Border Reivers - Border Laws
The Border Laws
The Border Laws were formalised in an attempt to control the burgeoning level of crime which became endemic in the country south and north of the English\Scottish Border Line.
The Line, which was to change many times before its eventual acceptance by both countries, was initially brought about through the disputes which raged following the overthrow of the old order which had existed for centuries. By the year 1092 the Anglo-Saxon kingdom of Northumbria which had previously held sway in the east from the river Humber to the river Forth on which stands present day Edinburgh, was in its death throes as a near unified Scotland under the reign of the Canmores stamped its presence in the Lothians. Following the Battle of Carham, Scotland claimed all the land from the Forth to the river Tweed (modern day Berwick). Even though this land was hotly contested for almost another two centuries, the Tweed remains as the Border Line to this day.
In the west the kingdom of Strathclyde which had run its course as far as modern day Stainmore (the heights encountered when driving the modern A66 from Penrith to Scotch Corner), suffered a great set-back two generations earlier when William Rufus, son of William the Conqueror, invaded Cumbria and forced the Scots north. He declared that the river Esk would be the boundary between the two countries. With some minor diversions from its course, it still defines the Border Line in the west at the present time.
The central highlands, the Cheviots, were never a real issue, never hotly contested, being remote and inaccessible to great armies on the move with their host of thousands which, by necessity, relied on the land they encountered for provision. These magnificent hills, forever windswept and, as a consequence, majestic in their relative isolation, still stand as a barrier between the two countries. They form the central section of the Border Line.
The Border Line might thus have been formulated through the aggressive policies of kings vying for territory, control and the upper-hand, but their quest for dominance had little thought for the people who inhabited the lands they entrapped within their web of territorial gain. The inhabitants of the Border country had lived in effective harmony for generations with little concern for boundaries or nationality. With the formulation of the Border these people now looked across the Line with a different perspective; one that would eventually lead to strife, animosity and aggression. They became what are known to us as the Border Reivers.
The perception, especially by writers of the nineteenth century, that Edward 1’s invasion of Scotland in 1296 was the starting point for the conflict which raged between the peoples who inhabited each side of the Border Line, fails to take account of the very fact that a Border Line had existed, in a form that often changed, for almost two centuries. The formulation of this line of demarcation separated a people who shared a common heritage for hundreds of years and it was not long, a generation at the most if human nature, the loss of shared memory and experience had any part to play, before the inhabitants who lived on each side of the Line were literally at each others’ throats. To reive is to thieve. Now the people on each side of the Border, left in the wake of atrocities committed by both English and Scottish armies as both vied for supremacy, had to resort to theft to survive.Eventually it mattered not whether the theft originated in the opposite country or one's own such was the paucity of beast or crop resulting from armies which relied on the land they encountered on their way north or south. They became the Border Reivers.
It is said of the English that his home is his castle. Such an epithet holds true for most peoples. That territories were re-defined and established anew in the making of the Border not only served to make people aware of nation and identity but also instilled a natural desire to hold what was now theirs against all odds.
Should the nineteenth and twentieth century writers on the subject be right in their conjecture that it was the year 1296, the sack of Berwick and the murder of all its inhabitants followed by further defeat at Dunbar and Edward’s triumphant march through Scotland and the consequential Scottish reprisals in Tynedale and Redesdale in England, that led to the searing animosity between English and Scots, then why was it that almost fifty years earlier Knights of both countries met to establish the Border Laws?
In 1248 and again in 1249 knights of the two countries met at the Border Line to establish its margins and also set in place a range of statutes to which both the inhabitants of England and Scotland should adhere.
The meetings came about as a result of the concerns of Henry 111, who ensconced in southern England, had tired of reports of the crime that raged across his northern lands abutting with the territory of the Scots. It was clear to him that the troubles emanated from disputes concerning who owned what and the unwillingness of either people to give an inch in highly contested areas. That friction and resentment had escalated into all-out belligerence and aggression was clear to him from the many reports which reached his ears of the complaints of his own people over territorial rights and the intelligence which reached him from the Scots on one too many an occasion.
The original Border Laws of 1249 are worthy of consideration.
- ‘If any evil-doer dwelling in Scotland, whether man or woman, whether a feudal tenant or not, shall have been guilty of homicide or any other offence whereby debate or contest may arise, he shall be tried therefore only on the march of either realm’.
It is interesting to consider this statement in a little depth. Outwardly it appears to pertain to any of the Scottish race but on further deliberation it is clear that the ‘evil-doer’ is an English person fled to the Scottish nation.
This becomes clear as the statute continues by detailing the places at which the ‘evil-doer’ shall be tried. As these are based on the area within which he was known to reside, it is obvious that the statute refers to any of the English who have raced ‘hotfoot’ over the Border following their crime:
‘If the defendant dwell beyond Rede he shall be tried at Ridingeburn (some six miles west of Coldstream). Anyone from Redesdale and Coquetdale must be tried at Campaspeth according to the laws and customs in use between the two realms. (Campaspeth is Gammel’s Path or the old path and is the track of the old Roman road that led from High Rochester Camp to Ad Fines Camp (Chew Green) at the head of the river Coquet.
