,000 that Lord Maxwell, as warden in the West March, had at his side in 1593, when he fell in the battle against the 500 men (including some Scotts) that his foe Sir James Johnstone had mustered at Dryfe Sands.33 These forces also gave him the authority to act as ‘oversman’ in any dispute within his kindred and its allies and to enforce any bond resulting.34 Buccleuch’s informal power was enhanced and legitimised, as we have seen, by his officially recognised jurisdictions and office. Indeed, the granting of both the regality and keepership of Liddesdale reflected official recognition of Buccleuch’s existing power in the region. That power gave him the ability to fulfil these official roles, and the crown consciously drew on that power to assist it in implementing its policies. In 1622, Buccleuch’s son, also Walter, first earl of Buccleuch, was made one of a new triumvirate of commissioners for the Middle Shires, being one of those ‘speciall persones of pouer and freindschip’, of ‘credit, and meanis to prosequute and follow his Majesteis service’ in the region, that the Privy Council thought would be effective.35 Buccleuch’s private jurisdiction over those who lived there gave him the right to hold courts there. In another bond by some different Elliots, they promised Buccleuch that they would ‘submittis oure selffis to the said laird of balcleuchis awin court thair to abyde tryale’ suggesting that this was something he did.36 His mother, the redoubtable Margaret Douglas, who had married Bothwell following the death of the previous Buccleuch, stood in for her son occasionally. The power deriving from this private jurisdiction was augmented by the public office of keeper, which gave him roughly the equivalent of the judicial powers of the warden of the Middle March, in which Liddesdale nominally lay. Thus the bond concluded, Buccleuch ‘doth protest that quhasoevir sall violat this decreit and ordinance ... sall debait the present keipar’.37 Buccleuch had the reputation and powers of a man of ‘credit’.38 This mixture of private and public authority, of the roles of landlord, 32 33 34 35 36 37 38

CBP, ii, no. 336; CSP Scot., xii, 245. RPC, v, note 113. NRS, Scott of Harden papers, GD157/162. RPC, xii, 675‒6. NRS, GD224/906/5/6. NRS, GD224/906/68/4. RPC, xii, 676.

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kindred leader, lord and keeper, meant that it was more likely that the bond subscribed by the Elliots would be upheld, and helps to explain why they had agreed to Buccleuch’s arbitration. His authority, so effective here in getting the Elliots to sign this bond, was also potent when dealing with his own kindred, and indeed in resolving his own disputes. For instance, in 1585 at Hawick, a bond of maintenance and service was subscribed by Buccleuch and Robert Scott of Allanhaugh, on the resolution of their feud over the slaughter of David, son of Adam Scott of Allanhaugh. Allanhaugh promised on behalf of his kin and friends ‘never to fynd falt’ with Buccleuch over the slaughter of David Scott, ‘bot sall serve, manteine, and defend my said cheif according to the band subscrivit be me ... as ane gentilman aucht to do to thair chief’. In return, Buccleuch on behalf of his kin and friends promised to ‘fortifie, manteine, and defend’ Allanhaugh and his dependants.39 The Scott kindred felt obliged to obey any decision made by their ‘cheif ’ in the settlement of their disputes. In a similar arbitration by Buccleuch’s great-grandfather (also Walter) in 1528, John Scott of Borthwick and his brother recognised the decision of that Buccleuch as their ‘ovirman’ in the settlement of their dispute. The ‘arbiteris and amicable compositoris’ chosen by each brother were all of the Scott surname, and all promised to abide by Buccleuch’s terms.40 Buccleuch was thus able to use these personal obligations in his exercise of private justice as kindred leader, and in the case of the Allanhaughs, as their landlord too. Also operating here, and in the Elliots’ bond, was some form of consensus between the superior and the subordinate, the governor and the governed.41 The interdependence between the superior and the subordinate compelled an agreement, and encouraged the maintenance of that agreement. Buccleuch’s ‘strang hand’ would not have existed without the co-operation of his kindred, and their recognition of his authority; but equally they needed his favour in their landholding, and it would have been an uncomfortable ride to run foul of the kindred.

IV This is not the whole story, however. The Elliots’ promise never more to quarrel was not merely the result of the Elliots deciding to kiss and make up, but also because they were being forced to give up their feud by Buccleuch, 39 Fraser, Buccleuch, ii, no. 202. Emphasis added. 40 NRS, Scott of Harden papers, GD157/162. 41 John Walter, ‘Public transcripts, popular agency, and the politics of subsistence in early modern England’, in Braddick and Walter (eds), Negotiating Power in Early Modern Society, 123‒48, at pp. 123, 128, 135, 147; Michael J. Braddick and John Walter, ‘Introduction: grids of power: order, hierarchy and subordination in early modern society’, ibid., 1‒42, at pp. 7‒8, 16‒17, 42.

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as a result of crown pressure on him. For Buccleuch, in insisting on the bond, he was acting both as their landlord, and as keeper in Liddesdale. As landlord, thanks to the repeated general bands he and his forebears had had to subscribe, he was himself bound to the crown to take responsibility for the behaviour of his tenants; he was specifically required to do by the act anent the Highlands and the Borders of 1587. Additionally, the crown’s expectations of him as keeper resounded in those words of the bond, which grimly declared that any transgressors would ‘becum his perpetuall enimie and sall debait the present keipar’. By 1599, Buccleuch, himself no stranger to the odd bit of cross-border raiding, was threatening to hang any in his jurisdiction who misbehaved, displaying his determination by burning down the house of one of Redheugh’s neighbours, an Armstrong at Whithaugh, for the murder of an Englishman.42 Crown recognition of the success of Buccleuch’s endeavours came with his ennoblement in 1606, and an indemnity remitting his actions in the pacification of the Borders when fugitives ‘immediately on their apprehension, were necessarily hanged, and punished with death by pit and gallows off-hand on the very spot at which they were apprehended’.43 In addition, on 19 July 1599, Elliot of Redheugh himself was asked by the Privy Council ‘to find caution’ that he and those he was ‘obliged to answer for shall observe the King’s peace’.44 The same day Buccleuch appeared before the council to accept responsibility for a number of errant Scotts. In 1600 Redheugh along with other surname leaders was summoned to appear to consult concerning the Borders at Falkland, and in 1602, he was obliged to subscribe a general band for the Borders for himself and his men. In November 1602, he was declared answerable by the Privy Council for Will Elliot of Fiddletoun, whose liberty he had secured from Sir James Johnstone, the West March warden; later that month, when Sir James Sandilands pursued Redheugh for the value of two horses allegedly stolen from him by Fiddletoun, the council ordered Redheugh to pay Sandilands’ unlikely claim of £1,000.45 Subscribing a bond to Buccleuch was possibly a way for him to insert a barrier between him and the crown, though it emphasised the powers of a formidable overseer in Liddesdale. The Elliots’ bond, of course, implied the existence of an ongoing dispute, now lost in the bogs of Liddesdale. It may or may not have reached the levels of a violent feud, though the phrase ‘never more to querrell’ suggests that it had. The phrase ‘actionis and debaittis betwixt us’ probably referred to quarrels that had already taken place, but it also referred to a process of working out that dispute, perhaps the beginnings of an attempt to come to a resolution. It is not entirely clear from the bond itself whether or not 42 43 44 45

CBP, ii, nos 605, 610, 645. Fraser, Buccleuch, i, 235; RMS, vi, no. 2165. RPC, vi, 823. RPC, vi, 137, 476, 490, 825‒9.

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Buccleuch’s arbitration had actually happened; the wording can be read either way, but plausibly it is suggestive of a decision that was to come, the bond’s function being to prevent violence until it had done so. It certainly does not contain any mention of what the resolution was, or what form any compensation took, if that was part of the settlement. This was not a letter of slains, no agreement on reparation; this bond was instead made to inhibit the continuation of violence, to enforce any settlement that had been or was to be agreed. An assurance in 1607 at the settlement of a feud between the Jardines and the Geddes, for which Buccleuch, alongside Charles Geddes of Rauchan and Sir Alexander Jardine of Applegarth swore responsibility for the future amicable relations between the two kindreds, made it clear that a settlement had taken place. Applegarth ‘remittit dischargit renderit and frielie fra oure hairtis [had] forgevin’ the murder of three of his kinsmen, promising that his kin would take no further ‘actioun of displeasure’ against the Geddes kindred; further, that they had ‘ressavit and admittit [their former enemies] in siclyk amitie luif and freindschip’.46 No other terms of the settlement were included, nor mention of whether any material compensation had been made; the purpose was to stop future violence, even if amity, love and friendship might be harder to instil. The understanding of the effectiveness of Buccleuch’s powers of lordship underwrote these agreements. Similarly, it is evident that kinship, or at least the ‘ideal of kinship’ to use Wormald’s words, continued to frame both the disputes and their resolution.47 The continuities in the processes that helped to impose justice are clear; and they are evident too in the stipulation in the Jardine-Geddes agreement that any transgression would be made ‘Under the pane of loss of honor and credit perjurie and defamatioun for ever’.48 The maintenance of honour, of the importance of reputation in legitimising and making effective a leader’s authority, continued to be understood.49 The preservation of reputation was to remain crucial even as the private powers of a lord translated into the public powers of a crown-appointed office.50 What 46 47 48 49

NRS, GD224/906/3. Wormald, ‘Bloodfeud’, 71. NRS, GD224/906/3. Keith M. Brown, ‘Honour, honours and nobility in Scotland between the Reformation and the National Covenant’, SHR 91 (2012), 43‒75, at pp. 49‒52, 54, 72‒5; Godfrey, Civil Justice, 386; Mervyn E. James, ‘English politics and the concept of honour, 1485‒ 1642’, Past and Present, suppl. 3 (1978). 50 As Mike Braddick observes of early modern English office-holders, ‘their credibility depended on the reception of their performance’: Michael J. Braddick, ‘Introduction: the politics of gesture’, Past and Present, 203, suppl. 4 (2009), 9‒35, at pp. 18, 24‒6; Michael J. Braddick, ‘Administrative performance: the representation of authority in early modern England’, in Braddick and Walter (eds), Negotiating Power in Early Modern Society, 166‒87, at pp. 171‒2, 175, 186‒7; Michael J. Braddick, State Formation in Early Modern England, c.1550‒1700 (Cambridge, 2000), 71‒2, 189‒90;

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was new however was their further agreement, that ‘for the mair securetie’ of this private assurance, ‘we ar content and consentis that the presentis be actit and registrat in the buikis of counsall’.51

V The making of both the Elliot and the Jardine-Geddes bonds inherently recognised the wish, perhaps under compulsion, to seek a resolution, and the procedure by which to do so. This procedure lay outside the formal proceedings of a judicial court; though Buccleuch held formally recognised legal authority over his tenants, the Elliots’ bond was made to him personally and not to the crown. Simultaneously there was an understanding that he could prosecute them for any offence in his formal capacity as keeper. In choosing Buccleuch to arbitrate their dispute, the Elliots were recognising that his mixture of private and public authority made him the most appropriate person to bring their dispute to, and the person with enough authority to enforce its settlement. Separate bonds to Buccleuch by Elliots and Forsters of the same year also recognised that mixture, stating that they were made because Buccleuch had himself subscribed a personal bond to the crown for their good behaviour, and because he held the judicial powers of his ‘awin court thair’ to pursue any complaint against them. Buccleuch’s public office was equally acknowledged in the Elliot of Redheugh bond, in that anyone transgressing the agreement would be pursued by him or ‘sic as sall occupy his place’; this public office would enforce the settlement. But any Elliot who violated his decree would become Buccleuch’s own personal ‘perpetuall enimie’. This was particularly important by the late 1580s, when increasing attempts by James to intervene in feuds culminated in the act against feuds of 1598. This formed a crucial part of the intensification of government (to borrow Mike Braddick’s phrase) in Scotland throughout the sixteenth century, which saw the development of the central law courts in Edinburgh, a broadening stratum of those holding public office, and a crown that was increasingly prone to prosecute.52 Julian Goodare estimates that the numbers of those involved in public office expanded by 400 per cent in the period 1560 to 1625.53 Thus, from the later 1580s, the frequency with which bonding was used by government, at all levels, was unprecedented. Whereas a dependant had made a bond to his lord for his actions, either within a bond of manrent, or in the Paul Griffiths, Adam Fox and Steve Hindle, ‘Introduction’, in Griffiths, Fox and Hindle (eds), Experience of Authority, 1‒9. 51 NRS, GD224/906/3. 52 Braddick, State Formation, 337. Cf. Wasser, ‘Violence and the Central Criminal Courts’. 53 Goodare, The Government of Scotland, 216‒19.

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agreements for good behaviour exemplified by the Elliots’ bond, the bond was now being increasingly made to the crown. These new bonds took the form of acts of caution, sworn assurances by individuals to fulfil certain stipulations, such as not harming the other named party in a dispute; and to strengthen the effectiveness of these bonds, the principal was required to find cautioners, those providing surety, with monetary penalties imposed in the case of any transgression of the bond’s terms. The traditional obligations of lordship and kinship continued to underlie the structure of the bond in the cautioner’s signing of the assurance alongside the principal, thus widening the responsibility for the enforcement of the principal’s good behaviour. The subscription of acts of caution peaked between 1604 and 1610 when nearly 2,000 acts of caution were registered by the Privy Council, as individuals bound themselves, and their allies, to uphold agreements or ordinances, with monetary penalties attached for their failure. Given that each of these bonds involved several parties, either as protagonists, or sureties, this represented many thousands of people being formally obliged by the crown to uphold certain conditions of behaviour. The caution, for instance, that Gavin Elliot of the Stobs had found for producing Elliot of Redheugh before the council in 1587, involved William Home of Lesudden, Nicol Cairncorce of Colmeslie, and Walter Cairncorce of Lingill as his sureties, men outside his own surname but possibly related, who lived nearby. Under the threat of a £2,000 penalty, they became ‘actit and oblist conjunctlie and severalie as cautionaris’ to the crown for Stobs. Stobs in turn took on responsibility for the actions of Redheugh.54 Increasing numbers of people were being involved in official judicial processes. Where previously disputes had rumbled on usually under the radar of crown interest, with arbitration and the enforcement of settlements usually a local affair, the disputes and their perpetrators were now being registered centrally, publicly, formally, leaving a lasting record that government could draw on to inform itself, or to take any further punitive action. The subscription of centrally registered acts of caution allowed the crown to harness the traditional obligations of private bonding, to secure the co-operation and good behaviour of increasing numbers in a web of interrelated obligations that ultimately tied those involved more directly into formalised judicial processes.55 At the same time, the activities of increasingly well-established kirk sessions regulated an individual’s behaviour in areas outside the remits of the central judicial courts, at a localised level, tying him or her into further obligations, under the threat of punitive action.56 This widening pool of registered accountability was not overpopulated by errant Borderers. Under 20 per cent of bonds registered between 1603 and 1610 related to the Borders, with around half of these originating in the former 54 NRS, PC10/3/iv/16. 55 Godfrey, Civil Justice, 412‒13. 56 See, for example, Perth Kirk Session Book, 1577‒1590, ed. Margo Todd (SHS, 2012).

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West March, largely accounted for by the persistent Maxwell–Johnstone feud. Though this figure was higher proportionately than other Scottish regions, it was almost certainly affected by the greater proximity of the Borders to Edinburgh, and the relative ease with which the Privy Council could insist on the subscription of bonds there.57 Arguably, too, the greater proportion of cautions undertaken by Borderers from the 1590s also represented an intensified crown determination in the Borders occasioned by political and diplomatic circumstances, over and above a more general policy of increased intolerance of violence. The percentage of the total numbers of registered cautions that were signed by Borderers roughly equated to the enumeration Keith Brown has made for the regional distribution of bloodfeud. His conclusions on the geographically widespread nature of feuding are echoed by the signings of acts of caution.58 Scotland, not just the Borders, could be a violent place, and James’ efforts to suppress violent crime encompassed the whole kingdom. Increasingly these general bands and acts of caution were to tie more individuals throughout Scotland in a formalised, publicly registered and personal obligation to the crown. Whilst these assurances showed a variety of objectives, from preventing hunting in the Cheviots to a laird’s obligation to arm himself sufficiently, they related predominantly to feud. It is here that we see one of the principal motivations behind these bonds, and that was to stay the spiral of violence so often associated with a feud. Some of the bonds related to the enforcement of arbitrations already made, but many were made in order to stop ongoing violence during the time it took to bring disputes before a court for adjudication. In October 1601, an act of caution was registered by the Privy Council in which one unfortunate Alexander Guthrie of Kincaldrum stood surety for William Rhind of Kerse, and his son John, to the tune of 5000 merks; he promised that they would subscribe ‘such form of submission as shall be presented to them anent the feud’ between them and the Ogilvies of Craig. The Rhinds of Kerse were also involved in the feud between the Lindsays of Wodheid, and the appropriately named Querrelhill, and Sir Walter Lindsay of Balgay; this was itself part of a bigger feud between James, master of Ogilvy, and his associates, and Alexander Lindsay, Lord Spynie, and his following, which had come to combat in early 1600. In April 1602, Lindsay of Wodheid stood surety for Kerse and his sons John and Gilbert not to harm Balgay, whilst Wodheid himself had to find surety with Querrelhill in the same matter. Again in June 1603, Rhind found caution for his appearance before the Privy Council to subscribe his submission to the council’s arbitration of the ‘deadly feud’ with the Ogilvies.59 The crown was attempting to constrain any further violence between large groups of people by involving them all in a web of mutual 57 Groundwater, Scottish Middle March, 138‒9, 152‒3. 58 Brown, Bloodfeud, 6‒7, 277. 59 RPC, vi, 639‒40, 704, 722‒3, 791‒2; Brown, Bloodfeud, 21.

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assurances, taking responsibility for each other’s behaviour until arbitration could be made, and a settlement arrived at. One of the attractions of such bonding to government and, potentially, to participants, was the speed with which it could be accomplished. Mark Godfrey suggests that since arbitration speeded up the process of resolution, it was often preferred to protracted litigation by those pursuing cases before the lords of session. Bonding too could provide a quick fix to interrupt further violence. Whilst Godfrey places his emphasis on the ‘very short timescale’ associated with arbitration as the stimulant for its use, the very human fear of current, retributive violence may have been an equally pressing determinant. Wormald saw the speedier private methods of justice as crucial in defusing ongoing tension.60 That concern would have been behind some of those using arbitration rather than litigation. It was certainly where the crown was choosing to intervene, particularly in terms of what it wanted from those ‘banging it out’ in deadly feuds, or threatening the stability of the AngloScottish border. The efficacy, however, of such bonds in helping to resolve a dispute was not inevitable. Some acts of caution seemed almost to presuppose no settlement actually taking place, merely being repeated on a yearly basis when the term of the previous assurance ran out. Thus in December 1602, the Privy Council, concerned that the existing assurances having almost expired between the Ogilvies and the Lindsays (which included the Rhinds of Kerse), ‘but the quarrel between them still standing’, ordered all to ‘resubscribe and deliver … such forms of mutual assurance as shall be presented to them by the Clerk of Council, to endure till 1st January 1604’.61 Other bonds appeared inappropriate to deal with the situation as it was on the ground: the daily reality of living in proximity to one with whom you were at feud. In 1599, for instance, Patrick Hamilton of Samelstoun complained against an assurance that he had been ordered to make against harming George Douglas of Longniddry, who he claimed was ‘in the daily habit of carrying hagbuts and pistolets’. What was more, the sums being mentioned as security were way beyond the means of the man that was also bound with Hamilton.62 Similarly in 1595, James Hoppringle of Whitbank had protested against an accusation by John Home of Cowdenknowes ‘that I have molestit trublit and oppressit him in the possessioun of his landis’; Cowdenknowes had purchased letters ‘quhairwith he hes causit charge me to find cautioun and sourtie actit in the buikis of secreit counsall ffor ye indemnitie … under the pane of tua thowsand pundis … Albeit it be of veritie that I nevir molestit trublit nor oppressit ye said John’, and especially since Cowdenknowes knew 60 Godfrey, Civil Justice, 385, 387; quotation at p. 378. Wormald, ‘Bloodfeud’, 73. 61 RPC, vi, 492. 62 RPC, vi, 852.

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that Whitbank could not find surety for such an ‘extraordinarie’ sum of money.63 In January 1604 the Privy Council reiterated the king’s ‘maist ernest and ardent zaill and desyer to have removit’ the barbarous ‘wicked custome’ of the ‘deidlie feidis’, and questioned whether the measures presently adopted for suppressing them were sufficient. The problem with assurances, the king had complained, was that when they expired the parties involved appeared to think that they were then at liberty to resume their dispute. It was ordered therefore that all protagonists should be summoned before the Privy Council, who would command them ‘to keip thameselffis frome taking revenge at thair awin handis’; they were ‘to be bund to the peax and sourtie-taking that thay sall persew these upoun quhome thay compleine be law and no utherwayis’ ever.64 Such a stipulation ‘bound’ combatants to the law itself for their behaviour; they were obligated to underlie formal judicial proceedings, either before the council or the Court of Session. There was, it was ordered, to be no more private settlement of dispute; arbitration and settlement were to be exclusively the functions of the king’s formal apparatus of justice.

VI Despite this, the signing of acts of caution, the making of these personal assurances, continued. Because they were centrally registered, the breaking of them now brought not just the ire of the opposing party, but the punitive actions of the crown. The crown clearly thought that such bonds, and the obligations that they utilised, were of continued use. In this mixture of public and private forms of justice, of so-called formal and informal procedures, judicial and extra-judicial, it is worth asking whether there is any merit in continuing to try to look at Scotland’s legal processes within such a demarcated structure. It may be suggested, instead, that judicial processes were ongoing throughout Scottish society, that the socio-economic relationships within it were in themselves self-regulating (though not always effective), and that these obligations, this bonding, were part of the structure, the sinews, of society itself. Robert Elliot of Redheugh appeared to keep his nose clean for a while, being one of the surname leaders called to advise the council in 1606 on the Borders. But by the following year the council was calling for him to be warded in Cupar, Fife.65 And the relationship between the Buccleuchs and the Elliots of Redheugh did not end happily. What had once been close had soured by 1624. It is unclear what had gone wrong, though Redheugh had 63 NRS, PC10/3/v/15. 64 RPC, vi, 594‒6. 65 RPC, vii, 271.

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perhaps been aggrieved by the crackdown that the successive Buccleuchs had imposed in Liddesdale following the Union of the Crowns. Buccleuch’s son, also Walter, now blessed with an earldom and the office of triumvir commissioner of the Middle Shires, was the target of Redheugh’s murderous conspiracy. An irate James, infuriated by the challenge to his officer’s authority, called for ‘examplarie punishement’ to be meted out for these ‘vile attemptis’, plotted against Buccleuch given ‘the qualitie of the personne … being a nobleman, a counsellour, our commissionar in the boundis … and the said Robin his supeririour and landislord’. Buccleuch however, being ‘moved with pitie and commiseratioun of his [Redheugh’s] estait’ interceded for him, perhaps recalling the older obligations between them.66 In the 1620s, in the fulfilment of this public office, Buccleuch used the members of his kindred and his Liddesdale tenants as his officially nominated deputies, but also the privately derived power he had through his leadership of the wider kindred, in both cases utilising the ties of traditional obligations between them, of kinship and lordship.67 Older methods of justice by this noble Buccleuch were suggested too, in 1629, by an Englishman venturing into the hilly Borders dales, who noted of the river between Langholm and Selkirk that this was where ‘my lord Buckpleugh did wapp the outlaws into the dubb’.68 Private methods of justice were to continue into an increasingly formalised legal world.

66 RPC, xiii, 475‒6, 486‒7, 572‒3, 614, 651‒2. 67 RPC, xii, 695; xiii, 18‒19. 68 Christopher Lowther and others, ‘Our Journal into Scotland AD 1629, 5th of November, from Lowther’, in HMC, Lonsdale, xiii report, app. 7 (London, 1893), 76.

chapter 9

Murder Will Out: Kingship, Kinship and Killing in Medieval Scotland ALEXANDER GRANT This chapter reflects on Jenny Wormald’s ground-breaking article, ‘Bloodfeud, Kindred and Government in Early Modern Scotland’ (1980),1 which brilliantly analysed fifteenth- and sixteenth-century Scotland’s kin-based mechanisms for pacifying feuding, in relation to the public legal system. Essentially, the crown would grant a remission to the perpetrator of illegal violence, including killing, on condition that assythment (compensation) was given to the victim or his kin. It is not only one of the most important articles written on Scottish history, but also – through its wider significance – probably the most widely cited; and over thirty years later it reads as powerfully as ever. Since 1980, work on feuding has multiplied exponentially. Whereas Wormald had to cite only a few dozen studies, nowadays well over a thousand could be mentioned; and her comment, ‘greater awareness that feud is a complex business has not resolved all problems of interpretation’, now seems a masterly understatement. What, indeed, makes a ‘feud’? Long-term fighting across generations, or also short-term retaliation? Only kin-groups, or also other groupings? Only killing, or also non-mortal injury and/or property damage? Are ‘bloodfeud’ and ‘vendetta’ different from ‘feud’, or subsumed within it? Jeppe Büchert Netterstrøm’s introduction to a wide-ranging volume examines such issues, giving twenty-six pages on ‘definitions and concepts’ before considering how to construct ‘a comprehensive history of European feuding’.2 A ‘more flexible’ and ‘broader’ definition is preferable, 11 Past and Present 87 (May 1980), 54‒97. 12 Jeppe Büchert Netterstrøm, ‘Introduction: the study of feud in medieval and early modern history’, in Jeppe Büchert Netterstrøm and Bjørn Poulsen (eds), Feud in Medieval and Early Modern Europe (Aarhus, 2007), 9‒67. Also Susanna A. Throop, ‘Introduction: the study of vengeance in the Middle Ages’, Paul R. Hyams, ‘Was there really such a thing as feud in the high Middle Ages?’, and Hyams, ‘Neither unnatural nor wholly negative: the future of medieval vengeance’, all in Throop and Hyams (eds), Vengeance in the Middle Ages (Farnham, 2010), 1‒4, 151‒76, 203‒20; and Guy Halsall, ‘Violence and society in the early medieval West: an introductory survey’, in Guy Halsall (ed.), Violence and Society in the Medieval West (Woodbridge, 1998), 1‒45.

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he argues, so that ‘long-standing bloodfeuds between Icelandic peasants might then be placed on the same continuum as bloodfeuds between Scottish or Friulian aristocrats as well as the feuds between Franconian noblemen that were not primarily bloodfeuds’. Meanwhile: Edward Muir has tried to place Renaissance Friuli on a spectrum of European feuding societies. At the one end … ‘might be medieval England, where royal justice stamped out blood feuds earlier than in any other kingdom, and at the other modern Albania, where governments have hardly touched the endemic tribal feuds in the mountains … Friuli in the Renaissance came closer to the Albanian than the English end of the spectrum’. It is [Netterstrøm’s] opinion … that an effort to place the feuding societies of medieval and early modern Europe on this sort of spectrum may provide a constructive starting point for further comparison.3

That ‘England–Albania spectrum’ is Jenny Wormald’s concept:4 so ‘Bloodfeud, Kindred and Government’ now provides a blueprint for taking the subject forward. Presumably this would employ the flexible and broad Scottish concept of feud, as defined by the estates in 1598: ‘all feuds are one of these three natures, namely: that there is either no slaughter upon neither side, or slaughter upon one side only, or else slaughter upon both sides’.5 Thus Scottish ‘feud’ was not necessarily deadly; it included unfriendliness or enmity – as when the duke of Rothesay’s council of 1399 promised ‘loyal counsel … not having eye for feud nor friendship’.6 As for length, Keith Brown’s analysis of 365 feuds between 1573 and 1625 shows that 75 per cent were shorter than five years,7 and Steve Boardman’s study of late medieval feuding indicates much the same.8 Also, though compensation for death went to the victim’s kindred, feuding usually involved ‘friends and part-takers’ too.9 Wormald’s article, however, is essentially about the pacification of feud – 13 Netterstrøm, ‘Study of feud’, 66‒7; Edward Muir, Mad Blood Stirring: Vendetta and Factions in Friuli during the Renaissance (Baltimore, MD, 1993), 275. 14 Wormald, ‘Bloodfeud’, 56‒7 (acknowledged by Muir and Netterstrøm). 15 RPS, 1598/6/2 (‘nather’ in the original; rendered as ‘either’ in the RPS translation, which I have amended). 16 Ibid., 1399/1/3. Rothesay was lieutenant for his father Robert III. This is the earliest recorded use of the term in Scotland: DOST, s.v. ‘fede’. 17 Keith M. Brown, Bloodfeud in Scotland, 1573‒1625: Violence, Justice and Politics in an Early Modern Society (Edinburgh, 1986), 277‒9. Twenty-one per cent lasted 2‒5 years, 17 per cent 5‒20 years, and only 8 per cent more than 20 years. Almost half the 253 feuds for which details survive were not mortal (27 per cent no bloodshed, 22 per cent just bodily assault). 18 Stephen I. Boardman, ‘Politics and the Feud in Late Mediaeval Scotland’ (St Andrews University PhD thesis, 1990), available at http://hdl.handle.net/10023/504 (last accessed 30 November 2013). 19 Wormald, ‘Bloodfeud’, 68–71. For individual feuds, Brown, Bloodfeud, chapters 4, 6;

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for which she drew upon social anthropology, especially Max Gluckman’s 1955 essay ‘Peace in the Feud’.10 Gluckman argued that fear of feuding powerfully inhibited its unlimited escalation, because as a feud expanded many of the participants came to realise the wider threat, especially to their own interests. Consequently, feuds eventually generated a strong desire for pacification, pressurising the protagonists into ceasing hostilities and agreeing settlements: ‘peace in the feud’. Though not unchallenged,11 this makes broad sense. And recently the behaviourist Christopher Boehm has proposed a similar argument, highlighting two opposing human instincts: to retaliate – for both affection and honour – when a loved one is hurt or killed; but to compromise and pacify if the wider group’s interests are threatened.12 However, the consequent ambivalences and dilemmas became increasingly problematic as human groupings became bigger and more complex, making feud pacification far from straightforward: feuds could ‘involve a long series of lethal exchanges’.13 Boehm’s feud seems less peaceful than Gluckman’s. Another, less functionalist, aspect should be added: the ‘holy’. In a study of German justice, the legal/cultural historian Wolfgang Schild argues that pre-Christian Germanic peoples had ‘a demonic–magic conception of the world’, in which a kin’s (mythical) ancestor was a ‘demonically holy’ figure who bequeathed his holiness to his collective kindred. Consequently, when a kin member was killed, the ‘rage that led to vengeance’ had three reasons: that the kin’s ‘holy power’ was weakened, which only revenge could rectify; that tolerating the initial killing meant the kin was cowardly, which also stimulated revenge; and that if no vengeance were taken, the dead kinsman might return as a ghost to take it himself, and also to punish negligent relatives (as in Hamlet).14 Since the sense of ancestral ‘holiness’ is another long-established instinct, this adds a significant extra dimension to Boehm’s arguments. However, Boehm’s quasi-Weberian statements that collective pacification operated only when ‘strong authority at the political centre’ was absent, and

10 11 12 13 14

Boardman, ‘Politics and the Feud’, chapters 4, 6‒8; Jackson W. Armstrong, ‘The “fyre of ire kyndild” in the fifteenth-century Scottish Marches’, in Throop and Hyams (eds), Vengeance in the Middle Ages, 51‒84. Max Gluckman, ‘The peace in the feud’, Past and Present 8 (November 1955), 1‒14; also in his Custom and Conflict in Africa (Oxford, 1955). Brown refers to ‘Gluckman’s … sanitised bloodfeud’ (Bloodfeud, 2), while Netterstrøm suggests he ‘perhaps understat[ed] the violent elements in feuding’ (‘Study of feud’, 9); and see their references to post-Gluckman anthropologists. Christopher Boehm, ‘The natural history of blood revenge’, in Netterstrøm and Poulsen (eds), Feud in Medieval and Early Modern Europe, 189‒203. Ibid., 200. Wolfgang Schild, ‘Penal law as a phenomenon of the history of ideas’, in Christoph Hinckeldey (ed.), Criminal Justice through the Ages (Rothenburg, 1981), 30‒45, at pp. 39‒42.

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that kingdoms, as they emerge, ‘develop sufficient coercive power … that feuds can be coercively suppressed by the leader, rather than merely being arbitrated’,15 might raise eyebrows. Yet, as Rees Davies remarked, ‘feud as an organised and recognized institution is largely a phenomenon of the stateless society’.16 Collective pacification mechanisms are far older than central coercive ones, and form the background against which the latter developed – as in medieval and early modern Europe, when, as Wormald said about Scotland, ‘the question of interaction between public and private [feudbased] justice is at its most problematic’.17 Her analysis naturally highlighted ‘the justice of the feud’18 in relation to the traditional concept of ‘the justice of the state’. But in human history feud justice is age-old, whereas state justice is relatively new. Accordingly, since the ‘new’ is commonly a bigger factor in change than the ‘old’, my reflections are angled towards the justice of the state.

I In the first half, these reflections are on the wider context – beginning in modern Saudi Arabia. Its legal system applies Islamic shari‘a law, whereby, with deliberate homicide, the victim’s head of kin can either impose the death penalty on the perpetrator, or remit it and accept diyya (blood money).19 Thus the justice of the feud still operates – which impinged on Western consciousness in 1997 after an Australian nurse, Yvonne Gilford, was murdered there.20 Two British colleagues were accused, and confessed in prison; one was sentenced to death, the other to 500 lashes. Westerners’ reactions were mixed. Some (favouring the death penalty) accepted Saudi justice; but many vehemently condemned the judgement because the confessions appeared forced. That point was technically irrelevant under the Saudi system, however – and the only way to prevent the execution was for Gilford’s brother to accept 15 Boehm, ‘Natural history of blood revenge’, 202‒3. 16 R. R. Davies, ‘The survival of the bloodfeud in medieval Wales’, History 54 (1969), 338‒57, at p. 341. 17 Wormald, ‘Bloodfeud’, 57. 18 Ibid., 56ff. (used 27 times in all); a preferable formulation to Gluckman’s ‘peace in the feud’. 19 Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge, 2005), 38‒53, 142‒90. 20 Robert J. Meadows, What Price for Blood? (San Francisco, CA, 2000); C. R. Pennell, ‘Law as a cultural symbol: the Gilford murder case and the presentation of Saudi justice’, International Journal of Human Rights 10 (2006), 121‒42; Hossein Esmaeili and Jeremy Gans, ‘Islamic law across cultural borders: the involvement of Western nationals in Saudi murder trials’, Denver Journal of International Law and Policy 28 (1999‒2000). The Times Digital Archive also provides a useful account (search for ‘Gilford’+‘Parry’+‘McLaughlan’ between December 1996 and June 1999).

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diyya. He initially refused,21 but was persuaded to agree, and $1.2 million (c.£750,000) blood money was paid, allegedly by British defence contractors. The execution and the lashes were cancelled, and the defendants were released in 1998. The case highlights that fundamental instinct for revenge. Gilford’s mother said ‘murder the nurses if they murdered my daughter’,22 and her brother’s wife wished ‘the killers should go through what my sister-in-law went through’.23 This attitude is unsurprising: the second quotation is from a newspaper article examining how, across the West, ‘the appeal of retribution is increasing, not in the style of the vendetta … but along the more limited Biblical lines of an eye for an eye’.24 Thus, in a sense, the state has replaced the kin-group as the agency of retributive punishment (often too lenient for victims’ families). However, in Saudi Arabia the prosecutor is the victim’s head of kin, not a state official. Also, though judges determine whether the accusation is valid, if it is, the accuser determines the accused’s fate: diyya or death. That kindred role is typical of feud justice, but the state is not excluded: it is there in an enabling capacity, and has one executive function, for if diyya is refused, a public executioner carries out the death sentence.25 So the state under shari‘a law could be seen as employing and maintaining the justice of the feud; there is no conflict between ‘state’ and ‘feud’ justice. Now, shari‘a law derives from the Qur’an (seventh century) and Hadiths (‘traditions’; ninth century), as interpreted by scholars over subsequent centuries, and the continuities are strong in Saudi Arabia.26 Diyya originates in one passage in the Qur’an enjoining compassion instead of eye-for-eye retaliation, and another in the Hadiths indicating that a man’s blood money should be 100 camels.27 That is still the Saudi Arabian benchmark – and in 2011 diyya for deliberate homicide was raised from 110,000 ryals to 400,000 (c.£70,000) because of inflation in camel prices.28 Saudi blood money, 21 Though he opposed the death penalty, if the defendant were guilty he wanted her punished, preferably by a long prison sentence – which was not possible under shari‘a law. 22 Pennell, ‘Law as a cultural symbol’, 135, citing Daily Mail, 23 August 1997. 23 Jack O’Sullivan, ‘Wanted: but dead or alive?’, Independent, 4 June 1997 (www. independent.co.uk/news/1254029.html; last accessed 1 June 2013). 24 Ibid.: highlighting the USA’s ‘Federal Victims and Witness Protection Act’, 1982, by which increasingly frequent ‘victim impact statements’, generally demanding a retaliatory death penalty, are presented to the court after an accused is found guilty (note that in the UK such statements do not influence sentencing). 25 Peters, Crime and Punishment, 30‒2, 36‒7; in the Gilford case this received great press attention. 26 Ibid., 6‒68, 148‒53. 27 Qur’an, 5.45; Hadith Sahi-al-Bukhai, 9.83.36. For early diyya, Lahcen Daaït, ‘Le prix du sang (diya) au premier siècle de l’Islam’, Hypothèses (2006/1), 329‒42. 28 Arab News, 10 February 2010 and 6 September 2011, available at www.arabnews.com/

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therefore, represents more than a millennium of continuity – back to the era of Anglo-Saxon wergeld and Gaelic cró.29 The standard view is that diyya was introduced to limit feuding: ‘with the advent of Islam, this institution of revenge was drastically modified’.30 That probably exaggerates, because the concept is pre-Islamic;31 but shari‘a law did institutionalise it,32 producing a process that can be regarded as having been brought about by the earthly rulers (Muhammad and subsequent caliphs) of a theocratic state, who by incorporating ‘peace in the feud’ within Islam also harnessed the sense of the ‘holy’. Thus we can see the justice of the state impacting on that of the feud during the early Middle Ages, in a way that operated throughout the Islamic world, and still does in Saudi Arabia – which, in terms of Wormald’s spectrum, is surely right in the middle. We now shift to Europe, initially the Balkans. Albania is on the spectrum’s edge: the horrific feuding that still occurs there ‘is not about order and stability [but] about honour’, and there is ‘no government impact’.33 That also applied to neighbouring Montenegro and Kosovo until the twentieth century. However, feuding was mostly limited to their mutual mountainous borderlands, which from the fifteenth century harboured opponents of Ottoman conquest who in ‘state’ terms were outlaws.34 These operated their own feud justice, following a law-code (Kanun) attributed to the anti-Ottoman leader Lekë Dukagjini (1410‒81), which ‘became a major symbol of Albanian identity’ and still operates nowadays.35 Though it included blood money, this

29

30 31 32 33

34 35

node/336788 and www.arabnews.com/node/390060; last accessed 1 June 2013. This is for killing a Muslim male; for a female Muslim, or a Christian of either gender, it is only half. With payments in livestock, the animals bred and thus provided lasting income. As a Saudi economist stressed, diyya in camels was a long-term investment for the deceased’s dependants; but 400,000 ryals would be spent before a victim’s children reached maturity: Arab News, 25 September 2011, available at www.arabnews.com/ node/392359 (last accessed 1 June 2013). Peters, Crime and Punishment, 40. Daaït, ‘Le prix du sang’, 331‒2. See ibid., 332. Wormald, ‘Bloodfeud’, 56‒7. From the later 1960s, tough action by the Communist regime greatly reduced bloodfeud, but it has re-emerged significantly since 1991: Mentor Mustafa and Antonia Young, ‘Feud narratives: contemporary deployments of kanun in Shala Valley, northern Albania’, Anthropological Notebooks 14 (2008), 87‒197, at pp. 88‒90; Tanya Mangalakova, The Kanun in present-day Albania, Kosovo, and Montenegro (Sofia, 2004, available at http://pdc.ceu.hu/archive/00003864/01/ The_Kanun.pdf, last accessed 30 November 2013), 3. For Albanian bloodfeud in general, Margaret Hasluck, The Unwritten Law in Albania (Cambridge, 1954), 219‒60. Mustafa and Young, ‘Feud narratives’, 87‒9; Christopher Boehm, Blood Revenge: The Enactment and Management of Conflict in Montenegro and other Tribal Societies (2nd edn, Philadelphia, PA, 1986), 41‒5. Mangalakova, Kanun in Albania, 2‒3.

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was commonly rejected as dishonourable, and the provisions for Mosaic lifefor-life vengeance were preferred and exalted – presumably reflecting hostility to Islam, though aspects of the ‘holy’ also come to mind. Consequently, the factors that for Gluckman and Boehm militate against the likelihood of extensive, enduring feuding did not operate effectively. In the stateless Albanian, Montenegrin and Kosovan highlands, there was (and in Albania still is) little ‘peace in the feud’. The Balkans were hardly typical, however. What of the heart of Europe, the once Germanic/Frankish territories? Germanic feuding and bloodmoney were famously described by Tacitus,36 and analysed almost as famously by J. M. Wallace-Hadrill in his ‘Bloodfeud of the Franks’, which applied Gluckman’s concept to history for the first time.37 Moreover, in 789 Charlemagne prohibited all killings including those of vengeance – ‘the earliest piece of legislation against feud’38 – and added in 802 that if killing did happen, compensation must be offered and accepted immediately; royal officers maintained both laws.39 In the Carolingian Empire as in the Islamic, the state was becoming involved in feud justice. After the Carolingian Empire collapsed, the parallel was not sustained, especially in what became the German empire. Here, roughly speaking, there were three basic trends: at the top, central authority faded as imperial dynasties came and went; at the middle, regional duchies and counties achieved semi-independence, but often fragmented through accidents of inheritance; and at the lower, an expanding knightly class became increasingly prominent.40 South and south-west Germany finished up as a ‘geopolitically highly fragmented area, with … puny territorial states [and a] kaleidoscopic jumble of ill-defined, intermingled and competing jurisdictions’;41 and it was 36 ‘It is an obligation to take over the father’s or kinsman’s feuds (inimicitias) and friendships (amicitias). But feuds do not go on with no reconciliation. In fact, even homicide can be atoned for with a fixed number of cattle or sheep. The whole family receives this compensation. This is an advantage for the community, since feuds are dangerous where freedom exists’. Tacitus, Germania, c. 21: from Tacitus, Agricola and Germany, ed. and trans. Anthony R. Birley (Oxford, 1999), 48. 37 First published in Bulletin of the John Rylands Library 41 (1959), 459‒87; reprinted in J. M. Wallace-Hadrill, The Long-Haired Kings (London, 1962). 38 J. M. Wallace-Hadrill, Early Germanic Kingship in England and on the Continent (Oxford, 1971), 107‒8. 39 Admonitio Generalis, 789, c. 67; Capitulary (at Aachen), 802, c. 32. English versions in P. D. King (trans.), Charlemagne: Translated Sources (Lambrigg, 1987), 216, 240‒1. 40 What follows derives from F. R. H. du Boulay, Germany in the Later Middle Ages (London, 1983), chs 2‒4; John Watts, The Making of Polities: Europe, 1300‒1500 (Cambridge, 2009), 59‒66, 188‒91, 301‒7, 352‒5; Benjamin Arnold, Princes and Territories in Medieval Germany (Cambridge, 1991); and Tom Scott, ‘Germany and the Empire’, in The New Cambridge Medieval History, vol. vii, c.1415–c.1500 (Cambridge, 1998), 337‒66. 41 Hillay Zmora, The Feud in Early Modern Germany (Cambridge, 2011), 49.

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not much better elsewhere. General law-codes existed, especially the Sachsenspiegel (from the thirteenth century),42 but little direct overall authority. The emperors did get lords to make regional peace agreements (Landfrieden), which generally broke down; and princely hostility thwarted Frederick III’s empire-wide Landfried of 1465.43 In practice, the intermingled jurisdictions made legal dispute settling virtually impossible: ‘each party to a dispute always claimed to have justice on its side, whereas no single supreme institution existed which bindingly defined the law’.44 That puts Germany fairly close to Albania on Wormald’s spectrum – and of course it stimulated feuding. German feud research, however, has taken a Sonderweg.45 Since 1939, Otto Brunner’s Land und Herrschaft has been fundamental;46 but it was little known elsewhere until the English translation, ‘Land’ and Lordship, appeared in 1992,47 possibly because of its difficult German,48 but also possibly because Brunner, an enthusiastic National Socialist,49 said it studied the ‘political concepts of the Third Reich’.50 However, as Benjamin Arnold commented, ‘it would be hard to detect that his scholarly exposition … [has] been tainted by false notions about the historical driving forces of Volk and Führung’.51 We may never know; but Brunner’s arguments set the agenda for the German-speaking world, and are crucial here. 42 The Saxon Mirror: A Sachsenspiegel of the Fourteenth Century, trans. Maria Dobozy (Philadelphia, PA, 1999). 43 Du Boulay, Germany, 76‒3; Scott, ‘Germany and the Empire’, 358‒9; Watts, Making of Polities, 62, 101‒2, 190, 303, 354; and F. R. H. du Boulay, ‘Law enforcement in medieval Germany’, History 63 (1978), 345‒55. 44 Zmora, Feud, 40. 45 Netterstrøm, ‘Study of feud’, 20‒8 (on ‘The Sonderweg of German feud research’). 46 Land und Herrschaft: Grundfragen der territorialen Verfassungsgeschichte Südostdeutschlands im Mittelalter (Vienna, 1939). 47 ‘Land’ and Lordship: Structures of Government in Medieval Austria, trans. Howard Kaminsky and James Van Horn Melton (Philadelphia, PA, 1992); this work was a translation of the fourth, heavily revised, edition (Vienna, 1959), in which Österreichs replaced Südostdeutschlands in the title. 48 Ibid., p. xiii. 49 Peter N. Miller, ‘Nazis and Neo-Stoics: Otto Brunner and Gerhard Oestreich before and after the Second World War’, Past and Present 176 (August 2002), 144‒86, at p. 157: in 1943 ‘the officer to whom Brunner reported’ was SS-Obergruppenführer Ernst Kaltenbrunner, head of the Reich’s Security Service. 50 Brunner, Land und Herrschaft (1st edn), 512; cited by Miller, 155. 51 Benjamin Arnold, ‘Structures of medieval government and the thought-world of Otto Brunner (1898‒1982)’, Reading Medieval Studies 20 (1994), 3‒12, at p. 9. But Miller, ‘Nazis and Neo-Stoics’, stresses that the removal of Nazi concepts from the 1959 edition obscures the argument (p. 154); that in 1939 Brunner declared, ‘Not the state, nor culture, are for us today the object of history, but rather Volk and Reich’ (p. 155); and that ‘Fernand Braudel was right to be suspicious of Brunner’s motives’ (p. 158; Land und Herrschaft has never been translated into French).

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Brunner rejected state-oriented history, employing a bottom-up approach to show what was really going on. He focused on Austria’s districts and provinces, to which he applied the term Land. This was not just territorial: Land was a legal idea … nearer to ‘district’ in one of its original senses as a juridical dimension in which, in the medieval milieu, all rights, authority, and law added up to a shared endeavour partly to do with administering the law courts, partly to do with the defence of the land, and partly allowing for selfdefence within the land.52

It is the territory of Landfrieden, and not unlike the English county community. Brunner derived it from the Germanic past, when ‘Civitas, tribe and Land were associations of arms-bearing men … able to fight for their rights’.53 Such fighting could be done either in a court, or if (as was often the case) that was unsatisfactory, through force of arms – in other words feud, which ‘was as integral to medieval political life as war is to the modern state’.54 But Brunner’s feud was purely ‘knightly’, and excluded bloodfeud: The Middle Ages distinguished … between blood vengeance, that is, mortal enmity, and the knightly feud with its ‘challenge’. The former could be employed by anyone … On the other hand the knightly feud was reserved to the nobility and seigneurial proprietors of similar status … The knightly feud could be employed to settle any conflict, so that even the most trivial legal dispute could serve as an excuse for declaring a feud.55

This ‘knightly feud’ did not involve vengeance, and was legitimate if formally declared – as confirmed by Charles IV’s ‘Golden Bull’ of 1356, which prohibited attacks ‘under the pretext of a feud, with arson, robbery or plunder, unless the feud has been announced publicly … three days in advance’.56 The legitimation, however, did not apply to killing, and while ‘the killing of one’s opponent’ and ‘honest homicide’ are recorded ‘often enough’, in knightly feuds the killing of one’s opponents was something rather to be avoided. For one thing, it was not exempt from the vengeance of the victim’s friends and relatives – that is, from blood vengeance and blood feud. And for another, even though it was legally recognised as long as ‘enmity’ existed between the parties, it nevertheless went against the purpose of the feud, which was to rectify an injustice, not to destroy the other party.57 52 Arnold, ‘Structures of medieval government’, 4‒5. Because Brunner used Land in a technical sense, inverted commas are used in citations of the English title. 53 Brunner, ‘Land’ and Lordship, 17. 54 Ibid., 90. 55 Ibid., 16. 56 Quoted in Zmora, Feud, 34, in the context of Baron Georg von Puchheim’s 1453 letter to Emperor Frederick III telling him, ‘I want to be enemy of Your Grace’s land and people, and wherever I encounter your servitors and subjects, I will cause them damage’. 57 Brunner, ‘Land’ and Lordship, 68.

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Killing in ‘knightly feud’ broke the rules, and the killer’s peers would turn against him – making it counter-productive. But otherwise feuding had a very wide scope. ‘Injustice’ was any slight to knightly (and hence aristocratic) honour; and any member of the knightly class could declare feud against any other, even a territorial prince or the emperor.58 The commonest quarrels, however, were among those in frequent contact, and the typical feud occurred within a Land. The aim was to make an opponent redress the ‘injustice’ by damaging his lordly and economic status through attacks on his dependent peasantry. Thus the peasants were ‘most affected by feuds … the loss of harvest, cattle, clothing, and household furnishings was bad enough, while the burning down of whole villages caused losses that were irreparable’59 – and peasants were often killed. But that was how the world worked: ‘feud [was] an evil, but one as unavoidable as crop failures and famine’.60 The affected peasantry had either to suffer or to abandon their lords – the purpose of the exercise – and fatalities were simply collateral damage. ‘Land’ and Lordship ‘has become a veritable battleground’,61 and consequently ‘German historiography exceeds by far any other national historiography as to the quantity of feud studies produced’62 – all broadly within Brunner’s conceptual framework, as Hillay Zmora’s recent overview demonstrates.63 Zmora himself develops the analysis significantly. One instance is his concept of ‘inimical intimacy’:64 Brunner located feuding within the Land, but for Zmora it is even more local. Feuds mostly derive from neighbourly friction – and those who fail to counter a neighbour’s hostility are despised by others. Hence Zmora stresses proximity more than honour. Also, most importantly, he brings in a higher political level, highlighting rivalries and conflicts among the German princes – who used, manipulated and stimulated knightly hostilities to gain advantages against their own princely rivals. This gives a top-down dimension to German feuding after all, and leads Zmora to connect it with ‘state-building’, albeit at the princely rather than the imperial level.65 Zmora’s insights are fascinating, with European, not just German, relevance; yet his work is still within Brunner’s ‘knightly feud’ parameters. That 58 59 60 61 62 63 64 65

As in note 56, above. Brunner, ‘Land’ and Lordship, 88‒9. Ibid., 91, quoting a tenth-century text. Zmora, Feud, 9. Netterstrøm, ‘Study of feud’, 22. Zmora, Feud, 1‒28. Ibid., 50 ff., 77 ff. Ibid., chs 5‒6, based largely on Franconia, his own research area, rather than Brunner’s Austria; also Hillay Zmora, State and Nobility in Early Modern Germany (Cambridge, 1997).

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is a general point: as Netterstrøm chides, the ‘self-sufficiency of feud studies probably explains why German feud research has neither significantly obtained the foreign anthropological and historical literature on feud nor compared the German feud system to the feuding societies of, say, Icelandic peasants or Scottish aristocrats’.66 Comparisons with Scotland are certainly instructive. Two immediate thoughts are that Scottish feuding often had ‘no slaughter upon neither side’;67 but that German knightly quarrels could involve killing, and even (as Brunner admitted) bloodfeud: Killing for revenge … was something quite different … The murderer was peaceless vis-à-vis the friends and relatives of his victim, and could therefore be killed out of hand unless an atonement intervened … Even among the nobility and others who had the right to feud, and whose feuds were mostly of the ordinary sort, the blood feud was not unknown.68

Thus it is not that late medieval German elites did not have bloodfeuds; it is that these appear (because of Brunner’s approach) not to have received indepth study. Yet the Sachsenspiegel law-code that was followed for centuries treated wergeld, a major concomitant of bloodfeud, as current;69 and actual wergeld payments by killers are recorded in seventeenth-century Holstein.70 Surely, therefore, compensation for both ‘honest homicide’ in knightly feuds and killings in bloodfeud was required – which suggests German parallels with all types of Scottish feuding. As for the anthropological issue, ‘peace in the feud’ existed in early medieval Germany, upheld by central power; but when central power diminished, we might expect feuding to have intensified. However, if most significant quarrels occurred within coherent group structures (Brunner’s Land, Zmora’s neighbourhood), then, in the absence of effective external authority, group pressures to avoid or settle feuding would no doubt have increased, as would individual and collective fears of its disastrous effect. The collective group response would presumably have been to create a means of settling elite disputes honourably but with the least possible violence – as Brunner implicitly argued.71 That is surely what the knightly feud was about: letting landowning neighbours quarrel dramatically and satisfactorily, without 66 Netterstrøm, ‘Study of feud’, 22‒3. 67 Above, p. 194. Two examples are the Angus–Dalkeith feud in 1399 and the Hepburn– Home one in the mid-1440s: Michael Brown, The Black Douglases: War and Lordship in Late Medieval Scotland, 1300‒1455 (East Linton, 1998), 88‒91, 94; Armstrong, ‘Fyre of ire kyndild’, 64‒72. 68 Brunner, ‘Land’ and Lordship, 68. 69 Dobozy (trans.), Saxon Mirror, 20‒4, and ad indicem. 70 Bertha S. Phillpotts, Kindred and Clan in the Middle Ages and After (Cambridge, 1913), 125‒46, esp. pp. 138‒9. Holstein is the only part of the Empire included in Phillpotts’ book. 71 Brunner, ‘Land’ and Lordship, 68.

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threatening each other’s death. So, while honour could be ostentatiously upheld, the factors that made feud so fearsome were removed. I suggest, therefore, that in later medieval Germany the ‘bloodfeud of the Franks’ was ‘sanitised’ or emasculated,72 allowing elites to indulge in frequent non-mortal, honourable and legitimate conflicts – in which ordinary people suffered most. Meanwhile, what was going on in the western remnant of the Frankish Empire, namely France? Much the same, according to Howard Kaminsky.73 A translator of Land und Herrschaft, he also dismisses state-focused history as anachronistic, focuses on Land-like ‘modules of lordship’, emphasises ‘the noble feud’, and argues that it was fundamental: ‘just as one cannot imagine the modern state tolerating a right to feud, so we cannot imagine the medieval state without it’.74 Yet while in principle noble/knightly feud (in French terminology ‘guerre privée’, or private warfare) might have been the same in France and Germany,75 royal power was not. It grew significantly in thirteenth- and early fourteenth-century France, and though there were huge political crises later, the basis of French crown authority survived and royal power was reconstructed. But, as Graeme Small stresses, ‘the picture … is necessarily more complex than the roller-coaster, single-track story of the monarchy’s “progress”’. We should think instead of a ‘plurality of powers … and consider the interactions between them: kings and princes, of course, but also nobles, churchmen, municipal authorities and peasant communities’.76 Much of the royal–noble interaction involves the noble feud, which ‘continued in France throughout [and beyond] the later Middle Ages’;77 and here I consider the crown, or state, response. 72 ‘Yet despite the apparent rule of force, a feature of the German Fehde was the frequent weakness of those who pursued it’: Du Boulay, ‘Law enforcement in medieval Germany’, 346. 73 Howard Kaminsky, ‘The noble feud in the later Middle Ages’, Past and Present 177 (November 2002), 55‒83. 74 Ibid., 57‒8. 75 Except that accounts of French private war show that there was no bar to killing; and see Justine Firnhaber-Baker’s explanation of why she prefers ‘war’ to ‘feud’: ‘Jura in Medio: the settlement of seigneurial disputes in later medieval Languedoc’, French History 26 (2012), 441‒59, at pp. 445‒6. 76 Graeme Small, Late Medieval France (Basingstoke, 2009), 3; from Lewis’ phrase, ‘the pluralistic nature of power distribution’: P. S. Lewis, ‘Reflections on the role of royal clientèles in the construction of the French monarchy’, in N. Bulst et al. (eds), L’état ou le roi (Paris, 1996), 51‒68, at p. 55. The ‘plurality of powers’ is a recurrent theme in Small’s discussion of the political aspects of late medieval French history. See also David Potter (ed.), France in the Later Middle Ages, 1200‒1500 (Oxford, 2003), and the chapters on France in The New Cambridge Medieval History, vol. vi, c.1300–c.1415 (Cambridge, 2000), and vol. vii, c.1415–c.1500 (Cambridge, 1998). 77 Kaminsky, ‘Noble feud’, 66. See, e.g., Robin Harris, Valois Guyenne (Woodbridge, 1994), 137‒42; Stuart Carroll, ‘The peace in the feud in sixteenth- and seventeenthcentury France’, Past and Present 178 (February 2003), 74‒115; and Stuart Carroll,

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From Louis IX (1214‒70) to Charles V (1364‒80), some thirty ordinances prohibiting private warfare were issued, to little general effect;78 in southern France ‘local wars were just as common … as in the feud-friendly Empire’.79 Yet the ordinances did at least assert royal antipathy to private warfare. Also, both Richard Kaeuper and Justine Firnhaber-Baker show that while they did not prevent that from breaking out, once it happened individuals could be prosecuted for breaching them.80 But the ‘plurality of powers’ also applied: noble claims to a right to private warfare had considerable effect,81 and so such prosecutions succeeded only in areas under direct royal jurisdiction.82 However, from Philip IV’s reign (1285‒1314) other strategies were employed. First, ‘interaction between royal and noble powers’ was utilised: ‘royal officials allowed and indeed themselves engaged in a range of extra- and quasi-judicial negotiations with warmakers’, especially by acting as high-status honest brokers to persuade warring parties to compromise and make peace.83 Second, a direct means of responding to feuding anywhere, irrespective of jurisdictions, was developed: that of bringing one of the parties into the king’s special peace.84 To attack someone within that peace was tantamount to attacking the king himself – always illegal no matter where the offender lived. This nullified the plurality of powers, since everyone in the kingdom was the king’s subject. Providing ‘safeguards’ for threatened individuals, therefore, helped combat private warfare. It was not infallible: a safeguard might be obtained by the aggressor, or by both sides, or could be ignored – though that was risky.85

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Blood and Violence in Early Modern France (Oxford, 2006), which has valuable material on the fifteenth century in the introduction and first chapter. Most prohibited it during times of international war, but at least one per reign banned it altogether: Justine Firnhaber-Baker, ‘Seigneurial war and royal power in later medieval southern France’, Past and Present 208 (August 2010), 37‒76, at pp. 51‒3; and, more generally, Raymond Cazelles, ‘La réglementation royale de la guerre privée de Saint Louis à Charles V et la précarité des ordonnances’, Revue historique de droit français et étranger, 4th series, 38 (1960), 530‒48. Firnhaber-Baker, ‘Seigneurial war’, 46; also Firnhaber-Baker, ‘Jura in Medio’, 444‒7. Richard W. Kaeuper, War, Justice and Public Order: England and France in the Later Middle Ages (Oxford, 1988), 239‒60; Firnhaber-Baker, ‘Seigneurial war’, 51‒7 (superseding Cazelles’ and Kaminsky’s interpretation); Firnhaber-Baker, ‘Jura in Medio’, 447‒9. Firnhaber-Baker, ‘Seigneurial war’, 55. Ibid., 63‒7. Firnhaber-Baker, ‘Jura in Medio’, 450‒5 (quotation from p. 451). Firnhaber-Baker, ‘Seigneurial war’, 69‒74; also Kaeuper, War, Justice and Public Order, 235‒60. As illustrated by the execution of the early fourteenth-century Gascon lord Jourdain de l’Isle. See the very different accounts in Kaminsky, ‘Noble feud’, 69, and Kaeuper, War, Justice and Public Order, 226; plus Joseph Kicklighter’s fascinating full-scale study, ‘The nobility of English Gascony: the case of Jourdain de l’Isle’, Journal of Medieval History 13 (1987), 327‒42.

