Punishing the dead?: Suicide, Lordship, and Community in Britain, 1500-1830

PUNISHING THE DEAD? S U IC ID E, LORDSHI P, AND COMMUNIT Y I N B R I TA I N , 1 5 0 0 – 1 8 3 0 OXF O R D H I S TO R ...

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PUNISHING THE DEAD? S U IC ID E, LORDSHI P, AND COMMUNIT Y I N B R I TA I N , 1 5 0 0 – 1 8 3 0

OXF O R D H I S TO R I C A L M O N O G R A PH S Editors

.  . . .  .  .  .  . .  . - . . 

Punishing the Dead? Suicide, Lordship, and Community in Britain, 1500–1830 R . A . H O U S TO N

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Great Clarendon Street, Oxford   Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With ofﬁces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York  R. A. Houston 2010

The moral rights of the authors have been asserted Database right Oxford University Press (maker) First published 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available Typeset by Laserwords Private Limited, Chennai, India Printed in Great Britain on acid-free paper by CPI Antony Rowe, Chippenham, Wiltshire ISBN 978–0–19–958642–4 1 3 5 7 9 10 8 6 4 2

Acknowledgements I wish to thank the following for their help in identifying and interpreting the diverse and often difﬁcult sources in which historic suicides are found: Jean Barclay, Amanda Bevan, Mike Barfoot, Frank Bigwood, Chris Brooks, John Cairns, Christine Churches, Margaret Cox, Faramerz Dabhoiwala, Gordon Desbrisay, David Everett, John Finlay, Willie Gillies, Gordon Glasgow, Mark Godfrey, Julian Goodare, Bob Harris, John Harrison, Steve Hindle, Richard Hoyle, Amy Juhala, Krista Kesselring, Anne-Marie Kilday, Peter King, Brian Levack, Fiona Kisby Littleton, Morrice McCrae, John McIntosh, Alistair Mann, Peter Marshall, Jeffrey Merrick, Erik Midelfort, Athol Murray, Cynthia Neville, Myron Noonkester, Cathy Paterson, Jenny Platten, Wilf Prest, Pete Rushton, Esther Snell, Sandy Stewart, Clodagh Tait, Simon Taylor, Susan Whyman, Louise Yeoman, and ﬁnally the staff at record ofﬁces and libraries in Britain, Ireland, and the United States. I am profoundly grateful to the Trustees of the Leverhulme Foundation for awarding me the Major Research Fellowship that made this book possible. Early funding for a pilot project was also provided by the Carnegie Trust for the Universities of Scotland. The British Academy’s Overseas Grants Scheme allowed me to air my ideas on the law of suicide before a friendly and stimulating audience at the American Society for Legal History. I have also beneﬁted from giving two papers to the similarly congenial and demanding Scottish Legal History Group. Andrew Burt read through the last draft of the manuscript and helped save me from myself; this is surely true friendship. Despite holding down a high-powered and demanding job, Veena read through the book at various stages, her shrewd perceptions forcing me to think about what I say and how I say it; this is surely true love.

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Table of Contents Introduction

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The Argument Historiography: English Suicide, French Inf luences, and the Politics of Modern Historians Social-Science Approaches to Suicide Investigating Sudden Death in the Past: the Institutional Contrasts between Scotland and England British History and the Geographical Perspective of the Study Deﬁning and Describing Self-Murder in the Past

1 7 13 16 19 22

PART 1: PUNISHING THE DEAD Introduction: Penalties Against Suicide in Britain and on the Continent 1. Forfeiture in Scotland 1.1 Sources and Approaches: Forfeiting and Granting the Suicide’s Goods in Scotland 1.2 Scots Law and Suicide: A Distinctive Path 1.3 The Workings of Forfeiture: Who was Forfeited, What was Lost, and Who Gained? 1.4 Donations of Forfeitures: Gifts, Service, and the Value of Generosity in Social and Political Life 1.5 Politics and the Law: the Rise and Fall of Forfeiture, c.1550–1650 1.6 The Political Geography of Suicide: Correcting Lordship in Town and Country 1.7 Informal Remedies and the Interventions of Lords 1.8 Denying Suicide: the Responses of Some Survivors 1.9 How Violent was Scottish Suicide? Illegitimate Death and the Legitimacy of Forfeiture 1.10 Conclusion: Enforcing Authority in an Age of Political and Social Change

27 30 30 36 44 53 63 71 77 79 83 88

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Table of Contents

2. Forfeiture in England and Wales 2.1 Dealing with Suicide: Lords and People 2.2 Forfeiture, Law, and Conscience: Lordship and Community in an Age of Legal Change, c.1530–1700 2.3 The Royal Almoner as an Enforcer of Christian Charity 2.4 Through a Glass Darkly: the Financial Side of Forfeiture 2.5 The Almoner’s Accommodations: Arbitration, Mediation, and Delegation in the Affairs of Suicides 2.6 Almoner and People Before the Law: Survivors in the Central Courts 2.7 Concealing and Revealing Suicide: the Strengths and Limitations of Early Modern Government and Local Community 2.8 Competing Lordship: the Rights of Almoners and Other Franchisees 2.9 Competing Franchises, Contesting Lordship 2.10 Urban Corporations as Collective Lords 2.11 Territorial Lords and the Process of Forfeiture 2.11a Deodands and Strict Liability: The Legal and Lordly Signiﬁcance of Forfeiture 2.11b Lord and Tenant: Negotiating Dominance and Dependence 2.11c Good and Bad Lordship: The Limits of Lordly Lenience

2.12 Felo de se and Non Compos Mentis Verdicts: a Conundrum Resolved 2.13 Conclusion: Charity, Law, and Lordship in a Changing Society 3. Burial Practices 3.1 Introduction: Desecration and Denial in the Burial of Suicides 3.2 Comment on the Prevalence of Profane Burial in England from the Sixteenth to the Twentieth Century 3.3 Burial and the Law in England: Constraints on Clergy and People 3.4 English Burial Practices: Dealing Selectively with the Dangerous Dead 3.5 The Micro-Politics of English Burial: Negotiating the Treatment of Murderers of Themselves 3.6 The Differences Between Suicide Burials in England and Scotland 3.7 Religious Ritual and Burial: the Simplicity of Scottish Calvinism 3.8 Movement and Location: the Mobile Lives of Scottish Corpses

95 95 100 113 120 124 132 135 141 147 150 155 155 160 171 175 181 189 189 190 195 199 204 211 212 215

Table of Contents 3.9 The Politics of Burial: Competing Values in the Treatment of Scottish Suicides 3.10 Conclusion: the Political Lives of Dead Bodies 4. Corporal Punishment 4.1 The Workings of Justice: Inventiveness in Punishments and the Creation of Culprits in Early Modern Europe 4.2 Ofﬁcial Sanctions Against the Corpses of Suicides: Shaming the Dead in Scotland, c.1560–1700 4.3 Explaining Off icial Punishments in Jacobean and Later Scotland 4.4 Beyond Courts and Officials: Popular Desecrations of Suicides’ Bodies in Scotland, c.1600–1820 4.5 Avoiding Sanctions: the Suicide of Convicts and New Ideas of the Body in Eighteenth-Century Scotland 4.6 Corporal Punishment in England: the Peculiarities of the North 4.7 Conclusion: Legal Change, Law Enforcement, and the Limitation of Latitude in Punishment 5. Conclusion to Part 1 5.1 Why Punish the Dead? 5.2 Attempted Suicide and the Purposes of Intervention 5.2a ‘It is not even a misdemeanour to attempt suicide in Scotland.’ Rehabilitating and protecting the suicidal 5.2b Ordering and policing in England: silence in the sources before the nineteenth century

ix 218 222 226 226 229 235 240 246 251

261 268 268 271 271 277

PART 2: UNDERSTANDING THE DEAD 6. The Secularization of Suicide 6.1 Introduction: a French Model, and Attitudes Towards British Suicide 6.2 The Devil, the Law, and Suicide 6.2a The place of the Devil in understanding English suicide 6.2b Law, super-nature, and the absent Devil in Scotland

6.3 The Strategic Value of Suicide as a Political and Religious Exemplar in Scotland 6.4 Suicide, Hope, and Despair: the Spiritual Experience of Scottish Calvinists 6.5 Suicide and Religion in the Enlightenment

285 285 288 288 292 301 305 313

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Table of Contents 6.5a English sermons: medicine and law in the service of religion 6.5b Scottish philosophy and religion: the marginality of suicide in the age of Hume

6.6 Conclusion: Hybrid Understandings in a Religious Age 7. Newspapers and Public Opinion: Neutralizing Suicide? 7.1 Introduction: Newspapers in Northern Britain, c.1700–1830 7.2 Reporting Suicide in the English Press: Moral Messages in the Enlightenment 7.2a Trends over time 7.2b Fact and truth in the making of news: the social and spatial selectivity of reporting 7.2c Rhetoric, gender, and the limits of sympathy in the Enlightenment

313 317 323 325 325 329 329 331

341 7.3 Reporting Suicide in the Scottish Press: the English Pattern Writ Small 348 7.4 Conclusion: Public Opinion and the Boundaries of the Moral Community 357 Conclusion: National, Regional, and Local Histories Coda: When did Suicide Become Acceptable? Select Bibliography

362 371 377

List of Figures 1. Distribution by decade of escheated suicides in Scotland, 1550–1759 2. Account for the burial of a suicide at Berwick-upon-Tweed, 1765 3. Distribution by decade of suicides from the six northern counties in the Newcastle Courant, 1711–1819 4. Distribution by decade of suicides from the six northern counties in the Cumberland Pacquet, 1780–1819

67 200

330

5. Distribution by decade of suicides in the Aberdeen Journal, 1750–1819

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List of Tables 1. Donatories of escheated suicides in Scotland, 1550–1764 2. Status of escheated suicides (both sexes) in Scotland, 1550–1764 3. Geographical distribution of escheated suicides in Scotland, 1550–1764 4. Means of death among Scottish individuals who committed suicide resulting in escheat, 1550–1764 5. Occupation or status of attempted and successful suicides reported in the Newcastle Courant, 1733–1824 and Cumberland Pacquet, 1774–1824

45 50 71 83 335

Abbreviations AJ ACA AHR AJLH APC APS ATS BA BL BRO C&C CM CP CRO DNB DUA EA ECA EcHR EEC ER EHR ERE ERS EUL GCA GC GJ HL JBS JLH LHR NA NAS

Aberdeen Journal Alnwick Castle Archives American Historical Review American Journal of Legal History Acts of the Privy Council Acts of the Parliaments of Scotland Accounts of the Lord High Treasurer of Scotland Berwick Advertiser British Library Berwick-upon-Tweed Record Ofﬁce Continuity and Change Caledonian Mercury Cumberland Pacquet Cumbria Record Ofﬁce Oxford Dictionary of National Biography Durham University Archives Edinburgh Advertiser Edinburgh City Archives Economic History Review 2nd series Edinburgh Evening Courant English Reports English Historical Review Extracts from the records of Edinburgh Exchequer Rolls of Scotland Edinburgh University Library Glasgow City Archives Glasgow Courant Glasgow Journal Huntington Library Journal of British Studies Journal of Legal History Law and History Review National Archives National Archives of Scotland

xiv NC NH NLS NLW NRAS PP P&P RO RPSS RPCS SAUL SH SHR TCWAAS TRHS TWA

Abbreviations Newcastle Courant Northern History National Library of Scotland National Library of Wales National Register of Archives for Scotland Parliamentary Papers Past and Present Record Ofﬁce Register of the Privy Seal of Scotland Register of the Privy Council of Scotland St Andrews University Library Social History Scottish Historical Review Transactions of the Cumberland & Westmorland Antiquarian & Archaeological Society Transactions of the Royal Historical Society Tyne and Wear Archives

Legal abbreviations can be found in D. Raistrick, Index to legal citations and abbreviations (London, 1993). Unfamiliar Scottish legal terms are explained in S. R. O’Rourke, Glossary of legal terms (Edinburgh, 2004). Until the eighteenth century Scotland did not use the pound sterling extensively: unless otherwise stated any mention of a pound (£) in connection with Scotland is to a Scottish pound, worth approximately one twelfth of a pound sterling. Those who wish a crash course in Scottish history may ﬁnd helpful my Scotland: A very short introduction (Oxford University Press, 2008).

The Reason of a Thing is not to be enquired after, till you are sure the Thing it self be so. We commonly are at [What’s the Reason of it?] before we are sure of the Thing. John Selden, Table-talk, being discourses of John Seldon, Esq or his sense of various matters of weight and high consequence, relating especially to religion and state (London, 1696), 154.

I am always wishing that I knew Scotland. I believe that he who knew it would be able to speak some decisive words about English affairs. F. W. Maitland to George Neilson (9 May 1897) in P. N. R. Zutshi (ed.), The letters of Frederic William Maitland, vol. 2 (London, 1995), no. 145.

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Introduction T H E A RG U M E N T ‘The dead, whatever the manner of their death, stand in as pretexts to talk about the living.’¹ So wrote Richard Cobb, and this study follows his lead by analysing a single event, a person’s taking of their own life, in multiple ways that locate the act in its social, political, cultural, and legal milieux. In his recent magisterial study of medieval Europe, Sandy Murray sees suicide as ‘an odd man out’, the exceptional that illuminates the conventional.² There is truth in this, for the way self-murderers were treated in the historic past is utterly strange to modern observers. Suicide was a crime, and the bodies of ‘murderers of themselves’ could be subject to desecration and shaming (corporal punishments); their movable goods could be forfeited to their king or their lord (patrimonial or vicarious punishment). During the Enlightenment, contemporaries began to see the incongruity. The famous Milanese jurisprudential writer Caesare Bonesana, marchese di Beccaria, put it memorably when he stated that punishing the dead ‘would make no more impression on the living than whipping a statue’.³ Yet this is precisely what happened to some suicides. The idea of ‘judging’ suicide and of punishing the guilty dead is so odd for modern historians as to provoke either instinctive revulsion or close investigation for, as Robert Darnton put it, when ‘we run into something that seems unthinkable to us, we may have hit upon a valid point of entry into an alien mentality’.⁴ Drawn by the unthinkable, the most inﬂuential study of early modern English suicide, by Michael MacDonald and Terence Murphy, sees changing attitudes and practices as an indicator of a radical shift in relations between governors and governed, and in the mental world of English people.⁵ They propose that only the physical restraints of an intrusive state and the psychic ones of an ¹ R. Cobb, Death in Paris (Oxford, 1978), 102. ² A. Murray, Suicide in the Middle Ages 2 vols. (Oxford, 1998, 2000), vol. 1, 399. ³ R. Bellamy (ed.), Beccaria: On crimes and punishments and other writings (Cambridge, 1995), 83. ⁴ R. Darnton, The great cat massacre and other episodes in French cultural history (Harmondsworth, 2001), 262. ⁵ M. MacDonald and T. R. Murphy, Sleepless souls: Suicide in early modern England (Oxford, 1990).

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Introduction

intolerant church oppressed more humane attitudes towards suicides on the part of family and community. The people eventually won, effectively decriminalizing suicide to protect private lives and private property against a predatory state and prejudiced clergy. In the process, suicide came to be seen for the medical problem we now assume it to be, as new scientiﬁc interpretations replaced those dominated by religion. The outcome is said to be demonstrated in newspapers of the Enlightenment era that brought routine accounts of self-murder to readers and thereby normalized it. Changing treatment of suicide is an index of a one-off ‘modernization’ of society during ‘the long eighteenth century’ that allowed death to become ‘desocialized’—private, separate, and veiled. Clear, comprehensive, and apparently cogent, the argument captivated this historian at ﬁrst. However, doubts soon surfaced. The present study is the result of two decades of mulling over those doubts and ﬁve years of research initiated by the realization that it was wrong to be transﬁxed by oddity: in many ways suicide was just another sudden death that left practical as well as symbolic problems for survivors. This book offers an alternative version of what their reactions tell us about government, society, and mentalities in Britain from the end of the ﬁfteenth century to the early nineteenth century, asking how, when, and why early modern people punished suicide. The aim is less to understand the meaning of suicide as constructed by the people who die (their reasons, awareness, and intentions) than to explore the attitudes and behaviour of those who interact with the self-murderer after death.⁶ One central argument of the ﬁrst two sections is that forfeiture for suicide was only partly punitive, for it was also a means of enforcing trust and community among survivors through the mechanism of lordship. Suicide was, in Cobb’s words, ‘the most private and impenetrable of human acts’, but it also had an important public face.⁷ Forfeiture made a symbolic point about authority, but it was also a practical way of framing social and political relationships. The decline of forfeiture in the seventeenth century tells us, not about the victory of family, community, and private property, but about changing ideas of discretionary outside intervention in many aspects of life and about the new mechanisms which developed to deal with the central issues of debt and credit that pervaded early modern society. What accounts for the apparent strangeness of forfeiture is the different institutional environment and social assumptions within which early modern people operated. The handling of forfeiture exempliﬁes one part of what German legal historian Otto von Gierke saw as a dialectic between the hierarchical principle of Herrschaft (lordship) and the horizontal one of Genossenschaft (association or fellowship).⁸ ⁶ As does the excellent study by S. K. Morrissey, Suicide and the body politic in imperial Russia (Cambridge, 2007). ⁷ Cobb, Death in Paris, 101. ⁸ O. von Gierke, Das deutsche Genossenschaftsrecht 4 vols. (Berlin, 1868–1913), vol. 1. O. von Gierke, Community in historical perspective ed. A. Black (Cambridge, 1990). In an adaptation of

Introduction

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For Gierke, lordship gained signiﬁcance as feudalism emerged in the German lands 800–1200, then, as Aristotle’s civitas was rediscovered, there came a ﬂowering of ‘freely chosen fellowships’, with guilds, towns, and Estates (but not among peasants) in the late Middle Ages; after 1525 absolutist monarchs subdued organic fellowship, which was replaced by a mechanistic corporatism, until in 1806 the state, as the highest form of association, fused community and lordship into a sovereign but consensual order. Expressing ‘the stark dichotomies of nineteenth-century sociological thought [which] continue to haunt the recesses of our own thinking’, Gierke focused on the oppositional aspects of this relationship (‘freedom of the people’ v. ‘lordship and service’) and he privileged Genossenschaft in an ‘ascending’ theory of government (i.e. authority comes up from the people).⁹ Von Gierke’s work is more valuable as a conceptual framework than as an historical description, for in any dialectic both sides share at least some meanings and understandings: Herrschaft implied reciprocal relationships. Thus, there was also an important constructive, complementary element to lordship that helped maintain social cohesion and even promote community, driven by ideas of public duty, secular obligation, and religious charity rather than merely personal privilege and political power. Lordship’s importance is widely recognized by historians of early modern Scotland and Ireland, but viewed as less important by those of post-medieval England.¹⁰ Lords may have been ‘shadowy ﬁgures’, unimportant to many areas of the economic lives of late medieval and early modern English people, but there were contexts where they remained desirable and perhaps even necessary.¹¹ The aftermath of suicide was one: lords dealing with practical issues of family and community in a period of profound legal and political change. von Gierke, Walter Ullmann calls the dialectic a ‘competitive rivalry’. W. Ullmann, Principles of government and politics in the Middle Ages (New York, 1966), 21. R. W. Scribner, ‘Communities and the nature of power’, in R. W. Scribner (ed.), Germany: A new economic and social history volume 1, 1450 –1630 (London, 1996), 291–2. J. Theibault, ‘Community and Herrschaft in the seventeenthcentury German village’, Journal of Modern History 64 (1992), 1–21. C. Turner, ‘Organicism, pluralism and civil association: Some neglected political thinkers’, History of the Human Sciences 5 (1993), 175–84. ⁹ First quotation from R. M. Smith, ‘ ‘‘Modernization’’ and the corporate medieval village community in England: Some sceptical reﬂections’, in A. R. H. Baker and D. Gregory (eds), Explorations in historical geography: Interpretative essays (Cambridge, 1984), 150. Von Gierke, Community, 9–10. ‘Ascending’ and ‘descending’ are terms coined by Ullmann in his version of von Gierke. Ullmann, Principles, 19. ´ hAnnrach´ain, ‘Introduction: Making and remaking community ¹⁰ R. Armstrong and T. O ´ hAnnrach´ain (eds), Community in early in early modern Ireland’, in R. Armstrong and T. O modern Ireland (Dublin, 2006), 13–33. S. Brigden, New worlds, lost worlds: The rule of the Tudors, 1485 –1603 (London, 2000), 73, 140–9, 166–7. S. Reynolds, ‘Secular power and authority in the Middle Ages’, in H. Pryce and J. Watts (eds), Power and identity in the Middle Ages (Oxford, 2007), 11–22. ¹¹ C. Dyer, An age of transition? Economy and society in England in the later Middle Ages (Oxford, 2005), 125. Dyer writes to counsel historians not to concentrate too much on ‘lordly’ sources when assessing the impact lords had on the economy.

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Introduction

In short, the handling of forfeiture encapsulates many of the forces Nancy Kollman ﬁnds behind the cohesion of early modern European societies and polities: ‘coercive control; tolerance of local autonomies; distribution of rewards; effective dissemination of unifying ideas in laws, texts, and ritual; and the ability of individuals to interpret and manipulate the dominant ideas and institutions to their own ends within bounds acceptable to the state’.¹² Lordship helped to design and stabilize what Craig Muldrew terms a ‘negotiated community’, where close interpersonal ties required constant management in pursuit of harmony between members. Only in the seventeenth century, with the development of a ‘juridical community’ was the discretionary handling of forfeiture augmented by more impersonal legal ways of ensuring cooperation and settling disputes. A fully depersonalized set of mechanisms came later still with the structured predictability of the ‘architectural community’ in the later eighteenth century and beyond. By this stage, new legal structures and impersonal institutions formalized obligations and rendered dealings transparent, making it harder for individuals to act wilfully and self-interestedly; eventually self-control became internalized.¹³ The heyday of forfeiture in both Scotland and England was c.1550–1650. Thereafter, different political priorities and alternative legal means of dealing with the material aftermath of suicide developed, signalling a decline in the role of lords in enforcing community. Historians have generally regarded suicides’ assets and their bodies as objects of a single punishment that manifested a deep abhorrence by man and God. In fact, corporal and patrimonial penalties had different ends. Forfeiture was like a ﬁne or ‘amercement’—a token of blame and of ‘apology’—whereas treatment of bodies was more obviously punitive. As Tom Laqueur puts it, ‘what one can or cannot do to bodies—especially the bodies of the dead—provides the limiting case for what is or is not thinkable’.¹⁴ This emphasis on bodies explains why inﬂicting damage on a corpse or exposing it to shame was more feared by the suicide’s survivors than were restrictions on their freedom to do as they wished with the estate of the dead. At the same time, rituals that discriminated against suicides at burial were not some generalized gut reaction to an uniquely horriﬁc act, but were visited selectively on certain classes of suicide whose micro-political position in the community made them vulnerable. Profane burials were frequently contested as relatives and friends sought to assert their inclusive vision of the community of the dead (and living) against more rigid exclusionary norms. Afﬂictive punishments on suicides were not some lingering survival, but ﬂourished in a ‘creative’ period for sanctions when new, elaborate, even spectacular ¹² N. S. Kollmann, By honor bound: State and society in early modern Russia (London, 1999), 201. ¹³ C. Muldrew, ‘From a ‘‘light cloak’’ to the ‘‘iron cage’’: An essay on historical changes in the relationship between community and individualism’, in A. Shepard and P. Withington (eds), Communities in early modern England (Manchester, 2000), 161–6. ¹⁴ T. W. Laqueur, ‘Cemeteries, religion and the culture of capitalism’, in J. Garnett and C. Matthew (eds), Revival and religion since 1700 (London, 1993), 185.

Introduction

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penalties were invented and enforced, albeit against a small number of criminals. They reﬂect a retributive rather than reformatory emphasis to justice. The period of latitude was broadly over in Scotland by 1700 as punishments that had been judicial or para-judicial, including dragging bodies through public streets and hanging them on gibbets, became primarily extra-judicial or ‘popular’. Burying a suicide in unconsecrated ground with a stake through the heart had no authority at law, but was a ‘customary’ or local usage sanctioned by warrant of an English coroner; it was infrequently inﬂicted between the early sixteenth century and its formal abolition in 1823. Rather than the onset of civility or humanity, changes in the law towards greater certainty and consistency caused the decline of ofﬁcially sanctioned corporal punishments. The chronology and the rationales were, however, quite different in the entirely separate legal systems of Scotland and England; change mostly occurred far more slowly in England. Corporal punishments of suicides allow us to chart these changes. Suicide was a felony, but forfeiture was a civil liability and corporal punishments were primarily associated with criminal justice. Thus, understanding suicide requires knowledge of the law and, for this reason, legal sources, theory, and practice take centre stage. In a book review, Geoffrey Elton wrote that ‘the law offers the surest way to an understanding of the social history of an age, at least before the French Revolution, a surer way than all the non-applicable reﬁnements of modern sociology or social anthropology’.¹⁵ Elton followed F. W. Maitland, who, in a less acerbic and more inclusive way, asserted that ‘legal documents of the most technical kind, are the best, often the only evidence that we have for economic and social history’.¹⁶ This historian believes in the value of ideas drawn from other disciplines, including those Elton dismissed, that have dealt with issues as diverse as bodies, ethics, and power. However, he also appreciates the wisdom of Maitland’s view that law is a social fact that shapes how people think and behave, and thus deserves as prominent a place as other social sciences in historical analysis. Tackling the law’s sometimes daunting complexity makes it harder to over-interpret the evidence and simpler to see clearly both the difference between symbolism and the pragmatism. As well as modern scholars, the great legal historians of the past provide guidance, for they offered grand schemes of societal change that challenge modern historians used to more cautious generalizations. Other than Gierke and Maitland, these include Victorian Henry Maine and Edwardian Paul Vinogradoff. Looking at the treatment of suicides’ bodies, the handling of their material wealth, and the religious and secular understandings surrounding self-murder, this study seeks to locate suicide in its local and regional as much as its national ¹⁵ C&C 2 (1987), 199–200. ¹⁶ F. W. Maitland, ‘Why the history of English law is not written’, in H. A. L. Fisher (ed.), The collected papers of Frederic William Maitland 3 vols. (Cambridge, 1911), vol. 1, 486.

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context. Explicitly British in its treatment, it focuses on Scotland and the north of England, dealing with each in separate ‘national’ chapters and sections because the governments, laws, societies, and religions of the two are so very different as to make more than brief comparisons difﬁcult to sustain with a topic as multi-faceted as suicide. Comparisons are nevertheless drawn throughout the book, for the experiences of one part of Britain often shed light on what is special about the other. Regional comparisons within both Scotland and England and Wales are also made, and examples from outside the core area are used when they illuminate a particularly dark issue. For example, an important ﬁnding is that there were spatial variations in corporal punishments. Staking was unusual in the north of England and unknown in Scotland, but there were similarities between these regions in the way some corpses were shamed prior to burial that seemingly have no parallel in most of the rest of England. The conclusion to Part 1 summarizes what punishing the dead tells us about early modern punishment in general, a topic further reﬁned in discussing attempted suicide. This was never a crime in Scotland and was treated as a pastoral matter; in England it only became a misdemeanour subject to formal prosecution in the mid-nineteenth century. Rather than relying on a single source like coroners’ inquests—the core of most English studies of suicide—insights from many types of documentation are used to build up a composite picture of where attitudes towards suicide ﬁt into other understandings of life and death. The textured meanings in detailed, discursive, and often difﬁcult sources are opened up to close, comparative analysis. Treatment of living miscreants and of those who died naturally or at the hand of another is included, again to assess what is distinctive about suicides. This is, for example, essential when discussing burial patterns (see Chapter 3). or exploring suicide to avoid dissection after execution, 1752–1832 (see 4.5). Comparisons extend to Ireland and to continental Europe, both to expose what is Anglo-centric about existing studies and because, as is shown shortly, MacDonald and Murphy’s interpretative framework is a modiﬁed French one. If English practice is considered comprehensively and carefully, it can be seen to fall into a larger family of practices, among which Scotland represents another (albeit more ‘continental’) variant, and both similarities and differences between the countries are instructive about their respective social and political relationships and cultural values. Those values and attitudes are brought out more clearly in the last two chapters of the book which deal ﬁrst with religious, philosophical, and medical ideas of suicide, and then with its depiction in newspapers of Scotland and the north of England c.1750–1830. The ﬁrst deals with the role of the devil as the ultimate force behind suicidal inclinations, arguing that this has been seriously overstated for England. Invoking the devil was rare in understandings of suicide north of the Border: post-Reformation Scotland was, for most purposes, a much more secular country than England. Despite, or perhaps because of, David

Introduction

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Hume’s famous eighteenth-century essay on suicide, mainstream thinkers in both countries remained hostile to suicide until at least the early Victorian era. This was demonstrated in England by a sophisticated and ‘modern’ sermon literature, and in Scotland by the self-evident power of the sixth commandment. The spiritual emphasis on salvation in Scottish Calvinism (its soteriology) explains why Scots could embrace suicidal thoughts without surrendering this axiom. Regional newspapers of the Georgian era did little to change mainstream ambivalence, depicting local suicides in markedly different ways from their metropolitan equivalents. The apparently secular, medical, and morally neutral medium of the provincial press of north Britain reinforced widely held beliefs that suicide was the wrong way to die. More, reporting was selective of class and sex in explicitly admonitory narratives of social worth and moral exclusion. Informed by social preconceptions, the rules of classical rhetoric, and the assumptions of mainstream religion, stories used suicides to mark the boundaries of the normative community. Georgian provincial newspapers continued to punish the dead.

H I S TO R I O G R A PH Y: E N G L I S H S U I C I D E , F R E N C H I N F LU E N C E S , A N D T H E P O L I T I C S O F M O D E R N H I S TO R I A N S Writing in 1899, the lawyer Edward Manson opined that ‘in a nation’s view of suicide is reﬂected its whole conception of life’.¹⁷ Anglo-Saxons who wrote about the subject offered a primarily legal perspective, whereas the main sociological studies of suicide in Manson’s age were French (or Francophone). They were ´ almost exclusively about causation—Emile Durkheim’s Le suicide: Etude de sociologie and Maurice Halbwachs’ Les causes du suicide —and especially about the external or social causes.¹⁸ Beginning in the eighteenth century, debates around competing social and psychological interpretations of suicide pervaded French academia, and in terms of publication suicide was one of the most discussed social problems of the nineteenth century.¹⁹ Continental historians of the Annales school began to rediscover the phenomenon in the 1960s, and ¹⁷ E. Manson, ‘Suicide as a crime’, Journal of the Society for Comparative Legislation 1 (1899), 311. ´ ¹⁸ E. Durkheim, Le suicide: Etude de sociologie (Paris, 1897). M. Halbwachs, Les causes du suicide (Paris, 1930). S. A. K. Strahan, Suicide and insanity: A physiological and sociological study (London, 1893). E. A. Plaut and K. Anderson (eds), Marx on suicide (Evanston, Ill., 1999). R. S. Guernsey, Suicide: History of the penal laws relating to it in their legal, social, moral, and religious aspects, in ancient and modern times (New York, 1883). V. Bailey, ‘ This rash act’: Suicide across the life cycle in the Victorian city (Stanford, 1998), 15–33, offers an incisive overview. ¹⁹ A. Giddens, ‘The suicide problem in French sociology’, British Journal of Sociology 16 (1965), 4.

8

Introduction

since the 1980s there have been a growing number of books and articles on medieval and early modern suicide, especially in north-western Europe.²⁰ Of the major modern British studies, only Olive Anderson (1987) has remained within a truly Durkheimian sociological tradition, arguing (controversially) that suicide increased during the Industrial Revolution.²¹ Yet the Gallic inﬂuence runs much deeper, for Durkheim is only the most famous French or Francophone academic to inﬂuence suicide scholars. Equally important for English-language studies was Albert Bayet’s monumental Le suicide et la morale (1922), which Henry Romilly Fedden acknowledged as the framework for Suicide: A social and historical study (1938).²² Best known as a travel writer, Fedden wrote a lively and speculative, not to say cavalier, account of suicide through the ages that mixed social, cultural, religious, political, and legal history. He saw a benign climate of opinion towards suicides from classical times until the dawn of the Renaissance when ‘the horror-struck peasants, the last vassals, and the Church, ﬁnally hand over the wise men to Dante in hell’.²³ ‘From tentative disapproval, Church teaching drifts to denunciation, punishment and horror.’²⁴ Yet in many ways the church responded to latent, pagan horror of suicide that became manifested in a ‘popular, unreﬂective, and ²⁰ R. Healy, ‘Suicide in early modern and modern Europe’, Historical Journal 49 (2006), 903–19. A. Jansson, From swords to sorrow: Homicide and suicide in early modern Stockholm (Stockholm, 1998). G. Seabourne and A. Seabourne, ‘The law of suicide in medieval England’, JLH 21 (2000), 21–48. A. Seabourne and G. Seabourne, ‘Suicide or accident –self-killing in medieval England’, British Journal of Psychiatry 178 (2001), 42–7. G. Minois, History of suicide: Voluntary death in Western culture translated by L. G. Cochrane (London, 1999). A. Merrick, ‘Patterns and prosecution of suicide in eighteenth-century Paris’, Historical Reﬂections 16 (1989), 1–53. J. McManners, Death and the Enlightenment: Changing attitudes to death among Christians and unbelievers in eighteenth-century France (Oxford, 1981), 409–37. A. Joblin, ‘Le suicide a` l’´epoque moderne: Un exemple dans la France du nord-ouest: a` Boulogne-sur-Mer’, Revue Historique 129 (1994), 85–119. A. Schnegg, ‘Justice et suicide sous l’ancien r´egime’, Mus´ee Neuchˆatelois (1982), 73–94. J. R. Watt, Choosing death: Suicide and Calvinism in early modern Geneva (Kirksville, MD, 2001). J. R. Watt (ed.), From sin to insanity: Suicide in early modern Europe (Ithaca, NY, 2004). ´ L. Haeberli, ‘Le suicide a` Gen`eve au XVIIIe si`ecle’, in Pour une histoire qualitative: Etudes offertes a` Sven Stelling-Michaud (Geneva, 1975), 115–30. M. Sch¨ar, Seelenn¨ote der Untertanen: Selbstmord, Melancholie, und Religion im alten Z¨urich, 1500–1800 (Z¨urich, 1985). D. Lederer, ‘Aufruhr auf dem Friedhof: Pfarrer, Gemeinde, und Selbstmord im fr¨uheneuzeitlichen Bayern’, in G. Signori (ed.), Trauer, Verzweiﬂung und Anfechtung: Selbstmord und Selbstmordversuche im mittelalterlichen und fr¨uheneuzeitlichen Gesellschaften (T¨ubingen, 1994), 189–209. D. Lederer, ‘The dishonorable dead: Perceptions of suicide in early modern Germany’, in U. Ecker-Offenh¨auser (ed.), Ehrkonzepte in der Fr¨uhen Neuzeit: Identit¨aten und Abgrenzungen (Berlin, 1998), 349–65. V. Lind, Selbstmord in der fr¨uhen Neuzeit: Diskurs, Lebenswelt und kultureller Wandel am Beispiel der Herzogt¨umer Schleswig und Holstein (G¨ottingen, 1999). U. Baumann, ‘Suizid als soziale Pathologie: Gesellschaftskritik und Reformdiskussion im spaten 18. Jahrhundert’, Zeitschrift f¨ur Geschichtswissenschaft 45 (1997), 485–502. U. Baumann, Vom Recht auf den eigenen Tod: Die Geschichte des Suizids vom 18. bis zum 20. Jahrhundert (Weimar, 2001). O. Fenger, ‘Selvmord i kultur- og retshistorisk belysning’, R¨attshistoriska Studier series 2, 11 (1985), 55–83. ²¹ O. Anderson, Suicide in Victorian and Edwardian England (Oxford, 1987). ²² A. Bayet, Le suicide et la morale (Paris, 1922). H. R. Fedden, Suicide: A social and historical study (London, 1938). ²³ Ibid., 107. ²⁴ Ibid., 111.

Introduction

9

brutal element’.²⁵ The change was buttressed by (customary) legal changes. In short, tolerance was washed away by people, church, and law. At the end of the Middle Ages, secular penalties were put in place in response to ‘popular horror and economic fears’.²⁶ To this was added the antagonism of the Renaissance prince seeking order and orthodoxy, for suicide and its toleration ‘is an insult to the authoritarian’.²⁷ Political force perpetuated the cycle of repression against an undertow of kinder attitudes. Indeed, change was not linear, whether towards severity or away from it. ‘In spite of this steadily accumulating mass of legislation and prejudice there did appear for a brief period the vestiges of a reasoned attitude.’²⁸ Severity to selfmurderers was always tempered by countervailing attitudes and, even in an age of darkness, ‘Their rescuers were already at hand’.²⁹ Finally in the seventeenth century came ‘The Rescue’ and an eighteenth-century ‘Moral Victory’.³⁰ ‘A fresh light and liberation’ began to penetrate the darkness of oppression, led by intellectuals.³¹ ‘Opposition both to the suicide prejudice and suicide penalties comes into the open . . . The apologists burn their boats and launch a direct and reasoned attack.’³² The state stood back, meaning that ‘the solvent of reason . . . met less opposition; for kingship was poorly entrenched and only too glad of a Hobbes to point out the bonds of self-interest which bound the individual to authority’.³³ Yet even in the eighteenth century there were both defenders and critics of suicide. All areas of life contributed to, and were touched by, the changes exempliﬁed by suicide. The origins of medicalization can be found in ‘the birth of melancholy’.³⁴ Alongside medicalization came secularization, for ‘Suicide and the Church had parted company’ in the seventeenth century.³⁵ Fedden wrote to exorcize demons in his family past. His middle name was that of a famous suicide from the Romantic era, Sir Samuel Romilly. He came out of a tradition that recognized the intractability of certain parts of his argument while gladly sacriﬁcing them to the integrity of his polemical whole. Fedden’s work is stimulating, for all its bold, value-loaded dualities (or perhaps because of them): for example, the classical age was ‘intelligent’, the early modern prejudiced, ‘superstitious’, ‘uneducated’ and unwise.³⁶ Fedden also wrote in a tradition which accepted ‘progress’, but which knew from experience of the First World War and the Great Depression that change was often complex and contradictory. He was also ambivalent about the role of the state in social change. In this he stood out from a historiographical trend dominated by a more or less complete faith in progress and in the positive power of institutions. Martin Wiener has called this ‘ ‘‘Fabian’’ consensus historiography’, which (among other things) took an optimistic view of the capabilities of government.³⁷ Developing ²⁵ Ibid., 137. ²⁶ Ibid., 143. ²⁷ Ibid., 186. ²⁸ Ibid., 143. ²⁹ Ibid., 154. ³⁰ Ibid., ch. 6, 7. ³¹ Ibid., 154, 161–6. ³² Ibid., 204. ³³ Ibid., 192. ³⁴ Ibid., 166–85. ³⁵ Ibid., 187. ³⁶ Ibid., 115, 133, 137. ³⁷ M. Wiener, ‘The unloved state: Twentieth-century politics in the writing of nineteenth-century history’, JBS 33 (1994), 284.

10

Introduction

out of Fabian socialism of the late Victorian and Edwardian era, this meant blending Whig historiographical notions of the progress of liberty with a Tory stress on ﬁrm government to create a model of social improvement based on an increasingly ‘humane and enlightened state’.³⁸ Fedden’s line was inﬂuenced by some aspects of Fabianism more generally, notably the ethical indignation at the barbarity of punishment also shown, for example, in George Ives’ History of penal methods (1914) that itself reﬂected faith in the interventions of the ‘good’ state.³⁹ The Fabians chose to emphasize their continuity with older liberal traditions: they saw their social vision coming out of, and hopefully returning to, a political system in which the state intervened for the good, but where power was diffused.⁴⁰ Yet in important ways Fedden was more like the libertarian historiography of the 1960s and beyond.⁴¹ One aspect of this, not considered in Weiner’s powerful analysis of British and American historiography, is the role of anti-clericalism, meant as opposition to organized religion or ‘the church’ as a hierarchical component of the body politic. Thus Fedden presented the church as a repressor of suicide from the Middle Ages to the Enlightenment. He was not out of his time in this regard, drawing instead on a non-Anglo-Saxon tradition and indeed acknowledging a primary debt to Le suicide et la morale, a text strongly inﬂuenced by the Enlightenment anti-clericalism that came to inform one side in the titanic struggles between church and state in nineteenthand early twentieth-century France. Because of Bayet’s inﬂuence, the political context of suicide was broadened to take on all ‘big’ institutions, whether that meant the state or organized religion. World War II and the creation of a welfare state in Britain consolidated the consensus about the good state. Then abruptly, during the 1960s and 1970s, it broke down, as historians of both Right and Left turned scepticism about the state’s capabilities and intentions into outright hostility against it. Thus a prominent strand in historical scholarship of the 1970s and 1980s was disillusionment with, and questioning of, the moral status of state intervention.⁴² A leading inspiration was Edward Thompson, whose Making of the English working class (1963) marked his own reaction to statism by focusing on ‘alternative modes of social connection’.⁴³ Across the discipline the new political and social environment profoundly altered the way historians thought ³⁸ Wiener, ‘The unloved state’, 288. ³⁹ G. Ives, A history of penal methods (London, 1914), 247–304. Ives’ principal agenda was reform of laws about homosexuals. See also E. P. Evans, The criminal prosecution and capital punishment of animals (London, 1906). ⁴⁰ A. Wright, ‘A century of Fabianism, 1884–1984’, History Today 34 (May 1984), 50–1. ⁴¹ D. Cannadine, ‘Historians in ‘‘the liberal hour’’: Lawrence Stone and J. H. Plumb re-visited’, Historical Research 75 (2002), 316–54. ⁴² M. MacDonald, ‘Lunatics and the state in Georgian England’, Social History of Medicine 2 (1989), 299–313. ⁴³ Wiener, ‘The unloved state’, 295.

Introduction

11

and wrote. The ‘new social history’, with its emphasis on ordinary folk and its interest in uncovering the characteristic life experience of groups of (often forgotten) people in the past was the principal outcome. Using neglected sources and asking new questions derived primarily from the social sciences, its proponents sought to quantify patterns of behaviour, and thus to provide a robust underpinning for generalizations about ‘the common people’.⁴⁴ Quantiﬁcation became almost an end in itself, and a substantial numerical base was needed to deﬂect charges of ‘impressionism’ levelled against less numerate social historians. Yet there were parallel trends that emphasized a more qualitative approach to understanding the past. Post-modernist inﬂuences encouraged historians to think in terms of language and discourse: the way understandings are constructed, representations created, and meanings situated. Sociologists were part of this trend, notably Jack Douglas’ important 1967 work, The social meanings of suicide.⁴⁵ For Douglas, understanding suicidal actions in their immediate social context is essential to an interpretation of any statistics, but the likelihood is that it would prove impossible to distinguish the meanings attributed to suicide from any positivistic ‘cause’. Suicide can only be understood as part of the cultural representations that give it meaning, created by those who kill themselves and those who interpret the act. This critical approach to evidence and meaning is best manifested in literary criticism, whose methods had a profound impact on the way some historians approached their task from the 1970s onwards. Among these, Barbara Gates looked at factual and ﬁctional ‘media’ representations of suicide during the Victorian period.⁴⁶ From this mixture of inﬂuences, MacDonald fashioned a beguiling overview of early modern English suicide. He ﬁrst trailed his methodology and ﬁndings in 1977, setting them out in a more rounded and far-reaching article in 1986.⁴⁷ MacDonald quantiﬁed, but he also interrogated evidence with the imaginative means developed within literary criticism and the social sciences. In a book four years later, co-authored with Terence Murphy, MacDonald placed suicide at the heart of English religious, social, and political change. In particular, he presented deﬁning and dealing with suicide as the site of a centuries-long struggle between state and people. Like French philosopher Michel Foucault, MacDonald assumed that the state monopolizes punishment and was at the core of the social order, enforcing subordination on its subjects. Following the (benign) scheme presented by A. F. Pollard (1912) and Geoffrey Elton (1953) as much as the ⁴⁴ The substantial Annaliste studies of death by Ari`es and Vovelle contain almost no mention of suicide. ⁴⁵ J. Douglas, The social meanings of suicide (Princeton NJ, 1967). ⁴⁶ B. T. Gates, Victorian suicide: Mad crimes and sad histories (Princeton, N.J., 1988). ⁴⁷ M. MacDonald, ‘The inner side of wisdom: suicide in early modern England’, Psychological Medicine 7 (1977), 565–82. M. MacDonald, ‘The secularization of suicide in England, 1660–1800’, P&P 111 (1986), 50–100.

12

Introduction

anti-Thatcherite The great arch (1985), MacDonald located the origins of the malevolent state in The Tudor revolution in government.⁴⁸ Because of its origins in French history, MacDonald’s ‘statist’ model of an early burgeoning of the English state, followed by a triumph of the ruled is at odds with the more usual disinterest shown by English historians in top-to-bottom or ‘descending’ notions of acculturation or social control found in continental historiography.⁴⁹ MacDonald’s inﬂuential interpretation now merits a section in some recent textbooks on early modern British history.⁵⁰ It is an unusually sophisticated and persuasive version of a modernization narrative, a label that applies equally to the earlier work of John McManners, who saw changing attitudes to death as a function of social and intellectual change in the Enlightenment.⁵¹ Both offer explicitly teleological accounts of irreversible, sequential change from harshness to leniency, severity to tolerance, cruelty to sympathy, darkness to enlightenment—what Foucault termed (critically) for punishment ‘less cruelty, less pain, more kindness, more respect, more ‘‘humanity’’ ’.⁵² Or as MacDonald and Murphy put it: ‘in the eighteenth century, Enlightenment philosophy and the secularization of the world-view of European e´lites prompted writers to depict suicide as the consequences of mental illness or of a rational choice’.⁵³ Yet the change had taken place among the people despite the state rather than because of it: by their appropriating selectively the input of the medical profession rather than accepting it at face value; by decentralizing decision-making rather than consolidating and bureaucratizing government; by libertarianism or antidisciplinarianism rather than statism. A kinder, more orderly, and law-abiding society was created, not by state imposition, but by an impetus from an empowered people to decriminalize ‘personal’ acts like suicide and to protect private property.⁵⁴ The inﬂuence of MacDonald’s thesis is in one sense easy to understand. Engrossing into an integrated, clear, and emotive argument many areas of current interest to early modern historians, it offers a ﬂuent and readable narrative of structures and change in culture and mentalities, apparently founded ⁴⁸ A. F. Pollard, History of England: A study in political evolution 55 BC –AD 1911 (London, 1912). G. R. Elton, The Tudor revolution in government: Administrative changes in the reign of Henry VIII (Cambridge, 1953). P. Corrigan and D. Sayer, The great arch: English state formation as cultural revolution (Oxford, 1985). ⁴⁹ H. Roodenburg, ‘Social control viewed from below: new perspectives’, in H. Roodenburg and P. Spierenburg (eds), Social control in Europe: Volume 1, 1500–1800 (Columbus, 2004), 148. ⁵⁰ J. Hoppit, A land of liberty? England, 1689 –1727 (Oxford, 2000), 227. ⁵¹ McManners, Death and the Enlightenment, 409. ⁵² M. Foucault, Discipline and punish: The birth of the prison translated by M. Sheridan (London, 1977), 16. For clear analyses of the shortcomings of such arguments see Smith, ‘Modernization’ (from which the ﬁrst quotation comes, at p. 153) and A. Macfarlane, ‘Civility and the decline of magic’, in P. Burke, B. Harrison and P. Slack (eds), Civil histories: Essays presented to Sir Keith Thomas (Oxford, 2000), 145–59. ⁵³ MacDonald and Murphy, Sleepless souls, 2. ⁵⁴ Wiener, ‘The unloved state’, 287–9, 295–6.

Introduction

13

on robust evidence. Yet the coherence of the whole is achieved by sacriﬁcing the integrity of certain important component parts. At the time of his 1986 article, specialists working on coroners’ inquests worried about the foundations of the ediﬁce that MacDonald was building, notably Michael Zell and Simon Stevenson in cautionary footnotes or asides.⁵⁵ Indeed, MacDonald and Murphy seem to have recognized the holes in the argument and Sleepless souls has a number of only partly effective ‘patches’ covering these: important counter-evidence is mentioned only to be immediately forgotten; ‘incidental’ qualiﬁcations are entered which in fact vitiate the argument. The best-known and most effective critique is Donna Andrew’s short but robust article.⁵⁶ Other attacks were equally direct, notably Victor Bailey’s characterization of Sleepless souls as ‘impressionistic and speculative, insufﬁciently grounded in a complete and informative source . . . untenable’.⁵⁷ Over time, many scholars have chipped away at important aspects of the evidential underpinning and the argument they support. For example, in a study of 718 medieval coroners’ inquests that resulted in a verdict of suicide, Sara Butler found that 79 per cent were returned felo de se, where MacDonald and Murphy assert that this very seldom occurred prior to 1500.⁵⁸ Yet there has been a curious reluctance systematically to confront either the evidential base or the conceptual framework.

S O C I A L - S C I E N C E A P P ROAC H E S TO S U I C I D E Since Douglas, a new generation of sociologists has reﬁned understandings of death in general and suicide in particular by focusing on what was done to corpses. For Lindsay Prior, writing about modern Belfast, ‘the political organization of death circulates around the appropriation of bodies, rather than theorizations of health and illness. It is the body which is the focus of politics more than any speciﬁc image of death, and it is the corpse, rather than any speciﬁc ideology of human welfare, which serves as the hub of political activity’.⁵⁹ Or, to paraphrase the title of another book (about reburial), dead bodies have political lives.⁶⁰ ⁵⁵ S. J. Stevenson, ‘The rise of suicide verdicts in south-east England, 1530–1590: The legal process’, C&C 2 (1987), 37–75. S. J. Stevenson, ‘Social and economic contributions to the pattern of ‘‘suicide’’ in south-east England, 1530–1590’, C&C 2 (1987), 225–62. ⁵⁶ D. T. Andrew, ‘Debate: The secularization of suicide in England, 1660–1800’, P&P 119 (1988), 158–65. ⁵⁷ Bailey, Rash act, 4–5. ⁵⁸ S. M. Butler, ‘Degrees of culpability: suicide verdicts, mercy, and the jury in medieval England’, Journal of Medieval and Early Modern Studies 36 (2006), 266. MacDonald and Murphy, Sleepless souls, 22–3. ⁵⁹ L. Prior, The social organization of death: Medical discourse and social practices in Belfast (New York, 1989), 179. ⁶⁰ K. Verdery, The political lives of dead bodies: Reburial and postsocialist change (New York, 1999).

14

Introduction

As material objects they have a high value as symbolic vehicles, shown in the veneration of relics from the Middle Ages onwards, but the way people think about bodies is more signiﬁcant than their materiality because they occupy social space as much as physical. ‘A dead body is meaningful not in itself but through culturally established relations to death and through the way a speciﬁc dead person’s importance is (variously) construed.’⁶¹ Early modern people knew as much. Thomas Sparke wrote in 1607 that ‘burials are in some sort civil, human, and politic things’.⁶² The language of the body and the treatment of corpses were used explicitly to reafﬁrm or contest social and religious order. For example, the lower classes used bodily analogies to express subordination within social relationships; ruling elites deployed bodily imagery to make a point about the interconnectedness of society and the importance of rule from the head; the bodies of executed felons and traitors bore the marks of punishment, but they also emitted multiple signs about the nature of authority.⁶³ Contextualizing the rituals surrounding suicide makes clear the profound symbolism attached to the bodies of the dishonourable dead. As Foucault remarks, ‘it is always the body that is at issue . . . the body is also directly involved in a political ﬁeld; power relations have an immediate hold upon it; they invest it, mark it, train it, torture it, force it to carry out tasks, to perform ceremonies, to emit signs’.⁶⁴ For Foucault analysis must lie between institutions and the body, in ‘a micro-physics of power’ where operates ‘the political technology of the body’.⁶⁵ Foucault warned too of ‘the risk of allowing a change in the collective sensibility, an increase in humanization or the development of the human sciences to emerge as a massive, external, inert and primary fact’, however well contextualized it is.⁶⁶ Modern philosophy and sociology can be invaluable in framing questions about the history of suicide. Two other helpful social sciences which are at heart inter-disciplinary are criminology and social anthropology. Criminology uses sociological method, but also includes an understanding of the criminal justice system, which is properly the domain of lawyers; investigation into the psychology of individuals, which belongs to psychology or psychiatry; and forensic science, which uses the methods of physical science and psychology in a legal context.⁶⁷ As would a social anthropologist, the aim here is to take the aspect of early modern societies ‘that ﬁrst appears so odd, foreign, senseless, and bewilderingly various . . . and transform it into that which is simple, logical and universal’.⁶⁸ ⁶¹ K. Verdery, The political lives of dead bodies: Reburial and postsocialist change, 28. ⁶² T. Sparke, A brotherly perswasion to unitie (London, 1607), 37. ⁶³ A. Wood, ‘Fear, hatred and the hidden injuries of class in early modern England’, Journal of Social History 39 (2006), 815–16. ⁶⁴ Foucault, Discipline and punish, 25. ⁶⁵ Ibid., 26. ⁶⁶ Ibid., 23. ⁶⁷ R. Lane, Violent death in the city: Suicide, accident, and murder in nineteenth-century Philadelphia (London, 1979). ⁶⁸ R. Huntington and P. Metcalf, Celebrations of death: The anthropology of mortuary ritual (Cambridge, 1979), 11.

Introduction

15

The approach shares the anthropological premise that reactions to death are not random, but always meaningful and expressive. For the anthropologist, ‘the issue of death throws into relief the most important cultural values by which people live their lives and evaluate their experiences. Life becomes transparent against the background of death’.⁶⁹ Death rituals not only reﬂect social, political, and ideological values, but also serve to mould them. For all their strengths, social scientists tend to leave ethics to philosophers and theologians. Decisions about suicide were moral as well as legal, ﬁnancial, and social, but what ethical code did early modern people follow? While recognizing the complexity of their mental world, historians often imply that sixteenthand seventeenth-century people lived by moral absolutes, while modern societies live almost without ethical systems. The 1960s’ cleric and philosopher Joseph Fletcher terms the ﬁrst tendency ‘legalistic’, involving a series of well-deﬁned laws (secular, cultural, and religious) that the individual must implement in every situation.⁷⁰ He calls the second ‘antinomianism’, where each individual makes moral decisions without a ﬁxed or guiding set of principles. Between these poles he places ‘situation ethics’. Here, moral decisions are based upon the circumstances of a particular situation, whose context rather than any immutable norms will dictate responses. Fletcher rejected legalism as too inﬂexible for real-life circumstances. However, he also found antinomianism provided neither foundation for evaluating one’s morality nor justiﬁcation for why people should live in a particular way. His argument was that acting in the most loving way was the surest guide to moral decision-making. This stance seems very ‘sixties’, but rather than a sentiment, medieval and early modern love was ‘a bond of affection, established by public undertakings . . . and upheld by social pressure’.⁷¹ It was also central to Christian belief and to the practices of charity. Indeed, the value of Fletcher’s position to the historian is clear. The moral status of acts must be evaluated in context, making use of some universal principles, but insisting that these can only be understood appropriately within particular situations. Early modern people knew there were rules, but they assessed the context of an act before deciding whether to apply them. Hardly anybody in the historic past thought suicide the right way to die but, in treating suicides as people, the sharp edges of law and religion were rounded off by a palpable and enduring practicality and humanity. Yet there were sharp edges: what anthropologist Clifford Geertz calls the ‘hard surfaces of life . . . the political, economic, stratiﬁcatory realities within which men are everywhere contained’.⁷² The approach adopted here is that of ethnographers, who study the hermeneutics of suicide: its legal, social, and ⁶⁹ Ibid., 2. ⁷⁰ J. F. Fletcher, Situation ethics: The new morality (London, 1966). ⁷¹ M. Clanchy, ‘Law and love in the Middle Ages’, in J. Bossy (ed.), Disputes and settlements: Law and human relations in the West (Cambridge, 1983), 47. E. Kendal, Lordship and literature: John Gower and the politics of the great household (Oxford, 2008), 180–7. ⁷² C. Geertz, The interpretation of cultures (London, 1975), 30.

16

Introduction

cultural context and meanings. It leans towards interpretive sociologists like Douglas. Partly because it lacks a single comprehensive source it does not attempt the ‘refurbished Durkheimianism’ of Victor Bailey’s excellent work, but the choice was also inﬂuenced by scepticism about the certainty with which the structural or ‘patterned determination’ of suicide can be established from the imperfect and incomplete sources that do survive.⁷³ Bailey’s work shows that there remains room for the ‘statistical-hypothetical’ approach denigrated by Douglas. Statistics are presented in this book, for they allow existing hypotheses to be tested and new ones to emerge, albeit in the knowledge that ‘all quantitative data, when scrutinised, turn out to be composites of ‘‘qualitative’’ . . . interpretations, produced by situated researchers, coders, government ofﬁcials and others’.⁷⁴ This is not a counsel of despair. Suicide was not just a discourse, and representations cannot be studied outside the context of the structures and processes in which they were created.

I N V E S T I G AT I N G S U D D E N D E AT H I N T H E PA S T: T H E I N S T I T U T I O N A L C O N T R A S TS B E T W E E N S C OT L A N D A N D E N G L A N D Coroners’ inquests are Bailey’s ‘complete and informative source’. Between 1194 and 1926 a coroner with a jury of ten to twenty-four laymen investigated unnatural or suspicious deaths; the system in Wales and Ireland was identical to England, which had approximately 265 coroners c.1300 and 330 c.1800.⁷⁵ Inquests were a local and participative event held in the vicinity where the body was found, though actual procedures varied considerably between individual coroners, the system reﬂecting ‘the prejudices, habits, and values of each particular locality in all the diversity of its public and private interests, conﬂicts, and routines’.⁷⁶ As well as pronouncing on place and cause of death, inquests judged whether those who killed themselves were culpable. A verdict of felo de se potentially meant forfeiture of movable goods and a profane burial; that of non compos mentis freed the dead person from formal penalties. At the centre of studies of early modern English suicide is a major shift in inquest verdicts recognized (and condemned) by contemporaries. Foreigners too remarked on the prevalence of non compos mentis verdicts in the eighteenth century. For Montesquieu, ‘Il est clair que les loix civiles de quelques pays ont eu ⁷³ Bailey, Rash act, 5. ⁷⁴ A. Giddens, The constitution of society (Cambridge, 1984), 333. ⁷⁵ M. Dutton, The ofﬁce and authority of Sheriffs, Under-Sheriffs, Deputies, County-Clerks and Coroners in Ireland (Dublin, 1721). Anderson, Suicide, 15. [Brodrick] ‘Report of the committee on death certiﬁcation and coroners . . . 1971’, PP XXI (1971–2), 107–18 [Cmnd. 4810]. ⁷⁶ Anderson, Suicide, 40. J. D. J. Havard, The detection of secret homicide (London, 1960). R. F. Hunnisett, The medieval coroner (Cambridge, 1961).

Introduction

17

des raisons pour ﬂ´etrir l’homicide de soi mˆeme: mais, en Angleterre, on ne peut pas plus le punir qu’on ne punit les effets de la d´emence’.⁷⁷ Scholars have since then periodically rediscovered the change. The American lawyer Rocellus S. Guernsey noticed in the 1880s that until the time of the Commonwealth, coroners’ juries seldom found suicides insane.⁷⁸ Fedden knew this too, though he offered few statistics. Etienne Dumont was one of those who reported, in 1960, that the verdict of felo de se applied to 90 per cent of English suicides until the seventeenth century, when it began to be replaced until, ‘plus tard ’ (like many criminologists Dumont was frustratingly imprecise about periodization—though Guernsey was no better), it was rendered in barely 4 per cent of cases, the rest being non compos mentis.⁷⁹ That this change in verdicts obsesses historians is understandable because it seems to offer an apparently robust quantiﬁable indicator of that elusive historical phenomenon, cultural change. Societies which desecrate bodies, bury them in unconsecrated ground, and ﬁne the survivors are seen as barbaric or illiberal. Those which display medical awareness, ‘compassion’, and a respect for individual and family rights are seen as liberal or civilized. Thus a simple judicial verdict has been made to carry a prodigious weight of historical interpretation. That English investigative procedures produced such verdicts makes them unusual. On the continent the investigation of suspicious death was designed to uncover the means by which people had died and the nature of any human agency; procedures were conducted in private by magistrates, who usually called for a written report based on the facts ascertained as well as interviewing witnesses, who might include medical men. The issue of mental state was incidental, rather than central to the outcome, and was assessed by quite different means. Scotland had coroners, but they did different jobs from their English counterparts, and Scottish procedure was closer to continental.⁸⁰ Suspicious deaths were investigated by warrant of Sheriffs, of whom Scotland had thirty-three prior to 1748, but conducted in practice by magistrates, ‘bailies’, or ‘procurators’ (prosecutors) of particular courts who had investigative and judicial functions.⁸¹ Investigations sought to identify agency, not attribute responsibility. Scottish investigations were local, and there was no obligation on magistrates to return ﬁndings to a central court of record. In England from 1487 to 1693 coroners had to register verdicts with King’s Bench and continued to report to JPs and assize judges thereafter to justify expenses and remuneration. In contrast, ⁷⁷ M. A. Masson, Oeuvres compl`etes de Montesquieu 3 vols. (Paris, 1950), book 14, ch. 12. ⁷⁸ Guernsey, Suicide, 30. ⁷⁹ E. Dumont, ‘La r´epression du suicide’, Revue de Droit P´enal et de Criminologie 40 (1960), 557. ⁸⁰ R. A. Houston, ‘Why did Scotland have no coroners?’ (forthcoming). ⁸¹ J. Wallace, The sheriffdom of Clackmannan . . . (Edinburgh, 1890), 20, referring to the reign of George II. A. E. Whetstone, ‘The reform of the Scottish sheriffdoms in the eighteenth and early nineteenth centuries’, Albion 9 (1977), 61–71.

18

Introduction

Scottish magistrates seldom left traces of investigations. One occasionally ﬁnds suicides among Scottish ‘precognitions’—the preliminary investigations into any apparent crime (including sudden death) on which rested any subsequent decision to prosecute—and in full-blown lawsuits where interested parties disputed cause of death or the right to assets.⁸² Only here was a public ‘inquest’ conducted in court, but to test a civil claim not investigate cause of death. The burgh of Stirling records for 1527 contain a reference to the ﬁnding of an ‘inquist, nane discrepand, that wmquhill David Wilsoun was nocht the caus of hus awin deid and that he slew nocht him selfe, and that he was wesyit with siknes, and ane aild waik man, and passand to do his nedis and fell befoir hus awin dour and could nocht recower na help him selfe for waikness, and thar haistely weseit with God’.⁸³ The marginal key is ‘pro Margareta Stevensoun’, who must have brought the case as a potential beneﬁciary of Wilsoun’s estate by proving his death was through illness and misfortune, not suicide. Such cases, rare in court records, were recorded, not as routine inquests in the English sense, but as investigations consequent on disagreements. There were many other differences in procedure. An English coroner’s inquest was required if anyone asked for it, and a verdict of wrongful death was itself sufﬁcient authority for bringing criminal proceedings. Scottish investigations were at the discretion of magistrates, even if they could be swayed by public opinion, and they were merely advisory; any decision on prosecution was made solely by the relevant magistrate (later a lawyer in the public service called a ‘procurator-ﬁscal’). Investigations were driven by a desire to expose foul play. ‘The power of enquiring into the causes of Sudden Death, which is the special duty of the English Coroner is seldom exerted by the Sheriffs of Scotland, and no inquest is usually held upon the discovery of a Dead body, unless when suspicion of Murder exists’.⁸⁴ This priority and reasons of cost explain why there was a much lower rate of post-mortem investigation than in England. Between 1848 and 1857 approximately 500 ‘reports of deaths’ were investigated annually by the Crown Ofﬁce in Scotland out of roughly 20,000 deaths each year, giving a ⁸² ECA Moses bundles 11, no. 452, item 23 (1647). D. Littlejohn (ed.), Records of the Sheriff Court of Aberdeenshire 3 vols. (Aberdeen, 1904–7), vol. 2, 351. ⁸³ R. Renwick (ed.), Extracts from the records of the royal burgh of Stirling, A.D. 1519 –1666 (Glasgow, 1887), 31. ⁸⁴ Northumberland RO ZRW/468, ‘Respecting the ofﬁce of coroner in Scotland & Northumberland’ (1812). EUL Dk.4.57, ‘Asphyxia III: death by hanging’ ff. 47–47v. EUL Dk.4.57, ‘On medico-legal inspections’, f. 2v. A. V. Sheehan, Criminal procedure in Scotland and France (Edinburgh, 1975), 220–1. Death and the procurator ﬁscal (Crown Ofﬁce, 1998). M. A. Crowther, ‘Scotland: A country with no criminal record’, Scottish Economic and Social History 12 (1992), 82–5. M. A. Crowther, ‘Crime, prosecution and mercy: English inﬂuence and Scottish practice in the early nineteenth century’, in S. J. Connolly (ed.), Kingdoms united? Great Britain and Ireland since 1500: Integration and diversity (Dublin, 1999), 225–38.

Introduction

19

rate of approximately 2.5 per cent.⁸⁵ In nineteenth-century England roughly one death in twenty was investigated by a coroner’s inquest.⁸⁶ Coroners’ inquests are at the heart of existing understandings of English suicide, but on their own they present only one aspect of this complex event, and their apparent accessibility belies sometimes intractable problems of interpretation. Exploring other avenues is essential for Scotland, where prior to the midnineteenth century there is only one source which allows systematic analysis: ﬁscal records of those self-murderers whose goods were forfeited to the crown or other lord and then re-granted to an interested party. Forfeiture or ‘escheat’ and re-granting or ‘gift of escheat’ provide the only quantiﬁable early modern Scottish source. Even apparently unpromising documents such as English manor court rolls and estate papers can illuminate the way forfeitures were handled in practice by local lords and communities. Burgh or borough, constables’ and churchwardens’ accounts too contain examples of forfeited assets being collected and dispersed, and they may mention disbursements for the desecration and/or burial of suicides’ bodies. Finally, solicitors’ opinions illuminate the interface between legal texts and practice. Using several sources and an holistic approach has the advantage of opening up layers of meaning when dealing with a complex topic such as suicide. Against this has to be set multiple problems of comparability and discontinuity. Encompassing ﬁscal, charitable, legal, institutional, ‘police’, and literary sources, the documentation used was compiled for widely divergent purposes, within different legal frameworks, and against contrasting social, political, and cultural backgrounds. Understanding the biases in the different sources is essential to the reliability of the picture of suicide in the two countries and to accurate comparisons between Scotland and England—comparisons that can be made most reliably using similar sources such as newspapers.

B R I T I S H H I S TO RY A N D T H E G E O G R A PH I C A L PE R S PE C T I V E O F T H E S T U DY The shift in English coroners’ verdicts, which we now know occurred between c.1660 and c.1740, has signiﬁcance in the modern historiography of suicide that far surpasses the small area of Europe in which it mattered. For all the nagging doubts, the impact of MacDonald’s interpretation of them is also felt ⁸⁵ NAS AD12/11–12. ⁸⁶ I. A. Burney, Bodies of evidence: Medicine and the politics of the English inquest, 1830 –1926 (Baltimore, 2000), 3.

20

Introduction

on European studies, to the point where it risks creating a distorted, Anglocentric vision of the social constructions surrounding suicide. Thus Jeffrey Watt introduced his 2004 edited volume on European suicide by claiming that it became ‘decriminalized, secularized, and medicalized’ during the early modern period.⁸⁷ As noted, the study of suicide has deep historiographical roots stretching back into the nineteenth century for England, France, and the German lands, and it is these which contribute most of the modern writing. There was some nineteenth-century work on Scotland, but, as with many aspects of Scottish social history, suicide is virtually tabula rasa. For its part, Sleepless souls exempliﬁes a tradition of historical writing which assumes that ‘ ‘‘English history’’ does not form part of a larger subject called ‘‘British history’’ and does not need to be written with reference to the latter’.⁸⁸ Olive Anderson’s study did have an explicitly regional dimension and she occasionally nodded towards Scotland, showing awareness of potentially important differences, but also reluctance to probe too deeply into what they were and why they existed.⁸⁹ Foremost in Anderson’s mind was the metropolitan-provincial difference in ‘leniency’. She offered few suggestions about regional differences other than the following: ‘Did those living in the northern Border counties—so often inﬂuenced by Scottish law, which never regarded suicide as a crime—take less trouble to conceal suicide or to punish those who attempted it than did those living in East Anglia, where clerical magistrates were most common and the Puritan inheritance was strongest, and which had a reputation for hard revengefulness?’⁹⁰ Yet if anywhere in Britain had a strong Calvinist inheritance it was seventeenth- eighteenth- and nineteenth-century Scotland. This leads into the other interpretation of regional difference: ‘The belief that self-murder was prompted by Satan survived in rural districts of England and in the Celtic highlands of Wales and Scotland’.⁹¹ These statements reduce the signiﬁcantly different social, legal, religious, and political contexts of Wales and Scotland to an alleged racial origin. Not all of Scotland was Celtic-inﬂuenced and not all was highland. Far from being an ⁸⁷ J. R. Watt, ‘Introduction’, in Watt (ed.), From sin to insanity, 8. R. A. Houston ‘The medicalization of suicide: Medicine and the law in Scotland and England, c.1750–1850’, in J. Weaver and D. Wright (eds), A history of suicide in the modern Western world: International perspectives (Toronto, 2008), 91–118. ⁸⁸ J. G. A. Pocock, ‘The limits and divisions of British history: In search of the unknown subject’, AHR 87 (1982), 312. ⁸⁹ Anderson, Suicide, 239–40. ⁹⁰ Ibid., 240. P. Michael, ‘From private grief to public testimony: suicides in Wales, 1832–1914’, in A. Borsay (ed.), Medicine in Wales, c.1800 –2000: Public service or private commodity? (Cardiff, 2003), 40–64. Michael offers support for this ﬁnding for Wales, where 38 of 127 admissions to a north Wales asylum mentioned the devil as an instigator of suicidal thoughts, but she offers no comparison to show that this was indeed Welsh and Scottish and does not allow that the attribution could be merely a tactical term of art. Ibid., 57. ⁹¹ MacDonald and Murphy, Sleepless souls, 351. They cite James Hogg’s 1824 The private memoirs and confessions of a justiﬁed sinner: written by himself , but this is set in a Lowland parish.

Introduction

21

explanation, invoking ‘the Celtic fringe’ is a substitute for analysis.⁹² At the same time it is quite wrong to assert that the devil ever played a major part in understandings of Scottish suicide. Further, the statement about the ‘Celtic highlands’ exempliﬁes historians’ tendency to take for granted that the further people lived from London, the longer it took them to catch up with political, social, and cultural developments (commonly known as ‘civility’) that are in turn assumed to have originated there.⁹³ In short, modernization ran out of breath when it got to hills or had trouble ﬁnding its way in the ‘dark corners of the land’. Alternatively, scholars turn the distance argument on its head to portray the north of England as guarding moral values of ‘family, lineage and civil society’ or ‘freedom . . . and true justice’ that had been lost in the corrupted, consumptive, modernized south.⁹⁴ ‘The new British history’ has certainly developed since John Pocock’s call for new approaches to the subject, albeit more along some avenues than others.⁹⁵ Glenn Burgess seeks to protect it from the charge of being solely ‘a form of political history’, yet (as he goes on to acknowledge) among social history topics it is only religion that has been approached in its spirit of making us ‘more aware of the way in which political institutions both shape and are shaped by broader social institutions’.⁹⁶ Pocock acknowledged as much when, before prioritizing political formation, he pointed out that most narrative historiography is a product of ‘politicized consciousness’.⁹⁷ Others are similarly open in acknowledging the concentration on high politics in British history, because the crown is the only common institution.⁹⁸ Even here there is an argument for comparison, rather ⁹² A noble exception to such oversimpliﬁcation can be found in R. Hutton, The stations of the sun: A history of the ritual year in Britain (Oxford, 1996), 408–11. D. MacCulloch, ‘Bondmen under the Tudors’, in C. Cross, D. Loades and J. J. Scarisbrick (eds), Law and government under the Tudors (Cambridge, 1988), 97. R. W. Ireland, ‘ ‘‘A second Ireland?’’ Crime and popular culture in nineteenth-century Wales’, in R. McMahon (ed.), Crime, law and popular culture in Europe, 1500 –1900 (Cullompton, 2008), 239–61. ⁹³ R. W. Hoyle, ‘Faction, feud and reconciliation amongst the northern English nobility, 1525–1569’, History 84 (1999), 592–3. ⁹⁴ Idem, citing Mervyn James and (in quotation) Tony Pollard. M. James, Family, lineage and civil society: A study of society, politics and mentality in Durham region 1500–1640 (Oxford, 1974). G. Walker, Crime, gender and social order in early modern England (Cambridge, 2003), 13–15, neatly exposes the shortcomings in ‘dark corner of the land’ history. ⁹⁵ J. G. A. Pocock, ‘British history: a plea for a new subject’, New Zealand Journal of History 8 (1974), 3–21. ⁹⁶ G. Burgess, ‘Introduction—the new British history’, in G. Burgess (ed.), The new British history: Founding a modern state, 1603–1715 (London, 1999), 21. ‘AHR forum: The new British history in Atlantic perspective’, AHR 104 (1999), 426–500. Connolly, Kingdoms united?, is unusual in considering legal history. ⁹⁷ Pocock, ‘Limits and divisions of British history’, 317. ⁹⁸ N. Canny, ‘Irish, Scottish and Welsh responses to centralization, c.1530–c.1640’, in A. Grant and K. J. Stringer (eds), Uniting the kingdom? The making of British history (London, 1995), 147. C. Russell, ‘Is British history international history?’, in A. I. Macinnes and J. Ohlmeyer (eds), The Stuart kingdoms in the seventeenth century (Dublin, 2002), 62–9. P. S. Hodge (ed.), Scotland and the Union (Edinburgh, 1994).

22

Introduction

than a seamless integration of histories, because uniting the crowns did not create a uniform monarchy. For example, the prerogative rights of monarchs in Scotland and England were not necessarily the same even after 1603 when, as Sir Matthew Hale observed, ‘the kingdoms were not confounded but the rights continued distinct and several, the seals several, the coins several, the kingly capacities several’.⁹⁹ Conrad Russell is ﬁrm about the limitations of an integrated approach. ‘Because there is no nation of Britain, no economy of Britain, no society of Britain, and to a large extent, no culture of Britain, one cannot write a history of Britain as if it were a single kingdom. This is true at least until 1800, if not longer. All that can be done is to remember the constant impinging of the course of events in each kingdom on the others.’¹⁰⁰ His opinion takes us back to Pocock’s original conception of ‘the history of Britain, viewed as the interaction of several peoples and several histories’.¹⁰¹ Pocock’s appeal was addressed to historians of ‘peripheries’, whom he wanted to make less insular—or perhaps more so in taking account of the whole island of Britain. English history is a venerable and legitimate ﬁeld of study, but there are times when it too can be introspective. This is occasionally reﬂected in the over-simpliﬁcations and errors noted above, that do no justice to the point they seek to make about England, let alone to the history of Scotland (or Wales or Ireland). Indeed, British history (and an awareness of continental European history) has as much to offer historians of England as of British ‘peripheries’. Maitland wrote to his Scottish correspondent, Sheriff George Neilson, on 9 May 1897. ‘I am always wishing that I knew Scotland. I believe that he who knew it would be able to speak some decisive words about English affairs’.¹⁰² Four years later he modestly admitted: ‘I was oppressed by my ignorance of Scotland.’¹⁰³ DEFINING AND DESCRIBING SELF-MURDER I N T H E PA S T In his famous late eighteenth-century volumes on suicide, high-Anglican Charles Moore conﬁned his deﬁnition to ‘that species of self-destruction alone, which proceeds immediately and voluntarily, without other view or design, to compass ⁹⁹ D. E. C. Yale (ed.), Sir Matthew Hale’s ‘The prerogatives of the king’ (London, 1976), 53. G. H. W. Gane, ‘The effect of a pardon in Scots law’, Juridical Review (1980), 43–4. D. Murray, Early burgh organization in Scotland 2 vols. (Glasgow, 1924, 1932), vol. 2, 343–61. W. J. Wolffe, ‘Crown and prerogative in Scots law’, in W. Finnie, C. M. G. Himsworth and N. Walker (eds), Edinburgh essays in public law (Edinburgh, 1991), 351–69. J. Goodare, The government of Scotland, 1560 –1625 (Oxford, 2004), 87–112. ¹⁰⁰ Russell, ‘British history’, 68. ¹⁰¹ Pocock, ‘Limits and divisions of British history’, 313. ¹⁰² P. N. R. Zutshi (ed.), The letters of Frederic William Maitland, vol. 2 (London, 1995), no. 145. ¹⁰³ Ibid., no. 216.

Introduction

23

its end, by using forcible and violent means to get rid of life’.¹⁰⁴ Accepting this, the present study focuses on a person’s direct and forceful attempts actively to end his or her own life, whether successfully or not. It mentions only in passing those with no will to live, who sought to end their lives by indirect or passive means—what modern psychologists call ‘subintentioned death’—or who voluntary self-harm short of suicide (‘parasuicide’).¹⁰⁵ English (and Scots) law was plain on suicide by proxy: ‘he who desires and persuades another man to kill him, is not a felo de se; his assent being void in law, and the person killing him a murderer. Kelw. 136.’¹⁰⁶ Inchoate suicide was more problematic for lawyers because it was hard to prove intent, but moralists were clearer. There was a tradition of religious thought that saw as culpable any failure to take the opportunities granted by God to realize one’s allotted span. In the sixteenth century that might mean being attentive to natural medicines; in the eighteenth century medical research and medical treatment could themselves be acts of piety and Christian duty.¹⁰⁷ This is why advocates of temperance could argue that English coroners’ inquests should ﬁnd those who died from excessive drinking of spirits ‘self-murderers, and not suffer them to be buried in church yards, but oblige them to be buried in cross roads, with stakes drove through their bodies’.¹⁰⁸ Contemporaries did not use the word ‘suicide’ until the seventeenth century and it is not widely encountered until the eighteenth century, when it could be applied both to the action and to the agent. In the parish register of Melling (Lancs.) is an entry: ‘Marg[are]ta Barker de Archolme suicida 5 Februarii 1704.’¹⁰⁹ More commonly those who wrote of voluntary death used reﬂexive paraphrases such as ‘self-murder’, ‘self-slaughter’, or ‘self-homicide’. Alternatively, they deployed phrases that describe the material essence of the deed, such as that applied to widow Jean Forrest of Haddington (East Lothian): ‘putting violent hands in hir awin blude, slaying and murdering hir self ’.¹¹⁰ A common sixteenthand seventeenth-century phrase was ‘putting down’ oneself, used of suicide and ¹⁰⁴ C. Moore, A full inquiry into the subject of suicide. To which are added (as being closely connected with the subject) two treatises on duelling and gaming 2 vols. (London, 1790), vol. 1, 2–3. This closely follows earlier writers such as J. Sym, Lifes preservative against self-killing. Or, an useful treatise concerning life and self-murder . . . (London, 1637), 159. ¹⁰⁵ G. C. Davison and J. M. Neale, Abnormal psychology (New York, 1994), 250–1. Moore, A full inquiry, vol. 1, 2–3. Durkheim called passive suicide ‘negative’. ¹⁰⁶ G. Jacob, The law-dictionary . . . enlarged and improved by T. E. Tomlins 2 vols. (London, 1797), ‘felo de se’. D. M. Walker (ed.), The institutions of the law of Scotland . . . by James, Viscount of Stair . . . 1693 (Edinburgh, 1981), I.II.5 and supplemental notes, 6–7. ¹⁰⁷ P. Slack, The impact of plague in Tudor and Stuart England (Oxford, 1985), 38–9. D. Madden, ‘Medicine and moral reform: The place of practical piety in John Wesley’s art of physic’, Church History 73 (2004), 741–58. ¹⁰⁸ AJ 296 (11 September 1753). ¹⁰⁹ H. Brierley, The parish registers of the church of Melling (Lancashire Parish Register Society vol. 40, 1911), 138. ¹¹⁰ NAS E2/29, 27 June 1610.

24

Introduction

also in connection with the murder of infants; so too was the word ‘devouring’ in Scotland. In Scots Gaelic the phrase was a reﬂexive ‘thainig-`e ris fhein’—‘that came to himself ’.¹¹¹ The Latin ‘felo de se’ (a felon of himself) is common in early modern English coroners’ inquests, but is used only rarely in Scotland, and then mostly in learned discussion rather than in legal documents. To use a modern term like ‘suicide’ may be to risk creating inappropriate expectations about the subject and constructing it around a set of current problematics, an anachronism only avoidable by strict adherence to early modern context and understandings. At the same time this study accepts the judgements of contemporaries about cause of death or it seeks to use disagreements as a way of understanding how meaning was constructed. The alternative is to tinker with contemporary assessments: unwise, both because contemporaries knew the context better than modern historians and because it is possible to learn more about the people of the past by seeking to understand them than by trying to correct them.¹¹² ¹¹¹ A. Ross, ‘The burying of suicides in the Highlands’, Transactions of the Inverness Scientiﬁc and Field Club 3 (1887), 287. ¹¹² For an example of the potentially misleading application of ‘common-sense criteria’ to Genevan death records see Watt, Choosing death, 20–33. Bailey, Rash act, 5, 62–5, is better justiﬁed, but similarly troubling.

PART 1 PUNISHING THE DEAD

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Introduction to Part 1

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I N T RO D U C T I O N : PE N A LT I E S AG A I N S T S U I C I D E I N B R I TA I N A N D O N T H E C O N T I N E N T Punishment for infractions of the civil or criminal law can take a variety of forms, imposed separately or in combination. It can be inﬂicted on the body of the culprit, involving pain, or pain and death. It can shame, meaning that the injury is to a person’s reputation or self-esteem. It can be ﬁnancial in nature, hurting the miscreant’s purse. It can exclude convicts from mainstream society by imprisonment (which also restricts personal freedom of movement and action), banishment from a designated locale, or transportation to one. Some punishments affect more than the offender, touching his or her family’s reputation, civil status, and patrimony. Punishment’s aims can be retributive or reformatory; it can seek to prevent re-offending by the person punished, or act by example as a deterrent to the wider universe of potential wrongdoers. It can correct, restore, edify, and even improve. Focusing on body and moveable assets, treatment of suicides covers the full spectrum of such penalties: corporal or afﬂictive, shaming, patrimonial, and exclusive. What could be done to suicides across Europe is neatly summarized in this short description, taken from an admonitory sermon published in 1786: [W]ith us, self-murderers are denied a Christian burial; their goods and estate are escheated [forfeited], that respect to their family may deter persons from it. In some countries they are hung up on gibbets; in others, they drag them through the open streets, in a way of ignominy and disgrace, in order to deter others from the shocking crime.¹

Insightful as the 1786 sermon was, it was illustrative rather than descriptive. That these penalties could happen at all has exercised observers for centuries. Criminologist George Ives denounced ‘the monstrous spoliation of the innocent relations’ in his polemical work of 1914.² For Ives, the suicide’s body stood mutely deﬁant and impervious to cruelty as a passive carrier of signs. In contrast, the family was potentially a more sensitive and responsive target for punishment since, because it was a felony, culpable suicide could entail loss of movable assets. On paper at least, ﬁnancial penalties applied in both Scotland and England, for the crown in each claimed the prerogative right to dispose of the movable assets of all felons, including those who died by their own hand.³ Monarchs could franchise this right to subordinate lords. This chapter and the next cover ¹ A caveat against suicide; wherein the heinious sin of that unnatural crime is clearly pointed out (Glasgow, 1786), 17. ² Ives, Penal methods, 287–8. ³ Dumont, ‘La r´epression du suicide’, 554. Minois, History of suicide, 34–7. Fenger, ‘Selvmord’, 61–2. Guernsey, Suicide, 22.

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Punishing the dead

these ﬁnancial or patrimonial penalties: what Jeremy Bentham classed ‘vicarious punishment’.⁴ In Britain and across Europe, forfeiture for felony was conceived as a form of inﬁdelitas or l`ese-majest´e, and the penalty assumed ‘that there was no more than an usufruct, or pernancy of the proﬁts in the vassal, which he being unworthy to enjoy . . . reverted to the superior’.⁵ Suicides were ungrateful because they broke the natural bonds of humanity as well as reneging on a bargain with their lord and thus failing to serve. Pursuing suicide was a way to assert a king’s prerogative (to conﬁscate), his legitimacy (to deﬁne the unacceptable or criminal), and his dignity as a lord (to insist on service). What sort of penalties were there on the continent and how extensively were they enforced? According to Dickenson and Boyden, Spain had the most far-reaching patrimonial sanctions, including a perpetual stain on the bloodline, but they exaggerate.⁶ Alfonso el Sabio’s thirteenth-century Castilian law code, the Siete partidas, saw suicides dying in mortal sin and envisaged that they would not normally receive Christian burial, but his code did not sanction further punishment of the body. Nor did it allow patrimonial penalties unless the deceased had committed a serious crime—in which case the body could also be tried in court, as could that of any accused person. Later law codes such as Díaz de Montalvo’s Ordenanzas reales of the late ﬁfteenth century allowed forfeiture, but only of those with no dependants.⁷ Implementation is unclear. Confusion between codes and practices and between penalties for suicide and those inﬂicted on certain types of otherwise-criminal self-murderer may explain why Vandekerckhove generalizes wrongly: ‘In most cases the conﬁscation affected the entire patrimony, both movable and immovable’.⁸ In the German lands, laws were discriminating if varied. An early Saxon law code of the thirteenth century forbade conﬁscation; one from the late ﬁfteenth century that applied to Hungary, the Ofener Stadtrecht (article 261), speciﬁed that a suicide’s ‘possessions should fall to no one, neither little or much, other than to his wife, his children, or his relations’; and the Carolina or penal code of Charles V for the Holy Roman Empire as a whole banned forfeiture except for the suicides of suspected or convicted criminals.⁹ In Bavaria conﬁscations were ⁴ The works of Jeremy Bentham, now ﬁrst collected; under the superintendence of his executor, John Bowring 2 vols. (Edinburgh, 1838), vol. 1, 479–80. H. S. Maine, Ancient law: Its connection with the early history of society, and its relation to modern ideas (London, 1861), 127–8. ⁵ J. Dalrymple, An essay towards a general history of feudal property in Great Britain (London, 1759), 56. ⁶ E. G. Dickenson and J. M. Boyden, ‘Ambivalence toward suicide in golden age Spain’, in Watt (ed.), From sin to insanity, 103–4. ⁷ L. Vivanco, Death in ﬁfteenth-century Castile: Ideologies of the elites (Woodbridge, 2004), 87–8. ⁸ L. Vandekerckhove, On punishment: The confrontation of suicide in Old-Europe (Leuven, 2002), 102. ⁹ D. Lederer, ‘Honﬁb´u: Nationhood, manhood, and the culture of self-sacriﬁce in Hungary’, in Watt (ed.), From sin to insanity, 122. Vandekerckhove, On punishment, 98.

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unusual during the seventeenth century except for self-murderers also accused of other felonies, and these accounted for less than 10 per cent of suicides investigated 1611–70.¹⁰ In French or French-inﬂuenced areas too a measure of legal protection was afforded to dependants. In Neuchˆatel, goods belonging to the surviving spouse according to the norms of inheritance were not forfeit, nor were conﬁrmed debts owing to the deceased.¹¹ At Geneva, children’s portions or l´egitimes were similarly reserved, and the custom of Antwerp offered comparable protection.¹² Indeed, forfeiture of goods was seldom enforced in Geneva, a reminder that the existence of a law code should not be conﬂated with its implementation. Haeberli found just four cases for the century 1542–1649 and a further four for 1650–1798.¹³ Basing his conclusion on a larger sample, Watt ﬁnds that conﬁscation of suicides’ estates all but ceased in Geneva after the mid-seventeenth century.¹⁴ Very occasionally a family did pay a substantial amende, or forestalled action by the authorities through a charitable donation.¹⁵ No ﬁnancial or other penalty was inﬂicted on Genevan suicides after 1738, except burial ‘sans convoi ni honneur’ and occasionally in unconsecrated ground. In a study of ten departments of France, 1700–60, Bayet found just ﬁfteen successful actions against a suicide, and Moore thought that in France forfeiture had fallen into disuse by the time he wrote in 1790.¹⁶ Where does Scotland ﬁt into this picture of the variety, selectivity, and infrequency of forfeiture? Scots law was clear and, thanks to ﬁscal and administrative sources, the context of forfeiture can be unravelled and the workings of patrimonial penalties fully explicated to reveal the crown’s involvement in forfeiture, how lucrative it was to the recipient and how damaging to survivors, and who administered forfeitures and to what end. Other topics discussed include the social and geographical distribution of documented suicides, the means of their deaths, and the law of debt and credit. Patrimonial punishments are about money, but an important argument in this chapter is that what was transacted when suicides were forfeited and their assets re-granted was goodwill rather than goods. Armed with an understanding of what happened in Scotland it becomes easier to ask the right questions about England in Chapter 2, though disentangling the social, administrative, and political strands of forfeiture there remains difﬁcult. ¹⁰ ¹² ¹³ ¹⁵ ¹⁶

Lederer, ‘Honﬁb´u’, 122, 216 n31. ¹¹ Schnegg, ‘Justice et suicide’, 87. Watt, Choosing death, 83. Vandekerckhove, On punishment, 109. Haeberli, ‘Le suicide’, 126. ¹⁴ Watt, Choosing death, 93–4. Haeberli, ‘Le suicide’, 126. Vandekerckhove, On punishment, 67, 114n. Bayet is quoted in Fedden, Suicide, 229. Moore, A full inquiry, vol. 1., 304n, 338n.

1 Forfeiture in Scotland 1 . 1 S O U RC E S A N D A P P ROAC H E S : F O R F E I T I N G A N D G R A N T I N G T H E S U I C I D E ’ S G O O D S I N S C OT L A N D 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 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.

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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

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.

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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 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.

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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 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).

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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. 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.

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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 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’.

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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 S C OTS L AW A N D S U I C I D E : A D I S T I N C T I V E PAT H ‘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. 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.

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‘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 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

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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 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.

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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 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.

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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. 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.

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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 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.

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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 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.

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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 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.

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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 T H E WO R K I N G S O F F O R F E I T U R E : W H O WA S F O R F E I T E D , W H AT WA S LO S T, A N D W H O G A I N E D ? 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 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.

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Table 1 Donatories of escheated suicides in Scotland, 1550–1764 Donatory kin landowner or employer ofﬁcial neighbour legal ofﬁcer royal servant unknown total

N

% known

108 93 39 35 33 22 18 348

33 28 12 11 10 7 101

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 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.

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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 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.

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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 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.

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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.¹¹⁰ ¹⁰⁵ 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.

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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 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.

50

Punishing the dead Table 2 Status of escheated suicides (both sexes) in Scotland, 1550–1764 Status farmer (‘in’) craft/trade burgess landowner (‘of’) labourer/servant professional unknown Total

N

% known

179 46 41 23 23 14 22 348

55 14 13 7 7 4 – 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 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.

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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 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.

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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 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.

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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 D O N AT I O N S O F F O R F E I T U R E S : G I F TS , S E RV I C E , A N D T H E VA LU E O F G E N E RO S I T Y I N S O C I A L 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 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.

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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 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. Caill´e, 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, pr´elevements, e´changes: A` propos de quelques redevances seigneuriales’, Annales: Economies, Soci´et´es, Civilisations 43 (1988), 1413–32. ¹⁴¹ Clerk and Scrope, Court of Exchequer, 233.

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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 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

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where an estate was disputed or where fair play could not be guaranteed, a wellconnected 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 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.

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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 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.

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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 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.

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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. 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.

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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 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.

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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 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.

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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 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.

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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 P O L I T I C S A N D T H E L AW: T H E R I S E A N D FA L L 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 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.

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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 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.

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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 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.

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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 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.

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Escheated suicides, 1550-1759 70 60

Escheat

50 40 30 20 10 1750

1740

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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 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

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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 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.

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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. 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.

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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.²²⁸ ²²¹ 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.

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1 . 6 T H E P O L I T I C A L G E O G R A PH Y O F S U I C I D E : C O R R E C T I N G LO R D S H I P I N TOW N A N D C O U N T RY 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 Lothians west centrala north eastb Fifec Perthshire Borders south west unknown Total a Ayrshire,

N

% known

76 57 44 47 33 30 17 44 348

25 19 14 15 11 10 6 – 100

Glasgow, Dumbartonshire, Renfrewshire, Stirlingshire.

b Aberdeenshire, Forarshire, Banffshire, Nairn, Inverness, Ross, Sutherland. c including

Kincardine and Clackmannan.

²²⁹ I am most grateful to Simon Taylor for his help in this regard. ²³⁰ Brown, Bloodfeud , 7, 277.

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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 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.

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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 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.

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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. 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.

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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’ 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

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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 procuratorﬁscal 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 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.

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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 I N F O R M A L R E M E D I E S A N D T H E I N T E RV E N T I O N S O F LO R D S 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 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.

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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 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.

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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 S U RV I VO R S 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 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.

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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 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.

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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 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.

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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 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.

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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 H OW V I O L E N T WA S S C OT T I S H S U I C I D E ? I L L E G I T I M AT E D E AT H A N D T H E L E G I T I M AC Y 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 hanging drowning cutting leaping poisoning shooting unknown total

Male N

Male % Known

Female N

Female % Known

109 87 30 9 2 6 22 266a

45 36 12 4 1 2 – 100

39 18 5 5 1 0 13 81

57 26 7 7 1 0 – 98

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

²⁸³ NAS E2/19, f. 35.

²⁸⁴ NAS PS1/69, f. 17.

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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 ²⁸⁵ I. W. Schr¨oder and B. E. Schmidt, ‘Introduction’, in I. W. Schr¨oder 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.

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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.²⁹⁶ ²⁹¹ 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).

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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 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.

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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 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 ﬁd´elit´es et les client`eles en France aux XVIe, XVIIe et XVIIIe si`ecles’, 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: Sociabilit´e et comportements populaires en Artois du XVe au XVIIe si`ecle (Turnhout, 1989), C. Gauvard, ‘De grace especial’: Crime, ´etat et soci´et´e en France a` 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.

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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 . 1 0 C O N C LU S I O N : E N F O RC I N G AU T H O R I T Y I N A N AG E O F P O L I T I C A L A N D S O C I A L C H A N G E The gifting of escheats was a subtly responsive form of social engineering. Survivors of suicides may have felt helpless and abandoned—as much as 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.

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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 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.

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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.³¹⁶ ³¹⁴ 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.

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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 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.

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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 r´egime 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 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. Pihlajam¨aki (ed.), Theatres of power: Social control and criminality in historical perspective (Jyv¨askyl¨a, 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.

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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 T¨onnies (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, T¨onnies 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 selfinterest.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 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. T¨onnies, Community and Society (Gemeinschaft und Gesellschaft) translated and edited by C. P. Loomis (East Lansing, Michigan, 1957).

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

2 Forfeiture in England and Wales 2 . 1 D E A L I N G W I T H S U I C I D E : LO R D S A N D PE O P L E The previous section showed that escheat for suicide in Scotland was meant to be punitive and deterrent, but in practice it was also a constructive exercise in lordship. For England the task of unravelling the meaning of forfeiture is harder because the most readily available source offers only a value judgement about the death—the inquest verdict of felo de se or non compos mentis—and an associated assessment of the value of goods and chattels forfeitable for the former. This decision had a bearing on whether forfeiture was possible, but tells the historian nothing directly about the judgment’s practical implications. Attributing blame at a coroner’s inquest was an end of sorts, but a ﬁnding was also part of an enduring process of judgement, discrimination, and enforcement that started with the identiﬁcation of a death as potentially unnatural and ended with disposal of both body and material assets. MacDonald and Murphy’s version of what happened in England was outlined in the introduction. They write that ‘the humble men who served on coroners’ juries were willing participants in the reign of severity’ that obtained in sixteenthand seventeenth-century England.¹ Perplexed by why members of communities should have chosen to persecute their hapless neighbours, they locate Tudor and Stuart inquests in a religious habitus policed by the church, fearful of, and vindictive towards, self-murder. They further seek a powerful external agent to enforce material penalties—and ﬁnd him in the royal almoner, who was able to secure large sums for himself, his master or mistress by using potent central courts to cow coroners’ inquests into registering verdicts of felo de se.² In the words of anthropologist James Scott: ‘The political struggle to impose a deﬁnition on an action and to make it stick is frequently at least as important as the action per se’.³ Here the almoner imposed a meaning on voluntary death that bolstered authority and served the material interests of the crown. Occasionally MacDonald and Murphy allude to the almoner’s duty to treat survivors mercifully, yet claim that such obligations rarely interfered with ¹ MacDonald and Murphy, Sleepless souls, 59. ² Ibid., 25, 28, 110. ³ J. C. Scott, Domination and the arts of resistance: Hidden transcripts (London, 1990), 206.

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the enrichment of the almoner and his master.⁴ The gradual replacement of felo de se verdicts with non compos mentis was partly due to a reduction in central supervision of coroners’ inquests, allowing feelings of sympathy, ideas of community solidarity, and concepts of private property to gain ascendancy. Local sentiment took on central authority—and won. A revised understanding of English suicide forfeiture depends on answering slightly different questions from those posed for Scotland since legal and administrative structures were quite different and understandings of forfeiture more subtly so. The normal English procedure for administering suicide forfeitures was franchisal. England had local franchises, but it also had a national franchisee in the person of the Great or Lord High Almoner, an ecclesiastical ﬁgure with an explicitly charitable and benevolent job of using proceeds from forfeiture ‘in alms’. Understanding patrimonial penalties in England means knowing what the almoner did about suicides, both the circumstances in which he sued in a court and how he operated outside one. We need to know the value of forfeitures and how they were handled in practice. The same questions need to be answered for other franchise holders entitled to suicides’ goods: lords of certain manors, honours, or other territories such as the Palatinate of Durham and ‘collective lordships’ of urban corporations. Suicide forfeiture has to be set in the context of ﬁnes or ‘amercements’ for offences, the forfeiture of living criminals, and the procedures for post-mortem probate, inter vivos bankruptcy, and collecting debt. The law of insanity and responsibility in England is analysed separately in 2.12. and 6.5a. The documentation is biased towards contested cases, and the problem for England is that the way claims to goods were asserted in disputes—hearings before Star Chamber or elsewhere—are much better documented than the apparently more normal composition arranged by deputy almoners with families or other creditors, whose Scottish equivalent is simpler to track. Forfeiture was undeniably unpopular in some camps, and during the 1640s and 1650s some legal reformers advocated its abolition for certain offences—including suicides, unless they had been imprisoned on a capital charge.⁵ However, there was logic behind embracing a mechanism administered to preserve social and economic networks rather than simply to expropriate for proﬁt. Forfeiture could mean outright loss of goods, and its point was to deter by punishing but, more normally, initiating it was an invitation to potential claimants to an estate to begin negotiating with almoner or other lord about the identiﬁcation, collection, and distribution of assets and liabilities.⁶ Any death created a period of ﬂux in which assets might be seized or transmitted by means that were legal, quasi-legal, ‘morally legal’, or positively ⁴ MacDonald and Murphy, Sleepless souls, 25, 81. ⁵ D. Veall, The popular movement for law reform, 1640–1660 (Oxford, 1970), 131. ⁶ House of Lords RO HL/PO/JO/10/1/64.

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illegal. Between one in three and one in four people made wills, but survivors generally moved quickly to amass and apportion the assets of testates and intestates alike. Proving title to certain classes of asset could be difﬁcult, making possession advantageous. Thus injunctions issued by former almoner Lancelot Andrewes as the new Bishop of Winchester in 1619 include an order to inquire ‘Whether doe any in your parish administer the goods of the dead without authority, or suppresse their wil or testament?’⁷ Like all bishops, Andrewes was concerned with the effects of the evasion of probate and of do-it-yourself settlements, both on his revenues and on the equitable winding up of estates. Other interested parties frowned on unofﬁcial distributions, and at the sixteenthcentury manor of Dernhall in Cheshire there was a prohibition against using lykewakes as occasions for selling the goods of deceased tenants without the lord’s permission.⁸ Yet such settlements were common. Peter Earle has shown for late seventeenth- and early eighteenth-century London that it was normal for executors to begin to collect or settle debt and other personal estate between the time of death and the compiling of an inventory.⁹ When a relation looked like he was about to die after a suicide attempt in 1668, the diarist Samuel Pepys was one example.¹⁰ The time between death and burial (or even the period when someone was obviously dying) was an active one for settling affairs, both formally and informally. The same was true in felony cases of the time between accusation and conviction. In recognition, ofﬁcials could be rewarded with a share of forfeitures if they acted quickly in respect of felons’ goods.¹¹ Seizure of goods (or even knowing who had them) allowed ofﬁcials to create order in a community. When James Sutton reported to the Duke of Somerset’s coroner after the death of Thomas Rothbery, weaver in Embleton (Cumb.), he showed concern as much for Rothbery’s creditors as for his master: ‘I have seized and secured all his websters materialls which I judge may amount to about 3 or 4lib money. I am conﬁdent there is [more] which they conceale from me’.¹² Neighbours and friends may sometimes have assumed that obligations to them should be fulﬁlled before those to the crown, as seems often to have been accepted ⁷ K. Fincham (ed.), Visitation articles and injunctions of the early Stuart church 2 vols (Woodbridge, 1998), vol. 1, 183. This was a common injunction. Ibid., 13, 36, 42, 47, 75–6, 107, 128, 135, 145, 167, 195, 201, 208–9. In contrast, prosecutions for wrongdoing in connection with probate were rare in the church courts. R. A. Houlbrooke, Church courts and the people during the English Reformation, 1520–1570 (Oxford, 1979), 94–5. ⁸ G. Ormerod, The history of the county palatine and city of Chester 3 vols. (London, 1819), vol. 1, liii. ⁹ P. Earle, The making of the English middle class: Business, society, and family life in London, 1660–1730 (London, 1989), 118. ¹⁰ R. Latham and W. Matthews (eds), The diary of Samuel Pepys 11 vols. (London, 1971–2001), vol. 9 (1976), 32–4. ¹¹ R. Stewart-Brown, The serjeants of the peace in medieval England and Wales (Manchester, 1936), 6. ¹² CRO D/LEC/CRI/22/1.

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practice.¹³ Indeed, some of the disputes illuminated in court cases arose because individuals felt entitled to items because of custom or a verbal promise or a testament—or they were concerned that they would have trouble securing their rights at law—and did not see the need to wait for delivery by administrators.¹⁴ Frequently alluded to in court cases, alleged (undocumented and thus possibly ﬁctitious) pre-mortem transfers of goods and cash made by felones de se may have been a way of covering up this piecemeal redistribution, beneﬁciaries relying on possession to protect them from other claims.¹⁵ The stance of family and friends in this complex and charged environment is only one interpretation of a proper distribution of assets post mortem. The main concern of almoners (and other franchise holders) was to balance the needs of families and sections of communities against those of a wider universe of interested parties—of whom the lord and the family were just two. Their aim was to ensure as far as possible that all creditors were fairly treated and that, for some, indebtedness did not become permanent or loss total. This was a defence of ‘community’ more widely construed than a set of local sympathies or sectional solidarities. Siding with family and community may appear more disinterested and benign, especially to those ideologically opposed to the intervention of ‘the state’ or ‘the church’. However, any attempt to include, protect or favour one set of interests meant excluding, ignoring, or depriving another. Indeed, medieval and early modern ‘village studies’ have made it abundantly clear that communities were not automatically solidarities, even against outside forces, and that no obvious ‘community’ (such as women) was without profound internal divisions.¹⁶ Suits involving the almoner give an impression of centre v. locality because of the oppositional postures required by accusation and defence in court. What the charges and denials reveal instead are the tensions within local social and economic networks: differences of opinion rather than uniformity of purpose. The almoner or other lord was more a part of the solution to a problem caused when survivors of a suicide took too narrow a deﬁnition of their role as members of a ‘common weal’. Suicide created unity of aim for some interpersonal alignments, but disarray for others, and it is from this confusion that franchisees sought to bring order, potentially reducing risk and increasing certainty both for the individual and ¹³ D. Beaver, ‘ ‘‘Sown in dishonour, raised in glory’’: Death, ritual and social organization in northern Gloucestershire’, SH 17 (1992), 399. ¹⁴ A. W. B. Simpson, A history of the common law of contract: The rise of the action of assumpsit (Oxford, 1987), 440–1n. For example, J. C. Hudson, Plain directions for making wills in conformity with the law . . . (London, 1839), 68–9, notes that by the custom of the ecclesiastical province of York, inheriting any real estate excluded an heir from sharing the movables. ¹⁵ W. J. Jones, ‘The foundations of English bankruptcy: Statutes and commissions of the early modern period’, Transactions of the American Philosophical Society 69 (1979), 31–3. ¹⁶ M. Rubin, ‘Small groups: Identity and solidarity in the late Middle Ages’, in J. Kermode (ed.), Enterprise and individuals in ﬁfteenth-century England (Stroud, 1991), 132–50. L. A. Pollock, ‘Childbearing and female bonding in early modern England’, SH 22 (1997), 286–306.

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the group. The problem that some survivors had with forfeiture was not that the crown or other lord deprived them of material assets, but that it took away choice about whom to include and whom to exclude in distributing movable estate. For other survivors an outsider like the almoner, who could use his authority to solve local disputes and maintain social equilibrium, was as likely to be welcomed as undermined. For their part, private estate papers suggest that the lord’s intervention might be sought not only after a suicide, but in any situation where unilateral action potentially meant unfairness in distributing assets after death.¹⁷ Suicide forfeitures were one aspect of a pervasive concern with issues of trust in early modern England. Nobody believed honesty could be taken for granted, and legislators and writers alike puzzled about how to ensure it; Elizabethan and Jacobean literature and theatre were also much concerned with sincerity and transparency, both in the presentation of the self and in dealings with others.¹⁸ Laws and practices surrounding debt and credit reﬂected this. Tudor and Stuart bankruptcy law (1542, 1570, 1604, 1623, 1662) was based on the presumption that merchants’ and traders’ creditors needed to be protected against people who were at best evasive, and at worst fraudulent.¹⁹ Debt was an issue of character. Over time, laws established procedures for summoning parties suspected of concealing property, creating a common agent for seizing and administering assets, and establishing that creditors shared a community of interests.²⁰ The provisions of early bankruptcy legislation were designed to deal with dishonest and amoral practices (speciﬁcally intentional evasion) similar to the ones for which we shall see the almoner suing in Star Chamber.²¹ These included: (1542) ‘concealment’ and ‘collusions’; (1570) clauses providing a ‘penalty of such as be examined, that will not disclose the truth’ and ‘a remedy against those who detain the goods of the bankrupts’; and (1604) conveying into other men’s names.²² Early bankruptcy laws were ‘enacted to meet cases of fraud for which the ordinary forms of law did not offer effectual remedy’.²³ Of course, not all suicides were ¹⁷ J. Broad, Transforming English rural society: The Verneys and the Claydons, 1600–1820 (Cambridge, 2004), 185–6. ACA M/III/2b/3. DP/D2/1/145. ¹⁸ P. Zagorin, ‘Ways of lying: Dissimulation, persecution and conformity in early modern Europe’ (Cambridge, MA, 1990). ¹⁹ E. Christian, The origin, progress, and present practice of the bankrupt law, both in England and Ireland 2 vols (London, 1818), vol. 1. J. Hoppit, Risk and failure in English business, 1700–1800 (Cambridge, 1987), 18–28. M. Quilter, ‘Daniel Defoe: Bankrupt and bankruptcy reformer’ JLH 25 (2004), 53–73. ²⁰ Jones, ‘English bankruptcy’, 18, 30–1, 44. ²¹ T. G. Barnes, ‘Star chamber and the sophistication of the criminal law’, Criminal Law Review (1977), 324. R. H. Helmholz, ‘Bankruptcy and probate jurisdiction before 1571’, Missouri Law Review 48 (1983), 415–29. 13 Eliz. c. 5 banned transfers between crime and conviction designed to defraud the crown. W. Blackstone, Commentaries of the laws of England 4 vols. (Oxford, 1765–9), vol. 2, 421. King’s Bench, Trin. 5 Will. & Mary (Jones v. Ashurt). ²² Christian, Bankrupt law, vol. 1, 5–7, 18–20, 29–30. ²³ Hoppit, Risk and failure, 28, quoting parliamentary commissioners of 1840.

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either bankrupts or frauds and nor were their survivors always deceitful, but English society was particularly sensitive to those who were, and lords created mechanisms to handle them. Forfeiture dealt with a worst-case scenario by punishing vicariously and by controlling asset distribution, but it had within it ﬂexibility.

2 . 2 F O R F E I T U R E , L AW, A N D C O N S C I E N C E : LO R D S H I P A N D C O M M U N I T Y I N A N AG E O F L E G A L C H A N G E , c. 1 5 3 0 – 1 7 0 0 English terminology for criminal forfeiture was different from Scottish. English lawyers conceived of ‘eschete’ as forfeiture of land by a tenant holding in fee simple, and the word did not apply to forfeiture of goods, which was classed as ‘corone’.²⁴ Mere suicides did not lose lands: ‘felo de se shall forfeit his goods, and yet was never attainted’.²⁵ Who had claim to these movable assets after death? For creditors of the ordinarily deceased there was a more or less clear ranking. Henry Swinburne’s inﬂuential Elizabethan manual on wills and testaments prioritized debts in descending order: crown; debts on statute merchant; court judgments; bonds; simple bills on specialty (discussed below); unwritten obligations.²⁶ The 1677 edition warned against paying any debts without specialty (except servants’ wages) until other categories had been satisﬁed. On paper, at least, the situation for blameworthy suicides was drastically simpliﬁed, for the crown or someone delegated with its powers took all. According to Sir Richard Bolton, chief baron of the Court of Exchequer in Ireland, ‘the goods of felo de se, be not forfeited till his death be presented & found of record; neither can these goods be claimed by lords of liberties etc but by the King’s grant, because the King is intitled by matter of Record’.²⁷ This is why after 1487 coroners had to ﬁle inquest verdicts with assize judges or King’s Bench, and why almoners’ grants and court submissions mention that a verdict ²⁴ W. Staunford, An exposition of the Kinges Prerogatiue (London, 1577), ff. 38–40, 44v–50. Simpson, Land law, 19. Jacob, Law-dictionary, ‘escheat’, warns of possible confusion with ‘forfeiture’. Later on, J. Scriven, A treatise on copyholds, customary freeholds, ancient demesne, and the jurisdiction of courts baron and courts leet (London, 1823), 740, was sure that felons only forfeited rather than escheated. Confusingly, the English-leaning Scottish jurist Stair saw ‘forfeiture’ as ‘the great conﬁscation’ for treason, extending to life, lands, and goods, but his interpretation was unusual among his peers. Stair’s Institutions III.III.28. ²⁵ M. Dalton, Ofﬁcium Vicecomitum. The ofﬁce and authority of sheriffs: gathered out of the statutes and books of the common laws of this kingdom (London, 1682), 70. ²⁶ H. Swinburne, A briefe treatise of testaments and last wils (London, 1635), part 6, ch. 16. ²⁷ R. Bolton, A Justice of Peace for Ireland (Dublin, 1683), book 1, 51. W. Nelson, The ofﬁce and authority of a Justice of Peace . . . (London, 1710), 259. A liberty was an area outside a Sheriff’s jurisdiction.

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had been ‘recorded’.²⁸ The record was of a felo de se, not of the goods found by the inquest, for the forfeiture covered all ‘goods and chattells, obligacons & indentures of leases for yeares, ready money, plate, jewells, household stuffe and utensills . . . somes of money coming to him by . . . obligacons and bills and also divers debts owing to him’.²⁹ Conviction for felony was not properly incapacity, but a forfeiture of goods (the true criterion of felony) that meant there was nothing to bequeath. A judgment in the Elizabethan Exchequer established that the only debt of a felo de se was to the Queen or to a royal grantee, for the whole personal estate was vested in the monarch.³⁰ Lawyer John Godolphin (following Swinburne) described the felo de se as ‘intestable’.³¹ In theory, an executor as creditor had preference, but in the case of a felo de se there were no goods over which to exercise executory. Nor had prior pledges any validity. Asked in 1688 whether a pre-mortem promise that a felo de se’s husband should ‘have any goods at her dispose’ over-rode that of a lord’s right to forfeiture of those goods, counsel said not.³² The crown was the ultimate creditor and indebtedness to the monarch was a useful legal fact, allowing such debtors privileged access to the Exchequer, and, after 1649, a useful legal ﬁction.³³ Debts and bonds ‘cannot be legally assigned unless to the king’.³⁴ What did the crown do about liabilities? A late sixteenth-century memorandum book and formulary for a Sheriff or coroner advised that ‘if a felon of himselfe do owe any debts they ought not to be paid because the Queen in such causes payeth no debts’.³⁵ This was simply a restatement of what any early modern lawyer knew: that the holder of the royal prerogative was the most protected debtor, ²⁸ 3 Hen. VII c. 2. 1 Hen. VIII c. 7, prohibited the taking of fees where misadventure was judged. J. Godolphin, The orphan’s legacy: or, A testamentary abridgment: In three parts. I. Of last wills and testaments. II. Of executors and administrators. III. Of legacies and devises (London, 1701), 216. This part of the treatise drew heavily on common-law materials. J. H. Baker, Monuments of endlesse labours: English canonists and their work, 1300–1900 (London, 1998), 82. Leicestershire RO DE1431/295. In Wales some coroners’ inquests were recorded at the Court of Great Sessions. ²⁹ DUA CCB B/189/18. ³⁰ 4 Leon. 6, pl. 28 (Hil. 26 Eliz.). 1 Plowden 261, citing Hales v. Petit (1562). ³¹ Godolphin, Orphan’s legacy, 37. Swinburne, Treatise, pt. 2, ch. 13. The word may be deliberately similar to ‘intestate’ because until the thirteenth century the goods of ‘desperate’ or persistently intestate people were forfeited to the lord—and only later handled by the church. Pollock and Maitland, History of English law, vol. 2, 359. Bailey, In goods of, 2 S. & T. 156 [ER 164, 953]. English law in this respect followed Roman. Vandekerckhove, On punishment, 99. ³² Nottinghamhire RO DD/4P/78/29. ³³ F. Pulton, An abstract of all the penall statutes which be generall, in force and use . . . (London, 1592), ‘Accomptants and debtors to the Queene’. Blackstone, Commentaries, vol. 3, 45. NA E178/4693 inquisitions about crown debtors, Westmorland (7&9 JI), shows escheators pursuing such people. W. H. Bryson, The equity side of the Exchequer: Its jurisdiction, administration, procedures and records (London, 1975), 17–18, 25, 28. One example of the ﬁction is that Exchequer had jurisdiction over breach of promise of marriage. ³⁴ Nottinghamshire RO DD/4P/78/30. ³⁵ Nottinghamshire RO DD/E/67/1. Quoted in C. A. Loar, ‘ ‘‘Go and seek the crowner’’: coroners’ inquests and the pursuit of justice in early modern England’, (Northwestern University Ph.D., 1998), 131.

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who could not be sued, dispossessed, taxed, or distrained.³⁶ On the face of it, the law was simple and left little for anyone except the crown or its franchisee. However, this did not preclude the monarch, aware that the law prevented the use of prerogative to do injury, from trying to ensure that whoever handled the estate satisﬁed creditors. While discussing forfeiture in the mid-eighteenth century, lawyer William Blackstone offered a balanced historical analysis when he allowed ‘that the letter of the law herein borders a little on severity, yet it is some alleviation that the power of mitigation is left in the breast of the sovereign, who upon this (as on all other occasions) is reminded of the oath of his ofﬁce to execute judgement in mercy’.³⁷ When an almoner or another franchised lord dealt with forfeiture he acquired associated responsibilities. Texts on the workings of Star Chamber and digests of cases were careful to note precedents such as that from 1558 (cited in 1602) where a man handed over beasts in exchange for two sureties worth £40, then killed himself: the almoner was granted the beasts by Star Chamber, but had to discharge the sureties.³⁸ This example shows that the almoner did not have the sovereign immunity from suit enjoyed by the king, his Council, and their agents; there are judgements against him in central courts throughout the sixteenth and seventeenth centuries.³⁹ The almoner was between crown and people rather than with the crown against the people, struggling with the same issues of enforcing trust and accountability that created problems for anyone involved in early modern debt and credit relationships. Rights carried responsibilities, and any franchise was like a royal commission ‘granted as well for the commonwealth as for the advantage of the party’, as Chief Justice Fineux put it in 1519.⁴⁰ The franchisee had to consider the burdens as well as the assets of an estate, assigning the parcel to kin or other creditors either gratis or in exchange for a fee. Yet it was rarely straightforward for anyone to collect debts. In the medieval period debts due by informal contracts died with the debtor, and thus executors and administrators were not usually liable for simple contract debts.⁴¹ Executors were in a strong position ³⁶ G. R. Elton, ‘The rule of law in sixteenth-century England’, in A. J. Slavin (ed.), Tudor men and institutions: Studies in English law and government (Baton Rouge, 1972), 271–2. W. M. McGovern, ‘Contract in medieval England: Wager of law and the effect of death’, Iowa Law Review 54 (1968–9), 44. ³⁷ Blackstone, Commentaries, vol. 4, 190. ³⁸ W. P. Baildon (ed.), Les reportes del cases in camera stellata 1593 to 1609 (Privately printed, 1894), 127. 2 Dyer 160b. ³⁹ J. H. Langbein, Torture and the law of proof: Europe and England in the ancien r´egime (London, 1977), 130. W. H. Bryson, Equity cases in the Court of Exchequer, 1660 –1714 (Tempe, Az., 2007), case 158. S. J. Gunn, Early Tudor government, 1485–1558 (London, 1995), 173. ⁴⁰ Quoted in H. Garrett-Goodyear, ‘The Tudor revival of quo warranto and local contributions to state building’, in M. S. Arnold et al (eds), On the laws and customs of England (Chapel Hill, 1981), 248. ⁴¹ J. H. Baker (ed.), Reports of cases from the time of King Henry VIII 2 vols consecutively paginated (London, 2003–4), 203, 234–5, 281. Simpson, Assumpsit, 84, 558. An executor was nominated in

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to cream off surplus assets, and ﬁfteenth- and sixteenth-century probate cases that made it to Chancery judgment often included a stipulation to direct such assets to the ordinary for pious uses. The Probate Act of 1530 required executors to enter into a bond or oath properly to carry out their role, but only in the reign of James I was the executor compelled to distribute the residue among the kin of the deceased, as should have happened in cases of intestacy.⁴² Even then, advice manuals warned the godly against leaving charity to their executors.⁴³ An almoner or his deputy helped resolve some of these problems, performing a valuable service when the goods of a felo de se could not go through the normal probate process. Forfeiture to the crown dissolved any existing title to the goods and allowed distribution to start afresh.⁴⁴ The almoner’s authentication parcelled up and gave title to assets declared by survivors.⁴⁵ He required administrators to pay out debts owed as well as collecting those due, and there is a strong sense in many almoner interventions that enforcement of heirs’ or executors’ obligations was at the heart of disputes that led to his involvement.⁴⁶ A judgment in the Court of Common Pleas during the 1540s described an executor as like an almoner on behalf of the dead, but by the same token the royal almoner acted like a good executor.⁴⁷ Regardless of who the creditor was, the form an obligation took mattered to how easily it could be recovered. In a Star Chamber case of 1567 ‘a debt due to the felo de se without specialty, was adjudged not to be forfeited, neither could the almoner recover any thing for it; and the reason given is, for that if it were so, the debtor should be barred of waging his law; which were dangerous, for so once a will, an administrator was appointed to deal with intestacy or intestability. Godolphin, Orphan’s legacy, 37, 118, 302. There were ways of recovering debts owed by, or to, the dead, such as manor court litigation. E. Clark, ‘Debt litigation in a late medieval English vill’, in J. A. Raftis (ed.), Pathways to medieval peasants (Toronto, 1981), 252. ⁴² W. J. Jones, The Elizabethan Court of Chancery (Oxford, 1967), 415. P. Maddern, ‘Friends of the dead: executors, wills and family strategy in ﬁfteenth-century Norfolk’, in R. E. Archer and S. Walker (eds), Rulers and ruled in late medieval England (London, 1995), 164–74. J. Bower, ‘Introduction to probate accounts’, in P. Spufford (ed.), Index to the probate accounts of England and Wales 2 vols. (London, 1999), vol. 1, xix. Helmholz, ‘Bankruptcy and probate’, 417–18, notes that executors could refuse to take on an estate (usually because it was heavily burdened by debt), but that such estates, while handled as intestacies, were administered as closely as possible to the testator’s wishes—or, presumably, to the custom of the ecclesiastical province. Ecclesiastical courts could appoint as administrators those who had refused to be executors. P. Fleming, Family and household in medieval England (London, 2001), 84–5. ⁴³ R. Brathwait, The English gentleman; and the English gentlewoman (London, 1641), 240–2. ⁴⁴ Blackstone, Commentaries, vol. 2, 409. ⁴⁵ R. H. Helmholz, ‘Debt claims and probate jurisdiction in historical perspective’, AJLH 23 (1979), 68–82, 74–7. ⁴⁶ ‘Heirs’ or ‘heirs at law’—strictly kin appointed to take assets in the absence of a testament—were so liable, able to sue and be sued. McGovern, ‘Contract in medieval England’, 38. R. N. Swanson, Church and society in late medieval England (Oxford, 1989), 307–8. ⁴⁷ Baker, Cases . . . of King Henry VIII , 342.

