torn Who violate the Sacred Trust to which they 're born But blest be Thou and all who dare like Thee Bravely assert their Countries Liberty Our well-built Freedom thou dost make t o'appear And its Foundation from Time's Rubbish clear The Norman swore to Laws by which we 're free Laws were more his than our Security Him King the People's joint Consent alone Did make which by that Sacred Oath he won Or that same joint Consent had made him none We were no Norman Slaves nor French could be Had we enough True Englishmen like Thee But now my Muse before you end take care Humbly to close up all with Heav'n in Prayer Prayer for that King who doth Great Britain Rule Who of this Isle is th' Vniversal Soul In whom so many glorious Vertues shine As make him seem to be of Race Divine May Heav'n continually His Guardian prove And keep Him safe in all His Subjects Love Long may unruffled Peace adorn His Crown May all the Laws in their smooth Channel run And flowing Justice still support His Throne Thus blest and thus united here at Home What cannot Britain's Monarch overcome Oh may Great Edward's and Fifth Henry's Soul By Heav'nly Pow'r be transfus'd to him whole May He ride Mighty Admiral of the Seas Scourging His stubborn Enemies into Peace His Envying Neighbours all their Powers disown Strike to His Flag and tremble at His Frown And th' humbled World be glad to pay him fear And awful veneration every where That this may be May the Illustrious Senate of the Land With their Wise Councils ever by him stand He pleas'd in them and they resolv'd to show What th' utmost stretch of Loyalty can do Then will his Glories shine in brightest state At th' Head of such a joint Triumvirate Then King and People doubly will be blest And Europe then enjoy a lasting Rest For this let all our Vows to Heav'en be sent To see Great Charles happy in 's Parliament Argumentum Anti-Normannicum SIR YOu were pleased some time since in my happiness of a short but free conversation with you to tell me You had a mind to read how far I could give you satisfaction in a few Points you had raised to your self concerning the Norman Conquest and that within a little while I should have a Paper from you wherein they should be contained You were not long Sir in justly acquitting your self of your promise to me I did receive the Furniture of these ensuing Arguments by the four Questions you sent me and hope there is nothing to be found in them but unbyassed and venerable Truth which surely none will be offended to hear I have endeavoured to pay all possible Respect to You and to Justice and as far as my Abilities could reach in so small a Treatise have impartially offered my Thoughts upon them and now beg your candour in judging me Your Questions Sir are these The First Question I. Whether William Duke of Normandy who was afterwards William the First got the Imperial Crown of England by the Sword and made an absolute Conquest of the Nation at his first Entrance The Second Question II. Whether this first William did abolish all the English Laws and changed the whole Frame and Constitution of the Government The Third Question III. Whether it be true That the English had neither Estates nor Fortunes left but all was divided between the King and his Normans The Fourth Question IV. Whether it be not a grand Error to affirm That there were no English Men in the Common Council of the whole Kingdom I shall take them Sir in the order you have sent them to me and so first begin with your first Question The First Question Whether William Duke of Normandy who was afterwards William the First got the Imperial Crown of England by the Sword and made an * For England thus much I dare speak and under the rule of Modesty protest That sithence the Vniversal Conquest of William who first commanded and imposed Tribute upon this Land for Conquerors may command Tribute and Subsidie have been as justly both by the Law of God and the Law of Nations paid in England as in Jewry yea and justly continued as a remembrance of a Conquest Dr. Fulbec Pandects of the Law of Nations c. 10. p. 69. One Blackwood wrote a Book which concluded That we are all Slaves by reason of the Conquest Vid. Mr. Petyt Misc Parl. p. 66. And this Position is maintained by an Anonimus Author in his full and clear Answer to Mr. Petyt's Ancient Right of the Commons of England asserted Pag. 35. in the Margin Absolute Conquest of the Nation at his first entrance AS you have stated the Question Sir and desire to know what is my Opinion of it with submission to others better informed and who are more able to maintain the Truth of those Principles I proceed upon than my self I shall return you this modest Answer as my Sence and Judgment in the Point viz. That I cannot conclude in the Affirmative for these several constraining Reasons 1. That William laid a far greater stress upon his Claim and Titles to this Kingdom than ever he did upon his great and mighty Conquest will be very plain and evident if you please but to consider with me these following Particulars 1. In that before his Conquest when the People had chosen Harold the Son of Earl Godwin for their King after the Death of Edward the Confessor and had put aside Edgar Atheling by right of Blood and Inheritance entitled to the Crown This Norman Duke made his loud Complaints of the Injuries done him in not electing him for he was * Edward the Confessor was Son to Egelred K. of England by Emma Sister to Rich. 2. Duke of Normandy who was Grandfather to Duke William so that K Edward and Duke William were Cosen Germans once removed as this farther shews you Richard 1. Richard 2. Robert. William Emma Edward Cosen German to the Confessor who died †Edward married Edith the Daughter of E. Godwin but whether upon a vow of Chastity or upon impotency of Nature or upon any hatred to her Father or suspicion against her self for all these Causes are alledged by several Writers of those Times he forbore all private Familiarities with her without Issue and therefore pretended that the Right truly devolved upon him But it seems as ill luck would have it this Duke they knew to be a Bastard and neither the Saxon Law nor the Norman Custom could help him in such a Case and so that Title did him but little good Well what therefore was to be his next Work Why 2. Truly his Pretence was then Mat. Paris 1. Antiq Brit. Eccles 96. That the Confessor had designed him for his Successor and by his last Will had bequeathed this Kingdom to him And this was confirmed by the consent of the Nobility and principally of Harold himself and hereupon considering how Harold had
A Seasonable Treatise Wherein is proved That KING WILLIAM commonly call'd The CONQUEROR Did not get the Imperial Crown of England by the Sword but by the Election and Consent of the People To whom he swore to observe the Original Contract between King and People The Norman swore to Laws by which we 're free Laws here more His than Our Security LONDON Printed for J. Robinson at the Golden Lion in St. Paul's Church-yard 1689. An Explanation of the Frontispiece warranted by the Authorities cited in the following Argument NO sooner had the * King Harold victorious over the K. of Denmark Tosta Harold ' s Brother at York Valiant HAROLD conquered the Danish King and his own Brother the daring TOSTA but news was brought him †William D. of Normandy at the same time lands in Sussex That the NORMAN Duke was arrived at Pemsey in Sussex whereupon with haste he went to meet him and at * Harold meets him at Hastings where they fight Hastings gave the NORMAN battel which proved fatal to him For he was as you may see * Haroid slain slain between the NORMAN Long-Bows and ENGLISH Spears leaving the Duke VICTOR in the Field WILLIAM proud with this Success The D. comes up to London marches with all speed up to Berkhamstead near LONDON The Rest of the ENGLISH if they had look'd upon his coming as a Design to conquer the Nation and not to assert his pretended legal Title against HAROLD were then able to have driven him back to his own Country or at least found him a Tumulary in this for there was not a fifth part of the Strength of the Nation that felt the Force of his Arms Enters into Compact with the English to make him King. but Duke WILLIAM and the ENGLISH soon came to an Agreement and the latter entred into solemn Compact to make him King. Thereupon BRITANNIA Britan. gives him the Scepter holds forth to him the Scepter with one Hand And With the other shews him the excellent And St. Edward ' s Laws to keep and most famous Laws of St. EDWARD As also at the same Time a Noble A Bishop tenders the Coronation Oath Prelat tenders him the Coronation-Oath The ENGLISH first being asked by the Bishop If they would assent to have the Duke their KING and if he should then be crowned To which they all with an unanimous consent answered Yea Yea The Oath VVilliam took at his Coronation Whereupon he takes the Coronation-Oath the sence of which take as follows This Scepter Fairest Queen I most Sacramentum Willielmi Senioris Ante Altare S. Petri Apostoli coram Clero Populo jurejurando Promisit se velle Sanctas Dei Ecclesias ac Rectores earum defendere necnon cunctum Populum sibi subjectum juste ac Regali providentia regere rectam Legem Statuere tenere rapinas injustaque judicia penitùs interdicere Hoveden pars Prior. fol. 258. l. 14. Exacto prius coram omni Populo jurejurando quod se modesse erga subjectos ageret aequo Jure Anglos quo Francos tractaret Malmsb. lib. 3. fol. 154. b. l. 8. Rex pro bono pacis juravit super omnes Reliquias Ecclesiae Sancti Albani Tactisque Sacro sanctis Evangeliis bonas approbatas Antiquas Regni Leges quas Sancti ac pii Angliae Reges ejus Antecessores Maxime Rex Edwardus Statuit inviolabiliter observare