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Punishing the Dead?Suicide, Lordship, and Community in Britain, 1500-1830$

R. A. Houston

Print publication date: 2010

Print ISBN-13: 9780199586424

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780199586424.001.0001

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Forfeiture in Scotland

Forfeiture in Scotland

Chapter:
(p.30) 1 Forfeiture in Scotland
Source:
Punishing the Dead?
Author(s):

R. A. Houston (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199586424.003.0002

Abstract and Keywords

Suicide was a crime punishable by forfeiture of goods to the crown and fiscal sources provide the best sources for analysing Scottish suicide. After assessing how other European countries enforced this punishment, the law and practice of forfeiture are explained. The crown in Scotland used forfeiture as an instrument of government by personal lordship, drawing suicide survivors into a relationship based on gifting and gratitude. The chapter covers formal and informal means of handling the often problematic aftermath of suicide. Topics covered include the law of forfeiture, its geography, how violent suicide was, and the financial effects on survivors. The chapter focuses on 1550–‐1700 and offers reasons for the rise and fall of suicide forfeiture that shed light on many social, legal, and political developments.

Keywords:   Scotland, suicide, finance, lordship, gift, violence, government, society, law, regions

1.1 SOURCES AND APPROACHES: FORFEITING AND GRANTING THE SUICIDE'S GOODS IN SCOTLAND

Criminal forfeiture in Scotland was always more restricted than in England, where it included animate or inanimate objects that independently caused human death: ‘deodands' (see 2.11a). Even before the Reformation this type of forfeiture is extremely rare in Scottish sources and no example has been found after 1560; the word ‘deodand’ is unknown.17 Forfeiture of movable assets to the crown was called ‘single escheat’ in Scotland, while forfeiture of land was called ‘liferent escheat’. Escheating goods for crime and gifting them to a ‘donatory’ (assignee or trustee) existed since at least the early fifteenth century, but few suicide forfeitures have been identified prior to 1550, possibly because statutory confirmation was not given to what were accepted prerogative rights until 1551 c. 7.18

Handling single escheat for suicide and other crimes involved a mixture of local administration and central control. Scottish Sheriffs were supposed to account annually to the king's treasurer for income from feudal casualties and accidents like escheats, but from the early sixteenth century this seems to have meant a small composition paid for their court books.19 Thereafter, and despite their (p.31) growing importance in justice and administration, Sheriffs seem no longer to have been actively involved in recovering fines and forfeitures for the crown, and feudal revenues were dealt with directly by the Lord Treasurer. On receiving notice of an escheat, he could, in theory, act summarily to seize goods by letters of intromission directed to a Sheriff or officer‐at‐arms, though in practice from the mid‐sixteenth century (if not before) goods were generally sold or gifted on.20

In early modern England the financial side of suicide forfeiture was handled by a crown franchisee: either a cleric who was the royal almoner or a lay or ecclesiastical lord whose charter gave him that privilege (see Chapter 2). Scotland had a royal or master almoner from the Middle Ages, but his functions were nothing like as extensive as in early modern England.21 Instead, the affairs of Scottish suicides were either dealt with by a franchisal lord or administered centrally by securing a ‘gift’ or assignation to a direct personal nominee of the crown. The only source for a systematic study of suicide in Scotland prior to the nineteenth century is not a judicial investigation (as in England), but the central administrative records of this procedure: the Register of the Privy Seal (from 1489 to the nineteenth century, in various series) and the Register of Signatures (1561–1649).22

Among other business, these sources record grants of forfeitures by the crown. By the mid‐sixteenth century the largest source of escheats was of people ‘at the horn’ (outlawed) for civil debt or criminal offences.23 ‘Signatures' (notices of applications) were posted on the wall of the Exchequer lobby to notify interested parties who might oppose the gift or seek to impose conditions on it.24 A confiscation and gift or ‘donation’ of this kind passed on the authority of a warrant under the sign manual (per signaturam). Once passed, the signature became an authority for the Privy Seal Office to write the actual grant and apply the Privy Seal.25 The king personally subscribed the documents until 1603 and then such routine grants passed under the cachet or facsimile stamp.26 A donation (p.32) was a deed of transmission which gave no right of property in the goods, but only acted as security.27

The Scottish Exchequer was central to this process. A lesser body than its mighty English equivalent, it existed from the thirteenth century to audit royal accounts, but it did not become a separate court until 1584 and was not a permanent administrative body until 1626.28 As early as 1579, Exchequer was empowered to dispose of single escheats to the benefit of creditors, and routine administration of grants by authority of the Privy Seal was delegated to the Barons of Exchequer at the start of all reigns after the court was established.29 The Lord Treasurer or Treasurer‐Depute (commissioners of the Treasury 1667–82 and 1686–1708) fixed the composition and ‘revised’ (examined) the signature, which was passed by the Lords of Exchequer. From the Restoration, and probably before, the conditions of the gift were set out in a bond signed by the donatory and lodged in the King's Remembrancer's Office. After 1708 the application was revised by one of the Barons of Exchequer and finally passed by being signed by all the Barons.

Because they are financial and administrative documents rather than judicial ones, gifts of escheat offer no description of the process by which the death was judged suicidal (except when invoking circumstance or public opinion) or how the applicant came to make a claim.30 An application did not even require official authentication of cause of death: in one instance the subject's death itself was denied by counter‐claimants (see1.8). Other information is sketchy. Date of registration of escheat is always given and generally also the date of death (but never age); the name, residence, and status of the dead person and the beneficiary are usually stated as well as the means of death. Sums paid for the gift are almost always given until the 1640s, when Exchequer ceased recording compositions separately: it exacted them till 1708, but recorded them as a lump sum.31 Accounts which separate such payments do exist, but they do not give the reason for the escheat.32

The Registers of the Privy Seal and Signatures are not easy sources to use. Not all Clerks to the Seal recorded the reason for the escheat in the index or minute books, and those that did only specified certain reasons. The most common one is ‘bastard’, showing that the person was born illegitimate and had not been legitimized by the crown during life, meaning they could not bequeath to an heir and their goods were forfeit to the crown as ultimus haeres; bastardy escheats continued into the nineteenth century.33 Some bastards also (p.33) killed themselves—like Andrew Webstair, drowned in the water of Almond in 1586.34 The more detailed volumes of the ‘English Register’ of the Privy Seal's new series, starting in 1661 and kept in English rather than Latin, have only names as a marginal guide. The Register of Signatures records all gifts of escheats, including some that do not appear in the Register of the Privy Seal. Compositions for gifts are also recorded in the printed sixteenth‐century Lord Treasurer's accounts, but many of the gifts were gratis in this period.

In the absence of any shortcuts, the only way to proceed is by laborious searches through Exchequer and Privy Seal records. Pickings are slim, for formally registered gifts of suicide escheats were uncommon even in their heyday. For example, the printed volumes of the Register of the Privy Seal (1556–84) record approximately 2,300 escheats. Forfeitures are the best ‘population at risk’ to be quantified, for the two sets of Registers contain other kinds of transaction. Among these 2,300 are only fifty forfeitures and gifts of the movable estates of suicides: just over 2 per cent of all escheats.35 The statistical population derived from the Register of Signatures and the Register of the Privy Seal (the manuscript versions have been used throughout) is 348 registered escheats for suicide, 1550–1764, the date of the last such entry. Small as a statistical population of 348 may seem compared with the thousands generated by MacDonald and Murphy, it is close to the 354 cases Murray found in English judicial records, 1171–1404; Butler compiled 718 cases of self‐killing from English coroners' records, mainly of the thirteenth and fourteenth centuries.36

While escheat of criminals and debtors has received some attention for Scotland, that of suicides has not. More has been said about the relationship between crown, nobility, and people, historians stressing that the Scottish crown was nothing like as powerful as the English. They mean that Scottish kings had to compromise more extensively with their aristocracy and they lacked the bureaucratic and administrative apparatus that, perhaps from Anglo‐Saxon times, ‘the state’ in England had used to create legal and fiscal unity.37 A common law and a national circuit court system exerted close and effective centralized judicial control over local and corporate liberties in England. With less need to make concessions, the English crown was seemingly better able to exert its will on subjects. In Scotland, the crown supported diversity and bolstered existing privilege until much later than in England. With less money and less evident power, Scottish kings had to make more obvious accommodations, and they had to work through less ‘efficient’ administrative structures where the interests of subordinates diluted the will of the sovereign. From the outset, a model of political relations that juxtaposes big state v. little people is therefore unlikely to be appropriate for (p.34) Scotland. Nor did investigating suspicious deaths involve the local community as formally as in England. People expected to have their say, but there was no structured public participation like there was at an English coroner's inquest.

To understand the implementation of patrimonial penalties, one aspect of the ‘bad’ death that was suicide needs to be remembered. The good death was one for which a person had prepared: by making their peace with God, by settling their worldly affairs, and by involving family and neighbours in their impending demise. All of these were done publicly. Suicides may have found a personal equivalent, giving off signs or dropping dark hints that they wished to be dead, but leaving only apprehension, confusion, grief, recrimination, and uncertainty among survivors. Some made wills before they died and, if we believe the testimony of beneficiaries, settled or forgave debts or transferred assets. Yet they did all this obliquely, vaguely, or privately, and thus denied the participative quality that made death socially acceptable and personally tolerable.

The bad death left gaps to be plugged and social networks to be repaired. This could be done by the survivors themselves: emotional wounds could only be healed by self‐help or by the support of family and friends. When it came to the material world, settlement could arise informally with assistance from members of a social and economic network, or it could be handled at law, but it sometimes required the formal exercise of power. Early modern people sometimes needed (and felt entitled to) a little help, and this was rarely more the case than when the death was self‐inflicted. Cases where suicide was occasioned by financial problems might be particularly problematic, but any man or woman focused on achieving their own end might ignore all, or part of, the normal preparations for a good death. Suicide destabilized family and community, requiring formal or informal resources to resolve resultant disputes. These ranged from neighbours to local nobles to courts of different kinds and, ultimately, to the crown, which could supersede the preferred path of local settlement in the interests of peace.38 While the lord may have been the only party able to prosecute suicide, because it was the only crime in which there was no living injured person, this does not mean that there were no losers from such deaths.39 Donations of escheat were a way of intervening to help those potential sufferers.

One phrase modern observers use to describe this intervention is ‘social adjustment’ or ‘social engineering’.40 The phrase has wide connotations that include the creation and maintenance of social groups by conferring material benefit and/or positional advantage, usually on elites, but also on peasants for military or political reasons. These are modern phrases with historic equivalents. (p.35) Early modern participants in the process also talked of art or artifice in the conduct of government and society, but they used the vocabulary of crafts. Thus James VI and I extolled his role as king: ‘let it be your chiefest glory, to excell in your owne craft’. However, he also referred to the crown's servants and their jobs as specialist crafts, using ‘every man according to his giftes' in many aspects of his rule.41 This chapter sees social adjustment or craftsmanship as a central feature of government and one which reached beyond the elites to touch all levels of early modern Scottish society, for lordly intervention was often both well informed and remarkably detailed in its attention. Subjects might experience the Scottish crown as threatening or predatory, but they also envisaged and engaged its personal lordship.42 Lords managed the very personal affinities, which were at the heart of society and politics in late medieval and early modern Scotland.43

Understanding early modern Scottish government and society on its own terms is important, but ideas drawn from the social sciences can still help the historian to appreciate how the implications of suicide were handled. Granting forfeiture was known as ‘gift of escheat’ in marginalia or index entries of the Register of the Privy Seal or the Register of Signatures. It was not described as a sale and, while escheat itself was conceived as a punishment, the purpose of applying for, and being granted, a gift was not exclusively (or even principally) punitive. Instead it involved acquiring or passing on an interest in a portion of the movable goods of the deceased. That the procedure was described as a gift is telling, for social anthropologists have long been aware of the importance of gift relationships.44 More recently, scholars from the field of history, economics, and literary criticism have offered subtle analyses of the complex place of the gift in early modern societies.45

Gifts of any kind performed multiple functions. They could be an expression of respect or gratitude for services rendered, a way of cementing existing relationships or of forming new ones, and a signal of expectations.46 The exact meaning depends on the type of gift, the occasion or timing of giving, and the context of relations between giver and receiver. ‘Gifts were to (p.36) express sentiments of affection, compassion, and/or gratefulness, but they were simultaneously sources of support, interest, and advancement’.47 For Avner Offer the gift is voluntary; it involves an expectation of reciprocity, open as to value and time; it communicates regard, but is also motivated by a desire for esteem.48 Coming ultimately from the crown and proximately from the royal court or Exchequer, lord's bailie (steward) or burgh treasurer, gifting escheats was a sign of power, which could be used symbolically and instrumentally. Donations established, reinforced, or advanced a wide range of social and political relationships that focused on the ideals and practices of service; they were tokens or tools in articulating, communicating, or negotiating those relationships. They were sought out to vindicate rights through the endorsement of royal authority.

1.2 SCOTS LAW AND SUICIDE: A DISTINCTIVE PATH

‘Self‐murderers act against self‐preservation, one of the strongest impressions which the deity has made upon us, and Crime consequently one of the strongest Laws he has given us; they take upon them to desert the post assigned them by their creator, before they have done their duty. They rob the community of its members, and they cheat their friends of what debts of gratitude they owed them.’49 So wrote Edinburgh University Professor of Anatomy Alexander Monro, in a comprehensive conduct manual for his daughter. His arguments lacked novelty, simply rehearsing Thomas Aquinas' thirteenth‐century Summa Theologiae—a legalized spiritual text which itself drew on Aristotle and Augustine and which provided the structure for most of the legal, philosophical, and theological prohibitions against suicide from then until the nineteenth century.50 For the seventeenth‐century jurist Sir George Mackenzie of Rosehaugh, ‘he who kills himself kills God's subject’. More originally he continued: ‘The law likewise considers him who would kill himself as one who would spare none else, and condemns an humour which is so dangerous’.51 Lawyers accepted that suicide was against the laws of man and God and they roundly condemned it. Beyond this, Scots law had remarkably little to say. Statutes rarely mention suicide; legal texts dealt only briefly with it and then almost exclusively with the holding or surrendering of property. (p.37)

‘Gif ony man slayis himself, all gudis and geir quhilk pertenit to him the time of his deceis, aucht and sould pertene to the King as eschete.’52 So wrote the jurist Sir James Balfour in the age of James VI. He described escheat propter delictum tenentis rather than propter defectum sanguinis, for heritable property was not affected by suicide in early modern Scotland, and the self‐murderer's bloodline was not corrupted. Confiscation took place on the grounds of failure to fulfil an obligation to the crown, thus rendering the defaulter a ‘rebel’ or outlaw in the eyes of the law.53 However, the procedure was purely civil, and in Scotland the movable property of a suicide fell to the crown by single escheat on proof brought before ‘the Session’ (later the Court of Session) or other competent court in an action against the kin and/or executors of the deceased. Mid‐eighteenth‐century lawyers like John Erskine of Carnock, an advocate and professor of Scots Law at the University of Edinburgh, thought that the escheat was on the same grounds as forfeiture of a murderer's goods and was ‘of its nature criminal’, even if the case was ‘only pursued, ad civilem effectum’ before the Court of Session, ‘ratione incidentiae, because such proof is necessary for explicating their jurisdiction’.54 Later lawyers (such as Bell in the 1830s) followed Erskine.55

Recognizing the civil emphasis, criminal lawyers were sparing in their coverage. Following Mackenzie (but taking on board the 1770 case of Mungo Campbell discussed in 4.5), Baron Hume devoted but one paragraph to suicide:

Whatever notions may be current among the vulgar, there seems to be no warrant in law or practice, for inflicting any indignity on the remains of those unhappy persons, who finish their course in this unnatural way. But according to some authorities, the ordinary patrimonial consequence of homicide shall take place against their executors, by the confiscation of all their moveable goods; . . . Craig has mentioned the case of Thomas Dobbie, in which it was found, that even insanity is not a relevant plea to prevent the confiscation: ‘Neque insaniae objectio recepta, cum nemo sanus id faceret’. But this seems not to be sound reasoning; and the lawyers of later times have disapproved of that judgement.56

(p.38) Historians used to the difference between coroners' verdicts of felo de se and non compos mentis, which established intent and thus liability to forfeiture, will find striking the offhand way that Hume mentions both how to ascertain suicide and how to assess responsibility. Scottish courts consistently applied a more or less uniformly low standard of proof for proving suicide and a correspondingly high one for exculpating it. The ‘lawyers of later times' included Hume's predecessors Mackenzie and James Dalrymple, Viscount of Stair, who accepted that insanity could sometimes provide protection to an estate. It was Mackenzie who reported (more cautiously than Hume) the 1598 Court of Session judgment on Thomas Dobbie that ‘no man would kill himself if he were not distracted, and so if distraction could defend such as killed themselves against confiscation of their movables, it would defend all who killed themselves and so the law should have no effect; but this must be interpreted of some degrees of madness for sure no man kills himself, except he who is somewhat mad’.57 Mackenzie continued in the same vein:

Whether one who is mad, but has lucid intervals, is presumed to have killed himself in his madness, or lucid intervals, is not so clear, and depends much upon Circumstances: but since none use to kill themselves except under some distemper; so therefore, it is more humane to refer this killing, to have been in the hours of madness, except it can be proven that the killer used, even in his lucid intervals, to wish he were dead or to commend Self‐Murder.58

He concluded that ‘furiosity and madness ought to defend against all Punishment in this case since a furious Person has no will in the construction of Law, and the will is that which makes the Crime’.59 According to Stair, ‘Furiosity taketh away the escheat of those who are self‐murderers, being then furious, not knowing what they did’.60 Mackenzie and Stair did not disagree with the authority cited—Sir Thomas Craig—but merely sought to understand where to draw the line. All started from a quite different premise to that of post‐Restoration English inquest juries. Early modern Scottish legal debates concerned when insanity could offer protection to an estate, not about whether it should invariably do so, as perplexed the English.

Mackenzie explicitly said that he was puzzled by this judgement ‘as Craig relates it’.61 He himself believed that ‘a total aberration from reason’ must excuse suicide, but that other conditions did not, including ‘a Species of Melancholy’ or ‘Hypocondrick fits, or the first degree of madness, for sure no man kills himself, except he who is somewhat mad’. However, there might be circumstances between these poles which could defend against forfeiture: ‘the difference betwixt (p.39) these two must be inferred from the various circumstances, which attends such diseases, and from the declarations of Physicians, who waited upon them’.62 Mackenzie rejected the notion that suicide of itself was proof of mental disability, as did all Scottish legal texts produced between the late sixteenth and late nineteenth century.

Craig was puzzled by Dobbie's case and those who followed him struggled with the reporting of that judgment. Craig used it as an indicator of the inconsistency in the Court of Session's judgments on escheat of suicides, because it seemingly refused insanity as a defence.63 Yet both the particular judgment and the alleged inconsistency are better seen as parts of an attempt to set a high standard of proof of insanity in suicide cases (and others). The operation of the law in the sixteenth and seventeenth century shows that lawyers tended towards the notion of ‘strict liability’, where intention is secondary to action, and were hesitant in allowing incapacity to play a role in their treatment of suicide.64 Intent was barely relevant if blame could be established. What was important about the Court of Session's decision in Dobbie's case was the adoption of strict criteria, rather than any assertion that insanity could never be a defence against escheat. Early courts were quite capable of drawing fine lines such as distinguishing culpa (referring to crime) from delict.65 The Lords of Session were simply asserting that in order to maintain dread of the laws on suicide, it could not automatically, or even easily, be excused by lunacy. Multiple examples of seriously aberrant behaviour and speech were required to prove madness, whereas some kinds of sickness were only similar to the temporary clouding of judgement caused by drink, or grief, or anger. Mackenzie guessed correctly: ‘I think, the fury there has not been strongly qualified, and that it has been but a Species of Melancholy’.66

Against Craig (who must have known better), the Court of Session did sometimes uphold the argument that the deceased was insane in order to prevent single escheat. In Reidpath v. Wauchope (5 June 1613), Robert Reidpath pursued an action of declarator of escheat (a suit seeking a declaration that a right belongs to the plaintiff) as donatory of the forfeiture of Marion Forrester, spouse of a landowner called William Wauchope, who killed herself by jumping off a wall or cliff in July 1606. Reidpath claimed Marion's half of their goods, amounting in all to 100 sheep, plus cattle and oxen, a horse, substantial quantities of grain and £100 in household ‘plenishings'. The case immediately demonstrates that a man had no prescriptive right to his late wife's escheat, and that married (p.40) women had property interests of their own. Wauchope claimed his late wife had had a fever for twenty days in November 1605 that ‘turnt in ane furie’ lasting until her death: she ripped her clothes and tried to hurt herself or anyone who came near her; she cursed and refused to eat or take medicine; she had to be watched constantly to prevent her harming herself and to be strapped to her bed; she was taken under restraint to ‘medicineris' (doctors) in Edinburgh, but they pronounced her incurable and she was brought back home; twenty days before her eventual death she tried to hang herself.67 The judges found that ‘her furie being qualified [established] be the space of six moneth befoir her deceas; and swa she could never incurr paine in her body, nor lose in her goods, mor nor [any more than if] she had slaine ane third persone’.68

The last analogy is important, for the standard of proof was explicitly that which would obtain with a living person subject to criminal charges, even when made by a civil court. The associated judgment of ‘responsibility’ is also illuminating. Reidpath was unable to enforce his gift of escheat, but the judges gave him some settlement. Wauchope tried to argue that the debts exceeded the assets, but the court found that he ‘wold be compellit to make the half of his goods furthcumand without deduction of his debts' to satisfy the claims on her estate. There was no doubt Marion was deranged, but equally no question that some of her assets should be used to satisfy creditors, for in civil and criminal matters alike, Scots law regarded ‘assythement’ (compensation) as central to justice until at least the end of the seventeenth century. Marion was not responsible, but her survivors were not without responsibilities. Even when mens rea was absent and culpability had seemingly been disproved, the legal doctrine of strict liability still imposed civil accountability.

It was easy to prove suicide, and the entitlement of a claimant was also simple to demonstrate, leaving the defendant with the difficult task of offering reasons why the effect of forfeiture should not be carried through.69 Returning to the case of Thomas Dobbie, counsel for the children argued that they could prove his insanity: ‘and true it was, that this man was furious at the time of destroying of himself, and committed infinite acts of folly and fury all his life, and specially twenty days immediately preceding his decease’.70 However, the magistrates of Edinburgh had already gone through a judicial process to prove that he had killed himself: enough to activate forfeiture in Scots law and thus throw the burden of proving insanity onto interested private individuals like the family. (p.41)

What appears inconsistent in the other judgments Craig cites is in fact a discriminating approach to insanity and suicide: in some cases a connection could exist, but not in others, and the difference had to be substantiated according to rigorous standards of proof. It is true that Craig worked in a difficult period of transition, but the allegation of inconsistency was argumentative, coming from men who expected the law to be sourced, framed, and operated in certain ways, including Robert Burnet, whose 1655 preface to Craig claims that early decisions at the Court of Session were varied and uncertain.71 Seeing confusion and unpredictability where there was more likely law in the making (and apparently oblivious to the ambiguities and inconsistencies in any scheme of law), they treated a developing legal system as one that had no proper law. The structures of thought linking legal rules were also changing. Burnet commented not only in a legal climate that was questioning scholastic learning, based on Aristotelian dialectic which had accepted principles of uncertainty, but also against a background of theologically founded demands for transparency, consistency, and predictability, in place of the personal and seemingly idiosyncratic workings of justice (see 1.5).

