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
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
are said to be committed in Parliament and ought not to be punished in this or any other Court except in Parliament The Kings Attorney moved the Court to over-rule the Plea though he did not demur to it but the Court would not and gave a day to joyn in Demurrer and to have the point argued The Attorney exhibited an information in the Star-Chamber against Mr. Long for that he contrary to his Oath when he was made Sheriff and was by his Oath to keep within his County yet he did come to Parliament and serve as a Member there and in the time of Parliament resided out of his County For this the Court sentenced him to pay Two thousand Marks to the King for a Fine to be imprisoned in the Tower and to make a submission In Hillary Term the Information in the King's Bench against Sir John Elliot and the rest touching the point of the Jurisdiction of the Court came to be argued All the Judges severally declared their Opinions That in this case the King's Bench hath jurisdiction of the Cause And the Defendants were ruled to plead further but they would not put in any other Plea Whereupon Judgment was given against them upon a Nihil dicit that they should be imprisoned and not delivered till they had given Security for their good behaviour and made a submission and acknowledgment of their Offences and they were also fined Anno 1630. Anno 1630 In Easter Term Sir Henry Martyn Dr. of Laws and Judge of the Admiralty made a great Complaint to the King against the Judges of the King's Bench for granting Prohibitions against that Court and all the Judges were before the King about it and they mannerly and stoutly justified their proceedings in those Cases to be according to Law and as their Oaths bound them Sir Henry Vane was sent to the Queen of Bohemia about a Marriage for her Son with the Emperor's Daughter and the Son to be brought up in the Court of the Emperor to which the Queen would by no means hearken The Venetians were set on to mediate a Peace between England and France which took effect and Sir Thomas Edmonds was sent to take the Ratification thereof by the King of France by his Oath and signing of it Car. 5 A Book of Sir Robert Dudley's making being of purpose to increase the King's Revenue and containing in it somewhat in prejudice of the proceedings as to the Parliament was dispersed by the Earls of Bedford and Clare Sir Robert Cotton Mr. Selden and Mr. St. John for which they were committed to prison but Sir David Fowlis discovered the Author and so the matter ended and the prisoners were released William Earl of Pembroke died suddenly as was predicted to him by an Astrologer Upon the 29th of May 1630 the Queen was brought to Bed of a Son Prince Charles to the exceeding joy of the Subjects and the same day a bright Star appeared shining at Noon-day in the East About Midsummer this year Gustavus Adolphus King of Sweden landed in Germany with about 8000 Men and as soon as he came on shore he kneeled down upon the ground his Officers and Soldiers round about him and there gave thanks to God for his safe Arrival and prayed for his blessing upon that Action he prayed very pathetically in the presence of his Army and incouraged them by Texts out of holy Scripture himself being the Preacher The Prince Palatine sent his Plea to the Dyet at Leypsick and Sir Robert Amstrother was sent thither from our King to Negotiate the Palsgrave's Restitution but he received only a general Answer That at present the Affairs of the Empire were so pressing that they could not take into consideration the business of the Palatinate but that shortly it should be done and to the satisfaction of the King of Great Britain Dr. Leighton a Scotch-man for his Book Intituled Sions Plea dedicated to the last Parliament counselling them to kill all the Bishops by smiting them under the fifth Rib and railing against the Queen calling her a Canaanite and Idolatress had the Sentence of the Star-Chamber executed upon him he was stygmatized his Ears cut off and his Nose slit and imprisonment Sir Humphrey May Vice-chamberlain of his Majestie 's Houshold and one of his Privy Council died the 10th of June 1630. The Peace with Spain was concluded in November and the Articles solemnly signed and sworn to be observed upon a Latin Bible brought for that purpose by Bishop Laud. At this time the Face of War was over most parts of Christendom in Italy and France it was begun and in Spain also France fuller of fears and Germany full of the calamities of War and infested on all sides with potent Enemies Gustavus Adolphus King of Sweden being entred into Germany carries on his Designs vigorously and successfully first he declares the Cause of his Invasion For succour and relief and assistance to the Protestant Princes and the Cause of Religion so much oppressed by the Emperor and the Popish Party The Emperour answers the Declaration and justifies his Proceedings It is certain that the King of Sweden had not the least ambition or thought of beginning a War in Germany wanting