Sir Herbert Maxwell of Caerlaverock

SIR HERBERT MAXWELL OF CAERLAVEROCK

Herbert....of Carlaverock, on the Solway Firth, which he held by 1300, when the celebrated Seige of it by the English took place; swore fealty to Edward I following the English victory over the Scots of Dunbar 27 April 1296; allegedly killed at the English victory over the Scots of Falkirk 22 July 1298. [Burke' Peerage]

Jim weber notes: "Burke's Peerage does not try to explain how a man 2 years dead holds a castle, but it may have been his son who held it in 1300 because Herbert died supposedly in 1298."

SIR HERBERT DE MAXWELL, son and heir according to a charter variously assigned by Sir William Fraser to, "in or before 1266" and "circa 1270." He sat in the Parliament at Scone, February 1283/4, which acknowledged the "Maid of Norway" as heiress presumptive of the Scottish crown, and attended the convention at Brigham, March 1289/90, which ratified the proposal for her marriage to Prince Edward of England. In the dispute for the crown which followed her death Maxwell acted as one of Baliol's commissioners, 1292. After Edward I's victory at Dunbar he swore fealty to the English King at Montrose, 10 July 1296, and again, 28 August, at Berwick. He was one of the Scottish magnates summoned to serve with Edward I in Flanders, 1297; and is said to have fallen at the battle of Falkirk, 1298. [Complete Peerage VIII:587, (transcribed by Dave Utzinger)]

Jim Weber posts the following about Caerlaverock Castle: "But the Scots soon began to rebel against Edward. In 1300 he invaded Galloway, one of the centres of resistance, and Caerlaverock was one of the prime targets for his wrath. The siege of Caerlaverock is one of the most well known incidents of this time because of a detailed written account by a member of the besieging army.

"Edward of England came with 87 knights and 3000 men. Siege engines were sent for from the castles of Lochmaben, Carlisle, Roxburgh, Jedburgh and Skinburness. The siege didn't last long and Lord Maxwellís garrison of 60 men soon surrendered. Some were hanged from the castle walls and the rest were allowed to walk free. The castle remained in English hands until 1312.

"The keeper of the castle was none other than Sir Eustace Maxwell, demonstrating the borderer's remarkable ability to make the most from both sides. In 1312 he declared for Robert Bruce, King of Scots. He was besieged in the castle but held out. Robert I granted him a charter of annual rent for demolishing the castle in line with Robert Bruces policy of destroying all stronghold that could be used by an invading force.

"The accession of David II to the Scottish throne in 1329 and the re-opening of hostilities between Scotland and England was a sign for Sir Eustace to change his allegiances once again. The Maxwells were loyal to the Balliols and not to the Bruces and when in 1332, Edward Balliol was crowned King of Scots at Scone Sir Eustace repaired and garrisoned Caerlaverock and placed it at Balliols disposal."

(note Eustace was eldest son of John & grandson of this Herbert)

During his father's lifetime, Herbert, under the designation of son and heir of Sir Aymer of Maxwell, obtained from William of Coninburcht a charter of one carucate of land in Brakanwra, to be held for rendering to the granter and his heirs, in name of feu-farm, twelve pennies for every secular service, exaction and demand. The charter is undated; but as it was granted in the lifetime of Sir Aymer of Maxwell, the father of Herbert, its date must have been in or before the year 1266.

For a number of years after he came into possession of the family inheritance Sir Herbert's name does not appear appear in contemporary memorials in connexion with any transaction, private or public.

He was the first of the house of Maxwell who acquired the lands of Pencaitland, in the constabulary of Haddington and county of Edinburgh. They became his property about ten years after his father's death. On the 18th of May, being the Monday following the Ascension, 1276, resignation was made by John of Pencaitland in favour of Herbert of Mackeswell, and his heirs, of the land of Pencaitland on the west side of the water of Tyne, with the patronage of the Church of Pencaitland, before Sir Hugh of Berkelay, Justiciar of Lothian, in full court, at the Castle of Edinburgh (Castrum puellarum). Of these lands William of Douglas, John of Lambertoun, and Richard of Birgirton, knights, had ascertained the extent for the King, with the exception of the copse of Suth, the copse that Sir Alan of Ormiston held of the resigner, and also the Ruthirkroc. Among the witnesses were John Cumyn, son, John of Lyndesay, Richard Fraser, John of Lamberton, Walter of Lyndesay, lord of Periston, knights, William of Lyndesay, Ralph of Eyclyn and others. To this resignation were appended the seals of the granter, of Sir Hugh of Berkelay, Jusiciar of Lothian, and Sir Symon Fraser; but they are no wanting.

About eight and a half years after, Herbert, under the designation of "dominus Herbert de Maxwel," was witness to an agreement between the Abbot and Convent of Paisley on the one side, and John of Aldhus, son of Roger of Aldhus, on the other. By this agreement, John of Aldhus, at Glasgow, on the Tuesday immediately before the Feast of St Nicholas, bishop, (December 5th) in the year 1284, in the presence of William of Soulys, then Justiciar of Lothian, and other magnates, in full court, renounced in favour of the Abbot and Convent of Paisley his whole right in the land of Aldhus; and the foresaid Abbot and Convent, with the consent of their chapter, granted in farm to the foresaid John that portion of land in the territory of Aldhus which Patrick, son of Neuyn, formerly held in farm of the monks of Paisley.

Herbert of Maxwell, like his father, acted a prominent part in the political transactions of the kingdom. In the reign of King Alexander the Third, and in the calamitous times which followed on the death of that monarch and on the death of his grand-daughter, Margaret of Norway, he appears as sharing constantly in the administration of public affairs.

