Chapter IV: Part 4

Each house had its record of famous marriages. There was the story of how Lord Westmoreland sought the hand of the heiress of Child, the banker, and was repulsed with “Your blood, my Lord, is good, but money is better.” My Lord and the young lady were speedily galloping towards the border, while Mr. Child “breathed hot and instant on their trace.” He had caught them too, but his leader was shot down or his carriage disabled by some trick (the legends vary), and he was too late after all. He made the best of it, of course, and in due time Lady Sophia Fane, daughter of the marriage, inherited grandpa’s fortune and his bank at Temple Bar. Odder still was the marriage, in 1826, of Edward Gibbon Wakefield to Ellen Turner. It was brought about by an extraordinary fraud, and a week after the far from happy couple were run to earth at Calais by the bride’s relatives. They “quoted William and Mary upon me till I was tired of their Majesties’ names,” was Wakefield’s mournful excuse for submitting to a separation. He was afterwards tried for abduction, found guilty, and sentenced to three years’ imprisonment; while a special Act of Parliament (7 and 8 Geo. IV. c. 66) declared the marriage null and void. Wakefield ended strangely as a political economist. Is not his “theory of colonisation” writ large in all the text books? A pair of Lord High Chancellors must conclude our list. In November 1772, John Scott, afterwards Lord Eldon, was married at Blackshiels, in East Lothian, to Bessie Surtees, the bridegroom being but twenty-one. Though the Rev. Mr. Buchanan, minister of an Episcopal congregation at Haddington, officiated, it was a runaway match and an irregular marriage. Lord Erskine, about October 1818, was wedded at the “King’s Head,” Springfield, to Miss Mary Buck (said to have been his housekeeper). He was about seventy, and, one fears, in his dotage. A number of extravagant legends still linger as to the ceremony. He was dressed in woman’s clothes, and played strange pranks. He and his intended spouse had with them in the coach a brace of merry-begots (as our fathers called them), over whom he threw his cloak during the ceremony in order to make them his heirs. It is still a vulgar belief in the North that if the parents of children born out of wedlock are married, the offspring, to be legitimised, must be held under their mother’s girdle through the nuptial rites. Now, by the law of Scotland, such a marriage produces the effect noted; but the presence or absence of the children is void of legal consequence. As far as is known, Erskine had one son called Hampden, born December 5, 1821, and no other by Mary Buck. It is worth noting that Robert Burns, on his road to Carlisle in 1787, fell in by the way “with a girl and her married sister”; and “the girl, after some overtures of gallantry on my side, sees me a little cut with the bottle, and offers to take me in for a Gretna Green affair.” Burns was already wed, Scots fashion, to Jean Armour. And the thing did not come off, so that bigamy is not to be reckoned among the poet’s sins.

They were rather sordid affairs in the end, those Gretna Green marriages. So, at least, the Reverend James Roddick, minister of the parish, writing of the place in 1834 in the _New Statistical Account_, would have us believe. There were three or four hundred marriages annually: “the parties are chiefly from the sister kingdom and from the lowest rank of the population.” A number came from Carlisle at fair-time, got married, spent a few days together, and then divorced themselves. Competition had brought down the priest’s fee to half-a-crown, and every tippling-house had its own official. Nay, the very roadman on the highway that joined the kingdoms pressed his services on all and sundry! And then the railway came to Gretna, and you had the spectacle of “priests” touting on the platform. Alas for those shores of old Romance! In 1856, Lord Brougham’s Act (19 & 20 Vict. cap. 96), made well-nigh as summary an end of Gretna as Lord Hardwicke’s had of the Fleet unions. It provided that at least one of the parties to an irregular Scots marriage must be domiciled in Scotland, or have resided there during the twenty-one days immediately preceding the espousals; else were they altogether void. What an enemy your modern law-giver is to the picturesque! And what an entertaining place this world must once have been!

The Border Law

The Border Country--Its Lays and Legends--The Wardens and Other
Officers--Johnie Armstrong--Merrie Carlisle--Blackmail--The Border
Chieftain and His Home--A Raid--“Hot-trod”--“To-names”--A Bill
of Complaint--The Day of Truce--Business and Pleasure--“Double
and Salffye”--Border Faith--Deadly Feud--The Story of Kinmont
Willie--The Debateable Land--The Union of the Crowns and the End of
Border Law.

