Owing to the peculiar circumstances in which the Borders were placed, it was found necessary, for the preservation of order, and the detection and punishment of crime, to appoint special officers, or wardens, armed with the most extensive powers. On either side of the Border there were three Marches, lying opposite each other, called the East, West, and Middle Marches. The wardens were, as a general rule, officers of high rank, holding special commissions from the Crown. The English government had little difficulty in finding gentlemen of high station and proved ability to undertake the duties of such an office; but in Scotland the King was considerably circumscribed in his choice, as the Border Chiefs were accustomed to carry things with a high hand, and in any arrangements relating to the management of affairs in their own districts, their wishes and interestshad, perforce, to be respected. The office of warden was regarded as belonging, by a kind of prescriptive or hereditary right, to one or other of the more prominent and powerful Border families. This policy was fraught with many disadvantages, and, it must be frankly admitted, produced the very evils it was designed to suppress. The Scottish wardens had other objects in view besides the maintenance of a certain semblance of law and order in the districts over which they ruled. They seldom lost sight of their own pecuniary interests, and frequently prostituted their high office to secure their own ends. The wardens themselves were often the principal offenders.
In the East March the warden was most generally either an Earl of Home or a Ker of Cessford. The Middle March was long under the supervision of the Earls of Bothwell and the Lords of Buccleuch. The West March was usually represented either by a Johnstone or a Maxwell.
The Scottish wardens, though invested with the most arbitrary powers, found it politic to enter into bonds of alliance with the neighbouring Chiefs, in order not only to increase their influence and power within their own wardenries, but to add to their authority when called upon to deal with questions of a more general nature. This fact reveals unmistakably the weakness of the central government of thecountry at this period, and indicates the important part which was played by the nobility in the administration of the affairs of the nation.
Several of these “Bonds” have been preserved. Some of them are too lengthy for quotation, but the following one—which is comparatively brief—may be taken as a fair sample of the whole. It is subscribed by the Lairds of Buccleuch, Hunthill, Bon-Jeddart, Greenhead, Cavers, and Redheugh, in favour of Sir Thomas Ker of Fernihirst, and runs as follows:—“We undersigned, inhabitants of the Middle March of this realm opposite England, understanding how it has pleased the King’s majesty our sovereign lord to make and constitute Sir Thomas Ker of Fernihirst Knight his Highness warden and justice over all the Middle March, and acknowledging how far we are in duty bound to the service by our counsel and forces to be employed in the assistance of his said warden in all things tending to the good rule and quietness of the said Middle March, and setting forth of his Highness authority against these traitors, rebels, and other malefactors to their due punishment, and defence and safety of true men. Therefore we be bound and obliged, and by the tenor hereof binds and obliges us, and every one of us, that we should truly serve the King’s Majesty our sovereign lord, and obey and assist his said warden, in the premiss, and shall concur with others in giving of our adviceand counsel, or with our forces in pursuit or defence of the said thieves, traitors, rebels, and other malefactors disobedient to our sovereign lord’s authority, or disturbers of the public peace and quietness of the realm, as we shall be charged or warned by open proclamations, missives, bailies, or other the like accustomed forms as we will answer to his Highness upon our obedience at our highest charge and peril, if we shall be found remiss or negligent, we are content to be repute held and esteemed as favourers and partakers with the said thieves, traitors, rebels, and malefactors in their treasonable and wicked deeds, and to be called, pursued, and punished therefor, according to these laws in example of others.”[31]
There can be no doubt that these “Bonds” were often contracted in good faith; that is to say, those who subscribed them were honestly desirous to fulfil, both in the spirit and letter, the obligations thus undertaken. It is, however, worthy of remark that those who had thus sworn allegiance to the warden had not infrequently ends of their own to serve, which conflicted with their duty to the representatives of law and order. Thieves were harboured, or at least allowed to remain unmolested, on the estates, or within the jurisdiction, of those who had thus professedly banded themselves together for their detection andpunishment. The result was that the subscribers to the “Bond” were occasionally reported to the government for their delinquencies, and prosecuted and punished for their breach of faith. Thus we find that on one occasion Walter Ker of Cessford, James Douglas of Cavers, George Rutherford of Hunthill, and Ker of Dolphingstone were convicted of art and part of the favour and assistance afforded to Robert Rutherford, called Cokburn, and John Rutherford, called Jok of the Green, and their accomplices, rebels and at the horn; permitting them to pass within their bounds continually for divers years past; for not using their utmost endeavour to hinder them from committing sundry slaughters, stouth-reifs, thefts and oppressions on the King’s poor lieges, nor ejecting the said rebels, their wives and their children, from their bounds and bailiaries, but knowingly suffering them to pass within their limits and to remain therein beyond the space of twelve hours, to commit sundry crimes during the time of their passing and reset within the shire in which they dwelt, thereby breaking, transgressing, and violating their obligation and “Bond” to the King, and incurring the pains contained in the said “Bond.”[32]
It is remarkable, considering the reputation enjoyed by the Borderers for being true to their word, thatsuch occurrences should have to be so frequently complained of.
