A REPLY TO AN ANSWER To the DEFENCE of AMICIA Daughter of HVGH CYVELIOK EARL of Chester Wherein it is Proved That the REASONS Alleadged by Sir Peter Leicester In his former Book and also in his said Answer concerning the Illegitimacy of the said Amicia are invalid and of no weight at all By Sir Thomas Mainwating of Peover in CHESHIRE Baronet London Printed for S. Lowndes over against Exeter-House in the Strand 1673. TO S r PETER LEICESTER BARONET THe Reasons which you and I have alledged for and against Amicia being now made publick all Persons may easily judge whether as you believe it was onely the zeal of my opinion touching her Legitimacy which caused me to endeavor to incline the world to concur with me therein or that what I said was supported with just Grounds and Reasons and I doubt not but those of our County that are understanding Persons will as easily discern from some of your omissions although I forbear publickly to take notice of them that it was something else besides your great love to Truth pretended by your alledging the old Rule of Aristotle which occasioned you thus to asperse your deceased Grandmother But however things are you have no reason to suspect any animosities betwixt us I having in my first Book as I hope I shall also do in this endeavoured to avoid all expressions which I did conceive might be offensive and I am confident you have no just cause to be angry with me for endeavoring to defend a deceased Grandmother whom I suppose to be very much injur'd by you I know not how far your memory may fail you therein but I am sure I have several times moved you and particularly came once purposely to you to Tabley to desire that you would be contented to deliver what you did conceit concerning Amicia as an uncertainty onely as you had done that of Roger Son of Hugh Cyveliok and did at all those times assure you that if you would so do and withal express that some Judges and Heralds were of a different judgement from you that I would never trouble you or the Reader with any Lines of mine And the reason why I desired you thus to do was because the Reader would certainly conclude Amicia to be a Bastard though no reasons were alledged if he saw one who was descended of her to declare her illegitimate in Print and did not know that some Learned Men were of a different opinion but I could not possibly prevail with you herein And although what you alledge be true that there is no medium betwixt being a Bastard and Legitimate but that a Man must absolutely be the one or the other yet as to the Writer of an History the case may be different for he may be certain that some concerning whom he writes may be Legitimate and others may be Bastards and accordingly he ought so to place them but it is possible there may be some which he is uncertain whether they be Bastards or not and in that case the Historian ought to express it doubtfully and not to take upon him absolutely to determine the point upon uncertain grounds As to your saying in the fourth page of your Answer in the Margent that you apprehend not why I call Sir Ralph Mainwaring Chief Justice of Chester when in those Ages there was only one Judge at a time there My reason wherefore I so did was because I found that Reginald Gray who was Judge of Chester had taken unto him as an Associate Ralph Hegham in the thirteenth year of King Edward the I as appears page 172. of your Historical Antiquities as also because I found in your said Book before the time of Sir Ralph Mainwaring two Deeds of Randle de Gernoniis which seemed to imply that there had been sometimes more Justices of Chester than one at a time the one of which as appears page 128. was directed Constabulario Dapifero Baronibus JVSTICIARIIS c. and the other as you may see page 160. was directed Episcopo Cestriae Dapifero Baronibus JVSTICIARIIS c. so that I hope I am justifiable herein And though it was not usual till after ages to have two Justices of Chester at one time and that I have not yet found that in the time of Ralph Mainwaring there was any Justice of Chester but the said Ralph yet it being possible for the reasons aforesaid that there might be more than one at a time I did therefore call the said Ralph Chief Justice to shew if there were then two that he was the chief of them because he acted as Justice of Chester alone as will thus appear from a Roll of antient Charts called Doomesday remaining in the Castle of Chester amongst the Records there Leuca quae fuit uxor Ranulphi de Kingesleigh veniens in pleno Com. Cestriae coram Radulpho de Mainwaring tunc Justiciario Cestriae Baronibus c. quiet clam Richardo de Kingesleigh totam villant de Bertherton unde dotata fuit And whereas you pretend page 4 and 5. of your Answer which is the onely example which you bring to prove what you there alledge that Geffrey de Dutton who made the Original Deed of Nether-Tabley had this word Domino sometimes prefixed to his Name when he was a Witness and yet was no Knight and thence would inferre that the word Dominus is no sure rule to be always understood of a Knight I shall before I give an answer unto what you say transcribe the said Deed out of your Historical Antiquities as I find it in the 355 page of your said Book Sciant praesentes futuri quod ego Galfridus de Dutton dedi concessi hac praesenti Charta mea confirmavi Margaretae siliae meae pro homagio servitio suo totam villam meam quae vocatur Parva-Tabley sine ullo retenemento cum Homagiis Servitiis cum Villenagiis cum Boscis cum Planis cum Pratis Pascuis cum Moris Mariscis cum Aquis Molendinis cum Viis Semitis cum omnibus locis praedictae Villae pertinentibus Tenendam habendam sibi Margaretae Haeredibus suis de me Galfrido Haeredibus meis liberè quiete pacisicè cum omnibus libertatibus Aysiamentis praedictae villae pertinentibus Faciendo inde mihiforinsecum servitium quantum pertinet ad duas Bovatas terrae unde trigint a Bovatae Terrae faciunt Feodum unius Militis faciendo servitium de Hauthoner quantum pertinet ad praedictam villam pro omni seculari servitio consuetudine demanda mihi Haeredibus meis pertinente Et ego Galfridus Haeredes mei praedictam villam ut praedictum est praedictae Margaretae haered suis contra omnes homines faeminas in perpetuum warrantizabimus Et ad majorem hujus rei securitatem huic praesenti scripto Sigillum apposui meum Hiis Testibus Domino Thoma de Dutton Domino Galfrido de Dutton Hugone
