to the King that Iustice might be done him secundum Legem Ierrae 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 Uotes 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 Uotes 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. Hundred Courts 2. The Hundred Courts were still 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 impregnably 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 bassle that novel Erroneous Notion The Anonimous Authâ—r p. 20. in the Margin 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 theâ— 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 Lambard de priscis Augl Legibus c. â— fol. 139 By the King his Barons and his People Spelm. Concil Tom. 1. f. 621. 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 setting 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 1. The first shall be taken out of the Chronicle of Litchfield Lambard fol. 158. 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 sud 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 Selden's Tit. of Hon. f. 580. in his own words 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 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
Regis Edwardi In his second Charter dated Anno 15. of his Reign he saith in honour of King Edward who made me 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 Iohn 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 William Iornalensis 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 Iovius 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 Iersey 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
Iani Anglorum Facies Nova And his Ius Anglorum ab Antiquo You would likewise I suppose be extreamly pleased in the perusal of another Learned and Modest Book written by an Anonymous Anthor entituled Patriarcha non Monarcha Authors for whose Names Posterity will have a greater respect than we at present have and that for their discovery of Truth and refuting so many Vulgar Errors I am SIR Your most Faithful Servant c. FINIS The Appendix ABbas de Middleton tenet in Capite de Domino Rege Mannerium de Middleton c. ex Feoffâ—menti Regis AEthelstani nullum servitium fecit nisi Orationes In Rotulo de Inquisitionibus Dominicorum Dorseâ—shire Anâ— 4to R. H. Fil. R. I. Here we see that King AEthelstan who reigned above 740 Years agoe infeoffed the Abbey of Middleton of the Mannor of Middleton and that by virtue thereof the Abbot held it in Capite 4. H. 3. and did no Service for it but only to pray for the Souls of him and other succeeding Kings and all this you see found by Inquisition in the Fourth Year of Hen. 3. Rot. Cartar 19. H. 6. Nu. 16. m. 27. per Inspex Pro Decano Capitulo Sancti Martini Magni London per Inspeximus Inspeximus Cartam quam celebris Memoriae Dominus Willielmus quondam Rex Angl. progenitor ' nostri fecit Deo Ecclesiae Sancti Martini Magni London in hec verba QUia inter multa bona opera quae fideles Christi pro animarum suarum salute operantur hoc precipun estimatur tenetur Quod institution edification Sanctae Matris Eccte devota mente impenditur in qua suorum Dei supplicationibus peccata a pio Deo diluuntur quod Moises in mystici Tabernaculi constructione pmonstravit quod etiam Salomonis industria pfiguravit dum Templum Dno Artificiosum honorabile edificaret suturam significans Eccleam summo a fidelibus debere honore decorari quorum vidlt exemplo in nomine Dm nri Iesu Christi Ego Willus Dei dispositione consanguinitatis haereditate Anglorum Basileus Normannorumque Dux Rector eujusdam fidelis mei Ingelrici scilicet petitioni acquiescens Archiepiscoporum Episcoporum Abbatuum Comitum Vniversorum procerum meorum Sacro Consilio parens omnes possessiones terrarum quas tempore venerabilis ac dilectissimi cognati predecessoris mei Regis Edwardi Idem Ingelricus acquisierat ê™ ipsius insignissimi Regis Animae Salute necnon peccatorum meorum Remissione concedo Regia auctoritate imppm corroboro confirmo Deo Eccle Beati Martini quam infra muros London sitam pfatus Ingelricus Erardus Frat ejus de propriis suis Redditibus in delictorum suorum Remediun honorabiliter ad Dei laudem Canonicalem Regulam imppm servand tenend construxerunt Sunt igitur haec terrarum nomina c. Et si quas alias libtates vel consuetudines aliqua Ecclearum Regni mei Angl meliores het si quis vero hoc in aliud quam concessimus transferre psumpferit cum Juda Proditore Dei hâ—eâ—edibas luat penas Scripta est haec Chartula An ab Incarnatione Dm M. LX. VIII scilicet secundo Anno Regni mei pacta vero est haec Donatio die Nataliâ— Dm postmodum in die Pentecost confirmat quando Matil conjux mea in Basilica Sancti Petri Westm in Reginam divino nutu est consecrata c. Ego Willus Rex Anglorum Dux Normannorum sub Sigillo Sancte ✚ quas indeclinabiliter consensi atque ✚ rol oravi Ego Matil Regina consensum prebui Ego Ricus Regis Fil annui Ego Stigandus Archiepiscopus subscripsi Ego Aldredus Archiepiscopus confirmavi Ego Willus Lond Episcopus infra cujus muros pfatum Monasterium situm est signaculo Sancte Crucis subarravi libtatem omnimodam quantumcumque mee ê‘tinet possibilitati concessi Ego Odo Baiocensis Episcopus concessi Ego Hugo Luxoniensis Episcopus intersui Ego Goiffridus Episcopus corroboravi Ego Hermannus Episcopus concessi Ego Leouricus Episcopus concessi Ego Giso Episcopus concessi Ego Edwinus Abbas Ego Wolwaldus Abbas Ego Baldwinus Abbas Ego Agelsinus Abbas Ego Turstinus Abbas Ego Brand Abbas Ego Alswinus Abbas Ego Sithricus Abbas Ego Wills Fil Osbti Comes Ego Robtus Frat Regis Comes Ego Edwinus Comes Ego Robtus Comes Ego Marchere Comes Ego Waldeof Comes Ego Rogerus de Monte Goverii Comes Ego Ricus Fil Gislebti Princeps Ego Wills Malet Princeps Ego Arfastus Regis Cancellarius Ego Michael Regis Capellanus Ego Gislbtus Capellanus Ego Osbinus Capellanus Ego Wills Capellanus Ego Thomas Capellanus Ego Bernardus Capellanus Ego Walterus Capellanus Ego Robtus Capellanus Ego Johes Sancte Romane Ecclie Cardinalis Presbit per Gallias Angl concedente Papa Alexandro vices Apostolicas gerens huic constitutioni interfui quantum Aposto ✚ lice Sedi ê‘tinuit libtatem Ecclie psenti Signo confirmavi Ego Peâ—rus Sancte Romane Ecclie similit Cardinalis Presbit Cancellarius ab eodem Papa in Angl ele ✚ gatus huic Constitutioni acquiescens propria Manu subscripsi I give you this Charter Sir as a further Proof and Evidence for me in these Particulars viz. 1. You may observe by these words Consanguinitatis haereditate Anglorum Basileus that here King William made an absolute disclaimer of Conquest in the second Year of his Reign and only insisted on what he knew full well was his surer hold his claim by Hereditary Right 2. And this is so much the more considerable as it was done in his Great Council of Arch-bishops Bishops Abbots Earls Vniversorum procerum suorum a word of a large signification as well in Historians as in Ancient Records for under the word Proceres were comprehended Principes Civium vel Civitatis And the former Instances I have given you of other General Councils and the Parts thereof in this King's Reign fully agree with this Interpretation 3. The Claim and Protestation of the Commons made the Parl. 2d H. 5. Rot. Parl. 2. H. 5. Pars secunda N. 10. which says That so as hit hath ever be their Liberte and Freedom that thar should no Statute ne Law be made of lasse then they yaffe thereto their assent considering that the Commune of your Lond the which that is and ever hath be a Membre of your Parliament been as well Assentirs as Petitioners And which was ratified and confirmed by the King and Lords and so became an Act of Parliament was but an Affirmation and Declaration of the Ancient Law of the Land And the same Right cannot be denied by any Man to the Lords 4. And that he confirmed as the Custom of succeeding Kings have done to this day all the Possessions of those Lands to the Church of St. Martins le Grand which they had in the Time of EDWARD the CONFESSOR Now if this fond Notion of William's
Absolute Conquest be true then either the Arch-bishops Bishops Abbots Priors Earls Barons and Commons in Parl. 15. R. 2. knew it or they 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 sâ—it estoise ausi frank en sa Regalie Liberte Dignite Royale en son temps come ascuns de cest Noble Progenitors Rot. Parl. 15. R. 2. N. 13. Roys d' Engâ— furent en lour temps nient contresteant ascun Estatut on 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 Prelâ—tes Seigneures Temporels prierent en mesine le manere sur ce nostre Seigneur ledit Roy mercia les dits Seigneurs Communes de la grant tendresse affection quâ—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 Arbiâ—rary 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 The Anonymus Author against Mr. Petyt p. 43. But that the 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 Minds of the Lords and Commons in 15. R. 2. Ras. Stat. 15 R. 2. f. 161. not only by the Laws made then in that Parliament but by those in the next Parliament held the next Year after Id. 16. R. 2. fo 163. The Commons granted to the King That pur la grant Affiance Affection and Assurance for the great Trust Rot. Parl. 16 R. 2. N. 8. 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 sin quils purront alors par bon avisement agreer si Dieu plest a yâ—elles 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 Uâ—urpations 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 bearty 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
