that which Mr. Glanvil never said Indeed Mr. Glanvil says that Lands may be given cum qualibet Muliere with any Woman whatsoever in Maritagium but when he speaks of Gifts in Free Marriage he says they may be given cum aliqua Muliere with some Woman and the Law in this particular is still the same for Lands may now be given in Maritagium with any Woman whatsoever but Lands can only be given in Free Marriage with some Women viz. such as are of the Kindred of him who gives the Lands He also very much mistakes and wilfully I doubt the Deed made in the time of King John where he says Saher de Quency Earl of Winchester granted to Robert his Son and Heir certain Mannors ad dandum in Liberum Dotarium Hawisiae Sorori Comitis Cestriae Vxori ejusdem Roberti which Deed I shall here give you at large as I find it in the 133 page of his Historical Antiquities SAherus de Quency Comes Wintoniae omnibus Hominibus Amicis suis praesentibus futuris salutem Sciatis me concessisse dedisse praesenti Chartâ meá confirmasse Roberto de Quency Filio meo Haeredi ad dandum in liberum Donarium Hawisiae Sorori Comitis Cestriae Vxori ejusdem Roberti Bucehebeiam Grantesset Bradeham Herdewich cum omnibus earundem terrarum pertinentiis pro centum Libratis terrae Et si hae praedictae terrae non valeans per Annum centum Libras Ego in aliis terris meis de propriâ Haereditate meâ in Anglia ei tantum perficiam quòd plenari◠habeat centum Libratas terrae per visum considerationem legalium Militum hominum videlicet Comitis Cestriae meorum Et praeterea Dedi eidem Roberto Feoda duorum Militum scilicet Feodum Matthei Turpin in Winterslawa it Wilteshire pro servitio Feodi unius Militis ad dandum simul cùm terris nominati◠praedictae HawisiaeVxori suae in liberus Donarium Testibus his Comite Davide Willielmo Comite de Ferrars Philippo de Orreby Roberto de Basingham Ricardo de Lindescia Willielmo de Grumpington Henrico de Braibroc Willielmo de Syelford David Giffard Willielmo Picot Hugone Thoma Henrico Dispensariis Waltero de Coventrey Waltero Daivilla multis aliis And now as you may see in the 29 page of his second Book he says That in his Historical Antiquities the word Donarium was there misprinted for the word Dotarium whereas the word Dotarium is not in the said Copy which he Cites as a knowing Friend of mine doth inform me who at my request did very lately and carefully examine the same in one of the Couchir Books in the Dutchy Office in Grayes-Inn but the word is Donarium which probably the Transcriber did mistake for Douarium the u and n being anciently written alike and the v consonant not then used But if the word had been Dotarium it would not signifie Marriage as he doth fancy although Dos is Domesday Book be called Maritagium for Dos is twofold and that Dos which is Dotarium is the same with Douarium which we in English call Dower and is not that Dos which sometimes is called Maritagium For this see Glanvil lib. 6. cap. 1. whose words are these Dos duobus modis dicitur dos enim dicitur vulgaritèr id quod aliquis liber homo dat sponsae suae ad ostium Ecclesiae tempore desponsationis suae c. And lib. 7. cap. 1. In alia enim acceptione accipiter dos secundum leges Romanas which three last words with some others he leaves out in the eighth page of the first of his two last Books secundum quas proprie appellatur dos id quod cum muliere datur viro quod vulgariter dieitur Maritagium Now that Dotarium is that Dos which is Dower and not that Dos which is called Maritagium you may see in Sir Henry Spelman's Glossary Printed at London 1664. p. 174. whose words are these ¶ De eo Dotis genere quod uxoribus constituunt Angli ¶ Doarium Dodarium Dotarium Dinarium Dotalitium Omnia recte interpretatur vernaculum nostrum Douer non Latinum dos Est enim propriè dos illud quod maritus accipit cum uxore haec verò id quod in remunerationen dotis reportat uxor And Sir Peter very well knows that what is given in the aforesaid Deed was only given as a Dower or Joynture and not as a Gift in Free Marriage as you may see in the 132 page of his Historical Antiquities where he thus writes HAwise fourth Daughter of Earl Hugh by Bertred married Robert Quency Son and Heir of Saher de Quency Earl of Winchester She had the Earldom of Lincoln to wit the Castle and Honour of Bolingbroke and all the Lands of Earl Randle in Lindsey and Holland in Lincolnshire for which she gave 50 l. for relief On Hawise was estated for * Note Joynture Bukby Grantesset Bradeham and Herdwick as appears by this Deed in the Couchir Book of the Dutchy Office Tom. 2. Honor sive Soca de Bolingbroke num 26. pag. 508. After which he immediately doth verbatim recite the aforesaid Deed let the Reader therefore judge of the integrity of Sir Peter who in his new Books pretends that the aforesaid Lands were given in Free Marriage to the Lady Hawise and yet in his Historical Antiquities doth acknowledge that they were estated for Joynture only as by his words before mentioned doth clearly appear And whereas he says pag. 9. that it is not absolutely