each other, and the redressing of approved wrongs, which wrongs were
usually done in raids or forays. Of these I must now give some account.
The smaller Border chieftain dwelt in a peel tower, stuck on the edge
of a rock or at the break of a torrent. It was a rude structure with
a projecting battlement. A stair or ladder even held its two stories
together, and about it lay a barnkin--a space of some sixty feet
encompassed by a wall; the laird’s followers dwelling in huts hard
by. For small parties the tower was self-sufficient in defence, and
if it lay in the way of a hostile army, the laird was duly warned
by scouts or beacon fires, and withdrew to some fastness of rock or
marsh, carrying his few valuables, driving his live stock before him,
leaving the foeman nothing to burn and nothing to take away. With his
followers he lived on milk, meat, and barley, together with the spoils
of the forest and stream. The marchmen are reported temperate--no
doubt from necessity. Their kine, recruited by forays, were herded in
a secluded part of the glen, and when the herd waxed small, and the
laird was tired of hunting, and his women lusted after new ornament,
and old wounds were healed, and the retainers were growing rusty, then
it was time for a raid. Was the laird still inactive? In struck his
lady’s sharper wit, and the story goes that Wat Scott of Harden was
ever and anon served with a dish which, being uncovered, revealed a
pair of _polished_ spurs. Thus his wife, Mary Scott, the “Flower of
Yarrow”--a very practical person, despite her romantic name--urged him
to profitable rapine. Well: his riders were bidden to a trysting-place;
and hither, armed in jacks (which are leathern jerkins plated with
iron) and mounted on small but active and hardy horses, they repaired
at evenfall. The laird and some superior henchmen wore also sleeves
of mail and steel bonnets; all had long lances, swords, axes, and in
later times such rude firearms--serpentines, half-haggs, harquebusses,
currys, cullivers, and hand-guns are mentioned--as were to be had.
In the mirk night the reivers crossed the Border; and to do this
unseen was no easy matter. The whole line from Berwick to Carlisle was
patrolled by setters and searchers, watchers and overseers, having
sleuth-hounds to track the invader; also, many folk held lands by the
tenure of cornage, and by blowing horns must warn the land of coming
raids. Where the frontier line was a river the fords were carefully
guarded; those held unnecessary were staked up; narrow passes were
blocked in divers ways, so that chief element in Border craft was the
knowledge of paths and passes through moorland and moss, and of nooks
and coigns of security deep in the mountain glens.
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 (brindled) 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.
But if all failed, the _Leges Marchiarum_ had still elaborate
provisions to meet his case. He had a shrewd guess who were his
assailants. The more noted moss-troopers were “kenspeckle folk.”
The very fact that so many had the same surname caused them to be
distinguished by what were called “to-names,” based on some physical
or moral characteristic, which even to-day photographs the man for us.
Such were Eddie Great-legs, Jock Half-lugs, Red-neb Hob, Little Jock
Elliott, Wynkyng Wyll, Wry-crag, Ill Wild Will, Evil Willie, David
the Leddy, Hob the King; or some event in a man’s history provided
a “to-name.” Ill Drooned Geordy, you fancy, had barely escaped a
righteous doom, and Archie Fire-the-Braes was sure a swashbuckler of
the first magnitude. Others derived from their father’s name.
The Lairdis Jok
All with him takis.
Thus, Sir Thomas Maitland, who has preserved some of these appellations
in his _Complainte Aganis the Thievis of Liddisdail_, apparently the
only weapon he--though Scots Chancellor--could use against them.
Other names, the chroniclers affirm, are more expressive still; but
modern prudery forbids their recovery. They were good enough headmark,
whatever their quality; and a harried household had but to hear one
shouted in or after the harrying to know who the harriers were. The
slogan, or war-cry, of the clan would rap out in the excitement, and
there again he knew his men. The cross of St. Andrew showed them to be
Scots, the cross of St. George affirmed them English. A letter sewn
in a cap, a kerchief round the arm, were patent identification. The
chieftain’s banner was borne now and again, even in a daylight foray--a
mode affected by the more daring spirits.
