March law (Anglo-Scottish border)

They were "essentially a set of regulations for the prosecution of offences committed by the inhabitants of one country inside the territory of the other, and for the recovery of property stolen or lent across their common border".

[4] The 1249 text[5] has articles concerning: the proclaiming of the alleged offence on both sides of the border; the use of pledges to ensure that the plaintiffs and defendants turned up at the day of march; the use of jurors from both kingdoms; the payment of compensation to victims (such as "manbote" as regards murder); the method of proof in contested disputes (usually judicial duel or "wager of battle", known as "handwarcelle"); and the guarantee of sanctuary to those who confessed.

[7][8] The border disputes of the thirteenth century (before the setting-up of the Wardenial system) were usually settled, if the plaintiffs decided against using common law, by an enquiry made by the sheriff.

With the coming to power of Edward I of England and the almost continuous warfare due to the Scottish Wars of Independence, March law was effectively put into abeyance until the middle of the fourteenth-century.

[12] Richard II's reign saw a failed attempt by the English Crown to lessen the power of the northern magnates and to manipulate their hold on the Wardenships (the Wardens becoming paid officers by the end of the 1380s)[13] and it also saw intensive cross-border raiding and destruction.

However, the use of border law was strengthened, perhaps because the region fell more closely under the influence of the Wardens (particularly the Percys and Nevilles in England and the Douglas family in Scotland).

These included: homicide, the carrying off of persons, ransom-taking, the taking of castles, fortresses and walled towns, armed and mounted raids, and cattle reiving (theft).

The borderers suffered much deprivation due to cross-border raiding and recourse to the common law failed to bring any restitution, even when the justices were present to hold the assizes.

Procedures were laid down; for example, amongst other provisions, suspects who had attacked people moving under safe conduct were to be handed over to the Wardens of the opposite realm for punishment; challenges made by defendants were to be submitted to a mixed English and Scottish jury; English jurors were to be nominated by the Scots and vice versa; a kind of extradition system was devised; days of march were to have clerks available to make written records of proceedings; goods stolen by raiders from the opposite side of the border but found on the victim's side were to be argued over at a future day of march.

The provisions in the 1429 indentures were the first real attempt to bring the Anglo-Scottish border into the ambit of international law, rather than relying on the ad hoc, intermittent activity of local magnates (the Warden-Conservators).

[20] Edward IV of England took advantage of the Scots' reluctance to support Henry VI to maintain the relatively favourable conditions in which March law had been operating.

In 1484, Richard and James made an attempt (like many monarchs before them) to lessen the power of their 'over-mighty subjects' in the border lands by separating the wardenial work from that of the Conservators of the truce.

The indenture signed between them made the Wardens strictly responsible for military operations, but the chasing down and prosecution of criminals in the borders remained in the hands of 'lesser' lords who had intimate knowledge of local affairs.

The treaty of peace and marriage of 1502 had clauses related to how the Wardens or their deputies should notify their opposite march officials within ten days of the arrest of suspects and of the charges against the latter.

On the English side, Henry continued the practice of Richard III who had been awarded the wardenship of the West march when Duke of Gloucester, and, on becoming King, had retained the title of Warden, appointing a lieutenant or deputy-warden to do the work.

Done to save expense, as well as to reduce the power of the great northern magnates, this act saw the beginning of the end of the wardenship as it had been previously and the rise of the Council of the North to prominence cemented this development.

March law continued under Henry's Tudor successors, only being abolished when the Union of the Crowns took place and James VI of Scotland and I of England dealt a final blow to the Border reivers.

[23] The Bishop of Carlisle, William Nicolson, in his 1705 compilation of treaties called Leges Marchiarum that dealt with border law, included those of 1533 (Henri VIII); 1549 (Edward VI); 1553 (Mary I); 1563 and 1596 (both of Elizabeth I).

Firstly, although there was a northern assize circuit in operation in mediaeval times, "as the kings of England quickly learned after 1237, the substantive and procedural rules of the common law were ill-equipped to cope with the problems attendant on the establishment of an artificial political boundary."

[30] For example, the use of "hand and horne" (also known as "hot and cold trod" from the fifteenth century on) in the pursuit of stolen goods, which was similar to the English hue and cry but permitting the crossing of borders, was a Scottish custom.

[35] However, prior to that century, various favourite places were used and included Hadden Stank, Redden Burn, and Lochmaben in the Scottish West marches (plus Gretna, Dumfries and Lilliot Cross occasionally).

In the English West march, the Sands (in Carlisle), Rockcliffe and Kershopefoot were used and in the East, Norham, Coldstream, Wark, Ebchester and Berwick-upon-Tweed were mentioned in the records.

This linking of national and local concerns at "great days of march" (when ambassadors might be present as well as the Warden-Conservators) was a deliberate ploy from Edward III's time onwards.

Although Neville lays emphasis on the mixed jury of English and Scottish, Fraser shows how, in the sixteenth-century at least, bills of complaint brought to the days of march could also be settled by the process of 'avower' (an 'avower' being a "countryman of the accused's, acceptable as a referee to both plaintiff and defendant, who would swear to the truth of the case").

[45] Given the kinship ties between the border 'clans' (across the border line as well as either side of it), which meant that the Wardens could often not trust their officers to carry out their orders;[46] given the threats to potential witnesses; the use of blackmail (a word first heard of in the borderlands of England and Scotland); and given the collusion of some of the local magnates, lairds and Wardens, it is not surprising that March law "could and did sometimes work surprisingly well, but it was at best a finger in the dyke.