Robert Auchmutie – A surgeon beheaded for duelling

A trusted master

Robert Auchmutie's date of birth is sadly not recorded in the minute books of the Edinburgh Incorporation which he joined on 29 September 1591, yet the entry itself is otherwise very informative. Auchmutie was examined by the masters of the Incorporation according to the rights laid out in the Seal of Cause of its founding in 1505, which empowered them to regulate the practice and training of every barber and surgeon within the city walls. Auchmutie passed their examination, demonstrating his competence in the craft, paid his dues to the treasurer (reduced due to his wife being the daughter of a current member), and put up an additional £20 Scots to provide a banquet to the sitting masters. ¹ Over the next nine years, Auchmutie participated fully in the life of the organisation. He appears eight times in the minutes, administering the examinations of other new members; voting on changes in the organisation's laws and doctrines; and was twice entrusted with the key to the Incorporation's kist – the chest in which the organisation's most precious legal documents and valuables were kept. ² He also took an apprentice in 1595 named John Hepburn on a five-year contract, who would later fully live up to his end of the agreement by trying to save his master's life. ³

Auchmutie's last recorded entry in the institutional records of the Royal College of Surgeons of Edinburgh (RCSEd) appears on 18 September 1599, after which he does not appear again, not even in reference to his death the following year. Thankfully, the scandal of Auchmutie's crime and the legal circus which resulted from his subsequent trial meant that others were more than willing to record events, and these few details were also later featured in the organisation's quincentennial publication. ⁴

‘Injurious words’

The diary of Robert Birrel, a contemporary of Auchmutie's living in Edinburgh at the turn of the sixteenth and seventeenth centuries, is a valuable if often hyperbolic account of the goings on in the city and its surrounds over the course of several decades. Birrel recorded that:

The 20th of April, being the Sabbath day, Robert Auchmutie, barber, slew James Wauchope at the combat in St Leonard's Hill, and, upon the 23rd the said Robert was put in ward in the tolbooth of Edinburgh… ⁵

While he noted that the killing was ‘at the combat’, meaning that it took the form of a duel, his account is lacking a motive to explain it. Thankfully, the formal indictment issued to Auchmutie when he appeared in court for the first time was positively overflowing with detail and accusation. It accused Auchmutie of confessing ‘a deadly hatred and malice against James Wauchope’ and that he had arranged to fight ‘…with sword and gauntlet … the singular combat, for certain injurious words fallen between you and him’. While the injurious words themselves remain unrecorded, the nature of the subsequent encounter is made very clear. It contended that Auchmutie:

…with others your accomplices, came to the said appointed place, called St Leonard's Crags and there awaited upon the said James coming to you where, having kept the said tryst at the said hour and place, ye and your aforesaid accomplices set upon the said James and most shamefully and cruelly, with swords, struck him in the face and upon the head and gave him four bloody wounds thereon; and thereby most barbarously, cruelly and tyrannously slew the said James Wauchope, upon set purpose, provision and forthright felony, in high contemption ⁶

While the clear statement of the facts is to be expected in a criminal indictment for a suspected murder, the level of attached scorn and disapproval given voice to in the record goes much further. On two occasions, it makes reference to the fact that it was fought on the Sabbath, while also a short distance from Holyrood Palace ‘where his Majesty [King James VI] was in proper person for the tyme’. Furthermore, while the presence of others at a duel was by no means uncommon during this period – indeed, Robert Birrel tells of another duel at Barnbougle Castle in 1597 which was observed by a crowd as large as 5,000 – it implies a ‘shamefully’ and ‘tyrannously’ executed ambush with the aid of accomplices rather than merely a formal duel. The real question is why go to all this additional libellous effort? Why were they so determined to publicly damn Auchmutie in the eyes of a jury?

The duel by license

While the level of effort put into legitimising the case against Auchmutie required the lion's share of the words in the indictment, the most legally relevant fact received scarcely a mention. Robert Auchmutie had undertaken the duel with James Wauchope ‘without license of our Sovereign Lord’. The idea of a ‘license’ must not be understood as a document or even as a formal, material, item, but simply as ‘permission’. This permission, granted solely by the King in the seventeenth century, was the latest evolution of duelling in Scotland, and represented an attempt by the monarch to exercise some level of control over private violence enacted in place of, or as a part of, the justice system of his realm.

