Court of Star Chamber:
Richard Fenwicke v Sir John Foster, Nicholas Foster - 37 Eliz
Transcript: Dave King
Bill of complaint:
Dated on reverse: Mercrr. xxmo [?Nove or?] Ao xxxvij mo Elizabeth [?....?] Willm Mill
To the Queens most excellent Ma[jes]tie
Humblye Compleyninge sheweth unto your most excellent Ma[jes]tie your true faithfulle and obedyent Sub[jec]t Richard Fenwicke of Stannton in youre Countye of Northumberland Esquire enhabitinge nere the uttermost borders of your Ma[jes]ties Realme of England toward Scotland, That whereas there is and ever hath bene tyme out of memorye of man to the Contrary .. Lawe Custome and agreements betweene your Ma[jes]tie and your noble p[ro]genitors of the one p[ar]te and the Kings of Scotland in all ages on thother p[ar]te for the better ordringe and doeinge of Right to the Bordrers of both Nations that yf any Scottishe Borderer did suffer his Cattle of what nature soever to depasture in and upon Englishe Soile, that for the first tyme or offence, for the redeeminge of his Cattle he shoulde paye one rate of fyne or Amercement And for the second tyme or offence he shoulde paye an other or greater rate of fyne or Amercement And for the third tyme or offence the said Cattle have bene alwayes ether all or the on halfe forfeyted to the taker of them, beinge a naturall borne Inglishe Sub[jec]t; as likewise yf the Cattle of any Scottishe man be kept in Englishe soyle by any sheppard or herdsman the same Cattle have bene alwayes forfeyted as aforsaide And yf such Scottishe man shall fynde himselfe agreeved w[i]th the takinge of his Cattle, his remedye is by your Lawe there and by the Custome of your saide Borders and agreements .......ly s... downe & usually observed that he shall exhibite Complaynt into the Court at the daye called the daye of truce; And the Englishe taker of such Cattle is to be summoned to that Courte by the Seriant, the Officer of that Courte; And if the Scottishe man can prove by the othe of an Englishe man (which they call fylinge) that his Cattle were not taken upon Englishe, but Scottishe soyle, the Scottishe man shall have his Cattle doble and safe that is to s..e three times as many or ...le consideracon and the like lawe is of the Contrarye p[ar]te in all things yf a Scottishe man take any Englishe man Cattle on any p[ar]te of the Borders beinge scottishe soile, Nowe so yt is and yt maye please your most excellent ma[jes]tie that one John Rotherforth of Hunthell in the Realme of Scotland a Scottishe man borne and bredd and one that about the murther of the late Sr Frannces Russell was, and while he lyveth wilbe verye odyouse to your ma[jes]ties people there, and a man that fostereth dyvers theeves and outlawes w[hi]ch by his Countenance and strength often robb, and spoile, your Ma[jes]ties Sub[jec]ts in your owen domynion in the saide Borders, As namelye have robbed and spoyled your saide su.... verye often and verye greatlye, did in lent last in the six and thirteth yeare of your most happie reigne not only suffer his Cattle many tymes to depasture in your na[jes]ties Soyle an offence against the lawe, Custome, and Agreements of the Borders of both Nations as aforsaide but then did w[i]th his Sheppards keepe levant and cowchant in a place called Downegaburne Saughes about seven myle w[i]thin your ma[jes]ties Realme of England, one thowsande sheepe called sheepe hoggs, and fiftye gotes, which Comeinge to the eares of your saide Subiecte, he w[i]th his Companye fetched them a waye and brought them into yo[u]r Countye of Yorke as Cattle forfeyted, as was for him lawefull to doe with an entent to Answere your Ma[jes]tie the one halfe of ye value of them if it were unto your ma[jes]tie due And if the saide John Rotherforthe would have made any clayme to them he should by the lawe Custome and Agreements aforsaide at a Courte at the daye of truce, have proved by the othe of an Englishe man that they were by your said Sub[jec]t taken w[i]thin Scottishe soile, but for that he the saide Rotherforth would not so doe, he practysed with Sr John Forster knight Lord Warden of the Middle Marches, w[i]th Nicholas Forster his reputed bastard sonne his deputye there, and by there or one of there meanes, a .... and Crye was raised of one hundred and fortye of your ma[jes]ties Tennants there upon your said subiecte and ev[er]ye of them was Inioyned by the saide Nicholas Forster or his servants upon payne of fortye shillings a man to take awaye the saide Cattle from yo[u]r saide Sub[jec]t w[hi]ch for that it was not effected, your said Sub[jec]t beinge to stronge for them, as in some splene or revenge of the takinge awaye of the said Rotherforthes Cattle the pasturinge whereof in your ma[jes]ties soile was by the said Lord Warden suffred for his owen benefitt that his cattle might fede quyetlye w[i]thout danger of any Scottishe Borderers or theeves .. or about the tenth daye of March last in the saide xxxvjth yeare of your ma[jes]ties saide reigne the said Sr John Forster Lord Warden and the saide Nicholas Forster his bastard Sonne w[i]th other p[er]sons to the number of thirtene parsons or more of his servants and followers, armed w[i]th Jackes steele Capps and gunns Ryotouslye, forceblie, and unlawfullye entred yo[u]r saide Sub[jec]ts dwellinge house at Stannton aforsaide; and there unlawfullye, Ryotouslye, and by stronge hand tooke him yo[u]r said Sub[jec]t thence and conveyed him to the said Lord Wardens house at Anwycke in Northumberland aforsaide and there restrayned him of his libertye untill he had entred bond w[i]th one Robert Lysle Esquire in the sume of fyve hundred pounds to the said Sr John Forster to Answere .. the saide Rotherforth to the Lawe for the takinge awaye of the saide Cattle, And after that not contented with the said bond and thinkinge that he had not satisfyed the maliciouse covetuouse [?humor?] of the said Rotherforth whom for the cause aforsaid he desyred to content did in or about the eight daye of Maye last for that the saide bond of your said