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VI.
THE DAY OF TRUCE

 
“Our wardens they affixed the day,
And as they promised so they met.
Alas! that day I’ll ne’er forget!”
 

Old Ballad.

The arrangements made for dealing with offences against Border law, though of a primitive, were by no means of an ineffective, character. All things considered, they were perhaps as good as could have been devised in the circumstances. During the period when Border reiving was most rampant, though the population was by no means sparse, little or no provision had been made for detaining prisoners in custody. The jails were few and far between, and such as were available were generally in such an insecure and ruinous state that, unless strongly guarded, they were almost useless for the purpose for which they existed. But imprisonment had other inconveniences which militated against its being resorted to with much frequency. Prisoners had to be provided for when under “lock and key,” and, as provisions were difficult to procure, it was generally found more advantageous to leave those who had broken the laws to “fend” for themselves until such times as they were wanted. As might be expected in such circumstances, the accused person not unfrequently took “leg-bail,” and passed into another district, or, perhaps, crossed the Border, and sought refuge among the enemies of his country and his clan. This expedient, in those lawless and disordered times, was no doubt occasionally successful – for the nonce – but sooner or later the evil-doer was either betrayed by the enemy, or, resuming his old habits – which was almost a necessity – brought himself under the special notice of the warden of the district to which he had fled. He thus placed himself, as it were, between two fires, and made further immunity from prosecution practically impossible. When it came to the knowledge of the warden that an accused person had passed into another wardenry, he at once certified the warden opposite, requiring him to apprehend and deliver the prisoner with all possible speed; and he was bound, after receiving this notice, to make proclamation throughout his wardenry “by the space of six days after of the said fugitive,” and also to certify the other two wardens of the realm “to proclaim the fugitive throughout all the bounds of their wardenries, so that none could proclaim ignorance, or excuse themselves when charged with the wilful receipt of the aforesaid fugitive so proclaimed.”

The duty thus laid upon the wardens of searching for fugitives was one which was generally undertaken con amore, not merely on account of the fact that it was naturally agreeable to these officers to detect and punish crime, but also because in such circumstances it was greatly to their advantage to do so. A law was passed ordaining that when a fugitive entered with his goods into the opposite realm, the warden who captured him, and handed him over to be punished for his offence, was entitled to retain the goods for his labour. Should he not succeed in apprehending the fugitive, then the goods had to be returned to the warden of the realm from which they came. This was a wise arrangement, and on the whole proved fairly effective.

As offences against the law were numerous and frequent, it was statute and ordained that a “Day of Truce” should be held every month, or oftener, when the wardens of the Marches opposite each other should meet for the discussion and adjustment of their respective claims, and the punishment of evil-doers. The date and place of this meeting was made known to the inhabitants of the Marches by proclamation being made in all the market towns. Notice was also sent to the lords, knights, esquires, and gentlemen, commanding them, along with a sufficient number of their tenants and servants, well mounted and fully armed, to repair the night before and attend upon the warden at the day of truce.³⁸

Early on the morning of the following day this imposing cavalcade might be seen wending its way towards the place of rendezvous. This was generally some convenient spot near the Border, most frequently on the Scottish side. When the wardens and their friends came within hailing distance of each other, a halt was called, and the English warden sent forward four or five gentlemen of good repute to demand from the Scottish warden “that assurance might be kept” until the sunrise of the following day. According to a statement made on the authority of Sir Robert Bowes, the reason of this particular form of procedure was “because the Scots did always send their ambassadors first into England to seek for peace after a war. Therefore both the particular days of truce are usually kept either at places even on the confines of the Marches, or else at places within the realm of Scotland, and also the English warden and other officers were always used to send first for the assurance as aforesaid.”

When assurance had been given by the Scottish warden, a number of Scottish gentlemen passed over to the other side to demand from the English warden assurance on his part. These preliminary precautions having been duly observed, the two parties met, and the business which had brought them together was at once entered upon. The wardens did not always attend these meetings in person, their duties occasionally necessitating their remaining at home, but when unable to be present themselves they were represented by deputies – men of influence and good social position – who were thoroughly qualified to deal with any important question that might arise.

