Document 838

Was it murder? John Comyn of Badenoch and William, Earl of Douglas

Author(s): W D H Sellar

Copyright holder(s): Dr Christine McGladdery, W D H Sellar: Reproduced with the kind permission of Edinburgh University Press

The following passage occurs in Sir Gilbert Hay's "Buke of the Law of Armys" written in 1456, a translation, albeit a rather free one, of Honoré Bonet's "L'Arbre des Batailles", completed in 1387. In it Hay discusses the legality and morality of a challenge to combat, and concludes that it transgresses all laws, both God's and man's:

"Bot before or I schaw thir casis [some exceptional cases], I will first prove opynly that gage of bataille be all lawis is forbedyn expressly, bathe in Goddis law and mannis law, in commoun lawe and canoune lawe, and als, be gude resoun naturale, quhilk is callit lawe of nature, and als, be the law civile to geve gage of bataill or to tak. And for sik querele, to fecht is a thing condampnyt bathe and reprovit be all lawis. [NOTE: passage in italics starts here]And first and formast, I preve it be resoun naturale. For gage of batail cummys ay of forethocht felony. Bot naturally all maner of creature naturale has a passioun of nature that is callit the first movement; that is, quhen a man or beste is sudaynly stert, thair naturale inclinacioun gevis thame of thair complexioun to a brethe, and a sudayn hete of ire of vengeance quhilk efterwart stanchis efter that hete. Bot bataill taking cumis of lang forset and forethocht purpos of malice that is nocht naturale to man.[NOTE: passage in italics ends here] Item it is a thing reprovit of God and his lawis, and condamnyt. (Stevenson 1901: iv, c.110; present writer's italics)

The standard modern French edition of "L'Arbre des Batailles" is that of Ernest Nys in 1883; and the standard modern English translation that of G. W. Coopland in 1949 (Nys 1883; Coopland 1949). Although "L'Arbre" was translated many times into various romance languages, Hay's remained the only translation into English until Coopland almost 500 years later. Sir Gilbert Hay, as he informs us himself, completed his translation in the year 1456, at the castle of Roslin, near Edinburgh, at the command of William Sinclair, earl of Orkney and lord of Roslin. It is not known, I believe, what manuscript of Bonet's work Hay used, nor whether that manuscript still survives. Coopland pays generous tribute to Hay's spirited, if rather free, rendering, saying, 'No modern translator can hope to equal this in life and dignity' (Coopland 1949:11).

There are a number of points of interest to the legal historian in the passage from Hay. One is Hay's listing of various types of law: "Goddis law", "mannis law", "commoun lawe", "canoune lawe", "the lawe of nature" and "the law civile". It is worth noting that Coopland's translation of Bonet's original, following the original text more closely, is rather different here:

But before I name them I wish to show plainly how, according to divine law ("droit divin"), the law of nations ("droit des gens"), the law of decretals ("droit des decrets"), and civil law ("droit civil"), to give wager of battle and to receive it for the purpose of combat is a thing reproved, and is condemned by reason. (Coopland 1949: iv, c.111; original French from Nys 1883)

However, the focus of this article is on the second part of Hay's text, italicised above, which draws a contrast between 'forethocht felony', that is, acting 'of lang forset and forethocht purpos of malice', and 'a sudayn hete of ire of vengeance'. Had it not been for the "Dictionary of the Older Scottish Tongue", which I consulted when researching the terminology and classification of homicide in older Scots law, I should probably never have come across this highly significant passage, referred to there under "For(e)thocht".

A short excursus into the classification of homicide in Scots law in the later Middle Ages should help to highlight the significance of the passage.(1) The main distinction in Scots law (and, I believe, in English law also) was between killing or slaughter with forethocht felony, that is, with malice aforethought or premeditation, and slaughter in the heat of the moment, alias chaude-melle, sometimes referred to as slaughter 'on a suddenty'. The term 'murder' applied only to the first of these.(2) The distinction appears clearly from three entries in that earlier dictionary of the older Scottish tongue, Sir John Skene's "De Verborum Significatione" of 1597 (subtitled "The exposition of the termes and difficill wordes, conteined in the foure buikes of Regiam Majestatem, and uthers...") under Forthocht felony, Chaude-melle and Melletum:

FORTHOCHT felony, "praecogitata malitia", quhilk is don and committed wittinglie and willinglie, after deliberation and set purpose, and is different from "chaudmelle".

CHAUDE-MELLE, In latin "Rixa", an hoat suddaine tuilzie, or debaite, quhilk is opponed as contrar to forthoucht fellonie … vid. Melletum, vid. Forthoucht fellonie.

