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,