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
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
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