Lennox’s letter had alerted Elizabeth to the fact that Bothwell might well escape justice. If, as rumour had it, the Anglophobic Bothwell married Mary, there was a real risk that he would revive the Auld Alliance with France, to England’s despite. From now on, therefore, the objectives of Elizabeth and her ministers were simple: they were determined to prevent any marriage between Mary and Bothwell, and they would continue to press for the punishment of Darnley’s murderers. To this end, they began to foment disorder in Scotland and inflame public opinion against Bothwell. Bedford, the Governor of Berwick, was ordered to cultivate any man who was disposed “to stand fast for the maintenance of God’s honour and for the punishment of the late murder” and was to “comfort” all those “who seem to mislike Bothwell’s greatness,” and encourage them to unite against him.54At all costs, the fragile Anglo-Scots entente must be preserved, and any marriage between Bothwell and the Queen prevented.
21
“THE CLEANSING OF BOTHWELL”
THERE IS NO EVIDENCE, APART from the later libels of Lennox and Buchanan, that Mary was involved in an illicit affair with Bothwell at this time. Had she been carrying on so blatantly with him in the way Buchanan described, Drury—ever avid for malicious gossip—would have got to hear of it. Nevertheless, Mary’s increasing reliance upon Bothwell, and the favour she had shown to him since Darnley’s murder had given rise to speculation that she would marry him. She must have been aware of this speculation, and of the fact that Bothwell’s wife had filed for divorce, but that does not mean to say that she meant to marry him, as her enemies later alleged; in fact, events would show rather the opposite.
In the minds of many, Mary’s association with the man who was the chief suspect in Darnley’s murder, and the rumours of her conduct during what was supposed to be her mourning period, condemned her as being as guilty as he, and her failure to heed the warnings of her friends to bring him to justice and pursue his accomplices had exposed her to growing public opprobrium. That she was ill, both in mind and body, and therefore predisposed to lean upon a strong man who offered her succour and had doubtless convinced her of his innocence, was not widely known. Countless monarchs had connived at murder, but most had played the game by the rules and executed a few scapegoats to appease public opinion. Mary, almost certainly being innocent, did not realise what was required of her, and was too scrupulous to accuse those whose guilt was merely the subject of rumour and calumny, even though it was in her interests to do so.
By contrast, Darnley’s reputation—never very good during his lifetime— had been miraculously rehabilitated, as people remembered his youth and his terrible end. The crimes he had committed were forgotten, as was his unpopularity. Ironically, he, a Catholic who had plotted the overthrow of the Protestant establishment in Scotland, became a tragic figurehead in their conspiracy against Bothwell, which is the measure of the success of the propaganda campaign against Bothwell and the Queen.1Had Mary acted decisively at this point, she could have saved her reputation and her throne. But she did not, and, for reasons of their own, her chief advisers did not press the matter, and may well have blocked any attempts on the Queen’s part to institute a more rigorous inquiry into the murder. Without their support and help, her hands were tied.
Even if Mary was convinced of Bothwell’s innocence, as seems likely, she must have realised that Darnley’s murder had been planned by people in high places with a vested interest in getting rid of him. There is no evidence that she suspected Morton and the Douglases, but they would have been obvious suspects, since Darnley had betrayed them and Scottish nobles were renowned for their vengeful blood feuds. Neither is there any evidence that, at this stage, Mary believed that Moray and Maitland were behind the murder, although, given what had happened at Craigmillar, she may have had her suspicions. It would have taken a less scrupulous and more ruthless statesman than she to bring any of these Lords to justice, and, lacking any hard evidence against them, Mary was not the person to risk falsely accusing them. It is uncertain anyway that she was capable of decisive action at this time, and her incapacity made it possible for Bothwell and her other Councillors to bend her to their will.