of the Realm This Law of the Realm Cited in White 's Sacred Laws p. 69. or Land was looked upon in the judgment of these Parliaments as * 27. E. 1. the Law of Ancient Time †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 Iure Hereditario by Right of Inheritance And for the proof of this be pleased to accept of these ensuing Instances 1. In Nomine Patris Carta Antiqua litera D. N. 4. Filii Spiritus Sancti Amen Ego Willielmus Dei Gratia Rex Anglorum Haereditario Iure Factus 2. In Nomine Patris Carta 4. E. 4. m. 27. per Inspex Filii Spiritus Sancti Amen Ego Willielmus Rex Anglorum Haereditario Iure Factus 3. In nomine Sanctae individuae Trinitatis Monast. Anglican Vol. 1. fol. 317. Ego Willielmus Dei Gratia Rex Anglorum notum facio omnibus tam posteris quam praesentibus Archiepiscopis Episcopis Abbatibus Comitibus Baronibus omnibus â—idelibus Francis Anglis Quod cum in Angliam venissem in sinibus Hasting cum excercitu applicuisâ—em contra hostes meos qui mihi Regnum Angliae injustè conabatur auferre 4. In ore gladii saith William the First 's Charter Carta Westmper Inspex 1. E. 4. parte septima m. 26. Mr. Seld. Review p. 483. 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 Carta Regis Willielmi Rusi vide Monast. Anglican Vol. 1. fol. 352. Willielmo 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 omnia 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 Trinitatis Ex Hist. Eliensis Eccles. M. S. in Bibl. Bodleana inter Codices Cant. I. 58. lib. 3 fol 2. a. Monast. Anglican Vol 1. fol. 95. 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 Iure successit in Regnum c. 7. Again Monast. Anglican Vol. 2. fol 845. Ego Henricus Dei Gratia 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 not such an absolute Uictory 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 all the English Laws Quest. 2. and changed the whole frame and Constitution of the Government ANd doubtless not for as my Lord Coke saith Lord Coke's Preface to his 8th Report The Grounds of our Common Laws at this day are beyond the Memory or Register of any beginning Ex vitâ Abbatis Sancti Albani and the same which the Norman 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 the King granted to the whole People of England after the Conquest of the Land â—elden ad Eadmerum fol. 173. These were those which the Kingâ— Edward his Cousin held before him Ce sont les Leis les Custumes que li Reis William grantut a tut le Peuple de Engleterre apres le Conquest de la Terre Ice les meâ—smes que le Reis Edward sun Cosin tint devant luy 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 Saxon Laws that he found when he came to govern this Kingdom nor any setting up of new ones in their stead No so far was he from any such Designs of introducing new Laws which must needs be then the absolute Results of Arbitrary Will and Pleasure to shew the sad and calamitous Effects of an entire Conquest to the overthrow of those so firmly established already that you see he gives his Confirmation to King Edward's Laws which indeed generally speaking were but a Collection of those the Historian calls Bonas Leges ab antiquis regiâ—â—us latas Malmesb. de Gest. Regn. Angl. lib. 2. fo 42. l. 21. non quod ille statuerit sed quod observaverit not so much the Laws of his own making as those he caused to be strictly observed and put in execution From the Title of his Laws proceed we 2. To the Confirmation it self and here I shall acquaint you with the manner of it in all its necessary Particulars This William the First with his French and Normans putting many hardships upon the English which occasioned great Disorders and Convulsions in the State several of the Saxons chief Nobility betook themselves to Arms for the sake of their Avitae Consuetudines to which they bore an immutable and an immortal Love and which they feared some were endeavouring to take away and change them though on the other hand they were obstinately resolved never to part from them Seld. Tit. of Hon. fol. 523. for they had à Majoribus didicisse aut Libertatem aut Mortem and they would rather undergo the worst Calamities of a more cruel War than they would tamely quit and abandon those dear Laws and Customs to which they had so long been used and were so well acquainted with The King hereupon to keep the People in a greater observance of their Duty Ex lib. Monast. de Litchfield Co. 8. Rep. in Pref. and withal not forgetting the Oath he had taken at his Coronation caused twelve of the most discreet and wise Men in every Shire throughout all England to take an Oath before himself to deal sincerely and uprightly without turning either ad dextram out sinistram that is as my Lord Coke interprets it neither to flatter Prerogative or extend Priviledg and to declare and lay open the Constitutions of their Laws and Customs without concealing adding or in any sort varying from the Truth But finding William and his Norman Barons who were Norwegians by extraction were for introducing the Norwegian Laws Apud Lambard fol. 149. This the English thought a more killing blow than that of his Victory and therefore Vniversi Compatriotae qui Leges edixerant tristes affecti being all of them in a great Consternation they beseeched him that they might still retain Leges proprias their own Laws and enjoy Consuetudines Antiquas their Ancient Customs in which their Fathers lived ipsi in eis nati nutriti sunt quia durum Id. Ibid. valde foret sibi suscipere Leges ignotas judicare de eis quas nesciebant and themselves were born and bred up in because it would be very hard to receive Laws unknown and to judg of those things they understood not And when William denied they warmly reinforced their Requests and then conjured him per Animam Regis Edwardi by the Soul of King Edward qui sibi post diem suum concesserat Coronam Regnum cujus erant Leges that he would not impose a Yoke upon them which they were not able to bear and which would only gall their Necks and make them the more fretting and unruly King William finding there was no Remedy tho' he was long resolute at last in a Common Council of his Kingdom yields and by his Magna Charta the ground-work of all those that after followed he confirmed to them their Ancient Laws Apud Cl. Lambard fol. 158. ad praeces Communitatis Anglorum Blessing it with the Seal of Security and Wish of Eternity closing it up with this general Co. li. 8. in Pref. And we further Command That all Men keep and observe duly the Laws of King Edward rearing up the Frontispiece of his Gracious Work with his Glorious Stile Ex Libro MS. de legib antiq Willielmus Dei Gratia Rex Anglorum Dux Normannorum Omnibus hominibus suis Francis Anglicis Salutem Statuimus imprimis super omnia unum Deum per totum Regnum nostrum venerari unam fidem Christi semper inviolatam custodiri pacem securitatem concordiam judicium justitiam inter Anglos Normannos Francos Britones Walliae Cornubiae Pictos Scotos Albaniae similiter inter Insulanos Provincias Patrias quae pertinent ad Coronam dignitatem defensionem observationem honorem Regni nostri inter omnes nobis Subjectos per Vniversam Monarchiam Regni Britanniae firmiter inviolabiliter observari Ingulphus Secretary to William in Normandy and afterwards made Abbot of Crowland by him is an unexceptionable Witness to prove that the English Laws were then anew confirmed and he saith †Ex Ingulpho Abbate Crowlandense fol. 519. b. l. 37. I brought this time with me from London Attuli eadem vice mecum de Londoniis in meum Monasterium Leges aequissimi Regis Edwardi quas Dominus meus inclitus Rex Willielmus authenticas esse perpetuas per totum Regnum Angliae inviolabiliter tenendas sub poenis gravissimis proclamâret suis Justitiariis commendâret eodem idiomate quo editae sunt where he had been about the business of his House to my Monastery the Laws of the most just King Edward which my Lord William the renowned King of England had proclaimed authentick and perpetual all England over to be kept under most grievous Penalties and commended to his Justices in the same Tongue they were set forth And this Proclamation was not all to allay the Storms which perhaps the violation of these Laws had raised For the good of Peace saith an ancient Monk he swears upon all the Reliques of the Church of Saint Albane touching the Holy Gospel Abbot Fredrick ministring the Oath * Mat. Paris in vit Fretherici Abbatis S. Albani fol. 48. l. 39. the good and approved ancient Laws of the Realm Bonas approbatas antiquas Regni Leges quas Sancti Pii Angliae Reges ejus Antecessores maxime Rex Edwardus statuit inviolabiliter observare which the Holy and Pious Kings of England his Ancestors and especially King Edward set forth inviolably to keep Thus we see the Mighty Conqueror is himself conquered and solemnly renouncing all Arbitrary Will and Power submits his Will to be regulated and governed by Justice and the
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 aliquando 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 cognomenta 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 Conqueror And thus he writes in his Book dedicated to his present Majesty Duke William Sir Winst. Churchill's Divi Britannâ—ci fol. 189. better known to us 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 Id. fo 190. But 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