Dobbie's was not the only case where apparent insanity was deemed irrelevant. In August 1570, the goods of John Powry in Perth were forfeited ‘throw the said umquhile [late] Johnis deid committit be him within the burgh of Perth . . . liand in ane greit fever and slaying himself with ane knyff in the raige and fury of his seikness'.72 Powry was forfeited nonetheless, and at first sight it looks as if here and on other occasions people were being escheated as suicides when distracted. Yet this is not as indiscriminate as it appears, for discretion could be applied after forfeiture was activated: Powry's escheat went to his widow and children. Providing contextual information about alleged insanity was not necessary to the application's success, but by showing acceptance of wrongdoing regardless of state of mind applicants strengthened their hands. People had to apply for escheats, and there is enough individuality in their phraseology to suggest that the wording was shaped by the applicant around set styles.73 Applications contain multiple examples of what English medievalist John Bellamy calls ‘phrases of afforcement’: loaded words designed to acknowledge wrongdoing, which communicated what had happened to other involved parties (including both Exchequer officials and creditors or debtors of the deceased) and helped to elicit a desired outcome on favourable terms (see 1.9).74

Cases like Powry and Dobbie are explicable in terms of standards of proof and also of expected outcome. On the surface, Scottish lawyers dealt with the inherent difficulty of proving suicide by taking a strict line on liability, finding (p.42) people guilty of self‐murder on presumptive evidence and ‘punishing’ them apparently without discrimination. Motive and mental state were irrelevant to a set of procedures that dealt primarily with contingency.75 Indeed, the two‐stage process found in English coroners' inquests—determining cause of death and then whether suicide was wilful—did not apply in Scotland. When suicide was subject to an inquest its aim was to determine whether the death was self‐inflicted or otherwise.76 Scots law never made the transition to routine assessment of the mental state of suicides found in England from the Middle Ages. When the first systematic (if summary) recording of investigations into suspicious deaths began in 1848, state of mind was noted for only one of 324 suicides between then and 1857.77

In early modern Scotland the standard of proof required to substantiate suicide was much lower than that needed to prove that the person had been mad at the time of death. For example, the moral certainty of the community was sufficient in the case of Patrick Harlaw, who hanged himself from a tree in 1613 ‘as is notourlie known’.78 Those pursuing and recording this event were as sure as they needed to be that Patrick killed himself, whatever evidence there was to suggest otherwise. Hazy accounts did not get in the way of encompassing a problematic death within a crown‐assisted framework that helped to resolve some of the difficulties created by suicide. Thus, Mackenzie allowed the possibility that strong ‘presumptions . . . are sufficient to infer Confiscation: for though presumptions be not sufficient to prove a Crime, to infer Capital punishment, yet they are oftimes sustained, to infer Confiscation of Moveables, or other civil effects. And if presumptions were not sufficient in this case, Self‐Murder could never be proved, for the committers choose retired places, and quiet times, for executing their wicked designe’.79

While distancing himself from Mackenzie on some points, Erskine carried on his spirit (and that of Balfour and Hope) when he warned that furiosity was only a good defence against escheat ‘when it amounts to a total alienation of mind’.80 (p.43) Bearing this tradition into the nineteenth century, Robert Christison, Professor of Medical Jurisprudence in the University of Edinburgh, inserted a passage in his lecture ‘Of Disqualifications' advising his students not to believe that outrageous acts alone, without prior history of other signs of insanity, necessarily indicated madness:

Some people have been so lenient as to maintain, that suicide is in itself a proof of mental derangement; and you will observe that in England this crime is almost always attributed by the coroners' juries to temporary insanity. At the inquest upon the Marquis of Londonderry [1822] the coroner stated that ‘he held it to be an axiom in law & in reason, that no man in a sound state of mind will put himself to death’. . . . It is well to permit this when the only effect will be to dissipate the cloud that hangs over the memory of a rash and unfortunate man. But greater rigour will be required if, upon the conclusions drawn from that fatal act alone, depends the validity or nullity of a deed he has executed immediately before.81

Christison went on to discuss two cases, which confirmed in law the lack of any necessary association between suicide and insanity.82 In both cases—Callman v. Gourlay (1794) and Walker v. Macadam (1806)—a man had had a long relationship with a woman regarded by his family as of inferior station; children had been born to the union, the formalization of which was quickly followed by the man's suicide; and the family of the deceased man sought to have the union annulled on the grounds that any alleged contract had been entered into when he was mentally incapable of exchanging that informed consent which made a binding marriage. Contrary to Christison's summary, in neither case was it argued, either in the trial or at appeal, that the fact of suicide by itself demonstrated insanity prior to the act.83 Instead, counsel for the party seeking to annul the marriage tried to show that self‐murder was simply the culmination of a period of mental derangement, which they went to great lengths to prove.

In both cases the marriage was upheld on the principle summarized by those seeking to confirm one marriage (the ‘pursuers'): ‘Altho when depression of spirits arrives at the height of suicide, it may perhaps be construed into insanity, yet the respondents do not understand that this depression in its progress, unless it rendered a man completely unfit to manage his affairs, was ever held sufficient to convict a man of lunacy’.84 They prevailed in demonstrating that ‘Mr Gourlay (p.44) was in good health, in the fullest possession of his faculties, and doing business' as usual right up to the day he hanged himself in his own bed. In the other case, the standard of proof was explicitly stated too. ‘The alleged fact of insanity must be clearly & directly proved, not by curious and metaphysical enquiries, into the nature of the mind, or by wire‐drawn speculations in physiology, or medicine, but by plain and broad facts, level to the observation of all mankind.’85 Courts adhered to ‘common sense’ understandings of proof in finding no necessary connection between suicide and more general mental disability. People were sane until proven otherwise by criteria firmly embedded in everyday social life, but also closely defined by law.

1.3 THE WORKINGS OF FORFEITURE: WHO WAS FORFEITED, WHAT WAS LOST, AND WHO GAINED?

The previous section showed how Scots law made it easy to declare someone a suicide, but difficult to prove exculpating circumstances. To all appearances, the law was weighted towards the crown as the hand of the Exchequer reached out to Scotland's localities. Yet it is immediately clear that the crown in Scotland hardly ever administered suicide escheats itself. Out of 348 cases there are only three recorded occasions, all from 1682–3. One was the prominent suicide of John Falconer of Phesdo, an ‘old and infirm’ former warden of the Mint who hanged himself because he feared criminal proceedings for ‘malversations'.86 The donation was made to Hugh Wallace ‘our [HM] cash keeper for our use’.87 Though this form of words does not preclude the possibility that the funds were re‐transmitted, Falconer was in effect fined as heavily as living fraudsters in this case, including his son; that his forfeiture went to the crown may have been because he had defrauded the king, making Charles II a ‘real’ rather than merely a titular creditor. Some 12 per cent of donations went to central or local government officials (Table 1), half of these between 1584 and 1603. Occasionally, corporate bodies handled them directly. One example comes from August 1643 where the crown granted the escheats of a convicted witch and an accused one who had committed suicide because

the baillies, thesaurer and counsall of the burgh of Carraill [Crail, Fife] representing the bodie of the samene burgh have bene of great charges and expenses in apprehending keiping in ward trying and causing execute to the death of sundry personis inhabitants of the said burgh for the odious cryme of witchcraft and his majestie being willing that thay (p.45)

Table 1 Donatories of Escheated Suicides in Scotland, 1550–1764

Donatory

N

% known

kin

108

33

landowner or employer

93

28

official

39

12

neighbour

35

11

legal officer

33

10

royal servant

22

7

unknown

18

total

348

101

should have some recompens for their paynes takin and charges waired and bestowed be thame thireanent.88

However, in virtually all instances, the administration of goods was gifted (either gratis or for a fee) to private individuals who had a personal interest. What money was extracted in settlement went to ‘the procurator fiscal of the court for his majesties use’ or directly to the Scottish Exchequer or to a subordinate lord's coffers.89 Acts of beneficence took place most obviously at the point when forfeiture was granted, rather than in the ultimate spending of any proceeds. The late medieval and early modern Scottish Exchequer did, however, use income from feudal ‘casualties' (unpredictable revenues) and ‘accidents' or incidents to pay out ‘alms', broadly construed to include gifts and royal household expenses.90

Table 1 shows six categories of beneficiary from donations of escheats. Kin are explicitly so described or people who shared a surname. ‘Officials' are those attached to the Exchequer or other branch of central or local government (men designated Exchequer officer, burgh or Kirk Session clerk, minister—or any of their servants) other than the king's household: ‘royal servants'.91 A ‘neighbour’ is here defined as someone living in the same ‘ferm toun’ (hamlet) or burgh. Legal officers include advocates (like barristers), writers to the signet (like solicitors), writers, notars, and ‘messengers' (properly ‘messengers‐at‐law’, who were executive legal officers), or any of their servants: men versed in the law who commonly acted as factors or trustees for the living and executors for the dead. Except where a widow and children, mother or sister were involved among kin, all the donatories were male.

The issue of payment needs to be dealt with immediately, for it sheds indirect, but important, light on the choice of donatory. In the sixteenth century bastards (p.46) paid a more or less fixed sum as composition for their legitimation, whereas other escheats and remissions were related to the nature of the offence and to the circumstances of the offender and (if appropriate) his or her survivors; they were open to negotiation with the Treasurer's compositor until 1578, after which compositions were set by the Treasurer or treasurer‐clerk.92 The composition charged for suicides was usually small and in 23, or 8 per cent of the 279 cases where explicitly stated it was free93; 43 per cent of fees were between £2 and £9 (120 gifts); just 7 per cent were £50 or over. The mean value was £34, skewed by a few very high values (14 compositions were for £100 Scots or more). The largest composition paid was 2,000 merks (£1,340) for the movables of Thomas Dobbie, followed by 1,600 merks for those of George Borthwick of Todhills in 1635.94 The next largest payment was £1,000 in 1615, then 1,000 merks paid by Janet Fockart in 1579 for the goods of her late husband James Haithwre, burgess of Edinburgh.95 Median composition was £8, the mode 10 merks (£6 13s 4d).

Large sums are unusual, but the charge on an estate was greater—possibly much greater—than the often low composition, for there were additional costs for signatures and registration. In 1686 Sir William Paterson paid out £6 13s 4d composition to get a gift of escheat—but nearly £60 more under fourteen different headings, including payments to the presenter of the signature and of the gift, the writer and keeper of the Privy Seal, the Lord Advocate, three different servants, and two sets of ‘drink money’.96 Even in Scotland, where administration costs were much lower than in England, charges on any dead person's estate could be considerable—perhaps 10–15 per cent (because of fixed costs, the proportion on smaller estates tended to be higher)—and this did not include the cost in time and emotional energy of winding up affairs.97 This seems to support Joel Hurstfield's argument that, while courtiers, informers, and officials creamed off far more than the crown received from casualties and (p.47) accidents, the monarch benefited because such people were able to line their own pockets and thus did not have to be paid. ‘The direct gain to the sovereign was indeed small, the indirect return was far from negligible.’98

This neo‐classical economic assumption, which sees donations as a substitute for direct remuneration, pervades interpretations of both forfeitures and government more generally, for the Stewarts (like the Tudors) generally liked to pass financial obligations on to others.99 Alongside this is an equally common assumption about medieval and early modern government and people in Britain, as expressed by Sara Butler in discussing medieval English coroners' inquests: ‘Where the king was fundamentally interested in profit, the [coroner's] jury had a much broader array of concerns from economics to religion to popular fear of ghosts’.100 This rehearses a conventional dichotomy between a single‐minded centre and a plural periphery or, in Marxist terms, between maximization of surplus extraction and minimization of exploitation, where extraction was enforced by a superstructure of political and legal institutions. The historicized emphasis on profit also derives from Hurstfield's mid‐twentieth‐century scholarship on Tudor economic policy which, he argued, ‘had nothing to do with the feudal relations upon which medieval society had originally been constructed. What was left may be described as fiscal feudalism kept alive for no other reason than to bring in revenue to the government’.101 Hurstfield sees the pure personal relationships of service polluted by financial need and political exigency.

Variants on these assumptions pervade Scottish historiography. A purely financial interest is suggested by Craig Madden, who believes royal intervention in the sale of feudal casualties was to protect investors and thus maintain the value of the sales, pointing to a ‘heavy concentration on the fiscal side of feudal casualties' in the late fifteenth century.102 In his scheme, policy on royal estates and revenues was designed to allow full exploitation of their economic potential. The fiscal focus appears in subtler guises too, depicting escheat as a system of informal and unofficial taxation. Following Ernest Gellner, Julian Goodare sees the light hand of early modern fiscal feudalism arising from a reluctance to antagonize taxpayers whose potential ‘diminishes if they are brazenly or arbitrarily oppressed’.103 A variation on this argument is that many small payments were less threatening than one larger one.104 Yet another is that moderation in feudal (p.48) levies reconciled subjects to greater royal power manifested in regular taxation on land, customs on imports, and taxation of interest payments.105 Donations of escheats may have functioned thus, but they may also have been an end in themselves, arguably closer to what sixteenth‐ and early seventeenth‐century government meant than to the coming fiscal state of the late seventeenth and eighteenth century, which forms the sub‐text to Goodare's argument. Donations of escheats were substantive to the nature of social and political life, rather than simply a sort of palliative or decoy.

Tangible benefits might naturally flow from these transactions, and apparent concerns with profit are sometimes evidenced. In 1492 the burgh of Edinburgh, which had escheat rights, ordered criminal forfeitures to be delivered to, and accounted for by, its treasurer ‘becaus the baillies of before appropriat sic escheittis to thamself and sufferit nocht to cum to the commoun proffeit’.106 However, the order was aimed at centralizing patronage in the grant of escheats by curbing ‘free‐enterprise’ donations: a more than fiscal understanding of ‘profit’. Indeed the financial profits of justice to most lords were small and the real benefit (and the apparent aim of handling forfeitures) was the social and political capital gained by demanding and receiving service.

Gordon Donaldson thought that, while justice ayres produce ‘worthwhile sums' for James IV, proceeds in local courts were ‘negligible’, and only land forfeitures really helped his financial position.107 Donaldson saw James V doing better from feudal dues, but the situation may not have changed much by the time of James VI. Even then, Goodare concludes that revenues from feudal casualties and accidents were ‘small, though not insignificant’.108 Justice could be lucrative—regent Morton derived £16,000 from ayres 1574–6—but income from suicides was, by comparison, trifling.109 Indeed, George Hewitt notes that Morton neglected compositions on signatures as a source of income in favour of the political advantages that he could gain from gratis grants or subsequently waived payments. Of 515 donations between March 1573 and April 1574, 356 (69 per cent) were given free and many more remitted.110 (p.49)

Indeed, the crown derived little aggregate financial benefit by granting escheats of suicides. Over nine decades (1550–1639), when compositions are known for almost all escheated suicides, the crown should have received a total from compositions of just under £9,000 Scots or about £750 sterling. The escheats state that £2,720 should have been received during the 1610s, £2,050 in the 1590s, £870 in the 1570s, and lesser sums in all the remaining decades. Even if all these sums made their way to the Exchequer (as they did in the late sixteenth century at least), the income averaged only £100 Scots or £8 sterling per annum over the whole period. Other types of ‘remissions, unlaws and wills' brought in much more money: £5,950, 1571–4, of which £3,330 came from remissions.111 Given the Jacobean and Caroline court's naked venality, the paucity of the sums for suicide forfeitures is striking. Later Stewart coffers derived no more benefit. Compositions of all types (including registering charters) brought in £17,448 Scots (roughly £1,450 sterling) from June 1688 to March 1692.112

If the crown made only small amounts from forfeitures, what effect did they have on the survivors of suicides? Most escheated suicides were ordinary people and the assets involved were often ‘inconsiderable’.113 After removing duplication, some 347 individuals and one married couple were escheated 1550–1764.114 More than half the population escheated were describe as being ‘in’ a place, showing they rented land there rather than owning it, or were explicitly described as a tenant or cottar. Had they been owners or ‘heritors' (or some other title such as ‘portioner’—owner of a section of an estate) they would have been described as ‘of’. Burgesses ‘of’ a town—men with special privileges distinct from mere ‘indwellers' or residents—are included in a separate category. Not all craftsmen and tradesmen were town‐dwellers, and representatives of other categories also worked in towns, as will be seen later while discussing the geography of escheats. The social and occupational distribution of donations of escheats corresponds approximately with that of the population at large.115 In lowland Scotland at the end of the seventeenth century up to a quarter of the population were craftsmen or tradesmen and a tenth were servants; roughly 2 per cent were landowners; the same proportion were professionals; and the rest of society was made up of farmers, labourers, and cottars. Table 2 shows that landowners and professionals are over‐represented, whereas farmers, labourers, and servants are under‐represented (the unknown category probably comprised mostly these); those in non‐agricultural manual occupations are found (p.50)

Table 2 Status of Escheated Suicides (both Sexes) in Scotland, 1550–1764

Status

N

% known

farmer (‘in’)

179

55

craft/trade

46

14

burgess

41

13

landowner (‘of’)

23

7

labourer/servant

23

7

professional

14

4

unknown

22

Total

348

100

as commonly as they were in the population as a whole, though it will become clear later that town‐dwellers were heavily over‐represented. Put together, nearly a third of escheated suicides of known occupation or status comprised men and women who made a living providing goods and services.

Statistics can also be derived about sex and marital status. Some 81 individuals were female and 266 male, making the sex ratio of males per 100 females among single suicides 328.116 Among females it is usually possible to discover marital status. Single females include ‘daughter of’ (ten or 13 per cent), those designated ‘spouse’ comprised thirty‐five or 48 per cent, and widows made up the remaining twenty‐eight (38 per cent) of the seventy‐three whose status is known. Other than the attribution ‘son of’ (suggesting young and unmarried), it is only possible to determine male marital status from additional documents (which would introduce biases) or in the cases where widows and/or children were the donatories. Ever‐married men made up 40 per cent of all males.

A broad‐brush comparison of compositions with wage rates suggests that sums levied were approximately related to the wealth of occupational or status groups. An Edinburgh building craftsman earned approximately 25/‐ for a week of work in the 1580s and 1590s, 50/‐ in the 1620s and 1630s, and an Edinburgh labourer made roughly 10/‐ and 20/‐ for a week of work in the two time periods.117 The (p.51) mean and median compositions add up to two or three months' wages. However, payments were more likely associated (among other things) with net assets than with earning power. Determining what proportion (if any) was applied when assessing compositions is difficult because of document survival and inclusiveness. Probate or ‘confirmation’ documents have been located for only a handful of escheated self‐murderers, though these show that suicide did not automatically invalidate capacity to make a will or ‘testament testamentar’.118 Nor did it stop a family from gaining confirmation by a ‘testament dative’, where a person died intestate.119 In Scots testamentary law, heirs or administrators could gain title to all movable assets by proving their claim to any of them, meaning that the proportion taken as composition will be over‐stated.120

As well as giving an indication of movable wealth, testamentary documents usually record the ‘quot’ (confirmation fee). The jurist Balfour suggested that this was normally 5 per cent of the ‘free gear’ (net assets, though actually payable from the ‘dead's part’ or fraction which could normally be bequeathed by testament); a fixed sum was also common practice.121 For example, Jonet Hamilton, sometime spouse to John Plenderleith, merchant burgess of Edinburgh, subscribed her own will on 12 February 1625, died in March, and her testament was registered on 13 December of that year.122 Her husband killed himself in 1627, but not before giving up her inventory.123 Their joint assets included £224 13s 4d in livestock, and debts owing to them of £1,029; they in turn owed £700 6s 8d. No children are mentioned, and Jonet gave her half of the 700 merks of ‘free gear’ to her spouse. Assuming he had not squandered all of his wife's substance and his own in the meantime, his nephew, Patrick Plenderleith, got a bargain when he paid a composition of £15. The quot was more than this. In the few cases that can be documented, both quot and composition were between 1 per cent and 5 per cent.124 Escheating was comparable with confirmation, both in amounts exacted and in its function of showing a claim.

These few figures indicate that patrimonial forfeiture was less detrimental to survivors than might at first be assumed. The reason is partly because some assets were excluded at law and partly because of discretion in the way mulcts were applied. First of all, forfeiture only affected that part normally disposable by (p.52) the suicide, to which family had no automatic entitlement.125 Cases that were disputed elicited statements of practice. For example, Catherine Robertsoun, alias Lathanzie, spouse to David Peirsoun, mealmaker in Leven (Fife), hanged herself on 11 April 1600. Peirsoun refused to hand over the goods, and the donatory pursued him before the Court of Session, where the prosecutor explicitly stated that the crown was entitled to half of her goods, because she had no surviving children.126 Where relevant, ‘heirship goods' (the best of the movables claimed by an heir to stock a farm) may also have been excluded.127 It would further appear that the ‘fisc’ (the sovereign's public purse) did not take into account sums due to lawful creditors who had done ‘diligence’ before the escheat (brought process of pursuit against a debtor's person or assets for recovery of debt).128 Even when forfeit, the dead's part, or any fraction thereof, could be donated back. In 1607 the magistrates of Edinburgh granted to Alison Nilsoun and John and Janet Henrysoun, respectively the widow and children of George Henrysoun, cordiner burgess, ‘convict before thame the [date blank] for devouring of him self whereof the twa part to the said bayrnis and the third part of the said esheitt guids to his said spous'. For receiving their share of the movable goods of George Henrysoun, his survivors paid the modest sum of £3 to the town coffers.129

In certain cases the sum paid by a donatory was not just low but notional, bearing no imaginable resemblance to forfeitable assets but resembling ‘an arbitrary if modest tax’.130 Where these involve the well‐documented upper echelons of society, both the ‘pricing’ and motivation, and the social and political priorities of the crown become clearer. For example, when Robert Kerr, earl of Lothian, cut his own throat, Sir Robert Kerr of Ancrum, a gentleman of the bedchamber and one of the curators of Lady Anna Kerr, the earl's daughter, paid a mere £40 for the gift of his goods ‘in respect of his majesties letter’.131 This was part of a financial rescue package James VI had put together to help out the dead earl's family after the king had sent the parties to the Privy Council to try to unravel their ‘intricate and obscure’ accounts and controversies. Among other things, James leant on the Kerrs of Jedburgh not to use their legal rights to seize Lothian's lands if debts due to them were not paid, for he recognized that the (p.53) fortunes of the families had become inextricably linked.132 Recently elevated, the Kerr earls of Roxburgh and Lothian were vital to James' political programme in south‐east Scotland and could not be allowed to fail.