him with many Bastards both Sons and Daughters although I find no great Reason to suspect that he had any at all unless Paganus de Milton and it is possible in that case you having neither the Deed nor a Copy of the Deed by you that you might take Hugh Cyveliok for Hugh Lupus as well as in another Deed as will anon appear you did take Randle Blundevil for Randle de Gernoniis I am still of the same opinion that I was formerly of viz. That Richard Bacuns Mother was not a Base Daughter of Hugh Gyveliok nor any Daughter of his at all but that she was daughter to Randle Meschines and Sister to Randle de Gernoniis And I think those reasons which I have given in my former Book do fully prove the same And albeit you tell me in the 54 55 and 56 pages of your latter Book that truly I am deceived in it yet I do not doubt but to satisfy all the world that it is you and not I that are deceived therein And whereas you say it is true as I observe that there was no such Archbishop of York called Will. nor Bishop of Chester whose Christian name began with R. both living at one time either in the time of Randle de Blundevill or Randle de Gernoniis I answer I did make no such observation at all but the contrary For I shewed you that in the time of Randle de Gernoniis William Sisters Son to King Stephen was Archbishop of York for a time viz. about 1142 or 1143. though he was afterwards ousted of it again till 1152. or 1153. and Roger Clinton was Bishop of Coventry and Litchfield which then was the same with the Bishop of Chester from the year 1128 until the year 1148 or 1149. And I then also told you that there was no William Archbishop of York at anytime during the life of Randle Blundevill nor any man Bishop of Chester whose Christian name began with R. except Richard Peche who died about the time that Hugh Cyveliok died viz. in 1182 though some say in 1181. and some in 1183. at which time Randle Blundevill could not be of age to Seal any kind of Deed because Bertred the said Randle's Mother was then but about Twenty five years old and this Argument you perceive to be so strong against you in this point that you have no way to avoid it but by giving a strange answer to it which is that you do conceive the Roll from whence the Deed in Monasticon Par. 2. Pa. 267. is written is mistaken in Will and R. and miswrit therein from the Original Chart it self Which liberty if a Man might take he might answer any thing in the world and your reason for so saying is Because Richard Bacun in his said Deed doth say that he had procured the warranty of Randle Earl of Chester his Vncle for the ratifying of that Grant and the very next Deed following in the Roll and transcribed in the Monasticon is the Deed of Randle Earl of Chester with Confirmation and Warranty accordingly whereunto Roger Lacy Constable of Cheshire is a witness who only lived in the time of Randle Blundevill and no other Earl of Chester as I may see cleerly proved among the Barons of Halton in your Book nor is there any other Deed of Confirmation and Warranty to be found by any Earl save this wherefore you say certainly it must be Randle Blundevil whom Richard Bacun calleth Vncle in his own Deed of the Foundation of the said Priory And you also say the Bishop of Chester being also Bishop of Litchfield and Coventry at that time he was not then subject to the jurisdiction of York but Canterbury and you also say That there was no Archbishop of York called Will. nor Bishop of Chester whose Christian name began with R. both living at one time either in the time of Randle Blundevill or Randle de Gernoniis that you can find To which I answer That it is not to be doubted but that Richard Bacun did obtain the Warranty and Confirmation of that Randle Earl of Chester who was his Uncle and then living neither is it to be doubted but that the Deed to which Roger Constable of Cheshire was a witness was the Deed of Randle Blundevil I having proved it to be so in the 56 page of my former Book because Roger Constable of Cheshire was living in the time of no other Randle but Randle Blundevil so that you did not need to send me to see that clearly proved among the Barons of Halton in your Book but the Deed of Confirmation of that Earl who was Uncle of Richard Bacun is not in the Monasticon but was probably lost as many other antient Deeds were and that Deed of Randle Blundevill which is there is but another Deed of Confirmation according to the mode of those times when it was usual to obtain such from several Princes several Generations one after another and for proof hereof I did desire you to read Monasticon Anglicanum Par. 2 Pa. 24 and 25. where you might find King Henry the I. reciting and confirming what had been given to the Priory of Huntendune and pa. 27. how King Henry the III. did the like and yet there was a greater space betwixt King Henry the I. and King Henry the III. than there was betwixt Randle de Gernoniis and Randle de Blundevil and very many others of the like nature may be found by those who will take the pains to make search in the several Monasticons Also it is very strange that you should fancy that the Roll where the said Deed in Monasticon was written should be mistaken both in Will and R. especially since the word Will. was the first word in the said Deed neither is it a badge of any mistake in the said Deed because the Archbishop of York is named in it though the Bishop of Chester being at that time the same with the Bishop of Coventry and Litchfield was not then subject to the Jurisdiction of York but Canterbury For the Archbishop of York was not named upon that account but because some of the places mentioned in the said Deed were within the Province and Diocesse of York as particularly Rosington was it being within the West-riding of Yorkshire but I suppose your principal reason why you suspect the Roll was mistaken is because you say there was no such Archbishop of York called Will. nor Bishop of Chester whose Christian name began with R. both living at one time either in the time of Randle Blundevill or Randle de Gernoniis that you can find Which saying of yours seems very strange to me but I believe all your doubt is about the Will that was Archbishop of York because Dr. Heylin a late Writer in his Catalogue of Bishops doth not mention the said Williams being chosen Archbishop immediately upon the death of Thurstan for I am consident that you are well satisfied that Roger Clinton was