He sat in a Parliament of the Estates of the kingdom, held at Scone, on the 5th of February 1283-4, consisting of thirteen earls, eleven bishops, and twenty-five barons, who bound themselves to acknowledge, maintain and defend Margaret, Princess of Norway (commonly called the Maiden of Norway), born of Alexander's daughter Margaret by her marriage with Eric, King of Norway, as heiress of the kingdom of Scotland, the Isle of Man, the Hebrides, Tynedale and Penrith, should King Alexander die without lawful children, male or female, of his own body, or should no child of the body of the deceased Prince Alexander be born by his widowed Princess. This Parliament was assembled within a week after the death of Prince Alexander, and when it was uncertain whether his Princess Margaret of Flanders, a daughter of Count Guy de Dampieere, to whom he had married on 12th November 1281, would have by him offspring. It was rendered necessary for the settlement of the succession to the Crown, as King Alexander the Third had become childless by a rapid series of domestic calamities. His youngest son, David, died, aged only ten years, in the year 1280; and his daughter Margaret, Queen of Norway, having also died, there remained only of his issue the infant Princess Margaret, the daughter of that queen. The King also was a widower, his queen, Margaret, having died in 1275.

Alexander the Third met with an accidental death. On the 16th of March 1285, the night being dark, he left Inverkeithing on horseback for Kinghorn. The road at some points passed dangerous cliffs overhanging the sea, and over one of these the King was thrown, and killed on the spot, owing to a false step made by his horse. He was succeeded by his granddaughter Margaret, Princess of Norway.

Herbert of Maxwell united with other prelates, nobles and barons in promoting the proposed marriage of Margaret with Henry, eldest son of Edward the First, King of England; a measure which promised greatly to contribute to the tranquillity and prosperity of the kingdoms, both of Scotland and England. As a member of the Estates of the kingdom of Scotland which met at Brigham, a village on the Tweed, in the county of Berwick, Herbert of Maxwell signed a letter, dated 17th March 1289-90, which was despatched by that Parliament to Edward the First of England, relating to that proposal. The letter expressed the joy of the Estates at the news in common circulation, that a Papal dispensation had been granted for the marriage of his son, Prince Edward, with Margaret Queen of Scotland, their dearest lady. It also desired that he would be pleased to sent them direct intelligence regarding a measure so closely connected with the well-being of both kingdoms. It further assured him of their cordial approval of the alliance, upon certain resonable conditions, for the settlemet of which they would send delegates to him, and to his Parliament, which was to meet at London at Easter. This letter is signed by the Bishops of St Andrews and Glasgow; by John Comyn and James the Stewart of Scotland, guardians of the kingdom of Scotland; and by twelve bishops, twelve earls, twenty-three abbots, eleven priors and forty-eight barons.

On the same day, Sir Herbert of Maxwell joined with the Estates in sending a letter to Eric King of Norway on the same topic. They informed him that, with the assent of the whole kingdom of Scotland, they had, sensible of the great advantage which would thereby accrue to both kingdoms, agreed to the marriage of Queen Margaret with the Prince of England. They requested him to send his daughter into England before the Feast of All Saints. In conclusion, they warned him that should he fail to do this, it would be necessary for them to follow the best counsel which God might give them for the welfare of the kingdom. The tone of the letter testifies to the great anxiety of the Scottish nobility for the arrival of their Queen. Their solicitude in this respect did not exceed that of Edward. He, however, did not trust to simple entreaty to gain his object. As a more effectual means of persuasion, he despatched to Norway one of his principal counsellors to distribute money, under the name of presents, to the King's ministers.

Queen Margaret, attended by a suitable escort, left the shores of Norway for Scotland; but she unhappily died on her passage, near Orkney, in September 1290, an event which, though she was a child of only eight years of age, was most calamitous for Scotland, and the melancholy tidings of which spread gloom and sorrow over the whole kingdom. As she was the last of the descendants of Alexander the Third, her death gave rise to disputes about the succession, which, heightened and embittered by the interference of Edward the First, King of England, who availed himself of an opportunity so favourable for attempting the subjugation of Scotland to the power of England, involved the kingdom in confusion and misery for many years.

Twelve competitors for the crown came forward. It is sufficient here to mention only two, by whom the contest was maintained, Robert de Bruce, who was the son of Isabella, second daughter of David Earl fo Huntingdon, brother of King William the Lion, by her husband, Robert Bruce, Lord of Annandale; and John de Baliol, who was the grandson of Margaret, the eldest daughter of the same earl. The former rested his claims on his being the grandson of the Earl of Huntingdon, by which, though born of a younger daughter, he was a degree nearer that his competitor; and the latter laid claim to the succession because, though a degree more remote than Bruce, he was a descendant of the eldest daughter.

The decision of the claims of the competitors was referred to Edward King of England; but before he would undertake the office of umpire, he required from them, and from the nobility, what he had not much difficulty in obtaining, an acknowledgement of his prerogative as Lord Superior of the kingdom of Scotland.

Herbert of Maxwell supported the claims of Baliol; and when auditors, ammounting to one hundred and four, were appointed, eighty from Scotland by Bruce and Baliol, and twenty-four from England by King Edward, to hear the petitons and arguments of the competitors, and to prepare the case for the final decision of King Edward, Herbert of Maxwell was one of the auditors who were named by John de Baliol.

On the 12th of August 1291, in the court of the Castle of Berwick, the petitions of the claimants of the Crown of Scotland were read in the presence of King Edward, before the auditors, and before the bishops, earls, barons, and other great men of the kingdom of Scotland. This was followed by the pleadings of the parties. At the close Edward, with the consent of the foresaid prelates, earls, etc., appointed that they should meet on the morrow of the Holy Trinity, namely, on the 2d of June 1292, in the same place, for further proceedings. On the 2d of June, at Berwick, the auditors were charged to determine the rights as between Bruce and Baliol. On 18th June, the Wednesday after the Feast of St Botolph, at Berwick, Bruce replied to the exceptions taken by Baliol, and on the following day Baliol delivered his last objections.

Sir Herbert of Maxwell, as one of the auditors, attended these meetings, and heard the lengthened pleadings of Bruce and Baliol in support of their respective claims.