The regulations for the conduct of business at these meetings were carefully drawn out, and, as a general rule, strictly observed. The English warden named six Scottish gentlemen to act on his side, and the Scottish warden the same number of Englishmen to act as the English assize. These men, who thus constituted the jury, were carefully chosen. No murderer, traitor, fugitive, infamous person, or betrayer of one party to another could bear office, or give evidence, but only good and lawful men deserving of credit and unsuspected.

Each warden, in the presence of the opposite warden and the inhabitants of both the Marches, “Swore by the High God that reigneth above all Kings and Realms, and to whom all Christians owe obedience, that he shall (in the name of God) do, exercise and use his office without respect of person, Malice, Favour, or Affection, diligently or undelayedly, according to his Vocation or Charge that he beareth under God and his Prince, and he shall do justice upon all Complaints presented unto him, upon every Person complained upon under this Rule. And that, when any complaint is referred unto him, to swear, fyle, and deliver upon his Honour, he shall search, enquire, and redress the same at his uttermost power: And that, if it shall happen in so doing to quit and absolve the persons complained upon as Clean and Innocent: Yet if he shall any ways get sure Knowledge of the very Offender, he shall declare him foul of the Offence, and make lawful Redress and Delivery thereof, albeit the very Offender be not named in the Complaint: And this Oath of the Wardens not only to be made at the first Meeting hereafter to ensue, but also to be made every Year once solemnly, as aforesaid, at the first Meeting after Mid-summer, to put them in the better Remembrance of their Duties, and to place the fear of God in their Hearts.”³⁹

The following oath was also administered to the jury: – “Ye shall truly enquire, and true deliverance make between the Queen’s Majesty, and the prisoners at the Bar, according to the evidence that shall be given in this Court. As God keep you and Holydome.”⁴⁰

These formalities having been duly observed, the trial of the prisoners was then proceeded with. Bills were presented on the one side, and on the other, setting forth with considerable fulness of detail the nature and extent of the damages that had been sustained. The prisoners against whom these indictments had been made were then called to answer the charges preferred against them.

There were at least three ways in which these cases could be tried. In the first place, the bill might be acquitted on the honour of the warden. But should it afterwards be found that the warden in acquitting the bill had proceeded on imperfect information, and had acquitted upon his honour a bill that was in reality “foul,” then the complainant was at liberty to prosecute a new bill, and demand that justice should be done. The case was then tried by a jury who “fyled” or “cleared” the bill at their discretion. When a bill was “fyled,” that is to say declared true, the word “foul” was written on the margin, and when it was “cleared,” the word “clear” was inserted.

But further, bills might be tried by inquest or assize, which was the method most frequently adopted, such cases being decided by the juries on their own knowledge, and on the evidence sworn to in open court.

The third way of dealing with bills was by a “Vower.” The significance of this method is fully explained by Sir Robert Bowes, who says: – “The inquest or assise of Scotlande, notwithstanding their othe, would in no wyse fynde a bill to be true, nor fyll any Scottis man upon an Englishman’s complaynte unles the Englishman could fynde an inhabitant of Scotlande, that would avow openly to the inquest, or secretlye to the warden, or some of the inquest, that the complaynte was treue, and the partie complayned upon culpable thereof, otherwise althoughe the matter was ever so notoryously knowne by the Englishman, their evydence would not serve to secure a conviction.”

It frequently happened, on the occasion of these meetings, that “bogus” bills were presented, a custom which gave the officials a great deal of unnecessary labour. The commissioners, in referring to this reprehensible practice, remark that “it hath been perceived of late that, since the order was begun by the Warden to speire, fyle, and deliver, upon their Honour, that some ungodly Persons have made complaint, and billed for Goods lost where none was taken from them, and so troubled the Wardens, causing them to speire and search for the Thing that was never done.”⁴¹ It was therefore statute and ordained that all persons guilty of this offence should be delivered to the opposite warden to be punished, imprisoned, and fined at the discretion of the same warden whom he had troubled.