true which my Lord Coke doth say viz. That at this day the words in Liberum Maritagium have no other words equipollent for then a Deed in English granting Lands in Free Marriage or a Deed in French de terres en Frank Marriage would be void grants for neither of these have in strict terms the words in Liberum Maritagium c. wherefore certainly he understood it of a Grant in Latine His arguing therein is very weak for the English words in Free Marriage and the French words en Frank Marriage are the same words in Law with the Latin words in Liberum Maritagium though in different Languages but the words in Libero Conjugio though capable of the same construction in English with the words in Libero Maritagio are but equipollent to them and so the words in Wedlock free from all Services are but equipollent to the English words in Free Marriage and the French words en Nopsage acquite de Services are but equipollent to the French words En Frank Marriage Also by this Rule a gift of Lands by a Latin Deed in Libero Maritagio would be void because they are not in strict terms the words in Liberum Maritagium so that the Reader may see what strange kind of Arguments Sir Peter doth use In the 17 page he tells me that in the fourth and fifth pages of my Answer to his Addenda I further prove by comparing the age of Bertred that
AN ANSWER TO Two Books The first being stiled A REPLY TO Sir Thomas Mainwaring's Book ENTITULED AN ANSWER TO Sir Peter Leicester's Addenda The other stiled Sir Thomas Mainwaring's LAW-CASES MISTAKEN Written by the said Sir T. M. LONDON Printed for Sam Lowndes over against Exeter House in the Strand M. DC.I.XXV TO THE READER Courteous Reader VPon Saturday the 12th of December last I received from Sir Peter Leycester a Book or Books thus called viz. Two Books The first being stiled A Reply to Sir Thomas Mainwaring's Book Entituled An Answer to Sir Peter Leycester's Addenda The other stiled Sir Thomas Mainwaring's Law-cases Mistaken And although the one of these was dated the 14th day of April 1674. And the other the first day of May following yet they came not out in Print till Michaelmas Term in the same year When I had perused the said Books I found the latter to be the same in effect with the former and scarce met with any thing in either which he had not had in some of his Books before and had been formerly answered so that it was much more difficult to find out any new Matter than to give an Answer to the same I believe the Reader when he remembers how Sir Peter in his Answer to my Defence of Amicia did declare That he had taken leave for ever of this Trivial Controversie will very much wonder to find him in Print twice since then upon the same Subject But for that he supposeth he hath a good Excuse For he tells us in his Epistle to the Reader before the first of his two Books That although his resolution then was viz. when he writ his Answer to my Defence of Amicia 1673. to have writ no more about it especially if I had let him alone yet now contrary to his former intention he is necessitated thereunto in his own defence for the removal of those unjust obloquies which are since cast upon him Whereas his Servant Mr. Thomas Jackson in a Letter writen as he says by the Command of his Master did signifie to me that his Master would write again and this before I had printed one word of my Reply so that if we find him thus stumbling at the first it is well if we do not take him oft tripping before he comes to his journies end And for his writing again this second time he hath an excellent Reason For he says pag. 16. I have published another Book since and have therein taxed him already for not being just to his word so that he cannot now incur a greater Censure from me herein though he alter his former resolution and intention and write in his own defence so long as he shall henceforth judge it necessary so that he is resolved to give me just cause to censure him if he had not done so before He also endeavors to apply to me that saying of the angry Man in the Comedy which he mentions in his said Epistle but yet he is conscious I will say as much of him and his Reply and thereupon submits it to the Reader in which I shall willingly close with him and especially if it be a Reader who is well acquainted with his temper and mine But it is high time to leave the Epistle and to proceed to give an Answer to his said Books AN ANSWER TO Sir Peter Leycester's TWO BOOKS c. I Doubt not but the Judicious Reader hath long since observed what strange kind of Arguments Sir Peter Leycester doth insist upon both in these last and in all other his former Books For with all the confidence imaginable he several times affirms that Mr. Glanvil says That Lands might be given with any Woman in Liberum Maritagium whereas he only says That they may be given cum qualibet muliere in Maritagium as you may see in the 39 40 and 41 pages of my Reply where Mr. Glanvil's words are expresly set down He also says That he hath proved Geva to be a Bastard out of an Historian