On the 21st of June, the Saturday before the Nativity of St John the Baptist, at Berwick-upon-Tweed, Sir Herbert joined with the other auditors in delivering their letters-testimonial, in which they declared that the arguments adduced by the two competitors and their counsel before them, and finally given in writing, were all that needed to be said to enable the King of England to proceed to give judgement between the two parties. Herbert of Maxwell was one of the one hundred and four auditors who appended their seald to that letter.

His seal, with the saltire on a shield, which is appended to one of the documents connected with the case of these competitors, is the earliest known heraldic cognisance of the family, and it is said to have been first assumed by an ancestor who had been in the Crusades.

At a meeting of a Parliament of England held at Berwick on the 14th of October 1292, Herbert of Maxwell again attended as one of the auditors. On this occasion, Bruce and Baliol being present, Edward, as Lord Superior of the kingdom of Scotland, submitted two question to the nobility and bishops of both kingdoms and the auditors, for decision. The one was, By what laws or customs he was to proceed to give judgment? or, if the laws or customs of the kingdoms of England and Scotland were different as to the question in dispute, how he was to proceed in pronouncing judgment? The second was, Whether the succession to the Crown of Scotland was to be decided according to the principle by which the succession to the earldoms and baronies were regulated? They unanimously replied that he was to judge in this case by the laws and customs of the kingdom of Scotland; that if such did not exist, he was, in respect of his regal dignity, with the counsel of the nobles, prelates, and great men of his kingdom, to make a new law; and that the succession to the Crown of Scotland was to be determined on the same principle as the succession to earldoms, baronies and other indivisible inheritances.

Bruce and Baliol, on being interrogated by the King, having expressed their desire to be permitted to make additional statements in support of their claims, Herbert of Maxwell, along with the other auditors, at the King's command, withdrew to the church of the Preaching Friars to hear what the competitors had further to adduce. Bruse argued that the claim was to be judged by the law of nations; and Baliol that it was to be determined by the law of ordinary succession. Having heard both parties, the auditors reported to the King the substance of what had been said. The King then asked the bishops, earls, barons, magnates and his whole counsel and the auditors, which of the two competitors they would, on the consideration of the arguments advanced on both sides, prefer as successor to the sovereign power of the kingdom of Scotland? and whether a competitor lineally descended from the eldest daughter or the deceased rightful heir, though more remote by one degree in the succession, ought, according to the laws and customs of both kingdoms, to exclude one descended from the second eldest daughter of the deceased rightful heir, though one degreee nearer in the succession; or vice versa? The nobles, prelats, auditors and others of both kingdoms unanimously answered that of these two competitors the one descended from the eldest daughter ought to be preferred.

On the 17th of November, King Edward, in presence of his Council and the Parliament of England assembled in the Castle of Berwick, with the nobility of both kingdoms, gave judgment in favour of John Baliol, as being entitled to the crown of Scotland.

Herbert of Maxwell was a member of a Parliament held at Dunfermline on 23rd February 1295-6, which ratified a treaty for the marriage of Edward, Baliol's eldest son and heir-apparent, with a niece of Philip King of France, and for a league offensive and defensive between the Scots and the French. To this treaty Herbert's seal, and teh seals of certain bishops, earls, and barons were appended. Baliol and the nobles and barons of Scotland had been impelled to take this step by the arrogance with which Edward maintained his assumed prerogative of Lord Paramount of Scotland, to which Baliol, Bruce, and the nobility of Scotland had only too tamely submitted. War having broken out between England and France, Edward demanded that the Scots, according to their oath of fealty, should assist him against the French. Philip, the French monarch, on the other hand, requested that the Scots would renew the ancient league between France and Scotland. Baliol and the national council, who feld that humiliation of having given their oaths of fidelity to the English king, ready to avail themselves of the first opportunity that promised to deliver them from their degraded position, refused to give Edward the assistance which he required. At the same time, by letters-procuratory, dated at Stirling, 5th July 1295, they despatched ambassadors to France, to negotiate the treaty above mentioned, which was entered into at Paris on the 23d of October.

Irritated at this league between the Scots and the French, the English monarch hastened to invade Scotland with a powerful army. His object was the complete prostration of that kingdom to the power of England. It was necessary for Baliol to take up arms. Herbert of Maxwell, along with others, joined in supporting him and in defending his country against the English king. But Edward proved victorious. At the battle of Dunbar he defeated, with great slaughter, the Scots, of whom ten thousand were killed, and many, including the principal of the Scottish nobility, were made prisoners. He made himself master of the castles of Berwick, Dunbar, Roxburgh, Dumbarton, Edinburgh, and Stirling, and many of the Scottish nobility submitted to the conqueror. Baliol resigned his kingdom into the hands of Edward as his liege lord, in the Castle of Brechin, on 10th July 1296; and, after being confined at Hertford from 20th November 1296 to 6th August in the following year, he was transferred to the Tower of London, where he remained until the end of May 1299. Proceeding to Montrose, Aberdeen, and Elgin, in Moray, Edward met with no opposition, and received in his progress the submissions of most of the Scottish barons who had not fallen in battle or been made prisoners.

On the same day on which Baliol resigned his crown into the hands of Edward, the chief of his supporters were required unconditionally to submit, like their master, to the English king at Montrose, to renounce the recent treat entered into between Scotland and France, and to swear homage and fealty to him, namely John Comyn, Earl of Buchan' Douenald Earl of Mar; Sir Alexander of Baliol; Sir John Comyn of Badenach, elder, knight; Sir Herbert of Makeswell, and Sir John of Murray, knights. Each gave in a separate document his oath of homage.

