libertatibus Testibus Gilberto Filio Ricardi Adelizâ forore meâ Willielmo Blundo Alexandro de Tresgor Rogero de Bellocampo Willielmo de Sais Roberto de Sais Ricardo Filio Aluredi Hugone Filio Osberti Henrico de Chalder Apud Saintonam Wherein Geva is called Daughter of Earl Hugh Lupus as Amice in that other Deed is termed Daughter of Earl Hugh Cyveliok Now that Geva was a Bastard is very plain out of Ordericus a Man that lived in that very age he tells us Lib. 10. pag. 787. speaking of Hugh Lupus his death Richardus pulcherrimus puer quem solum ex Ermentrude Filia Hugonis de Claromonte genuit c. Richard a brave youth whom onely Hugh Lupus begot on Ermentrude Daughter of Hugh de Claremonte c. Nor can this be restrained to the onely Son for then it must have been otherways expressed and if Hugh Lupus had any other Son or Daughter by Ermentrude then cannot Richard be said onely to be begotten on her by Earl Hugh and so Geva was a Bastard or else Ordericus lies Also the same Author tells us Lib. 4. p. 522. that Hugh Lupus had also many Base Sons and Daughters by several Strumpets who were almost all swept away by sundry misfortunes and very probably if Hugh Lupus had any more Legitimate Children by his Wife besides Earl Richard either Son or Daughter Ordericus would have Recorded them as well as he hath put down others in like Nature being indeed his usual method through the whole course of his History And had Geva been Legitimate then her Issue ought rather to have succeeded into the Earldom of Chester then Randle de Meschines after the Death of Richard Earl of Chester for as much as the Sister and her Heirs ought to inherit before the Aunt and her Heirs and howbeit many Earldoms have descended to the Heirs-males and not to the Heirs General yet in this case were no Heirs-male but two Females an Aunt Legitimate who had it and a Sister not Legitimate And show me a Precedent where ever the Heirs of an Aunt inherited before the Heirs of a Sister both legally born and no Heirs-male left unless in case of Forfeiture by Treason or some other great cause to hinder the same Secondly Add to these the words of Glanvile Cheif Justice of England who lived under Henry the Second in that very age with Amice Lib. 7. cap. 1. Quilibet liber homo quandam partem terrae suae cum Filia sua vel cum aliqua alia qualibet muliere dare potest in Maritagium sive habuerit haeredem sive non velit haeres vel non imò eo contradicente And if a Man might give Land then in Free-marriage with any Woman whatsoever then he might give it to his Bastard and then the Law is now changed for now it must be of the Donors Blood and a Bastard is now said not to be of the Donors Blood Quasi nullius Filius and it seems to me that in those elder ages Bastards were reputed of the Blood by the frequent appellation of them by the names of Vncle Brother Daughter Son and Cosin Besides our Laws were then imperfect dark and obscure in most things till Bracton under King Henry the Third compiled the Body of our Laws and brought them into a method And now I have done concerning this cheif Reason whereupon those worthy Judges grounded their Opinions and we daily see Opinions of Lawyers follow the putting of the Case which many times upon mature deliberation and hearing of the Case well argued may then be of another Opinion Now follow the Arguments of lesser moment which I perswade my self were no Grounds for the Judges aforesaid II. THe disparity of the years between Hugh Cyveliok and Bertred his Wife 〈◊〉 may suppose he had a former Wife for Bertred was but Twenty six years old at the Death of Earl Hugh 1181. as appears by the Inquisition taken 30 H. 2. 1183. after the death of Hugh Cyveliok and Hugh was Earl of Chester Twenty eight years which was one or two years before Bertred was born besides what years were run up of his age before his Father Randle died which may be supposed to be a competent term of years and then it is probably he had a former Wife and that he staid not unmarried so long as till Bertred was fit for marriage Answ Now let us examine the Matter a little it will give us some light Robert Earl of Glocester married Mabill Daughter and Heir of Robert Fitz-Haimon Anno Dom. 1110. So Stow in his Chronicle See also Seldon 's Tit. Hon. pag. 647. By her he had Issue four Sons and two Daughters Maud the younger Daughter married Randle de Gernoniis Earl of Chester Father to Hugh Cyveliok Vincent upon Brook p. 216. Now suppose we Maud to be the fourth Child probably she was not born till about the year 1117. or thereabout and that about the year 1139. she was married to Earl Randle whereby Robert Earl of Glocester strengthned his party for Maud the Empress at that time she cannot well be supposed to be above Twenty two years old if she were so much Now Earl Randle died 1153. So that