In his 1890 book Trial by Combat, George Neilson laid out his chronology of the practice. He believed that although the formal settlement of disputes by private violence could be seen in the interactions with raiding Scandinavians as far back as the tenth century, it was not until the Norman conquest, and the feudal system which followed it, that it became embedded into the culture of Britain. However, it was first and foremost an instrument of the landed nobility, summed up well by a passage from the reign of King David I (1124–1153):

…by the burgh laws, in the case where a rustic – that is a villein and unfree – had a burgh holding, if he accused a burgess of any crime inferring trial by battle, the burgess was not bound to fight ⁷

By the fourteenth century, concepts of chivalry were well-established, and it remained a common resolution for many of the feudal aristocracy's disagreements. The Regiam Majestatum, the legal code attributed to King Robert I (1306–1329), contains multiple titles under which trial by battle may be undertaken, such as in disputes over ‘widows’ dower’, ‘service between vassal and lord’, and disputes over oaths or financial debts. ⁸ The return of James I to the Scottish throne in 1424, after a childhood as a hostage in England, brought Scotland up to date in the practice of the duel. The ‘Order of Combats for Life in Scotland’ was published during his reign, and formalised the duel as it was then undertaken in England. This invested the monarch with the power to permit and stop duels in progress by requiring either his presence directly or the presence of his marshal or constable.

After 200 years, though, chivalry was nearing its end in Europe, and the duel began to be seen as a sinful and unreliable means of justice. ⁹ However, the concept did not die, it merely evolved into what, according to Neilson, was ‘a swifter, far less formal thing than the old treason duel of chivalry’ ¹⁰ – the private duel. This proliferation of killing now spilled beyond the landed class, which meant that the monarch struggled to maintain influence over what had previously been entirely within royal control. To make matters worse, duelling was increasingly common in the borders, between England and Scotland, at a time when James VI was heir to the English throne and sought to preserve the promise of a future union. ¹¹ The duel-by-license was the monarch's best instrument, therefore, in both maintaining the king's peace and his ultimate judicial authority.

Examples of duels of this period growing beyond the nobility, both with royal assent and without, spring up across the latter half of the sixteenth century, demonstrating it was a common practice by the time of Robert Auchmutie. In 1548, following the siege of Yester Castle in East Lothian, a man of the garrison named Newton was singled out by the victors for punishment as he had paid insult to King Edward VI. Newton protested his innocence and blamed another man for the insult, named Hamilton. Hamilton then called Newton out to settle it by combat. In the market square in Haddington, the two men fought a duel in the old style, with oaths taken and a primitive barras, or enclosure, erected exactly as in the prior chivalric tradition. Neither duellist on this occasion seems to have been a nobleman, and it was undertaken entirely without royal license or presence, ending with Hamilton's death, and Newton was awarded a ‘chain of gold’ by Lord Grey. In 1595, John Brown fought a combat against George Hepburne, with the King's license, and won, sparing Hepburne's life. The aforementioned duel in 1597 at Barnbougle Castle between Adam Bruntfield and James Carmichael proceeded when Bruntsfield ‘purchased a license of his majesty’ and ended with Carmichael's death. ¹² In all these instances, the men involved were freemen but not nobles, demonstrating how the practice of duelling had evolved beyond accusations of treason or feudal disagreements over money and land.

The King by this time was James VI, who possessed a distinct distaste for violence, which also fell upon duelling. In November 1580, James issued an ordinance that only challenges undertaken in resolving accusations of treason were permitted without the King's license. In his 1595 work ‘The True Law of free Monarchies’, he followed up on this, laying out his scorn for the practice as a whole, for presuming to claim a divine mandate:

As likewise by all good Writers, as well Theo-logues, as other, the Duels and singular combats are disallowed; which are only made upon pretence, that GOD will kith thereby the justice of the quarrel ¹³

However, it seems he felt that the people were not paying sufficient attention to their King's will as, on 1 April 1600, his council gave instruction that, as ‘non-execution of former acts and prohibitions had brought contempt and disregard upon them’, ¹⁴ the 1580 ordinance was to be reissued. All that was required was a good public example to show that the King meant business in enforcing it. It would drop at his feet a mere nineteen days later, thanks to Robert Auchmutie.