Sir Herbert of Makeswell, knight, on the same day, in the presence of King Edward, the vernerable father in Christ the Bishop of Durham, John of Warenn, Roger of Norfolk, Humphrey of Hereford, William of Warwick, Patrick of Dunbar, and Gilbert of Angus, earls and a notary, made his submission. He wholly renounced the confederations and treaties, under whatever name, if any such ever existed in his name, entered into with the King of France against the King of England, with every advantage which could from thence accrue to him. Touching the sacred Scriptures and kissing the Gospels of God, he made faith to the King of England by his letters-patent, which are in French, and which, translated into English are as follows:

"To all those who shall see or hear these letters, Herbert of Makeswell, chevalier, Health: As I have come to the faith and to the will of the most noble Lord Edward, by the grace of God King of England, Lord of Ireland, and Duke of Aquitaine, I promise, for myself and for my heirs, under pain of body, according to our ability, that we shall serve him well and loyally against all people now or hereafter living, expressly against John of Baliol, who was King of Scotland, and against all his helpers and favourers in the kingdom of Scotland, and that we shall have all the fidelity which shall be required of us by our Lord the King of England beforesaid, or by his heirs, and that we shall not know of any injury to be done them which we will not prevent to the utmost of our power, and cause them to know it. To observe these things I bind myself and my heirs, and all my goods; and, besides, I have sworn upon the holy Gospels. In testimony of which thing I have caused these letters-patent to be sealed with my seal. Given at Montros, the 10th day of July, in the 24th year of the reign of our Lord and King of England." (1296)

On what occasion the dignity of knighthood was conferred upon Herbert of Maxwell we have not discovered. He is designated as Knight in the Ragman Rolls, when, at this time, he swore fealty to the King of England.

A Parliament was held at Berwick-upon-Tweed, on the 28th of August 1296, by King Edward of England. To this Parliament, to which the nobles, prelates, barons, and esquires of the kingdom of Scotland flocked in great numbers to do homage to the English king, Sir Herbert of Maxwell also hastened for the same purpose. Like them he renewed the oath of fidelity to Edward which he had formerly sworn, did homage to him for the lands which he possessed in the kingdom of Scotland, and engaged to be loyal to him and to his heirs, to protect their persons and their honour against all whomsoever, and never to bear arms nor to give counsel or assistance against them in any case whatever. The name of Sir Herbert of Makeswelle stands at the head of one of the many lists contining numerous names of persons who thus swore allegiance to the King of England; and, like the others, he ordered the letters-patent in which he thus swore allegiance to be sealed with his seal.

Having now subjugated Scotland, Edward pursued in some respects a prudent and equitable policy. He ordered that the forfeited lands of the clergy should be restored to them, and that the sub-tenants of Baliol, formerly King of Scotland, and of other lords, should also have their lands restored to them, on condition of their rendering fealty to the crown of England. Orders to that effect were sent to the Sheriffs of the different counties in Scotland.

In October 1296 orders were given by Edward to the Sheriff of Lanark, that Herbert of Makeswell, who held certain lands in Lanarkshire of Thomas of Somerville, should have his lands restored to him. Similar precepts were at the same time issued to the Sheriffs of Roxburgh and Edinburgh in favour of John of Makeswell, who held of Herbert of Makeswell lands in both these counties.

At a later period Sir Herbert of Maxwell is said to have entertained one night, in the castle of Carlaverock, his friend Sir William Wallace, after he had taken various strongholds in Nithsdale, and vanquished a party of English troops in Dalswinton wood.

Under the designation of knight he granted to the Church of St James and St Mirin of Paisley, and to the monks there serving God, for a free and perpetual alms, and exempt from every secular service and demand, eight and a half acres and twenty-eight particated of land in the new town [Newtown] of Mearns, which he had caused to be measured, and which was bounded as therein described. The charter was sealed with the granter's seal and with the seal of Robert of Glasgow. Among the witnesses were John and Alexander, the granter's brothers, Sir William and Bricius, chaplains of Paisley. The charter is without date.

Herbert of Maxwell, Knight, made provision for the sustentation of a chaplain, who should yearly, in perpetuity, celebrate divine service in honour of the blessed Virgin Mary, in the parish chruch of Mearns, for the living and the dead. This he did for the welfare of his soul, and of the souls of his ancestors and successors. The money appropriated for this object was six silver merks of annual rent from the profits of his mills of Mearns in the Aldton, and from the profits of his other mills of Mearns, to be held in pure and perpetual alms. He also ordained that as often as the chaplain who should be appointed to execute that office should leave it vacant by death or otherwise, he and his heirs should have the power of appointing another chaplain in his place. Among the witnesses was John of Maxwell, Lord of Nether Pollock. This charter is also without date.

About the same time, Sir Herbert granted an obligation to the Abbot and Convent of Paisley, binding himself and his heirs to find a chaplain to celebrate divine service in perpetuum, in honour of the blessed Virgin Mary, for the granter, his predecessors, and successors, in the church of Mearns, according to the tenor of a letter made thereupon by the granter, which was to remain in the hands of the Abbot and Convent of Paisley.

In the genealogical history of the family of Maxwell in the British Museum, Sir Herbert of Maxwell is said to have been killed at the battle of Falkirk, in the year 1298. But this genealogical history, as has been observed before, is not one of the best authorities. The exact date of the death of Sir Herbert must therefore be left uncertain.

Sir Herbert had a son John. Whether John succeeded his father, or predeceased him, we are unable to determine, though there is some reason to think that the latter is the fact. [The Book of Carlaverock I:81-91]

Sources:

  1. Type: Web Site

     Author: Jim Weber

     Title: The Phillips, Weber, Kirk & Staggs Famlies

     URL: http://wc.rootsweb.ancestry.com/cgi-bin/igm.cgi?op=GET&db=jweber&id

     Date: Sep 19, 2010

     Detail: Jim Weber cites numerous sources for his data. See his posting for details.