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a debt without specialty should always remain against a subject’.⁴⁸ Commonly used to deny a debt, ‘wager of law’ was a robust and popular procedure. Based on an oath taken with compurgators or oath-helpers, it remained an important tool in debt litigation into the Tudor period, was still known to Blackstone, and was not abolished until 1833.⁴⁹ However, it also created loopholes: the fact that executors could not swear to a debt was used to avoid liability for a dead person’s debts without specialty.⁵⁰ Denial was a defence used by Welshman John Kynon when almoner Anthony Watson alleged he owed money to a Carmarthen felo de se in 1595: ‘neyther [by] oathe nor dyd [deed]’.⁵¹ When almoner John Piers sued twelve debtors to the earl of Northumberland before Exchequer c.1586/7 he only had a written obligation from one. His request for a subpoena is therefore prefaced: In consideration whereof and for that your orator [the almoner] knoweth not the certeine tymes nor places of the said severall Contractes nor such other needfull requisites for the proofe therof and of everie of them as that he is able by the stricte course of the Common lawes to meynteine suite account for the same and yet doth verelie beleve that the parties aforesaid and every of them opon theire othes woulde confesse and acknowledge the said dewties debtes and contractes to be unpaid and unperformed.⁵²

In contrast, ‘debts on specialty’, also called conditional or formal obligations, were contracts under seal, which had to be specially pleaded before a judge and jury.⁵³ They had a different standing from simple contract, including a priority in satisfaction of creditors and, until abolished in 1833, they could be used, for example, to charge heirs or executors with payment of debts.⁵⁴ This explains Dalton’s understanding of forfeiture in his early seventeenth-century handbook for judges: ‘by the Common Law, if a man kill himselfe (either with a meditate hatred against his owne life, or out of distraction, or other humor) he is called Felo de se; and he shall forfeit to the king all his goods and chattels reall and ⁴⁸ Hudson, ‘Star Chamber’, 58. Hudson noted that a contrary verdict in the reign of Philip and Mary had been entered on the grounds of equity alone. With the voice of a common lawyer, he sternly warned that ‘the rules of law are more certain than those of equity’. Ibid., 59. The judgment needs to be seen against the background of the rise of assumpsit, which allowed creditors to sue debtors’ executors and creditors’ executors to sue debtors. J. H. Baker, ‘New light on Slade’s case, part II’, Cambridge Law Journal 29 (1971), 213—36. D. Ibbetson, ‘Sixteenth century contract law: Slade’s case in context’, Oxford Journal of Legal Studies 4 (1983), 295–317. J. H. Baker, An introduction to English legal history (London, 2002), 341–5. ⁴⁹ McGovern, ‘Contract in medieval England’, 19–38. W. A. Champion, ‘Recourse to the law and the meaning of the great litigation decline, 1650–1750: Some clues from Shrewsbury local courts’, in C. Brooks and M. Lobban (eds), Communities and courts in Britain, 1150–1900 (London, 1997), 187. J. H. Baker, The Oxford history of the laws of England. Volume VI, 1483–1558 (Oxford, 2003), 835–7. ⁵⁰ D. Ibbetson, A historical introduction to the law of obligations (Oxford, 1999), 32–3, 134. ⁵¹ NA STAC 5 A16/33. ⁵² Northumberland RO 1/DE/8/110. ⁵³ Bankton, Institute, I.XI.19. ⁵⁴ McGovern, ‘Contract in medieval England’, 42–3. The priority of specialty was not wholly abolished until 1869. Ibid., 57.

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personall, and his debts due to him by specialtie (but no debts due to him without specialtie, or upon simple contract. Dyer 262. 16 Ed. 4.7 )’.⁵⁵ Those who wanted to recover unsealed debts had to resort to a court of equity—even the almoner. Informal or simple obligations without specialty were not generally recognized at common law before the sixteenth century.⁵⁶ Instead, ethical principle allowed the enforcement of promises so that actions of ﬁdei laesio were used in the later Middle Ages to enforce oral agreements that had the weight of oaths, the church claiming that invocation of the deity gave them a locus in the matter.⁵⁷ As late as the 1490s two-thirds of Hereford consistory court actions were for debt, but the church’s jurisdiction over breach of faith was gone by the 1550s and 1560s.⁵⁸ By this date too, testamentary debt had largely ceased to be cognizable by the probate courts.⁵⁹ This created the early modern distinction between wills proved in a probate court and debt claims litigated in a court of general jurisdiction.⁶⁰ The new supervisory role of King’s Bench under the Tudors was part of what John Baker calls ‘a sub-text of jurisdictional readjustment, not only between central and local but also between lay and spiritual courts’.⁶¹ Other types of court like Chancery encroached on areas such as trusts, legacies, and testamentary debt; common-law courts took over much of the church courts’ slander business during the sixteenth century.⁶² Yet ecclesiastical remedies still covered a broader range of obligations and allowed a wider array of sanctions than the common law.⁶³ The church courts’ testamentary business grew strongly in the sixteenth century, even if their fees meant they were no more ‘popular’ than some other aspects of ecclesiastical justice.⁶⁴ And under Elizabeth, Common ⁵⁵ M. Dalton, The countrey justice . . . (London, 1626), 235. Other texts cited opinions that debts on simple contract were forfeited. Bolton, Justice of Peace, book 1, 160. Simpson, Assumpsit, 559. ⁵⁶ J. M. Holden, The history of negotiable instruments in English law (London, 1955), 66. McGovern, ‘Contract in medieval England’, 42, 44. ⁵⁷ R. Cosin, An apologie: of, and for sundrie proceedings by iurisdiction ecclesiasticall, of late time by some challenged (London, 1591), 51–2. ⁵⁸ R. H. Helmholz, ‘Assumpsit and ﬁdei laesio’, Law Quarterly Review 91 (1975), 427. ⁵⁹ B. L. Woodcock, Medieval ecclesiastical courts in the diocese of Canterbury (London, 1952), 109–10. Houlbrooke, Church courts, 39. P. Brand, ‘Aspects of the law of debt, 1189–1307’, in P. R. Schoﬁeld and N. J. Mayhew (eds), Credit and debt in medieval England, c.1180–c.1350 (Oxford, 2002), 22–3, 31–3. Simpson, Assumpsit, 559–60, argues that the payment of legacies could be enforced in spiritual courts, but not debts. ⁶⁰ Helmholz, ‘Debt claims and probate’, 68. R. H. Helmholz, The Oxford history of the laws of England. Volume 1: the canon law and ecclesiastical jurisdiction from 597 to the 1640s (Oxford, 2004), 523–6. Strictly, a will was used to transmit land, a testament chattels. R. B. Outhwaite, The rise and fall of the English ecclesiastical courts, 1500–1860 (Cambridge, 2006), 33. R. C. Palmer, Selling the church: the English parish in law, commerce, and religion, 1350–1550 (London, 2002), 65–6. ⁶¹ Baker, Laws of England, 1483–1558, 15. ⁶² Jones, Chancery, 400–17. M. Ingram, Church courts, sex and marriage in England, 1570–1640 (Cambridge, 1987), 295–9. ⁶³ Helmholz, ‘Assumpsit and ﬁdei laesio’, 411–12, 424–5. R. M. Wunderli, London church courts and society on the eve of the reformation (Cambridge, Mass., 1981), 106. ⁶⁴ Outhwaite, English ecclesiastical courts, 33–5.

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Pleas still saw a difference between a contract and a promise, the latter retaining solemn connotations.⁶⁵ An action for debt before an ecclesiastical or equity court depended on the debtor’s soul and conscience and, if successful, could compel a defendant to perform his undertaking in kind. In the sixteenth century a procedure called ‘assumpsit’ began gradually to replace wager of law and to ﬁll the gap left by the church courts.⁶⁶ It became possible to use actions of assumpsit or ‘trespass on the case’ (which latter phrase could also include ‘trover’ and civil defamation) for the recovery of damages by reason of the breach or non-performance of contract.⁶⁷ Goods and debts of felones de se eventually became recoverable by action of trover before Exchequer or King’s Bench.⁶⁸ In contrast with an ecclesiastical or equity action, assumpsit alleged that a debtor’s deceit had occasioned speciﬁc (usually ﬁnancial) damage, which could be compensated.⁶⁹ Albert Kiralfy describes the development of ‘action on the case’ as ‘perhaps the most important single achievement of English Common Law. It has provided the principal way of escape from the mediaeval law, the great bridge to the legal relations of modern times’.⁷⁰ These actions eventually rendered the need for the almoner’s or other lord’s intervention superﬂuous by making inroads on the immunity of executors, so that eventually liability for breach of informal contracts became passively transmissible to personal representatives.⁷¹ The process by which assumpsit was substituted for an old action for debt came some time after the early sixteenth-century decline of ecclesiastical courts’ jurisdiction over breach of sworn promises to pay (and many other areas of life).⁷² Actions of assumpsit had their origins in the Middle Ages and were established by the 1530s, but they began to be used more extensively from the end of Elizabeth’s reign, and became common in the borough courts of southern England by the ⁶⁵ Ibbetson, Law of obligations, 135–8. ⁶⁶ Helmholz, ‘Assumpsit and ﬁdei laesio’, 409. D. J. Guth, ‘Notes on the early Tudor Exchequer of Pleas’, in Slavin (ed.), Tudor men and institutions, 117–18. ⁶⁷ Muldrew, Economy of obligation, 206–9. Trover was an action for damages ‘based on the detention or disposal of the plaintiff’s goods while in someone else’s hands’. Ibid., 389. D. Ibbetson, ‘Assumpsit and debt in the early sixteenth century: The origins of the indebitatus count’, Cambridge Law Journal 41 (1982), 142–61. S. P. De Cruz, ‘Assumpsit, consideration and third party rights’, JLH 7 (1986), 53–67. V. V. Palmer, ‘The history of privity—the formative period (1500–1680)’, JLH 33 (1989), 3–52. D. H. Sacks, ‘The promise and the contract in early modern England: Slade’s case in perspective’, in V. Kahn and L. Hutson (eds), Rhetoric and law in early modern Europe (London, 2001), 28–53. Potter, Equity, 41, 54, 60–1, 101–3. ⁶⁸ Scriven, Treatise on copyholds, 757–8. ⁶⁹ C. Cottu, On the administration of criminal justice in England (London, 1822), 132–3. ⁷⁰ A. K. Kiralfy, The action on the case: An historical survey . . . (London, 1951), 1. ⁷¹ Simpson, Assumpsit, 558. Baker, ‘New light II’, 232. W. M. McGovern, ‘The enforcement of informal contracts in the later Middle Ages’, California Law Review 59 (1971), 1192. Jones, Chancery, 410–16. O. W. Holmes, ‘Executors in early English law’, Harvard Law Review 9 (1895), 42–8. Ibbetson, Law of obligations, 32–3. ⁷² Helmholz, ‘Assumpsit and ﬁdei laesio’. Wunderli, London church courts, 19–23. Potter, Equity, 42–3.

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second quarter of the seventeenth century.⁷³ Bristol is a prominent exception to early local adoption, and in Carlisle too the transition from action for debt to assumpsit came quite late and rather abruptly in the 1670s as lawyers adjusted to new legal methods.⁷⁴ At the central courts, cases of assumpsit grew only gradually over the century, possibly because important ﬁgures like Ellesmere (and the court of Common Pleas) did not approve of it, though decisions at King’s Bench in 1602 and 1611 established the right to recover debt by action of assumpsit, and that assumpsit could lie against executors to recover their testator’s debts.⁷⁵ At King’s Bench and Common Pleas, executors became liable for both indebitatus and collateral assumpsit in the 1610s and 1620s.⁷⁶ King’s Bench was a good resort for litigants, because by Elizabethan times it entertained actions of debt by use of a simple ﬁction.⁷⁷ However, assumpsit had considerable procedural difﬁculties that hinged on the difference between actions for debt and damages and it was not until well after the Restoration (formalized in 1697) that it ﬁnally became clear that creditors could recover debts—a fact which may explain why Interregnum calls for legal reform, such as William Sheppard’s, included this as a grievance.⁷⁸ During the transitional period claimants lacked certain means to pursue their interests, though the persistence and adaptability of manor courts in parts of England may have helped to ﬁll the gap for small debts.⁷⁹ In the longer term, changes in the law of obligations, driven by a desire to use forms of action where debtors could not easily avoid liability for informal contracts, meant that registering forfeiture as a way of gaining access to assets became superﬂuous.⁸⁰ The sixteenth and seventeenth centuries were a period of profound legal change, and the law of obligations altered from a rigid conception of debt to a more accommodating environment where informal contracts were easier to enforce. Yet English mechanisms for dealing with suicide also exemplify continuity with the ideals and practices of dispute settlement, by law and arbitration, that had characterized the Middle Ages. When seeking to understand what the almoner and other lords did it is well to bear in mind that changes in English law in the late ﬁfteenth and sixteenth centuries took place within inherited ‘self-executing, medieval forms ingeniously adapted to post-medieval’ ⁷³ Champion, ‘Recourse to the law’, 186–7. ⁷⁴ Muldrew, Economy of obligation, 208. ⁷⁵ Baker, English legal history, 345, citing Slade v. Morley (1597–1602) B. & M. 420, and Pynchon v. Legat (1611) B. & M. 455. T. F. T. Plucknett, A concise history of the common law (London, 1956), 436–56. A. Harding, A social history of English law (Harmondsworth, 1966), 102–6. L. A. Knaﬂa, Law and politics in Jacobean England: the tracts of Lord Chancellor Ellesmere (Cambridge, 1977), 118–21. ⁷⁶ Ibbetson, Law of obligations, 132–4. ⁷⁷ Baker, ‘New light II’, 215. ⁷⁸ W. Sheppard, Englands balme: or, proposals by way of grievance & remedy; humbly presented to his highness and the parliament: towards the regulation of the law and better administration of justice, etc. (London, 1657), 212. Simpson, Assumpsit, 572–3. Ibbetson, Law of obligations, 150–1. ⁷⁹ C. W. Brooks, Law, politics and society in early modern England (Cambridge, 2008), 266–77. ⁸⁰ Ibbetson, Law of obligations, 296.

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circumstances.⁸¹ The link between assumpsit and ﬁdei laesio is one. As Baker reminds us, ‘[r]eform is always easier to vindicate than conservation’, but existing forms could, and did, adapt creatively to serve a wide range of needs.⁸² The most ﬂexible was equity. In Scotland, the Lords of Session became the court of last resort in all civil cases by 1532, combining Scotland’s own common law with equity into a single system headed by ‘the Session’ (later the Court of Session). Late medieval and early modern England had a plural legal system: common, canon, ecclesiastical, equity, and customary law courts (among others) each had its own separate niche and fortunes. English historians tend to focus on the triumph of common law exempliﬁed by assumpsit, but equity (broadly conceived) was arguably the most dynamic and responsive category of law in the ﬁfteenth and sixteenth centuries. From c.1450 Chancery played a crucial role in the gradual process by which interests were guaranteed on the grounds of conscience.⁸³ Alongside other central courts like Star Chamber and Requests, local equity jurisdictions had developed in the late ﬁfteenth and early sixteenth century in London and the counties palatine of Chester, Durham, and Lancaster.⁸⁴ An example of an active, even ‘muscular’ tribunal, which dealt with a wide range of debt matters using equity, was the Exchequer of the Palatinate of Chester, a court that after the Restoration became principally concerned with small debts.⁸⁵ Tudor plaintiffs before this court sued by appeal to equity and conscience, ‘and this for God’s love’.⁸⁶ The attraction of Chancery and other equity or prerogative courts was that they had facilities for arbitration and extra-legal compromise not strictly available at common law, coupled with an ‘impressive armoury of enforcement potential’.⁸⁷ While strictly a criminal court offering redress for wrongs accompanied by the illegitimate use of force, Star Chamber enabled offences against private property to be treated as public crimes. Phrases like ‘vi et armis’ in the bills of complaint were almost always ﬁctions, but necessary to claim that the king’s peace had been broken. They were also a way of deﬁning a speciﬁc type of simple ⁸¹ S. E. Thorne, ‘Tudor social transformation and legal change’, New York University Law Quarterly 26 (1951), 21. ⁸² Baker, ‘New light II’, 216–17, 228–30. ⁸³ J. A. Guy, ‘The development of equitable jurisdictions, 1450–1550’, in E. W. Ives and A. H. Manchester (eds), Law, litigants and the legal profession (London, 1983), 81. Guy refers to the enforcement of the duties of trustees or feoffees in land transfers called ‘uses’, an area where common law proved deﬁcient in the ﬁfteenth century. ⁸⁴ Bryson, Equity side, 7, 30. W. J. Jones, ‘Palatine performance in the seventeenth century’, in P. Clark, A. G. R. Smith and N. Tyacke (eds), The English commonwealth, 1547–1640: Essays in politics and society presented to Joel Hurstﬁeld (Leicester, 1979), 189–204. ⁸⁵ W. J. Jones, ‘The exchequer of Chester in the last years of Elizabeth I’, in Slavin (ed.), Tudor men and institutions, 123–70. ⁸⁶ Ibid., 135. P. Williams, The council in the marches of Wales under Elizabeth I (Cardiff, 1958), 198. Wunderli, London church courts, 105–6. ⁸⁷ Guy, ‘Equitable jurisdictions’, 84.

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trespass, involving the deliberate taking away of goods, which was quite distinct from newer actions of trespass on the case.⁸⁸ In the same way, the concept of withholding evidence or goods was used by the almoner and others to justify actions before Chancery in cases effectively outside the remit of the common law.⁸⁹ Chancery had advantages for litigants in remedying ‘an immense and scattered range of particularised injustices produced by the common law’.⁹⁰ Like Requests, it routinely appointed legal ofﬁcers or gentry to mediate and arbitrate between parties: to ‘hear and end according to equity and good conscience’.⁹¹ Lord Chancellor Ellesmere described Chancery as ‘the refuge of the poor and afﬂicted . . . the altar and sanctuary of such as against the might of rich men and the countenance of great men, cannot maintain the goodness of their cause, and the truth of their title’.⁹² Elsewhere Ellesmere afﬁrmed: ‘The ofﬁce of Chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs and oppressions, of what nature soever they be, and to soften and modify the extremity of the law’.⁹³ Equity acted in personam and was grounded in individual circumstances, even if based on guiding principles like ‘reason and conscience’ that allowed the adaptation of general rules to particular cases.⁹⁴ These were ideas and practices of conscience that came as much from ancient philosophy and pastoral manuals as from canon- and civil-law texts.⁹⁵ As Christopher St German held (following Aristotle in the Nichomachean Ethics 5.10), equity’s wider connotations of conciliation, moderation, and fairness meant it was a fundamental practical component of all law.⁹⁶ John Guy calls it ‘an objectivized gauge of ethical evaluation’.⁹⁷ ⁸⁸ J. A. Guy, The cardinal’s court: The impact of Thomas Wolsey in Star Chamber (Totowa, NJ, 1977), 14–18. D. G. Greene, ‘The court of the Marshalsea in late Tudor and Stuart England’, AJLH 20 (1976), 268. For an example from 1705 of simple trespass being counselled as a way to secure a suicide’s goods see CRO D/LEC/CRI/14/1. ⁸⁹ J. A. Guy, ‘Law, equity and conscience in Henrician juristic thought’, in A. Fox and J. A. Guy (eds), Reassessing the Henrician age: Humanism, politics and reform, 1500–1550 (Oxford, 1986), 187–90. ⁹⁰ J. P. Dawson, A history of lay judges (Cambridge, Mass., 1960), 169. Walker, ‘Order and law’, 108. ⁹¹ Dawson, Lay judges, 163–70; quotation at p. 165. Jones, Chancery, 269–80. ⁹² Quoted in A. H. Marsh, History of the court of Chancery and of the rise and development of the doctrines of equity (Toronto, 1890), 48. ⁹³ Ibid., 101–2. ⁹⁴ L. M. Hill (ed.), The ancient state, authoritie, and proceedings of the Court of Requests by Sir Julius Caesar (Cambridge, 1975), xli. P. Vinogradoff, ‘Reason and conscience in sixteenth century jurisprudence’, Law Quarterly Review 24 (1908), 378–9. ⁹⁵ R. A. Marchant, The church under the law: Justice, administration and discipline in the diocese of York, 1540–1640 (Cambridge, 1969), 2–4. T. S. Haskett, ‘The medieval English court of Chancery’, LHR 14 (1996), 256–76. ⁹⁶ N. Doe, Fundamental authority in late medieval English law (Cambridge, 1990), 101–6. Brooks, Law, politics and society, 313. ⁹⁷ Guy, ‘Law, equity and conscience’, 181. D. R. Coquillette, The civilian writers of Doctors’ Commons, London: Three centuries of juristic innovation in comparative, commercial and international law (Berlin, 1988), 48–57. G. Behrens, ‘An early Tudor debate on the relation between law and equity’, JLH 19 (1998), 143–61, sees St German’s logic leading another way.

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It is therefore without irony that the Lord Chancellor, who presided over Star Chamber, was known as ‘the keeper of the king’s conscience’.⁹⁸ ‘God’s love’ was more than a pious platitude and ‘conscience’ had legal substance. The ﬁnal chapter of Thomas Wentworth’s ‘Ofﬁce of executor’ is entitled ‘Consideracions in conscience touching debts and legacies, and the preferring or respect of persons’.⁹⁹ It deals with the compassionate distribution of wealth rather than strict adherence to proprietary right. Wentworth counsels equality and fairness of hand, but where the status or ranking of the debt was otherwise equal, he allowed executors to make a value judgement in deciding preferential distributions to certain classes of claimant like widows: ‘a just motive to disproporcion payments’.¹⁰⁰ ‘Where charitie ﬁndes, or may ﬁnde, place or neerenes to place of giving, it may ﬁnde greater motives of preserving from losse’.¹⁰¹ By the same token, debts to such people might be written off. The countess of Northumberland appointed a gentleman to draw up accounts with the bailiff of her late husband’s manor of Wresill (Yorks.), paying her £84 net. There is mention of ‘a parcell of old debts . . . most of them were due by widowes and other pore persons’, implying they would never be collected.¹⁰² The almoner offered an equitable solution ‘on the grounds of conscience’ to the problems left by suicidal death. In the ﬁfteenth century most senior English churchmen had been turned into purely spiritual authorities, but the crown returned to one ecclesiastic as ﬁgurehead, conﬁscations that it had wrested from most bishops as lords during the Middle Ages.¹⁰³ The almoner’s grant continued the principle that a suicide’s goods might properly be directed to pious causes, realigning an abiding coalition between church and crown. It allowed him to pursue ideals that blended traditional Christianity with both the revived classical ideas of civic humanism characteristic of the Renaissance and the changed religious emphases of the Reformation. This made his an early modern solution rather than a medieval survival, though the continuities are plain. The transformation turned the almoner into an ally in promoting a united Christian monarchy, adding charisma and tradition (and a measure of bureaucracy) to that already possessed by the crown. Weber described charismatic authority as ‘a certain quality of an individual personality, by virtue of which he is set apart from ordinary men and treated ⁹⁸ D. Loades, Tudor government: Structures of authority in the sixteenth century (Oxford, 1997), 20. Fleta II.II.23 (ﬁrst printed in 1647), describes the almoner in a similar way, acting to remind the king of his duty to give alms and guiding their destination. G. W. Thomas, ‘James I, equity and lord keeper John Williams’, EHR 91 (1976), 506–528. ⁹⁹ HL Ellesmere 7926, pp. 305–6. This is a pre-1630 bound manuscript of T. Wentworth, The ofﬁce and dutie of executors (London, 1641). ¹⁰⁰ HL Ellesmere 7926, p. 306. ¹⁰¹ Ibid., 305. The church courts followed the same principles when exercising discretion. Bower, ‘Introduction to probate accounts’, xliii–v. ¹⁰² NA E 134/33Eliz/Hil11. The earl committed suicide in 1585. ¹⁰³ Murray, Suicide, vol. 2, 82–3. S. Painter, Studies in the history of the English feudal barony (Baltimore, 1943), 116.

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as endowed with supernatural, superhuman, or at least speciﬁcally exceptional powers or qualities. These as such are not accessible to the ordinary person, but are regarded as of divine origin or as exemplary, and on the basis of them the individual concerned is treated as a leader.’¹⁰⁴ Using that authority, the almoner invited or urged the ruled into an informed and consensual (if unequal) interaction with rulers and their institutions, creating a praxis that helped both to shape experience and to create social cohesion. Most active when trust between neighbours was wanting, he rebuilt a commodity vital to economic and social life.¹⁰⁵ ‘Neighbour’ meant not simply those who lived close by or were familiar, but all whose lives were touched: ‘Thou shalt love thy neighbour as thyself ’.¹⁰⁶ Neighbourly or brotherly love came from God’s grace, it was manifested through piety and charity, and it constituted a Christian community.¹⁰⁷ The almoner brought love, charity, or Christian amity into situations of enmity, exemplifying the historic and continuing connection between arrangements for resolving conﬂict and the ‘sites, rites and persons of the church’.¹⁰⁸ After all, the church as a seigneurial institution had a share in the principle of conﬁscation based on ethical considerations and the ‘high moral ground remained the Church’s natural inheritance’ even after the Reformation.¹⁰⁹ The almoner’s varied means of bringing about settlement centred not on taking, but on giving. This in turn was based on the principle in Romans 13:10: ‘Love worketh no ill to his neighbour; therefore love is the fulﬁlling of the law.’ John Bossy renders this: ‘Love is not only better than law, it is the way to salvation, especially if it involves some surrender of right’.¹¹⁰ By giving up his right to all, or part of, forfeiture the almoner proffered an example for all good Christians. He intervened on occasions where survivors tried to organize do-it-yourself ways of dealing with the aftermath of a suicide, either because they did not understand what forfeiture meant in practice or, more likely, because they were not prepared to accept the outcome of composition and the responsibilities it entailed. Indeed it is likely that almoner interventions originated with creditors who felt excluded by an informal settlement that involved quick action and the cutting of corners. The records of Star Chamber and King’s Bench create an impression of almoner-generated suits which understate the signiﬁcance of local initiation. Impromptu compounding for debts owed to the deceased, or ¹⁰⁴ Weber, Theory of social and economic organization, 329. ¹⁰⁵ Muldrew, Economy of obligation, 182. K. Wrightson, ‘The ‘‘decline of neighbourliness’’ revisited’, in D. Woolf and N. L. Jones (eds), Local identities in late medieval and early modern England (London, 2007), 19–49. ¹⁰⁶ Matthew 19:19. ¹⁰⁷ L. P. Wandel, ‘Brothers and neighbors: The language of community in Zwingli’s preaching’, Zwingliana 17 (1988), 369–70. ¹⁰⁸ J. Bossy, Peace in the post-Reformation (Cambridge, 1998), 2. ¹⁰⁹ Murray, Suicide, vol. 2, 81–2. Bossy, Peace, 96–100. ¹¹⁰ J. Bossy, ‘Postscript’, in Bossy (ed.), Disputes and settlements, 289.

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re-granting bonds on new securities, took those assets out of the pool available to pay off creditors and thus defrauded them of settlement. The almoner’s intervention brought back into the process of clearing debt those left out of such informal accommodations, which involved both gratuitous alienations and the preferential treatment of some creditors over others. The almoner and those who informed him acted not against principled defenders of family and locality, but against self-interested people whose vision of community was narrow, rather than broad. His role was to deal with dishonest debtors or perjurers and, by offering a remedy for creditors, he promoted the cause of the honest man or woman. He created familiarity, candour, and trust in situations tainted by the reality, or prospect of, enmity, suspicion, and deceit. The almoner also helped to order the chaos caused by competing lordship. Some interventions by local lords resulted in a destructive free-for-all where those seeking to assert jurisdiction or authority in their locality used control of goods as a tool.¹¹¹ The almoner could assist when there were too many interested parties trying to direct the distribution, for it was not unusual for people to have more than one patron to suit the many different areas of life that needed a helping hand and a persuasive voice.¹¹² One was in executing a testament.¹¹³ People routinely used several patrons to secure what they wanted, and this promiscuous deployment of interest could generate tensions between patrons as well as polarizing alignments among claimants. Social and economic relationships could be ﬂuid, associations shifting, and patronage plural. The almoner was one highly placed lord who helped to shape and stabilize the ‘negotiated community’ of early modern England. Community had constantly to be created and re-created. Chris Dyer writes of the late medieval period: ‘The strength of the village perhaps lay not in its organic harmony, but in its success as a coercive organization in containing the quarrels in its midst’.¹¹⁴ But that coerced cohesion was not always achieved, and the almoner’s intervention was the result of a failure of local mechanisms and solidarities, not a sign of their strength, for those who tried to deceive or oppose him were as likely to be bad neighbours as good. The almoner dealt with denial, but of the wide-ranging responsibilities attendant on a death rather than of the narrow fact of suicide. He could aid or redirect executors in their thankless (and sometimes poorly performed) task of consoling the bereaved, resolving family feuds, chasing debtors, and accommodating ¹¹¹ Stevenson, ‘Social and economic contributions’, 235. Murray, Suicide, vol. 2, 60. ¹¹² Peck, Court patronage, 22–3, 40, 47–74. K. B. McFarlane, England in the ﬁfteenth century (London, 1981), 30. Horrox, ‘Service’, 70–3. S. Walker, ‘Lordship and lawlessness in the palatinate of Lancaster, 1370–1400’, in M. Braddick (ed.), Political culture in later medieval England: Essays by Simon Walker (Manchester, 2006), 17–38. J. Daybell, Women letter-writers in Tudor England (Oxford, 2006), 26. ¹¹³ Dyer, Age of transition, 123. ¹¹⁴ C. Dyer, ‘The English medieval village community and its decline’, JBS 33 (1994), 421.

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creditors.¹¹⁵ Involvement was also necessitated in part by competing or biased lordship, rather than by the power of family and community, for contests over prestige and inﬂuence created tensions in local society that could be damaging to both good government and social cohesion.¹¹⁶ What the almoner brought was the authority of a major church ﬁgure and the detachment of distance. And he acted to reinforce the overarching directive ideal of good lordship as much as he did to enforce his own particular vision of Christian charity. In 1.10 the theory of legal and social evolution proposed by Henry Maine was suggested as a guide to changing practices north of the Border. The rapid secularization of means of dealing with Scottish suicide, coupled with the swift and early decline of discretionary lordship as an organizing force, seems to justify this simplicity. This may seem curious, as Maine knew England (and India) and apparently little else. Yet it is the Russian e´migr´e Paul Vinogradoff’s more broadly historical and comparative reﬁnement of Maine in Outlines of historical jurisprudence (1920–2) that best approaches the English trajectory. Vinogradoff proposed six stages of legal evolution, of which the fourth and the ﬁfth are the most relevant here. Medieval law, which necessarily combined the universalism of canon law with the narrow issues of ﬁdelity within feudal law, gave way to individualistic jurisprudence, which focused on the ‘coordination of individual wills’.¹¹⁷ For Vinogradoff: ‘Feudal law has too narrow and Canon too wide a basis: one starts from the estate and the other from mankind’.¹¹⁸ Forfeiture combined the two parts, especially when the almoner was involved, for it blended on the one hand compensation to a lord for a breach of ﬁdelity (the most basic meaning of the word ‘felony’) and the exercise of responsibilities to dependants, with on the other the broader obligations to act ‘for God’s love’: ‘the two inﬂuences meet in conﬂict and in compromise’.¹¹⁹ In England royal franchising provided the bridge. The feudal rights and Christian obligations of the crown were overseen by a clerical almoner who intertwined secular and ecclesiastical agencies, feudal law and canon law. 2 . 3 T H E ROY A L A L M O N E R A S A N E N F O RC E R OF CHRISTIAN CHARITY While presented as the deus ex machina of suicide verdicts, the charitable role and political functions of early modern royal almoners remain obscure—even to those ¹¹⁵ J. Kermode, Medieval merchants: York, Beverley and Hull in the later Middle Ages (Cambridge, 1998), 105–10, 231–5. E. Duffy, The stripping of the altars: Traditional religion in England, c.1400–c.1580 (London, 1992), 350–1. ¹¹⁶ J. G. Jones, Wales and the Tudor state: Government, religious change and the social order, 1534–1603 (Cardiff, 1989), 60–4, 194–6, characterizes many Welsh Star Chamber suits as the results of social and political rivalry. ¹¹⁷ P. Vinogradoff, Outlines of historical jurisprudence 2 vols. (London, 1920–2), vol. 1, 157–60 (quotation at p. 157). Stein, Legal evolution, 115–21. ¹¹⁸ Vinogradoff, Historical jurisprudence, vol. 1, 159. ¹¹⁹ Ibid., 159.

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doing detailed work on the lives of bishops who were almoners.¹²⁰ ‘Technically, ‘almoner’ refers to one who solicits alms, collects, and distributes them.’¹²¹ Medieval monasteries had almoners and so too did noble, and some larger gentle, households; early modern bishops’ households themselves had almoners. Most were clerics charged with ensuring the household fulﬁlled expectations of charity and piety, even if some look like chamberlains or accountants because they were involved in getting and spending money; those belonging to the sixteenth-century London charitable hospitals look like wardens.¹²² The royal almoner, variously known as the Great Almoner or (Lord) High Almoner, was such a ﬁgure writ large. The ﬁrst recorded grant of deodands to an almoner ‘for maintenance of the King’s Alms’ comes in 1421, and in 1476 the title of High Almoner was ﬁrst bestowed.¹²³ It was a job with attractions (notably proximity to the monarch) and perquisites (though very few formal emoluments), but it was far from a sinecure.¹²⁴ The highest court ofﬁce automatically available to a cleric and a singular mark of favour, the job seems normally to have served as a stepping stone to something better (most famously in the case of Thomas Wolsey, promoted to the post in 1509). Almoners were at best mid-ranking clerics at Court in the later years of Henry VIII’s reign and, under Elizabeth, usually bishops of lesser sees. By this period they acted as principal preachers at Court and trustees for the queen’s charities.¹²⁵ They were charged with giving important sermons to, and on behalf of, the monarch and can thus be seen as the crown’s religious, moral, and ecclesiastical face: Lancelot Andrewes was probably the most distinguished ¹²⁰ I am grateful to Joel Berlatsky (working on Nicholas Heath) and Peter McCullough (Lancelot Andrewes) for their help on this topic. P. McCullough, Lancelot Andrewes: Selected sermons and lectures (Oxford, 2005). P. A. Welsby, Lancelot Andrewes, 1555–1626 (London, 1958). T. A. Owen, Lancelot Andrewes (Boston, 1981). P. Lake, ‘Lancelot Andrewes, John Buckeridge, and avant-garde conformity at the court of James I’, in L. L. Peck (ed.), The mental world of the Jacobean court (Cambridge, 1991), 113–33. C. Loar, ‘Conﬂict and the courts: Common law, Star Chamber, coroners’ inquests and the king’s almoner in early modern England’, Proceedings of the South Carolina Historical Association (2005), 47–58. ¹²¹ K. Mertes, The English noble household, 1250–1600: Good governance and politic rule (Oxford, 1988), 50. C. M. Woolgar, The great household in late medieval England (London, 1999), 9, 18, 44, 87, 154, 157, 161–3, 176. ¹²² I. W. Archer, The pursuit of stability: Social relations in Elizabethan London (Cambridge, 1991), 155, 238. E. Searle, Lordship and community: Battle Abbey and its banlieu, 1066–1538 (Toronto, 1974), 147, 250–1, 267, 271, 343. Woolgar, Great household , 157. Jacob, The lawdictionary, ‘almoner’. W. J. Thoms, The book of the court (London, 1838), 310–15. D. Baldwin, The chapel royal, ancient and modern (London, 1990), 374. ¹²³ Ibid., 376. ¹²⁴ Ibid., 375–6. B. Robinson, Silver pennies and linen towels: The story of the royal Maundy (London, 1992), 74. D. Loades, The Tudor Court (Oxford, 2003), 28. L. E. Tanner, ‘Lord high almoners and sub-almoners, 1100–1957’, The Journal of the British Archaeological Association 3rd series 20–1 (1957–8), 72–83. ¹²⁵ P. E. McCullough, Sermons at Court: Politics and religion in Elizabethan and Jacobean preaching (Cambridge, 1998), 69–70, 150. A. A. Chibi, Henry VIII’s bishops: Diplomats, administrators, scholars and shepherds (Cambridge, 2003).

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such court preacher. Finally, benevolence was central to the Tudor and Stuart almoner’s mission, both by direct cash or food doles, and by endowing charitable projects of social value such as schools.¹²⁶ The Tudor almoner’s role built on an existing tradition of clerical involvement in many areas of life. Indeed the original justiﬁcation for canonical involvement in the law of testamentary succession was to ensure the enforcement of charitable bequests and, more broadly, to protect conscience, conﬁdence, and moral object.¹²⁷ ‘Charity’ here included the discharge of both spiritual and material debts for medieval testators were anxious to have their debts settled.¹²⁸ But charity as benevolence also became more important from the 1530s, as religious change disrupted both giving and disbursing, and again in the Elizabethan period when extensive structural poverty became evident.¹²⁹ Charity remained central to the efﬁcacy of religious observances, but the Protestant agenda to educate and reform individuals was based around a slightly different understanding of that ideal—intercession for the soul of the deceased no longer ﬁgured—which in turn had a powerful component of social and moral management. The equation with benevolence originated in the seventeenth century, and this became the more widely accepted, if specialized, meaning of ‘charity’ in the eighteenth century. Late medieval charity meant, not simply acts of benevolence to the poor, but a state of Christian harmony (amity and peace) contributed to by many deeds, of which compassionate giving of alms was just one. Throughout the early modern period the connotations of public welfare were ‘almost boundless’.¹³⁰ In 1579 Gloucester city fathers asked the almoner for money from the forfeiture of a felo de se to help build a House of Correction, assuring him it would be ‘the begynninge of a very godly and charitable acte’.¹³¹ Charity was without social limit: in one Exchequer suit of 1682 the almoner described a titled gentleman as ‘really an object of charity’.¹³² Acts of charity had a religious rationale, and the concept of Christian charity was widely conceived to include neighbourly love as well as a loving afﬁnity between God and man.¹³³ The idea of justice, meanwhile, was the social one of Aquinas (following Aristotle) ¹²⁶ F. Heal, Of prelates and princes: A study of the economic and social position of the Tudor episcopate (Cambridge, 1980), 278. ¹²⁷ Helmholz, Canon law, 417. Fleming, Family and household, 85. Vinogradoff, ‘Reason and conscience’, 373–84. ¹²⁸ Helmholz, ‘Bankruptcy and probate’, 416–17. Duffy, Stripping of the altars, 355–6. ¹²⁹ P. A. Fideler, ‘Societas, civitas and early Elizabethan poverty relief’, in C. Carlton (ed.), State, sovereigns & society in early modern England (Stroud, 1998), 62. N. S. Rushton, ‘Monastic charitable provision in Tudor England: Quantifying and qualifying poor relief in the early sixteenth century’, C&C 16 (2001), 9–44. ¹³⁰ P. Slack, From reformation to improvement: Public welfare in early modern England (Oxford, 1999), 1. ¹³¹ Gloucestershire RO, GBR/B2/1, p. 79. ¹³² Kingsmill v. Bishop of Rochester (1682). Bryson, Equity cases in Exchequer, case 158. ¹³³ J. A. Sharpe, ‘ ‘‘Such disagreement betwyx neighbours’’: Litigation and human relations in early modern England’, in Bossy (ed.), Disputes and settlements, 178–81.

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rather than the divine one of Augustine: ‘justice is the habit whereby a person with a lasting and constant will renders to each his due’.¹³⁴ As agent of the mercies that made up the all-embracing rule of God, the almoner was obliged to take account of great and small, for divine rule covered not only the cosmos, but also the small and seemingly insigniﬁcant.¹³⁵ He offered a compassionate resolution to disputes that embodied justice, charity, and dignity in a social sense and penitence, forgiveness, and grace in a religious one.¹³⁶ Almoner and monarch alike were the servants of God’s purpose in caring for the life of the one body politic.¹³⁷ One way was by conciliation and arbitration, another by formal judicial means, of which the most important for the royal almoner was presiding over the Early Tudor Court of Requests. This was a civilian-dominated conciliar tribunal with equitable jurisdiction which existed to hear ‘poor men’s causes’ and which dealt with private matters, where Star Chamber handled public ones; some almoners sat in both.¹³⁸ Though almoners operated in secular, legal ways that facilitated the enforcement of obligations, their justiﬁcation and the means adopted were more concerned with moral responsibility and its breach: sin.¹³⁹ Indeed, Andrew Chibi has recently shown that the worldiness of Henrician bishops should not be exaggerated simply because they played a more obvious role in temporal government than was later to become the case. They were ‘spiritually strong and bureaucratically ﬁt’, their abilities as administrators hardly compromising their piety or their role as promoters of cooperation and reconciliation.¹⁴⁰ Star Chamber suits necessarily spoke of offences against the crown, but they also waxed lyrical about harm to the commonwealth (implying ﬁnancial and social community), and about the violation of spiritual as well as temporal obligations. Dealing in moral absolutes and uncontroversial norms, they talk routinely of the defendant taking bread from the mouths of the poor, inviting the reader or listener to condemn the evil example offered and to condone the positive consequences for order and charity, self-interest and disinterest that would arise from a successful conclusion to the ¹³⁴ T. Gilby (ed.), St Thomas Aquinas Summa Theologiae 61 vols (London, 1964–81), vol. 37, 20–1. For Augustine, ‘justice is love serving God alone’. Idem. ¹³⁵ I. M. MacKenzie, God’s order and natural law: The works of the Laudian divines (Aldershot, 2002), 73. ¹³⁶ E. Duffy, ‘The godly and the multitude in Stuart England’, The Seventeenth Century 1 (1986), 48–9. Even franchise jurisdictions were a sort of divine delegation. P. D. Halliday, Dismembering the body politic: Partisan politics in England’s towns, 1650–1730 (Cambridge, 1998), 33. ¹³⁷ Ibid., 59–66. ¹³⁸ Loades, Tudor government, 20, 78–9. Gunn, Early Tudor government, 81–9. Hill, Court of Requests, xl–xliii. C. M. Gray, ‘The boundaries of equitable function’, AJLH 20 (1976), 198–202. M. L. Bush, ‘Protector Somerset and Requests’, Historical Journal 17 (1974), 451–64. I. S. Leadam, Select cases in the Court of Requests, A.D. 1497–1569 (London, 1898), x–xii, lv. Potter, Equity, 23, ﬁnds the division less clear. Barnes, ‘Star chamber and criminal law’, 320. Harding, A social history of English law, 155. ¹³⁹ T. Gorringe, God’s just vengeance: Crime, violence and the rhetoric of salvation (Cambridge, 1996), 18. ¹⁴⁰ Chibi, Henry VIII’s bishops, 257.

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suit. Almoner suits have the tone of ecclesiastical actions as much as criminal prosecutions.¹⁴¹ The post-Reformation almoner acted to express a conservative emphasis on good works, ceremonies, and charity.¹⁴² Zwingli had an especially robust notion of Christian brotherhood, arguing that self-interest—the failure to pay communal debts, broadly deﬁned—denied one’s membership of community and manifested ingratitude to God as well as man.¹⁴³ One aspect of charity was to enforce such obligations and another was to punish sin for ‘it is aswell the ofﬁce of charitie to rebuke, punish, and correct them that bee evill, as it is to cherish and reward them that bee good and harmlesse’.¹⁴⁴ If this role was partly traditional, it was also modern, for almoner giving (like taking) was discriminating, aided by Edwardian legislation that clariﬁed what were legitimate charitable uses.¹⁴⁵ The almoner also moved with the times by doing what the late medieval church courts were failing to do: offering potentially compelling sanctions. He might still be at heart a just, forgiving, merciful churchman, but he could also selectively wield potent authority that catered to what sixteenth-century litigators wanted.¹⁴⁶ He blended the traditional enforcement of Christian community and reconciliation through moral authority with the new and more formal emphasis on waging law, with its implications of confrontation and lordly enforcement.¹⁴⁷ Tudor almoners’ who went to law did so to promote their own charitable imperatives. However, they also participated in a general rise in civil litigation in the sixteenth and early seventeenth century.¹⁴⁸ The upsurge was itself largely fuelled by suits that sought to enforce obligations, and throughout the early modern period ‘the vast majority of actions concerned some form of debtorcreditor relationship’.¹⁴⁹ At one level a debt is merely the right to demand money or the obligation to deliver it, but the ubiquity and complexity of debt and credit relations belies this simplicity.¹⁵⁰ The economy and society of late medieval and early modern England was ultimately founded on transactions, considerations, and promises, with most litigation concerning some sort of breach of promise about money. Many early modern lawsuits were ‘nothing more than routine ¹⁴¹ Helmholz, ‘Assumpsit and ﬁdei laesio’, 422–3. For example, NA STAC 2/1/102. ¹⁴² R. Rex, ‘The crisis of obedience: God’s word and Henry’s Reformation’, Historical Journal 39 (1996), 863–894. ¹⁴³ Wandel, ‘Brothers and neighbors’, 361–74. ¹⁴⁴ Certaine sermons or homilies appointed to be read in churches (1563), quoted in A. Walsham, Charitable hatred: Tolerance and intolerance in England, 1500–1700 (Manchester, 2006), v. ¹⁴⁵ F. Heal, Hospitality in early modern England (Oxford, 1990), 122–40. I. W. Archer, ‘The charity of early modern Londoners’, TRHS 12 (2002), 232–3. G. Jones, History of the law of charity, 1532–1827 (Cambridge, 1969), 14–15. ¹⁴⁶ Wunderli, London church courts, 138–9. ¹⁴⁷ Wrightson, ‘Decline of neighbourliness’, 37, 39. ¹⁴⁸ C. Brooks, Pettyfoggers and vipers of the commonwealth: The ‘lower branch’ of the legal profession in early modern England (Cambridge, 1986), 93–111. ¹⁴⁹ C. Brooks, Lawyers, litigation and English society since 1450 (London, 1998), 87. ¹⁵⁰ Muldrew, Economy of obligation.

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anticipatory or preliminary stages of debt collection’, which were never expected to get as far as a courtroom.¹⁵¹ What the almoner did with suicides was to establish a structure for collection and, occasionally, enforce or facilitate the implementation of his framework for restitution at law. Rather than an initiator of litigation for ﬁscal ends, he responded both to an increasing desire and necessity to use the law, and a growing need for the power of lordship in settling disputes when people were ‘out of charity’. Almoners (or other franchise holders) offered ofﬁcially sanctioned justice, exercising ‘a royal privilege in the hands of a common person’.¹⁵² Using the weight of lordship to help legal process, they converted, in Michael Postan’s words, ‘an obligation into a full legal recognisance’, a right into a remedy.¹⁵³ That remedy was based primarily on equity, which provided for those like the ‘careless debtor’ who had failed to avail themselves of their legal rights (‘deus est procurator fatuorum’); protected transactions based on conﬁdence; and enforced morally binding promises, even those without due form of law.¹⁵⁴ By making the act of charity a spiritual concern for both donor and recipient, the almoner performed a reﬂexive act designed to rehabilitate as much as to punish, drawing a line under the suicide and therefore helping to restore social relations by recreating transparency, reafﬁrming obligations, reordering affairs, and (up to a point) repairing reputation. He did so publicly and ofﬁcially invited members of communities to reconcile and renew. His actions also prevented the ‘credit’ (reputation and means) of survivors being permanently harmed by a bad death. Acting pro salute animae (broadly conceived), almoners tried to make something positive from the act of suicide, and so exempliﬁed the centrality of charity-as-beneﬁcence to the corporal works of mercy.¹⁵⁵ Investing social relations with a theological force, the almoner demonstrated the wide range of spiritual and temporal concerns that the Anglican Jeremy Taylor classed as Holy Living and the Puritan Richard Baxter later listed in his Christian Directory.¹⁵⁶ These included the seven spiritual works of mercy: teaching the ignorant, helping the needy, chastising the sinful, comforting those who grieve, forgiving enemies, suffering pains, and praying. In terms of broad function it would not be stretching the imagination too much to see his actions as a continuation of medieval indulgences issued to indicate some level of remission for sin, with the beneﬁciary not the dead person’s soul, but the reputation and well-being ¹⁵¹ W. R. Prest, ‘The experience of litigation in eighteenth-century England’, in D. Lemmings (ed.), The British and their laws in the eighteenth century (Woodbridge, 2005), 143. ¹⁵² Bankton, Institute, II.III.65. ¹⁵³ M. M. Postan, Medieval trade and ﬁnance (Cambridge, 1973), 35. ¹⁵⁴ Vinogradoff, ‘Reason and conscience’, 379. Brooks, Law, politics and society, 313. ¹⁵⁵ Duffy, Stripping of the altars, 358. Matthew 25: 31–9, lists six such works, to which burial of the dead was added in the third century. Baker, Cases . . . of King Henry VIII , 324, 361. ¹⁵⁶ J. Taylor, The rule and exercises of holy living, etc (London, 1650). R. Baxter, A Christian directory: or, a summ of practical theologie, and cases of conscience . . . (London, 1673).

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of his or her family.¹⁵⁷ Paying a composition to have goods returned was in religious terms an act of atonement or humiliation; in secular ones it was an act of obedience. The almoner recast past sinful or criminal events in terms of timeless and universal notions of harmony, mercy, and charity, reconciling sinners with God and man and therefore bringing them back ‘into charity’. By fuelling or revitalizing credit networks, his interventions also helped to further habits of reconciliation and dispositions of trust that Muldrew has termed an ‘economy of obligation’.¹⁵⁸ The almoner’s function (and that of any franchise holder in the eyes of the crown) was primarily to ensure the orderly and equitable handling of a suicide’s affairs when the almoner pro Rege and the immediate family were only two out of a universe of creditors. The almoner was not a gloriﬁed tax collector, proﬁting from the misfortunes of families, but an agent in the implementation of what early modern people understood as good lordship, and modern observers term social engineering. His judicial role, as with all ecclesiastical justice, was remedy rather than retribution. He exempliﬁes the aspiration that William Lambarde had of a magistrate to be as much ‘a Compounder as a Commissioner of the Peace’.¹⁵⁹ Or, more suitable to his position, he can be seen as a Christian peacemaker, using hierarchy to enforce community.¹⁶⁰ A bishop’s role as ‘mediator and reconciler of disputes between members of his congregation’ emerged in late antiquity and it continued to be his main judicial function in the Middle Ages.¹⁶¹ Lord Henry Howard supported it against the Puritan line in A defense of the ecclesiastical regimente in Englande (1574): ‘As for dealing in civil causes, so far as they are annexed and coherent to a spiritual function, maintaining peace and keeping quiet in the country, I think it very proﬁtable and requisite for every state’.¹⁶² By persuasion, negotiation, mediation, and adjudication, the almoner helped to re-create community against the forces that constantly threatened to fragment it.¹⁶³ He aimed to minimize damaging differences of opinion and resolve disputes in pursuit of ‘a tolerable social existence and an underlying spiritual ideal’.¹⁶⁴ ‘And every one that was in distress, and every one ¹⁵⁷ R. N. Swanson, ‘Letters of confraternity and indulgence in late medieval England’, Archives 25 (2000), 40–57. C. Wordsworth, ‘On some pardons or indulgences preserved in Yorkshire, 1412–1527’, Yorkshire Archaeological Journal 16 (1902), 378–81, 399–410, 415–23. S. Brigden, London and the reformation (Oxford, 1989), 12–43. ¹⁵⁸ Muldrew, Economy of obligation, 121–85. ¹⁵⁹ W. Lambarde, Eirenarcha: or, of the ofﬁce of the justices of the peace (London, 1594), 10. Shoemaker, Prosecution and punishment, 91–2. ¹⁶⁰ Bossy, Peace, 73–96. C. Marsh, ‘ ‘‘Common prayer’’ in England, 1560–1640: The view from the pew’, P&P 171 (2001), 66–94. ¹⁶¹ J. D. Harries, Law and empire in late antiquity (Cambridge, 1999), 192. J. A. Brundage, Medieval canon law (London: Longman, 1995), 12. ¹⁶² Quoted in Bossy, Peace, 90. ¹⁶³ C. Muldrew, ‘The culture of reconciliation: Community and the settlement of economic disputes in early modern England’, Historical Journal 39 (1994), 915–42. ¹⁶⁴ Marsh, ‘Common prayer’, 72.

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that was in debt, and every one that was discontented, gathered themselves unto him.’¹⁶⁵ The almoner was an agent, not of exploitation, but of reconciliation. To modern eyes he sometimes looks like a bully as he reasoned, entreated, cajoled, and sometimes threatened, but he acted as an ecclesiastic belonging to a church that regarded compulsion as a sacred duty.¹⁶⁶ He relied less on naked power than on authority, embodying the fundamental relationship between religion and the law in enabling and sustaining community.¹⁶⁷ Following Aristotle and Aquinas, Lancelot Andrewes expressed the point very well when he emphasized the duty of Christians to others in expounding the sixth commandment: ‘Every man that liveth in a Society or Common-wealth is part thereof, and so not sui juris, at his own dispose, but societatis vel reipublicae, of the Society of Common-wealth where he lives, and therefore cannot injure or kill himself without detriment to the whole’.¹⁶⁸ The almoner was an agent of charity and good lordship, constrained by competing grants of privilege; practical difﬁculties of enforcing his rights in a polity based above all on willing cooperation; legal prescriptions and precedents; and unwritten rules that governed expectations between patron and client, lord and man, ruler and ruled, churchman and Christian.¹⁶⁹

2 . 4 T H RO U G H A G L A S S D A R K LY: T H E F I N A N C I A L S I D E OF FORFEITURE It is a mistake to believe that the almoner channelled money to his monarch, for the crown’s aim was not to get money from him, but to spend it through him—or ideally to make him ﬁscally neutral, operating ‘without increasing charge or diminishing the certain revenue’.¹⁷⁰ Legal texts recognized he was a conduit. Michael Dalton’s Countrey justice was clear that, when it came to deodands, ‘the Almner hath no interest, as it seemeth in such goods, but hath only the disposition of the Kings almes, durante bene placito, so that the King may grant them to any other’.¹⁷¹ Forfeitures were explicitly designed to be distributed for the beneﬁt of the poor, whereas in Scotland they were a branch ¹⁶⁵ 1 Samuel 22:2. ¹⁶⁶ H. Potter, An introduction to the history of equity and its courts (London, 1931), 84. ¹⁶⁷ Gorringe, God’s just vengeance, 13. ¹⁶⁸ L. Andrewes, The pattern of catechistical doctrine at large (London, 1675), 405. ¹⁶⁹ Loades, Tudor government, 7–9. ¹⁷⁰ C. McNeill (ed.), The Tanner letters: Original documents and notices of Irish affairs in the sixteenth & seventeenth centuries (Dublin, 1943), 1. APC new series III (1550–2), 127. ¹⁷¹ Dalton, Countrey justice, 246. Alton Woods case, 1595–1600: 1 Co. Rep. 26b; Dyer 107, 108 [76 ER 64]. Bishop of Chichester v. Webb: 2 Dyer 107b [73 ER 238]. ‘Deodand’ meant any forfeiture dedicated to good causes. G. Poulson, Beverlac; or, the antiquities and history of the town of Beverley . . . (London, 1829), 11, 14.

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of the ‘ordinary revenue’.¹⁷² Only later were English royal almoners salaried: an early eighteenth-century one received £200 per annum and the sub-almoner £97 11s 8d.¹⁷³ And only later still did deodands become once more part of the ‘casual revenues’ of the English crown instead of being ceded to the almoner.¹⁷⁴ Some income may have been creamed off by the almoner himself—as every other Tudor and Stuart ofﬁcial seems to have done. Throughout the sixteenth century the crown used various means to press bishops for money and, following Christopher Hill and R. B. Manning, Carol Loar has suggested that the reduction in their incomes may explain the increasing vigour with which Elizabethan and early Stuart almoners acted in pursuing their rights to forfeitures.¹⁷⁵ Others also see the episcopate under attack from the crown during Elizabeth’s reign, the aim being to limit the power bishops had as bishops, and to increase that which they and others derived from the crown.¹⁷⁶ Unfortunately, the ﬁnancial effect of any such drive is impossible to document, but for all the darkness that surrounds the fate of forfeitures, the imputation that bishops were pocketing revenues goes against legal interpretations of almoners’ rights and duties, the formal letter of their grants, and the charitable spirit in which they were made. An early biography of Lancelot Andrewes, written by his household treasurer, explicitly states that he accounted for his income as almoner quite separately from his personal or episcopal income (though his patent was sine computo), immediately giving out all the former in alms as well as being a noted giver to charity from his own pocket.¹⁷⁷ Indeed, it is hard to justify a picture of oppression and greed by the crown and its ofﬁcers when ‘it is impossible to know how much the almoner actually collected from the survivors of self-murderers’.¹⁷⁸ Notionally at least, there were mechanisms for accounting, but no source has anything other than occasional mentions of triﬂing sums.¹⁷⁹ Indeed the ¹⁷² Dickinson, Sheriff court book of Fife, xlvii. Craig, Jus feudale, 1.16.46. Extraordinary revenue was taxation. ¹⁷³ The present state of the British court: or an account of the civil and military establishment of England (London, 1720), 47. ¹⁷⁴ Scriven, Treatise on copyholds, 761. ¹⁷⁵ Loar, ‘Conﬂict and the courts’, 51. C. Hill, Economic problems of the church from archbishop Whitgift to the Long Parliament (Oxford, 1956). R. B. Manning, ‘The crisis of episcopal authority during the reign of Elizabeth I’, JBS 12 (1971), 7, writes of ‘the Elizabethan spoliation of episcopal revenues’. ¹⁷⁶ E. J. Bourgeois, ‘The queen, a bishop, and a peer: A clash for power in mid-Elizabethan Cambridgeshire’, Sixteenth Century Journal 26 (1995), 3–15. ¹⁷⁷ H. Isaacson, An exact narration of the life and death of . . . Lancelot Andrewes . . . (London, 1650), np. ¹⁷⁸ MacDonald and Murphy, Sleepless souls, 27. S. Hindle, The state and social change in early modern England, 1550–1640 (London, 2000), 71–2. ¹⁷⁹ H. Smith, ‘From deodand to dependency’, AJLH 11 (1967), 391. Cheshire and Chester Archives ZA/B/3/1v–4v. W. C. Richardson (ed.), The report of the royal commission of 1552 (Morgantown, West Va., 1974), 170, 224. R. W. Hoyle, ‘Introduction: Aspects of the crown’s estate, c.1558–1640’, in R. W. Hoyle (ed.), The estates of the English crown, 1558–1640 (Cambridge, 1992), 33–8.

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smallness of the branch of casualties or accidents made up by forfeitures for felony (including felons of themselves) and many other branches like wardships in central sources is striking. For example, a commission issued in 1640 resulted in only one suicide being named for Cumberland, a man called John from Bothwell, though given the political circumstances this may have been a calculated piece of tokenism.¹⁸⁰ Ancient revenues in general were never important to total crown receipts and, to take one example, the escheators’ payments to Exchequer amounted to shillings in the last few years of Elizabeth’s reign.¹⁸¹ Like all Exchequer receipts, the sums accounted may not be the total collected, because salaries and other expenses were deducted prior to reporting.¹⁸² Signiﬁcant proportions of certain categories of revenues were spent locally on alms, maintaining buildings and defences, or meeting the costs of justice, with sums received, or accounted for, at Exchequer small.¹⁸³ Nor should the record of payments and receipts necessarily be viewed as a straightforward ledger, for part of the aim of keeping them was to assess accountability; inquest ﬁndings with valuations and custodians in the King’s Bench indictment ﬁles and Controlment Rolls seem to have performed the same function.¹⁸⁴ The few ﬁgures that can be derived from almoner grants show that forfeited goods were made over for a small percentage fee like the composition charged by the Scottish Exchequer (see 2.5). The process of settling with the English royal almoner or his deputy looks uncannily like a cross between compounding for a criminal offence and a sort of non-standard probate of assets. The most obvious comparison is with medieval amercements for offences, which Bellamy describes as ‘a bargain for release struck between the king and the offender’.¹⁸⁵ For suicides, the deal had to be done with survivors, but the mechanisms were the same. Bellamy notes that the crown was usually satisﬁed with a small sum by way of composition for forfeited felons’ goods, the exact amount determined by bargaining and/or an assessment by the accused person’s peers, such as ¹⁸⁰ NA E178/6047/1, ‘Articles to be inquired of’ (Cumberland), item 4. E178/6047/3. The velum return is badly creased and worn. Cumberland may have been particularly successful at avoiding royal taxation. F. Heal and C. Holmes, The gentry in England and Wales, 1500–1700 (London, 1994), 159. ¹⁸¹ Ofﬁcers appointed to identify and collect proﬁts of forefeited lands, escheators, were probably never important earners for the crown, even in the Middle Ages. Nor was the use of the general eyre prior to c.1300 to collect forfeitures very proﬁtable and it was never adequately replaced. ‘Brodrick Report’, 111. ¹⁸² F. C. Dietz, ‘The Exchequer in Elizabeth’s reign’, Smith College Studies in History 8 (1923), 68. Hoyle, ‘Crown’s estate’, 34. ¹⁸³ Brown, Governance of late medieval England, 63. ¹⁸⁴ D. Grummitt, ‘Henry VII, chamber ﬁnance and the ‘‘new monarchy’’: Some new evidence’, Historical Research 72 (1999), 232. R. F. Hunnisett (ed.), Sussex coroners’ inquests, 1485–1558 (Lewes, 1985); Sussex coroners’ inquests, 1558–1603 (Kew, 1996); Sussex coroners’ inquests, 1603–1688 (Kew, 1998); East Sussex coroners’ records, 1688–1838 (Lewes, 2005). ¹⁸⁵ J. Bellamy, Crime and public order in England in the later Middle Ages (London, 1973), 190.

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presentment jurors. The manorial equivalent was known as an ‘affeeror’.¹⁸⁶ Bellamy further suggests that the composition was usually small, though graded according to the offence and the offender’s status and ability to pay.¹⁸⁷ Finally, the king and his ofﬁcials had ways of checking on the ‘credit’ of the applicant, just as the church courts did when imposing ﬁnes. Similarly, on the Isle of Man in the seventeenth century, it was understood that: ‘The mitigation or moderation of forfeited ﬁnes in the Ecclesiastical Courts [was] to be used at the discretion of the Ordinary weighing the ability and contrition of the party’.¹⁸⁸ Even when it is possible to see accounting for receipts (rather than just inquest valuations), forfeitures do not seem to have been any more important a source of income for other entitled lords. For example, Sheriffs might pay in to the Bishop of Durham the proﬁts from tourns and other courts, the value of goods forfeited or distrained to pay ﬁnes levied, or the goods of a hanged person, a suicide, or a runaway. However, the section for Sheriffs is usually blank in the sixteenthcentury bishopric’s ‘Books of Great Receipt’, the Sheriff being a relatively free agent.¹⁸⁹ There is a single box of surviving estreats for the General Sessions of the Peace for Co. Durham covering the years 1585–1642. The accounts include lists of those ﬁned for refusing to do jury service, for breaking recognizances, or for starting cases then not proceeding with them. Deodands, like the boat full of hay which caused a man’s death in the Tyne at Gateshead, were also due to the Bishop of Durham and seem to have been ‘dutifully collected’.¹⁹⁰ However, there is only one year (1602) when felones de se are speciﬁed separately. The names and residences of four men and three women are given and the means of their death in Latin (e.g. ‘suspendyt se’, ‘interfecit se’). No sums are mentioned. The entry concludes with a remark by John Barnes, clerk of the assizes, that ‘the coroners do not their ofﬁces’.¹⁹¹ From his (pointed) perspective this was probably true for particularly favoured franchisees like the Bishop who had the right to appoint their own coroners. Many coroners were elected for life by the freeholders (as most county ones were). They had a measure of independence, but they were removable for dereliction. From the thirteenth to the late nineteenth century, however, roughly a ﬁfth of ¹⁸⁶ F. J. C. Hearnshaw, Leet jurisdiction in England, especially as illustrated by the records of the court leet of Southampton (Southampton, 1908), 135–6. J. Tait (ed.), ‘Records of some Salford portmoots in the sixteenth century’, Chetham Society Miscellanies vol. 4 (Manchester, 1921), iv–vi. ¹⁸⁷ Bellamy, Crime and public order, 191. ¹⁸⁸ Quoted in A. Ashley, ‘The spiritual courts of the Isle of Man, especially in the seventeenth and eighteenth centuries’, EHR 72 (1957), 57. ¹⁸⁹ DUA CCB/B/28/23-25. CCB/B/29/26-33. Dalton, Ofﬁcium Vicecomitum, 474–81. Noonkester, ‘Decline of the sheriff’, 688. C. H. Hunter Blair, ‘The sheriffs of Northumberland’, Archaeologia Aeliana 20 (1942), 11–90; 21 (1943), 1–92; 22 (1944), 22–82. G. Gilbert, A treatise on the Court of Exchequer . . . (London, 1758), esp. ch. 7–10. ¹⁹⁰ C. J. Neville, ‘ ‘‘The bishop’s ministers’’: The ofﬁce of coroner in late medieval Durham’, Florilegium 18 (2001), 49. An estreat was strictly an extract of account relating to amercements and other exactions. ¹⁹¹ DUA CCB 80/220012, f. 2v.

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all coroners were franchisal.¹⁹² Sometimes termed ‘special’ rather than ‘general’ coroners, they were still crown ofﬁcers who had to strive ad facienda negotia Regis, but they had also to be a sort of lord’s steward pro voluntate sua facere.¹⁹³ Like estate stewards, who sometimes sat with county or borough coroners to protect their lord’s interests, franchisal coroners were a source of patronage and a type of political appointment, announcing the lord’s priorities and his style.¹⁹⁴ Yet Barnes’ remark and the absence from the bishopric records of almost any mentions of forfeitures suggest that recorded ofﬁcial involvement in their administration was unusual.¹⁹⁵ A rare example in the Bishop’s Halmote Court records c.1520–1 shows that Stephen, son and heir of William Grisby, committed suicide and therefore his possessions in Blackwell and Darlington were forfeited into the lord’s hands.¹⁹⁶ The proﬁts of justice in the sixteenth-century bishopric were small and court proﬁts or perquisites formed a low (and declining) proportion of manorial incomes more generally.¹⁹⁷ The abiding impression is that lords from the crown downwards did not care to proﬁt from misfortune like suicide, rather than that they could not.¹⁹⁸ Until the Stuart era the need to be politic explains why enforcement of royal policy took precedence over revenue generation in many spheres, and this is why feudal casualties and accidents were used mainly to foster royal authority in the localities.¹⁹⁹

2 . 5 T H E A L M O N E R ’ S AC C O M M O D AT I O N S : A R B I T R AT I O N , M E D I AT I O N , A N D D E L E G AT I O N I N T H E A F FA I R S O F S U I C I D E S Alerted to a problem with administering a suicide’s estate, the almoner could intervene using a court like Star Chamber, which he did infrequently (see 2.6), ¹⁹² ‘Brodrick Report’, 107–8. In 1868 the ﬁgure was 64 of 334 (19%). P. J. Fisher, ‘The politics of sudden death: The ofﬁce and role of the coroner in England and Wales, 1726–1888’ (Ph.D. thesis, University of Leicester, 2007), 221. ¹⁹³ N. Denholm-Young, Seignorial administration in England (London, 1937), 105. ¹⁹⁴ Hunnisett, Medieval coroner, 145–6. C. Kelly, ‘The noble steward and late-feudal lordship’, Huntington Library Quarterly 49 (1986), 133–48. ¹⁹⁵ There were also complaints that JPs were not doing their job in the north at this time. G. C. F. Forster, ‘The North Riding justices and their sessions, 1603–1625’, NH 10 (1975), 102–25. ¹⁹⁶ DUA DHC 1/1/1, f. 42v. N. Sunderland, Tudor Darlington 2 vols. (Durham, 1974, 1976), vol. 1, 33, dates this as c.1519, but it is towards the end of a volume covering 1519–21. ¹⁹⁷ G. T. Lapsley, The county palatine of Durham: A study in constitutional history (London, 1900), 291. C. Dyer, Lords and peasants in a changing society (Cambridge, 1980), 77–8, 174. J. Ravensdale, ‘Population changes and the transfer of customary land on a Cambridgeshire manor in the fourteenth century’, in R. M. Smith (ed.), Land, kinship and life cycle (Cambridge, 1984), 224. J. Whittle, The development of agrarian capitalism: Land and labour in Norfolk, 1440–1580 (Oxford, 2000), 28–84. Tait, ‘Portmoot records of Salford’, v. ¹⁹⁸ B. English, The great landowners of east Yorkshire, 1530–1910 (London, 1990), 155. ¹⁹⁹ Grummitt, ‘Chamber ﬁnance’, 242. Gunn, Early Tudor government, 125–8. Palmer, Selling the church, 174–5. Braddick, Nerves of state, 74–5.

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or by standing back from a case to offer an extra-curial solution backed by his considerable authority. Litigation was common, but it was widely viewed as divisive, and instead, arbitration, mediation, and adjudication were deeply embedded in English and Welsh society.²⁰⁰ Local settlement was preferred, because knowledge of the disputants and their cases was often essential to a satisfactory resolution, though when the stakes or the protagonists were high, or when the dispute was bitter, some more detached and loftier authority was needed.²⁰¹ High-level arbitration by gentry, nobility, and bishops was always in demand prior to the seventeenth century.²⁰² In the case of suicides this was true both of lords competing over jurisdiction and claimants disputing assets. The almoner’s intervention in these cases sometimes resulted in formal grants that give a ﬂavour of how he and others saw his role. The few that survive can be classiﬁed as unconditional or unilateral, and conditional or bilateral. The ﬁrst type was a simple grant of all, or part of, the forfeited goods without stated obligation on the beneﬁciaries. An example is from Francis White, Bishop of Ely, dated 1635. In an inquisition before Christopher Barber, gentleman and coroner, Zachary Parke, late of Roppesly (Lincs.) yeoman, was found a felon of himself. Francis disposed to John Barron of Tighe (Rutland), yeoman, various bonds owed to Zachary, including a £5 bond from 1631 owed by Barron himself. No composition is mentioned, but the grant concludes by saying that Barron could use the obligations as his own or sue for their recovery in the name of the almoner in any Westminster court—provided he pay his own costs.²⁰³ The disposition was of speciﬁed assets to an interested party within Parke’s existing debt and credit universe. The second, conditional type reveals more explicitly the social engineering behind the almoner’s work. An unusually full, but sadly rare, example concerns the estate of Nicholas Herrick, a wealthy London goldsmith, who died on 9 November 1592.²⁰⁴ One document is an arbitration award, whose purpose is to establish what would happen to Herrick’s goods, for the means of his death were unclear. The almoner had seized the goods in case Herrick ‘bee found to have made away himself by violent death as allso for the ordering & disposing of the sayd goods to the use of the wife and children’. The deal was struck between, on ²⁰⁰ Bellamy, Criminal law, 78–84. E. Powell, Kingship, law, and society: Criminal justice in the reign of Henry V (Oxford, 1989), 97–107. M. Ingram, ‘Communities and courts: Law and disorder in early seventeenth-century Wiltshire’, in J. S. Cockburn (ed.), Crime in England, 1550–1800 (London, 1977), 125–7. J. G. Jones, Law, order and government in Caernarfonshire, 1558–1640: Justices of the peace and the gentry (Cardiff, 1989), 106–7. H. A. Lloyd, The gentry of south-west Wales, 1540–1640 (Cardiff, 1968), 172–3. ²⁰¹ Dawson, Lay judges, 165–9. ²⁰² C. Rawcliffe, ‘The great lord as peacekeeper: Arbitration by English noblemen and their councils in the later Middle Ages’, in J. A. Guy and H. G. Beale (eds), Law and social change in British history (London, 1984), 37. ²⁰³ Leicestershire RO DE1431/295. See also House of Lords RO HL/PO/JO/10/1/64. ²⁰⁴ Leicestershire RO DG9/2411.

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the one hand, Richard Fletcher, Bishop of Bristol (as almoner) and, on the other, Mr William Stone, mercer, representing his daughter Julian (Herrick’s ‘loveinge wife’) and Robert and William Herrick (Nicholas’ brothers and overseers of his will) on behalf of the six fatherless children.²⁰⁵ The arbitrators were Sir Richard Martin, alderman, and Giles Fletcher, remembrancer of London. Representatives of the family had a week to pay the almoner £120 composition, on top of £100 already paid. This was a large sum, but it amounted to just 7 per cent of Herrick’s substantial movable estate, inventoried at nearly £3,100.²⁰⁶ The deal was binding ‘whither the death of the sayd Nicholas Herrick bee found by the Coroners enquest to have ben casuall & accidentall or ells a willfull murdering & making away of himself’. In return, the administrators of Herrick’s estate got title to ‘all such goods chattels debts & other things that any ways are or might bee found due’ to the almoner, and a discharge, authenticated by ‘a full composition in writing under his hand & seal of ofﬁce’, of any claims he might have had to the estate.²⁰⁷ The arbitration was followed by a deed poll issued by the almoner on 29 November, stating that ‘Nicholas Herricke, late citizen and goldsmith of London about the nyneth day of this instant moneth of November (as is supposed) did throwe himself forthe of a garret windowe in London aforesaide whereby he did kill and destroye himself’ and specifying the distribution of his estate.²⁰⁸ These documents show a royal ofﬁcial taking a percentage of the estate, but surrendering most of it to the family. Almoner charges, on the few occasions they are known, were higher than the 1–3 per cent usual for probate of a testament of movable goods and chattels: the ‘going rate’ was 5–10 per cent.²⁰⁹ However, inventories give only the gross values of estates, and debts owed by the deceased were not usually listed, meaning that the percentage of net assets levied for conﬁrmation would normally be higher than 1–3 per cent.²¹⁰ Further, the almoner was dealing with an offence and its complex consequences rather than simply authenticating title following a natural death.²¹¹ While late medieval church courts might conduct administrations of intestate estates (only one in three or four adult males made a will) and those heavily indebted ones that executors were reluctant to take on, early modern ones were not themselves ²⁰⁵ Leicestershire RO DG9/2406. ²⁰⁶ Leicestershire RO DG9/2406. DG9/2407. DG9/2417. F. W. Moorman, Robert Herrick: A biographical & critical study ( London, 1910), 15, states that the estate was worth over £5,000 (making the composition 4%) but this may have included debts unlikely to be collected. DNB. ²⁰⁷ Leicestershire RO DG9/2411. ²⁰⁸ Leicestershire RO DG9/2410. The verdict of the inquest is unknown. ²⁰⁹ T. Arkell, ‘The probate process’, in T. Arkell, N. Evans and N. Goose (eds), When death do us part: Understanding and interpreting the probate records of early modern England (Oxford, 2000), 12. See for example Canterbury Cathedral Archives CCA-DCc-ChAnt/G/172 (1683) and Hunnisett, Sussex coroners’ inquests, 1603–1688, no. 72. ²¹⁰ J. S. Moore, ‘Probate inventories—problems and prospects’, in P. Riden, Probate records and the local community (Gloucester, 1985), 12. ²¹¹ Wunderli, London church courts, 113–14. The ﬁxed element in the fee made it regressive.

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involved in the mechanics of probate administration.²¹² In contrast, the almoner (or other lord) and his subordinates were sometimes engaged in the troublesome and expensive business of identifying, collecting, and distributing assets. There was more to Herrick’s world than just his family, and the almoner tried to take account of a wider network of debt and credit in the event that Herrick was found felo de se. The arbitration award added provision for paying his debts. The agreement speciﬁed that if Herrick was found to have murdered himself, ‘all such debts as wear due to bee payed by him by bill bond or otherwise at the time of his death shall be duely payed wholly and fully out of the sayed goods and chattels at such time as they shall be found due by speciallttie or otherwise’, provided the funds were available. If there was a shortfall, ‘the sayd debts shall bee payed rateably [proportionally] so far as the goods shall extend, leaving to the wyfe and children such reasonable sumes as to the said reverend father [the almoner] shall be thought meet towards their relief ’.²¹³ This followed probate law, where debts had always to be paid before legacies.²¹⁴ While subject to arbitration, the almoner reserved the right to act as an adjudicator himself in ﬁne-tuning the distribution of Herrick’s assets, relying on his franchise to carry the protagonists, but also on the authority of a man with an instinct for what was just.²¹⁵ This last provision created an obligation on the executors to try to resolve Herrick’s ﬁnancial relationships. It showed the almoner operating as a cross between a facilitator of probate and a bankruptcy adjudicator, continuing the administration of what Helmholz calls ‘probate bankruptcy’.²¹⁶ Herrick was far from bankrupt, but Bishop Fletcher administered what looks like an extra-legal form of dealing with debt called a ‘composition’, ‘assignment’, or ‘deed of trust’. Conceived as a solution to an unusual situation requiring special protection, this involved assigning a debtor’s assets to one or more creditors to act as trustee(s) for them all. Like a form of private bankruptcy, compounding with the almoner for a suicide’s forfeited assets was a way to secure assets, ensure an equitable settlement for all creditors (though their situations and the nature of their lending might vary considerably) and get the administrator of the estate off the hook.²¹⁷ The death of the debtor (like a bankruptcy commission) suspended the ability of creditors to act as they wished, but the almoner’s grant revived it within deﬁned parameters that made it harder for some creditors to act unilaterally.²¹⁸ ²¹² Ibid., 115. ²¹³ Leicestershire RO DG9/2411. ²¹⁴ Godolphin, Orphan’s legacy, 215. ²¹⁵ Adjudication did not necessarily exclude arbitration. On different forms of dispute resolution or ‘settlement-directed talking’ see S. Robert, Order and dispute: An introduction to legal anthropology (Oxford, 1979), 69–78. ²¹⁶ Helmholz, ‘Bankruptcy and probate’, 428. ²¹⁷ Hoppit, Risk and failure, 30. Gray, ‘Equitable function’, 214. Helmholz, ‘Bankruptcy and probate’, 419. ²¹⁸ Jones, ‘English bankruptcy’, 46.

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Until the Restoration, recorded bankruptcies numbered no more than a couple of dozen a year, mainly because it was hard to prove insolvency. Early bankruptcy law created a legal distinction based on ‘occupation, sources of income, and modes of life’, and composition for debt had a social as well as a ﬁnancial dimension.²¹⁹ Bankrupts were mostly from the ranks of minor craftsmen and tradesmen: in the 1590s a third of formal bankruptcy commissions were against chapmen, possibly because it was hard to pin down their assets at law.²²⁰ It is more than a coincidence that suicides were disproportionately from the same ranks of society. This was also the sort of person that the church courts tended to steer away from formal probate process after the Mortuaries Act of 1529 (21 Hen. VIII, c. 6), because those worth £5 or less were exempt from all charges except a small fee.²²¹ Seen in this light, forfeiture and re-granting was no different from many other debt-collection measures in a period of social, economic, political, and legal change. Other contemporary legal structures were designed to deal with similarly unusual post mortem situations. For example, probate accounts were only required by the church courts from administrators and, less commonly, executors in cases where numerous debts were owed at death, or where heavy expenses seemed likely. Enforceable only after the Statute of Wills of 1540, the heyday of probate accounts was between the 1580s and 1680s. Prior to 1685 (1 Jas. II, c. 17) the total value of the estate seems to have played little part in the decision to require an account: until the mid-seventeenth century many estates were worth less than £10. And until 1685 (after which accounts could only be demanded by family or creditors of the deceased) they were generally compiled as a result of supervision by higher church courts of lower, driven by the need to distribute fairly and equitably the assets of an encumbered intestate estate.²²² Probate processes were applicable to normal deaths. While the designation of executors would have had no effect if Herrick was found felo de se, a desire for compromise, conciliation, and consensus is indicated by the almoner’s choice to work with, and through, those Herrick had named in his will, placing a ﬁduciary trust in commissioners perceived as the ‘natural’ choice. The agreement speciﬁed that the debts were to be settled as soon as possible and certainly within a month: a further indication of the almoner’s role in quickly tying up the loose ends of an ambiguous or bad death so as to minimize disruption to economic and social networks. Part four of the agreement covered the ﬁnal eventuality. If Herrick was found to have died by accident, his widow and brothers were to administer the ²¹⁹ Jones, ‘English bankruptcy’, 51. ²²⁰ Ibid., 5. J. and N. Cox, ‘Probate 1500–1800: A system in transition’, in Arkell, Evans and Goose (eds), When death do us part, 16. ²²¹ Arkell, ‘Probate process’, 12. The statute states that no mortuary should be charged on movables worth less than 10 marks. Bower, ‘Introduction to probate accounts’, xxxiii–iv. ²²² I. Mortimer, ‘Why were probate accounts made? Methodological issues concerning the historical use of administrators’ and executors’ accounts’, Archives 31 (2006), 2–17. Bower, ‘Introduction to probate accounts’, xxii, xliii–v.

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estate, which was to be apportioned to the widow and children ‘according to the custom of the Citie of London’: a third to the widow, two-thirds to the children. This was also the uncontroversial division that Herrick himself speciﬁed in his will of 7 November 1592.²²³ At one level this case looks like a naked piece of exploitation, with the almoner playing on the fears of the family that Herrick would be found felo de se. They knew he died after falling from a window, but were plainly in doubt about whether he jumped or ‘cam to his end by soom casualtie & mishap’. In his will he described himself as ‘of perfecte memorie in Soule but sicke in bodie’.²²⁴ Yet to assume that the almoner abused his position goes too far, for Herrick’s affairs were weighty and complicated. The postmortem inventory of his goods is more than sixteen metres in length, and the administration of the estate to the beneﬁt of his family rumbled on for more than a decade.²²⁵ Furthermore, there was enough ambiguity about his death to make it likely that problems and disagreements would arise in administering the estate—difﬁculties that the almoner’s grant would go a long way to resolving. The predicament for Herrick’s family was his possible suicide: they needed help and they seem to have embraced the almoner’s intervention eagerly, even if it meant paying a fee and acknowledging publicly that Nicholas might have killed himself. Herrick’s will was declared valid by the Prerogative Court of Canterbury, but three months after his death his widow petitioned Queen Elizabeth to order the transfer of his case to William Lewen, her Commissary, as it had been so protracted and expensive in the ecclesiastical courts.²²⁶ Getting probate was not necessarily an end to disputes and, as in the Middle Ages, many testamentary suits at the church courts followed its granting.²²⁷ Again the almoner could be part of the solution rather than another component of the problem. Supporting, reviewing, and regulating more than expropriating and punishing, he helped Herrick’s family and his wider network to deal with aspects of social and economic risk created by an unusual life event. His resolution achieved a binding reconciliation that gave both parties not only a material settlement, but also a measure of dignity. Their willing consent to the ‘frendly and quyett end’ achieved made it more likely to work because the justice of the settlement was mutually acknowledged.²²⁸ Arbitration meant reconciliation, itself a Christian ²²³ Leicestershire RO DG9/2406. Widows had certain other protections at common law. 21 Hen. VIII c. 5. Godolphin, Orphan’s legacy, 131. ²²⁴ Leicestershire RO DG9/2406. ²²⁵ Leicestershire RO DG9/2409. ²²⁶ Leicestershire RO DG9/2408. DG9/2412. DG9/2415. PCC 95 Nevell. There is another grant in 1601, associated with a challenge by a beneﬁciary to the division of the estate. ²²⁷ Woodcock, Medieval ecclesiastical courts, 72–4, 85. ²²⁸ Dawson, Lay judges, 168. E. Powell, ‘Settlement of disputes by arbitration in ﬁfteenth-century England’, LHR (1984), 21–43. Y. Castan, Honnêtet´e et relations sociales en Languedoc, 1715–1780 (Paris, 1974), 70. N. Castan, ‘The arbitration of disputes under the ‘‘Ancien R´egime’’ ’, in Bossy (ed.), Disputes and settlements, 219–60.

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act.²²⁹ However, it did not guarantee resolution if one party still felt wronged, and they could again resort to the litigation of which it was often an adjunct. In this instance, widow Julian challenged the settlement and had her share increased to two-ﬁfths. Arbitration was another instance where the common law did not technically recognize the validity of the settlement, something that did not prevent it from being a highly desirable way to resolve any dispute.²³⁰ A second example of a conditional grant concerns the goods of Nicholas Baker, a yeoman from Somerton in Somerset, who hanged himself in early May 1600 and was found felo de se. Anthony Watson, the queen’s almoner, assigned his goods and chattels, inventoried at £41 15s 10d, to Edward Hext, esquire, of Netherham.²³¹ Dated 13 June 1600, the grant is a commission or delegation of responsibility to a nominee, which spoke of the ‘speciall trust and conﬁdence’ the almoner placed in Hext. Made ‘in Almes’, it required Sir Edward to use the assets recovered ‘to and for the onely beneﬁtt relief and maynetenance of Joan Baker widdowe late wief of the said Nicholas Baker and of the two children’ of the marriage. The aim was protective, not exploitative. Hext was also lord of the manor of Somerton, and the document explicitly stated that the ‘grante or composicon’ should not infringe on any rights he might have. Even without the almoner watching over him, Hext was not a man to abuse the weak. He was a prominent, public-spirited local justice and, while militantly hostile to the idle, undeserving poor, he was a deeply religious man noted for giving to charity.²³² The document is an example of a commission, an instrument of administration used extensively by the Tudors and early Stuarts. The best known type is the Commission of the Peace, but commissions touched many other areas: from taxation, highways, and grain supplies (which usually involved a speciﬁc jurisdiction) on the one hand, to the mediation and arbitration of disputes (which meant only the delegation of a speciﬁc authority) on the other.²³³ Hext himself acted as an Exchequer commissioner investigating by jury the estate of another suicide (Sir George Rodney of Rodney Stoke in Winterstoke hundred) during July of the same year.²³⁴ Hext may not have handled Baker’s estate personally, for sometimes ²²⁹ Bossy, ‘Postscript’, 289. A. Musson, Medieval law in context: The growth of legal consciousness from Magna Carta to the Peasants’ Revolt (Manchester, 2001), 91–3. ²³⁰ Ingram, ‘Communities and courts’, 125–6. E. Powell, ‘Arbitration and the law in England in the later Middle Ages’, TRHS 33 (1983), 49–67. B. A. Hanawalt, ‘Of good and ill repute’: Gender and social control in medieval England (Oxford, 1998), 35–52. When parties agreed to arbitrement they could not pursue the action at common law. J. B. Post, ‘Courts, councils, and arbitrators in the Ladbroke manor dispute, 1382–1400’, in R. F. Hunnisett and J. B. Post (eds), Medieval legal records (London, 1978), 294–5. ²³¹ Somerset RO DD/MI/18/77. ²³² C. J. Ribton-Turner, A history of vagrants and vagrancy and beggars and begging ( London, 1887), 125–8, 491–2, and F. Aydelotte, Elizabethan rogues and vagabonds ( Oxford, 1913), 168–73. ²³³ Jones, ‘English bankruptcy’, 6–7, 10. The issuing of commissions under Henrician and Elizabethan bankruptcy legislation was done by a great ofﬁcer of state (solely the Lord Chancellor after 1571). ²³⁴ Thynne Papers Vol. LIV, f. 9 [BL microﬁlm]. NA E 134/44Eliz/Hil9.

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‘worthy’ men were named on commissions simply to give the delegation force.²³⁵ But in person or in spirit, the administrator worked with the almoner to defend the interests of a vulnerable member of his local community at a difﬁcult time. These detailed explorations of almoners in action help to explain why forfeiture for suicide was not an important cause of poverty among survivors—unless the suicide was already insolvent. The assertion that forfeiture did create distress seems to have originated with the medieval complaint that the church courts ‘appropriate something in the form of a tax and often something very considerable, not without great damage to the heirs’, a criticism broadened to felony forfeiture in the radical, evangelical polemic of Henry Brinkelow in the 1540s.²³⁶ It reappears in mid-seventeenth-century proposals for law reform, and resurfaced yet again in debates over penal change in the early 1820s.²³⁷ Emotive and enduring as the complaint is, it lacks factual basis. Neither Steve Hindle nor Paul Slack, the leading authorities on early modern English poor relief, has found any cases of suicide forfeiture leading to poverty: hardly surprising when the principle that forfeiture should not affect the guiltless survivors was made explicit.²³⁸ For example, the Stanley lords of the Isle of Man stated that ‘If any forfeit his goodes to the Lord by Felony his wife shall not forfeit her part of goods’.²³⁹ Expectations of lordly circumspection may explain the lack of generalized opposition to forfeiture, for not all feudal exactions were seen as predatory and biased. The Book of Bounty, published in 1610 and intended to end royal grants that were illegal, oppressive to the subject, or destructive of royal income, regarded the granting of forfeitures arising from felonies as permissible (if not always popular); they were certainly legal, and the main complaint was about abuses, such as pre-conviction applications for living felons’ forfeitures, rather than demands for forfeiture’s overthrow.²⁴⁰ Among other feudal tribunals, the contemporary Court of Wards was staunchly defended as an honourable institution with important social responsibilities.²⁴¹ Unlike wardship, both escheat (of lands) and forfeiture (of movables) survived the Statute of Tenures ²³⁵ Jones, ‘English bankruptcy’, 25. Treasury Books V, 1009 (28 May 1678). ²³⁶ Polydore Vergil, Anglica historia (1534), quoted in Wunderli, London church courts, 113. Ordinaries were accused of exhorbitant charges, but research suggests they were very modest and that probate was granted swiftly. S. Lander, ‘Church courts and the reformation in the diocese of Chichester, 1500–58’, in C. Haigh (ed.), The English reformation revised (Cambridge, 1987), 44–5. C. Haigh, ‘Anticlericalism and the English reformation’, in ibid., 62. Swanson, Church and society, 168, 189–90. H. Brinkelow, The complaint of Roderyck Mors . . . for the redresse of certen wicked lawes (Strasbourg, 1542), ch. 3. ²³⁷ Veall, Law reform, 131. Parliamentary debates new series IX, col. 415. Works of Jeremy Bentham, vol. 1, 479–80. ²³⁸ Personal communications. S. Hindle, On the parish: The micro-politics of poor relief in rural England, 1550–1750 (Oxford, 2004). ²³⁹ Quoted in D. Craine, Manannan’s Isle (Glasgow, 1955), 40. For practical examples from the mainland see I. M. Edwards, ‘The courts of the manor of Ilkeston from 1559 and their gradual decay’, Ilkeston and District Local History Society Occasional Paper 3 (1971), 8–9. ACA M/III/2b/3. DP/D2/1/145. CRO D/LEC 265, no. 321. ²⁴⁰ Peck, Court patronage, 37–8. ²⁴¹ Hurstﬁeld, Queen’s wards, 332–3.

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(1660). Writers like Matthew Hale thought such feudal revenues not worth the candle, ‘in respect of their smallness, and dispersedness, and uncertainty of charge and manner of collecting very subject to be lost’ and because their political unpopularity was out of proportion with their value. In the end, collecting and accounting were pointless for such ‘a very pitiful inconsiderable business’.²⁴² Hale also wrote of the inner dynamic of forfeiture, noting that there had long been a lack of political will to proﬁt from misfortune. In the Middle Ages the crown did not always pursue its interests to suicide forfeitures and occasionally included them in general pardons.²⁴³ Indeed, one reason the oft-quoted midseventeenth-century calls for legal reform enjoyed little support was that, in a climate of legitimism and legalism, forfeiture was not a serious grievance. During the 1650s the select vestry of Cartmel in the Lake District collected and applied towards their schoolmaster’s salary deodands and felons’ goods due to the lord of the manor.²⁴⁴ Writing in the same decade, William Sheppard noted in England’s balme that creditors lost everything if a debtor was convicted of felony.²⁴⁵ What Sheppard proposed was that the assets would go to satisfy the legitimate claims of creditors, leaving the residue for the family.²⁴⁶ Sheppard carried on calls for reform of forfeiture to make its effects on third parties more predictable. For example, a draft bill of 1621 ‘for making of the Estates of attainted persons Lyable for the payment of their iust and due Debts’, would have allowed creditors of a felo de se to petition Chancery or Exchequer Chamber for payment out of funds forfeited to the crown or its franchisees.²⁴⁷ Yet, from the examples that survive, this appears to be exactly what the almoner was trying to achieve. Radical advocates of legal reform from Brinkelow onwards wanted what was already there, but they wanted it standardized because their theological inspiration provided a model of a more predictable legal system.²⁴⁸ 2 . 6 A L M O N E R A N D PE O P L E B E F O R E T H E L AW: S U RV I VO R S I N T H E C E N T R A L C O U RTS The handling of Nicholas Herrick’s estate is unusually well documented for an extra-curial settlement and the almoner’s work is normally more visible in court ²⁴² M. Hale, A short treatise touching sheriffs accompts (London, 1716), 68. C. D. Chandaman, The English public revenue, 1660–1688 (Oxford, 1975), 37–9, 125, 200–2, 348–9, 352–3, 356–7, 360–1. ²⁴³ Seabourne and Seabourne, ‘Law on suicide’, 37–8. CRO Ca/1/8. ²⁴⁴ S. O. Addy, Church and manor: A study in English economic history (London, 1913), 259–62. ²⁴⁵ Quoted in Veall, Law reform, 131. ²⁴⁶ N. L. Matthews, William Sheppard, Cromwell’s law reformer (Cambridge, 1984), 171. ²⁴⁷ W. Notestein, F. H. Relf and H. Simpson (eds), Commons debates, 1621 7 vols. (New Haven, 1935), vol. 7, 129–32. ²⁴⁸ A. Likhovski, ‘Protestantism and the rationalization of English law: A variation on a theme by Weber’, Law & Society Review 33 (1999), 365–391.

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cases that may have paralleled or followed other means of resolving disputes over assets. His activities are best known from Star Chamber suits and, to a lesser extent, from proceedings in Chancery, Exchequer, and King’s Bench—the last particularly important as scholars have used it as a core source. Trials began when a plaintiff petitioned the crown or Chancellor with a grievance or ‘information’ and sought remedy. The defendant was served with a subpoena requiring attendance at Westminster, where he or she stated their side of the case and answered questions put by a court examiner. Witnesses (and sometimes also defendants) might be examined on commission before a judgment was given by judges who were non-professional counsellors of state. Attractive to historians for the close insights they give into law and order, Star Chamber records can be difﬁcult to interpret. While the court (and others like Chancery and Requests) required written pleadings and proofs, document survival is uneven: the plaintiff’s side of the case is always represented, the defendant’s replies are found less commonly, and evidence from witnesses rarely exists; unless mentioned incidentally (in lawyers’ reports, for example), the outcome of the case is unknown as the books of judgments (orders and decrees) have not survived.²⁴⁹ As a direct royal appointee the almoner was a privileged litigator and more likely to possess ‘the patience, ﬁnancial resources, tenacity and will’ to pursue his case to a conclusion.²⁵⁰ He retained a prominent barrister called a ‘general deputy almoner’ to handle suits; he could prosecute without charge, though ofﬁcials hoped for half fees.²⁵¹ In other respects he resembled run-of-the-mill (though usually well-off) litigants who sought to use Star Chamber to enhance their negotiating power and/or coerce a long-standing opponent in some other legal forum into settlement.²⁵² In other regards he was disadvantaged. Even if successful, the suite of inventive and potentially potent penalties deployed by Star Chamber was not usually available to him. As William Hudson noted, ‘the almoner recovereth only what is detained, or the value, or something in lieu thereof, as the court shall think ﬁt, without ﬁne or any punishment’, ²⁴⁹ F. W. Brooks, ‘Yorkshire and the Star Chamber’, East Yorkshire Local History Series 4 (1954), 2–7. J. A. Guy, The court of Star Chamber and its records to the reign of Elizabeth I (London, 1985), 37–50. C. Ogilvie, The king’s government and the common law, 1471–1641 (Oxford, 1958), 98–112. T. G. Barnes, ‘The archives and archival problems of the Elizabethan and early Stuart Star Chamber’, in F. Ranger (ed.), Prisca munimenta: Studies in archival & administrative history (London, 1973), 134–6. T. G. Barnes, ‘Due process and slow process in the late Elizabethan—early Stuart Star Chamber’, AJLH 6 (1962), 221–49, 315–46. W. Hudson, ‘A treatise of the court of Star Chamber’, in F. Hargrave (ed.), Collectanea juridica: Consisting of tracts relative to the law and constitution of England 2 vols (London, 1791–2), vol. 2, 1–240; almoner prosecutions are covered at 137–8. T. G. Barnes, ‘Mr Hudson’s Star Chamber’, in D. J. Guth and J. W. McKenna (eds), Tudor rule and revolution (Cambridge, 1982), 285–308. ²⁵⁰ Hindle, State and social change, 86. ²⁵¹ Hudson, ‘Star Chamber’, 137. ²⁵² Barnes, ‘Star chamber and criminal law’, 316–26.

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the latter being imposed only on the contemptuous.²⁵³ Almoners could only use Star Chamber to punish a jury, not overturn its verdict; assize judges (who could traverse) supported inquests that followed proper form at common law.²⁵⁴ The real threat to defendants was three-fold: examination under oath concerning goods, the cost of mounting a defence, and the possibility of being summoned to appear in person before members of the royal Council at Westminster. Examination on oath was necessary ‘for that commonly those persons which prove felons de se are of retired conditions, and their estates rest in men’s hands in secret’; the defendant was deﬁnitely liable for costs if he or she lost, and those who entered answers usually complained about the intimidation of appearing before Star Chamber and the time and money needed to do so.²⁵⁵ As the earl of Northumberland put it to Salisbury in 1612, ‘the nature of censures in the Star Chamber are ad terrorem, non ad ruinam. Men are put into the king’s hands that he may use mercy, not rigour, of sentence’.²⁵⁶ How often did the almoner bring suit and what was at issue when a case came to court? While never speciﬁc about numbers, MacDonald and Murphy speak of ‘hundreds’ of cases, concluding that ‘the almoners sued in Star Chamber and sued often’.²⁵⁷ The index to Star Chamber proceedings for James I shows that there were 132 almoner prosecutions for the realm as a whole, a more precise if hardly large number amounting to less than six a year; in the reign of Elizabeth the number was 368 or just over eight a year.²⁵⁸ Prosecutions by almoners amounted to only 2 per cent of all Jacobean pleadings, and all suits initiated pro Rege were just 8 per cent of business.²⁵⁹ Yet even ‘hundreds’ do not amount to a high proportion of nearly 10,000 suicides reported to King’s Bench, 1485–1659.²⁶⁰ More detailed regional analysis of an earlier period shows that ²⁵³ Hudson, ‘Star Chamber’, 57. T. G. Barnes, ‘A Cheshire seductress, precedent, and a ‘‘sore blow’’ to Star Chamber’, in Arnold et al (eds), Laws and customs of England, 361, notes that ‘every conviction resulted in a ﬁne to the king’. ²⁵⁴ Baker, Laws of England, 1483–1558, 369, 373. NA STAC 5/A10/20, 8/1/22, 8/2/37, 8/3/4, 8/3/16. ²⁵⁵ Hudson, ‘Star Chamber’, 137–8. ²⁵⁶ Quoted in G. R. Batho, ‘The payment and mitigation of a Star Chamber ﬁne’, Historical Journal 1, 1 (1958), 51. ²⁵⁷ MacDonald and Murphy, Sleepless souls, 27, 78. ²⁵⁸ There are 13 more in STAC 7, the Elizabethan addenda. For Henry VIII’s reign the ﬁgure is 23; 19 in Philip and Mary; 15 in Edward VI. Brooks, Legal profession, 64, shows that only a tiny proportion of all central-court litigation came from Northumberland, Durham, Cumberland, Westmorland and Yorkshire. This may be because of the small number of gentry and prosperous townspeople in the early Tudor period. Ellis, ‘Civilizing Northumberland’, 111–13. ²⁵⁹ Hindle, State and social change, 68, 72, using T. G. Barnes, ‘Star Chamber litigants and their counsel, 1596–1641’, in J. H. Baker (ed.), Legal records and the historian (London, 1978), 9–10. The existence of oral accusation (without informations) may help to explain the small amount of crown business. ²⁶⁰ MacDonald and Murphy, Sleepless souls, 29. As McGlynn, ‘Idiots, lunatics’, 22, writes of early Tudor England, ‘the vast majority of the insane never encountered the prerogative’.

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both the absolute number and proportion of all suits made up of those involving almoners was very small. Among 508 cases heard prior to 1558 from 5 northern counties (excluding Lancashire) only 11, or 2 per cent concerned the goods of suicides.²⁶¹ Of these, three involved the almoner suing family members for withholding assets; six involved the almoner suing an inferior ofﬁce holder such as a bailiff; one was a counter-suit against the almoner. The same suicide was the subject of two actions twice, further limiting the number of people affected by the proceedings. In Wales too, ﬁve out of ten Tudor and early Stuart Star Chamber suits about suicide were jurisdictional.²⁶² Explored in more detail, trials involved on the one hand disputed facts, fraud, perjury, or unilateral action, and on the other competing claims to franchisal rights and social or political inﬂuence. The former concerned disputes over the handling of assets, the latter contests over entitlement to preside over their collection and distribution (see 2.8 and 9). At their root was the fact that jurisdiction was a fundamental measure of authority and exercising it a gauge of political power.

2 . 7 C O N C E A L I N G A N D R EV E A L I N G S U I C I D E : T H E S T R E N G T H S A N D L I M I TAT I O N S O F E A R LY M O D E R N G OV E R N M E N T A N D LO C A L C O M M U N I T Y Some Star Chamber cases look on the surface like head-to-head confrontations between the almoner and a family or community. They seem to support the conventional picture of kin concealing suicide and asserting familial and communal priorities over those of outsiders. Yet what characterizes these and many other cases is evasion and dissimulation, for despite the problems of determining truth (or outcome), it is usually straightforward to grasp the matter at issue when at least two sides are known.²⁶³ The question to ask in most instances is: whose interests were being pursued by an apparent effort to prioritize familial claims to goods, and at whose cost? Almoner prosecutions necessarily state that it is he who is the sufferer (and the king’s alms), but in reality he gave survivors a chance to come clean about the assets and resolve their distribution among a universe of claimants. He worked to ensure openness and fairness, dealing generously with those who put themselves at his mercy and who agreed to play by the rules of charity and equity. Quieting rumour and suspicion was an important canonical principle: ‘there is ²⁶¹ R. W. Hoyle and H. R. Summerson, ‘Handlist of Star Chamber pleadings before 1558 for northern England’, List and Index Society 299 (2003). ²⁶² Of 337 cases at Star Chamber 1540–1625 involving people from south-west Wales, 105 were about title to land, and a further 119 of 261 heard by Exchequer 1558–1625 and also 75 of 149 at Chancery 1538–58 were about disputed title. Lloyd, Gentry of south-west Wales, 49. ²⁶³ Ibid., 48–9n.

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nothing hid which shall not be manifested; neither was anything kept secret but that it should come abroad’.²⁶⁴ Almoner suits were mostly about discovery and distribution of what was ‘kept secret’, for early modern people assumed both the need for, and the desirability of, community regulation, based on acceptance of the propriety of neighbourly scrutiny of behaviour and conscience.²⁶⁵ Like Chancery and Exchequer, Star Chamber was useful for uncovering evidence to be used in another court, for tracing and charging property, and for compelling submissions of decedents’ estates to court jurisdiction.²⁶⁶ What resources were available for these searches? Tom Barnes has written of the early Stuart almoner’s ‘elaborate organization in London and the counties’, but this exaggerates what was a thinly spread apparatus.²⁶⁷ Most counties except Yorkshire had only one deputy almoner at a time (or escheator or feodary), though assistants may have been recruited on an ad hoc basis.²⁶⁸ For example, the deputy almoner in Cumberland in 1621 was Cuthbert Orfeur, who in various documents was styled as royal feodary in that county (1636; an appointee of the master of the Court of Wards) and royal escheator there (1603; an appointee of the Lord Treasurer).²⁶⁹ Such jobs probably circulated among local gentry. Instead of using designated bureaucrats, who were few, English government worked at the grass roots by exploiting traditions of group accountability, notably through the commission of responsibility for administering or resolving disputes to individuals nominated for the occasion.²⁷⁰ When their shadowy work can be picked up in court cases, the deputy almoner’s assistants look like consistorial ‘sub-apparitors’ or deputy summoners (known as ‘mandatories’ in the diocese of York). These deputies performed a number of unpopular tasks, like delivering citations, ferreting out estates that might be subject to ecclesiastical probate, and sequestrating the goods of the intestate.²⁷¹ ²⁶⁴ Mark 4:22. ²⁶⁵ M. Ingram, ‘Sexual manners: The other face of civility in early modern England’, in Burke, Harrison and Slack (eds), Civil histories, 87–109. ²⁶⁶ Barnes, ‘Due process’, 331. T. G. Barnes, List and index to the proceedings in Star Chamber for the reign of James I (1603–1625) in the Public Record Ofﬁce, London, class STAC 8 3 vols (Chicago, 1975), vol. 1, 32. Guy, ‘Law, equity and conscience’, 190. Helmholz, Canon law, 409–10. ²⁶⁷ T. G. Barnes, Somerset 1625–1640: A county’s government during the ‘Personal Rule’ (London, 1961), 126n. ²⁶⁸ C. I. A. Ritchie, The ecclesiastical courts of York (Arbroath, 1956), 40–5, 172–3. Woodcock, Medieval ecclesiastical courts, 48, 112. Hurstﬁeld, Queen’s wards, 238. D. J. Clayton, The administration of the county palatinate of Chester, 1442–1485 (Manchester, 1990), 181–7. There were 45 feodaries in the sixteenth century. ²⁶⁹ CRO D/LEC 265, no. 267. D/AY/1/293. The duties of the two often overlapped. Lloyd, Gentry of south-west Wales, 26–9. The feodary was abolished by the Statute of Tenures of 1660, rendering the already declining ofﬁce of escheator even less important. Lords like the earls of Northumberland also employed feodaries. English, Great landowners, 155. ²⁷⁰ Hurstﬁeld, Queen’s wards, 44. Jones, ‘English bankruptcy’, 6–7. Smith, ‘Modernization’, 169, 171. ²⁷¹ Helmholz, Canon law, 317–21, 409. Ritchie, Ecclesiastical courts, 40–5. Outhwaite, English ecclesiastical courts, 9, 10, 21, 64, 66, 100. R. Wunderli, ‘Pre-reformation London summoners and the murder of Richard Hunne’, Journal of Ecclesiastical History 33 (1982), 209–24.

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Deputy almoners were responsible for the day-to-day administration of forfeitures. Like escheators or feodaries, they ‘had to weigh up the orders and threats of a distant monarch as against the more intimate pressure of local interests’ and power brokers.²⁷² Normally they came to some sort of accommodation with the family and creditors of a suicide, based on disclosure rather than actual surrender of assets and, as a complaint against the widow of John Harrison put it in 1605, for the relatives ‘to yeald composition for his sayd goods and chattels’.²⁷³ With hundreds of suicides a year reported to King’s Bench by the Elizabethan period, in most cases almoners’ deputies neither looked for assets nor administered directly the small and heterogeneous ‘baskets’ of forfeited goods that they knew about. Finding out what assets there were was hard enough without the costs of collecting and selling them, meaning that composition must have been the preferred route.²⁷⁴ Deodands—generally one basic marketable item such as a knife or rope (or, more substantially in accidents, a horse, cart or boat) —were also routinely settled for cash by the almoner’s deputies.²⁷⁵ With outlaws too there were local mechanisms for compounding, albeit done by a lay ‘farmer’.²⁷⁶ Deputy almoners would have avoided the sometimes complex webs of debt and credit, rights and obligations, claims and counter-claims that comprised a person’s affairs. Instead they took a small percentage, comparable with probate fees, and authenticated the title of those with an interest in the movable estate. Met with silence, passive obstruction, or active resistance, a deputy almoner’s task would soon have become impossible without a measure of cooperation from some, if not all, interested parties, and the proffered ideal of intervention was to work with the assistance of ‘certen of the moost honest inhabitants’ of a locality.²⁷⁷ This explains the exploratory tone of complaints to Star Chamber and other equity courts. Their wording is often vague, the almoner being as sure as he needed to be that goods were being withheld by people close to the ²⁷² Hurstﬁeld, Queen’s wards, 230. H. M. Jewell, English local administration in the Middle Ages (Newton Abbot, 1972), 99–102. Brown, Governance of late medieval England, 145. B. M. S. Campbell, English seigniorial agriculture, 1250–1450 (Cambridge, 2000), 37–8, 85–6. P. Williams, The later Tudors: England, 1547–1603 (Oxford, 1995), 153. F. C. Dietz, ‘The receipts and issues of the Exchequer during the reigns of James I and Charles I’, Smith College Studies in History 13 (1928), 129–30. ²⁷³ NA STAC 8/1/7. ²⁷⁴ Smith, ‘Deodand to dependency’, 389. C. Loar, ‘ ‘‘Go and Seek the Crowner’’: Coroners’ Inquests and the Pursuit of Justice in Early Modern England’, (Northwestern University Ph.D., 1998), 153–74. J. G. Bellamy, Criminal law and society in late medieval and Tudor England (Gloucester, 1984), 90–114. The role of paid informants is unclear for suicides, though Bellamy implies that informants were kept away from both conciliar justice and also from felonies. Ibid., 104. G. R. Elton, ‘Informing for proﬁt: A sidelight on Tudor methods of law-enforcement’, EHR 11 (1954), 149–67. M. W. Beresford, ‘The common informer, the penal statutes and economic regulation’, EcHR 10 (1957–8), 221–38. ²⁷⁵ M. Foster, A report of some proceedings on the commission of oyer and terminer and gaol delivery for the trial of the rebels in the year 1746 in the county of Surry (Oxford, 1762), 265–7. ²⁷⁶ Lancashire RO DDKE/5/133. DDKE/9/125/32. ²⁷⁷ NA STAC 2/17/123.

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suicide, but uncertain about exactly what, by whom, and where.²⁷⁸ Complaints tend to be long on the rhetoric of order and commonwealth, but short on hard facts as the almoner sought information to help guide and pressure, mediate and arbitrate. On one occasion he was duped into suing.²⁷⁹ Notionally at least, almoners could have been informed about suicides from the inquests reported to King’s Bench. There is evidence to suggest that this resource was used for routine settlements of deodands and forfeitures: R. F. Hunnisett linked Sussex inquest verdicts with King’s Bench indictment ﬁles and Controlment Rolls, with deputy almoners acknowledging payments in the latter.²⁸⁰ However, Star Chamber suits are often clouded by ignorance and confusion. In a number of bills the almoner was unclear whether a verdict was felo de se —or even whether a suicide had occurred—and defendants might deny one or other: something that would have been easily veriﬁable had cases been propelled by central records.²⁸¹ The often long time between suicides and suits also suggests that prosecutions were driven by local knowledge. The almoner’s patent required him only periodically to enquire into the goods of felons of themselves and deodands, but it is more likely that he was brought into a case by an interested party to resolve either long-running disagreements or recently uncovered assets. The tone of almoner prosecutions is indeed reactive rather than pro-active, exploratory rather than incisive: hardly surprising when charity, like royal mercy and divine grace, had to be requested. For reasons of omission or commission, delays in any legal process were common. Administration of a testament was normally expected to start within four months of death and to be completed within a year, but challenged wills could take years to settle.²⁸² Facts sometimes remained in darkness for years or decades: a Star Chamber case of 1605 hinged on events that had occurred twenty years earlier.²⁸³ In another case, the almoner did not become involved until six years after the death of Yorkshireman Thomas Gledhill, when a bare-faced attempt by his widow to simulate natural death eventually collapsed under persistent local scrutiny. Gledhill cut his throat in October 1619, but his wife ‘(a politique woman)’ and her brother, William Harrison, stayed gossip by bribing the servants to be silent. They staunched the wound in his throat with rags and paper and dressed him in clean clothes so the neighbours could see him. A lavish burial with a funeral sermon followed. After a month the body was dug up when a bailiff of the liberty became suspicious.²⁸⁴ When an inquest was ﬁnally called, the Harrisons bribed the coroner and jury, who used the excuse of the bad smell ²⁷⁸ DUA CCB B/189/18, is an extreme version of generalized ‘ﬁshing’ that contains almost no hard facts. ²⁷⁹ NA STAC 5/A19/8. ²⁸⁰ Hunnisett, Sussex coroners’ inquests [all 4 volumes]. ²⁸¹ NA STAC 2/1/102. STAC 3/4/73. STAC 5/A22/1. E 134/21Chas2/Mich20. ²⁸² Arkell, ‘Probate process’, 9–10. ²⁸³ NA STAC 8/1/9. ²⁸⁴ The bailiff of a franchise was an independent crown ofﬁcer. J. Ritson, The ofﬁce of bailiff of a liberty (London, 1811), 16.

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not to subject the body to detailed examination. During 1624–5 the widow and brother-in-law fought an action brought by the bailiff at King’s Bench before, at Michaelmas 1625, the almoner pursued them before Star Chamber and they had eventually to confess to fraud and bribery. Throwing themselves on the king’s mercy, they lost all claim to Gledhill’s assets. In 1628 an anonymous petitioner applied for a grant of a quarter of the estate, the other three-quarters already granted to Aquila Day, a servant to the royal wardrobe.²⁸⁵ The Harrisons’ mendacity, audacity, and obstinacy amounted to a blatantly ungrateful denial of royal authority and social responsibility.²⁸⁶ While they plainly thought that a brief period of bold face would create a solution that suited them, they ended up facing a decade of lying and, ultimately, a far riskier and less satisfactory outcome as local, and then national, courts were successively brought to bear on them. This case is important, not only because it exempliﬁes an attempt at fraud which neighbours and local ofﬁcials helped to expose, eventually with the almoner’s help. On the surface the case also offers support for the assumption that, for emotional and practical reasons, those close to a person will reject the idea that they died by their own hand.²⁸⁷ Yet, on anything other than a superﬁcial reading, much of the documentation shows exactly the opposite, including most Star Chamber suits and also surviving inquest depositions from late seventeenthand eighteenth-century Cumberland and late eighteenth-century Berwick-uponTweed. Those who found people dead or dying immediately sought witnesses and helpers to aid in attempts to care for, revive, or move the body. Those who heard rumour of a death, by whatever cause, moved swiftly to verify it for themselves. Thomas Shephard said he had been in his house on 11 November 1663 when a report came that Simon Hine ‘had undone himselfe’, so he went to Hine’s house ‘to know the certainty therof ’.²⁸⁸ A propensity towards suicide was also hard to disguise, for neighbours had to be involved in prevention. The septuagenarian Robert Ravell had ‘been mentained by his children for many years past’ and his daughter Jane said he had been ‘melancholly for many years & much disturbed in mind and in that respect the family were often obliged to get their neighbours to assist them in order to prevent him from doing any mischiefe to himselfe’.²⁸⁹ This local care and concern was part of the broad obligation to ‘make and doe neyburhode’, as Liverpool town council put it in 1541.²⁹⁰ It was neighbourly scrutiny rather than outside authority ²⁸⁵ NA SP 16/126, item 79. The meat of the case is transcribed in Stevenson, ‘The rise of suicide verdicts’, 58, 60. ²⁸⁶ For another example where concealment was less important than ingratitude see NA STAC 5/A4/34. ²⁸⁷ Prior, Social organization of death, 1. ²⁸⁸ CRO D/LEC/CRI/1/4. ²⁸⁹ CRO D/LEC/CRI/26/1. ²⁹⁰ J. A. Twemlow (ed.), Liverpool town books: Proceedings of assemblies, common councils, portmoot books etc, 1550–1862 [sic: 1550–1603] 2 vols. (Liverpool, 1918–35), vol. 1, 11n.

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that undid the widow of Robert Lowthian of Kirkoswald (Cumberland) after he hanged himself in 1718. His wife found him, cut him down and called the neighbours. However, she did not volunteer the circumstances in which the corpse was discovered. Only later was a neighbour suspicious, after being asked by the parish constable to view the body. He thought at ﬁrst that Lowthian had died ‘by the visitation of God almighty’, and only afterwards looked more closely at the body, when he found the mark of a rope on his neck.²⁹¹ Being open and honest and acting quickly had other imperatives. With suspects, convicts, and suicides, an interested party who acted quickly and openly could secure claim to an estate by approaching a coroner, magistrate, or almoner. Nicholas Herrick’s administrators did so. Indeed being slow to institute a legal claim could be disastrous because the law of obligations favoured the ﬂeet of foot. After his kinsman Richard was found felo de se in 1641, Thomas Webbe delayed his application, allowing other creditors with a greater interest to apply for the almoner’s grant and to use the almoner’s name in legal proceedings before Star Chamber to recover assets at the expense of Thomas’ claims.²⁹² Famously, diarist Samuel Pepys applied for and obtained in January 1668 a royal grant of his relation Anthony Joyce’s assets in favour of his widow and children immediately after Joyce died and before an inquest had sat; the family was concerned about forfeiture even while he lingered in the days between trying to drown himself and ﬁnally passing away.²⁹³ As Pepys immediately realized, and as Webbe became aware, forfeiture was potentially a marketable commodity as, for example, was wardship.²⁹⁴ More, the crown itself could intervene directly with a Privy Seal grant.²⁹⁵ Faced with this, the family and creditors of a suicide could either try to disguise the fact or seek actively to participate in inquest and composition. Dissimulation and delay might work, but it also carried multiple risks. As Pepys knew, and as Webbe found to his cost, being open and seizing the initiative could be the better tactic, for the problem was not so much forfeiture, as who would be granted the right to administer the assets. ²⁹¹ CRO D/LEC/CRI/27/4. ²⁹² House of Lords RO HL/PO/JO/10/1/64. ²⁹³ Latham and Matthews (eds), The diary of Samuel Pepys, vol. 9, 32–4. ²⁹⁴ Hurstﬁeld, Queen’s wards, 58–80. ²⁹⁵ Foster, A report of some proceedings, 266. W. O. Ault, Private jurisdiction in England (New Haven, 1923), 3. The crown could intervene directly if approached before other franchise holders had begun to assert claims. Kingsmill v. Bishop of Rochester (1682). Bryson, Equity cases in Exchequer, case 158. It could also act to correct injustices. NA SP 38/14 (21 May 1628). Treasury Books IV, 849 (24 November 1675); V, 150 (8 March 1676); IX, 2010 (16 May 1689) and 2016 (21 July 1690). CSP Dom. 1675–6, 276 (29 August 1675). A Treasury Book entry of March 1668 concerning a Mr Beeling, bookseller at Temple Bar who poisoned himself, states that the king ‘will reserve the thing to himself’, but a subsequent entry makes it clear that this meant resolving who was entitled to the forfeiture. Treasury Books II, 266, 269.

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2 . 8 C O M PE T I N G LO R D S H I P : T H E R I G H TS O F A L M O N E R S A N D OT H E R F R A N C H I S E E S Being ingenuous and embracing forfeiture meant having the chance to order a suicide’s affairs within a recognized structure of law and authority. Yet laying claim to material goods was further complicated by the possibility that the family and other creditors might have to deal not only with the almoner, but also with another lord who claimed the forfeited estate. Even behind cases that apparently involved factual differences, and even within those that seem to be about local solidarities against an outsider, there were issues of overlapping, and sometimes competing structures of authority. The problem was that while the almoner had a national grant of deodands and the goods of felons of themselves, certain other lords had the same privileges over a locality. Simply being lord of a manor was not enough to secure such rights, for the manor was an aspect of feudal tenure, whereas a franchise was an explicit delegation of royal authority by charter.²⁹⁶ The right to felons’ goods was most commonly enjoyed or claimed by lords of the northern and Welsh Marches, and the same seems to have been true of the goods of felons of themselves, though the latter was much less commonly granted.²⁹⁷ Possessing rights was not the only complicating issue, for their nature (whether established by usage or charter), and their sometimes uncertain geographical scope, could make the handling of forfeiture problematic. Roughly half the almoner suits at Star Chamber for the north of England and Wales revolved around disputes between rival franchisees over title. In his early seventeenth-century treatise, William Hudson recognized that one function of Star Chamber was to enforce the almoner’s rights, but another was to adjudicate on the titles of any subject who claimed forfeitures by royal patent.²⁹⁸ For example, a case of 1553 (Cox v. Allington), contains the claim that Henry VIII had granted a lease of deodands and catalla felonum de se in part of Richmond (Yorks.) to Allington. Edward VI subsequently granted omnia catalla felonum de se to Dr Cox, his almoner. The ﬁrst lease expired and Edward VI granted another similar one. Star Chamber upheld the second lease ²⁹⁶ Blackstone, Commentaries, vol. 1, 292 and supplement, wrongly thought otherwise. ²⁹⁷ King’s Bench, Mich. 43 & 44 Eliz., roll 171 (Cornwals case), reported in Cases collect & report per Sr Francis Moore Chevalier, Serjeant del Ley (London, 1675), 669–71. Painter, English feudal barony, 115–16. D. R. Hainsworth, Stewards, lords and people: The estate steward and his world in later Stuart England (Cambridge, 1992), 186–7. W. Nelson, Lex maneriorum, or, the law and custom of England relating to manors and lords of manors, their stewards, deputies, tenants and others: viz. of the lords right to deodands, felons goods, waifs, strays, wrecks, and goods of felo de se . . . (London, 1726). MacDonald and Murphy, Sleepless souls, 82–3. ²⁹⁸ Hudson, ‘Star Chamber’, 57.

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of forfeitures in a designated locality, despite the national grant to Cox.²⁹⁹ A decade earlier Nicholas Tempest sued the almoner’s deputies in Yorkshire for the forcible removal of the goods and chattels of Thomas Savell (Saville) of Clifton. Saville drowned himself in the Thames in March 1544, ‘beyng possessed of his owne proper goods & chattels of £40’ within the town and lordship of Wakeﬁeld.³⁰⁰ Tempest’s claim was as farmer and bailiff of the king’s tolls and rights there, by a grant for forty years to Sir Richard Tempest, his late father. In reply, Nicholas, Bishop of Worcester, claimed universal rights to such forfeitures.³⁰¹ The background to this dispute lay in intense and sometimes murderous rivalries between gentry families that convulsed the West Riding during the 1520s and 1530s: what Lord Chancellor Bacon later described as ‘men of turbulent spirits’.³⁰² Sir Richard died in 1537 soon after he fell from royal favour over the Pilgrimage of Grace, and his successors (including Nicholas Tempest) tried to consolidate the jurisdictions they enjoyed against efforts by the crown and other local families (notably the Savilles) to dismantle their power.³⁰³ Wakeﬁeld and Richmond are prominent examples of English and Welsh franchises. The manor of Wakeﬁeld was the largest in England and had a complex relationship with its many sub-manors; the honour of Richmond had 440 dependent manors in Yorkshire and 10 other English counties.³⁰⁴ Honours (large lordships centring on castles) and multi-manorial vills tended not to be compact geographical units, but dispersed entities, where the geographical, mental, and legal map of rights was complex, where tenants might hold from multiple lords, and where outside intervention in dispute settlement was more likely to be required.³⁰⁵ The apparent simplicity of a jurisdiction on the ground, recorded in a charter, or one in action, recorded as court proceedings on paper, ²⁹⁹ Ibid., 57–8. Then and later this area was a fertile ground for jurisdictional conﬂict. NA STAC 3/6/74. STAC 8/1/25. ³⁰⁰ NA STAC 2/17/123. ³⁰¹ NA STAC 2/17/123. W. Bently, Halifax, and its gibbet-law placed in a true light (London, 1708). ³⁰² Quoted in G. C. F. Forster, ‘Faction and county government in early Stuart Yorkshire’, NH 11 (1976), 70. ³⁰³ R. W. Hoyle, ‘The fortunes of the Tempest family of Bracewell and Bowling in the sixteenth century’, Yorkshire Archaeological Journal 74 (2002), 169–89. R. R. Reid, The King’s council in the north (London, 1921), 96. For example W. Brown (ed.), Yorkshire Star Chamber proceedings, vol. I (Leeds, 1909), 189–92. H. B. McCall (ed.), Yorkshire Star Chamber proceedings, vol. II (Leeds, 1911), 46–8, 63–7, 75. W. Brown (ed.), Yorkshire Star Chamber proceedings, vol. III (Leeds, 1914), 10–12, 104–6, 113–14, 114–117. NA STAC 2/1/110. STAC 2/17/123. Guy, Cardinal’s court, 121. ³⁰⁴ M. O’Regan, The medieval manor court of Wakeﬁeld (Leeds, 1994). Loades, Tudor government, 81–2. Brooks, Law, politics and society, 245–6, 252–3. C. M. Newman, ‘Local court administration within the liberty of Allertonshire, 1470–1540’, Archives 22 (1995), 13–24. K. J. Kesslering, ‘ ‘‘Berwick is our England’’: Local and national identities in an Elizabethan border town’, in Woolf and Jones (eds), Local identities, 92–112. ³⁰⁵ MacQueen, Common law, 41–2. B. M. S. Campbell, ‘The land’, in Horrox and Ormrod (eds), Social history of England, 209.