Mat. Paris Vitae Viginti trium Sancti Albani Abbatuum fol. 48. l. 37. thankfully receive and with it do solemnly Promise and Swear to govern both Church and State in Peace And I vow to Rule my Subjects with that Iustice and prudent Care as becomes a good King. I will with the Advice and Consent of my Great Council enact right Law Which done * The Invocation be Witness all ye Saints that to the utmost of my Power I will my self religiously keep and observe it For what can be more vain and inconsistent with the common Reason of all Mankind than for a Prince publickly and solemnly to ordain a Law and the next moment after to break and abrogate it in his Closet All Rapines I will forbid and all false Judgments no illegal or ARBITRARY ACTS under pretence of the Prerogative-Royal will I suffer or permit to the oppression of my ENGLISH Subjects between whom and my Normans I will administer EQUAL RIGHT And that God Angels my NORMANS and You O Sacred Queen may all be Witnesses and Parties to the sincerity of my Heart That I will not take the English-men's Inheritances by Injustice or thrust them out of their Paternal Possessions by wrong That I have not nor will pretend to any Absolute or Despotical Power over their Lives Liberties and Estates nor violate break or alter the Fundamental Rights of the Kingdom as Tyrants do who only design to enslave their People I do here solemnly promise and swear in the presence of all Ye mighty Powers inviolably to observe and keep the Sacred Laws of St. Edward my Kinsman Which said the Arch-bishop of York sets the Imperial Crown upon WILLIAM's Head and thus of a Duke of NORMANDY he was created KING of ENGLAND TO MY Worthy FRIEND The Learned Author of Argumentum Anti-Normannicum GReat Britain fairest Queen of all the Isles Inrich'd at Home with bounteous Natures smiles Thou such a self-sufficiency dost own All Countries need thy Stores but thou want'st none Divided from the World Thou to thy self art one The Sea and Continent proclaim Thee Great Proud Monarchs have lain Captives at thy Feet The Scales of th' Western World are in thy Hand Each Kingdom 's Fate depends on thy Command Where e're thy Friendship and thy Force combine Against that State in vain the Rest design To Thee no Ills from Forreign Foes can come The basest and more dangerous are at Home No Desert Beasts of Prey thy Land does bear But yet worse Beasts within thy Bowels are Who would thy Rights and Ancient Glories tear Those having lost their Liberty of Mind From vanquish'd Sires a weak excuse would find Are these thy Sons Or Marks of thy disgrace Who own themselves a slavish conquer'd Race The Norman Duke on Terms receiv'd the Crown Swore He 'd by Edward's Laws support his Throne Which sure no absolute Victor would have done That Title which his Great Successor hath Came from the Pact not from the Breach of Faith. That gives the Bounds to all incroaching Might And sets the Banks about the Subjects Right Who pulls them down le ts in a raging Sea Which drowns and swallows up all Property Who e're attempt to let that Torrent in At their own Houses may the Waste begin Let them for others Till their proper Land Or under some base Favourites Command May they whilst others riot with their Stores Without Relief beg at their Native Doors Vnder their Countries Curse their Tyrant's Scorn May they with never-ceasing Pangs be
25. E. 3. of old Time used and * 42. E. 3. the Old Law whose Age made it the more venerable and gave an addition of honour to it Well having thus shewn you the Coronation of King William the First and given you the Solemn Oath he at the same time took even before his Consecration that so he might give all possible satisfaction to the English of his resolving to rule accordingly and also having made it plain that it was the same in substance with that the Ancient Saxons took before him I shall now descend briefly to set before you some of his own Charters as likewise some of William the Second's and of Henry the First 's his Children and succeeding Kings and from them evidence to you I hope demonstrably that it was not so much his Conquest he relied upon when he was setled in this Imperial Throne as his claim to the Crown of England Jure Hereditario by Right of Inheritance And for the proof of this be pleased to accept of these ensuing Instances 1. In Nomine Patris Filii Carta Antiqua litera D. N. 4. Spiritus Sancti Amen Ego Willielmus Dei Gratia Rex Anglorum Haereditario Jure Factus 2. In Nomine Patris Filii Carta 4. E. 4. m. 27. per Inspex Spiritus Sancti Amen Ego Willielmus Rex Anglorum Haereditario Jure Factus 3. In nomine Sanctae individuae Monast Anglican Vol. 1. fol. 317. Trinitatis Ego Willielmus Dei Gratia Rex Anglorum notum facio omnibus tam posteris quam praesentibus Archiepiscopis Episcopis Abbatibus Comitibus Baronibus omnibus fidelibus Francis Anglis Quod cum in Angliam venissem in finibus Hasting cum excercitu applicuissem contra hostes meos qui mihi Regnum Angliae injustè conabatur auferre 4. In ore gladii saith William the Carra Westm per Inspex 1. E. 4. parte septima m. 26. Mr. Seld. Review p. 483. First 's Charter Regnum adeptus sum Anglorum devicto Haroldo Rege cum suis Complicibus qui mihi Regnum cum providentia Dei destinatum beneficio concessionis Domini Cognati mei gloriosi Regis Edwardi concessum conati sunt auferre c. Come we now to his Second Son William Rufus 5. Willielmus Rex Anglorum Willielmo Carta Regis Willielmi Rufi vide Monast Anglican Vol. 1. fol. 352. Vicecomiti Filio Baldewini omnibus Baronibus suis Ministris qui habitant in Devonescira Salutem Notifico vobis quod mea condonatione Ecclesia beati Olavi Regis Martyris à Monachis belli aedificata in honore beati Nicholai quam cum omni terra quae pertinet ad Ecclesiam suprascripti Martyris meo privilegio videlicet Literis Sigillo liberam facio ita liberam quietam per omâ—ia cum saca soca thol theam infangenetheof warpeni murdro omnibus consuetudinibus operibus auxiliis sicut Pater meus liberam fecit Ecclesiam Sancti Martini de bello ubi hostem devicit ubi Coronam Regni haereditariam sibi bellando adquisivit T. Walchelino Wintoniensi Episcopo Rogero Bigot apud Wintoniam From William Rufus proceed we to his Brother Henry the First And saith he 6. In Nomine Sanctae Individuae Ex Hist Eliensis Eccles M. S. in Bibl. Bodleana inter Codices Cant. l. 58. lib. 3. fol 2. a. Monast Anglican Vol. 1. fol. 95. Trinitatis Patris Filii Spiritus Sancti Anno Incarnationis Dominicae MCVIII Indictione ....... Anno vero Pontificatus Domini Paschalis Papae secundi ✚ Regni quoque mei similiter ✚ Ego Henricus providente divina clementia Rex Anglorum Normannorum Dux Willielmi Magni Regis Filius qui Edwardo Regi Haereditario Jure successit in Regnum c. 7. Again Ego Henricus Dei Gratia Monast Anglican Vol. 2. fol 845. Rex Anglorum Filius Magni Regis Willielmi qui beatae memoriae Edwardo in Regnum Successit 8. To give you one Charter more Ex MS. Domini Rogeri Owen Equit. Aurati The words of that of Henry the First to the Abby of Westminster are Pro memoria Edwardi Cognati mei qui Patrem meum liberosque illius in Regnum suum adoptivos haeredes instituit And thus have I given you as it were a three-fold Cord not easily to be snapt asunder to bind hard my Assertion and to convince those who will not suffer themselves to be over-run by an obstinate Prejudice or captivated by a byass'd Interest that our first William when he came in gained nor such an absolute Victory as is pretended over this Nation for when he came in he had not subdued the fifth part of it but came to the Crown by the Election and Consent of the Clergy and People And foedus pepigit he made a Solemn Covenant with the English to observe and keep those Laws which were bonae approbatae antiquae Leges Regni And this Sir is what I shall endeavour clearly to make out to you in my Answer to your Second Question The Second Question Whether this first William did abolish Quest 2 all the English Laws and changed the whole Frame and Constitution of the Government ANd doubtless not for as my Lord Coke saith The Grounds of Lord Coke ' s Preface to his 8th Report our Common Laws at this day are beyond the Memory or Register of any beginning and the same which the Norman Ex vitâ Abbatis Sancti Albani Conqueror then found within this Realm of England And those Laws he swore to observe which were good approved and ancient Now that these were only his Norwegian Laws sure none can or ought to believe after they have throughly examined these plain Truths which I shall here offer to their fair perusal 1. If they please to consider what was the Title of the Laws called the Laws of King William the First published by Mr. Selden with his learned Notes upon Eadmer and since with the Saxon Laws Why truly the Title was plainly this These are the Laws and Customs which William â—elden ad Endmerum fol. 173. the King granted to the Ce sont les Leis les Custumes que li Reis William grantut a tut le â—euple de Engleterre apres le Conquest de la Terre Ice les meismes que le Reis Edward sun Cosin tiht devant luy whole People of England after the Conquest of the Land. These were those which the King Edward his Cousin held before him In these Laws recited by Hoveden in the Life of King Henry the Second King Edward's Laws are confirmed in these words This we command That all Men have and hold the Law of Edward the King in all things together with those Laws which we have added for the profit of the English So that here was no abolishing of the Old