Unfortunately, the wardens were as little animated by a high sense of honour as those who had solemnly pledged themselves to support them in the discharge of the duties of their office. They frequently, and in some cases almost systematically, exercised the powers conferred on them, not in trying to preserve the public peace, but in wreaking vengeance on their enemies. A striking instance of this is to be seen in the conflict which was so long waged between the Johnstones and the Maxwells, and which produced endless misery and mischief throughout a wide area.
All things considered, the wardens were well remunerated for such services as they were able to render. The usual fee appears to have been £100 per annum. In 1527 the Earl of Angus had £100 for the East and a similar sum for the Middle March. In 1553 the Warden’s fee was £500, but he had to surrender the one half of the “escheats” to the authorities. When William Ker of Cessford was appointed warden of the Middle March and keeper of Liddesdale, his salary for the former office was £100, and for the latter £500. But these sums represented but a small part of the actual income. They were also allowed forage and provision for their retinue, which consisted of a guard of horsemen.They had in addition a portion of the “unlaws” or fines imposed in the warden courts, and at certain periods these must have amounted to a large sum. The law ordained that “the escheat of all thieves and trespassers that are convict of their movable goods, ought and should pertain to the warden for his travail and labours, to be used and disposed by him at his pleasure in time coming. The warden ought and should take and apprehend all and sundry our sovereign Lord’s lieges turning and carrying nolt, sheep, horses, or victuals furth of this realm into England, and bring their persons to the King’s justice, to be punished therefor; and all their goods may he escheat: the one half thereof to be applied to the King’s use, and the other half to the warden for his pains.” In addition to this, the wardens had a large share of the plunder of the various forays upon the English Border, which they either conducted in person, or winked at when undertaken by their retainers or dependants. In the “Border Papers” we are informed that on Sunday, the 17th April, 1597, the Lord Buccleuch, Keeper of Liddesdale, accompanied by twenty horse and a hundred foot, burned at noonday three onsets and dwelling-houses, barns, stables, oxhouses, &c., to the number of twenty, in the head of Tyne, cruelly burning in their houses seven innocent men, and “murdered with the sword” fourteen which had been in Scotland, and brought away the booty, the headofficer with trumpet being there in person.[33]This was a frequent occurrence, especially with Buccleuch, who was never quite happy when not plundering and oppressing “the auld enemy.” From a pecuniary point of view, not to speak of other advantages, the office of warden was a highly desirable one, and was consequently eagerly sought after by the Border Chiefs.
The duties pertaining to this office may be described as of a twofold nature—the maintenance of law and order, and the protection of the districts against the encroachments and inroads of the enemy. “In the first capacity,” as has been remarked, “besides their power of control and ministerial administration, both as head stewards of all the crown tenements and manors within their jurisdiction, and as intromitting with all fines and penalties, their judicial authority was very extensive. They held courts for punishment of high treason and felony, which the English Border laws classed under the following heads:—
I. The aiding and abetting of any Scottishman, by communing, appointment, or otherwise, to rob, burn, or steal, within the realm of England.
II. The accompanying personally, of any Scottishman, while perpetrating any such offences.
III. The harbouring, concealing, or affording guidance and protection to him after the fact.
IV. The supplying Scottishmen with arms and artillery, as jacks, splents, brigantines, coats of plate, bills, halberds, battle-axes, bows and arrows, spears, darts, guns, as serpentines, half-haggs, harquibusses, currys, cullivers, hand-guns, or daggers, without special licence of the Lord-warden.