_Leges marchiarum_, to wit, the Laws of the Marches; so statesmen and lawyers named the codes which said, though oft in vain, how English and Scots Borderers should comport themselves, and how each kingdom should guard against the other’s deadly unceasing enmity. I propose to outline these laws, and the officials by whom and courts wherein they were enforced.

But first a word as to country and people. From Berwick to the Solway--the extreme points of the dividing line between North and South Britain--is but seventy miles in a crow’s flight. But trace its windings, and you measure one hundred and ten. Over more than half of this space the division is arbitrary. It happed where the opposing forces balanced. The Scot pushed his way a little farther south here, was pushed back a little farther north there; and commissioners and treaties indelibly marked the spots. The conflict lasted over three centuries, and must obviously be fiercest on the line where the kingdoms met. If it stiffened, yet warped, the Scots’ character, and prevented the growth of commerce and tilth and comfort in Scotland proper, what must have been its effect on the Scots Borderer, ever in the hottest of the furnace? The weaker, poorer, smaller kingdom felt the struggle far more than England, yet the English were worse troubled than the Scots Borders: being the richer, they were the more liable to incursion; their dalesmen were not greatly different from other Englishmen; they were kept in hand by a strong central authority; they had thriving towns and a certain standard of wealth and comfort. Now, the Scots clansmen developed unchecked; so it is mainly from them that we take our ideas of Border life.

The Border country is a pleasant pastoral land, with soft, rounded hills, and streams innumerable, and secluded valleys, where the ruins of old peels or feudal castles intimate a troubled past. That past, however, has left a precious legacy to letters, for the Border ballads are of the finest of the wheat. They preserve, as only literature can, the joys and sorrows, the aspirations, hopes and fears, and beliefs of other days and vanished lives. They are voices from the darkness, yet we oft feel:

He had himself laid hand on sword
He who this rime did write!

The most of them have no certain time or place. Even the traditional stories help but little to make things clear. Yet they tell us more, and tell it better, than the dull records of the annalists. We know who these men really were--a strong, resolute race, passionate and proud, rough and cruel, living by open robbery, yet capable of deathless devotion, faithful to their word, hating all cowards and traitors to the death; not without a certain respect and admiration for their likes across the line, fond of jest and song, equal on occasion to a certain rude eloquence; and, before all, the most turbulent and troublesome. The Scots Borderers were dreaded by their own more peaceful countrymen; and to think of that narrow strip of country, hemmed in by the Highlands to the north and the Border clans on the south, is to shudder at the burden _it_ had to endure. For a race, whatever its good qualities, that lives by rapine, is like to be dangerous to friends as well as foes. Some Border clans, as the Armstrongs and the Elliots, were girded at as “always riding”; and they were not particular as to whom they rode against. Nay, both governments suspected the Borderers of an inexplicable tenderness for their neighbours. When they took part in a larger expedition, they would attack each other with a suspicious lack of heart. At best they were apt to look at war from their own point of view, and fight for mere prisoners or plunder.

To meet such conditions the Border Laws were evolved. They were administered in chief by special officers called Wardens. Either Border was portioned out into three Marches: the East, the Middle, and the West (the Lordship of Liddesdale was included in the Scots Middle March, but sometimes it had a special Keeper of almost equal dignity with a Warden.) Each of the three Scots Wardens had a hundred pounds of yearly fee; he could appoint deputies, captains of strongholds, clerks, sergeants, and dempsters; he could call out the full force of his district to invade or beat back invasion; he represented the Sovereign, and was responsible for crimes. He must keep the Border clans in order by securing as hostages several of their most conspicuous sons, and either these were quartered on nobles on the other side of the Firth, or they were held in safer keeping in the king’s castles. He also held Justice Courts for the trial of Scots subjects accused of offences against the laws of their own country. He was commonly a great noble of the district, his office in early times being often hereditary; and, as such noble, he had power of life and death, so that the need for holding special courts was little felt. A pointed Scots anecdote pictures an angry Highlander “banning” the Lords of Session as “kinless loons,” because, though some were relatives, they had decided a case against him. These Wardens were _not_ “kinless loons,” and they often used their office to favour a friend or depress a foe. On small pretext they put their enemies “to the horn,” as the process of outlawry (by trumpet blast) was called. True, the indifference with which those enemies “went to the horn” would scandalise the legal pedants.

