Border Raids and Reivers Part 4

VIII. The a.s.saulting of any Scottishman having a regular pa.s.s or safe-conduct.

IX. In time of war the giving tidings to the Scottish of any exploit intended against them by the warden or his officers.

X. The conveying coined money, silver or gold, also plate or bullion, into Scotland, above the value of forty shillings at one time.

XI. The betraying (in time of war) the counsel of any other Englishman tending to the annoyance of Scotland, in malice to the party, and for his own private advantage.

XII. The forging the coin of the realm.

XIII. The making appointment and holding communication with Scotchmen, or intermarrying with a Scottish woman, without licence of the wardens, and the raising of no fray against them as in duty bound.

XIV. The receiving of Scottish pilgrims with their property without licence of the wardens.

XV. The failing to keep the watches appointed for the defence of the country.

XVI. The neglecting to raise in arms to the fray, or alarm raised by the wardens or watches upon the approach of public danger.

XVII. The receiving or harbouring Scottish fugitives exiled from their own country for misdemeanours.

XVIII. The having falsely and unjustly _fould_ (_i.e._, found true and relevant) the bill of any Scotchman against an Englishman, or having borne false witness on such matters.

XIX. The having interrupted or stopped any Englishman pursuing for recovering of his stolen goods.

XX. The dismissing any Scottish offender taken red-hand (_i.e._, in the manner) without special license of the Lord-warden.

XXI. The paying of black-mail, or protection money, whether to English or Scottish man."[34]

The significance of these provisions cannot be mistaken. They reveal the anxiety of the English government to prevent, as far as possible, all intercourse with Scottish Borderers. The offences referred to in the foregoing list amounted to what is known as March Treason. Those who were accused of this crime were tried by a jury, and if found guilty were put to death without ceremony. "This was a very ordinary consummation," says Sir Walter Scott, "if we can believe a story told of Lord William Howard of Naworth. While busied deeply with his studies, he was suddenly disturbed by an officer who came to ask his commands concerning the disposal of several moss-troopers who had just been made prisoners.

Displeased at the interruption, the warden answered heedlessly and angerly, 'hang them in the devil's name;' but when he laid aside his book, his surprise was not little, and his regret considerable, to find that his orders had been literally fulfilled."[35]

The duties devolving upon the Scottish wardens were not, in all respects, the same as those which the English wardens were called upon to discharge.

This was due to some extent to the fact that the jurisdiction of the Scottish wardens was circ.u.mscribed by the hereditary rights and privileges of the great families who, within their own territories, exercised supreme control. In addition to this, the hereditary judges had the power of repledging; that is to say, they could reclaim any accused person from courts of co-ordinate jurisdiction, and try him by their feudal authority.

But while the power of the wardens was thus considerably circ.u.mscribed, they never hesitated, when they had the chance, to mete out summary punishment to all offenders. If a thief was caught red-handed, or if the evidence against him appeared at all conclusive, he was at once, and without ceremony, strung up on the nearest tree, or thrown into the "murder" pit. Indeed, the execution not unfrequently preceded the trial--a circ.u.mstance which seems to have given rise to the well-know proverb about "Jeddart Justice." On both sides of the Border, the same haste to get rid of offenders was a noted feature of the times. This is evident from the well-known English proverb which runs thus--

"I oft have heard of Lydford law, Where in the morn men hang and draw, And sit in judgment after."

The sitting in judgment, either before or after, was a formality that might often have been dispensed with, as the evidence submitted was seldom carefully sifted, or weighed. To be suspected, or accused, was regarded as almost tantamount to a plea of guilty. Such a method as this would hardly pa.s.s muster in our modern and more finical age; still it is probable that substantial justice was usually done. If those who were condemned were not always guilty of the particular crimes laid to their charge, their general record was sufficiently bad to warrant their being thus summarily dealt with.

There was, moreover, a practical difficulty in the way of minute investigation being made into each individual case. The number of those accused of various offences under the Border laws was often so great as to render an investigation of this kind all but impossible. There were few places of strength where prisoners could be retained in order to await their trial, and so it became necessary to deal with them as expeditiously as possible. "The Borderers," it has been said, "were accustomed to part with life with as little form as civilized men change their garments."

The mode of punishment was either by hanging or drowning. "Drowning," says Sir Walter Scott, "is a very old mode of punishment in Scotland, and in Galloway there were pits of great depth appropriated to that punishment still called murder-holes, out of which human bones have occasionally been taken in great quant.i.ties. This points out the proper interpretation of the right of 'pit and gallows' (in law Latin, _fossa et furca_), which has, less probably, been supposed the right of imprisoning in the pit or dungeon, and that of hanging. But the meanest baron possessed the right of imprisonment. The real meaning is, the right of inflicting death either by hanging or drowning."[36]

But the warden had other duties to discharge of a still more important nature than those already described. In time of war he was captain-general within his own wardenry, and was invested with the power of calling musters of all the able-bodied men between the age of sixteen and sixty.

