Border Laws

The Border-Laws - The Commission of 1597

Queen Elizabeth

1596

To all Christian People to whom these Presents shall come, We Tobie, by God’s Providence, Bishop of Durisme, Sir William Bowes, Kt. Francis Slingsbie, Esq; and Clement Colmer, Doctor of Law, Commissioners of the most High, the most Excellent and Mighty Princes, ELIZABETH, by the Grace of God, Queen of England, France and Ireland, Defender of the Faith, &c.

And we Peter, by the Grace of God, Bishop of Dunkell, one of the Senators of the College of Justice within Scotland, Sir George Hume of Wedderburn, Kt. Andrew Kerr of Fawdonside, and Mr. George Young, Archdean of St. Andrews, Commissioners for the Right High, the Right Excellent and Mighty Prince JAMES the Sixth, King of Scots, send greeting in our Lord God everlasting.

KNOW ye, That we the said Commissioners having met here in the City of Carlisle, in the Name of Almighty God, and for obedience of our Soveraigns Directions, given us by their Commissions under their Great Seals, and having ordered all Complaints presented to us throughout all the Marches of both the Realms, and thereby made our selves acquainted with the lamentable effects which the Lawless and Disobedient Disposition of the most part of the Inhabitants thereof, imboldned with long impunity and toleration of careless Officers, hath wrought between the Marches, to the offences of God’s most Holy Majesty, the great dishonour of the Princes, and pitiful Desolation of both the Borders, exhausted by these means both of Inhabitants and Goods, and being ripely and at length advised upon the apparent Causes of these great Disorders, have (in the Fear of God, and with due Reverence to our Soveraign Princes) resolved upon these Remedies, as likliest means, in our Opinions, both to redress the former Wrongs, and to prevent the like Confusion in time to come.

1) FIRST, That the Princes be most humbly and earnestly intreated to cause God’s Ministers of the Word to be planted at every Border Church, to inform the Lawless People of their Duty, and to watch over their Manners, and that the Principal Inhabitants of each Parish shall put Surety to their Prince for Due Reference to be used towards their Pastors in their Officers, and the safety of their Persons ; and that to this effect, order may be timely taken for reparation of the Decayed Churches within the Bounds.

2) LIKEWISE for the prevention of such great Enormities and Mischiefs as of late Years have undone the Borders, and disquieted the Peace between the Realms, the Soveraigns on either side shall in all humility be intreated to vhuse and establish a Council in every Marche, of the most Sufficient and Discreet Borderers inhabiting the Bounds thereof, who shall conveen twice in the Year, for such effect, and at such time and place, as by the particular Commissioners shall be appointed unto them.

3) THAT the Wardens yearly at the first Day of Trews after Midsummer, to be holden within four Days at the furthest after the said Feast, shall shew their Commissions either of them to other interchangeably, the Copies thereof under their Hands, and give and receive reciprocally their Solemn Oath, both to do Justice in their several Offices, without respect of Persons, or any Sinister Affection, and speer, fyle and deliver, upon their Honours, according to the former Treaties.

4) THAT every Warden in time to come shall be bound, by his foresaid Oath, to speer out whatsoever Attempt committed against any Inhabitants of the opposite Realm, within any Complaint in his Marche, exceeding the number of five Persons, and fyle the same upon his Honour, and deliver therefore (within fifteen Days after he be required thereto by his opposite Officer) under the pain of paying the Bill himself. PROVIDED always that Requisition be made within Forty Eight Hours after the committing of the Attempt.

5) THAT the Wardens in fyleing and clearing upon their Honours, shall set down in the Margin of every Bill fyled and cleared by them, (foul or clear, as I am verily perswaded upon my Conscience and Honour) and such Bills as they will not fyle or clear within the said Fifteen Days, by these words, or such like in effect, the same being signified unto them within the foresaid Space of 48 Hours, to be foul upon themselves for their Neglect of Duty in that behalf.

