Person of great Learning and Abilities in his Time collected out of a large Original Manuscript which I have seen of Sir Roger Owen a very great Antiquary that lived in the Time of King James and one who as appears by that Book was a Man not only of wonderful Knowledg and admirable Observation in the Records and Histories of his own Nation but also in those of Foreign Countries This was a Speech of the then Lord Whitlock in Novemb. 1650. upon the House's long and smart Debate touching the Act for putting all the Books of Law and the Process and Proceedings in Courts of Justice into the English Tongue In which Debate some spake in derogation and dishonour of the Laws of England For some vindication whereof and for satisfying some Mistakes he delivered his Opinion in the House to this effect It is now newly printed in Mr. Whitlock's MEMORIALS OF THE ENGLISH AFFAIRS c. and is here truly transcribed Mr. Speaker THe Question upon which your present Debate ariseth is of no small moment nor is it easily or speedily to be determined for it comprehends no less than a total Alteration of the Frame and Course of Proceedings of our Law which have been established and continued for so many Years I should not have troubled you with any of my weak Discourse but that I apprehend some Mistakes and dishonour to the Law of England if passed by without any Answer may be of ill consequence and having attended to hear them answered by others who are not pleased to do it I held my self the more engaged in the duty of my Profession to offer to your Judgment to which I shall always submit what I have met with and do suppose not to be impertinent for the rectifying of some Mistakes which are amongst us A worthy Gentleman was pleased to affirm with much confidence as he brought it in upon this Debate That the Laws of England were introduced by William the Conqueror as among other Arguments he asserted might appear by their being written in the French Tongue In his first Assertion that our Laws were introduced by William the Conqueror out of France I shall acknowledg that he hath several both Forreign and Domestick Authors whom he may follow therein The Forreign Authors are Jovius Aemilius Bodine Hottoman Dynothus Volateran Berault Berkley Choppinus Vspargensis Malines and Polidore who affirm this erròneous piece of Doctrine but the less to be regarded from them because they were strangers to our Laws and took up upon trust what they published in this Point Of our own Country-men they have Paris Malmesbury Matthew Westminster Fox Cosins Twyne Heyward Milles Fulbeck Cowell Ridley Brown Speed Martyr and some others All of them affirm That the Laws of England were introduced by William the Conqueror But their Errors are refuted by Sir Roger Owen in his Manuscript who saith That Roger Wendover and Matthew Paris were the first Monks that hatched these addle Eggs. I shall endeavour to shew you That the Original of our Laws is not from the French that they were not introduced by William the Conqueror out of Normandy And I shall humbly offer to you my Answer to some of their Arguments who are of a contrary opinion Polydore Hist Angl. l. 9. affirmeth That William the Conqueror first appointed Sheriffs and Iustices of the Peace erected Tenures brought in Trials by twelve Men and several other Particulars of our Laws For Sheriffs their name Scire Reeve shews them to be of the Saxon Institution And our Histories mention the division of Shires by King Alphred but in truth it was much more ancient And it is apparent by our Books and Records some whereof are in the Hustings of London and in the Tower that the same things were in use here long before the Time of King Will. 1. Sir Roger Owen shews at large That Livery of Seisin Licenses or Fines for Alienation Daughters to inherit Trials by Iuries Abjurations Utlaries Coroners disposing of Lands by Will Eseheats Gaols Writs Wrecks Warranties Catalla Fellonum and many other parts of our Law and the Forms of our Parliaments themselves were here in being before the Time of Duke William Agreeing hereunto are many of our Historians and learned Antiquaries But it is objected That in the Grand Custumary of Normandy the Laws are almost all the same with ours of England and the form of their Parliaments the same with ours That the Writer of the Preface to that Book saith It contains only the Laws and Customs which were made by the Princes of Normandy by the Councel of their Prelats Earls Barons and other Wise Men which shews the forms of their Parliaments to be the same with ours and the Laws in that Book to be the proper Laws of Normandy and ours to be the same therefore they argue that our Laws were introduced from thence by William the Conqueror This will be fully answered if that Grand Custumary of Normandy was composed in our King Edw. 1. his Time as good Authors hold it was then it cannot be That our Laws or Parliaments could be derived from thence These Learned Men say That this Custumary was a meer Translation