and great cause they had for their doing so for Remarkable is it that in the beginning of his Reign he made a conscience to keep it and this the Historian plainly proves for so far was he from pretending to be a Conqueror or from exercising absolute Power and Soveraignty over the English that you see he denied to none right Judgment who required it of him he condemned none but those who deserved it by the condemnation of the Law he strictly commanded his great Men to whom he had given the Estates of those who had been hold in Arms against him under King Harold that they should behave themselves with all due moderation and temper and he invited them to Acts of Iustice by his Example He charged them always to have God before their Eyes by whose Arms they had so far overcome That they should nay ought not too much to oppress those they had got the better of who were Christians with them lest those whom they had justly subdued should by such their Oppressions be forced to rebel again he strictly forbad them all Violences that they should restrain themselves from all Cruelties and Rapines That as the People should be kept in Peace by his Arms so their Arms should submit to and be governed by the Laws Nor did he only give this admirable Advice but he prudently governed himself and set easy Boundaries to those Services Taxes Aids quod de jure Apud Lambar LL. Wil. prim fol. 170. c. 55. facere debent which were due to him by the Law he absolutely denied all Pardons and Grace to Robbers and all disturbers of the Publick Peace and wicked Persons He commanded all the Roads to be free and open for Travellers and that no Injuries should be done them so that the beginning of his Reign was as it were a Golden Age and his Clemency and other Acts of Goodness still shone brighter to the happiness of his Subjects which was confirmed towards the Loyal and Dutiful by his steady and commendable perseverance Where in all this is there any pretence to absolute Conquest and despotical Dominion And now to conclude I shall produce an Evidence that is omni exceptione major it is Gulielmus Pictavensis who as Ordericus Vitalis in fine litri tertii writes was Regis Gulielmi Capellanus and writ the Acts of William the First And he categorically says it That Nulli tamen Gallo datum est quod Anglo cuiquam injustè fuerit ablatum that is according to the Judgment given in Sharborn's case That those who had kept themselves unconcerned and had neither consilio vel auxilio assisted Harold against William had the full and free benefit of the Saxon Laws and had not their Estates unjustly taken from any of them and given to his French and Normans Gulielm Pictavens in Gesta Gulielm Ducis Norman Regis Anglorum fol. 208. But I will leave this Sir and now come to your fourth and last Question The Fourth Question IV. Whether it be not a Grand The Anonimâ—â— Author against Mr. Petyt p. 37. Error to affirm That there were no English Men in the Common Council of the whole Kingdom OVr Government saith the Learned In his Argument for the Bishops Right in judging in Capital Causes in Parliament Postscript p. 2. and most judicious Mr. Hunt by a King and Estates of Parliament is as ancient as any thing can be remembred of the Nation The attempt of altering it in all Ages accounted Treason and the punishment thereof reserved to the Parliament by 25. Ed. 3. The conservancy of the Government being not safely to be ledged any where but with the Government it self Offences of this Kind not pardonable by the King because it is not in his Power to change it This is Our Government and thus it is established and for Ages and immemorial Time hath thus continued a long succession of Kings have recognized it to be such This too perhaps will be granted Sir in some sence that for a long Series and Tract of Time the Government hath been so but the main pinch and stress of your Question as I apprehend it is this Whether after William the Conqueror had setled himself as well as he could on the English Throne he did admit any of the English to fit in the Great Council of the Nation and to Advise and Consult de arduis Vrgentibus negotiis Regni And I hope this I shall make plain and evident to you That the Grand Court of Parliament was in substance the same that it was before the coming in of this Conqueror and that there were English Men Members of it in the Time of the Conqueror 'T is not to be denied but that the same Courts that were in the Saxon Time for administration of Justice continued after William the first was made King and the Footsteps of them remain yet to this day I shall mention a few and so come to the main Point in Argument 1. As it was their Wisdom to preserve 1. County Courts LL. Hen. 1. c. 6 apud Lambard fol. 180. the Ancient Land-marks so was it likewise both their Wisdom and their Care to continue their due Privileges and Interests Their County Courts were still kept up and every County