  2. Type: Web Site

     Author: Jane Williams Flank

     Title: Williams/Rose Legacies

     URL: http://wc.rootsweb.com/cgi-bin/igm.cgi?op=GET&db=jwflank&id

     Date: Jan 10, 2009 

Herbert....of Carlaverock, on the Solway Firth, which he held by 1300, when the celebrated Seige of it by the English took place; swore fealty to Edward I following the English victory over the Scots of Dunbar 27 April 1296; allegedly killed at the English victory over the Scots of Falkirk 22 July 1298. [Burke' Peerage]

Jim weber notes: "Burke's Peerage does not try to explain how a man 2 years dead holds a castle, but it may have been his son who held it in 1300 because Herbert died supposedly in 1298."

SIR HERBERT DE MAXWELL, son and heir according to a charter variously assigned by Sir William Fraser to, "in or before 1266" and "circa 1270." He sat in the Parliament at Scone, February 1283/4, which acknowledged the "Maid of Norway" as heiress presumptive of the Scottish crown, and attended the convention at Brigham, March 1289/90, which ratified the proposal for her marriage to Prince Edward of England. In the dispute for the crown which followed her death Maxwell acted as one of Baliol's commissioners, 1292. After Edward I's victory at Dunbar he swore fealty to the English King at Montrose, 10 July 1296, and again, 28 August, at Berwick. He was one of the Scottish magnates summoned to serve with Edward I in Flanders, 1297; and is said to have fallen at the battle of Falkirk, 1298. [Complete Peerage VIII:587, (transcribed by Dave Utzinger)]

Jim Weber posts the following about Caerlaverock Castle: "But the Scots soon began to rebel against Edward. In 1300 he invaded Galloway, one of the centres of resistance, and Caerlaverock was one of the prime targets for his wrath. The siege of Caerlaverock is one of the most well known incidents of this time because of a detailed written account by a member of the besieging army.

"Edward of England came with 87 knights and 3000 men. Siege engines were sent for from the castles of Lochmaben, Carlisle, Roxburgh, Jedburgh and Skinburness. The siege didn't last long and Lord Maxwellís garrison of 60 men soon surrendered. Some were hanged from the castle walls and the rest were allowed to walk free. The castle remained in English hands until 1312.

"The keeper of the castle was none other than Sir Eustace Maxwell, demonstrating the borderer's remarkable ability to make the most from both sides. In 1312 he declared for Robert Bruce, King of Scots. He was besieged in the castle but held out. Robert I granted him a charter of annual rent for demolishing the castle in line with Robert Bruces policy of destroying all stronghold that could be used by an invading force.

"The accession of David II to the Scottish throne in 1329 and the re-opening of hostilities between Scotland and England was a sign for Sir Eustace to change his allegiances once again. The Maxwells were loyal to the Balliols and not to the Bruces and when in 1332, Edward Balliol was crowned King of Scots at Scone Sir Eustace repaired and garrisoned Caerlaverock and placed it at Balliols disposal."

(note Eustace was eldest son of John & grandson of this Herbert)

During his father's lifetime, Herbert, under the designation of son and heir of Sir Aymer of Maxwell, obtained from William of Coninburcht a charter of one carucate of land in Brakanwra, to be held for rendering to the granter and his heirs, in name of feu-farm, twelve pennies for every secular service, exaction and demand. The charter is undated; but as it was granted in the lifetime of Sir Aymer of Maxwell, the father of Herbert, its date must have been in or before the year 1266.

For a number of years after he came into possession of the family inheritance Sir Herbert's name does not appear appear in contemporary memorials in connexion with any transaction, private or public.

He was the first of the house of Maxwell who acquired the lands of Pencaitland, in the constabulary of Haddington and county of Edinburgh. They became his property about ten years after his father's death. On the 18th of May, being the Monday following the Ascension, 1276, resignation was made by John of Pencaitland in favour of Herbert of Mackeswell, and his heirs, of the land of Pencaitland on the west side of the water of Tyne, with the patronage of the Church of Pencaitland, before Sir Hugh of Berkelay, Justiciar of Lothian, in full court, at the Castle of Edinburgh (Castrum puellarum). Of these lands William of Douglas, John of Lambertoun, and Richard of Birgirton, knights, had ascertained the extent for the King, with the exception of the copse of Suth, the copse that Sir Alan of Ormiston held of the resigner, and also the Ruthirkroc. Among the witnesses were John Cumyn, son, John of Lyndesay, Richard Fraser, John of Lamberton, Walter of Lyndesay, lord of Periston, knights, William of Lyndesay, Ralph of Eyclyn and others. To this resignation were appended the seals of the granter, of Sir Hugh of Berkelay, Jusiciar of Lothian, and Sir Symon Fraser; but they are no wanting.

About eight and a half years after, Herbert, under the designation of "dominus Herbert de Maxwel," was witness to an agreement between the Abbot and Convent of Paisley on the one side, and John of Aldhus, son of Roger of Aldhus, on the other. By this agreement, John of Aldhus, at Glasgow, on the Tuesday immediately before the Feast of St Nicholas, bishop, (December 5th) in the year 1284, in the presence of William of Soulys, then Justiciar of Lothian, and other magnates, in full court, renounced in favour of the Abbot and Convent of Paisley his whole right in the land of Aldhus; and the foresaid Abbot and Convent, with the consent of their chapter, granted in farm to the foresaid John that portion of land in the territory of Aldhus which Patrick, son of Neuyn, formerly held in farm of the monks of Paisley.

Herbert of Maxwell, like his father, acted a prominent part in the political transactions of the kingdom. In the reign of King Alexander the Third, and in the calamitous times which followed on the death of that monarch and on the death of his grand-daughter, Margaret of Norway, he appears as sharing constantly in the administration of public affairs.