Another formidable difficulty with which the wardens had to contend on these occasions, was in estimating the value of the goods for which redress was claimed. In making up a bill the complainant was strongly tempted to put an absurd value on the gear, or cattle, which had been stolen from him. Had he always got as much as he claimed he would soon have been enormously enriched by the loss of his property! The commissioners were therefore under the necessity of drawing out a scale of charges for the guidance of the warden courts. The following are the prices fixed by this tribunal: – “Every Ox, above Four Year old, Fourty Shillings Sterling; every Cow, above Four Year old, Thirty Shillings Sterling; and every Young Cow, above Two Years old, Twenty Shillings Sterling; every other Beast, under Two Years old, Ten Shillings Sterling; every old Sheep, Six Shillings Sterling; and every Sheephogge, Three Shillings Sterling; every old Swine, above One Year old, Six Shillings Sterling; every young Swine, Two Shillings Sterling; every Goat, above One Year old, Five Shillings Sterling; every young Goat, Two Shillings Sterling; and every Double Toope to be valued after the rate of the Single.”⁴²

These prices, judged by the standard of the present day, seem absurdly low, but they may be accepted as representing the average rate of prices obtainable, three hundred years ago, for the various classes of stock mentioned.

It was the duty of the wardens to have the offenders in custody, against whom bills had been presented, in readiness to answer, and in case the bills were “fouled” he was bound to deliver them up to the opposite warden, by whom they were imprisoned until they had paid a single and two doubles, that is to say, treble the value of the estimated goods in the bill. To produce these men was generally the most difficult part of the warden’s duty. He could not keep them in confinement until the day of truce, for, independently they were sometimes persons of power and rank, their numbers were too great to be retained in custody. The wardens, therefore, usually took bonds from the Chief, kinsmen, or allies of the accused party, binding him or them to enter him prisoner within the iron gate of the warden’s castle, or else to make him forthcoming when called for. He against whom a bill was twice fouled, was liable to the penalty of death. If the offender endeavoured to rescue himself after being lawfully delivered over to the opposite warden, he was liable to the punishment of death, or otherwise at the warden’s pleasure, as being guilty of a breach of the assurance.⁴³

It would seem to have been customary on a day of truce to enumerate the various bills “fouled” on either side, and then to strike a balance, showing on which side most depredations had been committed. It occasionally happened that the claims of both parties were so numerous and complicated, the same person frequently appearing both as plaintiff and defendant, that it was deemed prudent to draw a veil over the whole proceedings, and give satisfaction to neither party, thus wiping out, as it were, with a stroke of the pen, and without further parleying, all the claims which had been lodged. This mode of procedure, arbitrary though it may appear, did not, as a rule, result in serious injustice being done to either party.

The offences dealt with were of a varied character. Reiving was only one of the many ways in which the Borderers sought to enrich themselves at the expense of their neighbours in the opposite March. They had an eye to the land as well as to the cattle. It was customary for them not only to pasture their stock on the enemy’s territory, but to sow corn, cut down wood, and go hunting and hawking for pleasure as well as profit. Sir Robert Cary, one of the most vigorous of the English wardens, was determined that hunting without leave should not be carried on in his wardenry. He wrote to the laird of Ferniherst, the warden opposite, explaining his views, but, “notwithstanding this letter,” he says, “within a month after they came and hunted as they used to do without leave, and cut down wood and carried it away. I wrote to the warden, and told him I would not suffer one other affront, but if they came again without leave they would dearly aby⁴⁴ it. For all this they would not be warned; but towards the end of the summer they came again to their wonted sports. I sent my two deputies with all speed they could make, and they took along with them such gentlemen as were in their way, with my forty horse, and about one of the clock they came to them, and set upon them; some hurt was done, but I gave special order they should do as little hurt, and shed as little blood, as they possibly could. They observed my command, only they broke all their carts, and took a dozen of the principal gentlemen that were there, and brought them to me to Witherington, where I lay. I made them welcome, and gave them the best entertainment I could. They lay in the castle two or three days, and so I sent them home – they assuring me that they would never again hunt without leave, which they did truly perform all the time.”⁴⁵