which I cannot but mention and that is The inconsiderateness of those Men who so mightily cry up the absolute Conquest of William the First over the English as if they were utterly broken and crushed and all their Laws and Tustoms destroyed when as it is demonstrably Sim. Dunelm An. 1088. fâ—â— 214. Angli eum fideliter juvabant manifest that at the Time of Robert and his Normans Treason and Conspiracy against William Rufus then King and his Brother to cut off him and make Robert King in his room I say then the Interest of the English was so great and powerful that it kept the Crown upon Rufus's Head maugre all the Power of the Normans who universally joined with Robert. But Sir now I will consider the import of your next Question The Third Question III. Whether it be true That the The Anonimous Author against Mr. Petyt p. 43. English had neither Estates nor Fortunes left but all was divided between the King and his Normans THough it be confessed that this first William obtained the Imperial Crown of England yet I think I have clearly made it out to you Sir that it was by a Reception upon Terms and not by Right of Conquest and it is no less obvious that the Laws in general which were after such his Acquisition ratified and confirmed and which continued in full force and power were the old Saxon Laws and though it cannot be denied but that he did introduce some new Laws of his own yet those quas constituimus you have heard were made ad utilitatem Anglorum for the Benefit and Advantage of the English without the least mention either of the French or Normans And observable too it is that those Laws were made per Commune Concilium totius Regni Apud Lambard inter Leges Guâ—iel primi fol. 170. de Statut. 55. 1. And if so Sir me thinks this seems as one strong Argument that the English could not have all their Estates Fortunes violently ravished from them nor the King and his Normans at their coming in could not absolutely sweep away all the Stakes because the good Old Law was still in its full being and virtue * Co. 12. Report fol. 65. which was the Metwand and Mensure to try the Causes of the Subjects and †In his first Speech to his first Parliament in Engl. Stat. 1. Jac. c. 2. fol. 1157. by which saith the wife King James the People's security of Lands Livings and Priviledges were preserved and maintained and which also is * K. Charl. 1. Declaration to all his Doring Subjects published with the Advice of his Privy Council Exact Collect. c. p 28. the Inheritance of every Subject and the only security he can have for his Life or Estate And then they could not lose all they had at this rate but it must be by a manifest wrong to the Priviledg as well as well-being of the People and no doubt if the Law had its due course as I have made that plain it had but that their Native Rights were easily recoverable and the ravaging Normans could not keep them in spight of all Justice for that were a total abolishing of the Law. 2. But in the next place Sir I make no question but that I shall convince you that the English at least those who lived in Peace before and at his coming to the possession of the English Throne did quietly and peaceably enjoy their Inheritances and their Titles and Claims to them from their Saxon Ancestors were held good and allowed which to be sure they never could have done had this Kingdom received such an universal Change and Revolution as so many of our late Learned Authors would needs have us firmly to believe Saith Sir Richard Baker in his Chronicle Sir Ric. Baker ' s Chronic. fol. 23. of this King's Life and Reign Though he hath had the Name of Conqueror yet he used not the Kingdom as gotten by Conquest for he took no Man's living from him nor dispossessed any of their Goods but such only whose demerit made them unworthy to hold them as appears by his Act to one Warren a Norman to whom he had given the Castle of Sherborne in Norfolk The Story is faithfully this as you may find in Cambden's Britannia The King it seems had given away Sherborne to Warren a Norman and one that was his great Favourite which Edwinus de Sherborne perceiving who was the true Owner of the Castle and an English Man demands before the King his right in open Court tells him it did de jure belong to him upon this Reason of Law for that he never had took up Arms against the King either before his coming in or Mr. Petyt ' s Ancient Right of the Commons of England asserted Pref. p. 24. since whereupon the King vinculo juramenti astrictus gave Judgment of Right against the Norman and Sherborne recovered the Lordship Sir Henry Spelman tells you the Story which he hath taken out of an Ancient Manuscript concerning the Family of the Sharborns thus Edwinus Spelm. Gloss verbo Drenches p. 184. de Sharborne quidam alii qui ejecti fuerunt è terris suis abierunt ad Conquestorem dixerunt ei quod nunquam ante Conquestum nec in Conquestu suo nec post fuerunt contra ipsum Regem in Consilio Auxilio sed tenuerunt se in pace Et hoc parati sunt probare quomodo ipse Rex vellet ordinare Per quod idem Rex fecit inquiri per totam Angliam si ita fuit quod quidem probatum fuit propter quod idem Rex praecepit ut omnes illi qui sic tenuerunt se in pace in forma praedicta quod ipsi rehaberent omnes terras donationes suas adeo integrè in pace ut unquam habuerunt vel tenuerunt ante Conquestum suum That is Edwin of Sharborn and several others that were ejected out of their Estates and Possessions went to the Conqueror and told him that they never either before or in or after the Conquest were against him the said King either by their Advice or any other Aid but kept themselves peaceably and quietly And this they were ready to make out which way soever the King pleased to appoint Whereupon the said King ordered an Inquisition to be made throughout all England whether it were so or no which was plainly proved Therefore he presently commanded that all those who so kept themselves peaceably in manner aforesaid as these had done should be repossessed of all their Estates and Inheritances as fully amply and quietly as ever they had or held them before his Conquest This is a Case so full to the Point and so plain to every common Understanding in its self that it would be frivolous to make any deductions from it I shall presume to repeat to you the words of a great and Learned Judg in the Reign of King Edward the
there are yet extant the Manuscripts themselves of the Saxon Laws made in the Parliamentary Councils held by them here which are in the Language and Character of those Times and contain in them many of those things which are in the Norman Custumary It is no improbable Opinion That there was a former Establishment of our Laws in Normandy before the Time of Hen. 1. and that it was by Edward the Confessor who as all Writers of our History agree was a great Collector and Compiler of our English Laws He lived a long time with his Kinsman Duke William in Normandy who was willing to please the Confessor in hopes to be appointed by him to be his Successor wherein the Duke's Expectation did not fail him The Confessor having no Children and finding Normandy without a setled Government and wanting Laws advised with his Kinsman Duke William to receive from him the Laws of England which he had collected and to establish them in Normandy which Duke William and his Lords readily accepted for the good of their People and thereby obliged the Confessor Another proof hereof is That such Laws as the Normans had before the Time of Duke William were different from those in the Custumary and from the English Laws As their Law That the Husband should be hanged if his Wife were a Thief and he did not discover it The meaner People were as Slaves and the like and the Trial of Theft by Ordeil which then was not in England Wigorniensis reports That the Normans who came in with Queen Emma the Wife of Ethelred were so hated of the English for their injustice and false Judgment that in the Time of King Canutus they were for this cause banished and it is the less probable that they being so unjust themselves should introduce so just Laws as ours are Between the Conquest of Normandy by Rosâ—o and the Invasion of England by Duke William there were not above 160 Years that of Normandy was about Anno 912. that of England Anno 1060. It is not then consonant to Reason that those Normans Pagans a rough Martial People descended from so many Barbarous Nations should in the time of 150 Years establish such excellent Laws among themselves and so different from the French Laws among whom they were and all parts in the World except England And such Laws which were not only fit for their Dukedom and small Territory but fit also for this Kingdom which in those days was the second in Europe for Antiquity and Worth by confession of most Forreign Historians If we will give credit to their own Authors this Point will be sufficiently evinced by them These words are in the Proem of the Custumary which is entituled Descriptio Normanniae Hucusque Normannicae CONSVETUDINES LATOREM sive Datorem SANCTVM EDWARDVM Angliae Regem c. The same is witnessed by Chronica Chronicorum That St. Edward King of England gave the Laws to the Normans when he was long harboured there And that he made both the Laws of England and Normandy appears sufficiently by the conformity of them for which he cites several Particulars as of Appeals and the Custom of England ad probandum aliquid per credentiam duodecim hominum vicinorum which he saith remained in Normandy to that day Polydore forgetting himself what he wrote in another place saith of King Henry the Seventh that when a Doubt was made upon the Proposal of Marriage of his Daughter to Scotland that thereby England might in time be subject unto Scotland The King answered No and that England as the Greater will draw it to Scotland being the less and incorporate it to the Laws of England as saith the Historian it did Normandy though the owner thereof was Conqueror of England And