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belies its cognitive complexity for those who used it. Roughly half the towns, villages, and hamlets of Yorkshire listed in a detailed guidebook of 1792 were located within liberties.³⁰⁶ The prevalence of isolated fees, tangled and competing jurisdictions, and layers of dominion or lordship may explain why Yorkshire was disproportionately represented among self-killings reported in late medieval coroners’ rolls. With 135 out of 718 suicides, the county had three times as many as the next equal with 43 each (Lincolnshire and Northamptonshire).³⁰⁷ The jurisdictional patchwork that comprised courts and government in the north of England was further complicated by the forfeiture for treason of sometimes huge estates at different points during the sixteenth century and their re-granting with different rights thereafter.³⁰⁸ Fragmented, competing, or overlapping jurisdiction was a very English (and Welsh) problem. In Scotland prior to 1748 lords with an appropriate franchise could command escheated goods regardless of where they were located, provided the forfeited person normally lived in their jurisdiction. In Scotland, justice was conceived personally (the owner or debtor and his residence), rather than territorially as it was in England. Around 1700 an interested party (probably the lord of an English manor) sought legal opinion on just this point. ‘A Felon of himselfe leaves an Estate in moneys which is in the hands of severall men that live in severall parishes . . . Whether shall the Lord of the place where the Felony was committed claim the moneys and Goods of the Felons that are in the hands of men in another parishe that belongs to another Lord[?]’. To the barrister offering the opinion, the bonds or securities within the royalty where the offence was committed fell to the lord. However, he had no claim to money or goods in another royalty.³⁰⁹ Many local and regional courts worked in the same way. For example, the Exchequer of Chester’s jurisdiction was legitimate only if the matter in dispute and the residence of the parties was within the county palatine.³¹⁰ Similarly, an executor dealing with property in more than one archdeaconry was supposed to go to a diocesan court, in more than one diocese to one of two provincial courts.³¹¹ The geography of jurisdictions explains the social composition of the suicides the almoner handled. In theory he could sue people suspected of withholding the goods of felones de se or deodands ‘if it be but for the value of twelve-pence’, but he usually dealt with richer suicides.³¹² Proﬁt may have been a motive, but small debts were easier to handle in local courts. At the same time the almoner possessed ³⁰⁶ An alphabetical index of all the towns, villages, hamlets, &c. in the county of York . . . (York, 1792). K. Stringer, ‘States, liberties and communities in medieval Britain and Ireland (c.1100–1400)’, in Prestwich (ed.), Liberties and identities, 5–36. ³⁰⁷ Butler, ‘Degrees of culpability’, 267. There may have been different record keeping in Yorkshire. R. F. Hunnisett, ‘The medieval coroners’ rolls’, AJLH 3 (1959), 95–124. Murray, Suicide, vol. 2, 80. ³⁰⁸ CRO D/LEC 265, no. 506. ³⁰⁹ Nottinghamshire RO DD/4P/78/30. ³¹⁰ Jones, ‘Exchequer of Chester’, 150–1. ³¹¹ Outhwaite, English ecclesiastical courts, 7, 38. ³¹² Hudson, ‘Star Chamber’, 137.

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a national grant to collect goods, chattels, and debts of suicides ‘wheresoever they shoulde be founde’, where all other franchises were speciﬁc to a delimited borough or territorial lordship. While some people had very localized economic areas, richer people left a debt and credit ‘footprint’ that covered many parishes or even counties. Their complex economic lives required more ordering and they were also the sorts of people most inclined to use central courts to settle their disputes.³¹³ Someone with geographically extensive networks was more likely to need direction from a national franchisee, but he or she was also more likely to be touched by local lords. Being aware of the spatial dimensions to law and lordship helps resolve other misunderstood aspects of suicide. One is why the sums returned to King’s Bench were so low, for half of all inquisitions into self-murder found that the deceased possessed no goods, and two-thirds of those with assets involved movables worth less than £5; less than a quarter of goods reported to King’s Bench between 1660 and 1714 were worth £1 or more.³¹⁴ The reason is that coroners’ juries were only expected to state assets visible to them within the jurisdiction where a suicide died, the location being vital to any claim.³¹⁵ It is not that coroners’ juries were being dense, dissimulatory, or deliberately deﬁant: they were simply doing what was required. Just as their prime duty was to view a body, they had to see assets. For example, an inquest at Bishop Auckland on 27 April 1611 found that Isabel Robinson had been the cause of her own death. ‘And for the Goddes [goods] we can ﬁnd none by no evidenc that we can ﬁnd but the close [clothes] uppon hir at the tyme of the vewe of hir bodye’.³¹⁶ The reason it sometimes became clear that a suicide had more resources was not that a government ofﬁcial or nominee had cut through a knot of deceit, but that he had asked a different question. Following the joint suicide of brothers John and Lancelot Younghusband in Northumberland in 1818, a coroner’s jury valued Lancelot’s goods at £75 17s 6d, John’s at £2 4s 6d (detailing only his household furnishing).³¹⁷ However, subsequent inventories compiled by writ of King’s Bench and presided over by the county Sheriff showed Lancelot was worth £2,433 5s 0d if his other assets like bonds were taken into account and John £1,095 9s 6d.³¹⁸ This was the forfeitable universe of assets, not what was found by the inquest; in his day, the royal almoner was concerned to ensure that all were declared for settlement, not just what was ³¹³ A Privy Seal grant was the best way to deal with property in more than one kingdom. NA SP 38/14 (21 May 1628). ³¹⁴ MacDonald and Murphy, Sleepless souls, 26–7. Murray, Suicide, vol. 1, 386–90, ﬁnds for medieval England that more than half were poor or destitute. ³¹⁵ Hunnisett, Medieval coroner, 31. MacDonald and Murphy, Sleepless souls, 26–7. Because of youth and poverty or the law of coverture, living women asked by courts about their worth might come out with similar phrases. A. Shepard, ‘Poverty, labour and the language of social description in early modern England’, P&P 201 (2008), 61, 74–7. ³¹⁶ DUA CCB B/218/4/21. ³¹⁷ NA KB11/76 (Trinity 59 Geo. III), cases 21 and 22. ³¹⁸ NA KB11/76 (Mich. 60 Geo. III), cases 74 and 75. TS 17/1245.

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stated by the inquest, whereas a local franchisee could only claim what was in his jurisdiction.³¹⁹ Many franchisees had charters showing their rights, but the assumption of forfeitures by lords had been widely tolerated by kings during the Middle Ages since none could rule without a measure of devolved power.³²⁰ As well as ad hoc interventions, notably at York in 1499, Henry VII and VIII used quo warranto proceedings to test the basis of rights.³²¹ These writs were not designed to remove franchisal jurisdictions, but to try them and possibly tidy them up. Similarly 27 Hen. VIII c. 24 did not abolish jurisdictional franchises, but insisted that justice should always be in the king’s name; it removed the power of pardon from the bishops of Durham and the Welsh marcher lords.³²² Maverick franchises again came into focus during James I’s reign because the crown was losing revenue through failure to compound for the assumed rights, and it pursued unlicensed franchises more actively with repeated rounds of writs of quo warranto.³²³ A further cycle followed after the Restoration, with some lords who claimed entitlement counter-suing to pursue their interest.³²⁴ In practice, lords who wanted assumed rights regularized had to buy a grant from commissioners, and those who refused were subject to quo warranto proceedings.³²⁵ As with its Tudor and earlier equivalent, Stuart quo warranto was meant to uncover abuse of privilege, not to remove it outright, and the loss of rights was seldom great. Indeed, franchises endured and rights were even renewed. For example, all the crown leases of the hundred of Wirral (Cheshire) between 1596 and 1820 contain a reference to the goods of felons of themselves.³²⁶ Franchisees’ privileges were buttressed by an act of 1693 (4 & 5 W. & M. c. 22) which allowed claimants to a suicide’s estate to compound directly without ﬁling a suit at King’s Bench, provided they had enrolled their charters with that court.³²⁷ ³¹⁹ Other franchisees also used more rigorous inventorying. Canterbury Cathedral Archives DCc/ChAnt/G/172. T. Smith, De republica anglorum, a discourse on the wommonwealth of England ed. L. Aston (Cambridge, 1906), 102. ³²⁰ Brown, Governance of late medieval England, 113. ³²¹ R. B. Dobson (ed.), York city chamberlains’ account rolls, 1396–1500 (Gateshead, 1980), 198. A. Raine (ed.), York civic records, vol. II (Wakeﬁeld, 1941), 139–41. L. Attreed, ‘Arbitration and the growth of urban liberties in late medieval England’, JBS 31 (1992), 223–5. ³²² Swanson, Church and society, 136–9. K. Kesselring, ‘Abjuration and its demise: The changing face of royal justice in the Tudor period’, Canadian Journal of History 34 (1999), 358n. Sunderland, Tudor Darlington, vol. 1, 23, suggests that the Bishop of Durham still received a fee for pardons after the Northern Rising of 1569. ³²³ HL Ellesmere 2577. ³²⁴ NA E 134/20Chas2/Mich16. 1 Wms. Saund. 269, 273 (Rex v. Sutton). NA E 134/21Chas2/ Mich20. ³²⁵ HL Ellesmere 2577. ³²⁶ R. Stewart-Brown, The wapentake of Wirral: A history of the royal franchise of the hundred and hundred court of Wirral in Cheshire (Liverpool, 1907), 180, 182, 185, 192, 200. ³²⁷ C. Patterson, ‘Quo warranto and borough corporations in early Stuart England: Royal prerogative and local privileges in the central courts’, EHR 120 (2005), 906. Halliday, Partisan politics, 162–3.

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Carrying on the spirit of 27 Hen. VI c. 9, that a franchise recorded in any royal court is sufﬁcient, this tidied up procedure and made enrolment of title simpler and cheaper. Those so enrolled were no longer ‘compelled to plead the same to any Inquisition returned by any Coroner’, thus facilitating claims by registered charter-holders. As well as simplifying, the act dealt once and for all with the problem of rights allowed, or unilaterally assumed, by monarchs since the Middle Ages, for it put an end to claims by prescription.³²⁸ However, it did not prevent the continuation of disputes between lords who claimed title to the goods of felons of themselves. Establishing rights was not always straightforward, and arbitration could be a quicker and surer way of achieving a satisfactory outcome than formal litigation, both before and after the act. In his account book for October 1691 Sir Daniel Fleming, a prominent landowner and public ﬁgure in Westmorland, recorded that he presented an adjudication at Kendal Quarter Sessions: ‘the Reference between the Earl of Thanet & James Hinde, concerning a Felo de Se, Referred at the last Assises at Appleby unto Lawyer Patten of Pres[t]on & me’.³²⁹ Nor did the 1693 act mark the end of central oversight of inquests, any more than did the abolition of Star Chamber.³³⁰ It is quite wrong to claim that: ‘After 1640 the reporting of suicides to the central government declined and ﬁnally stopped almost altogether.’³³¹ Numbers from the Home Circuit preserved at King’s Bench did indeed decline sharply, but coroners elsewhere continued to send in large numbers of inquest verdicts to Justices in Quarter Sessions and Assizes, and the expectation was that reporting to the centre would persist.³³² Counsel in a disputed inquest from Cumberland in 1751 opined that any coroner should in duty ﬁle a copy of the inquest with King’s Bench, which continued to supervise coroners.³³³ If anything, the standard of reporting went up as coroners, who sought to show that their inquests had been ‘duly held’ under 25 Geo. II c. 29, routinely sent in abstracts of their inquests to JPs with requests for payment of expenses.³³⁴ The records of the Northern Circuit assizes, that covered Northumberland, Yorkshire, Cumberland, and Westmorland, provide abundant evidence that suicide verdicts were reported far into the nineteenth century.³³⁵ Coroners’ inquests were also returned to the Crown Court of the Palatinate of ³²⁸ Foster, A report of some proceedings, 265. Scriven, Treatise on copyholds, 752–3, 761. ³²⁹ B. Tyson, The estate and household accounts of Sir Daniel Fleming of Rydell Hall, Westmorland from 1688–1701 (Kendal, 2001), 137. ACA J/III/1v/1. ³³⁰ MacDonald and Murphy, Sleepless souls, 116–17. ³³¹ Ibid., 243. ³³² Hunnisett, Sussex coroners’ inquests, 1603–1688, xi–xiii. NA E 178/6329. T 1/548/33–4. Cottu, Administration of justice, 118. J. Milhous and R. D. Hume, ‘Eighteenth-century equity lawsuits in the court of Exchequer as a source for historical research’, Historical Research 70 (1997), 231–46. Anderson, Suicide, 15–32. ³³³ CRO D/LEC/CRI/59/1. King’s Bench, Pasch. 13 Will. III (Rex v. Stikley), where a coroner who tried to change a verdict of felo de se by dropping jurors was described by Sir John Holt as ‘a weak silly man’. King’s Bench, Pasch. 1 Anne (Reg. v. Clerk). ³³⁴ ‘Brodrick Report’, 112. ³³⁵ NA ASSI 47/24–39.

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Lancaster, at least until c.1790.³³⁶ Interest in what coroners did persisted, and initiatives to improve monitoring of the investigation of suspicious deaths are mentioned in late eighteenth-century newspapers. From the end of the Middle Ages to the nineteenth century, central oversight co-existed with local franchises.

2 . 9 C O M PE T I N G F R A N C H I S E S , C O N T E S T I N G LO R D S H I P Examples from Yorkshire and Wales involving disputes over franchise rights show the problems that could be created by the interfering energies of competing lordship. However, they also demonstrate the assumptions behind lordly intervention and the dialectic between the expectations of communities and the aspirations of franchisees. While they were ﬂashpoints of conﬂict, these cases illuminate what was shared between almoners, lords, and people. Because of the nature of corporate rights in towns, urban ofﬁcials were subject to the competing claims of elements of their fellow townspeople as well as intervention from the crown or almoner. An accusation of self-seeking made by Lancelot Andrewes in 1607 reveals the legal, administrative, and ethical problems of dual roles. Thomas Wynde, maltster of Richmond (Yorks.), stabbed himself in July 1607—or so the almoner said he was ‘credeblie informed and hopeth to make proofe of’ and that he had goods, chattels and debts ‘to a very great value’, but unspeciﬁed. The defendant was Leonard Lademan, alderman or principal councillor (mayor) and sole coroner for Richmond, who had allegedly tried to deceive the almoner as to the true worth of Wynde ‘as sondry others of his predecessors aldermen & coroners of the said burroughe . . . had done before, thoughe very unlawfully’ and also suppressed the ﬁnding of the inquisition so he could have the goods of the deceased as his ‘privitie’.³³⁷ Richmond’s corporate charter of 1576 did not give it rights of forfeiture, which were carried over from its earlier days as a seigneurial borough. For his part, Lademan accepted Wynde’s suicide but denied wrongdoing and, in justifying himself, demonstrated both how it was thought local settlements of suicides’ goods should be handled and how opponents in disputes used the same language of equity and responsibility in creating an ideal and practice of community. Lademan asserted that, by virtue of his appointment by Queen Elizabeth, he had held an inquest on Wynde, which found he killed himself. This verdict he routinely sent in to the assize court. The jury did not know if Wynde possessed any goods outside the liberty of Richmond, but assumed that goods within it (amounting to £250) belonged to the town, not the crown. Lademan’s answer to question seven of the interrogatories is particularly illuminating. He said he had ³³⁶ NA PL28/1–4. ³³⁷ NA STAC 8/1/25. The alderman of Richmond was also a JP. See also Nottingham records, vol. 4, 330, 352. Jones, ‘Exchequer of Chester’, 158.

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disbursed the money ‘in favoure of the said Wynde’s customers, many of them being poore and most of them inhabitants within the said borough, and for that he [Wynde] had gained much by them, it was by common consent agreed and thought ﬁtt that such of them as were indebted unto him for malte or otherwise upon [simple] contract and not upon bill should be called in and favourably dealt with’ (let off all, or part of, their debt). If he is to be believed, Lademan sounded out local opinion, which supported a solution that he presented as just to Richmond’s inhabitants. Answerable to both crown and governors of Richmond (the twelve co-opted capital burgesses who served for life), he sought collateral for his actions by using the vocabulary of community.³³⁸ Lademan denied he had taken Wynde’s assets for private gain, but had ‘by common consent bestowed and imployed some parte towardes the reliefe of the creditors and poore friendes of the said deceased and the residue to and for the common proﬁtt and behoof’ of the inhabitants of Richmond; the sum compounded for came to no more than 40 merks; Wynde’s account books were in the keeping of the town clerk and available for inspection. The king’s Almoner v. Lademan demonstrates that there were two (often very different) sides to any Star Chamber case, but that on important points they spoke the same language. The unusual amount of detail in the charge further suggests that someone in Richmond was unhappy about the way Lademan had acted (or was using this allegation against him for some other reason), and that local initiatives were behind the almoner’s proceedings. The reference to ‘privitie’ points to antecedent issues of ideology: here the tension within borough ofﬁce between private right and public responsibility, secrecy, and openness. Differences of opinion about the handling of Wynde’s assets devolved on legal and political principle rather than merely alleged corruption for, like all franchises, corporations were ‘private bodies with public functions’.³³⁹ If Lademan’s statement is true, it shows a local franchise holder dealing in a ﬂexible and charitable way with the ramiﬁcations of suicide, using privilege to promote good governance. If it is untrue it still bound him and other civic governors to ideals of mutuality, transparency, agreement, and civility or honestas within the whole urban community, all the way from magistrates to ‘creditors and poore friendes’ and ultimately to ‘the common proﬁtt’.³⁴⁰ The dispute was not really about who should have the goods or even what was to be done with them, but over who was entitled to perform necessary adjustments to further agreed understandings of good government, order, and ‘common weal’. Allegations of oppressive or ‘heavy’ lordship are also one aspect of a complicated Welsh case from the time of James I. It arose over the goods of Howell David, ³³⁸ R. Fieldhouse and B. Jennings, A history of Richmond and Swaledale (London, 1978), 432. ³³⁹ Halliday, Partisan politics, 41–2, 68–9, 140–2. ³⁴⁰ P. Withington, ‘Public discourse, corporate citizenship, and state formation in early modern England’, AHR 112 (2007), 1026–8.

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yeoman of Llanharan (Glam.), and involved his widow, her neighbours, the almoner, the attorney-general, and a franchised lord. In one suit, Lancelot Andrewes accused Ievan Treherne and others who had served on the coroner’s inquest of withholding assets. Treherne was bailiff of the countess of Pembroke, lady of the manor of Ruthin where David had killed himself, and thus allegedly a legitimate holder of the goods, which the other defendants said they had simply inventoried. A second prosecution by the attorney-general on the law-and-order issue was more probing and threw up three alignments. Authorized by the countess, Treherne claimed to have acted ‘with the full consent and good likinge of lleyky William’, David’s widow, when ‘in quiett and peaceable manner’ he took possession of and inventoried his house, lands, and goods. He said the widow asked him not to remove the goods, and offered to give surety to surrender them whenever required. He agreed and gave the barn key to co-defendant Grifﬁth Jenkin, with instructions to release as much corn as needed to feed family and livestock. The attorney-general’s bill claims that on the same day as many as forty men broke into and ransacked the house and barn. Those involved claimed that the widow herself asked them to seize the goods as Treherne had denied her and her family ‘so much in ordinary foode as would reasonably serve to relieve them in their present want & penury’. These defendants presented themselves as ‘neere neighbors to the sayd poore distressed widdowe [who] came to comfort her in her heavines’ and were ready to assist deputy almoner James Green, who had since taken the goods into custody pending a decision on who was entitled to administer the forfeiture.³⁴¹ Bailiff, deputy almoner, widow, and neighbours all claimed to be doing ‘the right thing’ and each talked the same language of legitimation based on fairness, charity, and responsibility. The countess’ bailiff acted to secure assets, while the widow mobilized local opinion to frustrate him. The deputy almoner tried to resolve the dispute, and the alleged rioters professed themselves to be behind him, suggesting they hoped he would offer a better resolution for the widow than her lord. Tempting as it is to believe that without lordly intervention matters would have been resolved peacefully and equitably, there is no way of telling whether the bailiff was being heavy-handed or simply realistic about what might happen if he did not secure the goods; nor do we know what other claims there were on David’s assets. The assertion by the neighbours that they expected better of the almoner’s deputy than the bailiff may be a fabrication. Whatever the truth, their statement bound them to support his intervention. At the heart of these jurisdictional disputes was not the expropriation by almoners of the hapless families of suicides, but an effort to discipline faction and curb the alleged misuse of power by local patrons and ofﬁcials.³⁴² They ³⁴¹ NA STAC 8/3/29. STAC 8/24/10. The lordship of Ruthin saw several other suits. STAC 5/A4/30. STAC 5/A15/22. STAC 8/1/34. ³⁴² Heal and Holmes, Gentry, 3–6. Brooks, Law, politics and society, 278–85. The cases resemble medieval demarcation disputes between coroners and other ofﬁcials. Hunnisett, Medieval coroner,

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therefore ﬁt into a pattern of Star Chamber processes identiﬁed many years ago by Barnes, Skelton, Neale, and Hassell Smith. Almoners intervened in disruptive local conﬂicts that arose from the alleged pursuit of power and advantage among competing or over-assertive lords.³⁴³ Elite ambitions and conﬂicts could impinge upon the middling and lower sorts, who were faced with difﬁcult choices between competing advice, orders, or even threats from actual or would-be patrons. Resolving these was another part of the almoner’s role as a promoter of charity, equity, and harmony.

2 . 1 0 U R B A N C O R P O R AT I O N S A S C O L L E C T I V E LO R D S The examples in the previous section show competition between sources of authority, but they also elicited statements about uncontroversial values. They illuminate what was expected when handling forfeiture and also hint at assumed priorities within asset distribution. Because almoner suits in central courts are mainly about identifying goods and curbing alleged abuses in their distribution, it is seldom possible to see what happened to a suicide’s estate and thus to be clear about whether the practical impact of intervention was beneﬁcial or otherwise. King’s Bench inquest returns should have speciﬁed who had forfeited goods, but this meant custody, not title or claim. The almoner’s task was to create a structure where others implemented an equitable and honest solution. In contrast, borough records and estate or manorial documents allow closer analysis of how people thought forfeiture should be handled and how it actually was, sometimes down to the minutiae of gathering and disbursing speciﬁc assets. These sources support the contention that local franchisees tried to use the inequalities of power within relations of lordship for positive ends, their authority constrained by practical accountability to clients or community as well as crown and ‘common weal’. An example from the city of York reveals the practical limits to the freedom of action of urban governors created by the multiple moral, as well as titular, claims to a suicide’s goods. The civic records for March 1539 state that widow Katherine Dawson ‘of layte and of a devyllishe mynde and entent dyd laitly wilfully and felonsly slay and murder herself ’.³⁴⁴ The city council discussed which of her goods should be forfeited, as she was executor of her late husband’s will. They decided that the children should have their portions ‘accordyng to good concyens’. Then the parte of the sayd Kateren and also all suche goods and cattells as the sayd Thomas her layte husbond bequethyd her and the goods of her chambre, apperell and jewells, whiche esp. 142–4. In 1517 King’s Bench heard a dispute between the Prior of Newburgh and the Abbot of Whitby over coronial jurisdiction in part of the North Riding. NA KB9/471, mm. 103, 97, 66, 94, 93, 52. KB9/473, 49, 50. KB29/149, 9d. KB29/154, 40. KB27/1060, 2d. KB27/1065, 4. ³⁴³ Barnes, ‘Star chamber and criminal law’, 325. Barnes, ‘Due process’, 338–9. ³⁴⁴ A. Raine (ed.), York civic records, vol. IV (Wakeﬁeld, 1945), 39.

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mens wifs of this City clamys by the custome of this City to have after the deyth of ther husbands shall remayne to the Kyng and this City accordyng to the auncyent precydens of the sayd City, provyded alweys that my Lorde Mayer shall tayke an indifferent order with Thomas Strynger of Malton an other executour of the sayd testament for the payment of the detts of the said Thomas Dawson [merchant] so that this City shall in no wyse be distreyned by the sayd Strynger.³⁴⁵

In June the council demanded a bequest or ‘dymysyn of sylver and double gylt’ belonging to Katherine being held by an alderman, ‘soo that the Commons may have ther ryght therin’.³⁴⁶ At work here were the crown charter to the city allowing it forfeitures, regional ecclesiastical law, and local social and political relationships. Until 1693 in the Province of York (and also London and Wales), it was normal to reserve a third of a dead man’s bequeathed goods for the widow as her legitim and a third for the children—as had been the practice across medieval England, where intestate succession involved allocating a reasonable share of movables to surviving dependants; if only a widow or children remained the division was 50:50.³⁴⁷ There were competing expectations as well as accepted entitlements in this case. The reference to ‘the Commons’ had particular resonance, for the commonalty of York was an important political lobby in the late ﬁfteenth and early sixteenth century. They saw themselves opposed to the ruling merchant oligarchy, arguing in 1475 that ‘as we be all one body corporate, we think that we be all in like privileged of the commonalty’.³⁴⁸ Behind the notion of communitas, which bound together the city fathers with Christian believers into a civic body, which it was the duty of magistrates everywhere to promote and enforce, there were potentially divisive forces to be reconciled, marked by rioting in York in 1494. Yet the case is reminiscent of Almoner v. Lademan in suggesting a more comprehensive version of community where magistrates tried to resolve ethical and ﬁnancial issues after a sudden death in the interests of equity and harmony, protecting civic privilege by displays of good governance over all those with a stake in the town.³⁴⁹ Both cases further conﬁrm that ‘civic inequalities were pivotal rather than contradictory to the practice of community’.³⁵⁰ An example from Restoration Chester suggests an effort to fulﬁl ideals of community by an individual act of charity. In October 1663 the City of Chester Assembly ³⁴⁵ Idem. ³⁴⁶ Ibid., 52. ³⁴⁷ 4 W. & M. c. 2. See also 2 & 3 Ann. c. 5. 2 Wms. Saund. 67 n [x]. Houlbrooke, Death, 83. Fleming, Family and household, 85. Helmholz, ‘Legitim’, 667–8, dates the end of the custom to 1679. ³⁴⁸ Quoted in R. W. Hoyle, ‘Petitioning as popular politics in early sixteenth-century England’, Historical Research 75 (2002), 368. C. Rawcliffe, ‘ ‘‘That kindness should be cherished more, and discord driven out’’: The settlement of commercial disputes by arbitration in later medieval England’, in Kermode (ed.), Enterprise and individuals, 105–6. ³⁴⁹ J. Watts, ‘Public or plebs: The changing meaning of ‘the commons’, 1381–1549’, in Pryce and Watts (eds), Power and identity, 242–60. ³⁵⁰ P. Withington, ‘Citizens, community and political culture in Restoration England’, in Shepard and Withington (eds), Communities, 137.

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recorded viewing two bonds from 1634 and 1640, owing a total of £160 to William Willcock. The remaining sums due on these bonds, with all his goods and chattels, were forfeit to the city by his death ‘ut felo de se’. At the request of Thomas Willcock, alderman, the bonds were put in suit by the city treasurers at his expense, and the money recovered used for the beneﬁt of Elizabeth Haslow, his sister, ‘being poor and indigent’.³⁵¹ Alderman Willcock offered at his own expense to perform a good deed, albeit for a relation (perhaps a beneﬁciary of William’s estate had he died normally). Chester had an asset, but delegating responsibility for its collection was understandable because it was rarely straightforward to administer any dead person’s estate.³⁵² Beneﬁciaries of forfeitures might ﬁnd it troublesome to collect their ‘windfall’, which is why it was administratively easier to compound for the assets.³⁵³ For reasons of kinship and poverty, Willcock’s solution was probably uncontroversial and it continued a tradition of hypothecating exactions to local, visible, and agreeable projects.³⁵⁴ In other towns too, such funds were dedicated to charitable uses, bolstering the normative community as well as providing practical interventions. A much later case from Berwick-upon-Tweed shows that forfeiture meant tidying up and reconstructing. A widow called Mary Mather took a large dose of laudanum on 31 March 1817. Found felo de se, her goods were forfeited to the corporation, and the sum of 3/6 appears as a credit in the town’s accounts.³⁵⁵ The payment was not a windfall, for Mary was a debtor to the town and to private individuals. Shortly before her death she had applied to the town treasurer for her ‘stint money’, showing she was a pensioner (as a burgess’s widow), but had been refused as she had already spent it on account. Mary owed her landlady for arrears of room rent and a shopkeeper for a pair of shoes bought on credit the day before she died.³⁵⁶ The treasurer’s job was to settle the debts of one of the town’s pensioners, repairing rather than rending the community’s web of economic relations. Aware that seeing the good in human nature might invite charges of naivety, historians may assume that corporations or ofﬁcials simply grabbed whatever they could for the use of individuals or for oligarchic junketing. They may see the language of godliness and community as empty words: what Engels called a ‘halo of sanctity’ to legitimate exploitation.³⁵⁷ Borough administrations ³⁵¹ Cheshire and Chester Archives ZA/F/38c/17. ³⁵² In the mid-seventeenth-century Southampton’s magistrates farmed out collection of a suicide’s assets for a fee of one third. Southampton Archives SC4/6/297/1. SC/TC box 1/87. SC4/6/297. A third may seem high, but the costs of collecting all the income from the Duchy of Lancaster came to 60%. Hoyle, ‘Crown’s estate’, 34. ³⁵³ See, for example, M. Bateson (ed.), Records of the borough of Leicester . . . 1509–1603 (Cambridge, 1905), 335. ³⁵⁴ Wunderli, London church courts, 115. Helmholz, Canon law, 470. ³⁵⁵ BRO Borough Archives H2/90, p. 9. ³⁵⁶ BA 484 (5 April 1817). ³⁵⁷ Quoted in S. Rigby, ‘Approaches to pre-industrial social structure’, in J. Denton (ed.), Orders and hierarchies in late medieval and renaissance Europe (London, 1999), 7.

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might indeed be in the hands of corporate cliques, who sought to ﬁll their own pockets. Described by an historian as ‘divided . . . corrupt, contemptuous of those it ruled, interfering and overbearing’, the governing body of Beverley ordered in 1672 ‘that the goods of John Fryer, who lately died within this town and was upon inquisition found felo de se by taking poison, be appraised and sold for the Corporation’s use’.³⁵⁸ Yet recent research has placed a more balanced interpretation on both the power of urban oligarchy and its political and ﬁnancial morality, stressing that structural disparities in power did not necessarily mean ideological divisions.³⁵⁹ Phil Withington writes of late seventeenth-century York that ‘the normative culture of civic community was not so much oligarchy as civic republicanism, a culture which was predicated on power, inequality and differentiation but which also valued reciprocity, obligation and responsibility’.³⁶⁰ Withington argues for the post-Restoration survival of civic awareness and duty, ﬁrmly established by Robert Tittler for the sixteenth century, yet felt by Peter Borsay to fade in the age of Enlightenment.³⁶¹ Indeed examples of arrogance, bullying, and greed should not automatically be regarded as typical of the relationships between oligarchies and communities, ofﬁcials and people. As Tittler argues, oligarchic rule was not necessarily a ‘Bad Thing’. Towns could not be governed without strong rulers, and such men were usually the wealthiest, best connected, and most reputable citizens. Naked self-service was an unlikely way to secure loyalty and obedience from a borough’s independently minded citizens, for whom shared ideals of corporate ‘community’ and civic humanist practices of participation and service still meant a great deal.³⁶² Where it can be followed in civic records, the corporate handling of suicide forfeitures ﬁts better a model of responsibility and service than it does one of expropriation and greed. In cases where the right of forfeiture lay with a body like a borough corporation, which represented the community, held land for it, collected its rates and was made up of its representatives (who were usually gild or ratepaying members), it is indeed hard to discern where exactly to locate the ‘tensions that were generated by the contradictory interests of local communities and the monarchy and of humble ratepayers and privileged landlords’.³⁶³ Instead, corporations tried to deal with suicides in a way which recognized their responsibilities as well as their rights, ³⁵⁸ D. Lamburn, ‘Politics and religion in early modern Beverley’, in P. Collinson and J. Craig (eds), The reformation in English towns, 1500–1640 (London, 1998), 78. Poulson, Beverlac, 154. ³⁵⁹ I. A. Archer, ‘Politics and government, 1540–1700’, in P. Clark (ed.), The Cambridge urban history of Britain volume II, 1540–1840 (Cambridge, 2000), 241–6. ³⁶⁰ Withington, ‘Citizens’, 136. ³⁶¹ Ibid., 139. P. Borsay, The English urban renaissance: Culture and society in the provincial town, 1660–1770 (Oxford, 1989). ³⁶² R. Tittler, Townspeople and nation: English urban experiences, 1540–1640 (Stanford, 2001), 29–31. R. Tittler, The reformation and the towns in England: Politics and political culture, c.1540–1640 (Oxford, 1998), 13–17, 141–5, 195–207. ³⁶³ MacDonald and Murphy, Sleepless souls, 114.

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and which weighed up the needs of family, creditors, and poor within their jurisdiction. Standards of probity in early modern public life may seem scandalously low to modern observers and were increasingly so perceived by contemporaries: bribery, solicitation, and intimidation were enduring criticisms of all judicial process.³⁶⁴ Complaints about the incompetence and corruption of coroners are not far to seek in the sixteenth and seventeenth century either, and Donna Andrew has found evidence that people expected to inﬂuence through an appropriate ‘donation’.³⁶⁵ Corruption no doubt existed in some cases, if by this is understood the pursuit of selﬁsh interest by an ofﬁcial over the common or public good: what contemporaries called ‘usurpation’.³⁶⁶ Yet giving gifts was a normal courtesy; most ofﬁcials were not well paid—if paid at all—and it was probably difﬁcult to make money out of holding town, or most other types of ofﬁce.³⁶⁷ Fuzziness about the dividing line between gifts and payments was matched by potentially confusing variations in local government. The way coroners were remunerated varied according to where they served, towns differing from counties and general from special coroners. Hunnisett states that it was illegal for coroners to accept payment for any except inquests on deaths found to be murder between 1487 and 1752 (25 Geo. II c. 29); those charging additional fees could be subject to prosecution for extortion, but some still did so.³⁶⁸ However, some urban coroners were routinely remunerated. Carlisle Chamberlain’s Accounts contain instances of payments, of which the earliest surviving is 1619 when ‘extraordneryes’ include 12d ‘to one that went to hendersons Frends after he was founde to hange him selff in the low chamber’, 13/4 ‘to the corroners for ther Fee of inquire aboute hendersons deathe’, and 6/8 ‘for drawing up the corroners Inquesicions’.³⁶⁹ ³⁶⁴ Walker, ‘Order and law’, 103. E. Powell, ‘Law and justice’, in Horrox (ed.), Fifteenth-century attitudes, 34, 36–41. Hurstﬁeld, Queen’s wards, 52–7. N. Landau, ‘The trading justice’s trade’, in N. Landau (ed.), Law, crime and English society, 1660–1830 (Cambridge, 2002), 46–70. D. Hay, ‘Dread of the crown ofﬁce: The English magistracy and King’s Bench, 1740–1800’, in Ibid., 19–45. J. Bath, ‘County keeping, corruption, and the courts in the early-eighteenth-century Borders: The feud of William Charlton and William Lowes’, NH 40 (2003), 113–27. W. R. Prest, ‘Judicial corruption in early modern England’, P&P 133 (1991), 67–95. C. Wheatly, A rational illustration of the Book of Common Prayer (London, 1720), 469–70. ³⁶⁵ Personal communication. M. Gaskill, Crime and mentalities in early modern England (Cambridge, 2000), 246–8. NA STAC 3/6/7. ³⁶⁶ J. Hurstﬁeld, Freedom, corruption and government in Elizabethan England (London, 1973). Peck, Court patronage, 5–7. Withington, ‘Citizens’, 139. Hunnisett, East Sussex coroners’ inquests, xli–xlvi. ³⁶⁷ R. Britnell, ‘Town life’, in Horrox and Ormrod (eds), Social history of England, 158. S. E. Whyman, Sociability and power in late-Stuart England: The cultural world of the Verneys, 1660–1720 (Oxford, 1999), 23–33. ³⁶⁸ Hunnisett (ed.), East Sussex coroners’ records, 1688–1838, xiii. Jacob, Law-dictionary, ‘coroner’. Coroners sometimes claimed customary payments, including for burial warrants. Centre for Buckinghamshire Studies Q/AM/9/1 (1822). ³⁶⁹ CRO Ca4/1 Chamberlain’s Accounts, 1603–19.

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Franchisal or special coroners could be different again. For example, Talbot Bowes was charged with fraud and neglect of ofﬁce for allegedly trying to get a potentially forfeitable lease for himself instead of pursuing the crown’s right to it. The lease belonged to Francis Hunter, yeoman of Barnard Castle, who hanged himself in 1615. Eleven years before his death, Hunter had assigned to Edward Emmerson of London, a brewer and kinsman of his, a lease granted by Sir William Evers of Stoke, Co. Durham, as surety for a loan of £100, which he never paid back.³⁷⁰ When Hunter killed himself, Bowes tried to get the lease from Emmerson, who refused, showing him the title he had to it. Bowes accepted this, since a pre-mortem gift or grant of this kind done in due form was perfectly legal.³⁷¹ However, he asked Emmerson to sell him his interest in the lease. We only have Emmerson’s word for this, but it would appear that Bowes was guilty of a simple abuse of his ofﬁce—which may explain why he is described in the suit as ‘late coroner’. Yet this may not be straightforward corruption, for Bowes was also high steward of the lordship of Barnard Castle and may have seen his role differently from that of a run-of-the-mill crownappointed coroner, as Leonard Lademan had done at Richmond—which is where Bowes came from.³⁷² Jurisdictional uncertainties also played a part as the lordship had once been disputed between the crown and the bishop of Durham.³⁷³

2 . 1 1 T E R R I TO R I A L LO R D S A N D T H E P RO C E S S OF FORFEITURE

2.11a Deodands and Strict Liability: The Legal and Lordly Signiﬁcance of Forfeiture In the countryside the equivalent relationship to that between magistrates and citizens linked lord and tenant within territorial jurisdictions that possessed rights of forfeiture: hundreds, honours, and manors, as well as seigneurial or manorial boroughs. How did lords with charters or prescriptive claims exercise their power over goods and chattels due to them? Were they as circumspect and constructive as borough corporations? Before considering the way territorial lords dealt with forfeitures of felones de se it is worth examining how they handled deodands. Those dealt with by the almoner are mentioned in King’s Bench inquest returns, but usually only a note of who had charge of them at the time or whether they had been compounded for, the ultimate destination unknown. In contrast, the ³⁷⁰ NA STAC 8/3/39. DL 41/537. ³⁷¹ See an opinion on a comparable matter from c.1700. Nottinghamshire RO DD/4P/78/30. ³⁷² Corporation of London RO CLA/044/03. ³⁷³ A. J. Pollard, North-eastern England during the Wars of the Roses: Lay society, war and politics, 1450–1500 (Oxford, 1990), 147–9, 319–22. Lapsley, County palatine, 86–8.

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recording of deodands in private estate papers, while intermittent, is usually more illuminating. The objects were often inconsiderable and the sums involved nominal: the end of pursuing and recording them for aristocratic franchisees was to make a point about rights of lordship.³⁷⁴ While franchise holders usually paid for their patents, the goal of proﬁting ﬁnancially from the jurisdiction was complemented by a desire for the ‘positional’ advantage in lordship of having more clients use them to seek protection or advancement.³⁷⁵ In the case of a town, being seen to govern well legitimated both oligarchic and civic privilege. In the case of a territorial lord, being a franchise holder gave a man more power and more patronage as well as the opportunity to make money: ‘ability to command men and exercise high authority without external restriction’.³⁷⁶ As Maitland noted of possession of a view of frankpledge: ‘the pecuniary proﬁt was in the eyes of the lords a small matter when compared with the power that was thus secured them’ to summon their people to account.³⁷⁷ Deodands too were tokens of lordship, with lords collecting minimal but symbolic proﬁts from the Middle Ages onwards.³⁷⁸ Accounting for them was, like all pre-modern accounting, a way of keeping track of rights and obligations: a means of exercising power as much as facilitating the efﬁcient making of money.³⁷⁹ John Bird, the late eighteenth- and early nineteenth-century agent on the marquis of Bute’s estate in south Wales noted that these traditional revenues produced ‘a poor proﬁt, half the sums go in collection’, yet the estate’s ofﬁcials expended more time and effort collecting them than any other dues.³⁸⁰ Collection of deodands was a sporadic but enduring aspect of estate business, most obvious between the mid-eighteenth and the early nineteenth century, when lords generally were re-asserting rights against a background of falling demand for lordly intervention and of requests from customary tenants for enfranchisement of their tenures.³⁸¹ Alnwick estate records contain ﬁles about deodands from this period. While strictly objects or animals that moved independently to cause death, those recorded at Alnwick are mostly portable items used by murderers of ³⁷⁴ For example see ACA DP/D2/1/145. M/I/8 (1716). L/III/1h/2 (1818). J/XII/80 (1837). This is also why some Welsh landlords continued to collect ‘renders’ of hens and eggs into the nineteenth century. G. Morgan, A Welsh house and its family: The Vaughans of Trawsgoed (Llandysul, 1997), 187. ³⁷⁵ Positional goods are those which are scarce and where the scarcity is unlikely to be changed. F. Hirsch, The social limits to growth (Cambridge, Mass., 1976). ³⁷⁶ Dyer, Lords and peasants, 78. ³⁷⁷ Pollock and Maitland, History of English law, vol. 1, 581. ³⁷⁸ P. L. Larson, Conﬂict and compromise in the late medieval countryside: Lords and peasants in Durham, 1349–1400 (London, 2006), 207. ³⁷⁹ D. Oldroyd, ‘Through a glass clearly: management practices on the Bowes family estates, c.1700–70 as revealed by the accounts’, Accounting, Business & Financial History 9 (1999), 175–201. ³⁸⁰ J. Davies, Cardiff and the marquesses of Bute (Cardiff, 1981), 38. ³⁸¹ D. W. Howell, The rural poor in eighteenth-century Wales (Cardiff, 2000), 197–203. CRO D/LEC 265, nos. 542–6.

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themselves. After the death of the Younghusband twins in an apparent suicide pact, where they both had their razors sharpened days before using them to cut their own throats in November 1818, the duke of Northumberland asked counsel whether Alnwick Abbey was part of the manor of Alnwick and ‘what steps should be taken as to the division of the two razors, and of the goods which may be forfeited by the ‘felo de se’ so far as regards the rights of the Duke of Northumberland—And you are requested to advise generally & fully as to what is usual, or ought to be done in this case on the part of the Duke, in order to secure His Grace’s rights now and to maintain them hereafter’.³⁸² Superﬁcially macabre and small-minded, the duke’s interest was in the symbolic importance of the razor-as-deodand to his rights as a lord. His archives contain both another two razors used in suicides (1831 and 1834, the latter with traces of dried blood still on it) and two cords used by a man and a woman to hang themselves.³⁸³ One cord has a velum memorandum from bailiff R. Robson attached to it. ‘This whipping and lash was delivered to me by the constable of Narrowgate ward as a deodand due to the lord of the manor and borough of Alnwick awarded by the coroner’s inquest which sat on the body of Sarah Morass on the 18th day of July 1812, it appearing to be the instrument by which she hung herself the preceeding day.’³⁸⁴ As suggested by his awareness that the Younghusband deodand had to be divided, the duke of Northumberland’s title to forfeitures was in fact weak in at least part of the manor of Alnwick. He had been trying to re-integrate ‘the Abbey’, a portion of the estate recently bought back, but had to drop his claim to administer the Younghusbands’ forfeiture in the months following their deaths. Just before the ﬁnal settlement of the case in August 1819 the duke’s solicitor sought an amicable solution in dealings with the Treasury, possibly because the attorney-general and solicitor-general advised that his employer’s title was defective. The legal ofﬁcers further advised that a trustee be appointed to settle the estate and that the net proceeds be divided among the next of kin, as they had requested and as was duly done. The papers in this case are extensive and a number of individuals spent considerable time and money on it, including the trustee, a local gentleman. Senior counsel concluded: ‘as the parties appear to be very poor we don’t think it will be proper to call upon them for the deposit & costs as the costs of the crown may be deducted when the property is receaved’.³⁸⁵ For the lord, keeping either the object or a record of its forfeiture was a valuable token of a usage that comprised one component of his array of rights. When he married the heiress to the Egremont estates in Cumberland in 1748, Thomas Wyndham refused to become embroiled in local property disputes unless with a social superior, claiming he was ‘ill-qualify’d for petty country contests, few of which are worth the serious thought of an hour, yet custome obliges us to vindicate ³⁸² ACA J/III/1v/1. ³⁸⁴ ACA M/III/2d.

³⁸³ ACA J/IV/8k/2. M/I/35. M/I/36. ³⁸⁵ NA TS 17/1245.

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our claim to rights of no real value’.³⁸⁶ However, he clearly felt the imperative to act, and so did a later earl, petitioned in June 1797 by John Mayson of Portinscale, woollen manufacturer. On 3 April Mayson’s servant had been leading a horse when it kicked one of the earl’s tenants and he died. Mayson expressed his deep sorrow and claimed that, as he lingered, the dying man blamed neither petitioner nor servant, putting the event down to the ‘playfulness’ of the horse. Thus he gently asserted that there was no ‘blame or neglect’. An inquest before Mr Benson, coroner of the honour of Cockermouth, awarded the earl the horse as a deodand, assigning it a value of £10. Admitting it was worth £20, Mayson protested against the award, ‘which if strictly insisted upon’ would cause him great loss. He asked for clemency and offered to pay ‘some small acknowledgement to your Lordship for the same, for the preservation of your Lordship’s right, as your petitioner is informed is frequently done in similar cases’.³⁸⁷ Mayson invited the earl to see the death as an accident, but from the Middle Ages coroners’ inquests had strenuously avoided attributing blame to a person, attaching it instead to the object causing death, and the ascription of responsibility was ‘largely concealed behind the language of causation’.³⁸⁸ Inquests that exacted deodands followed the principle of strict liability for objects or animals that moved to the death of a person, regardless of modern notions of agency, fault, ‘duty of care’, or ‘negligence’. With deodands, the emphasis in law was on blame in the object and loss to the plaintiff (the lord), rather than the wrongful conduct of the defendant or owner, and even in the eighteenth century consideration of personal fault was incidental.³⁸⁹ Mayson tried to excuse himself in various ways, but he knew he could only ask for lordly indulgence. If the treatment of deodands was discretionary, lawyers might still suggest norms. An opinion on forfeiture, offered about a woman who hanged herself in 1688, suggested that the lord should get what the rope was worth. ‘The value of the thing should be inquired after, for it is ﬁtting, that the thing itself, if not of bulk, should be put into the earth with hir.’³⁹⁰ This opinion balanced notions of practical compensation for the wronged lord (the only ‘victim’ suffering tort who could be recompensed) with those of symbolic retribution against the harmful, polluted object—what Blackstone termed ‘an accursed thing’.³⁹¹ It exempliﬁes ³⁸⁶ Quoted in J. M. Rosenheim, The emergence of a ruling order: English landed society, 1650–1750 (London, 1998), 181–2. ³⁸⁷ CRO D/LEC 265, no. 307. ³⁸⁸ Ibbetson, Law of obligations, 59, 90. A. Kiralfy, ‘Custom in medieval English law’, JLH 9 (1988), 36. ³⁸⁹ T. Sutton, ‘The nature of the early law of deodand’, Cambrian Law Review 30 (1999), 9–20. A. Pervukhin, ‘Deodands: A study in the creation of common law rules’, AJLH 47 (2005), 237–56. Ibbetson, Law of obligations, 58–63, 90–4. G. MacCormack, ‘On thing-liability (Sachhaftung) in early law’, Irish Jurist 19 (1984), 322–49. ³⁹⁰ Nottinghamshire RO DD/4P/78/29. ³⁹¹ Ives, Penal methods, 253. Str¨om, Sacral origins, 257–8. D. Thurbin, Crime and punishment: A critical survey of the origins and evolution of the common law (Long Ditton, 1998), 137. Blackstone, Commentaries, vol. 1, 291.

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part of the treatment of instruments of death within a ‘taboo-orenda schema: on the one hand a propitious, specially medically healing effect, and on the other hand a dangerous and sinister power’.³⁹² By association with a person, an object acquires and may transmit a history; burying the instrument of death with a person is a separation ritual. However, early modern owners might be allowed to keep or buy back objects or animals that moved to someone’s death, suggesting that any symbolic taint or danger should not be overstated, unless the lord’s intervention somehow cleansed. Simply seizing the object could make a symbolic statement—the lord removing a polluted instrument from the community—but there was further value in extracting it from the marketplace for instruments of death.³⁹³ In the eighteenth and early nineteenth century the deodand as an object may have been perceived less as a symbolic taint than a cultural embarrassment: what some saw as an example of popular superstition. Lords could use deodands to make a point about their rights without keeping what was exacted, whether object or cash settlement.³⁹⁴ ‘Value’ here lay in demonstrating entitlement rather than in monetary worth. This may help to explain why no ﬁnancially interested party seems to have been concerned by the proposal to abolish deodands in 1846—though some said they would be.³⁹⁵ At the same time, some legal writers like Thomas Williams noted in the 1790s that juries ‘now generally ﬁnd the value as small as possible’—an observation that shows they retained the doctrine of strict liability, even if the sum extracted was reduced.³⁹⁶ Abolition of deodands was not about the receipt of beneﬁt, but about who was being mulcted, by whom, and why.³⁹⁷ Deodands were abolished because they were being used actively in the 1820s, 1830s, and early 1840s as a way of punishing owners perceived to be liable for accidents, notably railway operators. This was how Blackstone had conceived them (penalties for negligence), whereas the point in earlier centuries (and probably even when he wrote) had been the assignment of the object that moved to a person’s death, regardless of who owned it, with the main aim of asserting a lord’s right, and the secondary one of removing a potentially dangerous or disdained object from circulation.³⁹⁸ Because of the low standard of proof required, Georgian juries ³⁹² Str¨om, Sacral origin, 258. Carrier, Gifts and commodities, 25–6. ³⁹³ P. S. Berman, ‘An anthropological approach to modern forfeiture law: The symbolic function of legal actions against objects’, Yale Journal of Law & the Humanities 11 (1999), 20, 38. ³⁹⁴ E. Cawthon, ‘Thomas Wakely and the medical coronership—occupational death and the judicial process’, Medical History 30 (1986), 200–1. ³⁹⁵ Parliamentary debates 3rd series vol. 88, 623–6. ³⁹⁶ T. W. Williams, The whole law relative to the duty and ofﬁce of a justice of the peace 4 vols. (London, 1793–95), vol. 1, 645. ³⁹⁷ E. Cawthon, ‘New life for the deodand: Coroners’ inquests and occupational deaths in England, 1830–46’, AJLH 33 (1989), 137–47. T. Sutton, ‘The deodand and responsibility for death’, JLH 18 (1997), 44–55. Using deodands as ﬁnes may explain their preponderance in NA DURH 3/194, coroners’ returns, 1819–28. CP 2436 (18 June 1821). ³⁹⁸ Evans, Criminal prosecution of animals, 189–90. Blackstone, Commentaries, vol. 1, 291. Blackstone wrote at a time when action on the case was superseding the general action of trespass

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were able to turn a criminal into a delictual liability. The irrelevance of ownership is shown in an example from 1605 when the earl of Northumberland’s steward wrote to tell him that a Cockermouth man had been killed by the wheel of his own wain, and that the cart and four oxen and two horses yoked in it had been seized as a deodand.³⁹⁹ Nor did compensation go to the victim’s relatives (unless indirectly and at discretion), but to the lord, suggesting once more that deodands were originally conceived as a criminal rather than a delictual liability (or that the lord’s loss was prioritized).⁴⁰⁰ Deodands associated with culpable suicide were necessarily linked to felony. The doctrine of strict liability made plain in deodands extended further, because in practice an individual could suffer forfeiture of movable assets for causing death by accident. In 1602 John Mirus petitioned the earl of Northumberland to be readmitted to a cottage and close of ground near Cockermouth that he had held by a Border service tenure known as ‘tenant right’. Mirus had forfeited his holding for accidentally killing a child playing behind his target when he was ‘shootinge at a deade marke in a peece’ (presumably archery practice). Rather than trying to exculpate himself (for it was still ‘bloodshed’, even if accidental), he pleaded a poor mother and siblings when asking the earl ‘to have an honourable regard herein towards them’.⁴⁰¹ While a coroner’s inquest had found that the death was accidental, the manor court presented Mirus as a felon—as it was required to do, for the law did not take formal account of intent.⁴⁰² While he had not intended to kill the child, he was not without blame, as the lord had lost one of his people.

2.11b Lord and Tenant: Negotiating Dominance and Dependence The hand of the manor court fell heavy on John Mirus. Comprising a court baron and a court leet, manor courts were an important part of medieval and early modern life. Called by authority of the lord and presided over by his steward, the court baron was concerned with customary tenants and their obligations to the lord, but it also heard debt and trespass cases between lord in cases of personal injury, preparing the way for a tort of negligence. Ibbetson, Law of obligations, 296–7. ³⁹⁹ CRO D/PEN 216, f. 57. The same was true when one man killed another with an instrument belonging to a third party. Scriven, Treatise on copyholds, 765. MacCormack, ‘Thing-liability’, 330n, 337–9. ⁴⁰⁰ Scriven, Treatise on copyholds, 760. ⁴⁰¹ CRO D/LEC 265, no. 97. Sutton, ‘Early law of deodand’, 17–18, believes that deodands were not generally associated with felonies. T. A. Green, Verdict according to conscience: Perspectives on the English criminal trial jury, 1200–1800 (Chicago, 1985), 87–90, 96–8, also presents a different picture of medieval accidental slayers. ⁴⁰² Newcastle City Libraries, Local Studies L347.92: Thomas Davidson, ‘The charge of a court leet and court baron [of Morpeth, Northumberland], 1725’, no. 4. Davidson’s manuscript stated that the judgment for felony should be loss of goods and ‘charter of pardon must be purchased for it’. Hurnard, King’s pardon, 246. Baker, Cases . . . of King Henry VIII , 183.

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and tenant, or tenant and tenant. A court leet was held by authority of the crown and administered common and statute law over a wide spectrum of issues; presentments of suicides were sometimes made at views of frankpledge.⁴⁰³ Some medievalists see the manor court as structurally exploitative, extracting surplus from those who worked the land. Yet it was far from the simple instrument of its holder, and recent work suggests that by the sixteenth century its use ‘as an instrument of seignorial oppression had largely disappeared’.⁴⁰⁴ Quick, fair and cheap, the manor court remained a popular forum of litigation in the north of England into the early modern period.⁴⁰⁵ Those who owed suit to a court expected to have to pay death duties of one kind or another: unpopular they may have been, but they were both conventional and legal, and they registered title.⁴⁰⁶ The fees and ﬁnes tenants paid ﬁnanced courts that were as useful to them as to their lords.⁴⁰⁷ Among its other attractions was that executors of wills could sue and be sued for debt, as could administrators of estates.⁴⁰⁸ Felony involved forfeiture, but so too did many other things like failure to render rent and other services (like suit of court), waste, and making unwarranted conveyances using common law.⁴⁰⁹ However, forfeitures of any kind before manor courts were mostly temporary and they could be used as a constructive, collusive legal ﬁction to serve the needs of tenants and lords alike.⁴¹⁰ More broadly, relations between lord and tenant in the north of England remained relatively cordial. Peter Larson characterizes late medieval Durham as ‘surprisingly free of open conﬂict’ because of the close connections established in local courts, and Angus Winchester concurs for the late medieval and early modern period across the north of England.⁴¹¹ Philip Holdsworth concludes ⁴⁰³ Brooks, Legal profession, 39. Hunnisett, Sussex coroners’ inquests, 1558–1603, xvii. ⁴⁰⁴ C. Harrison, ‘Manor courts and the governance of England’, in Brooks and Lobban (eds), Communities and courts, 50. R. M. Smith, ‘The English peasantry, 1250–1650’, in T. Scott (ed.), The peasantries of Europe from the fourteenth to the eighteenth centuries (London, 1998), 346. Brooks, Law, politics and society, 255–6. ⁴⁰⁵ C. Caine, ‘The manor court of Egremont’, TCWAAS new series 15 (1915), 76–89. A. J. L. Winchester, The harvest of the hills: Rural life in northern England and the Scottish borders, 1400–1700 (Edinburgh, 2000), 33–48. ⁴⁰⁶ J. Hatcher, Rural economy and society in the Duchy of Cornwall, 1300–1500 (Cambridge, 1970), 194–5. Fleming, Family and household, 87. Ravensdale, ‘Population changes’, 197–225. W. M. Bowman, England in Ashton-under-Lyne (Altrincham, 1960), 19–84. Dyer, Age of transition, 123. ⁴⁰⁷ Dawson, Lay judges, 223. Ault, Private jurisdiction, 172–6. ⁴⁰⁸ Clark, ‘Debt litigation’, 252. ⁴⁰⁹ C. M. L. Bouch and G. P. Jones, A short economic and social history of the Lake Counties (Manchester, 1961), 67–8. C. M. Gray, Copyhold, equity, and the common law (Cambridge, Mass., 1963), 11. ⁴¹⁰ Fleming, Family and household, 87. Ravensdale, ‘Population changes’, 224. A. Brent (ed.), The court rolls of the manor of Wakeﬁeld from 1790 to 1792 (Leeds, 1994), 153–4. ⁴¹¹ P. L. Larson, ‘Local law courts in late medieval Durham’, in C. D. Liddy and R. H. Britnell (eds), North-east England in the later Middle Ages (Woodbridge, 2005), 101. Winchester, Harvest of the hills, 33–48. Hatcher, ‘English serfdom’, 11. R. W. Hoyle, ‘The management of the estates of the earls of Derby, 1575–1640: Some new sources’, NH 39 (2002), 25–36. The signiﬁcance of a

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of seventeenth-century Westmorland that jurors and court ofﬁcers ‘acted on behalf of the community to maintain the infrastructure of the manor and to discourage and punish offenders’.⁴¹² Indeed, manor courts remained important into the nineteenth century, and a survey of 1841 (a year before manorial functions were formally transferred to the parish vestry) found more than ﬁfty operational ‘courts baron’ in Northumberland and more than twenty in Co. Durham, dealing mostly with small debt and damage suits.⁴¹³ The northern peasantry may have been unusual in this regard. Many copyholders in Cumberland, Westmorland, and north-west Yorkshire enjoyed considerable security of tenure—rights reafﬁrmed in the early seventeenth century, which helped balance relations with landowners.⁴¹⁴ Particularly with tenants who held land formerly belonging to the crown or in areas where the crown had had an interest (like the Borders), lords were obliged to adopt a light touch.⁴¹⁵ Taking from tenants was balanced by giving to them, both in the structured exchange of the manor court and in more discretionary ways. As with any aspect of lordship, landowners entitled to forfeiture took into account broader circumstances, including formal advice from a manor court, semi-formal advice from regular or ad hoc advisers, and informal submissions from neighbours or ofﬁcials. A good or prudent lord (what Maitland called a ‘decent lord’⁴¹⁶) consulted those beneath him, judiciously giving and taking, renouncing and claiming. Lordship could be about direction, following ‘lordly routines, . . . ways of managing households and dependents’ that involved manipulation of ‘the structural and taxonomic elements of status, submission, and patrimony’.⁴¹⁷ However, it was also about dialogue, and the supplicant’s position needs to be understood, whether as a group in a local court or as an individual petitioner. manor to its inhabitants depended on the personality of the lord, and the manor’s size, concentration of land and legal privileges. Campbell, ‘The land’, 190–5. ⁴¹² P. Holdsworth, ‘Manorial administration in Westmorland, 1589–1693’, TCWAAS 3rd series 5 (2005), 160. D. Youngs, ‘Servants and labourers on a late medieval demesne: The case of Newton, Cheshire, 1498–1520’, Agricultural History Review 47, 2 (1999), 145–60. R. S. Dilley, ‘Rogues, raskells and turkie faced jades: Malediction in the Cumbrian manorial courts’, TCWAAS new series 97 (1997), 143–51. ⁴¹³ Dawson, Lay judges, 232. M. K. McIntosh, ‘Central court supervision of the ancient demesne court of Havering, 1200–1625’, in Ives and Manchester (eds), Law, litigants and the legal profession, 92–3. ⁴¹⁴ Bouch and Jones, Lake Counties, 65–74. Winchester, Harvest of the hills, 16. ⁴¹⁵ C. E. Searle, ‘Custom, class conﬂict and agrarian capitalism: The Cumbrian economy in the eighteenth century’, P&P 110 (1986), 106–33. C. Churches, ‘False friends, spiteful enemies: A community at law in early modern England’, Historical Research 71 (1998), 57–8. A. J. L. Winchester (ed.), The diary of Isaac Fletcher of Underwood, Cumberland, 1756–1781 (Kendal, 1994), 109–10, 128. ⁴¹⁶ F. W. Maitland, Select pleas in manorial and other seignorial courts. Vol. 1 (London, 1889), lx. Maitland was talking speciﬁcally about the treatment of villeins. ⁴¹⁷ Bisson, ‘Medieval lordship’, 745. Hatcher, Duchy of Cornwall, 195, notes that ﬁfteenthcentury lords usually allowed deduction of expenses incurred in the death of a bond tenant and also a third of the value of the estate. P. R. Schoﬁeld, Peasant and community in medieval England, 1200–1500 (London, 2003), 40–2, 106–13.

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An example of the role of a manor court in tempering a lord’s right to forfeiture comes from Cumberland in the mid-seventeenth century. In the Whitehaven record of 20 October 1646, listing entry ﬁnes levied on new tenants since the death of Sir John Lowther’s father, there is a pointing hand in the margin drawing attention to the tenement claimed by Jane Gosforth ‘after the death of Anthony her father butt this cannot bee for her brother enjoyed the tenement certaine yeares after the decease of Anthony their father soe that shee should have beene heire to him, but hee comitting felo de se shee can bee heire to neither; the Land is a forfeit to the Lord.’ The entry is also annotated in the right-hand margin, ‘A forfeit’.⁴¹⁸ However, Lowther seems to have been unwilling or unable to make good his claim. The court was not convened again until October 1652, and the jury on that occasion found ‘that since the last court Jane Gosforth died seized of the Messuage called Corkikle . . . and that Anne wife of John Graison her sister is her next heire’.⁴¹⁹ Once again it is plain that manor courts could be used by private individuals for their own reasons.⁴²⁰ This example comes from a time when lords may have felt vulnerable, but so did everyone, and some sought out ﬁrm lordship to counteract the instability of society and the intrusions of externally staffed agencies; there was no royal almoner between 1645 and 1660.⁴²¹ The limitations on lords are clear when forfeitures were discussed in estate correspondence outside the public purview of the manor court. For example, William Gilpin, a lawyer who was also steward to Sir John Lowther in west Cumberland, wrote from Whitehaven to his master in London on 20 September 1693: I have not hitherto acquainted your honour with John Ribton’s death, which was (sometime ago) occasioned by a fall from the rocks above Tom Herd; there was some cause to suspect that he was felo de se, which would [have] induced a forfeiture, whereupon I would not suffer the bailif to take a herriot, waiting the presentment of the coroner’s inquest; some of whom, as also the coroner, I acquainted with my observations; and wished them to inquire diligently into the matter. But some other circumstances, as the place whence he fell, which appeared to be deceitfull, and some ground broken above, and his hat left there, etc., induced the jury to ﬁnd it accidental.⁴²² ⁴¹⁸ CRO D/Lons/W/St. Bees Manorial Admittance book 1637–. ⁴¹⁹ CRO Folded sheets of paper comprising court roll of 1652 in box D/Lons/W St. Bees deeds. Courts Leet might refuse to register forfeitures (or other transfers) if the evidence was ambiguous. See, for example, Lancaster University Archives, ‘Abstract of court rolls . . . relating to the manor of Kirkby Lonsdale, 1639–72’, 15–16 (19 October 1642). ⁴²⁰ R. M. Smith, ‘The manorial court and the elderly tenant in late medieval England’, in M. Pelling and R. M. Smith (eds), Life, death and the elderly (London, 1991), 39–61. ⁴²¹ Rosenheim, Emergence of a ruling order, 115. Broad, Transforming English rural society, 185–6. For an example of a head-to-head ﬁght over jurisdiction between a High Sheriff of Cumberland and the earl of Northumberland over an Embleton felo de se from this period, see CRO D/LEC/CRI/1/2. ⁴²² D. R. Hainsworth (ed.), The Correspondence of Sir John Lowther of Whitehaven, 1693–1698 (London, 1983), letter no. 56.

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Ribton’s inventory is dated 14 September 1693 and gives a total in goods and money of £266 14s 0d; the entry ﬁne or ‘heriot’ due was £1 5s 0d and Ribton’s son was admitted to his tenement that October. A generation later, in 1727, a ship’s captain called Josiah Rumball shot himself in Whitehaven harbour. A coroner’s inquest found him insane.⁴²³ Sir James Lowther’s steward wrote to him about the case. ‘Josiah Rumbald, master of the Mary Anne shott himself thro’ the head with a pistoll yesterday in his cabin. The Corroner’s Inquiry brought in their verdict lunacy which was no doubt to save the forfeiture of his goods for their appeared no signs of lunacy but a discontentment at making a bad voyage.’ Lowther’s answer to this letter survives, but he made no comment on this item: there was nothing to be done.⁴²⁴ Thus, accommodation and conciliation could equally embody interactions, and the silences in the records were as much those of quiet negotiation as mute subordination. Indeed the few forfeiture cases unearthed from early modern estate records show that dependants had more than simply cunning or stubbornness behind their claims. Instead, they appealed to shared ideas of lordship that stressed mutual obligation rather than just lordly right. For example, in 1657 William Hodgeson petitioned the tenth earl of Northumberland, lord of the manor of Cockermouth, as heir-apparent of John Fisher of Great Braithwaite, who strangled himself in 1655. Fisher had been comfortably off, possessing a horse, mare and ‘yeardling colt’, household items, clothing, corn, etc worth £29 10s 5d, plus £13 12s 0d in gold, and also bills and obligations worth £55 7s 1d. After the inquest, the goods and chattels remained in the custody of Whilly Watson of Saxcastle, ‘gentleman and bayliffe to the earl of Northumberland’ (as lord of the manor); the bills and obligations rested with the coroner. The petition rehearsed how John Fisher’s movables had been ‘forfeited to your honour [the earl] and your petitioner debarred in his Clayme as next heir thereunto’. William asked to be admitted tenant to Fisher’s landholding for such a ﬁne as ‘shall in equity be thought ﬁtt and your petitioner shall as in duty dayly pray’.⁴²⁵ Behind the apparently formulaic words, the language of expectation and obligation is plain in a petition that follows established forms.⁴²⁶ Hodgeson asked to become heir as if Fisher had died a natural death. Lords had to deal fairly and generously with such requests in order to gain that respect, which was a necessary adjunct of title in the establishment and maintenance of authority. A lord made money from his tenants, but there was no sense impoverishing them needlessly, and there was built into the relationship a requirement to give. Lordship conferred rights, but it also entailed obligations. One was mercy and another largitas —a word whose meanings included magnanimity or generosity to others as well as conspicuous consumption. A crucial part of being a good lord ⁴²³ CRO D/LEC/CRI/36/6. ⁴²⁴ CRO D/Lons/W2/1/71, John Spedding writing to James Lowther, 25 October 1727 (no. 37). ⁴²⁵ CRO D/LEC 265, no. 20. ⁴²⁶ Taylor, ‘Plumpton letters’, 86.

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was to know how to take with restraint, but it was more important to be able to give, and thus to create the goodwill vital to running an estate. The ninth earl of Northumberland appreciated this: ‘to give well and advantageously will ask a great deal of art: but how to give that you may have the thanks (since it is you must part with the beneﬁt) in it lieth the mystery’.⁴²⁷ Northumberland knew from bitter experience the disadvantages of excessive liberality, citing the adage of what he saw as the corrupt and free-spending servants of his early days: ‘The Lord payeth for all’.⁴²⁸ What the lord got in exchange from the Fisher case seems slight, but even in a post-Reformation world the prayers of the needy retained a powerful symbolic value.⁴²⁹ Hodgeson’s petition was successful. Some time between 1722 and 1748 a similar petition was granted. This came from Jane Bell, widow of William Bell, labourer in Whinﬁeld in the parish of Brigham (Cumb.), a felo de se. Her petition to the lord’s steward recounted how her late husband was lately afﬂicted with A violent and rageing feavour and in the night season in the very height of his said distemper (unknown to your Petitioner, beinge a sleep and disordered by watchinge him severall nights befour) did rise out of Bedd and insensibly destroyed himselfe, soo that (of right) all the personall estate of your petitioner’s late husband doe belong to his Grace the Duke of Somersett (beinge lorde of the Mannor where he unfortunately distroyed himselfe as aforesaid). . . . your petitioner is left disconsolate with three small infants and noething wherewith to releive and maintain her selfe and said children (if his Grace should seize the said personall estate whereof your petitioner’s said husband dyed possessed). Your petitioner humbly beseeches your worship to take her poor & deplorable condition into your tender consideration and that you would [p]resent the same to his Grace the said Duke of Somersett and endeavour to prevaile with his Grace not to insist upon the said forfeiture soe that your petitioner might have some small stock to free her selfe and said small children from beinge a burden to the Parish where she now liveth. And your petitioner as is duty bound will ever pray.⁴³⁰

Jane’s account was decidedly heteroglossial. On the one hand, she threw herself wholeheartedly on the lord’s mercy, for her husband had been found culpable and she and her children were blameless objects of pity. On the other, she found many ways to say that William had not really been to blame, for he was ill, ⁴²⁷ G. B. Harrison (ed.), Advice to his son by Henry Percy ninth earl of Northumberland (1609) (London, 1930), 107. ⁴²⁸ Ibid., 84. W. MacCaffrey, ‘Place and patronage in Elizabethan politics’, in S. T. Bindoff et al (eds), Elizabethan government and society (London, 1961), 95–126. W. MacCaffrey, ‘Patronage and politics under the Tudors’, in Peck (ed.), Mental world of the Jacobean court, 21–35. L. L. Peck, ‘ ‘‘For a King not to be bountiful were a fault’’: Perspectives on court patronage in early Stuart England’, JBS 25 (1986), 31–61. ⁴²⁹ F. Heal, ‘Reciprocity and exchange in the late medieval household’, in B. A. Hanawalt and D. Wallace (eds), Bodies and disciplines: Intersections of literature and history in ﬁfteenth-century England (London, 1996), 181. ⁴³⁰ CRO D/LEC 265, no. 7.

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disordered, fevered, and insensible. For his part, the steward’s summary on the outside of the letter spoke only to the lord’s interest in the public transcript: ‘she acknowledges all his personal estate is forfeited to their graces [the duke and his duchess, through whom he had acquired the lands] & humbly desires they would not insist upon the forfeiture, that she & her children may be kept from the parish’. On the lord’s part this acknowledgement was a signiﬁcant buttress for his rights, as was the acceptance of a deodand. A case from the early eighteenth-century illustrates more clearly the dynamic relationship between lord and tenant. Jenkin Sanderson of Hutton (Cumberland), yeoman, granted a lease of 999 years to Lancelot, father of Thomas Allison of Hutton, yeoman, for a house and land at Unthank. Thomas Allison forfeited it to the crown by his suicide in 1671. Subsequently, Sir George Fletcher bought it and, out of ‘bounty and benevolence’ to the Allisons ‘(being most of them Servants and Retainers to the said Family of Hutton)’ allowed them to use that house and land as they liked during his lifetime. George knew all about forfeiture, having had to buy back his estates from Parliament after his father died ﬁghting for Charles I.⁴³¹ However, when George died in 1700, his heir, Sir Henry Fletcher, was out of the country, and the Allisons ‘gave his Stewards and Agents great trouble and charges of law, alleging that they were the reall Purchasers from the Crown and that the Name of Sir George Fletcher was Onely made use of in Trust’. Later they agreed to refer the dispute to Henry on his return. Having heard the arguments he renounced his claim ‘rather than to insist upon a Title which may any way Seeme to be Unjust or hard upon others’, especially those who have ‘Wholy Refer’d themselves to him’. So it was that in 1705 he conveyed the holding to the Allison family for the remainder of the 999-year term.⁴³² Both the Fletchers felt the burden of obligation that was part of being a good lord, expressing themselves through deeds within a system of thought which stressed reciprocal duty between an ‘erthely lord’ and ‘the peple in thair richtis’.⁴³³ Sir Henry recognized that by surrendering to his judgement, the Allisons placed themselves in a strong position that made it hard for him to refuse. Other landowners expressed these values of good lordship quite openly. Sir Richard Grosvenor, a seventeenth-century Cheshire gentleman, wrote in a letter of advice to his son: ‘Bee charitable to the truly poore . . . [and] cloath the naked’. Continuing his homily, he counselled: ‘Bee kinde & loveinge to your tennants and tender over them. Make not slaves of them, but use them soe that they may delight to bee commanded by you and to bee usefull to you. Remember they are planted under you not to be tirranized over but to bee protected, not to be ruined but to bee fostered by you.’ He advised his son to follow this advice, ⁴³¹ J. Nicolson and R. Burn, A history of the antiquities of the counties of Westmorland and Cumberland 2 vols. (London, 1777), vol. 2, 390. ⁴³² CRO D CC 1/39. ⁴³³ M. James, Society, politics and culture: studies in early modern England (Cambridge, 1986), 327, quoting reproducers of Raymond Lull’s Book of the ordre of chyvalry (c.1483–5).

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‘lest otherwise the poore tennant cry unto God for ease & hee take thire cawse in hand’. Grosvenor practised what he preached, listening to appeals from both the needy and their neighbours on their behalf as well as charging meetings of Quarter Sessions with the obligations to the commonwealth of participants (jurors and all).⁴³⁴ Ideas of obligation and honour also permeated Welsh gentry culture of the Tudor and early Stuart period.⁴³⁵ That Grosvenor expressed himself in the language of religious morality does not mark him out as unusual, for his views were located within a strong Christian tradition of the value of social and political action.⁴³⁶ Owning land put lords in a position of stewardship sanctioned by and presided over by God, a tradition that was not merely Protestant.⁴³⁷ The Jacobean memorandum book of Richard Cholmeley, a Catholic gentleman of Brandsby in North Yorkshire, contains a rental of his estates. Entry number 53 of 60 listed tenancies tells of Cholmeley’s involvement with the guardianship of the children of a joint suicide. ‘John Siclyn smyth hath Barthelmew Thornton’s lease ould rent being viijs. after his sonne Richard Thornton and his [wife] did putt them selves away and the howse burned[:] the smyth brings upp one of his children[,] John Rymer an other and his brother John Thornton his sister’s child.’⁴³⁸ Siclyn or Sicklynge, elsewhere described as ‘our smyth’, was himself a beneﬁciary of Cholmeley’s brother Marmaduke’s paternalism, living rent free in return ‘for kepeing the clocke’ until he took over Thornton’s tenancy.⁴³⁹ Assigning the lease was part of a division of responsibilities for the children, which also assured continuity of tenancy for the landowner. The lord distributed the burden of support among his tenants and ensured that his rents and services would be forthcoming. He acted as a good lord. Deeds of charity and piety like this were ‘synonyms of good lordship’ for all the gentry of early modern England.⁴⁴⁰ They located the lord’s power in a shared moral universe that contained both support for his rights and for those of his dependants. Having clients gave him authority, which in turn allowed him to serve his people as they served him. Clients knew this, and they appealed explicitly to the norms of reciprocal obligation—as the Allisons had done. The ﬁfteenth- and sixteenth-century correspondence of the Plumpton family of ⁴³⁴ R. Cust (ed.), The papers of of Sir Richard Grosvenor, 1st bart. (1585–1645) (Stroud, 1996), 32, 33–4, 55, 57. R. Cust and P. G. Lake, ‘Sir Richard Grosvenor and the rhetoric of magistracy’, Bulletin of the Institute of Historical Research 54 (1981), 40–53. For other examples see Heal and Holmes, Gentry, 102–4. ⁴³⁵ J. G. Jones, Concepts of order and gentility in Wales, 1540–1640 (Llandysul, 1992), 149–243. ⁴³⁶ Bossy, Peace, 79. Heal and Holmes, Gentry, 103. ⁴³⁷ A. McRae, God speed the plough: The representation of agrarian England, 1500–1660 (Cambridge, 1996), 39–40, 47–9. ⁴³⁸ The memorandum book of Richard Cholmeley of Brandsby, 1602–1623 (Northallerton, 1988), 18. ⁴³⁹ Ibid., 16. ⁴⁴⁰ Mertes, English noble household, 146, 157–9. Swanson, Church and society, 275–308.

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Yorkshire contains requests from clients for ‘good lordshipp and mastershipp’ or to ‘make your frynds to take your part as frynds shold doe’.⁴⁴¹ This appeal to ﬁctive kinship added to calls upon the memory of services rendered by, and to, lords, reinforcing the patterns of security and support that created bonds of allegiance and obligation. Lordship’s claims to service, ﬁdelity, and obedience were balanced by duties to patronize and to protect that were based on notions of honour and ‘worship’. Seen thus, lordship was ‘less an abuse of power than its necessary condition’.⁴⁴² Petitions to any superior were reminders of responsibilities as much as requests for largesse.⁴⁴³ They were lesser versions of formal ceremonies of homage where a vassal swore allegiance and obligation to a lord. By making such an act, a vassal’s own rights were conﬁrmed by his lord as he traded service for protection. The key was reciprocity. Honourable men were in conscience bound to be loyal to their lord, but adherence was only ‘while he protected, was just, rewarded, and took counsel’.⁴⁴⁴ Petitioners recognized that their lord was himself part of an afﬁnity and that the crown as ultimate lord actively policed the lordship of its subordinates. As K. B. McFarlane put it, ‘The king was in fact the good lord of all good lords’.⁴⁴⁵ Indeed, Richard Hoyle believes that Elizabethan government assumed that if owners of private estates were at fault, ‘disputes between the landlord and tenant should be resolved by the former’s moderation or withdrawal of his claims’, while on the crown estates tenurial policy was evidence of ‘a commitment to an ideal of social organisation in which landlord and tenant lived in peace’.⁴⁴⁶ Franchisal lords were between crown and people. They monitored suicide forfeitures for their own reasons, but they were also subject to pressures from above and below to maintain order and settle disputes, the imperative to be just and merciful limiting their room for manoeuvre. Lords also policed each other, and tenants openly compared the lordly qualities of their superiors, meaning that there was a political cost to being a bad lord. There was a hierarchy of lordship, with different levels of obligation. One was of the mesne lords towards the chief lord, and the other of manorial tenants to either the mesne or chief lord.⁴⁴⁷ When the earl of Northumberland’s tenants in seventeenth-century Cumberland ⁴⁴¹ Quoted in J. Taylor, ‘The Plumpton letters, 1416–1552’, NH 10 (1975), 85. ⁴⁴² Walker, ‘Order and law’, 104. P. Maddern, ‘Honour among the Pastons: Gender and identity in English provincial society’, Journal of Medieval History 14 (1988), 357–71. ⁴⁴³ Hoyle, ‘Petitioning as popular politics’, 365–89. Kesselring, Mercy and authority, 111–25. ⁴⁴⁴ James, Society, politics and culture, 330. Brooks, Law, politics and society, 325. ⁴⁴⁵ K. B. McFarlane, The nobility of later medieval England (Oxford, 1973), 119. ⁴⁴⁶ James, Family, lineage, and civil society, 183. R. W. Hoyle, ‘Reﬂections on the history of the crown lands, 1558–1640’, in Hoyle (ed.), Estates of the English crown, 419–20. J. Walter, ‘Public transcripts, popular agency and the politics of subsistence in early modern England’, in Braddick and Walter (eds), Negotiating power, 125–6. Early Stuart ones may have been less benevolent. Brooks, Law, politics and society, 344–5. ⁴⁴⁷ R. B. Smith, Land and politics in the England of Henry VIII: the West Riding of Yorkshire, 1530–46 (Oxford, 1970), 45.

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described him in petitions as ‘paramount or chiefe lord’, they did so to enlist his support against someone with pretensions who was ‘but an Inferior lord’. The tenants were superﬁcially submissive, but manifestly manipulative: ‘and if it bee our right he wod please to see us righted and if not to lett us know; for we are not willing to loose our right but if it bee not our right wee must becom tributary’ to these lesser lords, who nevertheless claimed to be ‘heid lords of the soyle’.⁴⁴⁸ Cumberland, though mostly comprising compact baronial estates, had a history of gentry rivalries, and tenants were well-used to playing off the sensibilities of their competing superiors.⁴⁴⁹ Subordinates there and elsewhere continuously passed judgment on their lords in day-to-day relationships where lordly ‘honour’ or ‘worship’ was tested. For their part, lords had at least to be receptive to petitions and there were cogent reasons, both practical and ideological, for granting them, for paternalism’s harder face was also countered by individuals and village communities who sought to assert different principles of social and political coordination. Foucault saw power everywhere and felt that resistance could not exist outside a relationship with power but, by the same token, power is never exterior to resistance.⁴⁵⁰ Seen in this way, ‘confrontation could serve to repair the institutions of lordship and the estate rather than to damage or destroy it’.⁴⁵¹ Yet the outright disobedience of subordinates that historians tend to focus on was unusual. Instead, willing obedience had constantly to be won. The treatment of forfeitures of felones de se in the early modern period was part of a circumspect approach to lordship that was enforced from within and without. The lord’s status, power, and proﬁt arose from ‘a joint-stock enterprise’, rather than a solely owned monopoly.⁴⁵² To use another metaphor, forfeiture was not a zero-sum game where the lord’s gain was the family’s loss. It was instead an invitation to enter into a social or moral arrangement (with ﬁnancial implications) where both sides (and ‘society’ or ‘community’) had an opportunity to gain, even if the process meant that the lord sometimes took a percentage and thus reduced the total estate or ‘prize’. Commonly assumed to have faded at the end of the Middle Ages, lordship was still important under the Tudors and Stuarts, and its essential elements endured into the Georgian age for those who wanted to activate them. It was not purely a northern ‘survival’, for elsewhere in England (and Wales and Ireland) lords can be found making discriminating choices about forfeitures.⁴⁵³ The dynamics of relations between lord and man can be seen more transparently in some eighteenth-century Welsh examples. A letter of November 1758 to the duchess ⁴⁴⁸ CRO D/LEC 265, nos. 27, 38, 118, 129 ⁴⁴⁹ Heal and Holmes, Gentry, 175. ⁴⁵⁰ Scott, Domination, 111n. ‘Forms of domination are devised, elaborated, and justiﬁed because the effort to bend others to one’s will always encounters resistance.’ ⁴⁵¹ Larson, Conﬂict and compromise, 233. ⁴⁵² McFarlane, England in the ﬁfteenth century, 32. ⁴⁵³ A. B. Grossart (ed.), The Lismore papers (ﬁrst series) 5 vols. (privately printed, 1886), vol. 1, 48–9; vol. 2, 90; vol. 4, 109. Hunnisett, Sussex coroners’ inquests, 1603–1688, no. 72.

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of Beaufort from her steward told of the forfeited goods belonging to the suicide John Gething, an inhabitant of Oystermouth (Glam.).⁴⁵⁴ The steward, Gabriel Powell, reported a meeting with Gething’s relations, weaving together two narratives, a rehearsal of the duchess’ standing instructions on how her lordship was to manifest itself alongside his own innuendo, to create an illuminating tale of mediation and negotiation. Powell had been formally instructed to express the duchess’ concern about the death and to ‘use all the tenants and inhabitants of the seigniory with the greatest lenity as far as was consistent with justice to the lord’. He did so, ‘but hinted that I would not avoid distinguishing between those that behaved well or ill towards the lord’. Negotiation started. Powell put it to the family that the dead man’s effects were undervalued and demanded £20 composition. The relations demurred: a horse had died since the appraisal; they had had expenses and there would surely be more. The steward settled for £17 10s 0d and got a promissory note from the family. In the end, Powell thought everyone was happy. He had, he hoped, acted ‘agreable to your grace’s sentiments’. As for the relations, ‘they seemed very well pleased with what was done, and desired me to return their humble thanks to your grace’. The match was over. The duchess’ formidable steward and the equally steadfast Gethings seem to have fallen easily into the game of good lord, good tenant. Operating through the steward, lordship was not a system based merely on force, despotism, and exploitation. Instead it was a structure of rule that embodied paternalistic elements and produced a culture with its own forms of symbolism and ritual. As the surrogate of his master or mistress (performing a range of roles from ‘almoner’ to ‘ambassador’) any good steward was involved in social adjustment, including the distribution of aid and poor relief.⁴⁵⁵ He mediated lordly power, but also felt the energy created at the interface between material inequality and moral substance. Relations between a steward and tenants worked when the former was attentive and assertive, but realistic, and the latter were ﬁrm yet at the same time suitably pliant. A generation later, the earl of Powis, lord of the barony or lordship of Powis in Montgomery provided another example of good lordship (arglwyddiaeth). John Matthews of Pool, currier, poisoned himself in April 1783 and was found felo de se. Powis was entitled to his movable goods, but surrendered them to Matthews’ intended heir, his spinster niece, Eleanor Matthews. In the formal disposition, Powis correctly made it plain that he was not liable to pay the ‘considerable sums’ the suicide owed to ‘divers persons’. However, he went on to acknowledge that ‘the same in justice & equity ought to be paid & discharged’. The niece had petitioned the earl for the forfeited goods and had been prepared to accept the ⁴⁵⁴ NLW Badminton 2402. On the charitable works of an earlier Beaufort see Heal, ‘Reciprocity and exchange’, 181. ⁴⁵⁵ Hainsworth, Stewards, 108–35, 159–72, 186–204.

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condition that she repay the debts ‘so far as she would be obliged to do if the said John Matthews had died a natural death and she had been the executrix’. Powis, ‘not desiring in this instance to derive any pecuniary advantage, but considering the grief & loss which in consequence of the said melancholy event hath been experienced by the said Eleanor Matthews & the other Relations and Friends of the said deceased, hath chearfully promised & agreed’ to her request. He charged her £5, but also put the full weight of his authority behind her in seeking to secure assets to match Matthews’ liabilities, making her for this purpose only ‘his true & lawful attorney or attornies for him and in his name . . . as if the said Earl was present’.⁴⁵⁶ The lord’s grant might come at a price, but it conferred important advantages on the grantee. She shared in the same type of authority conferred by an almoner’s grant, where (to paraphrase John Walter) the strength of an undisputed writ compensated for the weakness of coercive powers.⁴⁵⁷ And, as may sometimes have happened with the almoner, the actual litigation was done by a creditor in the name of his or her lord, not by the franchisee himself.⁴⁵⁸

2.11c Good and Bad Lordship: The Limits of Lordly Lenience The discussion of urban oligarchy in 2.10 is a reminder that not all lordship was good lordship and this is equally true of rural relationships. Paternalism came out of fundamental inequalities in power and there always existed, latent or overt, the possibility of inﬂicting physical, ﬁnancial, or psychic domination. Especially in the sixteenth century the use of force was an expected part of the search for honour or pre-eminence among the upper classes, and the lower orders were well aware that such structured ‘violence’ (which sometimes accompanied litigation) could spill over into relations with subordinates.⁴⁵⁹ The contests between Tempests and Savilles discussed in 2.8 are a prominent example where force was ‘a language of social order’.⁴⁶⁰ If a landowner’s power came out of proximity, leniency, and good lordship, it also depended in part on fear. Thus, in Scott’s terms, the public transcript could conceal hidden injuries as well as hidden transcripts. Within a normative order relations could be marked by conﬂict as much as consensus, and the existence of compromise came out of visible frictions between lords and people in relations that were not always amicable.⁴⁶¹ ⁴⁵⁶ NLW Glansevern 11515. The wording is reminiscent of delegations of authority to estate stewards. D. R. Hainsworth, ‘The estate steward and English society, 1660–1714’, Historical Studies [Australia] 21 (1985), 362. ⁴⁵⁷ Walter, ‘Public transcripts’, 126. ⁴⁵⁸ For example, Somerset RO DD/DP/52/13. ⁴⁵⁹ James, Society, politics and culture, 310–14. S. Howard, Law and disorder in early modern Wales: Crime and authority in the Denbighshire courts, c.1660–1730 (Cardiff, 2008), 76–9, 207–19. ⁴⁶⁰ Maddern, Violence, 234. ⁴⁶¹ Walter, ‘Public transcripts’, 128. Larson, Conﬂict and compromise, 232. Whyman, Sociability and power, 159–61. E. Shagan, ‘The two republics: Conﬂicting views of participatory local government in early Tudor England’, in J. F. McDiarmid (ed.), The monarchical republic of early modern England: Essays in response to Patrick Collinson (Aldershot, 2007), 27.

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In restitution or alienation, forfeiture could be used aggressively as a social, ﬁscal, and political tool, for it gathered together control of assets and therefore reactivated power.⁴⁶² At the estate level, John Norden had his early seventeenthcentury Surveyor exclaim: ‘I know many Lords too forward in taking advantage of forfeitures upon small occasions’ to substitute leasehold for copyhold.⁴⁶³ At a regional level Krista Kesselring has charted the single-minded accumulation of wealth and patronage from forfeiture by Elizabeth in the aftermath of the 1569 Northern Rebellion.⁴⁶⁴ At a national level, almoners could be ruthless in driving forward their vision of a Christian commonwealth and their place in it as self-styled benevolent governors, whether that meant forcing disclosure and settlement by survivors or correcting heavy-handed interventions by lords. Across England there were bad lords to be corrected, as there had been since the Middle Ages.⁴⁶⁵ Lordship could simply be another form of ‘managerial practice’, or what Thomas Bisson terms ‘a mode of personal power over human beings’.⁴⁶⁶ In this scheme, mercy might simply be the more reﬁned part of paternalism that was calculative rather than kind—just as beneﬁcence was conﬁgured publicly to parade commitment to values of piety, generosity, and harmony in ways that also announced dominance and control. Richard Cholmeley used his position to help orphans (see 2.11b), but his father had tried more vigorously to exploit his tenants at Ingleton in the 1580s and 1590s, both by denying that they held by tenant-right and by pressing for much-increased entry ﬁnes. The tenants complained he ‘would allow them nothing’ and was ‘hard to them and every day at new covenants with them’; after inheriting in 1600 the younger Richard continued the pressure to weaken his tenants’ copyhold rights.⁴⁶⁷ Kindness could be contingent, and some early modern lords were indeed heavy. To the ruthless pursuit of personal gain could be added the naked manipulation of political advantage by lords as a class. For example, some argue that in implementing ‘bloody’ criminal codes, the landed e´lites of eighteenth-century England displayed their predatory instincts, and that between the 1650s and the 1720s a lapse in standards of public morality occurred that allowed a ⁴⁶² Foucault, Discipline and punish, 49. ⁴⁶³ J. Norden, The surveior’s dialogue (London, 1618), 60. ⁴⁶⁴ K. J. Kesselring, The northern rebellion of 1569: Faith, politics and protest in Elizabethan England (London, 2007), 118–43. ⁴⁶⁵ R. L. Storey, ‘The north of England’, in S. B. Chrimes, C. D. Ross and R. A. Grifﬁths (eds), Fifteenth century England, 1399–1509: Studies in politics and society (Stroud, 1997), 140–1. L. Bowen (ed.), Family and society in early Stuart Glamorgan: The household accounts of Sir Thomas Aubrey of Llantrithyd, c.1565–1641 (Cardiff, 2006), 25–7. Dyer, ‘Ineffectiveness of lordship’, 69–86. ⁴⁶⁶ R. W. Hoyle, ‘An ancient and laudable custom: The deﬁnition and development of tenant right in north-western England in the sixteenth century’, P&P 116 (1987), 51. Bisson, ‘Medieval lordship’, 746. ⁴⁶⁷ Memorandum book of Richard Cholmeley, ix, 46. J. Bentley, Elizabethan Ingleton (Burnley, 1990), 11–13. J. T. Cliffe, The Yorkshire gentry from the Reformation to the Civil War (London, 1969), 41–2. Walter, ‘Public transcripts’, 131. Bowen, Family and society, 33.

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repulsive Whig oligarchy to undermine all that was good about English society and politics.⁴⁶⁸ The paternalism of the new age had a harsh, self-interested and authoritarian face, the rhetoric of law and justice hiding the forceful realities of power, ‘the associative virtues of largesse and loyalty . . . besmirched by ambition and greed’.⁴⁶⁹ Lordly discourse of what some call the ‘aristocratic century’ lacks the prominent religious dimension of Tudor and Stuart lordship.⁴⁷⁰ The handson and morally grounded stewardship of the sixteenth and early seventeenth century had given way to a more distanced discourse of lordly rights.⁴⁷¹ Great lords were replaced by lesser as arbitrators and mediators because the mighty became more focused on the royal court, and their inferiors came to be seen as more knowledgeable, diligent, and trustworthy agents. Thus early Tudor lords and bishops gave way to Elizabethan and later gentry, judges, and lawyers.⁴⁷² From the mid-seventeenth century all landed elites began to withdraw from participation in local government.⁴⁷³ The weakening of manorial structures and the corresponding emergence of the parish as a secular administrative body run by an oligarchic vestry changed the dialectic of lordship and community into an exercise in the imposition of state authority.⁴⁷⁴ In the case of towns too the conventional picture is of the corporate citizens of the sixteenth and early seventeenth century giving way to the more exclusive and exclusionary bourgeois city of the post-Restoration era.⁴⁷⁵ Yet examples of how franchisal lords handled forfeitures include cases from the eighteenth century, the very period when social relationships were apparently changing so profoundly. Change there was, but for those who needed it, the underlying assumptions and well-understood practices of obligation within lordship remained clear in the eighteenth century. Being aware of, and responsive to, events among tenants and other dependants, and using an even-handed, tactful, and sensitive approach to resolving their problems was as important in 1800 as it had been in 1600 or 1400.⁴⁷⁶ An unedifying confrontation that shows the partial failure of these qualities took place in winter 1787–8 around the estate of Thomas Jenkin of Llantwit Fardre (Glam.), a tenant of the manor of Miskin. Found felo de se, his body ⁴⁶⁸ E. P. Thompson, Whigs and hunters: The origin of the Black Act (London, 1975), 216. ⁴⁶⁹ Bisson, ‘Medieval lordship’, 747. ⁴⁷⁰ J. Cannon, Aristocratic century: The peerage of eighteenth-century England (Cambridge, 1984). ⁴⁷¹ McRae, Agrarian England, 137–43, 192–4. ⁴⁷² Gunn, Early Tudor government, 87. Heal and Holmes, Gentry, 187–9. ⁴⁷³ Rosenheim, Emergence of a ruling order, 115–19. ⁴⁷⁴ S. Hindle, ‘The political culture of the middling sort in English rural communities, c.1550–1700’, in T. Harris (ed.), The politics of the excluded, c.1500–1850 (London, 2001), 125–52. ⁴⁷⁵ P. Withington, ‘Two renaissances: Urban political culture in post-Reformation England reconsidered’, Historical Journal 44 (2001), 239–67. ⁴⁷⁶ M. A. Hicks, ‘Restraint, mediation and private justice: George, Duke of Clarence, as ‘‘good lord’’ ’, JLH 4, 2 (1983), 56–71. Walker, ‘Lordship and lawlessness’, seeks to strike a balance between traditional and revisionist views. Heal and Holmes, Gentry, 175–7.

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was dug up from the churchyard and re-buried in the highway. A local agent wrote to the steward of the Bute estate alerting him to the suicide verdict and suggesting he take legal advice ‘if we have anything to do in the matter’.⁴⁷⁷ The steward, Henry Hollier, wrote back to say that, in his ‘humble opinion the busy neighbourhood . . . have acted cruelly in digging up the body after three weeks interment. It seems that no body but me gains by that transaction, on which, as well as on other accounts, I shall await myself of the circumstance with much reluctance, without you possess some powerful argument to quiet my conscience’.⁴⁷⁸ Hollier wrote this on 6 January 1788 and must simultaneously have sought legal opinion, because it duly came from Lincoln’s Inn, dated 16 January.⁴⁷⁹ The document begins by rehearsing the case as seen by Hollier. It reproduces the inquest verdict and goes on to explain that Jenkin’s heirs ‘are all at variance with each other: and all of them instead of recommending themselves to his Lordship’s compassion, are taking every adverse step they can, in opposition to his claim’. That meant threatening the steward for seizing Jenkin’s movables, valued at £400 (at issue was also 71 guineas delivered to the heir-at-law by a maid servant between his death and the inquest) and claiming the lord had no right until the inquest verdict was registered at a superior court. Jenkin’s heir-at-law ﬂailed about, accusing the maid servant of murder for having at ﬁrst covered up the suicide and charging the coroner with corruption for not summoning him. Counsel’s opinion is less equivocal than is usual by the standard of such documents. The 71 guineas could be recovered by an action of assumpsit, but ‘resort to a court of equity’ would be needed to compel payment of bonds and notes of hand: an interesting commentary on the continued importance of this branch of law at a time when trespass on the case was well established at common law.⁴⁸⁰ Counsel was puzzled by the attitude of Jenkin’s relations. ‘The next of kin seem to be very ill advised at present, & certainly had much better throw themselves on L[or]d M[ountstuart]’s generosity than contest his title’. Indeed, counsel added in an aside that Jenkin made a testament just before he died and if the verdict of felo de se was overturned as the relatives wished, a neighbour would become executor. However, he concluded that going to a superior court was a risky strategy for either party. The kin’s case had no legs, for the coroner and the steward had acted ‘correctly & legally’ and there were no grounds for traversing the inquest. For the lord (and here counsel rehearsed Blackstone), ‘this claim of ⁴⁷⁷ NLW Bute L44/50. ⁴⁷⁸ NLW Bute L94/107. For a similar pejorative use of ‘busy’ in connection with a suicide see Latham and Matthews (eds), The diary of Samuel Pepys, vol. 9, 34. ⁴⁷⁹ NLW Bute C128. ⁴⁸⁰ Equity was allowed to continue to perform functions it had always done. Potter, Equity, 41, 54, 60–1, 101–3. Gray, ‘Equitable function’, 209. One useful role was ‘speciﬁc performance’ or ‘speciﬁc relief’, compelling the defendant to carry out a promise rather than merely seeking damages for non-performance as assumpsit did.

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forfeiture is always odious & unpopular, & I should not wonder if the leaning against it should in some shape or other get rid of it even in the present case: therefore, if the parties interested should be disposed to compound the matter, it would be prudent to do so’.⁴⁸¹ Seeking legal opinion was often a way of putting pressure on potential litigants. In this instance, Hollier acted because a verdict of felo de se required the lord’s intervention: the steward had to protect his interests and to be seen to be an agent of good lordship. His palpable reluctance to be involved is matched by his stern pursuit of the family, behind which is a sense of punishing ‘the busy neighbourhood’ for making a decision at inquest whose implications they had not fully considered. In fact they strongly suspected that Jenkin had forged the will of an uncle and killed himself to avoid impending prosecution. This case turned sour, not because of a structural ﬂaw in social relations opened up by the law of forfeiture, but because of its particular circumstances and personalities. It was not forfeiture itself, but its unjust or greedy handling that was ‘odious’. To focus on the potential for hypocrisy is to ignore the forces that gave the code of lordly obligation its meaning. To see lords as one-dimensional cash generators, and communities as sensitive responders to local needs is to misrepresent the potential subtlety and inclusiveness of the former, and to misunderstand the possible partiality and ruthlessness of the latter. Concrete examples of the handling of forfeitures by crown and almoner, corporate bodies, and territorial lords show that not all superiors were wilful, rapacious, and uncaring in dealing with suicides (or any other vulnerable dependants). To believe that they were is to assume motive and to equate opportunity with attainment, to see only the worst scenario when in truth good and bad co-existed. It is to infer the nature of a social and political system from alleged perversions of its principles. In the end, as Geoffrey Elton warned, ‘moral reprobation offers no clue to the inquirer who would understand’ crown, lords, and people in early modern England.⁴⁸² 2 . 1 2 FELO DE SE A N D N O N C O M P O S M E N T I S V E R D I C TS : A C O N U N D RU M R E S O LV E D The argument presented here helps make sense of inquest verdicts and their change over time. It does not posit that a felo de se verdict was simply a legal convenience or a pretext, though some contemporary observers and modern historians alike claim that the alternative verdict of non compos mentis was just that: a ‘pious perjury’ to avoid forfeiture and shame.⁴⁸³ Medieval and ⁴⁸¹ NLW Bute C128. Blackstone, Commentaries, vol. 1, 292 and supplement. ⁴⁸² Elton, ‘The rule of law’, 293. ⁴⁸³ Jeremy Bentham wrote that ‘perjury is the penance that, at the expense of religion, prevents an outrage on humanity’. Works of Jeremy Bentham, vol. 1, 480.

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early modern juries found some people felo de se for reasons that included substantial evidence of intention or state of mind and also out of a vaguer, but still substantive, sense of the wrong that had been done. A ﬁnding of wilful self-murder could potentially entail penalties against the body that cannot be written off as a mere side-effect or a substitute for something else. And there were other ways of resolving the aftermath of suicide without activating this aspect of lordship. Instead, the suggestion is that inquests were aware of the legal context of verdicts and the socio-political ramiﬁcations of forfeiture. Either verdict was a useful ﬁction that could be adjusted to work with or without the aid of lordship, and within different legal and political frameworks. This proposition helps in understanding the medieval pattern of coroners’ verdicts as well as the early modern. It was once thought that ‘juries very seldom returned verdicts of felo de se prior to 1500’ and that ‘the law of self-murder was only enforced when it was unavoidable to do so’.⁴⁸⁴ Sara Butler’s work wholly disproves this. She has shown that 79 per cent of 718 cases from the Middle Ages (mostly fourteenth century) resulted in a verdict of felo de se.⁴⁸⁵ More, Butler has shown that mental instability was recognized as a component of suicide in 15 per cent of cases, and she concludes that medieval English people ‘recognized a tangible connection between mental defects and self-killings’—even if simple depression did not excuse suicide.⁴⁸⁶ Indeed, Britton expresses better than Bracton the treatment of suicide in England from the early thirteenth century, when felony forfeiture was introduced and when all suicides, sane and insane, were forfeited—a fact probably known to the author and reviser of Bracton, who was plainly an enthusiast for the emerging common law of England.⁴⁸⁷ Thus there was considerable continuity in verdicts with the early modern period, medieval juries being capable of discriminating between states of mind. They also seem to have been comfortable with ‘mixed’ verdicts that found the deceased both responsible and insane.⁴⁸⁸ Butler reports that 40 per cent of medieval English people described as non compos mentis were also held to be felonious self-murderers. Verdicts were social pointers to how a death should be viewed and dealt with, rather than categorical statements about personal responsibility, just as reports of assets were generalized indicators of wealth and forfeitability. Verdicts were part of a complex suite of understandings and judgments that took into account the circumstances of the event, the character of the person, the likely outcome, and the need for ideas of ‘justice’ to be served. ⁴⁸⁴ MacDonald and Murphy, Sleepless souls, 22–3. ⁴⁸⁵ Butler, ‘Degrees of culpability’, 266. Butler nevertheless notes that coroners’ juries were much less likely to describe death as felonious than were eyre or assize juries. Butler, ‘Local concerns’, 824. ⁴⁸⁶ Butler, ‘Degrees of culpability’, 268. Seabourne and Seabourne, ‘Law on suicide’, 31–2. Vandekerckhove, On punishment, 88–93. ⁴⁸⁷ R. D. Groot, ‘When suicide became a felony’, JLH 21 (2000), 13. This could still happen in the sixteenth century. Hunnisett, Sussex coroners’ inquests, 1485–1558, nos. 77, 99. ⁴⁸⁸ Butler, ‘Local concerns’, 826. Butler, ‘Degrees of culpability’, 270.

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The phrases of afforcement they used (of which valuation of movables was one) were meant as signals or cues of how all aspects of a suicidal death should be handled. In a period permeated by lordship and equipped with institutions like manor courts, verdicts activated readily available mechanisms to deal with the aftermath of suicide. If it can be asserted that post-Restoration juries could ﬁnd a suicide non compos mentis in order to prevent forfeiture and if, as seems clear, it was not the power of the almoner or any other central ofﬁcial that policed them into ﬁnding felo de se, then it seems hard to deny that Tudor and Stuart juries possessed similar discrimination. There was no deus ex machina prior to the Civil War, and Part 2 will show that there was neither ‘medicalization’ nor ‘secularization’ of suicide to explain the shift in verdicts in the seventeenth and eighteenth century. Most pre-eighteenth-century suicides were found felo de se because juries thought suicide a wrongful death, just as they granted deodands on the premise that there was something blameworthy in an object, following the doctrine of strict liability. Until late in the day, deodands were not a roundabout way of punishing negligence, for both murderers’ and suicides’ instruments were also forfeited. Instead, they were tokens, not only of blame, but also of entitlement or, more properly, responsibility on the part of the recipient lord. Similarly, felo de se as a verdict was not a pretext for taxation, but a statement of accountability made both about the dead person and about his or her survivors, including lords. It too enshrined the principle of strict liability stated in 1681 (Lambert v. Bessey): ‘In all civil acts, the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering’.⁴⁸⁹ Sufferers included creditors. This principle remained strong, and in 1812, lawyer G. D. Collinson observed that, where the accused pleaded lunacy or idiocy, English law was stricter on liability in civil than criminal actions. ‘The law makes great difference between criminal prosecutions, which are ad poenam, et in vindictum criminis commissi, and civil suits which terminate in compensation damni illati; and therefore if a non compos commit trespass against the property or person of another, or do him bodily injury, he is compellable to make satisfaction in a civil action.’⁴⁹⁰ Even the irresponsible had responsibilities. Inquest ﬁndings were informed by generalized, rather than speciﬁc, notions of wrongdoing, and by ﬁrm ideas of strict civil as much as criminal liability. Jurors who found wilful self-murder did not abhor its victims, even if they thought that in law, religion, and social practice it was the wrong way to die. Instead, they appreciated what a ﬁnding of felo de se meant for survivors, both positively and negatively. They believed that right could come out of wrong, whether that was in the atonement of corporal punishment (however selectively enforced), ⁴⁸⁹ T. Raym. 421 [83 ER 220]. ⁴⁹⁰ G. D. Collinson, A treatise on the laws concerning idiots, lunatics, and other persons non compotes mentis . . . 2 vols. (London, 1812), vol. 1, 498–9.

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in the discretionary redistribution of mulcts for benevolent ends, or in the circumspect and inclusive distribution of assets to creditors, broadly construed. They recognized the good to the living derived from ‘punishing the dead’. In a society where knowledge of the law was widespread and often deep, it must have been plain that forfeiture was not usually a simple alienation, but could involve a reversion to interested parties and an equitable handling of the suicide’s estate.⁴⁹¹ This was true both for the almoner and other franchisees. The heyday of the felo de se verdict coincided with a period when dealing with debt and credit (especially post mortem) could be problematic, and when resort to lordship was an accepted tactic. The increasingly common ﬁnding of non compos mentis after the Restoration was delivered in the knowledge that the mechanisms triggered by forfeiture were less necessary, or perhaps even desirable, to achieve settlement of an estate. Changing inquest verdicts may even have been a response to legal and political change, rather than evidence of an ‘ascending’ theme in political life. The development occurred against a background of changing ideas about the importance of discretionary outside agency in maintaining order, harmony, and justice rather than about the sanctity of private property. Law too came to discriminate against intervention, and an anonymous case of 24 and 25 CII, conﬁrmed in 27 CII (Rex. v. Aldenham), determined that a verdict of a coroner’s inquest, properly conducted super visum corporis could not be traversed if that verdict was non compos mentis, but it could if the ﬁnding was felo de se.⁴⁹² Around the same time it was established that jurors could not be punished for their verdicts.⁴⁹³ In its heyday, prerogative was, as Lord Keeper Egerton put it of Elizabeth, ‘the chiefest ﬂower in her garland and the principal and head pearl in her crown and diadem’.⁴⁹⁴ ‘Prerogative’ only became an unalloyed instrument of crown policy in religion and ﬁnance under Charles I, and a dirty word during the English Revolution as people began to accept that there could be a difference between the interests of crown and people. By the time Blackstone wrote, he could ask rhetorically whether Elizabeth’s reign should really be seen as ‘those golden days of genuine liberty’: ‘for, surely, the true liberty of the subject consists not so much in the gracious behaviour, as in the limited power, of the sovereign’.⁴⁹⁵ Yet even in 1780 some English lawyers asserted the king’s right to forfeitures of felons of themselves ‘against all the world’, and the prerogative to pardon had, if anything, grown in importance since the sixteenth century.⁴⁹⁶ ⁴⁹¹ Brooks, Law, politics and society, 21–5. ⁴⁹² 1 Ventris 239; see also 278, Holland v. Ellis and 2 Lev. 152, Rex. v. Aldenham. 1 Wms. Saund. 363. Jones, T. 198 (Ripley’s case). 1 Plowden 261. Foster, A report of some proceedings, 266. ⁴⁹³ J. H. Baker, ‘Criminal courts and procedure at common law, 1550–1800’, in Cockburn (ed.), Crime in England , 24. ⁴⁹⁴ Quoted in Hurstﬁeld, Queen’s wards, 333. ⁴⁹⁵ Blackstone, Commentaries, vol. 4, 426. V. Morgan, ‘Whose prerogative in late sixteenth and early seventeenth century England’, Journal of Legal History 5 (1984), 39–64. ⁴⁹⁶ 2 Dougl. 544 (Megit v. Johnson, 1780). Brooks, Law, politics and society, 428.

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In this scheme the normal, apparently punitive pre-Restoration ﬁnding has the same validity as the increasingly normal and apparently more benign postRestoration one. Returning someone felo de se was not disruptive of community, but supportive, creating a framework within which debtors and creditors could work together in pursuit of a more or less agreed settlement of the dead person’s affairs. Ostensibly, coroners’ inquests sat on the narrow issue of responsibility for death. In reality, they decided on the wider social responsibility for its aftermath, signposting possible civil implications and potential solutions. Inquests were one aspect of the centrality of law to early modern communities and their ﬁndings invited different types of involvement with its processes. Non compos mentis verdicts opened up some channels, felo de se others. Neither verdict was a way of nullifying the law, for each manifested its practical ﬂexibility, and each activated different aspects of law and social practice.⁴⁹⁷ Non compos mentis saved forfeiture, but it also dispensed with formal intervention by lords. It unlocked the new range of legal devices that were becoming available: an array of tools suitable to a society that saw settlement less as a communal matter or a shared duty involving a lord than as an individual problem, more closely conﬁned to those immediately affected, and more easily mediated through expectations framed by the letter of the law.⁴⁹⁸ Yet, at the same time, English society was dispensing with lordship and law from the mid-seventeenth century as the ‘great litigation decline’ set in, for there was a growing reluctance to allow institutions to monitor personal interactions.⁴⁹⁹ Two early signs are that the 138th Canon of 1604 turned against apparitors as instigators of church court business, while informants were ‘virtually exiled’ from Westminster courts after 1624.⁵⁰⁰ Legal procedures and outcomes became more transparent and predictable, rendering traditional communal supervision and lordly intervention less necessary. From c.1600 the authority of judicial precedent had been growing, helping to create the idea that reason and consistency should be inherent in decision-making. In Muldrew’s terms a ‘negotiated community’ gave way to a ‘juridical community’ in the seventeenth century, and only much later to the structured predictability of the ‘architectural community’ in the eighteenth century and beyond, by which time litigation and lordship alike were seen as divisive and unacceptable.⁵⁰¹ A verdict ⁴⁹⁷ Green, Verdict according to conscience, xviii–xx, 28–64. ⁴⁹⁸ F. Dabhoiwala, ‘Sex, social relations and the law in seventeenth- and eighteenth-century London’, in Braddick and Walter (eds), Negotiating power, 94–101. ⁴⁹⁹ C. W. Brooks, ‘Interpersonal conﬂict and social tension: civil litigation in England, 1640–1830’, in A. L. Beier, D. Cannadine and J. M. Rosenheim (eds), The ﬁrst modern society (Cambridge, 1989), 357–99, at 386–90. W. A. Champion, ‘Litigation in the burghs: The Shrewsbury curia parva 1480–1730’, Journal of Legal History 15 (1994), 201–22. D. Lemmings, ‘Introduction’, in Lemmings (ed.), British and their laws, esp. 7. Muldrew, Economy of obligation, 239. ⁵⁰⁰ Outhwaite, English ecclesiastical courts, 66. Beresford, ‘The common informer, 221. Barnes, ‘Due process’, 331. ⁵⁰¹ Muldrew, ‘Community and individualism’, 161–6.

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of felo de se was as valuable a legal device as one of non compos mentis, albeit in a different social and political environment. The preponderance of each verdict at different periods marks a different stage in ‘the long-term dialectic of economic individualism and political and philosophical collectivism’ that characterized English society from at least the Middle Ages.⁵⁰² The reason why coroners’ juries could return so many felo de se verdicts prior to the late seventeenth century and so many non compos mentis ﬁndings afterwards is not because the standard of proof of mental state changed, but because the canon required was so persistently low as to allow any interpretation of liability. Suicide was always readily established at inquest. Like adultery and fornication, it was an offence usually committed in secret where circumstantial proof was paramount: the forensic detail in verdicts belies the imprecision of the evidence behind them.⁵⁰³ Insanity became easier to prove in criminal trials, but not until well into the eighteenth century—a development that went against the trend towards a hardening of proof that made it increasingly difﬁcult to gain convictions for offences like witchcraft and infanticide.⁵⁰⁴ For the Tudor and Stuart period ‘inquest and trial jurors believed that only the acutely, patently disturbed lacked responsibility for their actions’.⁵⁰⁵ Criminal insanity defences which depended on suicidal inclinations or attempts on the part of the accused rarely succeeded: they were more likely to be seen as a sign of guilt. The only way of squaring the circle is to argue that it became harder to prove responsibility in suicide cases, whereas in fact inquests opted increasingly for the line that they had evidence of irresponsibility.⁵⁰⁶ Until c.1800 inquests in the north of England tried to be speciﬁc about the duration of any insanity, as civil courts charged with assessing mental capacity had to be. For example, inquests at Berwick-upon-Tweed said Barbara Clark had been out of her mind for six weeks before she drowned herself in 1781 and William Evans (also known as R. Richardson) had been mad for a year before cutting his throat in 1789.⁵⁰⁷ Yet, in almost every other way, coroners’ inquests remained quite distinct from other tribunals. They had the advantage of ﬂexibility and accessibility, but no clear legal deﬁnition to their purpose or set criteria of proof, and they were subject only to procedural supervision.⁵⁰⁸ To this day, coroners’ inquests are not bound by the normal ‘rules of evidence’ used by the English or Welsh constabulary. From a legal point of view it was not suicide that was the odd man out, but the coroners’ inquest. ⁵⁰² Smith, ‘Modernization’, 179. ⁵⁰³ R. Burn, Ecclesiastical law 2 vols (London, 1763), vol. 2, 406. ⁵⁰⁴ D. J. Adamson, ‘Insanity, idiocy and responsibility: Criminal defences in southern Scotland and northern England, c.1660–1830’ (St Andrews University Ph.D., 2004). ⁵⁰⁵ Kesselring, Mercy and authority, 96. ⁵⁰⁶ See, for example, the background provided in the diverse cases and sources in CRO D/LEC/CRI/27/4; NLW Bute C128; NC 7414 (13 November 1818); NC 7415 (20 November 1818); BA 569 (21 November 1818). ⁵⁰⁷ BRO Borough Archives, C14/3–4. ⁵⁰⁸ Fisher, ‘Sudden death’, 212.

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Coroners’ inquests had to do certain things correctly, like view a corpse and clearly state both means of death and location of body in their verdict. Yet they are an extreme version of early modern English tribunals of all kinds in having less deﬁnite procedures and less demanding, or less strictly delineated, levels of proof than their Scottish counterparts.⁵⁰⁹ Jack Langbein reports that standards of proof in English criminal trials remained ‘inchoate’ until the late eighteenth century.⁵¹⁰ The process by which an English criminal court jury determined facts was not scrutinized, whereas in Scotland the bench closely controlled evidence. In Scottish Justiciary Court cases, evidence had to be collected on all aspects of the indictment or ‘dittay’, which was itself a far longer and more complex document than its English assize equivalent. Where assizes had rudimentary pre-trial procedures and sometimes accepted a single witness, the High Court of Justiciary required two independent witnesses to each part of a criminal indictment. From the sixteenth century, Scots accused of serious criminal offences usually had counsel, even if they were poor. This contributed to the different length of trials: an average medieval and early modern English assize case probably lasted no more than twenty minutes whereas between 1587 and 1748 equivalent Scottish criminal trials generally took one or two days; some English executions may have lasted longer than the trials that preceded them.⁵¹¹ It was only from the 1700s, when defence witnesses were allowed, and then from the 1730s, with the introduction of defence counsel, that the administration of justice slowly began to ‘even up’ in favour of the accused, even if counsel was not institutionalized at English criminal trials until 1836; neither development touched coroners’ inquests. 2 . 1 3 C O N C LU S I O N : C H A R I T Y, L AW, A N D LO R D S H I P IN A CHANGING SOCIETY The English state had been centralized since the Middle Ages, using a common law and a national circuit court system to exert close and effective centralized ⁵⁰⁹ C. Crawford, ‘Legalizing medicine: Early modern legal systems and the growth of medicolegal knowledge’, in M. Clark and C. Crawford (eds), Legal medicine in history (Cambridge, 1994), 100–1. M. Gaskill, ‘The displacement of Providence: Policing and prosecution in seventeenth- and eighteenth-century England’, C&C 11, 3 (1996), 341–74. B. J. Shapiro, A culture of fact: England, 1550–1720 (London, 2000). S. Landsman, ‘The rise of the contentious spirit: Adversary procedure in eighteenth-century England’, Cornell Law Review 75 (1990), 564–72. J. H. Langbein, ‘Historical foundations of the law of evidence: A view from the Ryder sources’, Columbia Law Review 96 (1996), 1168–1202. ⁵¹⁰ J. H. Langbein, The origins of adversary criminal trial (Oxford, 2003), 56–7, 261–6. ⁵¹¹ H. Arnot, The history of Edinburgh (Edinburgh, 1779), 488–9. Sheehan, Hingston, and Crowe, Criminal procedure, 1.55. R. B. Pugh, ‘The duration of criminal trials in medieval England’, in Ives and Manchester, Law, litigants and the legal profession, 104–15, esp. 109. J. B. Post, ‘The admissibility of defence counsel in English criminal procedure’, in A. Kiralfy, M. Slater and R. Virgoe (eds), Custom, courts and counsel (London, 1985), 23–32. J. S. Cockburn, ‘Punishment and brutalization in the English Enlightenment’, Journal of Legal History 12, 1 (1994), 155–79. Langbein, Criminal trial, 16–25.

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judicial control over local and corporate liberties.⁵¹² Yet, in another way, it supported diversity and bolstered existing privilege, the complex system of delegated rights creating a patchwork of overlapping jurisdictions that ‘imposed and refracted markedly varying constraints on possibilities of central direction’.⁵¹³ As William Marshall put it when discussing land economy c.1800, it was ‘the fragments and splinters of superiorities, that are found in almost every part of the kingdom, which complicate and impede the management of estates, which stir up jealousies and animosities among men of equal degree’.⁵¹⁴ These competing jurisdictions and rights form the backdrop to many almoner prosecutions for the north of England and Wales, reinforcing from another angle St German’s analysis that overlap between jurisdictions caused confusion, arbitrariness, and uncertainty, rather than the fortunes of one type of court over another.⁵¹⁵ Almoner prosecutions of rival franchise holders and opportunist patrons were the result of crown policy (or its lack) on the granting of rights and privileges for ﬁscal or political reasons. Curiously, the almoner’s greatest enemy was neither mendacious families, self-interested debtors and creditors, competitive lords, venal juries, corrupt coroners or envious common law ofﬁcers, but the crown itself.⁵¹⁶ For their own political and ﬁnancial motives, kings and queens accepted and perpetuated the intricate array of liberties and franchises that had been created in the Middle Ages and continued to operate in the early modern period, especially in the north of England. Legal battles between rival franchise holders, which look on the surface like simple contests over claims to a suicide’s property, were frequently the result of the allocation of political power, and were tied to something larger and more intractable: public jurisdictions in private hands were personal property rights. The almoner was just one of many individuals with an interest in the goods of suicides or in being seen as the right patron to secure them for one or more parties. He also offered one potent solution to the problems of suicidal death, an outcome that was not widely available at common law until the seventeenth century. Star Chamber itself was an important contributor to the developing law on, for example, forgery and fraud, because of the advantage it offered over common law courts ‘in the application of an embryonic substantive law ⁵¹² Smith, ‘Modernization’, 143–4. Campbell, Anglo-Saxon state, 50. ⁵¹³ P. Rock, ‘Law, order and power in late seventeenth and early eighteenth century England’, Annales Internationales de Criminologie 16 (1977), 234. S. Walker, ‘Yorkshire justices of the peace, 1389–1413’, in Braddick (ed.), Political culture, 81–114. ⁵¹⁴ W. Marshall, On the landed property of England, An elementary and practical treatise (London, 1804), 20. ⁵¹⁵ NA E 134/44Eliz/Hil9. Thynne Papers vol. LIV, ff. 8–12 [BL microﬁlm]. Guy, ‘Equitable jurisdictions’, 85. Loades, Tudor government, 201–24. Baker, Laws of England , 1483–1558, 117–24. H. Summerson, Medieval Carlisle: The city and the Borders from the late eleventh to the mid-sixteenth century (Stroud, 1993), 529–30. Jewell, English local administration, 61–8. ⁵¹⁶ Noonkester, ‘Decline of the sheriff’, 682.