Granting the donation to Kerr of Ancrum involved an element of sacrifice as, arguably, do all gifts. In this instance the crown gave up a substantial movable estate. Yet this particular donation was not just an attempt to ‘pay’ Ancrum. On a continuum between gifts and sales, donations like this were much closer to presents given as part of a scheme of social and political engineering. The king sacrificed immediate economic advantage to both present and future familial and political stability. Giving added to his store of credit as a patron, conferring recognition of his standing and a confirmation of his honour. The value of the composition was largely irrelevant to a transaction that expressed a personal bond of loyalty and created a shared nexus of responsibility within an embodied rather than a bureaucratized form of authority.

1.4 DONATIONS OF FORFEITURES: GIFTS, SERVICE, AND THE VALUE OF GENEROSITY IN SOCIAL AND POLITICAL LIFE

The reason for the fiscal marginality of donations lies in their being called ‘gifts', for the indirect political, social, and moral benefit derived by the donor was much greater than the direct financial gain. Donations were granted not because the crown was desperate for cash, but because it was asked for, and wanted to demonstrate good lordship by servicing gift relationships in a society where such ‘transactions' were worth more to the donor than money. Donations were bargains struck in a marketplace or theatre of patronage and clientage, using goodwill as a currency. As Seneca put it in De beneficiis: ‘benefit cannot possibly be touched by the hand; its province is in the mind’.133 Pierre Bourdieu expresses this as symbolic exchange: ‘fake circulation of fake coin’.134 Gifts were transaction tokens that had to be kept in motion, for it was the giving and receiving that created and enhanced ‘value’, rather than static accumulation of wealth in a capitalist sense.135

Central to the functioning of ‘the good‐faith economy’ was the rhetorical misrepresentation of self‐serving transactions as disinterested acts of beneficence driven by personal, affective ties between donor and recipient. For Bourdieu (p.54) this represents ‘the social alchemy through which an interested relationship is transmuted into a disinterested, gratuitous relationship, overt domination into . . . legitimate authority’.136 The rhetoric was personal and distanced from the grubby nexus of money, transactions taking the form of gesture and ritual more than commerce. Making money was an incidental part of generating currency for gift transactions. Of course, gifting escheats was not wholly redistributive, since money was often extracted, but such exactions were more important as tokens. Crown policies make little financial sense—and indeed often appear to go against its stated and evident desire for money. They only ‘add up’ when understood in the symbolic and integrative context of a gift society where transactions augmented authority rather than filled coffers. Some little cash was released, but the main benefit was in the enhancement of personal value through social exchange.137 Wealth was immaterial, capital symbolic.

The crown became more fiscally active from the 1580s, but gifting escheats was less part of a drive to raise revenue than to enhance authority. As John Cramsie has written, ‘crown finance [was] a highly political enterprise’: a very social one too.138 Forfeitures were not simply an open‐market commodity like a bond or a tax farm, and two central elements of the gift distinguish it from the flat equivalence of the market or the hierarchical aspect of the state: it involves personal ties and it is contextually variable. The calculative component was more complex than simple financial gain, for donations also contained components of sociability, morality, cooperation, and reciprocity, in what Jacques Godbout (paraphrasing French anthropologist Marcel Mauss) calls ‘a tangled hierarchy’.139 In early modern terms, they blended notions of loyalty, friendship, appreciation, and selfless dedication. Like all early modern transactions, they were multi‐faceted and multi‐dimensional.140

The symbolic importance of the gift is best illustrated in donations to widows, preference for whom was acknowledged by manuals of legal and administrative practice. In his early eighteenth‐century text on the working of Exchequer, Baron Clerk stated: ‘where there is a poor relict unprovided for, and who has a just right to claim such a Gift, preferable to all others', the court of Exchequer would act on her behalf. He added: ‘when relicts exist, nothing can be more just than that they should be assisted by the Court, in order to procure some small entertainment for their lives with the least expence’.141 Clerk wrote at a (p.55) time when discretion had all but ended. However, an explicit statement of the same principle in much earlier practice comes in the case of James Ramsay, who hanged himself at the beginning of 1587. His escheat was gifted to his widow, Bessie Mothrie, ‘ane pure [poor] woman having thrie fatherless bairnis [children] of the said umquill spous and als grit [great] with bairne to him sua that now gif the escheat of hir husband's be takin fra hir and thame scho and thei wilbe put to extreme beggertie quhilk his majestie is maist laith it sould be’.142 The king and his Exchequer were clearly aware of the implications of handing property and governance over to an administrator and, as with remissions and pardons, investigated the social and political propriety of the grant in case it had been ‘obtained by concealing the truth, or expressing a falshood’.143 Gifts that ‘passed the seals' had been vetted. The crown and its officials had to be careful not to create durable wounds in the public body by unfair or ill‐judged donations that would incite families to spurn royal justice in favour of private accommodations. Their solutions had to be tailored to what could be achieved on the ground, and in that sense central intervention was designed to facilitate local settlement.

Because escheats do not always state the relationship of the donatory to the deceased, there is a risk of exaggerating the distance between the two and thus the extent of open‐market disposals. For example, the forfeiture of James Cowstoun, commissar clerk of Stirling, who ‘did wilfullie and wittinglie kill and drowne himselff’ early in 1639, went to James Nairne, merchant burgess of Edinburgh for 40/‐.144 Nairne looks like an opportunist until we read in Stirling Burgh Register of Deeds for December 1640 five decreets against Robert Cowstoun, James' son and heir, for large sums on bonds entered into by his late father between 1636 and 1639.145 The first decreet concerns a debt of £2,400 due to Nairne and a further £600 owing other creditors in the remaining four, all with interest overdue. While the connection is not immediately obvious, Nairne got the escheat by virtue of being the principal creditor. Escheat for suicide in Scotland was meant to protect survivors or ‘creditors', widely conceived to include the family.

One category of donatory that was neither kin nor creditor was crown servants. As noted earlier, it is conventionally assumed that donations to these men were a way of rewarding them without the king having to use hard‐won cash. Yet in the absence of extensive formal bureaucracies, the use of officials or royal servants served other ends. A gift to a royal servant was more than simply a reward, as the crown had expectations about the administration of any escheat.146 In cases (p.56) where an estate was disputed or where fair play could not be guaranteed, a well‐connected man could ensure equitable treatment of family and other creditors. Any financial gain the donatory got from an escheat rewarded him partly for services already rendered, but the gift itself was a task with responsibilities that conferred its own reward. In the case of royal employees, gifting reinforced or paralleled, rather than substituted for conventional payments, the value being not so much economic as symbolic to both parties.147 One might compare donations of escheats with gifts of pensions and ‘fealls' (fees), which look more like simple payments, but which were paid irregularly if at all: it was the act of giving that made them valuable. Loyalty and efficiency were rewarded by a donation and the servant showed his worth by handling it effectively. He was bound more firmly by gratitude, for giving conferred honour, while also invoking the obligation to serve.

Royal servants comprised 7 per cent of donatories where status or relationship can be discovered. All date to James VI's majority in Scotland except for two grants in 1556 and 1575, and only three were made to household men between 1603 and 1682: two (1609, 1624) were kinsmen of the deceased and the other his landlord (1637).148 The recipients ranged from ‘laquays' and messengers to cooks and valets. Such gifts were far from random, for the king's body servants had political significance because of their proximity to his person.149 Gifts helped indicate which servants were trusted and thus in particular favour.150 There was a time in the late 1590s when a flurry of gifts passed to some of the queen's close servants.151

Despite their apparently menial titles, the king's men were well born and well connected, occupying senior positions in the household, eating at the table of the master of the household or that of the gentlemen servants, and possessing honour in their own right, as well as that conferred by working for the king. All were long‐serving members of the royal establishment.152 Among recipients, John Stewart, a valet to the king's chamber and son of the constable of Stirling Castle, served for twenty‐nine years; Alexander Young of Eastfield was usher of the inner door of the king's chamber for twenty‐eight years; John Livingston of Abercorn was master stabler for sixeen years and James Inglis master tailor for (p.57) thirty‐two years.153 The crown's servants did not always get escheats cheaply. James Inglis' two gifts both involved compositions in the top quartile. The median composition for royal servants and officials was considerably above that for other recipients, but they also dealt with some of the richer, more important, and more problematic suicides. This is also true of giving to cadets or servants of the wealthy and powerful (there were thirteen in each category), which was a way of delegating responsibility and ordering relationships within a very personal system of lordship. In the case of cadets, administering a suicide's estate was a lesson in how to create authority by the sensitive use of power: in short, how to be a good lord. Applying for a signature on their behalf was a way of advertising their potential as clients and patrons in their own right.

Choosing a cadet or a royal servant was no more random than any other gift of escheat and no more likely to impoverish claimants to the estate. James Inglis is an example. One of his gifts was the forfeiture of Sibilla Dewar, who drowned herself one night in Edinburgh's Nor Loch. Her estate was contested by, among others, an estranged husband who, nine years before her death, had been interdicted from approaching her or interfering in her affairs (‘sall nocht cum within the dwelling hous of Sibilla Dewar, his spous, without licence of the toun, nor yitt molest or trubill hir in ony time heirafter in hir body or guids, be word or deid’).154 Inglis was the first administrator of her assets, but a week after his grant was registered her estate passed to her children.155 Delegating to royal servants was a way of cutting through competing interests and ensuring fair play.

Some escheats may have been channelled initially to a favoured group around the royal court before being re‐distributed to those who would eventually handle them.156 Occasionally a recipient is termed ‘principal donatory’, suggesting there were others.157 In these cases the initial donatory was either a preferred creditor or an administrator who dealt with the most important debts or the most immediately evident assets, leaving the remaining estate to be encompassed by another person, using the same type of procedure or another means such as testamentary confirmation.158 English medieval historian Scott Waugh calls this ‘secondary distribution’.159 It offered principals a chance to profit, but it (p.58) did not necessarily harm families or other creditors and was meant to make their task easier; subsequent donatories had the right to call their predecessors to account and crown or Exchequer ultimately oversaw the process.160 There are tantalizing signs that applicants for signatures may have asked for, or even nominated, a person with connections to facilitate initial decision making, in the same way as magistrates, lairds, and great lords were selected as arbiters.161 Just as a donation of escheat was not a pure commodity transaction, because the gift carried with it royal authority and retained a reversionary interest in ensuring a just settlement, so a secondary donation or further translation was not a simple alienation because it had as its baggage the personality of a courtier, servant, official, or client of the crown.162 Considering the advantages that went with the assignment of forfeitures, it is far from certain that they were materially detrimental to survivors: in most cases the intention was the reverse.

A side effect of secondary donation may have been to spread perquisites. However, donatories who felt unable to handle the estate could only renounce the gift if they had not already started to handle or ‘intromit’ with any of the goods, limiting the opportunities to ‘cherry‐pick’ assets.163 Secondary donation was designed to tune the administration of a suicide's affairs by balancing competing claims and reinforcing those held to be just. The intervention of privileged courtiers (and other patrons) eased the problems of rival interests at a troubled time for survivors. As will become apparent in 1.8, people affected materially by a suicide sometimes chaffed against the structure imposed by the law of forfeiture, but the procedures cannot have worked without a measure of cooperation, and without government being well informed about claims to an estate. The functioning of these mechanisms suggests not systematic dislike of forfeiture, but an understanding and acceptance of the need for force majeure in certain circumstances. They show, not a fundamental opposition between ruler and ruled, but an awareness of the need to maintain a framework of compromise and collaboration in a polity where the monarch and the common good stood or fell together.

Crown and Exchequer (and the Scottish Privy Council until it was abolished in 1708) were aware that the servants they used were experienced, loyal, and (p.59) malleable, even if they were not always fiscal officials per se. Royal servants had ‘job descriptions', but they worked within an open‐ended understanding of service, which meant they could legitimately be asked to do anything not incompatible with their honour.164 Being the instruments of royal command added to their influence and prestige as much as it put money in their pockets, for donations were conceived as an extension of personal government rather than a means of personal enrichment. Of course, some servants hardly look suitable administrators—the king's clockmaker or cook, for example. Yet even they were personally tied to the king and were backed by royal authority. Proximity meant they were trusted and useful in a political system where personal links reinforced, rather than detracted from, administrative effectiveness. These men were ‘fit for purpose’ because the skills required to administer an escheat were sensitivity, common sense financial ability, an awareness of human frailty, and the confidence to make decisions about distributing assets that were bound to be unpopular with one or more interested parties. Where royal servants were recipients, the donation was effectively part of household government, even if in reality decisions were made on a case‐by‐case basis, rather than following any consistent policy. As Ried Zulager has argued, the contributions of lawyers to the administration of James VI's Scotland may have been over‐emphasized, while those of his courtiers have been misunderstood, downplayed, or ignored.165

The importance of royal servants as recipients of donations extends much further than simple payment. Patrons and clients initiated and continued relationships by conferring benefits and favours. However, hope of reward might be vague, for ‘gift‐giving was supposed to be a gracious, courteous, or friendly transaction, in which the obligation for return was not made explicit and gratitude was expected, but it was not necessarily or always an ethical register’.166 The gift relationship was sometimes ambiguous, and the precise implementation of expectations was never certain. This does not mean that there were no norms. All parties recognized the importance of demonstrating appreciation and the unacceptability of ingratitude. Placing trust and having it rewarded by compliance further strengthened the moral bond. The gratitude of a servant or client for a gift can be quickly and easily demonstrated through better service. In contrast, the appreciation of a poor widow or orphaned children had little immediate social or political value to a monarch. Instead it had great worth as an expression of the moral basis of social and political bonds more generally.167 Founded on ideas of charity and morality, gratitude was a social cement, for until a beneficiary has reciprocated, he or she must express gratitude.168 In the case of the weak and poor, that obligation was open ended. (p.60)

The system of reward was equally imprecise—perhaps even intangible—for both parties. The donatory acquired title and perhaps preferential access to unspecified assets and liabilities. The crown acted in a way that often achieved little (sometimes no) immediate tangible return, but a clear indirect benefit from an enhanced store of credit among those it ruled. The gift, as Mauss noted, was not disinterested, but the ‘interest’ was in the obligations it conferred rather than in the cash exchanged.169 Donations transferred not ‘property’, but ‘ownership’ or stewardship or claim, in the same way that tacks or land leases in Scotland were ‘merely accounted a right of occupancy, and not of property’.170 Gifts of escheats are best conceived, not as simple exploitation of survivors, but as part of an integrative and above all a personal system which was parallel to both market exchange and coercion. In their heyday, donations were not merely ‘personalized’ instruments, serving an impersonal function, but came out of and articulated personal ties.171 Avner Offer terms this ‘an economy of regard’ and, in the model he uses, the asymmetric gift relations embodied in escheats for suicide have an ‘authority ranking’.172

In at least some of its donations the crown conformed to deep‐rooted traditions of charity and pity, reasserting its legitimacy as the leader of a Christian community. Others that seem to take the escheat out of the family can also be interpreted as an attempt to recreate a harmonious and unified local community under the crown. The early modern Scottish state was based on juxtaposition between the king as magnanimous giver and his administrative apparatus as the constraining taker. Though not subject to regular royal taxation before the late sixteenth century, Scottish people at all levels were comfortable with the idea that the crown could take things from them—money, goods, lands, and even their lives. Yet in the case of suicides, the act of giving was more politically and socially significant than that of taking. The placement of forfeitures shows the discretionary use of power by the Scottish crown and Exchequer, a prudence that enhanced its authority more than mere expropriation could ever do. Benevolence was a duty for any good lord, its exercise (albeit guided by advice, counsel, and supplication) announcing and reinforcing his authority as the bestower of God's grace.173 So too was beneficence. By focusing on the creation and maintenance of social solidarity, this gift relationship linked morality, justice, and charity.

The relationship was active on both sides. The suicide's family or another interested party reported the death and asked for the gift of escheat, usually soon (p.61) after death. Elapsed time between the reported date of suicide and its recording varies enormously in the 206 cases where date of death is known: from one day to nearly four years, suggesting that some donations were eagerly sought soon after death and others assumed reluctantly when other efforts to settle an estate had failed. The mean interval, heavily skewed by a few high values, is just over two months. The more representative median value is two weeks and the mode is ten days; 70 per cent of forfeitures with known death dates had been registered within one month and 81 per cent within two months.174 Again, this makes escheats similar to confirmation documents where until 1610 executors had six months to have a testament confirmed and three months thereafter—though in reality there was no limit of time.175 Only seven suicide cases exceeded one year, which was the time executors normally had to plead answer to a creditor that debts were irrecoverable.176 The often short time span between suicide and registration of escheat suggests a degree of collusion or consensus in an age with few official investigators or reporters and with relatively slow communications. An example of an official who might have been involved is the bishop's procurator‐fiscal who, in the periods 1609–38 and 1662–89 when episcopacy was formally recognized, was charged with ensuring that testaments were confirmed and inventories lodged so that the quot could be assessed. He made a circuit through the Commissariat only twice a year.177

The motivation behind an approach to the crown is readily inferred, if hard to verify. In the fifteenth century a judicial committee, the Lords of Council, oversaw a ‘common law’ (the king's law that applied to everyone unless he said otherwise), and over time a variety of measures made local lords more responsible for the crimes of those on their land and created mechanisms to allow victims to go over the heads of partial or negligent lords.178 Under James VI and Charles I, local lordship was further weakened and the power of the crown enhanced by bureaucratization and centralization.179 Yet the Scottish state lacked a centrally supervised criminal court system until the late seventeenth century, and the drive towards legal centralization came principally from demand for civil remedies, the sixteenth‐century Court of Session expanding business much more than the contemporary Court of Justiciary. This could mean dealing with matters in Edinburgh, but it could also involve reaching out into the localities. Something in the nature of a crime (suicide) gave an opportunity for the crown's authority to be felt locally through the resolution of civil claims. Because escheat required (p.62) an application, centralization was driven as much from the locality as the centre. By ‘adopting and appropriating’ its authority, applicants brought the crown into local society.180

This is not to say that government was passive, for applicants had to be informed about, and possibly encouraged to use, this mechanism. Nor is it to portray the monarch as a soft touch. All forms of judicial discretion had an element of subjectivity, which could work for and against the offender. As Cynthia Herrup argues in her study of sixteenth‐ and seventeenth‐century English pardons, John Beattie in analysing pardons for English capital offences, and Robert Shoemaker in discussing the levels of fines imposed for petty offences in London and Middlesex, many evident factors came into play in sentencing and pardoning. These included the gravity of the offence and the sex and status of the offender, but also a variety of less easily identifiable considerations such as the defendant's character, ability to pay, and the strength of the evidence that convicted him or her.181 Decision‐makers invited applicants and observers to accept that what influenced granting was not the law or even the offence itself, but the personal virtues of the parties concerned. Seen in this light, those charged low proportional compensations had a good negotiating position; those whose survivors were heavily taxed paid for their own or the dead person's lack of social or moral capital.

The crown could grant to kin, but it was not obliged to if this frustrated either the needs of justice or the interests of the Exchequer, which ‘may bestow such gifts to poor and indigent people, and perhaps to those to whom the King for some cause or other happens to be debitor’.182 The presence of close kin in all the cases of high compositions demonstrates this and further suggests that the balance was somehow against the donatory. Janet Fockart's 1,000 merk composition is an example. A wealthy woman owed money by many prominent people, she also received payments from the Mint in the year of her husband's suicide.183 She was well‐connected, but to financial networks rather than to social or political ones, and indeed her very success and sharp business sense may have counted against her in the calculation of mercy and charity. Thomas Dobbie too was an establishment figure whose treatment had to be strict: he was (p.63) a messenger, and his brother Richard had been successively bailie and treasurer of Edinburgh in the two years before he died.184 Charging a very high composition was insulting for it implied the donator was not truly part of the moral universe of the gift.

Escheats could be bid for like any desirable asset. After Margaret Kirkwood hanged herself while under investigation for witchcraft in 1677, ‘being wealthie, their ware severalls who put in for the gift of hir escheat’.185 This was not necessarily an opportunist free‐for‐all since wealthy people had more creditors anxious for control of the administration.186 Exchequer sometimes aggressively managed the sale of certain other casualties or accidents like wardship and non‐entry or escheats for other types of crime, insisting that income generation be prioritized in 1587 and 1596.187 The king could put on a hard face and, even when one hand gave mercifully, the other might grasp avariciously. In 1592 James VI returned the forfeited estate of the executed witch Euphan M'Calzeane to her children, claiming to be ‘touched in honour and conscience’ to restore the children. However, they had to obtain an act of Parliament to reverse some of the forfeiture imposed when their mother was convicted in 1591—and pay a composition of 5,000 merks for the privilege.188 Forfeiture of lands too was an important tool in enhancing royal power: the acquisition of Orkney and Shetland (1468), the earldom of Ross (1476) and the Lordship of the Isles (1493) all contributed to the making of modern Scotland and all were achieved by forfeiture.

1.5 POLITICS AND THE LAW: THE RISE AND FALL OF FORFEITURE, C.1550–1650

Looked at over time, the rise of escheated suicides broadly follows the increase in the governance of Scotland (and its effectiveness) under James VI documented by Scottish political historians.189 Its rise and decline shadow measures such as the incidence of feuding, though the recorded granting of escheats endured longer; the chronology also follows the rise and decline in litigation noted by British (p.64) legal historians.190 There were few recorded escheats of any kind until the 1570s. Early examples of crown involvement were confined to landowners and were an extension of wardship rather than the more generalized social craftsmanship of James VI's reign. Not included in the statistical population, a rare example of direct central involvement comes from late in the reign of James V. It involved the estate of John Houston of Houston (Renfrews.), who killed himself in 1541. His widow paid £400 for his escheat, but various entries in the accounts of the Lord High Treasurer make it clear that some assets were controlled by the crown, which made selective disbursements to members of his family and others. They included rectifying irregular dealings, using a proportion of the composition, perhaps explaining why it was so high. ‘Item, gevin to Agnes Houstoun, syster to the laird of Houstoun, of ane parte of the compositioun of hir broderis aschaete gudis, becaus he haid intromittit with hir bairnis parte of gude and maid hir na contentatioun of the samin, jcxxxiij li. vj s. viij d.’191 This close intervention was associated with wardship of the laird's lands for his son and heir, Patrick.192 Here the king protected rather than appropriated, fulfilling normal feudal obligation and repaying a personal debt to the Houstons. When John himself was still young, his father Patrick was killed at the battle of Linlithgow in 1526, while attempting to rescue James V. Like wardship, donations of escheats created and embodied a bond between a lord who needed adherents and subordinates who needed protection.