of our law-Law-Book Glanvill as the Book of Regia Majestas of the Laws of Scotland is and the like of the Laws of Burgundy They farther add That the first establishing of the Custumary of Normandy was in Hen. 1. his Time and afterwards again about the beginning of Edw. 2. his Time. If the Laws in the Custumary were introduced there from England it will then be granted that the Laws of England were not introduced here by William the Conqueror But I think it very clear that their Laws were brought to them out of England and then you will all agree to the conclusion Our King Hen. 1. conquered Normandy from his Brother Robert and was a Learned King as his Name Beauclerke testifies whom Ivo calls an especial Establisher of Iustice Sequerius relates That this King established the English Laws in Normandy Herewith do agree Gulielmus Brito Armoricus Rutclurius and other French Writers who mention also That the Laws in the Custumary of Normandy are the same with the Laws collected by our English King Edward the Confessor who was before the Conqueror An additional Testimony hereof is out of William de Alenso Revile who in his Comment upon the Custumary saith That all the Laws of Normandy came from the English Laws and Nation In the Custumary there is a Chapter of Nampes or Distresses and decreed That one should not bring his Action upon any Seisure but from the Time of the Coronation of King Richard and this must be our King Richard the first because no King of France was in that Time of that Name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sence are used in the Custumary That which puts it further out of scruple is That
his Heir and adopted me to Rule over this Nation In his Charter dated 1088. of the Liberties of St. Martins the Great in the Manuscript thereof are these words In Example of Moses who built the Tabernable and of Solomon who built the Temple Ego Guilielmus Dei dispositione consanguinitatis Haereditate Anglorum Basileus c. The Charter of Hen. 1. his Son to this Abby in honour of Edward my Kinsman who adopted my Father and his Children to be Heirs to this Kingdom c. In another Charter of Hen. 1. in the Book of Ely he calls himself the Son of King William the Great who by Hereditary Right succeeded King Edward It is true as to his pretence of Title by the Will of the Confessor Mathew Paris objecteth That the Devise was void being without the consent of the Barons To which may be answered That probably the Law might be so in Hen. 3. Time when Paris wrote and was so taken to be in the Statute of Carlisle and in the Case of King John. But at the time of Duke William's Invasion the Law was taken to be That a Kingdom might be transferred by Will. So was that of Sixtus Rufus and Asia came to the Romans by the Will of King Attalus the words by Annaeus Florus are Populus Romanus Bonorum meorum HAERES esto Bithinia came to the Romans by the last Will of their King Nicomedes which is remembred by Vtropius together with that of Libia Cicero in his Oration tells us That the Kingdom of Alexandria by the last Will of their King was devolved to Rome And Prasutagus Rex Icenorum in England upon his Death-bed gave his Kingdom to the Emperor Nero. As to Examples in this Point at Home This King William the first by his Will gave England to his younger Son William Rufus King Stephen claimed by the Will of Henry the first King Henry the eight had Power by Act of Parliament to order the Succession of the Crown as he pleased by Will. And the Lords of the Council in Queen Mary's Time wrote to her That the Lady Iane's Title to the Crown was by the Will and Letters of Edward the sixth As the case of Hen. 8. was by Act of Parliament so Duke William after he had conquered Harold was by the general consent of the Barons and People of England accepted for their King and so his Title by Will confirmed And he both claimed and governned the Kingdom as an Heir and Successor confirmed their Antient Laws and ruled according to them This appears by Chronica Chronicorum speaking of William the Bastard King of England and Duke of Normandy he saith That whereas as St. Edward had no Heir of England William having conquered Harold the Vsurper obtained the Crown under this Condition That he should inviolably observe those Laws given by the said Edward It is testified likewise by many of our Historians That the Ancient Laws of England were confirmed by Duke VVilliam Jornalensis saith That out of the Merchen-Lage West-Saxon-Lage and Dane-Lage the Confessor composed the Common Law which remains to this day Malmesbury who lived in Duke William's Time saith That the Kings were sworn to observe the Laws of the Confessor so called saith he because he observed them most religiously But to make this Point clear out of Ingulphus he saith in the end of his Chronicle I Ingulphus brought with me from London into my Monastery Crowland the Laws of the most Righteous King Edward which my Lord King William did command by his Proclamation to be Authentick and