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
add for my self that in my Answer to his Defence of Amicia I think no man can shew me any one uncivil expression in the whole book but afterwards when he had in his following books taxed me unjustly in many things and carped at every thing in mine Pertinent or Impertinent I confess I was more severe in my expressions in my latter books but he led the way what I have said was but in vindication of my self for my Reputation is as dear to me as his can be to him and though my expressions sometimes may seem tart yet not so opprobrious neither as he makes them had he kept close to the point and avoided his Calumnies and Cavils and confest his Errors more ingeniously throughout I should neither have had occasion to retort nor have Answered to them And what I have written above my first intention he hath forced me thereunto But now he will appear no more in Print against me if what I shall write hereafter be no more to the purpose than what I have said in those two last books Whereunto I say that for certain there is so much already said to the purpose in them as is not yet solidly and substantially answered by him and herein I submit my self to all Ingenious Readers Mobberley May 28 1675. PERORATIO AD LECTOREM SInce I writ this Second Reply I am credibly informed that Sir Thomas did write to some of his Friends about May or June Anno Domini 1675. to this or the like effect I hope now the Contest between Sir Peter and me will be at end for Mr. Dugdale in his Baronage of England page 41. hath delivered his Opinion on my side and Sir Peter having appealed to the Judges Mr. Dugdale thereupon did move them in the Case and they upon mature debate determined that Amicia was no Bastard I have seen his last Sheet which I have Answered but shall not yet Print it 1. This Letter was shewed up and down Chester purposely to delude the easie multitude for since he cannot demonstrate or support the legitimacy of Amitia either by good Reason or Authority Sir Thomas used this secret practice to gain a belief of his Cause as supported by Opinions whereas in truth there is no such thing as a mature debate by our Reverend Judges in the Case of Amicia for as yet the Case in Law is not agreed upon by both sides how then can there be a mature debate or determination of the Controversie for Sir Thomas faith in his Answer to my two books pag. 61. that the point must be otherwise proved than by such a frivolous question as mine is and a little before pag. 60. he saith that in the Epistle Dedicatory wherein I appeal to the Judges I do not put the question aright whereas there can be no other point of Law to be resolved as to the Controversie in hand but this Whether Lands in those elder Ages might and did Lawfully pass with Bastards in libero maritagio or no That they might and did so pass I have before in my other Books clearly proved as well by the very words of Glanvil himself and the Law then no where disallowing the same as also by three sure Precedents of those Ages But because Sir Thomas takes this upon trust from Mr. Dugdale I shall here in publick unmask that Letter more fully to the undeceiving of all men 2. As to the Opinion of Mr. Dugdale it is true he hath delivered his opinion for the Legitimacy of Amicia in his Book of the Baronage of England newly Published Tom. 1. pag. 41. And it is no more than what Sir Thomas formerly told us in his books That he was of that judgment before he published his said book of the Baronage What then many very wife and knowing men have declared their Opinions with me that she was a Bastard both Divines and Lawyers and other grave and understanding men but I shall examine these things more particularly 3. And in the first place I shall always desire to be understood without the least detraction from the honour and due praise of Mr. Dugdale of whom I have ever had a good esteem as a most diligent and indefatigable searcher of the Records and Antiquities of our Nation Sed Bernardus non videt omnia nor should I now have mentioned him at all for his opinion herein but that Sir Thomas Manwaring brings him here upon the Stage Only we may by the way take notice that some years agoe Mr. Dugdale did draw up Sir Thomas Manwaring's Pedegree wherein he puts Amicia the Wife of Rafe Manwaring without her due distinction as I conceive of a Bastard and is therefore the more concerned to stickle for Sir Thomas in this Contest between us So that formerly he consulted some Lawyers for their Opinions in this Case of History for whether Bastard or no Bastard hath nothing of Law in the Case or whether Hugh Cyvelioc Earl of Chester had any former or other Wife besides Bertra these are questions to be resolved by History Records and Reason but Mr. Dugdale would now support his opinion with a point of Law and therefore moved some Lawyers for their opinions but how the Case was stated no body but himself knows nor