|
Page xvi:-
people, contented themselves with endeavouring to restrain
them, by giving authority to those ordinances by which they
had endeavoured, from immemorial times, though in vain, to
regulate themselves. It must be allowed, that since the
mischiefs could not be totally erazed by any regulations of
government, that such an establishment of customs promised
as fair for this purpose as any thing: as the customs were
originally conformable to their own disposition, perfectly
known to them, and more especially as from the foregoing
circumstances. Men (to use one of Voltaire's phrases,) could
not in this case be said to be made for laws, but laws for
men. There rests yet, in the foregoing sentences, and in the
confirmation which they receive from history, a strong and
effectual proof of what I formerly advanced, viz.
that very little alteration had taken place in these parts,
from very remote ages to times immediately preceding Queen
Elizabeth; and though, perhaps, no people altered very far
in that period, yet I think this altered the least of any,
either in manners or condition.
|
|
It seems natural, therefore, that towards giving a more
compleat notion of the people, I should give a summary
account of some of their laws: they have been printed at
large form S. Nicholson's manuscripts, and therefore a full
account of them is neither a part of my business, nor an
entire comment adapted to my limits.
I shall, however, begin with a law mentioned by Cambden. No
one but a Scotsman could be admitted as an evidence against
a Scotsman, nor any one but an Englishman against an
Englishman. This was surely a very fortunate law for
thieves, and more especially for those of the debateable
ground; who, from their situation, could be of either
nation, or of neither, as they pleased. This law, however,
could only extend to particular matters; since there is
another in Nicholson's collection, expressly declaring, that
no inhabitant of either kingdom, could, by means of
witnesses, prove his property in any thing possessed by an
inhabitant of the other; for such proof could only be made
by the body of a man, that is by combat; and so
numerous were the causes of litigation, that these combats
ensued continually. The Marches, moreover, were the places
where all such trials, whether for murder or theft, were to
take place between the inhabitants of the two kingdoms; and
no man accused of these, or any other crime that ought to
be tried by single combat, was bound to answer for them
elsewhere. For this reason, there were particular places
fixed upon and set apart for that purpose; and to those
places might all men, betwixt Tolness in England and
Caithness in Scotland, excepting the two Kings and certain
Bishops, be summoned conformable to custom, and required to
decide their quarrels by combat. I believe that the
Borderers had the good effects of this law almost entirely
to themselves, nor do I remember to have heard or read of
more than two instances in which strangers availed
themselves of it. Between the interior parts of the two
kingdoms there was not much commerce of any kind; but the
commerce of injuries in particular could not extend far,
especially in times of peace, for which only laws could be
made; partly, because the force employed in the petty
infractions of quiet was not capable of a wide direction,
and partly from the very nature of the incursions
themselves. There was a law also which regarded the flight
of a vassal into either kingdom, whereby, if demanded upon
oath within six weeks, he might be recovered by his lord,
whether he had fled with or without his goods; but if the
demand was made later than that time, the recovery of him
was attended with greater difficulty. Debts were to be
recovered by an oath taken by the creditor in person upon
the Marches, nor were any allowed to make claims of this
kind by proxies except the Kings and Bishops before
mentioned. The laws which respect these transactions are
pretty similar to those which took place in other parts;
only, if a debtor of low rank could get other six persons to
join with him in swearing that he owed no such debt, he
might be acquitted of it. But in matters touching life and
limb, and indeed in every claim, a personal attendance to
prosecute the quarrel or cause by oath was required of every
one but those before excepted; and without this, unless a
deputation was made by the consent of both parties, a man's
plea was lost for ever. Tho' the foregoing law did not
contain much extraordinary matter, yet its want of
singularity is fully compensated by one which immediately
follows it: for it is there de-
|
Lakes Guides menu.
