and in the same sence are used in the Customary 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 Councels 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 Customary It is no improbable Opinion that there was a former establishment of our Laws in Normandy before the time of H. 1. and that it was by Edward the Confessor who as all Writers of our History agree was a great Collector and Compiler of our English Laws He lived a long time with his Kinsman Duke William in Normandy who was willing to please the Confessor in hopes to be appointed by him to be his Successor wherein the Dukes 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 D. William were different from those in the Customary and from the English Laws As their Law that the Husband should be hanged if the Wife were a Thief and he did not discover it The meaner People were as Slaves and the like and the trial of Theft by Ordeil which then was not in England Wigorniensis reports That the Normans who came in with Queen Emma the Wife of Ethelred were so hated of the English for their Injustice and false Judgment that in the time of King Canutus they were for this cause banished and it is the less probable that they being so unjust themselves should introduce so just Laws as ours are Between the Conquest of Normandy by Rollo and the Invasion of England by Duke William there were not above 160 Years that of Normandy was about An. 912. that of England An. 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 onely fit for their Dukedom and small Territory but fit also for this Kingdom which in those dayes 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 Proheme of the Customary which is titled Descriptio Normanniae Hucusque Normannicae consuetudinis latorem sive datorem Sanctum Edvardum 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 duodecem hominum Vicinorum which he sayeth remained in Normandy to that day Polydore forgetting himself what he wrote in another place sayeth of King Henry the Seventh That when a doubt was made upon the Proposal of Marriage of his Daughter to Scotland that thereby England night 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 sayeth the Historian it did Normandy though the Owner thereof was Conquere in 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 Custome introduced by the Conquerour Some of them and not improbably mention the alteration of some part of them and the bringing in some Norman Customes 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 Conquerour 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 â 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 surnamed himself the Conquerour nor was so called in his life time as may appear by all the Letters Patents and Deeds that he made wherein he is called Gulielmus Rex Dux c. never Conquestor and our antient Historians give him the same Titles and not that of Conquerour In the Title of Nubrigensis's Book he is surnamed William the Bastard Malmsbury calls him W. 1. Hoveden W. the Elder Adam de Monmouth sayeth That 1. E. 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 Conquerour who claimed the Crown as Heir to Edward the Confessor but saith he we call him the Conquerour 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 Harolds renouncing of his Title by Oath The Register of St. Albans Math. Paris and others attest that the Barons of England did homage to him as Successor and he relyed 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 ingage 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 Second sent him a Banner as witness that with a safe Conscience he mighe expel Harold the Tyrant because the Crown was due to him by the Confessors Will and by Harolds Oath Agreeable hereunto are Gemiticensis Walsingham Malmsbury Huntington Ingulphus Paris Pike Wendover Caxton Gisborn and others The antient Deeds of the Abby of Westminster which were sometimes 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 Regis Edvardi In his
Second Charter dated anno 15. of his Reign he sayeth 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 Tabernacle and of Solomon who built the Temple Ego Gulielmus dei dispositione Consanguinitatis haereditate Anglorum Basileus c. The Charter of H. 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 Henry 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 that as to his pretence of Title by the Will of the Confessor Mathew Paris objecteth That the device was void being without the consent of the Barons To which may be answered That probably the Law might be so in H. 