MELLETUM … Ane French word, "Melle", dissension, strife, debate, as we saye, that ane hes melled or tuilzied with ane uther. And in the actes of Parliament, and practique of this realme, Chaud-mella is ane faulte or trespasse, quhilk is committed be ane hoate suddaintie, and nocht of set purpose or "praecogitata malitia".

The first Act of Parliament to note the distinction was a statute of David II passed over two hundred years earlier, in 1369/70, which stated that no remission or pardon should be given for homicide until an inquest had determined whether the killing had been committed "per murthyr vel per praecogitatam maliciam", the word "vel" here clearly being intended conjunctively (APS: I, 509). Two years later a statute of Robert II of 1371/2 set out that when homicide had been committed an inquest should decide whether killing was "ex certo et deliberato proposito vel per forthouch-felony sive murthir vel ex calore iracundiae viz. chaudemellee". Here, confusingly, the first "vel" is conjunctive but the second disjunctive. The statute continues that if it was found to be forethocht felony or murder, sentence was to be carried out without delay; but if it was found to be chaude-melle the accused was to have all customary exceptions and defences. Full benefit of sanctuary was to be allowed in the latter case only (APS: I, 547-8).

Some Formularies show this legislation in practice. For example, a style in both "Formulary E" and the Bute manuscript is headed "Inquisitio si talis interfecit talem per forthought felony vel non" (Duncan 1976: no.14).(3) Two later statutes, now expressed in Scots rather than in Latin, use the concept of acting on a suddenty as a synonym for "chaude-melle": an Act of 1425 which concerns the breaking of the king's peace distinguishes between acts committed upon 'forthocht felony' and those committed 'throw suddande chaudemellay' (APS: II, 9); while an Act of 1469 complains of 'gret slachteris … baith of forthocht felony and of suddante'. Only the latter category was to have benefit of sanctuary (APS: II, 95-6).

Pitcairn's "Criminal Trials" provides a useful guide to the terms of art used in practice in prosecutions for homicide from the end of the fifteenth century, as evidenced by the following examples (Pitcairn 1833):

1493 'art and part of the forethought felony done … by way of Murder' (William Tayt) (Pitcairn, I, pt.1, 17*);
1497 'art and part of the Murther and Slauchter of ...' (Patrik McKowloche) (Pitcairn, I, pt.1, 99*);
1509 'Convicted of art and part of the cruel Slaughter … committed upon forethought felony' (Alexander Lecprevik) (Pitcairn, I, pt.1, 62*);
1512 'art and pairt of the Slauchtir and Murthure' (William Douglas of Drumlanrig) (Pitcairn, I, pt.1, 79*);
1530 Accused of 'Cruel slaughter … acquitted of forethought felony … Wherefore they were restored to the sanctuary of Torphichen' (Robert Manderstoune). (Pitcairn, I, pt.1, 151*)

By the middle of the sixteenth century the indictments become more formulaic, usually combining the elements of old feud, provision, set purpose and forethocht felony:

1539 'indict and accusit for art and pairt of the felloune and cruell Slauchter … apoun auld feid and forthocht felony … comitit the said Slauchtir upon provisioune and foirthocht fellony' (James Reid) (Pitcairn, I, pt.1, 220*);
1562 Convicted of 'the crewell and unmercyfull Slauchter … upone ald ffeid, sett purpois, provisione and foirthoicht fellonye' (William Fergusone) (Pitcairn, I, pt.1, 425*);
1581 Accused of slaughter 'upoune sett purpois, provision, auld feid and foirthocht fellonie'; defence claims that it was 'done on suddantie … and denyis foirthocht fellonie'. (William Bikartoune) (Pitcairn, I, pt.2, 98-99)

The passage from Hay's "Buke of the Law of Armys" is of interest in its use of these terms of art. Hay writes of 'forethocht felony', of 'lang forset and forethoucht purpos of malice', of 'a sudayn hete of ire of vengeance', and of being 'sudaynly stert'. But the greater value of the passage lies in its disclosure of the way of thinking which lay behind these legal distinctions. The division into slaughter by forethought felony and slaughter chaude-melle reflects a very real difference in the way men thought about these two types of killing. Killing by forethought felony was unnatural, against the law of nature. Killing chaude-melle, on the other hand, although clearly sinful, was the result of natural passion. The first deserved the description of 'murder', a term, then as now, reserved for the type of killing deemed most reprehensible by society. The second did not. One might compare the distinction in Scots law today between murder and culpable homicide, or murder and manslaughter in England. If, therefore, we describe killing in hot blood as 'murder' at this period, we are not only guilty of an anachronism, but are also in some danger of misunderstanding and misjudging the reaction of contemporaries.