Sub[jec]t and his Suertye to Answere to the Lawe was not of any avayle or satisfaction to the saide Rotherforth, for that the said Cattle were lawfullye taken and the takinge ... punishable and so the Cattle by the said lawe Custome and Agreements not recoverable the said Sr John Forster Lord Warden ..... respectinge his dutye to your Ma[jes]tie, or the .... of honor and trust he enioyeth, there under your Ma[jes]tie, or the p[re]servacon of such your subiects as there doe lyve under his government; tooke your said sub[jec]t (comeinge to speake w[i]th him about the said bond) and ymp[ri]soned him in his the said Sr John Forsters owen house by color of his Aucthoritye and kept him there till the tenthe daie of the same monnth of Maye and then against all lawe and justice of his owen wronge insultynge upon your said sub[jec]t w[i]thout cause he Comytted him as p[ri]soner .....he saide Nicholas his Bastarde sonne And he the said Nicholas did in safe Custodye like a felon convey yo[u]r said subiect to the Marchee or land Rodd (w[hi]ch is the ..... betweene the twoe Realmes) and then there as prysoner or .... delyvered him to the said John Rotherforth where yo[u]r said sub[jec]t was keptt till he was compelled to paye .... sume of three hundred and threescore pounds for the said Cattle which sume of three hundred and three score pounds is the treble value of them and yf he had not yealded so to doe w[i]thin a thirtene dayes, or ..reabout, they would have hanged him by the lawe of the said Borders, maye it therefore please your most excellent Ma[jes]tie in tender Consideracon of the premisses and for that all such Ryotts outrages and ...her misdemeanors are merely Contrarye to yo[u]r Ma[jes]ties Lawe and deserve very greevouse punishment and if they should escape Condigne punishement for there soe heynouse offences yt would encorage ..... to comytt ..................... your Ma[jes]ties most gratiouse writt of subpena to be dyrected to the said Sr John Forster and Nicholas Forster Commandinge .................................................................................. Certeyne peane p[er]sonallye to appeare before the Lords of yo[u]r Ma[jes]ties most honorable previe Counsell in your highnes Courte ................. Chamber then and th... ....re the p[re]misses and to abyde such further order as there L[ordships] good discretions shalbe thought meete and Co...... and your said Sub[jec]t shall praye for the longe and happie Contynuance of your most gratiouse Reigne over us/ (allfeilld)
Interrogatories to be ministred to Sir John Foster knight Lord warden of the middle marches of England for.... Scotland and Nicholas Foster gentleman defendants upon a bill exhibited against them to the Queenes most excellent ma[jes]tie in hir highe court of Starr chamber by Richard Fenwick esqier complt
First whether ys ther and tyme out of mynd of man haith bene a lawe custome or Ordinance betwene o[u]r sov[er]aigne laydye the Queenes most excellent ma[jes]tie that nowe ys and hir noble prognitors Kings and Queenes of England on thone p[ar]t and the Kings of Scotland during all the like time on thother p[ar]t for the better ministring and doing of Justice and right upon the borders and confynes of bothe the said Realmes, that the cattell of what nature soever of anie p[er]son or p[er]sons of thone Realme being kept and grased by shepheard or heardsman in the ground of the opposite Realme yf the same cattell be forfeted to the taker and seizer ..... being a natural borne subiect to the Realme wher they be so kept and hearded And yf the lawe custome or ordinance ther used be not such what ys the very lawe custome and order of the said borders w[hi]ch in that case of right haith ther bene used during all the said time to your best remembrance and knowledge/
2 And ys ther not also a lawe custome or ordinance w[hi]ch haith bene ther used during all the like time betwene the said princes and ther noble p[ro]genitors of both the said Realmes that yf anie p[er]son or p[er]sons do take or seize upon anie occasion anie goods or cattell of anie other of the opposite Realme that the p[ar]tie whose goods so ar taken for his remedy ther ys to make his compleint to the warden of that march wher the taker or offender dwelleth and yf upon compleint so made such taker or offender shall and ought to be somoned to the day of march then next to be holden before the wardens of the same marches/ and further also that yf one of the nation of him that so tooke or seized such goods (whome they call an avower) shall bere witnes against him of unlawfull taking of such cattell that he shall be therof convisted unlesse the Assise (w[hi]ch ys a certaine number of gentlemen of bothe Realmes chosen for that purpose) do upon ther othes requite him of the same/ And do youe knowe of anie other custome or order of proceding to conviction and iudgem[en]t in that and such like cases yes or no/
3 And whether ys not the custome ordinance and agrement ther alwayes used betwene both the said Realmes that yf anye p[er]son be convicted of taking the goods or cattell of anie other of the opposite Realme, and be deliv[er]ed by the warden of the march wher he dwelleth to the p[ar]tie to whome the t... or offence was comitted that he shall w[i]thin a certeine time pay double and sawfye for the thing so wrongfully taken, and yf he do not pay such double and sawfye w[i]thin the said time, that then yf he to whome the offender was deliv[er]ed may p[re]sently execute and hang such offender, and call for an other in his place that was p[re]sent at the same offence comitted and yf he also do not paye such double and sawfye w[i]thin such like time, that then yt ys in the lib[er]tie of the p[ar]tie to whome such offence was comitted to execute and hang him also/ And yf he may so deale w[i]th all other the offenders to him deliv[er]ed by the warden of the marches wher the offender dwelleth until he be satisfied of his double and sawfye touching the same goods and cattell yea or no/?