and reduce themselves back to this notorious Dilemma viz. either to live Uassals and Slaves under the English or else vertere solum return to Normandy from whence they came There is one thing more 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 Customs destroyed when as it is demonstrably manifest Sim. Dunelm An. 1088. fol. 214. Angli cum fideliter juvabant 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 The Anonimous Author against Mr. Petyr p. 43. That the 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 Guliel 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 Metwâ—nd and Measure 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 wise King Iames the People's security of Lands Livings and Priviledges were preserved and maintained and which also is * K. Charl. 1. Declaration to all his Loving 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 Sir Ric. Baker's Chronic. fol. 23. in his Chronicle 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 since whereupon the King Mr. Petyr's Ancient Right of the Commons of England asserted Pref. p. 24. 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 Spelm. Gloss. verbo Drenches p. 184. Edwinus 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 so 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 propâ—er quod idem Rex praecepit ut omnes illi qui sic tenuerunt se in pace in forma praedicta quod ipsi rehaborent omnes terras donationes suas adeo integrè in pace ut unquam habuerunt vel tenâ—erunt 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
Abbots under the Tenure of Barony was first made in this Parliament And that 3. Likewise the great Case 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 in favour of the Normans Catta Regis Willielm apud Lambard c. 54. fol. 170. 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 Auhlote â—â—d Anscote as Sir Henry Spelman Sir H. Spelm. Gloss. verbo Anhlote f. 31. informs us is vulgò Scot â— 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 his Election Gervas Dorobernens Act. Pont. Cant. fol. 1653. l. 5. 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 Rex mittens propter illum in Normanniam Relat. Willielm prim ad finem tract de Gavelkind à Syla Taylor p. 194. fecit eum venire in 〈◊〉 gliam eique Consensu Auxilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque Populi Angliae commisit ei Dorobernensem Ecclesiam III. There was another General Council or Parliament held at Westminster Ex Caâ—tulario Coenobii Westmonasteriensis in Biblioth Cotton sub effigie Faustinae A. 3. Dugdâ—l Orig. Juâ—idic sol 16. 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 diversis Provinciis Urbibus Provincia i.e. Comitatus Seld. Tit. Hon. fol. 273 Spelm. Gloss. â— it Provincia f. 471. ad Universalem Synodum pro causis cujuslibet Christianae Ecclesiae audiendis tractandis ad praescriptam Celeberrimam Synodum quod Westmonasterium dicitur Parliamentum Synodus magna nuncupatur Somneri Gloss. 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 tract andas 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 L L. Guilielm c. 55. to wit the English 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 Regia 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 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 Iames 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 Iustice 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 Iovius AEmilius Bodine Hottoman Dynothus Volateran Berault Berkley Choppinus Vspargensis Malines and Polidore who affirm this erroneous 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 Martyn 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 Tenâ—res 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. I. 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 Escheats 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
in Latin R. 2. H. 4. H. 5. and H. 6. used to write their Letters in French and some of our Pleadings are in French and in the Common Pleas to our Time But Sir our Law is Lex non Scripta I mean our Common Law and our Statutes Records and Books which are written in French are no Argument that therefore the Original of our Laws is from France but they were in being before any of the French Language was in our Laws Fortescue writes That the English kept their Accounts in French yet doubtless they had Accounts here and Revenues before the French Language was in use here My Lord Cook saith That the Conqueror taught the English the Norman Terms of Hawking Hunting and Gaming c. yet no doubt but that these Recreations were in use with us before his Time And tho' Duke William or any other of our Kings before or after his Time did bring in the French Tongue amongst us yet that is no Argument that he or they did change or introduce our Laws which undoubtedly were here long before those Times and some of them when the French Tongue was so much in use here were translated written and pleaded and recorded in the French Tongue yet remained the same Law still And from the great use of the French Tongue here it was That the Reporters of our Law-Cases and Judgments which were in those Times did write their Reports in French which was the pure French in that Time tho' mixt with some words of Art Those Terms of Art were taken many of them from the Saxon Tongue and may be seen by them yet used and the Reporters of later Times and our Students at this day use to take their Notes in French following the Old Reports which they had studied and the Old French which as in other Languages by time came to be varied I shall not deny but that some Monks in elder Times and some Clerks and Officers might have a Cunning for their private Honour and Profit to keep up a Mystery to have as much as they could of our Laws to be in a kind of Mystery to the Uulgar to be the less understood by them But the Councellors at Law and Iudges can have no advantage by it but perhaps it would be found that the Law being in English and generally more understood yet not sufficiently would occasion the more Suits And possibly there might be something of the like nature as to the Court Hand yet if the more Common Hands were used in our Law-writings they would be the more subject to change as the English and other Languages are but not the Latin Surely the French Tongue used in our Reports and Law-Books deserves not to be so enviously decried as it is by Polydore Aliot Daniel Hottoman Cowell and other Censurers But Mr. Speaker if I have been tedious I humbly ask your pardon and have the more hopes to obtain it from so many worthy English Gentlemen when that which I have said was chiefly in vindication of their own Native Laws unto which I hold my self the more obliged by the Duty of my Profession and I account it an honour to me to be a Lawyer As to the Debate and Matter of the Act now before you I have delivered no Opinion against it nor do I think it reasonable that the generality of the People of England should by an Implicit Faith depend upon the knowledg of others in that which concerns them most of all It was the Romish Policy to keep them in Ignorance of Matters pertaining to their Souls Health let them not be in Ignorance of Matters pertaining to their Bodies Estates and all their worldly Comfort It is not unreasonable that the Law should be in the Language which may best be understood by those whose Lives and Fortunes are subject to it and are to be governed by it Moses read all the Laws openly before the People in their Mother Tongue God directed him to write it and to expound it to the People in their own Native Language that what concerned their Lives Liberties and Estates might be made known unto them in their most perspiâ—uous way The Laws of the Eastern Nations were in their proper Tongue The Laws at Constantinople were in Greek at Rome in Latin in France Spain Germany Sweden Denmark and other Nations their Laws are published in their Native Idiom For your own Country there is no Man that can read the Saxon Character but may find the Laws of their Ancestors yet extant in the English Tongue Duke William himself commanded the Laws to be proclaimed in English that none might pretend ignorance of them It was the Judgment of the Parliament 36. Edw. 3. That Pleadings should be in English and in the Reigns of those Kings when our Statutes were enrolled in French and English yet then the Sheriffs in their several Counties were to proclaim them in English I shall conclude with a Complaint of what I have met with abroad from some Military Persons nothing but Scoffs and Invectives against our Law and Threats to take it away but the Law is above the reach of those Weapons which at one time or another will return upon those that use them Solid Arguments strong Reasons and Authorities are more fit for Confutation of any Error and Satisfaction of different Judgments When the Emperor took a Bishop in compleat Armour in a Battle he sent the Armour to the Pope with these words Haeccine sunt vestes Filii tui So may I say to those Gentlemen abroad as to their Railings Taunts and Threats against the Law Haeccine sunt Argumenta horum Antinomianorum They will be found of no force but recoiling Arms. Nor is it ingenious or prudent sor ENGLISH-MEN to deprave their Birth-right the Laws of their own Country Thus Sir have I impartially given you my Sentiments of UUilliam the first his Conquest which hath been so terribly and frightfully represented and published to the UUorld by the Ignorance Interest and Artifice of some Modern UUriters Thus have I as an English Man endeavoured to do my Country Justice and to support the true Honour both of our worthy Saxon Ancestors and of our excellent and famous Laws against Conquest and Slavery as also to justify the Ancient Parliamentary Right as well of Lords as Commons But yet for your fuller and clearer satisfaction in this so weighty a Point I shall refer you if you please to the Learned and Iudicious Discourses writ in some measure more particularly upon this Subject never yet sufficiently answered to my Conviction though I have industriously compared and considered all the pretended Answers and them together without the least of byass or prepossession and I heartily could wish others would do the like and that for TRUTH 's sake The Discourses are these viz. Mr. Selden 's Iani Anglorum Facies Altera Mr. Sylas Taylor 's History of Gavelkind Mr. Petyt's Rights of the Commons of England asserted And Mr. Attwood's