With this in mind, it is worth revisiting two of the most famous killings in later medieval Scotland, almost invariably referred to by historians as 'murder', to see how they are described by contemporaries: the killing of John Comyn of Badenoch by Robert Bruce and others in the Church of the Greyfriars in Dumfries in February 1305-6; and the killing of William 8th earl of Douglas by James II and others in Stirling Castle in February 1451-2. Did these killings amount to murder in the eyes of contemporaries? The context of both these killings is well known and is taken for granted here.

Was Bruce's killing of Comyn premeditated? Early Scottish sources suggest that it was not. English sources, however, such as the Chronicle of Walter of Guisborough and Sir Thomas Gray's "Scalacronica", antagonistic towards Bruce, suggest that it was. The very earliest accounts are both English. The first, a newsletter written within weeks of the killing, gives a detailed account of Bruce's recent movements, but has only a glancing and neutral reference to the killing of John Comyn ("la mort le dit monsire Johan") (Stones 1970: no.34, 266-7). However, in the 'confession' of Bishop Lamberton recorded only a few months later in August 1306, Robert de Cottingham, an English royal clerk, uses the term "murdrum" to describe the killing of Comyn ("tam de murdro et interfectione quondam domini Johannis Comyn"), and refers to the 'premeditated iniquity' ("excogitata nequicia") of Robert Bruce (Stones 1970; no.35, 274-5). The considered view of modern historians appears to be that Bruce's killing of Comyn was not premeditated. This is the view taken by Geoffrey Barrow in his biography of Bruce: 'It is contrary to everything we know about Bruce's character that he should have called Comyn to the Greyfriars' church with the secret intention of killing him' (Barrow 1988: 146). The historian of the Comyns, Alan Young, is of the same mind: 'It is unlikely that the murder was premeditated' (Young 1997: 198). Archie Duncan too believes that there was no premeditation: 'It is surely clear that the murder was unpremeditated, but there must be a suspicion that Comyn, who had shown himself a violent man, was provocative' (Duncan 1997: 80n.). Edward I's biographer Michael Prestwich agrees: 'Comyn's death was not premeditated, but was the result of a quarrel over Bruce's plans' (Prestwich 1997: 505). Historians, I think, have sometimes found it difficult to explain why Bishop Wishart of Glasgow and Bishop Lamberton of St Andrews, among others, continued to give Bruce their full support apparently undeterred by the murder of Comyn, Wishart absolving Bruce from his sin shortly after the event, and Lamberton saying pontifical high mass at Bruce's inauguration as king later in 1306. The answer is clear. It was not murder.

It is worth noting at this point that the medieval church was capable of a far more advanced analysis of homicide than the rough distinction between forethought felony and chaude-melle under review. The Canon law, as set out in a chapter headed "De Homicidio Voluntario vel Casuali" in the "Decretals" had elaborated a theory of culpability of considerable sophistication, elucidated on the basis of actual examples, the immediate concern being whether a priest who had been in some way the cause of another's death could be permitted to continue to celebrate mass.(4) In the long run the Canon law analysis was to be very influential in the later classification of homicide in many European jurisdictions, including Scotland. But its impact on secular mores in the fourteenth and fifteenth centuries was limited.

The only detailed contemporary account of the killing of William, earl of Douglas, by King James II in February 1452, despite the king's special assurance and respite, is given in the "Auchinleck Chronicle"'s distinctly breathless prose:

"That samyn zer Erll William of Douglas wes slane in the castell of striuling be king James the second that had the fyre mark in his face … and this samyn Monday [Douglas] passit to the castell and spak with the king that tuke richt wele with him be apperans and callit him on the morne to the dynere and to the supper and he come and dynit and sowpit and thai said thair was a band betuix the said erll of Douglas and the erll of Ross and the erll of Crawford and efter supper at sevyne houris the king then beand in the Inner chalmer and the said erll he chargit him to breke the forsaid band he said he mycht nocht nor wald nocht/ Than the king said fals tratour sen yow wil nocht I sall/ and stert sodanely till him with ane knyf and straik him at the colere and down in the body and thai sayd that Patrick Gray straik him nixt the king with ane poll ax on the hed and strak out his braines and syne the gentills that war with the king gaf thaim likane a straik or twa with knyffis..." (5) (McGladdery 1990: 165)