Sometimes a superior officer, called “Lieutenant,” was sent to the Borders; the Wardens were under him; he more fully represented the royal power. Now and again the Sovereign himself made a progress, administering a rough and ready justice, and so “dantoning the thieves of the Borders, and making the rush bush keep the cow.” So it was said of James V.’s famous raid in 1529. The chief incident was the capture of Johnie Armstrong of Gilnockie, the ruins of whose picturesque tower at the Hollows still overlook the Esk. Gilnockie came to meet his King with a great band of horsemen richly apparelled. He was captain of Langholm Castle, and the ballad tells how he and his companions exercised themselves in knightly sports on Langholm Lee, whilst “The ladies lukit frae their loft windows. ‘God bring our men well hame agen!’” the ladies said; and their apprehensions were more than justified, for Johnie’s reception was not so cordial as he expected. “What wants yon knave that a King should have?” asked James in angry amaze, as he ordered the band to instant execution. Gilnockie and company were presently strung up on some convenient yew-trees at Carlenrig, though, in accordance with romantic precedent, one is said to have escaped to tell the tale. Many of Johnie’s name, among them Ill Will Armstrong, tersely described as “another stark thieff,” went to their doom; but the act, however applauded at Edinburgh, was bitterly condemned on the Borders. Gilnockie only plundered the English, it was urged, and the King had caught him by a trick unworthy a Stuart. The country folk loved to tell how the dule-trees faded away, and they loved to point out the graves of the Armstrongs in the lonely churchyard. But the stirring ballad preserves the name better than all else. It unblushingly commends Gilnockie’s love of honesty, his generosity, his patriotism, and directly accuses his Sovereign of treachery, in which accusation there is perhaps some truth. Anyhow, his execution was the violent act of a weak man, and had no permanent effect.

The Wardens had twofold duties: first, that of defence against the enemy; second, that of negotiation in times of peace with their mighty opposites. Thus the Border laws were part police and part international, and were administered in different courts. Offences of the first class were speaking or conferring with Englishmen without permission of the King or the Warden, and the warning Englishmen of the Scots’ alertness in the matter of forays. In brief, aiding, abetting, or in any way holding intercourse with the “auld enemy” was march treason (to adopt a convenient English term).

In England the Wardens were finally chosen for their political and military skill, not because of their territorial position. Now, the Warden of the East Marches was commonly Governor and Castellan of Berwick. The castle of Harbottell was allotted to the Warden of the Middle Marches; whilst for the West, Carlisle, where again Governor and Warden were often one, was the appointed place. Sometimes a Lord warden-general was appointed, sometimes a Lieutenant, but the Wardens were commonly independent. At the Warden courts Englishmen were punished for march treason, a branch of which was furnishing the Scots with articles of merchandise or war. And here I note that Carlisle throve on this illegal traffic. At Carlisle Fair the Carlisle burgher never asked the nationality of man or beast. The first got his money or its equivalent; the second was instantly passed through the hands of butcher and skinner. Though the countryside were wasted, the burghers lay safe within their strong walls, and waxed fat on the spoils of borderman and dalesman alike. Small wonder the city was “Merrie Carlisle.” The law struck with as little force against blackmail, or protection money, which it was an offence to pay to any person, Scots or English. From this source, Gilnockie and others, coining the terror of their name, drew great revenue. Another provision was against marriage with a Scotswoman without the Warden’s consent, for in this way traitors, or “half-marrows,” arose within the gate. Complete forms are preserved of the procedure at those Warden courts. There were a grand jury and an ordinary jury, and the Warden acted very much as a judge of to-day. One or two technical terms I shall presently explain. Here I but note that the criminal guilty of march treason was beheaded “according to the customs of the marches.”