of the right Line as also the Mainwarings of Peover after they became next Heirs Male have constantly born the two barres for some hundreds of years I might reply and tell you that the Mainwarings of Peover have not constantly given Argent two Barres Gules since they became Heirs Male to the Mainwarings of Warmincham as appears by my Deeds Neither do I think that Mr. Cambden did look upon the Six Barrulets as a Coat most peculiar to us for in his Britannia in his Description of the County of Chester he names the two Barres as the Coat most proper to our Family as appears by these words of his when he writes of Astbury Church viz. Haec enim perpulchra est cujus porticus Occidentalis ipsam Ecclesiam quae sane alta sua altitudine adaequat pyramidem adjunctam habet In caemeterio duae jacent sepulchrales Militum effigies in quorum scutis sunt duae directae areolae sive Barrae Verum cum coloribus suis destituantur non facile quis dixerit fuerintne ex Breretonis Mainwaringis vel de Venables quae clarissimae sunt in vicinia familiae ejusmodi Barras variantibus coloribus gentilitiis in clypeis gestant I rather think that my Great Grandfather having a Fancy to that Coat of Six Barrulets more than to that of the two Barres because the most antient of our Deeds were sealed therewith that Mr. Cambden gave him liberty to bear either the one or the other which I see not but it might be done being our Family had for several generations usually born the one and the other had been born by our Ancestor and had never been used by any other Family and I am sure though you be so captious with us that you your self have of late years given a different Crest from what had for a long time been born by your Predecessors because you found a more antient Crest in some of your Seals And whereas you instance in the great Suit betwixt Scroop and Grosvenour in the Marshals Court under Richard the II. concerning the bearing of a Coat of Arms whereto both challenged a right and propriety by usage but no other way You thence rightly infer that usage makes a right in such cases but when you say that usage only makes a right you are mistaken therein For not to mention the case in hand where a mans Ancestor hath born a Coat which for sometime hath been laid aside but never taken up by any other Family a Man could then have no right to a Coat which was given him by a King of Arms. I am still of opinion that you have branded several persons in your Book with Bastardy without any proof thereof but shall not yet concern my self for any besides my own Ancestor except such as you give me just occasion to take notice of And as for Geva and Richard Bacun's Mother the first of them is not yet by you proved to be a Bastard and I shall certainly hereafter make it appear that the second was no Daughter of Hugh Cyveliok so that Amicia is like to receive no blow at all And if they were both Bastards it would be no prejudice to Amicia because I have in my former Book fully proved that the gift to Geva was not a Gift in Free-Marriage as that to Amicia was and you do not pretend at all that any such gift was made to the Mother of Richard Bacun And whereas you tell me you believe that Geva and the wife of Bacun had never been spoken of nor suspected nor doubted of by me had not the case of Amicia been concerned I can assure you I should have been of the same opinion concerning them if you had never mentioned Amicia but if you had not pretended from their Cases to raise some Arguments against the said Amicia I should never have troubled my self about them and therefore I forbear to tell you of all mistakes except such as the case in hand doth give me just occasion to observe And whereas you say page 12. that you think you shall make good what you have alledged with as much certainty as the nature of the thing and times will admit And also page 27. that Geva was certainly a Bastard by as good proof us can possibly be expected in such a case You do thereby implicitely confess that you do not make those things appear with any certainty at all I have now done with what you have said concerning my Epistle and shall now proceed to consider of your Answer to the Book it self and because you do in several places again say what you have said heretofore I hope the Reader will excuse me if I be constrained sometimes to repeat the same things which I also have formerly said In the 14 and 15 pages you do tell me that I said I would remind you of that which you had formerly been told viz. Who those Heralds were that gave to Mainwaring of Peover the quartering of the Earl of Chester's Coat in Queen Elisabeth's time and withal do say that I never told you till long time after that part of your Book was written which perhaps may be true because that part of your Book was written very long since viz. in the year 1647. but I am sure I have often told you of them and you have also often seen the Pedigree it self under the hands of Mr. Cambden and Mr. Sampson Erdeswick the rest in that place is only the repeating of your former quarrel with them for suffering us to quarter the Earl of Chester's Coat but if we can really prove that we are of the Half Blood whatever you conceive of it I suppose all indifferent persons will think it but meet that we should have the like liberty that all others have in the like case in these last ages of ours What you say in the 16 and 17 pages hath been some of it formerly said in your Historical Antiquities and also in the 15 page of this your Answer and there is nothing there that is new but that you only alledge that as to my note of Dukes and Earls to have been antiently Judges of Chester I should have distinguished the times for that was not till the Reign of Richard the II. who made Deputies to act in their stead before which time there were no such great persons Judges there nor from Henry the Sevenths time downwards But what necessity there was for me particularly to distinguish the times in which those great Dukes and Earls were Judges of Chester I do not know For I only instanced in that to shew that the place of Judge of Chester was antiently a place of great repute and though it was some time after the death of John Scot before any such great persons were made Judges of Chester by the Kings of England and that in all the times of the Earls of Chester before that Earldom was united to the Crown there could not be any Dukes or Earls made
