dat cum aliquâ muliere alicui in maritagium ità quod ab omni Servitio terra illa sit quieta à se haeredibus suis versus capitalem Dominum acquietanda And Bracton expresly lib. 2. cap. 7. Quoniam terra data Bastado in maritagium sicut aliis vel Bastardo per se in se tacitam habet Conditionem vel expressam de reversione c. See also Sir Thomas Manwaring's Law-Cases mistaken pag. 10 11. So that Lands might be given in Free-Marriage to any man with any woman whomsoever without any exception and if with any woman whomsoever then certainly with a Bastard and Bracton more expresly that Lands might then be given to a Bastard in Marriage neither are Bastards any where disallowed by the Law either in Glanvil or Bracton for having Lands given in Free-marriage 2. That the Law was so taken in the time of King John and upwards appeareth by sundry Precedents of those elder Ages whereby Lands were given in Free-marriage with Bastards See one in my Book of Antiquities pag. 112. wherein Randle Earl of Chester Sir-named de Gernouns gave unto Geva Ridel Daughter of Earl Hugh that was Hugh Lupus Drayton in Free-marriage with the Appurtenances even as Earl Hugh gave the same unto her in Free-marrige This Deed was made about the end of Hen. I. or King Stephen And that Geva was a Bastard Ordericus an Historian of good Credit and Contemporary with Geva plainly shews for lib. 4. Ecclesiasticae Historia pag. 522. He tells us that Hugh Lupus had many Bastard-Sons Bastard-Daughters yet nameth none of them in particular è Pellicibus plurimam Sobolem utriusque sexûs genuit quae diversis infortunijs absorpta penè tota periit Exmentrudem filiam Hugonis de Claromonte Beluacensi uxorem duxit ex quâ Ricardum Cestrensis comitatûs haeredem genuit qui jnvenis liberisque Carens naufragio periit So that having given an account of his Wife and his Son by her who dyed young and without Children he would certainly have given an Account of his other Children by his Wife if he had had any other by her but â—o put it out of all doubt he tells us afterwards lib. 10. Eccles Hist pag. 787. Ricardus Pulcherrimus puer quem solum ex Ermentrude filiâ Hugonis de Claromonte genuit Consulatum Cestriae Scilicet tenuit so that Earl Hugh only begot Richard on Ermentrude his Wife then by sure consequence out of his words it must needs follow that Geva was was one of the Earl's Bastards she being no Child by Ermentrude his Wife which is clearly proved without a point of Law and cannot by any point of Law be taken off Again if Geva had been a Lawful Daughter by Ermentrude then she would have been sole Heir to her Brother Richard and ought to have had the Earldom of Chester which she never had nor ever claimed See this more fully in my Answer to the Defence of Amicia pag. 35. to pag. 40. and if and shall run to the old Subtersuge and say she might be his Daughter by a former Wife let him prove it and take it and she could be no Daughter by a latter Wife because Ermentrudo survived Earl Hugh her Husband See my Historical Antiquities pag. 114. Other two Precedents we have of Lands granted in Free-marriage with Joan Bastard-Daughter of King John 1. One wherein King John granted to Lewellyn Prince of North-wales in Marriage with Joan his Daughter the Castel of Ellesmere in Shropshire Tenendum ei haeredibus suis qui de eo praedictâ filiâ nostrâ exierint de nobis haeredibus nostris in liberum maritagium Salvis conventionibus inter nos ipsum de terrâ eodem maritagio factis c. Dated Anno Sexto Johannis Regis 1204. See the Deed at large in the Advertisement to the Reader at the end of my book stiled Sir Thomas Manwaring's Law-Cases mistaken pag. 53. transcribed from the Record in the Tower of London 2. Another see in my book of Antiquities pag. 152. wherein it is Covenanted that John the Scot Nephew of Randle Earl of Chester and Lincoln by his eldest Sister shall Marry Helen Daughter of Lewellyn Prince of North-wales and that the said Lewellyn shall give to the said John in Free-Marriage all the Mannor of Budford in Warwick-shire and the Mannor of Suttehele in Worcester shire cum omnibus Pertinentiis sicut Dominus Johannes Rex ea illi dedit in libero maritagio c. This Deed was made about 6. Hen. 3. Anno Christi 1222. Now that the said Joan was a Bastard-Daughter of King John take these several Authorities Vincent upon Brook pag. 204. Speeds History p. 518. Stow's Annalls Augmented by Howes pag. 167 168. Polychronicon Translated into English by Trevisa lib. 7. cap. 33. Cambdens Brittannia in Shropshire pag. 453. also Daniel and Fabian and Milles Catalogue of Honour and Sir Richard Baker's History who do all call her base Daughter of King John and no Author at all calls her Lawful Daughter or reckoneth her among the Daughters by any of his Wives some of them say she was begot by King John on Agatha de Ferrars And therefore these Deeds and Charters which concerned so great Persons whom we cannot suppose to be without Learned Councel about them are clear Precedents showing how the Law was then taken and were good Deeds conveying the Lands with Bastards in Free-marriage in those Ages which Lands were quietly enjoyed accordingly and nothing can be said against them Many other Precedents of like nature in those ancient Ages might without doubt upon diligent search and enquiry be found out For as much then as it appears by the words of Glanvil that Lands might then be given with any Woman whomsoever in Free-marriage and no Bastards then excepted or disallowed by the Law either in Glanvil or Bracton and that clear Precedents of those elder Ages do prove and show that Lands did then usually pass in Free-marriage as well with Bastards as Lawful Daughters and that all Deeds by the rule of Law are to be construed and understood according to the time when they were made How can a Deed of Services given in libero maritagio in the Reign of Henry the Second with one justly suspected to be a Bastard be a sure Argument or any Argument at all to prove her Legitimate Wherefore it is very evident that in those elder Ages as the Law was then taken in the Reign of King John and upwards Lands lawfully might usually did pass in libero maritagio with Bastards as well as with no Bastards howbeit at this day our Law will not permit the same FINIS ERRATA PAge 7 line 16 〈◊〉 deseased for diseased p. 8 l. 12 you for he p 14 l. 10 Index for Judex p. 14 l. 19. The to be expunged p. 15 l. 9 Doterium for Dotarium p. 30 l. 1 Cupitalis for Capitaâ—is p. 48. last line man for men p. 40 l. 22 23. this this expunge the one of them p. 58 l. 19 20. man man expunge the one of them p. 42 mispaged for 59 p. 76. in the margent Seaccarium for Seaccarium