Hugh Cyveliok could not possibly be above Twelve years old at his Fathers death he might be much less But suppose we in a middle way that he was six years old at his Fathers death which is more then can be well affirmed then could not Earl Hugh be above Seven or eight years elder then Bertred his Wife And what great matter is this I my self was eight years older then my Wife when I was married but it is much more probable that he never had any other Wife because he had many Bastard Sons and Daughters whose heat of youth might by a very timely marriage have been possibly prevented or at least asswaged in some measure III. Bertred the Wife of Hugh Cyveliok was a witness to the Deed in Frank-marriage with Amice and Amice had a Daughter called Bertred after the name of the Countess Ergo Probably Amice was no Bastard Answ Truly this is of so little weight that it will need no answer for I yet apprehend no reason in it IV. Roger Mainwaring Son of Ralph Mainwaring calls Randle Blundevil Earl of Chester and Lincoln his Vncle in another Deed wherefore it is to be supposed that Amice was no Bastard otherwise Roger durst not have presumed to have called the Earl Vncle Answ Histories Deeds and Records are full of Examples in this nature where we find Bastards frequently called Cosin Brother Vncle Son and Danghter For example Robert Earl of Glocester Base Son of King Henry the First is frequently called in Histories Brother to Maud the Empress Hoveden p. 553. He is also so stiled in a Deed made by Maud the Empress her self Seldon 's Tit. Hon. p. 649. Called also Cosin to King Stephen Ordericus pag. 922. Reginald Earl of
as also other Lands in Cheshire the most of which came to Sir William Trussel who about Edward the First 's time married Matilda the sole Daughter and Heir of Sir Warine Mainwaring Son of Sir Thomas Mainwaring Son of Sir Roger Son of the said Sir Ralph and Amicia And the said Sir Ralph was Cheif Justice of Chester which antiently hath been a place of that great repute that Dukes of York Glocester Exeter and Ireland and Earls of Nottingham Wiltshire Suffolk Shrewsbury and Derby besides other great Persons have heretofore enjoyed the same 3. Neither was the Case the same with the other Daughters of the Earl of Chester when Ralph Mainwaring married with Amicia as it was afterward for Amicia was married in the life time of her Father Earl Hugh whereas those Four came to be such great Fortunes upon the death of their Brother Randle Earl of Chester and Lincoln without Issue to whom they then became Heirs they being his Sisters of the whole Blood and though all or most of them were married before they came to be his Heirs yet the said Earl Randle having never had Issue the expectation of that Estate added to their other Portions must needs make them very considerable Fortunes whereas Amicia was but of the half Blood being a Daughter of Earl Hugh by a former Wife And whereas you do acknowledge that you have been informed That Three eminent Judges and Four Heralds are of opinion that Amicia was Legitimate and not a Base Daughter you received that information several years ago but you were also lately told by one whom I hope you have no reason to discredit that since then several other Learned Judges and Heralds had been consulted All which did concur in the same opinion that Amicia was Legitimate But before I come to the Reasons that are by you alleaged either for or against Amicia give me leave to recite these Three Deeds following that those who read them and the Reasons on both sides may clearly understand the full State of the Case HVgo Comes Cestr ' Constabular ' Dapifer ' omnibus Baronibus suis Vniversis Ballivis hominibus suis Francis Anglicis tam praesentibus quam futuris salutem Sciatis me dedisse concessisse hac praesenti Karta mea confirmasse Radulpho de Menilwarin cum Amicia Filia mea in libero maritagio servitium Gilib filii Rogeri scilicet servitium trium Militum faciendo michi servitium duorum Militum ille haeredes sui michi haeredibus meis quare volo firmiter praecipio ut nullus super hoc eum vel haeredes suos vexet vel amplius quam servitium duorum Militum de hoc praedicto tenemento requirat Teste R. Abbate Cestr Bertreia Comitissa Cestr Sim. Thuschet Rogero de Livet Gilib filio Pigot Rob. fratre suo Frumb de Ridford Willielmo de Meinilwarin Rob. filio Ham. Bettr Cam. Rob. de Meinilwarin Ran. de Lee Rad. Clerico Petro Clerico qui hanc Kartam fecit multis aliis apud Lee. RAdulfus de Meidnilwar ' omnibus praesentibus futuris ad quos praesens scriptum pervenerit salutem Saiatis me dedisse concessisse praesenti carta mea confirmasse Henrico de Alditelegh in liberum maritagium cum Bertrea filia mea Smelewde cum pertinentiis Senellest ' Cum pertinent dimid ' Pichemere cum pertinentiis suis i. Marc. de redditu annuo in Civitate