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Safeguards were simply based on the king’s age-old right to protect his friends;86 but through that traditional power, French crown authority extended into the world of the feud. Third, that also happened via letters of remission granting royal pardons, which survive from 1304 on. Though these were criticised both then and now ‘for allowing thieves and murderers to escape with impunity’,87 Claude Gauvard’s magisterial analysis of 7,500 of the remissions that the royal chancery issued throughout the kingdom between 1364 and 1515 paints a very different picture.88 They went to all social classes, though nobles are over-represented proportionally. Fifty-seven per cent involved homicides, of which the vast majority (85 per cent) were acts of vengeance – but only about a third were triggered by previous killing, while two-thirds avenged oral or physical insults.89 Thus, while ‘l’honneur blessé’ (wounded honour) was a crucial motive, life-for-life killing was not prevalent. Gauvard attributes this to the letters of remission,90 arguing that a predominant sense of honour fostered wide tolerance of violent responses to insults, but that after the initial hot-blooded action the priority was to prevent further killing: hence the remissions.91 And being acts of royal grace and mercy outside and above formal legal processes,92 they, like safeguards, were available to anyone irrespective of jurisdictional technicalities. But what of the dead victim’s kin, who would want their own revenge? Because remission letters narrate the offender’s story, Gauvard’s analysis is almost entirely from that standpoint. However, one brief passage shifts the focus: Whatever the process adopted for restoring the peace, an accord was always necessary in order for the king to be able to legitimately grant his remission. The clause that limited royal grace, the only one that might be formulated, provided that ‘satisfaction is to be made to the party if not [already] made’. It 86 Firnhaber-Baker, ‘Seigneurial war’, 70‒1. 87 Firnhaber-Baker, ‘Jura in Medio’, 457. 88 Claude Gauvard, ‘De grâce especial’: Crime, état et société en France à la fin du Moyen Âge (1991; 2nd (single-volume) edn, Paris, 2010), esp. 703‒806, 896‒952. For a brief version of the most striking part of her argument, see Claude Gauvard, ‘Grâce et exécution capitale’, Bibliothéque de l’École des chartes, 153 (1995), 275‒90. The 7,500 remissions consist of all 3,752 issued between 1380 and 1424, plus a full sample of the rest. 89 Gauvard, ‘De grâce especial’, 242 (Table 8), 756 (Table 41; my extrapolation), and in general chapter 16 (‘L’honneur blessé’). 90 Ibid., within chapters 17 (‘La Vengeance’), 18(2) (‘Meutres et homicides’), and 20 (‘Pardonner et punir’); esp. 778‒9, 797‒9, 940‒4. 91 Best summed up in Gauvard, ‘Grâce et exécution capitale’, 218: ‘the royal chancery had every facility to grant the remission – a remission which stops vengeance and precipitates accord between the parties’. 92 Ibid., 277‒80, and Gauvard, ‘De grâce especial’, 907‒20 (‘Justice et miséricord’).

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is present in 90% of the letters: it is therefore a clause that could not be got round.93

The procedure for bestowing royal grace is also important.94 A killer seeking remission had to obtain chancery authorisation, get his letter properly written, submit it for royal approval, pay a fee – and then present it to the relevant local court, where its accuracy would be investigated, ideally before his victim’s kin, who could challenge it and demand damages. Only then, if all went well, would the letter be formally ratified. The court hearing was vital, but it judged not the killer himself but the narrative in his letter and, especially, the satisfaction of his victim’s kin – to assure the king that his exercise of royal grace was deserved. This is the most significant way whereby the late medieval French crown came, by extra-judicial means, to exert state authority over the feud settlement process – though actual feuding still continued during the early modern era. Thus, while France and Germany had common roots, the late medieval contrast is striking. Admittedly, this might be due partly to different approaches: if a German study included peasant quarrels and killings, or if a French one dealt only with the knightly classes, it might be less so.95 Nevertheless, the role of the crown was crucial: the French kings found ways of bypassing jurisdictional problems; the German emperors did not; nor, yet, did the princes (who did not possess ‘royal grace’). As for Wormald’s spectrum, France can be placed well within the English side – while the relevance of French procedures, especially letters of remission, for any commentary on her ‘Bloodfeud’ is patently obvious. We now cross to England, where, to quote Wormald, before the Norman Conquest public authority had already taken over at least part of the responsibilities of the kin, and where within two centuries after it the bloodfeud itself had been replaced by a concept of crime enshrined in a uniquely comprehensive system of royal justice.96

Her summing-up is still valid, though nuanced by recent work. In particular, Paul Hyams’ Rancor and Reconciliation softens the distinction between earlier kin-based and later crown-based justice.97 Hyams shows that once the latter 93 Gauvard, ‘De grâce especial’, 778: ‘satisfaccion soit faicte a partie si faite n’est’. 94 Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and their Tellers in SixteenthCentury France (Cambridge, 1988), 8‒14; also Carroll, ‘Peace in the feud’, 106‒8, and Carroll, Blood and Violence, 214‒21. 95 Since over 90 per cent of Gauvard’s letters related to non-nobles, the conclusions from these will obscure any noble-specific points. That said, Carroll’s analysis in Blood and Violence, which focuses much more on nobles, does not contradict Gauvard’s. 96 Wormald, ‘Bloodfeud’, 57. 97 Paul L. Hyams, Rancor and Reconciliation in Medieval England (Ithaca, NY, 2003); also T. B. Lambert, ‘Theft, homicide and crime in late Anglo-Saxon law’, Past and

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became predominant (in the thirteenth century), state agency provided an effective and safe way of gaining revenge on an opponent – by getting him condemned either to death, or more commonly to outlawry for fleeing trial (so anyone could kill him). Many of Hyams’ ‘case narratives’ illustrate how English royal justice became an instrument of feud: if you seek revenge and can manipulate the judicial system (or have it manipulated), this becomes a powerful weapon.98 The more complex the system, the more it could be manipulated – as in fourteenth- and fifteenth-century England, where numerous conflicts among the landed classes led Kaminsky to apply his concept of ‘noble feud’ there as well as to France. Despite errors, he has a point:99 English noble and gentry feuding seems to have become more frequent, particularly in the fifteenth century.100 Gerald Harriss provides the best explanation.101 Most feuding originated in land disputes, which became common because England’s increasingly complex land laws not only stimulated claims and counter-claims but also made victory in court nearly impossible to achieve.102 Instead,

198 199

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101

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Present 214 (February 2012), 3‒43; John G. H. Hudson, ‘Feud, vengeance and violence in England from the tenth to the twelfth centuries’, in Belle S. Tuten and Tracey L. Billado (eds), Feud, Violence and Practice: Essays in Medieval Studies in Honor of Stephen D. White (Farnham, 2010), 29‒54; Richard L. Keyser, ‘“Agreement supersedes law, and love judgment”: legal flexibility and amicable settlement in Anglo-Norman England’, Law and History Review 30 (2012), 37‒88; Daniel Klerman, ‘Settlement and the decline of private prosecution in thirteenth-century England, Law and History Review 19 (2001), 1‒65. Hyams, Rancor and Reconciliation, 242‒308; and see Brown, Bloodfeud, 44: ‘in a feuding society … the law was simply seen as a weapon with a cutting edge of its own for pursuing violence’. Kaminsky, ‘Noble feud’, 74‒9; though the English disputes, like the French, do not fit all the Brunner/Kaminsky criteria. He is badly mistaken over the Gloucester– Hereford dispute of 1290, which they claimed was legitimate in the Welsh Marches; see Michael Prestwich, Edward I (London, 1988), 348‒50. Also, his statement that ‘Edward III still “condoned” the nobles’ “right of defiance” in principle’ (citing M. H. Keen, The Laws of War in the Late Middle Ages (1965), 232) is wrong: Edward was referring to Aquitaine, not England. Henry VI’s reign is the apogee. R. L. Storey, The End of the House of Lancaster (2nd edn, Stroud, 1999), and Ralph A. Griffiths, The Reign of King Henry VI (2nd edn, Stroud, 2004), chs 7, 20, highlight the local violence. See also J. G. Bellamy, Criminal Law and Society in Late Medieval and Tudor England (Gloucester, 1984) 54‒89, for what he called ‘gentlemen’s wars’ (pp. 64, 70, 84). Gerald Harriss, Shaping the Nation: England, 1360‒1461 (Oxford, 2005), 197‒202, from which the rest of this paragraph derives. The best account of the criminal justice system is Edward Powell, Kingship, Law, and Society: Criminal Justice in the Reign of Henry V (Oxford, 1989), 23‒114; see also Kaeuper, War, Justice and Public Order, 151‒60, 174‒83, 260‒7, and Bellamy, Criminal Law, 54‒89. Thus, ‘it might even be argued that royal power contributed to disorder and the

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disputants used simpler actions of trespass and breach of the peace, hoping to pressurise opponents into out-of-court settlements. And both sides generally obtained support from their lords; so great men were sucked into gentry disputes. Ideally, compromises would be arranged, with reparations where necessary.103 Unfortunately, such arbitrated settlements were not absolutely binding, and were often broken. And though appeals could be made to the chancellor, parliament or king, if one party appealed successfully, the other generally objected. Consequently, ‘where litigation, lordship, private treaty, or public authority failed, it was likely that one of the parties would resort to force’.104 As elsewhere, that meant the honourable use of arms in defence of family interests – feuding – which was unlikely to be punished heavily. Inter-family feuds often escalated into local power struggles, pulling in rival magnates – which could exacerbate the situation, necessitating crown intervention. However, if one side in a conflict was well placed at the royal court or had powerful friends there, crown intervention might not be neutral. The interaction of local and national politics, therefore, could be destabilising: for several historians, indeed, local feuding was a major causal factor in the mid fifteenth-century ‘Wars of the Roses’.105 This is not unlike Brunner’s, Kaminsky’s, and especially Zmora’s worlds – though England’s ‘state problem’ appears to be too much institutionalised crown authority, not too little. The best solution was direct royal action – very direct, believed the author of a story about Henry V (1413‒22) in the Brut chronicle. A Lancashire and a Yorkshire knight were feuding, and some of their followers were killed. Henry summoned them, and asked on what authority they had made his lieges kill each other. They begged for mercy, whereupon Henry said he had some oysters to eat, and unless they had made peace before he finished, they would be hanged!106 They did, of course. The story – presumably written later, when feuding was rife – portrayed Henry as the great upholder of justice. Yet the letter of the law was not followed: despite the killings, he pardoned the offenders – but terrified them into not offending again. Edward Powell has illustrated the reality of such flexibility. Under Henry IV (1399‒1413) the midlands had suffered from serious

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authority of the crown was a public nuisance’: M. T. Clanchy, ‘Law, government and society in medieval England’, History 59 (1974), 73‒8, at p. 78. Commonly in ‘lovedays’: Michael Clanchy, ‘Law and love in the Middle Ages’, in John Bossy (ed.), Disputes and Settlements: Law and Human Relations in the West (Cambridge, 1983), 47‒68, refined by Keyser, ‘Agreement supersedes law’, 40‒4. For arbitration, Edward Powell, ‘Arbitration and the law in England in the late middle ages’, TRHS, 5th series, 33 (1983), 49‒67, and Edward Powell, ‘Settlement of disputes by arbitration in fifteenth-century England’, Law and History Review 2 (1984), 21‒43. Harriss, Shaping the Nation, 200. See note 100, above. The Brut, 2 vols, ed. F. W. D. Brie (EETS, 1906‒8), ii, 595; Powell, Kingship, Law, and Society, 230‒1.

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disorder and feuding; so in 1414 Henry V sent King’s Bench judges there on ‘superior eyre’. Some 2,200 persons were indicted for violence, and about 800 stood trial (the rest would have been outlawed). But few were found guilty; most either paid a fine in advance or bought a pardon, and Henry soon pardoned everyone who had been indicted. That looks like serious weakness in one of medieval England’s toughest kings – yet, as Powell asks, what else could be done? Those indicted included most of the county elites; had they been imprisoned or executed, local government would have collapsed.107 On the other hand, ‘the most serious offenders were made to take out recognisances for large sums to keep the peace; for the rest a fine or pardon was sufficient to buy off the king’s suit and gain readmission to his peace’.108 Those readmitted to the king’s peace would have known that reoffending would not be tolerated – surely the Brut’s main message. Henry V’s strong personal kingship evaporated under Henry VI (1422‒61), and though Edward IV (1461‒83) was tougher, his real heir in this respect was Henry VII (1485‒1509). Had the oysters story been written about him, the knights would have been put under recognisance, promising in writing to pay a large sum of money if they offended again. All fifteenth-century kings used recognisances to a certain extent, but Henry VII made them ‘the linchpin of his entire ruling system’;109 hundreds were exacted from men engaging in violent disputes, generally after appearing before Henry himself or his council. This bypassed the formal, clogged-up, law-courts – but in practice was the best way of dealing with troublesome gentry and lords.110 Thus the response to feuding by the two most successful fifteenth-century English kings paralleled French rather than German practice. Also, the numerous pardons recorded in the patent rolls of fourteenth- and fifteenthcentury England suggest that royal grace was exercised as frequently as in France;111 while English letters of pardon had to be ‘proved’ in court, when ‘any appellant wishing to bring a suit against the recipient of the pardon’ was entitled to object.112 However, as the word ‘appellant’ indicates, a simple 107 108 109 110

Ibid., 166‒94. Ibid., 194. Sean Cunningham, Henry VII (Abingdon, 2007), 216. Ibid., 209‒33; Sean Cunningham, ‘Loyalty and the usurper: recognizances, the council and allegiance under Henry VII’, Historical Research 82 (2009), 459‒81; Sean Cunningham, ‘Henry VII, Sir Thomas Butler and the Stanley family’, in Tim Thornton (ed.), Social Attitudes and Political Structures in the Fifteenth Century (Stroud, 2000), 220‒41; and Sean Cunningham, ‘The Establishment of the Tudor Regime: Henry VII, Rebellion, and the Financial Control of the Aristocracy, 1485‒1509’, unpublished PhD thesis (University of Lancaster, 1995). 111 Pardons appear on virtually every page of the 45 volumes of the Calendars of Patent Rolls covering the years 1307‒1509. 112 Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth-Century England (Woodbridge, 2009), 20.

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objection was not enough; it had to be made through a legal ‘appeal of felony’ – a formal private prosecution – which could win damages, but might be both costly and unsuccessful.113 This was obviously much less satisfactory for injured parties than the French system, in which remissions were almost always conditional upon their satisfaction. The reason was, of course, the great development of twelfth- and especially thirteenth-century English royal justice114 – as a result of which, F. W. Maitland remarked many years ago, ‘the law of wer [wergeld], being no longer applicable if there was felony, perished for lack of sustenance, and the parentes occisi [kinsmen of the slain] were reduced to getting what they could by threats of an appeal’.115 Wergeld, indeed, had become ‘anathema to English common law’ – as Rees Davies commented in regard to Edward I’s abolition of the Welsh version, galanas, after conquering the principality of Wales in 1284.116 But it must be added that outside the principality, in the Welsh Marches, galanas appears to have survived into the fifteenth century. Moreover, across the Irish Sea the similar éraic operated within Gaelic lordships well beyond the Middle Ages,117 while blood money is found in Anglo-Irish lordships as well.118 Ireland leads us back to Scotland, where the eleventh-century ‘Laws of the Brets and the Scots’ (so-called) detailed the equivalent, cró119 – which, as Wormald showed, survived loosely as late medieval and early modern ‘assythment’.120 113 For good accounts of the fourteenth-century English system, see ibid., 1‒81, and Anthony Musson, Public Order and Law Enforcement: The Local Administration of Criminal Justice, 1294‒1350 (Woodbridge, 1996). 114 Above, pp. 207‒8. 115 Sir Frederick Pollock and Frederic William Maitland, The History of English Law before the time of Edward I, 2 vols (1895; 2nd edn, reissued, Cambridge, 1968), ii, 483. 116 Davies, ‘Survival of bloodfeud’, 339. 117 The best study is Neil McLeod, ‘The blood-feud in medieval Ireland’, in Pamela O’Neill (ed.), Between Intrusions: Britain and Ireland between the Romans and the Normans (Sydney, 2004), 114‒33, which starts in the 1450s and uses Gluckman’s ‘Peace in the feud’. See also Katherine Simms, From Kings to Warlords: The Changing Political Structure of Gaelic Ireland in the Later Middle Ages (Woodbridge, 1987), 89‒91; K. W. Nicholls, Gaelic and Gaelicized Ireland in the Middle Ages (2nd edn, Dublin, 2003), 59‒64; and Fergus Kelly, A Guide to Early Irish Law (Dublin, 1988), 125‒34. 118 Peter Crooks, ‘Factions, feuds and noble power in the lordship of Ireland, c.1356‒ 1496’, Irish Historical Studies 35 (2007), 425‒54, esp. p. 453; Nicholls, Gaelic and Gaelicized Ireland, 60‒4. 119 Alice Taylor, ‘Leges Scocie and the lawcodes of David I, William the Lion and Alexander III’, SHR 88 (2009), 207‒88, at pp. 237‒43, and (for text and translation) 278‒9, 286‒8; Patrick Wormald, ‘Anglo-Saxon law and Scots law’, SHR 88 (2009), 192‒206. 120 Wormald, ‘Bloodfeud’, 62‒4. It was still paid in the eighteenth century, and was not formally abolished until 1996: W. David H. Sellar, ‘Forethocht felony, malice aforethought and the classification of homicide’, in W. M. Gordon and T. D. Fergus (eds), Legal History in the Making (London, 1991), 43‒59, at p. 47.

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And with respect to Scotland, whereas when ‘Bloodfeud’ was published it seemed exceptional, it now appears to be entirely normal. What are the general implications? Though Max Weber’s concept of the modern state’s ‘monopoly of legitimate force’ is conspicuously absent,121 the underlying concept – that the state’s purpose is to uphold law and order – applies usefully to the medieval era. But what law was upheld? It involved not only enactments (‘statute law’), but also traditional rules that tolerated the commonest forms of killing (in hot-blooded quarrel and self-defence) and required compensation for the victim’s kin. And how was ‘order’ maintained? The main need was to prevent prolonged feuding, which was more achievable through pacification than punishment, since the latter could stimulate more feud. Pardons and blood money were therefore crucial for medieval law-and-order mechanisms. Admittedly these varied – the ‘state’ is less visible in Germany, while in England, where it is most visible, the compensation requirement disappeared. As for Scotland, its system resembles France’s – and both seem good examples of the late medieval approach to maintaining law and order, which evokes not Weber’s monopoly of force but Michel Foucault’s contention that sovereignty’s fundamental attribute was the right ‘to take life or let live’.122 The life-giving pardon can be called the ultimate act of state.

II The rest of my reflections are specifically Scottish, and focus on royal remissions. Technically, these relate to crime rather than feuding, which, as the 1598 act anent feud shows, was not crime per se.123 But what was medieval crime? For Scotland, Alice Taylor answers significantly, ‘we cannot continue identifying crime by the presence of royal or … state punishment. Crime should instead be understood to denote offences that an authority put right, through the force of its own law-making’.124 Saudi Arabia, where the state plays a largely enabling role, comes to mind.125 But from the later twelfth 121 Weber: Political Writings, ed. Peter Lassman and Ronald Spiers (Cambridge, 1994), 310‒11. 122 Michel Foucault, ‘Society must be defended’: Lectures at the Collège de France, 1975‒76, trans. David Macey (London, 2003), 240‒1. See also Gauvard, ‘Grâce et exécution capitale’, 290: ‘The judicial power of the king thus has a double nature: it is simultaneously a power of life and a power of death’. 123 RPS, 1598/6/2: they were intended to pacify feuds through compulsory royal arbitration, and also enable those against whom ‘deadly crimes’ had been committed in the course of the feuds to make formal accusations. 124 Alice Taylor, ‘Crime without punishment: medieval Scottish law in comparative perspective’, in David Bates (ed.), Anglo-Norman Studies, XXXV: Proceedings of the Battle Conference 2012 (Woodbridge, 2013), 287‒304; quotation from p. 304; I am most grateful to Dr Taylor for sending me a pre-publication copy. 125 Above, p. 197.

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century the Scottish crown claimed more. A charter of William I asserted that major offences – ‘murder, premeditated assault, rape, arson and plunder’ – belonged ‘to my regality’ and should be prosecuted by his ‘crowner’ before his justices; while his laws forbade lords from holding courts without notifying the sheriffs, and reserved ‘four pleas ... pertaining to his crown: namely rape, plunder, arson and murder’.126 Furthermore, the thirteenth-century ‘legislation of Alexander II reveals a royal monopoly over crime’ – which has obvious implications for the granting of remissions.127 Such a monopoly was never absolute, however, because (as in France) the rights of the victim of crime or his kin remained fundamental. Consequently, Scottish remissions, like French (and as in shari‘a law), were always conditional on the offender giving assythment. That is clear from the first known text of a remission for killing, in an early fourteenth-century formulary: [the king] remits our rancour against T de C for the death of X, provided that he makes peace with the relatives and friends of X so that we hear no further complaint; takes him under our peace; and forbids anyone to hurt him on account of the death of X under pain of forfeiture, or to kill him under pain of death.128

An actual early fifteenth-century remission is similar but fuller: Remission by Robert, Duke of Albany, Governor of Scotland, to Thomas Boyd of Kilmarnock, Robert Muir of Rowallan, etc., for the slaughter of Maurice Neilson of Dalrymple, Robert Black and Donald Young at Dalmellington, for burning their houses, for ravaging the goods and chattels of Alexander Cunningham at Badlane, and the lands of Drumcross, and for all other depredations. Provided that Thomas etc. make such peace and concord with the kin and friends of the late Maurice etc., and give such compensation for all damages, that henceforth no complaint shall be heard about this matter. Also, Thomas etc. are taken firmly into the Governor’s peace: they are not to be attacked, under threat of royal forfeiture. 24 October 1409.129

Unfortunately Scottish remissions, unlike French, did not rehearse offenders’ stories; but their principle was the same. So was the procedure, which (at least from the later fifteenth century) involved obtaining a royal letter that was either effective immediately, or was examined in court (usually under challenge), 126 RRS, ii, no. 80; Taylor ‘Leges Scocie’, 211, 282‒3 (LS, c. 7). 127 Quotation from Taylor, ‘Crime without punishment’, 304; and for the implications, Cynthia J. Neville, ‘Royal mercy in later medieval Scotland’, Florilegium (forthcoming). I am most grateful to Professor Neville for sending me a final draft of this article, which introduces her current research project on the subject. 128 Scottish Formularies, ed. A. A. M. Duncan (Stair Society, 2011), E44, giving the text of either A39 or A40 (p. 21), which are early fourteenth-century; Duncan’s summary, slightly amended. 129 NRS, Boyd of Kilmarnock Papers, GD8/1; my summary.

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and if acceptable was then put into operation; but both processes depended on the opposing party issuing a ‘letter of slains’ certifying due satisfaction.130 In Scotland as in France, however, remissions were strongly criticised, as in the later-fifteenth-century poem on kingship known as ‘The Harp’: But of one thing all good men marvel more When great council, with thine own consent Has ordained strict justice no man to spare Within short time thou changes thine intent Sending a contrair letter incontinent Charging of that matter may be naught Then all the world murmurs thou art bought … And when thou gives a plain remission In case requiring rigour of justice But [i.e. without] goodly cause, thou offends to the crown And forfeits both to God and thine office.131

Historians have mostly echoed such criticism, but detailed analysis gives a more complex picture. The first reference to remissions is in the Assise Willelmi Regis: if a thief was lawfully executed and his kin killed his accuser, ‘the king shall have his full right from the killers’ – ‘without any concord or remission unless by the advice and consent of [the victim’s] kin’; and if the king granted remission without the knowledge of the victim’s kin, they ‘may take vengeance on those who killed their kinsman’. But only the first part (to the dash) is William I; the rest is a late thirteenth- or early fourteenth-century amendment.132 That shows the emergence of remissions, and highlights the necessity for consent by the victim’s kin and the legitimacy of vengeance killing – though perhaps only in this special case. Formal parliamentary records begin with Robert I’s legislation of 1318, which has three relevant chapters. Because of past ‘disagreements and grievances … between the nobles’, c. 22 forbade ‘that henceforth any person cause damage, burden or harm to another’, and anyone doing so shall have 130 This derives mostly from Jackson W. Armstrong, ‘The justice ayre in the Border sheriffdoms, 1493‒1498’, SHR 92 (2013), 1‒37, at pp. 30‒3; and for slains, see Wormald, ‘Bloodfeud’, 62‒3, 66. 131 Liber Pluscardensis, 2 vols, ed. F. J. H. Skene (Edinburgh, 1877‒80), i, 399‒400. This chronicle was written in the early 1460s, but survives only in copies from 1478 × 1496 and (apparently) 1489. The poem – the last item in the chronicle – is in only the 1489 version (ibid., i, pp. x–xii), and so may well be an addition to the text proper. Therefore it is more likely to be aimed at James III (whom the criticism fits exactly, see below, p. 217) than James II, as is usually said, e.g. by Roland Tanner, The Late Medieval Scottish Parliament: Politics and the Three Estates, 1424‒1488 (East Linton, 2001), 162. 132 Taylor, ‘Leges Scocie’, 232‒4.

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‘broken the peace of the lord king’,133 which looks like a (highly optimistic) ban on feuding. Also, c. 5 enacted that when anyone was convicted ‘of homicide, rapine, theft or other offences … common justice be done without redemption’, and c. 11 that ‘no-one [shall] take a redemption from a thief ’– but neither provision applied to the king or to lords possessing ‘liberties in such matters’.134 So lords of regality could grant remissions; but who else had been doing so, wrongfully? Perhaps earls – which would have important implications – but we cannot say. However, crown authority over remissions was now asserted. Next, after David II came back from captivity in 1357, his ‘full council’ declared ‘that nobody in future shall move war against his neighbours’ (again anti-feud), and that the king would review past remissions by his lieutenant.135 However, royal impartiality became an issue: in 1366 ‘the three communities’ insisted that justice should be done without favour, that judicial letters should not be revoked (as later in ‘The Harp’), and that ‘remissions … should be null and void’ unless compensation was accepted within a year.136 And in 1370, David had to prohibit remissions for homicides found by inquest to be by ‘murder or malice aforethought’, unless the general council gave approval; though he could still grant them for unpremeditated killing.137 Theoretically, that was a significant change. For William I, ‘murder and premeditated assault’ pertained ‘to my regality’, and so, by Robert I’s logic, the crown could grant remissions for them; but parliament was now attempting to restrict that regality. After Robert II succeeded David, the 1372 parliament developed the new rules, allegedly because of recent killings. Since justice ‘was not as fast as expedient’, in future a killer should be imprisoned while an immediate assize determined whether the homicide was ‘by forethought felony or murder, or from the heat of anger, namely chaudemella’. If the former, ‘justice is immediately to be done’; if the latter, ‘he will have the legitimate and due delays and defences’.138 Those who committed murder or forethought killing were 133 RPS, 1318/22. 134 RPS, 1318/5, 11. Note Scottish Formularies, E49 (pp. 74‒5): a brieve by which the king ‘following his statute issued dealing with such a case, remits his rancour’ for a killing found by inquest to be in self-defence. This, pace Duncan, can be associated with the 1318 legislation, c. 5. 135 RPS, 1357/11/12‒13. 136 Ibid., 1366/7/6, 13, my paraphrase of some problematic wording, which may have been mistranscribed: ‘remissions should be null and void, nec satifiat parti infra annum a data earundem, nisi forte manifeste steterit per illos quorum interest’. 137 Ibid., 1370/2/36: per murthyr vel per precogitatam maliciam. See also 1370/2/12, and Scottish Formularies, E14 (pp. 55‒6): a ‘brieve to the sheriff to hold an inquest into whether the bearer killed someone in a rage and not by murder or forethought felony’; this probably dates from the early 1370s, and certainly from before 1424. 138 RPS, 1372/3/6, and 7‒12; Sellar, ‘Forethocht felony’, 48‒9.

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now to be executed at once! The new rules were draconian – but exceptional, because they were to apply for just three years. And 1384 saw further lawand-order legislation. Unfortunately the homicide measures (again for three years) are lost; but the concept of forethought malice (precogitata malicia) was extended to mutilation, wounding and beating.139 The next recorded legislation was under Robert III: the 1397 ‘statute of Stirling’ addressing ‘great and horrible destructions … and slaughters’. No one was to ‘use destructions, slaughter, reif nor burning … under the pain of forfeiture of life and goods’, and for three years offenders identified by inquest had to give securities to appear at the next justice ayre; those who could not would be executed, and those who fled would be put ‘to the horn [outlawed] without remission’.140 The following year, ‘to repress transgressors more sternly’, all offenders were given just forty days ‘to stand to law’, or be outlawed;141 while in 1399, a further amendment put victims’ complaints to royal officers on the same footing as formal inquests, and the statute was extended for three more years.142 The later fourteenth-century acts demonstrate serious concern about law and order, echoing English and French measures.143 Also, they demonstrate consistent, thoughtful efforts by the political elite to make the system more effective, including (ideally) limiting remissions to unpremeditated offences. That, however (as noted above), restricted royal power and grace, and so had to be convincingly justified: hence the preambles highlighting awful lawlessness, which (as with modern equivalents) can be regarded as political propaganda depicting a collapse of law and order that had to be rectified.144 The most famous instance of such propaganda is, of course, Bower’s story of James I being told on his return to Scotland in 1424 about the ‘thieving, dishonest conduct and plundering’ in Scotland, and replying, ‘If God spares me I shall see to it that the key guards the castle and the thorn bushes the cow’.145 His first enactment in 1424 was ‘that firm and secure peace be … 139 RPS, 1384/11/1, 6‒17. A whole folio is clearly missing between the preamble to c. 6, and the middle of what is called c. 7: see notes to c. 6 and c. 7. The time limit is stated in c. 17, while c. 9 deals with mutilation and wounding by forethought, for which the process should proceed ‘as is ordained above concerning homicide’. Much of Robert II’s and Robert III’s parliamentary records are missing, and what survives is mostly in problematic copies: ibid., 1384/1/1, note. 140 Ibid., 1397/1‒2. 141 Ibid., 1398/9. 142 Ibid., 1399/1/14. 143 For these, see Sellar, ‘Forethocht felony’, 46‒6, 51‒2. 144 For an in-depth analysis of political propaganda relating to crime that is relevant here, see Claude Gauvard, ‘Fear of crime in late medieval France’, in Barbara A. Hanawalt and David Wallace (eds), Medieval Crime and Social Control (Minneapolis, MN, 1999), 1‒48: a translation of ‘De grâce especial’, chapter 5. 145 Chron. Bower (Watt), viii, 323. This theme is excellently explored in Michael Brown, ‘James I’, in Michael Brown and Roland Tanner (eds), Scottish Kingship, 1306‒1542:

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held among all and sundry lieges and subjects of our sovereign lord the king. And that no man … move or make war against another, under all pain that may follow by the course of common law’.146 That is nothing new, and in practice his only important innovation was to make his predecessors’ threeyear provisions permanent. But the lives of those guilty of forethought homicide were to be ‘at the king’s will’, so remissions were not forbidden: James had cancelled the 1370s’ restriction on royal grace.147 His other acts simply modified the 1370‒99 measures,148 and minor amendments are all that can be found under his successors.149 But in 1473 parliament exhorted James III ‘to close his hands for remissions and respites’;150 in 1477, because ‘the greatest reason’ for the frequency of slaughter ‘is the easy granting of the king’s grace in pardons’, forgiveness ‘for any kind of slaughter’ was suspended for the next three years;151 and there were three similar acts in 1484, 1485 and 1487.152 This is worse than the pressure on David II, and surely reflects a specific problem with James III (as probably reflected in ‘The Harp’) – which he may have justified in terms of royal power to ‘let live’ through acts of mercy.153 In contrast, under James IV – who has the best law-and-order reputation of any late medieval Scottish king – the legislation has no mention of (and hence concern about) remissions until 1504, when, because of ‘great slaughter … and the reasons for it in the assurance and belief of getting swift remissions’, he agreed to prohibit them ‘for slaughter committed as premeditated felony’ until it was decided otherwise.154 This parliament, however, was held

146 147 148 149 150 151

152 153

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Essays in Honour of Norman Macdougall (Edinburgh, 2008), 155‒78, at pp. 157‒64, and p. 175 for how James’ harsh administration of government, especially justice, backfired fatally in 1437. RPS, 1424/2a. Ibid., 1426/10. Compare RPS, 1424/5 with 1397/1; 1425/3/15 with 1397/2; 1426/10 with 1372/3/6, 1398/9 and 1399/1/4; 1432/3/2 with 1372/3/6; and 1432/3/6‒7 with 1398/10. Ibid., 1469/25; 1471/5/3; 1484/2/33; 1485/5/10; 1487/10/8‒9; 1488/1/22. Ibid., 1473/7/10. A respite was a conditional remission, limited to a number of years. Ibid., 1478/6/80: discussed (and redated) in Tanner, Late Medieval Scottish Parliament, 214‒15, along with a 1477 privy seal letter to the sheriff of Edinburgh ordering public proclamation that there would be no ‘respite or remission for slaughter committed of forethought felony’ – a narrower definition than in the statute. RPS, 1484/2/34; 1485/5/10; 1487/10/5. Tanner, Late Medieval Scottish Parliament, 215, 251, 254‒6; Norman Macdougall, James III (2nd edn, Edinburgh, 2009), 141‒2, and p. 274 for the story of how James, accompanied by the papal legate and Bishop Elphinstone, pardoned a condemned aristocratic murderer with the words ‘let mercy prevail’ – to Elphinstone’s approval. This apocryphal story may have been aimed against parliament’s disapproval of James’ remissions. For more on the story, see Alasdair A. MacDonald, ‘James III: Kingship and Contested Reputation’, Chapter 11 below in this volume. RPS, 1504/3/108; also, more briefly, 1504/3/25.

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in response to specific defiance from parts of the Highlands and the West, and both the preamble and the act (with its ban on mercy for deliberate killing) can be seen as political statements. That said, the act – which echoes criticisms of his father – has been seen as complaining about James using remissions to raise money.155 These were certainly lucrative: for instance in 1495 Hugh Rose of Kilravock and William Munro of Foulis (plus accomplices) paid £233 6s. 8d. and £80 respectively for remissions for killing Walter Gawane.156 But so long as the crown ensured that remissions did bring assythment and pacification (which James III probably did not do), then to view them chiefly from a fiscal standpoint is distorting. As with early medieval wergeld (or cró) and modern fines, the exaction of money was primarily punitive; royal remissions for serious crimes were not cheap, while the victim’s kin had to be compensated, too. More significantly, the act banned only remissions for homicide by forethought. The preamble suggests such killings were widespread, but is that correct? For James IV, the Privy Seal Register survives, and so all registered remissions can be studied – though here only a brief analysis is possible. In all, 581 remissions and temporary respites were registered. The breakdown of the most serious offence mentioned in each of them is: 249 remissions or respites for homicide; ninety-seven for forethought felony; 114 for defying the crown (mostly by rebelling, helping rebels and outlaws, refusing to serve in the army, and abusing sheriffs); fifty-four for reif or robbery (mostly of livestock); forty for arson, plunder and other ‘oppression’ (damage to property); five for rape; fourteen for theft; and eight for ‘theft-wise’ damaging the goods of the victim when lying with his wife (which must have meant stealing or damaging the husband’s sexual rights over his wife, thus making adultery criminal and entitling the husband to assythment). All the offences except theft and adultery usually involved violence and could be associated with feud, but here my focus is on homicide and forethought felony.157 It should be noted, however, that ‘forethought felony’ per se did not automatically indicate killing: its general usage shows it was a wider concept, applicable to any premeditated violence. That is demonstrated by the remission granted to Andrew, Thomas and John Hunter in September 1498, 155 E.g. by Norman Macdougall, James IV (Edinburgh, 1989), 164; Nicholson, Scotland, 570. 156 TA, i, 210. Two years later Rose received a remission for himself and eleven others, for the cruel killing of Gawane and three others in the chanonry at Fortrose: RSS, i, no. 166. It is unclear whether this was linked to the 1495 payment, or whether there was a new transaction because of the other three mortalities. 157 Found within RSS, i, pp. 1‒386, counting only the most serious offences recorded in each remission or respite (note that a single offence could generate several remissions, if several individuals were involved). Because of this methodology, my figures differ from those given in Nicholson, Scotland, 569, Macdougall, James IV, 164, and

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‘for the slaughter of the late (umquhile) Thomas Blackford, and for the forethought felony done upon the said Thomas, his wife, bairns and servants’:158 clearly Thomas, his wife, children and servants had suffered a premeditated attack, but only Thomas had been killed, perhaps by accident. More generally, when a person is said to have been killed, they are invariably described as ‘late’, which is never found in forethought remissions unless a killing is also recorded; and whereas with remissions for homicide all other offences are normally included as well, with remissions for forethought offences that are not said to involve a killing, homicide is always specifically excluded.159 As for the 249 instances of actual homicide, remarkably few killings are said to be forethought: only nine before the 1504 act, one in 1507 and two in 1510‒11.160 There were fifteen remissions for ‘cruel homicide’, presumably horrific or excessive wounding;161 and twenty-eight for homicide ‘by suddenty’ or the like, in most cases no doubt due to outbursts of rage162 – as with John Thowles’ remission for killing Alexander Meill ‘suddenly with a blow from a staff, namely a golf club’.163 However, the form of homicide is not categorised in the other 194 instances. Some, like the killing of a child ‘by the cast of a stone at a dog’,164 would have been accidental. But a broader explanation can be suggested. Since the 1370s there had been formal inquests into whether X killed Y ‘by forethought felony or not’.165 Any homicides not clearly caused by accident or rage should have been investigated, and those that inquests found not to be by forethought were probably recorded simply as homicide,166 with no qualification (no doubt including many cases of self-defence, which

158 159

160 161 162 163 164 165 166

Leslie J. Macfarlane, William Elphinstone and the Kingdom of Scotland, 1431‒1514 (Aberdeen, 1985), 411‒12, 436 (in which, incidentally, reif and theft seem to have been merged). A full-scale analysis of the material is planned by Cynthia Neville; see above, note 127. RSS, i, no. 251. Nicholson, Macdougall and Macfarlane do not mention this important point with respect to their remission analyses. But, more significantly, Armstrong, ‘Justice ayre’, 26‒9, counts all mentions of forethought felony as homicide, which, unfortunately, seriously distorts that part of his analysis and argument. For the 1384 legislation, RPS, 1384/11/9, and above, p. 216. RRS, i, nos 16, 106, 109, 163, 251, 307, 412, 690, 825, 1410, 1991, 2193. The 1504 act was probably cancelled in the 1509 parliament, most of the legislation of which is lost: Macdougall, James IV, 190‒1. RRS, i, nos 117, 127, 166, 412, 584, 676, 718‒20, 918, 1410, 1572, 1980, 2204, 2259. Ibid., nos 66, 288, 325, 421, 489, 522, 610, 679, 680, 696, 764, 803, 840, 929, 1123, 1181, 1296, 1547, 1581, 1595, 1617, 1697, 1726, 1746, 1802, 1992, 2004, 2194 (including a few deaths caused by ‘negligence’). ‘… pro interfectione quondam Alexandri Meill ex subito per ictum baculi, viz golf club, commissa’: ibid., no. 1547. Ibid., no. 85. Above, p. 215. I.e. the ‘simple homicide’ of Regiam Majestatem: below, p. 222.

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the remissions never mention). In addition, the well-known propensity of medieval juries to favour the defendant would also help to explain why forethought verdicts were so scarce.167 Furthermore, it was probably easy and safe to commit non-forethought homicide deliberately. Consider late medieval Scotland’s two most notorious killings. When James II summoned the eighth earl of Douglas to Stirling in February 1452, did he seriously expect him to break the Douglas–Crawford– Ross bond? According to the ‘Auchinleck Chronicle’, when Douglas said (probably vehemently and certainly insultingly) ‘he might not nor would not’, James called him ‘false traitor’ and ‘leapt suddenly to him with a knife’. James must have expected that outcome – but technically it was excusable homicide ‘by suddenty’, though Douglas’ brother understandably called it foul slaughter.168 Similarly, when in February 1306 Robert Bruce set out for his fateful meeting with John Comyn in the Greyfriars church, Dumfries, did he seriously believe that they would reach an amicable agreement? I think not, and suggest that he anticipated and quite probably engineered a hotblooded quarrel in which Comyn could be killed without overt premeditation.169 Irrespective of whether that is correct in these cases, the main point is that by creating a situation in which a hot-blooded quarrel was inevitable, an enemy could be killed without committing forethought felony. Also, when rival lords’ followings encountered each other, tensions could easily escalate into lethal violence, as Romeo and Juliet illustrates, and as at Monzievaird in 1489, when a long-running quarrel flared up and led to Drummonds setting the local church on fire with twenty Murrays inside. On the other hand, following this atrocity powerful state action was taken, not so much by the young James IV as by his council.170 This illustrates the same collective desire to maintain order as in the parliamentary legislation: the collective-versus-individual pressures promoting ‘peace in the feud’ were operating within ‘the justice of the state’. And eleven years later, ‘for heartliness … amongst them’, the Drummond and Murray lords received royal letters ‘remitting to their kin and friends … all actions and crimes of the 167 Also, in 18 instances remissions were granted to men who had been ‘put to the horn’ or had fled to England, in which case formal inquests were presumably unnecessary: RSS, i, nos 37, 69, 86, 90, 104, 108, 110, 113, 117, 375, 665, 696, 1301, 1331, 1361, 1414, 1578, 1597. 168 Christine McGladdery, James II (Edinburgh, 1990), 165; now best discussed in Christine McGladdery, ‘James II (1437‒1460)’, in Brown and Tanner (eds), Scottish Kingship, 179‒208, at pp. 191‒5. However, pace McGladdery, James II, 66‒70, this was not murder in the contemporary sense; see below, after pp. 222‒4. For the aftermath of the killing, see Michael Brown, ‘The Lanark Bond’, Chapter 10 below in this volume. 169 Alexander Grant, ‘The death of John Comyn: what was going on?’, SHR 86 (2007), 176‒224. 170 Macdougall, James IV, 83‒4; Boardman, ‘Politics and the Feud’, 288‒300.

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burning of the kirk of Monzievaird and slaughter of the king’s lieges’.171 Pacification of feud was always the ideal, and from the crown’s standpoint the remission system was as important for achieving it as the formal ‘justice of the state’. That said, aristocratic feuding is not very visible in the privy seal register. Only twenty-four remissions or respites for homicide went to certain or probable members of the landed classes. Cuthbert Cunningham, earl of Glencairn is the greatest, but his remissions in 1508 for non-lethal forethought violence and in 1511 for killing Andrew McFarlane in Bute are not obviously connected to his long-running feud with the earl of Eglinton.172 Other leading figures who had homicide remissions or respites included William Gordon, son of the earl of Huntly; Archibald Ogilvie, son of Lord Airlie; David Home of Wedderburn; Hugh Rose of Kilravock; Patrick Dunbar, son of the lord of Kilconquhar; William, son of Matthew Wallace of Craigie; and Andrew Blackadder of that ilk, who killed two men and wounded three ‘near the king’s palace while the king was in residence’.173 But the list is short, and most of the other twenty-four are only minor lairds. Twenty-four is just under a tenth of the total: higher, surely, than the landed classes’ share of the population, but roughly the same proportion as Gauvard found in France.174 Also, hardly anyone received remissions for more than one killing, and there is only one instance (discussed below) of a killer being killed himself.175 The James IV remissions and respites, in other words, give virtually no evidence of the chains of tit-for-tat homicide that are usually associated with feuds. That may simply be a function of the way the documents were written; had they included the killers’ narratives, the conclusion might be different. But the absence of tit-for-tat killing is also a feature (though not quite so extreme) of the French remissions. As said already, Gauvard attributed that to a crown policy of accepting that it could not prevent fatal quarrels from breaking out in all ranks of society – but that it could, through giving letters of remission to the killers so long as the victims’ families were compensated, significantly reduce the likelihood of long-term 171 RSS, i, no. 843. 172 Ibid., nos 360, 2323. Also in 1511, he obtained remissions for homicide by some of his men, and for his son who had sheltered outlaws: ibid., nos 2212, 2225, 2324. For the feud, Macdougall, James IV, 93‒6, 101, 152‒4, 187‒8; Boardman, ‘Politics and the Feud’, 171‒7, 261‒88. 173 RSS, i, nos 72 (Ogilvie), 166 (Rose), 227 (Dunbar), 412 (Blackadder), 428 (Gordon), 654 (Home), 949 (Wallace). In addition to obvious figures like these I have counted anyone who was described as ‘of ’ a territory. The other references are ibid., nos 35, 39, 83, 223, 351, 371, 427, 461, 625, 721, 775, 1561, 1578, 1644, 1969, 2183. 174 She gives 6 per cent overall, but also shows that the proportion of homicides committed by nobles and esquires was much higher than for other crimes: Gauvard, ‘De grâce especial’, 74, 528‒36. 175 Below, note 178.

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feud, such as is found in Albania.176 The evidence of the Scottish remissions in James IV’s privy seal register, although a much smaller sample, indicates exactly the same conclusion – which puts Scotland beside France on Wormald’s spectrum. Killing in quarrels was part of human nature, and late medieval Scotland’s state machinery could not prevent it; but in normal circumstances the state could stifle most potential feuds, and limit the duration of those that did break out. It did so, essentially, through the use of remissions – which could be described as harnessing the justice of the feud to serve the justice of the state.

III However, there is a final point. Nowadays, under Scots law, all the forethought killings and many of the others would be murder.177 One of James IV’s remissions and respites for forethought killing is actually for murder: ‘A respite to Patrick McCulloch, for … the murder and slaughter of the late Archibald McCulloch of Ardwell, committed … upon forethought felony, under silence of night’.178 The ‘silence of night’ makes it different, in accordance with the definitions in late medieval Scotland’s main legal text, Regiam Majestatem: ‘There are two kinds of homicide. The first is murder, which is homicide secretly perpetrated without the knowledge of anyone except the assailant and his accomplices … The second kind of homicide is called simple homicide’.179 Thus secrecy is the issue – which includes killing at night. That is not just Scottish: ‘as is well known, the word “murder” is cognate with Germanic “mord” and Scandinavian “morð” signifying a secret killing’.180 Regiam Majestatem was copying the twelfth-century English text, 176 Above, pp. 198, 206. 177 ‘The classic definition of murder [is] “any wilful act causing the destruction of life, whether intended to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be [intended]”’: Sellar, ‘Forethocht felony’, 44, quoting John Hay Macdonald, A Practical Treatise on the Criminal Law of Scotland (5th edn, Edinburgh, 1948), 89. 178 RSS, i, no. 163, dated 17 November 1497: one of the few instances of killing within a single kin. But Patrick did not survive for long: by 2 June 1498 he had been killed, for which his killers got respite and eventually a full remission: ibid., nos 227, 1561. This is the only mention in the register of the killer himself being killed. 179 Regiam Majestatem and Quoniam Attachiamenta, ed. and trans. T. M. Cooper (Stair Society, 1947), 253‒4. 180 Sellar, ‘Forethocht felony’, 47; see also Taylor, ‘Crime without punishment’, esp. 295. But ‘secret killing’ is too narrow a definition: in Anglo-Saxon England ‘it referred … to particularly dishonourable killings, perhaps involving secrecy in some form or even an attempt to hide the victim’s body’ (Lambert, ‘Theft, homicide and crime’); and OED, s.v. ‘murder’: ‘In old English the word could be applied to any homicide

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‘Glanvill’,181 while Philippe de Beaumanoir’s later thirteenth-century Coutumes state that ‘murder is when anyone kills anyone else or has them killed by premeditation between sunset and sunrise, or under truce or assurance’. All three contrast murder and homicide; but with Regiam and ‘Glanvill’ the distinction is obviously between secret and open killing; while for Beaumanoir homicide is simply killing in hot blood (chaude mellee), which blurs the issue.182 But by Beaumanoir’s time, ‘premeditated malice’ and ‘wrath’ were being distinguished in England, too, and in the fourteenth century premeditation eventually came into a statute of 1390 forbidding pardons ‘for murder [and] homicide occasioned by … malice aforethought’.183 Similarly but earlier, a French ordinance of 1356 banned royal remissions for ‘murders and mutilations made by premeditation and evil will’.184 These straddle the Scottish acts of 1370 and 1372, which also restricted remissions, and made a distinction between murder and forethought felony on the one hand and (echoing Beaumanoir) chaudmella or hot-blooded killing on the other.185 Legal minds in all three countries were working in the same direction. In fifteenth-century France and England, however, the term ‘murder’ became more general, encompassing premeditated killing just as nowadays.186 Scottish fifteenth-century legislation shows a similar blurring, but in the opposite direction: from James I on, the acts mention only ‘forethought felony’ and ‘sudden chaudmella’, dropping murder. That might support Sellar’s argument about murder being incorporated within forethought felony in the 1370s – and it could be regarded as a sub-category of the latter in Patrick McCulloch’s respite. On the other hand, as we have seen, forethought felony involved more than killing, while murder, because it was committed at night, was still distinct from slaughter. Moreover, the Border ayres studied

181 182 183

184 185 186

that was strongly reprobated … more strictly, however, it denoted secret murder’. It is best, therefore, to regard it as an outrageous, essentially unpardonable crime – of which secret killing was the typical example. Tractatus de legibus et consuetudinibus regni Anglie qui Glanvill vocatur, ed. G. D. G. Hall (London, 1965), 174‒6 (xiv, c. 3). Philippe de Beaumanoir, Coutumes de Beauvaisis, 2 vols, ed. Amédée Salmon (Paris, 1899‒1900), i, nos 825, 828. F. W. Maitland, ‘The early history of malice aforethought’, in his Collected Papers, 3 vols, ed. H. A. L. Fisher (Cambridge, 1911), i, 304‒28, at pp. 307‒9 for a case in 1270; T. A. Green, ‘The jury and the English law of homicide’, Michigan Law Review 74 (1975‒6), 413‒72, at pp. 457‒72; ‘Richard II: 1390, January’, ed. Chris GivenWilson, in The Parliament Rolls of Medieval England, 16 vols, eds Chris GivenWilson et al. (Woodbridge, 2005), vii, 127‒90, at p. 155 (c. 36). Ordonnances des Roys de France de la Troisième Race, vol. III (Paris, 1732), 128‒9. Above, pp. 215‒16. I read the 1370 and 1372 acts differently from Sellar, ‘Forethocht felony’, 47. Gauvard, ‘De grâce especial’, 798‒806; Green, ‘Jury and law of homicide’, 469‒72.

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by Armstrong had a case of ‘forethought felony by means of murder’ and another of ‘murder [and] killing’ – ‘both suggestive of secret killing, one with premeditation, the other without’.187 Thus I would argue that in Scotland the concept of murder retained its special restricted meaning at least until the end of the fifteenth century – and perhaps beyond, given the definition in Skene’s De Verborum Significatione of 1597: MURTHURUM, whereof of some is called private, that is manslaughter, whereof the author is unknown, whereof the inquisition belongs to the crowner; as where a person is found slain, or drowned, in any place or water. Other is public committed by forethought felony. And murder is committed by forethought felony and not by suddenty.188

Skene was following Regiam Majestatem, but glossing it for his own time; and while murder comes under forethought felony, it is still non-public, with unknown perpetrators – in other words, secret. In a sense, that concept of murder survives today, in crime fiction: there would be no detective novels if all killings were public! Not knowing ‘whodunnit’, was, of course, crucial in the worst of Scotland’s political killings, that of Henry Stewart Lord Darnley, the king-consort – which was certainly murder.189 And in ordinary life there were no doubt many occasions when a body was found, and the questions had to be asked: had the deceased been killed, was the killing deliberate, and who was responsible? But in the past, if there was a suspect, one popular solution was the process of ‘cruentation’: he was brought before the corpse, which, it was believed, would bleed or speak out if touched by its murderer. An echo of this is found in the case of Sir James Standsfield, who was found dead, apparently drowned, in winter 1687‒8; because his son would not let the body be viewed, he became suspect, and was eventually tried for murder.190 Earlier, the practice had been common in both Britain and France:191 so, whatever the legal terminology, ‘secret’ killing was different and special. The most famous illustration of that is in Chaucer’s ‘Nun’s Priest’s Tale’: two friends stayed in a tavern, and one dreamed that the other was being murdered; next morning, when told his friend had left, he remembered the dream and found the body: ‘murder will out’.192 187 Armstrong, ‘Justice ayre’, 27. 188 Sir John Skene, De Verborum Significatione (Edinburgh, 1597), s.v. 189 For events following this murder see Julian Goodare, ‘The Ainslie Bond’, Chapter 14 below in this volume. 190 R. A. Houston, The Coroners of Northern Britain, c. 1300‒1700 (Basingstoke, 2014), 23. 191 Malcolm Gaskill, ‘Reporting murder: fiction in the archives in early modern England’, Social History 23 (1998), 1‒30; Gauvard, ‘De grâce especial’, 179‒89. 192 Geoffrey Chaucer, ‘The Nun’s Priest’s Tale’, in The Riverside Chaucer, ed. Larry D. Benson (3rd edn, Oxford, 1988), 253‒61, at pp. 255‒6 (lines 2984‒3063).