V. The selling of bread and corn of any kind, or of dressed leather, iron, or other appurtenances belonging to armour, without special licence.
VI. The selling of horses, mares, nags, or geldings to Scottish men, without licence as aforesaid.
VII. The breach of truce, by killing or assaulting subjects and liege-men of Scotland.
VIII. The assaulting of any Scottishman having a regular pass or safe-conduct.
IX. In time of war the giving tidings to the Scottish of any exploit intended against them by the warden or his officers.
X. The conveying coined money, silver or gold, also plate or bullion, into Scotland, above the value of forty shillings at one time.
XI. The betraying (in time of war) the counsel of any other Englishman tending to the annoyance of Scotland, in malice to the party, and for his own private advantage.
XII. The forging the coin of the realm.
XIII. The making appointment and holding communication with Scotchmen, or intermarrying with aScottish woman, without licence of the wardens, and the raising of no fray against them as in duty bound.
XIV. The receiving of Scottish pilgrims with their property without licence of the wardens.
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 unjustlyfould(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.”
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 thatsubstantial 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 realmeaning 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.
VII. Any one seizing his comrade’s prisoner was obliged to find security in the hands of the warden-serjeant. Disputed prisoners were to be placed in the hands of the warden, and the party found ultimately wrong to be amerced in a fine of ten pounds.
VIII. Relates to the evidence in case of such dispute. He who could bring his own countrymen in evidence, of whatsoever quality, was preferred as the true captor; failing this mode of proof, recourse was had to the prisoner’s oath.
IX. If the prisoner was of such a rank as to lead a hundred men, he was either to be dismissed upon security or ransomed, for the space of fifteen days, without leave of the warden.
X. He who dismounted a prisoner was entitled to half of his ransom.
XI. Whosoever detected a traitor was entitled to a reward of one hundred shillings; whoever aided his escape, suffered the pain of death.
XII. Relates to the firing of beacons in Scotland: the stewards of Annandale and Kirkcudbright were liable in the fine of one merk for each default in the matter.
XIII. He who did not join the army of the country upon the signal of the beacon lights, or who left it during the English invasion without lawful excuse,his goods were forfeited, and his person placed at the warden’s will.
XIV. In the case of any Englishman being taken in Scotland, he was not suffered to depart under any safe conduct save that of the King or warden; and a similar protection was necessary to enable him to return and treat of his ransom.
XV. Any Scottishman dismissing his prisoner, when a host was collected either to enter England or defend against invasion, was punished as a traitor.
XVI. In the partition of spoil, two portions were allowed to each bowman.
XVII. Whoever deserted his commander and comrades, and abode not in the field to the uttermost, his goods were forfeited, and his person liable to punishment as a traitor.
XVIII. Whoever bereft his comrade of horse, spoil, or prisoner, was liable in the pains of treason, if he did not make restitution after the right of property became known to him.”[37]
These military regulations, at once minute and comprehensive, were drawn up by William, Earl of Douglas, with the assistance of some of the most experienced Marchmen; and, with the necessary alterations, were adopted by the English—thus indicating that they were thoroughly in harmony with the military spirit of the age on both sides of the Border.
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 suchtimes 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 undertakencon 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 occasionallynecessitating 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 afterMid-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 indictmentshad 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 acquittedon 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 betried 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 someof 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 thegear, 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, inreadiness 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 asingle 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 partieswere 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 aby[44]it. For all thisthey 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 neverconsidered too closely the minute shades of difference betweenmeumandtuum, 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 thehot-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 thefirst 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 thegreat 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, thewardens 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, tothe 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 wholeforce, 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 anarrangement, even the semblance of civilized life could have been maintained. The Borders really constituted animperium 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.