James VI's reign saw momentous changes in Scottish government that included a steep rise in recorded escheats. In 1569 the Privy Council under regent Moray ordered the Treasurer's office ‘to mak ane roll of all escheittis disponit, and of all respectis or remissionis grantit’, and to display these promptly and regularly;193 the Exchequer was stimulated and incomes rose in the 1570s;194 Privy Council business expanded dramatically in the 1580s and 1590s; royal finances were reorganized when Exchequer became a permanent court in 1584 and all its functions flourished until 1598; Goodare believes the period 1598–1603 marked an end to disputes between officers of state and members of the royal household over the awarding of signatures and the beginning of a period of allocation by Exchequer;195 there was increasingly regular taxation at the same time;196 central law courts were more extensively resorted to in the late sixteenth century by both (p.65) ruler and ruled; after the ‘act anent removing and extinguishing of deidlie feuds' of 1598 bloodfeud declined rapidly (almost disappearing from the Lowlands by c.1640) and so too did the numbers entering into bonds of manrent.197

There were no major witch‐hunts between 1597, the years of James VI's Daemonologie, and 1628, but this period saw the zenith of escheated suicides and of the corporal punishment of self‐murderers (see 4.2).198 The peak in the 1610s may be associated with the failure of the English Great Contract in 1610, which was in turn because of the king's attachment to feudal rights.199 Historians traditionally attributed this to James' intransigent, atavistic attitude, but by surrendering rights, the king would have been abnegating part of what made him a lord. In Scotland itself, 1610 saw the amalgamation of several previously independent finance offices, and between 1615 and 1620 there was a major central initiative where crown officers toured the eastern and central shires identifying those ‘at the horn’ and seeking to get them ‘relaxed’ by paying off debt or seeking pardon or remission.200 People had to apply for gifts of escheat, but this drive is a reminder that the crown wanted subjects to use its services and employed various means to ‘advertise’ and enforce them.

Donations declined decisively from the 1620s and all but ceased by 1700. Part of the reason lay in the macro‐political arena, with the establishment of the Scottish Exchequer as a permanent administrative body in 1626 and in changing ideas of the acceptability of lordly discretion. It was not just the feud that was under attack, but judicial discretion as a whole, and in 1649 the Parliament of the Covenanters denounced and forbade compensation, remissions, and respites.201 Both developments depersonalized decision‐making in different ways and were part of the rapid change from personal, discretionary, and customary conceptions of the law to learned, predictable, and written ones in seventeenth‐century Scotland.

The Kirk had an important part to play in change, arguing vigorously from the Reformation onwards against the role of lordship in avenging wrongs. In a reference to the feud, John Knox described kinship as ‘invented by Satan to shed innocent blood’.202 That the Kirk did not succeed until the seventeenth century shows the vitality of lordship in dealing with the day‐to‐day problems of orchestrating social and economic relationships. Yet by substituting Christian brotherhood for blood, by promoting royal power under God, by causing the (p.66) great magnates to stand back from what the Kirk was doing, and by re‐creating their successors (the lairds or lesser lords) as godly magistrates, the Kirk ultimately helped to generate new social structures and fresh social values, just as it had helped substitute jury trial for duel or ordeal in the thirteenth century. It contributed to ‘modernization’ by promoting the idea that justice should come from an impersonal body (a secular or religious court) informed by a standard principle (sin and its avoidance), rather than from the manipulation of society through the workings of personal bonds. As Robert Bruce put it in a sermon of 1589, ‘Let no community of name, ally, proximity of blood, or whatever it be, move you to pervert justice, but let every man be answerable according to the merit of his cause’.203 Throughout the seventeenth century, Presbyters worked to supersede kinship, coerce community, and enforce neighbourly harmony, gradually acquiring legitimacy, and ultimately providing those in conflict with an alternative to baronial or even royal courts.204 Through schooling too the Kirk tried to create new expectations about how godly citizens should behave, moulding a more peaceful society based on self‐control, mutual respect, and responsibility.205 New ideas of individual accountability changed the way people chose to deal with social divisions and personal problems.

Developments in the law of debt and credit also created new ways of ordering relationships. Like escheat for debt, early ‘insolvency’ or bankruptcy law dealt primarily with the social implications of inability or unwillingness to satisfy debts in full.206 It was based on the prevalent ideas that individual misfortune had implications for all members of the person's social and economic network, and that insolvency was an issue of character. Seventeenth‐century bankrupts had to wear distinctive yellow clothes, and even in the mid‐eighteenth century the section on insolvency in Bankton's Institute is headed ‘Circumvention and Fraud’.207 From the Middle Ages onwards the main priority of insolvency in law and practice was the public interest of managing debt, rather than the satisfaction of individual creditors, who had to rely on their own ‘diligence’ in both senses of the word (being alert to their own interests and using legal processes to attach property) when securing movable estate. Conducting an administration after death, or of a living insolvent, showed the executor or creditor to be a part of a (p.67)

                      Forfeiture in Scotland

Figure 1 Distribution by decade of escheated suicides in Scotland, 1550–1759

collective: someone entitled to make moral claims as well as being burdened with financial and ethical responsibilities to ensure the vitality and continuity of their community. There was self‐interest in applications for escheats, but donations also authorized, advertised, and enforced responsibility.

Prior to the Reformation, creditors of either the solvent or insolvent had two possibilities that could be used in conjunction. One was to use diligence, termed a ‘writ of execution’ at English law. The other was an ecclesiastical compulsitor given teeth by ‘letters of cursing’ (maledictory excommunication on the grounds that the debtor had broken an oath to pay), which allowed the creditor to invoke secular power to enforce payment; the result was sometimes known as being ‘at goddis horn’.208 People complained that, after the Reformation, they could get ‘na cursing’, for the Kirk set its face against certain types of oath which were seen either as trivializing the separation of man from God or as breaches of Christian charity.209 After mid‐century, registration was the preferred means of enforcement. Upon default, registration took the effect of a court decree, with (p.68) sanctions specific to the court where it had taken place—usually ‘poinding’ or attachment (seizure) of assets belonging to the debtor that were held by him, the creditor or a third party (the last also possible by ‘arrestment’). These steps, which together constituted ‘diligence’, were necessary because there was no other mechanism for enforcing civil court decisions.

The two decades immediately after c.1562 saw a period of flux in all sorts of legal processes, but debt and credit procedures in post‐Reformation Scotland were resolved far more rapidly than in England. A creditor needed the authority of a court to proceed against a debtor, and one way of facilitating was to register the debtor's acknowledgement that the sum was due. Registration in the books of Council and Session meant that sanctions included horning or outlawry. An Act of Sederunt of 1582 (confirmed by 1584 c. 15) made it easier for creditors to enforce ‘letters of horning’, a process simplified to a single charge compared with the pre‐Reformation ‘letters of four forms'. When linked to poinding, letters of horning allowed simultaneous denunciation and seizure.210 The 1584 statute mentions ‘simulat and fals assignationis of thair movable guidis' by malicious fraudsters. Legislation in 1621 (c. 18) and 1696 (c. 5) dealt with two serious problems facing all creditors.211 The first was how to counter (alleged) gratuitous alienations made to ‘Wives, Children, Kinsmen, alleyes, and other confident[ial] and interposed persons: without any true, lawful, or necessary cause: and without any just or true price interveining in their said bargaines'.212

However mammonic debt and credit might appear, legislation came out of a religious concern for restitution and recompense as governors and lawyers sought to make the state a more active partner within the Christian body. The 1621 Act was informed by the learned norms of canon law which pervaded post‐Reformation Scottish law, its avowed purpose as much moral as financial. Its preamble recites how it arose from

The grievous and just complaints of many of his majesties good subjectes, that the fraud, malice, and falshood of a number of Divours and Bankrupts, is become so frequent, and avowed, and hath already taken such progresse, to the over‐throw of many honest mens fortunes, and estates, that it is likely to dissolve, trust, commerce and faithful dealing among Subjects: Whereupon must ensue the ruine of the whole Estate, if the godlesse deceites of those be not prevented and remedied.213

(p.69) The other central problem of insolvency law was how to prevent preferential treatment of certain creditors. An Act of Sederunt of 28 February 1662 reduced the free‐for‐all of individual creditors competing with others in using diligence. Prior to this the creditor getting a gift had an advantage to go with his or her liability for debts because it could be used to apply for a decreet of declarator: ‘prior tempore potior jure’.214 The act gave all creditors six months to use diligence against an executor or similar, removing the advantage of those who acted more quickly. In the same spirit, acts of Exchequer of 1661 and 1663 made donatories of escheats routinely give a ‘backbond’ to Exchequer, agreeing to be accountable to the other creditors for payment.215

The 1696 act rendered any preference granted to a debtor within sixty days prior to ‘notour’ bankruptcy, fraudulent and ineffective.216 Together with other legislation in 1661 (c. 344) and 1681 (c. 83), this simplified settlement of an estate.217 The same spirit of facilitating realization of assets by creditors is shown in an act of 1669 (c. 40) that excused executor‐creditors, widows, and the poor from paying a quot to the Commissary Court for confirmation of an estate.218 External intervention was reduced in other arenas too. Prior to 1690 each of the twenty‐two Commissary Courts was keen to ensure that testaments were confirmed in toto and a procurator‐fiscal could apply himself if there were no kin or they were reluctant to seek confirmation. An act of 1690 (c. 56) stopped commissaries enforcing confirmation, and partial confirmation to establish title to a particular asset became the norm, though the interests of creditors were protected.219 Thus changes in the law of obligations reduced the need for intervention by lords (broadly construed), and increasingly left settlement up to the most directly interested parties. In securing settlement, Scottish creditors had important advantages over English. For example, debtors could not ‘keep house’—that is, be immune from arrest for debt by locking their front door—and legal officers could go anywhere except recognized sanctuaries to seize those denounced as rebels; Scots law also made no distinction between specialty and simple contract (see 2.2).220 An act of 1748 abolishing escheat for civil debt (20 Geo. II c. 50) further helped equalize the position of creditors. Thereafter escheat was only incurred by bastards dying without issue, and through conviction for capital crime or certain other types of statutory offence. (p.70) The act 33 & 34 Vict. c. 23 did not apply to Scotland and criminal forfeiture was not abolished there until 1949.221

The last recorded escheat for suicide was in 1764, yet the whole procedure of single (and liferent) escheat had been diminishing in importance for a century.222 Indeed it is hard to escape the conclusion that the law of debt and credit was resolved quite quickly in the 1570s and 1580s, after which Commissary Courts (established in 1563 as successors to the courts of the bishop's officials) became the recognized place to go for an executor who wanted to collect small debts; Sheriff Courts covered larger ones.223 In contrast with England, Scotland's church courts had continued to deal with testamentary and other debt actions right up to the 1550s.224 The easy transformation at the Reformation is a sign of the flexibility and adaptability of Scots law. From the late Middle Ages it had few actions, each with wide application, where England's legal system was more rigidly configured around numerous forms of process, each with rather precise scope.225

Yet it remained difficult to enforce rights to assets, and the most important subsequent evolution in the law of obligations came after escheat had all but ceased to be used. This was in a statute of 1772 establishing ‘sequestration’. By taking over assets to be divided among creditors, this superseded most personal diligence.226 Only then was the entire universe of the debtor's estate taken into account in the formal settlement, removing the need to resort to the rhetoric of mutuality or the ‘first come first served’ race among creditors.227 Only from 1808 (48 Geo. III c. 149) were executors obliged to give up a full inventory on oath and have the whole movable estate confirmed. Nineteenth‐century legal texts continued to mention forfeiture. The short passage on suicide in the 1838 edition of Bell's Dictionary was still included in that of 1890, suggesting that the law was still current, but by the early twentieth century there is no reference to suicide in legal texts and the law would appear to have fallen into desuetude.228 (p.71)

1.6 THE POLITICAL GEOGRAPHY OF SUICIDE: CORRECTING LORDSHIP IN TOWN AND COUNTRY

At its zenith, escheat for suicide was not a substitute for something else, but a parallel way of settling an estate that involved the weight of lordship, and it was the undermining of lordly aid that instigated change. Social relationships and political priorities also underlay its geography, which reflects variations not in suicide, but in a means of dealing with its consequences. It has been possible to identify suicides' residence in 304 cases. Centrally recorded escheats are concentrated in the Lowlands and Southern Uplands; none relate to the Highlands and Islands, and for the north‐east all lie in the coastal lowlands. It may be that the ‘unknown’ category in Table 3 conceals escheats from the north‐west, but neither the place name nor surname evidence supports this.229 Problems with fixing location usually lie in deciding between more than one possible location in the central and north‐east Lowlands and the Southern Uplands.

The regional pattern of escheated suicide sits well with the concerns of governance. Judged by indices such as feuding, the crown's main political problems in the late sixteenth and early seventeenth century lay not with the Highlands, but with the central Lowlands, the Borders and the south‐west.230 These were regions which generally lacked large magnates and where politics and government depended on a combination of lesser local landowners and more

Table 3 Geographical Distribution of Escheated Suicides in Scotland, 1550–1764

Region

N

% known

Lothians

76

25

west centrala

57

19

north eastb

44

14

Fifec

47

15

Perthshire

33

11

Borders

30

10

south west

17

9

unknown

44

Total

348

100

(a) Ayrshire, Glasgow, Dumbartonshire, Renfrewshire, Stirlingshire.

(b) Aberdeenshire, Forarshire, Banffshire, Nairn, Inverness, Ross, Sutherland.

(c) including Kincardine and Clackmannan.

(p.72) major ones whose power base was elsewhere, but who held land in the area. Notably in the Lothians, Fife and the north‐east litoral, a socio‐political balance of this kind made royal intervention both necessary and possible. Elsewhere (and much more than was the case in England) an appropriate lord's court (or rather a king's court in private hands) was available to settle disputes, backed up by landowners with compact and sometimes extensive estates, who exerted a powerful hold on the lives of their dependants.

Big, resident landowners of the kind whom James VI liked were able to create order in the space they controlled and the crown could deal directly with them. Such lords could, and did, involve themselves in the lives of their people, manipulating, defending and punishing—but doing so within a framework of expectations that they would act responsibly. The crown drew on, or shared, this existing local authority to ensure ‘good rule’. Lesser landowners did not have the same power, and the need for governance from the centre was greater, with the crown performing the role of good lord. Individual lords were a more vital link in the chain of Scottish government than was the case in contemporary England, and any shortcoming in their authority was as important as their powers. As James VI put it in advice to his son, the nobility ‘must be your armes and executers of your lawes'.231 Sometimes a great owner was a poor lord, like the Earl of Atholl after 1595.232 More than half of the Perthshire escheats come from his time. In this instance the crown sided with lesser lairds as a way of reminding weak lords of what was expected, correcting injustice and bolstering ‘undermighty’ lordship, where historians more normally look for examples of curbing the ‘overmighty’ subject.233 Intervention indirectly demonstrated that loyalty to the crown should come first, for it was the ultimate guarantor of justice and had since the time of David I asserted that royal justice should take effect if the lord's failed (see 1.4).

The administration of suicide was a way of requiring local elites to become more closely involved with central government, and this explains why there are local and regional clusters of recorded suicides. One is the land of Drumelzeir in Peeblesshire, partly owned by the Tweedie family. That the locality was politically problematic to government is shown in an instrumental gift of 1607 to James Tweedie of the goods of John Dalzell and his spouse, who drowned themselves. This was linked to efforts by James VI from 1606 to tame the more lawless parts of the Borders. In this case he enlisted into the ranks of the ‘weill disposit’ one of the very people who had caused him so much trouble in earlier (p.73) decades—and who, as part of a feud with the Lindsays, was bound over to keep the peace more than once in the same year.234 Here the gift made a potential detractor from centralization into its agent.

Political and administrative factors also explain the preponderance of urban dwellers, for ninety‐seven escheated suicides had lived in towns: more than a quarter of the total.235 For this calculation it is legitimate to use the entire statistical population since problems of identifying residence relate to small rural landholdings. A quarter compares with roughly 5 per cent of the population of Scotland who were urban dwellers at the period that generated most escheats. Edinburgh, Canongate and Leith alone account for thirty forfeitures, though only three came from Glasgow.

The clear preponderance of urban escheats recalls the findings of early sociologists Durkheim and Halbwachs, who variously argued that the mobile and impersonal nature of urban society left individuals socially or personally isolated. Early modern towns certainly had high levels of population turnover, but the applicability of models based on large industrial and commercial towns of the late nineteenth and early twentieth centuries to the small, closely governed burgh communities of the late sixteenth and seventeenth century is questionable. Scottish urban dwellers are over‐represented not because towns were loosely regulated and socially disorganized, with individuals poorly assimilated into social groups around them. Instead it was thanks to the complexity of urban socio‐economic relations and the administrative layering towns contained.

For example, growing urban prosperity in the late sixteenth and early seventeenth century allowed successful merchants and artisans to lend money to a wide range of people, including nobles.236 Urban debt and credit networks permeated the realm. Social organization too was different. An act of parliament of 1491 c. 17 renewed an express prohibition against burgesses seeking a lord from outside their burgh, even if later communities like Reformation Perth had one (see 3.9).237 Without a dominant individual to enforce his vision of fairness, town dwellers were obliged to use the multiple administrative resources available to them, seeking solutions that were publicly, rather than privately, provided.238 Early modern burghs required the legitimation of royal lordship when their (p.74) governments were dependent on the raw power of oligarchy rather than the authority of mutual dependence.239 Thus the need for social engineering was greatest in the towns, and the means to achieve it by resort to government most readily available.240

However, burghs also used jurisdictional privileges to maintain and advertise civic cohesion and civic responsibility, and it is possible to see local solutions to the aftermath of suicide more easily than in the rural world. Burgh magistrates or bailies had jurisdiction over civil cases and some minor breaches of the peace (crimes too if the provost was also Sheriff); other franchise courts might also have competence over escheatable offences.241 For example, in February 1580 the burgh council of Edinburgh, ‘understanding Agnes Henrisoun, sister to umquhill Sir Eduard Henrisoun, to have put down hir self, and thairby the escheit of all hir gudes movabill and unmovabill to becum in thair handis, componis with James Henrisoun, son to the late umquhill Sir Eduard, for ten libris, quhome they maik thair cessionar and assign in and to the uplifting, craving and resauing of the samyn, quhilk soume they ordane him to pay to thair thesaurer’.242 In December 1588 the council granted the escheated goods of Thomas Symsoun, burgess, to his children, John and Christian, ordering the bailie of the quarter where Thomas lived ‘to pas and mak thame delyverance thairof and this in respect of the poverty of the said bairnis'.243 There is no mention of any composition and in neither case was a signature applied for. These examples show burgh councils using escheat to reinforce both the rhetoric and practice of civic responsibility.

The crown took no part in these cases, but having delegated escheat privileges did not stop it exerting its authority over a burgh. In August 1570 Exchequer gifted the goods of John Powry in Perth to his widow and children, but without prejudice to the burgh, which had escheat rights too.244 This superficially cautious (and probably correct) proviso was in fact a statement of authority, for Perth's privilege had come by royal charter. It was also a reminder that this corporate body had to do its part in healing a wound in its flesh. Perth was a divided community after the Reformation, and the grant affirmed both the burgh's privileged position and its need to demonstrate good governance. Acting as ultimate lord in suicide cases was a practical way of reinforcing or correcting local lords, and a symbolic means of announcing the sovereignty of the king in a devolved political system. (p.75)

Burghs like Edinburgh and Perth held judicial as well as commercial privileges from the crown, and understanding the geography of forfeiture depends on appreciating the extent of franchisal jurisdictions across the nation. Scotland was rich in these compared with England, and justice (albeit enforcing the king's law) was more devolved to proprietary jurisdictions. Until after the failed Jacobite rising of 1745–6, one feature of Scottish government and society was that some feudal lords under the crown had the right to hold courts with extensive criminal jurisdictions. Sandy Grant suggests that more than 90 per cent of Scottish parishes were wholly or partly subject to baronial powers, and that medieval Scotland was more ‘a land of franchises' than anywhere else in Europe.245 Some franchisal grants included rights to the profits of justice, including forfeitures of suicides.246 The greatest of the jurisdictions was regalian. A lord of regality was defined by the jurist Mackenzie as ‘he who has the land whereof he is proprietor or superior erected with a jurisdiction equal to the [royal] justices in criminal cases and to the Sheriff in civil causes'.247 A notable example of a regality with escheat rights was the Duke of Argyll's, one of forty‐seven such abolished in 1748; some burghs too had such rights invested in bailies of regality (twenty‐seven in 1748, the largest being Glasgow).248 Lesser jurisdictions could have escheats as a pertinent in creating baronies, and they too might be part of gifts of the profits of justice.249

As will become apparent, England had franchisal jurisdictions that touched suicides, but it was easier in Scotland than in England to exert control over the estate of a person who was forfeited. One reason is that most Scottish franchises were geographically compact (if sometimes very large), facilitating their administration. The other reason is that prior to 1748 an entitled lord of regality could command the escheat goods of a person living within his bounds, even if those effects were located elsewhere, because the maxim mobilia sequuntur personam obtained in Scots law.250 A related practice called ‘repledging’ (p.76) allowed a lord with the correct level of jurisdiction to take a criminal case away from a court where it had been initiated if the accused normally resided in that jurisdiction; the locus of the crime was irrelevant.251 Repledging was increasingly restricted from the time of James VI and virtually ineffective after 1672, but it illustrates how medieval and early modern Scots law was conceived personally.252 Associated with this was the assumption that the procurator‐fiscal investigating a death would be the one with the closest connection to its circumstances; again the place a person died or was found was irrelevant. In England the location of the body alone determined jurisdiction for a coroner's inquest.253

The absence of escheats from large tracts of the Highlands and Islands was because cases were dealt with locally by means other than applying to Exchequer for a gift. Similarly Glasgow's regality status may explain the near absence of forfeitures there, for the king's officers and the king's writ could be excluded.254 Yet the presence of subordinate and franchisal jurisdictions probably does not distort the geography of escheat to any great extent, for documented donations and declarators are rare in Sheriff, barony, and regality courts. A unique example in half a century of Aberdeenshire Sheriff Court concerns the affairs of William Craig, who hanged himself in January 1632. The Sheriff‐Depute granted a donation to William Myntie ‘for himselff and in name and behalf of Violet Patersone’, the widow, ‘as escheat and casualtie of the office of Shrefschip’. In March 1632 Myntie used the grant to pursue ten named men for debts owing to Craig.255 In the west, the Duke of Argyll's regality court could hear suits of declarator that otherwise would have gone to the Court of Session, but its records contain just three suicide escheats between 1664 and 1742.256 At the same time franchisal forfeitures sometimes enter central records. A decreet of declarator in favour of James Rentoun notes that the gift came from the lord of the regality of Dunfermline and Musselburgh, though the donation is entered (p.77) in the Register of Signatures and that of the Privy Seal.257 Thus it is unlikely that the surviving records significantly misrepresent the use of formal escheat for dealing with suicide.

