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

The Early Development of the Laws of the Anglo-Scottish Marches 31
which would be fought on the Scottish side of the Sol way. Once proceedings
had got this far, the plaintiff could claim damages at will, and the defendant
must find sureties for their payment, whatever the sum named, otherwise, as
Henry Scot put it, he 'must undergo judgement as though legally convicted'.
If he did find sureties and was then defeated in the duel, however, he would
only have to pay two thirds of the sum demanded. Cases from Cumberland
and Northumberland in the 1290s point to similar proceedings in cases of
homicide, 11 the damages claimed here being doubtless the manbote - wergeld
- mentioned in the 1249 code. If this looks like another archaic survival, the
same can surely be said of the insistence on the defendant's finding sureties
and the consequence of his being unable to do so, strongly reminiscent as this
is of clauses in the laws of Cnut (possibly mediated through clause 12 of the
Assize of Clarendon) providing for the arrest and imprisonment, even for the
outright slaughter, followed by burial in unconsecrated ground, of men with
no sureties, 12 their absence being seen as a clear sign of unworthiness. But
although such considerations of antiquity may be of interest in the twentieth
century, they meant little in the thirteenth. Edward I was in Cumberland in
1280 and could have investigated the matter for himself if he had wanted to.
Whether or not he did so, what he learned from the inquest was so little to his
liking that in 1280 or 1281 he abolished the procedure described. Inevitably
the Scots followed suit. 13
At the end of a decade which produced several reports of groups of criminals
crossing the border from Scotland into England, 14 such a procedure was not
likely to be much help in keeping the peace in the Marches anyway. No doubt
it seemed better that the existing processes of the common law should be
adapted to the needs of the region. Hence the case recorded at a Newcastle
gaol delivery in 1308, when, after a thief had been convicted of stealing cows
at the suit of their owner - who was no less a figure than the son of the earl
of Dunbar - the latter demanded the return of his cattle 'in accordance with
the custom of the march between England and Scotland in use until now'. 15
The men of Northumberland, questioned about this by the justices, upheld
the claim, declaring that goods stolen in Scotland and carried into England,
or vice-versa, should indeed be returned to their owner if the thief had been
convicted at the former's suit 'before whatever justices', in other words, in a
properly constituted court. There is not likely to have been any shortage of
such courts, since in the English borders there were numerous liberties with
the franchise of gallows to supplement periodic visitations by gaol delivery
justices, just as in Scotland the justiciars' courts were reinforced by those of
11 JUST/1/137, m 13; JUST/1/652, m 36d.
12 English Historical Documents, 1, c. 500-1042, D. Whitelock, ed. (1955), 424.
13 What appears to be a simplified procedure at Berwick was recorded in 1293, Documents Illustrative
of the History of Scotland, J. Stevenson, ed. (Edinburgh, 1870), i, 392-93.
14 SCI/7, no.84; SCI/13, no. 156; SC8/277, no. 13807.
15 JUST/3/53/2, m 4/ld.