The statute is somewhat puzzling in that it refers only to English miscreants.
- The knights asserted that all men between Totnais (Totnes) in England and Caithness in Scotland can be called to the Marches for combat, with the exceptions of the persons of the Kings of the said realms and of the Bishops of Saint Andrew and Dunkeld.
- Thirdly the knights asserted that if anyone whether vassal or bondsman of Scotland shall have fled within the realm of England, with or without his cattle, wishing thus to escape from his Lord, he must be brought back to Scotland- if he is prosecuted within forty days after crossing the Marches by his Lord or bailiff-without any hindrance on the part of England on oath given, and, conversely, the like to hold good of an English fugitive.
‘But if the Lord prosecute not within forty days he shall never recover his man except by warrant from the King in whose realm he has sought refuge.
‘And if after forty days he is found within the realm which he left he may be taken, unless he is a bondsman, by his lord on the oath of six men in addition to his lord’s.
- If any native of England or Scotland shall be accused of debt he shall provide a pledge for forty-five days by means of inbrocht wood and utbrocht wood (sureties of his own, and the other realm), and they shall redeem the debt within the next fifteen days. And if by then the debtor shall not have paid this off his pledge may be taken and held until full satisfaction shall have been given for his debt.
‘But if he denies the debt he shall clear himself at the Marches within fifteen days by the oath of seven men, his own included. And the same, if the debtor shall make default, holds good in regard to the pledge.
‘If he acknowledges his debt and has no goods wherewith to pay he shall purge himself by his oath on the ground that he has no more in goods than five shillings and four pence, and further shall swear that he will pay his debt as soon as he shall save or obtain the amount, his food alone being immune.
- All accusers on either side shall swear for themselves, except only the two kings and their heirs, and the Bishops of St. Andrews and Dunkeld.
‘For the King of England, his standard-bearer and his constable shall swear. In the same way for the King of Scotland and the Lord Bishop of St. Andrews and the presbyter of Weddle- shall swear, and for the Lord Bishop of Dunkeld the Prior of the Isle.
- The knights asserted that no-one can act by attorney in making oath at the Marches in a quarrel wherein life and limbs are involved save only with the consent of either party. The two kings and bishops only being excepted, as above said. Default will invalidate the cause forever whether for prosecutor or defendant.
- The seventh of the statutes of the Border Law agreed by the 24 knights in 1249 stated:-
The knights asserted that if a quarrel takes place on the Marches between the two countries and this between a prosecutor and a defendant on a matter of life and limb, then supposing that the defendant shall have died within fifteen days, within the statutory time, his body shall be brought to the Marches at the day and place within the appointed parts, since no man can be essoigned by death. ‘And if the prosecutor delaying shall not have appeared at the same appointed time, the defendant must make his way to the Marches and must take the pledge of Wardsheill (trial by combat, handwarsil), from three Barons to testify that he has properly appeared on his day. And this being approved by them, he shall be forever freed from that charge. And if by chance any one of the three refuse to testify he may have a combat. The same rule applies to the prosecutor.
There was an inquest held at Carlisle in 1292 by Hugh de Cressingham*, the outcome of which was that the ‘duellum’ or trial by combat had existed from the earliest times. It was used to settle matters touching life and limb between the English and Scots. In other words trial by combat was used where serious injury or death to family or ally had occurred and the appellant sought justice.
No-one could escape the trial by combat once accused apart from the Kings of England and Scotland and their heirs and the Bishops of St. Andrews and Dunkeld or Durham. The fight of ‘trial by combat’# always took place at the four battle grounds at or near the Border at Camisford opposite Norham on the East Marches; at Redam or the Riding burn that runs into the river Tweed, west of Carham was used for the Middle Marches. Gammelspath (the height above Ad Fines camp was used for Coquetdale and Redesdale, and Sulwath, the modern day Solway for the Western Marches. This has been identified as the Lochmabenstone near to Gretna Green. At these appointed places the appellant and defendant would meet to settle their differences by single combat.
No proof could be admitted by an Englishman against a Scot or by a Scot against an Englishman ‘save only by the body of a man’.
The defendant, if appealed, was bound to fight- to take handwarcel or handwarsil, but he had also to find security, and if he could not, then the accuser had his will with him. The defendant could be represented by a champion but should the latter fail in the endeavour and lose his life in the trial by combat, or be defeated by the appellant, the defendant could lose his head. Were his champion to lose then the defendant would have to pay the cost of the claim. Should he not have the means to do this or provide sureties who were capable of meeting its requirements then the defendant would be handed over to the appellant for him to deal with as he wished which could result in death.
The sword, then, decided the law plea, and in the event of defeat, the vanquished must endure loss of goods, livelihood, fame and even life itself.