The international duties of the Wardens were those of conference with each other, and the redressing of approved wrongs, which wrongs were usually done in raids or forays. Of these I must now give some account. The smaller Border chieftain dwelt in a peel tower, stuck on the edge of a rock or at the break of a torrent. It was a rude structure with a projecting battlement. A stair or ladder even held its two stories together, and about it lay a barnkin--a space of some sixty feet encompassed by a wall; the laird’s followers dwelling in huts hard by. For small parties the tower was self-sufficient in defence, and if it lay in the way of a hostile army, the laird was duly warned by scouts or beacon fires, and withdrew to some fastness of rock or marsh, carrying his few valuables, driving his live stock before him, leaving the foeman nothing to burn and nothing to take away. With his followers he lived on milk, meat, and barley, together with the spoils of the forest and stream. The marchmen are reported temperate--no doubt from necessity. Their kine, recruited by forays, were herded in a secluded part of the glen, and when the herd waxed small, and the laird was tired of hunting, and his women lusted after new ornament, and old wounds were healed, and the retainers were growing rusty, then it was time for a raid. Was the laird still inactive? In struck his lady’s sharper wit, and the story goes that Wat Scott of Harden was ever and anon served with a dish which, being uncovered, revealed a pair of _polished_ spurs. Thus his wife, Mary Scott, the “Flower of Yarrow”--a very practical person, despite her romantic name--urged him to profitable rapine. Well: his riders were bidden to a trysting-place; and hither, armed in jacks (which are leathern jerkins plated with iron) and mounted on small but active and hardy horses, they repaired at evenfall. The laird and some superior henchmen wore also sleeves of mail and steel bonnets; all had long lances, swords, axes, and in later times such rude firearms--serpentines, half-haggs, harquebusses, currys, cullivers, and hand-guns are mentioned--as were to be had. In the mirk night the reivers crossed the Border; and to do this unseen was no easy matter. The whole line from Berwick to Carlisle was patrolled by setters and searchers, watchers and overseers, having sleuth-hounds to track the invader; also, many folk held lands by the tenure of cornage, and by blowing horns must warn the land of coming raids. Where the frontier line was a river the fords were carefully guarded; those held unnecessary were staked up; narrow passes were blocked in divers ways, so that chief element in Border craft was the knowledge of paths and passes through moorland and moss, and of nooks and coigns of security deep in the mountain glens.

Our party crosses in safety and makes to one of those hidden spots, as near as may be to the scene of action. Here it rests and refreshes itself during the day, and next night it swoops down on its appointed foray. The chief quest was ever cattle, which were eatable and portable. But your moss-trooper was not particular. He took everything inside and outside house and byre. Many lists are preserved of things lifted, whereof one notes a shroud and children’s clothes. A sleuth-hound was a choice prize. Possibly its abduction touched the Borderer’s sense of humour. Scott of Harden, escaping from a raid, with “a bow of kye and a bassen’d (brindled) bull,” passed a trim haystack. He sighed as he thought of the lack of fodder in his own glen. “Had ye but four feet ye should not stand lang there,” he muttered as he hurried onwards. Not to him, not to any rider was it given to tarry by the way, for the dalesmen were not the folk to sit down under outrage. The warder, as he looked from the “Scots gate” of Carlisle castle, and saw the red flame leaping forth into the night from burning homestead or hamlet, was quick to warn the countryside that a reiving expedition was afoot. Even though the prey were lifted unobserved, that only caused a few hours’ delay, and soon a considerable body, carrying a lighted piece of turf on a spear, as a sign, was instant on the invader’s trace. This “following of the fraye” was called “hot-trod,” and was done with hound and horn, and hue and cry. Certain privileges attached to the “hot-trod.” If the offender was caught red-handed he was executed; or, if thrift got the better of rage, he was held to ransom. As early as 1276 a curious case is reported from Alnwick, of a Scot attacking one Semanus, a hermit, and taking his clothes and one penny! Being presently seized, the culprit was beheaded by Semanus in person, who thus recovered his goods and took vengeance of his wrong. A later legend illustrates the more than summary justice that was done. The Warden’s officers having taken a body of prisoners, asked my Lord his pleasure. His Lordship’s mind was “ta’en up wi’ affairs o’ the state,” and he hastily wished the whole set hanged for their untimely intrusion. Presently he was horrified to find that his imprecations had been taken as literal commands, and literally obeyed. Even if the reivers gained their own border, the law of “hot-trod” permitted pursuit within six days of the offence. The pursuer, however, must summon some reputable man of the district entered to witness his proceedings. Nay, the inhabitants generally must assist him--at least, the law said so.

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,
And a vow to God mayd he,
That he wolde hunte in the mountayns
Off Cheviot within dayes thre,
In the mauger of doughty Douglas,
And all that ever with him be.

