March law (Anglo-Scottish border) (or Marcher law, or laws and customs of the marches) was a system of customary international law dealing with cross-border dispute settlement, operating during the medieval and early-modern periods in the area of the Anglo-Scottish border or Anglo-Scottish marches. The word "march" is the Old English form of the Old French word "marche" meaning "boundary", and its use was not unique to the Anglo-Scottish border - the Anglo-Welsh border and the Anglo-Irish marches had their own versions of "the Law of the Marches". They were "essentially a set of regulations for the prosecution of offences committed by the inhabitants of one country inside the territory of the other, and for the recovery of property stolen or lent across their common border".
The laws were administered (from the late thirteenth-century onwards) by the Wardens of the Marches in times of war between England and Scotland, and by "conservators of the truce" in times of peace, although, given that periods of truce were invariably subject to cross-border raiding, piracy and ransom-taking, the two roles were often amalgamated into that of "warden-conservator". The work of the courts was done at periodic gatherings of plaintiffs and defendants, along with the designated warden-conservators and the jurors ("recognitors") from both England and Scotland, at a pre-decided place either side of the border line on what were called "days of march" (or "days of truce").
In England, March law ran side-by-side with English common law, often in an unclear way (and with the latter sometimes being subverted by the Wardens to their own ends). As well as common law, March Law had elements of equity and military law in its make-up.
March law was usually most in force during times of truce, as, during times of war with the Scots, the English Crown, claiming sovereignty over Scottish territory, would refuse to recognise a separate judicial entity in Scotland.
Background From the First War of Scottish Independence to 1603 and the Union of the Crowns, the borderlands of England and Scotland suffered from armed raids and open warfare. The warfare was driven by the attempts of the English crown to claim suzerainty over Scotland and the consequent resistance of the Scottish crown. In addition, the Scottish Crown would often support the French in the latter's wars with England (the "auld alliance"). The raiding was due to armed bands of local magnates, lairds or clan chiefs and their retainers (the border reivers) on both sides of the Anglo-Scottish border (including sometimes the Wardens' own men) crossing the border to take captives and/or animals and wreak damage on property.
Because of the threat of war and/or raiding, it simply was not worth local people raising crops or animals with any expectation of keeping hold of them; the result was that clans on both sides of the border, especially in the more remote regions, became mobile or semipermanent residents, stealing others' crops and animals in order to feed themselves.
The lack of effective Royal landholding in the region, plus the difficulties in getting to the remote regions concerned, meant that peacekeeping power was devolved to the great northern families who were themselves often in conflict with the Crown and with each other. Compensation paid to victims was defrayed out of the magnates' own pockets, so this meant that they had an interest in using raiding to claw back their expenses.
The result was devastation for local people on either side of the border for three hundred years. Raids and retaliatory raiding took place regularly even during times of formal truce between the two countries. Access to justice for victims, especially as regards compensation, was virtually impossible via the normal legal methods. Felons simply crossed the border to escape capture and to evade the relevant legal system that would have applied to the local inhabitants. There was no compensation or restitution available either under existing law. Hence the need for an alternative – the March law.Fraser, 1971, p.9–18
Origins The origins of March law are obscure and have been the subject of some dispute. The (first) codification of 1249 (when twelve knights, six each from England and Scotland, convened on the border to write down "the laws and customs of the march" at the instigation of Henry III of England and Alexander II of Scotland) seems to refer to practices dating back some time. Some historians have suggested pre-Norman origins; others have said that there is a mixture of pre-Norman and post-Norman elements in the code.
The 1249 text has articles concerning: the proclaiming of the alleged offence on both sides of the border; the use of pledges to ensure that the plaintiffs and defendants turned up at the day of march; the use of jurors from both kingdoms; the payment of compensation to victims (such as "manbote" as regards murder); the method of proof in contested disputes (usually judicial duel or "wager of battle", known as "handwarcelle"); and the guarantee of sanctuary to those who confessed.Neville, 1998, p. 10 Eleven of the thirteen clauses were concerned with apprehending offenders; the types of offences were not listed, but were probably to do with acts against the person and property.Neville, 1998, p.6Neville, 1994, p. 3
The border disputes of the thirteenth century (before the setting-up of the Wardenial system) were usually settled, if the plaintiffs decided against using common law, by an enquiry made by the sheriff. The use of English common law or Chancery writs was a competing system of justice in the borders.