Sir Roger Owen in his Manuscript affirms That there is not any of our Historians that lived in the space of 200 Years immediately after the Conquest which doth describe our Laws to be taken away and the Norman Custom introduced by the Conqueror Some of them and not improbably mention the alteration of some part of them and the bringing in some Norman Customs effectual for the keeping of the Peace There is yet behind the great Argument most insisted on and often urged by the Gentlemen of another Opinion which is the Title of William who is called the Conqueror from whence they conclude That by his Conquest he changed the Laws and Government of this Nation and that his Successors reckon the beginning of their Reigns from his Conquest To this is answered That a posse ad esse non valet Argumentum the Conquering of the Land is one thing the introducing of new Laws is another thing but there is direct proof to the contrary of this Argument Duke William never Sir-named himself the Conqueror nor was so called in his life-time as may appear by all the Letters Pattents and Deeds that he made wherein he is called Guilielmus Rex Dux c. never Conquestor and our Ancient Historians give him the same Titles and not that of Conqueror In the Title of Nubrigensis's Book he is Sirnamed William the Bastard Malmsbury calls him William the First Hoveden William the Elder Adam de Monmoth saith That 1. Ed. 3. this word Conquest was found out to denote and distinguish the certain Edward because two of the same name were Predecessors to this King and to the Conqueror who claimed the Crown as Heir to Edward the Confessor but saith he we call him the Conqueror for that he overcame Harold Duke William himself claimed to be King of England as Successor and Adopted Heir of the Confessor by his Will and Harold's renounceing of his Title by Oath The Register of St. Albans Matth. Paris and others attest That the Barons of England did homage to him as Successor and he relied on them in his Forreign Wars and the Check given to him by the Kentish Men and the Forces gathered by the Abbot of St. Albans brought him to engage to confirm the Laws of the Confessor and as his Successor by legal Right they admitted him to be their King. Volaterus writes That he was made Heir to the Confessor and was Vncle to him Another affirms That Edward by his Will left England to him Paulus Aemilius and Fulgasius are to the same purpose Pope Alexander the 11th sent him a Banner as Witness that with a safe Conscience he might expel Harold the Tyrant because the Crown was due to him by the Confessor's Will and by Harold's Oath Agreeable hereunto are Gemiticensis Walsingham Malmesbury Huntington Ingulphus Paris Pike Wendover Gaxton Gisburn and others The Antient Deeds of the Abby of Westminster which were sometime in my Custody do prove this King William in his Charter to them sets sorth his own Title to the Crown thus Beneficio Concessionis Cognati mei gloriosi Regis Edwardi In his second Charter dated Anno 15. of his Reign he saith in honour of King Edward who made me
did not That they were ignorant of it is not easily to be presumed because they lived within ten of three hundred Years ago and no doubt but there were some Learned Men among them that knew the ancient Constitutions of the Nation And if they did then were they guilty of the greatest madness and folly that ever was when the Commons prayed that King En plein Parlement que nostre Seigneur le Roy soit Rot. Parl. 15. R. 2. N. 13. estoise ausi frank en sa Regalie Liberte Dignite Royale en son temps come ascuns de cest Noble Progenitors Roys d' Eng †furent en lour temps nient contresteant ascun Estatut ou Ordinance fait devant cest hures a contraire mesment en derogation de la Libertee Franchise de la Corone qu'il soit adnulle de nul force puis touz les Prelates Seigneures Temporels prierent en mesme le manere sur ce nostre Seigneur ledit Roy mercia les dits Seigneurs Communes de la grant tendresse affection qu'ils avoient a la Salvation de son Honeur de son Estate a cause que lour dit priers requestes luy semblerent honestes resonables il sagrea assenta pleinement a ycelles Now can any Man of but an ordinary understanding think That the Parliament intended by this Act to out themselves of all their Ancient and Legal Rights and totally to give up their Estates and Fortunes to the King 's absolute Disposition Is it possible almost to be supposed that they designed to confound and overthrow the whole Polity and Government of the Kingdom and reduce all to the Arbitrary Will and Power of a New Conqueror without a Conquest What Man is there that is not become servile to Common Opinion and implicit Suppositions of so Inventive a Faculty as to conjecture such grand Absurdities And yet these and many more are the direct Consequences of those that endeavour to maintain and justify these pernicious Principles For the Petition and Law is that Rich. 2. should be as free in his Regality Liberty and Dignity Royal as any of his Noble Progenitors Kings of England then it naturally follows That he was to be as Free and Absolute as William the Conqueror And then what is the Conclusion and Result But that the The Anonymus Author against Mr. Petyt p. 43. English were neither to have Estates nor Fortunes left them and therefore it could be no great Matter to them by what Law Right or Property Men held their Estates And so farewel to Parliaments But we know and are well assured That never any such Imagination entred into the Ras Stat. 15 R. 2. f. 161. Minds of the Lords and Commons in 15. R. 2. not only by the Laws made then in that Parliament but by those in the next Id. 16. R. 2. fo 163. Parliament held the next Year after The Commons granted to the King That pur la grant Affiance Affection and 〈◊〉 Parl. 16 R. 2. N. 8. Assurance for the great Trust Affection and Assurance they had in the Noble Person of the King in his most excellent Knowledg and his most sage Discretion and also for the great tenderness they had for his Crown and the Kingdom les drots dicels and the Rights thereof s'accorderant assenterent they agreed and assented in full Parliament That the King by good deliberation and Assent of the Lords of his Wise Council might take the whole Matter touching the Statute of Provisors to him and that he should have full Power and Authority to modify the said Statute against the Pope and Court of Rome and to Ordain by the Deliberation and Assent aforesaid in such manner as he should think best to the Honour of God and of Holy Church and the Salvation of the Rights of his Crown and of the Estate and Profit of this Realm and to put the same in execution when done And that au proschein Parlement at the next Parliament all the Matter aforesaid should be fully shewn as ditz Communes to the said Commons and the Reason thereof is memorable viz. au fin quils purront alors par bon avisement agreer si Dieu plest a ycelles That the Commons then might upon good advice agree thereto if it should so please God. From all which it evidently appears 1. That no Law could be made in Richard the Second's Time or in any of his Progenitors Kings of England which cannot but take in William the First without the Assent of the Lords and Commons in Parliament 2. That none of those Kings could abrogate or make void such Laws when made without the like assent 3. That though the General Phrase viz. That King Richard should be and stand as free in his Regality Liberty and Dignity Royal in his Time as any of his Progenitors were in Theirs and that the King says That the Desires and Requests of the Commons seemed honest and reasonable to him and therefore he gave his Royal Assent to that Law Yet neither the King nor the Lords could ever believe that it was honest and reasonable or that it was any part of the Liberty and Dignity of the Crown to change the whole Frame and Constitution of the English Government by altering and making Laws at Will by taking away the Subjects Possessions and bestowing them upon whomsoever he pleased by destroying the ancient Course and Power of Parliaments and in a word by turning all things topsy turvy And thus we have the Evidence and Proof of the greatest Authority that can be given against the Absurdity as well as falseness of King William's Absolute Conquest viz. a Law and Statute of the Kingdom To conclude all I shall make bold to borrow the words of that great Assertor of the Protestant Cause against the Intollerable Usurpations of Papal Power the so eminently Learned and Pious Thomas now Lord Bishop of Lincoln in his Treatise of Popery or the Principles and Positions approved by the Church of Rome c. in Quarto pag. 116. and say If any Man can truly and impartially as to the sum and substance of the Testimonies here cited for I neither need nor will undertake for every particular Circumstance or Typographical Error either shew 1. That I have misquoted the Authors and Books I cite and that such Passages do not occur in the places quoted 2. Or if they do occur that I have mistook their meaning as to the Purposes for which they are produced I say If any Man can and will ingeniouâ—â—y shew me either of these I shall be so far from not confessing my Fault or declaring how I was misled into it that I shall have a hearty value for any such friendly admonition and receive it with all the grateful acknowledgment as becomes me For my only design is the Detection of Error and Establishment of Truth to future Generations and not to have the World imposed upon by the Tricks Impostures and Artifices which too many have been guilty of either to promote their own particular Gain and Interest to which such care not what they Sacrifice or upon a far worse and more grievous Consideration to bring the whole Nation into dividing Parties and Factions and thus by Embroyls and Entanglements to throw them at last into fatal Convulsions to the destruction both of Prince and People FINIS
