The Scottish wardens, though invested with the most arbitrary powers,

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.

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