had its Court and every Court its wonted Jurisdiction no complaint LL. Guil. â— 42 fol. 168. must be to the King's Court if Right might be done in the County no Distress must be taken but by Warrant from the County and that must be after complaint thrice made The LL. Guil. c. 64. County Court must be called as our Ancestors have appointed such as will not come as they ought shall be first summoned and in case of default distrained at the fourth default Reddatur de rebus hujus hominis quod calumpniatum est quod dicitur Ceargel insuper Regis forisfactura that is The Complainant shall be satisfied out of the Distresses so taken and the King also for his Fine These are the express Laws of the Conqueror's own establishment The last of which also was confirmed by another express Law saving that he would allow but of two Summons and two Distresses before Execution I shall give you a memorable case to prove the continuance of this Court. Odo the Conqueror's half Brother Selden ' s Titles of Honour 2d Part c. 5 f. 581 â— Eadmer His Nov. l. 1. p. 9 videsis notas ad eundem p. 197. de placito apud Pinendenem inter Lansrancum Archiepiscopum Odonem Bajocensâ—m Episcopum was by him made Earl of Kent and therewith had the Gift of a large Territory in Kent and taking advantage of the King's displeasure at Stigand the Arch-bishop of Canterbury possessed himself by Disseisin of divers Lands and Tenements belonging to that See. Lanfrank the succeeding Arch-bishop being informed hereof petitioned to the King that Iustice might be done him secundum Legem Terrae and the King sends forth a
Writ to summon a County Court The Debate lasted three days before the Freemen of the County of Kent in the presence of many chief Men Bishops and Lords and others skilful in the Laws and the Iudgment passed for the Arch-bishop Lanfrank upon the Votes of the Freemen This County Court was holden by special Summons and not by adjournment as was allowable by the Saxon Law upon special occasions And this Suit was originally begun and had its final determination in the County Court. And the County Courts in those days were of so great esteem that two of the greatest Peers of the Realm one a Norman the other an Italian did cast a Title in fifteen Mannors two Lordships with many Liberties upon the Votes of the English Freeholders in a County Court and that the Sentence was allowed and commended by the King and submitted to by all But 2. The Hundred Courts were still 2. Hundred Courts continued and they were of two sorts The first whereof was holden twice a Year and all the Free-holders within the Hundred were bound to appear for the service of their Fees and was the Sheriff's Court and such appearances were called the Sheriffs Turnes where it belonged to Sheriffs to enquire of all Personal Offences and of all their Circumstances done within those Hundreds The other was the more ordinary Court belonging to the Lord of the Hundred to whom also belonged the Fines in cases there concerned This Court was to be held once in each Month and no suit to be begun in the King's Court that regularly ought to begin in the Hundred No Distringas to issue forth till three demands made in the Hundred And three Distresses then to issue forth and if upon the fourth the Party appear not execution then to be by Sale of the Distress and the Complainant to receive satisfaction 3. And so likewise were the Court Barons c. continued and the Lords held Pleas either in their own Persons or by their Stewards But not to forget Sir your Question I shall now shew you what the Soveraign Court of Parliament was and whom it consisted of in the Saxon Times and for this I think it will be needless to give you any more than one Instance which as by the way it does impreguably assert That the Commons of England were an Essential and Constituent Part of the Saxon General Councils so doth it I think fully and clearly refute and The Anoâ—imous 〈…〉 p. 20. â—n the Margin baffle that novel Erroneous Notion viz. That there are no Commons to be found in the Saxon great Councils Idem p. 13. 14. nor any thing that tends towards the proof of the Commons of those Times to have had any share in making Laws in those Councils The memorable Instance is the mighty Law of Tythes which was made and ordained A Rege Baronibus Populo Laâ—â—â—â—â—â— â—â—â—priscis 〈◊〉 Legiâ—us 〈◊〉 fol. â—39 Spelm. 〈◊〉 Tom. 1. 