This firm, but kindly method, was entirely satisfactory; and, had the Borders only been blessed with a succession of Carys in the various wardenries, the probability is that Border reiving would never have attained such portentous dimensions.

But despite the masterful management of men like Cary, such questions as those we have mentioned continued to occupy the time and attention of the warden courts. The freebooters on the Border never considered too closely the minute shades of difference between meum and tuum, and were difficult to persuade that depasturing, or cutting wood in a neighbour’s plantation, was a matter of any real importance. They were at all times disposed to put a liberal construction on the words – “The earth is the Lord’s and the fulness thereof.” Their somewhat loose interpretation of this ancient Hebrew maxim occasioned them no end of vexation and trouble.

But the settlement of Border affairs on the day of truce did not interfere with the ancient custom which entitled the person who was robbed to follow his goods on what was called the hot-trod, and mete out summary punishment to the offender – provided he could overtake him. The warden also was enjoined, in the Act of 1563, to pursue and chase in hot-trod, unto such time or place as the fugitives or offender be apprehended, to bring him again within his own jurisdiction to be punished for the offence, “as appertaineth;” “and that without let, trouble, or impediment to be made or done to him by any of the inhabitants of that realm wherein he pursueth.” And if any person should make resistance to the said warden in the foresaid pursuit he was to be billed for, and delivered to the warden. In the following of the said chase, in the manner aforesaid, it was thought convenient, and ordained, that the pursuer shall, at the first town he cometh by of the opposite realm, or the first person he meeteth with, give knowledge of the occasion of his chase, and require him to go with him in the said pursuit. If the offender was caught red-handed he was executed; but if the desire for gain was stronger than the thirst for blood, then he was held at ransom. The prey was followed with hound and horn, hue and cry, the pursuers carrying on the point of their spears a lighted piece of turf.

The business of the warden courts was conducted with despatch. When all the bills had been either “fouled” or “cleared,” those who had been found guilty of “March Treason” were brought up for sentence. The lord warden called on him whose office it was to see the prisoners suffer, and thus addressed him: – “I command you in the Queen’s Majesty’s name that ye see execution done upon these prisoners, according to the Law of the Marches, at your peril.” Then addressing the prisoners he said: – “Ye that are adjudged by the Law of the Realm to die, remember that ye have but a short time to live in this world; therefore earnestly call to God, with penitent hearts, for mercy and forgiveness of your sinful lives; repent ye have broken God’s commandments, and be sorry therefor, and for that ye did not fear the breach and dangers of the Law, therefore your bodies must suffer the pain of death, provided to satisfy the reward of your Fact in this world; yet the salvation of your soul’s health for the world to come, stands in the great mercy of Almighty God: Wherefore do ye earnestly repent and ask mercy for your sins, now when ye are living, put your Trust to be saved by the merits of Christ’s passion; and think in your hearts if ye were able to recompence them ye have offended, ye would do it; and where you are not able, ask Forgiveness. Have such faith in God’s Mercy as Dismas the Thief and Man-Murderer had that hang at Christ’s Right hand, when he suffered his Passion for the Redemption of Mankind: Whose Faith was so great he should be saved, his Sins were remitted, tho’ he had but short time of Repentance, and he enjoyed Heaven. Therefore despair not in God’s Mercy, though your sins be great, for God’s Mercy exceedeth all his Works. Set apart all Vanities of this World, and comfort you in Heavenly things; and doubt not but, if ye so do, ye shall inherit Everlasting Joy in the Kingdom of Heaven. And thus I commit you to the Mercy of God, wishing your Deaths may be an Example to all Parents to bring up their Children in the Fear of God, and Obedience of the Laws of this Realm.”⁴⁶

With these suitable admonitions ringing in their ears, the condemned prisoners were led forth to execution.