6) THAT no Warden or Keeper ride hereafter in Person, or direct any to ride hereafter by his Commandment or Causing, in hostile manner within the opposite Realm, without a special Command first had thereto from his Prince, under his Hand and Seal, under the pain to be accounted a publick Enemy of the Peace : And whosoever shall accompany him to any such unlawful Act, or ride at his Command in manner aforesaid, shall lose for ever all manner of Redress of any Offence done to them before the date of the said Rode, and nevertheless shall satisfie the Party grieved for Skaith and Damage, according to the Laws of the March.

7) THAT the Border-Council aforesaid, at their Conveenings and Meetings, shall make diligent Enquiry and Tryal of all Notorious Theives and Robbers within their Wardenry ; and, such as they find to be of that Quality, that they inroll them under their hands, and deliver a Copy of the same unto their Warden ; who shall, upon the first Attempt that shall be truly tryed and fyled upon any of them hereafter, put the said Offender immediately to death ; Or, in case he be Fugitive, shall cause to be proclaim’d such an one, according to the Order and Customs of the Borders, and his House immediately to be demolish’d and destroyed, that it serve him no more for Receipt within that Wardenry.

8) IF it fall out, that any deadly Feede be born against any of the Opposite Realm, for executing of any Thief by Justice, or killing him with Reed-hand, whereas he findeth him stealing, or clad with stollen Goods, or for pursuing him to death by whatsoever lawful means : The Warden, to whose Office he appertaineth, upon signification made to him of the said Feede, shal apprehend the said Party so bearing feede, and either cause him presently to renounce the said Feede by Writing under his Hand, or shall deliver him to the opposite Warden, to be kept by him until he have renounced the said Feede as aforesaid, and found Surety to that effect, to the content of the Party Plaintiff : A this to be extended to all Feedes presently standing for Causes by-past, bewteen the Borderers of both the Realms, as well as for the time to come.

9) CONCERNING Manslaughter, it is ordained, That the former Treaty made thereupon, shall stand in full effect and force, with this addition, That whensoever any Slaughter shall be committed in time to come, between the Inhabitants of the Marches, the Wardens shall do Justice therein precisely within fifteen days after they shall be required thereto by their Opposites, under the pain of Ten Pounds Sterling, to be paid by the Warden making default, to the Party grieved, for every Month during his delay of Justice ; without further following of the Offender, according to the Treaties in that behalf provided.

10) THAT in time to come, yf any Warden or other Officer, have two opposite Marches to answer unto, and to be answered of, in case he be denied Justice by any of his opposite Officers, shall nertheless proceed in Justice with the other, leaving the Refuser to be ordered by the Princes and their Councils.

11) 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 mean time 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.

12) FOR masterful and violent Theft and Reife, by Night or Day, and for secret stealing, wherewith is joined either bodily hurt of Men, Woman, and Children, or violent Resistance against the Followers in hot and fresh Pursuit of their Goods ; it is ordered, That (besides the ordinary Redress to be made of the Goods) any one of the Offenders, whom the Complainant shall chuse, shall be delivered to the opposite Warden, to be punished at his discretion, according to the quality of the Offence.

13) THAT the Wardens hereafter take good heed, in every March, that none of the broken Borderers be suffered to keep in their Companies any idle Persons, not employed in any honest Service or Trade ; and likewise that no idle Persons be suffered to remain in the Border-Villages or Alehouses ; certifying such as shall be billable for their so doing, as if they had actually receipted the Goods by them so stolen.

14) YF any Person shall maliciously trouble or molest another, in causing him to be arrested to the day of Trews without just cause, the Warden (upon knowledge thereof) shall see the Party so troubled satisfied for his Damage and Expences, which he sustained there-through. And, for the better tryal thereof, the Party Complainant shall be bound to take his Oath, that he is perswaded he hath just cause to pursue that Bill against the Person which he hath casued to be arrested.