4 And whether be the said orders, lawes, and customes, or such like to the same effect, amongst others for and concerning the well ordering and goverm[en]t of the said marches, alledged, confirmed, concluded devised and agreed upon in divers chres extant betwene the comission[er]s of o[u]r said sov[er]aigne Laidies the Queenes most excellent ma[jes]tie & other hir highnes said noble p[ro]genitors and the comissioners of the kings of Scotland appointed ... ... for the good p... reformacon of disorder, and better maintenance of quietnes upon the said marches of bothe the said Realmes/ And yf that in the foresaid chres ther ys an uniformitie of p[ro]ceding therin alledged and comannded to be kept and observed by the wardens of the same for the time being according to the anncient lawes customes and ordinances of the same marches and not otherwise, And yf the same chres or some transcript or copyes therof nowe be in your custodye and keping or in the keping of anie other of your de...ie whereof and wherunto youe may have accesse and sight, yea or noe/
5 Also do youe knowe yf one John Rotherfourthe a scotsman borne inhabiting and dwelling at Hunthill w[i]thin the Realme of Scotland did about marche or april last in the xxxvjth yere of hir ma[jes]ties Reigne by his shephards and heardsmen kepe about seaven or eight miles w[i]thin the middle marches fornenst the said Realme of Scotland a thowsand sheepe & fyftie goats or therabout nere unto Harbotle castle in the Countye of Northumberland in a place called downgaborne sauoghes / and were not the said sheepe and goats kept and grased w[i]thin Inglishe ground in the same place at the time when the said Richard Fenwicke did take & seize the same as forfeted / and yf they were kept ther also grasing and depasturing by the space of a wholl yere before the said seizer and yf the same was done by your knowledge and tolleracon yea or no/?
6 It[em] did not youe or some other by your appoyntm[en]t and comandm[en]t being accompanied w[i]th the number of xiiij p[er]sons or ther abouts after the taking [of] the said sheepe & goats by the said Richard Fenwick in Riotous forcible and unlawfull maner baing armed w[i]th iackes steele caps and guns enter the ... ... ... said Richard Fenwicke at Stanton in the countye of Northumberland and ther w[i]th like force and riott by strong hand tooke him the said Richard Fenwicke & conveyed him to the house of youe the said Sir John Foster at Alnwick in the said countye and ther imp[ri]soned & restreyned him of his lib[er]tie contrarie to the custome and usage of the same borders untill youe forced and constreyned him w[i]th one Robt Lisle esquier to enter and become bound in the some of five hundred pounds unto the said Sir John Foster indorsed or underwritten w[i]th condicon to keepe youe the defendt harmelesse against ye said king and his warden of Scotland and also to answere the said Rotherfourth for his said sheepe and goats or upon such like condicon yea or noe/?
7 Also did not youe take and apprehend the said Richard Fenwick when as he came to speake w[i]th youe touching the said bond about the seaventh day of may last and him imp[ri]soned in your the said Sir John Fosters house at Alnwick aforesaid and ther did kepe him until about the tenth day of the same monthe & then contrarie to the lawes customes and ordinances of the said borders conveyed him by your self or others by your appointm[en]t in safe custodie like a felon to the said marches or bound [?redd?] and then and ther contrarie to all lawe Right equitye and conscience deliv[er]ed him to the said Rotherfourth into Scotland as a p[ri]soner ther to remaine untill he had payed double and sawfy to the said Rotherfourth for the said sheepe and goats soe by hym seized as aforesaid/
8 Also whether was the said Richard Fenwick at anie time before that his deliv[er]ie by youe as a p[ri]soner into Scotland somoned to appeare at anie day of march w[i]thin the same borders by anie officer therof at the compleint of the said Rotherfourth or was ther anie other lawfull p[ro]ceding used against the said Richard in the said cause before such deliv[er]ie of him made or any time after, but onelie that youe deliv[er]ed him of your owne wronge contrarye to the lawes and ordinances of the same marches, and that w[i]thout either profe convictie or order of lawe yea or no?/
9 It[em] do youe knowe yf the same John Rotherfourth was p[ro]clamed to be traytor to the king of Scotland nowe being, at the time of the taking of his said sheepe and goats by the said Richard Fenwicke, and yf he do not yet stand outlawed as well for highe treasons against the said kinge as for the death and murthering of Sir Francis Russell knight, and was he not then and yet standeth p[ro]clamed w[i]thin the wardenrye of the middle marches aforesaid as a traytor theife and murderer to the princes of both the Realmes for his manifold & sundrye treasons murders and thefts by hym comitted .. ..... yea or noe?
10 Also did not the said Rotherfourth recett and kepe in his house or upon his land and at this p[re]sent doth recett and kepe divers notorious theves and fugitives Englishmen and scotsmen who continuallye robb and spoyle hir ma[jes]ties subiectes w[i]thin the said Middle Marches, and hath not the said Rotherfoot and his confederate mates robbed and stolne frome the said Richard Fenwicke w[i]thin this thirtene yere last past of his goods and cattells to the value of CCC xl li and above as youe have hard or do well knowe of yea or noe/.