The business of the court having been finished, the wardens retired after taking a courteous leave of each other.

These meetings, attended as they were by a large number of people, who came either on business or pleasure, were frequently broken up by sudden outbursts of tumult and disorder. Baughling, or brawling, was a common occurrence, and loud words and angry looks naturally led to more serious encounters. We have already noticed the incident of the Reidswire, but this was by no means an isolated case. In the month of July, 1585, at a day of truce between Sir John Foster and Ker of Ferniherst, Lord Russell, a young man of great promise, and of the most amiable disposition, was suddenly shot dead by an unknown hand. This lamentable incident gave rise to much bitterness of feeling on both sides of the Border. Foster wrote to Walsingham, saying, that he and the opposite warden had met for the redress of attempts committed on both sides, Russell being present to attend to particular causes of his own, “where it chanced a sudden accident and tumult to arise among the rascals of Scotland and England about a little pyckery among themselves, and we meaning no harm did sit the most of the day calling bills, and my Lord Russell among us. The said Lord Russell rose and went aside from us, with his own men, and there being in talk with a gentleman, was suddenly shot with a gun and slain in the midst of his own men, to the great discomfort of me and his poor friends in this country, and never a man either of England or Scotland but he. Alas! that the mischievous chance should happen for him to be killed with a shot, and none but him, which is the greatest discomfort that ever came upon me.”⁴⁷

No hint is here given of any suspicion that Ker of Ferniherst was implicated in the death of this young man. Hence we are surprised to find that, on the day after this letter was written, Sir John Foster drew up a statement in which he gives an entirely different complexion to the incident. He asserts that it was not an accident. “Had it been an accident,” he says, “or sudden breaking by rascals, as there was no such matter, the gentlemen of Scotland with their drums, fife, shot, and such as carried the ‘ensigne’ and ‘penseller,’ would have tarried with the warden; so that it appeareth plainly it was a ‘pretended matter’ beforehand, for the wardens sitting quietly calling their bills, the warden of England thinking no harm, the party of Scotland seeing the time serve for their ‘former desire,’ suddenly broke, striking up an alarm with sound of drum and fife, and gave the charge upon us – in which charge the Lord Russell was cruelly slain with shot, and so divers gentlemen of Scotland with their footmen and horsemen and whole force, followed and maintained their chase four miles within the Realm of England, and took sundry prisoners and horses, and carried them into Scotland, which they deny to deliver again.”⁴⁸

This statement contradicts, in almost every particular, the asseverations deliberately made in the letter written the day before, and shows that even a gentleman in Sir John Foster’s high position, with a deservedly great reputation for fair dealing, was capable, when occasion demanded, of twisting facts, or even inventing them, to suit his own ends, or the interest of the government he represented. It has been suggested that the English secretary, knowing that Ferniherst was an intimate friend of Arran, saw that by laying the blame of Lord Russell’s death on the shoulders of the former, he might thereby procure the disgrace of this hated minister. Be this as it may, such conflicting assertions, made by the same person almost at the same time, should lead us to accept with a modified confidence other statements of a similar kind, as the spirit of party is no friend to the love of truth.

But despite the drawbacks and dangers attaching to such gatherings for the settlement of Border affairs, the day of truce was an institution of great public utility. It is difficult to see how, apart from such an arrangement, even the semblance of civilized life could have been maintained. The Borders really constituted an imperium in imperio, and the wardens, when presiding over their monthly convention, were to all intents and purposes absolute rulers within their own prescribed domain. It was generally found that when warden courts, or days of truce, were regularly held, good rule and order, at least judged by the ordinary Border standard, were well maintained throughout the entire district.