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 D. Williams Invasion the Law was taken to be That a Kingdom might be transferred by Will So was that of Sixtus Rusus and Asia came to the Romans by the Will of King Attalus the words by Annaeus Florus are Populus Romanus bonorum meorum Haeres esto Bythinia came to the Romans by the last Will of their King Nicomedes which is remembred by Utropius together with that of Lybia Cicero in his Orations tells us That the Kingdom of Alexandria by the last Will of their King was devolved to Rome And Prasitagus Rex Icenorum in England upon his death-bed gave his Kingdom to the Emperour Nero. As to Examples in this point at home this King William the 1. by his Will gave England to his younger Son William Rufus King Steven claimed by the Will of Henry the first King Henry 8. had power by Act of Parliament to order the Succession of the Crown as he pleased by Will. And the Lords of the Councel in Queen Marys time wrote to her That the Lady Janes Title to the Crown was by the Will and Letters of Edward 6. As the Case of Henry 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 Governed the Kingdom as an Heir and Successor confirmed their antient Laws and ruled according to them This appears by Chronica Cronicorum speaking of William the Bastard King of England and Duke of Normandy he saith That whereas St. Edward had no Heir of England William having conquered Harold the Usurper obtained the Crown under this Condition That he should inviolably observe those Laws given by the said Edward It is testifyed likewise by many of our Historians that the antient Laws of England were confirmed by Duke William Jornalensis sayeth That out of the Merchenlage West-Saxon-Lage and Dane-Lage The Confessor composed the Common Law which remains to this day Malmsbury who lived in Duke Williams time sayeth that the Kings were Sworn to observe the Laws of the Confessor so called sayeth he because he observed them most religiously But to make this point clear out of Ingulphus he sayeth 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 anthentick and perpetual and to be observed throughout the whole Kingdom of England upon pain of most heinous punishment The Leiger Book of the Abby of Waltham commends Duke William for restoring the Laws of the English Men out of the Customes of their Countrey Radburn follows this Opinion and these Laws of Edward the Confessor are the same in part which are contained in our great Charter of Liberties A Manuscript entituled De gestis Anglorum sayeth That at a Parliament at London 4 W. 1. the Lawyers also present that the King might hear their Laws He Established St. Edward Laws they being formerly used in King Edgars time There is also mention of the 12 men out of every County to deliver truely the State of their Laws the same is remembred by Selden History of Tithes and Titles of Honour and in a manuscript Chronicle bound with the Book of Ely in Cottons Library One of the worthy e Gentlemen from whom I differ in Opinion was pleased to say That if William the Conquerour 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 endeavonr 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 carryed into France rather than the Laws of France brought hither This is expressly 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 Customes and Laws followed the English Polydore Virgil contradicting himself in another place than before cited relates that in our King Henry 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 Customes 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 in England If the Normans had been Conquerours of England as they were not but their Duke was only conquerour 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 Jersy yet altered not their Laws which in their local Customes are like unto ours The like they did in Sicily Naples and Apulia where they were Conquerours yet the antient 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 Conqueronr nor brought over hither either out of Normandy or any
Wilde are a person thus qualified and very well deserving from the Common-wealth they have thought fit to place you in one of the highest Seats of Judicature and have Ordained you to be Lord Chief Baron of this Court The freedom of this choice without seeking or other means for promotion this publick consent for your preferment cannot but bring much satisfaction to your own conscience and encouragement to your endeavours against all burdens and difficulties which attend so great and weighty and Imployment Custom and the due Solemnity of this work and the honour of that Authority by which we meet requires something to be said upon this occasion and the Commands of my Lords have cast it upon me for which reasons though I acknowledge my unfitness to speak upon this subject yet I presume upon a fair and favourable interpretation I shall borrow a little part of your time in speaking of the antiquity of this Court and of your Office in it and of the dignity and duty of your place For the Antiquity of this Court my Lord Coke in his Fifth Report and 9 Edward 4. fol. 53. and other Books affirm that the four Courts in Westminster-Hall are of great antiquity and that no man can tell which of them is most antient But if you Credit Lambert in his Archeion fol. 28. this Court was erected here by William the Conqueror after the pattern of his Exchequer in Normandy and for proof hereof he cites Gervasius Tilburicusis but under correction I find in this Author a doubt made by himself whether this Court were not in the time of the English Kings and if so it was before W. 1. time Lambert saith in the same place