11 Also do youe knowe .. hir ma[jes]ties marches there fornest scotland extending and reaching two or three miles furder then the said place called dorongaborne sawghes inward into hir countye of Northumberland being a verye frutefull and fartile soyle in all that compas, be left desolate and uninhabited w[i]th any her ma[jes]ties subiects by reason of the continuall robberyes murders and outrages of the said Rotherfourth and other his confederates being theves fugitives & outlawes and by him mainteyned/ and dothe not the said Rotherfourth at this timeby his heardsme.. and sheephards kepe flocks of sheepe and goats in the said place wher Richard Fenwicke tooke the foresaid sheepe and goats to the number of twelve or thirtene hundred, or haith he not at some tyme synce kept more or fewer ther to your knowledge and by your sufferance/ And doth anye of hir ma[jes]ties subiects kepe any sheep or cattell w[i]thin the said compas? or do they reape any comodytye at all ther, but onely youe your self by keping divers flocks & hirsells of sheepe and cattle ... And yf he the said Rotherfourth haith and yet doth undertake to warrant youe the same yea or noe/.
12 Ite[m] did not youe authorisse licence and warrant the said Rotherfourth to feed and depasture his cattle in hir ma[jes]ties soyle nere about the said place called donngaborne sawghes, and hath he not kept the same ther since the taking of the said thowsand sheepe and fiftye goats aforesaid/ and did youe not licence and suffer the said 1000. sheepe and 50. goats w[hi]ch the said Richard Fenwick tooke as aforesaid ... to depasture ther also & p[re]sently upon the taking therof by the said Richard Fenwick did not youe, or others by your comandment rayse hue and crye after the said Richard Fenwick and him pursued w[i]th 140 men, and enioyned them ev[er]ie one upon payne of 40s to take away the same frome the said Richard Fenwick, knowing them to be ye sheepe & goats of the said Rotherfourthe yea or noe?
Depositions of Sir John Forster & Nicholas Forster:
The depositionns and Examinaconns of Sir John Forster knight Lord warden of the Middle Marches of England fore [?anempste?] Scotelande and Nich[olas] Forster defendts to Certaine interrogatries ministerd one the p[ar]te and behalfe of Richarde Fenwicke Complainant taken at Alnwick the xiijth daye of Januarie 1594
[?....?] John Forster knight of the age of fower score yeares or therupponn swornn saiethe to the firste Interrogatorie that there was a treatie and Indentur maide at Berwick upponn tweed upponn or aboute the fourth daye of december in the yeare of our lord god 1553 It was agreed and estabished that the inhabitants of bothe the Realmes should feed and pastur theire Cattell within the [?Cants?] and boundes of there owne Realmes upponn paine imputed to thoffenders therof wollingelie or accustomablie depasturing or feedinge his Cattell or sheepe within the bounders of thothers Realme by payement of one penny sterlinge for everie Cattell or nolte att the first fault and for everie sheepe one scotes pennye and by raitinge of thoffence to double the paim[ent] of the parrage or poundage for everie nolte, shoulde extende to two shillinges sterlinge and for everie sheepe six pence as more att lardge by the saide treatie and Indenture Dothe and maye appeare after whiche and one other treatie or meeting first att Carlisley w[i]thin the Realme of Englande and after att dumffraze in Scoteland by and betweenn the right honourable Henrye Lord Scroope of Bolton wardenn and keeper of the west Marches of Englande fore [?anempst?] Scowteland this defendt Sir John Forster knight thenn warden of the middle marches of England fore [?anempste?] Scotelande and Thomas Gargrave knight thenn vice president of the Queenns Maiesties Counsell established in the Northe p[ar]tes and John Rokebie Doctor of lawe, and of the said Counsell thenn Comissioners and especiall messengers of our most Soveraigne ladie the queenns most excellent ma[jes]tie that now is, and John Maxwell knight wardenn of the west Marches of Scoteland and John Ballander knight [?conn ffouers?] and speciall messengers of Marie then Queenn of Scotelande in the yeare of our lord god 1563 for the reformeing desorders of ther subiects of all the Marches and fronters, of the Realmes It was furthermore agreed and concluded that ane addiconn should be made and added to the former, that is to saye, that if it shall happenn the Cattell or sheepe of the one Realm to be [?stafe?] hirdede or to remayne depasturing upponn the grounde of thoppesit Realme, by the spacce of six howers in one daye that it should be lawfull to the owner of the grounde so depastured or the warden or deputie of that marche and to no other for to take and apprehende the saide Cattell and sheepe as for facte and loste to his own use w[i]thout any redresse to be made therfor and Further he cannot depose
Item to the seconde Interrogatorie he saiethe that if the Complanant had takenn Rotherfordes Cattell in the interrogatorie mencioned w[i]thin Scotishe soile thenn he should have ben by the lawe of the borders arreasted to the dayes of truce as in this interrogatorie is mencioned, but being taken in Englishe soyle as ane escheate thenn the said plt was to be delevered by the wardenn as he did and as was lawfulle for hime to doe
Item to the third interrogatorie he saiethe that if the Complt had taken the goodes fourthe of Scotelande thenn he was by the lawes of the borders to have ben delivered accordinge to this interrogatorie but being takenn as aforsaide he was to be delivered as is mencioned in the seconnde depossition and further he cannot depos[e]
Item to the fourthe interrogatore he saiethe that ther is divers orders treaties and agreaments made Betwenn the comissioners menioned in the firste depositionn for the princes of bothe the Realmes beareing dait the fourthe daye of december 1553 and another att Carlisle in England and Dumfreaz in Scotelande in the yeare of our lord god 1563 as more att lardg in the first depositionne is mencioned [?etc?]