trickt him and set the Crown on his own Head he sends over several Ambassadors with Commission to require him to remember the Oath he had formerly made to the said William in the time of his Extremity when he was his Prisoner in Normandy Which was That he the said Harold should assist him in the obtaining of the Crown of England if ever Edward died without Issue 3. And receiving but unkind Returns from Harold by way of Answer to his Demands which thus the Historian relates De Regno addebat praesumptuosum Wil. Mâ—lmesb lib. 3. fol. 56. l. 25. fuisse quòd absque Generali Senatus Populi conventu Edicto alienam illi haereditatem juraverit That as for him to take an Oath to deliver up the Inheritance of any Realm without the general consentand allowance * That is without the assent of the Wittenagemot Mycel Synod or Parâ—iament of the Senate and People could not but be a great piece of presumption yea altho' he might have just title so to do †Praeterea iniquum postulat ut imperio decedat quod tanto favore civium regendum susceperit Malmsb. l. 3. f. 56. l. 30. wherefore it was an unreasonable Request of the Duke now to require him to renounce the Kingdom in which he was so well setled to the good liking and content of his People This Norman Duke not to be his own Judg refers himself to the Pope then Alexander the second to decide the Matter and so resolved that the infallible Chair should determine who had the Justest Title to the Crown and Kingdom Harold or Himself And the good old Gentleman who would not be behind-hand with him in civility for so great a kindness as was the Appealing to him and so flattering him with a Judicatory Power over Princes easily was induced to pronounce sentence on William's behalf But all these blustering Pretences of nearness in Blood which it seems his Son Henry thought to be the best flower in his Garland when he * In his Charter whereby he advanced the Abby of Ely into the degree of a Bishoprick calls himself the Son of William the Great pray Sir be pleased to observe it is not of William the Conqueror Seldeni ad Eadmerum Notae Spicileg fol. 211. lin 39. Qui Edwardo Regi Haereditario Jure successit in Regnum Who succeeded to King Edward in the Kingdom by Right of Inheritance or the Confessor's bequest of the Crown to him Or lastly the Pope's definitive Sentence in William's favour All these blustering Pretences of his I say availed but little with Harold and therefore you must think it could not but incense the Duke of Normandy very greatly so that he had now a just cause of open quarrel against Harold for the Reasons you have heard And thereupon convening his Parliament or Assembly of three Estates which consisted Nobility is taken in France for Gentlemen as well as for Earls or persons of like dignity of the Clergie Nobility and Commons the Nobility in fine promised to serve him Verstegan ' s restitution of decayed Intelligence in Antiquities dedicated to King James pag. 173. and the Clergie and People to aid him with Mony according to their several Abilities and such offers as they made were forthwith set down in writing by a Secretary there present So that being thus supplied and assisted with several other of his Friends he makes for England and was no sooner arrived at a place in Sussex called Pevenessey now Pemsey and got well on Land but by his Proclamation he declared upon what Occasions he thus entred the Realm and so preparing to give Harold Battle he hereby seemed as if he would have all the World to know his Quarrel was more Personal than National But this I will speak more particularly and largely to when I come to mention some of the Charters he made after he was established King. And as Perjury seldom or never escapes unpunished so here was a visible Instance of the Divine Justice upon Harold for his breach of Oath and Covenant to the Duke for in the Battle of Hastings he met with his Reward losing both his Crown and his Life at once and leaving William to finish the day with Victory over those that were yet resolved to dispute the Cause with him And now being rid of his stubborn Enemy and in the heat of the Chase got to London he possessed himself of that Kingdom which he pretended was his own by Right before from the Titles we have already mentioned Yet however it was in no such haughty and insulting way as many boast of and would gladly have their unwary Readers to believe upon their bare Credit and Testimony but he chose the more grateful and complying Artifices of a Courtier and setled himself in it by a kind of mutual Agreement and express compact as now I hope will be clearly demonstrated by what I shall offer to you after this his pretended absolute Conquest For 1. Tho' he was victorious over his great Adversary Harold yet if he had been an absolute Conqueror as hath been of late so vigorously asserted by our Modern Writers what urgent necessity was there for him or how did it stand him in such mighty stead still to keep himself armed with the aforesaid Titles that so he might have the more colourable pretence of Right and Justice on his side in laying a legal Claim to this Imperial Crown For me-thinks if he had a full possession upon such a forcible entry as is pretended this had been a stronger Title than any thing else he could have alledged for how could or durst a vanquished enslaved Nation dispute with him when he rode triumphing on their Backs and had lashed them into an entire submission of vassalage But 2. Let us see the manner of this first King William's Coronation and whether or no he did not take an Oath at the same time which was in sence and substance if not just in the words themselves the very same with that which the Ancient Saxon Kings used likewise to take upon their Coronations And for your full satisfaction herein I shall give you the parallel of them both together and begin first with The Oath of either King Edward In vita Aelfredi Magni fol. 62. Promissio Regis vel Edvardi vel Aethelredi utrumque euim Dunstanus Kingstoniae Coronavit circa Ann. 970. or King Ethelred for Dunstan crowned both of them at Kingston about the Year 970. This writing punctually to a Letter Hoc Scripto de litera ad literam descriptum est ad scriptum illud quod Dunstanus Archiepiscopus tradebat Domino nostro Kingstoniae ipso illo die quo Consecratus erat in Regem atque illi interdicebat ne ullam sponsionem daret praeter sponsionem illam quam deposuerat in Altari Christi quemadmodum Episcopus illi dictaret corresponds with that Writing which Dunstan the
Laws of Saint Edward which the English were so fond of this William solemnly swore before God Angels and Men for ever inviolably to keep and observe But before I leave this your Second Question Sir I think it will be no ways improper to give you the signification of the word Conquest and in what sence Historians and learned Antiquaries have understood it 1. Matthew Paris hath it thus Rex Mat. Paris fol. 941. Angliae ex Conquestu dicitur tamen quod beatus Edwardus eo quòd haerede caruit Regnum legavit Willielmo Bastardo Duci Normannorum 2. Sir Henry Spelman in his Glossary Spelm. Gloss tit Conquestus fol. 145. says Willielmus Primus Conquestor dicitur quia Angliam conquisivit id est acquisivit purchased non quod subegit not that he subdued it 3. Sir John Skene Clark of the Register Skene p. 39. Council and Rolls to King James in Scotland in his Book De Verborum significatione tells us That Conquestus signifies Lands quhilk ony Person acquiris and possessis privato jure vel singulari titulo veluti donatione vel singulari aliquo contractu 4. And it seems to me not improbable that the Title of Conqueror rather than of Victor was assumed by him as being a word more mild and originally signifying as it does in Scotland a Purchaser which is he that cometh to a real Estate not by hereditary Descent but by Bargain or Gift c. Conquestus dicitur ratione Mr. Skene de Verborum signifie verbo Conquestuâ— primi Conquestoris cum transmittitur ad ejus haeredem exuit naturam Conquestus induit naturam Haereditatis 5. And that the word Conquestus did signify what the Historians say it did we have Records to justify their Exposition whereof I shall produce one and that is above 480 Years ago It says Robertus Filius Nigelli petit versus Richardum Battail Capitale Messuagium c. Ricardus venit dicit quod pater c. fuit persona Ecclesiae de Conquestu suo c. dedit c. Placita de terris Mich. 2. Johan penes Camerar Scaccar remanen Now surely none can make the word Conquestus here to signify that the Father of Battel got the Advowson by Conquest in our modern sense but that he had it by his own purchase 6. Sir Roger Twisden in his Preface before King William's Laws and he well enough understood the full meaning of the word Conquestus says Non existimo Willielmum primum Apud Lambardum in Prefac 155. de omnium Anglorum terris ad voluntatem suam pro libitu in modum absolutae dominationis disposuisse I do not in the least imagine that William the First had the disposition of the Lands of all the English according to his own Arbitrary Will and Pleasure and after the manner of an Absolute Conquest Now Sir by these several Explanations of the word I think it is very obvious to any impartial Considerer that however we construe and interpret it now being either urged by Flattery or Interest so to do it never did even in that Age it self import or signifie such an absolute and entire Conquest as to carry along with it the enslaving of the whole English Nation after William's Victory over Harold Nay tho' every Body will acknowledg that this Harold came to the Imperial Crown of England * à totius Angliae Primatibus ad Regale Culmen electus Abrev. Chron. Rad. de dicâ—to fo 479. by a general Election of the Chief of the Nation yet there is an Ancient Author calls him Conqueror And what then shall we think of the signification of the word but that it was an Acquest at most and that too by the Voice and Suffrage of the People saith he Heraldus strenuus Dux Conquestor MS. ex Bib. Domini Wild defuncti Angliae But Sir this is not all I must beg your patience and leave for the better illustration of the word Conquest and to disabuse the World in this Point to present you with this following Summary SERIES Of the Stiles of our several descendant Kings from this William the First inclusively to the Great King Edward the Third and therein make an Observation which perhaps as yet hath scarcely been taken notice of The Stiles of the Kings 1. WIllielmus Rex Anglorum c. W. 1. and sometimes Willielmus Cognomento Bastardus Rex Anglorum c. 2. Willielmus Rufus Rex Anglorum W. 2. c. and sometimes Willielmus Dei Gratia Rex Anglorum c. 3. Henricus Rex Anglorum c. and H. 1. sometimes Henricus Willielmi Magni Regis Filius 4. Stephanus Rex Anglorum c. and Steph. sometimes Stephanus Dei Gratia Rex Anglorum c. 5. Henricus omitted Dei Gratia and H. 2. used this Stile Henricus Rex Angliae c. and sometimes Henricus Filius Imperatricis Matildae Rex Angliae c. 6. Richardus Rex Angliae c. R. 1. 