: The Law's Lumber Room (Second Series) by Watt Francis - Law Great Britain

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King should have?" asked James in angry amaze, as he ordered the band to instant execution. Gilnockie and company were presently strung up on some convenient yew-trees at Carlenrig, though, in accordance with romantic precedent, one is said to have escaped to tell the tale. Many of Johnie's name, among them Ill Will Armstrong, tersely described as "another stark thieff," went to their doom; but the act, however applauded at Edinburgh, was bitterly condemned on the Borders. Gilnockie only plundered the English, it was urged, and the King had caught him by a trick unworthy a Stuart. The country folk loved to tell how the dule-trees faded away, and they loved to point out the graves of the Armstrongs in the lonely churchyard. But the stirring ballad preserves the name better than all else. It unblushingly commends Gilnockie's love of honesty, his generosity, his patriotism, and directly accuses his Sovereign of treachery, in which accusation there is perhaps some truth. Anyhow, his execution was the violent act of a weak man, and had no permanent effect.

The Wardens had twofold duties: first, that of defence against the enemy; second, that of negotiation in times of peace with their mighty opposites. Thus the Border laws were part police and part international, and were administered in different courts. Offences of the first class were speaking or conferring with Englishmen without permission of the King or the Warden, and the warning Englishmen of the Scots' alertness in the matter of forays. In brief, aiding, abetting, or in any way holding intercourse with the "auld enemy" was march treason .

In England the Wardens were finally chosen for their political and military skill, not because of their territorial position. Now, the Warden of the East Marches was commonly Governor and Castellan of Berwick. The castle of Harbottell was allotted to the Warden of the Middle Marches; whilst for the West, Carlisle, where again Governor and Warden were often one, was the appointed place. Sometimes a Lord warden-general was appointed, sometimes a Lieutenant, but the Wardens were commonly independent. At the Warden courts Englishmen were punished for march treason, a branch of which was furnishing the Scots with articles of merchandise or war. And here I note that Carlisle throve on this illegal traffic. At Carlisle Fair the Carlisle burgher never asked the nationality of man or beast. The first got his money or its equivalent; the second was instantly passed through the hands of butcher and skinner. Though the countryside were wasted, the burghers lay safe within their strong walls, and waxed fat on the spoils of borderman and dalesman alike. Small wonder the city was "Merrie Carlisle." The law struck with as little force against blackmail, or protection money, which it was an offence to pay to any person, Scots or English. From this source, Gilnockie and others, coining the terror of their name, drew great revenue. Another provision was against marriage with a Scotswoman without the Warden's consent, for in this way traitors, or "half-marrows," arose within the gate. Complete forms are preserved of the procedure at those Warden courts. There were a grand jury and an ordinary jury, and the Warden acted very much as a judge of to-day. One or two technical terms I shall presently explain. Here I but note that the criminal guilty of march treason was beheaded "according to the customs of the marches."

Our party crosses in safety and makes to one of those hidden spots, as near as may be to the scene of action. Here it rests and refreshes itself during the day, and next night it swoops down on its appointed foray. The chief quest was ever cattle, which were eatable and portable. But your moss-trooper was not particular. He took everything inside and outside house and byre. Many lists are preserved of things lifted, whereof one notes a shroud and children's clothes. A sleuth-hound was a choice prize. Possibly its abduction touched the Borderer's sense of humour. Scott of Harden, escaping from a raid, with "a bow of kye and a bassen'd bull," passed a trim haystack. He sighed as he thought of the lack of fodder in his own glen. "Had ye but four feet ye should not stand lang there," he muttered as he hurried onwards. Not to him, not to any rider was it given to tarry by the way, for the dalesmen were not the folk to sit down under outrage. The warder, as he looked from the "Scots gate" of Carlisle castle, and saw the red flame leaping forth into the night from burning homestead or hamlet, was quick to warn the countryside that a reiving expedition was afoot. Even though the prey were lifted unobserved, that only caused a few hours' delay, and soon a considerable body, carrying a lighted piece of turf on a spear, as a sign, was instant on the invader's trace. This "following of the fraye" was called "hot-trod," and was done with hound and horn, and hue and cry. Certain privileges attached to the "hot-trod." If the offender was caught red-handed he was executed; or, if thrift got the better of rage, he was held to ransom. As early as 1276 a curious case is reported from Alnwick, of a Scot attacking one Semanus, a hermit, and taking his clothes and one penny! Being presently seized, the culprit was beheaded by Semanus in person, who thus recovered his goods and took vengeance of his wrong. A later legend illustrates the more than summary justice that was done. The Warden's officers having taken a body of prisoners, asked my Lord his pleasure. His Lordship's mind was "ta'en up wi' affairs o' the state," and he hastily wished the whole set hanged for their untimely intrusion. Presently he was horrified to find that his imprecations had been taken as literal commands, and literally obeyed. Even if the reivers gained their own border, the law of "hot-trod" permitted pursuit within six days of the offence. The pursuer, however, must summon some reputable man of the district entered to witness his proceedings. Nay, the inhabitants generally must assist him--at least, the law said so.