Divining in some sort his spoiler, the aggrieved and plundered
sought legal redress. Now the Laws of the Marches, agreed on by royal
commissioners from the two kingdoms, regulated intercourse from early
times. Thus as early as 1249, eleven knights of Northumberland, and
as many from the Scots Border, drew up a rough code: for the recovery
of debts, the surrender of fugitive bondsmen, and the trial by combat
of weightier matters in dispute. All Scotsmen, save the king and the
bishops of St. Andrews and Dunkeld, accused of having committed a
crime in England, must fight their accuser at certain fixed places on
the Marches; and there were corresponding provisions when the accused
was an Englishman. What seems a form of the _judicium Dei_ appears in
another provision. An animal said to be stolen, being brought to the
Tweed or the Esk, where either formed the boundary, was driven into
the water. If the beast sank the defendant paid. If it swam to the
farther shore, the claimant had him as his own. If it scrambled back
to the bank whence it started, the accused might (perchance) retain
it with a clear conscience. But as to this event the record is silent;
and, indeed, the whole business lacks intelligibility. The combats,
however, were many, and were much denounced by the clergy, who had to
provide a champion, and were heavily mulcted if he lost. The priest
suffered no more than the people; but he could better voice his wrongs.
All such things were obviously adaptations of the trial by ordeal, or
by combat, and the treason duel of chivalry, to the rough life of the
Border. Again, the matter was settled, even in late times, by the oath
of the accused. The prisoner was sworn:--“By Heaven above you, Hell
beneath you, by your part of Paradise, by all that God made in six
days and seven nights, and by God Himself,” that he was innocent. In a
superstitious age this might have some effect; and there was ever the
fear of being branded as perjured. But it can have been used only when
there was no proof, or when the doubt was very grave: when the issue,
that is, seemed as the cutting of a knot, the loosing whereof passed
man’s wit.
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. [One famous fray (June 17, 1575) is
commemorated in _The Raid of the Reidswire_, a ballad setting forth
many features of a 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
evident purpose of this elaborate ritual was to keep North and South
from flying, on sight, at each other’s throats). The English Warden
now came to his Scots brother, whom he saluted and embraced; and the
business of the Day of Truce (or Diet, or Day Marche, or Warden Court,
as it was variously called) 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 (from the desperate mauls which mark that
exhilarating sport as practised along the Border line, one fancies
that the “auld riding bluid” still stirs in the veins of the players).
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 (yearly
renewed) in presence of the opposite Warden and the whole assemblage
to do justice, and he now officially “fyled” or “cleared the bill”
(as the technical phrase ran) by writing on it the words “foull (or
‘clear’), 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 (of course, a verdict of guilty); 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 (then no distant memory) 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 (_temp._ 1596) 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.
Well! Suppose the case too clear and the man too friendless, and the
jury “fyled” the bill. If the offence were capital, the prisoner was
kept in safe custody, and was hanged or beheaded as soon as possible.
But most affairs were not capital. Thus the Border Law forbad hunting
in the other kingdom without the express leave of the owner of the
soil. Just such an unlicensed hunting is the theme of _Chevy Chase_.
Thus:--
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 jury would seem to have tried cases in absence), 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
(are claims against insurance and railway companies always urged with
accuracy of detail?). 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
(a Day of Trace was too favourable an opportunity to be neglected) 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 (Assythement) 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.
(_Cf._ the parallel case of the clan-duel in the _Fair Maid of Perth_.)
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.