Cestr ' de terra quae fuit Fagun quam Robert ' filius Ermwi de me tenuit illi haeredibus suis qui de dicta Bertrea filia mea pervenient habend ' tenend ' de me haeredibus meis in feodo haereditate libere quiete plene pacifice in bosco plano in pratis pascuis in aquis viis in semitis in vivariis in molendinis in omnibus locis libertatibus praedictis terris pertinentibus sicut liberum maritagium melius liberius teneri pot ' Et ego haeredes mei illi dictis haeredibus suis contra omnes homines dictas terras Warrantizabimus Test ' Ran ' Com' Cestr Hug ' Com' Vltoniae Phil ' de Orreby tunc Justic Cestr. Joh. de Ptell ' Hug. Malebiss Ric. de Vern Ran. de Meidnilwar Clerico Lidulf de Tuaml ' Rob. de Periis Ric. de Kingest Norm Pant. Tho. de Orreby Alured de Sulinni Pet. Chan. Gg. de Aldith Ric. de Rodest Clerico multis aliis OMnibus hanc Cartam visuris vel audituris Rogerus de Menilwarin aeternam in Domino salutem Noverit Vniversitas vestra me pro salute animae Domini Ranulphi quondam Comitis Cestriae Lincolniae Avunculi mei prosalute animae meae animarum antecessorum successorum meorum dedisse concessisse hac praesenti Carta mea confirmasse Deo Beatae Mariae Abbati Monachis de Deulacresse eorum Grangie de Biveleg in liberam puram perpetuam Elemosynam liberam communam in bosco meo de Pevere scilicet Vt accipiant de eodem bosco husbot haybot rationabiliter per visum alicujus forestariorum meorum quantum necesse habuerint sine impedimento aeriarum nisorum meorum ubicunque nidificaverint Praeterea dedi eis liberam pessionem quietam de pannagio quinquaginta porcis quandocunque voluerint in praedicto nemore meo de Pevere pro hac autem donatione concessione mea Ego Rogerus praedictus haeredes mei de praedictis Abbate Monachis de Deulacresse nichil exigere poterimus nisi orationes suffragia ordinis Cisterciensis Ego vero haeredes mei sepedictam donationem concessionem meam sepedictis Abbati Monachis Grangie de Biveleg contra omnes gentes Warrantizabimus imperpetuum Et ut haec donatio mea rata inconcussa in sempiternum perseveret eam praesentis Cartae testimonio Sigilli mei impressione roboravi Hiis testibus Willielmo de Menilwarin Willielmo Capellano de Lauton Ricardo de Moston Bened. de Cawdray Johanne de Motlawe Willielmo de Pevere Hugone de Weloc Nicolao de Wereford Gilberto Gekell aliis And now I shall consider of your Answer to the first Reason on the behalf of Amicia which Reason I think should have been expressed to this or the like effect viz. Our Common Law neither now doth nor heretofore ever did allow that Lands or Services could be passed In libero Maritagio with a Bastard Danghter by the Reputed Father because a Bastard is not De sanguine Patris And therefore Amicia having Services given with her In libero Maritagio by her Father it necessarily follows that Amicia was no Bastard To which your Answer is that it is true the Law is so taken at this day but you much doubt whether it was so taken in the elder Ages of Henry the Second and upwards and to make good what you say you cite my Lord Coke upon Littleton in
before Ralph the Steward of Cheshire But if Amicia was a Legitimate Daughter the reason thereof will be apparent For though it be true that the Husband cannot be Ennobled by the Marriage of his Wife yet the Earl of Chester being a Count Palatine and one that is confessed by you Page 152 159. to have Royal Authority within himself and not unfitly to bestiled a Petty King having under him his Constable of Cheshire in Fee in imitation of the Lord High Constable of England and his Steward of Cheshire in Fee after the example of the Lord High Steward of England and his Noblemen about him in imitation of the Barons of the Kingdom as also his Chamberlaine who supplieth the place of Chancellor and his Justices of Chester who have like power to the Judges of the Courts of Kings Bench and Common Pleas as also a Baron of the Exchequer a Sheriff and other Officers proportionable to those of the Crown It is no wonder at all if these great persons did voluntarily give Precedence to Sir Ralph Mainwaring during his life in regard he had married a lawful Daughter to one of their said Earls Add hereunto that when Earl Hugh Cyvelioke did by his Charter mentioned by you Page 131. acquit the Abbot and Monks of Stanlaw of some Toll in Chester which could be but a little before the said Earl's death because the said Earl died in the year 1181. And the Abbey of Stanlaw as is confessed by you Page 267. was Founded but in the year 1178. The said Earl in his said Charter contrary to all former Precedents which I have seen doth name the Justice of Chester before both the Constable of Cheshire and Steward of Cheshire and the Reason thereof I suppose to be because the said Ralph Mainwaring who was Son in Law to the said Earl was then Justice of Chester as he