7. Johannes Rex Angliae c. and added John. this Dominus Hiberniae 8. Henricus Filius Johannis Rex Angliae H. 3. c. 9. Edwardus Rex Angliae c. E. 1. 10. Edwardus Filius Edwardi primi E. â— Rex Angliae c. And now we are come to the great Epocha of Time when the Stile of our Kings altered Edward the Third in the beginning of his Reign in several Records writ himself Edwardus Filius Edwardi Filii Edwardi that is Edward the Son of Edward the Second the Son of Edward the First But this distinction not being well approved of and having considered that before the Conquest there had been two King Edwards he in all Fines and in general Records writ himself Edwardus Rex Angliae c. tertius post Conquestum which was done in the second Year of his Reign Anno Dom. 1328. which Rule was followed by Richard 2. Hen. 4. Hen. 5. Hen. 6. and so to succeeding Kings downwards And Sir to give you a further proof that King William did not Cancel and Abolish all the English Laws nor change as is so much affirmed the whole Frame and Constitution of the Government be pleased to hear the Judgment of Mr. Selden and the Opinion of Sir Winston Churchill and I hope they are such unquestionable Authorities as may sufficiently ballance if not totally depress the fiercest of Gain-sayers I shall begin with the great and ever famous Selden for whose Memory as truly deserving I have the highest regards and shall transcribe his words at large which may not only serve for a good Solution to this your Second Question but indeed may possibly fully satisfy you as to your other three His words are The Laws of before as well as of Selden ' s Review of his History of Tithes p. 482 483 484. after the Norman Conquest as it is vulgarly called are here gathered and are perhaps equally observable
as the Rest in the consequent of a general consecration of Tithes to the Church in England For neither were the Laws formerly made abolish'd by that Conquest altho' by Law of i Vid. Quintilian lib. 5. Institution cap. 10. Athe. Gentil de â—â—re belli lib. 3. cap. 5. Hottoman illust Quaest 5. War regularly all Rights and Laws of the Place conquered be wholly subject to the Conqueror's Will. For in this of the Norman not only the Conqueeor's Will was not declared that the former Laws should be abrogated and until such Declaration Laws remain in force by the Opinion of k Calvin's Can. fol. 17. b some in all Conquests of Christians against Christians but also the ancient and former Laws of the Kingdom were confirmed by him For in his fourth Year by the Advice of his Baronage he summoned to London omnes Nobiles sapientes Lege sua eruditos ut eorum Leges Consuetudines audiret as the words are of the Book of Litchfield and afterward confirmed them as is further also related by l in H. 2. p. 347. Roger of Hoveden Those Lege suâ eruditi were common Lawyers of that Time as Godrie and Alfwin were then also who are spoken of in the Book of m MS lib. 2. p. 33. 30. in Biol Cotton Abingdom to be Legibus Patriae optime instituti quibus tanta secularium facundia praeteritorum memoria eventorum inerat ut caeteri circumquaque facilè eorum sententiam ratam fuisse quem edicerent approbarent And these two and divers other Common Lawyers then lived in the Abby of Abingdon Quorum collationi nemo sapiens says the Author refragabatur quibus rem Ecclesia publicam tuentibus ejus oblocutores elingues fiebant You must know that in those days every Monk here in England that would might remain so secular that he might get Mony for himself purchase or receive by descent to his own use And therefore it was fit enough for practising Lawyers to live in Monasteries But what had those praeteritorum memoria eventorum that is Reports and adjudged Cases of the Saxon Times availed in their skill if the former Laws had not continued More obvious Testimonies to this purpose are had out of u Videsis Cok. Praefar ad Relat. 3. 8. si placet Not. ad fortesc p. 7 8. Gervase of Tilbury Ingulphus and others and we here omit them But also indeed it was not to be reputed a Conquest or an Acquisition by right of War which might have destroyed the former Laws so much as a violent recovering of the Kingdom out of the hands of Rebels which withstood the Duke's pretence of a lawful Title claimed by the Confessor's adoption or designation of him for his Successor his nearness of Blood on the Mother's side not a little also aiding such a pretence to a Crown For the Confessor's Mother Emme was Sister to Richard the Second Duke of Normandy to whom William was Grand-child and Heir But these were only specious Titles and perhaps examined curiously neither of them were at that time enough And howsoever his Conscience so moved him at his death that he profest he had got * Historia Cadonensis England only by Blood and the Sword yet also by express Declaration in some of his Patents he before pretended his Right from the Confessor's Gift p Chart. Eccl s Westm in inspex part 7. 1. Ed. 4. m. 26. vid. Camb. pag. 104. In ore gladii saith he Regnum adeptus sum Anglorum devicto Haraldo Rege cum suis complicibus qui mihi Regnum cum providentia Dei destinatum beneficio concessionis Domini cognati mei gloriosi Regis Edwardi concessum conati sunt auferre c. And the Stories commonly tells us That the Confessor Successionem Angliae ei dedit And although Harold also pretended a Devise of the Kingdom to himself made by the Confessor in extremis and urged also that the Custom of England had been from the time of Augustine's coming hither q MS. sive Autor Guil. Pictav sive quis alius sit in Bibl. Cotton Donationem quam in ultimo fine quis fecerit eam ratam haberi and that the former Gift to the Norman and his own Oath for establishment of it were not of force because they were made r Malmesb. lib. 5. de Gest Regum p. 56. a. aliâ— in Will. 1. videsis Mat. Paris in Hen. 3. p. 1257. Edit Londin absque generali Senatus Populi conventu edicto yet for his own part he was driven to put all upon the Fortune of the Field and so lost it And the Norman with his Sword and pretence of the sufficiency and precedence of the Gift made to himself got the Crown as if he had been a lawful Successor to the Confessor and not an Vniversal Conqueror All this is plain out of the Stories and justified infallibly by that of the Titles of many common Persons made to their Possessions in England after his Kingdom setled upon the possession of themselves or their Ancestors in time of the Saxon Kings especially of the Confessor But this was always in case where they by whose possession the Title was made had not incurr'd Forfeiture by Rebellion Many such Titles are clearly allowed in the Book of Dooms-day written in the Conqueror's Time One especially is noted by the most learned Camden in his Norfolk That as I remember is touched in Dooms-day also but enough others are dispersed there which agree with it How could such Titles have held if he had made an absolute Conquest of England wherein an Vniversal Acquisition of all had been to the Conqueror and no Title could have been derived but only from or under him More might be brought to clear this but we add here only the judicious Assertion of a great s Shard in cas in itin temp Ed. 3. fol. 143. b. Lawyer of Edward the Third's Time Le Conqueror saith he ne vient pas pur ouster eux que avoient droiturell possession mes de ouster eux que de leur tort avoâ—ent occupie ascun terre en disheritance del Roy son Corone It was spoken upon an Objection made in a Quo Warranto against the Abbot of Peterborough touching a Charter of King Edgar which the King's Councel would have had void because by the Conquest all Franchises they said were devolved to the Crown But by the way for that of his nearness of Blood which could not but aid his other pretended Title let it not seem meerly vain in regard of his being a Bastard There was good pretence for the help of that defect also For although the Laws of this Kingdom and I think of all other Civil States at this day exclude Bastards without a subsequent Legitimation from Inheritance yet by the old Laws used by his Ancestors and Country-men that is by those of Norway a Prince's Son gotten