that this Court is of great Antiquity and the orders and customs of it not to be disobeyed Gervase of Tilbury asserts the great Antiquity and Customs of it and if you reckon the antiquity and customs as we must from the time of his Book which was dedicated to Henry the Second and the Author ackowledgeth that he had conference with the Bishop of Winchester who was son to the Conqueror's sister this Court must be before the Conquest or it will hardly deserve the words great antiquity and Customs when Gervase of Tilbury did write being so near the Conquest Lambert who citeth him also observes that the Exchequer in Normandy was the Soveraign Court for administration of Justice and that it differeth not a little from the Exchequer here the less reason under his favour to have been a pattern for it I find in rot Normanniae 2 Johan a Writ Baronibus de Scaccario in Normannia and the word Baron being Saxon not likely to be brought out of France hither and in France this kind of Court in all the Parliaments is called La Chambre des finances as may be seen in Pasquier recherches and Haillan and so it is called in Normandy at this day the alteration being made there by Lewis the 12. and if we credit him that derives the word Scaccarium from the Saxon words Schats for treasure and Zecherie an Office the word is more likely to be fetched out of England into Normandy than the contrary My Lord Coke in his preface to the Third Report citeth Will. de Rovill his Comment upon the Grand Customier of Normandy and it is in the beginning of it that those Customs were taken out of the Laws of England about the time of Edward the Confessor who he saith was harum legum lator And with this agree Seldens Duello fol. 22. Cambden the Book de antiquis Britanniae legibus and others who also hold that before the Conquest we had Escheats tenures reliefes and Sheriffs in England the principal business of this Court The Register the antient Book of our Law hath divers Writs that were in use before the time of W. 1. and many of the most antient of them are directed The saurario Baronibus de Scaccario and the Mirror of Justices which my Lord Coke saith in his preface to the Tenth Report was for the most part written before the Conquest speaks of this Court and of the deux Chivalier qui solient estre appellez Barons in this Book and in the Register and in the black Book here where there is mention of the Exchequer is also mention of the Barons the principal Judges of the Court. But with this matter I have troubled you too long what hath been said upon it was to clear a mistake touching the Antiquity of this Court and for the honour of our Law and of this Court and of your Office in it being so antient as can scarce be parallell'd in any other Nation With the Antiquity of your Office there hath always gone along great dignity and honour Sir Roger Owen in his manuscript discourseth plentifully on this subject and cites Prudentius who calleth Judges the great lights of the Sphere and Symmachus who stiles them the better part of mankind Indeed in all Nations and times great reverence and respect hath been deservedly given to them we find the Judges often named Lords and Barons in our Books of Law and Records as 14 Henry 4. fol. 6. recites that it was determined for Law in temps Monseigneur Robert Thorpe and in the Stat. 21. R. 2. cap. 12. mention is of my Lord Wi. Rickel who was a puisne Judge of the Common-Pleas the like is in many other places of our Year-Books and Records When magna Charta was made it seems that the Barons of the Exchequer and the Kings Justices were held for sufficient Peers of Barons On this occasion we may observe amongst many others in the Lieger-Book of the Abbey of Peterburgh two notable Records of fines levyed the one 29 Henry 2. before divers Bishops and Ranulpho de Glanvill Justiciario domini Regis Richardo Thesaurar W. Maldunt Camerar and divers others coram aliis Baronibus ibi tum praesentibus And another 6 R. 1. before the Archbishop of Canterbury and other Bishops aliis Baronibus as Justices of the Common-Pleas Hoveden P. 702. noteth of the great Chancellor in R. 1. 's time who was Custos Regni in the Kings absence nihil operari voluit in regimine regni nisi per voluntatem consensum sociorum suorum assignatorum per consilium Baronum scaccarii In these and many the like places the word Baron cannot signifie that meaning wherein it was sometimes taken of the Saxon Idiom for a free-holder as Barones London the Freemen of London Barones quinque portuum the Freemen of the Cinque Ports and Court Baron the free-Suitors Court but it must be taken in the places before cited for the name of Dignity and Title in this Kingdom which hath been so antient and was and is of so great honour and esteem amongst us You see what Dignity and Honours and deservedly the custom of this Nation affords unto their Judges Aristotle in his Politicks tells us that the Magistrate is set above the People