Later developments
March law in the 14th century With the coming to power of Edward I of England and the almost continuous warfare due to the Scottish Wars of Independence, March law was effectively put into abeyance until the middle of the fourteenth-century. The beginning of the First War of Scottish Independence in 1296 saw the establishment of the system of Wardens and Conservators mentioned above. At first, the judicial capacity of the Wardens was restricted to matters of military import (e.g. arresting those attempting to evade military service). However, the 1320s saw the Conservators, in times of peace, take on the judicial role that had previously belonged to the sheriffs.Neville, 1998, pp. 20, 26
Initially - in England at least - the Marches were initially referred to the counties they overlaid with, West March was known initially as Cumberland and Westmorland March. Until 1381, with the death of the last Umfraville earl of Angus, there was Northumberland march which became known as East March in 1345.Armstrong, Jackson W. England’s Northern Frontier: Conflict and Local Society in the Fifteenth-Century Scottish Marches. Cambridge University Press, 2020., p58 Following the Liberty of Tynedale reverting to England, the Middle March was created.Reid, R. R. (1917). The Office of Warden of the Marches; Its Origin and Early History. The English Historical Review, 32(128), p486-487. http://www.jstor.org/stable/550854
Following this Edward III wanted to keep the peace on the Scottish border while he was involved in France, the Wardens were given the Conservators' judicial functions in addition to their own military ones. The Wardens' courts operated in tandem with common law ones, and were held in addition to those at the days of truce.Neville, 1998, pp. 38, 40
Edward III made further attempts to involve the Crown with border law, and to regularise its machinery. He appointed Thomas Beauchamp, 11th Earl of Warwick to join the Wardens as their supervisor; the 1367 commission included the requirement to have a quorum (of two) on the judicial bench; days of march were agreed on in advance; felons were required to be presented by English and Scottish juries before being sent before the Warden and a mixed tribunal (assuming not yet proven guilty); the guilty had to make restitution within fifteen days (if they had no goods to hand over and no lord to vouch for them, they were set to ransom); sheriffs were told to assist the Wardens in capturing suspects who had taken flight; for the first time, lesser nobility were brought into the system as conservators.Neville, 1998, pp. 52–54
Richard II's reign saw a failed attempt by the English Crown to lessen the power of the northern magnates and to manipulate their hold on the Wardenships (the Wardens becoming paid officers by the end of the 1380s) and it also saw intensive cross-border raiding and destruction. However, the use of border law was strengthened, perhaps because the region fell more closely under the influence of the Wardens (particularly the Percys and Nevilles in England and the Douglas family in Scotland). For example, the problem of felons fleeing to the various liberties, where the King's writ did not run, was partially solved by making the lord of one of the largest of them (the Bishop of Durham who held the Liberty of Durham) Warden of the East March. Distraining ('poinding') was abolished in 1386 as being unworkable, and responsibility for compensation was given to the Wardens alone.Neville, 1998, pp. 76, 77
The indenture relating to the truce of 1386 between the English and Scots clarified the types of offences against truces that would be subject to border law. These included: homicide, the carrying off of persons, ransom-taking, the taking of castles, fortresses and walled towns, armed and mounted raids, and cattle reiving (theft). In 1397, it was agreed that written bills of complaint would be submitted by plaintiffs before being forwarded to the conservators of both countries.Neville, 1998, pp. 77, 79
By the end of the fourteenth century, it has been argued, March law "had achieved the status of a system of law, complete with a hallowed and proven tradition, a body of written record, and a legitimate purpose" and "both complemented and supplemented the working of English common law".Neville, 1998, p. 96
March law in the 15th century However, the reigns of Henry IV of England and Henry V of England saw the revival of Edward I's claim over Scotland, and March law went into abeyance once more. In addition, the revolts of the Percys against the Crown, as well as feuds amongst the border Wardens, meant that border law was not championed, despite the pleas made by John of Lancaster, 1st Duke of Bedford to his father to reinstate the days of march. The borderers suffered much deprivation due to cross-border raiding and recourse to the common law failed to bring any restitution, even when the justices were present to hold the assizes.Neville, 1998, pp. 96–124
The reign of Henry VI of England saw a revival in March law as the regime sought to ally itself with Scotland. The truce of 1424 between the two countries resurrected the border tribunals. It sought to ban all reprisals; when these took place the offenders had to seek negotiation before the Wardens. Seeking redress for cross-border felonies would from now on be done in the Wardenial courts (as opposed to being dealt with at the tribunals set up at the days of march).Neville, 1998, p. 115–116