t Vid. Roger de Hoveden in Rich. 1. fol. 425 347. on a Concubine bond or free was equally inheritable as any other born in Wedlock which was I believe no small Reason why he stood at first so much for the Laws of Norway to have been generally received in this Kingdom And some Stories also which make mention of Duke Robert his getting William on that Arlet or Arlec as she is sometimes written say That she was to him a good while vice Vxoris So Henry of u In Bibl. Cotton Knyghton Abbot of Leicester Transiens saith he Robertus asiquando per Phaleriam Vrbem Normaniae vidit puellam Arlec nomine Pelleparii Filiam inter caeteras in Chorea tripudiantem nocte sequente illam sibi conjunxit quam vice Vxoris aliquamdiù tenens Willielmum ex ea generavit And he tells us also the common Tale of tearing her Smock If she were so his Concubine or Vice-conjux between whom and a Wife even the old x Fide Legat 3. L. Item Legato 49. §. 4 Imperials make no other difference but Honour and Dignity and by them also some kind of Inheritance is allowed to y Authent 89. c. 12. discretis igitur c. such Bastards as are Naturales liberi that is gotten on Concubines it was much more reasonable that her Son should be reputed as Legitimate than that the Son of every single Woman bond or free whether Concubine or no should be so as the Laws of Norway allow And when he had inherited his Dukedom he made doubtless no question but that his Blood was as good in regard of all other Inheritances that might by any colour be derived through it And therefore William of Malmsbury well stiles him proximè consanguineus also to the Confessor as he was indeed on the Mother's side And those z Videsis Malmsb. de Gest Reg. lib. 2. fol 52. of the Posterity of Edward Son to Iron-side were then so excluded or neglected that their nearness on the Father's side could not prevent him You may see the common Stories of them But whereas that excellent a 18. E. 4. fol. 30. a. Lawyer Littleton says That William the Conqueror was called a Bastard because he was born before Marriage had between his Father and Mother and that after he was born they were married which indeed by the b C. tit de Nat. lib. c. eum quis 10 c. Imperials and by the general Law of c Videsis Bacquet de Domaino du fr-tract du Bastardise c. 9 c. France would have made him wholy legitimate I doubt he had but little or no ground to justify it Had he been so legitimate it is not likely he should have been stiled so commonly and anciently Bastardus which Name even in his d Apud Cambden in Richmondia own Charters he sometimes used with cognomento as also the Bastards of the old Philip Duke of Burgundy were wont to do although of later Time it be reputed as a Name of dishonour and the actio injuriarum or an Action upon the Case lies where-ever it be falsly objected as some will e Videsis Pont. Heuterum de liberis Natural c. 12. have it But these things prove enough that this William seized the Crown of England not as conquered but by pretence of Gift or Adoption aided and confirmed by nearness of Blood and so the Saxon Laws formerly in force could not but continue And such of them as are now abrogated were not at all abrogated by his Conquest but either by the Parliaments or Ordinances of his Time and of his Successors or else by non-usage or contrary Custom Surely then none can believe that William claimed only by the Sword and made an absolute Conquest or that he abolish'd all the old Saxon Laws and constituted a new Frame and Systeme of Government entirely for the Interest of his Normans and to the slavery and ruin of the whole English nor can any one me-thinks after this categorically attest that there were no English Men in the Common Council of the whole Kingdom or that the English had neither Estates nor Fortunes left and that therefore it were of no great matter and consequence to them by what Law Right or Property other Men held their Estates But not to dwell upon the great Authority of this Learned Man we will now hear what Sir Winston Churchill can inform us as to your Second Question Whether the Laws were totally abolished and a New Government set up according to the Arbitrary Will and Pleasure of this Norman Conquenor And thus he writes in his Book dedicated to his present Majesty Duke William better known to us Sir Winst. Churchill's Divi Britannici fol. 189. here by the Name of the Conqueror who with like Confidence and not unlike Injustice as Rollo did Normandy the seventh in Descent from whom was this Duke invaded England pretending a Donation of the Soveraignty from his near Kinsman King Edward the Confessor confirmed as he alledged by his last Will and Testament in the presence of most of the English Nobility But Id. fo 190. what we allow to the Courage we must take from the Wisdom of the English that being subdued they continued nescia vinci vexing the Conqueror after they had submitted to him by such continual Revolts as suffered him not to sheath his Sword all his Reign or if he did urged him to continue still so suspitious of their Loyalty that he was forced always to keep his hand upon the Hilt ready to draw it forth having not leasure to intend what was before established much less to establish what he before intended So that they put upon him a kind of necessity of being a Tyrant to make good his being a King Yet such was the moderation of his mind that he chose rather to bind them stricter to him by the old Laws than to gall them with any New guarding his Prerogative within that Citadel of the Burrough Law as they called it from whence as often as they began to mutiny he battered them with their own Ordnance and so made them Parties to their own wrong and however some that designed to preoccupate the Grace of Servitude gave him the ungrateful Title of Conqueror which he esteemed the greatest misfortune his good Fortune had brought upon him thereby to proclaim his Power to be as boundless as his Will which they took to be above all Limitation or Contradiction yet we find he suffered himself to be so far conquered by them that instead of giving to he took the Law from them and contentedly bound himself up by those which they called St. Edward's Laws which being an abbreviation of the great Tripple Code of Danique Merke and West-Sexe Laws was such a form of Combination as he himself could not desire to introduce a better and if any thing look'd like Absolute 't was his disarming them when he found them thus Law-bound hand and foot
between the Arch-bishop of York and this same Bishop of Worcester was here judicially determined And 4. If there were no English Men in this great Council how then came it to pass that the Bishop of York and London were there who certainly were Bishops in the Saxon Times And it may also seem not improbable that there was then an universal Consent among them that these two Bishops should be intrusted to write down for them the English Laws 5. And there is one great Thing more to close withal which is That at this Parliament when the Saxon Laws were confirmed there was a particular Law past Carta Regis Wil. ielm apud Lambard c. 54. fol. 170. in favour of the Normans qui ante adventum Guilielmi Cives fuerant Anglicani that they should be participes Consuetudinum Anglorum quod ipsi dicunt Anhlote Anscote persolvant secundum Legem Anglorum The meaning of the words Anhlote Sir H. Spelm. Gloss verbo Anhlote f. 31. and Anscote as Sir Henry Spelman informs us is vulgò Scot Lot that is That every such French Man should not be charged with double Taxes and Duties as a Foreigner but that he should pay his easy share and proportion as any natural English Man. But then II. It was in such a grand Assembly of wise Men of the Kingdom where Lanfranc was elected to the See of Canterbury for it was by the Assent of the Lords and Prelats and of the whole People that is to say by the Parliament of England This likewise was about the fourth Year of the Conqueror And an Ancient Historian writes thus of Gervas Dorobernens Act. Pont. Cant. fol. 1653 l. 5. his Election Eligentibus eum Senioribus ejusdem Ecclesiae cum Episcopis ac Principibus Clero Populo Angliae in Curia Regis in Asumptione Sanctae Mariae But another Contemporary Writer gives it you in these words Relat. Willielm prim ad finem tract de Gavelkind à Syla Taylor p. 194. Rex mittens propter illum in Normanniam fecit eum venire in Angliam eique Consensu Auxilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque Populi Angliae commisit ei Dorobernensem Ecclesiam III. There was another General Ex Cartulario Coenobii Westmonasteriensis in Biblioth Cotton sub effigie Faustinae A. 3. Dugdal Orig. Juridic sol 16. Council or Parliament held at Westminster in the fourteenth Year of this King where by his Charter he confirmed the Liberties of that Church after he had subscribed his own Name with the Sign of the Cross adding many of the great Clergy and Temporal Nobility and instead of cum multis aliis says multis praeterea illustrissimis Virorum personis Regni Principibus diversi ordinis omissis qui similitèr huic confirmationi piissimo affectu Testes Fautores fuerunt Hii autem illo Tempore à Regia potestate Provincia i. e. Comitatus Seld. Tit. Hon fol. 273. Spelm. Gloss Tit. Provincia f. 471. diversis Provinciis Vrbibus ad Vniversalem Synodum pro causis cujuslibet Christianae Ecclesiae audiendis tractandis ad praescriptam Celeberrimam Parliamentum Synodus magna nuncupatur Somneri Gloss Synodum quod Westmonasterium dicitur Convocati c. In the Margin of the Book there is writ this Remarque Nota hic hos omnes convocari à Rege suâ auctoritate ad causas Religionis tractandas tà m Nobiles de Clero quà m Principes Regni cum aliis inferioris gradus Convocatio quorum videtur esse Parliamentum IV. I think by the general direction of the Writs of this King as also by that of his Charters some of which I have given you in my Argument to your third