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In addition to obvious shock, two factors surely made secret killing so awful. First, whereas open revenge killing would be presented and understood in terms of honourable reaction to insult or the like, a secret killer was a dishonourable coward. And, even worse, his victim’s kin would find it hard to achieve closure through either compensation or revenge – and they might even attack the wrong person in trying. Consequently, the secret killer was deliberately rejecting his society’s pacification mechanisms. Thus when, according to Bower, Roger Kirkpatrick was killed by his guest Sir James Lindsay after ‘the wine had been pleasurably drained’, and Lindsay then fled on horseback but did not cover more than three miles, we might blame alcohol and think that peace could still be made. Instead, Bower relates, David II immediately held an assize, which put Lindsay to death – as much, it seems, for running away (under cover of night) as for the actual deed, which though presumably hot-blooded was turned into murder.193 Now, as David II’s role in this case indicates, if secret killing negated feud justice, then the justice of the state had to step in. Moreover, that does not apply just to secret killing: for instance, if the head of a kin was killed by members of his kindred, that could hardly be dealt with through the justice of the feud. Thus when, in 1289, Duncan, earl of Fife was ambushed and killed in broad daylight at the instigation of a leading member of the Fife kindred, Sir Hugh Abernethy, it was the royal justiciar Sir Andrew Murray who pursued and caught Abernethy and one of the actual killers.194 And Fife provides an even more significant illustration of the point, the ‘Law of Clan MacDuff ’:195 if one of the Fife kindred committed a killing anywhere in the kingdom and then fled to ‘the cross of Clan Macduff ’ (near Newburgh, in 193 Chron. Wyntoun (Laing), ii, 500‒1; Chron. Bower (Watt), vii, 309. Also, Bower tells us that Lindsay and Kirkpatrick were both sons of men who helped Robert Bruce kill John Comyn, and that the sons were being punished for the sins of the fathers (p. 311). 194 The killer, Sir Walter Percy (a minor Fife landowner), was summarily executed, while Hugh Abernethy was imprisoned for the rest of his life. The other actual killer, Patrick Abernethy (possibly Hugh’s eldest son), escaped to France and died in exile. Chron. Bower (Watt), vi, 33, 207‒8; Michael Brown, ‘Aristocratic politics and the crisis of Scottish kingship, 1286‒96’, SHR 90 (2011), 1‒26, at pp. 5‒9. 195 On this, see Skene, De Verborum Significatione, s.v. clan-makduf; Chron. Wyntoun (Laing), ii, 140‒1; A. D. M. Forte, “‘A strange archaic provision of mercy”: the procedural rules for the duellum under the Law of Clann Duib’, Edinburgh Law Review 14 (2010), 418‒50, at pp. 421‒4; Alexander Grant, ‘Franchises north of the Border: baronies and regalities in medieval Scotland’, in Michael Prestwich (ed.), Liberties and Identities in the Medieval British Isles (Woodbridge, 2008), 115‒99, at pp. 181‒2; John Bannerman, ‘MacDuff of Fife’, in Alexander Grant and Keith J. Stringer (eds), Medieval Scotland: Crown, Lordship and Community: Essays presented to G. W. S. Barrow (Edinburgh, 1993), 20‒38.

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north-west Fife), the earl would protect him from revenge and set the assythment. That this was a special privilege is shown by the fact that the new law-and-order legislation of 1384 included Robert, earl of Fife’s consent, ‘as head of the law of Clan MacDuff ’, to its temporary suspension.196 But such a privilege could have been granted only by a king; and, given its archaic nature, there seems little reason to doubt Wyntoun’s connection of it with the earls of Fife’s other privilege of enthroning new kings, which surely dates from the eleventh century. Consequently, the ‘Law of Clan MacDuff ’ reflects the modification of the traditional justice of the feud by means of what could be regarded as an act of state by one of the Celtic kings of Alba. However, these points should not be seen as suggesting that the king’s (or state’s) justice was taking over from that of the kin. In the medieval world’s main model for government, the Old Testament, the Jewish people were all descended from Abraham, whose lineage went through King David to Jesus Christ. David and his successors were thus heads of the Jewish kindred – as were Cerdic and his descendants for the Saxons, and so on. For Alba and Scotland, Dauvit Broun and others have shown, ‘the Pictish antecedents of Scottish kingship are … proclaimed in the eleventh-century text Lebor Bretnach’, which includes the legend of Cruithne (Pict) and his seven sons who took ‘the north of the island of Britain’. Each son in turn succeeded Cruithne – and their names correspond to seven provinces, each theoretically inhabited by the descendants of one of the sons. The story was probably created in the eighth century, and survived into the twelfth and beyond.197 Its message, of course, was that all the people of all the provinces of Alba descended from Cruithne – so that Cruithne’s successor as king was head of the kin of the whole of Alba and later Scotland. Therefore, if the justice of the state was the justice of the king, that made it the justice of the overall head of the entire Scottish kindred. And from that conceptual standpoint, the king’s justice could not be distinguished from the kin’s justice. My final reflection on Wormald’s bloodfeud and the interaction between the justice of the feud and the justice of the state, therefore, is that there is no dichotomy between them: they are interlinked aspects of the same whole.198

196 RPS, 1384/11/12, and above, pp. 215‒16. 197 Dauvit Broun, Scottish Independence and the Idea of Britain: From the Picts to Alexander III (Edinburgh, 2007), 55‒7, 76‒80. 198 My warmest thanks to Dauvit Broun, Stuart Carroll, Rab Houston, Alison Grant, Hector MacQueen, Cynthia Neville, Alex Metcalfe, David Sellar and Alice Taylor for their invaluable help and advice; to Steve Boardman and Julian Goodare for their patience as well; and of course more generally to Jenny Wormald, for all her support, encouragement and constructive chivvying over more than 40 years – and for forgiving my question in our very first conversation: ‘what were bonds of manrent, and why do they matter’?

chapter 10

The Lanark Bond MICHAEL BROWN Through her seminal study of bonding, Lords and Men in Scotland, Jenny Wormald placed the character and use of private agreements at the heart of the study of Scottish politics and society in the fifteenth and sixteenth centuries. She demonstrated that the ‘rise of the personal bond’ was the key to understanding lordship, service and society. The development of these written contracts reflected the absence of a ‘strong, central system’ in Scotland.1 She rightly re-interpreted the reliance on private arrangements – traditionally regarded by historians and lawyers as a mark of weakness and backwardness – as the mark of a polity capable of effective self-regulation. While Steve Boardman has argued via a number of fifteenth-century case studies that the formation of bonds was often a direct result of violent feuding between parties rather than primarily an expression of less fraught relationships, Wormald’s conclusions about the importance of such contractual agreements as a key component of Scottish political and social interaction have been accepted.2 Less central to Wormald’s argument was the way in which the use of similar, essentially private agreements characterised the exercise of government and political power at the highest levels in fifteenth-century Scotland. One of the most unusual entries in the lists of bonds that she assembled in the appendices to Lords and Men was the first of her ‘royal bonds’. This was dated 16 January 1453 at Lanark and contained a promise by James, ninth and last earl of Douglas to deliver his manrent and service to King James II.3 Only one other bond was listed by Wormald as being given to an adult king (also to James II by the minor borders landowner, James Tweedie of Drumelzier, in 1455). However, rather than a virtually unique example of the use of such bonds by an adult ruler, this ‘Lanark bond’ needs to be understood in the context of approaches to royal government which, in certain conditions, could employ the methods and language of private agreements. 11 Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985), 39‒41. 12 Stephen I. Boardman, ‘Politics and the Feud in Late Medieval Scotland’, unpublished PhD thesis (University of St Andrews, 1990). 13 Wormald, Lords and Men, 359 (Royal bonds, nos 1‒2).

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Just a few months earlier, in late August 1452, there had been ‘ane appoyntement’ between the same two figures, the king and the earl of Douglas, issued from Douglas Castle in Lanarkshire. These two agreements have been recognised as laying out terms to resolve the conflict that had begun with the king’s killing of the earl’s elder brother, William, earl of Douglas, in February 1452. However, limited attention has been paid to the precise terms of these agreements and how they were expected to operate. The tendency has been instead to regard them as a brief hiatus in tensions that had developed between the king and the Douglas earls, which ended with the defeat and expulsion of Earl James in a renewed conflict during 1455.4 This has left unanswered questions about the Lanark bond and its predecessor the ‘appoyntement’ concerning the relationship between them, the intentions behind them and their impact on the political life of the kingdom in the two years between January 1453 and the outbreak of the final period of fighting. More broadly, the use of written agreements to produce a negotiated settlement between the king and an aristocratic subject raises issues about the nature of royal authority in Scotland and the political character of the realm and polity in a period often seen as witnessing the growth of the physical and ideological resources of the crown.

I Although it has been referred to in all accounts of the period, the Lanark bond itself has been misunderstood as a text. It was printed in the eighteenth century in connection with the Sutherland peerage case, but the terms of the bond have frequently been misquoted.5 The earliest texts of both the Lanark bond and the ‘appoyntement’ are found in the notebooks and genealogical collections compiled by Sir Lewis Stewart of Kirkhill in the early seventeenth century and now held in the National Library of Scotland.6 Stewart was a noted advocate and antiquarian who received his knighthood from Charles I for investigating the claims of William Graham, earl of Menteith to the 14 For accounts of these events see Christine McGladdery, James II (Edinburgh, 1990), 62‒83; Annie I. Dunlop, The Life and Times of James Kennedy Bishop of St Andrews (Edinburgh, 1950), 133‒45; Ranald Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), 358‒71; Michael Brown, The Black Douglases: War and Lordship in Late Medieval Scotland, 1300‒1455 (East Linton, 1998), 291‒305. 15 The Additional Case of Elisabeth claiming the Title and Dignity of Countess of Sutherland, 1771 (London, 1830), appendix x, 29. In particular, the bond has been said to include permission for James Douglas to marry his brother’s widow (and cousin), Margaret Douglas, lady of Galloway. This misunderstanding arose from a misreading of Sir William Fraser’s description in Fraser, Douglas Book, i, 483‒4. 16 NLS, Adv. MSS 34.3.11, 34.3.12, 22.1.14. The ‘appoyntement’ was printed in P. F. Tytler, A History of Scotland, 9 vols (Edinburgh, 1828‒43), ii, 386‒7.

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earldom of Strathearn in 1632.7 His collections contain a wide range of materials that seem to have been transcribed accurately, while there is nothing to suggest that Stewart was a forger of ‘lost’ documents.8 Though the Lanark bond was misdated and misidentified in its title as a ‘Bond be James Earle of Douglas to Rob. 3 1402’, amended in another hand in NLS Advocates’ Manuscript 22.1.14 to ‘James ii’ and ‘1452’, the texts can be confidently regarded as representing the terms of the original agreements from 1452 to 1453. The text of the Lanark Bond is printed as an Appendix below. It is fitting that Stewart copied both the August 1452 ‘appoyntement’ and the subsequent Lanark bond, as the two texts can only be understood in conjunction. Both take the form of letters written in the name of James, earl of Douglas, whose terms represent those agreed by the earl with the king. As has been mentioned above, they followed a period of major conflict that had lasted much of the previous year. This had begun with the rebellion of John, earl of Ross and lord of the Isles in late 1451, and also involved fighting between the earls of Huntly and Crawford in the north-east.9 The refusal of William, earl of Douglas to sever his family’s obligations to Ross and Crawford and aid the young James II against these magnates was identified in a contemporary chronicle as sparking the king’s personal assault on Earl William in Stirling Castle in February 1452. The killing of the earl led to a period of open civil war, which lasted until August. The Douglas family and their supporters burned Stirling and renounced their fealty to the king in March, and in June negotiated with the English government about entering the allegiance of King Henry VI of England. James was forced to secure parliamentary exoneration for the earl’s death in June, before mustering an army, which he led on a full campaign through the earl of Douglas’ southern Scottish lands in July.10 These events threatened the stability of much of the kingdom and were the most serious political crisis for forty years.

17 J. M. Sanderson, ‘Two Stewarts of the sixteenth century: Mr William Stewart, poet, and William Stewart, elder, depute-clerk of Edinburgh’, The Stewarts 17:1 (1984), 25‒46, at p. 38. Lewis Stewart also purchased the Coupar Angus MS of Scotichronicon (NLS, Adv. MS 35.1.7); for details of this manuscript see Chron. Bower (Watt), ix, 193‒5. 18 Also included in the notebooks are charters by Robert I and David II to James and William, lord of Douglas, the statute of Cambuskenneth, the tailzies of 1315 and 1318 and the indenture of 1483 between James III and Alexander, duke of Albany, whose texts correspond to other versions. 19 Alexander Grant, ‘The revolt of the Lord of the Isles and the death of the earl of Douglas’, SHR 57 (1978), 169‒74. 10 Brown, Black Douglases, 293‒9. The best, indeed only contemporary, Scottish narrative of these events is the ‘Auchinleck Chronicle’; see McGladdery, James II, appendix 2.

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II The timing and terms of the ‘appoyntement’ were designed to provide some kind of resolution following these months of confrontation. The clauses of the document contain direct responses to the grievances of Earl James. Most obviously the earl agreed: to remit and forgive … all maner of rancour of heart, malic, fede, malgre and invy … to all them that had arte or parte of the slauchter or deid of whylum William Earle of Douglas … and shall take thay personnes in heartlines and friendship at the ordinance and advice of our said soverayne lord.

In similar vein, Douglas forgave the king for all damages done to his lands during the preceding months (up until 22 July). To further satisfy the king, Douglas agreed to revoke all leagues and bands ‘contrare to our said soverayne lord’, and to allow his tenants and those renting lands from him to hold their lands undisturbed for the next twenty months. The earl bound himself to defend the borders and keep all truces as warden. However, it is significant that the first item in the ‘appoyntement’ was a promise that Douglas would not ‘persew … by law or any other maner of way, any entrie in the lands of the earledome of Wigtone’, followed by a similar statement concerning ‘the lordschipe of Stewartoun’, until the agreement of the queen was secured.11 The Lanark bond began with the same issue. Now, however, James, earl of Douglas held letters promising ‘to gif me lawful entrie and possession unto the erldome of Wigtoun and landis of Stewartoun’ before Easter. In return, as soon as he received the lands, Douglas swore on the gospels that at the next general council, either in person or by procurators, he would present letters ‘under my seal and subscription of my body bind to my said soveragne lord my manrent and my service in the best and most sure forme … for all the dayes of my lyf ’. This involved promises to reveal any harm planned against the king, once more to renounce any bonds ‘contrair’ his ‘sov lord’ and ‘that I sall be with him at all my power and tak part with him formaly againe al his enemies and rebellis beand within his realme at all tymes’. Amplifying the ‘appoyntement’, Douglas also agreed to observe the king’s relations with England, ‘in tyme of peace keipe all trewis within his boundes belaingand me And in tyme of war defend thame as esseurily’. Finally, the earl promised ‘to assist to my soveragne lord with all my poure in ye re-syneing of his heritage, rentis or possessions disponit or annalied fra the croune’, saving those granted by James II to the late Earl William.12 The exact meaning of the two documents and the relationship between them are clearly not straightforward matters. However in their character and terms they can be related to a range of other similar documents produced in 11 Tytler, History of Scotland, ii, 386‒7. 12 NLS, Adv. MS 22.1.14, fo. 163v.

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Scotland during the fifteenth century. There is plentiful evidence of the way in which private agreements could be employed to resolve periods of armed conflict. The term ‘appoyntement’ may have had a specific meaning as a document designed to reconcile opponents. An earlier ‘appoyntement’, made in 1439 between Alexander Forbes and Robert Erskine, sought ‘to reform al wnkindnes wrangkis and iniuriis’ between them.13 Though not overtly linked to such a settlement, the bond of manrent made by James Forbes (Alexander’s son) and the lord of Gordon in 1444 also followed a period of dispute between their families. Like the Lanark bond, Forbes’ action was linked to the receipt of a grant of land from Gordon, another common element of such arrangements.14 The direct relationship between the settling of feuds or disputes and the making of bonds becomes increasingly evident in the number of examples during the later fifteenth century. Steve Boardman identified numerous cases of this, for example the 1476 bond between the thane of Cawdor and Hugh Rose of Kilravock following ‘slauchteris, debattis, injuris ande contraverssis, that haf beyne betwixt thame’, in which Rose was adopted as son to the thane.15 Perhaps the earliest extant example of this kind of arrangement involved two figures whose standing and resources made them comparable to James II and Earl James in 1452‒3. In 1409 the earl’s great-uncle, Archibald, fourth earl of Douglas and the king’s great-uncle, Robert, duke of Albany produced an indenture that was designed to settle disputes between them and their men following a period of tension between the two magnates; the settlement was followed by a series of land transactions and the marriage of Albany’s son to Douglas’ daughter.16 As Wormald argued, the 1409 bond revolved around efforts for the ‘maintenance of order’ through ‘private arbitration’ as an adjunct to the judicial system.17 However, its function was coloured by the identity of the participants. Albany and Douglas may have been two of the greatest private lords in Scotland, but they also represented the authority of the crown in much of the realm. Albany was governor of Scotland. Douglas was justiciar south of Forth and warden of the Marches with England. The two men were responsible for holding courts and enforcing justice, but relied on a personal contract between them to shape their relations and activities. This indenture must be regarded as having a direct influence on the government of the Scottish 13 14 15 16

AB Ill., iv, 189. AB Ill., iv, 340‒1, 395‒6. Boardman, ‘Politics and the Feud’, 72‒5. Sir William Fraser (ed.), The Red Book of Menteith, 2 vols (Edinburgh, 1880), ii, 277‒80; Stephen I. Boardman, The Early Stewart Kings: Robert II and Robert III, 1371‒1406 (East Linton, 1996), 306‒12; Brown, The Black Douglases, 111; Karen Hunt, ‘The Governorship of the First Duke of Albany’, unpublished PhD thesis (University of Edinburgh, 1999), 23‒70. 17 Wormald, Lords and Men, 39‒41.

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realm. In this respect it was not an isolated example. Between the Albany– Douglas bond in 1409 and the agreements between James II and Earl James in 1452‒3 there were a number of individual contracts through which royal governments regulated their relations with their subjects. Some of these framed the powers and responsibilities of royal officials. In 1420 Alexander, earl of Mar entered an indenture with Murdoch, duke of Albany, Robert’s son and successor as governor of Scotland. This linked Mar’s position as lieutenant of northern Scotland to his becoming ‘man of speciale feale and retinue til the foresaid duke of Albany’. In return Duke Murdoch gave Mar ‘his lettres baunde and seille’, promising ‘maintinance helpe and suppleie’. The language and instruments of bonding were clearly being applied to the delegation of royal justice, and of the power to collect revenues, by the governor to a lieutenant.18 It is possible that a similar arrangement was sought in the late 1430s. The appointment of Alexander, lord of the Isles and earl of Ross as justiciar in 1438 followed a meeting on Bute between him and the lieutenant for the young James II, Archibald, fifth earl of Douglas. It would be plausible to think that the Bute discussions were concluded with a bond similar to that between Albany and Mar linking office-holding with a personal promise of ‘feale and retinue’ by Alexander to the lieutenant.19 This would certainly fit in with the use of written agreements in a number of contexts by the minority regimes ruling for James II between 1437 and 1449. Such agreements could relate to disputes over custody of the king. In 1439 another ‘appoyntement’ was made. This one involved James’ mother, Queen Joan Beaufort, and Alexander Livingston of Callendar, keeper of Stirling Castle, and a group of his friends and family. The queen agreed to the terms almost certainly to secure her release from Livingston’s custody.20 She was forced to accept that her captors’ action was made from ‘good zeal’ and ‘loyalty’, and not intended as ‘harm or slander’ to her person. The queen also remitted any ‘grief or displeasure’ against Livingston and his friends on her behalf and that of ‘her men and retinue’. The key to the agreement was, however, Queen Joan’s surrender of her son, the young James II, into Livingston’s custody along with the 4,000mark annuity she received for the king’s upkeep. Such terms indicate clear similarities between this agreement and the later ‘appoyntement’ of 1452, which also centred on the forgiveness of past deeds as part of a political settlement. The limited authority of subsequent conciliar regimes prompted the making of written agreements with individual lords on at least two other 18 Fraser, Menteith, ii, 261‒2; Wormald, Lords and Men, 46; Michael Brown, ‘Regional lordship in north-east Scotland: the Badenoch Stewarts, ii, Alexander Stewart Earl of Mar’, Northern Scotland 16 (1996), 31‒53. 19 ER, v, 84, 86, 116. 20 RPS, 1439/9/1; McGladdery, James II, 18‒19; Brown, Black Douglases, 257‒8.

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occasions. In August 1440 an enlarged royal council of thirty-one named individuals made an ‘amicable composicioun’ with Robert Erskine. This secured the surrender of Dumbarton Castle by Erskine by conceding his right to Kildrummy Castle and the earldom of Mar until James II came of age, indicating the limited ability of James II’s government to dispose of royal property without entering into private negotiations with individuals.21 In 1445, as part of the resolution of a period of sporadic political conflict, the Livingstons, as royal councillors and keepers of the king’s person, again employed written bonds to secure their goals. On 6 July 1445 an indenture was made at Edinburgh between Walter Ogilvy of Beaufort, and Alexander Livingston of Callendar and his son, James. It dealt with Ogilvy’s delivery of an heiress for marriage to James’ son and, in return, a promise that Ogilvy would have his rights and lands recognised by the king.22 The Livingstons’ promise of patronage rested on their position as the custodians and councillors of the young king. The next day they were included in a second bond with Ogilvy. This time they were named as part of James II’s daily council, and it was this body that concluded the agreement. Ogilvy bound himself to ‘the furtherance and defence of the king in all his actions’, and ‘neither to consent nor to counsel the undoing’ of the king’s councillors.23 These terms were similar to the oaths of loyalty reportedly sworn by those at the parliament, which had been sitting in Edinburgh in early July. These two bonds suggest that Ogilvy was one of those making peace with the council at the parliament. The personal arrangements in the first bond were cemented by obligations of political support stated in the second. However, both took the form of bonds, and reflect the council’s seeking service and adherence through individual agreements with former opponents.24 It is even possible that the infamous bond between the Livingstons’ ally, William, earl of Douglas, and the earls of Ross and Crawford fitted into this pattern of private arrangements being utilised in connection with the exercise of royal government. There is evidence that the bond resolved disputes that centred on the lands of the earl of Crawford and the Douglas earls of Moray and Ormond around the Moray Firth. An agreement seems to have allowed the Douglases and Crawford custody of lands previously occupied by Alexander, earl of Ross and his associates during the late 1440s. However the settlement also seems to have involved the Livingstons and the royal council. 21 RPS, 1440/8/5; Michael Brown, ‘Public authority and factional conflict: crown, parliament and polity, 1424‒1455’, in Keith M. Brown and Roland J. Tanner (eds), The History of the Scottish Parliament, vol. i: Parliament and Politics in Scotland, 1235‒ 1560 (Edinburgh, 2004), 123‒44. 22 NRS, GD45/27/106. 23 NRS, RH6/311; Alan R. Borthwick, ‘The King, Council and Councillors in Scotland, c.1430‒1460’, unpublished PhD thesis (University of Edinburgh, 1989), 56‒120. 24 RPS, 1445/3‒7.

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In the aftermath of the putative bond, Ross’ son and heir married the daughter of James Livingston. This secured the northern magnate access to the king and council. In return, royal keepers were allowed entry into the castles of Urquhart and Inverness, which Ross had occupied for most of the minority.25 If these things were connected, it provides a further indication of the way in which royal authority had come to be linked to the negotiation of relationships and the resolution of disputes through the medium of written, personal bonds.

III For minority regimes of limited resources there was an obvious value to the direct and indirect use of such agreements to secure adherence and exercise authority. However, in the context of royal government, it is hard not to regard the employment of bonds as running counter to the statements made by adult kings with regard to their position as sovereign ruler of their realm. Such statements can be found regularly within the legislation issued by James I. Most directly in 1425 a statute was issued proclaiming that the king forbade that: any leagues or bonds be made between them [the king’s lieges], either to confer against the king or against any of his lieges in a partial manner. And if any [league or bond] has been made at an earlier time, that they not be kept nor held in time to come.26

This act was accompanied by similar legislation about the size and behaviour of aristocratic retinues, the keeping of ‘firm and secure peace … among all the subjects of the lord king’, the standards of justice by royal officials, the penalties for rebellion ‘against the king’s person’, and for those who ‘disobey to enforce the king against notorious rebels’ when asked by the king or his ministers.27 Taken together, these statutes stressed the person, authority and role of the king as superior to those of his subjects and protected by laws passed by king and estates. In January 1450, James II’s first parliament after his marriage and the arrest of his erstwhile keepers, the Livingstons, re-enacted and amplified several of his father’s statutes. In particular, the obligation placed on all the king’s lieges to act against rebels was stated fully, and the first full definition of treason was provided in Scottish legislation. The statute defined the crime (unhelpfully) as ‘treason against the king’, but more specifically as rising in 25 For this interpretation of the bond between Douglas, Crawford and Ross see Michael Brown, ‘The great rupture: lordship and politics in north-east Scotland (1435‒1452)’, Northern Scotland, new ser. 5 (2014), 1‒25. 26 RPS, 1425/3/6. 27 RPS, 1424/2a, 1424/3, 1424/4; Michael Brown, ‘“Vile times”: Bower’s last book and the minority of James II’, SHR 79 (2000), 165‒88.

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war, laying hands on the king (regardless of age), helping or counselling those convicted of treason, stuffing (garrisoning) one’s own or traitors’ houses against the king or assailing the king’s residence.28 The last charge was a clear reference to the events of February 1437 and the killing of James I at the Perth Blackfriars. Laying hands on the king was a charge that may have recalled the treatment of James I in the general council of October 1436. However it produced a definition of treason that could be levelled against the Livingston family, whose seizure of the young James II from his mother in 1439 became both a cause and basis of the condemnation of the family at the January 1450 parliament.29 As well as the Livingstons, treason charges under the formula of a ‘crime committed against his majesty and rebellion’ had been levied against members of the defeated faction in 1445.30 The development of a defined charge of treason was driven by political events and crises but (like these crises) also involved the enhancement of the legal standing and authority of the crown, which made opposition to the king liable to capital punishment and the deprivation of lands. However, in the context of the crisis of 1452‒3 such laws and legalistic definitions do not seem to have provided the basis for the political judgement of king and estates. There was much in the actions of the Douglas earls that could have been presented as treason. In February 1452 Earl William clearly refused to provide the support against the king’s rebels specified in the statutes of 1424 and 1450. William’s ‘shameless obstinance’ in this regard was cited, along with ‘the bonds and conspiracies … with certain great magnates of the realm in oppression and offence of the most serene royal majesty and the public rebellions frequently perpetrated by him (and) his brothers’, to justify his death at the king’s hands in the parliament of July 1452.31 Earl James’ actions following his brother’s killing also invited a treason charge. The public renunciation of his allegiance and denunciation of the king and council, the burning of Stirling and his communication with the English king concerning his homage were all treasonable acts. However the king does not seem to have brought such charges against the earl. According to the contemporary Auchinleck Chronicle, the earl of Crawford was forfeited in the June 1452 parliament.32 The creation of James Crichton as earl of Moray at the same time indicates some form of challenge to the title of Douglas’ brother, Archibald, earl of Moray. There is, though, no indication of judicial action against James Douglas during the spring or summer of 1452. The dealings between the king and the earl in late August as expressed in 28 RPS, 1450/1/24. 29 Roland Tanner, The Late Medieval Scottish Parliament: Politics and the Three Estates, 1424‒1488 (East Linton, 2001), 122‒4. 30 RPS, 1445/7‒8. 31 RPS, 1452/6/1. 32 McGladdery, James II, appendix 2, 166.

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the ‘appoyntement’ drew on the practices of bonding used by James II’s councillors during the previous fifteen years and on long-standing approaches to dispute resolution within and between realms.33 The promise to forgive any anger and abandon causes arising from the killing of Earl William or other matters can be compared with the queen’s ‘appoyntement’ with the Livingstons in 1439. Like the bonds between the Livingstons and the council and Ogilvy of Beaufort from 1445, the 1452 agreement included matters of public obligation, concerning the making of leagues and bonds against the king in 1452, as elements of private negotiation. In common with many private agreements, it was also made evident that an issue of property and patronage was at the core of the negotiation. Most significantly, however, like the examples mentioned above, the 1452 ‘appoyntement’ clearly derived from the negotiations between a king and a subject as political rivals.

IV The ‘appoyntement’ thus corresponded to the use of bonds by the king’s counsellors during the preceding decade. It also fitted into a wider political settlement. The earliest indication of this was the grant of royal letters of remission to Archibald and Duncan Dundas on 16 August 1452.34 The Dundas family was closely linked to the Livingstons and had been forfeited following the capture of their tower by the king and the Douglases in February 1450. Their restoration was also linked to the upturn in the Livingstons’ fortunes. The day after parliament assembled at Edinburgh on 26 August the king rescinded the sentences of forfeiture that had been passed on Alexander and James Livingston and their kin and allies, including the Dundas family. James II stated that his action came ‘in consideration of the solicitude and laudable service to us in time of our tender age’ and from his ‘benevolence’.35 However, the act went beyond the king’s relations with his former keepers. It had been the Livingstons’ fall that had precipitated the rebellion of John, earl of Ross and lord of the Isles in 1451. According to the Auchinleck chronicle, James Livingston had fled to his son-in-law ‘for supple and succour’, and Ross ‘tuke plane part agayne the king for him’.36 In October 1451 Livingston appeared at Duffus near Elgin along with Archibald Douglas, earl of Moray as procurators for the resignation of lands to John of 33 See for example Gerd Althoff, ‘Satisfaction: peculiarities of the amicable settlement of conflicts in the Middle Ages’, in Bernhard Jussen (ed.), Ordering Medieval Society: Perspectives on Intellectual and Practical Modes of Shaping Social Relations, trans. Pamela Selwyn (Philadelphia, PA, 2001), 270‒84; J. E. M. Benham, Peacemaking in the Middle Ages: Principles and Practice (Manchester, 2011). 34 NLS, Adv. MS B1315. 35 NLS, Adv. MS B1316; RPS, 1452/2‒6. 36 McGladdery, James II, appendix 2, 169.

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the Isles, earl of Ross.37 This indicates direct contact between the rebel earl of Ross, his fugitive father-in-law and the Black Douglases in the months before Earl William’s killing. It may also illustrate the role of James Livingston as a point of contact between these magnates. Livingston’s rehabilitation by James II and the restoration of his lands on 26 August can be linked to the character of the king’s relations with these earls. If Auchinleck is to be believed, James II’s action removed the reason for the earl of Ross to continue in rebellion, and this may have been the king’s primary motivation in reversing his judgements against his former keepers. The timing of the royal pardon links the restoration of Livingston to the ‘appoyntment’ with James, earl of Douglas. In the coming months James Livingston would appear on safe conducts from the English government, which were issued to James, lord Hamilton.38 It is even possible that around this time Alexander, earl of Crawford reached an agreement with the king, which may have involved the reversal of any sentences passed against him in June.39 If so, then like the bond that had aroused James’ ire in February, the resolution of the conflict was based on personal connections and obligations of family, on negotiated private agreements expressed in written bonds rather than on the public authority of the crown and the weight of parliamentary statute. The motivation, like the settlement between the duke of Albany and the earl of Douglas in 1409, was a pragmatic desire to avoid a sustained period of disruption that might involve the intervention of the English crown. The settlement therefore renewed the political fabric of the kingdom via compromise and negotiation.

V How did the Lanark bond, the letters issued by James earl of Douglas four and a half months later on 16 January 1453, relate to this settlement? Historians have generally been uncertain about the motives behind this second arrangement. Most have regarded it as a fresh concession to Douglas by James II, which indicated the king’s ‘impotence’ and ‘insecurity’. Dunlop linked it to the English safe-conduct issued to Douglas’ ally, James, lord Hamilton, and James Livingston in early January, and almost all accounts (including my own) erroneously link the bond to the marriage of Earl James 37 NRA(S), 3094/7‒8. 38 Rymer, Foedera, xi, 319, 327. Hamilton was associated in the terms of the ‘appoyntement’ alongside his close political ally, Douglas. 39 In December Crawford’s father-in-law David Dunbar of Cockburn granted lands to Bishop Kennedy’s recently founded college of St Salvator in St Andrews University, for the souls of King James and Alexander, earl of Crawford. Dunlop may have been correct in linking this gift to Crawford’s rehabilitation: St Andrews University Library, UYSS 110 MI; Dunlop, Bishop Kennedy, 143‒5.

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to his brother’s widow, Margaret.40 Margaret Douglas was the earls’ cousin, and lady of Galloway in her own right. A dispensation was issued for the marriage between Margaret and James Douglas on 27 February and the king may have consented to the match.41 However such consent was not contained in the Lanark bond. For James Douglas, as for his brother, the marriage was vital to the continued lordship of the successors of Archibald the Grim (who had acquired Galloway for the Douglases in the 1360s and 1370s) over southwest Scotland. Custody of Margaret was maintained after the death of Earl William. In June 1452 as ‘consort of the late William earl of Douglas’ she was included in the safe conduct issued to her former mother-in-law, Countess Beatrice.42 However by 1 November, James, earl of Douglas was at Threave Castle using the title lord of Galloway.43 His presence at the head place of the lordship, styled as its lord, is clear evidence that he had already married Margaret prior to the receipt of a dispensation. Rather than seeing the Lanark bond as arising from renewed tensions between the king and the earl for which there is no direct evidence, an understanding of its purpose should derive from the terms included in the text. Most obviously, like the ‘appoyntement’, the first issue dealt with in these letters was that of land, specifically the earldom of Wigtown and the lordship of Stewarton in Ayrshire. The place accorded to these lands in the two documents must be taken as evidence of their central importance in relations between the earl and the king. Moreover, it is possible to trace this significance back to the late 1440s. In January 1449 James II issued a transumpt (legal transcript) of seven charters. These included the grant of the earldom of Wigtown by David II to Thomas Fleming and Robert II’s confirmations of Fleming’s resignation of the earldom to Archibald Douglas in 1372, as well as David’s grant of the lordship of Galloway (east of the Cree) to Archibald three years earlier. The other charters were royal confirmations of the rights of the Murray family to Hawick, Sprouston and half the lordship of Stewarton. These fourteenth-century charters were being registered as legal proof of the rights of Earl William Douglas as heir to these lands. The need for this proof indicated insecurity about their title, which was borne out during the next two years.44 When, in late 1450, James II exploited Earl William’s absence from Scotland to send adherents into Douglas’ lands and, reportedly, attack his 40 Dunlop, Bishop Kennedy, 142‒3, 145; McGladdery, James II, 82‒3; Norman Macdougall, James III: A Political Study (Edinburgh, 1982), 7; Brown, Black Douglases, 299. 41 Calendar of Entries in the Papal Registers Relating to Great Britain and Ireland: Papal Letters, vol. x (1447‒1455), ed. J. A. Twemlow (London, 1915), 130‒1. 42 Rymer, Foedera, xi, 310. 43 HMC, 11th Report, Appendix VI, Hamilton, no. 14. 44 For the background to these charters and anxieties about the Douglases’ rights see Brown, Black Douglases, 60‒1, 63, 65‒8, 120, 171‒2.

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castles and kill or extract oaths from his tenants, Wigtown and Stewarton were taken into the king’s hands. In May 1451 James II appointed Andrew Agnew, ‘his familiar’, as hereditary sheriff of Wigtown.45 The following month the king made ‘an accordance’ with Douglas that involved the earl submitting himself to ‘the kingis grace’, and James II receiving him and restoring all his lands ‘outane the erldome of wigtoun … and stewartoun’.46 In early July the king confirmed Douglas in all his principal estates with the obvious exception of Wigtown and Stewarton, and to emphasise his control over these lordships he made a grant of lands in Stewarton to Alexander Home.47 However, in October, with the earl of Ross close to revolt, James ‘with the full deliberation of the three estates in open parliament’, issued charters that recognised William’s possession of Wigtown and Stewarton in terms which ignored any interruption in his tenure.48 To reinforce this, in January 1452, Douglas granted lands in Wigtown to Robert Vaus. However, after the killing of Earl William, the pendulum swung again.49 In June and July, as King James launched political and military attacks on the Douglases, he once again granted land and office in Wigtown and Stewarton. Most significantly it is clear that, at this point, James II used the earldom and lordship to endow his queen with her dower lands.50 It was against this background that both the ‘appoyntement’ and Lanark bond dealt with Wigtown and Stewarton. Rather than the Lanark bond marking a royal climbdown over these lands, it was the fulfilment of the earlier arrangement. In August, Douglas agreed not to pursue the lands until the special favour and licence of Queen Marie had been obtained. The terms of the Lanark bond imply that this had occurred and that Douglas anticipated the king’s letters giving him ‘lawful entrie and possession’ in the two lordships. Douglas’ grant of lands in the earldom of Wigtown in October 1453 provides evidence that he had indeed obtained possession from the king.51 The central importance accorded to the earldom of Wigtown and the lordship of Stewarton in efforts to resolve the conflict between the king and the earl in 1452‒3 confirms the evidence that tenure of these fiefs was a key issue of dispute between the crown and the Black Douglases. In 1450 and 1452 King James had used forceful means to assert his rights as direct holder of Wigtown and Stewarton, disposing of land and office within them. This position was established not by a sentence of forfeiture on the earls but by 45 46 47 48 49 50 51

RMS, ii, no. 447. McGladdery, James II, appendix 2, 165. RMS, ii, nos 463, 466‒72, 474‒82, 485. RMS, ii, nos 503‒4. Wigtownshire Charters, ed. R. C. Reid (SHS, 1960), no. 136. NRS, GD25/1/53; Wigtownshire Charters, no. 139. Wigtownshire Charters, no. 141. In March 1453 Douglas also granted lands in the earldom of Carrick to his secretary Mark Haliburton: NRS, GD25/1/55.

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exploiting a flaw in their titles to these lands. In July 1451 Earl William Douglas must have accepted the king’s right as part of his ‘accordance’ with the king. However, this was a short-lived concession. Over the period from 1449 to 1453 the earls also asserted and sought to preserve their rights in these lands by appealing to earlier royal charters that recognised the acquisition of the estates, and by securing fresh charters and letters from James II confirming rights of entry and possession in Wigtown and Stewarton. For the Douglas earls therefore the crown remained the source of legal title, but the efforts of James II to seize the lands or deny title and sasine to the earls was a breach of their rights that could be legitimately resisted.

VI This ability or need to separate the authority of the crown as the legitimate basis of law and landholding from the actions of a king as a potential threat to good order and legality in his realm was, of course, a fundamental problem of late medieval politics in both theory and practice across Christian Europe.52 The problem may have had a particular resonance in mid-fifteenth-century Scotland. James II and his father had both been keen to present themselves as the source of peace, justice and protection for all their subjects against the plundering of robbers, the impositions of lords and the corruption of royal officials. However to many of their magnates they must have appeared as powerful territorial rivals, capable of invoking their sovereign status to secure possession of lands and revenues from their nobility. As a perception this may have had its roots in the governorship of Robert, duke of Albany, whose use of concepts of public authority in pursuit of private claims has been stressed recently. Even instinctive royalists like Walter Bower could demonstrate disquiet with royal acquisitiveness.53 There may thus be a sense in which an acquisitive approach to monarchy undermined its authority whilst it developed its resources. From the last months of James I’s reign onwards, a series of royal legal judgements had been challenged, subverted or ignored. Robert Erskine’s custody of the earldom of Mar between 1438 and 1448, Alexander of the Isles’ recognition as earl of Ross in 1436 and Isabella, duchess of Albany’s appearance as countess of Lennox after 1437 all represented either formal or tacit reversals of sentences of forfeiture or acts of enforced resignation. The sentence of forfeiture passed on Duncan, earl of Lennox in 1425 was quietly expunged 52 Jean Dunbabin, ‘Government’, in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought (Cambridge, 1988), 477‒519; Antony Black, Political Thought in Europe, 1250‒1450 (Cambridge, 1992), 148‒52; Antony Black, Monarchy and Community: Political Ideas in the Later Conciliar Controversy (Cambridge, 1970). 53 Chron. Bower (Watt), viii, 219, 257.

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and it was an extended council of thirty-one that allowed Erskine temporary custody of half of Mar. The ‘full and mature deliberation’ of the estates that was said to have preceded James II’s charter of Wigtown and Stewarton to Earl William in October 1451 may reflect a similar sense that the king had overstepped his rights and that peace would be best served by the restoration of lands and titles to the Douglases.54 Similar pressures may well have underpinned the peacemaking of 1452‒3. The terms of the ‘appoyntement’ from Douglas and the Lanark bond, as well as the locations from which they were issued, suggest a process of ongoing negotiation between two sides, with the earl in upper Clydesdale and the king in Edinburgh and Stirling. The restoration of the Dundas and Livingston families may even indicate the roles of members of these kindreds in negotiations. This negotiated character runs through the bond, producing a document in which the king’s authority was filtered through the language and expectations of good lordship and loyal service. Thus the promise to take the king’s part against enemies and rebels, implicitly referring to Earl William’s actions in 1451‒2, expressed the public duty of subjects, as stated in statute and oath of fealty, as a private accord. This was comparable to Ogilvy of Beaufort’s bond of 1445 with the council, but now made with an adult king. A similar construction can be placed on the final, and perhaps crucial, clause. In this, Douglas undertook to ‘assist my soveragne lord … in ye resyneing of his heritage, rentis or possessions disponit or annalied fra the croune’. The meaning of this clause clearly envisaged the recovery of lands given away by the crown.55 It can be connected to a statute of 1445 forbidding alienations of royal lands from the death of James I in 1437, and to the plan for a formal act of revocation by James II on his twenty-fifth birthday in 1455.56 However, given the readiness of kings to challenge rights of property since 1424, this clause cannot be confined to set occasions or statutes. What is striking is the stated exclusion of any gifts or ‘sickernes’ (sureties) made to the Douglas earls by King James from royal action to reclaim them. As territorial rights had been central in the causes and settlement of the recent disputes between these parties, this clause was aimed at securing the future relationship between them.

54 RMS, ii, nos 503‒4. 55 Though suggestive of the king’s resignation, ‘re-syneing’ is employed here to mean ‘to give back (a possession), restore … bring back’: Middle English Dictionary, ed. R. E. Lewis (Ann Arbor, MI, 1984), xi, 525. 56 RPS, 1445/2; NRS, RH6/342, GD25/1/65; Tanner, Late Medieval Scottish Parliament, 151, 154.

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VII Douglas’ promise to assist the king in the recovery of lands would exercise a crucial influence on the development of their relationship after the Lanark bond. Armed with foreknowledge of the final conflict between the king and the Douglas earls from January 1455, historians have seen the bond as a temporary and insincere arrangement between implacable opponents who used the next two years to prepare for a renewal of open hostility. However, there are indications in 1453 and 1454 that the settlement between the king and the earl was effective. Douglas’ leading role in the negotiation of a renewed truce with England in May 1453 was a sign of the benefits of co-operation, while the king’s appointment of James Livingston as his chamberlain and Douglas’ uncle, William, earl of Orkney as chancellor in April 1454 suggest he was placing trust in men with proven connections to Earl James.57 What seems to have undermined the peace in the bond were issues relating to the annexation of lands by King James. In 1454, following the death of his chancellor, William, lord Crichton, James’ attention turned to William’s cousin, George, earl of Caithness. George was forced to resign ‘his conquest landis’, those he had acquired during his own lifetime, to the king in May.58 These included Blackness Castle, which was then briefly held against the king by George Crichton’s son. The Douglas earl was no friend to the Crichtons, and the redistribution of the offices held by William, his son James, and George benefited Orkney, Livingston and Archibald Dundas, perhaps in a royal attempt to secure Douglas support.59 However the earl’s attitude to the treatment of George by the king is uncertain. In conjunction with the account of Crichton’s resignation, the Auchinleck Chronicle reported a meeting between Douglas and John earl of Ross and lord of the Isles in Knapdale (on the western seaboard), which was widely known and poorly thought of.60 Moreover in the treason charges brought against the earl of Douglas and his family in June 1455 a list of violent actions in Lothian was included. Amongst these was the earl’s offering of ‘help and support’ to Robert Douglas in seeking the lands of Strathbrock (Broxburn) ‘to the disinheritance of the king’. Strathbrock had been held by George Crichton, and the earl’s action was a challenge to the king’s efforts to secure these lands.61 More serious were physical attacks against Dalkeith and against Kincavil and Bondington near Linlithgow.62 These actions probably occurred in early 57 Borthwick, ‘Council’, 488, 491; NRS, B59/28/5. 58 McGladdery, James II, 84‒5, appendix 2, 167; Dunlop, Bishop Kennedy, 150; NRS, GD32/20/2. 59 ER, vi, 90, 98, 100. 60 McGladdery, James II, appendix 2, 165. 61 RPS, 1455/6/6. 62 RPS, 1455/6/6.

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1455 but were prompted by the earl’s disquiet about the king’s handling of the lands of the lords of Dalkeith. In a long-running dispute, the Black Douglases had supported the claims of Henry Douglas of Borg (who was married to Margaret, sister of the eighth and ninth earls) against his elder, but incapable, brother, James. By early 1452 a compromise had left the two brothers in joint custody of Dalkeith.63 However the crown had already annexed the lands of Kincavil and Bondington, which had been held by the lords of Dalkeith since the fourteenth century.64 Then, probably after Henry’s death, the king upheld the claims of his elder brother’s family. After the fall of the earl of Douglas, the king would engineer the transfer of the inheritance to the son of the elder brother. Henry’s widow, the earl of Douglas’ sister, was forfeited and in exile by 1457.65 In the 1460s the new lord of Dalkeith came to terms with Henry’s son, granting him lands in return for a promise not to claim Dalkeith. He also sought help to recover Kincavil from the crown.66 James’ handling of the Dalkeith inheritance in the early 1450s, which may have followed on from his treatment of George Crichton, had significant repercussions. The most immediate of these was the hostility of Earl James and his family. This hostility may have been predictable but it also broke the terms of the agreements between the king and the earl in 1452‒3. In early 1455 James II was able to count on a body of support that was wide but, more importantly, fixed in its adherence to the king’s goal of engineering the permanent fall of the Black Douglases.67 This collective resolve through a relatively lengthy conflict was not inevitable and differed from the apparent pressure on the king for an accord in 1452. One explanation for this may be that in 1455 Douglas could not present himself as seeking to avenge the killing of his brother or to protect his patrimony from royal annexation. Both these issues had been resolved in the settlement of 1452‒3. Instead, the earl’s violent response to royal efforts to settle a long-standing and divisive family dispute, and to resume lands that were claimed to have been alienated from the crown, made it easy for the king to present Douglas as the breaker of both the peace and the sworn terms of his bond with him.

63 NRS, RH6/307; RMS, ii, no. 515. 64 Registrum Honoris de Morton, 2 vols, eds Thomas Thomson, Alexander Macdonald and Cosmo Innes (Bannatyne Club, 1853), ii, 154, 157; ER, v, 456‒7, 544, 647. 65 ER, vi, 196, 347. 66 Morton Reg., ii, no. 222; NRS, GD150/142; RMS, ii, no. 1138. 67 For accounts of the events of 1455 see Brown, Black Douglases, 299‒308; McGladdery, James II, 84‒6.

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VIII The Lanark bond cannot be regarded as an exceptional document. Since 1437 (and before 1424) royal governments had repeatedly regulated their relationships via essentially private arrangements. Both the bond and the ‘appoyntement’ represented the need to reinforce the language of royal authority with that of lordship and manrent. That issues of landholding were central to both documents also attests to the importance of such issues in dispute resolution between nobles. It might be suggested that the crown’s use of its judicial, ideological and material powers to secure tenure of a number of provincial lordships and earldoms since 1424 had made the use of such powers much more significant in political life – but also more problematic. The first sixteen years of James II’s reign witnessed the king and his councillors having to negotiate with subjects over the exercise of royal authority. The Lanark bond was one more example of this and, though the fall of the Douglases in 1455 was a clear demonstration of the powers of the crown, Scottish royal government and their subjects would continue to see the value of private or personal agreements in the running of the realm.68

68 In the 1460s, for example, the Boyds used bonds to maintain their hold on James III’s council, while the king himself brokered a peace with his brother, Alexander, duke of Albany, via an indenture in 1483: NRS, GD25/1/96; APS, xii, 31‒3; Norman Macdougall, James III (2nd edn, Edinburgh, 2009), 69‒70.

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Appendix: Text of the Lanark Bond from a Seventeenth-Century Transcript I James erle of dowglas obleiss me be yese my letteres written withe my hand and be ye faith of my bodie yat for alsmeikell as my sov lord hes promittit to me be his lettres written withe his hand to gif me lawful entrie and possession unto the erldome of Wigtoun and landis of Stewartoun with the pertinences betwixt this and pasche in ye next generale connsale as his said lettaris mair fullelie propertis I bind me to my said sov lord be ye faith of my body as is forsaid the halie evangell touchand yat I sall als soone as thir thing forsaid conteinit in my said sov lordes lettres not fullfilled to me that I sall incontinent in ye said nixt generalle counsall be my sleff or my procuratoris having full and plaine power thereto of me under my seall and subscript of my body bind to my said sov lord my manrent and my service in ye best and maist sure forme that can be sein to my said sov lord bot incontinent for all the dayes of my lyf before and againe all thame that to fore do ma. And that I sall neuer wytt in privie na in a pert be na maner of way harme dew or evill to my sov lordes persone bot I sall latt … yt and keipe him therfra and warne him therof incontinent. And that I sall gif over all liges and bandis maid betwixt me and any persone lefaule of quhat estaitt or natione that ever they be for evir mair gif ony be made that ar contrair to my sov lord, na I sall nevir mak nane in tyme to come the qlk sall be contrair to his hienes or his realme be na maner of way, and that I sall be with him at all my power and tak part with him formaly againe al his enemies and rebellis beand within his realme at all tymes and in tyme of peace keipe all trewis within his boundes belaingand me And in tyme of war defend thame as esseurly And that I sall assist to my sov lord withe all my poure in ye re-syneing of his heritage rentis or possessions disponit or analied fra the croune in all places saiffing the giftis and sickernes given be him to my brother whome god assolzie and me in ony tyme bygand and at all thir conditiones befour written sall be lellelie and trewlie kepit but fraud or gyle I have given bodilie with oath the evangell touchand And to the mair witnessing I have sett my seall At Lanark ye 16 of January in ye 3ear of our Lord I m iiii c lii

69 NLS, Adv. MS 22.1.14 (163 verso).

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chapter 11

James III: Kingship and Contested Reputation ALASDAIR A. MACDONALD There is a long-standing consensus among Scottish historians regarding the poor, not to say utterly bad, reputation of James III.1 To some extent this is understandable, since James had the ironic misfortune to be the father of a son whose reign is generally (and rightly) upheld as marking the Golden Age of late medieval Scotland: the question is, however, whether the glory of the son has not darkened the reputation of the father?2 The present contribution does not seek to restore the balance by impugning the reputation of James IV – albeit that the latter’s personal morality was far from irreproachable, his piety was of a suspiciously ostentatious sort, and his command of military strategy led to the total disaster of Flodden; rather, it will suggest that there are in the life of James III aspects that have not been fully understood, but deserve to be taken into consideration if a more just appreciation of this much censured monarch is to be attained.

I In several respects the behaviour of James III differed strikingly from that of his son. Perhaps most obviously, he preferred to stay in Edinburgh as much as possible, rather than travel restlessly round his kingdom. James III, of 61 This was well analysed in Norman A. T. Macdougall, ‘The sources: a reappraisal of the legend’, in Jennifer M. Brown (ed.), Scottish Society in the Fifteenth Century (London, 1977), 10‒32. Macdougall’s subsequent, and fuller studies are: James III: A Political Study (Edinburgh 1982), revised as James III (Edinburgh, 2009); for the sake of brevity, these two versions will be identified below under their respective dates of publication. Contrasting with Macdougall’s careful weighing of the evidence, see the brutally brief conclusion of Roland Tanner, ‘James III was a bad king, no more, no less’, in his ‘James III (1460‒1488)’, in Michael Brown and Roland Tanner (eds), Scottish Kingship, 1306‒1542: Essays in Honour of Norman Macdougall (Edinburgh, 2008), 209‒31, at p. 228. 62 Indicative is the fact that a standard reference work allocates a separate entry to James IV but not to his father: Michael Lynch (ed.), The Oxford Companion to Scottish History (2nd edn, Oxford, 2004).

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course, had no need to make highly visible pilgrimages to the tombs of northern and southern saints (in casu SS Duthac and Ninian) to atone for his part (real or imputed) in the heinous crimes of regicide and parricide;3 nor had he any need to wear a heavy chain round his waist. While such penitential mortifications contribute to the modern fascination with James IV, the very absence of such exercises on the part of James III should perhaps be construed as a sign of merit. Inevitably the king, by staying in his capital, could not expect to reap the political rewards of exposure to the crowd. In modern idiom, he seems to have been little inclined to ‘press the flesh’, and he has been accused of parsimony: there are known for him none of the charmingly spontaneous donations of his son, who lavished money on minstrels, menials and mistresses.4 However, that James III might have been building up a fund with which to finance some great, but ultimately unrealised, enterprise (for example in relation to Gueldres) is a possibility for which no historian seems to make allowance.5 Another area in which James III has been found deficient is in the upholding of justice. This would normally be demonstrated by the king presiding at justice ayres held in the provinces of his realm; such duties, however, seem to have had little appeal for this largely non-peripatetic sovereign. James, moreover, has been blamed for extracting bribes in lieu of carrying out sentence of justice properly or consistently, and by extension he has been accused of an inability to regulate his own mind and behaviour. One of the earliest criticisms levelled at him concerns his favourites: yet, while such a pattern of politics is an inherent danger in any court-centred system of government, James’ particular fault would seem to have been his predilection for men with artistic gifts, such as the architect Thomas (or Robert) Cochrane. Furthermore, James has been blamed for interfering in important decisions and then abruptly changing his mind: Robert Lindesay of Pitscottie (himself not the most reliable memorialist) called it ‘that wicked variatioun / Off James the third’.6 As a result, so it might be thought, people 63 Instead James III and Margaret of Denmark made a pilgrimage to Whithorn in 1473 for the happier purpose of celebrating the birth of their first child: Macdougall (2009), 90. 64 The treasurer’s accounts for the reign of James IV are full of the records of such payments: for a representative specimen, see R. L. Mackie, King James IV of Scotland (Edinburgh, 1958), 125. For the reign of James III, unfortunately, the treasurer’s accounts do not survive. 65 A parallel can be given from the English poet Stephen Hawes, in his ‘A Joyfull Meditacyon’ (1509), a work that celebrates the coronation of Henry VIII. Commenting (lines 71‒98) on the reputed avarice of the previous king, Hawes suggests that the true reason for the latter’s accumulation of a great hoard may have been in order to finance a great project, such as a crusade against the Turks: Stephen Hawes: The Minor Poems, ed. Florence W. Gluck and Alice B. Morgan (EETS, 1974), 87‒8. 66 Robert Lindesay of Pitscottie, The Historie and Chronicles of Scotland, 3 vols, ed. Æ. J. G. Mackay (STS, 1898‒1911), i, 211; Macdougall (2009), 150‒4. Great play is made

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never really knew where they were with this king, who is accused of not running a sufficiently tight ship. Such allegations are familiar, nay hoary: they appear in the accounts of early modern historians, but they continue to play at the present time. Reiteration, however, does not convert allegation into truth, nor, in the assessment of kingly character, are the themes of government and administration everything: there is a clear need to consider all the factors that may contribute to showing how ‘it really was’ in relation to James III.7

II An approach to at least a partial recuperation of the king’s reputation may be made via a scrutiny of a particular and well-known story, of which the true nature and rhetorical function have not entirely been recognised, and which as a result can serve as a test case for the present argument. Hector Boece, in his history of the bishops of Aberdeen, recounts an incident involving James III, bishop William Elphinstone of Aberdeen, and the legate of the Pope, bishop Giacomo Pasarella of Imola.8 This illustrious threesome, it is said, were on their way to Restalrig, when they encountered an unnamed Scottish nobleman, who, having been condemned for murder, was about to be put to death. The king, on asking the papal legate what should happen with the man, received the advice, ‘Let justice be done’ (fiat justitia). James then turned to Elphinstone, and observed that the Scottish bishop’s face betrayed disapproval of the words of his Italian colleague. Boece puts the following words into the mouth of the king: ‘Is this the compassion of Italian churchmen? You [i.e. Elphinstone] used to give me very different advice’. The king then, with the words ‘Let mercy prevail’, gave order that the man’s life was to be spared. For R. L. Mackie, this little incident provided an excellent illustration of James’ weakness and vacillation.9 This view was rejected, however, by Norman Macdougall, in his political study of 1982: for him, rather, Boece was an unreliable narrator by virtue of his here ‘omitting the vital factor of payment for royal forgiveness’, and in this way the significance of the event with the favourites in Mackie’s ‘Prelude’ to the following reign: King James IV, 15‒21. Pitscottie’s stanzas on James III, as Mackay notes, are taken from Lyndsay’s ‘The Testament of the Papyngo’, but for the significant adjective ‘wicked’ for which the historian is uniquely responsible: cf. Janet Hadley Williams, ‘Verse in Pitscottie’s Historie and Cronicles of Scotland, NLS, MS Acc. 9769, Personal Papers, 84/1/1’, in Kevin J. McGinley and Nicola Royan (eds), The Apparelling of Truth: Literature and Literary Culture in the Reign of James VI: A Festschrift for Roderick J. Lyall (Newcastle upon Tyne, 2010), 134‒47, at p. 142. 67 ‘Wie es eigentlich gewesen’, in Leopold von Ranke’s celebrated formulation. 68 Hector Boece, Murthlacensium et Aberdonensium episcoporum vitae, ed. and trans. James Moir (New Spalding Club, 1894), 201‒2. 69 Mackie, King James IV, 32.