Item to the fifte interrogatorie he saiethe that he knoweth Johnn Rotherford in the interrogatorie mencioned but that aboute Marche or aprill in the xxxvjth yeare of her Maiesties raigne in the interrogatorie mencioned the said Rotherford had not any shipherd or hardsmenn seavenn or eight miles w[i]thin the middle Marches of Englande keepinge anye sheepe or goats to his knowledg or that he did tollerate or had any knowledge of ther being there he likewise denyethe
Item to the sixt interrogatorie he saiethe that upponn that heynouse attemptat comitted by the said Complt whiche was likelie to have broken the peace and amytie of the borders and upponn complaint maide by the Wardenn of Scotelande and the said Rotherforde I directed divers l[etters] commandinge him to appeare personallie before me to answeer the saide attemptat whiche he did [?s..?] wherupponn I sent my deputie wardenn Nicholas Forster accompanied w[i]th divers of my houshold servannts to apprehend and bringe the said Complt before me, and att his coming to me tooke bounde of him with Robte Lisley esquier to dischardge the Queenn and me being wardenn as was lawfull for me to doe
Item to the seaventhe interrogatorie he saiethe that he keepte the saide complt in his house from the vijth daye of Maye untill the xth ....... the saide monethe as in the said interrogatorie is mencioned and thenn delivered hime upponn the swearing of the bill to the said Rotherford to paye the .............. accordinge to the comissioners booke that was thre shillinges for [?a yere?] hogg as lawfull was for hime to doe
Item to the eight interrogatorie he saiethe that it was no stelthe committed in Scotelande and that it [?needde?] no ..... nor arreasting to the day...... of trewes for that is was ane attemptat comitted within the Realme of England as ane escheett theerefor he delivered hime for the keeping of the p..... and anytie of the borders as lawfull was for hime to doe
Item to the ixth interrogatorie he saiethe that he knowethe not wheather the saide Rotherford be proclamed trator to the king of scotes, neather d..... thopposit wardenn stade any proclamaconn to proclaime the said Rotherforde a trator w[i]thin the middle Marches a fore saide and as for the deethe and murtheringe of Sir Franncis Russell knight I never hard nor knewe that the said Rotherford was any waye guylte therof but hathe hard that one Roberte .... committed the acte as hathe harde reported
Item to the tenthe interrogatorie he saiethe that he dothe not knowe that the said Rotherford keepethe any theaves or fugitives in his house or upponn his lande to his knowledge, and Further saiethe that aboute eight yeares agoe or therabouts ther was a commissionn held att Berwick wher all persons that founde them selves agreved put in ther bills, amongest whiche the complt put in his bill, but not [?prosecute?] the same Notw[i]thstandinge I gott it filed, and delivered for hime and wheather the said Rotherford have takenn from hime to the valew of three hundred and fortie poundes as in the interrogatorie is mencioned he knowethe not
Item to the Eleaventhe interrogatorie he saiethe that the soile menconed in the said interrogatorie is waste ground and never to his remembrance hathe ben inhabited but onelie in the sommer tyme for sommering of Cattell by Englishemen or if any sheepe or goats be keept by the said Rotherford ther sence the tyme that the complt took the saide Rotherfordes sheepe or goats he knowethe not. And for my self I doe not keepe or have depasturing .... goodes but onelie upponn that whiche is my own lande, Nether did I ever[?seek?] the said Rotherford to warrant any goodes of myne as in this interrogatorie is menconed
Item to the xijth interrogatorie he sayethe that he did never aucthorise lycence or geve warrant to the said Rotherford to feed and depastu[re] any cattell in any her maiesties soyle or aboute the place called danggoe bornn sawghes never did gev licenc to the said Rotherforde for the thowsand sheepe ... and fiftie goates whiche weer takenn by the said complt to depasture as in the interrogatorie is menconed Nether did I or any by my commandment ..... hewe and crie upponn paine of fortie shillinges to pursewe the said complanant after the takeing of the sheepe aforesaid
Nicholas Forster to the firste seconnde thirde, fourthe, and fifte interrogatories he saiethe in all thinges in effecte as the said Sir Johnn Forster hathe before deposed
Item to the sixt interrogatorie he saiethe that he by the commandment of his Father being wardenn did withe diverse of his Fathers housho[l]d servannts apprehend the said complt and brought hime to Alnwicke to the said wardenn to dischardge the queenn and wardenn as lawfull was for hime to do
Item to the vijth interrogatorie he saiethe that the complt was keept in his Fathers house att Alnwicke from the vijth of maye aforesaid untill the tenthe of the same and thenn he as deputie and by the speciall commandment and appointment of the said lord wardenn his Father delivered the said complt to the said Rotherford to paye the principall as the saide Sir John Forster before deposed
Item to the eight nynthe tenthe eleaventh and twethe interrogatories he deposethe and saiethe to all thinges in effect as the said Sir John Forster his Father before hathe saide
John Forster Nichas Forster
Answers of Sir John Forster & Nicholas Forster:
The Joynte and sev[er]all Answeres of Sir John Foster and Nycholas Foster defts to the bill of complt of Richarde Fenwicke Complaynant