The difficulties with which the Borderers had to contend were of a varied character. They had to be constantly on the watch against the aggressions and incursions of their enemies on the opposite Marches. But it frequently happened that their most dangerous and inveterate foes were to be found amongst their own countrymen. This was the case more especially when blood-feuds arose, setting family against family, and clan against clan. An interesting, if not very luminous, account of the origin of the “Feud” is given by Burghley in a report submitted by him to the English government, in which he deals with what he calls the “Decays of the Borders.” He says:—“Deadly Foed, the word of enmytie on the Borders, implacable without the blood and whole family destroyed, whose etymologie I know not where better to fetch than from Spiegelius in hisLexicon Juris, in Verbo‘feydum:’ he saith it is an old Teutchword whereof is derived by Hermanus Nivoranus (?)faydosum Hostis publicus; ‘foed’enim, Bellum significat.” He further points out that the Scottish wardens, being native Borderers, are “extraordinarilye adicted to parcialities, favour of their blood, tenantes and followers,” and consequently he holds they should be disqualified for office.[49]
The evils resulting from these deadly-feuds would have been comparatively trifling had it been possible to limit the consequences to the persons more immediately concerned. Owing, however, to the system of clanship which prevailed on the Borders, the whole sept became involved in the feud. “If one of the clan,” says Sir Walter Scott, “chanced either to slay a man, or commit any similar aggression, the chief was expected to defend him by all means, legal or illegal. The most obvious and pacific was to pay such fine oramende, or assythement, as it was called, as might pacify the surviving relations, or make up the feud. This practice of receiving an atonement for slaughter seems also to have been part of the ancient Celtic usages; for it occurs in the Welch laws of Howell Dha, and was the very foundation of the Irish Brehon customs. The vestiges of it may be found in the common law of Scotland to this day. But poor as we have described the Border chief, and fierce as he certainlywas by education and office, it was not often that he was either able or disposed to settle the quarrels of his clansmen in a manner so amicable and expensive. War was then resorted to; and it was the duty of the chief and clan who had sustained the injury to seek revenge by every means in their power, not only against the party who had given the offence, but, in the phrase of the time and country, against all his name, kindred, maintainers, and upholders. On the other hand, the chief and clan to whom the individual belonged who had done the offence, were equally bound in honour, by every means in their power, to protect their clansman, and to retaliate whatever injury the opposite party might inflict in their thirst of vengeance. When two clans were involved in this species of private warfare, which was usually carried on with the most ferocious animosity on both sides, they were said to be at deadly feud, and the custom is justly termed by the Scottish parliament most heathenish and barbarous.... In these deadly feuds, the chiefs of clans made war, or truce, or final peace with each other, with as much formality, and as little sincerity, as actual monarchs.”[50]
Feuds of the most bitter and hostile character were an every-day occurrence. The Herons, Fenwicks, Shafftownes, Charletons, and Milbornes, on theEnglish side of the Border, were all at feud at the same time. And on the Scottish side the Elwoods (Elliots), Armstrongs, Nixons, Crosiers, Trumbles, and Olivers were, during the same period, at “daggers drawn,” and thirsting for each other’s blood. The misery which such feuds created can hardly be over-estimated. The sense of personal security was completely destroyed. Mutual trust, the primary condition of social life, was rendered practically impossible. And, as might be expected, the most trivial circumstances often gave rise to the most implacable hostility. A singular instance of this is referred to by John Cary in one of his communications to Burghley. He says:—“Your honour remembers hearing long since of the great road by the Scotts ‘as Will Haskottes and his fellowes’ made in Tynedale and Redesdale, taking up the whole country and nearly beggaring them for ever. On complaint to the Queen and Council, there was some redress made with much ado and many meetings. Buccleuch and the Scotts made some ‘bragges and crackes’ as that the country durst not take its own; but the Charletons being the ‘sufficientest and ablest’ men on the borders, not only took their own goods again, but encouraged their neighbours to do the like and not be afraid—‘which hath ever since stuck in Buccleuch’s stomack.’... Mary! he makes another quarrell, that long since in a war tyme, the Tynedale men should goe into hiscountrey, and there they took his grandfather and killed divers of his countrye,and that they took away his grandfather’s shworde, and never let him have it yet synce. This sayeth he is the quarrell.”[51]
Nor did lapse of time tend to soften the animosities. The feud was inherited along with the rest of the family property. It was handed down from generation to generation. The son and grandson maintained it with a bitterness which, in some cases, seemed year by year to grow more intense. It affected more or less a man’s whole social relationships, and gave rise to endless animosities and heart-burnings. Feuds were not unknown in other districts of the country, but owing to the feeble and ineffective manner in which the law was generally administered, they prevailed to a greater extent on the Borders,—and were characterised by a more vengeful spirit,—than in any other part of the kingdom.