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was moved from the psychological and moral to the judicial and administrative domains.10 Macdougall also expatiated on James’ sins in this latter area, and supported his view by alleging that the practice was typical of Scottish kings. However, if Mackie’s interpretation was problematic, that of Macdougall (in 1982) was also unsatisfactory, and it does not figure in the revised version of his study. In Boece’s account there is no mention of money whatsoever, and an invocation of that issue – however relevant it may be to other moments in James’ career – would be gratuitous in the interpretation of this particular incident. As it happens, Macdougall’s 1982 examples of the venality of Scottish kings in taking payment for pardons relate rather to James II and James IV, and so the third James comes to be smeared with the malversations of his predecessor and his successor. It is true that another favourite of James III, John Ramsay, was accused of ‘the oppression of … prelates, barons, burgesses and lieges by the common selling and buying of justice’, but this allegation, as Macdougall notes, was made only after the overthrow of the king in 1488, and may well reflect the need of the new regime to justify rebellion after the event: the phenomenon of Siegerjustiz (victor’s justice) is nothing new.11 Anyway, even if Ramsay were in fact guilty as alleged, that would in itself carry no necessary implications for James. These are all political considerations and, as Macdougall demonstrates, they are details in a larger picture. However, it will here be argued that they require to be complemented by an investigation of factors pertaining to cultural history and literary genre. The latter are particularly important in the case of Hector Boece’s cameo narrative, since the Restalrig story is less a recording of fact and more an exemplary tale. As such, it scarcely matters that the homicidal nobleman is left unnamed: in fact, even if such a person were never actually to have existed, the rhetorical functioning of the story – of which the primary purpose is to praise Elphinstone – would not be vitiated. In a secondary and indirect way the story presents James III as an eirenic ruler (whether or not he actually deserved to be so seen), in his insistence on the value of mercy over against strict justice.12 In late medieval literature Justice and Mercy were regularly conceptualised as two of the four daughters of God, abstract terms that lent themselves to application in the domain of government: the good king would be imitating God himself, were he to succeed in reconciling such antinomies.13 10 Macdougall (1982), 202; cf. Macdougall (2009), 250‒2. 11 Macdougall (1982), 202‒3. In Macdougall (2009), 297‒304, there is an excellent discussion of the way in which sixteenth-century chroniclers commented on the reign of James III. 12 This general concern is prominent in William of Touris’ Contemplacioun of Synnaris (c.1497): Devotional Pieces, ed. J. A. W. Bennett (STS, 1955), 72‒4 (lines 121‒76). 13 The other two daughters were Truth and Peace. This very common medieval motif

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It is quite possible, and even likely, that Boece’s story should be deconstructed along such lines. Yet the story contains further significance, since the brief phrase, fiat justitia, which is put into the mouth of the distinguished ecclesiastic and canonist Pasarella, lends itself to more than one interpretation. As the Latin is reflected in Older Scots usage, to ‘justify’ someone could mean: to put him on trial, to judge him, to execute justice upon him, or to put him to death.14 It is not evident which sense of this multivalent term would be best applicable in Boece’s account. Furthermore, should the Latin phrase be understood as the first half of the familiar Senecan maxim fiat justitia ruat caelum (‘may justice be done, though the heavens should fall’), this would suggest uncompromising rigour on the part of Pasarella, and ipso facto contrast with Elphinstone’s more clement instincts.15 Yet the phrase fiat justitia, on its own, could also mean ‘let the case be submitted to due process of trial’; in this interpretation, Pasarella would emerge as a stickler for formal legal procedure. However, once again there is a potential catch, since Pasarella’s words may admit the possibility that justice can be served by the king’s exercise of the royal prerogative of granting mercy: the latter option would itself belong within accepted and proper (albeit exceptional) legal procedure. If this were indeed the intended implication, the Italian would inevitably appear as less implacable, though his legalist and formalist spots would not have changed. While the opposition of justice and mercy remains fundamental to all these various interpretations, the subtext of the story is clearly a recommendation that the king should follow correct legal procedure – wherein the exercise of mercy is not precluded. In his resolution of the dilemma in this particular case, the king does manage to reconcile the principles of justice and mercy, and all three men emerge with credit – Pasarella for his rectitude, Elphinstone for his compassion, and James for his executive decision. It may was elaborated from an origin in Psalm 84:11 (Vulgate), and, for example, it plays an important role in Piers Plowman: William Langland, The Vision of Piers Plowman [B text], ed. A. V. C. Schmidt (2nd edn, London, 1995), 311‒16 (xviii, 110‒228). A Scottish example occurs in John Ireland’s Meroure of Wysdome, which was originally written for James III: Johannes de Irlandia, The Meroure of Wysdome, 3 vols, eds Charles Macpherson, F. Quinn and Craig McDonald (STS, 1926‒90), i, 106‒17 (II, ix). See Sally Mapstone, ‘A mirror for a divine prince: John Ireland and the four daughters of God’, in J. Derrick McClure and Michael R. G. Spiller (eds), Bryght Lanternis: Essays on the Language and Literature of Medieval and Renaissance Scotland (Aberdeen, 1989), 308‒23. 14 DOST, s.v. ‘justify’. 15 Leslie Macfarlane reads the story differently. According to him, Elphinstone would have seized upon the difference between involuntary slaughter (homicide) and murder, on which basis the unidentified nobleman would not deserve to incur the death penalty: Leslie J. Macfarlane, William Elphinstone and the Kingdom of Scotland, 1431‒1514: The Struggle for Order (Aberdeen, 1985), 114.

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also be noted that in combining justice and mercy James was following the advice given to kings by St Bridget of Sweden, advice taken into Walter Bower’s Scotichronicon, and which James may therefore be presumed to have known.16 In any event, the Scottish king, who is shown as heeding the counsels of his attendant bishops, is a figure very different from that of the modern received consensus, which has tended to see him as little more than the whirligig of his favourites. It must, of course, be stressed that one is concerned here with rhetoric rather than with historical reality: in Goethe’s terms, Boece’s exemplary story belongs more to Dichtung (artistic creation) than to Wahrheit (unadorned fact), and to apply the story without due reservation in a political study of royal maladministration is to tilt at the wrong windmill.

III Boece’s location of the story in connection with Restalrig is a highly significant aspect of the story. Perhaps because Restalrig is today one of the visually less pleasant suburbs of Edinburgh, it tends to be neglected by both citizen and tourist. In the late fifteenth century it was a separate village, situated less than a mile to the east of the palace of Holyrood, and was the site of one of the graveyards serving the capital. Restalrig contained a truly remarkable ecclesiastical building: this was the capella regis, begun by James in 1477, who ten years later was granted papal permission to found it as a collegiate church beside the parish church of Restalrig.17 Sadly, all that now remains of this royal chapel, which was initially separate from the parish church (now known as St Margaret’s), is merely the undercroft of what was originally a two-storey construction.18 This undercroft is itself partly below ground level, and is thus inherently susceptible to flooding, something that has led to the old misunderstanding – long ripe for eradication – of the building as a ‘balm well’.19 The chapel’s upper storey was devastated in 1560 at the behest of the very 16 Chron. Bower (Watt), v, 308‒15 (Bk. x, cc. 7‒8). See Sally Mapstone, ‘Bower on kingship’, in Chron. Bower (Watt), ix, 321‒38. 17 A. A. MacDonald, ‘The chapel of Restalrig: royal folly or venerable shrine?’, in L. A. J. R. Houwen, A. A. MacDonald and S. L. Mapstone (eds), A Palace in the Wild: Essays on Vernacular Culture and Humanism in Late-Medieval and Renaissance Scotland (Leuven, 2000), 27‒59. For the record, this paper should not be thought to suggest that Restalrig chapel is ‘serious evidence for James III as a “renaissance prince”’ (Tanner, ‘James III’, 224). Its only use of the word ‘Renaissance’ (p. 28) is in relation to James V, and, though Restalrig chapel has many points of interest as a cultural monument, affiliation with the Renaissance is not one of them. 18 The most recent discussion of Restalrig is Richard Fawcett, The Architecture of the Scottish Medieval Church (New Haven, CT, 2011), 282‒5. 19 It is likely that at Restalrig there was a well from which blessed water would have been distributed: this was presumably the hexagonal stone well-house (‘St Margaret’s Well’) which, in 1859, to make way for the railway, was moved from its original site in the

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first General Assembly of the Protestant church, which branded it ‘a monument of idolatry, [to] be razed and utterly cast down and destroyed’.20 As a consequence, the proper recognition of the significance of this chapel is now not easy. In its pristine condition, it must have been a most impressive building, and the records attest the expense of its construction.21 Moreover, the very vehemence of the Assembly’s order implies an uncommon degree of animosity on the part of the Kirk, and suggests that at the time of the Reformation the chapel must have been perceived as a monument of the most egregiously papistical sort, irredeemably incompatible with the new religious fashion. King James III, however, must have been proud of his creation, since it was evidently fit to be shown off to a legate of the Pope. Restalrig chapel is said to have been a place where liturgical practice of the highest standard took place, and Macdougall has made the convincing suggestion that James may have intended it as a (the?) chapel royal: this institution had hitherto been located at the church of St Mary on the Rock, St Andrews, and later, under James IV, it would be given a new and permanent location within Stirling Castle (1501).22 In terms of royal building projects, Restalrig may be compared with another edifice, situated not far away: this was Trinity College, founded by Mary of Gueldres in 1460, as a mausoleum-chapel for her husband, James II. Regrettably each building would suffer great damage: Restalrig at the hands of the Reformers, Trinity College beneath the juggernaut of the Victorian railway. Yet even in its present, degraded state Restalrig remains a monument of great interest. The chapel was erected over the shrine of St Triduana – now an unfamiliar saint, but one who was the subject of an important and developing cult in the century before 1560. It should be noted that for Edinburgh and its environs Triduana was in fact the only local saint, male or female; this fact, together with the evident presence of her complete skeleton, were powerful attractions not to be matched even by the relics of St Giles, in the burgh’s collegiate church, and of St Andrew, in the diocesan cathedral. Venerable on account of her chaste virtue, her heroic piety, her antiquity, and graveyard below Restalrig chapel to its present location in Holyrood Park: MacDonald, ‘Chapel of Restalrig’, 36. In the neighbourhood of Edinburgh, however, there was an actual balm-well at Liberton, from which blessed oil was said to flow: David McRoberts, ‘Scottish pilgrims to the Holy Land’, IR 20 (1969), 99‒100. 20 BUK, i, 5. See also David McRoberts, ‘Material destruction caused by the Scottish Reformation’, in David McRoberts (ed.), Essays on the Scottish Reformation, 1513‒1625 (Glasgow, 1962), 415‒62, at p. 420. 21 To finance it, James diverted the considerable income from the priory of the Benedictine abbey of Coldingham: Macdougall (2009), 250‒2. 22 Ibid., 250. On the chapel royal at Stirling see Charles Rogers, History of the Chapel Royal of Scotland (Grampian Club, 1882).

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her ability to intercede in heaven on the part of those who prayed at her shrine, Triduana was a very real link between the physical and the metaphysical realms, between the contemporary circumstances of Scotland and the perpetual felicity of heaven.23 For most people today such notions are perhaps likely to count for little or nothing: in the late fifteenth century, however, the case was very different, and the late medieval founding of Triduana altars in several prominent churches (for example in Edinburgh, St Andrews, Dundee, Brechin and Aberdeen) indicates a distribution of relics from the shrine at Restalrig, in a deliberate campaign to extend the cult.24 Though Boece does not emphasise the point, the visit of James III and the two bishops indubitably belongs within this hagiographical context. In his formative years, James was presumably influenced by his mother, Mary of Gueldres, who through her marriage (1449) to James II brought to Scotland the habits of piety and devotion characteristic of the trend-setting Burgundian court of her great-uncle, Philip the Good. To Mary, the scarcity of local (and especially female) saints in her new environment – St Margaret, at Dunfermline, is the exception that proves the rule – can only have seemed disturbing, and a sense of such deficiency may explain the manifest, and presumably compensatory, upsurge of interest in St Triduana beginning in mid fifteenth-century Scotland. The personal piety of James III has scarcely been the subject of study (unlike that of his son), but it is at the very least possible that, with the erection of the chapel of Restalrig, James III was following the example set by Mary of Gueldres. The proximity of Triduana’s principal cult-site to the royal residence was, moreover, a happy coincidence, and if Restalrig were indeed intended as the site of the chapel royal, its location would have been most convenient for this sedentary monarch. The architecture of the chapel of Restalrig is in its own right remarkable.25 In its ground plan – a regular hexagon – it is extremely unusual: in the British Isles there is no other freestanding specimen, and non-freestanding specimens are also virtually unknown.26 An attempt has been made to attribute the inspiration for this design innovation to the visit made by Anselm Adorne (another favourite of James III) to the monastery of Mount Phileremos on 23 For Triduana and her legend see MacDonald, ‘Chapel of Restalrig’, 34‒5, 58‒9; also Alan Macquarrie (ed.), Legends of Scottish Saints (Dublin, 2012), 240‒3, 420‒1. 24 Helen Brown, ‘Saint Triduana of Restalrig? Locating a saint and her cult in late medieval Lothian and beyond’, in Debra Higgs (ed.), Images of Medieval Sanctity: Essays in Honour of Gary Dickson (Leiden, 2007), 45‒70, at p. 62. 25 Iain MacIvor, ‘The King’s Chapel at Restalrig and St Triduan’s Isle: a hexagonal twostoried chapel of the fifteenth century’, PSAS 96 (1962‒3), 247‒63; Richard Fawcett, Scottish Architecture from the Accession of the Stewarts to the Reformation (Edinburgh, 1994), 146‒9; MacDonald, ‘Chapel of Restalrig’. 26 The highly decorated hexagonal north porch of St Mary’s Redcliffe, Bristol, is attached to the main structure.

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Rhodes in 1470‒1, in the course of his return from a pilgrimage to Jerusalem; this theory, however, is unconvincing.27 However, a most satisfactory medieval parallel can be adduced: this is the chapel of St Quirinus, beside the monastic and pilgrimage church of SS Eucherius and Matthias, outside Trier. As with Restalrig, the Trier chapel, likewise located in a burial ground, is built over an undercroft containing the tomb-shrine of a local Christian heroine – in casu the third-century Albana, a saint more ancient but little less obscure than Triduana. A comparison may be made between Figures 11.1 and 11.2. The hexagonal design of these chapels – a feature also seen in many medieval pulpits, and in innumerable medieval reliquaries – is not accidental, but is informed by Basilean and Augustinian number theory, wherein six was a signifier of the penultimate age of the world.28 This sixth age began with the birth of Christ (the Word), and would end at the Second Coming; in other words, it is the age containing the historical life of Christ, and, after his Ascension, the preaching of the Word. The chapels at Trier and at Restalrig are not the only examples of hexagon symbolism as realised in architecture. The chapel of St Erhard (1230) in the monastery-fortress of Grosscomburg (by Schwäbisch Hall, in Baden-Württemberg) is one excellent specimen, and commemorated the seventh-century ‘Scotish’ (i.e. Irish) bishop of Regensburg. Another is the St Matthias chapel at Kobern-Gondorf (on the Moselle, near Koblenz), built to house the saint’s skull, which had been brought back from Damietta (Egypt) by Heinrich II von Isenburg-Kobern, on his return (1221) from the Fifth Crusade; in the fifteenth century the skull was transferred to Trier. Inspiration from the Holy Sepulchre at Jerusalem is evident in both monuments; at Grosscomburg this contrasts effectively with the prominent New Jerusalem symbolism of the famous wheel-chandelier hanging over the high altar in the main, monastic church.29 Thus it cannot be doubted that the exceptional architectural form of the chapel of Restalrig was connected with this symbolism. Furthermore, in its two-storeyed construction, it linked saintly virtue from the remote past (St Triduana) with the devotions of the present time. Whether the Trier chapel may have been the actual inspiration for Restalrig, however, is an idea that cannot be advanced with certainty, since independent conception, or parallel derivation from the typological model, cannot be excluded; but it is not impossible, especially given the importance of pilgrimage to the tomb of St 27 Miles Glendinning, Ranald MacInnes and Aonghus MacKechnie, A History of Scottish Architecture (Edinburgh, 1996), 10. At the time of Adorne’s visit, the two hexagonal chapels at Mount Phileremos were not yet in existence; furthermore, once built, they were not freestanding, were not regular hexagons, and were not two-storeyed: MacDonald, ‘Chapel of Restalrig’, 43. 28 Vincent F. Hopper, Medieval Number Symbolism (New York, 1969); Heinz Meyer and Rudolf Suntrup, Lexikon der Mittelalterlichen Zahlenbedeutungen (Munich, 1987), 442‒79. 29 Rainer Jooß, Kloster Komburg im Mittelalter (Sigmaringen, 2nd edn, 1987). I am much obliged to Professor Richard Fawcett for drawing these German chapels to my attention.

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Matthias (the only one of the Twelve Apostles to be buried north of the Alps), and the fact that Trier could easily be visited by Scottish clergymen on their way to and from Rome.30

IV A detail curiously unmentioned in Hector Boece’s narrative is that Pasarella, the papal legate, was in Scotland to honour James III with the Golden Rose from Innocent VIII.31 This award was a signal commendation, and testifies to the recognition of the king’s piety and service to the Church. As was normal, the Golden Rose would have been blessed in Rome by the Pope on Laetare Sunday (the fourth Sunday in Lent), to be presented to its destined recipient at or around Easter. The royal excursion to Restalrig may thus be presumed to have taken place sometime close to the latter feast in 1486. As already noted, a mere one year later James would found Restalrig as a collegiate church.32 Whereas the festive and ceremonial Edinburgh presentation of the Golden Rose would probably have taken place in some appropriately spacious ecclesiastical surrounding33 – for which the most ready candidate would have been the Abbey church of Holyrood – this leaves the question of what can have been the special objective of the royal procession to Restalrig, especially since the latter was a building of modest proportions (only some twenty-five feet in internal diameter) and could at best have accommodated only a small and almost private company, and for these reasons seems most unlikely to have been the location of the Golden Rose ceremony. In other words, what could have been the purpose of the Restalrig chapel – beyond providing a fitting shrine for St Triduana? Although lack of documentation means that certainty is not possible in this matter, an answer grounded in contemporary devotional attitudes and practices may be tentatively proposed. A general context would have been that of Passion devotion, the role of which in late medieval culture can scarcely be overemphasised.34 The Passion was central in the liturgy of the 30 McRoberts, ‘Scottish pilgrims’, 84. On pilgrimage to Trier see also Wolfgang Seibrich, ‘Die Trierer Heiltumsfahrt im Spätmittelalter’, Archiv für mittelrheinische Kirchengeschichte 47 (1995), 45‒125. Seibrich notes that pilgrimage to Trier was especially popular in the Low Countries, and was often part of a longer pilgrimage via Aachen and Cologne to Rome (p. 116). 31 Charles Burns, ‘Papal gifts to Scottish monarchs: the golden rose and the blessed sword’, IR 20 (1969), 150‒94; Macdougall (2009), 295. 32 Nevertheless, Restalrig only acquired the anticipated prebends under James IV, in 1512: Ian B. Cowan and David E. Easson, Medieval Religious Houses: Scotland (2nd edn, London, 1976), 224‒5. 33 Burns, ‘Papal gifts’, 159. 34 A. A. MacDonald, ‘Passion devotion in late-medieval Scotland’, in A. A. MacDonald,

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Figure 11.1 The chapel of St Quirinus, Trier, consecrated 1287. In the foreground is the stair leading down to the St Albana crypt. The roof of the chapel is from the 17th century. (Photo: John Flood)

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Figure 11.2 The chapel of Restalrig: conjectural drawing by Richard Fawcett. Reproduced, with permission, from L. A. J. R. Houwen, A. A. MacDonald and S. L. Mapstone (eds), A Palace in the Wild: Essays on Vernacular Culture and Humanism in Late-Medieval and Renaissance Scotland (Leuven, 2000), 54.

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mass; Good Friday and Easter gave focus to the entire Church Year; the theme was continued in liturgical feasts both ancient (the Invention of the Cross, the Exaltation of the Cross) and modern (the Crown of Thorns, the Five Wounds, the Vera Icon); the scene of the Passion was omnipresent in paintings and sculpture, in music and drama, and it underlay most of the texts in Books of Hours, which catered for personal devotions. The Church of the Holy Sepulchre in Jerusalem inspired numerous European imitations – one of the most remarkable being the Jerusalem Church in Bruges, constructed by Peter Adorne, father of Anselm, in which a huge Calvary dominates the altar and the replica Tomb. The tower of Adorne’s church, which would have been a familiar sight to any inhabitant of Bruges and any Scottish visitor, is topped by a replica of the hexagonal canopy, which then stood over the Edicule in Jerusalem. It seems very likely that the chapel of Restalrig, with its highly peculiar architectural form, was conceived as a place specifically for Passion devotion on the part of the king. A typological similarity has been discerned with the hexagonal shape of many medieval reliquaries, as in the tabernacle portrayed in the Book of Hours of James IV and Margaret Tudor (c.1503), a manuscript produced in either Bruges or Ghent.35 It is thus not only possible, but rather a thing to be expected, that the upper storey of Restalrig chapel would have contained artistic features connected with the Passion (for example some very prominent crucifix, an altar with a Crucifixion scene painted on its reredos, or some replica of the Holy Sepulchre). The contemporary international cult of chivalry, and the Bruges-centred devotion to the Holy Blood, were other factors linking Europe and Jerusalem within the context of Passion devotion.36 H. N. B. Ridderbos and R. M. Schlusemann (eds), The Broken Body: Passion Devotion in Late-Medieval Culture (Groningen, 1988), 109‒31. 35 MacDonald, ‘Chapel of Restalrig’, 32‒4. For the idea that a centrally constructed polygonal chapel may resemble a monstrance, see also, in relation to a number of such buildings in north Germany (in particular the two-storeyed chapel of St Anne and St Gertrude beside the cathedral of Havelberg, in Brandenburg): Dieter HoffmannAxthelm, ‘Das Wunderblut von Beelitz’, in Felix Escher and Hartmut Kühne (eds), Die Wilsnackfahrt: Ein Wallfahrts- und Kommunikationszentrum Nord- und Mitteleuropas im Spätmittelalter (Frankfurt am Main, 2006), 199‒233, at p. 220. 36 A. A. MacDonald, ‘Chivalry as a catalyst of cultural change in late-medieval Scotland’, in Rudolf Suntrup and J. R. Veenstra (eds), Tradition and Innovation in an Era of Change/Tradition und Innovation im Übergang zur Frühen Neuzeit (Frankfurt am Main, 2001), 151‒74; Alasdair A. MacDonald, ‘Princely culture in Scotland under James III and James IV’, in M. Gosman, A. MacDonald and A. Vanderjagt (eds), Princes and Princely Culture, 1450‒1650, 2 vols (Leiden, 2003‒5), i, 147‒72. Although the idea of the founding by James III of an Order (either of the Unicorn or of St Andrew) has been shown to be improbable (Katie Stevenson, ‘The Unicorn, St Andrew and the Thistle: was there an order of chivalry in late medieval Scotland?’, SHR 83 (2004), 3‒22), the evidence for contemporary Scottish interest in chivalry remains strong.

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The chapel of Restalrig belongs primarily within the architectural genre of the mortuary chapel (German: Grabkapelle). This was typically a private chapel for the use of a particular family, and normally situated within or beside a burial ground. Such chapels were frequently two-storeyed edifices: a lower storey to contain (optimally) the sarcophagus or relic-shrine of some saint, or of members of the respective founding family, with a chapel above to cater for votive masses for the dead.37 In size, style, architecture and decoration such chapels reflected the social and financial status of the founder, and, as capella regis, Restalrig would naturally have demonstrated that of James III.38 However, if it is indeed a mortuary chapel, for whom would Restalrig have been particularly intended? It is not impossible that James intended it for himself – hence, perhaps, one possible sense of the term capella regis. But if James III planned that Restalrig would be his own final resting-place on earth, his purpose was to be thwarted, since, defeated at the battle of Sauchieburn (1488), he was buried beside Margaret of Denmark in Cambuskenneth Abbey. Another possibility is that James may have intended it for his queen. Margaret, who died at Stirling in July 1486, had perhaps only provisionally been buried at Cambuskenneth. Provisional interment would have applied a fortiori to James, who could not have foreseen his death so far away from his home base. In either scenario, it seems likely that Restalrig would have been conceived as a parallel to Trinity College (also close to Holyrood), which was the mausoleum of James II and (later) Mary of Gueldres. The parallel would explain the expense of the construction of Restalrig chapel, just as the site of the grave of St Triduana would have dictated its location. Nor should liturgical and musical aspects be overlooked. Votive masses were commonly continued for long periods, even in perpetuity, and for such commemorations, specially financed clergy were required; such an intention would satisfactorily explain the erection of a collegiate church. This arrangement accords well with Macdougall’s chapel royal hypothesis, and both purposes The Chapel (now Basilica) of the Holy Blood in Bruges was another two-storeyed edifice, with below, the Romanesque and plain chapel of St Basil, and above, the splendidly Gothic chapel housing the relic of the Holy Blood. 37 That such a functional relationship would have applied in the case of Restalrig has not hitherto been recognised: cf. George Hay, ‘The architecture of Scottish collegiate churches’, in G. W. S. Barrow (ed.), The Scottish Tradition: Essays in Honour of Ronald Gordon Cant (Edinburgh, 1974), 56‒70. 38 A modern (1884) Scottish specimen, but which in its impressiveness corresponds to all these aspects, is that of the Fraser of Hospitalfield family, in the Western Cemetery, Arbroath. It may be noted that, after the Reformation, the undercroft of Restalrig, now deprived of the relics of St Triduana, gained a new function as the burial place of the prominent local family of Logan of Restalrig: J. N. Logan Home, History of the Logan Family (Edinburgh, 1934), 25‒8.

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may well be relevant in James’ foundation.39 Significantly, there is no trace of any specifically monastic building (e.g. cloister, refectory, or chapter-house) at Restalrig, but none such would have been necessary: the celebrants in the king’s chapel would have been neither eremitical nor coenobitic, but seculars attached to the college that was institutionally linked with the neighbouring church.40 It is not surprising, therefore, that at a somewhat later date the parish church was extended westward to occlude the original entrance to the hexagonal chapel, thereby incorporating into a single building (if awkwardly) the two principal components of the Restalrig complex.41 This would naturally account for the subsequent frequent designation of Restalrig chapel as an ‘aisle’, though it was never an aisle in the normal sense: the floor of the upper chapel was some eight feet above that of the church, and access from church to chapel, after both were conjoined, was only possible via a narrow flight of steps, with a right-angle turn making processions difficult.42 There could never have been any natural or easy connection – whether visual or aural – between the ceremonies taking place in the church and those in the chapel: though Restalrig chapel might have been called an aisle, it would remain more like an oratory, a place for exclusive and private royal devotions. It was suggested above that Mary of Gueldres might have brought a strain of Burgundian devotional practice with her to Scotland. The same cannot automatically be presumed of Margaret of Denmark, but that is not to rule out the possibility that, once at the Scottish court, she may have displayed a comparable pattern of behaviour. Margaret is recorded as having been a notably pious lady, and after her death James III supplicated for her canonisation.43 Shortly into the new reign (1490) an Italian vita was written by Giovanni Sabadino degli Arienti, and seven years later a Latin version was composed by the humanist Jacopo Foresti da Bergamo.44 Not since Turgot’s vita of St Margaret (early twelfth century) had a Scottish queen been so honoured. In assessments of James III and his queen allowance should be made for the operation of personal piety, while always conceding the inevitable mixture of motives that characterised royal behaviour: one modern historian has observed that ‘James had been as devout as Margaret throughout 39 Masses for the souls of James and Margaret were indeed to be said in Restalrig chapel in perpetuity: ibid., 28‒35. 40 As has been noted, it was only in 1512 that prebends were actually appointed: see note 32, above. 41 At Beelitz and other German churches similar incorporations of originally separate chapels occurred: Hoffmann-Axthelm, ‘ Das Wunderblut’, 208‒20. 42 See the gound plan diagrams in MacIvor, ‘The King’s Chapel’, opposite pp. 258, 260 and 262. 43 Rosalind K. Marshall, Scottish Queens, 1034‒1714 (East Linton, 2003), 82. 44 S. B. Chandler, ‘An Italian Life of Margaret, Queen of James III’, SHR 32 (1953), 52‒7; Joanne Sabadino de li Arienti, Gynevera de le Clare Donne, eds Corrado Ricci and A. Bacchi della Lega (Bologna, 1968), 312‒20.

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his life’.45 John Ireland wrote for the king a treatise (unfortunately now lost) de auxilio speciali – a theological concept particularly associated with Gregory of Rimini (d.1358), which holds that, in addition to dispositional grace, God’s ‘special help’ is necessary in making possible an individual’s virtuous act of volition.46 James, the dedicatee of this book by his own confessor, should perhaps be credited with having read it, and he may even have been influenced by it. Hector Boece noted that James could not pass any image of either Christ or the Virgin without bursting into tears.47 On the other hand, any display of such emotionally charged, Burgundian-style heightened piety, however much that may have been characteristic of contemporary royal devotion, was quite likely to have struck many of James’ less impressionable and susceptible nobles as abnormal, excessive and possibly rebarbative, and the grievance could only have been all the greater, the more it were perceived as leading the king to divert considerable sums of money to such a project as Restalrig chapel. Behaviour of this sort could all too easily be misrepresented as emotional instability coupled with avarice.

V Macdougall has given a résumé of James’ complicated negotiations in the matter of the duchy of Gueldres, to which the Scottish king had a theoretically good claim: unfortunately, the acquisitive Realpolitik of Charles the Bold was to prove the stronger force, and the duchy passed into Burgundian control in 1473.48 The great attraction that Gueldres must have had for James is insufficiently appreciated today. As a territory, it was probably richer than Scotland; from the latter, however, it would have been easily reachable, since it bounded on the Zuiderzee.49 Gueldres, with inclusion of the county of Zutphen, and in its four ‘quarters’, was considerably larger than the modern Dutch province of Gelderland, and its total area was about the size of central Scotland. Gueldres, moreover, extended into what is now Germany, wherein 45 Marshall, Scottish Queens, 83. Macdougall (‘The sources’, 23) had noted that Adam Abell, writing in 1533, was impressed by James’ devotion. On royal piety see MacDonald, ‘Princely culture’, 160‒4. 46 R. J. Lyall, ‘The lost literature of medieval Scotland’, in McClure and Spiller (eds), Bryght Lanternis, 33‒47, at p. 38. On Gregory and auxilium speciale see Alexander Broadie, The Tradition of Scottish Philosophy (Edinburgh, 1990), 70‒3. 47 Boece, Murthlacensium Vitae, ed. Moir, 52. 48 Macdougall (2009), 115‒21. See also Gerard Nijsten, In the Shadow of Burgundy: the Court of Guelders in the Late Middle Ages, trans. Tanis Guest (Cambridge, 2004). 49 For a recent map, see G. G. Hellinga, Hertogen van Gelre (Zutphen, 2012), 22. On the importance of Gueldres see David Ditchburn, ‘The place of Gueldres in Scottish foreign policy, c.1449–c.1542’, in Grant G. Simpson (ed.), Scotland and the Low Countries, 1124‒1994 (East Linton, 1996), 59‒75.

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it possessed several exclaves. Such an alluring prize would not be undervalued by any Scottish king, and it is not surprising that the dream of gaining Gueldres lived on in the mind of James IV. Importantly, Gueldres was a dukedom under the Holy Roman Empire (as was the larger part of the Burgundian state itself), and it may be that this fact had some influence upon the ‘imperialist’ thinking of James III,50 and that the fame of Burgundy inspired some of what Jenny Wormald has called ‘James’ exalted ideas of kingship’.51 Since the marriage (1477) of Maximilian I to Mary of Burgundy, the only child of Charles the Bold, most of Burgundy had fallen under Habsburg control, and it is at least thinkable that the unsuccessful embassy to Worms led by Elphinstone in 1495, which tried to negotiate a marriage between the young James IV and Maximilian’s daughter Margaret,52 is to be placed in the envisioned context of a Scotland–Gueldres–Burgundy nexus. The reigns of James II, III and IV are those of the ‘Burgundian moment’ within the history of Scotland, and, despite the peripety of 1488, there is a very real cultural continuity between the decades before and after Sauchieburn. Just as the death of Charles the Bold did not mean the end of the cultural eminence of Burgundy, which continued as part of the ever larger territorial areas ruled by Maximilian I and Charles V, so the death of James III had little effect on the culture of late medieval Scotland, though most of the credit for the latter has usually been assigned to James IV.53 Robert Henryson, whose poems doubtless have a bearing on conditions under James III, lived on into the 1490s.54 John Ireland’s Meroure of Wysdome was actually composed for James III, though it was smartly rededicated to the new sovereign.55 The important poetry anthology assembled for Henry, third lord Sinclair, collected the courtly verse that had been esteemed in fifteenth-century Scotland and 50 Roger A. Mason, ‘This realm of Scotland is an empire? Imperial ideas and iconography in early renaissance Scotland’, in Barbara E. Crawford (ed.), Church, Chronicle and Learning in Medieval and Early Renaissance Scotland (Edinburgh, 1999), 73‒91; Tanner, ‘James III’. 51 Jenny Wormald, Court, Kirk and Community: Scotland, 1470‒1625 (London, 1981), 19. 52 Norman Macdougall, James IV (Edinburgh, 1989), 119. Only in 1543 was Gueldres fully integrated with the provinces of the Spanish-Habsburg Netherlands. 53 The continuity is stressed in MacDonald, ‘Princely culture’, passim. Needless to say, this is in no way to diminish the genuine cultural achievement under James IV, the appreciation whereof requires no depreciation of the previous reign. Roderick Lyall has given a succinct, and very positive, account of Scottish culture under James III: ‘The court as a cultural centre’, in Jenny Wormald (ed.), Scotland Revisited (London, 1991), 36‒48, at p. 42. 54 The Poems of Robert Henryson, ed. Denton Fox (Oxford, 1981). Henryson died sometime before 1505. 55 J. H. Burns, ‘John Ireland: theology and public affairs in the late fifteenth century’, IR 41 (1990), 21‒42; J. H. Burns, The True Law of Kingship: Concepts of Monarchy in Early-Modern Scotland (Oxford, 1996), 20‒39.

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so preserved it for later readers.56 Likewise, the career of the Observant Franciscan William of Touris lay in both reigns, though his poetic magnum opus, the Contemplacioun of Synnaris (c.1497), was written for the penitential Easter retreats of James IV.57 In relation to James and Margaret, the works of Sabadino, Foresti and Touris may perhaps be seen, if in different ways, as manifestations of a wider impulse of the 1490s, tending towards the disculpation of James IV. In architecture, music, art and in the production of manuscripts there was likewise no caesura at 1488, and in all these areas the late medieval and generally Burgundian-style cultural patterns continued: the latter could be transmitted to Scotland either directly from the Low Countries, or through France or the Empire, since Burgundy was closely linked with both.58

VI As far as culture is concerned, the idea of a new start under James IV seems to be a myth created by early modern historians and maintained at the present day. While there is no need to go into denial about the genuine inadequacies and mistakes of James III, a consideration of the role of kingly piety may supply as good an explanation of the contemporary aversion to James III as can come from the invocation, faute de mieux, of mere ‘personality politics’.59 Though the career of James III in the sphere of government may seem in many respects a study in failure, he did not alienate every noble and he retained the loyalty of important intellectuals and counsellors, such as John Ireland and William Elphinstone; as Macfarlane has observed, the contemporary literary works ‘do not blame the king himself ’.60 For Gordon Donaldson, James was ‘the royal enigma’, and Macdougall has well said that 56 The Works of Geoffrey Chaucer and ‘The Kingis Quair’: a facsimile of Bodleian Library, Oxford, MS Arch. Selden. B. 24, eds Julia Boffey and A. S. G. Edwards, with an appendix by B. C. Barker-Benfield (Cambridge, 1997). 57 Alasdair A. MacDonald, ‘Catholic devotion into Protestant lyric: the case of the Contemplacioun of Synnaris’, IR 35 (1984), 58‒87. 58 Cultural influences on Scotland from the Low Countries in the fifteenth century are largely synonymous with influences from Burgundy. See Alexander Stevenson, ‘Medieval Scottish associations with Bruges’, in Terry Brotherstone and David Ditchburn (eds), Freedom and Authority: Scotland, c.1050–c.1650. Historical and Historiographical Essays presented to Grant G. Simpson (East Linton, 2000), 93‒107; David Ditchburn, Scotland and Europe: The Medieval Kingdom and its Contacts with Christendom, c.1215‒1545: vol. i: Religion, Culture and Commerce (East Linton, 2001), especially ch. 3, ‘The cultural bonds’, pp. 93‒137. In the older scholarly literature, however, this connection was insufficiently recognised. 59 Tanner, ‘James III’, 226. 60 Macfarlane, William Elphinstone, 187.

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‘it is at least possible that James III was not so much the victim of unworthy familiars as of missing evidence’.61 The reductionist view, that James was ‘a bad king, no more, no less’, may be fair enough if only politics and finances are taken into account, but the evidence from culture, religion and literature also requires to be considered, even though the resulting picture, though fuller, may remain enigmatic.

61 Gordon Donaldson, Scottish Kings (2nd edn, London, 1977), 96; Macdougall (2009), 247.

chapter 12

Beyond the Declaration of Arbroath: Kingship, Counsel and Consent in Late Medieval and Early Modern Scotland ROGER A. MASON The Declaration of Arbroath of 1320 is a remarkable document. By any standards, it is a uniquely succinct and effective expression of medieval regnal solidarity under a monarch who reigns only on condition that he maintains the kingdom’s freedom from foreign over-lordship.1 Addressed to Pope John XXII by ‘the barons, freeholders and the whole community of the realm of Scotland’, it begins with an account of the Scottish people’s ancient origins, their early conversion to Christianity, and the cruelty of Edward I towards a kingdom made vulnerable by the crisis of a disputed kingship. It then goes on to say that the Scots have been set free by ‘our most valiant prince, king, and lord’, Robert Bruce, who ‘like another Maccabeus or Joshua’ has delivered Scotland out of the hands of its enemies and whose rule is sanctioned by divine providence, rightful succession, and ‘the due consent and assent of us all’. Yet, it proceeds, while King Robert’s rule may be triply legitimate – sealed by God, hereditary right and the consent of the people – it is assuredly not unconditional. On the contrary, in an oft-quoted passage, it states that: … if he [Robert] should give up what he has begun, seeking to make us or our kingdom subject to the king of England or the English, we would strive at once to drive him out as our enemy and a subverter of his own right and ours, and we would make some other man who was able to defend us our king. For as long as a hundred of us remain alive, we will never on any conditions be subjected to the lordship of the English. For we fight not for glory nor riches nor honours, but for freedom alone, which no good man gives up except with his life. 61 For the translation used here, see A. A. M. Duncan, The Nation of Scots and the Declaration of Arbroath (Historical Association, London, 1970); see also James Fergusson, The Declaration of Arbroath 1320 (Edinburgh, n.d.); and for a recent reappraisal, Geoffrey Barrow (ed.), The Declaration of Arbroath: History, Significance, Setting (Society of Antiquaries of Scotland, Edinburgh, 2003).

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Even leaving aside the final Sallustian flourish, it is not surprising that the blend of patriotism and political radicalism that these lines encapsulate has become a focus of consuming pride to many modern Scots. Nor is it surprising that the Declaration is often taken to be an expression of a distinctively Scottish attitude to government – at once independent of foreign interference and accountable to the people – that has allegedly defined Scottish political culture from that day to this. After all, such a self-congratulatory story speaks eloquently – if hardly accurately – of the Scots’ contribution to the creation of modern liberal democracy. This whiggish view is presumably not one to which Jenny Wormald would subscribe. We are all hugely indebted to her pioneering assault on the old ‘thud and blunder’ view of late medieval Scotland, and its replacement by a much more nuanced understanding of the relationship between crown, magnates and community that is characterised as much by co-operation and consent as by confrontation and dissent. Yet, paradoxically, the revisionism that took its cue from Wormald’s iconoclasm has made the continuing influence of the Declaration’s principles of contractual monarchy all the more plausible. Certainly, though probably irrespective of academic revisionism, the Declaration has come to be seen as Scotland’s Magna Carta, the ur-text of a tradition of Scottish political thought and practice that in turn defines Scotland’s unique constitutional – and cultural – identity. Just as Scottish civil society is said to be less hierarchical and deferential, more caring and communitarian, more egalitarian and populist than everywhere in general, but England in particular, so the new Scottish Parliament is said to be the ‘people’s parliament’, founded, not on the reactionary (English) doctrine of parliamentary sovereignty, but on the progressive (Scottish) principle of popular sovereignty. And in support of these views there has developed a reassuringly flattering story of how such democratic principles – like the wellworn trope of the democratic intellect – are rooted in Scotland’s history, if not in the Scottish psyche itself. In 2006 the then presiding officer of the Scottish Parliament, George Reid, wrote in celebration of George Buchanan’s five hundredth birthday that, in his famous political treatise De Iure Regni apud Scotos Dialogus (1579), Buchanan: had gathered together the essence of a Scottish constitutional tradition and passed it on to those who followed. The theory of contractual sovereignty, where the public good of the community comes first, runs all the way from the Declaration of Arbroath through the National Covenant, the Solemn League [and Covenant], the thinking of Enlightenment philosophers like Dugald Stewart, the writing of Robert Burns, the Disruption, the early socialist and nationalist agitators, to the Constitutional Convention and its Claim of Right signed by MPs and representatives of civic Scotland in 1988: ‘We acknowledge the sovereign right of the Scottish people to determine the form of government best suited to their needs.’ Almost 500 years after the birth of Buchanan, on the opening day of the new Scottish Parliament,

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parliamentarians and people burst spontaneously into the singing of A Man’s a Man – not just the universal hymn of humanity, but a reaffirmation of the sovereignty of the people. I think George Buchanan, himself a member of the old Scots Parliament, would have been fine pleased.2

Perhaps. In any event, Reid is tapping into a set of beliefs, and an associated narrative, that requires a serious suspension of historical disbelief to be remotely credible. All cultures and communities like to think they are different and exceptional, and Scotland is no exception in thinking itself exceptional – or in promoting a self-congratulatory pseudo-history to prove it. Indeed the narrative of Scottish constitutional exceptionalism has gone global. In 1998 the United States Senate passed Resolution 155, establishing 6 April, the date of the signing of the Declaration of Arbroath, as Tartan (now Scotland) Day, and stating confidently, not to say casually, the entirely erroneous view that ‘the American Declaration of Independence was modelled on that inspirational document’.3 And it is not just the resolution’s proposer, the former Republican Senator for Mississippi, Trent Lott, who would like to believe that America’s Founding Fathers drew inspiration from the Scottish tradition of populist political thought. Ted Cowan would clearly like to believe it too, though he is too good a historian not ultimately to admit that there is precious little evidence that the Declaration of Arbroath exerted any direct influence over early modern Scots, let alone colonial Americans.4 And there’s the rub. For those who would like to see the Declaration of Arbroath as the fountainhead of Scottish political radicalism, the founding document of Scottish constitutionalism, animating Scottish political culture from that day to this, it is seriously problematic that for over 350 years after its composition virtually no one actually referred to it. It is true that a copy was transmitted to posterity via Walter Bower’s mid-fifteenth-century Scotichronicon, but there is no evidence of it ever being invoked or acted upon in disputes between late medieval barons and their over-mighty Stewart monarchs; no mention of it in the historical writings of John Mair and Hector Boece; no evidence of radical Protestant reformers like John Knox being at all familiar with it; no evidence that Buchanan had ever set eyes on it or that his most famous pupil James VI (and I) saw it as a threat to his divine right to rule; no evidence that Covenanters like Samuel Rutherford and Alexander 62 George Buchanan, A Dialogue on the Law of Kingship among the Scots [De Iure Regni apud Scotos Dialogus], ed. and trans. Roger A. Mason and Martin S. Smith (Saltire Society, Edinburgh, 2006), pp. ii–iii; a quite contrary view is expressed in the editor’s introduction (ibid., 20). On Buchanan as a parliamentarian, see below, note 38. 63 For the full text of the resolution, and a critique of the historical understanding that lay behind it, see Euan Hague, ‘National Tartan Day: rewriting history in the United States’, Scottish Affairs 38 (2002), 94‒124. 64 Edward J. Cowan, ‘For Freedom Alone’: The Declaration of Arbroath, 1320 (East Linton, 2003).

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Henderson had ever heard of it; and no evidence that the seventeenth-century lawyers Thomas Craig and Viscount Stair even knew of its existence. In fact, far from being influential, the Declaration of Arbroath was to all intents and purposes invisible until, ironically, it was published in the original Latin in 1680 by that out-and-out royalist, Sir George Mackenzie of Rosehaugh, ‘bluidy Mackenzie’, the scourge of Restoration religious dissenters, whose aim in doing so was to lend weight to the mythical antiquity of Scottish kingship and emphatically not to support its historically elective nature.5 In short, narratives of Scottish constitutional exceptionalism based on the enduring influence of the Declaration of Arbroath have little or no evidence to support them. However, this is not to deny that there were traditions of political discourse of broadly constitutionalist bent that informed political practice in late medieval and early modern Scotland. Indeed, in what follows it will be argued that there were at least three of them, and that in different ways and to different extents, these modes of discourse spoke to issues of kingship, counsel and consent in terms that might well define the Scottish monarchy as founded on a contract that rendered the crown accountable to the people (or at least their representatives). By sketching out the basic parameters of these traditions, it is hoped that a more historically sensitive understanding of the ways in which the relationship between the crown and the community was conceived in the fifteenth and sixteenth centuries will emerge. In order to achieve this, however, two important caveats need to be introduced. It must be borne in mind, first, that traditions of political radicalism were met and matched by countervailing traditions of conservative thinking – royalist ideologies that preferred to vest sovereignty in the person of the prince rather than the collective unwisdom of the people; and second, that these were not peculiarly Scottish traditions but modes of thought of European currency that might be given a Scottish inflexion but were by no means unique to Scotland.

I The first of these traditions was ecclesiastical conciliarism, the movement associated with the fifteenth-century councils of Constance (1414‒18) and Basle (1431‒49) that challenged the absolutist pretensions of the papal monarchy by arguing that the pope must be subject to a council representative 65 Fergusson, Declaration of Arbroath, 37‒41; Clare Jackson, Restoration Scotland, 1660‒ 1690: Royalist Politics, Religion and Ideas (Woodbridge, 2003), 64‒5. The first English translation was published appropriately enough in 1689; see Caroline Erskine, ‘George Buchanan, English Whigs and royalists, and the canon of political theory’, in Caroline Erskine and Roger A. Mason (eds), George Buchanan: Political Thought in Early Modern Britain and Europe (Farnham, 2012), 229‒45.

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of the church as a whole.6 This proved remarkably fertile ground for the development of secular theories of popular sovereignty and the accountability of kings to their subjects throughout Europe. Moreover, in the figure of the prolific scholastic logician, philosopher and theologian, John Mair (1467‒ 1550), conciliarism had a Scottish representative of genuinely international stature. Mair studied and taught at the Sorbonne for twenty-five years before returning to Scotland in 1518 to teach first at Glasgow University and subsequently at St Andrews. A towering figure in the world of late scholastic learning, Mair is seen by historians of political thought such as Quentin Skinner as a crucial transitional figure who was instrumental in making the medieval heritage of libertarian ideas available to the early modern world – and the fact that Mair certainly taught George Buchanan and probably taught John Knox lends weight to this view.7 But this is not the place to retrace what Francis Oakley long ago called the road from Constance to 1688.8 It is more important in this context to try and locate Mair in broader traditions of late medieval philosophy in order to explore the extent to which his conciliar politics were more widely disseminated in Scotland. In particular it is worth asking whether his brand of radical scholasticism was routinely taught at the three new universities founded in fifteenth-century Scotland: St Andrews (1413), Glasgow (1451) and King’s College, Aberdeen (1495).9 This is a particularly tricky enterprise, firstly, because the extant sources relating to what was taught in the Scottish universities are extremely thin, and secondly, because it requires an understanding of the complexities of late medieval academic philosophy that only a genuine specialist can claim to possess. Still, with the latter proviso particularly in mind, it is worth at least broaching these issues in the light of one of the few recent interventions on the subject of the Declaration of Arbroath that actually has something new to say. This is a brief piece by the historian of philosophy, Alexander Broadie, in which he argues that the authors of the Declaration may well have been influenced by the writings of John Duns Scotus (1266‒1308), the celebrated Franciscan theologian, who may have been Scottish, but spent his adult life at the universities of Oxford and Paris, before moving to Cologne in 1307 66 The literature is immense, but for a useful starting point, see J. H. Burns (ed.), The Cambridge History of Medieval Political Thought, c.350–c.1450 (Cambridge, 1988), esp. chs 17‒18. 67 Quentin Skinner, The Foundations of Modern Political Thought (2 vols, Cambridge, 1978), esp. vol. 2, 42‒7, 117‒23, 342‒5. 68 Francis Oakley, ‘On the road from Constance to 1688: the political thought of John Major and George Buchanan’, Journal of British Studies 1 (1962), 1‒31. 69 What follows is greatly indebted to Isla Woodman, ‘Education and Episcopacy: The Universities of Scotland in the Fifteenth Century’, unpublished PhD thesis (University of St Andrews, 2010), and to many conversations with Dr Woodman about her research.

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where he died the following year.10 Scotus was thus a near contemporary of the Scottish clerics who composed the Declaration, and Broadie points to some striking parallels between Scotus’ highly original ideas on free will, authority and consent and the conditional nature of Robert Bruce’s kingship as set out in the Declaration. Broadie does not claim to have presented conclusive evidence of Scotus’ influence on the Declaration as such, but even if it proves impossible to make such a categorical connection, Broadie’s work on late medieval Scottish philosophy more generally has demonstrated how thinkers like John Mair were acutely conscious of the debt they owed to Scotus.11 And this in turn prompts one to ask how prevalent Scotist thinking was in the fifteenth-century Scottish universities and what, if any, implications this might have had for the reception and dissemination of theories of limited, contractual monarchy based on the need for ‘popular’ consent? Scotus is generally considered a transitional figure between what became known as the via antiqua of Thomas Aquinas (1226‒1274) and Albert the Great (1190‒1280) and the via moderna, the new approach to theology and philosophy pioneered by the English Franciscan William of Occam (c.1285‒ 1349). The conflict of ‘moderns’ and ‘ancients’ is often characterised as one between ‘nominalists’ and ‘realists’ respectively. Defining it solely in terms of the issue of universals does not always work – Scotus was in this respect a realist – but there did develop in late medieval Europe a broad range of radical scholastic thinking, owing much to Scotus as well as Occam, and often described as nominalist, which questioned the prevailing Thomist–Albertist view of the rationality of God’s creation and the ordered, hierarchical and, in political terms, conservative understanding of the world to which this gave rise. Instead, Scotists and Occamists argued that God was inscrutable, unpredictable and inaccessible to reason. As a result they privileged faith over reason, circumscribing man’s ability to subject God’s creation to rational analysis, dichotomising man’s intellect and his will, and creating an altogether edgier and more contingent world than the comfortably ordered cosmos of the Thomists and Albertists. While the latter tended to see political authority as a necessary part of God’s creation and were as a result sympathetic to the pretensions of papal – and royal – monarchy, adherents of the via moderna were more likely to stress the importance of human volition in political society and to sympathise with both ecclesiastical conciliarism and the doctrines of popular sovereignty and the consent of the community, which were developed to underpin challenges to royal as well as papal absolutism.12 10 Alexander Broadie, ‘John Duns Scotus and the idea of independence’, in Edward J. Cowan (ed.), The Wallace Book (Edinburgh, 2007), 77‒85; see also his A History of Scottish Philosophy (Edinburgh, 2009), 25‒31. 11 See in particular Alexander Broadie, The Shadow of Scotus: Philosophy and Faith in Pre-Reformation Scotland (Edinburgh, 1995). 12 For the sources of this bald summary, see the wide range of essays in Norman

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John Mair was by no means alone among Scottish academics in acknowledging a debt to Scotus or in associating himself with the via moderna. Laurence of Lindores, for example, who dominated St Andrews University from its foundation in 1413 until his death in 1437, was an aggressive proponent of one of Occam’s most influential followers, the Parisian master Jean Buridan, while John Ireland, theologian of St Andrews and Paris, who eventually became James III’s confessor, was an equally combative nominalist. Although Lindores’ political views are unknown, Ireland was certainly familiar with conciliarist ideas, while Mair positively endorsed them.13 However, we do not really know what these academics actually taught the impressionable teenagers whom they guided through the philosophy curriculum. Aristotle, to be sure, but in glossing Aristotle’s Politics – or commentators on Aristotle’s Politics – how did they interpret for their young charges the relative merits of monarchy, aristocracy and democracy? How did their understanding of issues of free will and consent shape their attitudes to political authority? Unfortunately, the available sources are largely silent on these precise issues, though they do reveal that academic in-fighting between nominalists and realists dominated the Scottish universities as they did their counterparts elsewhere.14 Lindores’ grip on St Andrews, for example, led to a formal ban on Albertist teaching in 1418 (in favour of Buridan), which was only lifted when Lindores himself died, while Ireland probably left St Andrews after falling out with its then realist authorities and was certainly involved in having the ban on nominalist teaching, which was imposed at Paris in 1474, lifted in 1481.15 In fact, although proponents of the via moderna have attracted more attention from historians, fifteenth-century Scotland shared in a widespread European reaction against the radical scepticism of the nominalists, and a deliberate revival of the thinkers of the via antiqua, especially Albert the Great. As a result it was actually a form of Albertist realism that came to prevail in the newly founded Scottish universities. At St Andrews, following the death of Lindores in 1437, there was a concerted effort to re-establish Kretzman et al. (eds), The Cambridge History of Later Medieval Philosophy (Cambridge, 1982), and Robert Pasnau (ed.), The Cambridge History of Medieval Philosophy, 2 vols (Cambridge, 2009), esp. vol. ii, part VII. 13 On Ireland and Mair, see Broadie, History of Scottish Philosophy, chs 3‒4, and J. H. Burns, The True Law of Kingship: Concepts of Monarchy in Early-Modern Scotland (Oxford, 1996), ch. 1. 14 For the wider European context, see H. De Ridder-Symoens (ed.), A History of the University in Europe, vol. i: Universities in the Middle Ages (Cambridge, 1992), esp. 328‒33 and 438‒41. 15 The most comprehensive study remains John Durkan, ‘The Scottish Universities in the Middle Ages, 1413‒1560’, unpublished PhD thesis (University of Edinburgh, 1959), but see also his William Turnbull Bishop of Glasgow, 1447‒1454 (Glasgow, 1951) and, with James Kirk, The University of Glasgow, 1451‒1577 (Glasgow, 1977), esp. ch. 4.

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Albertism, and the same agenda probably informed the foundation of both St Salvator’s College by Bishop James Kennedy in 1450 and Glasgow University by Kennedy’s close friend, Bishop William Turnbull, in 1451.16 It is tempting to see this as, on the one hand, imposing a more conservative scholastic curriculum in both arts and theology, and, on the other, nurturing a clerical class trained in law and fit for service in the royal bureaucracy. This would certainly lend weight to the suggestion that, in the 1460s and 1470s, there emerged an academic–clerical nexus of royal councillors that set about countering the potentially subversive politics of the conciliar movement with assertions of the crown’s ‘imperial’ sovereignty – a sovereignty that was symbolised in stone when in the early sixteenth century that former Glasgow student, distinguished lawyer and loyal servant of James IV, Bishop William Elphinstone, topped the steeple of the chapel of his new university foundation, King’s College, Aberdeen, with a closed imperial crown.17 This has taken us quite some way from John Duns Scotus and the Declaration of Arbroath. But it is an intellectual context that needs to be opened up, and explored in much more detail, if we are to identify the ways in which traditions of political radicalism developed in the late middle ages and were made available to the early modern world. The late J. H. Burns wrote extensively and with enormous erudition on Scottish conciliarism and its contribution to the literature on resistance with which Scotland became so closely associated in the sixteenth century.18 Yet, as he would undoubtedly have acknowledged, conciliarism itself needs a wider intellectual context that encompasses the political philosophy of the via moderna more generally. At the same time, exploration of the Scotist and Occamist traditions needs to go beyond the study of individual texts and their authors to an examination of what was actually taught in the fifteenth-century universities. This in turn will surely entail recognition of the fact that the via moderna did not go unchallenged in Scotland, that there were rival and often more powerful Thomist and especially Albertist camps, and that radical political views on popular sovereignty, consent and accountability could be matched by highly sophisticated arguments in support of the absolute and irresistible nature of monarchical authority. 16 Woodman, ‘Education and Episcopacy’, 53‒63. 17 Ibid., 64‒75; Roland Tanner, ‘James III (1460‒1488)’, in Michael Brown and Roland Tanner (eds), Scottish Kingship, 1306‒1542: Essays in Honour of Norman Macdougall (Edinburgh, 2008), 209‒31. 18 In addition to his True Law of Kingship, see especially ‘The conciliarist tradition in Scotland’, SHR 42 (1963), 89‒104; J. H. Burns, Scottish Churchmen and the Council of Basle (Glasgow, 1962). One of his last contributions to the field that touches on some of the themes explored here is ‘Political ideas and parliament’, in Keith M. Brown and Alan R. MacDonald (eds), The History of the Scottish Parliament, vol. iii: Parliament in Context, 1235‒1707 (Edinburgh, 2010), 216‒43.