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bedevilled by overly rigid statutory provisions’.⁵¹⁷ Almoners worked through equity jurisdictions and prerogative courts to ﬁnd remedies for wrongs and to enforce bonds founded on morality and voluntary association—what Felicity Heal calls ‘mutual amity’.⁵¹⁸ One of the royal almoner’s privileges was to make money from felonies and deodands to spend on charitable projects pro Rege. The main function of the almoner’s intervention in suicide cases was administrative: to help resolve the consequences of what contemporaries thought a bad death and what Foucault called ‘a bad economy of power’ caused by competition over jurisdiction and precedence on the one hand, and asset distribution on the other.⁵¹⁹ Almoner interventions were a way of reordering the ‘economy’ of the nation, understood as the integrated management of material and moral life at household and community level, rather than simply its ﬁnances or political economy.⁵²⁰ Hindle has argued that prosecutions at Star Chamber were of ‘political and symbolic, rather than purely ﬁscal, signiﬁcance to the crown’, and his conclusion is that the monarchy was ‘motivated less by greed than by paternalism’.⁵²¹ By paternalism he means a desire to improve crime detection rates and to assert the crown’s prerogative and its legitimacy. The suicide acted ‘[a]gainst the King in that hereby he has lost a Subject, and . . . he being the Head has lost one of his mystical Members. Also he has offended the King, who has the Government of the People, to take Care that no evil Example be given them’.⁵²² The crown was also more literally paternalist in overseeing the administration of the estates of suicides through its role as ultimate lord: what Chief Justice Fineux called in 1519 ‘the head of justice’.⁵²³ In practice, the handling of suicide in early modern England was neither ‘severe’ nor ‘lenient’, but discriminating and constructive. By contemporary standards, it attempted to be just and fair, appealing not to a complete identity of interest, but to a community of interest under the crown and under God. The rationale is neatly set out by Waugh in a study of thirteenth-century royal wardships and marriages.⁵²⁴ Kings exercised a personal lordship as suzerains, giving them extensive powers of patronage which they delegated to individuals like the Lord Chancellor.⁵²⁵ Reciprocal relations allowed vassals to acquire and preserve property. Thus, ‘royal lordship buttressed the king’s honor and the institutions of royal government while simultaneously helping to integrate the Crown and landed elite into a highly cooperative polity’.⁵²⁶ The king presided ⁵¹⁷ Barnes, ‘Star Chamber and criminal law’, 323. ⁵¹⁸ Heal, Hospitality, 15–17. ⁵¹⁹ Foucault, Discipline and punish, 79. ⁵²⁰ J. Mulvihill, ‘The economies of living in Mrs Gaskell’s Cranford’ , Nineteenth-Century Literature 50 (1995), 337–56. ⁵²¹ Hindle, State and social change, 71. ⁵²² 1 Plowden 261. ⁵²³ Garrett-Goodyear, ‘Tudor revival’, 246. ⁵²⁴ Waugh, Lordship, 3–7. ⁵²⁵ Collinson, A treatise on the laws, vol. 1, 103, 193–4. Jones, ‘English bankruptcy’, 48. ⁵²⁶ Waugh, Lordship, 3.

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over an interlocking set of claims and obligations that touched the most important areas of social, economic, and political life: kinship, property, and clientage. While not devoid of tensions, the relationships focused on shared interests, and there was widespread acceptance of royal lordship, and thus ‘conﬂict was the exception rather than the rule’.⁵²⁷ Waugh argues that Tudor historians have wrongly seen wardship as an ‘anachronistic feudal relic’ that was institutionalized as part of the ‘revolution in government’, but was undermined by subjects who regarded this branch of royal authority as an infringement of their individual or family ‘rights’ to freedom of choice over marriage and their control over property.⁵²⁸ Instead, he believes medieval and early modern families did not think as they do now. Many expectations, tactics, and strategies were shaped by the existence and acceptance of lordship, a framework of mutual understanding and advantage involving ‘the exercise and sufferance of power’ that was only gradually altered by changing social priorities and legal devices.⁵²⁹ Lords closely watched their subordinates, but surveillance was not necessarily harmful because of the obligation to promote, or at least protect, dependants. Central to the nexus was the hope that good lords would not only take, but also give. Waugh helps us understand early modern English suicide. People accepted it was wrong and that, like any other crime, their lords were bound to punish it and entitled to proﬁt from it. For their part, lords from the crown down helped ensure a measure of approval by a discriminating approach to forfeiture and a commitment to the visible use of at least part of the proceeds for charity, broadly construed.⁵³⁰ In short, until alternative means developed and different priorities emerged, the people of early modern England had conﬁdence in the system of forfeiture because it reinforced ideals of consensus and fairness within communities and regularly re-inscribed social norms. The almoner and other franchisees offered law and lordship in support of community during a prolonged period of legal change c.1530–1700. They provided practical ways of sorting out a suicide’s estate, using remedies that lent moral and social authority to material settlement, even if they too grappled with the problems of enforcing obligations without specialty, and even if they could never please everyone. Lordship was essential in buttressing the ‘negotiated community’. With the development of local equity courts, the ﬂourishing of summary justice, and the rise of effective common law alternatives, new mechanisms for establishing trust and ensuring certainty became established within a ‘juridical community’. New ways of making people honest developed, as did different attitudes towards morality in economic affairs. In the heyday of forfeiture, the perceived problem among lawyers (and businessmen and philosophers like Hobbes) was how to ⁵²⁷ Waugh, Lordship, 6, 12. ⁵²⁸ Ibid., 7. ⁵²⁹ Bisson, ‘Medieval lordship’, 759. ⁵³⁰ Some Elizabethan penal statutes speciﬁed that a share of forfeitures should go to charity. Bellamy, Criminal law, 102.

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enforce obligations of any kind: written and sealed agreements were preferred. However, after c.1640 the world was changing, and informal, verbal agreements were more extensively used, an approach encapsulated in the eighteenth-century phrase ‘a man’s word is his bond’.⁵³¹ New forms of action like assumpsit helped to dissolve the medieval idea that actio personalis moritur cum persona: the very point that lordly interventions in suicide had been designed to help resolve.⁵³² The 1604 bankruptcy statute enabled the continuation of proceedings even after the death of the bankrupt.⁵³³ By the end of the seventeenth century, bankruptcy law encompassed all substantial users of debt and credit, and it became possible for creditors routinely to petition Quarter Sessions and other competent courts to assign them the assets of debtors.⁵³⁴ By the early eighteenth century, procedures for handling English insolvency were clearer and more accountable (and they included discharge), though control over commissioners was still limited.⁵³⁵ Attitudes towards insolvency also began to change. An act of 1706 recognized for the ﬁrst time both honest and dishonest, ‘impolitic’ and ‘politic’ bankrupts and created privileges for the former.⁵³⁶ Some of these changes came from the grass roots, but others were led by developments in elite thought. For centuries, Aristotle’s vision of justice had been accepted, focusing on the promotion of informed transaction and on the virtues of voluntarism; it had embraced uncertainty and discretion.⁵³⁷ These scholastic axioms, reﬂected in prevailing ideas of community, were under attack during the seventeenth century, and their diminished acceptability made externally imposed solutions less popular. Some time after the Restoration the crown began increasingly to assign forfeitures, using a warrant under the sign manual to church courts to grant letters of administration to creditors on their presenting a memorial requesting this.⁵³⁸ As in Scotland, a routine, bureaucratic phase emerged that included an end to personal grants of criminal pardons by the crown.⁵³⁹ In the new scheme, royal grants of forfeitures made the memorialist answerable for the debts of the felo de se as well as entitled to movable assets. An example of this ⁵³¹ Brooks, ‘Interpersonal conﬂict’, 393–4. ⁵³² McGovern, ‘Contract in medieval England’, 52, 54. Baker, Laws of England, 1483–1558, 815–16, 872–3. ⁵³³ Jones, ‘English bankruptcy’, 29. ⁵³⁴ See, for example, Lancashire RO QSP/1650/1, QSP/1713/13, QSP/1735/8 and QSP/1738/2 (all from the 1750s). ⁵³⁵ Jones, ‘English bankruptcy’, 49–50. ⁵³⁶ Hoppit, Risk and failure, 20, 23, 25. ⁵³⁷ D. Reid, ‘Thomas Aquinas and Viscount Stair: the inﬂuence of scholastic moral theology on Stair’s account of restitution and recompense’, JLH 29 (2008), 194–5. ⁵³⁸ The reports of the most learned Sir James Saunders, Knt. . . . of several pleadings and cases in the Court of King’s Bench, in the time of the reign of . . . Charles the second 2 vols. (1686. 5th edition based on the 3rd edition of 1799, translated from the French and with added notes, London, 1824), vol. 1, 271a–b. The notes were introduced between the Latin, French and English edition of 1722 and the English edition of 1799, making the timing of the change difﬁcult to determine. 1 Wms. Saund. 271. ⁵³⁹ Carter, ‘Criminal petitions’, 147.

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form of administration comes in Megit v. Johnson (1780).⁵⁴⁰ The crown granted Johnson and others administration of the estate of Ralph Lowe, who killed himself with laudanum in April 1779 while incarcerated in Liverpool gaol, charged with arson and insurance fraud. Deemed to have acted ‘to avoid public justice and disgrace’, he was found felo de se and ordered to be buried in the highway. Lowe’s administrators (directors of the insurance company) sent a memorial to the Commissioners of the Treasury to secure a royal warrant, which in turn was used to obtain letters of administration from the Prerogative Court of Canterbury. Eighteenth-century lawyers regarded it as good practice to grant administration of intestate estates to the largest interest, but only when no kin appeared to accept it, and only with strict provisions, for creditors still had no title in law.⁵⁴¹ As in this case, lawyers were also likely to suggest that a central solution using one of the two provincial church courts was preferable to local registration of probate because of their wider geographical reach—as beﬁtted a society where economic networks were far more geographically extensive than two centuries earlier.⁵⁴² The wider institutional structures of English society were changing in other ways that devalued the discretionary and the personal. Acting ‘for God’s love’ towards the poor, as the almoner and some franchisees had tried to do, was also becoming less of a pressing need as benevolence became more structured and discriminating. During the second half of the sixteenth century, more than twothirds of London citizens gave bequests to charitable causes in their wills, falling to a half in the 1630s and to less than a third by the end of the century.⁵⁴³ Casual benevolence was less necessary because, with rating at its core, the Elizabethan poor law became established across much of England by the mid-seventeenth century. An improved balance between population and resources made poverty less of a concern for both parishes and policy-makers in the late seventeenth century. Discourse changed as well as practice. Hindle talks of ‘the displacement of a clerical chorus of exhortation by a secular calculus of entitlement, a change in register that was reﬂected in the increasing emphasis on the bureaucratic exercise of discretion by the overseer rather than the idiosyncratic use of discrimination by the almsgiver’.⁵⁴⁴ Poor relief became more precisely focused and less personalized. Eighteenth-century doles could pass between individuals, but they were as likely to be organized, institutionalized, and directed from above.⁵⁴⁵ ⁵⁴⁰ 2 Dougl. 542. ⁵⁴¹ Stretch v. Pynn (1752), Cardale v. Harvey (1752), Burroughs v. Grifﬁths and Hall (1753), cited in J. Phillimore, Reports of cases argued and determined in the Arches and Prerogative Courts of Canterbury . . . 3 vols (London, 1833), vol. 1, 36, 179, 552. 2 Lee 573 (Elwes v. Elwes, 1728). ⁵⁴² Outhwaite, English ecclesiastical courts, 97–8. ⁵⁴³ Archer, ‘Charity of Londoners’, 230–1. ⁵⁴⁴ S. Hindle, ‘Exhortation and entitlement: negotiating inequality in English rural communities, 1550–1650’, in Braddick and Walter (eds), Negotiating power, 121. ⁵⁴⁵ Heal, Hospitality, 391–4. D. Valenze, ‘Charity, custom, and humanity: Changing attitudes towards the poor in eighteenth-century England’, in J. Garnett and C. Matthew (eds), Revival and religion since 1700 (London, 1993), 59–78.

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Different religious priorities too served to undermine medieval and early modern notions of charity, understood as a commitment to amicable resolution of conﬂict, the extension of love to enemies as well as friends, and the need to maintain at least a facade of amity. It may be naive to take such professions of principle at face value, but it is anachronistic to see all of them as empty cynicisms, for they were powerful concepts that explicitly underpinned practices. As Bossy observes, the weakening of the idea that society is divided between friends and enemies (and the corresponding rise of the concept of independent actors), reduced the ideal and practice of charity—which impacted on the force of Christianity.⁵⁴⁶ Because charity meant less to individual salvation after the Reformation it may also have lost some of its force in creating practices of community, which were increasingly difﬁcult to maintain in the face of fragmented Protestantism.⁵⁴⁷ The change was manifested in different religious practices after the early seventeenth century, like the decline of exclusion from communion for ignorance or being out of charity with neighbours. Weakening religious inﬂuence occurred by a roundabout route and came from within religion rather than from without. Finally, there was direct secularization, with the growing assumption from the sixteenth century that secular authorities could, and should, solve certain legal problems which had formerly been ecclesiastical provinces, including debt and credit.⁵⁴⁸ Ethical imperatives became less clearly enunciated and more ambiguous, but the extent of other ideological changes should not be exaggerated. Historians of political thought have questioned the growing emphasis on liberty and the rights of private property (‘possessive individualism’) that were once attributed to late seventeenth-century thinkers like Locke.⁵⁴⁹ In important ways the law still supported the primacy of the group over the individual, whether in protection of creditors from a fraudulent debtor, or in shielding the assets of a family against the depredations of a mad individual member through commissions of lunacy.⁵⁵⁰ Personal responsibility too was paramount. The goods of accused or convicted felons could still be seized to pay for them to be taken to gaol and for their keep while there.⁵⁵¹ It was only with David Hume that people were truly encouraged to retreat from the ideals of trust and community, and to embrace those of individual self-interest, personal happiness, and private self-restraint.⁵⁵² ⁵⁴⁶ Bossy, ‘Postscript’, 288. ⁵⁴⁷ Wrightson, ‘Decline of neighbourliness’, 39–40. ⁵⁴⁸ Wunderli, London church courts, 137. ⁵⁴⁹ C. B. Macpherson, The political theory of possessive individualism (Oxford, 1962). Among critiques of Macpherson, see R. Tuck, Natural rights theories: Their origin and development (Cambridge, 1979), 2–3. J. G. A. Pocock, Virtue, commerce, and history: Essays on political thought and history, chieﬂy in the eighteenth century (Cambridge, 1985), 59–71. ⁵⁵⁰ Hoppit, Risk and failure, 19–21. A. Suzuki, Madness at home: The psychiatrist, the patient, and the family in England, 1820–1860 (London, 2006). ⁵⁵¹ E. Axon, Manchester sessions vol. 1 (Manchester, 1901), xiii. ⁵⁵² Muldrew, Economy of obligation, 328–31.

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Yet even at this late date (and after it) Margot Finn warns that the idea of economic beings as autonomous individuals driven by pursuit of gain, minded only of a Weberian ‘calculability of chances’, and constrained only by impersonal instruments like contracts, was slow to develop. Social and moral values remained part of much ﬁnancial calculus, embedded in practices, rather than reduced to mere economic utility.⁵⁵³ In Muldrew’s terms, the architectural community was slow to build itself. Thinkers continued to stress the commonality of mankind, and they sought to understand human motivation, more effectively to promote social well-being rather than individual happiness.⁵⁵⁴ That a fundamentally Christian ideal of charity could be tailored to changing ideologies explains why it was so enduring. It persisted into the eighteenth century, when charity was still seen as a central—perhaps even a mandatory—element of Christian observances. More generally, Andrew concludes that ‘the vision of a Christian community, tied together by gratitude and acts of kindness, by brotherly feelings in Christ’s name, continued to occupy an important place in social thought’.⁵⁵⁵ Driven by Matthew 7:12 and 22:39, and driven home by catechism and sermons, Christian love continued to shape human association in accordance with divine precepts. ⁵⁵³ M. C. Finn, The character of credit: Personal debt in English culture, 1740–1914 (Cambridge, 2003). S. E. Brown, ‘ ‘‘A just and proﬁtable commerce’’: Moral economy and the middle classes in eighteenth-century London’, JBS 32 (1993), 305–32. ⁵⁵⁴ M. Poovey, A history of modern fact: Problems of knowledge in the sciences of wealth and society (Chicago, 1998), 148–9. ⁵⁵⁵ D. T. Andrew, Philanthropy and police: London charity in the eighteenth century (Princeton, 1989), 12–22. D. T. Andrew, ‘On reading charity sermons: Eighteenth-century Anglican solicitation and exhortation’, Journal of Ecclesiastical History 43 (1992), 581–91.

3 Burial Practices 3 . 1 I N T RO D U C T I O N : D E S E C R AT I O N A N D D E N I A L I N T H E BU R I A L O F S U I C I D E S Bodily and patrimonial punishments against suicides came out of the same deed, but they were not necessarily part of a single penalty.¹ A judgment at Serjeants’ Inn (1533) allowed that a man who cut his throat and repented before dying ‘est excuse vers nostre Senior dieu’, but he was still a felo de se and had committed an ‘offence vers le roy et sez leyes’.² The legal status of punishments differed too. Forfeiture of goods and chattels was formally valid at law across both Scotland and England. This made it distinct from bodily sanctions which, in their ofﬁcial manifestations, arose from, and were implemented through, ordinances of particular jurisdictions, and were therefore local rather than national: what English law called ‘customary’. They were legal in being imposed by recognized ofﬁcials, but they lacked speciﬁc statutory authority. ‘Popular’ sanctions against bodies were either parallel with, dependent on, or wholly separate from these local jurisdictions: para-, infra- or extra-judicial. At the start of Chapter 1 a passage from a sermon of 1786 summarized what could be done to suicides. The passage correctly acknowledged geographical variations in punishments, notably in the rituals surrounding burial. In both Scotland and England, suicides might be denied burial in a churchyard; some were allowed in the churchyard, but relegated to its less desirable north side; others were given a normal if discreet burial. In both countries some sort of profanation might be visited on the corpse.³ However England seems to have been unusual in staking the bodies of self-murderers.⁴ Scots did not stake ¹ J. Goebel, Felony and misdemeanor: A study in the history of English criminal procedure (London, 1937). ² J. H. Baker (ed.), The reports of Sir John Spelman 2 vols. (London, 1977–8), vol. 1, 140–1. ³ J. E. Vaux, Church folklore: A record of some post-reformation usages in the English church, now mostly obsolete (London, 1894), 153, lists possible reasons for the spatial preference. K. D. M. Snell, ‘Gravestones, belonging and local attachment in England, 1700–2000’, P&P 179 (2003), 108–9. ⁴ For Germany R. van D¨ulmen, Theatre of horror: Crime and punishment in early modern Germany translated by E. Neu (Oxford, 1990), 88–9, only mentions impalement as an accompaniment to burial alive, an unusual ﬁfteenth and early sixteenth century punishment usually reserved for women; it is mentioned in the 1532 Carolina for women who killed their children. The reason for staking

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suicides, and for a time the treatment of corpses in Scotland was more in line with continental practice than English. Punishments such as the dragging and gibbeting of suicides, referred to in the sermon, were unusual in England. They had, however, long been enshrined in legal codes and practice in Europe, which is where many of the Scottish legal elite gained their education until well into the seventeenth century.⁵ This chapter covers incidental observances surrounding the taking of a suicide’s corpse to its grave. However, its main focus is on the place and style of burial, its location, and associated rites. It discusses commentary on profane burial by contemporaries, antiquarians, and historians, before assessing evidence of its extent for what Paul Barber calls one sub-set of ‘the dangerous dead’.⁶ Separate chapters on England and Scotland lay out how and why suicides were buried in certain ways, paying close attention to the law, and to the social and religious context of burial; cautious opinion is offered about the frequency of profane burial. The options available for dealing with the righteous and unrighteous dead are laid out, with examples of micro-political interactions that determined what was done. The next chapter of the book explores other ‘corporal punishments’ against the corpse prior to its ﬁnal disposal. Some arbitrary distinctions need to be made, with the result that exhumation and reburial appear in both this chapter and the next.

3 . 2 C O M M E N T O N T H E P R EVA L E N C E O F P RO FA N E BU R I A L I N E N G L A N D F RO M T H E S I X T E E N T H TO T H E T W E N T I E T H C E N T U RY For English suicides, MacDonald and Murphy suggest, ‘Ritual burials seem normally to have been carried out’.⁷ At one level all burials involve ritual, since the living mark the passing of the dead not only with a rite or ceremony that denotes decease, but also with other collective, repetitive, and standardized actions—a set form of rites—which together have social and spiritual signiﬁcance.⁸ Thus one should ask what assemblage of rites or practices or ceremonies was employed, how often, upon whom and whether the observances were agreed or contested. MacDonald and Murphy tell us that burial of felones de se occurred outside consecrated ground, often at a highway, crossroads, or boundary, and it usually in such cases may have been to ensure that death occurred and that it was relatively painless—like strangling a witch before burning. J. R. Ruff, Violence in early modern Europe (Cambridge, 2001), 153. Langbein, Torture, 27. However, see also F. Str¨om, On the sacral origin of the Germanic death penalties (Stockholm, 1942), 210–14. ⁵ Sheehan, Criminal procedure, 1. ⁶ P. Barber, Vampires, burial, and death: folklore and reality (London, 1988), esp. 55–6. ⁷ MacDonald and Murphy, Sleepless souls, 78. ⁸ E. Muir, Ritual in early modern Europe (Cambridge, 1997), 3–6.

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involved desecration of the corpse by driving a stake through it. They argue that such profane burial was ‘routinely ordered’ prior to 1823 (4 Geo. IV c.52) and was the ‘customary ritual’ for suicides, even if they devote an appendix to providing contrary evidence.⁹ That appendix highlights the source problems in generalizing about the burial of suicides that this chapter will address in showing that there was never a generalized treatment, but instead an enduring selectivity in how suicides’ bodies were treated. Contemporary commentators might seem to provide the surest source of generalizations about burial practices, but it is immediately clear that early modern writers disagreed about what was normal, and that their commentary was at best indiscriminate or illustrative, and at worst incorrect. One of the main handbooks for seventeenth-century judges, Michael Dalton’s Countrey justice, maintained of people who killed themselves other than because of grief or inﬁrmity: ‘their goods are conﬁscated, and their dead bodies (for the terrour of others) are drawne out of the house, &c. with ropes, by a horse, to a place appointed for punishment or shame, where the dead bodie is hanged upon a Gibbet: And none may take downe the bodie, but by the authoritie of the magistrate, &c. vide Fulbecke 90’.¹⁰ Careful reading of legal texts is needed here, lest we imagine that Dalton was generalizing about English common law practices. The text cited, William Fulbecke’s Parallele or Conference of the civil law, the canon law, and the common law of this realme, was set out as dialogues between three men, gnostic of different legal codes. In full, the relevant section of Fulbecke’s text on culpable suicides before the civil law (spoken by ‘Codicgnostes’, a doctor thereof) reads as follows: their goods are conﬁscated, and their bodies though they be dead, and so impassible, and free from punishment, yet for the terror of them that liue, they are thus ordered. The body is drawne out of the house, wherin the man did kil himselfe, with ropes, not by the dore, but through some hoal or pit made under the threshold of the dore, because it is unworthy to be brought out the same way, which the man whilest he liued, did use: and hee is drawne by a horse to the place of punishment or shame, where he is hanged upon a gibbet, and none may take the body downe, but by the authoritie of the magistrate: and none may weare any mourning roabe for such an offendour.¹¹

Fulbecke’s account of this topic is unusually full, but his comparisons lack spatial or temporal precision, and this may explain why some later writers and historians have failed to identify the distinctions in treatment of the corpses of suicides in different legal codes.¹² His approach was not even normative here, ⁹ Ibid., 15, 48, 357–9. ¹⁰ Dalton, Countrey justice, 234–5. ¹¹ W. Fulbecke, A parallele or conference of the civill law, the canon law, and the common law of this realme of England: Wherein the agreement and disagreement of these three lawes, and the causes and reasons of the said agreement and disagreement, are opened and discussed (London, 1601), f. 90. ¹² Coquillette, Civilian writers, 71–9.

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but illustrative of the way learned Roman law infused common and customary law. A later compendium of civil law quoted Dutchman Antonius Matthaeus’ De criminibus (1644) that ‘by Custom and practice, the dead Bodies of those who have been guilty of Suicide, are treated ignominiously, either by hanging on a Gallows, or by burying the Body under it’.¹³ The English seem to have done neither, but the Scots did. Charles Moore cited Fulbecke and quoted Edward Umfreville’s Lex Coronatoria of 1761 as an example of reluctance to use normal entries and exits to move a suicide’s body from a building.¹⁴ However, the passage implies that this was no longer done in England as abroad: a case from Danzig (Gdansk, Poland) is reported.¹⁵ Even when it appears prescriptive, commentary was designed to show what could happen, rather than what did. The normal common law punishment, as outlined by Fulbecke (and rehearsed by Dalton and others) was simple forfeiture; canon law pronounced on the burial service; other sanctions were based on local usages.¹⁶ Other contemporary comments may mislead the historian by generalizing from local examples. In his Description of England (1577), the Essex cleric and antiquarian William Harrison wrote: ‘Such that kill themselves are buried in the ﬁeld with a stake driven through their bodies’.¹⁷ John Weever’s ‘discourse of funerall monuments’ (1631) includes the generalization: ‘we use to bury such as lay violent hands upon themselves, in or neare to high wayes, with a stake thrust through their bodies, to terriﬁe all passengers, by that so infamous and reproachfull a buriall; not to make such their ﬁnall passage out of this present world’.¹⁸ However (despite the claim to cover Britain and Ireland—and his Lancashire origins), the detailed exposition in his monumental tome covers only the dioceses of Canterbury, Rochester, London, and Norwich. Similarly, the Swiss traveller C´esar de Saussure’s summary of suicide punishments (inaccurate regarding forfeiture of land, which in England required a process of attainder¹⁹) was based on his experience of London—or what he had heard of it. De Saussure wrote in 1726: ‘The penalty of the law consists of the conﬁscation of money and lands and in the burying of the corpse with a stake thrust through it, and without ¹³ [T. Wood], A new institute of the imperial or civil law (London, 1704), 269, citing A. Matthaeus, De criminibus (1644), 5.1.11. ¹⁴ Moore, A full inquiry, vol. 1, 304n. ¹⁵ Ibid., 312. J. Grimm, Deutsche Rechtsaltert¨umer 2 vols (Leipzig, 1899), vol. 2, 327. Vandekerckhove, On punishment, 45–6. ¹⁶ Fulbecke, Parallele, f. 93. Dalton, Countrey justice, 235. Fenger, ‘Selvmord’, 63–5. ¹⁷ Harrison’s description ﬁrst appeared in R. Holinshed, The ﬁrste[-laste] volume of the Chronicles of England, Scotlande, and Irelande: Conteyning, the description and chronicles of England, from the ﬁrst inhabiting vnto the conquest . . . (London, 1577), 185. His statement that English felons might be hanged alive in chains seems to have no justiﬁcation. Ibid., 184–5. ¹⁸ J. Weever, Ancient funerall monuments within the united monarchie of Great Britaine, Ireland, and the ilands adiacent . . . (London, 1631), 22. ¹⁹ D. C. Brown, ‘The forfeitures at Salem, 1692’, William and Mary Quarterly 3rd series 50 (1993), 87.

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a bier, at the crossing of two high roads’.²⁰ Examples of staking usually cited by historians are from the south-east too.²¹ Returning to the lawyers affords more precision in understanding burial practices. Blackstone followed the drift of earlier understandings when he wrote in the 1760s of forfeiture (of movables) and ‘an ignominious burial in the highway, with a stake driven through his body’ as the only punishments for this unique felony, though some saw the latter as an ‘unsupported assertion’ rather than being grounded in law.²² Writing in 1790, Moore disagreed in a number of ways. He claimed (correctly) that the coroner’s warrant only required ‘that the body shall be buried in some public highway’.²³ His further opinion was that staking ‘is local, not general’.²⁴ Giles Jacob’s version of this was that: ‘By custom and practice, the body of a felo de se is buried in the highway, with a stake driven through the body’.²⁵ In short, contemporary comment and legal texts reveal disagreement over what was done, possibly because they were intended to be rhetorical or argumentative, rather than purely descriptive. There is no obvious lesson to be learned from these early writers about change over time, but their analyses do imply variation over space. If contemporary writers offer no conclusive guide to burial practices for suicides, nineteenth-century ethnographers are even less sure. Folklorists carried on both oral and written or printed tradition, and their compendia give the historian access to a wealth of oral evidence that may not be replicable from written sources, especially in explaining the meaning of actions. Against this must be set their fascination with the unusual rather than the orthodox, their determination to ﬁnd certain things in their pursuit of cultural taxidermy, and their reliance on testimony about beliefs and practices that can be difﬁcult to verify in other sources.²⁶ Folklorists were not immune to literary inﬂuence and, while a valuable source, they are unreliable about how generalized particular practices were and, on occasion, about whether uses happened at all. Their accounts might be moulded around literary tropes such as the Scottish one ²⁰ C. de Saussure, A foreign view of England in the reigns of George I & George II translated and edited M. Van Muyden (London, 1902), 201. ²¹ W. Rendle, ‘A suicide’s burial’, Notes and Queries 7th series, 3 (1887), 359. The example is from ‘Exchequer Depositions, 3 & 4 James II’, and relates to Kent. T. R. Forbes, Chronicle from Aldgate: Life and death in Shakespeare’s London (London, 1971), 165, 169. R. L. Greaves, Society and religion in Elizabethan England (Minneapolis, 1981), 535. MacDonald and Murphy, Sleepless souls, 137–8, 213, 358. ²² Blackstone, Commentaries, vol. 4, 190. The claim is that of Sir James MacKintosh in May 1823. Parliamentary debates new series IX, col. 415. ²³ Moore, A full inquiry, vol. 1, 321. ²⁴ Ibid., 315–16 and n. Vandekerckhove, On punishment, 57, 62, ﬁnds some examples of piercing the body on the continent, which he interprets as a symbolic form of execution. Guernsey was of the opinion that staking ‘was an ancient custom brought into England by the Saxons and did not prevail in all parts of England’. Guernsey, Suicide, 21. ²⁵ Jacob, The law-dictionary, ‘felo de se’. ²⁶ A. S. Bell (ed.), The Scottish antiquarian tradition (Edinburgh, 1981).

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originated (perhaps fabricated) by Walter Scott in the 1800s and perpetuated in James Hogg’s 1824 The private memoirs and confessions of a justiﬁed sinner: written by himself .²⁷ This involved dragging the corpse and a lonely burial. England had different tropes. In The old curiosity shop (1840), Dickens has the coroner ordering Quilp to be ‘buried with a stake through his heart in the centre of four lonely roads’. Yet he goes on to suggest that in reality ‘this horrible and barbarous ceremony had been dispensed with’ and the body had been given up to (or seized by) Tom Scott.²⁸ Reading Dickens raises the possibility that ordering profane burial was a token of condemnation, rather than necessarily a literal description of what was to be done. If reading one folklorist can provoke a sense of uniqueness, intimacy, and fascination, reading many conveys an impression of derivation, sameness, and vagueness. Late-nineteenth- and twentieth-century criminologists took a more measured approach to practices of punishment. They differ on whether profane burial was the norm, though most accepted both local variation and selectivity by case. In his 1883 history of the criminal law, J. F. Stephen opined that staking came out of customary usage.²⁹ ‘Customary’ here is legally technical rather than simply a reference to the way things were usually done: custom belonged to speciﬁc people in speciﬁc localities, for if it was general it would be the common law.³⁰ This was ‘custom and practice’ as Jacob meant it. Leon Radzinowicz seems to suggest that staking and crossroads burial were for offenders sentenced to death, but he also provides examples to show that neither practice was universal for convict suicides.³¹ The cases cited by Radzinowicz, involving the exhibition of the corpses of criminals who had died by their own hand, all date from the late eighteenth and early nineteenth century, and may again be examples of historically particular rather than generalized uses.³² ²⁷ J. Hogg, ‘A Scots mummy’, Blackwood’s Edinburgh Magazine 14 (August 1823), 188–91. Hogg seems to acknowledge this as a fabrication. P. D. Garside (ed.), The private memoirs and confessions of a justiﬁed sinner (Edinburgh, 2001), 169. A. Mitchell, ‘On various superstitions in the north-west Highlands and Islands of Scotland, especially in relation to lunacy’, Proceedings of the Society of Antiquaries of Scotland 4 (1860–2), 251–88. S. Grieve, The book of Colonsay and Oronsay (Edinburgh, 1923), 344. T. Wilkie, ‘Old rites, ceremonies, and customs of the inhabitants of the southern counties of Scotland’, History of the Berwickshire Naturalists’ Club 23 (1916–18), 50–146. J. Brown, The history of Sanquhar (Dumfries, 1891), 19. ²⁸ C. Dickens, The old curiosity shop [Master Humphrey’s clock] (London, 1840–1), 218–19. Novelist Thomas Hardy’s noted examples are quoted in C. Gittings, Death, burial and the individual in early modern England (London, 1984), 72–3. ²⁹ J. F. Stephen, A history of the criminal law of England 3 vols. (London, 1883), vol. 3, 105. L. Radzinowicz, A history of English criminal law and its administration from 1750. Volume 1: The movement for reform (London, 1948), 213–20. ³⁰ E. Coke, A commentary on Littleton (London, 1628), 110. A. C. Loux, ‘The persistence of the ancient regime: custom, utility, and the common law in the nineteenth century’, Cornell Law Review 79 (1993–4), 185. W. Lyndwood, Provinciale, (seu constitutiones Angliae) (Oxford, 1679), 178, allowed that there could be ‘a general custom of any province, and likewise of any city, territory, or place’. ³¹ Radzinowicz, History, 195–9. ³² Ibid., 196 n8, 197–8.

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Modern historians concur that punishments were selectively enforced, and they have made suggestions about changes over time. Medievalist Christopher Daniell believes that staking was infrequent until the end of the ﬁfteenth century, but ‘not uncommon’ in the sixteenth century.³³ The earliest documented crossroads burial of a suicide comes from Suffolk in 1510 when the superior of Butley Priory hanged himself, though there are examples of boundary burial from the tenth and eleventh centuries that may be of the deviant dead.³⁴ This Suffolk example should be seen alongside the marked increase in both designated crimes and speciﬁed punishments that began with the early Tudors and continued until the end of the sixteenth century, a topic discussed in depth in Chapter 4.³⁵ Against the notion that the sixteenth century was the heyday of profanation, Ralph Houlbrooke’s opinion is that burial in the highway was more common after c.1700, when the rapid increase in non compos mentis verdicts made it more important to visit exemplary punishment on the few responsible suicides.³⁶ Houlbrooke’s further opinion is that the Church of England did not concern itself much with other questionable Christians, taking little interest in the burial of unreconciled excommunicates except at periods of heightened religious awareness or conﬂict such as the 1660s or the 1680s.³⁷ A similar politico-religious effect seems evident in the prosecution or observation of all types of irregular burial. More generally for the early modern period, Wil Coster believes that policies of exclusion against felons, suicides, the unbaptized and Catholics ‘were far from universally applied’.³⁸ Keith Thomas’ view that staking was the ‘legally required method of burial for suicides until 1823’ is incorrect.³⁹

3 . 3 BU R I A L A N D T H E L AW I N E N G L A N D : C O N S T R A I N TS O N C L E RG Y A N D PE O P L E The previous section outlined commentary on burial practices, but what were the formal constraints on how a body could be treated? The common law of England ³³ C. Daniell, Death and burial in medieval England, 1066–1550 (London, 1997), 106. ³⁴ A. Reynolds, ‘Burials, boundaries and charters in Anglo-Saxon England: a reassessment’, in S. Lucy and A. Reynolds (eds), Burial in early medieval England and Wales (London, 2002), 181–3. S. Lucy and A. Reynolds, ‘Burial in early medieval England and Wales: Past, present and future’, in Ibid., 21–2. S. Lucy, The Anglo-Saxon way of death: Burial rites in early England (Stroud, 2000), 148–9. ³⁵ Kesselring, Mercy and authority, 25–45. ³⁶ Houlbrooke, Death, 336. ³⁷ Ibid., 335–6. D. Cressy, Travesties and transgressions in Tudor and Stuart England: Tales of discord and dissension (Oxford, 2000), 133–4, adds the late 1620s and 1630s to the list of sensitive periods. ³⁸ W. Coster, Family and kinship in England, 1450–1800 (London, 2001), 85. J. Addy, Death, money and the vultures: Inheritance and avarice, 1660–1760 (London, 1992). ³⁹ K. Thomas, Religion and the decline of magic (London, 1971), 595. Thomas is in good company. T. R. Forbes, Surgeons at the Bailey: English forensic medicine to 1878 (London, 1985), 173.

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was brief and simple about the burial of the dead: ‘Every person is entitled to be buried in the church-yard of the parish where he dies’, subject to the payment of the usual fees. Burial in another parish was subject to permission, but the mode of burial was an ecclesiastical cognizance.⁴⁰ The burial of suicides receives little more attention in canon law. Because it was based on published rubrics that codiﬁed papal pronouncements and the decisions of church councils on matters of theology and morality binding on all Christians, canon law was more homogeneous and clearer than the hybrid ecclesiastical law (actually bastardized civil law) that emerged in the Middle Ages to govern areas such as succession and probate and endured until the mid-nineteenth century.⁴¹ Yet even canon law was not absolutely clear on handling suicides. None of the ecclesiastical statutes of the Middle Ages mentions the interment of self-murderers, and the church had nothing new to say on the subject between c.1000 and 1662.⁴² A nineteenth-century legal compendium cited pre-Reformation proscription: ‘Concerning those who by any fault inﬂict death upon themselves, let there be no commemoration of them in the oblation . . . nor shall their corpses be carried unto the grave with psalms . . . if any shall voluntarily kill himself by arms, or by any instigation of the devil, it is not permitted that for such a person any masses be sung’.⁴³ By omission, this implies that the place of burial is the same as for other dead, but that the service should be truncated or omitted altogether. Early modern injunctions were more explicit on place of burial. A Henrician canon restated that clergy were not to bury suicides ‘in their churches or churchyards, and that if they have in fact buried such people, they shall throw their remains out of the church or churchyard at the command of their ordinaries’.⁴⁴ By the 68th Canon (1603), the clergy could not refuse or delay burial of corpses, brought to the church or churchyard after ‘convenient warning’, ‘according to the form of the book of common prayer’.⁴⁵ They could, however, decide on how to bury, as at Thirsk on 23 July 1603 when John Bradley was buried ‘non per ministrum having drowned himselfe’.⁴⁶ After the Restoration, ⁴⁰ Patten v. Castleman (1753) cited in Phillimore, Reports of cases, vol. 1, 391n. C. Petersdorff, A practical and elementary abridgment of the cases argued and determined in the courts of King’s Bench, Common Pleas, Exchequer . . . [1660–1824] 20 vols (London, 1827), vol. IV, 769n. Rex v. Coleridge, 2 B. & A. 806; 1 Chit. 588. ⁴¹ R. H. Helmholz, ‘Legitim in English legal history’, University of Illinois Law Review (1984), 659–74. P. Stein, The character and inﬂuence of the Roman civil law (London, 1988), 210–14. D. M. Owen, The medieval canon law: Teaching, literature and transmission ( Cambridge, 1990), 43. ⁴² Daniell, Death and burial, 105. ⁴³ Petersdorff, Abridgment, vol. IV, 768n. ⁴⁴ G. Bray, Tudor church reform: The Henrician canons of 1535 and the Reformatio Legum Ecclesiasticarum ( Woodbridge, 2000), 35 (canon 10.12). For examples of removals, see M. Aston, ‘Death’, in Horrox (ed.), Fifteenth-century attitudes, 217, and N. J. G. Pounds, A history of the English parish: The culture of religion from Augustine to Victoria ( Cambridge, 2000), 428. ⁴⁵ G. Bray, The Anglican canons, 1529–1947 (Woodbridge, 1998), 359. ⁴⁶ J. Parker (ed.), The parish register of Thirsk in the county of York, North Riding (Leeds, 1911), 55.

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ceremonies in which the clergy had a central role were reafﬁrmed. In the reworded version of the 68th Canon issued in 1662 (sanctioned by statute 14 C. II c. 4) they were legally barred from reading the ofﬁce of burial over suicides for ‘they are supposed to die in the commission of mortal sin, and in open contempt of their Saviour and His precepts; to have renounced Christianity; to have unchristianized themselves; that is the view which the law takes of the persons who are self-murderers.’ Anyone buried in a churchyard was entitled to have the burial service read over them, but as the clergy were prohibited from performing this rite on certain categories these could not be buried in a churchyard. The performance deﬁned who could be buried rather than the act of suicide directly: a sign that liturgy was coming increasingly to deﬁne Anglicanism and the place of its clergy.⁴⁷ The situation was seemingly plain by 1662, and the ﬁrst edition of Richard Burn’s Ecclesiastical law (1763) has very little to say about the 68th Canon as it relates to suicides, other than to clarify that it applied to those ‘who have done it voluntarily, and consequently have died in the commission of mortal sin’.⁴⁸ However, debate continued, thanks to the existence of two parallel and equally robust common and canon law codes. For example, what was to be done about those judged non compos mentis? Tendentious ‘guides’, like the highchurch Anglican Charles Wheatly’s much-reprinted early-eighteenth-century commentary on the Book of Common Prayer, recognized the exception of those lacking understanding, but posited provocatively that the rubric made ‘no Exception in favour of those who kill themselves in Distraction’.⁴⁹ Arguably the most inﬂuential liturgical scholar of his generation, Wheatly strongly defended the clergy’s right to deﬁne what was sinful, as well as fending off what he saw as unwarranted ‘state’ interference.⁵⁰ An example of discretion that may have owed something to his stance was exercised on Ralph Wood, ‘who hanged himself being Lunatick[,] buried on the North side of the Church [of Ashton-under-Lyne] without Bell, Book, or parson’ on 12 May 1739.⁵¹ Wheatly took no prisoners. He treated coroners as corrupt ‘wretches’ and their burial warrants as permissive certiﬁcates rather than obligatory instructions. Inviting his readers to ridicule the notion that a coroner was qualiﬁed to pronounce on the sense of a rubric, he asserted that in any case inquests ‘are not sworn to be charitable, but to be just’. Concluded Wheatly: ‘there is no reason, because a Coroner prostitutes his Oath, that the Clergy should be so complaisant as to prostitute their Ofﬁce’.⁵² Not all clergymen saw coroners’ verdicts in this way. Rev. Francis Ayscough’s published sermon of 1755 had rectors giving in to an inquest’s judgment of non compos mentis. ‘The doubting Clergyman may, ⁴⁷ D. Spaeth, The church in an age of danger: Parsons and parishioners, 1660–1740 (Cambridge, 2000), 200. ⁴⁸ Burn, Ecclesiastical law, vol. 1, 192–3. ⁴⁹ Wheatly, Book of Common Prayer, 468–9. ⁵⁰ DNB. ⁵¹ Bowman, Ashton-under-Lyne, 176. ⁵² Wheatly, Book of Common Prayer, 469–70.

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and must, after such a Verdict, obey the Law and administer Christian Burial to the Wretch, who has made a most unchristian End.’⁵³ For Ayscough, clergy could not question a common law judgment—the verdict of a coroner’s inquest—but they had latitude within the canon law to provide a certain type of service to suicides. Clergy could not traverse a coroner’s verdict and burial order by, for example, treating a person ‘found drowned’ as a felo de se, for to do so would be against the common law.⁵⁴ When he wrote in 1790 Charles Moore distanced himself from Wheatly’s ‘severe’ stance, accepting, like Ayscough, that clergy had to abide by the common law.⁵⁵ In 1809 Sir John Nicoll’s judgment in the case of Kemp v. Wickes found it the duty of parish clergy to bury all Christians dying within their parishes. This did not include the unbaptized, excommunicates, and suicides, ‘who are not Christians at all’.⁵⁶ The Church of England’s position was both weakened and strengthened by the earlier case of Middleton v. Crofts, heard before King’s Bench in 1736, which established that laity were not subject to (new) canon law that had not been ratiﬁed by Act of Parliament or that did not enshrine ‘ancient usage and law of the church of England’, but the clergy were.⁵⁷ The church was diminished because in earlier centuries no one had seriously questioned whether the canons should apply to all Christians, but increased through the reinforcement of clerical obligation.⁵⁸ It was not until 4 Geo. IV c. 52 that a law ordered the remains of persons, against whom a ﬁnding of felo de se was had, to be interred privately in the churchyard or burial ground of the parish at night, and no Christian rights of burial were to be performed over them. Yet, as late as 1833, the rector of East Horsley (Surrey) wrote a pamphlet defending his refusal to read the burial service over a suicide found lunatic by an inquest.⁵⁹ The coroner’s verdict of insanity was found to be permissive rather than binding, and the clergy had the right to decide where in the churchyard the corpse would lie and also on ⁵³ F. Ayscough, A discourse against self-murder, preached at South-Audley-Chapel, January the 12th , 1755 (London, 1755), 14–15. This was Guernsey’s reading of the status of coroners’ verdicts, but they became binding through ‘long custom or express recognition of the tribunals of the common law’. Guernsey, Suicide, 25. ⁵⁴ J. B. Little, The law of burial (London, 1888), 8. Burn, Ecclesiastical law, vol. 1, 266. Cooper v. Dodd (1850). 2 Rob. Ecc. Rep. 270. ⁵⁵ Moore, A full inquiry, vol. 1, 309n. ⁵⁶ 3 Phill. Ecc. 273. E. Maddy, Digest of cases argued and determined in the Arches and Prerogative Courts of Canterbury . . . (London, 1835), 70. ⁵⁷ 2 Atk. 650. G. R. Bush, ‘Dr Codex silenced: Middleton v. Crofts revisited’, JLH 24 (2003), 23–58. ⁵⁸ R. H. Helmholz, ‘The canons of 1603’, in N. Doe, M. Hill and R. Ombres (eds), English canon law (Cardiff, 1998), 23–35. ⁵⁹ A. P. Perceval, A clergyman’s defence of himself, for refusing to use the ofﬁce for the burial of the dead over one who destroyed himself, notwithstanding the coroner’s verdict of mental derangement (London, 1833). See also the coroner’s reply: A few leading facts, in defence of truth & character . . . (Godalming, 1833). R. Taylor, A statement of the circumstances under which a clergyman refused to read the burial service over an individual who had committed suicide in his parish (London, 1832).

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the form of burial. The 1823 act had, in fact, speciﬁed as much by stating that it did not alter any other ‘laws or usages relating to the burial of ’ felones de se.⁶⁰

3 . 4 E N G L I S H BU R I A L P R AC T I C E S : D E A L I N G S E L E C T I V E LY W I T H T H E D A N G E RO U S D E A D The co-existence of common and canon law traditions explains some differences in understandings of what it was legal to do with suicides. However, the tensions between them also reﬂect underlying ambiguities in, and contests between, attitudes towards suicides among more than just lawyers, magistrates, and clergy. Like normative comment, legal texts and court cases only establish the parameters of the possible rather than explicating practices. Indeed, all generalizations about the prevalence of profane burial, its changing incidence over time, and any geographical variation rest on more or less insecure evidence. Even apparently ﬁrm documentation like a coroner’s order does not prove the ﬁnal destination of the body unless further evidence such as ﬁnancial accounts accompanies it; warrants were permissive and, as with many aspects of early modern justice, a judgment did not preclude further appeal or negotiation over the eventual outcome. Perhaps the best evidence of profanation would be archaeological, placing deﬁled bodies in the ground. Highway or crossroads burials are documented by archaeologists, but no studies have been located that would prove or disprove staking, partly because wooden stakes will rot in most soils.⁶¹ An example of a robust, if not watertight, document showing burial outside a churchyard comes in a warrant issued by John Moscrop, coroner, to the churchwardens of the parish of Berwick-upon-Tweed on 6 February 1778: ‘Whereas I with my inquest . . . have taken a view of the body of Captain John Knox who shot himself in your parish . . . felo de se . . . require you that you cause the body of the said John Knox to be buried in some publick street or highway according to law . . . ’. On the back of the warrant is a statement from two churchwardens of Holy Trinity that they had on the same day caused the body to be interred ‘in a place called the Calfhill near Castlegate . . . in the King’s highway’.⁶² That the warrant is countersigned adds veracity, but does ⁶⁰ MacDonald and Murphy, Sleepless souls, 349. A recent ruling had ﬁxed the physical requirements of lawful burial. Gilbert v. Buzzard (1821) 3 Phil. Ecc. 335, 2 Hag. Con. (App.) 167, 2 Hag. Con. 333 [ER 161, pp. 761, 887, 1342]. ⁶¹ R. Halliday, ‘Wayside graves and crossroads burials’, Proceedings of the Cambridge Antiquarian Society 84 (1995), 113–19. R. Halliday, ‘Criminal graves and rural crossroads’, British Archaeology 25 (June 1997), 6. I am grateful to Professor Margaret Cox for her help in this regard. ⁶² BRO C15/87/3. C14/3–4. The Calfhill is north of the modern railway station, and immediately north of the Gallows Knowe.

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Punishing the dead 1765 The corporation to the bailifs & cor[o]ner for trouble and charges at bur[y]ing the corpse of Thomas Robinson on the Highway To an oak post and showing [shoeing] it with iron 6d To iron work at the top & painting it 3/7½ To carpenter worke & drving the stake 3/6 To three bailifs & cor[o]ners attendance at seeing the body putt under ground 10/To four men carrying the body up 2/To licker drunk 11½d Paid the grave digger 1/6 To the hangman insisting upon the mans close [clothes] 2/6 Pay Mr Wilson £1-10-1 August 8 1765

Figure 2 Account for the burial of a suicide at Berwick-upon-Tweed, 1765

not establish certainty.⁶³ To identify this we need to go down to the level of enforcement or action. Here churchwardens’ accounts are silent, but not from want of detail covering both routine burials and many activities outside their normal remit.⁶⁴ While it was churchwardens who were charged with this task, accounts presented to JPs and ﬁled among Quarter Sessions papers are no more forthcoming about suicide burials.⁶⁵ Only a single staking of a suicide has been found in the extensive eighteenthcentury records of Berwick-upon-Tweed (Figure 2). It comes from 1765, when a small docket records in grimly speciﬁc detail the money paid to Mr William ⁶³ A. Foster, ‘Churchwardens’ accounts of early modern England and Wales: some problems of note, but much to be gained’, K. L. French, G. G. Gibbs and B. A. K¨umin (eds), The parish in English life, 1400–1600 (Manchester, 1997), 74–93. ⁶⁴ L. A. Botelho (ed.), Churchwardens’ accounts of Cratﬁeld, 1640–1660 (Woodbridge, 1999), 48. J. F. Williams (ed.), The early churchwardens’ accounts of Hampshire (Winchester, 1913), lxii, 132, 137. ⁶⁵ For debate on what churchwardens’ accounts can and cannot tell, see C. Burgess, ‘Prereformation churchwardens’ accounts and parish government: Lessons from London and Bristol’, EHR 117 (2002), 306–22, and R. Hutton, ‘Seasonal festivity in late medieval England: Some further reﬂections’, EHR 120 (2005), 66–79.

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Wilson for burying a felo de se.⁶⁶ The document resembles itemized descriptions of expenditure on executions. While it does not give a direct account of the tone of the event, it does convey a measured and solemn approach that is at odds with Tom Laqueur’s characterization of pre-1868 public executions as carnivalesque and chaotic, ‘madcap and melancholy’.⁶⁷ However, Robinson’s end is more in tune with Laqueur’s argument that executions tended to be conducted in isolated rural spots and attended not by potent symbols of the state, but by minor local ofﬁcials.⁶⁸ Private as his death had been (he hanged himself in a printer’s cellar), Robinson’s last hours above ground were very public. At least ten people were present in an ofﬁcial capacity to add gravitas to the ritual. Others had been involved, including the jury of fourteen ‘good and lawful men’ of the borough who comprised the inquest on the body held the previous day, those who informed their deliberations, and an unknown number of spectators at the interment. Mr William Procter, the coroner, also received a standard fee of 13/4 for holding the inquest.⁶⁹ The only person missing is the clergyman: this may be deliberate, though he did not have to be paid and is thus invisible in a ﬁnancial document. Robinson’s treatment was meant to convey a lasting message. The receipt shows that the stake was far from a crude bludgeon, being carefully fashioned of durable timber and tipped or shoed with iron. It was designed to be seen, because ironwork was also ﬁxed to the top and it was painted.⁷⁰ The mixed messages that Laqueur believes characterized executions were undeniably present at Robinson’s interment. The amount of alcohol consumed is reminiscent of accounts of drink-sodden Tyburn processions.⁷¹ Even if the request was made in private, there is an element of macabre farce about the hangman’s venality. Suicides were usually buried in the clothes in which they died, rather than in funeral garments. When asking for the man’s clothes, the town executioner may have recognized that, as well as their economic worth as second-hand garments, the dead man’s effects had a positional value. Being desecrated to become sacralized, suicides’ bodies and objects they touched took on positive new associations from their original dishonour: for early modern Germany, Lyndal Roper likens the body parts of the dishonourable dead to holy relics.⁷² Magistrates had to be present to see the corpse interred and prevent its removal by friends, or its sale to anatomists, quacks, or the merely curious. ⁶⁶ BRO H16/53A. ⁶⁷ T. W. Laqueur, ‘Crowds, carnival and the state in English executions, 1604–1868’, in Beier, Cannadine and Rosenheim (eds), First modern society, 309, 323. ⁶⁸ Ibid., 312–17. ⁶⁹ BRO H2/43. ⁷⁰ A folkloric reference from South Shields in the early nineteenth century also mentions a protruding stake. W. Brockie, Legends and superstitions of the county of Durham ( Sunderland, 1886), 151–2. For a London example in 1590 see Forbes, Chronicle of Aldgate, 136. ⁷¹ Laqueur, ‘English executions’, 332. ⁷² L. Roper, Oedipus and the devil: Witchcraft, sexuality and religion in early modern Europe (London, 1994), 189. Ross, ‘Burying of suicides’, 286–7. Murray, Suicide, vol. 2, 56, discusses hangmen’s perquisites in medieval Germany.

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Valuable as this Berwick example is, it is unique among the boxes of vouchers and receipts the town kept in the eighteenth century. Berwick had no newspaper at this date, but there was a press in the north of England, and it too conveys an impression of infrequency and selectivity in profane burial. A source discussed in depth in Part 2, English provincial newspapers of the eighteenth and early nineteenth century, which favoured the unusual, the sensational, the macabre and the affecting, rarely mention elaborate profanation of suicides. Of seventeen suicides recorded in the Berwick Advertiser 1808–30, only that of Mary Mather, who (repeating the wording of the inquest verdict of 31 March 1817) ‘murdered herself deliberately with laudanum while sane’, involved burial on the public highway and the forfeiture of her goods and chattels to the town of Berwick; there is no mention of staking the corpse.⁷³ Fifty years of The Cumberland Pacquet; or, Ware’s Whitehaven Advertiser contains eighteen reports of felones de se in the six northern counties. Of these, just three mention unusual burials, all convicted criminals: one interred at a crossroads, one on Lancaster moor (both with a stake through the body), and a third ‘ordered to be buried at low water mark’.⁷⁴ All three examples come from 1790–1: a period of heightened concern about suicide in particular and crime in general.⁷⁵ One additional case reported in the Pacquet (also in 1790) was a double staking in Lincolnshire of a multiple poisoner who afterwards killed herself and was found felo de se; the only other involving desecration was from Leicestershire in 1804.⁷⁶ These cases form a tiny proportion of 209 reported self-murders. In eight further cases an out-of-the-ordinary burial location is mentioned, of which six were in the highway, one at a crossroads and one in the corner of a churchyard without a service; this leaves ﬁve cases with no reference to burial. The Newcastle Courant, with a longer run than the Pacquet, is no more fruitful. Only eight felo de se verdicts additional to those in the Pacquet were reported from the six northern counties, from a wide range of years: 1803, 1804, 1806, 1817 (two), 1818, 1819 (two). Destination of the corpse is given for seven, all being buried in or near a public road. One case was extensively reported across the north of England. Two elderly brothers from near Alnwick, the Younghusbands, who cut their throats in an apparent suicide pact in November 1818 were found felo de se after a prolonged inquest. Their farm stock was valued and they were buried at midnight at a crossroads near the church. However, magistrates then ordered the churchwardens to rebury the bodies in a highway ⁷³ BA (5 April 1817). ⁷⁴ CP 818 (16 June 1790); 882 (6 September 1791); 883 (13 September 1791). ⁷⁵ J. M. Beattie, ‘Towards a study of crime in 18th century England: A note on indictments’, in P. Fritz and D. Williams (eds), The triumph of culture: 18th century perspectives (Toronto, 1972), 299–315. ⁷⁶ CP 820 (30 June 1790). 1537 (27 March 1804). For another example of double staking see R. L. Rickard (ed.), Progress notes of warden Woodward for the Wiltshire estates of New College, Oxford , 1659–1675 (Devizes, 1957), 8–9.

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near where they had died.⁷⁷ The attitude of spectators at the midnight interment resembles the ambivalence found at executions. ‘Unseasonable as the hour was, the interment was numerously attended. All seem to allow the justice of the verdict, though all seem to lament it.’⁷⁸ For the Newcastle Courant, the burial took place ‘among a concourse of sighing spectators’.⁷⁹ From late eighteenth- and early nineteenth-century newspapers the abiding impression is that only social marginals received profane burial—notably servants and above all young single females—and references to staking are rare.⁸⁰ This is despite the persistence of a high proportion of felo de se verdicts in the north well into the eighteenth century. Surviving from the mid-sixteenth century, parish registers might be expected to contain better documentation of burial practices than contemporary comments, ﬁnancial accounts, and newspapers. Also closer to day-to-day life than occasional investigations by church courts, registers suggest that in practice all categories of ungodly dead were dealt with selectively. In his early twentieth-century text on the parish registers of England, J. C. Cox cites twelve ‘selected instances’ of suicides from the parish registers of Derbyshire and the six northern counties between 1556 and 1719.⁸¹ Of these, the mode of burial is unknown for two; one was staked and buried at a crossroads; two in the highway; three were described simply as buried, one ‘non sepultus’ and one laid to rest ‘in a void place’; one was buried ordinarily and one on the north side of the churchyard. Cox made an illustrative selection, for whose representativeness no one can now vouch, but the keynote of his list is variety. The most elaborate profanation is of Thomas Maule, who hanged himself in a drunken ﬁt on 3 April 1573 and was buried in Pleasley (Derbyshire) at midnight ‘at the nighest crosse roades with a stake yn him, manie peopple frome Manesﬁelde’ (three miles distant).⁸² The sense of this entry is highly unusual, but to get a more systematic picture of how suicides were dealt with in local communities, all published or transcribed parish registers for the six northern counties were analysed. This exhaustive investigation supports Cox’s picture of variation, not only for suicides, but for all types of ‘unchristian’ dead. Register entries show variations in the description and treatment of death, and cannot be used to demonstrate generalized practices of profanation, let alone the prevalence of attitudes of avoidance or horror towards suicides as a group. Of course, absence of evidence cannot be taken as evidence of absence. But taking absence of evidence as evidence of presence when backed up by normative documents of questionable accuracy and generality is even less acceptable. What ⁷⁷ J. Sykes, Local records; or, historical register of remarkable events, which have occurred in Northumberland and Durham . . . 2 vols. (Newcastle, 1833), vol. 2, 117. ⁷⁸ BA 569 (21 November 1818). ⁷⁹ NC 7415 (20 November 1818). ⁸⁰ See for example CM 11222 (27 July 1793). Durham Advertiser (29 October 1814). Sykes, Local records, vol. 2, 86. ⁸¹ J. C. Cox, The parish registers of England (London, 1910), 114–16. ⁸² Ibid., 114.

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evidence there is sits more comfortably with an enduring contingency of attitudes to the burial of religious or moral deviants than with an interpretation that sees a shift from generalized harshness to all-encompassing leniency. For example, at Greystoke in Cumberland ﬁve Elizabethan suicide burials are recorded: 1560, 1562 and 1584 (all identiﬁed by the phrase ‘which spylt himself’) and a man and a woman who drowned themselves (separately) in July 1594.⁸³ However, it is not until after the Restoration that explicit references to profane burial are made in Greystoke register, one of ‘an excomucated person who had not chrstian buriall’ (1675), and the other in 1704 ‘a child of Henery Shepherd without Xtian buryall’.⁸⁴ The trajectory shown in this parish goes against the blanket simpliﬁcation of register entries from Elizabeth’s reign onwards, which might be expected to render the subsequent treatment of corpses obscure.⁸⁵ Parish registers have their uses, but they are often laconic documents that offer one brief description of burial practices. Superior contextual information can be provided from a single parish or community which has good records and has been intensively studied by an historian. One such is Myddle in Shropshire, where Richard Gough’s wonderfully rich ‘antiquities and memoirs’ form the basis of David Hey’s vivid reconstruction of village life. With a legal training as well as a keen eye for humanity, Gough documents just three suicides for his community during the Tudor and Stuart era, none seemingly recorded in the parish registers. Of these, Richard Woulf was interred at the crossroads, but the same night his body was dug up and re-buried in one of his ﬁelds.⁸⁶ An old man, Woulf was thought by some to deserve sympathy, as maltreatment by his drunken, abusive son-in-law had caused him to walk some distance to buy poison, take it, then walk back home to die in his bed. Hey ﬁnds that the other two suicides appear to have been buried more or less normally, despite one, John Gossage, being a drunkard, debauchee, thief, and counterfeiter.⁸⁷

3 . 5 T H E M I C RO - P O L I T I C S O F E N G L I S H BU R I A L : N E G OT I AT I N G T H E T R E AT M E N T O F M U R D E R E R S O F T H E M S E LV E S Much of the evidence about burial documents one designated destination for a body. Yet neither prescriptions about interment in legal texts, nor instructions ⁸³ A. M. MacLean (ed.), The registers of the parish of Greystoke . . . 1559–1757 (Kendal, 1911), 4, 7, 60, 95. M. Clark, ‘Northern light? Parochial life in a ‘‘dark corner’’ of Tudor England’, in French, Gibbs and K¨umin (eds), Parish in English life, 69–70. ⁸⁴ MacLean, Greystoke parish registers, 279, 337. ⁸⁵ W. Coster, Baptism and spiritual kinship in early modern England (Aldershot, 2002), 23–4. ⁸⁶ D. G. Hey, An English rural community: Myddle under the Tudors and Stuarts (Leicester, 1974), 46, 183. ⁸⁷ Ibid., 140, 149, 212–13.

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in a coroner’s warrant, nor even the burial itself was conclusive: any one might mark the beginning not the end of a process of open negotiation, unilateral action, or underhand manoeuvring to secure a ﬁnal resting place. Richard Woulf of Myddle is an example. Indeed far from being a sign of universal abhorrence, burying suicides shows contrasting eschatological priorities. Secret burial was a quasi-religious act, while removal and re-burial showed a desire to reclaim ownership of a corpse and to assign it to familiar space, thus creating a version of respectability that tried to balance or replace public stigma with private observances.⁸⁸ Those who acted unilaterally to bury or re-bury a suicide may have seen themselves as performing acts of charity, kinship, and neighbourly obligation: defenders of broadly conceived Christian decency, rather than narrowly understood church law. What was at issue for friends was ‘the assertion of independence, the articulation of respect for the corpse and the ability to express loss through the familiar rituals of burial’.⁸⁹ For it was sanctions against bodies that really concerned survivors, who recognized that, however it was rationalized, non-standard burial was a punishment. Nineteenth-century folklorists and antiquarians played with the idea that crossroads burial simply distanced the dead person from the living and was not punitive. Torn between condemning superstition and romanticizing it, some claimed crossroads interment could be a kindness. M. A. Richardson wrote: ‘It was usual to erect crosses at the conjunction of four cross roads, as a place self-consecrated, according to the piety of the age; and it was not, probably, with a notion of indignity, but in a spirit of charity, that those excluded from holy rites were buried at the crossing roads, next in sanctity to consecrated ground’.⁹⁰ Pausing at wayside crosses had been a standard part of Catholic funeral rites, and there are examples of its being prosecuted in recusant parts of Lancashire in the seventeenth century.⁹¹ Yet the fact that some friends tried to move bodies so buried suggests they felt they had been discriminated against. Graves with stakes protruding from the ground marked the spot and allowed passers by to revile them and their associations, as headstones did to invite reverence of the righteous dead.⁹² ⁸⁸ J-M. Strange, ‘Only a pauper whom nobody owns: Reassessing the pauper grave, c.1880– 1914’, P&P 178 (2003), 158, 168–9. J. V. Holleran, ‘Maimed funeral rites in Hamlet’, English Literary Renaissance 19 (1989), 67. C. Tait, Death, burial and commemoration in Ireland, 1550–1650 (London, 2002), 85–96. ⁸⁹ Strange, ‘Pauper graves’, 172. ⁹⁰ M. A. Richardson, The local historian’s table book, of remarkable occurrences . . . connected with the counties of Newcastle-upon-Tyne, Northumberland and Durham 8 vols (Newcastle-upon-Tyne, 1841–6), vol. 3, 143. A. Holt White, ‘Indignities on the bodies of suicides’, Notes and Queries 1st series 5 (1852), 356–7. M. Puhvel, The crossroads in folklore and myth (New York, 1989), 81–101. ⁹¹ Lancashire RO DDKE/2/5/1. ⁹² Guernsey, Suicide, 29. Vaux, Church folklore, 154, reinforces this with a reference from Gentleman’s Magazine of 1763 to the Cumbrian practice of throwing a stone at and cursing a marked crossroads burial. Puhvel, Crossroads, 84, reports a German legal code of 1547 that spikes be left above ground to mark a suicide’s grave.

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Antiquarians and folklorists also made much of the symbolism of staking as a way of rendering immobile a hostile, wandering spirit: an apotropaic act designed to turn away evil rather than a punishment of the dead.⁹³ However, this went ﬂatly against the Protestant doctrine of the location of souls, and even for those who did not accept reformed theology there were less invasive ways of dealing with bad spirits. One was placing a plate of salt on the breast of the laid-out corpse, a practice also recorded by folklorists of Scotland.⁹⁴ Some writers on north-west England thought that the use of ‘corpse doors’ (special exits like windows rather than doors) was general, rather than being conﬁned to suicides, and was a way of preventing the spirit of the deceased ﬁnding its way back into the house; in Yorkshire ‘corpse ways’ were followed en route to the churchyard to placate potentially revenant ghosts.⁹⁵ Another prophylactic was binding down the gravestone with an iron girth.⁹⁶ Yet another was water. In 1784 an Aberystwyth coroner ordered a female poisoner who killed herself to be buried at a crossroads with a stake through her, but local people had her interred in a hole near the sea to prevent ‘her joining those malignant spirits that are supposed to haunt, and have almost depopulated the once ﬂourishing town of Llanbadern Vawr’.⁹⁷ If staking was apotropaic, why was it inﬂicted on certain types of suicide or at speciﬁc time periods and geographical areas, and why were alternatives not used?⁹⁸ None of these counter-explanations is convincing and it is plain that profane burial was punitive burial. This explains why friends sometimes went to considerable lengths to secure as normal a burial as possible.⁹⁹ On occasions their do-it-yourself interments could be condoned. The parish register of Ashton-under-Lyne for the 1620s contains ⁹³ Barber, Vampires, 46–65. Puhvel, Crossroads, 86. H. Bourne, Antiquitates vulgares; or, the antiquities of the common people (Newcastle, 1725), 37–58. ⁹⁴ E. Gutch, Examples of printed folk-lore concerning the North Riding of Yorkshire, York and the Ainsty (London, 1901), 223. W. Henderson, Notes on the folk lore of the northern counties of England and the Borders (London, 1866), 39–40, and M. C. Balfour, Examples of printed folk-lore concerning Northumberland (London, 1904), 101–2, both saw this as general practice and interpreted it as a symbol of ‘incorruption and eternity’. For H. Penfold, ‘Superstitions connected with illness, burial, and death in east Cumberland’, TCWAAS new series 7 (1907), 60, it was supposed to prevent the corpse swelling. Brockie, Legends and superstitions, 200, hedged his bets. J. M. McPherson, Primitive beliefs in the north-east of Scotland (London, 1929), 124, says that salt kept off evil spirits, but also allowed that both salt and bread could be put on the corpse to be eaten by ‘sin-eaters’. J. G. Dalyell, The darker superstitions of Scotland, illustrated from history and practice (Edinburgh, 1834), 96–7, 102–3. The Scottish manner of warding off the evil effects of suicide may have been to place a horseshoe on top of the corpse. C. S. Black, The story of Paisley (Paisley, 1972), 131. ⁹⁵ H. S. Cowper, Hawkshead (London, 1899), 324–5. J. C. Atkinson, Forty years in a moorland parish (London, 1891), 216–20, 229–32. ⁹⁶ J. W. Ord, The history and antiquities of Cleveland (Edinburgh, 1846), 228. ⁹⁷ Gentleman’s Magazine (November 1784), 868. ⁹⁸ As noted by F. Egmond, ‘Execution, dissection, pain and infamy—a morphological investigation’, in F. Egmond and R. Zwijnenberg (eds), Bodily extremities: Preoccupations with the human body in early modern European culture (Aldershot, 2003), 102–7. See also E. Cohen, The crossroads of justice: Law and culture in late medieval France (Leiden, 1993), 96–9, 134–6. ⁹⁹ Houlbrooke, Death, 336.

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two examples of suicides buried ‘at night by neighbours without any minister or bell rung or tolled . . . and all this ut auditione accepi [so rumour has it/I am led to believe]’, the concluding remark suggestive of tacit acceptance.¹⁰⁰ At other times, confrontation could result. In June 1683 ‘Roger Peake of Treehous banke who hanged himself in his owne barne the 9th day . . . was stolen into the church yeard & buried on the north side aboute one of the clocke in the morneinge’.¹⁰¹ Peake was buried illicitly by neighbours who thought he deserved as normal an interment as they could give him. Other northern examples include John Hannard, presented by the churchwardens of Bolton-on-Swale (Yorks.) for digging a grave at night in the churchyard for his brother Thomas, ‘the same who did untimely put himself away’.¹⁰² The actions of these friends were informal. Recovering the body had cathartic effects, its renewed ownership helping friends to express their sense of loss and identity; they resumed their dialogue with the dead.¹⁰³ Seen from their point of view, this ‘rightful disinterment’ and re-interment was designed to honour the deceased and his or her family; for those who disagreed, it was wrongful and disruptive to ideas of order, community, and civility.¹⁰⁴ However, relatives could regularize burial by applying to their bishop for a licence to inter a suicide normally. Both before and after the Reformation, bishops could do this for those refused burial who had been represented as penitent; the 1603 canon allowed normal burial even to those under greater excommunication, provided someone could testify to their repentance.¹⁰⁵ Paul Seaver has found that a ‘substantial’ number of suicides (actually thirty-one) were allowed Christian burial by bishop’s licence in early seventeenth-century London.¹⁰⁶ The most likely reason for the small numbers is that the bishop was recruited by family when they were refused burial by a clergyman, or when they felt unable or unwilling to ask his permission. The alternative was to use connections, as recognized in Act 5, Scene 1 of Shakespeare’s Hamlet, when the gravediggers famously complained of Ophelia’s burial: ‘If this had not been a gentlewoman, she would have been buried out o’ Christian burial’. A factual example is Nicholas Herrick, a rich London goldsmith and moneylender, who was thought ¹⁰⁰ H. Brierley (ed), The parish registers of the Ashton-under-Lyne (Preston, 1927–8), 363, 368. ¹⁰¹ Quoted in Bowman, Ashton-under-Lyne, 176. Brierley, Parish registers Ashton, 448. Compare ‘Raphe Schoﬁeld—excommunicate laid in the yard by some of his freinds’ at the same place in February 1617. Ibid., 337. ¹⁰² Leeds District Archives, Churchwardens’ Presentments, RD/CB/8/1, no. 79. ¹⁰³ Strange, ‘Pauper graves’, 149. ¹⁰⁴ Tait, Death, 95–6. ¹⁰⁵ E. Gibson, Codex juris ecclesiastici Anglicani (London, 1713), 540. The precedent cited by Gibson was pre-Reformation. Cressy, Travesties, 117. C. Haigh, The plain man’s pathways to heaven: Kinds of Christianity in post-Reformation England, 1570–1640 (Oxford, 2007), 70. ¹⁰⁶ P. S. Seaver, ‘Suicide and the Vicar General in London: a mystery solved’, in Watt (ed.), From sin to insanity, 25–47. V. Harding, The dead and the living in Paris and London, 1500–1670 (Cambridge, 2002), 173–4. Vandekerckhove, On punishment, 67. Episcopal licensing covered other ﬁelds such as medicine. I. Mortimer, ‘Diocesan licensing and medical practitioners in south-west England, 1660–1780’, Medical History 48 (2004), 50–1.

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to have killed himself in November 1592, but ‘was hurriedly buried in St Vedast’s next day, apparently in an unmarked grave’ thanks to the inﬂuence of his wife’s well-connected family, who were also able to get the Privy Council to delay the coroner’s verdict.¹⁰⁷ The threat of indignities against corpses may also have been greater in London, which was notable both for the array and the complexity of punishments for all types of offences; clandestine burial was harder in a densely peopled city. Yet licensed burial was just one of a spectrum of options in sixteenth- and seventeenth-century London. Vanessa Harding has suggested that in the metropolis there was a ‘varied response’ to suicide and that ‘the full implementation of such sanctions [as staking and crossroads burial] was probably the exception rather than the general rule’.¹⁰⁸ To exemplify this, T. R. Forbes identiﬁed six certain suicides in St Botolph without Aldgate between 1558 and 1625. Two were found non compos mentis and given Christian burial; two were staked and buried at a crossroads; one was buried in the churchyard under licence, but without a service; one was simply ‘putt in the ground’.¹⁰⁹ Burial by licence in seventeenth century London has been portrayed by Seaver as an anticipation of opinions that only changed nationally from the late seventeenth century. However, in the absence of comparative studies using the same source, an equally valid explanation is that ‘harsh’ and ‘lenient’ attitudes co-existed throughout the early modern period. Those with the money to buy a licence or the social weight to inﬂuence an inquest and/or a clergyman could see their friends and relatives buried more or less conventionally. No such licences have been located for northern English dioceses, an important ﬁnding whose reason is obscure.¹¹⁰ One obvious explanation is that none were granted; another is that, like medieval indulgences or grants to establish chapels, they were so commonly given that they were not recorded.¹¹¹ If the former is correct then it is clear that some northern suicides were buried normally without licences, casting further doubt on the assertion that ‘episcopal intervention was necessary to avoid profane burial’.¹¹² In any case, licences had no sanction in canon law.¹¹³ Their absence may be because staking and other punishments were rarely imposed outside the south-east, reducing the incentive to seek ofﬁcial remedy in the more intimate society of the north of England (and many other nonmetropolitan areas): the furthest north that staking can be traced for certain before the eighteenth century is the Derbyshire example cited above. The alternative ¹⁰⁷ DNB. APC new series XXIII, 289–90. ¹⁰⁸ V. Harding, ‘Burial on the margin: distance and discrimination in early modern London’, in M. Cox (ed.), Grave concerns: Death and burial in England, 1700–1850 (York, 1998), 60. ¹⁰⁹ Forbes, Chronicle of Aldgate, 31, 164–70. ¹¹⁰ I am grateful to Margaret McCollum and Susan Dench for their help on the dioceses of Durham and Carlisle respectively. ¹¹¹ N. Orme, ‘The other parish churches: chapels in late medieval England’, in C. Burgess and E. Duffy (eds), The parish church in late medieval England (Donnington, 2006), 78. ¹¹² MacDonald and Murphy, Sleepless souls, 358. ¹¹³ Cressy, Travesties, 135.

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explanation, that licences were granted more freely but not recorded, also suggests a less strictly enforced regime. Alongside evidence of contested burials, these alternative explanations of the absence of recorded licences invite us to investigate further the micro-politics of the parish. Indeed, examples from parish records of the six northern counties suggest varied practice and a process of negotiation with local clergymen, rather than a resort to their superiors. One vicar, Robert Staynton, buried just two suicides in his forty-two-year tenure of the large West Riding parish of Almondbury. The ﬁrst was in 1575 when the daughter of John Marsden ‘instigatione et mala et iniqua tentatione diaboli et malispiritu surrepito paterno horreo se suspendit 20 die octobris qui 27 die sepultus erat, a tam diabolica morte servet nos omnipotens deus’.¹¹⁴ On 1 March 1576 Agnes Littlewood gave birth to a baby boy. Two weeks later, she left her home in the middle of the night and managed to drown herself in a well which was barely 18 inches deep in water. The vicar recorded that her act had been ‘by the instigation off the devell’ and concluded: ‘Ab infestationibus et instigationibus immundi spiritus, ac a tam insperata morte, libera nos clementissime Deus Amen’.¹¹⁵ She may, or may not, have been buried normally, since all the entry says is that she was interred on 16 March 1576. Vicars after Staynton did not record their thoughts on the ultimate cause of death, but Almondbury’s registers yield additional instances of suicides being treated as other dead. On 28 December 1601 ‘ux[or] Johanni Dyson f[ilius] Edmundi Dyson de Lingards laqueo sibi vitam ﬁnivit et ad instantiam cantoris in caemiterio sepult[us erat].¹¹⁶ In this instance she was buried in the churchyard after the precentor had intervened, despite having hanged herself. The vicar himself was clearly prepared to be ﬂexible about the ungodly dead, because he was cited by his superiors in 1598 for burying in the churchyard an excommunicate called Nicholas Littlewood.¹¹⁷ A measure of dignity is suggested in these examples by the use of sepultus, for in other instances the less respectful tumulatus was used.¹¹⁸ A woman who threw herself down a well was simply noted as buried on 14 March 1614, as was a man who unexpectedly stabbed himself (‘morte obiit repentino videlicet ferrum habuit quo se occidit ac sepult’) on 9 February 1633.¹¹⁹ Irregularities in burials generated court cases that illuminate more clearly the processes of inﬂuence and accommodation that can be inferred from some of the foregoing parish-register examples. Clergy were not supposed to bury bodies whose cause of death was uncertain without a coroner’s warrant, and ¹¹⁴ H. Taylor (ed.), The parish register of Almondbury, volume 1 (part 1), 1557–1598 (Wakeﬁeld, 1974), 108. ¹¹⁵ Ibid., 112. ¹¹⁶ H. Taylor (ed.), The parish register of Almondbury, volume 1 (part 2), 1598–1652 (Wakeﬁeld, 1975), 28. ¹¹⁷ Borthwick Institute Y/V/CB/1, f. 34v. ¹¹⁸ CRO Gosforth burials (1600). ¹¹⁹ Taylor, Almondbury, vol. 1 (part 2), 77, 156.

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exhumations might be ordered when unilateral action had secured an early burial.¹²⁰ However, vicars were human and they were subject to local pressures. When John Blake killed himself at Castlemartin in Wales during the 1630s, Richard and George Rowe mutiliated his body to make it look like murder, in order to ‘frame’ someone Richard disliked. The Rowes ‘were earnest’ with the young minister, William Danyes, to bury Blake quickly, but he ‘was unwillinge till he heard from the coroner howe he came by his death and Richard Rowe annsweared he was theire friend and they had done with him, and then deponent buried him’.¹²¹ Elsewhere, clergy can be found customizing ofﬁcial canons to local needs, adjusting practices to suit not only objective social dynamics in their parishes, but also their own subjective responses to handling both sin and conﬂict.¹²² In 1629 Richard Bourne, foreman of the jury that found Elizabeth Monck felo de se, asked the vicar of St Cuthbert’s, Wells, to allow normal burial. The vicar allowed interment in the churchyard to go ahead, equivocating with ‘all the leave that he could give or grant he did willingly grant’.¹²³ Visitation articles of the early Stuart church contain occasional injunctions to inquire whether ‘any person excommunicated, or any recusant convicted, or any that hath destroyed their owne life beene buried in your church or churchyard, if so, then who, and by whom, and how long since?’¹²⁴ The implication was that this should not happen, but did. For example, during the seventeenth century churchwardens presented ﬁve instances of the irregular burial of suicides in churchyards to the Archdeacon of Nottingham’s visitation (1612 [two], 1625, 1628, 1664).¹²⁵ Social and professional pressures grew over time with the fragmentation of Protestantism, and most Anglican clergy probably adopted a pliant stance on the burial of suicides—and many other issues, for they had to be attentive to the pastoral needs of their ﬂocks (see 5.2b). David Cressy writes of strong cultural aversion to improper or incomplete burial, regardless of the corpses’ sins.¹²⁶ Cressy denies that this charity was extended to suicides, but what evidence there is suggests that, like recusants or excommunicates, their burial ‘reveals conﬂicting standards of decency and discipline and variable notions of community and exclusion, decency and pollution’.¹²⁷ Attitudes towards self-murder were complex and contingent throughout the early modern period, not simple and severe at one date and simple and benign at a later one. Punishing the dead was similar to any other kind of early modern punishment in being discretionary. While everyone was notionally equal ¹²⁰ CRO D/LEC/CRI/112/11 (1803). ¹²¹ HL Ellesmere 7956. ¹²² J. Champion and L. McNulty, ‘Making orthodoxy in late Restoration England: The trials of Edmund Hickeringill, 1662–1710’, in Braddick and Walter (eds), Negotiating power, 236–8. ¹²³ Haigh, Pathways to heaven, 71. ¹²⁴ Fincham (ed.), Visitation articles, vol. 1, 21; vol. 2, 2, 48, 203. Quotation at vol. 2, 2. ¹²⁵ Nottingham University Archives AN/PB 295/3/2. AN/PB 302/227. AN/PB 339/11/48. AN/PB 304/4/27. ¹²⁶ Cressy, Travesties, 119–20. ¹²⁷ Ibid., 116, 120.

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before the law, there were in reality few offences whose atonement was not negotiable. As Faramerz Dabhoiwala puts it, ‘a semblance of social respectability was a prerequisite for negotiating the legal system. Without it, the force of the law as an instrument of moral and social control was undiluted.’¹²⁸ More generally, Alexandra Walsham has shown in her study of religious tolerance and intolerance how personal contact eroded threatening stereotypes of deviance in contemporary polemic, and how particular circumstances rather than a uniform mindset drove neighbours occasionally to take spontaneous action against people with whom they generally lived in peace and harmony.¹²⁹ Burial of suicides exempliﬁes such nuanced responses.

3 . 6 T H E D I F F E R E N C E S B E T W E E N S U I C I D E BU R I A L S I N E N G L A N D A N D S C OT L A N D Scottish practices differed from English in three ways. First is the complete absence of any mention of staking in any source except a single folklorist. Second, the cultural and religious context of post-Reformation Scotland was distinctive, and the simplicity of Calvinist burial rites made the absence of certain rituals less noteworthy. Third, Scotland had distinctive avoidance patterns, indicated in the passages from Fulbecke and the 1786 sermon cited in the Introduction to Part 1, which focused on the passage of the corpse to its place of rest or disposal. Of these three, the means of distancing or avoidance require most attention as they involved treatment of the corpse and also a set of spatial preferences that both announced values and created physical settings for understanding suicide. These were an avoidance of the physical and symbolic space used by the living and by the naturally, justly, or blamelessly dead. As Foucault suggested of the mad in the age of reason, social exclusion of suicides was simultaneously spatial exclusion, the physical location of their burial reinforcing an imaginative geography of the moral universe.¹³⁰ In most instances what was omitted was more important than what was done, with the buried body in Scotland a passive carrier of meaning rather than the active object of physical sanction. ‘Corporal punishment’ of Scottish corpses merits extensive discussion in Chapter 4. In Scotland there was never a statutory sanction for profane burial, any more than there was in England, and only forfeiture was acknowledged at law.¹³¹ The normative sources that have so dominated historians’ perceptions of English suicide are all but silent. However, a variety of distinctive burial ¹²⁸ Dabhoiwala, ‘Sex, social relations and the law’, 90. ¹²⁹ Walsham, Charitable hatred, ch. 2, 5. ¹³⁰ C. Philo, ‘Edinburgh, Enlightenment, and the geographies of unreason’, in D. N. Livingstone and C. W. J. Withers (eds), Geography and enlightenment (London, 1999), 376–7. ¹³¹ Bayet, Le suicide, 666–76, 704. Puhvel, Crossroads, 83.

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practices are recorded, some in contemporary sources, some by nineteenthcentury antiquarians. Staking was not one of them. Folklorists were sure it was practised in the north of England and one thought in part of Scotland too. Writing of south-west Scotland in 1911, Maxwell Wood afﬁrmed that ‘until comparatively recent days’ the bodies of suicides were buried at a crossroad or an isolated spot, sometimes with stakes through them.¹³² Yet he offers no evidence for this beyond an arguable association with a place name. There is no independent evidence of staking, leading one to conclude that what was thought folklorically conceivable is historically implausible.¹³³ Scots believed in punishing the dead and evil spirits, but did not use staking to do so. Indeed, staking has a place in conceptions of the history of suicide that is out of all proportion to its prevalence. Haim Hazan has written that ‘the viability of stereotypes is often held to be inversely related to the amount of concrete evidence available about their objects: the more informed we are, the less valid the stereotype’.¹³⁴ Applied originally to modern old age, this comment is equally valid for profane burial of historic suicides. The only time that bodies were interfered with at burial was to stop their being removed. When the Scottish ‘resurrectionists’ were active in the eighteenth and early nineteenth century, a number of expedients were used to prevent grave-robbing for dissection. One was a ‘mort collar’. Looking like a portion of stocks, it comprised a metal band, which went round the corpse’s neck and was attached to a stout wooden block that was in turn bolted to the cofﬁn.¹³⁵ Alternative strategies were to bury very deep, to watch the grave and, in extreme circumstances usually only associated with executed felons, to use quicklime or vitriol. 3 . 7 R E L I G I O U S R I T UA L A N D BU R I A L : T H E S I M P L I C I T Y O F S C OT T I S H C A LV I N I S M Religious rituals associated with burial were different in Scotland because the Scottish Reformation followed a more austere and radical trajectory than the English. As shown in the Book of Common Order and the ﬁrst Book of Discipline, the reformed Kirk tried to do away with any elaboration at interments: bodies were to be carried and interred quietly, soberly, and without ceremony.¹³⁶ The ¹³² J. M. Wood, Witchcraft and superstitious record in the south-western districts of Scotland (Dumfries, 1911), 239. This is repeated without further support in A. Penman, Some customs, folklore and superstitions of Galloway (Castle Douglas, 1992), 43. ¹³³ Atkinson, Moorland parish, 217, is transparent about this elision. ¹³⁴ H. Hazan, Old age: Constructions and deconstructions (Cambridge, 1994), 28. ¹³⁵ There is an example from Kingskettle, Fife, in the National Museum of Scotland. ¹³⁶ A. Spicer, ‘ ‘‘Defyle not Christ’s kirk with your carrion’’: Burial and the development of burial aisles in post-Reformation Scotland’, in B. Gordon and P. Marshall (eds), The place of the dead: Death and remembrance in late medieval and early modern Europe (Cambridge, 2000), 150.

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Book of Discipline stated that it was ‘most expedient that the dead be conveyed to the place of burial with some honest company of the church, without either singing or reading, yea without any kind of ceremony heretofore used, other than that the dead be committed to the grave with such gravity and sobriety as those that be present may seem to fear the judgements of God, and to hate sin which is the cause of death’.¹³⁷ Funerals still had a place in godly life, but for Calvin they were ‘an earnest of the new life’ and ‘a weighty refutation of unbelief ’.¹³⁸ This search for simplicity could mean banning burial services altogether, and in 1638 the General Assembly of the Church of Scotland (the Kirk’s supreme governing body) agreed ‘to discharge funerall sermons, as savouring of superstition’.¹³⁹ However, services might be replaced by memorials to meet demand from ﬂocks, and A Directory for the publique worship of God, which came out of the Westminster Confession of 1645, allowed ‘civil respects or deferences at the burial suitable to the rank and condition of the party deceased while he was living’.¹⁴⁰ The minister’s presence was not required, and seems to have been unusual for ordinary people between the Reformation and the nineteenth century, when burial services themselves came gradually back into use.¹⁴¹ The Scotch minister’s assistant of 1802 makes no mention of funeral services, but includes a comforting prayer.¹⁴² That funeral sermons were discountenanced by the Kirk makes their omission from the burial of suicides less remarkable than in England, where the 1549 Prayer Book had made burial a sacrament and where clergy were a central feature of Anglican funerals (especially for more prominent parishioners) until the eighteenth century.¹⁴³ Some early seventeenth-century Cheshire parishioners presented their pastors to the church and secular courts for refusing to greet a corpse at the churchyard gate and preventing the tolling of the bell.¹⁴⁴ If present at all, a Scottish minister’s role was to admonish and encourage the living about their duty to lead a godly life. The grave-side service was limited to reading Scripture and saying prayers to ease the bereaved, not to commend the dead. Taking as his text Matthew 8:22 (‘Follow me and let the dead bury the dead’), the Scottish minister, William Birnie, preached at Lanark in 1606 ¹³⁷ Quoted in W. McMillan, The worship of the Scottish reformed church, 1550–1638 (London, 1931), 283. ¹³⁸ Calvin, Institutes of the Christian religion, 3.15.5. ¹³⁹ Quoted in A. Peterkin, Records of the kirk of Scotland (Edinburgh, 1838), 37. ¹⁴⁰ Quoted in W. Mair, A digest of laws and decisions ecclesiastical and civil relating to the constitution, practice and affairs of the Church of Scotland (Edinburgh, 1887), 62. ¹⁴¹ G. Donaldson, The faith of the Scots (London, 1990), 71, 139. ¹⁴² The Scotch minister’s assistant (Inverness, 1802), 315–20. ¹⁴³ F. B. Tromly, ‘ ‘‘Accordinge to sounde religion’’: The Elizabethan controversy over the funeral sermon’, Journal of Medieval and Renaissance Studies 13 (1983), 293–312. Houlbrooke, Death, 295–330. D. Cressy, Birth, marriage, and death (Oxford, 1997), 407–9. Spaeth, Church in an age of danger, 197, 199. ¹⁴⁴ J. Maltby, Prayer book and common people in Elizabethan and early Stuart England (Cambridge, 1998), 56–9.

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about the ‘superstitious exequies’ of what he called ‘the Anti-christian worlde’, specifying ‘their bel-ringinges, lampe-lighting, dirige singing, incense burning, holy watering, letanie praying, soule-massing, vigilles keeping, and such other geare’.¹⁴⁵ Many English people wanted all or most of the ‘geare’ decried by Birnie, and found aspects of the desacralized Scottish practice remarkable.¹⁴⁶ For many Anglicans, doing without these meant ‘we should have no more Christian burial than dogs’, as a Yorkshire vicar warned in 1535.¹⁴⁷ Thus the parish register of Bishop Middleham, Co. Durham, went out of its way to detail ‘A Scotsman and souldier, dying at Cornforth, the souldiers themselves buryed him, without any minister, or any prayers over him, the 4th November, 1644’.¹⁴⁸ Certain English dissenting congregations had similarly unadorned ceremonies. Quakers or Friends gathered at the graveside, speaking if they wished, but with no service, and they frowned on memorials in pursuit of what the city of Durham meeting of 1717 called ‘a Comendable Plainess and Simplicity’ in burial.¹⁴⁹ In some of the Puritan strongholds of the north of England—Kendal, Manchester and Newcastle, for example—comparable simplicity was observed, and foreign observers like N. Strange in the 1640s described Puritan burials as ‘in a manner profane’.¹⁵⁰ Yet these examples should not detract from the fact that Scottish Calvinism was not the same as English. For example, Anglican divines resolutely defended funeral sermons in the Elizabethan period and Puritans too came to accept them, even advocating their continuance against Scottish opposition at the Westminster Assembly of 1642. Thus they ﬂourished in the seventeenth century, both in the mainstream Church of England and in its Puritan wing.¹⁵¹ Despite simpler burial rites, Scots had a clear view of digniﬁed interment. There were conventional rituals which added up to what the Kirk Session of South Leith described in 1615 as ‘the honor of their burial’.¹⁵² Funerals were supposed to be public, with private interments by day or night frowned upon until the eighteenth century; young children seem to have been especially likely ¹⁴⁵ [W. Birnie] The blame of kirk-buriall, tending to perswade cemiteriall civilitie . . . (Edinburgh, 1606), cap. XI: ‘Of superstitious pomp in buriall’. ¹⁴⁶ Holleran, ‘Maimed funeral rites’, 68. ¹⁴⁷ Quoted in C. Haigh, English reformations (Oxford, 1993), 141. ¹⁴⁸ J. S. Burn, Registrum ecclesiae parochialis: The history of the parish registers in England . . . (London, 1829), 96. ¹⁴⁹ Quoted in M. Rutherford, Quakers in the city of Durham, 1654–1858 (Durham, 1997), 26. ¹⁵⁰ Clark, ‘Northern light?’, 67. D. Stannard, The Puritan way of death (Oxford, 1977), 105. Cressy, Birth, 418–20. English Brownists advocated burial in the ﬁelds. ¹⁵¹ Tromly, ‘Elizabethan funeral sermon’, 310–12. P. Collinson, Godly people: Essays on English Protestantism and Puritanism (London, 1983), 519–24. ¹⁵² D. Robertson (ed.), South Leith records compiled from the parish registers for the years 1588 to 1700; and from other original sources (Edinburgh, 1911), 13. McMillan, Scottish reformed church, 283–98.

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to be buried privately.¹⁵³ The washing and dressing of the corpse, who was present at the watching or ‘lykwake’ and how long it lasted, the length of time bells were tolled (or whether they were sounded at all), whether the death was cried through the town, the quality of the mortcloth (a shroud rented to cover the cofﬁn or body) and cofﬁn (if used), the number of neighbours, friends, and family publicly processing, the presence of hired attendants, the lavishness of any post-burial meal for attendees, the location of the burial within a churchyard, visible and audible lamenting, the size and intricacy of the carved monument (uncommon before the eighteenth century): all these announced and reinforced the status of a dead person.¹⁵⁴ Scots did have trappings or ‘geare’ at burials, but they were more social than religious. To be denied what was normal to one’s social standing marked out a suicide from the rest of the community of the dead, as much as active steps taken against their bodies distinguished them from both the living and the righteous dead. In practice, the burial of suicides could lie anywhere on a continuum from denial of all usual rites and shaming of the corpse to a conventional and digniﬁed burial. That religious observances at funerals were important to the Scots is clear from the accommodations over, and revival of, sermons, but the following two sections show that dogma and liturgy mattered less to survivors than the place a corpse enjoyed in the community of the Christian dead. Membership was determined by the place of burial, the mode of conveyance used to reach it and the route the body took.

3 . 8 M OV E M E N T A N D LO C AT I O N : T H E M O B I L E L I V E S O F S C OT T I S H C O R P S E S To leave its place of death or lying and arrive at its ﬁnal resting place, the corpse of a suicide might take a variety of routes. Some were the same as the bodies of the legitimately dead, others involved avoidance of entries and exits used by the living or the innocent dead. One example is when bodies were taken out of a house not by the door, but through a hole between wall and thatch.¹⁵⁵ Less work was involved in an eighteenth-century example from Monimail in Fife where ¹⁵³ In 1810 the church ofﬁcers of Chester St John decided to draw up guidelines for burials in view of ‘the great inconveniences arising from the very uncertain & irregular Hours of Funerals being brought to Church for Interment’. Cheshire and Chester Archives, P51/8/1. ¹⁵⁴ R. A. Houston, Social change in the age of Enlightenment: Edinburgh, 1660–1760 (Oxford, 1994), 21–8, 75–8. A. Edgar, Old church life in Scotland: Lectures on kirk-session and presbytery records. Second series (Paisley, 1886), 230–66. W. Gregor, Notes on the folk-lore of the north-east of Scotland (London, 1881), 208–16. ¹⁵⁵ J. G. Campbell, Superstitions of the Highlands & Islands of Scotland (Glasgow, 1900), 242–3. A. Jervise, The history and traditions of the land of the Lindsays in Angus and Mearns, with notices of Alyth and Meigle (Edinburgh, 1853), 123, gives an example from another part of Scotland. See Murray, Suicide, vol. 2, 23–8, for further context.

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the body was taken out of the house through a window and buried at night ‘at the extremity of the parish’.¹⁵⁶ Making a special entry or exit for the corpse of a suicide can be found in other contexts. When, in the early nineteenth century, a local maltster killed himself in Crieff, the cofﬁn was not covered with the parish mortcloth and was not allowed to pass through the churchyard gates. Instead, the wall at the back of the church was taken down and the corpse brought into the yard through the hole.¹⁵⁷ Behind this practice may have been the belief that the ghost of the last person buried in the churchyard guarded the gate against undeserving entrants: not using the gate prevented an unseemly conﬂict of spirits.¹⁵⁸ However, this had no formal religious justiﬁcation, and it indicated social exclusion. These practices were all ‘popular’, and the only ofﬁcial involvement was when the Crieff man was buried in ground to the north of the parish church, the least desirable part of the churchyard.¹⁵⁹ Faced with an enduring mental map of sacred spaces among congregations, the post-Reformation Kirk formally denied differences in the sanctity of burial ground around the compass (and in or out of church).¹⁶⁰ In fact, it denied any ground was sacred. Episcopalians and Catholics believed in the consecration of ground for burial, but post-Reformation Scots law was different from Roman in refusing to recognize any burial place as res religiosa.¹⁶¹ The Kirk merely acknowledged that its approval of pious uses served to lend both dignity and a type of legal entity to certain dedicated spaces.¹⁶² A seventeenth-century lawyer like Sir George Mackenzie could follow the civilian tradition in describing churchyards as religious; a later one like Erskine could write of ‘a relative sanctity’ attached to them; and Duncan’s Victorian text of parish law described churchyards in Scotland as ‘impressed with a quasi religious or sacred character’.¹⁶³ Yet the Kirk never fully changed popular attitudes to using and avoiding what was perceived as sacred space; arguably the success of the Scottish Reformation depended on such accommodations between elements of dogma and aspects of popular belief. Recognizing differences in desirability, some Kirk Sessions allocated space in churchyards to distinctive categories of dead—paupers, strangers, unbaptized infants, felons, and suicides. For suicides, another half-way position ¹⁵⁶ J. Sinclair, The statistical account of Scotland 21 vols (Edinburgh, 1791–99), vol. 2 (1791), 404–5. ¹⁵⁷ A. Porteous, The history of Crieff from the earliest times to the dawn of the twentieth century (Edinburgh, 1912), 139–40. ¹⁵⁸ McPherson, Primitive beliefs, 127. Penman, Customs, 44. ¹⁵⁹ Murray, Suicide, vol. 2, 18–23, notes that in medieval Germany too extracting the corpse was a communal rather than ofﬁcial ritual. ¹⁶⁰ McMillan, Scottish reformed church, 296–8. ¹⁶¹ J. M. Duncan, Treatise of the parochial ecclesiastical law of Scotland (Edinburgh, 1864), 691. ¹⁶² Ibid., 666–8. ¹⁶³ Erskine, Institute, II.I.8. Mackenzie is quoted in G. Hutcheson, Treatise of the ofﬁces of justice of the peace . . . 4 vols. (Edinburgh, 1809), vol. 2, 367. Duncan, Parochial ecclesiastical law, 705.

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excluded them socially, but not necessarily in a spiritual sense. A Newbattle woman who hanged herself sometime prior to 1572 was denied burial in the churchyard, but was placed in ‘ane litill chapell’: a lonely lying place, but still one with sacred associations.¹⁶⁴ Antiquarians who collected memories about the treatment of suicides on Colonsay in the Western Isles found that interments were permitted in disused burial grounds, but not among the current community of the dead.¹⁶⁵ In the mental map of sacred space these grounds had reassuring associations that the post-Reformation Kirk’s dogma did not effectively dispute. The other option was to exclude suicides altogether, relegating them to ﬁelds or boundaries, though identifying the fate of corpses is even harder than in England because Scottish parish registers mostly begin late, and they are often irregularly kept, especially the record of burials. A rare entry in a parish register (Carrington, Midlothian) mentions that Robert Hislop, a herd at Capelaw, hanged himself in Whithill wood on the night of 6 June 1714 and was subsequently buried on Primrose common.¹⁶⁶ Another register from a parish close to Edinburgh has a poignant entry on the last day of January 1648: ‘Janet Blane spouse to John Cleland betwixt 6 and 7 hours at night did drown herself and her daughter being about the age of ﬁve years’ in Duddingston Loch. Janet wilfully killed herself and was buried next to the loch. Her daughter, innocent of the deed, was laid to rest in the churchyard.¹⁶⁷ Water margins were felt to be appropriate to some suicides. Edinburgh Kirk Treasurer’s accounts for 1665 include ‘a chist [cofﬁn] to a woman that drowned herself ’.¹⁶⁸ Along with others who died the same way, she was buried in the grounds of St Paul’s Work. Built on the site of a medieval religious house next to the city’s Nor Loch, this too may have had sacred associations.¹⁶⁹ The place was convenient, but burial next to place of drowning showed that the body lacked the friends to move it anywhere else, and interment in the grounds of the House of Correction placed suicides with those who were marginal to the community of the burgh—the morally outcast or the simply poor—though giving her a cofﬁn was a mark of respect. Disposal in water might look like an expedient way of dealing with a corpse.¹⁷⁰ Yet the precise choice of location was neither purely random nor merely ¹⁶⁴ NAS JC26/1/67, Jonet Boyman (1572). ¹⁶⁵ S. Grieve, The book of Colonsay and Oronsay 2 vols (Edinburgh, 1923), vol. 2, 344. There is an interesting parallel with late-medieval and early modern Russian chapels, which were semi-profane places of burial for suicides and other sinful (and accidental) dead. Morrissey, Suicide, 29–30. ¹⁶⁶ General Register Ofﬁce OPR 675/2. ¹⁶⁷ General Register Ofﬁce OPR 684/6. P. Spierenburg, The spectacle of suffering. Executions and the evolution of repression: From a preindustrial metropolis to the European experience (Cambridge, 1984), 56–5, records a comparable example for early eighteenth-century France. ¹⁶⁸ ECA Kirk Treasurer’s Accounts, vol. 3. ¹⁶⁹ Vandekerckhove, On punishment, 61. The Nor Loch was later drained and is the site of Princes Street Gardens. ¹⁷⁰ Murray, Suicide, vol. 2, 37–41.

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convenient. Burial on land was a more obvious solution and the use of water had symbolic signiﬁcance: cleansing and healing as well as removing or concealing.¹⁷¹ Popular belief in the power of water for divination or healing—‘Thou shalt cast all their sins into the depths of the sea’.¹⁷²—was combined with a fear of water as a shifting, abstract, and potentially dangerous medium. Running water and sea shores were marginal or liminal sites where energy ebbed and ﬂowed, carrying away and offering up both the tangible and intangible.¹⁷³ One place of execution in England and Scotland was within the high-tide mark.¹⁷⁴ These associations may explain the enduring ambivalence towards any bodies found drowned. For families or communities there were practical advantages in certain burial choices, but they arose from contests over what to do with a body rather than mere expediency. For example, interstices fudged the issue of gaining permission from a landowner, just as a highway burial avoided private property for corpses who had no land of their own in which to be buried: the highways belonged to the crown.¹⁷⁵ Burial on the seashore made it difﬁcult to ﬁnd the body again, preventing either its removal to a better site or its further desecration. It was harder to interfere with a body in a river than in the ground, and impossible at sea. Burial at sea solved an immediate problem of disposal, but it also made an eschatological statement in securing ﬁnal possession of the body and putting it beyond use.

3 . 9 T H E P O L I T I C S O F BU R I A L : C O M PE T I N G VA LU E S I N T H E T R E AT M E N T O F S C OT T I S H S U I C I D E S Moving and locating suicides came out of a mix of social assumptions and popular religious beliefs. Scotland’s Reformation was a rapid and radical event, but it was also pervaded by ideas and practices of community that owed much to the Middle Ages. In the constitutions of Bishop David (1242), c. 120, it was speciﬁed that ‘if any one have been overtaken by sudden death he shall not lack Christian burial, unless he have died an excommunicated person or been killed ¹⁷¹ McPherson, Primitive beliefs, 37–73, 253–4. Dalyell, Darker superstitions, 104. Arnold van Gennep, Les rites de passage (Paris, 1909), noted the prevalence of water journeys in his study of funeral symbolism around the world. Gibbeting can be seen as a cleansing ritual, ‘as the delinquent was abandoned to the power of the air’ or as a way of ‘preventing the diabolical sinner from regaining the earth and his chthonic home’. Van D¨ulmen, Theatre of horror, 88. Ruff, Violence, 106. ¹⁷² Micah 7:19. ¹⁷³ M. Douglas, Purity and danger: An analysis of the concepts of pollution and taboo (London, 1966). J-C. Schmitt, Ghosts in the middle ages: The living and the dead in medieval society translated by T. L. Fagan (Chicago, 1998), 184. ¹⁷⁴ C. Phythian-Adams, ‘Ritual constructions of society’, in Horrox and Ormrod (eds), Social history of England, 375. NAS AD14/21/38. ¹⁷⁵ J. M. Porteous, God’s treasure-house in Scotland: A history of the times, mines, and lands in the southern highlands (London, 1876), 17.

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in some deed in which he commits a mortal sin. For with whom in life we are in communion, with him also in death ought we to be in communion’.¹⁷⁶ The post-Reformation Kirk insisted that those who announced their abandonment of social responsibilities should no more be a part of the sacral community.¹⁷⁷ On 3 December of 1582 the Kirk Session of Perth set its face ﬁrmly against the burial of one such man in their churchyard, echoing the words and following the spirit of the thirteenth-century constitution. Whilk day the friends of William Fary, who drowned himself at the head of South Inch in the Water of Tay [30 November], coming to the minister and elders convened together for the time in their revestry, and desiring licence at the Assembly to bury the said William in the Greyfriars’, which is the burial [place] appointed for the faithful that depart in fear of God: the Assembly answered with one voice that they would not suffer him to be brought through the town in day light, neither yet to be buried amongst the faithful in the place appointed for their burial, but ordain that he shall be buried in the Little Inch within the water, and this to have the voice of an act to all such like persons in all time coming; and assuring all, that if any contravene the same, the dead shall be taken up again, and the contraveners hereof shall make their public repentance on the seat, and thereafter shall pay £10 Scots to be given to one of the deacons, that they may distribute it to the poor.¹⁷⁸

This extract is important for a number of reasons. First, it shows competing approaches to the place of suicides in a Christian community, for Fary’s relatives did not accept that he deserved posthumous punishment by exclusion. His widow and two sons were given the gift of his forfeited estate, suggesting that the crown was content to normalize at least the ﬁnancial implications of his act. More, Fary was a maltman in a burgh where craftsmen were politically powerful, and it is unlikely that his friends’ views were narrowly held.¹⁷⁹ The Session’s response in laying down guidelines for the future (including a ﬁne and exhumation) indicates as much—and also suggests this was a new problem. Burial practices were at one level about marking out the limits of the Christian community—‘the faithful that depart in fear of God’. In Fary’s case the Session’s judgment was that the religious community should take precedence and should be coterminous with the social. Fary’s advocates thought precisely the opposite, adhering to what John Bossy describes as a ‘natural religion of kinship and friendship’ that lay at the heart of medieval popular attitudes towards death.¹⁸⁰ ¹⁷⁶ D. Patrick (ed.), Statutes of the Scottish church, 1225–1559 (Edinburgh, 1907), 63. ¹⁷⁷ SAUL Ms 30451, f. 6. ‘Heretics, and person guilty of self-murder, or that die excommunicated, or in any mortal sin, are denied Christian burial by the canon law.’ Bankton, Institute, II.VIII.194. Bankton was citing the 68th Canon of English canon law. ¹⁷⁸ J. Maidment (ed.), The Spottiswoode miscellany: A collection of original papers and tracts, illustrative chieﬂy of the civil and ecclesiastical history of Scotland 2 vols. (Edinburgh, 1845), vol. 2, 243. RPSS VIII, no. 1131. NAS CH2/521/1, f. 86v. ¹⁷⁹ M. Verschuur, ‘Merchants and craftsmen in sixteenth-century Perth’, in M. Lynch (ed.), The early modern town in Scotland (London, 1987), 36–54. ¹⁸⁰ J. Bossy, Christianity in the West, 1400–1700 Oxford, 1985), 27.

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Fary’s fate further demonstrates relations between secular and religious authorities. The decision on burial was taken by the Kirk, as post-Reformation churchyards were the responsibility of the ‘heritors’ or landowners in rural parishes, and the burgh councils in urban ones.¹⁸¹ Strictly speaking, parish authorities (Kirk Sessions acting with, or for, heritors) only had discretion over whether and where a body should be buried on church land.¹⁸² It was not within the power of the Kirk Session to dictate whether people could process through the community, though in practice this distinction between church and secular magistrates may not have been important in towns, for the Session was usually an adjunct of the burgh council.¹⁸³ Lord Ruthven, a local Protestant noble with Erastian leanings, ran Perth through sitting as provost with a group of cadet lairds on the council; the Kirk Session was a vigorously reforming body.¹⁸⁴ Greyfriars (a former monastic yard) had only been designated the ofﬁcial burying ground of the burgh of Perth in December 1580, and the Kirk Session faced other opposition to its self-assumed powers after the move from the previous churchyard of St John’s. It got the burgh council to stop clothiers drying cloth on the wall of the graveyard. Less successfully, it tried for months from September 1581 to remove a young woman called Marjory Gibson, who had the lease of a house near the churchyard. Described at one point as ‘the Hussy of the Burial [ground]’, she was accused three weeks before the Fary case of irregular behaviour, and also of burying unbaptized infants without notifying the gravedigger or bellman.¹⁸⁵ She denied the charge and is not heard of again; nor did she move house, but the case shows contested rights to ‘sacred’ space in post-Reformation Perth. Fary’s burial (like Gibson’s dwelling) was made into an issue of the church’s authority over deﬁnitions of what was communally correct and what was religiously right. The Kirk Session appealed to the rhetoric of community against a background of division over the values that constituted belonging. Insisting on the disposal of Fary’s body on an island and under the waters of the river Tay may have been an echo of how he met his death, as it was for suicides by drowning buried at St Paul’s Work in Edinburgh (see 3.8). Some ¹⁸¹ J. Chisholm (ed.), Green’s encyclopaedia of the law of Scotland (Edinburgh, 1896), ‘buryingplace’. Duncan, Parochial ecclesiastical law, 667–72. This may be the burial mentioned by Margo Todd, The culture of Protestantism in early modern Scotland (London, 2002), 333n, citing NAS CH2/521/1, f. 86v, though she says the man’s name was William Sawyer. ¹⁸² A. Dunlop, Parochial law (Edinburgh, 1830), 58–62. Kirk Sessions may have assumed the regulation of burial, but by the end of the eighteenth century the heritors’ power was explicitly acknowledged. Dunlop also notes that the General Assembly’s repeated attempts to prevent burial in church during the sixteenth and seventeenth century had no force in law. Ibid., 50–2. Duncan, Parochial ecclesiastical law, 703–5. ¹⁸³ Goodare, State and society, 185. ¹⁸⁴ Verschuur, ‘Merchants and craftsmen’, 51. ¹⁸⁵ R. S. Fittis, Ecclesiastical annals of Perth, to the period of the reformation (Edinburgh, 1885), 128–9.

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may have thought this harked back to pre-Reformation belief in the healing power of water, but the Session subscribed to no such belief, and would indeed have condemned it as superstitious. For them, water burial was a punishment that removed rather than re-integrated, that denied rather than accommodated. It told the living to end their dialogue with the dead. At one level, the Session’s assertions about the community of the dead seem vague—if strongly held and laden with meaning. Partly this was because the Kirk refused to accept that any ground was religiously special, and so had to focus on community: ‘the burial place of God’s people’.¹⁸⁶ The lack of a religious basis for insisting on a particular burial ground was matched by a weak legal position. Kirk Sessions had problems enforcing their vision of a community of ‘the faithful that depart in fear of God’ because they could exclude, but they could not compel inclusion, even of the demonstrably godly. There was no obligation for anyone to be buried in the parish churchyard, however hard some Sessions and burgh councils tried to bully groups like Quakers in the seventeenth century and Episcopalians in the eighteenth.¹⁸⁷ In the Highlands, where parishes were large and the churchyard often distant, poor people were routinely interred in ﬁelds and, as Scottish parishes were generally much bigger than English, this could also happen in the Lowlands; some Border Scots buried their dead in English parishes for convenience.¹⁸⁸ A note to an 1832 judgment by the Court of Session conﬁrmed that there was no ‘statute, decision or dictum’ giving the Church of Scotland a monopoly on burials.¹⁸⁹ The established church in England had such a monopoly in consecrated ground until the Burial Laws Amendment Act of 1880. Prior to this everyone, including Nonconformists, was legally obliged to seek burial by the Anglican minister of their parish.¹⁹⁰ Tensions between different ideas of community manifested in attitudes towards suicides endured. In 1667 the ‘deacon’ or elected head of Edinburgh’s hammermen’s incorporation (metalworkers’ guild) complained about the corpses of self-murderers and executed criminals being brought into the Magdalen Chapel by members.¹⁹¹ The deacon tried to assert that some dead were different from others against beliefs that they were all the same—as explicitly stated in the incorporation’s own minutes. Members were supposed to attend funerals, their deacon sometimes ﬁning the absent since ‘it tends much to their honour and ¹⁸⁶ D. B. Thoms, The kirk of Brechin in the seventeenth century (Brechin, 1972), 60. ¹⁸⁷ G. Desbrisay, ‘Catholics, Quakers and religious persecution in Restoration Aberdeen’, The Innes Review 47 (1996), 156–7. Duncan, Parochial ecclesiastical law, 691. ¹⁸⁸ J. Beech, O. Hand, M. A. Mulhern and J. Weston (eds), Scottish life and society: A compendium of Scottish ethnology, vol. 9: The individual and community life (West Linton, 2005), 110. A. Gordon, Death is for the living (Edinburgh, 1984), 90. Clark, ‘Northern light?’, 56–7. CP 919 (22 May 1792). ¹⁸⁹ Kirk Session of Duddingston v. Halyburton (1832) 10 Shaw 196. R. Strong, Episcopalianism in nineteenth-century Scotland (Oxford, 2002), 34. ¹⁹⁰ Spaeth, Church in an age of danger, 201. ¹⁹¹ ECA Edinburgh Hammermen’s minute books, vol. 5, 87.

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reputation to have a good company attend’.¹⁹² Survivors close to the dead who brought them into chapel challenged one version of community with another equally valid one, mindful that securing a decent burial with the usual observances added to reputation in a community, while accepting a non-standard burial detracted from the store of honour. Clandestine burials tried to steal back credit. Alexander Lamb and others secretly buried Christian Lamb in the Hospital Yard of Dunfermline after she had hanged herself in March 1626. Aware that such an interment could be denied to suicides, they conducted it without permission from the minister or the magistrates of the burgh.¹⁹³ Similarly, the friends of Margaret Henderson, Lady Pittadrow, were censured by the presbytery of Dunfermline for giving her a normal burial after her apparent suicide in prison on a witchcraft-related charge.¹⁹⁴ 3 . 1 0 C O N C LU S I O N : T H E P O L I T I C A L L I V E S O F D E A D BODIES Adam Smith suggested that the basis for punishing crime was not the public good (as natural law writers proposed), but the resentment of the wronged party. For Smith, an act of punishment represented a balance between what the wronged party wanted and what an impartial spectator would tolerate.¹⁹⁵ This may be true of outcomes, but over burying suicides the sources demonstrate lack of agreement. In England and Scotland alike, the corpses of self-murderers were the sites of complex meanings and contested understandings, seldom the objects of universal revulsion or generalized sympathy. In this sense, MacDonald and Murphy’s statement about ritual rings true, but not as they mean it: ‘Ritual burials seem normally to have been carried out.’¹⁹⁶ They rightly present ritual as what Ed Muir calls ‘a formalized, collective, institutionalized kind of repetitive action’. However, Muir goes on to explain that in their function and meaning rituals are multi-vocal or ‘inherently ambiguous’.¹⁹⁷ Open to manipulation and frustration, the burial rites surrounding suicides were varied in their social acceptability, physical form, and ethical message. Laqueur recognizes the importance of disputed burials as a whole in the eighteenth and nineteenth centuries, and divides them into two sorts. The ¹⁹² ECA Edinburgh Hammermen’s minute books, vol. 6, ff. 39v, 247v. ¹⁹³ A. Shearer (ed.), Extracts from the burgh records of Dunfermline in the 16th and 17th centuries (Edinburgh, 1951), 153. ¹⁹⁴ C. Larner, Enemies of God: The witch-hunt in Scotland (London, 1981), 119. Healthy the night before, she was found dead in Edinburgh tolbooth one morning and, according to the diarist Lamont, ‘It was thought, and spoken by many, that she wronged her selfe, ether by strangling or by poyson’. G. R. Kinloch (ed.), The diary of Mr John Lamont of Newton, 1649–1671 (Edinburgh, 1830), 12. ¹⁹⁵ Smith, Lectures on jurisprudence, 104–5. Stein, Legal evolution, 42. ¹⁹⁶ MacDonald and Murphy, Sleepless souls, 78. ¹⁹⁷ Muir, Ritual, 3–6.

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ﬁrst he styles ‘relatively unprincipled quarrels between the vicar and some parishioners’. In the second, disputes between Anglican and Dissenter, ‘manifestly more was at stake’, because they addressed cultural pluralism displayed in multi-denominational Protestantism.¹⁹⁸ Yet, in reality, both were equally important, for both bore on the fundamental point (that Laqueur reserves to his second category) of ‘who was and who was not a member of the parish community’. Laqueur plays down the former, privileging ‘big’ political confrontations between religious denominations over the micro-political fractures and solidarities of the local community. However, he accepts that parochial disputes involved ‘major issues—the vicar’s assumption that burial in the churchyard required membership in good standing in a moral community versus the parishioner’s claim that it was a customary, secular right; the notion of a morally autarchic, homogeneous parish presided over by a priest versus that of a heterogeneous and more democratic moral community’.¹⁹⁹ Clandestine burial was, after all, a rejection of the church’s eschatological authority, and disputes over burial were signs of much broader tensions between clergy and parishioners.²⁰⁰ Indeed, all contested burials had a political dimension, because place and form of interment made a principled statement about social inclusion or exclusion in a community, membership of which was as important as particular labels of religious adherence. Some Scottish suicide burials exemplify ‘the more visible political action’ that Scott identiﬁes and that Laqueur privileges, but their parish focus does not make the burial of English suicides any less political. Burying some suicides formed part of what Scott terms ‘the infrapolitics of subordinate groups’, an unobtrusive but nonetheless very real ‘realm of political struggle’ that ‘provides much of the cultural and structural underpinning of the more visible political action’ with which historians are usually concerned.²⁰¹ It is ‘a technology and practice of resistance’ analogous with, if opposed to, Foucault’s technology of domination.²⁰² Here, the body was a site for resistance to attempts to impose an ofﬁcial system of meaning, and became a way of transforming or conﬂicting that meaning. Death required ‘the mobilization and symbolic interpretation of social relations’, but the conﬁguration and social content varied between different sorts of death.²⁰³ Huntington and Metcalf argue that ‘in many funeral rituals signs of life and community eclipse representations of death and separation’, but in the case of suicides given profane burial it is difﬁcult to construe the rituals as celebratory of life.²⁰⁴ Instead, those denied an observance or a place were left outside the ¹⁹⁸ Laqueur, ‘Cemeteries’, 193–4. Scott, Domination, 121–4, 226, had argued that ‘much of the resistance to the dominant culture took the form of religious heterodoxy’. ¹⁹⁹ Laqueur, ‘Cemeteries’, 193–4. ²⁰⁰ Spaeth, Church in an age of danger, 196, 200, 202. ²⁰¹ Scott, Domination, 183, 184. ²⁰² Ibid., 20. ²⁰³ Beaver, ‘Death, ritual and social organisation’, 390. ²⁰⁴ Huntington and Metcalf, Celebrations of death, 2.