Douglas took a summary mode of redress where a later and tamer owner had lodged his bill. In a common case of theft, if the offender were not present (the jury would seem to have tried cases in absence), the Warden must produce him at the next Day of Truce. Indeed, whilst the jury was deliberating, the officials were going over the bills “filed” on the last Day, and handing over each culprit to the opposite Warden; or sureties were given for him; or the Warden delivered his servant as pledge. If the pledge died, the body was carried to the next Warden Court.

The guilty party, being delivered up, must make restitution within forty days or suffer death, whilst aggravated cases of “lifting” were declared capital. In practice a man taken in fight or otherwise was rarely put to death. Captive and captor amicably discussed the question of ransom. That fixed, the captive was allowed to raise it; if he failed he honourably surrendered. The amount of restitution was the “Double and Salffye,” to wit, three times the value of the original goods, two parts being recompense, and the third costs or expenses. Need I say that this triple return was too much for Border honesty? Sham claims were made, and these, for that they obliged the Wardens “to speire and search for the thing that never was done,” were rightly deemed a great nuisance. As the bills were sworn to, each false charge involved perjury; and in 1553 it was provided that the rascal claimants should be delivered over to the tender mercies of the opposite Warden. Moreover, a genuine bill might be grossly exaggerated (are claims against insurance and railway companies always urged with accuracy of detail?). If it were disputed, the value was determined by a mixed jury of Borderers.

I have had occasion to refer to Border faith. In 1569 the Earl of Northumberland was implicated in a rising against Elizabeth. Fleeing north, he took refuge with an Armstrong, Hector of Harelaw, who sold him to the Regent Murray. Harelaw’s name became a byword and a reproach. He died despised and neglected; and “to take Hector’s cloak” was an imputation of treachery years after the original story had faded. Thus, in Marchland the deadliest insult against a man was to say that he had broken faith. The insult was given in a very formal and deliberate manner, called a Baugle. The aggrieved party procured the glove or picture of the traitor, and whenever there was a meeting (a Day of Trace was too favourable an opportunity to be neglected) he gave notice of the breach of faith to friend and foe, with blast of the horn and loud cries. The man insulted must give him the lie in his throat, and a deadly combat ensued. The Laws of the Marches attempted to substitute the remedy by bill, that the matter might not “goe to the extremyte of a baughle,” or where that was impossible, to fix rules for the thing itself. Or, the Wardens were advised to attend, with less than a hundred of retinue, to prevent “Brawling, buklinge, quarrelinge, and bloodshed.” Such things were a fruitful source of what a Scots Act termed “the heathenish and barbarous custom of Deadly Feud.” When one slew his fellow under unfair conditions, the game of revenge went see-sawing on for generations. The Border legislators had many ingenious devices to quench such strife. A Warden might order a man complained of to sign in solemn form a renunciation of his feud; and if he refused, he was delivered to the opposite Warden till he consented. In pre-Reformation days the church did something by enjoining prayer and pilgrimage. A sum of money (Assythement) now and again settled old scores; or there might be a treaty of peace cemented by marriage. Sometimes, again, there was a fight by permission of the Sovereign. (_Cf._ the parallel case of the clan-duel in the _Fair Maid of Perth_.) Still, prearranged single combats, duels in fact, were frequent on the Border. Turner, or Turnie Holme, at the junction of the Kirshope and Liddel, was a favourite spot for them.

And now business and pleasure alike are ended, and the day (fraught with anxiety to official minds) is waning fast. Proclamation is made that the multitude may know the matters transacted. Then it is declared that the Lord Wardens of England and Scotland, and Scotland and England (what tender care for each other’s susceptibilities!) appoint the next Day of Truce, which ought not to be more than forty days hence, at such and such a place. Then, with solemn salutations and ponderous interchange of courtesy, each party turns homeward. As noted, the Truce lasted till the next sunrise. As the nations were at peace (else had there been no meeting), this recognised the fact that the Borders were always, more or less, in a state of trouble. Also it prevented people from violently righting themselves forthwith. A curious case in 1596, where this condition was broken, gave rise to a Border foray of the most exciting kind, commemorated in the famous ballad of _Kinmont Willie_. A Day of Truce had been held on the Kershope Burn, and at its conclusion Willie Armstrong of Kinmont, a noted Scots freebooter, rode slowly off, with a few companions. Some taunt, or maybe the mere sight of one who had done them so much wrong, was too much for the English party, and Kinmont was speedily laid by the heels in Carlisle Castle. Buccleuch was Keeper of Liddisdale. He had not been present at the Day of Truce; but when they told him that Kinmont had been seized “between the hours of night and day,” he expressed his anger in no uncertain terms:

He has ta’en the table wi’ his hand,
He garr’d the red wine spring on hie.