Argumentum Anti-Normannicum OR AN ARGUMENT PROVING From Ancient Histories and Records THAT William Duke of Normandy Made no absolute Conquest of England by the Sword in the sense of our Modern Writers Being an Answer to these four Questions VIZ. I. Whether William the First made an Absolute Conquest of this Nation at his first Entrance II. Whether he cancelled and abolished all the Confessor 's Laws III. Whether He divided all our Estates and Fortunes between himself and his Nobles IV. Whether it be not a grand Error to affirm That there were no English-men in the Common Council of the whole Kingdom London Printed by I. D. for Mat. Keinton Ionath Robinson Sam. Sprint 1682. 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 â—ight Hastings gave the NORMAN battel which proved fatal to him For he was as you may see * Harold slain slain between the NORMAN Long-Bows and ENGLISH Spears leaving the Duke VICTOR in the Field WILLIAM proud with this Success marches with all speed up to Berkhamstead near LONDON The D. oomes up to 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 the Arms but Duke WILLIAM and the ENGLISH soon came to an Agreement and the latter entred into solemn Compact to make him King Enters into Compact with the English to make him King Thereupon BRITANNIA holds forth to him the Scepter with one Hand Britan. gives him the Scepter And With the other shews him the excellent and most famous Laws of St. EDWARD And St. Edward's Laws to keep As also at the same Time a Noble Prelat tenders him the Coronation-Oath †A Bishop tenders 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 Whereupon he takes the Coronation-Oath The VVilliam took at his Coronation the sence of which take as follows This Scepter Fairest Queen I most thankfully receive Sacramentum Willielmi Seâ—â—oris Ante â—â—stare S. Petri Apostoli coram Clero Populo jurejurando Promisit se velle Sanctas Dei Ecclesias ac Rectores earum defendere necnon cunctom Populum sibi subjectum justè ac Regali providentia regere rectam Legem Statuere tenere rapinas in justaque judicia penitùs interdicere Hoveden pars Prior. fol. 258. l. 14. Exacto prius coram omni Populo jurejurando quod se modestè erga subjectos ageret aequo sure Anglos quo Francos tractaret Malmsb. lib. 3. fol. 154. b. l. 8. Rex pro bono pacis juravit super omnes Reliquias Ecclesiae Sancti Albani Tactisque Sacrosanctis â—vangeliâ—s 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. 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 Preragative-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 aâ—ter 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 Uictor 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
atque illi interdicebat ne ullam sponsionem daret praeter sponsionem illam quam deposuerat in Altari Christi quemadmodum Episcopus illi dictaret punctually to a Letter corresponds with that Writing which Dunstan the Arch-bishop delivered to our Lord the King at Kingston that very day of his Coronation and did then forbid the King that thenceforth he should make any other Oath than that which he had made at the Holy Altar or what the Bishop should dictate then unto him In the Name of the Holy Trinity In Nomine S. Trinitatis Ego tria promitto Populo Christiano meisque subditis I do promise three things to Christian People and my Subjects The Oath of the Saxon Kings at their Coronation The Oath which William the First took at his Coronation 1. ' That I will peaceably govern the Church of God and the People of my Kingdom ' 1. That he would defend the Churches of God and all their Pastors 1. Dei Ecclesiam ac Universum mei Imperii Populum Christianum vera pace fruiturum 2. ' That I will utterly interdict Rapines 2. Me RapiÌ„nam omnemque iniquitatem omnibus ordinibus interdicturum and all Injustice to all Orders of Men. ' 2. That he would govern all People that were his Subjects with Iustice and with that prudent care which became a good King 3. ' That I do promise 3. Me promissurum mandaturum in omnibus Judiciis Justitiam Misericordiam ut nobis omnibus proinsinita sua miseratione propitius sit Clemens ac Misericors Deus qui vivit regnat c. and will command That in all Judgments Justice and Mercy shall be mingled together to the end that God who is the Omnipotent Judg of the World and ruleth over all may be pleased out of his infinite Compassion to be propitiously good and merciful to us all ' 3. That he would both enact and himself keep right Law and to the utmost of his Power would interdict all Rapines and false Iudgments 4. And he added one Article more to the Oath than was in that of the Saxon Kings and it was extraordinarily necessary to be done rebus sic stantibus and that was Quod aequo jure Anglos Francos Tractaret That he would govern both the English and French by the same equality of Law without respect to either Christianus Rex qui haec observaverit sibi promerebitur honorem mundanum quinetiam illi Deus aeternus miserebitur tam in hac vita presenti quam in AEterna illa quae nunquam deficit ' That Christian King who shall observe these things shall deservedly acquire all earthly Honour moreover the everlasting Lord God shall take Compassion on him as well in this Life as that which is Eternal and Endless ' This Oath too he took at the Altar of St. Peter before ever he was Consecrated and the Clergie and Laity were equally Parties and Witnesses After which he was Anointed and Crowned by Aldred Archbishop of York for Stigand the Arch-bishop of Canterbury was not admitted to that Office because of some defect in his Investiture But if he shall do contrary to what he promised God Ac si irritum fecerit quod Deo erat promissum tum deinceps egregie verget in pejus mox quidem in populo suo omne demum quicquid sit convertetur in pessimum thenceforth he shall daily decline and his Subjects shall fail in their Allegiance and every thing will be turned from bad to stark nought unless in time he reforms the Errors of his Ways Meditate often with thy self Hoc tecum saepe meditare quod debeas in Dei Judicio gregem proferre sistere in quem Pastor in hac vita constitutus es prospice quomodo conservasti quod Christus Sanguine suo olim redemit that thou shalt one day bring thy whole Flock before the Tribunal of God whose Shepherd thou art here ordained and therefore often consider with thy self and look forward how thou hast kept those whom Christ with his own dear Blood hath formerly redeemed It is the Office of an Anointed King to judg no Man unrighteously Regis Consecrati jus est male judicare neminem Viduas Orphanos Perigrinos tueri conservare latrocinia prohibere scortatores corrigere incestuosos dis jungere ac funditus extirpare veneficas incantatores delâ—re Parricidas perjuros terris exterminare pauperes eleemosynis fublevare to protect Widdows Orphans and Strangers to interdict Robberies to punish Whoredoms to separate and utterly to extirpate all incestuous Persons to abolish and cut off Witches and Enchanters to banish Parricides and perjured Persons out of his Dominions to comfort the Poor with Almes To call Grave Senes Prudentes Sobrios sibi in consiliarios ascribeâ—e Sober and wise Men to counsel and advise him To chuse just and good Men for his Ministers and Officers Justos sibi in Ministros constituere quia quicquid â—psi injustum fecerint ejus Autoritate universi illius rationem tenetur ille reddere in die Judicii because whatsoever illegal Actions they shall commit under his Authority he must at the Day of Judgment give an account for And the reason of all this is evident both from the Laws of God and Man the King is Debitor Iustitiae to all his People to rule and govern them by Law Exact Collect. p. 28 29. Which as his late Majesty said is the Inheritance of every Subject and the only security he can have for his Life and Estate Bract. lib. 3. fol. 107. a. b. Ad hoc autem creatus est electus writes Bracton ut Iustitiam faciat Vniversis and that dum facit justitiam Vicarius est Regis aeterni Minister autem Diaboli dum declinet ad injuriam Henry the Third upon a Charter granted by his Father King Iohn and confirmed by himself declares Qui vero id quod dictus Pater noster eis per Chartam suam concessit Rot. Claus. 9. H. 3. pars prima m. 18. nos postmodum annuimus infringere nequaquam volumus sicut nec de jure debemus much less a Coronation Oath Edward the first tells the Pope upon a Message sent him That he could not answer without consulting his Parliament and gives this for his Reason Iurejurando in Coronatione nostra prestito sumus adstricti Rot. Claus. 3. E. 1. m. 9. in Schedula quod Iura Regni nostri servabimus illibata nec aliquid quod Diadema tangat Regni ejusdem absque ipsorum requisito consilio faciemus Observe lastly that Edward the Third that famous Conqueror of two Kings the Scottish and French hath left recorded to Posterity a definitive Sentence and Judgment in this Point as an indisputable rule of Right and Justice That he ought Pulton Stat. 25. E. 3. f. 150. and was bound by his Coronation Oath to keep the Law