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community of ‘the faithful that depart in fear of God’. They were subjected to what sociologist Harold Garﬁnkel calls a ‘status degradation ceremony’ that separated ritually the transgressor from the legitimate order, and placed him or her outside it, thus demarcating the normative community.²⁰⁵ Having been separated, some suicides were denied incorporation and were placed, in the words of anthropologist Victor Turner, more or less permanently in ‘a state of transition’.²⁰⁶ Turner’s work was inﬂuenced by the German ethnographer Arnold van Gennep, who posited that important life events were marked by ‘rites of passage’ involving three phases: separation, liminality, and incorporation. In the ﬁrst phase, withdrawal from the group took place, and movement occurred from one place or status to another. In the last, the person, or their body or spirit, was re-incorporated with the group in a different capacity. The liminal phase occurred between states. Throughout this chapter comparisons have been drawn between the righteous and the unrighteous dead, for the treatment accorded to self-murderers was not always unique, and assessing the difference between corpses and between calculation and convenience helps us to see what was special. In emergencies, necessity might cause regular burial preferences to be over-ridden for all the dead. During plagues, bodies were conventionally buried outside churchyards in case the infection reappeared when the graves were later reopened (as happened with family plots), and corpses were carted or dragged on a sledge or hurdle for burial rather than being carried by pall-bearers.²⁰⁷ The same happened after battles.²⁰⁸ The reasons were practical rather than symbolic: necessary omissions caused by external circumstances. Yet the corpses so treated were still seen as experiencing ‘bad deaths’ for the mode of conveying a corpse spoke of its value. Carting or dragging was deemed less honourable because of its associations with the punishment of criminals or miscreants and because it implied a person was friendless. The vicar of Ashton-under-Lyne was scandalized by the carting of a dead body, inserting in the parish register for November 1623: ‘A poore wenche of one Handfords found dead in a barne of Edward Walkers in Dokenﬁeld and brought to the church by the said Edward Walker in a cart’.²⁰⁹ A young witness in a defamation case of 1668 before the Manx church courts said that John Calister had accused Joney Harrison of attempted suicide, saying ‘she ought to be brought to Church upon Carr & horse and be buried with Joney Coole or worse place (meaninge one that strangled or drowned herself)’.²¹⁰ ²⁰⁵ Garﬁnkel, ‘Degradation ceremonies’, 420–24. ²⁰⁶ V. Turner, The forest of symbols (Ithaca, 1967), 94. ²⁰⁷ Robertson, South Leith records, 58–60. ERE, 1573–89, 72, 432. ²⁰⁸ ATS IX, 121. ²⁰⁹ Brierley, Parish registers Ashton, 355. ²¹⁰ Manx National Heritage Library, Diocesan presentments (1668), 19–21. See J. Addy, Sin and society in the seventeenth century (London, 1989), 121, for examples of prosecutions for defaming the dead before the church courts in the north of England.

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Using a cart to carry a body was primarily a statement about social status and reputation and only secondarily a convenience. It too was replete with (negative) meaning and the passage from point of death or lying to ﬁnal resting place could be marked by additional rituals that dishonoured the dead. For suicides so treated, these observances can legitimately be described as corporal or afﬂictive punishments because they not only removed the body from the conventional rituals of care, but also subjected it to visible indignities. By shaming the corpse, by shortening transition rituals, or by delaying or altogether preventing relatives from going through rites that helped them adjust to death, these punishments were arguably the most feared. They were the dragging and gibbeting of the corpses of some suicides and the dissection of others.

4 Corporal Punishment 4 . 1 T H E WO R K I N G S O F J U S T I C E : I N V E N T I V E N E S S I N P U N I S H M E N TS A N D T H E C R E AT I O N O F C U L P R I TS I N E A R LY M O D E R N E U RO PE The discussion of suicide burial in the previous section focused primarily on relations between church and people. In contrast, churches played no part in corporal or afﬂictive punishments, which are more a part of the history of crime and courts. In the 1970s historians dealt mainly with the eighteenth and early nineteenth century, but it quickly became clear that the sixteenth and seventeenth centuries were just as dynamic.¹ Punishments burgeoned in mid- and late-Tudor England in response to a rapid rise in criminal prosecutions and serious social dislocation.² It is now a commonplace that more people were executed in England between 1580 and 1630 than between 1630 and 1965.³ Not only was there more punishment, but also more varied sanctions. Thus, Richard van D¨ulmen characterizes the sixteenth century across Europe as showing ‘the most resourceful inventiveness in forms of punishment’.⁴ Martin Ingram sees the sixteenth century in England as a ‘creative’ period for penal practice, when shaming and paining punishments were devised and extended to deter and to reform, and when some communities formally established their customary rights to punish sexual and ¹ J. Innes and J. Styles, ‘The crime wave: Recent writing on crime and criminal justice in eighteenth-century England’, in A. Wilson (ed.), Rethinking social history: English society, 1570–1920, and its interpretation (Manchester, 1993), 23–68. G. T. Smith, ‘Civilized people don’t want to see that kind of thing: The decline of public physical punishment in London, 1760–1840’, in C. Strange (ed.), Qualities of mercy: Justice, punishment, and discretion (Vancouver, 1996), 21–51, adheres to the model of rapid change criticized by Innes and Styles. ² J. S. Cockburn, Calendar of assize records: Home circuit indictments, Elizabeth 1 and James I. Introduction (London, 1985), 111–20. J. A. Sharpe, ‘Civility, civilising processes, and the end of public punishment in England’, in Burke, Harrison and Slack (eds), Civil histories, 219. ³ P. Jenkins, ‘From gallows to prison? The execution rate in early modern England’, Criminal Justice History 7 (1986), 51–71. J. A. Sharpe, Judicial punishment in England (London, 1990), 28–36. J. S. Cockburn, ‘Punishment and brutalization in the English Enlightenment’, JLH 12, 1 (1994), 158–9, argues for a relatively stable rate of 600–700 executions a year between 1560 and 1790. ⁴ Van D¨ulmen, Theatre of horror, 102. Fenger, ‘Selvmord’, 69–71.

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moral offences.⁵ This was part of a wider European process which has been called ‘incriminating individual and collective behaviour’ or ‘the creation of culprits’.⁶ From the late Middle Ages, punishment evolved by accretion and erosion, through experimentation, emulation, and legislation. In England the process began at the end of the ﬁfteenth century, when bylaws or local ordinances were used increasingly by local manor and borough courts to deal with offences that were unfamiliar, to try out new procedures, and to inﬂict punishments appropriate to types of misbehaviour that fell outside statutory headings.⁷ All sorts of tribunals and governing authorities used the latitude allowed them to maintain order as much as they deployed specially granted sanctions against disorder.⁸ For example, punishments for common offences such as petty larceny were at the discretion of Tudor judges.⁹ Central conciliar courts too began to experiment with novel punishments for what seemed new offences. The principal contemporary writer on the workings of Star Chamber, William Hudson of Gray’s Inn, noted that ‘by the arm of sovereignty, [it] punisheth errors creeping into the Commonwealth . . . yea although no positive law or continued custom of common law giveth warrant to it’.¹⁰ As new punishments were introduced and more people punished, ways of mitigating sanctions were developed by courts, including ‘plea bargaining’, granting of clemency, and the extension of beneﬁt of clergy in the late Elizabethan period.¹¹ Creativity did not stop in the sixteenth century. John Beattie has shown that, between the Restoration and the Transportation Act of 1718, judges used extensive discretionary powers continually to experiment with punishments less acute than hanging.¹² ⁵ M. Ingram, ‘Shame and pain: Themes and variations in Tudor punishments’, in Devereaux and Grifﬁths (eds), Penal practice, 36–7, 52–8. K. Thomas, ‘The puritans and adultery: The act of 1650 reconsidered’, in D. Pennington and K. Thomas (eds), Puritans and revolutionaries (Oxford, 1978), 266–7. Kesselring, Mercy and authority, 25–45. ⁶ M-S. Dupont-Bouchat, ‘Guilt and individual consciousness: The individual, the church and the state in the modern era, sixteenth-seventeenth centuries’, in J. Coleman (ed.), The individual in political theory and practice (Oxford, 1996), 125–6. ⁷ M. K. McIntosh, ‘Finding language for misconduct: Jurors in ﬁfteenth-century local courts’, in Hanawalt and Wallace (eds), Bodies and disciplines, 100. M. Ingram, ‘Regulating sex in prereformation London’, in G. W. Bernard and S. J. Gunn (eds), Authority and consent in Tudor England (Aldershot, 2002), 83–4. ⁸ Walsham, Charitable hatred, 69–74. ⁹ As shown in William Yelverton’s notebook. Baker, Cases . . . of King Henry VIII , 352. ¹⁰ Hudson, ‘Star Chamber’, 107. Guy, Star Chamber, 46. Ogilvie, King’s government, 101–2. M. Ingram, ‘Juridical folklore in England illustrated by rough music’, in Brooks and Lobban (eds), Communities and courts, 68–72. J. Briggs, C. Harrison, A. McInnes and D. Vincent, Crime and punishment in England: An introductory history (London, 1996), 79. J. S. Burn, The Star Chamber. Notices of the court and its proceedings . . . (London, 1870), 57, 63, 64, 67, 71, 74, 115, 129, 147n, 153, 156, 175. ¹¹ J. S. Cockburn, ‘Trial by the book? Fact and theory in the criminal process, 1558–1625’, in J. H. Baker (ed.), Legal records and the historian (London, 1978), 71–9. J. H. Langbein, ‘Understanding the short history of plea bargaining’, Law & Society Review 13 (1979), 261–72, places the origins of plea bargaining in the late eighteenth century. ¹² J. M. Beattie, Policing and punishment in London, 1660–1750: Urban crime and the limits of terror (Oxford, 2001), ch. 7–9.

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If anything, late medieval and early modern Scots were even more judicially creative. Scottish courts of all kinds could deﬁne certain acts as crimes even if they had not been formally designated or even previously prosecuted as such; courts could also countenance actions that might potentially be deemed criminal. Scots law had no set means of dealing with the corporal punishment of suicide (or many other criminals) at a time when jurists and rulers thought there should be clear (and elaborate) sanctions for all sorts of offence. Even when a penalty like death was prescribed for felony, the means of achieving it was often left to local initiative. Penalties could legitimately conform to act of parliament, act of court, municipal law, or conventional usages.¹³ Courts seeking inspiration could also resort to the laws of other countries and the late ﬁfteenth and early sixteenth century was indeed the main period for the reception of Roman law into Scotland. An inﬂuential model for understanding changing levels of prosecution and punishment over the longue dur´ee was set out by Bruce Lenman and Geoffrey Parker as long ago as 1980. They see on the one hand a state, which demanded strict enforcement of its law, and, on the other, ‘popular attitudes’, which they believe demonstrated a reluctance to prosecute and punish.¹⁴ Between the thirteenth and the nineteenth century they posit a homogenization of attitudes as people came to accept the need to enforce the state’s formal laws. Lenman and Parker characterize ‘community law’ as restitutive and ‘state law’ as punitive.¹⁵ More recently, Peter Spierenburg has proposed a subtler model of changing public judicial sanctions that accommodates the ﬂuidity and creativity of early modern law. He sees prominent exemplary punishments like public mutilation disappearing in the early seventeenth century and the ‘privatization of repression’ extending at the same time.¹⁶ The decline of ofﬁcial corporal punishments on suicide, coupled with the continuing ‘popular’ or extra-judicial adherence to afﬂictive sanctions documented in this chapter also support his view that changing attitudes to punishment owe less to ‘Enlightenment’ or ‘civilization’ than to the fact that such sanctions came to be viewed as contested and divisive rather than accepted and socially integrative.¹⁷ Another useful insight of Spierenburg’s is that change was prolonged. Indeed, punishments with a measure of public shame had a healthier and a longer life in Scotland and the north of England than the south. Some modiﬁcations to Spierenburg’s model are suggested in the conclusion. ¹³ Pitcairn, Criminal trials, vol. 1, 415. ¹⁴ B. P. Lenman and G. Parker, ‘The state, the community and the criminal law in early modern Europe’, in V. A. C. Gatrell, B. Lenman and G. Parker (eds), Crime and the law: The social history of crime in Western Europe since 1500 (London, 1980), 15. ¹⁵ Ibid., 23. K. Wrightson, ‘Two concepts of order: Justices, constables and jurymen in seventeenth-century England’, in J. Brewer and J. Styles (eds), An ungovernable people: The English and their law in the seventeenth and eighteenth centuries (London, 1980), 21–46. ¹⁶ Spierenburg, Spectacle of suffering, 202–5. ¹⁷ P. Spierenburg, ‘The body and the state’, in N. Morriss and D. J. Rothman (eds), The Oxford history of the prison: The practice of punishment in Western society (Oxford, 1995), 58–61.

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4 . 2 O F F I C I A L S A N C T I O N S AG A I N S T T H E C O R P S E S O F S U I C I D E S : S H A M I N G T H E D E A D I N S C OT L A N D , C.1 5 6 0 – 1 7 0 0 Treatment of the body at the time of burial has dominated discussions of punishing the dead in early modern England. Yet focusing on burial alone may be misplaced. For one thing, the burial of some suicides was distinctive principally for what was denied, rather than done to, them. For another, contemporaries recognized that there were variations in practice within England and over time. They were also aware that other countries had more extensive shaming punishments. These were visited on the body of the suicide between the time of death and interment (sometimes after disinterment), for at some periods and in some parts of Europe a non-standard burial was regarded as insufﬁcient sanction. Notably in Scotland, the act of burial was usually rather simple, but the conveyance of the suicide’s corpse to its grave (or its disinterment and display) was sometimes accompanied by elaborate shaming rituals. Bodies were normally buried quickly, usually within a day or two of death, and a delay suggested that something was wrong. One routine reason was ‘arresting’ or detaining a body in connection with debt. Writing about the death of the heavily indebted countess of Winton in 1677, Sir John Lauder of Fountainhall, one of the Senators of the College of Justice, afﬁrmed that for creditors to arrest a corpse to prevent burial was ‘a most barbarous, inhumane custom. Yea the law condemns it for irrational’.¹⁸ The reason given was that no summons could be delivered to a corpse, ‘being dead, it is no more a person’. In contrast, creditors in Scotland could proceed against the goods of a debtor (by seizing them), or against his living body (by having him imprisoned), it being possible to lodge an arrestment on the dependence of an action (in security). These rights may have been thought to confer on creditors seeking preferential access to assets, the power to arrest the body of a dead debtor as collateral.¹⁹ Indeed, the practice was known in seventeenth-century Scotland, whatever lawyers might say, with the corpse a token or tool in negotiating social and economic relationships.²⁰ The justiﬁcation for seizing a physical body was to settle problems in a social body, for unresolved debt created difﬁculties for individuals and communities. Other unburied bodies could emit signs of social fracture. To demonstrate ¹⁸ Brown’s Supplement III, 136. Quoted in N. R. Whitty, ‘Rights of personality, property rights and the human body in Scots law’, Edinburgh Law Review 9 (2005), 228. ¹⁹ H. Hannah, ‘The sanctuary of Holyrood’, Book of the Old Edinburgh Club 15 (1927), 55–98. L. Ewen, ‘Debtors, imprisonment and the privilege of girth’, in L. Leneman (ed.), Perspectives in Scottish social history (Aberdeen, 1988), 53–68. Murray, Early burgh organization, vol. 2, 527–8. D. Englander, ‘Wage arrestment in Victorian Scotland’, SHR 60 (1981), 68–75. ²⁰ Lamont, Diary, 211–12.

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continuing animosity between families and the need for justice, the earl of Moray had remained unburied for six years after his death, and Lord Maxwell, killed in a feud with the Johnstons in 1593, for four years, when the Privy Council ordered their immediate burial on 16 February 1598.²¹ These peers’ corpses were embalmed and cosseted, but those of criminals and suicides could be detained above ground to rot or to be the subject of indignities. Whether in motion or in suspension, their bodies told of the illegitimacy of their deeds and the legitimacy of judicial authority. Diaries, judicial records, and ﬁnancial accounts provide examples of such corporal punishments designed to dishonour suicides. They relate mainly to Scotland, though in the north of England, too, shaming punishments of the dead are documented, and both societies had an extensive array of such sanctions for use against the living, especially in towns. The diary of an Edinburgh burgess called Robert Birrel contains a terse but arresting description of these sanctions. On 20 February 1598 ‘Thomas Dobie drounit himself in the Quarrel holes besyde the Abbay [at the eastern foot of Calton Hill], and upon the morne, he wes harlit [dragged] throw the toune backward, and ther after hangit on the gallows’.²² For all its few words, this described a complex ritual replete with symbolic meaning. The Town Treasurer of Edinburgh’s accounts ﬂesh it out, painting a vividly detailed picture. In the itemized record of outgoings or ‘discharges’ for most years between the late sixteenth and mid-seventeenth century there is a section headed ‘executions’ or ‘public executions’. Here the treasurer recorded the cost of judicial killings (by hanging, burning, drowning, and decapitation) that included the erection of scaffolds, purchases of rope and combustibles, sharpening ‘the maiden’ (an early guillotine introduced in 1564), and the subsequent treatment of corpses. For Thomas Dobbie, in life a messenger or executive court ofﬁcer who served summons, there are no less than ﬁve separate disbursements to various people in connection with the judicial processes surrounding his suicide.²³ His treatment was as deliberate and involved as the execution of some Jacobean witches and traitors. The ﬁrst item in the treasurer’s accounts was 13/4 (one merk) ‘payit to the workmen that cersit [retrieved] Thomas Dobie messenger quha drownit him self in the quarrell hoills at command of James Nisbet bailzie’. Second came the same amount ‘to the ofﬁcers that accompanyit the said workmen and awaittit upon thame at the said bailzeis command’. Next there was £1 Scots ‘to the workmen for inbringing the said Thomas Dobie to the laighe tolbuith and for unwaitting that quhile he wes condemnit and for beiring him to the sled and accompanying of him to the gallows in the borrow mure and hanging him up thair’. A further ²¹ RPCS V, 444–5. ²² ‘The diarey of Robert Birrel, burgess of Edinburgh . . . ’, in J. G. Dalyell, Fragments of Scottish history (Edinburgh, 1798), 45. J. G. Fyfe, Scottish diaries and memoirs, 1550–1746 (Stirling, 1927), 62. The escheat says he died on 2 March. ECA SL1/1/10, f. 177v (8 March 1598). ²³ ECA Town Treasurer’s accounts, 1596–1612, p. 131.

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merk went ‘for ane hors and ane sled to carrie him throw the toun and to the said gallows’. Finally there was £1 5s 0d ‘to the ofﬁcers for summoning ane asyis to him and for thair painis in convoying him to the galows at command of the bailzie’. The painstaking detail of the account suggests that this punishment was unusual and possibly even new. Dobbie’s treatment was certainly a more expensive (£4 5s 0d) and elaborate affair than the steps taken in connection with a nameless woman who is the subject of the next two entries on the same page of the accounts: 5/- ‘payit for ane sled that caryit ane woman to the said gallows that hangit hir self in Mungo Ross hous’ and 13/4 ‘to the workmen that attendit upon hir in the tolbuith and convoyit hir to the gallows and hanging hir up thair’.²⁴ Recognized places for displaying corpses were at the Boroughmuir to the south of the city and the Gallowlee between Edinburgh and Leith; bodies were allowed to rot and the spoil left as a reminder of the immanence of justice.²⁵ The other oddity about Dobbie’s case lies in the intriguing reference to the means of his death contained in the Court of Session judgment against his children’s tutor: that he ‘pat violent handis in him self drownit himself maist violentlie efter ane indirect forme and manner in the quarrell hoills’.²⁶ The detail is obscure, but a later assignation of his escheat from 1613 describes him ‘thrawing of his bodye heidlong in the quarrell hollis’.²⁷ Like the Nor Loch, the Quarry Holes had traditionally been used for ducking moral offenders or for executing women by drowning, and their shore as an ignominious burial place for executed felons.²⁸ Finally, the composition for the gift of Dobbie’s forfeiture or ‘escheat’ is the largest recorded for any suicide: 2,000 merks or £1,340 Scots.²⁹ That Dobbie (and some other suicides) were so punished distinguishes Scottish practice from what was usual in England and puts it alongside continental tradition.³⁰ The detail in Thomas Dobbie’s case is unusually full, making it clear that the proceedings had a punitive rather than restorative or redistributive function. Dobbie was subjected to an accumulation of punishments, each one designed to make his body pay for speciﬁc infringements, his treatment smacking of elaborated revenge as much as calculated atonement. As a court ofﬁcer, Dobbie was supposed to be a model of propriety. Messengers were important men who ²⁴ Idem. ²⁵ ERE, 1557–71, 221. ERE, 1573–89, 480; see also 471–2, 484. ²⁶ NAS CS7/173, f. 393v. ²⁷ NAS E2/32 (10 April 1613). ²⁸ J. A. Fairley, ‘The old tolbooth, with extracts from the original records’, Book of the Old Edinburgh Club 4 (1911), 92. ERE, 1528–57 , 42–3. C. Rogers, Social life in Scotland from early to recent times 3 vols (Edinburgh, 1884), vol. 2, 240–1. It seems to have retained the ignominious association. In June 1755 Nicol Brown was executed and hung in chains at Edinburgh for burning his wife alive. Within days his corpse was cut down and ﬂung in the Quarry Holes. Only a few days after it was reinstated at the Gallowlee, it was again removed. GJ 723 and 725. ²⁹ NAS PS1/69, f. 232. ³⁰ C. Lis and H. Soly, Disordered lives: Eighteenth-century families and their unruly relatives (Cambridge, 1996), 27. Merrick, ‘Patterns of suicide’, 4–5, 29–30. Schnegg, ‘Justice et suicide’, 77–87.

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lived in the public eye and were a part of the judicial machinery: Dobbie’s suicide may have been viewed as close to treason, and his punishment was tailored to suit. Just how seriously messengers’ lapses were taken is clear from the exemplary punishments for dereliction of duty suffered by other ofﬁcers around this date. An example is Archibald Cornwall, sentenced to death in 1601 for inadvertently nailing a board with a portrait of the king on a public gibbet—which was burnt.³¹ Another messenger was one of the few felons gibbeted in seventeenth-century Scotland: John Dow McGregor, convicted of theft, robbery, and murder in 1637.³² There is a tinge of personal animosity in the way all three men were treated, for messengers delivered court summons and arrested for debt, meaning they were unpopular ﬁgures; some had a reputation for corruption.³³ Indeed, it is possible that public opinion demanded their exaggerated punishment. Dobbie’s suicide is not the only one Birrel recorded for sixteenth-century Edinburgh. Another was that of Malie Zounger, who hanged herself in her own house in Barclay’s Close on 22 April 1568.³⁴ This is all Birrel says, suggesting that her body was not treated in the same way as Dobbie’s—perhaps because there was plague about at this time and the sick were housed at the Boroughmuir.³⁵ Nor is any mention of the shaming of Sibilla Dewar, who drowned herself in the Nor Loch on 19 June 1597.³⁶ Indeed, absences from the Town Treasurer’s accounts make it clear that suicides were not invariably ‘punished’, for neither of these women is mentioned in the very detailed records. Dobbie was not unique in these accounts, but his punishment was one of only a few comparable judicial interventions. With one exception (in 1565), corporal punishment of self-murderers is only mentioned in Edinburgh’s accounts between 1598 and 1626. During this period, fourteen suicides are recorded, some simply buried, ﬁve dragged to a place of execution or display to be interred, and three gibbeted. Comparing corporal punishments in treasurers’ accounts with records of ﬁscal penalties in gifts of escheats allows analysis of whether punishments were inﬂicted uniformly or selectively. In short, there are cases like Dobbie’s where an escheated person was corporally punished, others where only an afﬂictive punishment is recorded, and others with only burial mentioned. The comparative exercise is not straightforward. Because individuals are not usually named in the accounts, it can be difﬁcult to tell whether those judicially shamed were also those escheated. Dobbie’s escheat is not recorded in the Register of Signatures or in the town council minute books (it can be found in the Register of the Privy Seal³⁷), though the council minutes do mention those ³¹ NAS JC27/45. Pitcairn, Criminal trials, vol. 2, 349–51. ³² Arguments and decisions . . . Collected by Mr MacLaurin, xl. ³³ Goodare, Government of Scotland , 174–5. Sanderson, Mary Stewart’s people, 135–48. ³⁴ ‘The diarey of Robert Birrel’, 15. ³⁵ ERE, 1557–71, 253. ³⁶ ‘The diarey of Robert Birrel’, 44. For her escheat see NAS PS1/69, f. 123 and ECA SL1/1/10, f. 134. ³⁷ According to NAS CS7/173, ff. 393–4.

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of Thomas Simson and Daniel Walker. No corporal punishment of a suicide is accounted in the years these men were escheated, or for the escheats of John Wilsoun (1586), Martin Hog (1588), or John Johnstoun (1603)—though there is a cryptic reference to ‘careing of ane deid man to the burrowmure to be hangit’ in the last year.³⁸ Details of the death of Marioun Gray are recorded. Servant to Henrie Bird, indweller in Leith, she hanged herself in the tolbooth.³⁹ On 31 March 1598 10/- was paid to a carter ‘for taking Marioun Gray on the cairt out to the mure (quha hangit hir self)’ and another 10/- to workmen ‘for lifting her on the cairt & off againe and attending on hir’.⁴⁰ Also registered is the escheat of Marioun Strudgeon, spouse to James Spens, broker in Edinburgh.⁴¹ On 29 June 1619 her body was dragged on a sled down the High Street and then taken to the Boroughmuir.⁴² However, any connection between documented forfeiture and corporal punishment is at best weak. Even without names in the accounts, the sex, means of suicide, approximate date, and place of death are known, and these do not match with the escheats. There was no necessary connection between documented forfeiture and ofﬁcially recorded corporal punishment. Other patterns are similarly hard to ﬁnd. Lieven Vandekerckhove speculates that women were not dragged on the continent, but they were in Scotland—even if the numbers that can be documented are too small safely to generalize about whether the practice was sex related if not sex speciﬁc.⁴³ The clearest common feature is that bodies dragged and/or gibbeted were usually either criminals and/or outsiders. For example, on 8 January 1614, 36/- was given ‘to the workmen for taking away of ane heland [Highland] man to the borrowmuir traillit throw the toune callit Donald Makgilliff quha strangillit himselff’.⁴⁴ In 1622 four workmen each received 6/- ‘for takin ane boy out of the theiﬁs holl [the tolbooth’s lowest dungeon] that devorn [destroyed] him self ’; a further 12/was paid out by the Town Treasurer ‘for ane slaid to tak him to the borrow mure’.⁴⁵ Nor was treatment standardized. In 1598, 4/- was disbursed to make a grave for a woman who drowned herself, and in May 1602 5/4d was paid ‘for careing of ane woman that hangit hir self to the burrewmure’.⁴⁶ The former was the standard sum for a small grave and does not indicate a ‘punishment’; the latter payment was too low to have involved a horse and sled processing through the town. An entry for 1 February 1604 also suggests simple movement of the body ³⁸ ECA SL1/1/8, f. 39. SL1/1/8, f. 157. SL1/1/11, f. 111v. Town Treasurer’s accounts, 1596–1612, p. 464. ³⁹ NAS E2/21, 28 April 1599. ⁴⁰ ECA Town Treasurer’s accounts, 1596–1612, p. 197. ⁴¹ NAS E2/41, 2 July 1619. ⁴² ECA Town Treasurer’s accounts, 1612–23, p. 781. ⁴³ Vandekerckhove, On punishment, 53. ⁴⁴ ECA Town Treasurer’s accounts, 1612–23, p. 195. See also p. 893. ⁴⁵ Ibid., 1136. In 1556–7 it had taken four men a full week to clean the thieves’ hole. ECA Town Treasurer’s accounts, 1552–67, p. 200. ⁴⁶ ECA Town Treasurer’s accounts, 1596–1612, p. 346.

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to its burial place: ‘Payet to foure workmen for careing of ane woman quha haid drounet hir self in Saind Mythallis [St Michael’s] Well fra the said well to the trone and fra the trone to the buriall place’.⁴⁷ The woman was treated with a measure of decency, being carried by hand rather than carted or dragged. Nor was exposing her unusual, as unidentiﬁed bodies or people who died in suspicious circumstances were displayed for ‘sighting’ at the Tron to prevent rumours about cause of death.⁴⁸ The Salt or Over Tron was a pillar and weighing point in the middle of a marketplace located on the High Street, halfway between the Castle and Holyrood Palace. Much frequented, it was also a place of proclamation and of corporal punishment. On 26 March 1604 the Town Treasurer paid 20/- ‘for bringing ane man thae callit smuthe fra the north loch to the trone and for burying of thame [sic] in Saind Paulis Wark’.⁴⁹ Until the sprinkling of references early in 1598, there is only a single example of judicial proceeding against Edinburgh suicides. This comes in 1565 when 6/was paid to six men for carrying to the gallows a man who had hanged himself in the tolbooth.⁵⁰ Given the small expenditure and carriage by hand this was a burial, not an exemplary punishment. It occurred at a time of pronounced tensions and royal ire against the city of Edinburgh—and a rebellion within the kingdom.⁵¹ The ﬁnal recorded case in Edinburgh Town Treasurer’s accounts comes from July 1626: 48/- ‘for bringing James Coltard quha hangit him selff fra Sklaitters clos to the tolbuith and fra the tolbuith to the veighous and drawing him upon ane slaid doune the calsay and taking to the borrowmure’. The ‘calsay’ was the paved part of what is now known as the Royal Mile, between the Castle and Holyrood Palace; the weigh house stood at the top of the West Bow meaning that the corpse had to taken uphill before being dragged down the entire cobbled length. An additional 20/- was allowed for a horse and sled, and a further 6/for making his grave.⁵² Although accounts up to 1690 have been examined, this 1626 example is the last located mention of payment for judicial punishment of the corpses of Edinburgh suicides. Examples of corporal punishment from the city after the 1620s and from elsewhere c.1590–1720 were exclusively associated with criminals who killed themselves. One example is Isobel Manteith, named as an accomplice to witchcraft at Aberdeen in March 1597. She hanged herself while imprisoned and was dragged through the streets of Aberdeen and buried.⁵³ This is the only accounting for a ⁴⁷ Ibid., 571. ⁴⁸ It remained normal to take the unknown dead to the nearest church to be ‘owned’. GJ 605 (March 1753). AJ 3860 (9 January 1822). ⁴⁹ ECA Town Treasurer’s accounts, 1596–1612, p. 572. ⁵⁰ ECA Town Treasurer’s accounts, 1552–67, p. 471. ⁵¹ R. Chambers, Domestic annals of Scotland 3 vols. (Edinburgh, 1858–61), vol. 1, 32–3. ⁵² ECA Town Treasurer’s accounts, 1623–36, p. 286. ⁵³ N. Adams, Scotland’s chronicles of blood: Torture and execution in bygone times (London, 1996), 96, states that she was buried at the foot of the gallows, but the burgh accounts do not mention this. ‘Extracts from the accounts of the burgh of Aberdeen’, The Miscellany of the Spalding Club V

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suicide in the ﬁnancial records of Aberdeen between the 1580s and 1640s. The fates of two accused witches who died in prison at Dunfermline during 1643 are described slightly differently. Janet Fentoun who ‘died miserably in ward and wes brocht to the witch knowe, being trailed and carted thereto and castin into a hole there withot a kist [cofﬁn]’ may have died of natural causes, but her treatment mirrors the second, a deﬁnite suicide, two months later. It occurred in the low thieves’ hole where Isobel Marr, awaiting trial, ‘hangit hersel and was cairyed to the witch knowe and yerdit [buried]’.⁵⁴ A single, late entry about a dragging appears in Stirling burgh accounts for 1719–20: ‘Item for harling Jean Gilmer to the shore on a slid when she hanged herself 12s’.⁵⁵ There is a further entry ‘for putting Jean Gilmer on a sled & burying her 18s’. With another woman, Jean had been put ‘on the Tron’ and whipped, she had sat on the stool of repentance (‘coxstool’) and had been banished from the town, all during the few months prior to her death.⁵⁶ Gilmer’s extensive criminal record explains her corporal punishment, whereas another woman (known only as ‘Morison’) who hanged herself in Stirling tolbooth, was simply buried.⁵⁷ The other main towns do not seem to have accounted for punishing suicides, but they did for shaming living offenders and sometimes for elaborate capital penalties. Nearly a century of Ayr burgh accounts, ﬁnishing in 1624, contain minute detail of payments for hangings, burnings, scourgings, brandings, the mounting of a severed hand, and the building of a gibbet and stocks—but no references to punishing suicides, despite an escheat of one being registered in 1603.⁵⁸ 4 . 3 E X P L A I N I N G O F F I C I A L P U N I S H M E N TS I N J AC O B E A N A N D L AT E R S C OT L A N D Ofﬁcial corporal punishment of Scottish suicides was related to certain communities, speciﬁc types of individual, and an identiﬁable period of time. As Anton Blok has noted of the Low Countries, such punishments were ‘true spectacles, intended for an audience that included kinsmen, friends, neighbors, and other fellow townsmen of the condemned’.⁵⁹ Blok’s reference to ‘townsmen’ is not (Aberdeen, 1852), 65: ‘for trailling of Manteith throw the streittis of the toun in ane cart, quha hangit hir self in prisoun, and for cart hyir and eirding [burying] of hir, 10s’. Another witch was dragged through the town prior to being burned. T. Mair, Records of the parish of Ellon (Aberdeen, 1876), 48. ⁵⁴ E. Henderson, The annals of Dunfermline and vicinity from the earliest authentic period to the present time, A.D. 1069–1878 (Glasgow, 1879), 309–10. Henderson gives the source as the ‘register of deaths’. ⁵⁵ Stirling District Archives B66/23/1, p. 2 of discharges for 1719–20. ⁵⁶ Ibid., 9–10. ⁵⁷ Stirling District Archives B66/23/2, p. 13 of discharges for 1723–4; see also pp. 11, 16. ⁵⁸ NAS PS1/74, f. 37. G. S. Pryde (ed.), Ayr burgh accounts, 1534–1624 (Edinburgh, 1937), 111, 125, 136, 141, 154, 156, 183, 200, 202, 210, 214, 243, 267. ⁵⁹ A. Blok, ‘The symbolic vocabulary of public executions’, in J. Starr and J. F. Collier (eds), History and power in the study of law: New directions in legal anthropology (London, 1989), 46.

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casual, for shaming punishments used civic space to create public shame in a way less suited to dispersed rural settlements. Preoccupation with punishment was a function of a growing concern with crime and exemplary retribution found across Europe, which resulted in both a strong propensity to punish and an elaboration of the sanctions available. Julian Goodare writes that the Scottish ‘political system was becoming more stable after about 1598’, but that stability was buttressed by a palpably more interventionist punishment regime.⁶⁰ Most documented corporal punishments of suicides were inﬂicted in Edinburgh, and the city’s political situation and legal privileges explain this. Relations between James VI and Edinburgh (especially with its clergy) were sometimes tense during his reign, notably in the late 1590s. James left Edinburgh in 1596 after a ‘treasonable mob’ had made it unsafe for him and his court. He also removed the College of Justice and nobility from the city and only returned in 1597, when the dissidents had been cowed, to instigate a period of close intervention in church affairs.⁶¹ By that stage the town council was desperate ‘to putt all in the king’s will, both concerning kirk and policie, to save their goods, and promised that their ministers sould not be suffered to preache to them till they be reconciled with the king’, the aim being to pacify ‘his hienes wrayth consavet aganis’ the inhabitants.⁶² Always alert to the economic beneﬁts they enjoyed by the presence of the royal and senior law courts, the magistrates became acutely concerned with law and order. And they had the money to spend on what were elaborate and expensive punishments, for Edinburgh was by far the richest burgh in sixteenth- and seventeenth-century Scotland. Also the largest town, it had unique advantages and special problems.⁶³ Edinburgh’s judicial privileges were a prominent example of those enjoyed by all royal burghs. A charter of 1482, recognizing the special relationship between burgh and crown, granted Edinburgh magistrates the right ‘to take tryall of Murthers and Slaughters committed within their bounds’—unusually wideranging criminal powers (including the ofﬁce of Sheriff infra se) only slightly attenuated in the reign of James IV.⁶⁴ An Act of Parliament in 1593 (c. 35) required the town to ‘To tak and apprehend personis of all estaitis quha hes contravenit his maiesties lawes’ within its jurisdiction because it was ‘the cheif place quhairin greitast conﬂuence of people Is’.⁶⁵ Following a gun battle on the streets of Edinburgh between three feuding lairds, an act of the Privy Council in July 1597 encouraged all inhabitants of burghs to help the magistrates stop ﬁghts ⁶⁰ Goodare, Government of Scotland , 146–7. M. F. Graham, ‘Conﬂict and sacred space in Reformation-era Scotland’, Albion 33 (2001), 383–4. ⁶¹ H. Arnot, The history of Edinburgh (Edinburgh, 1779), 42–9. RPCS V, lix–lxxx. Makey, Church of the covenant, 156–7. Juhala, ‘Household and court’, ch. 4. ⁶² The history of the Kirk of Scotland. By Mr David Calderwood, sometime minister of Crailing, 8 vols. ed. T. Thomson (Edinburgh, 1845), vol. 5, 530–1; vol. 8, appendix 45. ERE, 1589–1603, 174. ⁶³ Makey, Church of the covenant, 153. ⁶⁴ Charters relating to Edinburgh, nos. liv, lxiv. ⁶⁵ APS IV, 28–9.

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and riots.⁶⁶ James rebuked the burgh of Aberdeen in June 1596 for allowing citizens openly to wear weapons.⁶⁷ However, Edinburgh’s political position, its wide-ranging criminal jurisdiction, and its right ‘to make statutes for the good government of the town’, made its extensive sanctions unusual.⁶⁸ Prominent executions signalled the uneasy atmosphere of the late 1590s. For example, ﬁve men were hanged at Edinburgh around 8 February 1598 for counterfeiting writs, ‘whilk was great pity to see’ according to Birrel.⁶⁹ This was a troubled and a troubling time. On 25 February 1598 (17 February according to Birrel),⁷⁰ Mr James Melvill recorded in his diary, ‘that maist conspicuus eclipse of the Sunne, quhilk strak al creatours with sic estonishment and feir, as tho the day of Judgment had bein com’.⁷¹ Melvill knew the eclipse was coming. Though ‘nocht ignorant of the naturall cause thairof . . . when it cam to the amazfull, uglie, alriche [eldritch] darknes, I was cast on my very knies, and my hart almaist fealled’. Occurring between the meetings of the Provincial Synods of the Kirk and the General Assembly, this set the tone for the meeting of the Assembly in late March, with ministers from Edinburgh, St Andrews, and other presbyteries airing grievances that vexed the king. James took this opposition personally and he may have decided to treat offence against the crown personally, for in the case of suicide the sovereign was the only wronged party at law. Justice was conceived personally and it was, for example, conventional for the relative of a murder victim to prosecute his or her killer.⁷² Yet although he interfered actively in justice, James did not originate the punishments any more than he did the witch-hunts that characterized his reign.⁷³ In a context of heightened concern with order, his attitude simply concentrated minds about the more assertive use of existing judicial latitude to authorize, elaborate, and stylize punishments, and thus maintain the peace by deterrence. Punishments of suicides might be meticulously judicial, including sometimes formally trying the corpse. In the case of Thomas Dobbie, Edinburgh council ordered ‘that his body be putt to ane assyse and being convict that it be tayne and drawin throw the toun in ane cairt and hang in the gallows in the Borrow mure’.⁷⁴ Similarly, the council minutes of January 1611 record the gift of the escheated goods of Daniel Walker to his wife and ⁶⁶ RPCS V, 403. CSP Scotland vol. 13, pt. 1, 57. ⁶⁷ Chambers, Domestic annals, vol. 1, 343 ⁶⁸ Arnot, Edinburgh, 495. Pitcairn, Criminal trials, vol. 1, 129–30, 415. ⁶⁹ Quoted in Chambers, Domestic annals, vol. 1, 295. ⁷⁰ ‘The diarey of Robert Birrel’, 45. ⁷¹ The diary of Mr James Melvill, 1556–1601 (Edinburgh, 1829), 290. ⁷² Pitcairn, Criminal trials, vol .2, 112–24. ‘The diarey of Robert Birrel’, 48–9. ⁷³ M. Lynch, ‘The crown and the burghs’, in Lynch (ed.), Early modern town, 55–80. Goodare, Government of Scotland , ch. 4, discusses the personal responsibility of the king for events in his reign. L. Normand and G. Roberts, Witchcraft in early modern Scotland: James VI’s demonology and the North Berwick witches (Exeter, 2000). ⁷⁴ ECA SL1/1/10, f. 177v.

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son following the suicide ‘quhairof his deid corp wes convict in ane court haldin be the bailies’.⁷⁵ Pronouncement by an assize established a death was suicidal, thereby facilitating or formalizing forfeiture and (where inﬂicted) sanctioning ofﬁcial punishment, though in practice a formal hearing was not essential unless it looked like the cause of death or any penalty would be disputed.⁷⁶ Trying the dead was as novel and remarkable as punishing the dead. There was a precedent from 1320, but not until 1540 did parliament conﬁrm (in order to legitimize action against a particular individual) that it was possible ‘to raise summondis and move ane actioun agains ane persoun that is deide’. However, the estates recognized that this was unusual and unpopular, noting: ‘it is murmurit that it is ane noveltie’.⁷⁷ The two generations following offer a handful of examples of traitors as well as suicides. In January 1603 Francis Mowbray was killed while trying to escape from Edinburgh castle, where he had been imprisoned while awaiting trial for treason. A royal warrant was issued requiring the Justiciary Court to pass sentence on the corpse (dragged backwards to the Tolbooth for its trial) ‘now presented on pannel (i.e. produced at the bar) to be dismembered as a traitor; his body to be hanged on a gibbet, and afterwards quartered; his head and limbs stuck up on conspicuous places in the city of Edinburgh; and his whole estate to be forfeited’.⁷⁸ Trying the dead seems to have fallen into disuse for treason and suicide soon after this and there is no mention of the body being present when, at a court of the bailiary of Cunningham (Ayrs.) held on 13 January 1692, an inquest by ﬁfteen men recorded the death by strangling or hanging of James Muir in Auldhall, clerk, and his guilt of self-murder; the marginal entry is simply: ‘Sentence anent Muir’.⁷⁹ Writing after the Restoration, Mackenzie argued that it was not necessary to ‘convict’ a dead person (though suicide was a crime and crimes were tried by justices) as ‘dead men cannot be tryed by an Assize’; he struggled because he knew the precedents.⁸⁰ Other things had also changed. By the ⁷⁵ ECA SL1/1/12, f. 56 (p. 111). ⁷⁶ Erskine, Institute, II.V.57. ⁷⁷ G. Neilson and H. Paton (eds), Acts of the lords of council in civil causes, vol. II, 1496–1501 (Edinburgh, 1918), lxi–lxii. APS II, 356, 424. ⁷⁸ Arnot, Criminal trials, 65–6. Pitcairn, Criminal trials, vol. 2, 406. ‘The diarey of Robert Birrel’, 57, adds that the body was ‘traillit to the gallows’. See Arguments and decisions . . . Collected by Mr MacLaurin, xxxviii, for further ‘very singular’ or ‘outrageously severe’ examples of James’ will in judicial matters. C. Innes, Lectures on Scotch legal antiquities (Edinburgh, 1872), 150, thought that trying dead people for treason, ‘borrowed from the law of Rome, was not abolished till after the Union’. Walker, A legal history of Scotland, vol. 2, 528. ⁷⁹ NAS RH11/19/5, p. 32. ⁸⁰ The laws and customs of Scotland in matters criminal, I.XII.V. In France there was also an appointed spokesman at the inquiry into the death (un curateur) whose job it was to represent the dead person—but who was also the object of the judicial process conducted by a magistrate. Joblin, ‘Le suicide’, 92–4. Schnegg, ‘Justice et suicide’, 75–7. Merrick, ‘Patterns of suicide’, 4–5, 29–30.

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late seventeenth century and probably well before, suicides were no longer gibbeted in Scotland as they still were on the continent.⁸¹ After the 1620s in Edinburgh, dragging of suicides seems to have been a purely popular or extra-judicial punishment, and gibbeting, which required ofﬁcial involvement because of the ownership of the structure, was not inﬂicted on self-murderers. After Janet Hill hanged herself in a cell on 26 September 1679 while awaiting trial for witchcraft, she was dragged at a horse’s tail for burial as a felon under the gibbet at the Gallowlee.⁸² No ofﬁcial source has any mention of Janet’s post-mortem punishment and by this date the Gallowlee was not a regular place of display, pointing to a lack of ofﬁcial participation.⁸³ Changes in styles of record-keeping cannot explain the change, for the burgh accounts remained highly detailed. Instead, the acceptability of such penalties had changed. Punishments of any kind were less frequently handed out than before, causing the master of the city’s tolbooth to complain in 1702 that his business was suffering ‘by the mercy of the present mild government’.⁸⁴ Other procedures were falling out of favour, including the unsanctioned use of torture. Conceived as a precise and regulated judicial tool, torture had been allowed in certain circumstances throughout the early modern period and was not formally banned until 7 Anne c. 21. While the pre-1708 Privy Council and Parliament of Scotland often reiterated that only they were competent to authorize the extraction of information by inﬂicting mental or physical pain, they did not always curb the illicit local appropriation of their right. Unwillingness, rather than inability, seems to have been behind this. Brian Levack describes the ‘frequent, unwarranted, illegal’ use of torture against witches.⁸⁵ Such usages were termed ‘unwarrantable’ in contemporary sources, but they were not strictly ‘illegal’; it is only slightly more accurate to term them ‘unauthorised’ or ‘primarily an extra-judicial procedure’.⁸⁶ Instead, they came out of a different understanding of the law from the positivistic or dogmatic one that came to prevail from the mid- to late seventeenth century. ⁸¹ The laws and customs of Scotland in matters criminal, I.XIII.I: ‘all Christian Nations punish severely Self-Murder, as Murder, for they conﬁscat their Moveables, and deny them Christian Burials: to which some Nations, for a further mark of Ignominy, add the hanging them upon Gibbets: but this last, our Nation uses not’. Mackenzie probably meant to contrast with France. Merrick, ‘Patterns of suicide’, 4–5, 29–30. Joblin, ‘Le suicide’, 85–6, 95–7. C. Koslofsky, ‘Suicide and the secularization of the body in early modern Saxony’, C&C 16, 1 (2001), 45–70. Egmond, ‘Execution, dissection, pain’, 102–3. ⁸² J. MacKay, History of the burgh of the Canongate (Edinburgh, 1879), 87. Arnot, Criminal trials, 368–9. ⁸³ ERE, 1665–80, 229. ⁸⁴ ERE, 1701–18, 23. ⁸⁵ B. P. Levack, ‘Judicial torture in Scotland during the age of Mackenzie’, in H. L. MacQueen (ed.), The Stair Society: Miscellany four (Edinburgh, 2002), 196. ⁸⁶ RPCS 3rd series I, 188–9 (1662). B. P. Levack, ‘State-building and witch hunting in early modern Europe’, in J. Barry, M. Hester and G. Roberts (eds), Witchcraft in early modern Europe: Studies in culture and belief (Cambridge, 1996), 106 and n. C. Jackson, ‘Judicial torture, the liberties of the subject, and Anglo-Scottish relations, 1660–1690’, in T. C. Smout (ed.), Anglo-Scottish relations from 1603 to 1900 (Oxford, 2005), 78.

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4 . 4 B EYO N D C O U RTS A N D O F F I C I A L S : P O P U L A R D E S E C R AT I O N S O F S U I C I D E S ’ B O D I E S I N S C OT L A N D , C .1600 – 1820 There is insufﬁcient evidence to argue with conﬁdence that either dragging or gibbeting was normally (or even frequently) visited against suicides in Scotland; the rarity in diaries and ﬁnancial accounts and the tone of descriptions create a strong sense of the unusual.⁸⁷ Corporal punishment was localized and selective of criminals at a speciﬁc period of intense concern with public order. Importantly, none of these afﬂictive penalties had explicit sanction in Scots law, even if they were carried out ofﬁcially, justiﬁed by the needs of civic order, and paid for from public funds. They were in practice legally acceptable, but had not been given formal legal deﬁnition. This was not unusual in early modern Scotland. In the heyday of creativity, legal entities like baronies and burghs sometimes stretched their chartered privileges, not only burghs’ trading rights, but also civil or criminal jurisdictions, for early modern Scotland was a much more devolved polity than England. However, delegated judicial rights were not always precise, especially when it came to maintaining order. The issue was not maverick franchises (what Foucault called ‘a bad economy of power’)⁸⁸, but bodies with criminal jurisdictions or individuals with judicial or quasi-judicial powers using the latitude allowed them to impose punishments.⁸⁹ In short, ‘the legitimate frontier of the power to punish’ was not ﬁxed during the early modern period, allowing both a time of penal creativity and, eventually, one of penal consolidation.⁹⁰ ‘It became necessary to get rid of the old economy of the power to punish based on the principles of the confused and inadequate multiplicity of authorities, the distribution and concentration of the power correlative with actual inertia and inevitable tolerance, punishments that were spectacular in their manifestations and haphazard in their application.’⁹¹ There is much to be said for Foucault’s analysis, but it is teleological, and changes in the corporal punishment of suicides did not just shift from creativity by multiple sources of judicial authority to monopoly by one. Formal and informal sanctions co-existed throughout the early modern period and, when change occurred, judicial authorities sought to stop, not monopolize corporal punishment of suicides. From the period when legitimate and illegitimate coexisted comes an example of ‘unauthorised or contested applications of the ofﬁcial penalties’.⁹² In June 1614 Janet Barclay, the wife of John Galt in ⁸⁷ Egmond, ‘Execution, dissection, pain’, 95. ⁸⁸ Foucault, Discipline and punish, 79. ⁸⁹ B. Garnot, ‘Justice, infrajustice, parajustice et extrajustice dans la France d’ancien r´egime’, Crie, Histoire et Soci´et´es 4 (2000), 103–20. ⁹⁰ Foucault, Discipline and punish, 74. ⁹¹ Ibid., 87. ⁹² Ingram, ‘Juridical folklore’, 72.

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Kirkstyle of Dreghorn (Ayrs.), killed herself. After taking advice from the bailiedepute of the bailiary of Cunninghams, John buried her outside the north wall of the churchyard, on a piece of land on the Dreghorn estate he rented from the Montgomery family. Janet had been at rest for nearly three weeks when forty people (eighteen men were named), all tenants or servants of the earl of Glencairn, came armed and at night to Galt’s house, urging him to accompany them ‘to the raising of the corps’ of his dead wife. John refused and the crowd repaired to the burial site, And thair most unhumanlie, and efter a very insolent and tumultuous manner, thay violentlie brack up the grave and buryall place foirsaid, raisit the corps of the said umquhile Jonat furth of the same, quhilk had xx dayis of befoir lyine buryed thairintil, knett ane teddir to hir feitt, and unhonnestlie harlit hir backward be the heillis from the grave to the said complineris awne dure, sett hir up at the dure, and with many horrible aith avowit and said that, yf the corps were buryed agane in the said grave or ony uther pairt within that parrochine, that then they sould do the compliner a worse turne, and sould als oft raise the said corps as he salhappin to bury the same in the saidis boundis.⁹³

Galt complained about this ‘oppression’ to the Privy Council of Scotland in its role as a court.⁹⁴ He won his case and the wrongdoers were ﬁned and imprisoned. A number of things are interesting about this ritual. First, it is best seen as an appeal for ofﬁcial sanction, or a reminder that judicial punishment could, and should, be meted out to offenders, despite the incident being ofﬁcially proscribed and punished. Communities could pursue as well as protect malefactors, both through formal legal mechanisms and ‘popular’ sanctions, as they sought out the interstices left by the omissions and latitudes of justice to shape an alternative, supplementary political economy of punishment.⁹⁵ This was an unsanctioned implementation of a formal punishment at a time when some courts were prepared to countenance such acts. One distinctive component not found in any judicially authorized equivalent was placing the corpse against the door of its former dwelling, an action with two possible explanations.⁹⁶ One was to attribute blame for the death: supporters of an executed criminal who protested innocence might convey the body from the gallows to the prosecutor’s door, thus ‘laying his death’ there.⁹⁷ Perhaps Galt was a bad husband. The other explanation is that dead ﬂesh could have harmful effects, as when John Brughe was accused in 1643 of disinterring three corpses and putting ﬂesh from them above byre or stable doorways to destroy other people’s livestock.⁹⁸ Just as using a special exit for a suicide prevented contamination of ⁹³ RPCS X, 787–8. ⁹⁴ Ibid., 260. ⁹⁵ J. R. Kent, ‘ ‘‘Folk justice and royal justice in early seventeenth-century England: A ‘‘charivari’’ in the Midlands’, Midland History 8 (1983), 70–85. ⁹⁶ Murray, Suicide, vol. 2, 18–23. ⁹⁷ J. Kelly, Gallows speeches from eighteenth-century Ireland (Dublin, 2001), 39. ⁹⁸ Dalyell, Darker superstitions, 379. A third explanation is that the ritual was a practical joke. M. Todd, ‘Profane pastimes and the reformed community: The persistence of popular festivities in

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conventional portals, placing a corpse at a thoroughfare polluted it for normal use. In all other respects, the dragging contrasts only in legitimacy with formal penalties sanctioned by magistrates in other communities. The ofﬁcial stance on suicide may have helped to authorize parishioners’ actions by allowing them to feel that they were imposing legitimate social control through force.⁹⁹ Theirs was a form of righteous violence within a clear system of ritual control, rather than the sign of the breakdown of law and order the Privy Council maintained. Second, the ritual was carried out by only one (admittedly large) section of a parish. This suggests that while there was a store of ofﬁcial and/or popular responses to suicide on which individuals or groups could draw, their reaction to speciﬁc instances of self-murder was contingent on other factors. The behaviour in life of Galt and his wife is one. Galt’s discreet attempt to bury his wife without causing offence to elements of the community suggests that he, and those whose advice he took, recognized the potential for adverse reactions. We do not know that Galt was refused burial in the churchyard for his late wife, or if he chose (unsuccessfully) to avoid the sorts of heats and animosities he knew might follow a request. He must have known that tensions between the Cunninghames and Montgomeries were institutionalized in church patronage. In 1603 Hugh, earl of Eglinton, acquired the patronage of Pierstoun church and he had the former church lands of Dreghorn. In 1620 Dreghorn church itself came under the control of the earl of Glencairn’s eldest son, Lord Kilmaurs.¹⁰⁰ Patronage was only one instance of a bitter rivalry in this part of Ayrshire between the earls of Eglinton and Glencairn. The tensions between the families originated with the murder in 1586 of Hugh Montgomery, fourth earl of Eglinton, by a group of Cunninghames.¹⁰¹ Despite law suits by his widow up to 1596, an enquiry by the Privy Council into the continuing feud in 1606 and its notional ending in 1609, it was still recognized as a problem for law and order in 1611–12.¹⁰² Alexander, sixth earl of Eglinton, believed in direct action and successfully petitioned (some might also say bullied) his way to success in a dispute over the Lordship of Kilwinning that ran between 1612 and 1615. Following the appointment of a ﬁctive heir to the ﬁfth earl, James VI had tried to assert his authority as giver of all honours in the kingdom. While he lost the case in court, the principle was established that the crown should be consulted over early modern Scotland’, JBS 39 (2000), 148. Renwick (ed.), Extracts . . . Stirling . . . 1519–1666 , 116. R. Renwick (ed.), Extracts from the records of the royal burgh of Stirling, A.D. 1667–1752 (Glasgow, 1889), 341. ⁹⁹ G. Schwerhoff, ‘Social control of violence, violence as social control: The case of early modern Germany’, in Roodenburg and Spierenburg (eds), Social control in Europe, 220–46. ¹⁰⁰ J. Paterson, History of the county of Ayr 2 vols. (Ayr, 1847–52), vol. 1, 446. ¹⁰¹ NAS JC26/2. Pitcairn, Criminal trials, vol. 1, 354–5. ¹⁰² RPCS IX, 231, 328. Pitcairn, Criminal trials, vol. 3, 579–80.

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successions.¹⁰³ Headed by an equally hard man at the time of the desecration of Janet Barclay’s corpse, the Cunninghames of Glencairn owned the ‘manor’ or bailiary of Cunninghame in the adjacent parish of Kilmaurs.¹⁰⁴ Both noble families had residences in nearby Irvine.¹⁰⁵ Possessed of a large kindred and client base, the Cunninghames themselves were not only involved in feuds with a number of neighbouring families in the late sixteenth and early seventeenth century, but were also riven by internecine disputes in the early 1610s, marked by litigation between the sixth earl of Glencairn and his eldest son.¹⁰⁶ What happened to John Galt’s dead wife has therefore to be set against a background of feuding lords and their adherents in local communities, which polarized opinion and catalysed action to deﬁne a particular ritual and moral community. It also involved changing ideas about lordship and the continuing process of centralizing power in the hands of the crown. Glencairn was a powerful religious reformer, his people too supporting the Reformation.¹⁰⁷ Far from being merely their lord’s instrument, they may have been trying to show James VI that Cunninghame and his clients were active in punishing the sorts of deviance of which the king himself disapproved, just as Catholics could be active witch-hunters to show loyalty.¹⁰⁸ For his part, the king preferred not to take sides, trying where possible to eliminate completely all unsanctioned use of force, including feuds. Regardless of his attitude to the Montgomeries (who were also Catholics), the king and his council felt obliged to discipline Glencairn’s tenants in order to show that justice came from the crown, demonstrating good order and good lordship by deﬁning the limits of bad. The Scottish crown promoted judicial involvement, but it also acted to enforce judicial and popular restraint where there was often a narrow line between local politics and disturbing the peace.¹⁰⁹ The community of Dreghorn probably did not originate the ritual of raising a corpse, and it was certainly not the last to use it. Two centuries after the Dreghorn ‘raising’ and a century after the last recorded ofﬁcial dragging at Stirling, the inhabitants of Kincardine in Ross and Cromarty visited similar indignities on the body of Captain Robert Gordon, tacksman of Invercharron. Gordon disappeared in the closing weeks of 1813. Widely held to have committed suicide, his body ¹⁰³ G. Robertson, Topographical description of Ayrshire; more particularly of Cunninghame: Together with a genealogical account of the principal families in that bailiwick (Irvine, 1820), 211–13. ¹⁰⁴ Ibid., 434. RPCS X, 32–3, 260, 300, 321, 420, 423, 510–11, 514. Wormald, Bonds of manrent, 116. This was not a manor in the English sense. ¹⁰⁵ S. Adams, ‘James VI and the politics of south-west Scotland, 1603–1625’, in J. Goodare and M. Lynch (eds), The reign of James VI (East Linton, 2000), 231. ¹⁰⁶ Brown, Bloodfeud , 85–102. ¹⁰⁷ Wormald, ‘ ‘‘Princes and the regions’’, 72. ¹⁰⁸ L. A. Yeoman, ‘Witchcraft cases from the register of commissions of the privy council of Scotland, 1630–1642’, Miscellany of the Scottish Church History Society XIII (Edinburgh, 2004), 228–9. Propping the corpse may have mimicked what happened to the Catholic earl of Huntly in 1562. ¹⁰⁹ Levack, ‘State-building’, 115.

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was eventually discovered on the estuary shore at Spinningdale in Sutherland on 6 February 1814. His widow, Christian Munro, made preparations to have the body buried in a private chapel at Kincardine owned by her brother. However, on 9 February 1814 ‘a great mob’ prevented it, and by their persistent opposition to the burial intimidated the family into abandoning their design and instead burying Gordon in the corner of a ﬁeld near his house. The mob watched the grave for two days and two nights to prevent its removal, and also forced the widow and two of her servants to enter into an oath before a local magistrate not to have any part in moving the corpse.¹¹⁰ As middlemen between the lords who owned the land and the peasants who worked it, tacksmen in this part of Scotland were cordially disliked for their allegedly rapacious ways. Gordon’s body, memory, and family suffered from the actions of his sub-tenants.¹¹¹ Nothing happened for over a year, then in June 1815 news spread that Gordon’s body had been moved secretly to a family chapel, whereupon ‘a great number of persons collected from the heights of the parish’ and came to raise the body. They were met by a magistrate, who ordered them to disperse. However, on 21 June they forced the door of the chapel ‘and having crowded in they took the cofﬁn up out of the grave’, put it on a bier and carried it out of the churchyard, then put it on the ground, tied ropes round it, and dragged it to the shore. Once there, they dug a hole between high and low-water marks, ‘some of the people broke open the lid of the cofﬁn with spades and tumbled in the body into the hole . . . then the cofﬁn was broke with spades and thrown into the hole after the body’, after which the hole was ﬁlled in. In the words of the indictment, Gordon’s remains were ‘insulted and treated with much indignity’. The crowd ‘repossessed’ Gordon’s corpse and, by establishing ownership, denied it and the associated rights of peaceful mourning to his family. Giving it back to the sea that had previously taken it, the rioters re-located the body to liminal space, but also placed it in a neutral landscape where its resting place was uncertain. By rendering its location geographically imprecise, the crowd muddied the body’s social and cultural position in a landscape of remembrance. As in the case of English staking, these actions were meant to be punitive, without suggestion of apotropy. When they pleaded everyday excuses, the shortcomings of their claims become embarrassingly transparent. By trying ¹¹⁰ NAS JC11/55, ff. 34–38v. JC26/370. For an earlier example (1607) where Douglas of Drumlanrig had tried to force Menzies of Enoch to subscribe a bond not to rebury his son, twice disinterred from his resting place in the parish church of Durisdeer (Dumfries.), see RPCS VII, 315–17. ¹¹¹ E. Richards and M. Clough, Cromartie: Highland life, 1650–1914 (Aberdeen, 1989), 82–3, 132–3. A year later a neighbouring estate factor was prosecuted for his alleged inhumanity to tenants. The trial of Patrick Sellar: Factor on the Sutherland estates (from 1810 to 1818), for culpable homicide, real injury, and oppression, before the Circuit Court of Justiciary (Inverness, 1883).

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to render mundane the actions of a crowd, the testimony of one defendant highlighted how exotic was the desecration it visited on the body. He claimed that it was dragged because of the smell of the putrid body, a claim which ignored the fact that the corpse had been buried for more than a year, that many people thronged around it, and that it was indeed carried by hand at various stages of its last journey from a private chapel to the sea shore. In any case, dragging was more usually inﬂicted on ‘green’ or fresh corpses of suicides, showing that its meaning was symbolic not practical distancing. This was only one of several disingenuous assertions that sought defence in the commonplace. Another was that the cofﬁn was forcibly opened, allegedly to check that it contained the correct corpse, but rather than subsequently replacing the body, it was broken up so that the unprotected body could be dumped in a pit and the pieces of wood thrown on top of the dead man as a last insult.¹¹² Items that had touched the self-murderer might be buried with him or her: here bits of the cofﬁn, in other cases the cart and ropes used to convey or drag the body to its resting place.¹¹³ Not everyone in the parish agreed with the actions. While the body was being dragged over part of Alexander Stewart’s land, he called one defendant a ‘rascal’, a reminder that ritual is inherently ambiguous and often contested. Nor were alignments in the dispute popular v. elite. Note the complicity of two local ﬁgures, George and Joseph MacIntosh, who must have been related to the Munros to get access to their private chapel and who ‘leaked’ the information that Gordon had been buried on top of their mother; according to one of the defendants they also paid for whisky for the crowd after the raising. The ‘mob’ recruited local ofﬁcials to add legitimacy to its actions and two, a constable and a kirk ofﬁcer (who had been employed by the MacIntoshes to investigate the chapel), were among four men charged with ‘mobbing and violence’ before the North Circuit Justiciary Court in September 1815.¹¹⁴ Without clear evidence of the motives of the MacIntoshes it is difﬁcult to categorize values, but it is possible that these local worthies shared the attitudes of the crowd—even if they felt inhibited from taking action themselves for reasons of law or social propriety. They distanced themselves without necessarily disapproving, though they may also have engaged in cynical manipulation in pursuing a feud. The clergy are not mentioned here (or in Janet Barclay’s case), and they too may have found it theologically correct, socially prudent, and legally judicious to stand back.

¹¹² NAS JC26/370, ‘Declaration of Donald MacGregor, 8 August 1815’. For a 1670s’ example of how offensive breaking open a cofﬁn could be see Desbrisay, ‘Catholics, Quakers’, 157. ¹¹³ Ross, ‘Burying of suicides’, 286–91. Some German laws required the conveyance to be placed on top of the body and ropes to be both attached to it with both, if possible, protruding. Grimm, Deutsche Rechtsaltert¨umer, vol. 2, 326–7. ¹¹⁴ They were acquitted on legal technicalities.

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4 . 5 AVO I D I N G S A N C T I O N S : T H E S U I C I D E O F C O N V I C TS A N D N EW I D E A S O F T H E B O DY I N E I G H T E E N T H - C E NT URY S C OT L A N D The pursuit of the Gordon rioters in 1815 used legislation of 1742, for prior to the eighteenth century the only sanction against disturbing Scottish graves was moral. In 1695 an Aberdeen shoemaker cited the Kirk ofﬁcer for ‘uncovering and dismantelling’ his son’s grave ‘contrair to the rules of Christianitie’.¹¹⁵ Only from 1742 was raising a dead body formally an offence, the law on treatment of corpses being framed to deal with grave-robbing for proﬁt rather than body-moving to make a point.¹¹⁶ The law was based, not on the notion of theft, for there was no property in a buried body, but in the concept of injury. ‘Injury may not only be done to the Living, but also in a manner to the Dead, by reproaching their memory, detaining their bodies from burial, lifting their bodies out of their graves, or defacing their monuments’.¹¹⁷ There might be no property in a dead body, but duties were attached to one. By getting over the problem of a corpse having no owner, the 1742 act encompassed within the Scottish criminal law a variety of offences dealt with by separate laws in England. The implication for the treatment of Scottish suicides’ corpses was that any profanation or afﬂictive punishment could be classed as reproaching, detaining, or lifting. A different idea of ownership and treatment of the body emerged in mid-Georgian Scotland and with it a clearer deﬁnition of what could be done to corpses. A decade later another act led to further rethinking of what could be done to suicides’ bodies, but this time of those who killed themselves in prison while awaiting judicial punishment. In the late sixteenth and early seventeenth century magistrates were comfortable with completing both criminal process and punishment on the bodies of some dead people.¹¹⁸ They also used judicial latitude to donate corpses for dissection. Prior to the Murder Act of 1752 the bodies of suicides and of prisoners who either died in gaol or who were executed might be granted to Scottish anatomists, but only those unclaimed by their relatives.¹¹⁹ In 1636 Mr William Gordon, ‘mediciner’ at Aberdeen University, ¹¹⁵ A. M. Munro (ed.), Records of Old Aberdeen, MCLVII–MDCCCXCI vol. 1 (Aberdeen, 1899), 160. ¹¹⁶ A. Alison, Principles of the criminal law of Scotland (Edinburgh, 1832), 461–2. Whitty, ‘Rights of personality’, 195–6. ¹¹⁷ Bankton, Institute, 1.10.29. Alison, Criminal law, 461–5. Scots law ‘had always been a law of tort, based on general ideas of wrongfulness and unfair dealing’. Harding, ‘Medieval brieves of protection’, 149. ¹¹⁸ See 4.2 and 4.3. For further examples from 1602 and 1604 see ECA Town Treasurer’s accounts, 1596–1612, p. 403, and RPCS VII, 11. ¹¹⁹ The seal of cause of the Edinburgh barber-surgeons (1505) granted the body of a condemned man annually for dissection. ERE, 1689–1701, 161.

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received a grant from the Privy Council of ‘notable malefactors’ executed at Aberdeen or Banff ‘and failzeing of thame, the bodies of the poorer sort, dieing in hospitalls, or abortive bairnes, fundlings, or of these of no qualitie, who hes died of thare diseases, and hes few freinds or acquaintance that can take exception’.¹²⁰ In the same spirit, unclaimed inmates of institutions like Edinburgh’s House of Correction, ‘foundlings dying upon the breast’, and other dead, abandoned children were made available by the burgh council to Alexander Monteith, surgeon burgess of Edinburgh, in 1694.¹²¹ In the case of suicides, provision was for ‘the dead bodies of such as a felo de se, when it is found unquestionable self-murder and have none to own them’.¹²² These grants were justiﬁed by their public beneﬁts, encouraging medical education by reducing the expense of attending dissections for apprentice surgeons. Indirectly, Edinburgh’s policy also saved money on medical care for its poor, since one condition of Monteith’s thirteen-year grant was that he should ‘serve the whole touns poor as chirurgeon gratis’ .¹²³ More, expense to the Kirk Treasurer’s account of burying such people was spared when no relatives appeared to bear the cost. Both Privy Council and burgh council sought support for this policy by publicizing the fact that only those placed in the House of Correction ‘by a judiciall act for grosse immoralities proven againest them’ were liable for dissection after they died.¹²⁴ Yet doing wrong was not a sufﬁcient condition for suffering dissection, because relatives who wanted to step forward to claim a body for burial could do so. Instead, council and Council policy discriminated against those who did not know their kin were dead, or who could not afford to bury them—as did the 1832 Anatomy Act (2 Will. IV c. 75), which turned the unclaimed institutionalized dead into the main source of bodies for dissection. In a legal text published in that year, Archibald Alison asserted that violating the sepulchres of the dead was unnecessary for medical experimentation as ‘subjects can be procured in sufﬁcient quantities by proper police regulations, from vagrants, hospitals, and workhouses, without injuring the feelings of any human being’.¹²⁵ What linked bodies from the 1630s, 1690s, and 1830s was not their means of dying, nor necessarily their moral standing in life, but their lack of friends or ‘interest’ to protect them. Vulnerable corpses were friendless corpses ‘of no qualitie’. The history of grants to anatomists in certain cities explains the Aberdeen Journal’s report in 1757 about the enthusiastic, if unsolicited, opinion of medical ¹²⁰ Miscellany of the Spalding Club II , 73–4. RPCS 2nd series VI, 228–9. ¹²¹ H. M. Dingwall, Physicians, surgeons and apothecaries: Medicine in seventeenth-century Edinburgh (East Linton, 1995), 72–3. ¹²² Ibid., 72. In early nineteenth-century England some anatomists argued that the bodies of suicides should be routinely available for dissection. R. Richardson, Death, dissection and the destitute (Harmondsworth, 1988), 32, 81, 163. This had been suggested as early as 1754 in the Gentleman’s Magazine 24, 507. ¹²³ ERE, 1689–1701, 161. ¹²⁴ Idem. ¹²⁵ Alison, Criminal law, 461.

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men on a suicide. ‘On Wednesday, a man in the parish of Fetteresso, was drowned in a small creek of the sea . . . whether by accident or design, we cannot determine; but the young surgeons in this place have unanimously given it their opinion—Felo de se.’¹²⁶ The acquisition of such bodies was never as value-free as Alison claimed, and never as easy as the magistrates of Edinburgh or the eager Aberdeenshire surgeons tried to imply. Dissection was just as much a contested ritual as was profane burial, and for ‘mere’ suicides rather than convicts similarly determined by the level of social integration. On 16 March 1765 a 14-year-old boy called Chyne (his Christian name is unknown) hanged himself in a barn and his body was brought in to the College at Aberdeen for dissection.¹²⁷ As a servant without ‘friends’, nobody claimed his body, which was either stolen by, sold to, or claimed for anatomists. Contrast the fate of another farmer’s servant called Ruddiman (Christian name again unknown), from the parish of Botriphnie (Banffs.), who in 1774 ‘put an end to his life by cutting his throat. His corpse was taken up after its interment by a surgeon in the neighbourhood, but the populace getting notice of it, surrounded the house, took out the corpse, and sunk it in the river Dovern.’¹²⁸ Ruddiman may have been despised for the means of his death: it is impossible to tell. However, the disposal of his body can be seen as protective: a compromise between the evils of anatomy and suicide, with Ruddiman beneﬁting from local opinion in a way denied to Chyne. It has long been recognized that much eighteenth- and early nineteenth-century public opinion was ﬁrmly antidissection. People had an idea of what was appropriate punishment for a suicide (or a murderer), but feelings of opprobrium were not strong enough to justify the anatomist’s knife, for ostensibly ‘polite’ and educational anatomical demonstrations could in practice be nasty pieces of theatre.¹²⁹ The attitude of anatomists like the Aberdeenshire surgeons drew on a long tradition of granting the corpses of friendless malefactors. The issue that concentrated the minds of convicts and their families was not the lingering idea that there was property in a dead body, but the prospect of an executed criminal being sent for dissection under the 1752 Murder Act. From then until 1832 felons might be condemned not only to death, but also to dissection after their execution. The Act for ‘better preventing the horrid crime of murder’ allowed ¹²⁶ AJ 501 (16 August 1757). ¹²⁷ AJ 898 (25 March 1765). ¹²⁸ AJ 1265 (7 March 1774). ¹²⁹ A. Guerrini, ‘Anatomists and entrepreneurs in early eighteenth-century London’, Journal of the History of Medicine and Allied Sciences 59 (2004), 219–239. J. Sawday, The body emblazoned: Dissection and the human body in Renaissance culture (London, 1995), 55, speculates that the criminal and his family may have believed that the soul could not rest while the body was dispersed and unburied in consecrated ground. Northern Europeans of the late Middle Ages and beyond saw the dead body passing through a liminal phase, rather than becoming immediately soulless, treating it during decomposition ‘as active, sensitive, or semianimate, possessed of a gradually fading life’. K. Park, ‘The life of the corpse: Division and dissection in late medieval Europe’, The Journal of the History of Medicine and Allied Sciences 50 (1995), 115.

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the dissection of all murderers not condemned to be gibbeted, with the aim ‘that some further terror and peculiar mark of infamy be added to the punishment’.¹³⁰ Relatives were explicitly prevented from ‘owning’ the corpse of those so sentenced and executed. Both dissection and gibbeting shamed the corpse, but in different ways: gibbeting by the prolonged public gaze, dissection by the scrutiny of a few medical professionals followed by nameless disposal.¹³¹ Both prevented normal engagement between living and dead. However, gibbeting was unusual and executed murderers, of whom there were sixty-ﬁve between 1765 and 1831, were generally dissected, demand being brisk in the towns that had university medical schools, as well as there and elsewhere from private surgeons and physicians. The exact status of a body under the terms of the 1752 Act was not tested in Scots law until the case of Mungo Campbell, a former excise ofﬁcer. Convicted by the High Court of Justiciary on 27 February 1770 for the murder of Alexander Montgomery, earl of Eglinton, Campbell was condemned to hang on 11 April, with his body thereafter to go to Dr Alexander Munro, professor of anatomy at the University of Edinburgh, ‘to be by him publickly dissected and anatomized’.¹³² The next morning, Campbell was found hanged in his cell in Edinburgh tolbooth. The magistrates of Edinburgh, who had responsibility for the prison and the sentence, stated that they ‘intended to give his body for dissection . . . and were taking a precognition for proving self-murder against him, in order to justify their disposing of his body in that way’, a practice to which ‘they had hitherto thought themselves warranted’.¹³³ Immediately his widow entered a petition for herself and their son to have the corpse returned to them for burial. Counsel’s opinion was that the magistrates had no authority to dispose of the body as speciﬁed by the Justiciary Court because the ﬁrst part of Campbell’s sentence had not been carried out.¹³⁴ This line of argument had already been rehearsed for England in the case of Jacobite rebels who died in Carlisle gaol in 1745. The conclusion, which followed the seventeenth-century English jurist Sir Edward ¹³⁰ 25 Geo. II c. 37. P. Linebaugh, ‘The Tyburn riot against the surgeons’, in D. Hay et al (eds), Albion’s fatal tree (Harmondsworth, 1977), 76–7. T. Marshall, Murdering to dissect: Grave-robbing, Frankenstein and the anatomy literature (Manchester, 1995). From the reign of Henry VIII to the 1752 Act, the English crown might grant the bodies of executed felons to surgeons (four a year from 1540 and a further two from the reign of Charles II). Richardson, Death, 32, 36. J. Delaney, ‘Bourgeois bodies—dead criminals: England c.1750–1830’, Diogenes 142 (1988), 70–91. Sawday, The body emblazoned , 48, 54–5, 58. ¹³¹ R. McGowen, ‘ ‘‘Making examples’’ and the crisis of punishment in mid-eighteenth-century England’, in Lemmings (ed.), British and their laws, 204. G. Morgan and P. Rushton, Rogues, thieves and the rule of law: The problem of law enforcement in north-east England, 1718–1800 (London, 1998), 118–20, 151–2. ¹³² NAS JC7/36. ¹³³ Arguments and decisions . . . Collected by Mr MacLaurin, 530. ¹³⁴ ECA McLeod Bundles, DO128, item 2. The trial of Mungo Campbell, before the High Court of Justiciary in Scotland, for the murder of Alexander earl of Eglintoun. Extracted from the records of the court (London, 1770).

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Coke and which informed counsel’s opinion in Campbell’s case, was that only after execution did the body become the crown’s property.¹³⁵ While alive, Campbell had done the last thing he could to his own body, which had in one sense been his, and in another had been under the control of the magistrates of Edinburgh. Public speculation was that Campbell committed suicide to avoid the shame of the gallows, for he came from a good family. According to the Scots Magazine, ‘It was expected that he would take this method to avoid the shame of being brought to the gallows, but that he would not have done it so soon’.¹³⁶ The account went on: ‘as he was a professed Deist, his killing himself rather than submit to a public execution, which he reckoned a disgrace, was quite in character’.¹³⁷ In his mind may have been the further thought that his suicide would release his corpse to his family, rather than to a feared anatomist. Campbell had over-ridden part of the judgment of the court and exerted control of his own body after death, even if he could not be sure about his burial. If dissected, body parts were simply discarded as rubbish. For public health reasons, Edinburgh burgh council ordered in 1694 that the entrails of cadavers granted to anatomists had to be disposed of within two days of death and ‘the whole entire body shall be burned . . . within ten labouring dayes nixt therafter’.¹³⁸ Paragraph 5 of the ‘Murder Act’ expressly prescribed: ‘in no case whatsoever the Body of any Murderer shall be suffered to be buried; unless after such Body shall have been dissected and anatomized as aforesaid’. Any uncertainties in Campbell’s mind were justiﬁed by the post-mortem desecration of his body—not by anatomists, but by popular intervention. Copied in manuscript onto the front leaf of the National Library of Scotland’s copy of The trial of Mungo Campbell is an account from the Scots Magazine of May 1770.¹³⁹ It states that on 12 March his body was decently interred at Salisbury Crags, ‘but the populace having discovered it, they dug it up and some ¹³⁵ Burn, Ecclesiastical law, vol. 1, 188–9. 3 Coke Inst. 215, stated of a condemned felon: ‘his body is not forfeited to the king, but until execution remains his own’. Petersdorff, Abridgment, vol. IV, 768n. But note that the body of a notorious smuggler, who died in gaol before his sentence of death was carried out, was still ordered to be hung in chains at Chichester. GC 194 (26 June 1749). For a seventeenth-century English example of a man who killed himself rather than be ‘a spectacle for and gazing stock for the people’ see D. Underdown, Fire from heaven: The life of an English town in the seventeenth century (London, 1992), 99. ¹³⁶ Scots Magazine 32 (1770), 257. ¹³⁷ Ibid., 258. ¹³⁸ ERE, 1689–1701, 161. Body parts were subsequently buried in a designated part of the College Kirk churchyard, but communally rather than individually. However, the need to prescribe disposal suggests that anatomists might hold on to body parts or get rid of them less than carefully—a problem that persisted through the eighteenth and nineteenth centuries. Richardson, Death, 97, 248, 327–8. The Royal College of Physicians of London seems to have been more careful about burial, judging from accounts of disbursements in procuring bodies. T. R. Forbes, ‘A note on the procurement of bodies for dissection at the Royal College of Physicians of London in 1694 and 1710’, Journal of the History of Medicine and Allied Sciences 29 (1974), 332–4. The Royal Society’s charter also allowed it to claim executed corpses. The Royal Society Archives, DM/5/104. ¹³⁹ NLS Yule 2. Scots Magazine 32 (1770), 257–60.

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insults were committed upon it. His friends therefore had it carried to Leith, and having been put on board of a small boat, it was sunk in the Firth of Forth. So that Mungo Campbell had for his grave the sea, a just emblem of his restless and troubled life’.¹⁴⁰ The desecration was popular, but it may also have been para-judicial in that some thought Campbell’s body should be punished. Further detail was offered by his defence counsel, John MacLaurin, four years later: He was privately buried somewhere near Arthur’s seat. But the spot was unluckily chosen: for the canaille of Edinburgh being in use to walk there, discovered his grave the next day, dragged out the body and tossed it about till they were weary. His friends afterwards, to prevent any further outrage of that kind, sunk him somewhere in the sea. This cruelty in the mob is amazing: for however strong, and however just, their abhorrence of self-murder may be, yet surely they ought to have compassionated the hard fate of that man, whose unhappy end was occasioned by his asserting, against the great, the rights of the lower class of people. Those who condemn suicide from philosophical or religious principles, will, no doubt, in extenuation of this his last offence, consider, that he put not a period to his own existence from rashness or impatience, but to avoid the execution of an ignominious, and, as he thought, an unjust sentence of death.¹⁴¹

Mungo Campbell’s case is most unusual among convict suicides. Newspapers generally presented such deaths as proof of guilt and reported them freely. In contrast, judgements about Campbell’s death varied considerably. The Scots Magazine described him as a deist (then a term of abuse), but the Edinburgh Advertiser, which otherwise dealt only brieﬂy with his end, announced a collection for his widow and child and the Newcastle Courant said simply that the extraordinary circumstances surrounding it showed ‘that death was not what he feared’.¹⁴²

4.6 CORPORAL PUNISHMENT IN ENGLAND: T H E PE C U L I A R I T I E S O F T H E N O RT H Dragging and gibbeting of suicides was rare in Scotland, found only at a certain period and usually conﬁned to particular types of criminal self-murderer; gibbeting of executed felons was uncommon at any date. In England, ofﬁcials do not seem to have enforced any corporal punishments against suicides that resemble those of Scotland, except occasionally in the north of England, yet gibbeting of executed criminals was as unusual there as in Scotland, and much less common than in the south-east of England. By examining shaming ¹⁴⁰ C. Rogers, Scotland social and domestic: Memorials of life and manners in North Britain (London, 1869), 127, describes St Leonard’s Hill, to the west of Salisbury Crags, as the place where Edinburgh suicides were interred. ¹⁴¹ Arguments and decisions . . . Collected by Mr MacLaurin, 532. ¹⁴² EA 645 (6 March 1770). NC 4788 (17 March 1770).

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punishments against the living and the dead, it is possible to identify regionally related styles of punishment within Britain. Scottish Burgh accounts offer the best way into the minutiae of corporal (and capital) punishment and English communities, with detailed and extensive ﬁnancial records, can sometimes do the same for suicides who were punished ofﬁcially. There are a few examples of the dragging of suicides in eighteenthcentury Manchester constables’ accounts, one of ﬁfty manuscript and published sets of parish and town accounts studied. Accounts for 1743–76 mention three felo de se burials (January 1745, April 1746, May 1753) among nine cases of suicide.¹⁴³ The last records 1/2 ‘p[ai]d [for] making Greave for a Felodese’. This terse entry shows a simple burial. The ﬁrst records 9/6 spent on John Leigh, apprentice to Philip Antrobus in Newton’s Lane, broken down into ‘hire of a Sledge to draw Leigh upon making his Grave &c he being found ffelo dese & buryed in the highway at Barlow Cross 5/- several persons for Assistants 4/6’. In 1746 John Rowbothom poisoned himself. He was found ‘Self Murder’ and 6/6 was spent on ‘sundry Expences of burying him in the highway at Barlow Cross’, speciﬁed in a marginal note as ‘draggd & buryd’. Staking is not mentioned. The Victorian editor of the volume speculates in a footnote that this ‘probably’ happened, as it was then ‘customary’, but his argument is circular and it misunderstands ‘custom’. The references to dragging are arresting because of their obvious similarity with Scotland. This mode of punishment drew on the civil law, one of several legal traditions in England, but it is unusual to ﬁnd it inﬂicted on the dead. The English had long accepted that felons could not be convicted after death, and this may help to explain why ofﬁcially sanctioned corporal punishment of suicides was unusual.¹⁴⁴ In contrast, judicial dragging of living people is documented in some jurisdictions.¹⁴⁵ The Knight Marshal of London is said to have dragged some fornicators and adulterers behind a boat across the Thames between Lambeth and Westminster.¹⁴⁶ This punishment was also prescribed for prostitutes in a set of ‘spiritual laws’ laid down by the Correction Court on the Isle of Man in 1667: in 1715 a fornicatrix was ordered ‘to be dragged from a boat’.¹⁴⁷ Those convicted of sexual and moral offences could be sentenced to carting, to being ¹⁴³ J. P. Earwaker (ed.), The constables’ accounts of the manor of Manchester 3 vols. (Manchester, 1891–2), vol. 3, 14, 32, 51. ¹⁴⁴ P. A. Brand, The earliest English law reports vol. 1 (London, 1996), 1283.6. 1 Plowden 261 (1562). F. Bacon, Cases of treason (London, 1641), 13. There is an example of an English traitor tried post mortem in 1400. Neilson and Paton (eds), Acts of the lords of council, lxii. ¹⁴⁵ Jacob, The law-dictionary, ‘custom’. H. Summerson, ‘Suicide and fear of the gallows’, JLH 21 (2000), 50. J. H. Baker, The common law tradition: Lawyers, books and the law (London, 2000), 338. Archer, Elizabethan London, 204–56. F. Dabhoiwala, ‘Summary justice in early modern London’, EHR 121 (2006), 796–822. ¹⁴⁶ Holinshed’s chronicles, vol. 1, 311–12. The Knight Marshall was superintendent of the police of the Palace. Thoms, Book of the court, 316–17. ¹⁴⁷ Quoted in M. Kinnear, ‘The correction court in the diocese of Carlisle, 1704–1756’, Church History 59 (1990), 205. Ashley, ‘Spiritual courts of the Isle of Man’, 55. This punishment was also

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ridden backwards, or to public penance by both secular and ecclesiastical courts across England.¹⁴⁸ Judicial dragging of the living was also associated with capital punishment, as when Father John Plessington, a Catholic priest convicted of treason in connection with the Popish Plot, was drawn through Chester on a hurdle to his place of execution.¹⁴⁹ These examples show that punishments involving humiliation, that are often seen as folk rituals or elements of popular culture, could be ofﬁcially sanctioned by courts or ofﬁcials in England as in Scotland, even if they had no more statutory basis.¹⁵⁰ A more purely ‘popular’ example occurred in 1618 when a couple from Burton-upon-Trent in Staffordshire were hauled ‘by the feete, their heads lying upon the grownde, throughe the durty channells’ of the town’s streets for alleged sexual offences; the threat of carting also hung over them.¹⁵¹ A Worcestershire man was beaten up by a gang of men who then proceeded to ‘hale [haul] pull and dragge’ him ‘along upon the ground with his heeles upp towarde the skye and his head drawing on the ground, as though he had bene some notorious malefactor’ before putting him in the stocks with horse locks for several hours ‘to his great scandale disgrace, and reproach . . . being a man of good fame and honest conversation’.¹⁵² These examples of indignities against the living suggest a tradition of dragging and inversion, which could be drawn upon when punishing the dead. However, documented examples of such punishments post mortem are rare for England and mostly conﬁned to prominent political ‘dissidents’ rather than suicides.¹⁵³ Humbler bodies could be made to emit many different signs. John Blake of Castlemartin in Wales died, by all accounts, on 3 September 1633.¹⁵⁴ His body was subject to multiple interventions intended to create different used at nearby Kirkcudbright in mainland Scotland. C. M. Armet (ed.), Kirkcudbright town council records, 1606–1658 2 vols. consecutively paginated (Edinburgh, 1958), 230. ¹⁴⁸ R. S. Ferguson (ed.), A boke off recorde or register . . . of Kirkbiekendall . . . (Kendal, 1892), 120. C. Phythian-Adams, ‘Ritual constructions of society’, in Horrox and Ormrod (eds), Social history of England , 374–5. J. Webb (ed.), The town ﬁnances of Elizabethan Ipswich (Woodbridge, 1996). L. Gowing, ‘ ‘‘The freedom of the streets’’: Women and social space, 1560–1640’, in P. Grifﬁths and M. S. R. Jenner (eds), Londinopolis: Essays in the cultural and social history of early modern London (Manchester, 2000), 140–1. ¹⁴⁹ R. Wilding, Death in Chester (Chester, 2003), 52. ¹⁵⁰ M. Macdonald (ed.), Life’s preservative against self-killing by John Sym (London, 1988), xii, xix–xx. BL Landsdowne 620, ff. 47v–49. ¹⁵¹ Kent, ‘Folk justice’, 73, 75. Walsham, Charitable hatred, 82–3. ¹⁵² NA STAC 8/95/11. ¹⁵³ J. Gairdner, The English church in the sixteenth century from the accession of Henry VIII to the death of Mary (London, 1902), 381–2. J. Strype, The life and acts of Matthew Parker (Oxford, 1831), 170–1, 198–201. Ives, Penal methods, 264–5. NA STAC 4/7/14. L. L. Knoppers, Constructing Cromwell: Ceremony, portrait, and print, 1645–1661 (Cambridge, 2000), 182–91. ¹⁵⁴ HL Ellesmere 7956. For a thirteenth-century Sussex example of natural death by drowning dressed up as suicide by malicious neighbours see H. Summerson, ‘Maitland and the criminal law in the age of Bracton’, Proceedings of the British Academy 89 (1996), 133. For suicide represented as murder see J. Miller and K. H. Rogers, ‘The strange death of Edward Langford’, Wiltshire Archaeological & Natural History Magazine 62 (1967), 103–9.

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understandings of how he died, each with different outcomes. Blake seems ﬁrst of all to have hanged himself in his own out-house and, when initially found, his clothes were dry. The body was moved to the seashore and left near the low-water mark by a group of men assembled to pursue a vendetta against a third party. One stabbed the (at that stage unmarked and unblooded) body in the neck and belly to simulate murder. Because the corpse did not bleed, the conspirators used animal blood to add credibility to their construction. In its different locations and states, Blake’s body conveyed quite different messages. Lifeless in his house he spoke of an enclosed, domestic life and of self-murder: the day before he was found he had told his wife she would have the bed to herself. Lying on the seashore he was distanced from his house and family, his lone body suggesting suicide or accident.¹⁵⁵ Violated by a knife and doused in blood to forge his forensic signature, Blake’s corpse was used ‘to make shew and cullor that he was killed and slayne by some maliciouse adversaryes’. Blake’s body had an afterlife as different people sought to control the meanings read from it. Possessing a corpse fulﬁlled ordinary emotional needs for a family, but it could also serve the extraordinary needs of others. One way was by acting as collateral in claims to material effects. In 1598 Thomas Bett was prosecuted before an Essex church court because he ‘did go into the grave made for the body of Edward Godfrie and there did arrest the body with very unseemly, unrelevant and intemperate speech’.¹⁵⁶ That this was done did not make it acceptable at common law, and Coke stated clearly that the burial of cadavers ‘is nullius in bonis’.¹⁵⁷ Yet the Bett case shows what later writers like Burn recognized: ‘By the civil law, dead bodies ought not to be hindred from burial for debt, as vulgarly supposed . . . for death dissolveth all things’.¹⁵⁸ First published in 1763, Burn knew this still occurred, and the diary of Glamorgan schoolmaster, William Thomas, records in a matter-of-fact way how in November 1767 a cooper’s body ‘was arrested for debt by [while] going towards his grave’; there are even later examples.¹⁵⁹ ¹⁵⁵ Locating it below high-water mark may have been an attempt to escape the manorial lord’s jurisdiction and thus prevent him securing the forfeiture in the event he was found felo de se. The conspirators moved Blake’s substantial holding of livestock at the same time. ¹⁵⁶ F. G. Emmison, Elizabethan life: Morals and the church courts (Chelmsford, 1973), 174. ¹⁵⁷ 3 Coke Inst. 203. ¹⁵⁸ Burn, Ecclesiastical law, vol. 1, 187. ¹⁵⁹ R. T. W. Denning (ed.), The diary of William Thomas of Michaelston-super-Ely, near St Fagans Glamorgan, 1762–1795 (Cardiff, 1995), 197. J. Steer, Parish law (London, 1830), 49–50. Finn, Character of credit, 10. J. Innes, ‘The King’s Bench prison in the later eighteenth century: Law, authority and order in a London debtors’ prison’, in Brewer and Styles (eds), An ungovernable people, 253. L. A. Clarkson, Death, disease and famine in pre-industrial England (Dublin, 1975) 162–3. In Reg. v. Fox (1841) 2 Q.B. 246, the court found against a gaoler who seized a corpse to secure a debt. This may explain the view that while arresting a body for debt was ‘a vulgar error, without any foundation, . . . it has sometimes been iniquitously used to extort money’. T. Smith, The parish. Its obligations and powers: Its ofﬁcers and their duties (London, 1854), 414.

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There was no property in a body and any right was vested in a living person like an executor charged with disposal.¹⁶⁰ Some English lawyers thought graverobbing was solely an ecclesiastical cognizance, even if the prohibition against unauthorized removal of the remains of the dead from consecrated ground did not apply to the laity. Others felt it was against the common law as ‘highly indecent’ and ‘contra bonos mores’.¹⁶¹ In earlier times canon law did, however, sanction at least the threat of exhumation—as with the corpses of suicides, excommunicates, and intentionally fraudulent bankrupts, who could be dug up and removed from consecrated ground.¹⁶² Corpses had no protection from the church’s law prior to burial (when they were the responsibility of the executors) and if removed from consecrated ground.¹⁶³ The common law offered them more security and, at least in the late eighteenth and nineteenth century, body snatching was treated as a misdemeanour before the English criminal law. As there was no property in a body, it could not be the subject of larceny, but lawful authority was required to disinter it.¹⁶⁴ The use or misuse of bodies in England was unusual, and shaming suicides by displaying their bodies was similarly rare. In contrast, judicial exhibition of executed felons was extensively practised in the south-east, where gibbeting of executed criminals was more common than in Scotland or the north of England. Holinshed implied it was normal across Elizabethan England, and John Weever afﬁrmed: ‘He that commits that crying sinne of murther, is vsually hanged vp in chaines, so to continue vntill his bodie be consumed, at or neare the place where the fact was perpetrated’.¹⁶⁵ The regional bias of these authors has already been suggested, and later commentators conﬁrmed that gibbeting was most common in the south-east. Samuel Pepys recorded that the bodies of highwaymen were hung on Shooter’s Hill until they fell to pieces.¹⁶⁶ Henri Misson thought exposing the corpse at the site of the offence the normal practice for highway robbery and murder, whereas on the continent it was placed conspicuously at a special ¹⁶⁰ Little, Law of burial, 1. But see 3 Coke Inst. 215. ¹⁶¹ Williams, Justice of the peace, vol. 2, 372. Adlam v. Colthurst (1867). ¹⁶² R. H. Helmholz, ‘Canon law and English common law’, in The Selden Society Lectures, 1952–2001 (Buffalo, NY, 2003), 526, citing a case from Hertfordshire in 1520. Gibson, Codex juris ecclesiastici Anglicani, 541, 566. N. J. G. Pounds, A history of the English parish: The culture of religion from Augustine to Victoria (Cambridge, 2000), 428. M. Aston, ‘Death’, in Horrox (ed.), Fifteenth-century attitudes, 217. ¹⁶³ P. D. G. Skegg, ‘Human corpses, medical specimens and the law of property’, Anglo-American Law Review 4 (1975), 412–25. A. T. H. Smith, ‘Stealing the body and its parts’, The Criminal Law Review (1976), 622–27. I. Ross and C. U. Ross, ‘Body snatching in nineteenth-century Britain: From exhumation to murder’, British Journal of Law and Society 6 (1979), 108–18. S. Garratt-Frost, ‘The law and burial archaeology’, Institute of Field Archeaologists technical paper 11 (1992), appendix 4 (a treatment of Scots law by J. Logie). ¹⁶⁴ Little, Law of burial, 5. Handysides case, c.1750. Rex v. Lynn (1788), 2 T. R. 733 [E.R. 100, 394]. ¹⁶⁵ Holinshed’s chronicles, vol. 1, 311. Weever, Ancient funerall monuments, 22. ¹⁶⁶ V. A. C. Gatrell, The hanging tree: Execution and the English people, 1770–1868 (Oxford, 1994), 268. Houlbrooke, Death, 25.

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gallows (as in Scotland): ‘They fasten the Body with several Iron Hoops, which form a kind of Sack, and hang it upon the Gibbet’.¹⁶⁷ Writing a generation later, de Saussure painted a similar picture of gibbeting, again basing his observations on London and the Home Counties. In short, Vic Gatrell assures, such corpses were ‘a common spectacle on the commons and highways of eighteenth-century England’ until the last gibbeting in 1832.¹⁶⁸ These examples all come from the south-east of England and (except for Holinshed, who knew the London area best) from the late seventeenth century onwards. Before that, provincial gibbeting was unusual anywhere in England.¹⁶⁹ It had been introduced (or perhaps reintroduced) by the Tudors and, as it strictly required the sanction of the king or his council, was mainly found in and around London.¹⁷⁰ As with staking corpses, a national pattern has been extrapolated incorrectly from south-eastern examples. London’s policing needs, as John Beattie has shown, were unique, yet national legislation (like the Transportation Act of 1718 and the extension of capital punishment to certain categories of theft) sometimes emerged from attempts to fulﬁl its requirements.¹⁷¹ A justiﬁcation of the 1752 Murder Act was that homicide was ‘more frequently perpetrated than formerly and particularly in the metropolis’.¹⁷² Similarly the 1624 act making the coincidence of concealment of an illegitimate birth with a stillborn child or neo-natal death presumptive of infanticide, resulted in much higher conviction rates in London than in the provinces.¹⁷³ The apparent ‘leniency’ of London coroners’ inquests towards Victorian and Edwardian suicides is in marked contrast with earlier patterns of both staking and aggravated punishment of other crimes.¹⁷⁴ Yet other ‘soft’ areas identiﬁed by Olive Anderson for the nineteenth century displayed more consistent punishment regimes over time, for gibbeting of felons continued to be rare in the north: only three men were gibbeted in the north-east during the eighteenth century, and seven executed felons sent for dissection (only nine were dissected in the region, ¹⁶⁷ H. Misson, Memoirs and observations in his travels over England translated by Mr Ozell (London, 1719), 78n. Spierenburg, ‘The body and the state’, 56. ¹⁶⁸ Gatrell, Hanging tree, 267. N. Whyte, ‘The deviant dead in the Norfolk landscape’, Landscapes 4 (2003), 24–39. Spierenburg, ‘The body and the state’, 56, argues that gibbeting was less common in England than on the continent. ¹⁶⁹ Cockburn, ‘Punishment’, 160. ¹⁷⁰ Bellamy, Criminal trial, 154, 160. J. Bellamy, The Tudor law of treason: An introduction (London, 1979), 207. J. A. Sharpe, Crime in seventeenth-century England: A county study (Cambridge, 1983), 142, notes that published descriptions of executions were nearly all metropolitan in the seventeenth century. A. Reynolds, Later Anglo-Saxon England: Life and landscape (Stroud, 1999), 105–110. ¹⁷¹ J. M. Beattie, ‘London crime and the making of the ‘‘bloody code’’, 1689–1718’, in L. Davison (ed.), Stilling the grumbling hive: The response to social and economic problems in England, 1689–1750 (Stroud, 1992), 49–76. ¹⁷² J. Beattie, Crime and the courts in England, 1660–1800 (Oxford, 1986), 78. ¹⁷³ Walker, Crime, gender and social order, 148–58, 272–3. I owe the comparison with Old Bailey conviction rates to Dr Walker. ¹⁷⁴ Anderson, Suicide, 240.

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1752–1832); capital punishment itself was used sparingly, as it was in Wales and Cornwall.¹⁷⁵ Gibbeting also seems to have been unusual in the north-west, with just a handful of documented examples.¹⁷⁶ Most of the recovered instances of gibbeting of criminals (and staking of suicides) in the north during the eighteenth century come from the 1790s (see 3.4).¹⁷⁷ Gibbeting or hanging in irons of executed felons was similarly uncommon in Scotland. Of 51 people executed 1750–64, one was gibbeted at Appin (1752); two at Aberdeen (1752); two at Edinburgh (1752, 1755); one at Inverness (1757); and one at Ayr (1758).¹⁷⁸ Between 1765 and 1831 only four individuals were condemned to be so punished in Scotland, two at Perth and one each at Glasgow (the ﬁrst and last recorded there, in 1769) and Inverness (1773), out of 221 men and women executed across Scotland as a whole.¹⁷⁹ Gibbeting of executed corpses was unusual in the north of England, no record has been uncovered of suicides being gibbeted anywhere in England, and dragging is only documented unequivocally in mid-eighteenth-century Manchester.¹⁸⁰ Yet the north shared with Scotland extensive and prolonged use of shaming punishments on the living. Shefﬁeld town accounts for June 1570 contain a payment ‘for mendynge of a gybbet [pillory] w’th yron and hyngs’; it acquired its cuckstool in 1580, and had it mended in 1592.¹⁸¹ Nantwich in Cheshire had a punishment cage in the same year, but elsewhere in the north of England shaming punishments were ﬁrmly seventeenth and eighteenth ¹⁷⁵ Cockburn, ‘Punishment’, 160. Morgan and Rushton, Rogues, 149. In 1733 the Newcastle Courant reported (correctly) that nobody had been hanged there for 30 years. NC 434 (18 August 1733). There were only 49 executions in Northumberland, Newcastle and Berwick-upon-Tweed during the eighteenth century. B. Redfern, The shadow of the gallows: Crime and punishment on Tyneside in the eighteenth century (Newcastle, 2003), 21, 115; at 101 Redfern says 54 people were executed. Between 1710 and 1819 there were 27 executions in Co. Durham. J. Smith, ‘The punishment of capital felonies in county Durham, 1707–1819’, Durham County Local History Society Bulletin 20 (1977), 19–25. P. King, Crime and law in England, 1750–1840: Remaking justice from the margins (Cambridge, 2006), 66. ¹⁷⁶ H. S. Cowper (ed.), The oldest register book of the parish of Hawkshead in Lancashire, 1568–1704 (London, 1897), 298. St James’s Chronicle (12 August 1768). CP 409 (8 August 1782). ¹⁷⁷ Lancashire RO, QSP/2327/8. The irons survive in Warrington museum. CP 1017 (8 April 1794). A. Sparke, The registers of the parish of Deane, 1751–1812 (Bolton, 1940), 1083. Andrews, Bygone punishments, 64, 67. CP 931 (14 August 1792). S. Oliver [pseud.], Rambles in Northumberland, and on the Scottish Border (London, 1835), 113. TWA 1422/5. ¹⁷⁸ A. F. Young, The encyclopaedia of Scottish executions 1750 to 1963 (Orpington, 1998), 41–8. ¹⁷⁹ List of all the criminals who have been executed in Glasgow, for the last eighty-four years; with their names, crimes and place and time of their suffering: likewise, a list of the names and crimes of persons who have been executed in Edinburgh, Stirling, Perth, Dumfries, Ayr, Jedburgh, Greenock, Paisley, Aberdeen, Inverness, &c. for 179 years . . . (Glasgow, 1838). S. Livingstone, Confess and be hanged: Scottish crime and punishment through the ages (Edinburgh, 2000), 67. ¹⁸⁰ In 1811 the corpse of the Ratcliffe Highway murderer, John Williams, was arranged on a cart (decked out in prison clothes, prison irons, and the instruments of his murders) and paraded through the streets of London after he killed himself; the body was then staked and buried. Gatrell, Hanging tree, 84. MacDonald and Murphy, Sleepless souls, 138–9. ¹⁸¹ J. D. Leader (ed.), Extracts from the earliest book of accounts belonging to the town trustees of Shefﬁeld . . . 1566–1707 (Shefﬁeld, 1879), 22, 54, 66.

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century.¹⁸² Manchester erected its pillory in 1625 and its constables’ accounts show it being repaired.¹⁸³ David Underdown suggests that one piece of shaming hardware, the branks or scold’s bridle (a metal frame attached to the head which gagged the wearer), was used mostly in northern towns in the mid-seventeenth century and was extra-judicial.¹⁸⁴ There is an example from Salford dated 1655.¹⁸⁵ However, in one of the towns Underdown cites in support of his point, Clitheroe (Lancs.) the Court Leet continued to use shaming punishments judicially into the late seventeenth century (stocks, cuckstool, pillory and branks).¹⁸⁶ The last reference to the branks in Clitheroe comes from 1710 when Alice Wilkinson ‘was bridled through the town’.¹⁸⁷ Manchester churchwardens’ accounts still record public penance in the 1680s, and other shaming punishments remained judicially current into the eighteenth century, summarily imposed by minor courts or ofﬁcials in certain jurisdictions; the diocese of Chester has many bundles of declarations of penance from the sixteenth to the eighteenth century.¹⁸⁸ The last recorded use of the branks in Northumberland was at Morpeth in 1741 when a slanderer was made to wear it for two hours standing at the market cross.¹⁸⁹ The bridle was still in use at Ashton-under-Lyne (Lancs.) in 1760 and in Lancashire prisons at the end of the eighteenth century ‘without arousing any comment’.¹⁹⁰ Manchester seems to have acquired its branks or scold’s bridle in 1638–9 and the constables’ accounts for 1773 mention a payment ‘for Ribbons werewith to dress the Bridle for scolding Women’; the branks may have been used in other parts of Lancashire into the late eighteenth century.¹⁹¹ Other shaming punishments were in use in the north of England during the eighteenth century and may have been ¹⁸² W. F. Irvine, ‘The bishop of Chester’s visitation book, 1592’, Journal of the Chester Archaeological and Historic Society new series 5 (1895), 419. ¹⁸³ Earwaker, Constables’ accounts, vol.1, 150–1; vol. 2, 42–3, 59; vol. 3, 112. ¹⁸⁴ D. Underdown, ‘The taming of the scold: The enforcement of patriarchal authority in early modern England’, in A. Fletcher and J. Stevenson (eds), Order and disorder in early modern England (Cambridge, 1985), 123. L. E. Boose, ‘Scolding brides and bridling scolds: Taming the woman’s unruly member’, Shakespeare Quarterly 42 (1991), 179–213. Balfour, Folk-lore concerning Northumberland, 122, citing a mid-seventeenth-century Newcastle example, which may be the same one as originated with R. Gardiner, Englands grievance discovered, in relation to the coal trade . . . (London, 1655), 110–11. Andrews, Bygone punishments, 276–98. ¹⁸⁵ J. D. de T. Mandley (ed.), The portmote or court leet records for the borough or town and royal manor of Salford from the year 1597 to the year 1669 inclusive 2 vols (Manchester, 1902), vol. 2, 145–6. Ormerod, Chester, vol. 3, 385. ¹⁸⁶ W. S. Weeks, Clitheroe in the seventeenth century (Clitheroe, 1928), 87–91. ¹⁸⁷ Ibid., 90. ¹⁸⁸ E. Broxap (ed.), ‘Extracts from the Manchester churchwardens’ accounts, 1664–1710’, Chetham Society Miscellanies vol. 4 (Manchester, 1921), 15, 16, 26. Dabhoiwala, ‘Summary justice’, 799. Irvine, ‘Bishop of Chester’s visitation book, 1592’, 392–4. ¹⁸⁹ Redfern, Shadow of the gallows, 80–1. Morgan and Rushton, Rogues, 21, 127, 223. ¹⁹⁰ Bowman, Ashton-under-Lyne, 616. M. DeLacy, Prison reform in Lancashire, 1700–1850: A study in local administration (Manchester, 1986), 210. ¹⁹¹ Earwaker, Constables’ accounts, vol. 1, 150–1; vol. 3, 256. J. Harland and T. T. Wilkinson, Lancashire legends, traditions, pageants, sports &c. (London, 1873), 166–7.

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introduced or re-introduced quite late, only to be abandoned soon afterwards. These included a ducking stool provided for Hull in 1731 and clearly shown on a town plan of 1737.¹⁹² This interest in shaming punishments was distinctive to the north of England in Stuart and Georgian times. At earlier periods these sanctions were used only intermittently and infrequently in the south. Dave Postles reports a decline in public penance imposed by the church courts in the late ﬁfteenth and early sixteenth century, but a revival of shaming punishments in the 1560s and 1570s followed by abandonment after c.1600.¹⁹³ Postles ﬁnds an explanation in the rise and fall of Puritan militancy, saying that, elsewhere, public humiliation was reserved for more serious offences, but his analysis is based only on church courts in parts of the Midlands and the south of England. Jim Sharpe has found that the use of any shaming punishment in seventeenth-century Essex was rare, and in London carting of sexual offenders seems to have died out in the early seventeenth century.¹⁹⁴ Shame played a lesser role in routine judicial process in the south-east than in the north: Harrison, who wanted something sharper, claimed few regarded public penance as much of a punishment.¹⁹⁵ An example of creativity in the sixteenth century, the subsequent history of whipping is an example.¹⁹⁶ Beattie shows that public whipping saw resurgence across England in the late seventeenth and early eighteenth century, notably for theft, but that the Old Bailey preferred transportation after 1718.¹⁹⁷ Robert Shoemaker proposes that, for petty offences, ‘Middlesex and Westminster justices showed little interest in traditional shaming punishments’ such as the pillory or public whipping: between c.1660 and 1725 only 4 per cent of defendants whose punishments are recorded were not ﬁned.¹⁹⁸ Both sexual and property offenders subject to summary justice were more commonly incarcerated in seventeenth- and eighteenth-century London.¹⁹⁹ Whipping was more widely used by provincial courts: in the north-east it was the sentence handed down by the assizes in 17–18 per cent of larceny cases throughout the eighteenth century, and it was especially popular with Co. Durham JPs.²⁰⁰ At Newcastle, public whipping usually meant tying a person to a cart and passing along a set route through the town, with designated places ¹⁹² E. Gutch, Examples of printed folk-lore concerning the East Riding of Yorkshire (London, 1912), 160. Morgan and Rushton, Rogues, 126–31. E. Trotter, Seventeenth century life in the country parish (Cambridge, 1919), 103, reports that ducking was seldom ordered by seventeenth-century North Riding Quarter Sessions. ¹⁹³ D. Postles, ‘Penance and the market place: A reforming dialogue with the medieval church (c.1250–c.1600)’, Journal of Ecclesiastical History 54 (2003), 441–468. ¹⁹⁴ Sharpe, Crime, 149. Sharpe, Judicial punishment, 21–2, 47. ¹⁹⁵ Holinshed, Chronicles, 184–5. ¹⁹⁶ Ingram, ‘Shame and pain’, 52–8. ¹⁹⁷ T. R. Forbes, ‘A study of Old Bailey sentences between 1729 and 1800’, Guildhall Studies in London History 5 (1981), 33. Beattie, Crime and the courts, 461–4, 485–7. Beattie, Policing and punishment, 304–8, 444–7. ¹⁹⁸ Briggs et al, Crime, 77–80. Cockburn, ‘Punishment’, 158. Shoemaker, Prosecution, 161–2. ¹⁹⁹ Dabhoiwala, ‘Summary justice’, 799–803. ²⁰⁰ Morgan and Rushton, Rogues, 72.

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for the strokes. The town’s seventeenth-century accounts are full of hirings of carts to parade miscreants; the practice is documented throughout the eighteenth century, ﬂourished again at the century’s end, and survived into the nineteenth century as a testament to the enduring power of reputation in the law and society of the north.²⁰¹ The apparently later reception and greater use of shaming punishments in the north of England than in the south invites speculation about their origins. Ingram suggests that the branks may have been a Scottish importation, pointing to the clustering of mentions in the mid-seventeenth century.²⁰² This is possible, as it is documented in Scotland half a century earlier than in England, where the ﬁrst mention is at Macclesﬁeld (Cheshire) in 1623.²⁰³ However, examples from Manchester, Newcastle, and Cheshire prior to direct Scottish involvement in English affairs at the time of the wars of the three kingdoms suggest that any transfer came more organically.²⁰⁴ Nor were Scots or Scots practices so popular in the north of England as to make emulation likely. Dragging suicides may have been an even later addition in the north, for the Manchester constables’ accounts covering 1612–47 contain no references to it, a lacuna that cannot simply be attributed to less detailed entries because they are as full as eighteenth-century ones. Another possible explanation is that the legal traditions of the northern boroughs favoured continental developments in punishment that resembled those of Scotland (and, in some senses, London). Until the early nineteenth century all local justices had considerable autonomy, but some of the north’s smaller boroughs had courts with considerable independence that made them more like the highly privileged Scottish royal burghs than most English towns. In the northwest these included places like Chester and Macclesﬁeld.²⁰⁵ Northumberland towns such as Morpeth and Hexham had rights of summary justice, while Newcastle, Durham, and Berwick had Quarter Sessions presided over by mayor, aldermen, and recorder, giving magistrates unusual independence in managing ²⁰¹ E. M. Halcrow, ‘Borough records: Chamberlain’s or treasurer’s accounts’, The Amateur Historian 2 (1954–6), 296. Redfern, Shadow of the gallows, 83–8. NRO QSI/394. Use of the pillory in England for anything except perjury was banned in 1816. ²⁰² M. Ingram, ‘ ‘‘Scolding women cucked or washed’’: A crisis in gender relations in early modern England?’, in J. Kermode and G. Walker (eds), Women, crime and the courts in early modern England (London, 1994), 58. ²⁰³ J. G. Harrison, ‘Women and the branks in Stirling, c.1600 to c.1730’, Scottish Social and Economic History 18 (1998), 114–31. M. F. Graham, ‘Social discipline in Scotland, 1560–1610’, in R. A. Mentzer (ed.), Sin and the Calvinists: Moral control and the consistory in the reformed tradition (Kirksville, Mo., 1994), 153–4. Murray, Early burgh organization, vol. 1, 245–51. J. W. Spargo, Juridical folklore in England, illustrated by the cucking-stool (Durham, NC, 1944), 76–84. ²⁰⁴ G. B. Richardson (ed.), Extracts from the municipal accounts of Newcastle-upon-Tyne (Newcastle, 1848), 41. T. N. Brushﬁeld, ‘On obsolete punishments, with particular reference to those of Cheshire. Part I: The brank or scold’s bridle; Part II: The cucking stool and allied punishments’, Journal of the Architectural, Archaeological, and Historic Society . . . of Chester 2 (1864), 35. ²⁰⁵ Clayton, Administration of Cheshire, 59–60.

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the judicial affairs of their boroughs.²⁰⁶ Here, the inﬂuence can be construed as mutual (from Norman law, when towns were given privileges in the eleventh and twelfth centuries), and the development effectively indigenous, though the periods when they were manifested varied. Mention of civil- or Roman-law punishments in English legal texts is suggestive of a partial reception of such rules or doctrines. Looking for examples of punishments would not have required a careful reading of continental codes, for local authorities seem to have been well aware of how foreigners punished from pamphlets, news-sheets, and word of mouth. Any trained lawyer would have had at least a latent knowledge of learned law, some of which made its way into ecclesiastical usages at an early date. A late eleventh-century English eschatological homily refers to dragging as the appropriate way to convey unrepentant moral offenders to their grave: ‘Let no mass be sung in their presence, let them not be given the eucharist or consecrated bread, nor let them be buried in a hallowed minster, nor even to be carried to the heathen pit, but dragged without a cofﬁn’.²⁰⁷ More explicitly any reader of Fulbecke or Dalton would have noticed the references (see 3.2). Consciously or subliminally, these inﬂuences informed magistrates. One regional usage of Roman law in the early modern period is permission to torture given to the Council in the Marches of Wales in 1602.²⁰⁸ This constituted a local extension of the closely controlled authority of the Privy Council to issue torture warrants in matters of state, but the grant is framed, in a form probably derived from civil law texts, to suggest permission routinely to torture. Evidence that the Council in Wales ever tortured is slim—27 Hen. VIII c. 4 took away Admiralty criminal jurisdiction from the civilians, ending lawful judicial torture—and its use by the Privy Council was certainly rare in early Stuart England.²⁰⁹ However, procedures were eclectic, so it becomes difﬁcult to argue for any kind of systematic use of Roman or civil law other than in certain maxims, but easier to see the plausibility of a subtle reception by means of judicial interpretation, which is visible in passing references within legal literature, and in the use of certain well-known procedures and punishments in practice.²¹⁰ 4 . 7 C O N C LU S I O N : L E G A L C H A N G E , L AW E N F O RC E M E N T, A N D T H E L I M I TAT I O N O F L AT I T U D E IN PUNISHMENT The ﬁndings of this section allow three points to be added to Spierenburg’s helpful model (4.1). First, changing punishments are not detached social and ²⁰⁶ ²⁰⁷ ²⁰⁸ ²⁰⁹ ²¹⁰

Morgan and Rushton, Rogues, 21. Quoted in Thompson, Dying and death, 171. Williams, Council in the marches of Wales, 49, 56–7. Baker, Spelman’s reports, vol. 2, 300. P. Vinogradoff, Roman law in medieval Europe (Oxford, 1929), 97–118.

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cultural manifestations, but need to be understood as part of developments in the theory and practice of the law. From the late seventeenth century punishments became increasingly ﬁxed. Courts still had latitude, but within bounds which became more closely delineated by reference to written law, and which came to exclude the infra-, para-, or quasi-judicial. Local magistrates who allowed, or even ordered, dragging and gibbeting in late sixteenth- and early seventeenth-century Scotland later ceased doing so, and came to re-label such activities illegitimate popular rites of desecration. The example of John Galt’s wife is a reminder that, even at times when formal and informal coincided, popular manifestations were not always viewed as legitimate. Desecrating suicides could reinforce moral community, but it could also divide social communities, and this disruptive element helped justify proscription of popular profanation. Second, focusing on changes in punishment in the late eighteenth and early nineteenth century assumes a one-off shift or ‘revolution in punishment’.²¹¹ Instead, the early modern era deserves closer attention, and we can reframe Spierenburg’s model by suggesting that what also has to be explained is the re-adjustment to levels of intervention that had apparently prevailed before the mid- to late sixteenth century.²¹² Instances where dragging and/or gibbeting is recorded seem exceptional for the Scottish diarists, who mentioned them as a sign of difﬁcult times, and they were unusual in the town treasurers’ accounts analysed. Most of the surviving Scottish judicial examples are from Edinburgh during the second half of the reign of James VI. The most likely scenario is that shaming the dead was not a survival of an earlier generalized pattern, but a sixteenth-century innovation found in only some parts of Britain and inﬂicted on the bodies of those who had done something other than simply kill themselves. Third, punishments in north Britain may be less a sign that civility or enlightenment arrived there later than in the south, and more an indicator of a distinctive penal regime with its own inner legal and social dynamic. The gibbeting of criminals was less common in Scotland or the north of England than in southern England, but judicial and other sources show more active corporal punishment of Scottish suicides. Dragging of suicides was rare in England and seemingly conﬁned to the north in the eighteenth century. Shaming punishments against the living ﬂourished across north Britain in the seventeenth and eighteenth centuries, and in Wales and the south-west too since most of Edward Thompson’s examples of ‘rough music’ come from here. What looks like a single prolonged process of ‘modernization’ may in fact be changes to regionalized types or styles of punishment that had different chronologies. If changing punishments for suicide require adjustments in Spierenburg’s helpful scheme, they may cause us to question outright Lenman and Parker’s ²¹¹ Ignatieff, ‘Social histories of punishment’, 187–90. Innes and Styles, ‘Crime wave’, 229–40. ²¹² Muldrew, Economy of obligation, 239, suggests the same pattern for civil litigation.

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model. In particular ‘the people’ or ‘the community’ was an active participant in punishment during the early modern period; ‘the state’ could punish or it could prevent sanctions being imposed (or punish those who inﬂicted them extrajudicially); restitutive and punitive justice were intermingled; and punishments such as dragging and gibbeting had been possible without explicit legal sanction (though conducted by legally accredited authorities following a satisfactory form) in the late sixteenth and early seventeenth century. The actions of Galt’s neighbours, the anonymous interferers with Campbell’s corpse, and the ‘Gordon rioters’ recall Thompson’s comment about another type of shaming punishment: ‘Rough music belongs to a mode of life in which some part of the law still belongs to the community and is theirs to enforce’.²¹³ Scottish people still asked for (even if they were refused) judicial sanction for popular punishments during the eighteenth century; the provincial English and Welsh still shamed by rough music even after courts explicitly criminalized such activities.²¹⁴ Foucault envisages communal enforcement occupying a ‘margin of tolerated illegality’ or ‘a space of tolerance’, but that attribution over-weights the state and its ofﬁcials, when in reality decisions about afﬂictive punishment often came from local ofﬁcials.²¹⁵ Foucault assumed that the only limits to power were the attitudes of the rulers and the inefﬁciencies in their bureaucracies as they furthered the ends of the state. He tended to ignore social, cultural, and institutional mediations that link disciplinary discourses to individual experience.²¹⁶ Punishing the dead was a way of demonstrating the power and legitimacy of the crown and its agents in the sixteenth and seventeenth centuries, not as all-powerful patriarchs, but as participants in a paternalistic ethos, for powers of moral and punitive enforcement are widely distributed.²¹⁷ The ‘state’ and its ofﬁcials may have been the most powerful wielder of the sanctions that deﬁne what was acceptable or unacceptable, but it was not the only one. In reality, the exercise of power was located in a set of interactions between rulers and ruled, lord and tenant, master and man, where the effectiveness of policy and its limits were decided in domains where consensus and contest alike were played out. All relations of power have to be understood not just as acts of domination (by what, for Foucault, was an illegitimate state), but as aspects ²¹³ E. P. Thompson, Customs in common (London, 1991), 530. ²¹⁴ ‘Petition for a toleration to the stang, with the proceedings of the regality court of Huntly thereon, 1734’, Miscellany of the Maitland Club . . . (Edinburgh, 1840), vol. 1, pt. 2, 485–93. D. J. V. Jones, Crime in nineteenth-century Wales (Cardiff, 1992), 11–12. ²¹⁵ Foucault, Discipline and punish, 82. ²¹⁶ R. A. Nye, ‘The evolution of the concept of medicalization in the late twentieth century’, Journal of the History of the Behavioural Sciences 39 (2003), 120. P. Spierenburg, ‘Punishment, power and history: Foucault and Elias’, Social Science History 28 (2004), 625–6, claims that Foucault distanced himself from this accusation by allowing that the state used existing structures of power from the family upwards. ²¹⁷ Ignatieff, ‘Social histories of punishment’, 205.