Perpetual and to be observed throughout the whole Kingdom of England upon pain of most heinous punishment The Lieger-Book of the Abby of Waltham commends Duke William for restoring the Laws of the English-men out of the Customs of their Country Radburn follows this Opinion and these Laws of Edward the Confessor are the same in part which are continued in our GREAT CHARTER of LIBERTIES A Manuscript entituled De Gestis Anglorum saith That at a Parliament at London 4. W. 1. the Lawyers also present that the King might hear their Laws he established Saint Edward's Laws they being formerly used in King Edgar's Time. There is also mention of the twelve Men out of every County to deliver truly the Estate of their Laws The same is remembred by Selden's History of Tythes and Titles of Honour and in a Manuscript Chronicle bound with the Book of Ely in Cotton's Library One of the worthy Gentlemen from whom I differ in Opinion was pleased to say That if William the Conqueror did not introduce the Laws of Normandy into England yet he conceives our Laws to be brought out of France hither in the time of some other of our Kings who had large Territories in France and brought in their Laws hither else he wonders how our Laws should be in French. Sir I shall endeavour to satisfy his Wonder therein by and by but first with your leave I shall offer to you some Probabilities out of the History That the Laws of England were by some of those Kings carried into France rather than the Laws of France brought hither This is expresly affirmed by Paulus Jovius who writes That when the English Kings reigned in a great part of France they taught the French their Laws Sabellicus a Venetian Historian writes That the Normans in their Manners and Customs and Laws followed the English Polydore Virgil contradicting himself in another place than before cited relates That in our King Hen. 6. Time the Duke of Bedford called together the Chief Men of all the Cities in Normandy and delivered in his Oration to them the many Benefits that the English afforded them especially in that the English gave to them their Customs and Laws By the Chronicle of Eltham H. 5. sent to Cane in Normandy not only Divines but English Common Lawyers by the agreement at Troys So there is much more probability that the Laws of England were introduced into France and Normandy than that the Laws of Normandy or any other part of France were introduced into England If the Normans had been Conquerors of England as they were not but their Duke was only a Conqueror of Harold and received as Hereditary King of England yet is it not probable they would have changed our Laws and have introduced theirs because they did not use to do so upon other Conquests The Normans conquered the Isles of Guernsey and Jersey yet altered not their Laws which in their local Customs are like unto ours The like they did in Sicily Naples and Apulia where they were Conquerors yet the Ancient Laws of those Countries were continued I hope Mr. Speaker I have by this time given some satisfaction to the Worthy Gentlemen who differed from me that the Laws of England were not imposed upon us by the Conqueror nor brought over hither either out of Normandy or any other part of France but are our Ancient Native Laws I must now come to indeavour
ground to believe he was a great Man that he had a Sir-name or Addition Because if we believe the Great Antiquary Mr. Cambden Sirnames Camb. Rem p. 136. were not setled among the Common People fully till about the Time of Edw. 2. 2. The Earl of Moreton a very Ipse Comes tenuit Estreham T. R. E. powerful Prince 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 a 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 who was all Camb. Rem p. 136. 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 Jure 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 Ipsi has Terras tenuerunt T. R. E. And Aswold holds Chrochesdene 14. more hold Lands of Titles 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 Carta Regis Williel Conquestor in Appendice in Histor Eccles Cathedr S. Pauli By Sir Will. Dugdale fol. 190. Anglorum 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 Cartae Antiq. C. C. n. 31. Church of Westminster 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 Hollinshead ' s 3d Vol. fol. 15. 2. Col. n. 21. Porterefan ealle ya Burghwarn binnen London Frenciâ—e Englise frendlice Ic kiden eoy yeet Ic wille yeet git ben ealra weera lâ— 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 facio quòd ego volo quòd vos sâ—iâ— omni lege illa digni quae fuistis Edwardi diebus Regis Et volo quod omnis Puer sit Patris sui haeres post diem Patris sui Et ego nolo pati quòd aliquis homo aliquam injuâ—iam vobis inferat Deus 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 Pictaviensis 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 a Monk of Canterbury born as Stow saith in his fore-cited Book of Worshipful Parents in the City of London and who lived in the Stephanid
