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—
“I oft have heard of Lydford law,
Where in the morn men hang and draw,
And sit in judgment after.”