Reivers - The Anglo Scots Border Laws of 1249
Law on the English\Scottish Borderline in Medieval Britain
Jan 31, 2009
Following the creation of theBorderline between England and Scotland there were almost two centuries of unrest and confrontation between the clans who lived on each side of its line of demarcation before some form of action was deemed necessary. They argued incessantly about land, the fruits and wood it bore, and the right to farm and pasture. The arguments often resulted in an upshot of violence which threatened the amity between the two countries.
The Final Agreement
In 1249 knights of both England and Scotland, on the orders of Henry 111 of England met to, firstly determine the Line of the Border so that all men should no longer have any doubts of its whereabouts, and, secondly, to institute a system of Law should its confines still be abused and transgressed. These laws were known as the Border Laws or Leges Marchiarum.
Recognition of the Strife
After 'perambulating' (walking) the Border Line, or at least a particular area in the east , from Berwick-upon-Tweed and westwards, the knights reached the conclusion that the main cause of the unrest and confrontation was what they termed 'wanton disregard and prejudice'. The turmoil had grown like a canker since the creation of the Border. The constant changes to its line left the peoples on each side of it constantly at odds with each other as they vied for the richest of the territory irrespective of its geographical situation.
Two Countries at Loggerheads
The people 'disregarded' the existence of a Borderline and,should anyone commit a crime in the opposite country, theft, maiming or murder, on return to his own realm, he would not be subject to the laws which pertained to his own country. Rather, he would be lauded for his strike at the people of what was now considered to be a foreign land. His guilt would be put aside. Justice would be 'prejudiced'.
A Unique Compromise
Thus the knights of England and Scotland formulated the Border Laws, unique in British history, and an attempt to bring the Border clans to heel. The culture between the Border people of England and Scotland might have been very similar, their heritage resulting from a common base, but where in the world has there ever been such an attempt to subject two different nations to the same laws?
Central to the Border Laws was 'Trial by Combat'
The Border Laws of 1249 would be reviewed, developed and changed at least seven times in their history down to the year 1596 but it is the original attempts of 1249 to bring order, justice and equanimity to a troubled land which demonstrate an approach which had its origins in a long lost culture which determined guilt or innocence by 'trial by combat'.
The 'Body of a Man' is Fundamental to the Border LawsIn theBorder Laws of 1249 great emphasis is given to this method of proving guilt or innocence. Again and again throughout the various clauses to the law it is emphasised that witnesses will not be allowed in any case where an Englishman accused a Scotsman or vice versa. The case could only be won or lost through the 'body of a man'. In other words by single combat.
A Modern and Unexpected ResurgenceToday 'trial by combat' might seem to be a somewhat farcical means of establishing guilt or innocence but it was only in 1819 that the law was repealed. In the previous year one, Abraham Thornton was cleared of the murder of Mary Ashton. Her brother was unhappy with the acquittal and appealed to the King's Bench.
At the retrial Thornton entered the court and threw down at the feet of Ashton a glove and challenged him to single combat. The prosecution stated that such an ancient unused law was not permitted but the judge, after much revision of the statute books, said the law still stood.
Ashton quickly declined the 'trial by combat' and Thornton walked away free. The law was repealed the following year.
Acknowledgements.
Howard Pease. The Lord Wardens of the English Scottish Marches.
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