That all men

all the goods that he happens to take fhall be taken from him, and be escheat, and by the governor of the hoft or company fhall be difpofed among the fellowship as to him fhall seem speedful; and he shall be noted as a traytor for his deed, and punished for open treasons.

3. Item, It is ordained, that what time it is feen speedful that the hoft light fight on foot. down and array themfelves, that each man light down at commandment, and no man bide on horfe, but as many as are ordained by the chieftain; and whofo does not, to be punished in like manner as is before said: And if he happens to win any prifoner or goods, that bides on horfe without commandment; two parts shall be his majesty's, and the third part the chieftain's of the

hoft.

4. Item, That no man make obftacle or letting to them that are ordained to array the hoft; and that each man fhall anfwer and obey under the fame pain.

5. Item, It is ftatute and ordained, that if there happens any chase, either fleeing or following, whatever he be that takes his fellow's horfe, if he wins any goods on him, either prisoner or other goods; he that owed the horse shall have the half of it, and he fhall bring the horse again to the stake: and failing thereof, he shall be noted as a traytor and punished. And if it happens him to fly on that horse, as foon as he comes home, he shall pass to the market of the fhire, and proclaim him, and immediately deliver him to the sheriff or steward of the land: and if he does not this he shall be punished as a traytor.

6. Item, When it shall happen us to win any field, whoever he be that arrefts any prisoner, and then follows off the field, and he will fwear, when he comes home, that he did that for fafety of his prifoner's life; that condition fhall be of no avail: And whoever he be that flays his fellow's prisoner after he be arrested, shall pay his ranfom to his taker, if he be of power; and if he be not of power, he fhall die therefore.

Alfo it is found ftatute and ufe of Marche, that it is lawful to any man to take as many prifoners as he may, both on foot and horfe: fo that he lead them. with the strength of Scotfmen: And to take a token of his prifoner with him, that he may be fufficiently known; and to leave his token with his prisoner. And fo many as he takes in fuch like manner, to be his prifoners; and the determination thereof to be decided by the warden or his deputy, if there be any complaints.

7. Item, It is found, ftatute, and ordained, that any man being complainant of reif of his prifoner or his goods, fhall find a borgh (pledge) in the hands of the warden-ferjeant, upon the party that he is plaintiff of; which party shall be arrested to bring the prifoner or the goods to the next warden and the prifoner there to be challenged by his party, and both their

court;

7

witneffes

witneffes shall be heard and examined: And it fhall be at the will and difcretion of the judge and his fworn counsel, when both the parties are heard, to give his decree, who has reason to the prifoner or to the goods: And the party found in the wrong fhall pay 10/ to the judges.

And if it happens any man to complain in the field to the chieftain, that his prisoner is reft from him; as foon as he may be gotten, he fhall be delivered to the warden or lieutenant, to be put in even hands, that neither of the parties induce him to their will, that it may be determined and judged who has moft reason to him.

Cortention

8. Item, If it happens a prisoner to be taken, and divers perfons contend about him, he fhall be, at the command of the warden, delivered in even for a prifoner. hands, or else in the warden's hands, at the will of the parties which they had rather; and the warden fhall cause the prisoner to be brought to the warden court, and there the parties fhall challenge, and he that is found arrester shall challenge firft: And if he has any Scotsmen to witness that he took him prifoner, and first arrested him, the witneffes of the first arrester shall be of value, what Scotfmen that ever they be; the arrester and his witneffes being bodily fworn, that they fhall truth fay, without dread or favour of any perfon. And failing of this, the action of any other claimer fhall be put to the oath of the Englishman, he being bodily fworn, and in even hands, that he shall truth fay, without regard to profit or lofs to himself, and without fraud or favour of any other parties.

9. Item, It is ftatute and found use of Marche, whatever he be that takes Ranfoming any prifoner who may lead an hundred men; he fhall not be by him letten to officers. pledge, nor yet ranfomed for 15 days in time of war, unless he have leave of the warden.

10. Item, It is ftatute and found use of Marche, whatever he be that ftrikes Proportiondown a man off horseback in the chase, suppose he be yielded thereafter to ing of rananother man, or that strikes him down through jufting of war; he that strikes him down fhall have half his ranfom, fo that it be proved.

