Cornwal another Base Son of Henry the First stiled Avunculus Regis Henrici Secundi by Hoveden pag. 536. Robert and Ottiwel two Bastard Sons of Hugh Lupus frequently called Filii Hugonis Comitis Cestriae and Ottiwel stiled Frater Ricardi Comitis Cestriae Ordericus p. 602. 783. 870. Geva a Base Daughter of Hugh Lupus stiled in old Deeds Filia Hugonis Comitis and there also she calls Earl Randle her Cosin Monasticon Part 1. pag. 439. Also Richard Bacon Son of another Base Daughter of Hugh Cyveliok calls Randle Blundevil Earl of Chester his Vncle in another Deed as Mainwaring in like manner here stiles him in this Deed Monasticon Part 2. p. 267. Every Man that is but the least versed in Antiquities knows these things to be very usual The Reasons that Amice was a Bastard 1. IF Hugh Cyveliok had no other Wife but Bertred then Amice must certainly be a Bastard for she was not a Daughter by Bertred as is granted on all sides But Hugh Cyveliok never had any other Wife but Bertred Ergo Amice was a Bastard Now the Minor is to be proved by the Affirmer Oportet Affirmantem probare For as yet I never saw the least proof thereof either by Deed Record or any Ancient Historian nor yet any inducement of good reason to incline my belief of it and till this be done it is unreasonable to impose it upon any Mans belief by supposing that he had another Wife for suppositions are no proof at all It is not enough to suppose Amice might be by a former Wife but it must be clearly proved or strongly inferred from solid Reason that it is so and that Hugh had a former Wife Neither is it a sufficient answer hereunto to say That it is unreasonable to conclude all Children Bastards whose Mothers cannot be proved God forbid But 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 Antient Historians and also Earl Hugh is certainly known to have had many Bastards both Sons and Daughters which gives occasion of strong suspition that Amice was a Bastard she being neither Recorded by any Historian nor ever had or claimed any Land as a Coheir and therefore here is a necessity of proving a former Wife which for my part I believe firmly Earl Hugh never had 2. Whatsoever is given in Frank-marriage is given as a Portion Now the Release of the Service of one Knights Fee in Frank-marriage seems not a competent Portion for a Legitimate Daughter of the Earl of Chester especially for the eldest Daughter for so she must be being of the first venter which always is more worthy then the second if she were at all Legitimate And we find the other Daughters married to four of the greatest Earls in England All which is a strong presumption that Amice was a Bastard and no Legitimate Daughter To this it may be answered That possibly Earl Hugh might give Amice a great Portion in Money though she had no Lands and I say possibly too he might give her no Money or at least nothing considerable Which great Portion in Money when it shall appear to be true may take off the strength of this Argument or Second Reason till then it must be very pressing 3. The Antient Historians of our Nation as Polychronicon writ by the Monk of Chester Henry Knighton the Monk of Leicester and others also Stow and Cambden have Recorded the lawful Daughters and Coheirs of Earl Hugh And so the Record of 18 Hen. 3. And had Amice been a Legitimate Daughter it is likely that these Historians would not all have omitted her but of her there is Altum silentium among all the Historians and Records which I have yet seen though indeed I look upon this onely as a probable not as a sure evincing Argument These were the Reasons which inclined my Opinion to place Amice in that order as I have done but since there are some Learned Men of another Opinion I must leave every Person to the dictate of his own Reason THE DEFENCE OF AMICIA Daughter of Hugh Cyveliok Earl of Chester I Do very much wonder that you should so peremptorily call Amicia a Base Daughter of Hugh Cyneliok unless you had more sure grounds to go upon And though it be onely my task to defend the said Amicia yet I do suppose I shall make it appear before I have done that you go upon no absolute certainty in calling her that was Mother to Richard Bacun Founder of the Priory of Roucester in Staffordshire another Base Daughter of the said Hugh Cyveliok or in calling Geva a Base Daughter of Hugh Lupus At present give me leave to remind you what you have been formerly told viz. That those Heralds that gave to Mainwaring of Peover the quartering of the Earl of Chester's Coat in Queen Elizabeth's time were Mr. William Cambden and Mr. Sampson Erdeswick Persons who very well understood themselves and I do not know why you should so much mislike their boldness and ignorance as you call it for their so doing For though we did not antiently quarter that