also was some years in the life time of Randle Blundevill though the said Ralph as appears by his aforesaid Deed made to Henry de Alditelegh did afterwards part with the said Office Philip de Orreby being Justice of Chester when the said Philip was a Witness to the said Deed. Now this preeminence could not be given to the said Ralph because he was Justice of Chester that being below the Offices of Constable and Steward as appears before but because of the Relation of the said Ralph to the said Earl But as this respect was too great to have been shewed him if he had onely married one that was a Bastard so it doth not consist with your conceits that the said Amice was Illegitimate and that the said Ralph had nothing else with her but the aforesaid Services For indeed they were not of sufficient value to be a Portion suitable to the Estate of a very mean Gentleman I Have at present done with this Discourse concerning the aforesaid Amicia but being desirous to rectifie all Mistakes which do concern my Family in all the Particulars that I can I think it not inconvenient to inform the Reader of one of yours in the 334 Page of your Book wherein speaking of Margery the Wife of Randle Mainwaring you say This Randle Manwaring of Over Peover stiled commonly Honkyn Manwaring in the Language of those times died 35 H. 6. 1456. Lib. B. page 21. E. Buried at Over Peover in the Stone Chappel on the South-side of the Church Which Chappel Margery his Wife surviveing erected with the two Monuments therein for her self and husband Anno Dom. 1456. For albeit it be very true that the said Randle Mainwaring did marry Margery the Daughter of Hugh Venables Baron of Kinderton and Widow of Richard Bulkeley of Chedle in Cheshire yet the said Margery did not survive the said Randle and after his death Erect the said Chappel and Monuments therein For although on the Eighth day of August in the Year of our Lord God One thousand six hundred and forty the Pictures of the said Randle Mainwaring and Margery were tricked out by a very good hand as they were then remaining in a Glass Window of the said Chappel Kneeling with this Inscription viz. Orate pro animabus Ranulphi Maynwaryng Margeriae Vxoris ejus qui istam Capellam Anno Dom. Mcccclvj ............ And although the Year when the said Chappel was built is still to be seen in the said Window yet that doth not prove that the said Margery survived her Husband Randle and erected the said Chappel and Monuments For the word qui cannot possibly relate to Margery alone but doth as I conceive in the true meaning thereof relate onely to the said Randle For it appears by an Inquisition taken after the Death of the said Margery that the said Margery held in Dower at the time of her Death Ex dotatione Richardi Bulkeley quondam viri sui the third part of the Moity of the Mannor of Chedle as also Five Messuages in Middlewich One Messuage and Sixty Acres of Land and Wood in Newton near Middlewich Ten Acres of Land in Ashley and Hale Eight Acres of Land in Occleston Six Messuages and Two hundred Acres of Land Meadow and Wood in Whatcroft Six Messuages and One hundred and twenty Acres of Land Meadow and Wood in Holme juxta Davenport the Moity of the Scite of one Water-Mill and Four Acres of Wood in Little Stanthorne and the Moity of the Mannor of Timperley And it is also found by the said Inquisition that William de Bulkeley was the next Heir of the said Margery Now this Inquisition being taken in the Twenty seventh year of King Henry the Sixth and the said Randle Mainwaring together with his Three Sons Sir John William and Randle for the said John was Knighted in the life time of his Father being all Three mentioned as then living in a Deed of mine dated the Saturday next after the Feast of Saint Hillary in the Thirtieth year of King Henry the Sixth and I having also in my custody another Deed dated the Sunday next before the Feast of Corpus Christi in the said Thirtieth year of the said King made betwixt the said Randle Mainwaring the Elder and Sir John Mainwaring Knight his Son on the one party and John of Ashley of the other party concerning a Marriage to be had betwixt Hamnet Son and Heir Apparent of the said John Ashley and Margaret Daughter of the said Sir John Mainwaring which Deed is also mentioned by you Page 334. It is from hence very clear that the said Margery did not survive her said Husband Randle Mainwaring and erect the said Chappel and Monuments therein after the said Randles death There is also omitted by you in your Historical Antiquities Agnes the Daughter of John Mainwaring of Over Peover Esquire who was Sister to Sir John Mainwaring and Wife of Sir Robert Nedham Knight And of this Match there is very good Proof which you have been informed of I having by me the Pictures of the said Sir Robert and Dame Agnes as they were