ancient Rights of the English Men. Besides that the Laws that were continued and confirmed were the old Saxon Laws and the Additional Laws were made for the Benefit and Advantage of the English not Normans And those 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 Mat. Paris fol. 941. hath it thus Rex Angliae ex Conquestu dicitur tamen quod beatus Edwardus eo quòd haerede caruit Regnum legavit Willielmo Bastardo Duci Normannorum 2. Sir Henry Spelman Spelm. Gloss. tit Conquestus fol. 145. in his Glossary says Willielmus Primus Conquestor dicitur quia Angliam conquisivit id est acquisivit purchased non quod subegit not that he subdued it 3. Sir Iohn Skene Skene p. 39. Clark of the Register Council and Rolls to King Iames 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. Mr. Skene de Verbórum signific verâ—o Conquestus Conquestus dicitur ratione 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. Iohan. 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 de omnium Anglorum terris ad voluntatem suam pro libitu in modum absolutae dominationis disposuisse Apud Lambardum in Prefac 1550 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 a totius Anglie Primatibus ad Regale Culmen electus Abâ—ev Chron. Rad. de dicâ—ro 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 MS. ex Bib. Domini Wild defuncti Heraldus strenuus Dux Conquestor 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 W. 1. Rex Anglorum c. and sometimes Willielmus Cognomento Bastardus Rex Anglorum c. 2. Willielmus W. 2. Rufus Rex Anglorum c. and sometimes Willielmus Dei Gratia Rex Anglorum c. 3. Henricus H. 1. Rex Anglorum c. and sometimes Henricus Willielmi Magni Regis Filius 4. Stephanus Steph. Rex Anglorum c. and sometimes Stephanus Dei Gratia Rex Anglorum c. 5. Henricus H. 2. omitted Dei Gratia and used this Stile Henricus Rex Angliae c. and sometimes Henricus Filius Imperatricis Matildae Rex Angliae c. 6. Richardus R. 1. Rex Angliae c. 7. Johannes Iohn Rex Angliae c. and added this Dominus Hiberniae 8. Henricus H. 3. Filius Johannis Rex Angliae c. 9. Edwardus E. 1. Rex Angliae c. 10. Edwardus E. 2. Filius Edwardi primi 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
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 From this Authority Sir I think it is very plain and obvious That I. Here was no Absolute Conquest II. That neither were all the Saxon Laws cancelled and abolished by the coming in of this Conqueror I. That here was no Absolute Conquest because 1. Tho' here was an invading England yet it was upon pretence of a Donation of the Soveraignty from Edward the Confessor confirmed by his last Will and that in the presence of most of the English Nobility And so it was only an endeavour to get his own upon the Claim of an alledged just Title which shewed he had at least more reason to demand than Harold who at best was an Usurper to detain the Crown And so the Quarrel to be more Personal than National 2. The Conquest could not be Absolute for tho' he was by a happy success over Harold possessor of the English Throne yet saith my Author The Nation continued nescia vinci so that whenever he was Tyrannical and Arbitrary they were continually vexing him with their Revolts 3. This Conquest could not be absolute because then the English must have been perfect Slaves and Vassals to his uncontroulable Beck but alas here Sir Winston tells you the Norman Conqueror could find them no such easy Beasts of Burthen their Necks would not bear the Yokes of his Severity for they were several times up in Arms against him and that after they had submitted to him so that at most this could be but a submission upon terms 4. He was so far from being in love with the gawdy name of Conqueror that when some that designed to preoccupate the Grace of Servitude gave him that ungrateful Title he esteemed it the greatest misfortune his good Fortune had brought upon him And 5. The Conquest surely could not be absolute for then it would have been very idle and ridiculous for any one to say what Sir Winston no doubt but upon good and mature consideration hath thought fit to say of him that if any thing look'd like absolute and hereby you may plainly take notice that he seems to wonder how any Man can pretend to make him an absolute Conqueror when he could hardly find so much as any thing to look like it But II. I shall observe to you that neither were all the Saxon Laws cancelled and abolished by the coming in of this Conqueror 1. If King William might have done despotically whatsoever he had a mind to then what necessity was there for such a moderation of his Mind as the Author hints to us 2. Because he found the People were not to be galled with any New he chose rather but it was a choice upon Necessity to bind them stricter to him by the Old Laws that is in plain down-right English they would not yield to him nor to his Government unless he resolved to circumscribe his ruling of them within the bounds of the good Old Laws in which they were born and bred and make his French and Normans come over and buckle to them 3. He suffered himself to be so far conquered by them as to let them have their Old Laws and it was with a kind of good satisfaction too For 4. The Book tells you He contentedly bound himself up by those which they called St. Edward's Laws And was there not do ye think very good Reason for his so doing when thereby 5. He understood at length that it was a guarding his Prerogative to keep within that Cittadel of the Burrough Law 6. And lastly We cannot rationally think he would after he had thereby throughly looked into them cancel and abolish them since those Laws were such as it is said he himself could not desire to introduce a better I hope Sir all these Deductions arise naturally from the words themselves without any force or strain upon the sence and what I have said may be sufficient to convince you that King William still kept to the Saxon Laws and did not change the whole Frame and Constitution of the Government as you say is very strenuously and with heat asserted by several of our Modern Authors I shall yet make bold with your Patience Sir and shew you what Florentius Wigorniensis a famous Historian in King Stephen's Time and Brompton from him say upon this Point and so conclude my Argument Henricus primus omnes malas consuetudines injustas exactiones quibus Regnum Angliae injustè opprimebatur abstulit â—oren Wig. fol. 650. pacem firmam in toto Regno suo posuit teneri praecepit Legem Regis Edwardi omnibus in commune reddidit cum illis emendationibus quibus Pater suus illam emendavit Brompton's words are the same In Hen. 1. fol. 997 998. and therefore I shall content my self with only referring you to the Book without repeating them to you And Sir from hence we may learn 1. That this King Henry's Father William the First was so far from cancelling and abolishing K. Edward's Laws that he made them to be the Common standing Laws of the Land to be equally and inviolably observed as well by the Normans as the English for he says omnibus cam in commune reddidit unless you will understand the word Omnibus to be a particular Universal and so only to include the Normans And if so then it follows likewise That instead of the Normans giving to the English their Laws the English Laws were imposed upon the Normans 2. And whereas there were 't is confest some Additional Laws made in his Time yet you may plainly observe hence that they were grounded upon and but a better Improvement and Melioration of the Confessor's Laws and they were for the Sake Benefit and Advantage of the English as you will find hereafter 3. Henry the First Son to this Conqueror William took away omnes malas consuetudines injustas exactiones c. by which England had been sorely oppressed under his Brother William Rufus and restored the English to their former Rights and Liberties and he renewed and confirmed the Ancient Saxon Laws as his Father had done before him as it is well noted in the continuation of the History of Bede Bede Histor. lib. 3. cap. 30. fol. 347. In Concilio peritorum proborum virorum Regni Angliae 4. But if there had been no Freemen but the Normans if the Normans had all the Estates of the English given them if there were none but Normans in the Common Councils of the Kingdom how is it possible to be supposed by any that will allow themselves the free use of their Reason that Henry the First would ever make such a Grant or if he did that the Normans would ever submit to it or what is much more unlikely give their consent to out themselves of all their new-gotten Possessions