Strength and Treasure to carry on so great a Design and therefore for a long time would not hearken to any Motions or Proposals made to him about that matter until he was earnestly sollicited and pressed by the Protestant Princes of Germany to take their Cause and Oppression and the Cause of all the Protestants in Germany into his Compassion and Intreated for the Cause of God and of his People to assist them for their deliverance from the miserable and unjust oppressions and persecutions under which all the Protestant Party did then groan by the Emperor's violence and cruelty towards them And yet it was then after many denials and excuses and dissatisfaction in himself as to the lawfulness of his undertaking this action that at length he was prevailed with by their Importunities and fair Promises but more by the sadness of the condition of the poor Protestants in Germany and the danger to the Protestant Religion there and in his own and all other Countries designed to be rooted out to pity their Estate Paries cum proximus ardet and for defence of the Protestant Religion to confederate with the Protestant Princes of Germany He thereupon made a League with them and raised an Army though but a small one and landed happily as is before mentioned and some of the Princes of the League joyning with him they went on prosperously through the blessing of God going along with them The particular proceedings of this great King Generalissimo of the Protestant Army are set down in the Histories of that War therefore I shall not insert them here But shall only in the general say this that the relation of those Affairs by our later Chroniclers is so
appointed for the two Ministers to attend the Commoners Sir Peter Killegrew was sent with the Letters to the King and was to bring back a List of the King's Commissioners for the Treaty and of their Attendants An Ordinance read and referred to a Committee of the whole House for laying the Assessment for the Armies upon the several Counties They appointed a day to consider of the business of Dunnington Castle and the Earl of Manchester The Lord Savile Earl of Sussex the Lord Piercy and the Lord Andover were consined at Oxford The business of Dunnington Castle and of the Earl of Manchester was taken into consideration and a weeks time given for the Earl to be heard therein if he please An affront done to the Commissioners of Excise in Lancashire was referred to examination and the House resolved to be severe in upholding the power of the Commissioners The Sergeant at Arms was sent to apprehend one as a Delinquent for serving of a Sub poena upon a Member of the House of Commons Goring with his forces coming before Christ-church were beaten back by Major Lower and many of them killed The Commons proceeded in the business of the new Model of the Army and nominated Sir Tho. Fairfax to command in chief and Colonel Middleton Holborn Fortescue and Barkley tobe four of the Colonels Then they appointed a Committee to consider what honour should be conferred on the Earl of Essex for his fidelity and good services to the publick the like for Sir William Belfour and to settle the payment of their Arrears to such as should not be employed in the new establishment The Commons proceeded upon the Ordinance for the new Assesment Colonel Lambert was ordered to speed down into the North to take care of the forces there he being Commissary General of the Lord Fairfax his Army when Sir Thomas Fairfax should come up Colonel Holborn took in the King's Garrison at Sydenham-house and therein about 100 Prisoners and the High Sheriff of Somersetshire and ten Commissioners of Array and after that he fell upon the Lord Hopton's forces going to joyn with Greenvile took some hundreds of them and drove the rest to Bristol The King made Prince Maurice General of Worcester Hereford and Shropshire and some of his forces began to fortifie Cambden-house Letters from Secretary Nicholas intercepted gave no hopes of Peace upon the intended Treaty Sir Peter Killegrew returned from Oxford with the King's Answer concerning the Treaty and the names of the King's Commissioners with a Safe Conduct and Propositions from the King to be treated on The Safe Conduct was inclosed in a Letter from P. Rupert to the Earl of Essex and was to this effect CHARLES REX Charles by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To our Generals Lieutenants General Commanders in Chief Generals of Towns Colonels Lieutenants Colonels Captains Officers and Souldiers belonging to any of our Armies or Garrisons and to all other our Ministers and loving Subjects to whom these presents shall come Greeting Our Pleasure and Command is that every of you permit and suffer that Algernon Earl of Northumberland Philip Earl of Pembroke and Montgomery William Earl of Salisbury Bazil Earl of Denbigh Thomas Lord Viscount Wenman Denzil Hollis William Pierpoint Sir Henry Vane Junior Oliver St. John Bulstrode Whitelocke John Crew Edmond Prideaux for the Lords and Commons assembled in Parliament of England at Westminster and John Earl of Loudoun Lord Chancellour of