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The Political Context of the Battle of Glen Fruin

By Peter Lawrie, ©2003

2003 marked the the 400th Anniversary of Proscription of the MacGregor name. Rather than take an inverted pride that our ancestors were ‘bonnie fechters’ who were, somehow, special and unique, it is important to understand the context in which proscription came about.

Martin MacGregor, in his 1989 thesis, concluded that Clan Campbell and Clan Gregor had expanded, together, in alliance, into northern and western Perthshire after the forfeiture of the Dukes of Albany in the early 15th century. Successive Campbells of Glen Orchy in particular had benefited from Clan Gregor military power. To put matters simply, Clan Gregor lineages occupied and exploited lands to which, subsequently, the Campbell chiefs, as their feudal superiors found ways of obtaining legal title. Highland clanship was focused on the control of land and its resources. The chief, as head of his kindred collected and controlled the distribution of surpluses. In a decentralised state real power was in the hands of the territorial lords. The legal nicety of who had the charter in his chest appeared to be of small consequence in the 15th century, but became desperately important later. The six-day entertainment of James IV at Inchcalloun in 1506 demonstrated the real territorial power of the Clan Gregor chief at that time. In 1550 Grey Colin Campbell, Cailean Liath, became chief of the Glen Orchy lineage, and in 1583 he was succeeded by his “clever, scheming unscrupulous and cruel” son, Donnchadh Dubh a’ Churraic, Black Duncan of the Cowl, who ruled until 1631. Their philosophy is captured in the 16th century words of advice in the Black Book of Taymouth “Conques or keip thingis conquest”. An unsubstantiated, traditional account in Amelia, states that MacGregor of Glen Strae lost half of his 700 men in the Scots army at the Battle of Pinkie against the English in 1547. Around the time of Grey Colin’s succession, John of Glen Strae was mysteriously killed of ‘the hurt of an arrow’ in Glen Lyon, leaving the infant brother, Gregor Roy, as chief. Grey Colin moved to subordinate and reduce the client kindreds on his lands of which the most powerful was the weakened Clan Gregor. This led to a vicious regional war which lasted until sometime after Gregor Roy’s execution at Balloch in 1570. The conflict became enmeshed in the wider Civil wars in Scotland that came out of the incompetence of Queen Mary in the mid 1560s, and then the power struggle over the possession of her infant son in 1571. At the end of this period, in a nutshell, Campbell power had been greatly enhanced and Clan Gregor were defeated and leaderless. In the theory of clanship, as a fractured, landless kindred, Clan Gregor should have disappeared, its members finding new lords, chiefs and probably names. An irruption in 1589 led by the young chief, Alasdair of Glen Strae, over the murder of Drummondernoch saw new persecution, enthusiastically led by Black Duncan among others. There was wide-scale reset and protection of Clan Gregor, particularly by Campbell of Calder who had the ear of the King and obtained forgiveness for Alasdair in 1592. However, in 1601, Gillespic Greumach, Archibald the Grim, Earl of Argyll, was awarded full powers of Lieutenancy over the Clan Gregor, ostensibly to bring the Clan to ‘gude rewle and the Kingis pece’. In fact. Argyll as hereditary Justice General had his own feuds to prosecute and in the context of intense royal disapproval of violence it was far too dangerous for him, a member of the Privy Council, to be implicated in feuding. He had been disciplined by the King for quarrelling with the Duke of Lennox and along with personal animosity he looked with jealous eyes on the rich Lennox lands, including those of Lennox’s vassal Colquhoun of Luss. He also had ambitions towards the lands of Clann Iain Mhòr (Clan Donald South). His manipulation of his lieutenancy over Clan Gregor was aimed at both these prizes. Several MacGregor-led ‘herships’ of the Lennox brought much booty that was surreptitiously reset among Campbell lairds while at the same time damaging the revenues of the Duke. Colquhoun’s attempted armed retaliation, with his purchased royal license led to the battle of Glen Fruin which will be looked at in more detail in later Newsletters. King James, on the point of departure for his long-awaited Crown of England ordered Argyll to make a most exemplary punishment of the ‘rebellious tribe of lymmars’, for which, in 1607, he was rewarded with title to the forfeited lands of Kintyre.  