15) YF it shall happen any Person to have bõna fide in his Possession stolen Goods, not knowing them to be stolen, in case he be not sued therefore within Year and Day, the Goods shall remain with him ever after, as his own proper Goods. And, if within that Space he be sued for that same, he shall give good and sufficient Proof of his Innocency before the Wardens or their Deputies ; and shall give up and nominate a responsible Debtor, of whom he had the same Goods. And this to excuse none that are privy to Theft, or any ways Partakers, Concealers, Hiders or Keepers up of stolen Goods, but that the Ancient Laws and Custome be executed upon them

16) FOR Eschewing of Perjury, in Swearing of Bills in time to come, it is ordained, That every Man swear his own Bill ; otherwise to have no Delivery for the same.

17) YF any Man unjustly trouble or offend another in word or deed, any time hereafter, for fyling and Bill hereafter against him, he shall never be heard to back-bill against the Avower ; and nevertheless shall be punished therefore by the Warden, according to the quality of the Offence.

18) FOR eschewing of fraudulent drift and delay used in back-billing, of purpose to disappoint the Avower of his Proofs which he hath or may have presently to his word, It is ordained, That whosoever shall back-bill against any Avower, shall do it against or within Forty days after the filing, or else to be excluded from the Remedy for ever ; and, to that effect, every Warden shall be bound to hold Warden-Courts, and to do Justice within Twenty days after he shall be required by the Party, under the pain of paying the Bill himself.

19) THAT in time to come, causing and commanding (being billed in any Complaint) shall be no less Criminal, then having, stealing, and receipting.

20) YF any Borderer hereafter procure any of the opposite Nation to be bound for him, by Word or Writing, and relieve him not in due time of the said Bond, whereby the Surety shall be compelled to pay the Summe for which he gave his Bond, (or, in case he dye) his Heirs, Executors, or Assigns shall be adjudged in time to come by the Warden to repair the said Summ to the Complainant, or (in case he dye) to the Heirs, Executors, or Assigns of the said Surety ; notwithstanding there be no mention of the words, Heirs, Executors, or Assigns, in the said Bond.

PROVIDED always, that they prove their Intention and Claim, either by sufficient Bond in Writing, or by a lawful Vower of the opposite Nation, according to the Custom abd Treaties.

21) IT IS likewise agreed, That except both Parties (or, at least, the Party Defendant) be inhabitant within the Marche, Actions of Debt shall not be tryed before the Warden, but before the ordinary Judges ; in which case the Marches shall be understood ; the English from Newcastle and Perithe, and the Scots from Edinburgh and Dumfries, exclusively.

22) THAT where diverse Offences are billed for, in one and the same Complaint, the Party Defendant (upon his appearance) shall be filed of no more Crimes therein contained, then shall be specially recorded upon the Margin of his Bill by the opposite hand.

23) IT IS likewise ordered, That all Bills fyled by us and by our Order, or to be fyled in time to come by Commissioners or Wardens, which shall be found (at the time of Delivery or Swearing) to be interlined in any matter, Point, or Name, the Words or Names so interlin’d shall be of no effect or force, but taken as unwritten, Except the same have been, or shall be by the Privy and Consent of us the Commissioners inserted, or of the Commissioners for the time to come. And, to the end that the same may be the better known, that the principal Complaint be as well presented at the time of the Delivery, as the Indents.

24) THAT, for the better repressing of the manifold Disorders, arising (for the most part) of the recepting of Fugitives exiled for Theft out of their native Realm ; the Wardens shall (before the last day of June) inroll the Names of all such Persons within their March, as they have given up for Fugitives in time of this Treaty, together with such other Fugitives for Theft and Robbing, as they can try to be receipted within their opposite March ; albeit they be not complained on at this time ; and fend the said Bills to their Opposites, subscribed with their Hands ; together with their Request, to cause so many of them as are receipted within their Bounds, to be safely and securely apprehended and delivered according to the Treaties : Which being received by the Opposite, he shall either perform him the Contents thereof with all possible Secrecy and Diligence, as he will answer to his Sovereign if he fail therein. Or else, if he cannot apprehend them, he shall declare them to be Fugitives throughout his March, and cause them to be declared throughout the Marches of that Realm ; and, after the said Proclamation, shall cause their Houses and Shields to be destroyed within their Office, and not suffer them to be receipt within the same for ever after, to his knowledge, under the pain to be reputed (in so doing) an Entertainer of Publick Enemies to the Peace between the Realms, and to be answerable to the Party grieved for all such Attempts as shall be committed by them in the mean time.