Hence it was found that the existence of such feuds made the administration of the law, such as it was, a matter of supreme difficulty. It is said that it was hardly possible for any gentleman of the country to be of a jury of life and death if any of those at feud were indicted, “as they were grown so to seek blood that they would make a quarrel about the death of their grandfather, and kill any of the name.” It was,therefore, found necessary to appoint special nobles and barons belonging to some distant part of the country, to sit in judgment in those cases in which the accused was at feud with the warden. On two occasions when courts were being held at Jedburgh, it was found expedient to issue proclamations in the King’s name,—“That na maner of persons tak upon hand to invaid ane an uther for ald feid or new, now cumand to this present air or passand tharfra, and induring the tyme thairof under the pane of dede; and that na maner of persone or persons beir wapins except kniffis at their beltis, bot alanerlie our soverane lordis household, the justice, constable, merschell, compositouris, thair men and houshald, schireff, crounaris and thair deputis, under the pane of escheting of the wapins and punishing of the persons beraris therof.”[52]Owing to the disturbed condition of the country, such precautions were much needed, although it must be admitted that they did not always secure the end desired.
Many of the Border feuds present features of great interest alike to the sociologist and the historian. They afford interesting glimpses of the condition of society in this part of the realm, and disclose the dominant passions by which the lives and characters of those more immediately concerned were shaped anddetermined. Throughout the greater part of the 16th century a fierce feud raged between two of the most noted and powerful Border families—the Scotts and the Kers. The circumstances which gave rise to this deadly feud form an interesting chapter in the history of the Borders.
During the minority of James V. the Earl of Angus controlled the government of the country, and in his own interests, and for the furtherance of his own ends, kept a watchful eye on the movements of the young King. In the year 1525, James, accompanied by Angus, and other members of the court, came south to Jedburgh, “and held justice aires quhair manie plaintes cam to him of reiff, slauchter and oppression, bot little justice was used bot the purse, for thir was manie in that countrie war the Earl of Angus’ kin and friendis, that got favourable justice, quhairof the king was not content, nor non of the rest of the lordis that war about him, for they wold have justice equally used to all men; bot the Earl of Angus and the rest of the Douglass’ rulled yitt still as they pleased, and no man durst find fault with their proceidingis; quhairat the king was heartilie displeased, and would fain have been out of their handis, and for that effect he writt are secreitt letter to the laird of Buccleugh, desiring him effectuouslie that he wold come with all his forces, kin and freindis, and all that he might ax, and meit him at Melrose, at his home coming, andthair to tak him out of the Douglas’ handis, and put him at libertie, to use himself among the rest of the lordis as he thought expedient.”[53]Buccleuch at once convened his “kin and freindis,” and all who were prepared to take part with him, to the number of six hundred spears, and set out for Melrose to await the coming of the King. Home, Cessford, and Fernieherst, who were of the King’s company, had returned home. Buccleuch and his followers made their appearance, arranged in order of battle, on Halidon Hill, overlooking the Tweed, near Melrose bridge. When Angus saw them he wondered what the hostile array portended. But when he discovered that Buccleuch was supported only by numbers of Annandale thieves, he took heart of grace, and said to the King—“Sir, yonder is the laird of Buccleuch, and the thieves of Annerdaill with him, to unbesett your grace in the way, bot I avow to God, Sir, they sall aither fight or flie. Thairfor, Sir, ye sall tarrie here, and my brither George with yow, and any other quhom yeu pleas, and I sall pas and put yon thieves aff the ground, and red the gaitt to your grace, or else die thairfor.”[54]
The conflict now began in earnest. Buccleuch and his men stoutly resisted the onslaught of Angus, and for a time the issue seemed uncertain. But Home,Cessford, and Fernieherst, having got wind of the affair, returned, supported by four score spears, “and sett on freschlie on the utmost wing, on the laird of Buccleughis field, and shortly bare them to the ground, quhilk caused the laird of Buccleugh to flie; on whom thair followed ane chaise be the lairdis of Sesfoord and Pherniherst, in the quhilk chaise the laird of Sesfoord was slain with ane cassin spear, be ane called Evan, servand of the laird of Buccleughis.”[55]
There seems nothing remarkable about such an incident as this. That Cessford should have been accidentally slain by one of Buccleuch’s servants was no doubt a regrettable incident, but those who play bowls must be prepared for rubbers. This, unfortunately, was not the view entertained by the Kers, who henceforth were at deadly feud with Buccleuch. All efforts to bring about a reconciliation were in vain. The Kers thirsted for vengeance, and were determined to “bide their time.” Twenty-six long years had come and gone, and one day as the laird of Buccleuch was passing along one of the streets of Edinburgh, little suspecting the fate which awaited him, he was fatally stabbed by the descendant of Cessford. The Borderers had many faults, but certainly they cannot be charged with having had short memories!