Contemporary by which Ordericus Vitalis is meant and yet the said Ordericus hath said no such thing He also affirms That the Common Law is now alter'd other ways than by Act of Parliament without quoting any Author for what he says although the Common Law hath always been the same and as my Lord Coke upon Littleton fol. 115. b. says Hath no Controuler in any part of it but the High Court of Parliament and if it be not abrogated or alter'd by Parliament it remains still And whereas my Lord Coke doth also in the same Book fol 21. b. tell us That these words in liberum maritagium are such words of Art and so necessarily required as they cannot be expressed by words equipollent or amounting to as much He for all this brags of several Precedents where Lands were given in free Marriage with Bastards and yet proves not that those necessary words in Liberum Maritagium were used in the granting of any of those Lands or that any of those persons with whom the said Lands were given were Bastards To conclude he tells you That Lhewellin Prince of North-Wales was divorced from his Wife Joane the Daughter of King John and for this he can neither shew any Author or Record but only doth dream of such a thing himself and yet you must believe him in all these particulars or else as you may see in the first page of his Reply to my Answer to his Addenda he will tell you you do withstand the plainest truth of History and Reason produced He also hath a fine way of answering For if he be pressed overmuch with any point of Law he will tell you of his own authority that the Law in such particulars hath been clearly alter'd though he cannot tell how or at what time it was so changed If it be a Record that puts him too hard to it then he conceives the Roll from whence the Deed is written is mistaken in such and such words and miswrit therein from the Original Chart it self And if out of any History you tell him of any thing which he cannot answer then he will not suffer the words to be read as they ought to be printed but he will fancy such expressions as will best suit with his turn and will also disparage the said History although in those matters he had formerly said he did chiefly follow the same He doth also to amuse those Readers that are of weak understanding tell them of Circumquaques of bits of Law pieces of Law brought in by the head and shoulders fragments of Law parcels of Law and in his two last Books tells me of my impertinencies of my being impertinent and of my speaking impertinently if one who sayes he hath counted do not mistake himself no less than Thirty times with several other expressions too ridiculous to repeat here He also to keep up his credit with the more simple sort of People doth offer to join issue with me upon
very many Points and gives me some strange directions to follow which done he will then leave it to the World to judge otherwise there will never be an end Whereas I will refer it to all judicious persons whether his Arguments in these two Books be not the same which he used formerly and whether they be not sufficiently answered by me in my other Books which if so the Controversie is already at an end Now for the manifestation of what I have here alledged I shall desire the judicious Reader when Sir Peter Leycester speaks of what Mr. Glanvil hath said to take notice what is written in the 32 page of my Defence of Amicia and so on to the 43 page as also what is written in the 39 40 and 41 pages of my Reply When he says Geva is a Bastard then I desire the Reader to peruse the 43 44 and 45 pages of my said Defence of Amicia and the 45 46 47 and 48 pages of my Reply When he says that the Gift to Geva was a Gift in frank marriage or that the Town of Drayton Basset did pass to the Heirs of Geva by vertue of that Deed which Randle Earl of Chester made to her see my Defence of Amicia pag. 48 49 and 50 and the 55 56 57 58 and 59 pages of my Reply When he says that Joane the Wife of Lhewellin was the same Joane which King John had by Agatha then read the 3 4 and 5 pages of my Answer to his Addenda When he says that Ellesmere was given with the said Joane in Libero Maritagio see the 6 and 7 pages of my said Book When he says King John had not three Daughters called Joane or that Joane the Wife of Lhewellin was the same Joane who was Wife to Robert de Audeley Read the 16 17 18 19 20 22 23 and 24 pages of the said Answer to his Addenda When he says the said Joane was divorced from her Husband Lhewellin which no man ever said but he himself then read the 17 18 19 and 20 pages of the Answer to his Addenda where besides other proofs against what he says you will find that the Adustery of Joane whil'st she was Wife of Lhewellin was committed Anno Domini sequenti to that Marriage which he fancies to be the Marriage of the said Joane Wife of Lhewellin to the said Robert de Audeley When he says Joane the Wife of Lhewellin was a Bastard then see the 21 and so on to the end of the 30 page of the said Book And although he says page 50. that what I say concerning