be given them nor would they agree to surrender to Mercy but upon Reverence which was consented unto That they took the Governour and the Capt. of the Moss-Troopers and 60 Souldiers That two of the most notorious of them and the Captain were shot to death upon the Place They took in it many Arms 60 Horse which they had taken from the English and released 10 English prisoners and demolished the House That Middleton laid down his Arms upon condition that the King should be forthwith Crowned and the Estates and Kirk ordered him to take his Command again That Recruits were come from England to the Army That the G. and his Officers kept a Fast-day The House had a very long and smart Debate touching the Act for putting all the Books of Law and 〈◊〉 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 one of the Members delivered his Opinion in the House to this Effect 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 acknowledge That he hath several both Foreign and Domestick Authors whom he may follow therein The Foreign Authors are Jovius Aemilius Bodine Hottoman Dynothus Volateran Berault Berkley Choppinus Uspargensis Malines and Polydore who affirm this erroncous 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 it this point Of our own Countreymen they have Paris Malmesbury Matthew Westminster Fox Cosins Twyne Heyward Milles Fulbeck Cowell Ridley Brown Speed Martin 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 Manuscrit who saith that Roger Wendover and Mat. 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 Justices of the Peace erected Tenures brought in Trials by 12 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 W. I. Sir Roger Owen shews at large that Livery of Seisin Licenses or Fines for Alienation Daughters to inherit Trials by Juries Abjurations Utlaries Coroners Disposing of Lands by Will Escheats Gaoles Writs Wrecks Warranties Catalla Felonum 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 Customary 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 Counsel of their Prelates Earls Barons and other wise men which shews the forms of their Parliament 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 Customary of Normandy was composed in our King E. 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 Customary was a meer Translation of our Law-Book Glanvill as the Book of Regia Majestas of the Laws Scotland is and the like of the Laws of Burgundy They further add That the first establishing of the Customary of Normandy was in H. 1. his time and afterwards again about the beginning of E. 2. his time If the Laws in the Customary were introduced there from England it will then be granted that the Laws of England were not inoroduced here by William the Conqueror But I think it very clear that their Laws were brought to them cut of England and then you will all agree to the Conclusion Our King H. 1. Conquered Normandy from his Brother Robert and was a Learned King as his Name Beauclerk testifies whom Juo calls An especial Establisher of Justice Sequerius relates That this King established the English Laws in Normandy Herewith do agree Gulielmus Brito Armoricus Rutclarius and other French Writers who mention also that the Laws in the Customary 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 Alenson Revile who in his Comment upon the Customary saith That all the Laws of Normandy came from the English Laws and Nation In the Customary 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 1. 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
the Militia which was appointed to be debated the next day in the morning 4. The Commissioners being met Sir Edward Hyde in the first place would have had it for granted that the whole power of the Militia by the Law of England is in the King onely This by Mr. Whitelocke was deny'd to be so very clear and he undertook to make it out that our Law doth not positively affirm where that great Power is lodged and doubted not but to satisfy the Commissioners fully in that point Whereupon it was moved that a day might be appointed to hear their Arguments when the Earl of Southampton Interposed saying My Lords We have already spent much time in debates touching the matters of Religion and although I should be very glad to hear both these worthy Gentle-men speak to this point by whom we may receive much satisfaction therein yet I think that it will more conduce to the setling of our business to decline any debate upon this matter and to see how far we can meet one another in the composure of the business upon this Proposition Hollis My Lords I think it is very well moved by that Noble Lord for saving of our time and more for endeavouring to compose any difference that may be upon this Proposition by coming as near as we can to satisfy one another and therefore though I should account the time very well spent to hear these worthy Gentlemen who I believe would very much inlighten our judgments in this matter yet I doubt it may not tend so much to a composure of it as may be by declining the Debate Several others of the Commissioners spake to the same effect with the Earl of Southampton and Mr. Hollis and thereupon it was thought fit to lay aside the debate between Sir Edward Hyde and Mr. Whitelocke and the Commissioners