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of social relations, especially when focusing on local courts.²¹⁸ Understanding early modern suicide means being sensitive to the shifting balance between the consensual and the coercive, and being aware that coercion is not exclusively a state activity. Change was not from reluctance to enforcement, but from creativity and participation in punishment to uniformity under written law, involving both the monopolization of some sanctions and the proscription of others. John Bossy characterizes this as a shift from medieval images of feud and charity, enmity and amity, to early modern and modern ones of ‘law (or the state)’.²¹⁹ As was shown in 2.3, notions of charity and amity were part of law (especially equity) from an early date, and did not disappear in the seventeenth century. At the same time, the law was a way of ensuring trust from the Middle Ages onwards; legal ways of thinking permeated social relationships and activities; and law (and going to law) was a very obvious part of the fabric of everyday life. Bossy is perhaps inﬂuenced by Lenman and Parker’s scheme, which is itself based on Vinogradoff’s over-simpliﬁed distinction between ‘the domain of professional law (Juristenrecht)’ and the non-litigious social ‘arrangements and practices . . . of popular law (Volksrecht)’.²²⁰ Indeed, Lenman and Parker’s framework could be reversed to propose a dialectic that at some periods juxtaposed community-promoted enforcement with state-enforced restraint. By the mid-eighteenth century, lawyers had a more positivist view of the law, expecting that what was legally acceptable would be coterminous with what was legally deﬁned: that is, sanctioned by lex scripta and conducted with due form rather than summarily. As with torture, judicial process had been redeﬁned to maintain more control over the use of force in punishment. The tendency towards creativity and discretion had been reversed by establishing channels for the former, and clear limits to the latter. The 1742 act, that made interfering with a dead body a criminal offence in Scotland, was an important marker in the changing legal landscape, delineating the illegitimacy of desecrating any corpse—even if it did not wholly prevent such practices against either the righteous or the unrighteous dead. Mercy remained a part of justice, but the opportunity ofﬁcially to augment or aggravate a punishment was reduced, unless (like dissection or hanging in irons) it was sanctioned by statute or otherwise dependent on a clear rule. Mungo Campbell’s case of 1770 was a landmark in the development of punishment, demonstrating how profoundly the legal climate had changed. However, both public debate and popular rituals in Campbell’s case provide ²¹⁸ Ibid., 203. ²¹⁹ Bossy, ‘Postscript’, 287. ²²⁰ P. Vinogradoff, ‘The problem of customary law’, in The collected papers of Paul Vinogradoff 2 vols. (Oxford, 1928), vol. 2, 420. Like von Gierke’s ‘free fellowship of the old law’, Vinogradoff privileged ‘organic’ native law over the imposition of Roman law. Von Gierke, Community, 10.

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scant evidence for a sensitization of society.²²¹ Instead there was a change in policing and the law, as shown by counsel for his family: As to suicide. This is no doubt a heinous offence and the law of this country has accordingly provided a punishment for it, viz. escheat of moveables upon the fact being established in a declarator before the proper court. But I know of no law nor of any practice in Scotland which authorise any punishment or severity to be inﬂicted upon the dead body of a self murderer. Nor do I see upon what authority the magistrates of Edinburgh could take cognisance of this fact, which is a crime in law, and severely punishable as above mentioned, or give a judgement thereon in the summary way that is proposed [by precognition].²²²

There was no law, but there certainly had been practices, albeit fallen into disuse, just as there had been opportunities for creativity to preserve order. Lawyers had come to discountenance the summary and the creative because ideas of law had changed. Among other things, Georgian policing required due process, allowing Campbell’s family to beneﬁt, as earlier ones had not. As ‘the space of tolerance’ narrowed, the sufferers became the perpetrators of popular justice as much as the corpses which they used to make their points about right and wrong. As published in 1773, Erskine could state categorically that ‘the offender, by the commission of this crime [suicide], withdraws himself from trial, and is no longer the object of punishment in his own person’.²²³ The search for certainty within the letter of the law also informed the 1823 legislation on the burial of suicides in England. Nineteenth- and twentiethcentury historians, who assumed that ofﬁcial hostility to criminal reform was absolute and that complete change was the only rational course, hailed advocates like Sir James MacKintosh as courageous, far-sighted, and humane. Speaking to the House of Commons in May 1823, Sir James demanded (among other changes ‘respecting the rigour of our criminal laws’) repeal of the penal laws against suicide. ‘Verdicts of insanity’, he argued, ‘were almost always found in the cases of persons in the higher stations of life: where self-slayers were humble and defenceless felo-de-se was usually returned.’²²⁴ None of MacKintosh’s nine motions passed, including the last one: ‘That it is ﬁt to take away the forfeiture of goods and chattels in the case of Suicide, and to put an end to those indignities which are practised on the remains of the dead, in the cases of Suicide and High Treason’.²²⁵ With others, he had been pushing for an end to profane burial for three years, armed with what in retrospect were strong ²²¹ T. R. Gurr, ‘Historical trends in violent crime: A critical review of the evidence’, Crime and Justice 3 (1981), 295–352. L. Stone, ‘Interpersonal violence in English society, 1300–1980’, P&P 101 (1983), 22–33. Beattie, ‘Violence and society’, 52–3. ²²² ECA McLeod Bundles, DO128, item 2, opinion of Robert Blair. Arguments and decisions . . . Collected by Mr MacLaurin, 531–2. ²²³ Erskine, Institute, IV.IV.46. Erskine died in 1768 and his work was posthumously edited by his son for publication. ²²⁴ Parliamentary debates new series IX, col. 416. ²²⁵ Ibid., col. 420.

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arguments that the existing punishment for suicide was ‘an act of malignant and brutal folly. It was useless as regarded the dead, and only tortured the living’.²²⁶ MacKintosh got nowhere on forfeiture. His line on profanation eventually won the day because reformers were able to create a climate in which the law was seen to require a better public image. They argued as much that it needed to be impartial and clear as they did that it should be ‘humane’, suggesting that certainty in the workings of punishment was better than the discretion and mercy that had served English justice in earlier centuries.²²⁷ And they operated within a new climate of opinion that, since the mid-eighteenth century, had argued that the people should not be allowed to participate in exemplary punishment because they were not morally worthy. At the same time, Utilitarians found within religion a rationale for alternative views of punishment and rehabilitation. They did not distinguish between humane and pragmatic, but assumed law and social policy would reﬂect true religion.²²⁸ To see this as a rise of ‘humanity’, or as part of the ‘civilizing process’ that underlies Spierenburg’s arguments is, as Randy McGowen argues, to risk simpliﬁcation: ‘The discomfort that arose for the polite . . . had both a religious and a class dimension that was not reducible to psychological states’.²²⁹ How far psychological states had changed is questionable. Parliamentary debates show that signiﬁcant opinion remained hostile to granting suicides any leeway. Treatment of bodies became in some respects more ‘humane’, but this has to be set against what many contemporaries regarded as the inhumane eighteenth-century practice of dissecting executed criminals. The latter can only be seen as ‘humane’ in Foucault’s sense of a more reﬁned and inevitable punishment (‘a more ﬁnely tuned justice’),²³⁰ where previously punishment’s impact relied on its ‘visible intensity’; or that meant by Beccaria, who argued in 1764 that crimes were more effectually prevented by the certainty rather than the severity of punishment.²³¹ The case of the Scottish Gordon rioters of 1814 shows that, while statutes and legal decisions may have limited what could be done ofﬁcially to corpses, they did not prevent extra-judicial acts. Nor did legal change in 1823 preclude continued ‘popular’ beliefs about bodies, and enduring traditions of avoidance and desecration in England. In 1902 at Northenden (now part of greater Manchester), the body of a man who had murdered a solicitor and then killed himself was locked in a stable overnight following an inquest. Some locals broke in and took the body. It was found under a hedge, ‘entwined with ²²⁶ Ibid., col. 414. ²²⁷ R. McGowen, ‘The image of justice and reform of the criminal law in early-nineteenth-century England’, Buffalo Law Review 32 (1983), 95–6. ²²⁸ R. R. Follett, Evangelicalism, penal theory and the politics of criminal law reform in England, 1808–30 (London, 2001), 184. ²²⁹ McGowen, ‘Crisis of punishment’, 202. ²³⁰ Foucault, Discipline and punish, 78. ²³¹ Ibid., 9.

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ropes’ and showing evidence of having been dragged and kicked about. When eventually buried in a cemetery, ‘the attitude of a section of the spectators was so menacing that no outsiders were permitted to be present at the ceremony’.²³² At this date such practices sought no legitimation within the law and received only its censure. ²³² Daily Chronicle (26 February 1902), 4d.

5 Conclusion to Part 1 5.1 WHY PUNISH THE DEAD? The early seventeenth-century almoner Lancelot Andrewes remarked that the letter of the law allowed crown or ‘society’ to be ‘in some part revenged [on suicides], by depriving them of power to dispose of their Estate’.¹ Forfeiture was conceived as a penalty, but it did not work wholly that way, and the historian should beware of ‘conﬂating the existence of a legal rule, right or duty with the separate questions of its operation, mediation and enforcement in practice’.² In Andrewes’ England there are few senses in which a ﬁnding of felo de se was necessarily prejudicial to the material well-being of the deceased’s family or community, and it could be advantageous. It had been common since the Middle Ages for the English crown to waive the right to chattels and it intervened mainly to adjust distributions.³ When C´esar de Saussure noted in 1726 that it was ‘very rarely that the King makes use of this privilege [forfeiture for felony], and almost always gives up these possessions in favour of the families of the criminals’, he was commenting not on a new development, but on an enduring tradition of lordly discretion.⁴ Nor were most recorded escheats of suicides in Scotland ﬁnancially punitive, but were instead attempts to repair the fabric of society by delegating responsibility for organizing the estate of the self-murderer. Forfeited sums were usually a small proportion of that part of the culpable suicide’s estate to which family had no legal claim, and in this sense liability was not transmitted to survivors. The gap between letter and action helps explain why Scots jurist Hume thought little of escheat as a sanction—‘The lowest order of punishments consist of those, which touch the offender in his purse only, or patrimonial concerns.’⁵—and why English legal historians Pollock and Maitland later dismissed patrimonial penalties as not ‘true punishments’.⁶ ¹ Andrewes, The pattern of catechistical doctrine, 405. ² D. Sugarman and G. R. Rubin, ‘Towards a new history of law and material society in England, 1750–1914’, in G. R. Rubin and D. Sugarman (eds), Law, economy and society, 1750–1914: Essays in the history of English law (Abingdon, 1984), 33. ³ Anderson, Suicide, 220. ‘Brodrick Report’, 111. ⁴ Saussure, A foreign view of England , 120. Anderson, Suicide, 220. ⁵ Hume, Commentaries, vol. 1, 492. ⁶ Pollock and Maitland, History of English law, vol. 1, 74.

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Fabian penal reformers of the early twentieth century viewed punishment in the round, seeing the connection in past barbarity that they dismissed in emotive accounts of continuing inhumanity. From a viewpoint of ethnocentric evolutionism, they (like early anthropologists) assumed that any apparently irrational belief or reprehensible practice was a survival from an earlier social system and mental world.⁷ Bentham called them ‘relic[s] of the simplicity of the olden time’.⁸ They may have been in his day, but evidence of punishing the dead suggests that a rigorous corporal punishment regime was not a residual anachronism, but arose, ﬂourished, and declined thanks to latitude within forms of law and government. Foucault is correct that the early modern punishment regime was not ‘a lingering hang-over from an earlier age. Its ruthlessness, its spectacle, its physical violence, its unbalanced play of forces, its meticulous ceremonial, its entire apparatus were inscribed in the political functioning of the penal system’.⁹ Punishments comprised discrete measures designed to respond to different needs. Van D¨ulmen notes of early modern Germany that the core element of many was visibly ‘to diminish the delinquent’s personal honour’, and punishments that shamed bit deeper into early modern European mentalities than patrimonial ones.¹⁰ Tudor poet Sir Thomas Wyatt wrote that shame was the ‘greatest punishment on earth, yea, greater than death’, but honour and shame transcend death.¹¹ In form, shaming punishments were dramatic or theatrical, processional, ﬂexible yet measured, communal, public, and personal.¹² There is, however, a crucial difference between punishments inﬂicted on the living and the dead. Public humiliation of moral offenders like fornicators or blasphemers in early modern Scotland was always accompanied by attempts by the Kirk to bring the offender back into the Christian community. Kirk Sessions insisted that miscreants (including attempted suicides, as will shortly become clear) publicly acknowledge and repent their fault. When shaming punishments were used in England, the same reformatory intent is evidenced.¹³ In contrast, corporal punishments and non-standard burial rituals were designed permanently to place suicides outside the moral community, rather than to bring them back within it. The other important difference is that suicides were dead, and therefore one of the two ends of corporal punishment, immediate bodily pain (which might be expected to remind and therefore to deter and reform), could not be achieved.¹⁴ This is why eighteenth-century writers on suicide stressed that punishment ⁷ Huntington and Metcalf, Celebrations of death, 8–11. ⁸ Works of Jeremy Bentham, vol. 1, 414. ⁹ Foucault, Discipline and punish, 49. Foucault here uses ‘penal’ in the widest sense of the word rather than to describe prisons. ¹⁰ Van D¨ulmen, Theatre of horror, 134. Egmond, ‘Execution, dissection, pain’, 105–6. ¹¹ K. Muir, The life and letters of Sir Thomas Wyatt (Liverpool, 1963), 39. ¹² Thompson, Customs in common, 478–91. ¹³ P. Grifﬁths, ‘Bodies and souls in Norwich: punishing petty crime, 1540–1700’, in Devereaux and Grifﬁths (eds), Penal practice, 85–120. ¹⁴ Works of Jeremy Bentham, vol. 1, 413–20.

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should discourage others and conﬁrm moral limits for society at large. Francis Ayscough, a Hertfordshire rector, expressed such a hope when reporting in a footnote to a published sermon: ‘I am well informed, that in Scotland , where the Penalties on Self-Murder are impartially executed, the Crime is very rarely committed.’¹⁵ By the time Ayscough wrote in 1755, penalties of any kind were seldom enforced, yet Scots were still killing themselves, and there is no way of substantiating his claim. Rather than rejecting these emotive and apparently irrational components as archaic or odd, historians should see them as central. At one level the Fabians were right: punishing the dead represents the sort of vengeful collective passions—the ‘deeply irrational and emotive elements’—which Durkheim, too, saw as fundamental to punishment.¹⁶ In a less value-loaded way, his contemporary J. F. Stephen put it thus: ‘The criminal law proceeds upon the principle that it is morally right to hate criminals, and it conﬁrms and justiﬁes that sentiment by inﬂicting upon criminals punishments which express it.’¹⁷ Retributive punishment had powerful moral underpinnings. Not only was it (and the whole idea of revenge) widely conceived as legitimate and natural, it was also expected. What appears to modern observers as vindictive was to early modern people vindicatory. Vengeance became juxtaposed with sociability in the age of Enlightenment, the former outside the social economy, the latter a natural aspect of it.¹⁸ Yet contemporaries still saw a place for retribution, and Scottish jurist Lord Kames wrote in 1758 of ‘revenge, the darling privilege of human nature’.¹⁹ If there was reformatory intent, it was to use the corpse of the suicide, whose death had created a breach in the social fabric, to re-make community: to use a physical body as a location rather than an object of punishment in order to heal a social body, for punishing the dead had more to do with a language of community than it did with the mechanics of pain.²⁰ An extension of Foucault’s notion of bio-politics helps conceptualize this. The act of suicide was generally a secret one. Where corporal punishment was inﬂicted, the suicide, in contrast, carried its signs very publicly. As Foucault recognized, the body was essential to this: ‘It was the task of the guilty man to bear openly his condemnation and the truth of the crime that he had committed. His body—displayed, exhibited in procession, ¹⁵ Ayscough, Discourse, 13. ¹⁶ E. Durkheim, The division of labour in society translated by W. D. Halls (London, 1984), 44–64. For a summary of Durkheim’s theory of punishment as an issue of morality and social solidarity, see D. Garland, Punishment and modern society: A study in social theory (Oxford, 1990), 28–35, 162. ¹⁷ Stephen, Criminal law, vol. 2, 81. ¹⁸ P. Saint-Amand, ‘Original vengeance: politics, anthropology, and the French Enlightenment’, Eighteenth-Century Studies 26 (1993), 403. ¹⁹ Historical law tracts, vol. 1, 30–1, quoted in Stein, Legal evolution, 28. ²⁰ R. McGowen, ‘The body and punishment in eighteenth-century England’, Journal of Modern History 59 (1987), 654, 665, 679.

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tortured—served as the public support of a procedure that had hitherto remained in the shade: in him, on him, the sentence had to be legible for all.’²¹ Putting a sociological twist on Foucault, Bryan Turner calls this ‘the somatic society’: ‘a social system within which the human body, a site of constraint and resistance, becomes the principal focus of political and cultural activity. Within this context, the body is the dominant carrier of contradictions and crises of social relations and the principal means by which they are thematised’.²² Suicide is often presented as the odd man out, and punishing the dead seems to exemplify this.²³ Yet in many ways the deviant dead were treated comparably with the deviant living. Pollock and Maitland observed of the Middle Ages that ‘trial by jury must have been in the main a trial by general repute’.²⁴ Criminals had an active part to play in their trials, bringing to them a store of ‘credit’ that was weighed against what they had allegedly done. They performed in the theatre of law, wearing their guilt or innocence for the court to see. Removed by death from playing an active role, suicides nevertheless left cultural capital (including their reputation and their kin and social relationships) that could be drawn upon or manipulated for or against their bodies, goods, networks, and memory. The treatment of any one suicide was the outcome of multiple inputs from interested parties who sought to ‘defend’ or ‘prosecute’ the corpse, both the body and its representations being constantly managed. There was no sure treatment based on the simple act of self-murder, reﬂecting absence of universal abhorrence of suicide at one period or sympathy towards it at another. Instead, sensibilities were selective and concerns differentiated. The crux in decision-making was not necessarily the intention or competence of the suicide—the ostensible focus of the coroner’s inquest in England—but a broadly deﬁned, situational understanding of blame. Punishing the dead exempliﬁes a penal system which paid close attention both to the circumstances in which a crime was committed and to the reputation of the accused.²⁵

5 . 2 AT T E M P T E D S U I C I D E A N D T H E P U R P O S E S O F I N T E RV E N T I O N

5.2a ‘It is not even a misdemeanour to attempt suicide in Scotland.’ Rehabilitating and protecting the suicidal If corporally punishing the dead was primarily retributive, treatment of attempted suicide ﬁts better with the idea that tribunals and individuals in authority ²¹ Foucault, Discipline and punish, 43. ²² B. Turner, ‘Theoretical developments in the sociology of the body’, Australian Cultural History 13 (1994), 27. ²³ Murray, Suicide, vol. 1, 399. ²⁴ Pollock and Maitland, History of English law, vol. 2, 655. ²⁵ Herrup, ‘Law and morality’, 106.

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pursued principally reformatory policies, chastening and purifying the wayward in an attempt to correct and normalize, even if that too sometimes involved public acknowledgement that might be shameful. Sandy Murray suggests that in the Middle Ages the church inﬂicted hardly any punishment on attempted suicide, while a civil judge did ‘whatever came into his head’. Murray goes on to propose that the law on attempted suicide hardened during the early modern period.²⁶ Yet even then secular and religious authorities remained unclear over what they should do other than protect life and liberty. It was not until the nineteenth century that the different approaches of Scots and English crystallized into something like coherent, if very different, policies. Scots lawyers like Mackenzie argued that attempted suicides ought to be tried as attempted murderers, though warning that ‘the design must be clearly proved’.²⁷ Erskine later disagreed, describing this as both ‘rigorous’ and illfounded, even if the offence was ‘as truly criminal as the murder of one’s neighbour’. His reasoning was that ‘a simple attempt to kill is not accounted murder’ except in special circumstances.²⁸ While an attempt to commit a felony was normally punished by some lesser penalty than that conferred upon a successful deed, attempted suicide was not the same as attempted murder, and failed suicides were hardly considered at all. Until Mackenzie and Stair (below), Scots legal writers made no speciﬁc mention of attempted suicide, leaving criminal records largely mute, and ecclesiastical authorities unsure about how to react. Examples of this tentative and circumspect approach occasionally enter Kirk records. One case concerned Agnes Bovy or Bowie, who in 1603 appeared before the Kirk Session of Dundonald in Ayrshire ‘accusit of the ungodlie intentioun to haif drouned hir self unles scho had beein be the providence of God rescevit thruch the help of nichtbouris’. The Session accepted that she ‘ernestlie repentit’. Her case was continued ‘to forther advysment’, but disappears from the record, suggesting repentance was enough.²⁹ One option Dundonald might have taken was to seek advice from secular magistrates. On 15 January 1613 the Kirk Session of South Leith asked one of the bailies of Leith ‘to aduyse with the counsell of Edinburgh to see what ordour may be takine with John Robertsoune Schot for the putinge violent hands on him selfe to haue slaine him selfe’.³⁰ This entry is unusual in these extremely full Kirk Session records and may reﬂect special circumstances, as it came just a week after a man had been dragged and gibbeted in Edinburgh for hanging himself.³¹ It also occurred in an age when the crown was trying to link civil and ecclesiastical governance in the pursuit of order, and ²⁶ Murray, Suicide, vol. 2, 422–5. ²⁷ The laws and customs of Scotland in matters criminal, I.XII.IV. ²⁸ Erskine, Institute, IV.IV.46. ²⁹ H. Paton (ed.), Dundonald parish records. The session book of Dundonald, 1602–1731 (Printed for private circulation, 1936), 40. ³⁰ NAS CH2/716/2, f. 85v. ³¹ ECA Town Treasurer’s accounts, 1612–23, p. 195.

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when culprits were being created.³² That the clerk got his name wrong may suggest he was not well known to the Session. As with the Dundonald case, no further record of proceedings was made, suggesting that action taken (if any) was thought unworthy of a minute. Examples from the early years of Protestantism, where the Kirk did minute action against attempted suicides, suggest they were treated as other moral miscreants. In 1592 an Elgin woman was put in the ‘jougs’ (stocks) ‘for committing cruelty on her own person with a knife’, with the instrument ‘inﬁxed in the tree beside her’.³³ Both the person and the instrument were exposed to shame. In 1615 Kirkcaldy Kirk Session ordered the same treatment and public repentance on a woman ‘for wanting to hang herself’.³⁴ However, examples of such interventions are few, and the abiding impression is that at no date did the Kirk have much interest in disciplining attempted suicide, provided repentance was evident. There are but two recorded actions in the unusually full and continuous Kirk Session records of Lasswade, a populous parish near Edinburgh, between 1617 and 1795. Both came at times of marked political and religious crisis. The ﬁrst was in 1648 when Bessie Young was ordered to confess publicly that she had tried ‘to put hir self doune in a well’ and then to sit on the stool of repentance.³⁵ The second came in 1659 when two women were accused of ‘scolding, ﬂyting and blasphemy’ and one for attempting to drown herself. The dispute arose from an accusation of theft. Considering ‘how hainous a sin it is to put hand in herself and saying that she would drown herself’, the Kirk Session committed her to stand at the pillar of repentance in sackcloth and confess her guilt.³⁶ Yet the woman, Bessie Pringle, may have been disciplined as much for her lack of contrition and religious knowledge as for her attempted suicide. Six months later, following an altercation with another woman, she was ‘found ignorant and not sensible of her great scandell given and unripe for satisfaction [reconciliation]’.³⁷ Generalized affront to the Session and to notions of Christianity were behind the action taken against her. Kirk Session and Presbytery accounts of attempted suicides are as much narratives of admonition, penitence, and reconciliation as they are records of punishment, and even apparently instrumental threats of suicide could be treated seriously. Janet Lapslie was cited before the Kirk Session of Stirling in January 1696 for being unmarried and with child. Disciplinary procedures would ³² Makey, Church of the covenant, 11–12. ³³ NAS CH2/145/1, f. 42v. ³⁴ Quoted in Henderson, Scottish ruling elder, 132. No such entry has been located in NAS CH2/636/34. ³⁵ NAS CH2/471/2, 21 May 1648. ³⁶ NAS CH2/471/3, 24 and 28 August 1659. Her punishment was deferred until the Justices of the Peace ‘take course with her’, but this was for blasphemy and alleged theft. NAS CH2/471/3, 4 September 1659. ³⁷ NAS CH2/471/3, 25 March 1660. Bessie was allowed six months to improve her knowledge and did not perform her penance until December 1660. NAS CH2/471/3, 30 November 1660 and 23 December 1660.

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normally have been started against her, but ‘the session, considering that this woman has formerly been under great ﬁts of distraction and is not yet fully recovered and may be yet much more subject to them if they should proceed against her, being that she vowed she would drown herself ere she went to the stool of repentance with such like demented expressions do therefore delay her satisfaction for some time until it shall please the lord se may recover’.³⁸ This example comes from a period when Kirk discipline was riding high, yet there is no record of her performing any penance. Two years later the Session responded in a similarly measured manner to the drunken scolder Janet Blackburn, who was released from prison by the burgh magistrates after threatening ‘if continued in prison or brought before the congregation to putt hand to herself’: they decided on a private rebuke and a ﬁne for her offence of drunken abuse.³⁹ In this case a ﬁnancial penalty and ‘verbal punishment’ was seen as enough.⁴⁰ Kirk Sessions did not record everything they did, but the rarity with which attempted suicide is mentioned in the sources suggests it was treated informally and as an adjunct of some more important transgression. Sessions which did act tried to protect and re-educate as much as to discipline, and this seems to have been an occasion where the Kirk found itself obliged to offer social services that people actually wanted.⁴¹ The same stress on care, awareness, and responsibility is clear when a secular tribunal, Stirling burgh court, dealt with an attempted suicide in 1561. The charge was that John Henderson had been seized with a stolen knife, but the background was more complex. Henderson had taken the knife ‘in his madnes, in maner of frannessy or desperatioun, havand na ansuer bot: Put me doun, put me doun, I set nocht by quhiddir I gang to God or the dewill’. The presiding bailie, ‘havand consideratioun of his madnes, ignorance, and appeirand desperatioun’, assigned Henderson to be looked after by one Henry Rhynd from Auchterarder (Perths.) ‘quhill tyme wirk that God ma provid him be his grace to cum to his rycht wittis’.⁴² The court case was less a punitive action than a formal way of ﬁxing responsibility for John’s supervision. The bailie recognized that Henderson was mad and lacked the discrimination that could justify punishment, but not that his state of mind exonerated him completely from responsibility as a Christian and a subject of the king: duties which, with time, care, and grace, he hoped John would eventually be able to fulﬁl. John had to be protected from himself, but his rights had also to be safeguarded. The balance between protecting both personal liberty and personal and public safety is shown in a case from 1579, when Thomas Doby, burgess of Selkirk, accused his brothers Robert and James of assaulting him. He claimed they had ³⁸ NAS CH2/1026/5, 22 January 1696. ³⁹ NAS CH2/1026/5, 17 and 31 August 1698. ⁴⁰ M. Eder, Crime and punishment in the Royal Navy in the Seven Years’ War, 1755–1763 (Aldershot, 2004), 80–2. ⁴¹ As argued by Todd, Culture of Protestantism, 15–16. ⁴² Renwick (ed.), Extracts . . . Stirling . . . 1519–1666 , 79.

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enticed him to Robert’s house and there, aided by two others, they had allegedly attacked, beaten, stripped, bound, and robbed him. One component of their defence was that: The said Thomas Doby hes bene mad thir diverse yeiris bigane, lyke as he in his madness hes sindrie tymes riddin day and nycht to and fra in the cuntrie, and speciale in the nicht, armit with jak, steilbonat, pistolet, sword, and lanse stalf, showtand and cryand maist feirfullie; as alsua, at the tyme abonewritten, hurt himself with his awin quhinzear, and put ane cord about his awin nek to have hangit himself; quhairupon the said James, being moved of broderlie lufe, and feiring that the said Thomas sould haif put doun himself, tuke and band him, and thaireftir tuik fra him his armour and wappynnis as mycht hurt him or ony utheris; and utherwayis committit na spuilyie nor uther injurie to him.⁴³

In this example the actions of the defendants were presented as humane attempts to prevent Thomas from harming himself. They appealed explicitly to Christian ideas of brotherly love (Matthew 22:39). Indeed, the cases of Henderson and Doby both show that any desire to discipline or correct was counterbalanced by explicit considerations of familial or communal responsibility. While ofﬁcials were concerned with suicide as an aspect of policing, they also had moral and legal duties. For their part, kin and neighbours felt obliged to be solicitous of those inclined to harm themselves. Depending on time and place, attempts to help the suicidal ranged from money or carers provided by employers, friends, family, or an institution such as the parish or a burgh council, to company offered by concerned neighbours; from a place in a public lunatic asylum, to temporary incarceration, to being closely attended in the home; from a medical practitioner or clergyman’s care, to simple neighbourly reassurance or advice.⁴⁴ Interventions by early modern secular and religious authorities show both humanitarian concerns and continued ﬂuidity or creativity in dealing with the suicidal. Norms eventually solidiﬁed as attempted suicide came to be seen as a mainly personal problem, which churches, state, and the institutions of civil society had a moral responsibility to help. The law became more precise, not more or less rigorous. Prevention of suicide became part of the peace-keeping duties of magistrates, protection of the individual and others from violence being a legitimate and legitimating function of government. This explains Stair’s statement about controlling self-harmers: ‘We may also, without any injury, restrain a furious [manic] person, or one who is inferring violence to himself in his life or limbs, because this is not against an act of his lawful liberty, and is done as a duty in us of love and mercy’.⁴⁵ Stair afﬁrmed that ‘though man hath ⁴³ RPCS III, 107. ⁴⁴ P. Horden, ‘Household care and informal networks: Comparisons and continuities from antiquity to the present’, in P. Horden and R. Smith (eds), The locus of care: Families, communities, institutions, and the provision of welfare since antiquity (London, 1998), 24. ⁴⁵ Stair’s institutions, I.II.5 and supplemental notes, 6–7.

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power of his own person’ and could give consent to invasive medical treatment, ‘yet hath he no power of his own life, or his members, to dispose of them at his pleasure, either by taking away his life, or amputation, or disabling any members, either by himself, or by giving power to any other to do so’.⁴⁶ Acts of love and mercy were not new to the late seventeenth century, just more formally recognized. Then, and earlier, intervention required circumspection from authorities, and any actions had if possible to be sanctioned by close kin. Agencies of law and order remained cautious about the extent of their police powers over attempted suicides in the nineteenth century. In September 1822 the Edinburgh Advertiser reported that ‘a man at Leith attempted to hang himself, but was timely discovered by his wife, who had the presence of mind to cut him down. On recovering, he expressed his determination to effect his purpose some other time. He has since been placed under due restriction’.⁴⁷ That the nature of the restraint is unspeciﬁed is important, because constabulary recognized that their powers in these circumstances were limited. An early nineteenth-century manual directed at Scottish constables, published in multiple editions, was cautious about policing powers in general and makes no speciﬁc mention of attempted suicide.⁴⁸ This helps to explain the tentative description of ofﬁcial interventions and their enduring stress on public-spiritedness and humanity, rather than duty or the letter of the law. In the summer of 1823 a woman had been observed for some days ‘loitering about the banks of the Canal, with a child in her arms, and apparently bent on some desperate act’. Local people ‘watched her with the humane view of frustrating her intentions’, and on Tuesday a sergeant followed her and took her into custody ‘when in the act of precipitating herself into the water’. She was the wife of a man in West Port ‘and her appearance is that of extreme wretchedness’. The child was given to the father for its care and safety, but ‘the woman herself has been set at large, as there is no law to authorize her detention’.⁴⁹ At this level attempted suicide was simply an issue of social policy comparable with providing a wet nurse for a motherless infant or a companion for the old and inﬁrm. It was part of ‘police’, which in Scotland meant a wide-ranging concern with environment, health, and order (‘polis’ or civic government), rather than what the English described as ‘police’ (constabulary).⁵⁰ Nineteenth-century constabulary had to tread as ﬁne a line as had sixteenthcentury Kirk Sessions between a moral desire to protect, a religious need to correct, a social commitment to keep order, and a legal obligation to respect personal freedoms. Some lawyers thought that attempted suicide was a police offence in Scots law, but again they meant ‘police’ as the social function of charity ⁴⁶ Idem. ⁴⁷ EA 6139 (27 September 1822). ⁴⁸ [G. Tait], A summary of the powers and duties of a constable in Scotland (Edinburgh, 1812). ⁴⁹ EEC 17492 (14 August 1823). ⁵⁰ B. White, ‘Training medical policemen: Forensic medicine and public health in nineteenthcentury Scotland’, in Clark and Crawford (eds), Legal medicine, 145–63.

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or ‘the arts and sciences of government as they pertained to the internal affairs and security of the state’, including health and social policy.⁵¹ Despite having public prosecutors much earlier than England, formal prosecutions for attempted suicide were unknown, and the offence is not recorded in early nineteenthcentury Scottish Bridewell commission records either.⁵² Early twentieth-century authorities were explicit that ‘it is not even a misdemeanour to attempt suicide in Scotland’.⁵³

5.2b Ordering and policing in England: silence in the sources before the nineteenth century Over time, Scots law on attempted suicide became clearer, but neither more ‘severe’ nor more ‘lenient’.⁵⁴ It was consistently ‘humane’ in seeking to preserve life. In England the conventional picture of diminishing severity, with the modernization of values is open to question for different reasons. As in Scotland, a person who entered into a suicide pact and failed to die could be prosecuted as an accessory to murder or as a murderer, but otherwise attempted suicide was hardly considered a matter for religious tribunals at any period and for secular courts until the nineteenth century. Given the intense (if ﬂuctuating) concern Anglican church courts had with reforming behaviour, and the frequently reiterated claim that self-murder was the ultimate sin, it is surprising how rarely suicides enter their records at any date.⁵⁵ Church courts for the north of England almost never dealt with attempted suicide except as an adjunct to some other case. On the Isle of Man, even during the period when the bishop of Sodor and Man was governor (1664–8), the only instance where suicide is mentioned is in a defamation case. There is no record that this attempt was ever pursued (the evidence that it occurred at all is weak), and there are no examples of presentments for attempted suicide in any of the Manx church court records for the seventeenth and eighteenth century.⁵⁶ The Isle of Man was a jurisdiction where, a generation later, contemporaries expected ⁵¹ P. E. Carroll, ‘Medical police and the history of public health’, Medical History 46 (2002), 466–9. Andrew, Philanthropy and police, 6. ⁵² For example, ‘Account of the number of prisoners committed to the Bridewell of the county of Lanark and city of Glasgow . . . 1836–7’ [NLS Acc. 12721]. ⁵³ N. D. MacDonald, Letter to The Times (24 December 1932). MacDonald had been co-editor with J. H. A. MacDonald (the original author, in 1867) of the third, revised edition of A practical treatise on the criminal law of Scotland (Edinburgh, 1894). ⁵⁴ Murray, Suicide, vol. 2, 422. ⁵⁵ M. Ingram, ‘Reformation of manners in early modern England’, in P. Grifﬁths, A. Fox and S. Hindle (eds), The experience of authority in early modern England (London, 1996), 47–88. C. Haigh, ‘Communion and community: Exclusion from communion in post-reformation England’, Journal of Ecclesiastical History 51, 4 (2000), 721–44. ⁵⁶ Manx National Heritage Library, Diocesan presentments (1668), 19–21. I owe this reference and the contextual information to Dr Jenny Platten. For an Irish example where an allegation of suicide was used to claim defamation see Tait, Death, 22.

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to ﬁnd traditional ecclesiastical correction. Lord Chancellor King was sure of it: ‘If the ancient discipline of the Church were lost, it might be found in all its purity in the Isle of Man’.⁵⁷ The enduring power of church discipline on the island was because the church courts were much more local than on the mainland (closer to the Scottish system); they played a more important administrative role in important, non-disciplinary issues like succession and guardianship; and (like all Man’s courts) they were supported by both extensive community participation and ﬁrm seigneurial power.⁵⁸ The absence of prosecution of attempted suicide is telling. Attempted suicide was also noticeably absent from mainland church courts. One reason was a lack of interest from the ecclesiastical hierarchy. The only routine mention of suicide in articles and injunctions for early Stuart ecclesiastical visitations is about whether they were buried in churchyards; the issue of attempted suicide is never listed.⁵⁹ Other than burial (and indirectly in the case of disputed wills), suicide was not strictly cognizable before post-Reformation English church courts—any more than was murder or theft.⁶⁰ Very occasionally, church (and manor) courts became involved in investigating or adjudicating suspicious death, just as Scottish Kirk Sessions might incidentally be involved in murders and assaults as administrators of proof, penance, and penitence.⁶¹ In England this seems to have been the result of a hangover of cognizance over certain types of case within the remit of defamation (such as theft), which were increasingly the preserve of common law courts.⁶² Coupled with lack of mentions in either canon law or ecclesiastical injunctions was the relative distance of church discipline in England, even at a period when it was highly active. Until Scottish Presbyterianism was weakened by the Toleration Act (1712) and by subsequent religious divisions, Kirk Sessions operated on a day-to-day basis among congregations, meaning that discipline was maintained at a much higher level than was the case in England. Scottish ministers and lay elders were heavily involved in its practice, whereas in Anglican dioceses discipline was dealt with at no lower than the archdeaconry level, and the only ⁵⁷ Quoted in Kinnear, ‘Correction court of Carlisle’,192. King was writing of Thomas Wilson, bishop from 1698–1722. ⁵⁸ Ashley, ‘Spiritual courts of the Isle of Man’, 55. J. Sharpe, ‘Towards a legal anthropology of the early modern Isle of Man’, in R. McMahon (ed.), Crime, law and popular culture in Europe, 1500–1900 (Cullompton, 2008), 118–37. ⁵⁹ Fincham (ed.), Visitation articles. ⁶⁰ Murray, Suicide, vol. 2, 400–5, notes the paucity of ecclesiastical law on attempted suicide and the lack of practical concern with it in the Middle Ages. ⁶¹ Hearnshaw, Court leet of Southampton, 104–6. J. Kirk (ed.), The records of the synod of Lothian and Tweedale, 1589–1596, 1640–1649 (Edinburgh, 1977), esp. 19, 30–3, 37–8. ‘Extracts from the kirk-session register of Perth’, in J. Maidment (ed.), The Spottiswoode Miscellany . . . vol. 2 (Edinburgh, 1845), 276. W. A. Stark, The book of Kirkpatrick-Durham, Kirkcudbrightshire (Castle Douglas, 1903), 94–5. ⁶² J. Sharpe, Defamation and sexual slander in early modern England: the church courts at York (York, 1981), 14–15.

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duty incumbent on churchwardens was to present cases during visitations; the consistory courts were run exclusively by the clergy. The third reason for the absence from church court records is that pastoral emphases differed between England and Scotland. The Scottish clergy’s way of condemning sinners by name and pointing them out in person, known to the English as ‘particularizing’, was seen by many there as ofﬁcious, divisive, and undesirable. Espousing a strict code of personal discipline and restraint, some English Puritans notoriously indulged in this kind of speciﬁcally applied preaching, but Anglican correction was more generalized, gentler, and neighbourly. The Book of Common Prayer outlined procedures for ‘commination’, where a congregation cursed ungodly or uncharitable behaviour, but this highlighted sins without naming sinners.⁶³ Commination had fallen into disuse by the midseventeenth century, just as the practice of excluding people from communion for ignorance or being out of charity with neighbours had seemingly become rare; reconciliatory medieval ‘lovedays’ had long been out of fashion.⁶⁴ Mainstream Anglicans preferred a pastoral, accommodative ministry that balanced repentance and mercy in pursuit of fellowship.⁶⁵ The pursuit of attempted suicides at common law was also rare. In English law attempt might incur forfeiture, but only if the person died within a year and a day, this on the presumption that the attempt was the cause of death.⁶⁶ In the case of public attempts that might constitute breaches of the peace, magistrates could become involved, but only after statutes of 1554 and 1555 expanded the legal and regulatory duties of JPs.⁶⁷ A petition of 1631 to the earl of Northumberland’s steward on his estates in west Cumberland rehearsed how Edmond Bowman, ‘a verie Ideot at Lawe’, had over the course of thirty years ‘severall and sundrie tymes beene bounde as a madman, for feare that he shoulde kil himselfe and hurt the kings subiects’.⁶⁸ A rare example of formal incarceration occurred when a customs ofﬁcer was placed in the House of Correction at Preston (Lancs.) to prevent him harming himself. Richard Langton wrote on 12 June 1713: ‘I have inquired of Mr. Stanley, Governor of the House of Correction, concerning Johnson, the landwaiter, named in your letter, who tells me that Johnson is under a very dull and melancholy distraction, and, in all probability, never likely to be restored so farr to his senses as to be capable for business. He keeps him very close, and so tyed or chained, that he cannot do himself any ⁶³ Wrightson, ‘Decline of neighbourliness’, 30. ⁶⁴ Kendal, Lordship and literature, 180–7. ⁶⁵ C. Haigh, ‘The taming of reformation: Preachers, pastors and parishioners in Elizabethan and early Stuart England’, History 85 (2000), 572–88. E. J. Carlson, ‘Good pastors or careless shepherds? Parish ministers and the English reformation’, History 88 (2003), 423–36. ⁶⁶ Bolton, Justice of Peace, book 1, 51. Nelson, Justice of Peace, 259. See also The laws and customs of Scotland in matters criminal, I.XII.III. ⁶⁷ J. H. Langbein, ‘The origins of public prosecution at common law’, AJLH 17 (1973), 317–24. Stevenson, ‘Social and economic contributions’, 249 –50. ⁶⁸ CRO D/LEC 265, nos. 261, 336, 337.

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mischief, for he has attempted to cut his own throat since he came into the House of Correction.’⁶⁹ Johnson’s future was uncertain as his employer, the customs collector of Liverpool, had indicated that he would cease paying him at the end of his six-month contract in July. His incarceration may suggest punishment, and it was achieved by summary justice rather than a formal commission of lunacy, but as with Bowman it was more likely a secure way of protecting him from himself.⁷⁰ Such informal commissions are rare in the documents, and early modern English criminal courts treated attempted suicide formally as they did the interpersonal violence of assault: more as a private than a public matter. Attitudes to both offences changed in the second half of the eighteenth century. For example, Quarter Sessions began to imprison those guilty of affray where previously they had allowed private composition or a ﬁne.⁷¹ Reﬂecting a growing refusal to accept interpersonal violence, assault became a public concern increasingly pursued by public prosecutors. In England’s secular courts, attempted suicide too came to be treated as a breach of the peace during the nineteenth century, provided the attempt took place in public.⁷² Still, it is highly unusual for instances to enter formal court papers before c.1850. For example, Northumberland Quarter Sessions records for the half century 1580–1630 contain no indictments for attempted suicide; nor do those for 1771–1807.⁷³ Nor were they usually dealt with by (recorded) summary justice.⁷⁴ Only in the mid-nineteenth century did a legal judgment conﬁrm what some regarded as attempted suicide’s selfevident criminality. This was Reg. v. Doody (1854) which, reinforced by later judgments, pronounced an attempt at suicide a misdemeanour punishable by imprisonment.⁷⁵ Reference books for English magistrates make no mention of attempted suicide until after this date.⁷⁶ Olive Anderson has noted a rise in arrests for attempted suicide from the 1830s in London and from the 1860s in the provinces, which she attributes to the development of a constabulary and public prosecutors, coupled with a rising concern with public behaviour. A brief period of arrest seems to have been normal, but Anderson reports that formal prosecutions were unusual because of the problems of proof. By the century’s end, attempted suicide was being downgraded as an offence, though this was not recognized by Parliament until 1925, and indeed Lancashire Quarter Sessions records contain nearly 500 bills ⁶⁹ Lancashire RO DDKE/acc. 7840 HMC/1149. ⁷⁰ Dabhoiwala, ‘Summary justice’, 800–1. ⁷¹ P. King, ‘Punishing assault: The transformation of attitudes in the English courts’, Journal of Interdisciplinary History 27 (1996), 43–74. N. Landau, ‘Indictment for fun and proﬁt: A prosecutor’s reward at 18th century Quarter Sessions’, LHR 17 (1999), 507–36. ⁷² Dumont, ‘La r´epression du suicide’, 560. ⁷³ Northumberland RO QSI/1 ‘Vetera indictamenta’ 1580–1630; QSI/337–484. ⁷⁴ I owe this information to Faramerz Dabhoiwala and Peter King. ⁷⁵ 3 Cox 463. Reg. v. Burgess (1862), L. & C. 258. ⁷⁶ Anderson, Suicide, 283n.

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for the cost of prosecuting attempted suicides from the 1870s to the 1900s.⁷⁷ The treatment of attempted suicide in England shows that the trajectory of changing attitudes was not always towards ‘leniency’, even if deterrence and rehabilitation were an important part of the new interest in arresting, detaining, and sometimes trying attempted suicides there.⁷⁸

⁷⁷ Ibid., 263, 282–311, 423. See, for example, Lancashire RO QSP/4212/53, 4373/31, 4376/7 and 3729/60. ⁷⁸ Anderson, Suicide, 307. Jones, Crime in Wales, 81.

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PART 2 U N D E R S TA N D I N G T H E D E A D

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6 The Secularization of Suicide? 6 . 1 I N T RO D U C T I O N : A F R E N C H M O D E L , A N D AT T I T U D E S TOWA R D S B R I T I S H S U I C I D E Most cultural and literary studies of suicide contain two and a half millennia of historical background, which purport to show that attitudes moved in some vast cycle: a sort of cultural ‘Kondratiev wave’.¹ Ancients such as Seneca, we read, approved of, and even recommended, self-murder when it became impossible to lead an honourable and digniﬁed existence.² In contrast, the Augustinian tradition popularized by Thomas Aquinas in the Middle Ages opposed suicide, and it was this that dominated the high Christian era. During the Enlightenment, Stoical ideas became more acceptable, and suicide was seen as at worst morally neutral, and at best an expression of human freedom. Modern societies decriminalized it, removing sanctions that had arisen from the church and which buttressed its proscriptions in the face of more humane popular attitudes. The ﬁnal two phases, variously presented as darkness to light, harshness to leniency, proscription to liberalism (or any number of oppositional and value-loaded dyads) are seen as a triumph of the Christian church followed by its eclipse by forces of reason and secularism as part of an explicit or implicit process of modernization. This treatment of the tr`es longue dur´ee was already established in Enlightenment writings, with French philosophes like Montesquieu and Voltaire proposing new attitudes towards suicide as the way of getting at the church.³ Writing in the 1840s, F´elix Bourquelot proposed that during the late Middle Ages ‘on voit qu’`a mesure qu’on avance, l’antagonisme devient plus prononc´e entre l’esprit religieux et les id´ees mondaines relativement a` la mort volontaire. Le clerg´e continue a` suivre la route qui a ´et´e trace´e par Saint Augustin et a` declarer le suicide criminel et impie; mais la ¹ In 1925 Kondratiev proposed ‘supercycles’ in economic activity. N. Kondratiev, The long wave cycle translated by G. Daniels (New York, 1984). ² D. Outram, The body and the French Revolution: Sex, class and political culture (London, 1989), 90–105. ³ L. G. Crocker, ‘The discussion of suicide in the eighteenth century’, Journal of the History of Ideas 13 (1952), 47–72. McManners, Death and the Enlightenment, 411–14.

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tristesse et le d´esespoir n’entendent pas sa voix, ne se souvient pas de ses prescriptions’.⁴ This interpretation mutated and matured in the nineteenth century and, in its different forms, characterizes many later analyses, even if the polemical purpose of writing the last (secular) chapter in the famous French church-state struggles of the nineteenth and early twentieth centuries was sometimes misplaced. The Edwardian sociologist Westermarck carried on the French canon: ‘When not restrained by the yoke of narrow theology it [common sense] is inclined in most cases to regard the self-murderer as a proper object of compassion rather than of condemnation, and in some instances to admire him as a hero.’⁵ This was an indicator of ‘moral progress’, which ‘makes us more considerate as regards the motives of conduct; and . . . the despair of the self murderer will largely serve as a palliation of the wrong which he may possibly inﬂict upon his neighbour’.⁶ Meanwhile Fedden linked French anticlericalism with Fabian humanity, his book clearly establishing for English speakers that the secularization of society and the normalization or re-normalization of attitudes towards suicide indicated liberalization and modernization. To these inﬂuences was added the powerful scheme of modernization offered in the early twentieth century by Weber. His concept of ‘rationalization’ links the psychic and scientiﬁc by suggesting that notions of wonder and mystery were displaced from human life by consistent attempts to construe events in ways that can be calculated, and therefore predicted and controlled. Before this happened, ‘the ability and disposition of men to adopt certain types of practical rational conduct . . . have been obstructed by spiritual obstacles’ or ‘magical and religious forces’ that create ‘serious inner resistance’.⁷ For Weber, the rationalization of action can only be realized when traditional ways of life are abandoned. His task was to uncover the forces in the West that caused people to change their religious orientation and encouraged them to develop a desire for acquiring goods and wealth. Weber found these within religion as well as in outside forces such as bureaucracies and literacy. Thus he envisaged the cumulative combination of various rationalization processes that eventually produced the cultural landscape of ‘Occidental rationalism’, where religion was reduced to a marginal, private concern. Secularization is ‘a family of theories of religious change’, which can be understood in four ways: the decline, disappearance, privatization, or transformation of religion in society.⁸ Least relevant to the study of suicide is the notion ⁴ F. Bourquelot, ‘Recherches sur les opinions et la legislation en mati`ere de mort volontaire pendant le mˆoyen age’, Biblioth`eque de l’Ecole des Chartes 3–4 (1841–3), vol. 4, 253, quoted in Westermarck, Origin of moral ideas, vol. 2, 257–8. ⁵ Ibid., 261. ⁶ Ibid., 264. ⁷ M. Weber, ‘Author’s introduction’, in The Protestant ethic and the spirit of capitalism translated by T. Parsons (London, 1930), xxxix. ⁸ P. S. Gorki, ‘Historicizing the secularization debate: Church, state, and society in late medieval and early modern Europe’, American Sociological Review 65 (2000), 141 (emphasis in original).

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that religious observance, judged for example by church attendance, may have declined. More pertinent is the idea that people became sceptical and embraced, for example, deism, thus weakening religious taboos on suicide. However, the most applicable meanings are the vaguest and most passive: what Owen Chadwick termed a ‘growing tendency in mankind to do without religion’.⁹ Thus the church lost administrative and political inﬂuence, as exempliﬁed in changing burial legislation and the decline of ecclesiastical ways of handling debt and credit. Religion became a personal matter as community (T¨onnies’ Gemeinschaft) became more socially differentiated and turned into society (Gesellschaft).¹⁰ Most relevant of all, secularization may signify that religion was overtaken by science as an explanation of events in society and nature.¹¹ Religion was superseded or displaced by science, ‘superstition’ by knowledge, the sacrilege of suicide by the neutral domain of insanity. In this scheme religion (particularly demonology in matters of the mind) tends to be seen as a passive or static set of beliefs and practices, which are gradually outmoded, reduced to mere survivals, and then displaced altogether by the aggressive power of medical (especially psychiatric) explanations.¹² MacDonald and Murphy see secularization as a ‘rejection of belief in the frequent and potent intervention of the supernatural in the natural world’ and a ‘demystiﬁcation or disenchantment of suicide’ as scientiﬁc interpretations brought about less negative or value-loaded responses.¹³ The rise of non compos mentis verdicts on suicide was ‘an implicit rejection of religious and folkloric interpretations that condemned it utterly in favour of medical explanations that excused it’.¹⁴ Such arguments have a strong element of tautology about them since the reason for the phenomenon (secularization and medicalization) is to be found in the phenomenon itself. This section questions the secularization model on two grounds. The ﬁrst is the robustness of the non-literary sources used to justify a declining role for religion in understandings of suicide. In particular, the amply demonstrated shift from felo de se to non compos mentis verdicts in England is not a robust indicator of changing attitudes. Instead, the Devil was deployed sparingly, contextually, and tactically by British people. Rather than a one-off change that can be described as secularization (or medicalization), S. Bruce, God is dead: Secularization in the West (Oxford, 2002), 1–44. It was a word used in the eighteenth century. CP 995 (5 November 1793). ⁹ O. Chadwick, The secularization of the European mind in the nineteenth century (Cambridge, 1975), 17. ¹⁰ T¨onnies, Community and Society. ¹¹ B. Worden, ‘The question of secularization’, in A. Houston and S. Pincus (eds), A nation transformed: England after the Restoration (Cambridge, 2001), 21. ¹² P. Vandermeersch, ‘The victory of psychiatry over demonology: The origin of the nineteenthcentury myth’, History of Psychiatry 2 (1991), 351–63. R. Hayward, ‘Demonology, neurology, and medicine in Edwardian Britain’, Bulletin of the History of Medicine 78 (2004), 37–58. Lis and Soly, Disordered lives, 27–8. Gaskill, Crime and mentalities, 12. ¹³ MacDonald and Murphy, Sleepless souls, 6, 306, 315, 335. ¹⁴ Ibid., 124.

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attitudes towards suicide exemplify an enduring ‘hybridization’ of the spiritual and material worlds.¹⁵ Religion itself was changing, adapting to new legal and scientiﬁc ideas, but in a climate where denominational contests were far more important than anti-clericalism. At the same time, Scots Calvinists saw a clear place for suicidal thoughts in their soteriology, even if the idea that suicide itself was defensible remained marginal to most Enlightenment thought. In short, secularization should not be ‘understood as the passive demotion of religion to the corners of human experience’ but ‘as a contingent and active set of strategies that change religion over time’.¹⁶

6 . 2 T H E D EV I L , T H E L AW, A N D S U I C I D E

6.2a The place of the Devil in understanding English suicide Lured by the possibility of quantifying mentalities, some historians have made much of the phrase ‘at the instigation of the devil’, often associated with coroners’ judgements of felo de se. They portray the supposedly characteristic early modern verdict on blameworthy suicides as a sign of traditional religious attitudes, which gave way in the eighteenth century to a more enlightened, secular, and ‘selectively medical’ mindset, encapsulated in the increasingly routine verdict of non compos mentis. The ﬁrst thing to note is that ‘at the instigation of the devil’ is not always found in descriptions of culpable suicides. Formulae without mention of the Devil characterize half the felo de se verdicts entered by Cumberland inquests of the late seventeenth and eighteenth century. From a legal point of view it was more important to mention that the person had acted feloniously and ‘against the peace’. Nor is a reference to the Devil usually found in Tudor almoner suits before Star Chamber, and not always in early Stuart ones. ‘At the instigation of the devil’ was only one legal term of art to describe felonious killing. It was a regular legal phrase, but one whose use should not be read as contextual information. It was instead a legally convenient and conventional constitution of a charge or judgment, designed to indicate wrongdoing, which is found across the English-speaking and common-law-inﬂuenced world.¹⁷ It ¹⁵ S. K. Morrissey, ‘Drinking to death: Suicide, vodka and religious burial in Russia’, P&P 186 (2005), 145. ¹⁶ J. Sheehan, ‘Enlightenment, religion, and the enigma of secularization: An overview’, AHR 108 (2003), 1080. For the origins of these ideas see Gorki, ‘Historicizing the secularization debate’, 138–67. ¹⁷ Hanawalt, Gender and social control, 41. P. Lake, ‘Deeds against nature: Cheap print, Protestantism and murder in early seventeenth-century England’, in K. Sharpe and P. Lake (eds), Culture and politics in early Stuart England (London, 1994), 268. M. J. Edmunds and J. Martin (eds), The Pennard manor court book, 1673–1701 (Cardiff, 2000), 43. N. M. W. Powell, ‘Crime and the community in Denbighshire during the 1590s: The evidence of the records of the Court of Great Session’, in J. G. Jones (ed.), Class, community and culture in Tudor Wales (Cardiff, 1989), 287. G. E. Geddes, Welcome joy: Death in puritan New England (Ann Arbor, 1981), 96.

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survived into the nineteenth century—along with the phrase ‘by a visitation of God’ as an equivalent for, or addition to, a verdict of death by natural causes.¹⁸ Olive Anderson sensibly counsels against reading too much into diabolical references, because to do so is to focus on the melodramatic and lurid: suicide was a sin, but there is ‘little evidence of taboo, unique dread, or primitive horror’ in her period or earlier.¹⁹ Satan’s part in suicide is marginal in most early modern English documentation and is egregiously absent from some sources that might be thought best to represent a spiritual viewpoint. Even when the person buried was explicitly described as felo de se, clergy or their assistants rarely paused to gloss the death in parish registers. When they did they hardly spared words, but those were more of generalized shock than of spiritual condemnation, and diabolical attribution is almost unknown. Two Lancashire cases exemplify the more usual type of commentary. One comes in a marginal entry of the parish register of Dean: ‘Jacobus Brearley, clericus parochialis de Deane semetipsum occidebat et ut felo de se sepult: fuit in bivium sive de sertum de Deane’ (27 April 1665).²⁰ A second comes from June 1713 when the parish clerk of Kellet (Lancs.), who signed off the entry ‘T.H.’, wrote: ‘Robertus Atkinson sese suffocavit laqueo. Exemplum horrendum atque miserrimum Talia fando Lachrimabitis omnes’.²¹ Even when phrases such as ‘at the instigation of the devil’ were used in coroners’ inquests, those that have depositions attached to them make little effort to explore the spiritual dimensions of motivation. Witness statements are important because, as Hunnisett showed and as recent work also demonstrates, the information that was recorded for justice eyres or, later, for transmission to King’s Bench, was formulaic compared with the depth and variety of locally generated documents on suspicious death.²² Sara Butler has shown that only in a single instance did medieval juries of presentment to justice eyres rationalize suicide by blaming the Devil, though nearly a third of coroners’ inquests did so.²³ The reason for the difference is not that medieval coroners’ juries were closer to the ‘popular’ mind than those at eyres: they comprised comparable social groups. Medieval inquest ﬁndings tend to be richer in detail and more varied than those reported at eyres, but inquest juries could make the attribution easily because the standard of proof they applied was low. Yet inquest witnesses did not frame their understandings around diabolical intervention. Unfortunately, depositions rarely survive prior to the nineteenth ¹⁸ NA ASSI47/25. ¹⁹ Anderson, Suicide, 235. ²⁰ A. Sparke, The registers of the parish church of Deane, burials–1604: 1613–1750 (Bolton, 1917), 428. ²¹ W. Farrer, The registers of the parish church of Over Kellet (Bolton, 1911), 53. ²² Hunnisett, ‘The medieval coroners’ rolls’, 95–124. Neville, ‘Ofﬁce of coroner’, 50–1. ²³ Butler, ‘Local concerns’, 826. However, MacDonald, Mystical bedlam, 136, believes selfdestructive thoughts were commonly associated with the Devil. Watt, Choosing death, 252–64, also ﬁnds that suicide was often linked to demonic possession in Reformation Geneva.

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century, but one jurisdiction that made up part of Cumberland has some from the late seventeenth century onwards. In only one out of 34 inquests with a total of 103 depositions (encompassing felo de se and non compos mentis verdicts alike) was the Devil mentioned. Three witnesses reported supernatural aspects of John Atkinson’s experience prior to his death in 1696, saying variously that he had ‘talked very strangely of Hell and all evill spiritts’ and ‘that God had forsaken him and the devill had gotten hold of him’.²⁴ However, one witness sought a somatic explanation when he asked him ‘if the cairse [cares or afﬂictions] of his body did not cause him to talk after that manner’. A fourth man, William Robinson, the vicar who had been sent for to pray with Atkinson, ‘had severall discourses about his salvacon & that he seemed very penitent & said that the devill had deluded him, & suggested that unless he destroye himself he should be like a roareing dragon’. Other than the clergyman, the witnesses who mention the Devil either simply reported or actively questioned the attribution. None of the other ten witnesses mentioned diabolic dimensions. His sister talked of God as the ultimate force, saying that Atkinson tore at his throat with his ﬁngers ‘like a mad man’ and that she had not the strength to stop him: had she tried, ‘he would have done the like to her & killed her if God would have suffered him’. Yet another man who asked after John reported the reply: ‘the world had made him in dispaire’. John’s brother George saw his condition as somatic and consulted a doctor who advised that he was ‘in a deep melancholly’. Indeed, the coroner’s jury found Atkinson a lunatic who died of ‘a mallancholly feavour’. This absence of mentions is doubly surprising, for coroners’ inquests and other courts might delve deeply to ﬁnd the reasons behind suicide and to make sure nobody else was involved. Instead of seeking an ultimate reason, they focused on proximate causes that came out of recognized emotional states and their environmental origins or human agencies. Widow Anne Thompson was quizzed by the inquest at Barnsley, Yorkshire, into the death of Peter Clayton, labourer, who hanged himself with a halter in a stable in March 1654. Anne knew the deceased very well, and the indignation and hurt she felt at the questions posed to her springs out from the documents. She said that she and Clayton ‘had for a long time loved or beene in love together & had an intention to have made a marriage’, but ‘utterly denyes that she was any wayes shereing or guilty to his death or knew of the same till she see it, neither had they two att any time any fallinges out or ill words or other passages of discontent betwixt them but was very kind & loveinge the day before his said death she beeinge now very sorrowfull for the same’.²⁵ Apparently demonstrating diabolical belief, an entry in the famous diary of Samuel Pepys actually shows similar layers of understanding. Between Anthony Joyce’s throwing himself into a pond at Islington and his demise on ²⁴ CRO D/LEC/CRI/5/3. MacDonald and Murphy, Sleepless souls, 56, wrongly transcribe one of the references as diabolical. ²⁵ NA ASSI 45/5/1/22, 23. See also ASSI 45/1/4/13.

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21 January 1668, he was able to confess to attempting suicide, ‘being led by the devil’. But Joyce elaborated. Pepys reported ‘his trouble that he found in having forgot to serve God as he ought since he came to his new employment; and I believe that, and the sense of his great loss by the ﬁre, did bring him to it, and so everybody concludes’.²⁶ The focus on proximate, everyday causes rather than ultimate spiritual ones is also demonstrated in a case before the Council of Wales during the 1630s (see 4.6). John Blake’s suicide was allegedly because he and his wife ‘did nott agree or live in the feare of God and therefore the said John grewe into discontent’ and tried several times to kill himself before succeeding.²⁷ The charge goes on to rehearse conventional phrases about the instigation of the Devil and the voluntary, wilful, and thus felonious nature of the felo de se, but the detailed witness statements put a subtly different construction on the connection between lack of godliness and despair. The widow, Elizabeth Blake, told a young woman after his death: ‘the devill he had served and the devill had him’. Yet she was also described as ‘sorrowfull’ and showed some spirit in approaching the man she knew had used John’s body in an attempt to have an enemy convicted of murder. The man, Richard Rowe, had put Blake’s corpse on a horse, taken it to the seashore, and stabbed it. Elizabeth said to Rowe: ‘shee did wonder howe Blake came or was carryed to the place where he was found dead, unless the devill had carryed him on his back thither’.²⁸ This accusatory remark used reference to the Devil metaphorically to evoke malign (human) agency, just as Mrs Blake expressed her dislike for her late husband. Invoking the Devil did not always imply a literal belief in his external, supernatural agency, but could be simply a way of referring to human weakness.²⁹ Blaming the Devil may have been conventional, but it was also tactical. Deciding to attribute suicide to God’s judgement or the agency of the Devil depended crucially on the politico-religious standpoint of the attributor and the attributee in narratives of what was known as ‘particular Providence’. An example of their political use in Elizabethan England comes from the suicide of Henry Percy, eighth earl of Northumberland. Like Richard Hunne in 1514, Percy was a political exemplar, observers selecting how to present his death from a spectrum of explanations that depended on their political viewpoint. Allegedly involved in the Throgmorton plot in favour of Mary Queen of Scots, Percy languished in the Tower for six months before being found shot through the heart. Fellow Catholics claimed he had been murdered, explaining why the Privy Council saw ﬁt to publish a detailed account of what the title of the pamphlet proclaimed was his suicide.³⁰ Protestants saw in his death nothing more than ²⁶ Latham and Matthews (eds), The diary of Samuel Pepys, vol. 9, 32–3. Joyce had been a tallow chandler who turned to innkeeping. ²⁷ HL Ellesmere 7956. ²⁸ Idem. ²⁹ Anderson, Suicide, 234. ³⁰ Crudelitatis Calvinianae exemplas duo recentissima ex Anglia (Cologne, 1585), offers the Catholic viewpoint. A true and summarie reporte of the declaration of some part of the earle of

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divine judgement removing grace and surrendering Percy to the Devil: ‘that God by his iust iudgement had for his sinnes and ingratitude taken from him his spirit of grace, and deliuered him ouer to the enimie of his soule’.³¹ The Devil was deployed tactically, not habitually. Finally it is worth laying to rest the idea that the alternative verdict was a sign of the medicalization of understandings. That non compos mentis refers to state of mind (or, more properly, intent) does not make it a clinical judgement. The idea that suicide became psychologized relies more on modern readers’ intuitive association of suicide with some level of mental dysfunction than it does on early modern understandings. From the sixteenth to the nineteenth century a properly medical approach discriminated between the causes of suicide and the mental states behind it—there was mad and sane suicide—whereas eighteenth-century coroners’ inquests increasingly offered blanket exculpation based on the pious perjury of insanity. An inquest verdict of ‘lunacy’ was not a ‘selectively medical’ ﬁnding: it was not medical at all.³²

6.2b Law, super-nature, and the absent Devil in Scotland The phrase ‘at the instigation of the devil’ is a legal term of art rather than a literal description of the beliefs associated with English self-murder. In Scotland the comparable phrase was ‘haveing abandoned and shaken off all fear of God’: at law and in many other contexts, Scots were rather careful about invoking the agency of the Devil.³³ Some escheats suggest proximate causes, such as being outlawed or awaiting trial or punishment, but only one records an ultimate cause. This was the case of Janet Linlithgow, daughter of the late George Linlithgow in Hyndefurd, who died in June 1568 ‘throw the said umquhile Jonettis abhominabill and crewel murthuring, slaying and drowning of hirself be inspiratioun and temptatioun of Sathan in the watter of Clyd’.³⁴ This mention of the Devil is unique, and among 348 escheats there are only three more explicit (if general) religious references. The next suicide escheat after Janet’s describes another woman ‘putting of handis in hir awin persoun, inventing and using of sic unlawfull and ungodly meanis of hir awin ingyne and wickit intent as seperatit the lyff fra hir body contrar the law of god and nature’.³⁵ This last phrase was also one of art, used increasingly in the sixteenth century in criminal charges to invoke two sources of law, the others being custom and the laws of other nations. Northumberlands treasons . . . touching the manner of his most wicked and violent murder committed upon himself with his own hand (London, 1585). R. Lomas, A power in the land: The Percys (East Linton, 1999), 125–6. ³¹ Holinshed’s chronicles, vol. 4, 615. ³² Houston, ‘Medicalization of suicide’. ³³ As used in the case of an Argyllshire suicide of 1679. Cameron, Justiciary records, 100. ³⁴ RPSS VI, no. 323. NAS PS1/37, f. 72v. ³⁵ RPSS VI, no. 402. NAS PS1/37, f.89v. NAS E2/21, 17 April 1600. CS15/77/36, Young v. Pearson (1600). PS3/2, 352–3.

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Scots were sparing in attributing any bad things to the Devil. The late sixteenth-century diary of Robert Birrel contains an extensive array of awful murders and their punishments, but only one is described as ‘ane rair and vounderful accident [that] fell out by Sathan’s instigatione’.³⁶ This was a man’s murder by his adulterous wife and incestuous brother in October 1567. Both this entry and the mention of the Devil in the escheat of Janet Linlithgow came at times of great politico-religious upheaval following the murder of Mary Queen of Scots’ husband, Lord Darnley, in February 1567, her own military defeat and abdication in June of that year (when Captain William Blacketer ‘wes drawin backward in ane cairte from the tolbuith to the crosse, and ther wes hangit and quartred, for being on the King’s murther’³⁷), and then her imprisonment, defeat, and ﬂight to England in May 1568—also a plague year. The Devil was invoked at a speciﬁc period when established authority collapsed. Legal differences help to explain the absence. Because it was easy to prove suicide and because intention was unimportant in preliminary investigations compared with England, there was less need to look for either proximate or ultimate causes; in applications for donations of escheats the only requirement was to admit wrongdoing. A legal system which required high levels of proof in criminal trials was also less likely to attribute suicide to the Devil than one where standards of proof were vaguer. In English law the agency of the Devil might be presumed or posited, because his standing as a legal actor was low. The difference between Scotland and England is not that one was more secular than the other, but that their legal systems were different. In Scotland, legally constitutive phrases stressed that wrongdoing came out of a person’s omission of God (and thus from a personal failing), rather than a commission to (or by) the Devil. When the ‘instigation . . . of the Devill her maister’ was mentioned in a witchcraft charge against Marjorie Mutch in 1597 it carried precise legal meaning rather than being a stock term of art.³⁸ Standards of proof were rising after the Restoration and ideas about evidential certainty and procedural regularity too, as understandings of ‘substance, causality and agency’ developed.³⁹ Thus the jurist Fountainhall could distinguish between the sources of the insights claimed by a young witchﬁnder who called herself Janet Douglas: if hir knowledge be so strange as it’s reported to be, it’s just she tell whence shee hes it; if it be an unvoluntar possession, or by a spirit’s frequenting of hir, or by the second sight without a paction [with the devil], it can never be made criminal: it’s her misfortune, to ³⁶ ‘The diarey of Robert Birrel’, 12. ³⁷ Ibid., 10–11. ³⁸ Mair, Records of Ellon, 42. ³⁹ C. Jackson, Restoration Scotland, 1660–1690: Royalist politics, religion and ideas (Woodbridge, 2003), 189. The laws and customs of Scotland in matters criminal, II.XXIV.II, noted that courts should seek additional proof if an accused person’s confession was thought to show ‘any aversion for life tædium vitae, or any signs of distraction, or madnesse’. RPCS I, 243.

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be prayed and fasted against, but not her guilt, no more than ane infant or madman are punished; nam satis ipso furore punitur, sayes the law.⁴⁰

Fountainhall allowed for unwanted possession or a freak of nature, demanding instead proof that the powers came from a conscious pact with the Devil before condoning punishment. Contrast his easier invocation of the Devil when writing of three suicides in November 1682: ‘some persons inhappily were so far seduced by Satan with us, that they became their oune bourreaus [hangmen] and executioners . . . which are bad omens and prognosticks’.⁴¹ Fountainhall may have been paraphrasing a comment made by James VI in a letter of January 1592. Also suggesting that Satan had prevailed in the political sphere by fomenting treason, the king wrote how: ‘some of our maist unnatural subjectis being led be the abhominable authour . . . hes adventured so farre . . . as to be burreaux and executouris of thair cruell desseingis [designs]’.⁴² Both may have come from Andreas Celichius, a Magdeburg theologian, who said the same in 1578.⁴³ Whatever its origin, Fountainhall’s casual invocation was very different from his treatment of the Devil as a legal actor. This explains why he looked for demonstration of paction. It also justiﬁes the failure of defences in capital crimes (here the murder of children) like those of Agnes Johnstoun (1674), who ‘was sometimes possessed with a spirit which did draw her neck together’ and ‘tempted her several times to put down her self’, and Agnes Crockat (1756), who claimed ‘it was the devil that made her do it’.⁴⁴ The few detailed examinations that have survived of Scottish witnesses in judicial hearings about suicide make no mention of the Devil, though some dealt in other forms of supernatural belief alluded to by Fountainhall. A ﬁfteenth-century reference to spirits that looks superﬁcially like a diabolical allusion comes from an entry in a protocol book. Dated 1480, the document is a notarial attestation by the mother of a drowned man ﬂeeing from James Nory of Tarbat (‘profugi ab eo’), who must have been a judicial ofﬁcer. In the published summary the woman is reported as declaring publicly ‘that, out of the instigation of a malign spirit and great shamefastness, the said man drowned himself in ⁴⁰ Laing, Historical notices, vol. 1, 144. For a full account of the case see R. L. Harris, ‘Janet Douglas and the witches of Pollock: The background of scepticism in Scotland in the 1670s’, in S. R. McKenna (ed.), Selected essays on Scottish language and literature (Lampeter, 1992), 97–124. ⁴¹ Historical observes of memorable occurrents in church and state, from October 1680 to April 1686. By Sir John Lauder of Fountainhall (Edinburgh, 1840), 83. The same three are mentioned in R. Law, Memorialls: or, the memorable things that fell out within this Island of Brittain from 1638 to 1684 ed. C. K. Sharpe (Edinburgh, 1818), 237. ⁴² A. I. Cameron, The Warrender papers 2 vols (Edinburgh, 1931–2), vol. 2, 168. There is a similar passage, without diabolical allusion, in R. Burton, The anatomy of melancholy (1621) ed. T. C. Faulkner, N. K. Kiessling and R. L. Blair, 3 vols. (Oxford, 1989–94), vol. 1, 432. ⁴³ Quoted in Lederer, ‘Dishonorable dead’, 354. ⁴⁴ NAS JC2/14, 19 February 1674. JC3/30, 23 July 1756. For an example from 1561, see Pitcairn, Criminal trials, vol. 1, 415. The accused was convicted of theft. Walker, A legal history of Scotland, vol. 3, 459.

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the water of Teth [Stirlings.] and not through any fault of the said James’.⁴⁵ The original states that the man died ‘ex instigacione maligni spiritus et ex magna vereciddia seipsum demersit in aqua’.⁴⁶ Like Agnes Johnstoun, the mother might have meant the Devil, but she did not say so, and the wording ﬁts better with understanding of spirits more generally, rather than with a particularly evil one. The purpose of the document was to exonerate Nory and, from a legal point of view, assigning the death to an evil spirit and the dead man’s personal failing (a great sense of shame) distanced it from the ofﬁcial (and the family). What mattered legally was that no charge was being brought, allowing latitude in expression. The document blends a ‘spiritual’ or supernatural and an emotional or natural cause, reminding us that the categories were not exclusive, even in the Middle Ages.⁴⁷ Similarly, when Jonet Boyman reported in 1572 that the sight of ‘ane blast of evill wind’ or a ‘quhirll wind’ or ‘the wind with a thing like ane hatt & it quhirland about’ (indicating ‘ane evill spreit or ane war thing neir hand’) had caused ‘ane honest woman’ of Newbattle to hang herself, she appealed to a long-established Scottish belief in fairies (which travelled on whirlwinds) and evil spirits rather than to the new diabolical creed peddled by lawyers and scholars.⁴⁸ A different, but no more diabolical super-nature becomes evident in the case of John ban McFarlane from Argyllshire, whose widow and children were pursued by the duke of Argyll in 1722 to surrender his assets after he drowned himself. In a statement, one of John’s servants said he had been told by the dead man’s wife that he had asked her the night before he drowned himself ‘if they had seen any dreams of him in the house’? She reported that her daughter said that ‘she had dreamed that she saw a boat drawn up near’ the house, but the mother retorted ‘that was only the death of ane old wife that was sick in town’.⁴⁹ Pervasive in Highland (and possibly Lowland) folk culture, belief in second sight (a prophetic vision while awake) and the monitory power of dreams had a supernatural basis: deaths and funerals were the things most commonly foreseen.⁵⁰ However, prophetic visualization of events was not explicitly diabolical in the McFarlane case, and most contemporaries saw it as a spiritual gift from God or an hereditary endowment, which could predict outcomes rather than causes. Only sometimes were dreams demonic invasions. The alternative contemporary interpretation ⁴⁵ Renwick (ed.), Extracts . . . Stirling . . . 1667 –1752, 374. The transcript of this document in the ‘table of contents’ accompanying the original states only that an ‘evil spirit’ was to blame. ⁴⁶ NAS B66/1/1/1, Protocol Book of Sir James Darrow, p. 263. ⁴⁷ Murray, Suicide, vol. 2, 426–51. ⁴⁸ NAS JC26/1/67, Jonet Boyman (1572). Larner, Enemies of God , 147. J. Wormald, ‘The witches, the devil and the king’, in T. Brotherstone and D. Ditchburn (eds), Freedom and authority: Scotland, c.1050–c.1650 (East Linton, 2000), 171, disagrees, saying that Satan is meant. For other examples of the evil wind in witchcraft cases (1576, 1590–1) see Pitcairn, Criminal trials, vol. 1, 53, 233. ⁴⁹ NAS SC54/17/2/47/1. ⁵⁰ Michael, ‘Suicides in Wales, 44, ﬁnds comparable beliefs there.

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of dreaming (and the later orthodoxy) was to conceive of it as a way of understanding oneself (including as a sign of mental or corporeal pathology), changing the temporal focus from the future to the past and present.⁵¹ This statement about dreams was used in the case to demonstrate that McFarlane was contemplating suicide and seeking some sort of sanction for his intention. The rest of the content of the examinations follows the same line, but it is much more worldly, focusing on the impact of his ﬁnancial worries, on his health and disposition, and on a statement he was said to have made the day before his death to the effect ‘that it was better for him to be out of the world than in it because he could not satisﬁe his creditors’. When ordinary Scots sought supernatural understandings they relied on beliefs in spirits rather than the Devil. Diabolical agency was invoked selectively in criminal cases, best exempliﬁed in cases of suicidal witches, for where paction was proven the Devil could be everywhere. At Haddington late in 1634, Anna Tait, spouse of a miller called William Johnstoun, was ‘thrie times deprehendit putting violent hands to herself at her awne house’, using her own ‘courch’ or head-dress.⁵² She was imprisoned in the tolbooth of Haddington on 18 December to stop her killing herself, but she persisted and cut her own throat. Asked why she had done this, she told of intolerable trouble of mind caused by feelings of guilt about the murder of her husband and daughter. She also spoke of consultations with the Devil about how to kill them and of copulation with him. When her hands were bound and her feet put in stocks to restrain her, she still tried relentlessly to harm herself through ‘devilishe designes’. However, the mention of the Devil was because she was indicted for witchcraft. Her immediate desire for suicide was attributed to ‘bein so trublit in conscienc for thes yor devillysh practises and fear of schame of the samen sould come to licht & be reveallit’. Later attempts in gaol were attributed to fear of ‘any more schamfull death’—though Anna hardly made any attempt to defend herself at trial against such a prospect.⁵³ In Anna’s case the link between the Devil and suicide was forged by her proven witchcraft. In circumstances where proof was lacking, the Devil could be invoked ⁵¹ A collection of rare and curious tracts on witchcraft and second sight (Edinburgh, 1820). J. G. Campbell, Witchcraft & second sight in the Highlands and Islands of Scotland (Glasgow, 1902), 109–19, 150–1, 155–8. Thomas, Religion and the decline of magic, 128–32. M. Hunter, ‘The discovery of second sight in late 17th-century Scotland’, History Today 51, 6 (2001), 48–53. A. J. L. Bust, ‘Scottish second sight: The rise and fall of a European myth’, European Romantic Review 5 (1995), 149–77. S. A. Cohn, ‘A historical review of second sight: The collectors, their accounts and ideas’, Scottish Studies 33 (1999), 146–85. P. Crawford, ‘Women’s dreams in early modern England’, History Workshop Journal 49 (2000), 129–41. A. R. Ekirch, ‘Sleep we have lost: Pre-industrial slumber in the British Isles’, AHR 106 (2001), 374–83. S. L. Manning, ‘Enlightenment’s dark dreams: Two ﬁctions of Henry Mackenzie and Charles Brockden Brown’, Eighteenth-Century Life 21 (1997), 39–56. Manning persistently writes of ‘demonological explanation’ when she seems to mean ‘spiritual’. L. Dacome, ‘ ‘‘To what purpose does it think?’’: Dreams, sick bodies and confused minds in the age of reason’, History of Psychiatry 15 (2004), 395–416. ⁵² NAS B30/10/13, ff. 24–26v, at f. 24v. NLS Adv.Ms.31.3.10, f. 102v. ⁵³ NAS B30/10/13, f. 24v.

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metaphorically without having any special signiﬁcance. An example comes from Stirling burgh court in a case of assault and slander brought in 1545 by Elspeth Mukkart against her servant, Katherine Jack. On the latter count, Elspeth claimed Katherine had used ‘ewill langage, calland hir commoun huir [whore] and theiff that hes lynin this nyne yeir in the devillis armis with ane other wifﬁs husband’.⁵⁴ A later example shows a similarly metaphorical attribution of malignant forces. Rev. James Bell refused to believe Philip Standsﬁeld’s claims that his father’s melancholy prompted him to commit suicide: ‘I inclin’d to think it was a violent murder committed by wicked spirits’.⁵⁵ By this the minister meant not that the Devil prompted Sir James to kill himself, but that he suspected another person’s hand in the death. Meanings were seldom literal. There are, nevertheless, examples where the Devil was given agency. Of Margaret Kirkwood, who hanged herself in 1677 while under investigation for witchcraft, Fountainhall wrote: ‘some say shee was so strangled by the devill and witches’.⁵⁶ A similar point was made about a warlock, John Reid, who hanged himself in Renfrew tolbooth in 1697.⁵⁷ These examples echo Martin Luther, who thought that the Devil could be an assassin, acting ‘directly and immediately’ to bring about a death ‘in the same way that a traveller is killed by a brigand’.⁵⁸ ‘It is very certain that, as to all persons who have hanged themselves, or killed themselves in any other way, ‘tis the devil who has put the cord round their necks, or the knife to their throats.’⁵⁹ Luther thought that suicide should be strictly punished by civil magistrates as a deterrent and a way of stemming the rising tide of demonic activity, but he also thought that it could be right for a pastor to give normal burial to a woman who killed herself if she was a murder-victim of the Devil.⁶⁰ In this scheme of thinking, the Devil could be an external agent or an invited helper able to act physically. Yet the Devil’s agency was not to be found in all suicides, only those where ‘it is evident that the suicide has not taken place naturally’. Nor was theological writing predisposed to present him in physical manifestations.⁶¹ Luther explained the circumstances where the Devil had deceived people into believing they were doing something else with examples of mysterious circumstances ‘when all you ﬁnd is a rope, a girdle or . . . a veil hanging without any knot whatever, wherein you could suspend a ﬂy’.⁶² ⁵⁴ Renwick (ed.), Extracts . . . Stirling . . . 1519 –1666 , 40. ⁵⁵ The tryall of Philip Standsﬁeld, son to Sir James Standsﬁeld, of New-milns, for the murther of his father, and other crimes libell’d against him, Feb. 7. 1688 (Edinburgh, 1688), 21. ⁵⁶ Laing, Historical notices, vol. 1, 144. NAS PS3/3, 138. ⁵⁷ Black, Paisley, 129. ⁵⁸ M. Michelet, The life of Luther, written by himself translated by W. Hazlitt (London, 1846), 320. ⁵⁹ W. Hazlitt (ed.), The table talk of Martin Luther (London, 1857), 254. ⁶⁰ Michelet, Life of Luther, 320. ⁶¹ N. Johnstone, ‘The Protestant devil: The experience of temptation in early modern England’, JBS 43 (2004), 185–91. ⁶² Michelet, Life of Luther, 320.

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The way early modern Scots referred to the Devil was as selective as Luther intended, but not as literal because they needed a pre-existing connection and unusual circumstances. Thus, John Stewart, a man with a history of conjuring and associating with fairies, as well as a substantiated charge of witchcraft against him, was described as someone ‘who, by the help of the devil his master, had put violent hand to himself’ in Irvine gaol in 1618. What had to be explained was how he managed to do so despite (as he claimed while still alive) being ‘so straitly guarded, that it lies not in my power to get my hand to take off my bonnet, nor to get bread to my mouth’.⁶³ This interpretation was offered because Stewart had the reputation of a wizard and because of the puzzling circumstances surrounding his end, rather than as a stock attribution drawn from a supernatural ‘habitus’ . Pierre Bourdieu distinguishes between this, a form of socialized subjectivity shaping responses to situations (also understandable as ‘custom’, ‘disposition’ or ‘context’), from ‘practices’ or actions.⁶⁴ John Pocock calls these respectively ‘mentalit´es’ —habits of mind bred by education and practice that are relatively insensitive to historical settings and which change only slowly—and ‘moves’ or contestable assertions made by an historical actor in a speciﬁc circumstance and for identiﬁable reasons framed in a particular context.⁶⁵ People act within structures or matrices of perception or ‘strategygenerating principles’, which allow scope for strategies and experiences to be realized through practice. The same search for reasons in a person’s own history and circumstances informed the brothers and sisters of Robert, earl of Lothian, when in 1624 they attributed his suicide to the malice of witches.⁶⁶ Once more this was no random or routine association. The Devil’s work was only one of a suite of explanations of the suicide of the earl of Lothian, one of Scotland’s most prominent Jacobean noblemen and a member of the Privy Council. According to Calderwood: Upon Satterday, the 6th of Marche, Sir Robert Ker, Earle of Lothian, went up earlie in the morning to a chamber in the Place of Newbottle, pretending he was gone to lay accounts and write missives, and commandit that none come toward him for an houre. He barreth the chamber doore, and cutted his owne throat with a knife, efter he had given himself sundrie wounds with his dagger. Some imputed this desperate course to his great debts which were lying on his hands, others to consulting with magicians and witches.⁶⁷ ⁶³ W. Scott, Letters on demonology and witchcraft, addressed to J. G. Lockhart, esq. (London, 1830), 323. Scott said he was quoting from a trial transcript. Trial, confession and execution of I. Inch, J. Stewart, M. Barclay and I. Crawford, for witchcraft, at Irvine, Anno 1618. From the original manuscript (Ardrossan, [1855]). ⁶⁴ P. Bourdieu, The logic of practice translated by R. Nice (Cambridge, 1990), 52–3. ⁶⁵ J. G. A. Pocock, The ancient constitution and the feudal law . . . a reissue with a retrospect (Cambridge, 1987), 262. Sacks, ‘Promise and contract’, 37–41. ⁶⁶ RPCS XIII, 453n. RPCS 2nd series II, 442, 624. ⁶⁷ Calderwood’s History, vol. 7, 595–6. NAS E2/49, 19 June 1624.

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While at university in Italy, both the ﬁrst earl, Mark, and the second, Robert, had allegedly dabbled in intellectually fashionable studies of the occult, and it was thought the father’s death in 1609 had also been caused by witches (including his wife). Interpretations were both natural and supernatural, for Lothian had troubles aplenty in the material world. The Register of the Privy Council of Scotland for the early 1620s contains frequent entries to the tangled state of his ﬁnancial affairs, notably in dealings with the Kerrs of Jedburgh (speciﬁcally Andrew, Lord Jedburgh, and later Sir John Kerr and his sons), whom he had tried to help out in 1622.⁶⁸ Blaming witches could be a means of explaining misfortune by assigning responsibility to an external agency, rather than dwelling on potentially negative internal explanations. One way in which suicides complicated relations between the bereaved and their community was by inviting survivors to apportion blame. Invoking the inﬂuence of the Devil or a spirit may have displaced blame, and indeed Frederick Valletta suggests that ‘the cathartic effect of such an explanation of suicide may have been an essential part of the mourning process’.⁶⁹ Yet the evidence points to a greater selectivity in assigning causation than this simple psychologizing suggests. Indeed, recent work on Scotland (and Germany) has warned against seeing the Devil as an automatic oppositional ﬁgure, and against accepting that his role can be treated in functionalist (Freudian?) terms as an easy way of projecting blame.⁷⁰ Invoking the Devil could indeed be reﬂexive: a way of expressing contrition for having been duped when Satan manifested ‘his great craft in deseaving of christien people’, rather than shifting blame or seeking to diminish responsibility.⁷¹ Accused of witchcraft at Alloa in 1659, Barbara Erskine confessed in the presence of magistrates. She declared that when shoe was delatted for [formally charged with being] a witch the Devill came to hir and would have drowned hir self hir to drowne hir self in the Watter of Doven, quhairunto shoe did consent and did goe to the watter and the Devill did goe in ﬁrst and shoe after him, and plunged lyk a dog besyd hir in the watter, but shoe wan to the dry land againe by the help of William Miller in Cambus who did rescue hir.⁷² ⁶⁸ RPCS XIII, 453. There was also speculation about a domestic scandal because of the conduct of his wife. Ibid., ix. ⁶⁹ F. Valletta, Witchcraft, magic and superstition in England, 1640 –70 (Aldershot, 2000), 40. ⁷⁰ Johnstone, ‘Protestant devil’, 177–8, 205. Seabourne and Seabourne, ‘Law on suicide’, 32–4. H. C. E. Midelfort, A history of madness in sixteenth-century Germany (Stanford, 1999), 309, reports that the Devil was explicitly involved in just 8 of 48 sixteenth-century German miracle cures. Satan played no role in suicidal attempts in this source. Ibid., 310. G. Signori, Trauer, Verzweiﬂung und Anfechtung: Selbstmord und Selbstmordversuche in sp¨atmittelalterlichen und fr¨uhneuzeitlichen Gesellschaften (T¨ubingen, 1994), 18. ⁷¹ [J. Colville], The historie and life of King James the sext, written towards the latter part of the sixteenth century (Edinburgh, 1804), 241. ⁷² BL Egerton MS 2879, ff.4–4v. I owe this reference to Julian Goodare.

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By confessing that she had willingly given in to diabolical inﬂuence, Barbara showed her responsibility for the act, while her saviour attested to the fact, of attempted suicide. She was already embroiled in charges of witchcraft that sometimes involved a link with the Devil, yet the association was no more automatic than with suicide. Recent research on Scottish witchcraft has suggested that popular witch beliefs were less dependent on diabolical intervention than Scots law’s emphasis might suggest. A study of Fife, one of the most proliﬁc areas of Scottish witch hunting, ﬁnds the Devil referred to in just a ﬁfth of cases, and some of these are ambiguous, possibly resulting from belief in fairies.⁷³ Nor were the clergy any more interested and, from analysis of Kirk Session and Presbytery records, Stuart MacDonald concludes: ‘Discipline, not diabolism, was the concern.’⁷⁴ Work on Dumfries and Galloway too shows that the Devil played only a small part in witchcraft accusations there.⁷⁵ In contrast, when lawyers and intellectuals became involved, as they often did in centrally tried witchcraft cases, the diabolic element became more prominent.⁷⁶ In short, Scottish legal sources rarely mention the Devil in connection with suicide (or any other wrongdoing) because Scots law was different from English, not because Scotland was a more secular country. For their part, Scottish suicides did not need to act at the instigation of the Devil. The act of taking their own lives was sufﬁciently ungodly, unnatural, impious, unworthy, desperate, and unlawful: all words used in contemporary documents. Whether Satan’s temptation was held to be the ultimate cause of despair, the most commonly stated proximate reason for suicide was a wrongful personal choice. If invoked at all, the Devil was used selectively, and in combination with other material or emotional explanations for self-murder, even by clergy. Furthermore, references were contextually related. People meant different things when they cited Satan: he could be an actor, a metaphor, or the ultimate source of evil. His invocation came out of a habitus, but was realized selectively as a complex set of practices with many different ends. ⁷³ S. MacDonald, ‘In search of the Devil in Fife witchcraft cases, 1560–1705’, in J. Goodare (ed.), The Scottish witch-hunt in context (Manchester, 2002), 33–50. L. Henderson and E. J. Cowan, Scottish fairy belief: A history (East Linton, 2001), 127–9. J. Sharpe, ‘The witch’s familiar in Elizabethan England’, in Bernard and Gunn (eds), Authority and consent, 219–32, sees familiars, which were considerably more important to (southern) English witchcraft beliefs than Scottish (or northern English or Welsh) as diabolical intermediaries; he posits a connection between fairy lore and learned magic. ⁷⁴ S. MacDonald, The witches of Fife: Witch-hunting in a Scottish shire, 1560 –1710 (East Linton, 2002), 196. ⁷⁵ L. Henderson, ‘The survival of witchcraft prosecutions and witch belief in south-west Scotland’, SHR 85 (2006), 52–74. ⁷⁶ L. Martin, ‘The Devil and the domestic: Witchcraft, quarrels and women’s work in Scotland’, in Goodare (ed.), Scottish witch-hunt, 73–89.

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6 . 3 T H E S T R AT E G I C VA LU E O F S U I C I D E AS A POLITICAL AND RELIGIOUS EXEMPLAR I N S C OT L A N D Scottish clergy saw suicide as an experiential matter, an indicator of social and religious problems in the individual and the community. It was also a strategic token in negotiating political advantage for the reformed faith. Even the most private event could have a very public face and potentially enduring value in the continuing competition with Catholicism and even between rival brands of Protestantism. The body of an attempted or successful suicide ‘can serve as a direct political symbol, or at least as an object on which political beliefs and activities can be focused and energised’.⁷⁷ As Peter Lake has written of early Stuart murder pamphlets, clergy and others sought ‘to gloss, exploit, codify certain pre-existing and free-ﬂoating notions about the world, God, sin and the Devil and to enlist them for their own vision of true religion’.⁷⁸ Narratives of suicides were also tools in that search. The political dimensions of spirituality are clear in the prolonged, self-inﬂicted death of Mr John Chalmer or Chalmers, minister at Keith (Banffs.), in 1611.⁷⁹ On 4 June he celebrated a marriage, shut himself in his room and stabbed himself twice in the throat. With the second blow he cut his ‘wesand’, but ‘by the providence of God, his thropple [windpipe] was spaired’. He was found by some gentlemen of the parish, who had to break down his barred door. ‘When they went in, they ﬁnd him sitting on his knees, and his hands lifted up to heaven; but he was not able for a space to speake by reasone of his weaknes, caused through the great effusion of his blood.’⁸⁰ Still living, he was visited next day by the Marquis of Huntly, who ‘questioned him upon manie things, but speciallie, if he was brought in doubt of his religion by reiding of the doctors; for he alledgit, that manie of our profession, through reiding of the doctors, were moved to doubt’.⁸¹ This was George Gordon, ﬁrst marquis and sixth earl of Huntly, a Catholic alleged to be a conspirator and a murderer, who was saved more than once in the 1590s and 1600s by his friendship with James VI. What Huntly wanted to hear was that Chalmers’ Calvinist beliefs had been weakened. His reference was to the ‘Aberdeen Doctors’, who in the early seventeenth century maintained a strong interest in patristic scholarship and medieval philosophy that undermined Covenanting.⁸² Chalmers denied the charge: for those of his ⁷⁷ Prior, Social organization of death, 197. J. Merrick, ‘Suicide and politics in pre-revolutionary France’, Eighteenth-Century Life 30 (2006), 32–47. ⁷⁸ Lake, ‘Deeds against nature’, 283. ⁷⁹ Calderwood’s History, vol. 7, 160–3. ⁸⁰ Ibid., 160. ⁸¹ Idem. ⁸² C. Kidd, ‘The ideological signiﬁcance of Scottish Jacobite Latinity’, in J. Black and J. Gregory (eds), Culture, politics and society in Britain, 1660 –1800 (Manchester, 1991), 115.

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religious turn, doubt and despair were a normal part of spiritual development (see 6.4). Chalmers and those around him spoke of his own condition, but they had constantly to attend to the broader ideological position and political needs of their church, in a region dominated by a powerful Catholic earl.⁸³ Presbyterians close to Chalmers sought to square a circle that John Foxe had drawn in the 1560s: ‘No man is able to bring forth an one example . . . of an . . . true gospeller, that either killed himself or showed forth any signiﬁcation or appearance of despair.’⁸⁴ Thus he became a sort of living suicide note as his lingering death allowed public expression, explanation, and self-justiﬁcation.⁸⁵ Both in notes and in living testimonies the fatally injured created a version of their life and the reason for their death that they wanted survivors to accept. Attempted drowning or serious blood loss might give the dying some hours or even days to contemplate their fate, share their thoughts with those around them, and make their peace with God. One might almost see a note or testimony as a substitute for that part of a ‘good death’, denied by suicides to themselves, which was the process of separation on the deathbed and before.⁸⁶ Not exactly a suicide note, for he probably expected to survive, Chalmers’ profession (or ‘confession’) on 4 June makes remarkable reading. Publicly, as narrated by Mr William Gordoun, Chalmers dwelt on religious issues. I, Mr Johne Chalmers, grants and confesses my manifold sinnes, whairin God left me for a tyme to the tentations of Sathan, who in a great measure wrought against me, and brought me to the attempting of this unnaturall fact against myself. And yet, in the verie meantyme, the power of God and the Spirit of Jesus Chryst so prevailed in me against him, that God not onlie withdrew me from the fact, and spared me for a tyme, but also in my greatest inﬁrmitie and mids of my paine, has shawen his mervellous power and strength in releiving me from Sathan, and giving me ﬁnall end and victorie over Sathan, the world, and the ﬂeshe; and has restored me to the sight of his mercie in the onlie blude of Jesus Chryst, and so pacifyed my troubled conscience, that now I ﬁnd my onlie joy and felicitie to stand in the sight and presence of God, through the onlie mercie of Jesus Chryst; and awaits onlie the resolution of my bodie from my soule for the possession and inheritance of that glorie eternall whereof the Holie Spirit gives me full assurance. Farther, I confes, that I had never anie trouble in my conscience concerning the truthe of religion, which I ever publictlie professed and preached, save onlie that I was not so faithfull in my ministrie as I ought. I acknowledge the religion presentlie professed in this land to be that undoubted truthe of God, groundit upon his Word, written in the books of Old and New Testament; and to be that true worship of God, onlie acceptable to him, and brings salvation to man by Jesus Christ. I abhorre and detest all merits of man as helpfull to salvation; all doctrines invented by man besyde the written Word. I confes, the cheefe and onlie mater of my tentation whereupon Sathan wrought, to have been over great love of the world, and excessive cares thereof beguyling and blinding ⁸³ P. G. Maxwell-Stewart, ‘Witchcraft and the kirk in Aberdeenshire, 1596–97’, Northern Scotland 18 (1998), 1–14. ⁸⁴ Quoted in Minois, History of suicide, 73. ⁸⁵ Bailey, Rash act, 56. ⁸⁶ Houlbrooke, Death, 147–82.

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me, as though I had noe cares thereof where I had over much; which now I detest as dung, in respect of that excellent and exceeding great riches which now I ﬁnd in Jesus Chryst. Requeisting also the faithfull ministers of the Gospell by my exemple to leave the cares of the world, setting themselfs on the Word of God, continuallie and faithfullie preaching the Word, and stryving for themselfs and the people against Sathan, whose cheefe tentation is to stoppe the mouths of preachers: which in presence of God I testiﬁe by this my subscription before thir witnesses undersubscrybing.⁸⁷

Chalmers was conscious (or made aware) that what he had done had signiﬁcant ramiﬁcations at a time when the Presbyterian church was still asserting itself in a region where Episcopalianism (and indeed Catholicism) were strong. Narrator Gordoun was at pains to note that Chalmers never profaned the Lord’s name, ‘albeit he found not such confort in God as he wont to have’, and always gloriﬁed Him.⁸⁸ Chalmers did not die until Monday 10 June, after passing in and out of consciousness, and losing, then regaining, the power of speech. Two days after his attempt members of the presbytery met in Chalmers’ house. To his fellow ministers he confessed his deed, showed repentance and asked forgiveness, which they gave. ‘Then he confessed, that the ﬁrst advantage Sathan obtained over him was by making excuses for not keiping the presbyteries and other conventions necessarie: Nixt, that he tooke a conceate of his owne inabilitie to teach, and so left of teaching: Thirdlie, that he disdained prayer. That lying in this estate, he could never have grace to take up himself till he interprysed this wicked fact.’⁸⁹ On Friday he made his will. Just prior to his death he was said to have listened to psalms, to have prayed and heard prayer. At the moment of his death he held up his hands, as if to his maker. Chalmers and those who survived him were clear that he died not in deﬁance of God, but at peace with Him. However, when the death came to be minuted in Exchequer records the tone had changed to suit the needs of obtaining a signature. The document tells of the minister’s ‘unnaturall and shamefull putting of hand in him self and cutting of his awin throat’.⁹⁰ Terse as the entry is, it shows that recorded understandings of suicide could vary considerably, according to context, purpose, and observer. The case demonstrates more generally that an intimate personal tragedy had a very political and public face. Privately, the narrator states, Chalmers confessed ‘that he was unable to doe his duetie to his wife, which was a great greefe to him’.⁹¹ Viewed from the other side of the religious divide, Catholics could use suicide to claim that their faith offered the best path to mental and spiritual health. Prefect William Ballentine’s account of his mission to Cairnborrow and Colachie mentions the case of three women, one of whom had being trying to hang herself for ﬁve years and two others had been ‘falsely persuaded that they were possessed by the devil’. Their minister had told them that without public acknowledgement he could offer them no consolation. After a period of being watched night and ⁸⁷ Calderwood’s History, vol. 7, 162–3. ⁸⁸ Ibid., 163. ⁸⁹ Ibid., 161. ⁹⁰ NAS E2/29, 17 June 1611. ⁹¹ Calderwood’s History, vol. 7, 162.

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day by their families, these potential suicides were advised to try the Catholic remedy of penance. Thus ‘by a remarkable Divine providence’, one of the women encountered Ballentine and after ‘speaking to her in a very gentle and friendly way . . . [s]he at once fell on her knees and would not wait for further instruction or sacramental absolution, but made a full extra-sacramental manifestation of conscience. Then, having been instructed fully in our faith, she was, with the greatest peace of mind, fully restored to health’.⁹² Catholicism was trying to revive itself with the help of missionaries like Ballentine, and Presbyterianism was establishing itself when Chalmers died. Within a century, Scottish Protestantism had developed deep ﬁssures between those who accepted or rejected the inﬂuence of secular powers on the Kirk. Understandings of suicide were shaped to suit the new alignments, and examples were collected in the new histories of the Kirk compiled in the century after the Restoration. An example is Mr Edward Thomson, minister at Anstruther Easter in Fife, who ‘put violent hand in and unnaturally murthered himself and taken away his own lyfe by throwing himself in a deep pott or linn off the burn of Anstruther under the bridge thereof where he perished’ on 20 December 1685.⁹³ After the death of his wife of ten years he became ‘very sad and heavy’. Returning late after a pastoral visit on 19 December, ‘the wench that bare his lanthron, as they past a bridge, afﬁrmed the bridge trembled and shoke, also that she saw something like a black beast pass the bridge before him. This made some suspect he medled with the devil, and he was known to have a brother that was a diabolick man’.⁹⁴ The next morning he threw himself into the river Dreel ‘to the great astonishment of his poor neighbours’. Engaging as this tale is, it was written by a Covenanter, James Kirkton, who prefaced his story with an account of how, after a godly upbringing within the faith (including the best of all possible educations at St Andrews University), Thomson had been perverted from Presbyterianism in 1677 by hope of gain and had ended his days as an Episcopalian minister. A hint of darkness suited Kirkton’s purpose, for the voluntary death of others was used to show divine approbation for his own faith. Framed to gain religious and political capital, these narratives were grounded in somatic and social ideas of the causes of self-murder. Their greatest collector and disseminator, ecclesiastical historian Rev. Robert Wodrow, recounted the case of a godly man led into error, noting that ‘his temper is melancholick, and soe Satan the easier wrought him into confusion’.⁹⁵ Mr John McKain or ⁹² W. J. Anderson, ‘Narratives of the Scottish Reformation III: Prefect Ballentine’s report c.1660, part one’, Innes Review 8 (1957), 51. ⁹³ NAS PS3/4, 35. ⁹⁴ C. K. Sharpe (ed.), The secret and true history of the Church of Scotland, from the Restoration to the year 1678, by the Rev. Mr James Kirkton (Edinburgh, 1817), 188–9. ⁹⁵ Analecta: or materials for a history of remarkable providences; mostly relating to Scottish ministers and Christians. By the Rev. Robert Wodrow, minister of the gospel at Eastwood 4 vols. (Edinburgh, 1842–3), vol. 1, 63.

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MacKean, (Presbyterian) minister of Birnie, killed himself on 25 December 1703. According to a letter describing the event, he was found in his chamber hanged in his bridle with his hands tied behind his back and the door being bolted within. He had all his life been a man of unblameable life, very much inclined to melancholy and had some time before that communicated to some of his brethren that he was tempted to such a thing and being advised to earnest prayer, he answered that he had prayed till he was weary, but was not heard.⁹⁶

People might conduct an inner, psychomachic struggle with Satan and, those of a certain temperament might make it easier for him to gain purchase.⁹⁷ A similar mixing of the natural and supernatural is found in the Covenanting clergyman Robert Law’s account of ‘memorable things’ in Britain, 1638–84. He believed that self-murderers ‘are ordinarily tempted of the divill to it from either’ family (especially marital) discord; ‘fears of want and craking [failing] credit’, which ultimately involved ‘distrust of divine Providence’; and ‘From some horror of conscience aggreging their sin, and making them despair of mercy. Upon conference with severalls that have been tempted to this sin, I have found the temptation arise from these grounds; to say nothing of a sullen melancholyk humour that is natural to folk, which is dangerous where it abounds, if grace prevent not’.⁹⁸ Sins multiplied, for the Devil was always ready to exploit the human propensity to transgress. However, it was ultimately Christians’ responsibility if they lost the ﬁght, as Law and Wodrow made clear. Malcolm Gaskill believes that, during the eighteenth century, God and the Devil became more remote, and satanic inﬂuence increasingly attributed to evil inside.⁹⁹ Yet it was always the internal role of sin—the Devil within—that mattered to believers, and what they made of suicidal thoughts is discussed in the next section. 6 . 4 S U I C I D E , H O PE , A N D D E S PA I R : T H E S PI R I T UA L E X PE R I E N C E O F S C OT T I S H C A LV I N I S TS An extreme statement of the belief that choosing the wrong religion could cause suicide can be found in the Church of Scotland parish register of Mauchline in Ayrshire, where the clerk wrote in bold capitals: ‘Hugh Campbell, a Seceder, cut his own throat on 3rd January [1768].’¹⁰⁰ The opinion was hardly charitable ⁹⁶ NAS CH2/12/1244. ⁹⁷ L. Yeoman, ‘Archie’s invisible worlds discovered—spirituality, madness and Johnston of Wariston’s family’, Records of the Scottish Church History Society 27 (1997), 156–86. D. Harley, ‘Spiritual physic, providence and English medicine, 1560–1640’, in O. P. Grell and A. Cunningham (eds), Medicine and the Reformation (London, 1993), 101–17. ⁹⁸ Law, Memorialls, 100. ⁹⁹ Gaskill, Crime and mentalities, 296. ¹⁰⁰ Quoted in C. Rogers, Social life in Scotland 3 vols (Edinburgh, 1884), vol. 1, 169. Seceders had split from the Kirk over state interference.

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and the politicization of suicide seems inhumane, treating self-inﬂicted death as a token rather than a tragedy. This social and political, rather than spiritual, emphasis may partly explain why John Stachniewski condemns ‘the extent to which Calvinists could shield themselves with dogma from a decently human response to misery’.¹⁰¹ Yet in these politicized stories, and still more in both personal accounts of suicidal people and in the writings and sermons of the Scottish clergy there is a strongly positive side to the contemplation of selfmurder. Even Wodrow’s relentless quest for justiﬁcation contains nuanced understandings of the multiple reasons for self-murder, and the hope that could come from conquering suicidal thoughts. At one level the word of God was a valuable prophylactic against self-destructive thoughts. When Edinburgh landlady Beatrix Tailyer gave a short and shocked statement about the death of her lodger, Katherine Anderson, in February 1647, she twice mentioned Katherine’s Bible study: she had been reading the New Testament when Beatrix slipped out of the house, only to ﬁnd her lodger dead on her return.¹⁰² Katherine had been close to God and thus far from the Devil when she died. In fact, Beatrix puzzled over her lodger’s motivation, settling on a material rather than spiritual reason: the dead woman owed a former employer a large sum of money and faced a debtor’s prison. Cloaking Anderson’s purpose, private devotions were a central feature of Calvinist spiritual experience, and one of the few valid justiﬁcations for early modern individuals to be alone. A contingent and compromised ideal, privacy was more normally viewed askance as a cover for immoral or illegal acts: being alone gave an opportunity for those so inclined to take their own lives. Thus George Sinclair reported the late seventeenth-century case of Margaret Kirkwood, ‘a woman of good repute’ from Haddington, ‘who, before her death, took some trouble of mind’. Having hinted at an inclination to put hand to herself, she was attended and waited upon: But had her own liberty to retire herself to private prayer; in which exercise she was very frequent. Upon a Sabbath forenoon, when all were at church, and she at home, none with her save only a servant-maid, she went into some high room or other, as she was wont to do, to her devotion, and there, before the maid could know, she hanged herself.¹⁰³

Private devotions created both the context for thoughts and acts of selfdestruction, but also the opportunity to overcome temptation by allowing believers to distinguish between mental afﬂiction and spiritual trials. In June ¹⁰¹ J. Stachniewski, The persecutory imagination: English Puritanism and the literature of religious despair (Oxford, 1991), 47. ¹⁰² ECA Moses bundles 11, no. 452, item 23. ¹⁰³ G. Sinclair, Satans Invisible World discovered; or, a choice collection of modern relations, proving evidently against the Saducees and Atheists of this present age, that there are Devils, Spirits, Witches, and Apparitions (Edinburgh, 1789), 145.

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1691 Lilias Dunbar recorded how she ‘was made to consider whether or not my trouble proceeded partly from melancholy, or if it was a well-grounded spiritual exercise; and I found it was of a spiritual nature, and for spiritual causes. I was likewise made to remember that though my natural temper inclined to melancholy, yet my most cheerful and comfortable times were the times of my greatest outward troubles, and my most sorrowful times when I had most outward prosperity’.¹⁰⁴ In England, we are told, the clergy drummed home the message that suicide was utterly wrong. ‘Puritan writers’, claim MacDonald and Murphy, ‘published tract after tract, sermon after sermon, identifying suicidal despair as the work of the devil’.¹⁰⁵ One might note in passing that of English almoners, only Lancelot Andrewes left any writings about suicide (in his late-Elizabethan Pembroke catechetical lectures) and these focused on Augustine’s idea of communal responsibility rather than simply peddling perdition.¹⁰⁶ Furthermore, published English sermons were composed to display learning, not loathing. In stark contrast with English Puritans, Scottish sermons hardly touched upon suicide, just as Kirk Sessions almost never recorded formal interventions in cases of attempted suicide (see 5.2a).¹⁰⁷ When clergy mentioned suicide the condemnation was clear, but writers highlighted the positive as much as the negative from the contemplation of ending life. These omissions and emphases came out of dogma which paid limited attention to the Devil and hardly any to suicide. When she began the work that culminated in Enemies of God, Christina Larner found the area of theology and witchcraft unproﬁtable, and the theology of suicide is hardly more lucrative. It is not a special area, perhaps because the Bible is frequently ambivalent or neutral about it. Calvin himself had little to say, mentioning it in just two sermons.¹⁰⁸ Basing himself less on the Bible than on Augustine and Aquinas (and thus demonstrating continuity with Catholicism), he thought suicide unnatural—a blasphemous form of self-determination that showed a refusal to submit to God’s will—and closely linked to diabolical inﬂuence, which took away the desire for self-preservation. However, he was unconcerned with the theodicy of the Devil, and chose to focus on the experiential aspects of temptation for individual sinners.¹⁰⁹ Post-Reformation Scottish divines were sparing in their references. In his second sermon on the 76th psalm, the late sixteenth-century preacher, Robert Bruce, explained how God’s judgement was visited on his enemies. He caught ¹⁰⁴ Quoted in D. G. Mullan (ed.), Women’s life writing in early modern Scotland: Writing the evangelical self, c.1670 –1730 (Aldershot, 2003), 168–9. ¹⁰⁵ MacDonald and Murphy, Sleepless souls, 35. ¹⁰⁶ I owe this information to Peter McCullough. ¹⁰⁷ I have beneﬁted from discussions with Professor John McIntosh, Professor Jay Brown, and Professor Will Storrar about this puzzling absence. ¹⁰⁸ Watt, Choosing death, 67–80. ¹⁰⁹ Johnstone, ‘Protestant devil’, 179–80.

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them unawares then deprived them of their critical faculties, thus vitiating their discretion. For all the subtlety of the means of judgement, the ends were far from delicate. ‘He casteth them in sik ane anguish and blindness of mind, that neither they see God, who is the striker, nor yet see they any outgate, but they are casten in ane desperate estate and utter darkness remediless. These miserable men put violent hands in themselves, thinking that the soul quhilk now is in prison, as it were, will be in ane better estate gif it were outwith this body.’¹¹⁰ Jehovah punished by removing circumspection, but the sinner remained the person whose judgement had been so altered. For all their apparent rigour, Calvinists struggled as much as anyone to come to terms with suicide. They tried to help the suicidal and, when faced with self-murder, were sometimes hard put to ﬁt their ‘legalistic’ ethics to events with a situational content. The reason lies in Calvinist soteriology. The practical ambivalence of clerical attitudes to self-murder is most clearly demonstrated when clergy committed suicide, but it is also plain in commenting on real-life believers’ suicidal thoughts and in the narratives of conversion or redemption clergy constructed. One example, albeit fabricated to disguise foul play, offers a plausible and positive ﬁction about suicide and salvation. John Kello, minister of Spott in East Lothian, murdered his wife in 1570. The deed was pre-meditated and meticulously planned. Kello ‘spread abroad a rumour of her, that she was tempted terriblie in the night, that it might therafter appeare her self to have been the author and murtherer of her owne self ’.¹¹¹ After poisoning had failed, he strangled his wife with a towel then hung her up with a rope to make it look like suicide. He locked the house and slipped out the back to give a sermon, then made a show of returning with friends to ﬁnd a locked door. Once word of the apparent suicide was rife, Kello showed only concern for her soul. ‘I did faine myself onlie to be solicite for her salvatioun; and to dispute with them that came to comfort me, whether it were possible that she who had putt hands in her self could be under the protectioun of God; and whether anie man might suppose, that being under so terrible tentatioun, she could once sob for God’s merceis’.¹¹² After his conviction, Kello rationalized the greed and debt that led him to plan his wife’s murder as ‘the tentations of the enemie . . . the glistering promises wherewith Satan, after his accustomed maner, deluded my senses, and prevailed so in my corrupted mind’.¹¹³ Yet he also explicitly said he ‘never had anie ingresse in magick, nor was farther curious to understand, than God had manifested in His Word’ and that, because his faith was true, ‘he had assurance in God’s merceis, that albeit He had suffered him to fall, ¹¹⁰ Cunningham (ed.), Sermons by the Rev. Robert Bruce, 310. ¹¹¹ Calderwood’s History, vol. 3, 15. Calderwood’s account is based on The confessioun [o]f maister Iohn Kello minister of Spot, togidder with his ernist repentance maid vpon the scaffald befoir his suffering, the fourt day of October. 1570 (Edinburgh, 15[70]). ¹¹² Calderwood’s History, vol. 3, 16. ¹¹³ Ibid., vol. 3, 14.

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yitt he was not even destituted of confort to the end’.¹¹⁴ Kello distinguished between active involvement with the Devil and his role as a persistent tempter of all mankind. Dissimulatory as it was, Kello’s attempt to conﬁrm spiritual hope for his wife further shows that suicide and salvation were not necessarily incompatible. The suicide of a godly woman, reported at second hand by Robert Wodrow in the 1729 section of his Analecta, illustrates how the complex personal experiences of fervent believers were represented in Presbyterian publications. A sister of Mr John Colquhoun, minister at Drone, who was reconed religiouse and seriouse, many years ago, in Glasgou, fell under great straits and poverty, and the greatest penury for daily bread. She keept her circumstances secret; and under the continouance of her strait, and under the violent pouer of a violent tenantation, was at length hurried into self-murder, which she executed. I knou not the circumstances, but I believe it was by wounding herself mortally, so as she lived some hours. She sent for Mr J, Gray a litle before her death. She was very penitent for the fact, and narrated the whole circumstances, and asked his opinion if mercy was possible for her? He was in a strait, in so extraordinary a case; and, after safe general declarations to her, asked her her oun thoughts, ﬁnding her a person of considerable knouledge. She expressed great difﬁdence, without despair, and agravated her crime; and saif, she sau no place in the Scrip[ture] to build on but that, ‘I will have mercy on whom I will have mercy.’ Mr Gray prayed with her. In a little time she dyed. She appeared to him to be a humble seriouse Christian, and he had great hopes of her salvation.¹¹⁵

From despair and destruction came hopes of repentance and redemption as the minister offered ‘spiritual physicke’ to the troubled in mind.¹¹⁶ The detail of Miss Colquhon’s suicidal thoughts is lost, but another document that vividly illustrates the spiritual turmoil and overwhelming preoccupation with ending life among the suicidal is the autobiography of Mistress Rutherford.¹¹⁷ Recalling her early seventeenth-century childhood, she wrote of harbouring harmful thoughts against her sister before I began to weary of my life. Then I was tempted to put violent hands in myself. The tentation increased of wearying of my life that there was few hours in the day, yea few minutes, but I would think there is meikle of my life spent, and it’s nearer to an end than it was, and I knew not how soon it may please the Lord to call on me, why should I worry. This temptation continoued not still in this greatnes; I had some hours of breathings that the temptation left me for a season. When it came violently, I was forced to run to God by prayer to save me from doing of it, and to remove that thought from me, for then I knew it not to be a tentation, so great was my ignorance; but I[n] prayer I found no ¹¹⁴ Ibid., vol. 3, 13. ¹¹⁵ Analecta, vol. 4, 58. ¹¹⁶ K. L. Parker, ‘Richard Greenham’s ‘‘spiritual physicke’’: The comfort of afﬂicted consciences in Elizabethan pastoral care’, in K. J. Lualdi and A. T. Thayer (eds), Penitence in the age of reformations (Aldershot, 2000), 71–83. ¹¹⁷ D. G. Mullan, ‘Mistress Rutherford’s conversion narrative’, Miscellany of the Scottish Church History Society XIII (Edinburgh, 2004), 146–88.

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freedom, but was altogether deserted. Then I would reason with myself, If I do this thing I will never get mercy.¹¹⁸

Rutherford’s trials continued. She visited a fortune teller, later attributing this to ‘the malice of my enimie’, who brought her to superstition since he could not get her to end her life. Sometimes she sought out company to distract her; she got rid of her knives ‘for fear I should have done evil with them’; she dreaded ‘that they who once had an intention to do it would not escape the doing of it at length’.¹¹⁹ After a respite, the temptation indeed returned and ‘I took it to be a madnes or high spiritednes because it left me at sometimes. Such was my ignorance that I took it not to be temptation’.¹²⁰ She was preserved, ‘blessed be the Lord that has disappointed Satan’.¹²¹ The integration of thoughts of suicide into Calvinist conversion narratives indicates a degree of acceptance of the notion that people could contemplate self-murder, even if they were supposed to win through rather than succumb, for ‘God would have us stand and withstand’ .¹²² There was nothing wrong with some despair, for the transitional, constructive, or therapeutic sort advised by the godly was designed to help believers. Those who did not feel pain and doubt, who were not tempted, and who did not struggle with the Devil, were more likely to be damned than those who felt, recognized, fought and won. Even the ﬁnal stage of despair, to which the Devil beckoned all divided souls, was a brink to be examined closely for the insights it gave, but it was not to be crossed over.¹²³ For the early eighteenth-century minister, Thomas Halyburton, it was precisely at the moment when the sinner contemplated such an awful crime ‘then grace chooses to lay hold on him’. ‘When the candle of the Lord ﬁlls the bosom of a sinner with light, the ﬁrst sin that is seen is usually some great sin’ like self-murder.¹²⁴ The underlying problem was man’s disposition towards sin and his failure to confront it, but an egregious example could trigger awareness of the burden. The ubiquity of sin blurred distinctions and made killing oneself no worse than other manifestations of weakness in the face of temptation, such as having an illegitimate child or even drinking in time of divine service. In focusing on the vindication of Calvinist soteriology and on the practical divinity of assurance, clergy treated suicide as different only in scale from other moral lapses. Thus Halyburton’s sermons refer to suicide metaphorically as much as they do literally. He saw any evil thought as already destructive to the soul, placing the sinner on the

¹¹⁸ ¹¹⁹ ¹²² ¹²³ ¹²⁴

Mullan, ‘Mistress Rutherford’s conversion narrative’, 155–6. Ibid., 156. ¹²⁰ Ibid., 156–7. ¹²¹ Ibid., 157. R. Capel, Tentations: Their nature, danger, cure (London, 1655), 196. P. I. Kaufman, Prayer, despair, and drama: Elizabethan introspection (Urbana, 1996), 88. T. Halyburton, The great concern of salvation: in three parts . . . (Glasgow, 1751), 151–2.

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path to perdition. Any sin has murder in it, and by destroying the soul, the sinner ‘is guilty of that worst of wickedness, self-murder’.¹²⁵ For Halyburton mere ‘unbelief is self-murder’: soul-murder was self-murder and, ultimately, God-murder.¹²⁶ At the moment of awareness, even in despair, man must yearn for forgiveness, for ‘the desire of mercy in the want of mercy is the obtaining of mercy’.¹²⁷ The end result in Halyburton’s exhilarating narrative of salvation is that ‘the fears of that wrath that he little thought of, when he was just going to throw himself fearlessly in its hand by self-murder, now make him tremble, and fall down, and cry out, What must I do to be saved?’.¹²⁸ Thoughts of suicide were a prevenient grace, forming antecedents to regeneration and salvation in an essentially positive interpretation of spiritual turmoil. The clergy offered not condemnation of suicidal thoughts (or other manifestations of despair), but an optimistic path for those who found it hard ‘to sustain the difﬁcult dialectic of holy desperation and salviﬁc joy’.¹²⁹ The place of despair and diabolical (and, for that matter, worldly) temptation in conversion narratives may explain why the Kirk was slow to judge attempted suicides, except of people who otherwise appeared ‘desperate’ in having given up on faith (see 5.2a). Early modern conversion accounts involved a confession of sins and temptations, a profession of faith, and a statement of the experience of grace (however unworthy the one on whom it was conferred). They were more concerned with religious behaviour than with belief and, like collected providential judgements, were disseminated for ‘the conversion of unbelievers to the gospel, the correction by example of sinners, and the ediﬁcation of the godly’.¹³⁰ Reproduced or edited by clergy, they were as trope-bound as other literary forms, but they show that thoughts of, or even attempts at, suicide could be understood—and perhaps partly condoned—by those who had experienced similar inclinations or who knew at second hand about such temptations. Because it was accepted that Satan could place thoughts in the mind, sufferers from mental turmoil could, for their part, express their ideas to others in readily intelligible ways.¹³¹ This is not to say that suicidal feelings were a necessary part of conversion. Only two of several hundred people who attended the revival meetings at ¹²⁵ Ibid., 59–60. ¹²⁶ Ibid., 60, 289. ¹²⁷ T. Wilcox, A discourse concerning the doctrine of doubting (Cambridge, 1598), 273. ¹²⁸ Halyburton, The great concern of salvation, 151–2. ¹²⁹ J. Schmidt, Melancholy and the care of the soul: Religion, moral philosophy and madness in early modern England (Aldershot, 2007), 61. ¹³⁰ T. S. Freeman, ‘Fate, faction, and ﬁction in Foxe’s Book of Martyrs’, Historical Journal 43 (2000), 623. N. Landsman, ‘Evangelists and their hearers: Popular interpretation of revivalist preaching in eighteenth-century Scotland’, JBS 28 (1989), 120–49. E. R. Seeman, ‘Lay conversion narratives: Investigating ministerial intervention’, New England Quarterly 71 (1998), 629–34. ¹³¹ D. Oldridge, The devil in early modern England (Stroud, 2000), 46–7.