Coat it not being usual in that age when that match was made for any so to do and that it may perhaps in strictness be true that it doth yet onely belong to those of the whole Blood to Quarter Coats and that to shew their Right yet it being now a common practise for those who are of the half Blood also to do it to manifest That they descend of the same Father that those of the whole Blood do I know not why it should be accounted a crime in us more then in others in the like Case As for your Objecting That Mainwaring was not then an equal Competitor to have married a Coheir of the Ear of Chester the Coheirs being married to Four of the greatest Peers of the Kingdom We do not say That he either was an equal Competitor or that she was a Coheir to Earl Randle she being the Daughter to Hugh Cyveliok by a former Wife and so but half Sister to the said Earl Randle however that could have been no substantial Argument to prove that Amicia was not Legitimate 1. Because sometimes some particular Persons have the fortune to marry Wives far beyond their Degrees or Estates 2. Neither was Sir Ralph Mainwaring so inconsiderable a Person as perhaps you may conceit him to be For besides that Sir Roger Mainwaring Son of the said Sir Ralph did after the death of the said Sir Ralph give to Sir William Mainwaring his younger Son Peover as also some other Lands the said Sir Ralph had also the Lordship of Waburne in Norfolk and the Lordships or great part of Rode Blakenhal Warmincham Northerden Ashton juxta Kelsall Henbury and Pexhull Willaston Great Warford Little Warford Whelock Winnington Cokishall Tatton Senellestune Smalwood and half of Pichmere
there be any occasion to alter the Common Law or to take it otherways in this particular then they did formerly because since there were Estates in Tail there could be no great occasion to make Gifts in Free-marriages and therefore my Lord Coke says in his First Part of Institutes fol. 178. b. That such Gifts are almost grown out of use and serve now principally for Moot Cases and Questions in the Law that thereupon were wont to arise Neither is there any weight in what you say That it seems to you that in those elder Ages Bastards were reputed of the Blood by the frequent appellation of them by the names of Uncle Brother Daughter Son and Cosin for by the same Reason you should repute them of the Blood now this Age being as civil to them in their expressions as any former Age could possibly be And for the Precedent you give me wherein you say Lands were given in libero maritagio with a Bastard I conceive it will not hold Because it doth not certainly appear that Geva was a Bastard for in all the Records that you cite she is called Earl Hugh's Daughter and in one of them she calls Randle Earl of Chester her Cosin which makes it probable that she was Legitimate especially since I do not find by any Deed Record or Author whatsoever that she is at any time called a Bastard As for your saying That it is plain out of Ordericus p. 787. that Geva was a Bastard because speaking of Hugh Lupus his death he adds these words Richardus autem pulcherrimus puer quem solum ex Ementrude Filia Hugonis de Claromonte genuit I am not satisfied but he might as well mean that he was the onely Son which Earl Hugh had by Ementrude as that he was the onely Child that he had by her For there is no necessity to take the word Solum adverbially neither is it marked as an Adverb in Ordericus his Book though it be so in yours and yet in his Book Adverbs are usually marked And though that Ordericus if his meaning were so might have worded it more clearly yet he many times expresseth himself worse then he doth here and particularly Pag. 871. And though he tells us Pag. 522. that E pellicibus plurimam sobolem utriusque sexus genuit yet he doth not say that Geva was one of them Neither is there any force in what you alledge that probably if Hugh Lupus had any more Legitimate Children by his Wife besides Earl Richard either Son or Daughter that Ordericus would have Recorded them as well as others being indeed his usual method through the whole course of his History For he could have no Legitimate Son but Earl Richard unless he had another Wife besides Ementrude Ordericus being express therein and possibly for some Reasons he might have another Wife besides Ementrude But whether Geva was by a First or second Wife I know no necessity to conclude that Ordericus should Record her I finding no such usual method of his as this which you speak of For he doth not that I see make it his business to Record what Wives or Children the Earls of Chester and other great Men had but onely speaks of them occasionally and so he also doth of some of their Illegitimate Children but if he made it his design to give an exact account of these