Ob Quietum publicam?

When Auchmutie appeared in court for the first time, his legal representatives, John Sharp and Alexander King, seem to have realised that they would have to play a very delicate game indeed to navigate the King's ordinances, and their first objective was to avoid, if possible, a trial by jury. Thanks to a useful coincidence, they believed they might have the perfect legal loophole to do just that. It transpired that James Wauchope, the man Auchmutie had killed, had in fact been made an outlaw in 1595 after he failed to appear before the King and his council when one of his relatives, Archibald Wauchope of Niddrie, was accused of treason. Sharp and King therefore argued that the duel between their client and Wauchope could be interpreted as either a duel fought over a treason charge, which was permitted by the King's 1580 ordinance, or simply in the interest of ‘public peace’. This concept, referenced in the legal sphere by the Latin ob quietum publicam, was also a defence with a very recent precedent to back it up. Barely three months earlier, in January of 1600, in the case of Guthrie v Jarden, the defendant had escaped a murder charge when he killed an outlaw by just such an argument. Although Auchmutie had seemingly been unaware of Wauchope's status prior to killing him, his lawyers argued that this status alone made the killing lawful and rendered a trial unnecessary. ¹⁵

The prosecution meanwhile, was led by James Wauchope's father, George Wauchope, and they presented a twofold rebuttal of Sharp and King's defences to the assembled justices. They argued that their son's status as a rebel was improper and was being consequently misused by Auchmutie's defence. They presented the record of their son's ‘Letter of Horning’, the document by which he was formally outlawed, and pointed out that it had been improperly levied by the absence of the required wax seal. This seal was meant to have been affixed and initialled by the clerk who filed it, but this had not been done. They further argued that the case cited by the defence, Guthrie v Jarden, did not apply to the present case as the murdered outlaw in that case had been charged with a capital crime to earn his ‘horning’, whereas their son had not. To Sharp and King's dismay, their legal technicality had itself been outdone by a legal technicality. The justices accepted the prosecution's argument, and Wauchope's status as a rebel was revoked. They decided that:

… No respect ought to be had in this case to the said allegiances, because the deceased was never a rebel by virtue of the Horning produced, because it is expressly stated by an Act of Parliament, that all charges and executions of Letters of Horning shall be stamped with the messenger executor's stamp, bearing the first letters of his name and surname… ¹⁶

However, there was no immediate agreement on what was to be done with Auchmutie, and the proceedings dragged on for two weeks while the justices debated statutes entirely in Latin and attempted to make them fit the case. George Wauchope clearly grew impatient, and when he appeared in court again on 10 June, he played a trump card; he had appealed directly to James VI to break the legal deadlock and presented the response from the King:

…Justice Clark and your Deputies, we greet ye well. Forasmuch as Robert Auchmutie, chirurgeane, is presently in ward for the slaughter of James Wauchop [sic], the parents of the said James have lamentably suited at our hands for justice, which We of our Royal duty cannot refuse. It is our Will therefore, and We command ye, that ye, with all convenient diligence after the sight hereof, ye proceed and minister justice upon the said Robert… ¹⁷

Wauchope had handed James VI the perfect case by which he might once again remind the people of Scotland of his ultimate authority in matters of duelling. In Neilson's words, his actions constituted no less than an ‘aggravated contempt of the Privy Council’. ¹⁸ Auchmutie was not a noble who might be possessed of political power significant enough to challenge the ruling or the King's authority; he was a freeman transgressing onto rights traditionally held by nobility, and he had directly disobeyed the King's authority and ordinances. With the charge of rebel now removed from Wauchope, James clearly wanted the proverbial book to be thrown at Auchmutie, to make an example of him. In a sideways attack at Sharp and King, James VI also made mention of the delays caused by ‘frivolous subterfuges’ delaying the course of justice. ¹⁹ With his counsel suitably chastised, Auchmutie seems to have bowed to the inevitable and acceded to a trial by jury. It was rapidly assembled and found him guilty of the slaughter of Wauchope, and he was sentenced to death by beheading and the confiscation of all his movable goods. ²⁰ To his credit, Auchmutie used his brief time in court to clear the names of those who had been suspected as his ‘accomplices’. The record named them as James Chalmers and John Auchmutie – presumably a close relative.