the Elder my Grandfather by the Mother for if he ought of right to Quarter that Coat then must he be descended from a Coheir to the Earl of Chester but that he was not for the Coheirs of Earl Hugh as you see before were married to Four of the greatest Peers of the Kingdom the Earl of Huntington the Earl of Arundel the Earl of Derby and the Earl of Winchester 's Son and Heir who lived not to be Earl Neither was Mainwaring then an equal Competitor to have Married a Coheir to the Earl of Chester and it is plain Ex Placitis 18 Hen. 3. Rot. 14. in the Tower of London where the Coheirs implead John the Scot Earl of Chester for their part there is no mention of Amice claiming any part or any from or under her in the Record Besides all Antient Authors of those times as Polychronicon Matthew Paris Knighton Stow and others would not have omitted her amongst the rest which they have set down had she been a Coheir which also she must needs have been had she been Legitimate for Hugh Cyveliok never had any other Wife but Bertred and she survived him And though Amice in the Deed before mentioned is stiled Filia Hugonis Comitis without the Addition or Note of Bastard it was very usual in those elder ages so to do The like we find of Geva Base Daughter of Hugh Lupus and several others V. Concerning this Bertred the Wife of Hugh Cyveliok I cannot omit the Falsities and Absurdities of some Authors as Powel on the Welsh History p. 295. and Ferne in his Lacy's Nobility p. 53. Both of them calling this Bertred by the name of Beatrix and saying she was the Daughter of Richard Lucy Cheif Justice of England a most gross falsity I am very certain that Hugh Cyvelioks Wife was not Daughter of Lucy nor ever called Beatrix in any old Deed or Record though I find by good authority that there was a Woman called Beatrix Lucy but never Wife of Earl Hugh The Death of Hugh Cyveliok Obiit 1181. THis Hugh Earl of Chester died at Leek in Staffordshire and was buried at Chester Anno Dom. 1181. 27 Hen. 2. Hoveden Pag. 615. With whom Westminster Polychronicon and Cambden inter Comites Cestriae do all agree He was Earl of Chester Twenty eight years and gave the Church of Bettesford to the Prior and Canons of Trentham after the death of William Barba who at the time of this Grant possessed the same a Copy of which Deed I received from Sir Simon Dews Baronet Now because I find that some are displeased at my placing of Amice sometime the Wife of Ralph Mainwaring Judge of Chester among the Base Issue of Hugh Cyveliok Earl of Chester and also that I am informed that three eminent Judges and four Heralds are of opinion That she was Legitimate and not a Base Daughter of Earl Hugh It is very necessary that I put down here my Reasons why I have so placed her protesting withal that I have not done it out of any prejudicate opinion or calumny intended in the least but onely for the truths sake according to the best of my judgment and that after a long and diligent scrutiny made herein for I must ever acknowledge my self to be extracted out of the Loyns of this Amice by my own Mother but you know the old saying of Aristotle Amicus Plato Amicus Socrates Sed magis amica veritas Neither were Bastards in those elder Ages of such disrepute as now in our days Memini me alicubi legisse saith Spelman in his Glossary on the word Bastardus Priscos septentrionales Populos etiam spurios admisisse in successionem and where he farther tells us that King William the Conqueror began his Letter to Alan Earl of Little Britain as he did many other more in these words Ego Willielmus cognomento Bastardus Of which Title it seems he was not ashamed otherwise he would never have used it himself And therefore the Question being no more then this Whether Amice was a Base Daughter or no I will first answer those Reasons which seem to be the chief ground of those worthy Persons abovesaid who think Amice was no Bastard and then in order set down my own Reasons why I conceive her to be a Bastard submitting my self wholly to the judgment of all Learned Persons herein The Reasons that She was no Bastard FIrst Our Common Law alloweth not that any Lands can pass in libero Maritagio with a Bastard Daughter Coke upon Littl. fol. 21. b. And therefore Amice having Land given with her in libero Maritagio by the Deed it must be presumed that she was no Bastard Answ To which I answer That it is true the Law is so taken at this day with us but that the Law was so taken in the elder ages of Henry the Second when Hugh Cyveliok lived and upwards I very much doubt and if we mark well this Grant it is the Grant of Earl Hugh to Ralph Mainwaring with Amice his Daughter in Frank-marriage of the Service of Gilbert Son of Roger to wit the Service of three Knights Fees by doing the Service of two Knights Fees to the said Earl and