A REPLY TO Sr. Thomas Manwaring's ANSWER TO MY TWO BOOKS Written by Sr. Peter Leycester Baronet Anno Domini 1675. The Second REPLY Together with the Case of Amicia truly Stated LONDON Printed in the Year 1676. THE PREFACE TO THE READER I Received on the 13th of April 1675. a very strange kind of Book from Sir Thomas Manwaring then delivered unto me by his Servant wherein I expected a Book of Arguing to the point of the Controversie between us But behold a book of Railing catching as his usual manner is at every small impertinent thing That I may the sooner come to the Book it self I shall observe only out of his Epistle this one thing How he minceth the Truth in telling the Reader that my Servant did by my Command signifie unto him in a Letter that I would write again and this before Sir Thomas had Printed one word of his Reply So that if he find me thus Stumbling at the first it is well if he do not take me oft Tripping before I come to my Journeys end Whereunto I say that he deals not clearly in his words and declareth not the whole Truth For it is true that I did command my Servant to write unto him but what did I command him to write Was it barely that I would then write again No but to let him know that I had then found some new Precedents which I conceived would clear the point between us and came to my knowledge since I had published my Answer of which I thought good to give him timely notice that I would add them to my Answer already Printed which were omitted therein and this before his Reply was Printed as Sir Thomas here confesseth This was rather an amendment of my former book then writing again de novo for as yet he had published no book against it but this part of the Truth he conceals and if my Servant writ otherwise than to this effect I utterly disown it to be written by my command But before I could get my Addenda Printed he Published a Reply to my Answer wherein were so many Crimes charged upon me that I was forced to a Vindication of my self which I did then put into my Addenda yet not so fully as I might have done See my Addenda p. 8. and also p. 27. And whatsoever I have also written more then what I first intended and declared I have been forced thereunto in my own defence And so I will now briefly come to his Book and hope to shew clearly who Trips most in the Journey he or I and wherein I do Trip it shall be readily confest I think mine will not be found many nor material to the main point but I believe his will be found Fundamental Errors And I could wish that Sir Thomas would as freely confess his Trips as I shall confess mine then the whole business would soon be at an end And herein I shall endeavour all along to avoyd all abloquies wherewith he adoundeth as much as I can for Calumnies and Slanders will find no place among Wise and Good Men and are ever inconsistent with those excellent Christian Graces of Humility and meekness Mobberly May the 18th 1675. A Second Reply Pag. 1. Of his Answer to my two Books HEre he saith that I affirm several times that Glanvil saith that Lands may be given with any Woman in liberum maritagium whereas he saith only they may be given cum quâlibet muliere in maritagium My Reply I did and do yet affirm it and have proved it too see pag. 54. of my former Reply which yet he hath not answered nor do I believe that he can rationally answer my Argument there For though Glanvil hath not these very words Lands may be given with any Woman in liberum maritagium yet he saith it by Consequence drawn clearly out of his words lib. 7. cap. 18. which is the same in effect Nor doth Sir Thomas repeat Glanvil's words aright and yet he is ready upon all occasions to tax me with the like the words of Glanvil lib. 7. cap. 1. are quilibet liber homo terram habens quandam partem terrae sua cùm filiâ suâ vel cum aliquâ aliâ qualibet muliere potest dare in maritagium c. not barely cùm qualibet muliere Pag. 2. Of his Answer to my two Books Here he saith I tell him that I have proved Geva to be a Bastard out of an Historian Contemporary by which Ordericus Vitalis is meant and yet Ordericus saith no such thing My Reply 'T is true I said so and have proved it too See my Answer to his Defence of Amicia pag. 34 35. for though he hath not these very words Geva is a Bastard yet by sure Consequence it follows out of the words of Ordericus that she was a Bastard which is all to one effect and here is another trip of a fallacy in Sir Thomas Pag. 2. Of his Answer to my two Books 1. Here he also saith that I affirm the Common Law is now altered otherwise than by Act of Parliament without quoting any Author 2. And also that I brag of several Precedents where Lands were given in free Marriage with Bastards and yet I prove not these necessary words of liberum maritagium as the Lord Cook calls them were used in any of those grants or that any of those Persons with whom such Lands were given were Bastards My Reply Here is another Trip of Sir Thomas for I have quoted the Lord Cook himself in several Cases for it See my Answer to his Defence of Amicia pag. 23 24 25 26. and yet he is not ashamed to say here I quoted no Author for it And I could yet produce a number of Cases more wherein the Law is altered without any Act of Parliament if it were necessary 2. To the Second I produced those ancient precedents to show that those words in liberum maritagium were not anciently so necessary in grants of free Marriage as the Lord Cook would now have them to be and then Sir Thomas saith that I have not proved any of those Persons with whom such Lands were given in free Marriage were Bastards Sit liber judex as to that of Geva See also my former Reply pag. 38. where Joan Princess of Wales is clearly proved to be a Bastard by the Testimony of most of our Historians but none saying she was a lawful Daughter and that she had Lands given her in free Marriage by King John her Father See my Advertisement to the Reader at the end of my two said Books also my Addenda pag. 3 4. and my former Reply pag. 25. Pag. 3. Of his Answer to my two Books Here he saith I tell him Lewellyn Prince of North-Wales was Divorced from his Wife Joan for which I can neither shew Author nor Record My Reply I do not positively affirm it the words in my former Reply pag. 44. are these if she were Re-married to Audley anno 14.