And now business and pleasure alike are ended, and the day (fraught
with anxiety to official minds) is waning fast. Proclamation is made
that the multitude may know the matters transacted. Then it is declared
that the Lord Wardens of England and Scotland, and Scotland and England
(what tender care for each other’s susceptibilities!) appoint the
next Day of Truce, which ought not to be more than forty days hence,
at such and such a place. Then, with solemn salutations and ponderous
interchange of courtesy, each party turns homeward. As noted, the Truce
lasted till the next sunrise. As the nations were at peace (else had
there been no meeting), this recognised the fact that the Borders
were always, more or less, in a state of trouble. Also it prevented
people from violently righting themselves forthwith. A curious case in
1596, where this condition was broken, gave rise to a Border foray of
the most exciting kind, commemorated in the famous ballad of _Kinmont
Willie_. A Day of Truce had been held on the Kershope Burn, and at its
conclusion Willie Armstrong of Kinmont, a noted Scots freebooter, rode
slowly off, with a few companions. Some taunt, or maybe the mere sight
of one who had done them so much wrong, was too much for the English
party, and Kinmont was speedily laid by the heels in Carlisle Castle.
Buccleuch was Keeper of Liddisdale. He had not been present at the Day
of Truce; but when they told him that Kinmont had been seized “between
the hours of night and day,” he expressed his anger in no uncertain
terms:
He has ta’en the table wi’ his hand,
He garr’d the red wine spring on hie.
* * * *
And have they ta’en him, Kinmont Willie,
Against the truce of Border tide?
And forgotten that the bauld Buccleuch
Is keeper here on the Scottish side?
Negociations failing to procure redress, Buccleuch determined to rescue
Kinmont himself. In the darkness of a stormy night he and his men stole
up to Carlisle, broke the citadel, rescued Kinmont, and carried him off
in safety, whilst the English lawyers were raising ingenious technical
justifications (you can read them at length in the collection of Border
Papers) of the capture. Those same papers show that the ballad gives
the main features of the rescue with surprising accuracy. But I cannot
linger over its cheerful numbers. The event might once have provoked
a war, but the shadow of the Union was already cast. James would do
nothing to spoil the splendid prize almost within his grasp, and
Elizabeth’s statesmen were not like to quarrel with their future master.
Half a century before the consummation one great cause of discord had
been removed. From the junction of the Liddel and Esk to the Solway
was known as the Debateable Land, a sort of No-Man’s Land, left in
doubt from the time of Bruce. Both nations pastured on it from sunrise
to sunset, but in the night any beasts left grazing were lawful prey
to the first comer. Enclosures or houses on it could be destroyed or
burned without remedy. Apparently the idea was to make it a “buffer
State” between the two kingdoms. It was, however, a thorn in the flesh
to each, for the Bateables, as the in-dwellers were called, were
broken men, and withal the most desperate ruffians on the Border. In
1552 a joint Commission divided the Debateable Land between England
and Scotland. The Bateables were driven out, and a dyke was built as
boundary line. All the same, here was, for many years, the wildest in
the whole wild whirlpool; so that long after the Union, when somebody
told King James of a cow which, taken from England to Scotland, had
broken loose and got home of itself, the British Solomon was sceptical.
It gravelled him, he confessed, to imagine any four-footed thing
passing unlifted through the Debateable Land.
With the death of Elizabeth (1603) came the Union of the Crowns, and
the Scots riders felt their craft in danger, for they forthwith made
a desperate incursion into England, with some idea (it is thought) of
staying the event. But they were severely punished, and needs must
cower under the now all-powerful Crown. The appointment of effective
Wardens presently ceased. In 1606, by the Act 4 Jac. I., cap. 1, the
English Parliament repealed the anti-Scots laws, on condition that the
Scots Parliament reciprocated; and presently a kindred measure was
touched with the sceptre at Edinburgh. The administration of the Border
was left to the ordinary tribunals, and the _Leges Marchiarum_ vanished
to the Lumber Room.
The Serjeant-at-Law
The Black Patch on the Wig--A King’s Serjeant--The Old English
Law Courts--The Common Pleas--Queen’s Counsel--How Serjeants
were Created--Their Feasts--Their Posies--Their Colts--Chaucer’s
Serjeant-at-Law--The Coif--The Fall of the Order--Some Famous
Serjeants.