his Heirs which is rather a Release of the Service of one Knights Fee then the Grant of any Land But to pass by this I say That the Common Law in sundry things is altered at this day from what it was in former Ages long after Henry the Second Coke upon Littl. fol. 34. Sect. 39. Coke ibid. fol. 3. a. fol. 8. a. At the bottome of the Page and on the other side b at the bottome Fol. 26. b. Sect. 29. and infinite other particulars may be cited And that in this particular also of passing Land in libero Maritagio with Bastards the Law seems clearly to be altered herein since the Reign of Henry the Second For the common practise I take to be the Common Law and I shall give you here one Precedent made about the Raign of King Stephen and doubtless many others might be mustered up from those elder ages if any curious person would take pains to search old Deeds and Records which Deed I received from Sir Simon Dewes transcribed out of a Manuscript in Arundel House in London belonging antiently to the Barons of Stafford wherein the old Charts belonging to the Bassets of Drayton-Bassets in Staffordshire where inrolled about Richards the Second's time Ibid. fol. 67. a. Ranulfus Comes Cestriae Willielmo Constabulario Roberto Dapifero omnibus Baronibus suis hominibus Francis Anglicis totius Angliae salutem Sciatis me dedisse concessisse Gevae Ridell Filiae Comitis Hughes Draytunam cum pertinentiis in libero conjugio sicuti Comes Hughes ei in libero conjugio dedit concessit Et teneat bene in pace honorifice libere ut melius liberiûs tenuit tempore Hugonis Comitis aliorum meorum antecessorum eisdem consuetudinibus
you peruse what my Lord Coke upon Littleton says pag. 21. b. he will there tell you 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 As if a Man give Lands to another with his Daughter In connubio soluto ab omni servitio c. yet there passeth in this Case but an Estate for Life for seeing that these words In liberum Maritagium create an Estate of Inheritance against the general Rule of Law the Law requireth that they should be legally pursued And in this Deed to Geva the words are not In liberum Maritagium but In libero Conjugio and so are but like the words In connubio soluto ab omni servitio which make but an Estate for Life and so might be passed either to a Bastard or any other person whatsoever And if you look well on the Deed to Geva it is worded as if it intended onely an Estate for Life there being no mention of her Heirs and running also in the singular number Et teneat bene in pace c. Vt melius liberius tenuit c. Also if you observe my Lord Coke upon Littleton a little before on the same Page he will tell you that Four things are incident to a Frank-marriage The first whereof is That it be given for consideration of Marriage either to a Man with a Woman or as some have held to a Woman with a Man and with this Bracton lib. 2. cap. 7. doth accord And the fourth thing is That the Donees shall hold freely of the Donor till the fourth degree be past with which the old Treatise called Fleta lib. 3. cap. 11. doth agree For both which Reasons this Gift cannot be a Gift in Frank-marriage because what is here given is given to Geva alone and not to an Husband with her as also there are here no Donees but one Donee onely and the Estate was not to continue until the fourth degree was past but was onely an Estate intended for the Life of Geva as appears before whereas what was given by Earl Hugh to Ralph Mainwaring with his Daughter Amicia and by Ralph Mainwaring to Henry de Alditelegh with his Daughter Bertred was given in Free-marriage and their Heirs are mentioned in both the Deeds It remains therefore clear That the Deed to Geva was not a Gift in Frank-marriage and is also very uncertain whether Geva was a Bastard as you suppose The second Reason alledged to prove That Amicia was Legitimate hath also yet its full strength and is not at all weakned by any thing that you have said For I think it will still appear that Earl Hugh was much Elder then his Wife Bertred and therefore probably had a former Wife who dying and leaving him no Issue-male it is no wonder at all if he that had so great an Estate did afterwards marry a Lady that was very much younger than himself And though you do affirm That Earl Hugh could not be above Seven or eight years older then Bertred his Wife I suppose I shall make it appear that there might be many more years betwixt them and that from the Argument upon which you your self do reckon viz. The Marriage of Robert Earl of Glocester with Mabill Daughter and Heir of Robert Fitz-Haimon For whether the said Robert Earl of Glocester according to Selden married the said Mabill in the year 1109. or according to Stow in the year 1110. The said Mabill might possibly have Maud her second Daughter in the year 1112. Which