The Border Laws eg Blackmail, Whitemail, The Hot Trod, The Fray

The Border Laws Printed in Bishop  Nicholson’s Leges Marchiarum. (London, 1705.)

From which we are given blackmail, whitemail, the Hot Trod, The Cold Trod, The Fray, Broken Men, over-swearing, fishing in The Tweed, Hue and Cry, sleuth dogs (bloodhounds)

Extracts from The Lord Wardens Of The Marches Of England And Scotland by Howard Pease.  Limited to 500 copies.  Published 1912. Available free online from Cornell University Archives.org. Also in raw text.  Page references are in the form eg Wp55 = Wardens page 55

Full intro text “The lord wardens of the marches of England and Scotland : being a brief history of the marches, the laws of march, and the marchmen, together with some account of the ancient feud between England and Scotland”

By an enactment of the 43rd Eliz. [43rd year of the reign of Elizabeth I], it was ordered without, however, impeaching the jurisdiction of the Lord Wardens that the paying ‘a  certain rate of money, corn, cattle, or other consideration, commonly there  called by the name of blackmail, unto divers and sundry inhabitants upon  or near the Border was felony without benefit of clergy.’

Blackmail is said to signify payment in cattle.  Whitemail in silver money. [nb elsewhere “greenmail” is payment for land]

• [The Royal Mail can trace its history back to 1516, when Henry VIII established a “Master of the Posts”,[9] a position that was renamed “Postmaster General” in 1710.[10] Upon his accession to the throne of England at the Union of the Crowns in 1603, James VI and I moved his court to London. One of his first acts from London was to establish the royal postal service between London and Edinburgh, in an attempt to retain control over the Scottish Privy Council.[11]  The Royal Mail service was first made available to the public by Charles I on 31 July 1635, with postage being paid by the recipient.]

The powerful chieftain, ‘ the strong man armed,’  could take good care of himself, but the poor man  the ‘ Jimmy Telfer of the fair Dodhead ‘ had often a  hard task to win his own good kye back again, and  usually he would be driven to pay ‘ blackmail ‘ protection money even though it was forbidden by the  Laws of March, in order to ensure protection or at  least a measure of revenge when his ‘ gear ‘ had been  ‘lifted.’   Wp121

‘DOUBLE AND SAWFEY ‘  

THE damage or loss seems to have been assessed by a jury  of twelve, six of whom were to be ‘ gentlemen of Worship  and good name of Scotland,’ chosen by the English Warden,  and the other six ‘ like gentlemen of England,’ to be named  by the Scots Warden. Then this assessment was doubled,  and a third ‘ in respect of such charges as the partie offended  had sustained in the inquiring and finding certainly who  was the offender ‘ finally added.

This was the famous  double and sawfey or ‘ two doubles,’ in reality a threefold  fine, which is so commonly met with in old Border histories  and nearly always wrongly explained. Even in Mr. Heslop’s  excellent Dictionary of Northumberland Words ‘ sawfey  money’ is said to be ‘blackmail levied by the reivers of  Tynedale and Redesdale.‘   p241

Now the three terms Principal, Double and Sawfey are  succinctly set down and explained under the ‘manner of  holding days of Truce’ as follows (Calendar of Border  Papers, voL ii. p. 724) :

‘Principall’ is given as the ‘ true single quantity of a bill.’  ‘ Doubles ‘ another single quantity.   ‘ Sawffies’ a third single quantity.

Every one filed or convicted of a bill for stolen goods is  condemned to pay three for one (with exceptions), viz.  principall, double and sawffie.

