Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

30 Legal History in the Making
'by the oath of six lawful men and himself the seventh' - the oath-helpers
look as much like a posse of pursuers as a means of proof. But the judicial
combat which the laws allowed as an alternative to compurgation, and which
was in fact the only accepted means of settling disputed issues, was unknown
in either country before 1066. The fiefs in whose courts it was laid down that
compurgation might take place were likewise a product of the Anglo-Norman
feudalism of the twelfth century, while the burgesses who might be distrained
in one country for the debts incurred by their fellows in another, though found
in increasing numbers in the border shires as the twelfth century progressed,
are not recorded there any earlier. Although the 1249 code was produced by
the sworn oath of twelve knights of each kingdom, and on previous occasions
men from the two realms had met to pronounce on disputed issues, above
all on the course of the border line itself, 6 there was no role for the jury as
a means of proof. Perhaps this was the result of mutual suspicion, 7 perhaps
just of conservatism. The position of the sworn inquest as a means of proof
in criminal cases was finally established in Scotland only in 1230 ; 8 in England
barely ten years before that, and it would certainly take time to make it
acceptable to both sides on the marches, where the duel seems to have
become very well entrenched, even the clergy being obliged to take part in
person. 9 But conservatism was no bar to change and the 1249 code, for all its
archaisms, bears, as observed above, unmistakeable signs of development and
adaptation during the not-too-distant past.
Many changes would have been self-generating, made to meet the needs
of the time. But there was also the possibility of external intervention. The
state of their borders and relations between their realms were naturally of
close interest to the kings of England and Scots; indeed the willingness of
their subjects to invoke that interest is responsible for a good deal of the
source material for this essay. A petition to Edward I by one Henry Scot,
who bought a horse at Carlisle fair, probably in 1279, and was later charged
with being in possession of stolen goods, sheds light both on the operation of
march law in the late thirteenth century and on how royal action could lead
to its modification. 10 An inquest held in 1380 on Henry's petition told how
a man robbed who believed his property had been taken from one kingdom
to the other must himself cross the border and publicize the crime. If he
found the robber within forty days, he should secure a writ from the sheriff
of Cumberland to the sheriff of Dumfriesshire - that is, if the suspect had fled
to England - giving notice of the duel by which the issue would be decided, and
6
Calendar of Documents relating to Scotland, J. Bain, ed. 4 vols. (Edinburgh, 1881-88), i, no.1749;
Barrow, op. cit., 155-56.
7
A. A.M. Duncan, Scotland: The Making of the Kingdom (Edinburgh, 1978), 537-38.
8
I.D. Willock, The Origins and Development of the Jury in Scotland, Stair Society, xxiii (Edinburgh,
1966), 23.
9
Councils and Synods II, Parti, P.M. Powicke and C.R. Cheney, ed. (Oxford, 1964), 283-84.
10 Bain, op. cit., ii, no. 183.