carefully drawn out, and, as a general rule, strictly observed. The
English warden named six Scottish gentlemen to act on his side, and the
Scottish warden the same number of Englishmen to act as the English
assize. These men, who thus constituted the jury, were carefully chosen.
No murderer, traitor, fugitive, infamous person, or betrayer of one party
to another could bear office, or give evidence, but only good and lawful
men deserving of credit and unsuspected.
Each warden, in the presence of the opposite warden and the inhabitants of
both the Marches, "Swore by the High God that reigneth above all Kings and
Realms, and to whom all Christians owe obedience, that he shall (in the
name of God) do, exercise and use his office without respect of person,
Malice, Favour, or Affection, diligently or undelayedly, according to his
Vocation or Charge that he beareth under God and his Prince, and he shall
do justice upon all Complaints presented unto him, upon every Person
complained upon under this Rule. And that, when any complaint is referred
unto him, to swear, fyle, and deliver upon his Honour, he shall search,
enquire, and redress the same at his uttermost power: And that, if it
shall happen in so doing to quit and absolve the persons complained upon
as Clean and Innocent: Yet if he shall any ways get sure Knowledge of the
very Offender, he shall declare him foul of the Offence, and make lawful
Redress and Delivery thereof, albeit the very Offender be not named in the
Complaint: And this Oath of the Wardens not only to be made at the first
Meeting hereafter to ensue, but also to be made every Year once solemnly,
as aforesaid, at the first Meeting after _Mid-summer_, to put them in the
better Remembrance of their Duties, and to place the fear of God in their
Hearts."[39]
The following oath was also administered to the jury:--"Ye shall truly
enquire, and true deliverance make between the Queen's Majesty, and the
prisoners at the Bar, according to the evidence that shall be given in
this Court. As God keep you and Holydome."[40]
These formalities having been duly observed, the trial of the prisoners
was then proceeded with. Bills were presented on the one side, and on the
other, setting forth with considerable fulness of detail the nature and
extent of the damages that had been sustained. The prisoners against whom
these indictments had been made were then called to answer the charges
preferred against them.
There were at least three ways in which these cases could be tried. In the
first place, the bill might be acquitted _on the honour of the warden_.
But should it afterwards be found that the warden in acquitting the bill
had proceeded on imperfect information, and had acquitted upon his honour
a bill that was in reality "foul," then the complainant was at liberty to
prosecute a new bill, and demand that justice should be done. The case was
then tried by a jury who "fyled" or "cleared" the bill at their
discretion. When a bill was "fyled," that is to say declared true, the
word "foul" was written on the margin, and when it was "cleared," the word
"clear" was inserted.
But further, bills might be _tried by inquest or assize_, which was the
method most frequently adopted, such cases being decided by the juries on
their own knowledge, and on the evidence sworn to in open court.
The third way of dealing with bills was by a "_Vower_." The significance
of this method is fully explained by Sir Robert Bowes, who says:--"The
inquest or assise of Scotlande, notwithstanding their othe, would in no
wyse fynde a bill to be true, nor fyll any Scottis man upon an
Englishman's complaynte unles the Englishman could fynde an inhabitant of
Scotlande, that would avow openly to the inquest, or secretlye to the
warden, or some of the inquest, that the complaynte was treue, and the
partie complayned upon culpable thereof, otherwise althoughe the matter
was ever so notoryously knowne by the Englishman, their evydence would not
serve to secure a conviction."
It frequently happened, on the occasion of these meetings, that "bogus"
bills were presented, a custom which gave the officials a great deal of
unnecessary labour. The commissioners, in referring to this reprehensible
practice, remark that "it hath been perceived of late that, since the
order was begun by the Warden to speire, fyle, and deliver, upon their
Honour, that some ungodly Persons have made complaint, and billed for
Goods lost where none was taken from them, and so troubled the Wardens,
causing them to speire and search for the Thing that was never done."[41]
It was therefore statute and ordained that all persons guilty of this
offence should be delivered to the opposite warden to be punished,
imprisoned, and fined at the discretion of the same warden whom he had
troubled.
Another formidable difficulty with which the wardens had to contend on
these occasions, was in estimating the value of the goods for which
redress was claimed. In making up a bill the complainant was strongly
tempted to put an absurd value on the gear, or cattle, which had been
stolen from him. Had he always got as much as he claimed he would soon
have been enormously enriched by the loss of his property! The
commissioners were therefore under the necessity of drawing out a scale of
charges for the guidance of the warden courts. The following are the
prices fixed by this tribunal:--"Every Ox, above Four Year old, Fourty
Shillings Sterling; every Cow, above Four Year old, Thirty Shillings
Sterling; and every Young Cow, above Two Years old, Twenty Shillings
Sterling; every other Beast, under Two Years old, Ten Shillings Sterling;
every old Sheep, Six Shillings Sterling; and every Sheephogge, Three
Shillings Sterling; every old Swine, above One Year old, Six Shillings
Sterling; every young Swine, Two Shillings Sterling; every Goat, above One
Year old, Five Shillings Sterling; every young Goat, Two Shillings
Sterling; and every Double Toope to be valued after the rate of the
Single."[42]
These prices, judged by the standard of the present day, seem absurdly
low, but they may be accepted as representing the average rate of prices
obtainable, three hundred years ago, for the various classes of stock
mentioned.