The defendant had to find sureties or pledges who would insure him for the amount claimed by the appellant if he could not find them himself. If he could not find sureties or securities and was subsequently convicted on the outcome of the trial by combat, he was liable to be handed over to his accusers ‘to do justice concerning him at their will.’ The accuser had only to make a preposterous claim for damages to debar the defendant from obtaining sureties and thus, by default, ensure his guilt.
Edward 1 repudiated this custom about 1280 and insisted that the amount of security reflected the actual amount of the damage. As this was an unsatisfactory conclusion to his deliberations on the matter, it seems the law was changed and the defendant was not handed over to his accuser to do justice to him according to their will.
‘Trial by Combat’ was one of the main statutes of the Border Laws as laid down in 1249. Even should the defendant have died within the statutory time of fifteen days allowed before the case was brought, his body would have been taken to the place of combat ‘since no man can be essoigned by death.’
MANUM DE WARDSHIELL (PLEDGE OF WARDSHIELL).
Wardshiell seems to mean wager of battle. If the defendant attended the fighting ground with three witnesses and found the appellant not to be there he should be quit of the claim for all time.
The three witnesses would need to assert that the defendant came to the place of combat to ensure that the claim was void. Should any of the three claim at a future time that they did not witness the coming of the defendant, then the appellant, should he resurrect his grievance could claim defective memory, i.e. forgetfulness, for not turning up. In this case he had to fight any one of the witnesses, or if need be, all three to prove his charge. For the same reason, the defendant could insist on the trial by combat. All this is excellent but when did trial by combat come to an end. Was it in 1280 at the dictates of Edward 1. Edward’s main concern, however, was the ‘overswearing’ of the claim to make it nigh on impossible for the defendant to find sureties.
Howard Pease (writer of the 'Lord Wardens of the Marches of England and Scotland') does not seem to state when trial by combat was no longer used. It was certainly part of the Border Laws of 1249.
The sureties surely led to the compurgation or advowers, the inordinate claims carried on in the overswearing of losses.
- They asserted that if any Scots thief shall have stolen a horse in England, or oxen, or cows or anything else and leads the same away into Scotland the owner, in whatsoever place he finds his gear, shall recover it in the Court of the Feudal Lordship where he has found his gear.
‘And this he shall recover in the aforesaid Court by the oath of six men-his own making the seventh- unless it chance that he who retains the gear says it is his own, in which case a contest may issue on the Marches.
- They asserted that if any one shall be indicted whether Scots or English- for life and limbs at the Marches on a charge of robbery, theft or homicide, the pledges- if the defendant is worsted in contest- shall not be responsible for more than the amount set forth by the prosecutor in his claim.
- If any evil-doer, who has entered into any part of the other realm, shall there wish to have peace, he shall have it from those who can give it, namely from the High Sheriff, and if by chance he cannot find the High Sheriff, he can receive peace at the first church- the bells being rung- and there he shall be in peace until he shall have peace through the High Sheriff. And if before he has peace he is apprehended, he shall be led off without hindrance.
- If anyone shall claim any mare, ox, cow or pig, or any other animal in either England or Scotland, as his own he shall have the benefits of all the delays agreed upon between the realms and the full term of days in the cause. If he shall wish to come off without fighting, and finds that the gear is not his own, he shall on the appointed day drive it back to the Marches, and send word to the party against whom he claimed the gear that the horse is his and shall drive it into the water of Tweed or Esk.
‘And the defendant shall be quit of that claim or charge. If the animal is drowned before it has crossed the stream of water (mid-stream) he shall be responsible for it according to March custom, and the same holds good of an ox, cow or pig or anything else, save baggage, of which there is no mention.
- No Englishman can test an accused Scot by means of witnesses- the converse also holding good-save only by the body of a man, and thus many contests can arise in the disputes that have occurred or are likely to occur between the Marches.
- If anyone happens to be in the realm of England or Scotland, or conversely according to the Laws of the Marches, who claims a debt in the other kingdom where he remains, he must advise the clerics, if it is a cleric who is in his debt, the knights, if it is a knight, the burgesses, if it is a burgess, and by them the case must be decided and not by othes.
Further, they agreed, that Inburghe and Outburgh (magistrates within and without burghs) shall have power to distrain either country so that the above-mentioned customs may be inviolately observed between the two realms. #Trial by Combat was on the statute book of English Law until 1819. One, Abraham Thornton, was accused of manslaughter in 1818 and claimed to defend his cause ‘by his body’ and threw down a gauntlet in accordance with the centuries-old duel of law. In the event he went free and the ancient law was repealed.
*Hugh de Cressingham was Chief Justice of northern England and Treasurer of Scotland under the occupation of that country by Edward 1. He was known for his particularly cruel treatment of the Scots who hated him almost on a par with the English King. He was present at the Battle of Stirling Bridge in 1297 where the Scots, under ‘Braveheart’ William Wallace, resoundingly defeated an English army. Cressingham died in the battle. Legend says that his body was flayed and a sword belt made of it for Wallace’s sword. Other accounts say that pieces of it were sent to towns in Scotland and nailed on the main gates as a reminder that every Scot should resist the English invasion.