What of the wider Scottish context? Professor Keith Brown has kindly given me permission to quote from his book Bloodfeud in Scotland 1573-1625, published by John Donald in 1986. Brown identified 365 bloodfeuds in Scotland during the reign of James VI, only 16% of which were distinctly Highland. His book examines the actions taken, particularly in the 1590s to tackle the problem. Since the death of James V in 1542 until James began his personal rule in 1587, Scotland had a succession of minorities, regencies and incompetent rule. The Scottish state had always been decentralised, relying on local lordship. The art of kingship was in managing the lords. Despite a completely feudal land system, lordship operated in a kin-based society. In the late 16th century, even in the environs of Edinburgh, bonds of kinship and allegiance to lords were of vital importance. Honour and pride ranked high and, when slighted, this easily led to feud. James VI turned feuding Lowland and Border lords into a noblesse d’epee to serve the state, but in the Highlands, while the Campbells, Gordons and Mackenzies understood and benefited hugely from the new order, language and religious divisions as much as the machinations of the kindreds perpetuated a feuding society. It is fascinating to read of the concern for private rights, the dangers of concealed weapons, and the rights of the ordinary citizen to legal protection from the powerful. It is also noteworthy how the process augmented the power of lawyers and, in a particular parallel to Clan Gregor troubles at the hands of the Campbells, how the MacKenzie chief exploited the law in Edinburgh in his acquisition of the land of the Glen Garry MacDonalds.

>Sixteenth century governments were not interventionist in the manner of modern governments, and even in more centralised states than Scotland the greater part of governing was a local concern. Law itself was rarely innovative, and the interests of men like Skene and Balfour in editing old laws reflected ‘a continual turning back' in search of an authority derived from antiquity. Yet earlier in the Middle Ages attempts had been made to limit the effects of the bloodfeud, and those concerned about it could not simply wait for it to disappear. There was no inevitable decline of the bloodfeud in early modern society. Throughout the 1590s much of the debate on law and order within Scotland had concerned the question of how the Crown could satisfy those critics who were urging the King to enforce civil peace, and at the same time avoid alarming a very widespread community of interests which believed that the state's freedom to act was limited by private rights, privileges and traditions. The legislation of the Jacobean period responded to that problem with a programme - a term which is only meaningful in the unconscious sense - which did innovate, and did increase the degree to which the Crown interfered in private rights, but its philosophy was a conservative one, and in practice it made compromises in order to get the job done. Social peace, not state building, inspired it. The framework on which a more effective means of ending feuds was built already existed in private arbitration. When in 1578 the politically sensitive Gordon-Forbes feud was brought to the attention of parliament, it was agreed to appoint a commission of eight arbitrators to negotiate the issues between the two families. Private arbitration remained the basic principle upon which peace was founded, but the Crown was granted the authority to pressurise men into negotiations, and the authority to persuade them to compromise before their right to private arbitration was superseded by the Crown's responsibility to maintain the peace, that is by imposing a settlement. It was this ad hoc arrangement, approved by noble-dominated parliaments during the royal minority, which was later to form the basis of more comprehensive legislation.

In 1582 the Lennox-Arran Privy Council made a serious attempt to tackle the law and order issue. Justiciary courts were to be held throughout the Kingdom, and attention was drawn to feuding in the west of Scotland, where Lennox and Arran had most of their own lands. Widespread disorder was blamed on ‘sindre deidlie feidis, grudgeis and displeasures standing betuix sindre gret personis, thair freindis and partakers, throw bloodsheid and uther inconvenientis happinit amangis thame'. The participants in eight separate feuds were, therefore, ordered to assure one another before a certain date. This initiative was sunk by the Ruthven Raid a few weeks later, but at a convention in February 1583 the new regime persuaded a large number of the nobility to “assure eache one others, to be unhurt, unharmed, molested, persued, or in anie wise invaded, ather for old feed or new, otherwise than by ordinar course of law and justice; nather saIl we, nor anie that we may lett, make provocatioun of trouble, displeasure, or tumult, in word, deid or countenance ...” It was agreed that within forty days they would submit their feuds to the King who, with the advice of the Privy Council, would appoint arbitrators for them. Once again nothing came of this measure, and its aims may have been more political than social, but it did contain a voluntary surrender to the Crown of the right to arbitrate.

Throughout the 1580s feuding increased, and the King's naively idealistic attempt in 1587 to reverse this trend was a complete failure. A discussion within the government in the spring of that year did raise the possibility of enforcing a royal decreet ‘gif parteis having discension not eslie to be reconcelit will not subject thame selfis and kynnisfolk commandit to obey the chargeis of tua newtrall persones', but this was far too extreme. What did emerge was a grand banquet of the nobility at which they renounced their feuds in a spirit of goodwill, festivity and drunkenness: ‘Upon the xv day of Mai, the King maid the banchet to all his nobiletie, at ewin in Halyroudhouse, quhair the King maid thame, efter drinking of many scolis ane to ane uther, and made thame efter supper, quho utherwayis had beine at great fead, tak twa and twa be handis, and pas from Halyroudhouse to the merket croce of Edinburgh, quhair the provost and baillies had prepaired ane table and desert for his Majestie, at the quhilk theare was great mirthe and joy, with sik ane great number of pepill as the lyke had not beine seine befoir.’ The sentiments were the right ones for celebrating peace, but they had not been preceded by the hard bargaining to give them more than a superficial meaning. Two months later, in July, parliament passed an ‘Act for Universal Concord Among the King's Lieges' which was equally lacking in substance. Until the political environment was more stable, there was really nothing that could he done and it was a despairing Privy Council which wrote in 1591 of the ‘multitude of deidlie feidis' in which men ‘tak their privat revenge and advantage of utheris, disdaining to seik remeid be the ordinair forme of law and justice, without fear God or reverance of his authoritie'.