I guilty of the like offence as he saith I am Shew me if he can where I go about any such a distinction as he here mentioneth or say marriage is two-fold and then give the members of my distinction so absurdly as he there hath done I wonder he is so disingenious either to deny the one or affirm the other See his Answer to my Addenda pag. 7. and my former Reply thereunto pag. 20 21. I appeal to all Readers and yet in the 19th pag. of this Answer to my two books he tells us it is the want of my understanding which causeth me to blame him for what he there so saith and then runs on in a long harangue to no purpose telling us that maritagium Servitio obnoxium is the Elder Brother c. Pag. 24. Of his Answer to my two Books Here he saith that I indeed do tell him that those Mannors Budiford Suttehele were given to the said Lewellyn in libero maritagio But the Deed lately belonging to Somerford Oldfield Esquire doth prove no such thing but doth only prove that the said Lewellyn did mistake himself and did think that they were given him in free-marriage when they were not so given My Reply Oh fine a pretty Answer indeed for though in the Deed it be said Sicut Dominus Johannes Rex ea illi dedit in libero maritagio yet here saith Sir Thomas Lewellyn mistakes himself and thought it was so given when it was not it is not in the Deed mihi dedit but illi dedit and by consequence could not be mistaken by Lewellyn only if it were mistaken but by all others also then present and especially by the Writer of the said Deed But whether was Lewellyn and the Clerk that made the Deed and all others then present more like to know the truth hereof then Sir Thomas now living 450. years after that Deed made Every man may see the weakness of this Answer Sure this may stand for a Trip with a derry-down but he hath so many of them that I shall forget to count them all Ere while pag. 3. when I am put hard to it saith he then I say the Roll is mis-writ Very well but here he denys the very words of the Deed and avers against a Record and yet gives no reason for it neither What follows pag. 26 27 28 29. are all tedious things according to his custom and little or nothing to the point But pag. 26. and in other places else-where when any thing is said by him either not true or not to the point then it is my ignorance that runs me upon mistakes that I cannot fathom what he or the Lawyers do say 1. He saith pag. 26. that if a man have Land given in free marriage with a Wife he hath only Custodiam terrae cum uxore and therefore cannot dispose of those Lands to any Person from the right Heir 2. So pag. 28 29. he tell us that the Writ for the Livery of Budiford to Lewellyn runs in these words quod Johannes Rex ei dedit in maritagium cum Johanna c. and saith he Livery would be needless in a gift of free-marriage and therefore concludes it must be only in maritagio given not in libero maritagio and so Lewellyn's Deed to John Scot is mistaken and be it what it will it will work nothing in this case My Reply 1. To the first For what he saith that according to the ancient Lawyers in those elder Ages that Lands given with a Wife in free-marriage to a man the Husband hath only the custody of such Lands with his Wife and therefore cannot dispose of any of those Lands to any person from the right Heir by such a Wife Yet we see here that Lewellyn did grant away de facto to John the Scot Budiford in free-marriage with Helen his Daughter about 1222. which Lands King John gave unto him in free-marriage with Joan his Daughter Mother of the said Helen by what right we cannot now tell whether by the consent of the right Heir by Joan or other compensation else-where given but certainly it was so given and Helen was right Heir to her Mother Joan after the death of David her Brother without Issue 2. To the second As to the Writ of Livery concerning Budiford running only in maritagium it hinders nothing but that the grant to Lewellyn of Budiford might be in libero maritagio as we see that of the Castle of Ellesmere granted also to Lewellyn by King John with his said Daughter Joan in libero maritagio by express words See the Deed at large in my Advertisement to the Reader at the end of my Book stiled Sir Thomas Manwarings Law-Cases Mistaken and yet the Livery of Ellesmere saith only quod dedimus dilecto filio nostro Lewelino in maritagio filiae nostrae See Sir Thomas Manwarings Answer to my Addenda pag. 6. Now maritagio doth as well include free marriage as not free-marriage according as the Deed runneth Pag. 30. Of his Answer to my two Books Here he saith he thinks he can make good what he said of my Partiality which yet he will not speak publickly and that I will not be excused by that contradiction of mine to wit That admit I were never so much partial in what he chargeth me with yet I hope what I have written he finds it impartial to all so far as I go or know would this cure his uncivil expressions towards me in another thing but he leaves out these last words of mine My Reply Let him find out a contradiction here if he can but all his shifts and cavils cannot prevail to cover the truth concerning Amicia and which with all his art he cannot solidly refute So having done with this Trip I proceed to the rest Pag. 32 33. Of his Answer to my two Books Now he would fain justifie a former error of his and shews me a Deed out of my own Book pag. 143. from which Book he fetcheth many things but nothing will help his cause In which Deed Randal Duke of Brittain Earl of Chester granted to Andrew Son of Mabil to his Heirs sundry liberties c. among which it is there said nec de querelâ aliquiâ in civitate Cestriae vel extrâ respondeant in praesentiâ meâ vel summi Justitiae mei * upon which he puts in the Margent a special mark thus * Note and after he saith Now let any Person judge whether there was not a chief Justice of Chester in those Elder Ages But before pag. 32. he tells us most learnedly that the word Justitia here is of the Masculine Gender and gives us a rule out of the Grammer for it Mascula nomina in a dicuntur multa Virorum and was sometimes in those Elder Ages used for the Judge or Justice of Chester which he believes I cannot deny My Reply No indeed I cannot deny it but why used for the Judge or Justice of Chester more than