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II In the later middle ages, arguments in defence of papal absolutism were conducted largely in theological terms or with reference to canon law. Temporal rulers, however, might turn instead to Roman law and the growing tendency to exploit the civilists’ doctrine that ‘the king is emperor in his own kingdom’ (rex in regno suo imperator est).19 Formulated by fourteenth-century jurists intent on defending the liberties of the Italian city-states against the encroachments of the Holy Roman Emperor, it was quickly seized upon by French civil lawyers anxious to assert the autonomy of the French monarchy in the face of papal claims to temporal as well as spiritual jurisdiction within the kingdom. From there, imperial ideas were transmitted to Scotland as well as England and, for the Stewart monarchy, provided firm ideological foundations for the belief – all the more pertinent in the light of the English crown’s age-old claim to feudal superiority over their kingdom – that they recognised no superior jurisdiction. If empire implied autonomy, however, the assertion of jurisdictional selfsufficiency might also imply something all but indistinguishable from absolute authority: not only did the crown’s imperial status mean that it denied the superiority of any external jurisdiction, but it also implied that it recognised no rival jurisdictions – lay or clerical – within its own territories. Thus when Henry VIII claimed in 1533 not only that the realm of England was an empire, but that he possessed ‘plenary, whole, and entire power, pre-eminence, authority, prerogative and jurisdiction’ over it, he was laying claim to an absolute sovereignty that was tempered only, if ironically, by being stated in the preamble to a parliamentary statute.20 The consequent tensions between crown and parliament, and the history of the peculiarly English doctrine of the sovereignty of the crown-in-parliament, need not concern us here. Rather what needs to be emphasised is the fact that contemporary Stewart monarchs were equally attracted to imperial ideas and, while they did not arrogate to themselves the full caesaropapal powers that Henry needed to arrange his own divorce, they were clearly well aware of the domestic as well as the diplomatic advantages of projecting an image of themselves as emperors in their own kingdom.21 19 For the juristic background, see Burns (ed.), Cambridge History of Medieval Political Thought, ch. 15 (2); on the development of the idea in Scotland, on which what follows draws heavily, see Roger A. Mason, ‘This realm of Scotland is an empire? Imperial ideas and iconography in early Renaissance Scotland’, in Barbara Crawford (ed.), Church, Chronicle and Learning in Medieval and Early Renaissance Scotland (Edinburgh, 1999), 73‒91. 20 On imperial ideas in England, see in particular J. A. Guy, ‘Thomas Cromwell and the intellectual origins of the Henrician Reformation’, in Alistair Fox and J. A. Guy, Reassessing the Henrician Age: Humanism, Politics and Reform, 1500‒1550 (Oxford, 1986), 151‒78. 21 This was particularly, though not exclusively, the case with James V: see Andrea

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Admittedly, still more than for Henry VIII, for Stewart kings such as James III (1460‒88), James IV (1488‒1513) and James V (1513‒42), absolute power was an aspiration rather than a reality. Nevertheless, it was an aspiration that generated an imperial ideology that needs to be taken into account when considering the increasing importance of a second source of radical politics from which sixteenth-century Scots could draw inspiration and example: classical republicanism. Just as with late medieval philosophy we need to consider the vitality of the via antiqua as a counterweight to the influence of the via moderna, so with regard to Renaissance culture we need to be aware of the attractions of imperial as well as republican Rome.22 For Renaissance monarchs, a variety of imperial role models were available – Augustus the Peace-maker, Justinian the Law-giver or Constantine the Christian warrior; while for those who were sceptical of the imperial ambitions of their monarchs, the more lurid examples of Nero, Caligula and Domitian sprang more readily to mind. As far as Scotland is concerned, this counter-point is perhaps best illustrated by the response of James VI to the republican politics of his erstwhile tutor, George Buchanan, and James’ development of a theory of imperial kingship that underscored the ‘free’ and ‘absolute’ authority of the Scottish crown. In doing so, he was deliberately invoking the imperial self-image of the Stewart dynasty that long predated the confessional and constitutional revolutions associated with the personal rule of his mother, Mary Queen of Scots, in the 1560s. Buchanan too, in justifying the deposition of Mary on the grounds of her egregious tyranny, could draw not only on the conciliar ideas of his former teacher, John Mair – though the extent to which he did so is debatable – but also on the classical spin imparted to the Scottish past by Hector Boece (c.1465–1536) whose Scotorum Historia (1527) was a prime source for Buchanan’s own Rerum Scoticarum Historia (1582). A friend of Erasmus, deeply committed to the humanist pursuit of eloquence, Boece wrote his chronicle at least in part as a riposte to the scholastic approach to the British past pioneered by Mair in his Historia Majoris Britanniae, tam Angliae quam Scotiae (1521). While Mair set out at some length arguments for the elective nature of monarchy and the rights of the people to restrain an errant ruler, he not only did so with great caution, but avowedly eschewed ‘elegant and highly-coloured language’ in favour of the syllogistic reasoning of which he was such a distinguished practitioner.23 Thomas, ‘Crown imperial: coronation ritual and regalia in the reign of James V’, in Julian Goodare and Alasdair A. MacDonald (eds), Sixteenth-Century Scotland: Essays in Honour of Michael Lynch (Leiden, 2008), 43‒67. 22 For background, see J. H. Burns (ed.), The Cambridge History of Political Thought, 1450‒1700 (Cambridge, 1991), Part I; Charles G. Nauert, Jr, Humanism and the Culture of Renaissance Europe (Cambridge, 1995). 23 For what follows on Mair and Boece, see Roger A. Mason, Kingship and the

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That he was also deeply sceptical of some of the sustaining myths of Scottish identity, while also putting a case for dynastic union between the Tudor and Stewart realms, did little to popularise his work in either Scotland or England. Boece, in contrast, heavily influenced by Livy, composed a history that was deliberately designed to entertain as well as edify its readers, that took over and grossly elaborated existing accounts of the Scottish kingdom’s antique origins and precocious development, and that presented a series of vivid portraits of early (and fictitious) Scottish kings whose tyrannical behaviour was met with concerted resistance by a virtuous aristocracy. It is by no means clear that Boece intended these examples of tyrannicide as constitutional precedents as opposed simply to moral examplars. What is clear, however, is that his chronicle combined pride in Scotland’s ancient and essentially martial heritage with a profound sense of responsibility to the public good. Such a commitment to res publica was undoubtedly shared by Mair, and it is possible to argue that in some respects, not least in his apparent desire to create a soldier–citizenry of lesser landowners, Mair shows evidence of indebtedness to contemporary strains of civic humanism far in advance of Boece. Nonetheless, it was Boece, through his enthusiastic and rhetorically effective blending of chivalric and civic idealism, who spoke more cogently to contemporary Scots. Indeed, his chronicle was almost immediately translated into the vernacular by John Bellenden (the translator also of the early books of Livy) and published in Edinburgh in the 1530s with a dedication to King James V. A noticeable feature of this translation is the frequency with which the term ‘commonweal’ is used, either on its own or in such compound phrases as ‘the commonweal and liberty of the realm’. The ‘commonweal’ was a recent addition to the Scottish political vocabulary, rarely used before 1520, but rapidly supplanting clumsier constructions such as the ‘common profit of the realm’ or ‘the welfare and public good of the realm’.24 Probably borrowed from England, and proving particularly appealing to Ciceronian humanists looking for an equivalent of the Latin res publica, it was more than capable of bearing the weight of civic and patriotic connotations with which Bellenden invested it. Moreover, in Bellenden’s usage, the ‘commonweal’ could mean, not just the welfare of the community, but the actual community whose welfare was at stake. However, while clearly intended to imply responsibility for the people, the idea of the ‘commonweal’ did not necessarily mean accountability to the people. The classical republican vocabulary of civic activism was by no means incompatible with monarchy and, particularly in northern Europe, was given Commonweal: Political Thought in Renaissance and Reformation Scotland (East Linton, 1998), chs 2‒3. 24 Ibid., 97‒8.

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a courtly spin that made service to the commonweal indistinguishable from service to the king. In Scotland, for example, the term occurs with some frequency in the poetry of the courtier Sir David Lindsay in the 1530s, and subsequently, in his Satyre of the Thrie Estaitis, first performed in 1552, came to be personified in the figure of John the Commonweal.25 For many modern commentators, when at a climactic moment of Lindsay’s drama John is warmly welcomed into the body of the three estates, this is evidence of Lindsay’s respect for the Scots’ ‘democratic’ traditions of political thought. However, leaving aside the fact that Lindsay was a courtier – indeed the guardian of aristocratic status and privilege as Lyon King at Arms – it will be clear to anyone familiar with sixteenth-century political discourse that the scene represents the three estates symbolically renouncing the pursuit of ‘singular profit’ and embracing instead a public-spirited commitment to the common good.26 That said, however, there is no doubt that in Lindsay’s writings there is evidence of unease when confronted with a situation where the inadequate exercise of kingship actually jeopardises the commonweal of the realm. This unease is never articulated in constitutional terms and no attempt is made to suggest that sovereignty lies with parliament (let alone the people), or that subjects may legitimately resist tyrannical rulers. Yet, within a few years of Lindsay’s death in 1555, it was on the grounds that they were defending the commonweal and liberty of the realm against French tyranny that in 1559‒60 the Lords of the Congregation justified rebellion against duly constituted authority and brought about a Protestant revolution in Scotland.27 By 1564, indeed, it was possible for the Protestant minister John Craig to inform the General Assembly of the new Protestant Kirk that ‘every kingdom is, or at least should be, a commonwealth, albeit that every commonwealth be not a kingdom’. George Buchanan could hardly have put it better himself, and in fact Craig went on to say, in terms more usually associated with Buchanan, ‘that princes are not only bound to keep laws and promises to their subjects, but also that in case they fail they justly may be deposed; for the band betwixt the prince and the people is reciprocal’.28 A former Dominican, Craig claimed to have heard these ideas expounded at the University of Bologna in 1554. In Scotland in the 1560s, though such ideas were clearly being discussed, they were hardly commonplace. Indeed, in 1567‒8, those who sought to over25 The best study is Carol Edington, Court and Culture in Renaissance Scotland: Sir David Lindsay of the Mount (Amherst, MA, 1994). 26 David Lindsay, Ane Satyre of the Thrie Estaitis, ed. Roderick Lyall (Edinburgh, 1989), esp. lines 3800‒3816. 27 Roger A. Mason, ‘Covenant and commonweal: the language of politics in Reformation Scotland’, in Norman Macdougall (ed.), Church, Politics and Society: Scotland, 1408‒ 1929 (Edinburgh, 1983), 97‒126. 28 John Knox, On Rebellion, ed. Roger A. Mason (Cambridge, 1994), 206‒8.

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throw Mary Stewart did so in the most conservative terms they could imagine, maintaining legitimate hereditary succession by insisting that Mary had abdicated voluntarily in favour of her son and heir James VI.29 Nonetheless, the revolutionary events of that decade, culminating in Mary’s enforced abdication, did lead Buchanan to explore in more detail the implications of Craig’s remarks. Thus in his De Iure Regni Buchanan fused his deep commitment to Ciceronian ideals of active citizenship with an essentially Aristotelian understanding of natural law to present a reasoned case for the sovereignty of the people and the accountability of kings (and queens) to laws enacted by the people.30 While it is true that there is some ambiguity in Buchanan’s definition of the people, it is hard to deny either that the De Iure presents the most thoroughly populist theory of resistance written in the sixteenth century, or that the tract culminates in a ringing endorsement of the right of any and every public-spirited citizen to kill a tyrant. That is, he advocated singlehanded tyrannicide – political assassination – in a manner that has long seemed both puzzling and unnecessary, but that Martin Dzelzainis has now shown to be a direct lift from Cicero himself.31 Be that as it may, in the present context, what is particularly noteworthy about Buchanan’s political theory is that there is nothing particularly Scottish about it. For all that he was ostensibly talking about kingship ‘apud Scotos’, his theoretical ideas on citizenship, consent, resistance and tyrannicide owed little or nothing to specifically Scottish sources but developed rather out of his direct engagement with the classical authors, both Greek and Latin, in whose works he was so thoroughly steeped. It is only when one turns to his history of Scotland, Rerum Scoticarum Historia (1582), published in the year of his death, and heavily indebted to the chronicle of Hector Boece, that one can begin to locate Buchanan within a distinctively Scottish constitutionalist tradition.

III The idea of an ancient Scottish constitution is one to which Buchanan alludes in the De Iure Regni, but it is marginal to the theoretical ideas expounded 29 A point reinforced by the new king’s coronation: see Michael Lynch, ‘Scotland’s first Protestant coronation: revolutionaries, sovereignty and the culture of nostalgia’, in Luuk Houwen (ed.), Literature and Religion in Late Medieval and Early Modern Scotland; Essays in Honour of Alasdair A. MacDonald (Leuven, 2012), 177‒207. 30 For a full analysis, see the introduction to George Buchanan, A Dialogue on the Law of Kingship among the Scots, a critical edition and translation of George Buchanan’s ‘De Iure Regni apud Scotos Dialogus’, eds Martin S. Smith and Roger A. Mason (Aldershot, 2004). 31 Martin Dzelzainis, ‘The Ciceronian theory of tyrannicide from Buchanan to Milton’, in Erskine and Mason (eds), Buchanan, 173‒87.

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there, and is only really set out in detail in his Historia. It is in this context that one might reasonably expect him to invoke the Declaration of Arbroath as exemplifying the constitutional principles that he claims to have been characteristic of Scottish political culture since remote antiquity. That he did not do so presumably means that he was unaware of it. Yet such ignorance did not prevent him from re-interpreting the long sweep of Scotland’s history, including the several fictitious centuries it owed to Boece’s enthusiastic inventiveness, in such a way as to lend massive historical legitimacy to the deposition of Mary Queen of Scots – an act (in Buchanan’s telling) of undoubted legality that took place according to principles of popular sovereignty and elective monarchy that had been adhered to by the Scots since the foundation of the monarchy by Fergus I in 330 BCE. In fact, in the Historia, Buchanan retreated from the vision of popular participatory politics set out in the De Iure Regni and, perhaps understandably in a work focused on the past, presented a more socially conservative view of a civic-minded nobility holding rulers to account. Another way of looking at the Historia, however, and the last of three strands of political thought with which this chapter is concerned, is to see Buchanan as combining the Scots’ traditional belief in the antiquity and continuity of their monarchy – essential to legitimising the kingdom’s independent status – with a decidedly pointed gloss on just as traditional a belief in the nobility’s role as the monarch’s natural born counsellors. In other words, a characteristic feature of late medieval Scottish political culture, as of other contemporary kingdoms and principalities, was a form of aristocratic conciliarism in which the ‘nobility’ – however defined – were understood to possess a political birthright that entailed both a duty to counsel the king and a responsibility to ensure the welfare – the commonweal – of the realm as a whole.32 Moreover, in times of crisis, when the king’s actions jeopardised the common good, the right to counsel the king might be supplemented by calls forcibly to resist and restrain him. In Scotland, responses to the perceived ‘tyranny’ of James I, James II and James III were sometimes articulated in constitutionalist terms.33 Nevertheless, it is striking that in fifteenth-century Scotland the right to counsel was very rarely reformulated in this way, while the more aggressively predatory kingship of 32 We are here entering territory that is very much Jenny Wormald’s own. My understanding of Scottish political culture has been profoundly influenced by her seminal writings, not least one of her earliest forays in the field (as Jennifer M. Brown): ‘The exercise of power’, in Jennifer M. Brown (ed.), Scottish Society in the Fifteenth Century (London, 1977), 33‒65. 33 Michael Brown, ‘“I have thus slain a tyrant”: The Dethe of the King of Scotis and the right to resist in early fifteenth century Scotland’, IR 47 (1996), 24‒44. More generally, see Roland Tanner, The Late Medieval Scottish Parliament: Politics and the Three Estates 1424‒1488 (East Linton, 2001), and Keith M. Brown and Roland J. Tanner (eds), The History of the Scottish Parliament, vol. i: Parliament and Politics in Scotland, 1235‒1560 (Edinburgh, 2004).

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James IV and James V never appears to have elicited a more aggressively ‘populist’ response. The secret may be that, on the one hand, many Scots actually appreciated the smack of firm government (provided that government did not tax them);34 while on the other hand, however imperial and imperious they liked to appear, both James IV and James V were successful monarchs precisely because they recognised the need for counsel and ‘consent’. Parliament – the three estates – was undoubtedly acknowledged to be the institution in which the community was most fully represented and where the king and community together made the law. Nonetheless, it was still possible for James IV to reign for extended periods and with considerable effect without summoning parliament at all. Instead, he made far greater use of less formal general councils (meetings of the nobility that could be called at relatively short notice) or enlarged royal councils – consultative bodies that were more or less representative of competing factional interests in the kingdom.35 There were, in short, a number of more or less formal mechanisms through which counsel could be offered to the king and, if in Scotland these were less well differentiated in their functions, and less bound by precedent, this is understandable in a kingdom where power was historically devolved to regional magnates, where the crown’s authority was relatively circumscribed (though by no means insignificant), and where a legal profession existed only embryonically and largely as an extension of the royal bureaucracy.36 Certainly, in the course of the sixteenth century, Scottish government became more intensive, central authority more intrusive, taxation more regular, the royal bureaucracy more specialised in the functions of its various departments, and a self-regulated and self-aware lay legal profession began to emerge. Yet this was less a ‘revolution in government’ than a series of haphazard responses to changing circumstances.37 As for Buchanan, Privy Councillor as well as parliamentarian that he may have been, so thin and imprecise are his descriptions of Scottish constitutional mechanisms, that counsel appears much more important than the councils through which it is 34 For this kind of approach, see Leslie Macfarlane, William Elphinstone and the Kingdom of Scotland, 1431‒1514: The Struggle for Order (Aberdeen, 1985); on the growing stature of the Stewart dynasty, founded on hereditary right, see Roger A. Mason, ‘Renaissance monarchy? Stewart kingship (1469‒1542)’, in Brown and Tanner (eds), Scottish Kingship, 255‒78. 35 Norman Macdougall, ‘The estates in eclipse? Politics and parliaments in the reign of James IV’, in Brown and Tanner (eds), The Scottish Parliament, vol. i, 145‒59. James V was similarly less reliant on parliament: see Brown and Tanner, ‘Introduction: parliament and politics in Scotland, 1235‒1560’, ibid., 22‒5. 36 For two important recent studies of law and the legal profession, see John Finlay, Men of Law in Pre-Reformation Scotland (East Linton, 2000), and A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009). 37 See Julian Goodare, The Government of Scotland 1560‒1625 (Oxford, 2004), esp. ch. 12, which addresses the Eltonian question: ‘A Stewart Revolution in Government?’

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offered and sought.38 This may simply be a recognition on Buchanan’s part of how deeply-rooted baronial conciliarism was in Scottish political culture, not just in terms of how kings maintained peace and justice throughout the kingdom, but equally in terms of how the aristocracy – lowland magnates as well as highland chiefs – maintained peace and justice in their regions by holding councils of their leading kin and clients. Informal, and leaving no written records, such meetings were nonetheless critical to the effective exercise of aristocratic power in the localities, and hint at the extent to which the apparently all-powerful authority of the heads of the great Scottish kindreds was circumscribed by the need to ensure the loyalty and support of their extended family and friends. As Wormald has herself put it: ‘References to people seeking the counsel of their kin and men are numerous, so much so that one gets the impression that no-one ever did anything without mulling it over first’.39 Seen in this light, Buchanan’s ancient constitutionalism may be no more than an idealisation of a highly traditional form of baronial conciliarism – as applicable to the crown as to the aristocracy – in which the quasicontractual basis of their authority – the tacit recognition of the need for consensus and consent – is restated in explicitly contractual terms. Quite clearly, this is not only a key area where political theory intersects with political practice, but is also one that needs a good deal of detailed research to flesh out both the actual workings of baronial conciliarism at local as well national level, and the extent to which it was informed by or developed in response to wider intellectual discussions of sovereignty and consent. On the face of it, it may seem more likely that influence and example flowed in the other direction, and that theorists rationalised existing practice. In recent Tudor historiography it has become commonplace to follow Patrick Collinson’s lead and talk of an Elizabethan ‘monarchical republic’, an expedient hybrid that, because of immediate and urgent issues of gender and the succession, combined commitment to monarchy with republican concepts of civic responsibility, consent and elective monarchy.40 Thus far Collinson’s idea has not been applied to Scotland, where arguably the issues raised by Mary Queen of Scots’ gender and the succession were every bit as pressing 38 As keeper of the privy seal (1570‒8), Buchanan was an ex officio member of the Privy Council and could have attended parliaments. However, if he was present at any meeting of the three estates, the extant parliamentary records do not note the occasion, while his involvement with the Privy Council was minimal. His political activities are discussed in Buchanan, A Dialogue on the Law of Kingship, eds Mason and Smith (2004), pp. xxxii–xlv. 39 Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985), 95‒6. 40 Patrick Collinson, ‘The monarchical republic of Queen Elizabeth I’, in John Guy (ed.), The Tudor Monarchy (London, 1997), 110‒34; John F. McDiarmid (ed.), The Monarchical Republic of Early Modern England: Essays in Response to Patrick Collinson (Aldershot, 2008).

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as those confronting Elizabeth’s councillors, and where in Buchanan’s De Iure Regni we find what is arguably the most complete and thorough-going defence of monarchical republicanism to emerge from the sixteenth century. How much traction such ideas had among the political elite is much harder to gauge. It is true that, by the time James VI began ruling his kingdom in person, a humanist education was the norm for the lay elite in Scotland, as it was in England, and some familiarity with classical republican literature such as Cicero’s De Officiis could probably be taken for granted.41 Nonetheless, it would be unwise to assume that royal courtiers and councillors were altogether comfortable as citizens rather than subjects. After all, these were intensely conservative, hierarchical societies in which honour, privilege and deference were prized rather than despised and where republican politics were seen as a grave threat to the status quo. It was only in extremis that ideas of elective monarchy would be invoked or that the nobility would seriously consider their rights as active citizens to trump their duties as loyal subjects. Not surprisingly, therefore, if Buchanan was at the heart of a British ‘republican moment’, it proved momentary indeed. James VI and I emphatically preferred subjects to citizens and, with the issues of gender and succession settled in both Scotland and England in 1603, it was possible to reassert the crown’s imperial sovereignty jurisdictionally, while glorying in it territorially. James also of course responded formally to what he saw as the threat to Stewart kingship posed by his former tutor’s political ideas and developed his own theory of the divine right of kings to counter them. Thus in the Trew Lawe of Free Monarchies (1598) he explicitly denied the historicity of Buchanan’s ancient Scottish constitution, insisting that Fergus I ruled by conquest rather than consent and that parliament was simply the king’s ‘head courte’ that existed (and legislated) at royal command.42 That said, however, although for James recognition of and obedience to his ultimate sovereignty were imperatives, his absolutism was tempered by awareness of the practical limits of royal authority. Like the more successful of his Stewart predecessors, at least during his personal rule in Scotland, James VI was clearly intent on including his ‘born counsellors’ in the processes of government, while recognising the importance of consultation through whatever conciliar channels seemed appropriate to the occasion. Alan MacDonald has recently compiled the astonishing statistic that between 1585 and 1603 the king summoned a convention of the three estates on average every three months – a remarkable level of consultation with which his tutor might well have been fine pleased.43

41 See Keith M. Brown, Noble Society in Scotland: Wealth, Family and Culture from Reformation to Revolution (Edinburgh, 2000), 196‒201. 42 James VI and I, Political Writings, ed. Johann P. Somerville (Cambridge, 1994), 62‒84. 43 Alan R. MacDonald, ‘Consultation and consent under James VI’, Historical Journal 54 (2011), 287‒306.

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IV This story does not of course end with James VI’s removal to London in 1603. On the contrary, just as over the ensuing decades the union of the crowns led to acute constitutional strains both within and between the Stewarts’ multiple monarchy, so it created crises of counsel and consent that came close to destroying it altogether. Space precludes further consideration of how these themes worked themselves out in the seventeenth century. Likewise, it is not possible to explore the additional modes of thought, not least the intense Biblicism that became characteristic of post-Reformation Scotland, and that helped shape Scottish responses to absentee monarchy and a kingless kingdom. Nevertheless, what should be clear enough already is that, if late medieval Scotland did not after all incubate modern democracy, if the Declaration of Arbroath is notable only for its absence, the political culture of late medieval and early modern Scotland is no less rich and interesting for that.

chapter 13

Royal Gifts and Gift-Exchange in Sixteenth-Century Anglo-Scottish Politics FELICITY HEAL In the eleventh chapter of the first book of Leviathan, Thomas Hobbes considers men’s social behaviour and its relationship to power. One of the most important issues is that of giving and receiving benefits. When men receive greater benefits from an equal than they can readily requite it ‘disposeth to counterfeit love’, but breeds actual hatred because benefits oblige, and obligation ‘is thraldom’. On the other hand, if requital can be made, then there is a positive affirmation of affection, and the acceptance of mutual aid and benefit.1 Earlier Hobbes links this explicitly to the process of gifting: to give great gifts to a man, is to honour him; because it is buying of protection and acknowledging of power. To give little gifts is to dishonour; because it is but alms, and signifies an opinion of the need for small helps.2

Gratitude, the response that must be generated by freely proffered gifts, would be his fourth law of nature, one of the key means of endeavouring peace within a commonwealth.3 Hobbes was relating gift exchange to the need to move a group of men from a state of nature into a civil society. This may appear to have little to do with relations between realms, specifically here between Scotland and England in the preceding century. But Hobbes’ understanding of honour, and his insistence on the centrality of gifts and gratitude in endeavouring peace, offer a valuable starting point for the investigation of inter-state relations in the sixteenth century. Elements of a state of nature, with naked competition and the absence of constraining political structures, exacerbated by the collapse of religious consensus, certainly existed in early modern Europe. However, the development of diplomatic structures, and an increase in regular contact between rulers, provided a countervailing influence which, while it certainly did not always promote peace, offered the opportunity to evaluate the 41 Thomas Hobbes, Leviathan, or the Matter, Forme and Power of a Commonwealth, ed. Michael Oakeshott (Oxford, 1960), 65. 42 Ibid., 58. 43 Ibid., 99.

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intentions of their peers. Hobbes offers a powerful reminder that the pursuit of peace, whether within or between states, might be a matter of ruthless selfinterest, but that it had to be articulated in symbolic form to persuade men to action. And there were few forms of behaviour that so effectively combined the symbol and substantive interest so effectively as gift exchange.4

I Gift giving between rulers was a crucial part of proper royal performance, acknowledging status and signalling bonds. However, its description is usually subordinated to other matters in the rapidly growing body of diplomatic reports in this period. Home governments were understandably most actively concerned about the military and political intentions of their neighbours and rivals, the risks of war and the possibilities for alliance. Resident ambassadors fed these concerns with their constant flow of information about the internal, often factional, politics of the court to which they were assigned. In the case of England and Scotland the deep hostility between the nations, the lengthy periods of royal minority in Scotland, and the issue of succession to the English throne all added fraught dimensions to diplomatic exchange. Tudor attitudes to Scotland and its rulers ran the gamut from indifference to expansionist ambition; from overt aggression to grudging accord. The Stewarts responded in kind, though indifference was hardly a viable option given such proximity to a larger power. In following the narrative tales generated by these political concerns it is easy to neglect those performative aspects of exchange that were of great significance to early modern monarchs: the gestures that articulated honour and were an external test of authority. Proper behaviour of this kind was particularly important for Scotland’s rulers. Their pursuit of what Jenny Wormald has described as a ‘pushy and self-assertive role’ on the European political stage depended upon political skills underscored by symbolic gestures.5 Royal marriages, renaissance buildings and a rich court life all contributed to the enhancement of their image.6 To give, and indeed to receive, properly, were also crucial attributes for Scots rulers. There were the long-established forms of largesse that must be given to subjects. 44 Much of the most useful literature on the gift in sixteenth-century culture is brought together in Natalie Z. Davis, The Gift in Sixteenth-Century France (Oxford, 2000). 45 See particularly Jenny Wormald’s comments in the introductory section of Court, Kirk and Community: Scotland, 1470‒1625 (London, 1981), 4‒6. 46 Lorna G. Barrow, ‘“The kynge sent to the Qwene by a Gentylman, a grett tame Hart”: Marriage, gift-exchange and politics; Margaret Tudor and James IV, 1502‒13’, Parergon 21 (2004), 65‒84; Janet H. Williams (ed.), Stewart Style, 1513‒1542: Essays on the Court of James V (East Linton, 1996); Andrea Thomas, Princelie Majestie: The Court of James V of Scotland, 1528‒1542 (Edinburgh, 2005); Julian Goodare and Michael Lynch (eds), The Reign of James VI (East Linton, 2000).

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When James VI came to pen his advice to his heir it was on these that he focused, urging in Ciceronian terms that Henry ‘use true Liberalitie in rewarding the good, and bestowing frankly for your honour and weale’.7 But there were also the exchanges with other rulers, with whom there was a claimed equality. In the case of Anglo-Scottish giving the disparity of resources and the old enmities were always likely to generate problems. English monarchs were usually disposed to pursue honour and status in their relations with the Valois and Habsburgs rather than with the Stewarts, so there was a likely asymmetry in cross-border exchanges. Yet the undeniable strategic importance of Scotland ensured that in times of peace there was a northwards flow of promises, gestures and threats, a dialogue conducted in gifts as well as words. The honourable behaviour of monarchs was judged as much by giving proper rewards to messengers and ambassadors as by direct exchange. This almost automatic assumption about offering thanks for service rendered acquired new significance as diplomatic exchange increased. It also became more sensitive politically. Ambassadors who resided longer in their host countries than in the past had to avoid excessive entanglement in local politics, and at the same time came to expect reward from the monarch to whom they were accredited commensurate with their own ruler’s significance. In the case of Anglo-Scottish diplomacy missions were still episodic in the first part of the sixteenth century, neither distance nor political interest requiring longterm residence. James IV’s negotiation of the 1502 Treaty of Perpetual Peace with England, and his ensuing marriage with Margaret Tudor, provide the first instance of significant ambassadorial exchange.8 It was consistent with James’ perception of honour that he should then treat emissaries well. Those who came north for the wedding were given silver vessels and French crowns; even the task of carrying late instalments of the dowry benefited William Cope of Henry VII’s chamber with a great gilt standing cup.9 Henry VII made similar gestures to James’ diplomats who negotiated the Treaty; Edward Hall relates that they left London ‘not without great rewardes’.10 Even when negotiations were fraught, largesse had to be displayed: Nicholas West and Lord Dacre of the North, who left Scotland in 1512 after unsuccessful attempts to prevent the resumption of the ‘auld alliance’, were rewarded with silver flagons, a splendid cup with gold decoration and six great silver pieces.11 This 47 James VI and I, Basilikon doron. Or His Maiesties Instructions to his Dearest Sonne, Henrie the Prince (London, 1603), 98. 48 Norman Macdougall, James IV (Edinburgh, 1989), 155, 248‒51, 256. 49 TA, ii, 373‒4, 386; Rymer, Foedera, xiii, 119. I owe this latter reference to the kindness of Dr Steven Gunn. 10 Edward Hall, The Union of the Two Noble and Illustre Famelies of Lancastre and Yorke (London, 1550), Henry VII, fo. 54r. The ambassadors sent a specific letter of thanks for their reception to Henry VII: Rymer, Foedera, xiii, 54. 11 TA, iv, 348, 533.

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was not, of course, a peculiar privileging of Henry VII’s agents; a few years earlier James had rewarded the papal ambassador who brought him the sword and cap blessed by Julius II with a shower of French crowns, a great gilt cup and two flagons in cases.12 Occasional largesse of this kind was costly, though James, like other Scottish rulers, expected that great subjects would pay their share when necessary. So the gifts to West and Dacre came in part from the earl of Moray, and those for the papal ambassador from the bishop of Ross and James Merchiston.13 At the other end of the century James VI was still rewarding favoured embassies with rich chains lifted from his subjects: in 1586 the Danish ambassador was given a great gold chain, ‘which’, says Sir James Melville, ‘he had got from Sir James Balfour’.14

II By the time of James V’s majority, and especially from the 1530s, it became necessary to handle Anglo-Scottish affairs through the dispatch of more regular embassies. This gradually produced an expectation, almost in the end a tariff, of proper reward at the end of a mission. The ‘tariff ’ addressed both the status of the prince who had sent it and the nature of the mission. Melville, discussing this late in the century, drew a distinction between official messengers and those with full ambassadorial credentials. Messengers announcing the birth of Prince Henry did not command reward, but had ambassadors been sent express they would have had a claim to the ubiquitous gold chain that monarchs routinely gave.15 But difference was also marked by the success or otherwise of the embassy. The Scots gave Sir Peter Mewtas a gold chain that cost £400 Scots in 1561, at a time when English support was vital to the Lords of the Congregation. Sir Henry Killigrew, key ambassadorial support of the King’s Party during the siege of Edinburgh Castle in the early 1570s, was given a rich range of silver plate valued at £320, and a gold ring valued at £360.16 On the other hand in 1534 after peace negotiations the English ambassador Archdeacon Thomas Magnus was only given £200, and the only reward noted for Ralph Sadler’s rather ineffectual missions is an early gift of sixty crowns when he brought messages in 1538.17 The Scots who conducted business at the Tudor court were treated in an equally variable manner. A gold chain was certainly given on occasion: 12 13 14 15 16

Ibid., iii, 380. Ibid., iv, 348, 533. The Memoirs of Sir James Melvil of Halhill (Edinburgh, 1735), 332‒3. Memoirs of Melvil, 405. CSP Scot., i, 163; TA, xi, p. xxi; xii, 350. All pound values refer to Scottish currency unless otherwise specified. 17 TA, vi, 232.

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Melville describes how one was placed on his neck by Sir William Cecil after his 1564 mission.18 Special friends might merit special rewards: the 328 ounces of plate given to William Maitland of Lethington in 1564 was only slightly less than the parallel gift to the French ambassador, whose status was inherently higher.19 On the other hand, when official petitioners came thick and fast, as they did in the 1570s and 1580s, usually seeking financial aid, there seems to have been less generosity. In 1585 David Lindsay and George Young, sent by James VI to plead for money, were given only fairly modest gilt bowls, that for Lindsay weighing only seventy-one ounces.20 And in 1578 an embassy seeking aid for James VI was, Thomas Wilson reported to Sir Francis Walsingham, so far from getting its objective that it was sent away without any reward.21 Such offensive behaviour mattered deeply to ambassadors, who always had a struggle to make their missions financially viable, and who were endlessly watchful about the rewards given to other representatives.22 But the Scots seem to have been particularly sensitive to the threat of dishonour in dealing with England.23 Even the rumour of such behaviour raised anxieties, and when a powerful noble such as the earl of Moray was treated without generosity it was interpreted as a public slight. When he visited Elizabeth in 1562 it was observed that, for all the welcome he was offered, ‘he had no present … onles it were a licence to cary into Scotlande of geldings’.24

III Ambassadors represented their monarchs, and had to be treated with honour. But when kings themselves exchanged gifts there had to be an even greater 18 19 20 21

Memoirs of Melvil, 102. TNA, C47/Bundle 3/38. BL, Egerton MS 3052. CSP For., xiii, no. 141. This was not unique to the English: in the 1520s Patrick Wemyss served as ambassador from Scotland to France and had to be rewarded by James V since he ‘got no reward thair’: TA, v, 330. 22 See, for example, Thomas Randolph’s breathless reporting of the largesse to the Swedish embassy to Scotland at its departure in 1562, ‘ii Eayer basins and eavers, ii broode cuppes and two standing peeces of silver’, plus chains for the entourage: CSP Scot., i, no. 1111. 23 It was observed that John Colville had not been rewarded in 1589. However, he thanked Burghley for some specific favour that suggests a present: HMC, Calendar of the Manuscripts of the Marquis of Salisbury, 24 vols, eds S. R. Scargill-Bird et al. (London, 1883‒1976), iii, no. 929; William Murdin (ed.), A Collection of State Papers Relating to Affairs in the Reign of Elizabeth, 1571‒1596 (London, 1759), 638. 24 BL, Add. MS 35831, fo. 32, though Moray himself used ambiguous language about the horses, thanking Dudley for his remembrance in providing ‘of her hienes hacquenciis’: BL, Add. MS 35125, fo. 10.

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sensitivity to issues of parity and reputation. William Asheby, one of Elizabeth’s ambassadors to Scotland, caught this nicely when he told Burghley in 1589 that food gifts from the English Marches for James VI’s wedding feast should come as offerings from neighbours, not ‘in the manner of a prince’s present, which, consisting of complementes of that nature, it might seme nether honourable for her majestie to offer, nor for this King to receave’.25 The most obvious circumstances for the gift were grand ceremonies: marriages, christenings and formal treaties. Under James IV this meant the prime expression of Anglo-Scottish relations: his marriage to Margaret Tudor. Margaret, like any bride, can be construed as herself the supreme gift to her husband, and in this alliance she was both a spouse and a symbol of the ‘Perpetual Peace’ between the two realms.26 Her dowry also gave significant fiscal freedom to her spouse, increasing his flexibility in pursuit of foreign policy and domestic control.27 The more symbolic gifts from Henry VII reminded James that this was an alliance of lineage and blood: a painter called Mynours was sent from London with portraits of Henry VII, Elizabeth of York, Prince Henry and Margaret herself. He may well have returned with a painting of James, now existing only in a seventeenth-century copy.28 James’ reciprocal gifts to his bride were jewels, and the pageants to celebrate her coming as the harbinger of peace. The latter included a hart, representing the idea that Margaret gave the heart that would tame him to fidelity.29 But James’ heart was neither faithful nor particularly committed to the Perpetual Peace, and, as he had been in the 1490s, so in the years before Flodden, he was for the ‘auld alliance’ and a wider European role. On the road to Flodden it was these other allies who sought to woo him with gifts. In 1511 Anne of Brittany more directly used her gift of 14,000 French crowns and her own ring to persuade him to alliance against the English.30 The impression given by James IV’s treasurers’ accounts is that giving to other monarchs was normally reserved for grand moments of alliance. When his son came of age in 1528 things were different. Public celebration of grand prestations still occurred, most notably at the time of the two French marriages, which were the vigorous affirmation of the continuity of the ‘auld alliance’ and the culmination of a remarkable diplomatic effort. The gift first of the French king’s daughter Madeleine and then of Mary of Guise, brought James V the remarkable dowries of £168,750.31 Since the King actually 25 26 27 28 29 30 31

CSP Scot., x, no. 239. Barrow, ‘Marriage, gift-exchange and politics’, 70. Macdougall, James IV, 155. TA, ii, 82‒3; Thomas, Princelie Majestie, 83. Barrow, ‘Marriage, gift-exchange and politics’, 76‒8. Ibid., 83. Jamie Cameron, James V: The Personal Rule, 1528‒1542 (East Linton, 1998), 261; cf. Margaret’s dowry, worth approximately £35,000. The English Ambassador to France

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married Madeleine in person on 1 January 1537 in Paris his reciprocity could take the form of lavish gifts proffered publicly at the New Year and at his departure – great cups of gold to Francis I and his Queen, and a lesser one to the Grand Master of France, gold swords and scabbards for the Dauphin and the King of Navarre, and gold jewellery set with precious stones for the royal family. Francis, with his much greater wealth, was able to return in kind, giving a short sword plastered with diamonds, emeralds and rubies, and, for good measure, guns and armour.32 The gold and jewellery may also have been a defence of a kind against the obligations of alliance: James displayed his gratitude through giving, and presumably in so doing sought to retain his freedom of political action. An even more explicitly political offering of these years was the papal donation of the sword and cap, given to James while he was in France in 1537. The Venetian ambassador in Rome observed that it was a result of the Scottish king’s offer to ‘march against the King of England’. The papacy asked no ceremonial counter-gift: the return was to support the Church.33 The papal donation was only one form of honorific gift laden with political intent. In 1532 James was the beneficiary of an Imperial desire for alliance and was invested with the chivalric Order of the Golden Fleece. This was done with full public display in St Andrews Cathedral, offering the King the opportunity to affirm the importance of Scotland and its ruler.34 The logic for Henry VIII was to use the Order of the Garter as a counter-weight offering in 1535 when he was seeking better Anglo-Scottish relations.35 James was eager enough to receive the status gift, and indeed was so keen to complete a hat trick of the key chivalric orders that he made the acquisition of the French Order of St Michael a condition in his marriage negotiations.36 At least two uses were made of the chivalric gifts. Most obviously they were to demonstrate James’ equality with his fellow monarchs. The badges of the Orders were carved in stone at Linlithgow; the King had collars made for them and urged Lord Erskine, who received the Garter, to ensure that the Scottish stall at Windsor was next to the French one ‘amangis kingis’.37 He may even have sought to delay his installation until he could present Henry with his own

32 33 34 35 36 37

commented that he did not think the King of Scots had ever seen so much money gathered together: L&P Henry VIII, xii, 1305. TA, vii, 7, 14, 31. Charles Burns, ‘Papal gifts to the Scottish monarchs: the Golden Rose and the Blessed Sword’, IR 20 (1969), 150‒94. Patrick C. Hotle, Thorns and Thistles: Diplomacy between Henry VIII and James V, 1528‒1542 (London, 1996), 86; L&P Henry VIII, viii, 429. James V Letters, 285. James V Letters, 318. Raphael Holinshed, The Chronicles of England, Scotland and Ireland (London, 1587 edn), vol. 5, 319; James V Letters, 297.

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Order.38 Reception of the Orders could also be manipulated to signal variations in royal favour: the Imperial ambassador Eustace Chapuys, whose interest lay in denigrating English diplomatic overtures to the Scots, reported that the Garter had not been greeted with the full public ceremonial that had attended the reception of the Golden Fleece.39 And when James expended 100 crowns for a chain for the St Michael in 1538, he spent only 20 on the chain for ‘ane uther ordour’, unfortunately not specifying which it was.40 James was a renaissance prince in his taste for grandeur and display, but also in his desire to emulate his fellow rulers. This involved comparison and dialogue sustained by regular embassies and in part by the flow of gifts less dramatic than those already discussed. The form of giving and receiving most dear to his heart was equipment for the hunt. The treasurers’ accounts for the 1530s are replete with payments made to servants travelling to France or England with hawks, or receiving horses sent in return. A couple of examples must suffice: in 1534 Edward Stewart, falconer, was given his expenses to travel to London with three hawks for Henry VIII.41 In the previous decade Robert Gib was given a reward for riding the great horse that came from the King of France.42 Good horses were always in short supply in Scotland, while hawks could readily be captured, so James usually hoped to prompt the generosity of his fellow monarchs by offering birds. At the end of 1541, for example, he sent his ambassador in France thirteen falcons: twelve were duly presented to Francis who, placed under gift obligation, reciprocated with ‘eight fair gyr falcons’.43 Presents were sometimes accompanied by letters of lavish compliment: in 1535 James sent Henry hawks from Orkney and Shetland, talking of the ‘confederation and mutuall ligue’ between them and insisting that anything else found in Scotland was at his uncle’s disposal.44 By the late 1530s James predictably favoured the French crown over the English in these gift dialogues, but his cautious policy of avoiding conflict meant that he maintained his English contacts until very close to the final crisis of the reign. When those hawks were sent to France in 1541 he also made sure some went to England: Henry was sent ten, and considerable care was lavished on their accoutrements.45 James no doubt understood that it was more blessed, or at least more liberating, to give than to receive. But his desire for good horses was over38 There is uncertainty about whether James had established a chivalric Order; see Katie Stevenson, ‘The Unicorn, St Andrew and the Thistle: was there an order of chivalry in late medieval Scotland?’ SHR 83 (2004), 3‒22. 39 L&P Henry VIII, viii, 429. 40 TA, vii, 39. 41 Ibid., vi, 211. 42 Ibid., v, 311. 43 L&P Henry VIII, xvi, 1288. 44 James V Letters, 300. 45 TA, viii, 24, 30.

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whelming, and at times placed him under considerable obligation to the English King. In 1539 his servants identified a particular gelding owned by Lord Wharton, and sought it for James. Wharton demurred and asked Henry’s approval; Henry agreed and promised other geldings.46 Ralph Sadler was then sent north on a difficult mission to secure the pro-English influence at the Scottish court, with the apparently ideal gift of six horses and geldings. His report on his, and their, reception reveals both the rituals of gift exchange, and the problems associated with this apparently simple part of the embassy. At Sadler’s first interview with the King the horses had not yet arrived, so the ambassador had simply to carry the assurances of his master’s goodwill. Then they arrived, but needed time to rest and to be groomed and ‘trimmed’, while James expressed impatience to see them. When they were ready James insisted on formality ‘because the lords should see your majesty did not forget him’. So on a Sunday after the sermon James stood with his court at a window, looking down on the horses being put through their paces by the English groom Christopher Erington. Sadler provided a running commentary on their qualities, evoking the royal response ‘I like them the better, because they be of mine uncle’s own brood’. But all was not well, and Sadler’s heart must have sunk when James observed that the barbary would have been more valuable had it been bigger. The King then recovered the moment by glowing praise of Henry’s friendship, alleging that he would find anything to pleasure his uncle ‘if I can get it betwixt this and the farthest part of Turkey’. And finally, turning to his court, he praised the horses, constraining his followers to do the same.47 Sadler was confident that much of this exaggerated enthusiasm for the gift was designed to impress on the Scottish court the value James placed on the friendship of the English King. James’ reaction provided a check on those elements among the elite, who were energetically promoting French interests. Their reception revealed both the possibilities and limitations of gift dialogue. Horses were thoroughly acceptable as the opening gambit of a diplomatic initiative: they obliged the King to speak fair and to display gratitude. The generous token indicated understanding of royal needs, and yet another affirmation of equality with the English King, while being definable only as a personal gift between two loving cousins. But endeavouring peace also needed successful negotiation, and Sadler’s mission was not a success, partly through English misjudgement, partly because James was still in the afterglow of his marriage alliance. At one point in the negotiations he remarked to Sadler that if he did not have enough to live on ‘my good father the king of France … will not see me wont anthing’.48 The great gift easily eclipsed the small, and diplomacy painstakingly built upon personal affinities slowly unravelled. 46 James V Letters, 385. 47 A. Clifford (ed.), The State Papers and Letters of Sir Ralph Sadler, knight-banneret, 2 vols (Edinburgh, 1809), i, 21, 39‒41. 48 L&P Henry VIII, xii: II, 1313.

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IV The kingly gift dialogue of James V, Henry VIII and Francis I was not fully replicated in the second half of the sixteenth century. There were, however, a few moments when the Scottish crown could expect grand prestations from the English. Most important were the christening gifts for Prince James in 1566 and to his oldest son in 1594. In each case Elizabeth was godmother and sent one of the nobility to personate her – the earl of Bedford for James’ christening and the earl of Sussex (after some delay) for Henry’s. In 1566 the Queen offered an extraordinary golden christening font; in 1594 what Melville described as ‘a great shew’ – a cupboard of silver gilt with some cups of ‘massy gold’. In both cases an objective was to outshine other gifts.49 The Venetian ambassador in London reported in 1566 that the font, valued at 5,000 crowns, was considered more remarkable than the jewellery sent by Charles IX, or the fan offered by the duke of Savoy.50 The gifts articulated in public the identity between monarchs, expressing the proximity of the Scottish princes to the English succession. Christenings, and the marriage of James VI and Anne of Denmark, were the only occasions for such dramatic largesse. But gifts remained a key part of Anglo-Scottish political dialogue even when given and received only within the routines of courtly exchange. For example, Mary Queen of Scots sought in the period following her return from France to woo Elizabeth, with alliance and a personal meeting as her objectives. Early in 1562 Mary began her campaign by sending Thomas Randolph, the English ambassador, a cup of gold, using the offering to reinforce her desire for perpetual amity with Elizabeth. Mary also requested a picture of her ‘fair sister’ – a standard move in actual royal wooing in this period.51 A few days later Mary was assuring Randolph of the importance of the picture but ‘yt wyll not contente my harte untyll I have bothe seen her and spoken with her’.52 By the summer of 1562 the gestures acquired more urgency: Maitland had returned from his English mission with Elizabeth’s portrait, and in July Randolph was told that Mary had a ring with diamonds in a heart shape upon it, to be sent to England as a counter-gift, along with some verses to express her meaning. Meanwhile, he was assured, Mary was keeping her sister’s letter to her in her bosom, a place for the secret gift that must nevertheless be displayed to gain true worth. They also exchanged poetry in a display of learned one49 Memoirs of Melvil, 407. 50 Calendar of State Papers and Manuscripts Relating to English Affairs, Existing in the Archives and Collections of Venice, 38 vols, eds R. Brown et al. (London, 1864‒1940), vii, 386‒7; Rayne Allinson, ‘Queen Elizabeth and the “nomination” of the young prince of Scotland’, Notes and Queries 53 (2006), 425‒7, at p. 425. 51 CSP Scot., i, no. 1077. 52 Ibid., i, no. 1083.

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upmanship.53 The diamond ring was dispatched with verses by Buchanan, and both were received with some publicity at the English court. John Jewel, bishop of Salisbury, heard about the magnificent diamond and acquired a copy of Buchanan’s verses. Jewel remarked darkly to Josiah Simler, his Swiss correspondent, that he would see from the text the truth of the saying ‘he who knows not how to dissemble, knows not how to govern’.54 In another letter he told Heinrich Bullinger that this was all a ploy to divert ‘attention … from the noise of war’, and lull Elizabeth into a false sense of security.55 During the following year relations between the two queens cooled rapidly. But Mary retained some hopes of her dear sister and chose to signal these through the mode of her acceptance of a gift from Elizabeth. In December 1563 Randolph proffered her a jewelled ring, probably as a new year present, rehearsing the conventional sentiment that it conveyed the mind of the sender rather than the value of the offering. Mary chose to make her reception of the ring a moment of high drama, insisting on all those present in her chamber commending the gift, and claiming that it was one of the two jewels ‘I have that muste die with me’, the other being her ring from her former husband Francis II.56 Two could play this courtly game: when Melville went to the English court in 1564, Elizabeth produced Mary’s picture that she had received earlier and kissed it with ostentatious affection. She also dangled ‘a fair ruby, as great as a Tennis-ball’ before the ambassador, but only to say that if Mary would follow her counsel, she would in time get all that she had. Then Elizabeth promised a diamond as token for his mistress, though Melville’s account suggests that he did not actually receive it.57 Elizabeth might appear to be staging a set of appropriate gestures to her Scottish rival. But Mary seems to have retained more faith in gifts. After her flight to England she regularly worked gifts of needlework for those with influence, including the queen. In 1574 she made an offering of a skirt of crimson satin, which the French ambassador reported was a very agreeable gift that, he believed, had much softened Elizabeth towards her.58 Elizabeth was indeed susceptible to pretty gifts of jewels and clothing, though surely she never regarded them as occasions to change her political calculations.59 While Mary’s attachment to the persuasive power of gifts represents miscalculation, then the attitude of the Elizabethan regime to the young 53 Ibid., i, no. 1116. 54 Hastings Robinson (ed.), The Zurich Letters, 1558‒1579, 2 vols (Cambridge, 1842), i, 120. 55 Ibid., i, 115. 56 CSP Scot., ii, no. 41. 57 Memoirs of Melvil, 97. 58 Margaret H. Swain, The Needlework of Mary Queen of Scots (New York, 1973), 82‒3. 59 Jenny Wormald, Mary Queen of Scots: A Study in Failure (London, 1988), stresses Mary’s misjudgements in her reading of Elizabeth.

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James VI shows that miscalculation was not the unique prerogative of the Scots. Henry VIII had appeared to treat James V as an equal sovereign, at least in performative acknowledgement of his claims. It was not always so for James’ grandson. The Scottish Reformation, the loss of the French alliance, the Marian crisis and the royal minority led the English regime to regard Scotland as a far less pressing threat to security than its Continental adversaries. In these years, as indeed earlier, gifts from England often meant payments to various kinds of the assured Scots who would promote alliance and interest. ‘In all ages’, said a report of 1584, ‘when the kings of England could not be assured of the favour of the kings of Scotland, they entertained some of the nobility of Scotland to be their friends’.60 When attention was focused on friends and alliances, a monarch in his minority was easily undervalued. In 1578 Randolph was sent north to intervene in Scottish affairs, and to distribute ‘her Majesty’s liberality’ among the ‘best affected’. Some courtly gesture was needed to the twelve-year-old prince, and Walsingham told the ambassador that the ostensible purpose of his visit was to be the giving of a present. But this was to be neither ostentatious nor costly: a present ‘meate for his yeares’, something like a dagger or rapier that could readily be bought in London. Jewellery was not allowed, because such a present would have to be costly and finely made ‘(whereunto her Matie I feare wyll not be browght)’.61 If such a miserly attitude to proper kingly gestures was thought acceptable in James’ minority, it was clearly unwise once he came to power. There was momentary anxiety when, in 1582, the duke of Guise sent James a gift of horses, which the English ambassador to France feared might conceal gunpowder. Perhaps, but surely the key here is that France was recognising James’ majority by proper gifting, and it is important that the king immediately replied in kind sending the customary hawks.62 It was only in 1585 that the English regime caught up, and even then Melville suggests that they did so in a cynical spirit. When in that year the queen sent Edward Wotton as her ambassador, Melville suggests that his main duty was to accompany the king in hawking and hunting, distracting him with ‘friendly and merry Discourses’ from the business of state.63 Wotton himself certainly related his mission to the importance of gifting; he was thrown into panic on his way north because 60 CSP Scot., vii, no. 84. On the assured Scots, see Keith M. Brown, ‘The price of friendship: the “well affected” and English economic clientage in Scotland before 1603’, in Roger A. Mason (ed.), Scotland and England, 1286‒1815 (Edinburgh, 1987), 139‒62. 61 BL, Harl. MS 6992, fo. 45. In 1573 the French ambassador in London had requested Burghley’s permission to send Monsieur Verac to Scotland on the excuse that the French King wished to send a little gilt suit of armour to his nephew. Verac was arrested and prevented from leaving England, blaming Regent Morton for his troubles: CSP For., x, nos 869, 912. 62 CSP For., xvi, no. 150; xviii, no. 225. 63 Memoirs of Melvil, 317. Melville’s comments should be treated with caution because of his hostility to Wotton from earlier encounters in France.

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James anticipated a gift of hounds he claimed Elizabeth had promised. If the dogs did not arrive promptly and in good order ‘the want of them might bred contempt, which the adverse partie would work upon’.64 Fortunately for Wotton, horses were already on their way to the Scottish court and all was sufficiently well for James to pen a fulsome letter of gratitude to Elizabeth.65 However, the tone of an English note working out what should be sent indicates that the Scottish king was being amused with baubles, rather than treated with full honour. The note is headed: ‘memoir of certain small pleasures for the king of Scotland’, and lists horses, bow staves and buckhounds. Would gifts to France or Spain have been so noted?66 By the time that James’ buckhounds had been run into the royal leash he had already shown his determination to be an independent ruler – first by his favour to Esmé Stewart and the French, and subsequently by his cautious approaches to the Spanish.67 Elizabeth responded with her distinctive correspondence, containing warnings, anger and persuasion, but in the end with the key promise of money. The formal arrangements for regular subventions were concluded in the aftermath of the Anglo-Scottish Treaty of 1586, and remained essentially the same until the union of the crowns. Payments rarely rose above £4,000 sterling per annum, though Elizabeth’s first plan was to offer £5,000: even so they constituted about a sixth of James’ annual income.68 Since Julian Goodare has covered the issue in detail there is no need here to retrace the convoluted story of the giving, manipulating and sometimes withholding of payments. But the language and gestures of exchange are examined here in the light of the need for both sovereigns to appear independent and honourable in their dealings with one another. The prevailing orthodoxy about the relationship between James and Elizabeth seems to be that the Scottish monarch played a very canny game with his dear cousin. As early as 1581 the Queen had been driven in exasperation to call him an ‘urchin’, and there were many moments when her anger flared against what she saw as his duplicity.69 James needed money: the queen, or her government, had the even greater need of him as guarantee of the Protestant succession. There was in practice little that Elizabeth could do to influence the specifics of Scottish government, even for example to ensure 64 TNA, SP52/37, fos 46, 48. 65 John Bruce (ed.), The Letters of Queen Elizabeth and King James VI of Scotland (Camden Society, o.s. 46, 1849), 14. 66 TNA, SP52/37, fo. 110. 67 On Spanish intrigue see Concepcion Sáenz-Cambra, ‘James VI’s Ius Suum Conservare – his Intrigues with Spain, 1580‒1603’, International Review of Scottish Studies 30 (2005), 86‒107. 68 Julian Goodare, ‘James VI’s English subsidy’, in Goodare and Lynch (eds), Reign of James VI, 110‒25. 69 Quoted in Jenny Wormald, ‘James VI and I: two kings or one?’, History 68 (1983), 187‒209, at p. 190.

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that James married according to her will. Wotton’s embassy, so successful socially, was rebuffed both on the issues of marriage and closer alliance. So the correspondence evolved in a pattern that all too often meant that the English queen resorted to schoolmarmish bullying that was deftly sidestepped, or occasionally completely ignored, by the recipient. As Susan Doran observes in the case of the crisis of the Catholic earls, ‘James usually promised much but delivered little’.70 The case is convincing, but it overlooks the difficulties caused by the inherent asymmetry between the two monarchs in the 1580s and 1590s. The language used to discuss the payments made for the King’s support makes that asymmetry visible. There is a crucial linguistic distinction: James and his ministers always referred to the subsidy as an ‘annuity’, an assured payment that had been agreed and was enduring. Elizabeth and her regime used the language of ‘gratuity’, offerings given of grace and dependent on good performance.71 Neither side normally talked about gifts per se, though each payment had to be authorised by the Queen in person, and represented thanks for good done as well as seeking assurance for the future. The contrasting attitudes of the two regimes were revealed most fully in 1589, when James’ imminent marriage was the cause of anxiety. On 16 August William Asheby wrote to Walsingham from Edinburgh about the royal marriage, pointing out that James’ households were unprepared for the arrival of a queen, ‘yet he thinks with his honour he cannot go back’, and expects Anne’s arrival imminently.72 Walsingham, in a letter that must have crossed with this, gave a dusty answer that the King could expect little, given England’s military costs.73 A few weeks later the outline of an agreement was patched up by English officials, and a full range of gilt plate, purchased in London, valued at £2,000 sterling, was despatched to Edinburgh.74 But the status of the silver was unclear: was it in lieu of much of James’ gratuity? Was it a loan or a gift? While James was on the high seas pursuing his bride, Burghley spent frustrating months disentangling these issues, and trying to avoid himself becoming liable for the cost of the plate, for the purchase of which he had given his own surety.75 While Elizabeth was predictably reluctant to part with more money than necessary, and seemed to assume that 70 Wormald, Court, Kirk and Community, 150‒1. For a development of similar ideas from the English perspective see Susan Doran, ‘Loving and affectionate cousins? The relationship between Elizabeth I and James VI of Scotland, 1586‒1603’, in Susan Doran and Glenn Richardson (eds), Tudor England and its Neighbours (Basingstoke, 2005), 203‒34, at p. 210. 71 Goodare, ‘English subsidy’, 113. 72 CSP Scot., x, no. 182. 73 Ibid., x, no. 187. 74 Ibid., x, no. 226. 75 Ibid., x, nos 241, 261.

