Border Raids and Reivers

V.

THE WARDENS OF THE MARCHES

Owing to the peculiar circumstances in which the Borders were placed, it was found necessary, for the preservation of order, and the detection and punishment of crime, to appoint special officers, or wardens, armed with the most extensive powers. On either side of the Border there were three Marches, lying opposite each other, called the East, West, and Middle Marches. The wardens were, as a general rule, officers of high rank, holding special commissions from the Crown. The English government had little difficulty in finding gentlemen of high station and proved ability to undertake the duties of such an office; but in Scotland the King was considerably circumscribed in his choice, as the Border Chiefs were accustomed to carry things with a high hand, and in any arrangements relating to the management of affairs in their own districts, their wishes and interests had, perforce, to be respected. The office of warden was regarded as belonging, by a kind of prescriptive or hereditary right, to one or other of the more prominent and powerful Border families. This policy was fraught with many disadvantages, and, it must be frankly admitted, produced the very evils it was designed to suppress. The Scottish wardens had other objects in view besides the maintenance of a certain semblance of law and order in the districts over which they ruled. They seldom lost sight of their own pecuniary interests, and frequently prostituted their high office to secure their own ends. The wardens themselves were often the principal offenders.

In the East March the warden was most generally either an Earl of Home or a Ker of Cessford. The Middle March was long under the supervision of the Earls of Bothwell and the Lords of Buccleuch. The West March was usually represented either by a Johnstone or a Maxwell.

The Scottish wardens, though invested with the most arbitrary powers, found it politic to enter into bonds of alliance with the neighbouring Chiefs, in order not only to increase their influence and power within their own wardenries, but to add to their authority when called upon to deal with questions of a more general nature. This fact reveals unmistakably the weakness of the central government of the country at this period, and indicates the important part which was played by the nobility in the administration of the affairs of the nation.

Several of these “Bonds” have been preserved. Some of them are too lengthy for quotation, but the following one – which is comparatively brief – may be taken as a fair sample of the whole. It is subscribed by the Lairds of Buccleuch, Hunthill, Bon-Jeddart, Greenhead, Cavers, and Redheugh, in favour of Sir Thomas Ker of Fernihirst, and runs as follows: – “We undersigned, inhabitants of the Middle March of this realm opposite England, understanding how it has pleased the King’s majesty our sovereign lord to make and constitute Sir Thomas Ker of Fernihirst Knight his Highness warden and justice over all the Middle March, and acknowledging how far we are in duty bound to the service by our counsel and forces to be employed in the assistance of his said warden in all things tending to the good rule and quietness of the said Middle March, and setting forth of his Highness authority against these traitors, rebels, and other malefactors to their due punishment, and defence and safety of true men. Therefore we be bound and obliged, and by the tenor hereof binds and obliges us, and every one of us, that we should truly serve the King’s Majesty our sovereign lord, and obey and assist his said warden, in the premiss, and shall concur with others in giving of our advice and counsel, or with our forces in pursuit or defence of the said thieves, traitors, rebels, and other malefactors disobedient to our sovereign lord’s authority, or disturbers of the public peace and quietness of the realm, as we shall be charged or warned by open proclamations, missives, bailies, or other the like accustomed forms as we will answer to his Highness upon our obedience at our highest charge and peril, if we shall be found remiss or negligent, we are content to be repute held and esteemed as favourers and partakers with the said thieves, traitors, rebels, and malefactors in their treasonable and wicked deeds, and to be called, pursued, and punished therefor, according to these laws in example of others.”31

There can be no doubt that these “Bonds” were often contracted in good faith; that is to say, those who subscribed them were honestly desirous to fulfil, both in the spirit and letter, the obligations thus undertaken. It is, however, worthy of remark that those who had thus sworn allegiance to the warden had not infrequently ends of their own to serve, which conflicted with their duty to the representatives of law and order. Thieves were harboured, or at least allowed to remain unmolested, on the estates, or within the jurisdiction, of those who had thus professedly banded themselves together for their detection and punishment. The result was that the subscribers to the “Bond” were occasionally reported to the government for their delinquencies, and prosecuted and punished for their breach of faith. Thus we find that on one occasion Walter Ker of Cessford, James Douglas of Cavers, George Rutherford of Hunthill, and Ker of Dolphingstone were convicted of art and part of the favour and assistance afforded to Robert Rutherford, called Cokburn, and John Rutherford, called Jok of the Green, and their accomplices, rebels and at the horn; permitting them to pass within their bounds continually for divers years past; for not using their utmost endeavour to hinder them from committing sundry slaughters, stouth-reifs, thefts and oppressions on the King’s poor lieges, nor ejecting the said rebels, their wives and their children, from their bounds and bailiaries, but knowingly suffering them to pass within their limits and to remain therein beyond the space of twelve hours, to commit sundry crimes during the time of their passing and reset within the shire in which they dwelt, thereby breaking, transgressing, and violating their obligation and “Bond” to the King, and incurring the pains contained in the said “Bond.”32

It is remarkable, considering the reputation enjoyed by the Borderers for being true to their word, that such occurrences should have to be so frequently complained of.