* * * *

And have they ta’en him, Kinmont Willie,
Against the truce of Border tide?
And forgotten that the bauld Buccleuch
Is keeper here on the Scottish side?

Negociations failing to procure redress, Buccleuch determined to rescue Kinmont himself. In the darkness of a stormy night he and his men stole up to Carlisle, broke the citadel, rescued Kinmont, and carried him off in safety, whilst the English lawyers were raising ingenious technical justifications (you can read them at length in the collection of Border Papers) of the capture. Those same papers show that the ballad gives the main features of the rescue with surprising accuracy. But I cannot linger over its cheerful numbers. The event might once have provoked a war, but the shadow of the Union was already cast. James would do nothing to spoil the splendid prize almost within his grasp, and Elizabeth’s statesmen were not like to quarrel with their future master.

Half a century before the consummation one great cause of discord had been removed. From the junction of the Liddel and Esk to the Solway was known as the Debateable Land, a sort of No-Man’s Land, left in doubt from the time of Bruce. Both nations pastured on it from sunrise to sunset, but in the night any beasts left grazing were lawful prey to the first comer. Enclosures or houses on it could be destroyed or burned without remedy. Apparently the idea was to make it a “buffer State” between the two kingdoms. It was, however, a thorn in the flesh to each, for the Bateables, as the in-dwellers were called, were broken men, and withal the most desperate ruffians on the Border. In 1552 a joint Commission divided the Debateable Land between England and Scotland. The Bateables were driven out, and a dyke was built as boundary line. All the same, here was, for many years, the wildest in the whole wild whirlpool; so that long after the Union, when somebody told King James of a cow which, taken from England to Scotland, had broken loose and got home of itself, the British Solomon was sceptical. It gravelled him, he confessed, to imagine any four-footed thing passing unlifted through the Debateable Land.

With the death of Elizabeth (1603) came the Union of the Crowns, and the Scots riders felt their craft in danger, for they forthwith made a desperate incursion into England, with some idea (it is thought) of staying the event. But they were severely punished, and needs must cower under the now all-powerful Crown. The appointment of effective Wardens presently ceased. In 1606, by the Act 4 Jac. I., cap. 1, the English Parliament repealed the anti-Scots laws, on condition that the Scots Parliament reciprocated; and presently a kindred measure was touched with the sceptre at Edinburgh. The administration of the Border was left to the ordinary tribunals, and the _Leges Marchiarum_ vanished to the Lumber Room.

The Serjeant-at-Law

The Black Patch on the Wig--A King’s Serjeant--The Old English
Law Courts--The Common Pleas--Queen’s Counsel--How Serjeants
were Created--Their Feasts--Their Posies--Their Colts--Chaucer’s
Serjeant-at-Law--The Coif--The Fall of the Order--Some Famous
Serjeants.

You have no doubt, at some time or other, walked through the Royal Courts of Justice and admired the Judges in their scarlet or other bravery. One odd little detail may have caught your eye: a black patch on the top differences the wig of the present (1898) Master of the Rolls from those of his brethren. It signifies that the wearer is a Serjeant-at-Law, and when he goes to return no more, with him will probably vanish the Order of the Coif. Verily, it will be the “end o’ an auld sang,” of a record stretching back to the beginning of English jurisprudence, of an order whose passing had, at one time, seemed as the passing of the law itself. Here in bare outline I set forth its ancient and famous history. And, first, as to the name. Under the feudal system land was held from the Crown upon various tenures. Sometimes special services were required from the holders; these were called Serjeants, and a tenure was said to be by Serjeanty. Special services, though usually military, now and again had to do with the administration of justice. A man enjoyed his plot because he was coroner, keeper of the peace, summoner, or what not; and, over and above the land, he had the fees of the office. A few offices, chiefly legal, came to have no land attached--were only paid in fees. Such a business was a Serjeanty in gross, or at large, as one might say. Again, after the Conquest, whilst the records of our law courts were in Latin, the spoken language was Norman-French--a fearful and wondrous tongue that grew to be--“as ill an hearing in the mouth as law-French,” says Milton scornfully--and indeed Babel had scarce matched it. But from the first it must have been a sore vexation to the thick-witted Saxon haled before the tribunal of his conquerors. He needs must employ a _counter_, or man skilled in the _conter_, as the pleadings were called. The business was a lucrative one, so the Crown assumed the right of regulation and appointment. It was held for a Serjeanty in gross, and its holders were _servientes regis ad legem_. The word _regis_ was soon omitted except as regards those specially retained for the royal service. The literal translation of the other words is Serjeants-at-law, still the designation of the surviving fellows of the order. The Serjeant-at-law was appointed, or, in form at least, commanded to take office by writ under the Great Seal. He was courteously addressed as “you,” whilst the sheriff was commonly plain “thou” or “thee.” The King’s or Queen’s Serjeants were appointed by letters patent; and though this official is extinct as the dodo, he is mentioned after the Queen’s Attorney-General as the public prosecutor in the proclamation still mumbled at the opening of courts like the Old Bailey.