He sat in a Parliament of the Estates of the kingdom, held at Scone, on the 5th of February 1283-4, consisting of thirteen earls, eleven bishops, and twenty-five barons, who bound themselves to acknowledge, maintain and defend Margaret, Princess of Norway (commonly called the Maiden of Norway), born of Alexander's daughter Margaret by her marriage with Eric, King of Norway, as heiress of the kingdom of Scotland, the Isle of Man, the Hebrides, Tynedale and Penrith, should King Alexander die without lawful children, male or female, of his own body, or should no child of the body of the deceased Prince Alexander be born by his widowed Princess. This Parliament was assembled within a week after the death of Prince Alexander, and when it was uncertain whether his Princess Margaret of Flanders, a daughter of Count Guy de Dampieere, to whom he had married on 12th November 1281, would have by him offspring. It was rendered necessary for the settlement of the succession to the Crown, as King Alexander the Third had become childless by a rapid series of domestic calamities. His youngest son, David, died, aged only ten years, in the year 1280; and his daughter Margaret, Queen of Norway, having also died, there remained only of his issue the infant Princess Margaret, the daughter of that queen. The King also was a widower, his queen, Margaret, having died in 1275.

Alexander the Third met with an accidental death. On the 16th of March 1285, the night being dark, he left Inverkeithing on horseback for Kinghorn. The road at some points passed dangerous cliffs overhanging the sea, and over one of these the King was thrown, and killed on the spot, owing to a false step made by his horse. He was succeeded by his granddaughter Margaret, Princess of Norway.

Herbert of Maxwell united with other prelates, nobles and barons in promoting the proposed marriage of Margaret with Henry, eldest son of Edward the First, King of England; a measure which promised greatly to contribute to the tranquillity and prosperity of the kingdoms, both of Scotland and England. As a member of the Estates of the kingdom of Scotland which met at Brigham, a village on the Tweed, in the county of Berwick, Herbert of Maxwell signed a letter, dated 17th March 1289-90, which was despatched by that Parliament to Edward the First of England, relating to that proposal. The letter expressed the joy of the Estates at the news in common circulation, that a Papal dispensation had been granted for the marriage of his son, Prince Edward, with Margaret Queen of Scotland, their dearest lady. It also desired that he would be pleased to sent them direct intelligence regarding a measure so closely connected with the well-being of both kingdoms. It further assured him of their cordial approval of the alliance, upon certain resonable conditions, for the settlemet of which they would send delegates to him, and to his Parliament, which was to meet at London at Easter. This letter is signed by the Bishops of St Andrews and Glasgow; by John Comyn and James the Stewart of Scotland, guardians of the kingdom of Scotland; and by twelve bishops, twelve earls, twenty-three abbots, eleven priors and forty-eight barons.

On the same day, Sir Herbert of Maxwell joined with the Estates in sending a letter to Eric King of Norway on the same topic. They informed him that, with the assent of the whole kingdom of Scotland, they had, sensible of the great advantage which would thereby accrue to both kingdoms, agreed to the marriage of Queen Margaret with the Prince of England. They requested him to send his daughter into England before the Feast of All Saints. In conclusion, they warned him that should he fail to do this, it would be necessary for them to follow the best counsel which God might give them for the welfare of the kingdom. The tone of the letter testifies to the great anxiety of the Scottish nobility for the arrival of their Queen. Their solicitude in this respect did not exceed that of Edward. He, however, did not trust to simple entreaty to gain his object. As a more effectual means of persuasion, he despatched to Norway one of his principal counsellors to distribute money, under the name of presents, to the King's ministers.

Queen Margaret, attended by a suitable escort, left the shores of Norway for Scotland; but she unhappily died on her passage, near Orkney, in September 1290, an event which, though she was a child of only eight years of age, was most calamitous for Scotland, and the melancholy tidings of which spread gloom and sorrow over the whole kingdom. As she was the last of the descendants of Alexander the Third, her death gave rise to disputes about the succession, which, heightened and embittered by the interference of Edward the First, King of England, who availed himself of an opportunity so favourable for attempting the subjugation of Scotland to the power of England, involved the kingdom in confusion and misery for many years.

Twelve competitors for the crown came forward. It is sufficient here to mention only two, by whom the contest was maintained, Robert de Bruce, who was the son of Isabella, second daughter of David Earl fo Huntingdon, brother of King William the Lion, by her husband, Robert Bruce, Lord of Annandale; and John de Baliol, who was the grandson of Margaret, the eldest daughter of the same earl. The former rested his claims on his being the grandson of the Earl of Huntingdon, by which, though born of a younger daughter, he was a degree nearer that his competitor; and the latter laid claim to the succession because, though a degree more remote than Bruce, he was a descendant of the eldest daughter.

The decision of the claims of the competitors was referred to Edward King of England; but before he would undertake the office of umpire, he required from them, and from the nobility, what he had not much difficulty in obtaining, an acknowledgement of his prerogative as Lord Superior of the kingdom of Scotland.

Herbert of Maxwell supported the claims of Baliol; and when auditors, ammounting to one hundred and four, were appointed, eighty from Scotland by Bruce and Baliol, and twenty-four from England by King Edward, to hear the petitons and arguments of the competitors, and to prepare the case for the final decision of King Edward, Herbert of Maxwell was one of the auditors who were named by John de Baliol.

On the 12th of August 1291, in the court of the Castle of Berwick, the petitions of the claimants of the Crown of Scotland were read in the presence of King Edward, before the auditors, and before the bishops, earls, barons, and other great men of the kingdom of Scotland. This was followed by the pleadings of the parties. At the close Edward, with the consent of the foresaid prelates, earls, etc., appointed that they should meet on the morrow of the Holy Trinity, namely, on the 2d of June 1292, in the same place, for further proceedings. On the 2d of June, at Berwick, the auditors were charged to determine the rights as between Bruce and Baliol. On 18th June, the Wednesday after the Feast of St Botolph, at Berwick, Bruce replied to the exceptions taken by Baliol, and on the following day Baliol delivered his last objections.

Sir Herbert of Maxwell, as one of the auditors, attended these meetings, and heard the lengthened pleadings of Bruce and Baliol in support of their respective claims.