Joane the Wife of Lhewellin being King John's legitimate Daughter by his Wife Hawise is so ridiculous that another would be asham'd to own it Yet I can shew under the hands of persons eminently knowing in these matters what great satisfaction they have received in this particular by what I have written concerning the same also besides those proofs which I have formerly brought he doth acknowledge that Vaughan in his British Antiquities pag. 29. doth call her the Daughter of King John and in a Record concerning Budiford mention'd by me hereafter in this Book she is also called the Sister of King Henry III without the least blemish of Bastardy at all I might here very well make an end but because some persons may be deceived with some of Sir Peter's Flourishes I shall passing by his angry and uncivil Language with which he doth ever abound endeavor to clear some things by which he might otherways impose upon some silly men In the first of his two Books in his second page he says I had in the 55 pag. of my Reply to his Answer said those Reasons of mine there mentioned were unanswerable whereas I said they were not at all answered by him and that the one of them was so far from being answered that it was not understood by him unless he only pretended not to understand it because he perceived he could not give an answer to it so that it seems in his opinion to doubt whether he can answer an Argument is the same thing as to say it is unanswerable In his fourth and fifth pages he wonders if I can english the words in Libero Conjugio that I will not allow such a Gift to be a Gift in Frank Marriage and yet he doth acknowledge that a Gift in Connubio soluto ab omni servitio is not a Gift in Free Marriage whereas if construing might be the Rule in this Case that might be made a Gift in Free Marriage as well as the other for the word Connubium as you may see in Gouldman's Dictionary doth only signifie Lawful Wedlock or Marriage and therefore is a better word than his word Conjugium which signifies Vnlawful as well as Lawful Conjunction If construing might also take place in this Case a Gift in Libero Conjugio or a Gift in Libero Connubio would be a Gift in Frank Marriage at this day as well as formerly and all other equipollent words would also amount unto such Gifts whereas the Law for the reason given by my Lord Coke will in this Case allow of no such Gift unless there be used both the word Liberum and the word Maritagium He also in the said fourth page doth again misrecite that Argument of mine which he doth there mention for he says that my Lord Coke saith that these words in Liberum Maritagium are such words of Art and so necessarily required as they cannot be understood by words equipollent whereas my Lord Coke says they cannot be expressed by words equipollent or amounting to as much so hard it is to get Sir Peter either to repeat or understand aright In the seventh page he also mistakes himself very much when he tells you that Lands given in Maritagium Habendum sibi Haeredibus suis libere quiete ab omni servitio versus Capitalem Dominum de me Haeredibus meis was a good Grant in Free Marriage by the very words of Glanvil in those ancient Ages and was as good as in Liberum Maritagium if he means thereby that Lands might be given in Free Marriage by those words of Glanvil in a Deed without using the words in Liberum Maritagium for Mr. Glanvil doth there only tell us what Free Marriage is and it is the same now that it was then but Mr. 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 says this he says nothing for Sit Peter's purpose And this may give an Answer to what he hath also said in his 14 and 54 pages of his first Book and in the 26 and 27 pages of the latter of his two Books And whereas he doth often tell you in all his Books that Mr. Glanvil says that Lands may be given with any Woman in Liberum Maritagium he as often tells you
by these following Records Claus 2. H. 3. M. 1. MAndatum est Vic Warr quod plenam seisinam habere faciat Leolino Principi Norwall de Villa de Budiford cum pertinentiis suis quam Dominus Johannes Rex Pater Domini Henrici Regis dedit ei in Maritagium cum Johanna Sorore Henrici Regis uxore ipsius Leulini Test * Scilicet Williesmo Marescallo Comite Pembrochis tune Rectore Regis Regni Comite apud Westm 10. Oct. Rot. Pip. de ann 2 H. 3. Warr. Leic. WIllielmus de Cantilupo Philippus de Kinton pro eo reddit comp de cxxviii li. ii s. bl de firma de Warewick de quater viginti quinque libris xvi s. iiii d. bl de firma de Leicestreshire Et Leuelino Principi Norwall lxxvi s. in Budiford in maritagio cum Johanna uxore sua de dimidio anno per Breve Regis But the Deed to John Scot Earl of Chester might be either in libero maritagio according to the agreement of Lhewellin with Randle Earl of Chester or else it might be in maritagio only as it was given to the said Lhewellin so that be that Deed how it will it will work nothing in the Case In his 57 58 and 59 pages he seems much displeased with what I tell him in the 33 page