things he ought to reckon Geva either amongst the lawful doubtful or illegitimate Children of Hugh Lupus And as to your Objection That if Geva had been Legitimate her Issue ought rather to have succeeded into the Earldom of Chester then Randle de Meschines after the death of Richard Earl of Chester That doth not at all follow because it is possible the Earldom of Chester at that time as most times Earldoms anciently were might be Entailed on the Heirs-males onely and then the Male Line being extinct why might not the King confer it as well upon Randle de Meschines who was a near Kinsman as upon a stranger Which later course is also usual at this day And it is very probable that the Earldom was Entailed on the Heirs-males onely for James York in his Vnion of Honor p. 105. says That this Randle was made Earl by Grant of King Henry the First and if so it came not to him by Descent So that all which you here object is fully answered But if it had been so that the Earldom had been to Descend to the Heirs General if Geva was Daughter of Hugh Lupus by another Wife besides Ementrude then the Earldom of Chester would have Descended from Earl Richard to Randle Meschines by his Mother being Aunt of the whole Blood to Richard and not to his Sister Geva or her Issue they being but of the Half Blood to him And whereas you desire me to shew you 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 I shall now shew you where an Honor in such a Case came to the Heirs of the younger Sister and not to the Heirs of the elder Sister which is full as much as if it were done in the Case of a Sister and an Aunt If you peruse the Magazin of Honor Collected by Mr. Bird and inlarged by Sir John Doderidge One of His Majesties Justices of the Kings Bench pag. 96. you will there find That whereas Radulfe Lord Cromwel being a Baron by Writ died without Issue having Two Sisters and Coheirs Elizabeth the Eldest married to Sir Thomas Nevil and Joan the Younger married to Sir Hunt Bourcher He who had married the Younger Sister was called to the Parliament as Lord Cromwel and not the said Sir Tho. Nevil who had married the Elder Sister so that you see no convincing Argument can be brought from the enjoyment of the Earldom by Randle de Meschines however the Case prove to be I do therefore still conceive That it is very clear that Lands or Services never were in any Age passed In libero Maritagio with a Bastard or with any one that was not of the Blood but onely for Term of Life and that with Livery and Seisin and consequently all persons to whom such Deeds or Grants were made unless for life only are certainly to be concluded Legitimate and if you will bring a Convincing Precedent to the contrary do not produce a Record or Deed of Lands or Services given with one that you suppose to be a Bastard or not of the Blood but first clearly prove That the party was certainly a Bastard or not of the Blood by some Deed Record or Ancient History and shew Lands or Services so given with her and then there will be some strength in such a Precedent But what will you say If this Deed which you alledge to be made to Geva will not at all concern Amicia if Geva were a Bastard If
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
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
you look Fitz-Herberts Graund Abridgment 9 Hen. 3. Dower 202. the words run thus Si le Roy donne certeine tre a un homme ove une feme en mariage si le bar ' nad issue pur la feme il naver la tre apres la morte la feme mes cest issu q' la feme au devaunt enherit c. So that you see in these Cases of Free Marriage my Lord Coke makes no difference between these words Ove une feme and these words With a Woman of his Kinred and by the same Reason being in the Case of Frank-marriage also Glanvile's words Cum alia qualibet muliere are to be understood with any other Woman of his Kinred onely Also which is very observable Glanvile was first made Justice of England 26 Hen. 2. as Mr. Dugdale tells you in his Chronology of Lord Chancellors Lord Keepers Lord Treasurers Justices c. which was about Forty five years before the 9 Hen. 3. Therefore what likelihood is there that the Law should be differently taken in so short a time from what it was in the time of Glanvile and especially since the Statute of Westminster the Second was not made till about Threescore years after the Nineth of King Henry the Third Fifthly Because the Author of the Book called The Laws Resolutions of Womens Rights Printed by the Assigns of John More 1632. doth tell us That in old time these Gifts in Frank-marriage were to be made to them of the Kinred as well as now His words in his Thirty third Section of Frank-marriage pag. 73. are these It was as I suppose more frequent in the old time that Men gave Lands with