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 Third and give you his judicious Assertion of this Argument tho' it be cited before in that of Mr. Selden because it was agreed on as a main positive Rule of Law and they are these Le Conqueror saith he ne vient pas pour ouster eux Iohannes Shardelowe unus Justic. de Banco Rot. Pat. 16. E. 3. Pars 1. m. 2. in Dugdales Chronica Series annexed to his Origines Juridiciales fol. 44. qui avoient droiturell possession mes de ouster eux que de lour tort avoient occupie ascun terre en desheritance del Roy son Coronne The Conqueror came not to oust those who had a Right Possession but to dispossess those who of their own wrong had enjoyed any Land to the disherison of the King and his Crown What shall we think after all this That notwithstanding the English who had not been in Arms against William had no Estates or Fortunes left but all was divided between the King and his Normans Surely no but just the contrary that they did enjoy them in as full peaceable and quiet a manner as ever they did before he came to be this high and mighty Conqueror But again let me give you Sir another Instance to inforce the Truth of this Argument In the 14. Rich. 2. some 290 Years ago there happened a memorable Suit between the King and the Prior of Coventry Placita coram Rege Hill Anno â—14 R. 2. Rot. 50. War vid. Dodsworth Dugdales Monastic Anglican Vol. 1. fol. 305. Col. 1. in the King's Bench the King demanding Annuam Pensionem pro uno Clericorum Regis as holding de Domino Rege per Baroniam The Prior pleads that he held Prioratum praedictum upon the foundation of Leofric quondam Comitis Cestriae founded in the Time Sancti Edwardi Regis Angliae and produces the Charters in Court and then conveys the Title of Descent thus Ibidem recìtatur Charta ejusdem Regis Edwardi Jus Anglorriâ—i ab antiquo 〈◊〉 16. in the Addition c. quas Donationes Concessiones diversi alii Reges confirmà verunt dicit quod postea per processuâ— temporis nomen Abbatiae praedictae divertebatur in nomen Prioratus eo quod Leof winus ad tunc Abbas ibidem creatus fuit in Episcopum Cestriae ordinavit per Assensum Monachorum ibidem quod Abbatiaâ— praedicta ex tunâ— foret Prioratus 〈◊〉 quod Superiores ejusdem Ecclesiae forent Priores successivè in perpetuum dicit quod de ipso Leofrico quia obiit sinâ— Haerede de corpore suo descendente Advocatio Ecclesiae praedictae tempore Willielm ' Conquest Angliae cuidam Hugoni Comiti Cestriae ut Consanguineo haeredi ipsius Leofrici viz. Filio Erminilde sororis ejusdem Leofrici de ipso Hugone cuidam Richardo ut Filio haeredi Not. This is the Hugh to whom it is imagined by some that William gave all the Lands of the County of Chester de ipso Richardo cuidam Ranulpho ut Consanguineo haeredi viz. Filio Matildis Sororis praedicti Hugonis de ipso Ranulpho cuidam Ranulpho ut Filio Haeredi de 〈◊〉 so Ranulpho Filio Ranulphi quia obiiâ— sine Haerede de corpore suo descendente Advocatio praedicta simul cum Comitatu Cestriae Huntingdon aliis diversis Castris Maneriis terris tenementis cum pertinentiis in Anglia Wallia quibusdam Matildae Mabilliae Ceciliae Margeriae ut Sororibus Haeredibus praedicti Ranulphi inter quas propertia facta fuit de praedictis Comitatibus Advocationibus Castris Maneriis Terris Tenementis cum pertinentiis supradictis Et praedicta Advocatio simul cum toto praedicto Comitatu Cestriae cum pertinentiis allocata fuit praedictae Matilde proâ—proparte sua in Allocationem diversorum aliorum Castrorum Manneriorum Terrarum Tenementorum cum pertinentiis praedictis Mabilliae Ceciliae Margeriae separatim allocatorum de ipsa Matilda descendebant praedicta Advocatio simul cum praedicto Comitatu Cestriae cum pertinentiis post propertiam praedictam cuidam Iohanni Scot ut Filio haeredi praedictae Matildae qui quidem Iohannes Scot Advocationem praedictam simul cum praedicto Comitatu Cestriae cnm Pertinentiis dedit Henrico quondam Regi Angliae Filio Regis Iohannis haeredibus suis in perpetuum c. Praedictus Prior sine die From this great Record Sir I think it is clear and evident 1. That Leofric was Earl of Chester in the Reign of Edward the Confessor and that he dying without Issue the Earldom of Chester and the Right of Advowson of the Priory of Coventry tempore Willielmi Conquestoris Angliae descended to Hugh Earl of Chester ut Consanguineo Haeredi ipsius Leofrict as being the Son of Erminelde Sister of Leofric and that from that Hugh descended Richard his Son and Heir and from Richard descended Ranulf as consanguineus haeres that is the Son of Maud Sister of Hugh and from that Ranulph another Ranulph his Son and Heir c. 2. Now if William when he came in made an absolute Conquest this Title had been impossible to have been maintained 3. It appears further That the Plea of the Prior was allowed for the Record saith Praedictus Prior sine die And the Advowson aforesaid simul cum Comitatu Cestriae Huntingdon aliis diversis Maneriis Terris Tenementis cum pertinentiis c. did descend And it is to be observed that Judgment being given upon solemn Debate and Tryal neither the Judges nor the King's Counsel so many hundred Years ago as in the Age of Richard the Second knew any thing of this new received Notion of an absolute Conquest And again 4. 'T is yet further observable that the Charter of Leofric and the Title of the Prior had been confirmed per diversos alios Reges who must certainly have greater knowledg of the Nature of William the First his Conquest or Government than any Man can pretend to in our Times But further Sir I will make bold with your Patience and give you some few Instances of the very many that I could out of Dooms-day Book to satisfy you that there were many Proprietors of English Men who had their Free-hold Estates upon Titles paramount to any of the Conqueror's Donation Those I shall take from that industrious and worthy Gentleman Mr. Attwood's Book intituled Ius Anglorum ab Antiquo Jus Anglorum ab Antiquo p. 80 81 83 87 89 90. where in his excellent History of the Conquest among others he hath these following Viz. Surrey 1. Hugo de Port was a very great Proprietor Pa. 8o He was not Tainns Regis as may be found under the Title Terra Hugonis de Port Many
Mannors he had and as appears in Hampshire he had at least two Mannors Cerdeford and Eschetune from his Ancestors before William's Entrance And even this is a ground to believe he was a great Man that he had a Sir-name or Addition Because if we believe the Great Antiquary Camb. Rem p. 136. Mr. Cambden Sir-names were not setled among the Common People fully till about the Time of Edw. 2. 2. The Earl of Moreton a very powerful Prince â—pse Comes â—enuit Estreham T.R.E. as I may call him held Estreham in Tenrige Hundred in the Time of King Edward He enjoyed several other great Possessions of the Gift of King William I doubt not indeed but he was Norman born yet he was here before the entrance of the Norman Duke and might not improbably be in Favour with King Edward the Confessor Camb. Rem â— p. 136. who was all Frenchified He to be sure had some Lands within the Kingdom of England which he enjoyed not from William's Division Pag. 176. Hampshire 3. Ralph Mortimer held several Possessions some of which he had Iure Haereditario from before the Reputed Conquest Ipse Radulphus tenet Ordie This Mannor T.R.E. extra Ecclesiam emptum fuit eo pacto conventione ut post tertium haeredem cum omni pecunia Manerium Ecclesia Sancti Petri de Episcopatu recuperet nunc qui tenet Radulphus est tertius haeres Dorsetshire Dorsete 4. Ten Thains hold Chimedecome Ipsi tenuerunt T. R. E. pro. 1. Manerio Omnes qui has terras tenuerunt T. R. E. potuerunt ire ad quem Dominum volebant Staffordshire Statfordscire 5. Alric holds Stagrisgeshowe And Aswold holds Chrochesdene And 14. more hold Lands of Titles Ipsi has Terras renuerunt T. R. E. Prior to King William's amongst which the Earls Hugh de Ferriers and Alberic de Vere the first of which held St. Warburgh of Chester in the Time of the Confessor 6. And lastly Vctred held several Lands in the Time of King Edward as in the Time of William the First Besides several dispossessed who have their Titles allowed I think these six Instances are enough referring the more curious to Mr. Attwood's Book before mentioned or to the great Survey it self to bear out my Assertion That the English had Estates and Fortunes still in their hands which they held in King Edward's Time and did not derive under King William's Title Having now given you these six Individuals I shall offer you three more and they are from the Charters of King William the one to the Dean of St. Pauls confirming to him the Lands c. belonging to that Church and this was upon the day of his Coronation too The other is to the Abby of Westminster and the third to the City of London granting to them the Liberties and Franchises which they enjoyed in the Time of Edward the Confessor To begin with that made to the Dean of St. Pauls 1. Ego Willielmus Dei Gratia Rex Anglorum Carta