what the point of Law was wherein they delivered their opinions and methinks it argued some doubt within his own breast that she was a Bastard otherwayes why should he consult any Lawyers in the case and in truth let the Law be what it will she was certainly a Bastard which to my poor reason is as plain as the Sun when it shines but it seems he was satisfied with the Opinions of those Lawyers that she was Legitimate because saith he it is a known Maxime in the Lavv that nothing can be given in Frank-marriage to a Bastard but this Maxime is to be understood vvith a due distinction of the times and ages othervvise it will fail but I shall anon speak more of this and of his moving the Judges in the Case wherein I should be glad to see vvhat Case he put and the resolutions of our Reverend Judges thereon under their hands in the mean time I shall go on with Mr. Dugdale's Opinion whereon Sir Thomas so much depends 4 In his said Book of the Baronage of England pag. 34. b. he calls Robert and Ottiwel two Illegitimate Sons of Hugh Sirnamed Lupus Earl of Chester wherein he is to be commended for speaking out for so they were without all doubt Hovvbeit I find not any Author hitherto vvho have Written of our ancient Earles of Chester Commemorating either these or any other at all as Bastards to any of our ancient Earls of Chester neither Brooks in his Catalogue of Nobility nor Vincent in his Gorrections of Brook nor Milles in his Catalogue of Honour nor Fern in his Lacyes-Nobility nor Powel in his Notes on the Welsh-History pag. 294. nor yet Mr. Dugdale himself in his Warwick-shire till here in his late
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.
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
other Judges in those Ages Surely it was Anciently used for any of our Judges Glanvil mentioning the form of Original Writs hath it thus quod sit coram me vel Justitiis meis So also Hoveden and other of our ancient Historians used Capitalis Justitia Angliae for the chief Justice of England But Bracton compiling a Book of the body of our Law in Latin under King Henry the third he changed the word Justitiis into Justiciariis and setteth down the writs accordingly coram Justiciariis nostris Since which time in all Writs and Commissions upon Record they have been stiled Justitiarij Lamberds Eirenarcha lib. 1. cap. 1. And then for his profound Observation that Justitia is here of the Masculine Gender according to the Rule Mascula nomina in a dicuntur multa virorum Yet he hath left out three or four of the next words following which might fitly have been added to that book of his Ut scriba assecla scurra rabula But now for the words of the Deed It is certain that here Earl Randle calls the Judge of Chester my chef Justice and the words of the Deed before-mentioned I conceive runs thus in English That the said Andrew and his Heirs should not Answer concerning any Suit or Complaint entered in the City of Chester or without either in my presence or in the presence of my chief Justice And it is a rare precedent without a Parallel I believe in this kind that the Earl here calleth him my chief Justice undoubtedly for some reason here intended and but accidentally neither possibly in distinction from the Judges of his inferiour Courts for certainly they were never called chief Justices of Chester in those Ages by common appellation as at this day they be called neither then were there more Judges of Chester than one at a time nor doth this example prove it otherwise nor is the Judge here stiled Chief Justice of Chester only the Earl here calls him my Chief Justice speaking as it were in his own person nor will this at all excuse the errour and vain glory of Sir Thomas speaking so of Rafe Manwaring and calling him as at this day we call the Senior Judge of Chester it was a Trip it overslipt him but he will seldom acknowledge any errour Again This Deed was made between the year 1188. and 1200. for all that while Randle Earl of Chester assumed the Title of Duke of Little-Brittain in France which Title we see he had given to him in this Deed But it cannot be firmly collected that Ralf Manwaring was Judge of Chester at that very time when this Deed was made for he is there subscribed by the name of Ralf Manwaring only not stiled Radulfo Manwaring Justiciario Cestriae there as he is in many other Deeds and as he and all others were usually stiled while they were Judges and what Sir Thomas would stretch to have it so out of my Historical Antiquities it will not certainly follow out of my Notes that Ralf Manwaring was Judge of Chester all that time from 1188. till Philip Orreby was Judge there nor especially all the time while Randle was Duke of Brittain and therefore Sir Thomas cannot certainly conclude as he doth pag. 34. that Rafe Manwaring was Judge at that very time when that Deed was made Pag. 35. to pag. 41. are things not worthy my taking notice of nor pertinent to the main