Now, in the early Norman period the _aula regis_, or Supreme Court, was simply the King acting as judge with the assistance of his great officers of state. In time there developed therefrom among much else the three old common law courts; whereof the Common Pleas settled the disputes of subjects, the King’s Bench, suits concerning the King and the realm, the Exchequer, revenue matters. Though the last two by means of quaint fictions afterwards acquired a share of private litigation, yet such was more properly for the Court of Common Pleas. It was peculiarly the Serjeants’ court, and for many centuries, up to fifty years ago, they had the exclusive right of audience. Until the Judicature Acts they were the body of men next to the judges, each being addressed from the bench as “Brother,” and from them the judges must be chosen, also until 1850 the assizes must be held before a judge or a Serjeant of the coif.

A clause in Magna Charta provided that the Common Pleas should not follow the King’s wanderings, but sit in a fixed place; this fixed place came to be near the great door of the Hall at Westminster. With the wind in the north the spot was cold and draughty, so after the Restoration some daring innovator proposed “to let it (the Court) in through the wall into a back room which they called the treasury.” Sir Orlando Bridgeman, the Chief Justice, would on no account hear of this. To move it an inch were flagrant violation of Magna Charta. Might not, he darkly hinted, all its writs be thus rendered null and void? Was legal pedantry ever carried further? In a later age the change was made without comment, and in our own time the Common Pleas itself has gone to the Lumber Room. No doubt this early localising of the court helped to develop a special Bar. Other species of practitioners--barristers, attorneys, solicitors--in time arose, and the appointment of Queen’s Counsel, of whom Lord Bacon was the earliest, struck the first real blow at the Order of the Coif; but the detail of such things is not for this page. In later days every Serjeant was a more fully developed barrister, and then and now, as is well known, every barrister must belong to one of the four Inns of Court--the two Temples, Gray’s Inn, and Lincoln’s Inn to wit, whose history cannot be told here; suffice it to say they were voluntary associations of lawyers, which gradually acquired the right of calling to the Bar those who wished to practise.

Now, the method of appointment of Serjeants was as follows: The judges, headed by the Chief Justice of the Common Pleas, picked out certain eminent barristers as worthy of the dignity, their names were given in to the Lord Chancellor, and in due time each had his writ, whereof he formally gave his Inn notice. His House entertained him at a public breakfast, presented him with a gold or silver net purse with ten guineas or so as a retaining fee, the chapel bell was tolled, and he was solemnly rung out of the bounds. On the day of his call he was harangued (often at preposterous length) by the Chief Justice of the King’s Bench, he knelt down, and the white coif of the order was fitted on his head; he went in procession to Westminster and “counted” in a real action in the Court of Common Pleas. For centuries he did so in law-French. Lord Hardwicke was the first Serjeant who “counted” in English. The new-comer was admitted a member of Serjeants’ Inn, in Chancery Lane, in ancient times called Farringdon Inn, whereof all the members were Serjeants. Here they dined together on the first and last days of term; their clerks also dined in hall, though at a separate table--a survival, no doubt, from the days when the retainer feasted, albeit “below the salt,” with his master. Dinner done and the napery removed, the board of green cloth was constituted, and under the presidency of the Chief Judge the business of the House was transacted. There was a second Serjeants’ Inn in Fleet Street, but in 1758 its members joined the older institution in Chancery Lane. When the Judicature Acts practically abolished the order, the Inn was sold and its property divided among the members, a scandalous proceeding and poor result of “the wisdom of an heep of lernede men”!