Regis Williel Conquestor in Appendice in Histor Eccles. Cathedr S. Pauli By Sir Will. Dugdale fol. 190. unà cum Mathilda Reginâ Principibusque meis coram conventu Sacerdotum Dei Reverendis scilicet Archiepiscopis Aldredo Stigando caeterisque Episcopis Abbatibus hujus Patriae terras Monasterii Sancti Pauli quae in tempore Antecessorum meorum à quibuslibet hominibus ablatae fuerant injustè detentae omnes in die primi Diadematis Coronationis meae Deo ejusque Apostolo Paulo in Lundonia eorum servitoribus in perpetuùm possidendas restitui eas ex omni parte liberas esse concessi 2. William the first gives the Church of Westminster Cartae Antiq. C. C. n. 31. decimam de Wic de eadem parte quae ad me pertinebat atque iterùm reddidi eandem partem eis injustè ablatam quà m Rex Edwardus antea dederat So that we see that as on the one hand William the First gave them the Tithes of that part which was his right so likewise he restored the Tithes of that part which was unjustly taken from that Church and which Edward the Confessor had before given And no Conquest was here pretended but the Precedent proves the quite contrary viz. that there was none insisted on 3. And now I come to that respecting the City of London Williem King grets Williem Bisceop and Godfred * Porteregravan portgrave Saxonicè Porterefan ealle ya Burghwarn binnen London Frencise Englise frendlice Hollinshead's 3 d Vol. fol. 15. 2. Col. n. 21 IC kiden eoy yeet IC wille yeet git ben ealra weera la gayweord ye get weeran on Eadwerds daege Kings And IC wille yeet aelc child by his Fader yrfnume aefter his Faders daege And IC nelle ge Wolian yeet adnig man eoy aenis wrang beode God eoy heald Willielmus Rex Salutat Willielmum Episcopum Goffridum Portegrefium omnem Burghware infra London Frans. Angl. amicabilitèr Et vobis notum faeio quòd ego volo quòd vos sitis omni lege illa digni qua fuistis Edwardi diebus Regis Et volo quod omnis Fuer sit Patris sui haeres post diem Patris sui Et ego nolo pati quòd aliquis homo aliquam injuriam vobis inferat Dens vos salvet Englished in Stow's Survey of London Stow 's Survey of London fol. 740. thus William King grete William Bishop and Godfrey Porters and al the Burgeis within London Frensh and English And I grant you that I wyll that yee be all your Lawe worth that ye were in Edwardis dayes the King And I wyl that ich Childe be his Faders Eyer And I nyl suffur that ony Man you any wrongys beed And God you kepe Now 't is evident from this Charter 1. That it was made immediately upon or after the Coronation of William because you see he stiles himself King 2. This may seem to justify not only what the Historians who lived nearest his Time as Pictaviensâ—s c. but what his own Laws do likewise declare viz. That he was crowned King by compact with the English and at the same time swore inviolably to observe King Edwards Laws which he confirmed to them 3. With this further That he denounced a severe Prohibition that no Man should offer any affront or do any wrong to the Citizens of London 4. And for a compleat assurance of all this his Love and Kindness to the City he concludes with a Prayer to Heaven That God would keep and bless them But by the way give me leave to shew you though I think likewise it does not a little contribute to the strength and validity of my Argument the Greatness and Power of the City of London in those early Times I shall transcribe the words of a Learned Writer concerning it and so leave it to your more serious consideration William Stephanides
INJUSTA AB OMNI TALLAGIO ita quod nihil ab eis exigatur vel capiatur nisi SERVITIUM SUUM LIBERUM quod de Iure nobis facere debent facere tenentur prout STATUTUM est eis illis à nobis datum et concessum JURE HaeREDITARIO in perpetuum PER COMMUNE CONCILIUM TOTIUS REGNI NOSTRI praedicti The Second Branch is 2. Hoc quoque praecipimus Id c. 63. UT OMNES HABEANT ET TENEANT LEGES EDWARDI REGIS in omnibus rebus adauctis hiis quas constituimus AD UTILITATEM ANGLORUM Sir I think by these two Branches you may plainly see King William when he came in was so far from forcibly taking away the Lands and Possessions of the English and sharing them among his Normans that he doth if possible more strongly establish their Esâ—ates to them by confirming the good and ancient Laws of Edward the Confessor which were their best security of all they enjoyed before his entrance and not only so but by freeing them from all unjust Taxes and Exactions excepting only their free Service which of right was owing to him and which they were to do as it was agreed on by themselves and granted by him to them by hereditary Right for ever and that by the Common Council of the whole Kingdom and this was done too wholly for the sake and benefit of the English I shall trouble you Sir with one more very memorable Record as late as to the 26. Hen. 3. which shews That from before the coming in of this Norman Conqueror down to that Time the English had a Property continued to them and so then this MIGHTY MAN of VICTORY did not govern them as an entire and absolute Conqueror what-ever our late Writers have been pleased to publish to the World The words of the Record are Pro Iacobo Archamgere Communia de Term. â—â—nct Mich. 35. sin An. 36. incipien H. 3. Roâ— pr. penes Remem dom Thes. Rex Baronibus Jus Anglorum ab Antiq. p. 112 113. Serjantia tempore Edwardi Confes. Mandamus vobis quod occasione arrentationis Serjantiarum assessae per Robertum Passelewe non distringas Jacobum de Archamgere per 2. Marc. dimid de Tenemento quod de nobis tenet per Serjantiam in Archamgere in Comitatu Southampton c. per Chartam Beati Regis Edwardi Antecessoribus ipsius Jacobi super hoc confectam sed ipsum Jacobum de praedictis 2. Marcis dimid ' quietum esse faciatis in perpetuum quia Chartam praefati beati Edwardi confirmavimus ipsam volumus inviolabiliter observari Breve est in forulo Marescalli Mandatum est Vicecomiti South-hampton comparat die Iovis die 15. Ian. Anno Domini c. The English of it is this For Iacob Archamgere The King to the Barons We command you that by the occasion of the Rent of Serjanties assessed by Robert Passelewe you shall not distrain Iacob of Archamgere by two Marks and an half for the Tenement which he holds of us by Serjantie in Archamgere in the County of Southampton and granted by the Charter of the Blessed King Edward to the Ancestors of this Iacob but he the said Iacob shall for ever be freed from the aforesaid two Marks and an half because we have confirmed the Charter of the aforementioned St. Edward and we will have it to be inviolably observed I shall make no Remarks upon this Charter because it is obvious to every intelligent Reader the thing I drive at is to prove That the English were not violently dispossessed of their Properties which they quietly held and enjoyed in the Time of Edward the Confessor but that they still enjoyed them as before notwithstanding all the vain pretences to the contrary And now Sir I shall close up this third Point with a remarkable Passage or two out of Ordericus Uitalis a famous Historian who lived and writ in the latter end of the Reign of H. 1. and beginning of K. Stephen and for that reason must needs be admitted next to a Testis Ocularis for a Testimony beyond all exceptions His words are Omnia disponente Deo in spatio trium mensium per Angliam pacata sunt cunctique Orderic Vitalis Eccles Hist. lib. 3. fol. 503. Praesules Regnique Proceres cum Willielmo concordiam fecerunt ac ut Diadema Regium sumeret sicut Mos Anglici Principatus exigit oraverunt Hoc summoperè flagitabant Normanni qui pro fasce Regali nanciscendo suo Principi subierunt ingens discrimen maris Praelii Hoc etiam divino Nutu subacti optabant Indigenae Regni qui nisi coronato Regi servire hactenus erant soliti The next Paragraph but one to this goes on thus Denique Anno ab incarnatione Domini MLXVII Indictione V. in die Natalis Domini Angli Lundoniae ad Ordinandum Regem convenerunt Normannorum Turmae circa Monasterium in armis equis nè quid doli seditionis oriretur praesidio dispositae fuerunt Adelredus itaque Archiepiscopus in Basilica Sancti Petri Apostolorum Principis quae Westmonasterium nuncupatur ubi Edwardus Rex venerabiliter humatus quiescit in praesentia Praesulum Abbatum Procerumque totius Regni Albionis Gulielmum Ducem Normannorum in Regem Anglorum consecravit Diadema Regium capiti ejus imposuit Gulielmus Rex multa Lundoniae postquam coronatus est prudentèr Id. lib. IV. fol. 505 506. justè clementerque disposuit quaedam ad ipsius Civitatis commoda vel dignitatem alia quae genti proficerent Universae Nonnulla quibus consuleretur Ecclesiis terrae Jura quaecumque dictavit optimis rationibus sanxit Judicium Rectum nulla persona nequicquam ab eo postulavit Neminem nisi quem non damnare iniquum foret damnavit Suis quoque Primatibus digna se gravitate praecepit diligenter aequitatem suasit Esse jugiter in Oculis habendum aeternum Regem cujus vicerint praesidio Nimium opprimi victos non opportere victoribus professione Christianâ pares nè quos justè subegerint injuriis ad rebellandum cogerent Seditiones interdixit caedem omnem rapinam fraenans ut Populos armis ita legibus Arma. Tributis cunctis rebus ad Regium siscum reddendis modum qui non gravaret imposuit Latrociniis Invasionibus Malesiciis locum omnem intra suos terminos denegavit Portus quaelibet itinera Negotiatoribus patere nullam injuriam fieri jussit Sic omnino proba ejus in regnando initia fuere incrementa probitatum ad utilitatem Subditorum liquidò fulsere que in bonis perseverantia laudabilisque finis evidentibus signis confirmavere The sence of which is King William having sworn inviolably to observe the Laws of Edward the Confessor as I have already acquainted you and being crowned King the whole English Nation in three months time quietly submitted to him which the Historian observes to be