Scotland Archibald Marquess of Argile John Lord Maitland John Lord Balmerino Sir Archibald Johnston Sir Charles Erskin George Dundas Sir Jo. Smith Mr. Hugh Kenedy and Mr. Robert Berkley for the Estates of the Parliament of Scotland together with Mr. Alexander Henderson and their Retinue mentioned in a List annexed together with the Retinue of the Scottish Commissioners not exceeding in all the number of 108 persons together with their Horses Coaches and all other Accommodations for their Journey may repair to Uxbridge from London stay there and return at their pleasure and that they and any of them be permitted freely and as often as they shall please to go themselves or send any of their Retinue to and from Uxbridge and London without any let hinderance interruption or molestation whatsoever and to these our Commands we require your due obedience as you tender our service and will answer the contrary at your utmost perils Given under our Signet at our Court at Oxford the 21. day of January 1644. By His Majestie 's Command Edw. Nicholas The King's Propositions were Signed likewise Edw. Nicholas The Names of the King's Commissioners appointed for the Treaty for whom Prince Rupert desired a Safe Conduct from the Parliament were these The Duke of Richmond Marquess Hertford Earl of Southampton Earl of Kingston Earl of Chichester Lord Seymour Lord Hatton Lord Capel Lord Culpepper Sir Orlando Bridgman Sir Edward Nicholas Secretary Sir Edward Hyde Sir Richard Lane Sir Thomas Gardiner Mr. John Ashburnham Mr. Geoffrey Palmer with Dr. Stewart Dr. Laney Dr. Shelden and their Attendants in all to the number of 108. They were to meet with the Parliaments Commissioners on Wednesday the 29. of January at Vxbridge upon the Treaty for Peace The States Ambassadours were satisfied with the Answer of the Parliament to their Papers and said they would acquaint the States therewith expressing their good affections to the Parliament The Commons in a grand Committee further debated the Ordinance for new Modelling the Army and inserted therein the names of Sir Thomas Fairfax and of Major General Skippon They proceeded upon the Directory for Church Government and voted that several Congregations be under one Classis and that the Church be governed by Congregational Classical Synodical Assemblies and that there shall be one at least in every particular Congregation to labour in the word and doctrine Both Houses referred the Papers of the Treaty to the Committee of both Kingdoms to consider what is fit to be done and ordered that the Ministers in their several Congregations on the next Wednesday the day of the publick Fast and of the beginning of the Treaty should pray to God for his blessing upon it Both Houses ordered that the Lord Macquire should come to his Trial in the King 's Bench. A difference was between the two Houses touching the Safe Conduct for the King's Commissioners the Committee of both Kingdoms having altered some of their Titles given them by the King since the Great Seal was carried away from the Parliament as the Earl of Chichester they called Lord Dunsmore Lord Culpepper Sir John Culpepper Lord Hatton Sir Christopher Hatton and the new made Knights they called Mr. Hyde Mr. Lane and Mr. Bridgeman The Lords gave their Reasons why the new Titles should be given in the Safe Conduct the Commons gave Reasons against it as contrary to one of their Propositions and at length the Titles were agreed to be
unless the King would grant those Propositions it would be in vain to treat of any peace There was also much discourse about the acknowledging you to be a Parliament the Earl of Lindsey said That the King had acknowledged you a Parliament by the words Lords and Commons of Parliament We answered That this was the same style his Majesty gave to the Assembly at Oxford and we could not be satisfied with that acknowledgment Then the Earl of Lindsey demanded of us how we would be acknowledged We told him thus The Lords and Commons assembled in the Parliament of England at Westminster After this we returned to our Lodgings and acquainted our fellow Commissioners with the persons that were at the Earl of Lindsey ' s Chamber when we were there and with the matter of our discourse with them In all our discourses Mr. Hollis and my self did justifie your Propositions and vindicate your Proceedings Mr. Speaker It is no small trouble to my thoughts to have my Name questioned in this House but I am comforted in my own integrity and innocency and in my Accuser but chiefly in my Judges to whom I most humbly and most willingly submit my self After Whitelocke had spoken there was much debate in the House whether this Paper of the Lord Savile were an Accusation or Charge against them Many Gentlemen argued That it was against the Privilege of the House to take it for an Accusation being from the Lord Savile who was an Enemy come from the King's Quarters and one in contempt to both Houses of Parliament for refusing to name the person from whom he received the Letter concerning Mr. Hollis and therefore committed a close prisoner That he had not discovered this