The said defts savinge to them and to ether of them all advantage of exception to the Insuffeciancie and Incertayntie of the said Bill For full trewe and Just Answere to the same and to the materiall Cont.. thereof doe saie as hereafter followeth And First the said Sir John Foster knight For Answere to soe muche of the materiall contents of the said Bill as Concernith him he sayeth that for p[re]servacon of the peace and publique good of the borders or Fronters of the Royalmes of England and Scotland by the Comissioners of Booth the Royalmes .. one treatie and Indenture maid att Barwicke upon Twede uppon or abowte the fowerth daie of december in the Yeare of o[u]r Lord god one thowsande fyve hundreth fyftie three ytt was aggreed and establyshed that the Inhabitants of booth the Royalmes shouild Feede and pasture there cattle w[i]thin the lymitts and bounds of there owne Royalmes uppon paine I...ted to the offenders thereof willingly or accustomablye depasturinge or Fedinge his Cattell or sheepe w[i]thin the bounders of thoother Royalme of payment of one penney sterlinge For everrie cattell or neate att the First Falte and for everrie shepe one Scotts penney and by Iteratinge of the offence to dowble the paine of the [?p[er]raige?] or poundaige untill suche tyme as the poundaige for everrie neate should extend to towe shilings starlinge and for everrie Sheepe six pence as more att learge by the said treatice and Indenture dooth and maie appeare After w[hi]ch att one other treatie or metinge First att Carlell w[i]thin the Royalme of England and after att dumfreize in Scotland by and betwene the Right honorable Henrie L[ord] Scrope of Bolton Warden and keper of the west merches of England against Scotland this deft Sir John Fosterknighte then warden of the middle marshes of England against Scotland Thomas Gargrave knight then vice p[re]sident of the Q[ueen]es ma[jes]ties Counsell estableshed in the north p[ar]ts And John Rookebie doctor of lawe and of the said Counsell then Comissioners and Speciall messengers of o[u]r most sov[er]eigne Ladie the Quenes most excelent Ma[jes]tie [tha]t now ys and John Maxwell knight warden of the west merches of Scotland And John Ballander knight Comissioners and speciall messengers of Marie then Quene of Scotland in the yeare of o[u]r lord one thowsand fyve hundreth sixtie three For Reformynge disorders of there subiects of all the merches and Fronters of both the Ryoalmes yt was Furthermore aggreed and concluded that an addicon should bee maid and added unto the former that ys to saie that yf ytt shall happen the Cattell or sheipe of the one Ryolme to bee staffherded or to remaine depasturinge uppon ye ground of the apposite Royalme by ye space of six howers in one daie that yt should bee lawfull to the owner of the ground soe depastured or to the warden or deputie of [tha]t merche for to taike and app[re]hende the said cattell and sheepe as forfett and loste to his owne use w[i]thoute any redres to bee maid .. for And for Avoydinge all contrav[er]sie yt was aggreed and thought convenient [tha]t ye lorde or owner of the ground soe depastured or the warden when any of them would p[ro]ceed to the app[re]hendinge and exchetinge of any goods soe depasturinge [tha]t they should taike w[i]th him of his owne countrie fowere honest & credable p[er]sons unsuspected to bee p[re]sent w[i]th him to see that the execucon were dewlye maid all frawde and male eng..e removed and sett a p[ar]te and for Cattell or sheepe remaininge by shorter space then ye afforesaid six howers [that]t was aggreed and thought meete that the afforesaid order establesshed att Barwicke should bee used & observed w[i]th this addison alsoe [tha]t in case the kepers of the Cattell soe depasturinge the ground of ye apposite Royalme or any other for or w[i]th them would not p[er]mit the owner of the ground or warden to use the order of puriage and poundaige estableshed in the said Indenture butt would maike lett troble or Impediment against the poundinge or kepinge of ye Cattell untill theye were redemed by payeinge of the lawfull poundaige in [tha]t case the Cattell and Sheepe should bee by reason [ther]of lawfully forfeyted ..nd .... use of the owner of ye ground or warden for ye contempt & resistance maid against ye order of Justice and for ye [?p[ri]ce?] of the app[re]hension or poundinge and for ye number or quantitie of the goods app[re]hended & pounded & for ye tyme & [?remaininge?] of the Cattle uppon the ground [tha]t was thought meete and ordred [tha]t the same should bee reserved & tryed by ye oathe of the warden or his deputie or by ye app[re]hendor [ther]of togeather w[i]th six honest men of ye Realme to bee declared uppon there faithes and honers & those six to bee named by the apposit warden And this deft further sayeth that aboute lent last past he this deft then & yett beinge warden of ye said middle merches of England Against Scotland was Informed that the Complt togeather w[i]th dyvers lewde and evyll disposed p[er]sons in his companye hadd taken and dryven awaie certeyne Sheepe of the said Rotherfoorthes to ye number of one thowsand or thereabouts contrarie to the effecte of the former ordinances and Treaties afforesaid And uppon notice [ther]of gyven to this deft by the L[ord] warden of Scotland whoe prayed Restitucon This deft becawse there had not bene by a longe tyme before any daie of truce kept on those merches nor was .... .... becawse the Scoots Borderers were not in dewe obedience to the kinge of Scootts this deft fearinge [tha]t ye said Complt and his associates dealinge might gyve occacon to the Scoots to breake the peace of boothe Royalmes and to comitt some notable outeraige did att dyvers tymes wryte his l[etter]s to ye Complt to repaire to him Aboute ye p[re]misses butt he utterly contempned soe to dooe whereuppon this deft did comand thoother deft Nycholas Foster his deputie warden to app[re]hend him and bringe him before this deft w[hi]ch beinge by ye said Nycholas donn he this deft did heare & examyn the Cawse and uppon his examinacon Fyndinge [tha]t the Complt hadd broken the former said orders and owght to maike Restitucon this deft did taike the Complt and the said Robte Lysley bonnd that the Complt ... Answere the said Rootherfoorth the lawe for takinge awaie the said Sheepe or to lyke effecte as this deft nowe remembreth And this deft did further Chardge the Complt [tha]t