It was the duty of the wardens to have the offenders in custody, against
whom bills had been presented, in readiness to answer, and in case the
bills were "fouled" he was bound to deliver them up to the opposite
warden, by whom they were imprisoned until they had paid a _single and two
doubles_, that is to say, treble the value of the estimated goods in the
bill. To produce these men was generally the most difficult part of the
warden's duty. He could not keep them in confinement until the day of
truce, for, independently they were sometimes persons of power and rank,
their numbers were too great to be retained in custody. The wardens,
therefore, usually took bonds from the Chief, kinsmen, or allies of the
accused party, binding him or them to enter him prisoner within the iron
gate of the warden's castle, or else to make him forthcoming when called
for. He against whom a bill was twice fouled, was liable to the penalty of
death. If the offender endeavoured to rescue himself after being lawfully
delivered over to the opposite warden, he was liable to the punishment of
death, or otherwise at the warden's pleasure, as being guilty of a breach
of the assurance.[43]
It would seem to have been customary on a day of truce to enumerate the
various bills "fouled" on either side, and then to strike a balance,
showing on which side most depredations had been committed. It
occasionally happened that the claims of both parties were so numerous
and complicated, the same person frequently appearing both as plaintiff
and defendant, that it was deemed prudent to draw a veil over the whole
proceedings, and give satisfaction to neither party, thus wiping out, as
it were, with a stroke of the pen, and without further parleying, all the
claims which had been lodged. This mode of procedure, arbitrary though it
may appear, did not, as a rule, result in serious injustice being done to
either party.
The offences dealt with were of a varied character. Reiving was only one
of the many ways in which the Borderers sought to enrich themselves at the
expense of their neighbours in the opposite March. They had an eye to the
land as well as to the cattle. It was customary for them not only to
pasture their stock on the enemy's territory, but to sow corn, cut down
wood, and go hunting and hawking for pleasure as well as profit. Sir
Robert Cary, one of the most vigorous of the English wardens, was
determined that hunting without leave should not be carried on in his
wardenry. He wrote to the laird of Ferniherst, the warden opposite,
explaining his views, but, "notwithstanding this letter," he says, "within
a month after they came and hunted as they used to do without leave, and
cut down wood and carried it away. I wrote to the warden, and told him I
would not suffer one other affront, but if they came again without leave
they would dearly aby[44] it. For all this they would not be warned; but
towards the end of the summer they came again to their wonted sports. I
sent my two deputies with all speed they could make, and they took along
with them such gentlemen as were in their way, with my forty horse, and
about one of the clock they came to them, and set upon them; some hurt was
done, but I gave special order they should do as little hurt, and shed as
little blood, as they possibly could. They observed my command, only they
broke all their carts, and took a dozen of the principal gentlemen that
were there, and brought them to me to Witherington, where I lay. I made
them welcome, and gave them the best entertainment I could. They lay in
the castle two or three days, and so I sent them home--they assuring me
that they would never again hunt without leave, which they did truly
perform all the time."[45]
This firm, but kindly method, was entirely satisfactory; and, had the
Borders only been blessed with a succession of Carys in the various
wardenries, the probability is that Border reiving would never have
attained such portentous dimensions.
But despite the masterful management of men like Cary, such questions as
those we have mentioned continued to occupy the time and attention of the
warden courts. The freebooters on the Border never considered too closely
the minute shades of difference between _meum_ and _tuum_, and were
difficult to persuade that depasturing, or cutting wood in a neighbour's
plantation, was a matter of any real importance. They were at all times
disposed to put a liberal construction on the words--"The earth is the
Lord's and the fulness thereof." Their somewhat loose interpretation of
this ancient Hebrew maxim occasioned them no end of vexation and trouble.