proceeded in the Treaty upon the Particulars of the Propositions of the Militia The Commissioners of both Kingdomes at their return to their Quarters gave Whitelocke thanks for encountring Sir Edward Hyde upon the point of Right of the Militia wherein he was so confident and said the Honour of the Parliament was concerned therein and vindicated by him The Assembly sent to the Commons a further part of the Directory for Government of the Church in a Presbyterial way as to the point of Excommunication and that some of them dissented in that point The Lords agreed to the Ordinance for the new Model of the Army under Sir Thomas Fairfax with some Alterations and Additions that the Officers should be named by both Houses That all the Officers and Souldiers shall take the Covenant and submit to the Church Government agreed on by the Houses and that every Lord Lieutenant be of the Committee of that County for this Ordinance Many Orders about the Scots Army moving Southwards and for supplies for them and for an establishment for the Garrison of Portsmouth Captain Hacker going to fortify Sir Erasmus de la Fountains house near Malton a party of the King 's came upon them but were repulsed and during the fight some of Hacker's men running into the house for powder set two Barrels on fire which blew up part of the house but withall discovered plate and jewels to the value of 600 l. that were hid there by the Enemy Colonel Hastings for the King sent out Warrants for Carriages to fetch Hay to Ashby the Parliaments Forces sent out their Warrants to bring the Hay to Coleorton but Hastings was too quick and had compelled the Country to load the Hay and with a strong guard was bringing of it to his Garrison Captain Temple the High Sheriff of the County having notice thereof with his Troop got between them and Ashby in the van and three Troops of Derby following in the reer after a little engagement Hastings his men fled and were routed and pursued 40 of them taken Prisoners 60 horse Arms and all their Hay 5. Debate about the Ordinance for the new Model and Orders concerning Musters and pay of the Army and about the Navy and for guards of the fishermen A Committee of both Houses to consider of sundry Letters and Papers concerning the County of Leicester Letters from Captain Cranley from Portsmouth informed that the Lord Brabson Sir Henry Tichburne Sir James Hare and the rest of the King's Commissioners for the Irish business lately taken at Sea had Letters and Papers taken about them of great consequence which with the Prisoners were sent up to the Parliament who referred the business to the Committee of both Kingdomes to be examined The point of Peerage in the Tryal of the Lord Macquire was argued in the King's Bench and the opinion of the Court was that he should be tryed there by an Ordinary Jury The King's Commissioiners at Vxbridge kept a solemn Fast and the like was in all the King's Quarters for the good success of the Treaty and in the evening they delivered a Paper to the Parliaments Commissioners that the next day they would give their answer touching the Militia 6. The debate touching excommunication put off Report of the Bill for taking away of Bishops and those of Ireland added to be abolished and several Votes concerning Church Government sent up to the Lords Some new Sheriffs appointed Orders for supplies of Abbington Colonel Gerrard besieged Cardigan Castle kept by Lieutenant Colonel Poole and by stratagem got into the Town and cut down the bridg to prevent Relief coming to the Castle where they wanted Provisions Gerrard sent a summons to the Castle that if they did not surrender by a day they should have no quarter Poole and his men returned Answer that they had divers raw hides which when they wanted provisions they would first eat and when they were spent then they would come out and fight for their lives but would not surrender the Castle In the mean time Poole sent to Major Laughorne for relief who came with a strong party and finding the bridge broken down he by faggots and pieces of wood got his men over the River and sent an arrow into the Castle with a Letter to give them notice of his coming and that they should Salley out upon the Enemy the same time that he fell on All which was performed so successfully that Gerrard's Forces were all routed 200 of them slain upon the place 4 brass pieces of Ordnance 600 Arms and 150 Prisoners taken whereof Major Slaughter divers inferiour Officers and Dr. Taylor The King's Commissioners gave in their Answer about the Militia wherein they agree to settle the Militia for three years and in the hands of twenty persons ten of them to be chosen by the King and the other ten by the Parliament And that it shall be High Treason for any to continue such power in the Militia after three years And for the Militia to be settled in Scotland they gave no Answer at all though the Papers delivered