deny a truth I would I could say as much of Sir Thomas indeed it is much that this very word should be mis-printed above other words in Matthew Paris I believe neither Sir Thomas nor any other scarcely upon such an accidental business could have suspected it to be so having lighted upon the place by chance else I should have made a stricter enquiry but it had reason to put him upon an enquiry Yet where he saith pag. 59. that I dealt deceitfully herein and that I did it purposely This is another Trip of Sir Thomas for had I then known it to be mis-printed I would never have urged it at least without a Note upon it However the mis-printing of Hugh Earl of Chester for Randle in the Welsh History pag. 197. holds firm for ever and Sir Thomas confesseth it mis-printed in this his Answer pag. 52. very probably in the latter Copies the letter R standing for a word in the Original book might be mis-written ♄ in the Copy which was supposed to be Hugh or else for certain the Original was mistaken But for all this Sir Thomas is so far from an ingenious Confession herein that he will justifie his absurd errour of computing Earl Hugh to be 41. years old when he married Bertred this he grounds upon the Errata at the end of Doctor Powels Notes on the Welsh-History aforesaid where it is said we must read pag. 197. line 16. Hugh Son to the Earl of Chester Which amendment is certainly as far from the truth as that already Printed and it is very questionable whether the said Earl Hugh ever lived to be 40. years old for he dyed Anno Domini 1181. and suppose we that he was eight years old when his Father dyed Scilicet 1153. which I believe is as much as by reasonable account any indifferent person can well judge him so to be yet would Earl Hugh be but 36. years old when he dyed Anno scilicet 1181. and if he were twelve years old at the death of his Father which I am confident can never be proved by good Authority yet would Earl Hugh be but 40. years old when he dyed See what a shift Sir Thomas would now make but to suppose Earl Hugh to have a former Wife which certainly he never had but it appears now by a Record that he dyed about the Age of 32. Again Sir Thomas saith pag. 51. that I go about to disparage Doctor Powel all I can and that I will not suffer the Wesh History to be read as it should have been Printed as also pag. 52. that I will now disparage the said History although in my Historical Antiquities touching the Kings of Wales I did chiefly follow the same This is another unkind reflection Sit liber Judex See page ioii supra pag. 94. of my former Reply my words are these As I believe it that is the Welsh-History to be true in many things so it hath also some gross mistakes nor is it at all proved by good Authority or exactly composed through out nor shall you therein from the beginning find all the Wives Children and Bastards of the Ancient Kings and Princes of Wales clearly Recorded and so are Doctor Powels Notes thereon full of Errors and especially in his absurd Pedegree of the Earls of Chester and in several other things Here is nothing but what every knowing man who doth seriously peruse the same will acknowledg to be true and some mistakes may be and are in the writings of very Learned men and yet no great disparagement neither and I do confess also that I followed the Welsh-History in the Princes of Wales for I had no better nor other to follow Pag. 60. Of his Answer to my two Books Having now concluded his Answer to my former Book he tells us that in my Latine Epistle to the Judges which he supposeth to be mine though I vouchsafe not to set mine name thereto I said he was the first Instigator of this Controversie but whether that be so or â—o he refers the Reader to his Epistle before his Defence of Amicia and to the second and third pages of his Reply My Reply But what Sir Thomas saith there was not the first time of this Controversie between us For he saith in that Epistle that if I would have delivered what I did conceit about Amicia as an uncertainty only then I knew he would have rested satisfied with the judgment of those many knowing persons who dissented from me in opinion therein But this was a little before my Historical Antiquities were Printed nay he came to Tabley †About 1672. also purposely to desire me hearing then that my Book was about to be Printed that I would put Amicia under the Title of the doubtful Issue of Earl Hugh when I told him that I thought it not sit to put down in my book any such third title of doubtful Issue for she must certainly be either lawful or unlawful which method I had observed in the rest I told him also that it was not at all doubtful unto me for in my judgment she was certainly a Bastard And then he said if I did place her under the unlawful Issue of Earl Hugh he would write against it which afterwards he did and I believe it had been as good to have let it alone But before this †1664 Also 1672. we had long entercourse some years before by Papers between us upon this Controversie which Papers I have yet by me and which when my book was in Printing he desired I would not print any of them without his consent and I promised I would not and I kept my word with him and had it not been for those passages betwixt us I had not said near so much of it in my book as I did and so much for this See my Answer to the Defence of Amicia pag. 3. Pag. 60. Of his Answer to my two Books He tells us also in the same page that I do not put the question of Law aright but the point must be otherwaies proved then by such a frivolous question as mine is My Reply I am sure I know not how to put it clearer to the point videlicet whether Lands in those Ages might not by the ancient Law be given in free-marriage with Bastards for Sir Thomas saith the Deed of Services in frank-marriage with Amice proves she was no Bastard because saith he the Law will not allow such a grant with a Bastard I say though at this day the Law will not allow it yet it would then allow such a grant in the Age when Amicia lived as the Law as then taken must not now the question be whether the Law in those Ages would so allow it or no And yet it is no sure Argument to prove Amice no Bastard though the Law should not then allow such a grant as to argue thus Amice had Lands given with her in libero maritagio ergo Amice