as the Rest in the consequent of a general consecration of Tithes to the Church in England For neither were the Laws formerly made abolish'd by that Conquest altho' by Law of i Vid. Quintilian lib. 5. Institution cap. 10. Athe. Gentil de â—â—re belli lib. 3. cap. 5. Hottoman illust Quaest 5. War regularly all Rights and Laws of the Place conquered be wholly subject to the Conqueror's Will. For in this of the Norman not only the Conqueeor's Will was not declared that the former Laws should be abrogated and until such Declaration Laws remain in force by the Opinion of k Calvin's Can. fol. 17. b some in all Conquests of Christians against Christians but also the ancient and former Laws of the Kingdom were confirmed by him For in his fourth Year by the Advice of his Baronage he summoned to London omnes Nobiles sapientes Lege sua eruditos ut eorum Leges Consuetudines audiret as the words are of the Book of Litchfield and afterward confirmed them as is further also related by l in H. 2. p. 347. Roger of Hoveden Those Lege suâ eruditi were common Lawyers of that Time as Godrie and Alfwin were then also who are spoken of in the Book of m MS lib. 2. p. 33. 30. in Biol Cotton Abingdom to be Legibus Patriae optime instituti quibus tanta secularium facundia praeteritorum memoria eventorum inerat ut caeteri circumquaque facilè eorum sententiam ratam fuisse quem edicerent approbarent And these two and divers other Common Lawyers then lived in the Abby of Abingdon Quorum collationi nemo sapiens says the Author refragabatur quibus rem Ecclesia publicam tuentibus ejus oblocutores elingues fiebant You must know that in those days every Monk here in England that would might remain so secular that he might get Mony for himself purchase or receive by descent to his own use And therefore it was fit enough for practising Lawyers to live in Monasteries But what had those praeteritorum memoria eventorum that is Reports and adjudged Cases of the Saxon Times availed in their skill if the former Laws had not continued More obvious Testimonies to this purpose are had out of u Videsis Cok. Praefar ad Relat. 3. 8. si placet Not. ad fortesc p. 7 8. Gervase of Tilbury Ingulphus and others and we here omit them But also indeed it was not to be reputed a Conquest or an Acquisition by right of War which might have destroyed the former Laws so much as a violent recovering of the Kingdom out of the hands of Rebels which withstood the Duke's pretence of a lawful Title claimed by the Confessor's adoption or designation of him for his Successor his nearness of Blood on the Mother's side not a little also aiding such a pretence to a Crown For the Confessor's Mother Emme was Sister to Richard the Second Duke of Normandy to whom William was Grand-child and Heir But these were only specious Titles and perhaps examined curiously neither of them were at that time enough And howsoever his Conscience so moved him at his death that he profest he had got * Historia Cadonensis England only by Blood and the Sword yet also by express Declaration in some of his Patents he before pretended his Right from the Confessor's Gift p Chart. Eccl s Westm in inspex part 7. 1. Ed. 4. m. 26. vid. Camb. pag. 104. In ore gladii saith he Regnum adeptus sum Anglorum devicto Haraldo Rege cum suis complicibus qui mihi Regnum cum providentia Dei destinatum beneficio concessionis Domini cognati mei gloriosi Regis Edwardi concessum conati sunt auferre c. And the Stories commonly tells us That the Confessor Successionem Angliae ei dedit And although Harold also pretended a Devise of the Kingdom to himself made by the Confessor in extremis and urged also that the Custom of England had been from the time of Augustine's coming hither q MS. sive Autor Guil. Pictav sive quis alius sit in Bibl. Cotton Donationem quam in ultimo fine quis fecerit eam ratam haberi and that the former Gift to the Norman and his own Oath for establishment of it were not of force because they were made r Malmesb. lib. 5. de Gest Regum p. 56. a. aliâ— in Will. 1. videsis Mat. Paris in Hen. 3. p. 1257. Edit Londin absque generali Senatus Populi conventu edicto yet for his own part he was driven to put all upon the Fortune of the Field and so lost it And the Norman with his Sword and pretence of the sufficiency and precedence of the Gift made to himself got the Crown as if he had been a lawful Successor to the Confessor and not an Vniversal Conqueror All this is plain out of the Stories and justified infallibly by that of the Titles of many common Persons made to their Possessions in England after his Kingdom setled upon the possession of themselves or their Ancestors in time of the Saxon Kings especially of the Confessor But this was always in case where they by whose possession the Title was made had not incurr'd Forfeiture by Rebellion Many such Titles are clearly allowed in the Book of Dooms-day written in the Conqueror's Time One especially is noted by the most learned Camden in his Norfolk That as I remember