1.7 INFORMAL REMEDIES AND THE INTERVENTIONS OF LORDS

An unusually detailed example of a franchisal lord investigating and trying to profit from forfeiture shows what went on behind the scenes. It comes from the correspondence of Simon Fraser, Lord Lovat, with Sir James Grant. On 26 January 1739 Lovat wrote an excited letter about an unfamiliar position in which he found himself. Major White had hanged himself in his room at Fort Augustus, which was located in the regality of Lovat. Lovat was its lord and also Sheriff of Inverness‐shire. Thus he concluded it was his ‘duty to enquire in proper form by precognition how this miserable event happened & to take care of the goods, chattells, & writings of the wretch that thus inhumanely dispatched himself’. He delegated his bailie to hold a hearing ‘with such exactness as to enable me to make a very distinct Report of the manner & circumstances of the murder of this man, & the Situation in which he left his affairs which I am told is not inconsiderable’. Lovat was sure his charter entitled him to escheat goods ‘for whatever crime, & to be sure, this is one of the greatest & most odious could ever happen’, but he asked Grant to secure the support of his London patron. Of course, he was not yet sure if the escheat amounted to much, but in case the crown had the right he hoped to be reimbursed for his expenses and diligence by ‘geting a Casualty of this nature’.258

The next letter in the series shows that Lovat's enquiries had confirmed his rights, but suggests that he had received a reminder about what it meant to be a good lord. The eager venality of the first letter is replaced by the tone of someone with a flea in his ear. He wrote to Grant on 2 March 1739 a chastened man, withdrawing at lightning speed from a matter touched by considerations of patronage, influence, and duty, to which he had been blinded by avarice in his first letter. Having received a letter from ‘his Lordship’ (the duke of Argyll) he was quick to tell Grant that he had replied in a way which ‘will convince him that I have acted with as much generosity and good manners in that affair, as any man in Britain could do, for never had a thought or intention to bring any of major Whites effects to my own possession, For tho the Laws had determined them all for me, I was resolved to give them to pious uses'. Argyll had plainly rapped his (p.78) knuckles: Lovat had been told that Lord Harrington and Sir Robert Rich had an interest in the major's affairs; he had been reminded that, while the man was a stranger, escheats were not simple windfalls; and White's commanding officer had also written to Lovat ‘That I should drop it as not worthy my while’. He had, he added, written to Harrington saying he would not press his interest in the major's assets, ‘tho they were twenty times of a greater value than they say they are’.259

Dated 23 March, the final letter dealing with this affair finds Lovat recognizing as true friends of his ‘interest’ not ‘my Allies, the Campbells', but the commanding officer, General Wade, and Harrington. Harrington also secured him a ‘triffle’ for his trouble. Furthering the face‐saving exercise, he gave it that, while his Edinburgh lawyers had been clear about his right to the effects at Fort Augustus, they were divided about whether he had any claim to the man's goods in England. For all his bet‐hedging and self‐justification, he concluded a humbled man. ‘So that upon the whole I bless God (though I have got no money) I have got no dishonour by prosecuting my claim as far as I did, I have asserted by right In face of the Sun and I have got the Secretary of States thanks, for referring my pretensions to that unhappy mans Effects to his Lordship. So that I have done nothing but my duty to myself & to my family, in prosecuting my right, and there is no man that can say, but I have behav'd with good manners, & generosity in it from first to last’.260 It behoved a lord to be kind in such circumstances, and Argyll's reply was fitting for a selfish and dishonest man like Lovat, who had the name of a trimmer, a liar, and a turncoat. Never one to miss an opportunity of enriching or promoting himself, he also had a conviction for kidnap and rape, and had been sacked from his army command by Wade on suspicion of embezzling his clansmens' pay. Lovat was an upstanding example of a bad lord. He may have been the reason for Erskine of Carnock's pointed remark that lords of regalities endowed with rights of forfeiture could dispose of escheats as they wished, but that they did so commonly to the benefit of creditors.261

Lovat sought to assert his rights while forgetting his responsibilities. Local court and estate records give examples of better lords in action. John McIllvory in Kilmun of Lochawe killed himself, and the procurator‐fiscal of Argyll summoned his widow and son to account for his assets in January 1688. Three men, two of whom described themselves as ‘his door neibor’, attested that he had certain livestock and also household plenishings worth £5 6s 0d. Yet when the inventory was presented the prosecutor dropped the case because ‘there was not gear to satisfy the master of the ground ane years rent and publick impositions', acknowledging both the family's poverty and the law of hypothec.262 In other (p.79) instances, estate stewards sought to manage both expectations and distributions. James Grant (a local steward, not Lovat's correspondent) wrote from Achnahanat (Morays.) on 30 April 1742 to landowner Ludovick Grant about his efforts to let farms and collect debts. He had also incurred an expense ‘with the melancholie news of Helen Glens han[g]ing herself on which I immediatlie . . . caused make a cofin for her corps and interd it in a chapel near Clashindonnan’. Finally, he had given strict orders to lock up all Helen's effects until the lord ‘would take it to advise what further is to be don’.263 Factors had to be pragmatic as well as sensitive, decently disposing of a body that could become a focus of conflict, defending assets against a free‐for‐all among claimants, seeing to the needs of the vulnerable, and protecting those of their employers.264 A distinctly matter‐of‐fact tone comes out of a letter from John Ross to the earl of Findlater in November 1785. Ross rehearsed how Alexander Wilson owed the earl £500. ‘Driven to Despair by a Consciousness of his own Misconduct & Ingratitude to your Lordship, he made an Attempt . . . to put an end to his own Life, and tho’ the attempt did not immediately prove fatal . . . he cannot recover’. Ross wrote of shared ‘vexation & uneasiness', but it was at Wilson's irresponsible conduct, not the spiritual implications of his act: his assets were few and, while Ross was doing everything ‘for your Lordship's Indemnification’, the chances of loss were real.265

1.8 DENYING SUICIDE: THE RESPONSES OF SOME SURVIVORS

As in these cases, most self‐murders must have been assessed and their estates settled by agreed definitions of death followed by private adjustments with or without lordly assistance, or by the use in local courts of conventional legal processes for the recovery of debt. Do‐it‐yourself settlements could work perfectly well, and must have done in the many instances where signatures were not sought, but they could just as easily create difficulties and antagonisms resulting in applications. Declaratory actions were not required when there was agreement, or when the authority of a signature carried the requisite force; bonds associated with donations were not recorded in Exchequer registers unless the court's authority was needed for enforcement.266 However, seeking a declaration of right simply restated its existence and did not itself guarantee settlement. Two contested cases have been selected from Court of Session and Privy Council records to illustrate the crown's role in enforcing settlement in situations of distrust, dissimulation, and disagreement. Staunchly defended, these disputes (p.80) are better documented than normal processes of acquiescence, accommodation, or negotiation. They are, of course, narratives of disputes, but they show something of antecedent or parallel relationships and power structures, and they help to highlight conventional expectations and practices behind donations of escheats.267

On the surface, these cases look like attempts to deny or disguise suicide, something that many sociologists and historians assume survivors will routinely try to do.268 Some people did react in this way, but the more normal response at all stages was openness. Finders of a dead body sought help and witnesses. As well as providing immediate aid, calling in neighbours and/or officials opened up the event and allayed suspicion that invariably arose from secrecy in an intensely public society which accepted intervention in many intimate areas of life. Concealment left certain avenues open—like the chance to protect reputation or to deal informally or through confirmation with a suicide's assets—but it closed off others. Revelation brought swifter and more certain accommodation to the fact of self‐murder and a more complete resolution of its consequent inconveniences within a recognized framework of compliance.

Denying suicide could be just the start of a string of increasingly insupportable lies needed to maintain a facade, a point brought home by a dispute over a donation that dragged on through most of 1582, 1583 and 1584. It concerned the alleged suicide of Patrick Broun, flesher in Linlithgow. The initiative for the case came not from the crown, but from one of its servants who had been thwarted in his attempts to secure assets, which he had personally and at his own expense to collect and distribute regardless of having paid £50 composition for the privilege. Broun's goods and gear were seized by William Bischop, his daughter Beatrix, and Walter Polwart of Cauldlaw, a witness to his late wife's will.269 They pursued the donatory, Robert Lambie, appointed usher before the king's meat in 1582, before the Lords of Council and Session to prove that Broun had killed himself: difficult because (in Lambie's words) ‘the forme of his death is not manifest to mony, or at leist onlie knawin to thameselffis'.270

The problem was the lack of a body, for all Lambie had was moral certainty: ‘it be of veritie that the said umquhile Patrik put violent handis in himself; quhilk may be easily persavit be his lang absence and common brute [rumour] of the cuntrie, and als be thair awin frivole excusationis, allegeand him to be past in England, quhair he wes nevir sene be na persoun, bot onlie be thair imaginationis for cullouring of the said wickit fact’.271 Lambie's claim was tendentious, but it was not merely self‐serving subjectivity. It was based on an agreed version of (p.81) events culled from many, if clearly not all, of those who had known Broun: he had drowned himself early in 1582. Circumstantial evidence was strong, for Broun was recently bereaved. His wife, Isobel Coling, made a will on 2 December 1581 and died soon afterwards. The document contains few surprises: she was survived by her husband and siblings; her estate was quite modest. But at the start of her ‘testament testamentar’ is a striking personal instruction that her executors were to give ‘to hir husband ane furneist bed for luif she beris to him’: a fully made‐up feather bed as a love token.272 The only certainty is that Patrick disappeared, but the general opinion of the neighbourhood was that he had killed himself from grief.

Presumption was legally sufficient in cases like this, but in order to scotch family claims that he was simply away on business, Lambie petitioned that Broun be called for at recognized public places and given sixty days to appear on pain of being outlawed ‘to the effect the certaintie of his violent putting handis and slauchter of himself being hid and conceillit be his friendis mycht be knawin and manifestit’.273 He did not, and was declared a rebel (twice), the effect being to remove the case to the king's courts from any jurisdiction like a burgh that might claim cognizance.274 The Broun case was intractable partly because his relatives and friends were so adamant, turning pursuit of the escheat into a test of crown authority. It remained open until 1584 because the absence of a living or dead body (and thus of a conclusive narrative associated with it) left uncertainty to be exploited by Broun's family.

Backed by royal authority, Lambie used weighty legal processes to achieve closure. In a case from 1600 the crown explicitly joined a donatory in prosecuting the widower of an escheated suicide. This was David Peirsoun from Leven in Fife who refused to hand over part of his hanged wife's goods to Alexander Young of Eistfield, an usher of James VI's chamber. As the prosecuting advocate, Mr Thomas Hamilton of Drumcairnie, put it, Peirsoun: ‘wrangouslie refuisis postponis and differis to do the samyn without he be compellit’. Importantly, the crown at this stage had no financial interest in the suit, having already received composition of forty merks from Young.275 Yet Hamilton was both Lord Advocate and a member of the Privy Council, and thus a direct instrument of royal government.276 The king's advocate was responsible for handling the legal business of (p.82) the crown, which included enforcing its feudal rights and extending its authority by defending royal officers. More generally, he also supervised the king's judicial council, public order, treason trials, and the proper administration of justice by crown representatives, such as the Sheriffs. As well as defending royal privilege, he dealt with its customary obligations and he protected the poor in loco regis.277

Hamilton was not working for Young, but for the king, and the crown's patrimonial interest in bringing an action should not be confused with the fact that the case was brought by the king's advocate for the good of the whole community.278 This distinction is plain when royal servants really did litigate on their own behalf. During the mid‐1580s there was a spate of household servants suing for pensions and other entitlements. They retained private counsel, and the king's advocate was not involved.279 He was routinely present at the Court of Session when a declarator of escheat was made (as with many actions deriving right from the crown), but this does not prove he acted for the pursuer. When Henry Makesoun sought a declarator of escheat against Peirsoun by dint of the duke of Lennox's grant, he was represented by Mr John Nicolson, not by the king's advocate.280

Indeed Young and his lord were not the only ones with an interest in the forfeiture. Peirsoun (also called Paristoun in some documents) was in a difficult position because the right to donate his wife's assets was claimed by two lords: the crown and Ludovick, duke of Lennox, as lord of the regality of St Andrews. The duke gifted the escheat to Henry Mackesoun.281 James and his Treasurer may have known that this escheat would cause trouble as the warrant of the royal donation has a scrap attached to it noted: ‘exceptand always the guids and geir fallin in the hands of the Duik of Lennox haveing rycht to the regalitie of the archbishoprik of Sanct Androis and pertening to Henry Mackesoun his donator thereto be vertew of his gift’. James acted in support of Young, a favoured subordinate, to assert his authority, as he had done on behalf of Lambie.282 Peirsoun repeatedly failed to appear before the local Sheriff and regality courts, and was eventually ordered before the Privy Council on 30 May 1600. The crown here played ‘good lord’ by supporting a retainer acting as its instrument rather than an unencumbered beneficiary of its largesse: a royal servant doing royal business aided by the royal advocate. The aim of the litigation was partly to discipline Peirsoun for being difficult and ungrateful. He was ‘in denial’, but of his responsibilities rather than (p.83) of his wife's suicide, and the suit forced him to settle the competing claims on her estate. The case makes plain that shared symbolism and values cannot be taken for granted in the aftermath of all suicides. Some people refused to speak the language of reciprocity and settlement, seeking instead to subvert it in pursuit of their own interpretation of ownership and responsibility.

1.9 HOW VIOLENT WAS SCOTTISH SUICIDE? ILLEGITIMATE DEATH AND THE LEGITIMACY OF FORFEITURE

Arguments about denying and accepting the label of suicide can be further pursued by asking: How violent was Scottish suicide? Escheats are rather exact documents when it comes to specifying that the means of death was wrong, but they can be vague (or even blank) about issues such as how the person died, where they lived, and when or where the event happened—omissions or imprecisions that could give grounds for setting aside an English coroner's verdict and thus perhaps a forfeiture. The reason is that conformity to set forms was required at English common law, whereas in Scots law it was enough to satisfy certain general principles. For example, in August 1595 Alexander Danzell allegedly drowned himself in the water of Eden (Fife) ‘or otherways putting of violent handis in his awn persoun and sua unnaturallie bereaving him self of his awn lyiff’.283 Some applications give alternate means of death whose forensic appearance would have been immediately distinguishable.284 Those applying for escheats in these apparently vague terms were not being lazy or incompetent, just practical. With these reservations in mind, the bare facts about means of death are presented in Table 4.

Table 4 Means of Death among Scottish Individuals Who Committed Suicide Resulting in Escheat, 1550–1764

Means of Death

Male N

Male % Known

Female N

Female % Known

hanging

109

45

39

57

drowning

87

36

18

26

cutting

30

12

5

7

leaping

9

4

5

7

poisoning

2

1

1

1

shooting

6

2

0

0

unknown

22

13

total

266a

100

81

98

(a) Including one man who burned himself to death. Percentage columns may not add up to 100 because of rounding error.

(p.84)

Understanding how violent suicide was depends on standing back from what seems inherent or natural, to look at what is understood and imposed. The anthropology of violence normally deals with a triangle of perpetrators, victims, and observers, to which is added the interpreter or academic analyst, ‘Detached from the synchronicity of the participant observer’.285 In the case of suicide the first two are identical. Indeed separate analysis of self‐harm is unusual in studies of violence since the act cannot have been done without consent, so there is, at first glance, no question that the performer acted legitimately. However, judgements about legitimacy were made.

Social anthropologists remind us that ‘violence’ is rarely, if ever, intrinsic to an act. Instead, it is a word used to deny the legitimacy of a deed: a tactical rather than an absolute concept deployed where power was asserted or negotiated. As David Riches has put it, ‘when a witness or victim invokes the notion of violence, they make a judgement not just that the action concerned causes physical hurt but also that it is illegitimate’.286 In records of the forfeiture of goods, the person is commonly described as ‘laying violent hands' on him or her self, regardless of the means employed. Shooting, which seems intuitively more violent because invasive and bloody, was an aristocratic means of dying in late Stuart England: those of gentle status made up 10 per cent of suicides 1660–1714, but 70 per cent of those who used pistols.287 The same was true of Scotland, where four of the six escheated suicides who used a gun were landowners (all between 1590 and 1609). Shooting was ‘gentle’ rather than violent.288

At one level, ‘violent’ is simply the opposite of ‘natural’ when discussing death: external rather than endogenous agency, whether deliberate or accidental. Drawing on a store of modern cultural norms that stress ‘the apparent universality, intractability and unacceptability’ of certain acts, historians sometimes describe the means of suicide as more or less violent.289 In doing so they adopt a widely accepted definition of violence as ‘destructive physical force used as a means of exerting one's will, and the achievement of ends by the infliction of pain and the threat of injury’.290 Yet as William Ian Miller reminds us, such a definition has (p.85) a ‘seductive essentiality’ by inferring that the category is ‘timeless and relatively context‐insensitive’.291 It is particularly problematic when dealing with suicides, where the fear of pain and injury has been overcome and the aim of using force is to end the perpetrator's life, severely limiting (if not entirely removing) the implicit element of domination: it contains no threat. This definition of violence is similarly unsatisfactory for analysing the physical punishment of suicides, where pain is irrelevant, any threat of force is against a secondary party, and the exertion of will is self‐referencing.

The words employed in escheats combine three usages: reflective, echoing official terminology; formulaic, following legal forms; and rhetorical, aiming to persuade an audience. Yet things that are routine are not always unimportant, and ‘violent’ also implied intent, made explicit in the case of Euphane Birsbane, who ‘put violent handis on hir awine self of hir awine free will’.292 In short, invocations of ‘violence’ found in forfeitures cannot be read as judgements about the act that resulted in suicide, but were ‘legally constitutive elements' of the documentation, which relate to the legitimacy of the act rather than its content.293 Contemporaries may have seen a difference in the quality of different means of self‐inflicted death, as they did with methods of execution. Drowning was wrong for men because of the associations of water with female spirits and because it was a way of executing women: it was seen as an easy way to die.294 Context also mattered and secrecy enhanced the impression of wrongdoing, as when John Hutcheon hanged himself ‘under sylence and cloud of nicht’.295 However, as far as the crown, its agents, and applicants for escheats were concerned, one wrongful means of dying was as violent as another. In a legal, political, and symbolic sense, drowning or hanging was no less violent than evisceration or blowing one's brains out.

Descriptions of ‘violence’ show that applications for escheats were a type of rhetorical device framed as an apology. For early modern France, Natalie Davis terms such appeals ‘fictions': submissions following set forms that were believable in general rather than necessarily true or even heartfelt in specifics.296 (p.86) The difference between pardons and letters applying for gifts of escheats was that ‘pardon‐tales' sought to diminish premeditation and responsibility, where applications explicitly owned culpability, creating what Erving Goffman calls a ‘remedial interchange’ by offering a public transcript of compliance.297 The interaction was at one level ritualistic, in presenting the applicant's current pliant relationship to laws and norms, and also restitutive, in (sometimes) giving material compensation to the crown in recognition of the rules that could have been applied.298

Steeped in the conventional dichotomies of mid‐twentieth‐century sociology, Goffman sees the apology as something to be projected, then withdrawn from, since there was a difference between substantive and ritual relations.299 However, sincerity or ‘real’ meaning was less important than the context of the utterance and the limitations it created, because what auditors listened for in these rhetorical formulae was the point, rather than just the sense and reference of the utterance itself.300 When John Galt's wife killed herself in 1614, he buried her outside the north wall of the churchyard, on a piece of rented land, ‘as the most convenient place of buryall for one who had so unnaturallie oversene hir self’.301 John, or someone acting for him, inserted this clause into a complaint to the Privy Council about the subsequent exhumation and desecration of his wife's body. The rest of the document argued that he had acted as a law‐abiding and circumspect neighbour, and thus the wording fulfilled a tactical end by sounding plausible. Nevertheless, it involved John in a formal acceptance that what his wife had done was wrong, a complicity that helped him to argue that those who abused her corpse were also worthy of censure. Galt or his agent was acting a role that accepted authority by expressing contrition, as well as communicating meaning through complaint.

Suicide narratives in charges like Galt's or in applications for gifts of escheat were constructed in collaboration, the language conveying an acceptance of the illegitimacy of self‐murder and thereby drawing the parties into a shared enterprise to deal with its outcome. With escheats, all sought remedy for a common disaster by embracing more or less freely the offer of a solution that balanced private interests with public utility. Applicants participated in what some may have (p.87) seen as an act of homage or ‘a secular form of communion’, entering into a language game in which what they said could limit their behaviour.302 The limitation was the acceptance of wrongdoing and the need to recruit the aid of the crown publicly to handle its results. The gain achieved was that such action was justified in a recognizable way by a set of value judgements. Applicants exchanged loyalty for protection, and admission for remission, creating links that came easily to people who believed in Covenanting and earlier forms of bonding like manrent and maintenance.303 With this mentality, the paradox noted by the modern theorist, Jacques Derrida, between the gift as giving and exchange, had no relevance.304 Behind the rhetoric of blame there was, surely, a calculus of self‐interest, grudging accommodation accompanying sincere acceptance. Yet, even in the instrumental use of royal authority to solve an immediate problem, there was implicit a belief in the broader right of the crown to define suicide as wrong—even if the precise concept of order was not wholeheartedly taken on board, and even if an individual act of self‐murder could be viewed very differently by the ‘friends' of the deceased than was suggested in the escheat.

The end result was a sort of rehabilitation. It was not a ‘free pardon’ in eliminating completely the offence (and thus the punishment) and nor was it a commutation, which substitutes one punishment for a lesser one. Instead it was closer to a remission, which reduces or removes a sentence.305 With suicide it served to mitigate the rigours of the law rather than ameliorate shortcomings in the judicial system or correct miscarriages of justice.306 The system was (p.88) not deficient or weak, which is how medieval English historians traditionally portrayed pardoning.307 Instead, personal and private considerations were part of it. Donations were an extension of executive power into the administration of justice, dealing in the case of suicide with an offence where the level of proof required was low and the opportunities for ‘appeal’ were restricted and expensive. They retained the form of the law by adjusting its operation to individual circumstances, softening or even nullifying the penalty of forfeiture and achieving a measure of reconciliation between the dead and the living, as well as between elements of the survivors. Suicide did not taint bloodlines and the reconciliation implicit in donations may explain the lack of any lasting social stigma. For example, Mr Robert Howye or Howie was able to occupy posts in Aberdeen requiring the highest religious and moral credentials—even after his father, a merchant burgess, killed himself in 1581. Howie became minister at Aberdeen in 1592, first principal of Marischal College from 1593 and a burgess of the city in April 1597.308

Of course, forfeiture was a mark of disapproval and not all escheats were given or received as ‘remissions'. To have done so without evident cause would have been to weaken the authority of the crown: complaints about promiscuous granting of remissions were frequently repeated from the late fifteenth to the late seventeenth century.309 Expensive or free, no gift wholly removed the ‘conviction’ (on which its granting depended), and it did not secure an acknowledgement of guilt except at second hand, let alone a promise of reformation. Some creditors of suicides may have disliked them enough to couch applications for signatures in terms not far removed from what they felt. However, donation drew a line under a suicide and helped to calm any remaining local animosities by lending the weight of the king's peace to the grantee or trustee charged with sorting out the deceased's affairs on behalf of the creditors. Donations of escheat offered a civil (and social and political) solution to something in the nature of a crime.