But a still more striking illustration of the disastrousconsequences of the deadly feud is to be found in the case of the Johnstones and Maxwells, two of the most prominent and powerful families in Dumfriesshire. These two families were strong enough, had they been united, to have kept the whole district in good order; but unfortunately they were often at feud, with the result that not only their own interests, but the interests of the community as a whole, were ruthlessly sacrificed. It is worthy of note that one of the principal causes of the frequent and disastrous feuds between the representatives of the two families, was the frequency with which the office of warden was conferred, first on the one, and then on the other, without any good reason being assigned by the King for the adoption of this shuttle-cock policy. This office was naturally much coveted, as it was not only a source of revenue, which in those days was a most important consideration, but a condition of influence and power. It must, therefore, have been peculiarly irritating for the warden to be summarily called upon to resign his office almost before he had begun to reap the rewards pertaining to it. And when he saw his rival basking in the sunshine of the royal favour, from which he had been suddenly and capriciously excluded, his feelings may be more easily imagined than described. Nor did it greatly tend to soothe his wounded feelings to reflect that the person by whom he had been superseded would be certain before longto be hurled from his proud eminence and another put in his place. The whole system was pernicious, and was the source of no end of mischief and bad blood.
The origin of this famous feud may be briefly related. John, seventh Lord Maxwell, has been well described as one of those men whom a daring and restless temperament and their crimes “have damned to eternal fame.” After the death of the Regent Morton, he succeeded in securing a charter to the Earldom of Morton—his mother, Lady Beatrix Douglas, being the Regent’s second daughter. It was not his good fortune, however, to enjoy for a lengthened period either the title, or the domains attached to it. In January, 1585, four years after he had come into possession, Parliament rescinded the Attainder, and declared that the title and the estates were to be conferred on the Regent Morton’s lawful heir. Maxwell was declared a rebel, mainly owing to his religious views—he being a warm adherent of the Romish Church—and Johnstone was commissioned to apprehend him. Though he had the assistance of two bands of hired soldiers, Maxwell proved more than a match for him, took him prisoner, and set fire to Lochwood Castle, as it was savagely remarked, “that Lady Johnstone might have light to put on her hood.” This unexpected blow fell on the laird of Johnstone with crushing effect. In thefollowing year he died of a broken heart. It is to these circumstances that we must attribute the origin of the deadly feud between the two clans, and especially between their chiefs.
But Maxwell, though gaining this important victory, was not allowed to escape. He was ultimately taken prisoner, but afterwards regained his liberty, on condition that he left the country. He went to Spain, and offered his services to “His Catholic Majesty,” who was then busily engaged in fitting out theInvincible Armada, by which he hoped to overwhelm both England and Scotland. Lord Maxwell—so little was he animated by the spirit of patriotism—entered into the schemecon amore. Being furnished with ample means, he returned to Scotland in 1588 to levy men on the Borders to assist his new sovereign. His prefidious designs were fortunately discovered, and ere he could make good his escape, he was surprised by the King in Dumfries, taken prisoner, and his wardenship of the West Marches bestowed on his powerful rival, the laird of Johnstone. Everything might have gone on smoothly at this juncture had the King only been gifted with a little firmness and foresight. He was anxious, however, to conciliate his Roman Catholic subjects, and he seems to have come to the conclusion that, reasonable conditions being imposed, he might accomplish this end by restoring Maxwell to favour and office. This was a fatalblunder, and produced disastrous results. Though the two rival chiefs were induced to enter into a bond of alliance to support each other in their lawful quarrels, as might have been expected, it was not long before circumstances arose which brought them again into deadly conflict. The Johnstones seemed to have concluded that they were at liberty to harry and despoil at their pleasure, so long as they left unmolested any of the name of Maxwell. Acting upon this principle, they made a raid upon Nithsdale, and committed sundry depredations on Lord Sanquhar, the lairds of Drumlanrig, Closeburn, and Lagg, and killed eighteen persons who had “followed their own goods.” Such a fierce and unprovoked assault could not well be allowed to go unpunished, and so a commission was given to Lord Maxwell to pursue the Johnstones with all hostilities. Johnstone hearing of this, at once adopted measures for his protection. He summoned to his aid the Scotts of Teviotdale, and the Grahams and Elliots of Eskdale, as well as “divers Englishmen, treasonably brought within the realm, armed in plain hostility.” Maxwell, however, determined not to be beat, entered into “Bonds of Manrent” with Sanquhar, Drumlanrig, and several others, who had suffered at the hands of Johnstone, to maintain each other’s quarrels.