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Cambuslang near Glasgow in the 1740s were so tormented by their convictions that they contemplated suicide (both teenagers), though a handful of others wished that death would relieve their inner turmoil.¹³² Feeling suicidal was at least comprehensible in religious terms, and Ned Landsman goes as far as to suggest that fear of damnation was less pressing in such understandings than were more imminent concerns about sin and dishonour in the lives of the afﬂicted.¹³³ Yet Landsman’s distinction can be overplayed. Calvinists could be ﬂexible in using their theology to offer help to the godly who were in danger of despair, and suicidal tendencies could be construed in strongly positive terms.¹³⁴ Even a ‘ﬁre and brimstone’ preacher like Halyburton could offer a very matter-of-fact account of the Devil’s familiarity to believers: Temptations, either from Satan or the World, oft-times interpose betwixt our Lord and his People, and obscure the Discoveries of him, and discompose them, leading into wrong and frightful Apprehensions of him, and taking off from the Way of Communion with him. Instances of this Sort abound: All that are concerned know more than enough of this Kind.¹³⁵

Because they have not considered the full content and context of religious writings or the spiritual effect of Calvinism on believers, historians have offered conﬂicting interpretations of its impact on the causes of suicide. Jeffrey Watt sees rising rates in eighteenth-century Geneva as the result of secularization. Prior to this, strict Calvinism kept them in check by ensuring religious participation and social integration. Watt privileges the public or external social context supposedly created by Calvinism. In contrast, Markus Sch¨ar believes that the doctrine of election caused rising suicide rates in seventeenth-century Z¨urich, the weight of predestinarian ideas pressing down on its citizens. Because Calvinism emphasized the internalization of guilt and frowned on expressions of emotion, psychological stresses were accentuated and suicide increased. At the same time, the close policing of violence contributed to a parallel reduction in the murder rate.¹³⁶ Thus, Sch¨ar favours an interpretation invoking internal or personal psychology. John Stachniewski blends the two when blaming Calvinist theology and social authoritarianism for the widespread despair of the sixteenth and seventeenth centuries in England.¹³⁷ Leaving aside the problem of distinguishing between the underlying level of suicide and sensitivity to it, which weighs on both the Swiss studies, the effect of Calvinism must have been indirect, because all these interpretations ignore the positive side to temptation and despair within that faith—or at least as it was experienced by Scots. ¹³² Landsman, ‘Evangelists’, 138. ¹³³ Idem. ¹³⁴ Schmidt, Melancholy, 67. ¹³⁵ T. Halyburton, Five sermons preached before and after the celebration of the Lord’s Supper (Edinburgh, 1721), 107. ¹³⁶ Sch¨ar, Seelenn¨ote der Untertanen, 131–274. ¹³⁷ Stachniewski, Persecutory imagination, 60–1.

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6.5 SUICIDE AND RELIGION IN THE ENLIGHTENMENT

6.5a English sermons: medicine and law in the service of religion Churches in England condemned wholeheartedly the taking of life in 1800 as they had in 1600 or 1400.¹³⁸ Yet the forms of religious debate about suicide underwent changes in both context and content as medicine and the law enriched religious literature between the Renaissance and the Enlightenment. One level of explanation was not displaced by another, for natural and supernatural interacted in ways that were as much mutually reinforcing as they were differentiating. Understandings of suicide did not become medicalized because there had always been a medical dimension, and they did not become secularized, for religion itself changed to accommodate developments in other areas of thought. Elizabethan Timothy Bright explored the complex links between mind, body, and spirit in one of the earliest treatments of the medical and religious dimensions of self-destruction. Written in the form of a letter to ‘a melancholicke friend’, his text tried to distinguish the irrational fears of the physiological condition of melancholy from the understandable spiritual doubts of Calvinist election: the ‘large monstrous ﬁctions’ or ‘meere fancy’ of melancholy—‘when anie conceit troubleth you that hath no sufﬁcient grounde of reason but riseth onely upon the frame of your brayne’—from the rationality that was behind ‘the soul’s proper anguish’ or ‘Holy desperation’.¹³⁹ It blended religious and medical understanding, noting that the condition could be characterized by feelings of divine displeasure or ‘fatherly frowning’, and was thus a sign of well-being rather than pathology. Christians might doubt, but they might also suffer melancholy, and they had a duty to try, by diet, medicine and prayer, to identify and cope with conditions which could cause suicidal impulses, and they were responsible for lacking the discrimination and application to surmount those feelings.¹⁴⁰ Bright’s association is one reason Angus Gowland ﬁnds it ‘misleading to portray a triumph of medical conceptions of madness occurring in the century after the Civil War in terms of a radical displacement of spiritual systems of explanation and treatment’.¹⁴¹ While there was a shift towards the somatic in ¹³⁸ Macdonald, Life’s preservative, xvii–xx. ¹³⁹ T. Bright, A treatise of melancholie. Containing the causes thereof, & reasons of the strange effects it worketh in our minds and bodies: with the phisicke cure, and spirituall consolation for such as haue thereto adjoined an afﬂicted conscience (London, 1586), 194. J. Abernethy, A Christian and heavenly treatise containing physicke for the soule (London, 1630), 136. Kaufman, Prayer, 118–22. ¹⁴⁰ O. Williams, ‘Exorcising madness in late Elizabethan England: The seduction of Arthington and the criminal culpability of demoniacs’, JBS 47 (2008), 44. ¹⁴¹ A. Gowland, ‘The problem of early modern melancholy’, P&P 191 (2006), 109.

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medical writing, physicians had always located melancholy in physiology, even if they tended to add a secondary spiritual dimension or, like Bright, tried to separate a spiritual from a mental and physical problem; spiritual healers, too, recognized the need for medical care of the body, because corporal afﬂictions could lead to temptation.¹⁴² Gowland adds that the real competition in late seventeenthcentury interpretations of melancholy and madness was not between occult and mechanical-scientiﬁc interpretations of human nature, or between religious and secular or medical conceptions of illness. Instead they were between different ideas of how God, spirit, and matter were connected.¹⁴³ Indeed, it is wrong to see the root of bad deeds as ‘the consequence of sin and diabolic temptation’ in the sixteenth and seventeenth century and ‘greed, intemperance, aggression and even negligence’ in the eighteenth, for all these inﬂuences and traits were linked together.¹⁴⁴ Renaissance physicians were careful about how they linked mental problems to self-destruction, and suicides were not maniacs, but melancholics, in writings from Bright and Burton onwards.¹⁴⁵ Religious discourse in the age of Enlightenment accommodated this tradition. George Cheyne, author of The English malady (1733) and himself a melancholic, believed ‘that most of those who make away with themselves, are under the Inﬂuence of this distracting Evil’.¹⁴⁶ Charles Moore distinguished manic pathology from potentially suicidal: ‘that one species of conﬁrmed madness, the turbulent and frantic, is seldom known to stain its hands in its own blood; but to employ all the cunning and mischievous imagination, of which it is master, to the harm and destruction of others’. Such people posed more of a threat to others than to themselves. ‘But there is another species of madness, the dejected and melancholic, which, preying more inwardly on itself, is more frequently productive of self-destruction’.¹⁴⁷ In a medical sense, the suicidal mind was not furious and indiscriminately violent to others, but melancholic and inclined to measured self-harm. For Bright and those who followed him, medicine and religion had to be understood together. Burton’s discussion of ‘religious melancholy’ was not a ‘modern’ critique of religion from a medical standpoint, but an attack on radical Puritanism.¹⁴⁸ Lawyers, too, saw religion entwined with their work and they had always used ethical and moral standards as one of the bases for arguments and ¹⁴² Parker, ‘Spiritual physicke’, 81. ¹⁴³ Gowland, ‘Melancholy’, 110–11. ¹⁴⁴ E. J. Snell, ‘Perceptions of violent crime in eighteenth-century England: A study of discourses of homicide, aggravated larceny and sexual assault in the eighteenth-century newspaper’, (University of Kent Ph.D., 2005), 280. ¹⁴⁵ Burton, Anatomy of melancholy, vol. 1, 428–38. MacDonald, ‘Inner side of wisdom’, 573, claims that Richard Napier’s appreciation of this point was unusual. ¹⁴⁶ G. Cheyne, The English malady: or a treatise of nervous diseases of all kinds, as spleen, vapours, lowness of spirits, hypochondriacal, and hysterical distempers etc. (London, 1733), 3. ¹⁴⁷ Moore, A full inquiry, vol. 1, 4. ¹⁴⁸ A. Gowland, The worlds of Renaissance melancholy: Robert Burton in context (Cambridge, 2006), 70, 139–204, 298–9.

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judgments. In Hales v. Petit at the Common Bench (Trin. 3 Eliz.) Lord Dyer used Aquinas’ three reasons against suicide to answer the question: ‘to whom the offence is committed[?]’.¹⁴⁹ From the Restoration onwards a reciprocal inﬂuence is clear as legal and other arguments contributed to clerical discourses, which took on board both legal texts and changes in coroners’ inquests to argue vigorously against any necessary association between suicide and insanity. In the 1720 edition of his commentary on the Book of Common Prayer (ﬁrst published in 1710), Charles Wheatly used guides like Hawkins’ Pleas of the crown to berate the basis of non compos mentis verdicts.¹⁵⁰ Wheatly roundly condemned standards of investigation and proof at inquests and their increasingly common ﬁnding of non compos mentis: ‘‘Tis true indeed, there may be a moral Madness, i.e. a Misapplication of the Understanding in all Self-Murderers: But this sort of Madness does not come under the Cognizance of a Jury; the Question with them being, not whether the Understanding was misapply’d, but whether there was any Understanding at all’.¹⁵¹ Wheatly accused juries of legal illiteracy and enjoined them ‘to judge whether the Signs of Madness, that are now pretended, would avail to acquit the same Person of murdering another Man’.¹⁵² These clerico-legal arguments reappeared in sermons and other publications by English clergy throughout the eighteenth century, and reﬂected the way legal concepts and methods of proof were applied by Restoration and later religious thinkers to issues that were more or less removed from courts.¹⁵³ They show how the Anglican Church (and indeed all types of English Protestantism) accommodated itself to cultural, political, and social change by grafting legal arguments onto traditional doctrinally and philosophically based injunctions against self-murder.¹⁵⁴ For example, John Cockburn, vicar of Northall in Middlesex, bluntly described coroners and their juries as ‘I will not say ignorant, but most corrupt’.¹⁵⁵ Writing like Wheatly of bribery and inﬂuence, Cockburn argued that inquests should provide reasons for their verdicts, which presently were ‘the Scandal of this Nation, because more often practised here than any where else’.¹⁵⁶ Cockburn carried on the seventeenth-century Puritan interpretation of misfortune in arguing that a more discriminating set of inquest judgments would allow people to see the providential hand of God in self-murder. ‘If the person ¹⁴⁹ 1 Plowden 261. ¹⁵⁰ W. Hawkins, A treatise of the pleas of the crown . . . 2 vols. (London, 1716, 1721), I.27.2–3. See also Three sermons on self-murther. By William [Fleetwood], late Lord Bishop of Ely (London, 1732), 42–62 (third sermon). ¹⁵¹ Wheatly, Book of Common Prayer, 469. ¹⁵² Ibid., 470. ¹⁵³ B. Shapiro, ‘Religion and the law: Evidence, proof and ‘‘matter of fact’’, 1660–1700’, in Landau (ed.), Law, crime and English society, 185–207. For example, C. Hodgson, A letter from a magistrate in the country, to his medical friend at Peterborough (Peterborough, 1800). ¹⁵⁴ J. Gregory, ‘Anglicanism and the arts: Religion, culture and politics in the eighteenth century’, in Black and Gregory (eds), Culture, politics and society, 82–109. ¹⁵⁵ J. Cockburn, A discourse of self-murder. In which the heinousness of the SIN is expos’d (London, 1716), 25. ¹⁵⁶ Ibid., 26–7.

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has had the Use of his Senses and Reason in former Times, it may be suspected a Divine Judgement for some particular Sins.’¹⁵⁷ A mid-eighteenth-century tract that ranged widely over personal and social ills from a warmly dissenting viewpoint shows the mixing of interpretations and the inﬂuences of multiple ‘secular’ arguments on a religious interpretation: Violent Temptations from the implacable Enemies of Mankind the fallen Angels (I question not) oft drive poor Creatures to desperate attempts upon their own Lives and shou’d be carefully guarded against; this may be deem’d an enthusiastical Caution by those who think them no more than imaginary Beings, but can hardly be so by those who draw their Creed from their Bibles.¹⁵⁸

Continuing the biblical theme, it afﬁrmed that ‘most of those who make away themselves have no notion of the Divine Authority of the Scriptures’. Adding appeals to the law of nature as a reason against suicide, the pamphlet nevertheless allowed for bodily ailments as a cause of despair and even accepted that ‘in the Instance of poor melancholy Creatures the Fact is not so criminal as pittyable’.¹⁵⁹ The tract accommodated medical developments, but in the rigorous sense meant by doctors, most of whom argued that only a small minority of suicides were truly mad. The perceived absurdity of coroners’ verdicts was pilloried in an anonymous pamphlet of 1779, which tried mischievously to argue that suicidal propensity should be a sign of insanity at the criminal law. The occasion was the murder of Miss Martha Reay by her admirer, James Hackman. He had come upon his victim at Covent Garden, armed with two pistols. One he used to shoot her in the head, the other he ﬁred at himself without injury. He was executed for murder. The author of the pamphlet tried to suggest that if he had managed to commit suicide a coroner’s jury would have found him insane and thus exonerated him from the penalties for both self-murder and murder.¹⁶⁰ The author claimed to write on behalf of the family, and the pamphlet reads like a forward-thinking ‘humanitarian narrative’.¹⁶¹ However, it followed closely the arguments against equating suicide and insanity put forward by Serjeant Hawkins.¹⁶² Far from sympathetic, it was a provocative attempt to expose the shortcomings inherent in any automatic association between suicide and insanity, by offering the patently ridiculous suggestion that an attempt at self-murder should exonerate ¹⁵⁷ Cockburn, Discourss of Self-Murder, 28. Such popular writings on suicide reinforce Malcolm Gaskill’s warning that ‘the recession of providence was very gradual’. Gaskill, Crime and mentalities, 265. ¹⁵⁸ Rural recreation; or, the employment of a few leisure hours . . . also, some thoughts on the sin of self murder (Kendal, c.1750), 63–4. ¹⁵⁹ Ibid., 61, 63, 64. See also A caveat against suicide, 13–14. ¹⁶⁰ The case and memoirs of the late Rev. Mr James Hackman . . . (London, 1779). ¹⁶¹ T. W. Laqueur, ‘Bodies, details, and the humanitarian narrative’, in L. Hunt (ed.), The new cultural history (London, 1989), 176–204. ¹⁶² Hawkins, Pleas of the crown, I.27.2–3.

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murder itself. Nor in reality did an attempted suicide prior to execution prove derangement. Instead, it conﬁrmed guilt, just as ﬂight had condemned the accused felon from the time of Bracton and Britton.¹⁶³ In 1790, Moore’s monumental work included (alongside much else) the same legal arguments in a more straightforward way.¹⁶⁴ For example, Moore exempliﬁed the legally informed Anglican churchman when arguing that the standard of proof necessary to prove a suicide was mentally incapable should be the same as that to determine if he could manage and protect his fortunes while living. Borrowing a line that lawyers north and south of the Border endorsed, he concluded that ‘if there were not insanity enough at his death to have ‘‘justiﬁed’’ such a process [a writ de lunatico inquirendo], neither could there have been enough to have stamped legal innocence on the accomplishment of his own murder’. Or, seen from the standpoint of the criminal law, suicide should be exculpated only when the proof was sufﬁcient to have excused killing another, as the 1779 pamphlet proposed.¹⁶⁵ Writers like Moore used science and law with rigour to condemn most suicides.¹⁶⁶ He saw as the ultimate cause of suicide not Satan, but ‘a want of serious and religious culture in early life’.¹⁶⁷ Next came ‘a debauched and sceptical state of mind’, and ﬁnally ‘immediate’ bodily pain and/or mental suffering.¹⁶⁸ Sophisticated texts like Moore’s cannot be written off as mere ‘enemies of toleration’ because they expressed a central, not a residual, part of Anglican (and Nonconformist) thought.¹⁶⁹

6.5b Scottish philosophy and religion: the marginality of suicide in the age of Hume Clerico-legal argument was very English, and Scotland produced few of the tracts against suicide that peppered seventeenth- and eighteenth-century English intellectual life. Sermons that did discuss self-murder are innocent of the association with the law, which characterized their eighteenth-century English counterparts. The omission is a singular one, for there was in Scotland much greater theoretical discussion of the law than in England, taking the form of ¹⁶³ R. B. Pugh, Imprisonment in medieval England (Cambridge, 1968), 228. ¹⁶⁴ Among others see Anon., ‘Historical remarks on suicide’, The Edinburgh Magazine 14 (December 1799), 446–9. ¹⁶⁵ Moore, A full inquiry, vol. 1, 333–4. ¹⁶⁶ Wynn Wescott wrote much later that the records of English law ‘will furnish numerous instances in which the existence of unsoundness of mind is not proved by the fact of subsequent self-destruction’—or its attempt. Westcott, Suicide, 56. The cases cited are McAdam v. Walker, 1 Dow P. C. 148; Burrows v. Burrows, 1 Hagg. Eccles. Rep. 109; Chambers v. Queen’s Proctor, 2 Curt. 415; Steed v. Calley, 1 Keen, 620; Regina v. Rumball (1843); Regina v Farley (1844). ¹⁶⁷ Moore, A full inquiry, vol. 1, 9. See also pp. 38–45, for an account of man’s duty to God. ¹⁶⁸ Ibid., 15–22; quotation at p. 15. Later Moore wrote of ‘its preparatory causes, such as excessive dissipation, scepticism and inﬁdelity . . . its immediate incitements, the mazes and perplexities of vice . . . its ﬁnal instigator, despair’. Ibid., 31. ¹⁶⁹ MacDonald and Murphy, Sleepless souls, 164.

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a number of ‘Institutes’ or ‘Principles’ by leading jurists, of which the closest English approximation was Blackstone’s Commentaries. Counsel in both civil and criminal cases was expected to be more discursive about, for example, the basis of the crime in the law of nature and of God, and also its treatment in the laws of other countries.¹⁷⁰ Law was embedded in both the practical and the intellectual world of eighteenth-century Scotland, and theoretical discussion of Scots and continental legal systems was part of the discourse of its Enlightenment. Scottish society was as legalistic as English: more so as workers with grievances tended to resort to the courts rather than taking to the streets. The reason for the lack of a legal dimension to suicide sermons lies largely in the absence of coroners’ inquests in Scotland, which were regarded as the root cause of the constructive ﬁctions so deplored by post-Restoration English divines, doctors, and lawyers alike. Scottish intellectuals found little to complain about in the law on suicide. They may also have taken on board the lack of any investigation of intent in routine legal processes, which were in any case conducted in private. Thus the self-evident wrongness of suicide before the law of God was paralleled by the equally uncontroversial simplicity of its position before the law of man. Instead, writers and speakers focused on classical debates in philosophical discourses about whether suicide was acceptable or even desirable. The most noticeable outpouring came after the publication of Hume’s tract ‘Of Suicide’ in 1777 (though discussed more after 1783–4 and 1789). In it, the philosopher argued that self-murder was neither immoral nor irreligious, and he seemed to allow it as an allowable indulgence to those at the end of a useful life.¹⁷¹ However, there were at least two centuries of debate among English authors prior to this.¹⁷² For example, Francis Bacon felt that medical practitioners could, and should, mitigate pain and suffering, including in circumstances ‘when it may serve a fair and easy passage’ from life—as had Thomas More in Utopia (1516).¹⁷³ Without existing justiﬁcations of self-murder, Robert Burton would have found it difﬁcult to write on the lawfulness of melancholic suicide.¹⁷⁴ One is contained in Spenser’s The faerie queene and is rendered by ‘Despaire’ to the central character, a knight called Redcross, who had already experienced inward desolation and doubts about his election.¹⁷⁵ ‘Despaire’ turns the Calvinist notion of predestination on its head to argue that the longer people lived, the more they ¹⁷⁰ J. W. Cairns, ‘Legal theory’, in A. Broadie (ed.), The Cambridge companion to the Scottish Enlightenment (Cambridge, 2003), 230. ¹⁷¹ [David Hume] Two essays (London, 1777), essay 1. M. A. Stewart, ‘The Stoic legacy in the early Scottish Enlightenment’, in M. J. Osler (ed.), Atoms, pneuma, and tranquillity (Cambridge 1991), 295. ¹⁷² Moore, A full inquiry, vol. 1, pp. 83–103 and vol. 2, pp. 1–41, deal with Donne’s arguments. ¹⁷³ Quoted in N. D. A. Kemp, ‘Merciful release’: The history of the British euthanasia movement (Manchester, 2002), 7. ¹⁷⁴ Gowland, Renaissance melancholy, 112, 301. Burton, Anatomy of melancholy, vol. 1, 434–8. ¹⁷⁵ Kaufman, Prayer, 71–4.

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sinned, and thus their chances of salvation were better if they died young: suicide could be part of God’s purpose. Spenser was playing a game with Puritans, but others wrote about suicide with more feeling. Burton concluded Part 1 of the Anatomy with a section on the ‘Prognosticks of Melancholy’, and a plea that suggested a variety of attitudes to suicide, its tone lent poignancy by the possibility that Burton himself was a melancholic who ended his own life. With Latin passages removed it reads: ‘Thus of their goods and bodies, we can dispose, but what shall become of their soules, God alone can tell, his mercy may come . . . betwit the bridge and the brooke, the knife and the throte. . . . Who knows how he may be tempted? It is his case, it may be thine? . . . [W]ee ought not to bee so rash and rigorous in our censures, as some are, charity will judge and hope the best; God be mercifull unto us all’.¹⁷⁶ Without justiﬁcations of suicide like John Donne’s Biathanatos, written c.1608–9 but ﬁrst published in 1647, there would have been no need for the likes of John Sym’s 1637 Lifes preservative against self-killing.¹⁷⁷ On the continent, Baruch Spinoza argued that suicide was not a mortal sin. Death by one’s own hand was like any other mortality in being caused by forces outside the person’s control. Moreover, because suicide was passive or involuntary—individuals killed themselves because of external pressures that changed their nature—their essential being remained untouched.¹⁷⁸ Indeed, it would be fairer to characterize sixteenth- and seventeenth-century intellectual debate on suicide as just that: contests between opposing views against a background of mainstream opposition, rather than a uniformly hostile critique with a few quiet words spoken in the background that would eventually become the conﬁdent voice of reason and toleration. These English and European texts were owned and read in Scotland: one sign of alleged suicidal inclinations in Sir James Standsﬁeld was his reading The anatomy of melancholy.¹⁷⁹ They provide essential background for understanding debate in Scottish legal, literary, and religious circles well before the appearance of Hume’s tract. While in his early twenties, Rev. Robert Wallace, a radical divinity student and a founder of the Rankenian Club who later became prominent in the Church of Scotland, was able to write a paper defending suicide.¹⁸⁰ Dr John Pringle, Professor of Moral Philosophy at Edinburgh University, 1734–45, lectured for two weeks on the arguments for and against suicide.¹⁸¹ Pringle ﬂatly denied any religious basis for condemning suicide and he took what he saw as a strictly Stoic ¹⁷⁶ Burton, Anatomy of melancholy, vol. 1, 438. ¹⁷⁷ Macdonald, Life’s preservative, xxi–xxiv. ¹⁷⁸ M. Gabhart, ‘Spinoza on self-preservation and self-destruction’, Journal of the History of Philosophy 37 (1999), 613–28. ¹⁷⁹ The tryall of Philip Standsﬁeld , 8–9. ¹⁸⁰ EUL MS La. II 620/19, R. Wallace, ‘A little treatise on virtue & merit’ [c.1720]. ¹⁸¹ EUL MS Gen. 74D, ‘Lectures from Cicero, by Dr John Pringle . . . 1741’, 15–44. Stewart, ‘Stoic legacy’, 294–5.

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line in its defence—it was justiﬁable when a person’s ‘dying would be of more advantage to the Publick than his living’—but he treated it as contemptible when mere self-indulgence. This seems to put him at odds with Francis Hutcheson’s opposition to suicide, yet Hutcheson allowed that considerations of public good could override normal prohibitions. Both Hutcheson and Thomas Reid discuss suicide in connection with the right to life. For his part, Pringle lectured to show learning and logic rather than love of suicide. All of these thinkers were trained in theology and some were ordained ministers, the sixth commandment constraining their analysis. Yet their true inspiration came from European natural-law theory of the seventeenth century rather than from either English writings or native theological opinion, even if Hutcheson identiﬁed natural law with the divine will. In Samuel von Pufendorf’s Law of nature and Duty of man suicide is dealt with as one of the ‘duties to ourselves’ when answering the question: Is there a right to take one’s own life or even a duty to do so?¹⁸² Natural-law theory dealt with the structure of social relations between self, community, and society, those who used it seeking guidance in practical ethics and public virtue. Looking only at the Enlightenment it may appear that suicide had entered the realms of natural religion, for it was discussed more by philosophers than theologians; natural jurisprudence was central to the philosophy curriculum in Scotland from the 1720s onwards. However, suicide’s place in theological and philosophical debates about revealed religion was never prominent. Thinkers within a tradition of Christian Stoicism saw self-murder as acceptable in some very limited circumstances—a marginal rather than mainstream issue—and they emphatically did not legitimize suicide in general. Like their English counterparts, they wrote in a climate of opinion that found it to be fundamentally wrong in most cases. Eighteenth-century university lectures like Pringle’s were not esoteric discourses, but part of the integrated contribution to a world of letters characteristic of the Scottish Enlightenment. Lawyers and clergymen were among the other contributors. In 1757 the lawyer John MacLaurin (later Lord Dreghorn) published a satirical attack called The philosophers opera, directed against Hume and his kinsman, the dramatist Rev. John Home, author of a controversial play called Douglas performed in the same year. It was widely known that Hume had recently succumbed to pressure to suppress an essay that appeared to condone suicide. In conversation with Satan during the play, Mr Genius seeks to be reassured that ‘you are convinced, I suppose, that there is no God, no devil, no future state; —that there is no connection betwixt cause and effect; —that suicide is a duty we owe to ourselves; —adultery a duty we owe to our neighbour; —that the tragedy of Douglas is the best play ever was written; and that Shakespear and ¹⁸² T. Reid, Practical ethics: Being lectures and papers on natural religion, self-government, natural jurisprudence, and the law of nations ed. K. Haakonssen (Princeton, 1990), 322.

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Otway were a couple of dunces’.¹⁸³ The suicide reference is to Lady Randolph, a character in Douglas, who makes a Stoical end to herself, for MacLaurin wanted to show the baleful inﬂuence of an inﬁdel philosopher on an impressionable minister. Elsewhere, MacLaurin decried her character as a poor imitation of Ophelia in Hamlet, saying that Lady Randolph ‘dies like a virago who had carefully perused the late essay on SUICIDE’.¹⁸⁴ In the play the Devil suspected that Genius was ‘endeavouring to convert men to Christianity, by writing nonsense against it’.¹⁸⁵ Satan rounds on an acolyte trying to assure him that ‘when he wrote, he had you at his elbow’: ‘Really, Mr Mask, I think I may say without vanity, that had I assisted him, he would not have written so absurdly. I was very well pleased to hear him deny the existence of a God, and so forth; but his positions about suicide and adultery will certainly do our cause no good.’ Public opinion approved of neither sin, and to argue publicly for one or the other was to risk ridicule. The reference in The philosophers opera is incidental, a satirical detail, but it illustrates the fact that opinion was opposed not only to the fact of a clergyman writing for the stage, but also to elements of its content.¹⁸⁶ Hume’s essay was only published posthumously (and anonymously) in 1777. Originally conceived in a climate of moralism, it seems to have had little support in any circles, and it is unclear who his target was. Its publication provoked debate—or rather indignant ripostes, for few hurried to offer refutations. Indeed, its contemporary signiﬁcance has been overstated. Only in the sixth edition of The theory of moral sentiments, published just before his death in 1790, did Adam Smith re-examine the Stoic philosophy. He must have known of Hume’s essay when preparing the ﬁrst edition (1759), though it was only ascribed to Hume in editions of 1783–4 and 1789. Writing with feeling, Smith found suicide comprehensible in medical terms: in this he followed Hume and many before him, as he did in condemning any punishment of the dead or their survivors. However, Smith ﬂatly denied that suicide was defensible on moral grounds. In what can only be a dig at Hume, he called it ‘a reﬁnement of philosophy’ to see suicide as ‘an object of applause and approbation’. His blunt conclusion was: ‘It is only the consciousness of our own weakness, of our own incapacity to support the calamity with proper manhood and ﬁrmness, which can drive us to this resolution’.¹⁸⁷ Smith sided ﬁrmly with the prevailing ¹⁸³ J. MacLaurin, The philosophers opera (Edinburgh, 1757), 15. I have beneﬁted from discussions with Professor Sandy Stewart on this play. ¹⁸⁴ [J. MacLaurin], Apology for the writers against the tragedy of Douglas (Edinburgh, 1757), 13. MacLaurin later wrote a detailed description of a case of murder and suicide from 1769–70. Arguments and decisions . . . Collected by Mr MacLaurin, case 84 (505–32) and note (771–2). ¹⁸⁵ [MacLaurin], Apology, 17. ¹⁸⁶ See Douglas, a tragedy, weighed in the balances, and found wanting (Edinburgh, 1757), 33, for an orthodox religious view of suicide. ¹⁸⁷ A. Smith, The theory of moral sentiments eds D. D. Raphael and A. L. Macﬁe (Oxford, 1976), 287.

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moralist climate of presbyterian piety, religious and political conformity, and morality.¹⁸⁸ Newspapers rehearsed these ideas north and south of the Border. In 1799 the Edinburgh Advertiser lifted the following commentary from the London press: ‘The Suicides that occur are generally attributed to Lunacy; but we believe, many of them arise from the want of Religious Principles, so prevalent in the present age; and to the French New Philosophy, which declares that Death is Eternal Sleep—otherwise we would not see so many unhappy persons rushing into the presence of their Creator, with all their sins upon their heads, with the additional aggravation of Self-Murder’.¹⁸⁹ The jibe at France reminds us that the secularization model has its intellectual roots there. Often mistakenly seen to exemplify the European Enlightenments, the French one had a prominent anti-clerical edge, and French philosophers’ defence of suicide was a way of getting at the church. The same may have been true of Hume, with his deist inclinations and his ‘outsider’ status. However, the place of anti-clerical writings about suicide in France, both during and after the Enlightenment, has distorted perceptions of relations between theology, science, and medicine elsewhere in Europe during the eighteenth century. For one thing, not all Enlightenment thinkers approved of arguments for the legitimacy of suicide. Immanuel Kant drew on Rousseau’s ethical theories to argue that suicide deprived people of their humanity and freedom, rather than adding to these qualities. Suicide for Kant was against the moral sense of the individual and the collective.¹⁹⁰ At the same time, most Scots literati were very much at home with organized religion: English too. For many Scots thinkers the Kirk was their home. Their understandings of suicide mirrored changing relationships with God rather than being a reaction against the church, let alone faith itself. Revisiting the classics, they took on board natural law theory to allow a niche for a certain type of suicide, but again without surrendering the axiomatic point of the sixth commandment. Thus, using an anti-clerical French model is even less appropriate to Scotland than England. British constructions of suicide were not part of a search for religious unity or ‘Christianization’ (as they may have been in more or less monotheistic post–1685 France), but an attempt to further denominational superiority. They were the instruments, not the outcomes, of attempts to impose consensus. For most British writers in the age of Enlightenment, suicide was a marginal issue. It could provide a useful peg for debate on speciﬁc philosophies like Stoicism, but in everyday life it was simply wrong. A letter to the Edinburgh Christian Instructor, published in March 1817, criticized a reviewer of a collection of English sermons for misrepresenting an aspect of their treatment of suicide. ¹⁸⁸ Stewart, ‘Stoic legacy’, 275. ¹⁸⁹ EA 3702 ( June 1799). ¹⁹⁰ M. J. Seidler, ‘Kant and the Stoics on suicide’, Journal of the History of Ideas 44 (1983), 429–53. Baumann, Recht auf den eigenen Tod , 133–4.

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For the correspondent, ‘the evil of suicide . . . hardly admits of argument’. He recommended two sermons on ‘the guilt, folly, and sources of suicide’ by Samuel Miller of New York, who was widely read in early nineteenth-century Scotland.¹⁹¹ Miller was a Presbyterian minister, but his sermons were an austere version of the English genre prominent at different points in the eighteenth century, mixing English-based colonial law with fashionable medical, philosophical, and religious debate. Miller railed, for example, against ‘this economy of pleasure’ ﬁnding one reason for suicide in ‘early and excessive indulgence’. Like Moore, he singled out ‘the want of sincere and vital piety’.¹⁹² Faced with the self-evident, the editor of the Edinburgh Christian Instructor was only able to gloss the correspondent’s recommendation by suggesting a sermon by a Mr Clayton ‘Do thyself no harm’.¹⁹³

6 . 6 C O N C LU S I O N : H Y B R I D U N D E R S TA N D I N G S I N A R E L I G I O U S AG E Suicide was largely a secular event. The crown or subordinate franchisees oversaw forfeitures, which were approved and enforced by secular courts; local magistrates administered the investigation, ‘trial’, and dragging and gibbeting of some Scottish corpses; English coroners’ juries investigated causes of death and adjudicated on responsibility before issuing burial warrants. Proximate explanations of suicidal death (the only level of interpretation that was offered in most cases) were ‘this-worldly’, and the explicated role of the supernatural was often marginal. To claim that early modern suicide was seen in ‘primarily supernatural’ terms is far to exceed the evidence. Understandings are better viewed as a hybrid of the natural and spiritual, both at the mundane level of causation and in learned discourses that blended law and medicine with religion.¹⁹⁴ Clergy might preach or write about suicide’s evils, but the church’s main practical role lay in granting or denying the rites of burial.¹⁹⁵ There is no record of their involvement with any of the afﬂictive punishments surrounding suicide, whether staking, dragging, or gibbeting. Aspects of the treatment of the corpse such as highway or crossroads burial, said to disorient or dissipate the suicide’s spirit, or staking, said to prevent wandering ghosts, had no current religious ¹⁹¹ Edinburgh Christian Instructor 14 (March 1817), 156–7. S. Miller, The Guilt, Folly and Sources of Suicide: Two Discourses (New York, 1805). ¹⁹² Ibid., 47, 65. ¹⁹³ Edinburgh Christian Instructor 14 (March 1817), 157. Neither Professor John McIntosh nor I have been able to trace the Clayton sermon. ¹⁹⁴ MacDonald and Murphy, Sleepless souls, 59. ¹⁹⁵ Rex v. Coleridge [1819], 2 B. & A. 806; Chit. 588 [ER 106, 559]. ‘The mode of burying the dead is a matter of ecclesiastical cognizance.’ Green’s encyclopaedia, ‘burying-place’.

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authority behind them because they went against the Protestant doctrine of the location of souls.¹⁹⁶ These rites may have come out of ‘popular’ religion, though their realization said more about ideas of Christian community than about understandings of Christian dogma. Clergy across Britain saw them as superstitious. Their spiritual role was more to help the suicidal than to condemn those who had taken their own lives. When afﬂicted with despair, godly counsel could prevent the disoriented conscience from misleading the Christian into spiritual or bodily destruction.¹⁹⁷ Presented with suicide as a phenomenon, pastors sought to use it as a paradigm of the problems caused by erroneous or absent faith. Political context propelled a dynamic, polemical social memory of self-murder. Adhering to the sixth commandment, they saw apparent apologists like Hume engaging in little more than ‘a reﬁnement of philosophy’. Yet faced with an actual or potential suicide, the clergy were hardly less ambivalent than their ﬂocks. They struggled to understand and to help as much as they rushed to judge. Ministers of the gospel could take a secular (even a psychological) line on suicide’s causes, drawing on their pastoral experiences as much as their theological training. Examples of clergy who killed themselves also suggest that behind the rhetoric about sin was a nuanced and contingent understanding of the deed, based on intention and circumstance, which belied the moral absolutes of other types of religious discourse. While suicide might be attributed to satanic temptation, there is no evidence that an inclination to kill oneself was necessarily regarded as indicative of involvement with the Devil.¹⁹⁸ Committing suicide was no more a necessary sign of being a reprobate than it was an unambiguous indicator of madness, and ways of life rather than means of death were more important in determining the judgement of contemporaries and posterity. Thus, of those cited in this section, Mr Colquhoun’s sister and John Chalmers were surely saved, and Mrs Rutherford probably so, while Edward Thomson might be damned (if God was just) and Anna Tait certainly was. ¹⁹⁶ J. Bath, ‘ ‘‘In the Divell’s likenesse’’: Interpretation and confusion in popular ghost belief ’, in J. Newton (ed.), Early modern ghosts (Durham, 2002), 75–6. ¹⁹⁷ Parker, ‘Spiritual physicke’, 79. ¹⁹⁸ This has been claimed by Yeoman, ‘Witchcraft cases’, 235, and also by Stachniewski, Persecutory imagination, 47.

7 Newspapers and Public Opinion: Neutralizing Suicide? 7 . 1 I N T RO D U C T I O N : N EW S PA PE R S I N N O RT H E R N B R I TA I N , C . 1 7 0 0 – 1 8 3 0 Social historians were once sceptical about the value of literary sources, and many still baulk at the idea of meaning detached from practice, arguing that no kind of historical event is only a discourse. Arguably the most important mass medium of the last half millennium, newspapers are among these sources. Naturally, they cannot offer an accurate representation of either the incidence or character of suicide, but they can depict how people became informed about it, for they were able ‘to constitute as well as to reﬂect social realities’, making as well as reporting news.¹ A representation contributes to constructions of what is ‘real’ or ‘true’, and is therefore itself a form of reality.² What kind of representation of suicide do newspapers give? Foucault proposes that eighteenth-century newspapers offered increasingly bland ‘factual’ accounts of crime that were dry, unemotional, and lacking social depth.³ They substituted a minimal amount of vicarious knowledge (‘les silences de la chronique’) for direct and textured experience obtained through personal interchange.⁴ MacDonald and Murphy follow this line, while arguing that newspapers were instrumental in promoting a more matter-of-fact, secular, and sympathetic understanding of self-murder among their readership: a modern medium with a modern message. In contrast with the quantiﬁcation of coroners’ verdicts, their analysis is purely qualitative, and seems to be based on a cursory reading of newspapers published in and around London, bolstered by the liberal application of literary theory.⁵ ¹ P. King, ‘Newspaper reporting, prosecution practice and perceptions of urban crime: The Colchester crime wave of 1765’, C&C 2 (1987), 423, 446. ² R. McGowen, ‘Getting to know the criminal class in nineteenth-century England’, NineteenthCentury Contexts 14 (1990), 33–54. ³ Foucault, Discipline and punish, 59–69. ⁴ A-C. Ambroise-Rendu, ‘Le suicide ou les silences de la chronique des faits divers’, Romantisme 27 (1997), 77–88. ⁵ MacDonald and Murphy, Sleepless souls, 301–37.

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Provincial newspapers across Britain trailed metropolitan ones in inception, numbers, and frequency of publication. Regular and long-lived Scottish newspapers were unusual until the early or mid-eighteenth century and they served the biggest cities: of ten Scottish papers in existence in 1789, seven were published in Edinburgh or Glasgow.⁶ Edinburgh had regular publications from the start of the eighteenth century and the Edinburgh Evening Courant (1718–), Caledonian Mercury (1720–) and Edinburgh Advertiser (1764–) were sampled. The other Scottish papers chosen were the Aberdeen Journal (1748–) and Glasgow Journal (1741–). All 4,120 issues of the Aberdeen weekly were analysed (1748–1826), but the Edinburgh and Glasgow papers, more frequently published from the late eighteenth century, were sampled for years known from other sources to contain suicides. Quantitative analysis of these is more limited because of the observation effect that certain types of suicide could create. The Scottish newspapers were analysed from their inception up to 1826, the year convict William Pollock hanged himself in an Edinburgh gaol and became a celebrated case in both papers and broadsides.⁷ More or less consistently published English provincial newspapers too were an eighteenth-century development. For northern England, the Newcastle Courant (1711–) fulﬁls the criteria of early start, steady publication, and regional readership.⁸ It also had an audience in Scotland to judge from its content and list of agents, as did Edinburgh papers in the north of England. As with all publishers, those of the Courant made lavish claims for circulation: a run of 2,000 was claimed in 1739.⁹ Yet even at half that number, the readership by the most commonly cited multiplier must have been 20,000.¹⁰ Newcastle had three papers in the later eighteenth century and, except brieﬂy, there were no others in the north-east prior to the nineteenth century. Cumberland and Westmorland did not have their own newspapers until relatively late, but the Cumberland Pacquet, or Ware’s Whitehaven Advertiser (c.1772–) published consistently throughout the period of interest. A total of 7,681 numbers of the Courant were analysed, and 2,620 copies of the Pacquet, starting from ﬁrst publication and ﬁnishing in 1824, just after the law on the burial of English suicides was changed. ⁶ R. Harris, ‘Scotland’s newspapers, the French Revolution and domestic radicalism’, SHR 84 (2005), 39. ⁷ NLS L.C. Folio 74, p. 395. Suicide of Wm. Pollock! A Full True and Particular account of the Suicide committed by William Pollock, in the Jail of Edinburgh, yesterday morning, the 20th March 1826, who was condemned to be Executed here tomorrow (Wednesday 22d current) for the Murder of his own wife (Edinburgh, 1826). Further particulars about William Pollock, who hanged himself in the jail of Edinburgh, on Monday the 20th March, 1826, with his dying declaration in a letter to a gentleman the night before his death (Edinburgh, 1826). ⁸ J. Black, ‘The British press and European news in the 1730s: The case of the Newcastle Courant’, Durham County Local History Society Bulletin 26 (1981), 38–43. ⁹ R. M. Wiles, Freshest advices: Early provincial newspapers in England (Columbus, 1965), 97. G. A. Cranﬁeld, The development of the provincial newspaper, 1700–1760 (Oxford, 1962), 171. ¹⁰ Snell, ‘Perceptions of violent crime’, 32.

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The main criterion for selection was an early starting date, meaning that other potentially important inﬂuences on reporting had to take second place. Geographical coverage mattered to selection, given the very different social structure and pattern of economic development in north-east England compared with the north-west, and in the two principal cities of Scotland compared with the north-east Lowlands. The existence of a run of coroners’ inquests covering Whitehaven and area from the late seventeenth century was advantageous, and a similar survival for Berwick-upon-Tweed 1745–1833 informed the decision to examine in addition the Berwick Advertiser from its start in 1811 to 1833. The Newcastle and Cumberland papers had similar political stances, even if their continuous publication arises in part from the ideological divisions within the communities in which they were based, and their consequently lively political atmospheres. In the late eighteenth century the Newcastle Courant was a staunchly conservative paper, whereas its rivals, the Newcastle Journal (1739–) and the Newcastle Chronicle (1764–), were moderate Whig and radical respectively; readership was split along political lines.¹¹ In the north-west, the Pacquet and the Carlisle Patriot (1815–) were Tory papers, while the Carlisle Journal (1798–) was a Whig foundation. A bias towards Tory or pro-ministry papers in England is not necessarily a drawback because most Scottish papers prior to the 1820s were conservativeleaning, if still broadly Whig. More politically conformist than their English counterparts, they avoided dissent, particularly after the Jacobite episode of 1745–6, and espoused a loyalist line thereafter. Some mid-century papers like the Edinburgh Evening Courant were less well-inclined towards the ministry than others; there was some radical press from the 1780s, and the provincial press across Britain became more politically partisan over time. However, political unrest at home and abroad in 1793 and after saw most toeing the government line.¹² The readership of provincial newspapers in the north of England and Scotland was also similar until the Revolutionary and Napoleonic period. From the 1790s the virtual middle-class monopoly of newspaper reading in England was eroded by a growing interest from the lower orders, and by the 1820s and 1830s rising literacy and incomes combined with an increased political awareness to broaden the social base of readership.¹³ Outside the major towns, the market for newspapers in Scotland was more socially restricted than in England, and ¹¹ H. Barker, ‘Catering for provisional tastes: Newspapers, readership and proﬁt in lateeighteenth-century England’, Historical Research 69 (1996), 59. F. Manders, ‘History of the newspaper press in northeast England’, in P. Isaac (ed.), Newspapers in the northeast: The ‘fourth estate’ at work in Northumberland and Durham (Wylam, 1999), 2. ¹² R. Harris, Politics and the rise of the press: Britain and France, 1620 –1800 (London, 1996), 42–5, 82–7. ¹³ D. Read, ‘North of England newspapers (c.1700–c.1900) and their value to historians’, Proceedings of the Leeds Philosophical and Literary Society 8 (1957), 212–13. H. Barker and S. Burrows, ‘Introduction’, in H. Barker and S. Burrows (eds), Press, politics and the public sphere in Europe and North America, 1760 –1820 (Cambridge, 2002), 13–14.

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rapid price rises in the 1790s further circumscribed the spread of readership that was occurring there; the narrower range of advertising in Scottish papers, which had fewer entries offering leisure activities, books, and retail goods, is also indicative.¹⁴ After the wars, readership expanded to skilled artisans and tradesmen in Scotland and there was radicalization after c.1820, with more newspapers being produced, and output of other media like broadsides and chapbooks also rising.¹⁵ The social base of readership may have broadened by 1830, but the target audience remained afﬂuent middle- and upper-rank people, and the choice of content, as we shall see, was used as a mechanism to attract these readers by making a spectacle of social problems.¹⁶ Much of the content of provincial newspapers came from the London press, especially copy about national and international politics and warfare reproduced on the ﬁrst two or three pages. The most distinctive content lay in local advertisements and local reporting under headings such as ‘shipping’ or ‘Domestic/k Occurrences’. Suicide stories in the English papers tended to come at the beginning or the end of the section of local news headed ‘Newcastle’ or ‘Whitehaven’, which in the second half of the eighteenth century comprised about 15 per cent of the papers’ four pages of three columns each.¹⁷ Yet provincial papers hardly considered suicide until the very end of the eighteenth century, and Bob Harris concludes more generally: ‘Provincial and Scottish papers did not exist primarily to provide information about local events’.¹⁸ Newspapers were published more frequently over time and they became longer; with this went a fuller local section and more coverage of suicides by the early nineteenth century.¹⁹ Pickings remain modest: just 214 reports relating to Scotland were gleaned from more than 10,000 editions of the ﬁve newspapers sampled, more than half (119) from the Aberdeen Journal. In sum, 685 separate instances of suicide and attempted suicide were found in local news columns in the 7 papers used (some were reported in more than one newspaper), and a small number of ‘national’ (mostly metropolitan) cases located in the main section of the papers. ¹⁴ Harris, ‘Scotland’s newspapers’, 40–1. H. Mathison, ‘Tropes of promotion and wellbeing: Advertisement and the eighteenth-century Scottish periodical press’, Prose Studies 21 (1998), 206–25. ¹⁵ E. J. Cowan and M. Paterson, Folk in print: Scotland’s chapbook heritage, 1750 –1850 (Edinburgh, 2007). W. Donaldson, Popular literature in Victorian Scotland: Language, ﬁction and the press (Aberdeen, 1986). P. Chassaigne, ‘Popular representations of crime: The crime broadside –a subculture of violence in Victorian Britain’, Crime, Histoire & Soci´et´es 3 (1999), 23–55. L. Shepherd, The history of street literature (Newton Abbot, 1973). M. Vicinus, The industrial muse: A study of nineteenth century British working-class literature (London, 1974). ¹⁶ D. McNeil, ‘The spectacle of protest and punishment: Newspaper coverage of the Melksham weavers’ riot of 1738’, Media History 7 (2001), 72. ¹⁷ Manders, ‘Newspaper press’, 2. J. Styles, ‘Print and policing: Crime advertising in eighteenthcentury provincial England’, in D. Hay and F. Snyder (eds), Policing and prosecution in Britain, 1750 –1850 (Oxford, 1989), 55–111. ¹⁸ Harris, Politics and the press, 82. ¹⁹ R. Harris, ‘England’s provincial newspapers and the Jacobite rebellion of 1745–6’, History 80 (1995), 5–21.

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7 . 2 R E P O RT I N G S U I C I D E I N T H E E N G L I S H P R E S S : M O R A L M E S S AG E S I N T H E E N L I G H T E N M E N T

7.2a Trends over time People potentially learned more about suicide from newspapers than from other media such as broadsides, chapbooks, or pamphlets, yet Figures 3 and 4 show that they learned little and late.²⁰ Runs of months or even years during the eighteenth century are innocent of suicides, distancing the north of England from the south-east, where references appeared ‘several times a week’.²¹ It was not until the 1750s that reporting was anything other than occasional in the Newcastle Courant and not until the 1790s that it became a regular feature of local news for that paper (Figure 3). The Cumberland Pacquet reported suicides from its inception: 18 cases from 1774–79 have been omitted from the graph because a full decade is not available (Figure 4). In both ﬁgures the data from the 1820s is truncated and has not been included. This meant ignoring sixteen cases for the Courant and six for the Pacquet. On average after 1800 suicides appeared in one out of eight for each of the northern-English weekly papers. In the whole ﬁfty years of the Pacquet the ratio is one in eleven. Where Esther Snell has estimated that 30 per cent of reportage in the Kentish Post was given over to crime reporting, accounts of suicide may never have amounted to 1 per cent in the northern English newspapers studied here.²² Newspapers occasionally drew attention to suicide as a general problem in periods of heightened social and moral awareness. ‘It will hardly be credited in other places, and we are sorry to aver it, That no less than ﬁve acts of suicide have been committed in this county, within the last fortnight.’²³ This story from the Pacquet in 1788, showing the observation effect sometimes found in reporting, came out of a central government campaign. The Pacquet noted in the following month that one of the county coroners had sat on twelve suicides between Easter and Midsummer sessions, the other on three. ‘It is besides suspected that many accidental deaths occur, which are not communicated to the coroners. It is highly necessary for the public to know, That the quarters or townships, neglecting to give notice of such deaths to their respective coroners, are liable to be amerced at the assizes, or courts of record in Westminster; and it is determined to make some examples, for the general good of His Majesty’s subjects.’²⁴ A climate of legislative pressure or moral concern could result in an ‘epidemic’ being pronounced, as in 1791 when, after reporting six regional cases and more from ²⁰ ²¹ ²² ²⁴

Snell, ‘Perceptions of violent crime’, 36–41. MacDonald and Murphy, Sleepless souls, 303, later clariﬁed as London papers. Ibid., 305. Snell, ‘Perceptions of violent crime’, 2, 71–2. ²³ CP 716 (2 July 1788). CP 723 (20 August 1788).

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N

60 50 40 30 20 10 0 1710 1720 1730 1740 1750 1760 1770 1780 1790 1800 1810 decade

Figure 3 Distribution by decade of suicides from the six northern counties in the Newcastle Courant, 1711–1819 Cumberland Pacquet, 1780-1819 70 60

N

50 40 30 20 10 0 1780

1790

1800

1810

decade

Figure 4 Distribution by decade of suicides from the six northern counties in the Cumberland Pacquet, 1780–1819

round the country in the previous twelve months (the item was supported by a Bristol example), the Pacquet pronounced in July 1791: ‘The progress of suicide, in this country, affords an alarming consideration to every reﬂecting mind’.²⁵ Yet, on balance, regular reporting hardly contributed to the notion that suicide was ‘a daily occurrence’ or ‘commonplace’ and newspapers remarked on it to pathologize, not normalize, its alleged frequency.²⁶ On the surface, accounts of suicide were brief and factual. Newspaper reports were short, amounting in 80 per cent of cases to less than 100 words; the longest ²⁵ CP 874 (12 July 1791).

²⁶ MacDonald and Murphy, Sleepless souls, 303, 305.

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regional report was 330 words.²⁷ Reports gave all or some of the following information: name and residence of the dead person; information about their circumstances such as their marital status or whether young or old; means of death; a suggested cause; an inquest verdict. Longer entries give little extra material about the state of mind or the circumstances of the individual. Instead they were ﬁlled out by forensic detail about the death culled from the inquest verdict. This might include a description of the instrument of death, the position in which the body was found, and how furniture was placed. The following complete entry from the Courant of 1804 affords an example. ‘On Sunday morning last, Anthony Forster Esq. of Berwick upon Tweed, was found dead in his bed at Jardin Field, in Berwickshire. An unloaded pistol was lying near him which, it is supposed, had been discharged within his mouth, as his head was literally shattered to pieces. The body was buried in Berwick Church Yard on Wednesday.’²⁸ Newspapers made news as well as reporting it, and this chapter uses both quantitative measures and qualitative discussion to examine how suicide was made to look in the Georgian press. It follows Kathleen Wilson’s line. ‘Newspapers were . . . central instruments in the social production of information: Both representing and verifying local experience, they refracted . . . events into socially meaningful categories and hierarchies of importance, bestowing order on the disordered and coordinating the imagination of social time and space.’²⁹ In particular, ‘the accessible ‘‘universal’’ identity cultivated by newspapers was in fact a particular one that recapitulated the self-representations of the urban upper and middle classes’.³⁰

7.2b Fact and truth in the making of news: the social and spatial selectivity of reporting Early and mid-eighteenth-century papers selected the sensational and then sensationalized it further, carrying on the seventeenth-century ‘gallows’ genre of strips and small pamphlets. An example is a Newcastle washerwoman called Susannah Nicolson, who in October 1763 used a small knife to ‘cut off her ²⁷ This accords with Snell’s deﬁnition of ‘short’ as ‘less than ﬁve full lines in length’. Snell, ‘Perceptions of violent crime’, 63. With the exception of the death of Castlereagh, no suicide report in any of the papers consulted was longer than Snell’s ‘medium’ category: ‘between ﬁve full lines and less than one full column in length’. Suicide reports had never been anything except short, even in the early eighteenth century, whereas in The Kentish Post short crime stories rose from about 20% of all crime reporting to 60% c.1730–1770, and the very few long stories of more than a column dried up over time. Ibid., 138–42. It is hard to square this with the claim that ‘[l]ong stories described in vivid and affecting detail’ Georgian suicides. MacDonald and Murphy, Sleepless souls, 303. ²⁸ NC 6656 (5 May 1804). ²⁹ K. Wilson, The sense of the people: Politics, culture and imperialism in England, 1715 –1785 (Cambridge, 1995), 40. ³⁰ Ibid., 41.

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nose, and both her ears, the upper eyelids of both eyes, most part of the under lip and part of the upper; she also cut about four inches across her throat, and also cut off part of both her breasts’ before stabbing herself.³¹ Prominently featuring criminality and evisceration, early newspaper reporting of suicides in the northern English papers was exotic in being either physically shocking or non-local. The transition from personal to vicarious knowledge and from silence about suicide to regular but infrequent inclusion was marked by a phase of sensationalist reporting, not by a quick change to the ﬂat neutrality suggested by Foucault. Yet it will become clear that lurid mid-eighteenth century reports carried a moral message as much as did their more sober successors. Editors continued to seek out the bizarre and the macabre in George III’s time, but as reporting increased in frequency it became more subtly selective and didactic too. By comparing systematically newspaper reports with surviving coroners’ inquests, the level and type of selectivity can be assessed, and the social inﬂuences on what was included or excluded made clear. This disaggregated analysis shows that elites could write their own deaths, while their inferiors had to rely on what credit they or their relatives had in local communities to determine how their ends were portrayed. The remainder of the chapter offers an aggregative analysis of the nature of reporting and a close qualitative discussion of the wording and tone of entries for, however brief, each word conveyed a wealth of meaning. Beneath the surface of apparently neutral fact, northern English newspapers offered textured accounts of suicide as moral issue and social problem. Parts of Northumberland and Cumberland have runs of inquests in local archives, and these were compared with newspapers from their area. A total of 184 sudden deaths (149 male and 35 female) were investigated by the coroner of Berwick-upon-Tweed between 1745 and 1833.³² Of these, twenty-eight were found to be suicide, of which twenty-one were males and seven females; four were deemed felo de se. Of the males, nine cut their throats, seven hanged themselves, four shot themselves and one drowned; four of the women hanged, two poisoned themselves and one drowned. The ﬁrst twenty-two years of the Berwick Advertiser were compared with Berwick-upon-Tweed coroner’s records. During this period (1811–33) the inquest found six deaths by suicide while the newspaper reported seventeen. Of the latter, ﬁve took place in Scotland and six in England outside the jurisdiction of Berwick’s coroner. Of the six inquest deaths by suicide only three can be traced in the coroner’s records and the newspaper, and three were never reported as news items in the Advertiser, but a further two suicides are reported as the outcome of inquests that have not survived, the latter unusually full accounts that suggest the newspaper obtained the inquest papers. This small sample shows both the selective reporting in early nineteenth-century newspapers and the uneven survival of coroners’ inquest papers. ³¹ Sykes, Local records, vol. 1, 242–3.

³² BRO C/C14/1–11.

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The Pacquet too was selective in its coverage. Between 1774 and 1824 inclusive 236 suicides were reported. During the same period 52 inquests were held by the earl of Egremont’s coroner for part of west Cumberland. Of these, twenty-nine were never reported in the newspaper (or in the Carlisle Journal, which started publishing in 1798); four feature in the ‘Deaths’ section of the Pacquet without any indication that they were suicides; nineteen were reported in the newspaper. The suicides that were never acknowledged as such in print are the easiest to explain by their high status. One example is: ‘Wednesday last, at Portinscale near Keswick, Miss Harriman of that place, in the prime of life’.³³ She was Dinah, the 37-year old daughter of a gentry family who hanged herself.³⁴ All coroners’ inquests had personally to view the body of the deceased, making all investigated corpses equally visible. Yet the bodies of those whose survivors were unable to control their subsequent visibility became the object of reporting in a public transcript that opened them up to further scrutiny at second hand. Some stories offer enough detail to infer how the presentation of a death was negotiated. The Pacquet reported that the body of Elizabeth Waller, aged around 21 years, was found in Whitehaven harbour. The coroner’s inquest returned a verdict of ‘Accidental Death, supposed by drowning’. The newspaper established her social credentials. She came ‘of credible parents, was very well dressed and care was taken to have her decently interred’. To scotch rumours of wrongful death, the Pacquet went on to note: ‘as is common in such melancholy cases, where no certainty can be come as to the cause of death, many reports have been spread, all of them conjectures which do not, on examination, appear to merit the least regard’.³⁵ Elizabeth died alone, but she took to her (respectable) grave a store of ‘cultural capital’ that was both her own and her family’s. Together, their patronage connections and their relationship with ‘formalized community organisations’, as well as their reputation within the community, helped to secure a story which protected that capital.³⁶ Elizabeth’s well-dressed body spoke for itself in the micro-political arena of the coroner’s inquest, even when laid out lifeless on a table, for clothes were a sort of vocabulary. But it also had the silent advocacy of her parent’s ‘credibility’ or reputation in the community, and the more vocal inﬂuence of family and friends when presenting the public face of her death, for family and friends were expected to lobby inquests. Two-ﬁfths of Cumberland suicides subject to inquest were included in the Pacquet and three-ﬁfths omitted. Understanding omissions involves combining the ‘negotiated’ reporting of Elizabeth Waller with the ‘diverted’ reporting of Dinah Harriman. Those reported were eleven men and eight women, generally single people who were either young (late teens and twenties or simply described ³³ CP 985 (27 August 1793). ³⁴ CRO D/LEC/CRI/102/3. See also CP 1079 (16 June 1795). CRO D/LEC/CRI/104/4. CP 1483 (15 March 1803). CRO D/LEC/CRI/112/7. CP 1599 (4 June 1805).CRO D/LEC/CRI/ 114/4. CP 2067 (24 May 1814). CRO D/LEC/CRI/123/4. ³⁵ CP 13 March 1777. ³⁶ Horden, ‘Household care’, 22.

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as ‘young’) or old. A good example is the 82-year-old widow, Jane Bready, who hanged herself with a garter and apron strings in a kitchen at Workington in August 1802. Described in depositions as a cheerful woman in her earlier life, ‘her son’s failure’ made her increasingly ‘lowspirited and dull . . . in a low desponding way’ and ‘she had of late lost her memory’.³⁷ Omissions resemble those whose families managed to get them removed to the section of routine deaths: they are of middle-aged, middle-rank married people of both sexes (sixteen men and thirteen women). Whether families exerted direct pressure on publishers or whether editors decided independently what readers wanted, the resulting social selectivity is plain. Broadening out from these detailed studies, the usually low-status individuals reported were made to carry messages about Georgian society’s problems. Something as apparently neutral as the location of suicidal deaths shows this, for residence was used to convey social rank and moral meaning. Reported suicide was overwhelmingly regional, and within regions it leant towards urban examples. Location is not given for 16 of 235 regional cases reported in the Courant. Of the remainder, 61 per cent were from Northumberland (134), 30 per cent from Co. Durham (65) and a handful each from Yorkshire (12), Cumberland (6) and Lancashire. From outside the six northern counties just thirteen suicides were reported. The Courant’s coverage is also disproportionately urban. Some fortynine cases were from Newcastle and twenty-three from Sunderland, with other towns like Berwick (ten) and Durham (eight) contributing smaller numbers. In all, nearly 60 per cent of reported instances came from communities classed as cities or market towns in John Adams’ Index Villaris (1680), all of which had 5,000 or more inhabitants in 1801.³⁸ Where the Courant covered the north-east, the Pacquet dealt mainly with the other side of the Pennines. Just 7 suicides reported in the Pacquet have no geographical label on them, and of the remainder 184 were from Cumberland and Westmorland (80 per cent); 17 happened in Lancashire, 14 in Northumberland, 8 in Durham, 4 in Yorkshire and 2 on the Isle of Man. Only seven cases were not from the six northern counties. The Pacquet’ s reporting was less urban, but so too was its catchment area. Carlisle (twenty), Whitehaven (eighteen) and Penrith (thirteen) are the towns with the most suicides reported, the total proportion urban still being 24 per cent. These ﬁgures show that, even in the late eighteenth and early nineteenth century, newspapers purveyed the impression that suicide occurred mainly in towns and especially their labouring or industrial areas, a perception that Olive Anderson has identiﬁed as a canon of belief for the Victorians.³⁹ ³⁷ CRO D/LEC/CRI/111/4. CP 1452 (10 August 1802). ³⁸ J. Adams, Index villaris: or, An alphabetical table of all the cities, market-towns, parishes, villages, and private seats, in England and Wales (London, 1680). ³⁹ O. Anderson, ‘Did suicide increase with industrialization in Victorian England?’, P&P 86 (1980), 149–73.

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Table 5 Occupation or status of attempted and successful suicides reported in the Newcastle Courant, 1733–1824 and Cumberland Pacquet, 1774–1824 Newcastle Courant status gentleman Mr(s) professional military ofﬁcer soldier shipmaster sailor craft/trade farmer servant poor labourer prisoner total

Cumberland Pacquet

N

%

N

%

2 8 3 1 8 6 8 45 7 25 19 20 5 157

1 5 2 1 5 4 5 29 4 16 12 13 3 100

4 9 2 2 9 1 5 50 11 15 12 8 10 138

3 7 1 1 7 1 4 36 8 11 9 6 7 101

Note: ‘Labourer’ includes keelmen, pitmen, common carrier, news carrier, ‘itinerant sow gelder’; ‘poor’ includes paupers, pensioners, inhabitants of workhouses; ‘servant’ includes butlers, footmen, grooms, apprentices; ‘military’ includes all who did not hold a commission; ‘professional’ includes clerks, ministers, medical men, lawyers; ‘farmer’ includes yeomen, husbandmen, gardeners; ‘Mr’ includes ‘respectable’ or ‘respectable looking’. Attempted suicides comprised 26 of the Newcastle cases and 27 of the Cumberland ones, equally divided between the sexes.

Seen in aggregate, reporting was socially selective too. The crafts and trades are humble ones: butchers, dyers, joiners, smiths, stable-keepers, and weavers ﬁgure prominently. The category ‘Mr’ has been used when no other addition is given. By this period it had become an honoriﬁc title and was used, to take two examples where an occupation was also given, of a farmer and a hop merchant in the Cumberland paper. The word ‘poor’ invites two interpretations: one expressed pity, the other economic marginality. When additional information is given it invariably reinforces the latter and, even without an occupation, the place of residence of the dead person tells as much: Newcastle’s Sandgate, Quay or Back Row; Gateshead, then to Newcastle what Southwark was to London; the sailing and coal-loading communities of Tynemouth and North and South Shields. Even without explicit information about status, the reports could use dwelling place to alert readers who knew the quarters of the major towns and the economic make-up of the lesser ones.⁴⁰ Locating suicides in space ⁴⁰ The same was true of reporting in the late-eighteenth-century Hibernian Journal, where most suicides were from the poorest part of Dublin, the Liberties. B. Henry, Dublin hanged: Crime, law enforcement and punishment in late eighteenth-century Dublin (Dublin, 1994), 38.

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made them carry more, rather than less, social resonance, the person’s residence suggesting a humble station and a manual occupation, poor housing, straitened circumstances, and consequent moral weakness. What seem to modern eyes mere topographic identities were for contemporaries endowed with strong moral equivalence as newspapers spoke to subtle, everyday associations between speciﬁc localities and generalized socio-economic problems. Readers found comfort in imagining suicide and other social deviances in physically removed places or dangerous margins, just as they selectively allocated it to liminal elements of society, creating a moral geography of status and space. The few verdicts of felo de se reported in northern English newspapers were an extreme version of this distancing as they came out of inquests on criminals, single female servants, or people who in some other way stood apart from their community (see 3.4). Virtually all the reporting of suicide was ﬁrmly located in readers’ mental map of parish, village, town, county, and region. Non-local reporting signposted the outlandish, and none more so than London. It is, of course, well known that provincial papers borrowed heavily from metropolitan sheets. Many knew London personally as well, and Tony Wrigley has famously estimated that one English person in six may have had experience of living there in the century 1650–1750.⁴¹ Because of the coal trade, the north-east had particularly strong ties with the metropolis, and provincial newspapers were available in London because of the commercial information they contained. Yet the way events in London were reported distanced provincial from metropolitan life. To claim that reading about London made provincial people resemble, or approve of, London is mere supposition.⁴² ‘Borrowing’ was selective, and adaptation creative rather than passive, reporting tailored to provincial interests and aspirations. The message readers got was that odd things could happen to those who went to London or anywhere else far away. In the words of Henry Fielding’s Joseph Andrews: ‘London is a bad place’.⁴³ Thus in 1812 Mrs Ann Potts, formerly of Newcastle, hanged herself in London. A young widow with four children, her brother blamed the suicide on her following a Baptist minister and studying so much she hardly ate.⁴⁴ Some reports (this one lifted from Freeman’s Journal) were about national political ﬁgures like Lord French, who shot himself with a pistol in his son’s lodgings at Dublin Castle: ‘The failure of his banking concerns led to this shocking catastrophe’.⁴⁵ Some were tinged with illicit (and exotic) romance. In 1810 the Courant told readers about Mr Dugard, a French naval pilot, who shot his wife through the heart in a ﬁt of jealousy and then shot himself. It happened at Plymouth: ‘Mrs Dugard was a native of that town, very handsome ⁴¹ E. A. Wrigley, ‘A simple model of London’s importance in changing English society and economy, 1650–1750’, P&P 37 (1967), 44–70. ⁴² MacDonald and Murphy, Sleepless souls, 301. ⁴³ H. Fielding, Joseph Andrews (London, 1742), I.6. ⁴⁴ NC 7059 (25 January 1812). ⁴⁵ NC 7210 (16 December 1814).

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and much younger than her husband’.⁴⁶ Under the heading ‘MURDER’, the same paper reported an army ofﬁcer stationed in Portugal who entered into a suicide pact with a woman who could not leave the man she was with: he shot her then cut his throat, but lived and was being tried for her murder in London.⁴⁷ The Dugard story was unusual, perhaps even glamorous, but it was also dangerous, and foreign stories were deployed to moralize through shocking contrast. ‘A gentleman at Paris, who lately took a fashionable leave of the world by applying a knife to his throat, left a paper beside him, as his last will and testament: it contained the following words: ‘‘I give my money to my enemies, my body to the earth, and my soul to the devil.’’ ’⁴⁸ For the Pacquet, a Nottingham suicide of 1814 was yet another ‘melancholy incidence of the Jacobinical mania’, a reference to French ‘extremists’.⁴⁹ In short, non-regional examples were chosen for their peculiarity, useful as examples of how people ought not to behave. Like famous trials, famous suicides informed about law and attitudes, but the understandings created were not representative of society’s usual responses to such events.⁵⁰ Donna Andrew has shown that attacks on aristocratic morals, increasingly frequent from the 1770s, tried to link a range of pathologies with the upper classes: duelling, gambling and adultery as well as suicide.⁵¹ Rather than aping their betters the middling ranks sought instead to use them as markers of the unacceptable.⁵² The reporting of London suicide, where the dead were usually men in public life and society (like the extensive coverage of the earl of Castlereagh in August 1822), reinforced this social dimension. That of local people in the provincial papers was quite different. The Courant reported 105 female suicides (attempted or successful), including 3 where the woman took an infant or child with them, and 130 male, giving a sex ratio of 124. For the Pacquet the ﬁgures are 84 (with 2 multiple suicides) and 152 male and a sex ratio of 181.⁵³ The reporting of Cumberland inquests, which show a sex ratio of 127, is gendered towards men, though because the paper’s catchment area was wider than the jurisdiction of the single franchisal coroner, this is not an exact comparison. The Berwick-upon-Tweed ratio is 300, and most published studies of inquests suggest 200–300, giving Cumberland (and early modern Cheshire) very low sex ratios.⁵⁴ This is an intriguing ﬁnding ⁴⁶ NC 6973 (2 June 1810). ⁴⁷ NC 7207 (25 November 1814). ⁴⁸ CP 651 (4 April 1787). ⁴⁹ CP 2091 (8 November 1814). ⁵⁰ A. E. Simpson, ‘Popular perceptions of rape as a capital crime in eighteenth-century England: The press and the trial of Francis Charteris in the Old Bailey, February 1730’, LHR 22 (2004), 27–70. ⁵¹ D. Andrew, ‘ ‘‘Adultery a` la mode’’: Privilege, the law and attitudes to adultery, 1770–1809’, History 82 (1997), 5–23. ⁵² MacDonald and Murphy, Sleepless souls, 309–10. ⁵³ For comparison the Hibernian Journal reported 82 suicides 1780–95. Of these, 46 were male and 35 female (the sex of one person is not given), giving a sex ratio of 131. Henry, Dublin hanged , 38. ⁵⁴ Walker, Crime, gender and social order, 144–5.

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since the four northern counties (and Cornwall) had much higher proportions of women among those formally prosecuted for crimes than in the rural south-east, suggesting a greater willingness in these regions to subject females to the law.⁵⁵ It is possible that the sex ratios in reporting represented the ‘epidemiology’ of suicide, and that what was different about the north was the attitude towards responsibility, perceived to be the same for both sexes. Gendering is clearer in attributions of cause. Some ﬁfty-three reports in the Pacquet mention a reason, plus a further fourteen instances where the paper went out of its way to indicate that no cause could be fathomed. Apart from four cases of excessive drinking and four mentions of poverty, the remainder fall into two broad categories: crime and emotional upset (including the shame of pregnancy). Of twenty-one cases where shame for a crime or fear of punishment was given as the supposed cause, ﬁfteen were males and six females, compared with just ﬁve men among twenty-three instances where bereavement, family discord, seduction, love, or break-up of a relationship is cited. The Courant posited a reason for ﬁfty-seven reported cases and a further nine occasions when no cause could be determined; criminal guilt was equally attributed to seven men and seven women; emotional problems afﬂicted eighteen women and seven men; one each of drink, fever, poverty and religion make up the remaining instances for women, and ten poverty cases, three drinkers, and a fever for men.⁵⁶ Constructions of female suicide focused on problems in personal relations, but the nexus of the family rendered seemingly private issues matters of public signiﬁcance. The family provided external support as well as bolstering selfdiscipline through a sense of order, conformity, and responsibility: the suicide of a husband or wife was an assault on the family’s collective identity.⁵⁷ Stories afﬁrmed family values, both by occasional positive accounts that made a survivor guiltless and in more common negative ones that showed the adverse effects of familial dysfunction. In the case of respectable people, the suicide was distanced from the family—as when stating of the husband of a woman who killed two of her children then cut her own throat: ‘Mr Graham has always proved himself a kind and affectionate husband.’⁵⁸ External forces might be needed to explain the unhappiness of the otherwise normal. For example, Dorothy Young of Sunderland hanged herself behind her door, where she was found by her husband, a sailor. ‘They had always apparently lived very happily together; and it is feared that a mistaken religious melancholy caused this rash act.’⁵⁹ ⁵⁵ King, Crime and law, 68, 214–18 ⁵⁶ The Hibernian Journal’s reporting suggested that most women killed themselves because of problems in their relationships with men. Ibid., 38. ⁵⁷ F. E. Dolan, Dangerous familiars: Representations of domestic crime in England, 1550 –1700 (London, 1994), 142, 154. MacDonald, Mystical bedlam, 128–31. ⁵⁸ GJ 4594 (April 1817), quoting the Carlisle Patriot’s account of a coroner’s inquest from Cumberland. ⁵⁹ NC 6824 (25 July 1807).

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Linking men and women together were the associations and protections perceived to come from ﬁdelity, ﬁnancial stability, and affection, within a narrowly conceived vision of a family. Mr Andrews, mercer and draper in Maryport ‘who had for some time laboured under a melancholy’, cut his throat while washing and while his wife was standing behind him ‘endeavouring to raise his spirits’. His death was a tragedy, for he was ‘much respected by all who knew him, as an active honest tradesman’.⁶⁰ The circumstantial detail—the wife literally as well as metaphorically behind him in a supportive role—added to the pathos, while explicitly moralizing about a home-based, supportive role for women. Newspapers extended a moral franchise to those displaying the social values of rationality, responsibility, industry, and patriarchy.⁶¹ Similar points could be made negatively by the more frequent reports of personal and familial failure. A textured account of the corrosive effect of poverty comes in the case of David Veitch, 65, a cooper formerly employed by the Victualling Ofﬁce, London, but residing in Berwick at the time of his suicide. He ‘took the advantage of his wife’s absence to receive the pittance allowed for their support by the parish’ to hang himself. His wife said he had shown mental derangement for many years, ‘but it is supposed that the pressure of immediate want, and the threatening prospect of being obliged to go into the poor-houses, ﬁnally urged him to this sure but desperate expedient of putting a period to all his worldly miseries’.⁶² Dependent and destitute, Veitch had let himself and his wife down. An account which blends the effects of poverty with an implied disapproval of marital break-up told the story of William Thompson of Love Lane, Newcastle, 52, who hanged himself in his house. He had been ‘very melancholy, probably occasioned by his extreme poverty, two or three potatoes, and an onion, being the only articles of provision found in the house’. Formerly a master mariner, he had lately eked out a living as a furniture broker ‘where he failed in business a short time since. He has left a widow (who recently was separated from him) and two children.’⁶³ The point of these two stories was not the obvious one that poverty or marital break-up could provoke suicide, but that people who became poor, or whose marriages dissolved, were the sort who killed themselves. Much newspaper reporting of suicide in the north of England was not a dispassionate, or even sympathetic, rendition of a human failing, but a calculated, didactic dissection of society’s perceived weaknesses. When properly set in context, the apparently benign vocabulary used to leaven stories is clearly seen for its negativity. Some judgements are plain enough, like describing selfmurder as ‘horrid’. ‘Rash’ is similarly reproving, with undertones of a ‘hasty, impetuous, moody or obsessed state of mind’: Aristotle pointed out that courage ⁶⁰ NC 5681 (27 August 1785). ⁶¹ ‘An essay on government’, in T. Ball (ed.), James Mill: Political writings (Cambridge, 1992). ⁶² NC 6571 (18 September 1802). BRO C14/6. ⁶³ NC 7150 (16 October 1813).

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depended on separating fear and rashness, whereas suicide involved compounding the two.⁶⁴ Meanwhile, ‘desperate’ implied a loss of religious faith that reinforced the idea of moral reprobacy.⁶⁵ Nor did medicine own the term ‘melancholy’, which could also mean sad or lamentable. ‘A man upwards of sixty years, and in his third marriage, hanged himself. It is melancholy to observe the rapid progress which the detestable crime of suicide is making in this country.’⁶⁶ Other words that seem sympathetic have equally complex connotations. Just as ‘poor’ can be construed as compassionate, descriptive, or judgemental, an adjective like ‘unhappy’ should not always be read in its twentieth-century meaning. Sometimes it has psychological associations like ‘wretched in mind’, but more often it retains early modern connotations of ‘bad’ ‘troublesome’, ‘unfortunate’, or ‘mistaken’.⁶⁷ The balance of probability might swing the other way if reports without evident moral commentary are treated as positive. Perhaps Foucault is correct to believe that when no obviously value-loaded terms are used, the matter-of-fact tone of reporting helped to create an impression of normality.⁶⁸ Yet even if some accounts are detailed and others record only names, places, and verdicts, they are not merely factual, and negative moral commentary could be woven into apparently incidental detail such as the means of death. A detailed report told how Hugh Christian of Ballachree, Isle of Man, hanged himself with a bridle while his blind father was in the same room. Aged 46, unmarried, and in good circumstances, it was thought that the outcome of a law suit meant he took ‘this solitary method of consoling himself’. The verdict in Manx was ‘Ve blebbin’—‘He was a fool.’ ‘This differs from the terms generally employed in these kingdoms, on such horrid occasions; but the unqualiﬁed expression of a Manks [sic] Jury conveys as just a sentiment of the cause, and an idea something more abhorrent of the fact.’⁶⁹ The paper used the word ‘fool’ pointedly (blebbin was a simpleton, not a lunatic), and it picked out ‘the singularity of the instrument’ of death because halters or bridles signiﬁed submission and also carried undertones of betrayal in the symbolic language of early modern England.⁷⁰ Rather than portraying a dutiful son who stayed on to care for a disabled relation, the story told readers that Hugh was the dependent one who abandoned his father by a selﬁsh and ungrateful act. ⁶⁴ Moore, A full inquiry, vol. 1, 25–31. Aristotle, Ethics, book 3, ch. 9. ⁶⁵ As noted by a late Victorian piece on the way suicides were described. Daily Chronicle (19 August 1893), p. 4. Anderson, Suicide, 215. ⁶⁶ AJ 1266 (14 March 1774). ⁶⁷ OED. ‘He [Maddox, an assize clerk] was an unhappy sot, and last week [February 1770] shot himself through the head.’ J. Harris (ed.), A series of letters of the ﬁrst earl of Malmesbury, his family and friends from 1745 to 1820 2 vols (London, 1870), vol. 1, 192. ⁶⁸ Snell, ‘Perceptions of violent crime’, 79. ⁶⁹ CP 751 (4 March 1789). ⁷⁰ Robson, English highland clans, 157. A. Wood, ‘ ‘‘Poore men woll speke one daye’’: Plebeian languages of deference and deﬁance in England, c.1520–1640’, in Harris, Politics of the excluded, 67–98, at 79–80. Kesselring, Northern rebellion, 118. G. Morgan and P. Rushton, ‘Visible bodies: Power, subordination and identity in the eighteenth-century Atlantic world’, Journal of Social History 39 (2005), 39–64.

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What seems incidental was seldom without meaning. By the same token, what appears superﬂuous—stating that the cause of suicide was unknown—was used to make a point about dependency and authority. For example, in 1789 ‘an old man, in the poor house of Alemouth [Alnmouth], put an end to his existence, without any cause of complaint assigned’.⁷¹ The reputation of the managers and keepers of the poor house had to be protected in this instance, that of a master when William Barton or Barlow, a 21-year-old apprentice plasterer, cut his throat in November 1815. The Berwick Advertiser recorded the lunacy verdict, but added that no one could ﬁnd a cause ‘for his desperate and unjustiﬁable conduct’.⁷² Inexplicability itself was a value judgement that shifted the burden of blame onto the suicidal person, for it was important to show that no guilt attached to important members of families, employers, or staff of institutions, the latter portrayed in loco parentis in the proffered familial image of poorhouses and asylums. Saying there was no explanation was as much an argument as was an explicit attribution of cause. Far from normalizing or trivializing suicide, newspapers located it in social and ethical context, conveying moral truth rather than merely literal facts. Terse and one-dimensional, reporting may (pace Foucault) have lacked social depth, but it made up for this with profound social meaning, exempliﬁed in an apparently neutral fact such as residence.⁷³ Moral commentary was sometimes subtle, but, far from being ‘reduced to a minimum’, it was the main purpose of suicide reporting.⁷⁴ Behind the apparently value-neutral language of occasion and causation lay value-loaded undertones of personal failure and social fracture. Readers of these papers had probably been educated well into their teens. Postelementary education focused on Latin, meaning that they were trained in how to study content and form to discover the moral teaching concealed in the factual shell of this and any other type of literature.

7.2c Rhetoric, gender, and the limits of sympathy in the Enlightenment Even if they relied mainly on coroners’ inquests and told a similar story about the bare facts of suicidal death, English newspaper narratives were qualitatively quite different from their judicial source. At one level the reporting might be pure invention, and extensive reading makes it easy to pick out the apparently apocryphal. In 1805 the Courant offered a story that had appeared more than once before in its pages. ‘A gentleman at Dublin lately drowned himself, from an apprehension that he should want the necessaries of life in his old age. In order to accomplish his purpose, and to make himself heavier, he put six hundred guineas ⁷¹ NC 5874 (9 May 1789). ⁷² BA 411 (11 November 1815). ⁷³ Foucault, Discipline and punish, 59–69. ⁷⁴ MacDonald and Murphy, Sleepless souls, 316.

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into his waistcoat pocket’.⁷⁵ Every few years a newspaper reported that someone had killed themselves after being invited jokingly or semi-seriously to do so by someone close.⁷⁶ This seems to have had its origin in the early eighteenth century at the latest, when C´esar de Saussure recounted how ‘one of my friends’, tired of an eccentric servant’s threat to hang himself, offered him sixpence to buy the rope—whereupon he did so.⁷⁷ The anecdotal and the apocryphal are obvious. Yet prolonged immersion in Georgian papers makes it clear that reporting followed more subtle but equally predictable rules. Both in the internal framework of stories and in the sorts of issues discussed, papers adhered to the canons of Aristotelean rhetoric. A story or its teller required pathos (affective persuasion) along with ethos (a statement of authority or moral competence) and logos (logical appeal founded on facts). These rules of rhetoric were carried through millennia in many forms, including the writing of thirteenth-century sermons, and were modiﬁed by Renaissance humanists to re-appear in selectively nuanced examples of virtuous (female) suicide in sixteenth- and seventeenth-century writings. Martin Luther offered an example when he pronounced on ‘a young girl who, to avoid violence offered her by a nobleman, threw herself from the window, and was killed. It was asked, was she responsible for her death? Doctor Luther said: No: she felt that this step formed her only chance of safety, it being not her life she sought to save, but her chastity’.⁷⁸ Other tropes in the late-Georgian press are also reminiscent of earlier types: not only seventeenth-century ballads, but also Jacobean drama, which used suicide as ‘the deﬁnitive theatrical image’ for female virtue and passionate love.⁷⁹ For example, in Thomas Middleton’s The second maiden’s tragedy (1610–11), the moral legitimacy of suicide is elided: Govianus does not object to the Lady’s decision to kill herself on moral grounds, but he frowns on the adulterous Wife’s presumed suicide.⁸⁰ Similarly, in Asylum veneris (1616), a text juxtaposing misogynist and philogynist viewpoints, female suicide is presented as legitimate when it is wholly selﬂess. To illustrate the continuity, one example from classical times is a woman who offered to join in a suicide pact with her husband to end his suffering. Yet even here there is a clear statement that such a rariﬁed act of female virtue required a level of breeding and sensibility. The wife, ‘for the easing of his life, abandoned hir owne. But this was a Woman of meane ranke, ⁷⁵ NC 1599 (4 June 1805). The idea of transforming riches into the cause of death appears in earlier suicide stories, such as that of Fanny Braddock in 1731. MacDonald and Murphy, Sleepless souls, 317–18. ⁷⁶ For example GJ 545 (6 January 1752); 1549 (June 1771). ⁷⁷ Saussure, A foreign view of England , 200–1. ⁷⁸ Hazlitt, Table talk, 303. ⁷⁹ R. Wymer, Suicide and despair in the Jacobean drama (Brighton, 1986), 156. ⁸⁰ S. Zimmerman, The early modern corpse and Shakespeare’s theatre (Edinburgh, 2005), 121.

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and amongst such, it is not so strange a thing to see now and then some traces of extraordinarie goodnesse’.⁸¹ The conventional picture of women in literature during the Enlightenment is that they were on the path from viragos to virgins. ‘No longer the terrifying beast depicted in seventeenth-century popular literature and not yet the ‘‘angel of the house’’ depicted in nineteenth-century texts, women ascended from ghetto to pedestal eventually became guardians of religion and morality.’⁸² Yet from the sixteenth to the eighteenth century there was a vein in literature that allowed for the nobility of acts of self-sacriﬁce to protect virtue and morality, both of the passive victim (‘virtuous, emotionally bereft, and abandoned or betrayed by her lover’) and those close to her.⁸³ Defeated love and chastity made female suicide comprehensible. Carrying into the Enlightenment examples found in the Renaissance and much earlier in Ovid’s Heroides, this powerful strain in reporting is exempliﬁed in a long description of a local suicide in the Courant.⁸⁴ On Saturday last, an inquest was held on the body of Elizabeth Stennett, the unfortunate young woman, who destroyed herself by taking opium, in Gateshead, on the Thursday preceding, as mentioned in our last. . . . By the account which this unfortunate young woman gave to different persons, and which was sworn to before the coroner, it appears, that a few weeks ago, she had taken her passage by the coach from Grantham, the place of her residence, to Ferry-bridge, and that the guard had against her will brought her forward to Newcastle, under a pretext of shewing her the town, and carrying her back the next day, threatening if she would not come herself, that he would bring forward her trunks. The promise of taking her back he had under various pretences eluded from time to time, till on the fatal Thursday morning, her patience being exhausted, she waited for the coach in Gateshead, and attempted to climb up, but the brutal villain pushed her violently down, and ordered the coachman to drive on. This inhuman conduct, and the sense of her forlorn situation, it is supposed urged her to the desperate act.⁸⁵

The report concludes that hostility to seducer was greater than to suicide. Elizabeth’s death was acceptable because it embodied a set of conventional ⁸¹ D[aniel] T[uvill], Asylum veneris, or A sanctuary for ladies Iustly protecting them, their virtues, and sufﬁciencies from the foule aspersions and forged imputations of traducing spirits (London, 1616), 124. Another example follows at pp. 124–6. ⁸² T. Rizzo, ‘Sexual violence in the enlightenment: The state, the bourgeoisie, and the cult of the victimized woman’, Proceedings of the Annual Meeting of the Western Society for French History 15 (1988), 122–9. ⁸³ M. Higgonet, ‘Speaking silences: Women’s suicide’, in S. R. Suleiman (ed.), The female body in Western culture: Contemporary perspectives (London, 1986), 71–4. Outram, Body, 94–6. ⁸⁴ The heroycall epistles of the learned poet Publius Ouidius Naso, in English verse set out and translated by George Turberuile (London, 1567). F. Bound, ‘Writing the self? Love and the letter in England, c.1660–1760’, Literature & History 11 (2002), 7. ⁸⁵ NC 6677 (29 September 1804).

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(if vague) female virtues of vulnerability: ‘passivity, frailty, modesty, patience, loyalty, acceptance, and self-renunciation’.⁸⁶ She had followed all the rules and thus retained a moral integrity that most other suicides had utterly lost. Untouched by her dreadful predicament or even seemingly by the fact of her suicide, she was a model of helpless virtue, her seducer a paradigm of a corrupt and vicious world. In the most-used Enlightenment sense, this was a sympathetic account that embodied ‘efforts to focus on the situation of another (however discovered) and to bring to mind everything that is relevant to a full understanding of this situation and a feelingful response to it’.⁸⁷ But it was also pathos in the classical Greek sense: an image of transient emotion (passion) coupled with passive suffering.⁸⁸ Further, it exempliﬁed the true Stoic tradition in emphasizing that virtue is sufﬁcient for happiness; nothing except virtue is good; and, most importantly, emotions are not to be trusted. Twenty years after Elizabeth Stennet’s death, the account of Jane Wintrip’s is brief and basic. However, a letter printed in a subsequent issue clariﬁed the reasons for the suicide in ways that reinforced female victimology. This ‘unfortunate’ young woman cut her throat at Morpeth and the letter begged to acquaint the public with circumstances ‘if not as some extenuation of her guilt, at least that her lamentable fate may operate as a warning to others’. Four years before her death she engaged as a servant to a farmer near Cresswell and became pregnant by him, but his family prevented him marrying her. The couple continued to live together and produced a second child. While the farmer was absent for a period of weeks, his father and brother arrived at the house and told Jane to get out, but to leave her belongings and the children behind her; they gave her just £4 compensation. The father had a cart waiting and told the driver to take her as far away as possible, which is how she ended up committing suicide at Morpeth. The letter ended with an appeal to sensibility: ‘what has since taken place is known to all, and surely cannot be a matter of much surprise to any person possessed of ordinary feelings’.⁸⁹ What Jane had done was wrong, but her voluntary death was transformed into something apparently involuntary, shifting blame onto those who had led her to this pass. The letter followed the rules of Renaissance rhetoric, and especially Erasmus’ advice that, to mobilize pity in furthering an argument, ‘the deepest emotions will be stirred if one gives a vivid picture of the consequences’.⁹⁰ It was ⁸⁶ H. I. Kushner, ‘Suicide, gender, and the fear of modernity in nineteenth-century medical and social thought’, Journal of Social History 26 (1992–3), 468. Walker, Crime, gender and social order, 89, reports that ‘Literary accounts presented suicide as the most exquisite feminine immolation’. ⁸⁷ J. B. Radner, ‘The art of sympathy in eighteenth-century British moral thought’, in R. Runte (ed.), Studies in eighteenth-century culture ( Madison, 1979), 190. ⁸⁸ Higgonet, ‘Speaking silences’, 70–1. ⁸⁹ Newcastle Chronicle (28 January 1824). ⁹⁰ D. Erasmus, ‘De conscribendis epistolis’, in J. K. Sowards (ed.), Collected works of Erasmus 71 vols (Toronto 1985), vol. 25, 81. P. Mack, Elizabethan rhetoric: Theory and practice (Cambridge, 2002).

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a kind of judicial oratory, but here pleading in a court of public opinion. The centrality of these rules to descriptions of suicides is hardly surprising as a central tenet of Enlightenment opinion was that rhetoric should form the basis of the instruction of the social classes that wrote for the papers and many of those who read them.⁹¹ Proprietors wrote copy, but the more discursive pieces—perhaps some of the more overtly moralizing suicide stories too—came from clergymen, teachers, scholars, and other educated contributors.⁹² Understanding the rules of rhetoric and the classical or humanist roots of certain tropes makes it harder to treat later Georgian reporting as either new or benign. Furthermore, reporting was far from morally neutral, and its tendency towards the ‘sympathetic’ was grounded in limited eighteenth-century understandings of the term, rather than in the universalism of later ages. It selectively condemned certain types of behaviour and some classes of person in creating an explicit set of social commentaries. The improvable society of the British Enlightenment was based on a narrow deﬁnition of society’s acceptable members and their place in its structure. The young were nourished and educated to be virtuous, Christian pillars of society, for they were malleable; those adults to whom no blame could be attached were cared for; the rest were viewed with distrust—to be controlled by the courts or by public opinion. Sympathy is often proffered as a development of the Enlightenment, a modern emotion that helped distance modern people from the vengeful savagery of their past. Yet, in truth, sympathy was a complex and contingent set of ideas whose modern meaning was only one of several that eighteenth-century people understood. For Hume, sympathy meant identiﬁcation: ‘The sentiments of others can never affect us, but by becoming, in some measure, our own; in which case they operate upon us, by opposing and encreasing our passions, in the very same manner, as they had been originally deriv’d from our own temper and disposition’.⁹³ Modern observers ﬁnd appeal in Hume’s formulation, but Adam Smith followed the mainstream Scottish Enlightenment by seeing sympathy as an imaginative understanding of others, which did not necessarily mean that their sentiments became those of the observer.⁹⁴ Objects of sympathy could not be unqualiﬁed, for against sensibility had to be set the need for self-command, especially in men.⁹⁵ An inclination to assist does not prove a disposition to agree, ⁹¹ J. C. Cairns, ‘Rhetoric, language, and Roman law: Legal education and improvement in eighteenth-century Scotland’, LHR 9 (1991), 31–58. ⁹² Donaldson, Popular literature, 7. ⁹³ D. Hume, A treatise of human nature 3 vols. (London, 1739–40), vol. 3, 233–4. ⁹⁴ L. Haakonssen, Medicine and morals in the Enlightenment: John Gregory, Thomas Percival and Benjamin Rush (Amsterdam, 1997), 70–4. T. J. McCarthy, Relationships of sympathy: The writer and the reader in British romanticism (Aldershot, 1997). ⁹⁵ D. Y. Rabin, Identity, crime, and legal responsibility in eighteenth-century England (Basingstoke, 2004), 67–9.

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and facts do not necessarily create compassion and action, let alone ‘a shared locus of sympathy’, as Laqueur has argued.⁹⁶ Sympathy in the mainstream Scottish Enlightenment (which for many purposes was the British Enlightenment) meant openness to the sentiments of others rather than necessarily an adaptation to those feelings, let alone a wholesale acceptance of alternative motives and passions. All might feel the same, but some were more ‘sensible’ than others, and reacted in different ways to emotions and experiences. Furthermore, John Dwyer reminds us how sympathy could turn to condescension, relations of humanity into those of power, for debates about social and moral issues and about the place of individuals and groups within society took place against a background of stark social polarization and the perception of growing social problems. In the language of Enlightenment writing, the growing acceptability of ‘sympathy’ over ‘empathy’ had a price in social terms. ‘Even the most humane sentimental constructs implied a complex system of social layering and distancing, containing elements of control.’ Though the exchange between givers and receivers ‘afﬁrmed the values of humanity and community, it invariably transformed many objects of sympathy into victims of power’.⁹⁷ Sympathy or compassion itself had initially been seen by Hobbes and his immediate successors as instinctive (a counterpoint to selﬁshness), but by the time newspapers were reporting suicide with any regularity it had come to be understood as dependent on ‘efforts to attend, to infer, to reﬂect, and to remember’: it was a moral virtue that required education in sensibility, and thus was not available to all.⁹⁸ This understanding of sympathy explains an example, frequently if misleadingly cited as evidence of an increasingly generalized association between insanity and suicide. In 1784 the prominent man-midwife, William Hunter, argued that a pregnant single woman who killed herself and her unborn child should not be held responsible because she acted ‘under a phrenzy from despair’.⁹⁹ This frenzy was comparable with fever or lunacy. Hunter’s article is conventionally seen as a signal publication in the history of forensic medicine, a sign of medicalization, and an important example of what Laqueur calls a ‘humanitarian narrative’.¹⁰⁰ But Hunter, like Luther and the Jacobean dramatists, had in mind a certain type ⁹⁶ Laqueur, ‘Humanitarian narrative’, 179, 194–5. Laqueur follows Hume, yet seems to see Smith speaking with the same voice. Ibid., 202. ⁹⁷ J. Dwyer, ‘Enlightened spectators and classical moralists: Sympathetic relations in eighteenthcentury Scotland’, in J. Dwyer and R. B. Sher (eds), Sociability and society in eighteenth-century Scotland (Edinburgh, 1993), 115. Mullan, Sentiment and sociability, Wealth & Virtue: The shaping of political economy in the Scottish enlightenment (Cambridge, 1983), 186–9. ⁹⁸ Radner, ‘Sympathy’, 190. ⁹⁹ W. Hunter, ‘On the uncertainty of the signs of murder, in the case of bastard children’, Medical Observations and Inquiries 6 (1784), 271. ¹⁰⁰ Forbes, Surgeons at the Bailey, 3, 97, 103–5. Laqueur, ‘Humanitarian narrative’, 185–8. M. Jackson, New-born child murder: Women, illegitimacy and the courts in eighteenth-century England (Manchester, 1996), 110–32. Rabin, Identity, crime, and legal responsibility, 100–2.

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of woman, who could be moved to kill herself or her child by noble feelings, his apparently clinical judgement in fact a moral one. Drawing on classical tropes of heroic suicide, he envisaged not ‘a worthless woman . . . insensible to infamy’, but one of ‘respectable virtue’ possessing ‘a high sense of shame’.¹⁰¹ With a distinct moral edge, Hunter’s commentary is both emotive and socially selective, assuming that sensibility was associated with intellect, taste, reﬁnement, and delicacy of feeling.¹⁰² Hunter’s virtuous suicide extended only a limited ‘moral franchise’.¹⁰³ Meant as pity or compassion, sympathy is not some benevolent universal or essentialist quality that can simply be juxtaposed with malignity or judgementalism, but is itself a historically situated, socially constituted, selective, and contingent set of value judgements.¹⁰⁴ Eighteenth-century literati proclaimed themselves and those like them as sensible and sensitive, more polite, restrained, and civilized than what had come before—and more than some of their contemporaries. Whether they were is unclear, but it might be safer to assume that previous ages and other societies simply ‘understood and organized emotions according to different cultural conventions’. The age of Enlightenment saw ‘a new emotional fashioning’ in which sentiments were privileged, but that does not necessarily make it more civilized or more sympathetic in a modern sense.¹⁰⁵ One literary form that seemingly fashioned new emotions was the suicide note, which became better known from the 1770s. Yet examples were very rare in the provincial press. Only six were reproduced by the Pacquet and the Courant together out of 471 instances of regional suicides spanning over half a century. It is hard to see how provincial English people learned discourses of suicide from so few role models, and the complex message they conveyed belies the apparent simplicity of their wording. Starting around 1790 the English papers began routinely to give verdicts of lunacy or insanity in suicide cases, but at the end rather than the beginning of reports. Under a heading ‘lunacy !!!’, that alerted readers to alter their perceptual sets, the Courant offered an apparently businesslike suicide note: ‘Henry Adderton begs his respected friend Mr Brewster will see his remains put under the earth, and write an account of his fate to his brother the Rev. Joseph Adderton, of Harrington, near Workington, Cumberland, and humbly prays an all merciful God to pardon a crime compelled by necessity. Stockton, May 7th , 1792’.¹⁰⁶ For three reasons this seemingly mundane, yet poignant, narrative is not straightforward. For one thing, the tragedy depicted was shaped by literary ¹⁰¹ Hunter, ‘Signs of murder’, 270. Z. G. Cahn, Suicide in French thought from Montesquieu to Cioran (New York, 1998), 109. ¹⁰² J. Mullan, Sentiment and sociability: The language of feeling in the eighteenth century (Oxford, 1988), 238–9. ¹⁰³ Laqueur, ‘Humanitarian narrative’, 204. ¹⁰⁴ L. A. Pollock, ‘Anger and the negotiation of relationships in early modern England’, Historical Journal 47 (2004), 567–90. ¹⁰⁵ Ibid., 587–8. ¹⁰⁶ NC 6031 (12 May 1792).

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norms. Suicide notes originated with gallows speeches that were subsequently altered by Enlightenment discourses of sensibility, sometimes blending a dark humour with irony in an attempt to arouse curiosity and solicit judgement. Moreover, readers were invited to gasp at the impious invocation of the deity, rather than to grasp at the literal message of the note.¹⁰⁷ What appears pelagian was meant provocatively to readers who saw suicide as a sin and all sins as crimes, the lunacy lying in the note’s claim, not in the mental state that supposedly caused its alleged author’s death. The ﬁnal twist is that west Cumberland was a hotbed of radical Nonconformity, notably Congregationalists, Methodists, and Quakers. Despite its local interest, this story was not reported in the Pacquet, among whose readership dissenters ﬁgured prominently, but it was fair game for an Anglican, Tory paper like the Courant. 7 . 3 R E P O RT I N G S U I C I D E I N T H E S C OT T I S H P R E S S : T H E E N G L I S H PAT T E R N W R I T S M A L L In their limited reporting of suicides, its social and spatial selectivity, and its stark social commentary, Scottish newspapers offer an extreme version of those from the north of England. The main differences were that stories appeared even less frequently and they hardly ever mentioned the self-inﬂicted deaths of those above the middling ranks of society. In the Edinburgh and Glasgow papers analysed, suicide appears only rarely until the late eighteenth century. Sections of local news from mid-century contain Justiciary Court trials and sentences, superannuated spouses, the deaths of prominent persons, and certain other accidental, infanticidal, gory, and natural-but-sudden fatalities, along with accounts of ﬁres, frauds, and foundering ships. The few suicide cases are as much from England as Scotland, cribbed from London newspapers, or they came out of crime reporting when a felon tried or succeeded in killing himself. The ﬁrst 104 issues of the Glasgow Journal span July 1741 to July 1743. These contain only one possible and one certain account of a suicide. The latter is from December 1742: ‘On Saturday Night a Deserter, who was imprisoned here [Glasgow], hanged himself, by ﬁxing his Garter to the Iron Grate in the Stair-Case’.¹⁰⁸ Two further periods were sampled: 1750–6 (321 issues) and 1771–2 (104 issues). The former contains only two successful suicides (one from Northumberland, one from Glasgow) and two attempted (both from Edinburgh).¹⁰⁹ Only in the 1770s do self-murders start to ﬁgure in greater numbers, with six successful cases reported during 1771 and 1772.¹¹⁰ In February 1772 the body of a young man called Stewart Spence, a legal clerk, was found on the road from Edinburgh to Broughton bleeding copiously from a ¹⁰⁷ For a comparable example from 1800 see Sykes, Local records, vol. 2, 3. ¹⁰⁹ GJ 527, 613, 662, 663. ¹¹⁰ GJ 1549 (bis), 1565, 1572, 1587, 1615

¹⁰⁸ GJ 74.

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wound in his throat. A brief report reassured readers it was not foul play.¹¹¹ The Caledonian Mercury’s early issues are no more forthcoming, and it is clear that Glasgow and Edinburgh newspapers had no appetite for suicides in the early and mid-eighteenth century. Mid-century reporting resembled that in the north of England, covering the criminal, sensational, ingenious, and/or horriﬁc. In June 1747 the Caledonian Mercury carried a report of ‘a very shocking and at the same time surprisingly deliberate Act of Self-Murder’ from near Douglas in Lanarkshire. A farmer near 70 years of age, being wearied it seems from the vanities of life, and resolved to free himself of the same at once, one morning pretty early took a rasor, cut his belly cross with it about nine inches, pulled out two handfuls of his entrails, threw them to the other side of the room, and afterwards went to bed; but being affected with the sight, he arose again, pressed them together, covered them with his bonnet, and returned to bed. When his son and others of the family came into the room, he told them what he had done, gave them out his pocket-book, talked about his business with the greatest composure, prescribed to them how to manage his affairs, and without the least remorse died about three hours after he had given himself the wound.¹¹²

The detail about the replacement of eviscerated and ejected entrails may be a fabrication: this was a period when ghoulish copy was in demand and midcentury coverage favoured the morbid and the marvellous.¹¹³ Only the Aberdeen Journal contained any signiﬁcant numbers of ‘ordinary’ suicides at mid-century (see Figure 5), and this seems to have been an aberration caused by social and political tensions in the city during the 1750s.¹¹⁴ Yet, even here, the overall numbers are small. In 4,120 numbers covering 79 years there were just 119 suicides: an average of one every 35 issues, or a single mention of a successful or attempted Scottish suicide every eight months. This rate is about one third that in the northern English papers over a comparable period. In the amount of coverage, the Aberdeen Journal did even less to normalize suicide than did the northern English newspapers, and sampling suggests this is equally true of the Glasgow and Edinburgh papers. Suicides were reported less frequently by Scottish newspapers because they lacked a public source of information. Without coroners’ inquests, they relied on word of mouth or on ‘leaked’ details of precognitions held in private. Faced with secret investigations, Scottish newspapers were less likely to report completed suicides than their English counterparts, and the ways news was uncovered meant that Scottish editors gave more examples of attempted than completed suicide: 11 per cent of reports in both the Newcastle Courant and the Cumberland Pacquet were about failed suicides, compared with 17 per cent from the Scottish papers. Voltaire remarked in 1739 that if French newspapers were as uncensored and full ¹¹¹ GJ 1587 (18 February 1772). ECA McLeod Bundles, DO113, item 30 (1772). ¹¹² CM 4168, 29 June 1747. ¹¹³ For example. EEC 4856, 2 February 1747. ¹¹⁴ W. H. Fraser, Conﬂict and class: Scottish workers, 1700 –1838 (Edinburgh, 1988), 46–7.

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N

20 15 10 5 0 1750

1760

1770

1780 decade

1790

1800

1810

Figure 5 Distribution by decade of suicides in the Aberdeen Journal, 1750–1819

as English, suicide would be reported as often.¹¹⁵ Yet it was more the information that was not free in Roman-law systems. Scottish coverage was biased by age, sex, residence, and social status. A total of 112 males and 102 females were reported in the Scottish newspapers sampled for the years 1748–1826. Given the preponderance of men in all other sources, this suggests that reporting was even more selective of female suicides than in the north of England (see 1.3). The inclusion of attempted as well as successful selfmurders accounts for only part of the preponderance of females compared with other sources. Among women, 26 of 102 who tried and failed to kill themselves compared with 17 of 112 men. Reporting of suicides was heavily skewed towards towns and cities, as it was in the north-east of England. Fully 156 of 214 reports were from urban communities (including their immediate suburbs), and of these two-thirds were Edinburgh/Leith, Glasgow, and Aberdeen. Twelve reports mention one or more previous attempts. Some eighty-three people used strangulation (thirty females, ﬁfty-three males), sixty-four used water (forty-three females, twenty-one males), thirty-two cut their throats or other parts of their body, twelve poisoned themselves, eleven leaped from high places, seven men shot themselves and one woman burned herself to death (four are unknown). Occupation or status is given in 103 instances. There are no professional people and only ﬁve farmers (one, from Aberdeenshire, described as ‘respectable’), two gentlemen and one merchant, with most of the remaining craftsmen and ¹¹⁵ R. Bartel, ‘Suicide in eighteenth-century England: The myth of a reputation’, Huntington Library Quarterly 23 (1959–60), 156.

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tradesmen (totalling eighteen) of low-status—such as weavers; the largest single group is servants (seventeen), followed by prisoners (ﬁfteen); soldiers and sailors numbered fourteen, and the remaining thirty-two occupations all involved menial manual work, such as labourer, ﬁshwife, chairman, cow feeder, oakum picker, beggar, or travelling woman. Representations of suicide in Scottish newspapers were thus socially particular. Newspapers told their readership that suicide was primarily a problem for those beneath them in wealth and status; it disproportionately affected those in a station of life (young and single) that they had passed through, or ones that they had never experienced and never would (being female, being poor, or following a manual occupation). Only in their urban bias did they reﬂect readership. The implication was that there was a healthy community of functioning families to which the only threat was the poorly integrated and suspect elements like servants, soldiers, and criminals: groups which lay ‘outside the approved contours of society [and] were not awarded the same worth as those ﬁrmly embedded within them’.¹¹⁶ Prisoners were one of the largest groups in the Scottish press, reﬂecting an enduring belief that suicide, like ﬂight, was an indicator of criminal guilt. Writing about nineteenth-century Germany, Ursula Baumann believes that, by downplaying the well-known contribution of domestics and soldiers to contemporary suicide rates out of reluctance to criticize their superiors, Durkheim’s social conservatism served the interests of dominant elites because he only wished to confront internalized manifestations of modernism—anomie and egotism—whose origins were vague.¹¹⁷ On the contrary, late-Georgian newspapers focused on just these groups in a far more overt display of social dissociation and moral detachment. They dealt with the end result of social problems by seeking to pathologize the morality and mentality of marginal and vulnerable individuals and groups, while at the same time reinforcing ‘respectable’ lifestyles and values. It is, of course, possible that these penumbral groups were especially vulnerable to suicide in Britain. There are plausible reasons for prisoner suicide, and in the ‘Reports of deaths’ 1848–57 there was a single asylum case and 18 prisoners out of a total of 324 suicidal deaths. There were not eighteen times as many prisoners as asylum inmates and the reason lies not in the respective compositions of the populations, but in the laxer supervision of prisons, the miserable circumstances of the paupers who generally inhabited them, and in the imperative for late eighteenth- and nineteenth-century authorities to investigate them. There are other similarities with northern English papers. The Scottish press presented metropolitan news as emerging from a socially and morally alien ¹¹⁶ Rock, ‘Law, order and power’, 252. ¹¹⁷ Baumann, Recht auf den eigenen Tod , 241–2, 268–70. Soldiers were particularly at risk in the German lands. H. Brunschwig, Enlightenment and romanticism in eighteenth century Prussia translated ¨ by F. Jellinek (Chicago, 1974), 220. N. Ortmayer, ‘Selbstmord in Osterreich, 1819–1988’, Zeitgeschichte 17, 5 (1990), 209–225. They also topped William Ogle’s table of English suicide rates by occupation, 1878–83. Anderson, Suicide, 95.

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milieu. It paraded London life, not as an example of how to behave and how to feel, but as a warning of what went wrong when a virtuous life became perverted by personal failings and a consequent lack of public virtue. The Times and other London papers treated suicide as an open fact of public life, reporting those of the professional and landed classes in a way unthinkable to their provincial counterparts. Suicide was also a recognized category in abstracts of metropolitan demographic events, but wholly absent as a cause of death in the eighteenth-century Edinburgh bills—or any others for British provincial cities.¹¹⁸ Any published statistics in provincial papers came from London or a continental city like Paris. Again, London was not an example for Britain, but the odd man out. The cultural divide is plain in periodicals like the short-lived Edinburgh Tatler of 1711, which modelled itself on the themes and style of the London original and paid homage to it. However, it revised and parodied Richard Steele’s publication, displaying ‘a complex and multi-layered process of textual and thematic appropriation, alteration and revision’ to create a uniquely Scottish conception of politeness.¹¹⁹ The same imperative to differentiate and distance which determined inclusion of London examples lay behind those drawn from the international press. An extract of a letter from Bordeaux carried by the Glasgow Courant in 1750, told how a beautiful young woman of 22, kept by a banker, stabbed herself when he said he was ending the affair. ‘She was next day, (agreeable to our laws) dragg’d thro’ all the streets of this city, and afterwards hung up by the feet, naked’.¹²⁰ French suicides could be hanged upside-down by one leg as part of a symbolic vocabulary of punishment, but this was never done in Scotland, and ofﬁcially sanctioned corporal punishment of suicides had long ceased there by this date. As well as being chosen for their oddity, foreign (and metropolitan) inﬂuences could be synonyms for dysfunction. The transference of social problems suggested by non-local examples continued to be a part of reporting in the Victorian age: most examples in the ‘crime in the country’ column of the late nineteenth-century Glasgow Herald occurred in England.¹²¹ This was part of the creation of an image of peaceful Scotland, where only outsiders destroyed community harmony and cultural integrity, but the search for such signal strangers had included suicides much earlier. An entry in the Statistical Account for Drainy in Moray, written by Rev. Lewis Gordon in 1790–1, portrayed the absence of suicide as one sign of social ¹¹⁸ For example Scots Magazine 1 (1739), 623, 626. J. Heysham, Observations on the bills of mortality, in Carlisle, for the year 1779 [ –1787] (Carlisle, 1780–88). MacDonald and Murphy, Sleepless souls, 305–7. ¹¹⁹ H. Mathison, ‘Robert Hepburn and the Edinburgh Tatler: A study in an early British periodical’, Media History 11 (2005), 156. ¹²⁰ GC 255 (27 August 1750). ¹²¹ C. A. Conley, ‘Homicide in late-Victorian Ireland and Scotland’, New Hibernia Review 5 (2001), 67.

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uniformity and conformity. ‘It is perhaps a singular circumstance, that in this parish there is no lawyer, writer, attorney, physician, surgeon, apothecary, negro, Jew, gipsey, Englishman, Irishman, foreigner of any description, nor family of any religious sect or denomination except the Established Church. There has not been an instance of suicide during the twenty-two years of the present Minister’s incumbency; nor has any native of this parish been hanged or banished in memory of man.’¹²² Where a suicide happened mattered a great deal in reporting, and so too did a person’s occupation or status. As with England, the social biases in reporting can be demonstrated both by who was included or omitted and what was said about the former, though this can only be done illustratively rather than systematically for Scotland. In short, suicides other than those of the lower orders never made it into the Scottish press unless they were reprints of metropolitan, continental, or sometimes provincial English stories. Two cases illustrate the social limits of Scottish reporting. In 1764 Andrew Murison of Troup, Banffshire, wrote to his brother about the very public death of one of Edinburgh’s most prominent lawyers: ‘Our news are dismall with bankruptcys: a very melancholy scene happend here on Sunday last. Robert Pringle, Lord Edgeﬁeld, one of the Lords of Session, & who some time ago was sheriff of Banffshire, went down to Leith after tea about 7 in the evening & threw himself over the peir in to the sea, where he drownd, he was taken up in about 20 minutes & blooded, but did not recover. The only reason that’s given is that, he was much in debt & could not extrecate himself’.¹²³ The letter is dated 14 April 1764, but there is no mention of Edgeﬁeld’s death around that time in any extant Edinburgh paper. A generation later, the diary of Jane Innes contains extensive commentary on the death of Mr Richard Fisher, who cut his throat on 24 May 1793 and eventually died on 30 May.¹²⁴ The family tried at ﬁrst to pass it off as an accident, but Miss Innes’ diary shows breathless discussion among her leisured social circle and a hushed, but dawning, acceptance of the fact of attempted suicide. During the week he lingered, the true details of Fisher’s death must have become extensively known, both in Edinburgh ‘society’ and more widely, through the conversations of domestic servants, who provided important inside information that fuelled the gossip of their social superiors about Fisher’s heavy drinking and violent end. In this instance, the only formal inkling of his fate is a brief death notice: ‘Richard Fisher of Loretto Esq. died at his house, in George’s-square, on Thursday last [30 May]’.¹²⁵ If sociologist Jack Douglas is ¹²² Quoted in EEC 11710 (1 June 1793). ¹²³ NAS GD1/808/1/9. His testament dative was proved on 9 October 1764. NAS CC8/8/119, 1183. ¹²⁴ NAS GD113/5/419/3/1. ¹²⁵ EEC 11711 (3 June 1793). The same entry appears in EA 3071 (4 June 1793) and CM 11200 (3 June 1793). The suicides of two men whose estates became the subject of extensive and

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correct that ‘the ability and willingness to control the communication process varies directly with increasing social status’, then the reporting of suicide shows the considerable power of Scottish elites.¹²⁶ To be classiﬁed ‘suicide’ at all in newspapers, Scots who died in suspicious circumstances had to be from the lower ranks of society. Ambiguous deaths followed a similar pattern, with a veil of charity being cast over those who looked as though they were ‘people of quality’ that was not extended to the lower orders. In late December 1792 a shooting party in Craigend woods outside Edinburgh ‘observed a young man hanging by the neck on a branch of a tree; he was genteelly dressed, in a blue jacket, with a good hat lying near him. He seemed to have been dead about three weeks or a month, and had no money about him, or papers that could discover who he was’.¹²⁷ So the story ended. In contrast with the well-dressed young man, ‘the body of a young woman, house keeper to a gentleman in the Newtown [of Glasgow], was taken out of the Great Canal, near the Bason [about two miles out of the city]. It is supposed she had drowned herself.’¹²⁸ The respectable and the well integrated got the beneﬁt of the doubt, the poor, dependent, and marginal did not. Instead, they were used to exemplify a perceived link between a working life, poverty, low moral standards, and suicidal propensity. An account from Aberdeen in 1785 told how ‘a woman living in the Gallowgate attempted to put an end to her existence, by cutting her throat with a knife, but luckily having missed the windpipe, the wound was sewed up, and she will recover. She had lived for some years with a soldier, by whom she had several children; but his wife coming from England, and claiming her right of cohabitance, the unfortunate woman in a ﬁt of rage attempted her own life’.¹²⁹ The lesson was plain, connecting three characteristics of moral exclusion: being unmarried, an adulterer, and the bearer of illegitimate children; having a transient relationship with a man in a mobile, low-status employment widely viewed with suspicion; and implied economic marginality.¹³⁰ These were then linked with uncontrolled passions and an attempted suicide, the moral message reinforced by adjectival glosses such as ‘unfortunate’ or (elsewhere) more overtly negative words like ‘wicked’, ‘horrid’, ‘unnatural’, or ‘detestable’. As in English reporting, dwelling place added to the effect by proclaiming a (poor) working-class background: here the Gallowgate, elsewhere the Cowgate, West Port or Pleasance of Edinburgh, the east end of Glasgow, or the Hiltown of Dundee. legally important trials, Messrs Gourlay (1794) and Macadam (1806), were never reported in any newspapers (see 1.2). ¹²⁶ Douglas, Social meanings, 210. ¹²⁷ CM 11132 (3 January 1793). ¹²⁸ GJ 2794 (December 1793). EA 3123 (December 1793). ¹²⁹ AJ 1978 (12 December 1785). ¹³⁰ R. A. Houston, ‘The military in Edinburgh society, 1660–1760’, War & Society 11 (1993), 41–56.

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Still more charged and explicit than the Gallowgate story is an account of a woman tarred with the same brush by the same newspaper in 1810. Over two issues it told of ‘a young girl of infamous character, Jean Wishart, . . . [who] poisoned herself in the barracks, by swallowing a quantity of laudanum’ because the soldier she desired would not return her affections. She did it in front of him. ‘It is however to be presumed that he was ignorant of the contents of the phial, or he would have taken means to prevent its fatal effects, by procuring medical aid to the unfortunate wretch.’ The story concludes: ‘While we feel for the indiscretions of her youth, we cannot help deploring her melancholy end, as a striking example of the fatal consequences too often attendant upon an uncontrolled indulgence of the passions’.¹³¹ To the ingredients of the 1785 story were added the public performance of her act, as open an affront to decency and order as her ‘private’ life was to morality and probity. The Wishart story’s only concession was a nod at the naivety of youth, for contemporaries recognized that this was a difﬁcult stage of life. ‘Young’ and ‘old’ are social constructions whose referent age depends on the society and century in which they are used.¹³² Seven examples in Scottish newspapers where an estimate of age is given to accompany the 51 uses of the adjective ‘young’ or the nouns ‘lad’, ‘lass, ‘girl’ or ‘boy’, ranged from 12 (the youngest suicide identiﬁed in any source) to 25; ‘old’ (8 reports) could mean anyone over 60 years of age (5 exact ages). In addition to the 51 are a further 12 where occupations are given without ages, but which were almost certainly young (servants, soldiers and apprentices). There is no source that can be used to check the age distribution of regional suicides, but in 80 per cent of reports no living or deceased spouse is mentioned. This suggests that Scottish newspaper reporting was selective of the young, as it was in the north of England. Youth was viewed as a period ‘conducive to the cultivation of the moral sentiments’, but also (especially among the less well brought up) ‘vulnerable because of its lack of reasoning power and inexperience of the modern social arena’.¹³³ In the preface to two sermons published in 1805, Samuel Miller afﬁrmed that he ‘with others, have expressed a belief, that the young are most apt to fall into the crime of suicide’.¹³⁴ The young were vulnerable to passions, but once through the phase of youth and dependency, people could be expected to cope with life’s adversities. As far ¹³¹ AJ 3285 (26 December 1810); 3286 (2 January 1811). ¹³² P. Grifﬁths, Youth and authority: Formative experiences in England, 1560 –1640 (Oxford, 1996), 23–5. S. Ottaway, The decline of life: Old age in eighteenth-century England (Cambridge, 2004), 16–64. ¹³³ J. Dwyer, Virtuous discourse: Sensibility and community in late eighteenth-century Scotland (Edinburgh, 1987), 85. S. R. Smith, ‘The London apprentices as seventeenth-century adolescents’, P&P 61 (1973), 149–61. H. Cunningham, ‘The employment and unemployment of children in England, c.1680–1851’, P&P 126 (1990), 115–50. P. Rawlings, Drunks, whores and idle apprentices: Criminal biographies of the eighteenth century (London, 1992), 19–22. ¹³⁴ Miller, The guilt, folly and sources of suicide, 5.

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as the newspapers were concerned, men of the established middling and landed classes did not kill themselves: a comforting message to the independent, middleaged, middle- and upper-class males who made up most newspaper readers.¹³⁵ The point strengthened the fellow-feeling of this morally grounded group by suggesting that, for most purposes, suicidal males were not real men. What they did showed a lack of self-control, irresponsibility, and a fundamentally anti-social turn of spirit—all the antitheses of Enlightenment ideals where passions were curbed to enrich sociability. For an anonymous contributor to the Scots Magazine in August 1749, what was really worthy of praise was for a person to struggle against misfortune and overcome it, showing ‘a becoming resolution, and manly presence of mind, under every circumstance’.¹³⁶ Writing in the sixth edition of The Theory of moral sentiments, Adam Smith expressed this association when saying that suicide other than by melancholics (who for him only made up a small fraction of self-murderers) resulted from ‘our own incapacity to support the calamity with proper manhood and ﬁrmness’.¹³⁷ This explains the incomprehension in the rare accounts of established males who took their own lives. Their suicides were seldom reported, but for those deemed worthy the newspapers offered positive commentary on mode of living. In November 1817 the Glasgow Journal informed readers that ‘a melancholy circumstance took place at Gartsdyke. James M’Arra, tailor there, having, for some time past, been rather depressed in spirits, on account of some pecuniary matters, that morning, about four o’clock, left his own house, and . . . drowned himself. . . . The deceased was a sober, industrious man, and has left a wife and ﬁve children’.¹³⁸ Additional protection was offered here by an assertion of mental problems. Whether a suicide was insane or not had never been of great importance in Scots law, and was legally irrelevant at this date because forfeitures had ceased. Investigations of suicides included among Crown counsel’s opinions only occasionally pass judgement, the superﬂuous gloss of insanity reinforcing the point that no criminal proceedings were required.¹³⁹ Instead, the discriminating use of a lunacy ‘verdict’ in newspapers reinforced the moral point made by the socially selective reporting of suicides. The aim was not to show that the suicide was blameless, which was the function of a non compos mentis verdict in England, but that responsibility lay with them rather than a third party. With or without additional commentary, this rationalization protected worthy survivors from any blame, and it did the same for some men and women who killed themselves: the sober, industrious, affectionate, and, above all, married who had the ‘moral franchise’. ¹³⁵ Harris, Politics and the press, 22, classes the readership of eighteenth-century Scottish papers as ‘gentry, local urban elites and merchants’, at least before the 1790s, and these still made up the bulk of the more successful papers in the 1820s. ¹³⁶ Scots Magazine 11 (August 1749), 395. ¹³⁷ Smith, Theory of moral sentiments, 287. Higgonet, ‘Speaking silences’, 72. ¹³⁸ GJ 4626 (November 1817). ¹³⁹ For example, NAS AD13/85 (1826).