Judges there because there were no such persons belonging to the then Earls except John Lacy Constable of Chester who was not made Earl of Lincoln as appears in your Historical Antiquities page 270. till the 23 of November 1232. which was but four years and upwards before the death of John Scot the last of the said Earls yet there were ever antiently persons of good quality that were Judges of Chester and if it had not been always a place of great repute the Kings of England would never have made such very great persons to have succeeded them therein As to what you alledge in the 18 19 20 and 21 pages of your Answer I do not doubt though you affirm it can never be proved but that I have already in my former Book given most persons satisfaction that Amicia was of the Half-Blood to Earl Randle by a former wife of Earl Hugh And whereas you object that it is more rational to imagine that Earl Hugh matching his only Daughter which he had by a former Wife would have married her to as considerable a person as was either provided by himself or his Son for his younger Children by a second venter I do answer and say That I am not certain whether Amicia was the only Daughter that Earl Hugh had by his former Wife because I know some that pretend they can tell of some other Daughter or Daughters which the said Earl Hugh had by his said Wife but I do confess I have never seen just proof of any but her but supposing her to be the only Child by his first Wife I have in my former Book pa. 23 24 and 25. shewed that there is no strength in this Argument of yours And I may here further add that if you will search for examples you may find very many where the elder Sisters sometimes because swayed by their affections and sometimes for other reasons have not been married to so great persons as the younger Sisters have been neither can you tell what portions Earl Hugh gave to Amicia or to any of his other Daughters neither is there any necessity that the elder Sister because by a former wife must have as great a portion as a younger Sister by a latter Wife because many times persons are not able to give so great portions in their younger days as afterwards and because the Children of the living Wife are oftentimes better provided for than those of the dead Wife and of this I could if I pleased instance in some that I know and in case the Father dye and leave onely issue Female by a first and a Son and issue Female by a latter wife as in this case there is great likelihood besides the advantage that the Sisters by the latter wife would have by being Heirs at Law to their Brother he dying without issue that the Brother will naturally be more kind to those Sisters that are of the Whole-Blood and about the same age and bred up with him than he will be to her that is but his Half-Sister and much older then himself And whereas you say pa. 18 and 19. that the expectation of Earl Randle Blundevile's Sisters of the Whole Blood which I conceive added to their fortunes whereby they matched to so great persons could not be much being grounded upon great uncertainties since it could not be foreseen when they married that their Brother should dye without issue who afterwards married two wives successively purposely to have issue of his own Body to inherit his own Lands I do think if you consider it you cannot in good earnest believe that the said Earl Randle Blundevil's four Sisters were married before the said Earl married his first wife whatever they were when he married his second wife For Bertred the Mother of Randle Blundevil being aged but twenty four years when her Husband Earl Hugh died as appears Rot. de Dominabus pueris c. in Scacc. penes remem R. sub Tit. Linc. Rot. 1. and the said Randle as appears in your Historical Antiquities page 146. being married to Constance the Widow of Geffrey fourth Son of King Henry the II. and Daughter and Heir of Conan Duke of little Brittain and Earl of Richmond in the year 1187. at which time the said Bertred was but about Thirty years old Can any one think that all the five Children of the said Bertred were then married And whereas you say that it was I who informed you of the three eminent Judges and four Heralds that were of opinion that Amicia was Legitimate If your meaning be that I was the only person who informed you thereof I must impute it to the weakness of your memory which fails you in this particular For you had many times seen our Pedigree attested by Mr. Cambden and Mr. Sampson Erdeswick who did allow her to be a Legitimate Daughter and several years since two other Heralds who are yet living at Chester did declare to you in my hearing that she could not be a Bastard and the one of them then named to you a Chief Justice of the Common Pleas and a Lord Keeper of the Great Seal of England both now deceased who did concur with them therein and you have also seen an opinion of a Third Judge under his Hand together with Reasons for the same and though you speak so slightly of the opinions of Judges and Heralds in comparing them to Hands got to a Petition or Certificate and pretend it was without hearing the Reasons on the other side I very well know though it seems you have forgotten it that that hand which was obtained was procured because you seemed to desire to know his opinion in the case And I also know that those two Heralds who at Chester did declare their judgements against you did then hear all the reasons that you could then alledge As to what you say pa. 22 23 24 25 26 and part of the 27 in all which you would willingly prove that the Common-Law is now altered some other way than by Statute you do but lose your labor and can never prove the same For in that Maxime of the Law where it is said That whatsoever was at the Common-Law and is not ousted or taken away by any Statute remaineth still the words ousted or taken away must needs be taken conjunctively and must necessarily bear this sence that the Common-Law still is the same in all points as it was before except where taken away by Statute and if those words should be taken otherwise then the meaning would be this that that part of the Common-Law which doth remain doth remain which would be a very strange Maxime And whereas you heretofore urged some places to prove that the Common-Law is alter'd at this day from what it was in former ages long after the time of King Henry the II. which you now also urge again in the 24 page of your latter Book I must give you the same answer which I formerly did viz. That