by Divine Providence And they much relyed upon the force of that Solemn Dath he took 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 bold 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 Apud Lambar LL. Wil. prim fol. 170. c. 55. but he prudently governed himself and set easy Boundaries to those Services Taxes Aids quod de jure 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 Pict avensis 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 Error to affirm The Anonimus Author against Mr. Petyt p. 37. That there were no English Men in the Common Council of the whole Kingdom OVr Government In his Argument for the Bishops Right in judging in Capital Causes in Parliament Postscript p. 2 saith the Learned 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 lodged 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 sit 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. County Courts 1. As it was their Wisdom to preserve the Ancient Land-marks LL. Hen. 1. c. 6 apud Lambard fol. 180. 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 L L. Guil. c. 42 fol. 168. no complaint 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 L L. Guil. c. 6â—â— The 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 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 â—anfrancum Archiepisâ—opum Odonem Bajocensâ—m Episcopum the Conqueror's half Brother 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
or Distress and in the same sence are used in the Custumary That which puts it further out of scruple is That 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 Sucâ—essor 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 Etheired were so hated of the English for their injustice and false Iudgment 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 Rolio 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 CONSVETVDINES 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 11 th 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 Confessors 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 forth his own Title to the Crown thus Beneficio Concessionis Cognati mei gloriosi
hither either out of Normandy or any other part of Franâ—e but are our Ancient Native Lawâ— I must now come to indeavour also to satisfy the Wonder If they were not brought out of Normandy or some other part of France how come they then to be written in the French Language Sir It is to me an Argument That because they are written in French therefore they were not brought in by Duke William the Norman for the French Tongue was not the Language of Duke William and the Normans They had not been then in Duke William's Time past four descents in that part of France and it is improbable that they in so short a Time should lose their Native Tongue and take up and use the Language of another Countrey which was conquered by them The Normans came from Sweden Gothland Norway and Denmark between whose Languages and with the High-Dutch their Neighbours there is a great affinity but between these Languagâ— and the French there is none at al. Vlphilus holds that the Dutch Tongue came from the Goths Iornandus saith The Goth's Tongue came from the Dutch All agree That between those Languages and the French there is no affinity It is so improbable that Duke William should cause our Laws to be in French that when he proclaimed them as Ingulphus testifies he commanded that they should be used in the same Language they were written in English to his Justices and gives the Reason Lest by Ignonorance we should happen to break them But it hath been further objected If Duke William did not cause our Laws to be written in French what then should be the Reason that the Grand Custumary of his Norman Laws were written in the French Tongue The Reason thereof is given That the Normans being a Rough and Martial People had few Clerks amongst them but made use of those French amongst whom they then lived and whose Language they then began to be acquainted with and to understand But when they were in England they had not so much use of those Clerks and that Language but more of the English And probably it might be that the Confessor had been so long in France that he was more Master of that Language than the Normans and that the Normans understood that Language better than the English and thereupon the Custumary was written in the French Tongue But it doth not therefore follow that Duke William must cause the English Laws to be written in the French Tongue but it is more likely that he might cause them to be continued in their Native Idiom which was much nearer in affinity to his own Northern Language than the French was That the French Tongue was not introduced as to our Laws and other things by Duke William into England appears in that the French was in great use with us here both before and some-time after his Invasion Beda affirms That in Anno 640 it was the Custom of England to send their Daughters into the Monasteries of France to be brought up there and that Ethelbert Ethelwulf Ethelred and other Saxon Kings married into the Royal Blood of France Gâ—â—bor notes That before the Time of Duke William the Normans and English did so link together that they were a Terror to Forreign Nations Ingulphus saith That the Saxon Hand was used until the Time of King Alfred long before the Time of Duke William and that he being brought up by French Teachers used the French Hand And he notes many Charters of Edward and Edgar written in the French Hand and some Saxon mixt with it as in the Book of Dooms-day That Edward the Confessoâ— by reason of his long being in France was turned into the French Fashion and all England with him But that William the first commanded our Laws to be written in the English Tongue because most Men understood it and that there be many of his Patents in the Saxon Tongue I suppose we may be satisfied that William the first did not cause our Laws to be written in French though the French Language was much in use here before his Time And if he did not introduce the French Language into England the Argument falls That because they are written in French therefore he brought them in But Sir I shall offer you some Conjectures how it came that our Laws were Written in French which I suppose might be begun in the Time of our K. Hen. 2. who was a Frenchman born and had large Territories and Relations in France and with French-men of whom great Numbers came into England and they and the English matched and lived together both here and in some parts of France Hence it came to pass as Giraldus Cambrensis notes that the English Tongue was in great use in Burdeaux and in other parts of France where the English-men were resident and conversant the like was when the French-men were so conversant in England Mathew Westminster writes That he was in hazard of losing his Living because he understood not the French Tongue and that in King Hen. 2. and King Stephen's Time who had large Dominions in France their Native Country and the Number of French and of Matches with them was so great that one could hardly know who was French and who English Gervasius Tilsberiensis observes the same And Brackland writes That in Rich. 1. Time preaching in England was in the French Tongue Probably Pleading might be so likewise and in King Iohn's Time French was accounted as the Mother Tongue There are scarce any Deeds of our Kings in French before Hen. 2. his Time the most are in Ed. 1. and Ed. 2. their Time That our Laws were pleaded and written in French before Edw. 3. his Time appears by the Stat. 36. Edw. 3. c. 15. which recites the Mischief of the Law being in French and enacts That the Law shall thereafter be pleaded in English and enrolled in Latin This is one ground of the mistaken Opinion of Lambard Polydore Speed and others That Duke William brought in hither both the Norman Laws and Language which I apprehend to be fully answered and the contrary manifested by what I have said before on this Subject Polydore's Mistake may appear the more when he asserts that by the Stat. 36. Edw. 3. Matters are to be enrolled in English which is contrary to the express Words that they are to be enrolled in Latin Many of our Law-Books were written in Latin before the Norman Invasion as appears by the Ancient Rolls of Mannors and Court Barons and our Old Authors Glanvill Bracton Tilsbury Hengham Fleta the Register and the Book of Entries The Records at Westminster and the Tower and other Records yet extant are in Latin and many Books of our Law in Latin were translated into English about Edw. 3. his Time Most of our Statutes from Edw. 1. his Time till about the middle of Hen. 7. his Reign are enrolled in French notwithstanding this Stat. 36. Edw. 3. except the Stat. 6. R. 2. some others