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the £2,000 would be repaid, she directed her anger at a king who did not offer proper thanks for her gift.76 By what the diplomats were constrained to read as oversight James, in the haste of departure for Denmark, only wrote to thank the English ambassador, asking him to convey gratitude to the Queen. In October Burghley told Asheby in no uncertain terms that Elizabeth ‘myslyketh that the kyng wold wryt to yow and not to hir self ’. Even in November the matter was not fully resolved, because the Scottish council, in writing to the queen, again forgot gratitude for the gift of plate, and had to apologise through Asheby and Burghley. Only in December had everyone performed as required, and Burghley gained his warrant for £3,000 from the Exchequer.77 Elizabeth clearly believed that she had behaved with honourable generosity in these transactions, giving a great gift to enhance James’ resources on the eve of his marriage – and 1589 did see two payments of £3,000 each.78 In return she expected both principals to behave in ways that maintained at least the fiction of freedom of action. Proper giving and receiving was part of what in 1596 she termed ‘the law of kingely love’, which assured (in the public gaze) mutual obligation and contributed to princely security.79 ‘We princes’, the queen reminded James, ‘are set on the highest stage, where all beholders pass verdict on our works’.80 This he did not dispute, but the public proclamation of gratitude for him involved a different kind of reciprocity. At the time of the negotiation of the Anglo-Scots treaty of 1586 he wanted an assured pension, and above all the ‘instrument’ nominating him as heir to the English throne. This was so that ‘the quole worlde… [should] understand hou it pleacith you to honoure me’.81 Such public proclamation would have legitimated the one-way transmission of resources for the protection of England’s heir, and would have removed the sting from the concept of dependence embodied in annuity. Instead, in a brutal manipulation of the language of gifting, Elizabeth chided him for his desire for public affirmation: ‘must so great dout be made of fre good wyl, and gift be so mistrusted, that our signe Emanuel [sic] must assure?’82 The English pension therefore developed a relationship that involved 76 77 78 79

BL, Harl. MS 6994, fo. 201; CSP Scot., x, no. 241. CSP Scot., x, nos 256, 261, 272. Goodare, ‘English subsidy’, 115. Letters of Queen Elizabeth and King James VI. of Scotland (Camden Society, 1849), 115. For a valuable recent reading of the language of the letters see Rayne Allinson, ‘Conversations on kingship: the letters of Queen Elizabeth I and King James VI’, in Liz Oakley-Brown and Louise J. Wilkinson (eds), The Rituals and Rhetoric of Queenship: Medieval to Early Modern (Dublin, 2009), 131‒44. 80 CSP Scot., xi, no. 280. 81 Letters of Elizabeth and James, 33. 82 Ibid., 30.

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subterfuge, as well as asymmetry. James became an ingenious petitioner, bargaining with and cajoling the resistant queen. He even sought to play the lover, in a letter and sonnet penned in 1586. Peter Herman’s analysis of the sonnet suggests that the Petrachan form led James into dangerous political territory since he urged the avoidance of conflict such as those that arose ‘betwixt the husband and his loving wife’.83 The persona of a lover who seemed to claim equality with his lady was surely unsuitable for Elizabeth, and seems to have been met with silence. But it may also be just a rather inept example of one of James’ ways of compensating for his inability to give material gifts. The queen already used the idea of words as gifts, and presented her monitions to her cousin as offerings. This was a form of rhetoric that James quickly learned, employing the words of a king as presents, which could be intimate and private, or public and symbolic, as occasion demanded.84 For much of the time James sought to combine specific pleas to Elizabeth for better subvention with actions designed either to demonstrate that he was her independent equal, or even to frighten her council into buying his cooperation. Both tactics had some success: the handling of the Catholic earls in the early 1590s was largely controlled by James despite warnings from London, and when he was particularly angry over the succession in 1597 a gesture of audience towards Elizabeth’s Irish rebels meant that his ambassadors were able to gain the return of the pension after a break of two years, and to secure the arrears as well. But James’ needs made it impossible to maintain any consistent image of equality, or to evade Elizabeth’s power over gifts. In 1590, sending one messenger after another to try to gain his pension, he asked for certainty that promises would be kept, since ‘it is best for us both that thaire be a reciproke meiting in all our turnis’.85 The queen might humour her cousin when times were good; when he wished to restock the deer park at Falkland, Burghley allowed the English ambassador and royal gamekeepers in the north of England to be run ragged in the attempt to provide them. When diplomatic relations were poor, however, she had no hesitation in withholding the subsidy, or signalling anger by a breach in the norms of monarchical exchange. Although she agreed to be godmother to Princess Elizabeth in 1596, she sent no special representative to the christening, leaving the ambassador Robert Bowes to stand for her. Most unusually, she sent no gift for the naming (universally expected of godparents in sixteenth-century society) and, while Robert Cecil and Bowes 83 Peter C. Herman, ‘Authorship and the royal “I”: King James VI/I and the politics of monarchic verse’, Renaissance Quarterly 54 (2001), 1495‒1530. 84 Simon Wortham, ‘“Pairt of my taill is yet untolde”: James VI and I, the Phoenix, and the royal gift’, in Daniel Fischlin and Mark Fautier (eds), Royal Subjects: Essays in the Writings of James VI and I (Detroit, IL, 2002), 184‒93. On the use of words as gifts see Jason Scott-Warren, Sir John Harington and the Book as Gift (Oxford, 2001), 177‒213. 85 TNA, SP52/45, fo. 61.

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endeavoured to present this as a brief delay, it seems clear that Elizabeth was not disposed to any generosity.86

V In the end James, of course, held one ‘reciproke meiting’, as the only viable Protestant heir to the queen, a fact that mattered greatly to the English Privy Council. And so the great gift of the subsidy was, in Hobbesian terms, an acknowledgement of the King of Scots’ power. Despite the poor relations between the sovereigns that marked the later part of the 1590s, the manoeuvres by the earl of Essex and then Robert Cecil to smooth the succession did something to assuage James’ sense of wounded honour and inferiority. Yet he remained caught between taking money as ‘the acceptance of mutual aid and benefit’, and the thraldom of receiving without direct reciprocation. This was an issue that remained unresolved between him and Elizabeth.87 What English payments did deliver to James was a domestic freedom, from which he learned the value and significance of gifts. English commentators, from the queen downwards, thought him prodigal rather than liberal: ‘he gives’, said Thomas Fowler, ‘to every one that axes what they desyer, even to vayne youths and prowd foles’.88 Though this was not quite true, James did expect to follow his own precept in displaying largesse with liberality, an image very different from that of his cousin, who required full service to be rendered before reward was given. When the prize of the English throne was finally attained, his freedom readily morphed into prodigality. At a court masque at Christmas 1603 the Three Graces sang of generosity: Desert, Reward and Gratitude, The Graces of Society, Do here with hand in hand conclude The blessed chaine of amity. For 1. I deserve, 2. I give, 3 I thank.89

This downward and outward flow of generosity from the monarch became the hallmark of James’ early years in England.90 That freedom of spirit was to have consequences that Hobbes deeply condemned. 86 CSP Scot., xii, nos 303, 330; Doran, ‘Loving and affectionate cousins’, 218‒20. 87 Small wonder that there was a rumour in 1591, possibly from France, that James had argued with Elizabeth and returned Anne’s wedding gifts from her: CSP Dom., 1591‒ 4, 14. 88 CSP Scot., ix, no. 558. 89 John Nichols, The Progresses, Processions and Magnificent Festivities of King James the First, 4 vols (London, 1822‒8), i, 309. 90 James’ ‘spendthrift’ habits are set in the context of a discussion of his rule in Scotland and England by Wormald, ‘James VI and I: two kings or one?’, 198‒9.

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Royal gifting mattered in the sixteenth century. It marked alliances, provided a form of dialogue with fellow monarchs, and upheld an image of largesse and magnificence that was a necessary part of renaissance power. Exchange between England and Scotland was made complex by neighbourhood, enmity and the imbalance of material resources. But James IV and James V managed to use the great offerings given to them as an affirmation of power and honour, retaining freedom of choice in those to whom they gave and from whom they received. The situation of James VI was very different. For all his internal success in ruling Scotland, and his skill in manipulating the threat of foreign alliance, he was neither free nor equal in his relations with Elizabeth. This surely bred a Hobbesian disposal to ‘counterfeit love’ to his cousin, and a resentment of ‘thraldom’. We know that the queen’s choice in maintaining the dependent gift relationship, coupled to a refusal to assure the succession, mattered little to the ultimate success of the union of the crowns; James VI, however, had rational grounds to fear that her gifts were full of false promise.

chapter 14

The Ainslie Bond JULIAN GOODARE

This poor young princess, unexperienced in such devices, was circumvented on all sides by persuasions, requests, and importunities; both by general memorials signed by their hands and presented to her in full council, and by private letters.1 Therefter by consent of the nobility the Queen married James Hepburne Earle Bothuell.2

In April 1567, many Scottish nobles and bishops signed a bond agreeing to support the earl of Bothwell’s proposed marriage to Queen Mary. This bond is a notable event in the chain of events leading to Mary’s downfall, yet the details are obscure. The date is uncertain: either 19 or 20 April. The venue is uncertain: either ‘Ainslie’s tavern’ (either in Edinburgh or the neighbouring burgh of the Canongate), or Bothwell’s lodgings at Holyrood. The signatories are uncertain – a particularly important point. Some copies of the bond have attached to them a document by Mary approving the transaction, others do not. How should we interpret the Ainslie Bond?

I The last few months of Mary’s reign have been debated for centuries, but few if any scholars have paid adequate attention to the Ainslie bond. The important events have been assumed to be Darnley’s murder (9 February) and Mary’s marriage to Bothwell (15 May). It has been taken for granted that the marriage was highly unpopular with ‘the nobles’, not least because Bothwell had murdered Darnley, so that an anti-Bothwell uprising was inevitable. Debate has largely concerned Mary’s role in Darnley’s murder. Her detractors have argued that she was guilty along with Bothwell, while her supporters have contended that she was innocent, but was dragged down along with Bothwell once she agreed to marry him, either voluntarily or 81 Claude Nau, The History of Mary Stewart, from the Murder of Riccio until her Flight into England, ed. Joseph Stevenson (Edinburgh, 1883), 37. 82 NLS, ‘The Kingdome of Scotland’ (contemporary history), Wodrow Folio 5, p. 222.

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through coercion. Debate about the anti-Bothwell uprising has thus merely concerned the extent to which it was, or became, also anti-Mary. The inevitability of the uprising itself has not been questioned, since Bothwell’s unpopularity is taken for granted. But perhaps an anti-Bothwell uprising was not inevitable? The fact that Bothwell gathered so much support in late April is certainly striking. Most historians have simply stated that the Ainslie bond was made, and then moved rapidly on without incorporating it in their analysis. It has seemed obvious to them that the other nobles were always totally against Bothwell marrying the queen, and so they have either given offhand explanations for the bond or no explanation at all, before proceeding to resume the story on the assumed basis of hostility to Bothwell. This chapter argues that the history of Mary’s downfall should be written as if the Ainslie bond really was signed, and as if those who signed it really meant what they said. The work of Jenny Wormald is crucial for understanding this last point. She has placed the Ainslie bond in its correct interpretative framework simply by reminding us that it is a bond, and by showing us how bonds operated. Bonds were part of a culture of honour. With bonds, men formed alliances and made promises to serve their lords and protect their followers. Wormald’s work focused on bonds of manrent, promises made by followers to lords, and bonds of maintenance, reciprocal promises made by lords to followers. But she extended her work to include bonds made between equals – bonds of friendship, alliances for local causes – and also what she called ‘political’ bonds – bonds in support of national causes. The Ainslie bond was one of these political bonds. This is what Wormald said about political bonds: There is no absolute dividing line between the ‘normal’ bonds of friendship, maintenance and manrent and political bonds. They involved the same people and their followers; and a man who made a bond of manrent promised to serve his lord in all his affairs, and these would include his political affairs … Moreover, political bonds invoked the same language and ideas as other bonds; indeed, they used language which gave an even stronger impression of a deeply felt adherence to the strength of the ties of friendship and, because they were made for political purposes, they made a very conscious attempt to show that those who entered into them were imbued with political responsibility and desire to serve the state.3

This does not mean, of course, that men who signed bonds were never selfinterested or hypocritical. It means that they presented themselves as honourable and trustworthy, in a world where open, honourable and trustworthy actions were valued. Honour resided in truthfulness, and in the keeping of promises, both spoken and written.4 The Ainslie bond was not a 83 Jenny Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh, 1985), 145.

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hole-and-corner affair, done in secret or with built-in deniability. Those who make public political commitments know that people will expect them to adhere to those commitments – and their behaviour is affected by the fact that they know that people will expect this.5 The bond itself spoke of the ‘honour and fidelitie’ of the signatories, and urged that they should be counted ‘vnvorthie and faithles treatours’ if they breached their promise. In what follows, therefore, it will be assumed that the signatories to the Ainslie bond were self-interested, and that at least some of them may have been hypocritical – but not necessarily more so than others who take political actions; they were simply politicians, who are often self-interested and sometimes hypocritical. However, it will also be assumed that when they signed the bond, the signatories pledged themselves to its programme honourably and publicly, and that they expected to be believed.

II It is first necessary to resolve the bond’s textual and archival problems. It has never yet been established who actually signed it. The original bond, with holograph signatures, is no longer extant, and the various extant copies do not all agree. One relevant document is merely an eighteenth-century summary of a manuscript that has since disappeared. All these versions can be referred to, for convenience, as ‘copies’. A careful look at the variations between them can be revealing. There are seven relevant copies, in two distinct manuscript groups. In the discussion that follows, I will number the groups 1 and 2, with individual copies being numbered 1a, 1b, 2a, 2b and so on. The four copies of group 1 are placed in rough chronological order, because 1b probably derives from 1a, while 1c and 1d (which have less value) are probably copies of either 1a or 1b. The three copies of group 2 cannot be placed so clearly in order, because they cannot be shown to derive directly from each other, but 2a is the most complete. Copy 1a is in the National Archives.6 This copy, like all those in group 1, is dated 19 April. In addition to the bond itself, the text includes a warrant by Mary endorsing the signatories’ actions, dated 14 May. The text was copied in Scotland by John Reid, an associate of the earl of Morton. He gave his document to an Englishman, evidently working for Sir William Cecil, and 84 Keith M. Brown, ‘Honour, honours and nobility in Scotland between the Reformation and the National Covenant’, SHR 91 (2012), 42‒75, at pp. 49‒52. 85 Quentin Skinner, ‘Some problems in the analysis of political thought and action’, Political Theory 2 (1974), 277‒303, at pp. 289‒301; cf. Quentin Skinner, ‘Moral principles and social change’, in his Visions of Politics, vol. i: Regarding Method (Cambridge, 2002), 145‒57. 86 TNA, SP52/13, no. 33 (cf. CSP Scot., ii, 321‒2).

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the Englishman added to it a list of the names of the nobles who had signed. This is established by the English writer, who headed his list: ‘The names of such of the nobilitie as subscribid this Band so far as John Read might remember, of whome I had this copie, being his owne hand.’ Sir William Drury described Reid in June 1567 as ‘Jhon Reade, a Skotysche man whoo hathe not leaste credyte with therle Murton, nor leaste doynge in hys cheaffest secrettes’.7 The list of signatures, however, was crucial, and this was written by the second writer, based on Reid’s oral information. His identity is unknown, but his orthography was clearly English: ‘Read’, ‘Aynsleyes supper’, ‘Murray’, ‘Argile’, ‘Seyton’, ‘Oglevy’. He had met Reid when Reid was somewhere away from his best sources of information, so that Reid had had to ‘remember’ the list of signatories. The phrase ‘Beinge termid in Scotland Aynsleyes supper’ probably indicates that they were in England at the time. The second writer probably wrote his list in Reid’s presence – he made an error and corrected it (the listing of Eglinton among the earls, crossed out and with a note at the end about him having slipped away). Overall, Reid clearly knew the signatories, though he made some perhaps revealing errors, as we shall see. Copy 1b is in the Cotton collection in the British Library.8 This has been the most widely quoted version of the bond, but it is probably copied from 1a, the National Archives copy. It is a neat copy by an experienced copyist in English orthography, though one or two Scottish spellings survive (such as ‘bot’ in the penultimate sentence) to indicate that it was copied directly from a Scottish copy such as 1a. Copy 1b is also dated 19 April, and also includes Mary’s warrant. Copies 1c and 1d can be considered together; they are both from the same volume of the Sloane collection in the British Library, and are both English copies from a somewhat later date, perhaps the seventeenth century.9 Copy 1d has a note attached saying that it is a copy of 1b, and 1c may also be a copy of 1b. These two copies thus have less value than 1b. We now turn to the three copies in the second group. Copy 2a is from the Leven and Melville muniments in the National Records of Scotland.10 It may well derive from the papers of Sir Robert Melville, an ambassador for Mary in 1567. One indication that it is from a different manuscript tradition is that 1a and 2a have numerous textual differences, with 2a being more verbose – 867 words in the main text, as against 827 for 1a – and slightly more grammatically accurate. There are also material differences between the two 87 TNA, Drury to Cecil, Berwick, 20 June 1567, SP59/13, fos 174r.–175r. (cf. CSP For., 1566‒8, 256). 88 BL, Cotton MSS, Calig. C.1, fos 2r.–3v. 89 BL, Sloane MS 3199, fos 96r.–97r. (1c), fos 312r.–314v. (1d). 10 NRS, Copy (16th century) Bond of Friendship in favour of James, Earl Bothuill, Leven & Melville Muniments, GD26/15/1.

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groups. The two main copies in group 2 lack Mary’s warrant. All three date the bond 20 April, not 19 April as in group 1. Their lists of signatories include bishops, while group 1 do not. And even with the nobles, the two groups’ lists sometimes differ. Copy 2b derives from the Scots College at Paris. The document itself was destroyed in the French Revolution, but it was read in 1730 by Thomas Innes, who sent a note of it to Robert Keith for inclusion in the latter’s history of Mary’s reign. Innes knew the Cotton copy (1b) through its recent publication by James Anderson. Thus he did not transcribe the main text, merely noting that it was the same in substance as Anderson’s, but he did transcribe the signatures, and he pointed out discrepancies in date and signatures.11 His list of signatures was identical to that of 2a, of which neither Keith nor Innes was aware. Copy 2c, the final copy, is a transcript by the presbyterian historian David Calderwood.12 Calderwood gave fewer signatories overall – eighteen as against twenty-four for 2a and 2b. Unlike 2a or 2b, he included Mary’s warrant. Against one of the bishops’ signatures – ‘Sanct Andrewes’ – Calderwood added a note: ‘(This subscription is counterfoote in the principall.)’ Did Calderwood see the ‘principall’, with original signatures? Or was he simply mistaken in believing that the document he was copying was the ‘principall’? This is an insoluble but perhaps peripheral puzzle.

III The bond was signed at the close of a parliament, which took place in Edinburgh between 14 and 19 April. This can help to solve the problem of the conflicting dates in the various copies. The disparity probably arose through a simple copying error; copy 1a says ‘xix’, 2a says ‘xx’, and either of these figures could easily be mistaken for the other. There is, however, a further piece of evidence: a letter from Sir William Kirkcaldy, dated ‘At Edingburgh the xxth of Aprill’, and then with a postscript, in the same hand, longer than the letter itself. The main text of the letter said that ‘The parliament dissolvet this day’. The postscript added: The same night the parliament was dissolvit Bothwell caulit the mast part of the noblemen to supper for to desire of them their promys in writing and consent for the Q. mariage, quilk he will obteyne, for sho has said that sho caris not to lose France Ingland and her owne countrie for him, and sall go with him to the warldis ende in ane white peticote or sho leve him.13 11 Near-contemporary copies of Innes’ transcript, with his covering letter to Keith, are in NLS, Miscellania Scotica Curiosa, Adv. MS 22.2.18, pp. 144‒5, 153‒4. 12 Calderwood, History, ii, 352‒4. 13 TNA, Kirkcaldy to earl of Bedford, 20 April 1567, SP52/13, no. 35 (cf. CSP Scot., ii, 322‒3).

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KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

For present purposes the notorious ‘white peticote’ is not the most important part of this letter.14 The question is: when did Kirkcaldy write it? His date ‘xxth’ was probably an error for the 19th, since it formed part of the main text, which he clearly wrote on the same day as the dissolution of parliament. The parliamentary record and other sources make clear that this was the 19th (a Saturday). In Kirkcaldy’s postscript, his wording – ‘The same night the parliament was dissolvit …’ – suggests that he was writing on the following day, but is unambiguous that the ‘supper’ was on the evening of the parliament’s final day. His statement that Bothwell ‘will obteyne’ the nobles’ promises indicates that he had not yet received information about the outcome. If Bothwell wanted to maximise the signatures he gathered, it would have made sense to circulate the bond for signature at the supper itself. It may be concluded, therefore, that the bond was signed on the evening of the 19th. The name ‘Ainslie’s Supper’ presumably relates in some way to the venue. The fact that the event acquired a name indicates that contemporaries discussed it publicly and saw it as significant. It derives from the English annotator of 1a, who said that the event was ‘commonly termid in Scotland Aynsleys supper’. Previous scholars have assumed that ‘Ainslie’ was a tavern-keeper, which may be correct, though there is no mention of a ‘tavern’ in the sources. Several sources place the supper at Bothwell’s lodging, either in Edinburgh or in Holyroodhouse; perhaps Ainslie was an outside caterer.15 Despite Ainslie’s obscurity, the name ‘Ainslie bond’ is historiographically convenient.

IV To determine who signed the bond, it is necessary to collate the surviving copies.16 But there is one further source of information. Lists survive of those attending the parliament, both at its opening – the members assembled on the 16th – and at its close on the 19th.17 If there is doubt about whether a given person signed the bond, it helps to check the parliamentary attendance record. It would normally be expected that nobles or bishops who were in 14 My own view is that it is an unsubstantiated rumour. Kirkcaldy also reported, wrongly, that the queen had had Bothwell’s acquittal ratified in parliament. The whole letter seems distorted by hatred of Bothwell. 15 Sir James Melville places it ‘in a chamber within the palice’: Sir James Melville, Memoirs of his Own Life, ed. Thomas Thomson (Bannatyne Club, 1827), 177. The ‘Book of Articles’ says Bothwell’s lodging at Holyrood: Gordon Donaldson, The First Trial of Mary, Queen of Scots (London, 1969), 179. Nau says the ‘Earl of Bothwell’s house, in Edinburgh’, as does Bothwell himself: Nau, History, 36‒7; Les Affaires du Conte de Boduel, ed. Henry Cockburn and Thomas Maitland (Bannatyne Club, 1829), 16. 16 Wormald uses more copies than most other scholars – those I have numbered 1b, 1d, 2a, 2b and 2c: Lords and Men, 406. 17 APS, ii, 546‒8 (RPS, 1567/4/5).

307

THE AINSLIE BOND

Edinburgh at the time of a parliament should attend it. Anyone who was absent from the parliament is thus unlikely to have been in Edinburgh, and this would make them unavailable to sign the bond. Below are three tables showing which earls, lords and bishops are said to have signed the bond, with separate columns for each copy. There is also a column for attendance at the parliament (‘P’). In evaluating the tables, it should be borne in mind that not all the copies bear equal weight; in group 1, at least, 1a is more important than the others. The table for the bishops confines itself to the copies in group 2; group 1 names no bishops, being explicitly (in the words of 1a) ‘The names of such of the nobilitie as subscribid’. In analysing the signatories, it is important not only to determine who signed; we also want to know who did not sign. Or rather – since some people were inactive or physically unavailable – we want to know who could have signed, but refused to do so. The tables thus offer a snapshot of the political community, or at least of relevant members of the noble and ecclesiastical estates, since Bothwell seems to have made no attempt to obtain signatures from representatives of burghs. We shall see that at least two non-noble officers of state seem to have been involved. Table 14.1 Earls and the Ainslie Bond in 1567. Title

P

1a 1b 1c 1d 1a 1b 1c Notes

Conclusion

Argyll

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Arran18

–

–

–

–

–

–

–

–

Atholl

–

–

–

–

–

–

–

–

Did not sign

Bothwell

Y

–

–

–

–

–

–

–

Bond to him

Caithness

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Cassillis

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Crawford

Y

–

–

–

–

Y

Y

Y

Signed

Eglinton

Y

–

–

–

–

–

–

–

Errol

Y

–

–

–

–

Y

Y

Y

Signed

Glencairn

–

Y

Y

Y

Y

–

–

–

Probably did not sign

Huntly

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Lennox

–

–

–

–

–

–

–

–

Mar

–

–

–

–

–

–

–

–

Did not sign

Marischal

Y

–

–

–

–

–

–

–

Did not sign

Out of country Could not sign

Slipped away

In west of Scotland

Did not sign

Could not sign

18 This is the second earl, duke of Châtelherault, rather than the insane third earl.

308

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Title

P

1a 1b 1c 1d 1a 1b 1c Notes

Moray

–

Y

Y

Y

Y

–

–

–

Morton

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Rothes

Y

Y

Y

Y

Y

Y

Y

–

Signed

Sutherland

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Conclusion

Out of country Could not sign

This table shows eighteen of Scotland’s twenty-two earls.19 Earls were expected to be politically active; Angus, Buchan, Menteith and Montrose, however, were inactive in early 1567, and have thus been omitted from the table. Of the eighteen active earls, therefore, we can establish that nine signed the bond: Argyll, Caithness, Cassillis, Crawford, Errol, Huntly, Morton, Rothes and Sutherland. As for the remainder, two were out of the country (Arran and Moray), one was in the west of Scotland (Lennox), three more were absent from the parliament and thus probably unavailable (Atholl, Glencairn and Mar), while one was Bothwell himself.20 That leaves only two earls who were at the parliament and seem to have refused to sign: Eglinton (said by 1a to have ‘slippid away’) and Marischal. We shall return to the question of Glencairn and Moray, who were both named by group 1 as having signed. In the meantime, however, the signatures of these nine earls stand as striking testimony to the scale of the support that the political community gave to Bothwell’s project. The next table shows twenty-two of Scotland’s thirty-one lords. The following have been omitted because they were neither at the parliament nor mentioned by any copy of the bond: Cathcart, Drummond, Elphinstone, Forbes, Lovat, Maxwell, Methven, Somerville and Yester. Some were politically active, but none can be said with confidence to have refused to sign. It is harder to establish which lords signed, as there are more disparities between groups 1 and 2. I have taken a lord to be a definite signatory if he attended the parliament and was named by both groups, and a probable signatory if he attended the parliament and was named by just one group. All those named by group 2 in fact attended the parliament. However, there are several lords named by group 1 who were absent from it. I have not treated them as signatories. 19 For unreferenced statements about the peerage and episcopate, see the Scots Peerage, the ODNB or the Handbook of British Chronology. 20 On 19 April, one of the acts of parliament mentioned that Moray and Châtelherault (Arran) were absent from the realm: APS, ii, 551, c. 7 (RPS, 1567/4/11). Lennox was in Stirling on 11 April: Robert Keith, History of the Affairs of Church and State in Scotland, from the Beginning of the Reformation to the Year 1568, 3 vols, eds J. P. Lawson and C. J. Lyon (Spottiswoode Society, 1844‒50), ii, 538‒9. He seems then to have returned to his Glasgow base. On the 23rd he was on a ship at the Gairloch: Lennox to Drury, 23 April 1567, CSP Scot., ii, 323‒4.

309

THE AINSLIE BOND

Table 14.2 Lords and the Ainslie Bond in 1567. Title

P

1a 1b 1c 1d 1a 1b 1c Notes

Conclusion

Borthwick

Y

–

–

–

–

–

–

–

Did not sign

Boyd

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Carlyle

–

Y

Y

Y

Y

–

–

–

Probably did not sign

Fleming

Y

–

–

–

–

Y

Y

–

Probably signed

Glamis

Y

–

–

–

–

Y

Y

Y

Probably signed

Gray

–

Y

–

–

–

–

–

–

Probably did not sign

Herries

Y

Y

Y

Y

Y

Y

Y

–

Signed

Home

–

Y

Y

Y

Y

–

–

–

Probably did not sign

Innermeath

–

Y

Y

Y

Y

–

–

–

Probably did not sign

Lindsay

Y

–

–

–

–

–

–

–

Did not sign

Livingstone Y

–

–

–

–

–

–

–

Did not sign

Ochiltree

Y

–

–

–

–

–

–

–

Ogilvy

Y

Y

Y

Y

Y

Y

Y

Y

Signed

Oliphant

–

Y

Y

Y

Y

–

–

–

Probably did not sign

Ross

Y

Y

Y

Y

Y

–

–

–

Probably signed

Ruthven

Y

–

–

–

–

Y

Y

–

Probably signed

Saltoun

Y

–

–

–

–

–

–

–

Sanquhar

Y

–

–

–

–

–

–

–

Did not sign

Sempill

Y

Y

Y

Y

Y

Y

Y

–

Signed

Seton

Y

Y

Y

Y

Y

–

–

–

Sinclair

–

Y

Y

Y

Y

–

–

–

Torphichen

Y

–

–

–

–

–

–

–

At parl. 16th only

At parl. 16th only

At parl. 16th only

Did not sign

Did not sign

Probably signed Probably did not sign

At parl. 16th only

Did not sign

310

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

This gives us four definite signatories – Boyd, Herries, Ogilvy and Sempill – and five probable signatories – Fleming, Glamis, Ross, Ruthven and Seton. In addition, 1a names the following six lords: Carlyle, Gray, Home, Innermeath, Oliphant and Sinclair. They probably did not sign, but the inclusion of extra lords in 1a is a significant point to which we shall return. Finally, there were seven lords at the parliament who seem to have failed or refused to sign: Borthwick, Lindsay, Livingstone, Ochiltree, Saltoun, Sanquhar and Torphichen. Four of these – the four last named – left before the end of the parliament, but they could still have refused to sign. Lords faced less pressure than earls to be politically active, so for Bothwell to obtain the signatures of up to nine lords was quite an achievement. Table 14.3 Bishops and the Ainslie Bond in 1567. Title

P

2a 2b 2c

Aberdeen

Y

Y

Y

Y

Signed

Argyll

–

–

–

–

Did not sign

Brechin

Y

Y

Y

Y

Signed

Notes

Conclusion

Caithness

–

–

–

–

Did not sign

Dunblane

Y

Y

Y

Y

Signed

Dunkeld

Y

–

–

–

Did not sign

Galloway

Y

Y

Y

Y

Signed

Glasgow

–

–

–

–

Isles

Y

Y

Y

Y

Signed

Moray

–

–

–

–

Did not sign

Orkney

Y

Y

Y

–

Signed

Ross

Y

Y

Y

Y

Signed

St Andrews

Y

Y

Y

Y

Signed

Out of country

Could not sign

Of the thirteen bishops, nine were at the parliament, and eight of these signed the bond – the exception being Robert Crichton, bishop of Dunkeld. The virtual unanimity of the bishops in support of Bothwell’s project is noteworthy. It may also be relevant that the bishops’ nominal leader was John Hamilton, archbishop of St Andrews, since the Hamilton family’s allegiance was important.

THE AINSLIE BOND

311

V The issue of the bond’s early gestation has been as neglected as that of its meaning. Yet big political bonds tended to have antecedents, as when the murder of Darnley was discussed months before at Craigmillar. Scholars discussing the Ainslie bond often seem to have assumed that Bothwell invited a group of earls, lords and bishops to supper, and then sprang the bond on them without warning. Yet it is at least as likely, a priori, that he had been discussing the plan with potential signatories beforehand, perhaps widely, perhaps for some time. The contemporary evidence for a Mary–Bothwell marriage project is not as extensive as is sometimes assumed (I discount the Casket Letters, for instance), but surely the bond had antecedents of some kind? The question of the bond’s gestation can be pursued further by asking another question. Why did group 1 name Glencairn and Moray as signatories? The fact that Moray was listed in error has been repeatedly pointed out since the eighteenth century, but no conclusions have been drawn from this. However, let us recall that the list in 1a derived from John Reid’s memory. Omitting names from a remembered list is easy; Reid forgot Crawford and Errol, for instance. Including extra names is more surprising; this is a harder ‘error’ to commit. Glencairn and Moray could be simple errors, but there is probably more to it. Reid, let us recall, was politically active in Morton’s circle. Whether or not his memory was accurate, the names he gave had to seem plausible. It can be suggested, therefore, that Reid constructed his list, not from a photographic memory of the bond itself, but from a memory of those who had been involved in the planning of the project. These were people who had promised to sign, or had been expected by the planners – especially from Morton’s point of view – to sign. Morton, himself a signatory, had worked closely with Moray and Glencairn for years; he had usually agreed with them, though not always. When he thought about joining this latest project, one of his most important questions would have been whether these two Protestant and Anglophile stalwarts were going to join him in it. If Morton knew that Moray and Glencairn had refused to become involved, then Reid, remembering discussions in Morton’s circle on that point, would not have found their names plausible.21 The fact that Reid named them, therefore, indicates that they agreed to support the project at the planning stage, even though they did not in the end turn up at the tavern to add their signatures. And if this is true of Moray and Glencairn, it may well be true of some or all of the 21 Moray left a few days before the bond, on either 7 or 9 April: Diurnal of Remarkable Occurrents that have Passed within the Kingdom of Scotland, ed. Thomas Thomson (Bannatyne Club, 1833), 107; Diary of 1566‒1568, in James Anderson (ed.), Collections Relating to the History of Mary Queen of Scotland, 4 vols (Edinburgh, 1727‒8), ii, 274.

312

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

six lords in the same category: Carlyle, Gray, Home, Innermeath, Oliphant and Sinclair. As we have seen, Reid listed them as signatories, although they were not at the parliament.

VI Scholars who have assumed that ‘the nobles’ were always hostile to Bothwell’s marriage to Mary have produced various explanations for why they nevertheless signed the Ainslie bond. None of these explanations has become standard, and indeed the standard approach to the bond has been to avoid giving any explanation for it. However, four explanations have been offered for why nobles hostile to Bothwell would nevertheless have signed the bond. Either the signatories were craftily planning to use Bothwell to drag Mary down, having foreknowledge of the next few months’ events; or they were deceived by Bothwell’s telling them that Mary had consented; or they were intimidated by Bothwell’s hagbutters; or they were drunk. Thus, Antonia Fraser states that ‘the motives and loyalties of some of the signatories must be considered to be highly suspect’, and that some signed ‘out of either cunning or weakness’.22 This implies some combination of foreknowledge and intimidation. Alison Weir, whose account of the bond is perhaps the longest in recent times, concludes with a combination of drunkenness and intimidation, adding that Bothwell may also have used ‘bribery’ or ‘promises of patronage to come’.23 A. R. MacRobert, by contrast, dismisses the idea that the signatories were ‘browbeaten or drunk’, and concludes that Bothwell used ‘deception’, persuading the lords that Mary had consented.24 Mark Loughlin wrote that Bothwell secured the bond by ‘spurious means’, which seems to imply deception.25 Some of these explanations originate with the later excuses of the emerging king’s party. Once they began to distance themselves from Bothwell, they had to produce plausible accounts of why they had signed. In early May, the Stirling confederacy that was gathering against Bothwell put forward the intimidation argument: ‘the most part of the nobility for feare of ther lives did grant to sundry things both against their honours and consciences, who sence have convenit them selves at Stirling’.26 At the York–Westminster conference in 1568, the English commissioners reported being shown ‘a copie of a Bande … to the which the most parte of the lordes and counsaill of 22 23 24 25

Antonia Fraser, Mary Queen of Scots (London, 1969), 376, 382. Alison Weir, Mary Queen of Scots and the Murder of Lord Darnley (London, 2003), 345. A. R. MacRobert, Mary Queen of Scots and the Casket Letters (London, 2002), 55. Mark Loughlin, ‘The Career of Maitland of Lethington, c.1526‒1573’, unpublished PhD thesis (University of Edinburgh, 1991), 251. 26 TNA, Kirkcaldy to earl of Bedford, 8 May 1567, SP52/13, no. 43 (cf. CSP Scot., ii, 327).

THE AINSLIE BOND

313

Scotland have put to their handes, and as they say, more for feare, then anie lykinge they had of the same’.27 The words ‘as they say’ indicate that the English commissioners did not necessarily believe them, but what this argument required at that point was plausibility rather than credibility. It is certainly not credible today; one earl could not intimidate nine. As for the idea that they were drunk, the only contemporary source is Buchanan’s Historia of 1582.28 It is unlikely that major political figures would have signed crucial documents in that state. The king’s party avoided saying that Bothwell deceived the signatories by falsely alleging Mary’s consent, because they were required to argue that Bothwell and Mary were already in collusion. They eventually claimed that Mary authorised the lords to sign. At York they produced ‘a warraunt … bearinge date the 19th Aprill, signed with their Quenes hand, whereby she gave them licence to agree to the same’.29 This warrant, produced alongside the probably genuine warrant of 14 May, puzzled the English commissioners and was evidently a forgery. If it was a forgery by Bothwell, this might have justified the claims that Bothwell obtained the lords’ signatures by deception; but there is no evidence for this, and the whole argument for deception seems irretrievably speculative. The idea of foreknowledge, by contrast, originates with pro-Mary arguments, notably the account that Claude Nau later compiled from Mary’s own recollections: ‘Some helped him [i.e. Bothwell] honestly, from friendship; others from fear, being in dread of their lives; others dissembled, meaning through him to carry out their own secret ends and private designs.’30 Again this seems coloured by hindsight. There is an early suggestion of foreknowledge in Drury’s report of 6 May that Archbishop Hamilton was encouraging Mary and Bothwell in order to destroy them.31 But by then, Mary’s abduction had altered the political landscape, and the anti-Bothwell confederacy was already a powerful force. It seems unlikely that this could have been foreseen on 19 April. Moreover, the whole idea of foreknowledge rests on the assumption that the signatories were already hostile, not only to Bothwell, but also to Mary – a questionable assumption, to put it mildly. The weaknesses of these ideas may explain why most scholars have not given any explanation at all for why the lords signed the bond.32 Maurice Lee 27 Duke of Norfolk, earl of Sussex and Sir Ralph Sadler to Elizabeth, York, 11 October 1568, CSP Scot., ii, 526. 28 W. A. Gatherer (ed.), The Tyrannous Reign of Mary Stewart: George Buchanan’s Account (Edinburgh, 1958), 126. 29 CSP Scot., ii, 526. 30 Nau, History, 39. 31 TNA, Drury to Cecil, Berwick, 6 May 1567, SP59/13, fos 68r.–69r. (cf. CSP For., 1566‒8, 223‒4). 32 A long list of examples could be produced here, but two recent works may suffice,

314

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

even calls the bond an ‘astonishing business’, but disposes of it in six words with no analysis.33 Wormald memorably writes, ‘one can hardly imagine a more dramatic night in a pub’.34 Gordon Donaldson recognised that there was a problem with the bond, writing, ‘the bond urging the marriage of Mary and Bothwell is not the least of the mysteries of the period.’35 The repeated absence of an explanation for the bond may help to show why it is worth paying detailed attention to it.

VII How should we understand the likely political and religious motives of the bond’s signatories? The following discussion draws particularly on Gordon Donaldson’s detailed analysis of Scottish political factions in the period from about 1559 to 1585.36 He showed that three tendencies influenced the formation of factions. Religion was important; the available religious positions fell on a spectrum from militant Protestantism of the John Knox variety to militant Counter-Reformation Catholicism, with most political actors somewhere in between. Attitudes to international relations were important; some members of the political community were more pro-English, others pro-French or at least anti-English. Finally, attitudes to royal authority were important; some took a high view of the powers of the crown, others were more attracted to constitutional checks and the monarch’s responsibility to her or his advisers.37 These three tendencies tended to combine in standard patterns: Knox himself was a militant Protestant, pro-English and

33 34 35 36

37

both containing valuable analysis of the politics of the period: Jane E. A. Dawson, The Politics of Religion in the Age of Mary, Queen of Scots: The Earl of Argyll and the Struggle for Britain and Ireland (Cambridge, 2002), 150; John Guy, My Heart is my Own: The Life of Mary Queen of Scots (London, 2004), 326‒7. Maurice Lee, Jr, James Stewart, Earl of Moray (New York, 1953), 194. Jenny Wormald, Mary Queen of Scots: A Study in Failure (London, 1988), 163 (p. 167 in the revised edition, 2001). Donaldson, First Trial, 179. Gordon Donaldson, All the Queen’s Men: Power and Politics in Mary Stewart’s Scotland (London, 1983). Other particularly relevant works are Frank D. Bardgett, Scotland Reformed: The Reformation in Angus and the Mearns (Edinburgh, 1989); Ian B. Cowan, ‘The Marian civil war, 1567‒1573’, in Norman Macdougall (ed.), Scotland and War, AD 79‒1918 (Edinburgh, 1991), 95‒112; Dawson, Politics of Religion; Elaine Finnie, ‘The house of Hamilton: patronage, politics and the church in the Reformation period’, IR 36 (1985), 3‒28; Julian Goodare, ‘Queen Mary’s Catholic interlude’, in Michael Lynch (ed.), Mary Stewart: Queen in Three Kingdoms (Oxford, 1988), 154‒ 70. For unreferenced statements about allegiance, see these works. For more on kingship and counsel in this period see Roger A. Mason, ‘Beyond the Declaration of Arbroath: Kingship, Counsel and Consent in Late Medieval and Early Modern Scotland’, Chapter 12 above in this volume.

THE AINSLIE BOND

315

constitutionally minded, for instance. Lord Seton, Catholic, pro-French and monarchical, exemplified the opposite pole of this pattern. However, there was a good deal of individuality. Bothwell himself, a committed Protestant but anti-English, did not fit the standard pattern. Lord Sempill was a Catholic but often pro-English, as his allegiance was influenced by hostility to his neighbours the Hamiltons. Donaldson built his analysis upon various lists of the political alignments of the period. Some of these lists were contemporary, like the Hamilton bond of 8 May 1568, which many of Mary’s supporters signed and which thus provided a snapshot of the ‘queen’s party’.38 Donaldson himself assembled other lists from evidence of individuals’ behaviour. But however they were created, most of his lists were lists of factions: people acting together in a sustained way in support of a common cause that pursued one or more of the three types of aim – religion, foreign policy and powers of the crown. Some of the political alignments of the period could be said to fit the standard patterns, while others crossed more boundaries. There were two ways in which boundaries could be crossed. One might be called the bandwagon effect, in which a particular movement was so successful that people joined it because it was difficult to avoid doing so. The Lords of the Congregation in 1559‒60 were basically Protestant, pro-English and constitutionally minded, but broadened out to include reluctant adherents like the Catholic fourth earl of Huntly. The other way in which an alignment could cross boundaries, particularly relevant here, was when two distinct factions deliberately entered into a compromise agreement. Although their long-term ideals differed, they felt that they could work together in the short term. There was always pressure for compromise because ‘faction’ itself was undesirable; the ideal, for all political actors, was disinterested service of the crown. Members of factions would sometimes act against the other faction, even violently, as with the bloodfeuds that factional struggles resembled; but sometimes, as with feuds, conflicting factions would also seek to bury their differences and to reach a compromise.39 The Ainslie bond was an attempt to reach such a compromise. One of the two main factions to be reconciled was that to which Bothwell himself belonged.40 Bothwell was not a major magnate, but his close ally, Huntly, was. Huntly could even be seen as the core of the faction. At any rate, 38 Wormald, Lords and Men, 407. In All the Queen’s Men, although his analysis relied on lists of allegiance, Donaldson omitted any mention of the Ainslie bond. 39 The classic exposition of how feuds were reconciled is Jenny Wormald, ‘Bloodfeud, kindred and government in early modern Scotland’, Past and Present 87 (May 1980), 54‒97. 40 To avoid convoluted expressions in what follows, the term ‘signatory’ will be extended to those lords whom I have designated above as ‘probable’ signatories, and to Bothwell himself.

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Huntly signed the bond, as did his kinsman Sutherland. Errol had usually avoided provocative commitments, but he was based in Huntly’s northeastern sphere of influence, and his signature to the bond may well have been influenced by Huntly. This faction displayed anti-English tendencies; certainly Bothwell and Huntly had anti-English records, though they were both Protestants. The core of the opposing faction comprised two overlapping groups: those who had supported the Chase-about Raid in 1565, and those who had supported the attempted coup around the Riccio murder in 1566. Both these initiatives had been pro-English and had claimed to promote the Protestant cause; they had also been constitutionally minded, claiming that it was the queen’s duty to take the advice of her nobles. Both initiatives had brought their members into conflict with the Bothwell–Huntly faction, and indeed the latter faction had taken more definite shape in the aftermath of the Riccio murder coup. Three former Chase-about Raiders signed the bond: Argyll, Rothes and Boyd. Indeed, if we add Glencairn and Moray, all the earls from the Chaseabout Raid were involved in the project (apart from the unavailable Arran). Morton, who had swithered in 1565 and might have joined, was also affiliated to this group; he was also the most prominent of the Riccio murderers. Argyll, Glencairn and Morton had been three of the five signatories of the First Bond of the Lords of the Congregation in 1557.41 The leaders of these two factions – the Bothwell-Huntly faction and the Moray–Morton faction – were thus using the bond as a means to bury the hatchet. Reconciliation was always the theoretically desired goal of factional struggle. They drew in, as signatories, a diverse group of supporters, not all of whom were primarily motivated by attachment to these factions as such. The earls of Caithness, Cassillis and Crawford could be considered as part of this diverse group of signatories, as could Lords Fleming, Glamis, Herries, Ogilvy, Ross, Sempill and Seton. Most of these people had supported the queen in 1565, when she mobilised a large part of the political nation against the Chase-about Raiders; but the fact that they had been part of a large group underlines their lack of factional commitment. The bond’s cross-party nature could be expected to cause difficulties for some people who did have a factional commitment. Not everyone wanted to bury the hatchet, or at least, not in this way. Some committed Protestants apparently refused to sign, notably Marischal and Torphichen. Ochiltree, a former Chase-about Raider, apparently refused. Among those noted as Catholics, Atholl and Borthwick apparently refused, while Caithness, Cassillis, Crawford, Sempill and Seton signed. Lindsay, who apparently refused to 41 For more on this bond see Jane E. A. Dawson, ‘Bonding, Religious Allegiance and Covenanting’, Chapter 7 above in this volume.

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sign, was a local rival of Rothes, who signed; although both Protestants, they had also been on opposite sides in 1565. The bishops who signed were mostly Catholics but included both the Protestants present (the bishops of Galloway and Orkney); the only bishop who refused to sign was Robert Crichton, bishop of Dunkeld, a committed Catholic. Finally, people could take more than one view on whether the project was in Mary’s interest. Fleming, Livingstone and Seton, brothers of three of the ‘Queen’s Maries’, were all close to Mary personally; Fleming and Seton signed, while Livingstone apparently refused. The factions to be reconciled by the Bothwell–Mary marriage project included two of the country’s main magnate families among their leaders: the Gordons, headed by Huntly, and the Douglases, headed by Morton. The project could be seen from this point of view as a continuation of a previous project with cross-factional support: the murder of Darnley, in which Bothwell (Huntly’s ally) and Morton had co-operated. Three of Scotland’s four main magnate families thus lined up in support of the Ainslie bond: the Campbells, the Douglases and the Gordons. What of the fourth family, the Hamiltons? With Arran in exile, the only actual Hamilton who was in a position to sign was Archbishop Hamilton; he did sign, but this does not necessarily indicate a settled policy by the family. The Hamiltons, like their traditional enemies the Lennox Stewarts, were in disarray. Still, to the extent that the project was a continuation of the Darnley murder project, it was anti-Lennox and so likely to be attractive to the Hamiltons. Most Hamiltons had been Chase-about Raiders, and they would probably have welcomed the opportunity to join the project to the extent that it was linked with a reconciliation of factions.

VIII The project to reconcile the factions, however, was scuppered almost as soon as it began – and, it seems, even before the bond itself was actually put to use. Having obtained the bond, Bothwell had now to propose marriage to the queen. He had evidently omitted to procure her consent in advance – and indeed, if he had had her consent in advance, the bond would scarcely have been necessary. The project seems to have been intended to present itself to Mary, if not quite as a fait accompli, at least as a complete and worked-out proposition, which she could consider in the knowledge that her leading nobles had already agreed to it. This could be compared with the working out of the so-called Craigmillar conference of December 1566, where the queen was consulted only at the end of the discussions.42 The Ainslie bond was evidently intended to persuade Mary, who might otherwise have been 42 Anderson (ed.), Collections, iv, II, 189‒90.

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reluctant, that marrying Bothwell would be a good idea that would command wide support. This is in fact what the bond itself said, though it took over eight hundred words to do so. However, if anyone in the tavern asked, ‘What if the queen refuses?’, the answer seems to have been, ‘Don’t worry, she won’t’. There was no back-up plan. To ascertain how Bothwell sought to implement the project, we turn to Mary’s instructions to William Chisholm, bishop of Dunblane, who was sent in late May to explain the marriage to the French. According to this document, Bothwell secretly obtained the consent of ‘the nobillmen’ to the marriage, ‘geving thame to understand that we wer content thairwith’. Whereupon ‘he began afar of to discovir his intentioun to us, and to assay gif he mycht be humill sute purches oure gude will. Bot, finding oure answer na thing corespondent to his desyre …’43 This accords with other things we know about the Ainslie bond, with the addition that Mary thought that Bothwell had told the signatories that she had agreed to it. But Mary made clear that she had in fact rejected Bothwell’s ‘humill sute’. This unexpected refusal placed the whole project in peril. One might have expected Bothwell to propose to the queen in person, but the phrase ‘afar of ’ is curious. It becomes clearer when compared with Nau’s account: All these lords and the chief of the counsel of the nobility, having held a meeting in the Earl of Bothwell’s house, in Edinburgh, sent Lethington, the Justice Clerk, and a third, to the queen as their delegates.44

So Bothwell, with uncharacteristic bashfulness, sent a delegation to press his suit. William Maitland of Lethington, the secretary, and John Bellenden of Auchnoull, the justice clerk, are credible members of it; they could well have been at the parliament. Nau placed the delegation before the parliament, but his chronological confusion does not invalidate his entire story; this is the kind of detail that would be hard to invent. He went on to corroborate Chisholm’s instructions by specifying that Mary had refused the proposal. This proposal seems to have been made on the 20th or perhaps the 21st. Mary, like Bothwell, had been in Edinburgh for the parliament; her presence in Edinburgh is attested every day up to and including the 21st.45 On the 43 RPC, xiv, 275‒6. 44 Nau, History, 36‒7. 45 See the daily itinerary by David Hay Fleming, Mary Queen of Scots from her Birth to her Flight into England (2nd edn, London, 1898), 542. This has numerous documents showing her in Edinburgh up to and including the 21st, and several showing her in Stirling on the 22nd. There is also a stray document dated at Holyrood on the 22nd, but Hay Fleming points out that ‘the royal clerks were not always immaculate in their dates’ (p. 515). Hay Fleming is relied on in this period by Edward M. Furgol, ‘The Scottish itinerary of Mary queen of Scots, 1542‒8 and 1561‒8’, PSAS 117 (1987), 219‒31.

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20th, she and Bothwell were able to confer in person, being both in Edinburgh and both involved in quelling a soldiers’ mutiny, apparently in Edinburgh Castle; the well-informed Drury, who tells us this, adds that she then went to Stirling on the 21st.46 So Mary rejected Bothwell’s suit and rode away, evidently leaving him wondering what to do next. What he did, of course, was to abduct the queen on the 24th, on her return journey from Stirling to Edinburgh, taking her instead to Dunbar. The details of this event need not detain us, but there is one relevant point from Chisholm’s instructions. Bothwell showed Mary the Ainslie bond for the first time at Dunbar, and she was taken aback by it: And, quhen he saw us lyke to reject all his sute and offeris, in the end he schew us how far he was procedit with oure haill nobilitie and principallis of oure estaittis, and quhat thai had promeist him undir thair hand writtis. Gif we had caus than to be astoneist we remit us to the jugement of the King, the Quene, oure Uncle, and utheris oure friendis.47

The Ainslie bond was indeed an ‘astonishing business’, even to Mary herself. This story fits with Maitland’s delegation making the initial proposal; presumably Bothwell would have kept the bond himself rather than entrusting it to them. By the time he produced it, it was too late; Bothwell’s allies, as is well known, deserted him after the abduction. What now needs to be recognised is that if Mary had consented voluntarily to the marriage, without the abduction, they might have remained his allies.

46 TNA, Drury to Cecil, Berwick, 24 April 1567, SP59/13, fo. 41r.–v. (cf. CSP For., 1566‒8, 213). 47 RPC, xiv, 276‒7.

chapter 15

‘Scotland will be the Ending of all Empires’: Mr Thomas Murray and King James VI and I JAMIE REID-BAXTER That the remarkable monarch so long referred to by non-Scottish scholars as James I is today generally described as James VI and I is in no small measure the achievement of Jenny Wormald.1 Now that James is no longer seen as springing into existence out of a provincially irrelevant Scottish limbo in 1603, his early writings have received intensive study, effectively demolishing the traditional view of him as a lifelong Rex pacificus: the king himself wrote in 1619 that ‘I know not by what fortune, the dicton of PACIFICUS was added to my title, at my comming in England; that of the Lion, expressing true fortitude, having been my dicton before’.2 It is now clear that for some years, James took his leonine dicton seriously; with the publication of Ane Fruitfull Meditatioun contening ane plane and facill expositioun of ye 7.8.9 and 10 verses of the 20 Chap. of the Reuelatioun in forme of ane sermone (1588), Ane meditatioun vpon the xxv, xxvi, xxvii, xxviii, and xxix verses of the XV chapt. of the first buke of the Chronicles of the Kingis (1589) and Lepanto (1591), he had consciously positioned himself, the future monarch of Britannia, as the militant champion of all Europe’s Protestants and the arch-enemy of the Papacy.3 An engraving 81 I wish to record my gratitude to James Johnson, Dr Peter Auger, Dr Sebastiaan Verweij, Dr Astrid Stilma and Dr Amy Juhala for invaluable logistical help in obtaining copies of material, and to Professor Dana Sutton for checking my Latin translations. 82 Meditation vpon the Lords prayer, written by the Kings Maiestie, for the benefit of all his subiects, especially of such as follow the court (London, 1619), 93. On pp. 82‒3, James had already stated, ‘What the Lion is, my dicton tells you, Est nobilis ira leonis, &c’ (emphasis in original). 83 See particularly Astrid Stilma, A King Translated: The Writings of King James VI & I and their Interpretation in the Low Countries, 1593‒1603 (Farnham, 2012); Astrid Stilma, ‘“As warriouris in ane camp”: the image of King James VI as a Protestant crusader’, in Kevin J. McGinley and Nicola Royan (eds), The Apparelling of Truth: Literature and Literary Culture in the Reign of James VI (Newcastle, 2010), 241‒51; A. H. Williamson, ‘Radical menace, reforming hope: Scotland and English religious politics, 1586‒1596’, Renaissance and Reformation (forthcoming).

