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A33624	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?	Atwood, William, d. 1705?; Johnson, Samuel, 1649-1703.; Coke, Edward, Sir, 1552-1634.; Petyt, William, 1636-1707.; Cooke, Edward, of the Middle Temple.	1682 (1682)	Wing C4907; ESTC R1971	61,200	184

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

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 Ten●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

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 Suc●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

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 regi●●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

of before S●lden's Review of his History 〈◊〉 Tithes p. 482 483 484. as well as of after the Norman Conquest as it is vulgarly called are here gathered and are perhaps equally observable as the Rest in the consequent of a general consecration of Tithes to the Church in England For neither were the Laws formerly made abolish'd by that Conquest altho' by Law of i Vid. Quintilian lib. 5. Institution cap. 10. Athe. Gentil de Jere 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 Conqueror'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 suà 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 Godric and Al●win were then also who are spoken of in the Book of m MS lib. 2. p. 3● 30. in Bibl. Cotton Abingdom to be Legibus Patriae optime instituti quibus tantae 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 n Videsis Cok. Praefax 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 Cadohensis 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. Eccles Wes●m 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. alii 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 Universal 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 Universal 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 avoient occupie ascun ierre en disheritance del Roy son Corone It was spoken upon an Objection made in a Quo Warranto against the Abbot of Peterborough touching a Charter of King Edgar which the King's Councel would have had void because by the Conquest all Franchises they said were devolved to the Crown But by the way for that of his nearness of Blood which could not but aid his other pretended Title let it not seem meerly vain in regard of his being a Bastard There was good pretence for the help of that defect also For although the Laws of this Kingdom and I think of all other Civil

States at this day exclude Bastards without a subsequent Legitimation from Inheritance yet by the old Laws used by his Ancestors and Country-men that is by those of Norway a Prince's Son gotten t Vid. Roger de Hoveden in Rich. 1. fol. 425 347. on a Concubine bond or free was equally inheritable as any other born in Wedlock which was I believe no small Reason why he stood at first so much for the Laws of Norway to have been generally received in this Kingdom And some Stories also which make mention of Duke Robert his getting William on that Arlet or Arlec as she is sometimes written say That she was to him a good while vice Vxoris So Henry of u In Bibl. Cotton Knyghton Abbot of Leicester Transiens saith he Robertus 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 Britann●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

hither either out of Normandy or any other part of Fran●e but are our Ancient Native Law● 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 Languag● 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 G●●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 Confesso● 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

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 perspi●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

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 s●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' Eng● 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 Prel●tes Seigneures Temporels prierent en mesine le manere sur ce nostre Seigneur ledit Roy mercia les dits Seigneurs Communes de la grant tendresse affection qu●ils avoient a la Salvation de son Honeur de son Estate a cause que lour dit priers requestes luy semblerent honestes resonables il sagrea assenta pleinement a ycelles Now can any Man of but an ordinary understanding think That the Parliament intended by this Act to out themselves of all their Ancient and Legal Rights and totally to give up their Estates and Fortunes to the King 's absolute Disposition Is it possible almost to be supposed that they designed to confound and overthrow the whole Polity and Government of the Kingdom and reduce all to the Arbi●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 y●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 U●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 ingeniou●●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