1.10 CONCLUSION: ENFORCING AUTHORITY IN AN AGE OF POLITICAL AND SOCIAL CHANGE

The gifting of escheats was a subtly responsive form of social engineering. Survivors of suicides may have felt helpless and abandoned—as much as (p.89) the dead person, they were the victims of a bad death. As Foucault put it, ‘the injury that a crime inflicts upon the social body is the disorder that it introduces into it’.310 Managing escheats limited disorder, the actions of the crown serving to enhance social stability. However, against Foucault, an unequal power relationship is not necessarily one marked by, or experienced as, domination and subordination. The choices made in granting escheats created continuity and allowed regeneration by individuals and groups. They also forged bonds between rulers and ruled, illustrating that the gift relationship might have arisen from a disparity in wealth and power, but was realized when both donor and recipient had something to offer each other. Conferring legitimacy on the grantor, applications announced his power, solicited his mercy, and invited joint participation in mending the social fabric. Granting a donation confirmed these goals, creating and recreating people as social identities, affirming and reproducing mutual dependence in a collaborative enterprise.311 The handling of suicide demonstrates the dense networks of kinship, protection, and service, along with duty, honour, and practicality, which characterized late medieval and early modern Scotland.312

Of all things transacted, the least important was money. Indeed, the lower the composition charged, the greater was the addition to the donor's ‘credit’ because it showed his generosity and reinforced the disparity in power that lay behind the relationship. At this level, donations were a particularly effective way of structuring and cementing social dependencies, with forfeitures by a few high‐status and high‐worth people adding most obviously to the store of prestige. Yet the gift relationship was equally advantageous if the person was poor. The lowly social status of most suicides and the generally small compositions imposed might suggest that only poor suicides ever made it into the ambit of the royal Exchequer because they did not matter. More likely, the poor and powerless deliberately put themselves under the crown's care to settle disputes. The often low level of composition charged contributed to the success of the transaction by emphasizing not only royal interest in subjects, but also royal wealth and generosity in a fundamentally lopsided relationship.

The effect of donations may appear uneven or even capricious, but (as John Beattie suggests for eighteenth‐century English criminal courts) those who administered escheats were concerned less with ‘the abstract issues of guilt and innocence or with the justice of the verdict and sentence as they were with the general outcome of a court session and the overall impression it was likely to make’.313 Perhaps lords did not always do the right thing, but they tried to make sure they were seen to do what seemed right. Justice and (p.90) leniency had to be carefully balanced and granting pardons too liberally or to egregious and undeserving offenders would harm royal authority.314 The king had to be cautious when dispensing grace, balancing generosity with caution to prevent charges of favouritism, wastefulness, or gullibility. Royal mercy was predictable, in that its conferral followed certain norms of lordship that most people understood.

Early modern law was as much about order as rules, the crown structuring local social and economic relationships in its role as ultimate peacemaker: James VI styled himself Rex Pacificus.315 He acted as a good lord or ensured others did so in his stead, defusing conflict and creating public order through personal involvement. Sometimes that role was performed with a strong arm, for discipline and the measured use of retribution were also expected components of lordship. ‘Good rule’ was a rhetorical phrase used by late medieval and early modern Scottish monarchs to express the qualities of those well affected to the crown's ideas of order and obedience. For their part, the ‘good ruled’ approved of the unity brought by strong lordship, and it is wrong to see disputed forfeitures as indicative of structural problems within this way of handling the consequences of suicidal death. Instead, people valued the intervention of the lord in reconciling disputes and enforcing what was just in a situation where one or more people were being unscrupulous. Justice as a manifestation of late medieval and early modern lordship demanded not the consistent application of rules, but the discretionary exercise of moral authority.

What changed over time was not the severity or leniency of the crown, for any lord could be by turns wrathful and vengeful, merciful and generous, but royal willingness to exercise discretion at all in choosing donatories. After the Restoration, monarchs no longer felt obliged to service gift relationships in the same way they had c.1560–1640. For patron and client alike, the nature of social and economic relationships had shifted from the ‘traditional’ moral bond of the gift to the more ‘modern’ neo‐classical forms of market exchange and bureaucratic order. In place of calculated discretion, based on well‐understood but rarely stated rules of lordship and patronage, came a more standardized application of clearly enunciated principles. For a time, until undermined finally by the demise of escheat for debt (the abolition of imprisonment for civil debt did not come until 1880), this means of dealing with suicide retained the form of a gift, but without its associated ideals and personal qualities. Regulated improvization gave way to structured disposition.316 (p.91)

Early Enlightenment lawyers criticized the allegedly irrational and opaque aspects of the prerogative powers that underlay donations of escheats in a social and political climate that favoured the more obvious legal predictability of routine assignment of forfeitures to the principal creditor(s). Thus Stair could express appreciation for the ‘the royal benignity of our Kings, and their favour to lawful creditors' in granting single escheats to a donatory for their benefit, rather than retaining them.317 Stair's meaning is unclear: perhaps he was being ironic as he allowed royal prerogative if properly balanced by liberty; he may have been talking about changing practices, writing in the 1650s when the Cromwellian government was trying to exploit the rights of the crown as a way of raising revenue in Scotland.318 Whatever Stair meant, the tide of opinion was turning against lordly discretion. Soon after Stair was published, Baron Clerk could play down the crown's direct role in donations. Gifts of escheats were instruments ‘which pass in the ordinary course of business in the Exchequer, and not under his Majesty's hand . . . all these proceed in his Majesty's name, with advice and consent of the Barons [of Exchequer]’.319 In Bankton's time (c.1750) ‘escheats are granted by the barons of exchequer, as they see expedient, to persons applying for them’.320 Bankton thought earlier donations had been open to abuse, though he never explained why: ‘This exercise of the prerogative was justly complained of, and prohibited by statute, being not only highly prejudicial to the debtor, but likewise to his lawful creditors'.321 Mid‐eighteenth‐century lawyers like Erskine assumed that royal officials had no role in reporting potential escheats and he too played down the crown's prerogative: ‘no right would have arisen to the crown, had it not been for the diligence of that creditor’.322 Erskine described the then outdated process of applying for a donation as ‘oppressive’.323 Writing in 1792 with heavy (Whig) sarcasm, Walter Ross openly derided the supposed generosity of feudal lords in not taking all they could when making what ‘they proudly termed gifts'.324 This was anachronism: in the heyday of escheating, forfeiture belonged to the lord and was his to dispose of as he saw fit.

Erskine's complaint was about procedure. Following Mackenzie, he approved of the royal prerogative and did not subscribe to Stair's more English‐framed constitutional exposition.325 Erskine noted the shift towards emphasizing the king's obligations during the eighteenth century, even if he disagreed with it. Writing about escheat of rebels, he remarked on the preference for giving donations to creditors: ‘some lawyers have been led to conjecture, that this (p.92) doctrine was originally devised, not for enriching the crown, but as means of doing justice to the creditors . . . that the King is not truly proprietor of the escheat goods, but barely a trustee . . . But this favourable hypothesis has little support from our statutes'. The creditor who lodged the signature had a moral claim to rank first: a ‘burden upon the crown's right . . . most just; for no right would have arisen to the crown, had it not been for the diligence of that creditor’. Yet Erskine was convinced that ‘the preference given by the Barons of Exchequer, to the other creditors of the rebel [i.e. other than the crown], in their nomination of a donatory, is merely an act of equity or humanity, and could not be demanded on those creditors as of right’.326

In different ways, Enlightenment lawyers portrayed the decline of escheat in Scotland as progress. To historians it looks on the surface like a shift from personal to public solidarities of the kind that sociologist Max Weber posited. Michael Braddick's simplified Weberian analysis of early modern English state formation (shared implicitly by Goodare) posits ‘the replacement of government by licence with government by bureaucracy’.327 Yet the change is not quite so simple and historians may be ‘captive of that Weberian equation of the ancien régime with the customary, the traditional and the particularistic, and of the modern with the rational, the disciplined, the impersonal and the bureaucratic’.328 Early modern British monarchs possessed delegated administrations or bureaucracies (even if they were not the rational ones envisaged by Weber), and part of their power came from an apparatus that allowed them to get and spend, to order and control.329 Furthermore, it is clear that the handling of suicide was only ‘bureaucratized’ for a period in the seventeenth century, and even then bureaucracies remained patrimonial, lacking a clear distinction between the office and the official. The main trend was a decline in any formal use of governmental resources to settle suicides' estates. Thus bureaucracy too was a transitional phase between the personal and the individual, as was the Kirk's role in disciplining those other than its voluntary adherents.

The heyday of escheat for suicide in Scotland was not the great age of aristocratic power, but the period when royal government and royal courts established themselves as the normal way of resolving many disputes. It was part of an intensification and proliferation of forms of dispute resolution that occurred (p.93) in the second half of the sixteenth century. Yet escheating too was a transitional rather than an ancient or modern phase: what English Victorian lawyer Henry Maine saw, in the most famous of his axiomatic propositions, as part of ‘a movement from Status to Contract’, where status was ‘personal conditions only’, deriving from ‘the powers and privileges anciently residing in the Family’, and contract the result of the voluntary interplay between intention and expectation that formed an obligation.330 Maine's ideas of legal and social development owed much to natural law theory of the seventeenth century, further developed in the Scottish Enlightenment.331 Published in 1861, his Ancient law informed both the German sociologist, Ferdinand Tönnies (1887), and Weber (1922)—as did the work of von Gierke. For Maine there was a change ‘from a condition of society in which all the relations of Persons are summed up in relations of Family . . . towards a phase of social order in which all these relations arise from the free agreement of Individuals'.332

This does not mean that there was no individualism in the sixteenth or seventeenth century, however ‘rough and rude’, but that priorities and responsibilities were not exactly those of later times.333 It was only in the second half of the eighteenth century that thinkers like Ferguson, Hume, and Smith produced the tidy distinction between ‘impersonal utilitarian and personal affective relationships' now so familiar in the world of ‘contract, instrumental rationality, organic solidarity, bourgeois individualism’ that is the modern West.334 In the nineteenth century, Tönnies could posit a transition from social life as affective ‘community’ (Gemeinschaft) based around localized tradition, hierarchy, and mutuality to ‘society’ (Gesellschaft), which was a large group of independent people exchanging commodities, using contracts, and acting rationally for self‐interest.335 In the latter world of independent, possessive actors, those liked are distinguished from those needed, sentiment from reason, noble feeling from sordid interest.

This was a world to come. From the mid‐seventeenth century the implications of suicidal death were increasingly worked out between concerned individuals, with or without the new legal mechanisms for resolving debt and insolvency, but largely without activating formal structures that invoked the king's lordship. Individuals came to handle debt and credit with less need for lordship, but not necessarily without some kind of negotiation, mediation, or arbitration founded on ideas of equity, community, or fellowship; in the seventeenth century Kirk (p.94) Sessions helped to create this ‘silent revolution’.336 Only in the eighteenth century did social and economic relationships come to seem truly knowable, rendering law itself ultimately less necessary. What distinguished early modern Scottish society from its successors was the mix of legal form and personal lordship, whose discretionary operation provided access to material resources and social or positional advantage.

The decline in applications for signatures to obtain donations of escheats shows that change came from below. Certain practical legal changes happened quickly within the window when gifts of escheat were most sought, but fully alternative legal mechanisms that could easily settle debt and credit disputes did not develop until well after escheating was in decline. Yet at the same time suicide survivors responded to political and ideological change among the elites, as nobles adjusted to forces as diverse as the crown's insistence on ending the feud (widely construed to mean anything from bloody violence to being at loggerheads in court), the royal court's move to London, pressure from the Kirk, and new juristic concepts that favoured predictability. This dialectic between lords and people, institutions and society provides a better explanation of change than does a model that asserts the primacy of one over the other.

Notes:

(17) ERS VII, 309 (1465). W. M. Morison, The decisions of the Court of Session . . . in the form of a dictionary 42 vols. consecutively paginated (Edinburgh, 1801–7), supplement 1, 113 (1481). The latter judgment (recognizing the idea of deodand, but finding it did not apply in this case) follows the example in Quoniam Attachiamenta. T. D. Fergus (ed.), Quoniam Attachiamenta (Edinburgh, 1996), ch. 35 [p. 203]. Adam Smith's discussion of ‘deodat’ is about England. A. Smith, Lectures on jurisprudence edited by R. L. Meek, D. D. Raphael and P. G. Stein (Oxford, 1978), 116–17.

(18) For early examples see ERS IV, 412, when a foreigner hanged himself in 1426, ERS VIII, 32 (1471) and ERS XI, 375 (1501). G. Neilson and H. Paton (eds), Acts of the lords of council in civil causes vol. 2 (Edinburgh, 1918), 84, 244, 254, 284–5. Various editors, ATS IV, 164; V, 8; VI, 69, 295, 375; VII, 76, 81; VIII, 17. Up to 1566 not all entries appear in the printed record, selection apparently being at the whim of the editor. The manuscript Treasurer's Accounts continue to list compositions for escheats up to 1635. NAS E21 and E22. Thereafter they may be found in the Treasury Accounts (E26) and Receiver‐General's Accounts (E27). J. Erskine, An institute of the law of Scotland in four books, in the order of Sir George Mackenzie's institutions of that law 2 vols. (Edinburgh, 1773), II.V.58. Other statutes cited are 1579 c. 75 and 1592 c. 145.

(19) Wallace, Sheriffdom of Clackmannan, 25. C. Madden, ‘Royal treatment of feudal casualties in late medieval Scotland’, SHR 55 (1976), 172–94. NAS E38/403A. E38/425A. D. M. Rose (ed.), The revenue of the Scottish crown, 1681 (Edinburgh, 1897), 41, 47, 56. APS III, 457. W. C. Dickinson (ed.), The sheriff court book of Fife, 1515–1522 (Edinburgh, 1928), xlvii.

(20) A. L. Murray, ‘Notes on the treasury administration’, in C. T. McInnes (ed.), Accounts of the Treasurer of Scotland: vol. XII, 1566–1574 (Edinburgh, 1970), xxii. Erskine, Institute, II.V.62. W. Ross, Lectures on the history and practice of the law of Scotland, relative to conveyancing and legal diligence 2 vols. (Edinburgh, 1822), vol. 1, 208–11.

(21) R. A. Houston, ‘What did the royal almoner do in Britain and Ireland, c. 1450–1700?, EHR 125 (2010), 1–35.

(22) NAS PS1/1–116. PS2/1–62. PS3/1–17. E2/2–58, Register of Signatures, 1561–1649. PS6/1–7, are the minute books.

(23) Murray, ‘Notes on the treasury administration’, xxii. Goodare, Government of Scotland, 178.

(24) J. Clerk and J. Scrope, Historical view of the forms and powers of the Court of Exchequer in Scotland (Edinburgh, 1820). This was a late printing of a manuscript written in the 1730s. A. Murray, ‘The pre‐Union records of the Scottish Exchequer’, in F. Ranger (ed.), Prisca Munimenta: Studies in archival & administrative history (London, 1973), 173. G. Dallas, System of Stiles, as now practicable within the kingdom of Scotland . . . (Edinburgh, 1697).

(25) Clerk and Scrope, Court of Exchequer, 196.

(26) Goodare, Government of Scotland, 146.

(27) An institute of the laws of Scotland in civil rights . . . by Andrew McDouall [Lord Bankton] 3 vols. (Edinburgh, 1993–5), III.III.24.

(28) A. L. Murray, ‘The post‐Union Court of Exchequer’, Stair Society Miscellany 5 (2006), 103–4.

(29) See for example NAS PS3/7, 521–3 (1727).

(30) For example RPSS VIII, no. 295.

(31) NAS E26/11–12.

(32) NAS E28/389/17. From June 1682 to March 1692 some 102 compositions of escheats are recorded with the names of donatories and persons forfeited.

(33) For example, NAS PS6/2, 3 and 4; E319/1–9, Minute Books of Signatures, 1661–1819. Bastardy was a legal fiction to dissolve villeinage in fifteenth‐ and sixteenth‐century England. MacCulloch, ‘Bondmen under the Tudors’, 101–7.

(34) NAS E2/11, 23 April 1586.

(35) RPSS IV–VIII.

(36) Murray, Suicide, vol. 1, 352. Seabourne and Seabourne, ‘Suicide or accident’, 43, found a further 178. Butler, ‘Degrees of culpability’, 266. There is overlap between Butler's population and those of Murray and the Seabournes.

(37) J. Campbell, The Anglo‐Saxon state (London, 2000).

(38) M. Godfrey, ‘Arbitration and dispute resolution in sixteenth‐century Scotland’, Tijdschrift voor Rechtsgeschiedenis 70 (2002), 109–35.

(39) Murray, Suicide, vol. 2, 67–8.

(40) M. Raeff, The well‐ordered police state: Social and institutional change through law in the Germanies and Russia, 1600–1800 (London, 1983), 30–2.

(41) Quoted in R. R. Zulager, ‘A study of the middle‐rank administrators in the government of king James VI of Scotland, 1580–1603’, (University of Aberdeen Ph.D., 1991), 35; see also 125.

(42) ’J. Wormald, ‘ “Princes” and the regions in the Scottish reformation’, in N. MacDougall (ed.), Church, politics and society: Scotland, 1408–1929 (Edinburgh, 1983), 74.

(43) M. J. Brown, The black Douglases: War and lordship in late medieval Scotland, 1300–1455 (East Linton, 1998), 159–82.

(44) M. Mauss, The gift: The form and reasons for exchange in archaic societies translated by W. D. Halls (London, 1990).

(45) L. L. Peck, Court patronage and corruption in early Stuart England (London, 1993). J. G. Carrier, Gifts and commodities: Exchange and Western capitalism since 1700 (London, 1995). A. Offer, ‘Between the gift and the market: the economy of regard’, EcHR 50 (1997), 450–76. N. Z. Davis, The gift in sixteenth‐century France (Oxford, 2000). M. Osteen (ed.), The question of the gift: Essays across disciplines (London, 2002).

(46) D. O'Hara, ‘The language of tokens and the making of marriage’, Rural History 3, 1 (1992), 29, writes that gifts formed ‘a flexible language of initiation, promotion, development, confirmation, or termination of relations’.

(47) Davis, The gift, 35.

(48) Offer, ‘Economy of regard’, 457.

(49) P. A. G. Monro (ed.), ‘The professor's daughter: An essay on female conduct by Alexander Monro (primus) [1739]’, Proceedings of the Royal College of Physicians of Edinburgh 26, 1 (1996, supplement 2), 150.

(50) 1 Plowden 261. T. L. Beauchamp, ‘An analysis of Hume's essay “On Suicide” ’, Review of Metaphysics 30 (1976), 75.

(51) [George Mackenzie] The laws and customs of Scotland in matters criminal, in The works of that eminent and learned lawyer, Sir George Mackenzie of Rosehaugh, advocate . . . , (Edinburgh, 1678), I.XIII.I.

(52) P. G. B. McNeill (ed.), The practicks of Sir James Balfour of Pittendreich, reproduced from the printed edition of 1754 2 vols. consecutively paginated (Edinburgh, 1962–3), 556. Bankton, Institute, III.III.2. See III.III.21, for assets covered by single escheat.

(53) Rebellion against the crown was the foundation for execution of caption in cases of civil debt. A debtor who failed to pay when duly charged with letters of horning became a rebel when publicly denounced in the king's name. Balfour's Practicks, 566. Dalrymple, Feudal property, 59–60. Ross, Lectures on diligence, vol. 1, 273–9. Murray, Early burgh organization, vol. 2, 515–17. I. Treiman, ‘Escaping the creditor in the Middle Ages’, Law Quarterly Review 43 (1927), 230–7. Goodare, Government of Scotland, 178. J. D. Ford, Law and opinion in Scotland during the seventeenth century (Oxford, 2007), 161.

(54) Erskine, Institute, IV.IV.46. It seems unlikely that the decree of declarator, which legal writers deemed necessary, was required in practice unless the administration was disputed.

(55) W. Bell, Dictionary and digest of the law of Scotland (Edinburgh, 1838), 953.

(56) D. Hume, Commentaries on the law of Scotland, respecting crimes 2 vols. (Edinburgh, 1844), vol. 1, 300. The authority cited is Craig. J. A. Clyde, The Jus Feudale of Sir Thomas Craig of Riccarton . . . (Edinburgh, 1934), 1.16.32. Hume states that the case is not dated and has not been traced in Court of Session records, which is curious as it appears in a number of sources including one early compendium of decisions. NLS Adv. Mss 24.2.1(3), case 626. Adv. Mss 24.1.1(1), ff. 118v–119. NAS PS1/69, f. 232. ECA SL1/1/10, f. 177v (8 March 1598). Chamberlain's accounts, 1596–1612, p. 131. Morison, Dictionary, 11965.

(57) The laws and customs of Scotland in matters criminal, I.XII.I–II.

(58) Ibid., I.XIII.II.

(59) Ibid., I.XIII.II.

(60) Stair's institutions, I.X.13.

(61) Craig himself had been procurator for the pursuer in this case. NAS CS7/173, f. 393v.

(62) The laws and customs of Scotland in matters criminal, I.XII.II.

(63) Morison, Dictionary, 11965.

(64) For comparison see the discussion in Vandekerckhove, On punishment, 73–7.

(65) A. D. M. Forte, ‘The horse that kills: Some thoughts on deodands, escheats and crime in fifteenth century Scots law’, Tijdschrift voor Rechtsgeschiedenis 58 (1990), 105–6, 109. B. S. Jackson, ‘Liability for animals in Scottish legal literature: From the auld lawes to the sixteenth century’, Irish Jurist 10 (1975), 334–51.

(66) The laws and customs of Scotland in matters criminal, I.XII.II.

(67) NAS CS7/280, ff. 241–242v (5 June 1613).

(68) J. A. Clyde (ed.), Hope's major practicks, 1608–1633 (Edinburgh, 1938), VI.27.80. Morrison, Dictionary, 3440.

