found it politic to enter into bonds of alliance with the neighbouring
Chiefs, in order not only to increase their influence and power within
their own wardenries, but to add to their authority when called upon to
deal with questions of a more general nature. This fact reveals
unmistakably the weakness of the central government of the country at
this period, and indicates the important part which was played by the
nobility in the administration of the affairs of the nation.
Several of these "Bonds" have been preserved. Some of them are too lengthy
for quotation, but the following one--which is comparatively brief--may be
taken as a fair sample of the whole. It is subscribed by the Lairds of
Buccleuch, Hunthill, Bon-Jeddart, Greenhead, Cavers, and Redheugh, in
favour of Sir Thomas Ker of Fernihirst, and runs as follows:--"We
undersigned, inhabitants of the Middle March of this realm opposite
England, understanding how it has pleased the King's majesty our sovereign
lord to make and constitute Sir Thomas Ker of Fernihirst Knight his
Highness warden and justice over all the Middle March, and acknowledging
how far we are in duty bound to the service by our counsel and forces to
be employed in the assistance of his said warden in all things tending to
the good rule and quietness of the said Middle March, and setting forth of
his Highness authority against these traitors, rebels, and other
malefactors to their due punishment, and defence and safety of true men.
Therefore we be bound and obliged, and by the tenor hereof binds and
obliges us, and every one of us, that we should truly serve the King's
Majesty our sovereign lord, and obey and assist his said warden, in the
premiss, and shall concur with others in giving of our advice and
counsel, or with our forces in pursuit or defence of the said thieves,
traitors, rebels, and other malefactors disobedient to our sovereign
lord's authority, or disturbers of the public peace and quietness of the
realm, as we shall be charged or warned by open proclamations, missives,
bailies, or other the like accustomed forms as we will answer to his
Highness upon our obedience at our highest charge and peril, if we shall
be found remiss or negligent, we are content to be repute held and
esteemed as favourers and partakers with the said thieves, traitors,
rebels, and malefactors in their treasonable and wicked deeds, and to be
called, pursued, and punished therefor, according to these laws in example
of others."[31]
There can be no doubt that these "Bonds" were often contracted in good
faith; that is to say, those who subscribed them were honestly desirous to
fulfil, both in the spirit and letter, the obligations thus undertaken. It
is, however, worthy of remark that those who had thus sworn allegiance to
the warden had not infrequently ends of their own to serve, which
conflicted with their duty to the representatives of law and order.
Thieves were harboured, or at least allowed to remain unmolested, on the
estates, or within the jurisdiction, of those who had thus professedly
banded themselves together for their detection and punishment. The result
was that the subscribers to the "Bond" were occasionally reported to the
government for their delinquencies, and prosecuted and punished for their
breach of faith. Thus we find that on one occasion Walter Ker of Cessford,
James Douglas of Cavers, George Rutherford of Hunthill, and Ker of
Dolphingstone were convicted of art and part of the favour and assistance
afforded to Robert Rutherford, called Cokburn, and John Rutherford, called
Jok of the Green, and their accomplices, rebels and at the horn;
permitting them to pass within their bounds continually for divers years
past; for not using their utmost endeavour to hinder them from committing
sundry slaughters, stouth-reifs, thefts and oppressions on the King's poor
lieges, nor ejecting the said rebels, their wives and their children, from
their bounds and bailiaries, but knowingly suffering them to pass within
their limits and to remain therein beyond the space of twelve hours, to
commit sundry crimes during the time of their passing and reset within the
shire in which they dwelt, thereby breaking, transgressing, and violating
their obligation and "Bond" to the King, and incurring the pains contained
in the said "Bond."[32]
It is remarkable, considering the reputation enjoyed by the Borderers for
being true to their word, that such occurrences should have to be so
frequently complained of.
Unfortunately, the wardens were as little animated by a high sense of
honour as those who had solemnly pledged themselves to support them in the
discharge of the duties of their office. They frequently, and in some
cases almost systematically, exercised the powers conferred on them, not
in trying to preserve the public peace, but in wreaking vengeance on their
enemies. A striking instance of this is to be seen in the conflict which
was so long waged between the Johnstones and the Maxwells, and which
produced endless misery and mischief throughout a wide area.
All things considered, the wardens were well remunerated for such services
as they were able to render. The usual fee appears to have been L100 per
annum. In 1527 the Earl of Angus had L100 for the East and a similar sum
for the Middle March. In 1553 the Warden's fee was L500, but he had to
surrender the one half of the "escheats" to the authorities. When William
Ker of Cessford was appointed warden of the Middle March and keeper of
Liddesdale, his salary for the former office was L100, and for the latter
L500. But these sums represented but a small part of the actual income.