11. Item, It is ftatute and found use of Marche, that whatever he be that brings a traytor to the warden or his deputy, he fhall have for his reward an hundred fhillings: And he that puts him away fraudfully, fhall underlie the pain of death for his fo doing, like as the traytor fhould have done.

fom.

Takers or concealers of traytors.

12. Item, It is found ftatute and used in time of warfare, with refpect to Beacons to be bails burning and keeping, for coming of an English hoft into Scotland, there fuftained. fhall a bail be burned on Trailtrew-bill, and another on the Penchat-bill, and on the Bail-hill above the Hame-ends, one on the Cowdens above Castlemilk, one on Quitfoun, one on Dryfdail, and on the Burraw Skenton in Applegarth parish, one on the Browan-bill, and one on the Bleis in the tenement of Wampbray, one on the Kindol-knok in the tenement of Johnftoun, one on the Gallow-bill of Mofat

f 2

Pursuit on firing the bea

cons.

Prisoners not

out fafe conduct.

Moffat parish, and five in Nithifdale, one on the Wardlaw, one on the Rabochtoun, one on Barlock, one on the Pittarra hill, one on the Malow hill, one on Corfwinton, one on the Corfell, one on the fell above Dowlbark, and one on the Watchfell: And to cause these bails to be kept and made, the sheriff of Nithisdale, the stewart of Annandale, and the stewart of Kirkudbright in Galloway shall be debtors; and whofo keepeth not the bails, fhall pay for each default one mark *.

13. Whoever he be, an host of Englishmen coming in the country, the bails being burned, that follows not the hoft on horse or on foot, ever till the English men be paffed off Scotland, and that they have fufficient witnesses thereof; all their goods fhall be efcheat, and their bodies at the warden's will, unless they have lawful excufe for them.

14. Item, It is ordained, if there be any Englishman taken in Scotland, to pafs with- they thall have no freedom to pass in the country farther than the place of their entry, and the ftreight way from England to the place, on no man's conduct, except only our fovereign lord's, or the warden's proper felf; and that they fhall come on another conduct to the very day and place of their entry and payment: And if they happen to be without conduct, or any Scotsman with them in name of their taker, he shall be prifoner to any Scotfman that may get him.

Suffering prifoners to escape.

Parting of goods.

Deferting.

Rieving of prisoners or goods.

15. Item, That no Scotfman, after any host be ridden, or ready to ride in England, let his prifoner pass home, or that an hoft of English be come in Scotland and Scotfmen gathering against them; under the pain of treason.

16. Item, Whoever he be that comes to the hoft without bow and spear, and there be any parting of goods, two of them shall be to one bow part.

16. Ítem, Whoever he be, after that they come in the field, that flees from the lord his master and his fellows, and bides not to the uttermoft; all his goods fhall be efcheat, and his person punished as a traitor at the next warden court thereafter to be holden.

18. Item, whoever he be that rieves from any man his horfe, prifoner, or goods, after that they be known unto him; he fhall restore them again, and his perfon punished therefore as for open treason.

HERE end the laws and conftitutions made by the earl Douglas +.

In Cumberland, the places appointed for beacons were Blackcomb, Boothill, Mulcafter fell, St Bees head, Workington hill, Moothay, Skiddaw, Sandale top, Carlisle castle, Lingy close head, Beacon hill, Penrith, Dale Raughton, Brampton Mote, and Spade-Adam top. In Westmorland;, pon the top of Stanemore, Orton (car, Farleton knot, Whinfell fell, and Hardknot.

t Balfour's Practicks, p. 599.

CHAPTER

Of the fate of the Borders during the reign of king Henry the eighth.

