Mary Queen of Scots

by Retha Warnicke

  Over a month had elapsed from the beginning of Lennox’s correspondence with Mary, all of which was in Scots, until her re-entry into public life on the 23rd. Five days later she met with her privy council. Noting that Lennox had responded to their request for information about the king’s killers, the queen and her council, with Huntly, Argyll, Bothwell, Lethington, but not Balfour in attendance, decided that the accused earl and the other suspects, who were not named, should be tried for murder. Since he knew that the anonymous placards could not be introduced into a criminal trial and that Lennox had obtained no other evidence against him, Bothwell welcomed the opportunity to clear his name. As the law stipulated a 15-day notice, the council set the trial for 12 April as a private rather than a crown process in the justiciary court where an assize would determine Bothwell’s fate. Ironically, the parliament Mary had originally summoned to try Henry’s killers met two days later.

  The crown had jurisdiction over murder, arson, rape, and theft, as noted in the above discussion of the Jedburgh justice ayre. Because public and private justice overlapped in Scotland, however, it was actually the victim’s paternal relatives, the agnatic group, who usually initiated proceedings against the accused. In fact, the normal procedure until the seventeenth century was for the injured party or his kin to advance the prosecution by means of criminal letters passed under the signet of the court of session.22

  Lennox had gone directly, however, to Mary and through her to the privy councilors, whose advice she solicited for the appropriate measures to adopt when a nobleman made a criminal charge against another nobleman. Although he initially named eight men, the council had, in fact, by leaving seven of the accused nameless, reduced Lennox’s challenge to one person, another earl, Bothwell. The council’s usual method was to mediate noble disputes, promoting measures for keeping the peace rather than ordering a trial for one of the aggrieved parties. Even in 1589 during her son’s reign, for example, the council issued an order to suppress the quarrel between Francis Stewart, fifth earl of Bothwell, a nephew of the Bothwell the queen married, and Alexander, sixth Lord Home, even though in the course of their on-going bloodfeud Bothwell had by then killed three members of the Home family. Usually, to prosecute a powerful earl, royal officials had either to obtain his permission for the trial or to build a military and political alliance against him that could successfully bring him to justice. Only in the late sixteenth century was the crown’s advocate transformed from an official acting mainly in civil cases on behalf of the monarch into a public prosecutor.

  In preparing for the trial, Lennox started toward the capital with 3,000 armed retainers, following the usual noble practice of surrounding the courts of justice with armed allies. On the 11th realizing he could not collect a force larger than or even comparable to Bothwell’s, he unsuccessfully pleaded for the postponement of the trial that on 26 February he had pressured Mary to expedite. He then abruptly left the realm. Various writers have claimed she instructed him to bring only six attendants, but the council order does not confirm this charge. The confusion probably arose from a law that prohibited the accused from having more than four attendants and the accuser more than six at the trial, a restriction that did not apply to the troops milling outside the courtroom. In obtaining retainers for the trial, Bothwell, the hereditary sheriff of Edinburgh, possessed a distinct advantage over Lennox, who had only recently returned to Scotland after a 20-year absence to resume control of his estates that lay near Glasgow. For legal proceedings as well as for military confrontations, the nobleman with the lesser force normally retired from the conflict.

  At 6:00 a.m. a few hours before the trial was scheduled to begin, Drury’s messenger, John Selby the younger, provost-martial of Berwick, arrived to petition Mary on behalf of Lennox to delay the proceedings. At first Bothwell denied Selby permission to see the still sleeping queen. When Selby returned about 9:00 a.m., Bothwell and Lethington took his message inside Holyrood and about one-half hour later, replied, surely mendaciously, that she had not yet arisen and advised him to return after the trial.