They were also allowed forage and provision for their retinue, which
consisted of a guard of horsemen. They had in addition a portion of the
"unlaws" or fines imposed in the warden courts, and at certain periods
these must have amounted to a large sum. The law ordained that "the
escheat of all thieves and trespassers that are convict of their movable
goods, ought and should pertain to the warden for his travail and labours,
to be used and disposed by him at his pleasure in time coming. The warden
ought and should take and apprehend all and sundry our sovereign Lord's
lieges turning and carrying nolt, sheep, horses, or victuals furth of this
realm into England, and bring their persons to the King's justice, to be
punished therefor; and all their goods may he escheat: the one half
thereof to be applied to the King's use, and the other half to the warden
for his pains." In addition to this, the wardens had a large share of the
plunder of the various forays upon the English Border, which they either
conducted in person, or winked at when undertaken by their retainers or
dependants. In the "Border Papers" we are informed that on Sunday, the
17th April, 1597, the Lord Buccleuch, Keeper of Liddesdale, accompanied by
twenty horse and a hundred foot, burned at noonday three onsets and
dwelling-houses, barns, stables, oxhouses, &c., to the number of twenty,
in the head of Tyne, cruelly burning in their houses seven innocent men,
and "murdered with the sword" fourteen which had been in Scotland, and
brought away the booty, the head officer with trumpet being there in
person.[33] This was a frequent occurrence, especially with Buccleuch, who
was never quite happy when not plundering and oppressing "the auld enemy."
From a pecuniary point of view, not to speak of other advantages, the
office of warden was a highly desirable one, and was consequently eagerly
sought after by the Border Chiefs.
The duties pertaining to this office may be described as of a twofold
nature--the maintenance of law and order, and the protection of the
districts against the encroachments and inroads of the enemy. "In the
first capacity," as has been remarked, "besides their power of control and
ministerial administration, both as head stewards of all the crown
tenements and manors within their jurisdiction, and as intromitting with
all fines and penalties, their judicial authority was very extensive. They
held courts for punishment of high treason and felony, which the English
Border laws classed under the following heads:--
I. The aiding and abetting of any Scottishman, by communing, appointment,
or otherwise, to rob, burn, or steal, within the realm of England.
II. The accompanying personally, of any Scottishman, while perpetrating
any such offences.
III. The harbouring, concealing, or affording guidance and protection to
him after the fact.
IV. The supplying Scottishmen with arms and artillery, as jacks, splents,
brigantines, coats of plate, bills, halberds, battle-axes, bows and
arrows, spears, darts, guns, as serpentines, half-haggs, harquibusses,
currys, cullivers, hand-guns, or daggers, without special licence of the
Lord-warden.
V. The selling of bread and corn of any kind, or of dressed leather, iron,
or other appurtenances belonging to armour, without special licence.
VI. The selling of horses, mares, nags, or geldings to Scottish men,
without licence as aforesaid.
VII. The breach of truce, by killing or assaulting subjects and liege-men
of Scotland.
VIII. The assaulting of any Scottishman having a regular pass 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 circumscribed 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 circumscribed,
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
circumstance 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
pass 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 quantities. 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 space of fifteen
days, without leave of the warden.
X. He who dismounted a prisoner was entitled to half of his ransom.
XI. Whosoever detected a traitor was entitled 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 partition 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 restitution 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 assistance 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
circumstances. During the period when Border reiving was most rampant,
though the population was by no means sparse, 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 circumstances, the accused person not unfrequently took "leg-bail,"
and passed 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 passed 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 space 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."
The duty thus laid upon the wardens of searching for fugitives was one
which was generally undertaken _con amore_, not merely on account of the
fact that it was naturally agreeable to these officers to detect and
punish crime, but also because in such circumstances it was greatly to
their advantage to do so. A law was passed ordaining that when a fugitive
entered with his goods into the opposite realm, the warden who captured
him, and handed him over to be punished for his offence, _was entitled to
retain the goods for his labour_. Should he not succeed in apprehending
the fugitive, then the goods had to be returned to the warden of the realm
from which they came. This was a wise arrangement, and on the whole proved
fairly effective.
As offences against the law were numerous and frequent, it was statute and
ordained that a "Day of Truce" should be held every month, or oftener,
when the wardens of the Marches opposite each other should meet for the
discussion and adjustment of their respective claims, and the punishment
of evil-doers. The date and place of this meeting was made known to the
inhabitants of the Marches by proclamation being made in all the market
towns. Notice was also sent to the lords, knights, esquires, and
gentlemen, commanding them, along with a sufficient number of their
tenants and servants, well mounted and fully armed, to repair the night
before and attend upon the warden at the day of truce.[38]
Early on the morning of the following day this imposing cavalcade might be
seen wending its way towards the place of rendezvous. This was generally
some convenient spot near the Border, most frequently on the Scottish
side. When the wardens and their friends came within hailing distance of
each other, a halt was called, and the English warden sent forward four or
five gentlemen of good repute to demand from the Scottish warden "that
assurance might be kept" until the sunrise of the following day. According
to a statement made on the authority of Sir Robert Bowes, the reason of
this particular form of procedure was "because the Scots did always send
their ambassadors first into England to seek for peace after a war.
Therefore both the particular days of truce are usually kept either at
places even on the confines of the Marches, or else at places within the
realm of Scotland, and also the English warden and other officers were
always used to send first for the assurance as aforesaid."
When assurance had been given by the Scottish warden, a number of Scottish
gentlemen passed over to the other side to demand from the English warden
assurance on his part. These preliminary precautions having been duly
observed, the two parties met, and the business which had brought them
together was at once entered upon. The wardens did not always attend these
meetings in person, their duties occasionally necessitating their
remaining at home, but when unable to be present themselves they were
represented by deputies--men of influence and good social position--who
were thoroughly qualified to deal with any important question that might
arise.