he should not sell or putt awaie ye said Sheepe And thereuppon this deft suffred him to deperte .....orth after his departure ye said Complt did secretly convey ye same Sheepe into Yorkeshire and there sowld them or ye most p[ar]te of them and after did goo to London w[i]th w[hi]ch doinge ye said Rotherfoorth and other scottes fownd them soe ..... as this deft was credeblye Informed did determyn ... taike some revenge in ye Englishe borders and to breake the peace for pacefyinge whereof this deft became bound ether to delyv[er] ye p[ar]tie or paie three shillings for everrie sheepe hogg whereby the peace of booth the Royalmes was for the tyme p[re]served after w[hi]ch the Complt Reparinge to this deft this deft did app[re]hend him and sent him in safe Custodie by the said Nycholas thoother deft to bee delyv[er]ed to the said Rootherfoorth accordinge to the Custome and ordre of the boprders and as in such ................................ w[hi]ch was donn accordingly after w[hi]ch this deft did lend to the Complt fowere score pounds to paie p[ar]te of the moonney aggreed to bee paid for the said Sheepe And this deft sayeth that the Complt did paie for everrie sheepe hoogg by him soe taken three shillings accordinge to the Raite sett downe by aggreement of the Comissioners of Booth Royalmes for suche lyke sheepe whereas the Complt sowld them for fowere shillings a peece and more as this deft verely hopeth to p[ro]ve and soe was by the same his wrongfull & disorderly dealinge A great gaines to the p[er]ill of the Breache of the peace Amytie and good aggrement of the Royalmes yf this deft had not donn his best endevor w[i]th p[er]ill to answere the said Rootherfoorth of his owne goodes and the Complt did not paie the treble valewe as in some cases uppon the broders ys used to pacefie the same And this deft will averr and p[ro]ve [tha]t .... usaige of the borders yt haith bene and ys used [that]t yf any Englishe men doe wrongfully taike any Scoots mans goods [that]t [tha]t offender beinge app[re]hended owght to bee delyv[er]ed to the p[ar]tie offended yf there bee no Fewde or bloode betwene them And yf there bee any suche fewde then to the warden And the said Nycholas Foster thoother of these defts for him selfe sayeth [tha]t the said Sir John Foster haith before said and [tha]t he as deputie warden to the said Sir John Foster and by his comandeme[n]t did repaire to the dwellinge howse of the said Complt whoe had before refused or contempned to appeare before the said Lord Warden and there in quiet manner app[re]hended him ye Complt and brought him to the said L[ord] warden And this deft alsoe by the lyke Aucthoritie and comendeme[n]t did Receive the Complt as a presoner and delyv[er]ed him to the said Rotherfoorts accordinge to the Custome of the borders w[hi]ch ...... he will averr and p[ro]ve yt by ye usaige & Custome of ye borders [tha]t ... Lawfull for ye warden or deputie warden to enter into any suche offenders howse w[i]thin ye said wardenrie [tha]t doe Refuse or Contemne to obey his aucthoritie and to app[re]hend and bringe him before the warden to answere suche cawses as are obiected against him w[i]thout that yt by ..................................... bene tyme oute of memorie of man to the Contrarie a lawe Custome & aggrement betwene her Ma[jes]tie and her noble p[ro]genitors of thone p[ar]tie and the Kings of Scotland in all ages on thoother p[ar]tie for ye better orderinge and doeinge of right to the borderers of booth nacons [tha]t yf any Scottice borderer did ....... cattle of what nature soever to depasture in and uppon Englishe Soyle that for the first tyme or offence for ye Redemynge of his Cattle he should paie one raite or fyne or Am[er]ciement and for the second tyme or offence he should paie an other or greater raite of fyne or Am[er]ciement and for ye third tyme or offence ye said Cattle have bene alwaies ether all or ye one halfe forfeited to the taker of them beinge a naturall borne Englishe subiecte and [tha]t lykewise yf ye Cattle of any Scotishe man be kepte in Englishe soyle .. any shepard or horseman ye same Cattle have bene alwaies forfeited as aforesaid as in the said bill ys alledged Or [tha]t by the lyke lawe Custome & aggrement yt ys and haith bene by ye tyme afforesaid used [tha]t yf suche Scottishe man shall fynd himselfe agreved w[i]th the takinge of his Cattle his remydie .. by her Ma[jes]ties lawe there and by the Custome of her said borders ...... annciently sett downe & usuallye observed [tha]t he shall exhibit Complt into the Courte att the daie called the daie of treuce and ye Englishe taker of suche Cattle ys to bee somoned to [tha]t Court by the .... the officer of ye Courte and yf the Scotishe man can p[ro]ve by the othe of ann Englishe man [tha]t his Cattle were not taken upon Englishe butt Scottishe soyle the Scotishe man shall have his Cattle double and safe that ys to saie three tymes as manye or tryble Consideracon as in the said bill is alledged Or [tha]t the lyke lawe ys on the Contrarie p[ar]tie in all things yf A Scottishe man taike any Englishe mans Cattle on any p[ar]tie of the borders beinge Scottishe soyle as in the said bill ys suggested & surmised Or [tha]t ye said John Rootherfoorth in the bill named ys one [tha]t aboute the murther of the layte Sir Franncis Russell in ye bill named was whyle he lyveth wilbee verie odious to her Ma[jesties] people there and a man that suffereth theves and owtelawes that by his Con........ and strenth often robbe and spoyle her Ma[jesties] subiects in her owne domynion in the said borders in the said bill ys surmised & suggested to this defts knowledge Or [tha]t he did in lente last in ye six and thirtie yeare of her ma[jesties] Reigne not onely suffer hes cattle mannye tymes to depasture in her ma[jesties] soyle butt then did w[i]th his Sheppeards kepe levant and cowchante in a place called downegaburne Saughes seaven myles w[i]thin her ma[jesties] Royalme of England one