But the settlement of Border affairs on the day of truce did not interfere
with the ancient custom which entitled the person who was robbed to follow
his goods on what was called the _hot-trod_, and mete out summary
punishment to the offender--provided he could overtake him. The warden
also was enjoined, in the Act of 1563, to pursue and chase in hot-trod,
unto such time or place as the fugitives or offender be apprehended, to
bring him again within his own jurisdiction to be punished for the
offence, "as appertaineth;" "and that without let, trouble, or impediment
to be made or done to him by any of the inhabitants of that realm wherein
he pursueth." And if any person should make resistance to the said warden
in the foresaid pursuit he was to be billed for, and delivered to the
warden. In the following of the said chase, in the manner aforesaid, it
was thought convenient, and ordained, that the pursuer shall, at the first
town he cometh by of the opposite realm, or the first person he meeteth
with, give knowledge of the occasion of his chase, and require him to go
with him in the said pursuit. If the offender was caught red-handed he was
executed; but if the desire for gain was stronger than the thirst for
blood, then he was held at ransom. The prey was followed with hound and
horn, hue and cry, the pursuers carrying on the point of their spears a
lighted piece of turf.
The business of the warden courts was conducted with despatch. When all
the bills had been either "fouled" or "cleared," those who had been found
guilty of "March Treason" were brought up for sentence. The lord warden
called on him whose office it was to see the prisoners suffer, and thus
addressed him:--"I command you in the Queen's Majesty's name that ye see
execution done upon these prisoners, according to the Law of the Marches,
at your peril." Then addressing the prisoners he said:--"Ye that are
adjudged by the Law of the Realm to die, remember that ye have but a short
time to live in this world; therefore earnestly call to God, with penitent
hearts, for mercy and forgiveness of your sinful lives; repent ye have
broken God's commandments, and be sorry therefor, and for that ye did not
fear the breach and dangers of the Law, therefore your bodies must suffer
the pain of death, provided to satisfy the reward of your Fact in this
world; yet the salvation of your soul's health for the world to come,
stands in the great mercy of Almighty God: Wherefore do ye earnestly
repent and ask mercy for your sins, now when ye are living, put your Trust
to be saved by the merits of Christ's passion; and think in your hearts if
ye were able to recompence them ye have offended, ye would do it; and
where you are not able, ask Forgiveness. Have such faith in God's Mercy as
Dismas the Thief and Man-Murderer had that hang at Christ's Right hand,
when he suffered his Passion for the Redemption of Mankind: Whose Faith
was so great he should be saved, his Sins were remitted, tho' he had but
short time of Repentance, and he enjoyed Heaven. Therefore despair not in
God's Mercy, though your sins be great, for God's Mercy exceedeth all his
Works. Set apart all Vanities of this World, and comfort you in Heavenly
things; and doubt not but, if ye so do, ye shall inherit Everlasting Joy
in the Kingdom of Heaven. And thus I commit you to the Mercy of God,
wishing your Deaths may be an Example to all Parents to bring up their
Children in the Fear of God, and Obedience of the Laws of this Realm."[46]
With these suitable admonitions ringing in their ears, the condemned
prisoners were led forth to execution.
The business of the court having been finished, the wardens retired after
taking a courteous leave of each other.
These meetings, attended as they were by a large number of people, who
came either on business or pleasure, were frequently broken up by sudden
outbursts of tumult and disorder. _Baughling_, or brawling, was a common
occurrence, and loud words and angry looks naturally led to more serious
encounters. We have already noticed the incident of the Reidswire, but
this was by no means an isolated case. In the month of July, 1585, at a
day of truce between Sir John Foster and Ker of Ferniherst, Lord Russell,
a young man of great promise, and of the most amiable disposition, was
suddenly shot dead by an unknown hand. This lamentable incident gave rise
to much bitterness of feeling on both sides of the Border. Foster wrote to
Walsingham, saying, that he and the opposite warden had met for the
redress of attempts committed on both sides, Russell being present to
attend to particular causes of his own, "where it chanced a sudden
accident and tumult to arise among the rascals of Scotland and England
about a little pyckery among themselves, and we meaning no harm did sit
the most of the day calling bills, and my Lord Russell among us. The said
Lord Russell rose and went aside from us, with his own men, and there
being in talk with a gentleman, was suddenly shot with a gun and slain in
the midst of his own men, to the great discomfort of me and his poor
friends in this country, and never a man either of England or Scotland but
he. Alas! that the mischievous chance should happen for him to be killed
with a shot, and none but him, which is the greatest discomfort that ever
came upon me."[47]
No hint is here given of any suspicion that Ker of Ferniherst was
implicated in the death of this young man. Hence we are surprised to find
that, on the day after this letter was written, Sir John Foster drew up a
statement in which he gives an entirely different complexion to the
incident. He asserts that it was not an accident. "Had it been an
accident," he says, "or sudden breaking by rascals, as there was no such
matter, the gentlemen of Scotland with their drums, fife, shot, and such
as carried the 'ensigne' and 'penseller,' would have tarried with the
warden; so that it appeareth plainly it was a 'pretended matter'
beforehand, for the wardens sitting quietly calling their bills, the
warden of England thinking no harm, the party of Scotland seeing the time
serve for their 'former desire,' suddenly broke, striking up an alarm with
sound of drum and fife, and gave the charge upon us--in which charge the
Lord Russell was cruelly slain with shot, and so divers gentlemen of
Scotland with their footmen and horsemen and whole force, followed and
maintained their chase four miles within the Realm of England, and took
sundry prisoners and horses, and carried them into Scotland, which they
deny to deliver again."[48]
This statement contradicts, in almost every particular, the asseverations
deliberately made in the letter written the day before, and shows that
even a gentleman in Sir John Foster's high position, with a deservedly
great reputation for fair dealing, was capable, when occasion demanded, of
twisting facts, or even inventing them, to suit his own ends, or the
interest of the government he represented. It has been suggested that the
English secretary, knowing that Ferniherst was an intimate friend of
Arran, saw that by laying the blame of Lord Russell's death on the
shoulders of the former, he might thereby procure the disgrace of this
hated minister. Be this as it may, such conflicting assertions, made by
the same person almost at the same time, should lead us to accept with a
modified confidence other statements of a similar kind, as the spirit of
party is no friend to the love of truth.