Acting upon his commission, Maxwell summoned Johnstone to surrender, but this he refused to do, onthe ground that the warden had acted illegally in entering into “Bonds” with the persons above-mentioned. As it was clearly impossible to settle the question by diplomatic means, the warden despatched Captain Oliphant with some troops to Lochmaben, to await his arrival in Annandale. The Johnstones, who were on the alert, coming suddenly upon them, killed the captain, and a number of his soldiers, and burned the Kirk of Lochmaben, where some of Oliphant’s men had fled for refuge. Lord Maxwell now entered the field in person. He expected to raise the different towns in his aid; but Johnstone, acting on the principle that “a ‘steek’ in time saves nine,” attacked him at once, scattered his forces, and slew Lord Maxwell, “and sundry gentlemen of his name.” This affair took place December, 1593, and is well known as the Battle of Dryfe Sands. “Lord Maxwell,” it is said, “a tall man, and heavy in armour, was in the chase overtaken and stricken from his horse. The report went that he called to Johnstone, and desired to be taken (prisoner), as he had formerly taken his (Johnstone’s) father: but was unmercifully used; and the hand that reached forth cut off; but of this I can affirm nothing. There, at all events, the Lord Maxwell fell, having received many wounds. He was a nobleman of great spirit, humane, courteous, and more learned than noblemen commonly are; but aspiring and ambitious of rule.”
In this contest the Maxwells suffered severely. They were cut down in scores in the streets of Lockerbie. It is said that those who escaped bore on them to their dying hour marks of the fatal day, which occasioned the proverbial phrase of “a Lockerby lick,” to denote a frightful gash over the face or skull. So dreadful was the carnage in this disastrous “bout of arms” that it is alleged by numerous historians that at least 700 of the Maxwells and their adherents were slain. Two aged thorns long marked the spot where Maxwell met his fate, known in the district as “Maxwell’s Thorns.” They were carried away by a flood some fifty years ago, but have been replaced by two others, now enclosed in a railing.
“It is evident, then,” remarks Pitcairn, “according to the sentiments of those times, inherited from their earliest years, which ‘grew with their growth and strengthened with their strength,’ that natural duty and filial piety required such a feud should become hereditary, and behoved should be handed down from one generation to another. The attempts by the King and his Council to procure an effectual reconciliation, although strenuously made and often repeated, at length proved abortive. The re-appointment of the Laird of Johnstone to be warden of the West Marches, in 1596, appears to have served as a signal for the resumption of mutual aggressions.”[56]It would seem that Johnstone held the office at this time for a periodof three years, but as his wardenry had got into a most unsatisfactory condition, he was superseded by Sir John Carmichael, his appointment being notified to Lord Scrope, by James VI., on the 26th December, 1599. Carmichael was murdered by Thomas Armstrong, “son of Sandies Ringan,” in the following year, and Johnstone was again appointed to this ill-fated office. All this time the feud raged as fiercely as ever. Various attempts were made to bring about an agreement, but nothing came of them. At length through the influence of mutual friends, a private meeting was arranged. Solemn pledges were given and exchanged, and Lord Maxwell and Sir James Johnstone met on the 6th of April, 1608, each accompanied only by a single attendant. The principals having removed some distance to discuss their affairs, a quarrel arose between the two attendants, and when Sir James Johnstone turned round to admonish them to keep the peace, Lord Maxwell suddenly drew his pistol, and fired at him, and shot him through the back with two bullets.