to the Parliament in five or six Months together that he had been in their quarters but after he had been complained of by Mr. Hollis about a Letter and Mr. Whitelocke was in the Chair of the Committee appointed to examine the business of that Letter Then the Lord Savile brought in a new Accusation both against Mr. Hollis and Mr. Whitelocke the Chairman to take off his testimony for Mr. Hollis Others went upon this ground That this business might be committed to see if the Lord Savile would avow his Letter and Paper and by what testimony he could make it good and that Mr. Hollis and Mr. Whitelocke might have reparation and be cleared from this aspersion But these were not their Friends and moved this out of a design to bring the business before a Committee to be examined more than out of respect to them After a long debate it was at last referred to a Committee to be examined in the general and power given to the Committee to examine any Member of the House and a Message sent to the Lords to desire that the L. Savile might be examined at this Committee Those who were of a contrary party to the Earl of Essex set their interest upon it to ruine Mr. Hollis whom they found to be a great Pillar of that Party and with him to ruine Mr. Whitelocke they being both involved in this business but they had not the same envy against Mr. Whitelocke as they had against Mr. Hollis nor could they well sever them But now having got it referred to a Committee they resolved there to put it home and were full of expectation to destroy them both which was their intention 5. A Letter from the Portugal Agent and his carriage to the Parliament referred to a Committee and how the Parliament might be vindicated therein Order that the Militia of London should put in execution the Ordinance for searching for Papists and Delinquents Proposals from the Governour of Windsor for supply of that Garrison presented to the House from the Common Council of London and referred to the Committee of the Army Sir Thomas Fairfax and Colonel Massey marched from Blandford towards Taunton their Scouts and Goring's had some Encounters but Goring understanding that Sir Tho. Fairfax was advancing towards him drew off all his horse and foot from before Taunton and went towards Exeter The Lords sent a Message to the House of Commons in answer of theirs yesterday That the Lord Savile if he pleased might be examined from time to time at the Committee to whom the business of his Letter was referred 7. Divers of Westminster in the name of the City petitioned the House for Maintenance for the Lecturers in Westminster Abbey out of the Revenues belonging to the Dean and Chapter there Thereupon an Ordinance was read and committed for regulating the College of Westminster and the Petitioners called in and acquainted with the care of the House in their business and had the thanks of the House Letters from Scout-master General Watson informed that the Enemy was wholly drawn off from before Taunton An Ordinance sent up to the Lords for making Mr. Jackson Lecturer at Gloucester and a 100 l. per annum to be settled on him and the House ordered Col. Morgan to be Governour there An Ordinance sent up to the Lords for One percent for the Captives in Argiers The King's Forces from Bolton Castle surprized Raby Castle belonging to Sir Henry Vane but were again close blocked up by Forces raised by Sir George Vane The Scots Army were on their march towards Worcester as far as Birmicham The Marquess of Argyle was in pursuit of Montross over the Hills and the Parliament of Scotland being now sate the Parliament of England appointed the Earl of Rutland the Lord Wharton Sir Henry Vane senior Sir William Ermine Mr. Hatcher and Mr. Goodwyn to be their Commissioners in Scotland The King with about 4000 horse and foot was at Hereford to raise 5000 l. Assessment and some Recruits The Committee of Salop took in Cause Castle Hawarden Castle and Lynsell House belonging to Sir Richard Lucy and sate down with their Forces before High Arcall the Lord Newport's House In the Afternoon Mr. Hollis and Mr. Whitelocke attended the Committee touching my Lord Savile's Accusation where Mr. Samuel Brown had the Chair and was no friend to them in this business but pressed matters against them more than a Chair-man was to do The Lord Savile was brought into the Committee and his Letter and Paper read to him which he owned as his and his hand to them and that he would justifie them to be true upon his Soul and his Life Mr. Hollis and Mr. Whitelocke averred the contrary but with less passion and with less indiscretion than the Lord Savile who being put to it by the Committee could not make any proof of one Particular mentioned in his Papers more than they themselves acknowledged which was the same in effect that they had said before in their Narratives in the House Every particular Clause in his Papers were severally read and he heard to them and they to make their Answers but they both did it with this reservation That what they did in this was out of their willingness
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