Border Laws 4

When the Marches were first set up, the great Northern English families the Nevilles and the Percies usually provided the Wardens. After their destruction in the Wars of the Roses this "right" passed to what might be called the second division of the the Northern nobility - the Eures, Dacres, Scropes etc. In the 16th Centry, in an attempt to divorce the Wardens from the family ties which dominated Border life, not a few of the English Wardens were appointed from Government officials from the south of the country.

On the basis of "set a thief to catch a thief" the Scottish Wardens were usually appointed from one of the more powerful families in that March. The reasoning behind this was sound. The wily Reivers might be able to pull the wool over the eyes of an incomer from the South, but it would be difficult to fool a powerful Border chief, who knew all the tricks of the trade and who had probably invented some of them. Unfortunately, many of the Scottish Wardens saw this not as an opportunity to become a poacher turned game keeper but as an opportunity to be a poacher with carte blanche for a wider variety of nefarious activities and a chance to assert power over the other families of the March. Wardenships invariably only encompassed two families in each March. The situation was made fraught by the fact that these families were usually at feud with each other. Not an inconsiderable cause of these feuds was possession of the Wardenship itself and the powerful position it gave each family. In the West March the office was "owned" mainly by the Maxwells, but during their infamous feud with the Johnstones throughout most of the 16th Century, the latter family alternated control with their enemies (depending on who was in or out of favour with the monarch at any time). This situation, of having the office up for grabs, did not exactly help in pacifying both sides in the feud, which only finished in 1613. A similar situation existed in the Middle March between the Scotts of Buccleuch and the Kerrs of Cessford (as distinct from other branches of the Scott and Kerr families); the Wardenship of the East March was pretty much the personal fiefdom of the Humes. In fact, when, in 1516, the Wardenship was removed from them only to be placed in the hands of one Anthony D'arcy - a Frenchman no less - the Humes murdered him and put his head on display in the marketplace in Duns!

Holding the Wardenship was a remunerative business, not so much in terms of the salary paid but in the form of the "perks" which went with the job. They were allowed to claim for fodder and provision for their horsemen, as well as certain "expenses". Creative accountancy not being invented just in the 20th Century this was another way to make money. Though on the downside he had to pay his officials and servants himself. However, a percentage of all fines levied in the Warden Courts and of stolen goods recovered (50%) went into the Warden's coffers. Additionally, 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 friends. Scott of Buccleuch himself not being adverse to increasing his Warden's revenue by leading raids into England. Unfortunately, for the Wardens, by the latter stages of the 16th Century, central government was exercising prudence as a fiscal tool and virtually every Warden on the English side of the Border wrote long letters of complaint to London about unpaid salaries and the lack of the necessary money for the upkeep of prisons or border defences. The Scottish Wardens were no better, having their salaries terminated in 1580.

The Warden as Law Officer

The Warden, then, fulfilled two functions; firstly, as the organiser of first-line defence for his countries frontier and, secondly, as a law officer and justiciary in the administration of the Laws of the Marches, these Laws undergoing eight revisions from their first implementation in 1248 to 1596 to their eventual repeal, when there was no further need for them, early in the 17th Century. On the second count, the Warden had his own courts in which to try offenders, but often he was dealing with felonies committed by those from another country. The Border Laws were so framed as to be international in implementation. The Wardens were supposed to work hand-in-hand with their (literally) opposite number on the other side of the Border, so that, for example, any Scotsman who had a crime committed against him by a Reiver on the other side of the Border could go to his March Warden to complain. He, in turn, would take up the complaint with the English March Warden, who would be expected to take action against the miscreant, the vehicle for this co-operation being the "Truce Day" (more of this later). That was the theory, anyway.

The crimes carried out by the Reivers were many and various and included the usual theft, robbery, 'recett' (the selling on of stolen goods), murder, wounding, arson, kidnapping, 'bauchling' (public abuse combined with defamation of character) as well as some peculiarly Border in nature such as inter-marriage, horse-trading, and illegal pasturing. Strangely, the standard "stock-in-trade" of the Reiver, the crimes of theft and murder, were not as heavily punished as we nowadays would have expected. The penalty for theft changed throughout the years from simple restitution in 1367 to hanging in 1384 to the handing over the the guilty party to his victim for punishment in 1398 to restitution by "double an sawfey" in 1551 to death for those with a previous conviction for theft in 1586. It was only in the middle of the 16th Century that murderers first faced execution. "Double and sawfie" meant the payment of the value of the goods plus another fine on top of that also to the value of the goods (which went to the Warden) plus yet another fine again equivalent to the goods' value which was to reimburse the authorities for their "trouble and expense".