Unfortunately, the wardens were as little animated by a high sense of honour as those who had solemnly pledged themselves to support them in the discharge of the duties of their office. They frequently, and in some cases almost systematically, exercised the powers conferred on them, not in trying to preserve the public peace, but in wreaking vengeance on their enemies. A striking instance of this is to be seen in the conflict which was so long waged between the Johnstones and the Maxwells, and which produced endless misery and mischief throughout a wide area.

All things considered, the wardens were well remunerated for such services as they were able to render. The usual fee appears to have been £100 per annum. In 1527 the Earl of Angus had £100 for the East and a similar sum for the Middle March. In 1553 the Warden’s fee was £500, but he had to surrender the one half of the “escheats” to the authorities. When William Ker of Cessford was appointed warden of the Middle March and keeper of Liddesdale, his salary for the former office was £100, and for the latter £500. But these sums represented but a small part of the actual income. They were also allowed forage and provision for their retinue, which consisted of a guard of horsemen. They had in addition a portion of the “unlaws” or fines imposed in the warden courts, and at certain periods these must have amounted to a large sum. The law ordained that “the escheat of all thieves and trespassers that are convict of their movable goods, ought and should pertain to the warden for his travail and labours, to be used and disposed by him at his pleasure in time coming. The warden ought and should take and apprehend all and sundry our sovereign Lord’s lieges turning and carrying nolt, sheep, horses, or victuals furth of this realm into England, and bring their persons to the King’s justice, to be punished therefor; and all their goods may he escheat: the one half thereof to be applied to the King’s use, and the other half to the warden for his pains.” In addition to this, the wardens had a large share of the plunder of the various forays upon the English Border, which they either conducted in person, or winked at when undertaken by their retainers or dependants. In the “Border Papers” we are informed that on Sunday, the 17th April, 1597, the Lord Buccleuch, Keeper of Liddesdale, accompanied by twenty horse and a hundred foot, burned at noonday three onsets and dwelling-houses, barns, stables, oxhouses, &c., to the number of twenty, in the head of Tyne, cruelly burning in their houses seven innocent men, and “murdered with the sword” fourteen which had been in Scotland, and brought away the booty, the head officer with trumpet being there in person.33 This was a frequent occurrence, especially with Buccleuch, who was never quite happy when not plundering and oppressing “the auld enemy.” From a pecuniary point of view, not to speak of other advantages, the office of warden was a highly desirable one, and was consequently eagerly sought after by the Border Chiefs.

The duties pertaining to this office may be described as of a twofold nature – the maintenance of law and order, and the protection of the districts against the encroachments and inroads of the enemy. “In the first capacity,” as has been remarked, “besides their power of control and ministerial administration, both as head stewards of all the crown tenements and manors within their jurisdiction, and as intromitting with all fines and penalties, their judicial authority was very extensive. They held courts for punishment of high treason and felony, which the English Border laws classed under the following heads: —

I. The aiding and abetting of any Scottishman, by communing, appointment, or otherwise, to rob, burn, or steal, within the realm of England.

II. The accompanying personally, of any Scottishman, while perpetrating any such offences.

III. The harbouring, concealing, or affording guidance and protection to him after the fact.

IV. The supplying Scottishmen with arms and artillery, as jacks, splents, brigantines, coats of plate, bills, halberds, battle-axes, bows and arrows, spears, darts, guns, as serpentines, half-haggs, harquibusses, currys, cullivers, hand-guns, or daggers, without special licence of the Lord-warden.

V. The selling of bread and corn of any kind, or of dressed leather, iron, or other appurtenances belonging to armour, without special licence.

VI. The selling of horses, mares, nags, or geldings to Scottish men, without licence as aforesaid.

VII. The breach of truce, by killing or assaulting subjects and liege-men of Scotland.

VIII. The assaulting of any Scottishman having a regular pass or safe-conduct.

IX. In time of war the giving tidings to the Scottish of any exploit intended against them by the warden or his officers.

X. The conveying coined money, silver or gold, also plate or bullion, into Scotland, above the value of forty shillings at one time.

XI. The betraying (in time of war) the counsel of any other Englishman tending to the annoyance of Scotland, in malice to the party, and for his own private advantage.

XII. The forging the coin of the realm.

XIII. The making appointment and holding communication with Scotchmen, or intermarrying with a Scottish woman, without licence of the wardens, and the raising of no fray against them as in duty bound.

XIV. The receiving of Scottish pilgrims with their property without licence of the wardens.

XV. The failing to keep the watches appointed for the defence of the country.

XVI. The neglecting to raise in arms to the fray, or alarm raised by the wardens or watches upon the approach of public danger.