The Serjeant’s feast on his appointment was a magnificent affair, _instar coronationis_, as Fortescue has it. In old times it lasted seven days; one of the largest palaces in the metropolis was selected, and kings and queens graced its quaint ceremonial. Stow chronicles one such celebration at the call of eleven Serjeants, in 1531. There were consumed “twenty-four great beefes, one hundred fat muttons, fifty-one great veales, thirty-four porkes,” not to mention the swans, the larkes, the “capons of Kent,” the “carcase of an ox from the shambles,” and so forth. One fancies these solids were washed down by potations proportionately long and deep. And there were other attractions and other expenses. At the feast in October 1552, “a standing dish of wax representing the Court of Common Pleas” was the admiration of the guests; again, a year or two later, it is noted that each Serjeant was attended by three gentlemen selected by him from among the members of his own Inn to act as his sewer, his carver, and his cup-bearer. These Gargantuan banquets must have proved a sore burden: they were cut down to one day, and, on the union of the Inns in 1758, given up as unsuited to the newer times.

One expense remained. Serjeants on their call must give gold rings to the Sovereign, the Lord Chancellor, the judges, and many others. From about the time of Elizabeth mottoes or “posies” were engraved thereon. Sometimes each Serjeant had his own device, more commonly the whole call adopted the same motto, which was usually a compliment to the reigning monarch or an allusion to some public event. Thus, after the Restoration the words ran: _Adeste Corolus Magnus_. With a good deal of elision and twisting the Roman numerals for 1660 were extracted from this, to the huge delight of the learned triflers. _Imperium et libertas_ was the word for 1700, and _plus quam speravimus_ that of 1714, which was as neat as any. The rings were presented to the judges by the Serjeant’s “colt,” as the barrister attendant on him through the ceremony was called (probably from _colt_, an apprentice); he also had a ring. In the ninth of Geo. II. the fourteen new Serjeants gave, as of duty, 1409 rings, valued at £773. That call cost each Serjeant nearly £200. This ring-giving continued to the end; another custom, that of giving liveries to relatives and friends, was discontinued in 1759. In mediæval times the new Serjeants went in procession to St. Paul’s, and worshipped at the shrine of Thomas à Becket; then to each was allotted a pillar, so that his clients might know where to find him. The Reformation put a summary end to the worship of St. Thomas, but the formality of the pillar lingered on till Old St. Paul’s and Old London blazed in the Great Fire of 1666.

The mediæval lawyer lives for us to-day in Chaucer’s famous picture:

A Sergeant of Lawe, war and wys,
That often hadde ben atte parvys,
Ther was also, ful riche of excellence.
Discret he was, and of great reverence:
He semede such, his wordes weren so wise,
Justice he was ful often in assise,
By patente, and by pleyn commissioun;
For his science, and for his heih renoun,
Of fees and robes hadde he many oon.
So gret a purchasour was nowher noon.
Al was fee symple to him in effecte,
His purchasyng mighte nought ben enfecte.
Nowher so besy a man as he ther nas,
And yit he seemede besier than he was.
In termes hadde he caas and domes alle;
That fro the tyme of kyng William were falle.
Therto he couthe endite, and make a thing,
Ther couthe no wight pynche at his writyng;
And every statute couthe he pleyn by roote.
He rood but hoomly in a medlé coote,
Gird with a seynt of silk, with barres smale
Of his array telle I no lenger tale.

How lifelike that touch of the fussy man, who “seemede besier than he was”! But each line might serve as text for a long dissertation! The old court hours were early: the judges sat from eight till eleven, when your busy Serjeant would, after bolting his dinner, hie him to his pillar where he would hear his client’s story, “and take notes thereof upon his knee.” The parvys or pervyse of Paul’s--properly, only the church door--had come to mean the nave of the cathedral, called also “Paul’s Walk,” or “Duke Humphrey’s Walk,” from the supposed tomb of Duke Humphrey that stood there. In Tudor times it was the great lounge and common newsroom of London. Here the needy adventurer “dined with Duke Humphrey,” as the quaint euphemism ran; here spies garnered in popular opinion for the authorities. It was the very place for the lawyer to meet his client, yet had he other resorts: the round of the Temple Church and Westminster are noted as in use for consultations.