‘SCOTLAND WILL BE THE ENDING OF ALL EMPIRES’

Figure 15.1 An unfamiliar image of the ‘Rex pacificus’: James VI as Protestant warrior, from John Johnston’s Vera descriptio avgvstissimae stevvartorum familiae (printed at Amsterdam for Andro Hart, 1602). (The National Library of Scotland, shelfmark L.C.1221)

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that perfectly captures James in this role is reproduced as Figure 15.1; the armour-clad king originally appeared in three works by John Johnston (c.1570‒1611) published just before James mounted the English throne, namely Inscriptiones historicae regum Scotorum (1602), The Trewe description, of the nobill race of the Stewards, and the latter’s Latin edition, Vera Descriptio (1602 and 1603).4

I The present chapter seeks to add a footnote to recent work exploring James’ own ‘armoured’ and ‘British’ thinking of the later 1580s, when writing and publishing his two Meditatiouns and the Lepanto, and the fact that in 1603, many of his contemporaries viewed the first king of Britain as a Protestant crusader. A hitherto overlooked Scottish link between the Scottish king of 1587 and the British monarch of 1603 is the poetry of Thomas Murray (1564‒ 1623), who addressed direct appeals to James as champion of universal Protestantism both in Lamentationum Ieremiae Paraphrasis Poetica, a manuscript volume of 1587‒88, and in his printed volume of 1604, Naupactiados, sive Lepantiados Iacobi Magni, Britanniarum, Franciae, & Hiberniae Regis, fidei verè Christianae vindicis, & assertoris verè Christianissimi Metaphrasis poetica (‘A Poetic Paraphrase of the Naupactos or Lepanto of James the Great, King of Britain, France and Ireland, truly the Defender of the Christian faith, and its most Christian professor’), hereinafter Naupactiados.5 In both of these books, as we shall see, Murray indicated that a British crusader clad in shining armour was exactly what he wanted James to be, just as John Johnston did with his choice of engraved portrait.6 Both Murray and Johnston were friends of the ferociously anti-Roman presbyterian spokesman Andrew Melville, another of whose friends was John Malcolm (d.1634), author of widely read prefatory epigrams to King James’ theological publications of 1588 and 1589.7 In 1588, Malcolm first presented 84 See the discussion in Roderick J. Lyall, ‘The marketing of James VI and I: Scotland, England and the Continental book trade’, Quaerendo 32 (2002), 204‒17, at 205, fn. 3. 85 Naupactos is the Greek name of Lepanto. ‘Naupactiados’ is of course grammatically a genitive. 86 Much of Johnston’s extensive work was published in mainland Europe, and has never been reprinted; but see Musa Latina Aberdonensis, 3 vols, eds W. Duguid and W. K. Leask (New Spalding Club, 1892‒1910), iii, 104‒60. In a late, unpublished poem to King James, Johnston crowned his plea for the persecuted ministers of the Kirk with the king’s motto, ‘nobilis leonis ira est …’: Edinburgh University Library, Special Collections, Melvini Epistolae, fo. 331v. 87 On Malcolm’s early career, see Steven J. Reid, Humanism and Calvinism: Andrew Melville and the Universities of Scotland, 1560‒1625 (Farnham, 2011), 139ff; for his opposition to episcopalianism, see Hew Scott (ed.), Fasti Ecclesiae Scoticanae: The

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James as the divinely appointed conqueror of the Spanish and French Catholic hostis atrox (grim foe), and then as the long-prophesied protagonist of the downfall of the papacy, who would cast down the ramparts of Rome. In 1589, Malcolm’s James is the successor to King David, and – Domini deuictis hostibus (once he has defeated God’s enemies) – dances before the ark.8 Both in time and tone, Malcolm’s 1588 epigrams stand very close to Murray’s statements in the Lamentationum … Paraphrasis, foreshadowing Andrew Melville’s ΣTHΦANIΣKION [sic for ΣTEΦANIΣKION], ad Scotiae Regem (1590) and Principis Scoti-Britannorum natali (1594), poetic visions of the ‘Britannic’ James and his dynasty leading a Protestant crusade and overthrowing the walls of the papal Babylon.We do not know how early Murray made Andrew Melville’s acquaintance, but he would be cited as a most trusted friend by the imprisoned Melville in 1610.9 Thomas Murray was the third son of Patrick Murray of Woodend (near Crieff in Perthshire), second son of Anthony Murray of Dollerie, a cadet of the Murrays of Tullibardine. Thomas’ career before 1603 is (as yet) a mystery: there is no extant record of where he studied, nor whether he ever graduated, despite the fact he was addressed as ‘Mr’.10 One of his poems says he took part in a public disputation on sovereign monarchical power, graced by the presence of the king, at Edinburgh in 1599.11 In 1603, he is recorded as being paid £333 6s. 8d. by command of the king for attending James in England.12 In 1604 Murray published Naupactiados, his Latin verse paraphrase of the king’s Lepanto, and thereafter went on to enjoy a long, successful and littlestudied career at the heart of the royal family, as first tutor and then secretary to Prince Charles.13

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Succession of Ministers in the Church of Scotland from the Reformation, 5 vols (2nd edn, Edinburgh, 1915), iv, 230, which ignores his epigrams, as does Jane Rickard, Authorship and Authority: The Writings of James VI and I (Manchester, 2007). The 1603 London edition of the Fruitfull Meditatioun included rhyming paraphrases of both epigrams; see Stilma, A King Translated, 209‒10, where she fails to realise that the two paraphrases are simply translations of Malcolm’s two 1588 epigrams. (Malcolm’s epigram for the meditation on Chronicles was left untranslated in the 1603 London edition of that work.) Thomas McCrie, Life of Andrew Melville, 2 vols (Edinburgh, 1824), ii, 269, 528. Joshua Sylvester, listing the ‘Grave Guides and Guards of Hopefull Charles’, calls him ‘Master Thomas Murray’: The Parliament of Vertues Royall (London, 1614), sig. A2. In 1615, Sir Andrew Murray and Archbishop Spottiswoode do likewise: Original Letters Relating to the Ecclesiastical Affairs of Scotland, 1603‒1625, 2 vols, ed. David Laing (Bannatyne Club, 1851), ii, 404, 418, 417, 421. ‘Ad Regem cum publicas Authoris De Regum in Reges Jure, Juris eiusque dictione exercitationes Edinburgi ANNO 1599 habitas suae Majestatis presentia aliquoties illustrasset Eukharistikon’, in Naupactiados, 36. NRS, comptroller’s accounts, 1602‒3, E24/24. See the ODNB entry by Malcolm Smuts.

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In 1993 Jenny Wormald’s former student Keith Brown wrote: To describe James VI and I’s court or Charles I’s court simply as the English court is quite wrong, and historians who have done so and who discuss it in these terms are making a grave error. This was a British imperial court in which Scottish and Irish elites constituted a sizeable minority, and their impact ought to be recognised at least as much as the second-rate English poets and royal servants who receive so much recognition from historians. But this is a historiographical tradition with a long past. … the Scottish presence did decline after the first few years of union. But the Scots did not disappear, and to imagine that their presence at court made no difference to politics, policy or the public culture of early seventeenth-century Britain is a grave error.14

Thomas Murray was one of those Scots who did not disappear.15 Already described as tutor to Prince Charles in 1605 when awarded a grant of 220 marks per annum for life, he was highly respected: on 12 February 1611, Isaac Wake wrote to Sir Dudley Carleton that ‘Murray … who is about the Prince, is much courted. But his honesty makes him well esteemed’.16 Murray’s relationship with his young charge must have been rather different from the ageing and irascible George Buchanan’s tutorship of James VI. Charles was not his father’s intellectual equal, and unlike James, he had a ‘whipping boy’, namely Murray’s young nephew William (son of the minister of Dysart). He would be created first earl of Dysart in 1643. Thomas’ own British career would never falter, despite an attempt in 1615 by George Gledstanes, archbishop of St Andrews, to get him removed from the Prince’s service because of his presbyterianism; he was defended by none less than Archbishop Spottiswoode of Glasgow, who would shortly succeed the terminally ill Gledstanes at St Andrews: There is a course to shift Mr Thomas from the Prince, and that his Maiestie suld mislyk him as ane il affected to the estate of the Kirk. … in my opinion, thai neyther lufe Kirk nor Countrey that wold wisch the remove of so wyse and learned and religious a person.17

In the spring of 1617, Murray became Charles’ secretary, and in August it became known that the king had promised him the prized provostship of Eton College when it next fell vacant.18 In August 1621, however, it must have seemed that Murray’s long years of royal favour were over. He failed to warn 14 Keith M. Brown, ‘The Scottish aristocracy, anglicization and the court, 1603‒1638’, Historical Journal 36 (1993), 543‒76, at p. 575. 15 Unlike his friend and fellow-poet Sir David Murray of Gorthy, for whom, as ‘the most trusty servant of the late Prince, and almost the only one neglected’, Thomas Murray interceded when writing to Isaac Lake on 1 April 1617: CSP Dom., x (1619‒23), 456. 16 CSP Dom., viii (1603‒1610), 226; ix (1611‒18), 170. 17 Original Letters Relating to the Ecclesiastical Affairs of Scotland, ii, 417. For glimpses of Gledstanes’ strategy, see ibid., 404, 405‒6, 413‒16. 18 CSP Dom., viii (1603‒1610), 444, letter of 13 March; 484, letter of 31 August.

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the king that George Hakewill, Prince Charles’ puritan chaplain since December 1612, was going to present the prince with a tract attacking the proposed Spanish match.19 Murray did advise Hakewill not to present the book, saying that it was ‘both dangerous and fruitless to to attempt to alter resolutions of state by discourses’. Hakewill went ahead regardless. The prince took the tract straight to his father, who immediately had Hakewill imprisoned, while Murray was placed under house arrest.20 He was replaced as Charles’ secretary in October.21 Yet in February 1622, on the death of the incumbent provost of Eton, Sir Henry Savile, King James insisted, against considerable clerical opposition and to the surprise of the other contenders, that the post was Murray’s as promised.22 A botched operation for the stone, however, meant his tenure was short. Murray died on 19 April 1623. His friend Sir Robert Ayton made strenuous and successful efforts to ensure that Murray’s widow and children were provided for, and the dead man was honoured with a veritable flood of elegies in Latin and the vernacular, collected – without authors’ names – in Harleian Manuscript 3910. One elegist notes with sadness that there seem to be no Scottish tributes to a truly admirable man: But since for this no gust nor sighe I see Coms from the North, noe verse, no Elegye, Reast pleased Murray w[ith] these teares & verse Thy few freinds here doe scatter on thy hearse Whose greife thire Northen Prophets credit saues For English men now weepe oer Scotchmens graues.23

The depth of respectful affection voiced here is very different from the tone adopted by that pillar of the Victorian London establishment Sir Lionel Cust, historian of Eton. He dismisses Murray as ‘a Scotchman … [who] seems to have had no particular qualifications to succeed a man like Sir Henry Savile … [and who]… was an alien moreover, had no university degree, and was no priest’, and continues: [He] retained the post into which he had been thrust for one year, and would have left no mark on the history of Eton College had not a fine and sumptuous Jacobean monument been erected to his memory in the Chapel … the King was disposed to give it [i.e. the provostship] to Sir Robert Ayton, a Scotchman 19 Peter E. McCullough, Sermons at Court:  Politics and Religion in Elizabethan and Jacobean Preaching (Cambridge, 1998), 202‒5. 20 CSP Dom., x (1619‒23), 284, letter of 25 August 1621. 21 See the sonnet ‘Vpon Mr Thomas Murrays fall’ in The English and Latin Poems of Sir Robert Ayton, ed. C. B. Gullans (STS, 1963), 193. 22 CSP Dom., x (1619‒23), 339 (letter of 26 January 1622); 349‒50 (three letters of 23 February). 23 BL, Harley MS 3910, fo. 141. The elegies for Murray occupy fos 123‒147v. Ayton’s Epitaphium for his friend is lost (Poems, 332).

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like Murray … [whose] application was addressed to James I in verse, which may have been the origin of that sage monarch’s approbation, apart from his notorious penchant for Scotchmen. Murray’s widow also appears to have intimated her willingness to remain in the lodge as Lady Ayton.24

It is no secret that Cust’s Jacobean counterparts, too, suffered from Scotophobia.25 Yet the warmth of the elegies is positively striking: O Eaton thou my nurse I waile thy state A widowe arte thou too unfortunate Such a good guide for skill of gentelnesse Thou never more art likely to possesse Yett must I feare thou dost not feele this crosse, Nor yet hast learn’d the value of thys losse. But it is well men misse him here no more, Nor doate on him for what he was before. In this forgetfulnesse, the greateste reste Betydes him in his Monumental cheste. Rest happy Murray then yet thou didst here; For hadst thou liv’d a Life so good elswhere, Such mad devotion some blind men would haue They’d dig thy bones from out thy quiet graue And in thy Sainted Reliques put such trust Theyd were them with ther kisses into dust, Or on thy Marble they so Long would pray Till there hard knees had fyld ye stone away. And for thy monument had Lefte no roome But their owne harte w[hich] then should be thy Toomb.

II This chapter is not concerned with Murray’s professional career after 1605, the bare bones whereof can be assembled from the relevant pages of the Calendar of State Papers: Domestic, but with Murray’s surviving poetry (all in Latin). Less than half of it was included in the Delitiae Poetarum Scotorum of 1637, namely the translation of the king’s Lepanto and a single short poem about Murray’s ‘verissima amicitia’ (‘truest of true friendships’) with the Perthshire-born humanist Alexander Dicson, the friend of Giordano Bruno.26 24 Lionel Cust, History of Eton College (London, 1899), 40‒1. 25 See e.g. Richard Harrison to Dudley Carleton, 28 May 1617, concerning Sir Henry Saville, provost of Eton. Harrison ‘hopes he may live to see an end of the Scotchmen who are waiting for his (i.e. Saville’s) fall’ – CSP Dom., ix (1611‒1618), 470, a reference to Murray, Sir Peter Young and Adam Newton (ibid., 231, letter of 22 April 1614). 26 Delitiae, ii, 180‒200. For this anthology, see ‘Bridging the Continental divide: neoLatin and its cultural role in Jacobean Scotland, as seen in the Delitiae Poetarum Scotorum (1637)’ (www.dps.gla.ac.uk; last accessed 30 September 2013).

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In fact, the 1604 volume from which both these were taken contains considerably more poetry. The Lepanto translation is prefaced by three liminary poems, and followed by a rather heterogeneous collection of sixteen short schediasmata (extemporisations), whereof the ascertainable dates of composition range from 1599 to 1604.27 The death in February 1604 of Catherine de Bourbon, the devoutly Calvinist sister of Henri IV, inspired Murray to write twenty-four impassioned lines praising her constancy as a Protestant, as well as the following forceful epitaph: Cui genus, ingenium, pietas, prudentia, virtus Summa fuêre, sub hoc marmore Nympha jacet. Non jacet haec, fallor: vitam hanc erecta per omnem Quae stetit, in caelo est viva, jacere nequit. Haec stat, & ô vos! vos! Papanâ in faece jacentes Excitat, exemplo stare jubetque suo. [p. 45] (A lady whose race, spirits, piety, prudence and virtue Were of the highest, is laid low beneath this stone. No, I am wrong, she is not laid low; she, who all her life Stood upright, does not lie here dead, she lives in heaven. She is standing – and by her example, O all you who lie dead In the excrement of popery, she urges and commands you to stand.)

Amongst the preceding ‘extemporisations’ is a striking Ad Regem, Prognostikon: Quae fuit a toto divisa Britannia Mundo, Divisa & a populis quae fuit ante suis, Te Duce, cum toto nunc una Britannia Mundo Fiet, erit populis semper & una suis. Tu quoque jam regnis pacem dabis omnibus, aut tu Rex subiges armis omnia regna tuis. Nempe hoc Imperii Fatum est, fortunaque summi. Fertur in aestivi tramite Solstitii Surgit ab Eoa, Occiduam devergit ad Arctum, Caepit in Assyria, desinet in Scotia. Quae fuit Imperii Romani Scottia finis, Omnibus Imperiis Scottia finis erit. Scilicet est Soli, & magno quae Scottia Mundo Finis, erit Summis finis & Imperiis. [pp. 38‒9] (To the King, a Prophecy Britain, that was divided from all the world, and used to be divided up by her own peoples, is now, under your reign, become one in the eyes of the whole world, and 27 As Charles’ tutor and secretary, Murray surely continued to write verse, cf. the complete list of the Latin poems of Sir Robert Ayton, secretary to Queen Anna: Poems, 330‒2.

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will be one for her peoples always. You will now give peace also to all kingdoms, or you will, O King, conquer all kingdoms by force of arms. Assuredly the fate and fortune of supreme empire is this: It is said that it rose from the East in the climes of the summer solstice, and sinks down towards the Western North; it began in Assyria, it ceases in Scotland. Scotland was the end of the Roman Empire, Scotland will be the ending of all Empires. Undoubtedly Scotland, which is the end of the Sun’s journey and of the great world, will also be the ending of its greatest Empires.)

This is followed by a similar poem to Prince Henry: Ad Henricum Iacobi Magni Filium Britanniarum, & Hiberniae Principem Aliud Magne Puer, magnis prognate Heroibus; Heros Major & O! atavis ipse future tuis. O decus eximium sceptri! O spes fida Parentis! O Mundi! O Patriae gloria summa tuae! Tu coelo quidquid magnum est; tu quidquid in isto Orbe fuit magnum, jam Puer unus habes: Magnus in augusto nam splendet Iuppiter ore, Mars, Venus, in facie Phaebus et ipse tua. Ipse tua nobis describitur indole Cyrus, Cum Puer Astyagem visere gaudet avum; Ingenio Magnusque tuo, presente Philippo, Cum domat indomitum pulverulentus equum. Numinibus si vis ulla est caelestibus; olim Si Cyro, & Magno gloria magna fuit, Crede, tuis sub te veniet permagna Britannis Gloria, quaesito fortiter Imperio; Gloria non Graecis domitis, Persisve, Syrisve; Gloria Romano sed pereunte Lupo. Nec mirum hoc; Fati effatum est immobile summi, Scottia Romanum finiet Imperium. Inde fit, ut Scotici sit tandem, Henrice, Leonis Splendida, Romanus, praeda futura, Lupus. [p. 39] (Another to Henry, Prince of Britain and Ireland, son of James the Great Great lad, descendant of great Heroes; and O, a future Hero yourself greater than your forebears. O excellent glory of royalty! O faithful hope of your father! O supreme glory of your native land! Whatever is great in heaven, whatever was great on this earth, you, Lad, alone possess it: Great Jupiter himself shines in your majestic features, your countenance is that of Mars, Venus, Apollo himself. It is Cyrus whom your native disposition calls to our mind, when he rejoiced as a boy to visit his grandsire Astyages; your spirit recalls Alexander the Great, when, covered with dust, he broke the unbroken horse in Philip’s presence. If the celestial powers have any strength; if once the glory of Cyrus and Alexander was great, then believe me, under your sway exceeding great will the glory of your Britons be, by their intrepidly acquired empire: a glory won not by conquering Greeks or Persians or Syrians, but the glory achieved by the death of the Roman Wolf. Nor is this to be

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wondered at. The decree of supreme destiny is unshakeable: Scotland shall be the end of the Roman Empire. Thus it is, Henry, that the splendid future prey of the Scottish Lion shall be the Roman Wolf.)

This is the Protestant, anti-imperial language of Andrew Melville, John Napier of Merchiston and John Malcolm.28 Entirely different in tone and substance are the three epigrams that Murray prefaced to the translation of James’ Lepanto. Here Murray speaks not of prophecy and policy, but of poetry and its power. He lauds James to the skies both as British king and as poet, and while excusing his own pitiful attempt to put the king’s words in Roman dress, he observes that the moon – while it is no more the sun than a horse is a lion, or a hawk an eagle – has its own appointed role to play. Murray also employs the topos of the interdependency of great heroes and those who sing their deeds and thus create their fama: in two epigrams he echoes Henrie Lok’s preliminary sonnet to King James’ Poeticall Exercises (and hence, to the Lepanto), saying that had Homer never sung of Achilles, Alexander the Great would never have visited and wept at the Homeric hero’s tomb.29 A similar point had been made by Spenser’s friend Gabriel Harvey: And now, whiles I consider what a Trompet of Honour Homer hath bene to sturre vp many woorthy Princes, I cannot forget the worthy Prince that is a Homer to himselfe … Lepanto, first the glory of Christendome against the Turke, and now the garland of a soueraine crowne.30

Murray’s second epigram reads: Ad Heroas Christianos hoc Poemate indigetatos Relliquias flammae, Trojanaque rudera, Magnus Lustrat Achilleum dum Macedo tumulum. Si fortunatum magnâ proclamat Achillem Voce, canas numeris hunc quod, Homere, tuis. O fortunatos! Quibus una est gloria, summi Vatis & ore cani, Regis & ore coli. [p. 6] (To the Christian Heroes invoked in this Poem If the great Macedonian, when visiting the ashes and ruins of Troy and the Tomb of Achilles, cried out with a great voice that Achilles was fortunate, because you, O Homer, sang of him in your verse, then, O fortunate men! yours is the unique glory to be sung by a supreme bard, and honoured by the mouth of a king.) 28 See, inter alia, Stilma, ‘As warriouris in ane camp’, 243‒4; A. H. Williamson and Paul McGinnis on Andrew Melville (and David Hume), in their edition of George Buchanan: The Political Poetry (SHS, 1995), 31‒7, 276‒81; and Dana Sutton’s introduction to David Hume’s Daphn-Amaryllis of 1603‒5 (www.philological.bham.ac.uk/ hume4/; last accessed 30 September 2013). 29 James Craigie (ed.), The Poems of James VI of Scotland, 2 vols (STS, 1955‒8), i, 105. 30 Pierces Supererogation (London, 1593), 53. My thanks to Astrid Stilma for this reference.

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This is followed by Murray’s Latin version of James VI’s famous clarificatory prose preface to Lepanto, designed to counter claims that the poem’s subject implied pro-Spanish or pro-Catholic sentiments. Murray’s version has an invaluable marginal note stating that James wrote the poem in summer 1585, duly highlighted by James Craigie in his 1955 edition of Lepanto.31 More recently, Daniel Fischlin has shown just how well the poem embodies James’ strategies for affirming his own position and status in the summer of 1585.32 Murray’s is not the only translation of the poem; the Dutch version of 1593 has now been thoroughly explored by Astrid Stilma.33 But far the best known is La Lepanthe, by James VI’s favourite modern poet, the great Huguenot Guillaume Salluste, Sieur du Bartas (1544‒1590), who visited Scotland at the king’s invitation from May to September 1587. It is overwhelmingly probable that this was when Du Bartas encountered the king’s as yet unpublished Lepanto, and offered to make a French version.34 The king would print the resultant Lepanthe alongside the original in 1591 in His Maiesteis Poeticall Recreations.35 James Craigie examined the versions by Du Bartas and Murray in some detail, and provides textual proof that Murray’s was not the Latin version supposedly made by the king and supposedly used as a crib, as claimed as late as 1611 by Simon Goulart.36 In fact, Du Bartas had learned English in order to read Sidney’s Arcadia, and despite the difference between English and Scots, Du Bartas had ample opportunity to go over the text of Lepanto with the French-speaking king himself.37 Unlike Van der Myl’s Dutch translation, Murray’s version, like that of Du Bartas, is very much a paraphrase, both expanding and condensing the king’s agreeably colloquial text and recasting it in a highflown register. The presence of the prose preface confirms that Murray did not work from the king’s manuscript version, which lacks the print’s lines 12‒14, ‘O onely God, I pray thee thrise,/ Thrise one in persons three,/ Alike Eternall, like of might, Although distinct yee be’, for which Murray duly has ‘Une Deus, tu trine 31 Poems, ed. Craigie, i, p. xlviii. 32 Daniel Fischlin, ‘The politics and poetics of James VI’s Lepanto’, in Sally Mapstone (ed.), Older Scots Literature (Edinburgh, 2005), 540‒59. 33 Stilma, A King Translated, 84‒125. 34 Craigie, in Poems, i, p. lxviii, note 54, shows that the Lepanto is not mentioned in Du Bartas’ contract of 24 July 1585, pace both Rickard, Authorship and Authority, 61, and her source for this claim. 35 Poems, ed. Craigie, i, 284‒9. 36 Poems, ed. Craigie, i, 284. Stilma, A King Translated, quotes the Dutch translator Abraham van der Myl’s 1593 claim that Du Bartas ‘did not know Scots’, and had recourse to help from someone else, resulting in a version much less literal than Van der Myl’s own (p. 69). On pp. 107‒8, she reveals Van der Myl’s extensive debts to Du Bartas. 37 Peter Auger, ‘Du Bartas’ visit to England and Scotland in 1587’, Notes & Queries 59 (2012), 505‒8, note 15.

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Deus, ter hypostasis una, / Tres simul aeterni, tres omnipotente coaequi/ Numine; personis, mirum! O Deus une, ter unis’. Likewise, Murray’s ‘Planitiemque dolat latomus rude marmor in aequam’ translates not the manuscript’s ‘The goldsmith makis his tuichstainne fitt for any golde he gettis’, but its replacement, ‘The mason clinckes on Marble Stones / which hardlie drest he gets’ (lines 439‒40). Murray’s version of the king’s preface ends with the date ‘Prid.Cal.Maias. 1588’, i.e. 30 April, and Craigie insists that this proves that Murray’s translation itself was made in 1588.38 What the printing of this date in 1604 does unquestionably prove is that in 1604, someone wanted to underscore the strongly anti-Catholic and anti-Spanish contents of the preface: the date makes it plain that Lepanto had never been a preemptive conciliatory gesture of respect for the Spaniards on the eve of their intended invasion of England, as seems to have been suspected at the time (hence the king’s writing of an explanatory preface), and has been suggested in a recent book.39 Rod Lyall has suggested that around 1603, the spate of editions and translations of James VI’s works was ‘part of a deliberate campaign to promote James’s policies’, both in his new realm of England and in mainland Europe, and he shows that Murray’s publisher John Norton had the Naupactiados volume on sale at the Frankfurt Book Fair.40 But had Murray’s own intention been to promote James VI and I, it seems unlikely that he would have appended all sixteen of his heterogeneous schediasmata, though the two reproduced above would certainly appeal to an international Protestant readership. As might the 1604 New Year’s poem for James VI and I, ender of internecine strife and restorer of the rule of Astraea, goddess of Justice, in which Murray inter alia optimistically proclaims: Et tolles prisci nomina dissidii. Non Scottus, non Anglus erit; sed uterque Britannus, Aut prisco Albînus nomine dictus erit. [p. 38, lines 9‒12] (And you shall do away with the names of ancient discord. No more Scots, no more Englishmen, but both shall be called Britons, or by their ancient name of Albans.)

Of international interest would likewise be In redivivum Musarum sub Jacobo Rege decus (‘On the revival of the glory of the Muses under King James’), the brief In rarissimum Elizabethae Anglae regnum (‘On the exceptional rule of English Elizabeth’), and, above all, Murray’s tribute to the steadfastness unto death of the Protestant Catherine de Bourbon.

38 See Poems, ed. Craigie, i, pp. xlvi–vii, and the August 1589 Stationers Register entry cited and discussed there. 39 King James VI & I, Selected Writings, eds Neil Rhodes, Jennifer Richards and Joseph Marshall (Aldershot, 2003), 9. 40 Lyall, ‘Marketing of James VI and I’, 207 and 211.

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III Murray’s own lifelong commitment to a puritanical Scottish Calvinism and to King James’ vision of ‘Britain’ is illustrated by the way in which the schediasmata of 1604 addressed to James and to Henry – as those who would put an end to the Roman Empire of the Pope – relate directly to Murray’s virtually unknown, beautifully calligraphed manuscript work Lamentationum Ieremiae Paraphrasis Poetica, which dates from 1587‒88, as we shall see.41 This expansive paraphrase of Lamentations comes carefully framed by preliminary and postliminary verses. The manuscript’s opening epigram (see Figure 15.2) comments ‘Parva Britannaeo liceat dare dona Monarchae’ (‘it is permissible to offer little gifts to a Britannic monarch’), and the following long ‘Elegia’ is addressed ‘Ad Iacobum eius nominis Sextum Christianissimum & Serenissimum Scotorum Regem’ (‘To James Sixth of that name, Most Christian and Most Serene King of Scots’): the style ‘Christianissimum … Scotorum Regem’ recalls the phraseology found in the title of James’ 1588 and 1589 meditations, namely, ‘Set doun be the maist christiane King and synceir professour, and cheif defender of the treuth, IAMES the 6 King of Scottis’, epithets we have already seen Murray employ in 1604 in the title of Naupactiados.42 Murray’s Elegia opens by addressing James as: Scote Britannaeae sidus Boreale coronae Pene sub Arctoo qui regis arva polo (O Scot, O North Star of the Britannic Crown, you who rule the lands that lie almost under the Arctic sky)

This North Star wears a Caledonian diadem and wields the sceptre of Fergus, yet Murray, writing in the latter half of 1587 or the first half of 1588, will go on to speak of the Britannigenum genus (Britain-born race) and the Britannaeas… terras (Britannic lands). He makes no reference to James’ being married or being about to marry, or to the Spanish Armada, but he does refer to the Armada-supporting Pope Sixtus V (r. April 1585–August 1590): Siccine Barbaricos rabies Papana furores Sistaque flammiferas concitat ira faces? (Does Papal madness thus stir up barbaric fury, And Sixtus’ anger brandish blazing torches?)43 41 NLS, Adv. MS 19.3.23. 42 Stilma, A King Translated, 209‒10, briefly discusses various verbal portrayals of James as the Pope’s nemesis. But see note 8 above. 43 Sista, here meaningless as a past participle, is in fact an adjective derived from Sixtus/Sistus. My thanks to Professor Dana F. Sutton and Dr Henry Howard, who independently suggested this interpretation.

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Figure 15.2 Thomas Murray, Lamentationum Ieremiae Paraphrasis Poetica, prefatory epigram to James VI. (The National Library of Scotland, Adv. MS 19.3.23, fo. 2r.)

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And he addresses these words to James VI: Phosphore, Christicolis miseranda clade, subactis, Surgit ab ingenio spes rediviva tuo. Te duce, Romani pellent iuga dura Tyranni, Cultaque pro vero Numina ficta DEO. En tibi mirificos tribuit Germanus honores! Ecce tuam supplex Belga requirit opem! Te colit Helvetus, Batavus veneratur, adorat Cimber, amat Suaevus, Burbonidumque domus. Quique Britannaeas habitat pius incola terras, Quaeque colit verum, te colit ora, Deum. Te timet Hispani rabies animosa Philippi, Et Capitolini pompa superba Iovis. Te timet Ausoniis Italus truculentus in oris, Gallaque foedifragos turba sequuta duces. Turbaque Lethifero Papae temulenta veneno Saepe cucullatis contemerata dolis. [fo. 5r.–5v., lines 53‒68] (O Morning Star, from your natural disposition there arises fresh hope for the Christian faithful crushed by pitiful slaughter; led by you, they will cast off the harsh yoke of the Roman Tyrant, and the worship of false gods instead of the true GOD. See what singular honours the Germans pay you, behold how the suppliant Netherlander calls for your aid! The Swiss honour you, the Dutch revere you, the Danes esteem you, the Swabians love you, as does the House of Bourbon. All men of faith dwelling in the Britannic lands, and all those regions that honour the true God honour you. The rage of undaunted Spanish Philip fears you, as does the proud pomp of the Pope on the Capitoline Hill, and the grim Italian in the Ausonian lands, and the French rabble that follows the treaty-breaking Dukes, and the rabble drunk on the fatal poison of the Pope and repeatedly defiled by his hooded deceits.)

The mention of the Danes would suggest a date after July 1587, when abortive negotiations were held for a match between James and Princess Elizabeth of Denmark; in February 1588, on the death of Frederick II, Elizabeth’s sister Anna was first suggested to James as a bride.44 Murray’s reference to the Bourbons is equally suggestive in terms of dating. It calls to mind not only Henri IV’s long military struggle against the followers of the Dukes of Guise and the Ligueurs, assisted as they were by Philip II of Spain, and backed by Pope Sixtus, but also Henri’s sister Catherine (1559‒1604): she had been considered as a consort for James VI in the 1580s, and informal negotiations on the proposed match took place during Du Bartas’ Scottish visit from May to September 1587.45 In fact, Du Bartas may well have met Thomas Murray, and given him firsthand accounts of the suffering of the Huguenots at the hands of the 44 David Stevenson, Scotland’s Last Royal Wedding: The Marriage of James VI and Anne of Denmark (Edinburgh, 1997), 8‒11, 14. 45 See inter alia Auger, ‘Du Bartas’ visit’.

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Catholic Ligueurs and their Spanish allies, which inspired Murray to paraphrase Lamentations. Murray could also have heard earlier descriptions of the horrific persecution of French Protestants from Patrick Adamson, who had been forced to go into hiding during the orgy of slaughter unleashed by the St Bartholemew’s Eve Massacre in Paris. Adamson had taken spiritual refuge in composing a Bibilical paraphrase, on which Murray wrote a fine epigram: ‘In Iobum, a Patricio Adamsono, Sancti-Andreae Archiepiscopo, in medio belli civilis, quo Gallia anno 1572 conflagravit, Poetica Metaphrasi illustratum’ (‘On Job, glorified in a poetic paraphrase by Patick Adamson, Archbishop of St Andrews, in the midst of the civil war which set France ablaze in 1572’), which begins: Gallia civili cum debacchata furore Facta est heu: populi carnificina sui, Moestus Adamsonus, flammaque & caede piorum Continuata videns funera funeribus, Iam dubius vitae, solum sibi legit Iobum Aerumnis comitem, consiliumque suis. Hinc & Adamsono cessit bene, cessit Iobo Res bene; pro meritis munus uterque tulit. Debet Adamsonus vitae solamen Iobo, Quodque pius raptas fert patienter opes.46 (When France, alas! overwhelmed by raging, internecine madness, became the butcher of her own people, Adamson, griefstruck by the endless piling of death on death as the righteous were burned and slaughtered, and in doubt of his own life, chose Job as his sole companion and counseller in his tribulations. Hence things ended well for Adamson, as they ended well for Job; each received the reward he deserved. Adamson owes his life’s consolation to Job, and the fact that faithful man patiently bore the loss of his worldly wealth.)

Adamson’s Job, circulating in manuscript, could have inspired Murray to select Lamentations as a way of highlighting the current situation of mainland Europe’s suffering Protestants, endlessly trampled under the bloodstained feet of the Papacy’s Spanish and other butchers.47 Verse paraphrases of Lamentations (and of the comparably concise Song of Songs) in both Latin and the vernacular would enjoy a considerable vogue in Renaissance Britain: 46 Printed in Thomas Wilson (ed.), Reuerendissimi in Christo Patris, Patricii Adamsoni, Sancti-Andreae in Scotia archiepisopi dignissimi ac doctissimi, Poëmata sacra, cum alijs opusculis. Studio ac industria Tho. Voluseni I.C. expolita & recognita (London, 1619), sig. C. The date of composition is unknown. Wilson’s 1619 publication was designed to rehabilitate Adamson, but the presbyterian Murray is most unlikely to have been an admirer of the erstwhile archbishop’s ecclesiology. 47 The general assembly of August 1574 appointed George Buchanan, Peter Young, Andrew Melville and James Lawson to peruse Adamson’s work, and authorise it if found ‘agreeable to the truth of God’s word’: BUK, i, 310.

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Murray’s seems to be one of the earliest, but part of Lamentations is versified in Jud(e) Smith, A misticall deuise of the spirituall and godly loue betwene Christ the spouse, and the church or congregation (London, 1575), while an anonymous Lamentations of Ieremie in meeter, with apt notes to sing them withal was printed at London in 1587. Murray may have known Les lamentations et saincts regretz du prophete Jeremie, avec paraphrase et exposition appropriée à ce temps en toutes sortes lamentable (Speyer, 1584), by the Calvinist Daniel Toussain (Tossanus), later translated by Thomas Stocker as The lamentations and holy mourninges of the prophet Ieremiah with a lamentable paraphrase and exhortation, meete euery way to be applyed vnto these our dayes (London, c.1587). In his prefatory elegy addressing James VI, Murray writes: Accipe lugubri squalentia veste Latina Carmina, veridici flebile vatis opus. Hic labor, hic macies, Elegi, tormenta, dolores, Quaeque notant laceras, signa canuntur, opes. Ira, furor, gemitus,clamor, metus, ensis, et arcus, Bella, fames, lachrymae, fata, querela, minae. Et quaecunque diu passa est Solymaea propago, Dum Babylonaeas capta videret aquas. [fo. 3r.–3v., lines 7‒14] (Accept these lamenting Latin songs dressed in mourning weeds, the weeping words of the truth-speaking prophet. Here are hardships, starving bodies, funeral chants, anguish, pain; here are battles that are joined, and forces shattered; here are anger, rage, groans, shouts, fear, the sword and the bow, war, famine, tears, deaths, accusations, threats – all that the children of Jerusalem long suffered, until as captives they beheld the waters of Babylon.)

Murray then observes that although Lamentations was handed down on the lips of the children of Israel (Hoc opus Isacidum quamvis volitare per ora ceperit) and spoke of the destruction of Jerusalem and the Temple, the poem also refers to the present day: Ista tamen variis titubantia saecla ruinis Aspicit, auspiciis laeta futura tuis. Iam fera barbaries laxis grassatur habenis Et rabies Itali perniciosa lupi. Divaque legitimo spoliantur numina cultu, Structaque fictitios accipit ara Deos. Foeda superstitio vasto dominatur in orbe, Pistaque sacrilega crusta rotunda manu. Undique terribili sonitu Papana vagantur Arma, piis gelidos incutiuntque metus: Heu pia Christicolum misere captiva trahuntur Colla, vel implicitae post sua terga manus! Heu fora caede madent nimia, perfusaque membris Arva cruentatis sanguinolenta rubent! Non mulier, primove puer sub limine vitae,

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Non fugit armatas cana senecta manus. Cuncta furens hostis ferro populatur, et igni, Effugio tutas nec sinit esse vias. Vincit et Assyries dira feritate colonos, Vincit et immanes impietate feras. Siccine Barbaricos rabies Papana furors Sistaque flammiferas concitat ira faces? [fos 3v.–4v., lines 19‒40] (It however, looks to this present generation, reeling from various calamities, yet with a happy future under your leadership. For now, savage barbarism and the madness of the baleful Italian wolf have free rein to rage; the Godhead is despoiled of His lawful worship, and altars raised to welcome false gods. Filthy superstition, and a pastry disc baked by sacrilegious hands, lord it over the wide world. Everywhere the terrible sound of the roaming Papal armies strikes icy fear in the hearts of the faithful: Christ’s pious followers are carried off as wretched captives, alas for sorrow, their hands bound behind their backs. Alas for sorrow, the marketplaces overflow with the slain, and the fields, strewn with bleeding limbs, are red with blood. Neither women, nor newborn babes, nor white-haired age can escape these armoured hands; the raging foe lays all things waste with sword and fire, and there are no roads safe for flight. This surpasses even the Assyrian invader in hideous savagery, surpasses even those monstrous beasts in impiety. Does Papal madness thus stir up barbaric fury, and Sixtus’ anger brandish blazing torches?)

And Murray moves on to tell James: Ergo age, contensis apta tua robora nervis ... Cerne famem, gemitus, et singultantia verba, Bella, necem, lachrymas, verbera dura, metus. Aspice, quae misero patiuntur in orbe fideles Isaciduum querulis non leviora malis. [fos 5v.–6r., lines 69, 71‒4] (Therefore take action, bend your sinews to readying your choice troops … take to heart this hunger, these groans, these sobbing words, these wars, massacres, tears, harsh blows and fears. Consider what things the faithful suffer in this unhappy world, no whit less hard than the ills bewailed by the Hebrews.)

Then comes the direct equation of the Church of Rome with the Whore of Babylon spoken of in Revelation, and a vision of James as leader of the hosts of the faithful: Et Babylonaeis languentia colla cathenis, Multaque perpessos eripe damna pios. Opprime Barbaricum, victa Babylone, Tyrannum, Captaque fac durum colla subire iugum, Non Asiae fuerit Babylon repetenda sub oris, Turris in Assyrio, quae fuit alta, solo. Sed Babylon Scoticis multo coniunctior oris, Horrida Romulei Roma caverna lupi. Hic tibi victrices cingent pia tempora lauri Cum cadet auspiciis Roma superba tuis.

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Nec Capitolini poterunt Capitolia Divi, Nec Capitolinos haec rapuisse Deos. Omnia Papanis resonabunt icta ruinis, Crux, domus, aulaeum, templa, theatra, forum. [fo. 6r.–v., lines 81‒90] (And free from their Babylonian chains the true believers who have suffered so many afflictions. And having overcome Babylon, attack the Barbarous Tyrant, and put a harsh yoke on his captive neck: not the Babylon that lies in the Asian lands, the lofty Tower that stood on Assyrian soil, but the Babylon that lies much closer to Scotland’s shores – Rome, the ghastly cave of the Romulean wolf. Here the victorious laurels will crown your pious brow, when proud Rome shall fall to you. The Capitoline gods will not be able to snatch away [to safety] the temples of the Capitol, nor the Capitol able to snatch away the Capitoline gods. Caught up in the Papist downfall, all these things will crash to the ground: cross, house, embroidered hangings, temples, theatres, forum.)

The final passage speaks of James as the chosen one who will bring about the long-delayed reign of true piety. Quosque profanatus post plurima saecula mundus Finxerat, una omnes destruet hora Deos. Passaque funereos pietas veneranda labores Incipiet placida sceptra tenere manu. Et feret acceptam tibi, REX IACOBE, salutem, Qui potes afflictae vim tribuisse Deae. Sic pueri, serique canent tua gesta nepotes Gramina dum campus, dum feret astra polus. [fo. 6v., lines 91‒8] (Those gods, whom a world unhallowed for several ages had invented, shall all be destroyed in a single hour, and venerable piety, having endured deadly hardship, shall begin to hold the sceptre in her peaceful hand, and will bring you, KING JAMES, welcome greeting, since you have been able to place your strength at the service of piety, that afflicted goddess. Thus the children of this age and the grandchildren of ages to come shall sing your achievements, for as long as the fields grow green, and the sky is filled with stars.)

Murray’s ensuing verse rendering of Lamentations is a literary version, not an absolutely literal rendition. He frequently expands on his text, as here: The Lord hath trodden underfoot all my valiant men in the middes of mee: he hath called an assembly against me to destroy my yong men: the Lord hath troden the winepresse upon the virgine the daughter of Iudah. (Geneva Bible, 1:15) Robora belligerae prostravit leta iuventae, Me, dolor! infandam conspiciente necem. Quin, et, ut adversa iuvenilia pectora clade Obruat, hostiles ecce coegit opes. Et veluti tumidas conculcat vinitor uvas, Cum nuova nudato sub pede vina fluunt: Sic pede virgineos dominus calcavit honores, Et decus, et formam, nata Sione, tuam. [fo. 12r., lines 103‒10]

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(He has laid low the glad flower of my warlike young men, while I, O the pain of it! looked upon the unspeakable slaughter. And so that he might destroy their youthful hearts, he has brought together hostile forces. As the vintner treads the ripe grapes when new wine flows beneath his naked foot, thus has the Lord trampled underfoot your honourable virgins, your glory and your comeliness, o daughter of Zion.)

However, Murray’s embroidering does not actually depart from the text, nor extrapolate so as to invent direct allusions to the situation of Europe’s persecuted Protestants. Certainly, there is a reference to Christ, in Chapter 4:20, which in the Geneva Bible reads: ‘The breath of our nostrels, the anointed of the Lord, was taken in their nets, of whom we said, Vnder his shadow we shalbe preserued aliue among the heathen’. ‘Christus’, of course, means ‘anointed’, and Murray makes an untranslatable play on this: Qui nostrae spes una fuit, columenque salutis Christus homo, Christi vera figura DEI Sustinet aeratas pedibus gestare cathenas. Captus, et hostili retia tensa manu. Ille salutifera mediis in gentibus umbra Debuit incolumes qui tenuisse suos. [fo. 29r., lines 597‒602] (He who was our only hope, and the pillar of our salvation, the Anointed Man, the true figure of Christ God, endures the weight of brazen chains on his feet. Captured in the net stretched out by the hands of our foes is he who should have been as a healing shadow to keep his own unharmed.)

Murray here is simply building on the Geneva Bible’s marginal note m, ‘Our king Iosiah, in whom stood our hope of Gods fauour, & on whom depended our state and life, was slaine, whom he calleth Anointed, because he was a figure of Christ’. Murray doubtless fully intended James VI to realise that he too was a ‘christus homo’, an anointed mortal, but one who – being not slain but alive – was capable of affording God’s chosen the protection of his healing shadow. Murray seems to have worked from both the Geneva Bible and the Latin version beloved of Protestants, produced by the Jewish convert Emmanuel Tremellius (1510‒80), published between 1575 and 1579. Unusually, Tremellius ends Lamentations with an interrogative: ‘Nam an omnino sperneres nos, effervesceres contra nos admodum?’ – ‘For wouldst Thou reject us utterly, wouldst Thou burn with limitless rage against us?’ Murray too ends questioningly: Siccine bacchanti semper torrebimur igni? Et facient nullos ira, furorque modos? (Shall we forever be scorched by raging flames? And will your anger and fury have no end?)

The manuscript then closes with a consoling postliminary poem, a beautiful paraphrase of the First Psalm, ‘Blessed is the man, who walks not in the

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counsel of the ungodly’. The reason for choosing this psalm is plain enough. It speaks of the reward that awaits the righteous who do not betray the true faith. Warning the righteous utterly to eschew the company of the godless who mock God, the psalm describes the blessedness of those whose delight is in the Law of the Lord and the keeping of His commandments. As one of the righteous, surely James VI will defend the true believers crushed under the cloven hooves of Philip II and Sixtus V. The enemies of God will be blown away like dust and chaff before the wind, but the righteous, including James, will have no cause for fear at the Last Judgement, which Murray vividly summons up in his paraphrase of the words ‘Therefore the wicked shall not stand in the judgement’ from verse five of the psalm: Ergo citaturis vastum clangoribus orbem Cum tuba rauca fremet, nitidoque sub aethere iudex Iura repurgato dicet caelestia mundo, Tum scelerata cohors radiantia lumina vultus Iudicis in solio timeat spectare superbo. [fo. 33r., lines 25‒9] (Therefore when the clangorous summons of the harsh trumpet shall shake the devastated globe, and the judge shall pronounce heavenly sentence on a world that has passed away, then let the wicked multitude fear to look on the shining face of the judge on his splendid throne.)

Murray thus completes his presentation of Lamentations by reminding the reader of the cosmic context of all human life, as set out in the Book of Revelation, which he had evoked with his references to Babylon in the opening Elegia to King James.

IV Thomas Murray was clearly at one with his better-known contemporaries John Malcolm, Andrew Melville and David Hume – and James VI himself, at least for a time – in believing that God’s true purpose in bringing about the union of Scotland and England in the person of James VI was to seal that union in a Protestant crusade. Had Prince Henry lived, that crusade might have taken place. Whether Murray ever envisaged Charles as a crusader is unknown, but in fact, Charles’ career as king would exemplify the sad truth that no amount of tutoring can guarantee a desired outcome, something historians have long pondered in the case of James VI and George Buchanan. Thomas Murray may not have been Buchanan redivivus, but, like so many of his fellow-countrymen at the British imperial court, he merits more investigation than he has hitherto received.

Publications of Jenny Wormald

Books The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012) (co-editor with T. M. Devine). The Seventeenth Century (Oxford: Oxford University Press, Short Oxford History of the British Isles, 2008) (editor). Scotland: A History (Oxford: Oxford University Press, 2005) (editor). Published in Czech translation as Jenny Wormaldova (ed.),  Dĕjiny Skotska (Prague: Nakladatelství Lidové Noviny, 2007). Scotland Revisited (London: Collins & Brown, History Today Book, 1991) (editor). Mary Queen of Scots: A Study in Failure (London: George Philip, 1988). Published in German translation as Maria Stuart (Frankfurt: Verlag Ploetz, 1993); revised as Mary, Queen of Scots: Politics, Passion and a Kingdom Lost (London: Tauris Parke, 2001). Lords and Men in Scotland: Bonds of Manrent, 1442‒1603 (Edinburgh: John Donald, 1985). Court, Kirk and Community: Scotland, 1470‒1625 (London: Edward Arnold, 1981). Reprinted Edinburgh: Edinburgh University Press, 1991. Scottish Society in the Fifteenth Century (London: Edward Arnold, 1977) (editor).

Articles and book chapters ‘Introduction: the study of modern Scottish history’, in T. M. Devine and Jenny Wormald (eds), The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012), 1‒15. (Co-authored with T. M. Devine.) ‘Reformed and godly Scotland?’, in T. M. Devine and Jenny Wormald (eds), The Oxford Handbook of Modern Scottish History (Oxford: Oxford University Press, 2012), 204‒19. ‘The “British” crown, the earls and the plantation of Ulster’, in Eamonn Ó Ciardha and Micheál Ó Siochrú (eds), The Plantation of Ulster: Ideology and Practice (Manchester: Manchester University Press, 2012), 18‒32.

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‘Reformations, unions and civil wars, 1485‒1660’, in Jonathan Clark (ed.), A World by Itself: A History of the British Isles (London: Heinemann, 2010), 223‒332. ‘“A union of hearts and minds?” The making of the union between Scotland and England, 1603’, in Jon Arrieta and John H. Elliott (eds), Forms of Union: The British and Spanish Monarchies in the Seventeenth and Eighteenth Centuries (Donostia: Eusto Ikaskunta, 2010), 109‒24. ‘Conclusion’, in Jenny Wormald (ed.), The Seventeenth Century (Oxford: Oxford University Press, Short Oxford History of the British Isles, 2008), 223‒48. ‘The headaches of monarchy: kingship and the kirk in the early seventeenth Century’, in Julian Goodare and Alasdair A. MacDonald (eds), SixteenthCentury Scotland: Essays in Honour of Michael Lynch (Leiden: Brill, 2008), 366‒93. ‘The happier marriage partner: the impact of the union of the crowns on Scotland’, in Glenn Burgess, Rowland Wymer and Jason Lawrence (eds), The Accession of James I: Historical and Cultural Consequences (Basingstoke: Palgrave Macmillan, 2006), 69‒87. ‘The reign of James VI, 1573‒1625’, in Bob Harris and Alan R. MacDonald (eds), Scotland: The Making and Unmaking of the Nation, c.1100‒1707, vol. ii: Early Modern Scotland, c.1500‒1707 (Dundee: Dundee University Press and Open University in Scotland, 2006), 18‒35. ‘“O brave new world”? The union of England and Scotland in 1603’, in T. C. Smout (ed.), Anglo-Scottish Relations from 1603 to 1900 (Oxford: Proceedings of the British Academy 127, 2005), 13‒35. ‘Confidence and perplexity: the seventeenth century’, in Jenny Wormald (ed.), Scotland: A History (Oxford: Oxford University Press, 2005), 143‒76. ‘James VI and I (1566‒1625)’, Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), vol. 29, 628‒57. ‘National pride, decentralised nation: the political culture of fifteenth-century Scotland’, in Linda Clark and Christine Carpenter (eds), The Fifteenth Century, vol. iv: Political Culture in Late Medieval Britain (Woodbridge: Boydell, 2004), 181‒94. ‘Politics and government of Scotland’, in Robert Tittler and Norman L. Jones (eds), A Companion to Tudor England (Oxford: Blackwell, 2004), 151‒66. ‘Thorns in the flesh: English kings and unco-operative Scottish rulers, 1460‒ 1549’, in George W. Bernard and Steven J. Gunn (eds), Authority and Consent in Tudor England: Essays presented to C. S. L. Davies (Aldershot: Ashgate, 2002), 61‒78. ‘“Tis true I am a cradle king”: the view from the throne’, in Julian Goodare and Michael Lynch (eds), The Reign of James VI (East Linton: Tuckwell, 2000), 241‒56. ‘The witches, the Devil and the king’, in Terry Brotherstone and David

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343

Ditchburn (eds), Freedom and Authority: Scotland, c.1050–c.1650: Historical and Historiographical Essays Presented to Grant G. Simpson (East Linton: Tuckwell, 2000), 165‒80. ‘Scotland, 1406‒1513’, in C. T. Allmand (ed.), The New Cambridge Medieval History, vol. 7: c.1415–c.1500 (Cambridge: Cambridge University Press, 1998), 514‒31. ‘Godly reformer, godless monarch: John Knox and Mary queen of Scots’, in Roger A. Mason (ed.), John Knox and the British Reformations (Aldershot: Ashgate, 1998), 220‒41. ‘Der Schottische König Jakob VI’, in Heinz Duchhardt (ed.), Der Herrscher in der Doppelpflicht: Europäische Fürsten und ihre beiden Throne (Mainz: Veröffentlichungen des Instituts für Europäische Geschichte, Beiheft 43, 1997), 99‒121. ‘James VI, James I and the identity of Britain’, in Brendan Bradshaw and John Morrill (eds), The British Problem, c.1534‒1707: State Formation in the Atlantic Archipelago (London: Macmillan, 1996), 148‒71. ‘James VI of Scotland, I of England (19 June 1566‒27 March 1625)’, in David A. Richardson (ed.), Dictionary of Literary Biography, vol. 172: SixteenthCentury British Nondramatic Writers, Fourth Series (Detroit, MI: Gale, 1996), 119‒35. ‘Ecclesiastical vitriol: the kirk, the puritans and the future king of England’, in John Guy (ed.), The Reign of Elizabeth I: Court and Culture in the Last Decade (Cambridge: Cambridge University Press, 1995), 171‒91. ‘The high road from Scotland: one king, two kingdoms’, in Alexander Grant and K. J. Stringer (eds), Uniting the Kingdom? The Making of British History (London: Routledge, 1995), 123‒32. ‘The union of 1603’, in Roger A. Mason (ed.), Scots and Britons: Scottish Political Thought and the Union of 1603 (Cambridge: Cambridge University Press, 1994), 17‒40. ‘Resistance and regicide in sixteenth-century Scotland: the execution of Mary queen of Scots’, Majestas, 1 (1993), 67‒87. ‘The creation of Britain: multiple kingdoms or core and colonies?’, Transactions of the Royal Historical Society, 6th series, 2 (1992), 175‒94. ‘Szkocja: tradycja i rozwój’, in Antoni Mączak (ed.), Europa i świat w początkach epoki nowożytnej, Cz. 2: Ideologie, kryzysy, konflikty (Warszawa: Wiedza Powszechna, 1992), 339‒64. ‘James VI and I, Basilikon Doron and The Trew Law of Free Monarchies: the Scottish context and the English translation’, in Linda L. Peck (ed.), The Mental World of the Jacobean Court (Cambridge: Cambridge University Press, 1991), 36‒54. ‘L’état et l’aristocratie et l’idée de contrat en Écosse, XVe–XVIIe siècle’, in Philippe Contamine (ed.), L’état et les aristocraties, XIIe–XVIIe siècle: France, Angleterre, Écosse (Paris: Presses de l’École Normale Superieure, 1989), 213‒30.

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‘Laisser-faire government and local patronage: Scotland, sixteenth to early seventeenth century’, in Antoni Mączak (ed.), Klientelsysteme im Europa der Frühen Neuzeit (München: Oldenbourg, 1988), 159‒75. ‘No bishop, no king: the Scottish Jacobean episcopate, 1600‒1625’, in Bernard Vogler (ed.), Miscellanea Historiae Ecclesiasticae, 8 (Louvain: Bibliothèque de la Revue d’Histoire Ecclésiastique 72, 1987), 259‒67. ‘Lords and lairds in fifteenth-century Scotland: nobles and gentry?’, in Michael Jones and R. L. Storey (eds), The Gentry and Lesser Nobility in Late Medieval Europe (Gloucester: Sutton, 1986), 181‒220. ‘Governo “laisser-faire” e padrinaggio locale: la Scozia fra il XVI e gli inizi del XVII secolo’, in Antoni Mączak and Marzio Achille Romani (eds), Padrini e clienti nell’Europa moderna (secoli XV–XIX) (Parma: Edizioni Astrea, Cheiron 5, 1986), 47‒65. ‘An early modern postscript: the Sandlaw dispute, 1546’, in Wendy Davies and Paul Fouracre (eds), The Settlement of Disputes in Early Medieval Europe (Cambridge: Cambridge University Press, 1986), 191‒205. ‘Gunpowder, treason and Scots’, Journal of British Studies 24 (1985), 141‒68. ‘James VI and I: two kings or one?’, History 68 (1983), 187‒209. ‘“Princes” and the regions in the Scottish Reformation’, in Norman Macdougall (ed.), Church, Politics and Society: Scotland, 1408‒1929 (Edinburgh: John Donald, 1983), 65‒84. ‘Bloodfeud, kindred and government in early modern Scotland’, Past and Present 87 (May 1980), 54‒97. Reprinted as ‘The blood feud in early modern Scotland’, in John Bossy (ed.), Disputes and Settlements: Law and Human Relations in the West (Cambridge: Cambridge University Press, 1983), 101‒44. ‘The exercise of power’, in Jennifer M. Brown (ed.), Scottish Society in the Fifteenth Century (London: Edward Arnold, 1977), 33‒65. ‘Scottish politics, 1567‒1625’, in Alan G. R. Smith (ed.), The Reign of James VI and I (London: Macmillan, 1973), 22‒39. ‘Taming the magnates?’, in Gordon Menzies (ed.), The Scottish Nation: A History of the Scots from Independence to Union (London: BBC, 1972), 46‒59. Reprinted in K. J. Stringer (ed.), Essays on the Nobility of Medieval Scotland (Edinburgh: John Donald, 1985), 270‒80, and in Gordon Menzies (ed.), Who Are The Scots? and The Scottish Nation (Edinburgh: Edinburgh University Press, 2002), 147‒60.

Shorter works ‘Introduction’, in Jenny Wormald (ed.), The Seventeenth Century (Oxford: Oxford University Press, Short Oxford History of the British Isles, 2008), 1‒10. ‘Royal Dunfermline to royal Whitehall: the stresses of moving house’, in

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345

Richard Fawcett (ed.), Royal Dunfermline (Edinburgh: Society of Antiquaries of Scotland, 2005), 199‒208. ‘Introduction’, in Jenny Wormald (ed.), Scotland: A History (Oxford: Oxford University Press, 2005), pp. xv–xxi. ‘James VI & I’, History Today 52:6 (June 2002), 27‒33. Articles for Michael Lynch (ed.), The Oxford Companion to Scottish History (Oxford: Oxford University Press, 2001; 2nd edn, 2004). ‘The castle and palace of Stirling’, The Court Historian 5 (2000), 43‒8. Articles for Jack A. Goldstone (ed.), The Encyclopedia of Political Revolutions (Chicago, IL: Fitzroy Dearborn, 1998). Articles for Hans J. Hillerbrand (ed.), The Oxford Encyclopedia of the Reformation (Oxford: Oxford University Press, 1996). Articles for Ronald H. Fritze and William B. Robison (eds), Historical Dictionary of Stuart England, 1603‒1689 (New York: Greenwood, 1996). Articles for Ronald H. Fritze (ed.), Historical Dictionary of Tudor England, 1485‒1603 (New York: Greenwood, 1991). ‘Introduction’, in Jenny Wormald (ed.), Scotland Revisited (London: Collins & Brown, History Today Book, 1991), 7‒11. Articles for A. F. Kinney et al. (eds), Tudor England: An Encyclopedia (New York: Garland, 1991). ‘The first king of Britain’, in Lesley M. Smith (ed.), The Making of Britain: The Age of Expansion (London: Macmillan, 1986), 35‒46. ‘Reformation and inflation: Scotland’, in Christopher Haigh (ed.), The Cambridge Historical Encyclopedia of Great Britain and Ireland (Cambridge: Cambridge University Press, 1985), 164‒7. ‘The neighbour to the north’, in Simon Adams (ed.), Queen Elizabeth I: Most Politick Princess (London: History Today, 1984), 33‒7. ‘The house of Stewart and its realm’, History Today, 34:9 (September 1984), 21‒7. Reprinted in Jenny Wormald (ed.), Scotland Revisited (London: Collins & Brown, History Today Book, 1991), 12‒24. Articles for David Daiches (ed.), The Companion to Scottish Culture (London: Edward Arnold, 1981). Revised as David Daiches (ed.), The New Companion to Scottish Culture (Edinburgh: Polygon, 1993). Articles for Lexikon des Mittelalters (München: Artemis, 1977‒99). ‘Scotland before 1603’, in Malcolm Falkus and John Gillingham (eds), Historical Atlas of Britain (London: Granada, 1981; 2nd edn, London: Kingfisher, 1987), 90‒1. ‘James VI: new men for old?’, Scotia 2 (1978), 70‒6. ‘Introduction’, in Jennifer M. Brown (ed.), Scottish Society in the Fifteenth Century (London: Edward Arnold, 1977), 1‒9.

