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THE COURT OF THE COMMISSARIES OF EDINBURGH: CONSISTORIAL LAW AND LITIGATION, 1559 – 1576 Based on the Surviving Records of the Commissaries of Edinburgh BY THOMAS GREEN B.A., M.Th. I hereby declare that I have composed this thesis, that the work it contains is my own and that this work has not been submitted for any other degree or professional qualification, PhD Thesis, University of Edinburgh, 2010 Thy sons, Edina, social, kind, With open arms the stranger hail; Their views enlarg’d, their lib’ral mind, Above the narrow rural vale; Attentive still to sorrow’s wail, Or modest merit’s silent claim: And never may their sources fail! And never envy blot their name! ROBERT BURNS ii ABSTRACT This thesis examines the appointment of the Commissaries of Edinburgh, the court over which they presided, and their consistorial jurisdiction during the era of the Scottish Reformation. It is argued that the Commissaries of Edinburgh were appointed by Mary, Queen of Scots, in February 1563/4 as a temporary measure following the suppression of the courts of the Catholic Church in Scotland during the Wars of the Congregation. The Commissaries’ jurisdiction was substantially that of the pre-Reformation Officials centralized into a national jurisdiction administered from Edinburgh. The Commissaries of Edinburgh’s jurisdictional relations with the inferior Commissaries, the Lords of Council and Session, the suppressed courts of the Catholic Church and the Lords Interpreters of the Law of Oblivion are examined, whilst their relations with the tribunals of the Protestant Kirk are given particular attention. The thesis argues that despite the complex constitutional, legal and religious legacy of the spiritual jurisdiction in Scotland, the Commissaries and Kirk achieved a high degree of jurisdictional harmony, despite occasional conflicts. The Commissaries continued to administer the Canon law of the medieval Church in consistorial matters, with the prominent exception of the innovation introduced into Scotland by the Protestant Kirk from 1559 concerning divorce and remarriage on the grounds of adultery. Through an analysis of sentences and decreets pronounced by pre-Reformation Officials, the Commissaries of Edinburgh, and the tribunals of the Protestant Kirk, it is argued that this reform was essentially a reform of divorce a mensa et thoro using concepts and formulas borrowed from pre- Reformation sentences of annulment. The result was a type of divorce unique to Scotland, where the innocent party was immediately freed to remarry, whilst the guilty party remained bound to the failed marriage until freed to remarry by the death of their innocent spouse. An analysis of consistorial litigation before the Commissaries of Edinburgh is used to explain and illustrate the Romano-canonical procedure used in their court and the documentation generated during litigation. Litigants’ gender, domicile and social status are also analysed, together with their use of procurators and the expenses incurred during litigation. iii ACKNOWLEDGEMENTS Since I first began to make the long and occasionally arduous journey from history through historical theology and ecclesiastical history into the realm of Scottish legal history I have accrued a number of debts which I am pleased to acknowledge. In the dim and distant days of undergraduate study I was fortunate to have the privilege of being taught and encouraged by Michael Mullet, Marcus Merriman and Joseph Shennan of the History Department of Lancaster University, under whose guidance I developed interests in Reformation studies and constitutional theory. Upon my arrival at Edinburgh’s School of Divinity, despite having been warned by Marcus in his characteristic manner that “New College is a bit cliquey and ingrown and is in some respects too theological even for one of your ecclesiastical bent”1 (!) I had the good fortune to come under the influence of Jane Dawson, who opened up before me the world of Reformation Scotland. A study of pre-Reformation courts spiritual ensued, to be followed by casual mentions from Jane that the topic of the Commissaries of Edinburgh was much neglected and that the Stair Society could well be interested in funding doctoral research into the Commissaries’ early history. The effect of the involvement of the Stair Society and