versus Capitalem Dominum de me haeredibus meis c. was a good grant in free Marriage by the words of Glanvil in those Ages and as good as in liberum maritagium Why so because Glanvil doth not there or any where else say that Lands may be given in free Marriage by those or any other equipollent words without using the words in liberum maritagium and unless he saith this he saith nothing for Sir Peter's purpose My Reply For this see pag. 54. of my former Reply where I have proved it out of Glanvils words by sure consequence which Sir Thomas hath not yet answered Sit Liber Index Glanvil lib. 7. cap. 18. 'T is true those very words here mentioned by Sir Thomas are not in Glanvil but Lands granted in maritagium free from all Service c. saith Glanvil was a grant in free Marriage and by sure consequence implyed there out of Glanvil to be the words answerable to the words in liberum maritagium which makes clearly for Sir Peter's purpose against Sir Thomas for such a grant saith Glanvil was a grant in free Marriage without telling us that the words in liberum maritagium must be necessarily used at all So that Sir Thomas mistakes himself here very much and not I. Pag. 12 13. Of his Answer to my two Books Here he writeth down Saher de Quencyes Deed out of my Historical Antiquities In which Deed saith he pag. 13. if Donarium were there mis-written for Doterium it would not here signifie Marriage but Dower and he thinks also that the Transcriber probably did mistake Donarium for Dovarium the n and u being anciently written alike but he saith also he got a friend carefully to examine the same in one of the Couchir-books in the Dutchy Office in Grays-Inn and the word is there Donarium without any mistake at all My Reply It is true I did intrepret in liberum Donarium in that Deed as meant of a Jointure in my Historical Antiquities pag. 132. but upon better consideration I conceived it might be more properly interpreted here and understood for free-marriage in my former Reply pag. 7 8. and in my Book stiled Sir Thomas Manwarings Law-Cases Mistaken pag. 29. for finding Dos sometimes anciently taken for Marriage and finding the word liberum added here unto it I did conjecture it might have been miswritten in my Copy in liberum Donarium for in liberum Dotarium and so all one as to have said in liberum maritagium and the rather for that we find very rarely the word in liberum donarium so applyed nor do we usually say Lands are given in free Joynture but in free Marriage But now it being in the Couchir-book in liberum Donarium without mistake as Sir Thomas tells us he got a Friend to examine it it must needs be here interpreted for a free gift for Saher de Quency Earl of Winchester grants to Robert de Quency his Son and Heir four Mannours ad dandum in liberum Donarium Hawisiae Sorori Comitis Cestriae uxori ejusdem Roberti This was soon after the Marriage for she was now the Wife of Robert and these Lands were given for a free gift to Hawise his Wife which is all one as to have said for a free gift in Marriage to Hawise and a free gift in Marriage is all one as a gift in Free-marriage add hereunto that those four Mannors given in liberum donarium as aforesaid accrewed to the Heires of Hawise to wit to John Lacy Earl of Lincoln in right of Margaret his Wife Daughter and Heir of the said Robert Quency Hawise which by Law ought to descend upon the Heirs of Hawise being given in free marriage Whereunto also Roger de Quency who succeeded Earl of Winchester upon the death of the aforesaid Robert de Quency his Elder Brother without Issue Male released all his Right unto the Heirs of the said Margaret See my Historical Antiquities pag. 271. whereas had those Lands been given to Hawise in Dower or Joynture only she could but have enjoyed them for her self and not to her Heirs But whether is the more proper interpretation thereof in this place let Learned men judge I will not contend about it Yet whereas pag. 15. Sir Thomas would have the Reader to judge of my Integrity because I did formerly interpret the words aforesaid to be understood of a Joynture and now upon more serious deliberation conceive the same to be meant for a gift in free-marriage or a free gift in marriage having the word liberum joyned with it I say it is hard to censure my integrity for it for that is well known to all the County where we both do live I shall make no comparisons for those are odious and savor of arrogancy Again Sir Thomas hath committed another Trip pag. 10. where he expoundeth Mr. Glanvils words when he speaketh of gifts in frank-marriage cum aliquâ muliere to be meant with some woman which words he misinterpreteth altogether for it is there meant with any Woman not with some Woman He hath the same errour in his Reply to my Answer pag. 40 Pag. 16 17. Of his Answer to my two Books Here he saith I tell him how he proves by comparing the Age of Bertred that Agatha could not be the Daughter of the Second William de Ferrare wherein saith he I am pittifully mistaken for he did goe about no such thing but he did shew pag. 3 4 5. that Joane Wife of Lewellyn could not be the same Joan which King John had by Agatha My Reply O pretty Subterfuge hath he any proof at all here that Joan Wife of Lewellyn was not the same Joan which King John had by Agatha but all his proof there bottomed on the Age of Bertred which could not allow Agatha to be the Daughter of the Second William de Ferrars by Bertred's Daughter so as to suppose Agatha to be old enough to have Issue that Joan by King John and that Joan to be old enough to be Wife of Lewellyn Anno. 1204. which is a false ground taken from Vincent but Speed saith Agatha was Daughter of Robert de Ferrars and I agree Vincent to be mistaken therein Let me see him prove the Princess of Wales to be no Daughter of Agatha by King John what he saith here is nothing to the purpose See my former Reply p. 18. Pag. 22. Of his Answer to my two Books Here after a long Oration nothing at all material he tells us would any man think Sir Peter himself within a very few lines would be guilty of the like offence which I unjustly charged him withal and a little after Sir Peter would distinguish between maritagium and maritagium Servitio obnoxium and say maritagium is two-fold but doth not give the members of his distinction aright My Reply Here are two great Trips more of Sir Thomas for I did neither charge him unjustly with that distinction which any man may read in his book nor am