those places do not prove that the Common-Law at this day doth vary from what it was in former ages in any particular but onely that it was taken to be otherways in those days and that it was but just like some Cases in our Reports which have at several times been adjudged directly contrary to each other but notwithstanding that the Common-Law was still the same And that I might come as near you as I could I did then acknowledge that though the Common-Law was ever the same where not alter'd by Parliament yet in former ages they did in some particulars take the Law to be otherways than they now do And I did also acknowledge that if you could prove that they had done so formerly in this case of Frank-Marriage that it would have taken off much of the strength of my Argument from the words in libero Maritagio because that antient Deeds and Grants according to what my Lord Coke on Littleton says fol 8. b. at the bottom are to be expounded as the Law was taken to be at the time of the Grant Now these places which you alledge do not prove a change of the Common-Law in any particular other than by Statute but only that the Law was sometimes differently taken in one Age from what it was in another Age for in your 24 page where you cite Coke upon Littleton fol. 34. Sect. 39. you do not there say that my Lord Coke's words were That the Law was different in Glanvile's time in the particular you there mention from what it is now but you say that he saith that in antient times as it appears by Glanvile lib. 6. cap. 1. it was taken that is the Law was taken that a Man could not have endowed his Wife ad Ostium Ecclesiae of more than a third part but of less he might but at this day the Law is taken as Littleton holdeth which is That a Man may Endow his Wife ad Ostium Ecclesiae of his whole Land or of the half or other less part which is the very same thing that I said And where you again cite Coke upon Littleton fol. 8. a. towards the bottom you bring him in saying that of antient time the Heir was permitted to have an action of Debt upon a Bond made to his Ancestor and his Heir but the Law is not so at this day but my Lord Coke doth not say as you do viz. That the Law is not so at this day but that the Law is not so holden at this day so that he still avoids the expression of the Law being changed otherways than by Statute although it was differently holden in several Ages And thus as you may see Coke upon Littleton fol. 21. b. in the Case of Piers de Saltmarsh and others it was judged in King Edward the Thirds time and in King Edward the Fourths time That a Man might give Land to his Son in Frankmarriage but in King Henry the Eighths time it was holden otherways the former Books being not remembred But notwithstanding that this point was judged thus differently the Law was still the same and all that can be said is that some of the judges did not judge right according to the Common-Law and indeed if this Rule of yours was true that because the Judges in one Age did take the Common-Law to be otherways than it was taken in former Ages that therefore the Common-Law was changed The Judges then could never do contrary to the Common-Law For when they had declared though erroneously that the Common-Law ought to be otherways taken than it was formerly the Common-Law by your Rule would be thereupon changed and what they did would ever be legal The absurdity whereof every one may easily discern What you say page 27 28 29 30 and 31. to all those Reasons which I did give to shew that whensoever the word Mulier is used in the case of Frankmarriage it shall by common-intendment be understood of a Woman that is of the Kindred will I believe give no knowing person any satisfaction at all for though you pretend your self to be very pleasant when you say you have seldom known nor you believe any other any such question as this Whether Hugh Cyveliok had a former Wife to be proved by argument of Scripture or nicety of Law which is meerly a question of History yet certainly the understanding Reader will easily perceive that this is but a shift and will also discern that I did not bring that place of Scripture to prove that Hugh Cyveliok had a former wife but that I made use of it by way of answer to take off what you had alledged and I do not at all doubt but that Text will fully satisfy that all expressions which seem Universal are not always to be expounded without any limitation at all but as you would extend that expression of Glanvill too far so you run to the other extream concerning this of Deuteronomy 14.26 and would restrain these words or for whatsoever thy soul desireth only to those things there mentioned viz. Oxen Sheep Wine and strong Drink which would be a Tautologie and several times in the same verse give them liberty to make use of Oxen Sheep Wine or strong Drink whereas undoubtedly the Jews at their said Feasts had also liberty to eat the Goat the Hart Roe-Buck Fallow Deer Wild Goat Pigarg Wild Ox the Chamois as also all clean Fowls Fishes and other clean meats whatsoever allowed them by their Law and therefore this expression being as universal as that of Glanvill and yet being to be expounded so as to agree with the Laws of that Kingdom why should not this seeming universal expression of Glanvill be so expounded as to agree with the Laws of our Kingdom And if so sure what I say is to the point in hand Also If this Text of Scripture should be restrained as you would have it it would not contradict but confirm what I said For what expression can seem more universal than this viz. whatsoever thy soul desireth and yet you confess it ought not to be understood without some limitation and indeed you restrain it more than I do And though it be true that Bastards both were and yet are capable of receiving Lands after they have gained a name by reputation yet they are not capable of having Lands passed with them in libero maritogio though it be passed with them by the name of Daughter without the addition of Bastard and though you pretend that Amicia had gained a name by reputation yet you do not nor cannot tell what it is for certainly Amicia and Daughter are not any reputed names Neither do I put my argument about Glanvil's contradicting himself as you put it as will appear pa. 34 and 35. of my former Book so that you leave what I there say wholly unanswered Neither do I say that the Lawyers of latter ages do expound the Law that Lands cannot pass in Free-marriage with