These men were suitably armed and mounted according to their rank and condition, and were expected to be ready either to defend their territory against invasion, or, if necessary, to invade the enemy's country. The ancient rights and customs which the warden was expected to observe on such occasion have been thus summarised:--

"I. All intercourse with the enemy was prohibited.

II. Any one leaving the company during the time of the expedition was liable to be punished as a traitor.

III. It was appointed that all should alight and fight on foot, except those commanded by the general to act as cavalry.

IV. No man was to disturb those appointed to array the host.

V. If a soldier followed the chase on a horse belonging to his comrade, the owner of the horse enjoyed half the booty; and if he fled upon such a horse, it was to be delivered to the sheriff as a waif on his return home, under pain of treason.

VI. He that left the host after victory, though for the purpose of securing his prisoner, lost his ransom.

VII. Any one seizing his comrade's prisoner was obliged to find security in the hands of the warden-serjeant. Disputed prisoners were to be placed in the hands of the warden, and the party found ultimately wrong to be amerced in a fine of ten pounds.

VIII. Relates to the evidence in case of such dispute. He who could bring his own countrymen in evidence, of whatsoever quality, was preferred as the true captor; failing this mode of proof, recourse was had to the prisoner's oath.

IX. If the prisoner was of such a rank as to lead a hundred men, he was either to be dismissed upon security or ransomed, for the s.p.a.ce of fifteen days, without leave of the warden.

X. He who dismounted a prisoner was ent.i.tled to half of his ransom.

XI. Whosoever detected a traitor was ent.i.tled to a reward of one hundred shillings; whoever aided his escape, suffered the pain of death.

XII. Relates to the firing of beacons in Scotland: the stewards of Annandale and Kirkcudbright were liable in the fine of one merk for each default in the matter.

XIII. He who did not join the army of the country upon the signal of the beacon lights, or who left it during the English invasion without lawful excuse, his goods were forfeited, and his person placed at the warden's will.

XIV. In the case of any Englishman being taken in Scotland, he was not suffered to depart under any safe conduct save that of the King or warden; and a similar protection was necessary to enable him to return and treat of his ransom.

XV. Any Scottishman dismissing his prisoner, when a host was collected either to enter England or defend against invasion, was punished as a traitor.

XVI. In the part.i.tion of spoil, two portions were allowed to each bowman.

XVII. Whoever deserted his commander and comrades, and abode not in the field to the uttermost, his goods were forfeited, and his person liable to punishment as a traitor.

XVIII. Whoever bereft his comrade of horse, spoil, or prisoner, was liable in the pains of treason, if he did not make rest.i.tution after the right of property became known to him."[37]

These military regulations, at once minute and comprehensive, were drawn up by William, Earl of Douglas, with the a.s.sistance of some of the most experienced Marchmen; and, with the necessary alterations, were adopted by the English--thus indicating that they were thoroughly in harmony with the military spirit of the age on both sides of the Border.

VI.

THE DAY OF TRUCE.

"Our wardens they affixed the day, And as they promised so they met.

Alas! that day I'll ne'er forget!"

OLD BALLAD.

The arrangements made for dealing with offences against Border law, though of a primitive, were by no means of an ineffective, character. All things considered, they were perhaps as good as could have been devised in the circ.u.mstances. During the period when Border reiving was most rampant, though the population was by no means spa.r.s.e, little or no provision had been made for detaining prisoners in custody. The jails were few and far between, and such as were available were generally in such an insecure and ruinous state that, unless strongly guarded, they were almost useless for the purpose for which they existed. But imprisonment had other inconveniences which militated against its being resorted to with much frequency. Prisoners had to be provided for when under "lock and key,"

and, as provisions were difficult to procure, it was generally found more advantageous to leave those who had broken the laws to "fend" for themselves until such times as they were wanted. As might be expected in such circ.u.mstances, the accused person not unfrequently took "leg-bail,"

and pa.s.sed into another district, or, perhaps, crossed the Border, and sought refuge among the enemies of his country and his clan. This expedient, in those lawless and disordered times, was no doubt occasionally successful--for the nonce--but sooner or later the evil-doer was either betrayed by the enemy, or, resuming his old habits--which was almost a necessity--brought himself under the special notice of the warden of the district to which he had fled. He thus placed himself, as it were, between two fires, and made further immunity from prosecution practically impossible. When it came to the knowledge of the warden that an accused person had pa.s.sed into another wardenry, he at once certified the warden opposite, requiring him to apprehend and deliver the prisoner with all possible speed; and he was bound, after receiving this notice, to make proclamation throughout his wardenry "by the s.p.a.ce of six days after of the said fugitive," and also to certify the other two wardens of the realm "to proclaim the fugitive throughout all the bounds of their wardenries, so that none could proclaim ignorance, or excuse themselves when charged with the wilful receipt of the aforesaid fugitive so proclaimed."