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Reporting north of the Border was different from the south in important ways, with suicide mentioned even less frequently, and that of social elites hardly at all, but the moral assumptions and social distancing were similar. Scottish newspapers ‘spoke the landed language of rank and hierarchy’.¹⁴⁰ Even as they outlined growing problems of policing within Scottish society itself, the press (and the class to which it spoke) turned its back on the drastic social changes of the late eighteenth and early nineteenth century.¹⁴¹ Suicide for them represented deplorable disorder and weakness within an element of society. Newspaper reading may have expanded after 1789, but the result was that more members of the middling sort were able to distance themselves from the labouring poor by viewing their lives as examples of what not to do, and how not to be. 7 . 4 C O N C LU S I O N : P U B L I C O PI N I O N AND THE BOUNDARIES OF THE MORAL COMMUNITY ‘To take one’s own life is to force others to read one’s death.’¹⁴² So writes Margaret Higgonet, reﬂecting an attachment to the linguistic turn. Suicides may have tried to become something else by writing their own deaths (and rewriting parts of their lives), both in the literary offshoots that were suicide notes and in ‘performances’ before death. Yet their demise closed off those narratives and opened up a potentially unending series of interpretations by family, friends, neighbours, lords, journalists, and ofﬁcials. Reading renditions of their deaths in newspapers is far from straightforward: all stories were adapted cultural archetypes, and eighteenth-century vocabulary is not a transparent register of meaning immediately and obviously intelligible to the modern reader. In accounts whose form informed their meaning, rhetorical devices drew readers into a shared cultural community of the classically educated who had been trained to read morality into narratives, and to use exemplary stories to back up ethical arguments. Causes cited in reporting, such as economic dependence, age or sex, were signals which guided observers in their interpretation of self-murder, for ‘social characteristics are used as interpretative cues for investigating prima facie cases of unnatural death’.¹⁴³ Language created a world of self-reference and, even when the resulting representations have a factual component, they are better understood as ‘dense and intricate forms of argumentation’.¹⁴⁴ Only the most superﬁcial reading would allow one to claim that: ‘The ways in which suicide was depicted in the press helped to foster a more secular and ¹⁴⁰ J. Dwyer, ‘The Caledonian Mercury and Scottish national culture, 1763–1801’, Journal of History and Politics 7 (1989), 160. ¹⁴¹ R. Mitchison, ‘Patriotism and national identity in eighteenth-century Scotland’, in T. W. Moody (ed.), Nationality and the pursuit of national independence (Belfast, 1978), 73–95. ¹⁴² Higgonet, ‘Speaking silences’, 68. ¹⁴³ Prior, Social organization of death, 55. ¹⁴⁴ McGowen, ‘Criminal class’, 35.

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tolerant view of the act’.¹⁴⁵ Suicide was not seen as a great evil, but nor was it treated as a routine matter to be viewed with indulgent pity.¹⁴⁶ When newspapers paused to comment on its frequency, it was to conﬁrm its pathology, not allow its normality. Far from secularizing suicide by omission, the papers strongly reinforced conventional Christian morality, including a stress on the certainty of God’s judgement.¹⁴⁷ It was mistaken (Nonconformist) faith that caused suicide, not religion itself. More broadly, the act of inclusion in a newspaper involved attributing moral exclusion: paradoxically, those excluded from their columns were part of the included social and moral community to which the newspapers spoke. For MacDonald and Murphy, ‘The publication of reports of suicide in the press made the victims members of the community of its readership’.¹⁴⁸ The exact reverse is true of provincial Britain, for reporting marked the limits of the community of readers rather than its membership. Neither the increased reporting of suicides, nor the occasional publishing of suicide notes necessarily shows a change in sentiment, just as the rhetoric of sympathy should not automatically be read as direct evidence of ‘sympathetic’ emotional engagement.¹⁴⁹ Sympathy had clear limits and, in contrast with the stable and the integrated, the more marginal, transient, and abandoned were allowed to stand as unadorned self-murderers, exemplars of disgrace and despair in an admonitory narrative of social worth. If newspapers were ‘collective productions—manifestations of cultural practices and collective beliefs’, then they expressed primarily one ‘collective’ of people who sought to judge more than to empathize.¹⁵⁰ Reporting was a way of commenting upon, but also coping with, social change by separating the reader from the experiential world that gave rise to it. Any ﬁgures presented were not simple empirical facts in what one Swiss study terms ‘[le] secteur banal de la statistique administrative’, but far from mundane claims about perceived social problems.¹⁵¹ The moral judgements of early Victorian observers, noted by Gates and Anderson, carried on a tradition that was already ﬁrmly established in newspapers by the late eighteenth century. By then it was axiomatic to some observers that suicide was a sign of weakness in the body politic and the individual—as it was for the Victorians, whom Chambers reassured in the 1880s: ‘very few instances of self-destruction occur among hard-working heads of families’.¹⁵² Using words rather than deeds to police thought, we might suggest that newspapers helped to create, control, and continue the internalized norms of the ‘architectural community’ from the later eighteenth century onwards.¹⁵³ ¹⁴⁵ MacDonald and Murphy, Sleepless souls, 303. ¹⁴⁶ Anderson, Suicide, 216. ¹⁴⁷ Gorringe, God’s just vengeance, 18, 29. R. McGowen, ‘ ‘‘He beareth not the sword in vain’’: Religion and the criminal law in eighteenth-century England’, Eighteenth-Century Studies 21 (1987–8), 200–2. ¹⁴⁸ MacDonald and Murphy, Sleepless souls, 336. ¹⁴⁹ Bound, ‘Writing the self’, 13. ¹⁵⁰ MacDonald and Murphy, Sleepless souls, 302. ¹⁵¹ Schnegg, ‘Justice et suicide’, 89–91. ¹⁵² Quoted in Gates, Victorian suicide, 62. ¹⁵³ Muldrew, ‘Community and individualism’, 161–6.

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The contemporary reform of punishment too ‘ﬂowed from a more, not less, ambitious conception of power’ that aimed to strike at the mind of the living, creating what Foucault called ‘an economy of suspended rights’.¹⁵⁴ English readers were told about the sex, residence, and status of a person, the mechanics of their death, and the outcome of an inquest; any additional information about cause or context was offered only intermittently. This conﬁrms Esther Snell’s ﬁnding that ‘narrative action is privileged over motivation’ in most accounts, portraying crime in general as inexplicable and unpredictable.¹⁵⁵ For English suicides, the most obvious predictability lies in attributions of lunacy, but that was not a routine part of reporting until the 1800s in either the Pacquet or the Courant: at least a generation and perhaps two after it became usual for regional coroners’ inquests to ﬁnd that those who killed themselves did so while temporarily insane. Rather than being opinion leaders, newspapers lagged far behind changes known to a wide spectrum of society from personal knowledge of inquests. Nor did readers need to be told that suicide had social, economic, and psychological causes.¹⁵⁶ Snell goes on to argue that the newspaper was a poor instrument of any ideology as its portrayal of crime was driven more by its internal publishing dynamic than by any particular set of externally imposed values, making it different from other literary forms and from the theatre of justice itself.¹⁵⁷ Compared with the criminal courts this last point is probably true, but there are subtler nuances in reporting. Donna Andrew has demonstrated how published newspaper apologies (usually lowly workers to their employers) blended mediation with social control to reinforce subordination.¹⁵⁸ Suicide reporting too combined informing with differentiating, by offering accounts whose content was as ideological as any English assize sermon. The later Georgian press helped distance readers from the act of self-murder more effectively than other literary forms, with which in its wry sensationalism early and mid-eighteenth-century reporting had some similarity. From a study of F. J. Child’s The English and Scottish popular ballads, L. C. Wimberley concludes: ‘Suicide can hardly be styled dishonorable in folksong. It is a matter of frequent occurrence and nowhere does anything of opprobrium seem to attach to the act of self-destruction’.¹⁵⁹ In ballads more generally, concludes Francis Gummere, ‘[d]eath is seldom a matter for lingering or comment’, and religion ‘is only an incidental matter’.¹⁶⁰ Bernard Capp’s analysis of English almanacs similarly found that ‘The compilers displayed little of the horror traditionally ¹⁵⁴ Ignatieff, ‘Social histories of punishment’, 185. Foucault, Discipline and punish, 11. ¹⁵⁵ Snell, ‘Perceptions of violent crime’, 144. ¹⁵⁶ MacDonald and Murphy, Sleepless souls, 302. ¹⁵⁷ Snell, ‘Perceptions of violent crime’, 136. ¹⁵⁸ D. T. Andrew, ‘The press and public apologies in eighteenth-century London’, in Landau, Law, crime and English society, 208–29. ¹⁵⁹ L. C. Wimberley, ‘Death and burial lore in the English and Scottish popular ballads’, (University of Nebraska Ph.D. thesis, 1927), 22–3. ¹⁶⁰ F. B. Gummere, The popular ballad (Boston/New York, 1907), 309, 337.

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associated with suicide.’¹⁶¹ From the mid-seventeenth century some almanacs listed prominent suicides, but only in the type Capp classes as ‘burlesque’ (such as Poor Robin) was there any discussion and they were ‘treated there as a slightly macabre jest: ratsbane and hanging, for example, were solemnly described as sound remedies for scurvy or the pains of love’.¹⁶² From a survey of novels and romances in the Renaissance, Minois too afﬁrms that ‘No reproving moral lesson emerges from these works’.¹⁶³ In his study of suicide in Jacobean drama, Rowland Wymer concludes that attitudes to suicide were as contradictory as they were to duelling (or war or revenge).¹⁶⁴ To be tragic, all these things necessarily contain an element of conﬂict and contradiction, and this tension makes suicide a valuable dramatic convention.¹⁶⁵ Later Georgian newspapers were less ambivalent or ‘sympathetic’ than had been earlier literary forms, de-normalizing suicide rather than regularizing it. With the same selectivity as corporal sanctions, Georgian newspapers continued to shame the dead. Newspaper depiction of suicide also departs from a mode of narrative identiﬁed by Lincoln Faller in the early modern criminal biography, which, ‘highly structured and univocal, seeks to reintegrate the criminal into the social and moral order, to smooth over the disruptive effects of his behavior, to digest whatever cruelties he may have committed’.¹⁶⁶ This redemptive narrative applied to familial murderers, whereas for thieves was reserved a more disjunctive and ambivalent form that emphasized their separation from society. In the case of suicides reported in newspapers, the integrative narrative applies selectively to seduced young women, inventing and amplifying the dishonourable man’s cruelties to heighten his disruptive inﬂuence on normal society and conﬁrm his place outside it, while simultaneously reinforcing gendered stereotypes of female vulnerability. Blameless family survivors might be redeemed and included where there was a positive lesson to be learned, but all others were damned. At one level, discourses of suicide in eighteenth- and early nineteenth-century newspapers resembled the spectrum of ‘stereotypes’ found by Anderson for Victorian and Edwardian England: ‘sad, wicked, strange and comic’.¹⁶⁷ By then, many more newspapers were available, catering to varied audiences with differing tastes. Some contained few reported suicides, others many; some selected the upper ranks of society, others the commercial or labouring classes.¹⁶⁸ Because of the nature of journalism, which has to entertain as well as inform, and to select from multiple sources of news, it would be wrong to expect a consistent line. Yet in the inclusion and presentation of suicide by Georgian newspapers there ran a ¹⁶¹ B. Capp, Astrology and the popular press: English almanacs 1500 –1800 (London, 1979), 129. ¹⁶² Ibid., 129–30. For example ‘Poor Dicky and his scolding wife’ (1802). NLS RB.m.169(086). ¹⁶³ Minois, History of suicide, 102. ¹⁶⁴ Wymer, Suicide, 156–9. ¹⁶⁵ Ibid., 4–5. ¹⁶⁶ L. B. Faller, Turned to account: The forms and functions of criminal biography in late-seventeenth and early-eighteenth century England (Cambridge, 1987), 195. ¹⁶⁷ Anderson, Suicide, 421. ¹⁶⁸ Ibid., 217.

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clear strain of moral judgement and a calculated didacticism about age, class, and sex that cannot be reduced to mere ‘sympathy’, or written off as stereotypical. Indeed, Anderson wisely concludes that Victorian and Edwardian attitudes had been adjusted rather than changed and that a perception of moral failing of some kind continued to underlie understandings of self-murder: ‘Suicide was still not handled as though it were a morally neutral act’.¹⁶⁹ ¹⁶⁹ Ibid., 213.

CONCLUSION: NATIONAL, REGIONAL, AND LOCAL HISTORIES This book has explored what suicide can tell us about both attitudes and social and political relationships in Scotland and England, but punishing the dead can also serve as one of the grids for comparing national or regional cultures. Spatial comparisons in the existing literature have focused on the former, though sometimes on ﬂimsy foundations. Writing in the late 1980s, MacDonald and Murphy thought that research on Europe was limited. The statement is a curious one, since French work on medieval and early modern suicide long predates major English studies and is considerably more wide ranging in its treatment of the judicial handling of self-murder. Albert Bayet’s 1922 conceptual framework underpins much of what they say. Thus it is curious to read that ‘suicide was penalized more severely in England than in any other nation’, the map of attitudes to suicide there being ‘coloured with the darkest hues of fear and hatred’.¹ There are problems both in assessing the extent of punishments and in determining what is ‘severe’. For the ﬁrst, England sits comfortably within a spectrum of attitudes and practices, for research on continental Europe suggests not only that patrimonial penalties differed considerably from one region (or even locality) to another, ranging from both immovable (real) and movable (personal) property, sometimes compounded by a taint on the dead person’s lineage, to no loss at all; they were selectively enforced.² Nor is it possible to label English burial practices as particularly severe. No reliable evidence exists to back up commentators who asserted that English suicides were normally buried in the highway with a stake driven through them. Contemporaries who made such remarks were at times in error about aspects of punishment, at others they generalized from local experience, and occasionally they sought only to illustrate. Normative sources actually suggest the ‘Germanic’ practice of staking was conﬁned to south-east England.³ Positive sources show that dragging was found in the north of England and in Scotland. What evidence there is about suicide burial cannot justify treating English practices as unusually extensive, ¹ MacDonald and Murphy, Sleepless souls, 75, 76. ² Vandekerckhove, On punishment, 95–120. ³ Murray, Suicide, vol. 1, 373. Watt, Choosing death, 88.

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let alone ‘harsh’, and indeed the sources struggle to support the weight of interpretation placed on them. ‘Severity’ or harshness is, of course, a value judgement and is anachronistic, even when made by the eighteenth century on the sixteenth. Supposedly objective quantitative measures of violence in a society, such as homicide rates, also have an element of intuition and impressionism to them. Cross-cultural or trans-temporal comparisons of violence are fraught with often intractable difﬁculties.⁴ Modern observers regard what was done to the bodies of suicides as at best bizarre, and at worst repugnant. But was it more brutal or violent to stake a corpse in its grave or to drag and gibbet it for all to see, or was it harsher to bury it undeﬁled, but outside a churchyard? Do the lower rates of capital conviction and execution (but not the proportion of those convicted who were actually hanged) in eighteenthand nineteenth-century Scotland compared with England and Wales or Ireland make Scotland a less violent place?⁵ Or should we simply write off all past societies as equally savage in a self-referencing and self-supporting interpretation of moral value? Comparisons across time and space are not worthless, for it is possible to talk of the ‘styles’ or ‘modes’ of violence which can be located in different regions and periods. Thus corporal punishment of suicide focused on shaming the corpse in Scotland, on physically damaging and removing it in England. Corporal punishments were concentrated in speciﬁc periods. In a cryptic aside, Dumont notes that forfeiture for suicide was a thirteenth-century development, with corporal punishment a later addition. ‘Quelques temps apr`es, la justice temporelle ajoutait les peines corporelles aux peines p´ecuniaires, exerc¸ant la r´epression sur le cadavre par des supplices vari´es et multiples . . .’.⁶ The remark is wise, if vague. Corporal punishment of suicides in Scotland arrived late and was concentrated in the late sixteenth and early seventeenth centuries. The chronology accords approximately with that found in Geneva, where the custom of dragging was ‘usual’ in the sixteenth and early seventeenth centuries, but became rare after 1650.⁷ In Schleswig and Holstein, then under Denmark, Vera Lind also found an intensiﬁcation of penalties in the sixteenth and seventeenth centuries.⁸ Dragging was practised in the late sixteenth-century ⁴ Miller, Humiliation, 90. A. Shepard, ‘Violence and civility in early modern Europe’, Historical Journal 49 (2006), 593–603. ⁵ S. J. Connolly, ‘Unnatural death in four nations: Contrasts and comparisons’, in Connolly (ed.), Kingdoms united?, 210–13. Crowther, ‘Crime, prosecution and mercy’, 230–4. Baker, Spelman’s reports, vol. 2, 299–300. ⁶ Dumont, ‘La r´epression du suicide’, 554. Minois, History of suicide, 34–7. Guernsey, Suicide, 22, places forfeiture after the Norman Conquest. ⁷ The last recorded dragging in Geneva was that of ‘une voleuse de surcroît’ in 1732, the documents making it plain that the theft rather than the suicide was behind the punishment. Magistrates declared in 1735 that all suicides should be exempted from punishment except those who killed themselves while awaiting execution. Haeberli, ‘Le suicide’, 126–7. Carroll, Blood , 170–9. ⁸ Lind, Selbstmord , 31–9.

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Netherlands, but became conﬁned to suicidal criminals in the seventeenth century.⁹ The last such sentence passed in Amsterdam was in 1658, when an elderly sailor was dragged and gibbeted.¹⁰ In Germany elaborate profanation (notably staking) seems to have originated in the sixteenth century (where it was mainly conﬁned to the north and east), and to have died out in the seventeenth.¹¹ Corporal punishments were rare in practice. Van D¨ulmen writes of simple suicide that ‘as a rule the offender was either burnt by the executioner, stuffed into a barrel and thrown into the river or buried beneath the gallows’. The aim was to remove the corpse and obliterate its memory by ﬂoating or ‘running’ (rinnen), leaving its ﬁnal resting place unknown, rather than for friends to put it beyond reach by sinking, or enemies by seashore burial (as happened in Scotland).¹² However, Van D¨ulmen generalizes from law codes, and the usual German practice seems to have been some form of boundary burial for the blameworthy; the normally pious were normally buried.¹³ More elaborate punishment of the corpse was generally only meted out to convicted criminals: in Prussia the Allgemeines Landrecht f¨ur die preussischen Staaten speciﬁed that the sentence should be inﬂicted ‘as far as possible’ on the dead body of a convicted criminal who had committed suicide.¹⁴ This continuation of judicial process post mortem had ceased in Scotland more than a century before the Prussian code was promulgated in the 1790s. Describing one country (or age) as harsh and another as lenient is in truth unhelpful, for all European countries were selective in their treatment of suicides, and all had mixed economies of punishment. At its most extensive, the punishment of suicides in Scotland resembled the styles speciﬁed in some formal continental law codes. More broadly, continental and Scottish magistrates investigated suicide privately, and Richard Smith suggests that the discretion of Roman practice distinguishes it from the traditions of centralization and public involvement that had characterized England since the Middle Ages. ‘Secret interrogation may well have been a more likely development in societies in which a ‘‘participatory’’ tradition in policing and trial of ‘‘crime’’ was poorly developed or only weakly related to the instructions sent out from central government.’¹⁵ In ⁹ M. Bosman, ‘The judicial treatment of suicide in Amsterdam’, in Watt (ed.), From sin to insanity, 23–4, 195n. Vandekerckhove, On punishment, 47–53. ¹⁰ Spierenburg, Spectacle of suffering, 55. However, Lis and Soly, Disordered lives, 27, suggest that dragging was routine in the southern Netherlands up to the mid-eighteenth century. ¹¹ Murray, Suicide, vol. 1, 51–2. Str¨om, Sacral origin, 210–14, suggests it had earlier roots and was also found in Scandinavia. ¹² Van D¨ulmen, Theatre of horror, 103–4. ¹³ P. Geiger, ‘Die Behandlung der Selbstm¨order im deutschen Brauch’, Archiv f¨ur Volkskunde 26 (1926), 163. Lederer, ‘Dishonorable dead’, 357. Lind, Selbstmord , 413. ¹⁴ Allgemeines Landrecht f¨ur die preussischen Staaten, II.20.803–5. Van D¨ulmen, Theatre of horror, 105. Grimm, Deutsche Rechtsaltert¨umer, vol. 2, 326–7. Merrick, ‘Patterns of suicide’, 28–32. ¹⁵ Smith’, ‘Modernization’, 171.

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Scotland, the issue was one of control rather than participation. Julian Goodare has shown the weak links between centre and locality in early modern Scottish government, for example in failed attempts to create civil parishes on the English model, nor were manors introduced during the Middle Ages.¹⁶ Scottish justice was participative, and the survival of judicial shaming punishments into the early nineteenth century is because of the enduring impact of the Kirk as a regulator of moral behaviour, and because members of local communities expected to be part of enforcement. It has also become apparent in recent years that the level of English church discipline, once thought to have fallen off after the Restoration, held up well during the eighteenth century in the north of England.¹⁷ Shaming punishments were not a straggling survival, but an integral and living part of the life and legal culture of these areas, and especially of their towns. Scots law blended important components of both native and continental systems, most notably French, as well as English inﬂuences. Yet Scottish processes were not wholly ‘continental’. Practices of punishment differed: suicides were not burned judicially or extra-judicially in Scotland (or anywhere in Britain); water was used popularly to conceal and to cleanse, and it was not a judicial punishment for suicide.¹⁸ At the same time, Scottish administrative structures depended on a particular balance between local reporting and the investigative powers and pockets of magistrates, neither with exact parallels in Europe. These inﬂuenced observed patterns of suicide. For example, early modern Scottish women were more likely to hang than drown themselves, and men the opposite, distinguishing Scotland from most other historic populations; leaping to one’s death, stabbing and poisoning were commoner in Scotland than elsewhere.¹⁹ Intuitively this might appear to be a more violent regime of self-killing, suggestive of a distinctive Scottish approach to the body, but in reality interpretations of the means of death were socially constructed and legally ﬁltered.²⁰ On the one hand, cultural context comes into play for drowning was not a manly way to die. On the other, hanging or a knife or gunshot wound was hard to construe as anything other than wrongful in an investigative system that tried as far as possible to avoid the expense of formal enquiry into deaths other than those manifestly involving outside human agency. Unlike France or Germany, Scottish magistrates received only discretionary payment for most investigations. That early modern patterns are an artefact of institutional structures is clear when more reliable sources become available in the mid-nineteenth century and the ¹⁶ Goodare, Government of Scotland , 192–219, esp. 202. ¹⁷ W. M. Jacob, Lay people and religion in the early eighteenth century (Cambridge, 1996). ¹⁸ Blok, ‘Symbolic vocabulary of executions’, 49. ¹⁹ Watt, Choosing death, 29. ²⁰ A-M. Kilday, Women and violent crime in Enlightenment Scotland (Woodbridge, 2007), seems to assume that the apparent use of force by Scottish women is an expression of societal forces, without fully considering the legal and evidential ﬁlters that the judicial system imposes on the evidence.

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means of death in Scotland accords closely with those found elsewhere in Britain and Europe.²¹ Comparative history throws up contrasts, but it also highlights intriguing similarities. One is the search for remedies to problems of order, demonstrated in enhanced corporal sanctions against suicide; another is attempts to create trust and recreate community in handling forfeiture. In their different ways, Scotland and England illustrate the constructive (if sometimes competitive) dialectic between lordship and fellowship, hierarchy and community that von Gierke suggested. It survived intact until the mid-seventeenth century and was not wholly replaced until the full-blown emergence of theories of individual natural rights, coupled with descending practices of government, polarized ideas about sources of authority in the eighteenth century.²² In Maine’s terms the outcome was the contractual society; in Vinogradoff’s one based on the ‘coordination of individual wills’; in Muldrew’s the architectural community, each situated within a legally consistent and transparent world where individuals policed themselves, or were persuaded to act in certain ways by media like the press. Such grand themes provide the bridge between Scotland and England. Adopting a comparative viewpoint helps to distinguish between what were truly local or regional practices, and national or international issues. At one level this book reinforces Marc Bloch’s warning to ‘historians who are too inclined to see the causes of local social transformations as exclusively local’ when ‘a general phenomenon can only be produced by equally general causes’.²³ By all means, we should ‘learn to become sensitive to speciﬁc differences’, but we must also ‘learn not to attach too much importance to local pseudocauses’.²⁴ Yet superﬁcial similarities in problems and the broad outline of resolutions should not detract from the considerable differences in the precise solutions reached, for responses were shaped by the different political ideologies and laws of the component parts of Britain. Scottish patterns and procedures were not truly ‘continental’, but nor were they ‘British’ (in the sense coined after 1707). Diverse corporal punishments and different ways of dealing with the material aftermath of suicide support the case for a comparative history of the component parts of Britain, rather than for a ‘new British history’. John Pocock long ago argued that British history ‘must be a plural history, tracing the processes by which a diversity of societies, nationalities, and political structures came into being’.²⁵ Britain may have had a single monarchy from 1603, but contemporaries recognized the different prerogatives, privileges, and jurisdictions pertaining to ²¹ NAS AD12/11–12. ²² Reynolds, ‘Secular power’, 21. ²³ M. Bloch, ‘A contribution towards a comparative history of European societies’, in Land and work in medieval Europe: Selected papers by Marc Bloch translated by J. E. Anderson (London, 1967), 56. ²⁴ Ibid., 73. ²⁵ Pocock, ‘Limits and divisions of British history’, 320.

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the crown in its component parts.²⁶ Perhaps there was a broad, functional equivalence between forfeiture in the two countries, or between deodand in England and escheat in Scotland, but equiparation of the forms and concepts is quite wrong. For example, forfeiture was administered centrally by the crown (speciﬁcally the royal court and the Exchequer) in Scotland, and by the court and almoner in England; proceeds were hypothecated to charity in England, whereas they were a part of the ‘ordinary revenue’ of the Scottish crown; both the theory and practice of deodand were effectively unknown in Scotland. ‘The state’ differed in Scotland and England, not because the latter was stronger or more centralized or more modern than the former, but because each operated within a different part of the spectrum of lordship, with different types of administrative help, and with different legal, social, and religious emphases. In Scotland, royal intervention corrected weak lordship, while in England it regulated competing or oppressive lordship. Lordship itself differed because landowners’ legal rights were not the same in the two countries and the poor laws functioned in radically different ways. Where one based on generalized rating developed in England, there was no comparable progression in Scotland, and changes in relief cannot have played any part in the decline of escheat for suicide there. Finally, the reaction against canon law inﬂuence on the law of obligations in early sixteenth-century England had no parallel in Scotland at the time of its Reformation, creating a more seamless transition in the way debt, credit, and testamentary matters were handled—without the intervention of the royal almoner in Scotland before or after 1560. The search for remedies to problems of order and trust was therefore shaped by what might be termed ‘societal forces’. Another was the law. Of punishments for suicide in medieval Germany, Sandy Murray believes, ‘we are confronted with two maps: one, of customs concerning the body, responds largely to ethnic inﬂuences, the other, of those concerning the property, to legal ones; so to speak, one to lore, the other to law’.²⁷ He is right to reﬁne this by noting that conﬁscation ‘reﬂects the higher receptivity of customs concerning property to the articulate legal inﬂuences’, for it is more accurate to state that forfeiture is just more obviously and formally legalized. Afﬂictive punishments may reﬂect cultural (including ethnic) norms, but their geography too is legal, and we should be cautious about explaining regional or national differences by states of mind, or attributing them to culturally embedded values detached from the contexts that reproduced and manifested them. Maitland warned: ‘National character, the genius of a people, is a wonder-working spirit which stands at the beck ²⁶ B. P. Levack, ‘Toward a more perfect union: England, Scotland, and the constitution’, in B. C. Malament, After the Reformation (Manchester, 1980), 64–5. A. Kiralfy, ‘Independent legal systems under a common dynastic rule: The examples of England and Hungary’, JLH 11 (1990), 118–28. ²⁷ Murray, Suicide, vol. 2, 73.

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and call of any historian.’²⁸ Geertz concludes: ‘Society’s forms are culture’s substance’.²⁹ The signiﬁcance of regional legal cultures to the map of punishment (and other social forms) may indeed have been underestimated by English historians preoccupied by the commonality of the common law, who assume that any apparent regional variation was a function of the unevenness of enforcement. It is common to ﬁnd assertions that, on the one hand, governing marcher regions was both a particular problem for, and a mark of the worth of, a government and, on the other, that the state expanded its power into these areas more slowly than in ‘core’ regions.³⁰ Steve Ellis argues that ‘the borderlands’ had a different topography, settlement, and society, meaning that central control was weaker.³¹ Yet areas close to London had to be governed as well (or better) than outlying ones, and Tudor interest in the north was less than is commonly assumed.³² More than this, regional difference may be a sign of distinctiveness rather than failure. Regions with different cultural patterns, legal inﬂuences, and social structures experienced aspects of centralization in different ways, meaning that the level of assimilation of institutions like, for example, statutory poor relief in England should be seen as selective, rather than incomplete. It has been suggested in recent studies of poor relief that society and economy were more ‘moral’ in the north of England, with greater reliance on landowners’ benefactions and kinship as sources of support.³³ Poor relief patterns of the north of England resembled those of Scotland in placing less reliance on rating.³⁴ However, the different experience of centralization does not mean that one part of England was less centralized than another: to a greater or lesser extent English government had comprised ‘an inward-looking periphery and an outward-looking centre’ since the Anglo-Saxon era.³⁵ While broadly true, the precise nature of relations between centre and locality varied regionally, thanks to their different historical developments. There was a common law, but the rules that governed its execution were altered to suit the needs of distinctive jurisdictions (most obviously the palatinates).³⁶ Of course it is also possible that the social relationships and personal commitments found in north and west ²⁸ F. W. Maitland, English law and the Renaissance (Cambridge, 1901), 23. ²⁹ Geertz, Interpretation of cultures, 28. ³⁰ S. G. Ellis, Tudor frontiers and noble power: The making of the British state ( Oxford, 1995), 257–60. Hindle, State and social change. ³¹ Ellis, Tudor frontiers, 258. ³² Wrightson, ‘Two concepts of order’, 34–40. G. W. Bernard, Power and politics in Tudor England (Aldershot, 2000), 32–3. ³³ S. King, ‘Reconstructing lives: The poor, the poor law and welfare in Calverley, 1650–1820’, SH 22 (1997), 318–38. C. S. Hallas, ‘Poverty and pragmatism in the northern uplands of England: The north Yorkshire Pennines, c.1770–1900’, SH 25 (2000), 67–84. ³⁴ R. A. Houston, ‘Poor relief and the dangerous and criminal insane in Scotland, c.1740–1840’, Journal of Social History 40 (2006), 453–76. ³⁵ Smith, ‘Modernization’, 169. Campbell, Anglo-Saxon state. ³⁶ Ellis, ‘Tudor Northumberland’, 35–6. Neville, ‘Ofﬁce of coroner’, 48–9.

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Britain were weaker in the south-east of England, where formal poor relief systems based on rating were part of a more political economy of poverty from an early date. Thus social structure mediated both law and centralization. An even more obvious example is Ireland. It had the same poor law as England, but parish organization of poor relief proved impossible because villages lacked local elites of prosperous farmers, professionals, and tradesmen, and because of the fragmented and competitive religious situation.³⁷ Yet such pronounced national differences should not blind us to regional variations, which are subtler than ‘core’ v. ‘periphery’, or centralized v. devolved, and which may have different explanations. Indeed, there are other manifestations (and perhaps explanations) of geographical difference. Maitland thought that the northern counties were more continental in their law than was the case elsewhere in England. He wrote to George Neilson in October 1898: ‘Scotch medieval law is to me so French, so Norman—and the change from English to Scottish is not sudden at the border, but is ‘‘mediated’’ by the condition of our four northern counties, which seem to me the Frenchest part of England. . . . It seems as if the later infusion of French jurisprudence met a kindred element in Scotland that had been there a very long time’.³⁸ More pithily, he wrote to Neilson a few days later: ‘I have long had the dream that Scotland is the link between England and Normandy’.³⁹ Then in February 1899: ‘there was a Norman, i.e. French or Frankish conquest of Scotland which was in some respects completer than the bloodier conquest of England.’⁴⁰ Maitland’s observation provides essential background to Vinogradoff’s comment that the reception of Roman law in late ﬁfteenth- and sixteenth-century Scotland ‘can hardly be explained by the mere compulsory grafting of foreign juridical expedients. Social psychology had to perform its own share of work by way of adaptation’.⁴¹ This ‘psychology’ may itself have come from earlier legal receptions rather than being some racial or ethnic characteristic, for (as Vinogradoff remarked earlier in the same piece) it is wrong ‘to treat law as a department of folklore akin to language’.⁴² The exact direction of the relationship is, however, less important than the premise that it lies within the ﬁeld of ‘historical jurisprudence’, as meant by Maine and others as ‘an examination of the history of the society living under that system’ for legal arrangements were an aspect of social organization.⁴³ ³⁷ D. Dickson, ‘In search of the old Irish poor law’, in R. Mitchison and P. Roebuck (eds), Economy and society in Scotland and Ireland, 1500 –1939 (Edinburgh, 1988), 149–59. ³⁸ P. N. R. Zutshi (ed.), The letters of Frederic William Maitland, vol. 2 (London, 1995), no. 175. ³⁹ Ibid., no. 178. ⁴⁰ E. L. G. Stones (ed.), F. W. Maitland: letters to George Neilson (Glasgow, 1976), 29. ⁴¹ Vinogradoff, ‘Customary law’, 421–2. ⁴² Ibid., 410. On the limits of racial interpretations of punishment regimes see Egmond, ‘Execution, dissection, pain’, 105. ⁴³ N. Duxbury, ‘English jurisprudence between Austin and Hart’, Virginia Law Review 91 (2005), 22. N. O’Brien, ‘In vino veritas’: Truth and method in Vinogradoff’s historical jurisprudence’, JLH 29 (2008), 39–61.

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Maitland’s observation, given substance in the case of dragging suicides, is a reminder that regions were made up of customs, beliefs, laws, and social structures. Staking may have been a ‘racial’ practice deriving from the Germanic inﬂuence on the eastern fringe of southern England, possibly existing from prehistoric times, but more important after the Romans left Britain and in the face of the Norse threat. However, a similar racial explanation is harder to propose for the distribution of dragging and gibbeting because of the extremely varied origins of the inhabitants of northern Britain. An ethnic geography of punishment is no easier to sustain because areas of the so-called ‘Celtic fringe’ (more properly a Celto-Norse fringe or crescent) had different punishment regimes. Contrary to Maitland, medieval Scots law was not solely Anglo-Norman, and there were strong indigenous elements (including Celtic, Norse, and British, in the proper ancient meaning of the word) that mediated any obvious similarity. In early modern times the branks or scold’s bridle, found in Scotland and in the towns of the north of England, does not seem to have been used in Wales and Ireland (outside Ulster), though other shaming punishments were. Staking was found in Wales and in Ireland.⁴⁴ Shared beliefs that may have Celtic origins include that in the healing power of water, though the English too subscribed: heretic John Wycliffe was exhumed in 1428, his remains burned, and the ashes thrown in a stream ‘to the damnation and destruction of his memory’.⁴⁵ And water rituals were a more regular and judicial way of disposing of suicides among early modern German peoples than Celtic. Instead of focusing on race it may be more fruitful to consider the way law inﬂuenced geographical variation. Perhaps we should talk less glibly of a Celtic or Celto-Norse fringe than a Franco-Italian one. Ways of punishing the dead and handling the aftermath of suicide were not ‘continental’ in any part of Britain, but nor were they purely ‘British’ either. The most Norman (or even Roman) parts of Britain were the burghs or boroughs, whose privileges and important elements of their practices had been conferred in the twelfth and thirteenth centuries. Their distinctive punishment regimes lie in these legal origins, for, as Maitland observed, urban historians must neglect ‘neither English life nor Italian thought’.⁴⁶ As in sixteenth-century Germany, public punishments involving shame and humiliation, in both Scotland and northern England, seem to have been mainly conﬁned to the towns and cities.⁴⁷ That Halifax had a guillotine or a town like Manchester inﬂicted corporal punishments on suicides similar to Scotland, and had specialist medical advisers to coroners comparable with ⁴⁴ Gentleman’s Magazine (November 1784), 868. Scotsman (10 October 1818), reporting a soldier who shot himself at Wexford. ⁴⁵ T. F. Thiselton Dyer, Folk lore of Shakespeare (London, 1883), 359. Lyndwood, Provinciale, 284. ⁴⁶ F. W. Maitland, Township and borough (Cambridge, 1898), vi. ⁴⁷ S. Lidman, ‘H¨ape¨an merkityksest¨a ja Hy¨odynt¨amisest¨a rangaistuksissa’, Historiallinen Aikakauskirja 100, 3 (2002), 258–69.

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continental or Scottish practice is a function of their historic legal code. When the north of England moved into a creative phase of punishment in the seventeenth century, it reached for examples from the civil law latent in the minds of the learned, rather than in the common law, following a tradition that had informed important earlier transitions in English law, including Bracton and the rise of Chancery.⁴⁸ We may suggest that the geography of dragging and staking shows the regional legal cultures of early modern Britain as much as the racial origin of its people. In the same way, different legal assumptions behind poor relief reﬂected or reinforced different attitudes towards entitlements. Styles of punishment for all sorts of offenders were different in the north (and south-west) from the south-east; execution rates and even the propensity to prosecute itself were much lower.⁴⁹ The importance and persistence of shaming punishments in the north of England (and Scotland) and the radically different depiction of suicides in the provincial, compared with the metropolitan, press also point to a different mental world. Thus, the north of England (and probably also the south-west) may not have been a backward or imperfect version of the south-east waiting to catch up, but something subtly different. In Scotland too there are tantalizing hints of geographical variations in the way people related to law and government, not only between Highland and Lowland, but also between different parts of the Lowlands. Glasgow produced just three recorded donations of escheats to Edinburgh’s thirty in the late sixteenth and early seventeenth century, and only ﬁve suicides compared with eighty-four in the Crown Ofﬁce’s ‘Reports of Deaths’, 1848–57. Regions and ‘local vernaculars’ in British history await further study.⁵⁰

C O D A : W H E N D I D S U I C I D E B E C O M E AC C E P TA B L E ? Changes in the punishment of suicides are conventionally attributed (implicitly or explicitly) to a civilizing or modernizing process, marked by a more or less linear shift from harsh to lenient sanctions. Such narratives rely at least partly on the revulsion of modern observers for older styles of punishment, and punishing the dead was surely, in Thompson’s words, a form of ‘psychic terrorism’.⁵¹ Yet this is at once emotive and, as Foucault noted, by attributing change ‘too readily and too emphatically to a process of ‘‘humanization’’ ’, it also too easily assumes ⁴⁸ Vinogradoff, Roman law, 97–118. ⁴⁹ King, Crime and law, 66–8. ⁵⁰ P. Hudson and S. King, ‘Two textile townships c.1660–1820: A comparative demographic analysis’, EcHR 53 (2000), 737. R. R. Davies, ‘The medieval state: The tyranny of a concept?’, Journal of Historical Sociology 16 (2003), 280–300. ⁵¹ Thompson, Customs in common, 530. Foucault, Discipline and punish, 49. Glanville Williams writes of ‘religious terrorism’. G. Williams, The sanctity of life and the criminal law (London, 1958), 234.

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that an elucidation of the process can substitute for an analysis of what happened and why.⁵² More, it leans towards an essentialist, or positivist, view of emotions, and it assumes that new discourses of sensibility amounted to the emergence of ‘politeness’ or ‘civilization’.⁵³ The supposed outcome of the process is once again presented as its reason. Intellectually attractive and culturally familiar as they may be to later historians and philosophers, the ideas of apparent advocates or defenders like Donne and, especially, Hume were marginal to their contemporaries’ understandings of voluntary death. In fact, for centuries people debated, not whether suicide was right in some circumstances, but how great a transgression it was in most others. It was judged situationally, not absolutely, but more negatively than positively. To extrapolate from narrowly conceived examples of virtuous or heroic suicide from Renaissance to Enlightenment is to confuse the margin with the mainstream. When set in the context of newspaper reporting that portrayed suicide as a social and moral problem, such stories demonstrate continuity rather than change in attitudes. Yet there is an enduring ambivalence in attitudes that has puzzled historians. MacDonald and Murphy believe that, in a climate generally condemnatory of suicide, there was an undertow of more sympathetic views that would ultimately prevail. Such a teleological approach ignores the co-existence throughout the period studied of a range of opinions about suicide. It also condemns as simple ‘survivals’, sophisticated arguments in favour of treating suicides in discriminating ways, that were far from simply ebbing undercurrents in the eighteenth and nineteenth century. Michelle Vovelle has tried to resolve the apparent ambiguities by describing ‘stratiﬁcations’ which ensure that different attitudes towards death can co-exist.⁵⁴ He classiﬁes these as ‘traditional’ and ‘innovative’, but this dichotomy is both value loaded and simplistic, for a broad spectrum of attitudes underlay apparent polarities.⁵⁵ Contemporary understandings, in fact, defy simple classiﬁcation, ranging from perplexed comprehension of the individual suicide to highly critical religious, medical, and legal tracts about the meaning of self-murder as a phenomenon. Better to follow a line that the symbolic effectiveness of bodies generally lies in their ambiguity for, depending on the social and ‘political’ distance of the observer, they can be viewed in multiple ways and assigned meanings or values that are not only varied, but also sometimes contradictory.⁵⁶ Attitudes did not change from harshness to leniency between the early sixteenth century and the mid-nineteenth century, but manifested varying forms of ambivalence, also expressed in a variety of cultural forms not ⁵² Foucault, Discipline and punish, 7. ⁵³ Pollock, ‘Anger and relationships’, 588. ⁵⁴ M. Vovelle, Ideologies and mentalities translated by E. O’Flaherty (Cambridge, 1990), 69–70. ⁵⁵ As is that of MacDonald and Murphy, Sleepless souls, 215. See the effective critique of their ambivalence by Lederer, ‘Dishonorable dead’, 350n. ⁵⁶ Verdery, Political lives, 28. Walsham, Charitable hatred, ch. 2, 5. Haeberli, ‘Le suicide’, 128, offers a similar conclusion for eighteenth-century Geneva.

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fully considered here, including broadsides, ballads, and novels. The best way of summarizing approaches is Robert Burton’s early seventeenth-century rendition of Seneca the elder’s line: ‘bee justly offended with him as hee was a murderer, but pity him now as a dead man’.⁵⁷ Since British and European scholars started writing about the changing laws surrounding suicide in the nineteenth century, they have remarked on the late, hesitant, and irregular progress of ‘progress’. This is most easily evidenced by the lifting of formal judicial sanctions. In France the Ordinance Criminelle, promulgated in 1670 and renewed in 1712 (c. 22 deals with suicide processes), clariﬁed the criminal law.⁵⁸ However, France abolished all rights of desecration in 1770, and a legal code of 1791 decriminalized suicide, even if penalties were later re-imposed. Yet from the 1730s, if not before, corporal punishments in Paris were tokenized: performed not on the body of the suicide, but on an efﬁgy.⁵⁹ When Beccaria made his famous remark about whipping a statue in 1764, most punishments for suicide were dead letters—though they still had advocates.⁶⁰ Article 8 of the chapter on suicide in Jean de Sales’ De la philosophie de la nature has an engraving of an impaled corpse being dragged through the streets on a hurdle as the distraught wife and children of the dead man appeal to public opinion against the penalty. The article takes the form of a m´emoire to legislators from the widow, in which she exclaims that she has been stigmatized without doing any wrong (devenue vile sans cesser d’ˆetre honnˆete). She points out that the authorities have staked her husband’s body, dragged it through Paris, and denied to his bloody remains the funerary rites accorded to the dead to assuage the grief of the living.⁶¹ The emotional shock of de Sales’ description was more deeply felt because it was a thing of the past, rather than an indictment of present practice. By the time he wrote, dragging had ceased, and many French parish priests just buried suicides, albeit simply and discreetly.⁶² Yet popular attitudes changed less. Mid-nineteenth-century inquiries showed that some French clergy kept an unblessed section of the communal cemetery for mort-n´es and suicides; sometimes communities demanded that those the clergy might have tolerated should be buried in unconsecrated ground.⁶³ Elsewhere in Europe a Prussian law of 1794 reiterated that impenitent suicides should be buried by the executioner, and ⁵⁷ Burton, Anatomy of melancholy, vol. 1, 438. ⁵⁸ Joblin, ‘Le suicide’, 95–6. ⁵⁹ Merrick, ‘Patterns of suicide’, 30. I owe the additional information to Jeffrey Merrick. ⁶⁰ Bellamy (ed.), Beccaria, 83. Dupont-Bouchat, ‘Guilt and individual consciousness’, 133. ⁶¹ De la philosophie de la nature, ou trait´e de morale pour le genre humain . . . ( London, 1789 [sic]), vol. 5, ch. 9, art. 1–9 (385–452; illustration opposite p. 445). ⁶² Merrick, ‘Patterns of suicide’, 25, 26. A. Croix, La Bretagne aux 16e et 17e si`ecles: La vie, la mort, la foi 2 vols. (Paris, 1981), vol. 2, 1001–5. F. Lebrun, Les hommes et la mort en Anjou aux 17e et 18e si`ecles (Paris, 1971), 418. Vandekerckhove, On punishment, 66–7. Moore, A full inquiry, vol. 1, 304n. ⁶³ T. Kselman, ‘Funeral conﬂicts in nineteenth-century France’, Comparative Studies in Society and History 30 (1988), 317, 320–1.

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there are contemporary examples of popular desecration.⁶⁴ Not until 1873 was a law passed preventing clergy and people discriminating against the bodies of suicides.⁶⁵ A Bavarian statute of 1813 abolished punishment for suicide or attempted suicide, while leaving in place that for instigating or aiding the act of self-murder.⁶⁶ Norwegian law prohibited churchyard burial for culpable suicides from 1687 until 1842, but sermons were not allowed until 1902.⁶⁷ In Britain the change was gradual and equally late, with attitudes remaining similarly ambivalent. Prohibiting English coroners from ordering the burial of a felo de se in the highway and allowing burial in a churchyard or cemetery, even the 1823 law afﬁrmed the denial to suicides of the religious rites of Christian burial and required their interment at night. It reafﬁrmed existing ‘laws or usages relating to the burial of such persons’. In a much-expanded section on burial of suicides in the eighth edition of Burn’s Ecclesiastical law (1824), the editor, Robert Tyrwhitt, reprinted verbatim the wording of the ﬁrst (1763) under the heading ‘Suicide’: ‘By the rubric before the burial ofﬁce; persons who have laid violent hands upon themselves, shall not have that ofﬁce used at their interment.’⁶⁸ He re-afﬁrmed paragraph two of 4 Geo. IV, c. 52: ‘Nothing herein shall authorize the performing any of the rites of christian burial on the interment of the remains of any such person, or alter the laws or usages relating to the burial of such persons’.⁶⁹ Equally clear was the restatement in Maddy’s Digest of 1855: ‘It is not a matter of opinion—it is not a matter of expediency, and benevolence—whether a clergyman shall administer the burial service, or shall refuse it, for the Rubric, conﬁrmed by Statute 13 & 14 Car. II., expressly enjoins him not to’.⁷⁰ In a pamphlet of 1861 addressed to the bishop of Norwich, Rev. George Gould argued against lumping the unbaptized with ‘the excommunicate who are lawfully cut off from the church of Christ, and with suicides who cannot by any stretch of charity be regarded as members of the body of Christ’.⁷¹ In 1882 45 & 46 Victoria, c. 19 (‘An Act to amend the law relating to the interment of any person found felo de se’) removed the requirement for night-time burial of a felo de se and required, in effect, all bodies to be buried alike. It applied to England, but not to Scotland or Ireland. ⁶⁴ H. Brunschwig, La crise de l’´etat Prussien a` la ﬁn du XVIIIe si`ecle et la gen`ese de la mentalit´e romantique (Paris, 1847), 79. ⁶⁵ R. J. Evans, Rituals of retribution: Capital punishment in Germany, 1600 –1987 (Oxford, 1996), 61. Baumann, Recht auf den eigenen Tod , 19, 31. ⁶⁶ Manson, ‘Suicide as a crime’, 318. ⁶⁷ N. Retterstøl, ‘Suicide in Norway’, in N. L. Farberow, Suicide in different cultures (Baltimore, 1975), 78–9. ⁶⁸ Burn, Ecclesiastical law (8th edition), vol. 3, 377. The word ‘rubric’ is spelled ‘rubrick’ in the 1763 edition. ⁶⁹ Burn, Ecclesiastical law (8th edition), vol. 1, 267. ⁷⁰ Maddy, Digest, 70. This is based on Kemp v. Wickes and the form of words is widely reproduced in other nineteenth-century digests. ⁷¹ G. Gould, On the refusal of Christian burial to the unbaptized (London, 1861), 31–2.

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Pinning down attitudes and practices is harder than charting prescription or proscription, but any time the ‘humanitarian moment’ seems to have arrived, it is held up by social concern or religious attitudes. Nineteenth-century insurance companies, like Friendly Societies before them, consistently refused to pay out on policies where the insured committed suicide, and a number of legal judgments in the 1840s reinforced their position. The War ofﬁce too refused widows’ pensions to suicides’ dependants until the Victorian era.⁷² Insurance companies gradually removed the formal exclusion of suicides and were increasingly likely to pay out to the beneﬁciaries, not because such deaths were viewed more ‘sympathetically’, but because boards of management found it bad for business to refuse.⁷³ Pat Jalland argues that it was not until the later Victorian period that much support emerged for a secular view of suicide as primarily a medical issue, or one arising from socio-economic circumstances.⁷⁴ Born of biblical allowance for the co-existence (and inter-relationship) of science and religion, the problems of nature and super-nature that Victorians and Edwardians dealt with were the same as those which exercised Bright and Burton three centuries earlier—albeit in a very different scientiﬁc and biomedical environment.⁷⁵ Throughout the nineteenth century, a strong current of both religious and non-religious opinion condemned suicide as the result of a failure of will or ‘character’, and nobody thought it was ‘glamorous, courageous, or right’.⁷⁶ In 1884 a contributor to the Lancet concluded that for most suicides ‘it is not their psychical, but their moral condition which is at fault’.⁷⁷ It was not until 1961 that the British parliament decriminalized self-murder and eliminated the category of felo de se from recognized causes of death. It did not normalize suicide, and it is still illegal in Britain to ‘aid or abet’ persons taking their own life; anyone who does so may face a maximum fourteen years’ imprisonment. Debates about the right to end life deal with the margin (the terminally sick), not the mainstream, and even today most people think suicide is not the right way to die: a properly ‘humane’ attitude because it belongs to mankind to cherish human life. De-criminalizing suicide in 1961 did not de-pathologize it, any more than the 1823 act concerning burial brought felones de se fully into the Christian fold, for it allowed clergy to perform a service of their own choosing. A climate of concern with voluntary death (including euthanasia, in the modern sense of the word) had been signposted in 1958 by Glanville Williams’ Sanctity of life. In the following year, the Church of England issued a pamphlet summarizing the deliberations of a working party set up by the Archbishop ⁷² NA WO 43/641, ff. 334–334v, 355, 357, 359. ⁷³ W. W. Westcott, Suicide: Its history, literature, jurisprudence, causation, and prevention (London, 1885), 51–4. ⁷⁴ P. Jalland, Death and the Victorian family (Oxford, 1996), 70–1. ⁷⁵ Hayward, ‘Demonology, neurology, and medicine’, 39. ⁷⁶ Anderson, Suicide, 242. ⁷⁷ Quoted in Jalland, Death, 71.

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of Canterbury. Its premise was that ‘suicide is an act which surely demands some kind of moral judgement from us; we cannot treat it merely as a mental aberration.’⁷⁸ Its aim was to reinforce the notion that ethical choice necessarily enters into suicide, no matter how medically pathologized or even trivialized it had become. Its conclusions (‘speciﬁcally Christian proposals’), albeit carefully worded to accommodate the context of modern law and sensibilities, were reminiscent of a prominent strain in the thought of eighteenth- and nineteenthcentury churchmen. In the case of attempted suicides, it argued, ‘the State should show its concern by means which lie outside the penal code as such’, the church responding (as it had for centuries) by more thorough pastoral concern.⁷⁹ ‘In the case of suicide . . . the State might properly express its evaluation of human life by retaining, for instance, secondary parties’ liability. The Christian Church consistently with its theology of death can, where necessary, justiﬁably provide a special form of burial service, and in doing this it also preserves a moral judgement on some kinds of suicide which we believe it to be important not to overlook.’⁸⁰ At the time of writing, English canon law holds the 68th Canon still to be in force.⁸¹ ⁷⁸ Ought suicide to be a crime? A discussion of suicide, attempted suicide and the law (London, 1959), 7. ⁷⁹ Ibid., 29–34 (quotation at p 34). ⁸⁰ Ibid., 34. ⁸¹ E. Garth Moore, An introduction to canon law (Oxford, 1967), 93. On the practical treatment of such burials see N. Doe, The legal framework of the Church of England: a critical study in a comparative context (Oxford, 1996), 392.

Select Bibliography P R I N T E D P R I M A RY S O U RC E S Accounts of the Lord High Treasurer of Scotland, 1473–1580 13 vols. (Edinburgh, 1877–1978). The acts of the parliaments of Scotland, 1124–1707 11 vols. (Edinburgh, 1814–44). Bryson, W. H., Equity cases in the Court of Exchequer, 1660–1714 (Tempe, Az., 2007). The history of the Kirk of Scotland. By Mr David Calderwood, sometime minister of Crailing, 8 vols. ed. T. Thomson (Edinburgh, 1845). Cameron, J. (ed.), The justiciary records of Argyll and the Isles, 1664–1705, vol. 1 (Edinburgh, 1949). Chronological notes of Scottish affairs, from 1680 till 1701; being chieﬂy taken from the diary of Lord Fountainhall (Edinburgh, 1822). Dickinson, W. C. (ed.), The sheriff court book of Fife, 1515–1522 (Edinburgh, 1928). (ed.), The court book of the barony of Carnwath, 1523–1542 (Edinburgh, 1937). Dobson, R. B. (ed.), York city chamberlains’ account rolls, 1396–1500 (Gateshead, 1980). Earwaker, J. P. (ed.), The constables’ accounts of the manor of Manchester 3 vols. (Manchester, 1891–2). Extracts from the records of the burgh of Edinburgh, 1403–1718 13 vols. (Edinburgh, 1869–1967). Fergus, T. D. (ed.), Quoniam Attachiamenta (Edinburgh, 1996). Fincham, K. (ed.), Visitation articles and injunctions of the early Stuart church 2 vols (Woodbridge, 1998). Imrie, J. (ed.), The justiciary records of Argyll and the Isles, 1664–1742, vol. 2 (Edinburgh, 1969). Latham, R. and Matthews, W. (eds), The diary of Samuel Pepys 11 vols. (London, 1971–2001). Littlejohn, D. (ed.), Records of the Sheriff Court of Aberdeenshire 3 vols. (Aberdeen, 1904–7). The Register of the Privy Council of Scotland 36 vols. in 3 series (Edinburgh, 1877–1970). The Register of the Privy Seal of Scotland vols. IV–VIII (Edinburgh, 1952–82). Pryde, G. S. (ed.), Ayr burgh accounts, 1534–1624 (Edinburgh, 1937). Raine, A., York civic records 8 vols. (1939–53). Renwick, R. (ed.), Extracts from the records of the royal burgh of Stirling, A.D. 1519–1666 (Glasgow, 1887). Twemlow, J. A. (ed.), Liverpool town books: Proceedings of assemblies, common councils, portmoot books etc., 1550–1862 [sic.: 1550–1603] 2 vols. (Liverpool, 1918–35). S E C O N D A RY WO R K S A caveat against suicide; wherein the heinious sin of that unnatural crime is clearly pointed out (Glasgow, 1786).

378

Select Bibliography

An introduction to Scottish legal history (Edinburgh, 1958). An introductory survey of the sources and literature of Scots law (Edinburgh, 1936). Anderson, O., Suicide in Victorian and Edwardian England (Oxford, 1987). Andrew, D. T., ‘Debate: The secularization of suicide in England, 1660–1800’, P&P 119 (1988). ´ hAnnrach´ain, T. (eds), Community in early modern Ireland (Dublin, Armstrong, R. and O 2006). Arnold, M. S. et al (eds), On the laws and customs of England (Chapel Hill, 1981). Arnot, H., A collection and abridgement of celebrated criminal trials in Scotland, from A.D. 1536, to 1784 (Edinburgh, 1785). Ault, W. O., Private jurisdiction in England (New Haven, 1923). Bailey, W. ‘This rash act’: Suicide across the life cycle in the Victorian city (Stanford, 1998). Baker, J. H., ‘New light on Slade’s case, part II’, Cambridge Law Journal 29 (1971). An introduction to English legal history (London, 2002). The Oxford history of the laws of England. Volume VI, 1483–1558 (Oxford, 2003). (ed.), Reports of cases from the time of King Henry VIII 2 vols consecutively paginated (London, 2003–4). An institute of the laws of Scotland in civil rights . . . by Andrew McDouall [Lord Bankton] 3 vols. (Edinburgh, 1993–5). Barnes, T. G., ‘Due process and slow process in the late Elizabethan—early Stuart Star Chamber’, AJLH 6 (1962). ‘Star chamber and the sophistication of the criminal law’, Criminal Law Review (1977). Baumann, U., Vom Recht auf den eigenen Tod: die Geschichte des Suizids vom 18. bis zum 20. Jahrhundert (Weimar, 2001). Bayet, A., Le suicide et la morale (Paris, 1922). Beattie, J. M., Crime and the courts in England, 1660–1800 (Oxford, 1986). ‘The royal pardon and criminal procedure in early modern England’, Historical Papers [Canada] (1987). Policing and punishment in London, 1660–1750: Urban crime and the limits of terror (Oxford, 2001). Beauchamp, T. L., ‘An analysis of Hume’s essay ‘‘On Suicide’’ ’, Review of Metaphysics 30 (1976). Beier, A. L., Cannadine, D. and Rosenheim, J. (eds), The ﬁrst modern society (Cambridge, 1989). Bellamy, J. G., Crime and public order in England in the later Middle Ages (London, 1973). Criminal law and society in late medieval and Tudor England (Gloucester, 1984). The criminal trial in later medieval England: Felony before the courts from Edward I to the sixteenth century (Stroud, 1998). Bellamy, R. (ed.), Beccaria: On crimes and punishments and other writings (Cambridge, 1995). The works of Jeremy Bentham, now ﬁrst collected; under the superintendence of his executor, John Bowring 2 vols. (Edinburgh, 1838). Bisson, T. N., ‘Medieval lordship’, Speculum 70 (1995). Black, R., ‘A historical survey of delictual liability in Scotland for personal injuries and death’, Comparative and International Law Journal of Southern Africa 8 (1975).

Select Bibliography

379

Blackstone, W., Commentaries of the laws of England 4 vols. (Oxford, 1765–9). Bossy, J. (ed.), Disputes and settlements: Law and human relations in the West (Cambridge, 1983). Peace in the post-Reformation (Cambridge, 1998). Bound, F., ‘Writing the self? Love and the letter in England, c.1660–1760’, Literature & History 11 (2002). Bourdieu, P., Outline of a theory of practice translated by R. Nice (Cambridge, 1977). Braddick, M. (ed.), Political culture in later medieval England: Essays by Simon Walker (Manchester, 2006). Braddick, M. J. and Walter, J. (eds), Negotiating power in early modern society: Order, hierarchy and subordination in Britain and Ireland (Cambridge, 2001). Brewer, J. and Styles, J. (eds), An ungovernable people: The English and their law in the seventeenth and eighteenth centuries (London, 1980). Brooks, C. W. Pettyfoggers and vipers of the commonwealth: The ‘lower branch’ of the legal profession in early modern England (Cambridge, 1986). Lawyers, litigation and English society since 1450 (London, 1998). Law, politics and society in early modern England (Cambridge, 2008). and Lobban, M. (eds), Communities and courts in Britain, 1150–1900 (London, 1997). Brown, A. L., The governance of late medieval England, 1272–1461 (London, 1989). Brown, K. M., Bloodfeud in Scotland, 1573–1625: Violence, justice and politics in early modern society (Edinburgh, 1986). Burke, P., Harrison, B. and Slack, P. (eds), Civil histories: Essays presented to Sir Keith Thomas (Oxford, 2000). Burn, R., Ecclesiastical law 2 vols (London, 1763). Burney, I. A., Bodies of evidence: Medicine and the politics of the English inquest, 1830–1926 (Baltimore, 2000). Butler, S. M., ‘Degrees of culpability: Suicide verdicts, mercy, and the jury in medieval England’, Journal of Medieval and Early Modern Studies 36 (2006). ‘Local concerns: Suicide and jury behavior in medieval England’, History Compass 4/5 (2006). Carrier, J. G., Gifts and commodities: Exchange and Western capitalism since 1700 (London, 1995). Clerk, J. and Scrope, J., Historical view of the forms and powers of the Court of Exchequer in Scotland (Edinburgh, 1820). Clyde, J. A., The Jus Feudale of Sir Thomas Craig of Riccarton . . . (Edinburgh, 1934). Cobb, R., Death in Paris (Oxford, 1978). Cockburn, J. S. (ed.), Crime in England, 1550 –1800 (London, 1977). Collinson, G. D., A treatise on the laws concerning idiots, lunatics, and other persons non compotes mentis . . . 2 vols. (London, 1812). Connolly, S. J. (ed.), Kingdoms united? Great Britain and Ireland since 1500: integration and diversity (Dublin, 1999). Coutts, W. K., The business of the College of Justice in 1600 (Edinburgh, 2003). Cramsie, J., Kingship and crown ﬁnance under James VI and I (Woodbridge, 2002). Cressy, D., Birth, marriage, and death (Oxford, 1997). Travesties and transgressions in Tudor and Stuart England: Tales of discord and dissension (Oxford, 2000).

380

Select Bibliography

Crocker, L. G., ‘The discussion of suicide in the eighteenth century’, Journal of the History of Ideas 13 (1952). Crowther, M. A., ‘Scotland: A country with no criminal record’, Scottish Economic and Social History 12 (1992). Dalrymple, J., An essay towards a general history of feudal property in Great Britain (London, 1759). Dalton, M., The countrey justice . . . (London, 1626). Dalyell, J. G., The darker superstitions of Scotland, illustrated from history and practice (Edinburgh, 1834). Davis, N. Z., The gift in sixteenth-century France (Oxford, 2000). Dawson, J. P., A history of lay judges (Cambridge, Mass., 1960). Denholm-Young, N., Seignorial administration in England (London, 1937). Devereaux, S. and Grifﬁths, P. (eds), Penal practice and culture, 1500–1900: Punishing the English (London, 2004). Douglas, J., The social meanings of suicide (Princeton N.J., 1967). Dumont, E., ‘La r´epression du suicide’, Revue de Droit P´enal et de Criminologie 40 (1960). Duncan, J. M., Treatise of the parochial ecclesiastical law of Scotland (Edinburgh, 1864). Durkheim, E., Le suicide: ´etude de sociologie (Paris, 1897). Dyer, C., ‘The English medieval village community and its decline’, JBS 33 (1994). An age of transition? Economy and society in England in the later Middle Ages (Oxford, 2005). ‘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). Egmond, F., ‘Execution, dissection, pain and infamy—a morphological investigation’, in F. Egmond and R. Zwijnenberg (eds), Bodily extremities: Preoccupations with the human body in early modern European culture (Aldershot, 2003). Elton, G. R. ‘The rule of law in sixteenth-century England’, in A. J. Slavin (ed.), Tudor men and institutions: Studies in English law and government (Baton Rouge, 1972). The English reports 176 vols. (Edinburgh, 1900–32). Erskine, J., 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). Ewan, L. A., ‘Debt and credit in early modern Scotland: The Grandtully estates, 1650–1750’, (University of Edinburgh Ph.D., 1988). Fedden, H. R., Suicide: A social and historical study (London, 1938). Fenger, O., ‘Selvmord i kultur- og retshistorisk belysning’, R¨attshistoriska Studier series 2, 11 (1985). Finlay, J., ‘James Henryson and the origins of the ofﬁce of king’s advocate in Scotland’, SHR 79 (2000). Fisher, H. A. L. (ed.), The collected papers of Frederic William Maitland 3 vols. (Cambridge, 1911). Fisher, P. J., ‘The politics of sudden death: The ofﬁce and role of the coroner in England and Wales, 1726–1888’ (University of Leicester Ph.D., 2007). Fleming, P., Family and household in medieval England (London, 2001). Ford, J. D., Law and opinion in Scotland during the seventeenth century (Oxford, 2007). Forte, A. D. M., ‘The horse that kills: Some thoughts on deodands, escheats and crime in ﬁfteenth century Scots law’, Tijdschrift voor Rechtsgeschiedenis 58 (1990).

Select Bibliography

381

Foucault, M., Discipline and punish: The birth of the prison translated by M. Sheridan (London, 1977). French, K. L., Gibbs, G. G. and K¨umin, B. A. (eds), The parish in English life, 1400–1600 (Manchester, 1997). Gane, G. H. W., ‘The effect of a pardon in Scots law’, Juridical Review (1980). Garﬁnkel, H., ‘Conditions of successful degradation ceremonies’, American Journal of Sociology 61 (1956). Garnot, B., ‘Justice, infrajustice, parajustice et extrajustice dans la France d’ancien r´egime’, Crime, Histoire et Soci´et´es 4 (2000). Gaskill, M., Crime and mentalities in early modern England (Cambridge, 2000). Gates, B. T., Victorian suicide: Mad crimes and sad histories (Princeton, N.J., 1988). Geertz, C., The interpretation of cultures (London, 1975). Giddens, A., ‘The suicide problem in French sociology’, British Journal of Sociology 16 (1965). Gittings, C., Death, burial and the individual in early modern England (London, 1984). Godbout, J. T. with Caill´e, A., The world of the gift translated by D. Winkler (London, 1998). Godfrey, M., ‘Arbitration and dispute resolution in sixteenth-century Scotland’, Tijdschrift voor Rechtsgeschiedenis 70 (2002). Goffman, E., Relations in public: Microstudies of the public order (Hardmondsworth, 1972). Goodare, J., State and society in early modern Scotland (Oxford, 1999). The government of Scotland, 1560–1625 (Oxford, 2004). ‘Fiscal feudalism in early seventeenth-century Scotland’, Scottish History Society Miscellany XIII ﬁfth series 14 (2004). Gordon, A., Death is for the living (Edinburgh, 1984). Gorringe, T., God’s just vengeance: Crime, violence and the rhetoric of salvation (Cambridge, 1996). Gowland, A., The worlds of Renaissance melancholy: Robert Burton in context (Cambridge, 2006). Graham, M. F., ‘Conﬂict and sacred space in Reformation-era Scotland’, Albion 33 (2001). Gray, C. M., ‘The boundaries of equitable function’, AJLH 20 (1976). Green, T. A., Verdict according to conscience: Perspectives on the English criminal trial jury, 1200–1800 (Chicago, 1985). Guernsey, R. S., Suicide: History of the penal laws relating to it in their legal, social, moral, and religious aspects, in ancient and modern times (New York, 1883). Gunn, S. J., Early Tudor government, 1485–1558 (London, 1995). Guy, J. A., The cardinal’s court: The impact of Thomas Wolsey in Star Chamber (Totowa, N.J., 1977). ‘Law, equity and conscience in Henrician juristic thought’, in A. Fox and J. A. Guy (eds), Reassessing the Henrician age: Humanism, politics and reform, 1500–1550 (Oxford, 1986). Haeberli, L., ‘Le suicide a` Gen`eve au XVIIIe si`ecle’, in Pour une histoire qualitative: ´etudes offertes a` Sven Stelling-Michaud (Geneva, 1975). Hainsworth, D. R., Stewards, lords and people: The estate steward and his world in later Stuart England (Cambridge, 1992).

382

Select Bibliography

Halbwachs, M., Les causes du suicide (Paris, 1930). Harding, V., The dead and the living in Paris and London, 1500–1670 (Cambridge, 2002). Harris, R., Politics and the rise of the press: Britain and France, 1620–1800 (London, 1996). Harris, T. (ed.), The politics of the excluded, c.1500–1850 (London, 2001). Havard, J. D. J., The detection of secret homicide (London, 1960). Heal, F., Hospitality in early modern England (Oxford, 1990). Heal, F. and Holmes, C., The gentry in England and Wales, 1500–1700 (London, 1994). Helmholz, R. H., ‘Assumpsit and ﬁdei laesio’, Law Quarterly Review 91 (1975). ‘Debt claims and probate jurisdiction in historical perspective’, AJLH 23 (1979). ‘Bankruptcy and probate jurisdiction before 1571’, Missouri Law Review 48 (1983). The Oxford history of the laws of England. Volume 1: The canon law and ecclesiastical jurisdiction from 597 to the 1640s (Oxford, 2004). Hewitt, G. R., Scotland under Morton, 1572W80 (Edinburgh, 1982). Higgonet, M., ‘Speaking silences: Women’s suicide’, in S. R. Suleiman (ed.), The female body in Western culture: Contemporary perspectives (London, 1986). Hindle, S., The state and social change in early modern England, 1550–1640 (London, 2000). On the parish: The micro-politics of poor relief in rural England, 1550–1750 (Oxford, 2004). Holinshed, R., The ﬁrste[-laste] volume of the Chronicles of England, Scotlande, and Irelande: Conteyning, the description and chronicles of England, from the ﬁrst inhabiting vnto the conquest . . . (London, 1577). Hoppit, J., Risk and failure in English business, 1700–1800 (Cambridge, 1987). Horrox, R. (ed.), Fifteenth-century attitudes: Perceptions of society in late medieval England (Cambridge, 1994). and Ormrod, W. M. (eds), A social history of England, 1200–1500 (Cambridge, 2006). Houlbrooke, R., Death, religion and the family in England, 1480–1750 (Oxford, 1998). Hoyle, R. W. (ed.), The estates of the English crown, 1558–1640 (Cambridge, 1992). Hume, D., Commentaries on the law of Scotland, respecting crimes 2 vols. (Edinburgh, 1844). Hunnisett, R. F., The medieval coroner (Cambridge, 1961). Huntington, R. and Metcalf, P., Celebrations of death: The anthropology of mortuary ritual (Cambridge, 1979). Hurnard, N. D., The king’s pardon for homicide before A.D. 1307 (Oxford, 1969). Hurstﬁeld, J., ‘The proﬁts of ﬁscal feudalism, 1541–1602’, EcHR 8 (1955). The queen’s wards: Wardship and marriage under Elizabeth I (London, 1958), 343–5. Hyde, L., The gift: Imagination and the erotic life of property (New York, 1979). Ibbetson, D., ‘Fault and absolute liability in pre-modern contract law’, JLH 18 (1997). A historical introduction to the law of obligations (Oxford, 1999). Ignatieff, M., ‘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).

Select Bibliography

383

Ingram, M., Church courts, sex and marriage in England, 1570–1640 (Cambridge, 1987). Ives, E. W. and Manchester, A. H. (eds), Law, litigants and the legal profession (London, 1983). Ives, G., A history of penal methods (London, 1914). Jacob, G., The law-dictionary . . . enlarged and improved by T. E. Tomlins 2 vols. (1729. London, 1797). James, M., Family, lineage and civil society: A study of society, politics and mentality in Durham region 1500–1640 (Oxford, 1974). Society, politics and culture: Studies in early modern England (Cambridge, 1986). Jansson, A., From swords to sorrow: Homicide and suicide in early modern Stockholm (Stockholm, 1998). Jewell, H. M., English local administration in the Middle Ages (Newton Abbot, 1972). Joblin, A., ‘Le suicide a` l’´epoque modern: Un exemple dans la France du nord-ouest: a` Boulogne-sur-Mer’, Revue Historique 129 (1994). Johnstone, N., ‘The Protestant devil: The experience of temptation in early modern England’, JBS 43 (2004). Jones, W. J., The Elizabethan Court of Chancery (Oxford, 1967). ‘The foundations of English bankruptcy: Statutes and commissions of the early modern period’, Transactions of the American Philosophical Society 69 (1979). Juhala, A. L., ‘The Household and Court of King James VI of Scotland, 1567–1603’, (University of Edinburgh Ph.D., 2000). Kermode, J. (ed.), Enterprise and individuals in ﬁfteenth-century England (Stroud, 1991). Kesselring, K. J., Mercy and authority in the Tudor state (Cambridge, 2003). King, P., ‘Newspaper reporting, prosecution practice and perceptions of urban crime: The Colchester crime wave of 1765’, C&C 2 (1987). Crime and law in England, 1750–1840: Remaking justice from the margins (Cambridge, 2006). Kushner, H. I., ‘Suicide, gender, and the fear of modernity in nineteenth-century medical and social thought’, Journal of Social History 26 (1992–3). Laing, D. (ed.), Historical notices of Scottish affairs, selected from the manuscripts of Sir John Lauder of Fountainhall 2 vols. (Edinburgh, 1848). Langbein, J. H., Torture and the law of proof: Europe and England in the ancien r´egime (London, 1977). Lapsley, G. T., The county palatine of Durham: A study in constitutional history (London, 1900). Laqueur, T. W., ‘Bodies, details, and the humanitarian narrative’, in L. Hunt (ed.), The new cultural history (London, 1989). ‘Cemeteries, religion and the culture of capitalism’, in J. Garnett and C. Matthew (eds), Revival and religion since 1700 (London, 1993). Larson, P. L., Conﬂict and compromise in the late medieval countryside: Lords and peasants in Durham, 1349–1400 (London, 2006). Lederer, D., ‘The dishonorable dead: Perceptions of suicide in early modern Germany’, in U. Ecker-Offenh¨auser (ed.), Ehrkonzepte in der Fr¨uhen Neuzeit: Identit¨aten und Abgrenzungen (Berlin, 1998). Lemmings, D. (ed.), The British and their laws in the eighteenth century (Woodbridge, 2005).

384

Select Bibliography

Lenman, B. P. and Parker, G., ‘The state, the community and the criminal law in early modern Europe’, in V. A. C. Gatrell, B. Lenman and G. Parker (eds), Crime and the law: The social history of crime in Western Europe since 1500 (London, 1980). Lind, V., Selbstmord in der fr¨uhen Neuzeit: Diskurs, Lebenswelt und kultureller Wandel am Beispiel der Herzogt¨umer Schleswig und Holstein (G¨ottingen, 1999). Loades, D., Tudor government: Structures of authority in the sixteenth century (Oxford, 1997). Loar, C. A., ‘ ‘‘Go and seek the crowner’’: Coroners’ inquests and the pursuit of justice in early modern England’, (Northwestern University Ph.D., 1998). Macdonald, M., ‘The inner side of wisdom: Suicide in early modern England’, Psychological Medicine 7 (1977). Mystical bedlam: Madness, anxiety, and healing in seventeenth-century England (Cambridge, 1981). ‘The secularization of suicide in England, 1660–1800’, P&P 111 (1986). (ed.), Life’s preservative against self-killing by John Sym (London, 1988). and Murphy, T. R., Sleepless souls: Suicide in early modern England (Oxford, 1990). McGovern, W. M., ‘Contract in medieval England: Wager of law and the effect of death’, Iowa Law Review 54 (1968–9). McGowen, R., ‘The body and punishment in eighteenth-century England’, Journal of Modern History 59 (1987). ‘Getting to know the criminal class in nineteenth-century England’, NineteenthCentury Contexts 14 (1990). 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). MacKenzie, I. M., God’s order and natural law: The works of the Laudian divines (Aldershot, 2002). McMillan, W., The worship of the Scottish reformed church, 1550–1638 (London, 1931). McNeill, P. G. B. (ed.), The practicks of Sir James Balfour of Pittendreich, reproduced from the printed edition of 1754 2 vols. (Edinburgh, 1962–3). MacQueen, H. L., Common law and feudal society in medieval Scotland (Edinburgh, 1993). Madden, C., ‘Royal treatment of feudal casualties in late medieval Scotland’, SHR 55 (1976). Maddern, P. C., Violence and social order: East Anglia, 1422–1442 (Oxford, 1992). Maine, H. S., Ancient law: Its connection with the early history of society, and its relation to modern ideas (London, 1861). Makey, W., The church of the covenant, 1637–1651: Revolution and social change in Scotland (Edinburgh, 1979). Mauss, M., The gift: The form and reasons for exchange in archaic societies translated by W. D. Halls (London, 1990). Merrick, J., ‘Patterns and prosecution of suicide in eighteenth-century Paris’, Historical Reﬂections 16 (1989). Michael, P., ‘From private grief to public testimony: Suicides in Wales, 1832–1914’, in A. Borsay (ed.), Medicine in Wales, c.1800–2000: Public service or private commodity? (Cardiff, 2003). Miller, W. I., Humiliation and other essays on honor, social discomfort, and violence (London, 1993).

Select Bibliography

385

Minois, G., History of suicide: Voluntary death in Western culture translated by L. G. Cochrane (London, 1999). Moore, C., A full inquiry into the subject of suicide. To which are added (as being closely connected with the subject) two treatises on duelling and gaming 2 vols. (London, 1790). Morgan, G. and Rushton, P., Rogues, thieves and the rule of law: The problem of law enforcement in north-east England, 1718–1800 (London, 1998). Morison, W. M., The decisions of the Court of Session . . . in the form of a dictionary 42 vols. (Edinburgh, 1801–7). Morrissey, S. K., Suicide and the body politic in imperial Russia (Cambridge, 2007). Muir, E., Ritual in early modern Europe (Cambridge, 1997). Muldrew, C., The economy of obligation: The culture of credit and social relations in early modern England (London, 1998). Murray, A., Suicide in the Middle Ages 2 vols. (Oxford, 1998, 2000). Murray, A. L., ‘Notes on the treasury administration’, in C. T. McInnes (ed.), Accounts of the Treasurer of Scotland: vol. XII, 1566 –1574 (Edinburgh, 1970). Murray, D., Early burgh organization in Scotland 2 vols. (Glasgow, 1924, 1932). Neville, C. J., ‘ ‘‘The bishop’s ministers’’: The ofﬁce of coroner in late medieval Durham’, Florilegium 18 (2001). Offer, A., ‘Between the gift and the market: The economy of regard’, EcHR 50 (1997). Ollivant, S., The court of the ofﬁcial in pre-reformation Scotland (Edinburgh, 1982). Osteen, M. (ed.), The question of the gift: Essays across disciplines (London, 2002). Outhwaite, R. B., The rise and fall of the English ecclesiastical courts, 1500–1860 (Cambridge, 2006). Patterson, C., ‘Quo warranto and borough corporations in early Stuart England: Royal prerogative and local privileges in the central courts’, EHR 120 (2005). Peck, L. L. (ed.), The mental world of the Jacobean court (Cambridge, 1991). Court patronage and corruption in early Stuart England (London, 1993). Pitcairn, R., Criminal trials in Scotland, from A.D. MCCCLXXXVIII to A.D. MDCXXIV 3 vols. (Edinburgh, 1833). Pocock, J. G. A., ‘The limits and divisions of British history: In search of the unknown subject’, AHR 87 (1982). Pollock, F. and Maitland, F. W., The history of English law before the time of Edward I 2 vols. (London, 1968). Potter, H., An introduction to the history of equity and its courts (London, 1931). Prestwich, M. (ed.), Liberties and identities in the medieval British Isles (Woodbridge, 2008). Prior, L., The social organization of death: Medical discourse and social practices in Belfast (New York, 1989). Pryce, H. and Watts, J. (eds), Power and identity in the Middle Ages (Oxford, 2007). Radzinowicz, L., A history of English criminal law and its administration from 1750. Volume 1: The movement for reform (London, 1948). Reid K. and Zimmermann, R. (eds), A history of private law in Scotland. Volume 2: Obligations (Oxford, 2000). Riches, D. (ed.), The anthropology of violence (Oxford, 1986). Roodenburg, H. and Spierenburg, P. (eds), Social control in Europe: volume 1, 1500–1800 (Columbus, 2004).

386

Select Bibliography

Rose, D. M. (ed.), The revenue of the Scottish crown, 1681 (Edinburgh, 1897). Ross, A., ‘The burying of suicides in the Highlands’, Transactions of the Inverness Scientiﬁc and Field Club 3 (1887). Ross, W., Lectures on the history and practice of the law of Scotland, relative to conveyancing and legal diligence 2 vols. (Edinburgh, 1822). Sanderson, M., Mary Stewart’s people: Life in Mary Stewart’s Scotland (Edinburgh, 1987). Sch¨ar, M., Seelenn¨ote der Untertanen: Selbstmord, Melancholie, und Religion im alten Z¨urich, 1500–1800 (Z¨urich, 1985). Schnegg, A., ‘Justice et suicide sous l’ancien r´egime’, Mus´ee Neuchˆatelois (1982). Scott, J. C., Domination and the arts of resistance: Hidden transcripts (London, 1990). Seabourne, G. and Seabourne, A., ‘The law of suicide in medieval England’, JLH 21 (2000). Sharpe, J. A., Judicial punishment in England (London, 1990). Sheehan, A. V., Criminal procedure in Scotland and France (Edinburgh, 1975). Shepard, A. and Withington, P. (eds), Communities in early modern England (Manchester, 2000). Shoemaker, R.B., Prosecution and punishment: Petty crime and the law in London and rural Middlesex, c.1660–1725 (Cambridge, 1991). Signori, G., Trauer, Verzweiﬂung und Anfechtung: Selbstmord und Selbstmordversuche in sp¨atmittelalterlichen und fr¨uhneuzeitlichen Gesellschaften (T¨ubingen, 1994). Simpson, A. W.B., An introduction to the history of the land law (London, 1961). A history of the common law of contract: The rise of the action of assumpsit (Oxford, 1987). Slack, P., From reformation to improvement: Public welfare in early modern England (Oxford, 1999). Smith, A., The theory of moral sentiments eds D. D. Raphael and A. L. Macﬁe (Oxford, 1976). Lectures on jurisprudence eds by R. L. Meek, D. D. Raphael and P. G. Stein (Oxford, 1978). Smith, R. M., ‘ ‘‘Modernization’’ and the corporate medieval village community in England: some sceptical reﬂections’, in A. R. H. Baker and D. Gregory (eds), Explorations in historical geography: Interpretative essays (Cambridge, 1984). Snell, E. J., ‘Perceptions of violent crime in eighteenth-century England: A study of discourses of homicide, aggravated larceny and sexual assault in the eighteenth-century newspaper’, (University of Kent Ph.D., 2005). Spaeth, D., The church in an age of danger: Parsons and parishioners, 1660–1740 (Cambridge, 2000). Spierenburg, P., The spectacle of suffering: Executions and the evolution of repression: from a preindustrial metropolis to the European experience (Cambridge, 1984). Stein, P., ‘The inﬂuence of Roman law on the law of Scotland’, Juridical Review new series 8 (1963). Legal evolution: The story of an idea (Cambridge, 1980). Stephen, J. F., A history of the criminal law of England 3 vols. (London, 1883). Stevenson, S. J., ‘The rise of suicide verdicts in south-east England, 1530–1590: The legal process’, C&C 2 (1987). ‘Social and economic contributions to the pattern of ‘‘suicide’’ in south-east England, 1530–1590’, C&C 2 (1987).

Select Bibliography

387

Strahan, S. A. K., Suicide and insanity: A physiological and sociological study (London, 1893). Strange, J-M., ‘Only a pauper whom nobody owns: Reassessing the pauper grave, c.1880–1914’, P&P 178 (2003). Swanson, R. N., Church and society in late medieval England (Oxford, 1989). Sykes, J., Local records; or, historical register of remarkable events, which have occurred in Northumberland and Durham 2 vols. (Newcastle, 1833). Tittler, R., Architecture and power: The town hall and the English urban community, c.1500–1640 (Oxford, 1991). Townspeople and nation: English urban experiences, 1540–1640 (Stanford, 2001). Todd, M., The culture of Protestantism in early modern Scotland (London, 2002). T¨onnies, F., Community and Society (Gemeinschaft und Gesellschaft) translated and edited by C. P. Loomis (East Lansing, Michigan, 1957). Treiman, I., ‘Escaping the creditor in the Middle Ages’, Law Quarterly Review 43 (1927). Ullmann, W., Principles of government and politics in the Middle Ages (New York, 1966). Vandekerckhove, L., On punishment: The confrontation of suicide in Old-Europe (Leuven, 2002). Veall, D., The popular movement for law reform, 1640–1660 (Oxford, 1970). Verdery, K., The political lives of dead bodies: Reburial and postsocialist change (New York, 1999). Vinogradoff, P., ‘Reason and conscience in sixteenth century jurisprudence’, Law Quarterly Review 24 (1908). Outlines of historical jurisprudence 2 vols. (London, 1920–2). Van D¨ulmen, R., Theatre of horror: Crime and punishment in early modern Germany translated by E. Neu (Oxford, 1990). Von Gierke, O., Community in historical perspective ed. A. Black (Cambridge, 1990). Walker, D. M. (ed.), The institutions of the law of Scotland . . . by James, Viscount of Stair . . . 1693 (Edinburgh, 1981). Walker, G., Crime, gender and social order in early modern England (Cambridge, 2003). Walsham, A., Charitable hatred: Tolerance and intolerance in England, 1500–1700 (Manchester, 2006). Watt, J. R., Choosing death: Suicide and Calvinism in early modern Geneva (Kirksville, MD, 2001). (ed.), From sin to insanity: Suicide in early modern Europe (Ithaca, NY, 2004). Waugh, S. L., The lordship of England: Royal wardships and marriages in English society and politics, 1217–1327 (Princeton, 1988). Weaver, J. and Wright, D. (eds), A history of suicide in the modern Western world: International perspectives (Toronto, 2008). Weber, M., The theory of social and economic organization translated by A. R. Anderson and T. Parsons (London, 1947). Wheatly, C., A rational illustration of the Book of Common Prayer (London, 1720). Wiener, M., ‘The unloved state: Twentieth-century politics in the writing of nineteenthcentury history’, JBS 33 (1994). Williams, P., The council in the marches of Wales under Elizabeth I (Cardiff, 1958). Wilson, K., The sense of the people: Politics, culture and imperialism in England, 1715–1785 (Cambridge, 1995).

388

Select Bibliography

Winchester, A. J. L., The harvest of the hills: Rural life in northern England and the Scottish borders, 1400–1700 (Edinburgh, 2000). Withington, P., ‘Public discourse, corporate citizenship, and state formation in early modern England’, AHR 112 (2007). Woodcock, B. L., Medieval ecclesiastical courts in the diocese of Canterbury (London, 1952). Woolf, D. and Jones, N. L. (eds), Local identities in late medieval and early modern England (London, 2007). Wormald, J., ‘ ‘‘Princes’’ and the regions in the Scottish reformation’, in N. MacDougall (ed.), Church, politics and society: Scotland, 1408–1929 (Edinburgh, 1983). Lords and men in Scotland: Bonds of manrent, 1442–1603 (Edinburgh, 1985). Wunderli, R. M., London church courts and society on the eve of the Reformation (Cambridge, Mass., 1981). Zulager, R. R., ‘A study of the middle-rank administrators in the government of king James VI of Scotland, 1580–1603’, (University of Aberdeen Ph.D., 1991). Zutshi, P. N. R. (ed.), The letters of Frederic William Maitland, vol. 2 (London, 1995).

Index Aberdeen 88, 234–5 and n, 237, 246, 247, 248, 257, 301, 326, 350, 354 Aberdeenshire 76, 248 Aberystwyth 206 accidental death 156–60 accounting for forfeiture 44–6, 120–4, 156 afforcement, phrases of 41, 177 Alison, Archibald 247, 248 Alloa 299 almanacs 359–60 Almondbury 209 almoner, English and Welsh see Lord Almoner and individual almoners Scottish 31, 367 Alnwick 156–7, 202 amercement (ﬁne) 4, 96, 122–3 and n Anatomy Act (1832) 247 Andrewes, Lancelot 97, 114 and n, 120, 121, 147, 149, 268, 307 Anglicans, Anglicanism 118, 197, 210, 214, 221, 313–17, 348, 375–6 Antwerp 29 apology 4, 85–6 Aquinas, Thomas 36, 115, 120, 285, 307, 315 arbitration 58, 73 and n, 93, 107, 108, 116, 124–32, 146 Argyll, Duke of 75, 76, 77–8 Argyllshire 295 Aristotle 3, 36, 41, 109, 115, 120, 185, 339–40 Ashton-under-Lyne 197, 206–7, 224, 258 assault 274–5, 278, 280 assize court (England) 123, 134, 146, 181, 329 assumpsit, action of 104n, 106–7, 108, 109, 174 and n, 185 asylums, lunatic 275 assythement (compensation) 40 Atholl, earl of 72 Atkinson, John 290 attorney-general 149, 157 Augustine 36, 116, 285, 307 Ayr 235, 257 Ayrshire 79n, 241–3, 305 Ayscough, Francis 197–8, 270 Bacon, Francis 142, 318 Balfour, James 37, 42, 51 ballads 342, 359

Ballentine, William 303–4 Banffshire 248, 301–3, 353 bankruptcy (insolvency) 66–70, 99–100, 127–8, 130n, 131, 185, 255, 353 Bankton, Lord (Andrew McDouall) 66, 91 Barclay, Janet 241–3 Barnard Castle 155 Barnes, John 123 bastards, civil disabilities of 32–3 and n, 45–6, 69 Bayet, Albert 8, 10, 29, 362 Baxter, Richard 118 Beaufort, duchess of 169–70 Beccaria, marchese di 1, 266, 373 Belfast 13 Bell, William 37, 70 Bentham, Jeremy 28, 175n, 269 Berwick-upon-Tweed 139, 152, 180, 199–202, 257n, 260, 327, 331, 332, 334, 337, 339, 341 Beverley 153 bills of mortality 352 Bird, John 156 Birnie, William 213–14 Birrel, Robert 232, 237, 293 Bishop Auckland 144 bishops (English) 110, 114, 119, 121, 277 see also individual bishops and Lords Almoner Blackstone, William 102, 104, 159 and n, 174, 178, 193, 318 Blake, John 210, 253–4, 291 Bloch, Marc 366 bodies of the dead disposal of 79, 215–18, 229–30, 233, 234, 246–50, 278, 323, 364, 365, 373, 374, 375 in or by water 202, 206, 217–18 and n, 220–1, 231, 244, 248, 252, 254, 364, 370 dragging of 5, 27, 191, 225, 230–2, 234–5 and n, 238–9 and n, 240, 241, 244–5, 252, 253, 257, 261, 262, 267, 272, 352, 362, 363–4, 370, 373 as emitters of signs 5, 13–14, 27, 211, 223, 229–30, 244–5, 246, 253–4, 265, 270–1, 291, 301, 372 excommunicated 195, 198, 204, 207 and n, 209, 210, 218–19, 255

390

Index

bodies of the dead (cont.) exits for 191, 192, 206, 215–16, 241–2 exhumation of 86, 174, 190, 196 and n, 207, 219, 229, 241, 243 and n, 244, 255 gibbeting of 5, 27, 191, 192, 218n, 225, 230–2, 238–9 and n, 240, 249, 256 and n, 257, 262, 264, 272 property in 229, 244, 246, 248 and n, 254–5 ‘sighting’ of 233–4 staking of 5, 6, 23, 189–95, 201, 202, 205–6, 208, 211–12, 244, 252, 256, 257, 323, 362 trial of 28, 230–1, 237–8 and n, 246, 250 and n, 252 unbaptized 195, 198, 204, 216, 220 Book of Discipline 212–13 Book of Bounty 131 Book of Common Prayer 196, 197, 279, 315 Bordeaux 352 Bourdieu, Pierre 53–4, 298 Bourquelot, F´elix 285 Bracton (legal text) 176, 371 Brandby 167 branks (scold’s bridle) 258, 260, 370 breach of the peace, attempted suicide a 279–80 Bright, Timothy 313–14 Brinkelow, Henry 131, 132 Bristol 107, 330 British history 6, 19–22, 366–7, 369 Britton (legal text) 176 Broun, Patrick 80–1 Bruce, Robert 66, 307–8 bureaucracy 33, 55, 61, 90, 92, 110, 185, 186 burial, crossroads or highway 174, 190–5, 199, 202–3, 204, 205, 206, 208, 218, 252, 323–4 licences 207–9 normal 212–15 service 196–7 of suicides, see bodies, disposal of warrants 5, 193, 197, 199, 205, 209–10, 323 Burn, Richard 197, 254, 374 Burnet, Robert 41 Burton, Robert 314, 319, 373 Burton-upon-Trent 253 Bute, marquis of 156, 173–4 Calderwood, David 298 Calvin, John 213, 307 Calvinism 7, 20, 211–15, 288, 301–12 Cambuslang 311–12 Campbell, Mungo 37, 249–51, 263, 264–5

Carlisle 107, 154, 249, 327, 334, 337 Carmarthenshire 104 Cartmel 132 Castlemartin 210, 253 Castlereagh, earl of (marquis of Londonderry) 43, 331n, 337 Catholicism 195, 205, 216, 243, 301, 303–4, 307 ‘Celtic fringe’ 20–1, 370 centralization 33, 55, 61–2, 72–3, 181–2, 243, 364–5, 368–9 Chalmers, John 301–3 Chancery, court of 103, 105, 108, 109, 132, 133, 136, 371 chapels 79, 208, 216–17, 244–5 charity 15, 59, 60, 67, 111, 113–20, 135, 184, 186–8, 205, 264 distinguished from benevolence 114–15 Charles I 61, 178 Charles II 44 Cheshire 97, 213, 260, 337 Chester 143, 151–2, 253 Palatinate of 108 Cheyne, George 314 Cholmeley, Richard 167, 172 Christison, Robert 43 church courts (England) 70, 105, 106, 117, 123, 126–7, 128, 131, 136, 179, 186, 203, 259, 277–9, 365 Church of England, see Anglicans, Anglicanism Church of Scotland, see Kirk churchwardens 199, 200, 202, 207, 210, 279 accounts 19, 200 and n, 258 churchyards 86, 189, 196–8, 202, 205–10, 213, 216–17, 220, 221, 224, 241, 242, 278, 373 Civil War and Interregnum 96, 107, 132, 163, 177, 313 civilizing process 12, 21, 228, 262, 266, 371–2 classics and classical culture 7, 322, 341–5, 357 clergy and burial of suicides 196–9, 201, 205–10, 223, 245, 375 and normal burial 213–14 and pastoral care of the suicidal 6, 301, 308, 310–12, 324, 376 Clerk, John 54, 91 Clitheroe 258 clothes 66, 201, 202, 333, 354 Cockburn, John 315–16 Cockermouth 158, 160 cofﬁns 79, 216, 217, 235, 245, 261 Coke, Edward 249–50, 254 Collinson, G. D. 177 Colonsay 217

Index Commissary Courts 61, 69, 70 commissions 102, 119, 128, 130–1, 133, 136, 145, 187 Common Pleas, court of 103, 105–6, 107 community 2, 3, 4, 34, 60, 66, 93, 97–8, 111, 112, 117, 120, 147, 148, 151, 152, 153, 175, 179, 183, 185, 188, 207, 215, 218–22, 223–4, 226–8, 243, 262, 264, 269, 270, 275, 276, 278, 287, 324, 332, 333, 358, 366 composition for forfeited goods 32, 33, 44–53, 57, 62–3, 64, 89, 96, 119, 120–4, 126, 137 conscience 108, 109–10, 114–15, 136, 150, 324 constables’ accounts 19, 252, 258, 260 constabulary 140, 157, 180, 276, 280 conversion narratives 308–12 Cornwall 257 coroners (England) 16, 18, 43, 97, 100, 101, 123, 140, 146, 147, 163, 173–5, 182, 197–8, 201, 206, 210, 315, 329, 370, 374 franchisal or special 123–4, 154, 155 (Scotland) 17 coroners’ inquests 6, 13, 16–19, 23, 24, 33, 34, 38, 42, 50n, 76, 95, 96, 126, 134, 138–9, 144, 149, 155–60, 163, 164, 175–81, 201, 256, 271, 288–90, 292, 316, 323, 327, 332, 333, 337, 341, 349 corruption 138–9, 152–4, 174, 197, 232, 315 counsel, legal 19, 78, 101, 133, 143, 146, 157, 158, 174–5 in criminal trials 181 Court of Session 37, 38, 39, 41, 52, 61, 76, 79, 80, 82, 108, 221, 231 courts, see individual courts Covenanting 65, 87 Cox, Richard 141–2 Craig, Thomas 38–41 Crail 44–5 Crieff 216 Crown Ofﬁce (Scotland) 18, 42 and n, 76n, 351, 356, 371 Cumberland 97, 122 and n, 136, 139, 140, 146, 163, 165, 166–7, 168–9, 204, 279, 288, 290, 326, 332, 333, 334, 337, 347–8 Cunningham 238, 241 Dalton, Michael 104, 120, 191, 192, 261 debt and credit 2, 44–94, 95–188, 229, 254 and n, 296, 298, 306 debts on specialty 69, 100, 103–5, 127 defamation 224 and n, 273, 277 and n, 278

391

deference 168–9 deism 250, 251, 287 delegation 124–32, 141, 152 Denmark 363 deodands 30 and n, 114, 120 and n, 121, 123, 132, 137, 138, 141, 155–60, 166, 177, 183, 367 Derbyshire 203, 208 desuetude 70 and n Devil (Satan) 6, 20 and n, 21, 65, 209, 287, 288–300, 301, 302–3, 304, 305, 306, 307–9, 310, 311–12, 317, 320–1, 324 Dewar, Sibilla 57 Dickens, Charles 194 diligence (writ of execution) 52, 66–7, 69, 70, 91 and n dissection 6, 212, 225, 246, 248–50, 250n, 256, 264, 266 Dobbie, Thomas 38–9, 40–1, 46, 58n, 63, 230–2, 237 Donne, John 319, 372 Douglas 320–1 Douglas, Jack 11, 13, 16, 353–4 dreams 295–6 Dreghorn (Ayrs.) 241–3 Dublin 335n, 336, 337n, 341 duelling 66, 337 Dundonald 272, 273 Dundee 354 Dunfermline 76, 222, 235 Durham, bishop of 123–4, 145 and n, 155 city 260, 334 Co. 123, 155, 161, 162, 214, 259, 334 Palatinate of 96, 108 Durkheim, Emile 7, 8, 23n, 73, 270, 351 ecclesiastical visitations 210, 278 Edinburgh 40, 46, 48 and n, 51, 52, 55, 57, 61, 73, 74, 75, 217, 220, 221, 230–4, 236, 237, 238, 239, 247, 248, 250, 251 and n, 257, 262, 272, 276, 306, 326, 348, 350, 352, 353, 354, 371 university of 36, 37, 43 education 66 Edward VI 117, 141 Eglinton, earls of 241–3, 249 Egremont 157 Elgin 273 Elizabeth I 101, 105, 106, 114, 121, 129, 134, 172, 178 Ellesmere, Lord Chancellor 107, 109 Engels, Friedrich 152 Enlightenment 1, 10, 12, 91, 93, 228, 270, 285, 313–23, 329, 343, 345, 346, 347, 348, 356 Episcopalianism (Scottish) 216, 221, 303, 304

392

Index

Erskine, John, of Carnock 37, 42, 78, 92, 216, 265, 272 escheat, different understandings of in England and Scotland 30, 100 and n, 131 see also punishments, forfeiture donations of 19, 30–3, 35, 44–91, 219, 232, 237–8 declarators of 37 and n, 39, 74, 76, 97, 82 secondary donation of 57–8 escheators 101n, 122 and n, 136 and n, 137 Essex 254, 259 ethics 10, 15, 105, 109, 111, 151, 187–8, 271, 308, 314–15, 320, 322, 324, 357, 375–6 euthanasia 318, 375 Exchequer, Chester 108, 143 English 101 and n, 104, 106, 115, 122, 130, 132, 133, 136 Scottish 32, 36, 41, 44, 45, 49, 54, 55, 58, 60, 62, 63, 64, 65, 69, 76, 79, 89, 91, 92, 122, 303, 367 executors and administrators post mortem 61, 69, 70, 81, 97, 101, 102–3 and n, 104 and n, 106, 107, 110, 112, 126, 128, 143, 150–1, 152, 161, 171, 174, 255 Fabianism 9–10, 269, 270, 286 fairies 294–5, 300 Falconer, John 44 Fary, William 219–20 Fedden, Henry Romilly 8–10, 17, 286 feodaries 136 and n, 137 Ferguson, Adam 93 feudal revenues, Scotland 30–1, 44–9, 63–4, 65, 91 England 65, 120–4, 131–2 feuding 64–5, 71, 73–4, 94, 142, 229–30, 236, 242, 243, 264 ﬁdei laesio, action of 105, 107 Fife 52, 72, 300 Fineux, Chief Justice 102, 183 Fisher, Richard 353 Fleming, Daniel 146 Fletcher, George 166 Henry 166 Joseph 15 Richard 126–7 Fockart, Janet 46, 62 folklore and folklorists 193–4, 205, 206, 211–12, 369 Fort Augustus 77–8 Foucault, Michel 11, 12, 14, 89, 92n, 183, 211, 223, 240, 263 and n, 269, 270–1, 325, 332, 340, 341, 359, 371 Fountainhall, John Lauder of 229, 293–4 Foxe, John 302

France 29, 50n, 238n, 239n, 349–50, 365, 369, 373 inﬂuence on suicide studies 6, 7–8, 10, 12, 285–6, 322, 362 franchisal jurisdictions 31, 72, 75–6, 77–8, 96, 102, 116n, 135, 141–6, 147–50, 156, 182 Fraser, Simon 77–8 fraud 44, 66, 68, 99–100, 109, 112, 135, 138–9, 155, 175, 186, 187, 255 Friendly Societies 375 Fulbecke, William 191, 192, 211, 261 gallows speeches 348 Galt, John 86, 241–3, 262, 263 Gateshead 123, 335, 343 Geertz, Clifford 15, 368 Gellner, Ernest 47 Geneva 24n, 29, 50n, 289, 312, 363 and n, 372n George III 332 Germany 3, 28–9, 65n, 85n, 189n, 201 and n, 205n, 216n, 269, 299, 351, 364, 365, 367, 370, 373–4 ghosts 47, 206, 216, 323 Gierke, Otto von 2–3, 5, 93, 264n, 366 gifts 35–6, 53–90, 154 Gilpin, William 163 Glamorgan 174, 173–5, 254 Glasgow 73, 75, 76 and n, 257, 326, 348, 350, 354, 371 Gledhill, Thomas 138–9 Glencairn, earls of 241–3 Gloucester 115 Godolphin, John 101 Goffman, Erving 86 ‘good’ and ‘bad’ death 34, 89, 183, 224, 302 Gordon, Robert 243–5 Grant, James 77–8 gratitude 28, 56, 59, 117, 139, 188 grave robbing 212, 246, 247, 255 Greystoke 204 Grosvenor, Richard 166–7 Haddington 23, 296 Halbwachs, Maurice 7, 73 Hale, Matthew 22, 132 Halifax 370 halmote court 124 Halyburton, Thomas 310–12 Hamlet 207, 321 Harrison, William 192, 259 Hawkins, William 315, 316 Heath, Nicholas 114n, 142 Henry VII 145 Henry VIII 116, 141, 145

Index Hereford 105 Herrick, Nicholas 125–30, 132, 140, 207–8 Hext, Edward 130 historiography 7–13, 285–8 Hobbes, Thomas 9, 184, 346 Hogg, James 194 Holinshed, Ralph 255, 256 Hollier, Henry 174–5 Houses of Correction 217, 220, 247, 279–80 Houston, John 64 Howie, Robert 88 Hume, David (jurist) 37–8 and n, 268 Hume, David (philosopher) 6–7, 93, 187, 318, 321, 322, 324, 345, 346n, 372 Hungary 28 Hunne, Richard 291 Hunter, William 346–7 Huntly, marquis of 301–2 Hutcheson, Francis 320 individualism 66, 93, 113, 180, 184, 188–9 indulgences 118, 208 informants 137n, 179 Inglis, James 56–6 insurance companies 186, 375 intestacy 51, 101n, 103 and n, 126, 128, 136, 151, 186 Inverness 257 investigating sudden death (Scotland) 17–19, 34, 36–42, 77, 249, 265, 293, 318, 349–50, 364–5 (England) see coroners’ inquests Ireland 3, 6, 16, 192, 277n, 363, 369, 370 Irvine 298 Italy 299 Ives, George 10, 27 Jacob, Giles 193, 194 Jacobites 75, 249 James VI and I 35, 37, 48 and n, 52, 56, 59, 61, 63, 64, 65, 72, 76, 90, 114, 134, 145, 236, 237, 243, 262 Jenkin, Thomas 173–5 Justices of the Peace 124n, 146, 200, 259, 279 Justiciary Courts 61, 181, 238, 245, 249 Kames, Lord (Henry Home) 270 Kant, Immanuel 322 Kello, John 308–9 Kendal 146, 214 Kerr, Robert of Ancrum 52–3 Kincardine (Ross and Cromarty) 243–5 King’s/Queen’s Bench, court of 100, 105, 106, 107, 111, 122, 133, 137, 138, 139, 144, 145–6, 150, 198

393

kinship 45, 65, 89, 103, 152, 168, 184, 186, 205, 219 Kirk (Church of Scotland) 92, 93–4, 300, 304, 311, 322 Kirk Sessions, attitudes towards suicide 216, 220–1, 272–4, 278, 307,365 Kirkcaldy 273 Kirkcudbright 253n Kirkoswald 140 Knox, John 65 Kondratiev, Nikolai 285 Lademan, Leonard 147–8 Lambarde, William 119 Lambie, Robert 80–1 Lanarkshire 76n, 349 Lancashire 23, 132, 135, 192, 205, 258, 289, 334 Lancaster, duchy of 152n Palatinate of 108, 146–7 Lasswade 273 law, canon 68, 109, 113, 115, 135, 196–9, 208, 219 and n, 255, 278, 367, 374, 376 changes in 67–70, 93–4, 100–13, 184, 261–6, 370–5 civil or Roman 109, 191–2, 196, 216, 228, 252, 254, 260–1, 317, 350, 364, 369, 370 common (English) 83, 104 and n, 105, 106, 108 and n, 109, 130 and n, 134, 161, 174, 176, 184, 191–2, 195–9, 227, 254, 255, 278, 288, 368 (Scottish) 61 ‘community’ 228, 264 creativity in 226–8, 237, 262–5 criminal 28–9, 37, 40, 61, 246, 255, 272, 280, 316, 317, 363n, 364, 373, 375 customary 5, 189, 191–2, 194, 227, 252 divine 292, 318 ecclesiastical 151, 196, 205, 255, 261, 278n equity 104n, 105, 108–9, 116, 118, 135, 174 and n, 184, 264 feudal 113 of hypothec 78 and n knowledge of 178, 261 natural 93, 222, 292, 316, 318, 320, 322 Scots 20, 36–44, 70, 75, 83, 216, 228, 240, 277, 300, 317–18, 356, 367, 370 ‘state’ 228, 264 statute 65, 68, 69–70, 73, 189, 191, 197–9, 211, 227, 228, 236, 238, 239, 265, 266, 279, 280, 374, 375 terms of art 288, 292, 293 texts 261, 317–18 Law, Robert 305 Lennox, duke of 82

394

Index

liability 180 strict 39–42 and n, 155–60, 177 Linlithgow 64, 80 litigation 73 and n, 117, 125, 130, 161, 171, 175 decline of 63–4, 179 increase in 63–4, 117–18 Liverpool 139, 186, 280 Locke, John 187 London 21, 94, 97, 108, 114, 125–9, 136, 151, 155, 186, 325, 328, 335 crime and punishment in 62, 192, 252, 255, 256, 257n, 259, 260 depiction of in provincial newspapers 336, 337, 351–2 Royal College of Physicians of 250n suicide in 125–9, 207–8, 290–1 Lord Advocate 46, 81–2 Lord Almoner 31, 95–146, 163, 288, 307, 367 deputy almoners 96, 136–7, 138 Lord Chancellor 109, 110, 130n, 133, 142, 183, 278 Lord Treasurer 31, 32, 33, 136 lordship 1–4, 34, 35, 112–13, 160–71, 171–5, 176–9, 185, 243, 278, 366, 367 Lothian, Robert Kerr, earl of 52–3, 298–9 Lothians 71, 72 love 15, 108, 111, 112, 113, 115, 186, 187, 188, 269, 275, 276, 279, 290 Lowther, James 164 John 163 Luther, Martin 297–8, 342, 346

mediation 93, 119, 124–32, 170 medical practitioners, involvement with suicides 9, 12, 17, 38–9, 40, 247, 248, 249, 313–14, 318, 375 melancholy 38–9, 139, 279, 290, 297, 305, 307, 313–14 Melvill, James 237 mercy 62, 89, 90, 118, 119, 134, 138, 164–5, 275, 276, 279 messengers-at-law 45, 63, 231–2 Miller, Samuel 323, 355 Mirus, John 160 Misson, Henry 255 money 29, 53–4, 59, 60, 89 Monimail 215–16 Montesquieu 16–17, 285 Montgomery 170–1 Moore, Charles 22–3, 29, 192, 193, 198, 314, 317, 323 Moray, regent 64 Morton, regent 48 More, Thomas 318 Morpeth 258, 344 Mortuaries Act (1529) 128 Munro, Alexander 36 murder 23, 24, 180, 236, 242, 249, 253n, 255, 256, 272, 277, 278, 291, 293, 294, 301, 308, 312, 316, 337 and suicide 217, 337 Murder Act (1752) 246, 248–9, 250, 256 Musselburgh 76 Myddle 204, 205

Mackenzie, George of Rosehaugh 36, 38, 39, 42, 75 and n, 91, 216, 238, 239n, 272 MacKintosh, James 193n, 265–6 MacLaurin, John 251, 320–1 Macclesﬁeld 260 Maine, Henry 5, 93, 113, 366, 369 Maitland, Frederic William 5, 22, 156, 162, 268, 271, 367–8, 369, 370 Makesoun, Henry 81–2 Man, Isle of 123, 131, 224, 252, 277–8, 334, 340 Manchester 214, 252, 257, 258, 260, 266–7, 370 manliness 321, 355–6, 365 manor courts 19, 107, 141, 142, 160–2, 163, 168, 177, 227, 258, 278 Marischal College (Aberdeen) 88 marriage 43–4, 339, 354–6 Marshall, William 182 Mary Queen of Scots 291, 293 Mather, Mary 152, 202 Mauss, Marcel 54, 60

Nantwich 257 negotiation 93, 119, 124–32, 164, 170 neighbours 34, 45, 66, 80, 111, 115, 136, 138–9, 174, 187, 205, 207, 263, 272, 275 Neilson, George 22, 369 Netherlands 42n, 235, 364 and n New England 87n New York 323 Newbattle 217 Newcastle 214, 257n, 259–60, 327, 331, 334, 335, 336, 339 newspapers, accounts of suicide in 2, 6, 7, 19, 202, 203, 247–8, 250–1, 276, 322, 325–61, 372 apologies in 359 political leanings of 327 readership of 326, 327–8, 341, 356 and n, 357 Nonconformity 214, 221, 305, 316, 317, 348, 353, 358 Norden, John 172

Index Northumberland, Co. 144, 162, 257n, 258, 280, 332, 348 duke of 157 earls of 104, 110, 134, 136n, 160, 163n, 164, 165, 168, 279, 291–2 Norway 374 Nottingham 210 novels 360 oaths 67 and n, 70, 104, 134 Old Bailey 259 opium 202, 355 Orfeur, Cuthbert 136 Ovid 343 pardons 46n, 55 and n, 62, 65, 85–6, 87, 88, 90, 132, 145 and n, 160n, 178, 185 Paris 337, 352, 373 parish registers 203–4, 209, 217, 289, 305 particularizing 279 passions 344, 354, 355, 356 paternalism 167, 170, 171, 172, 173, 183 patronage 48, 55–6, 59, 77–8, 112, 124, 156, 168, 172, 182, 183–4 Peeblesshire 72 Peirsoun, David 52, 81 pensions 56, 82, 152 Pepys, Samuel 97, 140, 255, 290–1 Perth 41, 73, 74, 75, 219–20 Perthshire 71, 72 petitions 164–5, 167–8 The philosophers opera 320–1 Piers, John 104 pillory 257, 258, 260 and n plague 224, 232 poinding (attachment) 68 Poland 192 Pollock, William 326 pollution 158–9 poor relief, English 96, 114, 115, 120, 121, 122, 131, 152, 170, 186, 367, 368–9 regional variations within England 368–9 Irish 369 Scottish 90, 367, 368–9 positional goods 34, 94, 156 and n, 201 poverty 55 and n, 74, 89, 110, 115, 116, 131, 335, 338, 339 Powell, Gabriel 170 Powis, earl of 170–1 Powry, John 41 precognitions 18, 77, 249, 265 prerogative, royal 22, 27, 28, 30, 91, 101–2, 108, 134n, 178, 183, 366 Prerogative Court of Canterbury 129, 186 Preston 279

395

Pringle, John 319–20 Robert 353 prisons 186, 233, 234, 249, 258, 280, 296, 297, 298, 326, 351 Privy Council (England) 208, 261 (Scotland) 52, 58, 64, 79, 82, 86, 230, 236, 239, 241, 242, 247 Privy Seal grant (England) 140, 144n probate (conﬁrmation) 51, 61, 69, 96–8, 103, 105, 115, 122, 126, 127, 128–9, 131 and n, 136, 137, 138, 151, 161, 186, 196 accounts 128 procurators-ﬁscal 18, 45, 61, 69, 76, 78 proof, legal standards of 36–44, 80–1, 88, 159–60, 180–1, 280, 289, 293–4, 296, 315–17 Providence 272, 291–2, 301 Pufendorf, Samuel von 320 punishments, capital 85, 181, 201, 203, 218, 221, 226, 230, 231, 235, 237, 241, 252, 255, 256 and n, 257 and n, 293, 363, 371 corporal or afﬂictive 1, 4–5, 6, 27, 65, 225, 226–67, 269, 363, 367, 373 creative period for 195, 226–8, 237, 240, 262–5, 363–4, 371 forfeiture (patrimonial) 1, 2, 4, 5, 27–9, chs 1 and 2, 189, 193, 202, 211, 231, 233, 238, 239n, 265, 269, 279, 367 gendering of 233 infra-, para-, quasi-, or extra-judicial 5, 189, 226–8, 239, 240, 241–2, 243–5, 251, 262–4, 265–7 penance 235, 253, 258, 259, 269, 272, 273, 274, 278, 279 regional variations in 5, 6, 192–3, 208, 228, 230, 251–60, 262, 362, 367, 370–1 shaming 6, 27, 223–4, 225, 229, 235–6, 257–60, 262, 263, 268–71, 273, 363, 365 token 194, 373 verbal 274 Puritans 20, 118, 119, 214, 259, 279, 307, 314, 319 Quakers 214, 221, 348 Quarry Holes 229–30 and n Quarter Sessions 123, 146, 167, 185, 200, 260, 280–1 quo warranto, writ of 145 quot (conﬁrmation fee) 46, 51, 61, 69 Radzinowicz, Leon 194 rebellion (legal process of outlawry) 31, 37 and n, 68, 81, 91–2 regalities 75–6, 77–8, 82

396

Index

Register of the Privy Seal of Scotland 31–3, 35, 77, 232 Register of Signatures 31–3, 35, 46, 77, 232 Reid, Thomas 320 Reidpath, Robert 39–40 religion and socio-economic life 166–8 and legal change 41, 65–6, 68, 70, 93–4, 132, 266, 288 remissions 46, 49, 55, 65, 86–7 and n, 88 Renfrewshire 64 repledging 75–6 Requests, Court of 108, 116, 133 revenge 269, 270 Richardson, M. A. 205 Richmond 141, 142, 147–8, 155 rough music 262, 263 Romilly, Samuel 9 Ross, Walter 91 Rousseau, Jean-Jacques 322 Russia 42n Rutherford, Mistress 309–10 St Andrews, regality of 82 and n university of 304 St German, Christopher 109, 182 Sales, Jean de 373 Salford 258 Saussure, C´esar de 192, 256, 268, 342 Scott, Walter 194 secrecy 42, 80, 85, 135–6 Seneca 53, 285 sermons 7, 27, 189–90, 213–14, 306, 307, 310–12, 313–17, 317–18, 322–3, 374 servants, royal 35, 45–8, 55–9, 80–2, 139 service 3, 28, 36, 47, 48, 53–63, 89, 153, 168 Shefﬁeld 257 Sheppard, William 107, 132 Sheriffs, English 101, 123, 144 Scottish 17, 18, 30–1, 74, 77, 82 Sheriff Courts 70, 76 sin 66, 116–17, 118, 119, 273, 277, 305, 310–11, 314, 348 Smith, Adam 30n, 42n, 93, 222, 321, 345, 346n, 356 social science methodologies 5, 11, 13–16 soldiers 77–8, 348, 351 and n, 355 Somerset 130 duke of 97, 165 Southampton 152n Spain 28 Sparke, Thomas 14 Spenser, Edmund 318–19 Spinoza, Baruch 319 Staffordshire 253 Standsﬁeld, James 297, 319

Stair, Viscount of (James Dalrymple) 38, 75n, 91, 100n, 272, 275 Star Chamber, court of 96, 99, 102, 103, 108, 110, 111, 116, 124, 133–35, 136, 137, 138–9, 140, 141, 146, 147–8, 150, 182, 183, 227, 288 Statistical Account of Scotland 352–3 Steele, Richard 352 Stephen, J. F. 194, 270 stewards, estate 78–9, 124, 149, 155, 156, 160, 165–6, 170, 171n, 174–5 Stirling 18, 55, 56, 235, 243, 273–4, 297 Stoicism 285, 319–20, 321, 344 Suffolk 195 suicide, age and 312, 351, 355 assisting 23, 276, 375 attempted 6, 271–81, 299–300, 303–4, 307, 349–50, 354, 376 causes of 7, 81 and n, 288–300, 305, 307, 338, 341 chronology of 63–70, 329–30, 350 concealment of 129, 135–40, 174 as a crime 1, 20, 37, 61, 88, 184 criminal 28, 194, 202, 233, 234, 240, 246–51, 326, 336, 348, 351 deﬁnition of 23–4 denial of 79–83, 104, 112, 353 gendering of 50 and n, 337–8, 341–7, 350 geography of 71–6, 270, 331–41, 350, 351, 354 see also towns historiography of 7–13 joint 49, 144, 157, 167, 202, 342–3 and madness 17, 36–44, 175–80, 313–15, 316–17, 324, 347, 356, 359 marital status of 50, 334, 340, 354, 356 means of 83–4, 85, 331, 332, 349, 350, 365–6 medical understandings of 287, 288, 292, 313, 314, 316, 321, 346 notes 302, 347–8, 357 passive 23 and n and religion 288–300, 338, 358 secularization of 9, 12, 20, 113, 285–8, 312, 313, 357–8 social status of 49–50, 89, 128, 144, 331–41, 351 valuations of assets of suicides 39–40, 51–3, 78–9, 123, 126, 144–5, 176 summary justice 184, 260, 264–5, 280 Sunderland 334, 338 Sussex 138, 253n Sutherland 243–5 Swinburne, Henry 100, 101 Switzerland 50n, 312, 358 Sym, John 319 sympathy 12, 325, 341–8, 361, 375

Index Taylor, Jeremy 118 Tenures, Statute of (1660) 131–2 testaments see wills Thirsk 196 Thompson, Edward 10, 262, 263, 371 tolbooths see prisons T¨onnies, Ferdinand 93, 287 torture 239, 261, 264 town treasurers’ accounts 19, 152, 154, 201–2, 230, 232, 235, 239, 262 towns 50, 73–4 and n, 75, 147–8, 150–55, 156, 220, 230, 235–6, 260, 334, 335–6, 351 see also individual towns Transportation Act (1718) 227, 256, 259 treason 192, 230, 232, 238, 253, 265 trespass on the case see assumpsit trespass, simple 108–9 trover 106 and n trust 2, 99, 102, 109, 111, 112, 184 Tweedie, James 72 Ullmann, Walter 3n Umfreville, Edward 192 Utilitarians 266 Vinogradoff, Paul 5, 113, 264 and n, 366, 369 violence 83–5, 108, 171, 275, 280, 312, 362–3, 365 Voltaire 285, 349–50 Wade, general 78 wager of law 105, 106 Wakeﬁeld 142 Wales 16, 20, 101n, 104, 125, 135, 141, 143, 145, 148–9, 151, 156 and n, 167, 169–71, 173–5, 206, 210, 253–4, 257, 261, 263, 291, 363, 370

397

Wards, Court of 131, 136 wardship 46n, 57n, 63, 64, 131, 140, 183–4 Watson, Anthony 104, 130 Wauchope, William 39–40 Webbe, Thomas 140 Weber, Max 92 and n, 93, 110–11, 188, 286 Weever, John 192, 255 Wentworth, Thomas 110 Westmorland 146, 162, 326, 334 Wheatly, Charles 197–8, 315 White, Francis 125 Whitehaven 163, 164, 327, 333, 334 wills (testaments) 51 and n, 69, 81, 97, 100, 105 and n, 126, 129, 174, 186, 278 Wills, Statute of (1540) 128 Wirral 145 witchcraft 44–5, 63, 64–5, 180, 222, 230, 234–5, 237, 243, 293, 297, 298–300, 307 Wodrow, Robert 304–5, 306, 309 Wolsey, Thomas 114 Worcestershire 253 Wyatt, Thomas 269 Wyndham, Thomas 157–8 Wynde, Thomas 147–8 York 145, 150–1, 153 Yorkshire 110, 136, 138–9, 141–2, 143 and n, 147–8, 150n, 162, 167–8, 172, 206, 290, 334 Young, Alexander 56, 81–2 Younghusband, John and Lancelot 144, 157, 202–3 Z¨urich 312 Zwingli, Ulrich 117