Lands in Free-marriage with his Bastard Daughter yet there are other wayes whereby any Man that pleases and hath a disposing power may settle Lands on a Bastard Daughter and her heires Also if Glanvills words did prove as you would pretend they do To what purpose should men in those ages leave the word Bastard out of their Deeds of Free-marriage to their bastard Daughters with design thereby to cause such lands to continue to them and their heirs if such gifts might be made with any woman whatsoever so that you never observe how finely you have argued here against your self VVhere you say in the 34 35 36 and 37 Pages of your Book that though you do not find Geva called a Bastard in express terms yet you find it implyed in an Author contemporary meaning Ordericus by certain and sure consequence which you believe can never be fully answered and for the fortifying of which you pretend to give some reasons Give me leave since you give the occasion again to say what I have formerly said viz. that though Ordericus speaking of Hugh Lupus his death doth add these words Richardus autem pulcherrimus puer quem solum ex Ermentrude filia Hugonis de Claramonte genuit I am not yet satisfied but that he might as well mean that he was the only Son which Earl Hugh had by Ermentrude as that he was the only child that he had by her For there is no necessity to take the word solum adverbially neither is it marked as an Adverb in Ordericus his Book though it be so in yours and yet in his Book Adverbs are usually marked And though you alleadg that Ordericus doth not say quem solum filium as I interpret him but indefinitly quent solum ex Ermentrude genuit and so whether solum be understood adverbially or whether it be taken for a Noun no more can be made of it in English than thus Richard a beautiful youth whom only Earl Hugh begot on Ermentrude c. and so whether we English it whom only he begot or whom he only begot it retains the same sense and shews that no other person either Son or Daughter was begotten on Ermentrude by Earl Hugh You must give me leave to dissent from you herein For I conceive this expression of quem solum genuit doth amount to as much as if he had said quem solum filium genuit which if it do then notwithstanding the said expression Earl Hugh might possibly have a Daughter or Daughters by the said Ermentrude For to what Antecedent can the word quem so properly relate as to the word puer and if so then quem solum puerum is as much as quem solum filium and so doth not exclude him from having a Daughter or Daughters by the said Ermentrude For though the word puer be by some understood to signifie a Child of either Sex as you also seem to take it in your Historical Antiquities p. 113 114. But misprinted 121 122. Yet Mr. Gouldman in his Dictionary will tell you that it is a mistake where on the word puer he thus writes Nonnullis habetur communis generis sed male ex Ovidiano illo Carmine de Iphide puella in puerum mutata Dona puer solvit quae faeminavoverat Iphis. And though you say that Geva could not be by any former Wife because Earl Hugh had never any other Wife Yet that is more than either you or I know for there were many things done in those Ages which never came to our knowledges And therefore I do not take upon me to tell whether Geva was by a former Wife than Ermentrude or whether she was by Ermentrude or whether she was a Bastard But I say she might be any of the three for any thing that you have yet proved and so long as it is uncertain what she was you can bring no considerable Argument from her against Amicia And if you could prove her a Bastard it would signifie nothing because the Deed made to her is not a gift in Frank-marriage as hath formerly and will hereafter appear And whereas you ask p. 36. Being I expound the words of Ordericus to be that Earl Hugh had no other Son What advantage it is to my purpose unless Geva was that Daughter and was legitimate I answer That possibly Geva might be that Daughter or possibly Geva might be by a former Wife and that Daughter which Earl Hugh had by Ermentrude might die before Earl Richard so that nothing of certainty can be gathered from such Arguments as these As to what you say p. 38 39 40 41. that I am not to argue upon possibilities and because it might possibly be so to say that the Earldome of Chester was antiently entayled on the heires Males I Answer That I do not positively aver any such thing But let the case be how it will and whethersoever Geva or Randle de Meschines was the heir general to Richard Earl of Chester it seems to me that the said Earldome did not come by descent to the heir general whoever that was For it clearly appears that Geva had it not and Randle de Meschines had it not by descent For if what James York in his Vnion of Honour p. 105. sayes be true Randle de Meschines was made Earl by Grant of King Henry the First and Ordericus p. 876. tells us that he restored to the said King Henry all the Land which he had by his Wife the Widow of Roger de Romara for the Earldom of Chester which was more than was needful for him to do if he had a good title thereto by descent And whereas you ask me Why may I think that the King though he gave it to Randle did not give the honour and lands unto him as in whom was the greatest right to have it and do say that to this I give no answer at all I may well tell you that I could not give an Answer until you did ask the Question and you never asked the Question in your former Book But the Answer which I shall now give to this Question is That I suppose Kings in such cases do that which to them seems most just but yet Kings in these cases as well as in others are of different Judgments from one another very many times and indeed the very same Princes will be sometimes of one mind and sometimes of another mind concerning the same thing And thus we see when Randle Blundevile Earl of Chester dyed which was in the year 1232. King Henry the Third did suffer the four Sisters of the said Earl Randle who were of the whole blood to inherit that estate and the said Earldome went to John Scot son of David Earl of Huntingdon in right of Maud his Mother the eldest of the said four Sisters But when the said John Scot dyed which was in the year 1237 the said King Henry the Third would not suffer the said Earldome of Chester to come to any