Whatever the derivation, the meaning is more particularly  set down by Sir Robert Bowes in his report on the Border in  1551. He has some difficulty in spelling the term : it is now  the ‘ double and falss ‘ and again the ‘ double and sale’ and  finally the ‘ double and falsse,’ but he knows quite well what  it means. ‘ Ye principall goods sold or spoyled to be re-  dressed or the value thereof with the double, which was as  muche againe as the principall amounted unto, and for the  fals ‘ (‘ sawfey ‘), ‘ or in respect of such charges as the partie  offended had sustained in the inquearinge and findinge  certainlye who was the offender all other tyme, the value of  the gooddes which in the whole amounted to a threefold  restitution.’ He goes on to say that ‘ by remisse and negli-  gente directions made by officers upon the Borders, the  same good orders were perverted to the favor and profyte of  the thiefe, losse and damage of trew men ‘ by only ordering  the ‘ double ‘ to be paid. Wherefore the Commissioners  order that after the first day of May 1551 ‘for all attemptets  donne and committed or to be committed after the said day   Wp241,,See Indenture of 1553 section 25 Wp97

Lochmabenstone

Bishop Nicholson’s Lex gives only two meeting-places, but the Acts of  Parliament of Scotland give four, as above stated. As to the battle ground  of Sulwath (the act says ‘ the Sheriffs of Carlisle and Cumberland must  answer at Sulwath [Solway] apud Sulewath’ which Dr. Neilson, with great  learning and research, identifies with the Lochmabenstone beside Solway,  near to Gretna Green), see his Annals of the Solway (Maclehose. Glasgow).  Therein he seems to have established his contention that Solway meant  originally the ‘ muddy ford ‘ over Esk, at that time the boundary between  England and Scotland. Fordun styles it ‘Scotiswath sive Sulwath’  Solway being a comparatively late term.

Solway = Muddy ford over the Esk Wp79

Hot Trod

The question of those who travel in the opposite  realm under safe-conduct is also dealt with.  Two letters of safe-conduct are to be made out  under the Great Seal of either kingdom, the English  safe-conduct to remain in some convenient place on  the Scottish Border, the Scots letter similarly to  remain on the English Border, either for the use of  the subjects of their several realm who seek for  justice for offences done them, but not more than  three or four together may use it at one time.

An injured individual, however, may follow his  aggressor into the opposite realm without any safe  conduct, if he does so within six days. This, by the  way, is the ‘ cold trod,’ as the phrase went, as opposed  to * hot trod,’ viz. immediate pursuit ‘ with hue and  cry and horn and hound/ that was allowed even up  to the union of the two crowns. The aggrieved individual is also permitted, if he prefers it, to approach  one of the Wardens of the opposite realm or his  deputy within six days for obtaining justice. Again,  by virtue of the letters of safe-conduct, an aggrieved  individual may at any time, while the truce lasts,  enter the opposite realm and prosecute his cause  under any competent judge l therein.   Wp88

Permissions for Scots visiting England and English passing to Scotland

Without permission for an English person to visit Scotland or a Scot to visit England, arrest and punishment were likely.  A copy of a letter allowing an Englishman to pass through the Middle March of Scotland.  See Permission to pass into Scotland. And Carlisle expels Scots at dusk And Rules to defend against Scots

Slayer to be handed over or put to the King’s horn ie proclaimed a rebel

It is further ordered that the slayer of an English-  man on Scottish ground, or the slayer of a Scot on  English ground, is to be handed over on request made  within fifteen days to the party complaining, to be  ‘justified or ransomed according to his will.’   Wp92 1473

If the slayer be fugitive then he is to be ‘ put to  the King’s horn/ viz. proclaimed a rebel, and any one  ‘ resetting ‘ (receiving) him is to incur the same  penalty as the homicide himself would have done if  he had been captured.

1549. 1549. Murderers of the subjects of the opposite realm are to be apprehended by the Wardens, brought to the ‘ Day of Trews/ and there if convicted by the  ‘ Laws of Marche’ to be handed over to the opposite  Warden to be punished with death.

Cold Trod, or the following up of goods stolen,  within six days afterwards, permitted without safe  conduct. The pursuer, however, must ‘ go unto some  honest man, inhabiting within the Marches which he  hath enter’d, and declare unto him the cause of  his entry.’

1553. 1553. Fyling (convicting} and Acquitting upon the Honour of the Warden. Now first introduced, and limited ‘ to offences committed since the acceptation of  the last Peace and before the date of these Presents.’   Wp93
1554. Baughling or reproving a subject of the opposite realm at a Day of Truce forbidden except by licence of both Wardens.

