LAWS IN THE LAND OF THE BORDER REIVERS
The Border Laws held sway in the Border lands of England and Scotland for over three hundred years. From the meeting of the twenty-four English knights and a similar number from Scotland in 1249 to the union of the two crowns in 1603 they were the mainstay of authority, law and justice on the English Scottish Border.
The need for a system of criminal law independent of that which already existed in both countries was apparent from the deliberations of 1222 and 1248 when it was recognized that justice would always be ‘prejudiced’.
If, for instance, a felon were brought to trial in a court of his own countrymen then it was almost inevitable that justice would be biased towards him. Moreover there would be nobody to state the case for the prosecution as plaintiff and witnesses to the crime would hardly dare to stand in a country where they were universally hated.
It was thus that the Border Laws came into being and the Border Marches were determined in an effort to control the unrest. Each of the three marches on each side of the Border was assigned a March Warden.
In 1249 the knights, recognizing the futility of endeavoring to apprehend a thief or murderer and bring him to justice in the normal way, decreed that all felons should be brought ‘to knowledge of Marche’; to the very Border line for trial.
Very little is heard of this novel approach until the early 16th century, yet it was surely in place not long after 1249 when the Border Marches and their Wardens first came to notice.
The ‘Day of Truce’ was the name of the meeting when criminals were brought to the Border Line for trial. Thus the Warden of the English West March would meet at monthly intervals with his counterpart from the Scottish West. The same held true of the Middle Marches and the East Marches. It often happened, though, that the English West would meet the Scottish Middle should thieves from that area of the Scots domain have committed many crimes in the English West.
The format was simple. Should an Englishman of the West complain to his March Warden that he had lost beasts and goods to a reive from the Scots West, the English Warden would send a ‘Bill of Complaint’ to his Scottish opposite demanding that the felon was apprehended and brought to the next ‘Day of Truce’ at the Border line. This process would be repeated many times and countered by similar complaints from the Scots.
The ‘Day of Truce’ having been set, its date and venue would be heralded at the market crosses of all the communities within the relevant Marches. On the day March Wardens would meet soon after daybreak at the allotted place.
In the English and Scottish West this could be at Rockcliffe where the river Eden separates the two countries, or the ‘Dayholme of Kershope’ where the little Kershope burn divides the nations even to this day. In the Middle Marches the Reidswire (present day Carter Bar on the main road from Newcastle to Edinburgh) or the Hanging Stone in the Cheviot hills and, in the East, the fords over the river Tweed at Coldstream or Norham. There were many more venues chosen for the ‘Day of Truce’.
The March Warden would be accompanied by many men including his land-sergeants and bailiffs as well as an entourage of ‘gentry’ chosen to attend. Prior to 1583 numbers were unlimited but in that year amendments to the Border Law restricted numbers to a hundred each side.
The land-sergeants and bailiffs were there to control any trouble that might ensue from the verdicts of the trials, the entourage to witness fair play. Ominously they were also there, in a custom that was unwritten into law, to re-act should aggression and animosity overcome the proceedings. By protocol to appear without weapons, it was a fool who attended the day without some form of defence. Many were openly armed to the teeth. There were many times in the history of the ‘Day of Truce’ when hostility erupted. One notable occasion was the ‘Raid of the Reidswire’ in 1575 when Scots and English were at each other’s throats following harsh words between the Wardens. More than one person of note was murdered in this encounter including Sir John Heron of Chipchase.
When the two entourages of Scots and English arrived at the venue for the ‘Truce’, Scots on their side of the Border, the English on theirs, they would stop and await confirmation from the Wardens that all was well. They would view each other across the river, burn or hillside that denominated the Border line with both apprehension and suspicion. It was an encounter fraught with doubt.
The Wardens would raise their arms to signify that they came in peace and to re-assure each other that the ‘Day’ would go ahead without incident. When all had settled, the English Warden chose four of his complement to cross the Border and beg ‘Assurance’ that the Scots would act with honor on this day and until the following sunrise so that all who had attended would return to their homes in peace. They would return into England and inform the Warden that all was well. Then the Scots Warden would do similar; send four of his notable company into England to request the same. When they returned the March Wardens would again raise their arms in recognition of trust and amity.
At this point each Warden would ask for silence and address his following. He demanded that every man who attended that day should honor the precepts of the ‘Day of Truce’ by swearing that he would act with honor. All were reminded that the ‘Truce’ did not end with the completion of the trials but at the following sunrise.