Bishop of Chester as appears by the Third Part of the Monasticon page 218. as also by Bishop Godwin Jsaackson Doctor Heylin Simeon Dunelmensis Matt. Paris and many other antient Authors from about 1128. until about the year 1148. or 1149. which fell out to be in the time of Randle de Gernoniis for he was Earl as appears in your Book from about the year 1128 till about the year 1153. And I doubt not but to make it as clear that a William was Archbishop of York in the time of the said Randle de Gernoniis and Roger Clinton and though the said William was afterwards ousted yet whilst he enjoyed that Archbishoprick he was and would in Deeds and otherways be owned as Archbishop of York Now that a William was Archbishop of York in the time of the said Earl and the said Bishop I have already shewed you in my former Book out of Isaackson's Chronology and shall thus make it further to appear If you look into Bishop Godwin's Catalogue of the Bishops of England printed at London 1615 page 581. in the life of Heny Murdack Archbishop of York you may find him saying thus King Stephen had a kinsman named William 1142. Stephen 8. that was Son unto Emma his Sister by Earl Herbert a Man no less noble in Mind and Vertue then Stock and Lineage He being Treasurer of York was now elected unto the Archbishoprick and having obtained Consecration also sent to Rome for his Pall. His speed there was not so good as he looked for by some Adversaries many exceptions were taken against him whereby it came to pass not only his Suit was put off and stayed for that time but also Process awarded to admonish him to come thither in Person to answer the accusations laid against him At his coming to Rome he found his Adversaries many and Mighty And among the rest it is remembred that St. Bernard then living was very earnest against him Eugenius the Pope had been brought up in the Abbey of Clareual under St. Bernard together with Henry Murdac whom Williams adversaries had set up to be a Suiter for his Archbishoprick The Pope being thus carried away with the perswasion of his old Acquaintance and some shew of matter was content to deprive William and to place Henry Murdac in his room whom he caused to be Consecrated presently and sent him home into England with his Pall. King Stephen hearing this Newes was much grieved with the disgrace of his Nephew which all Men judged undeserved Therefore He stood upon Termes with the new Arch-bishop and required him to Swear unto Him fealty in some extraordinary manner and when he denyed easily took occasion of displeasure against him The Townsmen of York that loved William exceedingly for his Gentleness and Vertuous behaviour amongst them hearing how the King was affected refused to receive Murdac into their City For this resistance he suspended them which notwithstanding Eustach the King's Son commanded Service to be said as at all other times was accustomed By means hereof as also by reason that the King's Officers were very terrible and heavy enemies unto all that had laboured for the Deprivation of William Seditions and Tumults were daily raised in the City amongst which a certain Archdeacon a Friend of the Archbishop was slain Two or three years these stirs continued till at last the Kings wrath by means being appeased York-men were content to receive their Archbishop peaceably He governed very austerely the space of ten years dyed Octob. 14. 1153. at Sherborne and was buryed in his Cathedral Church And when Bishop Godwin hath thus said he presently after tells you how the said William there called Saint William after the death of Henry Murdac was again restored to the said Archbishoprick Also if you look in John Brompton's Chronicon col 1028. l. 63. in the life of King Stephen you may find him thus saying Dicto autem Thurstino Eboracensi Archiepiscopo Monasterii Fontanensis aliorumque octo fundatore ut dictum est decedente and he dyed sayes the said Brompton col 1028 l. 25. in the year 1140. with which Bishop Godwin doth accord Singuli Ecclesiae Eboracensis Canonici beatum Willielmum ejusdem Ecclesiae Thesaurarium praeferunt tam pro honestate morum quam excellentia meritorum Iste namque Willielmus ex spectabili prosapia Regis Stephani ortus praeclaris natalium titulis fuerat insignitus erat enim silius potentissimi viri Comitis Herberti Qui quamvis post decessum dicti Archiepiscopi Thurstani ad sedem Eboracensem electus fuerat invidia tamen impetuosus amor dominandi quemdam ejusdem Ecclesiae Archilevitam adeo in regionem dissimilitudinis traxerant ut inter eligentes discidium excitavit ipsum Willielmum a saniori parte eïectum impediens licet de ejus electione clerus populus acclamassent laudum praeconia suspenditur igitur causa ad Apostolicae sedis examen provocata See also the said Brompton to the same purpose Col. 1041. l. 10. Also Roger Hoveden who lived in the time of King Henry the Second King Richard the First and King John in the First Part of his Annalls Printed at Frankfort 1601. Page 490. l. 51. writes thus of the Restitution of the said William eodem anno obiit Henricus Eboracensis Archiepiscopus quo defuncto Willielmus Archiepiscopus quem Papa Eugenius suspenderat Romam profectus est invenit gratiam apud Anastasium Papam redditus est ei Archiepiscopatus Eboracensis And I think it is not to be doubted though I have not yet found the place but that the said Hoveden doth speak of his being chosen after the death of Thurstan because Isaakson in his Chronology cites Hoveden for what he there sayes but he names not the Pages Also Thomas Stubbs a Dominican writing of the Archbishops of York col 1721. l. 15. thus sayes Vicessimus nonus successit in Archiepiscopatum Eboracensis ecclesiae Henricus Murdak â—isterciensis ordinis Monachus ae professor probatissimus vir magnae sanctitatis abstinentiae laudabilis Defuncto namque ut praemittitur Thurstino Eboracensi Archiepiscopo convocatisque ad electionem pontificis Canonicis ecclesiae Eboracensis Willielmus ejusdem Ecelesiae Thesaurarius Canonicus exigentibus suis meritis a Majori saniore parte in Archiepiscopum est electus Erat enim strenuissimi Comitis Herberti filius ex Emma sorore Regis Anglorum Stephani progenitus Vir quidem genere nobilis sed morum excellentia vita mundissima incomparabiliter insignis Interea vero Osbertus archidiaconus Eboracensis invidiae stimulo agitatus facta inter eligentes dissentione confirmationem ipsius electi licet ab omnibus dignus haberetur pertinaciter impedivit suspenso igitur negotio partibusque coram Romano pontifice super hujus electionis discussione personditer vocatis idem Willielmus persequentibus illum adversariis suis injuste accusantibus conseerationis gratiam minime potuit optimere Lite ergo in