The Lairdis Jok All with him takis.

In the century preceding the Union of the Crowns, the international code was very highly developed, and the procedure was strictly defined. As England was the larger nation, and as its law was in a more highly developed and more firm and settled state, its methods were followed on the whole. The injured party sent a bill of complaint to his own Warden; and the bill, even as put into official form, was simplicity itself. It said that A. complained upon B. for that--and then followed a list of the stolen goods, or the wrongs done. It was verified by the complainant's oath, and thereafter sent to the opposite Warden, whose duty was to arrest the accused or at least to give him notice to attend on the next Day of Truce. The Wardens agreed on the Day, and the place was usually in the northern kingdom, where most of the defendants lived. The meeting was proclaimed in all the market towns on either side. The parties, each accompanied by troops of friends, came in; and a messenger from the English side demanded that assurance should be kept till sunrise the following day. This was granted by the Scots, who proceeded to send a similar message, and were presently secured by a similar assurance. Then each Warden held up his hand as a sign of faith, and made proclamation of the Day to his own side . The English Warden now came to his Scots brother, whom he saluted and embraced; and the business of the Day of Truce began. That business was commerce, and pleasure, as well as law. Merchants come with their wares; booths were run up; a brisk trade ran in articles tempting to the savage eye. Both sides were ready for the moment to forget their enmities. If they could not fight, they could play, and football was ever your Borderers' favourite pastime . Gambling, too, was a popular excitement. There was much of feasting and drinking, and sure some Border Homer, poor and old and blind, even as him of Chios, was there to charm and melt his rude hearers with the storied loves and wars of other days. The conclave fairly hummed with pleasure and excitement. Yet with such inflammable material, do you wonder that the meeting ended now and again in most admired disorder?

For our bill of complaint, it might be tried in more than one way. It might be by "the honour of the Warden," who often had knowledge, personal or acquired, of the case, and felt competent to decide the matter off-hand. On his first appearance he had taken an oath in presence of the opposite Warden and the whole assemblage to do justice, and he now officially "fyled" or "cleared the bill" by writing on it the words "foull , as I am verily persuaded upon my conscience and honour"--a deliverance after the method wherein individual peers give their voice at a trial of one of their order. This did not of necessity end the matter, for the complainant could present a new bill and get the verdict of a jury thereon, which also was the proper tribunal where the Warden declined to interfere. It was thus chosen: The English Warden named and swore in six Scots, the Scots Warden did the like to six Englishmen. The oath ran in these terms:--"Yea shall cleare noe bill worthie to be fild, yea shall file no bill worthie to be cleared," and so forth. Warden sergeants were appointed who led the jury to a retired place; the bills were presented; and the jurymen fell to work. It would seem that they did so in two sections, each considering complaints against its own nationality. If the bill was "fyled," the word "foull" was written upon it ; but how to get such a verdict under such conditions? The assize had more than a fellow-feeling for the culprit: like the jury in Aytoun's story, they might think that Flodden was not yet avenged. There were divers expedients to this end. Commissioners were sometimes appointed by the two crowns to solve a difficulty a Warden Court had failed to adjust. Again, it was strangely provided that "If the accused be not quitt by the oathe of the assize it is a conviction." One very stubborn jury sat for a day, a night, and a day on end, "almost to its undoeinge." The Warden, enraged at such conduct and yet fearing for the men's lives, needs must discharge them. I ought to mention an alleged third mode of trial by vower, who, says Sir Walter Scott, was an umpire to whom the dispute was referred. Rather was he a witness of the accused's own nation. Some held such evidence essential to conviction; if honest, it was practically conclusive.