According to Sir John Forster at Alnwick,2on 10 April 1567, Lennox, having left Glasgow with 3,000 men of his affinity, arrived at Linlithgow, only to be informed that he was permitted to take just six supporters with him to Edinburgh, where Bothwell’s trial was to take place two days hence. This was quite correct: the law allowed the accused to appear at the bar with four attendants, while six were permitted to the accuser. But Lennox had also heard that Edinburgh was already packed with 4,000 of Bothwell’s armed supporters, and believed it would be suicide for him to set foot in the city. This is where the Queen’s inertia showed to her greatest disadvantage for, had she been in control, she should have ensured that the law applied to Bothwell too. But the indications are that she was by now somewhat intimidated by Bothwell, and powerless, in her weakened state, to gainsay him. Thus she laid herself open to accusations of collusion.
Too late, Lennox appealed to his new ally, Moray, for advice, but Moray had already left for England. Lennox therefore decided to send a protest that he dared not enter Edinburgh for fear of his life, and on the following day, he fell back on Stirling.
From there, he wrote to the Queen, alleging that he was ill and unable to travel to Edinburgh to accuse Bothwell, and asking her to imprison the accused and postpone the trial, that he might have “sufficient time” to obtain such evidence as the truth shall be known. Otherwise the suspect persons continuing still at liberty, being great at court and about Your Majesty’s person, comforts and encourages them and theirs, and discourages all others that would give evidence against them. So that, if Your Majesty suffer this short day of law to go forward, I assure Your Majesty you shall have no just trial.
Lennox also asked Mary to invest him with the power to arrest “such persons as he should be informed were present at the murder of his son.”3These were entirely unreasonable demands: Lennox had urged an early trial, and was now complaining about it; he was also demanding the imprisonment of men who had not yet been found guilty, and against whom no shred of evidence had come to light, as well as the right arbitrarily to apprehend those whom he, a mere private subject, suspected. Not surprisingly, his requests were ignored, and he had no choice but to retreat to Glasgow.
At 6 a.m. on 12 April, Queen Elizabeth’s messenger, John Selby, Provost Marshal of Berwick, arrived at Holyrood with her letter urging a postponement of Bothwell’s trial, only to be informed that Queen Mary was not to be disturbed at this early hour.
He therefore returned between 9 and 10 a.m., “when all the Lords and gentlemen were assembled taking their horses,” ready to ride to the Tolbooth. “Then, thinking his opportunity aptest,” he tried to enter the palace, only to find that Bothwell’s followers had guessed his mission and were bent on denying him entry “in very uncourteous manner, not without some violence offered.” Selby, “seeing he could not be permitted to have recourse, as all other persons, whatsoever they were, he requested that some gentleman of credit would undertake faithfully to deliver his letter to the Queen, which none would seem to undertake.”
Thomas Hepburn, Parson of Oldhamstocks, presently appeared, “who told him that the Earl Bothwell had sent him with this message, that the Earl, understanding he had letters for the Queen, would advise him to retire him to his ease or about some other his business, for the Queen was so molested and disquieted with the business of that day, he saw no likelihood of any meet time to serve his turn till after the assize.” Cockburn of Skirling then came out, and “took occasion to reprehend and threaten” Selby “for bringing English villains as sought to procure the stay of the assize, with words of more reproach.”
At that moment, Bothwell emerged with Maitland, and “all the Lords and gentlemen mounted on horseback.” Maitland came over to Selby, “demanding him the letter, which he delivered. The Earl Bothwell and [Maitland] returned
to the Queen and stayed there within half an hour, the whole troop of Lords and gentlemen still on horseback attending his coming.” When they returned, Maitland “seemed willing to have passed by Selby without any speech, but he pressed towards him and asked him if the Queen’s Majesty had perused the letter, and what service it would please Her Majesty to command him back again.” Maitland answered that, “as yet, the Queen was sleeping, and therefore he had not delivered the letter, and that there would not be any meet time for it till after the assize,” and told Selby to wait. Just at that moment, however, a servant of du Croc, who was standing beside Selby, pointed up to where the Queen and Mary Fleming were looking out of a window.4Maitland had obviously been lying, but it is unlikely that he showed Mary the letter, for he and Bothwell both had good reasons for wanting the trial to be over before Lennox could track down further witnesses. Nevertheless, the treatment meted out to Queen Elizabeth’s emissary had outrageously breached diplomatic niceties, and there was now no chance of any postponement.