point and have all formerly in my other books been Answered by me over and over again and therefore I shall here pass them by although if I would cavil as Sir Thomas doth at every pidling thing I could find many errors therein Pag. 43. Of his Answer to my two Books Here he saith he is very confident Sir Peter cannot prove that persons who were under age did then use to joyn with their Mothers and to give away their Lands of Inheritance 2. And then after a long harangue and writing down of Mr. Selden's words which I had before cited he saith pag. 45. which is all the Answer he gives to my Precedent that is material that Earl Richard confirmed the Hyde of Land which Droco de Andeleia had given to Abbington-Church and a little after addeth what is this to the Case of Hugh Cyvelios who did pass away Stivinghale to the Bishop of Chester and his Successors for ever My Reply I say it is the very self-same Case one as the other for Earl Richard and Earl Hugh do both joyn with their respective Mothers both under Age but now forsooth the difference he would put is this that the one confirms another man's grant the other grants away certain Lands for ever I would fain know if a grant of Lands for ever by one under Age and joyning with his Mother be invalid why a confirmation of Lands by one under age also and joyning with his Mother would not be invalid likewise but this confirmation of Lands for ever held firm and the Lands continued to the Church of Abbington accordingly So we see how he doubts not but what is there said will give all men satisfaction without rendring any Reason at all of the difference in those two Cases And I am very confident Earl Hugh could not be twelve years old when he joyned with his Mother in the Grant of Stivinghale and if the grant were made about the year 1156. to wit about two or three years after his Fathers death I rather think that Earl Hugh was not above eight years old when he joyned in that Grant But certainly Sir Thomas is far wide when he saith pag. 45. that Earl Hugh was old enough to take Melyeneth-Castle anno 1142. or that he was 23. years old Anno. 1153. in which year his Father dyed most absurd and without any ground at all But since I writ this second Reply I have received a sure Record that proves Earl Hugh could not be above three or four years old at the death of his Father Anno 1153. and will lay asleep for ever all those false suppositions of Earl Hugh's Age whereof see more in my Peroratio ad Lectorem at the end of this my second Reply Pag. 46. Of his Answer to my two Books Here he tells the Reader that I gave him a Pedegree of the Barons de Monte alto In which I make the first Robert de Monte alto who I said lived in King Stephen's time to have Issue two Sons Rafe and Robert who were afterwards successively Stewards of Cheshire all which saith he is certainly true I could wish he would as ingeniously confess all other truths alledged by me and then he writeth out a Deed of Hugh Cyvelioc Earl of Chester out of my Historical Antiquities whereunto Robertus Dapifer de Monte-alto was a Witness 1. And then pag. 48. he saith this must needs be the first Robert de Monte-alto and if this Deed of Earl Hugh was made immediately before the death of this Robert then Earl Hugh was a great deal
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
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
was no Bastard for many irregular Deeds may sometimes pass which in strictness of Law might not prove authentical But I conceive the Law in those elder Ages would and did allow such grants and we plainly see he waves the question and will not abide the test and it may suppose too that the Opinions of some Lawyers which he brags on in his books were procured by putting off a wrong Case I will also agree with him to put the other Case to the Judges as he would have it put videlicet whether the Law be not now altered in this and sundry other particulars from what it was in elder Ages and that without any Act of Parliament for otherwise Lands would now pass with Bastards legally in libero maritagio Pag. 61. Of his Answer to my two Books Here the saith that if I had been so conversant in Divinity as I would have the Judges to believe it seems strange to Sir Thomas that I had not learned by duty better to my deceased Grand-mother for we are bound to Honour all our Parents mediate or immediate living or dead and so compares my writings of these books to the wicked act of Cham in the Scripture who divulged the shame of his Parent My Reply In the first place let me observe to the Reader that this is he who oft blameth me for misrepeating and yet runs into the same errour himself and tells us here that I would have the Judges to believe that I am much conversant in Divinity let him shew me where I say so if he can or that I make or say that I am conversant in Divinity my words are I prefer Divinity above all other Studies this is far from