By 1595, with both Bothwell and Huntly defeated, the King was more confident of his authority, and more realistic than he had been in 1587. A convention of the nobility meeting in November recognised the unacceptable level feuding had reached, and allowed the King to mediate the more important ones, and to imprison those who refused to cooperate Lesser feuds were to be settled by sheriffs working alongside local barons and presbyteries. This act was essentially an emergency measure, being ‘provided upon the resisting of foreign enemies’, and as such it had limited implications. The Privy Council did summon the principals of seven feuds to assure one another and submit to arbitration, but the order was largely ignored, except for the signing of a few assurances. In May 1598 it was observed that ‘almost all feuds in Scotland are renewed so dangerously as this country was not under such appearance of trouble these 20 years'. So bad had the situation become, and so frustrated were royal officials with the King’s erratic attention to the problem, that some were said to have threatened to resign. In response to this the nobility were informed that feuding would be discussed at a convention of the estates planned for June, and the King plunged himself into a bout of work in preparation for it. The convention met on 29 June 1598 in Holyroodhouse, the King having to mediate between some noblemen who threatened to obstruct the legislation in order to protect their particular interests. Bureaucracy and lordship were fused in kingship, while noblemen were faced with reconciling their private loyalties with their public responsibilities.

The ‘Act Anent Removing and Extinguishing of Deidlie Feuds’ decreed that parties presently at feud were to be charged to submit to arbitration. The arbitrators would be named by the parties and had thirty days in which to reach agreement, or they could elect one of their number as oversman, granting to him the power to draw up a binding settlement. If neither a compromise nor an oversman could be agreed on, the committee had to set out in writing their points of disagreement which were to be submitted to the King who at this point became oversman himself. If the arbitrators failed to make this submission to the King, abandoned the proceedings, or allowed them to drag on beyond the time permitted, they were each to be fined £1,000. Once the business was in the King’s hands he, or Privy Councillors or judges appointed by him, would deliver a decreet arbitral against which there was no appeal, and which would be registered by the Crown with the status of an act of the Privy Council. The act was thus very conservative in substance, adopting long established forms and principles. The only difference it made was in insisting on a mandatory submission of the feud to arbitration, and in allowing that process a finite period in which to work before the Crown imposed a solution of its own.

Feud was divided into three categories by the act: where there had been slaughter, where there had been slaughter on both sides, and where there had been slaughter on only one side. In the first case the act was to be implemented in full in the hope that it could prevent an escalation. In the second where private revenge had already introduced the blood-justice of the feud, private assythment was to be agreed by both parties rather than each prosecuting the other in court. In effect this meant that the great majority of existing feuds were being left in private hands. Only where a killing had taken place on one side, and vengeance had not yet taken its course, did the Crown reserve to itself the right to intervene, as ‘... the pairtie grevit can not refuis in resoun to submit in maner foirsaid all querell he can beir to ony persoun Innocent. Justice being maid patent to him aganis the giltie.’ In this case justice was to be provided by the law, not by kindreds or lords. When punishment was meted out, the quarrel was to cease. The King’s right to pursue in his own action was reserved should the offended party decide not to pursue, and where a private settlement was reached it could be set aside should new evidence appear. Emphasis was laid on the offended party not seeking revenge from innocent kinsmen, and on kinsmen not protecting the guilty in an effort to make slaughter a crime isolated from the responsibilities of the kindred to either the victim or the criminal. While there was, therefore, some increase in the importance of the third party, the Crown, in dealing with cases of slaughter, the main emphasis of the act was still on private arbitration and privately initiated prosecutions.