Maud if she was married in the year 1128. when she was Sixteen years of Age to Earl Randle de Gernoniis might have her Son Hugh Cyveliok in the year 1129. Which if true the said Earl Hugh was Fifty two years of age at his death for he died in the year 1181. And if so then he was four years above twice the age of Bertred for she was aged but Twenty four years when the said Earl Hugh died as appears Rot. de Dominabus pueris c. In Scacc. penes Remem R. sub Tit. Linc. Rot. 1. And it is certain That the said Earl Hugh was Earl of Chester about four years before his Wife Bertred was born besides what age he was of when his Father died But I may very well abate you several years of this accompt and yet Earl Hugh be a great deal older then his Wife Bertred And as to the Third and fourth Reasons they were onely urged as concurrent Proof with the Argument brought from the words In libero Maritagio yet I conceive there are many more circumstances than you take notice of And therefore when I have observed them all viz. That in the first Deed Hugh Cyveliok's Countess is a Witness by which the said Earl gives Services to the said Amicia in Free-marriage and calls her his Daughter And in the second That Ralph Mainwarings Daughter is also called Bertred after the Countess and Randle Earl of Chester a Witness to what was given with her in Free-marriage to Henry de Alditelegh who was Great Grand-father to the Famous James Audley that warred in France And in the third How Roger Mainwaring in his Gift to the Monks of Deulacress calls Randle Earl of Chester and Lincoln his Uncle and how as appears in Mr. Dugdale's Antiquities of Warwickshire pag. 88. Ralph Mainwaring was with the said Earl at Coventry and a Witness to his Charter to his Burgesses there as also how Roger de Meinwarin and Henry de Aldithele who married his Sister Monast Angl. Part 1. pag. 891. are Witnesses to the Deed of Randle Earl of Chester and Lincoln concerning his Abbey of Deulacress as also how the said Henry de Audley Monastic Angl. Part 2. pag. 509. was a Witness to the Deed of Robert de Ferraris whose Mother was one of the Sisters and Coheirs to the aforesaid Earl Randle as also how Raph Menilwaringe or Mainwaring as appears by your Book Part 2. pag. 130. 131. 139. 143. and 144. is a Witness to one Deed of Hugh Cyvelioks and to three other Deeds of the said Earl Randle who in some of them is also stiled Duke of Britain and Earl of Richmond I shall leave it without any more words to the Reader to judge whether these Circumstances be not such as do shew more great and constant intimacy betwixt the said Two Families then probably would have been if Amice had been a Bastard and if so they strongly concur to prove her Legitimate which is all the use that is made of those Arguments And although you Object That you frequently find in Histories and Records that Bastards are called Cosin Brother Uncle Son and Daughter I grant it to be true yet that is either done where the persons came to be very great as Robert Earl of Glocester did or else are called so by those that write the Histories of them or else are so termed
confident you cannot nor will not suppose I shall instance onely in one viz. Roger Melinguarin who in the Reign of King Henry the First as you may see in the First Part of Monasticon Anglicanum p. 985. gave Plumley a place in Cheshire near to Peover to the Abbey of S. Werburge at Chester and as it appears by the said Record the said Roger Mainwaring had Three Sons William Randle and Wido Now if you should affirm That the said William Randle and Wido were Legitimate which I verily believe you will not scruple to do I could thus frame your own Argument against you If Roger Melinguarin had no Wife then William Randle and Wido Sons of the said Roger were certainly Bastards But Roger Melinguarin aforesaid had no Wife Ergo c. Now if this Argument would hold against Amicia it would also hold against these three Children of Roger Mainwaring and indeed against all other persons whose Fathers we could not directly and interminis prove to have been married the Proof lying on the Affirmers side the Absurdity of which is so great that you your self cry God forbid all Children should be concluded Bastards whose Mothers cannot be proved But if it be possible for a Man to have one Wife and we not know who she was Why may not a Man have two Wives we be ignorant who the former Wife was Yea but say you in this Case we find a Wife certainly Recorded and a Son and Four Daughters who were afterwards Coheirs and carried away all Earl Hugh 's Lands clearly proved by Records and Ancient Historians and also Earl Hugh is certainly known to have many Bastards which gives occasion of strong suspition that Amice was a Bastard and therefore here is a necessity of proving a former Wife which you firmly