At Edinburgh, on the twelfth day of April 1567, James Hepburn, Earl of Bothwell, appeared in person before the court of justice assembled in the Tolbooth. The bill of indictment left no doubt as to the gravity of the crime laid to his charge: the murder of the King, Henry, Lord Darnley, consort to Mary Stuart. On the night of 9 February, so the indictment ran, a great quantity of gunpowder had been laid and ignited beneath the lodging where the Prince was resting, near Kirk o' Field; the blast had cast the building into the air and killed its occupant. That date was the one set forth in the formal charge; the explosion itself occurred in the early hours of 10 February.
Bothwell retained two advocates, David Borthwick and Edmund Hay. A great nobleman stood accused of the slaying of a king, yet the first question raised turned neither upon the powder nor upon the hour of the deed; it turned upon the right to judge.
Henry Kinloch came forward on behalf of the Earl of Erroll, High Constable of Scotland. He maintained that the Constable held sole and exclusive jurisdiction to try men of such estate when the slaughter was committed near the Prince’s bedchamber. Were the Justice-General’s court to pursue the matter, he protested, it would encroach upon an ancient prerogative. The judge, having consulted his assessor, determined nevertheless to proceed with the cause: Kinloch had produced no instrument to support his exception. Bothwell demanded that an act of court be drawn. In a few moments, the parties had established the rule of the day: every reservation was to be recorded, every formal protestation preserved, even as the hearing went forward.
Another absence weighed far more heavily: that of Matthew Stewart, Earl of Lennox, Darnley’s father and pursuer in the cause. He had not entered the hall. Robert Cunningham, his servant, appeared in his stead, bearing a signed writing and a procuratory. He prayed that another day be granted to his master. The citation, he pleaded, had been far too brief; Lennox had been unable to gather his kin, friends, and retainers, whom he deemed necessary for his honour and bodily safety against so formidable an adversary. Should the court proceed to judgment that very day, he added, he protested against the entire conduct of the proceedings.
The text transmitted by Borrow preserves the sharpest edge of this protestation. Therein Lennox declared that if the judges acquitted the panels, they could not plead ignorance: in his eyes, the names of the slayers were notorious. He spoke not as a witness summoned to recount what he had seen in the house shattered by gunpowder; he spoke as an accusing father who dreaded lest an acquittal should forever bar the door against all further proof.
The court refused to adjourn. The judge took into consideration the letters of Lennox, the act of the Secret Council, the demands of the advocates, and Bothwell’s insistence that the whole matter be brought to trial without delay. He permitted Cunningham, however, to concur with the pursuit. The hearing thus moved forward between two irreconcilable demands: the haste decreed by the Queen and the Council, and the time and protection demanded by the dead man's father. Lennox would not appear to sustain his accusation in person; his protestation, nevertheless, remained entered upon the roll.
His letters to the Queen gave that absence a voice. In the first, dated from Houston on 26 February, Lennox thanked Mary for the intelligence received and urged her not to await the assembling of Parliament. The writings affixed to the doors of the Tolbooth, he reported, named certain persons as the authors of the murder. He prayed that they be apprehended, that the nobility be convened, and that the accused be put to their trial; should the charges prove false, they might be set at liberty. He called both for a swift inquiry and for a lawful proceeding capable of sifting the truth of what the placards asserted.
In a second letter, written on 17 March, his tone became more pressing. Lennox named those whom he affirmed he held in vehement suspicion: Bothwell, James and Gilbert Balfour, David Chambers, John Spence, Franciscus Bastian, John de Bordeaux, and Joseph, brother to David Rizzio. He besought the Queen to cause them to be apprehended and examined. He did not claim to have caught the conspirators together; he demanded that their persons be brought to inquiry.
Bothwell, meanwhile, sat present in the hall, flanked by his counsel and by peers who were presently to decide his fate. The court empannelled fifteen jurors, among whom were earls, lords, and landed men designated by their baronies. They were removed into another chamber to deliberate. Darnley’s father stood not before them; his servant, admitted to concur in the pursuit, represented his interest. The record contains neither the deposition of an eyewitness nor any material evidence debated during their seclusion. It relates, on the contrary, that the assize, having weighed the articles of the indictment, delivered a verdict cleansing Bothwell of the slaughter and of every art and part thereof.
The acquittal was pronounced. A second protestation, entered at the request of the chancellor of the assize, rendered the conclusion more absolute still: the pursuers and those assisting them were barred from producing thereafter any further writings or instruments to sustain the charge; none, said the act, had established the truth of the crime, nor any part of it. The judges protested, moreover, that their decree should not be imputed to them as an error of assize. Such was the language of the court itself, but it did nothing to dispel the suspicion.
The chronicle then attributes to Bothwell an act intended to answer the judgment of the streets. He caused a challenge to be affixed upon the market cross, declaring that he had been lawfully cleansed by the law, yet stood ready to defend his innocence by combat of his body against any man of honourable birth and unstained reputation who should accuse him of the murder. Another placard answered almost immediately. An unnamed gentleman accepted the gage, offering to prove by arms that Bothwell had been the chief author of the slaughter, and praying the King of France and the Queen of England to interpose so that a field might be appointed under their protection. The author of this answer is not named in the chapter.
To this defiance, the narrative records no answer from Bothwell. Lennox had sent his letters; Cunningham had lodged his protestation; the assize had acquitted the Earl. In the wynds, the libels continued to clamour for another verdict, rendered by the sword. In the following month, in May, Mary was to marry Bothwell. Darnley’s father had obtained a trial, but neither the delay nor the safe conduct he had demanded to sustain the accusation with his own voice.