The act had some success between 1598 and 1603. The prospects of a share in the rich inheritance of James’s English throne for those favoured by the King, resulted in many of the more significant noble feuds being either settled or assured by 1603. Without serious noble opposition the King felt more confident of extending royal powers over the settlement process. Yet it was only the offensive aspects of kin responsibilities which were being attacked, not those which contributed to keeping the peace. Essentially the King was fulfilling his responsibilities as a peacemaker, a traditional role, in a society which had recognised the need to allow him greater powers in order to achieve a level of peace demanded by a higher degree of expectancy, and had been shaken by the long years of violence and instability it had had to endure. This conservatism is even more apparent in the enforcement of the feud legislation. After 1598 the Privy Council did make a more systematic attempt to deal with feuding, and the instances of assurances being renewed suggest that records were being kept of the progress of the peacemaking. That feuding was driven from Lowland Scotland by the end of the King’s reign was not simply due to the acts of 1598 and 1604, but to a whole range of legislation associated with creating a more peaceful society. The Crown’s growing ability to ensure that settlements were made and kept was what gave the arbitrated peace a permanence which had formerly been impossible.

In a kingdom like Scotland where the Crown could not afford to pay for a standing army, it was necessary to have an armed population. Arms were also a symbol of status, symbolising the authority and honour of the wearer. It was expected therefore, that men would own and wear arms appropriate to their status, and that they would be able to play their part in the kingdom’s defence. In spite of the survival of a military ethos, however, the high cost of arms caused quite a degree of resistance to meeting the minimum requirements made by the Crown on individuals. Wappinschaws were held throughout the country in order that sheriffs could inspect the level or armed preparedness in their localities, but these were unpopular. In 1574 the Privy Council noted that many men were turning up with weapons borrowed from neighbours, and they were given eight months in which to satisfactorily equip themselves. Ten years later little had changed and in 1596 in the midst of the King’s preparations for resisting Spanish invasions and enforcing his claim to the English Crown, attendance was still low. A ‘sluggishness and cairlessness’ was in evidence, caused by ‘the not exercise of armour this lang tyme begune’. In 1599 the wappinschaws were simply abandoned through lack of public interest.

This slackness in attitudes to weaponry is worth remembering when discussing what was, in spite of it, an armed society. Yet the Crown’s concern that men should the requisite weaponry was matched by a desire to see those weapons used in a controlled manner. Above all there were worries about the dangers of handguns, a favourite weapon of those engaged in feuds. Gun control, the King wrote in Basilikon Doron, was one means of securing the abolition of feuds. As early as 1567 draconian legislation had been passed by the first parliament of the reign, making amputation of the right hand the punishment for firing, or even wearing a pistol without authorisation. In 1574 parliament decided that such severity was counter-productive because no-one would enforce the act, and punishment was reserved for those who actually shot at someone, whether they hit them or not. Death was decreed for those who killed with a gun, and fines were to be imposed on those who wore firearms without a licence. However, the law continued to be widely ignored in spite of repeated proclamations from the Privy Council. In 1579 parliament further criticised the harshness of the punishments, and allowed magistrates greater discretionary powers of enforcement, a measure which did result in a few prosecutions. The worst offenders continued to be many of those noblemen who sat in parliament making these laws, and who were expected to see them implemented. Twelve years passed before in 1591 the Privy Council granted powers to any liege to make a form of citizen’s arrest of any person he saw wearing, bearing, or firing guns without a licence. This was a typical Scottish solution, pushing the issue back into private hands, but it was equally ineffective, and was highly likely to cause violent quarrels if anyone did try to enforce it. Two years later the Privy Council complained that ‘wicked men, holden in deidlie feid and malice, for their privat revenge, sall, be shuitting of hagbutis or pistollettis, touking outragious countenance or reprochefull speichis, do quhat lyis in thame to entir noblemen or gentlemen in blude...’

In 1595, the same year in which an attempt was made to restrain feuding itself, the Privy Council abandoned the thinking of the previous twenty years, and in effect revived the 1567 act. Dismemberment returned as the universal punishment for all firearms offences in conjunction with fines, imprisonment, and the confiscation of the weapons. This, explained the council, was because ‘the murthour committit in Scotland was sa far owt of all measure and mearcie, be the treasonable use of pistols and small gunnis’. Condemnation of the gun as an instrument of ‘revenge of particular quarrellis and privat grudgeis’ in 1596 was followed by a declaration that the Crown intended to abolish handguns altogether. A minimum size of pistol was established, and craftsmen who broke the law were to be executed. While this did give the Privy Council a more vulnerable type of offender on whom they could vent their wrath, further proclamations suggest that this law was no more paid attention to than previous ones.

If enforcement of gun control in England, which began in 1514, created policing problems, Scotland was likely to prove even more difficult. Coercion was one solution, and in 1597 two men who came into the King’s will during their trial were banished for life simply for wearing guns without licences. In that same year Perth burgh magistrates were summoned to ‘byde tryal’ when David Edmonstone of the Wowmet was shot dead within their jurisdiction. Most of this reflected a policy which chose to make a few strategic examples rather than attempting to vigorously enforce the law. Occasionally its full rigours were applied, as when George Porteous had his hand cut off before being beheaded for shooting Adam Bothwell dead the day before. Yet there were few such cases, and the government’s intention was clearly to persuade the majority of men to leave their guns at home by a discretionary use of its powers.