is touched in Dooms-day also but enough others are dispersed there which agree with it How could such Titles have held if he had made an absolute Conquest of England wherein an Vniversal Acquisition of all had been to the Conqueror and no Title could have been derived but only from or under him More might be brought to clear this but we add here only the judicious Assertion of a great s Shard in cas in itin temp Ed. 3. fol. 143. b. Lawyer of Edward the Third's Time Le Conqueror saith he ne vient pas pur ouster eux que avoient droiturell possession mes de ouster eux que de leur tort avoâ—ent occupie ascun terre en disheritance del Roy son Corone It was spoken upon an Objection made in a Quo Warranto against the Abbot of Peterborough touching a Charter of King Edgar which the King's Councel would have had void because by the Conquest all Franchises they said were devolved to the Crown But by the way for that of his nearness of Blood which could not but aid his other pretended Title let it not seem meerly vain in regard of his being a Bastard There was good pretence for the help of that defect also For although the Laws of this Kingdom and I think of all other Civil States at this day exclude Bastards without a subsequent Legitimation from Inheritance yet by the old Laws used by his Ancestors and Country-men that is by those of Norway a Prince's Son gotten
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 Languages and the French there is none at all Vlphilus holds that the Dutch Tongue came from the Goths Jornandus 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 Glabor 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 Confessor 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 Polydores 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 in Latin R. 2. H. 4. H. 5. and H. 6. used to write their Letters in French and some of our Fleadings
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 Hawling 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 Vulgar 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 perspicuous 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 VVilliam 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 for ENGLISH-MEN to depravâ— their Birth-right the Laws of their own Country Thus Sir have I impartially given you my Sentiments of VVilliam the first his Conquest which hath been so terribly and frightfully represented and published to the VVorld by the Ignorance Interest and Artifice of some Modern VVriters 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 Judicious 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 Jani Anglorum Facies Alterâ— Mr. Sytas Taylor 's History of Gavelkind Mr. Petyt's Rights of the Commons of England asserted And Mr. Attwood's Jani Anglorum Facies Nova And his Jus Anglorum ab Antiquo You would likewise I suppose be extreamly pleased in the
perusal of another Learned and Modest Book written by an Anonymous Author 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 Feoffamenti Regis Aethelstani nullum servitium fecit nisi Orationes In Rotulo de Inquisitionibus Dominicorum Dorsetshire Ano. 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 Eccle 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 futuram 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 cujusdam fidelis mei Ingelrici scilicet petitioni acquiescens Archiepiscoporum Episcoporum Abbatuum Comitum Vniversorum procerum meorum Sacro Consilio parens omnes possessiones terrarum quas tempore venâ—rabilis ac dilectissimi cognati predecessoris mei Regis Edwardi Idem Ingelricus acquisierat ê™ ipsius insignissimi Regis Animae Salute necnon peccatorum meorum Remissione concedo Regia auctoritate imê‘pm corroboro confirmo Deo Eccle Beati Martini quam infra muros London sitam pfatus Ingelricus Erardus Frat ejus de propriis suis Redditibus in delictorum suorum Remedin honorabiliter ad Dei laudem Canonicalem Regulam imê‘pm 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 psumpserit cum Juda Proditore Dei haeredibas luat penas Scripta est haec Chartula An ab Incarnatione Dm M. LX. VIII scilicet secundo Anno Regni mei ê‘acta 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 consccrata c. Ego Willus Rex Anglorum Dux Normannorum sub Sigillo Sancte ✚ quas indeclinabiliter consensi atque ✚ roloravi 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 interfui Ego Goiffridus Episcopus corroboravi Ego Hermannus Episcopus concessi Ego Leouricus Episcopus concessi Ego Giso Episcopus concessi Ego Edwious 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 Apostolice ✚ Sedi ê‘tinuit libtatem Ecclie psenti Signo confirmavi Ego Petrus Sancte Romane Ecclie similit Cardinalis Presbit Cancellarius ab eodem Papa in Angl elegatus ✚ 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 Consanguinitatiâ— 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 Rot. Parl. 2. H. 5. Pars secunda N. 10. Commons made the Parl. 2d H. 5. 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