(69) D. Ibbetson, ‘Fault and absolute liability in pre‐modern contract law’, JLH 18 (1997), 2. R. Black, ‘A historical survey of delictual liability in Scotland for personal injuries and death’, Comparative and International Law Journal of Southern Africa 8 (1975), 46–70. R. Zimmermann and P. Simpson, ‘Strict liability’, in K. Reid and R. Zimmermann (eds), A history of private law in Scotland. Volume 2: Obligations (Oxford, 2000), 548–83.

(70) Morison, Dictionary, 11965.

(71) P. Stein, ‘The influence of Roman law on the law of Scotland’, Juridical Review new ser., 8 (1963), 216.

(72) RPSS VI, no. 884.

(73) Goodare, Government of Scotland, 174.

(74) J. G. Bellamy, The criminal trial in later medieval England: Felony before the courts from Edward I to the sixteenth century (Stroud, 1998), 29.

(75) Two centuries on, Adam Smith's anachronistic gloss on strict liability was: ‘Resentment is on the whole a very indiscriminating principle and pays little attention to the disposition of the mind.’ Smith, Lectures on jurisprudence, 485. There are interesting parallels with early modern Russia. Morrissey, Suicide, 27–9.

(76) R. Pitcairn, Criminal trials in Scotland, from A.D. MCCCLXXXVIII to A.D. MDCXXIV 3 vols. (Edinburgh, 1833), vol. 3, 219.

(77) NAS NAS AD12/11–12. Case of John Mair (1850) in AD12/11, p. 26. Prior to 1848, reports of suspicious deaths are recorded in the Procedure Books, which give lists of cases passed to the Crown Office, but there is no indication of the outcome of any inquiry other than ‘no proceedings'. NAS AD9/1–11 (1822–48).

(78) NAS E2/32, 8 November 1613.

(79) The laws and customs of Scotland in matters criminal, I.XII.V. Vandekerckhove, On punishment, 43–4, discusses perfunctory procedures regarding suicidal deaths in the medieval and early modern Netherlands.

(80) Erskine, Institute, IV.IV.46.

(81) EUL Dk.4.57, ‘Of Disqualifications’, 8 [insert].

(82) NAS CC8/5/22, Callman v. Gourlay (19 September 1794). CC8/5/29/1, Walker v. Macadam (16 & 18 April 1806). M'Adam [sic] v. Walker, 1 Dow P. C. 148. Walker v. Macadam became the subject of a novel. J. M. Sloan, Quintin Doonrise: A study in human nature (Paisley, 1892).

(83) This principle was summarized in the digest of Walker v. Macadam in Morison, Dictionary, appendix 1, ‘proof’, no. 4 (between pp. 12768 and 12769): ‘suicide is not, per se sufficient evidence of insanity, so as to invalidate engagements previously entered into’. M'Adam [sic] v. Walker, 1 Dow P. C. 148.

(84) Idem.

(85) NAS CC8/5/29/1, Walker v. Macadam, 551–2.

(86) RPCS 3rd series VII, 44. Chronological notes of Scottish affairs, from 1680 till 1701; being chiefly taken from the diary of Lord Fountainhall (Edinburgh, 1822), 27.

(87) NAS PS3/3, 471–2 (reg. 24 November 1682), in which he is described as Falconer of Tulleich. The other examples can be found in PS3/3, 481, 533–4.

(88) NAS PS1/112, ff. 99–99v.

(89) Quotation in NAS SC54/10//2/1/1.

(90) An introductory survey of the sources and literature of Scots law (Edinburgh, 1936), 95.

(91) As listed in A. L. Juhala, ‘The Household and Court of King James VI of Scotland, 1567–1603’, (Edinburgh University PhD, 2000), appendix 1.

(92) ATS XII, xxiii, xxvi. Goodare, ‘Fiscal feudalism’, 194.

(93) It may be that the 68 where no composition is stated were free, but in the absence of supporting evidence they have not been included. An escheat noted as ‘gratis' may simply mean that a fee was charged, but not accounted for, as happened particularly during the minority of James VI. ATS XIII, xi. The crown's potentially large contemporary income from sources like wardships and escheats was also disposed of without being subject to account. R. Nicholson, Scotland: The later Middle Ages (Edinburgh, 1974), 567, 573.

(94) NAS PS1/106, f. 177v.

(95) NAS E2/36, f. 213. PS1/69, f. 232. E2/7, f. 77v (31 August 1579). RPSS VI, no. 2029.

(96) NAS RH15/55/6, ‘Note of the expenses debursed in passing of the gift of the late earl of Dalhousie's escheat 1686’. An earlier table of charges (1606) can be found in RPCS VII, 167–9. In Elizabethan England wardship could cost roughly four times as much to a family as the payment to the crown because of the need to pay off informants and officials. J. Hurstfield, The queen's wards: Wardship and marriage under Elizabeth I (London, 1958), 343–5. J. Hurstfield, ‘The profits of fiscal feudalism, 1541–1602’, EcHR 8 (1955), 58. See H. C. Maxwell‐Lyte, Historical notes on the use of the Great Seal in England (London, 1926), 94–6, on the multiple payments needed to secure a royal pardon.

(97) V. M. Lester, Victorian insolvency: Bankruptcy, imprisonment for debt, and company winding‐up in nineteenth‐century England (Oxford, 1995), 149–51.

(98) Hurstfield, ‘Fiscal feudalism’, 59.

(99) M. J. Braddick, The nerves of state: Taxation and the financing of the English state, 1558–1714 (Manchester, 1996), 72–5.

(100) S. M. Butler, ‘Local concerns: Suicide and jury behavior in medieval England’, History Compass 4/5 (2006), 820.

(101) Hurstfield, ‘Fiscal feudalism’, 53.

(102) Madden, ‘Feudal casualties’, 176, 193.

(103) E. Gellner, Plough, sword and book: The structure of human history (London, 1988), 159, quoted in Goodare, Government of Scotland, 298.

(104) C. Dyer, ‘The ineffectiveness of lordship in England, 1200–1400’, in C. Dyer, P. Coss, and C. Wickham (eds), Rodney Hilton's Middle Ages: An exploration of historical themes (Oxford, 2007), 79.

(105) N. D. Hurnard, The king's pardon for homicide before A.D. 1307 (Oxford, 1969), 22–3. J. Goodare, State and society in early modern Scotland (Oxford, 1999), 102–32. These ideas originated in the Renaissance with Machiavelli and Bodin, who thought that providing justice would stop the headstrong masses criticizing their rulers. HL Ellesmere 1174.

(106) Charters and other documents relating to the city of Edinburgh, A.D. 1143–1540 (Edinburgh, 1871), no. liv. ERE, 1403–1528, 64. The crown secured the reversion under James VI, and Edinburgh formally surrendered its felony escheat rights when it got a new charter in 1636. D. Laing (ed.), Historical notices of Scottish affairs, selected from the manuscripts of Sir John Lauder of Fountainhall 2 vols. (Edinburgh, 1848), vol. 1, 145. ERE, 1626–41, 64.

(107) G. Donaldson, Scotland: James V to James VII (Edinburgh, 1971), 5, 56.

(108) J. Goodare, ‘Fiscal feudalism in early seventeenth‐century Scotland’, Scottish History Society Miscellany XIII 5th series 14 (2004), 203.

(109) G. R. Hewitt, Scotland under Morton, 1572–80 (Edinburgh, 1982), 149.

(110) Ibid., 149–50. Again, these are officially recorded donations.

(111) ATS XII. Madden, ‘Feudal casualties’, 193, notes an earlier fiscal drive in the reign of James IV.

(112) NAS E28/389/17. I am grateful to Athol Murray for this information.

(113) Clerk and Scrope, Court of Exchequer, 168, 233. Variously put at £30–£50 in the seventeenth century, the normal ceiling was raised to £150 in the early eighteenth century.

(114) See NAS E2/27, 4 December 1607, for the joint suicide. There is another example in ATS VIII, 17.

(115) R. A. Houston and I. D. Whyte, ‘Introduction. Scottish society in perspective, 1500–1800’, in R. A. Houston and I. D. Whyte (eds.), Scottish Society, 1500–1800 (Cambridge, 1988) 1–36.

(116) In the first official lists of investigations of suspicious deaths (1848–57) the sex ratio for suicides was 224. NAS AD12/11–12. Strahan, Suicide and insanity, 177–8. The preponderance of males in escheats is towards the extreme end of the spectrum shown in other populations. Merrick, ‘Patterns of suicide’, 7, citing his own findings and others for eighteenth‐century France and Switzerland. Murray, Suicide, vol. 1, 380–5. For Geneva 1650–1798 the sex ratio was 245. Haeberli, ‘Le suicide’, 118. English studies using coroners' inquests cluster around 200. Butler, ‘Degrees of culpability’, 266. MacDonald and Murphy, Sleepless souls, 247. Bailey, Rash act, 125. However, P. E. H. Hair, ‘Deaths from violence in Britain: A tentative secular survey’, Population Studies 1 (1971), 15–16, offers historical estimates for England ranging from parity to 400.

(117) A. J. S. Gibson and T. C. Smout, Prices, food, and wages in Scotland, 1550–1780 (Cambridge, 1994), 298, 299, 305–6, 361, 364.

(118) Strictly speaking a ‘will’ was not a testament, but a state of dependence on the monarch's pleasure and also the judgment or penalty imposed on those who threw themselves on the king's mercy. Goodare, Government of Scotland, 125.

(119) NAS PS1/97, f. 50. CC14/5/2, 855–6.

(120) Balfour's practicks, 218–9. Stair's institutions, III.IV.24. Erskine, Institute, III.IX.3. J. I. Smith, ‘Succession’, in An introduction to Scottish legal history, 213. W. Alexander, The practice of the Commissary Courts in Scotland (Edinburgh, 1859), 18.

(121) Balfour's practicks, 217. J. Dowden, The medieval church in Scotland: Its constitution, organisation and law (Glasgow, 1910), 299–304.

(122) NAS CC8/8/53, 357–60.

(123) NAS E2/54, f. 145.

(124) NAS E2/37, f. 253 and CC8/8/50, f. 91. E2/56, f. 303 and CC8/8/60, 159–61. PS1/97, f. 50 and CC14/5/2, 855–6. PS1/70, f. 84v and CC8/8/33, 104–6. E2/54, f. 156v and CC8/8/52, 574–6. E2/19, f. 33v and CC20/4/5, 420.

(125) Bankton, Institute, III.III.19. This was recognized in the early seventeenth century. NLS Adv. MS. 24.1.11, f. 76 (case 263). Murray, ‘Notes on the treasury administration’, xxii.

(126) NAS E2/21 (17 April 1600). PS1/71, f. 188. CS15/77/36, Young v. Peirsoun (1600). In the case of a convicted witch half of the goods she held in common with her husband were forfeited. PS1/112, ff. 99–99v.

(127) Balfour's practicks, 217. L. A. Ewan, ‘Debt and credit in early modern Scotland: The Grandtully estates, 1650–1750’, (University of Edinburgh Ph.D., 1988), 161–2.

(128) NAS SC54/10/2/1/1. RH11/19/5, p. 32. D. M. Walker, A legal history of Scotland 7 vols. (Edinburgh, 1988–2003), vol. 4, 787.

(129) ECA SL1/1/11, ff. 232v–233.

(130) Goodare, ‘Fiscal feudalism’, 203–4.

(131) NAS E2/49, 19 June 1624. PS1/97, ff. 25v–26.

(132) RPCS XIII, 453, 488–9, 546–8. Morison, Dictionary, 5071. Goodare, Government of Scotland, 47. Anna or Anne Kerr later married Sir Robert's son William. Correspondence of Sir Robert Kerr, first earl of Ancram and his son William, third earl of Lothian (Edinburgh, 1875), 488.

(133) Seneca, Moral essays translated by J. W. Basore (London, 1964), vol. 3, 21.

(134) P. Bourdieu, Outline of a theory of practice translated by R. Nice (Cambridge, 1977), 5–9, 171–83.

(135) L. Hyde, The gift: Imagination and the erotic life of property (New York, 1979), 21, 37.

(136) Bourdieu, Theory of practice, 5–9, 171–83, 192.

(137) C. Muldrew, ‘ “Hard food for Midas”: Cash and its social value in early modern England’, P&P 170 (2001), 109.

(138) J. Cramsie, Kingship and crown finance under James VI and I (Woodbridge, 2002), 66.

(139) J. T. Godbout with A. Caillé, The world of the gift translated by D. Winkler (London, 1998), 202. Mauss wrote of an archaic ‘system of total prestations’ that united barter, commerce, and gift. Mauss, The gift, 39. In other words, gift exchanges are ‘total social phenomena’. Ibid., 3.

(140) M. Grinberg, ‘Dons, prélevements, échanges: À propos de quelques redevances seigneuriales’, Annales: Economies, Sociétés, Civilisations 43 (1988), 1413–32.

(141) Clerk and Scrope, Court of Exchequer, 233.

(142) NAS E2/19, 3 February 1587. Poverty was a standard reason for pardons to be granted in medieval England. Bellamy, Criminal trial, 138.

(143) Bankton, Institute, III.III.39. Gane, ‘Pardon in Scots law’, 22–3.

(144) NAS PS1/109, f. 78v.

(145) Stirling District Archives B66/9/4, ff. 75–82.

(146) In the Middle Ages those charged with using escheats to reward service were answerable to king and council. Nicholson, Scotland, 216. M. McGlynn, ‘Idiots, lunatics and the royal prerogative in early Tudor England’, JLH 26 (2005), 20, notes that royal servants made up ‘a large proportion of the grantees' of the custody of early Tudor idiots, where the possibilities of mal‐administration were greater than for lunatics.

(147) Davis, The gift, 87–95.

(148) NAS E2/9, 2 June 1581. PS1/73, f. 154v. RPSS IV, no. 3282. PS1/78, ff. 198v–199. PS1/97, ff. 25v–26. PS1/108, f. 98.

(149) Goodare, Government of Scotland, 145.

(150) Goodare, State and society, 288. Zulager, ‘Middle‐rank administrators’, ch. 3–4.

(151) For example, NAS E2/21, 1 May 1599 (Miller) and 10 October 1599 (Myln).

(152) This statement is based on comparison between royal servants listed among donatories and the analysis in Juhala, ‘Household and court’, ch. 2. Zulager, ‘Middle‐rank administrators’, 147–8.

(153) RPSS VIII, nos. 295, 510, 1459. NAS PS1/52, f. 148v. PS1/69, f. 123. PS1/71, f. 188

(154) ERE, 1589–1603, 12.

(155) NAS PS1/69, f. 123. ECA SL1/1/10, f. 134. Birrel, Diary, 44. ERE, 1589–1603, 193.

(156) Goodare, ‘Fiscal feudalism’, 203, believes that courtiers and their clients were well placed to buy casualties like wardships cheaply.

(157) For example, NAS CS7/186, f. 447v, Makesoun v. Paristoun (1600).

(158) As suggested by Erskine, Institute, II.V.58. The statutes cited are 1551 c. 7; 1579 c. 75; 1592 c. 145. An example is Thomas Dobbie: the original document in the month of his death in 1598, quickly assigned to Edinburgh's treasurer, and a second in 1613. NAS PS1/69, f. 232. CS7/173, ff. 393–4. E2/32, 10 April 1613. PS1/82, ff. 122v–123. See also F. J. Shaw, The northern and western islands of Scotland: Their economy and society in the seventeenth century (Edinburgh, 1980), 11–12.

(159) S. L. Waugh, The lordship of England: Royal wardships and marriages in English society and politics, 1217–1327 (Princeton, 1988), 194.

(160) Zulager, ‘Middle‐rank administrators’, 133–4, 147–54. Erskine, Institute, II.V.63. For a practical example, see Thomas Dobbie's case. NAS PS1/69, f. 232. E21/72, f. 21v. E2/32, 10 April 1613.

(161) NAS GD38/1/126. This is a backbond by John Murray, servitor to John, Earl of Mar, in favour of Anthony Murray of Raith and David Murray, his son, of their escheat of which he has received a gift from the crown, his name having only been borrowed thereto. Godfrey, ‘Arbitration’.

(162) Ross, Lectures on diligence, vol. 1, 209–11.

(163) Finlayson v. Jackson (1593) [Morison, Dictionary, 3613]. The judgment applied to all donatories since an act of 1579 c. 66 (APS III, 574–5), on which it was based. Bankton, Institute, III.III.25. G. J. Bell, A treatise on the law of bankruptcy in Scotland 2 vols. (Edinburgh, 1800, 1804), vol. 1, 113. Heirs could renounce rights to goods when the estate was so encumbered by debts as to mean the heir could be liable for them. Sheriff Court of Aberdeenshire, vol. 2, 299.

(164) R. Horrox, ‘Service’, in R. Horrox (ed.), Fifteenth‐century attitudes: Perceptions of society in late medieval England (Cambridge, 1994), 63.

(165) Zulager, ‘Middle‐rank administrators’, 107.

(166) Davis, The gift, 222.

(167) A. E. Komter, Social solidarity and the gift (Cambridge, 2005), 56–75.

(168) Bourdieu, Theory of practice, 6–7.

(169) Mauss, The gift, 3.

(170) J. Sinclair, General report of the agricultural state, and political circumstances, of Scotland 5 vols. (Edinburgh, 1814), vol. 1, 92, 189–90. Carrier, Gifts and commodities, 27.

(171) K. Wrightson, English society, 1580–1680 (London, 1982), 63–4.

(172) Offer, ‘Economy of regard’, 451–2.

(173) N. S. Kollmann, ‘The quality of mercy in early modern legal practice’, Kritika 7 (2006), 5–22. Peck, Court patronage, 12–29.

(174) For an indication of the similarly short time elapsed between death of a tenant and the royal escheator's inquest in medieval England see W. A. Morris and J. R. Strayer (eds), The English government at work, 1327–1336. Volume II: Fiscal administration (Cambridge, Mass., 1947), 121–3.

(175) Balfour's practicks, 219–21, 662–4. Ollivant, Court of the official, 71.

(176) Craig, Jus feudale, 1.17.16.

(177) W. Reid, ‘The origins of the office of the procurator fiscal in Scotland’, Juridical Review 10 (1965), 155.

(178) Goodare, State and society, esp. 254–85.

(179) Ibid., 66–101.

(180) P. Sahlins, Boundaries: The making of France and Spain in the Pyrenees (Berkeley, 1989), 9, 165.

(181) C. Herrup, ‘Punishing pardon: Some thoughts on the origins of penal transportation’, in S. Devereaux and P. Griffiths (eds), Penal practice and culture, 1500–1900: Punishing the English (London, 2004), 121–37. J. M. Beattie, ‘The royal pardon and criminal procedure in early modern England’, Historical Papers [Canada] (1987), 9–22. R. B. Shoemaker, Prosecution and punishment: Petty crime and the law in London and rural Middlesex, c.1660–1725 (Cambridge, 1991), 156–65. P. Carter, ‘Early nineteenth‐century criminal petitions: An introduction for local historians’, Local Historian 31, 3 (2001), 130–153.

(182) Clerk and Scrope, Court of Exchequer, 233.

(183) ATS XIII, 245, 387, 391. RPCS III, 191–2. M. Sanderson, Mary Stewart's people: Life in Mary Stewart's Scotland (Edinburgh, 1987), 91–101.

(184) ERS XXIII, 181.

(185) Laing, Historical notices, vol. 1, 145. The successful bidder was Robert Home, writer in Edinburgh. NAS PS3/3, 138. For other examples, see RPCS XI, 263. NAS E2/37, f. 282.

(186) R. A. Houston, ‘The economy of Edinburgh, 1694–1763: The evidence of the Common Good’, in S. J. Connolly, R. A. Houston and R. J. Morris (eds), Conflict and identity in the history of Scotland and Ireland from the seventeenth to the twentieth century (Preston, 1995), 45–62.

(187) RPCS IV, 219–20, 235. RPCS V, 760. Goodare, ‘Fiscal feudalism’, 191, 194–6.

(188) H. Arnot, A collection and abridgement of celebrated criminal trials in Scotland, from A.D. 1536 to 1784 (Edinburgh, 1785), 350.

(189) J. Finlay, ‘The early career of Thomas Craig, advocate’, Edinburgh Law Review 8 (2004), 300. Goodare, Government of Scotland, 161, 216–19.

(190) K. M. Brown, Bloodfeud in Scotland, 1573–1625: Violence, justice and politics in early modern society (Edinburgh, 1986), 276. C. Muldrew, The economy of obligation: The culture of credit and social relations in early modern England (London, 1998), 239.

(191) ATS VIII, 10, 17, 19, 85.

(192) ERS XIX, 472.

(193) RPCS II, 75.

(194) Hewitt, Scotland under Morton, 143–50.

(195) Goodare, Government of Scotland, 146–7. Remissions were seemingly processed through the Privy Council after 1603. Ibid., 125. Until 1906 they passed under the Great Seal. NAS JC24 and C9. Interestingly, Peck, Court patronage, 26, notes that English court clients only began to give money to patrons after 1603.

(196) A. Murray, ‘Exchequer, council and session, 1513–1542’, in J. H. Williams (ed.), Stewart style, 1513–1542: Essays on the court of James V (East Linton, 1996), 97–117.

(197) APS IV, 158–9. Goodare, State and society, 75–6.

(198) M. Wasser, ‘The privy council and the witches: The curtailment of witchcraft prosecutions in Scotland, 1597–1628’, SHR 82 (2003), 20–46. W. Makey, The church of the covenant, 1637–1651: Revolution and social change in Scotland (Edinburgh, 1979), 11–12. In contrast, Lederer, ‘Dishonorable dead’, 363, finds an association between witch trials and reported suicides in late sixteenth and early seventeenth‐century Germany.

(199) Russell, ‘British history’, 63.

(200) Goodare, Government of Scotland, 152, 158, 179–80.

(201) APS VI, part 2, 173. Makey, Church of the covenant, 76–9. J. Wormald, ‘Bloodfeud, kindred and government in early modern Scotland’, P&P 87 (1980), 92–4.

(202) Quoted in Wormald, ‘ “Princes and the regions” ’, 68.

(203) W. Cunningham (ed.), Sermons by the Rev. Robert Bruce, minister of Edinburgh. Reprinted from the original edition of MDXC and MDXCI (Edinburgh, 1843), 355.

(204) Wormald, ‘ “Princes and the regions” ’, 73, 79. J. W. Cairns, ‘Academic feud, bloodfeud, and William Welwood: Legal education in St Andrews, 1560–1611 part 2’, Edinburgh Law Review 2 (1998), 281–5. Goodare, Government of Scotland, 146–7. M. F. Graham, ‘Conflict and sacred space in Reformation‐era Scotland’, Albion 33 (2001), 371–87.

(205) S. M. Vance, ‘Godly citizens and civic unrest: Tensions in schooling in Aberdeen in the era of the Reformation’, European Review of History 7 (2000), 123–37.