“So, giving place to the throng of people that passed, which was great and, by the estimation of men of good judgement, above four thousand gentlemen besides others, the Earl Bothwell passed with a merry and lusty cheer, attended on with all the soldiers, being two hundred, all arquebusiers, to the Tolbooth.”5
The record of Bothwell’s trial is missing from the official archive known as the Books of Adjournal, but a copy survives in the hand of Justice Clerk Bellenden.6Argyll presided, as Justice-General, and he and Huntly were the chief judges,7being attended by four assessors, Lindsay, Robert Pitcairn, Commendation of Dunfermline James MacGill and a Protestant lawyer, Henry Balnaves.8The jury was composed of Andrew Leslie, Earl of Rothes; George Sinclair, Earl of Caithness; Gilbert Kennedy, Earl of Cassilis; Lord John Hamilton, second son of Chatelherault; James, Lord Ros; Robert, Lord Sempill; John Maxwell, Lord Herries; Laurence, Lord Oliphant; John, Master of Forbes; John Gordon of Lochinvar; Robert, Lord Boyd; James Cockburn of Langton; John Somerville; Mowbray of Barnbougle and Lord Ogilvy of Boyne.9
Buchanan claims that the judges were “picked out to acquit,” but this was hardly a packed jury; according to Bothwell’s own account, “there were some who were more enemies than friends.” Blackwood says they were all of Moray’s faction, but while this is certainly true of Argyll and the assessors, it is an exaggeration in the case of the jury. Rothes, Boyd, Sempill, Forbes and Herries were all at one time or another at odds with Bothwell, or his active enemies, while Hamilton, like Herries, was a staunch Queen’s man, and hated Bothwell for his treatment of Arran. Caithness was Moray’s adherent. The rest were either friendly towards Bothwell or neutral. Morton had craftily excused himself from the jury on the grounds that the King was his kinsman. Lennox’s representative, Robert Cunningham, did not object to any of the jurors.10
The trial lasted seven hours, from noon to 7 p.m. The proceedings opened with the Queen’s advocates producing her letter of 28 March summoning Lennox to bear witness against the accused, then Bothwell’s indictment was read out, accusing him of being “art and part of the odious, treasonable and abominable slaughter” of the King on 9 February last; Buchanan later pointed out that this should have read 10 February, and asserted that the error had been made intentionally in the knowledge that Bothwell could not have been found guilty of a murder committed on the 9th.11 Bothwell then chose two procurators (attorneys), David Borthwick and Edmund Hay. Lennox was called, but his servant Robert Cunningham appeared in his stead, and, declaring that his master’s absence was through fear for his life, lodged a protest that Lennox had not been given sufficient time to prepare his case, and therefore any judgement given by the assize would be in error. Bothwell’s procurators answered that Lennox had desired a “short and summary process,” and produced his letters to prove it, as well as the Order in Council and the Queen’s letter showing that she had complied with this request.
Cunningham produced copies of Lennox’s letters to the Queen, including the one naming Bothwell, Balfour and others as the chief suspects. This was the only evidence offered for the plaintiff, and of course it amounted to nothing. Bothwell claims that he “brought forward” his “own sound witnesses to testify where I had been on the night in question,” and that their evidence was upheld, but there is no mention of them in the official record. The jury retired from the court, “and after long reasoning had by them upon the said dittay and points thereof, they [returned and] acquitted the said James, Earl of Bothwell of art and part of the slaughter of the King, and by their chancellor [foreman], Caithness, protested that no evidence in its support had been brought by the pursuer.” Buchanan states that, despite the verdict, the court had conceded that, “if anyone should later accuse [Bothwell] in proper form and law, this trial would be no impediment.”