Bastards now ergo it was so taken in Glanvil's time but I have given you many reasons why the Law was taken in the time of Glanvill in the point of Free-Marriage as it is taken now to which you give no other answer but that you will leave it to wise Men to judge who will take the paines to scan them whether they be pertinent And I do willingly appeal to all wise men whether that be an Answer to those Eight Reasons for if it be I am much mistaken therein But what will you say though I did admit it to be so because I would put the Case as hard as I could upon my self if Glanvil by those words of his Lib. 7. cap. 1. Quilibet liber homo quandam partem terrae suae cum filia sua vel cum aliqua alia qualibet muliere dare potest in Maritagium sive habuerit haeredem sive non velit haeres vel non imo eo contradicente did not say or mean that a man might give lands in Free-marriage with any woman whatsoever but only that he might give lands with any woman in that kind of Marriage which was not free For if you observe him well he doth not there say that any man whatsoever can give Lands in liberum maritagium with any woman whatsoever but only that it may be so given with any woman in Maritagium Now that Maritagium is two-fold Glanvil himself tells you Lib. 7. cap. 18. where he sayes Maritagium autem aliud nominatur liberum aliud servitio obnoxiums liberum dicitur Maritagium quando aliquis liber homo aliquam partem terrae suae dat cum aliqua muliere alicui in Maritagium ita quod ab omni servitio terra illa sit quieta a se haeredibus suis versus capitalem dominum acquietanda in hac quidem libertate ita stabit terra illa usque ad tertium haeredem nec interim tenebuntur haeredes inde facere aliquod homagium post tertium vero haeredem ad debitum servitium terra ipsa revertetur homagium inde capietur Many of which words of Glanvil you may also find cited by my Lord Coke on Littleton fol. 21. b. Now if you well observe it Glanvil doth not there say that a man may give Lands in liberum Maritagium cum qualibet muliere but only in Maritagium But when he speaks of Free-marriage he useth the expression cum aliqua muliere with some woman viz. one of the Kindred so that without doubt he using the same expression with Mr. Bracton who was the next VVriter after him he also understands it in the like manner as the other did But if Mr. Glanvill's expressions Lib. 7. cap. 1. had concerned Free-marriage yet I have formerly shewed that the word Mulier in that case could only have been understood of a woman of the Kindred Also my Lord Coke upon Littleton fol. 21. b. when he hath told you that one of the four things incident to a Frank-marriage is that the VVoman or Man that is the cause of the Gift be of the blood of the Donour not long after on the Margent of the same Page quotes Glanvil lib. 7. cap. 1. the place on which you build which he would never have done if that place had been contradictory to his opinion and certainly if Glanvills words in that place are to be understood as you would have them they do contradict what my Lord Coke there sayes unless the Law in that point was taken after one manner in Glanvil's time and after another manner in my Lord Coke's time which if it had been so my Lord Coke had been concerned to have taken notice thereof having no otherway to reconcile it with what he had said What you say pag. 32 33. is not at all to the purpose For you there tell us that Bastard Sons bastard Daughters bastard Brothers c. in all Settlements and Conveyances of these last antient Ages are termed Bastards but you say that was never used in the Antient Ages But this is only your bare saying without any proof at all so that your word herein will not pass unless you had shewed us several antient Settlements and Conveyances in which bastard Sons bastard Daughters bastard Brothers c. are named without the word Bastard joyned to them which I am confident you cannot do unless when very great persons are named who by reason of their greatness are usually excepted in such cases as those And indeed you do not only want proof to make good what you here say but I have formerly brought proof of the contrary from Sir Henry Spelman who in his Glossary on the word Bastardus sayes Quoties enim agitur de honore vel commodo filiorum appellatione siliorum non comprehenduntur bastardi And as to what you affirm that Bastards be of the blood both now and in former ages though the Law will not allow them so because they now are esteemed in the eye of the Law quasi nullius filius For if A. have a Bastard Son or Daughter which is really his they must needs be of his blood for no Law can extinguish Nature though by common Law they are not now esteemed so There is no force in what you so say Because in this case Children are looked at as they are in Law and not as they are really because it cannot be known what they are really And therefore if A. have a bastard child which is really his yet it shall not inherit because it is in Law nullius filius and on the other side If A. have a Wife who doth play false with him and hath a Child begotten of her body by another man yet this Child shall inherit because it is in Law the Child of A. And whereas you also ask the Question What if you say that the reason why in the Deeds of those elder Ages they were called Daughters without any addition of Bastard whereby the party owned them to be of their blood was that the Lands passed in libero maritagio with such might descend to their heires For our Lawyers now tell us that Bastards are capable of receiving Lands after they have gained a Name by reputation Why may not then Bastards having gained the names of Daughters receive a grant from their owned Fathers either in Frank-marriage or otherwayes Your Question will be easily answered because the consideration of the Gift in Free-marriage is the blood that is betwixt the Donour and that Donee with whom the Land is given But a Bastard is not de sanguine patris Dyer Fol. 374. b. and the calling of any person Daughter who is not so in Law will not make her of the blood for if that would serve a Man might call any other Woman his Daughter that is not so and then give Lands with her in Frank-marriage Besides to what purpose should such tricks as these be used which will not hold when though a Man cannot give