  Bothwell was clearly interested in expediting the legal process. At 12:00 p.m. only he was tried in the justiciary court. As the other suspects, left unidentified by the privy council, were commoners, their status would have prevented them from being included in a nobleman’s trial in any case. Argyll, the justice general, chose to preside despite usually relinquishing this duty to his justice depute. Although the trial lasted until 7:00 p.m., the assize’s verdict was a foregone conclusion mainly because the accuser Lennox failed to appear with any evidence. The assize could only find the defendant guilty if the accused confessed to the crime or if eyewitness testimony was introduced. Unlike English law, Scottish law did not permit the admission of circumstantial evidence on the major charge. While the assize may have felt some concern about the number of Bothwell’s retainers in Edinburgh, it unanimously acquitted him for lack of proof and not because of threats or because of special friendship. His armed troops could have, however, frightened away witnesses who might otherwise have volunteered information against him. Following the verdict, Bothwell posted his arms on the doors of the Tolbooth, St Giles’ Church, and other places, offering personal combat to anyone challenging the decision.

  After learning of Henry’s death, Elizabeth and her councilors advised Mary to see that justice was done, but they lacked an appreciation of crown limitations. Scottish monarchs routinely took advice from their privy councilors on matters such as this, attempting to govern by consensus. Untrained in the law, they lacked expertise in the minutiae of legal issues.23 Although, according to Thomas Craig, Mary commented wisely on questions of equity and justice, she was not conversant on the intricacies of criminal procedures as were her councilors, particularly Bellenden, the justice clerk.

  Lennox might well have had more success in bringing his son’s murderers to justice had he initially accused only the commoners in the hope, as did later occur, that during their trials they might reveal damaging information against Bothwell. The proof Lennox offered the council, rumors repeated on anonymous placards some of which slandered the queen, was totally inadequate. They did not constitute compelling evidence for Mary to attempt to remove Bothwell from the privy council, which had other compromised members, among them Balfour, her clerk register, and Argyll, her justice general. Even if she had not confirmed Argyll’s life appointment to his hereditary position in 1558, she would have found it difficult to replace this powerful earl, who had access to great resources and who in peerage rank came after only Châtelherault and Huntly.

  If the murder verdict against Bothwell that Lennox sought had actually been achieved, Mary would have been unable to enforce it unless her father-in-law had successfully raised more troops than his opponent. Lacking a royal army, she depended on noblemen’s lieges for assistance.24 Most of the earls who could have aided her against Bothwell were either compromised or accessories to Henry’s death. Morton, who was involved in Riccio’s assassination, was executed for Henry’s murder in 1581, and Moray and Châtelherault, who surely would not have been interested in assisting the Lennox–Stewarts, were on the continent. In short, there were hardly any powerful noblemen she could summon, as she had, for example, when she called upon Huntly and Bothwell to aid her against the Chaseabout raiders. Surely, Lennox left Scotland because he had exhausted the reservoir of military support available for revenging the death of his son who had made so many enemies in less than two years as king.

  Two days after Bothwell’s acquittal, a parliament that lasted five days was held. In the procession Argyll carried the crown, Bothwell the scepter, the earl of Crawford, the sword. Mary assented to statutes annulling all acts contrary to the Protestant faith and took the Kirk under her special protection, publicly confirming she would not attempt to legalize Catholicism. The fallout from Henry’s death had ended that goal. Other statutes returned his family estates to Cardell, confirmed Moray’s and Morton’s restoration, and ratified grants
to them, as well as to Huntly, Bothwell, Lord Robert, and Lethington.

  On the 19th after parliament was adjourned, Bothwell decided to strike for royal power. Having invited the parliamentary lords and bishops to a supper at Ainslie’s Tavern in the Canongate, he asked them to sign a band declaring his innocence in the king’s murder and, if the queen would humble herself enough to marry him, one of her subjects, promising to prevent any disruption of that union. Although extant lists vary, approximately 24 of the astonished men endorsed it: among them Archbishop Hamilton, Leslie, the earls of Argyll, Cassilis, Huntly, Morton, Sutherland, and Crawford, and Lords Seton, Fleming, and Herries. Only Eglinton escaped the tavern without subscribing. Many of the endorsers later renounced their action and signed bands to remove her from Bothwell’s control. James Melville even recalled that Herries advised her not to marry Bothwell. It was not unprecedented for lords to agree to a proposal when confronted by someone with a strategic advantage and then to change their minds at a convenient opportunity. In France in 1558, for example, Moray approved Mary’s marriage contract with Francis, surely aware that it had the potential for making Scotland a permanent French protectorate, but in 1559 joined the Congregation and challenged her mother’s authority partly because of his hostility to French rule in Scotland. In 1567 some individuals might have agreed to the band because they believed it would never be implemented. Bothwell was still married to Huntly’s sister and Mary would surely deem him an unworthy suitor.