Controlling the market seemed an obvious solution, and the 1596 act was followed two years later by another from the Privy Council which limited gun size to ‘an elne in the rotch’ as a minimum size, while also outlawing certain types of handguns. Yet as long as there was a demand such guns would continue to be produced or imported. In 1600, as an accompaniment to the ratification of the ‘Act Anent Feuds’, parliament criticised the circumvention of the law and authorised the lord advocate and the treasurer to co-ordinate prosecutions. All existing gun licences were cancelled, and new ones were only to be issued by the King and the Privy Council. This allowed the Crown a greater degree of flexibility as the Privy Council was less easily entangled by clever lawyers than the Court of Justiciary, but there was attraction in the revenue-raising potential of the act, such as the Master of Ogilvy paying a £5,000 fine to avoid criminal prosecution for his use of firearms. This 1600 act remained the basis of all future efforts to control firearms. In 1603 sheriffs were threatened with the pains of the law themselves if they failed to uphold it in their localities. Assizes could still refuse to convict if they thought the punishment too extreme, but dismemberment was occasionally enforced ‘to the terrour of all utheris to offend in the lyke soirt’. In the Highlands gun control was much later in becoming a reality, but the large scale shoot-outs and the casual use of guns were eradicated from most of the rest of Scotland during the first decade of the seventeenth century. That was the same period when the greatest advances were made against feuding, and the connection between the two, which was made by contemporaries, appears to have been a justifiable one. Whether the decline of feuding made men more willing to go out without their guns, or whether the successful enforcement of gun control reduced the level of violence cannot really be ascertained.

If guns were a recent problem, private combats, or duels, had a long history of dubious legitimacy in the eyes of medieval Kings. In 1580 the Privy Council pointed out that private combats were only lawful when ‘na uther triall is to be had’, and that the sending of ‘ony infamous libellis or utheris, or to appoint or keip trystis for the combat’ was a criminl offence. This noble-dominated council had little thought of securing a monopoly of violence for the state, and they were simply worried about the potential impact this form of continental violence might have. Twenty years later, in April 1600, the Privy Council were scathing about those who saw an excuse for duelling ‘upoun everie licht occassioun, quhairupoun mony deidlie feidis and uther inconvenientis hes oft fallin oute’. Shortly before this the King had signalled his intention to get tough on this issue when he pressed for the execution of an Edinburgh burgess who had killed a fellow burgess in a private combat, although it was not until November that parliament made death the penalty for unlicensed duelling itself. For the governing elite itself prevention rather than punishment was the only acceptable cure, and in 1602 the Earl of Argyll and the Duke of Lennox were committed to their chambers for challenging one another.

In contrast tuilyies (fights) broke out spontaneously, and were particularly associated with places where men congregated in numbers. When parliament met it was common for the Privy Council to order that no-one ‘tak upoun hand to invaid molest or persew utheris, or gif provocatioun or displeasour be word, deid or countenance, owther for auld feid or new’. In 1597 all inhabitants of burghs were ordered to assist their magistrates in ‘redding and stoppin all tuilyeis’ since so many offenders were escaping. In 1600 the ‘frequent tuilyeis’ of Edinburgh and the Canongate were still allowing men to ‘revenge thair particular querrelis’, and all arms were banned within a mile of wherever the King happened to be.

Kings in Scotland had been trying to restrict the size of noble retinues and convocations since the fifteenth century. To a degree this reflected their own insecurity in the face of such visible power, but these large followings were also the cause of friction as rival groups met, or were the means by which existing quarrels were pursued. In 1579 and 1581 insecure minority governments tried to limit the size of retinues. In 1583 retinues were limited to sixteen for an earl, eight for a lord and six for a baron or knight, and in 1590 these were further reduced to twelve, eight and five respectively, with the additional condition that they be unarmed. This act was extremely unpopular, and unrealistic, and a year later the numbers were increased to twenty-four for an earl, sixteen for a lord, and ten for a baron or knight. It was again decreed that they should be unarmed, that licences should be sought before entering Edinburgh, and that lords would be held responsible for any crimes committed by those in their retinues. This too appears to have been widely disregarded.