〈◊〉 â—â— By the King his Barons and his People Now William the First in that little time of Rest he had from Forreign Wars with the French King and his Neighbouring Princes to Normandy did apply both it and himself in the setling of Laws here which was done not ex plenitudine Regiae Potestatis no nor by the Norman Barons co-operating with that Power but by the joint Advice and unanimous Consent of the Grand Council of the Lords and wise Men of the Kingdom of England To prove which I shall produce the Testimony of Ancient Writers whom no Man of Historical understanding can modestly impeach of Partiality Faction or Interest in the Case in Question I. The first shall be taken out of the Lambard fol. 158. Chronicle of Litchfield which tells us That this William in the fourth Year of his Reign at London Consilio Baronum suorum by the Advice of his Barons caused a General Meeting or Assembly to be summoned Per universos Angliae Comitatus omnes Nobiles Sapientes suâ Lege eruditos ut eorum Leges consuetudines audiret i. e. of all the Nobility wise Men and such as were skilled in the Laws through all the Counties of England to hear what their Laws and Customs were And after this was done at the request of the English Community he did consent that they should be confirmed and so they were ratified and kept throughout all his Kingdom The words are Ad preces Communitatis Anglorum ex illo die Magna Authoritate veneratae per universum Regnum corroboratae conservatae sunt Leges Sancti Regis Edwardi prae caeteris Regni Legibus From this Testimony I think it will plainly appear 1. That the Barones sui here of William cannot absolutely exclude the English and only signify his Norman Barons upon those Authorities and Reasons I have already offered to prove That there were equally Barones Francigeni Angli nostri in his Time as you may see in my Argument under the third Question 2. That the King having by the Counsel of these his Barons summoned all the Nobility wise Men and those that were skilled in the Laws of the Land throughout all the Counties of England he then and there ratified and confirmed the Laws of St. Edward 3. And to prove that this general Assembly of the Nobility wise Men and able Lawyers were a PARLIAMENT I shall now give you the Judgment of Mr. Selden in his own words Selâ—en's Tit. of Hon. f. 580. which are these viz. That William the first in the fourth Year of his Reign or MLXX. which was the Year wherein he first brought the Bishops and Abbots under the Tenure of Barony Consilio Baronum suorum saith Hoveden p In Hen. 2. p. 343. E. Lond. out of a Collection of Laws written by Glanvill Fecit summoniri per universos Consulatus Angliae Anglos Nobiles Sapientes sua Lege eruditos ut eorum jura Consuetudines ab ipsis audiret And twelve were returned out of every County who shewed what the Customs of the Kingdom were which being written by the hands of Aldred Arch-bishop of York and Hugo Bishop of London were with the Assent of the same Barons for the most part confirmed in that Assembly which was a Parliament of that Time. And a little lower he saith This might be the same Parliament wherein the Controversy between Thomas Arch-bishop of York he was consecrated after the death of Aldred the same Year and to the same Year this Controversy is attributed and Vlstan Bishop of Worcester touching certain Possessions was determined So that from hence 't is easy to observe That 1. There were English Men in this Council by the words ANGLOS NOBILES c. And 2. Besides the Confirmation of the Laws of St. Edward here mentioned it may reasonably be supposed That the Law for bringing the Bishops and Abbots under the Tenure of Barony was first made in this Parliament And that 3. Likewise the great Case
Person of great Learning and Abilities in his Time collected out of a large Original Manuscript which I have seen of Sir Roger Owen a very great Antiquary that lived in the Time of King James and one who as appears by that Book was a Man not only of wonderful Knowledg and admirable Observation in the Records and Histories of his own Nation but also in those of Foreign Countries This was a Speech of the then Lord Whitlock in Novemb. 1650. upon the House's long and smart Debate touching the Act for putting all the Books of Law and the Process and Proceedings in Courts of Justice into the English Tongue In which Debate some spake in derogation and dishonour of the Laws of England For some vindication whereof and for satisfying some Mistakes he delivered his Opinion in the House to this effect It is now newly printed in Mr. Whitlock's MEMORIALS OF THE ENGLISH AFFAIRS c. and is here truly transcribed Mr. Speaker THe Question upon which your present Debate ariseth is of no small moment nor is it easily or speedily to be determined for it comprehends no less than a total Alteration of the Frame and Course of Proceedings of our Law which have been established and continued for so many Years I should not have troubled you with any of my weak Discourse but that I apprehend some Mistakes and dishonour to the Law of England if passed by without any Answer may be of ill consequence and having attended to hear them answered by others who are not pleased to do it I held my self the more engaged in the duty of my Profession to offer to your Judgment to which I shall always submit what I have met with and do suppose not to be impertinent for the rectifying of some Mistakes which are amongst us A worthy Gentleman