(One notable incident when the ‘Assurance of the Truce’ was not honored took place in March 1596. Then, a ‘Day of Truce’ was held at the Dayholme of Kershope, near Newcastleton. The proceedings being over before sunset, the English and Scots entourages were making their way home when Kinmont Willie Armstrong was illegally captured by the English. They took him before the following sunrise in a rash, impetuous swipe at the most notorious of the Scottish Border Reivers. Kinmont Willie had been asked to attend the Truce by his overlord, Sir Walter Scott of Branxholme and Buccleuch).
Each man would honor the ‘Assurance’ until the following sunrise and not offend by ‘word, deed or countenance’, in other words by angry word, aggressive or goading comment, fighting or even dirty or hostile look. When the Wardens had assurance that all would act with due respect, again they raised their arms to each other as a signal that all was well. The English would then cross into Scotland.
It was not always so but the Scots insisted that as they always had to sue for peace following a cessation of war it was their right that the ‘Truce’ should be held in Scotland. Early in the 16th century a Scottish Warden had been murdered at a ‘Truce’ held in England. The Scots felt safer on their own ground.
The Wardens would then withdraw from the throng of men and consult privately. Each had the ‘Bill of Complaints’, the demands for the attendance of the criminals at the ‘Truce’ to answer for their crimes. Often at this point there would be harsh words as argument ensued should a miscreant be absent, the inference often being that one or other of the Wardens had a vested interest in his liberty. It was at this point that any confrontation between the Wardens could spill over into the watching masses of assembled men and violent re-action quickly follow.
Should the meeting of the Wardens pass without incident, then the trials of the men harboured in the ranks of the land-sergeants and bailiffs would begin.
There were three ways of trying the criminals: by assize or jury, by advower, and lastly on the word and honour of the Warden. The most popular way was by jury though as the sixteenth century wore on, the word of the Warden became the normal way, written into Border Law as one of many amendments down the years.
In trial by assize or jury six ‘honest’ men of England were chosen by the Scottish Warden and a similar number of ‘honest’ Scots chosen by the English Warden. It was a requirement of Border Law that ‘tratours, murtherers (murderers), fugitives and betrayers’ could not chosen for the jury, a sensible approach that somewhat reduced the choice of men available! English ‘Bills of Complaint’ were heard by the Scottish jury and vice versa. Although this method would appear to be legally sound it had many drawbacks. Any member of the jury might be at feud with the defendant and thus not impartial. Alternatively, should the defendant be friend or member of a clan that ‘rode’ (reived) with the juror, then the bias against conviction would be heavily weighted. It was often the case that English and Scots Border Reivers raided together. Nationality came second to clan and surname (family).
It was a requirement of Border Law that ‘tratours, murtherers (murderers), fugitives and betrayers’ could not be chosen for the jury, a sensible approach that somewhat reduced the choice of men available! English ‘Bills of Complaint’ were heard by the Scottish jury and vice versa. Although this method would appear to be legally sound it had many drawbacks. Any member of the jury might be at feud with the defendant and thus not impartial even though he was a countryman. Alternatively, should the defendant be friend or member of a clan that ‘rode’ (reived) with the juror, then the bias against conviction would be heavily weighted.
Trial by ‘Avower’ was a remnant of a far older order of justice prevalent in the Church, that of compurgation. By this method a fellow countryman of the defendant was called on to state whether the charge was just. It was a brave man who would stand and assert the guilt. In the event that he damned the defendant, he would be a marked man, ripe for reprisal.
There is much confusion about the role of the ‘Avower’. Sir Walter Scott, writing at the beginning of the 19th century, states that the ‘vower’ was a ‘referee belonging to the party of the accused, and mutually chosen by the plaintiff and defendant’. Unfortunately this cannot be true as older records throw a different slant on the role. In the Landsdowne Mss is found the following statement- ‘It is requisite that that there be one witness againste the accused named of his owne nation, named a vower’.
Sir Robert Bowes explained with reference to the avower that “ The inquest or assize of Scotlande, notwithstanding their othe (oath), would in no wyse fynde a bill to be true, nor fyll any Scottis man upon an Englishman’s complaint unles the Englishman could fynde an inhabitant of Scotlande, that would avow openly to the inquest (jury), or secretlye to the warden, or some of the inquest, that the complaynyte was treue, and the partie complayned upon culpable thereof, otherwise althoughe the matter was ever so notoriouslie known by the Englishman, their evydence would not serve to secure a conviction.
A copy of a letter to Lord Burghley from 1585 also exists. This states that trial was by ‘confronting of a man of the same nation to averre the fact. Then is hee (the defendant) by the law guilty; for except the warden him self knowing, shall acknowledge the fact, or a man of the same nation found that voluntarilie will avouche it (the ordinarie and onlie waies of triall), be the fact never so patent, the delinquent is quitt by the laws of the Borders’.