Despite de Silva’s assertion that most jurors refused to vote “as they considered the trial was not free,”12Melville later stated that the jurors had acquitted Bothwell, “some for fear, some for favour, and the greatest part in expectation of advantage.” In a letter to Sir Nicholas Throckmorton,13Robert Melville afterwards expressed the view that Bothwell had overawed the assize at his trial, and Drury alleged that the Earl’s arquebusiers “kept the door that none might enter but such as were more for one side than the other.”14 The presence of Bothwell’s huge following was certainly intimidating, but even if they had not been there, the outcome would have been the same, for no evidence had been offered against him. Yet the whole affair was undoubtedly a travesty of justice, for had Lennox been granted the time he needed to procure witnesses and evidence, he might well have constructed a better case against Bothwell. But too many people were determined that that should never be allowed to happen. Leslie claims that Morton, Sempill and Lindsay, “with their adherents and affinity, especially procured, and with all diligence laboured, his purgation and acquittal.” As only Sempill sat on the jury, this suggests that these three were perhaps behind Bothwell’s intimidation of Lennox prior to the trial.
Bothwell walked from the Tolbooth a free man. The Court Recorder wrote that the Earl “was made clean of the said slaughter, albeit that it was heavily murmured that he was guilty thereof,”15and the general opinion was that he had not been “cleansed of the crime, but, as it were, washed with cobbler’s blacking.”16According to Buchanan, after “this jolly acquittal,” “suspicion was increased and retribution seemed only to be postponed.”
Having named Morton, Ruthven, Lindsay, Sempill, Maitland and MacGill as “some who were more enemies than friends,” Bothwell states that, “when my enemies and other opponents heard that I had been completely acquitted and had won the day, they at once came round begging me not to proceed against them for all the false charges they had brought against me. But their words did not reflect in any way the thoughts in their hearts, as I have since had reason to know.”17Their support during his trial, which had been given in the interests of their own self-preservation, had led Bothwell to believe that they were still his allies.
As he left the Tolbooth, Bothwell defiantly “fixed a cartel to the door,” on which was written a challenge, “wherein he offered to fight in single contest against any gentleman undefamed that durst charge him with the murder.”18 He then sent a town crier around Edinburgh to proclaim the verdict and had placards and letters bearing his own seal and repeating his challenge posted around the city, daring all comers to meet him in combat to “be taught the truth.”19
Bothwell claims that “not a man took up my challenge,” but in fact, on the following day, he received three anonymous answers: one calling him “the chief author of the foul and horrible murder,” while the second named James, Robert and Gilbert Balfour, Archibald Beaton, Spens, Borthwick and Sandy Durham as devisers with him of the murder, and Ormiston, Beanston, Hepburn, Hay, the Blackadders, Cullen, Wilson and four others as active accomplices; at the foot of this were three lines linking Mary with Bothwell in murder and adultery:
Is it not enough the poor King is
dead,
But the wicked murderers occupy his stead,
And double adultery has all this land shamed?
The third answer, which was stuck to the Mercat Cross, stated, “There is none that professes Christ and His Evangel that can with upright conscience part Bothwell and his wife, albeit she prove him an abominable adulterer and worse, as he has murdered the husband of her he intends to marry, whose promise he had long before the murder.”20
Since these answers were all anonymous, there was nothing that Bothwell could do about them.
On 14 April, Parliament met. The Queen was not present on this occasion,21 but two days later, she made her first public appearance since Darnley’s death, going in procession to the Tolbooth, accompanied by Argyll, Morton, Huntly, Bothwell and others, and surrounded by arquebusiers instead of the bailies of Edinburgh, as was customary. Bothwell, as Lord Admiral, rode before the Queen, bearing her sceptre. Melville says that, having been acquitted, Bothwell “remained still the greatest favourite at court,” and when Parliament appointed the Lords of the Articles, who were responsible for preparing the business of the Estates, his name was among them, along with those of Morton, Argyll, Huntly and twelve others.22
Parliament’s business began in earnest on the 17th. Dunbar Castle was formally secured to Bothwell as a reward for his great and manifold service to the Crown, but there is no record of his acquittal being ratified, as he later asserted in his memoirs.23