On the 21st of June, the Saturday before the Nativity of St John the Baptist, at Berwick-upon-Tweed, Sir Herbert joined with the other auditors in delivering their letters-testimonial, in which they declared that the arguments adduced by the two competitors and their counsel before them, and finally given in writing, were all that needed to be said to enable the King of England to proceed to give judgement between the two parties. Herbert of Maxwell was one of the one hundred and four auditors who appended their seald to that letter.

His seal, with the saltire on a shield, which is appended to one of the documents connected with the case of these competitors, is the earliest known heraldic cognisance of the family, and it is said to have been first assumed by an ancestor who had been in the Crusades.

At a meeting of a Parliament of England held at Berwick on the 14th of October 1292, Herbert of Maxwell again attended as one of the auditors. On this occasion, Bruce and Baliol being present, Edward, as Lord Superior of the kingdom of Scotland, submitted two question to the nobility and bishops of both kingdoms and the auditors, for decision. The one was, By what laws or customs he was to proceed to give judgment? or, if the laws or customs of the kingdoms of England and Scotland were different as to the question in dispute, how he was to proceed in pronouncing judgment? The second was, Whether the succession to the Crown of Scotland was to be decided according to the principle by which the succession to the earldoms and baronies were regulated? They unanimously replied that he was to judge in this case by the laws and customs of the kingdom of Scotland; that if such did not exist, he was, in respect of his regal dignity, with the counsel of the nobles, prelates, and great men of his kingdom, to make a new law; and that the succession to the Crown of Scotland was to be determined on the same principle as the succession to earldoms, baronies and other indivisible inheritances.

Bruce and Baliol, on being interrogated by the King, having expressed their desire to be permitted to make additional statements in support of their claims, Herbert of Maxwell, along with the other auditors, at the King's command, withdrew to the church of the Preaching Friars to hear what the competitors had further to adduce. Bruse argued that the claim was to be judged by the law of nations; and Baliol that it was to be determined by the law of ordinary succession. Having heard both parties, the auditors reported to the King the substance of what had been said. The King then asked the bishops, earls, barons, magnates and his whole counsel and the auditors, which of the two competitors they would, on the consideration of the arguments advanced on both sides, prefer as successor to the sovereign power of the kingdom of Scotland? and whether a competitor lineally descended from the eldest daughter or the deceased rightful heir, though more remote by one degree in the succession, ought, according to the laws and customs of both kingdoms, to exclude one descended from the second eldest daughter of the deceased rightful heir, though one degreee nearer in the succession; or vice versa? The nobles, prelats, auditors and others of both kingdoms unanimously answered that of these two competitors the one descended from the eldest daughter ought to be preferred.

On the 17th of November, King Edward, in presence of his Council and the Parliament of England assembled in the Castle of Berwick, with the nobility of both kingdoms, gave judgment in favour of John Baliol, as being entitled to the crown of Scotland.

Herbert of Maxwell was a member of a Parliament held at Dunfermline on 23rd February 1295-6, which ratified a treaty for the marriage of Edward, Baliol's eldest son and heir-apparent, with a niece of Philip King of France, and for a league offensive and defensive between the Scots and the French. To this treaty Herbert's seal, and teh seals of certain bishops, earls, and barons were appended. Baliol and the nobles and barons of Scotland had been impelled to take this step by the arrogance with which Edward maintained his assumed prerogative of Lord Paramount of Scotland, to which Baliol, Bruce, and the nobility of Scotland had only too tamely submitted. War having broken out between England and France, Edward demanded that the Scots, according to their oath of fealty, should assist him against the French. Philip, the French monarch, on the other hand, requested that the Scots would renew the ancient league between France and Scotland. Baliol and the national council, who feld that humiliation of having given their oaths of fidelity to the English king, ready to avail themselves of the first opportunity that promised to deliver them from their degraded position, refused to give Edward the assistance which he required. At the same time, by letters-procuratory, dated at Stirling, 5th July 1295, they despatched ambassadors to France, to negotiate the treaty above mentioned, which was entered into at Paris on the 23d of October.

Irritated at this league between the Scots and the French, the English monarch hastened to invade Scotland with a powerful army. His object was the complete prostration of that kingdom to the power of England. It was necessary for Baliol to take up arms. Herbert of Maxwell, along with others, joined in supporting him and in defending his country against the English king. But Edward proved victorious. At the battle of Dunbar he defeated, with great slaughter, the Scots, of whom ten thousand were killed, and many, including the principal of the Scottish nobility, were made prisoners. He made himself master of the castles of Berwick, Dunbar, Roxburgh, Dumbarton, Edinburgh, and Stirling, and many of the Scottish nobility submitted to the conqueror. Baliol resigned his kingdom into the hands of Edward as his liege lord, in the Castle of Brechin, on 10th July 1296; and, after being confined at Hertford from 20th November 1296 to 6th August in the following year, he was transferred to the Tower of London, where he remained until the end of May 1299. Proceeding to Montrose, Aberdeen, and Elgin, in Moray, Edward met with no opposition, and received in his progress the submissions of most of the Scottish barons who had not fallen in battle or been made prisoners.

On the same day on which Baliol resigned his crown into the hands of Edward, the chief of his supporters were required unconditionally to submit, like their master, to the English king at Montrose, to renounce the recent treat entered into between Scotland and France, and to swear homage and fealty to him, namely John Comyn, Earl of Buchan' Douenald Earl of Mar; Sir Alexander of Baliol; Sir John Comyn of Badenach, elder, knight; Sir Herbert of Makeswell, and Sir John of Murray, knights. Each gave in a separate document his oath of homage.