elder than his Wife Bertred why so For saith he though the said Robert did live something longer than Sir Peter doth take notice of yet he thinks it cannot be proved that he was living any considerable time after Eustace who was Witness to the Grant of Stivinghale and he knows no reason why we should conclude Eustace was slain immediately after he was a Witness to the other Deed or that this Robert dyed presently after he was a Witness to this Deed. 2. He saith pag. 49. that he thinks it will appear that this Deed was made in King Stephen's time for had it been made when Henry the Second was King it would not have been here said sicut fuit tempore Henrici Regis but sicut fuit tempore Henrici Primi or else here would have been some other words used to distinguish King Henry the first from the then King Pag. 49. Now King Stephen dying 1154. and Bertred not born till 1157. it will from this Deed be clear that if the said Hugh had sealed the other Deed immediately before King Stephen dyed yet Earl Hugh would be at the least 24. years older than Bertred his Wife My Reply Is not here a long Prose of his running all upon ifs and ands without the least ground of truth 1. To the first I do remember that I have seen some proof that the first Robert de Monte-alto as he calls him was living 17. Stephani what then why should we conclude saith he that Eustace was slain immediately after he was a Witness to the one Deed or that Robert dyed presently after he was a Witness to this other Deed Is not here pittiful weak reasons to bottom on we find Eustace slain Anno. 1157. So Stow and other Historians as to Robert de Monte-alto aforesaid I conceive he survived Hugh Cyvelioc I have not yet seen any thing to induce me to think he dyed before Earl Hugh and this Deed of Earl Hugh to the Nuns of Bolinton I believe was made far in the Raign of King Henry the Second nor can he give any reason at all to the contrary and we find not Rafe de Monte-alto a Witness till Randle Blundevil's time and that must be either in King Richard the First 's Raign or towards the very end of Henry the Second at soonest 2. To the second Let him prove this Deed to be made in King Stephen's time and I will burn my book as to his reason of distinguishing of one King Henry from another how many times do we find mention of the Henrys in old Charters without distinguishing at all Somtimes they are distinguished and sometimes not but not adding the word of Henrici Regis nunc shews clearly it is meant of Hen. 1. 3. To the third As he proves nothing from the Deed nor when it was made so his ifs signifie nothing for Earl Hugh was certainly a Child under age when he joyned with his Mother in the Deed of Stivinghale And his ifs are very pretty if Earl Hugh made this Deed to the Nuns of Bolinton immediately before the death of Robert de Monte-alto aforesaid and then you must take his other if too if this Deed was made in King Stephen's time and then you must take his third if too if Robert de Monte-alto dyed soon after King Stephen what then why then Earl Hugh must be a great deal older at least 24. years older than Bertred his Wife But if these ifs be all false suppositions and if Earl Hugh did make this Deed towards the middle of the Raign of Henry the Second and if Robert de monte-alto out-lived Earl Hugh all which are more reasonable to imagine than the other ifs what then We may then conclude Earl Hugh was not near so much older than Bertred his Wife as Sir Thomas would suppose him See what stuff he here produceth to prove nothing Pag. 49. Of his Answer to my two Books Here he saith that whereas I pretend to have shewed that Earl Hugh could neither be so old as he would suppose him nor yet that the said Earl was born in the year of Christ 1142. Sir Thomas Answereth that any man who can but count 20. to wit how long it is from 1109. to 1129. or from 1110. to 1130. if he looks on his Defence of Amicia pag. 51. and on his Reply pag. 61. may find that Hugh Cyvelioc might be older than he saith My Reply But whosoever views his Computation in those places will find the same very wilde every supposition upon the utmost possibility and as here so there he goes all upon ifs which cannot encline any judicious man to a belief here he concludes too but upon a bare possibility That Earl Hugh might be older than he now saith that is at least 24. years older than Bertred his Wife which is certainly a great deceit of the Reader to encline a belief that a thing is so because it is possible to be so Doth he any where prove substantially that Earl Hugh was so much older than his Wife more than what may be very ordinary with other men in the like Case or reasonably to suppose he had a former Wife Shew me that if he can I am sure it cannot be proved see my Answer to his defence of Amicia pag. 48 49. It appears clearly by the Record in the Exchequor at Westminster that Earl Hugh was but six years older than Bertrey or thereabout which dasheth out all his Ifs for ever See more hereof in my Peroratio ad Lectorem at the end of this my second Reply Pag. 50. Of his Answer to my two Books Here he knocks me dead and thinks now he proves Amicia no Bastard for certain for he doubts I am no good Arithmetician because in my Historical Antiquities pag. 137. I said I was eight years older than my Wife and he hath taken great pains to search out the difference of our Ages and finds I am not much above six years older than my Wife My Reply It is true I there said so speaking cursorily and over-hastily without due examination for I then conceived she had been born in the eighth year of my Age but it appears now she was born in the seaventh year of my Age so that I am by exact account only six years and two moneth and about two weeks older than my Wife But what is all this to Amicia The Reader may see how he makes it his business to catch and carp at every thing material or not material Pag. 51 to pag. 60. Of his Answer to my two Books In all this there is little or nothing material to the main point but he spends much time in comparing sundry ancient Authors to shew that Matthew Paris is misprinted in the place urged by me to wit in the Edition put out by Doctor Wats 1640. pag. 79. where he saith William Mandeveyle was taken Prisoner at Saint Albons sub anno 1142. for Geffrey Mandeveyle My Reply I will never excuse an errour nor