(206) ‘Bankruptcy’ was not a formal legal term in Scotland, though it was widely used from the eighteenth century. A. D. Gibb, ‘Insolvency’, in An introduction to Scottish legal history, 222.

(207) Bankton, Institute, I.X.62–123 [vol. 1, 258–74]. D. Wilson, Memorials of Edinburgh in the olden time 2 vols. (Edinburgh, 1891), vol. 2, 5.

(208) R. K. Hannay (ed.), Acts of the Lords of Council in public affairs, 1501–54 (Edinburgh, 1932), 408.

(209) Murray, Early burgh organization, vol. 2, 515. APS II, 297 (1525 c. 6). APS II 342 (1535 c. 3). H. G. Graham, The social life of Scotland in the eighteenth century (London, 1937), 325–6. S. Ollivant, The court of the official in pre‐reformation Scotland (Edinburgh, 1982), 150–1. R. Robson, The English highland clans: Tudor responses to a medieval problem (Edinburgh, 1989), 146–7. A. B. Calderwood (ed.), Acts of the lords of council vol. 3 (Edinburgh, 1993), 256–7, 274. In 1686 Robert Callander, merchant in Falkirk, cursed the corpse of Christian Johnstone, who owed him money. G. I. Murray, Records of Falkirk parish 2 vols. (Falkirk, 1887), vol. 1, 238. The Kirk Session excused his ‘foolishness’ with a private warning. From a ‘modern’ secular, positivist viewpoint, Ross denigrated the ecclesiastical basis of pre‐1572 diligence. Ross, Lectures on diligence, vol. 1, 100–2, 269–73.

(210) APS III, 300. Murray, Early burgh organization, vol. 2, 515–16.

(211) APS IV, 615–16. APS X, 33–4.

(212) G. McKenzie [sic], Observations upon 28. Act, 23. Parl. K. James VI (Edinburgh, 1675), 204–5, paraphrased in Bankton, Institute, III.III.39. J. B. Kinnear, A comparison of the bankruptcy systems of England and Scotland, with reference to the proposed changes in England (London, 1858). W. Wallace, The law of bankruptcy in Scotland (Edinburgh, 1914), 14–23; D. C. Coull, The law of bankruptcy in Scotland (Edinburgh, 1989), 1.

(213) Quoted with modified spelling in McKenzie, Observations, 203–4.

(214) Dalrymple, Feudal property, 73. Bankton, Institute, III.III.25. Erskine, Institute, III.IX.45.

(215) Clerk and Scrope, Court of Exchequer, 193, 196. A backbond was a deed executed alongside an irredeemable conveyance, declaring it to be in trust only. See NAS E324/26–28, for bonds on gifts of escheats, 1708–47. For other examples, see SC54/17/2/47/1. GD246/4/975. GD137/4121.

(216) Wallace, Bankruptcy, 37–56.

(217) APS VII, 317–20. APS VIII, 351–2.

(218) APS VIII, 577. On the preference given to widows and children and its effects, see Bankton, Institute, III.III.24, 28, 39.

(219) APS IX, 198.

(220) Murray, Early burgh organization, vol. 2, 515–17. Ewan, ‘Debt and credit’, 87–113. Treiman,’ Escaping the creditor’. Goodare, Government of Scotland, 178. Ford, Law and opinion, 160–6.

(221) Manson, ‘Suicide as a crime’, 316. Anderson, Suicide, 220n. Escheat propter defectum sanguinis was not abolished in England until 1925. A. W. B. Simpson, An introduction to the history of the land law (London, 1961), 23. Coull, Bankruptcy, 1–3. An introduction to Scottish legal history, 445.

(222) NAS PS3/9, 395. 20 Geo. II c. 50 (Tenures Abolition Act, 1746) came into effect in March 1748.

(223) A. E. Anton, ‘Medieval Scottish executors and the courts spiritual’, Juridical Review 67 (1955), 129–54. Ollivant, Court of the official, 69–72. Goodare, Government of Scotland, 202–3. Post‐Reformation commissaries were neither fully secular nor fully ecclesiastical. An introduction to Scottish legal history, 366–71.

(224) Ollivant, Court of the official, 72.

(225) A. Watson, Legal transplants: An approach to comparative law (Edinburgh, 1974), 45.

(226) 12 Geo. III c. 72.

(227) Gibb, ‘Insolvency’, 222–6. Considerations upon a bankrupt law for Scotland (Glasgow, 1771). Observations and proposed improvements on the Scots bankrupt law (n.p. c.1772).

(228) Erskine, Institute, IV.IV.46. Bell, Dictionary, 953. Scots law allowed for the possibility that laws would pass into disuse because of changes in the context of the law. Forfeiture for felony was abolished in England in 1870.

(229) I am most grateful to Simon Taylor for his help in this regard.

(230) Brown, Bloodfeud, 7, 277.

(231) Quoted in J. M. Brown, ‘The exercise of power’, in J. M. Brown (ed.), Scottish society in the fifteenth century (London, 1977), 65.

(232) Brown, Bloodfeud, 17. J. Wormald, Lords and men in Scotland: Bonds of manrent, 1442–1603 (Edinburgh, 1985), 125.

(233) A. Grant, ‘Franchises north of the Border: Baronies and regalities in medieval Scotland’, in M. Prestwich (ed.), Liberties and identities in the medieval British Isles (Woodbridge, 2008), 174.

(234) NAS E2/27, 4 December 1607. RPCS VII, 270–1, 383, 411, 435, 670. J. W. Buchan and H. Paton (eds), A history of Peeblesshire 3 vols. (Glasgow, 1927), vol. 3, 429–30. RPCS IX, 164, 253, 336, 361, 397. RPCS X, 351. At an earlier date, possibly the 1450s, a James Tweedie of Drumelzier entered into a most unusual personal bond of manrent with the king. Wormald, Lords and men, 152. Pitcairn, Criminal trials, vol. 1, 353.

(235) This figure is higher than the sum of ‘burgess’ and ‘craft/trade’ because of the presence of other occupational groups like professionals among townspeople.

(236) Ford, Law and opinion, 161.

(237) APS II, 226–7.

(238) Godfrey, ‘Arbitration’, 110, 134–5, warns against dichotomizing between the private, informal justice of arbitration and the public, state justice of litigation; for example courts could provide arbitration.

(239) Goodare, Government of Scotland, 302.

(240) Ibid., 217–18, 256. S. Walker, ‘Order and law’, in R. Horrox and W. M. Ormrod (eds), A social history of England, 1200–1500 (Cambridge, 2006), 97, makes a similar point about high levels of litigation over debt in medieval English towns.

(241) D. Robertson, The bailies of Leith (Leith, 1915), 11–16. W. C. Dickinson (ed.), The court book of the barony of Carnwath, 1523–1542 (Edinburgh, 1937), lvii, cv–cvii.

(242) ERE, 1573–89, 146.

(243) ECA SL1/1/8, f. 190. ERE, 1573–89, 533.

(244) RPSS VI, no. 884.

(245) Grant, ‘Franchises north of the Border’, 161.

(246) Balfour's practicks, 557.

(247) Quoted in C. Agnew, The baron's court (Edinburgh, 1994), np.

(248) J. Cameron (ed.), The justiciary records of Argyll and the Isles, 1664–1705, vol. 1 (Edinburgh, 1949), 100–1. J. Imrie (ed.), The justiciary records of Argyll and the Isles, 1664–1742, vol. 2 (Edinburgh, 1969), 433–4, 436. P. G. B. McNeill (ed.), ‘Discours particulier d'Ecosse’, in W. D. H. Sellar (ed.), Stair Society Miscellany II (Edinburgh: 1984), 92.

(249) Walker, A legal history of Scotland, vol. 2, 666. Erskine, Institute, II.V.64, rehearses debate about whether right of escheat automatically fell to a lord of regality (Mackenzie) or whether it had to be explicitly granted (Stair). Baron courts survived in Scotland until abolished in 1948, but they were largely inactive by 1868, when a Law Commission found about 80 still in existence. PP LC 1868 Fourth Report, appendix II, no. 18.

(250) Murray v. Arnot (1674) [Morison 3634]. Young v. laird of Raploch (1680) [Morison 3635]. Fletcher v. Irvine (1628) [Morison 3633], which seems to go against this, was based on the source of the forfeited person's wealth rather than on pure residence. There is also a case from 1600 when the duke of Lennox's claims to forfeiture within his regality of St Andrews were balanced against those of the crown by Lennox's granting only goods in his regality to his donator. NAS CS7/186, f. 447v–448v, Makesoun v. Paristoun (27 June 1600). Quoniam Attachiamenta, ch. 48 [p. 342], a text designed for those who ran feudal or franchisal courts, states that when an intestate is condemned to death all movables pass to his lord once dead, but ‘if he has more than one lord, each will take the goods and stock found within his feu’. Bankton, Institute, III.III.20. Murray, Suicide, vol. 2, 74–5.

(251) Dalrymple, Feudal property, 236–47.

(252) A. V. Sheehan, D. R. Hingston and F. R. Crowe, Criminal procedure (Edinburgh, 1990), 1.24.

(253) For the modern situation see I. H. B. Carmichael, Sudden deaths and fatal accident inquiries: Scots law and practice (Edinburgh, 1993), 7.66.

(254) Glasgow also had few recorded suicides in the mid‐nineteenth‐century ‘reports of deaths’ compiled by the Crown Office. Crowther, ‘Crime, prosecution and mercy’, 226, points to ‘local economies’ inhibiting prosecution in early‐nineteenth‐century Lanarkshire, but the enduring nature of the pattern suggests some other jurisdictional reason.

(255) Aberdeenshire sheriff court, vol. 2, 351.

(256) Cameron, Justiciary records of Argyll, 100–1. NAS SC54/17/1/1, f. 140. Imrie, Justiciary records of Argyll, 433–4, 436. NAS SC54/17/2/54/3. SC54/10/2/1/1. I owe these references to Mr Frank Bigwood, who has been kind enough to share his unparalleled knowledge of this court's records.

(257) NAS E2/48 (31 July 1623). PS1/94, f. 189v. GD25/4/16E. The lord of this regality was Ann of Denmark, then her son Charles (I). Guide to the National Archives of Scotland (Edinburgh, 1996), 46. W. K. Coutts, The business of the College of Justice in 1600 (Edinburgh, 2003), 32.

(258) NAS GD248/97/4/2.

(259) NAS GD248/97/4/10.

(260) NAS GD248/97/4/14.

(261) Erskine, Institute, I.V.64.

(262) NAS SC54/10/2/1/1. RH11/19/5, p. 32. Lord Elcho, Scotch ‘law of hypothec’ (London, 1869). Erskine, Institute, III.IX.43. RPSS VIII no. 790. Debts owed to the landowner were conventionally listed first among liabilities in inventories post mortem.

(263) NAS GD248/167/10/37.

(264) For example, on the Loudoun estate in Ayrshire. HL LO8370 (9/1/1725).

(265) NAS GD248/589/2/107.

(266) Clerk and Scrope, Court of Exchequer, 193, 196.

(267) J. Bailey, ‘Voices in court: lawyers' or litigants'?’, Historical Research 74 (2001), 407.

(268) Douglas, Social meanings, 206–15. Murray, Suicide, vol. 1, 21, 27–9, 175. Both Prior, Social organization of death, 1, and S. Cooke, ‘A “dirty little secret”? The state, the press, and popular knowledge of suicide in Victoria, 1840s–1920s’, Australian Historical Studies 31 (2000), 306, point out the shortcomings in such assumptions.

(269) NAS CC8/8/10, 271.

(270) RPCS III, 561.

(271) Idem.

(272) NAS CC8/8/10, 272. M. MacDonald, Mystical bedlam: Madness, anxiety, and healing in seventeenth‐century England (Cambridge, 1981), 103–4, found that a third of those reporting psychological symptoms attributed them to the death of a spouse. See also R. Houlbrooke, Death, religion and the family in England, 1480–1750 (Oxford, 1998), 220–54, and Bailey, Rash act, 256–65, on loneliness, grief and bereavement.

(273) Clerk and Scrope, Court of Exchequer, 193. RPSS VIII, no. 1243.

(274) RPSS VIII, nos. 821, 1243, 2199. RPCS III, 560–1, 672. [Lord Kames], The decisions of the Court of Session from its first institution to the present time 2 vols. (Edinburgh, 1791), vol. 1, 254.

(275) NAS CS15/77/36, Young v. Peirsoun (1600).

(276) Juhala, ‘Household and court’, ch. 2. Zulager, ‘Middle‐rank administrators’, 91–7. He was also the recipient of an escheat of a kinsman in 1609. NAS E2/28, f. 118v.

(277) J. Finlay, ‘James Henryson and the origins of the office of king's advocate in Scotland’, SHR 79 (2000), 32–6.

(278) Ibid., 32.

(279) Finlay, ‘Thomas Craig’, 316.

(280) Coutts, College of Justice, 7. NAS CS7/186, f. 448, Makesoun v. Paristoun (27 June 1600).

(281) NAS CS7/186, f. 447v–448v, Makesoun v. Paristoun (27 June 1600). The regality of St Andrews had ceased to be part of the archbishopric in 1587 when annexed to the crown along with other church property.

(282) As a valet, Young had received a suicide's escheat in November 1581 and as an usher‐depute he received a wardship in March 1583. RPSS VIII, nos. 510, 1196. Young also received a £100 gratuity in 1581, suggesting that donations and payments were not the same thing. RPCS XIV, 359.

(283) NAS E2/19, f. 35.

(284) NAS PS1/69, f. 17.

(285) I. W. Schröder and B. E. Schmidt, ‘Introduction’, in I. W. Schröder and B. E. Schmidt (eds), Anthropology of violence and conflict (London, 2001), 13.

(286) D. Riches, ‘The phenomenon of violence’, in D. Riches (ed.), The anthropology of violence (Oxford, 1986), 3. P. C. Maddern, Violence and social order: East Anglia, 1422–1442 (Oxford, 1992), 9–12. S. D. Amussen, ‘Punishment, discipline and power: The social meaning of violence in early modern England’, JBS 34 (1995), 1–25.

(287) MacDonald and Murphy, Sleepless souls, 185. Murray, Suicide, vol. 1, 406, shows that 50% of medieval English suicides hanged themselves, 30% drowned, and nearly 20% used blades.

(288) Brown, Bloodfeud, 247–9.

(289) Riches, ‘Phenomenon of violence’, 2.

(290) J. M. Beattie, ‘Violence and society in early modern England’, in A. N. Doob and E. L. Greenspan (eds), Perspectives in criminal law (Aurora, Ont., 1985), 36.

(291) W. I. Miller, Humiliation and other essays on honor, social discomfort, and violence (London, 1993), 65. S. Carroll, ‘Introduction’, in S. Carroll (ed.), Cultures of violence: Interpersonal violence in historical perspective (London, 2007), 1–43.

(292) RPSS V, no. 784.

(293) F. Bound, ‘ “An angry and malicious mind”? Narratives of slander at the church courts of York, c.1660–c.1760’, History Workshop Journal 56 (2003), 61. P. Rushton, ‘Texts of authority: Witchcraft accusations and the demonstration of truth in early modern England’, in S. Clark (ed.), Languages of witchcraft: Narrative, ideology and meaning in early modern culture (London, 2001), 21–39.

(294) EUL Dk4.57, ‘Asphyxia IV: death by drowning’, ff. 67–67v. Lind, Selbstmord, 331, offers a similar suggestion for Schleswig and Holstein, but to explain why women were more likely there (as in England) to die by suffocation in water.

(295) NAS PS1/79, f. 160v.

(296) N. Z. Davis, Fiction in the archives: Pardon tales and their tellers in sixteenth‐century France (Cambridge, 1987).

(297) E. Goffman, Relations in public: Microstudies of the public order (Hardmondsworth, 1972), ch. 4. E. Goffman, ‘The nature of deference and demeanor’, American Anthropologist 58 (1956), 473–502. James Scott uses the phrase ‘public transcript’ more politically to describe an inferred agreement between rulers and ruled, where the former's right to rule was buttressed by the assertion that the protection of the latter was their main aim. M. J. Braddick and J. Walter, ‘Introduction. Grids of power: Order, hierarchy and subordination in early modern society’, in M. J. Braddick and J. Walter (eds), Negotiating power in early modern society: Order, hierarchy and subordination in Britain and Ireland (Cambridge, 2001), 5–8, 13–16.

(298) Goffman, Relations in public, 147.

(299) Ibid., 144, 147.

(300) A. L. Herman, ‘The language of fidelity in early modern France’, Journal of Modern History 67 (1995), 7.

(301) RPCS X, 787–8. See 1.4.4.

(302) H. Garfinkel, ‘Conditions of successful degradation ceremonies’, American Journal of Sociology 61 (1956), 421. Garfinkel used the phrase to express the solidarity gained by group participation in ‘status degradation ceremonies' against a miscreant. T. N. Bisson, ‘Medieval lordship’, Speculum 70 (1995), 748–9.

(303) R. Mousnier, ‘Les fidélités et les clientèles en France aux XVIe, XVIIe et XVIIIe siècles’, Histoire Sociale 15 (1982), 35–46. A. Harding, ‘The medieval brieves of protection and the development of the common law’, Juridical Review 11 (1966), 115–49. P. R. Hyams, ‘Warranty and good lordship in twelfth century England’, LHR 5 (1987), 437–503.

(304) J. Derrida, Given time 1: Counterfeit money translated by P. Kamuf (London, 1992), 16, 37. Carrier, Gifts and commodities, 190–206.

(305) Another and more explicit kind of remission or ‘respite’ enters into the Register of Signatures, letters waiving penalties for adultery. Gane, ‘Pardon in Scots law’, 28. On medieval remissions see Nicholson, Scotland, 569–70, and Murray, Suicide, vol. 1, 207–27. See R. Muchembled, La violence au village: Sociabilité et comportements populaires en Artois du XVe au XVIIe siècle (Turnhout, 1989), C. Gauvard, ‘De grace especial’: Crime, état et société en France à la fin du moyen age 2 vols. (Paris, 1991), M. Nassiet, ‘Brittany and the French monarchy in the sixteenth century: The evidence of the letters of remission’, French History 17 (2003), 425–39, and S. Carroll, Blood and violence in early modern France (Oxford, 2006), 214–33, for detailed discussion of French letters of remission. For Artois, Muchembled found that the granting of letters of remission varied according to the impetus to increase royal authority, with 301 cases 1386–1499, 927 for 1500–55, 536 in 1556–98 and 1,158 from 1599 to 1633. For colonial New England see J. Zanger, ‘Crime and punishment in early Massachusetts’, William and Mary Quarterly 3rd series 22 (1965), 471–7.

(306) Gane, ‘Pardon in Scots law’, 45. E. Troup, The Home Office (London, 1925), 55–6. Herrup, ‘Punishing pardon’, 127.

(307) A. Herbert, ‘Herefordshire, 1413–61: Some aspects of society and public order’, in R. A. Griffiths, Patronage, the crown and the provinces in later medieval England (Stroud, 1981), 113.

(308) NAS E2/9 (11 December 1581). The escheat went to his mother, the widow. J. Moir (ed.), ‘Register of burgesses of Burgh of Aberdeen, 1399–1631’, The Miscellany of the New Spalding Club, vol. 1 (Aberdeen, 1890), 90.

(309) Gane, ‘Pardon in Scots law’, 19–20. H. L. MacQueen, Common law and feudal society in medieval Scotland (Edinburgh, 1993), 61. Nicholson, Scotland, 430–1.

(310) Foucault, Discipline and punish, 92.

(311) Carrier, Gifts and commodities, 20.

(312) Wormald, Lords and men, 127, 157–60. England too. A. Curry and E. Matthews (eds), Concepts and patterns of service in the later Middle Ages (Woodbridge, 2000).

(313) Beattie, ‘Royal pardon’, 22. J. Oldham, ‘Truth‐telling in the 18th‐century English courtroom’, LHR 12 (1994), 95–121.

(314) K. J. Kesselring, Mercy and authority in the Tudor state (Cambridge, 2003), 131–35. K. J. Kesselring, ‘Mercy and liberality: The aftermath of the 1569 Northern Rebellion’, History 90 (2005), 213–35. A. L. Brown, The governance of late medieval England, 1272–1461 (London, 1989), 19–20.

(315) For example, in The peace‐maker: or, Great Brittaines blessing (London, 1618). STC attributes this to Thomas Middleton.

(316) Bourdieu, Theory of practice, 72.

(317) Stair's Institutions, III.III.16.

(318) Ford, Law and opinion, 389–96.

(319) Clerk and Scrope, Court of Exchequer, 192.

(320) Bankton, Institute, III.III.23.

(321) Ibid., III.III.24.

(322) Erskine, Institute, II.V.58. Diligence here may mean ‘attention’ and/or the enforcement of a legal obligation against the assets of debtors.

(323) Goodare, Government of Scotland, 145–6. Erskine, Institute, II.V.62.

(324) Ross, Lectures on diligence, vol. 1, 208 (emphasis in original).

(325) H. MacQueen, ‘Mackenzie's Institutions in Scottish legal history’, Journal of the Law Society of Scotland 29 (1984), 409–501.

(326) Erskine, Institute, II.V.58. The statutes cited are APS 1551 c. 7; 1579 c. 75; 1592 c. 145.

(327) M. J. Braddick, State formation in early modern England, c.1550–1700 (Cambridge, 2000), 88. M. Weber, The theory of social and economic organization translated by A. R. Anderson and T. Parsons (London, 1947), 297–389. Goodare, Government of Scotland.

(328) M. Ignatieff, ‘State, civil society and total institutions: A critique of recent social histories of punishment’, in D. Sugarman (ed.), Legality, ideology and the state (London, 1983), 190. The partly Weberian bases of Foucault's thought are discussed in D. Garland, ‘The rationalization of punishment’, in H. Pihlajamäki (ed.), Theatres of power: Social control and criminality in historical perspective (Jyväskylä, 1991), 96–115.

(329) D. Sayer, ‘A notable administration: English state formation and the rise of capitalism’, American Journal of Sociology 97 (1992), 1386–7. Goodare, Government of Scotland, 68.

(330) Maine, Ancient law, 113–70 (emphasis in original at p. 170), 304–66.

(331) P. Stein, Legal evolution: The story of an idea (Cambridge, 1980).

(332) Maine, Ancient law, 169.

(333) F. Pollock and F. W. Maitland, The history of English law before the time of Edward I 2 vols. (London, 1968), vol. 1, 616. S. D. White, ‘Maitland on family and kinship’, Proceedings of the British Academy 89 (1996), 91–113.

(334) Carrier, Gifts and commodities, 163–5, 192, 197, 211.

(335) F. Tönnies, Community and Society (Gemeinschaft und Gesellschaft) translated and edited by C. P. Loomis (East Lansing, Michigan, 1957).

(336) Makey, Church of the covenant, 1–15.