1553 Perjury. Any one perjuring himself by swearing  falsely his innocence of a bill filed against him is to  be handed over to the opposite Warden to be im-  prisoned for three months, and at the * next day of Trewes [day of truce] ‘ thereafter is to be ‘ brought before the  Wardens and there openly be denounced and proclaimed a Perjured man : after which time he shall  not be reputed to be a man able to give further Faith  or Testimony in any case or Matter.’

Overswearing of Value of Goods stolen. The two  Wardens, with a jury of ‘ 12 of the most worshipful  and Credible Persons, then being present’ (half of  them Scotsmen, half Englishmen), may ‘ moderate,  diminish or qualifie the number or Price of the goods  or Cattel so overs worn.’

Trespass of Cattle. The owner of the ground or  in his default the Warden where one of the opposite  realm ‘ willingly and customably depastures and feeds  with his cattle or sheep, or staffherds the same,’ may  ‘ impound the said cattel and keep in Pound till the  owner pays for the first time for every nolt [bullock]  a Penny sterling, and for every Sheep a Penny Scots.   ‘ If he offend again a double Parkage to be paid  until it extend to 2s. per nolt and 6d. per sheep,  beginning again with each New Year Day with a  Penny Sterling and a Penny Scots.’

Fishing in the Tweed. There were various  disputes between the Captain of Norham, Selby of  Twizell, etc., and the Scots, the English of course  fishing the southern bank and the Scots the northern  bank of the Tweed. Any one ‘ unlawfully troubling,  stopping, or making impediment ‘ to the subject of  the opposite realm ‘ in his fishing is to be arrested by  the Warden, and if convicted at the Day of Trews  must pay 20s. sterling for every Tyde he made  impediment/ and is to be ‘ delivered to remain with  the party grieved, until the same be fully satisfied.’   Wp96

Hot Trod. Any new rules and innovations now  made in Border Laws are not to interfere with the old custom of Hot Trod, viz. the following ‘ their  lawful Trade with * Hound and Horn, with Hue and  cry, and all other accustomed manner of fresh Pursuit,  for the Recovery of their Goods spoiled.’   Wp99

1 SLEUTH-HOUNDS, SLEUTH-DOGS, ‘ SLEW ‘ OR ‘ SLOUGH ‘-Dogs

The Fray of Support.   

‘ Our ancient statutes,’ wrote Sir Walter Scott (Border Minstrelsy,  Hobbie Noble, note), ‘ inform us that the blood-hound or sleuth-hound (so-  called from its quality of tracing the slot or track of men and animals)  was early used in the pursuit and detention of marauders.’

Under the ancient custom of ‘ Hot Trode,‘ so continually met with in  Border writings, the ‘ parties grieved ‘ were by Border Law and custom  ‘to follow their lawful Trode with Hound and Horn, with Hue and Cry.’  The sentinel upon his lonely watch would certainly have been much  heartened by the company of a staunch bloodhound, and the fugitive  as much discouraged. ‘ These hounds seem latterly to have been popularly  termed ” slough dogs,” for pursuing offenders through the sloughs, mosses,  and bogs, that were not passable but by those who were acquainted with  the various and intricate by-paths and turnings.’

In 1595 the Bishop of Durham and Lord Eure (Warden of Middle  March) wrote to Lord Huntingdon (Lord President in the north) requesting  that he should cause ‘ the Justices to revive the good orders for watches of  all kinds, sloughhounds following hue and cry, and putting themselves and  servants in better order for service under terms and leases in these remote  parts.’ (Calendar of Border Papers.)   And again, a little later, Edward Gray, Deputy- Warden, writes to Lord  Eure : ‘ For slew dogges, I want a kallender whiche your Lordship hathe,  by which I should call the dogs in their several divisions, and would gladly  have it, if you could devise means to send it.’

In 1616 the Commissioners of His Majesty’s middle shires appoint the  manner of providing and keeping these ‘ slough dogs.’ ‘ The sheriff, officers,  bailiffs, and constables, within every circuit and compass wherein the  slough dogs are appointed to be kept, are to take care for taxing the  inhabitants towards the charge thereof, and collect the same, and for providing the ” slough dogs,” and to inform the commissioners if any refuse to  pay their contributions, so as thereby such as refuse may be committed to  the gaol till they pay the same.’