  News of the band having reached Lennox en route to England, he wrote his wife on 23 April that Bothwell would seize Mary. Why no one informed Mary of this possibility can best be explained by James Melville’s later admission that they believed she would confront Bothwell with their accusation and were afraid of his reaction. This expectation seems reasonable, since Mary questioned Lord Robert about his alleged claim that it was unsafe for Henry to remain at Kirk o’Field.

  On the day the Ainslie band would be signed, Mary retreated to Seton for a short rest. Then on the 21st she left for Stirling to visit James with an escort of about 30 individuals, including Huntly, Lethington, James Melville, and her household servants. When departing on short trips, she often moved with a small train, as in February 1564 when she traveled to Dunbar with a company of 20. While at Stirling she wrote to Bishop Laureo, expressing concerns about Elizabeth’s mistreatment of Scottish travelers, promising on returning to Edinburgh to send him an express messenger, and requesting he inform Pius V that she would do nothing inconsistent with her devout purpose to die in the Catholic faith. These were not the sentiments of a woman who was planning to marry her abductor in a Protestant wedding. Unbeknownst to Mary, the bishop had abandoned his mission after conferring with Hay and Chisholm about Henry’s murder and had left Paris. On 23 April the day before her abduction, he was at Lyons and in May reached Mondovi, where in June he received her letter, written in French by her own hand. Arriving with her letter was a message dated 4 May from du Croc, warning that she would marry Bothwell. She never, of course, sent Laureo the promised express messenger.

  On 23 April Mary departed for Edinburgh but becoming ill, decided to rest at a private home before proceeding to Linlithgow. A porphryia attack could last for months, like the chronic illness she had suffered since October. The next day the 24th, as she reached “Foulbriggis,” which lies just west of Edinburgh between two bridges, one crossing the Almond and the other Gogar Burn, Bothwell approached her with 800 armed horsemen.25 Warning it was dangerous to go to Edinburgh, he seized her bridle and escorted her for safe keeping to Dunbar, one of the best examples of artillery fortifications in Scotland. As he possessed this large force, she surely discouraged her attendants from resisting; a strong cultural convention, moreover, held that it was dishonorable for a gentlewoman to fight back on a personal, physical level in public.

  Four of the deponents at Paris in 1575, who were asked for information to support Mary’s petition for a divorce from Bothwell, swore that they were at Edinburgh when James Borthwick, her messenger, arrived with her plea for help. The burgh’s inhabitants quickly collected their armor and rushed out of their portes, but all they could accomplish was firing their cannon twice at the riders as they sped by on their way to Dunbar.26 Bothwell then replaced her ladies with one attendant, his sister Janet Hepburn, the widow of Mary’s half-brother, Lord John, who died in late 1563.

  Some writers have criticized Mary for not shouting for assistance on the journey to Dunbar, citing this failure as evidence of her desire to be abducted. That she did not seek aid depends on the evidence of chroniclers, who did not witness the abduction, although they were probably correct, but for the wrong reason. Armed horsemen surrounded her, shielding her from contact with bystanders as she rode toward Dunbar. Even in the unlikely event that some observers could have heard her cries over the pounding of horses’ hooves, they would have been unable to organize a rescue party in time. Others in her train, like James Melville, who later recalled that Bothwell boasted he would marry his royal captive whether she would or would not have him, would surely have summoned aid if they had not feared the reprisals of this powerful earl who could rally thousands of lieges for support.

  Bothwell botched the arrangements for murdering the king with gunpowder, which required much planning and coordination, but he pulled off the abduction without a hitch. James Melville also recalled that after the still married earl seized Mary, he compelled her to become his bedfellow. In his old age, Melville might not remember all these events clearly, but the sexual violation of his queen would surely not be one he would forget. Probably, Bothwell raped her and threatened to use her sexually as his wife until she consented to marry him. Leslie, who was not present at the abduction, confirmed the earl’s use of force against her.

