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.