The Quality of Scottish Mercy: Royal Letters of Remission in Medieval Scotland
By Cynthia Neville
Paper given at the Canadian Society of Medievalists Plenary Session at the Congress 2012 of the Humanities and Social Sciences (2012)
Professor Cynthia Neville of Dalhousie University is one of the leading historians of medieval Scotland. In a plenary address for the Canadian Society of Medievalists, Professor Neville examines the development of pardons for political enemies and felons in late medieval Scotland, and how the concept of the King’s Peace differed between Scottish and English monarchs.
Neville notes that Scottish historians have been slow to examine this subject, partly because few source materials survive, and references to these topics are often scattered. Moreover, in the medieval Scottish system of justice, kings shared responsibility with the great barons of Scotland on capturing felons and adjudicating criminal matters.
The lecture begins with an account of how in 1308 Robert the Bruce pardoned William Earl of Ross, after the latter abandoned his support of Edward II of England and swore a solemn oath to the Scottish king. This is just one instance of Robert’s magnanimity towards former rebels in Scotland. While Robert’s actions were in part politically expedient, they also reflect an evolution in how Scottish monarchs dealt with their opponents. During the 11th and 12th centuries it was not uncommon for Scottish kings to maim or kill those who rebelled against them, by the 13th century we see gentler treatment of royal captives, such as imprisonment and eventual release. Neville notes that Alexander II and Alexander III were modelling their kingship on continental contemporaries, including more chivalric notions of kingship.
Alexander III was also making use of English concepts of royal justice, in particular the idea of the King’s Peace. Since the Scottish ruler was also Henry III’s son-in-law, and visited England during his reign, it is not surprising that he would be exposed to these concepts.
By the tenth and eleventh centuries the English monarchy exerted much control over administrative and legal policies. By the reign of Henry II, England had developed the idea that the crown had the exclusive right to pardon and mete out punishment.
Alexander III was intent on expanding the English notion of the King’s Peace into Scotland. He was giving personal protection to people, such as in 1251 for Bishop of Glasgow, where he strictly prohibited others from harming the Bishop’s people, with threat of forfeiture for those who broke it. In May 1263, Alexander put under his firm peace and protection the nuns of Coldstream, who before that were protected by the Earls of Dunbar. The Scottish king also extended his justice into the northern areas and islands around Scotland, which previously had been governed by the King of Norway.
Another important development in Scottish justice was the expanding use of royal pardons for criminal actions. As with the King’s Peace, the concept of royal pardons was greatly influenced by English law, where procedures related to pardon were well established by 13th century. Suspects could get letters of pardon, before or after a trial, from the king. Neville says that in later medieval and early modern England rulers used pardon as demonstartion of the crown’s authority and sovereignty and that “the exercise of pardon was a contract between the king and person.”
By the reign of David II (1329-1371), one can see evidence of the use of pardons in Scotland, but governmental records survive from only the late 14th and 15th centuries. One important factor in Scottish justice was the concept of assythment, which was the right of a victim or their family to seek compensation for injuries. This compensation would usually be a monetary payment, but could also end with the marriage of a daughter to the victim’s family.
While Scots had to make compensation to the victim or his family, they also had to satisfy the king too, which could mean going to trial and facing imprisonment or execution. But in practice, most criminal cases were resolved by the paying for a pardon from the king, which was usually done during the indictment period.
By the 15th century this practice had become very widespread and available to all levels of Scottish society, from the very rich to the very poor. Pardons were judged by how much wealth you had, so poor could get pardons for very cheap, such as few a shillings. Meanwhile, he great magnates of Scotland could expect to pay as much 30 000 or 40 000 pounds to pay for their pardon. A whole branch of the royal government was devoted to calculating how much one had to pay for their pardon.
Neville comments that this “really was a huge money making proposition” for the Scottish kings. For example, between 1473-1474 James III took 550 pounds from 60 remissions. This is also led to a growing outcry, from both the Scottish parliament and in popular literature from the period. The objection was that it corrupted justice and that the king was making too much money from it. Although Scottish Parliaments understood that this was a necessary revenue stream for the king, they did try to get prohibitions on the practice for a period of time, such as three years, but the criminals would just wait until that period to end then go out and get the pardons.
Neville’s research shines a light upon the system of medieval Scottish justice, and shows the similarities and differences between practices such as the King’s Peace and pardons between Scotland and its southern neighbour.
Cynthia Neville’s newest publication, Regesta Regum Scottorum, Vol. IV, Part 1: The Acts of King Alexander III of Scotland, 1249-1286 is being published by Edinburgh University Press in June 2012