Part 8

To meet such conditions the Border Laws were evolved. They were administered in chief by special officers called Wardens. Either Border was portioned out into three Marches: the East, the Middle, and the West (the Lordship of Liddesdale was included in the Scots Middle March, but sometimes it had a special Keeper of almost equal dignity with a Warden.) Each of the three Scots Wardens had a hundred pounds of yearly fee; he could appoint deputies, captains of strongholds, clerks, sergeants, and dempsters; he could call out the full force of his district to invade or beat back invasion; he represented the Sovereign, and was responsible for crimes. He must keep the Border clans in order by securing as hostages several of their most conspicuous sons, and either these were quartered on nobles on the other side of the Firth, or they were held in safer keeping in the king’s castles. He also held Justice Courts for the trial of Scots subjects accused of offences against the laws of their own country. He was commonly a great noble of the district, his office in early times being often hereditary; and, as such noble, he had power of life and death, so that the need for holding special courts was little felt. A pointed Scots anecdote pictures an angry Highlander “banning” the Lords of Session as “kinless loons,” because, though some were relatives, they had decided a case against him. These Wardens were _not_ “kinless loons,” and they often used their office to favour a friend or depress a foe. On small pretext they put their enemies “to the horn,” as the process of outlawry (by trumpet blast) was called. True, the indifference with which those enemies “went to the horn” would scandalise the legal pedants.

Sometimes a superior officer, called “Lieutenant,” was sent to the Borders; the Wardens were under him; he more fully represented the royal power. Now and again the Sovereign himself made a progress, administering a rough and ready justice, and so “dantoning the thieves of the Borders, and making the rush bush keep the cow.” So it was said of James V.’s famous raid in 1529. The chief incident was the capture of Johnie Armstrong of Gilnockie, the ruins of whose picturesque tower at the Hollows still overlook the Esk. Gilnockie came to meet his King with a great band of horsemen richly apparelled. He was captain of Langholm Castle, and the ballad tells how he and his companions exercised themselves in knightly sports on Langholm Lee, whilst “The ladies lukit frae their loft windows. ‘God bring our men well hame agen!’” the ladies said; and their apprehensions were more than justified, for Johnie’s reception was not so cordial as he expected. “What wants yon knave that a King should have?” asked James in angry amaze, as he ordered the band to instant execution. Gilnockie and company were presently strung up on some convenient yew-trees at Carlenrig, though, in accordance with romantic precedent, one is said to have escaped to tell the tale. Many of Johnie’s name, among them Ill Will Armstrong, tersely described as “another stark thieff,” went to their doom; but the act, however applauded at Edinburgh, was bitterly condemned on the Borders. Gilnockie only plundered the English, it was urged, and the King had caught him by a trick unworthy a Stuart. The country folk loved to tell how the dule-trees faded away, and they loved to point out the graves of the Armstrongs in the lonely churchyard. But the stirring ballad preserves the name better than all else. It unblushingly commends Gilnockie’s love of honesty, his generosity, his patriotism, and directly accuses his Sovereign of treachery, in which accusation there is perhaps some truth. Anyhow, his execution was the violent act of a weak man, and had no permanent effect.

The Wardens had twofold duties: first, that of defence against the enemy; second, that of negotiation in times of peace with their mighty opposites. Thus the Border laws were part police and part international, and were administered in different courts. Offences of the first class were speaking or conferring with Englishmen without permission of the King or the Warden, and the warning Englishmen of the Scots’ alertness in the matter of forays. In brief, aiding, abetting, or in any way holding intercourse with the “auld enemy” was march treason (to adopt a convenient English term).

In England the Wardens were finally chosen for their political and military skill, not because of their territorial position. Now, the Warden of the East Marches was commonly Governor and Castellan of Berwick. The castle of Harbottell was allotted to the Warden of the Middle Marches; whilst for the West, Carlisle, where again Governor and Warden were often one, was the appointed place. Sometimes a Lord warden-general was appointed, sometimes a Lieutenant, but the Wardens were commonly independent. At the Warden courts Englishmen were punished for march treason, a branch of which was furnishing the Scots with articles of merchandise or war. And here I note that Carlisle throve on this illegal traffic. At Carlisle Fair the Carlisle burgher never asked the nationality of man or beast. The first got his money or its equivalent; the second was instantly passed through the hands of butcher and skinner. Though the countryside were wasted, the burghers lay safe within their strong walls, and waxed fat on the spoils of borderman and dalesman alike. Small wonder the city was “Merrie Carlisle.” The law struck with as little force against blackmail, or protection money, which it was an offence to pay to any person, Scots or English. From this source, Gilnockie and others, coining the terror of their name, drew great revenue. Another provision was against marriage with a Scotswoman without the Warden’s consent, for in this way traitors, or “half-marrows,” arose within the gate. Complete forms are preserved of the procedure at those Warden courts. There were a grand jury and an ordinary jury, and the Warden acted very much as a judge of to-day. One or two technical terms I shall presently explain. Here I but note that the criminal guilty of march treason was beheaded “according to the customs of the marches.”

The international duties of the Wardens were those of conference with 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.