its members upon my research has been considerable. As a young post-graduate embarking upon a study of the “ecclesiastical history of the law”2 in sixteenth-century Scotland, I felt keenly the lack of knowledge of the law I brought to the table. In this, John Cairns’s generous offer to join Jane Dawson in the task of supervision has proved a great boon, and I am most grateful for his myriad explanations and patient corrections of many of the errors I have made. The goodwill of the Society also manifested itself in my unexpected inclusion in the learned company and conversations of many persons who would ordinarily have been out of reach. In this respect I am grateful to Peter McNeill, Athol Murray, Hector MacQueen, Mark Godfrey, David Sellar, Olivia Robinson, Winifred Coutts, Bill Gordon and Gero Dolezalek. Above all I am indebted to David Smith, by whose magnanimity my own endeavours have flourished. 1 E-mail, 23 March 2004. 2 Lord Clyde’s phrase used in Thomas H Drysdale’s ‘The Stair Society: The Early Years’ in Miscellany V (Edinburgh: The Stair Society, 2006), 247. Thanks are due to Tom Drysdale, who, in his capacity as treasurer and secretary of the Stair Society, has been rather like my very own Mr. Jaggers. iv I am also grateful to the members of the Scottish Legal History Group and the Scottish Medievalists, many of whom have already been mentioned, but in addition thanks are due to Julian Goodare, Jenny Wormald, Andrew Simpson, Alan MacDonald, Amy Blakeway and Cathryn Spence. I also thank Alan Hood (Latin), Paul and Sara Parvis (medieval Latin reading group) and Kirsty Stewart (Scottish Handwriting, NAS). Among the many helpful members of staff at the NAS, I owe particular thanks to Pete Wadley for a level of assistance above and beyond the call of duty. I also thank a couple of regular readers in the Historical Search Room, John Harrison and Bob Fenwick for various conversations and some remarkably useful tips. In my private life I thank my mother for supporting my undergraduate studies at Lancaster. I also thank my landlord, who has been remarkably easy going this many-a-year. Finally I thank my wife, who has supported me over many years in more ways than I care to remember, and to whom, with the greatest respect, I dedicate this thesis. Thomas Green, at Crookston, the Feast of St John Ogilvie, 2010. I must also express my gratitude to Michael Lynch and Andrew Lewis for examining the thesis and for their various criticisms and suggestions. In particular, much helpful advice was received and incorporated into the thesis concerning the religious affiliations and actions of many of the minor personnel of the Court of the Commissaries both during Mary’s personal reign and during the civil war. Thomas Green, at Crookston, 19 October, 2010. v THE COURT OF THE COMMISSARIES OF EDINBURGH: CONSISTORIAL LAW AND LITIGATION 1559 – 1576 TABLE OF CONTENTS Page No. THESIS INTRODUCTION 1 [i] Historiography and Scope of Thesis 1 [ii] Methodology 4 [iii] Conventions 5 CHAPTER I CONSTITUTIONAL THEORY 7 §I Historiography 7 §II Historical Context and New Understandings 11 §III Constitutional Theories arising from Historical Context 17 §IV Themes of Episcopacy 30 CHAPTER II THE COURT OF THE COMMISSARIES OF EDINBURGH 37 §I Introduction 37 §II Sitting in Judgement 42 [i] The Judges 42 [ii] The Procurator Fiscal 45 [iii] The Collector of Quots 47 [iv] The Clerks of Court 50 [v] Officers and Messengers 52 [vi] Procurators 54 [vii] The Court and Civil War, 1571-1572 56 §III The Inferior Commissaries 59 [i] Judges and Seats of Judgement 59 [ii] Jurisdiction of the Inferior Commissaries 63 vi §IV Relations with Other Courts and Tribunals 66 [i] Pre-Reformation Courts Spiritual 66 [ii] The Lords of Council and Session 73 [iii] The Lords Interpreters of the Law of Oblivion 76 §V Relations with the Tribunals of the Kirk, 1559-1563/4 80 CHAPTER III SCOTS CONSISTORIAL LAW 89 §I Regular, Irregular and Clandestine Marriage 91 [i] Regular Marriage 91 [ii] Irregular and Clandestine Marriage 96 [a] Sponsalia per verba de futuro 99 [b] Sponsalia de futuro cum copula subsequente 100 [c] Sponsalia per verba de praesenti 101 §II Scottish Protestant Divorce for Adultery 103 [i] Methodology 108 [ii] Pre-Reformation divorce a vinculo 110 [iii] Introduction of new divorce by Kirk 114 [iv] Analysis of the Kirk’s sentences of divorce 116 [v] Analysis