of my Answer to his Addenda concerning his partiality and doth in some respects strain my words further then he should But though I will not say any thing at this time concerning this particular for some reasons I have formerly told him of yet if he doth please to speak of it to me at any time when any judicious person is present I think I can make good what I said and that he will not be excused by that contradiction of his when he says page 58 and 59 that Admit he were partial never so much in what I charge him with yet he hopes what he hath written I find it impartial to all so far as he goes or doth know In his 60 and 61 pages he tells me that I go to excuse an Error of mine in calling Ralph Maniwaring Chief Justice of Chester because I found in his Historical Antiquities page 160 and also in other places there were in the time of Hugh Cyveliok sometimes two Justices of Chester and sometimes but one But I did not absolutly say there were two Justices living both together in the time of the said Ralph I only did insinuate as you may see in the 5 page of my Reply and the 34 page of my Answer to his Addenda that it was possible there might be more than one at a time because when Earl Hugh was living I found some Deeds directed Justiciariis and I am sure the reasons which he gives to the contrary in the 61 page of the first of his last two Books are very strange ones for he says that it is there to be understood of the Judges c. successively or with their Deputies under them Now how can any Deed be directed to any Justice and his Successor before he hath a successor or to their Deputies under them if what he says in the same page be true that then they executed their places themselves no power being given to them in those ages to make or constitute a Deputy by Commission at pleasure as we have now and in these latter ages hath been usually done Neither doth he mend it afterwards for he says possibly upon an emergent occasion the Antient Earls might constitute another Judge for the present in the absence of the other to execute the place for a time and so change them as oft as was thought good Now if this conceit of his be true that another Judge was constituted for a time only in the absence of the former were there not then two Justices at one time so that here are three very weak Answers given thereto But I shall now make it further appear that there was sometimes a Chief Justice of Chester in those elder Ages which I will thus prove That the word Justitia which then is of the Masculine Gender according to that Rule Mascula nomina in a dicuntur multa virorum was sometimes in those elder Ages used for the Judge or Justice of Chester I believe he cannot deny because in his Historical Antiquities page 144 I find a Deed thus directed Ranulphus Comes Cestriae Constabulario suo Dapifero Justitice Vicecomiti Baronibus Ballivis suis salutem I also in the 143 page of the said Book find this Deed following RAnulphus Dux Britanniae Comes Cestriae Richmondiae Omnibus tam praesentibus quam futuris qui Chartam istam viderint audierint Salutem Sciatis quod ego dedi concessi Andreae Filio Mabiliae Haeredibus suis ut sint liberi quieti de me meis Haeredibus de Teloneo per totam terram meam in aqua in terra in Civitate Cestriae extra a Brevibus portandis a Prisonibus capiendis custodienis a Namis capiendis a Vigiliis faciendis nocte vel die a caeteris hujusmodi consuetudinibus exactionibus nec de querelâ aliquâ in Civitate Cestriae vel extra respondeant in praesentiâ meâ * Note vel summi Justitiae mei Et super forisfacturam meam x Librarum prohibeo ne aliquis eos de supradictis libertatibus impediat vel inquietet sed eas libere quiete teneant Reddendo mihi Haeredibus meis annuatim vi Denarios ad Festum Sancti Michaelis Hiis Testibus Bertre Comitissa Cestriae Radulfo de Meinewarin Radulfo Seneschallo Hugone de Boidele Alano fratre ejus Roaldo Roberto Cam. Roberto Saraceno Ranulfo Dubeldai Nicolao filio Roberti Thoma fratre suo Willielmo Marmiun Ricardo Poibel Rogero Clerico multis aliis Apud Cestriam And now let any person judge whether those words in praesentia mea vel Summi Justitiae mei do not clearly prove that there was a Chief Justice of Chester in those elder Ages for that Deed was made in the time of the said Ralph Mainwaring he being a witness to the same And as I have proved in the fifth page of my Reply that if there were then two Justices the said Ralph was the Chief so it will also easily appear that the said Deed was made when the said Ralph was Judge for you may find in Sir Peter's Historical Antiquities pag. 143 144. that Randle Earl of Chester did first write himself Duke of Britain in the year 1187 and did relinquish that Title in the year 1200. And you may see in the 172 page of the said Book that Philip de Orreby who immediately succeeded the said Ralph was not made Judge till about the year 1209. In the 62 and 63 pages he thinks that he hath at last found out a fine device to cure what he formerly said for whereas I told him page 9. of my