VIII annis Ipsa tenet Wadinton in dote de feodo Comitis Cestriae et firma est XXII libr. per annum dict a villa valet per annum XL. lib Cum hoc instauramento Scilicet II Carucis IIII Vaccis I Tauro IIII Suibus I Verre Dovibus quae ibi sunt c. Com. Lincoln Jeretre-Wapentak Bertreia Comitissa filia Comitis de Evereous uxor Hugonis Comitis Cestriae est de donatione Domini Regis est XXIX annorum Terra quam Comitissa habet XL. lib. Maritagium defectus sunt ultrà mare ideo nesciunt Juratores quid valeant Dominus Rex praecepit quod ipsa haberet XL libratas terrae Domini sui in Beltesford Hemmingly Duninton licet non habuit nisi XXXV libratas X solidatas Quiá ut dicunt dicta terra non potest plus valere cum Instauramento quod comitissa ibi recepit Scilicet V Carucis CCCXLI Ovibus X Suibus I Verre Sed si in Duninton apponerentur CCoves X sues I verris tunc Valeret So that by this Record it clearly appears that as Bertrey was twenty nine years of Age 31. Hen. 2. 1185 So Maud the Mother of Hugh Cyvellioc Earl of Chester was aged fifty years Anno Domini 1185. 31. Hen 2. c. And so Maud must be born Anno 1135. and Bertrey must be born Anno 1156. Now it cannot be imagined that Maud could have a Child before she was fifteen years of Age And then Earl Hugh could not be born till the year 1150. at soonest And by Consequence Earl Hugh was about three years old when he came to be Earl and about six years older than his wife Bertrey What a monstrous and wild Computation then hath Sir Thomas Manwaring made and upon utmost Possibilities too supposed in his Answer to my Addenda pag. 50 51. where he would have Earl Hugh to be 41. years old when he marryed his Wife Bertrey which Marriage he supposeth to be Anno 1171 So also in his Answer to my two Books pag. 49. Wherunto see my First Reply pag. 91. to pag. 94. See also in my Second Reply to his Objection in that Point mentioned here a little before Pa 46 47. And how could Earl Hugh now be in years as Mr. Dugdale would have him when he marryed his Wife supposing with Sir Thomas the Marriage to fall Anno Domini 1171 For by this Record Earl Hugh would then be but 21 years old and his Wife about 15. years old So this Argument of Probability is become an Argument of Improbability of the Earl's having any former VVife This Record came to my hands after I had written my Second Reply And I am very confident that when soever any Record tending to this Point concerning Earle Hugh or Amicia shall hereafter at any time be discovered it will more and more illustrate the Truth of what I have written about them 7. Having now laid asleep for ever The Argument of the Sticklers for the Legitimacy of Amicia drawn from the Erroneous Computation of Earl Hugh's Age I come now to the Letter of Sir Thomas Manwaring before mentioned written by him to a Kinsman both of his and mine and left with Throp the Stationer in Chester purposely to be divulged and made known to every Man in Town wherein he writ among other things That I having appealed to the Judges Mr. Dugdale had moved them in the Case who upon Mature debate determined that Amicia was no Bastard as I was credibly informed by one who saw the Letter But as I said before How could there be any Mature-debate or Determination of the Point in Controversie by our Reverend Judges whiles as yet the Case is not at all agreed upon between us For Sir Thomas waves the Question in Law and will not abide the Test See pag. 60 61. of his Answer to my two books For whether Amicia was a Bastard or no this Question hath nothing of any Law in the case and therefore unfit to be put to our Reverend Judges for their Opinions unless also all the Records and Histories touching the same together with the Reasons alledged on both sides were produced before them It is more proper for them to judge only upon the point of Law And it is granted on all hands that Lands cannot pass with Bastards in libero maritagio at this day as the Law is now taken but in the more ancient Ages when the Deed to Amicia was made Lands might and did usually pass with Bastards in libero maritagio I affirm it out of ancient Precedents Sir Thomas denies it Now all Deeds by the rule of Law are to be Construed and understood according to the time when they were made so that there is now no other Case of Law to be put but this as I put the same in my Epistle Dedicatory to all our Reverend and Learned Judges to wit Whether in the Age of Glanvil Lands lawfully might and did usually pass with Bastards in Free-Marriage or no Again I am assured from very good hands who have lately enquired of many of our Judges above that there was no such thing as a mature debate determination as Sir Thomas mentioneth in his Letter nor their Opinions at all delivered as yet in the Case of Amicia now in Contest and some of them said that they never had any such a question asked them as whether in the Age of Glanvil Lands might Lawfully pass in Free-marriage with Bastards If Mr. Dugdale hath moved any of the Judges in private for their Opinions in any point of Law about Amicia had he but given me due notice of such his intention I would have met him half way and so the Case might have been truly stated and the point thorowly debated for he being on the place might have those opportunities which I could not at this distance possibly have and so the truth would have appeared to the world And therefore that I may deal above-board I have here following published by it self The Case of Amicia truly Stated for the better apprehension information of all Persons and the rather for that Mr. Dugdale only buildeth his Opinion of the Legitimacy of Amicia on the same point of Law in his Baronage of England And howbeit as I formerly said I left every man to his own free judgment thinking rather to establish my own Opinion by Authorities and good Reason then by other mens Opinions so I never went about to hunt for Opinions especially in the Case of Amicia for many did concur with me without my seeking till after that Letter of Sir Thomas Manwaring before-mentioned for I ever counted it an improper thing to prove a point of History by a nice point of Law But I have lately made some enquiry and am assured from very good hands that some of our more eminent Judges above and I believe all of them if they would deliver their Opinions in the Case do concur with me in the point of