Convocations, usually associated with lords levying their forces within their localities, were a threat to local peace, and could be raised in preparation for wider political employment. In 1587 the Privy Council attacked those who raised mercenary companies, ostensibly for service abroad, but in fact ‘to assist some subjects of this realme in thair particulair querrelis aganis utheris, to the raising and intertenying of civile seditioun, insurrectioun and uproare within the cuntrey’. In spite of this both Lord Maxwell and the Earl of Huntly are known to have maintained bands of paid soldiers, and Chancellor Maitland was said to ‘keep a great train to save his life from his enemies’. More commonly lords used dependants and servants in local disputes, ‘chieflie for leding of the teinds this present seasoun of the yeir quhairupoun hes followit and dalie is liklie to follow sindry deidlie feidis and utheris greit inconvenientis’. This habit, however, was a long time in dying, and the act of 1590 was repeated in 1591 and 1595, while in 1610 the King was still reminding his councillors of ‘how odious these convocationis be unto us, as savoreing of that auld barbaritie which wes the roote of all deidlie feidis’.

Yet resistance to such limitations on the status of great men, some of whom were themselves councillors, proved deep-rooted. In 1610 the King wrote to the Privy Council complaining that ‘it wald seame rather that thair apperance war not so muche ether for obedience or cleiring thameselvis’ as ‘to imprent in thair waik hairtit adversarie some feir of thair parteis grite freindship and upoun terrour to enforce him to relinquische his just persute’. He advised them to make more use of the 1579 act’s postponing technique as the best discouragement of the practice since long stays in Edinburgh for lords and their followers would prove very costly. As with gun control, there was an interdependence between feuding and convocations or retinues since the practical need for them declined along with feuding, just as feuds were less likely to be stimulated as large bands of armed men became a rare occurrence.

Those bonds which existed between lord and man were encouraged where the relationship could be seen to be a stabilising influence in society. In 1585 bonding among noblemen had been discouraged for narrow political reasons, but the general band, under which lords recognised their responsibility for those men who lived on their lands, was popular with the Crown. However, it had its critics, like Forbes of Tolquhane, who objected to being lumped together with the rest of his surname, and having to answer for broken men who, through no fault of his, were living within his bounds. It was, he said, peaceful men like himself who ended up paying fines for the crimes of these outlaws, and he poured scorn on this ‘maist pernicious and dangerous practique’. The general band was rarely used outside the Highland zone, and one Lennox landowner complained that he should not have to observe it since none of his men ‘speik with the Irishe tung, but onlie sic landed pecable men as speikis onlie Scottis language’. It was an unpopular measure, but the fact that it reinforced local obligations and authority was in its favour, and the general band enjoyed a modest degree of success.

In all these measures lords were being asked to alter their behaviour and habits, but the Crown was also in need of some reform if it was to be more effective in enforcing the peace. One old thorn was that of respites and remissions. In 1584 the Arran government passed an act against the granting of respites or remissions for capital offences for three years since the practice was thought to encourage slaughters. Those already held were nullified unless a letter of slains could also be produced. As usual good intent was insufficient, and those with a hand in dispensing court patronage continued to exploit the mercy market. Acts of 1585 and 1587 passed equally unnoticed. The difficulties this created in a feuding society were obvious. In 1591 Hay of Gourdie, whose son had been killed by a man who had since obtained a seven-year respite, reminded the Privy Council of the dangers involved in continuing with the practice. Not only was it unlawful, but gif thay salbe frustrat of justice undir pretens of the said pretendit respett purchest of his Majestie privatlie, and be suppressing of the treuth aganis a publict law, and his Majestie solempne vow and promeis, it sail discourage all men to seik redres be way of justice heirefter, bot rather to seik thair privat revenge at thair maist advantage, quhen thai sall find it mekle mair easie to gett ane respett nor to summond and mak voyage to Edinburgh. Within two months of receiving this complaint the Privy Council responded with a new act in which all those who held respites or remissions would be called to account and must give caution, but that their lives would be guaranteed by the Crown. Having given caution, they would then be obliged to ‘mak assythment and satisfaction to the saidis kin and freindis’ under the council’s supervision. The Privy Council would also determine whether the King had an interest in the case, and would impose a fine where appropriate. Thus the irregularly obtained respites and remissions were to be recognised, and justice would be done, not through the courts, but by the kindreds. This act, which was repeated in 1593, was specifically allied to the problem of the feuds, and it too reflected the government’s conservative instincts in placing the emphasis on reconciliation rather than punishment.