their Daughters in Marriage then it was at this day but now as then if a Man liberally and freely without any Money or other considerations save onely Love and Natural Affection give Lands or Tenements to another Man with a Woman which is a Daughter Sister or Cosin to the Donor in Frank-marriage whether it be tempore Matrimonii vel ante vel post This word Frank-marriage maketh an Estate of Inheritance viz. to the Donees and the Heirs of their Two Bodies and they shall hold quite of all manner of Services except the pure Fealty till the Fourth degree be past but the Issue in the Fifth degree and his Descendant shall hold of the Donor and his Heirs as they hold over Sixthly Because the Author of the old Treatise commonly called Fleta in the Third Book and Eleventh Chapter De donationibus in Maritagiis doth imply that these kind of Gifts must be made to them of the Kinred his very words are these Est autem quoddam Maritagium liberum ab omni servitio solutum donatori vel ejus haeredibus usque ad tertium haeredem vel usque ad quartum gradum faciendum debent gradus sic computari ut Donatorius primum faciat gradum haeres ejus secundum gradum haeres haeredis tertium haeres secundi haeredis quartum qui quidem tenebitur ad servitium ut ad homagium prius autem minime ne Donator vel ejus haeredes per homagium homagii acceptionem a reversione repellantur sed in quarto gradu pro eo quod tune vehementer presumitur quod terra non est pro defectu haeredum donatoriarum reversura quia etsi propinquos haeredes non habeat vel cum habeat defecerint ad donatorem vel ejus haeredes qui homagium ceperint non erit terra reversura dum tamen aliquis remotus de consanguinitate appareat qui jus in haereditatem poterit vendicare alioquin evanescit homagium revertetur Et cum de sanguine homagium factum fuerit extunc obligatur homo ad servitium quia servitium semper sequitur homagium c. Seventhly Because Bracton lib. 2. cap. 7. par 3. says thus Et sciendum quod terra datur aliquando ante sponsalia propter nuptias a patre mulieris vel alio parente ipsi marito cum muliere aliqua vel utrique simul sc tali viro uxori suae quod idem est eorum haeredibus vel alicui mulieri ad se maritandam c. And presently after Fit etiam talis donatio ante Matrimonium contractum aliquando in ipso contractu aliquando post contractum Which in my apprehension is as much as to say That this kind of Gift can onely be made by the Father Mother or some other Kinsman for the word parens or parent in Latine and French hath oftentimes that signification and of this opinion was my Lord Coke For in his Institutes upon Littleton pag. 21. b. he tells you That one of those things incident to a Frank-marriage is that the Woman that is the cause of the Gift be of the Blood of the Donor and for this as appears Letter 1 amongst other Proofs he in the Margent cites Bracton lib. 2. cap. 7. Also which is very considerable Mr. Bracton here useth this expression Cum muliere aliqua and yet meaneth a Kinswoman and why then should we think that Mr. Glanvile doth not mean a Kinswoman though he use this expression Cum alia qualibet muliere and especially since my Lord Coke in the very Page of his Institutes last mentioned quotes Mr. Glanvile lib. 7. cap. 18. And amongst others that expression of his Cum aliqua muliere in Maritagium and also in the Margent cites Glanvile lib. 7. cap. 1. the very place on which you frame your Argument which he would never have done if he had thought the opinion of Glanvile had been contradictory to his own And if there had been any such thing as that the Law in this point had been severally taken in so very short a space as betwixt the time of Bracton and Glanvile sure my Lord Coke would in that place have taken notice thereof Eightly and lastly The Law appears to be the same in this Case which it was in Glanvile's time because as Littleton tells us in his 271 Section Gifts in Free-marriage were by the Common Law before the Statute of Westminster the Second Now the Common Law hath always been the same and as my Lord Coke tells us in his First Part of Institutes fol. 115. b. hath no Controuler in any part of it but the High Court of Parliament and if it be not abrogated or altered by Parliament it remains still But the Parliament hath made no alteration concerning Gifts in Free-marriage except the said Statute of Westminster the Second cap. 1. By which they turned the Estate that passed by those Gifts in Feesimple into an Estate Tail all Inheritances being Feesimple before the said Statute so that in other respects the Law in this Case remains as it did And that this is so I conceive is very clear because I suppose neither you nor any other person can tell any one particular in which the Common Law is or hath been altered but by Act of Parliament Neither could