XVII. The receiving or harbouring Scottish fugitives exiled from their own country for misdemeanours.

XVIII. The having falsely and unjustly fould (i. e., found true and relevant) the bill of any Scotchman against an Englishman, or having borne false witness on such matters.

XIX. The having interrupted or stopped any Englishman pursuing for recovering of his stolen goods.

XX. The dismissing any Scottish offender taken red-hand (i. e., in the manner) without special license of the Lord-warden.

XXI. The paying of black-mail, or protection money, whether to English or Scottish man.”34

The significance of these provisions cannot be mistaken. They reveal the anxiety of the English government to prevent, as far as possible, all intercourse with Scottish Borderers. The offences referred to in the foregoing list amounted to what is known as March Treason. Those who were accused of this crime were tried by a jury, and if found guilty were put to death without ceremony. “This was a very ordinary consummation,” says Sir Walter Scott, “if we can believe a story told of Lord William Howard of Naworth. While busied deeply with his studies, he was suddenly disturbed by an officer who came to ask his commands concerning the disposal of several moss-troopers who had just been made prisoners. Displeased at the interruption, the warden answered heedlessly and angerly, ‘hang them in the devil’s name;’ but when he laid aside his book, his surprise was not little, and his regret considerable, to find that his orders had been literally fulfilled.”35

The duties devolving upon the Scottish wardens were not, in all respects, the same as those which the English wardens were called upon to discharge. This was due to some extent to the fact that the jurisdiction of the Scottish wardens was circumscribed by the hereditary rights and privileges of the great families who, within their own territories, exercised supreme control. In addition to this, the hereditary judges had the power of repledging; that is to say, they could reclaim any accused person from courts of co-ordinate jurisdiction, and try him by their feudal authority. But while the power of the wardens was thus considerably circumscribed, they never hesitated, when they had the chance, to mete out summary punishment to all offenders. If a thief was caught red-handed, or if the evidence against him appeared at all conclusive, he was at once, and without ceremony, strung up on the nearest tree, or thrown into the “murder” pit. Indeed, the execution not unfrequently preceded the trial – a circumstance which seems to have given rise to the well-know proverb about “Jeddart Justice.” On both sides of the Border, the same haste to get rid of offenders was a noted feature of the times. This is evident from the well-known English proverb which runs thus —

The sitting in judgment, either before or after, was a formality that might often have been dispensed with, as the evidence submitted was seldom carefully sifted, or weighed. To be suspected, or accused, was regarded as almost tantamount to a plea of guilty. Such a method as this would hardly pass muster in our modern and more finical age; still it is probable that substantial justice was usually done. If those who were condemned were not always guilty of the particular crimes laid to their charge, their general record was sufficiently bad to warrant their being thus summarily dealt with.

There was, moreover, a practical difficulty in the way of minute investigation being made into each individual case. The number of those accused of various offences under the Border laws was often so great as to render an investigation of this kind all but impossible. There were few places of strength where prisoners could be retained in order to await their trial, and so it became necessary to deal with them as expeditiously as possible. “The Borderers,” it has been said, “were accustomed to part with life with as little form as civilized men change their garments.”

The mode of punishment was either by hanging or drowning. “Drowning,” says Sir Walter Scott, “is a very old mode of punishment in Scotland, and in Galloway there were pits of great depth appropriated to that punishment still called murder-holes, out of which human bones have occasionally been taken in great quantities. This points out the proper interpretation of the right of ‘pit and gallows’ (in law Latin, fossa et furca), which has, less probably, been supposed the right of imprisoning in the pit or dungeon, and that of hanging. But the meanest baron possessed the right of imprisonment. The real meaning is, the right of inflicting death either by hanging or drowning.”36

But the warden had other duties to discharge of a still more important nature than those already described. In time of war he was captain-general within his own wardenry, and was invested with the power of calling musters of all the able-bodied men between the age of sixteen and sixty. These men were suitably armed and mounted according to their rank and condition, and were expected to be ready either to defend their territory against invasion, or, if necessary, to invade the enemy’s country. The ancient rights and customs which the warden was expected to observe on such occasion have been thus summarised: —

“I. All intercourse with the enemy was prohibited.

II. Any one leaving the company during the time of the expedition was liable to be punished as a traitor.

III. It was appointed that all should alight and fight on foot, except those commanded by the general to act as cavalry.

IV. No man was to disturb those appointed to array the host.

V. If a soldier followed the chase on a horse belonging to his comrade, the owner of the horse enjoyed half the booty; and if he fled upon such a horse, it was to be delivered to the sheriff as a waif on his return home, under pain of treason.

VI. He that left the host after victory, though for the purpose of securing his prisoner, lost his ransom.

VII. Any one seizing his comrade’s prisoner was obliged to find security in the hands of the warden-serjeant. Disputed prisoners were to be placed in the hands of the warden, and the party found ultimately wrong to be amerced in a fine of ten pounds.