For those men who were subject to criminal prosecution, and who tried to evade it, horning remained the Crown’s principal weapon. In 1573 that the Privy Council ordered sheriffs to co-operate more with the treasurer by publishing lists of horned men within their jurisdictions. Six years later parliament again complained that scant regard was paid to letters of horning, and further efforts were made to oil the bureaucratic wheels by increasing the supervisory powers of Crown officers over local officials. Of course, the underlying defect in such legislation was that the public interest which those men who sat in parliament recognised quickly suffered when it clashed with their private interests. However, the ‘double think’ persisted, and in 1584 an ‘Act Anent Slaughter and Troubling Made by Parties in Persute and Defence of Their Actions’ revived legislation of l555. This was concerned with the more fundamental question of whether private persons could kill outlaws without themselves breaking the criminal law. Traditionally outlawry had very often meant that the outlaw was fair game for other men, but most early modern states were aware of the dangers inherent in this. By the 1584 act an outlaw who wounded or slew his pursuer could be further pursued by the victim or his kindred by an irreducible act of horning. However, if the outlaw was slain, his heir and kinsmen were to be absolved of any responsibility for the original crime, and the affair was never to be raised again. Outlaws could, therefore, be slain, whether they were guilty of the original charge or not, but only by the party which was pursuing them. This act was given a trial period of seven years, lapsed between 1591 and 1594, and was then given perpetual status in l594. In 1586 the Privy Council attempted to clarify the distribution of the profits arising from hornings. They decreed that all of a rebel’s property and goods were to be seized, while the rebels were to be warded and stripped of any offices they held. A year later it was decided that all escheats were to fall to the Crown, not to private persons as had been happening, and later in 1588 a loophole was closed by which rebels made over their property to kinsmen to avoid its confiscation. Acts in 1588, 1590, 1591 and 1593 all tried to improve on the administration of horning, but the most effective measure arose from the 1592 ‘Act for Punishment of Resettars of Traitors and Rebells’ which made those who protected rebels liable to the same punishment as the rebels themselves, thus denying outlaws the protection which had so often made their condition tolerable. In 1595 the Privy Council ordered that a list of resetters be compiled, and in the same year sheriffs and their deputies were again asked to compile lists of horned men so that the Crown could keep a central register. Parliament added two more acts in 1597 and 1600 which made minor improvements to the working of the law, and in 1598 and 1601 the Privy Council were heavily critical of sheriffs and stewards for their laxity in enforcement. Revenue was probably as important as law and order in giving impetus to such legislation, and the role of the treasurer in its enforcement was crucial. Yet while all this did make outlawry a more meaningful condition, and rebels were more likely to be brought to justice, horning was still a less than clear process.

Preventive measures were just as important in keeping the peace, and lawburrows, or caution, was intended to anticipate violence between parties by binding one or both to observe the peace. In 1579 parliament divided the pains of Lawburrows between the offended party and the Crown in an attempt to recoup something out of the system by putting the onus of enforcement in private hands. This idea had been suggested ten years earlier, at the 1567 parliament, but had not been enacted. In 1581 the scope of the law was widened to include on the principal, his kindred, tenants or servants. Over the next decade there was a substantial growth in the use of cautions, and in 1593 parliament increased the minimum amount of surety since what was being currently asked for was so small as to be meaningless. A year later money was also the issue when attention was drawn to the number of people who were coming to private agreements with their pursuers, and were thus defrauding the Crown of its share of the pains. The clerk register was therefore asked to hand in a monthly list of cautions to the treasurer and advocate to allow them to oversee enforcement. In 1597 further tightening of the financial aspects of the law took place.

For the Crown the lack of local means of enforcement was a frustration. Some independence from the network of private policing and courts was achieved with the creation of a royal guard. This was formally done by parliament in 1584, but before 1603 the major function of the guard was to provide the King with some security. The Crown did have at its disposal a body of royal officers whose job it was to deliver royal letters, such as letters of horning, in localities and efforts were made towards raising the standards of these officers, and in 1592 parliament passed an act against deforcement, thus enhancing the dignity of their office. It was much less easy to do anything about the higher officials responsible for enforcing the criminal law. In 1567 parliament had expressed concern at the wisdom of granting more heritable offices, especially judicial ones, but the practice was too tied up with the spoils of political life for anything to be done about it. As the King himself had recognised, without attacking the fundamental heretability of the offices nothing could be really achieved and the Privy Council could only protest from the sidelines. In the central criminal court the justice generalship was also hereditary, but the evolution of the lord advocate’s office had a substantial impact upon the Crown’s role in criminal law. As early as 1579 the Privy Council had instructed the lord advocate and the treasurer to pursue ‘all slauchters, convocations and utheris odious crymes’ even when private parties declined to do. In that same year parliament recognised the advocate’s discretionary powers in deciding whether private pursuits were groundless or worthy, in 1582 deputes were first appointed, and in 1587 the privacy of criminal prosecution was further eroded by parliament empowering the advocate and treasurer to ‘persew slaughter and utheris crimes although the parties be silent or wald utherwayis privilie agree’. This did not result in an immediate changeover from party prosecution to the dominance of the third party, but it did represent a shift in legal thinking which allowed the Crown greater freedom to manoeuvre, and it had far-reaching implications for the future which may not have been anticipated at the time.