thowsand Sheepe as in the said bill ys suggested and ....ed Or [tha]t that the said Complt w[i]th his companye lawfully fetched them awaie and brought them .... her ma[jesties] countie of Yorks as cattle forfeyted w[i]th an intent to ..... her ma[jes]tie the one halfe of the valewe of them yf ytt were unto her ma[jes]tie dewe and [tha]t yf the said John Rotherforth would have maid any clame to them he should by ye lawe custome .... .... afforesaid att a Courte att the daie of Treuce have .... by the othe of an Englishe man [tha]t theye were by the said Complt taken w[i]thin Scotishe Soyle as in the said bill ys surmised and alledged Or [tha]t for that the said Rotherfoorth Could not soe dooe he practysed w[i]th thes defts and [tha]t by there or one of there meanes hewghe and Crye was raysed of one hundreth and fortie of her ma[jesties] tenants there uppon the said Complt and [tha]t everrie of them was enioy[n]ed by the said Nycholas Foster one of thes defts or his servants uppon paine of Fortie shillings a man to tacke awaie the said Cattle Frome the said Complt as in the said bill ys verye Falseile alledged Or [tha]t for [tha]t yt was not effected the said Complt beinge to stronge for them as in some splen or revenge of the takinge awaie of the said Rotherforthes Cattle the parturinge whereof in her ma[jesties] soyle was by the said L[ord] warden suffered for his owne benifitt [tha]t his owne Cattle might feede quietly w[i]thoute danger of any Scottishe Borderers or theves in or abouite ....th daie of merche last in the said six and thirtie yeare of her ma[jesties] said Reigne These defts w[i]th other p[er]sons to the number of thirteyne p[er]sons or more of his or there servants or fellowes armed w[i]th Jacks Steele capps and gonnes ryotously forceably and unlawfully entered the said Complts dwellinge howse and there unlawfully ryotously and by strong hand touke him the said Complt thence and conveyed him to the said Lo[rd] wardens howse and restreaned him of his libertie untill he had entered bond w[i]th the said Robte Lysley in the bill named in the some of fyve hundreth pounds to the said Sir John Foster to Answere the said Rotherforth to the lawe for the takinge awaie of the said Cattle as in the said bill ys suggested surmised and alledged otherwise then as in effecte in this Answere ys be..re Confessed or sett downe Or [tha]t after [tha]t not contented w[i]th ye said bonnd and thinkinge that he hadd not satisfied the said Rotherfoorth For any suche cawse as in the bill ys menconed did in or about the eight daie of maie last for [tha]t ye said bonnd of the said Complt and his said suertie to Answere to ye lawe was not of any avale or satisfaccon to the said Rotherfoorth for [tha]t ye said Cattle was lawfully taken and [tha]t takinge dispunyshable and soe the Cattle by ye said lawe not recov[er]able the said Sir John Foster Lo[rd] warden one of thes defts w[i]thoute respectinge his dewtie to her ma[jes]tie or ye place of honor and trust he enioyeth there under her ma[jes]tie or the p[re]servacon of suche her subiects as there doo lyve under his gov[er]nment tooke the said Complt comynge to speake w[i]th him aboute the said bonnd And wrongfully Imprison[ed] him in his the said Sir John Fosters one of the defts owne howse by culor of his Awctoritie and kept him there untill the tenth daie of the same moneth [tha]t against all lawe and Justice of his owne wronge Insultinge uppon the said Complt w[i]thoute cawse he comitted him as p[ri]soner to the said Nycholas Foster thother of the said defts otherwise then ys before confessed Or [tha]t he the said Nycholas Foster did in safe custodie lyke a Fellon convey him the said Complt to ye merches or bond Roode And then [?and?] there as a p[ri]soner of Fellon delyv[er]ed him to the said John Rotherfoorth where the Complt was kepte untill he was compelled to paie the some of three hundreth and threscoore pownds for ye said Cattle w[hi]ch was the trible valewe of them as in the said bill ys suggested and alledged Or [tha]t yf he hadd not yeilded soe to doo w[i]thin th..teyne daies or thereabouts they would have charged him by [?ye?] lawe of the said borders as in the said bill ys p[re]tended and alledged .... .... any other matter or thinge in the said bill conteyned materiall or effectuall in the lawe to bee Answered unto and hereunto not suffeci..... Answered unnto confessed and avoyded trav[er]sed or denyed ys .... all w[hi]ch matters thes defts arr and wilbe readie to aver and p[ro]ve as .... .... ..able Courte shall Award and humbly praye to be dismissed w[i]th there reasonable Coosts and Chardges in this behalfe and wrongfully Susteyned/
Sabb... 17 Maij Anno 37 Elizabeth Regine Willm Mill
Replication of Richard Fenwick:
The Replicacon of Richard Fenwick Esquier Complt To the Annswers of Sir John Foster knight and Henry (sic) Foster gent defendanntes
The said Complaynante not confessing any mat[er]iall matters or thinge in the saide Annswers of the defendannts or either of them conteyned to be trewe and sufficient in the Lawe to be Replied unto, And savinge unto him self all advantages of Excepcon to the uncertentie and insufficiency thereof, For Replicacon saieth in all and anye thinge and thinges as before in his saide bill of Complainte he hath sayed, and doth and will averre mentaine and prove all and ev[er]y the matters and thinges in the said bill of Complaint conteyned to be iust and trewe in suche maner and forme as in and by the saide Bill of Complainte they are and be very truly sett forth and declared And without that that any matter Article or thinge in the saide Annswers of the said defendannts or ether of them materiall or affectuall to be replied unto And herein by thes Complt not sufficiently avoyded traversed or denied ys trewe. All w[hi]ch matters this Complt will averr mentaine and prove as this most ho[norable] Co[ur]t shall awarde and prayeth as in and by his said bill of Complt he hath prayed./