Index

Aachen, 255n Abercorn, 109 Aberdeen, 106, 108, 253 King’s College, 269, 272 Abernethy, Alexander, 42 Abernethy, Sir Hugh, 225 Abernethy, Laurence, lord Abernethy in Rothiemay, 108, 119 Abernethy, lordship of, 42, 50‒1, 54 Abernethy, Margaret, countess of Angus, 42, 43 (fig 2.1), 44 Abernethy, Mary, 42, 43 (fig 2.1) Abernethy, Patrick, 225n Abernethy, William, lord Abernethy in Rothiemay, 110, 119 absolutism, 272‒4, 281, 314‒15 Achilles, 329 act anent feuding, 145, 154n, 174, 212 Adamson, Patrick, archbishop of St Andrews, 335 Adonis, 128 Adorne, Anselm, 253, 258 Adorne, Peter, 258 Aeneas, 128 Agnew, Andrew, 239 Ainslie bond see political bonds Alba, 226 Albans, 331 Albania, 194, 198, 222 Albany duchess of see Isabella dukes of see Stewart Albert the Great, 270, 271, 272 Alexander II, king of Scotland, 213 Alexander the Great, 328‒9 Angus countesses of see Abernethy, Margaret; Sinclair, Margaret; Stewart, Margaret earldom of, 40, 42, 50‒1, 54, 57

earls of see Douglas, Archibald; Douglas, George; Douglas, William; Stewart, John; Stewart, Thomas; Umfraville Annandale, 177 Anne of Brittany, 288 Anne of Denmark, queen of James VI and I, 292, 296, 299n, 327n Apollo, 328 Aquinas, Thomas, 270, 272 arbitration, 174‒6, 179, 182, 184, 186, 188, 231 Arbroath, declaration of, 16, 96, 265‒8, 282 architecture, 47n, 247, 263, 284; see also Restalrig, chapel of Argyll, earls of see Campbell Aristotle, 131, 271, 277 Armstrong family, 178, 183 Armstrong, William, of Kinmont (‘Kinmont Willie’), 180 Armstrong of Mangerton family, 180 Armstrong of Whithaugh family, 180 Arran, earls of see Hamilton Arundel, earl of see FitzAlan, Richard Asheby, William, 288, 296‒7 Assize of Arms, 76 assurances, 174‒5, 184, 188‒9 Assyria, 337 assythment, 142, 153, 211, 213 Astraea, 331 Astyages, 328 Atholl earls of see Stewart regality of, 106 Auchinleck chronicle, 220, 235, 236‒7, 242 Augustine, 131 Augustus, Roman emperor, 274 Austria, 201 Avondale, 109

INDEX

earl of see Douglas, James Ayr, 108, 109, 110, 164 Ayrshire, 165, 238 Ayton, Sir Robert, 325, 327n Babylon, 336‒7, 340 Badenoch, 96; see also Stewart, Alexander Baden-Württemberg, 254 Badlane, 213 Balkans, 198‒9 ballads, 180 Banaster, Adam, 77, 85 Banffshire, 99 Barbour, John, 39 Basle, council of, 268 bastard feudalism, 12, 66, 70, 75, 78, 79, 80, 81, 89, 91 debate over, 59‒64 Beaton, James, archbishop of Glasgow, 310 Beauchamp, Thomas, earl of Warwick, 69, 84, 87 Beaufort, lady Margaret, 122 Beaumanoir, Philippe de, 223 Bedford duke of see Lancaster, John of earl of see Russell, Francis Begbie, manor house of, 49, 53, 57 Bellenden, John, 275 Bellenden, John, of Auchnoull, 318 Berkeley family, 77, 81, 90 Berkeley, Maurice, 79 Berwick, 98 Berwickshire, 96 Biccarton, John, 162 Black Death, 68, 92 Black Prince see Edward Black, Robert, 213 Blackadder, Andrew, of that Ilk, 221 Blackford, Thomas, 219 Blackness, castle of, 242 Blind Hary, 39 bloodfeud see feud Boece, Hector, 39, 248‒51, 253, 255, 267, 274‒5, 277‒8 Bohun, William de, earl of Northampton, 82‒3 Bologna, university of, 276 Bondington, 242‒3

347

bonds, bonding, 11‒12, 14, 15, 26‒9, 155, 173‒4, 176, 179 and covenanting tradition, 155‒60, 162, 163, 165, 168‒70 see also caution, acts of; friendship, bonds of; general bonds; maintenance, bonds of; manrent, bonds of; political bonds; recognisances; religious bonds Book of Common Order, 165 Borders, 27, 173‒4, 177‒8, 183, 186‒7, 223‒4; see also Debatable Lands; Middle March; Middle Shires; West March Borthwick, William, 1st lord, 110, 119 Borthwick, William, 7th lord, 309‒10, 316 Borthwick, Sir William, of Catcune, 49n, 50, 51, 54n Bothwell, Adam, bishop of Orkney, 310, 317 Bothwell, earls of see Hepburn, James; Stewart, Francis Botiller, John, 79 Bourbon dynasty, 334 Bourbon, Louis de, prince of Condé, 166 Bower, Walter, 39, 56‒7, 216, 225, 240, 251, 267 Bowes, Robert, 298 Boyd, Alexander, 110 Boyd, Robert, 1st lord, 109‒10, 119 Boyd, Robert, 5th lord, 160, 309‒10, 316 Boyd, Thomas, of Kilmarnock, 213 Brandenburg, 258n Branxholme, 173 Brechin, 253 Brets and Scots, laws of, 211 Brotherton, Thomas, earl of Norfolk, 71, 82 Broxburn, 242 Bruce, The, 39 Bruges, 14, 258‒9 Bruno, Giordano, 326 Brut chronicle, 39, 209 Brutus, 133 Bryan, Guy de, 86 Buccleuch, earl of see Scott, Walter Buchan earldom of, 102 earls of see Douglas, Robert; Stewart, Alexander

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KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Buchanan, George, 16, 266‒7, 269, 274, 277‒81, 293, 313, 324, 335n, 340 Bullinger, Heinrich, 293 Bunkle, lordship of, 42, 50‒1, 54 Burghley, lord see Cecil, Sir William Burgundy, 6 and Scottish courtly culture, 14, 253, 261‒3 Buridan, Jean, 271 Burns, Robert, 266 Bute, 221, 232 Buttergask, Adam, 99, 118 Byres, 109 Cairncorce, Nicol, of Colmeslie, 186 Cairncorce, Walter, of Lingill, 186 Caithness, earls of see Crichton, George; Sinclair, George Calder, castle of, 53 Calder, William, thane of Cawdor, 231 Calderwood, David, 159‒60, 167, 305 Caligula, Roman emperor, 274 Cambridge, 125 university of, 122 Cambridgeshire, 72 Cambuskenneth abbey of, 259 statute of, 229n camels, 197 Campbell family, 24, 317 Campbell, Alexander, bishop of Brechin, 310 Campbell, Archibald, 4th earl of Argyll, 157, 159 Campbell, Archibald, 5th earl of Argyll, 161, 307‒8, 316 as lord Lorne, 157, 159 Campbell, Colin, 1st earl of Argyll, 109‒ 10, 119 Campbell, Colin, 3rd earl of Argyll, 94 Campbell, lord, title of, 39 Campbell, Matthew, master of Loudoun, 160 canon law, 46, 250, 273 Canongate, 301 Canterbury Tales, 132 Cantilupe, Nicholas, lord, 85 Carleton, Sir Dudley, 324 Carlisle, castle of, 180‒1

Carlyle, Michael, 4th lord, 309‒10, 312 Carmichael, James, 159 Carolingian Empire, 199, 203 Carrick, earls of see Robert III; Stewart, David Carswell, John, bishop of the Isles, 310 Casket Letters, 311 Cassillis, earl of see Kennedy, Gilbert Cathcart, Alan, 4th lord, 308 Catherine de Bourbon, 326, 331, 334 Catholic earls, 298 Catiline, Catilines, 129, 130 caution, acts of, 174, 183, 186, 187, 189 Cawdor, thane of see Calder, William Cecil, Robert, 298‒9 Cecil, Sir William, later lord Burghley, 287, 288, 296‒7, 304 Cerdic, 226 Chalmer, William, 115 chapel royal, 252 Chapuys, Eustace, 290 Charlemagne, 199 Charles I, king of Great Britain, 9, 170, 228, 340 as prince, 323‒5 Charles IV, Holy Roman Emperor, 201 Charles V, Holy Roman Emperor, 262 Charles V, king of France, 205 Charles the Bold, duke of Burgundy, 261‒2 Chase-about Raid, 316‒17 Châtelherault, duke of see Hamilton, James Chaucer, Geoffrey, 131, 132, 224 Chester, 86 Cheviots, 187 Cheyne, Reginald, 97 Chisholm, William, bishop of Dunblane, 310, 318‒19 chivalry, 14, 17, 127, 131, 258, 275, 289‒90 Cicero, 128, 129, 130, 131, 275, 277, 281, 285 civil law, 273 Clan MacDuff, law of, 225 Claydon, William de, 79 Clinton, William de, earl of Huntingdon, 83 Clova, 55 Clydesdale, 241 Cochrane, Thomas, 247 Cockburn, Alexander, 50

INDEX

Coldingham, priory of, 57 Colet, John, 125 Cologne, 255n university of, 269‒70 Colville, John, 287n Commons, House of, 66, 69, 84, 90, 91 commonweal, 275‒6, 278 compensation, 13, 15, 17, 141‒2, 148, 151, 152, 153, 175‒6, 184; see also assythment; cró; diyya; galanas; wergeld Comyn, John, 220, 225n Comyn, Sir Richard, 51 conciliarism, 268‒9, 272, 274, 278, 280; see also resistance theory Condé, prince of see Bourbon, Louis de Confessio Amantis, 132 Confession of Faith, 162‒5, 167; see also King’s Confession Congregation, Lords of, 156‒64, 276, 286, 315; see also religious bonds Constance, council of, 268‒9 Constantine, Roman emperor, 274 Cope, William, 285 coronation oath, 168‒70 Coterel family, 81 Counter-Reformation, 8, 314 court of session, 136‒7, 143, 149, 151 Courtenay, Hugh de, earl of Devon, 84 covenants, covenanters, 159‒60, 162, 165, 167, 170, 267‒8; see also National Covenant; Solemn League and Covenant Craig, John, 276‒7 Craig, Thomas, 268 Craigmillar, castle of, 311, 317 Crawford, earls of see Lindsay Crécy, battle of, 87 Crete, 102 Crichton, Edward, 7th lord Sanquhar, 309‒10 Crichton, George, earl of Caithness, 108, 119, 242, 243 Crichton, James, earl of Moray, 235 Crichton, Robert, bishop of Dunkeld, 310, 317 Crichton, William, lord, 242 Crieff, 323 cró, 198, 211, 218

349

Cromwell, Thomas, 23 Crowland chronicler, 129 cruentation, 224 Cruithne, 226 crusades, 247n, 254, 322, 323, 340 Cunningham, Alexander, 213 Cunningham, Alexander, 5th earl of Glencairn, 157, 159, 160, 307‒8, 311, 316 Cunningham, Cuthbert, 3rd earl of Glencairn, 221 Cupar, 100, 112, 189 Currie, 171 Cyrus, 328 Dacre, Thomas, 3rd lord Dacre of the North, 285 Dalkeith, 242‒3 castle of, 38 Dalmellington, 213 Dalrymple, James, 1st Viscount Stair, 268 Damietta, 254 Darnley, lord see Stewart, Henry David II, king of Scotland, 42, 97, 99, 100, 101, 102, 115, 116, 215, 217, 225, 229n, 238 David, king of the Jews, 226, 323 Debatable Lands, 177 Delitiae Poetarum Scotorum, 326 Delves, John, 86 Denmark, 297, 334 Derby, earl of see Grosmont, Henry of Derbyshire, 85 Despenser family, 80‒1 Despenser, Hugh, the younger, 81 Devereux, Robert, earl of Essex, 299 Devon, 84 earl of see Courtenay, Hugh de Dicson, Alexander, 326 diplomacy, 13‒14, 17, 162, 177, 187, 273, 283‒300, 314‒15 of James III, 247, 261‒3 see also England Dischington, William, 100, 102, 118 Diss, 122 diyya, 196‒8 Dominicans, 276 Domitian, Roman emperor, 274 Douglas family, 24, 40, 101, 102, 105‒6, 116, 317

350

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Douglas castle of, 228 countesses of see Douglas, Margaret; Sinclair, Beatrice earldom of, 48 Douglas, Andrew, 52 (fig 2.2) Douglas, Archibald ‘the Grim’, 3rd earl of Douglas, lord of Galloway, 48, 51, 52 (fig 2.2), 101, 118, 238 Douglas, Archibald, 4th earl of, 102, 104, 119, 231 Douglas, Archibald, 5th earl of, 106, 232 Douglas, Archibald, 5th earl of Angus, 111, 120 Douglas, Archibald, 8th earl of Angus, 178, 308 Douglas, Archibald, earl of Moray, 233, 235, 236 Douglas, Archibald, earl of Wigtown, 238 Douglas, Archibald, lord of Douglas, 52 (fig 2.2) Douglas, Archibald, lord of Liddesdale, 52 (fig 2.2) Douglas, Eleanor, 52 (fig 2.2) Douglas, Elizabeth, 43 (fig 2.1), 57 Douglas, George, 1st earl of Angus, 40, 43 (fig 2.1), 46‒51, 52 (fig 2.2), 53‒7 Douglas, George, of Longniddry, 188 Douglas, Henry, of Borg, 243 Douglas, Hugh, earl of Ormond, 233 Douglas, Isabella, countess of Mar, 43 (fig 2.1), 48, 50‒1, 52 (fig 2.2), 55 Douglas, James, ‘of Lothian’, 52 (fig 2.2) Douglas, James, 2nd earl of Douglas and Mar, 43 (fig 2.1), 46‒51, 52 (fig 2.2), 53‒5 Douglas, James, 4th earl of Morton, 28, 157, 159, 163, 294n, 303‒4, 308, 311, 316, 317 Douglas, James, 9th earl of, 15, 220, 227‒45 passim Douglas, James, earl of Avondale and 7th earl of Douglas, 106‒7, 108, 119 Douglas, James, lord of Douglas, 52 (fig 2.2), 96, 118 Douglas, James, of Dalkeith, 38, 48, 51, 52 (fig 2.2), 54‒5 Douglas, John, 52 (fig 2.2) Douglas, Margaret, lady Buccleuch,

countess of Bothwell, 181 Douglas, Margaret, lady of Galloway, countess of Douglas, 238 Douglas, Robert, 242 Douglas, Robert, earl of Buchan, 308 Douglas, William, 98 Douglas, William (d.c.1274), 52 (fig 2.2) Douglas, William (Dalkeith line), 52 (fig 2.2) Douglas, William, 1st earl of Douglas and Mar, 43 (fig 2.1), 45‒9, 51, 52 (fig 2.2), 54, 101, 115, 118 Douglas, William, 2nd earl of Angus, 43 (fig 2.1), 57 Douglas, William, 6th earl of, 107 Douglas, William, 8th earl of, 14‒15, 108, 109, 220, 228, 229‒30, 235‒9, 241 Douglas, William, lord of Douglas, 52 (fig 2.2) Drumcross, 213 Drummond family, 220 Drummond, David, 2nd lord, 308 Drummond, John, lord, 112, 113, 114, 116, 120 Drummond, lord, title of, 39 Drummond, Malcolm, lord of Mar, 43 (fig 2.1), 48, 50‒1, 52 (fig 2.2), 55‒6 Drury, Sir William, 304, 313, 319 Dryfe Sands, battle of, 181 Du Bartas see Salluste, Guillaume, sieur du Bartas Dudley, Edmund, 127 Dudley, John, 125 Duffus, 236 Dukagjini, Lekë, 198 Dumbarton, 107, 110 castle of, 233 Dumfries, 101, 109, 110, 220 Dunbar, 319 Dunbar, George, earl of March, 101 Dunbar, Patrick, 221 Dunbar, William, 133 Duncan, earl of Fife, 225 Duncan, earl of Lennox, 240 Dundas family, 241 Dundas, Archibald, 236, 242 Dundas, Duncan, 236 Dundee, 100, 253 Dunfermline, 253

INDEX

Duntreath, barony of, 111 Durham, cathedral of, 57 Dysart, earl of see Murray, William Edinburgh, 54, 241, 275, 323 and James III, 14, 246, 252‒3 as seat of courts, 109, 136, 174 bonds made at, 156, 161, 169, 170, 187, 233, 301 castle of, 101, 286, 319 general council at, 51 justice ayres at, 101, 110 Treaty of (1328), 96 Edmonstone, William, of Duntreath, 110, 111, 119, 120 Edward I, king of England, 73, 75, 77, 78, 80, 81, 82, 83, 94, 95, 265 Edward II, king of England, 62, 63, 73, 75, 76, 77, 78, 80, 91 Edward III, king of England, 66, 69, 73‒4, 76, 81‒8, 90, 91, 92, 98 Edward IV, king of England, 210 Edward, the Black Prince (Prince of Wales), 72, 84, 86, 87, 92 Eglinton, earls of see Montgomery Eglinton, Hugh, 100, 118 Egypt, 254 Eilean Donan (Wester Ross), 97 Elgin, 97, 99, 236 Elizabeth I, queen of England, 162, 280‒1, 287‒8, 292‒300, 331 Elizabeth, princess of Denmark, 334 Elizabeth, princess of Scotland, 298 Elizabeth of York, queen of Henry VII, 288 Elliot family, 173, 176‒7, 178, 181‒3, 185‒ 6 Elliot, Gilbert, of the Stobs, 178, 179, 186 Elliot, Martin, 173, 179‒80 Elliot, Robert, of Redheugh, 173, 177, 178, 179‒80, 183, 185, 186, 189‒90 Elliot, Sym, 173 Elliot, Will, of Fiddletoun, 183 Elphinstone, Robert, 3rd lord, 308 Elphinstone, William, bishop of Aberdeen, 217n, 248‒50, 262, 263, 272 Empson, Richard, 127 England, 25, 98, 266 law of, 14, 28n, 173, 194, 207‒12, 216, 223

351

political culture of, 10, 13, 41, 121‒35 passim, 273 relationship with Scotland, 3, 14, 17, 104, 229, 230, 235, 237, 242, 275, 283‒300 passim, 314‒15 see also bastard feudalism; Borders; York–Westminster conference Enlightenment, 22 Erasmus, 274 Erington, Christopher, 291 Errol, earl of see Hay, George Erskine, John, 5th lord, 289 Erskine, John, 6th lord, later 1st earl of Mar, 157‒8, 159, 307‒8 Erskine, John, of Dun, 157 Erskine, Robert, justiciar, 100‒1, 116, 118 Erskine, Robert, 231, 233, 240‒1 Erskine, Thomas, 2nd lord, 111, 120 Eskdale, 177 Essex, earl of see Devereux, Robert estates see general council; parliament Eton College, 324‒6 Ettrick Forest, 177 Ewesdale, 177 Falkland, 98, 183, 298 ‘Fergus I’, king of Scotland, 278, 281, 332 feud, 11, 19, 25‒8, 136‒42, 154, 193‒226 passim and public justice, 136‒8, 143, 145, 149‒ 53, 173‒90 passim, 196, 207, 209 knightly feud, 201‒4 peace and justice in, 139‒43, 145‒54, 195‒6, 198‒9, 203, 220 settlement of, 13, 15, 136, 138, 140, 141, 144, 145, 146, 147, 148, 150, 153, 154, 174‒6, 182‒4, 193‒226 passim suppression of, 136, 143, 145, 185‒90 violence in, 27, 139‒42, 145, 147, 153‒4, 177, 184, 187‒8, 203, 220 see also act anent feuding; compensation Fife, 98, 189, 225 earls of see Duncan; Robert; Stewart, Robert First Bond of the Lords of the Congregation see religious bonds FitzAlan, Richard, earl of Arundel, 83, 86, 87 Fleming, John, 5th lord, 309‒10, 316, 317

352

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Fleming, Thomas, earl of Wigtown, 238 Flodden, battle of, 122, 128, 246, 288 Folville family, 81 Forbes, Alexander, 231 Forbes, James, 231 Forbes, William, 7th lord, 308 Foresti, Jacopo, da Bergamo, 260, 263 Forrester, Adam, 114‒15 Forster family, 185 Fortescue, Sir John, 129 Fowler, Thomas, 299 France, 6, 82n, 162‒3, 166, 208, 263, 273, 276, 292, 305, 318, 322, 323, 335 feuding in, 13, 25, 27n, 141, 204‒7, 212‒14, 216, 221‒3, 224 relationship with Scotland, 14, 17, 105, 110n, 287, 288‒9, 290‒1, 294 Francis I, king of France, 289, 292 Francis II, king of France, 293 Franciscans, 263, 269, 270 Franconia, 194 Frankfurt, 331 Frankish Empire see Carolingian Empire Fraser, Alexander, 6th lord Saltoun, 309‒10 Fraser, Hugh, 5th lord Lovat, 308 Frederick II, king of Denmark, 334 Frederick III, Holy Roman Emperor, 201n friendship, bonds of, 160, 161, 163, 164, 166 Friuli, 194 Froissart, Jean, 49 galanas, 211 Galloway, 97, 98, 238 justiciar of, 94 Garioch, 55 Garnesche, Sir Christopher, 126 Garter, Order of, 289‒90 Gaunt, John of, 1st duke of Lancaster, 69, 71 Gawane, Walter, 218 Geddes, Charles, of Rauchan, 184‒5 Gelderland see Gueldres, duchy of general assembly, 168‒9, 252, 335n general band see general bonds general bonds, 161‒2, 164, 165, 168, 170, 173, 177‒8, 187 general council, 51, 53n, 215, 230, 235, 245

Geneva Bible, 339 Germany, 13, 195, 199‒204, 207, 212, 261, 334 Ghent, 258 Gib, Robert, 290 gifts, 283‒300 passim Glamis, lord see Lyon, John Glanvill, 223 Glasgow, university of, 269, 272 Gledstanes, George, archbishop of St Andrews, 324 Glencairn, earls of see Cunningham Glenelg, 96 Gloucestershire, 65, 77, 81 God, 216, 249, 261, 265, 270, 334 and religious bonds, 159, 162, 163, 165, 167, 168, 169, 170, 171, 172 godparenthood, 166, 298 Golden Fleece, Order of, 289‒90 Golden Rose, 255 Gordon family, 317 Gordon, Alexander, bishop of Galloway, 310, 317 Gordon, Alexander, lord of Gordon, 1st earl of Huntly, 229, 231 Gordon, George, 2nd earl of Huntly, 112, 113, 114, 117, 120 Gordon, George, 4th earl of Huntly, 315 Gordon, George, 5th earl of Huntly, 307‒ 8, 315‒16, 317 Gordon, John, 11th earl of Sutherland, 308, 316 Gordon, William, 221 Gordon, William, bishop of Aberdeen, 310 gossipry, 166 Goulart, Simon, 330 Gower, John, 131, 132 Graces, 299 Graham, lord, title of, 39 Graham, William, 3rd earl of Montrose, 308 Graham, William, 5th earl of Menteith, 308 Graham, William, 7th earl of Menteith, 228‒9 Gray, Andrew, 1st lord, 108, 109, 119 Gray, Andrew, 2nd lord, 94, 113, 114, 120 Gray, Patrick, 4th lord, 309‒10, 312 Great Britain, 21

INDEX

Greeks, ancient, 328 Gregory of Rimini, 261 Greyfriars (Edinburgh), 169 Grosmont, Henry of, earl of Derby, 83 duke of Lancaster, 85 Grosscomburg, 254 Gueldres, duchy of, 247, 261‒2; see also Mary of Gueldres Guise family, 334 duke of see Lorraine Guise, Mary of, queen regent, 161, 163 Gunpowder Plot, 29 Guthrie, Alexander, of Kincaldrum, 187 Guthrie, master Alexander, 115 Guthrie, master David, of Kincaldrum, 110, 111, 112, 120 Habsburg dynasty, 262, 285 Haddington, 46, 48, 49, 58 Hadiths, 197 Haket, William, of Belses, 115 Hakewill, George, 325 Haldane, John, of Gleneagles, 112, 120 Haliburton, John, of Dirleton, 50 Hall, Edward, 285 Hamilton family, 163, 310, 315, 317 Hamilton, Sir Alexander, 51 Hamilton, James, 2nd earl of Arran, duke of Châtelherault, 163, 307‒8, 316 Hamilton, James, 3rd earl of Arran, 163 Hamilton, James, bishop of Argyll, 310 Hamilton, James, lord, 237 Hamilton, John, archbishop of St Andrews, 159, 310, 313 Hamilton, Patrick, of Samuelstoun, 188 Hamilton’s Catechism, 159 Harlaw, battle of, 104 ‘Harp, The’ (poem), 214, 215, 217 Harvey, Gabriel, 329 Havelberg, 258n Hawick, 173, 182, 238 hawks, 14, 290, 294 Hay, George, 7th earl of Errol, 307‒8, 311, 316 Hay, William, 7th lord Yester, 308 Hay, Sir William, of Lochariot, 57 Hector, 128 Heinrich II von Isenburg-Kobern, 254 Henderson, Alexander, 267‒8

353

Henry III, king of England, 63 Henry IV, king of England, 209 Henry IV, king of France, 326, 334 Henry V, king of England, 209, 210 Henry VI, king of England, 210, 229 Henry VII, king of England, 127, 210, 285‒6, 288 Henry VIII, king of England, 7, 121, 127, 128, 130, 273‒4, 288, 289‒92, 294 as Prince Henry, 122, 128 Henry, prince of Scotland, 285, 286, 292, 328, 340 Henryson, Robert, 262 Hepburn, James, 4th earl of Bothwell, 15, 301‒2, 305‒8, 310, 311‒19 Hepburn, Patrick, bishop of Moray, 310 Herdmanston, castle of, 49, 53, 54, 57, 58 Hermitage, castle of, 179 Herries, lord see Maxwell, John Highlands, 107, 177‒8, 183, 218, 280; see also Isles, lords of Hobbes, Thomas, 283‒4, 299‒300 Holstein, 203 Holy Land, the, 102 Holy Roman Empire, 263, 273, 289; see also Carolingian Empire; Germany Holyrood, abbey of, 51, 255 palace of, 251, 301 Home, Alexander, 239 Home, Alexander, 5th lord, 309‒10, 312 Home, David, of Wedderburn, 221 Home, John, of Cowdenknowes, 188‒9 Home, William, of Lessudden, 186 Homer, 329 honour, 38‒9, 50n, 144‒7, 153, 165, 184, 195, 198, 202‒4, 206, 209, 225, 281, 283, 285, 287, 302‒3 Hoppringle, James, of Whitbank, 188‒9 horses, 53, 287, 290‒1, 295 Howard, Henry, earl of Surrey, 121, 122, 128 Howard, Thomas, earl of Surrey, 128 humanism, 123, 260, 274, 275, 281, 326 Humbleton Hill, battle of, 56‒7, 104 Hume, David, of Godscroft, 340 Hundred Years War, 65 Hunter, Andrew, 218‒19 Hunter, John, 218‒19 Hunter, Thomas, 218‒19

354

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

hunting dogs, 295 Huntingdon, earl of see Clinton, William de Huntly, earls of see Gordon Iceland, 194 Innermeath, lord see Stewart, John Inverness, 97, 106 castle of, 234 Inverurie, 45 Ipswich, 125 Ireland, 21, 211, 298 Ireland, John, 250n, 261, 262, 263, 271 Isabella, duchess of Albany, countess of Lennox, 240 Islam, 196‒9 Isles, lords of see John, earl of Ross; MacDonald, Alexander Italy, 121, 123, 248, 260, 273, 334, 337 James I, king of Scotland, 8, 104, 105, 111, 223, 234, 240‒1 captivity and return, 104, 107, 116, 216‒17 opposition to, 16, 27, 106, 235, 278 James II, king of Scotland, 16, 108, 109, 249, 253, 259, 278 and earls of Douglas, 14‒15, 220, 227‒45 passim minority of, 106, 116 James III, king of Scotland, 5, 8, 14, 110, 112, 114, 115, 116, 229n, 246‒64 passim, 274 minority of, 109, 117, 244n opposition to, 4, 16, 111, 214n, 217‒18, 278 James IV, king of Scotland, 16, 94, 112, 114, 117, 217, 220, 221, 222, 274, 279 and Renaissance monarchy, 5, 8, 14 compared with James III, 246‒7, 249, 252, 258, 262‒3 relations with England, 285‒6, 288, 300 James V, king of Scotland, 5, 8, 16, 27, 127, 273n, 274, 275, 279, 287n relations with England, 286, 289‒92, 294, 300 relations with France, 14, 288‒91 James VI and I, king of Great Britain, 5, 9‒10, 19, 20, 21, 28, 29‒30, 267

and bloodfeud, 11, 173‒4, 177, 185, 187, 190 and Thomas Murray, 320‒40 passim English succession and union, 9‒10, 29, 30, 173, 281‒2, 286‒7, 288, 293‒300 passim, 331 political ideas of, 16‒17, 274, 277, 281, 285 writings of, 320‒2 Jardine of Applegarth, Sir Alexander, 184‒5 Jedburgh, 110, 111, 113, 178 Jeremiah see Lamentations Jerusalem, 254, 336 Church of Holy Sepulchre, 258 Jesus Christ, 156, 159, 162, 165, 168, 169, 170, 226, 254, 261, 339; see also Passion devotion Jewel, John, bishop of Salisbury, 293 Joan Beaufort, queen of James I, 232, 236 Job, 335 John XXII, pope, 265 John, earl of Ross, lord of the Isles, 229, 236‒7, 242 Johnstone family, 187 Johnstone, Archibald, of Wariston, 171 Johnstone, Sir James, 181, 183 Joshua, 265 Josiah, 339 Julius II, pope, 286 Julius Caesar, 129 Jupiter, 328 justice ayres, 247 justices of the peace (England), 63, 66‒9, 84‒5, 88‒9 justiciars, 93‒120 passim, 231, 232 Justinian, Roman emperor, 274 Kanun, 198 Keith, Robert, 95, 97, 118 Keith, William, 3rd Earl Marischal, 307‒8, 316 Kennedy, Gilbert, 4th earl of Cassillis, 166, 307‒8, 316 Kennedy, Gilbert, lord Kennedy, 109, 110, 111, 119 Kennedy, Gilbert, of Bargany, 110, 119 Kennedy, James, bishop of St Andrews, 272

INDEX

Kennedy, Quentin, abbot of Crossraguel, 166 Kildrummy, 55 castle of, 233 Killigrew, Sir Henry, 286 killing, 13, 144, 193‒226 passim; see also feud Kimmerghame, 45 Kincavil, 242‒3 King’s Bench, 63, 68‒9, 79‒81, 83, 88 King’s Confession (‘Negative Confession’), 159, 167‒71 king’s guard, 174 Kinmont Willie see Armstrong, William kinship, 2, 11, 90, 165, 166, 174‒5, 179, 184, 186, 190 male lineages, 37‒40, 44 role of, in feud, 137‒8, 141‒3, 146, 147, 149, 152‒4 kirk sessions, 186 Kirkcaldy, Sir William, of Grange, 305‒6 Kirkpatrick, Roger, 225 Kirriemuir, 51 Knapdale, 242 Knox, John, 157, 160, 165, 166, 267, 269, 314 his History, 157 Kobern-Gondorf, 254 Koblenz, 254 Kosovo, 198 Lamentations, 332‒40 passim Lanark, 227 Lanarkshire, 228; see also political bonds Lancashire, 85 Lancaster, dukes of see Gaunt, John of; Grosmont, Henry of Lancaster, Henry of, earl of Lancaster, 76, 85 Lancaster, John of, duke of Bedford, 72 Lancaster, Thomas of, earl of Lancaster, 62‒3, 71, 73, 74, 76, 77, 79, 80, 90 Landfried, 200‒1 Langholm, 190 Langland, William, 131, 132 Latimer, William, 74 Lauder, 111, 113 Lauder, Alan, 48, 50, 115 Lauder, Robert (elder), 96, 98, 105, 115, 116, 118

355

Lauder, Robert (younger), 98‒9, 105, 115, 118 Lauder, Robert, of the Bass, 50, 105, 119 law see Brets and Scots, laws of; canon law; civil law; Clan MacDuff, law of; lawyers; pleas of the crown; Roman law; shari‘a law; treason Lawson, James, 335n Lawson, Richard, 116 lawyers, legal profession, 175, 279 Leicester, 85 Leicestershire, 79 Leith, 162 Lennox countess of see Isabella; earls of see Duncan; Stewart, Matthew earl of see Stewart, Matthew earldom of, 111 Lepanto, battle of, 320‒31 passim Leslie, Andrew, 42, 43 (fig 2.1), 44 Leslie, Andrew, 5th earl of Rothes, 308, 316, 317 Leslie, George, 1st earl of Rothes, 109 Leslie, John, bishop of Ross, 310 Leslie, Walter, lord of Ross, 43 (fig 2.1) Liddale, Sir John, 51 Liddesdale, 173, 176‒7, 178, 179‒80, 183, 190 lordship of, 48, 51, 55‒6 Ligueurs, 334‒5 Lily, William, 125 Lincolnshire, 85 Lindores, Laurence of, 271 Lindsay, Alexander, 1st lord Spynie, 187 Lindsay, Alexander, 4th earl of Crawford, 229, 233, 235, 237 Lindsay, Alexander, lord of Glen Esk, 43 (fig 2.1), 47, 102, 103, 118 Lindsay, David, 42, 43 (fig 2.1), 44 Lindsay, David, 5th earl of Crawford, 112, 117, 120 Lindsay, David, 10th earl of Crawford, 307‒8, 311, 316 Lindsay, David, emissary, 287 Lindsay, David, of Glen Esk, 1st earl of Crawford, 102‒3, 118 Lindsay, Sir David, of the Mount, 133, 276 Lindsay, James, lord of Crawford, 43 (fig 2.1)

356

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Lindsay, James, lord of Crawford (son of above), 102, 118 Lindsay, Sir James, 225 Lindsay, John, lord Lindsay of Byres, 108‒9, 119 Lindsay, Patrick, 56 Lindsay, Patrick, 6th lord, 309‒10, 316‒17 Lindsay, Robert, of Pitscottie, 107, 247 Lindsay, Sir Walter, of Balgay, 187 Lindsay, William, of the Byres, 43 (fig 2.1), 50 Lindsay of Querrelhill family, 187‒8 Lindsay of Wodheid family, 187‒8 Linlithgow, 242 palace of, 289 Liverpool, assizes at, 85 Livingston family, 233, 234, 236, 241 Livingston, Alexander, of Callendar, 232, 233 Livingston, James, 233, 234, 236, 242 Livingstone, Alexander, of Callendar, 107‒8, 119 Livingstone, William, 6th lord, 309‒10, 317 Livy, 275 Lochaber, 96 Logierait, 106 Lok, Henrie, 329 London, 122, 125, 128, 282, 285, 288, 290, 292, 294, 296, 336 Lords of the Congregation see Congregation, Lords of lordship, 2, 5, 10, 11, 23‒5, 35, 49, 55, 129, 137‒8, 142, 146, 149, 174‒5, 179‒80, 184, 186, 190 exercise of, in England, 11‒12, 59, 60‒2, 91 language of, 158, 161, 163, 241, 244 see also kinship Lorraine, Francis of, duke of Guise, 166 Lorraine, Henry of, duke of Guise, 294 Lothian, 96, 177, 242 Louis IX, king of France, 205 Louvain, university of, 122 Lovat, lord see Fraser, Hugh Low Countries see Netherlands Lucy, Anthony de, 98 Lydgate, John, 131 Lyle, Robert, 1st lord, 110, 112, 120

Lyle, Robert, 2nd lord, 112, 113, 114, 120 Lyon, John, 3rd lord Glamis, 112, 113, 114, 120 Lyon, John, 8th lord Glamis, 309‒10, 316 Maccabeus, 265 MacDonald, Alexander, earl of Ross, lord of the Isles, 94, 107, 108, 119, 232, 233‒4, 239, 240 MacDuff see Clan MacDuff, law of Mackenzie, Sir George, of Rosehaugh, 268 Madeleine of Valois, queen of James V, 288‒9 Magdalen college, 125 Magna Carta, 266 Magnus, Thomas, 286 maintenance, bonds of, 3, 15, 138, 142, 155‒6, 158, 160, 166, 171, 174, 182 Mair, John, 16, 267, 269‒71, 274‒5 Maitland, John, of Thirlestane, 23 Maitland, William, of Lethington, 287, 292, 318‒19 Malcolm, John, 322‒3, 340 manrent, bonds of, 3, 14, 15, 19, 138, 142, 155, 158‒9, 174‒5, 185 Mar countesses of see Douglas, Isabella; Mar, Margaret of; Stewart, Margaret of earldom of, 45‒6, 48, 50, 53, 55, 58, 233, 240‒1 earls of see Douglas, William; Douglas, James; Erskine, John; Mar, Donald of; Mar, Thomas of; Stewart, Alexander Mar, Donald of, earl of Mar, 43 (fig 2.1) Mar, Margaret of, countess of Mar, 43 (fig 2.1), 45‒6, 48, 52 (fig 2.2) Mar, Thomas of, earl of Mar, 43 (fig 2.1), 44‒6, 51, 53, 56 Marcellus, 128 March, earl of see Dunbar, George March, earl of (English) see Mortimer, Roger Marches, 231, 288; see also Borders Margaret of Denmark, queen of James III, 247n, 259, 260, 263 Margaret Tudor, queen of James IV, 258, 285, 288 Marischal, Earl see Keith, William Mars, 128, 328

INDEX

Marxism, 22, 26 Mary of Burgundy, 262 Mary of Gueldres, queen of James II, 239, 252, 253, 259, 260 Mary of Guise, queen of James V, 288 Mary, Queen of Scots, 5, 9, 24, 166, 274, 280 downfall, 15, 16, 277, 278, 301‒19 passim relationship with England, 292‒3 masques, 299 Maximilian I, Holy Roman Emperor, 262 Maxwell family, 187 Maxwell, John, 4th lord Herries, 309‒10, 316 Maxwell, John, 8th lord, 181, 308 Maybole, 166 McCulloch, Archibald, of Ardwell, 222 McCulloch, Patrick, 222, 223 McFarlane, Andrew, 221 Mearns, lairds of, 157 Meill, Alexander, 219 Meldrum, William, sheriff of Aberdeen, 99, 100, 118 Melginch, 55 Melville, Andrew, 322‒3, 335n, 340 Melville, Sir James, of Halhill, 286‒7, 292, 293, 294 Melville, Sir Robert, 304 Menteith, earls of see Graham Methven, lord see Stewart, Henry Mewtas, Sir Peter, 286 Middle March, 178 Middle Shires, commissioners for, 181, 190 Milton, John, 130 Moleyns, Sir John, 87 Montenegro, 198 Montgomery, Hugh, 1st earl of Eglinton, 221 Montgomery, Hugh, 3rd earl of Eglinton, 307‒8 Montrose, earl of see Graham, William Monzievaird, 220‒1 Moray earls of see Crichton, James; Douglas, Archibald; Randolph, John; Randolph, Thomas; Stewart, James regality of, 97 More, Thomas, 121, 129 Mortimer family, 80‒1

357

Mortimer, Roger, earl of March, 82 Morton earl of see Douglas, James earldom of, 163 Moselle, river, 254 Mowbray, John, duke of Norfolk, 62 Mowbray, Thomas, earl of Nottingham, 72 Muhammad, 198 Munro, William, of Foulis, 218 Murdack, Juliana, 79 Murray family, 220, 238 Murray, Andrew, guardian of Scotland, 98 Murray, Sir Andrew, 225 Murray, Anthony, of Dollerie, 323 Murray, Patrick, of Woodend, 323 Murray, Mr Thomas, 320‒40 passim Murray, Thomas, 16 Murray, William, 1st earl of Dysart, 324 Murray of Tullibardine family, 323 Muschet, David, 95 Muschet, William, of Cargill, 96, 97, 118 Muses, 331 Musgrave, Thomas, 179 Mynours, painter, 288 Nairn, Robert, 115 National Covenant, 163, 167, 169‒70, 171, 266 Nau, Claude, 313, 318 Navarre, 289 Negative Confession see King’s Confession Neilson, Maurice, of Dalrymple, 213 Nero, Roman emperor, 274 Netherlands, 263, 330, 334; see also Burgundy Neville, Sir Ralph, 74 Neville, Richard, earl of Warwick, ‘the Kingmaker’, 127 ‘New Monarchy’, 6‒8 Newbattle, abbey of, 99 Newburgh, 225 nominalism and realism, 270‒2 Norfolk duke of see Mowbray, John earl of see Brotherton, Thomas North Berwick, barony of, 45, 48 North Berwick, William of, 49 Northampton, earl of see Bohun, William de

358

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Northamptonshire, 79 Northumberland, earl of see Percy, Henry Norton, John, 331 Nottingham, earl of see Mowbray, Thomas Nottinghamshire, 72, 85 number theory, 254 Occam, William of, 270, 271, 272 Ochiltree, lord see Stewart, Andrew Ogilvy of Craig family, 187‒8 Ogilvy, Archibald, 221 Ogilvy, James, 5th lord, 309‒10, 316 Ogilvy, James, master of, 187 Ogilvy, Patrick, 105, 119 Ogilvy, Walter, of Beaufort, 233, 236, 241 Old Testament, 226 Oliphant, Laurence, 1st lord, 113, 114 Oliphant, Laurence, 4th lord, 309‒10, 312 Ordo Justiciarie, 108 Orkney and Shetland, 290 Orkney, earls of see Sinclair Ormond, earl of see Douglas, Hugh Otterburn, battle of, 48, 49, 50 Oxford, 125 university of, 122, 269 oyer and terminer, commissions of, 77‒8, 81‒3, 88‒9 Pace, Richard, 125 Painswick, 77 papacy, 17, 168, 252, 268‒9, 320, 323, 332, 335, 338; see also Golden Rose; sword and cap pardons, 210, 212, 249 Paris, 289 Scots college at, 305 university of, 113, 115, 269, 271 see also St Bartholomew, massacre of; Sorbonne parliament, 194, 215, 216‒18, 229, 233, 234‒5 lords of, 39 of 1368, 100 of 1451, 239 of 1452, 235, 236 of 1487, 112 of April 1567, 305‒9, 318 of 1640, 169n of England, 78, 84, 273

powers of, 276, 279, 281 see also general council Pasarella, Giacomo, of Imola, 248‒50, 255 Passion devotion, 14, 255‒8 Paston letters, 62 Pembroke, earl of see Valence, Aymer de Percy, Henry, 4th earl of Northumberland, 127, 128 Percy, Henry, lord, 74 Percy, Sir Walter, 225n Persians, ancient, 328 Perth, 111, 160, 161 Blackfriars, 235 Perthshire, 99, 323, 326 Phileremos, Mount, monastery of, 253‒4 Philip II, king of Spain, 334 Philip IV, king of France, 205 Philip, king of Macedon, 328 Philip the Good, duke of Burgundy, 253 pilgrimages, 247, 254 pleas of the crown, 96, 213 Plumpton, Robert, 72 Pole, William de la, duke of Suffolk, 62 political bonds, 14‒15, 155, 160 Ainslie bond, 14‒15, 301‒19 passim Albany–Douglas bond, 231‒2, 237 Douglas–Crawford–Ross bond, 220, 233‒4 Hamilton bond, 315 Lanark bond, 14, 227‒45 passim political thought see absolutism; commonweal; conciliarism; coronation oath; republicanism; resistance theory; sovereignty; tyranny Priam, 128 privy council, 166, 179, 181, 183, 186‒9, 280n privy seal, 218, 221‒2, 280n Protestant movement, 156‒8, 160, 162, 164‒5, 166 psalms, 250n, 339‒40 Puchheim, Georg von, 201n Qur’an, 197 Radcliffe, Robert, 5th earl of Sussex, 292 Ramsay, John, 249 Ramsay, John, lord Bothwell, 112, 120

INDEX

Randolph, John, earl of Moray, 99 Randolph, Thomas, 287n, 292, 294 Randolph, Thomas, earl of Moray, 95‒8, 99, 118 realism see nominalism and realism recognisances, 210 Reformation, 5, 157 effect of, on Scotland, 6‒7, 12, 22, 144‒5, 160‒4, 169, 171, 252, 259n, 282, 289 see also Counter-Reformation; Protestant movement; religious bonds regalities, 178, 180, 215 Regensburg, 254 Regiam Majestatem, 219n, 222‒3, 224 Reid, John, 303‒4, 311‒12 religious bonds, 155‒72 passim First Bond of the Lords of the Congregation, 158‒60, 164, 316 see also covenants; King’s Confession remissions, 206‒7, 211, 213‒15, 216, 218‒22, 223; see also pardons Renaissance, 14, 19, 21, 121, 251n, 274, 300, 335 in England, 13, 121, 122 ‘Renaissance Monarchy’, 6‒8 see also humanism republicanism, 128‒31, 274‒5, 280‒1 resistance theory, 272, 277‒8, 314‒15; see also tyranny respites see remissions Restalrig, chapel of, 14, 248, 249, 251‒61 Restoration, 268 Revelation, 340 revocation, acts of, 241 Rhind, John, 187‒8 Rhind, William, of Kerse, 187‒8 Rhodes, 254 Riccio, David, 316 Richard II, king of England, 69, 92 Robert I, king of Scotland, 42, 214‒15, 220, 225n, 229n, 265, 270 and justiciars, 94, 95, 96, 97, 99, 115, 116 see also Bruce, The Robert II, king of Scotland, 40, 42, 46, 101, 102, 103, 116, 215, 238 as Steward, 38‒9, 100, 101 Robert III, king of Scotland, 40, 54, 104, 106, 111, 116, 216

359

as earl of Carrick, 102, 103 Robert, earl of Fife, 226 Rome, 255 ancient Rome, 274, 277, 327‒9 Roman law, 273 see also papacy Romeo and Juliet, 220 Rose, Hugh, of Kilravock, 218, 221, 231 Ross, earls of see John, earl of Ross; MacDonald, Alexander; Ross, William of Ross, James, 4th lord, 309‒10, 316 Ross, William of, 5th earl of Ross, 99, 100, 118 Rothes, earls of see Leslie Rothesay, duke of see Stewart, David Rouen, 166 Roxburgh, 109 Russell, Francis, 2nd earl of Bedford, 292 Rutherford, Samuel, 267 Ruthven, William, 5th lord, 309‒10 Sabadino, Giovanni, degli Arienti, 260, 263 Sachsenspiegel, 200, 203 Sadler, Ralph, 286, 291 St Albana, 254, 256 St Andrews, 161‒2, 252, 253 cathedral of, 289 St Salvator’s College, 272 university of, 269, 271 St Anne and St Gertrude, chapel of, 258n St Bartholomew, massacre of, 335 St Basil, chapel of, 259n St Brigit of Sweden, 251 St Duthac, 247 St Erhard, chapel of, 254 St Eucherius, 254 St Margaret, 253, 260 St Matthias, 254‒5 St Michael, Order of, 289‒90 St Ninian, 247 St Quirinus, chapel of, 14, 254, 256 St Triduana, 14, 252‒3, 259 Sallust, 129, 266 Salluste, Guillaume, sieur du Bartas, 330, 334 Saltoun, lord see Fraser, Alexander Sandilands, James, 1st lord Torphichen, 309‒10, 316

360

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

Sandilands, James (elder), 52 (fig 2.2) Sandilands, Sir James (younger), of Calder, 51, 52 (fig 2.2), 53, 54 Sandilands, Sir James, 183 Sanquhar, lord see Crichton, Edward Satan, 156, 158 Sauchieburn, battle of, 114, 259, 262 Saudi Arabia, 13, 196‒8, 212 Savile, Sir Henry, 325 Saxons, 225 Schwäbisch Hall, 254 Scipio, 128 Scone, 95 parliament at, 100 Scott family, 183 Scott, Adam, of Allanhaugh, 182 Scott, David, 182 Scott, John, of Borthwick, 182 Scott, Robert, of Allanhaugh, 182 Scott, Walter, of Buccleuch, 182 Scott, Walter, 1st earl of Buccleuch, 181, 190 Scott, Sir Walter, of Buccleuch, 173, 174, 176, 178, 179‒85, 189‒90 Scott of Goldielands family, 178, 180 Scott of Haining family, 178 Scott of Harden family, 178, 180 Scott of Tushielaw family, 178 Scotus, John Duns, 269‒70, 272 Scrope, Sir Geoffrey, 82‒3 Scrope, Thomas, 10th lord, 181 Selkirk, 190 Selkirkshire, 178 Sempill, Robert, 3rd lord, 309‒10, 315, 316 Seneca, 250 session, court of, 136‒7, 143, 149, 151, 175, 188, 189 Seton, George, 5th lord, 309‒10, 315, 316, 317 Shakespeare, William, 121 Shareshull, Sir William, 83 shari‘a law, 196‒8, 213 sheriffs, 96, 179, 213, 218 in England, 62‒6, 68, 76, 78, 79‒80, 83‒ 6, 88‒91 Shetland see Orkney and Shetland Shropshire, 79 Sidney, Sir Philip, 121, 330

Simler, Josiah, 293 Sinclair, Beatrice, countess of Douglas, 238 Sinclair, George, 4th earl of Caithness, 307‒8, 316 Sinclair, Sir Henry, 39 Sinclair, Henry, 3rd lord, 262 Sinclair, Henry, earl of Orkney, 57 Sinclair, James, of Longformacus, 43 (fig 2.1), 44, 51, 57 Sinclair, John (junior), of Herdmanston, 43 (fig 2.1), 44‒5, 49, 51 Sinclair, John (senior), of Herdmanston, 43 (fig 2.1), 44 Sinclair, lord, title of, 39 Sinclair, Margaret, countess of Angus, 41, 43 (fig 2.1), 44 Sinclair, Walter, 43 (fig 2.1), 44, 49, 50, 51 Sinclair, William, 4th lord, 309‒10, 312 Sinclair, William, earl of Orkney, 108, 119, 242 Sinclair, William, of Herdmanston, 43 (fig 2.1), 57 Sixtus V, pope, 332, 334 Skelton, John, 13, 121‒35 passim and Cardinal Wolsey, 122‒3, 125‒31 influence of Roman political models on, 128‒33 influence of medieval learning on, 131‒3 poems of: Collyn Clout, 126; Howe the Douty Duke, 128; Lawde and Prayse, 127; Magnyfycence, 122, 126, 131; Phyllyp Sparowe, 122; Speke, Parott, 122, 126; The Bowge of Courte, 126; The Garlande of Laurell, 122; Upon the Dolorus Dethe, 125, 127; Why Come ye Nat to Courte, 125, 126 views on nobility and king, 121‒7, 131‒3 Skene, Sir John, 224 slains, letters of, 142, 175, 184, 214 Smith, Jude, 336 Solemn League and Covenant, 266 Somerville, James, 5th lord, 308 Somerville, Thomas, 105, 119 Song of Songs, 335 Sorbonne, 269 sovereignty, 272, 276, 280 Spain, 295, 323, 330‒1 Spanish Armada, 331, 332

INDEX

Spanish match, 325 Spenser, Edmund, 121, 329 Spottiswoode, John, archbishop of Glasgow, 324 Sprouston, 238 Spynie, lord see Lindsay, Alexander Staffordshire, 79 Stair, Viscount see Dalrymple, James Standsfield, Sir James, 224 Starkey, Thomas, 125, 129, 130 Steward, Robert the see Robert II Stewart family, 39, 40, 101, 116 of Angus-Bunkle, 58 Stewart monarchy, 5, 17, 19, 21‒2, 26‒7 Stewart, Alexander, 38 Stewart, Alexander, duke of Albany, 111, 120, 229n Stewart, Alexander, earl of Buchan, ‘wolf of Badenoch’, 102, 103, 104, 115, 118 Stewart, Alexander, earl of Mar, 104, 106, 119, 232 Stewart, Andrew, lord Avondale, 109, 111, 112, 116, 119, 120 Stewart, Andrew, 2nd lord Ochiltree, 160, 309‒10, 316 Stewart, David, duke of Rothesay, 194 Stewart, David, earl of Carrick, 118 Stewart, Edward, 290 Stewart, Egidia, 102 Stewart, Elizabeth, 44, 47, 51 Stewart, Esmé, 295 Stewart, Francis, 5th earl of Bothwell, 178, 181 Stewart, Henry, lord Darnley, 224, 301, 311, 317 Stewart, Henry, 2nd lord Methven, 308 Stewart, James, commendator of St Andrews, earl of Moray, 161, 287, 308, 311, 316 Stewart, John, duke of Albany, 127, 128 Stewart, John, earl of Angus and lord of Bunkle, 42, 44 Stewart, John, 4th earl of Atholl, 307‒8, 316 Stewart, John, 4th lord Innermeath, 309‒10, 312 Stewart, John, of Crookston, 38‒9 Stewart, Sir Lewis, of Kirkhill, 228‒9 Stewart, Margaret, countess of Angus and

361

Mar, 12, 37, 40‒3 (fig 2.1), 44‒51, 52 (fig 2.2), 53‒8 Stewart, Marjory, 102 Stewart, Mary, 43 (fig 2.1), 55, 111 Stewart, Matthew, 4th earl of Lennox, 307‒8, 317 Stewart, Murdoch, duke of Albany, 103, 104, 118, 232 Stewart, Robert, bishop of Caithness, 310 Stewart, Robert, earl of Fife and duke of Albany, 48‒9, 103, 104, 116, 118, 119, 213, 231, 240 Stewart, Thomas, earl of Angus, 41‒2, 43 (fig 2.1), 44, 47, 57 Stewart, Walter, 38 Stewart, Walter, lord of Brechin, 103‒4, 118 earl of Atholl, Caithness and Strathearn, 106, 115, 119 Stewart, William, of Angus, 51, 57 Stewarton, lordship of, 15, 230, 238‒41, 245 Stirling, 104, 111, 160, 161, 220, 229, 235, 241, 259, 319 castle of, 229, 232, 252 confederacy of, 312 statute of, 216 Stocker, Thomas, 336 Strathalva, 55 Strathbrock, 242 Strathearn, earldom of, 229 Suffolk duke of see Pole, William de la sheriff of, 82 sheriff ’s clerk of, 80 Surrey, earls of see Howard, Henry; Howard, Thomas; Warenne, John de Sussex, earl of see Radcliffe, Robert Sutherland, peerage case, 228 earl of see Gordon, John Swabia, 334 Switzerland, 293, 334 sword and cap (papal gifts), 286, 289 Syrians, ancient, 328 Tacitus, 199 tailzies, 38, 229n Talbot, Richard, 98 Tantallon, castle of, 45, 47, 48‒50, 53

362

KINGS, LORDS AND MEN IN SCOTLAND AND BRITAIN

taxation, 3, 17, 28, 279 Thowles, John, 219 Threave, castle of, 238 Torphichen, lord see Sandilands, James Touris, William of, 249n, 263 Toussain, Daniel, 336 trailbaston, 63, 80 treason, 109, 166, 234‒5, 242 Tremellius, Emmanuel, 339 Trier, 14, 254‒5, 256 Trinity College, 252, 259 Troy, 329 Turgot, 260 Turkey, 247n, 291, 329 Turnbull, William, bishop of Glasgow, 272 Tweedie, James, of Drumelzier, 227 tyranny, 81, 126‒7, 129, 274‒8, 334, 338 Umfraville family, 42 union of crowns see James VI and I Urquhart, castle of, 234 Utopia, 121 Valence, Aymer de, earl of Pembroke, 62, 77, 79 Valois dynasty, 285 Van der Myl, Abraham, 330 Vassy, 166 Vaus, Robert, 239 Vaux, John de, 79 Venus, 328 Verac, Monsieur, 294n Vergil, Polydore, 129 via antiqua and via moderna, 270‒2, 274 Virgin Mary, 261

Wake, Isaac, 324 Wales, 86, 139; see also Welsh marches Wallace, The, 39 Wallace, Matthew, of Craigie, 221 Wallace, William, 221

Walsingham, Sir Francis, 287, 294, 296 Warenne, John de, earl of Surrey, 73 Wars of the Roses, 59, 131, 201 Warwick, earls of see Beauchamp, Thomas; Neville, Richard Warwickshire, 65, 66, 79, 84 Weldon, Sir Anthony, 21 Welsh marches, 72, 211 Wemyss, Patrick, 287n wergeld, 198, 211, 218 West March, 109, 183, 187 West, Nicholas, 285 Westminster, 63, 122; see also York–Westminster conference Wharton, Thomas, 1st baron, 291 Whithaugh, 179, 183 Whittinton, Robert, 125 Wigtown, 97, 239 earldom of, 15, 230, 238‒41, 245 earls of see Douglas, Archibald; Fleming, Thomas William I, king of Scotland, 213, 214, 215 Wilson, Thomas, 287 Winchester, statute of, 68, 76 Windsor, 289 Wolsey, Thomas, cardinal, 122, 123, 125, 126, 127, 128, 129‒30, 131 Worcestershire, 84 Worms, 262 Wotton, Edward, 294‒6 Wyatt, Thomas, 121, 122 Wyntoun, Andrew of, 39, 97 Yester, lord see Hay, William York–Westminster conference, 312‒13 Young, Donald, 213 Young, George, 287 Young, Peter, 335n Zuiderzee, 261 Zutphen, 261