saying I am conversant in Divinity In the next place this act of mine cannot by any rational man be said to be like that of Cham for he revera saw his Fathers Nakedness and did not cover it but told his Brethren without now I could not see my said Grand-mother's nakedness in that sence who dyed above 450. years agoe nor will any man say but himself that I have uttered any scornful or disgraceful words at all against her Expositors on the Fifth Commandement tell us it includes in it the honouring of Kings and all in Authority over us as well as our natural Parents to whom we owe honour and reverence in like manner And tell me vvere ever any of those vvorthy Persons or Historians vvho have commemorated the Wises and Concubines Children and Bastards of our Kings of England in their Histories ever tearmed Chams for the same Nay doth not Moses himself in his History of Genesis chap. 38. Record the Whoredom of Judah who was great Uncle to the Father of Moses with Thamar his Daughter in Law and also her Bastard-Twinns Phares and Zarah Nay are not these Twinns reckoned up in the sacred Genealogy Matthew Chap. 1. How many great and most honourable Families have been descended from Bastards Kings Dukes Earls and others I have heard that King James used to say it vvas a good Family that had neither Whore nor Thief a Kin to it I am sure it is a rare Family that never had any Bastard But Sir Thomas saith that in some respects I have exceeeded that Pattern of Cham †pag. 62. though I have done nothing at all like that Act of Cham I am sure he is Kim-Kam from the point but he forgets his ovvn duty as to revilings 1 Cor. 6.10 and follovvs not the Pattern of Michael the Arch angel vvho durst not take up a railing accusation against the vvorst of Antagonists Jude vers 9. and so much for the Case of Divinity vvhich he mistakes as vvell as his Lavv. It is as Lawful for any Historian to Record the Bastards as Lawful Children It is an error not to do it Pag. 62. Of his Answer to my two Books 1. Here he saith that in the second book which I direct to all the Judges of England it so falls out that there is nothing therein but what is in my former books and is already Answered though if there had he should not have presumed to have given any Answer thereto because those learned Persons know well enough what the Law was and is in all particulars 2. How-ever he cannot but observe how slightly I speak of the Lord Cook in my 48. page 3. And also how I have such light expressions in my book directed to the Judges as he believes were never used before by any Person of discretion to such Reverend and Learned men no wonder therefore if I speak coursely of him and tell him of so many impertinencies My Reply 1. To the first I believe there is something in that Second book which is not in my former books nor yet answered by him and though the Learned Judges know what the Law was and is better than either of us yet we may with modesty offer what we conceive is right to their more grave judgments but it is a good excuse 2. To the second I do not speak slightly of the Lord Cook in my 48. page nor any where else my words there are these As for the Lord Cooks citing of Bracton or Glanvil in the Margent as Authority for what he there saith if he maketh a false quotation or such as is not to the point neither I nor any man 〈◊〉 else are bound to believe the Lord Cook more than any other So let the Reader judge whether this be not another Trip. 3. To the third I conceive I I have no such light expressions that might not be used to our light Controversie or before Learned Judges nor yet such as were never before used by any person of discretion as he alledgeth he might have done well to have shewed what those expressions were but perhaps if they had been used by such a discreet Person as himself then they would not have been accounted light expressions but rather plain to the Point not rude at all Pag. 63. Of his Answer to my two Books He saith here in the very Conclusion of his book whether he be guilty of those Impertinencies or untruths or of that opprobrious Language which I do charge him with let the indifferent Reader be judge and whereas it appears that I am resolved to have the last word though I have nothing new to say and that my writing again be contrary both to my duty to my Deceased Grand-mother and to my promise in Print He declares that if what I shall write hereafter be no more to the purpose than what I have said in those two last books that he will not appear in Print against me any more My Reply To all which I say that I do not know that I have any where at all charged him either with Impertinencies or Untruths but what are so charged justly by me that I can suddenly call to remembrance And for opprobrious Language wherein this last Answer of his far exceeds I have only this to
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
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