Law aforesaid and so do also other Eminent and Learned Lawyer here below that in those elder Ages a gift in Free-Marriage with a Bastard was good although at this day our Law is otherwayes taken So that now there is not so much as one seeming Argument of Reason left to uphold the Legitimacy of Amicia Besides one of our most eminent Heralds of our Nation and King at Armes is of Opinion with me also that Earl Hugh never had any other Wife but Bertrey as I have it from a sure hand who was then present when he publickly spoke it whose judgment I may well bottom on for I am sure there is no History or Record to prove any other Wife at all and very many other judicious and knowing men do concur in opinion that Amicia was a Bastard and so I leave it to the judgment of all men who are vers'd in Antiquities Records and Histories And so I have done if Sir Thomas hath doee and now I think it will be time for both to have done Mobberley December the 17th 1675. FINIS THE CASE OF AMICIA Truly Stated By Sir Peter Leycester Baronet August the 5th MDCLXXV Qui vult decipi decipiatur Printed in the Year 1676. THE CASE OF AMICIA Truly Stated THe Question concerning Amicia Wife of Rafe Manwaring and Daughter of Hugh Sir-named Cyvelioc Earl of Chester is briefly this Whether the said Amicia was a Bastard or no This is altogether a question of History and nothing of Law at all in the Case The Reasons Collected out of History Records and Evidences shewing her to be a Bastard are these 1. It is confessed on all hands that Amicia was no Daughter by Bertrey the Wife of Earl Hugh for then she would have shared the Lands of the Earldom with the other Daughters by Bertrey which for certain she did not nor ever claimed any part of the same as is most manifest by the Record of 18. Hen. 3. when all the Co-heirs did implead John the Scot then Earl of Chester upon a Writ de rationabili parte See my book of Historical Antiquities pag. 151. as also by the testimonies of many of our ancient Historians who have Recorded all those Daughters in their books And she could be no Daughter by any latter Wife because Bertrey survived Earl Hugh her Husband See my said book of Antiquities pag. 132 139 143 148. And she could be no Daughter by any former Wife because Earl Hugh never had any other Wife but Bertrey And the Sticklers for the Legitimacy of Amicia do confess that they cannot prove any other VVife at all much less can they prove Amicia to be the Daughter of any such Wife Therefore the Earl having no other Wife but Bertrey and Amicia being no Daughter by Bertrey Amicia Daughter of Earl Hugh must certainly be a Bastard 2. Earl Hugh had several other Bastards as is evident by ancient Deeds and if the bare alledging that he had another Wife be sufficient without due proof then all his other Bastards may be made Legitimate by saying that they were by another Wife And our ancient Historians as Matthew Paris Poly-Chronicon Knighton Stow and others have Recorded the Lawful Children of Earl Hugh but not one of them mentioning Amicia in the least nor any former Wife at all which some one or other of them without doubt would have taken notice of had Amicia been a Legitimate Daughter 3. Rafe Manwaring the Husband of Amicia was not an equal Competitor at that time to have Married a Lawful Daughter of the Earl of Chester for we find the Lawful Daughters of this Earl Hugh were Married to the greatest Earls then in England The Earl of Huntington who was Brother to the King of Scotland the Earl of Arundel the Earl of Darby and the Earl of Winchester's Son and Heir and therefore it is more than probable that Amicia was not a Lawful Daughter especially since no provision considerable was made for her who must have been the only Daughter Heir of Earl Hugh by a first Wife as those of the contrary opinion would make her and if so she ought in all Reason to have had fully as great an Estate provided for her as any of his Children by a latter Wife which certainly she never had Wherefore res ipsa loquitur for nothing appears to be given unto her save only the release of the Service of one Knights Fee given with her in Frank-Marriage which sure was too small a Portion for a Lawful Daughter of the Earl of Chester And thus much for the Question of History whether Bastard or no Bastard Which I submit wholly to the Judgement of all Wife and knowing men who are versed in Histories Records and Antiquities And many very wise and knowing men some Divines some Lawyers and other grave and understanding Persons have herein declared that they concurre in Opinion that Amicia was a Bastard But now ariseth another Question for those who would have Amicia to be a Lawful Daughter and no Bastard which cannot be supported either by History Records or Reason they would ground their Opinion from a point of Law to wit that Lands cannot pass in Free-Marriage with a Bastard and because Amicia had a grant of some Services in Free-Marriage from the Earl her Father therefore they conclude she was no Bastard For all other Arguments for her Legitimacy are so void of Reason and Authority that all bottoms on this one Argument and the Question now is this Whether the Deed of Hugh Earl of Chester wherein he granted unto Rafe Manwaring in Free-Marriage with Amicia his Daughter the Service of Gilbert Son of Roger to wit the Service of three Knights-Fees by doing to the said Earl his Heirs the Service of two Knights-Fees be a sure Argument to prove Amicia a Legitimate Daughter But for the better stating of the question it is granted on both sides that Lands cannot now pass in Free-Marriage with a Bastard as the Law is taken at this day The proper question of Law therefore in the present Case is this Whether by the Law in Glanvil's time who was chief Justice of England under King Henry the Second and lived in the very Age with Amicia when the said Deed was made Lands might and did usually pass in those Elder Ages in Free-marriage as well with Bastards as no Bastards The Arguments for the Affirmative part are these 1. From the very words of Glanvil himself who was the first after the Norman-Conquest who reduced the Model of our Common-Law into writing in his Treatise de Legibus Angliae lib. 7. cap. 1. Quilibet liber homo quandam partem terrae suae cùm filiâ suâ vel cum aliquâ aliâ quâlibet muliere dare potest in maritagium sive habuerit haeredem sive non velit haeres vel non imo eo contradicente Also lib. 7. cap. 18. Liberum dicitur maritagium quando aliquis liber homo aliquam partem terrae suae