IN this king's reign there was another commiffion of Border laws and regulations; the commiffioners were Thomas Audley knight high chancellor of England, Thomas Cromwell secretary of ftate, Edward Fox almoner, John Treymovell privy counsellor, and Richard Givente official principal of the metropolitical church of Canterbury, on the behalf of the king of England; and William bifhop of Aberdeen great treasurer of Scotland, and Adam Otterburne knight privy counsellor, on the behalf of the king of Scotl.nd t

Alfo in this king's reign, Sir Thomas Wharton (afterwards lord Wharton) became eminent and in high truft with the king as a moft active and vigilant warden of the Marches. He firft fignalized himself when deputy warden of the Weft Marches under the lord Scroop, in the memorable rencounter at Sollom Mofs, of which there is fcarce a parallel in hiftory. Being then governor of Carlisle, he (together with Sir William Mufgrave) with 300 horfemen [according to the common account, but from the fragments of a letter hereafter following they seem to have been 1400 horfe and foot] attacked an army of 15000 Scots, and with very little refiftance took prifoners almost every person of diftinction in the Scotch army, with 800 common foldiers, and all their baggage and artillery. The reafon was, the Scots being disgusted: that Oliver Sinclair the king's favourite and an upftart was made commander in chief, would not fight under him. Hiftorians fay, that the Scots fled, because they fuppofed Wharton's men to be the van of the duke of Norfolk's army coming against them. But most probably, Wharton had fome private intimation from the Scots of what they intended; otherwife his enterprise would not have been courage but madness. It broke the Scotch king's heart, and he died within a month, leaving his infant daughter Mary.

After the Scotch king's death, king Henry meditated a marriage between his fon prince Edward and the faid Mary; and in order to prepare the way to it, fent for the chief of the Scotch prifoners up to London. And there is yet extant a copy of a letter from Sir Thomas Wharton to the king, giving an account of the prifoners fent up by him, with the names of their takers; and an original letter from the king to the faid Sir Thomas Wharton about the ranfom of faid prifoners to be given to their takers; together with a copy of Sir Thomas Wharton's answer to the fame; which are as here follows:

COPY of a letter from Sir Thomas Wharton to the king's most excellent majesty, the tenth of December (1542).

Please your moft excellent majesty to be advertised, that your gracious and most noble letters of the date at your highness's honour of Hampton court the

Nicolfon's B. L. 62.

laft

last day of November, was delivered unto me at Newcastle the 4th of December, being repaired thither with divers noblemen and gentlemen Scottish prifoners, according to the right honourable my lord of Hertford's letters of commandment unto me fo to do: Humbly advertising your majefty, that the contents of your highness's faid gracious and moft noble letters fhewed by me and read in that part to the gentlemen your highnefs's fervants and humble fubjects there prefent, we all have received the fame in our hearts with most joy and comfort, for that our fortune by the favour of almighty God, to serve your majefty to your highnefs's molt noble contentation. In fuch wife we shall moft humbly pray with our hearts, that we may ferve your majelty to the continuance of the fame, which is all our worldly comfort to do to our lives end. It may also please your majefty to be advertifed, that herewith I do fend unto your highness the names of the noblemen and gentlemen prifoners, which I delivered at Darnton to my lord Scropp, and the names of their takers in the fame. I do fend alfo to your majesty the order of that fortunable fervice done by the power of almighty God to your highnels against your majesty's enemies, and the names of fuch gentlemen, and the numbers with them, in that your majesty's service; together with fuch communication in effect as I have had with the lord Maxwell and Oliver Synclere. I fhall attend your majesty's moit noble commandment for all the other prifoners, according to my most bounden duty. And yet there are divers good prifoners upon the Marches here, as I am informed. Your majefty hath not a little comforted us all to ferve, for that your highnefs's most noble goodness fignified for the ward of Robert Brysco, which fhall be employed to the widow and ward accordingly. I fhall attend to annoy and affail the enemy, with all vigilance, diligence, and circumfpection, according to your faid moft noble letters, and all other your highness's fervices, to the best I can or may unto my life's end, as I am most bounden; and fhall daily pray to almighty God, that your majefty may moft long in profperous health reign over us. At Carlile the 10th of December.

The names of the noblemen and gentlemen of Scotland, prifoners, to be fent unto the king's majesty from Sir Thomas Wharton knight, with the names of their takers, as followeth:

The earl of Caffill.

Batill Routlege his taker: John Mufgrave claimeth a part for the loan of his horfe to the faid Routlege.

It appears from Sir Thomas Carleton's memoirs, that this Robert Brifco was flain at Sollom Mofs, and the king here remits the profits of the wardship of his heir, for the benefit of his widow and the said heir; which widow the faid Sir Thomas Carleton afterwards married.