was pleased to affirm with much confidence as he brought it in upon this Debate That the Laws of England were introduced by William the Conqueror as among other Arguments he asserted might appear by their being written in the French Tongue In his first Assertion that our Laws were introduced by William the Conqueror out of France I shall acknowledg that he hath several both Forreign and Domestick Authors whom he may follow therein The Forreign Authors are Jovius Aemilius Bodine Hottoman Dynothus Volateran Berault Berkley Choppinus Vspargensis Malines and Polidore who affirm this erròneous piece of Doctrine but the less to be regarded from them because they were strangers to our Laws and took up upon trust what they published in this Point Of our own Country-men they have Paris Malmesbury Matthew Westminster Fox Cosins Twyne Heyward Milles Fulbeck Cowell Ridley Brown Speed Martyr and some others All of them affirm That the Laws of England were introduced by William the Conqueror But their Errors are refuted by Sir Roger Owen in his Manuscript who saith That Roger Wendover and Matthew Paris were the first Monks that hatched these addle Eggs. I shall endeavour to shew you That the Original of our Laws is not from the French that they were not introduced by William the Conqueror out of Normandy And I shall humbly offer to you my Answer to some of their Arguments who are of a contrary opinion Polydore Hist Angl. l. 9. affirmeth That William the Conqueror first appointed Sheriffs and Iustices of the Peace erected Tenures brought in Trials by twelve Men and several other Particulars of our Laws For Sheriffs their name Scire Reeve shews them to be of the Saxon Institution And our Histories mention the division of Shires by King Alphred but in truth it was much more ancient And it is apparent by our Books and Records some whereof are in the Hustings of London and in the Tower that the same things were in use here long before the Time of King Will. 1. Sir Roger Owen shews at large That Livery of Seisin Licenses or Fines for Alienation Daughters to inherit Trials by Iuries Abjurations Utlaries Coroners disposing of Lands by Will Eseheats Gaols Writs Wrecks Warranties Catalla Fellonum and many other parts of our Law and the Forms of our Parliaments themselves were here in being before the Time of Duke William Agreeing hereunto are many of our Historians and learned Antiquaries But it is objected That in the Grand Custumary of Normandy the Laws are almost all the same with ours of England and the form of their Parliaments the same with ours That the Writer of the Preface to that Book saith It contains only the Laws and Customs which were made by the Princes of Normandy by the Councel of their Prelats Earls Barons and other Wise Men which shews the forms of their Parliaments to be the same with ours and the Laws in that Book to be the proper Laws of Normandy and ours to be the same therefore they argue that our Laws were introduced from thence by William the Conqueror This will be fully answered if that Grand Custumary of Normandy was composed in our King Edw. 1. his Time as good Authors hold it was then it cannot be That our Laws or Parliaments could be derived from thence These Learned Men say That this Custumary was a meer Translation of our Law-Book Glanvill as the Book of Regia Majestas of the Laws of Scotland is and the like of the Laws of Burgundy They farther add That the first establishing of the Custumary of Normandy was in Hen. 1. his Time and afterwards again about the beginning of Edw. 2. his Time. If the Laws in the Custumary were introduced there from England it will then be granted that the Laws of England were not introduced here by William the Conqueror But I think it very clear that their Laws were brought to them out of England and then you will all agree to the conclusion Our King Hen. 1. conquered Normandy from his Brother Robert and was a Learned King as his Name Beauclerke testifies whom Ivo calls an especial Establisher of Iustice Sequerius relates That this King established the English Laws in Normandy Herewith do agree Gulielmus Brito Armoricus Rutclurius and other French Writers who mention also That the Laws in the Custumary of Normandy are the same with the Laws collected by our English King Edward the Confessor who was before the Conqueror An additional Testimony hereof is out of William de Alenso Revile who in his Comment upon the Custumary saith That all the Laws of Normandy came from the English Laws and Nation In the Custumary there is a Chapter of Nampes or Distresses and decreed That one should not bring his Action upon any Seisure but from the Time of the Coronation of King Richard and this must be our King Richard the first because no King of France was in that Time of that Name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sence are used in the Custumary That which puts it further out of scruple is That