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-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
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.
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