need of it nor of Cloaths more than to cover nakedness That they will not defend themselves by Arms but will submit unto Authority and wait till the promised opportunity be offered which they conceive to be at hand And that as their Fore-fathers lived in Tents so it would be suitable to their condition now to live in the same with more to the like effect While they were before the General they stood with their Hats on and being demanded the reason thereof they said because he was but their fellow Creature being asked the meaning of that place Give honour to whom honour is due they said their mouths should be stopped that gave them that offence This was set down the more largely because it was the beginning of the appearance of this opinion and that we might the better understand and avoid these weak perswasions The Council of the Army after a solemn seeking of God by prayer cast Lots which Regiments of the old Army should go for Ireland there were fourteen Regiments of Horse and fourteen of Foot of the established Army which came to the Lot And it being resolved that four Regiments of Horse and four of Foot should go upon the service ten Blanks and four Papers with Ireland writ in them were put into a Hat and being all shuffled together were drawn out by a Child who gave to an Officer of each Regiment in the Lot the Lot of that Regiment and being in this impartial and inoffensive way no Regiment could take exceptions at it The Regiments whose Lot it fell to go were of Horse Iretons Scroopes Hortons and Lamberts of Foot Ewers Cooks Hewsons and Deans Several troops of Dragoons and all the Officers whose Regiments were to go expressed much forwardness Letters from the Hague that the Swedish Ambassadour there saluted the King of Scotland and condoled the death of his Father and that he and the Danish Ambassadour invited the States to joyn with them in assisting the King of Scots to gain his birth-right 21. Monies charged upon the Excise Ordered to be taken off from that Receipt and charged upon Deans and Chapters Lands Order that the Speaker be Authorised from Time to Time to Sign such Letters as should be agreed on by the Council of State to be sent to the States of the United Provinces The General sent an Order for Major General Laughern Colonel Poyer and Colonel Powell to draw Lots which of them should die the other two to be spared their lives In two of the Lots was written Life given by God the third Lot was a Blank the Prisoners were not willing to draw their own destiny but a Child drew the Lots and gave them and the Lot fell to Colonel Poyer to die The Commissioners sate in Chancery by seven a Clock in the Morning and heard many motions because two of the Motion daies in this Term were disappointed by the Fast-days After the Motions they heard eleven Causes then they rose 23. An Act recommitted for setting the Poor People to work and punishing Vagrants The Act for punishing Criminal matters by the Court of Admiralty passed The Act passed for repealing the former Act for observation of a Monthly Fast and requiring such to be kept as Fast-days which should be appointed by special order of Parliament Licence given for the French Ambassadour to transport eight Horses and eight Mares Custom Free The Amendments passed to the Act for Sale of Deans and Chapters Lands and Rowland Wilson Esq was Voted one of the Trustees Vote for one hundred pounds per annum for Mounsieur du Moulin out of the twenty thousand pound per annum for Augmentation to Ministers Some hundreds of Women attended the House with a Petition on the behalf of Lilburn and the rest it was reproachful and almost Scolding and much to the same effect with former Petitions for them An Act passed to authorise the Court of Admiralty to proced to Sentence in divers causes notwithstanding prohibitions to the contrary Colonel Popham one of the Admirals was out at Sea with one Squadron of Ships Colonel Blake and Colonel Dean the other two Admirals were with another Squadron in the Downs A petition to the General and Officers of the Army for poor Prisoners for debt to be released A Flemish Ship bound for Ireland was taken with sixty Field Officers and one hundred other Officers Cavaliers Letters from Scotland that the Levies of Souldiers there go on apace that divers new Insurrections were in that Kingdom that their new King was unwilling to put away Montross from him The Council of State wrote to Major General Ashton to disband Captain Bambers Troop by force and to secure the Officers of it because they had disobeyed the Orders of the Council and taken Free-quarter 24. Upon a Petition from Kendal referred to the Council of State to consider of Convoys for Merchants Ships and to send to Hamburgh and other parts for Corn to be imported A Petition from Colonel Poyers wife for sparing her Husbands life laid aside The Women were again at the House with a Petition in the behalf of Lilburn and the rest but could not get it received Orders for six Commissioners of the Customs and about other Officers of the Customs The King put off his answer to the Scots Commissioners with him at the Hague telling them he was to receive the Sacrament keep a day of Humiliation and entertain several Foreign Ambassadours and until these things were over he desired to be excused The Prince Elector