These formalities having been duly observed, the trial of the prisoners
was then proceeded with. Bills were presented on the one side, and on the
other, setting forth with considerable fulness of detail the nature and
extent of the damages that had been sustained. The prisoners against whom
these indictments had been made were then called to answer the charges
preferred against them.
There were at least three ways in which these cases could be tried. In the
first place, the bill might be acquitted _on the honour of the warden_.
But should it afterwards be found that the warden in acquitting the bill
had proceeded on imperfect information, and had acquitted upon his honour
a bill that was in reality "foul," then the complainant was at liberty to
prosecute a new bill, and demand that justice should be done. The case was
then tried by a jury who "fyled" or "cleared" the bill at their
discretion. When a bill was "fyled," that is to say declared true, the
word "foul" was written on the margin, and when it was "cleared," the word
"clear" was inserted.
But further, bills might be _tried by inquest or assize_, which was the
method most frequently adopted, such cases being decided by the juries on
their own knowledge, and on the evidence sworn to in open court.
The third way of dealing with bills was by a "_Vower_." The significance
of this method is fully explained by Sir Robert Bowes, who says:--"The
inquest or assise of Scotlande, notwithstanding their othe, would in no
wyse fynde a bill to be true, nor fyll any Scottis man upon an
Englishman's complaynte unles the Englishman could fynde an inhabitant of
Scotlande, that would avow openly to the inquest, or secretlye to the
warden, or some of the inquest, that the complaynte was treue, and the
partie complayned upon culpable thereof, otherwise althoughe the matter
was ever so notoryously knowne by the Englishman, their evydence would not
serve to secure a conviction."
It frequently happened, on the occasion of these meetings, that "bogus"
bills were presented, a custom which gave the officials a great deal of
unnecessary labour. The commissioners, in referring to this reprehensible
practice, remark that "it hath been perceived of late that, since the
order was begun by the Warden to speire, fyle, and deliver, upon their
Honour, that some ungodly Persons have made complaint, and billed for
Goods lost where none was taken from them, and so troubled the Wardens,
causing them to speire and search for the Thing that was never done."[41]
It was therefore statute and ordained that all persons guilty of this
offence should be delivered to the opposite warden to be punished,
imprisoned, and fined at the discretion of the same warden whom he had
troubled.
Public-domain text, read in full here on John Shaqi.
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