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Page xvii:-
[de]clared, that in every plea between a plaintiff and
defendant that affected life and limb, that is, which was to
be decided by combat, if the defendant happened to die
within the fifteen days preceding the day of trial, his body
should be carried to the Marches at the time, and to the
place appointed between the two parties, because no man can
be assoigned by death. Again, When the appellant
delayed his appearance beyond the appointed day, the
defendant ought to pass to the Marches, and obtain an
attestation from three Barons that he had regularly made his
appearance on the day prefixed; and this being signed by
them, he was totally exempted from being liable to any
challenge upon that score for the future. He had also a
right, if any, or all of those Barons to whom he made
application should refuse to give such testimony, to oblige
even them to decide the matter by combat; and the same
privilege extended also to the appellant. Stolen goods were,
like debts, demanded upon oath, and might be recovered,
unless the person in whose possession they were found chose
to deny it; the matter was then referred to the usual mode
of decision. With respect to the issue, or, to speak more in
the language of the times, conviction of these trials by
combat, it is worthy of notice, that whether a person was
found guilty, by this means, of theft, or robbery, or
murder, his atonement was made by a forfeiture of goods, and
he was obliged to find sureties for the completion of this
atonement; in consequence of which, there were particular
laws respecting the convict, his sureties, and the pursuer.
An asylum was, amongst the other circumstances of these
laws, allowed to any malefactor who fled from one kingdom to
the other: and when he passed from one district or province
of the kingdom, in which he had taken refuge, he was
entitled to protection upon application to the Sheriff of
that district or province into which he entered: or if he
could not find the Sheriff, he might still obtain peace and
protection, by ringing the bells of the first church at
which he arrived within such precincts: but on the contrary,
if he could be seized by those from whom he had escaped
before he performed what was by them called "obtaining
peace," in this manner, he might be carried back without
opposition. Yet when a quarrel arrived at those
circumstances, in which it could only be decided by combat;
that is, when one person denied the claim of another, it
might still be evaded within the fifteen days, which were
generally allowed by ancient custom, as preparatory to such
decision: for it was provided, that if the person accused
should bring the animal, on account of which the litigation
had risen, to the Marches on the day appointed for the
combat, and there inform the opposite party that he believed
that the property in question belonged to that party, he was
exempted from the necessity of a combat; but was obliged to
drive the animal into the Tweed or Esk; and if it was
drowned before it reached the mid-stream, he was still
answerable for it. We know not how they managed this
business when the matter of dispute was such as could
neither wade nor swim across, for we find no institution
regarding the restoration of inanimate property.
It is needless to make any further reflection upon these
laws, than what every one will make upon perusing them in
these days of regularity and peace, viz. What such
mortals must they have been, amongst whom such customs had
prevailed from immemorial times, and for whom such laws were
fabricated! However, from what is already said on this
subject, I think any person may form some idea of the men
who formerly inhabited the districts comprehended in these
plans, and the parts contiguous. To be more copious would,
perhaps, be superfluous, as any reader of common attention
may find abundant examples of their temper and manner of
life in the history of the dissensions and wars between the
English and Scots. I only beg leave to mention here, that
the lands were held by a sort of military service peculiar
to their situation; that when the beacons were fired, every
man was to become a soldier; and that the hornage,
sergeant's-oats, and a vast number of other dues, rents, and
perquisites, of an almost singular kind, are to this hour
indubitable proofs of the unhappy condition of these
counties in former times. I think also, that I have said
enough towards proving my original propositions concerning
the leading characteristics which marked the people of the
Northern parts of England, and towards demonstrating the
effects of habitual infelicity, and a life never void of
fear. I shall therefore conclude this subject
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