Lord Eure was scathing in his assessment of the use of both methods:
‘Without a commission from both their Majesties (Elizabeth l of England and James Vl of Scotland) redress will rarelie be had, for the two means of justice by March Law are taken away, viz a vower is food (will be at feud), and none can be had of the Scottishe, the Englishe are terrified by these slaughters to avowe for the Scottes. Assyse (justice) is likewise taken away by the carless respecte of religione…’
In the Border lands many of the churches had been abandoned year on year as the incumbents found it impossible to survive in an environment of dearth and destitution. They relied on the product of the land in return for their spiritual guidance and comfort of the souls of the community. Without this they had little option but to leave their parishes and leave the destiny of the souls of their parishioners to destiny. Oftentimes the land was a desert, a waste.
It was easy for Lord Eure to write of ‘careless respect of religion’. It was a more urgent matter, more to the point, to endeavor to live in a land that could not provide for its inhabitants including the men of the church. A land wasted by intermittent war and a hard, obdurate people who had seen enough of the futility of officialdom, authority and monarchy to know that their survival depended on their own actions, be they legal or otherwise, had little time to think of an afterlife and whether it achieved a seat in heaven or the fires of damnation. It was all one to the man who reived to feed his family.
The word and honor of the Warden was the final method used to determine innocence or guilt of the criminals brought to trial at the ‘Day of Truce’ before the Union of the Crowns in 1603. In that year the Border lands ‘ceased to exist’ and became the Middle Shires of a new United Kingdom.
The Warden would swear on his honor that the felon had been rightly put on trial.
At the ‘Day of Truce’, whatever method of trial was resorted to during the centuries that the Border Law prevailed, the following format was usually adhered to:-
Should the initial meeting of the Wardens pass without incident, and they agree on the number of ‘Bills’ that would be heard that day, then the trials of the men harbored in the ranks of the land-sergeants and bailiffs would begin.
Crime was endemic, from murder to theft, arson and illegal protection. The main crime centered on the stealing of beasts: cattle, sheep and horses in the headlong surge to survive.
The number of beasts stolen was valued according to age and whether they were cattle, sheep or horses. A value was also put on the ‘insight’ and ‘outsight’ gear stolen, household and farming implements. Should a ‘Bill’ be proved then the accused would have to pay what was known as ‘double and sawfey’, twice the value of the goods to the plaintiff and their equal in value to the Warden for his troubles in bringing him to trial.
In trial by assize or jury six ‘honest’ men of England were chosen by the Scottish Warden and a similar number of ‘honest’ Scots chosen by the English Warden. They would swear on oath that they would honor the Truce and the responsibility they had as impartial juror.
Jury, plaintiff and defendant were required to take oaths at the commencement of any trial.
The oath of the jury was as follows:-
‘You will clean no Bills worthy to be fouled, you shall foule no Bills worthy to be cleaned, but shall do that which appeareth with truth, for the maintenance of the peace and suppression of attempts. So help you God.’
In a ‘Bill of Complaint’ (the accusation) if a man was found guilty, the word ‘fouled’ or ‘filed’ was added to the margin of the Bill. Should he be found innocent then the word ‘cleaned’ or ‘cleared’ was added.
If a felon had not been brought to the ‘Day of Truce’ to answer for his alleged crime, then ‘fouled conditionally’ was added to the margin.
Should he not appear at the third time of calling, he was ‘put to the horn’, outlawed. He would then become a ‘broken man’ often disowned by his own clan and kin.
The oath of the Prosecutor:-
‘You shall leile price make, and truth say, what your goods were worth at the time of their taking to have been bought and sold in a market taken all at one time, and that you know no other recovery but this. So help you God.
This oath was of particular importance as it was common for the prosecutor to ‘over swear’ (overstate) both the number and the value of the goods stolen.
The Oath of the Defendant:-
‘You shall swear 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, you are whart out, sackless of art, part, witting, ridd, kenning, having or resetting of any of the goods and cattels named in this ‘Bill’. So help you God.
Basically this calls for the defendant to tell the truth. ‘Resetting’ meant that should he have stolen anything, he had not put it into the hands of a ‘receiver’ away from his own lands until it was safe to bring it home.
The ‘Day of Truce’ in the Border lands of the reiving times was a day fraught with tension and animosity. That it existed for over three and fifty years is testimony to its effectiveness, be that ever so poor in many instances given the base character and morality of many who purported to uphold its tenets. There was, however, an honest endeavor to adapt and change throughout the centuries to deal with a relentless and burgeoning increase in crime. The Border Laws were amended at least seven times in their history in an effort to achieve peace and stability.
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