believe Earl Hugh never had For answer hereunto I say that I do believe if Randle Blundevile had left any Issue Male you had not met with such Proof of the Four Sisters his Coheirs as you now do For the falling of that great Estate to them they being of the whole Blood to their Brother is the occasion of their being Recorded and so much taken notice of by Historians And though this Earl Hugh their Father had some Issue that was not lawful as many of the great persons of that age had yet that hinders not but he might have two Wives neither had he so many Bastards as you lay upon him for I have shewed before That Richard Bacun's Mother was not any Child of his And I do conceive I have by necessary consequence proved That the said Earl Hugh had a Wife who was Mother to Amicia though we cannot tell who she was And it is no great wonder if the old Historians do not mention who Hugh Cyveliok's first Wife was for there is not any of the Antient Writers that I know of who doth make it his business to tell what Wives and Children this Earl Hugh had nay I think there is no Antient Historian that doth mention his Wife Bertred And therefore we had never known who she had been but onely because she survived her Husband and was mentioned in the Inquisition taken after his death and because her Daughters after the death of their Brother came to be Heirs Also it is very hard to tell who were Wives to Walter Gifford the First Earl of Buckingham John of Henault Earl of Cambridge Baldwin de Ripariis Earl of Devonshire William Fitz-Piers Earl of Essex Robert de Ferrars the First Earl of Ferrars and as some say of Derby Robert de Ferrars Second Earl of Ferrars Ralph de Maunt Earl of Hereford William de Iper Earl of Kent William de Romara Earl of Lincoln Morchar Earl of Northumberland Gospatrick Earl of Northumberland Robert Mowbray Earl of Northumberland and several others and therefore what great wonder would it be for Hugh Cyveliok to have a former Wife and yet we to be ignorant who that former Wife was Your second Reason against Amicia will not hold For though what is given in Frank-marriage be given in consideration of Marriage yet it cannot properly be called a Portion For such Gifts may be made either before Marriage at Marriage or after Marriage as you may see Coke on Littl. 21. b. And besides what is given as a Portion remaineth to the Husband for ever and is wholly at his disposal but Lands given in Frank-marriage shall after the death of the Husband and Wife if they die without Issue revert to the Donor Also any person that pleaseth may give a Woman a Portion but none but one of the whole Blood can give Lands with a Woman in Frank-marriage as Mr. Hughes says in his Grand Abrigdment of the Law pag. 970. But the reason why you call it a Portion is Because you would have it thought that this was all her Portion and thence would infer that she was Illegitimate because so very little was given with her But I think any Man that will weigh things indifferently wil easily conclude That if she had been but a Bastard yet being a Bastard of so great a person she would have had a great deal more given her then these Services upon those terms that they were given and especially considering how you have observed out of Sir Henry Spelman that Bastards were not in such disrepute in those former ages as they are now and besides I have made it appear that Sir Ralph Mainwaring was no inconsiderable person and therefore would deserve a great deal more And you may also find in one of the Deeds before-mentioned that though the said Sir Ralph had Issue Male yet he gave that which was of far greater value in Free-marriage with a Daughter of his own But I perceive if this Deed of Earl Hughes had been lost you would not have believed that Sir Ralph Mainwaring had had any thing with Amicia because then it would not have appeared which is a strange way of arguing about things that were done so long since And if this be a good reason I wonder you do believe that Earl Hugh had any Portion with his Countess Bertred because for ought I yet know it doth not appear that he had As for your alleadging how the other Four Sisters were married I have answered that before and though you say That if Amice had been Legitimate she being of the first Venter would have been more worthy then those of the second though that be true when the Sisters Claim as Heirs to their Father yet when they come to Claim as Heirs to their Brother as in this Case if there be Sisters of two Venters and the Brother be of the second Venter then the Sisters that are of the second Venter shall be preferred before those of the first Venter because those of the second Venter are of the whole Blood I shall therefore here conclude what I have to say to your second Reason when I have told you that I do not understand