Was this killing done with forethocht felony? Most modern historians, although referring to the deed as 'murder', have concluded that it was not. Christine McGladdery writes of 'the hot-blooded stabbing of the earl by the king', and concludes that 'the murder of Douglas is unlikely to have been premeditated' (McGladdery 1990: 69). Annie I. Dunlop takes the same view in her biography of Bishop Kennedy: 'No doubt James was carried away by a sudden outburst of unbridled fury' (Dunlop 1950: 133). In fact, the language of the "Auchinleck Chronicle" is that of suddenty or chaud-melle. The "Chronicle" is clear that the slaughter of Douglas was not premeditated, using the words 'the king …stert sodanely till him with ane knyf'. This statement should be compared with the passage from Sir Gilbert Hay already given, written less than five years after the killing of Douglas, which contrasts killing by forthocht felony with killing 'quhen a man or beste is sudaynly sterte' and experiences 'a sudayn hete of ire of vengeance'.

Douglas's killing, therefore, was not murder. It was right, however, that the king should make amends, so far as possible, to the kindred of the man he had slain. He should not profit from his misdeed. This is why, I would suggest, King James entered into a bond of manrent with William Douglas's brother and successor, James 9th earl of Douglas, in January 1453, and personally petitioned the Pope to grant the necessary dispensation to allow the new earl to marry William's widow, the heiress Margaret of Galloway, and thereby acquire control over her lands (Nicholson 1974: 365; McGladdery 1990: 82). This behaviour has surprised historians. Ranald Nicholson comments, 'Even more astonishingly James bound himself to aid the earl to consolidate his territorial power by furthering a marriage betwixt Earl James and the latter's sister-in-law'; while McGladdery follows Dunlop in considering that James's promotion of the marriage is proof of his impotence and the insecurity of his position (Nicholson 1974: 365; McGladdery 1990: 83; Dunlop 1950: 43). On the contrary, the king's promotion of the marriage should be seen above all as a fitting act of expiation, a just and necessary assythment for the slaughter of Earl William in hot blood, done to prevent further feud.(6)

What of the terms of art used in the passage from Hay which conform so closely to those used in Scots law? What terms do they translate or mirror in the original French of Honoré Bonet, composed some seventy years before? Might the original and the translation, taken together, throw some light on the comparative legal history of homicide? The answer to these questions came as a surprise. There is no parallel passage in Honoré Bonet.(7) The entire passage given in italics at the beginning of this paper is an interpolation. Why?

One can only speculate. Hay's patron, as he tells us, was that great survivor of Scottish fifteenth century politics, William Sinclair, earl of Orkney (later earl of Caithness) and lord of Roslin. The interpolated passage which echoes so closely the words of the "Auchinleck Chronicle" was written within five years of the slaughter of the earl of Douglas by the king, and must, at the very least, have stirred memories of that death in Hay's patron. Is there any reason to suppose that William Sinclair, earl of Orkney, had a particular interest in the fate of the Douglases? Every reason, it transpires. His relationship to the Douglas kin could not have been closer: his mother was a Black Douglas; his first wife was a Black Douglas; and his sister was married to a Black Douglas. Through his first wife, Elizabeth, the earl of Orkney was the uncle of William 6th earl of Douglas and of David his brother, who were both executed judicially after 'the Black Dinner' at Edinburgh Castle in 1440. He was uncle also, through his sister Beatrice, of William 8th earl of Douglas, killed by King James at Stirling.(8) The earl of Orkney was also, like most of the higher nobility, a close cousin of the king, being a great grandson of Robert II. He is likely to have reflected more than most on the events of that February day in 1452 when the king stert sodaynly towards the earl of Douglas with a knife. Is it not likely that William earl of Orkney may have had a hand in this interpolation?


Notes
1. This section of the paper draws on my 'Forethocht Felony and Malice Aforethought' (Sellar 1991).
2. The term 'murder' had earlier been restricted to killing by night or secret killing.
3. Compare Bute Manuscript no.68 (Cooper 1946).
4. X 5.12. Liber extra (Decretales Gregorii IX), in Corpus Iuris Canonici.
5. The "Auchinleck Chronicle" is transcribed from the Asloan MS. (NLS MS. Acc. 4233) in McGladdery 1990: Appendix 2.
6. It does not appear that this precedent for marrying a brother's widow was cited in the case of Henry VIII and Catherine of Aragon.
7. There is no parallel in Nys's standard edition, nor, I suspect, in any manuscript of the original. I am assured by Sally Mapstone, who has made a close study of Hay's work, that this is far from the only occasion on which Hay departs from Bonet's original text.
8. For these relationships, which are uncontroversial, see Balfour Paul, "Scots Peerage".

Information about Document 838

Was it murder? John Comyn of Badenoch and William, Earl of Douglas