Question and therefore shall refer you back to them it is plainly demonstrable that William had as well English Barons as French Barons and that his Barons were always a part of his great Council will hardly I suppose be denied by any And that one Law of his which may be called the First MAGNA CHARTA in the Norman Times by which the King reserved to himself from the Free Men of this Kingdom nothing but their free Services due to him according to Law in the conclusion saith That they to wit the English LL. Guilielm c. 55. shall hold and enjoy their Estates well and in peace free from all unjust Exactions and Tallage and this ratified and confirmed by the Common Council of the whole Kingdom which cannot be restrained to the Norman Barons only So that herein is asserted the Liberty of the English Free-men and of the Representative Body of the Kingdom These I think are uncontrovertible Proofs and Evidences 1. That there were General Councils or Parliaments in this first William's Time. 2. That in these Parliaments the English Barons as well as the French Barons were present 3. And lastly That there likewise was as an essential part thereof 1. The Communitas Anglorum the Community of English-men 2. Besides the Bishops and Nobility there were the Clerus Populus the Inferior Clergy and People of England And 3. Not only the Great Clergy and the Temporal Nobility but the Principes diversi Ordinis a Regià potestate diversis Provinciis Vrbibus ad Vniversalem Synodum Convocati c. viz. The Chief and Principal Men of several Ranks and Degrees in Condition were summoned by virtue of the King 's Writ out of their several respective Counties Cities and Burroughs to this General Synod or Parliament And Sir if this be so I doubt not but that both your self and all judicious and unbiassed Persons who have not resolved to espouse a Party and who will not suffer themselves to be drawn aside by any novel unwarrantable Opinions but will fairly submit their Judgments to clear and perspicuous Truth when once it manifestly appears I say both you and they will certainly rest satisfied in these great and powerful Authorities which I have here presented to publick view and serious consideration and I think these have sufficiently made out and proved That 1. William the first vulgarly called the Conqueror did not get the Imperial Crown of England by the Sword nor made an absolute Conquest of the Nation at his first entrance 2. Nor that he abolished all the English Laws or changed the whole Frame and Constitution of the Saxon Government But 3. That the English had still Estates and Fortunes continued to them and that it was a great mistake in any to affirm That the King and his Normans divided and shared them all among them As likewise 4. In the fourth place It has been a grand Error to ascertain That there were no English Men in the Common Council of the whole Kingdom in the Reign of William the Conqueror Now Sir as a corroborating Testimony to explain and enforce what I already have said I shall conclude my Discourse at present with a very memorable and studied Speech of a
his Heir and adopted me to Rule over this Nation In his Charter dated 1088. of the Liberties of St. Martins the Great in the Manuscript thereof are these words In Example of Moses who built the Tabernable and of Solomon who built the Temple Ego Guilielmus Dei dispositione consanguinitatis Haereditate Anglorum Basileus c. The Charter of Hen. 1. his Son to this Abby in honour of Edward my Kinsman who adopted my Father and his Children to be Heirs to this Kingdom c. In another Charter of Hen. 1. in the Book of Ely he calls himself the Son of King William the Great who by Hereditary Right succeeded King Edward It is true as to his pretence of Title by the Will of the Confessor Mathew Paris objecteth That the Devise was void being without the consent of the Barons To which may be answered That probably the Law might be so in Hen. 3. Time when Paris wrote and was so taken to be in the Statute of Carlisle and in the Case of King John. But at the time of Duke William's Invasion the Law was taken to be That a Kingdom might be transferred by Will. So was that of Sixtus Rufus and Asia came to the Romans by the Will of King Attalus the words by Annaeus Florus are Populus Romanus Bonorum meorum HAERES esto Bithinia came to the Romans by the last Will of their King Nicomedes which is remembred by Vtropius together with that of Libia Cicero in his Oration tells us That the Kingdom of Alexandria by the last Will of their King was devolved to Rome And Prasutagus Rex Icenorum in England upon his Death-bed gave his Kingdom to the Emperor Nero. As to Examples in this Point at Home This King William the first by his Will gave England to his younger Son William Rufus King Stephen claimed by the Will of Henry the first King Henry the eight had Power by Act of Parliament to order the Succession of the Crown as he pleased by Will. And the Lords of the Council in Queen Mary's Time wrote to her That the Lady Iane's Title to the Crown was by the Will and Letters of Edward the sixth As the case of Hen. 8. was by Act of Parliament so Duke William after he had conquered Harold was by the general consent of the Barons and People of England accepted for their King and so his Title by Will confirmed And he both claimed and governned the Kingdom as an Heir and Successor confirmed their Antient Laws and ruled according to them This appears by Chronica Chronicorum speaking of William the Bastard King of England and Duke of Normandy he saith That whereas as St. Edward had no Heir of England William having conquered Harold the Vsurper obtained the Crown under this Condition That he should inviolably observe those Laws given by the said Edward It is testified likewise by many of our Historians That the Ancient Laws of England were confirmed by Duke VVilliam Jornalensis saith That out of the Merchen-Lage West-Saxon-Lage and Dane-Lage the Confessor composed the Common Law which remains to this day Malmesbury who lived in Duke William's Time saith That the Kings were sworn to observe the Laws of the Confessor so called saith he because he observed them most religiously But to make this Point clear out of Ingulphus he saith in the end of his Chronicle I Ingulphus brought with me from London into my Monastery Crowland the Laws of the most Righteous King Edward which my Lord King William did command by his Proclamation to be Authentick and Perpetual and to be observed throughout the whole Kingdom of England upon pain of most heinous punishment The Lieger-Book of the Abby of Waltham commends Duke William for restoring the Laws of the English-men out of the Customs of their Country Radburn follows this Opinion and these Laws of Edward the Confessor are the same in part which are continued in our GREAT CHARTER of LIBERTIES A Manuscript entituled De Gestis Anglorum saith That at a Parliament at London 4. W. 1. the Lawyers also present that the King might hear their Laws he established Saint Edward's Laws they being formerly used in King Edgar's Time. There is also mention of the twelve Men out of every County to deliver truly the Estate of their Laws The same is remembred by Selden's History of Tythes and Titles of Honour and in a Manuscript Chronicle bound with the Book of Ely in Cotton's Library One of the worthy Gentlemen from whom I differ in Opinion was pleased to say That if William the Conqueror did not introduce the Laws of Normandy into England yet he conceives our Laws to be brought out of France hither in the time of some other of our Kings who had large Territories in France and brought in their Laws hither else he wonders how our Laws should be in French. Sir I shall endeavour to satisfy his Wonder therein by and by but first with your leave I shall offer to you some Probabilities out of the History That the Laws of England were by some of those Kings carried into France rather than the Laws of France brought hither This is expresly affirmed by Paulus Jovius who writes That when the English Kings reigned in a great part of France they taught the French their Laws Sabellicus a Venetian Historian writes That the Normans in their Manners and Customs and Laws followed the English Polydore Virgil contradicting himself in another place than before cited relates That in our King Hen. 6. Time the Duke of Bedford called together the Chief Men of all the Cities in Normandy and delivered in his Oration to them the many Benefits that the English afforded them especially in that the English gave to them their Customs and Laws By the Chronicle of Eltham H. 5. sent to Cane in Normandy not only Divines but English Common Lawyers by the agreement at Troys So there is much more probability that the Laws of England were introduced into France and Normandy than that the Laws of Normandy or any other part of France were introduced into England If the Normans had been Conquerors of England as they were not but their Duke was only a Conqueror of Harold and received as Hereditary King of England yet is it not probable they would have changed our Laws and have introduced theirs because they did not use to do so upon other Conquests The Normans conquered the Isles of Guernsey and Jersey yet altered not their Laws which in their local Customs are like unto ours The like they did in Sicily Naples and Apulia where they were Conquerors yet the Ancient Laws of those Countries were continued I hope Mr. Speaker I have by this time given some satisfaction to the Worthy Gentlemen who differed from me that the Laws of England were not imposed upon us by the Conqueror nor brought over hither either out of Normandy or any other part of France but are our Ancient Native Laws I must now come to indeavour