The great escape (attempt) and legal legacy

Robert Auchmutie was returned to imprisonment in the Tolbooth following his guilty verdict, to be held there until the day of his execution. However, he had no intention of staying there. As mentioned previously, he had taken an apprentice in 1595 named John Hepburn, and through this young man, he attempted one last time to cheat the executioner.

Robert Birrel recorded their effort in his diary, describing how Auchmutie claimed illness and hung coverings both inside and outside his window in the tolbooth ‘saying that he was sick, and might not see the light’. ⁵ With these installed, Hepburn smuggled aquafortis, or nitric acid, to his master; with which Auchmutie slowly dissolved the iron bars. This accomplished, Auchmutie arranged for Hepburn to stand in the street outside ‘upon a morning’ and give a signal with his handkerchief when the guard was changed. Hepburn complied, and Auchmutie ‘hung out a line’ to escape the cell, but, unfortunately for him, Hepburn's signal had been spotted, and the guards were alerted to his escape.

Recaptured, he was returned to confinement and taken a short distance to the Tollcross on 20 June to meet his end. The ‘Maiden’, an early design of guillotine, had replaced the city's last beheading sword in 1565, and Auchmutie was recorded as the 26th person to be executed by it. It would execute at least 150 people before it was retired in 1710 ²¹ and is preserved to this day in the National Museum of Scotland, a chilling relic detached from its original dispassionate purpose.

King James had made his example and, a mere five months later, on 15th November, an Act was passed which stated that the Scots Parliament:

…considering the great Libertie that sundry persons take in provoking others to singular combat upon sudden and frivolous quarrels, which engender great inconveniences within this realm, therefore statutes and ordains that no person in time coming without his Highness’ license fight any singular combat, under pain of death and his moveables confiscated to his Highness’ use, and the provoker to be punished with a more ignominious death nor the defender at the pleasure of his Majesty. ²²

The King had closed the treason loophole left in his 1580 ordinance at the same time as codifying Auchmutie's exact sentence into law. This was reinforced again in 1678 when the laws regarding capital crimes in Scotland were reviewed. The title on murder contained a subsection on duelling, which specifically named Robert Auchmutie as a case study in the application of this law ²³ ; whilst also reinforcing duels as ‘but illustrious and honourable murders’. ²⁴

That being said, it must be pointed out that Auchmutie's death did not put an end to the practice of the duel-by-license, regardless of the attitude of the King toward the practice or the parliament's connivance in restricting it. A mere three years later, in January 1603, only two months before the union of the crowns, King James VI was faced with the prospect of another well-publicised duel, but one which ultimately never took place. An Italian fencing master named Daniel Archidequila had informed Lord Cecil that Francis Mowbray, the Laird of Barnbougle, had confided in him his intention to murder the King. Mowbray protested his innocence and demanded trial by battle against the Italian. The duel was prepared and, for the last known occasion, a barras was erected in the great close of Holyrood Palace. However, while being held in Edinburgh Castle prior to the duel, Mowbray attempted to escape and died falling from the castle esplanade before it could be undertaken. As he had died under charge of treason, his body was drawn and quartered. ²⁵ The example made of Robert Auchmutie was clearly not the definitive end to duelling that James might have hoped for.

Conclusion

The case of Robert Auchmutie remains the only known instance where a member of the Royal College of Surgeons of Edinburgh was executed in its five-hundred-year history. His killing of Wauchope and subsequent execution form an integral part of the history of duelling in Scotland, by helping to demonstrate its surge in popularity during the sixteenth century outside the noble classes, and the some what desperate attempts of the King and higher authorities to exercise control over the practice. The significance of the case as a legal precedent used to shape Scottish law is also apparent from its subsequent use in legal titles and, furthermore, it provides colour to notions of royal absolutism in early modern Britain, by showing the actions of James VI in pursuit of his divine right to be the ultimate judicial authority in his realm. ¹³ Trial by combat was finally removed as a legal defence by an Act of Parliament on 22 June 1819. Auchmutie's role in that long and storied history may have been brief, but it is nonetheless worthy of recognition – as a prominent signpost on the road from a feudal to a modern society, in which the benefits of a modern justice system permit the settlement of disputes between citizens without the use of a duelling enclosure.