A Warden may pursue in Hot Trod fugitives or  offenders into the opposite realm, and none may let  or hinder him, but must join him on request and  notice given of the reason of the chase, for the  Warden is to give knowledge of the ‘ Hot Trod ‘ to  the ‘ first town he comet h by or the first Person he  meeteth with ‘ on such occasions.   If the pursuer ‘ do injury or unlawful harm within  the opposite Realm’ he is to be delivered to the  opposite Warden and to be punished at his discretion,  and other twelve persons of the same realm to be  nominated by the opposite Warden.   Wp100

A Warden’s Raid or Rode (formerly at times  undertaken by the Warden, who was permitted to  avenge injury by his own strong arm) was forbidden,  ‘ except when specially commanded by the Prince/ by  Elizabeth in 1596, but this, of course, would not  interfere with the ancient liberty of pursuing the  Hot Trod.

1596. 1596. Again, in 1596 stricter order is to be taken with ‘ all notorious Thieves and Robbers ‘ within the various Wardenries. A list must be enrolled and given in to the Warden, ‘ who shall, upon the first attempt  that shall be truly filed upon them hereafter, put the  offender immediately to death : or, in case he be  fugitive, shall cause him to be proclaimed such an one  according to the order and customs of the Borders, and his House immediately to be demolished and  destroyed, that it serve him no more for Receipt  within that Wardenry.’ Previously to this, by the  Border Law of 1563, the offender was only to be put  to death for the third fault.

Goods lost to be claimed within Year and Day. ‘ If  it shall happen any person to have bonajide in his  possession stollen goods, not knowing them to be  stollen, in case he be not sued therefor within year  and day, the goods shall remain with him ever after  as his own proper goods.’

Pledges. Finally, in regard to the ‘ pledges ‘ so  often mentioned, usually they were of c very mean  quality,’ not unlike Falstaff’s ‘ pressed men,’ and  their fate was frequently to die in prison. ‘ Haddock’s  Hole ‘ at Berwick had its tale to tell of these vicarious  pledges. Prisons, indeed, were so foul and unsanitary  that prisoners of a higher quality, who would be  treated with greater consideration, often suffered the  like fate. Thus in Henry vn.’s reign, on the occasion  of ‘ Sir Robert Carre, Warden of Scotland, being  slain e at a trewe, an Heron with 7 others were  delivered for him, and died in Fast Castle prisoners  for that facte.’

Sometimes in the absence of his ‘ pledges ‘ the  Warden would * deliver ‘ an officer of his own.  Suppose, for example, a bill had been ‘fyled’ upon an inhabitant of his Wardenry, and that the Warden  had not been able to arrest him at the Day of Truce,  he might, to prove his goodwill and faithfulness,  hand over his own servant instead. In which case  he often, as the phrase went, ‘ borrowed ‘ him again  upon his word.

Thus in the indenture of 1596 section 11 deals with  the personal responsibility of the Warden in this ‘ Yf the warden deliver his officer for a bill fyled  before him, and afterwards borrow him again upon his  word, as is the use, yf in the meantime the party so  fyled depart this life, by whatsoever way or means, in  this case the Warden shall pay the bill, and seek his  remedy and relief upon the heirs and executors of the  Defunct, as he may best.’

Broken Men. This would more especially be the  case with the ‘ pledges ‘ of the ‘ broken men/ such, for  example, as the Routledges on the West March, who  were proverbially spoken of as ‘ every man’s prey.’  There was special provision made for them and for  ‘ clanless loons’ in the indenture of 1596, where certain  sections deal with the pledges to be entered for ‘ every  sirname of broken men’ (viz. men without a respon-  sible head or chief), and also with the pledges for  ‘ such Border men and others as are not of any  knowne Clanne ‘ ; and it is enacted ‘ that being entred thay shall be kept by indifferent men, upon their  own expense, and not committed to the custody of  any person with whom they stand at feed or variance.’  These men were to be responsible for their whole  sirname, and if the bills fyled were not redressed  within a year and a day, * it shall be in the choice of  the Prince or officers (in whose hands they remain) to  take their lives, or to retain or seize them at their  pleasure till the full delivery be made/   Wp103