25) CONCERNING the Residue of the Complaints, if any rest as yet unordered, it is ordained, That all the Wardens shall (between this and the 10th of June next ensuing) interchange their Rolls with their Opposites, and within eight days after, shall by themselves or their Deputies ; (meeting at their usual Places) return and deliver them on either side to their Opposites, either fyled or cleared upon their honour, under pain of paying the Bills themselves which they refuse either to fyle or clear within that Space ; without prejudice always to the Complainant, to use an Avower if he have any, and thereby to claim Double and Sawfew.

26) LIKEWISE, for the better Assurance of Delivery, and Redress of Bills, fyled by us during this Treaty, as also for the like Redress of Bills fyled by the last Commissioners in February 1587, included in this Treaty, and for keeping of the Borders in quiet, till that full Delivery for both be made ; That two or more of every Sirname of broken Men, on either side, as the same is of quantity, being of equal Rank, to be named and given in Bill by the Opposite Officer, shall be entered to the said Opposite as Pledges for the said Bill fyled and to be fyled upon themselves and the rest of their Sirname.

27) THAT for the Bills fyled as aforesaid, and to be fyled by us, upon such Border-Men and others as are not of any known Clanne, that the Warden shall enter every of them a Gent. to remain with his Opposite till full Delivery be made of such Bills as he shall enter for.

28) THAT their entry shall be to their opposite Officer between the day of the date of this Indent, and the first of July next.

29) THAT the Princes on either side shall be intreated to appoint, in every Marche, some Commissioners to see the same take effect.

30) THAT being entred they 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.

31) THAT their remaining in the opposite Realms shall be no longer than the Bills filed, and to be filed in order, together with such other Bills as by the last Commissioners were filed upon them and their whole Sirname, for the which they entred Pledges, be duly satisfied and redressed according to the Filing.

32) THAT if any of them being entred depart this Life, during his abode in the opposite Realm, another broken man of his Sirname (at the choice of the opposite Officer) shall be entered in his place.

33) THAT the broken Pledges entred shall be subject to cause the Bills Filed, and to be Filed, by our Order, as likewise by the order of the last Commissioners included in this Treaty, upon their whole Sirname, at that hand to be redressed within a Year and Day after the date of these our Indentures ; within which space, if the said whole Bills, filed and to be filed on their Sirname as aforesaid, be not redressed, it shall be in the choice of the Prince or Officer (in whose hands they remain) to take their Lives, or to retain or seize them at their pleasure till the said delivery be made.

34) THAT this entry shall no wise be executed to the redress of Slaughters, but so far forth as the Commissioners shall agree and appoint in the Treaty thereupon.

35) IT is agreed in like manner by the Commissioners, That the Pledges entred shall lye for all and whatsoever Attempts filed by the Wardens (at their several Meetings) upon any of their Sirnames on that side whereof no Reparation nor Redress hath followed ; as likewise, whatsoever other Attempts to be committed by any of their Sirnames aforesaid, from the day of our Dissolving till the day of their Liberty, and cause the one and the other to be repaired within the foresaid space at their perils.

36) LIKEWISE it is agreed by the said Commissioners for England, That in respect the said Commissioners for Scotland have willingly consented both to begin and prosecute this Treaty within England, that therefore the next Treaty of Commissioners shall hold within Scotland ; except the Princes, or their Commissioners for the time, otherwise agree. For whose Indemnity, in the mean time, His Majesty shall give a sufficient safe Conduct, if it be required.