gave the King a Visit had a Chair set for him was desired to put on his Hat and parted friendly from the King who sent the Lord Treasurer Cottington and the Lord Keeper in his name afterwards to give the Prince Elector a Visit 25. Upon a Letter from the Earl of Northumberland the House Voted That the Lady Elizabeth one of the late Kings Children should not have leave to go beyond Seas That the Kings Children should not be put under the tuition of any Member of Parliament That Sir Edward Harrington should be intrusted with them That three thousand pound per annum be allowed to him for their maintenance The forms of the new Coyn were agreed on by the House to be thus On the one side to be the Arms of England and a Laurel and a Palm on each side with this inscription about it The Commonwealth of England On the other side of the Coyn to be the Arms of England and Ireland with this inscription God with Vs Order that the Attorney General bring in Indentures and an Act for establishing this form of Coyn. The Women Petitioners again attended at the door of the House for an answer to their Petition concerning Lilburn and the rest The House sent them this answer by the Sergeant That the Matter they petitioned about was of an higher concernment than they understood that the House
other part of France but are our antient native Laws I must now come to endeavour 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 Williams time past 4 descents in that part of France and it is improbable that they in so short a time should loose their native tongue and take up and use the Language of another Country which was conquered by them The Normans came from Sueden 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 Ulphilus holds That the Dutch Tongue came from the Goths Jornandus saith The Goths Tongue came from the Dutch all agree that between those Languages and the French there is no Affinity It is so improbable that D. 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 Ignorance we should happen to break them But it hath been further Objected If D. William did not cause our Laws to be written in French what then should be the reason that the Grand Customary 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 among them but made use of those French among 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 of the Norman and that the Normans understood that Language better than the English and thereupon the Customary was written in the French Tongue But it doth not therefore follow that D. 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 D. 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 Ethelwoulf Ethelred and other Saxon Kings Married into the Royal Blood of France Glabor notes That before the time of D. William the Normans and English did so link together that they were a terror to Foreign Nations Ingulphus saith That the Saxon Hand was used until the time of Kind Alfred long before the time of D. William and that he being brought up by French Teachers used the French Hand And he notes many Charters of Edred and Edgar written in the French Hand and some Saxon mixt with it as in the Book of Doomesday 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 W. 1. 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 W. 1. 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 King Hen. 2. who was a Frenchman born and had large Territories and Relations in France many of his Successors had the like and very much to do in France and with Frenchmen 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 Englishmen were resident and conversant the like was when the Frenchmen were so conversant in England Matthew Westminster writes that he was in hazard of losing his Living because he understood not the French Tongue and that in King H. 2. and King Stephen ' s time who had large Dominions in France their Native Countrey 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 R. 1. his time Preaching in England was in the French Tongue probably Pleading might be so likewise and in King John's time French was accounted as the Mother Tongue There are scarce any Deeds of our Kings in French before H. 2. his time the most are in E. 1. and E. 2. their time That our Laws were pleaded and written in French before E. 3. his time appears by the Statut. 36 E. 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 Latine This is oneGround of the mistaken Opinion of Lambert Polydor Speed and others that D. Willam 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 this Statut. 36 E. 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 Latine before the Norman Invasion as appears bp the Ancient Rolls of Mannors and Courts Baron and our Old Authors Glanvile Bracton Tilesbury Hengham Fleta the Register and Book of Entries The Records at Westminster and the Tower and other Records yet extant are in Latine and many Books of our Law in Latine were translated into English about E. 3. his time Most of our Statutes from E. 1. his time till about the middle of H. 7th ' s Reign are Enrolled in French notwithstanding this Statute 36 E. 3. except the Statute 6 R.