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32 Legal History in the Making
baronial jurisdiction, 16 of which pit and gallows were an essential component.
It is possible that the suit required for a successful prosecution represents a
survival of the six oath-helpers of 1249, but the text does not say so, and men
pursuing stolen livestock were in any case unlikely to go out unattended. The
earl of Dunbar's son was said to have been accompanied by the servant from
whose custody his livestock had been stolen, and it seems improbable that
this was the limit of his retinue; a man of his standing would surely have had
other attendants able to support his claim to his beasts, and so usually would
other plaintiffs. This was certainly, for a plaintiff, a much simpler and less
risky process than that described in 1280, and the only problem was that in
1308 England and Scotland were at war. At that date English arms still held
the initiative, if only just, but more significant was the fact that the earls of
Dunbar were then on the English side - one may doubt if such proceedings
would have taken place had the prosecutor been a notorious Scottish patriot.
In the end, as one might have expected, national enmities made the
procedure described in 1308 unviable. There was no chance of Englishmen
or Scots being able to go crossing the border in the hope of recovering stolen
goods through a court held in the opposing realm. There was no reversion to
the duel, however, as an impartial means of proof. Instead there developed the
use of the international jury, with equal numbers from both sides, employed in
the thirteenth century for civil purposes, and as a means of settling legal points
like the 1249 code, now used to decide upon the criminal cases which came to
form much of the business of the march days, the assemblies arranged between
representatives of both sides principally in order to secure the numerous truces
which interspersed outbreaks of open hostilities by providing restitution and
compensation for the acts of pillage and violence carried out in breach of those
truces. It is noteworthy that the procedure of 1308 had been specifically said to
apply in both realms. Changes in procedure would have had to be acceptable to
both sides if they were to win acceptance. How this was contrived is unknown,
though since the principle, and to some extent the practice, of the mixed
jury were known already, its use in criminal cases may have been a natural
development, using the only viable means of providing justice on cross-border
cases once that of 1308 had become impracticable. All that can be said for
certain is that in 1345 an ex-chamberlain of Berwick, in an action involving
goods taken at sea which was heard in the Exchequer of Pleas, stated that 'such
trespass done on the march between English and Scots should be terminated
before the justices of the same march, that is, by six men of England and six
of Scotland, and not elsewhere'. 17
Such a procedure was entirely in line with that found on national boundaries
elsewhere. In Gascony, for instance, cross-border robberies were amended at
a jour en marche by the decision of arbitri chosen from both sides. But
16 An Introduction to Scottish Legal History, Stair Society, xx (Edinburgh, 1958), 296.
17 E13/71,mm41,41d.