Sir Herbert of Makeswell, knight, on the same day, in the presence of King Edward, the vernerable father in Christ the Bishop of Durham, John of Warenn, Roger of Norfolk, Humphrey of Hereford, William of Warwick, Patrick of Dunbar, and Gilbert of Angus, earls and a notary, made his submission. He wholly renounced the confederations and treaties, under whatever name, if any such ever existed in his name, entered into with the King of France against the King of England, with every advantage which could from thence accrue to him. Touching the sacred Scriptures and kissing the Gospels of God, he made faith to the King of England by his letters-patent, which are in French, and which, translated into English are as follows:

"To all those who shall see or hear these letters, Herbert of Makeswell, chevalier, Health: As I have come to the faith and to the will of the most noble Lord Edward, by the grace of God King of England, Lord of Ireland, and Duke of Aquitaine, I promise, for myself and for my heirs, under pain of body, according to our ability, that we shall serve him well and loyally against all people now or hereafter living, expressly against John of Baliol, who was King of Scotland, and against all his helpers and favourers in the kingdom of Scotland, and that we shall have all the fidelity which shall be required of us by our Lord the King of England beforesaid, or by his heirs, and that we shall not know of any injury to be done them which we will not prevent to the utmost of our power, and cause them to know it. To observe these things I bind myself and my heirs, and all my goods; and, besides, I have sworn upon the holy Gospels. In testimony of which thing I have caused these letters-patent to be sealed with my seal. Given at Montros, the 10th day of July, in the 24th year of the reign of our Lord and King of England." (1296)

On what occasion the dignity of knighthood was conferred upon Herbert of Maxwell we have not discovered. He is designated as Knight in the Ragman Rolls, when, at this time, he swore fealty to the King of England.

A Parliament was held at Berwick-upon-Tweed, on the 28th of August 1296, by King Edward of England. To this Parliament, to which the nobles, prelates, barons, and esquires of the kingdom of Scotland flocked in great numbers to do homage to the English king, Sir Herbert of Maxwell also hastened for the same purpose. Like them he renewed the oath of fidelity to Edward which he had formerly sworn, did homage to him for the lands which he possessed in the kingdom of Scotland, and engaged to be loyal to him and to his heirs, to protect their persons and their honour against all whomsoever, and never to bear arms nor to give counsel or assistance against them in any case whatever. The name of Sir Herbert of Makeswelle stands at the head of one of the many lists contining numerous names of persons who thus swore allegiance to the King of England; and, like the others, he ordered the letters-patent in which he thus swore allegiance to be sealed with his seal.

Having now subjugated Scotland, Edward pursued in some respects a prudent and equitable policy. He ordered that the forfeited lands of the clergy should be restored to them, and that the sub-tenants of Baliol, formerly King of Scotland, and of other lords, should also have their lands restored to them, on condition of their rendering fealty to the crown of England. Orders to that effect were sent to the Sheriffs of the different counties in Scotland.

In October 1296 orders were given by Edward to the Sheriff of Lanark, that Herbert of Makeswell, who held certain lands in Lanarkshire of Thomas of Somerville, should have his lands restored to him. Similar precepts were at the same time issued to the Sheriffs of Roxburgh and Edinburgh in favour of John of Makeswell, who held of Herbert of Makeswell lands in both these counties.

At a later period Sir Herbert of Maxwell is said to have entertained one night, in the castle of Carlaverock, his friend Sir William Wallace, after he had taken various strongholds in Nithsdale, and vanquished a party of English troops in Dalswinton wood.

Under the designation of knight he granted to the Church of St James and St Mirin of Paisley, and to the monks there serving God, for a free and perpetual alms, and exempt from every secular service and demand, eight and a half acres and twenty-eight particated of land in the new town [Newtown] of Mearns, which he had caused to be measured, and which was bounded as therein described. The charter was sealed with the granter's seal and with the seal of Robert of Glasgow. Among the witnesses were John and Alexander, the granter's brothers, Sir William and Bricius, chaplains of Paisley. The charter is without date.

Herbert of Maxwell, Knight, made provision for the sustentation of a chaplain, who should yearly, in perpetuity, celebrate divine service in honour of the blessed Virgin Mary, in the parish chruch of Mearns, for the living and the dead. This he did for the welfare of his soul, and of the souls of his ancestors and successors. The money appropriated for this object was six silver merks of annual rent from the profits of his mills of Mearns in the Aldton, and from the profits of his other mills of Mearns, to be held in pure and perpetual alms. He also ordained that as often as the chaplain who should be appointed to execute that office should leave it vacant by death or otherwise, he and his heirs should have the power of appointing another chaplain in his place. Among the witnesses was John of Maxwell, Lord of Nether Pollock. This charter is also without date.

About the same time, Sir Herbert granted an obligation to the Abbot and Convent of Paisley, binding himself and his heirs to find a chaplain to celebrate divine service in perpetuum, in honour of the blessed Virgin Mary, for the granter, his predecessors, and successors, in the church of Mearns, according to the tenor of a letter made thereupon by the granter, which was to remain in the hands of the Abbot and Convent of Paisley.

In the genealogical history of the family of Maxwell in the British Museum, Sir Herbert of Maxwell is said to have been killed at the battle of Falkirk, in the year 1298. But this genealogical history, as has been observed before, is not one of the best authorities. The exact date of the death of Sir Herbert must therefore be left uncertain.

Sir Herbert had a son John. Whether John succeeded his father, or predeceased him, we are unable to determine, though there is some reason to think that the latter is the fact. [The Book of Carlaverock I:81-91]

Sources:

 1. Type: Web Site

    Author: Jim Weber

    Title: The Phillips, Weber, Kirk & Staggs Famlies

    URL: http://wc.rootsweb.ancestry.com/cgi-bin/igm.cgi?op=GET&db=jweber&id

    Date: Sep 19, 2010

    Detail: Jim Weber cites numerous sources for his data. See his posting for details.

 2. Type: Web Site

    Author: Jane Williams Flank

    Title: Williams/Rose Legacies

    URL: http://wc.rootsweb.com/cgi-bin/igm.cgi?op=GET&db=jwflank&id

    Date: Jan 10, 2009