But despite the drawbacks and dangers attaching to such gatherings for the
settlement of Border affairs, the day of truce was an institution of great
public utility. It is difficult to see how, apart from such an
arrangement, even the semblance of civilized life could have been
maintained. The Borders really constituted an _imperium in imperio_, and
the wardens, when presiding over their monthly convention, were to all
intents and purposes absolute rulers within their own prescribed domain.
It was generally found that when warden courts, or days of truce, were
regularly held, good rule and order, at least judged by the ordinary
Border standard, were well maintained throughout the entire district.
VII.
THE DEADLY FEUD.
"At the sacred font, the priest
Through ages left the master hand unblest
To urge with keener aim the blood incrusted spear."
LEYDEN.
The difficulties with which the Borderers had to contend were of a varied
character. They had to be constantly on the watch against the aggressions
and incursions of their enemies on the opposite Marches. But it frequently
happened that their most dangerous and inveterate foes were to be found
amongst their own countrymen. This was the case more especially when
blood-feuds arose, setting family against family, and clan against clan.
An interesting, if not very luminous, account of the origin of the "Feud"
is given by Burghley in a report submitted by him to the English
government, in which he deals with what he calls the "Decays of the
Borders." He says:--"Deadly Foed, the word of enmytie on the Borders,
implacable without the blood and whole family destroyed, whose etymologie
I know not where better to fetch than from Spiegelius in his _Lexicon
Juris, in Verbo_ 'feydum:' he saith it is an old Teutch word whereof is
derived by Hermanus Nivoranus (?) _faydosum Hostis publicus_; 'foed'
_enim, Bellum significat_." He further points out that the Scottish
wardens, being native Borderers, are "extraordinarilye adicted to
parcialities, favour of their blood, tenantes and followers," and
consequently he holds they should be disqualified for office.[49]
The evils resulting from these deadly-feuds would have been comparatively
trifling had it been possible to limit the consequences to the persons
more immediately concerned. Owing, however, to the system of clanship
which prevailed on the Borders, the whole sept became involved in the
feud. "If one of the clan," says Sir Walter Scott, "chanced either to slay
a man, or commit any similar aggression, the chief was expected to defend
him by all means, legal or illegal. The most obvious and pacific was to
pay such fine or _amende_, or assythement, as it was called, as might
pacify the surviving relations, or make up the feud. This practice of
receiving an atonement for slaughter seems also to have been part of the
ancient Celtic usages; for it occurs in the Welch laws of Howell Dha, and
was the very foundation of the Irish Brehon customs. The vestiges of it
may be found in the common law of Scotland to this day. But poor as we
have described the Border chief, and fierce as he certainly was by
education and office, it was not often that he was either able or disposed
to settle the quarrels of his clansmen in a manner so amicable and
expensive. War was then resorted to; and it was the duty of the chief and
clan who had sustained the injury to seek revenge by every means in their
power, not only against the party who had given the offence, but, in the
phrase of the time and country, against all his name, kindred,
maintainers, and upholders. On the other hand, the chief and clan to whom
the individual belonged who had done the offence, were equally bound in
honour, by every means in their power, to protect their clansman, and to
retaliate whatever injury the opposite party might inflict in their thirst
of vengeance. When two clans were involved in this species of private
warfare, which was usually carried on with the most ferocious animosity on
both sides, they were said to be at deadly feud, and the custom is justly
termed by the Scottish parliament most heathenish and barbarous.... In
these deadly feuds, the chiefs of clans made war, or truce, or final peace
with each other, with as much formality, and as little sincerity, as
actual monarchs."[50]