It would, however, be a mistake to see this as part of an intense centralising process. In 1587 parliament revived the sitting of justice ayres in localities in order to take justice out of Edinburgh where it was both costly and protracted. This response to demands for the local exercise of royal justice was not backed with the funding necessary to make it work, and the justice ayres were greatly circumscribed by the rights of local courts. However, the level of local peace secured before 1609 suggests that in fact the hereditary courts and the leaders of local society did a far better job in co-operating with the Crown in establishing peace than Crown propaganda has led one to believe.

The transformation from a society which resolved its disputes in private bloodfeuds and agreements to one which had them decided by the pleading of lawyers before judges of the Crown was not a sudden one, and it was one which had only begun during the Jacobean period. Feuding may have been under control by 1625, but it was only temporarily contained in the Highlands, and the principles of private justice continued to be recognised in the courts into the 1640s. Councillors might argue that ‘the doing and ministring of justice is the speciall grund quhairupoun his Hienes croun standis and dependis’, but that justice was still equated with peace, not with an objective and punitive law enforced by royal judges. Resistance to making use of the courts continued to be inspired by the same disincentives of cost and time as before, and these may even have become more of an obstacle as fees and legal complexities both grew. Yet in spite of that the Earl Marischal had a point when he wrote to the earl of Errol asking him if they could settle their differences ‘nocht be the law or truble quhilk is the cummour custome of the cuntrie in maiteris of less wecht’. For Marischal, ‘truble’ - the feud - was as unacceptable as going to law, but as far as he could see, men were willing to do both for the slightest of reasons. Sir Robert Gordon suggested that litigation was gradually replacing feuding when he related how two Highland clans had had their feud pacified by mediation, and ‘have continued in peace and quietnes, without oppin hostilitie; bot they have had actions of law the one against the other’. The effectiveness of this newly sharpened weapon was demonstrated by Mackenzie of Kintail who after years of fighting with the Glen Garry MacDonnells finally achieved the territorial expansion he had coveted by exploiting his Edinburgh connections and his own knowledge of the law: ‘Thus doe the tryb of Clanheinzie become greit in these pairts, still incroaching upon thir nighbours, who are unacquented with the lawes of thir kingdome’.

The successful attack on private violence and the confinement of feuding to the less governable parts of the Highlands was one of the major achievements of Jacobean government. Yet it would be wrong to place it wholly within the context of government. Certainly the Crown was responsible for the practical business of making and enforcing laws which curbed violence and reduced the likelihood of feuding in the future. It also benefited in that violence moved closer to being a state monopoly, and power was enhanced at the centre at the expense of the localities. It would, however, be an over-simplification to see the decline of feuding as only the obverse side of state building, as a victim of early absolutism. The achievement was made by the elite of Scottish society setting themselves against private violence. The ministers of the church, the nobility, the King and the royal officials were all involved, drawing on a synthesis of ideas in which the emphasis may have varied, but which led to the same conclusion that violent feuding had to go. The Crown was left more powerful than ever before because that was the price men were prepared to pay for greater peace. As a by-product of that the lawyers were able to grow in status as more and more business was brought to the courts. The church was able to increase its authority, although in some respects the removal of feuding was an effect of the church’s already enhanced influence in society. By helping create a more peaceful society in which the sinfulness of crime was becoming more widely recognised, the church could point to the greater godliness of that society as a sign of Scotland’s elect status. Finally, Scotland moved closer to being a civil society, thus fulfilling a long and often frustrated tradition of humanist aspirations.

Yet pragmatism rather than principles shaped the direction of the campaign, and government put its efforts into making and keeping the peace rather than punishing criminals or sinners. Such an approach was realistic but also derived from the intrinsic conservatism of the personnel of government. James VI and his servants were prepared to make a number of innovations, but those were modest, and stopped well short of any revolution in government. The King himself essentially saw his role as a peacekeeper in medieval terms, and there is little evidence of radical thinking among his councillors. Even if there had been, the nobility would never have permitted laws to be passed or enforced which were an explicit threat to their power. The road to the elimination of private violence had therefore to respect a great array of other entrenched rights and privileges, such as hereditary franchise courts, which often stood in the way of more dramatic change. Peace was achieved, and if much of the bloodfeud’s own principles were taken over by the law, and much of the socio-political framework within which feuds operated remained intact, so much the better. The long-term effects of the disappearance of feuding may have been more complex and more far-reaching than was intended, but in the short term Scottish society simply became less violent. Whether it actually became more just is less easily answered. Private justice continued to operate for some time, but was gradually eroded by the attraction of waging war in the courts, and by the growing belief that justice did not deal in compromises, only in right and wrong. Certainly more people turned to the law for justice, but whether the quality of that justice was any better than that hammered out between kindreds and lords in the bloodfeud is debatable.