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

36 Legal History in the Making
six days. 34 All too often, however, recovery became retaliation, through a
reprisal or distraint taken wherever sufficient goods could be found. The
laws of war allowed this - and the sanction of those laws was highly
relevant because a truce was only a suspension of war, not a peaceful
alternative to it, 35 and England and Scotland were not in fact at peace
at any time in the fourteenth and fifteenth centuries - with the proviso
that it was only permissible when all other means of obtaining redress
were exhausted. The Anglo-Scottish borderers accepted the lawfulness of
such retaliation (they usually referred to such acts as distraints, showing
that for them, as for the Italian jurist Baldus, reprisal and distraint were
synonymous) 36 but ignored the proviso. Reprisals could be taken on a large
scale. In an indenture of 1385 the earls of Northumberland and Douglas
undertook to prevent the 'gretter' men of either side from raiding the the
other with an 'oste'. 37 Just what might happen when one of those 'gretter'
men set out in pursuit of reprisals is shown by a petition to parliament in
1387-88 by William Heron (as lord of Ford castle a very important man
on the English east march), in which he told how, after he had suffered
losses estimated at £600 to Scottish raids, he had retaliated by taking a
distraint for which the earl of Northumberland, as warden, had later made
him give his victims 320 oxen and cows, 1600 sheep and £100 in cash. 38
There was a real risk that raiding and counter-raiding on this scale might
develop into open war. In 1386 and 1387 - the likely years, that is, of
the attack upon Heron and his retaliation - there was a truce in force
between Scotland and England, but the latter stood in serious danger
of invasion from France. It was a matter of some importance, therefore,
that the Scots should be dissuaded from military collaboration with their
traditional allies, and consequently essential that reprisals for breaches of
truce should be preempted by full and speedy redress given under process
of law.
March days, and the law administered at them, were primarily concerned
with redress - in the words of one fourteenth-century petition 'to amend
damages done on both sides and to establish the said peace'. 39 This was
hardly the case with the courts held by the wardens of the marches for the
maintenance of truces, courts which, as already observed, were in existence
by the middle of the fourteenth century. The latter were, indeed, increasingly
directed to punishing truce-breakers in accordance with march law, but since
punishment under the latter varied, being sometimes capital and sometimes
only financial, this may only represent an instruction to the wardens to keep
34
Rymer, Foedera, vii, 526-27; viii, 54-57; x, 330.
35
Keen, Laws of War, 104.
36
Keen, op. cit., 218-30.
37
A.P.S.,i, 713-14.
38
Rotuli Parliamentorum, iii (1783), 255-56.
39 SC8/62, no.3083.