  Even so Bothwell attempted to soften news about the violence by pretending that governmental business continued as usual perhaps to forestall rescue attempts. Clearly, he directed his captive’s various activities; between 26 April and 1 May he provided several charters for her to sign. Meanwhile, his adherents, among them Captain William Blackader, who was to be arrested and executed in June for his share in Henry’s murder, spread rumors eagerly repeated by her enemies that she agreed to the abduction to invent an excuse for marrying Bothwell.

  James Melville’s view was different: he claimed she had to marry Bothwell because he forced her to lie with him and ravished her. Shamed by the emotional and physical assault, she reacted like many other early modern victims who believed their ravishment polluted them: she decided to marry the rapist and to suppress all references to the sexual violation. Unwilling to dishonor her family by revealing the rape and eliciting charges that she was immensely immodest or that she deserved to be attacked because she had not lived virtuously enough, she chose to act politically foolish and to brave religious censure. As she must have known, many people would disbelieve a woman who claimed she was raped; church courts sometimes punished both the accuser and the attacker, although the rapist’s penalty was usually more severe. Rape is still the most under-reported crime, but it was even more under-reported in her society because of the value placed on female chastity. In characterizing male ideas about women’s virginity as “ridiculous,” Montaigne referred disparagingly to a contemporary who argued that ladies should embrace death rather than “submit to the outrage of their chastity.”27

  Mary may not have discussed the assault with her confessor, Roche Mamerot, a doctor in theology and a French Dominican, who entered her household about 1563. After learning she intended to wed Bothwell, the disappointed cleric left Scotland. To de Silva in London he explained that two or three Catholic priests reassured her that she could wed Bothwell because he and his wife were too closely related. Mamerot also claimed that Mary viewed her union with him as a way of settling religion in Scotland. Had he remained at her court, Mamerot would have witnessed the queen’s great despair at becoming Bothwell’s wife and would have been called upon once again to comfort a woman w
ishing herself dead. When de Silva asked if Mary had colluded in her husband’s murder, Mamerot swore that she was a devout Catholic and knew nothing about his death. Until the question of her marriage with Bothwell arose, he maintained that he had never seen a woman act more courageously or virtuously.

  7: SEEKING REFUGE, 1567–69

  On 6 May as a public sign that Mary was under his control, Bothwell led her by her horse’s bridle into Edinburgh’s almost impregnable castle, ensuring that she could neither escape nor be rescued before publicly repeating her promise to wed him. It had been 12 days since he took her to Dunbar and raped her, forcing her to agree to marry him. For security reasons two days after arriving at Edinburgh, he transferred the castle from the control of Mary’s appointee, Skirling, to Balfour, whom Bothwell gravely misjudged since the new captain would soon betray him.

  That Bothwell was in the awkward position of planning his royal wedding while his wife was ending their marriage supports the argument that his abduction of the queen was opportunistic. On 26 April two days after Mary’s capture, Lady Bothwell petitioned Edinburgh’s commissary court for a divorce on the grounds that her husband committed adultery at Haddington with her sewing-maid, Bessie Crawford, and on 3 May the suit was granted. In contrast to the Catholic Church’s policy of allowing couples to remarry only if the union was deemed invalid from its inception, the Kirk usually permitted divorce with the possibility of remarriage in the presence of adultery or desertion.

  Although aware that Bothwell was planning a Protestant wedding, Mary asked Archbishop Hamilton on 27 April to inquire into the validity of the earl’s marriage. On 7 May by virtue of his authority as papal legate a latere, Hamilton nullified Bothwell’s alliance with Jean Gordon on the grounds that they were related in the double fourth degree of consanguinity, thus ignoring his dispensation of that impediment in 1566. Technically, however, his decision was justifiable. The earlier dispensation was a dead letter, as it had not been published and executed according to its terms because the Bothwells were wed in a Protestant rather than a Catholic ceremony.