The Percy owt of Northumberland, And a vow to God mayd he, That he wolde hunte in the mountayns Off Cheviot within dayes thre, In the mauger of doughty Douglas, And all that ever with him be.

Douglas took a summary mode of redress where a later and tamer owner had lodged his bill. In a common case of theft, if the offender were not present , the Warden must produce him at the next Day of Truce. Indeed, whilst the jury was deliberating, the officials were going over the bills "filed" on the last Day, and handing over each culprit to the opposite Warden; or sureties were given for him; or the Warden delivered his servant as pledge. If the pledge died, the body was carried to the next Warden Court.

The guilty party, being delivered up, must make restitution within forty days or suffer death, whilst aggravated cases of "lifting" were declared capital. In practice a man taken in fight or otherwise was rarely put to death. Captive and captor amicably discussed the question of ransom. That fixed, the captive was allowed to raise it; if he failed he honourably surrendered. The amount of restitution was the "Double and Salffye," to wit, three times the value of the original goods, two parts being recompense, and the third costs or expenses. Need I say that this triple return was too much for Border honesty? Sham claims were made, and these, for that they obliged the Wardens "to speire and search for the thing that never was done," were rightly deemed a great nuisance. As the bills were sworn to, each false charge involved perjury; and in 1553 it was provided that the rascal claimants should be delivered over to the tender mercies of the opposite Warden. Moreover, a genuine bill might be grossly exaggerated . If it were disputed, the value was determined by a mixed jury of Borderers.

I have had occasion to refer to Border faith. In 1569 the Earl of Northumberland was implicated in a rising against Elizabeth. Fleeing north, he took refuge with an Armstrong, Hector of Harelaw, who sold him to the Regent Murray. Harelaw's name became a byword and a reproach. He died despised and neglected; and "to take Hector's cloak" was an imputation of treachery years after the original story had faded. Thus, in Marchland the deadliest insult against a man was to say that he had broken faith. The insult was given in a very formal and deliberate manner, called a Baugle. The aggrieved party procured the glove or picture of the traitor, and whenever there was a meeting he gave notice of the breach of faith to friend and foe, with blast of the horn and loud cries. The man insulted must give him the lie in his throat, and a deadly combat ensued. The Laws of the Marches attempted to substitute the remedy by bill, that the matter might not "goe to the extremyte of a baughle," or where that was impossible, to fix rules for the thing itself. Or, the Wardens were advised to attend, with less than a hundred of retinue, to prevent "Brawling, buklinge, quarrelinge, and bloodshed." Such things were a fruitful source of what a Scots Act termed "the heathenish and barbarous custom of Deadly Feud." When one slew his fellow under unfair conditions, the game of revenge went see-sawing on for generations. The Border legislators had many ingenious devices to quench such strife. A Warden might order a man complained of to sign in solemn form a renunciation of his feud; and if he refused, he was delivered to the opposite Warden till he consented. In pre-Reformation days the church did something by enjoining prayer and pilgrimage. A sum of money now and again settled old scores; or there might be a treaty of peace cemented by marriage. Sometimes, again, there was a fight by permission of the Sovereign. Still, prearranged single combats, duels in fact, were frequent on the Border. Turner, or Turnie Holme, at the junction of the Kirshope and Liddel, was a favourite spot for them.

He has ta'en the table wi' his hand, He garr'd the red wine spring on hie.

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